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Judgment
PRAMOD KUMAR DAS, MEMBER (A):
The prayer of the applicant in this OA is for direction for the respondents to give him promotion to JTS Group-A cadre in Level-10 of Pay Matrix from the date his juniors were promoted to the said grade with all consequential service and financial benefits; pay him TA on transfer with interest after quashing the order dated 08.03.2024 in which the respondents rejected his prayer as made above.
The above prayer has been opposed by the respondents inter alia stating that vide letter No 4-2/2023-SPG dated 02.02.2024 approval of Ad-hoc promotion and posting of Postal Service (PS), Group 'B' officers to Junior Time Scale (JTS) of Indian Postal Service (IPoS), Group 'A' in the Level-10 (Rs, 56,100-1,77,500) of the Pay Matrix and transfers/postings of adhoc JTS Officers of IPOS, Group 'A' was conveyed by the competent authority, in which the name of the applicant also finds place for ad-hoc promotion from Postal Service (PS), Group 'B' to the Junior Time Scale (JTS) of Indian Postal Service (IPOS), Group 'A' in the Level-10 (Rs 56100-177500) of the Pay Matrix with effect from the date of assumption of charge and for a period not exceeding beyond one year or until further orders, whichever is earlier, and he was allotted to West Bengal Circle. As per the said order, the promotion of the officers whose names find place therein shall be subject to clearance of disciplinary/vigilance status prior to issue of ad-hoc promotion order. The APMG(Vigilance), Circle Office, Bhubaneswar vide letter No. Vig/8-Misc-6/2023 dated 07.03.2024 intimated that the disciplinary/vigilance status of the applicant was 'Not Clear' as a draft chargesheet against him under Rule 14 of CCS(CCA) Rules, 1965, on the alleged irregular revision of TCRA of GDSs under Rayagada Division, was forwarded to the Directorate, New Delhi vide letter No. Vig/9-1(1)/2024 dated 06.03.2024. Therefore, order of ad hoc promotion of remaining Group 'B' officers to the Junior Time Scale (JTS) of Indian Postal Service (IPoS), Group 'A' in the Level-10 (Rs 56,100-1,77,500) of the Pay Matrix was issued by the Circle Office vide letter No.ST/2-34(3)/2024 dated 08.03.2024 and, insofar as applicant is concerned, it was mentioned that his promotion/posting order could not be issued due to pendency of disciplinary/vigilance case against him. Taking into consideration the ensuing date of retirement of the applicant on 31.03.2024, reminder was issued vide letter No.ST/2-34(3)/2024 dated 20.03.2024 to the Directorate to issue necessary instruction in respect of the ad-hoc promotion of applicant to Junior Time Scale (JTS) of Indian Postal Service (IPOS), Group 'A'. The Directorate vide letter No.4-2/2023-SPG-Part(1) dated 22.03.2024 intimated that promotion of the applicant should not be withheld on a mere ground that disciplinary action is contemplated. As per instructions contained in Directorate letter No.4-2/2023-SPG-Part(1) dated 22.03.2024, again vide letter No. ST/2-34(3)/2024 dated 26.03.2024, the APMG (Vigilance), Circle Office, Bhubaneswar was requested to intimate latest disciplinary/vigilance status in respect of the applicant. The APMG (Vigilance), Circle Office, Bhubaneswar vide letter No. Vig/8-Misc-6/2023 dated 27.03.2024 intimated that the status of disciplinary/vigilance in respect of applicant is 'Clear'. Since, 29th, 30th & 31st of March, 2024 were holidays, the Circle office vide letter No. ST/2-34(3)/2024 dated 28.03.2024/01.04.2024 issued promotion-cum-posting order of the applicant after his retirement on 31.03.2024, from the post of SRM RMS BG Division Berhampur. Hence, no illegality was committed by the respondents requiring judicial intervention in the matter.
Ld. Counsel for the applicant, in course of hearing, by remembering and reminding us the several decisions of the Hon’ble Apex Court, submitted that promotion of an employee can be withheld only after disciplinary proceedings is initiated by issuing memorandum of charge and no authority is vested with any such discretion to withhold the promotion of an employee in contemplation of disciplinary proceedings or mere filing of FIR in the criminal case or during preliminary investigation. In the instant case, admittedly, the applicant after being found suitable was approved for promotion along with others, including his juniors, but the respondents withheld promotion in respect of the applicant in contemplation of disciplinary proceedings and, finally, order of promotion was issued on 28.03.2024/01.04.2024 without any charge sheet being issued against him. Therefore, in terms of the rules and law enunciated by the Hon’ble Apex Court in very many cases, the order of promotion of the applicant is bound to be given effect to from the date others, including his juniors, were promoted. In the instant case, as per the provisions, the applicant was ceased to be an employee in the afternoon of 31.03.2024, even though, the last working day in respect of the applicant was the afternoon of 28.03.2024; from 29th to 31st being the holidays. It is stated that for the fault of the respondents, the applicant has not only suffered mentally and financially while in service, which also perpetuated even after his retirement because he is financially ruined as he gets lesser pension and pensionary benefits.
