{"id":8516,"date":"1998-03-23T00:00:00","date_gmt":"1998-03-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/k-l-goswami-vs-m-c-d-on-23-march-1998"},"modified":"2018-12-05T01:02:33","modified_gmt":"2018-12-04T19:32:33","slug":"k-l-goswami-vs-m-c-d-on-23-march-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/k-l-goswami-vs-m-c-d-on-23-march-1998","title":{"rendered":"K.L. Goswami vs M.C.D. on 23 March, 1998"},"content":{"rendered":"
Delhi High Court<\/div>\n
K.L. Goswami vs M.C.D. on 23 March, 1998<\/div>\n
Equivalent citations: 72 (1998) DLT 642, 1998 (45) DRJ 145<\/div>\n
Author: . M Sharma<\/div>\n
Bench: M Sharma<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
Dr. M.K. Sharma, J.<\/p>\n
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.\n<\/p>\n
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
\nCourt seeking for the aforesaid direction.\n<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
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, .\n<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
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
\npromotion will have a notional effect.\n<\/p>\n
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.\n<\/p>\n
     With  the  aforesaid  observations and directions  the  writ  petition stands disposed of.\n<\/p>\n
     Petition disposed of.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court K.L. Goswami vs M.C.D. on 23 March, 1998 Equivalent citations: 72 (1998) DLT 642, 1998 (45) DRJ 145 Author: . M Sharma Bench: M Sharma 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-8516","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nK.L. 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