Delhi High Court
Pawan Sharma vs North Delhi Municipal ... on 6 December, 2019
$~28.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 6th December, 2019
+ W.P.(C) 7909/2018
PAWAN SHARMA ..... Petitioner
Through: Mr.Atul K.Singh, Adv. along with the
petitioner in person
Versus
NORTH DELHI MUNICIPAL
CORPORATION AND ORS. ..... Respondents
Through: Mr.Mukesh Gupta, Standing Counsel
with Mr.Louis Daniel (HQ) for R-1/North DMC.
Ms.Mini Pushkarna, Standing Counsel with
Ms.Shiva Pandey, Ms.Swagata Bhuyan, Advs. for
R-7/EDMC.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT
: D. N. PATEL, Chief Justice (Oral)
1. This writ petition has been preferred as a public interest litigation with
the following prayers:-
"1. Issue the Writ of Mandamus or any other appropriate writ,
directing the respondents to effectively implement the circular
bearing number A.O/ENGG.(HQ)/NDMC /2015/760 dated
10.02.2015 issued by North Delhi Municipal Corporation.
2. Issue the Writ of mandamus directing the respondents
without any undue delay transfer the officials from one post,
wing, department to another as per the mandatory provision of
10.02.2015.
3. Issue the writ of mandamus, directing the respondents to
initiate departmental enquiry against the officials for
violating/non-compliances of circular dated 10.02.2015."
2. Having heard the learned counsel for the parties and looking to the
facts and circumstances of the case, it appears that the main grievance raised
by the petitioner is the ineffective implementation of the circular dated 10th
February, 2015 issued by the respondents (Annexure -A-1 to the memo of
the writ petition).
3. It is submitted by the learned counsel for the petitioner that charge-
sheeted (RDA) employees are being posted frequently in the Building
Department which has been declared sensitive by Central Vigilance
Commission and few of the officers have been holding their post in the same
department/wing/zone for more than 6-10 years violating the circular dated
10th February, 2015. Learned counsel for the petitioner has also submitted
that while issuing notice vide order dated 31st July, 2018, this Court directed
the respondents to set out a list of transfers affected by them in the last 10
years with dates and also directed the respondents for a separate list of
officers who have been charge-sheeted for disciplinary proceedings and still
continue to work in the same zone/department where they were charge-
sheeted.
4. We have heard the learned counsel appearing for the respondents. It
has been stated in the additional affidavit filed by the respondent/North
Delhi Municipal Corporation that they have already issued transfer-posting
order in respect of 122 Engineers working in the jurisdiction of North Delhi
Municipal Corporation. These facts have been stated at page 550 of the writ
petition. Moreover, a detailed policy decision has been taken by SDMC
bearing Resolution No.183 dated 19th November, 2014. Paragraphs - V, VI
and IX of the said policy decision read as under:-
"(v) It is submitted that as per the policy for the Engineers
(Civil) it has been proposed that in a Block of 10-12 years
tenure of any office, he/she shall be rotated amongst various
wings of Engineering Department with the maximum tenure in
a Wings/Zones as below.
Maximum Tenure of an official in a wing
S.No. Desgn. Bldg. Maint. EMS Project HQ(PC/Plg
Deptt. Deptt. ./Tec.lab/S
W bldg.
1 Jr. 3 5 years 2 years 3 years NIL
Engineer years (Max 3 (Max 2
(Max. yrs in a years in
2 yrs Zone) a zone
in a
zone)
2 Asstt. 2 4 years 2 years 3 years 2 years
Engineers years (Max.2
years in
a zone)
3 Executive 2 4 years 2 years 3 years 2 years
Engineers years (Max 2
years in
a zone)
vi) That it has been, further laid down in the policy that no
officer (JE/VE or EE) against whom an enquiry is pending or
who is under currency of punishment in a Vigilance Case
pertaining to Bldg. Department or that of corruption/moral
turpitude should be posted in the Building Department which
has been considered sensitive by Vigilance Department
xxx xxx xxx
(ix) List of Engineers of SDMC against whom RDA cases
pending since trifurcation to till date is enclosed as Annexure
'R-6/2L It is submitted that none of them are working in the
same place of posting department where they were charge
sheeted. It is further submitted that posting of incumbents in the
Bldg. Department is subject clearance from Vigilance
Department."
