Manohar Singh vs Ntpc
2012 Latest Caselaw 2295 Del

         IN THE HIGH COURT OF DELHI AT NEW DELHI

                   WRIT PETITION(C) NO.7675/2007 &
                   CM Nos.14636/2007, 10984/2010



MANOHAR SINGH                                           ..... Petitioner

                                   versus

NTPC                                                  .... Respondent

                                       Date of Decision: April 10, 2012


Advocates who appeared in this case:
For the Petitioner      :     Petitioner in person.
For the Respondent      :     Mr. V.K.Rao, Sr. Advocate with
                              Mr. Agastya Kumar &
                              Mr. Vaibhav Kalra, Advocates

CORAM:
    HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA


SUDERSHAN KUMAR MISRA, J.

1. The petitioner appears in person. He retired from the

respondent organization on 31st August, 2003. He has filed this

petition seeking a direction to the respondent to promote him to the

next higher post of Manager (Safety) at the E-5 level, with effect

from 1st January, 2002 and to pay him all consequential benefits,

including retiral benefits.

2. The case of the petitioner is that he joined the National

Thermal Power Corporation (NTPC) on 28th January, 1982 as

Supervisor Grade- II. In 1986, on the request of the General

Manager (Korba), the petitioner agreed to work in the Safety

Department, where he received various honours and appreciations

from the respondent for his performance. He was promoted as

Deputy Manager (Safety) at the E-4 level in 1999, and was

transferred from NTPC (Kawas) to BTPS/NTPC (Badarpur) in the

same year.

3. By a memorandum, dated 23rd November, 2001, the

General Manager Shri P.P. Singh, acting as the Disciplinary

Authority, informed the petitioner that an inquiry has been initiated

against him for misconduct under Rule 25 of the NTPC Conduct

Discipline & Appeal Rules, and that a charge sheet has been framed

on the allegation that he had furnished false documents for claiming

HRA from the respondent. By letter, dated 5th January, 2002, the

petitioner informed the Disciplinary Authority that as per the

„Modified Schedule of Delegation of Powers for Disciplinary Matters‟,

he is not empowered to issue a charge sheet under Rule 25 (Major

Penalty) of the NTPC Conduct Discipline & Appeal Rules and

therefore, the petitioner was not bound to file any reply to the

charge sheet. In his response of 12th January, 2002, the

Disciplinary Authority rejected this plea of the petitioner and

granted him 3 more days to file the reply. On 4th February, 2002,

the respondent also appointed an enquiry officer. The petitioner

took part in the inquiry proceedings under protest. He also

requested the respondent to expedite the proceedings in view of his

approaching retirement.

4. On 4th March, 2003, while the inquiry was in progress,

the petitioner made a representation on Form- I, i.e., Stage-I

Grievance, to the respondent for his promotion from E-4 to the next

higher grade i.e. E-5. To this, the respondent replied vide a memo,

dated 20th March, 2003, informing the petitioner that he was

considered by the Regional Promotion Committee (RPC) but was not

recommended by them. Being aggrieved from the reply of the

respondent to Form-I, the petitioner resorted to Form- II i.e.,

Stage-II Grievance, on 29th March, 2003. This was rejected by the

respondent on 30th May, 2003, and it was clarified that in fact, since

the disciplinary proceedings were pending against the petitioner,

the recommendations of the aforesaid Regional Promotion

Committee have been kept in a sealed cover and will be governed

by the relevant rules.

5. On 26th August, 2003, on the eve of the petitioner‟s

retirement, which was coming up on 31st August, 2003, the Deputy

Manager (HR-ER & W), initiated the following note proposing that

the case against the petitioner be closed;

            "Sh.   Manohar       Singh,     Emp.     No.    21308,       Dy.
            Manager      (Safety),       Safety    Deptt.   is    due    for
            superannuation         from      the    services       of    the

Corporation on 30.8.2003 (AN). In this context, it is submitted that there is a disciplinary case pending against Sh. Manohar Singh as per following details:

