Kamal Nayan Bhatt vs Union Of India & Ors.
2014 Latest Caselaw 4404 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+       W.P.(C) 4678/2014
        KAMAL NAYAN BHATT                                 ..... Petitioner
                    Through            Ms. Jyoti Singh, Sr. Advocate with
                                       Mr. Sameer Sharma and Mr.
                                       Amandeep Joshi, Advocates

                          versus

        UNION OF INDIA & ORS.                         ..... Respondents
                      Through          Mr. Manish Mohan, Central
                                       Government Standing Counsel
                                       with Ms. Manisha Rana Singh, Mr.
                                       Gaurav Sharma, Ms. Puja Sarkar,
                                       Advocates for R-1 to 3 and 5

                                       Mr. Naresh Kaushik, Ms. Amita
                                       Kalkal & Ms. Aditi Gupta, Advs.
                                       for R-4 UPSC.

        CORAM:
        HON'BLE MR. JUSTICE KAILASH GAMBHIR
        HON'BLE MR. JUSTICE NAJMI WAZIRI

                          ORDER

        %                 12.09.2014

KAILASH GAMBHIR, J. (ORAL)

1. The petitioner, presently working as Joint Director in Border Road

Organisation and due for promotion to the next higher post of Director

(Administration) has filed the instant writ petition under Article 226 of

the Constitution of India. He seeks quashing of the Memorandum dated

19th March, 2012, whereby respondent No.2 has initiated minor penalty

proceedings against him under Rule 16 of CCS (CCA) Rules, 1965. The

reason for issuing the said memorandum is that the petitioner had issued

an experience certificate in favour of one Mr. Virendra Dutt Joshi,

Supervisor NT Grade-II GS-184797F, who was one amongst many

candidates seeking appointment to the post of Administrative Officer

(Group A) in the Border Road Organisation although the post occupied

by him was neither a supervisory post nor a post relevant for making him

eligible for consideration for appointment to the post of Administrative

Officer in BRO.

2. The case of the petitioner is that the legality, validity and

correctness of such experience certificates issued by GREF Officers and

the Army officers in favour of the candidates seeking appointment to the

post of Administrative Officer was a subject matter of writ petitions

decided by a Division Bench of this Court vide order dated 10 th July,

2013 in the case of Vinod Singh and Ors. vs Union of India & Ors.,

wherein the Court took the view that the experience certificates issued

by the officers in favour of such candidates were valid and proper and the

same duly met the eligibility conditions notified by the UPSC. It is also

contended that Special Leave Petitions (Civil) Nos. 37734-37736/2013

were preferred by the Union of India challenging the decision of the

Division Bench in CWP No. 4997/2011, CWP 5457/2011, CWP No.

6403/2011. The said SLPs were dismissed by the Hon'ble Supreme Court

of India on 6.1.2014. The petitioner's grievance is that despite the

validity of the experience certificates, issued by GREF officers and Army

officers, being upheld by the Supreme Court, the respondents have not

withdrawn the minor penalty proceedings against him; although the

Competent Authority has already exonerated all the 30 Army officers

who had issued identical experience certificates.

3. Ms. Jyoti Singh, the learned Senior Advocate appearing for the

petitioner has taken us through the sequence of events right from the

stage when the experience certificate was issued by the petitioner in

favour of one Mr. Virendra Dutt Joshi till the stage when the vacancy for

the post of Director (Administration) had arisen. Drawing attention of the

Court to the experience certificate dated 01.10.2007 issued by the

petitioner in his capacity as Senior Administrative Officer, the learned

senior counsel pointed out that in the experience certificate, the petitioner

had only certified that Mr. Virendra Dutt Joshi, Supervisor, Non-

Technical Grade-II was serving in the General Reserve Engineer Force

since 10th June, 2002 till the date of issuance of the said certificate and

also specified the nature of duties performed by him since his

appointment on the said post. The learned senior counsel further

submitted that little variations in the substance depended upon an

individual's way of certification; that similar experience certificates were

issued by Army officers as well as GREF officers. To draw a comparison

of the experience certificate given in favour of Mr. Virendra Dutt Joshi

with that of Mr. Indresh Kumar, who was occupying the same post and

discharged similar duties as the former, the learned senior counsel

pointed out that on comparison of these two certificates, one can clearly

notice that in both the certificates, the nature of duties performed by the

officers have been described as duties rendered in general administration,

establishment, finance, accounts stores etc. The learned senior counsel

also submitted that the experience certificate issued in favour of Mr.

Indresh Kumar was a subject matter of the decision in the aforesaid writ

petition although the experience certificate issued by the petitioner in

favour of Mr. Virendra Dutt Joshi was not under the legal scrutiny of the

Court because of his failure to make it to the list of short listed

candidates.

