Remanded

N.D.Uppar v. Groupcommandant, Cisf.

Kerala HC15 Jan 2009WP(C)/14642/2005

Case brief

AI extract

What is this about?

The petitioner challenged an order withdrawing his promotion to Head Constable because he received a pay fine after empanelment but before assumption of charge. The Court held that while the withdrawal is in order, the Departmental Promotion Committee must review the promotion afresh to determine eligibility despite the punishment. Relief granted: DPC to reconsider within three months.

What did the court decide?

Order quashed in part; DPC directed to reconsider petitioner's promotion afresh within three months.

N.D.Uppar Vs Groupcommandant, Cisf. — Pension and Retirement Benefits | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE S.SIRI JAGAN

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THURSDAY, THE 19TH JANUARY 2009 / 25TH POUSHA 1930

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WP(C).No. 14642 of 2005(R)

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PETITIONER(S):

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N.D. UPPAR, NO.843310025, CONSTABLE, CISF UNIT, KIOCL, KUDREMUKH, DIST. CHIKMAGALUR, KARNATAKA-577 142.

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BY ADV. SRI.L.GOPALAKRISHNAN POTTI

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RESPONDENT(S):

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1. GROUP COMMANDANT, OFFICE OF THE GROUP COMMANDANT, CENTRAL INDUSTRIAL SECURITY FORCE (MINISTRY OF HOME AFFAIRS), CISF GROUP HEADQUARTERS, COCHIN, KALOOR POST.

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2. DEPUTY COMMANDANT, CISF UNIT, KIOCL, KUDREMUKH, DISTRICT CHIKMANGALUR KARNATAKA.

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3. THE DIRECTOR GENERAL, CISF, HEADQUARTERS, BLOCK NO.13, CGOS COMPLEX, LODHI ROAD, NEW DELHI-110 003.

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4. UNION OF INDIA, REPRESENTED BY SECRETARY,MINISTRY OF HOME AFFAIRS, NEW DELHI.

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BY ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 14642 of 2005(R)

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P1 - TRUE COPY OF FINAL ORDER NO. V-15014/CISF/KIOCL/MIN-01/2004/335 DATED 21.1.2004 ISSUED BY 2ND RESPONDENT.

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EXT.P2 - TRUE COPY OF APPEAL MEMORANDUM DATED 19.2.2004 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

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EXT.P3 - TRUE COPY OF THE APPELLATE ORDER NO. V-15014/CISF/GHC/APPEAL/NDU/ KIOCL(K)/2004/1352 DATED 27TH MARCH, 2004 ISSUED BY 1ST RESPONDENTs

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EXT.P4 - TRUE COPY F REPRESENTATION DATED 18.8.2004 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.

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EXT.P5 - TRUE COPY OF REPRESENTATION DATED 14.12.2004 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

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EXT.P6 - TRUE COPY OF LETTER NO. E-42016/CLARIFICATION/87/L&R DATED 16.4.1987 ISSUED BY ASST. INSPECTOR GENERAL, L&R, CISF

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EXT.P7 - TRUE COPY OF CISF CIRCULAR NO. L&R/34/2001 DATED 9TH NOVEMBER, 2001 (NO.V-14014/8/CLAR/2001/L&R/3129) ISSUED BY INSPECTOR GENERAL, CISF.

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EXT.P8 - TRUE COPY OF COMMUNICATION NO. E-31014/18/ADM/1564 DATED 19.10.2004 ISSUED BY 2ND RESPONDENT.

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RESPONDENTS' EXHIBITS:

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EXT.R1(a) - TRUE COPY OF THE SERVICE ORDER PART-I NO. 45/2004 DATED 12.04.2004

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EXT.R1(b) - TRUE COPY OF THE LETTER DATED 27.07.2004 ISSUED BY THE 2ND RESPONDENT.

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EXT.R1(c) - TRUE COPY OF THE LETTER DATED 27.7.2004 ISSUED BY THE 2ND RESPONDENT.

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EXT.R1(d) - TRUE COPY OF THE CISF HEADQUARTERS LETTER NO. (3302) DATED 12.7.2005

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EXT.R1(e) - TRUE COPY OF THE POSTING GUIDELINES DATED 20.11.2004 ISSUED BY THE 1ST RESPONDENT.

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EXT.R1(f) - TRUE COPY OF THE CHARGE ASSUMPTION CERTIFICATE DATED 12.10.2005

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EXT.R1(g) - TRUE COPY OF SERVICE ORDER PART I NO. 118/2005 DATED 09.12.2005.