              S.     Charge-sheet No.      Misconduct             Status
             No.
              1.    BTPS/04/21308:      Furnishing false     Enquiry is
                    2001/2002   dt.     documents     for   continuing.
                    23.11.2001          claiming of HRA
                                        from         the
                                        company

It may be pertinent to mention that on attaining the age of superannuation and thus retiring from service, the employee-employer relationship comes to an end and the employee does not remain within the disciplinary control of the Employer. Thus, all rules relating to the conditions of service become inapplicable and it is not possible to impose any penalty on him even with retrospective effect (High Court of Punjab & Haryana Vs. Amrik Singh, (1995 SUPP. 1 SCC

321). Further, there is no clause in the NTPC Superannuation Benefit Scheme for conducting disciplinary proceedings after retirement. There is no rule for extended service just for continuance of departmental proceedings against the employee.

In this context, it may be mentioned that in a similar case comparable of Sh. M.P.Tiwari, Emp. No. 52691, Foreman, Gd. II, R&M Deptt., who superannuated from service on 30th June, 2003, the Competent Authority decided not to pursue the disciplinary matter. In view of the superannuation of Sh. Singh, we may close the case against him and release terminal benefits as per rules. A draft communication to be issued to Sh. Singh is also enclosed for kind perusal & approval.

Submitted please."

This was accepted; and ultimately, by a letter, dated 29 th

September, 2003, the respondent informed the petitioner that since

he has now retired, the disciplinary proceedings against him have

been decided to be closed by the respondent.

6. It was in these circumstances that the petitioner

requested the respondent to consider the status of his promotion,

but that was of no avail. Therefore, the petitioner moved this court

in writ petition, WP (C) No. 2077/2007, alleging, inter alia, that he

has not been informed about the recommendations made by the

Promotion Committee for 2003 which were kept in a sealed cover by

the respondent. On 19th March, 2007, this Court disposed off that

petition with a direction to the respondent to open that sealed

cover, and inform the petitioner about its contents. It also granted

the petitioner liberty to move this Court again in case he felt

aggrieved by the recommendations of the Promotion Committee for

2003. As a result, the respondent opened the sealed cover and

informed the petitioner on 5th April, 2007 that he was not found

suitable for promotion. This has prompted the petitioner to move

the instant petition.

7. The petitioner who appears in person, has, inter alia,

contended that there was no need for the respondent to resort to

the sealed cover procedure because he was never placed under

suspension at any time. He also contends that his case deserved

due consideration under the promotion policy, and that such

consideration was denied to him due to malicious reasons. In other

words, he was not considered at all for promotion. These

contentions are palpably misplaced. He has already moved this

Court earlier in Writ Petition (C) No. 2077/2007, inter alia, with

regard to the non-communication of the recommendations of the

Promotion Committee to him. Those proceedings were concluded

with a direction by this Court to the respondent to disclose the

contents of the sealed cover to the petitioner. This has been done.

He cannot re-agitate these aspects of the matter again keeping in

view the principles of res judicata and constructive res judicata.

Further, since he had, in fact, been duly considered by the

Promotion Committee concerned, which had then placed its

recommendations in a sealed cover, it cannot be said that he was

not considered at all in terms of the promotion policy. These

contentions are therefore rejected.

8. In this context, the petitioner also contends that the

respondent has not followed paragraph 7.3.2 of the Promotion

Policy (Executive) which contemplates ad hoc promotion in cases of

delay in concluding disciplinary proceedings. Paragraph 7.3.2 reads

as under :

7.3.2. "In the event of delay in the conclusion of the disciplinary proceedings/ criminal prosecution on serious allegations of corruption, bribery or similar grave misconduct including moral

turpitude, fraud, etc. the delay not being attributable to the charged employee, and the disciplinary proceedings/criminal prosecution, against the employee concerned are not concluded even after the expiry of two annual CPCs from the date of the meeting of the first CPC which kept its finding in respect of the employee in the sealed cover, the Appointing Authority may review the case of the employee, provided he is not under suspension, and consider and order promotion of employee on ad hoc basis, provided his case was recommended by CPC keeping in view the totality of the case, the availability of vacancy etc. The order of promotion should make it clear that the promotion is purely on ad hoc basis, till further orders and confers no right on the employee for regular promotion and that the Competent Authority reserves the right to cancel/revoke the ad hoc promotion or to revert, at any time the employee to the post from which he was promoted on ad hoc basis without any formal proceedings."

