M.F.Khan vs B.H.E.L & Ors.
2013 Latest Caselaw 1109 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         WP(C) No.1968/1996

%                                                       March 06, 2013

      M.F.Khan                                            ..... Petitioner
                          Through:       Mr. Mahesh Srivastava with
                                         Mr. Ashok Kumar Sharma &
                                         Mr. Vaibhav Manu Srivastava, Advs.

                          versus

      B.H.E.L & ORS.                                       ..... Respondents

                          Through:       Mr. Vinod K. Srivastava, Adv.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition, the petitioner prays for setting aside the

order of the respondent No.1 dated 30.4.1996 whereby the petitioner was re-

designated from the Media Assistant Grade-I to Photographer Grade-I by

withdrawing the designation of Media Assistant Grade-I ab initio.

2. On behalf of the petitioner it is pleaded and argued that the

petitioner was appointed with respondent No.1 as an artisan trainee way-

back in July, 1996 and thereafter he rose to the grade of Master Technician

on 25.6.1990. It is further pleaded that he remained as Master Technician

until 12.10.1992 whereafter he was transferred to Publicity and Public

Relations Department by the order dated 12.10.1992. Subsequently, the

designation of the petitioner was changed from Master

Technician/Photographer Grade-I to Media Assistant Grade-I by an order

dated 13.10.1992 issued by one Sh. S.K.Sahay, Deputy Manager (personnel)

w.e.f. 12.10.92 i.e the date of his joining the Publicity & Public Relations

Department. The petitioner claims that the respondent No.1

withdrawing/cancelling ab initio the order dated 13.10.1992 thereafter issued

the office order dated 30.4.1996, and which is argued to be illegal, inasmuch

as the same has been issued without following the principles of natural

justice. It is argued that the petitioner was rightly promoted to Media

Assistant Grade-I.

3. On behalf of the respondent No.1, the case of the petitioner is

very vehemently disputed. In fact grave allegations of fraud and

manipulation of the official record have been made against the petitioner and

which is alleged to be done in connivance with Sh.S.K.Sahai who issued the

so-called office order dated 13.10.1992 (Annexure -A-1). It is contended in

the counter affidavit that the order dated 13.10.1992 is a manipulated order

and did not correctly exist in the official file inasmuch as there are no

official notings before passing of the order dated 13.10.1992, and surely,

there are bound to be some notings before a person is promoted. It is further

contended in the counter affidavit of the respondent No.1 that change of the

grade from Master Technician/Photographer Grade-I to Media Assistant

being a change from a workman cadre to a supervisor cadre could only have

been through a regularly constituted DPC, and never any DPC was

constituted nor is the case of the petitioner that he participated in any DPC

before being promoted to the post of a Media Assistant. It is also argued

that in various documents issued after 13.10.1992, the petitioner has

described himself as a Senior Photographer, showing that the petitioner

never became a Media Assistant. Since the averments in the counter

affidavit are relevant to determine the controversy, the preliminary

objections in the said counter affidavit are reproduced as under:-

"Preliminary submissions

1. That the petitioner is guilty of suppression of material facts and particulars. The petitioner in connivance and collusion with certain staff of the respondents illegally managed to obtain a letter dated 13.10.92 changing his designation from Photographer Gr.I to Media Assistant Gr.I. In fact the petitioner was never redesignated as Media Assistant by the Respondent.

2. The petitioner joined Bharat Heavy Electricals Limited (in short hereinafter called BHEL) at Ranipur, Hardwar as an Artisan Trainee in 1966. He was absorbed as Electrician Gr.B on 30-7-68, promoted as Electrician Gr.I on 22.6.74, promoted as Senior Artisan Gr.III on 25-6-80, then promoted as Sr. Artisan Gr.II on 25-6-85 and thereafter promoted as Master Technician on 25-6-90. He remained as Master Technician in Block IV- CIM Department until 12-10- 92 when on his request and on account of knowledge of photography he was transferred to Publicity and Public Relations Department by order dated 12-10-92 is enclosed herewith as Annexure R-1 (True English translation thereof is Annexure R-1/A). Subsequently, by order dated 13-10-92 petitioner's designation was changed from Master Technician (A-IX/Technical side) to Photographer Gr.I (A-IX/Technical side) w.e.f. 12-10-92 i.e. the date of his joining the Publicity and Public Relations Department (hereinafter in short called the P & PR Deptt.). A true copy of the order dated 13-10-92 is filed herewith as Annexure R-2 (True English translation thereof is Annexure R-2/A).

