Central Administrative Tribunal - Delhi
Asst. Sub-Inspector Mahender Singh vs Govt. Of Nctd on 18 March, 2011
Central Administrative Tribunal Principal Bench OA No.1906/2010 New Delhi, this the 18th day of March, 2011 Honble Dr. Ramesh Chandra Panda, Member (A) Honble Dr. Dharam Paul Sharma, Member (J) Asst. Sub-Inspector Mahender Singh, No.2755/D S/o Shri Bharat Singh R/o House No.63, Village & PO Nangal Thakran P.S. Bawana, Delhi-39. Applicant in person Versus 1. Govt. of NCTD Through the Commissioner of Police, Police Headquarters, I. P. Estate, New Delhi. 2. Addl. Dy. Commissioner of Police, Establishment Police Headquarters, I. P. Estate, New Delhi. Respondents. (By Advocate : Mrs. Sumedha Sharma) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Shri Mahender Singh working as ASI with Delhi Police has impugned the order dated 22.02.2010 (Annexure-A2) issued by the Deputy Commissioner of Police (Head Quarters) Delhi whereby he was graded as Unfit to be brought on promotion list E-I (Executive) for the year 2009-10 with effect from 11.02.2009. He has also assailed the Standing Order No.378/2009 dated 27.07.2009 (Annexure-A colly). Being aggrieved by the same, he has appealed vide his letter dated 27.04.2010 (Annexure-A6) which was rejected in the order dated 20.05.2010 (Annexrue-A7). Hence he has now visited the Tribunal under Section 19 of the Administrative Tribunals Act, 1985, with the following reliefs:-
(i) to direct the respondents to admit the name of the applicant to the Promotion List E-I (Exe.) at Annexure A-2, in the interest of justice;
(ii) to declare the standing order No.378/2009 as contrary to the statutory provisions of law applicable to the officials of Delhi Police;
(iii) to pass any such/order order(s) which this Honble Bench may deem fit and proper in the interest of justice.
2. The factual matrix of the case that led the Applicant to file this OA would reveal that he was considered on 11.02.2010 by the Departmental Promotion Committee (DPC) for admission to the Promotion List E-I (Executive). The Departmental Promotion Committee considered his case and assessed him as Unfit to bring him in the said list for the year 2009-10. The Applicant submitted a representation against his non-inclusion in the Order dated 22.02.2010, which, on consideration was rejected on the ground that he had been awarded five censures. Feeling aggrieved, he is before the Tribunal in the present OA.
3. The Applicant in person argued his case himself in the absence of his Counsel. He submitted that the Censures awarded to him were not on the account of any corruption, moral turpitude, or dereliction of duty which should attract any impediment in granting him promotion. It is urged that the Censures were awarded for minor misconduct. His contention was that he was punished for such small misconducts that he should not have been declared not fit for inclusion in the list E-I (Executive) for promotion. He also submitted that issue of the impact of Censures for promotion would be maximum for six months after which there would be no effect as the Censures would automatically lapse. He drew our attention to the Standing Order to state that on account of Censures more than 10 adverse marks could not have been given. Further, he states that the SO came into force in the year 2009 and the Censures were awarded to him prior to 29.07.2009. Law prevailing at that time is applicable. Further, he submits that there is no adverse remarks in his ACR. He, therefore, pleads to allow the OA and his promotion.
4. On the contrary, Mrs. Sumedha Sharma, learned Counsel for the Respondents controverted the grounds raised by the Applicant. She drew our attention to the counter reply to state that the Applicant was censured on many occasions in his previous service. He submitted that the Applicant was censured 5 times from the year 2005 to 2008 when he was considered for promotion. Besides, she submits that the Departmental Promotion Committee has assessed the suitability of the Applicant on the basis of his ACR recorded during the preceding 5 years together with the general record of service like punishment etc and having taken a holistic view on his career, the Applicant was found as Unfit for the inclusion in the list E-I (Executive) for promotion. She submits that the Larger Bench decision would be fully applicable in the case and decision of this Tribunal would go against the Applicant. She further referred to the SO No.378/2009 to submit that DPC assessed his records as per the guidelines and he earned 12 adverse points. Therefore, she pleads that if all these facts are taken into account, the OA would be liable to be dismissed.
