Central Administrative Tribunal - Delhi
Shri S. Ramu S/O Late Shri S. Somraju vs Union Of India on 10 January, 2013
Central Administrative Tribunal Principal Bench New Delhi OA No.1001/2012 Reserved on : 21.12.2012 Pronounced on : 10.01.2013 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Shri S. Ramu s/o late Shri S. Somraju R/o B-59, Jaya Darshini Residency White Fields, Kondapur, Hyderabad 500 033 Posted at Mysore Add CIT Range II. .Applicant (By Advocates: Sh. A.K. Behera) Versus 1. Union of India Through Secretary, Government of India, Ministry of Finance, Department of Revenue, North Block, New Delhi110 001. 2. The Chairman, Central Board of Direct Taxes, Government of India, Ministry of Finance, Department of Revenue, North Block, New Delhi-110001. .Respondents (By Advocate: Sh. R.N. Singh) O R D E R Dr. Ramesh Chandra Panda, Member (A):
The applicant is an Indian Revenue Service (Income Tax) (IRS in short) officer of 1983 Batch and has instituted this Original Application under section 19 of the Administrative Tribunals Act, 1985 seeking to quash the impugned order dated 05.01.2011 (Annexure A-1) and to direct the respondents to grant him ad hoc promotion to the grade of Commissioner of Income Tax w.e.f. 02.03.2007 with consequential benefits.
2. It is the case of the applicant that despite having been recommended for promotion by the Departmental Promotion Committee (DPC) which met on 5th and 6th November, 2002 and recommended the applicant along with others for promotion to the post of Commissioner of Income Tax (CIT) which was approved by the Appointment Committee of the Cabinet (ACC) on 18.02.2003, he was not promoted to the post of Commissioner of Income Tax (CIT) but his juniors were promoted w.e.f. 30.04.2003. The reason for his non-promotion was that he was placed under suspension vide order dated 04.04.2003 following a raid conducted by the CBI on 21.03.2003 in his residence. Consequently, a FIR was registered against him alleging that he was in possession of disproportionate assets. The applicants case is that the lawful assets of his relatives who are working and have independent sources of income have been included in his assets. But the applicants suspension was revoked and consequent to the revocation of the suspension w.e.f.02.03.2007, the applicant joined as Additional CIT on 05.03.2007. It is the case of the applicant that the CBI filed a report on 06.01.2006 before the Special Judge for CBI cases, Hyderabad but the Honble Andhra Pradesh High Court stayed the said proceedings pending before the Special Judge vide order dated 26.04.2007. Due to the above said reason, the recommendations of the DPC for the applicants promotion were placed in the deemed sealed cover. However, it was the case of the applicant that it was incumbent upon the Competent Appointing Authority to follow the instructions contained in DOP&T OM dated 14.09.1992 and review the promotion of the applicant on ad hoc basis after expiry of 6 months from the date of convening the 1st DPC. It is further the case of the applicant that as per para 17.8.1 of the DoP&T OM ibid, in spite of six monthly review, if the criminal prosecution did not conclude within 2 years from the date of 1st DPC, the respondents are to consider granting ad hoc promotion to the applicant for which the criteria has been enumerated viz. (i) public interest, (ii) gravity of charges, (iii) conclusion of the trial, (iv) delay in trial, and (v) likelihood of misuse of official position. In that regard, the views of the CBI are to be taken into consideration. However, despite the applicant having been recommended for promotion to the post of CIT and the recommendations of the DPC having been kept in the deemed sealed cover, the respondents did not conduct six monthly review or review after two years for which he approached the Tribunal in filing OA No. 1093/2009, which was disposed of by order dated 20.01.2010 with the following directions:-
4, The OA is, thus, disposed of with the direction that the respondents should complete their consideration for ad hoc promotion of the applicant, as per the procedure prescribed in the Office Memorandum dated 14.09.1992 within eight weeks of the receipt of a certified copy of this order and, if he is found suitable for ad hoc promotion by the DPC, he should be promoted on ad hoc basis with effect from 2.03.2007. We are prescribing eight weeks time from the date of receipt of the certified copy of the order, in view of the fact that the respondents have not carried any six-monthly review of the deemed sealed cover, as prescribed in paragraph 4 of the aforesaid Office Memorandum and have not considered his case for ad hoc promotion within the prescribed period of two years in paragraph 5.1. The applicant would be eligible for full pay and allowances from the date of his promotion i.e. 2.03.2007, if found fit for promotion by the DPC. No cost.
