IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWELTH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE G.CHANDRAIAH WRIT PETITION No.3659 of 2004 Between: B.Subba Rao. … Petitioner And Union of India thorugh Secretary (Estt.), and three others. … Respondents This Court made the following: HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE G.CHANDRAIAH WRIT PETITION No.3659 of 2004 ORDER: - (per the Hon’ble Sri Justice A.Gopal Reddy) Petitioner has obtained a rule from this Court calling upon the respondents to show cause as to why a writ in the nature of certiorari shall not be issued under Article 226 of the Constitution of India for calling up and quashing the proceedings of the Central Administrative Tribunal, Hyderabad Bench at Hyderbad dated 30.07.2002 passed in O.A.No.1463 of 2000 confirming the order No.E(O)-III-99-AE/327 dated 29.03.2000, with a consequential direction to promote the petitioner to Junior Administrative Grade with effect from 17.03.1999 with all attendant benefits including seniority, fixation of pay and arrears. The case of the petitioner is that he was initially appointed as Assistant Medical Officer (Class II) on adhoc basis in the South Central Railway and was later promoted as Divisional Medical Officer (Group- A Senior Scale) by order dated 21.05.1993. As he was qualified and eligible to promotion as Junior Administrative Grade Officer, he was nominated by the Chief Medical Director for valuation of answer sheets in connection with selection to the post of Pharmacists Grade II, in Railways. The papers were valued by the petitioner and the results of the written examination were announced based on the marks list submitted by him. Basing on such results, viva voce was held and the selection of successful candidates was empanelled. On receipt of certain complaints, the Vigilance Branch of the Department verified the records in connection with the selection to the post of Pharmacist Grade II and noticed certain irregularities in awarding and totalling of the marks in respect of three candidates by the nominated Officer i.e., the petitioner. On revaluation, it was confirmed that the totalling of the marks was irregular and, therefore, the petitioner was served with a charge memorandum vide No.P(SC)227/H/123 on 19.08.1999 by the General Manager, South Central Railway, to which the petitioner submitted his explanation. The Disciplinary Authority after considering the explanation offered by the petitioner, wherein he admitted his errors in totalling and offered sorry for the lapses, decided to impose a minor penalty on him by withholding increments due on 01.04.2000 raising his pay from Rs.12,275/- to Rs.12,600/- in the scale of Rs.10,000 – 325-15200 for a period of one year without cumulative effect vide proceedings No.P(SC)227/H/123 dated 30.09.1999. On the same day, the Departmental Promotion Committee (for short, “DPC”) to officiate in Junior Administrative Grade was held for consideration of the candidates those who have completed ten years of regular service, including the petitioner. Subsequently, the case of the petitioner was kept under a sealed cover and pursuant to the recommendations made by the Committee, 202 officers were appointed in the Junior Administrative Grade from 17.03.1999 i.e., the date of completion of ten years of regular service/date of promotion of Juniors in the railway unit vide order No.E(O)III-99/PM/56 dated 05.11.1999. Since the petitioner was not promoted as Junior Administrative Grade Officer, when several other juniors to him were promoted, he filed a representation on 07.11.1999 to 1st respondent pointing out that one Dr.T.Janardhan, who was junior to him was promoted with retrospective effect and on that date no disciplinary proceedings were pending against him nor on the date when the promotion order proceedings dated 05.11.1999 were issued promoting the officers to the post of Junior Administrative Grade. While the same is pending, 3rd respondent by proceedings No.E(O)III,PM/56, dated 06.12.1999 and by an office order No.414/1999 dated 16.12.1999, promoted the petitioner to officiate in Junior Administrative Grade with effect from 02.10.1999, holding that penalty of withholding of increment for one year without cumulative effect imposed on him may be operated in the higher grade. Petitioner again made a representation on 16.12.1999 to 1st respondent to promote him as Junior Administrative Grade Officer with effect from 17.03.1999 on par with his Juniors, to which 3rd respondent sent a reply, dated 10.04.2000 informing that his request for promotion to the post of Junior Administrative Grade Officer was examined by the Railway Board and the Board in its letter dated 29.03.2000 advised that as he was facing disciplinary proceedings, his case was kept in a sealed cover and he was promoted on 02.10.1999 after the Disciplinary Proceedings were concluded by imposing the penalty and, therefore, his request cannot be considered. To the said reply, he filed another representation on 25.4.2000 to 1st respondent pointing out that one Dr.Radhika Raman