TMI Blog2019 (3) TMI 1974X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of promotion of an officer on whom a penalty has been imposed in disciplinary proceedings, the DPC in assessing the suitability of an officer, will have to take into account circumstances leading to the imposition of the penalty and then decide whether in the light of general service record of the officer, he/she should be assessed to be fit or unfit for promotion. Further, denial of promotion to such an officer after the penalty period is over will be violation of the Article 20 of the Constitution of India provided in sub para (i) of para 7 of the guidelines extracted above. Hence, after the period of penalty is over, it was necessary for the selection committee to have assessed the suitability of the applicant with regard to his overall service record to assess his suitability taking into account the imposition of the penalty. However, during currency of the penalty, the officer would be unfit for promotion. Comparing the guidelines of the DOPT, with the internal guidelines of the UPSC dated 14.2.2014 (Annexure-R/3/1) for promotion to IAS, it is noticed that the internal guidelines of UPSC, applied by the respondent no.2 to the case of the applicant (vide the paragraph 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent no. 4 and 5 who will be affected if the reliefs sought for by the applicant are allowed. Notice has been issued to the respondents no. 4 and 5, but they did not file any pleadings. Hence, it was decided to proceed on the basis of the counter filed by the Respondents no. 2 and 3 and Rejoinder to the counters. 3. The applicant had applied to the Collector, Kondhamal for availing casual leave from 23.9.2008 to 30.9.2008 on health ground and had proceeded on leave before receiving the sanction order. It is stated in the OA although the leave was sanctioned, but a departmental proceeding was initiated vide order dated 5.6.2009 (Annexure-A/4) and inquiry was conducted. On receiving the copy of the inquiry report dated 31.3.2011, the applicant submitted his reply. Finally, the order dated 24.9.2011 (Annexure-A/6) was passed by the competent authority imposing the minor penalty of stoppage of one increment without cumulative effect. 4. It is stated in the OA that the applicant s case alongwith other officers was recommended by the Respondent no.3 for promotion to IAS for 12 vacancies for the year 2013 along with the service record. The Selection Committee headed by one of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t panel by first including the officers assessed as Outstanding , then the officers assessed as Very Good etc. It is further mentioned that as per the guidelines of the UPSC for categorization of the candidates. Methods of assessment of the candidates who have been imposed penalty in disciplinary proceedings have been specified in the guidelines of the UPSC, In this regard the para 8 of the Reply filed by the respondent No.2 (UPSC) states as under:- During the assessment of the applicant by the Selection Committee, the effect of penalty imposed on him was taken into account as per Commission s Guidelines/Procedures for Categorization. The para 4.7.1 of the guidelines read as under : 4.7.1 The Selection Committee meets to prepare the Select List for the current year only. (a) If the currency of the penalty flows into the SCM year, the officer would be graded as Unfit in the Overall Assessment for the current year. (b) If the currency/effect of the penalty lapses before the SCM year, but is having implications on any of the years in the Assessment matrix, the Committee would categorise the officer as Unfit for the relevant year(s) in the Assessment ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e guidelines that one order for imposing minor penalty can be used to deny promotion to an officer for more than one occasion. It is also stated that as per the guidelines dated 14.2.2014, it is stated that if the penalty flows into the SCM year, the officer would be graded as unfit in overall assessment. It is also submitted in the rejoinder that for the applicant, the minor penalty was imposed on 24.9.2011 for which the currency of that order would continue upto 24.9.2012 and hence, the penalty did not flow into the SCM year 2014, 2015, 2016 and 2017. The para 4.7.1. (b) of the guidelines dated 14.2.2014 provides that if currency of the penalty has lapsed before the year of assessment but it has implication on any of the years of assessment matrix, the Committee would categorise the officers as unfit for the relevant year when the penalty was current and thereafter, the overall assessment of the officer may be made as per given in section B.3 of that guidelines. It is the case of the applicant that the intention of Para 4.7.1 (b) is not that the minor penalty will be used to declare an officer unfit for the year when the penalty was not current. The CCRs of the applicant was thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the selection committee on 15.12.2016 and the selection for promotion to IAS for the year 2014 has not been disputed by the applicant in this OA, it was decided, with the consent of the learned counsel for both the parties, to go ahead with the hearing of the case even though one of us was a member of the selection committee in its meeting held on 2.7.2015. 12. Learned counsels for the applicant and respondents reiterated their respective contentions in the pleadings. Learned counsel for the applicant has also filed a Note of Submissions with the copy of the judgments in the following cases:- (i) Union of India vs- K.V. Janakiraman [AIR 1991 C 2010] (ii) State of Tamilnadu vs- Thiru K.S. Murugesan [(1995) 3 SCC 273] (iii) Collector of Thanjavur Dist. vs- S. Rajgopalan [(2000) 9 SCC 145] 13. The rule 8 of the IAS (Recruitment) Rules, 1954 provides for the recruitment by promotion of officers of State Civil Service officers to IAS and the rule 8 states as under:- 8. Recruitment by promotion or selection for appointment to State and Joint Cadre:-(1) The Central Government may, on the recommendations of the State Government concerned and in consul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereafter from amongst those similarly classified as Good and the order of names inter-se within each category shall be in the order of their seniority in the State Civil Service. Provided that the name of an officer so included in the list shall be treated as provisional if the State Government withholds the integrity certificate