JUDGMENT
S.L. Jain, Member (J)
1. This is an application under Section 19 of the Administrative Tribunals Act, 1985 for issue a mandatory order directing the respondents to consider the case of the applicant for promotion to the post of Assistant Commissioner of Customs, Group-‘A’ in the light of the direction/guidelines issued by the Government of India, Ministry of Personnel, Public Grievances and Pension vide Memorandum dated 14,9.1992 by holding a review Departmental Promotion Committee held two years after January 1990 and based on the said review to order the promotion of the applicant as Assistant Commissioner of Customs, Group-‘A’ retrospectively from 1992 on which the applicant became eligible for promotion as per guidelines contained in the said Memorandum dated 14.9.1992.
2. On perusal of para 1 of the O.A., we find that applicant has challenged Office Order No. 16/90, 225/92, 21/93, 185/94, 225/94 and 34/96 dated 17.1.1990, 3.9.1992, 28.1.1993, 20.9.1994, 19.10.1995 and 20.2.1996 respectively by which Appraisers Junior to the applicant have been promoted to the post of Assistant Commissioner of Customs ignoring the applicant.
3. The applicant has filed this O.A. on 27.8.1996. In para 3 of the O.A. he stated that the application is within the limitation period prescribed under Section 21 of the Administrative Tribunals Act, 1985. On perusal of the pleadings, we find that the applicant has represented vide his representation dated 15.11.1995 for his non consideration for ad hoc promotion. The said representation is not replied by the respondents. As such, keeping in View the period of limitation wherein the respondents failed to reply the representation of the applicant, a cause of action accrues in favour of the applicant after six months and he can file O.A. within one year thereafter. Only the said representation dated 15.11.1995 which is in respect of consideration whereby in view of the Order No. 225/94 dated 19.10.1995, the Juniors to the applicant have been promoted.
4. Rest of the grievances of the applicant in respect of order No. 16/90, 225/92, 21/93, 185/94 dated 17.1.1990, 3.9.1992, 28.1.1993, 20.9.1994 are barred by limitation. As such, we proceed to ignore the same, consider only the grievance in respect of Office Order No. 225/94 dated 19.10.1995.
5. Regarding Office Order No. 34/96 dated 20.2.1996, we do not find that the applicant has preferred any representation in respect of the same. As such, the departmental remedies, the applicant failed to exhaust. Therefore, it deserves to be ignored. However, we are considering the same as the facts and law involved is one and same.
6. The applicant was selected and appointed as Examiner on 13.8.1970 and thereafter promoted to Group ‘B’ post as Appraiser w.e.f. 25.4.1979. While he was working as Appraiser during September, 1989, thedepartment had started investigation into an alleged irregularity in processing Shipping Bill No. 078112 dated 8.9.1989. The investigation was later on taken over by C.B.I. Department. The applicant was arrested on 26.10.1989 by C.B.I., the matter was reported to applicant’s office by C.B.I, and the applicant was placed under suspension vide Order No. S-9/13/89-Vig. dated 8.11.1989 which was revoked by the competent authority on 18.12.1990. In view of C.B.I.’s report, a Memorandum No. S-19/13/89 dated 24.2.1992 was served on the applicant by the Department for contemplated enquiry in connection with the charges levelled by the CBI in their report. The C.B.I, had already registered the case against the applicant. Charge-sheet bearing special case No. 121 93 is filed in the Sessions Court, Greater Bombay and the applicant has taken steps by an application in the High Court for quashing the charge-sheet vide his application No. 234/ 96. The decision thereon is awaited.
7. The C.B.I. Officer raided the applicant’s house for alleged possession of disproportionate assets and reported the matter to the department on the basis of which second Memorandum bearing No. S-9/10/90/Vig. dated 25.4.1994 was issued by the respondents for contemplated enquiry. He further requested the Collector of Customs to stay the departmental proceedings in view of the case processed by CBI vide his representation dated 11.5.1994. However, the Collector of Customs vide his letter dated 13.6.1994 refused to grant his request and insisted that departmental enquiry will be completed as per existing Rules. However, the respondents have not finalised the departmental proceedings as yet.
