R.C. Misra, J. - (1.) THE applicant in the present Original Application has approached this Tribunal with a prayer for quashing the letter dated 22.2.2012 (Annexure -A/7), wherein respondent No. 1 has cancelled the provisional candidature of the applicant and recommended the case of respondent No. 3 for promotion. His further prayer is for direction to be issued to official respondents to declare his result and issue the order of promotion in his favour as Inspector of Posts with immediate effect. Facts of the matter: The applicant joined as Postal Assistant on 19.10.1995 and claims to have served till the year 2006 in the Department to the utmost satisfaction of his authorities without any blemish in his service career. While working as such, on 27.10.2006, a departmental proceeding was initiated against him under Rule 14 of CCS (CCA) Rules, 1965 which outlines the procedure for imposing major penalties. The charges against the applicant in this proceeding were of unauthorized absence from duty and favouring one Postal Assistant. During the course of the departmental proceedings, the applicant had appeared in the departmental examination for the post of Inspector of Posts for the vacancy year 2003 being provisionally permitted by the concerned authorities. The applicant did well in the departmental examination and was assigned Sl. No. 17 in the respect of Odisha Merit List and Sl. No. 945 in the All India Merit List. This merit list was also circulated on 18.9.2009, which has been annexed to the O.A. as Annexure -A/1. One Manoj Kumar Behera, who is respondent No. 3 in this O.A. was junior to the applicant in the cadre of Postal Assistant and he had also appeared in the said departmental examination. He was assigned Sl. No. 24 in respect of Odisha Merit List and Sl. No. 952 in the All India Merit List which indicates that respondent No. 3 was placed lower in both the merit lists than the applicant. Thereafter, the departmental proceeding against the applicant was finalized in imposition of punishment, which reads as under. ...awarded the punishment of reduction of pay of Sri Bharat Jally by two stages from Rs. 14,430.00 to Rs. 13,600.00 in the pay band of Rs. 5200 - Rs. 20,000/ - with grade pay Rs. 2800/ - if he continues officiating in the cadre of DO, PLI or Rs. 13,600.00 to Rs. 12,810.00 in the pay band of Rs. 5200/ - to Rs. 20,200/ - with grade pay of Rs. 2400/ - (in case of reversion to PA cadre) for a period of six months with effect from 1.10.2010. It is further directed that Sri Jally will not earn increment of pay during the period of reduction and that on expiry of the period, the reduction will not have the effect of postponing his future increment of pay.
(2.) SINCE the period of punishment was going to be over in 31st March, 2011, the applicant made a representation dated 8.3.2011 (Annexure -A/3) to respondent No. 2 requesting him to issue the order of promotion in his favour after declaring the withheld result of I.P. Examination, 2008. Pursuant to the representation as aforesaid. Respondent No. 2, sent a letter dated 19.7.2011 (Annexure -A/4) to respondent No. 1 mentioning that the applicant was allowed to appear in the I.P. Examination 2008 as a provisional candidate since a major penalty proceeding was initiated against him. Now the disciplinary proceedings against the applicant have ended with imposition of punishment of reduction of pay by two stages and the period of punishment is over. At present there is no disciplinary or vigilance case pending against him and there is no adverse entries in his ACRs since 2006 -07. It was also mentioned in that letter that in accordance with the instructions contained in Para 5 of Directorate letter dated 18.9.2009, the provisional candidature of the applicant has been regularized. While declaring the result of I.P. Examination, 2008, it was stated that the result of one S.C. vacancy of Odisha Circle will be declared later on. Shri Jali is a Scheduled Caste candidate. The above facts having been pointed out, a request was made by respondent No. 2 to respondent No. 1 to declare the result of SC vacancy of IPO Examination, 2008. Since there was no response from respondent No. 1, the applicant also made a representation dated 23.9.2011 (Annexure -/5) followed by another representation dated 17.12.2012 (Annexure -A/6) addressed to A.D.G., Department of Posts for an early action in the matter. Thereafter, the A.D.G., in the Office of respondent No. 1 wrote to the Chief Post Master General, Orissa Circle, respondent No. 2 vide his letter dated 22.2.2012 (Annexure -A/7) the contents of which indicate that on the basis of the proposal sent by respondent No. 2 vide letter dated 20.1.2012, the matter has been examined. It was mentioned therein that while publishing main result of IP Examination 2008 on 18.9.2009, the result of one SC vacancy was withheld and it was indicated that it will be declared later on. It is further indicated in this letter that the Competent Authority has approved the proposal of respondent No. 2 in not regularizing and cancelling the provisional candidature of the applicant and to declare the result of the next eligible SC candidate. Accordingly, Shri Manoj Kumar Behera (respondent No. 3) in the present O.A. was found to be the next eligible SC candidate and being qualified under relaxed standards was selected against one SC vacancy of the IP Examination, 2008 of the Orissa Circle. This letter was issued by respondent No. 1 is the subject matter of challenge in this O.A. The grievance of the applicant is that the cancellation of the provisional candidature of the applicant is illegal and unjustified since he has secured higher marks than respondent No. 3 in the -I.P. Examination, 2008 and also is senior to respondent No. 3 as per his date of joining. In the letter dated 19.7.2011, respondent No. 2 had regularized the provisional candidature of the applicant and recommended for the declaration of his result. In the face of this recommendation, respondent No. 1 has issued a grossly unjust letter mentioning that the Competent Authority has approved the proposal of respondent No. 2 in not regularizing and cancelling the provisional candidature of the applicant.
(3.) RESPONDENT -Department have filed their counter affidavit opposing the prayer of the applicant. In the counter -affidavit, it is admitted that the applicant belongs to SC community and since he was facing a departmental proceeding under Rule 14 of CCS (CCA) Rules, 1965, he was permitted provisionally to appear the I.P. Examination, 2008. In the said examination one SC vacancy was notified for the Orissa Circle. When the results were declared on 18.9.2009, it was indicated that the result of one SC vacancy will be declared later on. It is further admitted that respondent No. 2 had reported in a letter dated 19.7.2011 that the disciplinary proceedings against the applicant have been completed and that the duration of penalty period has expired. It was also intimated that the provisional candidature was regularized and the respondent No. 2 had also requested for declaring the result of one SC vacancy which was earlier withheld. This proposal was examined in the Office of respondent No. 1. The instructions contained in letter No. 7/31/63 -SPB -II dated 25.6.1965 has provided guidelines about the provisional admission of the candidates who are facing departmental proceeding, which reads as under. It has now been decided in consultation with Ministry of Home Affairs that such an official might be admitted to the examination even though he may be under suspension or disciplinary proceedings might have been initiated against him, if he satisfies all the other conditions prescribed for admission to such examination. The official can, however, be promoted only after disciplinary proceedings are over and he is completely exonerated; in Para 2 of the said letter, it was provided that if on the basis of the disciplinary proceedings, any punishment is imposed, the Appointing Authority should consider each case on its merits to see whether a person should be promoted in spite of the penalty imposed on the basis of results of the examination which he has passed. If it is decided to promote him, then he should be promoted only after expiry of the penalty (other than Censure), but his seniority in the higher grade may be determined on the basis of the rank obtained in the competitive examination.;