3. Further, the applicant also approached the Tribunal by instituting OA No.3272/2010 challenging initiation of disciplinary proceedings against him for want of approval of the charge by the competent authority and the Tribunal, in a batch of cases including the one filed by the applicant, set aside the chargesheet issued to the applicant vide its order dated 26.08.2011 on the ground that the charge sheet was not approved by the competent authority. It is the case of the applicant that even after clear directions of the Tribunal and comments offered by the CBI, which were not adverse or against the applicant and leaving the discretion to take a final decision by the respondents, the respondents issued the impugned order dated 05.01.2011 (Annexure A-1) stating therein that whereas, the competent authority after due consideration of the comments received from the DGIT (Vig.) and on consideration of the nature of charges i.e. disproportionate assets which is grave in nature and keeping in view the totality of facts and circumstances of the case has come to the conclusion that the case of Shri S. Ramu, is not a fit case for grant of ad hoc promotion to the grade of Commissioner of Income Tax at this stage. It is his case that he has not been promoted to the post of CIT but other similarly situate and circumtanced officers have been extended regular promotion despite disciplinary and criminal proceedings pending against them. He referred to one of such officers namely Shwetabh Suman, who was placed under suspension on 05.08.2005 and his suspension was revoked in September, 2007 and while the trial was pending, had been promoted as CIT on regular basis in 2012. It is further the case of the applicant that after revocation of his suspension in 2007, he has been performing his duties where he is coming in contact with the public and there is no complaint from any quarter and even no Memo has either been issued to him and there is no likelihood of misusing his position and has been assigned additional responsibilities, but he is not being accorded the ad hoc promotion. It is averred that the Competent Appointing Authority has not considered his case as per the extant Guidelines while denying him ad hoc promotion as CIT and the said review to promote him as CIT even on ad hoc basis has not been convened as prescribed in the OM dated 14.09.1992. Feeling aggrieved, the applicant made a representation seeking to accord him ad hoc promotion as CIT by contending that the revocation of his suspension was on the recommendations of the CBI, which belies the conclusion of grave charge against him and the same was still pending with the respondents and on the basis of this Tribunals direction in the earlier OA, his case for ad hoc promotion was rejected. In the meantime, the Tribunal has quashed the chargesheet vide order dated 26.08.2011 in OA No.3732/2010. In view of the aforesaid background, the applicant has instituted the instant OA, seeking to quash the order dated 05.01.2011 and to direct the Competent Authority to grant him ad hoc promotion.