in respect of such an officer or any proceedings, departmental or criminal are pending against him or anything adverse against him which renders him unsuitable for appointment to the service has come to the notice of the State Government. Provided further that while preparing year-wise select lists for more than one year pursuant to the 2nd proviso to sub-regulation (1), the officer included provisionally in any of the Select List so prepared, shall be considered for inclusion in the Select List of subsequent year in addition to the normal consideration zone and in case he is found fit for inclusion in the suitability list for that year on a provisional basis, such inclusion shall be in addition to the normal size of the Select List determined by the Central Government for such year. EXPLANATION I : The proceedings shall be treated a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officers recommended by the State Government for promotion to IAS and it will not be in order to restrict their authority through internal guidelines of the UPSC which have not been circulated. 17. How imposition of a penalty on an officer is treated at the time of consideration of his case for promotion, has been provided under the para 3 of the Government of India guidelines listed after the Rule 11 of the CCS (CCA) Rules, 1965 vide serial No. 7 of the Government of India s Decisions, which states as under:- 3. As regards the other two points mentioned in paragraph 1 above, while it is not possible to lay down any hard and fast rules in this regard, and it is for the competent authority to take a decision in each case having regard to its facts and circumstances, it is considered necessary to reiterate the existing instructions on the subject. Recovery from the pay of a Government servant of the whole or part of any pecuniary loss caused by him to Government by negligence or breach of orders, or withholding of increments of pay, are also minor penalties laid down in rule 11 of the CCS (CCA) Rules. As in the case of promotion of a Government servant, who has been awarded t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d there is no arbitrariness in the process of assessment by the DPC, the court will not interfere . (b) In Union of India vs. K.V. Jankiraman case (AIR 1991 SC 2010), the Supreme Court has taken cognizance of role of DPC the case of an officer on whom a penalty has been imposed and has held that: An employee has no right to promotion. He has only 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 interest. An employee found guilty of misconduct cannot be placed on par with the other employees, and his case has to be treated differently . In fact, while considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified. (c) In UOI Anr. Vs. S.K.Goel Ors. (Appeal (Civil) 689/2007 -SLP(C)2410/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been awarded any major or minor penalty. (Refer para 6.2.1(e) and para 6.2.3 of DoPT OM dated 10.04.89) c) In case, the disciplinary/criminal prosecution is in the preliminary stage and the officer is not yet covered under any of the three conditions mentioned in para 2 of DoPT O.M. dated 14.09.1992, the DPC will assess the suitability of the officer and if found fit, the officer will be promoted along with other officers. As provided in this Department s O.M. dated 02.11.2012, the onus to ensure that only person with unblemished records are considered for promotion and disciplinary proceedings, if any, against any person coming in the zone of consideration are expedited, is that of the administrative Ministry/Department. d) If the official under consideration is covered under any of the three condition mentioned in para 2 of O.M. dated 14.09.1992, the DPC will assess the suitability of Government servant along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC including unfit for promotion and the grading awarded are kept in a sealed cover. (Para 2.1 of DoPT OM dated 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s from the date of convening the first Departmental Promotion Committee which had adjudged his suitability and kept its findings in the sealed cover. Such a review should be done subsequently also every six months. The review should, inter alia, cover the progress made in the disciplinary proceedings/criminal prosecution and the further measures to be taken to expedite the completion. (Para 4 of O.M. dated 14.09.1992) k) In cases where the disciplinary case/criminal prosecution against the Government servant is not concluded even after the expiry of two years from the date of the meeting of the first DPC which kept its findings in respect of the Government servant in a sealed cover then subject to condition mentioned in Para 5 of this Department s O.M. dated 14.09.1992, the appointing authority may consider desirability of giving him ad-hoc promotion (Para 5 of this Department s O.M. dated 14.09.1992). 8. All the administrative authorities in the Ministries/Department are advised to place relevant records, including charge sheet, if any, issued to the officer concerned, penalty imposed, etc., before the DPC/ACC who will decide the suitability of officer for promotion keep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of UPSC. It is also noticed from the Minutes of the selection committee for the year 2015, 2016 and 2017 as Annexed to the Rejoinder and the written submissions of the applicant s counsel, that the DPC has not assessed the overall performance of the applicant alongwith the penalty imposed while deciding his suitability for selection to IAS by promotion, as stated by the applicant in the OA and rejoinder and as required by the guidelines of the DOPT vide paragraphs 17 and 18 of this order. 21. In the context of the discussions above, we are of the considered opinion that the case of the applicant deserves to be reconsidered in the interest of justice, since as stated in the counter filed by the respondent No.2, the applicant s case was decided only on the basis of the fact that a penalty was imposed even though the currency of that penalty was over by the time the applicant was considered for promotion, without assessing his overall performance for the years in question as required under the DOPT guidelines referred to in the preceding paragraphs. We, therefore, set aside the order dated 5.7.2017 (Annexure-A/15) rejecting the representation of the applicant and direct the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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