TMI Blog1991 (8) TMI 292X X X X Extracts X X X X X X X X Extracts X X X X ..... as delivered by SAWANT, J. Civil Appeals Nos. 3019/87, 3020/87 and 3016/88 arise out of the judgment dated March 2, 1987 delivered by the Full Bench of the Central Administrative Tribunal (hereinafter referred to as the 'Tribunal'). Civil Appeals Nos. 3018/87 and 3021187 arise out of the judgments dated April 24, 1987 and April 1, 1987 respectively of the Tribunal, Hyderabad Bench. Civil Appeals Nos. 3083/90 and 4379/90 arise out of the judgments dated March, 2, 1989 and September 15, 1989 of the Madras and Hyderabad Bench of the Tribunal respectively and which are based on the aforesaid decision of the Full Bench of the Tribunal. Civil Appeals Nos. 51-55 of 1990 arise out of the decision dated July 12, 1989 of the Tribunal, Chandigarh Bench. Special Leave Petition (C) No. 1094 of 1990 arises out of the decision dated June 29, 1989 of the Tribunal; Bombay Bench. Special Leave Petition (C) No. 2344 of 1990 arises out of the decision dated 18th September, 1989 given by the Tribunal, Principal Bench, New Delhi. Special Leave Petition (C) No. 11680 of 1991 arises out of the decision dated January 25, 1991 given by the Tribunal, Principal Bench, New Delhi. 2, The common questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs are kept in the sealed cover, the vacancy which might have gone to the officer concerned is filled only on an officiating basis. If on the conclusion of the departmental/court proceedings, the officer concerned is completely exonerated, and where he is under suspension it is also held that the suspension was.wholly unjustified, the sealed cover is opened and the recommendations of the DPC are acted upon. If the officer could have been promoted earlier, he is promoted to the post which is filled on an officiating basis, the officiating arrangement being terminated. On his promotion, the officer gets the benefit of seniority and fixation of pay on a notional basis with reference to the date on which he would have been promoted in the normal course, but for the pending disciplinary/ court proceedings. However, no arrears of salary are paid in respect of the period. prior to the date of actual promotion. The Memorandum goes on to state further that it was noticed that sometimes the cases in the courts or the departmental proceedings take unduly long time to come to a conclusion and the officers undergo considerable hardship, even where it is not intended to deprive them of promotio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be payable to him for the period .of notional promotion proceeding the date of actual promotion. If any penalty is imposed on the officer as a result of the disciplinary proceedings or if he is found guilty in the court proceedings against him, the findings in the sealed cover/covers shall not be acted upon. The officer's case for promotion may be considered in the usual manner by the next D.P.C. which meets in the normal course after the conclusion of the disciplinary/court proceedings. The existing instructions provide that in a case where departmental disciplinary proceedings have been held under the relevant disciplinary rules, "warning" should not be issued as a result of such proceedings. If it is found as a result of the proceedings that some blame attaches to the officer, then the penalty of censure at least should be imposed. This may be kept in view so that no occasion arises for any doubt on the point whether or not an officer has been completely exonerated in disciplinary proceedings held against him." Clause (iv) of Para 3 of the Memorandum then lays down the procedure for ad hoc appointment of the concerned officer when the disciplinary/court .proceedings are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 860 decided on September 26, 1986, the Government of India in the Deptt. of Personnel Training issued another' Office Memorandum No. 22011/2/86. Estt. (A) dated January 12, 1988, in supersession of all the earlier instructions on the subject including the Office Memorandum dated 30th January, 1982 referred to above. There is no difference in the instructions contained in this and the earlier aforesaid Memorandum of January 30, 1982, except that this Memorandum provides in paragraph 4 for a six-monthly review of the pending proceedings against the Government servant where the proceedings are still at the stage of investigation and if as a result of the review, the appointing authority comes to the conclusion on the basis Of material and evidence collected in the investigation till that time, that there is no prima facie case in initiating disciplinary action or sanctioning prosecution, the sealed cover is directed to be opened and the employee is directed to be given his due promotion with reference to the position assigned to him by the the DPC. A further guideline contained in this Memorandum is that the same sealed cover procedure is to be applied where a Government servant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorities that conclusions nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusions are as follows: "(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official; (3) ................................................ (4) the sealed cover procedure can be resorted only after a charge memo is served on the concerned official or the charge sheet filed before the criminal court and not before . ' ' There' is no doubt that there is a seeming contradiction between the two conclusions. But read harmoniously, and that is what the Full Bench has intended, the two conclusions can be reconciled with each other. The conclusion no. 1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the stage when charge-memo/charge-sheet has already been issued to the employee. Thus read, there is no inconsistency in the two conclusions. