INDER RAJ MATHUR Vs. UNION OF INDIA

JUDGEMENT

(1.) Whether the proceeding of a preliminary enquiry has any bearing on promotion, is the issue arising for consideration in the instant case. Before analyzing the legal position, it would be fruitful to have some reference to the factual matrix. The petitioner has been officiating in the post of Chief Engineer since February, 2009. On 5.6.2009, a DPC was held, in which the petitioner was also recommended for promotion. Those proceedings were challenged before the High Court of Gauhati and the same were set aside with a direction to convene a fresh DPC, considering the case of the petitioner therein also, as per judgment dated 26.10.2009 (Annexure-P-3). It took long time to have the subsequent DPC, which was held only on 3.3.2011. That DPC also recommended the petitioner for regular promotion to the post of Chief Engineer. The juniors to the petitioner were consequently promoted as per order dated 29.7.2011 (Annexure-P-7). The petitioner made representations and finding that no fruitful action had been taken, this writ petition was filed on 30th November, 2011, praying for a direction to the respondents to promote the petitioner as Chief Engineer w.e.f. 29.7.2011, the date on which the juniors to the petitioner were promoted as Chief Engineer. It is not in dispute that in case the petitioner is to be promoted, the department has already taken a decision to accord the petitioner his due seniority vis-a-vis the private respondents. Therefore, it is not necessary for us to issue notice to the private respondents, since they are not going to be affected in any manner.

(2.) It is the contention of Mr. Janesh Mahajan, learned Central Government counsel that on 29.7.2011, the petitioner was under a cloud in view of the pendency of Court of Inquiry (Preliminary Inquiry) wherein it has been reported that the petitioner is also involved in certain irregularities with regard to the awarding of contracts and purchases etc. But, it is admitted fact that either as on the date of DPC or on the date of consequential promotions granted to the juniors on 29.7.2011, no departmental inquiry had been initiated against the petitioner by serving a memorandum of charge. It is also not in dispute that he was not under suspension and still further, there was no criminal case pending against him as on that date.

(3.) The office memorandum dated 14.9.1992 deals with promotion of Government servant against whom disciplinary/Court proceedings are pending or whose conduct is under investigation. Para-2 thereof reads as follows:--