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Judgment
PER: RAJINDER SINGH DOGRA, JUDICIAL MEMBER:
The applicant has approached this Tribunal to seek the following relief:
“8.1To direct the respondents to promote the applicant as Accounts Officer (A.O) retrospectively w.e.f. 29.06.2018 i.e. from the date of promotion of his juniors/batchmates following next below rule forthwith with all consequential benefits.
8.2To direct the respondents to do the fixation of the pay of the applicant retrospectively w.e.f. 29.06.2018 in the post of Accounts Officer and thereafter release his arrear salary, increments, revised pension, gratuity and other retirement benefits with all consequential benefits.
8.3Cost of the application.
8.4To pass any such order/orders as Your Lordships may deem fit and proper.”
The applicant while serving as Sr. TOA cleared the JAO Pt. -ll Internal Competitive Examination against 40% quota in all lndia basis for promotion held in the year 2012 and his merit position was 17. However. he was not granted vigilance clearance to undergo JAO Phase- I Induction Training and consequential promotion to JAO due to pendency of criminal case i.e. C.R. Case No. 436./2003 filed by CBI.
According to applicant, the departmental proceeding initiated against the applicant containing identical charges was dropped much earlier vide order dated 03.04.2012. Finally, the applicant also got acquitted in the criminal case vide order dated 10.05.2018.
He had approached this Tribunal in the earlier round also for redresssal of his grievance and this Tribunal vide order dated 11.11.2024 directed the respondents to put up his case for promotion. The respondents assailed the order before the Hon’ble High Court vide WPC No. 4000/2016 which came to be dismissed as withdrawn and directed the respondents to comply the order dated 11.11.2014.
The grievance of the applicant is that he was granted promotion vide order dated 01.04.2019 to the post of JAO retrospectively w.e.f. 12.08.2013 on notional basis from the date of promotion of his juniors and on actual basis from 30.01.2019 i.e. the date of assumption of charge. ln the meantime, the incumbents junior to the applicant and his batchmates were promoted vide order dated 29.06.2018 to the next higher post of Accounts Officer from the feeder post of JAO.
Repeated representations submitted by the applicant on 07.12.2021. 23.1 1.2022 and on 29.03.2023 have failed to elicit any response on the part of the respondents.
Learned counsel for the applicant submits that applicant was exonerated from the charges in the departmental proceeding in the year 2012. He was acquitted in the criminal case on 10.05.2018 and he was granted promotion to the post of JAO retrospectively w.e.1. 12.08.2013 on notional basis and actual w.e.f. 30.01.2019. Therefore, when the batchmates/juniors to the applicant were promoted to the cadre of Accounts Officer vide order dated 29.06.2018, applicant is also entitled to get promotion to the cadre of Accounts Officer notionally from the date of promotion of his juniors by following the next below rule.
The respondents miserably failed to take into consideration the factual as well as legal aspect of the matter while denying the applicant his promotion to the post of AO. w.e.f. 29.06.2018. The respondents passed orders dated 01.04.2019 and 05.04.2019 promoting the applicant retrospectively as JAO w.e.f. 12.08.2013 thereby placing him at par with his batch mates who in tum were promoted as A.O. vide order dated 29.06.2018. Therefore denial of promotion to the applicant as A.O from the date of promotion of his batch mates is bad in law and violative of Article 14, 16 and 21 of the Constitution of India.
They have totally ignored his long service of 40 years in the BSNL. He has suffered, recurred financial loss on account of non-promotion to the post of A.O. By this O.A, he is praying for a direction upon the respondents to grant promotion as AO retrospectively w.e.f 29.06.2018 from the date his juniors/batchmates had been promoted with all consequential benefits.
Respondents have stated that the authorities since 13.12.2013 were keeping up with regard to grant of vigilance clearance and in view of the written undertaking by the applicant that he would not claim promotion or consequential benefits after completion of his training programme, till his vigilance clearance by the competent authority. This vigilance clearance was denied on 3.1.2014 and as such the appointment as JAO was regrettably denied on 10.1.2014 as per the Rules of the BSNL.
