IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 15088 of 2008 Judgment reserved on : 01.12.2010 Date of decision : . 04.01.2011. Rajeshwar Singh Kanwar …Petitioner. Versus H.P.State Financial Corporation ....Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Petitioner : Ms. Jyotsna Rewal Dua, Advocate. For the Respondent : Mr. Ashwani K. Sharma, Advocate. Kuldip Singh, Judge The petitioner has prayed mainly the following reliefs in the petition:- (1) Respondents may kindly be directed to hold a review DPC within a time bound schedule for considering promotion of the applicant as Deputy Manager w.e.f. 1.4.1993 and as Manager w.e.f. 1.4.1998 i.e. the dates his juniors were so promoted and for giving him all consequential benefits such as seniority, salary etc. arising from said promotion. (2) To hold that the disciplinary cases vide charge sheet memos dated 21.8.1990 and 20.2.1991 and the criminal case registered on the basis of FIR 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 No. 55/90 dated 8.10.1990 will not be a ground to declare the applicant as unfit for promotion. 2. The brief facts of the case are that petitioner was placed at serial No. 1 in the seniority list of Class-A officers of the respondent-Corporation as Assistant Manager on 30.1.1999. The petitioner was due for promotion as Deputy Manager/Manager, the DPC met on 11 to 13.7.2000 for considering the promotions, conducted interviews of 26 officers. The petitioner also appeared before DPC. The petitioner was not promoted to the post of Deputy Manager, even though 8 persons junior to petitioner in the seniority list dated 30.1.1999 were promoted as Deputy Manager and further as Managers w.e.f. the dates mentioned in annexure attached with office order dated 19.10.2001 as Annexure A-2. 3. The DPC adopted sealed cover procedure for petitioner on account of pendency of criminal case and disciplinary proceedings in two cases vide chargesheets dated 21.8.1990 and 20.2.1991. The sealed cover procedure adopted by DPC was illegal, therefore, petitioner filed O.A. No. 3087 of 2002. The Corporation during the pendency of O.A. No. 3087 of 2002 issued office order dated 14.3.2006, disciplinary proceedings initiated against the petitioner vide memo dated 21.8.1990 were dropped and report of the Inquiry Officer was accepted. The Inquiry Officer had reported that the charges against the petitioner were not proved. 4. On 5.6.2006 the petitioner was informed that sealed cover adopted by DPC in its meeting held on 11 to 13.7.2000 was opened by the competent authority and as per the assessment 3 made by the said committee, the petitioner was found unfit for time scale promotion. The petitioner submitted representation dated 14.6.2006 against the communication dated 5.6. 2006. The petitioner vide communication dated 3.10.2006 was informed that the disciplinary proceedings against him vide memo dated 20.2.1991 were also dropped and the inquiry report was accepted in which the Inquiry Officer had reported that the charges against the petitioner were not proved. 5. The respondent vide office order dated 2.11.2006 promoted the petitioner as Deputy Manager w.e.f. 21.12.2004 by DPC held in December, 2004. On opening of the sealed cover, O.A. No. 3087 of 2002 was withdrawn by the petitioner with liberty to file fresh petition when the petitioner came to know that he was not promoted earlier on the ground of being unfit for promotion. The erstwhile Tribunal on 28.2.2007 permitted the petitioner to withdraw O.A. No. 3087 of 2002 with liberty to file fresh petition. In these circumstances, the petitioner has filed the present petition. 6. The grievance of the petitioner is that disciplinary proceedings against petitioner have been closed and, therefore, petitioner is entitled to promotion from the dates his juniors were promoted as Deputy Managers and Managers. There is no justification, ground to deny the promotion to the petitioner as Deputy Manager and Manager in absence of disciplinary proceedings, penalty and more particularly when his juniors have been promoted. The subject matter of the charge sheet dated 21.8.1990 was also the subject matter of FIR dated 8.10.1990. The charge sheet with respect to FIR was filed on 3.3.1999 but petitioner 4 was not charge-sheeted, the court has also not framed any charge against petitioner. The respondent had refused to grant sanction to prosecute the petitioner in case arising out of the aforesaid FIR. 7. The respondent itself considered the petitioner for promotion to the post of Deputy Manager in November, 2006 and he was promoted as such on 21.12.2004. This also indicates that there was nothing against the petitioner when he was earlier ignored for promotion as Deputy Manager and Manager. 