4. Shri A.K. Behera, learned counsel for the applicant highlighted the background of the case and anchored his submission on the following main grounds. The first contention relates to the non-compliance of the provisions stipulated in paragraph 5 of O.M. dated 14.09.1992 as per which when the disciplinary/criminal case against a government servant is not concluded even after the expiry of 2 years from the date of meeting of first DPC a duty has been caste upon the appointing authority to consider the desirability of giving the government servant ad hoc promotion keeping in view five parameters enshrined therein. The appointing authority has been granted a legal duty to draw a balance on the basis of five parameters prescribed therein. Shri Behera would submit that the respondents called for the comments of the Director General of Vigilance in respect of the applicant on the 5 parameters who in his report gave views in respect of each of those parameters. His submission is that in all the parameters, the applicant being clear should have been granted promotion to the CIT grade at least on ad hoc basis. He goes on to highlight his contentions. (i) In respect of the 1st parameter whether the promotion of the officer will be against public interest, DG (IT) has not held the same against the applicant. In any case this was also one of the considerations at the time of revocation of his suspension. Thereafter, nothing adverse has come against the applicant. On the other hand now he has been holding the charge of two Income Tax ranges namely Gulbarga and Raichur in place of one. The applicant has been getting outstanding ACRs for the last several years and copy of the same has been furnished along with the written submission. Thus, Shri Behera submits that objectively seen this point is in favour of the applicant. (ii) With regard to the second parameter whether there is any likelihood of the case coming to a conclusion in near future. He contended that this point has not been held against the applicant. On the other hand, all authorities have agreed that there is no likelihood of conclusion of proceedings in the near future. Further, it is stated that there is no High Court case pending, and the departmental charge sheet has already been quashed by this Tribunal in OA No. 3732/2010. (iii) In respect of 3rd point whether the delay in finalization of departmental and criminal proceedings is not directly or indirectly attributed to the government servant concerned, Shri Beheras contention is that this point has not been held against the applicant. (iv) So far as 4th parameter is concerned i.e. whether there is any likelihood of misuse of official position which the government servant may occupy after ad hoc promotion, which may adversely affect the conduct of departmental case/criminal prosecution, it is contended that there is no departmental proceeding pending against the applicant now. The criminal case is under the CBI, Hyderabad. The applicant is already posted outside Hyderabad. After ad hoc promotion he can be kept out of Hyderabad. During the entire period after reinstatement nothing adverse has been reported against the applicant. (v) It is submitted that the only parameter which has been held against the applicant by the respondents is that the charges against him are grave in nature. This is also the only reason given in the impugned order dated 05.01.2011. It is purely on the basis of this parameter that the respondents have rejected the case of the applicant for ad hoc promotion to the grade of CIT even though 4 other parameters have been held in favour of the applicant. It is, therefore, submitted that rejection of the case of the applicant for ad hoc promotion purely based on one parameter is not only against the principles of balancing process evolved in para 5 of the O.M. dated 14.09.1992 but it also against the principles of balancing process evolved by the Honble Supreme Court in the case of State of Punjab and Others versus Chaman Lal Goyal [(1995)-2-SCC-570]. In the said case before Honble Supreme Court the charge against the government servant was very grave in nature and the Apex Court held that the court has to indulge in a process of balancing. Shri Beheras submission is that Tribunal has to balance all five parameters which will go in favour of the applicant.
5. In view of the above, Shri Behera would contend that the respondents did not consider the following facts and did not attach proper weightage to those points before rejecting applicants request for ad hoc promotion. He catalogued eight points in this regard. (i) The DPC had been held more than one decade back i.e. on 05/06.11.2002 pertaining to the vacancies of 2001-02; (ii) More than 600 juniors of the applicant have already been promoted as CITs; (iii) More than six years time has already elapsed even after filing of the challan/report under Section 173 of the Cr. P.C. on 06.01.2006; (iv) There was a delay of nearly 3 years in filing of the challan/report under Section 173 of Cr.P.C. as the search was conducted on the applicants premises on 21.03.2003; (v) The applicant is not in any way responsible for the delay in the finalization of proceedings; (vi) Further the work and the conduct of the applicant has all along been Outstanding or Very Good which is borne out from his entire service record with specific reference to the overall grading in his last three years ACRs i.e. 2010-11, 2009-10, 2008-09. (vii) The applicant has been given the charges of two Income Tax Ranges namely Additional CIT, Gulbarga Range as well as Additional CIT, Raichur Range. (viii) There was delay even at the time of issuance of the initial promotion order even after the approval of the ACC wherein the applicant had been found fit for promotion.