5. Having heard the rival contentions, we also perused the pleadings as well. The question arises whether the award of 5 censures on the Applicant would be impediment for his inclusion in list E-I (Executive) for promotion?
6. The issues in the present OA need to be looked into first of all from the point of view what are provided in the statutes, statutory Rules and executive instructions; then we will take note of the case laws on the subject including the decisions of the Tribunal in Full Bench and Larger Bench; and finally, in the backdrop of legal setting we would examine the facts of the case in the current OA for determination of the above issue.
7. Promotions of all subordinate ranks are governed by the Delhi Police (Promotion & Confirmation) Rules, 1980 issued in exercise of the powers conferred by sub-section (1) of Section 147 of Delhi Police Act, 1978. Section 148 of Delhi Police Act, 1978, envisages that every Rule and Regulation made under the said Act would be made by Notification in the Official Gazette, after the same had been passed by the Parliament. Thus, the Delhi Police (Promotion & Confirmation) Rules, 1980 are statutory in nature and are binding. Rule 4 of Delhi Police (Promotion & Confirmation) Rules, 1980, defines Upper Subordinates to include Police Officers of rank of Assistant Sub Inspector and Inspector which means that these Rules would be applicable in the present case relating to the promotion or otherwise of the Applicant in Delhi Police. We would like to refer to those statutory provisions.
8. General principles of promotion are laid down in Rule 5, which reads as under:-
(i) Promotions from one rank to another and from lower grade to the higher grade in the same rank shall be made by selection tampered by seniority. Efficiency and honesty shall be the main factors governing selection (Amended vide Notification No.F.5/60/83-H (P)/Estt. Dated April 7, 1984). Zone of consideration will be determined in accordance with the rules/instructions issued by the Government from time to time.
9. Rule 7 (ii) makes it clear that the conduct and efficiency of men on promotion list shall be, at all times, watched with special care making it clear that even an officer, whose name exists on the promotion list, if found guilty of a misconduct of nature reflecting upon his character or fitness or responsibility or who shows either by specific acts or by his record as a whole that he is unfit for promotion to higher rank shall be reported. Rule 8 envisages the constitution of a Departmental Promotion Committee (in short DPC) who shall judge the fitness of personnel for promotion to various ranks in different grades/cadres.
10. It is clear that detailed rules exist laying down the criteria to be kept in mind while considering the subordinate officers for promotion to the different ranks up to Inspector in Delhi Police. Rule 21 of these rules provides that the Standing Orders (SO) laying down details of the evaluation system and the procedure to be followed by DPC for interview etc. shall be issued by the Commissioner of Police. In other words the circulars are executive instructions which are required to be kept in mind by the DPC while considering the candidates for promotions in order to maintain uniformity. Therefore, those Standing Orders are equally binding but they cannot supersede the statutory Rules. It is settled position in law that in case of conflict the Act will prevail over the Rules, the Rules will prevail over the instructions. If rules are silent on certain aspects, instruction can supplement the same.
11. The Commissioner of Police has been issuing Circulars under Rule 21 from time to time. It is relevant to note that the counsel for Applicant and the Respondents had relied on the circulars dated 23.09.1992 and 7.2.2005 and the Standing Order No.378/2009 dated 29.07.2009. In order to appreciate the position, it is necessary for us to quote from the circulars and SO for ready reference which read as under:-
I. Circular dated 23.9.1992 The following principle should be observed while holding departmental promotion committee for admission of names to the promotion lists :-
i) Officers having at least 3 'Good' or 'above' reports and without any below average or adverse report during the last 5 years may be considered.
ii) The total record of the officer in that particular rank shall be taken into view with particular reference to the gravity and continuity of punishments till date. Punishments on counts of corruption and moral turpitude are to be viewed seriously.
iii) Officers who have been awarded any major/minor punishment in the preceding 5 years on charge of corruption, moral turpitude and gross dereliction of duty to protect government property, or major punishment within 2 years on charge of administrative lapses, from the date of consideration may not be empanelled.
iv) Officers whose names stand on Secret List shall not be considered fit as per S.O. No. 265/89.
v) Officers who have been awarded censures during the last 6 months with no other punishment may also be allowed to be brought on promotion list provided they do not have any other major punishment. However, the effect of Censure by debarring the official for promotion by six months shall continue.