Singh was promoted to Junior Administrative Grade as per the board’s letter dated 05.11.1999 with effect from 17.03.1999 indicating that the penalty imposed on him on 10.03.1999 will be operated in the higher grade. Since the said representation has not been properly considered, the petitioner filed O.A.No.1463 of 2000 before the Central Administrative Tribunal, Hyderabad Bench questioning the rejection order passed on 29.03.2000 by 1st respondent as communicated through 3rd respondent in his letter dated 10.04.2000 and for declaration that he is deemed to have been promoted to the post of Junior Administrative Officer as Medical Superintendent with effect from 17.03.1999 on par with his juniors with all attendant benefits including seniority, fixation of pay and arrears. On counter being filed by the respondents, the Tribunal by its order dated 30.07.2002, negatived the claim of the petitioner holding that the crucial date for consideration is the date when the DPC met to adjudge the suitability of the candidates for promotion on 30.09.1999, on which date the Disciplinary Authority imposed a minor penalty of withholding of increment for a period of one year without cumulative effect. As per the terms of the amendment to the letter of the Railway Board No.E(D&A)92RG6-149(B), dated 21.01.1993 vide No.E(D&A) 92RG6-185 dated 12.02.1993 penalty of withholding of increment becomes operative from future date and the person should be promoted in his turn prospectively with reference to his position in the earlier panel of DPC and penalty imposed in promotional grade for a period which would not result in greater monetary loss. Since in the case of the petitioner, penalty imposed on 30.09.1999 was of withholding the increment due on 01.04.2000 i.e., operational from a future date and as such, promoting the petitioner to the Junior Administrative Grade prospectively with effect from 02.10.1999 is in tune with the circular instructions issued by the Railway Board. Questioning the correctness of the order passed by the Administrative Tribunal, the present writ petition has been filed by the petitioner contending that he is qualified and eligible for promotion to Junior Administrative Grade, since neither on 17.03.1999 nor on 05.11.1999 any disciplinary proceedings were pending against him. Whereas, in case of Dr.Radhika Raman Singh, he was promoted to Junior Administrative Grade Officer, as per the Board letter dated 05.11.1999, with effect from 17.03.1999 though the punishment imposed on him on 10.03.1999 was in operation. The action of 1st respondent in denying the similar benefit in case of the petitioner is ex facie, unjust, arbitrary, discriminative and violative of principles of natural justice and against the Articles 14 and 16 of the Constitution of India. The Tribunal without properly appreciating the various contentions raised by the petitioner took an erroneous view, misinterpreted the circulars and erroneously dismissed the O.A. On the date when the promotion was given effect to his juniors i.e., 17.03.1999, no disciplinary proceedings were either initiated or pending against him. As on the date when the DPC met on 30.09.1999 the disciplinary proceedings ended in imposing a minor penalty. In view of the same, sealed cover procedure would not have been resorted to and 1st respondent ought to have promoted the petitioner with effect from 17.03.1999. Therefore, the petitioner is entitled to be promoted on par with his juniors with effect from 17.03.1999. Counter affidavit has been filed on behalf of the respondents contending that as per the existing rules the officer who was denied promotion may appeal against the said imposition of penalty, if he so desires, within 45 days, but the petitioner has not appealed against the said imposition. Since the enquiry against the petitioner was pending on the date when the DPC for promotion to officiate in Junior Administrative Grade was held on 30.09.1999, 202 officers of Senior scale/Indian Medical Services have been appointed to officiate in Junior Administrative Grade from 17.03.1999 i.e. the date of completion of 10 years of regular service/the date of promotion of junior on the Railway unit, vide order dated 05.11.1999. The findings of the DPC in the case of the petitioner was kept in sealed cover in terms of the instructions contained in the boards letter No.E(D&A)92/RG-6-149(B) dated 21.01.1993 and that the disciplinary proceedings were finalised against the petitioner with imposition of minor penalty of withholding increment for a period of one year without cumulative effect, and on receipt of such penalty, railway board vide their letter No.E(O)III-99/PM/56 dated 06.12.1999 advised that the petitioner may be appointed to officiate in Junior Administrative Grade with effect from 02.10.1999. The said order is in tune with the railway boards letter No.E(D&A)92RG6-149(B) dated 21.01.1993 circulated through special circular No.12/93 dated 12.12.1993 and Serial circular No.43/96 dated 04.03.1996. Therefore, the Tribunal rightly dismissed the O.A. Sri G.Ramachandra Rao, learned