IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.13653 of 2003 Date of decision: 23.03.2010 Parveen Kumar Mahajan ….Petitioner versus The National Bank for Agriculture & Rural Development (NABARD) through its Managing Director, Bombay and others. …Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ------ Present: Mr.Vipin Mahajan, Advocate, for the petitioner. None for the respondents. ----- 1. Whether reporters of local papers may be allowed to see the judgment? No 2. To be referred to the reporters or not? No 3. Whether the judgment should be reported in the digest? Yes ----- K.Kannan, J (Oral) 1. The petitioner complains through the writ petition the denial of promotion to him from the post of Officer Scale-I to Officer Scale-II with all consequential benefits. It is an admitted case that the criteria of selection was seniority-cum-merit and the petitioner being the senior most was entitled for consideration to the promotion post, but he had been wrongly denied the promotion. The defence to the petitioner's action is that there was a pending enquiry against him at the time when the Interview Committee had considered the case of the petitioner for promotion and in view of the pendency of the charges against him, the decision of the Interview Committee had been kept in a sealed cover. Civil Writ Petition No.13653 of 2003 - 2 - The enquiry to the charge ultimately resulted in issuing a caution but even then the petitioner could not be still promoted, for, since the DPC had not recommended the petitioner for promotion which fact was known when the sealed cover was opened. The petitioner was informed of this decision and the petitioner had challenged the decision to the intra-departmental Appellate Authority and he had also rejected his plea. Hence, this writ petition. 2. The contention of the learned counsel appearing for the petitioner is that if there was an occasion to invoke the sealed cover procedure by virtue of the pendency of the charge-sheet, it should have been only with reference to a pending charge against him. The charge- sheet had indeed been issued against the petitioner on 09.02.1999 and the result of such enquiry was issued on 07.01.2000 when the management had decided to 'Caution' and to be careful in future and that any repetition of such lapses in future might attract punishment. The learned counsel for the petitioner would submit that a caution is not in the same league as reprimand or punishment and, therefore, the Management could not have refused to him the promotion. He would submit that there was no basis for the Interview Committee not to recommend him for promotion since the criterion was seniority-cum-merit. The principle of seniority-cum-merit would lend primacy of consideration to seniority and the merit factor could be relevant only to the extent that he fulfills the basic bench mark for consideration for promotion. The learned counsel further points out that yet another charge which had been issued against him was in respect of a period beyond the assessment year of 1994-95 to Civil Writ Petition No.13653 of 2003 - 3 - 1996-97 for an act of irregularity/lapse of the year 1999 when a show cause notice was issued on 28.09.2000 and a decision that had been taken on 18.10.2000 reprimanding him. That could not have been a subject of consideration for the Bank to refuse him promotion for it related to a period which was not in the reckoning for promotion. 3. The learned counsel also would submit that the issue of a sealed cover procedure bears relevance only when the Interview Committee had found him eligible for promotion but still the decision could not be made to take effect during the pendency of a charge against him. If promotion itself had not been recommended to him, there was no need to encapsulate such a decision in a sealed cover. In the written statement it is contended that seniority-cum-merit would include a fitness that will have a bearing to the conduct of a candidate against whom there was no disciplinary action pending or none was being contemplated. The 'mode of selection' as prescribed in the promotion policy has been set out in the written statement as under :- “MODE OF SELECTION: Interview and assessment of performance appraisal reports for the preceding three years period as officer for promotion. Further, for selection, non selection rule of seniority- cum-merit has to be applied. This rule envisages promotion by seniority with due consideration to minimum merit/fitness prescribed. Fitness implies that there is nothing against an officer: no disciplinary action is pending against him and none is contemplated. The officer has neither been reprimanded nor any adverse remarks have been conveyed to him in the reasonable recent past.” Civil Writ Petition No.13653 of 2003 - 4 - 4. By reference to this, the contention of the respondent through the written statement was that the petitioner could not have been considered as fit for promotion. This contention cannot be valid since the merit fitness quotient will have to be applied only for the relevant period of the assessment of 1994-95 to 1996-97. I have already pointed out that in 2000, a Caution issued for an act in the year 1999 for a pending charge at the time of consideration by the Interview Committee cannot amount to a reprimand and a reprimand that was issued on 18.10.2000 for an act subsequent to the assessment year again could not have been relevant. The denial of promotion to the petitioner, under the circumstances, is not justified and the petitioner is entitled to the relief as sought for in the writ petition. The petitioner shall be treated as having been promoted w.e.f. 05.05.2000 the date when the decision for promotion from Scale-I to Scale-II had been made and given effect and the petitioner shall also be entitled to seniority with all monetary benefits accruing to such promotion post. 5. The writ petition is allowed on the above terms. (K.KANNAN) JUDGE 23.03.2010 sanjeev