JUDGMENT
Dr. M.K. Sharma, J.
1. In this writ petition the petitioner has sought for a writ of mandamus to the respondent directing it to promote the petitioner to the post of Deputy Director (Horticulture) with effect from 26.8.1986.
2. The petitioner was promoted to the post of Assistant Superintendent (Garden) in the year 1969. In 1979, the said post of Assistant Superintendent (Garden) was re-designated as Assistant Director (Horticulture). A Departmental Promotion Committee was constituted by the respondent for considering the names of eligible candidate for promotion to the post of aforesaid Deputy Director (Horticulture) from Assistant Director (Horticulture). The said Departmental Promotion Committee met in the month of July, 1986 and on 14.7.1996 the Departmental Promotion Committee constituted a panel. The petitioner who was working as Assistant Director (Horticulture) was also an eligible candidate for such promotion as Deputy Director (Horticulture) and accordingly his case was also considered by the Departmental Promotion Committee for such promotion and he was empanelled and placed at Sl. No. 2 of the Select Panel. Subsequent to the aforesaid selection and empanelment the petitioner was also given current charge of the post of Deputy Director on 26.8.1986 alongwith the candidates who were placed at SI. Nos. 1, 3 & 4. Under the relevant rules, the recommendations of the Departmental Promotion Committee were required to go to the Corporation, the said post being Category ‘A’ post. Accordingly, the recommendations of the DPC and the panel was placed before the Corporation and the Corporation also approved the panel. However, in the meant time i.e. on 16.6.1987 the petitioner was suspended from service in contemplation of institution of a departmental proceeding against him. Subsequently, on 26.8.1987 the petitioner was reinstated in service. The respondent issued an order on 3.9.1987 giving promotion to all others in the panel to the post of Deputy Director (Horticulture) on regular basis making the said promotion effective from 19.8.1986, the date when such promotees were given the current duty charge of the post of Deputy Director. However, lthough the petitioner was empanelled at SI. No. 2 of the panel for promotion to the post of Deputy Director (Horticulture), no order was issued in respect to him. The petitioner accordingly, filed the present writ petition in this
Court seeking for the aforesaid direction.
3. During the pendency of the present writ petition in this Court, the respondent issued a chargesheet against the petitioner on 8.10.1990 and subsequent to a departmental proceeding conducted against him a penalty of ‘Censure’ was imposed upon the petitioner on 30.9.1994, the date when the petitioner also retired from service.
4. The issue, therefore, which is urged before me is – whether the petitioner was entitled to be promoted to the post of Deputy Director (Horticulture) alongwith all other empanelled candidates w.e.f. 26.8.1986 and if he is so entitled to be so promoted what would be the consequential benefits that the petitioner would be entitled to.
5. Mr. Nandrajog, the learned Counsel for the petitioner submits that a departmental proceeding can be said to be instituted and/or pending only when a charge sheet is issued against the Delinquent Officer. According to him in the present case the date when the Departmental Promotion Committee considered the case of the petitioner alongwith others for promotion to the post of Deputy Director (Horticulture) and recommended and empanelled the name of the petitioner no charge sheet was admittedly either issued or served on the petitioner and therefore, the petitioner was entitled to be promoted to the post of Deputy Director (Horticulture) on regular basis w.e.f. the date his junior in the panel was promoted i.e. w.e.f. 26.8.1986. According to the learned Counsel ‘Censure’ is held not a bar for getting promotion under a circular issued by the Ministry of Personnel and Public Grievances and therefore, the petitioner is not only entitled to be promoted to the post of Deputy Director (Horticulture) on regular basis from the date when his junior was so promoted on regular basis but he is also entitled to all consequential benefits in view of the decision of the Supreme Court in Union of India Vs. K.V. Janakiraman, .
6. I have also heard Ms. Amita Gupta, learned Counsel appearing for respondent No. 1. According to Ms. Gupta appearing for the respondent the petitioner was not given promotion to the post of Deputy Director (Horticulture) on regular basis as he was involved in a departmental proceeding in respect of which the charge sheet was issued by the respondent on 8.10.1990 and that penalty of ‘censure’ was imposed on the petitioner on 30.9.1994.
