Central Administrative Tribunal - Delhi
Pawan Kumar vs Ntro (Union Of India) & Ors. Through on 16 December, 2013
Central Administrative Tribunal Principal Bench OA No. 4226/2012 Order Reserved on : 11.10.2013 Order Pronounced on: 16.12.2013 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. Birendra Kumar Sinha, Member (A) Pawan Kumar, S/o late Shri Hanumant Singh, Aged about 39 years, R/o A-23, Sector 71 Noida (UP)-2013013 -Applicant (By Advocate: Shri M.K. Bhardwaj) -V E R S U S- NTRO (Union of India) & Ors. Through 1. The Chairman, National Technical Research Organization (NTRO) Government of India, Block-3, Old JNUCampus, New Delhi-110067 2. The Centre Director (CMMS), National Technical Research Organization (NTRO) Government of India, Block-3, Old JNU Campus, New Delhi-110067 3. Controller of Administration (COA), National Technical Research Organization (NTRO) Government of India, Block-3, Old JNU Campus, New Delhi-110067 4. Director (Establishment-II), National Technical Research Organization (NTRO) Government of India, Block-3, Old JNU Campus, New Delhi-110067 -Respondents (By Advocate: Shri Rajesh Katyal) O R D E R
Dr. Birendra Kumar Sinha:
The applicant vide the instant Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, assails the circular of the respondent organization dated 04.07.2012 and the advertisement attached thereto inviting applications for filling up the post of Director (Admn.) in PB-4 in the scale of Rs.37400-67000 with a Grade Pay of Rs.8700/- on deputation basis.
2. The case of the applicant is that he was initially appointed as Assistant Commandant in SSB and joined the respondent organization on deputation basis on 04.07.2005 as Assistant Director (Admn.) in the revised pay scale of Rs.10000-15200 on 21.06.2006. The applicant was promoted to the rank of Deputy Director (Admn.) on absorption basis upon selection through open advertisement in PB-3 in the pay scale of Rs.15600-39100 with Rs.7600 GP. It is the case of the applicant that he attracted the ire of his colleagues and senior officers on account of his integrity, hard work and devotion to duty for which he was harassed in many ways including a temporary transfer to Bhuj against the transfer policy. The applicant has since completed 5 years of regular service on 21.06.2011 and has become eligible to be considered for promotion to the post of Director (Admn.). The applicant submits that he had protested against the illegal appointment of one Jade Srinivasulu as Director (Admn.) who despite being junior to the applicant in Government service, was installed through machination of the respondent authorities ignoring the claim of the applicant. The applicant had made a representation against the same and on 15.12.2011, 15.02.2012, 30.03.2012 and 12.09.2013, he submitted repeated representations for holding DPC. In the year 2011, the applicant had completed the qualifying period of five years and was hence fully eligible for promotion to the post of Director (Admn.)
3. The applicant submits that the NTRO is a new organization which came into existence in the year 2004. As a consequence of this, the systems relating to recruitments and other service matters have taken some time to evolve. Till the year 2006, no Recruitments Rules had been promulgated and the organization was being guided by the instructions of the DOPT. It was only in the year 2006 that the National Technical Research Organization (Administrative) Service Rules, 2006 came into force vide the OM dated 02.11.2006. The grievance of the applicant is that there are 03 posts of Director (Admn.) and all of them prior to promulgation of the new RRs were to be filled up by promotion failing which by deputation. After the promulgation of new RRs, two posts are to be filled up by promotion and one by deputation. The applicant had become eligible to be considered for promotion to the post of Director (Admn.) on completion of his qualifying period prior to the promulgation of the new RRs in the year 2011. However, the respondents did not take any action for holding the DPC despite instructions to this effect from the DOPT vide OM dated 14.12.2000 providing that the DPC be held without delay to ensure promotion immediately after the post becoming vacant. Thereby, it was incumbent upon the respondents to prepare a select panel well in advance of the vacancy accruing i.e. in the year 2010. Instead, the respondents have circulated the posts for being filled up by deputation vide the impugned letter dated 4.7.2012 and advertisement has also been published to the same effect in the Employment News dated 21-27.7.2012. This advertisement itself clearly provides that the post of Director (Admn.) was to be filled up by promotion failing which by deputation. The applicant has further alleged that a copy of the RRs of the respondent organization has deliberately been kept secret and has not been provided to him. Instead, by circulating the posts none of the respondents is to deprive him of his original promotion. When the applicant acquired eligibility for promotion w.e.f. 21.6.2011, the regular RRs were not there and even after regular RRs being put in place, he has to be considered for promotion only; where he has not found fit, the choice of deputation can be exercised.
