THE HON'BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No.17976 of 2007 Dated:06.02.2008 Between: The General Manager, Indian Government Mint, Industrial Development Area, Ranga Reddy District and two others. ..... PETITIONERS And Ravindhranath and another. .....RESPONDENTS THE HON'BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No.17976 of 2007 ORAL ORDER: (per the HON’BLE SRI JUSTICE D.S.R.VARMA) Heard Assistant Solicitor General of India, appearing for petitioners, learned counsel appearing for respondent No.1 and learned counsel appearing for respondent No.2. 2. This writ of certiorari is filed, under Article 226 of the Constitution of India, seeking to call for the records pertaining to the order, dated 20.09.2006, passed by the Central Administrative Tribunal, Hyderabad Bench at Hyderabad (for brevity “the Tribunal”), allowing O.A.No.1147 of 2004, filed by respondent No.1 herein, with certain directions, and to set aside the same. 3. Petitioners are respondent Nos.1 to 3, respondent No.1 is applicant and respondent No.2 is respondent No.4, in the O.A., before the Tribunal. 4. By the impugned order, the Tribunal had directed the petitioners herein to consider the case of respondent No.1 herein for promotion, as per the recommendations made by the Departmental Promotion Committee (for brevity “the DPC”), convened in the year 1999, if he was found eligible, and grant notional promotion to the post of Group B Gazetted, in the time scale of Rs.7450-22-11500/-, with effect from 05.11.2002 i.e., on par with his immediate junior, who was already promoted, along with all consequential benefits. 5. The relevant facts, which are to be taken into account for better appreciation of the case, are as under: - It is the case of respondent No.1 herein, before the Tribunal, that he was originally appointed as Lower Division Clerk (for brevity (“LDC”) in Government of India (Mint) on 12.04.1973, promoted as Upper Division Clerk (for brevity “UDC”) in the year 1977 and subsequently, promoted as Head Clerk, on regular basis, with effect from 30.05.1992. He was also declared to have completed his probation as Head Clerk in the year 1995, whereas respondent No.2 herein was appointed as LDC with effect from 25.04.1974, later promoted as UDC with effect from 03.09.1978, on adhoc basis, and on regular basis with effect from 23.08.1979, later as Store Keeper with effect from 13.06.1988 and thereafter, as Cashier, on regular basis, with effect from 26.12.1992, in the time scale applicable to the Head Clerk. 6. From the above dates, it is obvious that respondent No.1 herein was senior to respondent No.2 herein in all basic cadres. By order, dated 11.08.1997, respondent Nos.1 and 2 herein were promoted as Deputy Accountants, on adhoc basis, and the services of respondent No.1 herein were regularized as such with effect from 11.08.1997, whereas the services of respondent No.1 herein were regularized with effect from 23.04.2001, on the ground that he was earlier issued a charge sheet, dated 13.07.1993, for certain irregularities related to negligence, etc. Pursuant thereto, an enquiry was conducted, which, eventually, ended with a censure, vide order, dated 12.01.1999. 7. While so, in the year 1999, the DPC had been convened, but, the case of respondent No.1 was kept in a sealed covered on the ground that on acceptance of guilt by him, it was proposed to impose the penalty of withholding of his promotion for a period of six months and however, he was given an opportunity of making a representation. Accordingly, respondent No.1 had submitted a representation, dated 03.04.2001, requesting the authority to drop the proposed penalty on humanitarian grounds due to the trauma he suffered and also keeping in view his ill-health and domestic problems for the past two years. 8. Considering the said representation of respondent No.1, the proposed penalty of deferring the promotion for six months was converted into a penalty of censure by order, dated 30.05.2002, and again, an order, dated 03.06.2002, was issued treating the penalty of censure as deemed to have undergone by him for a period of six months with effect from 23.10.2000. 9. Since the penalty was imposed on respondent No.1 herein consequent to the outcome of disciplinary proceedings, and the sealed cover was neither opened nor acted upon, in the next DPC, convened on 23.09.2002 and 24.09.2002, the case of respondent No.1 herein was considered and was recommended for promotion to the post of Deputy Accountant with effect from 23.04.2001, on regular basis, with retrospective effect on regular basis. 