Rajeev Chandra vs Border Roads Organization And ...
2022 Latest Caselaw 1702 P&H

CWP No. 3348 of 2021 ( O& M)                                                 -1-


              IN THE HIGH COURT OF PUNJAB AND HARYANA
                          AT CHANDIGARH
239
                                        *****
                                                  CWP No. 3348 of 2021 (O & M)
                                                    Date of decision : 16.3.2022


Rajeev Chandra                                                       ......Petitioner
                                           Vs.
Border Roads Organization and others                               ......Respondents


CORAM: HON'BLE MR. JUSTICE RAJBIR SEHRAWAT



Present :     Mr. S.A. Khemka, Advocate, for the petitioner/applicant
              Mr. Namit Kumar, Advocate, for respondents No.1 to 3
              ---
Rajbir Sehrawat, J. (Oral)

This is a petition filed under Article 226 of the Constitution of

India seeking issuance of a writ of mandamus, directing the respondents to

restore the lost seniority of the petitioner on account of delayed promotion

from Assistant Executive Engineer (Civil) to Executive Engineer (Civil) along

with consequential benefits and interest @ 12% per annum. Order dated

27.3.2017 (Annexure P-9) is also challenged in this petition.

It is submitted by counsel for the petitioner that the petitioner was

working on the post of Assistant Executive Engineer (Civil) with the

respondent organization. Under the rules, the next promotion from the post of

Assistant Executive Engineer (Civil) is to the post of Executive Engineer

(Civil). Since the petitioner was having all other favourable records, therefore,

he was required to be considered for the vacancy of the year 2010-11.

Although, the petitioner was, considered for the vacancy of the year 2010-11

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on17.6.2011 but was not promoted only on the ground that on 23.7.2009 he

had been awarded a punishment of 'censure'. Through these proceedings of the

Departmental Promotion Committee (for short the 'DPC'), the persons who

were otherwise admittedly junior to the petitioner, were promoted by the

respondents against the vacancies of the year 2010-11. Once again, the

respondent department conducted the proceedings of selection for vacancies of

the year 2011-12. This time, the DPC considered the case of the petitioner and

found him eligible for promotion. Accordingly, the petitioner was promoted as

Executive Engineer (Civil) vide order dated 5.10.2011. Accordingly, it is

submitted by counsel for the petitioner that the petitioner was wrongly ignored

in the DPC for the vacancies of the year 2010-11. There is no provision in the

rules applicable to the post or under any Instructions governing the promotion

to the post of Executive Engineer (Civil), under which the respondents could

have denied the promotion to the petitioner on the ground of existence of a

punishment of 'censure' against the petitioner. Referring to the clarification

dated 21.11.2016 (Annexure P-7), issued by the Government of India, the

counsel for the petitioner has submitted that the Government of India itself had

clarified that an employee can be promoted notwithstanding the existence of

the punishment of 'censure'. Even before this clarification, the UPSC had

clarified the procedure adopted by it qua conduct of DPC, wherein it was said

that 'censure' is not a ground to deny the promotion; as such. Even if there

exists a punishment of 'censure' against a person, the matter has to be

considered individually on case to case basis after taking into consideration the

charge sheet and background material etc. Hence, it is submitted by counsel

for the petitioner that despite the existence of the punishment of 'censure', the

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petitioner was entitled to be promoted to the post of Executive Engineer

(Civil). Counsel has further submitted that criteria for promotion is 'seniority-

cum-merit'. Therefore, it is the seniority which would be the prevalent factor

unless the petitioner is otherwise found not crossing the threshold of merit.

Mere existence of a punishment of 'censure' can neither be interpreted to be a

disqualification, nor has the same been prescribed as such under any rule or

regulations, applicable to the department. Counsel has relied upon the

judgment rendered by a Division Bench of Madras High Court in 'The

Secretary to Government and another v. R. Murugesan; 2010 SCC Online

Mad 4285', judgments rendered by the Rajasthan High Court in 'Rajendra

Singh Rao v. State of Rajasthan & others; 2010 SCC Online Raj 4065' and

'Ram Khilari Meena v. State of Rajasthan and others; 2010 SCC Online

Raj 4690' to buttress his arguments. Accordingly, it is prayed by the counsel

that the present petition be allowed. The respondents be directed to rectify the

mistake by granting the promotion to the petitioner from the date his juniors

were promoted. Further, the consequential steps qua correction of the seniority

list be also ordered to be taken.

On the other hand, counsel for the respondents has submitted that

undisputedly, the process of promotion had been completed way-back in the

year 2011. The petitioner was even promoted in the year 2011 in the second

DCP against the vacancies of the year 2011-12. Despite that, the petitioner has

filed the present petition only in the year 2021. Even the representations

raising his grievance filed by the petitioner, stood rejected in the year 2012 and

in 2017. Hence, the present petition is hopelessly, suffering from delay and

latches. The same deserves to be dismissed on this ground alone.

