Delhi High Court - Orders
Dr. Naresh Kumar vs Shri Ajay Kumar Bhalla & Ors on 12 January, 2023
Author: Manmeet Pritam Singh Arora
Bench: Manmeet Pritam Singh Arora
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CONT.CAS(C) 529/2020
DR. NARESH KUMAR ..... Petitioner
Through: Mr. Nikhil Palli and Mr. Kaunain,
Advocates.
versus
SHRI AJAY KUMAR BHALLA & ORS. ..... Respondents
Through: Mr. Bhagvan Swarup Shukla,
CGSC with Mr. Vikrant, Advocate
for UOI.
Mr. Hemendra Singh, DC(Law)
BSF.
Mr. S.S. Bharadwaj, AC (M).
CORAM:
HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
ORDER
% 12.01.2023
1. Learned counsel for the Petitioner states that the Respondents have relied upon an office memorandum dated 14.09.2022 in support of their contention that the recommendation of the DPC is required to be kept in a sealed cover.
2. He also draws this Court's attention to the specific averments made in this regard the compliance affidavit dated 21.09.2021 at paragraph 4 which reads as under:
"In compliance of the above direction the respondent has withdrawn DG's Displeasure earlier issued to Dr. Naresh Kumar, SMO vide its order No. 14462-70 dated 19.10.2020. In furtherance to withdrawal of DG Displeasure to the petitioner, with the permission of MHA Review DPC of the petitioner for the promotion to the rank of CMO(OG) With reference to DPC held on 20.03.2015 under DACP Scheme was held on 09.11.2020 but the finding of Review DPC has been kept in 'Sealed' cover due to pending criminal case Signature Not Verified against the petitioner U/s 498 (A)/406/323 of IPC before Digitally Signed By:PRAMOD KUMAR VATS Signing Date:17.01.2023 14:34:46 Hon'ble Court CJM No. 3 Bikaner(Raj) since 30.12.2013. The recommendations of Review DPC has been approved by MHA vide its UO No. A-120ll/2021/Pers III(CF 3511017) dated 18.01.2021."
3. Learned counsel for the Petitioner states that it is an admitted fact that the criminal case before the CJM No. 3 Bikaner (Raj) as referred in compliance affidavit is a case arising out of matrimonial dispute between the Petitioner and his now divorced wife. He states that the divorce between the Petitioner and his then wife has attained finality in 2019. He states that there is no co-relation or basis for withholding the DPC on account of the said criminal case which is a personal matter.
4. He states that in identical facts, this Court vide judgment dated 22.03.2017 in Himanshu Gupta v. Engineers India Limited, W.P.(C) No. 6391/2016 clarified that OM dated 14.03.1992 would only deal with a criminal case, which arises on account of misdemeanour or misconduct or violation of service rules by an employee while performing his services with the employer. The relevant portion of the judgment read as under:
"2. The only defence urged by the respondent/employer is that against the petitioner, his wife had filed a criminal case under Sections 488A/323/504/506/327/420/467/468/471 of the Indian Penal Code, 1860, with Sections 3 and 4 of the Dowry Prohibition Act, 1961, and therefore, the respondent/employer in accordance with the directions contained in the government Circular dated 14.9.1992 has not granted promotion to the petitioner.
7. In view of the above discussion, it is held that respondent/employer cannot rely upon the OM dated 14.9.1992 to deny promotion to the petitioner by not declaring the result by resorting to the sealed cover procedure pursuant to the decision of the DPC, and for which results were declared on 30.6.2014, inasmuch as, the OM dated 14.9.1992 would only deal with a criminal case which arises on account of misdemeanor or misconduct or violation of the service rules by an employee while performing his services with the employer.
(Emphasis supplied)
8. In view of the aforesaid discussion, this writ petition is allowed and the respondent's procedure of putting the Signature Not Verified Digitally Signed By:PRAMOD KUMAR VATS Signing Date:17.01.2023 14:34:46 promotion of the petitioner in a sealed cover of the DPC with respect to promotion of the petitioner to the post of Deputy Manager is quashed. The result of the petitioner's promotion in terms of the DPC for which results were to be declared on 30.6.2014 will now be declared within a period of two weeks and such results will be taken as having been declared as regards the petitioner on 30.6.2014. Petitioner will be entitled to appropriate consequential reliefs."
5. He states that in view of the said judgment, the reliance placed by the Respondents in the office memorandum dated 14.09.2022 is incorrect and the same would amount to wilful non-compliance of the order of the Court which is a subject matter of the contempt petition.
6. In reply, learned counsel for the Respondent states that he will take instructions in the matter in view of the aforesaid judgment relied upon by the Petitioner.
7. List on 17.02.2023.
MANMEET PRITAM SINGH ARORA, J JANUARY 12, 2023/hp/kv Signature Not Verified Digitally Signed By:PRAMOD KUMAR VATS Signing Date:17.01.2023 14:34:46