ANNUAL REPORT 2005-06

Non-Acceptance of Commission’s Advice Chapter

by the Government 10

DISCIPLINARY PROCEEDINGS INSTITUTED that he was suffering from hypertension and severe
AGAINST AN OFFICER BELONGING TO INDIAN depression. Similarly, he did not follow the procedure
ECONOMIC SERVICE regarding the formalities to be completed for sanction
of study leave. It was, thus, established that the
10.1.1 Disciplinary proceedings were instituted Charged Officer remained unauthorisedly absent and
against an officer belonging to Indian Economic did not join the new place of posting from August 29,
Service under Rule 14 of the Central Civil Services 1999 till June 17, 2002. It was also clear from the
(Classification, Control & Appeal) Rules, 1965 on the records that the Charged Officer made attempts to
charge that he, on transfer and relieving order dated bring outside pressure on the superiors regarding his
August 28, 1999 from Department of transfer. The Commission also observed that the
Telecommunications, did not join the Directorate of Charged Officer, being a senior officer in his
Economics and Statistics, Department of Agriculture & Department and was holding a responsible position,
Co-Operation and instead, started making ought to have known the procedure to obtain leave
representations against his posting orders; several whether medical or study leave and ought to have
references were also received from Ministers and complied with the rules and instructions regarding it
Members of Parliament against the transfer orders. and that he absented and started applying for leave
He also submitted leave applications through only after his transfer and then attempted to bring
Department of Telecommunications in spells on outside pressure on his superiors in order to achieve
ground of health and domestic reasons without any his ends. In the above circumstances, the
medical certificate. Subsequently in May, 2002 he Commission considered that the ends of justice would
informed that he was pursuing a Doctor of Philosophy be met if the penalty of dismissal from service was
course and requested that he may be sanctioned imposed upon the Charged Officer. Accordingly,
study leave from August, 1999 till date. He was, thus, advice of the Commission was communicated to the
on unauthorised absence from duty from August 29, ministry on December 21, 2004.
1999 to June 17, 2002. After conducting an inquiry in
this case a penalty of ‘Censure’ was imposed on him, 10.1.3 In January, 2005 a fresh reference was
with the approval of Disciplinary Authority. received from the Ministry seeking reconsideration of
Subsequently he filed an appeal against the penalty the advice of the Commission conveyed earlier stating
order and the Appellate Authority rejected the same. that the penalty advised by the Commission appeared
The matter was further examined under Rule 29(A) of to be unduly harsh and disproportionate to the
the CCS(CC&A) Rules, 1965 and it was observed that misconduct by the officer; further, since he was on the
the Charged Officer was not provided with the report of verge of retirement, the penalty advised by the
the Inquiry Officer along with the reasons for Commission would put him to irreparable financial
disagreement with the findings of the Inquiry Officer hardship which, together with his physical disability,
and that the advice of the Commission was not might be truly debilitating. While disagreeing with the
obtained before imposition of the penalty. The advice of the Commission, the observations of the
proceedings were resumed from the stage of supply of Ministry were that during the absence he pursued
Inquiry Report. research work leading to the award of Doctor of
Philosophy and had not caused any financial loss to
10.1.2 In October, 2004 Ministry of Finance, the Government and that he was not guilty of moral
Department of Economic Affairs made a reference turpitude. After remaining absent he joined his duties;
seeking advice of the Commission after rectifying the that he had not been sanctioned any salary and
procedural lapse. The Commission, after careful allowances during the period of his absence and the
consideration of all the facts and circumstances of the period of absence can also be treated as a break in
case, observed that it was clear that the Charged service; that he had already suffered considerable
Officer remained absent from duty without sanction or implicit punishment by denial of promotion to HAG in
permission from the competent authority. He also did view of the pending proceedings; that he was a very
not submit any medical certificate in support of his plea good officer; that he was due to retire on January,

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2005 after serving almost thirty five years; that he is a Commission considered that the charge framed
member of the Scheduled Caste and was currently the against him, were proved and that the ends of justice
senior-most officer of Indian Economic Service would be met in this case if the penalty of ‘Compulsory
belonging to this category and that he was suffering Retirement’ was imposed on him. Accordingly, advice
from permanent physical disability in one leg. The of the Commission was communicated to the Ministry
Commission reconsidered the case and observed that on August 12, 2004.
there were no new material facts or point of law, which
was not considered earlier and due to which the 10.2.2 In October, 2004 the Ministry made a fresh
advice tendered earlier, is required to be reconsidered. reference seeking reconsideration of the advice
Accordingly, advice of the Commission reiterating their tendered by the Commission stating that the penalty
earlier advice was communicated on January 24, proposed at the time of forwarding the case to the
2005. Commission for advice was taken on account of the
Charged Officer’s family circumstances; that there
10.1.4 In January, 2005 Ministry of Finance passed was no doubt that the Charged Officer had committed
an order imposing the penalty of ‘Censure’, in misconduct of a serious nature and that the
disagreement with the advice of the Commission punishment suggested by the Commission would be
stating that the penalty of dismissal from service was very harsh on the Charged Officer for the basic reason
too severe and disproportionate. that the qualifying service (for purpose of pension) put
in by the Charged Officer was less than 10 years and
10.1.5 Since the order passed by the Ministry is not in terms of Rule 49(1) of Central Civil Services
in accordance with the advice of the Commission, this (Pension) Rules, 1972 he would not eligible to
has been treated as a case of non-acceptance of the pension, if retired compulsorily. The Disciplinary
Commission’s advice. Authority was, therefore, of the view that it would be
sufficient if a penalty of reduction to one lower stage of
DISCIPLINARY PROCEEDINGS INSTITUTED pay drawn by him in the time-scale of pay for a period
AGAINST AN OFFICER BELONGING TO CENTRAL of two years with the stipulation that the reduction
SECRETARIAT SERVICE would have the effect of postponing future increment
of his pay is imposed on him, instead of ‘Compulsory
10.2.1 Disciplinary proceedings were instituted Retirement’. On reconsideration, the Commission
against an officer belonging to Central Secretariat observed that the penalty advised was just and fair
Service by the Ministry of Home Affairs, on the charge and commensurate with the proved misconduct of the
of unauthorised absence from duty and non- Charged Officer and the reference for the downward
compliance of Government directions to report for revision of the proposed penalty the Disciplinary
duty. Since the charge memo was returned Authority had not adduced any new fact, point of law
undelivered, an ex-parte inquiry was held in this case. or patent error which would technically warrant
However, later on, Charged Officer submitted his revision of the Commission’s earlier advice.
defence statement to the Inquiry Officer, who held the Therefore, reconsidered advice of the Commission to
charges as proved. In January, 2004 a reference was reiterate the earlier advice was communicated to the
made to the Commission seeking advice of the Ministry on February 16, 2005.
Commission with a tentative decision to impose one of
the major penalties. The Commission, after taking 10.2.3 In August, 2005 the Ministry passed an order
into consideration all the facts and circumstances of imposing the penalty of reduction to one lower stage
the case, observed that intimations about absence of of pay drawn by him in the time-scale of pay for a
the Charged Officer from duty and directions to report period of two years with the stipulation that the
for duty before disciplinary proceedings were initiated reduction would have the effect of postponing future
against him were issued to him. In his application for increment of his pay, in disagreement with the advice
extension of Extraordinary Leave during the period, of the Commission.
neither the reference of the letter stated to have been
sent earlier was referred by the Charged Officer nor 10.2.4 Since the order passed by the Ministry is not
the residential address from where it had been sent in accordance with the advice of the Commission, this
was indicated. The Charged Officer was also has been treated as a case of non-acceptance of the
informed about refusal of leave on October 13, 2000 Commission’s advice.
and October 20, 2000. However, he did not follow the
Government directions issued to him from time to REVIEW OF ORDER PASSED AGAINST AN
time. In the light of the above findings and after taking OFFICER BELONGING TO MINISTRY OF URBAN
into account all other aspects relevant to the case, the DEVELOPMENT