6. Advancing the ground of discrimination, Shri Behera submits that the respondents have promoted Mr. Swetabh Suman as CIT in 2012 in spite of the pendency of a criminal case relating to disproportionate assets against him in Special CBI Court and in the counter reply the respondents have admitted the fact that Mr. Swetabh Suman was promoted as CIT in spite of pendency of grave charge of disproportionate assets against him. Thus, the charge of grave misconduct as a ground cannot be raised against the applicant only particularly when 4 other parameters as enunciated in the OM dated 14.09.1992 have been held by the respondents in favour of the applicant. Thus, it was contended that there was no objective application of mind by the respondents in respect of the applicant. On an objective analysis, the applicant is entitled for ad hoc promotion.
7. The next set of submissions advanced by Shri Behera were relating referred to the provisions in para 4 of the OM dated 14.09.1992 as per which the appointing authority was mandated to review the cases where departmental/criminal proceedings pending against government servant had inordinately been delayed. Such review is required to be conducted every six months. Even if it is presumed that a correct review has been done on the basis of which the impugned order dated 05.01.2011 was passed, the fact remains that the said review was conducted on 20.11.2010. Thereafter four other six monthly reviews have become due on 19.05.2011, 19.11.2011, 19.05.2012 and 19.1.2012. In the counter affidavit, the respondents have stated that the department has already processed the case for the applicant for six monthly reviews however the result is awaited. The said counter affidavit was filed on 30.08.2012 i.e. more than 4 months back. At the time of oral arguments this Tribunal asked the counsel for the respondents as to when such six monthly reviews were conducted in respect of the applicant and what was the result thereof. The counsel for the respondents was also directed to produce the original records of the same. After producing the original records, the learned counsel for the respondents admitted that the six monthly review which were due on various dates had not been conducted.
8. The next set of contentions canvassed by the learned counsel for the applicant was on the power of review and granting of ad hoc promotion under paragraphs 4 and 5 of the OM dated 14.09.1992 vested with the appointing authority concerned of the government servant. In the instant case the applicant is working as Additional CIT whose appointing authority is the President of India. Under the Allocation of Business Rules read with Transaction of Business Rules, the power of President of India has been delegated only to the Minister concerned. However, in the instant case the consideration and review for not granting ad hoc promotion to the applicant was taken at the level of Chairman, Central Board of Direct Taxes (CBDT) on 20.11.2010. On this ground also the impugned order dated 05.01.2011 is not sustainable and is liable to be quashed.
9. In view of the aforesaid submissions, it is urged that under no circumstances the impugned order dated 05.01.2011 is sustainable in law.
10. On receipt of notice from the Tribunal, the respondents have submitted counter reply affidavit through Shri R.N. Singh, learned Senior Central Government counsel. Opposing the contentions canvassed by the learned counsel for the applicant, it was submitted by Shri R.N. Singh that the impugned order dated 05.01.2011 was passed by the Competent Authority in compliance of the directions of the Tribunal dated 20.01.2010 in OA No. 1092/2009 and after due consideration of the applicants representation dated 12.10.2010. He contends that the Competent Authority considered the nature of charges against the applicant i.e. disproportionate assets and found the same as grave and decided that the applicants case was not fit for ad hoc promotion to the CIT grade. His contention is that there is no violation of the statutory, constitutional or binding provisions by the action of the respondents in denying him ad hoc promotion. Shri Singh submits that the applicants case for promotion as CIT, though as approved by the ACC, was put under deemed sealed cover as grave criminal offence was under investigation and he was placed under suspension on 04.04.2003. Besides, sanction of criminal prosecution against the applicant was issued vide order dated 13.12.2003 under Section 19(1)(a) of the Prevention of Corruption Act, 1988. It was further submitted that in compliance of DOP&T OM dated 14.09.1992, his case for ad hoc promotion was considered but did not find favour with and order dated 05.01.2011 was issued. Learned counsel would refer to the reply affidavit to say that respondents have already processed the applicants case for six monthly reviews again along with other similar cases and result of the same was awaited. In view of the above submissions, it was argued to dismiss the OA.
