Dr. Ramesh Chandra Panda, Member (A)
1. Shri D.K. Vatsa, the applicant herein, is aggrieved by the action of the respondents, Indian Tourism Development Corporation (ITDC) by putting the recommendations of the Departmental Promotion Committee (DPC) for his promotion to the post of Sr. Manager (EandM) in sealed cover. Assailing the said action of the ITDC, he has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 with the following prayers:-
“(a) Declare that the convening of the DPC on 29.11.2010 and the decision of the DPC to keep the fate of the promotion of the applicant to the post of Senior Manager (EandM) in sealed cover is absolutely illegal, arbitrary and against all canons of justice and fair play.
(b) Declare that the decision of the Respondents ITDC to convene a fresh DPC on20.02.2009 and then again on another fresh DPC on 16.04.2009 and then not declaring the results of the said DPCs was illegal, arbitrary and dehors the law.
(c) Declare that the promotion of the applicant to the post of Senior Manager (EandM) was to be governed on the basis of the recommendations of the DPC convened on 23.08.2006 and which was kept in sealed cover.
(d) Direct the Respondents ITDC to open the sealed cover as regards the recommendations of the DPC held on23.08.2006 in respect of the promotion of the applicant to the post of Senior Manager (EandM) and if found fit promote the applicant to the post of Senior Manager (EandM) w.e.f. the date his juniors were promoted.”
2. We may refer to the facts of the case briefly which led the applicant to file the present OA. The applicant was appointed as Assistant Manager (EandM) with the ITDC in 1984 and was promoted to the post of Manager (EandM) on 10.6.1993. The next higher post to which the applicant is eligible for promotion is Sr. Manager (EandM). However, he was put in officiating capacity in the post of Sr. Manager (EandM) w.e.f. 17.3.2003 instead of getting regularly promoted, as he was fit to be considered for regular promotion to the said post on 09.06.1996 having completed three years of regular service in the feeder category. The applicant was issued a charge sheet for major penalty on 25.9.2005. It is the case of the applicant that official note revealed that he was exonerated by the Competent Disciplinary Authority on 03.05.2006. However, the said decision of the Competent Authority was not officially communicated to him. In the meantime, the recommendation of the Departmental Promotion Committee held on 23.8.2006 in respect of the applicant was put in sealed cover. Vide order dated 31.7.2007, the applicant was imposed the punishment of ‘Censure’ to come into force w.e.f. 05.12.2006. It is the case of the applicant that major penalty proceedings though initiated against him, no proper inquiry was held nor there was any oral inquiry of the applicant but, the said major penalty proceedings were converted into a minor penalty by the Competent Authority. Being aggrieved by the said action of the Disciplinary Authority, he submitted his appeal on 20.11.2007 to the Appellate Authority who dismissed the same. Thereafter he submitted the Review Petition which was against the orders of the Disciplinary and Appellate Authorities. On consideration of the Review Petition filed by him the effective date from which the penalty of Censure would come into force was changed from 05.12.2006 to 31.7.2007. His grievance is that instead of opening his sealed cover, respondents convened the DPC on 20.02.2009 where his promotion to the post of Sr. Manager (EandM) was considered and later on one more DPC was held on 16.4.2009 but the result of both the DPCs have not yet been declared. On the contrary, one more major penalty charge sheet was issued against him on 12.11.2010. It is the case of the applicant that a fresh DPC was convened on 29.11.2010 and the recommendation of the DPC on the applicant was kept in the sealed cover. It is in the above background of this frequent sealed cover procedure having been adopted by the ITDC against the applicant for his promotion to the post of Sr. Manager (EandM), he had no other option but to approach this Tribunal in the instant OA.
