Central Administrative Tribunal - Delhi
Sh. Pawan Kumar Sharma vs The Municipal Corporation Of Delhi on 13 October, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA 1550/2009
New Delhi this the 13th day of October, 2009.
Honble Mr. Justice M. Ramachandran, Vice Chairman (J)
Honble Mr. Shailendra Pandey, Member (A)
Sh. Pawan Kumar Sharma, AE (Officiating),
Executive (M-II),
Shahdra (North), MCD,
Delhi. Applicant.
(By Advocate Shri M.K. Bhardwaj)
Versus
The Municipal Corporation of Delhi, through:
1. The Commissioner,
MCD,
Town Hall, Chandni Chowk,
Delhi-110006.
2. The Director Personnel,
MCD,
Town Hall, Chandni Chowk,
Delhi-110006.
3. The Administrative Officer,
MCD,
Town Hall, Chandni Chowk,
Delhi-110006. Respondents.
(By Advocate Shri Praveen Swarup)
O R D E R
M. Ramachandran, Vice Chairman (J).
The applicant is a Junior Engineer in the Municipal Corporation of Delhi, officiating as Assistant Engineer. He has found that several of his juniors have overtaken him during the years 2007-2009, when regular promotions were made from the category of Junior Engineers to Assistant Engineers. He has been advised that a pending criminal case stands in the way of his regular promotion. The contention of the applicant appears to be that in view of the law laid down by the Supreme Court on the subject, the specific claims for promotion as might be admissible to him have not been duly appreciated. It was in these circumstances that he had thought of coming with an Original Application which has been filed during May, 2009.
2. The respondents have filed a counter reply and the objections raised therein are attempted to be met with a rejoinder. Mr. Bhardwaj has made submissions on behalf of the applicant and also has presented notes of arguments. Mr. Praveen Swarup appeared on behalf of the respondents.
3. In matters of promotion concerning officers who are under cloud Government instructions issued from time to time require to be followed. O.M. dated 12.01.1988 dealt with the matter in detail, but in view of the observations made by the Honble Supreme Court in Union of India Vs. K.V. Jankiraman (AIR 1991 SC 2010), revised O.M. had been issued on 14.09.1992 and the guidelines were streamlined, so as to ensure that unless there are compelling circumstances, promotional avenues of officers are not barred. Learned counsel for the applicant submits that the case of the applicant has to be examined with reference to the letter and spirit of the above Office Memorandum. On the other hand, general contentions raised by the respondents are to the effect that even if a relaxed standard is employed, there has been no case made out for interference. Now we may examine the factual position.
4. It is essential that certain dates are to be specifically noticed before proceeding further. The applicant had commenced service in the year 1983. He is officiating in the post of Assistant Engineer from 2003 onwards. On 01.02.2005, CBI had registered an FIR against the applicant, alleging that the applicant had failed in the discharge of his duties in the issue of accepting retro reflective sign boards supplied by the contractor. For years together, nothing thereafter happened. The applicant submits that regular vacancies in the cadre of Assistant Engineers had forth come and a DPC had been constituted on 14.06.2007, to assess the fitness of the candidates. The applicant was also within the zone of consideration. Notwithstanding that there was no charge submitted in the criminal case, the applicant had not been conferred with promotion whereas his juniors have been promoted on 16.07.2007. A DPC had again been held on 02.08.2007, but to the knowledge of the applicant, his name was not considered. The applicant avers that the DPC held on 14.06.2007 had examined the suitability of the applicant for promotion but the results have been placed in a sealed cover. Promotions were made consequent to DPC and the juniors of the applicant have been promoted. Mr. Bhardwaj submits that a DPC had been held again on 02.03.2009 and at this point also, juniors lower in rank have been promoted overlooking the applicant.
5. As between DPC meeting of 02.08.2007 and 02.03.2009, a development had taken place viz that charges had been framed against the applicant by the Sessions Court. It was on 17.12.2008. According to the applicant, there was no other disciplinary proceeding pending against him. The contention, however, is that the framing of the charge on 17.12.2008 would not have altered the situation to his disadvantage, since the norms which are prevailing very well indicate that what is relevant is the date of consideration and the date of promotion of the officers concerned. If this yardstick is employed, there was no bar for the respondents to consider the applicant for promotion and the DPC had erred in placing the applicants results in a sealed cover. Both on 14.06.2007 and 02.08.2007, there was no impediment for clearing the applicant as the charges had come to be framed only on 17.12.2008. The norms required strict adherence and the respondents had plainly overlooked the impact of such guidelines. In support of the contentions, the applicant had referred the two orders passed by this Tribunal in TA 431/2009 and a decision of the Rajasthan High Court reported in 2007 (1) AISLJ 375, Mohan Singh Vs. State of Rajasthan & Ors.
6. Learned counsel for the respondents, however, submitted that it would not have been possible for the applicant to claim promotion, as of right. In matters of promotion, it was mandatory that the relevant O.Ms were scrupulously observed. He points out that the earlier instructions covering the promotion perhaps were harsh, but because of the interference of the Supreme Court, the O.M. dated 12.01.1988 it had been toned down by the present O.M. of 14.09.1992. But even thereafter, it would not have been a case for the applicant to plead that further relaxation should come to him as of right now.