vi) Result of Officers, who are under suspension or facing D.E. or involved in criminal cases, shall be kept in sealed covers.
vii) In cases where vigilance enquiries are pending against an officer and the allegations are specific and serious in nature, results may be with-held the finalisation of the enquiry. II. Circular dated 7.2.2005 The following principles shall be observed, in future, while holding Departmental Promotion Committee for admission of names to promotion lists:-
The DPC should assess the suitability of the employees for promotion on the basis of their Service records with particular reference to the Confidential Reports for five preceding years irrespective of the qualifying service prescribed in the Service/Recruitment rules. Officers having at least three good and above reports without any below average or adverse report, even for a small period during last five years may be empanelled. (If more than one CR has been written for a particular year, all the CRs for relevant year shall be considered together as the CR for one year).
The service record of the officer during preceding 10 years in that particular rank shall be taken into account with particular reference to the gravity and continuity of punishment till date. Punishment on counts of corruption and moral turpitude are to be viewed seriously.
Officers who have been awarded any major/minor punishment in the preceding 5 years on charges of corruption, moral turpitude and gross dereliction of duty to protect government property or major punishment within 2 years on charges of administrative lapses, from the date of consideration may not be empanelled.
Officers whose names stand on Secret List shall not be considered fit as per S.O. No. 265 on the subject.
Officers who have been awarded censure(s) during the last 6 months cannot be allowed to be brought on promotion list. However, the effect of censure debarring the official for promotion for six months from the date of award, shall continue.
Result of officers, who are under suspension or facing DE or involved in Criminal Cases shall be kept in sealed covers.
This supersedes earlier circular, issued vide this Hdqrs. Order No. 83135-234/CB-1, dated 03.12.1998. III. Standing Order No.378/2009 dated 29.07.2009 OB No.106/2009.
The Govt. of India, Deptt. of Pers. & Training O.M. No.22011/5/86-Estt.(D), dated 10.04.1989 as amended by O.M. No.2011/5/91-Estt.(D), dated 27.05.1997 gives broad instructions and guidelines for promotions. As per the DPC guidelines, the DPCs enjoy full discretion to devise their own methods and procedure for objective assessment of the suitability of candidates who are to be considered by them. In order to ensure greater selectivity in the matter of promotions and for having uniform procedure for assessment by DPC, the following broad guidelines/criteria to be adopted by the DPCs for various promotion lists prescribed in Delhi Police (Promotion & Confirmation) Rules, 1980 and grant of financial up-gradation under ACP Scheme have been issued vide this Hdqrs. Circular No.A-1/12(6)/98/SPL/72618-717/CB-I/PHQ, dated 29.12.2008 and addendum No.851-1000/Record Br./PHQ(AC-1), dated 30.3.2009. The broad guidelines/criteria are as under:-
1. The DPC should assess the suitability of the personnel for promotion on the basis of their service records with particular reference to the Annual Confidential Reports for five preceding years irrespective of the qualifying service prescribed in the Service or Recruitment Rules. Personnel having at least three good and above reports without any below average or adverse report, even for a small period, during the last five years may be empanelled. If more than one ACR has been written for a particular period then granting of ACR shall be assessed by taking average of these ACRs e.g. if the ACR is Outstanding for a longer period and Very Good/Good for the remaining period then the ACR will be graded as Very Good. If the ACR is Very Good/Excellent for a long period & Average for the remaining period then ACR will be graded as Good. Similarly if the ACR for a long period is Good and Average for the remaining period then ACR for the longer period will be considered. The grading of ACR shall be done by the DPC on these principles. However, if adverse remarks (C ACR) have been recorded for even a smaller part of the year, the adverse grading would be taken into consideration and the individual would be debarred from empanelment for 5 years. As per the current ACR format, the only grading which are applicable for lower subordinates are A, B & C. A is excellent/outstanding, B is very good/good and C is adverse. Any other grading in the form of plus and minus of outstanding, satisfactory, good are irrelevant. Where the work and conduct of any employee has been categorized as B, whether it is good B or B+ or satisfactory B or B, it will still be treated as very good/good.
2. Officers who have been awarded any major punishment in the preceding 05 years on the charges of corruption, moral turpitude and gross dereliction in discharge of duty or major punishment within 02 years on charges of administrative lapses, misconduct, negligence, inefficient performance from the date of consideration may not be empanelled.
