M.L. Chadha vs Municipal Corporation Of Delhi
1998 Latest Caselaw 212 Del

ORDER

K. Ramamoorthy, J.

1. The petitioner was working Assistant Engineer (Electrical) in the first respondent administration. On 23.08.1976 his juniors were promoted as Assistant Engineer and his case was not considered for the post of Assistant Engineer. A seniority list was prepared. He instituted a suit claiming the relief that his case had not been considered as on 23.08.1976 and that his position in the seniority list be recognised and he should be fixed accordingly. On 04.02.1986 the suit was decreed. In November 1987, the DPC was held for considering those persons in the seniority list for the post of Executive Engineer but the case of the petitioner was not considered. On 08.05.1990 the first respondent realising the mistake committed and on the basis of the decree Datedd 04.02.1986, issued the revised seniority list putting the petitioner in the proper rank as Assistant Enbgineer. The proceedings Datedd 08.05.1990 reads as under:

DELHI ELECTRIC SUPPLY UNDERTAKING

(MUNICIPAL CORPORATION OF DELHI

No.F/AO(P.VI)90-91/23 Datedd 08.05.1990

A D D E N D A

ADDENDA TO OFFICE ORDER NO.E/AO(P.III)

SENIORITY/206 Datedd 02.02.1981 REGARD-

ING SENIORITY LIST OF ASSTT. ENGINEERS.

The final Seniority List of the category of Officers working as Assistant Engineers (Elect./Mech.) was circulated vide Office Order No.E/AC (P.III)/81-82/13 Datedd 15.04.81. The last name in that final Seniority-list at S.No.25 was that of Shri R.M. Dham.

As notified by O/AD(G) vide their Office Orders No. F.7(5)/A&G/Tech./84/36 Datedd 25.05.84 No. F.7(5)/A&G/Tech/84/132 Datedd 24.12.86 and No F.2( )/A&G/Tech/108 Datedd 3.1.90, the names of the Officials as mentioned in the enclosed Annexure are proposed to be placed below the name of Shri R.N. Dham, whose name appears at Sr. No.25 of the Seniority-list issued vide Office Order Datedd 02.02.1981 and above the name of Shri O.D. Sharma at Sl. No. 26 of the Seniority-list issued vide Office order No.E/AO(P.III)/82-83/Seniority/277 Datedd 13.1.83.

Objections, if any, to the proposed addenda may be submitted by the Officers concerned within one month of the issue of this Office order. In case, no objection/representations are received within the stipulated period, the addenda will be treated as final and notified accordingly.

This issues with the approval of A.G.M(A).

Sd/-

7.5.90

2. The petitioner was shown at serial No.25-D. In August, 1990 a Review DPC was convened. The minutes of the meeting of the DPC reads as under:

File No. F.2(12)/A&G/Tech. Confidential

DELHI ELECTRIC SUPPLY UNDERTAKING

Minutes of the Meeting of the Review D.P.C. held in the Chamber of General Manager on 09.08.1990.

PRESENT:

1. Dr. R.Clemant I lengo Chairman General Manager;

2. Sh. Arun K. Mathur Member Addl. General Manager (Admn.)

3. Sh. B.B. Das Member Addl. General Manager (Tech.)

AGENDA:

Promotion of Officers to the grade of X.e.N (Elect./Mech.) on adhoc basis in the pay scale of Rs. 3000-4875.

The D.P.C. were informed that consequent upon giving national promotion to the following officers in the grade of A.E (Elect./Mech.) w.e.f 23.8.1976 and consequent reformation of their Seniority in the final Seniority-list of A.e. (Elect./Mech.) circulated vide Office Order Datedd 2.2.1981 at S.No. 25-D to 25-I (incorporated vide Office Order No.E/AO:PVI)/90-91/69 Datedd 18.7.1990) their cases are required to be considered for promotion as X.E.N (Elect./Mech.) on ad-hoc basis nationally w.e.f. the Dated, their juniors had been promoted against 90% posts reserved for Degree holders in accordance with the R & P Regulations:

1. Sh. H.C. Khaneja

2. Sh. M.L. Chadha

3. Sh. Vishwa Mittar

4. Sh. Bharat Bhushan

5. Sh. D.K. Khattar

6. Sh. S.K. Batra.

The D.P.C. were further informed that consequent upon these refixation of seniority in the grade of A.e. (Elect./Mech.), their names are required to be sent to U.P.S.C. for holding a review D.P.C. for their regularisation in the grade of A.X.E.N. (Elect./Mech.) with retrospective effect. But as this process is likely to take sometime, these Officers are to be considered for promotion to the grade of X.E.N (Elect./Mech.) on ad-hoc basis considering their seniority in the grade of A.E. (Elect./Mech.) provisionally.

The D.P.C. were further informed that the names of the six officers came above the name of Sh. V.K. Pandey in the seniority list of A.E. (Elect./Mech.) who had been promoted as X.E.N (Elect./Mech.) on ad hoc basis w.e.f. 1.12.1987 as a result of D.P.C. held on 29.9.87. So, the present D.P.C. is to consider the names of the above mentioned six Officers by reviewing the earli er D.P.C. held on 29.9.87.