4. The learned senior counsel also invited attention of the Court to a

copy of the letter dated 6th December, 2012 whereby the matter was taken

up by the Director General, Border Road Organisation with the Deputy

Secretary BRDB requesting them to re-examine the cases of the GREF

officers for their exoneration, at par with the Army officers, who already

stood exonerated for issuing the same kind of experience certificates so

that there is no disparity in dispensing justice in identical cases. The

learned senior counsel has further drawn the attention of the Court to the

list of 30 Army officers, out of which 20 officers against whom show

cause notices were issued but were exonerated and for the remaining

officers, it was decided to not proceed further and the matter with regard

to the issuance of experience certificates by the Army officers was treated

as closed. The learned senior counsel has also invited the attention of the

Court to a letter dated 18th October, 2012 written by the Additional

Director General to the Secretary, Ministry of Defence recommending

repeal of the Memorandum dated 19th March, 2012 issued against the

petitioner. The petitioner had filed a detailed representation against it

seeking dropping of the proceedings against him under Rule 16 CCS

(CCA) Rules, 1965 so that he is not deprived of being considered to the

higher post of Director (Administration). However, no response or

decision was taken thereon by the respondents.

5. Based on the above submissions, the learned senior counsel for the

petitioner strongly urged that the respondents have deliberately not

withdrawn the said Memorandum dated 19th March, 2012 only to deprive

the petitioner from being considered to the higher post of Director

(Administration), for which the DPC is likely to be held very shortly.

6. The writ petition has been strongly opposed by respondent Nos.1 to

3 and 5. They contend that the procedure and the guidelines to be

followed for promotion of a Government servant, against whom

disciplinary/ court proceedings are pending or whose conduct is under

investigation, has been laid down in DoPT OM No.22011/4/91-Estt (A)

dated 14.09.1992. Based on this DoPT guideline, the respondents argue

that the petitioner against whom a chargesheet has already been issued,

the DPC would assess his suitability along with other eligible candidates,

without taking into consideration the disciplinary case and the assessment

of the DPC, in so far as the final selection of the petitioner to the

promotional post is concerned, the same will be kept in a sealed cover.

The respondents also contended that in the event of a Government servant

being completely exonerated and allegations against him being ultimately

dropped or disproved, in the disciplinary case, his promotion would be

determined with reference to the position assigned to him in the findings

kept in the sealed cover. He may be promoted notionally with reference

to the date of promotion of his next junior and vice versa. If some

penalties have been imposed on the Government servant as a result of the

disciplinary proceedings, then the findings given in the sealed cover shall

be acted upon. His case for promotion would be considered by the next

DPC in the normal course, having regard to the penalty imposed on him.

7. With regard to the issuance of the experience certificate by the

petitioner in favour of Mr. Virendra Dutt Joshi, the stand of the

respondents is that a chargesheet vide BRDB Memorandum dated

19.03.2002 has already been issued to the petitioner and the concerned

Vigilance Section is in the process of reviewing all the experience

certificates issued by the GREF Officers in favour of the candidates

seeking appointment to the post of 'Administrative Officer' in BRO and

as long as the decision is not taken by the Vigilance Section, there is no

option left with the DPC but to apply the sealed cover procedure in the

case of the petitioner.

8. A separate affidavit has been filed by respondent No.4/ UPSC and

their stand is that they have not received any proposal so far from the

BRO to convene a DPC to consider the promotion of the petitioner to the

post of Director (Administration). They have also stated that the proposal

for convening the DPC for considering promotion to the said post shall be

processed expeditiously and the UPSC will scrupulously follow the

guidelines as contained in DoPT OM No.22011/5/86-Estt (D) dated

10.04.1989.

9. Mr. Manish Mohan, the learned Central Government Standing

Counsel made a desperate attempt to draw a difference between the

experience certificate issued by the petitioner in favour of Mr. Virendra

Dutt Joshi and the other experience certificates which were issued by the

GREF Officers and the Army Officers in favour of the other candidates

seeking their appointment to the post of Administrative Officer. The

learned CGSC also contended that the experience certificate which was

issued by the petitioner was not a subject matter of writ petitions which

has considered the other experience certificates. Therefore, the petitioner

cannot get any benefit of the said decision. The learned counsel

submitted that at the time of issuing the experience certificate, the

petitioner did not annex the salary slip of the candidate, as from the pay

scale of the candidate one could know whether the candidate was

working in a supervisory capacity or not; that the petitioner in his reply

dated 20.09.2013 to the Memorandum dated 19.03.2012 had himself

admitted that the experience certificate issued by him was of general

nature and not meant for seeking appointment to the post of

'Administrative Officer' Group- A as advertised by BRO in the year

2009; that it was the individual who had surreptitiously appended the

back dated experience certificate of 2007 along with his application for

the post of 'Administrative Officer' in the year 2009, instead of

submitting a fresh experience certificate for the said post.