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10.3.1 Advice of the Commission was sought in relevance, particularly in view of the clear instructions
March, 2000 by the Ministry of Urban Development on issued through circular and contained in the CPWD
the action taken against an Assistant Engineer (Civil), Manual regarding the sub-standard work. The
under Rule 9 of the of Central Civil Services (Pension) Commission observed that it was clear that while
Rules, 1972 on the charge that (i) he did not supervise bringing out the grounds for reconsideration of the
the work properly and permitted execution of sub- penalty, the Disciplinary Authority seemed to have
standard work of boundary wall and that (ii) no overlooked their own Codal provisions and
architectural/ structural drawing for gates was Departmental instructions with regard to ‘sub-standard
provided to the contractor and which led to the work’. As regards the lesser penalties imposed on
execution of heavy gates with improper fixing Executive Engineer and Junior Engineer, the
arrangement and poor welding work and changed the Commission observed that there cannot be a
provisions of the estimate without the prior permission comparison of the penalties since the level/ degree of
of the client department. The Commission after the responsibility in execution of a work was not the
consideration of the case advised the Ministry to same for Executive Engineer, Assistant Engineer and
impose 30% cut in pension otherwise admissible to Junior Engineer. The Commission further observed
him for a period of five years. Accordingly, advice of that the Disciplinary Authority had not brought out any
the Commission was communicated to the Ministry on new material of evidence, fact or any new point of law
March 7, 2001. Final order was issued in this case on that was not considered by the Commission while
May 23, 2001, accepting the advice of the considering the Charged Officer’s case earlier and
Commission. thereby that might warrant any reconsideration of the
advice already tendered by the Commission. In view
10.3.2 Aggrieved by the penalty order the Charged of the above, the Commission decided to reiterate
Officer filed Original Appellate No. 2030/2001 in the their earlier advice. The reconsidered advice was
Central Administrative Tribunal, Principal Bench, New communicated to the Ministry on March 3, 2005.
Delhi. The Tribunal set aside the penalty and directed
the Disciplinary Authority to reconsider the aspect of 10.3.3 In May, 2005 the Ministry of Urban
punishment so as to impose a lesser cut in pension of Development passed an order in the case, imposing
Charged Officer. The Disciplinary Authority 30% cut in pension for a period of three years on the
challenged the judgement in the High Court. The Charged Officer, in disagreement with the advice of
Appeal was dismissed. Thereafter, the Ministry made the Commission stating that the penalty of 30% cut in
a reference to the Commission seeking advice of the pension for a period of five years imposed was a bit
Commission with a tentative view that there was some too severe in comparison with the penalty imposed on
scope for reducing the punishment already imposed the Executive Engineer and the Junior Executive and
on him on the grounds that (a) the existence of considered that ends of justice would be met in this
defects in the work was not uncommon but the case if the penalty was reduced to 30% cut in pension
Charged Officer was expected to take corrective for three years instead of the five years already
action immediately; that (b) the Charged Officer had imposed vide order dated May 23, 2001.
written various letters to the contractor to complete the
work under intimation to Executive Engineer and had 10.3.4 Since the order passed by the Department is
also issued instructions to Junior Engineer for not in accordance with the advice of the Commission,
rectification of defects etc. and the later pointed out this has been treated as a case of non-acceptance of
some defects to the contractor; that (c) he had the Commission’s advice.
proposed double rate recovery of cement for rectifying
the defect in brick works and had also withheld an DISCIPLINARY PROCEEDINGS INSTITUTED
amount of Rs.5,000 pending disposal of paras of AGAINST AN OFFICER BELONGING TO INDIAN
Quality Control from the bill of the contractor which ADMINISTRATIVE SERVICE
was found sufficient by the Executive Engineer and
that (d) the main contractor died in a road accident 10.4.1 Disciplinary proceedings were instituted
and the work remained abandoned for a longer time against an officer belonging to Indian Administrative
even after the Charged Officer’s departure. The Service under Rule 8 of the All India Services
Commission after consideration of the grounds (Discipline & Appeal) Rules, 1969 by the State
forwarded by the Disciplinary Authority for Government of Gujarat on the charge of unauthorised
reconsideration and the various provisions of the absence from duty and insubordination. During the
Central Public Works Department Manual observed inquiry, the Member of Service admitted the charge of
that, in the light of specific charge, grounds/ points, as his own volition. In June, 2004 a reference in the case
now brought out by the Disciplinary Authority bore no was received from the Government of Gujarat,