4. The learned counsel for the respondents has argued that the NTRO being set up in 2004, there were no RRs necessitating the recruitment to be made on the basis of draft rules. As a consequence of this, large scale irregularities were practiced in the recruitment of personnel. The appointment of the applicant is also irregular and is under inquiry of the organization. The applicant had been appointed as being Commander in the scale of Rs.8000-13500/- w.e.f. 17.8.1998 and on deputation to ARC w.e.f. 1.4.2003 to 1.7.2005 under post of SFO (G) in the scale of Rs.8000-13500/-. He was granted non functional senior time scale of Rs.10000-15200/- in his parent department w.e.f. 2.8.2003. He was appointed as Assistant Deputy Director from 4.7.2005 and was subsequently absorbed as Deputy Director w.e.f. 21.6.2006. Taking a note of the irregularities committed in making recruitment of personnel to the respondent organization, the respondents had ordered comprehensive review of all the appointments made. During the course of the review, it was found that though the last date for receiving application for deputation to the respondent organization was 10.1.2005, 7 applications were received, but there was no application filed by the applicant. Despite this, the application has not been applied on due date. The selection had recommended the applicant for appointment on 11.4.2005. The inquiry reveals that his application had been actually received on 26.4.2005 and he was thus ineligible for appointment. Still he was considered and appointed which in itself is grossly irregular. Thus, the appointment of the applicant is void ab initio and it does not give rise to any kind of right. This inquiry is being conducted by an IPS officer in the rank of Inspector General of Police. The applicant has relied upon a judgment delivered by the Honble Supreme Court in District Collector, Vizianagaram Vs. M.Tripurasundari Devi [(1990)4SLR 237.
5. The learned counsel for the respondents has further submitted that the applicant has been issued a charge-sheet on 21.9.2011 under Rule 14 of CCS(CCA)Rules, 1965 for unauthorizedly possessing 17 sensitive documents of the organization unrelated to his official duties, thereby endangering the security of classified documents and for unauthorizedly installing softwares on his computer, downloading and storing pornographic images in his official computer and also for charges related to unauthorizedly using pen drive and keeping classified data in it, writing pseudo/anonymous complaints to high dignatries/officers, making false statements against Dr. S.M. Bhaskar.
6. The learned counsel for the respondents further submits that new RRs being introduced in 14.11.2011 for the administrative cadre of NTRO. As per the new RRs, there are 3 posts of Director (Group A, PB-4, Rs.37400-6700, GP Rs.8700/-). Out of these 3 posts, 66 2/3% are to be filled by promotion (from Deputy Director having five years of regular service) failing which by deputation and 33 1/3 on deputation from officers under the Central Govt. holding analogous post or with five years regular service in the Grade Pay of Rs.7600/-. Thus, one post is to be filled up by deputation. The impugned order dated 4.7.2012 was issued inter alia for filling up one post of Director. It was followed by advertisement in the Employment News dated 21-27.07.2012. The learned counsel for the respondents concluded his argument for holding that the NTRO is an organization engaged in security of the country and its officers can be transferred anywhere in the country. The applicant filed OA No. 4002/2012 regarding his transfer to Bhuj which is still pending consideration.
7. We have carefully considered the pleadings of the parties, the documents submitted by them and the oral submissions made by the respective counsels. On the basis thereof, the following issues appear germane to this case:-
Whether the applicant has acquired a right to be considered for promotion to the rank of Director (Admn.) w.e.f. 21.6.2011?
Whether the inquiry and the department proceeding against the applicant will debar him from being considered?
(3) What relief, if any, can be provided to the applicant?
