Mahinder Singh vs Municipal Corporation Of Delhi
1999 Latest Caselaw 1087 Del

ORDER

A.K. Sikri, J.

1. Nobody appears on behalf of the respondents even when the matter is called out three times.

2. The petitioner has filed this writ petition with the prayer to open sealed cover which was resorted to after considering the case of the petitioner for promotion in the DPC held in June, 1990. At that time departmental enquiry was pending against the petitioner relating to chargesheet dated 10.3.86 to 20.2.90. The case of the petitioner is that ultimately in both the enquiries he was exonerated vide orders dated 11th June, 1992 and 18th June, 1994. respectively. It is the submission of the petitioner that after he was exonerated of the charges levelled against him vide chargesheet dated 10th March, 1986 and 20th February, 1990, result of his promotion which was kept in sealed cover were not declared on the ground of pendency of another chargesheet has been issued against him. Since the respondents did not respond to repeated representations made by the petitioner, he filed the present writ petition.

3. In the counter affidavit the respondents have taken the stand that sealed cover is not opened in view of the enquiries pending against the petitioner for which the petitioner was served with chargesheet dated 22.11.1990 and 4.4.1995 as enquiries in respect of these chargesheet is still pending. The stand of the respondents is clearly untenable. DPC which considered the case of the petitioner for promotion to the post of Executive Engineer was held in June 1990. The matter was kept in sealed cover in view of the departmental enquiries relating to the chargesheet dated 10.3.86 and 20.2.290 pending at the relevant time. It is the outcome of these two chargesheets which is relevant insofar as question of pending the sealed cover relating to promotion of the petitioner, which was resorted to in June 1990, is concerned. Any chargesheets issued subsequent thereto cannot be put against the petitioner and it cannot be a reason for not opening the sealed cover and giving effect to the recommendation of the DPC held in June 1990. This position is amply clear in view of O.M. dated 14th September, 1992 issued by Ministry of Personnel, Public Grievances and Pension, Department of Personnel and Training and particularly para 3 and 5.3 thereof which reads as under :-

3. "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 servant is 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 Service 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 preceding 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 proceeding/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.

5.3: If the Government servant concerned is acquitted in the criminal prosecution on the merits of the case or is fully exonerated in the departmental proceedings. the ad-hoc promotion already made may be confirmed and the promotion treated as regular one form the date of the ad-hoc promotion with all attendant benefits. In case the Government servant could have normally got his regular promotion from a date prior to the date of his ad-hoc promotion with reference to his placement. in the DPC proceedings kept in the sealed cover(s) and the actual date of promotion of the person ranked immediately junior to him by the same DPC, he would also be allowed his due seniority and benefit of notional promotion as engvisaged in para 3 above.

4. I am also fortified in my view from the judgments of the Supreme Court in the following cases:- Bank of India and Another Vs. Degal Suryanarayana (Civil Appeal Nos. 3053-54 of 1997 decided on 12.7.1999) and State of Andhra Pradesh Vs. N. Radhakishan (Civil Appeal No. 3503 of 1997 decided on 7.4.1998). Accordingly, the writ petition is allowed. Respondents are directed to open the sealed cover which was resorted to pursuant to the DPC convened in June 1990 in which the case of the petitioner was considered for promotion to the post of Executive Engineer and give effect to the same. The sealed cover may be opened and if it is found that the petitioner is recommended for promotion he should be promoted with all consequential benefits. This exercise be completed within one month from today. Accordingly, the writ petition is disposed of.