In addition, through an application moved under the Right to

Information Act, the petitioner also claims to have discovered that

in another, unrelated case, the respondent had indeed promoted

some other employee on an ad hoc basis during the pendency of a

departmental inquiry against that employee.

9. Admittedly, the petitioner was duly considered for

promotion to the E5 level for the first time in the year 2002 and the

result was kept in a sealed cover. He was again considered in the

year 2003 and the result was once again kept in a sealed cover. He

retired before he could be considered yet again. For the petitioner

to become eligible for consideration for ad hoc appointment under

paragraph 7.3.2, which is reproduced above, it was necessary that

after the decision of the first Promotion Committee to place its

finding in a sealed cover in the year 2002, two further annual

Promotion Committees should have also been held before the

enquiry was concluded. In other words, the condition precedent

upon which the consideration of ad hoc promotion, as postulated

under the aforesaid paragraph 7.3.2, to the effect that the ongoing

disciplinary proceedings should not have been concluded even after

the expiry of two annual Promotion Committees, "from", the date of

the meeting of the first Promotion Committee, which kept its finding

in a sealed cover, is not satisfied. Consequently, the question of

considering the petitioner for ad hoc promotion in terms of clause

7.3.2 did not arise, and the petitioner‟s reliance on that provision

for this purpose is misplaced. Even if it is assumed that any orders

have been issued by the respondent contrary to its own regulations

in any other, unrelated, matter that would not vest any right on the

petitioner for similar treatment.

10. The main argument of the petitioner that merits

examination by this court is that he has, in fact, not been properly

considered by the Promotion Committee; he contends that the

assessment sheets of the Promotion Committees of 2002 and 2003

show an incorrect assignment of marks to his performance ratings

as reflected in the relevant ACR in violation of the respondent‟s own

Promotion Policy. According to him, the Promotion Committees

have, in effect, reduced or downgraded the performance appraisal

ratings actually awarded to him in his ACRs for the years under

consideration. He further contends that one of the members of

both the Promotion Committees, namely, Mr. P.P. Singh, General

Manager, not only influenced the Committees to downgrade or

lower his ACR ratings because he was biased against him; he was

also ineligible to sit on the committees; And therefore, the decisions

of those committees deserve to be set aside.

11. Paragraph 4.5 of the respondent‟s promotion policy

dealing with the basis for assessment of merit and suitability‟ of

candidate is as follows:-

"The Appraisal System will be on a 5 point scale, i.e. "Outstanding", "Good", "Average", "Below Average" and "Unsatisfactory", as defined in the Appraisal formats. The Final overall evaluation by the "Moderation Committee" will be taken into consideration for the purpose of aggregation, and marks will be allotted to various ratings for promotion at all levels as follows:

      Rating                   For                 For promotion
                               promotion          from E4 to E5 &
                               up to E4                above
                               level

Para 5.1 dealing with the „Eligibility Period‟ is as follows:

"5.1 - The eligibility period for consideration of executives in the grade as mentioned below for promotion to the next higher grade shall be as under:-

         Executives in the                           Eligibility period
             grade of
                       E2                                    1 year
          E1,E2A, E3 and E4                                  3 years
                E5 and E6                                    4 years

In this context, para 6.4 which prescribes the number of years that

have to be considered by the Promotion Committee is also relevant.

It states as follows:-

"6.4 -The CPC shall take into consideration the Performance Appraisal Reports including Special Performance Report, if any, for the last One/Three/Four years, as the case may be, depending upon the eligibility period prescribed at Para 5.1 above."

Para 7 of the Promotion Policy lays down the Criteria and Conditions

for Promotion and Disqualification from Promotion. Para 7.1(c)

which is relevant here, is as follows:-

"7.1(c) - Promotion of executives from the grade of E4 to E5 Factors Maximum Marks

Ratings (for last three years)

The marks for Performance Appraisal Ratings will be as given in Para 4.5.

