Delhi Development Authority vs Y.L. Banka And Ors.
2006 Latest Caselaw 1722 Del

JUDGMENT

S. Muralidhar, J.

Page 2638

1. This letters patent appeal is directed against the order dated 9.2.1996 passed by a learned Single Judge allowing Civil Writ Petition No. 1190 of 1985. As far as Respondent No. 1 Shri Y.L. Banka is concerned, the appellant made a statement before the Division Bench of this Court in the present appeal on 4.5.2000 that no relief is being claimed against him. Therefore, the present appeal is confined to the relief granted to Respondent No. 2 Shri M.L. Tikoo by the impugned judgment of the learned Single Judge. It may also be mentioned that although initially the cause title of the present appeal showed the Lt. Governor of Delhi to be the appellant, later on an application by the Delhi Development Authority (DDA), this Court by an order dated 2.2.2000 permitted the DDA to be transposed as the appellant. We heard Ms. Anusuya Salwan, learned Counsel for the appellant. None appeared for Respondent No. 2. Nevertheless, we have considered the affidavits filed on his behalf.

2. The facts leading to the filing of the present appeal are that the respondent No. 2 joined the appellant as Assistant Engineer on 1.3.1969 and was subsequently promoted as an Executive Engineer (EE) on 1.3.1977. For consideration for promotion to the post of Superintending Engineer (SE), a meeting of the Departmental Promotion Committee ('DPC') was held on 29.6.1984. At that point of time there was one clear vacant post of SE and another became available on account of repatriation of one of the SEs. At this meeting, the eligible EEs, including the respondent No. 2 herein, were considered and respondent No. 2 was placed at serial No. 6 in the panel, subject to clearance by the vigilance. Against the two posts of SEs that were available, two officers namely Shri Amit Biswas (at Sl. No. 2 in the panel) and Shri M. Kuppuswamy (at Sl. No. 4 in the panel) were promoted on 30.8.1984. With this, the regular vacancies available in the post of SE were filled up. Two other officers namely Shri S.K. Garella and Shri H.C. Gupta who were at serial Nos. 3 and 5 in the panel respectively were promoted on current duty charge basis by an order dated 27.3.1985. The officer at serial No. 1 (who was respondent No. 1 herein) was not promoted since vigilance proceedings were pending against him. The admitted position is that this panel was valid only for one year.

3. On 14.10.1985, respondent No. 2 was issued a charge sheet. The DPC which met again on 21.11.1985 considered the name of Respondent No. 2. However, because of the pending disciplinary proceedings in respect of which a charge sheet had already been issued to Respondent No. 2, the recommendation was kept in a sealed cover. This position continued Page 2639 during the meetings of the DPC on 11.3.1987 and 14.4.1987. The disciplinary proceedings consequent upon the charge sheet ended on 29.3.1988 with the respondent No. 2 being awarded a penalty of censure. At its next meeting on 7.2.1989, the DPC did not recommend the promotion of respondent No. 2. Ultimately at the meeting of the DPC on 28.11.1990, the case of respondent No. 2 was recommended for promotion and he was promoted as SE on 27.12.1990.

4. On 17.5.1985, soon after promotion of Shri H.C. Gupta as SE on current duty charge basis, Respondent Nos. 1 and 2 herein jointly filed Writ Petition (C) No. 1190 of 1985 in this Court stating that they had both been empanelled in the merit list by the DPC which met on 29.6.1984. Despite this respondent Nos. 4 to 7 had been given promotions overlooking the claims of Respondent Nos.1 and 2 herein. Accordingly, the writ petition sought quashing of the order dated 13.8.1984 and 27.3.1985 whereby Respondent Nos.4 to 7 were promoted to the post of SE. The writ petition also sought a writ of mandamus to the respondents directing the implementation of the panel for promotion to the post of SE in respect of Respondent Nos. 1 and 2 herein.

