Narinder Kumar Munjal vs Dda And Ors.
2006 Latest Caselaw 1551 Del

JUDGMENT

Mukul Mudgal, J.

LPA Nos. 361/99, 362/99, 363/99 & 364/99

1. These appeals are directed against the impugned judgment dated 18.5.1999 passed by the learned Single Judge in Writ Petition Nos. 1037/89, 1090/89, 1091/89 & 1092/89. By the impugned judgment the learned Single Judge dismissed the writ petitions filed by the appellants herein and upheld the validity of an order being EO No. 1414, dated 7.4.1989 issued by the Respondent DDA promoting certain Junior Engineers as Assistant Engineers on a regular pay scale.

2. The brief facts leading to the present appeals are that the appellants were employed as Junior Engineers with the respondent DDA. There were 25 posts of Assistant Engineers (AE) (Electrical) lying vacant in 1983 which were required to be fulfillled by way of promotion from among the Junior Engineers (Electrical) from the category of Degree Holders and Diploma Holders for which minimum eligibility was three years and eight years, respectively. It appears that a meeting of the Departmental Promotion Committee was held in 1983 which considered the promotion of the appellants for the posts of AE (Electrical). However, admittedly, the appellants at that point of time were short of six to nine months for being eligible to be promoted. Accordingly, by the order EO No. 3497, dated 22.8.83, the appellants were permitted to officiate as AE (Electrical) on "current duty charge basis." Thereafter the Departmental Promotion Committee held two meetings on 29.3.89 and 31.3.89. By this time all the appellants had the requisite number of years of minimum service required for being considered for promotion as AE (Electrical). However, by an order E.O. No. 1414, dated 7.4.89, the respondent No. 1 promoted certain other persons as AE (Electrical) but left out the appellants altogether from the said list. The appellants thereafter filed writ petitions challenging the said impugned order dated 7.4.89. During the pendency of these writ petitions, the appellant were promoted as AE in December, 1990. Therefore, the surviving grievance of the appellants was that had they been promoted on 7.4.89 itself, they would have counted their seniority, and would be entitled to other consequential benefits from that date.

4. This appeal was heard at some length on 20.7.2006 and the following order was passed:

The central question that arises in this appeal is whether the respondent DDA was required to hold yearwise DPCs of promotion to the post of 'Assistant Engineer'. The appellant contends that although at the DPC held in 1983, he substantially satisfied the criteria for promotion as Assistant Engineer, he and certain others were promoted as Assistant Engineer (Electrical) on current duty charge basis by the Order dated 22nd August 1983, since in their cases the requisite minimum number of years of service was short by a few months. It is further contended that thereafter no DPC was again held till 1989 and in that DPC, the petitioner was not selected as is evident from the list dated 7th April 1989. The learned Counsel for the appellant contends that as per the Office Memorandum No. 22011/3/78-Estt.(D), dated 24th December 1980, the respondent was required to hold DPCs every year and if for reasons beyond its control such DPC could not be held in any year, then, as per the above Office Memorandum dated 24th December 1980, the following procedure had to be followed:

(i) Determine the actual number of regular vacancies that arose in each of the previous year/years immediately preceding and the actual number of regular vacancies proposed to be filled in the current year separately.

(ii) Consider in respect of each of the year those officers only who would be within the field of choice with reference to the vacancies of each starting with the earliest year onwards.

(iii) Prepare a consolidated 'select list' by placing the select list of the earlier year above the one for the next and so on.

The contention of the learned Counsel for the appellant is that at the DPC held in 1989, a separate yearwise consideration did not take place and this has resulted in grave prejudice to the appellant. Had the yearwise DPC been conducted and not bunched together as has been done in the present case, the appellant would have got his promotion and from an earlier date.

In this context, the learned Counsel for the appellant placed reliance on the judgment of the Supreme Court in Vinod Kumar Sangal v. Union of India and Ors. where at para 8 it was held as follows:

...it is not the case of the respondents that the DPC made separate selection for the vacancies for the years 1980, 1982 and 1983 and the DPC appears to have bunched together all the vacancies for the years 1980 to 1985 and has made one selection for the 6 promotional vacancies and this has resulted in enlargement of the field of choice for the purpose of selection. The grievance of the appellant is that this mode of selection in disregard of the instructions contained in the office memorandum dated 24.12.1980 operated to his prejudice appears to be justified because if separate selection had been made for the vacancies which occurred in the years 1980, 1982 and 1983 the field of choice would have been much more restricted and the appellant would have had better chances of being selected.

The counter affidavit filed by the respondent DDA before the learned Single Judge does not throw any light on whether, when the list for selected candidates was prepared as evidenced by the Order dated 7th April 1989, the procedure envisaged by the Office Memorandum dated 24th December 1980 was in fact followed.

The learned Counsel for respondent DDA candidly states that affidavit filed in the present matter is sketchy and does not give the correct details of what exactly transpired at the DPC held in 1989. Accordingly, we direct that the respondent DDA shall file an affidavit giving the complete details of DPC which was held in 1989 so that the Court may be able to appreciate if there were yearwise DPCs held in terms of para 3 (ii) of the Office Memorandum dated 20th December 1980. This affidavit be filed within four weeks. Rejoinder, if any, be filed within one week thereafter.

List on 7th September, 2006.

5. Pursuant to the said order, an affidavit dated 10.8.2006 has been filed by the respondents. The relevant portion of the said affidavit reads as follows:

1. That I am working as Director (Personnel)-II with Delhi Development Authority (DDA). I am competent to swear this affidavit. I am filing this reply on the basis of records available with the department.

2. That the Departmental Promotion Committee (DPC) in case of the Appellant, Shri Narender Kumar Munjal was held on 29.3.1989 and 31.3.1989 in bunch in respect of Assistant Engineers (Electrical/Mechanical) A/E (E/M) who were earlier promoted on current duty charge in 1983. The case of three Junior Engineers (JE) who were senior to the aforesaid JE's promoted on current duty charge and were not given current duty charge, was also considered by the said DPC.

6. The said affidavit discloses that while preparing the list of selected candidates, as contained in the order dated 7.4.1989, the procedure as envisaged by the Office Memorandum dated 24.12.1980 was not followed. In this view of the matter, said order dated 7.4.1989 cannot be sustained and is liable to be quashed. Accordingly, the impugned judgment dated 18.5.1999 of the learned Single Judge is set aside. The order contained in E.O. No. 1414 dated 7.4.1989 issued by Respondent No. 1 is quashed. The respondent DDA is now directed to follow the procedure as envisaged by the Office Memorandum dated 24.12.1980 and re-work the select list not later than eight weeks from today, i.e., not later than 2.11.2006. Such of those appellants who would get their promotion as AE (Electrical) with effect from 7.4.1989 as a result of the re-worked select list, will also be given the consequential benefits to which they are entitled, within six weeks thereafter i.e., not later than 14.12.2006.

7. With these directions, the appeals are allowed.