Judgment:
1. Shri Billeswar Saha working as Superintendent E/M Gr. I Engineering Stores Depot Office of the Chief Engineer, Calcutta Zone, Calcutta has filed this O.A. against his non-promotion as Supdt. EM/Gr. I from the date of his juniors promotion and loss of seniority in the grade and prayed for the following reliefs: "8 (a) Declaration that the applicant is entitled to be promoted as Superintendent E/M Gr. I w.e.f. 25.08.1981 from when his junior Sri Nirmal Chand (MES 3111350) was so promoted and to the inclusion of his name in the All India Seniority list of Superintendent E/M Gr. I on the basis of such date of promotion and that the office order and seniority lists contrary to applicant's such date of promotion and seniority are arbitrary, unlawful and liable to be quashed; (b) Declaration that the respondents are bound by the Tribunal's Division bench judgment dated 02.07.1991 (annexure/A-12) holding that the disciplinary proceeding against the applicant is to be treated as abandoned or such proceeding against the applicant leading to only a minor penalty is a proceeding for minor penalty only in either case of which applicant's promotion as Superintendent E/M Gr. I as on 25.08.1981 or 30.04.1984 or 12.03.1985 or 19.04.1985 or at least from 15.10.1987 is valid and regular without any question of reversion therefrom; (c) Declaration that this Tribunal's judgment dated 26.08.1993 is per incunium to the extent it runs counter to the earlier Division bench judgment of this Tribunal dated 02.07.1991; (d) Order directing the respondents to give promotion to the applicant in the grade of Superintendent E/MGr.I with effect from 25.08.1981 or 30.04,1984 or 12.03.1985 or 19.04.1985 oratleastfrom 15,10.1987 and to placehis name in the All India Seniority list of Superintendent E/M Gr. I accordingly and to give no effect or further effect to order dated 15.10.1985 (Annexure-A/6), dated 25.04.1994 (Annexure-A/16) and dated 27.01.1995 and dated 14.02.1995 (Annexure-A/19)." 2. The fact of the case is that the applicant, a S/C community candidate joined Military Engineering Service as a civilian on the post of Superintendent E/M Gr. II w.e.f. 05.06.1973. The next promotional post is Superintendent E/M Gr. I 2.1. The applicant was served a chargesheet dated 15.10.1979/11.03.1980 under Rule 14 of the CCS(CCA) Rules, 1965. The applicant challenged the charge sheet in the High Court at Calcutta in the Writ Petition No. CR 5078-W/80 which was subsequently transferred to the Tribunal as TA No.1062/1986.
2.2. A panel of 130 candidates was formed by DPC for promotion to the grade of Superintendent E/M Gr. I vide letter dated 26.9.1980 (Annexure-A/1) and the name of the applicant appeared at Sl. No. 129.
The empanelled candidates including the junior to the applicant at Sl.
No. 130 Sri Nirmal Chand were given promotion to the E/M Gr. I. The promotion of the applicant was kept withheld purportedly on account of pendency of the disciplinary proceeding as indicated in Annexure-A/2 dated 23.10.1980. Subsequently more juniors to the applicant were also promoted in 1981 & 1982.
2.3. The applicant made representations against his non-promotion on 20.5.1981 vide Annexure-A/3.
2.4. The applicant was given promotion as Superintendent E/M Gr. I vide order dated 30.4.1984 (Annexure-A/4). Vide order dated 3.6.1985 (Annexure-A/5) the promotion of the applicant was approved w.e.f.
19.04.85. This promotion was given inspite of the fact that disciplinary proceeding against the applicant was pending both when panel was issued and promotion was given.
2.5. The applicant was imposed minor penalty of withholding promotion for two years vide Memo dated 15.10.1985 (Annexure-A/6), though he was charge sheeted under Rule 14 of the CCS (CCA) Rules, 1965 for major penalty.
2.6. The promotion of the applicant as Superintendent E/M Gr. I was regularised and seniority was declared to be effective from 12.3.1985 vide order dated 13.01.1986 enclosed as Annexure-A/7.
