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CSIR’s Appeal Dismissed and Overturns P&H HC’s judgement on Promotion Reversal of Two Employees by: Supreme Court

Case Title: Director General, Council of Scientific and Industrial Research (CSIR) v. J.K. Prashar & Ors.

Case No: SLP(Civil) No(s). 8310-8311 of 2020

Decided on:  29th January, 2024

CORAM: THE HON’BLE MR. JUSTICE PAMIDIGHANTAM SRI NARASIMHA  AND HON’BLE MR. JUSTICE SANDEEP MEHTA

Facts of the Case

The Director General of the Council of Scientific and Industrial Research (CSIR) has filed an appeal against the judgment of the High Court of Punjab and Haryana. The High Court had overturned the promotion of two employees to the position of Under Secretary, citing a violation of the Council of Scientific and Industrial Research Administrative Services (Recruitment & Promotion) Rules, 1982 (Statutory rules). CSIR contested the High Court’s decision, asserting that one of the employees lacked eligibility for the Under Secretary promotion as they had never independently performed the duties of a Section Officer. CSIR supported its claim with certificates indicating that the two employees were granted one year’s experience as Section Officers for their promotion to the Under Secretary position.

Issue

The key issue revolves around the eligibility criteria for the promotion of two employees to the position of Under Secretary at the Council of Scientific and Industrial Research (CSIR), with the Director General challenging the High Court’s decision based on the alleged violation of statutory rules.

Court’s analysis and decision

The Supreme Court declined to intervene in the Punjab and Haryana High Court’s decision, which had annulled the promotion granted by CSIR to its two employees. Justices Pamidighantam Sri Narasimha and Sandeep Mehta asserted that there were no obstacles for the promotion of respondent No.1 to the position of Under Secretary under the statutory rules. The court upheld the High Court’s reversal of the appellant’s action in denying promotion to respondent No. 1. The justices noted that the certificates indicated the utilization of their services as Section Officers on attachment, without any formal appointment to the position. Additionally, the court addressed the appellant’s argument that promotion to the post of Under Secretary should be based on merit, pointing out that the promotion of respondent Nos. 2 & 3 was also contested by the High Court. The Supreme Court, agreeing with the High Court, concluded that there were no impediments for the promotion to the post of Under Secretary under the statutory rules. Consequently, the appeals were dismissed by the Supreme Court.

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Written by- Afshan Ahmad

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Period Of Unauthorised Absence Is Treated As ‘Non- Duty’ For All Purposes Except Pension: High Court Of Kerala

Title: G.K.Reddy Versus DCIT

 Citation: WP(C) NO.35727 OF 2019

Decided on: 19th  Of October 2023

Introduction:

Petition is to issue a writ of certiorari, quashing document to the extent to which it denies promotion to the petitioner as Senior OCIOA and promotes the  respondent as Senior OCIOA. To declare that petitioner is entitled to be promoted to the post of Senior OCIOA in the retirement vacancy of Sri.P.A. Sasidharan and that he is entitled to be promoted to the post of programmer ahead of the respondent. And to request a writ of mandamus directing other respondents to promote him to the post of programmer.

Facts:

The petitioner was appointed as Lower Division Clerk (for short ‘LDC’) and was promoted as Upper Division Clerk/Shed Clerk and thereafter as Operator cum Input/ Output Assistant (for short OCIOA). His appointment as OCIOA was on 30.12.1999 and he was included as Rank No.4 out of 13 candidates for promotion to the post of Senior OCIOA/Programmer. submitted that the  respondent who had lesser marks than the petitioner was included as rank No.12 in the list.

By virtue of the Recruitment Rules as it stood in 2016, the post of Senior OCIOA is to be filled up by promotion from the post of OCIOA with two years regular service or from Accountant with three years regular service. The petitioner contends that the  respondent who was his immediate senior in the seniority list of OCIOA was punished for unauthorised absence from 01.05.2015 to 18.05.2015.

