B. Chandragupta v. The Chairman, P. & T. Board, New Delhi & Another.

Narayana Pai, J.:— The petitioner is a Government Servant in the Post & Telegraphs Department of the Central Government. He is a permanent official of the said Department. He was deputed to serve in the office of the Provident Fund Commissioner and was on such deputation till May 1966. Thereafter, he was repatriated to his parent department, the Posts and Telegraphs Department. In July 1967, when occasion arose, according to the petitioner, for considering his case for promotion to the next higher cadre, his case was overlooked. It would appear that the reason for passing over his claim was that the Government was contemplating institution of disciplinary proceedings against him in respect of certain matters connected with his service in the office of the Provident Fund Commissioner. Actually, he was served with a set of charges and explanatory allegations only in Sep. 1968. Thereafter, the enquiry was posted to the 24th of October 1968. When he appeared before the Enquiry Officer, the Presenting Officer, i.e, the Officer expected to present and support the charges at the enquiry, reported that he was not in possession of any documents on the basis of which the charges had been framed and that therefore he was not in a position to go on with the enquiry. The enquiry, therefore, was postponed and has not yet been recommenced.

2. The petitioner, therefore, complains that in existing circumstances, there is no valid case for keeping in abeyance the question of his promotion any longer and prays for the issue of appropriate writs or directions either to consider the case of the petitioner for promotion or to expeditiously complete the disciplinary enquiry pending against him within a time to be fixed by this Court. The counter affidavit on behalf of the respondent, the Chairman, Posts and Telegraphs Board, New Delhi, puts forward the case that the question of promotion has been kept in abeyance in bona fide exercise of the power existing in that regard; that at the point of time appropriate for consideration of the petitioner's claim for promotion a Committee dealing with those questions has already expressed its opinion, but, that in view of the pending departmental enquiry the same has been kept in a sealed cover; that the inability to proceed with the enquiry is due to causes beyond the control of the respondents, the relevant papers having been filed in certain Courts of law in the State of Andhra Pradesh in connection with certain criminal proceedings against other officials, that as soon as the papers are available, the department will proceed expeditiously with the enquiry at the end of which effect will be given to the opinion placed in a sealed cover as stated above; that the petitioner need have no grievance whatever because one of the promotional posts has been kept vacant so as to be made available to him in the event of the enquiry resulting in his favour and that whatever injustice that might have been caused to him may be remedied by appropriate orders at the time of promotion, as for example, by giving retrospective effect, if necessary.

3. Although, as summarised above, the case appears to be more appropriate for an administrative decision by the Government and less amenable to any effective judicial decision, one difficulty in the way of making any effective judicial order is removed in this case by reason of the fact that neither side has charged the other with any mala fides or bias. The petitioner does not say that either the Union Government or any Officer of the Posts and Telegraphs Department is actuated by mala fides or entertains any positive bias against the petitioner. Likewise, the respondents, the Chairman of the P & T Board, and the Member on the Administrative side do not appear to have made up their mind against the petitioner in the matter of promotion. In fact, they have gone to the extent of actually making a reservation in his favour by keeping one of the promotional posts vacant and available for being filled up by him.

4. Now the power to keep in abeyance the grant of promotion to an official due for promotion is not based upon any particular statutory provision or the provisions of any statutory rules. It is, therefore, merely and essentially an aspect of the exercise of the executive power of the State. Like all power, whether executive or otherwise, the said power necessarily carries with it the implicit duty that the same has to be exercised fairly, reasonably and in public interest. When public interest has to be examined in relation to or in connection with the control of public services, one matter which the Executive Government cannot ignore is the necessity of maintaining a certain amount or certain standard of contentment among the public servants and the undesirability of permitting frustrations and dis-loyalties to grow.

5. Another well established proposition in the matter of enforceability of service conditions is that promotion can never be claimed as a matter of right. At the same time, the constitutional principle of equality enshrined in Arts. 14 and 16 require that where occasion arises for considering the competing claims for promotion of more Government Servants than one, each one of them is entitled to his case being considered on merits. The power to keep such consideration in abeyance or to postpone actual grant of promotion which might otherwise be available to a person is a power which curtails the rights and the constitutional protection thereof appertaining to the position of a public servant.