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agreeing with the Inquiry Officer seeking advice of the ‘Censure’ in disagreement with the advice of the
Commission. The Commission, after taking into Commission. In this case, it was also observed that
consideration all the facts and circumstances of the though the Government of Gujarat had referred the
case, observed that the Member of Service was on matter to the Government of India under Rule 11 of
inter-state deputation to the Government of West the AIS (D&A) Rules, 1969, they did not make a
Bengal when he applied for study leave. The reference to the Commission for reconsideration of the
Government of West Bengal sanctioned study leave advice tendered by the Commission as required under
with the concurrence of Gujarat Government and Department of Personnel & Training O.M. No.
approval of DoP&T for a period of one year w.e.f. 39028/26/93-Estt.(B) dated November 10, 1995.
September 20, 1999 to September 30, 2000 for
pursuing Master of Business Administration course in 10.4.3 Since the order passed by the State
the University of Central England in Birmingham, Government is not in accordance with the advice of
United Kingdom. Later on, DoP&T granted the Commission, this has been treated as a case of
permission for the study leave (Master of Philosophy non-acceptance of the Commission’s advice.
programme) till October 31, 2001. On September 15,
2001 the Member of Service requested the DISCIPLINARY PROCEEDINGS INSTITUTED
Government of Gujarat for extension of study leave till AGAINST AN OFFICER BELONGING TO CENTRAL
October 31, 2002. The Commission further observed HEALTH SERVICE
that despite refusal of extension of Extraordinary
Leave by Gujarat Government and, consequently, 10.5.1 In March, 2001 advice of the Commission
despite repeated directions to report for duty, the was sought by the Ministry of Health and Family
Member of Service chose not to comply with the Welfare on the disciplinary proceedings instituted
orders/ directions, which amounts to plain defiance. against an officer belonging to Central Health Service,
Even after he was recalled to duty on July 20, 2002 for on the charge that, after inspection of an hospital at
the last time and informed of initiation of disciplinary Bangalore in connection with issue of Customs Duty
action for his unauthorised absence, Member of Exemption Certificate (CDEC), he failed to suggest
Service continued to remain absent up to October 31, any punitive action against the hospital in spite of the
2003. The Commission viewed it as a deliberate and fact that he himself had recorded in his report that the
well considered decision by the Member of Service to hospital is not entitled for CDE. On consideration of
disobey Government instructions and to face the all the facts and circumstances of the case,
consequences, which, in his calculus, did not perhaps Commission observed that as ADG, who was
outweigh the personal gains of his overstayal in the assigned the duty of examination and processing of
United Kingdom such as those were. The cases for CDEC in the Directorate General of Health
Commission also observed that, being an Indian Services, should have suggested review/ some action
Administrative Service officer with 10 years service, against the hospital after observing that they were not
Member of Service cannot claim ignorance of the fulfilling the conditions of the Customs Notification,
basic rules, regulations, norms and consequences against which earlier equipments had been imported;
concerning unauthorised absence from duty. In the that though while setting up, the hospital was
considered view of the Commission, the principle of categorised under Category IV and report was due
‘sympathy’ did not apply in this case since there were only after 3 years but since the hospital was already
no mitigating circumstances: medical, compassionate, functioning and falls under Category II, non-fulfillment
domestic, professional or pecuniary. In order to instill, of conditions of the free Out Patient Department
reinforce and ensure discipline in an administrative treatment etc., would immediately attract violation of
system, it is of paramount importance that such the conditions for issue of earlier CDECs and that the
instances of deliberate and defiant ‘unauthorised contention of the Charged Officer that as ADG, he
absence’ are nipped in the bud, in order to serve as a had no power to reopen the old cases and only M/o
deterrent to others. In the light of the above, and after Health was competent to decide the cancellation, was
taking into account all other aspects relevant to the not correct since he, as initiating officer, should have
case, the Commission considered that the ends of at least put up the case for review of the old cases
justice would be met in this case if the penalty of etc. after noticing the deficiencies. In the light of the
‘Dismissal from service’ was imposed on the Member above findings and after taking into account all other
of Service. Accordingly, advice was communicated to aspects relevant to the case, the Commission held
the State Government on October 7, 2004. the charge as proved and considered that ends of
justice would be met in this case if the penalty of
10.4.2 In July, 2005 the Government of Gujarat ‘Censure’ was imposed upon the Charged Officer.
passed an order in the case imposing the penalty of

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Accordingly, advice of the Commission was APPEAL) RULES, 1968 AGAINST THE PENALTY
communicated to the Ministry on August 13, 2001. OF REMOVAL FROM SERVICE

