Central Administrative Tribunal - Chandigarh
Unknown vs Union Of India on 21 March, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
i)O.A.No.472-HR of 2010 &
ii)O.A.No.1052-HR of 2010
(Reserved on 21.2.2011)
Chandigarh, this the 21st day of March, 2011
CORAM:HONBLE MR. JUSTICE S.D.ANAND, MEMBER(J)
HONBLE MR.KHUSHI RAM, MEMBER(A)
i)O.A.No.472-HR of 2010:
D.N.Taneja, son of Late Sh.Nathla Ram Taneja, aged 59 years, IFS, Addl. Principal Chief Conservator of Forests, Forestry, Panchkula, Haryana.
APPLICANT
BY ADVOCATE: SHRI R.K.SHARMA
VERSUS
1. Union of India, through Secretary to Government of India, Department of Environment, Forests & Wildlife, Paryavaran Bhawan, C.G.O. Complex, Lodhi Road, New Delhi.
2. Union Public Service Commission, Dholpur House, Shahjahan Road, New Delhi, through its Secretary.
3. State of Haryana through Financial Commissioner & Principal Secretary to Government Haryana, Forest Department, Chandigarh.
4. K.L.Minhas, IFS, Managing Director, Haryana Forest Development Corporation Ltd., Sector 4, Panchkula.
RESPONDENTS
BY ADVOCATE: SHRI SANJIV DAHIYA For Respondent No.1
SHRI RAJIV PRASHAD , DAG, Haryana For Respondent No.3
Respondent No.4 In person
ii)O.A.No.1052-HR of 2010:
Kishan Lal Manhas, IFS, PCCF-cum-Managing Director, Haryana Forest Development Corporation Ltd., Sector 4, Panchkula.
BY ADVOCATE: SHRI V.K.SHARMA
VERSUS
1. Union of India, through Secretary to Government of India, Department of Environment, Forests, & Wildlife, Paryavaran Bhawan, C.G.O. Complex, Lodhi Road, New Delhi.
2. State of Haryana through Financial Commissioner & Principal Secretary to Government Haryana, Forest Department, Chandigarh.
RESPONDENTS
BY ADVOCATE: SHRI DEEPAK AGNIHOTRI For Respnodent No.1
SHRI RAJIV PRASHAD, DAG, Haryana For Respondent No.2
SHRI R.K.SHARMA For applicant in MA 936 of 2010
ORDER
HONBLE MR. JUSTICE S.D.ANAND, MEMBER(J):-
The commonness of the point for adjudication in these two O.As persuades us to take these up for a joint disposal.
Factual scenario in O.A.No.472-HR of 2010, titled D.N.Taneja vs. Union of India & others in the first instance:-
2. Applicant - Shri D.N.Taneja (hereinafter referred to as applicant Shri Taneja) is a 1977 Batch officer of the Haryana Cadre of the Indian Forest Service (IFS for short). He was posted as Additional Principal Chief Conservator of Forests (hereinafter referred to as APCCF) with effect from 4.1.2010 and superannuated with effect from 30.9.2010.
3. The Departmental Promotion Committee (hereinafter referred to as the DPC) met on 20.3.2009 for consideration of the claims of members of the Indian Forest Service (who had completed minimum of 25 years of service with reference to the year of allotment and subject to the provisions of Rule 9(7) of the Indian Forest Service (Pay Rules) 1968), for promotion to the post of APCCF. The following officers (seniority-wise), were eligible and within the zone of consideration:-
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Sr. Name of the officer Date of appoint- Source of recruit- Year of
No. S/Sh. Ment in IFS ment Allotment
Cadre
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1. K.L.Manhas, IFS 1.3.1976 Direct 1976
2. Parvez Ahmed, IFS 1.3.1977 Direct 1977
3. D.N.Taneja, IFS 1.3.1977 Direct 1977
4. C.R.Jotriwal, IFS 1.4.1980 Direct 1979
5. S.S.Jattan, IFS 1.4.1980 Direct 1980
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4. The DPC approved the names of two seniormost officers, one Shri K.L.Manhas(Respondent No.4 herein and applicant in O.A.No.1072-HR of 2010) (hereinafter referred to as applicant Shri Manhas ) and Shri Parvez Ahmed, who were found fit for promotion to the post aforementioned. The recommendations made by the DPC came to be implemented only in respect of Mr.Parvez Ahmed with effect from 1.4.2009 and the consideration pertaining to applicant Shri Manhas was retained in a sealed cover (to be opened on conclusion of the disciplinary proceedings). The relevant order dated 26.5.2009 is available on record as Annexure A-4.
