Ananda a O. Vs Bengaluru Bruhath Mahanagara Palike

THIS PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-1 CONSIDER THE CLAIM OF THE PETITIONER FOR PROMOTION TO THE POST OF REVENUE INSPECTOR IN TERMS OF THE DPC MINUTES HELD ON

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27.09.2022 AS IS EVIDENT FROM ANNX-A BY OPENING THE SEALED COVER AND EXTEND ALL THE CONSEQUENTIAL BENEFITS TO THE PETITIONER BY GRANTING HIM PAY AND ALLOWANCES ATTACHED TO THE POST OF REVENUE INSPECTOR FROM THE DATE ON WHICH HIS IMMEDIATE JUNIORS HAVE BEEN PROMOTED AS SUCH AS PER THE ORDER DATED 09.11.2022 (ANNX-B) WITH ALL CONSEQUENTIAL MONETARY BENEFITS AND SENIORITY TO MEET THE ENDS OF JUSTICE.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE S.G.PANDIT

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ORAL ORDER

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The petitioner working as Tax Inspector in the respondent-BBMP is before this Court with the following prayer:

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“Issue a writ of mandamus or any other appropriate writ, order or direction, directing the first respondent consider the claim of the petitioner for promotion to the post of Revenue Inspector in terms of the DPC minutes held on 27.09.2022 as is evident from Annexure-A, by opening the sealed cover and extend all the consequential benefits to the petitioner by granting him pay and allowances attached to the post of Revenue Inspector from the date on which his immediate juniors have been promoted as such as per the order dated

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09.11.2022 (Annexure-B) with all consequential monetary benefits and seniority, to meet the ends of justice.”

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Heard learned counsel Sri.M.Subramanya Bhat

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for petitioner and learned counsel Sri.B.L.Sanjeev for respondents. Perused the writ petition papers.

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Learned counsel for the petitioner would submit

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that petitioner is working as Tax Inspector in the respondent-BBMP and he is eligible for promotion to the post of Revenue Inspector in the respondent-BBMP. It is his submission that, case of the petitioner was considered for promotion along with other Tax Inspectors and in the DPC held on 27.09.2022, sealed cover procedure in respect of the petitioner is followed. Learned counsel for the petitioner would submit that as on the date of DPC, no departmental proceedings or criminal proceedings was

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pending against the petitioner. Since there were no proceedings pending against the petitioner, the respondents could not have followed the sealed cover

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procedure. In that regard, learned counsel places reliance on the O.M., dated 14.07.1993 issued by the State Government. Learned counsel would further submit that even to this date, no departmental proceedings or criminal proceedings are initiated against the petitioner.

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Per contra, learned counsel Sri.B.L.Sanjeev on instructions submits that there was no departmental enquiry or criminal proceedings pending against the petitioner as on the date of DPC.

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In the matter of promotion, sealed cover procedure could be followed where, in the departmental proceedings charge memo is issued or in the criminal proceedings where charge sheet is filed against such employee. The O.M., dated 14.07.1993 is issued by the State Government in pursuance of the judgment of the Hon'ble Apex Court in the case of UNION OF INDIA AND

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OTHERS VS. K.V.JANAKIRAMAN AND OTHERS

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[(1991) 4 SCC 109] , the following guidelines which reads as follows:

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“The instructions issued in para 7 of the Official Memorandum dated: 09-10-1985 referred to above have been further examined and the following instructions are issued in its place:

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2. Where a departmental enquiry or court proceeding is pending the following course of action shall be taken.

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3. The Departmental Promotion Committee (DPC) shall assess the suitability of the officer/official for promotion without taking into consideration the disciplinary proceedings/court proceedings pending against the officer/official. The assessment on the basis of records, the view of the DPC shall be kept in a sealed cover. In the subsequent DPCs also, if any, during the period of disciplinary/court proceedings, the DPC shall consider the officer's, official's case and record its findings which will again be kept in a sealed cover in the above manner.

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4. On the conclusion of the

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disciplinary/court proceedings and in case the officer/official is exonerated, the sealed cover or covers may be opened and the earliest possible date of promotion but for the pendency of the disciplinary/court proceedings against him/her, may be determined with reference to the position (s)

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assigned to him/her in the findings in the sealed cover/covers with reference to date of promotion of his/her junior on the basis of such position. The officer/official concerned may then be promoted in accordance with rules if necessary by reverting the junior most officiating person.

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5. If any penalty is imposed on the officer/official as a result of the disciplinary proceedings or if he is found guilty in the court proceedings, the findings in the sealed cover/covers shall not be acted upon. The officer's/officials case for promotion may be considered in the usual manner by the next DPC which meets in the normal course after conclusion of the disciplinary/court proceedings.

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6. The sealed cover procedure contemplated herein above, shall be adopted only after the date of issuance of charge Memo/Charge Sheet, that being the date from which the disciplinary proceedings can be taken to have been initiated. 7. The same procedure as detailed above shall be followed where an officer/official is placed under suspension. On his reinstatement in service at any stage of the enquiry the procedure as explained in para 3 of this O.M. shall be followed and on conclusion of the enquiry the procedure as indicated in paragraph 4 and 5 shall be followed. ”

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In the instant case, as the facts are clear that

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no departmental or criminal proceedings was pending against the petitioner, by issuance of charge memo or filing charge sheet as on the date of DPC, the respondents could not have followed sealed cover procedure. In that circumstance, following the sealed cover procedure in respect of the petitioner’s promotion to the next higher cadre of Revenue Inspector is not proper and opposed to the above stated O.M. In the light of the above, the following:

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ORDER

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a) The respondents are directed to open the sealed cover procedure followed in respect of the petitioner in DPC proceedings dated 27.09.2022 (Annexure-A) and give effect

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to the decision of the DPC and if the decision of the DPC is in favour of the petitioner, granting all consequential

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