The marks for Grade Service will be as under:

Grade Service Marks

The „Qualifying Marks‟ for promotability will be 45 (Forty Five)".

12. An examination of paragraph 4.5 of the promotion

policy, extracted above, shows that for promotion to the next level,

the marks that are to be allotted by the Promotion Committee for

previous performance recorded in the candidate‟s ACR will depend,

not only upon the rating awarded to that candidate in the ACR of

each relevant year, but also on the level for which he is being

considered. For convenience, paragraph 4.5 of the policy sets

down the marks to be accorded in two tables next to a column

denoting the various ratings or grades. The first table at the left

under the heading, "For promotion up to E4 level", denotes the

marks to be allotted by the Promotion Committee for promotions up

to the E4 level, and the second one on the right under the heading,

"For promotion from E4 to E5 and above," denotes the marks to be

allotted for promotions from the E4 to E5 level and above.

Excepting for the marks to be allotted for an unsatisfactory rating,

which is zero in both cases, for all other ratings from, "outstanding",

"good", "average" to "below average"; 8, 6, 4 and 2 marks are to

be allotted for all promotions up to the E4 level; and 10, 8, 6 and 4

marks respectively are to be allotted for the same ratings for

promotion from E4 to E5 and above. In other words, the same

rating may attract different marks depending upon the level for

which the candidate is being considered.

13. The petitioner has approached the matter rather

differently. He has taken the extracts of the petitioner‟s

assessment by the relevant Promotion Committee for the years

2002 and 2003; as furnished by the respondent‟s additional

affidavit; disclosing the marks allotted by it for the ratings in his

ACRs for each of the three previous years, as his starting point. He

submits that, since marks are given by the Committee for the

performance rating mentioned in his ACR for a relevant year;

therefore, from the marks actually given, one can correctly work out

the ACR rating in question. Unfortunately, he is logical only up to

this point. Thereafter, out of the two columns mentioned in para

4.5, which is reproduced above, he uses the first column of marks

on the left in preference to the second column, for determining the

grading mentioned against the marks disclosed by the respondent;

And the rating found against the marks actually awarded by the

Promotion Committee by referring to the first column on the left, is

presumed by him to be his rating for that year. After doing that, he

then looks to the marks mentioned against that rating in the

second, right hand column, and contends that those are the marks

that should have been allotted to him by the Committee instead of

the marks actually allotted. He justifies this approach on the

specious reasoning that in all the relevant years, he was working in

the E4 level, and therefore, to work out the ratings awarded in

those years, the first column on the left must be used. For instance,

for the year 2000, the Promotion Committee has allotted the

petitioner 6 marks, therefore in terms of the first column, he must

have been given a rating of, "Good" in his ACR of that year. After

thus arriving at the rating of, "Good" for that year; he then

determines the corresponding marks for that rating in the second

column which happen to be 8 and contends that these are the

marks that should have been allotted to him by the Promotion

Committee for that year instead of the 6 marks actually shown to

have been allotted by the Committee in the extract furnished by the

respondent to this court. According to him, the method adopted by

the Promotion Committee has resulted in a downgrading of the ACR

ratings actually awarded to him. To my mind, the petitioner is

completely misdirected. His approach is based on a complete

misunderstanding of the purpose of clause 4.5. In fact, clause 4.5

postulates the allotment of different marks for the same rating

depending upon the level for which the candidate is being

considered. The level at which the ACR rating in question was

earned is immaterial; And simply because the Committee has

allotted the marks prescribed for a particular ACR rating in terms of

para 4.5 for considering him for promotion to the E5 level, cannot

therefore lead to an automatic presumption that the petitioner‟s

ratings have been reduced by it.

