MOLOY BORA Vs. UNION OF INDIA

JUDGEMENT

(1.) Heard Mr. U. K. Nair, learned senior counsel assisted by Mr. S. P. Das; Mr. N. Das and Mr. A. Deka, learned counsel for the petitioner. Also heard Mrs. R. Bora, learned Standing Counsel, Union Public Service Commission for respondent Nos.2 and 3 as well as Mr. T. C. Chutia, learned Additional Senior Government Advocate for respondent Nos.4 and 5.

(2.) The petitioner is before this Court assailing the order dated 30.11.2017 passed by the Central Administrative Tribunal ("CAT" for short) in OA No.040/00363/2016. The petitioner was before the CAT assailing the order dated 29.06.2016 whereby the representation made by the petitioner on 02.05.2016 had been rejected. Through the said representation the petitioner was seeking consideration of his case for providing the benefit of promotion to the IAS of the Joint Assam-Meghalaya cadre. The CAT having taken into consideration the rival contention had dismissed the application. The petitioner, therefore, claiming to be aggrieved is before this Court in this petition.

(3.) The learned senior counsel for the petitioner while assailing the order passed by the CAT would contend that though the CAT had made detailed reference to Regulation 7 (4) of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 ("Regulations, 1955" for short), the CAT had not considered the same in its correct perspective. It is his submission that as against what is contained in the said Regulations the fact that has arisen in the present case is distinct inasmuch as the benefit that is being sought by the petitioner is in view of his exoneration in the disciplinary proceeding which should relate back to a date prior to the meeting of the Committee for finalization of the promotion to IAS cadre. In that regard it is contended that the factual aspects herein would indicate that in respect of the show cause notice dated 11.01.2012 issued to the petitioner, the enquiry report dated 16.04.2014 had exonerated him. He, therefore, contends that in that circumstance when his name had been recommended by the State Committee for the year 01.01.2012 to 31.12.2012 and even if in the said list his name was indicated as 'provisional' in view of the pendency of the enquiry proceeding as on the date of the meeting on 18.07.2014, he had been exonerated. Despite the same, the Disciplinary Authority had ordered a de novo enquiry which was assailed before this Court and this Court had set aside the same. In that circumstance, though the exoneration order by the Disciplinary Authority was thereafter passed on 12.11.2015 in the circumstance where this Court had held the decision to hold a de novo enquiry as not being sustainable in law, all actions relating to the same should relate back to the enquiry report dated 16.04.2014 based on which the exoneration order was passed. Hence, he contends that in such circumstance, even though the petitioner has been subsequently promoted to the IAS cadre in the select list for the year 2014 and had taken charge on 15.02.2016, a consideration of the case of the petitioner is required to be made as per the select list for the year 2012. In that light, it is contended that the CAT not having considered these aspects of the matter had erroneously arrived at the conclusion that the petitioner had not approached the CAT at an earlier point of time agitating his right with regard to the consideration of the promotion based on the select list, 2012. Accordingly, it is contended that the order of the CAT is liable to be set aside and an appropriate direction is necessary to be issued to the Committee to consider the case of the petitioner based on the select list of the year 2012.