Anil Kumar Jain vs Oil and Natural Gas Corporation Ltd. and Others

J.N. Sarma, J.—This writ application has been filed by an employee of ONGC. The petitioner herein joined as Assistant Chemist of ONGC in the year 1976. In July, 1983 the petitioner was deputed for sampling and testing of Caustic Sodash the material was despatched by a firm. After one year adulteration was noticed in the chemical and a base being RC-42/ 1983 was registered by the C.B.I. against the supplier and distributors. On 1.1.1989, the petitioner was promoted as Deputy Superintending Chemist on ad hoc basis. On 25.8.1987 a charge-sheet was issued against the petitioner alleging that he had failed to carry out sampling and bonding of Soda Ash and that he had issued false certificate showing adulterated and sub-standard Soda Ash as conforming to ONGC specification. The enquiry was completed and the petitioner was found guilty. The petitioner was dealt with leniently and he was only warned by the employer. The order in the enquiry was passed on 28.3.1994 the petitioner was found to be careless and negligent in performing duties. In the meantime, the petitioner was promoted on ad hoc basis as Superintending Chemist on 13.6.1996 with effect from 1.1.1992. There was further consideration for further promotion of the petitioner to the post of Chief Chemist. The petitioner appeared in the DPC, but his case was not considered. It is the case of the Respondents that the case of the petitioner was considered along with others, but he was not found suitable for promotion. Accordingly, he was not promoted.

I have heard Mr. G.N. Sahewalla learned Advocate for the petitioner and Mr. A. Roy, learned Advocate for the Respondents.

3 contentions are put forward by the learned Advocate for the petitioner Mr. G.N. Sahewalla and they are: (i) No Departmental proceeding pending, criminal case was pending. Therefore, non-consideration of the petitioner''s case for regularisation of his earlier promotion and for further promotion is illegal, arbitrary and unconstitutional, (ii) pending of criminal case against some suppliers cannot be a ground to deprive the petitioner from further promotion, more particularly, when he was virtually exonerated in disciplinary proceeding, (iii) denial of opportunity to the petitioner to appeal for interview for promotion to the post of Chief Chemist is illegal.

Regarding first contention, what is to be borne in mind is that this promotion is by way of selection and in such a situation, the authority has a right to take into account the post conduct of the person. If any authority is required for this proposition, one may have a look at Union of India Vs. K.V. Jankiraman, etc. etc., where in paragraph 29 the Supreme Court has pointed out as follows : That when an employee is completely exhonerated meaning thereby that he is not found guilty in the least and is not visited with punishment even with censure he has to be given benefit of promotion, his due salary of the higher post along with other benefits from the date on which he would have been normally promoted, but for the departmental or criminal proceeding. But if the situation is otherwise meaning thereby that he is found guilty and punishment is given, his case shall stand absolutely on different footing and that aspect of the matter has been dealt with in paragraph 29.

"An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To quality for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee fount guilty of a misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is, therefore, no discrimination when in the matter of promotion, he is treated differently. The least that is expected of any administration is that it dues not reward an employee with promotion retrospectively from a date when for his conduct before that date he is penalised in praesenti. When an employee is held guilty and penalised and is, therefore, not promoted at least till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct. In fact, while considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified."

So, denial of promotion on regular basis to the petitioner in this particular case cannot be faulted with. The learned Advocate for the petitioner places reliance in (1990) 1 SCC 738.

This case does not require fresh consideration as that case has been relied in the subsequent case Union of India Vs. K.V. Jankiraman, etc. etc., The learned Advocate for the respondents places reliance on the following decisions :

2000 (1) GLT 301 (Atanu Kr. Das and Ors. v. Bongaigaon Refinery & Petro Chemicals Ltd and Ors.) wherein a Single Judge of this Court pointed out that the scope of judicial review with regard to decision arrived at by DPC after careful consideration of records, no irrelevant and improper consideration, the Court must not sit on appeal over such decision and took into the merit. The next case is Sterling Computers Limited and Others Vs. M and N Publications Limited and Others, This is a case with regard to power of the court regarding judicial review. As I have held earlier that the scope of judicial review is limited. This aspect of the matter need not be considered again. The next case is A.M. Allison Vs. B.L. Sen, This is a case where the Supreme Court pointed out that even if an order is illegal or irregular, the court should not quash such an order to bring into existence another illegal thing. The Supreme Court pointed out that by issuing a mandamus the court cannot ask the authority to do certain things which on the face of it are illegal.

Be that as it may, on consideration of materials on record, I find that this writ application has no merit and accordingly the same shall stand dismissed. I leave the parties to bear their own costs. The records produced by Mr. Roy are returned to him.