PRANAB BARUAH Vs. N.F. RAILWAY

JUDGEMENT

(1.) Heard Mr. N. Deka, learned counsel for the petitioner and Mr. B. Sarma, learned standing counsel for the respondents.

(2.) By filing this writ petition under Art. 226 of the Constitution of India, the petitioner has challenged the non- implementation of the order of promotion dtd. 15/5/2014 by which the petitioner was promoted to the post of Assistant Security Commissioner/Assistant Commandant at Katihar against an existing vacancy.

(3.) The learned counsel for the petitioner has referred to the stand taken in the writ petition and has submitted that prior to the issuance of the order of promotion, the authorities had satisfied itself that no "Discipline and Appeal Rules" case is pending that the vigilance clearance had also been obtained from the Zonal Office and only after the said exercise the Railway Board had issue the order of promotion dtd. 15/5/2014, wherein the name of the petitioner appears at serial no. 47. However, on 21/5/2014, before the petitioner could join, a charge-sheet was submitted to him in connection with an allegation of availing a house building advance for an amount of Rs.5,75,000.00 from the Welfare Scheme of Railway Establishment in the year 2012 with fabricated documents and not utilizing the advance for the purpose for which it was granted. On receipt of the charge-sheet, the petitioner submitted his statement of defence on 23/5/2014. The departmental enquiry against the petitioner was started and as per the Enquiry Report, the charges against the petitioner were proved. Resultantly, the competent authority, i.e. the Senior Divisional Security Commissioner/RPF, NF Railway, Lumding awarded punishment of reduction of rank from Inspector to Sub-Inspector for a period of 6 (six) months with non- cumulative effect, and according to the petitioner the period of six months was with effect from 8/2/2015 to 7/8/2015. However, although the punishment period was over, the respondents did not implement the order of promotion dtd. 15/5/2014. The learned counsel for the petitioner has submitted that the said promotion order was not recalled and therefore, stood alive and was liable to be implemented. It is also submitted that presumably on the same charges on which departmental enquiry had taken place, the Central Bureau of Investigation has also taken up investigation. The petitioner had appeared before the Inspector of Police, CBI, ACB, Guwahati. The CBI Inspector had seized (i) the copy of order dtd. 8/2/2015, passed in the departmental enquiry, and (ii) pay slip for the month of March, 2017 vide seizure memo dtd. 27/4/2017. It is submitted that as per his instructions, no charge-sheet has been submitted by the CBI in connection with investigation taken up by them. It is submitted that there was no impediment for the respondent authorities to give effect to his promotional order dtd. 15/5/2014 and as such the petitioner had served his advocate's notice dtd. 15/5/2017 upon the Director General, RPF, Railway Board. The Deputy Director/Sec (E) Railway Board by his reply letter dtd. 6/7/2017, informed the petitioner that his promotion was subject to Discipline and Appeal Rules (DAR for short)/Vigilance/Criminal case clearance. The learned counsel for the petitioner had submitted that the petitioner had served his representation dtd. 1/8/2017 to the Director General, RPF, Railway Board, but the same was not responded to.