3. Highlighting the background of the applicant’s grievance in not getting promotion to the post of Sr. Manager (EandM) right from the year when he was eligible to be promoted and though the DPC has been held four times for the said post and the applicant has been ignored by putting his case twice in the sealed cover, Shri L.K. Singh, learned counsel appearing on behalf of the applicant would contend that the action of the ITDC reflects the administrative high handedness . It is his submission that as on 28.8.2006 when the DPC was convened, the applicant was not facing any disciplinary case nor he was proceeded in criminal cases. On the other hand, as per the order passed by the Competent Authority on 03.05.2006, he was exonerated, but subsequently the major penalty proceeding was converted to be minor penalty and he was imposed punishment of ‘Censure’. Shri Singh’s contention is that the nature of punishment being ‘Censure’ which has only a limited period of effect, the applicant’s case put in the sealed cover should have been opened in time and if he could be found fit he should be promoted. The respondents, conducted the first DPC on 23.08.2006. Subsequently, one more DPC was held but that was of no consequence to the applicant as the major penalty charge sheet was pending against him and the recommendation of the DPC was again put in the sealed cover. Taking into account that only ‘Censure’ was imposed on him, the sealed cover should have been opened and if he was found fit, he should have been promoted to the next higher rank. The contention of the counsel was that had the next DPC decided the promotion for the said post when it met on 17.4.2009 and 22.09.2010, the applicant would have been found eligible and promoted, as at that time he was not facing any disciplinary case or criminal charges. But by the time DPC met on 29.11.2010 for the purpose, he was again facing charges in the departmental proceedings. He, therefore, urges that the sealed cover of the applicant should be directed to be opened and if he is found suitable he may be promoted w.e.f. the date his juniors were promoted.
4. After receipt of the notice from the Tribunal, the respondents have entered appearance and filed reply affidavit on 24.5.2011 through Shri Ujjawal K. Jha, learned counsel. He raised a preliminary objection indicating that applicant had not come to the Tribunal with clean hands. The applicant placed his reliance on the internal note of the respondents which was not the final order. The concerned authorities make their notes in the file but once final orders are passed, the same needs to be referred to. Therefore, the learned counsel submits that applicant’s contention that he was exonerated by the Competent Authority in the note sheet was not the decision, as the applicant was punished with ‘Censure’. The learned counsel would contend that after proper consultation with CVC, the applicant was ultimately imposed the penalty of ‘Censure’ vide order dated 07.12.2006. The said pending charge sheet stood against the applicant in getting his regular promotion as Sr. Manager (EandM) and the sealed cover procedure was adopted by the DPC. He submits that there is no need to follow mandatory enquiry procedure when minor penalty is being imposed on the delinquent officer.
5. Shri Jha submits that though the applicant was eligible after fulfilling minimum regular qualifying service of three years in the feeder post, that does not give him right to claim the promotion to the next higher post. The DPCs are held depending upon the availability of vacancies and the selection/promotion takes place on the basis of the ITDC Rules. The applicant was granted officiating promotion as Sr. Manager (EandM) along with other Engineers on a temporary arrangement basis and the Office Order dated 17.3.2003 specifically mentions that officiating pay shall not confer on the applicant any right for claiming regular promotion to the higher post. He submits that the first DPC for the post of Sr. Manager was held on 28.3.2006, at which time the charge sheet against the applicant was pending. Therefore, his case for promotion and the recommendation of the DPC was placed in the sealed cover. As the said charge sheet culminated with punishment, following the extant instructions, the sealed cover was not opened. The next DPC was scheduled to be held on 20.02.2009 but was postponed and was held on 17.4.2009 but no minutes were drawn as there was difference of opinion among the Members of DPC with reference to the eligibility of officers. Though the DPC was reconvened on 22.09.2010 but remained inconclusive. However, the DPC was ultimately convened on 21.11.2010 to fill up nine posts of Sr. Manager (EandM) but by that time the applicant has been issued a fresh charge sheet on 12.11.2010. Therefore, the recommendation of the DPC was put in the sealed cover. He, therefore, submits that applicant on both the occasions has to face the sealed cover procedure for his promotion as the charges were pending against him. In the background of the above contention Shri Ujjwal K. Jha submits that the OA is liable to be dismissed.
6. Having heard the contentions of the rival parties, we have perused the pleadings. The controversy for consideration is whether the ITDC has appropriately followed the procedure to put the recommendations of the DPCs for promotion of the applicant to the post of Sr. Manager (EandM) in the sealed cover?
7. Before we dwell on the relief(s) claimed by the applicant, it must be noted that the applicant has not challenged in the present OA the penalty of ‘Censure’ imposed on him as a result of the major penalty disciplinary case. Further, between 2006 and 2010, there were two DPCs held on 23.8.2006 and 29.11.2010 to consider eligible candidates including the applicant for the post of Sr. Manager (EandM). We are considering the issues raised in the OA only on the sealed cover procedure adopted by DPC in his case in both occasions.