2.7. Vide letter dated 13.06.89 enclosed as Annexure-A/8 the respondent No. 3 issued a show cause notice that due to procedural irregularity, the promotion order in respect of the applicant was issued while disciplinary proceedings was pending against him and, therefore, the applicant was asked to show cause within ten days as to why he should not be reverted to the previous post of Superintendent E/M Gr. II. The applicant submitted his reply and without considering the same properly the applicant was reverted to the post of Superintendent E/M Gr. II w.e.f. 06.11.1989 vide order dated 08.11.1989 enclosed as Annexure-A/9.
The order of reversion was untenable and unwarranted specially in view of the fact that his junior Shri Nirmal Chand though was promoted much earlier on the post of Superintendent E/M Gr. I w.e.f. 25.08.1981 but was shown junior at Sl. No. 324 to the applicant who was placed at Sl.
No. 323 of the seniority list of Superintendent E/M Gr. I dated 6/31.07.1992 enclosed as Annexure-A/10.
2.8. The applicant challenged the reversion order before the Tribunal by filing O.A. No. 1126/1989 and was granted interim order of status quo on 14.12.1989 enclosed as Annexure-A/11.
2.9. On 02.07.1991 T.A. No. 1062 of 1986 was disposed of by the Tribunal alongwith T.A. No. 1061/1986 and T.A. No. 1063/1986 by common order (Annexure-A/12). The T.A. 1062/86 was disposed of by treating the disciplinary proceedings against the applicant as abandoned as no punishment order was passed and the applicant was since promoted. The three TAs were filed by three applicants. The T.A. No. 1061/86 and 1063/86 related to other applicants.
2.10. The O.A. No. 1126/1989 was disposed of on 26.08.1993 (Annexure-A/13) by the Tribunal by holding that there is no illegality or infirmity in the reversion order dated 08.11.1989 and vacating the interim order. The Tribunal further directed that respondents should consider the case of promotion of the applicant to the post of Superintendent E/M Gr.1 as the punishment period of withholding promotion has been completed in 1987, provided the applicant is fit & eligible as per rules.
2.11. The applicant submits that the Tribunal orders dated 26.08.1993 in O.A. 1126/ 1989 (Annexure-A/18) and dated 02.07.1991 in T.A. No.1062/86 (Annexure-A/12) runs counter to each other. In the former reversion has been found regular on the ground of pending disciplinary case and in the latter the disciplinary proceeding has been treated abandoned. In view of this contradictory orders his promotion as Superintendent E/M Gr. 1 since 1987 is no longer irregular. The applicant did not appeal against order dated 26.8.93 in O.A.No.1126/89.
2.12. The applicant further stated that the name of the applicant appeared at Sl. No. 323 of the seniority list as on 6/31.7.1992 (Annexure-A/10) whereas the name of his immediate junior Shri Nirmal Chand appeared at Sl. No. 324 of the same list. But his name was deliberately omitted in the seniority list published in 1993 against which the applicant made representation dated 25.6.1993 (Annexure-A/14). The name of the applicant was on the representation included at Sl. No. 344-A as per communication dated 12.10.93 (Annexure-A/15). Again in the seniority list dated 25.4.1994 the name of the applicant was placed at Sl. No. 296 whereas the name of the immediate junior Shri Nirmal Chand at Sl. No. 171. Being aggrieved with this the applicant made representation dated 11.11.1994 vide Annexure-A/16 & A/17. The dispute of seniority could not be resolved.
In the meantime a panel for promotion of Superintendent E/M Gr. I to the grade of Asstt. Engineer E/M against vacancies of 1994 was published by which four juniors of the applicant were included in the panel at Sl. Nos. 45, 46, 47 and 48 vide Annexure-A/18.
2.13. The applicant further submits that the respondents changed the date of promotion as Superintendent E/M Gr.1 by holding review DPC on 15.12.94 and ordering promotion of the applicant w.e.f. 30.1.1995 with financial effect and w.e.f. 7.3.1989 for seniority whereas his immediate junior was promoted w.e.f. 25.8.81 vide Annexure A/19. The change in the dates was done arbitrarily in prejudicial manner.
2.14. Being aggrieved with the repeated change of date of promotion and position in seniority list of Superintendent E/M Gr. I inspite of his representations, the applicant filed the application and prayed for the reliefs cited above.