8. Insofar as the first of the issues is concerned, it is an admitted position that the RRs of the respondent organization i.e. National Technical Research Organization (Administrative) Service Rules, 2006, hereinafter referred to as Service Rules 2006 came into force on 2.11.2006. Further admitted by the learned counsel for the respondents that these rules have not been divulged to the public at large. Sub-clause 1 of Rule 3 of these Rules provides that there shall be constituted a service to be known as the National Technical Research Organization (Administrative) Service. Sub-clause 2 of Rule 3 provides that officers appointed to the Service shall be required to work in any of the establishments or units under the respondent organization. As per Rule 7 of the Service Rules, 2006, the method of recruitment in each grade, age limit, qualifications and other matters relating thereto shall be as specified in Schedule-II. As per these Rules, there are four posts of Director (Admn.) as provided in 2006 Rules subject to variations dependent on workload. It is to be filled up by promotion failing which by deputation or absorption or re-employment. The qualifications for the post of Director have been provided in Column 12 of Schedule:-
1. Promoton:-
Deputy Director having five years regular service in the grade.
2. Deputation or Absorption or Re-employment Officers under the Central Government preferably of Central Secretariat Service or Armed Forces Head Quarters Service:
(a) holding analogous post on regular basis or having five years service on regular basis in the scale of Rs.12000-16500 or 8 years regular service in the grade of Rs.10000-15200 or equivalent in their parent cadre or department; and
(b) possessing 12 years experience in dealing with Administration and Establishment in Group A capacity in scientific or security or intelligence departments under the Central Government.
Re-employment:
Retired Officers of Armed Forces or Central Government Ministries or Departments/Security or Intelligence Organisations, who have retired on superannuation and possess qualifcationss/experience prescribed for deputation provided such candidates tenure will not extend beyond 65 years of age. The recruitment is to be made by DPC headed by Chairman of the Administration. Column 14 further provides that consultation with the UPSC is not necessary. From the above, it becomes clear that there were four posts of Director and that as per the qualification of 5 years of qualifying service in the grade of Deputy Director. The applicant became eligible for appointment on 26.7.2011. It is further to be noted that till that time, Service Rules 2006 were in force. The new rules have come into force on 14.11.2011. Consideration of the applicant for the post of Director is appeared by two infirmities-(i) at the time of his appointment, he was not meeting the norms of DOPT communicated vide OM dated 25.5.1998 (R-5) as he was actually holding the substantive post in the grade of Rs.8000-13000; and that his application had been received late and yet he was considered. The copy of the advertisement dated 13.4.2006 advertising 3 posts of Deputy Director (Admn.) in the scale of Rs.12000-375-16500 provides as under:-
(a) Officers of the Central Government Departments/Organizations holding analogous posts; or should have four years of regular-service in the post carrying the pay scale of Rs. 10000-325; or should have seven years regular service in the post carrying pay scale of Rs. 8000-275-135000.
(b) Should have minimum five years experience in Establishment and General administration maters in supervising capacity and possessing knowledge of rules and regulations governing such matters and office procedure.
(c) Should have knowledge of computer operation.
Desirable Possessing experience in Administrative and Establishment fields preferably in Security/Intelligence Organisations under Central Government. The applicant applied for this post and he was appointed on the basis of absorption w.e.f. 21.6.2006.
9. When we wanted to see the inquiry report, none was produced before us though time had been given for this purpose. It was later submitted by the learned counsel for the respondents that the inquiry report is a bulky one and it would only be available after due approval from the competent authority. Even assuming that there is inquiry report, it needs to be submitted and in the case that the inquiry holds that the appointment of the applicant is irregular, proceedings under Section 14 of the CCS(CCA) Rules have to be undertaken before the applicant could be removed from service. In this regard, it is to be noted that FR 31-A provides:-
F.R.31-A. Notwithstanding the provisions contained in these rules, the pay of a Government servant whose promotion or appointment to a post is found to be or to have been erroneous, shall be regulated in accordance with any general or special orders issued by the President in this behalf. Government have issued OM dated 14.3.1963 in this regard:-
The order of notification of promotion or appointment of a Government servant should be cancelled as soon as it is brought to the notice of the Appointing Authority that such a promotion or appointment has resulted from a factual error and the Government servant concerned should, immediately on such cancellation, be brought to the position which he would have held but for the incorrect order of promotion or appointment.
In the case, however, of a Government servant who has been erroneously promoted and appointed to a post in a substantive capacity, the procedure prescribed in the Ministry of Home Affairs. Office Memo No. 32/5/54-Ests. (A), dated the 24th November, 1954 (not printed), superseded by O.M. No.12/2/67-Esst. (D), dated the 21st Match, 1968 (extract given below) for de-confirming the Government servant in the post should be followed and only thereafter the Government servant concerned should be brought down to the position which he would have held but for the erroneous promotion/appointment by the issue of orders as mentioned above. Service rendered by the Government servant concerned in the post to which he was wrongly promoted/appointed as result of the error should not be reckoned for the purpose of increments or for any other purpose in the grade/post to which he would not normally be entitled but for the erroneous promotion/appointment.
