A minor penalty of censure does not bar promotion eligibility if its currency has expired, necessitating a review of the decision.

ORDER

By Hon’ble Mr. Manish Garg, Member (J)

In the present Original Application filed under Section 19 of the Administrative Tribunals Act , 1985, the applicant has prayed for the following reliefs:-

1. “To quash and set aside the impugned orders dated 16.12.2013, 28.10.2014, and 20.07.2015, along with all consequential benefits.

2. To direct the respondents to hold Review DPC to reconsider the case of the applicant for inclusion of his name to the Promotion List ‘D-I’ with effect from 26.09.2013, in view of the changed circumstances, i.e., the award of punishment of censure on 22.11.2005, when the DE was initiated, since the punishment will relate back to 22.11.2005 for the purpose of promotion as per the Judgment dated 06.08.2010. Secondly, the name of the applicant was not on any Secret List as on 26.09.2013, as his name had already been removed from the Secret List with effect from 22.11.2005 vide Order dated 25.02.2015.

3. To direct the respondents to hold Review DPC to reconsider the case of the applicant for inclusion of his name in Promotion List ‘D-I’ with effect from 27.10.2014, in view of the changed circumstances, i.e., the award of punishment of censure on 22.11.2005, when the DE was initiated, since the punishment will relate back to 22.11.2005 for the purpose of promotion as per the Judgment dated 06.08.2010. Secondly, the name of the applicant not being on any Secret List as on 27.10.2014, since his name has already removed from the Secret List with effect from 22.11.2005 vide Order dated 25.02.2015.

4. To direct the respondents to promote the applicant to the rank of ASI on an ad hoc as well as regular basis with effect from the date his immediate junior was so promoted in pursuance to Order dated 16.12.2013 and/or Order dated 28.10.2014, along with all consequential benefits.

5. To award costs in favour of the applicant and to pass any other order or orders which this Hon’ble Tribunal may deem just and equitable in the facts and circumstances of the case.”

2. Highlighting the facts of the case, learned counsel for the applicant submitted that the present Original Application has been filed challenging the impugned orders dated 16.12.2013, 28.10.2014 and 20.07.2015 whereby the applicant’s case for promotion to the post of ASI was first kept in sealed cover and subsequently he was declared “unfit” solely on account of a prolonged departmental enquiry initiated on 22.11.2005, which ultimately culminated only in a minor penalty of censure dated 21.02.2014.

2.1. Learned counsel for the applicant further submitted that the applicant had already been acquitted in the criminal case and no adverse ACR was ever communicated to him. Further, his name stood removed from the Secret List with retrospective effect from 22.11.2005.

2.2. Learned counsel contended that in view of the law laid down by the High Court of Delhi in W.P.(C) No. 3306/2010 – Union of India & Anr. vs. Dr. A.K. Khare & Anr. dated 06.08.2010, the minor punishment, though prospective, relates back to the date of initiation of the departmental enquiry and therefore could not legally operate to deny the applicant consideration for inclusion in Promotion List ‘D-1’ from 26.09.2013 and 27.10.2014; the said judgment was carried upto the level of Hon’ble Supreme Court of India in SLP (C) CC No. 3932/2011 and was dismissed vide order dated 07.03.2011, and the said decision has also been followed in O.A. No. 4643/2018.

2.3. Learned counsel thus argued that the core issue in the present matter is the arbitrary and illegal denial of promotion despite changed circumstances, non- communication of adverse material, and misapplication of the sealed cover procedure, thereby warranting a review DPC and grant of consequential benefits.

3. Opposing the Original Application, learned counsel for the respondents refuted t