6. Hence it appears to us that the exercise of the said power must pass the test of reasonableness. No principles of general application are capable of precise statement. But, there is no doubt whatever that each case will have to be examined on merits and a conclusion reached on the question whether in the given circumstances the power of keeping in abeyance either the consideration of a public servant's claim for promotion or the grant of promotion held to be due to him has or has not been exercised reasonably.

7. Although, at the initial stage, where such a decision is taken, it may be difficult to call that decision in question in the absence of clear proof of mala fides on the part of the officer exercising the power, passage of time and the subsequent turn of events will have an effect on the circumstances of the case which would furnish the measure of the reasonableness or unreasonableness of continuing in force the order of abeyance.

8. For the purpose of applying these principles, it is necessary now to summarise the circumstances of this case. Some of them we have already narrated. Firstly there is no question of mala fides on the part of either side. Secondly the Department themselves have taken the preliminary steps necessary for considering the petitioner's case for promotion, a certain Committee charged with making recommendations in that regard is said to have already made those recommendations which are kept in a sealed cover. Although the promotion was due or the petitioner's case for promotion was due for consideration in July 1967, the position at that time was not the actual pendency of any deparmental enquiry, but, merely the possibility of an enquiry being instituted. It is stated that such an enquiry was in contemplation. Hence, except keeping the question of promotion in abeyance, nothing more was done. When the charges were actually framed and served on the petitioner in September 1968, he was not placed under suspension, but continued in service. It would mean therefore that even the pendency of an enquiry did not, in the opinion of his official superiors, make it necessary to regard his continuance in the service to be prejudicial either to the conduct of the enquiry or to the interests of public service. The charges framed, a copy whereof has been produced with the petition, show that they are relatable more to irregularities or omission to adhere to procedure resulting in slackness of supervision than to anything involving or indicating moral turpitude or positive criminal intent on the part of the petitioner. It is stated on behalf of the petitioner and not denied on behalf of the respondents that some of the other officials in the office of the Provident Fund Commissioner had been actually prosecuted in Criminal Courts and while taking the decision to prosecute them, it was not considered necessary or was actually considered unnecessary to institute similar proceedings in Criminal Courts against the petitioner. Finally, even in the counter-affidavit filed in this petition it is stated that one of the promotional posts has been specially kept vacant, so that in the event of the petitioner ultimately getting promoted, the benefits thereof may not be denied to him by the absence of a promotional post. Nearly two years have elapsed since the time appropriate for taking up for consideration the petitioner's case for promotion. The prospects of early commencement of the enquiry are of such a nature that nobody is in a position to state any reasonable estimate, with any approach to accuracy, as to when the same may be commenced. The reason obviously is that the relevant papers are held up in Courts in connection with the criminal prosecutions and subsequent proceedings arising out of the same and it is not possible to make any estimate of the length of pendency.

9. In all these circumstances, it appears to us that it will be unreasonable to continue to keep in abeyance the consideration of the petitioner's case for promotion. That case can now be considered without prejudice to the conduct of the disciplinary enquiry or to the interest of public service itself. The readjustment of position consequent upon the result of the enquiry can also be made without prejudice to any individual's interests or even public interest.

10. We therefore make the following directions.

11. The respondents will take up for consideration within one month from to-day the petitioner's case for promotion to the next higher post of Accounts Officer in the Posts & Telegraphs Department and come to a decision thereon within the said period of one month. The respondents will have the liberty of either reverting the petitioner from the promotional post if he is found guilty and awarded any punishment in the disciplinary enquiry, if in the light of circumstances then existing and the findings of the enquiry officer they consider it necessary in public interest to do so. They will also be at liberty in the event of the petitioner being exonerated in the disciplinary enquiry to make such orders as they may consider just in the circumstance then existing and in the light of the findings of the enquiry officer including an order to give retrospective effect to his promotion as from such date as they may consider proper in the circumstances.

12. The parties will bear their own costs in this writ petition.