Orissa High Court
Union Of India (Uoi) Represented By The ... vs Sangram Keshari Nayak And Anr. on 31 January, 2005
Equivalent citations: 99(2005)CLT373, 2005(2)ESC1376, 2005 LAB. I. C. 1405, (2005) 29 ALLINDCAS 593 (ORI), (2005) 2 ESC 1376, (2005) 99 CUT LT 373
Author: B.P. Das
Bench: B.P. Das, N. Prusty
JUDGMENT B.P. Das, J.
1. The Union of India represented by the General Manager, South Eastern Railways, and its officers have filed this Writ Petition under Articles 226 and 227 of the Constitution of India with a prayer to quash the Order dated 19.8.2003 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack, (hereinafter called'the Tribunal 1), vide Annexure-3, allowing Transfer Application No. 1/2002 filed by Opp. Party No. 1-Sangram Keshari Nayak (hereinafter described as 'the applicant').
2. The applicant, who belongs to the Indian Railways Traffic Service (IRTS), filed an application under Section 10 of the Administrative Tribunals Act, 1985 before the Central Administrative Tribunal, Calcutta Bench, which was registered as O.A. No. 1306/1999. Subsequently the said O.A. was transferred to the Cuttack Bench of the Tribunal and was registered as Transfer Application No. 1/2002. The applicant while serving as the Deputy Chief Operations Manager (Coaching) under the South Eastern Railways at Calcutta, filed the aforesaid Original Application assailing the decision of the Railway Authorities in putting the recommendations of the Departmental Promotion Committee ('D.P.C.') for his promotion to the post of Senior Administrative Grade ('S.A.G.') in a sealed cover although no charge-sheet/charge memo, had been issued to him at that point of time, and praying for a direction to the Railway Authorities to give him promotion to the S.A.G. keeping in view the recommendations made by the D.P.C. in its meeting held on 14.1.1999 and to effect his promotion from the date, his juniors were promoted to the post of S.A.G. Before the Tribunal the Railway Authorities contested the case and filed their Counter Reply wherein they relied upon the Guidelines/Instructions issued by the Ministry of Railways (Railway Board) in its letter dated 21.1.1993. The Counter Reply along with its enclosures including the aforesaid letter dated 21.1.1993 of the Railway Ministry (which was enclosed and marked as Annexure-R/2 to the counter reply filed before the Tribunal) are annexed to this Writ Petition as Annexure-2.
3. The Tribunal after hearing both the parties by its Order dated 19.8.2003 (Annexure-3) has allowed T.A. No. 1/2002 holding that "the decision taken by the competent authority in March, 1999 to issue a charge-memo, to the applicant for a major penalty proceedings and to keep the recommendations of the DPC in a 'deemed sealed cover' was not only violative of law in this regard, but was also in contravention of the instructions issued by the Ministry of Railways, as referred to earlier under Annexure-R/2. In the said executive order issued by the Ministry of Railways, it has been categorically laid down that name of an official can be put in a deemed sealed cover only if 'charge-sheet' has been issued and 'disciplinary proceedings' are pending. The applicant was served with charge-sheet only on 30.11.1999, much before which date, in implementation of the recommendations of the DPC (wherein the applicant was included) the respondents had already promoted junior to the applicant........" On the aforesaid findings, the Tribunal held that the action of the Railway Authorities in denying promotion to the applicant was entirely wrong being not in consonance with either law or instructions in force. The Tribunal accordingly directed the Railway Authorities to open the sealed cover and act in accordance with the recommendations of the DPC in so far as the case of the applicant is concerned. The Tribunal further directed that if in the opinion of the DPC the applicant was found fit for promotion to S.A.G., he should be accorded promotion from the date his immediate junior G.P.R. Srivastava was so promoted, with consequential service benefits. The aforesaid exercise was directed to be completed within ninety days of the receipt of the order, Annexure-3.
4. After disposal of the aforesaid case, the applicant filed a contempt petition before the Tribunal, which was registered as Contempt Petition No. 100/2003, for non-implementation of the Order passed by the Tribunal. Thereafter the petitioners filed the present Writ Petition in which this Court by its Order dated 19.1.2004 directed stay of the impugned Order passed by the Tribunal in Annexure-3 for a period of ten weeks and the said Order of stay has been extended from time to time. Shri B. Pal, Learned Senior Counsel appearing for the petitioners, i.e. the Railway Authorities, submitted that there was no irregularity committed by the Railway Authorities in keeping the decision of the, DPC in deemed sealed cover in terms of the Guidelines/Instructions contained in the letter of the Railway Ministry (Railway Board) dated 21.1.1993. Learned Counsel in support of his submission relied upon a decision of the Apex Court reported in Union of India v. R.S. Sharma, AIR 2000 SC 2337, and submitted that the candidates against whom investigation of corruption etc. was in progress would be liable to be covered under "sealed cover procedure", the candidate against whom investigation was pending for financial misdemeanors when DPC considered his case for promotion, was liable to be covered by the sealed cover procedure.
