G.G.Tandon vs Mcd & Ors.
2013 Latest Caselaw 4935 Del

*	IN THE HIGH COURT OF DELHI AT NEW DELHI
%						Date of decision:  October 28, 2013
+ 				W.P.(C) 1581/2012
	G.G. TANDON						..... Petitioner
				Represented by:	Mr.Rajeev Sharma, Advocate

				versus

	MCD & ORS.						..... Respondents
				Represented by:	Mr.Gaurang Kanth, Advocate

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE V. KAMESWAR RAO

V.KAMESWAR RAO, J.

1. The petitioner Sh.G.G.Tandon impugns the order dated November 28, 2011 passed by the Central Administrative Tribunal in Original Application No.1640/2011, whereby his claim for payment of salary with effect from 1998-1999 has been rejected.

2. The brief facts are that the petitioner was appointed as Assistant Engineer (Civil) in the Municipal Corporation of Delhi (MCD). The next promotional post is that of Executive Engineer (Civil). Between the period 1997-2004 disciplinary proceedings were pending against the petitioner. On October 14, 2005 he addressed a representation to the Commissioner of the Municipal Corporation of Delhi praying that he be promoted to the post of Executive Engineer (Civil). Considering his request and after obtaining the necessary vigilance clearance the petitioner was promoted as Executive Engineer (Civil) on ad-hoc basis with effect from December 01, 2005.

3. For the reason the petitioner was keeping indifferent health he applied for voluntary retirement and the same was granted to him with effect from May 14, 2008.

4. A writ petition No.12134/2006 Anil Tyagi vs. MCD & Ors. was filed in this Court. It appears that certain directions were issued therein to make promotions. Since the order of the Court was not complied with, a Contempt Petition No.489/2007 was filed seeking enforcement of the direction issued. Pursuant thereto the cases of all the Assistant Engineers (Civil), including the petitioner, were sent to UPSC for holding DPC to prepare the select panel. Even though the petitioner had retired by that time his name was included in the list of eligible candidates who came within the zone of consideration being promoted. He was found 'unfit' for being promoted in that particular panel year. His case was further considered for the year 1998-1999 for which he was found 'fit'.

5. The respondents issued an office order dated September 08, 2008 promoting persons from the post of Assistant Engineers (Civil) to the post of Executive Engineers (Civil) which did not include the name of the petitioner. At this the petitioner made a representation to the authorities which was rejected vide order dated October 25, 2010, inter-alia, recording as under:

"Sh.G.G.Tandon has already retired my Municipal Service in May, 2008 i.e. the date prior holding of DPC of EE(Civil) in UPSC, as such, in pursuance of DoP&T O.M dated 09.04.1996 the request of the applicant is not acceptable."

6. The petitioner filed Original Application No.1640/2011 before the Tribunal challenging the office order dated October 25, 2010 praying that he be granted salary to the post Executive Engineer (Civil) with effect from 1998-1999 since he has been declared fit for promotion by the DPC.

7. It is the case of the respondents that the petitioner had voluntary retired on May 14, 2008 from the post of Executive Engineer (Civil) which was in the scale of `10000-15200 (5th CPC) which corresponds to pay band 3, `15600-39100 + Grade Pay `6600 under the 6th CPC. Merely because a DPC recommends a person for promotion to the post of Executive Engineer (Civil) conducted on August 22, 2008 the petitioner would not be entitled to be promoted and as regards his name being included in the list of eligible candidates reliance was placed upon an O.M. dated April 09, 1996.

8. The respondents also placed reliance on para No.6.4.4 of the DoPT office memorandum dated April 10, 1989 which stipulates that promotion can only be granted with prospective effect even in cases where the vacancies relate to earlier years. Further para No.17.11 of the said O.M envisages that promotions cannot be effective from a date before the date of communication of the decision/minutes of the DPC by the UPSC.

9. After considering the stand of the rival parties and by relying upon the judgments reported as (1989) Supp 2 SCC 625 Union of India vs. K.K.Wadera and (1987) 7 SCC 44 Baijnath Sharma vs. Hon'ble Rajasthan High Court at Jodhpur & Anr. the Tribunal came to the view that the petitioner is not entitled to any relief.

10. We concur with the view taken by the Tribunal because to maintain the integrity of a select panel it is necessary that all eligible candidates in the panel year are considered for being promoted and this would include those who have retired from service if the DPC is held with reference to an interior date.

11. There is another perspective to the matter. It is an admitted position that the petitioner took voluntary retirement on May 14, 2008 by giving a notice for voluntary retirement under the Rules. On voluntary retirement the master-servant relationship snaps on the existing terms and as per the existing relationship.