3. Officers who have been awarded any minor punishment in preceding 05 years is charges of corruption, moral turpitude etc. consequent upon conducting D.E. proceedings for the award of major punishment in which the charges have been found proved, may not be empanelled.
4. Besides the disciplinary proceedings resulting in award of major/minor punishments on grounds of moral turpitude, corruption and other reasons as indicated in para (2) and (3) above, the punishment record of the officer including such punishments as mentioned in para (2) & (3) above during the preceding 10 years in that particular rank shall be taken into account to access the overall performance of a candidate (with particular reference to the gravity and continuity of punishments till date). Award of major/minor punishments on their own, as detailed in para (2) & (3) above, debar a candidate from empanelment for specified period. In addition to the disability caused by specific acts of punishment, the cumulative punishment record of a candidate is also a relevant factor for assessing the suitability of a candidate for a higher post. All punishments awarded during the period of 10 years preceding the year of DPC would also be taken into consideration. If an officer on assessment of record of punishment get more than 10 (ten) adverse points, he shall not be empanelled in that particular year. For calculating 10 adverse points, each major punishment with corruption/moral turpitude would carry 6 points, each major punishment would carry 4 points and each censure would carry 2 points. A censure awarded consequent upon conducting DE proceedings for the award of a major punishment in which charges have ben found proved would carry 4 points.
5. Officers, who have been awarded a censure during the last 6 months and not covered by any of above clauses on minor punishment, can be allowed to be brought on the promotion list. However, the effect of censure debarring the official for promotion for six months from the date of award shall continue. The following lines may be added at point No.5 of S.O. No.378/2009 issued vide this Hdqrs. No.14642-742/Record Br./PHQ, dated 29.7.2009:-
After expiry of the period of penalty, the official concerned will be promoted from the same panel in which he was originally empanelled. On his promotion, his pay and seniority in the higher post will be fixed according to his position in the panel from which he is promoted but the monetary benefits in the higher post will be admissible only from the date of his actual promotion.
12. It was specifically mentioned in para 5 of the Circular dated 23.09.1992 that even those officers, who had been awarded censures during last 6 months could be brought on the promotion list provided they do not have any other major penalty but effect of censure would be to defer the promotion by 6 months, but in circular dated 7.2.2005 language is different. It clearly lays down that if censures are awarded during last 6 months, such officers cannot be brought on promotion list. However, effect of censure to debar a person from promotion for 6 months shall continue.
13. Keeping these two circulars and the SO No.378/2009 in view, and the statutory provisions in the subject in the back of our mind we discuss here the issue of censure and its effect on promotion in Delhi Police as evolved in the judgments of the Tribunal and Honble High Court of Delhi.
14. One of the earliest case we may refer, relates to the judgment in WP (C) 2189/98, Union of India Versus Virender Singh, decided by a Bench of the Honble Delhi High Court, on 18.12.2001. It arose from a case when in OA 746/95 this Tribunal had set aside the orders passed by the Delhi Police where the applicant in the OA had been found as unfit for inclusion in Promotion List F-1 by the DPC. The Tribunal noted that the applicant qualified himself for consideration, and that he had not been awarded any punishment on charges of corruption, nor he had any other disability, but for the two censures issued to him. It was noticed that the circular permits that officers who have been awarded censures with no other punishments are to be brought on promotion list, after a specified period. Since the DPC had not recorded that the censures issued specifically were in respect of issues involving moral turpitude, the finding by DPC to rate him unfit, required to be reviewed. The Honble High Court upheld the order of the Tribunal. We note that at that time the Circular in operation was of 23.09.1992.
15. Next judgment is in the case of V.D. Madan and Ors. Versus Union of India & Ors. (CWP 1354/2001) decided by the Division Bench of Honble Delhi High Court on 15.07.2002. It was a Writ Petition filed by a police officer, who was declared as unfit by the DPC. OA filed by him was rejected, since the Department, had found the officer unfit for promotion as he had been issued penalty of censures. Respondents had contended that a Government servant was to have requisite grading of ACR, but simultaneously adverse entries in the shape of minor/major penalty cannot be overlooked because what is relevant is the total records of service. The Tribunal held as follows:-
The punishments are for acts of omission or commission, they also are indicative of the applicants suitability for promotion. The punishment has necessarily to be taken into account in the same manner as any adverse remark, which may otherwise be recorded. Disagreeing with the said order of the Tribunal and adverting to Virender Singh case (supra) the Honble High Court of Delhi considered and interpreted the circular as follow:-
There cannot be any doubt whatsoever that the respondents are bound by the aforementioned circular letter. In that view of the matter, the minor punishments of censure awarded against the petitioner, in our opinion, could not be taken into consideration.
