Central Administrative Tribunal - Delhi
Shri Rakesh Chaudhary vs Govt. Of Nct Of Delhi on 30 October, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No.136/2013
Order reserved on: 04.09.2014
Order pronounced on: 30.10.2014
Honble Mr. G.George Paracken, Member (J)
Honble Mr. A.K. Bhardwaj, Member (J)
Honble Mr. Ashok Kumar, Member (A)
Shri Rakesh Chaudhary
S/o Late Shri Mahender Singh
R/o 1047 Neeti Khand-1,
Indira Puram, Ghaziabad -Applicant
(By Advocate: Shri Ajesh Luthra)
Versus
1. Govt. of NCT of Delhi
Through the Chief Secretary,
5th Floor, Delhi Sachivalaya, New Delhi
2. The Principal Secretary
(Services)
GNCT of Delhi
7th Level, B Wing,
Delhi Secretariat, I.P. Estate
New Delhi. -Respondents
(By Advocate: Shri Vijay Pandita)
O R D E R
Mr. G. George Paracken, Member (J):
This case has been referred to the Full Bench by the orders of the Honble Chairman under Rule-52 of the Central Administrative Tribunal Rules of Practice, 1993 on the basis of the request made by a Division Bench of this Tribunal vide its order dated 07.01.2014 in this O.A. Its relevant part is reproduced as under:-
16. The fact remains that the applicant in this case is not seeking any substantive promotion and parity with his colleagues and juniors in consideration of his case for any substantive promotions. He is only aggrieved by his case not having been considered for ad hoc and emergent basis promotions, which adhoc and emergent basis promotions have been granted to many of his colleagues and juniors, against certain posts, which are named as ex-cadre posts equivalent to the DANICS entry level posts. Learned counsel for the applicant strenuously argued that this amounts to a gross discrimination against the applicant. He submitted that the expansion of the administrative set up in the Govt. of NCT of Delhi has been sudden and vast, and the number of Cadre posts of DANICS entry level created, and sanctioned by the Ministry of Home Affairs, Govt. of India, has not kept pace with the expansion in requirement of equivalent level of officers. For example, if the requirements of the Govt. of NCT of Delhi of posts carrying higher responsibilities and scale of pay equivalent to the DANICS Cadre entry level posts may be taken as 300 or 400, the Ministry of Home Affairs, Govt. of India, has sanctioned say only 100 DANICS Cadre entry level posts. Therefore, he explained that in order to man the posts concerned, the respondent-Govt. of NCT of Delhi declares all the other such remaining posts to be ex-cadre DANICS posts, even though they have got nothing to do with the sanctioned DANICS Cadre posts, and then the GNCTD makes ad hoc promotions for such so-called ex-cadre DANICS posts on an emergent and ad hoc basis, through orders such as Annexure-5/Colly. He conceded that though this may not amount to the conferment of DANICS Cadre service upon the incumbents so promoted on ad hoc basis by virtue of the nomenclature of these posts being called as ex-cadre DANICS posts, but by virtue of their carrying higher pay scale and higher responsibilities, these posts are later on converted into the regular DANICS Cadre posts, against which recruitment, selection and posting is done by the Ministry of Home Affairs, Govt. of India,, which is not a respondent before this Tribunal in this OA. Since even such ad hoc and emergent basis promotions carry higher perquisites, and eligibility for better housing accommodation, as compared to DASS Grade-I service officers, the learned counsel for the applicant vehemently argued that the applicant having been left out from consideration for even such ex-cadre DANICS posts amounts to a gross discrimination against the applicant. He had further pointed out that the orders in OA No. 3898/2011 dated 30.11.2011 had stated in Paragraph-4 of the order as follows:-
4. In view of the above position, this OA is allowed. