Ved Prakash Gupta vs Municipal Corporation Of Delhi
1997 Latest Caselaw 660 Del

JUDGMENT

Devinder Gupta, J.

(1) In this writ petition instituted on 22.7.1994, the petitioner sought direction against the respondent/M.C.D. for opening of the result of the Promotion Committee kept in seal cover and to promote him as Assistant Engineer w.e.f. 30.8.1990 and to fix his seniority in the final seniority list of Assistant Engineers (Civil) dated 17.2.1993 with reference to the date of his initial appointment as Junior Engineer w.e.f. 30.7.1968 with all other consequential benefits.

(2) It is alleged that the petitioner is in service under the respondent and had been assigned the work of an Assistant Engineer on "current duty charge". The service of the petitioner is regulated by the provisions of the Delhi Municipal Corporation Act, the D.M.C.Service (Control and Appeal) Regulations, 1959,CCS (C.C.A.) Rules and other rules and regulations pertaining to the employees of the Central Government. The petitioner along with five other works assistants, namely, Shri Madan Lal,Shri Ashok Kumar Kalyan, Shri Prem Singh Dahiya, Shri Dharam Pal Sharma and Shri Amarjit Singh was appointed as Section Officers on temporary basis. The said post of Section Officer now stands redesignated as the post of Junior Engineer. The petitioner alongwith the five other persons, who were appointed section officer vide office order No.814/Engg./Estt.dated 30th July, 1968 was declared surplus and was ordered to be relieved with effect from 30.9.1968 along with others. The petitioner was not served with any relieving order either on 30.9.1968 or on 1.10.1968. The petitioner continued discharging his duties till 11.10.1968. It was only on 11.10.1968 that the petitioner was told to hand over the charge of his post. Accordingly the petitioner handed over the charge of his post on 11.10.1968.

(3) The respondent appointed ten persons as Section Officers with effect from 19.10.1968, which also included the five persons, who were appointed Section Officers alongwith the petitioner through office order dated 30th July, 1968. The remaining were new appointees. The petitioner made a representation to the respondent that he should also be taken back in service as a Section Officer. As the respondent needed Section Officers for a proper conduct of its work, the petitioner was duly taken back in service by the respondent through office order No.895/Engg/Estt. dated 31.10.1968. One Shri Madan Lal Garg, who was appointed as a Section Officer along with the petitioner and four other persons on 30.7.1968 and who was taken back in service on 19.10.1968 made a representation that he be given his seniority with effect from his date of initial appointment i.e. 30.7.1968. The said representation of Shri Madan Lal Garg was responded to favourably by the respondent and through order dated 6.6.1973 Shri Madan Lal Garg was given his seniority with effect from 30.7.1968. The petitioner also made representations to the respondent from time to time that he be given his seniority w.e.f. 30.7.1968 but the same were kept pending by the respondent. Even in the provisional seniority list of Junior Engineers circulated on 25.9.1979, the petitioner was shown at serial No.256 with 31.10.1968 as his date of appointment. By 1985 the petitioner was entitled to be given promotion as Assistant Engineer on regular basis. However, regular promotions as per rules were not made by the respondent. On 1.7.1987 the petitioner was promoted as Assistant Engineer on current duty charge. The respondent continued to ignore the petitioner's claim for proper fixation of his seniority with effect from 30.7.1968 and for promotion to the post of Assistant Engineer on regular basis on the ground that departmental proceedings were pending against him.

(4) In the year 1988 the petitioner was working as the Zonal Engineer (B), Karol Bagh, New Delhi when the respondent contemplated initiating departmental proceedings against the petitioner in respect of alleged unauthorised construction done in two properties situated in Karol Bagh. The petitioner was served with show cause notice No.1/321/88/CPC/Vig/46 dated 23.1.1989. Again second show cause notice No.1/297/88/CPC/Vig/803 dated 22.3.1990 was served pertaining to the second departmental case. The petitioner submitted his reply to the said notices. The Municipal Engineer-cum-Engineer-in-Chief of the respondent Corporation proposed penalty of 'Censure' upon the petitioner in both the cases. In the year 1990 the respondent made regular appointments to the post of Assistant Engineers (Civil). The case of the petitioner was considered for promotion by the Departmental Promotion Committee but the result was kept in a sealed cover. After passing of orders whereby the penalty of 'Censure' was inflicted on the petitioner in both the departmental cases, the sealed cover containing the result of the petitioner was liable to be opened and the recommendation of the Departmental Promotion Committee was liable to be implemented. However, the respondent did not open the seal cover, and failed to implement the report of the Departmental Promotion Committee. It is the petitioner's case that pendency of the departmental proceedings against him had no bearing at all on the issue of fixation of his seniority w.e.f. 30.7.1968. This issue is separate and distinct.

(5) As regards his promotion, it is claimed by the petitioner that the respondent had no justification at all for not opening the sealed cover containing the recommendation of the Departmental Promotion Committee after the departmental proceedings stood concluded. The petitioner was inflicted the penalty of 'Censure', which is a minor penalty and being the lightest of the minor penalties provided in the Delhi Municipal Corporation (Control & Appeal) Regulations, 1959, after the departmental proceedings stood concluded, he was entitled to be promoted as Assistant Engineer on regular basis from the back date, namely, 1990. It is the petitioner's case that denial of promotion from 1990 de site very minor punishment of 'Censure' is an act of arbitrariness on the part of the respondent. It is also alleged that the provisional seniority list of Assistant Engineers (Civil) was finalised by the respondents on 17.2.1993. The petitioner's name was not shown in this final seniority list. He was not given his seniority with effect the date of his initial appointment as Junior Engineer on 30.7.1968. The petitioner has not been treated at par with the persons mentioned in para 5 of the petition, namely, Shri Madan Lal Garg, Shri Ashok Kumar Kalyan, Shri Prem Singh Dahiya, Shri Dharam Pal Sharma and Shri Amarjit Singh and there is no reason why promotion be not accorded to the petitioner from the due date. In this back ground the aforementioned directions have been sought.

(6) The respondent's case is that the petitioner was appointed purely on temporary basis for a fixed period through office memorandum dated 29.7.1968, which appointment came to end by 30.9.1968. On the expiry of the said period, the petitioner was discontinued from service. Certain vacancies were created in the department and all those, including the petitioner, who had served earlier were offered the appointments to the post of Section Officer (Civil) through office order dated 31.10.1968. The petitioner gave his acceptance and applied for the post on 31.10.1968. Since the petitioner's first appointment was purely for a limited period, which period came to end, no benefit of the said service could be availed of by him. The petitioner having accepted the position, applied afresh on 31.10.1968. After expiry of a long period of 8 years on 27.10.1978, the petitioner represented that his seniority in the cadre of Section Officer (Civil), [re-designated as Junior Engineer (Civil)] be fixed from 30.7.1968. It is the respondent's case that the petitioner's case was duly considered and decision was taken that temporary appointment could not be counted for the purpose of fixation of seniority. His seniority in the cadre of Junior Engineer had rightly been fixed in the final seniority list circulated on 26.11.1983 by reckoning the date of regular appointment to the post, namely, 31.10.1968. Due to non-challenge of final seniority list circulated on 26.11.1983 till 1994, when the instant petition was filed, the petitioner is debarred now from raking up stale matter.