10. We have heard the learned counsel for the parties at a considerable

length and given our thoughtful consideration to the arguments advanced

by them.

11. When this matter was taken up for preliminary hearing, the Court

would have expected that in such a case the respondents would not have

taken any negative stand insofar as it relates to dropping of minor penalty

proceedings against the petitioner were concerned, especially since the

issue concerning the experience certificates had attained finality. But

instead, time was sought by the respondents to file a counter affidavit to

contest the case. Mr. Sanjay Jain, the learned Additional Solicitor

General, Union of India had also entered appearance on the very first date

but he too took refuge under the legal proposition that no prejudice would

be caused to the petitioner even if the DPC is held and his case for

promotion to the next rank of Director (Administration) shall be kept in a

sealed cover due to the pendency of disciplinary proceedings against him.

12. There is no denying the fact that the respondents have every right

to take legal recourse whenever there is a dispute concerning the legal

position in a particular matter but, the issue that exasperates us, is as to

why is there a need for vexatious contest which is brought regardless of

its merits, with the sole purpose of harassing the litigating adversary. It is

an abuse of judicial process, there should be responsible litigation,

Government is not an ordinary litigant and the endeavour of the

Government and Public Bodies should be to put an end to the

unnecessary and frivolous litigation. The Court's dockets are inundated

by litigation undertaken or contested by the Government and its various

Public Bodies and the Para Military Forces.

13. We will not detain ourselves to draw a fine distinction between the

experience certificate issued by the petitioner in favour of one Mr.

Virendra Dutt Joshi and the experience certificates issued by the Army

officers and the GREF officers in favour of other candidates, as every

individual officer is entitled to give certification in a manner and style

which may not match with the manner and style of another officer. No

specific guidelines or criteria has been laid down in this regard, as to in

what manner the experience certificate was required to be given. Suffice

to mention that the experience certificate given by the petitioner in favour

of Mr. Indresh Kumar was also a Supervisor, Non-Technical Grade-II and

was one of the petitioner in the Writ Petition bearing CWP Nos.

4997/2011, CWP 5457/2011, CWP No. 6403/2011. On comparing the

two, one cannot find any dissimilarity in the experience certificate issued

by the petitioner in favour of the Virendra Dutt Joshi who was also

working on the same post. In the year 2009, the UPSC has published and

circulated an advertisement inviting applications for appointment to the

31 posts of 'Administrative Officer' (Group A Post) in the BRO. One of

the conditions to seek appointment to the said post was for the candidate

to have the requisite experience certificate of a post in a supervisory

capacity. Various candidates who had applied in response to the said

advertisement were working in different capacities with BRO either

under the Army Officers or under the GREF Officers and accordingly the

experience certificates in favour of such candidates were either issued by

the Army Officers or by the GREF Officers. After completing the

selection process, the UPSC had short- listed 38 candidates for their

appointment to the post of 'Administrative Officer' but before these

officers could be appointed, the Office of the BRDB made a request to

the UPSC to reconsider their decision. The three members Screening

Committee constituted by the BRDB vide their report dated 28.02.2011

recommended cancellation of the entire selection process and the prime

reason for the said cancellation was the invalidity of the experience

certificates issued in favour of such candidates by the Army Officers and

by the GREF Officers. Hence, the selected candidates being aggrieved by

the decision taken by the officers of the BRDB, challenged the same

before this Court in W.P.(C) No. 4997/2011 and other writ petitions. In

para 12 of their order dated 10.07.2013, the Division Bench held that the

only factual question which arose before them and was pressed for

adjudication was the validity of the experience certificates issued by the

Army Officers/ GREF officers. In the said order, there is a reference to

the reply given by BRDB in the Parliament to a starred question on the

issue of the validity of experience certificates and the relevant paras of

the judgment are reproduced as under:

"21. The petitioners have also placed before us an additional affidavit dated 29th November, 2012 making detailed assertions about the duties of the petitioners in supervisory capacity and enclosing documents in support along with. In addition, the petitioners have placed on record the following documentary material in support of their contention:-

(i) Starred question in the Parliament as to whether the Border Roads Organization has recruited a large number of Administrative Officers between 1983-96 based on wrong experience certificates as pointed out by BRDB by the letter dated 25th July, 2011? If so, as to how many officers have been recruited during the period and what action has been taken on the issue.