8. The DPC found the only reason for adopting the sealed cover procedure as pendency of criminal case against the petitioner. The criminal case was still pending when the sealed cover procedure was opened vide communication dated 5.6.2006. It is not understandable why the sealed cover procedure was opened lateron and why it was not opened at the earlier occasion. This has caused gross mis-carriage of justice, mental torture and harassment to the petitioner. It has been submitted that under these circumstances, a review DPC was required to be held to consider the case of the petitioner for promotion from the date when his juniors were promoted as Deputy Managers and Managers. 9. The petition is contested by respondent by filing reply. It has been stated that the DPC in its meeting held on 11th, 12th and 13th July, 2000 while considering time scale promotions as per Recruitment and Promotion Policy of the Corporation had adopted sealed cover procedure in the case of petitioner in view of pendency of vigilance case. On re-examination of the matter, the sealed cover containing the recommendations of the DPC was opened and it was found that DPC had assessed the petitioner as unfit for time scale 5 promotion as Deputy Manager and Manager from 1.4.1993 and 1.4.1998 respectively. The respondent was not bound to hold review DPC for considering the case of the petitioner for promotion to the higher post in view of dropping of disciplinary cases against him. The sealed cover procedure was adopted by the DPC in view of pendency of vigilance case and not in view of the pendency of disciplinary case. 10. It has been stated that Bihari Lal appearing at serial No. 5 of seniority list of Assistant Managers, Annexure A-1 and Hari Singh another Assistant Manager appearing at serial No. 14 in the same seniority list of Assistant Managers were found unfit for promotion as Deputy Managers. It has been admitted that the persons junior to petitioner were promoted as Deputy Managers and Managers. 11. The revised Recruitment and Promotion Policy of the Corporation was notified on 3.11.1999 as Annexure R-2 which provided for the time scale promotions. This policy was effective from 1.4.1993. In terms of Recruitment and Promotion policy, the meeting of DPC was held on 11th to 13th July, 2000 for considering the time scale promotions of eligible employees retrospectively from 1.4.1993. The DPC had earmarked 25 marks each for ACRs and performance of officer in the interview. The petitioner was also considered by the DPC for promotion as Deputy Manager w.e.f. 1.4.1993 and Manager from 1.4.1998, but in view of vigilance case pending in the Court against him, the DPC adopted ‘Sealed Cover Procedure’ in his case. 6 12. The Board of Directors of the Corporation in the meeting held on 17.9.2002 has decided to hold in abeyance the time scale promotion policy in managerial cadre retrospectively from 5.12.2001. Therefore, no time scale promotions were considered by the respondent-Corporation after 17.9.2002. 13. In November, 2004, a meeting of DPC was held to consider the vacancy based promotions to the posts of Deputy Managers when the petitioner was considered, the assessment of DPC in his case was also placed in sealed cover in view of pendency of vigilance case. In view of representation dated 14.6.2006 of the petitioner and on re-examination of the matter, the sealed cover assessment of the petitioner for his vacancy based promotion to the post of Deputy Manager adopted by the DPC in its meeting held on 30.11.2004 was also opened in October, 2006 and in view of the assessment made by the DPC, the petitioner was promoted to the post of Deputy Manager retrospectively from 21.12.2004. The respondent has denied the claim of the petitioner. 14. The petitioner has filed rejoinder. It has been stated that the Kandaghat Court,Camp at Solan on 13.8.2010 has ordered that petitioner herein has not been charge-sheeted. The summons to him were issued inadvertently, his presence in the case was not required and he was discharged. The petitioner on the basis of satisfactory service record was found fit by the DPC during December 1992 for giving an increment for crossing the efficiency bar, but subsequently in 2000 found him unfit for getting time scale promotion for that very period. The ACRs of the petitioner were not properly considered. He has been down graded by re-writing the 7 grades. The petitioner reiterated his stand taken in the petition and refuted the defence set up by the respondents. 