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 CWP No. 3348 of 2021 ( O& M)                                                 -4-

The counsel has relied upon the judgment rendered in 'Union of

India & others v. Durairaj (Dead) by LRs.; 2011 (1) SCT 822, 'State of

Uttar Pradesh & others v. Arvind Kumar Srivastava & others; 2006 (2)

SCT 417', 'Karnataka Power Corporation Ltd. Through its Chairman &

Managing Director and another v. K. Thangappan and another; 2006 (2)

SCT 417' and 'Shyam Lal Gupta and others v. State of Punjab and others;

1998 (1) SCT 670'. Counsel has further submitted that even in the present

petition the petitioner has not challenged the seniority as such. Not only that;

the petitioner has not even implead the persons who would be affected by any

change in the seniority list, if the request of the petitioner is to be accepted by

this Court. Hence, the petition is bad for non-joinder of necessary parties as

well.

Qua merits, counsel for the respondents has submitted that the

DPC has considered the relevant service record of the petitioner. Therefore,

that has to be taken as a final assessment of the petitioner. The punishment of

'censure' had rightly been taken as ground to deny promotion to the petitioner.

The Court is not even to sit in appeal over the assessment of the Committee.

Hence, the present petition deserves to be dismissed.

Responding to the arguments of counsel for the respondents, the

counsel for the petitioner has submitted that it is not necessary to implead the

perceived affected persons, in case the petitioner is seeking to redress his own

grievance and the changed seniority is only a consequence arising there from.

The counsel has relied upon the judgment rendered in 'Ram Khilari Meena v.

State of Rajasthan and others; 2010 SCC Online Raj 4690'. On the point of

delay and latches, counsel for the petitioner has submitted that the ground of

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delay and latches is not for the respondents to avail. It is a point which could

have been taken into consideration by the Court at the motion stage if at all it

could have been any relevant consideration. But this is not a defence, as such,

in the proceedings if the claim of the petitioner is otherwise found to be

justified under the law. Counsel has also relied upon the judgment rendered in

'Jagdish Kumar v. Municipal Corporation of Delhi; ILR (2002) II Delhi

730' in this regard.

Having heard counsel for the parties, this Court finds substance in

the arguments of counsel for the petitioner. It is not even in dispute that the

petitioner was senior to the other persons, who were promoted through the first

DPC held on 17.6.2011 for the vacancies of the year 2010-11. Admittedly,

there was no other adverse record against the petitioner on the basis of which

the DPC, or for that matter the Appointing Authority, could have denied the

promotion to the petitioner on said date. Although counsel for the respondents

has stressed that as on the date of consideration the Committee had found the

punishment of 'censure' to be a valid ground for denial of the promotion,

however, the respondents have failed to refer to any provision of law either

under the service rules or the Instructions meant for the conduct of proceedings

of DPC; under which the 'censure' could have been taken as a ground for denial

of the promotion to the petitioner. The punishment of 'censure', as such, do not

have any period of currency except in case where the service rule or the

concerned regulations so prescribed. It is a one time punishment. Therefore,

the punishment of 'censure' as such, cannot be made any ground for denial of

the promotion. This conclusion is fortified by two facts. Firstly, that in the

same year in November 2011, the respondents themselves promoted the

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petitioner against the vacancies of the year 2011-12, secondly, the Government

of India itself has clarified by issuing Clarification which reads as under :

"2. Questions have been raised by the Ministries and Departments asking whether this is applicable in the case of 'Censure' also. In this regard, it is reiterated that paragraphs 7 (d), 7 (f) and 7 (g) cited above are applicable in all the recognized penalties under CCS (CCA) Rules including the minor penalty of Censure as well for which no currency has been prescribed, it would mean that as per para 7 (g), if the DPC considers the officer fit for promotion notwithstanding the award of 'censure', he/she can be promoted without referring to the currency of penalty."

A perusal of the above said clarification leaves no doubt that

notwithstanding the punishment of 'censure', the person is to be considered for

promotion and to be promoted if there is no other material adverse to him.

Although this clarification has come after the date of consideration of the

promotion of the petitioner in the year 2011, however, since this is only a

clarification of the existing law, therefore, the same has to be taken as relating

back to the date of original instruction and therefore, can be taken as a relevant

factor while deciding the dispute involved in the present case. Even as per the

guidelines of UPSC; referred to by the respondents, the punishment of 'censure'

per se, is not a ground for declining promotion to a person. It has to be a

consideration coupled with and cumulatively with other records of the

petitioner, by having particular reference to the charge-sheet involved in the

matter where this 'censure' has emerged, as well as, the background of the

person. This is not even the case of the respondents that any such

consideration qua the charge or any other background of the petitioner was

ever the deciding factor for the DPC while denying promotion to the petitioner.

As per the record and pleadings taken by the respondents in the written

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statement, it is obvious that the petitioner was denied promotion only for the

reason that he was having punishment of 'censure'. The fact that background

was not adverse is shown by the fact that the respondents themselves had

promoted the petitioner subsequently in the same year. Accordingly, this Court

finds the reliance of the counsel for the petitioner upon judgment in R.