5. Before the learned Single Judge reliance was placed on the judgment of Hon'ble Supreme Court in Union of India v. K.V. Jankiraman to contend that respondent No. 2 could not have been denied the promotion which had been granted to Shri H.C.Gupta on account of certain pending departmental proceedings when in fact, such proceedings were commenced only on 14.10.1985 long after the DPC had met. The learned Single Judge accepted this submission and held that the Respondent No. 2 ought to have been considered for promotion to the post of SE at the DPC held on 29.6.1984 on which date no charge sheet had been issued. The learned Single Judge partly allowed the writ petition of Respondent No. 2 by holding that he would be entitled to a notional promotion with effect from 30.8.1984 but would not be entitled to any salary in the said higher post.

6. Ms. Anusuya Salwan, learned Counsel for appellant submits when the DPC met on 29.6.1984 to consider the case of Respondent No. 2 for promotion, there was no question of adopting the sealed cover procedure since the charge sheet had not been issued by then. Therefore, the learned Single Judge was in error in applying the decision of the Hon'ble Supreme Court in K.V. Janakiraman. The learned Single Judge failed to appreciate that the non-promotion of Respondent No. 2 as on that date was on account of the non-availability of any regular vacancy in that post beyond the two that had been duly filled up those above the Respondent No. 2 in the panel. The promotion of Shri H.C. Gupta, who was in any event above respondent No. 2 in the panel, was only on a current charge duty basis and not a regular promotion. Secondly, the panel itself was valid only for one year. In those circumstances, the respondent No. 2 had no right to even by considered to the post of SE.

Page 2640

7. In the first place it requires to be noticed that in K.V. Jankiraman, the Hon'ble Supreme Court was dealing with issue of adopting a sealed cover procedure where disciplinary/criminal proceedings are pending against employee whose name has been considered for promotion. It was in that context held in paras 16 and 17 as under:

On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced the sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued.

The promotion cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the stage when charge-memo/charge-sheet has already been issued to the employee.

Relying on the above passages, the learned Single Judge, in the impugned judgment, noted that the departmental proceedings against Respondent No. 2 commenced only on 14.10.1985 whereas the DPC had already met on 29.6.1984. In those circumstances, it was held that the question of the DPC adopting a sealed cover procedure simply did not arise.

8. In our view, the learned Single Judge appears to have erred in proceeding on the premise that on the date of meeting of the DPC, i.e. on 29.6.1984, Respondent No. 2 was not considered for promotion on account of the sealed cover procedure. The facts, however, reveal that as on 30.8.1994 there were only two regular vacancies in the post of SE against which the two persons above Respondent No. 2 were promoted. There was no further regular vacancy in the post of SE as on that date against which respondent No. 2 could have been appointed as SE. Further, the person immediately above the Respondent No. 2 in the panel, i.e. Shri H.C. Gupta, was given promotion only on current duty charge basis and not on a regular vacancy and that too from 27.3.1985. Therefore, the failure to promote respondent No. 2 to the post of SE on 29.6.1984 was plainly because there were no regular vacancies and not because certain departmental proceedings were pending or contemplated against Respondent No. 2. Therefore, the denial of promotion to the Respondent No. 2 as on 29.6.1984 was not on account of the sealed cover procedure. In those circumstances, the question of applying the judgment in K.V. Jankiraman to the facts of the present case does not arise. The consequent direction that the respondent No. 2 must be given his promotion (although without any arrears of salary) with effect from 30.8.1984 cannot also, therefore, be sustained.

9. Moreover, in K.V. Janakiraman it was observed (SCC para 29, p. 123) as under:

An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests.

Page 2641

We also notice that the Respondent No. 2 has also proceeded on a basic misconception which is evident in the affidavit dated 10.2.1998 filed in the LPA where he states in para 4 that although at the DPC meeting held on 29.6.1984, the respondent No. 2 was empanelled at serial No. 6, "however the decision of the said DPC was kept in the sealed cover due to the pending enquiry against him." The facts set out hereinabove clearly show that this was not the reason why respondent No. 2 was not promoted to the post of SE as on 29.6.1984. On the other hand, it has been categorically stated in the memo of appeal by the appellant that there were no available regular vacancies in the post of SE as on that date against which Respondent No. 2 could have been promoted.

10. For all of the above reasons, the impugned judgment dated 9.2.1996 passed by the learned Single Judge is set aside and Writ Petition (C) No. 1190 of 1985 in so far as it concerns Respondent No. 2 is dismissed. The appeal is accordingly allowed with no order as to costs.