15. I have heard the learned counsel for the parties. The DPC record was also called and it was examined. The learned counsel for the petitioner has reiterated the stand of the petitioner and the learned counsel for the respondent has submitted that initially the sealed cover procedure was adopted by the DPC. On representation of petitioner and re-examination of the matter, the sealed cover assessment made by the DPC was opened, the petitioner was not found fit for promotion as Deputy Manager and Manager as on 1.4.1993 and 1.4.1998. The case of the petitioner was considered objectively. This court is not sitting in appeal over the assessment made by the DPC, the petitioner is not entitled to any relief prayed in the petition. 16. The second relief prayed in the petition is inconsequential and has rather become redundant in view of the stand of respondent itself. The departmental proceedings against the petitioner on the basis of memos dated 21.8.1990 and 20.2.1991 have been dropped and the proceedings have been closed by the respondent. In criminal case arising out of FIR No. 55 of 1990 dated 8.10.1990, no charge has been framed against the petitioner, rather stand of the petitioner is that the Kandaghat court, Camp at Solan on 13.8.2010 has observed that notice to the petitioner was inadvertently issued in the case. It emerges from the record produced by the Corporation that the Corporation had refused to grant sanction to prosecute the petitioner in that case. Thus, in 8 these circumstances, the relief No.2 prayed by the petitioner, noticed above, has become infructuous. 17. Insofar relief No.1, noticed above, is concerned, the case of the petitioner is that he was wrongly ignored by the DPC. He was wrongly superseded by his juniors for promotion as Deputy Manager and Manager on 1.4.1993 and 1.4.1998 respectively. The learned counsel for the respondent has relied upon Clause 12 of the Revised Policy prescribed for Recruitment and Promotion to various posts in the Corporation (for short ‘Revised Policy for Recruitment and Promotion’) . He has emphasized sub clause (v) of Clause 12. The Clause 12 relied by the learned counsel for the respondent is as follows:- “12. Asstt.Manager (Tech.) By way of Direct Recruitment only (` 7220-10980) ------------------------------------ --------------------------------------------- i) The candidate should possess atleast 2nd class degree in BE/ME in any discipline or its equivalent. ii) The candidate should possess 3 years relevant experience. In future the Managerial cadre in H.P.Financial Corporation will have 6 levels and be known as Assistant Manager, Deputy Manager, Manager, Assistant General Manager, Deputy General Manager and General Manager (in the respective disciplines wherever applicable). Time scale promotion may be considered from Assistant Manager to Deputy General Manager (in all disciplines) after a span of five years service at each stage with the following conditions:- i) to iv) xx xx xx v) Time scale promotion would be considered by the selection committee as provided in the Recruitment & Promotion Policy on the basis of 9 ACRs weightage system and performance of Officer in the interview to be conducted by Selection Committee. Time Scale Promotion shall be allowed only to those officers who are considered fit by the Selection Committee.” 18. It has not been pointed out on behalf of the respondent that in revised policy for Recruitment and Promotion any bench mark has been fixed for the DPC for recommending the Officers/Officials for promotions. It has also not been pointed out from the record of DPC that before making assessment of the officers, the DPC had fixed some bench mark for clearing the officer for promotion as Deputy Manager and Manager. The only criteria fixed by the DPC was assessment of the officers on the basis of their ACRs and interview for which 25 marks each were fixed without indicating or fixing any minimum marks required for promotion. It is not a case where for example one post was available for promotion and more than one officer was to be considered for promotion by DPC, then obviously the officer who would get more marks will be promoted in case no bench mark for obtaining minimum marks were fixed in the rules etc. 19. The perusal of DPC proceedings indicate that the petitioner had obtained 24 marks, Mehar Singh, Assistant Manager 24 marks. Sita Ram, Deputy Manager 24 marks, H.R. Negi, Assistant Manager 23 marks. In the DPC proceedings, Bihari Lal, Assistant Manager had obtained 25 marks and Hari Singh, Assistant Manager 18 marks. Rajeshwar Singh(petitioner), Bihari Lal and Hari Singh were not promoted. The petitioner was found unfit for further promotion as per separate statement prepared by DPC and opened on 4.5.2006. However, in the joint assessment of 10 the officers against petitioner, it has been written “vigilance case is pending in the court, proceedings minutes placed in sealed cover.” The combined reading of the joint assessment of the officers wherein name of the petitioner has been shown and the separate statement opened on 4.5.2006 showing the details of petitioner indicate that petitioner was found unfit for further promotion due to vigilance case pending in the court and the minutes were placed in the sealed cover. 