Friday, November 2, 2012

OA no 355 / 2009 on ??? -2011



DATED THIS THE                 DAY OF ..........., 2011


HON'BLE SHRI V. AJAY KUMAR             ..          MEMBER (J)

K. Radhakrishna,
S/o Poovaiah Naik,
Aged 47 years, working as
Superintendent, RMS 'Q' Division,
Bangalore – 560 026.                                  ...                                 Applicant

(By Advocate Shri A.R. Holla)


1. Union of India,
   By Secretary,
   Department of Posts,
   Dak Bhavan,
   New Delhi – 110 001.

2. Director General of Posts,
   Dak Bhavan,
   New Delhi – 110 001.

3. Chief Post Master General,
   Karnataka Circle,
   Bangalore – 560 001.

4. Union Public Service Commission
   Dholpur House,
   New Delhi – 110 069,
   By its Chairman.                                       ...                                 Respondents

(By Advocates Shri N.Y. Guruprakash, Addl. Central Govt. Stg. Counsel
for 1 to 3 and Shri V.N. Holla, Addl. Central Govt. Stg. Counsel for R-4)


Hon'ble Smt. Leena Mehendale, Member (A) :

            This OA is filed on 27.7.2009 under Section 19 of Administrative Tribunals Act, 1985.
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2.         The matter arises out of non-consideration for promotion by the DPC.  The applicant joined Postal department on 08-12-1983 as Postal Assistant and got his promotion first as Inspector of Posts on 26-08-1993 and then as Superintendent of Post Offices on 14-07-2003.  Thereafter, he became eligible for promotion to the cadre of Group 'A' JTS  (Junior Time Scale).  His contention is that he became due for promotion on 25-02-2008 on which date the DPC met.  In the meantime, a draft seniority list of Postal Service Group 'B' officers which is the feeder cadre for Group 'A' JTS as on 01-04-2006 was published on 24-04-2006 as seen at Annexure-A/1.  It called for representations latest by 15-05-2006, towards which he submitted his representation on 08-05-2006 as seen at Annexure-A/2.  A perusal of Annexure-A/2 shows that the name of the applicant was at Sl. No.317 and his caste category had remained omitted.  He therefore, represented for making this major correction viz., to add his caste category as SC along with a few other corrections also.  His date of joining also needed to be corrected as 14-07-2003.
3.         It is claimed that the applicant neither received any response to his representation nor got to know about the final seniority list.  The status thus continued till the DPC met for promotion to Group 'A' JTS on 22/25-02-2008.  The applicant being SC, his name should have been in the zone of consideration, but, was omitted by the DPC which mistakenly did not view him against the SC category with the result that his juniors belonging to SC category got selected and received the promotion order dated 04-04-2008 as seen at Annexure-A/3.  Unfortunately, for the applicant he was given a charge memo dated 22-05-2008 containing 5 charges Annexure-A/4).  On the other
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hand, he was able to obtain information under RTI Act only on 11-12-2008 that the reason for not considering him along with his junior SC officer on 22/25-02-2008 was that the information about his belonging to SC category was not available before the DPC and therefore, the DPC did not know him to be within the zone of consideration.  He therefore, made another application dated 03-01-2009 to arrange for a review DPC meeting to consider his case for promotion to Group 'A' JTS.  In response, the respondents did arrange for a DPC meeting on 21-04-2009 in which hs case was considered but the result was placed in a sealed cover in view of the pending disciplinary proceedings.  This is amply clear from the minutes of the Review DPC meeting dated 21-04-2009 which is produced at Annexure-A/7.

4.         Thus, it is claimed that a very short but crucial point in favour of the applicant is that he being in the SC category had become eligible for promotion in February, 2008 when the DPC met.  For no fault of his and squarely for the lapse of the office who failed to correct the provisional seniority list at Annexure-A/1 and who failed to correctly mention his name under SC category, his name remained to be included by the DPC in the zone of consideration.  The disciplinary proceedings initiated against him on 22-05-2008 does not come in his way since the DPC meeting was held on 25-02-2008.  The purpose of the Review DPC held on 21-04-2009 was to consider the applicant along with other similarly situated persons, so that he does not suffer from the mistake committed by the office.  Hence, the decision of the DPC taken on 21-04-2009 to put his result under a sealed cover is not in accordance with law and it is unfair and unjustified.

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5.         Hence, the relief prayed is for promoting the applicant to the cadre of Group 'A' JTS on the same date as his junior in the SC category was promoted and give him all the consequential benefits.

6.         The respondents who have duly filed their reply as well as argued through their standing counsel mainly harp upon a point that the charge sheet given to the applicant on 22-05-2008 has a vigilance angle and the applicant was not clear from the vigilance on the date of Review DPC.  The respondents have relied upon the decision of the Hon'ble Supreme Court in Civil Appeal No.689/2007 at Annexure-R/2 which is communicated to all the Ministries/Departments of Govt. of India by the DoP&T.   They have also relied upon Swamy's compilation on Establishment and Administration (Annexure-R/1) on the subject "Promotions", which is as under:
"Procedure to be followed by DPC in respect of Government servants under cloud:

11.1)     At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-
(i)            Government servants under suspension,
(ii)           Government servants in respect of whom a charge-sheet has          been issued and the disciplinary proceedings are pending, and
(iii)         Government servants in respect of whom prosecution for a   criminal charge is pending.

7.            In response to the above contention of the respondents, the learned counsel for the applicant has relied on the same Swamy's Compilation on Establishment and Administration on the same subject "Promotion" which is as under:
"Sealed cover procedure not applicable to review DPC:  A question whether the sealed cover procedure is to befollowed by a Review DPC has been under consideration of the Department in the light of the
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decision of the Central Administrative Tribunal in certain cases.  The matter has been considered in consultation  with the Ministry of Law and it has been decided that the sealed cover procedure as contained in the OM dated 14-9-1992 cannot be resorted to by the Review DPC if no departmental proeedings or criminal prosecution was pending against the Government servant concerned or he/she was not under suspension at the time of meeting of the original DPC or before promotion of his junior on the basis of the recommendations of the original DPC."

8.         Although, both the citations stand on the firm ground, the second is applicable to the present case in which the decision to reject/delay his promotion by keeping it in sealed cover by DPC came to be taken only because the 1st DPC had erred in not holding him within the zone of consideration.  For this mistake, the office is solely to blame in view of the fact that the applicant had submitted his representation for carrying out necessary corrections to the provisional list as early as 08-05-2006, but was ignored by the office.

9.         We have therefore, no hestiation to allow the OA.  It is directed that the Respondents will look at the remarks of the DPC now kept in the sealed cover as they must examine his case only with respect to the situation pertaining to the date of 1st DPC viz., 25-2-2008.  Any mention in the sealed cover remark which makes a mention to the charge memo must be ignored and if there is no other ground not to consider him as eligible on 25-2-2008, then, he must be given the proper promotion order to Group 'A' JTS with effect from the same date when his immediate junior started officiating in the Grade 'A'.  The respondents will pass a speaking note on the minutes of the DPC and if applicant is held eligible, then issue the promotion order within three months
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from the date of receipt of a copy of this order and pay all the consequential benefits within the next two months thereafter.  No order as to costs.

                        (V. AJAY KUMAR)                            (LEENA MEHENDALE)
                            MEMBER (J)                                         MEMBER (A)


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