Meghalaya High Court
Union Of India & Ors vs . Dr. U. K. Mishra on 2 July, 2018
Equivalent citations: AIRONLINE 2018 MEG 79
Bench: Mohammad Yaqoob Mir, S.R. Sen
Serial No.05
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP (C) No.320/2016 Date of Order: 02.07.2018
Union of India & ors Vs. Dr. U. K. Mishra
Coram:
Hon'ble Mr. Justice Mohammad Yaqoob Mir, Chief Justice
Hon'ble Mr. Justice S.R. Sen, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. R Debnath, Adv.
For the Respondent(s) : Mr. M. Chanda, Adv. with
Mr. P. Nongbri, Adv.
i) Whether approved for reporting in Yes
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
Per Mohammad Yaqoob Mir, CJ,
1. The order dated 24.06.2015 passed by the Central Administrative Tribunal(CAT) in O.A.No.265 of 2013 is assailed by medium of this writ petition.
2. Vide order impugned, while holding the penalty of 'Censure' cannot be a bar for promotion as per DoPT OM No.22011/2/78-Estt.(A) dated 16.02.1979, petitioners have been directed to promote respondent to the post of Deputy Director General(Geology) in Pay Band-4 ( Rs.37,400 - 67,000/- ) plus Grade Pay of Rs.10,000/- from the date of review DPC held on 25.07.2013 provided the respondent is found otherwise fit.
13. Respondent Senior Geologist was on deputation as Director (Science & Technology), North Eastern Council Secretariat (NECS), Shillong w.e.f. 01.09.2006 to 31.08.2010. Later, on the request of North Eastern Council Secretariat, the deputation tenure was extended for one year. Meanwhile, it was noticed that the respondent was involved in a case which was referred to CBI for investigation. The CBI concluded that the departmental lapses or irregularities on the part of the respondent and others were well established in the matter of recommendation for release of funds from North Eastern Council to North Eastern India Trust for Education and Development for implementation of the project on Integrated e-education and Tele-health Programme for 10 schools in Meghalaya. Finally, CBI recommended for Regular Departmental Action.
4. The respondent was repatriated on 01.08.2011. Thereafter, he joined the post of Senior Geologist in GSI.
5. Respondent filed O.A.73/2011 before the Central Administrative Tribunal, Guwahati Bench which was disposed of on 26.03.2012 with a direction to the petitioners herein for consideration the case of the respondent for promotion to the post of Superintending Geologist and further promotion to the post of Director (Geology) with effect from the joining of his immediate junior Shri Rajeev Srivastava. Respondent was promoted to the post of Superintending Geologist and further to the post of Director (Geology) notionally w.e.f.26.12.2006 and 01.09.2008 respectively.
6. The respondent filed another O.A.No.350/2012 claiming promotion to the post of DDG(G) in GSI before Central Administrative Tribunal, Guwahati Bench.
7. The Departmental Inquiry proceedings under Rule 4 of CCS(CCA) Rules, 1965 were initiated for submitting false statement/report by the 2 respondent while working as Director(S & T), NECS, Shillong without proper inspection about progress of the project with regard to installation e-education client software by North Eastern India Trust for Education and Development(NEITED) through Global Telemedicine Healthcare Network Foundation in all the ten selected schools of Meghalaya and also recommended to release of further installments of funds.
8. During the pendency of the inquiry, a Review Departmental Promotion Committee (DPC) for the post of Deputy Director General(G) was submitted to UPSC on 28.05.2013. On completion of inquiry, the competent authority of the Ministry of Mines vide letter dated 22.07.2013 had imposed the lowest minor penalty of 'Censure' on respondent for negligence of duty as listed under Rule 11 of CCS(CCA) Rules, 1965.
9. The UPSC on 25.07.2013 held the Review Departmental Promotion Committee (DPC) wherein the respondent was reflected as an eligible candidate but same was kept in Sealed Cover due to non- clearance of vigilance angle. Regarding recommendation of another officer by the DPC, approval was received on 22.10.2013 from the competent authority (Approval of Cabinet Committee). Thereafter, promotion to the said officer was issued on 20.11.2013.
