D.N.Tanty vs Uoi & Ors.
2009 Latest Caselaw 5206 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         Date of Decision: 15th December, 2009

+                         W.P.(C) 575/2009

        D.N. TANTY                         ..... Petitioner
                  Through:     Ms.Rekha Palli with
                               Ms.Poonam Singh, Advocates

                               versus

        UOI & ORS.                           ..... Respondents

Through: Ms.Jyoti Singh, Advocate with Mr.Ankur Chhiber, Advocates

CORAM:

HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE SURESH KAIT

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not? No

3. Whether the judgment should be reported in the Digest? No

PRADEEP NANDRAJOG, J.(Oral)

CM No.1276/2009

Allowed subject to just exceptions.

CM No. 1275/2009

1. Vide afore-noted application the delay in filing the writ

petition is prayed to be condoned.

2. Needless to state, issue of delay and laches has to be

considered while deciding on the relief prayed in the writ

petition.

3. The application stands disposed of clarifying that the

issue of delay and laches would be considered at the time of

hearing of the writ petition and for said purpose the facts

pleaded in the instant application would be considered.

W.P.(C) 575/2009

1. Three persons; namely, Sh.R.S.Sharma, Sh.I.A.Khan

and the petitioner Sh.D.N.Tanty sailed in the same boat but

have reached different destinations.

2. Whereas R.S.Sharma reached his destination without

any turbulence and earned promotion to the post of Deputy

Commandant, I.A.Khan had to piggy ride on a writ petition

filed and got relief from this Court. He earned promotion to

the post of Deputy Commandant. The petitioner who was

already working as a Deputy Commandant when all the

three commenced their journey sought his destination i.e.

promotion to the post of 2-IC (2nd in Command) when he

filed the writ petition.

3. In the year 2005, there being vacancies to the post of

Deputy Commandant and 2-IC under CRPF, the process to

fill up the vacancies was commenced by short listing the

eligible candidates and obtaining vigilance clearance for all

to ensure that none was facing a departmental inquiry or

was otherwise debarred to earn further promotion.

4. The Personnel Department of CRPF gave vigilance

clearance in favour of all three. Qua the petitioner,

vigilance clearance was granted on 29.1.2005.

5. The exact date on which the Departmental Promotion

Committee met to empanel the eligible candidates for

further promotion, is not on record since neither party has

disclosed the same, but counsel concede that the

Departmental Promotion Committee meetings were held

somewhere between the month of August 2005 and October

2005.

6. It is not in dispute that as on the date when

Departmental Promotion Committee meetings were held to

consider the eligible Assistant Commandants for promotion

to the post of Deputy Commandant as also when the DPC

meeting was held to consider the eligible Deputy

Commandant for promotion to the post of 2-IC, neither the

petitioner nor Sh.R.S.Sharma nor Sh.I.A.Khan were issued

any charge memo nor was any decision taken to initiate

departmental proceedings against the three.

7. But, a report had been received by the department

from the CBI on 9.12.2004 in respect of an inquiry

conducted by CBI pertaining to examination conducted for

the recruitment of constables (GD) in Bihar Centre. The

report was to the effect that there were cuttings, over-

writings and double markings in respect of the centre where

I.A.Khan was posted and pertaining to the centre where the

petitioner was posted the report was of marking by pencil.

Qua R.S.Sharma the report stated that in the Centre in

which he was posted it was found that markings by pencil

was resorted to. It may be noted that the petitioner and

R.S.Sharma were at the same centre.

8. It is apparent that the petitioner, Sh.I.A.Khan as well as

Sh.R.S.Sharma were at par when the DPCs were held

inasmuch as neither was issued any charge memo nor was

a decision taken qua anyone of them to initiate

departmental proceedings and all three were equally

indicted in the report submitted by CBI.

9. Notwithstanding as aforenoted, R.S.Sharma was

empanelled for promotion to the post of Deputy

Commandant and was promoted in the year 2005 itself.

But, the recommendation pertaining to the petitioner and

I.A.Khan were kept in a sealed cover on the ground that the

CBI had indicted the two and the department was

considering the report submitted by CBI for further action.

10. The three were later on issued a charge memo dated

6.1.2006 for a minor penalty and rejecting the response

submitted by the three, all three were awarded the penalty

of censure.

11. It is apparent that the penalty imposed upon all the

three related to a charge memo issued much after the dates

when the DPC meetings were held. The result was that the

penalty did not have any effect whatsoever on R.S.Sharma.

The petitioner and I.A.Khan suffered the effect of the

penalty for the reason the sealed cover in which

recommendations of the DPC Committee were kept qua

them were not opened.

12. I.A.Khan filed a writ petition registered as W.P.(C)

No.20/2007 alleging that neither a charge memo being

issued to him nor a decision taken in the file to initiate any

departmental inquiry against him when the DPC met to

consider the eligible Assistant Commandants for promotion

to the post of Deputy Commandants, the respondents could

not place recommendations qua him in the sealed cover.

He pleaded parity with Sh.R.S.Sharma.

13. The writ petition filed by I.A.Khan succeeded vide

judgment and order dated 1.2.2008 passed by a co-ordinate

Division Bench of this Court. With reference to the decisions

of the Supreme Court reported as (1991) 4 SCC 109 UOI Vs.

