Orissa High Court Sets Aside CAT's Order To Promote State Civil Service Officer To IAS Due To Pendency Of Vigilance Cases Against Him
The Orissa High Court has set aside an order of the Central Administrative Tribunal (CAT) that directed for the grant of promotion to IAS (Indian Administrative Service) to State Civil Service Officers of Orissa due to the pendency of vigilance cases and departmental enquiry against him.
The Court was dealing with a writ petition filed by the Union of India challenging the order by which the Central Administrative Tribunal, Cuttack acceded to the prayer of a man to appoint him to IAS consequent upon inclusion of his name in the Select List of 2007 prepared for appointment/promotion of the State Civil Service Officers of Orissa to the IAS. The High Court considered the writ petition after the Supreme Court set aside its previous order dismissing the same and remanding the case back to the High Court for fresh consideration.
A Division Bench of Justice B.R. Sarangi and Justice G. Satapathy observed, “Out of four vigilance cases, as mentioned above, three cases were pending against opposite party no.1 when the list was prepared. Therefore, knowing fully well that there were pendency of vigilance cases, his name was included provisionally even though he was exonerated in one of the vigilance case, i.e., SBP (V) P.S. Case No. 9 dated 15.02.2003 on 15.02.2011, after his retirement from service on 31.01.2011. But in other case, i.e., BBSR (V) P.S. Case No.26 dated 30.06.2007, charge has been framed and the same is pending consideration. Therefore, the direction given for grant of promotion/induction to the opposite party no.1 to IAS w.e.f. the date when his juniors got promotion and also for grant of all consequential benefits, cannot be sustained in the eye of law.”
Central Government Counsel Debashish Tripathy represented the petitioner while Advocate D.K. Panda represented the opposite parties.
In this case, a meeting of the IAS selection committee was held in 2010 and the name of the opposite party was included in the list, but provisionally, departmental proceeding was pending against him at that time. On attaining the age of superannuation at the age of 58 years being a State Civil Service Officer, he was retired from service in 2011 and was exonerated from the charges in the departmental proceeding after he was superannuated from service. Thereafter, the appointment notification was issued by the Department of Personnel and Training (DoPT) in respect to the unconditionally included officers but, the opposite party was not appointed, as because Union Public Service Commission (UPSC) did not inform DoPT regarding his exoneration, nor declared to enter his name as unconditional.
A chargesheet was filed and the UPSC declared inclusion of the name of the opposite party as unconditional. Therefore, he approached the Central Administrative Tribunal (CAT) seeking direction to promote him to IAS and the CAT directed the DoPT to consider his case within 45 days. Another complaint was received from the State Government regarding the pendency of the other two vigilance cases against him and then the DoPT issued an order considering him as deemed provisional, but denied his appointment as IAS in view of the pending vigilance cases against him. Consequentially, opposite party filed an original application before CAT and it quashed the order denying promotion to him. Aggrieved by such an order, the Union of India was before the High Court.
The High Court in view of the above facts noted, “… it is made clear that when a select list of 2007 was prepared admittedly the name of opposite party no.1 was mentioned at sl.no.2, which was included provisionally subject to clearance in disciplinary proceeding pending against him and he was retired from State Government service on 31.01.2011. But the departmental proceeding initiated against him was closed on 15.02.2011 and he was exonerated from the charges framed against him in respect of SBP (V) P.S. Case No. 9 dated 15.02.2003. So far as BBSR (V) P.S. Case No.26 dated 30.06.2007 is concerned, charge has already been framed and the case is pending and other two cases, namely, BBSR (V) P.S. Case No.47 dated 21.12.2006 and BSSR (V) P.S. Case No. 22 dated 09.06.2008, the same are still pending and the same have not yet been decided nor charge sheet has been filed.”
The Court added that by the time the case of the opposite party was considered, the departmental proceeding was pending and during pendency of the departmental proceeding, he was retired from service. It said that even after retirement, he was exonerated from the disciplinary proceeding, it cannot ipso facto entitle him to get the benefit, as directed by the Central Administrative Tribunal by the order impugned.
“On the other hand, in BBSR (V) P.S. Case No.26 dated 30.06.2007, charge sheet has already been submitted, though in respect of BBSR (V) P.S. Case No.47 dated 21.12.2006 and BSSR (V) P.S. Case No. 22 dated 09.06.2008, charge sheet has not yet been submitted, and that itself cannot entitle the benefits to opposite party no.1 when a charge has already been framed in respect of BBSR (V) P.S. Case No.26 dated 30.06.2007”, it also said.
The Court referred to the case of Tarsem Singh v. State of Punjab, (1994) 5 SCC 392, in which the Apex Court held that promotion as understood under the service law jurisprudence means advancement in rank, grade or both and that it is always a step towards advancement to a higher position, grade or honour.
It also relied upon the case of State of U.P. v. Jalal Uddin, (2004) 8 Scale 426, in which the Supreme Court held that the promotion is advancement in rank or grade or both and an employee has no right to be promoted but he has right to be considered for promotion.
“In K. Samantray v. National Insurance Co. Ltd., (2004) 9 SCC 286, the apex Court held that no employee has a right be promoted, but has a right to be considered for promotion. … it is made clear that even if the vigilance cases were pending, keeping in view the proviso to Regulation 7 (3) of IAS (Appointment by Promotion) Regulations, 1955, the case of opposite party no.1 was considered, but due to pendency of the vigilance cases and departmental proceeding against him, his name was provisionally included in the list. But, in the meantime, he was superannuated from service on attaining the age of superannuation on 31.01.2011 and subsequent thereto, on 15.02.2011, he was exonerated from one of the vigilance cases and other three vigilance cases were pending against him, out of which in one case charge sheet has already been submitted”, it observed.
The Court concluded that the direction given by the Central Administrative Tribunal for grant of promotional benefit to opposite party cannot be sustained in the eye of law and is liable to be quashed. Accordingly, the High Court allowed the writ petition.
Cause Title- Union of India v. Gadadhar Parida and others
Appearance:
Petitioner: Central Government Counsel Debashish Tripathy
Opposite Parties: Advocates D.K. Panda, G. Sinha, and A. Mishra.