5. The State Government (Respondent No.3 herein) imposed a penalty of simple warning upon Respondent No.4, vide order dated 15.7.2009 (Annexure A-1) whereas intention of the Government was to impose penalty of censure upon respondent No.4 but used the word penalty of simple warning instead of penalty of censure. The proposed penalty ought to have been forwarded to the UPSC for final decision as per procedure in All India Service (Discipline and Punishment) Rules. However, the Government of Haryana did not forward the papers to the U.P.S.C. and proceeded to open the sealed cover and give effect to the D.P.C. proceedings. On that basis, applicant Shri Manhas came to be promoted as APCCF retrospectively, with effect from 1.4.2009( i.e. the date of promotion of Sh.Parvez Ahmed). The opening of the sealed cover was violative of the instructions, dated 6.11.2007 (Annexure A-5), issued by the Government of India after the judgment of the Honble Supreme Court dated 27.8.1991 in the case of Union of India vs. K.V.Jankiraman etc. , reported as AIR 1991 SC 2010. Apart from the grant of promotion with retrospective effect, the consequential benefits also came to be granted to the applicant Shri Manhas in terms of order dated 30.7.2009 (Annexure A-2).
6. It was applicant Shri Manhas himself who, vide his letter dated 11.8.2009, informed the State Government that penalty of simple warning is not included as one of the penalties in All India Services (Discipline and Appeal) Rules 1969. It was, then, that it came to the notice of the State Government that there had been an error in the imposition of penalty upon Respondent No.4. It was then only that it was proposed to impose a penalty of censure upon the applicant Shri Manhas and the matter, in the context, was referred to UPSC for decision on penalty and the matter is still pending.
7. Thereafter, another D.P.C. was held on 11.12.2009 for consideration of names for promotion to the post of Principal Chief Conservator of Forests (hereinafter referred to as PCCF). On account of the promotion granted to the applicant Shri Manhas with effect from 1.4.2009, he also came to be promoted to the post of PCCF w.e.f. 4.1.2010.
8. Applicant Shri Taneja applied for invalidation of the above two promotions given to the applicant Shri Manhas on a precise averment that the opening of the sealed cover was violative of the instructions issued by the Government of India in pursuance of the law laid down by the Apex Court in Jankiramans case. The plea, raised in the context, is that if those instructions had been followed, the sealed cover could not have been opened and given effect to.
9. The further ground of challenge is that the imposition of a simple warning as a penalty upon applicant Shri Minhas was not in order inasmuch as the penalty aforementioned is not indicated in the extant Rules to be a statutory penalty.
10. On the above foundational premise, applicant Shri Taneja applied for quashing of the order dated 15.7.2009 (Annexure A-1), vide which Respondent No.3 had imposed a non-statutory penalty of simple warning upon applicant Shri Manhas. Also applied for was an order for invalidation of the orders dated 30.7.2009 (Annexure A-2) and 4.1.2010 (Annexure A-3), whereby applicant Shri Manhas was promoted to the post of Additional PCCF and PCCF respectively. Applicant Shri Taneja also applied for the grant of a direction to Respondent No.3 to impose one of the statutory penalties upon applicant Shri Manhas. As a consequential relief thereof, applicant Shri Taneja further applied for grant of a direction to Respondent No.3 to consider him for promotion as APCCF with effect from 1.4.2009 and PCCF w.e.f. 4.1.2010 as he was the officer next in seniority and he had been found otherwise fit by the Committee.
