Anand Kumar (Petitioner) v. Union Of India And Anr. (S).

Rajinder Sachar, J.:— This is a petition under Articles 226 and 227 of the Constitution of India against the refusal of the respondents to promote the petitioner as Superintendent Grade I Charge Holder.

2. The petitioner joined as Superintendent B/R Grade I in the office of Garrison Engineer, Sirsa on 5-11-1962. The next promotion is to the rank of Superintendent Grade I Incharge Sub Division. These promotions are required to be considered by the Departmental promotion committee (D.P.C) from the field of choice as indicated by the authorities firm time to time qua. Instructions have been laid down from time to time by the Ministry of Home Affairs with regard to the procedure to be followed by the D.P.C in those cases where seniority list of categories from which promotion or confirmation are required to be considered by the D.P.C are prepared. As early as 31-8-1960 the Ministry of Home Affairs had issued instructions (vide annexure PA to the rejoinder filed by the petitioner) that it has been decided in consultation with the Ministry of Finance that even those officers who are under suspension or whose conduct is under investigation or against whom the departmental proceedings are to be initiated should be considered by the D.P.C though the finding of the D.P.C was to be kept in sealed envelop and they were to be opened after the conclusion of the disciplinary enquiry. The Engineer-in-chief had also issued instructions dated 7-6-1966 (filed as annexure RA to the additional affidavit) filed by the respondents pointing out that in the case of those individuals who are involved in the disciplinary proceedings, the assessment and the finding of the D.P.C will not be indicated in the proceedings but will be placed in a sealed cover attached to the D.P.C proceedings and that the sealed cover was to be opened on the finalisation of the disciplinary proceedings against the affected individual. If after the sealed cover has been opened the action was to be taken as follow:—

(i) If the findings of the D.P.C indicate that the individual was not jet considered fit for promotion or confirmation, no further action will be taken. He will be assessed afresh by future DPCs.

(ii) If the findings indicate that the individual was considered fit for promotion or confirmation will be implemented if he is completely exonerated or given a non-recordable warning provided there is no deterioration and provided further that the panel prepared by the D.P.C is current and has not lapsed. If, however, any other minor or major penalty is imposed he will be assessed afresh by a subsequent D.P.C In the case of deterioration in his record and also if the panel has lapsed the individual should be assessed afresh by a D.P.C”

3. The petitioner was considered in 1964–1965 and 1966 and was being included in the panel drawn up by the Departmental Promotion Committee. But as the number of posts were not sufficient the petitioner was not promoted in the year 1964–1965.

4. Commander Works Engineer, Ferozepur by his Memo dated 9-6-1965 informed the petitioner that it was proposed to institute disciplinary proceedings under Rule 15 of the Civilian in Defence Service (Classification Control and Appeal) Rules, 1952, on two charges relating to two contracts CA. No. CEW-39/62-63 and CA. No. CES-3/63-64. The petitioner on 6-10-1965 submitted his reply to the above charge sheet denying the allegations against him. He prayed that he had not committed any default and that issue of charge, sheet was unfortunate and should be withdrawn. The petitioner did not hear anything further with regard to the charge sheet of 8-6-1965 until he was informed by the Commander Works Engineers by his letter dated 2-3-1968 that with reference to his defence statement dated 6-10-1965, the charge sheet served under CWE dated 8-6-1965 was cancelled (annexure ‘I’ to the petition).

5. It appears that another D.P.C was held from 27-9-1966 to 30-9-1966 and the petitioner was selected for promotion to the post of Superintendent B/R Grade I Incharge Sub-Division. Apparently in pursuance of this an order was issued by the Chief Engineer Western Command on 10-11-1966 ordering temporary promotion of certain persons including the petitioner (a copy of the same has been filed as annexure R.I to the reply filed by the respondents).

6. However, in spite of above order the petitioner was not promoted and he, therefore, filed a representation to the Chief Engineer Delhi Zone on 22-12-1966 protesting against his not being promoted. It was pointed out by him that probably he was not being promoted on the mis-apprehension that he was involved in a court of enquiry while the fact was that he was only a witness in the court of enqutiy and, therefore, those instructions did not apply to him. The court of enquiry in which the petitioner was to appear as a witness had assembled on 20-1-1967 and the petitioner had given his evidence.