16. Another decision of Delhi High Court is in the case of (W/HC Tejwati Versus Union of India & Ors.) (CWP 4821/01). The Writ was decided on 11.1.2002 and was about the Petitioner challenging the decision of the Tribunal in dismissing the OA No.851/2000. The punishment of censure had been awarded to her on the ground that she had accepted illegal gratification from a person accused of pick pocketing and she was declared as unfit by DPC. Relying on the Rules, the Tribunal too had held that no interference was warranted. The Honble High Court controverting the submissions made by the applicant had held that the applicant in that case had been charged with misconduct involving corruption and dishonesty. Observation was that Evidently the punishment awarded has a direct nexus with the honesty. Circular, according to the High Court, justified rejection of a claim. Therefore, in the case of penalty of censure, the misconducts on the basis of which the stricture was passed, required to be meticulously noted.
17. The judgment of the Honble Delhi High Court in WPC No. 1385/2007 decided on 13.09.2007, titled as Commissioner of Police Versus Rajender Singh, erased the expositions made by the earlier judgments on the subject, viz. Vishnu Dev Madans case (cited supra). We may briefly state the circumstances, in which the matter came to the Honble High Court. When Rajender Singhs claim for promotion arose for the reason that he had six censures, DPC did not clear him. OA 1354/2001 thereupon had come to be filed. Relying on Vishnu Dev Madan case (supra), and accepting the plea that two years had passed after the last censure was issued, the Tribunal granted him reliefs, which was assailed in a writ petition filed by the Commissioner of Police. The Honble High Court had found that during that time, the circular of 23.09.1992 was in operation. We have extracted the circular in full within. The Honble High Court in Paragraph 7 of the judgment noticed that the effect of penalty of censure would have been that promotion could be given effect to, although an officer was found suitable, after a period of six months from the date of penalty. Censure by itself would not have been an impediment against him from being considered for promotion; it had impact on the date of the benefit. The circular of 1992 also required that the total record of the officer, with particular reference to the gravity and continuity should receive attention. It had been observed as follows:
The total record of an officer would include all commendations and penalties in the service record of the officer. It would also include the major and minor penalties. Merely because the minor penalties may have a direct impact only for a limited period, such as Censure or reduction in pay for a limited period, which does not have an effect of postponing future increments, it does not mean that such penalties would cease to be a part of the total record of the office. This aspect has not been appreciated by the Tribunal. Therefore, mere meritorious record, as reflected in the ACRs is not sufficient, and the candidate also has to be one, who is not unsuitable for promotion to the higher rank
18. In Ashok Kumar Meens Versus Government of NCT of Delhi & Others (OA No.1295/2007 decided on 25.09.2008), Full Bench of this Tribunal also considered the same issue. It is apt for us to take the extract of the relevant paragraph of the judgment.
29. Therefore, we hold that, The circulars issued are not the lone guidelines, statutory rules require to be followed in letter and spirit.
Taking note of the statutory Scheme, as augmented by the circulars, the total service records, positive and negative, including major and minor penalties are required to be scanned by the DPC before they make a recommendation.
The general trend as could be gatherable from the circular is that perpetual bar of promotion is not envisaged, as in such case a person resigned to such a fate may have little to offer in his career thereafter. On this basis, it would be safe to assume that if an officer at some point of his career had occasion to receive censure that alone should not, for all time, block his promotional opportunities. The effect of a minor penalty of censure would operate to deny him promotion, even if adjudged as fit, for a period of six months. But if the censure was required to be administered for a conduct involving corruption, moral turpitude, violence, defiance and the like, the benefit of six months period may not be claimable, even if technically he may be in a position to assume promotability after the six months period as appearing in the circular. The regularity spoken to by the circular also could be applied only subject to the above position, namely, that the proceedings leading thereto should have traits of moral turpitude. On the issue of regularity, we have been constrained to express our view as above, since as of now it is an appendage to clause (ii) of the circular. It may be within the powers of Administration to prescribe that an officer, who receives censures for whatever reasons regularly could be considered as ineligible for getting a clearance by the DPC by incorporating changes in the circular.
