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High Court of Judicature at Madras
M.M. SUNDRESH, J.
K. Karthikeyan
Versus
Indian Oil Corporation Limited, rep. by the Executive Director (HR), Co., New Delhi & Others
W.P. No. 18765 of 2013 & M.P. No. 1 of 2013
Decided on: 21-11-2014
Right to Information Act - Consequential rights and service benefits – Employment and service - Eligible for promotion - a decision was taken by Disciplinary Authority to initiate proceedings - Resolution was passed by respondents regarding promotion followed by Circular - Pursuant to decision taken to enquire about certain illegality said to have been committed by Officers of respondents Central Bureau of Investigation took up investigation and thereafter filed a closure report on as no sufficient material was available to proceed further against any officer - Pursuant to tentative decision taken petitioners name was not included promotion panel issued of was informed by Department to petitioner by way of a reply given under Right to Information Act was placed panel with have been promoted - Petitioner was also informed by a subsequent reply that his name is kept under sealed cover and his juniors were promoted to Grade - Those circumstances petitioner has filed present writ petition seeking a direction to respondents to open sealed cover and to include name of petitioner for promotion to post of Grade officer first respondent Corporation with retrospective effect on basis of appropriate place to which he is eligible and grant promotion with all consequential rights and service benefits to petitioner - By way of subsequent development after filing of writ petition a charge sheet was issued to petitioner – Held, drawing our attention to decision of this Court in Union of India and Another submitted that spite of decision of this Court in case supra view of office memorandum and light of fact that proceedings were initiated both criminal and departmentally High Court committed an error by overlooking of sealed cover process and contended that direction issued by it cannot be sustained – court have carefully gone through factual position and ultimate ratio laid down by this Court - Even though said decision this Court has distinguished decision case supra and held that same is not applicable to its case light of conditions mentioned as well as office memorandum and of categorical finding that none of conditions mentioned therein has been fulfilled court are of view that decision case supra is not helpful to case of appellant - In view of the above said pronouncement legal position is very explicit that merely because an informal enquiry is initiated against an alleged incident and same is at preliminary stage an employee cannot be denied promotion - Therefore light of said pronouncement, this Court is of view that petitioner is entitled to succeed - Coming to second submission made on behalf of Senior Counsel appearing for respondents this Court is of view that respondents have taken a contrary view counter affidavit regarding application of reliance made upon Boards resolution cannot be made applicable to present case retrospectively - Even otherwise present case has filed closure report - Therefore circular also cannot have any application as it is applicable to a case where Vigilance have recommended for initiation of penalty proceedings - From facts it is clear that but for tentative decision taken petitioner would have been promoted along with others - Therefore on facts decision made by Board followed by Circular cannot have application to case on hand - Writ petition stands allowed
1. The petitioner herein joined the service of the respondent as Officer Trainee in the year 1985. Thereafter, he was working as a Chief (Employee Relation) Manager in “F” Grade at Eastern Region, Kolkatta. At present, the petitioner is working as Chief Law Manager in “F” Grade at Chennai. The next promotion avenue for the petitioner is Grade “G”. The petitioner became eligible for promotion in the year 2012.
2. The respondents issued promotion policy after adopting DOPT OM dated 14.09.1992 on 08.02.2012. The Departmental Promotion Committee met and selected the officers on 25.02.2013 and 12.02.2013. The petitioner's name was considered and included in the promotional panel.
3. On 19.03.2013, a decision was taken by the Disciplinary Authority to initiate proceedings. On 26.03.2013, a resolution was passed by the respondents regarding promotion followed by Circular dated 28.03.2013. In pursuant to the decision taken to enquire about certain illegality said to have been committed by the Officers of the respondents, the Central Bureau of Investigation took up investigation and thereafter, filed a closure report on 30.03.2013 as no sufficient material was available to proceed further against any officer. In pursuant to the tentative decision taken, the petitioner's name was not included in the promotion panel issued in the month of April, 2013. It was informed by the Department to the petitioner by way of a reply given under the Right to Information Act dated 17.05.2013 that he was placed 12th in the panel with 86.690 marks and upto 71st rank person with 81.75 marks have been promoted. The petitioner was also informed by a subsequent reply dated 03.06.2013 that his name is kept under sealed cover and his juniors were promoted to Grade “G”. In those circumstances, the petitioner has filed the present writ petition seeking a direction to the respondents to open the sealed cover and to include the name of the petitioner for promotion to the post of Grade “G” officer in the first respondent Corporation with retrospective effect, on the basis of the DPC-2013, at the appropriate place to which he is eligible and grant promotion with all consequential rights and service benefits to the petitioner. By way of subsequent development, after filing of the writ petition, a charge sheet was issued to the petitioner on 06.09.2013.
4. Submissions of the Petitioner:-
The learned counsel appearing for the petitioner submitted that on the date of the consideration for promotion, there was no departmental proceedings pending against the petitioner. The subsequent charge sheet issued after filing of the writ petition cannot be a basis to deny the entitlement of the petitioner for promotion. Even the charge levelled against him is frivolous. The respondent, after accepting the applicability of DOPT OM dated 14.09.1992, has taken a different stand in the counter affidavit by relying upon the Circular dated 26.03.2013. The said Circular, even assuming is applicable, cannot be put against the petitioner retrospectively. In support of his contentions, the learned counsel appearing for the petitioner has made reliance upon the following decisions.
(1) Union of India Vs. K.V.Jankiraman ((1991) 4 SCC 109);
(2) Union of India Vs. Tushar Ranjhan Mohanty, ((1994) 5 SCC 450);
(3) Union of India Vs. Dr. Sudha Salhan ((1998) 3 SCC 394);
(4) Coal India Ltd. Vs. Saroj Kumar Mishra, ((2007) 9 SCC 625);
(5) Union of India Vs. Sangram Keshari Nayak, ((2007) 6 SCC 704);
(6) Union of India Vs. Anil Kumar Sarkar, (2013) 4 SCC 161;
(7) E. Pitchaimari Vs. The Special Commissioner and Transport Commissioner, Chepauk, Chennai – 5 (Unreported decision of the Division Bench dated 10.4.2008 in W.A.No.115 of 2008 on the file of High Court of Madras);
(8) G. Venkatachalam Vs. Special Commissioner and Commissioner of Revenue Administration ((2013) 5 MLJ 59);
(9) P. Chinnadurai Vs. The Secretary to Government, Commercial Taxes & Registration Deparmtent and another, (Unreported decision da
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