10.5.2 In November, 2003 the 10.6.1 Action under Rule 9 of the Railway Servants
Ministry passed orders dropping the charges against (Discipline & Appeal) Rules, 1968 were instituted
the Charged Officer, in disagreement with the advice against an Ex. Mail/ Express Driver on the charge of
of the Commission. The plea forwarded by the grave negligence on his part due to which his train
Ministry was that no formal order was issued went into the sand hump and derailed the train engine
immediately in this case as well as other CDEC cases along with two bogies. After considering the Inquiry
as the issue of CDECs was being monitored by the Officer’s report, which proved the charge against him
Hon’ble High Court of Delhi and the court had ordered and his representation submitted by him, the
a status report to be filed at that time; that it was Disciplinary Authority imposed the penalty of removal
decided to await the High Court’s directions, if any, on from service on July 27, 1999. The Charged Officer
the status report filed by the Ministry; that it was only preferred an appeal against the penalty, which was
much later that the High Court noted the position in rejected by the ADRM. Thereafter, compassionate
respect of various cases and directed to decide the allowance in terms equivalent to 2/3rd of retiring
cases expeditiously; that by that time the Ministry’s pension was granted to him. The Charged Officer
status report was taken on record by the High Court, submitted a further petition to the revising authority,
the Charged Officer had retired from service and in COM/ CSTM, who also rejected the same. Aggrieved
this case the penalty of censure which is only formal by rejection of all submissions, he preferred a petition
warning had become irrelevant. It has also been dated September 22, 2002 to the Minister of State for
stated that, in the matter Central Vigilance Railways pleading that the penalty of removal from
Commission had again advised the Ministry to review service is harsher and it was very difficult for him to
the decision taken in the light of Commission’s advice look after the family with the meager amount of
in all cases particularly because a junior official like monthly pension of Rs.3,600 requesting him to modify
the Charged Officer had been proposed to be the penalty to that of compulsory retirement with full
punished by censure while letting off senior officers pensionary benefits. In December, 2003 the Ministry
for not monitoring and that the matter was made a reference to the Commission seeking advice
reconsidered and the charges were dropped in with a tentative decision on behalf of the President to
respect of the Charged Officer with the approval of modify the penalty to that of compulsory retirement
Hon’ble Health and Family Welfare Minister. with full pensionary benefits. The Commission, after
taking into consideration all the facts and
10.5.3 In this case, the Commission observed that circumstances of the case, observed that the accident
once an advice of the Commission is obtained in a primarily occurred due to carelessness of the Charged
disciplinary case, the Ministry should have consulted Officer. The report of the Inquiry Officer also
the Commission again in view of the fact that the confirmed this fact and the Charged Officer himself
advice of the Commission had become infructuous had clearly admitted this fact. Therefore, the charge
due to the retirement of the Charged Officer before was held proved. It was also observed that as per
passing of the order. The Commission also observed Railway Rules, 1993 ‘removal from service’ or
that the Ministry had also not followed the procedure ‘compulsory retirement’ was the only appropriate
as laid down in DoPT O.M. No.39028/26/93-Estt.(B) penalty for a person having been primarily responsible
dated November 10, 1995 before passing the order in for an accident. The Commission had further
disagreement with the advice of the Commission. observed that the fault and carelessness of the
Charged Officer were not small in any way, but there
10.5.4 Since the order passed by the Ministry is not were some facts, which did not however, lessen the
in accordance with the advice of the Commission, this fault of the Charged Officer, but definitely pointed at
has been treated as a case of non-acceptance of the the possibility of decreasing the degree of penalty.
Commission’s advice. The Commission, after considering the petition of the
Charged Officer with reference to his lapse and his
critical financial condition or financial hardships faced
by him, decided to reject the same. Accordingly,
advice of the Commission was communicated to the
PETITION FILED BY AN EX. MAIL/ EXPRESS Ministry on June 17, 2004.
DRIVER, CENTRAL RAILWAY UNDER RULE 31 OF
THE RAILWAY SERVANTS (DISCIPLINE & 10.6.2 In July, 2004 the Ministry made a fresh
reference seeking reconsideration of the advice

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tendered by the Commission, stating that the spirit of four stages for a period of three years with the
any penalty is that it acts as a deterrent from stipulation that he would not earn any increments of
commission of similar offence/ lapse in future. The pay during the period of penalty and that such
essence of such action should, therefore, be more reduction would have the effect of postponing his
reformative than punitive. Loss of almost five years of future increments of pay, is imposed. Accordingly,
service coupled with compulsory retirement should be advice of the Commission was communicated to the
punishment enough for the offence committed by the Department on November 8, 2002.
Charged Officer and a humanitarian view ought to be
taken in such cases so that delinquent employee gets 10.7.2 In January, 2003 the Department again
punished but the punishment is not stretched to an referred the case for reconsideration of the advice with
extent where his whole family suffers for all times and the observation that the Charged Officer had admitted
that compulsory retirement with full pensionary benefit the charge; that the penalty advised by the
would meet the ends of justice in this case. The Commission appeared to be too severe and that in a
whole case was considered again by the Commission similar case, the Comission had concurred with the
and observed that Disciplinary Authority had not been recommendation of the Department to impose
able to come out with any new fact/ logic/ contention reduction of pay by two stages for two years. After
warranting a change in the advice already tendered by reconsideration of the instant case along with the
the Commission. Therefore, the Commission similar cases as mentioned by the Commission, the
reiterated their earlier advice to reject the petition. Commission observed that the Commission had
Accordingly, reconsidered advice was communicated examined each case relating to Leave Travel
to the Ministry on February 16, 2005. Concession on its own merits and as no new facts had
been brought out which might materially alter the
10.6.3 In August, 2005 the Ministry passed an order merits of the case, there hardly appeared to be a case
reducing the penalty of ‘removal from service’ earlier for reconsideration of the advice of the Commission
imposed on the Charged Officer to that of ‘compulsory already tendered in the present case. Therefore, the
retirement from service with full pensionary benefits, in Commission decided to reiterate their earlier advice.
disagreement with the advice of the Commission. The advice of the Commission reiterating their earlier
advice was communicated to the Department on
10.6.4 Since the order passed by the Ministry is not March 20, 2003.
in accordance with the advice of the Commission, this
has been treated as a case of non-acceptance of the 10.7.3 In April, 2005 an order was passed by the
Commission’s advice. Department in the case imposing the penalty of
reduction of pay of the Charged Officer by two stages
DISCIPLINARY PROCEEDINGS INSTITUTED for a period of two years with further direction that he
AGAINST AN OFFICER BELONGING TO GENERAL would not earn any increments of pay during the
CENTRAL SERVICE period of penalty and on expiry of the penalty period
reduction would have the effect of postponing future
10.7.1 Disciplinary proceedings were instituted increments of his pay, in disagreement with the advice
against an officer of Bhabha Atomic Research Centre of the Commission.
on the charge of false Leave Travel Concession claim.
The Charged Officer, vide his reply to the Charge 10.7.4 Since the order passed by the Department is
Sheet, admitted the charge. Since the charge was not in accordance with the advice of the Commission,
admitted, no inquiry was held. The case was referred this has been treated as a case of non-acceptance of
to the Commission with a tentative decision to impose the Commission’s advice.
the penalty of reduction of pay by two stages for a
period of two years on the Charged Officer. The
Commission, on consideration of all the facts and
circumstances of the case including the admission of
the charge by the Charged Officer, observed that the ACTION UNDER RULE 6(1)(A) OF THE ALL INDIA
Charged Officer meticulously planned to defraud the SERVICE (DCRB) RULES, 1958, INSTITUTED
Government and had intentionally preferred fraudulent AGAINST AN OFFICER BEONGING TO INDIAN
claim which constituted grave misconduct and that the ADMINISTRATIVE SERVICE
charge involved integrity of the Charged Officer. In
the light of the above, the Commission considered that 10.8.1 Disciplinary proceedings were instituted
the ends of justice would be met in this case if the against an officer belonging to Indian Administrative
penalty of reduction of pay of the Charged Officer by Service under Rule 8 of the All India Service

