Patna High CourtAjay Kumar Verma vs The Union Of India & Ors on 23 January, 2018Author:S. KumarBench:S. KumarIN THE HIGH COURT OF JUDICATURE AT PATNA
                  Civil Writ Jurisdiction Case No.21964 of 2013
     ======================================================
     Anil Kumar S/O Late Badri Narayan Prasad Resident Of Flat No.303 Monika
     Apartment, Khajpura Bailey Road, P.S. Rajiv Nagar, District - Patna

                                                               ... ... Petitioner/s
                                       Versus
1.   The Union Of India Through, The Secretary Ministry Of Civil Aviation Govt.
     Of India, New Delhi
2.   The Chairman, Airport Authority Of India, Rajiv Gandhi Bhawan, Safdarjung,
     Airport, New Delhi
3.   The Executive Director ( Hr ), Airport Authority Of India, Rajiv Gandhi
     Bhawan, Safdarjung, Airport, New Delhi
4.   The Airport Director, Airport Authority Of India Jai Prakash Narayan
     International Airport, Patna

                                                            ... ... Respondent/s
     ======================================================
                                        with
                  Civil Writ Jurisdiction Case No. 22043 of 2013
     ======================================================
     AJAY KUMAR VERMA S/O SRI NAND KISHORE PRASAD RESIDENT
     OF FLAT NO. 201, SHREEYA APARTMENT, ARA GARDEN BAILEY
     ROAD, P.S.- RUPASPUR, DISTRICT- PATNA

                                                               ... ... Petitioner/s
                                       Versus
1.   The Union Of India Through The Secretary Ministry Of Civil Aviation Govt.
     Of India, New Delhi
2.   The Chairman, Airport Authority Of India, Rajiv Gandhi Bhawan, Safdarjung,
     Airport, New Delhi
3.   The Executive Director (Hr), Airport Authority Of India, Rajiv Gandhi
     Bhawan, Safdarjung Airport, New Delhi
4.   The Airport Director, Air Port Authority Of India, Jai Prakash Narayan
     International Airport, Patna

                                               ... ... Respondent/s
     ======================================================
     Appearance :
     (In Civil Writ Jurisdiction Case No. 21964 of 2013)
     For the Petitioner/s      :       Mr. Sanjay Kumar Mishra
     For the Respondent/s      :       Mr. N. A. Shamsi (A.S.G.)
     For the Respondents
            No. 2 to 4         :       Dr. Pankaj, Advocate
     (In Civil Writ Jurisdiction Case No. 22043 of 2013)
     For the Petitioner/s      :       Mr. Sanjay Kumar Mishra
     For the Respondent/s      :       Mr. N. A. Shamsi (A.S.G.)
     For the Respondents
           No. 2 to 4           :      Dr. Pankaj, Advocate
     ======================================================
     CORAM: HONOURABLE MR. JUSTICE S. KUMAR
     ORAL JUDGMENT
 Patna High Court CWJC No.21964 of 2013 dt.23-01-2018
                                       2/11




          Date : 23-01-2018

                        These writ petitions underArticle 226of the

         Constitution of India has been filed to consider the

         promotion of petitioners to the grade of Assistant Manager

         (Technical) under the Career Progression Scheme and

         thereafter regular promotion with all consequential benefits

         as granted to similarly situated persons as per seniority list

         of 2002.

                        Briefly stated fact of the case is that both

         petitioners were appointed as Technical Assistant in the year

         1988 and petitioner of C.W.J.C. No. 21964 of 2013 gave

         his joining at Jammu whereas petitioner of C.W.J.C. No.

         22043 of 2013 had joined at Palam Air Post, New Delhi.

         Petitioner of C.W.J.C. No. 21964 of 2013 was transferred

         from Jammu to Varanasi in the year 1991 and thereafter, in

         the year 1997 from Varanasi to Patna and in the year 2002

         from Patna to Varanasi and thereafter he had again been

         tranferred to Patna in the year 2007 and petitioner of

         C.W.J.C. No. 22043 of 2013 was transferred from Delhi to

         Varanasi in the year 1990, from Varanasi to Lucknow in the
 Patna High Court CWJC No.21964 of 2013 dt.23-01-2018
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         year 1992, from Locknow to Patna in the year 1997.

         Petitioners of C.W.J.C. Nos. 22043/2013 and C.W.J.C. No.