3. The petitioner continued working as Photographer Gr.I in the P & PR Deptt. and continued discharging his duties as such.

4. The respondents started receiving complaints from some unions that some employees who were working as Master Technician/Photographer which are non-supervisory post have been designated as Media Assistant which is a supervisory post. The union alleged that this was done by some particular senior officer illegally and in collusion with the petitioner. The union office bearers, on verbal enquiry gave the particular instance of the petitioner.

5. That on such complaints being received, the matter was investigated and it was found that an office order dated 13-10-92 purported to have been signed by one Shri S.K.Sahay, Deputy General Manager (Personnel) was on the

personal file of the petitioner and that by virtue of the said order the petitioner was purported to have been designated as Media Assistant Gr.I. It was found that the said alleged order dated 13-10-92 did not have any page number in continuity as was available on the other papers. It was also found that the page number of the earlier page had been changed from serial No.151 to 151-A and another circular inserted as Page No. 151-B. No page number was given on the order dated 13-10- 92 allegedly changing the petitioners designation as Media Assistant.

6. It is further submitted that there were no notings/directions in the personal file of the petitioner in support of the alleged order dated 13-10-92 without which redesignation could not be effected.

7. That on further investigation it was found that the petitioner had been signing the attendance register as Senior Photographer (non-supervisory grade of A-IX/Technical) right upto 24-6-95. True copies of the attendance register during the period November, 1992 to 24-6-95 are filed herewith and are collectively marked as Annexure R-3. It is submitted that the wage period of the respondent Company ends on the 24th of every month.

8. The petitioner, consequent upon the transfer to P & PR Deptt. vide order dated 12-10-92 (Annexure R-1) submitted his joining report dated 3-11-92 to the P & PR Deptt. He showed himself as Photographer Gr. I same as Senior Photographer in the said joining report. True copy of the joining report of the petitioner is Annexure R-4.

The petitioner was allowed by the P & PR Deptt. photographer equipment vide permission slip dated 13-9-94 in connection with covering some official; functions. This was also signed by the petitioner as Senior Photographer. True copy of the permission dated 13-9-94 is filed herewith as Annexure R-5. Another permission slip dated 2-9-94 issued

by the P & PR Deptt. also describes the petitioner as Senior Photographer. True copy of the same is filed herewith as Annexure R-6. Yet another gate pass issued to the petitioner by the P & PR Deptt. on 25-7-94 counter signed by the Assistant Commandant (CISF) refers to him as Senior Photographer. True copy whereof is filed as Annexure R-7.

9. The petitioner submitted a Mecial TA claim dated 7- 6-95 is filed herewith as Annexure R-8.

10. That Shri S.K.Sahay, who is purported to have signed the office order dated 13-10-92 (copy filed by the petitioner as Annexure A-1) the service of the respondent on 13-6-95. It is obvious that the petitioner in collusion with the officer managed to illegally procure the said order from him redesignating him as Media Assistant.

11. It is further submitted that no formal procedure i.e. deliberation by Departmental Promotion Committee was adopted for allowing this change of designation. The DPC deliberations are done only on June every year to finalise promotion and change of designation from "Artisan" to "supervisor" cadre. It is further submitted that the employees in A-IX grade are not at all eligible for change of designation from Artisan to Supervisor.

12. The alleged order dated 13-10-92 purported to have been signed by Shri S.K.Sahay, was in view of the facts explained above canceled by office order dated 30-4-96. The petitioner cannot take advantage or benefit out of the alleged order dated 13-10-92 - he himself being guilty of illegally procuring the same." (underlining added).

4. On behalf of the petitioner, in rejoinder, reliance is placed upon

various documents issued by the respondent No.1, and which are from

running pages 85 to 90 of the paper book and which show that the petitioner

was being described as a Media Assistant Grade-I and not a senior

photographer as is being urged by the respondent No.1. The petitioner has

also placed reliance upon a judgment of the Supreme Court in the case of

Prakash Ratan Sinha vs. State of Bihar & Ors. , 2009 (14) SCC 690 to

argue that once a person is appointed to a post, he thereafter could not have

been demoted therefrom without following the principles of natural justice.