3. Any consequential promotion or appointments of other Government servants made on the basis of the incorrect promotion or appointment of a particular Government servant will also be regarded as erroneous and such cases also will be regulated on the lines indicated in the preceding paragraph.
4. Except where the Appointing Authority is the President, the question whether promotion/appointment of a particular Government servant to a post was erroneous or not should be decided by an authority next higher than the Appointing Authority in accordance with the established principles governing promotions/appointments. Where the Appointing Authority is the President. The decisions should rest with the President and should be final. The Ministry of Home Affairs should be consulted in respect of promotions/appointments in the Service administratively controlled by the Ministry. In other cases also, the Ministry of Home Affairs may be consulted, if any point is doubtful.
5. Cases of erroneous promotion/appointment in a substantive or officiating capacity should be viewed with serious concern and suitable disciplinary action should be taken against the officers and staff responsible for such erroneous promotion. The orders refixing the pay should be issued expressly under FR31-A, and a copy thereof should be endorsed to the Ministry of Finance (Department of Expenditure).
We have also perused the copy of the memorandum of the charges served upon the applicant on 21.9.201. As submitted by the respondents, there are 10 articles of charges which are definitely grave by nature. These charges are as under:-
ARTICLE-I That the said Shri Pawan Kumar while functioning as Deputy Director.(NG0) on 14.06.2010 was found in unauthorized possession of 17 documents (as illustrated in Annexure-11) unrelated to his official duties. He, thereby, caused serious breach of security.
2. Thus, Shri Pawan Kumar violated Departmental Security Instructions-2005 and Rule 3(1) of the CCS (Conduct) Rules, 1964.
ARTICLE-II That the said Shri Pawan Kumar while functioning as Deputy Director, (NGO) connected his official computer having official/classified data to internet thereby endangering the security of classified information.
2. Thus, Shri Pawan willfully violated NTRO information Security Policy, Departmental Security Instructions-2005, NTRO Security Instructions issued vide NTRO letter No. XXII/S&CI?009/05/Pl-3980 dated 13.10.2008 and Rule 3(1) of the CCs (Conduct) Rules, 1964.
ARTICLE-III That the said Shri Pawan Kumar while functioning as Deputy Director, (NGO) unauthorizedly installed softwares, namely, Download Accelerator Plus and Skype on his official computer HP S.No. INI 71702P4 Skype software could be used to show documents from office to outsiders.
2. Thus, Shri Pawan Kumar, violated NTRO information Security Policy. Departmental Security Instructions-2005, NTRO Security Instructions issued vide NTRO letter No. XXII/S&CI/009/05/PI-3980 dated 13.10.2008 and Rule 3 (1) of the CCS (Conduct) Rules. 1964.
ARTICLE-IV That the said Shri Pawan Kumar while functioning as Deputy Director, (NGO) downloaded and stored pornographic images in his official computer HP S.No.INI 71702P4.
2. Thus, Shri Pawan Kumar violated the Departmental Security Instructions-2005 and NTRO Security Instructions issued vide No.XXII/S&CI/009/05/Pl-3980 dated 13 Oct 2008 and Rule 3(1) of the CCS (Conduct) Rules, 1964.
ARTICLE-V That the said Shri Pawan Kumar while functioning as Deputy Director (NGO) took a photograph of his office and stored the same on his computer HP S.No.INI 71702P4.
2. Bringing photography equipment and doing photography in NTRO premises is prohibited in terms of NTRO Security Instructions issued vide No. XXII/S&CI/009/05-Pl-3980 dated 13.10.2008 and Departmental Security Instructions 2005. Thus, Shri Pawan Kumar violated Rule 3 (1) of the CCS (Conduct) Rules, 1964.
ARTICLE-VI That the said Shri Pawan Kumar while functioning as Deputy Director, NGO on 14.06.2010 was found in possession of two unauthorized, unaccounted pen drives having classified data and pseudonymous complaints.
2. Thus, Shri Pawan Kumar violated the Departmental Security Instructions 2005, NTRO Security Instructions issued vide No.XXII/S&CI/009/05/PI-3980 dated 13 Oct 2008 and Rule 3 (1) of the CCS (Conduct) Rules, 1964.