11. Respondent No.3, in a way, conceded having committed an error in proceeding to impose a penalty of simple warning upon applicant Shri Manhas. (The UPSC vide letter dated 13.5.2010 has also pointed out that the issuance of show cause notice to Sh. Manhas disclosing the penalty to be imposed is against the All India Service (Discipline & Appeal) Rules, 1969 and the instructions issued by the Government of India from time to time. Further the decision of the Disciplinary Authority to impose a penalty of simple warning also does not appear to be correct as the penalty of simple warning is not included as one of the penalties under All India Service (Discipline & Appeal) Rules, 1969. As per Para No.3.2 of the instructions dated 14.9.1992 issued by the Department of Personnel & Training, Government of India, where it is considered that after the conclusion of disciplinary proceedings same blame attaches to the officer concerned which necessitates cognizance of such act, the disciplinary authority should award the penalty of censure at least. The UPSC has further advised after removing these procedural lapses, the complete case be referred to UPSC.)
12. It was further averred that the matter was reconsidered by the State Government in view of Para No.3.2 of the DOPT letter No.22011/4/91-Estt.(A), dated 14.9.1992 and a show cause notice was issued to the Respondent No.4 vide this department order dated 28.7.2010 that Disciplinary Authority reconsidered the entire matter and observed that there were procedural lapses in the conclusion of the disciplinary proceedings against him.
13. The further averment, in continuity, is that The Disciplinary Authority also decided to withdraw proceedings subsequent to the receipt of the enquiry report and to initiate fresh proceedings from the stage of receipt of the inquiry report. The show cause notice issued to Respondent No.4 vide Memo dated 9.3.2009 and simple warning to (be) placed in the personal file issued vide order dated 15.7.2009 were withdrawn. Further Respondent No.4 was given an opportunity to submit representation, if any, against the findings of the Inquiring Authority within 15 days from the receipt of this Memo before taking a view in the matter. Respondent No.4 submitted his reply to the show cause notice dated 28.7.2010 on 03.08.2010, which is under active consideration and will be forwarded to the Secretary, Govt. of India, Ministry of Environment and Forests, New Delhi and Union Public Service Commission. Further action in the matter will be taken as per approval of UPSC and the relevant rules.
14. Applicant Shri Manhas also filed a counter resisting the averments made by applicant Shri Taneja. He averred the correctness of the two promotions granted to him. The chargesheet against him was averred to be malafide. The long pendency of that chargesheet, it was averred, was subject of adjudication in O.A.No.43-HR of 2008 wherein applicant Shri Manhas had applied for the quashing of the Charge Memo dated 13.5.2005. In that case, a learned Coordinate Bench of this Tribunal directed the Competent Authority to bring the disciplinary proceedings to a logical conclusion within two months from the date of receipt of a copy of that order. The further order announced was that in case the disciplinary proceedings are not concluded within the aforementioned time period, those (proceedings) shall stand quashed. The only rider imposed by the Tribunal was that the applicant shall otherwise cooperate in the conclusion of the disciplinary proceedings.
15. Applicant Shri Manhas further averred that the O.A. filed by applicant Shri Taneja is time-barred inasmuch as it calls into question the promotion order dated 1.4.2009 in favour of the former. It was also averred that the relief applied for by applicant Shri Taneja is barred by promissory estoppel, which is applicable in view of the orders of the Tribunal dated 7.11.2008 (Annexure R4/II), 19.2.2009 (Annexure R4/III) and 31.7.2009 (Annexure R4/VI) and consequent orders of the respondent State , issued on 15.7.2009 (Annexure R4/IV) and 30.7.2009 (Annexure R4/V).