The aforesaid judgment is based upon the circular which was issued by the Union of India and was applicable to the respondent, who was a Divisional Engineer of the Telecom Department. In the present case the circular letter was issued by the Ministry of Railways (Railway Board) and was different from that of the circular referred to in R. S. Sharma's case (supra). The ratio decided in R. S. Sharma's case is not applicable to the facts of the present case.
Apart from referring to some other judgments of the Apex Court, the Learned Counsel for the petitioners relied upon an unreported judgment of the Bombay High Court rendered on 23.11.2000 in Writ Petition No. 3971 of 2000 (R.P. Mittal v. Union of India), photo-copy of which was produced before us. The Bombay High Court in the aforesaid case upheld similar action taken by the Railway Authorities.
6. Let us first see the relevant portions of the Guidelines/Instructions issued by the Railway Ministry in its letter dated 21.1.1993. Paragraph 6 of the said Guidelines/Instructions reads as follows :
"6. A Government Servant, who is recommended for promotion by the Departmental Promotion Committee but in whose case any of the circumstances mentioned in Para 2, above arise after the recommendations of the DPC are received but before he is actually promoted, will be considered as if his case had been placed in a Sealed Cover by the Departmental Promotion Committee. He shall not be promoted until the conclusion of disciplinary case/criminal proceedings and the provisions contained in this letter will be applicable in his case also."
From the aforesaid Guidelines/Instructions, it appears that the Government Servant in whose case any of the circumstances mentioned in Paragraph 2 of the letter dated 21.1.1993 arises after the recommendation of the DPC is received but before he is actually promoted, will be considered as if his case has been placed in a sealed cover, Relying upon this, Learned Counsel for the petitioners submitted that before promotion of the applicant to the S.A.G. was processed, decision had already been taken by the competent authority to issue him the charge-sheet for major penalty.
In order to resolve the dispute, a conjoint reading of Paragraphs 2 and 6 of the Guidelines/Instructions contained in the letter dated 21.1.1993 is necessary. Paragraph 2 of the Guidelines/Instructions stipulated as follows :
"2. At the time of consideration of the cases of Government Servants for empanelment, details of Government Servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee :
(i) Government Servants under suspension;
(ii) Government Servants in respect of whom a charge-sheet has been issued and the disciplinary proceedings are pending;
(iii) Government Servants in respect of whom prosecution for a Criminal Charge is pending.
2.1. The Departmental Promotion Committee shall assess the suitability of the Government Servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the D.P.C., including 'Unfit for Promotion' and the grading awarded by it will be kept in a sealed cover. The cover will be superscribed 'Findings regarding suitability for promotion to the grade/post of..........in respect of Shri..........(Name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri.............' The proceedings of the D.P.C. need only contain the note. 'The findings are contained in the attached sealed cover'. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the D. P. C. in respect of the suitability of a Government Servant for his promotion are kept in a sealed cover.
2.2. The same procedure outlined in Para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government Servant concerned is concluded."
7. On going through the conditions as enumerated in Paragraph 2 of the letter dated 21.1.1993 containing the Guidelines/Instructions, we do not find anything either from the Writ Petition or the documents produced by the Railway Authorities that the applicant was ever under suspension and a charge-sheet was issued against him. Neither any departmental proceeding was pending nor was there anything to indicate that any prosecution for criminal charges was pending against the applicant. Instead of delving into further intricacies of law on the subject, in our considered view, the argument of the Learned Counsel for the petitioners fails on this score as the case of the applicant is not covered by Paragraph 2 of the Guidelines/Instructions warranting the consequence of Paragraph 6. In other words, when any one of the circumstances indicated in Paragraph 2 is not fulfilled, recourse to Paragraph 6 is totally unwarranted. Looking into the judgment passed by the Bombay High Court referred to above, we are constrained to say that the facts of the said case are totally different from that of the case in hand. There is no infirmity in the impugned Order parsed by the Tribunal (Annexure-3) requiring interference of this Court.
8. For the reasons indicated above, the Writ Petition is dismissed having no merit. The interim order passed in this case stands vacated and the petitioners are directed to comply with the impugned order of the Tribunal forthwith and preferably within a period of six weeks from today.
There shall be no order as to cost.
N. Prusty, J.
9. I agree.