3. We heard Shri S. Bhattacharjee led by Shri R.K. De, ld. Counsel for the applicant and Ms. U. Sanyal, ld. Counsel for the respondents. We have also gone through the O.A., reply to the O.A. and rejoinder to the reply.
4. The ld. Counsels for the applicant reiterated the fact and submitted that the respondents cannot withhold applicant's promotion as Supdt.
E/M Gr. I on ground of disciplinary proceeding of minor penalty. The applicant was entitled for promotion from the date his immediate junior Shri Nirmal Chand was promoted on 25.8.1981.
4.1. The ld. Counsel further submitted that after order dated 2.7.1991 in T.A. 1062/86 by which the disciplinary proceeding was deemed abandoned, there can be no irregularity in applicant's promotion as Supdt. E/M Gr. I as held in the order dated 26.8.93 in O.A. 1126/ 89.
4.2. The applicant further submitted that the promotion of the applicant should have been made w.e.f. 25.8.81 the date from which his junior was promoted instead of 12.3.85, 7.3.89 and/or 30.1.1995.
4.3. The ld. Counsel further submitted that name of the applicant should have appeared in seniority list of Supdt. E/M Gr. I immediately before the name of his immediate Junior Shri Nimal Chand. But his name has been placed below which is arbitrary, wrongful and in violation of Articles 14 and 16 of the Constitution.
4.4. The ld. Counsel further submitted that the respondents effected the reversion of the applicant from Supdt. E/M Gr. I w.e.f. 30.1.93 (not 4.2.1995) to his prejudice and the applicant apprehends recovery from him unlawfully and unfairly.
4.5. The ld. Counsel in the rejoinder challenged the averment made in the reply that as per Annexure-A/12 it was open to the respondents to complete the departmental enquiry upto appellate level. He submits this order related to T.A. No. 1061/86 & 1063/86.
4.6. The ld. Counsel further denied the averment of the respondents that DPC did not recommend the promotion of the applicant due to disciplinary proceeding. If it was so how the applicant was promoted in 1984 and how the irregularity in giving promotion to the applicant was admitted by the respondents in 1989 when applicant was issued show cause notice for reversion.
4.7. The ld. Counsel further submitted that the disciplinary proceeding ended in minor penalty and, therefore, the same ipso facto has no effect on withholding promotion of the applicant. The respondents have committed grave error in reverting the applicant from the post of Supdt. E/M Gr. I to Gr. II. They should not have held review DPC instead of opened the sealed cover which is the normal procedure adopted in such cases.
4.8. In view of the above the ld. Counsel submitted that review DPC is not called for in this case. Disciplinary Proceeding against the applicant being abandoned, his seniority, in the grade of Supdt. E/M Gr. I is to be above his junior Shri Nirmal Chand and promotion effected from the same date his said junior was so promoted i.e.
25.08.1981. Date of 26.09.1987 contended to be the date of panel in which Nirmal Chand was empanelled or the date of 07.03.1987 from which applicant was given notional seniority are unwarranted and without basis. Respondents are also misconceived in by passing sealed cover procedure for promotion at the time of pendency of disciplinary proceeding.
4.9. The ld. Counsel further submitted that respondents be restrained from recovering difference of pay & allowances due to reversion in view of Apex Court decision to this effect especially Shyam Baku case.
4.10. In view of the above the ld. Counsel submitted that the contentions of the respondents should be rejected and O.A. be allowed with reliefs prayed for.
5. Mrs. Uma Sanyal (Mishra) the ld. Counsel for the respondents contested the application and dealt with the relevant facts supported by records or admitted by the respondents and submitted that applicant has got no cause of action as such application is liable to be dismissed.
5.1. The ld. Counsel submitted that though the disciplinary proceedings against the applicant was abandoned but the same was kept open to the respondents to complete the departmental proceedings upto the appellate stage as per judgment dated 2.7.91 in T.A. No. 1062/86.
5.2. The ld. Counsel further submitted that though the applicant was approved for promotion as Supdt. E/M Gr. I vide panel issued on 26.9.1980, the promotion of the applicant was not effected on account of his involvement in the disciplinary case.