10. Here, an important aspect to be noted is, as on the date of DPC, convened in the year 1999, for Group-B gazetted post, respondent No.1 herein did not possess the required qualifying service for promotion as per the Rules. In view of the decision of the DPC, convened in the year 2002, the case of respondent No.1 was recommended for promotion to the post of Deputy Accountant with effect from 23.04.2001. In other words, the case of respondent No.1 herein would have been considered for promotion to Group-B gazetted post, in the DPC, convened in the year 1999 itself, had there been no disciplinary proceedings initiated against him. 11. In this context, it is to be borne in mind that, initially, the department had taken a decision to defer the promotion of respondent No.1 for six months, but, on a representation made by him, the proposed punishment of deferment of promotion was transformed into that of censure by order, dated 30.05.2002. 12. Therefore, till September, 2002, the case of respondent No.1 herein could not fall for consideration before the DPC for two reasons, firstly, as on the date of earlier DPC, convened in the year 1999, there was an order of censure, recorded against him, and secondly, the recommendations made by the DPC for his promotion to the post of Deputy Accountant were kept in a sealed cover, on the ground that initiation of departmental proceedings were on the unveil. The said procedure adopted by the DPC by keeping his name in the sealed cover was not subjected to challenge. However, in the next DPC, which was convened in the month of September, 2002, another proposed decision of deferment of promotion for six months came to the shore, which, eventually, was converted into that of a censure by order, dated 30.05.2002. Therefore, on both the occasions, the case of respondent No.1 was under cloud. 13. In this regard, it is to be noticed that so far as keeping the case of respondent No.1 in a sealed covered by the DPC, convened in the year 1999, on the ground that departmental proceedings were likely to be initiated, is concerned, it cannot be, in fact, sustained on the ground that no charge memo was issued nor any proceedings were initiated against him. It was rather on a mere premise, perhaps, having gone into the confidential reports, which, again, were not communicated to respondent No.1 herein, the DPC, convened in the year 1999, had taken a decision to keep his name in a sealed cover. But, unfortunately, the said procedure adopted in the year 1999 had remained unchallenged. 14. When, for the second time, there was another proposal of deferment of promotion for six months, the reaction of respondent No.1 herein was making a representation, dated 03.04.2001. 15. The reasons shown in the said representation, dated 03.04.2001, submitted by respondent No.1 herein for consideration of his case, are necessary to be noted. 16. In the said representation, respondent No.1 herein had requested that his case may be considered because of the mental trauma suffered by him about the order of censure, passed against him earlier, and also keeping in view his ill-health and family problems. From the above pleading, in the said representation, it could be seen that, obviously, respondent No.1 herein did not resist or protest the order of censure recorded against him. As a matter of fact, from the language and the tenor of the said representation, it could be perceived that it was only a mercy petition rather than a petition contesting the case of the appointing authority. 17. Notwithstanding the above, another opportunity had arisen in the month of September, 2002, when the DPC had met, and it is, again, to be seen that the department had contemplated deferment of his promotion of respondent No.1 herein for six months, which was again transformed into that of censure, by order, dated 30.05.2002. However, the DPC, which met on 23.09.2002 and 24.09.202, had considered the case of respondent No.1 herein for promotion to the post of Deputy Accountant with effect from 23.04.2001, perhaps keeping in view the censure, recorded against him through the order, dated 30.05.2002. 18. Even the said order was also not challenged by respondent No.1 herein under the Administrative Tribunals Act, within the period prescribed, or, at least, within a reasonable period thereafter. As a matter of fact and as is borne out from the record, the O.A., was filed after three and half years. 19. It is settled law that mere making of representations to the competent authority, from time to time, seeking consideration of his case favourably is not sufficient to cure the defect or the latches. The respondent No.1 herein ought to have approached the Tribunal, at an appropriate time, or, at least, within a reasonable period. Nothing of that sort had happened on either of the occasions i.e., when the DPC was convened, in the year 1999, or, on the next occasion, when the DPC was convened, on 23.09.2002 and 24.09.2002. 20. Therefore, the only inference that can be drawn by this Court is that respondent No.1 herein had accepted his promotion to the post of Deputy Accountant with effect from 23.04.2001, as recommended by the DPC, in September, 2002. 