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(Discipline & Appeal) Rules, 1969 by the State monthly pension of the Charged Officer for three
Government of Gujarat on the charge that (1) he years, in disagreement with the advice of the
abruptly left the charge of the post of his duty and did Commission. In this connection, the Commission
not send his formal leave applications well in time; (2) observed that as per the procedure laid down in
he remained absent from duty unauthorisedly with Department of Personnel & Training O.M.
effect from November 10, 2000 till the date of his No.39028/26/93-Estt.(B) dated November 10, 1995, if
suspension, i.e. March 17, 2001; (3) he failed to Ministry of Personnel, Public Grievances and
respond to the ‘Alert Call’ sounded by the Pensions proposes to disagree with the advice of the
Government in the wake of the disastrous earthquake Commission in cases of appointment as well as other
and despite clear general instructions, failed to cases relating to services/ posts for which it is the
resume duty till his date of suspension and (4) by controlling authority, a reference should be made by
behaving in an irresponsible manner displayed a the Ministry to the Commission citing reasons for
serious lack of devotion to duty and committed a same and if it is still proposed to vary or disagree with
grave misconduct. On conclusion of the departmental the advice of the Commission, the proposal might be
inquiry, the Inquiry Officer held Articles 2 and 4 as placed before the Committee of Secretaries and
proved and Articles 1 and 3 as not proved. In May, thereafter submitted to the Minister-in-charge/ Prime
2004 a reference in the case was received from the Minister as the case may be alongwith the opinion of
Ministry of Personnel, Public Grievances and Committee of Secretaries. In the present case, it was
Pension, Department of Personnel and Training clear that the Ministry had not made a reference to
seeking advice of the Commission, agreeing with the the Commission for reconsideration citing reasons for
Inquiry officer and alongwith a proposal to impose a disagreement with the advice of the Commission. In
penalty of cut in pension of Rs.100, for a period of response to this office’s letter seeking clarification, the
three years, after following due procedures. The DoP&T has stated that, pursuant to receipt of the
Commission after taking into consideration all the advice of the Commission, the proposal of the
facts and circumstances of the case observed, as Government of Gujarat was further examined in the
regards Article 2 of the charge, that merely sending a light of conclusions arrived at in the matter; that while
leave application, Medical Certificates and other submitting the proposal to the competent Disciplinary
documents by post does not by itself confer upon a Authority i.e. Prime Minister being the Minister-in-
government servant the right to leave. He did not Charge of the Department of Personnel & Training,
ascertain whether those documents, which he the Department had recommended to impose the
claimed to have been sent by post, had been duly penalty on the Charged Officer, in agreement with the
received and whether the leave requested for by him advice; however, the competent Disciplinary Authority
had been granted. Therefore, the Commission held passed order to the effect that a penalty of 5% cut in
Article 2 as proved against the Charged Officer. As the monthly pension of the Charged Officer for three
regards Article 4 of the charge, the Commission years be imposed on him. Subsequently, in
observed that the Charged Officer did not take even pursuance of the aforesaid orders of the competent
the routine, commonsensical follow up steps in Disciplinary Authority, the penalty as decided was
respect of his leave application. This showed not only imposed on the Charged Officer by the DoP&T on
his apathy but also irresponsibility, quite regardless of November 11, 2004. In view of the position stated
his illness. Therefore, the Commission held charge of above, it was stated, there was no occasion for that
irresponsible behaviour and lack of devotion to duty Department to follow the procedure prescribed in
as proved against the Charged Officer. In the light of DoP&T O.M. dated November 10, 1995 i.e. obtaining
the above observations and findings and after taking independent opinion of the Committee of Secretaries
into account all relevant aspects as contained in the before submitting the proposal to Prime Minister for
records of the case, the Commission concluded that passing final orders in the matter. In this case, the
the charges established against the Charged Officer Commission are of the view that the Department
constituted grave misconduct and considered that the failed to appraise the President of the procedure
ends of justice would be met in this case if a penalty which is required to be followed before passing final
of cut of 10% in the monthly pension for a period of order in disagreement with the advice of the
three years is imposed upon him. Accordingly, advice Commission.
of the Commission was communicated to the Ministry
on September 1, 2004. 10.8.3 Since the order passed by the Ministry is not
in accordance with the advice of the Commission, this
10.8.2 In November, 2004 the M/o Personnel, Public has been treated as a case of non-acceptance of the
Grievances and Pension, Department of Personnel Commission’s advice.
and Training, passed an order imposing 5% cut in the