5.3. The ld. Counsel further submitted that the promotion order of the applicant was inadvertently issued during pendency of disciplinary proceeding. It was an unintended mistake which just happened. When the mistake was detected in 1989 a show cause notice was issued to the applicant and on receipt of his reply the applicant was reverted to the post of Supdt. E/M Gr. II order for which could be issued with delay by the respondents. AH these points have been considered by the Hon'ble Tribunal in O.A. 1126/1985 filed by the applicant and disposed of by the Tribunal by order dated 26.8.93.
5.4. The ld. Counsel also submitted that the minor penalty order was justified in terms of relevant rules. It is not mandatory that in Rule 14 of CCS (CCA) Rules always and in every case major penalty should only be imposed. Penalty is awarded on the basis of final report of enquiry officer based on enquiry proceedings according to rules.
5.5. The ld. Counsel further submitted that before issuing reversion order, the applicant was issued a show cause notice according to rules.
The question of ignoring disciplinary proceedings does not arise as the applicant committed certain irregularities.
5.6. The ld. Counsel again submitted that the name of the applicant was provisionally included in seniority list of Supdt. E/M Gr. I subject to outcome of O.A. 1126/1989 which was pending at that time as per Annexure-A to the reply, 5.7. The ld. Counsel further submitted that in reference to judgment of O.A. No. 1126/ 89 a review DPC was conducted in 1994. The applicant was given promotion w.e.f. 30.1.95 and assigned seniority w.e.f. 7.3.89.
5.8. The ld. Counsel also submitted that no DPC was held between 15.5.1987 and 6.3.1989. The applicant was awarded minor penalty of withholding of promotion for two years w.e.f. 15.10.85 which ended on 15.10.87. As no DPC was held between 15.5.87 to 6.3.89, the applicant has been correctly given seniority w.e.f. 7.3.89 by DPC held in 1994.
5.9. The ld. Counsel again submitted that issue of reversion order has been found in order by the Hon'ble Tribunal in its judgment dated 26.8.1993 in O.A. No. 1126/89.
5.10. The ld. Counsel further submitted that immediate junior of the applicant Shri Nirmal Chand was promoted to Supdt. E/M Gr. I in 1981 and as such his name was included correctly in the AISL. The name of the applicant in the provisional seniority list was placed above Shri Nirmal Chand because of the inadvertent mistake which took place in irregular promotion of the applicant during the pendency of disciplinary case. The exact position in seniority list crystalised after the final judgment dated 26.8.93 in O.A.No. 1126/ 1989.
5.11. In view of the above submissions the ld. Counsel very strongly pleaded that application is misconceived and misleading. Therefore, the grounds stated in the application are denied. The ld. Counsel submitted that there is no irregularity in inclusion of the name of the applicant below his junior and the judgments in T.A. No. 1062/86 and O.A. No.1126/89 should be taken into consideration while deciding the present O.A.5.12. The ld. Counsel further submitted that the Govt. dues are suit of difference of pay and allowances due to reversion is unavoidable and would be recovered as per extant rules and the respondents pray the Tribunal not to issue order/interim order on such recovery.
5.13. In view of the above submissions the ld. Counsel pleaded that the application should be dismissed with cost.
6. From the above we find that the undisputed fact of the case is that the applicant was appointed as Superintendent E/M Gr. II w.e.f.
5.6.1973. He was issued Rule 14 charge sheet dated 15,10.79/14.3.80. A panel of 130 official including the applicant at Sl. No. 129 of the panel was issued on 26.9.1980 for promotion to the post of Supdt. E/M Gr. I. All the candidates on the panel as well as other juniors to the applicant were promoted except the applicant. The applicant challenged the promotion by filing Writ No. CR 5078-W/80 before the Hon'ble High Court, Calcutta which was later on transferred to CAT Calcutta as TA No. 1062/86. The applicant was promoted as Supdt. E/M Gr. I vide order dated 30.4.1984 and promotion was approved w.e.f, 19.4.85 and regularised w.e.f. 12.3.85. The applicant was awarded punishment of withholding of promotion for two years vide Memo dated 15.10.85 in the Rule 14 charge sheet. Show cause notice for reversion to the post of Supdt. E/M against the irregular promotion of the applicant to the post of Supdt. E/M Gr. I during the pendency of the disciplinary proceeding and currency of punishment was issued by the respondents on 13.6.89 and the applicant was reverted to the post of Supdt. E/M Gr. II w.e.f.
