Delhi High Court

Gnct Of Delhi & Ors vs Dalbir Singh on 28 September, 2012

Author: Siddharth Mridul

             THE HIGH COURT OF DELHI AT NEW DELHI

%                            Judgment reserved on                : 23.08.2012
                             Judgment pronounced on              : 28.09.2012

+       W.P.(C) 6776/2011

GNCT OF DELHI & ORS                                       ... Petitioners


                                       versus

DALBIR SINGH                                              ... Respondent
Advocates who appeared in this case:
For the Petitioners          : Ms Avnish Ahlawat with Ms Latika Chaudhary
For the Respondent           : Mr Saurabh Ahuja

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SIDDHARTH MRIDUL

                                JUDGMENT

SIDDHARTH MRIDUL, J.

1. The present writ petition assails the order dated 15th February, 2011

passed by the Central Administrative Tribunal, Principal Bench, New Delhi

in O.A. No.3618/2010 whereby the Tribunal allowed the O.A. filed by the

respondent herein with a direction that the respondent would continue in

the post of Head Constable (Executive) on ad-hoc basis till he gets

regularized for the said post. The Tribunal further directed that he would

be entitled to the pay and allowances attached to the post, however, such

period would not count towards his seniority in the rank of Head Constable

(Executive). The brief facts as are relevant to the adjudication of the

present writ petition are as follows:-

(i) The respondent was appointed in Delhi Police on 1st May,

1982 as Constable (Executive) and was confirmed in the said

rank w.e.f. 1st February, 1986.

(ii) The respondent was in the zone of consideration for Promotion

to List 'C' (Executive) and was considered for promotion on

ad-hoc basis for a period of six months. On 1st January, 2004

the respondent was promoted on ad-hoc basis vide order dated

1st January, 2004.

(iii) In November, 2004, a DPC was convened to select

Constables/Head Constables (Executive) (ad-hoc) for

admission of their names to Promotion List 'C' (Executive).

On recommendation of the said DPC, the name of the

respondent was admitted to the Promotion List 'C' (Executive)

w.e.f. 9th November, 2004 and as such he was promoted to

officiate as Head Constable (Executive) w.e.f. 18th November,

2004.

(iv) Consequently, after a lapse of about five years, it was reported

on 15th May, 2009, that the respondent had remained under

suspension from 29th October, 2004 to 10th March, 2005 and

had been awarded the punishment of withholding of future

increments for a period of one year without cumulative effect

and his suspension period determined as period 'not spent on

duty' vide order dated 23rd March, 2006. The said punishment

was an impediment for his promotion for a period of two years

and the same expired on 22nd March, 2008.

(v) It is the case of the petitioners that officers who have been

awarded any major punishment in the preceding five years on

the charges of corruption, moral turpitude and gross

dereliction in discharge of duty and involved in a major

punishment within two years on charges of administrative

lapse, misconduct, negligence, inefficient performance from

the date of consideration, may not be empanelled.

(vi) The fact of such punishment had not been brought to the

notice of the DPC held on the 2nd November, 2004 and

consequently, the name of the respondent had been brought to

the Promotion List 'C' (Executive) and the respondent had

subsequently been promoted to the rank of Head Constable

(Executive).

(vii) A Show Cause Notice (SCN) was issued to the respondent on

the 18th June, 2009 stating therein as to why the order

regarding admission of the respondent's name to Promotion

List 'C' (Executive) w.e.f. 9th November, 2004 and promotion

as Head Constable (Executive) w.e.f. 18th November, 2004

should not be cancelled with immediate effect.

(viii) Subsequently, after receiving the representation of the

respondent, appropriate orders were passed on the 25th

October, 2009 and the name of the respondent brought on

Promotion List 'C' (Executive) and further promotion to the

rank of Head Constable (Executive) was cancelled.

(ix) The respondent's name was again considered for promotion to

the Promotion List 'C' (Executive) but was found to be on

secret list of doubtful integrity.

(x) Aggrieved by the action of the petitioners, the respondent filed

the said O.A. No.3618/2010 which was allowed vide order

dated 15th February, 2011as aforesaid.

(xi) The petitioners have filed the present writ petition impugning

the said order dated 15th February, 2011 passed by the

Tribunal.

2. In the present case the question to be determined is whether the

promotion of the respondent herein to the post of Head Constable

(Executive) is legally sustainable in view of the fact that the factual

omission, regarding an imposition of punishment, was not considered by

the DPC at the relevant time.

3. On behalf of the petitioners it was submitted that as per the

Government of India's order FR 31-A, officers who had been awarded

major punishment in the preceding five years on the charge of corruption,

moral turpitude and gross dereliction in discharge of duties or major

punishment within two years on charges of administrative lapses,

misconduct, negligent, inefficient performance from the date of

consideration may not be empanelled.

