Pending CBI Case for 5 Years: CAT allows Pre-dated promotion to the Post of JC, Central Excise and Customs

The Central Administrative Tribunal ( CAT ) directed to promote the applicant to the post of Joint Commissioner of Central Excise and Customs with effect from the date his junior was promoted.

The applicant was found ‘FIT’ by the  Departmental Promotion Committee held on 13.12.2013 for promotion to the  post of Joint Commissioner of Central Excise and Customs along with others. The other officers, including his juniors were promoted, on the basis of the recommendation of the said DPC to the post of Joint Commissioner vide order dated 31.12.2013, but the applicant was not given promotion on the ground that before issuance of his promotion, vigilance status was called from Vigilance Division of CBIC who informed that DIG CBI, Kolkata conveyed that prosecution has been launched against him and the matter is under trial in the court. Thus, the recommendation of the DPC in respect of the applicant was kept in deemed sealed cover.

It was also revealed from record that there was no disciplinary proceeding initiated against him. It is also revealed that meantime, the applicant retired from service and after a protracted correspondence and litigations, finally, the Respondents rejected his grievance.

Being aggrieved he has filed this Original Application praying, to quash the order of rejection communicated and direct the Respondents to consider the case of the Applicant and give effect to the recommendation of the DPC dated 13.12.2023 as per the decision of the Supreme Court in the case of Harsh Kumar Sharma since no review was undertaken in accordance with the order of the DoP&T under Annexure-A/1 and grant the applicant all his service /financial benefits retrospectively.

Respondents, CBI, ACB, Kolkata had registered a case of demand and acceptance of bribe and sought sanction of prosecution against him. The report of the CBI was examined in consultation with the CVC, sanction for prosecution was conveyed to the CBI. The case of the Applicant was examined in the light of the DoP&T's OM dated 14.09.1992 for promotion and the Department came to the conclusion that keeping in view the fact that a criminal charge is pending against him, the promotion is surely against public interest.

The applicant has also filed rejoinder controverting some of the facts stated in the counter. Counsel for the applicant has submitted that on 13.12.2013 DPC was held for consideration of the case of the Applicant along with other eligible Officers of IRS ( C&CE ) of 2002 & 2003 batches and found him 'FIT' for promotion to the post of Joint Commissioner.

The bench, observing the slow progress in the CBI case, noted that, “The Applicant was facing financial hardship and delay in conclusion of the criminal case cannot be attributable to him. Thus, by applying the law laid down by the Hon’ble High Court of Orissa, referred to above, the Applicant is entitled to the relief claimed in this O.A. Learned counsel for the Applicant has also placed reliance on the decision of the Hon’ble High Court of Orissa in the case of Dr. Malay Kumar Pradhan vs State of Odisha and another.”

It was observed that, “viewed from any angle, as discussed above, this Tribunal do not find any justification in keeping the recommendation of the DPC finding the applicant ‘FIT’ under deemed sealed cover when giving promotion to his juniors.”

The impugned order of rejection communicated was thereby quashed.

Since the applicant has already been found ‘FIT’ by the DPC, the respondents were directed to promote the applicant to the post of Joint Commissioner of Central Excise and Customs with effect from the date his junior was promoted vide order dated 31.12.2013 and grant him all consequential service and financial benefits retrospectively within a period of 60 days from the date of receipt of a copy of this order.

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