IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Writ Petition No.44 of 2008 (O&M) Date of Decision : March 23, 2011. Vipan Kumar Pari .....Petitioner versus Punjab Gramin Bank and another ....Respondents CORAM : HON'BLE MR.JUSTICE SURYA KANT. Present : Mr.K.L.Arora, Advocate for the petitioner. Mr.N.C.Sahni, Advocate for respondent No.1. -.- 1. Whether Reporters of Local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? --- Surya Kant, J. (Oral) The petitioner seeks a mandamus to direct the respondents to consider and promote him from Clerical cadre to Officer Scale-1 cadre w.e.f. the date his juniors have been promoted. 2] The respondent-bank has filed its reply-affidavit maintaining that in view of the subsequent charge sheet dated 19.04.2003, served upon the petitioner in which he has been held guilty and a punishment of stoppage of two annual increments imposed, he is not entitled to promotion to Officers Scale-1 cadre. 3] After hearing learned counsel for the parties at some length on 28.01.2011, the following order was passed: “The petitioner was serving the respondent-Bank as a Clerk-cum-Cashier at the relevant time. He was C.W.P.No .44 of 2008 2 eligible to be considered for promotion to Officers Scale-1. The Departmental Promotion Committee considered the case of all the eligible Clerks including of the petitioner on 2nd November, 2000. The DPC recommended the promotion of petitioner and some of his juniors which was approved by the Board on 30th April, 2001. The junior to the petitioners were then promoted w.e.f. 31.12.2000. However, before the petitioner could be promoted, a charge-sheet was issued to him on 3rd April, 2001. It is the admitted case that pursuant to a regular enquiry, the petitioner was exonerated and the charges against him were dropped on 4th January, 2003. It would, thus, be seen that there was absolutely no adverse material against the petitioner as on the date when the DPC met i.e. on 2nd November, 2000 and/or on the date when the recommendations made by the DPC were approved by the Board on 30.04.2001. The petitioner, prima facie, ought to have been promoted from the date when his juniors were promoted i.e. w.e.f. 31.12.2000. However, the petitioner's promotion was again withheld as meanwhile another charge-sheet dated 19th April, 2003 was issued to him wherein he was held guilty and the punishment of stoppage of two increments was imposed. It appears that the subsequent misconduct in relation to which the disciplinary proceedings were initiated vide charge-sheet dated 19th April, 2003 could have no bearing on the petitioner's claim for promotion as on 2nd November, 2000 or on 30th April, C.W.P.No .44 of 2008 3 2001. However, without expressing any final view at this stage and as prayed for by learned counsel for the Bank, the matter is adjourned to 01.03.2011 to enable him to have fresh instructions in the matter”. 4] In deference thereto, it is stated by learned counsel for the respondent-Bank that the bank authorities have expressed their inability to reconsider or promote the petitioner as they are bound by the circular dated 21.07.2006 (Annexure R-1/A) issued by the Central Vigilance Commission, Government of India, the relevant part whereof, as relied upon by the respondent-Bank, reads as follows: “.....3. The Commission has also noticed that sometimes the disciplinary authorities misinterpret the Supreme Court judgment in the case of K.V.Jankiraman etc. vs. Union of India, regarding adopting sealed cover procedure on the recommendations of departmental promotion committee for certain categories of officials. In this regard, DOPT has already issued instructions/clarifications vide letter No.22011/4/91- Estt(A) dated 14.9.92 clearly stating that in accordance with the Supreme Court ruling in the K.V.Jankiraman etc. vs. Union of India case, the findings of the departmental promotion committee in respect of the following categories of officials would be kept in a sealed cover:- (i) Government servants under suspension; (ii) Government servants in respect of whom a charge-sheet has been issued and disciplinary proceedings are pending; and (iii) Government servants in respect of whom C.W.P.No .44 of 2008 4 prosecution for a criminal charge is pending. 4. The above instructions also provide that a Government servant who is recommended for promotion by the DPC but in whose case any of the above circumstances arise after the date of receipt of recommendation of the DPC but before he is actually promoted, would be considered as if his case had been placed in a sealed cover by the DPC. He shall not be promoted until he is completely exonerated of the charges against him”. (emphasis applied) 5] Learned counsel for the parties have been again heard and the records perused. 6] In my consider view, the objection raised by the respondent- Bank is wholly untenable and is based upon total misconstruction of the subject circular dated 21.07.2006. Suffice it to mention that as per the above-stated circular, an employee who has been recommended for promotion by the Departmental Promotion Committee but “before he is actually promoted”, if he is placed under suspension; or a charge-sheet is issued to him; or prosecution for criminal charge is pending, in that event such employee shall not be promoted and his case shall also be placed in a sealed cover. 7] Ordinarily, there can be no quarrel with the guidelines laid down vide the above stated circular, namely, that if an employee comes under some clouds of disciplinary proceedings soon after he is recommended for promotion, it shall be in public interest for the C.W.P.No .44 of 2008 5 Competent Authority to await for the outcome of such proceedings and keep the promotion in abeyance. 8] The facts of the case in hand as noticed in the order dated 28.01.2011, are altogether different. The petitioner's claim for promotion was considered on 02.11.2000 and recommendations made by the DPC were approved by the Board of Directors on 30.04.2001. The petitioner's juniors were later on promoted w.e.f. 31.12.2000. The relevant period in the case of the petitioner was from November, 2000 to April, 2001 when the Board of Directors approved the proceedings of the DPC. No charge- sheet was contemplated or issued to the petitioner at that time. It was after a long period of three years that a charge-sheet dated 19.04.2003 was issued in which the petitioner was held guilty and punished. The Central Vigilance Commission circular dated 21.07.2006 cannot be stretched to empower firstly to with-hold the promotion and meanwhile dig out a charge-sheet and deny the promotion. The interregnum period referred to in para 4 of the circular dated 21.07.2006 has to be a reasonable period commencing from the date of receipt of the recommendation for promotion upto the consequential actual promotion of the employee. It is meant to deal with a situation where an employee's promotion case is in the pipeline and meanwhile some serious misconduct on his part is detected. 9] That being so, the writ petition is allowed and the order dated 28.01.2011 is made absolute with a direction to the respondent-Bank to consider the petitioner's case for promotion w.e.f. the date his juniors were promoted. The petitioner shall be entitled to all the consequential benefits C.W.P.No .44 of 2008 6 also. The needful be done within a period of four months from the date of receiving a certified copy of this order. Dasti. March 23, 2011 (SURYA KANT) Mohinder JUDGE