// TRUE COPY //

PA TO JUDGE

rhs

S.SIRI JAGAN, J

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W.P(C)No. 14642 of 2005

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Dated this the 19^th day of January, 2009

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J U D G M E N T

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The petitioner while working as a constable in the Central Industrial Security Force was considered for promotion by the Departmental Promotion Committee to the post of Head Constable/ Guard. Pursuant to recommendation by the DPC, the petitioner was promoted as Head Constable/Guard. However, by Ext.P8 order the said promotion was withdrawn on the ground that he has been awarded a punishment of two days “pay fine” after empanelment, but before assumption of charge of the promoted post. The petitioner is challenging Ext.P8 on the ground that as is evident from Exts.P6 and P7 circulars, 'pay fine' is a penalty equivalent to censure and the concept of non-promotion during the period of currency of penalty is not applicable to the penalty of 'pay fine' if it of less than 7 days. The petitioner's contention is that Ext.P8 has been issued on the ground of currency of penalty and in view of Exts.P6 and P7 there is no question of currency of penalty consequent to which Ext.P8 is liable to be quashed.

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According to the learned Assistant Solicitor General, Exts.P6 and P7 do not in any way invalidate Ext.P8. He submits that Exts.P6 and P7 only say that simply because an employee is punished by 'pay fine', that

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would not be treated as a currency of punishment for the purpose of promotion. In this case, the petitioner was considered by the DPC for promotion prior to the imposition of the punishment of pay fine for two days. It was subsequent to the empanelment of the petitioner by DPC for promotion that the punishment was imposed on him. In such circumstances, the procedure to be adopted for promotion is governed by Ext.R1(b), Clause 2(b) of which reads:

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“2. xxx xxx xxx xxx xxx

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(a) xxx xxx xxx xxx xxx

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(b) Instructions regarding the cases in which incumbents are punished subsequent to their empanelment for promotion are quite clear in-as-much as if any punishment is awarded to the incumbent subsequent to his empanelment, he cannot be promoted and his case will have to be considered afresh by the next DPC as per instructions laid down in OP&AR OM No. 22011/1/79-Estt.(A), dated 30.1.1982 read with their UO No. 3258/84-Estt.(D) dated 6.9.1984.”

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Therefore, according to the learned Assistant Solicitor General,

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the DPC has to review the petitioner's promotion considering the punishment of pay fine imposed of him and if the DPC finds him suitable for promotion despite the punishment, he can be promoted in view of Exts.P6 and P7 circulars in so far as punishment of 'pay fine' would not be treated as current for such purpose.

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After hearing both sides, I find considerable force in the contention raised by the learned Assistant Solicitor General. Exts.P6 and P7 read thus:

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“......... Barring these, there can be punishment of removal from any office of distinction or deprivation of special emoluments

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and fine to any amount of not exceeding 7 days pay and allowance and for these punishments there is no question of period of currency and can just be treated like censure.”

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“......... ACP can be granted even if the penalty of censure, recovery of pecuniary loss pay fine not exceeding 7 days etc, has been imposed upon a Govt. servant and the DPC finds him fit for promotion/financial upgradation under the ACP Scheme.”

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That says only that simply because an employee is imposed with a punishment of 'pay fine', that need not be treated as penalty which is current and if the DPC finds him suitable for promotion despite that punishment he can be promoted without treating the punishment as current. It is not now disputed before me that the punishment of 'pay fine' was imposed on the petitioner after the DPC empanelled him for promotion. That being so, as rightly pointed out by the learned Assistant Solicitor General, the situation is governed by clause 2(b) of Ext.R1(a). Therefore what the respondents have done by Ext.P8 is perfectly in order. However, in view of clause 2(b) of Ext.R1(b) the DPC is bound to consider the case of the petitioner afresh taking into account the punishment of pay fine also can consider whether the petitioner is eligible for promotion despite such punishment. Orders in this regard shall be passed, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment.

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The learned Assistant Solicitor General raised another contention

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that the petitioner has subsequently been promoted the procedure in clause 2(b) of Ext.R1(b) has also been complied with. I am unable to

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agree. I am of opinion that the DPC has to review the earlier promotion itself to see whether despite the imposition of the penalty of 'pay fine' the petition is entitled to be selected for promotion in that year itself.

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The writ petition is disposed of as above.

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S.SIRI JAGAN, JUDGE

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rhs

N.D.Uppar v. Groupcommandant, Cisf.

Case brief

What is this about?

What did the court decide?

N.D.Uppar v. Groupcommandant, Cisf.

Case brief

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