7. In this context, we may examine the claims of the applicant with reference to the guidelines which are mandatorily to be followed. For this purpose, it may be necessary to advert to the text of the O.M. as might be relevant. We may extract Paragraphs 2 and 7 of the O.M. of 12.01.1988 as hereunder:
2. Cases of Government servants to whom Sealed Cover Procedure will be applicable. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-
(i) Government servants under suspension;
(ii) Government servants in respect of whom disciplinary proceedings are pending or a decision has been taken to initiate disciplinary proceedings;
(iii) Government servants in respect of whom prosecution for a criminal charge is pending or sanction for prosecution has been issued or a decision has been taken to accord sanction for prosecution;
(iv) Government servants against whom an investigation on serious allegations of corruption, bribery or similar grave misconduct is in progress either by the C.B.I. or any other agency, departmental or otherwise.
xxx xxx xxx xxx
7. Sealed cover applicable to officers coming under cloud before promotion. A Government servant, who is recommended for promotion by the Departmental Promotion Committee but in whose case any of the circumstances mentioned in para 2 above arise after the recommendations of the D.P.C. are received but before he is actually promoted, will be considered as if his case had been placed in a sealed cover by the D.P.C. He shall not be promoted until he is completely exonerated of the charges against him and the provisions contained in this O.M. will be applicable in his case also. The O.M. came to be substituted on 14.09.1992, and parameters currently in force as laid down by the above could be extracted hereinbelow:
2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-
(i) Government servants under suspension;
(ii) Government servants in respect of whom a charge-sheet has been issued and the disciplinary proceedings are pending; and
(iii) Government servants in respect of whom prosecution for a criminal charge is pending. Sealed cover procedure applicable to officers coming under cloud after holding of DPC but before promotion:
7. A Government servant, who is recommended for promotion by the Departmental Promotion Committee but in whose case any of the circumstances mentioned in para 2 above arise after the recommendations of the DPC, are received but before he is actually promoted, will be considered as if his case had been placed in a sealed cover by the DPC. He shall not be promoted until he is completely exonerated or the charges against him and the provisions contained in this OM will be applicable in his case also.
8. Clause (iii) of Paragraph 2 as it existed earlier was very wide in its term, and the Supreme Court had occasion to consider the matter in Jankiramans case (cited supra). The observations arising of a judgment had been duly taken notice of by the Government. As of now, only a person in respect of whom prosecution for a criminal charge is pending, is disentitled from claiming promotion even if he had been cleared by the DPC. Before his actual promotion, however, if such prosecution comes to existence, the case is to be deemed as one where recommendations are placed in a sealed cover. He may not be entitled to promotion notwithstanding the clearance secured.
9. We may examine the contention of the applicant in the light of the above discussion. True, on the date of the first DPC (14.06.2007), there was no pendency of any prosecution proceedings as against him. However, the DPC had placed his recommendation in a sealed cover, which position cannot be disputed. As a consequence, juniors got promotion. On the next date of DPC, namely, 02.08.2007 also, the prosecution was not to have been deemed as having commenced as the charge had not been laid. The fact remains that he was not promoted at this point also. Unfortunately for him, at the time of the third DPC of 2009, charges have been framed by the criminal court on 17.12.2008. Therefore, in view of Paragraph 7 of 1992 OM, even if he had been cleared by the DPC, from that date onwards, he could not have been promoted. This position even now continues although the applicant submits that against the charge sheet, a criminal revision petition is pending in the High Court.
10. The net result is that in the above circumstances, as per clause 7 of 1992 OM, as of now, the applicant cannot be permitted to put a contention that he is promotable. The prosecution steps totally bar such a claim. But Mr. Bhardwaj submits that this might be the latest position but the claim for promotion on 16.06.2007 and immediately after 02.08.2007, could not have been possible to be denied to his client. He has been wronged, and the position should be set right. Technically counsel might be right. Had the applicant claimed reliefs, for instance by filing an application during those days, it would have been possible for the Tribunal to issue a direction for promoting him if he had been found eligible by the DPC since the sealed cover proceedings resorted to were unwarranted. However, applicant has come to this Tribunal only belatedly in the year 2009 and it may not be possible for us to shut our eyes to the prosecution proceedings, now in progress. It may also not have been possible to direct the respondents to confer promotions on the applicant, with effect from previous dates, as ultimately such direction will definitely offend the norms currently in force. In the light of the above, it may not be possible for us to accept the contention that the observations in OA 1185 of 2007 or TA 431/2009 would come to his assistance.
11. We may in this context also advert to the decision of the Supreme Court in Union of India & Anr. Vs. R.S. Sharma (2000 (4) SCC 394). The court had considered the position arising after the 1992 O.M. and had also the benefit of adverting to Jankiramans case. Supreme Court has specifically referred to the five conditions in the O.M. The fall out of the decision is that promotion could not be pressed if disablement spoken to by clause (i) to (iii) subsists. Therefore, a technical approach as suggested to overreach the OM clearly requires to be avoided.
12. Since the law has been clarified by the Court in the above decision, we do not think that it would be within our discretionary jurisdiction to accept the position of law, as made by the Rajasthan High Court in Mohan Singhs case (supra). It is to be noticed that the observations of Supreme Court in R.S. Sharma were not made available to the Honble Judge while deciding the said case.
13. We hold that it may not be possible for recognizing the claim of the applicant that he is entitled to promotion. Even if there was an error committed by the respondents in denying him his dues at one point of time, that cannot come to the help of the applicant now. We reiterate that we are looking at the matter from the present day position and because of this reason we are disabled from conferring him relief on the basis that at an earlier point of time, it should have been possible for him to press for reliefs successfully. Application is dismissed. We make no order as to costs.
(Shailendra Pandey) ( M. Ramachandran)
Member (A) Vice Chairman (J)
SRD