4. The counsel for the petitioners further submitted that had the fact

about the respondent's previous punishment been brought to the notice of

DPC, findings with regard to the suitability of the respondent to be included

in the Promotion List 'C' (Executive), would have been kept in a sealed

cover in terms of the provisions contained in Rule 5 (iii) of the Delhi Police

(Promotion & Confirmation) Rules, 1980 and his promotion would have

been kept in abeyance till the decision of suspension period. This omission

has resulted in admission of the respondent's name to the Promotion List

'C' (Executive) and further promotion to the rank of Head Constable

(Executive). Counsel urges that the mistake made with regard to the

respondent's promotion had been corrected by issuing him a Show Cause

Notice and receiving his representation and thereafter passing an

appropriate order confirming the correction.

5. It was also urged on behalf of the petitioners that the Government of

India's order in FR 31-A stipulates that the order of the Government for

promotion or appointment of Government servant should be cancelled as

soon as it is brought to the notice of the appointing authority that such a

promotion was the result of a factual error and the Government servant

should, immediately on such cancellation, be brought to the position which

he would have held but for the incorrect order of promotion or

appointment.

6. The petitioners have relied upon the decision of the Supreme Court

reported as Union ov India & Anr. vs. Narendra Singh : 2008 (2) SCC

750. In that case the Supreme Court considered a case of erroneous

promotion. The facts of that case were that an employee who was an

Accountant was mistakenly promoted as Senior Accountant (Functional).

The mistake was detected after four years and it was found that the

employee was ineligible in view of the fact that the legal requirement of

clearing a departmental examination for Accountants for the promotional

post had not been complied with. A Show Cause Notice was issued, the

case of the employee was considered and thereafter his promotion was

cancelled. The O.A. challenging the order of cancellation of promotion

was decided with a direction to reconsider the case. The Supreme Court

considered the fact that the Recruitment Rules contained a provision

empowering the Comptroller and Auditor General of India to relax the

Rules with respect to any class or category of persons and yet upheld the

cancellation of promotion.

7. Per contra, it was submitted on behalf of the respondent that the

promotion to the post of Head Constable (Executive) and inclusion of his

name to the Promotion List 'C' (Executive) was not due to any fault or

misrepresentation or mistake attributable to him. On the other hand,

admittedly, it was a mistake committed by the petitioners and correction of

such a mistake at this stage, would entail difficult consequences and undue

hardship to the respondent.

8. It was further submitted that the respondent's promotion order had

been issued way back in the year 2004 and correction of the alleged

mistake after such a long period would cause irreparable loss of reputation,

dignity and morale to the respondent. It was urged that the respondent

would have to work under his juniors if the orders of cancellation of

promotion were to be upheld.

9. The respondent relied on a decision of a Division Bench of this Court

reported as The Commissioner of Police & Ors. vs. H.C. Durgesh Kumar

: 147 (2008) DLT 42 wherein this Court considered the case of a mistaken

promotion of an OBC candidate who was erroneously treated as SC/ST

candidate and consequently erroneously promoted.

10. In the present case, it is seen that the procedure prescribed

necessitates that all the facts including vigilance clearance, punishment

awarded, suspension order, departmental enquiry and whether the employee

is faced with pending criminal charges, are all facts which are to be placed

before the DPC. In the present case, this procedure was admittedly not

followed and the DPC was not informed of the respondent's suspension at

the relevant time. The reason why such a lapse occurred could be owing to

the fact that the concerned DPC was convened only a few days after the

respondent was suspended. However, the respondent had all along been

aware of his suspension from 29th October, 2004 to 10th March, 2005 and at

the time the DPC was held on the 2nd November, 2004.

11. In Narendera Singh (supra) the Supreme Court observed that:-

"32. It is true that the mistake was of the Department and the respondent was promoted though he was not eligible and qualified. But, we cannot countenance the submission of the respondent that the mistake cannot be corrected. Mistakes are mistakes and they can always be corrected by following due process of law. (In Indian Council of Agricultural Research and Anr. V. T.K. Suryanarayan and Ors. (1997) 6 SCC 766, it was held that if erroneous promotion is given by wrongly interpreting the rules, the employer cannot be prevented from applying the rules rightly and in correcting the mistake. It may cause hardship to the employees but a court of law cannot ignore Statutory Rules.

33. As observed by us, Statutory Rules provide for passing of Departmental Examination and the Authorities were right in not relaxing the said condition and no fault can be found with the Authorities in insisting for the requirement of law. In the circumstances, the action of the Authorities of correcting the mistake cannot be faulted."

12. In Durgesh Kumar (supra), this Court had considered a case of

erroneous promotion of an OBC candidate who was mistakenly treated as

SC/ST candidate and subsequently promoted to the post of Head Constable.

It was held that the candidate being a Constable had not noticed this aspect

and was unaware of the same as the list was never circulated. Hence, there

was no question of the candidate having concealed any information

deliberately or not having informed the authorities in this behalf.

13. The case of Durgesh Kumar (supra) does not come to the aid of the

respondent, inasmuch as, in the instant matter, as has been noticed above,

the respondent was fully aware of his suspension. The respondent was

conscious of the fact that his name could not have been placed on the

Promotion List 'C' (Executive) and yet conveniently chose to remain silent