C P GUPTA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner, a Civil Engineer, is working with General Reserve Engineer Force of Border Roads Organisation for a considerable time. It is the case of the petitioner that he was performing his duties with utmost dedication, sincerity and his working was appreciated by all concerned and he was even awarded two commendatory certificates by the Central Government in the year 1994 and 2002. Based on his overall meritorious performance, the petitioner always earned his promotions in time. Vide order dated 26.4.04 the petitioner was promoted to the grade of Non-functional Executive Engineer (Civil). He was given posting orders as Executive Engineer (Civil), Non-functional selection grade on 27.4.04 itself. The Departmental Promotion Committee, for promotion to the rank of Superintending Engineer (Civil) met and vide order dated 30.8.05, the petitioner alongwith two others namely Shri Narendra Prasad and Shri Purshothaman KP have been promoted to the grade of Superintending Engineer (Civil). The promotion was to be effective from 1.9.05 or the date of assumption of charge of the post, whichever is later. The aforesaid order required the officers selected to take charge within a period of one month from issuance of notification in the Gazette of India. According to the petitioner, he became entitled to be immediately posted as Superintending Engineer (Civil) upon issuance of the letter dated 30.8.05. However, respondent No. 3 with mala fide intentions neither sent a copy of the order to the petitioner nor issued any posting orders in respect of the petitioner though he issued posting orders of other two selected officers and in furtherance to those orders they have joined also.

(2.) In this petition under Article 226 of the Constitution of India, the petitioner questions the action of the respondents in not issuing the letter of posting to the petitioner and giving him the benefits of the post of Superintending Engineer as per rules. Thus, he prays for issuance of a writ, order or direction to the respondents to issue posting order in furtherance to the order dated 30.8.05 and to grant all consequential benefits including seniority to the petitioner. This claim of the petitioner is refuted by the respondents on the ground that the petitioner is involved in a grave misconduct of misappropriation of public fund of around Rs. 2.6 crores while functioning at OC contract and the decision of the disciplinary authority to proceed against him under CCS (CCA) Rules 1965, has already been taken well before holding of the DPC and as such there was no question of issuing him any posting orders and recommendation of DPC in regard to his selection should be kept in a sealed cover. According to the respondents, the petitioner has not approached the Court with clean hands and correct facts. According to the respondents, the correct facts are as under :-

(3.) The learned counsel appearing for the petitioner while referring to the order dated 30.8.05 stated that the said order constitutes a complete promotion in all respects and as stated at the end of the letter "The charge assumption report of the officer may please be sent to this Sectt. within a period of one month for issue of notification in the Gazette of India "is a mere formality and the respondents cannot deny promotion to the petitioner even if subsequently a disciplinary action is contemplated against him. The counsel for the petitioner also states that the letter was to take effect from 1.9.05 or from the date of assumption of charge of the post, whichever is later. In other words, the steps in furtherance to the order dated 30.8.05 is a mere formality. Further, he also relied upon the letter dated 7.9.05 issued to the other selected candidates in which it is also recorded that " It is clarified that cognizance of involvement of the officers will be taken only if Memo of charges has been served on the officers under CCS (CCA) Rules 1965 or S of E has been ordered under Army Act." Laying emphasis on this, it is stated that the chargesheet was not served upon the petitioner before issuance of the order dated 30.8.05 and on this premise, the respondents cannot deny promotion to the petitioner. The counsel for the petitioner placed reliance upon the Judgment of the Supreme Court in the case of Bank of India and Another v. Degala Suryanarayana, 1999 (5) SCC 762 to contend that no sealed cover procedure could be followed in the present case as the departmental enquiry in law would be initiated subsequent to the date of consideration of promotion. The counsel also relied upon another Supreme court judgment JT 1991 (4) SC 109 titled as Union of India & Ors. v. K.V. Jankiramna & Ors. in support of the contentions afore-noticed.