Accordingly, the D.P.C. considered the C.Rs and other service record of the above six officers and assessed them as indicated against each:

      1.    Sh. H.C. Khaneja                  Fit
     2.    Sh. M.L. Chadha As in sealed cover
     3.   Sh. Vishwa Mittar                  Fit
     4.   Sh. Bharat Bhushan                 Fit
     5.   Sh. D.K. Khattar                   Fit
     6.   Sh. S.K. Batra                     Fit
  

Accordingly on the basis of the above assessment, the D.P.C. recommend the names of the following Officers for promotion to the grade of X.E.N (Elect./Mech.) on ad hoc basis nationally w.e.f 1.12.1987 i.e. the Dated, when their juniors Sh. V.K. Mutrey was promoted and for placement of their names at S.No. 3-A to 3-E i.e., below the name of Shri S.K. Sharma and above the name of Sh. V.K. Mutery in the panel recommended by the D.P.C. on 29.9.1987.

1. Sh. H.C. Khaneja

2. Sh. Vishwa Mittar

3. Sh. Bharat Bhushan

4. Sh. D.K. Khattar

5. Sh. S.K. Batra.

The D.P.C. were informed that no Vigilence disciplinary case is pending against any of the Officers mentioned above, recommended for promotion to the post of X.E.N (Elect./Mech) on ad hoc basis.

ITEM No.356:

Decision No. 816/DESC Datedd 15.1.91

As proposed by the GM(E) in his letter No. F2(12)A&G/Tech/Mtg-902 Datedd 21.12.1990, approval for the panel of 5 officers, namely, Sarvshri H.C. Khaneja, Vishwa Mittar, Bharat Bhushan, D.K. Khattar and S.K. Batra for promotion as and when vacancy arises, to the grade of XEN (E/M) on ad hoc basis for a period of one year or till such time, the posts are filled up on regular basis, whichever is earlier, is accorded.

3. On the premise that there was a chargesheet issued on 06.03.1989, the DPC adopted the sealed cover procedure though the DPC held in August 1990 was only a review DPC of the earlier DPC held in November 1987 and it was not a DPC convened for the purpose of considering the candiDateds afresh. It is, as if for all practical purposes the DPC was being held as in November 1987.

4. The petitioner claims that having regard to the service record he was entitled to be promoted as Executive Engineer and the DPC which met on 09.08.90 should not have adopted the sealed cover procedure.

5. The learned counsel for the petitioner Mr. Gupta submits that when a Review DPC was held in August 1990, that Committee was not justified is being recourse to the sealed cover procedure as there was no chargesheet pending against the petitioner as on September 1987 or November 1987 and the charge could be taken into account only at the time of consideration for promotion of the officers subsequent to the Dated of issue of the charge. According to Mr. Gupta, learned counsel for the petitioner the clock cannot be put back as done by the DPC which was holding review meeting in August 1990. The respondents have not taken any specific stand in the counter affidavit that if in September or November 1987 the case of the petitioner has been considered having regard to the service record he would not have been promoted as Executive Engineer. In the absence of any material against the petitioner as on 1987 he should have been promoted to the post of Executive Engineer. The learned counsel Mr. Gupta relied upon the judgment of this court reported in Anand Kumar Versus Union of India and anr. 1973(1) SLR 343 wherein this court was invited to decide a similar question under exactly similar circumstances only difference being there was earlier chargesheet which was cancelled later and here the position is that there was no charge against the delinquent official on the relevant Dated of consideration for promotion. The learned counsel has referred to the circumstances in the following terms:

The only justification for its action pleaded by the respondents is that as the petitioner was involved in a disciplinary proceedings he could not have been so promoted. In so far as the action of the respondents refusing to promote him in pursuance of the order Datedd 30.01.1967 was concerned at that time there may not be much difficulty in accepting the argument of the counsel for the respondents. The position, however, changed materially when the order of 8.6.65 was cancelled by the respondents on 2.3.68. Cancellation of th change sheet Datedd 8.6.65 necessarily means that the petitioner was not involved in any disciplinary proceedings prior to 3.8.67 when a new charge sheet was given to him. No doubt at the time when originally the promotions were made on 30.1.1967 the petitioners could not be given promotion and his Name had to be kept in abeyance because there were proceedings pending against him in pursuance of the charge sheet of 8.6.1865. the same, however, cannot be said when that order was withdrawn on 2.3.1968. In order, therefore to justify the refusal to any decision to give effect to the promotion order of 30.1.1967, it has to be shown that the petitioner was involved in any disciplinary proceedings at that particular time. The whole purpose of considering the cases of those persons who are involved in disciplinary proceedings is to see that their future prospects are not affected adversely. As a matter of fact this was itself the recommendation of the Ministry of Home Affairs when they issued instructions in Annexure PA providing that even those persons who are under suspension or were being proceeded against would be considered so that if subsequently they are exonerated their prospects of promotion may not be affected. The procedure laid down in annexure RA also provides that if a finding indicates that the individual was considered fit for promotion or confirmation and he is completely exonerated and there has been no deterioration in his subsequent recorded performance, the recommendation of the DPC will be implemented. Now assume that in the present case there had been no subsequent charge sheet of 3.8.1967 and 6.3.1968 and all that had happened was that the original chargesheet of 8.6.1965 had been cancelled by the order of 2.3.1968. Could in these circumstances it be said that because disciplinary proceedings were pending against the petitioner in 1966-67 when promotions were ordered the same should not be carried out subsequently when the proceedings against him were dropped. It seems to me that such an argument would strike at the very root of the procedure laid down by the instructions itself and would work obviously manifest injustice to the employees. In my view the only justification for not promoting a person even though selected by the D.P.C. can be if ultimately he is not completely exonerated. But here because of the cancellation of charge sheet of 8.6.1965, the petitioner was not involved in any disciplinary proceedings in 1966-67 when promotion had to be given effect to, and there would be thus no justification not to consider his case on the basis of selection by the D.P.C. and in terms of the procedure laid down in annexure RA of 7.6.1965. Had the petitioner not been selected in 1966 by the D.P.C. and had his case been considered in 1968-69 when he had been found guilty in pursuance of the charge sheet on 3.8.1967 and 6.3.1968 the position might have been different. In that case there would be disciplinary proceedings pending against him resulting in finding him guilty. But in the present case, the petitioner is only seeking to establish that his right which had vested in him in 1966, should be given effect to because there was in fact no disciplinary proceedings pending against him at that point of time and he was not thus guilty in pursuance of this. If the petitioner was wrongly charge sheeted on 8.6.1965 (as is clear from its cancellation on 2.3.1968), he has a right to urge that on termination of those proceedings his case should be considered on the footing that there were no disciplinary proceedings in which he was involved on 30.1.1967. As a matter of fact even the respondents themselves have further liberalised the procedure in case of those persons who are even found guilty by the procedure in case of those persons should be reviewed by a special D.P.C and decision taken whether or not to promote the individual in spite of the disciplinary proceedings against him and the punishment awarded to him. It has also been provided that if the decision is in favour of the person promotion will be effected and seniority restored according to the panel position assigned to him by the D.P.C. which originally considered him. (This procedure is laid down in a circular by the Engineer in Chief No. 43319/EIR Datedd 31.12.1970 and is to be found in the file PF/File 31291/EID (CP) Main heading Promotion Case-MES 304316 Shri Anand Kumar, produced in the court by the respondents). I am pointing this out because in the return it has been sought to be explained that the panel is normally to be operate for one year with effect from the Dated of the D.P.C. meeting subject to a maximum of one and half year, and, therefore, the panel which was formed in October, 1967 lapsed in March, 1969 and the proceedings against the petitioner only concluded subsequently on 7th August 1969. The petitioner is not making a grievance is that having been selected by the D.P.C in 1966 and the promotion having been ordered in January 1967, the same could not be denied to him subsequently because the very basis on which it was withheld namely the charge sheet of 8.6.1965 had been cancelled on 2.3.1968, and was thus non existent at the relevant time. In my opinion the respondents have denied promotion to the petitioner on the mistaken assumption that subsequent charge sheet of 3.8.1967 and 6.3.1968 were relevant for its action in November, 1966 or January 1967. This obviously is fallacious and not premissible according to Rules and to the procedure laid down. At the relevant time, it has to be taken that there were no disciplinary proceedings against the petitioner. Once, therefore the petitioner had been selected and an order of promotion had been made on 30.01.1967 the same should have been given effect to subsequently, when charge sheet of 8.6.1965, refusal of the respondent to give him due promotion on the basis of selection by D.P.C. in 1966 and refusal to give effect to his promotion order of 30.1.1967 were unauthorised and illegal.

6. It is stated by Mr. Gupta learned counsel for the petitioner that the petitioner retired from service on 31.11.1993 and chances of being considered to next higher post would not arise. Therefore, we are concerned only with the promotion of the petitioner to the post of Executive Engineer as on 1987.

7. Mr. Gupta learned counsel for the petitioner also brought to my notice that pursuant to the charge an enquiry was held and punishment was imposed on the petitioner imposing withholding of two increments and that period also had expired.

8. The position in law is very clear that when as on November 1987 there was no charge against the petitioner he ought to have been considered for promotion. The respondents having failed to consider his case as his position in the seniority list was wrongly fixed, therefore, the legal effect is that his seniority was fixed in accordance with law as on 23.08.1976.

For the purpose of this case it has notionally taken into account that his seniority was fixed as per the case of the petitioner and his case was considered in November 1987 or September 1987 and in November 1987 the DPC held, therefore, could not deny to the petition the promotion to the post of Executive Engineer as on November 1987.

9. The petitioner is now claiming the promotion from December 1987 because the DPC was held in November 1987. The respondent shall open the sealed cover as per the DPC held in August 1990 and issue necessary orders for the promotion of the petitioner to the post of Executive Engineer from 01.12.1987 on the Dated on which his junior was promoted to the post of Executive Engineer and the respondents shall give to the petitioner all the consequential benefits. The respondents shall pass necessary orders on or before 31.07.1998. The writ petition stands allowed in the above terms.