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Delhi High CourtIndian Cases

C.P. Gupta vs Union Of India (Uoi) And Ors. on 31 August 2006

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Delhi High Court
C.P. Gupta vs Union Of India (Uoi) And Ors. on 31 August, 2006
Author: Swatanter Kumar
Bench: Swatanter Kumar, G.S. Sistani
JUDGMENT

Swatanter Kumar, J.

1. The petitioner, a Civil Engineer, is working with General Reserve Engineer Force of Border Roads Organisation for a considerable time. It is the case of the petitioner that he was performing his duties with utmost dedication, sincerity and his working was appreciated by all concerned and he was even awarded two commendatory certificates by the Central Government in the year 1994 and 2002. Based on his overall meritorious performance, the petitioner always earned his promotions in time. Vide order dated 26.4.04 the petitioner was promoted to the grade of Non-functional Executive Engineer (Civil). He was given posting orders as Executive Engineer (Civil), Non-functional selection grade on 27.4.04 itself. The Departmental Promotion Committee, for promotion to the rank of Superintending Engineer (Civil) met and vide order dated 30.8.05, the petitioner Along with two others namely Shri Narendra Prasad and Shri Purshothaman KP have been promoted to the grade of Superintending Engineer (Civil). The promotion was to be effective from 1.9.05 or the date of assumption of charge of the post, whichever is later. The aforesaid order required the officers selected to take charge within a period of one month from issuance of notification in the Gazette of India. According to the petitioner, he became entitled to be immediately posted as Superintending Engineer (Civil) upon issuance of the letter dated 30.8.05. However, respondent No. 3 with malafide intentions neither sent a copy of the order to the petitioner nor issued any posting orders in respect of the petitioner though he issued posting orders of other two selected officers and in furtherance to those orders they have joined also.

2. In this petition under Article 226 of the Constitution of India, the petitioner questions the action of the respondents in not issuing the letter of posting to the petitioner and giving him the benefits of the post of Superintending Engineer as per rules. Thus, he prays for issuance of a writ, order or direction to the respondents to issue posting order in furtherance to the order dated 30.8.05 and to grant all consequential benefits including seniority to the petitioner. This claim of the petitioner is refuted by the respondents on the ground that the petitioner is involved in a grave misconduct of misappropriation of public fund of around Rs. 2.6 crores while functioning at OC contract and the decision of the disciplinary authority to proceed against him under CCS (CCA) Rules 1965, has already been taken well before holding of the DPC and as such there was no question of issuing him any posting orders and recommendation of DPC in regard to his selection should be kept in a sealed cover. According to the respondents, the petitioner has not approached the Court with clean hands and correct facts. According to the respondents, the correct facts are as under:

3.1 That Shri C.P.Gupta, the petitioner while serving as Officer Commanding of 97 Road Construction Company (in short OC 97 RCC) of General Reserve Engineer Force (GREF in short) of Project Setuk in Tripura State was appointed as OC contract of various Contracts in connection with constructions/upgradation of road Jowai-Badarpur-Churaibari (NH-44), Karimganj Bye pass (NH-44) and Karimganj-Sutarkandi road (NH-151).

3.2 That the competent authority found certain irregularities in the matter of execution of contract, which has resulted in misappropriation of huge amount of public fund by way of overpayment of about Rs. 2.6 crores. The matter was investigated by the Department and the Hon’ble President (Hon’ble Raksha Mantri on his behalf) being the disciplinary authority considered the case in depth.

3.3 That the Disciplinary Authority considering the gravity of the vigilance case contemplated against the petitioner and prima facie involvement of the petitioner in misappropriation of public money of about Rs. 2.6 crores, ordered for initiation of disciplinary proceedings against 13 GREF officers including the petitioner under the provisions of CCS (CCA) Rules 1965 vide Government of India, Border Roads Development Board order No. BRDB/01 (117)/04-GE.II dated 01 Feb 2005. The copy of the same is annexed herewith as Annexure R-1.

3.4 That the case remained under correspondence between the Ministry and Administrative Department quite some time for issue of charge sheet against the petitioner.

3.5 That in meanwhile the Departmental Promotion Committee (DPC in short) constituted and said Committee had recommended his case for promotion to the post of Superintending Engineer (Civil).

3.6 That since the petitioner was involved in misappropriation of public money of about Rs. 2.6 Crores, the competent authority decided to withhold the promotion of the petitioner till finalisation of vigilance case or fully exonerated from the charge.

3.7 That accordingly, the Article of Charges were finalised by the Disciplinary Authority and issued to the petitioner on 30 Sep, 2005. The petitioner has received the same on 07 Oct, 2005. The Article of Charges contained the full details of charges proposed to be leveled against the petitioner for his failure to maintain absolute integrity and devotion to duty vide Government of India, Border Roads Development Board Order No. BRDB/02(169)/2005/GE.II dated 30 Sep, 2005 giving him an opportunity to express his version if any thereon. The copy of the same is annexed herewith as Annexure R-2.