8. Admitted facts are that there were two DPCs to consider the promotion of the applicant to the post of Sr. Manager (EandM). The first DPC was held on 28.03.2006. The DPC adopted the sealed cover procedure as the major penalty charge sheet was pending. The major penalty charge sheet pending against the applicant ultimately resulted in the imposition of the ‘Censure’ on the applicant. As per the extant instructions, Censure is a punishment. The applicant having suffered a punishment in disciplinary case on the basis of which the recommendations of DPC was put in a sealed cover, the sealed cover could not have been opened. We do not find any flaw either procedural or legal in the above action of the respondents.
9. The applicant got the second opportunity to get himself regularly promoted as Sr. Manager (EandM) for which the DPC was held on 21.11.2010 but only few days before the DPC met, the applicant was issued one more major penalty charge sheet on 12.11.2010. The applicant’s case for promotion to the post of Sr. Manager (EandM) has, therefore, been considered by DPC but its recommendations have been put in the sealed cover.
10. It is trite law that when an employee is facing a disciplinary case and charges have been framed in a departmental proceeding or a criminal prosecution is pending in the Trial Court or the employee is under suspension, the DPC has to place its recommendation for the promotion of the said employee to the next higher post only in a sealed cover. It is further well settled position in law that if the employee does not get exonerated in the disciplinary case, the sealed cover would continue to remain as such and would not be opened. In this regard, we place our reliance on the judgment of Hon’ble Supreme Court in Union of India and Ors. Versus K.V. Janakiraman [AIR 1991-SC-2010]. The relevant portion of the judgment reads as follows:-
“17. In view of the aforesaid peculiar facts of the present case, the DPC which met in July 1986 was justified -in resorting to the sealed cover procedure, notwithstanding the fact that the charge-sheet in the departmental proceedings was issued in August/ December, 1987. The Tribunal was, therefore, not justified in mechanically applying the decision of the Full Bench to the facts of the present case and also in directing all benefits to be given to the employees including payment of arrears of salary. We are of the view that even if the results in the sealed cover entitle the employees to promotion from the date their immediate juniors were promoted and they are, therefore, so promoted and given notional benefits of seniority etc., the employees in no case should be given any arrears of salary. The denial of the benefit of salary will, of course, be in addition to the penalty, if any, imposed on the employees at the end of the disciplinary proceedings. We, therefore, allow these appeals as above with no order as to costs.”
11. The Hon’ble Apex Court has also followed the above dicta of K.V. Janakiraman’s case (supra), in Union of India and Ors. Versus Sangram Keshari Nayak [2007-6-SCC-704] and Coal India Ltd. and Ors. Versus Saroj Kumar Mishra [2007-5-SCALE-724]. In a similar case, the Hon’ble Supreme Court of India in the Union of India and Ors. Versus Mihir Kumar Bandopadhyay and Ors. [2009-16-SCC-329] having referred to its earlier judgment in K.V. Janakiraman’s case (supra) quashed the orders of the Tribunal which ordered to open the sealed cover in case of the respondent and held that question of opening the sealed cover would not arise in view of the facts that the applicant was suffering from a penalty of ‘Censure’ and since he was facing the Charge Memo, the sealed cover procedure was the correct method adopted by the DPC and Competent Authority.
12. The applicant has raised one more issue had the DPC been held and considered his case for promotion to the post of Sr. Manager (EandM) on 17.04.2009 and 22.09.2010 when the DPC meetings remained inconclusive for one reason or other, he would have been promoted as he was not facing any departmental charges and no impediment for his promotion was existing then. We understand his point. He must have been very anxious as he missed his promotion in the earlier opportunity. But, the above contention is rather presumptive. The DPC meetings take place on many dates and if the particulars placed before the DPC are inadequate, such meetings are bound to be postponed. Such meetings of the DPC which remained indecisive and inconclusive would not be procedurally admissible to take any cognizance. We, therefore, do not find any merit worth of our further consideration.
13. Having considered the totality of facts and circumstances of the case and guided by the dicta laid down by the Hon’ble Supreme Court in the matter of sealed cover procedure to be adopted for the employees seeking the promotion, we are of the considered opinion that applicant’s case is not fit to be considered for allowing the sealed covers adopted by two Departmental Promotion Committees to be opened. Therefore, the applicant has not convinced us to interfere in the matter.
14. Resultantly, finding no merits in the applicant’s case, the Original Application is dismissed. There will, however, be no order as to costs.