11. Having heard the above contentions of the rival parties with the assistance of their respective counsel, we have very carefully perused the pleadings. There are no dispute with regard to the facts of the case. The controversies in the present case are in narrow compass:-
(i) Whether the Competent Authority has followed the Office Memorandum No.22011/4/91-Estt.(A) dated 14.09.1992 while considering the applicants case and rejecting his request for ad hoc promotion to the post of CIT vide order dated 05.01.2011 and whether the said order is legally sustainable? (ii) Whether the Competent Appointing Authority has considered and reviewed the applicants case as per the provisions of the aforesaid OM dated 14.09.1992?
As both the issues are inter-linked and inter-twined, we would consider both these issues together.
12. The relevant OM in the present case being the DOP&T OM dated 14.09.1992 and both the parties having referred to paragraphs 4 & 5 of the said OM very extensively, it would be appropriate for us to take the extract of paragraphs 4, 5, 5(1) and 5(2), which read as follows:-
Six Monthly review of Sealed Cover cases 4. It is necessary to ensure that the disciplinary case/criminal prosecution instituted against any Government servant is not unduly prolonged and all efforts to finalize expeditiously the proceedings should be taken so that the need for keeping the case of Government servant in a sealed cover is limited to the barest minimum. It has, therefore, been decided that the appointing authorities concerned should review comprehensively the cases of Government servants whose suitability for promotion to a higher grade has been kept in a sealed cover in the expiry of 6 months from the date of covering the first Departmental Promotion Committee which had adjudged his suitability and kept its findings in the sealed cover. Such a review should be done subsequently also every six months. The review should, inter alia, cover the progress made in the disciplinary proceedings/criminal prosecution and the further measures to be taken to expedite their completion. Procedure for ad hoc promotion
5. In spite of the six monthly review referred to in para 4 above, there may be some cases, where the disciplinary case/criminal prosecution against the Government servant is not concluded even after the expiry of two years from the date of the meeting of the first DPC, which kept its findings in respect of the Government servant in a sealed cover. In such a situation the appointing authority may review the case of the Government servant, provided he is not under suspension, to consider the desirability of giving him ad-hoc promotion keeping in view the following aspects:-
(a) Whether the promotion of the officer will be against public interest;
(b) Whether the charges are grave enough to warrant continued denial of promotion;
(c) Whether there is any likelihood of the case coming to a conclusion in the near future;
(d) Whether the delay in the finalization of proceedings, departmental or in a court of law, is not directly or indirectly attributable to the Government servant concerned; and
(e) Whether thee is any likelihood of misuse of official position which the Government servant may occupy after ad-hoc promotion, which may adversely affect the conduct of the departmental case/criminal prosecution.
The appointing authority should also consult the Central Bureau of Investigation and take their views into account where the departmental proceedings or criminal prosecution arose out of the investigations conducted by the Bureau.
5.1 In case the appointing authority comes to a conclusion that it would not be against the public interest to allow ad-hoc promotion to the Government servant, his case should be placed before the next DPC held in the normal course after the expiry of the two year period to decide whether the officer is suitable for promotion on ad-hoc basis. Where the Government servant is considered for ad-hoc promotion, the Departmental Promotion Committee should make its assessment on the basis of the totality of the individuals record of service without taking into account the pending disciplinary case/criminal prosecution against him.
5.2 After a decision is taken to promote a Government servant on an ad-hoc basis, an order of promotion may be issued making it clear in the order itself that:-
the promotion is being made on purely ad-hoc basis and the ad-hoc promotion will not confer any right for regular promotion; and the promotion shall be until further orders. It should also be indicated in the orders that the Government reserve the right to conceal the ad-hoc promotion and revert at any time the Government servant to the post from which he was promoted.