Averments made in the course of O.A. No.1052-HR of 2010, filed by applicant Shri Manhas:-
16. Applicant Shri Manhas is a member of the Scheduled Castes and is a 1996 recruit to the I.F.S. On the announcement of fitness and suitability by the DPC for promotion, he was promoted to the post of PCCF, vide order dated 4.1.2010 (Annexure A-4). He averred that he is being discriminated, in the matter of postings, with malafide reasons as his lawful discharge of duties had caused annoyance (to the people) at the higher levels. He was removed from the post of PCCF by Respondent No.2 (the State of Haryana) on 16.12.2004 and remained without a posting for a number of months till the creation of an ex-cadre post of OSD(Rules) which came about in terms of order dated 8.8.2005. He functioned in that post up to 7.8.2007. After his promotion to the post of PCCF on 4.1.2010, he undertook the job of streamlining the functioning of the department. However, certain corrupt, disgruntled and castiest minded officers and politicians united together to get the applicant removed from the top post and on 4.2.2010, another ex-cadre post of PCCF-cum-MD, HFDC was created for posting the applicant against it. (Annexure A-7). The validity of that placement was challenged, without success though. The O.A., filed to obtain the invalidation of that placement, came to be rejected on 5.5.2010 with a finding that applicant Manhas had not challenged the equivalence of the ex-cadre post of PCCF, Haryana. Thereafter, applicant Shri Manhas came to be posted against an ex-cadre post of OSD (Rules). The applicant herein applied for invalidation of that order.
17. The application was contested by Respondent No.2 by averring the correctness of the equivalence declared qua inter-se placement of OSD(Rules) and PCCF. It was averred that the creation of ex-cadre post aforementioned is within the permissible limit which (limit) had been secured by the down-grading of the equivalence earlier accorded to the post of Managing Director, Haryana Forest Development Corporation Ltd. (hereinafter referred to as MD, HFDC).
18. We have heard learned counsel for the parties and have carefully gone through the pleadings as well as the documentation available on record of both the cases.
19. The learned counsel, appearing on behalf of applicant Shri Taneja, vehemently canvassed that the opening of the sealed cover itself and the grant of retrospective promotion was in violation of the DOP&T instructions, which came to be issued after the judgment rendered by the Apex Court in Union of India vs. K.V.Jankiraman. The observations made by the Apex Court therein are extracted hereunder:-
in the cases wherein an officer of the All India Services is facing disciplinary/ criminal proceedings and on the conclusion of these proceedings, if he is awarded a penalty or convicted, as the case may be, he cannot be promoted retrospectively. His case for promotion may be considered by the next Secreting Committee in the normal course of prospective promotion, having regard to the penalty imposed on him. (underlining for emphasis)
20. The relevant part of the instructions, issued by the DOP&T with regard to the imposition of a penalty in the envisioned contingency, is also extracted hereunder:-
3.2 It is also clarified that in case where disciplinary proceedings have been held under the relevant disciplinary rules, warning should not be issued as a result of such proceedings. If it is found, as a result of proceedings, that some blame attaches to the Government Servant, at least the penalty of Censure should be imposed.
21. The inescapable conclusion, which can be culled out from a conjunctive perusal of the ratio of the judgment in K.V.Jankiramans case and the DOP&T instructions extracted in the preceding para of this order, is that a sealed cover cannot be validly opened without the concurrence in the context by the U.P.S.C. and further that if the relevant disciplinary proceedings indict the employee, mere warning should not be issued therein and atleast the penalty of censure ought to be imposed if it is found, as a result of the proceedings, that some blame attaches to the government servant.