14. The examination of the ACR folder of the petitioner

which was produced by the respondent shows that as prescribed by

Rules 5.1 and 6.4 of the Promotion Policy, which is also reproduced

above; the Promotion Committee for the year 2002 examined the

ACRs of the petitioner for the years 1999, 2000 and 2001; whereas

the Promotion Committee for the year 2003 examined the ACRs of

the petitioner for the years 2000, 2001 and 2002. For the year

1999, there appear to have been two ACRs filled in. The first one is

from Ist January, 1999 to 24th September, 1999. In this ACR, the

reporting officer has evaluated his performance as, "average" and

no final assessment has been mentioned by the Moderation

Committee. Thereafter, the second ACR has been filled in for the

period 25th September, 1999 to 31st December, 1999. In this ACR,

the petitioner‟s performance has been rated as, "good". For the

year 2000, the petitioner‟s performance has been rated as,

"average". Thereafter, for the year 2001, his performance is rated

as, "average". For the year 2002, his performance has once again

been rated as, "average". The marks allotted by the Promotion

Committee for the year 2002, which was looking at the ACRs of the

years 1999, 2000 and 2001, are 6 for each year. In other words,

the Committee was under the impression that he had been rated as,

"average" for all the three years. Here, there appears to be an

error inasmuch as for the year 1999, his performance has in fact,

been rated as, "good" and, therefore, the Committee should have

allotted him 8 marks for that year. Even then, an increase of 2

marks would only take his total from 33 to 35 which would still be

far below the qualifying mark which has been set at 45 in paragraph

7.1(c) of the Policy. For the year 2003, the Performance Committee

took into consideration the ACR rating of the petitioner for the years

2000, 2001 and 2002. In all these years, the petitioner was rated

as, "average" and consequently, the Committee has correctly

allotted 6 marks for each year in this case. It appears that before

the sealed cover was opened, the petitioner was under the

impression that the overall ratings in his ACR for the relevant years

is in fact, "good". This is not the case. Furthermore, even if the

petitioner‟s case in this respect is taken at the highest and the ACRs

in question are presumed to be, "good", even then, while

considering the petitioner for promotion to the E5 level, it would

make no material difference to the outcome as his total would only

increase to 39 instead of 33 for the year 2002; and for the year

2003, it would become 37 instead of 31. However, in terms of the

aforesaid paragraph 7.1(c), the minimum benchmark prescribed is

45 marks. It follows, therefore, that even if his performance

ratings are allotted marks in the manner claimed by the petitioner,

he would still not be eligible to be promoted to the E-5 level due to

his failure to meet the aforesaid minimum criteria of 45 marks. He

was therefore not recommended. The petitioner in this case only

had a right to be considered for promotion but did not have any

vested right to be recommended for promotion. A similar view has

been taken by the Hon‟ble Supreme Court in Coal India Ltd. &

Ors. Vs. Saroj Kumar AIR 2007 SC 1706 in paragraph 11 which

reads as under:

"11. Although an employee of a State is not entitled to promotion to a higher post as matter of right, he is entitled to be considered therefor in terms of Article 16 of the Constitution of India."

Also, it is well settled that the question of a candidate‟s fitness for a

particular post is required to be decided by a duly constituted

Selection Committee; and the decision of such committee can only

be interfered with on the grounds of illegality or patent material

irregularity, mala fides or absurdity, and not otherwise.

15. The petitioner also seems to be under an impression

that if he was found unsuitable for promotion to the next, higher

post, it means he was also found unsuitable for the subordinate

post he was then holding, or conversely, because he was found

suitable for the subordinate, i.e., E4 post, he should have been

found suitable for the next E5 post as well. This is a rather

simplistic view of the matter, to say the least. An employee may

be good performer up to a certain level, but for the next level, he

may not be suitable. Furthermore, as the organizational pyramid

narrows towards the top, comparative evaluation becomes the

norm. Rules and guidelines are also put in place that often specify

minimum qualifying standards. This obviously results in the

elimination of many while ensuring uniformity of assessment by a

broad based Committee. There is nothing wrong with that. In any

case, there is no challenge to the Promotion Policy itself framed by

the respondent which prescribes all this.

16. The petitioner further contends that the participation of

the General Manager and Head of Department of the petitioner,

Mr. P.P. Singh, in the deliberations of the Promotion Committees

was contrary to the rules and that Mr. Singh‟s bias towards him is

the reason for the lowering of his ratings, and the rejection of his

candidature, by the Promotion Committee.

