Delhi High Court
North Delhi Municipal ... vs Rakesh Ahuja on 28 July, 2016
$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 10656/2015
% Judgment dated 28 th July, 2016
NORTH DELHI MUNICIPAL CORPORATION ..... Petitioner
Through: Ms.Minipushkarna, Standing counsel
for NDMC
versus
RAKESH AHUJA ..... Respondent
Through: Ms.Rashmi Chopra and Ms.Asiya,
Advocates
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE I.S.MEHTA
G.S.SISTANI, J (ORAL)
1. Challenge in this writ petition is to the order dated 30th October, 2015,
passed by the Central Administrative Tribunal (in short „the Tribunal').
2. The brief facts of the case are that the respondent joined the petitioner as
a Junior Engineer (civil) on 30th November, 1988. In the year, 2005, the
CBI registered an FIR against some officials of the Municipal
Corporation including the respondent with respect to the supply of
inferior retro reflective road sign boards. A challan was filed by the CBI
on 9th December, 2005. Meanwhile, on 2nd July, 2009, the respondent
was considered for ad hoc promotion to the post of Assistant Engineer
(Civil) in the Department Screening Committee where he was assessed
as 'unfit' for ad hoc promotion. In the year 2014, the respondent
approached the Tribunal by filing an O.A seeking a prayer of ad hoc
promotion. By an order dated 20th February, 2015, the tribunal directed
the petitioner herein to consider the respondent for ad hoc promotion as
Assistant Engineer (Civil) disregarding proceedings pending against
him.
3. In pursuance of the order dated 20th February, 2015, on 1st June, 2015,
the respondent was considered by the Departmental Screening
Committee and assessed as 'unfit'. This has led to filing of a contempt
petition wherein an order was passed on 22nd September, 2015.
Thereafter on 30th September, 2015, the tribunal directed the petitioner to
grant ad hoc promotion to the respondent which has led to the filing of
the present writ petition.
4. Learned counsel for the petitioner submits that since the DPC was held
on 29th October, 2015, the respondent can now only be considered for ad
hoc promotion after two years, i.e., in the year 2017. Learned counsel
further submits that the tribunal has exceeded its jurisdiction and failed
to take into consideration that in two DPCs', the respondent was
declared 'unfit'.
5. Per contra, counsel for the respondent submits that the petitioners were
to be guided by the Office Memorandum dated 14th September, 1992.
As per Clause 5 of this Office Memorandum, if a disciplinary
case/criminal prosecution is not concluded even after the expiry of two
years from the date of the meeting of the first DPC which kept its finding
in a sealed cover, in such a situation, the Appointing Authority may
review the case of the Government servant to consider the desirability of
giving ad hoc promotion based on five factors which are to be
considered. Clause 5 of the Office Memorandum reads as under:
"5 In spite of the six monthly review referred to in para 4
above, there may be some cases, where the disciplinary
case/criminal prosecution against the Government servant is not
concluded even after the expiry of two years from the date of the
meeting of the first DPC, which kept its findings in respect of the
Government servant in a sealed cover. In such a situation the
appointing authority may review the case of the government
servant, provided he is not under suspension, to consider the
desirability of giving him ad-hoc promotion keeping in view the
following aspect:-
a) Whether the promotion of the officer will be against
public interest;
b) Whether the charges are grave enough to warrant
continued denial of promotion;
c) Whether there is any likelihood of the case coming to a
conclusion in the near future;
d) Whether the delay in the finalization of proceedings,
departmental or in a court of law, is not directly or
indirectly attributable to the Government servant
concerned; and
e) Whether there is any likelihood of misuse of official
position which the Government servant may occupy after
ad-hoc promotion, which may adversely affect the conduct
of the departmental case/criminal prosecution.
The appointing authority should also consult the Central Bureau
of Investigation and take their views into account whether the
department proceedings or criminal prosecution arose out of the
investigations conducted by the Bureau."
6. Ms.Chopra, learned counsel for the respondent, submits that despite
filing of the contempt petition, the respondent failed to take note of
Clause 5 of the Office Memorandum and did not consider the case of the
respondent for ad hoc promotion.
7. We have heard learned counsel for the parties and also considered their
rival submissions. Before the rival submission of the learned counsel for
the parties can be considered, we may notice that the OA filed by the
respondent herein was disposed of by an order dated 20.02.2015 passed
by the tribunal. The tribunal while passing the impugned order took note
of Clause 5 of the Office Memorandum and, thereafter, allowed the
application thereby directing the petitioner herein to consider the
respondent for ad hoc promotion. Since the direction passed was not
followed, this has led to the passing of the order dated 22 nd September,
2015, in contempt proceedings, which reads as under:-
"Learned counsel for respondent Nos. 1 and 3 submitted that
order passed by the Tribunal is to be implemented by
respondent No.2.
As prayed by learned proxy counsel for respondent No.2,
three weeks‟time is granted for filing compliance report,
failing which respondent No.2 will remain present in the
Court.
List on 30.10.2015.
A copy of this Order be given to learned counsel for
respondent No.2 as dasti."
8. On 30th October, 2015, the following order was passed, which reads as
under:
"Learned counsel for respondent No.2- North DMC submitted
that the applicant was considered for ad hoc promotion to the
post of Assistant Engineer (Civil) twice, i.e., by the
Departmental Screening Committee (DSC) dated 01.06.2015
and 29.10.2015. According to him, the DSC met on
01.06.2015 found the applicant unfit and the recommendation
of the DSC met on 29.10.2015 has been kept in sealed cover.
It is made clear that the direction for ad hoc promotion of
the applicant was given for the reason that the disciplinary/
criminal cases were pending against him for more than two
years and the recommendation regarding ad hoc promotion
cannot be kept in sealed cover and the respondents should
open the sealed cover and implement the recommendation of
DSC, which met on 29.10.2015, before the next date of
hearing."
9. We find no infirmity in the direction issued to the petitioner by the
Tribunal for the reason that para 5 and 5.1 of the Office Memorandum
dated 14.09.1992 makes abundantly clear that "whereby the
recommendations regarding the promotion of a government servant
under suspension; in respect of whom a charge sheet has been issued
and the disciplinary proceedings are pending; and government servant
in respect of whom prosecution for criminal charge is pending are
required to be kept in sealed cover, it has been specifically provided that
where the disciplinary case/criminal; prosecution is pending for over
two years, he should be given ad hoc promotion".
10. Resultantly, the present petition must fail. At this stage, Ms.Pushkarna
submits that it may be clarified that it would be open for the petitioner to
take into account Clause 5(a)(e) of the Office Memorandum, extracted in
para 4 above. In our view, this requires no clarification. We direct the
petitioner to consider the respondent for ad hoc promotion based on
Clause 5 and 5.1 of the Office Memorandum dated 14.9.1992.
11. Present petition stands dismissed.
G.S.SISTANI, J
I.S.MEHTA, J
JULY 28, 2016 sv