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 ANNUAL REPORT 2005-06

ACTION UNDER RULE 9 OF THE CENTRAL CIVIL

SERVICE (PENSION) RULES, 1972 INSTITUTED 10.9.3 In June, 2003 the Ministry passed orders
AGAINST AN OFFICER BELONGING TO CENTRAL imposing 5% cut in pension, otherwise admissible to
HEALTH SERVICE him for a period of two years, in disagreement with
the advice of the Commission.
10.9.1 Action under Rule 9 of the Central Civil
Service (Pension) Rules, 1972 was instituted by the 10.9.4 Since the order passed by the Ministry is not
Ministry of Health and Family Welfare against an in accordance with the advice of the Commission, this
officer belonging to Central Health Service, on the has been treated as a case of non-acceptance of the
charge that he accepted the proposal for issue of Commission’s advice.
Customs Duty Exemption Certificate (CDEC) in favour
of a Hyderabad based Institution for duty free PROMOTION TO THE SENIOR ADMINISTRATIVE
importation of certain medical equipments submitted GRADE (PAY SCALE OF RS.18,400-22,400) OF
by the then ADG(HA) in violation of laid down THE INDIAN POSTAL SERVICE IN THE
conditions. The Inquiry Officer, after inquiry, DEPARTMENT OF POSTS, MINISTRY OF
concluded that the article of charge was partly proved COMMUNICATIONS AND INFORMATION
and the Disciplinary Authority accepted the same. In TECHNOLOGY
March, 2001 advice of the Commission was sought by
the Ministry of Health and Family Welfare on the case 10.10.1 A proposal for convening a Departmental
with a proposal for a suitable cut in pension against Promotion Committee (DPC) for promotion to the
the Charged Officer. Out of the four ingredients of the Senior Administrative Grade, in the pay scale of
charge, the ingredient of issue of CDEC in violation of Rs.18,400-22,400, of the Indian Postal Service
Customs Notification dated March 1, 1988 had not against three vacancies each for the years 2001-02
been held as proved by the Inquiry Officer and the and 2002-03 was received from the Department of
Disciplinary Authority had accepted the same. The Posts.
Commission, therefore, did not discuss the same.
The remaining charges which were left for discussion 10.10.2 The DPC guidelines issued by the
by the Commission were that (i) he failed to Department of Personnel & Training in O.M.
implement the orders of the superior authorities; (ii) No.22011/5/86-Estt(D) dated April 10, 1989 inter-alia
failed to question the purpose of the visit of ADG to provide that in respect of posts, which are in the level
the Institute and (iii) did not submit proposal of tour of Rs.12,000-16,500 and above, the bench mark
programme of ADG to DG. On consideration of all should be ‘Very Good’. The DoP&T’s O.M. dated
the facts and circumstances of the case, Commission February 8, 2002 provides that the DPC shall grade
observed that though there had been some lapse on officers as ‘Fit’ or ‘Unfit’ only with reference to the
the part of the Charged Officer to withhold CDEC for bench mark of ‘Very Good’. Only those officers who
about 15 days after receipt of the report, the same are graded as ‘Fit’ shall be included in the select panel
was not grave enough warranting cut in his pension. prepared by the DPC in order of their inter-se seniority
In view of the above advice of the Commission to in the feeder grade. There shall be no supersession in
drop the proceeding against the Charged Officer was promotion among those who are found ‘Fit’ by the
communicated to the Ministry on July 10, 2001. DPC in terms of the aforesaid prescribed bench mark
of ‘Very Good’.
10.9.2 In January, 2002 the Ministry again made a
reference, seeking reconsideration of the advice of 10.10.3 Para 13 of the DoP&T’s O.M. dated April 10,
the Commission, disagreeing with the findings of the 1989 provides that an officer whose increments have
Commission stating that on the facts of delaying been withheld or who has been reduced to a lower
implementation of DG’s orders and going on an stage in the time scale cannot be considered on that
inspection tour without any apparent reason and account to be ineligible for promotion to the higher
issuing CDEC without appraising the results of grade as the specific penalty of withholding of
inspection to Directorate General of Health Services, promotion has not been imposed on him. The
the Disciplinary Authority disagreed with the suitability of the officers for promotion should be
Commission. The Commission, on reconsideration of assessed by the DPC as and when occasions arise
the case observed that the Disciplinary Authority had for such assessment. In assessing the suitability, the
not brought out any new fact or legal point warranting DPC will take into account the circumstances leading
reconsideration of the advice already tendered by the to the imposition of the penalty and decide whether, in
Commission. As such, the Commission reiterated the light of the general service record of the officer
their advice to the Ministry on March 20, 2002. and the facts of imposition of penalty, he should be

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 ANNUAL REPORT 2005-06

considered suitable for promotion. However, even

where the DPC considers that despite the penalty, the 10.10.6 Promotion orders issued by the Department of
officer is suitable for promotion, the officer should not Posts were, thus, not according to the
be actually promoted during the currency of the recommendations of the duly constituted DPC. The
penalty. The Government of India further decided that Commission feel that this is a violation of the
a government servant who is found ‘Fit’ for promotion instructions/ guidelines issued by the Government
by the DPC held after the imposition of penalty need itself in the Department of Personnel & Administrative
not be considered again for promotion by the Reforms. The Commission, therefore, considers this
subsequent DPCs merely because he could not be as a case of non-acceptance of their advice.
promoted during the life of panel due to currency of
penalty. After the expiry of period of penalty, the PROMOTION TO THE GRADE OF CONTROLLER
official concerned will be promoted from the same GENERAL OF DEFENCE ACCOUNTS IN THE PAY
panel in which he was originally empanelled. On his SCALE OF Rs.26,000 (FIXED) IN THE DEFENCE
promotion, his pay and seniority in the higher post will ACCOUNTS SERVICE, MINISTRY OF DEFENCE
be fixed according to his position in the panel from
10.11.1 A Departmental Promotion Committee (DPC)
which he is promoted. But the monitory benefits in the
meeting for promotion to the post of Controller
higher post will be admissible only from the date of
General Defence Accounts [pay scale Rs.26,000
actual promotion.
(fixed)] against one vacancy for the year 2003-04 was
held on November 28, 2003. The then Secretary,
10.10.4 The Department of Posts had intimated that
Ministry of Defence and the then Financial Adviser
the senior most eligible officer had been imposed a
(Defence Services) deliberated in the meeting as
penalty of reduction of pay by three stages for a
members of the DPC. The DPC recommended the
period of three years vide order dated March 19,
senior-most officer in the eligibility list for inclusion in
2002. The DPC which met on August 22, 2002
the panel. However, since he had retired from service
considered 10 officers who comprised the zone of
during the vacancy year and extended panel was
consideration for three vacancies for the year 2001-
provided by the DPC wherein the fourth officer in the
02, including the officer on whom the aforesaid
eligibility list was recommended for promotion (the
penalty had been imposed, and assessed each of
second officer was assessed as ‘unfit’ and the
them objectively on the basis of their service records
recommendations of the third officer was placed in
and with particular reference to the Confidential
sealed cover).
Reports for the last five years i.e. from 1995-96 to
1999-2000 in terms of the DoP&T’s O.M. 10.11.2 Subsequently, a proposal was received to
No.22011/9/98-Estt(D) dated September 8, 1998 read convene a meeting of the DPC to consider promotion
with subsequent O.M. dated June 16, 2000 and, after to the grade of Additional Controller General of
carefully taking into account the circumstances Defence Accounts in the scale of Rs.24,050 – 26,000
leading to the imposition of the penalty on the senior- in the Indian Defence Accounts Service, Ministry of
most officer, recommended a panel of three officers Defence. The Ministry had reported two vacancies
including the officer who had been penalised. pertaining to the year 2005-06 on account of
However, since he was not available for promotion appointment of one officer in the grade of Additional
until the currency of penalty period was over, the CGA to the post of Financial Adviser (Defence
vacancy due to his not being available for promotion Services) and another due to retirement in the grade
immediately was carried over to the year 2002-03 for w.e.f. January 31, 2006 of the officer who had been
consideration along with the three existing vacancies. recommended by the DPC of November 28, 2003 for
Thus, the DPC recommended four officers for promotion to the post of CGDA.
promotion in the effective panel for the year 2002-03.
10.11.3 The Ministry was requested to clarify as to
how one of the two vacancies has been shown as
10.10.5 The Department of Posts intimated that the
having occurred due to the retirement of the officer in
case of the officer, on whom the penalty was imposed,
the post of Additional CGDA when the officer was
was placed before the Appointments Committee of the
recommended for promotion to the post of CGDA by
Cabinet for promotion after the currency of the penalty
the duly constituted DPC. The Ministry was also
period was over. The Appointments Committee of the
requested to intimate the reasons for not
Cabinet, however, did not approve his promotion due
implementing the recommendations of the DPC.
to the reason that the date on which the penalty was
imposed on him fell within the reckonable period for 10.11.4 The Ministry intimated that the officer
assessment of the officer’s suitability for promotion recommended by the DPC could not be promoted to
and, as such, he was not promoted. the post of CGDA as the issue of promotion to the