7. An order was issued on 30-1-1967 (annexure A to the petition) ordering temporary promotion of certain persons to the Grade I Superintended, B & R, Incharge Sub-Division including the petitioner. In spite of the order of 30-1-1967 the petitioner was not promoted and he again represented to the Chief Engineer on 14-4-1967 pointing out that he was suffering great unnecessary financial loss and his promotion was being withheld without any basis. This representation, however, did not find any favour and the petitioner was informed by the Chief Engineer by his letter dated 26-5-1967 that as he was involved in a court of enquiry and as such he could not be placed in position as Superintendent B/R Grade I, Incharge Sub Division till he is cleared of the court of enquiry and consequential disciplinary action. The Chief Engineer further had the petitioner's name deleted from the promotion order of 30-1-1967 by means of amendment dated 3-7-1967 (annexure ‘S’ to the petition).

8. By Memo dated ???-8-1967 the petitioner was served with a charge sheet intimating to him that it was proposed to take action against him under Rule 16 of the C.C.S (CC & A) Rules, 1965, on the statement of the imputations of misconduct or misbehavior with regard to CA. No. GES-3/63-64 the charge on which he as to be proceeded was said to be based on the statement recorded in the proceedings of the court of enquiry held on 20-1-1967. This charge sheet with respect to contract CA No. GES-3/63-64 was on different basis than charge No. 2 of 8-6-1965 relating to this contract. The petitioner duly replied to the charge on 21-8-1967 pointing out that he had not committed any act which amounts to neglect of duty. This explanation of the petitioner was not considered sufficient and the Commander Works Engineer by his order dated 5-9-1967 found the petitioner guilty of neglect of duty and imposed the penalty of ‘Recordable Warning’ on him.

9. Another D.P.C was held from 4-10-1967 to 7-10-1967. The petitioner's name was kept in a sealed envelop apparently on the assumption that he was involved in an enquiry. As already mentioned above, the charge sheet of 8-6-1965 was cancelled by the order of the Chief Engineer dated 2-3-1968. Soon thereafter the petitioner was served with another charge sheet dated 6-3-1968 proposing to take action against him under rule 16 of ccs (cc&a) rules, 1965, on the allegation that he was guilty of neglect of duty with regard to work in CEW-39/62-63.

10. It may be mentioned that charge No. 1 of 8-6-1965 relating to this contract i.e CEW-39/62-63, had alleged that the petitioner being a Supervisor of the work, did not follow the contract specification in regard to project on which he was employed and the work got executed was below specification as per details given therein. The charge ??? dated 6-3-1968, relating to this contract, however, alleged that the petitioner failed to ensure proper supervision of work resulting in completion of the work by the contractor having many technical defects. It is apparent that two charge-sheets were different in so far as while the first one alleges that the petitioner did not follow the contract specification while the later one alleges that the petitioner failed to ensure proper supervision. The petitioner replied to this charge sheet maintaining that he had supervised the work to the best of his ability. As the petitioner was still not promoted, he by his letter dated 21-9-1968 represented to the Chief Engineer Western Command pointing out that though the disciplinary action in CES-3/63-64 was communicated to him but no action with regard to CEW-39/62-63 had been taken and this was resulting in his promotion being delayed and requesting for expeditious disposal. The petitioner, however, was informed by the respondents hide letter dated 18-11-1968 that his case would be considered on the finalisation of the disciplinary proceedings against him. The petitioner again represented on 21-2-1969 and ultimately the Commander Works Engineer by his order dated 7-8-1968 found the petitioner guilty on the charge sheet of 6-3-1968 and awarded him punishment of censure. Thereafter the petitioner was informed by the respondent by letter dated 17-10-1969 annexure ‘B’ that as he had been censured his case for promotion to the post of Superintendent Grade, J. (H) along with others of his category would now be considered by next D.P.C as and when it meets. The petitioner still persisted by his representation annexure ‘W’ dated 28-7-1970 to the Engineer-in-Chief Army Headquarters pointing out that the charge sheet of 8-6-1965 had been cancelled later on by the order of 2-3-1968 and that there was no reason to with old his promotion on the basis of subsequent charge sheet of 3-8-1967 and 6-3-1968. This representation of the petitioner was rejected by the Chief Engineer by letter dated 28-1-1971 and it was conveyed to the petitioner in March 1971 (annexure Y) that he was not assessed sufficiently high for promotion to the next higher grade. It appears from the return that a fresh D.P.C was held in 1972. Though the petitioner was considered but as his position was not high enough his name was not included in the selected panel. It would be seen that the main grievance of the petitioner namely for promotion on the basis of his original selection was not replied to by the respondents. The petitioner thereafter gave a notice under Section 80 C.P.C dated 9-3-1971 pointing out that he was aggrieved by the order of not promoting hint as Superintendent Grade I to which he was entitled from the original date of promotion i.e 10-11-1966. No relief having been given to the petitioner the present writ petition has been filed.