5. At the outset, I must state that fraud or forgery or manipulation

nullifies everything which is built thereupon. A superstructure having the

foundation of sand is bound to crumble once the foundation itself goes. This

is being said by me because if the order dated 13.10.92 upon which the

petitioner relies for being promoted as Media Assistant, is found not to be a

valid document in the official file, then, even if the respondent No.1 has

thereafter in some of its documents been calling the petitioner as Media

Assistant Grade-I though in other documents the petitioner has contrarily

been called only as Senior Photographer or Master Technician, will not

make any difference with respect to the result of the writ petition once the

fact is that the petitioner in fact was never appointed as a Media Assistant

Grade-I. Before proceeding further, it is at this stage necessary to state that

when the respondent No.1 in its counter affidavit specifically had mentioned

with respect to the promotion to a Media Assistant being made only by

holding of a DPC, in the rejoinder, except a bare denial, nothing has been

stated. It has not been stated as to before which DPC the petitioner appeared

for promotion, and when the DPC held its meeting to promote the petitioner

from a Master Technician Grade-I/Senior Photographer to Media Assistant

Grade-I. It is the case of the petitioner himself that on the appointment of

the petitioner from a Master Technician to a Media Assistant there resulted a

promotion, then surely that promotion had to be in accordance with the

extant Rules of the respondent No.1. None of the parties have filed the

extant Rules, however, in the counter affidavit reference is made to the

promotion having to be made only by a DPC because the cadre of the

petitioner on promotion from Master Technician Grade-I to Media Assistant

Grade-I is changed from a workman category to a supervisor category.

Onus was upon the petitioner who has come to the Court to specifically

show what were the Rules or if there were no Rules and only a DPC was

required, then which was the DPC which was held for promoting the

petitioner from a Master Technician Grade-I to a Media Assistant Grade-I?

The pleadings of the petitioner, both the writ petition and the rejoinder filed

are conspicuously silent in this regard. Merely because both the parties, i.e

petitioner on one hand and the respondent No. 1 on the other hand had been

differently labeling the petitioner sometimes as a Master Technician/Senior

Photographer Grade-I and sometimes as a Media Assistant Grade- I cannot

be determinative of the fact that whether at all the order dated 13.10.92

which is relied upon by the petitioner for promotion to the post as a Media

Assistant Grade-I is or is not a valid document.

6. In my opinion, there is a lot of strength in the averments made

in the counter affidavit, inasmuch as, averments in the counter affidavit

show that the order dated 13.10.1992 passed by Sh. S.K.Sahai (who has

retired in the meanwhile), exists in the office file without any official notings

of the petitioner being promoted to a Media Assistant Grade-I. Further there

are no notings with respect to any DPC having been held. There is also a

valid issue with respect to discrepancy of running page numberings as there

is no page number given on the letter dated 13.10.92 whereby the petitioner

was appointed as a Media Assistant.

7. In view of the facts of this case, the order dated 13.10.1992

relied on by the petitioner being not a legally valid document, the issue is

that does the ratio of the judgment in the case of Prakash Ratan Sinha

(supra) relied upon by the petitioner apply to the facts of the present case or

not. In my opinion, the said judgment will not apply because in the said

judgment, a person who was appointed as a daily wager was asked to

discharge the work of accounts clerk in view of his qualification and

experience and that appellant had filed a proper application before the Circle

Promotion Committee for his promotion or reappointment to the post of

accounts clerk and thereafter that request was considered by the Committee

and thereafter that petitioner's case was in fact recommended for change in

nomenclature from a daily wager to an accounts clerk and consequential

order was passed changing the nomenclature from labourer to an accounts

clerk. Of course, subsequently this order was withdrawn on the ground that

the same was contrary to the Rules, however, the very existence of the

recommendation of the Committee dated 6.1.1998 was never in question. In

the present case, however, the letter dated 13.10.92 is being questioned with

regard to its legal existence, and the same is alleged by respondent No.1 to

be fabricated and manipulated, and thus the ratio of Prakash Ratan Sinha

(supra) cannot apply to the facts of the present case.

8. In my opinion, if I allow the writ petition, it would amount to

the Court becoming its imprimatur to a fraud which was perpetrated upon

the respondent No.1. As already stated above, no Rules are quoted by the

petitioner for seeking promotion to Media Assistant Grade-I. Also, there is

no reference to any DPC which the petitioner attended for being promoted

from the workman cadre of Master Technician to the supervisor cadre of

Media Assistant Grade-I. Any promotion order is bound to be preceded by

appropriate notings in the official file, and which notings are conspicuously

absent in the file of the petitioner. Quite clearly the order dated 13.10.1992

is a fabricated document, and I agree with the stand which has been taken up

by the respondent No.1 in its counter affidavit.

9. In view of the above, the writ petition being without any merit,

is dismissed with costs of Rs.20,000/-. Costs can be recovered by the

respondent No.1 in accordance with law.

                                              VALMIKI J. MEHTA, J
MARCH        06, 2013
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