Calcutta High Court (Appellete Side)
( Dr. Deepak Kumar Ghosh vs Union Of India & Ors.) on 26 April, 2011
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
1
26.4.2011
sl.no.12 WPCT 56 of 2010
( Dr. Deepak Kumar Ghosh -vs- Union of India & Ors.)
Mr. L. K. Gupta
Mr. Prabir Dasgupta
Mr. Dipanjan Sinha Roy
Mr. Supriyo Chattopadhyay...for the petitioner
Mr. Samiran Giri...for the State respondents
Mr. Md. Mokaram Hossain ...for the Union of India The petitioner was working as Conservator of Forests in the office of the Principal Chief Conservator of Forests, Aranya Bhawan, Kolkata under the State. He approached the Tribunal against denial of promotion. The Tribunal vide judgment and order dated February 10, 2010 observed that since the applicant's case had already been examined by the Departmental Promotional Committee (DPC) on January 21, 2004 and sealed cover procedure resorted to, procedural formalities were complied with and the Tribunal not being an appellate body, could not go into the merits or de-merits of the same. The Tribunal dismissed the application finding it lacking merit. Hence, this application before us.
The facts reveal that the petitioner was denied promotion principally on two counts:
I) His ACR could not permit him to be considered for promotion.
II) He was proceeded with departmentally, when the DPC considered him for promotion.2
Fact remains, his juniors were being promoted one after the other ignoring his case. On analysis of fact, we also come to know that the petitioner enjoyed study leave duly sanctioned by the authority for the period from June 1, 2002 to May 30, 2004. He joined on May 7, 2005 after completion of his study. During this period he enjoyed the sanctioned study leave. He was to submit project report to the authority for their perusal. Pages 84-88 of the paper book would show that his superior being the Principal Chief Conservator of Forests, West Bengal as well as Botanical Survey of India highly acclaimed the project report submitted by the petitioner. The Principal Chief Conservator of Forests in his letter to the Principal Secretary observed that since he was on study leave, his ACR for the said period could not be effectively recorded, however, his project report, which according to the Principal Chief Conservator, was "extraordinary and outstanding nature", should be taken note of. The authority, however, mechanically acted and treated the said period as "no performance". This resulted the petitioner's deficiency from being considered for promotion on the basis of ACR.
Mr. Gupta, learned Counsel appearing for the petitioner has drawn our attention to pages 8 and14 of the Guidelines for promotion to various grade of Indian Forest Service issued by the Government of India, wherein we find that in case of a disciplinary proceeding, the authority must adopt the sealed cover procedure. In case of study leave, the authority should follow the procedure laid down for consideration of the employees working on deputation 3 in any other organization. Clause 5 of the said Guidelines being relevant herein is quoted below:
"The names of officers who are on deputation for a period exceeding one year shall also be included in the list submitted in the Committee for consideration for promotion/confirmation in case they fulfill the prescribed eligibility conditions. In cases where a certain number of years of service in the lower grade is prescribed as a condition for becoming eligible for consideration for promotion to the higher grade and/or for confirmation, the period of service rendered by an officer on deputation should be treated as comparable service in his cadre for the purposes of promotion as well as confirmation. This is subject to the condition that the deputation is with the approval of the competent authority and it is certified that but for deputation, the officer would have continued to be in the relevant grade in his cadre. The same would apply in cases of officers who are on leave/study leave duly sanctioned by the competent authority or training under the various training schemes which are treated as duty for all purposes."
From the extract as above, we find that during the period when the petitioner was on study leave, the period enjoying study leave should also be taken into consideration in case of promotion.
On the issue of disciplinary proceeding, we find that the petitioner was subsequently exonerated from the charges. In this regard, we may refer to letter dated October 7, 2005 appearing at page 59 of the paper book, where the Deputy Secretary to the State of West Bengal informed the Principal Chief Conservator of Forests that the Government had accepted Vigilance Commission recommendation for imposing 'no punishment' upon the petitioner. Once the petitioner was exonerated from the charges, the authority could not have considered him as deficient for promotion in view of pendency of the disciplinary proceeding. We must admit that the DPC did not specifically debar him from promotion on the ground of pendency of the disciplinary proceeding. However, from the 4 chronological events, so recorded by the Tribunal on appraisal of the records, our observation would find justification.
There is one more salient feature, which possibly the Tribunal ignored. The matter earlier travelled to the Tribunal. The Tribunal vide order dated March 29, 2005 observed that since the departmental proceeding was pending, the Tribunal was not inclined to go into the question of validity for such departmental proceeding and gave a free-hand to the authority to take their own view. While observing so, the Tribunal categorically made it clear, "case of promotion of the applicant shall be reviewed after conclusion of the departmental proceeding and if he is exonerated, he shall be given promotion from the same date when his junior got such promotion as per rules."
It would have been better, if the Tribunal directed to consider him positively, instead of giving such direct mandate. We, however, find that the State did not file any application before us challenging the said order and the said order reached finality. Rightly or wrongly the Tribunal gave a clear mandate that in case of exoneration, he shall be given promotion. Be that as it may, such clear mandate could not have been ignored by the Tribunal, when the Tribunal was approached for the second time. By the order impugned the Tribunal observed that once the applicant had been found unfit by the DPC, the applicant could not succeed. We are unable to agree with such view of the Tribunal. The promotion is within the exclusive domain of the executive. The DPC is the sole Judge to decide who would be given promotion. Such decision is not amenable to judicial review. However, the court is duty bound, 5 as and when approached, to examine the decision making process to find out, whether there was any violation of principle of natural justice.
The facts discussed above, would reveal that the petitioner's case was not properly considered by the DPC. They could not have ignored the period of service little above three years, while he was on study leave and his project report was acclaimed by not only his superior, but also an expert body being Botanical Survey of India.
We wish to give one more opportunity to the DPC to consider his case positively in the light of the observations made by us hereinabove and place him accordingly in the seniority list, so that he is not placed after his juniors, who by this time already got promotion.
If necessary, the DPC may especially be constituted to consider the case of the petitioner.
With these observations, hoping that the DPC would consider the case of the petitioner positively, we dispose of the tribunal application being WPCT 56 of 2010 without any order as to costs.
Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Ashim Kumar Banerjee,J.) (Dr. Mrinal Kanti Chaudhuri,J.) 6