Murugesan' case (supra) and the other cases to be well placed.

Counsel for the respondents has highlighted the fact that the

petitioner has not even challenged the seniority list as such. However, this is

not even factually correct. The petitioner has made a due prayer for correction

of the seniority list after granting the promotion to him. Therefore, it cannot be

said that the petitioner has not questioned the factum of fixation of the

seniority after the promotion of the petitioner and his juniors. Moreover, the

seniority of the promotional cadre is a consequence of the fact of promotion.

Therefore, the said factor cannot be permitted to stand in the way of the claim

of the petitioner which relates to promotion from the feeder cadre to the

promotional cadre. If the petitioner is otherwise successful in establishing his

claim qua promotion, then the seniority has to be only the necessary statutory

consequence. Therefore, this argument of counsel for the respondents is not

sustainable in the eyes of law.

Counsel for the respondents has also raised another objection that

the present petition is suffering from extreme delay and latches. However, on

this aspect also, this Court is of the considered opinion that the said aspect

cannot be pleaded against the petitioner. It is the mistake, deliberate or

otherwise, of the respondents only. The respondents cannot be permitted to

raise the plea of delay and latches because that would tantamount to giving

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premium to the respondents upon their own fault. Otherwise also, the issue of

delay and latches is for the Court to consider and is not a defence for the

respondents themselves, unless the delay had already resulted in other

consequences which cannot be remedied without further complications or

which creates unforeseen complications; as such. However, in the present case,

there is no further consequence of promotion of the petitioner from the date his

juniors are promoted and correction of the consequent seniority. The petitioner

and the other junior persons who were promoted by superseding the petitioner,

all are still in the promotional cadre of Executive Engineer (Civil). Therefore,

there is no further consequence of correction of the seniority list as such. The

employees who earlier superseded the petitioner have no vested right to claim

the seniority, as such, in ignorance or in violation of the right of the petitioner

to get his seniority fixed after getting his promotion from the due date.

Moreover, the aspect of delay in raising dispute cannot be permitted to damage

even the future prospectus of the petitioner. If the Court does not interfere to

protect the petitioner at this stage, then the petitioner would again be suffering

prejudice for the purpose of next promotion. This would be a treversity of

justice and would tantamount to denial of right to equity to the petitioner. In

view of these facts, this Court does not find that anyone of the judgments being

relied upon by counsel for the respondents rendered in Durairaj case (supra),

Arvind Kumar Srivastava's case (supra), K. Thangappan (supra) and

Shyam Lal Gupta;s case (supra), to be of any help. Rather, the reliance of

counsel for the petitioner upon the judgments rendered in 'R. Murugesan's

case (supra), Rajendra Singh Rao's case (supra), Ram Khilari Meena's case

(supra) and Jagdish Kumar's case (supra), are found to be relevant to the case

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of the petitioner.

So far as the non-joinder of the alleged persons affected and its

effect upon the present petition is concerned, this Court does not find any

substance in the argument of counsel for the respondents even on that aspect.

The petitioner, as such, is not claiming anything against the persons who earlier

superseded him. The petitioner is before the Court only to enforce his statutory

right of consideration, in accordance with law. If he succeeds in his attempt,

that would only remedy the wrong done earlier to the petitioner. Any effect

upon anyone else, is only a consequence of this reversal of wrong doing qua

the petitioner. Therefore, the persons who earlier superseded the petitioner are

not even the necessary party; keeping in view the particular facts and

circumstances of the case. Needless to say, that none of those persons would

be in a position to say anything except what the official respondents have

pleaded qua superseding the petitioner in the first DPC. Furthermore, there is

no estoppel against a statute. Whatever rights the petitioner had under the

statutory provisions, have to be granted to him irrespective of any perceived

objection of any other persons. The petitioner is not praying for withdrawing

of the promotion from either of those persons or for change of their own

seniority. The petitioner is concerned only with his promotion and his

consequent seniority as per the rules. Hence, this argument of counsel for the

petitioner is also liable to be noted only to be rejected. Although the counsel

for respondents has submitted that the rights of the persons earlier promoted to

get further promotion shall be adversely affected if the petitioner is made

senior now, however, even this aspect is totally irrelevant. The promotion is

not a condition of service. No one has a right to get promotion. Right is only

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to be considered for promotion as per the rules. Rules are the same for

petitioner and for other persons, and the same has to be applied to all equally.

In view of the above, the respondents are directed to grant

promotion to the petitioner from the date his juniors were promoted and to

restore the consequent seniority in favour of the petitioner.

Let the necessary exercise be carried out within a period of three

months from the date of receipt of certified copy of this order.

Disposed of.

Pending application, if any, also stands disposed of accordingly.

                                                       (RAJBIR SEHRAWAT)
                                                             JUDGE
16.3.2022
Ashwani



              Speaking/Reasoned           :       Yes/No
              Reportable                  :       Yes/No




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