31. We remit the matter to the Division Bench for considering the O.A. on merits.
Per Justice V. K. Bali, Chairman:
I have gone through the judgment authored by Justice M. Ramachandran, Vice-Chairman (J). I respectfully agree with the view taken by the Honble Vice-Chairman on the questions framed for adjudication by the Full Bench. I may only add to the thought process of the Honble Vice-Chairman while arriving at the conclusions drawn by him. General principles of promotion are contained in rule 5 of the Delhi Police (Promotion and Confirmation) Rules, 1980 (hereinafter to be referred as the Rules of 1980). Rule 5(i) which may be relevant for adjudication of the issue by the Full Bench, reads as follows:
(i) Promotions from one rank to another and from lower grade to the higher grade in the same rank shall be made by selection tempered with seniority. Efficiency and honesty shall be the main factors governing selection. Zone of consideration will be determined in accordance with the rules/instructions issued by the Government from time to time. A confirmed Assistant Sub Inspector (Executive) having minimum of six years of service in the said rank, is eligible for List E-I (Exe.), i.e., Sub Inspector (Exe.). In view of rule 16(i) of the Rules of 1980, selection has to be made on recommendations of the Departmental Promotion Committee. Rule 16(i) of the Rules reads thus:
Confirmed Assistant Sub-Inspectors (Executive), who have put in a minimum of 6 years of service in the rank of Assistant Sub-Inspector (Executive), shall be eligible for List-E-I (Executive). The selection shall be made on the recommendations of the Departmental Promotion Committee. The Assistant Sub-Inspector so selected, shall be brought on List E-I in order of their respective seniority, keeping in view the vacancies in the rank of Sub-Inspectors (Executive) likely to occur in the following one year. Subject to the medical fitness by the Civil Surgeon the selected Assistant Sub-Inspectors (Executive) shall be sent for training in the Upper School Course. On successfully completing the Upper School Course, their names shall be brought on promotion List E-II (Executive) in order of their respective seniority in List E-I for promotion to the rank of Sub-Inspector (Executive) as and when vacancies occur. Perusal of provisions of the Rules reproduced above would clearly manifest that promotion is by way of selection, tempered by seniority, and efficiency and honesty are the main factors governing selection. Once, seniority is not the sole criteria governing promotion, and selection is to be made keeping in view the efficiency and honesty, I would have no doubt in my mind that the service record of the applicant is relevant and censure(s), which are admittedly minor penalty under rules, shall have to be taken into consideration. The circular reproduced above also refers to the service record, which can only mean the entire service record. The Division Bench of Delhi High Court in Commissioner of Police v Rajender Singh (supra) also held likewise as has been already reproduced in para 22 of the judgment. Normally, therefore, when promotion is by way of selection, the entire record of an employee becomes relevant and has to be taken into consideration. In the present case, however, whereas it is true that efficiency and honesty are main factors governing selection, and that censures, in any case, would reflect upon efficiency of an employee, the respondents have themselves laid down the parameters of efficiency by issuing circulars from time to time, as mentioned above. In the parameters laid down in the circulars for efficiency for promotion, what may come in the way of an employee so as not to be promoted, are such censure(s) which may have the element of corruption and moral turpitude during the last ten years in that particular rank. As per clause iii) of the circular, officers who might have been awarded even a minor punishment, as indeed censure is a minor punishment, in the preceding five years on charges of corruption, moral turpitude and gross dereliction of duty to protect government property, may also not be promoted, but the officers who have been awarded censure(s), and the word censure(s) would have any number of the same during last six months, cannot be brought on the promotion list. However, the effect of censure debarring the official for promotion for six months from the date of award shall continue. Once, there is a reference of minor punishment having the element of corruption, moral turpitude and gross dereliction of duty to protect government property in a separate clause, i.e., clause iii), the censure(s) separately referred to in clause v) which do not have the element of moral turpitude and dereliction of duty to protect government property, thus cannot come in the way of promotion except to the limited extent as mentioned in clause v) itself. Once, the respondents have themselves laid the parameters of efficiency and censure(s) other than involving moral turpitude etc. are not to be taken into consideration in the matter of promotion, the respondents cannot withhold promotion of an employee only on such censure(s). Any other interpretation may also lead to discriminatory treatment that may be meted to persons similarly situate. In a given case, the circular with regard to censure(s) as envisaged in clause v) may be taken as a good ground for debarring a person for promotion, whereas in the other, it may well be said by the respondents that such censure(s) would not debar a person for promotion to the next higher rank.