22. It is also apparent from a perusal of the counter filed by the Government of Haryana in O.A. No. 472-HR of 2010 that the proceedings with regard to the imposition of penalty of simple warning have since been withdrawn and proceedings initiated afresh from the stage of receipt of the enquiry report and that a show cause notice, in the context, has already been served upon applicant Shri Manhas whose reply is under active consideration and will be forwarded to the Secretary to Government of India, Ministry of Environment & Forest and the U.P.S.C. The further averment, in the context, is that action in the matter will be taken as per approval of UPSC and the relevant rules.
23. The averment made by applicant Shri Taneja that applicant Shri Manhas himself informed, vide his letter dated 11.8.2009, the Government that penalty of simple warning is not included as one of the penalties in All India Services (Discipline and Appeal) Rules 1969 has not been specifically denied in the course of the counter filed by the applicant Shri Manhas.
24. It is, otherwise, apparent from a conjunctive perusal of the pleadings raised by the parties that the Inquiring Authority had indicted applicant Shri Manhas and that it is not a case of exoneration at all. In view, thus, of the fact that the disciplinary proceedings against applicant Manhas are yet to conclude, it is apparent that he could not have been granted promotion as APCCF with effect from 1.4.2009 and also further promotion as PCCF with effect from 4.1.2010. In that view of things, as and when the disciplinary proceedings conclude, the case of the applicant Shri Manhas may be considered by the next Screening Committee for the grant of prospective promotion. That, too, would come about only if the said applicant is exonerated. In any case, that would be a matter of consideration by the Competent Authority which (consideration) could come about only on the conclusion of the disciplinary proceedings.
25. The learned counsel appearing on behalf of applicant Shri Manhas, then, argued that the grievance raised by applicant Shri Taneja in the course of the O.A. is barred by the principle of promissory estoppel in view of the orders granted by a learned Coordinate Bench of this Tribunal on 7.11.2008, 19.2.2009 and 31.7.2009.
26. The plea raised is completely denuded of merit. All that the learned Coordinate Bench of this Tribunal had held, vide order dated 7.11.2008, was to announce a time-bound conclusion of the disciplinary proceedings. Further order in the context was that in case it is not so done, the disciplinary proceedings shall be deemed to have been quashed concluded. The principle of promissory estoppel just does not come in on the basis of that order.
27. Insofar as the order dated 19.2.2009 is concerned, it had only granted the plea for extension of time for implementation of the relevant order (by two months). The same applies to the order dated 31.7.2009 vide which the penalty of simple warning was imposed upon applicant Shri Manhas. How exactly, then, do these documentations enable applicant Shri Manhas to raise a plea of promissory estoppel, defies logic.
28. In the light of aforementioned discussion, we are of the considered view that the promotions granted to applicant Shri Manhas (to the post of APCCF on the basis of DPC proceedings held on 1.4.2009 and PCCF on the basis of DPC proceedings held on 4.1.2010) were invalid. It is apparent, from the pleas raised by the parties, that applicant Shri Taneja was the next officer in the line of promotion and there was nothing adverse in his service record. In view of the proved position that applicant Manhas could be (if at all) considered (only) for a prospective promotion, there is no reason why applicant Shri Taneja be not considered for promotion to the posts the post filled up by applicant Manhas and we so order accordingly.
29. This is insofar as O.A. No.472-HR of 2010, titled D.N.Taneja vs. UOI is concerned.
30. That would bring to the fore a controversy which calls for adjudication in OA No.1052-HR of 2010, filed by applicant Shri Manhas.
31. The learned counsel, appearing on behalf of applicant, Shri Manhas argued that the placement of the applicant Shri Manhas on the post of OSD(Rules) is the outcome of malafides on the part of interested quarters who were annoyed with him on account of his sincere performance of duties and by his insistence to abide by the rules and regulations and due to his efforts to eradicate corruption.
32. It is to state the obvious that allegations based upon malafides have to be compulsively made against an individual and not against the holder of an office and the averred contemnor has to be compulsively arrayed in his personal capacity and not in the official capacity. We find from the O.A. that the individuals, qua whom the allegations of malafides have been alleged, have not been impleaded as party respondents. We cannot, thus, hold that the allegations of malafides are competent.
