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# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
# **PRESENT**
**THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN**
**TUESDAY, THE 30TH DAY OF JULY 2019 / 8TH SRAVANA, 1941**
## **WP(C).No.1536 of 2018**
## **PETITIONER/S:**
**M.G. JANARDHANAN AGED 56 YEARS HC/GD, CISF NO. 822312471,VSSC-THUMBA, THIRUVANANTHAPURAM- 695 022.**
**BY ADV. SRI.A.DINESH RAO**
## **RESPONDENT/S:**
**1 THE DIRECTOR GENERAL CENTRAL INDUSTRIAL SECURITY FORCE,CISF HQRS, CGO COMPLEX, NEW DELHI. 2 SENIOR COMMANDANT CISF UNIT,VSSC-THUMBA, THIRUVANANTHAPURAM- 695 022. 3 THE DEPUTY COMMANDANTCASO CISF UNIT,VSSC-THUMBA, THIRUVANANTHAPURAM- 695 022. 4 UNION OF INDIA THROUGH THE SECRETAY GOVERNMENT OF INDIA,MINISTRY OF HOME AFFAIRS, NEW DELHI. BY ADVS. SMT.O.M.SHALINA, CGC**
**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **ANU SIVARAMAN, J.**
## **----------------------------------------------W.P(C).No. 1536 of 2018 ----------------------------------------------Dated this the 30[th] day of July, 2019**
## **JUDGMENT**
This writ petition is filed seeking the following prayers:
- _“i. issue a writ of certiorari of other appropriate writ, direction or order quashing the order dated 7.5.2016 referred to in Exhibit P5 and the order dated 24.11.2016 referred to in Exhibit P9._
- _ii. issue a writ of mandamus or other appropriate writ, direction or order directing the respondents to promote the petitioner as Assistant Sub Inspector/Executive and thereafter determine his seniority._
- _Iii. issue a writ of mandamus or other appropriate writ, direction or order directing the respondents to consider and pass orders on Exhibit P10 representation within a time frame._
2. Heard learned counsel for the petitioner and the learned
Central Government Counsel appearing for the respondents.
3. The petitioner contends that he had been considered for promotion by the Departmental Promotion Committee which met with respect to the promotion year 2014-2015. It is stated that he was included in the panel prepared for promotion. However, on the ground that Exhibit P3 order of censure had been issued after the meeting of the DPC, the inclusion in the panel was cancelled and the petitioner
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was not granted the promotion due to him. It is stated that the request made by the petitioner for inclusion in the panel for the year 20142015 was rejected by Exhibit P9 on the ground that the inclusion had been cancelled.
4. Learned counsel for the petitioner submits that the action of the respondents in having cancelled the promotion already due to him was without jurisdiction. It is submitted that the petitioner had been imposed with the punishment of censure. By Exhibit P4 recovery of the loss caused by him was also effected. Effectively, a further punishment of withholding of promotion has also been inflicted for the minor misconduct alleged against him by Exhibit P1. It is contended that since the DPC found him fit for promotion for the year 2014-2015, there was absolutely no justification in denying the promotion due to him for the said period. Learned counsel for the petitioner further submits that even if Exhibit P3 censure is taken into account, the petitioner would be entitled for promotion in the subsequent years and that as such, the said claim ought to have been considered.
