CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE
BENCH, BANGALORE
ORIGINAL
APPLICATION NO.355/2009
DATED
THIS THE DAY OF
..........., 2011
HON'BLE
SMT. LEENA MEHENDALE ….MEMBER(A)
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)
Vs.
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)
O
R D E R
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)
psp.
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