19. In the meantime, the judgment of Honble High Court of Delhi in the case of Commissioner of Police Versus Mr. Jawahar Singh (W. P. [C ] No. 17266/2006) held a different stand. Reliance was placed by the Honble High Court in (i) State of Tamil Nadu and Another Versus P. Bose and Another (1993 Supp. (3) SCC 491) and (ii) Union of India Versus K.V. Jankiraman reported in 1991 (4) SCC 109. After referring to the judgments of Honble Supreme Court in (i) and (ii) it was held by the Honble High Court in Jawahar Singhs case as follows:-
It is thus well established principle of law that while considering the employee for promotion, his whole record can be taken into consideration by the promotion committee and if the DPC takes into consideration the penalties imposed upon the employee and denies promotion, such a denial cannot be treated as illegal or unjustified. In the present case as noted above from 1996 to 2001, he was awarded penalty of censure four times. The reasons for which such penalty was awarded should also be mentioned as can be seen from the extract of the DPC quoted above. The Tribunal was thus wrong in solely relying upon the Clause-V of the OM dated 07.02.2005. This clause simply states that if an employee is given punishment of censure that shall debar him from promotion for six months and after the expiry of six months, he can be considered for promotion. That would mean that during the currency of said punishment which is for a period of six months, such an employee cannot even be considered for promotion. However, though after six months he can be considered for promotion but after going by the overall record and the nature of punishment imposed, the DPC comes to the conclusion that such an employee is not fit to be promoted, the court cannot interfere with this subjective satisfaction of the DPC which obviously is based on objective material.
We, therefore, are not in agreement with the view taken by the learned Tribunal which is contrary to the aforesaid position in law. Accordingly, this writ petition is allowed, judgment of the Tribunal is set-aside and consequently the OA filed by the respondent before the Tribunal stands dismissed. There shall be no order as to costs.
20. In view of the above development that a batch of 3 OAs (OA No.452/2009, OA No.2776/2008 and OA No.2343/2008) taking the case of Prabhu Dayal as a lead case in OA No.452/2009 was referred to the Larger Bench of 5 Members of this Tribunal for an authoritative decision in the matter. The issue arose in the case of S.I. Prabhu Dayal who was awarded 7 censures on 26.10.1998, 27.10.1998, 4.01.2001, 31.12.2001, 23.01.2002, 8.5.2002 and 27.4.2006, and was ignored for promotion to List F (Executive) for the post of Inspector of Police on the ground of having indifferent service record. He had challenged the action of the respondents on the ground that since none of the 7 censures were based on corruption, moral turpitude or gross negligence in protecting the Government property, he could not have been denied the promotion. Reliance was placed on the above said Full Bench judgment in Ashok Kumar Meenas case (supra). After hearing the counsel for all the parties, the Larger Bench framed following three questions to be considered:-
(i) Whether the judgment in the case of Jawahar Singh can be declared as per incuriam as it did not consider the judgment in the case of Vishnu Dev Madans case?
(ii) Whether circular dated 7.2.2005 has binding force and would it overrule the statutory rules?
(iii) What would be the effect of judgment given by the Honble High Court of Delhi in Jawahar Singhs case on the judgment of Full Bench of Tribunal in O.A. 1295/2007 in the case of Ashok Kumar Meena decided on 25.9.2008?
