IMPORTANT POINT
Awarding of censure is a blame worthy factor and findings of sealed cover of Departmental Promotion Committee are not to be acted upon and case for promotion may be considered by next DPC in normal course.

Headnote:SERVICE LAW — Promotion — Departmental Promotion Committee made selection on 1-11-1999 but since inquiry was pending against respondent sealed cover procedure was adopted — Penalty of censure was awarded to respondent on 13-9-2001 and promotion was granted on 26-11-2001 — Claim for promotion with effect from 1-11-1999 on plea that penalty of censure was not a bar for promotion and sealed cover should have been opened — Central Administrative Tribunal allowed the application — High Court upheld the order in writ — Appeal — Whether High Court was right in holding that awarding of penalty of censure would not affect promotion of respondent and would not stand on the way of promotion? No.
       Held : Awarding of censure, therefore, is a blameworthy factor. A bare reading of Rule 3.1 as noted above makes the position clear that where any penalty has been imposed the findings of the sealed cover are not to be acted upon and the case for promotion may be considered by the next DPC in the normal course. (Para 10)
       Having regard to the penalty imposed on him, undisputedly the respondent has been given promotion with effect from 26.11.2001. His claim for promotion with effect from 1.11.1999 was clearly unacceptable and, therefore, the CAT and the High Court were not justified in holding that he was entitled to be promoted with effect from 1.11.1999. The order of High Court affirming the view taken by the CAT cannot be sustained and is, therefore, set aside. (Para 11)

JUDGMENT

Dr. Arijit Pasayat, J. — Leave granted.

2. Challenge in this appeal is to the judgment of the Division Bench of the Kerala High Court dismissing the writ petition filed by the appellants. In the writ petition challenge was made to the order passed by the Central Administrative Tribunal, Ernakulam Bench (in short the ‘CAT’) in O.A. No. 203 of 2002.

3. The controversy lies within a very narrow compass.

4. Departmental enquiry was started against the respondent on 3.8.1999. The Departmental Promotion Committee (in short the ‘DPC’) made the selection on 1.11.1999. Since the enquiry was pending against the respondent, sealed cover procedure was adopted. On 13.9.2001 the penalty of censure was awarded. Promotion was granted to the respondent on 26.11.2001. However, he claimed that promotion should have been given to him with effect from 1.11.1999. He moved the CAT seeking for such direction. CAT by its order dated 18th June, 2004 held that penalty of censure is not a bar for promotion and though the sealed cover procedure was adopted, the sealed cover should have been opened and the recommendation of DPC should have been given effect to by giving the respondent promotional benefit with effect from 1.11.1999.

5. The order of CAT was challenged before the High Court by filing a writ petition. The High Court noted that awarding of penalty of censure would not affect the promotion of the respondent and the department was not right in contending that the awarding of penalty (censure) would stand on the way of promotion. Accordingly the writ petition was dismissed.

6. Learned counsel for the appellants submitted that the effect of Rule 3.1 of the Office Memorandum relating to promotion of government servants dated 14.9.1992 issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, has been lost sight of. According to him, Rule 3.1 clearly postulates that where penalty has been imposed, findings of the sealed cover/covers are not to be acted upon and the case of promotion can be considered by the next DPC in the normal course.

7. Learned counsel for the respondent on the other hand submitted that the awarding of penalty i.e. censure was not the sole ground for seeking promotion with effect from 1.11.1999, and it was because of the conclusion that the validity of previous panel had been exhausted.

8. Few Rules as contained in the Office Memorandum need to be noted.

Rules 3 and 3.1 read as follows:

Rule 3 : On the conclusion of the disciplinary case/criminal prosecution which results in dropping of allegations against the Govt. servant, the sealed cover or covers shall be opened. In case the government servant is completely exonerated, the due date of his promotion will be determined with reference to the position assigned to him in the findings kept in the sea1ed cover/covers and with reference to the date of promotion of his next junior on the basis of such position. The Government servant may be promoted, if necessary, by reverting the Junior, most officiating person. He may be promoted notionally with reference to the date of promotion of junior. However, whether the officer convened will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent, will be decided by the appointing authority by taking into consideration all the facts and circumstances of the disciplinary proceedings/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so. It is not possible to anticipate and enumerate exhaustively all the circumstances under which such denials of arrears of salary or part of it may become necessary. However, there may be cases where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the crimina

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2007 Supreme(SC) 530

IMPORTANT POINTAwarding of censure is a blame worthy factor and findings of sealed cover of Departmental Promotion Committee are not to be acted upon and case for promotion may be considered by next DPC in normal course.

Cases Referred (1)

IMPORTANT POINT
Awarding of censure is a blame worthy factor and findings of sealed cover of Departmental Promotion Committee are not to be acted upon and case for promotion may be considered by next DPC in normal course.