K.V.Jankiraman and (2007) 6 SCC 704 UOI & Ors. Vs.

Sangram Keshrai Nayak it was held that law was clear: if on

the date when the DPC met neither was a charge memo

issued nor was a decision taken on the file to initiate

departmental action against an eligible candidate, sealed

cover procedure could not be resorted to. The Division

Bench noted a decision of the Supreme Court reported as JT

2000 (4) SC 649 UOI Vs. R.S.Sharma wherein the Supreme

Court had held that notwithstanding the candidate being

neither issued a charge memo nor a decision taken to

initiate departmental action against him when the DPC met,

but before the recommendations of the DPC are

implemented, the candidate comes under a cloud for a

serious offence, in such circumstance the recommendations

of the DPC can be deferred till the inquiry is completed with

reference to the offence noted. Thus, the Division Bench

considered the seriousness of the charge against I.A.Khan

and held that the CBI report did not indict him of an offence

which could cast the shadow of dark clouds over him. Thus,

a mandamus was issued to give effect to the

recommendations of the DPC qua I.A.Khan. It may be noted

that the Division Bench noted that by the time I.A.Khan had

filed the writ petition, the charge memo had been issued

against him for a minor penalty. Notwithstanding said fact,

the mandamus was issued.

14. The respondents accepted the decision of the Division

Bench of this Court in favour of I.A.Khan and opened the

sealed cover in which recommendations of the DPC qua

I.A.Khan were kept and since he was empanelled for

promotion by the DPC, the same has been given effect to.

15. The petitioner continued to make representations that

even he be treated at par with R.S.Sharma and I.A.Khan.

But getting no response was constrained to file the instant

writ petition.

16. We note that during the pendency of the writ petition,

pursuant to recommendations of a DPC meeting held in the

year 2009, the petitioner has been promoted to the post of

2-IC, but claims entitlement to have the sealed cover

opened qua him. The reason is obvious. If empanelled by

the DPC, the petitioner would earn promotion from the date

the person immediately junior to him was promoted.

17. To the reader of this decision it would be obvious by

now that the petitioner claims the benefit of the same legal

reasoning which has been adopted by the Division Bench of

this Court in favour of I.A.Khan. The respondents opposed

the same by urging that since penalty of censure was

imposed upon the petitioner, he cannot be promoted on the

basis of the recommendations of the DPC held in the year

2005, if favourable to him.

18. We need not reiterate the legal principles and the

reason behind them, which have been culled out by a Co-

ordinate Division Bench of this Court in the decision dated

1.2.2008 allowing W.P.(C) No.20/2007 filed by I.A.Khan. We

need to note the same in brevity and apply the same in the

facts of the instant case to reach the logical conclusion.

19. But before that, the plea of delay and laches may be

dealt with.

20. In CM No.1275/2009 the petitioner has highlighted that

his grievance surfaced when R.S.Sharma was promoted

about which he learnt in the year 2007 and he made a

representation thereafter. The petitioner further explains

that soon thereafter the decision of the Division Bench came

in favour of I.A.Khan and he made further representations

and on getting no relief has approached the Court.

21. We are satisfied with the time spent by the petitioner

with the department for the reason to take a contra view

would mean that Courts would not encourage persons to

seek departmental redressal and would compel them to

rush to Court at the first moment of discord. Such a

pedantic view would overburden the already over stretched

judicial system.

22. Reverting to the merits, it is clear from the decision in

I.A.Khan's case, where the law laid down by the Supreme

Court in three decisions i.e. in K.V.Jankiraman's case,

R.S.Sharma's case and Sangram Kesrai's case was

considered that the legal position is that recommendations

of the DPC cannot be kept in a sealed cover if on the day

the DPC met, the candidate was not issued a charge sheet

nor was a decision taken to initiate a departmental action

subject to one exception; being that, if subsequently the

candidate concerned came under a cloud of a serious

offence before the promotion order could be issued, in said

exceptional circumstance, the recommendations of the DPC

could be kept in a sealed cover.

23. The Division Bench deciding I.A.Khan's case (supra)

has noted that the allegations against I.A.Khan did not

pertain to a serious offence and hence directed that the

recommendations of the DPC qua I.A.Khan be implemented.

24. We have noted hereinabove that the charge/offence

against the petitioner is similar as that of I.A.Khan, and

same as that of R.S.Sharma.

25. Thus, on the ratio of law laid down in I.A.Khan's case

(supra)we hold that the writ petitioner is entitled to the

same relief.

26. The writ petition is disposed of with a direction to the

respondents to open the sealed cover in which the

recommendations of the DPC qua the petitioner have been

sealed and if the petitioner has been found suitable for

promotion to the post of 2-IC, the findings be given effect to

with effect from the date the person immediately junior to

the petitioner was promoted. The petitioner would be

entitled to all consequential benefits of seniority and

continuity/length of service except that for purposes of pay

in the grade of 2-IC, the Competent Authority would take a

decision as per the fundamental rule applicable. We clarify

that if the Competent Authority holds that he has not

worked as 2-IC and hence should not be paid the salary for

said post, for purposes of fixation of pay notional pay

fixation and increment benefit would be granted.

27. Since the issue at hand was not free from doubt, we

refrain from imposing any cost.

PRADEEP NANDRAJOG, J.

SURESH KAIT, J.

DECEMBER 15, 2009 mm