13. As per the above said OM, the Competent Authority to review the case of the Government servant in whose case the disciplinary/criminal prosecution has not been concluded even after the expiry of two years from the date of meeting of the first DPC is the Appointing Authority of the Government servant. The said OM of 14.09.1992 is fully applicable in the case of the applicant as his promotion to the grade of CIT was considered on 5th and 6th November, 2002 by the DPC for the panel year 2001-02 and 2002-03 and even the ACC approved the said Panel where applicants name figured. But for the applicants suspension vide order dated 04.04.2003 and the promotion of the officers in the panel given effect to from 30.04.2003, the applicant would have been promoted and in view of the extant guidelines, his case was put in the deemed sealed cover. Therefore, as per paragraph 5 of the OM dated 14.09.1992, the Appointing Authority was to consider the applicants case after two years from the date of the DPC. In the present case the DPC having met in November, 2002 the said review would have been due right from November, 2004, but in November, 2004 the applicant was still under suspension and his suspension was revoked w.e.f. 02.03.2007. It is, therefore, pertinent to mention that the review enunciated in paragraph 5 of the OM had become due with effect from six months after 05.03.2007 the date he joined back on the revocation of his suspension. The said OM envisages that applicants case for ad hoc promotion should have been placed before the next DPC. But that has not been done. Even the Appointing Authority has not considered the case of the applicant before the impugned order dated 05.01.2011 was issued.
14. At this stage, we may refer to the file F.No.A.32011/21/2001-Ad.VI (Volume I and II) placed before us by the respondents. Pursuant to the direction dated 20.11.2010 issued by this Tribunal in OA No.1093/2009, views of DGIT (Vig.) and in turn comments of the S.P., CBI, Hyderabad were called. The S.P., CBI, in its letter dated 03.11.2009 has left the matter to the discretion of the Department to decide whether the applicant is entitled to get ad hoc promotion to the grade of CIT. On receipt of the views of DGIT(Vig.) parameter-wise analysis was done keeping in mind the DOP&T OM dated 14.09.1992 and the applicants representation, and Chairman, CBDT has passed order on 20.11.2010 (at page 56/N of the file) inter alia indicating that the nature of charge appears to be grave as per DG (V)s comments and decided against his ad hoc promotion. The draft order was approved by Chairman, CBDT on 21.12.2010 and order was finally issued on 05.01.2011. Subsequently, the matter was again processed by the respondents in July, 2011 but was returned from the Chairman, CBDT to know whether any order of CAT had been received again in the case or only a fresh application has been made by the applicant. Since then no further action has been taken in so far as the six monthly review of the applicants ad hoc promotion as per paragraph 5 of the DOP&T OM dated 14.09.1992 is concerned.
15. Our careful perusal of the file placed before us revealed that only one review has been undertaken and that too in October, 2010, and the orders on the applicants representation were passed on 05.01.2011. A further careful examination of the file would reveal that the Chairman, CBDT was the highest authority who has considered and reviewed the applicants case for ad hoc promotion. It is evident from the provisions in paragraph 5 of the OM dated 14.09.1992 that the Competent Authority is the Appointing Authority and in case of the applicant in the grade of Additional CIT, Chairman, CBDT may be the Controlling Authority but, surely, is not the Appointing Authority. In case of Indian Revenue Service Officers of the applicants grade, the Competent Appointing Authority is the President of India and as per the Business Rules, the powers of the President as Appointing Authority have been delegated to the Minister of the Department concerned in the Council of Ministers of Union of India. Insofar as the review of the applicants case for ad hoc promotion is concerned, since the Competent Authority i.e. Minister of Finance has not considered and reviewed his case and the Chairman, CBDT has done the same, we have no hesitation to conclude that the incompetent authority has reviewed the applicants case for ad hoc promotion under OM dated 14.09.1992. Further, illegality has been caused by not placing applicants ad hoc promotion matter before the next DPC. Thus, the impugned order dated 05.01.2011 is ab initio illegal having been passed on the basis of the decision taken by the Authority not competent to do so.