That, applicant is aggrieved with the order dated 01.04.2019 however, he has not challenged this order dated 1.4.2019. In his representation dated 14.2.2019 he addressed his grievance of not being promoted as AO w.e.f 29.6.2018 at par with his juniors. Therefore, it cannot be understood, if the order dated 1.4.2019 and 5.4.2019 did not address the grievances of the applicant completely, as-to how were these orders left unchallenged till date. It is settled law that reliefs not explicitly granted, may be deemed to have been denied or rejected and as such it behove the applicant to act in a timely fashion and not wait for years after his retirement to pray for an ante-dated promotion to the next higher cadre.
That, there is no axiomatic rule that promotion would accrue on fixed dates to the next higher cadre, and the applicant has failed to deal with the fact that when the prayer for promotion to the post of AO as initially made in 14.2.2019 was not granted by the higher authority i.e the SEA Cell, Corporate Office, new Delhi, then the subsequent representations to a subordinate authority i.e the CGMT, Assam Telecom Circle, could not possibly have resulted in any different outcome, more so when the applicant was no longer a part of the cadre having retired, taken his final pension etc without objecting to the rejection/non-consideration of his prayer for promotion as AO(Accounts Officer).
We have heard the learned counsel for the parties and have gone through the materials placed on record.
It is admitted position that applicant criminal case was filed by the CBI and he was acquitted and he was also exonerated from the charges in the departmental proceeding in the year 2012 and thereafter he was granted promotion to the post of JAO retrospectively w.e.f. 12.08.2013 on notional basis and actual w.e.f. 30.01.2019. Now his grievance is that, when the batchmates/juniors to the applicant were promoted to the cadre of Accounts Officer vide order dated 29.06.2018, applicant is also entitled to get promotion to the cadre of Accounts Officer notionally from the date of promotion of his juniors by following the next below rule. He made representation again for promotion. He approached this Tribunal for redresssal of his grievance and this Tribunal vide order dated 11.11.2024 directed the respondents to put up his case for promotion. The respondents assailed the order before the Hon’ble High Court vide WPC No. 4000/2016 which came to be dismissed as withdrawn and directed the respondents to comply the order dated 11.11.2014.
Our attention is drawn to the General Instructions (Annexure A/20 page 66 of the O.A) wherein it has been stated that,
“3. Action after completion of disciplinary case/criminal
prosecution.-—0n the conclusion -of the disciplinary case/criminal prosecution, or an investigation which results in -dropping of allegation or complaints against the Government servant, the sealed cover or covers shall be opened. In case the Government servant is completely exonerated, the due date of his promotion will be determined with reference to the position assigned to him in the findings kept in the sealed cover/covers and with reference to the date of promotion of his next junior on the basis of such position. The Government servant may be promoted, if necessary, by reverting the junior most officiating person. He may be-promoted notionally with reference to the date of promotion of his junior. -However, whether the officer concerned -will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent, will be decided by the appointing authority by taking into consideration all the facts and circumstances of the disciplinary proceeding/criminal prosecution. Whether the authority denies arrears of salary or part of it, it will record its reasons for doing so. It is not possible to anticipate and enumerate exhaustively all the circumstances under which such denials of arrears of salary or part of it may become necessary. However, there may he cases where the -proceedings, whether or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings -or -acquittal in-the criminal proceedings is with benefit of doubt or on -account: of non-availability of-evidence due to-the acts attributable to the employee, etc. are only some of the circumstances where such denial can be justified.”
From the above OM, it is clearly stated that in case the Government servant is completely exonerated, the due date of his promotion will be determined with reference to the position assigned to him in the findings kept in the sealed cover/covers and with reference to the date of promotion of his next junior on the basis of such position. The Government servant may be promoted, if necessary, by reverting the junior most officiating person. He may be-promoted notionally with reference to the date of promotion of his junior.
In his case, he was given promotion vide order dated 01.04.2019 to the post of JAO retrospectively w.e.f 12.08.2013 wherein his junior have been promoted to AO vide order dated 29.06.2018, which was not given to the applicant which is totally illegal and arbitrary on the part of the respondents.
The O.A is partly allowed. Respondents are directed to grant promotion to the applicant as Accounts Officer (AO) retrospectively w.e.f 29.06.2018 from the date his juniors were given promotion and do the fixation of pay and grant him the consequential benefits within a period of 03 months from the date of receipt of copy of this order. No costs.