7. In view of the rival submissions of the learned Counsel appearing for the parties the issues that arise for my consideration are – (1) as to what is the date from which it can be said that a disciplinary or criminal proceeding is pending against an employee; (2) What is the course to be adopted when the employee is held guilty in such proceedings and the guilt merits punishment other than dismissal or removal. An additional issue also arises for my consideration as to whether the petitioner in the present case is entitled to any consequential benefit or not.
8. The Government of India, Department of Personnel and Training has issued a Circular on 30.1.1982 on the subject of promotion of officers in whose cases sealed cover procedure had been followed but against whom disciplinary/Court proceedings were pending for a long time. It is laid down in the said Circular that when a departmental proceeding and/or any case in a Court of law is pending against the individual in such case the Departmental Promotion Committee would consider the case of the said individual for the purpose of his promotion under sealed cover procedure. The aforesaid Memorandum issued by the Government of India came to be considered and interpreted by the Supreme Court in the case of Janakiraman’s case (supra). On consideration of the provisions of the said circular he Supreme Court held that the promotions etc. cannot be with held merely because some disciplinary/criminal proceedings are pending against the employee. It was further held that to deny the said benefit they must be at the relevant time pending at the stage when the charge memo/charge sheet had already been issued to the employee. Although the aforesaid decision was rendered by the Supreme Court in the context of the aforesaid memorandum dated 30.1.1982 the Supreme Court also considered the subsequent notification issued by the Government of India i.e. in the year 1988 and found that there is not much of a distinction between the two circulars. When we consider the facts of the present case in the light of the aforesaid decision of the Supreme Court and also in the light of the Memorandum issued by the Government of India in 1988, it is clear that on the date when the case of the petitioner was considered for promotion to the post of Deputy Director (Horticulture) by the Departmental Promotion Committee no charge sheet was either issued or served on the petitioner and therefore, it cannot be said that a departmental proceeding was either instituted or pending against the petitioner on that relevant date when his case for promotion to the post of Deputy Director (Horticulture) was considered by the Departmental Promotion Committee. The Departmental Promotion Committee also being conscious of the aforesaid position considered the case of the petitioner for such promotion and also empanelled him having placed him at Sr. No. 2 of the Select Panel. The others in the panel were given regular promotion to the post of Deputy Director (Horticulture) w.e.f. 26.8.1986 which benefit was denied to the petitioner by the respondent. The aforesaid order of promotion in respect of the other panelists was issued on 3.9.1987 when again no departmental proceeding, could be said to have been instituted or pending against the petitioner. Accordingly, therefore, the respondent could not have denied, the petitioner the right to be promoted to the post of Deputy Director (Horticulture),on 3.9.1987 when his junior in the panel was promoted to the aforesaid post giving effect to the said promotion order from 26.8.1986. The petitioner was also given current duty charge of the said post of Deputy Director (Horticulture) w.e.f. 26.8.1986 and he continued to hold the said post on current duty charge till the date of his retirement. Accordingly, therefore, I am of the considered opinion that the petitioner is entitled to be promoted to the post of Deputy Director (Horticulture) on regular basis w.e.f. the date his junior was promoted to the said post i.e. on 3.9.1987 w.e.f. 26.8.1986. It however, appears that subsequent to the institution of the departmental proceedings during the pendency of the present writ petition a penalty of ‘Censure’ has also been imposed on the petitioner. The said imposition of penalty has become final as no appeal was filed by the petitioner as against the said penalty. Since the petitioner has retired from service w.e.f. 30.9.1994 the said order of
promotion will have a notional effect.
9. Consequent to passing of the aforesaid order, the issue that remains for my consideration is as to what consequential benefit the petitioner would be entitled to. Since the petitioner has been imposed a minor penalty of ‘Censure’ I deem it appropriate to direct the respondent to consider as to what relief the petitioner would be entitled to so far payment of his arrears of salary and allowances are concerned. The petitioner shall however, be entitled to full petition as if he had worked in the post of Deputy Director (Horticulture) w.e.f. 26.8.1986. The respondent shall pass necessary orders determining the quantum of arrears, salary and allowances payable to the petitioner for the period from 26.8.1986 till the date of his retirement within a period of 6 weeks from today. In case the authority denies salary to the petitioner in full or in part, it shall record its reasons for doing so.
With the aforesaid observations and directions the writ petition stands disposed of.
Petition disposed of.