5. A counter affidavit and a statement have been placed on record by the respondents. It is submitted that the DPC for the year 2014-2015 had been held on 28.8.2014. It is stated that Exhibit P1 charge memo was issued on 15.9.2014 and Exhibit P3 order imposing the penalty of censure was issued on 15.10.2014. It is contended that
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the petitioner had been included in the panel for promotion prepared by the DPC. However, on the basis of Exhibit R1(g) office memorandum dated 14.9.1992, it is contended that the claim for promotion of persons included in the DPC list and in whose case disciplinary proceedings are found to be pending or penalty is imposed after recommendation of the DPC or before the officer has actually been promoted, will be considered as if his case had been placed in a sealed cover by the DPC and the officer will not be promoted until he is completely exonerated of the charges against him. This was taken note of and the inclusion in the panel was cancelled and the petitioner was not promoted. It is contended that pursuant to the representation preferred by the petitioner, Exhibit R1(e) reply had been given to the petitioner stating that his claim for promotion against the year 2015 had also been considered and he was not found fit for promotion against the year 2015 due to award of censure after DPC and before assumption of charge to the rank of ASI/Exe. It is also stated that the petitioner's claim for promotion to the rank of ASI/Exe will be considered as and when vacancies arise. It is contended by the learned CGC that the petitioner's claim for promotion had been subsequently considered and he had been granted promotion and the petitioner had assumed charge as ASI/Exe on 11.3.2019 in pursuance of FHQRs. New Delhi SO Part-I No.22/2019 dated 22.2.2019 & DIG SZ
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HQRs Chennai letter No.(1950) dated 9.3.2019. It is therefore contended that the petitioner's claim for promotion now stands redressed, with effect from the later date with reference to the date of arising of vacancies and with reference to eligibility of the petitioner. The learned Central Government Counsel would place reliance on a decision of the Apex Court in _**Union of India v. A.N.Mohanan**_ [2007 KHC 3356] to contend that censure is also a penalty as provided under the Rules and the cancellation of the order of promotion on the ground that penalty of censure was imposed on the petitioner after the date of the DPC and before promotion has actually been granted is completely in order and in strict compliance with the provisions contained in the office memorandum dated 14.9.1992 by which the procedure for consideration and grant of promotions are detailed in cases where the disciplinary proceedings are pending at the time of the consideration by the DPC or are initiated thereafter.
6. I have considered the contentions advanced. Office memorandum dated 14.9.1992 provided at clause 7 thereof as follows:
_“7. A Government servant, who is recommended for promotion by the Departmental Promotion Committee but in whose case any of the circumstances mentioned in para 2 above arise after the recommendations of the DPC are received but before he is actually promoted, will be considered as if his case had been placed in a sealed cover by the DPC. He shall not be promoted until he is completely exonerated of the charges_
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_against him and the provisions contained in this O.M will be applicable in his case also.”_
7. In the above view of the matter, the contention raised by the petitioner that the action of the respondents in having cancelled the decision of the DPC to include the petitioner in the panel for promotion lacks jurisdiction or power cannot be accepted. The Apex Court in _**A.N.Mhanan's case (supra)**_ has also held that a penalty imposed on the Government servant as a result of disciplinary proceedings disentitled him for promotion till the next DPC in the normal course considers his case. It was further held that censure, also being a punishment as provided in the Central Civil Services (Classification Control and Appeal) Rules, the same has also been taken note of while considering a claim for promotion.
8. In the instant case, though the petitioner had been empanelled for promotion in the panel for the year 2014-2015, Exhibit P3 order of censure was issued on 15.10.2014 before he is actually promoted. In the above view of the matter, the cancellation of promotion relying on the provision of Clause 7 of office memorandum dated 14.9.1992 cannot be held to be arbitrary or illegal. It is submitted by both sides that the petitioner had subsequently been promoted and had joined duty in the promoted post on 11.3.2019. It is not clear from the documents produced whether the claim of the petitioner for promotion
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fro 2016 had been considered by the subsequent DPC. In case the petitioner has any grievance with regard to the date of effect of his promotion, it is for the petitioner to raise the same in accordance with law before appropriate authorities. Leaving open such contentions, the writ petition is closed.
Sd/- **ANU SIVARAMAN JUDGE**
_vgs_
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## **APPENDIX**
## **PETITIONER'S/S EXHIBITS:**
**EXHIBIT P1 TRUE COPY OF THE MEMORANDUM OF CHARGE DATED 15TH SEPTEMBER 2014 ISSUED BY THE DEPUTY COMMANDANT CISF UNIT THUMBA TO THE PETITIONER.**
**EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT DATETD 22.09.2014 SUBMITTED BY THE PETITIONER.**
**EXHIBIT P3 TRUE COPY OF THE ORDER DATED 15TH OCTOBER 2014 ISSUED BY THE 3RD RESPONDENT.**
- **EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 07.04.2016 SUBMITTED BY THE PETITIONER ADDRESSED TO THE 1ST RESPONDENT.**
- **EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED 23.05.2016 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.**
- **EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED 24.05.2016 ISSUED BY THE COMMANDANT ADDRESSED TO THE PETITIONER.**
- **EXHIBIT P7 TRUE COPY OF THE RECEIPT DATED 25.05.2016 ISSUED TO THE PETITIONER.**
- **EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 26.10.2016 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.**
- **EXHIBIT P9 TRUE COPY OF THE ORDER DATED 06.12.2016 ISSUED BY THE 3RD RESPONDENT AND ADDRESSED TO THE PETITIONER.**
**EXHIBIT P10 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.**