11. Now as per instructions already mentioned, when the D.P.C therefore, met in September, 1966, it is clear that though the petitioner's name had to be considered, the finding should have been placed in a sealed cover to be opened after the finalisation of the disciplinary proceedings in view of charge sheet dated 8-6-1965 pending against the petitioner. But this mistake was immediately realised as is clear from the fact that though the petitioner's name was amongst those about whom the orders for promotion were passed on 10-11-1966 and 30-1-1967, he was in fact not given promotion. The petitioner of course represented against this but he was informed and in my opinion rightly that as there was disciplinary proceedings endings against him he could not be promoted before the finalisation of those proceedings. The respondents even went further and removed the mistake that had crept in when by order of 3-7-1967 it deleted the petitioner's name from the promotion order of 30-1-1967. So far the action of the respondents is not open to objection but the charge sheet of 8-6-1965 was cancelled on 2-3-1968. No doubt the petitioner, thereafter was proceeded against on two charge sheets dated 3-8-1967 and 6-3-1968 which resulted in record able warning on 5-9-1967 and censure on 7-8-1969. But the question arises whether the action of the respondents in refusing to promote the petitioner on the basis of his selection in 1966 is authorised in law.

12. The only justification for its action pleaded by the respondents is that as the petitioner was involved in a disciplinary proceedings he could not have been so promoted. In so far as the action of the respondents refusing to promote him in pursuance of the order dated 30-1-1967 was concerned at that time there may not be much difficulty in accepting the argument of the counsel for the respondents. The position, however, changed materially when the order of 8-6-1965 was cancelled by the respondents on 2.3.1968 Cancellation of the change sheet dated 8-6-1965 necessarily means that the petitioner was not involved in any disciplinary proceedings prior to 3-8-1967 when a new charge sheet was given to him. No doubt at the time when originally the promotions were made on 30-1-1957 the petitioners could not be given promotion and his name had to be kept in abeyance because there were proceedings pending against him in pursuance of the charge sheet of 8-6-1965. The same, however, cannot be said when that order was withdrawn on 2.3.1968 In order, therefore, to justify the refusal to any decision to give effect to the promotion order of 30-1-1967, it has to be shown that the petitioner was involved in any disciplinary proceedings at that particular time. The whole purpose of considering the cases of those persons who are involved in disciplinary proceedings is to see that their future prospects are not affected adversely. As a matter of fact this was itself the recommendation of the Ministry of Home Affairs when they issued instructions in annexure PA providing that even those persons who are under suspension or were being proceeded against would be considered so that if subsequently they are exonerated their prospects of promotion may not be affected. The procedure laid down in annexure RA also provides that if a finding indicates that the individual was considered fit for promotion or confirmation and he is completely exonerated and there has been no deterioration in his subsequent recorded performance, the recommendation of the D.P.C will be implemented. Now assume that in the present case there had been no subsequent charge sheet of 3.8.1967 and 6.3.1918 and all that had happened was that the original charge sheet of 8.6.1965 had been cancelled by the order of 2-3-1968. Could in these circumstances it be said that because disciplinary proceedings were pending against the petitioner in 1966–1967 when promotions were ordered the same should not be carried out subsequently when the proceedings against him were dropped. It seems to me that such an argument would strike at the very root of the procedure laid down by the instructions itself and would work obviously manifest injustice to the employees. In my view the only justification for not promoting a person even though selected by