21. In the O.A., the grievance of respondent No.1 herein appears to be that the sealed cover was not opened since 1999 and the Tribunal, having considered the facts and circumstances of the case, however, directed respondents therein, petitioners herein, to open the sealed cover and to consider the case of respondent No.1 herein for promotion, if he was found eligible. 22. In this context, it is to be remembered, as already pointed out, that the action of the petitioners herein in keeping the name of respondent No.1 herein in a sealed cover in the year 1999 remains unchallenged and he also accepted the promotion to the post of Deputy Accountant, as per the recommendations made by the DPC, in the month of September 2002, since the same was not challenged. 23. In those circumstances, it is not open for respondent No.1 herein to claim total advantage by seeking consideration of his case for promotion with effect from the date from which his junior, respondent No.2 herein, was promoted initially to the post of Deputy Accountant on 11.08.1997. 24. In this regard, it is pertinent to note that, in the year 1997, both respondent No.1 and respondent No.2 were promoted as Deputy Accountants, on adhoc basis. Appointment, on adhoc basis, does not confer any right on the incumbent who was so promoted. But, however, so far as respondent No.2 is concerned, his services were regularized with effect from his initial appointment, on adhoc basis, at a later point of time, i.e., precisely on which date respondent No.1 herein was under the cloud of censure. 25. In fact, minor punishment of censure, which is lower in rank, cannot and shall not hamper the promotional avenues of an incumbent, but, still, when the case of respondent No.1 herein was kept in a sealed cover, in the light of certain remarks in the Confidential reports and also in view of the contemplated departmental enquiry, the said procedure adopted by the DPC, in the year 1999, in fact, is not acceptable to us. 26. But, we cannot express any view in favour of respondent No.1 herein, at this length of time, inasmuch as, the said action was not challenged by him and it is too late of the day to go into that aspect, in view of the facts, contemplating deferment of promotion for six months, which was converted into that of censure again, and later, his case being considered by the DPC, convened in the month of September 2002, and that promotion was accepted by him with effect from 23.04.2001 to the post of Deputy Accountant, which, again, was not questioned, and, on the contrary, it was accepted. 27. As already pointed out, the eligibility for group-B Gazetted post was five years of service in the earlier category i.e., Deputy Accountant. When respondent No.1 herein had accepted his promotion with effect from 23.04.2001, as decided by the DPC, convened in the month of September 2002, his services in the category of Deputy Accountant shall have to be necessarily computed with effect from 23.04.2001 only, in which event, his case would and should be considered for Group-B Gazetted post in the year 2006, i.e., after completion of five years of his service as Deputy Accountant. 28. But, it is on record that respondent No.1 herein was promoted as Group-B Gazetted Officer with effect from 20.06.2007. This shows that he was not given due promotion in the year 2006, and, on the other hand, the same was delayed by more than a year in promoting him to the Gazetted post. 29. For the foregoing, the reasoning given by the Tribunal, in the impugned order, cannot be accepted, particularly, in view of the conduct of respondent No.1 herein. It is hit by the principles of latches on both the occasions. However, the injustice caused to respondent No.1 herein has to be rectified to the extent permissible under law. 30. As was already point out, respondent No.1 herein was due for promotion to the post of Group-B gazetted, after completion of five years of service as Deputy Accountant with effect from 23.04.2001, as was decided by the DPC, convened in the year 2002, and was accepted by him. 31. In view of the abovementioned facts, the writ petition is liable to be allowed with a direction to the petitioners to consider the case of respondent No.1 herein for the purpose of promotion, after completion of five years of service as Deputy Accountant with effect from 23.04.2001, with all consequential benefits, to which he is eligible, pursuant to such consideration, as directed above. 32. Subject to the above observations and directions, the writ petition is allowed, setting aside the impugned order, dated 20.09.2006, passed by the Central Administrative Tribunal, Hyderabad Bench at Hyderabad, in O.A.No.1147 of 2004. However, there shall be no order as to costs. _______________________ JUSTICE D.S.R.VARMA _____________________ JUSTICE K.C.BHANU 06TH FEBRUARY 2008 DR