33. It was, then, argued on behalf of applicant Shri Manhas that the creation of an ex-cadre post, in excess of the number specified for the concerned State under Item No.3 of the Schedule to the Indian Forest Service (Fixation of Cadre Strength) Regulations 1966, is invalid.
34. The averment was denied on behalf of the State of Haryana on whose behalf there is a precise averment to the effect that creation the post of OSD(Rules) is within the permissible limit and that its equivalence to the post of PCCF had been correctly announced. In that context it was pointed out that the equivalence granted to the post of MD, HFDC with the post of PCCF, had been withdrawn and that very equivalence stands granted to the post of OSD(Rules). It is also averred in the course of the counter that after the creation of the post of OSD (Rules) a Forest Rules Cell has been established.
35. The position that, thus, emerges from the above discussion is as under:-
i)The sealed cover procedure adopted at the time the DPC was held on 11.12.2009 on account of the pendency of a departmental enquiry against applicant Shri Manhas, had to necessarily stay under the wraps till the conclusion of the departmental proceedings. The deferment of the opening of the sealed cover would have been in accord with the relevant DOP&T instructions. The opening of the sealed cover by the imposition of a penalty (of warning), is foreign to the statutory penalties provided under the relevant rules and was, thus, not in order.
ii)The matter has to be compulsively referred to the UPSC before a penalty can be imposed upon applicant Shri Manhas. It cannot, thus, be said that the disciplinary proceedings against him have concluded to enable the opening of the sealed cover.
iii)The grant of retrospective promotion would be feasible only if the disciplinary proceedings end in out-right exoneration.
iv)If a penalty comes to be imposed, following indictment in a departmental enquiry, the matter pertaining to promotion of applicant Shri Manhas can be taken up for consideration only at the next Screening Committee meeting and the grant of promotion to him can be considered only with prospective effect having regard to the penalty imposed upon him. That view is in accord with the law laid down by the Apex Court in Jankiramans case (supra)
36. Applicant Shri Manhas did not invite our attention to any factual inaccuracy in the averment aforementioned. We cannot, thus, find any fault with the competence of the Government of Haryana in creating the post of OSD(Rules) and the declaration of that post to be equivalent to that of the PCCF. The creation of that post, and also the declaration of its equivalence to the PCCF, is affirmed and no interference in this regard is required by this Tribunal. That disposes of O.A.No.1052-HR of 2010 titled K.L.Manhas vs. Union f India.
37. In the light of the discussion in the foregoing paras, O.A. No.472-HR of 2010, titled D.N.Taneja vs. Union of India, shall stand allowed. The impugned orders, Annexure A-1dated 15.7.2009, Annexure A-2 dated 30.7.2009 and Annexure A-3 dated 30.7.2009 shall stand invalidated. Thereby, applicant Shri Taneja is held entitled to be considered for promotion to the post of APCCF from 1.4.2009. He is further held entitled to be considered for promotion to the post of PCCF w.e.f. 4.1.2010. In view of our findings in the foregoing paras of this judgment and in view of the fact of his superannuation w.e.f. 30.9.2010 applicant Shri Taneja has to be considered for substitution in place of applicant Shri Manhas in toto. If promoted, he shall be granted notional placement in the posts aforementioned and be given the arrears that shall become due to him on account of such placement on re-fixation of pay and pension etc. within a period of three months from the date of this order.
38. The OA filed by Shri K.L.Manhas shall stand rejected.
39. The Registry is directed to place a copy of this order in the relevant files.
40. The parties shall bear their own costs of the cause in the facts and circumstances of these cases.
(JUSTICE S.D.ANAND) MEMBER(J) (KHUSHIRAM) MEMBER(A) Dated: March 21 , 2011 `bss 1
(i)OA No.472-HR of 2010 &
(ii)OA No.1052-HR of 2010