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Judgment
Rajiv Sharma, Judge
The respondent-Federation has issued an advertisement for filling up the posts of Manager Marketing and Procurement. One Shri Vijay Thakur was appointed as Manager Marketing and Procurement pursuant to the interview held on 20th September, 1995. Petitioner was also offered appointment as Manager Marketing and Procurement vide order dated 25.05.1996 vide Annexure A-2. Shri Vijay Thakur was regularized as Manager Marketing and procurement vide office order dated 18th May, 1998. The name of the petitioner was also recommended by the Departmental Selection Committee for regularization in its meeting held on 2nd September, 2000. However, the regularization orders were not issued. Petitioner approached the learned erstwhile Himachal Pradesh State Administrative Tribunal for implementation of the recommendations made by the Departmental Selection Committee by way of O.A. No. 908 of 2001. The same was withdrawn on 18.12.2003. Petitioner was regularized on 23.12.2003. The representation made by the petitioner has been rejected by the State Government on 4th February, 2005.
Mr. Sanjeev Bhushan, learned counsel for the petitioner has strenuously argued that his client ought to have been regularized w.e.f. 18.05.1998. He has also argued that as per the Recruitment and Promotion Rules notified on 19th November, 1997, the initial cadre has to consist of the incumbents already working against the post of Manager Marketing and Procurement subject to their fulfilling the educational and other requirements. He further argued that the case of the petitioner has been recommended by the Departmental Selection Committee in his meeting held on 2nd September, 2000, but the same has been given effect only on 23rd September, 2003. He lastly contended that the rejection of the representation made by his client on 4.02.2005 is also laconic.
Mr. Vikas Rathore, learned Deputy Advocate General and Mr. Tara Singh Chauhan, learned counsel for respondent No. 2 have vehemently argued that the petitioner could not be given retrospective promotion and, moreover, according to them, the post has to go to the candidates belonging to S.C. category as per roster.
I have heard the learned counsel for the parties and gone through the pleadings carefully.
The post has been advertised in the year 1995. The interviews were held, which led to the appointment of the petitioner as Manager Marketing and Procurement against the temporary post in the pay scale of `2000-3500/-. His appointment was on contractual basis. The service committee of the respondent-Federation has approved the staff structure as per Annexure R-II on 20.04.1996, whereby two posts of Manager Marketing and Procurement existed. Thereafter, the respondent-State has framed the rules called ''The Himachal Pradesh State Cooperative Wool Procurement and Marketing Federation Ltd. Shimla-9, Manager Marketing and Procurement, Class-II Recruitment and Promotion Rules, 1997. As per the Recruitment and Promotion rules, notified on 19.11.1997, the cadre strength is two, rule 10 whereof reads thus:
Method of recruitment - By direct recruitment. Whether by direct recruitment However, the initial cadre or by promotion, deputation, consist of the incumbents transfer and the percentage of already working against these vacancies to be filled in by posts, subject to their fulfilling various methods. the educational and other requirements.
It is clear from the plain language employed in Rule-10 that the initial cadre has to consist of the candidates already working against the post of Manager Marketing and Procurement. Petitioner was already working as Manager Marketing and Procurement on the date when these Rules were notified on 19.11.1997. He was to be automatically placed in the cadre of Manager Marketing and Procurement since he was fulfilling the educational and other requirements. The respondent-Federation ought to have taken a decision according to Rule-10 in letter and spirit. However, the fact of the matter is that the respondent-Federation has regularized the services of Shri Vijay Thakur w.e.f. 18.05.1998 as Manager Marketing and Procurement. Case of the petitioner has been recommended by a duly constituted Departmental Selection Committee in its meeting held on 2nd September, 2000. Mr. Tara Singh Chauhan, learned counsel for respondent No. 2 has vehemently argued that on that day, F.I.R. was registered against the petitioner. He further submitted that the recommendations made by the Departmental Selection Committee dated 2nd September, 2000 could not be implemented due to the pendency of F.I.R.. It is clear from Annexure A-5 that the F.I.R. registered against the petitioner was cancelled by the learned Additional Sessions Judge-I, Kangra at Dharamshala vide order dated 6th October, 2003.
The law on the subject is that it is only in those cases where charges have been framed in criminal proceedings and departmental proceedings, the proceedings of the Departmental Promotion Committee are to be kept in a sealed cover. In the instant case, only F.I.R. was registered. Neither any charge-sheet was issued to the petitioner for initiating the departmental proceedings nor at any given time, the charges were framed against him.
Their Lordships of the Hon''ble Supreme Court in Union of India Vs. K.V. Jankiraman, etc. etc., have held as under:
On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/ charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc., does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it would not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy. It was then contended on behalf of the authorities that conclusions Nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusions are as follows:
(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official;
(2) ....
(3) ....
(4) ...the sealed cover procedure can be resorted only after a charge memo is served on the concerned official or the charge sheet filed before the criminal court and not before;
There is no doubt that there is a seeming contradiction between the two conclusions. But read harmoniously, and that is what the Full Bench-has intended, the two conclusions can be reconciled with each other. The conclusion No. 1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/ criminal proceedings are pending against the employee. To deny the said benefit they must be at the relevant time pending at the stage when charge-memo/charge-sheet has already been issued to the employee. Thus read, there is no inconsistency in the two conclusions.
In view of the definitive law laid down by the Supreme Court and the observations and discussions made hereinabove, the recommendations made by the Departmental Selection Committee were to be given effect from due date instead of postponing it to 23rd December, 2003. The representation made by the petitioner has also been rejected without a speaking order on 4th February, 2005. It is settled law by now that any order which has civil consequences, must be speaking and detailed. There is no merit in the contention of Mr. Vikas Rathore, learned Deputy Advocate General and Mr. Tara Singh Chauhan, learned counsel for respondent No. 2 that the post in question has to be filled up from the candidate belonging to S.C. category according to roster. In view of Rule-10 of the Recruitment and Promotion Rules, 1977, all the incumbents, who were working as Manager Marketing and Procurement, were required to be incadred/ regularized instead of holding subsequent D.P.Cs.. Two posts of Manager Marketing and Procurement as per Recruitment and Promotion Rules and even as per Annexure R-II were in existence at the time when the rules were promulgated on 19.11.1997.
According to Rule-10, rather the petitioner and Vijay Thakur were required to be deemed to have been appointed on regular basis as Managers Marketing and Procurement from the date of issuance of notification dated 19.11.1997. However, since Shri Vijay Thakur has been regularized w.e.f. 18.05.1998, the petitioner is entitled to be regularized w.e.f. 18.05.1998 only.
Accordingly, in view of the observations and discussions made hereinabove, Annexure A-8, dated 4th February, 2005 is quashed and set aside. The petitioner will be deemed to have been regularized as Manager Marketing and Procurement w.e.f. 18.05.1998 with all the consequential benefits. The needful shall be done within a period of ten weeks from the date of production of a certified copy of this judgment by the petitioner. The pending application(s), if any, also stands disposed of.