Punjab-Haryana High Court
V.K. Arora vs Union Of India And Others on 4 April, 2011
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No. 7716-CAT of 1997 (O&M)
Date of Decision: April 4, 2011
V.K. Arora
......Petitioner
Versus
Union of India and others
......Respondents
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE T.P.S. MANN
MANN
Present: Mr. Rohit Seth, Advocate,
for the petitioner.
Mr. K.K. Gupta, Advocate,
for the respondent - UT Chandigarh.
1. To be referred to the Reporter or not?
2. Whether the judgment should be reported in the Digest?
M.M. KUMAR, J.
1. The instant petition filed under Article 226 of the Constitution challenges order dated 22.4.1997 (P-15) passed by the Chandigarh Bench of the Central Administrative Tribunal (for brevity, 'the Tribunal') rejecting his claim for promotion to the rank of Superintending Engineer by upholding the order dated 16.8.1996 (P-14). A further prayer has been made for directing respondent Nos. 1 and 2 to consider and promote the petitioner to the post of Superintending Engineer, Public Health in the Engineering Department, U.T. Chandigarh, in accordance with the provisions of the Punjab Service of Engineers, Class-I, P.W.D. Public Health Branch, Rules, 1961 (for brevity, 'the 1961 Rules') read with the CWP No. 7716- 7716-CAT of 1997 (O&M) 2 rules known as 'the Conditions of Service of Union Territory of Chandigarh Employees Rules, 1992' (for brevity, 'the 1992 Rules') and instructions dated 17.9.1956 and 28.6.1961 (P-5 and P-6).
2. The facts in brief are that the applicant-petitioner joined the U.T. Chandigarh Administration as an Assistant Engineer on 1.8.1978. On 18.2.1988 he was promoted as an Executive Engineer on ad hoc basis, which is a Class-I post. On 4.9.1990, he was regularised on the post of Executive Engineer. His name was forwarded to the Departmental Promotion Committee for consideration to the next promotional post of Superintending Engineer (Public Health) in the Engineering Department, U.T. Chandigarh. On 16.8.1996, the applicant-petitioner was informed that the DPC after examining his character rolls adjudged him as 'Good' and did not recommend his name for promotion because he was required to obtain the prescribed bench mark of 'Very Good'.
3. Feeling aggrieved the petitioner approached the Tribunal by asserting that with effect from 1.4.1991, the Chandigarh Administration has adopted the Punjab Pay Scales as well as conditions of service as prevalent in the State of Punjab, for its employees. Therefore, for all intents and purposes including promotion the case of the applicant-petitioner has to be considered as per the provisions of the 1961 Rules. The applicant-petitioner alleged that the DPC has erred in applying the bench-mark of 'Very Good' instead of 'Good', which is applicable to the corresponding posts in the State of Punjab. In that regard he has placed reliance on the instructions dated 17.9.1956 and 28.6.1961 (A-11 & A-12) issued by the State of Punjab. However, the DPC which was chaired CWP No. 7716- 7716-CAT of 1997 (O&M) 3 by the Member of the Union Public Service Commission relied upon the guidelines/instructions issued by the Government of India prescribing the bench-mark of 'Very Good'. The Tribunal in para 6 of its order has recorded the following conclusions while dismissing the original application filed by the applicant-petitioner:-
"6. The short point for determination before us is that whether the Departmental Promotion Committee chaired by a Member of the Union Public Service Commission erred in adopting the Central Government guidelines instead of following the circulars of the Punjab Government in this case for promotion from the rank of Executive Engineer to Superintending Engineer. There is no dispute that the terms and conditions of service ofthe applicant, who is an employee of the Chandigarh Administration, are the same as of a corresponding post in Punjab. However, we are unable to agree that guidelines for promotion and the bench-mark for promotion to be adopted in any particular case will also be governed by the circulars issued by the Punjab Government. The "Commission" mentioned in the Rule 2(6) means the Punjab Public Service Commission and when these Rules are applied to the employees of the Union Territory of Chandigarh, the Commission means the Union Public Service Commission. We are, therefore, of the view that the procedure to be adopted and the bench-mark to be fixed for any post is largely for the Commission, and the Departmental Promotion CWP No. 7716- 7716-CAT of 1997 (O&M) 4 Committee to decide and in this case, the Union Public Service Commission adopted the bench-mark of Very Good. The applicant cannot insist that the Union Public Service Commission should adopt and follow the circulars of the Punjab Government when conducting the proceedings of a D.P.C. for a post in Chandigarh Administration. It is for the Union Public Service Commission and the D.P.C. to adopt the bench-mark which is consistent with the requirement of suitability of a particular post at higher level and in the interest of efficiency in public administration."
