Delhi High Court
Vp Singh vs Mtnl And Ors. on 2 June, 2011
Author: Dipak Misra,Chief Justice
27.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3976/2011
Date of order: 2nd June, 2011
VP SINGH ..... Petitioner
Through Mr. Bani Singh, Advocate.
versus
MTNL AND ORS. ..... Respondents
Through Ms. Nidhi Minocha, Advocate
for Ms. Ruchi G. Narula, Advocate for
MTNL.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported in the Digest ?
DIPAK MISRA, CJ.:
Heard Mr. Bani Singh, learned counsel for the petitioner
and Ms. Nidhi Minocha, learned counsel for the respondent.
2. The petitioner was working on the post of Divisional
Engineer on the basis of local officiating promotion under the
respondent- Mahanagar Telephone Nigam Limited (MTNL) since
30th June, 2006. He was reverted to his substantive post, i.e.,
Sub-Divisional Engineer (SDE) by order dated 2nd July, 2010
with effect from 8th December, 2009. It was contended before
W.P. (C) No. 3976/2011 Page 1 of 5
the tribunal that he could not have been reverted without a
proper departmental enquiry and culmination of the same in a
punishment. On behalf of the respondent, FR 9(19) was
pressed into service. That apart, it was contended that the term
of the officiation on the promotional post expired on 7th
December, 2009 and, therefore, the petitioner had no vested
right to continue. Additionally, it was urged that the disciplinary
proceeding had already been initiated against him but no charge
sheet had been framed.
3. It is submitted by the learned counsel for the petitioner that
there was no justification to revert him when others were
continued. That apart, two grounds that were urged before the
tribunal have also been reiterated before us. Learned counsel
for the respondent supported the order passed by the tribunal.
In this context, we may usefully refer to FR 9(19), which reads
as follows:
"9.(19) Officiate - A Government servant
officiates in a post when he performs the
duties of a post on which another person
holds a lien. The Central Government may,
if it thinks fit, appoint a Government servant
to officiate in a vacant post on which no
other Government servant holds a lien."
4. It is settled position in law that when someone officiates on
W.P. (C) No. 3976/2011 Page 2 of 5
a promotional post, he really does not have a right to the
promotional post. The officiation is granted on the basis of an
arrangement. No right accrues in favour of an incumbent.
5. We will be failing in our duty if we do not refer to the Office
Memorandum No. 11012/9/86-Estt.(A) dated 24th December,
1986 issued by the Department of Personnel and Training
(DOP&T). The said Office Memorandum reads as follows:
"(4) Procedure to be followed when
disciplinary proceeding is initiated against a
Government servant officiating in a higher
post on a d hoc basis:- The question
whether a Government servant appointed to
a higher post on ad hoc basis should be
allowed to continue in the ad hoc
appointment when a disciplinary proceeding
is initiated against him has been considered
by this Department and it has been decided
that the procedure outlined below shall be
followed in such cases-
(i) Where an appointment has been made
purely on ad hoc basis against a short-
term vacancy or a leave vacancy or if the
Government servant appointed to officiate
until further orders in any other
circumstances has held the appointment
for a period less than one year; the
Government servant shall be reverted to
the post held by him substantively or on a
regular basis, when a disciplinary
proceeding is initiated against him.
(ii) Where the appointment was required to
be made on ad hoc basis purely for
administrative reasons (other than against
W.P. (C) No. 3976/2011 Page 3 of 5
a short-term vacancy or a leave vacancy)
and the Government servant has held the
appointment for more than one year, if
any disciplinary proceedings is initiated
against the Government servant, he need
not be reverted to the post held by him
only on the ground that disciplinary
proceeding has been initiated against
him."
6. Relying on the aforesaid Office Memorandum, it is
contended that even if a departmental proceeding is
contemplated, an incumbent holding the promotional post on the
officiating basis cannot be reverted. We do not find the same is
inhered in the said Office Memorandum. Paragraph 4(ii) on
which immense emphasis has been placed is only a guideline
and it does not bar the authority to quash an order of reversion.
That apart, it is a qualifying one. It lays a postulate that a
person, who is holding an officiating post, need not be reverted
only on the ground that a disciplinary proceeding has been
initiated against him. The Office Memorandum makes two
categories of distinction. On a perusal of the order of reversion,
it transpires that it has been done after expiry of the period. In
the absence of a vested right, in our considered opinion, the
order of reversion really cannot be found fault with.
7. Be it noted, such a reversion does not tantamount for
W.P. (C) No. 3976/2011 Page 4 of 5
punishment and hence no enquiry in that regard is imperative.
At this juncture, we have been apprised that the petitioner's
juniors are still working on officiating basis. As the same was
not pleaded in the petition, liberty is granted to the petitioner to
apprise the department in this regard, which shall pass a
reasoned order.
8. With the aforesaid modification in the order of the tribunal,
the writ petition stands disposed of without any order as to costs.
CHIEF JUSTICE
SANJIV KHANNA, J.
JUNE 02, 2011
VKR