(ii) The reply dated 13th December, 2012 sent by the DGBR to the effect that recruitment in the past by the UPSC must have been done with due diligence as per the rules and regulations in vogue and that the issuance of experience certificates by the employer to the employees for the works done by them is within the ambit

of office procedure and ethics and that in the present case no situation of blame or error has been established at any level of scrutiny.

(iii) A communication dated 6th December, 2012 sent by DGBR referring to the disciplinary action initiated against the GREF officers with regard to the experience certificates (as relied upon by the petitioners) issued by them who stood discharged in the disciplinary proceedings.

23. However, this aspect of the matter does not need to detain us any further. In consonance with response of the respondents to the parliamentary question, the respondents have filed an affidavit dated 1st July, 2013 in WP(C)No.4997/2011 (page 281). The para 4 of this affidavit deserves to be considered in extensor and reads thus:-

"4. That it is submitted that the supervisory experience certificates have been issued by officers of BRO following the practice and precedence hitherto existing in the matter of issuing certificate for the similar posts in the absence of any guidelines on the subject matter." (Emphasis supplied)

24. It is clearly evident from the above that respondents have affirmed the authenticity as well as correctness of the certificates on which the petitioners were placing reliance. It is also clearly stated that such certificates were being issued in due course and as prescribed by the Border Roads Organization.

25. In this background, the issue as to the validity

of the certificates on which the petitioners place reliance and the question as to whether they were performing duties in a supervisory capacity or not finds finally settled and needs no adjudication.

29. The experience certificates relied upon by the petitioners have to be thus considered as valid and proper. No issue at all remains with regard to the experience possessed by the petitioners before this court and as such the service of the petitioners in WP(C)Nos.6403/2011 as well as 5457/2011 are required to be considered as meeting the requirements of the eligibility conditions notified by the UPSC are valid.

14. It can be seen from the aforesaid findings of the Division Bench

that the experience certificates issued by the Army officers/ GREF

officers in favour of the candidates seeking appointment to the post of

'Administrative Officer' were held to be proper, legal and valid in

accordance with the prevailing practice and procedure. The experience

certificates were for the same post as per the specific guidelines on the

subject matter. Accepting the prayer of the petitioners in the said writ

petitions, the Division Bench had quashed and set aside the decision of

the three members Screening Committee which rejected the candidature

of the petitioners therein on the alleged ground of invalid experience

certificates. The decision of the High Court was challenged by the Union

of India in SLPs No. 37734-37736/2013 and vide order dated 06.01.2014,

the said SLPs were dismissed.

15. There is no gainsaying that the issue with regard to the validity and

authenticity of the experience certificates has attained finality with the

dismissal of the SLPs filed by the Union of India but to our utmost shock

and astonishment, respondent Nos.1 to 3 and 5 still wish to wait for the

report of the Vigilance inquiry, as a corollary till then it would deprive

the petitioner for consideration for promotion to the next higher post of

Director (Administration) by adopting the sealed cover procedure.

Necessarily, if the sealed cover procedure is adopted in the case of the

petitioner, then the only other candidate who will be benefited, will be

respondent No.5, since he would be the only other eligible candidate to be

considered for appointment to the said post, because the two other

officers senior to the petitioner have already retired in May, 2014.

Evidently, there is a calculated effort to keep alive the said disciplinary

proceedings against the petitioner, so that in the meanwhile the next

officer in seniority can be appointed to the said post of Director

(Administration) in the forthcoming DPC.

16. It is an oddity that while by one stroke, the Competent Authority

has exonerated all the 30 Army Officers who had issued similar

experience certificates, as can be seen from the communication dated

06.12.2012 signed by one Col. Sandeep Yadav, but as against the

petitioner and other GREF officers, the respondents obliquely wish to

await the report of the Vigilance inquiry. We also fail to comprehend as

to how any vigilance inquiry can be held on an issue which has attained

finality through judicial determination by the highest court of law. Any

step in that direction in fact would be in complete defiance of the orders

passed by the High Court and the Supreme Court. The impugned

Memorandum is arbitrary and without any basis. The conduct and stand

of the respondents is exasperating.

17. In the above circumstances, we hereby quash the Memorandum

dated 19.03.2012 as well as the chargesheet issued against the petitioner

for initiating minor penalty proceedings under Rule 16 of CCS (CCA)

Rules, 1965.

We also impose a cost of Rs.1,00,000/- in favour of the petitioner

and against the respondents for causing him unnecessary harassment and

constraining him to take recourse to legal proceedings and consequent

expenses, for an issue which already stands settled.

The present writ petition is allowed in the above terms.

KAILASH GAMBHIR, J.

NAJMI WAZIRI, J.

SEPTEMBER 12, 2014 rkr/v