On the other hand, by reiterating the stand point taken in the counter as noted above, Ld. Counsel for the respondents have prayed that absolutely no injustice was caused to the applicant in the decision making process of the matter as because his promotion was withheld since draft charge sheet was sent for approval for which no vigilance clearance was issued; when issuance of the vigilance clearance before giving effect to promotion is a precondition mentioned in the order of approval conveyed vide letter No 4-2/2023-SPG dated 02.02.2024. Hence, respondents’ Counsel prayed for dismissal of this OA.
Upon hearing the Ld. Counsel at length, perused the records.
We find that the very observation of the Hon’ble Apex Court rendered in the case of Lakshmi Ram Bhuyan Vs Hari Prasad Bhuyan & Ors in Appeal (Civil) 7450 of 2002 dated 20.11.2002 that an inadvertent error emanating from non-adherence to rules of procedure prolongs the life of litigation and gives rise to avoidable complexities. The present one is a typical example wherein “a stitch in time would have saved nine”. The above view is squarely applicable to the present case as we find that for the fault of the Respondent-Department for non-adherence of the Rules in its proper perspective, the matter has reached to this stage thereby unnecessarily not only spending the valuable time of the Court but also burdening the Government Exchequer by way of bearing the litigation expenses since despite the trite law that an employee's promotion cannot be withheld or subjected to the sealed cover procedure based merely on the contemplation of disciplinary proceedings, registration of an FIR, or an ongoing preliminary investigation vide Union of India Vs. K.V. Janakiraman, AIR 1991 SC 2010, Union of India and Others V. Sangram Keshari Nayak, 2007 (6) SCC 704 & Union of India V. Anil Kumar Sarkar, 2013 (4) SCC 161, and the DoP&T OM inter alia stating that in terms of the judgment of the Hon’ble Supreme Court in the case of K.V.Janakiraman (supra), no promotion can be withheld merely on the basis of suspicion or doubt or where the matter is under preliminary investigation and no charge sheet has been issued to the employee concerned, the applicant was denied his promotion and ultimately though promoted but not from the date others, including his juniors, were promoted. In the instant case, no departmental proceeding was admittedly pending when the approval was conveyed and order of promotion in respect of others including juniors of the applicant were issued. Also no disciplinary proceedings were initiated against the applicant till his retirement and he was, ultimately, in pursuance of the approval conveyed in Letter No. 4-2/2023-SPG dated 02.02.2024, promoted to JTS Group-A cadre in Level-10 vide order dated 28.03.2024/01.04.2024. Hence, in view of the law laid down by the Hon’ble Apex Court, the applicant was entitled to and ought to have been promoted to the post in question from the date when his juniors were promoted.
Notably, an employee does not have a right for promotion but he has an absolute right, which is fundamental in nature for consideration for promotion. In the instant case, the applicant was found suitable for promotion and accordingly approval by the competent authority was accorded, based on which, the others including juniors of the applicant were promoted but the applicant was denied such promotion in the guise of contemplation of disciplinary proceedings, however, subsequently, he was promoted but not from the date his juniors were promoted, which is an illegal and arbitrary action of the Respondents being opposed to the law and DoP&T OM. In the said order of promotion, it was stated that the applicant shall also be entitled to the benefits in the promotional post on assumption of the charge. The order was passed on 28.03.2024. He did not refuse to accept promotion. Admittedly, the applicant was in service till afternoon of 31.03.2024 and it was obligatory on the part of the respondents to relieve him from his substantive post so as to join in the promotional place and post but no record is produced by the respondents to the said extent. Hence, to the above extent, the action of the respondents cannot be said to be bonafide exercise of power. In the said premises, no fault can be attributed to the applicant for his non-joining in his promotional post. As discussed above, the applicant is entitled to be promoted retrospectively w.e.f. the date when his juniors were promoted vide order dated 02.02.2024. Now question arises for consideration as to whether upon such promotion retrospectively he shall be entitled to salary in the promotional post. In this regard we are reminded by the decisions of the Hon’ble Apex Court rendered in the case of Deepali Gunda Surwase vs Kranti Junior Adhyapak Mahavidyalaya (D.ED.) & Ors, (2013) 10 SCC 324 wherein Their Lordships of the Hon’ble Apex Court held that denial of back wages to an employee, who has suffered due to an illegal act of the employer, would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments. This view has again been reiterated in the case of Jasmer Singh Vs state of Harayana & Anr, in Civil Appeal No. 346 of 2015 (arising out of SLP (C) No. 1532 of 2014 dated 13th January, 2015. Hence, it is held that upon his retrospective promotion, as directed above, the applicant shall be entitled to the full backwages in the post of JTS Group-A cadre in Level-10 with effect from the date others, including his juniors, were promoted, and, resultant benefits of revision of his pay, pension and other pensionary benefits. The entire drill shall be completed within a period of 90 days from the date of receipt of a copy of this order.
In the result, this OA stands allowed to the extent stated above. Pending, MA, if any, also stands disposed of. There shall be no order as to costs.