16. Further, considering the facts of the applicants case for review, it is seen that only one review has been held and which has also been done in an illegal manner whereas the OM dated 14.09.1992 prescribes six monthly reviews. In this context, since the applicant was re-instated in service on 02.03.2007 and he joined the post of Additional CIT on 05.03.2007, the six monthly review should be calculated w.e.f. 05.03.2007. This means that the first six monthly review has been due as on 05.09.2007 and thereafter further six monthly review should have been done. The careful perusal of the file placed before us does not disclose any concrete step having been taken to convene DPC to undertake such review of the applicants ad hoc promotion. Nor there is any recommendation of the DPC placed before the Competent Appointing Authority for any decision. In this regard, the respondents have miserably failed and have not been able to establish their case which has been advanced during the final hearing that the six monthly review has been done and the result of the same is being awaited. Non-convening of DPC to review his case for ad hoc promotion and non-consideration by the Appointing Authority are procedural infirmities which have not been attempted to cure by the respondents.
17. Considering the case on the point of view of discriminatory treatment as canvassed by the learned counsel for the applicant, it is noticed that in the OA applicant has taken the case of Mr. S. Suman and the respondents in their reply affidavit are silent and have not denied specifically on the grounds taken by the applicant. Thus, the inference to be drawn is that Mr. Suman being similarly placed as the applicant, namely involved in a criminal case which was pending against Mr. S. Suman for disproportionate assets in the CBI Court if such charges are not found to be grave, how the similar charges pending against the applicant would become grave. Notwithstanding that, Mr. S. Suman has been promoted to the grade of CIT, whereas the applicant has been denied the same. Therefore, on the ground of discrimination, in our considered view, the applicant has established his case.
18. With regard to the five parameters given in the OM dated 14.09.1992, it has been established that on four parameters the applicant has a clear case for consideration for promotion on ad hoc basis. Only one ground that the applicant has been facing grave charges has become impediment for his ad hoc promotion. The respondents in considering and rejecting the applicants request vide order dated 05.01.2011, though we have treated the same as illegal, the respondents have not examined the points raised by the applicant in the OA that he has got the two IT Ranges as Additional CIT, he has secured Outstanding/Very Good overall ratings in his ACRs and in the disproportionate assets case the assets belonging to the applicants relations having been taken into consideration, the Competent Appointing Authority is directed to re-examine the whole issue of grave charges.
19. Considering the totally of facts and circumstances of the case and taking note of the DOP&T OM dated 14.09.1992, we are of the considered opinion that the order dated 05.01.2011 is not legally sustainable as the same has not been passed by the Competent Appointing Authority and the DPC has not considered his ad hoc promotion to the grade of CIT. Resultantly, the order dated 05.01.2011 is quashed and set aside and the Competent Appointing Authority is directed to take the first review of the applicants case to decide whether applicants ad hoc promotion to the grade of CIT as on 05.09.2007 would be against the public interest as per paragraph 5 and 5.1 of the DOP&T OM dated 14.09.1992. In case he is found suitable as per OM dated 14.09.1992, the same shall be placed before a special DPC to be convened and if found fit, he shall be accorded ad hoc promotion with effect from that date with all consequential benefits. In case he is found not fit, the Competent Appointing Authority is to pass a reasoned order. It is further provided that thereafter, six monthly review should be taken up to till date, and on each event of six monthly review, if he is not extended ad hoc promotion, a specific order should be passed as to on what grounds the applicant has not been found suitable for ad hoc promotion to the grade of CIT. At any point of time he is found to be fit for ad hoc promotion to the CIT grade the same shall be extended to the applicant. Let the exercise as ordained above be completed within a period of three months from the date of receipt of a certified copy of this order.
20. In view of the above, the Original Application having merit is allowed in terms of our aforesaid order and directions. Due to the typical nature of the case, there is no order as to costs.
(Dr. Ramesh Chandra Panda) (Syed Rafat Alam) Member (A) Chairman /naresh/