1.11.89. The applicant challenged the reversion order by filing O.A.No. 1126/1989 in which he was granted interim order of status quo ante on 14.12.89. The T.A. No. 1062/86 was disposed of by a common order dated 2.7.91 which passed orders in two parts, the first part about T.A. No. 1062/86 and the second part about T.A. No. 1061/86 and 1063/86. In the order relating to T.A. No. 1062/86 the disciplinary proceeding was treated abandoned on the submissions of the ld. Counsel of the applicant. O.A. No. 1126/89 was disposed of on 26.8.93 by holding that there is no illegality or infirmity in the order of reversion and vacating the interim order and directing the respondents to consider the case of promotion of the applicant to the post of Supdt. E/M Gr. I again and pass appropriate orders keeping in view the facts that many juniors of the applicant have already been promoted and the minor penalty of withholding of promotion for two years would have completed in 1987 if the said order would have been given effect in 1985.
7.1. The applicant has pleaded that the orders of the Tribunal dated 2.7.91 in T.A. No. 1062/86 and dated 26.8.93 in O.A. No. 1126/89 are contradictory to each other. We do not find any contradiction as alleged. The order dated 2.7.91 was passed by the Tribunal on the submissions of the id. Counsel of the applicant who submitted that the applicant has since been given promotion and no punishment order in the disciplinary case has been passed. As against this submission the fact is that the punishment order was passed on 15.10.85 and the order of reversion w.e.f. 1.11.89 was already issued by the respondents. This order attained finality as no appeal or reversion application was filed. So far as order dated 26.8.93 is concerned that also attained finality as neither reversion nor appeal was filed by the applicant against the same. In view of this we cannot go back to issues which have already been decided in these applications and become final.
7.2. The applicant submitted that the name of the applicant appeared above the name of his immediate junior in the panel list and again in the seniority list dated 6/31.7.92 but the same was deleted in the seniority list of 1993. The applicant made representation against the deletion on 25.6.93 which was considered and his name was subsequently included vide communication dated 12.10.93. Again in the seniority list dated 25.4.94, the name of the immediate junior appeared at Sl. No. 171 whereas of the applicant at Sl. No. 296. Thus the seniority of the applicant has been changing year after year. No doubt there has been change but the matter relating to promotion of the applicant to the post of Supdt. E/M Gr. I was finally settled by order dated 26.8.93 in O.A. No. 1126/89 according to which the reversion of the applicant to the post of Supdt. E/M Gr. II was found regular. Therefore, the seniority list issued after implementation of this order showed the position of the applicant at the correct place. The applicant as Supdt.
E/M Gr. II cannot be senior to Supdt. E/M Gr. I which is a promotion post from Gr. II. We thus do not find any irregularity in the seniority list dated 25.4.94.
7.3. The submission of the respondents that the review DPC about the applicant was held on 15.12.94 by which the applicant was promoted w.e.f. 30.1.95 and financial benefit was allowed w.e.f 7.3.89 as against this promotion the junior of the applicant was ordered w.e.f.
25.8.81. The date of effect of financial benefit w.e.f. 7.3.89 was allowed by the DPC dated 15.12.94 because no DPC was held by the respondents between 1987 to 6.3.89. We find that inspite of pending charge sheet the applicant was empanelled on 26.9.80 for promotion to the post of Supdt. E/M Gr. I and was promoted to the post of Supdt. E/M Gr. I vide order dated 30.4.84. He was given show cause notice for reversion on 13.6.89 when the penalty was awarded on 15.10.85 and finally reverted w.e.f. 1.11.89. The respondents have taken the plea of mistake for promotion of the applicant in their reply. We find that procedure of sealed cover was not followed in the case at the time of preparing panel. If it would have been done, the name of the applicant would not have appeared in the panel and there would not have been promotion of the applicant in any case before the final order in the disciplinary case followed by opening of the sealed cover or holding fresh DPC by the competent authority. Further the respondents slept over the matter for about four years even after final order in the disciplinary case. The above lapses, laches and negligence on the part of the respondent authorities is impossible to defend and the same speaks of most adversely about of the working of the offices of the respondents. We are not at all satisfied with such working of any office and would like the Ministry of Defence to take due and suitable notice to avoid such recurrence.