10. The respondent on reaching superannuation, retired on 31.07.2013.
11. The admitted facts are that the Departmental Promotion Committee had cleared the name of respondent, the competent authority had imposed the lowest minor penalty of 'Censure' on 22.07.2013 whereas the DPC was held thereafter on 25.07.2013. When DPC was held, the inquiry was concluded and punishment was imposed. When it was so, there was no requirement of keeping the result of the respondent in Sealed Cover, it appears to be lapse or deliberate act on the part of petitioners, which in turn has given rise to the situation of keeping the result of the respondent in Sealed Cover. In case same would have been 3 brought to the notice of the DPC, the respondent would have been recommended and promoted on time.
12. Minor penalty of Censure does not operate as a bar for promotion as is clear from the DoPT OM No.22011/2/78-Estt.(A) dated 16.02.1979. Petitioners appeared to have been conscious of the fact that minor penalty of 'Censure' will not be a bar for promotion that is why, they had not brought the same to the notice of the DPC which was held on 25.07.2013. Same position has been rightly noticed by the Tribunal.
13. Learned counsel for the petitioners contended that as per OM No.22011/91-Estt.(A) dated 14.09.2012, when the penalty is imposed on the Government servant as a result of the departmental proceedings, the findings in Sealed Cover shall not be acted upon. Case for promotion of such officer can be considered by the next DPC in the normal course having regard to the penalty imposed on him.
14. The procedure prescribed in the said OM has not superseded the procedure as prescribed under OM dated 16.02.1979 except for one position i.e., in case penalty is imposed subsequent to the decision of the DPC then sealed cover result is not to be acted upon subsequent thereto. In the instant case, DPC was held on 25.07.2013 and the respondent had to retire on 31.07.2013 that being so, petitioners should have brought the decision of disciplinary committee dated 22.07.2013 to the notice of the DPC who would have considered the same while treating the respondent as eligible.
15. Para 7 of OM dated 14.09.1992 is not applicable to the respondent for two reasons: first, when the DPC was held on 25.07.2013, the disciplinary committee had taken the decision on 22.07.2013. Further, the respondent had to retire on 31.07.2013. In such circumstances, it is the total lapses on the part of the petitioners for having not submitted the result of the disciplinary committee to the DPC. No reasonable 4 explanation is forthcoming from the petitioners for not having placed the result of the Departmental Inquiry before the DPC on 25.07.2013. For the lapses of the petitioners, respondent cannot be deprived of his right to promote for which he has been found eligible by the DPC.
16. Reliance placed on the judgment reported in 2007(5) SCC 425 (Union of India & Ors. Vs. A.N.Mohanan) is of no help of the petitioners. Para 11 of the judgment is relevant to be quoted herein:
"11. Awarding of censure, therefore, is a blameworthy factor. A bare reading of Rule 3.1 as noted above makes the position clear that where any penalty has been imposed the findings of the sealed cover are not to be acted upon and the case for promotion may be considered by the next DPC in the normal course."
17. In the reported case, facts were altogether different. At the time of DPC was held, findings were kept in sealed cover. Subsequent thereto, on completion of departmental inquiry, punishment of censure was awarded. It is in that background, it has been held that since the punishment has been awarded, therefore, case of the employee was to be considered in the next DPC. Whereas, in the case in hand, as is made clear herein above, penalty was awarded on 22.07.2013; DPC was held on 25.07.2013 and the respondent was to retire on 31.07.2013. Therefore, the approach of the petitioners was blameworthy aimed at depriving the respondent of his promotion.
18. For the foregoing reasons, the learned Tribunal has rightly passed the impugned order and same does not call for any interference. Petition accordingly dismissed. No order as to costs.
(S.R. Sen) (Mohammad Yaqoob Mir)
Judge Chief Justice
Meghalaya
02.07.2018
AS
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