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TMI Blog2019 (11) TMI 1726X X X X Extracts X X X X X X X X Extracts X X X X ..... y way of this writ petition, the petitioner has challenged the order dated 13.03.2019 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 517 of 2017, whereby learned Tribunal has allowed the Original Application in part filed by him. 2. Learned counsel for the petitioner has mainly contended that learned Tribunal has exceeded the jurisdiction vested in him by granting the relief to the applicant, whereby it miserably failed to appreciate that the induction is not a promotion. The guidelines of DOPT are not applicable in the present case. It is applicable in the case of promotion only. He further contended that learned Tribunal has seriously committed an error in remanding the matter back for reconsideration and has not considered the judgment of the Hon ble Supreme Court in Civil Appeal No. 10854 of 2014 under Annexure-6 in true spirit. He further contended that the petitioner has no right to be promoted to I.A.S. as he has only right to be considered for induction in I.A.S. 3. Learned counsel for the petitioner contended that for the mis-conduct of the opposite party no. 1, which has been substantiated at paragraph-3 of the impugned order, he h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear to have not been circulated. Similarly, the guidelines at Annexure A/3 are also not circulated. As per the Regulations, the selection committee has the authority to decide the suitability of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round of bias, malafide or arbitrariness, the selection calls for interference. Where the DPC has proceeded in a fair, impartial and reasonable manner, by applying the same yardstick and norms to all candidates and 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 pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e inconsistent with the grading under various parameters or attributes. Before making the overall recommendation after considering the APARs (earlier ACRs) for the relevant years, the DPC should take into account whether the officer 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of Article 20 of the Constitution j) The appointing authorities concerned should review comprehensively the cases of Government servants, whose suitability for promotion to a higher grade has been kept in a sealed cover on the expiry of 6 months 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 g) Page 4 of 5 may consider desirability of giving him ad-hoc promotion (Para 5 of this Department's O.M. dated 14.09.19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty. In the case of the applicant, the selection committee has assessed the applicant to be unfit because the penalty imposed on 24.9.2011 came within the assessment matrix of the applicant as stated in para 5.1 of the Reply filed by the respondent No.2 and it is as per the internal guidelines 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 along with 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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