Sri K.A. Venkatesh vs The State of Karnataka Department of Co-operation

Mohan M. Shantanagoudar, J.—The order dated 18.6.2013 passed in Application No. 3277/2012 by the Karnataka Administrative Tribunal (for short ''Tribunal'') is called in question in this writ petition. While the petitioner was working as Joint Director of Co-operative Societies, the Departmental Promotion Committee (for short ''DPC'') met on 16.5.2012 and recommendation was made to consider promotion of the petitioner and others. The promotion, however, was not effected in the case of petitioner, though the promotion was effected in respect of others, whose names the DPC has recommended. The reason being that a charge memo was issued against the petitioner on 30.5.2012. Thus he approached the Tribunal in Application No. 3277/2012 seeking a direction to accord promotion to him on the basis of recommendation of the DPC. The application filed by him came to be dismissed by the impugned order.

Sri Bhagwat, learned Advocate appearing on behalf of the petitioner, drawing attention to the Official Memorandum dated 14.7.1993 and the judgment of the Apex Court in the case of Union of India (UOI) and Others Vs. Sangram Keshari Nayak, , submits that the respondent is not justified in withholding promotion to the petitioner since the DPC had already recommended the name of petitioner and no enquiry was pending against him as on the date of recommendation made by the DPC.

The sum and substance of the argument of the learned counsel for petitioner is, that the date on which recommendation was made by the DPC is relevant and any departmental enquiry subsequently initiated should not be taken into consideration by the department for the purpose of promotion.

The writ petition is opposed by Sri Bajentri, learned Government Advocate appearing for the respondent by drawing attention to the Official Memorandum dated 14.7.1999 issued by the State Government by which the earlier Official Memorandum dated 14.7.1993 was amended.

There cannot be any dispute that the promotions were being effected as per the Official Memorandum dated 14.07.1993 earlier; however, certain doubts had arisen on certain points subsequently. In order to clarify such doubts, Official Memorandum was issued on 14.7.1999 by which the earlier Official Memorandum dated 14.7.1993 came to be amended to certain extent. The relevant portion of the amendment, for the purpose on hand, reads thus:

3(b) Where the Departmental Promotion Committee has recommended the promotion of a Government servant, but before he actually promoted, if disciplinary proceedings or criminal prosecution or proceedings are initiated against him, his case will be treated as if it has been placed in a sealed cover by the Departmental Promotion Committee and he shall not be promoted. Further action shall be taken in accordance with para-4 and 5, mutatis mutandis.

A plain reading of the said paragraph clarifies beyond any doubt that even if the DPC has accorded promotion of a government servant and if disciplinary proceedings or criminal prosecution or proceedings are initiated against him before actual promotion, his case shall be treated as if it has been placed in a sealed cover, which means that the recommendation of the DPC could be kept in abeyance until conclusion of such criminal case or departmental enquiry as the case may be. The aforementioned paragraph clarifies all doubts.

Strong reliance is placed on the Judgment of the Apex Court in the case of Union of India (UOI) and Others Vs. Sangram Keshari Nayak, by the learned advocate for the petitioner. In our considered opinion, the said Judgment may not be applicable to the facts of this case.

In the matter of Sangram cited supra, the employee therein was already promoted prior to service of charge memo on him. In that context, the Apex Court has decided in favour of the employee.

But in the matter on hand, the petitioner was not actually promoted as on the date of service of charge memo on him and hence the department has rightly not accorded promotion to the petitioner in view of paragraph-3(b) of the Official Memorandum dated 14.7.1993 as amended on 14.7.1999.

The promotion is not a fundamental right. Right to be considered for promotion, however, is a fundamental right. Suitability or otherwise of the candidate though must be left at the hands of DPC, the promotion has to be determined in terms of the rules applicable therefor. The recommendation of the DPC can be refused to be given effect to if the conditions mentioned in paragraph-3(b) of the Official Memorandum dated 14.7.1993 as amended on 14.7.1999 stand satisfied. Same are the observations of the Apex Court in the case of Sangram.

In the matter on hand, there is a clear bar for promoting the petitioner in view of paragraph-3(b) of the Official Memorandum dated 14.7.1999. The Tribunal thus is justified in rejecting the prayer of the petitioner. Since the departmental enquiry was initiated prior to according promotion, paragraph-3(b) of Official Memorandum dated 14.7.1999 is clearly attracted. As aforementioned, in Sangram''s case cited supra, the promotion was already accorded to the employee even prior to service of charge memo on him. In that context, the Apex Court has decided in favour of the employee.

In view of the above, no interference is called for. Petition fails and the same stands dismissed.