3.8 That the petitioner submitted his reply to the Article of Charges to the Disciplinary Authority for consideration.

3.9 That in this connection, it is also submitted that the Hon’ble President (RM on his behalf) has already issued the order dated 01 Feb 2005 for taking severe disciplinary action and the disciplinary action is being contemplated against the petitioner since Feb 2005.

3.10 That the issue of charge sheet was merely a technical formality. In this context reference is invited to Govt of India, DOPT OM No. 22012/99-Esrt(D) dated 25th Oct 2004, wherein it is clearly stipulated that where a serious complaint is under investigation and the Govt is within its right to suspend the official, such cases will also be placed in the sealed cover. The copy of the same is annexed herewith as Annexure R-3

3. The learned counsel appearing for the petitioner while referring to the order dated 30.8.05 stated that the said order constitutes a complete promotion in all respects and as stated at the end of the letter “The charge assumption report of the officer may please be sent to this Sectt. within a period of one month for issue of notification in the Gazette of India”is a mere formality and the respondents cannot deny promotion to the petitioner even if subsequently a disciplinary action is contemplated against him. The counsel for the petitioner also states that the letter was to take effect from 1.9.05 or from the date of assumption of charge of the post, whichever is later. In other words, the steps in furtherance to the order dated 30.8.05 is a mere formality. Further, he also relied upon the letter dated 7.9.05 issued to the other selected candidates in which it is also recorded that ” It is clarified that cognizance of involvement of the officers will be taken only if Memo of charges has been served on the officers under CCS (CCA) Rules 1965 or S of E has been ordered under Army Act. Laying emphasis on this, it is stated that the chargesheet was not served upon the petitioner before issuance of the order dated 30.8.05 and on this premise, the respondents cannot deny promotion to the petitioner. The counsel for the petitioner placed reliance upon the Judgment of the Supreme Court in the case of Bank of India and Anr. v. Degala Suryanarayana to contend that no sealed cover procedure could be followed in the present case as the departmental enquiry in law would be initiated subsequent to the date of consideration of promotion. The counsel also relied upon another Supreme court judgment JT 1991 (4) SC 109 titled as Union of India and Ors. v. K.V.Jankiramna and Ors. in support of the contentions afore-noticed.

4. On behalf of the respondents, it is contended that the letter dated 30.8.05 does not promote the petitioner in all respects inasmuch as post and joining by the promoted employee is an essential part of promotion and once the order of posting was not issued in light of the pendency of the disciplinary proceedings against the petitioner, the respondents were justified in not issuing the posting order and applying the sealed cover procedure to the case of the petitioner.

5. There is no dispute to the fact that the petitioner was served with a chargesheet dated 7.12.05. It is equally true that the petitioner was selected vide letter dated 30.8.05 which itself was a conditional letter and could become operative only at the earliest on 1.9.05 or even later when the petitioner actually is posted and joined his promoted post. The DPC had met on 12.7.05. As per the avernments contained in the counter affidavit which are based on records, an order was passed on 1.2.05 (Annexure R-1 to the counter affidavit) where it was observed that a group of 13 GREF officers and two Army officers were alleged of mishandling in the matter of conclusion, operation and execution of contracts at all levels and it has been decided to continue with the proceedings against Army officers under the Army Act and GREF officers as per provisions of the CCS(CCA) Rules in consultation with the CVC with the prior approval of the Disciplinary Authority. Petitioner was one of the officers involved in this. The counsel for the petitioner except the letter issued by the respondents has not been able to bring to our notice that the departmental proceedings would be deemed to have been initiated only when chargesheet is served upon the officer and prior thereto the authorities cannot even take the method of sealed cover procedure. Reference was also made to Clauses 2 and 7 in Chapter III relating to Suspension and Disciplinary Action of Government Servant and their Promotions as contained in Swamy’s manual on Disciplinary Proceedings which reads as under:

2. Cases to whom sealed cover procedure applicable.-At the time of consideration of the cases of Government servants for promotion 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 disciplinary proceedings are pending; and
(iii) Government servants in respect of whom prosecution for criminal charge is pending.
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7. Sealed cover applicable to officers coming under clud after holding of DPC but before promotion-A Government servant, who is recommended for promotion by the Departmental Promotion Committee but in whose case any of the circumstances mentioned 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 charges against him and the provisions contained in this OM will be applicable in his case also.

(G.I., Dept. of Per. & Trg., O.M. No. 22022/4/91-Estt.(D), dated the 14th September,1992.)

