SUPREME COURT OF INDIA

Before:- Ruma Pal and C.K. Thakker, JJ.

Civil Appeal No. 2649 of 2005. D/d. 15.4.2005.

Govt. of A.P. and Anr. - Appellants

Versus

M. Adbuta Rao - Respondent

Promotion - Denial of promotion - Enquiry proceedings pending - Employee retired meanwhile - Held, since the employee had retired during pendency of proceedings, question of promotion does not arise - However, relief in monetary terms can be granted - Consequential benefits, from the date DPC found the employee suitable for promotion, directed to be paid within four months.

[Paras 11 and 12]

Cases Referred :-

Badrinath v. Govt. of T.N., (2002) 8 SCC 395.

State of Mysore v. Syed Mahmood, (1968) 3 SCR 363 : AIR 1968 Supreme Court 1113.

ORDER

C.K. Thakker, J. - Leave granted.

2. A charge-sheet was issued to the respondent herein on 18-12-1992 containing five charges. The enquiry officer found that three of the charges were not established. However, as far as the fourth and fifth charges are concerned, which related to failure to execute the work as per standard specification and excess payment made to certain contractors, the enquiry officer was of the view that although charges had not been proved to the extent stated in the charge-sheet, nevertheless, there was some excess payment which the enquiry officer quantified at rupees twenty-nine lakhs. The enquiry officer then went on to apportion this loss between various officers. The respondent in this case was held to be responsible for 25% of the loss which amounts to Rs 2.25 lakhs. The enquiry officer?s report was accepted by the Government which decided that the period of suspension undergone by the respondent who was the then Executive Engineer and, by the time the Government passed this order, the Superintending Engineer to be treated as substantive punishment in addition to the recovery of amount of Rs 2.25 lakhs apportioned to the respondent being his share of loss caused to the Government.

3. The respondent challenged this decision before the Andhra Pradesh Administrative Tribunal. The Tribunal came to the conclusion that the Government had rightly imposed the minor punishment of treating the suspension period as substantive punishment. It also noted that all the officers involved had accepted the punishment except the respondent.

4. On the question of the respondent?s further promotion, the Tribunal held that although the respondent had been punished nevertheless because it was a minor punishment he should be considered for promotion to a higher post without considering the minor punishment imposed upon the respondent.

5. The respondent challenged this decision before the High Court by way of a writ petition. The High Court was of the view that the charges were wholly vague and that the enquiry officer had not found any of the charges proved. The High Court was of the view that in any event there was not any reasonable basis by which under fifth charge the extent of loss had been fixed and that the finding of the fifth charge was ex facie based on surmises and conjectures and could not be accepted. The High Court also found that despite the allegation of excess payment, pursuant to the orders of the High Court, the contractors had in fact been paid the entire amount by the appellant authorities.

6. The High Court noted that the next higher post as far as the respondent was concerned was the post of Chief Engineer, and above that Engineer-in-Chief. It was noted that both the posts were selection posts. It was also held that although generally mandamus will not lie to direct the promotion to be given to a selection post, nevertheless in the facts of the case the High Court directed retrospective promotion of the respondent as Chief Engineer with effect from 1994 and also directed the appellant to consider the respondent for promotion on a notional basis as Engineer-in-Chief. In the event he was found fit for promotion, he was directed to be granted all consequential benefits. The appellants were also directed to pay the costs of the proceedings which were assessed at Rs 5000.

7. Learned counsel appearing on behalf of the appellants has submitted that the High Court erred in directing the promotion of the respondent as Chief Engineer. Reliance has been placed on the decision of this Court in State of Mysore v. Syed Mahmood, (1968) 3 SCR 363 : AIR 1968 Supreme Court 1113, It is further stated that the High Court had wrongly proceeded on the basis that the enquiry officer had exonerated the respondent completely.

8. The respondent has, on the other hand, submitted that the High Court had found that the proceedings were vague because the charge-sheet was devoid of particulars and because the enquiry officer?s conclusion was based on conjectures and surmises. It is further stated that even according to the Administrative Tribunal the punishment was only a minor one and this should not have deterred the appellants from promoting the respondent. It is conceded that while the general rule was that the courts will not issue a writ of mandamus to direct the promotion nevertheless in certain circumstances it can be so directed. According to the learned counsel for the respondent this has been so held in Badrinath v. Govt. of T.N., (2002) 8 SCC 395.

9. The appellants are correct in their submission that the High Court erred in coming to the conclusion that the enquiry officer had found that none of the charges had been proved. However, the High Court?s further observations that the proceedings were bad because the charge-sheet was totally vague and that the conclusion of the enquiry officer on the fifth charge was based on conjectures and surmises cannot be faulted.

10. It is also true that as has been contended by the appellants that the principle enunciated in Syed Mahmood case has stood unaltered till now. In that case, this Court had specifically said that where the promotion is based on seniority-cum-merit, the officer cannot claim promotion as a matter of right by virtue of his seniority. If he is found unfit to discharge the duties of the higher post, he may be placed below an officer junior to him who may be promoted.

11. It is not in dispute that in 1994 when the respondent's case was considered by the Departmental Promotion Committee, the respondent was found fit to be promoted as Chief Engineer but promotion was deferred because of the pendency of the enquiry. The High Court has also noted that in the Departmental Promotion Committee convened on 4-11-1995 the respondent?s promotion was deferred by the Departmental Promotion Committee although he had been found eligible to be promoted. In the background of these facts the High Court felt that there was no question of again considering the respondent?s fitness for the purpose of promotion. The counsel for the appellants has submitted that subsequent Departmental Promotion Committees have found the respondent unfit for promotion. Presumably this was on the basis of the decision of the enquiry officer and the subsequent order of punishment passed by the Government. However, the reasons are not before us. Suffice it to say that the appellants have not questioned the recording of fact by the High Court in its order that the respondent had been found fit for promotion as a Chief Engineer twice by the Departmental Promotion Committee.

12. The respondent has retired from service in February 2001. Now, there is no question of the respondent being promoted. There is only a question of granting the respondent relief in monetary terms. Having regard to the facts of this case, we dispose of the appeal by directing the appellants to grant the respondent consequential benefits as if the respondent had been found fit for promotion by the Departmental Promotion Committee held on 7-10-1994. Such payment to be made within a period of four months from the date of communication of this order.

13. The appeal is disposed of.

14. No costs.

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