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 ANNUAL REPORT 2005-06

post of CGDA was pending consideration before the Service in the Ministry of Health & Family for the
Hon’ble High Court. The Ministry had also stated that posts of Medical Officer, Senior Medical Officer and
they had gone in Writ Petition in the High Court Chief Medical Officer was received in the
against the orders dated March 19, 2004 of Hon’ble Commission. The Selection Committee Meeting
Tribunal, Principal Bench filed by the officer who was (Personal Talk) for the same was held from January
not recommended by the DPC of November 28, 2003. 7-10, 2003. The Selection Committee, after perusing
The Ministry also stated that since the officer who filed the Character Rolls, Bio-Data etc. and holding
the case had later on been appointed as Financial Personal Talk with the eligible candidates,
Adviser (Defence Services) w.e.f. November 8, 2005, recommended 13 officers – four on deputation basis
the Ministry had decided to withdraw the Writ Petition and nine on absorption basis.
filed by them and for that the Government Counsel
appearing on their behalf has been asked to file 10.12.2 One of the officers had applied for the post of
application to withdraw the Writ Petition. Medical Officer on absorption basis. The Selection
Committee recommended the officer for appointment
10.11.5 It is observed that before the panel
to the post of Medical Officer on absorption basis.
recommended by the DPC for promotion to the post of
The basic condition stipulated for absorption by the
CGDA could be approved by the Appointments
Ministry of Health in their circular/ advertisement viz.
Committee of the Cabinet and promotion orders could
assessment of performance on deputation for two
be issued by the Ministry, the officer not
years is not provided in the notified Central Health
recommended by the DPC moved the Central
Service Rules, 1996. As such, the said stipulation
Administrative Tribunal, Principal Bench in Original
was not taken into account by the Commission in
Appellate (OA) No.2978/2003. The CAT disposed of
assessing the eligibility of the officers for appointment
the OA by order dated March 19, 2004 inter alia
to the posts in question.
directing that un-communicated Annual Confidential
Reports, where there was a downgrading in the
10.12.3 The advice of the Commission was
Annual Confidential Reports of the applicant, should
communicated to the Ministry of Health & Family
be ignored while considering his claim for promotion.
Welfare accordingly. In response to the advice of the
10.11.6 The Commission and the Ministry of Defence Commission, the Ministry requested to review the
filed Writ Petitions against the impugned order dated decision as the officer, recommended for absorption,
March 19, 2004 of the CAT and the Hon’ble High had not completed a period of two years on
Court against the impugned order of the Hon’ble CAT. deputation to assess her performance.
The Hon’ble High Court was pleased to grant stay of
the orders of the CAT. 10.12.4 The case was re-examined and the decision
was reiterated to the Ministry. However, the Ministry
10.11.7 Thus, there was no restriction on the Ministry of Health & Family Welfare disagreed with the advice
on acting on the recommendations of the DPC held on of the Commission and approached the Appointments
November 28, 2003. Committee of the Cabinet. The ACC approved the
10.11.8 As the Ministry failed to implement the proposal of the Ministry of Health & Family Welfare in
recommendations of the duly constituted DPC held on disagreement with the advice of the Commission.
November 28, 2003, the Commission feel that this is a The ACC has also directed the Ministry of Health &
violation of instructions/ guidelines issued by the Family Welfare to make appropriate provisions in the
Government itself i.e. Department of Personnel & Central Health Service Rules, 1996, to provide for
Administrative Reforms. The Commission, therefore, appointment of officers on absorption basis only after
consider this as a case of non-acceptance of their assessing their performance on deputation basis for a
advice. specified period.

