Central Administrative Tribunal - Delhi
M.P. Sah vs Govt. Of Nct Of Delhi on 1 June, 2009
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.846/2009 This the 1st day of June 2009 Honble Shri Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) M.P. Sah S/o late Shri Dhaneshwar Sah R/o 25-E Aaram Bagh New Delhi-55 Group B aged about 59 years ..Applicant (By Advocate: Shri Sourabh Ahuja) Versus 1. Govt. of NCT of Delhi through Chief Secretary Delhi Secretariat, New Delhi 2. Service Department through its Secretary GNCT of Delhi Delhi Secretariat IP Estate, New Delhi 3. Additional Secretary (Services) Services Department, Service I Branch GNCT of Delhi Delhi Secretariat, 7th Level, B Wing I P Estate, New Delhi 4. Joint Secretary (Services) Services Department, Service I Branch GNCT of Delhi Delhi Secretariat, 7th Level, B Wing I P Estate, New Delhi 5. SDM (Headquarters) (Vigilance) South, MB Road DC Office, Saket, New Delhi 6. Director of Education Govt. of NCT of Delhi Old Secretariat, Delhi-6 ..Respondents (By Advocate: Shri Vijay Pandita) O R D E R
Shri Shanker Raju:
Applicant impugns respondents order dated 14.11.2008 whereby his promotion ordered vide order dated 5.2.2007 has been cancelled with deletion of his name from the list of Grade I DASS officer. Applicant seeks promotion as Grade I w.e.f. 20.9.2004 with difference in pay and allowances.
2. Applicant was promoted as Grade II DASS with immediate effect. The non-promotion of the applicant was questioned through a representation as one of the juniors, namely, Gokul Chand Meena was again promoted as Grade I w.e.f. 29.8.2005. However, the applicant was notionally promoted as Grade I w.e.f. 29.8.2005 by an order passed on 5.2.2007, which has been represented by the applicant to be accorded promotion from 20.9.2004 gives rise to the present OA.
3. Applicant was issued a memorandum for major penalty on 3.5.2007. Learned counsel for applicant states that cancellation of his promotion and non-promotion from the date of his junior in 2004 and rather placing the promotion under sealed cover is not in accordance with law, as at the time of DPC neither a decision was taken to proceed the applicant in a disciplinary proceeding, nor was any disciplinary proceeding pending. As such, he has a right to be considered and promotion.
4. Learned counsel has also relied upon a decision of coordinate Bench of this Tribunal in Hargian Singh v. Govt. of NCT of Delhi & others (OA-468/2008) decided on 2.9.2008 where the issue of non-promotion and sealed cover has been considered. Also relied upon a decision of the Tribunal in Bal Kishan Badola v. Govt. of NCT of Delhi & others (OA-1931/2008) decided on 5.3.2009 where relying upon the DOPT OM of 21.11.2003 it has been held that when no departmental inquiry is initiated, then one has a right to be promoted along with colleagues and his name cannot be placed under sealed cover.
5. On the other hand, Shri Vijay Pandita, learned counsel for respondents vehemently opposed the contentions and stated that though the applicant was not promoted in DPC on 19.8.2004 due to non-receipt of the records but on completion of records, he was promoted notionally w.e.f. 29.8.2005. As an inquiry has been ordered against him on 3.5.2007, his promotion has been kept under sealed cover. Accordingly, a review DPC was held, which ultimately withdrew the promotion of applicant.
6. Learned counsel relies upon the decision of coordinate Bench of this Tribunal in S.P. Tyagi v. Govt. of NCT of Delhi (OA-2305/2005) to contend that if one before actual promotion is facing an inquiry on issue of the charge sheet, he cannot be promoted and rather sealed cover procedure has to be resorted. His promotion would be when he is completely exonerated of the charges for which DOPT OM dated 14.9.1992 has been placed reliance.
7. We have carefully considered the rival contentions of the parties and perused the material on record.
8. A person, who is facing an inquiry, i.e., when the decision is taken on file or a charge sheet has been issued, promotion has to be placed under sealed cover. However, in a situation where at the time of holding DPC, none of the conditions existed and a junior has been promoted from a date earlier to the issue of the charge sheet, delay in effecting promotion and issuing actual orders is attributable to the Government without any fault of the applicant. In such an event, the situation, as existing on the date of DPC, is relevant and not the subsequent event. Applying the above in the instant case, when a DPC was held in 2004 and the juniors have been promoted in 2004 itself, placing the promotion of applicant under sealed cover and not giving effect to the promotion order dated 5.2.2007 when a charge sheet has been issued on 3.5.2007 cannot be countenanced in law.
9. Moreover, by way of review DPC, promotion cannot be cancelled as per DOPT OM of 21.11.2002. However, the right to be considered on fair and equitable basis is a fundamental right guaranteed to a government servant, as held by the Apex Court in S.B. Bhattacharjee v. S.D. Majumdar & others, 2008 (1) SCC (L&S) 21.
10. In a similar fact situation in Bal Kishan Badola (supra), on the date of DPC when none of the conditions effected, sealed cover procedure when resorted to has been held to be illegal. The same corollary has been reiterated in Hargian Singhs case (supra) by the Tribunal, to which we respectfully agree.
11. Moreover, in Coal India Ltd. & others v. Saroj Kumar Mishra, 2007 (5) SCALE 724 as to an identical instruction, resort to sealed cover on a subsequent event has been found to be illegal.
12. The above case has also been considered in Union of India & others v. Sangram Keshari Nayak, (2007) 2 SCC (L&S) 587 where paragraph 6 of the circular dated 21.1.1993, which is in pari materia of DOPT OM of 1992 as to the sealed cover, taking note of decision of Apex Court in Union of India v. R.S. Sharma, (2000) 4 SCC 394, it has been held that when the charge sheet has not been issued resort to the sealed cover is not in consonance with law.
13. In the light of above, we have no hesitation to hold that cancellation of promotion of applicant and resort to sealed cover for promotion to the post of Grade I DASS is not sustainable in law.
14. Resultantly, OA is allowed. Impugned orders are set aside to the extent that it affects the right of the applicant. Respondents are directed to consider, on accord, promotion of applicant to the post of Grade I DASS w.e.f. 20.9.2004 with all consequential benefits, including difference in pay and allowances through a methodology apt in law, within a period of three months from the date of receipt of a copy of this order. No costs.
( Dr. Veena Chhotray ) ( Shanker Raju ) Member (A) Member (J) /sunil/