         21964/2013 were posted at Patna Airport during the period

         from 1997 to 2001 and 1997 to 2002 respectively and as per

         instruction petitioner of C.W.J.C. No. 21964 of 2013

         proceeded on tour for attending training on Meltron Tape

         Recorder at RTC Chennai commencing from 12.04.1999 to

         23.04.1999whereas petitioner of C.W.J.C No. 22043 of

         2013 proceeded in attending tour commencing from

         16.08.1999 to 26.08.1999.                     After completion of aforesaid

         training petitioners were                     relieved on 23.04.1999 and

         26.08.1999 and while they were posted in Patna in the year

         2002, a list of regular promotion in grade of Assistant

         Manager (Technical) was published. But the names of the

         petitioners did not figure in the said list and juniors to

         petitioners were promoted in the list dated 04.07.2002. The

         petitioners submitted their representation to know the

         reasons for their non-inclusion in the list of promotion on

         the post of Assistant Manager (Technical). Memorandums

         were served to the petitioners of C.WJ.C. No.21964/2013
 Patna High Court CWJC No.21964 of 2013 dt.23-01-20184/11and C.WJ.C. No. 22043/2013 with respect to excess amount

         of Rs. 8,400/- and Rs.5720/- respectively, claimed as hotel

         bill by the petitioners, during the training programme in

         Chennai in the year 1999. Petitioners suo motu voluntarily

         refunded the alleged amount, as per direction of the

         authorities.Petitioners submitted their final T.A. bills dated

         02.06.1999 preferring and claiming the amount for staying

         at Hotel Mount Heera, 287, MKN Road, Alandur, Chennai-16, bill no. 1490 dated 23.04.1999 and bill No. 363 of dated

         26.08.1999 for Rs. 20,160/- and Rs.17,820/-, showing tariff

         @ Rs. 1400/- and Rs. 1350 per day and after adjusting the

         T.A. advance the balance bills amount of Rs. 3674/- and

         Rs. 3549/- were paid to them                  on 11.06.1999 and

         10.09.1999 respectively. That being doubtful the Airports

         Authority of India conducted an internal vigilance

         investigation regarding the T.A. bills and it was revealed

         that the T.A. bills submitted were exaggerated and

         manipulated and petitioners had claimed excess amount of

         Rs. 8,400/- and Rs. 5720/- by submitting inflated bills and
 Patna High Court CWJC No.21964 of 2013 dt.23-01-20185/11also caused loss to the employer.It has further been submitted that respondents

         took a decision and granted amnesty to the employees and

         they were directed to refund the excess amount voluntarily

         and      petitioners        also     refunded   the   excess   amount.Thereafter, the respondents initiated disciplinary proceeding

         and issued chargesheets dated 19.03.2004 by which

         petitioners were informed about the action taken against

         them under Regulation 31 of AAI Employees (Conduct,

         Discipline and Appeal) Regulations 2003 and they were

         asked to submit their representations within a period of

         fifteen days and petitioners submitted reply on 15.04.2004

         and after due consideration of their replies the disciplinary

         authority         imposed the punishment vide order dated

         21.06.2004 , which is as follows :-" The next increment of Shri Anil Kumar,

                         Assistant Manager (Com-Tech) be withheld for a

                         period of one year without cumulative effect ."It has further been stated by the respondents that

          a list of regular promotion in grade Assistant Manager
 Patna High Court CWJC No.21964 of 2013 dt.23-01-20186/11(Technical) was published on 04.07.2002 but name of the

          petitioners were not included in the promotion order as per

          Regulation 26(1)(c) to the Airport Authority of India

          (Conduct, Discipline and Appeal) Regulations 2003. A

          case, as per the Vigilance Department, was contemplated

          against the petitioner.The respondents have filed a supplementary

          counter affidavit stating therein that petitioners have been

          granted regular promotion to the grade of Assistant

          Manager         (Technical)         with     effect   from   01/01/2006.However, no notional promotion could be granted because

          of Government of India's circular dated 15.12.2004 and the

          same was communicated to the petitioners.                    They have

          further stated that in their counter affidavit                 that after

          recommendation of Departmental Promotion Committee,

          petitioners have been promoted to the grade of Manager on

          regular      basis from the date of taking over the charge.Petitioners have relied upon a judgment passed by Madhya