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pletely exonerated and is not visited with the penalty even of censure indicating thereby that he was not blame worthy in the least, he should not be deprived of any benefits including the salary of the promotional post. It was urged on behalf of the appellant-authorities in all .these cases that a person is not entitled to the salary of the post unless he assumes charge of the same. They relied on F.R. 17(1)' of the Fundamental Rules and Supplementary Rules which reads as follows: "F.R. 17(1) Subject to any exceptions specifically made in these rules and to the provision of sub-rule (2), an officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties: Provided that an officer who is absent from duty without any authority shall not be entitled to any pay and allowances during the period of such absence." It was further contended on their behalf that the normal rule is "no work no pay". Hence a person cannot be allowed to draw the benefits of a post the duties of which he has not discharged. To allow him to do so is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in every case when an employee is exonerated in disciplinary/ criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the administration and jeopardise public interests. We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal. While, therefore, we do not approve of the said last sentence in the first sub-paragraph after clause (iii) of paragraph 3 of the said Memorandum, viz.. "but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion", we direct that in place of the said sentence the following sentence be read in the Memorandum: "However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent, will be decided by the concerned authority by taking into consideration all the facts and circumstances of the disciplinary proceeding/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so." To this extent we set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sealed cover. According to us, the Tribunal has erred in holding that when an officer is found guilty in the discharge of his duties, an imposition of penalty is all that is necessary to improve his conduct and to enforce discipline and ensure purity in the administration. In the first instance, the penalty short of dismissal will vary from reduction in rank to censure. We are sure that the Tribunal has not intended that the promotion should be given to the officer from the original date even when the penalty imparted is of reduction in rank. On principle, for the same reasons, the officer cannot be rewarded by promotion as a matter of course even if the penalty is other than that of the reduction in rank. An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of a misconduct cannot be placed on par with the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal has rightly directed the authorities to open .the sealed cover and if the respondent was found fit for promotion by the DPC, to give him the promotion from the date his immediate junior Shri M. Raja Rao was promoted pursuant to the order dated April 30, 1986. The Tribunal has also directed the authorities to grant to the respondent all the consequential benefits. The Tribunal has further stated in the impugned order that its order would not mean that the disciplinary proceedings instituted against the respondent-employee should not go on. We see no reason to interfere with this order. The appeal, therefore, stands dismissed. In the circumstances of the case, however, there will be no order as to costs. Civil Appeal No. 302 1 of 1987 In this case, the DPC did not consider the case of the respondent-employee for crossing efficiency bar w.e.f. 14th September, 1983 on the ground that disciplinary proceedings were contemplated against him. We are, therefore, of the view that the Tribunal's direction that the DPC should be convened to consider the case of the respondent for crossing the efficiency bar w.e.f. 14th September, 1983 on the basis of his confidential record at the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... results in a sealed cover because of the pending dis.ciplinary proceedings. Admittedly, no charge-memo was served.On the employee till the date the DPC met on February 1, 1988 it was issued only in March 2, 1989. The Tribunal has,-therefor rightly directed the authorities tO open the sealed cover. We are, however, unable to understand the direction of the Tribunal to convene a Review DPC for considering the employee's case as on February 1 1988. If the DPC had considered the case of the employee on February 1, 1988 and withheld the result because of the pending disciplinary proceedings, the proper direction would have been to ask the appellant-authority to open the sealed cover and if the employee was found fit for promotion, to direct the authority to promote him from the date on which his immediate junior was promoted as a result of the recommendation of the DPC on February 1, 1988. In case he is so found fit, he would be entitled to the benefits of seniority etc. on a notional basis. However, whether he. would be entitled to the arrears of salary for the intervening period and to what extent will have to be decided by the appellant authority in the light of what we have state ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts of the present case and also in directing all benefits to be given to the employees including payment of arrears of salary. We are of the view that even 'if the results in the sealed cover entitle the employees to promotion from the date their immediate juniors were promoted and they are, therefore, so promoted and given notional 'benefits of seniority etc., the. employees in no case should be given any arrears of salary. The denial of the benefit of salary will, of course, be in addition to the penalty,.if any,. imposed on the employees at the end of the disciplinary proceedings. We, therefore, allow these appeals as above with no order as to costs. S.L.P. (Civil) No. 1094 of 1990 Special leavegranted. The respondent-employee in this case was a Sepoy in the Department of Central Excise and Customs. He passed his Departmental examination for the post of Lower Division Clerk against 10% vacancies and by letter of October 14, 1981, he was informed about his selection for the said post against the said vacancies reserved for educationally qualified Group-D staff. However, he was informed that. his appointment order as L.D.C. would be issued if he was exonerated from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erved upon the respondent-employee. However, 12 persons. junior to him were promoted by an order dated April 16, 1990. The Tribunal has, as stated above, therefore, made the impugned order. There is .no direction in the order to pay him the arrears of salary for the interregnum. In the circumstances of the case, we do not think it necessary to interfere with the impugned order. The appeal, therefore, stands dismissed. In the circumstances of the case, however, there will be no Order as to costs. S.L.P. (Civil) No. 2344 of 1990 Special leave granted. The peculiar facts in this case are that at the relevant time the respondent-employee was working as Superintending Engineer since July 1986. When earlier he was working as Garrison Engineer in Bikaner Division, there was a fire in the Stores in April 1984 and there were also deficiencies in the Stores held by: the Store-keeper during the 'period between 1982 and 1985. Hence, disciplinary proceedings were commenced in February 1988 and the respondent was served with a charge-sheet on February 22, 1988. By an order of August 19, 1988 a penalty of withholding of increment for one year was imposed on the respondent as a result of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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