17. As already concluded in the preceding paragraphs, in

fact, there has been no lowering or reduction of the petitioner‟s

ratings awarded to him for his performance in the years in question,

by the Promotion Committees. Furthermore, admittedly, the

Performance Committee for the year 2002 comprised of as many as

11 officers, all of whom were party to the decision. In addition, as

pointed out by counsel for the respondent at the bar, the aforesaid

Mr. P.P.Singh was not the senior most officer sitting on that

Committee, and, in fact, there were as many as 4 officers with the

rank of General Manager, all of whom, were senior to

Mr. P.P.Singh, sitting on the Committee. He has also pointed out

that out of the 11 officers on the Committee, as many as 6 officers

were either of the same rank as that of Mr. P.P.Singh or senior to

him. Similarly, in the Promotion Committee of 2003, there were as

many as 7 officers who participated. In that view of the matter,

more so, when no specific mala fides have been spelt out against

the said Mr. P.P.Singh in the writ petition moved by the petitioner, it

cannot be said that mere participation of Mr. P.P.Singh could have

influenced even his superiors in such a manner as to result in any

appreciable difference to the outcome. Consequently, the

allegations of bias against the committee on the ground of

participation of Mr. P.P.Singh, who was a General Manager and

Head of the Department of the petitioner, fail to impress this Court.

18. With his rejoinder, the petitioner has annexed a copy of

a, "rating sheet for regional promotional committee 1999," which

he states was filed by the respondent itself, "in court below".

Presumably, he means that this was filed either in the earlier writ

petition filed by him in this court, or in some proceedings instituted

by him before the CIC. From this, he points out that two other

employees, i.e., Mr. Reddy and Mr. Pareek, were allotted the same

marks i.e. 28, the only difference was that Mr. Reddy‟s qualification

is B.Tech(Mech.) and his date of birth is 5th January, 1968, while

Mr. Pareek is a B.E. (Telecommunications and Electronics) and his

date of birth is 28th June, 1969, all other factors are identical and

the marks secured by them are also identical, but even then, only

Mr. Reddy was promoted, which clearly demonstrates the arbitrary

functioning of the respondent. A perusal of this document shows

that this concerns promotion from grade E 3 to grade E 4. The

effective date of promotion for candidates considered therein is also

mentioned as 1.1.2009. Furthermore, the very next document

annexed by him is another extract of the rating sheet of the

Promotion Committee which was constituted in 1999 showing the

consideration according to the petitioner‟s case for promotion from

grade E 3 to grade E 4 with effect from 1.1.1999 whereby he was

recommended for promotion to the E4 grade, and also duly

promoted in that grade. The controversy at hand pertains to the

consideration accorded to the petitioner for promotion to the next,

i.e., A5 grade, which is another matter altogether. What has been

done in any other case; and that too for promotion to a completely

different grade, by some other Promotion Committee, is, to my

mind, quite irrelevant to the case at hand. His next contention,

which is noted only to be rejected, is that in their reply to this

petition, the respondent have only extracted the petitioner‟s result

from the over-all result prepared by the Promotion Committee for

2002 for promotion to the E5 level and, therefore, the petitioner is

not in a position to see the comparative merit assessment of all

other candidates. It is obvious that even if the case of the

petitioner is taken at the highest, he does not fulfill the required

minimum criteria for promotion to the E-5 level. Since the

petitioner himself did not even achieve the minimum marks

stipulated for being considered for promotion to the E5 level, the

question of disclosing comparative merit of all other candidates

does not arise.

19. Under the circumstances, I find no ground to interfere

with the impugned decisions taken by the respondent in the

exercise of extraordinary jurisdiction under Article 226 of the

Constitution of India. The writ petition is therefore dismissed.

CM Nos.14636/2007 & 10984/2010

20. Since the main petition has been dismissed, these

applications do not survive and the same are dismissed as such.

SUDERSHAN KUMAR MISRA, J.

APRIL 10, 2012