          Pradesh High Court in which similarly placed employees

          whose promotion were also denied for the same reason as
 Patna High Court CWJC No.21964 of 2013 dt.23-01-20187/11that of petitioners and was decided in their favour

          considering the judgment of the Apex Court as well as

          Regulation of the Department. It has been submitted that

          petitioners        case is also similarly placed and , as such,

          petitioners may be granted similar relief.Learned counsel for the petitioner has relied

          upon the order dated 28.02.2013 passed by High Court of

          Madhya Pradesh : Bench at Indore in Writ Petition No

          5918 of 2006 and relevant paragraphs are extracted

          below :-" In the present case, the petitioner is an employee serving
                          under the Airport Authority of India and at present he is
                          holding the post of Asstt. Manager Electronics.             The
                          petitioner has claimed retrospective promotion to the post of
                          Asstt. Manager Electronics as his case was not considered in
                          2002 under the Career Progression Scheme. The only reason
                          assigned in the return is that Vigilance clearance was not
                          received in respect of the petitioner at the time the
                          Departmental Promotion Committee met. The Government of
                          India in exercise of powers conferred under sub-Section (1)
                          r/w clause (b) of sub-clause (ii) ofSection 42of the Airports
                          Authority of India Act, 1954 has made Regulations known as
                          Airports Authority of India Employees (Conduct & Discipline
                          of Appeal) Regulations 2003 and the Regulations of 2003
                          governs with the service conditions of the petitioner.Regulations 26 of the Regulations reads as under:26. Promotion of employees against whom disciplinary/Court
                          Proceedings are pending or whose conduct is under
                          investigation- The following procedure is to be followed. (1)
                          At the time of consideration of the cases of Employees for
                          promotion, details of employees in the consideration zone for
                          promotion falling under the following categories will be
                          specifically brought to the notice of the Departmental
                          Promotion Committee : (a) Whether the employee is under
 Patna High Court CWJC No.21964 of 2013 dt.23-01-20188/11suspension; (b) whether employee in respect of whom a
                          charge sheet has been issued and the disciplinary proceedings
                          are pending; and (c) Whether an employee in respect of
                          whom prosecution for a criminal charge is pending.(2) The Departmental Promotion Committee shall assess the
                          suitability of the employee coming within the purview of the
                          circumstances mentioned above along with other eligible
                          candidates without taking into criminal prosecution pending.Keeping in view the judgment delivered by the Apex
                          Court in the case ofUnion of India vs. K.V. Jankiraman(supra), as no charge sheet was issued to the employee in
                          question and also keeping view the regulations framed by the
                          Government of India as the employee was not under
                          suspension and no disciplinary proceedings were pending
                          against him, the respondents could not have ignored his claim
                          for consideration for promotion to the next higher post. This
                          Court is of the considered opinion that the respondents have
                          not followed the prescribed procedure as prescribed underRegulation 26of the Regulations of 2003 in the case of the
                          petitioner and, therefore, keeping in view the peculiar facts
                          and circumstances of the case, the writ petition deserves to be
                          allowed. It is accordingly allowed. Respondents are directed
                          to hold a review Departmental Promotion Committee to
                          consider the case of the petitioner for the post of Asstt.
                          Manager Electronics under the Career Progression Scheme
                          and Asstt. Manager Electronics on regular basis. The
                          exercise of holding Departmental Promotion Committee be
                          concluded within a period of 90 days from the date of receipt
                          of certified copy of this order.This court has also considered the prayer of the
                          petitioner for grant of difference of salary in case he is found
                          fir for promotion to the next higher post. In the peculiar facts
                          and circumstances of the case and specially in the light of the
                          fact that the petitioner has been subsequently promoted to the
                          post of Asstt. Manager, no case for granting backwages is
                          made out. However, in case the petitioner is found fit by the
                          Departmental Promotion Committee, he shall be entitled for
                          notional fixation of salary and all other benefits except
                          backwages. With the aforesaid, the writ petition stands
                          allowed. No order as to costs."Learned counsel has also placed reliance on a decision

         rendered by the Apex Court in the case ofUnion of India

         and others v. Anil Kumar Sarkarreported in (2013) 4
 Patna High Court CWJC No.21964 of 2013 dt.23-01-20189/11Supreme Court Cases 161 and paras-16 and 17 are