4. While rejecting the claim made in the OA, the Tribunal also directed the Chandigarh Administration to forward names of all the Executive Engineers who became eligible for promotion to the post of Superintending Engineer (Public Health) as per the requirement of letter dated 16.8.1996. Challenging the order dated 22.4.1997 (P-15) the applicant-petitioner filed the instant petition.
5. On 13.7.2010, while hearing the instant petition it came to the notice of the Division Bench that the name of the applicant- petitioner was considered by the Departmental Promotion Committee (DPC) on 28.11.2005 along with two other officers. His name was put in a sealed cover because two vigilance inquiries/cases were pending against. He was facing charge of delayed payment to some contractor. Mr. K.K. Gupta, learned counsel for the Chandigarh Administration also apprised the Court that the applicant-petitioner was exonerated in the said vigilance cases, vide orders dated 22.10.2007 and 16.12.2008 (Mark 'A' and CWP No. 7716- 7716-CAT of 1997 (O&M) 5 Mark 'B' respectively). When the sealed cover was opened on 27.8.2009, the assessment of the DPC was revealed, which is to the following effect:-
"Having examined the character roll of Shri V.K. Arora, against whom a vigilance case is pending, the Departmental Promotion Committee assessed him as "UNFIT" for promotion to the post of Superintending Engineer in the Public Health Engineering Department, Chandigarh Administration for the year 2004-05."
6. Thus, it was an admitted position that there was no fresh assessment or any review DPC in view of the fact that the applicant-petitioner has been exonerated in both the vigilance cases and the adverse comment with regard to pendency of vigilance cases appears to have affected the consideration of the DPC held on 28.11.2005. In view the fact that the applicant- petitioner has been exonerated vide orders dated 22.10.2007 and 16.12.2008 (Mark 'A' and 'B') it was incumbent to hold review DPC after removing the prejudicial expression that 'a vigilance case is pending'. Accordingly, the Division Bench directed the official respondents to consider the case of the applicant-petitioner within six months without being influenced by the pendency of vigilance cases, in a review DPC.
7. On 25.1.2011, the respondent UT Chandigarh took the stand that in the review DPC, the applicant-petitioner has failed to make mark as out of five reports he has obtained three 'Very Good' and his two reports were 'Good' as against the requirement of four being 'Very Good'. It was further stated that in the fresh DPC, he CWP No. 7716- 7716-CAT of 1997 (O&M) 6 was likely to achieve the benchmark and promoted. Since it was unpalatable that in the fresh DPC why the name of the applicant- petitioner, who was going to superannuate on 31.1.2011, was not considered especially when the vacancy of the post of Superintending Engineer pertains to 21.8.2009. In these circumstances, we directed the respondents to hold a fresh DPC before the date of retirement of the applicant-petitioner and to communicate the same to him.
8. On 17.2.2011, when the matter came up for consideration, learned counsel for the respondents stated that the case of the applicant-petitioner was recommended for promotion by the Union Public Service Commission vide letter dated 15.2.2011. Despite that some more time was consumed on the ground of completion of procedural formalities.
9. At the resumed hearing today, Shri Abhishek Dev, I.A.S., Joint Secretary Personnel, U.T. Administration Chandigarh, came present in person in pursuance to our order dated 8.3.2011 and apprised the Court through Mr. K.K. Gupta, learned counsel that necessary approval for promotion of the applicant-petitioner from the date of occurrence of vacancy i.e. 21.8.2009, on the post of Superintending Engineer, Public Health Department on notional basis has been accorded by the Administrator and in that regard a telephonic message has been received from the Home Secretary, Chandigarh.
10. In view of the aforesaid statement, Mr. Rohit Seth, learned counsel for the petitioner states that the instant petition has been rendered infructuous and may be disposed of as such. CWP No. 7716- 7716-CAT of 1997 (O&M) 7 However, he has submitted that the retiral benefit of the applicant- petitioner may be calculated on the basis of his promotion to the post of Superintending Engineer, Public Health Department, together with all consequential benefits on notional basis within a period of three months from the date of receipt of a copy of this order.
11. In view of above, the instant petition has been rendered infructuous and is disposed of as such. However, the U.T. Administration-respondents shall remain bound by the statement made by them in the Court.
(M.M. KUMAR)
JUDGE
(T.P.S. MANN)
April 4,
4, 2011 JUDGE
Atul/Pkapoor