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CASE NO.:

Appeal (civil) 2020 of 2007

PETITIONER:

Union of India & Ors

RESPONDENT:

A.N. Mohanan

DATE OF JUDGMENT: 18/04/2007

BENCH:

Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT:

J U D G M E N T

CIVIL APPEAL NO. 2020 2007

(Arising out of SLP (C) No. 26408 of 2004)

Dr. ARIJIT PASAYAT, J.

Leave granted.

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.

The controversy lies within a very narrow compass.

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.

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.

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

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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.

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.

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 salar