TaxTMI 
TaxTMI 
2019 (11) TMI 1726
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 has no right to be considered for induction in I.A.S. The same is quoted below for ready reference: "3. The applicant had applied to the Collector, Kondhamal for availing casual leave from 23.9.2008 to 30.9.2008 on health ground and had proceeded on leave before receiving the sanction order. It is stated in the OA although the leave was sanctioned, but a departmental proceeding was initiated vide order dated 5.6.2009 (Annexure-A/4) and inquiry was conducted. On receiving the copy of the inquiry report dated 31.3.2011, the applicant submitted his reply. Finally, the order dated 24.9.2011 (Annexure-A/6) was passed by the competent authority imposing the minor penalty of stoppage of one increment without cumulative effect." 4. Learned counsel for the oppo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 or breach of orders, or withholding of increments of pay, are also minor penalties laid down in rule 11 of the CCS (CCA) Rules. As in the case of promotion of a Government servant, who has been awarded the penalty of censure, the penalty of recovery from his pay of the loss caused by him to Government or of withholding his increment(s) does not stand in the way of his consideration for promotion though in the latter case promotion is not given effect to during the currency of the penalty. While, therefore, the fact of the imposition of such a penalty does not by itself debar the Government servant concerned from being considered for promotion, it is also taken into account by the Departmental Promotion Committee, or the competent a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pon 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 penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified." (c) In UO1 & Anr. Vs. S.K. Goel & Ors. (Appeal (Civil) 689/2007 -SLP(C)- 2410/2007), the Hon'ble Supreme Court has held that: "DPC enjoyed full discretion to devise its method and procedure for objective assessment of suitability and merit of the candidate being considered by it. Hence interference by High Court is not called for." While delivering the above judgment, the Division Bench has observed that: "...it is now more or less well settled that the evaluation made by an Expert Committe....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC including 'unfit for promotion' and the grading awarded are kept in a sealed cover. (Para 2.1 of DoPT OM dated 14.9.92). e) Para 7 of DoPT OM dated 14.09.92 provides that a Government servant, who is recommended for promotion by the DPC, but in whose case, any of the three circumstances on denial of vigilance clearance mentioned in para 2 of ibid O.M. arises after the recommendations of the DPC are received but before he/she is actually promote....
X X X X Extracts X X X X
X X X X Extracts X X X X
....linary 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 14.09.1992). 8. All the administrative authorities in the Ministries/Department are advised to place relevant records, including charge-sheet, if any, issued to the officer concerned, penalty imposed, etc., before the DPC/ACC who will decide the suitability of officer for promotion keeping in view the general service records of the officer including the circumstances leading to the imposition of the charge-sheet or penalty imposed. If such an officer is found suitable, promotion will be given effect after the currency of....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 considered for promotion, without assessing his overall performance for the years in question as required under the DOPT guidelines referred to in the preceding paragraphs. We, therefore, set aside the order dated 5.7.2017 (Annexure-A/15) rejecting the representation of the applicant and direct the respondents No.1, 2 and 3 to reconsider the case of the applicant for promotion to IAS as per law for the vacancies of the year 2015 as discussed above by convening the review meeting of the sele....