1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R R.L. MEENA. V. B.S.N.L. & OTHERS. S. B. CIVIL WRIT PETITION NO.691/2008 Under Article 226 of the Constitution of India. DATE OF ORDER 30/01/2008 PRESENT HON'BLE MR. JUSTICE MOHAMMAD RAFIQ Mr.Kuldeep Mathur, for Petitioner. BY THE COURT Heard learned counsel for the petitioner. The petitioner, who is working on the post of Divisional Engineer (Planning) in the Office of the General Manager Telecom (GMT) District, BSNL, Bhilwara, has filed this writ petition with the prayer that the respondent-BSNL be directed to allow him the benefit of IDA pay upgradation pursuant to memorandum dated 15th July, 2007 w.e.f. 1st October, 2004. The learned counsel for the petitioner has argued that although according to clause (3) of the aforesaid memorandum dated 18th January, 2007, criteria for awarding the benefit of upgradation 2 is fitness which is judged by the prescribed Screening Committee on the basis of performance rating of ACRs, subject to necessary disciplinary/vigilance clearance and no punishment is current. But the petitioner has been illegally denied the aforesaid benefit. It was submitted that the petitioner was served with the charge-sheet dated 8th September, 2004, after his absorption in BSNL by the Ministry of Telecommunications & Information Technology, Department of Telecommunications (Vigilance Wing). When the inquiry was finalized, the disciplinary authority, though found the charges partly proved against him, but since the Telecommunications Wing of the aforesaid Ministry had been formed as a Company by name of BSNL, the President was no more the disciplinary authority, therefore, instead of imposing of any penalty, the charge-sheet issued to the petitioner was withdrawn. It was argued that in view of the aforesaid order dated 30th November, 2007, there was no charge-sheet pending against the petitioner as on 30th November, 2007 and, thereafter, till date, no such charge-sheet has been served to the petitioner. The petitioner participated in the aforesaid inquiry under a bona fide though erroneous impression that the Government of India could still hold inquiry against him, the inquiry proceedings were incompetent and were rightly culminated in withdrawal of the charge-sheet. The respondent be, therefore, directed to grant him benefit of IDA 3 pay scale upgradation, in pursuance to the aforesaid memorandum. Upon hearing the learned counsel for the petitioner and perusing the material forming part of the record, I find that the fact that the petitioner was issued charge-sheet on 8th September, 2004, for delinquency of the period 2000-01 when he was Divisional Engineer (Planning) at Chittorgarhis not in dispute. It is also not denied that the petitioner participated in the disciplinary proceedings and the inquiry officer found the charges against the petitioner partly proved. At the stage of imposition of penalty, however, it was discovered that due to formation of Telecommunications Wing of the aforesaid department as a Company, namely BSNL w.e.f. 01.10.2000, the President was no more the disciplinary authority. In those facts, the charge-sheet was decided to be withdrawn by order dated 30th November, 2007, with the following direction :- “NOW THEREFORE, the President has ordered that the competent disciplinary authority in BSNL shall take action for initiation of the disciplinary proceedings against Shri R.L.Meena, DE without prejudice to the action whatsoever already taken. The President has further ordered that the charge-sheet issued to Shri R.L.Meena, DE vide memo of even number dated 08/09/2004 be withdrawn.” 4 It would, therefore, be clear from above that the President, while withdrawing the charge-sheet, ordered that the competent disciplinary authority in BSNL shall take action for disciplinary inquiry against the petitioner, without prejudice to the action whatsoever already taken. A perusal of the aforesaid office memorandum would make it clear that the benefit of IDA pay scale upgradation is admissible as time-bound promotion which is not linked with availability of post. At the same time, however, the criteria of merit and suitability has not been completely done away. In fact, in the aforesaid office memorandum dated 18th January, 2007, under the caption “Upgradation Criteria”, has provided as under :- “1. xxx xxx xxx xxx xxx 2. The fitness for IDA pay scale upgradation to the next higher IDA scale of the eligible executives will be judges by prescribed Screening Committee on the basis of performance rating of ACRs, as per details given in sub-para 3 below subject to necessary disciplinary/vigilance clearance and no punishment is current.” It would be evident from the above rule that the fitness for IDA 5 pay scale upgradation to the next higher IDA scale of the eligible executives will be judged by prescribed Screening Committee on the basis of performance rating of ACRs and subject to necessary disciplinary/vigilance clearance when no punishment is current. The criteria for assessment of performance report is laid down in clause (2) of the aforesaid para. Clause (2) clearly provides that the IDA pay scale upgradation to the next higher IDA scale shall be subject to necessary disciplinary/vigilance clearance and when there is no punishment is current. In the facts of the case, when the President, while withdrawing the earlier charge-sheet, has ordered that the competent disciplinary authority shall take action for initiation of disciplinary proceedings against the petitioner, it cannot be assumed that the petitioner would have necessary disciplinary/vigilance clearance. The kind of mandamus, that has been prayed for, therefore, cannot be granted. The writ petition, which lacks in merit is, therefore, dismissed. (MOHAMMAD RAFIQ), J. scd