ARTICLE-VII An analysis of the pen drives (two) recovered from Shri Pawan Kumar, the then Dy. Director (NGO) reveals that the pen drives contained following data pertaining to recruitment:
i. A 400 page document containing bio-data of candidates for the post of Scientist-B. ii A document pertaining to recruitment of DS (SS).
iii A document about recruitment t the post of Deputy Director (Rs. 12,000-16,500/-).
iv Documents about recruitment to the post of Senior Admin Assistant (Rs. 5500-9000/-) and Administrative Officer (Rs, 8,000-13,500/-) v Documents about recruitment of Maj (Retd.) DS Sidhu for the post of External Pilot-UAV (Rs. 10,000-15,200/-) and Shri Vibhav Vikrant for the post of External Pilot-UAV (Rs. 8000-13,500/-).
2. The abovementioned documents are extremely detailed and exhaustive and contain references to file nothings and circulars which were beyond the official task assigned to Shri Pawan Kumar Shri Pawan Kumar willfully and unauthorisedly collected and retained the data to which he was not authorized to have access. Thus, he acted in a manner unbecoming of a Government Servant, violative of rule 3(1) of the CCs (Conduct) Rules, 1964.
ARTICLE-VIII That the said Shri Pawan Kumar while functioning as Deputy Director, (NGO) indulged in writing pseudonymous/ anonymous complaints (two) to PM. CVC, CBI, CIC, Cab.Sectt.,UPSC & NSA.
2. The abovementioned complaints contain information which Shri Pawan Kumar was not officially authorized to hold. Thus, Shri Pawan Kumar willfully and unauthorisedly collected and retained the data and communicated the same unauthorisedly. Thus, he acted in a manner violative of Rule 3(1) and Rule 11 of the CCS(Conduct)Rules, 1964.
ARTICLE IX Shri Pawan Kumar, the then Dy. Director (NGO) made a false statement against Dr. SM Bhaskar in connection with recovery of memorandum issued by NTRO to Shri Rakesh Kumar, Scientist B and Ms. Suruchi Bhateja, Scientist B from him.
2. Thus, Shri Pawan Kumar violated Rule-3(1) of the CCS(Conduct) Rules, 1964.
ARTICLE X That the said Shri Pawan Kumar wrote three letters dated 17.06.2010, 19.06.2010 and 23.07.2010 directly to NSA without following proper channel.
2. Thus, Shri Pawan Kumar violated Rule 3(1) of the CCS(Conduct)Rules, 1964. Admittedly, the departmental proceeding is under progress. It is further to be seen that on the date the applicant gained eligibility to be considered, there were no charge pending against him.
10. We enter into a zone of controversy. The respondents have relied upon the decision in District Collector, Vizianagaram v. M.Tripura Sundari Devi [1990(4) SLR 237]. Here the case was that the State Government had advertised the posts of Grade I and Grade II Teachers with 2nd class degree in MA. However, the respondents who held 3rd Class degree in MA were selected and an order was issued appointing her as postgraduate teacher in Hindi. The respondent in that case approached the authorities with certificates. It was noticed that she has not qualified for the post and was, therefore, not eligible to join services. The Andhra Pradesh Administrative Tribunal directed that she be allowed to join. However, when the matter was reached, the Honble Supreme Court was pleased to direct:-
It must further be realized by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the Appointing Authority and the appointee concerned. The aggrieved are all those who had similar or better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint a person with inferior qualifications in such circumstances unless it is clearly stated that the qualifications, are relaxable. No Court should be a party to the perpetuation of fraudulent practice.
11. The facts of the instant case are slightly different as the applicant had joined and had continued in service for more than six years so as to attend the qualifying period of next promotion. However, the matter has surfaced only when he is due for his next promotion. Having considered the matter carefully, we take the view that though the facts in the two cases are dissimilar still the ratio that an illegal appointment confers no right continues to hold good.
12. One who has obtained an appointment based on misrepresentation of facts does not acquire the rights flowing out of that appointment. However, as per Government circular dated 19.5.1993 where such an employee has become permanent Government servant, an inquiry as provided under CCS(CCA) Rules, 1965 will have to be held and the Government servant can be removed or dismissed from service only following that inquiry. It is to be deduced from the above discussion that the departmental proceeding is already pending and as claimed by the learned counsel for the respondents, the inquiry against the applicant for obtaining appointment by misrepresentation of facts is also under progress though no report was produced before us.