The larger Bench took a very close perusal of all the judgments as referred to above and observed that Clause-V of Circular dated 7.2.2005 had been explained for the Ist time in Jawahar Singhs case (supra). Earlier clause-V of circular dated 7.2.2005 was not even the subject matter. They were dealing with a different circular in which Clause-V was worded differently. Moreover, the view taken in Jawahar Singhs case (cited supra) has been followed by Honble High Court in subsequent case of Samu Murmu Versus Govt. of NCT of Delhi and Others [W.P. ( C) No. 983 of 2010]. The larger Bench concluded as follows:
It is thus clear that the latest view taken by Honble High Court is that though censure has its effect for a limited period but it does not get wiped out after 6 months. It continues to be a part of the total record of an employee. If on the basis of overall record DPC comes to the conclusion that a person is unfit, it calls for no interference. The question whether the judgment in Jawahar Singh case can be declared as per incuriam or not was also analysed by the larger Bench of the Tribunal. Referring to N. Bhargavan Pillai (dead) by LRs and Others Versus State of Kerala (AIR 2004 SC 2317),and Subhash Chandra and Another Versus Delhi Subordinate Services Selection Board and Others [2009 (15) SCC 458 at 498] the judgment of Honble Supreme Court, the larger Bench decided as follows :
36. In view of above discussion, we hold as follows:-
Judgment of Jawahar Singh given by Honble High Court cannot be declared as per incuriam.
Circular dated 7.2.2005 is binding but it would not supersede the statutory rules.
Interpretation of clause-v of circular dated 7.2.2005 as mentioned in para (iii) Supra. given by the Tribunal in Ashok Kumar Meena stands overruled by the judgment of Honble High Court in Jawahar Singhs case. Honble Chairman of this Tribunal agreeing with the above decision recorded his observations as follows :
I have gone through the judgment authored by Honble Mrs. Meera Chhibber, Member (J). I am in respectful agreement with the conclusion that has been arrived at. The issue has since already been dealt with by a Full Bench consisting of Chairman and two Vice Chairmen. The necessity to re-visit the said decision of the Full Bench arose because of a decision of a Division Bench of Honble Delhi High Court taking a view other than the one taken by the Full Bench of this Tribunal. Once, the judgment relied upon by the respondents of the Delhi High Court deals directly with the issue and the same is neither sub silentio nor per incuriam, it has to be followed irrespective of our view recorded in the Full Bench. It is an admitted position that judgment of the High Court, particularly when it may pertain to the High Court within the jurisdiction of which the Bench of the Tribunal is located, has to be followed. The law thus laid down by the Full Bench of this Tribunal has to be overruled.
21. It is apt for us to note that the Commissioner of Police, Delhi has issued the SO No.378/2009 and the addendum there on spelling out uniform Promotion Policy to be followed by the DPCs. The guidelines provide transparent assessment system, more so it has introduced the adverse points to be earned/calculated for a period of 10 years preceding the years of promotion. There is no illegality in the said Guidelines.
22. In the backdrop of the above settled position in law on the issue of impact of censures on the promotion, we would examine the facts of the case in this OA. The Applicant could not get his promotion as the DPC noted that 5 censures were awarded on him. The Respondents in their affidavit have furnished the facts on the punishments the Applicant received on 28.07.2005, 29.05.2007, 12.10.2007, 11.02.2008 and 11.09.2008. It is apt to note that for the Censures on first 4 occasions he got 8 adverse points at the rate of 2 per Censure but for the 5th Censure Respondents clarified that the Censure was awarded consequent to a major punishment for which 4 adverse points were awarded. Thus, the Applicant having earned 12 adverse points was declared unfit by the DPC as per the extant SO and law.
23. Taking into account the total facts and circumstances of the case, and guided by the settled legal position, more specifically the judgment of Honble High Court of Delhi in Jawahar Singhs case (supra) and the decision of the 5 Member Bench of this Tribunal in Ashok Kumar Meenas case (supra), and the adverse marking system introduced in the SO No.378/2009, and for the reasons given within, we find that the Applicant has got a very chequered career with 5 punishments of censure during 2005 to 2008 which were correctly taken into account by the Departmental Promotion Committee and he was declared as Unfit for inclusion in list E-I (Executive) for promotion. Besides the adverse points allotted to the Applicant are as per the guidelines in the SO No.378/2009. Thus, in our considered view, the penalty of censures awarded to the Applicant are impediment for his inclusion in the list E-I (Executive) for promotion and the DPC and the competent authority have rightly declared him Unfit for the said list E-I (Executive) and Promotion.
24. Resultantly, the OA being devoid of merits is dismissed. There is no order as to costs.
(Dr. Dharam Paul Sharma) (Dr. Ramesh Chandra Panda) Member (J) Member (A) /pj/