the D.P.C can be if ultimately he is not completely exonerated. But here because of the cancellation of charge sheet of 8.6.1965, the petitioner was not involved in any disciplinary proceedings in 1966–1967 when promotion had to be given effect to, and there would be thus no justification not to consider his case on the basis of selection by the D.P.C and in terms of the procedure laid down in annexure RA of 7-6-1965. Had the petitioner not been selected in 1966 by the D.P.C and had his case been considered in 1968–1969 when he had been found guilty in pursuance of the charge sheet on 3.8.1967 and 6-3-1968 the position might have been different. In that case there would be disciplinary proceedings pending against him resulting in finding him guilty. But in the present case, the petitioner is only seeking to establish that his right which had vested in him in 1966, should be given effect to because there was in fact no disciplinary proceedings pending against him at that point of time and he was not thus guilty in pursuance of this. If the petitioner was wrongly charge sheeted on 8.6.1965 (as is clear from its cancellation on 2.3.1968), he has a right to urge that on termination of those proceedings his case should be considered on the footing that there were no disciplinary proceedings in which he was involved on 30.1.1967 As a matter of fact even the respondents themselves have further liberalized the procedure in case of those persons who are even found guilty by providing that the cases of those persons should be reviewed by a special D.P.C and decision taken whether or not to promote the ind visual in spite of the disciplinary proceedings against him and the punishment awarded to him. It has also been provided that if the decision is in favour of the person promotion will be effected and seniority restored according to the panel position assigned to him by the D.P.C which originally considered him. (This procedure is laid down in a circular by the Engineer in Chief No. 43319.EIR dated 31-12-1970 and is to be found in the file PF/File 31291.EID(CP) Main-heading Promotion Case-MES 304316 Shri Anand Kumar, produced in the court by the respondents). I am pointing this out because in the return it has been sought to be explained that the panel is normally to be operate for one year with effect from the date of the D.P.C meeting subject to a maximum of one and half year, and, therefore, the panel which was formed in October, 1967 lapsed in March, 1969 and the proceedings against the petitioner only concluded subsequently on 7th August, 1969. The petitioner is not making a grievance of the panel which was formed in 1967. His grievance is that having been selected by the D.P.C in 1966 and the promotion having been ordered in January, 1967, the same could not be denied to him subsequently because the very basis on which it was with-held, namely the charge sheet of 8.6.1965 had been cancelled on 2.3.1968, and was thus non-existant at the relevant time. In my opinion the respondents have denied promotion to the petitioner on the mistaken assumption that subsequent charge sheet of 3.8.1967 and 6.3.1968 were relevant for its action in November, 1966 or January, 1967. This obviously is fallacious and not permissible according to Rules and to the procedure laid down. At the relevant time, it has to be taken that there were no disciplinary proceedings against the petitioner. Once, therefore, the petitioner had been selected and an order of promotion had been made on 30-1-1967 the same should have been given effect to subsequently, when charge sheet of 8-6-1965 was cancelled. In my view, therefore, the petitioner had a legitimate grievance that after the withdrawal of charge sheet of 8-6-1965, refusal of the respondent to give him due promotion on the basis of selection by D.P.C in 1966 and refusal to give effect to his promotion order of 30-1-1967 were unauthorized and illegal.

13. In the above circumstances I would issue a writ quashing the impugned orders dated 3-7-1967 and 11-3-1968 and directing the respondents to give effect to the promotion order dated 30-1-1967 with regard to the petitioner. The result is, the writ petition is allowed as indicated above with costs. Counsel's fee Rs. 200.

14. Petition allowed.