5. In view of the aforesaid policy decision, there will be no chance of any
employee continuing on the same post for several years, as a detailed and
comprehensive transfer policy has been floated by the respondents.
Moreover, looking to paragraph (ix) of the aforesaid policy decision of
SDMC, it appears that charge-sheeted employees are not to be posted in the
Building Department.
6. It is further submitted by the learned counsel for East Delhi Municipal
Corporation (EDMC) that the average tenure of Junior Engineers, Assistant
Engineers and Executive Engineers on a particular post has been specified in
the letter of the Administrative Officer, Engineering Department (HQ),
EDMC. A copy of the said letter is tendered to the Court and the same is
taken on record. For ready reference, the aforesaid terms of particular post
of different categories of the Engineers read as under:-
"I. Average duration of JEs in a particular post.
a) Building - 2.06 years
b) Maintenance - 3.14 years
c) EMS - 2.31 years
d) Project - 2.23 years
e) HQ - 1.5 years
II. Average duration of AEs in a particular post.
a) Building - 2.76 years
b) Maintenance - 4.23 years
c) EMS - 1.42 years
d) Project - 3.5 years
e) HQ - 3.64 years
III. Average duration of EEs in a particular post.
a) Building - 2.36 years
b) Maintenance - 3.30 years
c) EMS - 1.87 years
d) Project - 3 years
e) HQ - 2.66 years
IV. SEs are not posted in a particular post. The SEs
supervise the Engg. Sections of Building, Maintenance,
EMS and project in the zones/departments assigned to
them."
7. Similarly, the NDMC have also taken a policy decision dated 6th
February, 2019 pertaining to the transfer which has been narrated
comprehensively in their affidavit. Moreover, as per the said policy
decision, all the transfers are to be placed immediately before the
Commissioner.
8. Thus, in view of the aforesaid steps taken by the respondents, we see
no reason to further monitor this case for transfer and posting of the
concerned officers. Suffice it to say for the respondents that the circular
issued by them which are referred to in the writ petition and/or in the counter
affidavits filed along with status reports shall be scrupulously followed.
9. It ought to be kept in mind that the transfer and posting of officers in
question depends upon public need along with administrative exigencies.
There cannot be a mathematical rule with statistical fine niceties to ensure
that the officers be transferred immediately after their tenure is over. This is
eventually not in the interest of public at large. It depends upon the nature of
work associated with the post, the projects running in the hands of the said
officers and then the final decision is ultimately taken by the high ranking
administrative officers. Hence, it might happen that depending upon the
aforesaid factors, an officer has to continue on the same post for longer
period. It is pertinent to mention that every rule is known by its exception.
10. Much has been argued out by the learned counsel for the petitioner
regarding charge-sheeted employees posted in the Building Department.
However, it appears that such posting of officers, whether charge sheeted or
not, depends upon public need along with administrative exigencies. It
ought to be kept in mind that charge-sheeted employees are also required to
be posted at some department as no salary can be paid to them without
giving any work. Moreover, If there is no suspension order against an
employee, he can always be given posting depending upon the following
factors:-
(a) Nature of the post
(b) Qualification of the said employee
(c) Projects which are to be completed speedily and within time
bound schedule
(d) Nature of charges and the allegations against such employee;
and also
(e) Looking to the past service record of the said employee, etc.
11. The aforesaid list is not exhaustive. The policy decision to be taken
by high ranking administrative officers to post a charge-sheeted employee is
a complex administrative decision based upon the permutation and
combination of the aforesaid and such other relevant factors. It ought to be
kept in mind that always charge-sheeted employees cannot be treated at par
with suspended employees. Therefore, such type of employees are bound to
be posted but that will depend upon the aforesaid aspects of the matter.
12. With the aforesaid observations, this writ petition is hereby disposed
of.
CHIEF JUSTICE
C.HARI SHANKAR, J
DECEMBER 06, 2019
'anb'