13. In respect to the second issue, rules are very clear. The following ratio was laid down in the case of Union of India & Ors. Vs. K.V. Jankiraman & Ors. [AIR 1991 SC 2010]:-
6. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned Counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy. It was then contended on behalf of the authorities that conclusions nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusions are as follows:.
(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official;
(3) ...
(4) ...
(4) the sealed cover procedure can be resorted only after a charge memo is served on the concerned official or the charge sheet filed before the criminal court and not before.
There is no doubt that there is a seeming contradiction between the two conclusions. But read harmoniously, and that is what the Full Bench has intended, the two conclusions can be reconciled with each other. The conclusion No. 1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the stage when charge-memo/charge-sheet has already been issued to the employee. Thus read, there is no inconsistency in the two conclusions.
We, therefore, repel the challenge of the appellant-authorities to the said finding of the Full Bench of the Tribunal. However, the right to consideration through the process of sealed cover procedure was clearly established in the case of K.V. Jankiraman (supra). In this case, the common questions involved in all these matters relate to what in service jurisprudence has come to be known as "sealed cover procedure". Concisely stated, the questions are:(1) what is the date from which it can be said that disciplinary/criminal proceedings are pending against an employee? (2) What is the course to be adopted when the employee is held guilty in such proceedings if the guilt merits punishment other than that of dismissal? (3) To what benefits an employee who is completely or partially exonerated is entitled to and from which date? The "sealed cover procedure" is adopted when an employee is due for promotion, increment etc. but disciplinary/criminal proceedings are pending against him at the relevant time and hence, the findings of his entitlement to the benefit are kept in a sealed cover to be opened after the proceedings in question axe over. Hence, the relevance and importance of the questions. This was followed by a number of judgments but has continued to hold good. In the case of Bhajan Singh Vs. State of Uttrakhand, Civil Appeal No. 7706/2013 arising out of SLP (C) No. 30361/2012, the Honble Supreme Court has held that once the departmental proceeding is pending, the claim of the employee concerned for promotion shall have to be kept in sealed cover. The Honble Supreme Court in this case has relied upon para 29 of K.V. Janiramans case (supra) that an employee has no right to promotion but only right to be considered.
14. Admittedly, the charges against the applicant are serious. However, the fact remains that the DPC which would either be held in 2010 or immediately the following date on which the applicant became eligible w.e.f. 21.6.2011. Further, admittedly, on this date, even the draft charges had not been served upon the applicant. We have also taken note of the fact that the draft charges against the applicant were served on 21.9.2011. A Full Bench of this Tribunal as cited above had already taken a note of the fact that when the departmental inquiry is supposed to commence and that has been confirmed in the case of Union of India Vs. K.V. Jankiraman. We also take a note of the fact that the inquiry report is not complete and could not be produced. It still has a long way to go as the proceedings under Section 14 of the CCS(CCA)Rules, 1965 will have to be resorted to before the applicant is held guilty of obtaining appointment fraudulently on the basis of the incorrect facts.
15. Now we come to the last issue that what relief can be provided to the applicant. We are fully in sync with the assertion of the learned counsel for the respondents that the respondent-organization being directly involved with the security of the information deserves full consideration of the alleged misconduct of the applicant. We also take note of the fact that the NTRO also happens to be protected under Article 33 of the Constitution. Having said this, we further hold that this does not imply that other laws of the land have been completely given a go-by. Therefore, while upholding the right of the applicant, we cannot completely overlook the interest of the organization and the security of the nation. Therefore, the following directives are given:-
The respondents are directed to convene DPC for promotion to the post of Director wherein the case of the applicant may also be considered as per the ratio laid down in the case of Union of India Vs. K.V. Jankiraman (supra) and that in Bhajan Singh Vs. State of Uttarakhand (supra).
This DPC will be held within a period of six months.
In the meantime, the respondent-organization has liberty to proceed with and conclude both the departmental inquiry pending against the applicant and the proposed inquiry under Rule 14 of the CCS(CCA) Rules, 1965.
16. With this, the OA is disposed of. There shall be no order as to costs.
(Birendera Kumar Sinha) (Syed Rafat Alam) Member (A) Chairman /lg/