20. As noticed above, the respondent itself refused to grant sanction to prosecute the petitioner, he was not charge-sheeted in any criminal case. Two departmental proceedings arising out of memos dated 21.8.1990 and 20.2.1991 were dropped against petitioner. In these circumstances, no foundation was left for ignoring the petitioner for promotion as Deputy Manager and Manager w.e.f. 1.4.1993 and 1.4.1998 respectively on the basis of revised policy for recruitment and promotion. 21. There is yet another angle of the case. It is not the case of the respondent that Mehar Singh, Assistant Manager, Sita Ram, Deputy Manager and H.R.Negi, Assistant Manager who were given 24, 24 and 23 marks respectively at the time of their assessment for promotion by the DPC, were not promoted. The perusal of Annexure A annexed with office order dated 19.10.2001 Annexure A-2 indicates that Mehar Singh was promoted as Deputy Manager on 1.4.1993 and Manager on 1.4.1998 and H.R.Negi was promoted as Deputy Manager on 1.5.1993 and Manager on 1.5.1998. The petitioner was awarded 24 marks at the time of his assessment by DPC, he was not promoted. The grounds on which the promotion 11 was not given to the petitioner was not left. Therefore, the petitioner could not be ignored for promotion when his juniors were promoted vide Annexure A-2 as Deputy Managers and Managers. The petitioner was later on promoted as Deputy Manager on 2.11.2006 w.e.f. 31.12.2004 but in the facts and circumstances of the case, the petitioner has made out his case for promotion as Deputy Manager and Manager alongwith others vide Annexure A attached with office order dated 19.10.2001 Annexure A-2. 22. The learned counsel for the respondent has relied Nutan Arvind (Smt.) vs. Union of India and another (1996) 2 SCC 488 on the point that when a high-level committee had considered the respective merits of the candidates, assessed the grading and considered their cases for promotion, the court cannot sit over the assessment made by the DPC as an appellate authority. There is no dispute with the contention raised by the learned counsel for the respondent, but the question in the present case is different. The DPC did not recommend the case of the petitioner for promotion on the basis of vigilance case. The foundation for not recommending the case of the petitioner for promotion was not left when respondent itself refused to sanction prosecution of the petitioner, he was not charge-sheeted by the court, the departmental inquiries against the petitioner were closed. The Recruitment and Promotion Policy as well as the DPC has not fixed any bench mark for promotion. It is not the case of the respondent that the officers, who have secured similar marks or even marks below the petitioner were not promoted, in these circumstances, the refusal of the DPC and ultimately of the respondent not to promote the petitioner as Deputy 12 Manager and Manager on 1.4.1993 and 1.4.1998 respectively is arbitrary, discriminatory and not sustainable. 23. No other point was urged. 24. The result of the above discussion, the petition is allowed. It is held that the petitioner was wrongly, illegally and arbitrarily ignored for promotion as Deputy Manager and Manager on 1.4.1993 and 1.4.1998 respectively by respondent on the basis of recommendation of DPC held on 11th to 13th July, 2000, which is not sustainable. The respondent in the light of above decision, is directed to convene review DPC within two months from the date of supply of copy of this judgment by petitioner for considering the case of the petitioner for promotion as Deputy Manager and Manager on 1.4.1993 and 1.4.1998 when his juniors were promoted in accordance with the Revised Policy prescribed for Recruitment and Promotion to various posts in the Corporation. The review DPC so convened shall consider the case of the petitioner for promotion as Deputy Manager and Manager as aforesaid and shall give its recommendations in one month from the date of convening the review DPC and respondent on receiving the recommendation of review DPC, shall take appropriate decision within further one month with all consequential benefits flowing therefrom to the petitioner. No costs. ( Kuldip Singh ), January 4, 2011. Judge. (GR)