Point of Law: Service Law - Non- implementation of order of promotion - Appointments of officers are subject to DAR/Vigilance/ Criminal case clearance by Railways - Officers should be advised that above officiating arrangement is purely on ad hoc basis and this promotion would not confer on them any claim for promotion on regular basis or for seniority.

JUDGMENT :

Heard Mr. N. Deka, learned counsel for the petitioner and Mr. B. Sarma, learned standing counsel for the respondents.

2) By filing this writ petition under Article 226 of the Constitution of India, the petitioner has challenged the non-implementation of the order of promotion dated 15.05.2014 by which the petitioner was promoted to the post of Assistant Security Commissioner/Assistant Commandant at Katihar against an existing vacancy.

3) The learned counsel for the petitioner has referred to the stand taken in the writ petition and has submitted that prior to the issuance of the order of promotion, the authorities had satisfied itself that no “Discipline and Appeal Rules” case is pending that the vigilance clearance had also been obtained from the Zonal Office and only after the said exercise the Railway Board had issue the order of promotion dated 15.05.2014, wherein the name of the petitioner appears at serial no. 47. However, on 21.05.2014, before the petitioner could join, a charge-sheet was submitted to him in connection with an allegation of availing a house building advance for an amount of Rs.5,75,000/-from the Welfare Scheme of Railway Establishment in the year 2012 with fabricated documents and not utilizing the advance for the purpose for which it was granted. On receipt of the charge-sheet, the petitioner submitted his statement of defence on 23.05.2014. The departmental enquiry against the petitioner was started and as per the Enquiry Report, the charges against the petitioner were proved. Resultantly, the competent authority, i.e. the Senior Divisional Security Commissioner/RPF, NF Railway, Lumding awarded punishment of reduction of rank from Inspector to Sub-Inspector for a period of 6 (six) months with non-cumulative effect, and according to the petitioner the period of six months was with effect from 08.02.2015 to 07.08.2015. However, although the punishment period was over, the respondents did not implement the order of promotion dated 15.05.2014. The learned counsel for the petitioner has submitted that the said promotion order was not recalled and therefore, stood alive and was liable to be implemented. It is also submitted that presumably on the same charges on which departmental enquiry had taken place, the Central Bureau of Investigation has also taken up investigation. The petitioner had appeared before the Inspector of Police, CBI, ACB, Guwahati. The CBI Inspector had seized (i) the copy of order dated 08.02.2015, passed in the departmental enquiry, and (ii) pay slip for the month of March, 2017 vide seizure memo dated 27.04.2017. It is submitted that as per his instructions, no charge-sheet has been submitted by the CBI in connection with investigation taken up by them. It is submitted that there was no impediment for the respondent authorities to give effect to his promotional order dated 15.05.2014 and as such the petitioner had served his advocate’s notice dated 15.05.2017 upon the Director General, RPF, Railway Board. The Deputy Director/Sec (E) Railway Board by his reply letter dated 06.07.2017, informed the petitioner that his promotion was subject to Discipline and Appeal Rules (DAR for short)/Vigilance/Criminal case clearance. The learned counsel for the petitioner had submitted that the petitioner had served his representation dated 01.08.2017 to the Director General, RPF, Railway Board, but the same was not responded to.

4) It is reiterated that the purported order of cancelling promotion already granted to the petitioner, if any, was never communicated to the petitioner. It is also submitted that the petitioner has already been punished in the disciplinary proceeding in respect of the same set of facts on which promotion is sought to be denied to him. It is further submitted that the disciplinary proceeding had culminated on 08.02.2015 and as such the period of punishment in respect of reduction in rank from Inspector to Sub-Inspector for a period of six months would have ended on 07