WP/5495/1995 of MACHILIPATNAM TODDY TAPPERS COOP SOCIETY Vs THE PROHIBITION AND EXCISE SUPDT KRISHNA AND on 26 December 2001

ORDER:

This writ petition is filed seeking a Mandamus directing the respondents to promotethe petitioner to the rank of Lance Naik w.e.f. 12.2.1994 when his juniors werepromoted and also for consequential benefits on par with them.

It is the case of the petitioner that he was appointed as a Constable in CentralIndustrial Security Force w.e.f. 5.4.1981. In the year 1993, a Departmental PromotionCommittee was constituted for the purpose of considering promotions of Constablesto the posts of Lance Naik. The DPC was sat on 28.2.1993. Even the petitioner wasalso selected for promotion. But however, his promotion was not effected to thecadre of Lance Naik, but whereas all his juniors and batch mates were promoted tothe post of Lance Naik as per the proceedings of the DPC dated 12.2.1994. Hemade several representations to the respondents, but his case was not considered.However, in the DPC held in the year 1994, the petitioner was promoted as LanceNaik w.e.f. 27.9.1994. The petitioner accepted the said promotion, however, aftermore than 3 years thereafter, he filed the present writ petition stating that he isentitled for being promoted to the post of Lance Naik along with his batch matesw.e.f. 12.2.1994. In this regard, he made representations dated 13.9.1996 and31.10.1996 to the respondents, but the same were not considered. The denial of hispromotion along with his batch mates w.e.f. 12.2.1994 to the post of Lance Naik isbeing questioned in this writ petition.

A detailed counter affidavit has been filed by the respondents denying theallegations made by the petitioner. In the counter affidavit, it is asserted that thoughthe DPC constituted in the year 1993 had selected the petitioner for promotion to thepost of Lance Naik, the same was not implemented as he was awarded with thepenalty of ‘censure’ for overstaying leave w.e.f. 5.7.1993 to 13.9.1993unauthorisedly, which amounts to gross misconduct on the part of a member of theArmed Force. As per the rule in force, if any incumbent subsequent to empanelmentof promotion and before the actual promotion takes place, commits any misconductand was awarded punishment, he would not be promoted even though he had beenempanelled. However, it is further stated that the DPC constituted in the year 1994,considered his promotion and found him fit and accordingly he was promoted as Lance Naik w.e.f. 27.9.1994. It was further asserted that the petitioner is not entitledto claim promotion w.e.f. 12.2.1994 on par with his batch mates in view of thecensure imposed on him. The learned counsel for respondents also drawn attentionof this Court to show that censure is included in the minor penalties as per Rule 34of the Central Industrial Security Force Rules, 2001, which reads as under:

34. Nature of Penalties : The following penalties may, for good andsufficient reasons and as hereinafter provided, be imposed on anenrolled member of the Force, namely:

Minor Penalties:

i. Censure;

ii. Withholding of his promotion;

iii. Reduction to a lower stage in the time scale of pay for 3period of not exceeding three years, without cumulativeeffect and not adversely affecting his pension;period of not exceeding three years, without cumulativeeffect and not adversely affecting his pension;

iv. Withholding of increment of pay;

v. Fine to any amount not exceeding of 7 days’ pay.

He also drawn the attention of this Court to Part-V of the DepartmentalPromotion Committee Rules, particularly to Rule 17.6.2, which reads as under:

“If any penalty is imposed on the Government servant as a result ofthe disciplinary proceedings or if he is found guilty in the criminalprosecution against him, the findings of the sealed cover/coversshall not be acted upon. His cases for promotion may be consideredby the next DPC in the normal course and having regard to thepenalty imposed on him”.

In view of the above, I am of the considered opinion that the authorities have notcommitted any error in denying promotion to the petitioner for the post of Lance Naikalong with his batch mates w.e.f 12.2.1994, however, he was subsequentlyconsidered in the year 1994 and the DPC rightly promoted him w.e.f. 27.9.1994

Therefore, the writ petition is devoid of merits and is accordingly dismissed.

Date: 3.3.2005

_____________

C.V.RAMULU, J

DA

To

1 The Secretary, Ministry of Home Affairs, Government of India, New Delhi.

2 The Director General, Central Industrial Security Force, 13th Block,CGO's Complex Lodhi Road, New Delhi.

3 Director/Deputy Inspector General, NISA Hakimpet, Hyderabad.

4 The Commandant, RTC, Deoli, Rajasthan.

5 Two CD copies.