counsel for the petitioner contends that the crucial date has not been taken into consideration to become operative of the above circulars. Either on the date of promoting the juniors on 05.11.1999 or on the date when they are eligible to be promoted i.e., 17.03.1999, the petitioner was not disqualified for promotion. The minor penalty which was imposed on 30.09.1999, was kept in sealed cover when the DPC met on the same day and the same will not be acted upon when the petitioner was considered for the promotion, as the same will be operative from future date i.e., from 01.04.2000. When the persons who are undergoing punishment like Dr.Radhika Raman Singh were promoted, the petitioner ought not to have been discriminated. Therefore, he is entitled for promotion to the post of Junior Administrative Grade with effect from 17.03.1999 with all attendant benefits including seniority, fixation of pay and arrears. On the other hand, Mrs.C.V.Vinitha Reddy, the learned standing counsel for the respondents supported the order of the Tribunal and the railway board in not promoting the petitioner on par with his juniors with effect from 17.03.1999. She contended that as per the guideline 3.2 of board’s letter dated 21.01.1993, in the case of promotion from Group ‘B’ to Group ‘A’ and promotion within Group ‘A’, those who were imposed with the minor penalty of withholding of increments may also be promoted prospectively in their turn with reference to their position in the earlier panel(s) of the DPC, which has been reiterated in the circular dated 02.03.1993 and the promotion of the petitioner from 02.10.1999 is in tune with the circular instructions issued by the board. It is not disputed that on the date when the DPC met, the disciplinary proceedings were finalised on the same date and were placed in a sealed cover before the DPC, which cleared the promotion of 202 officers with effect from 17.03.1999. Guideline 3.2 of board’s letter is as under: “3.2. However, in the case of adhoc promotions from Group ‘B’ to Group ‘A’ and promotion within Group ‘A’ (upto and including promotions to SA Grade) those imposed with the minor penalties of censure, stoppage of passes/PTOs recovery from pay and withholding of increments may also be promoted prospectively in their turn with reference to their position in the earlier panel(s) of the DPC. In the case of these imposed with the penalty of with-holding of increment, however, they cannot be promoted before expiry of the penalty. The pay on promotion in all those cases should be fixed under the normal rules with reference to the date of actual promotion.” In the Serial Circular No.22/93 dated 02.03.1993 it was reiterated that: “Where the penalty of withholding of increment imposed on a Railway Officer is to become operative from a future date, the person concerned should be promoted in his turn prospectively with reference to his position in the earlier panel of the DPC and the penalty imposed in the promotion grade for a period which would not result in greater monitory loss.” Further the Serial Circular No.43/96 dated 04.03.1996 for the promotions from Group ‘B’ to Group ‘A and promotions within Group ‘A’ of railway officers, it was reiterated that: “However, where the penalty of withholding of increment to become operative from a future date, the person concerned should be promoted in his turn prospectively with reference to his position in the earlier panel of the DPC and the penalty imposed in the promotion grade for a period which would not result in greater monetary loss. The pay on promotion in all these cases should be fixed under the normal rules with reference to the date of actual promotion.” The Supreme Court in Union of India v. A.N.Mohanan[1] having considered the penalty imposed on an employee upheld the orders passed by the railway board denying the promotion holding that the claim of the employee for promotion from an earlier date is unacceptable. Having regard to the fact that the petitioner was imposed with the minor penalty of withholding of increment for one year without cumulative effect by order dated 30.09.1999, effective from 01.04.2000, we are of the view that he is entitled to be promoted only for a future date, but not with retrospective effect on par with his juniors who were promoted. We also do not find any merit in the contention advanced by the learned counsel for the petitioner that Dr.Radhika Raman Singh who was promoted to Junior Administrative Grade on 17.03.1999, though he was inflicted penalty on 10.03.1999 prior to the cut off date, the petitioner is entitled to the same. It is well settled that if some person derives the benefit illegally, similar benefit on the ground of equality cannot be claimed, as the same will amount to perpetuating the illegality by judicial process, which the courts cannot entertain. In view of the same, the petitioner cannot plead discrimination. We accordingly dismiss the writ petition. No order as to costs. _____________________ (A.GOPAL REDDY, J) ____________________ (G.CHANDRAIAH, J) 12.11.2009. Lmv [1] 2007 AIR SCW 2773