(7) On the petitioner's claim regarding Assistant Engineer (Civil) and placing him in the seniority list of Assistant Engineers (Civil), it is the respondent's case that seniority of an official in a particular cadre is to be determined from the date of regular appointment to the said post. The petitioner is yet to be given regular appointment to the said post of Assistant Engineer (Civil). As such the question of the petitioner's placing in the seniority list circulated on 17.2.1993 of Assistant Engineers (Civil) does not arise. The petitioner was considered by the Departmental Promotion Committee held on 10.8.1990 for officiating promotion to the post of Assistant Engineer (Civil) when it was noticed that the petitioner was facing regular departmental action in two cases and as such the assessment of the petitioner was kept in a sealed cover in the light of the Government of India Instructions dated 12.1.1988. Through orders dated 21.8.1992 and 2.2.1993, penalty of "Censure" was inflicted upon the petitioner in both the casses. It is stated that apparently the penalty of "Censure" is a penalty, which is inflicted upon a person who has been found guilty for some blameworthy act of commission and omission and would definitely have a bearing on the assessment of merits and suitability for promotion to the higher post. It is stated that sealed cover cannot be opened and in the light of the facts stated in reply the petitioner would be considered for promotion to the post of Assistant Engineer (Civil) in the next Departmental Promotion Committee, as and when it is held. It is also stated that Current Duty Charge is merely a stop gap arrangement and does not bestow any right or claim of any nature whatsoever for regular appointment. The petitioner cannot claim fixation of seniority on the post of Assistant Engineer (Civil) till he is regularised on the said post. The seniority can be decided only thereafter. Penalty of censure is not a bar for consideration of incumbent for promotion but the same is definitely a bar for giving actual promotion.

(8) In the light of the aforementioned pleadings, learned counsel for the prates were heard at length.

(9) Learned counsel for the petitioner in so far as the petitioner's claim for according seniority to the petitioner from the date of his initial appointment in July, 1968 is concerned, has placed reliance upon the circumstances of taking the initial date of appointment of five other persons into consideration while according seniority to them, namely, Shri Madan Lal Garg, Shri Ashok Kumar, Shri Prem Singh Dahiya, Shri Dharam Pal Sharma and Shri Amarjit Singh. Though in the reply filed by the respondents it has not been disputed that Shri Madan Lal Garg, Shri Ashok Kumar, Shri Prem Singh Dahiya, Shri Dharam Pal Sharma and Shri Amarjit Singh were taken in service on the date of their joining, namely, 30.7.1968 and 19.10.1968 respectively, but that ground alone is not sufficient to entitle the petitioner to claim seniority as of right from that date in the absence of any rules. On seniority list (annexure-P.3) dated 25.9.1979 being finalised it remained unchallenged for more than 14 years till the filing of the instant petition except of making of some representations by the petitioner. In case final seniority list had been circulated on 25.9.1979 and no redress was given by the respondents on the representation of the petitioner, nothing prevented the petitioner from challenging the same in accordance with law within a reasonable time. The challenge now made only in the year 1994 by filing the instant petition is highly belated and on that score alone the respondents cannot be directed to upset the entire seniority list and there is no reason why the petitioner be granted this relief.

(10) As regards the promotional post of Assistant Engineer (Civil), there is no dispute on the facts that the petitioner has not regularly been appointed, but his case was duly considered along with other eligible candidates on 10.8.1990 and there is also no denial to this fact that on that date the petitioner was facing a regular departmental action. Respondents rightly kept the petitioner's assessment in sealed cover, in the light of the Government of India Instructions dated 12.1.1988. The petitioner's case is that penalty of 'Censure' imposed thereafter should not be treated as a bar for promotion and reliance is placed by the petitioner on the instructions, which have been issued pursuant to the clarification given in two points, which had arisen. The first point was whether 'Censure' should not be a bar to the eligibility to sit for a departmental/promotional examination for promotion. The instructions stated that every person eligible for promotion and in the field of choice has to be considered for promotion. The fact of imposition of minor penalty of Censure does not by itself stand against the consideration of such person for promotion as his fitness for the promotion has to be adjudged in the case of promotion by seniority on the basis of an over all assessment of his service record and in case of promotion by selection on merit, on the basis of his merit categarisation, which is again based upon over all assessment of his service record.

