Judgment:
K.S. Gupta, J.
(1) Petitioner has filed this writ petition under Article 226 of the Constitution, inter alia, on the allegations that he joined as Inspector with the respondents some time in 1970 and on 17th July, 1986 was promoted to the post of Superintendent (Technical). Sometime in September, 1991 he was summoned, purportedly as a witness by the Vigilance Department. The concerned vigilance officer ascertained from him about the details, which had led to certain discrepancies in the stock of copper scrap, Pvc cable, Frit tape, Pvc and black tape. It is alleged that on 29th December, 1992, a Departmental Promotion Committee was convened to consider the promotion of Superintendents within the zone of consideration to the post of Assistant Engineer. The petitioner's name was also on the panel. The Departmental Promotion Committee, for the reasons best known to it, did not promote the petitioner despite his having an excellent service record. About 23 officers junior to him were promoted to the posts of Assistant Engineer vide order dated 31st December, 1992. It is prayed that by issuing an appropriate writ the respondents be directed to promote the petitioner w.e.f. 31st December,1992 and the record of the proceedings dated 29th December, 1992 of the Departmental Promotion Committee may be summoned.
(2) In response to show cause notice Desu, respondent No. 1 filed its reply on the affidavit of B.K.Sharma, ALO. It is not denied that the petitioner was appointed as Superintendent (T) on adhoc basis on 18th July, 1986 and was regularised in the cadre on 17th September, 1987. However, it is stated that presently two vigilance cases - one under Reg-8 (Minor Penalty) Vc No.471-472/92 and the other under Reg-7 (Major penalty) Vc No-636-639/92 are pending against the petitioner. In February, 1992 a surprise inspection was conducted by the Vigilance Department and shortage of 3159 kgs. of copper scrap valued at Rs.3.8 lakhs was detected. Petitioner being the in charge of store had failed to exercise proper and effective supervision over the functioning of the store as he allowed the handing over / taking over charge between the Store Keepers without proper verification as required under the rules, which led to large scale shortage of copper scrap in the store causing huge financial loss to DESU. Major penalty proceedings have been initiated against the petitioner in that behalf. Further, for lack of supervision in the functioning of store, which too resulted in large scale shortage of store material, minor penalty proceedings have also been initiated against him. Charge-sheets in both the cases have been served on the petitioner. It is stated that Departmental Promotion Committee was convened on 28th December, 1992 to consider the cases of eligible Superintendents for ad-hoc promotion to the posts of A.E./A.XEN (E/M) in the scale of Rs. 2200.00-4100.00. However, petitioner could not be recommended for promotion due to the pendency of two vigilance cases against him though his juniors were promoted on ad-hoc basis.
(3) In the rejoinder petitioner alleged that no chargesheet was issued or served on him till Dpc met and the respondents are trying to side- track the issue by relying on certain false charges, which were leveled against him subsequent to the date of Departmental Promotion Committee. It is denied that any vigilance case was pending against the petitioner on 28th December, 1992.
(4) Relying on the decision in Union of India etc. v. K.V. Jankiraman etc. : (1991)IILLJ570SC , it was contended by the learned counsel for the petitioner that disciplinary proceedings can be said to have commenced against an employee when the charge memo is issued to him and as admittedly no charge memo was issued to the petitioner in either of the two vigilance cases on 29th December, 1992 when the Departmental Promotion Committee met, name of the petitioner who was within the zone of consideration, could not have been excluded from consideration for promotion to the post of Assistant Engineer.
(5) It is not in dispute that the petitioner was working as Superintendent (T) and was within the zone of consideration for the post of Assistant Engineer on the date when Departmental Promotion Committee met. In para No.4 of the reply on merits filed by respondent No. 1, it is stated that two vigilance cases - one under Reg. 8 (Minor Penalty) Vc No. 471-472/92 and the other under Reg. 7 (Major penalty) Vc No.636-639/92 are presently pending against the petitioner and charge-sheets in both the cases have also been issued to him and because of the pendency of those matters the petitioner was not promoted as Assistant Engineer on ad-hoc basis, though his juniors were promoted on the basis of the recommendations made by the Departmental Promotion Committee. In the rejoinder petitioner's case is that no charge-sheet in either of the two cases was issued to him on the date Departmental Promotion Committee met. In the additional affidavit dated 21st May, 1994, the petitioner stated that both vigilance cases have since concluded and the respondents have imposed minor penalty of censure in both the cases. Copies of the orders dated 23rd March, 1994 and 28th April, 1994 filed Along with the additional affidavit also support petitioner's contention that he was awarded minor penalty of censure in both the vigilance cases. These orders further go to show that the charge memos in Reg. 7 (Major penalty) Vc No. 636-639/92 and Reg. 8 (Minorpenalty) Vc No. 471- 472/92 were issued to the petitioner on 1st January, 1993 and 4th January, 1993 respectively. Both these orders coupled with rejoinder affidavit dated 11th October, 1993 conclusively prove that by 28th December, 1992 when the Departmental Promotion Committee met, no charge memo was issued to the petitioner by the respondents. In view of these facts on the ratio of the decision in Jankiraman's case (supra), the petitioner could not have been denied the promotion and was legally entitled to be considered for promotion to the post of Assistant Engineer by the Departmental Promotion Committee, which met on 28th December, 1992.
(6) Consequently the petition is allowed with costs. The respondents are directed to convene a Departmental Promotion Committee within one month to consider the case of the petitioner for being promoted to the post of Assistant Engineer w.e.f. 31st December, 1992, the date when juniors to him were promoted. Consideration will be on the basis of A.C.Rs. up to 28 December, 1992 only. In case the petitioner is recommended for promotion by the Departmental Promotion Committee, the petitioner will be promoted to the post of Assistant Engineer w.e.f. 31st December, 1992, on the same terms and conditions which were attached to those who were promoted on December 31, 1992, with all consequential benefits, as per rules, within a period of one month from the date of recommendation of the Departmental Promotion Committee.