11. In fact the instructions issued by the Government of India from time to time as being followed by MCD stipulate: (i) the names of retired officials may be included in the panel for promotion but they would have no right for actual promotion and; (ii) that the regular promotion shall be effective from the date the officer is actually promoted or the date of meeting of the DPC.

12. We note that the precise question came up for hearing in this Court in Writ Petition (Civil) No.20812/2005 decided on January 12, 2007 Union of India vs. Rajendra Roy & Ors. wherein this Court referring to O.M dated October 12, 1998 has held as under:

"19. Reliance placed by the Tribunal on OM No. 22011/4/08/Estt. (DS) dated 12.10.1998 issued by the DOP & T also appears to be misplaced. The Tribunal has read words into the language used in the said office memorandum which presumably was issued after the judgment of the Supreme Court in the case of Baijnath Sharma (supra). The relevant extract of the said office memorandum reads as follows:

according to the legal opinion it would not be in order if eligible employees, who were within the zone of consideration for the relevant year(s) but are not actually in service when the DPC is being held, are also considered while preparing year wise, zone of consideration/panel, and consequently, their juniors to consider (in their places), who would not have been in the zone of consideration if the DPC(s) had been held in time. This is considered imperative to identify the correct zone of consideration for relevant year(s)

This part of the office memorandum is in consonance with the judgment of the Supreme Court in Baijnath Sharma (supra) since it provides that the superannuated employees should not be considered by the DPC, which is being held after their superannuation and in their place juniors, who are otherwise eligible should be brought into the zone of consideration.

20. However, we notice that, curiously, the next two sentences used in the same office memorandum go contrary to the earlier part. It goes on to say "names of the retired officials may also be included in the panel(s) such retired officials would, however, have no right for actual promotion".

21. While as per the earlier part the superannuated employees are not to be placed in the zone of consideration/panel, contradicting the said statement, the later part states that names of the retired officials may also be included in the panel. The use of the expression "actual promotion" in the following sentence gives the impression that the same has been used in contradistinction with "notional promotion". It appears that the Tribunal was influenced by the latter portion of the said OM and, therefore, construed it in favor of the respondent.

22. We feel that the Tribunal erred on this count as well. The thrust of the OM, which was issued soon after the decision of the Hon'ble Supreme Court in Baijnath Sharma (supra) is to clarify that the superannuated employees should not be considered for promotion where the DPC is being held after their superannuation. The later part of the OM, which is contradictory to the dictum of the Hon'ble Supreme Court in Baijnath Sharma (supra) obviously cannot be given effect to. Pertinently even the said OM does not in clear terms say that the retired/superannuated employees, if considered and recommended by the DPC would be granted notional promotion from a back date. However, the Tribunal has read this aspect into the OM which, in any event, it could not have done.

23. In view of the aforesaid, we find that the decision of the Tribunal is erroneous and the directions given therein are contrary to the judgments of the Hon'ble Supreme Court in K.K. Vadera (supra) as well as Baijnath Sharma (supra)."

13. The position of law in Rajendra Roy's case (supra) was referred to and reiterated by this Court in W.P.(C) No.5359/2008 Rama Krishna Sharma vs. Union of India & Ors. decided on January 18, 2010. The relevant portion of the same is reproduced as under:

"13. It may be observed here that a Division Bench of this Court in the case of UOI Vs. Rajendra Roy (Supra) considered as to whether in that case the respondent who had superannuated before the consideration of his case for promotion by the DPC, could be granted promotion on a notional basis, by requiring his case to be considered by the DPC, as and when it is held, and in the event of his being empanelled by the DPC, from the date the vacancy against which he could be promoted becomes available. The Tribunal answered this question in favour of the petitioner. Union of India came before this Court when it was held that the decision of the Tribunal was erroneous & was contrary to the judgment of the Supreme Court in UOI & Ors Vs. K.K. Vadhera 1989 Supp. (2) SCC 625 as well as in the case of Baijnath Sharma Vs. Hon'ble Rajasthan High Court at Jodhpur & Anr. 1988 SCC (L&S) 1754 discussed in that order."

14. Further we find that between 1997-2004 the petitioner was under a cloud. With effect from December 01, 2005 he has been granted promotion on ad-hoc basis and was being paid salary to the post of Executive Engineer (Civil). The petitioner did not approach any Court of law seeking promotion to the post of Executive Engineer (Civil). The writ petition No.12134/2006 was filed by one Anil Tyagi and not the petitioner. Pursuant thereto the UPC convened a DPC. On the date of the DPC admittedly the petitioner stood retired by taking voluntary retirement. Under such circumstances also the petitioner cannot be bestowed benefits which are not contemplated under the rules.

15. We do not see any merit in the writ petition and the same is accordingly dismissed.

16. No costs.

(V.KAMESWAR RAO) JUDGE

(PRADEEP NANDRAJOG) JUDGE

OCTOBER 28, 2013 km