(11) The respondents have placed reliance upon instructions dated 14.9.1992, which were issued on review of earlier instructions dated 12.1.1988, in the light of the decision of the Supreme Court in Union of India etc. etc. v. K.V.Jankiraman etc. etc. . Respondents have also stated in their reply that penalty of "Censure" is not a bar for consideration of an incumbent for promotion but the same is a bar for giving actual promotion.

(12) When the petitioner's name was considered along with his juniors for promotion on 10.8.1990, there is no dispute that departmental proceedings were pending against him and in the light of the pendency of the departmental proceedings, the respondents were justified in not giving actual promotion to the petitioner. Proceedings culminated on 21.8.1992 and 2.2.1993 when penalty of censure was inflicted upon the petitioner in both the cases. Naturally, this penalty of Censure cannot come in the way of according promotion to the petitioner, but that will not give an adequate right to the petitioner to seek directions against the respondents to open the sealed cover. The petitioner's case will have to be considered for promotion and his fitness for the promotion will have to be adjudged in the case of promotion by seniority on the basis of over all assessment of his service record and in case of promotion by selection on merits, on the basis of his merit categarisation, which is again based upon over all assessment of his service record. The petitioner's case will have to be considered in the light of the instructions dated 14.9.1992, which state:-

"On the conclusion of the disciplinary case/criminal prosecution which results in dropping of allegations against the Govt. servant, the sealed cover or covers shall be opened. In case the Government servants completely exonerated, the due date of his promotion will be determined with reference to the position assigned to him in the findings kept in the sealed cover/covers and with reference to the date of promotion of his next junior on the basis of such position. The Government servant may be promoted, if necessary, by reverting the junior most officiating person. He may be promoted notionally with reference to the date of promotion of his junior. However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion proceeding the date of actual promotion, and if so to what extent, will be decided by the appointing authority by taking into consideration all the facts and circumstances of the disciplinary proceedings/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so. It is not possible to anticipate and enumerate exhaustively all the circumstances under which such denials of arrears of salary or part of it may become necessary. However, there may be cases where the proceedings, whether disciplinary or criminal, are, for example delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. These are only some of the circumstances where such denial can be justified.

3.1.IF any penalty is imposed on the Government servant as a result of the disciplinary proceedings or if he is found guilty in the criminal prosecution against him, the findings of the sealed cover/covers shall not be acted upon. His case for promotion may be considered by the next Dpc in the normal course and having regard to the penalty imposed on him.

3.2It is also clarified that in a case where disciplinary proceedings have been held under the relevant disciplinary rules, 'warning' should not be issued as a result of such proceedings. If it is found, as a result of the proceedings, that some blame attached to the Government servant, at least the penalty of 'censure' should be imposed."

(13) It will be a case where direction cannot be issued, in the light of the aforementioned instructions, for opening of sealed cover. Instructions say that the petitioner's case for promotion will have to be considered by the next Departmental Promotion Committee in the normal course and having regard to the penalty imposed upon him. Obviously penalty imposed upon him is 'Censure', which does not debar the petitioner's consideration for promotion to the higher post. In these circumstances, the respondents were justified in not having opened the sealed cover by correctly interpreting the instructions dated 14.9.1992, which were invoked on the date when penalty of 'Censure' was imposed. By imposing penalty of 'Censure' promotion will have to be accorded in the normal course. Since the petitioner is not debarred from being promoted, he has only a right of consideration and his case has to be considered in the light of the over all assessment of his service record. We take on record the respondents' statement that the petitioner's case was required to be duly considered in the next Departmental Promotion Committee, which was to be held immediately after the date of imposition of penalty. In case it was not considered, the same has to be considered with reference to the said date and in case the petitioner is found eligible for being promoted, promotion has to be accorded and from the said date. The petition stands disposed of in these terms by directing the respondents to implement the decision within a period of three months from the date of receipt of writ order. The petitioner will also be accorded all consequential benefits.