7.4. The argument of the respondents that since no DPC was held between 1987 and 6.2.89 and the same could be held on 15.12.94, the case of promotion of applicant could not be considered earlier than in the DPC of 15.12.94, according to which the applicant was promoted w.e.f.
30.1.95 and financial benefit could be given w.e.f. 7.3.89. This lame argument and baseless plea convince us the least because firstly the sealed cover procedure was not adopted, secondly if the same was adopted a post would have been kept vacant, thirdly that applicant was empanelled and promoted on the post of Supdt. E/M Gr. 1 during the pendency of disciplinary case and currency of punishment, fourthly even after punishment dated 15.10.85 the respondents slept over and failed to take action till 13.6.89, fifthly the respondents delayed the action and thus the period of punishment of withholding of promotion for two years expired on 15.10.87, sixthly the direction of the Tribunal in judgment dated 26.8.93 in O.A. No. 1126/89 was attempted to be ignored, seventhly the justification for passing two orders as a result of review DPC one for promotion and the other for financial benefit has not been given and lastly reasons, circumstances and justification for sleeping over the matter of promotion of the applicant to the post of Supdt. E/M Gr. I from the date of empanelment in 1980 to the date of issue of show cause notice for reversion have not been spelt over except as a mistake.
7.5. The plea of the respondents that orders in T. A. No. 1061/86 and 1063/86 kept open the consideration of the disciplinary case against the applicant is not factually correct and definitely misleading. The common order dated 2.7.91 is in two separate and distinct parts. The one relates to T.A. No. 1062/86 and the other to T.A. No. 1061/86 & 1065/86. In fact the order to continue disciplinary proceeding till appeal stage relates to T.A. No. 1061/86 and 1063/86 only in which the applicant does not appear to be party.
7.6. We do not agree with the submissions of the ld. Counsel for the respondents that difference of pay & allowance as a result of reversion of the applicant will have to be recovered from the applicant on the ground that the applicant was promoted by mistake to the post of Supdt.
E/M Gr. I by competent authority. He continued to discharge the duties and responsibilities of the post and, therefore, is entitled for the pay of the post till he was ordered to be reverted w.e.f. 1.11.89. The applicant was granted interim order against reversion order by the Tribunal which finalised the case by order dated 26.8.93. In this order the Tribunal directed the respondents to consider the promotion of the applicant after expiry of two years period of punishment on 15.10.87.
Instead this promotion was given w.e.f, 30.1.95 and financial benefit w.e.f. 7.3.89. If the respondents could go back upto 7.3.89 for grant of financial benefits in the review DPC nothing stopped or obstructed them logo back to 15.10.87, the date on which the period of currency of punishment expired, for all promotional benefits including seniority and financial benefits. In that case there would have been no case for reversion of the applicant and psychological satisfaction of the respondents for alleged recovery of difference of pay and allowances.
We, therefore, do not find justification for recovery of difference of pay and allowances if there is any, from the applicant. If the respondents are very keen for the same, they should fix responsibility on the erring officers and recover the amount with compound interest, if they so desire from them.
8. Taking in view the above discussions and observations we partly allow this application with following orders:- 8.1. The issues already decided in the order dated 2.7.91 in T. A. No.1061/86, 1062/ 86 and 1063/86 and order dated 26.8.93 in O. A. No.1126/89 have already reached finality and the same cannot be reopened.
8.2. We set aside the order of promotion with effect from 30.1.95 and financial benefits w.e.f. 7.3.89.
8.3. The promotional benefits including seniority and financial benefits should be again considered to be given from one and the same date which would be a date on or after 15.10.87, the date on which currency of the punishment ended within a period of 12 weeks from the date of communication of the order.
8.4. No recovery of difference of pay and allowances, if any, should be made from the applicant as a result of above promotion.
8.5. The applicant should be paid cost of Rs. 5000/- by the respondents within four weeks from the date of communication of this order.
8.6. The Ministry may consider taking suitable notice as per observation in para 7.5 and 7.6 above.