It is contended that due to treating of the said period of 18 days as non- duty, the respondent became junior to the petitioner and it was the petitioner who ought to have been promoted as Senior OCIOA. The petitioner relying on several judgments contended that the right to be considered for promotion is a fundamental right.

in State of Punjab v. Dr.P.L. Singla [2008(3) KHC 968], it is contended that when the period of unauthorised absence is found after conducting due disciplinary proceedings and the period is specifically treated as unauthorised absence and ‘non-duty’ for all purposes except pension, then, the period cannot be taken into account for any purposes except pension.

Court’s decision and Analysis:

it is clear that the parties are in agreement that the provisions of the Fundamental Rules and the Central Civil Services (Pension) Rules and the principles contained therein apply to the service in question. there is a clear distinction between a person who holds a lein to a post and a person who is deemed to be on duty in the post. When a period of unauthorised absence is treated as ‘non- duty’ for all purposes except pension, the consequence would be that the period will not constitute a break in service for the purpose of pension and the officer will not lose his lein in the post. However, he cannot treat the period as duty for any other purpose including seniority.

The contention of the petitioner that the said period cannot be treated as duty for reckoning seniority is liable to be accepted in view of the fact that order has become final without any challenge being raised by the respondent. In the result, the order is set aside. There will be a direction to the respondents to consider the claim of the petitioner for promotion to the post of Senior OCIOA in preference to the respondent, treating the period of service of the respondent from 01.05.2015 to 18.05.2015 as non-duty for the purpose of reckoning seniority.

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Written by- Sushant Kumar Sharma

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Delhi High Court set aside the Show cause notice and allowed the writ of mandamus as DG’s displeasure is not a penalty stated in Rule11 of the CCS (CCA) Rules, 1965

Title: RAJDEEP CHOWDHARY Versus UNION OF INDIA AND ORS.

Reserved on: April 25, 2023

Pronounced on: July 14, 2023

+ W.P.(C) 8135/2019

CORAM: HON’BLE MR. JUSTICE SURESH KUMAR KAIT

     HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

Introduction

Delhi High Court set aside the Show cause notice and allowed the writ of mandamus directing the promotion of petitioner to the post of Deputy Commandant, if found eligible.

Facts of the case

The petitioner asserts that while employed by the 66th Battalion of the BSF as Assistant Company Commandant, he was also administratively searching for two more platoon jobs. An FIR with the number 306/2012, under Sections 8/221/29/25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) was filed in Jaisalmer, Rajasthan on August 8, 2012, alleging the arrest of four civilians in Jaisalmer City with 8 kg of heroin and $4.35 million in Indian currency that had been smuggled from Pakistan during the previous night of August 4, 2012, to August 5, 2012.

Inspector General (IG) (Head Quarter), BSF, Jodhpur directed a staff court of inquiry to look into how the heroin entered the specified region. Nothing indicated any carelessness or laziness on the part of those in charge.

The Deputy Inspector General (DIG) SHQ, BSF advised the IG (HQ) that the investigation was finished and that no one should be held accountable until the investigation is over or the incidence has been verified by the police in light of the aforementioned inquiry report dated 6.11.2012.

The IG (HQ) on 30.05.2013 advised action against the petitioner for his involvement in failing in appropriate dominance, disregarding the report dated 06.11.2012 and suggestion of the DIG (SHQ) dated 10.12.2012. The petitioner herein was one of six BSF employees who were subject to the disciplinary process, and the DIG, BSF, recorded evidence against them on December 14, 2013.

After reviewing the material, the relevant DIG wrote his observations dated 09.04.2015 and noted that there was no evidence to support the accusation brought against the petitioner.

In the current appeal, the petitioner expresses his unhappiness about receiving a show cause notice from the DIG on May 12, 2016, even though the DG had already made the statements indicated above on April 9, 2015.

Analysis of the court

This Court notes that a staff court of inquiry was launched against the petitioner and other BSF officials in response to the filing of FIR No. 306/2012 under Sections 8/221/29/25 of the NDPS Act, and in an opinion dated November 6, 2012, it was determined that no one in charge acted carelessly or laxly.

