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TMI Blog2006 (8) TMI 659X X X X Extracts X X X X X X X X Extracts X X X X ..... vil). The promotion was to be effective from 1.9.05 or the date of assumption of charge of the post, whichever is later. The aforesaid order required the officers selected to take charge within a period of one month from issuance of notification in the Gazette of India. According to the petitioner, he became entitled to be immediately posted as Superintending Engineer (Civil) upon issuance of the letter dated 30.8.05. However, respondent No. 3 with malafide intentions neither sent a copy of the order to the petitioner nor issued any posting orders in respect of the petitioner though he issued posting orders of other two selected officers and in furtherance to those orders they have joined also. 2. In this petition under Article 226 of the Constitution of India, the petitioner questions the action of the respondents in not issuing the letter of posting to the petitioner and giving him the benefits of the post of Superintending Engineer as per rules. Thus, he prays for issuance of a writ, order or direction to the respondents to issue posting order in furtherance to the order dated 30.8.05 and to grant all consequential benefits including seniority to the petitioner. This claim of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ending Engineer (Civil). 3.6 That since the petitioner was involved in misappropriation of public money of about ₹ 2.6 Crores, the competent authority decided to withhold the promotion of the petitioner till finalisation of vigilance case or fully exonerated from the charge. 3.7 That accordingly, the Article of Charges were finalised by the Disciplinary Authority and issued to the petitioner on 30 Sep, 2005. The petitioner has received the same on 07 Oct, 2005. The Article of Charges contained the full details of charges proposed to be leveled against the petitioner for his failure to maintain absolute integrity and devotion to duty vide Government of India, Border Roads Development Board Order No. BRDB/02(169)/2005/GE.II dated 30 Sep, 2005 giving him an opportunity to express his version if any thereon. The copy of the same is annexed herewith as Annexure R-2. 3.8 That the petitioner submitted his reply to the Article of Charges to the Disciplinary Authority for consideration. 3.9 That in this connection, it is also submitted that the Hon'ble President (RM on his behalf) has already issued the order dated 01 Feb 2005 for taking severe disciplinary action and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is contended that the letter dated 30.8.05 does not promote the petitioner in all respects inasmuch as post and joining by the promoted employee is an essential part of promotion and once the order of posting was not issued in light of the pendency of the disciplinary proceedings against the petitioner, the respondents were justified in not issuing the posting order and applying the sealed cover procedure to the case of the petitioner. 5. There is no dispute to the fact that the petitioner was served with a chargesheet dated 7.12.05. It is equally true that the petitioner was selected vide letter dated 30.8.05 which itself was a conditional letter and could become operative only at the earliest on 1.9.05 or even later when the petitioner actually is posted and joined his promoted post. The DPC had met on 12.7.05. As per the avernments contained in the counter affidavit which are based on records, an order was passed on 1.2.05 (Annexure R-1 to the counter affidavit) where it was observed that a group of 13 GREF officers and two Army officers were alleged of mishandling in the matter of conclusion, operation and execution of contracts at all levels and it has been decided to conti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Promotion Committee at the very initial stage itself. Promotion would obviously have three ingredients; selection by DPC, acceptance of recommendation of DPC by the competent authority and the officer joining his posting in furtherance to such order particularly when the order makes joining as a condition in the order of posting. In order to give promotion in its true sense, these steps must be completed. It is upon completion of these steps that the promotion actually takes effect. The concept of actual promotion cannot be treated synonymous to a selection or approval or approval by the authorities. Right of an employee to receive benefits of service of the promoted post would accrue only upon his joining the promoted post. In the event, any of the stated steps are kept in abeyance, it would not amount to granting actual promotion to the employee. 7. Promotion includes stepping up to a higher post or a higher scale. In literal sense, promote means to advance to a higher position, grade or honour. It must be understood in the wider sense. The employee would not have a right to be promoted but has a right to be considered for promotion. Wide discretion is vested in the appoint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pletely exonerated of the charges against him. 14. Shri anil Kumar Sharma, learned Counsel adopted the contention that the situation would not have arisen as envisaged in para 7 of the Sealed Cover Procedure if the appellants had complied with the conditions stipulated in the office memorandum dated 31-7-1991 either on that day itself or at least soon thereafter by promoting the respondent. The learned Counsel contended that the Department had willfully and deliberately avoided to comply with the said office memo dated 31-7-1979, and hence the appellants should not be permitted to take advantage of their own wrong. 15. We are not impressed by the said arguments for two reasons. One is that, what the Department did not do is not the yardstick indicated in para 7 of the Sealed Cover Procedure, what is mentioned therein is that it cannot apply to the government servant who is not actually promoted by that time. Second is that, the stand taken up by the Department is that in spite of deletion of Clause (iv) of the second para, the recommendations of DPC must remain in the sealed cover on account of the conditions specified in Clause (iii) of the said paragraph by virtue of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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