CONSEQUENCES OF ISSUING CHARGE SHEET BEFORE IMPLEMENTATION OF THE RECOMMENDATION OF DEPARTMENTAL PROMOTION COMMITTEE FOR PROMOTION/UP GRADATION

[Mr. M. GOVINDARAJAN]

In ‘G.A. Rama Rao V. Union of India’ – 2013 (297) ELT 481 (A.P.) the petitioner is working as Assistant Commissioner in Central Excise Department. The petitioner is entitled to get financial up gradation periodically as per the service rules of the department. The petitioner in his service has obtained two up gradations and he was eligible for the third up gradation in the year 2011. The Departmental Promotion Committee (‘DPC’ for short) which met on 21.12.2011 found the petitioner eligible for being extended the benefit of third up gradation.   The recommendations of the DPC will be sent to the appointing authority, who in turn will place the officials in the upgraded scale of pay.

In the case of the petitioner before an order passing extending the benefit of up gradation by the appointing authority, a charge memo was issued to the petitioner on 27.12.2011 framing certain charges referable to his functioning in the year 2002.   The appointing authority taking into the charges framed against the petitioner did not extend the benefit of up gradation to the petitioner.

Against the rejection of his up gradation the petitioner filed a petition before the Central Administrative Tribunal, Hyderabad Bench. The petitioner contended before the Tribunal that once the DPC has cleared his case there was no basis for the Department to withhold the benefit of up gradation. The Department pleaded that though the DPC found the petitioner to be eligible for extension of the benefit by the time the orders implementing the same came to be issued charges were framed against him. The Department relied on circulars issued by the Department of Personnel and Training in this regard.   The Tribunal dismissed the application of the petitioner.

Against this order the petitioner approached the High Court.   He contended that-

• the eligibility or otherwise of an employee for promotion or other benefits is to be assessed as on the date on which DPC meets and any development that takes place subsequent thereto, would be considered only at the next stage;
• mere issuance of charge sheet that too at a later point of time does not at all provide any justification for the Department to withhold the benefit which the petitioner is otherwise entitled to.

The Department contended the following:

• the assessment by the DPC is only recommendatory in nature and it is ultimately for the appointing authority to take a final decision on the matter relating to promotion or extension of the benefit;
• the recommendation of the DPC by itself does not confer any right;
• this case is akin to the one for which sealed cover procedure can be adopted.

The High Court found that the present case presents a typical situation, which one rarely comes across.   Had the charge sheet been issued a week earlier than the date of which it emanated, the DPC would have been under obligation to consider the case of the petitioner and put its assessment in a sealed cover.   In case the disciplinary proceedings concluded and it emerged that the charges were held not proved, an occasion would have arisen for opening of the sealed cover.   If the assessment of the DPC was that the petitioner was eligible, he would not have been entitled for being extended all the benefits with retrospective effect.   On the other hand, if the assessment was that he is not eligible, the matter would have been closed at that state.

The High Court accepted the contentions of the petitioner as technically correct. However, the assessment by DPC is not the final word in the matter of pertaining to promotion or extension of the benefit of financial up gradation, as the case may be.

The High Court held that the discretion of appointing authority is somewhat circumscribed to the extent of either accepting or not accepting the recommendation of the DPC but not meddling with it otherwise.   Since 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.   The High Court was of the view that since the case is almost at twilight stage, viz., between the clearance by DPC and the issuance of consequential orders by the appointing authority no harm would done either to the petitioner or to the Department, if the sealed cover procedure is adopted in this case also.

The High Court, therefore, directed that the assessment of the DPC shall be treated as valid, but kept in a suspended animation, till the disciplinary proceedings against the petitioner are concluded.   If the charges against the petitioner are not proved, he shall be entitled to the promotion from the date on which his immediate junior was given, on the basis of the assessment made by the DPC. Or, if any punishment is imposed the result would depend upon the nature of action which the disciplinary authority takes.