V.K. Gupta vs Municipal Corporation Of Delhi
1992 Latest Caselaw 532 Del

JUDGMENT

J.K. Mehra, J.

(1) Today only Civil Misc. Petition No. 5597/91 is listed for hearing. However. it is agreed between the counsel for the parties that since the controversy involved lies in a very narrow compass the writ petition itself may be heard and disposed of. Accordingly I have heard- the arguments on the writ petition and I proceed to dispose of the main writ petition by this judgment.

(2) The present writ petition had been filed by the petitioner feeling aggrieved by the appointment of S/Shri K.S Sidhu, J.P. Khurana, Prem Parkash, B.S. Solanki and Baldev Singh as Superintending Engineers and the petitioner and Sh. R.K. Jain being left out of consideration on the sole ground that there arc vigilance cases against them. It is not disputed that there were 7 posts and that aforesaid five persons plus the petitioner and Shri R.K. Jain were the candidates who were being considered for such promotions. The promotion to the post of Superintending Engineer on ad- hoc basis were affected on 26th November 1990. Prior to that these 7 gentlemen had already been working on the said post on current duty charge basis. The petitioner had originally joined service of the respondent as Junior Engineer on 13.12.60. He was promoted as Assistant Engineer on adhoc basis on 4.4.69 and was appointed as Assistant Engineer on regular basis w.e.f. 2.1.74. He was further promoted to the post of Executive Engineer on ad-joc basis on 4th April 1978 and on 11.8.87 he was appointed on regular basis. Thereafter he has been holding current duly charge of the post of Superintending Engineer w.c.f 2.2.89. Admittedly, on 22.1 1.90 no charge sheet had been issued and it was only a vigilance inquiry going on. In that view of the mailer, the counsel contends that his claim to such promotion could not have been ignored merely on the basis of pendency of some vigilance inquiry. He has in support relied upon a Division Bench Judgment in C.W. 2278/87. He has further relied upon the pronouncement of Hon'bic Ihe Supreme Court in Union of India Vs. Jankiraman where the Hon'ble Supreme Court has held as under:- "THE conclusion No. 1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/criminal proceedings arc pending against the employee. To deny ihe said benefit, they must be at the relevant lime pending at the stage when charge-memo/charge - sheet has already been issued to the employee. Thus read, there is no inconsistency in the two conclusions. We therefore, repel the challenge of Ihe appellant-authorities to the said finding of the Full Bench of Ihe Tribunal."

(3) The Division Bench of this court in the aforesaid judgment had also laid down "mere contemplation for initiating disciplinary proceedings is no bar for giving promotion to the petition. The bar is only when disciplinary proceedings have been initialed by issue of a charge-sheet." Counsel for the respondent, on the other hand. has not been able to show any law to the contrary. He has merely staled that it is a selection post and the respondent could appoint any one. There could he some substance in this contention only if there were Lesser number of posts and they were considering each candidate's merit and selecting some out of those. That is not the case here. Here there were 7 posts and there were 7 candidates and the petitioner and another Mr. R.K.Jain were ignored on the sole ground of vigilance cases being pending against them. Such action is clearly contrary to the law laid down by Hon'ble Ihe Supreme Court in the aforesaid ruling as also what had been held by the Division Bench of this Court.

(4) In these circumstances. I allow the writ petition and issue a writ of mandamus directing the respondent to promote the petitioner to the post of Superintending Engineer on ad hoc basis like the other five persons who were so appointed with effect from 22.11.90 with all consequential benefits including pay and allowances etc. In the circumstances of the case. there will be no order as to costs.