6. The bare reading of the above Government instructions show that a Government servant who is recommended for promotion but in whose case any of the circumstances mentioned above, arise after the recommendations of the DPC but before his actual promotion, will be considered as if placed in a sealed cover. Pendency of any disciplinary proceedings should be brought to the notice of the Departmental Promotion Committee at the very initial stage itself. Promotion would obviously have three ingredients; selection by DPC, acceptance of recommendation of DPC by the competent authority and the officer joining his posting in furtherance to such order particularly when the order makes joining as a condition in the order of posting. In order to give promotion in its true sense, these steps must be completed. It is upon completion of these steps that the promotion actually takes effect. The concept of actual promotion cannot be treated synonymous to a selection or approval or approval by the authorities. Right of an employee to receive benefits of service of the promoted post would accrue only upon his joining the promoted post. In the event, any of the stated steps are kept in abeyance, it would not amount to granting actual promotion to the employee.

7. Promotion includes stepping up to a higher post or a higher scale. In literal sense, promote means to advance to a higher position, grade or honour. It must be understood in the wider sense. The employee would not have a right to be promoted but has a right to be considered for promotion. Wide discretion is vested in the appointing authority particularly when the promotion is based on selection process. The disciplinary authority has to consider the recommendation of the selection committee as well as the service record and then alone it may grant appointment to a person upon promotion.

8. The reliance by the petitioner upon the judgments of the Supreme Court and particularly in the case of Jankiraman (supra) is really of not much help to the petitioner. In that case the delinquent had been acquitted from the criminal charges which were similar to the article of charges in a departmental enquiry. There was considerable delay in commencing the departmental proceedings. It was in those circumstances that Court gave relief to the petitioner. In the present case, it has been specifically stated in the counter affidavit that it was decided to take disciplinary action against various officers of the GREF as well as Army much prior to the date when the DPC met on 12.7.05. Even if this fact was not brought to the notice of the DPC, the disciplinary authority was fully justified in taking note of such proceedings and declining to issue the order of posting permitting the petitioner to join the promoted post. In the case of Union of India and Another v. R.S. Sharma , the Supreme Court in somewhat similar circumstances and after considering the judgment of the Supreme Court in the case of Jankiraman (supra) held that recourse to sealed cover procedure was fully justified and unless he is completely exonerated from the article of charges, the employee could not claim promotion as a matter of right. While considering the applicability of the procedure of sealed cover to such cases, the Court held as under:

The conditions necessary to invoke the said clause are:
(1) Recommendations of DPC should have been made for promoting the government servant. (2)After such recommendations and before he is actually promoted any one of the circumstances in Clause (ii) (sic iii) of the second para (supra) should have arisen.
13. Two factual aspects are admitted. One is that the respondent was not actually promoted even now. The other is that formal sanction has been accorded to prosecute him in the meanwhile, if that be so, para 7 of the Sealed Cover Procedure would entirely apply and the recommendations made by DPC in respect of the respondent have to remain in the sealed cover “until he is completely exonerated of the charges against him.

14. Shri anil Kumar Sharma, learned Counsel adopted the contention that the situation would not have arisen as envisaged in para 7 of the Sealed Cover Procedure if the appellants had complied with the conditions stipulated in the office memorandum dated 31-7-1991 either on that day itself or at least soon thereafter by promoting the respondent. The learned Counsel contended that the Department had willfully and deliberately avoided to comply with the said office memo dated 31-7-1979, and hence the appellants should not be permitted to take advantage of their own wrong.

15. We are not impressed by the said arguments for two reasons. One is that, what the Department did not do is not the yardstick indicated in para 7 of the Sealed Cover Procedure, what is mentioned therein is that it cannot apply to the government servant who is not “actually promoted” by that time. Second is that, the stand taken up by the Department is that in spite of deletion of Clause (iv) of the second para, the recommendations of DPC must remain in the sealed cover on account of the conditions specified in Clause (iii) of the said paragraph by virtue of the operation of para 7 thereof. We cannot say that the said stand was incorrect and, therefore, we are unable to blame the Department for not opening the sealed cover immediately after 31-7-1991.

9. Promotion in fact and in law is advancement for actual accrual of benefits of the promoted post. In other words, a person essentially must work on the promoted post before he can claim any benefits accruing there from. This is a settled principle of service jurisprudence and as such significant steps towards fulfillment of this object is issuance of posting order and joining by the concerned officer/official. It cannot be accepted that the order dated 30.8.05 which stipulated that the order of promotion would be effective from 1.9.05 or the date of assumption of charge of the post, whichever is later has no consequence and is inconsequential. Once the disciplinary authority passes an order, the order has to be read in its entirety and every part thereof has to be given effect to keeping in view the facts and circumstances of the case. Non-issuance of letter of posting and consequent non-joining by the petitioner are events which caused serious impediment in the way of the petitioner in seeking actual promotion. The decision to take disciplinary action was taken as back as in January, 2005 thereafter various correspondence was exchanged between the departments directly concerned with such disciplinary action. It is not possible to ignore the fact that number of officers both from Army and GREF were involved and it was likely to take some time before the anticipated action could actually culminate into issuance of a chargesheet which was issued on 7.12.05.

10. For the reasons aforestated, we are unable to find any merit in this writ petition and as such the same deserves to be rejected. The writ petition is, thus, dismissed while leaving the parties to bear their own costs.