T. SELVARAJ Vs. UNION OF INDIA AND OTHERS

JUDGEMENT

(1.) The case of the petitioner is that originally he was appointed as a Sub-inspector in Railway Protection Force, Southern Railway in the year 1988 and subsequently, he was promoted as Inspector in the year 1996. Thereafter, the petitioner having attained sufficient seniority and having merit for consideration for promotion as Assistant Security Commissioner, the petitioner has been promoted to the post of Assistant Security Commissioner vide order dated 14.08.2013 in X/P.534/P&T/Gaz/2013/II and posted to serve as Assistant Security Commissioner, Kharagpur, South Eastern Railway in an existing vacancy but before he was relieved to join in the new place of posting in the promotional post, as he was indicted in a Criminal case under NDPS Act, he was put under suspension by the 4th respondent vide its order dated 20.08.2013 and thereby, the promotion given was denied vide impugned order dated 05.11.2013 canceling the promotion and a charge memo was also issued to him on 10.09.2013 for his involvement in the criminal case. Aggrieved by the same, the petitioner filed a writ petition before the Madurai Bench and obtained an order of interim stay of all the disciplinary proceedings vide order dated 26.11.2013. However, the 4th respondent after such order of stay being vindictive issued another charge memo against the petitioner on 06.01.2014 alleging misconduct which stated to have been committed in the year 2012 with regard to use of emergency duty pass and immediately an enquiry officer was appointed to conduct the disciplinary proceeding. The petitioner filed a WP (MD) No.18934 of 2013 challenging initiation of such disciplinary proceeding and got an order of stay of the same in the said writ petition. Thereafter, the order of suspension of the petitioner has been revoked on 31.03.2015 and the petitioner is presently posted as Inspector of RPF. The petitioner came to file this writ petition challenging the denial of promotion to him interalia on the grounds that even though he was indicted in a criminal case which is otherwise also without any substance and also disciplinary proceedings were initiated against him on some false foundation, he could not have been denied promotion and allowed to join in his new place of posting as no charge and criminal prosecution was pending against him on the date of his promotion and the charges are subsequent to his promotion. Therefore, he has made the prayer as stated earlier. The other writ petition has been filed with regard to denial of duty pass to him to attend the criminal prosecution inasmuch as, he was also getting the duty pass for attending the departmental proceeding.

(2.) A common counter affidavit has been filed by the respondents with the averments that the petitioner's claim in this regard is without any substance, inasmuch as the promotion given was subject to Discipline and Appeal Rules / Vigilance / Criminal Case clearance by the Railways and before according final promotion and allowed to join in the place of posting, as he was involved in a criminal case i.e under NDPS Act and also departmental proceedings was initiated against him which have been stayed at the instance of the petitioner, his promotion order was canceled vide the impugned order. The same is moreso, inasmuch as, the petitioner was put under suspension for his misconduct before joining.

(3.) During the course of hearing, the learned counsel appearing for the petitioner submits that it is not in dispute that the petitioner was promoted taking into consideration his merit in service and he was also given a posting in the promotional post at Kharagpur, but before his relieve, he was mischievously indicted in a criminal case and put under suspension and not allowed to join in his place of posting. Thereafter, disciplinary proceeding were initiated against him for such indictment in the criminal prosecution and the disciplinary proceedings being grounded on the same fact, the disciplinary proceeding in this regard has been stayed, pending disposal of the criminal prosecution. However, the Authority being aggrieved by such order of stay of the disciplinary proceeding by the petitioner, initiated another departmental proceeding on another false foundation in a frivolous charge of misuse of emergency duty pass dates back in the year 2012. The petitioner when challenge the same before the Madurai Bench of this Court vide the writ petition as stated earlier, the Madurai Bench of this Court taking into consideration the merit of the writ petition that is the contention of the petitioner that the same is actuated with malafide to harass the petitioner, interim order was passed staying the same. The petitioner has also been taken back to service by reinstatement. It is the settled position of law, if no charge is pending against a person on the date for consideration of promotion, the promotion given to him cannot be denied on the ground of his subsequent involvement in any criminal case / disciplinary proceeding. In such view of the matter, it is submitted that since no charge was pending against the petitioner on the date of his promotion and he having been promoted, notwithstanding his involvement in a criminal case.So also, drawal of disciplinary proceedings against him, subsequent to such promotion, he could not have been denied the promotion given vide the impugned order of cancellation of promotion. In this regard, reliance has been placed in a decision of the Apex Court, reported in 2013 (4) SCC 161 [Union of India v. Anil Kumar Sarkar] . It appears that in the reported decision Anil kumar Sarkar when holding the post of AFA/T-1 in the office of the Financial Advisor and Chief Accounts Officer of the North Frontier Railway (NFR) at Maligaon, a Departmental promotion committee (DPC) was convened by the Union Public Service Commission (UPSC) on 26.02.2002 and on 27.02.2002 for consideration of officers of the Group B of the department for their substantive promotion to Group A (Junior scale) of Indian Railways Accounts Service against the vacancies for various Zonal Railways / Production Unit, Anil Kumar's name was also considered against the vacancies in NF Railway for the year 2001-2002 and accordingly, his name was listed in the selected panel. However thereafter, 4 Memorandum of charges were issued to the respondents, two of which on 13.08.2003 and the another on 01.09.2003 and other on 05.11.2003 alleging some misconduct to have been committed by him in the year 1994-1995, so also, enquiries were completed and show cause notice were served. Basing on the similar charges, CBI also lodged criminal prosecution against him vide 11 different FIR's alleging offence under section 120 -B /420 of the Indian Penal Code and Section 13(1) (d) r/w Section 13(2) of the prevention of corruption Act. On the basis of the aforesaid, subsequent involvement in the criminal charge and drawl of departmental proceeding, he was not accorded promotion. The petitioner came to challenge the same before the Central Administrative Tribunal (CAT) unsuccessfully. Challenging such order of the CAT, the petitioner approached the Gauhathi High Court in WP No.744 of 2010, wherein the Gauhathi High Court allowed the writ petition, set aside the order of the CAT dismissing the Original Application and directed the respondents therein to issue appropriate order in favour of the respondents for promotion with all consequential benefits. The same being challenged before the Apex Court by the Union of India, the Apex Court placing reliance in the case of [Union of India v. K.V.Janaki Raman] reported in 1991 (4) SCC 109 dismissed the Civil Appeal of the Union of India and upheld the order of the Gawhathi High Court. The learned counsel appearing for the petitioner placing heavy reliance on the same, submits that the petitioner is entitled to the relief sought for in view of the law laid down in the case of Anil Kumar Sarkar(supra).