2013 (12) TMI 31 - HC - Indian Laws

Benefit of Financial upgradation in lieu of promotion Sealed cover procedure - Held that - The petitioner is technically correct as the process of sealed cover cannot be applied - as on the date of the consideration by DPC, no charge sheet was issued to him - the assessment by DPC is not the final word in the matter pertaining to promotion or extension of the benefit of financial upgradation - As long as the appointing authority has the power not to accept the recommendation of the DPC, may be by furnishing the reasons, which may include those, that were not in existence by the time the DPC met, the petitioner cannot be said to have derived or acquired any right, on the sole basis that DPC cleared his case - since the case is almost at twilight stage, viz., between the clearance by DPC and the issuance of consequential orders by the appointing authority there is no harm either to the petitioner or to the respondents, if the sealed cover procedure is adopted - Decided in favour of Petitioner.

Summary

Issues:
- Assessment of eligibility for financial upgradation by the Departmental Promotion Committee (DPC).
- Withholding of upgradation benefits based on subsequent charge memo issuance.
- Applicability of sealed cover procedure in the case.
- Discretion of the appointing authority in accepting DPC recommendations.
- Validity of DPC assessment pending disciplinary proceedings.

Analysis:
The judgment by the High Court of Andhra Pradesh involved a case where the petitioner, an Assistant Commissioner of Customs and Central Excise, was due for a third upgradation in 2011. The Departmental Promotion Committee (DPC) found the petitioner eligible for the upgradation. However, before the upgradation order was issued, a charge memo was served to the petitioner regarding past conduct, leading the authorities to withhold the upgradation benefits.

The petitioner contended that the charge memo issued after the DPC assessment should not affect his eligibility for upgradation, citing the Supreme Court's judgment in Union of India vs. K.V.Jankiraman. The respondents argued that the DPC's recommendation is not final, and the appointing authority has the discretion to make the final decision. They suggested the possibility of adopting the sealed cover procedure due to the unique circumstances of the case.

The court acknowledged that the petitioner was technically correct as the charge memo was issued after the DPC assessment, but emphasized that the DPC's assessment is not conclusive for promotion or upgradation. The appointing authority has the power to accept or reject the DPC's recommendation based on valid reasons, even if those reasons arise after the DPC meeting. Therefore, the court decided to keep the DPC's assessment in a suspended state until the disciplinary proceedings against the petitioner are concluded.

In conclusion, the court disposed of the writ petition by directing that the petitioner's assessment by the DPC would be considered valid but suspended until the disciplinary proceedings are finalized. If the charges are not proved, the petitioner would be entitled to the upgradation benefits based on the DPC assessment. However, if any punishment is imposed, the outcome would depend on the disciplinary authority's decision.