         extracted below :-" 16. It is not in dispute that an identical issue was
                           considered by this Court inUnion of India v. K.V.
                           Jankiraman1. The common questions involved in all those
                           matters were: (SCC p. 114, para 8)
                            "8. ... (1) What is the date from which it can be said that
                            disciplinary/criminal proceedings are pending against an
                            employee? (2) What is the course to be adopted when the
                            employee is held guilty in such proceedings if the guilt
                            merits punishment other than that of dismissal? and (3) To
                            what benefits an employee who is completely or partially
                            exonerated is entitled to and from which date?"Among the three questions, we are concerned about
                             Question 1. As per the rules applicable, the "sealed cover
                             procedure" is adopted when an employee is due for
                             promotion, increment, etc. but disciplinary/criminal
                             proceedings are pending against him at the relevant time
                             and hence, the findings of his entitlement to the benefit are
                             kept in a sealed cover to be opened after the proceedings in
                             question are over.17.Inasmuch as we are concerned about the first
                              question, the dictumlaid down bythis Court relating to
                              the said issue is as follows: (K.V. Jankiramancase 1,
                              SCC p. 118, para 16)
                              "16. On the first question viz. as to when for the purposes
                               of the sealed cover procedure the disciplinary/criminal
                               proceedings can be said to have commenced, the Full
                               Bench of the Tribunal has held that it is only when a
                               charge memo in a disciplinary proceedings or a charge-
                               sheet in a criminal prosecution is issued to the employee
                               that it can be said that the departmental
                               proceedings/criminal prosecution is initiated against the
                               employee. The sealed cover procedure is to be resorted
                               to only after the charge memo/charge-sheet is issued.
                               The pendency of preliminary investigation prior to that
                               stage will not be sufficient to enable the authorities to
                               adopt the sealed cover procedure. We are in agreement
                               with the Tribunal on this point. The contention advanced
                               by the learned counsel for the appellant authorities that
                               when there are serious allegations and it takes time to
                               collect necessary evidence to prepare and issue charge
                               memo/charge-sheet, it would not be in the interest of the
                               purity of administration to reward the employee with a
                               promotion, increment, etc. does not impress us. The
                               acceptance of this contention would result in injustice to
                               the employees in many cases. As has been the experience
                               so far, the preliminary investigations take an
                               inordinately long time and particularly when they are
                               initiated at the instance of the interested persons, they
                               are kept pending deliberately. Many times they never
 Patna High Court CWJC No.21964 of 2013 dt.23-01-201810/11result in the issue of any charge memo/charge-sheet. If
                              the allegations are serious and the authorities are keen
                              in investigating them, ordinarily it should not take much
                              time to collect the relevant evidence and finalise the
                              charges. What is further, if the charges are that serious,
                              the authorities have the power to suspend the employee
                              under the relevant rules, and the suspension by itself
                              permits a resort to the sealed cover procedure. The
                              authorities thus are not without a remedy."
                              In para 17, thisCourt further held: (K.V. Jankiraman
                                case1, SCC p. 119)
                              "17. ... Conclusion 1 should be read to mean that the
                               promotion, etc. cannot be withheld merely because some
                               disciplinary/criminal proceedings are pending against
                               the employee. To deny the said benefit, they must be at
                               the relevant time pending at the stage when charge
                               memo/charge-sheet has already been issued to the
                               employee."After finding so, in the light of the fact that no charge-
                                 sheet was served on the respondent employee when the
                                 DPC met to consider his promotion, yet the sealed cover
                                 procedure was adopted.In such circumstances, this
                                 Court held that: (K.V. Jankiramancase 1, SCC p. 124,
                                 para 32)
                                  "32. ... The Tribunal has rightly directed the
                                  authorities to open the sealed cover and if the
                                  respondent was found fit for promotion by the DPC, to
                                  give him the promotion from the date his immediate
                                  junior Shri M. Raja Rao was promoted pursuant to the
                                  order dated 30-4-1986. The Tribunal has also directed
                                  the authorities to grant to the respondent all the
                                  consequential benefits. ... We see no reason to
                                  interfere with this order. The appeal, therefore, stands
                                  dismissed."(emphasis supplied)



                         After considering the submissions of the parties,

          this Court is of the opinion that at the time of publication of

          list of promotion, in 2002 no proceeding was pending

          against the petitioners. As such, there was no reason for

          denial of promotion to the petitioners in 2002. Petitioners

          are entitled to be promoted on the post of Assistant
              Patna High Court CWJC No.21964 of 2013 dt.23-01-201811/11Manager (Technical) in the list of promotion dated

                       04.07.2002 and are entitled to all the consequential benefits

                       from the said date including seniority and other benefits

                       except the back wages for the period from 04.07.2002 to

                       01.02.2006 when they were actually promoted.These writ petitions stand allowed.(S. Kumar, J)


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