SELECTION OF AN OFFICER FOR APPOINTMENT PROMOTION TO THE POST OF CHIEF ENGINEER

ON ABSORPTION BASIS TO THE POST OF (CIVIL) PAY SCALE Rs.18,400-22,400 IN CENTRAL
MEDICAL OFFICER IN GENERAL DUTY MEDICAL PUBLIC WORKS DEPARTMENT, DIRECTORATE
OFFICER SUB-CADRE UNDER CENTRAL HEALTH GENERAL OF WORKS, MINISTRY OF URBAN
SERVICE, MINISTRY OF HEALTH & FAMILY DEVELOPMENT
WELFARE
10.13.1 A proposal for convening a Departmental
10.12.1 A proposal for appointment on deputation/ Promotion Committee for promotion to the grade of
absorption basis of suitable officers under the General Chief Engineer (Civil) in the pay scale of Rs.18,400-
Duty Medical Officer Sub-cadre of Central Health 22,400, in the Directorate General of Works, Central

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 ANNUAL REPORT 2005-06

Public Works Department, Ministry of Urban been imposed a penalty of reduction of pay by one
Development against ten vacancies for the year 2004- stage for a period of two years without cumulative
05 was received from the Ministry of Urban effect and penalty of recovery of Rs.2,37,258/- caused
Development. to Govt. from his pay vide order dated December 18,
2003. The Department also intimated that another
10.13.2 The DPC guidelines issued by the officer was censured vide order dated June 3, 2002
Department of Personnel & Training in Office while yet another officer was awarded a penalty of
Memorandum No.22011/5/86-Estt.(D) dated April 10, stoppage of one increment for one year without
1989, inter alia, provide that in respect of posts, which cumulative effect vide order dated May 2, 2000. The
are in the level of Rs.12000-16500 and above, the DPC which met on March 29, 2005 considered 24
bench mark should be ‘Very Good’. The DoP&T’s officers who comprised the zone of consideration for
O.M. dated February 8, 2002 provides that the DPC 10 vacancies for the year 2004-05 including the
shall grade officers as ‘Fit’ or ‘Unfit’ with reference to officers on whom the aforesaid penalties had been
the bench mark of ‘Very Good’. Only those officers imposed and assessed each of them objectively on
who are graded as ‘Fit’ shall be included in the select the basis of the service records and with particular
panel prepared by the DPC in order of their inter-se reference to the Confidential Reports for the last five
seniority in the feeder grade. There shall be no years, i.e,. from the year 1998-99 to 2002-03 in terms
supersession in promotion among those who are of the DoP&T’s OM No.22011/9/1998-Estt.D dated
found ‘Fit’ by the DPC in terms of the aforesaid September 8, 1998 read with subsequent OM dated
prescribed bench mark of ‘Very Good’. June 16, 2000 and after carefully taking into account
the circumstances leading to the imposition of the
10.13.3 Para 13 of the DoP&T’s O.M. dated April 10, penalty on the officers recommended a panel of 10
1989 provides that an officer whose increments have officers including the three officers who had been
been withheld or who has been reduced to a lower penalised. One officer was recommended in the
stage in the time scale cannot be considered on that extended panel as the seniormost officer in the main
account to be ineligible for promotion to the higher panel had retired during the vacancy year and was not
grade as the specific penalty of withholding promotion available for promotion.
has not been imposed on him. The suitability of the
officers for promotion should be assessed by the DPC 10.13.5 The Directorate General of Works, CPWD
as and when occasions arise for such assessment. In intimated that the Appointments Committee for the
assessing the suitability, the DPC will take into Cabinet had not approved the names of two officers
account the circumstances leading to the imposition of for promotion as the ACC did not consider them
the penalty and decide whether in the light of the suitable for promotion as penalties had been imposed
general service record of the officer and the facts of on them in the reckonable period of assessment for
imposition of penalty, he should be considered promotion, after detailed proceedings under the
suitable for promotion. However, even where the disciplinary rules applicable. As regards the third
DPC considers that despite the penalty, the officer is officer, the ACC have advised the Department to
suitable for promotion, the officer should not be examine the question of his promotion in the context
actually promoted during the currency of the penalty. of decision taken in the matter of filing an appeal
The Government of India, further, decided that a against the judgement of Hon’ble Central
government servant who is found ‘Fit’ for promotion by Administrative Tribunal. The Hon’ble High Court of
the DPC held after the imposition of penalty need not Delhi had dismissed the Writ Petition challenging the
be considered again for promotion by the subsequent orders of Hon’ble CAT, Principal Bench quashing the
DPCs merely because he could not be promoted penalty imposed on him, at the admission stage itself.
during the life of panel due to currency of penalty. The officer filed another Original Appellate No.1675 of
After the expiry of period of penalty, the official 2005 in CAT, Principal Bench, New Delhi praying for
concerned will be promoted from the same panel in directing the Respondent to promote him as regular
which he was originally empanelled. On his Chief Engineer (Civil) in CPWD as per the
promotion, his pay and seniority in the higher post will recommendations of the DPC with reference to his
be fixed according to his position in the panel from juniors. The Hon’ble CAT in this Original Appellate
which he is promoted. But the monetary benefits in observed that “even if Respondent No.1, Secretary,
the higher post will be admissible only from the date of Urban Development has decided to prefer a Writ
actual promotion. Petition before the Hon’ble High Court challenging the
order of this Tribunal that will not come in their way to
10.13.4 The Directorate General of Works, CPWD had consider the case of the applicant for promotion to the
intimated that one officer in the grade of SE(Civil) had post of Chief Engineer (Civil). In the event Hon’ble

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High Court upsets the order of this Tribunal then Development are thus not in accordance with the
automatically the order of promotion shall also abide recommendations of the duly constituted
by the said decision. Accordingly, we direct that if Departmental Promotion Committee. The Commission
Respondent No.1 finds the applicant otherwise eligible feel that this is a violation of the instructions/
in the said order of promotion, they may also indicate guidelines issued by the Government itself in the
about the said fact.” In view of the above orders of the Department of Personnel and Training. The
Hon’ble CAT, Principal Bench in Original Appellate Commission, therefore, consider this as a case of
No.1675 of 2005, the Department have been informed non-acceptance of their advice.
(in connection with another proposal received for the
vacancy year 2005-06) that he shall not be considered
again by the DPC for the vacancy year 2005-06 as he
already stands recommended for inclusion in the
panel for the vacancy year 2004-05.

10.13.6 Promotion orders issued by the Directorate

General of Works (CPWD), Ministry of Urban

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