8. The CBI has registered a case under RC No. (A)/93-Bom on 11.9.1993 against the applicant in respect of M/s. Indo Java & Co. were exporting 1000 cartons of HUB Axle in the name of B.B. Axle through their CHA M/s. Damani Shipping Pvt. Ltd. Sanction for launching prosecution was accorded by the Commissioner of Customs, Mumbai on 20.4.1995 and a charge-sheet was filed by the C.B.I. vide Special Case No. 24/95 in the competent Court of jurisdiction.
9. Vide order dated 17.2.1992 passed by the Commissioner of Customs, the applicant has been retired from service with immediate effect.
10. In respect of allegations of M/s. New India Impex, the respondents have received from the applicant a copy of the judgment on Misc. Application No. 1173/96 passed by Special Judge in Special Case No. 12/93 dated 14.1.1997. The judgment is under further examination of the C.B.I.
11. Perusal of the pleadings of the parties which are not in dispute, makes it clear that till 17.2.1997 two criminal cases and one departmental proceedings were pending against the applicant since more than two years.
12. The learned Counsel for the applicant relied on O.M. No. 22011/4/91-Estt. (A) dated 14.9.1992 issued by Ministry of Personnel, Public Grievance and Pension (Department of Personnel and Training), a copy of which was forwarded to all Ministries and Departments of the Government of India. Para 5 and 5 (i) of the said O.M. are relevant for our consideration which are extracted below:-
“5. In spite of the six monthly review referred to in para 4 above, there may be some cases, where the disciplinary cases/criminal prosecution against the Government servant is not concluded even after the expiry of two years from the date of the meeting of the first DPC, which kept its findings in respect of the Government servant in a sealed cover. In such a situation the appointing authority may review the case of the Government servant, provided he is not under suspension, to consider the occurability of giving him ad hoc promotion keeping in view the following aspects:-
(a) Whether the promotion of the officer will be against public interest. (b) Whether the charges are grave enough to warrant continued denial of promotion. (c) Whether there is any likelihood of the case coming to a conclusion in the near future. (d) Whether the delay in the finalisation of proceedings, departmental or in a Court of law, is not directly or indirectly attributable to the Government servant concerned. (e) Whether there is any likelihood of misuse of official position when the Government servant may occupy after ad hoc promotion, which may adversely affect the conduct of the departmental case/criminal prosecution. The appointing authority should also be consult the Central Bureau of Investigation and take their view into account where the departmental proceedings or criminal prosecution arose out of the investigations conducted by the Bureau. 5.1 In case the appointing authority comes to a conclusion that it would not be against the public interest to allow ad hoc promotion to the Government servant, his case should be placed before the next DPC held in the normal course after the expiry of two years period to decide whether the officer is suitable for promotion on ad hoc basis. Where the Government servant is considered for ad hoc promotion, the Departmental Promotion Committee should made as assessment on the basis of the totality of the individual's record of service without taking into account the pending disciplinary case/ criminal prosecution against him."
We have perused the reply of the respondents and in reply the respondents have stated that it was felt that the promotion of the applicant to Group ‘A’ of the service will be against public interest, as the charges against him are grave enough warranting denial of promotion and likelihood of misuse of official position by the applicant which may adversely affect departmental case. The criteria laid down in para 5.1 referred above is that it would not be against the public interest to allow ad hoc promotion to the Government servant. Keeping in mind the said criteria, the action of the respondents cannot be faulted. AIR 2000 SC 2513=2001 (1) SLJ 354 (SC)- Union of India and Ors. v. Lt. General Rajendra Singh Kadyan and Anr., the Apex Court has held as under:-
“When relevant considerations have been taken note of and irrelevant aspects have been eschewed from consideration and that no relevant aspect has been ignored and the administrative decision has nexus to the facts on record, the same cannot be attacked on merits. Judicial review is permissible only to the extent of finding whether process in reaching decision has been observed correctly and not the decision as such.”
Perusal of the same makes it clear that in judicial review the scope is limited one as stated above. We do not find any error in the process adopted by the respondents while considering the case of the applicant for ad hoc promotion.
13. In the result, we do not find any merit in the O.A. It is liable to be dismissed and is dismissed accordingly with no order as to costs.