Shri Jaivir Singh Dheeman, S/O Sh. ... vs Airports Authority Of India ...
2002 Latest Caselaw 1350 Del

JUDGMENT

Vijender Jain, J.

1. Rule .

2. Petitioner has challenged the memorandum passed by the respondent on January 29, 1999. It is the case of the petitioner that the petitioner was not promoted to the post of Superintending Engineer re-designated as DGM-Engg. (Civil). It is the case of the petitioner that on 5.10.1995 the Departmental Promotion Committee for promotion of Executive Engineers to the post of Superintending Engineer was held and the name of the petitioner was also considered. However, a charge-sheet dated 27.12.1995 was issued by the respondent which was prepared by the Executive Director (Vigilance) of the respondent, the same was received by the petitioner in the first week of January, 1996.

3. Mr. Vinod Kumar, learned counsel for the petitioner has contended that the petitioner had moved this Court by filing a writ petition (CWP No. 3440/96) and the petitioner was informed by the respondent that the case of promotion of petitioner was kept in a sealed cover till the pendency of disciplinary proceedings against him. The Court disposed of the said petition by an order to the following effect :

"The learned counsel for the respondent Mr. Chandhiok states that the sealed cover would be opened and the respondent will pass appropriate orders.

The respondent shall open the sealed cover and pass appropriate orders as on the date of the DPC reckoning the date in the DPC. The respondent shall be at liberty to take into account punishment Imposed subsequently. Such order shall be passed on or before 31.1.1999. Petitioner shall be at liberty to challenge the same."

4. The     outcome     of  the  said  order  was  the     impugned
order     passed     by  the  respondent  on  29.1.1999.     It     is     a

short  order  which  is  reproduced  below
   

"In     compliance     of  the  Hon'ble     Delhi
High    Court's     Order       dated       14.12.1998,
sealed     cover   of  the  DPC  proceedings  held
on       05.10.1995     in       respect     of     Sh. J.S.
Dheeman     for     promotion     to     the     post     of
Superintending     Engineer   has  been    opened.
It     is     seen     that  the  name  of     Shri     J.S.
Dheeman     is     appearing     in    the     list     for
promotion     to     the  post  of     Superintending
Engineer [re-designated                      as DGM-Engg.(Civil)]   However,   since  a  penalty
of       stoppage     of       two     increments       with
cumulative     effect     has  been   imposed     upon
Shri         J.S.              Dheeman         vide         Order
No. Pers/IR/1102/13/95-JSD/580-583          dated
27.04.1998,       he     is       not     eligible       for
promotion    during     the       currency     of     the
penalty     in    accordance  with  the    existing
rules  and  guidelines  of  the  Authority.  
 

2.       This     issues     with     approval     of     the Competent  Authority."  
 

5. Mr. Kumar     has    contended  that  the  impugned    order
was  wholly  illegal  and  contrary  to  the  law  as  on  the  date
of   holding  DPC  no  charge-sheet  was  served,   no  inquiry  was
pending    and     therefore,   the  impugned  order  suffers     from
patent  illegality.     In  support  of  his  contention,   learned
counsel    for     the  respondent  has  cited   Union of India and
Ors.       v. K.V.     Jankiraman  and Ors. ,   New Bank     of     India  v.     N.P.     Sehgal  and Anr.           and   Union  of   India  v. Dr. (Smt.) Sudha Salhan  1998 II AD  (SC)   306.    
 

6. On    the    other     hand,     learned    counsel     for     the
respondent     has  contended  that  although  on  5.10.1995     the

DPC was held but no promotion was given pursuant to the said DPC as a new DPC was held in the year 1996, he has further contended that an inquiry was contemplated against the petitioner even at the date of first DPC i.e. on 5.10.1995. He has contended that once an inquiry is contemplated in terms of the regulations, office memorandum dated 14.9.1992 issued by the Ministry of Personnel regarding adoption of sealed cover procedure which was made applicable on the petitioner, there was no infirmity in the impugned order. He has placed reliance on  Union of India  v. Kawal Kumar    as well as . 
 

7. I have given my careful consideration to the
arguments advanced by learned counsel for both the
parties. There is an obvious fallacy in the argument of
learned counsel for the respondent. From the bare
perusal of the impugned order, non-promotion pursuant to
the sealed cover to be opened on 5.10.1995 is not on
account of any contemplated inquiry prior to that date.
The order passed on January 29, 1999 makes it manifestly
clear that petitioner was not given promotion because
penalty of stoppage of two increments with cumulative
effect was imposed upon him from 27.4.1998, That date is
subsequent to the date when DPC was held on 5.10.1995.
Even otherwise no record have been produced by the
respondent to substantiate what has been stated in the

counter affidavit. That inquiry against the petitioner was contemplated prior to 5.10.1995. In order to bring action of the respondent within the parameters of Rule 2.2 as has been contended before me by the learned counsel for the respondent no material has been placed before this Court. Supreme Court in Union of India v. Dr. Sudha Salhan (supra) while considering the law in this subject as enunciated in Janakiraman's case held:

"The question, however, stands concluded by a Three Judge decision of this Court in Union of India and Ors. v. K.B. Jankiraman and Ors. in which the same view has been taken. We are in respectful agreement with the above decision. We are also of the opinion that if on the date on which the name of a person is considered by the Departmental Promotion Committee for promotion to the higher post, such person is neither under suspension nor has any departmental proceedings been initiated against him, his name, if he is found meritorious and suitable, has to be brought on the select list and the "sealed cover" procedure cannot be adopted. The recommendation of the Departmental Promotion Committee can be placed in a "sealed cover" only if on the date of consideration of the name for promotion, the departmental proceedings had been initiated or were pending or on its conclusion, final orders had not been passed by the appropriate authority. It is obvious that if the officer, against whom the departmental proceedings were initiated, is ultimately exonerated, the sealed cover containing the recommendation of the Departmental Promotion Committee would be opened, and the recommendation would be given effect to."

8. Following the ratio of Dr. Sudha Salhan's case (supra) I quash the impugned order dated 29.1.1999. The petitioner would be entitled for promotion from the date when DPC was held on 5.10.1995. Rule is made absolute.

9. Petition stands disposed of.