Delhi High Court
Sohan Pal Singh Sharma vs Dda And Anr on 17 March, 2021
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3078/2021
SOHAN PAL SINGH SHARMA ..... Petitioner
Through: Ms. Ritu Jain, Adv.
Versus
DELHI DEVELOPMENT AUTHORITY AND ANR .... Respondents
Through: Mr. Arun Birbal and Mr. Sanjay
Singh, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MR. JUSTICE AMIT BANSAL
ORDER
% 17.03.2021
CMs No.9331/2021 & 9332/2021 (both for exemption)
1. Allowed, subject to just exceptions and as per extant rules.
2. The applications are disposed of.
W.P.(C) No.3078/2021 & CM No.9330/2021 (for stay)
3. The petition impugns the order dated 10th February, 2021 of the
Central Administrative Tribunal (CAT), Principal Bench, New Delhi, of
dismissal of OA No.157/2021 preferred by the petitioner.
4. The petitioner preferred the OA aforesaid, impugning the order dated
18th January, 2021 of withdrawal of promotion dated 6 th November, 2012 to
the post of Assistant Section Officer and promotion dated 20 th December,
2017 to the post of Assistant Director (Ministerial) as well as of Second
Modified Assured Career Progression (MACP) granted with effect from 16 th
November, 2008 on 28th April, 2011 and reverting the petitioner to the post
of Senior Secretariat Assistant.
5. We have heard the counsel for the petitioner.
6. Pursuant to the Departmental Promotion Committee (DPC) held on 6 th
November, 2012, the petitioner was promoted to the post of Assistant
Section Officer and subsequently on 20th December, 2017 to the post of
Assistant Director (Ministerial). It was subsequently realised, that on 26th
December, 2007, sanction for prosecution of the petitioner had been granted
and which fact remained to be considered at the time of promotion of the
petitioner and/or at the time of grant of MACP to the petitioner.
Accordingly, show cause notice dated 11th November, 2020 was issued to
the petitioner and vide impugned order dated 18 th January, 2021, the benefit
of promotions and MACP, withdrawn.
7. The counsel for the petitioner, during the hearing, has informed that
the petitioner has superannuated on 28th February, 2021.
8. The counsel for the petitioner has argued, that the respondents were
well aware of the sanction for prosecution and of the prosecution pending
against the petitioner and thus, the benefits granted of promotions and
MACP could not have been withdrawn on the ground of having been
granted in ignorance of the pending prosecution.
9. On enquiry, it is stated that there is no bar to the promotion or grant of
MACP during the pendency of prosecution. However, instead of showing
any dicta in support thereof, attention is drawn to the dicta of the Supreme
Court in Union of India Vs. K.V. Jankiraman (1991) 4 SCC 109 and on the
dicta of the Division Bench of this Court in Ashok Kumar Singh Vs. Union
of India MANU/DE/1023/2001.
10. We have perused both the aforesaid judgments along with the counsel
for the petitioner but rather than finding the same to be in favour of the
petitioner, find the same to be against the petitioner. The first of the
aforesaid judgments clearly lays down that when a prosecution or a
departmental inquiry is pending against an employee, sealed cover
procedure has to be followed and if promotion is recommended, the same
takes effect only on discharge or acquittal of the employee from the charge
and/or from the prosecution. As far as the latter of the two judgments is
concerned, the same turns on its own facts.
11. The counsel for the petitioner has next contended that the prosecution
was launched at the fag end of the long career of the petitioner and is mala
fide and intended to only deprive the petitioner of the benefits of promotion
and from reaping the benefits of MACP.
12. However that is beyond the domain of the proceedings before CAT,
from which this petition arises.
13. In the present case, it is not as if the petitioner was reverted without
following the procedure as aforesaid. Show Cause Notice was issued to the
petitioner and after consideration of the response of the petitioner, the order
of withdrawal of promotions and MACP has been passed.
14. Once promotion/grant of MACP during the pendency of prosecution
is barred, the grant thereof to the petitioner has to be held to be erroneous
and which error can be corrected at any time and no rights can arise in
favour of the petitioner therefrom. In both, Bhajan Singh Vs. State of
Uttarakhand (2013) 14 SCC 32, (relied upon in impugned order also) and
Government of NCT of Delhi Vs. V. K. Bhardwaj MANU/DE/0309/2016,
even on subsequent finding of promotion having been granted during
pendency of prosecution, promotion granted was reverted.
15. There is no merit in the petition.
16. Dismissed.
17. At this stage the counsel for the petitioner has contended that the
petitioner has already earned the pension of having worked at the promoted
post.
18. However, if the petitioner was not entitled to the said promotion, the
question of the petitioner having earned the pension commensurate to
promoted post does not arise. Even now, if the petitioner is acquitted in the
prosecution, he will avail of all the benefits and if is convicted, then again,
no benefit can be claimed from what the petitioner was/is not entitled to in
law.
RAJIV SAHAI ENDLAW, J.
AMIT BANSAL, J.
MARCH 17, 2021
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