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2024 Supreme(Online)(CAT) 12829
CENTRAL ADMINISTRATIVE TRIBUNAL
Shri Sudhi Ranjan Mishra, J, Shri Pramod Kumar Das, A
Ashiquzzaman – Appellant
Versus
Union of India through the Secretary, Department of Revenue, Ministry of Finance – Respondent
OA No. 15559 of 2010
For the Appellant: Mr. T.R. Mohanty
For the Respondents: OM rR. R .DS. P Eat n Ra ik
The right to consideration for promotion is fundamental, but does not guarantee promotion when pending allegations exist; sealed cover procedure must be applied lawfully.
Headnote:(A) Administrative Law - Promotions - Sealed Cover Procedure - The applicant was not promoted despite being clear from vigilance status after the revocation of his suspension. The DPC adhered to the sealed cover procedure properly as their assessment was deferred due to ongoing vigilance status. The Tribunal emphasized that the fundamental right of consideration for promotion does not equate to an absolute right to promotion. (Paras 1, 4, 6, and 11)
(B) Principle of Sealed Cover Procedure - Promotion cannot be withheld merely on the ground of pendency of disciplinary proceedings unless a charge-memo or charge-sheet is issued. DPC's recommendations should be reviewed comprehensively, especially when delays in proceedings exist. (Paras 6 and 10)
Facts of the case:
The applicant was seeking promotion to Joint Commissioner, which was denied while his batchmates were promoted based on the DPC recommendations made while he was under suspension. The allegations against him were under consideration and required updates for his promotion consideration.
Findings of Court:
The responses from the DPC were inadequate regarding the deferment of the applicant's assessment due to insufficient vigilance status, suggesting a review is necessary.
Issues: Whether the applicant was unjustly denied promotion due to the DPC’s sealed cover approach.
Ratio Decidendi: The Tribunal ruled that the failure to assess promotional eligibility along with other candidates due to pending allegations without charge-memo issuance was improper.
Result: The case for the applicant requires reconsideration based on the established procedural requirements of promotion assessments.
| Table of Content |
|---|
| 1. facts of the applicant's service history and promotion denial. (Para 1 , 2) |
| 2. arguments regarding procedural adherence by dpc in the applicant's promotion case. (Para 4) |
| 3. the ratio decidendi concerning the legality of dpc procedures involving sealed cover. (Para 5 , 7) |
| 4. court's observations on the inadequacy of dpc handling and necessity for review. (Para 6 , 10 , 11) |
| 5. conclusion on the need for re-evaluation of the applicant's promotion eligibility. (Para 12) |
ORDER
PRAMOD KUMAR DAS, MEMBER (A):
The facts of the matter are that the applicant is a Direct Recruit Office of Indian Customs and Central Excise Service of 2009 batch. He joined the service in 2009 as Assistant Commissioner. Thereafter, in April, 2014 he was promoted to the post of Dy. Commissioner. He was placed under suspension in contemplation of disciplinary proceedings vide order dated 25.10.2018. The order of suspension was revoked w.e.f. 22.07.2019 vide order dated 08.03.2021.
2. According to the applicant he was due for promotion to Joint Commissioner when his batchmates (2009) were promoted to Joint Commissioner w.e.f. 01.01.2019, 01.01.2020 (2010 batch), and 01.01.2021 (2011 batch) but he could not be promoted since he was under suspension. Thereafter, though vide order dated 08.03.2021 his order of suspension was revoked w.e.f. 22.07.2019 yet he could not be given promotion when officers of 2012 batch were promoted to the post of Joint Commissioner vide order dated 11.04.2022 although he was neither under suspension nor any departmental/criminal proceedings was initiated against him as per the DoP&T OM dated 14.09.1992. According to him, in terms of DoP&T OM dated 25.10.2004, the crucial date for vigilance clearance in a review meeting of the DPC while considering an employee for promotion is the date when a junior is promoted. It is stated that sealed cover procedure of the DPC recommendation is adhered to only when an employee was under suspension and charge sheet in departmental or criminal case, as the case may be, is issued, which is not his case, yet he was not given promotion though there was no impediment as on the crucial date, i.e. 01.01.2021. By placing reliance on the DoP&T OMs dated 08.09.1998 and 16.06.2000, it is contended that five years ACRs/APARs of preceding vacancy/panel year is to be taken into consideration. The DPC considered for promotion to Joint Commissioner against the RY 2022-23. For this purpose, the DPC as per the DoP&T OMs is to take into consideration the preceding five years ACRs/APARs staring from 2016- 17 upto 2020-21and his five years annual ACRs/APARs have been graded as outstanding. Since, there was no impediment for his promotion when officers of 2012 batch were promoted to Joint Commissioner, he presumed that his case has been kept in sealed cover and/or for some reason or the other his case for promotion has been deferred. It is also stated that since no appeal lies against the Presidential order, he has approached this Tribunal in the present OA inter alia praying as under:
“8.1. to allow the present Application;
8.2. to quash and set aside the impugned Promotion Order dated 11.04.2022 [Annexure: A/1] to the extent that it is detrimental to the Applicant in as much as that the name of the Applicant does not appear in the impugned Promotion Order dated 11.04.2022 [Annexure: A/1];
8.3. to consequently direct the Respondents that if the case of the Applicant has been placed in Sealed Cover, it should be opened immediateolyr ,a anldte grinvaetni veeffleyc;t to;
8.4. to consequently direct the Respondents that if the case of the Applicant has been deferred for any reason, a Review DPC may be convened forthwith to consider the case of the Applicant for promotion as Joint Commissioner;
8.5. to consequently direct the to promote the Applicant as Joint Commissioner with effect from 11.04.2022 by suitably modifying the impugned Promotion Order dated 11.04.2022 [Annexure: A/1];
8.6. to consequently direct the Respon