Being dissatisfied with the recommendations, the IG recommended action against the petitioner and ROE and Addl. ROE were recorded. Although the petitioner was advised to be dismissed for the relevant offence in the Court of Enquiry dated 10.12.2012 and Recommendations dated 09.04.2015, he was still served with a Show Cause Notice dated 12.5.2016 for a preliminary intended transfer of the DG’s dissatisfaction. The petitioner submitted a response on May 18, 2016, in response to the aforementioned Show Cause Notice from May 12, 2016, and on June 24, 2016, he submitted a request asking for a promotion from April 1, 2014. However, the petitioner’s 18 May 2016 reply to the aforementioned Show Cause Notice of 12 May 2016 was denied by decision dated 22 July 2017 and he was informed of the DG’s “Displeasure”.

Now, the issue that has to be decided by this Court is whether the petitioner may be denied the promotion owing to the DG’s “displeasure”, especially after the case brought against him has been recommended to be dropped. This Court has reviewed the Minutes of DPC Meeting dated 19.02.2014 and 19.02.2015, where the “pendency of ROE” and not “displeasure” is cited as the grounds for continuing the petitioner’s case.

The petitioner bases his argument on the ruling in O.P. Nimesh (Supra), in which the petitioner, a DIG (Medical) in the BSF, requested promotion to the rank of IG (Medical) effective the day his subordinate received promotions. In the aforementioned matter, this Court made notice of two reasons for consideration: first, the DPC had indicated that the petitioner had received two grades below benchmark in the DPC’s APAR for the year 2012–2013; second, the DG’s “displeasure” statement was also cited in detail.

Both the petitioner in O.P. Nimesh (Supra) and the petitioner in front of this court have cited an OM from the Ministry of Home Affairs dated March 27, 2015, which states that “displeasure” is not a penalty stated in Rule 11 of the CCS (CCA) Rules.

In O.P. Nimesh (Supra), this Court held that “displeasure” was not a barrier to the petitioner’s promotion there and ordered the respondents to hold a review DPC and evaluate the petitioner’s case in accordance with the rules because the aforementioned OM dated 27.03.2015 had already been notified when DPC in the said case was held on 15.07.2015.

In our perspective, the petitioner was originally given the all-clear in 2012 itself. However, disciplinary process against the petitioner started on June 8, 2013, and the DIG made statements stating on April 9, 2015 that there was no proof shown against the petitioner based on the evidence presented. Reading through copies of the minutes from the DPC meetings on 19.02.2014 and 19.02.2015 reveals that his case was not taken into consideration for promotion because of the phrase “Due to pending ROE.”

Relevantly, the petitioner received the DG’s “displeasure” via a show cause notice from the DIG on 12.05.2016. In his reply on 05.06.2016 to the aforementioned Show Cause Notice from 12.05.2016, the petitioner conveyed the DG that there was no direct or indirect implication against him in the FIR in question. However, vide order dated 22.07.2016, the DIG rejected petitioners request dated 24.06.2016 conveying him DG’s “displeasure”.

The OM dated 27.03.2015, which specifies that “displeasure” is not a penalty stated in Rule11 of the CCS (CCA) Rules, 1965, has previously been made known. Moreover, “displeasure” has not been recorded against the name of the petitioner in the minutes of meetings that were conducted on February 19 and 20, 2014 and 2015, respectively. Additionally, respondents have not proven that the petitioner’s APARs in 2014 and 2015 fell short of the benchmark, which would have prevented him from being promoted.

The DPC played a significant role in assessing the cases of applicants for promotion, as observed by the Honourable Supreme Court and this Court in a number of rulings. A applicant’s overall effort, performance, and assiduity must also be taken into consideration in addition to the APARs for the pertinent years, particularly when a candidate is being overlooked while his or her juniors are receiving promotions.

In our considered opinion, petitioner case stood deferred for promotion in the years 2014 and 2015 due to pendency of ROE and having been given clean chit, he deserves to get promotion from the date it actually became due to him. 

In view of above-said, the present petition is allowed. In the light of OM dated 27.03.2015, the Show Cause Notice dated 12.05.2016 and order dated 22.07.2016 conveying “displeasure” by the respondents, are set aside. Naturally, if the petitioner meets the requirements, he will be elevated from Assistant Commandant to Deputy Commandant with effect from April 1, 2014, the date his juniors were promoted, and will get all related perks.

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Written By – Shreyanshu Gupta

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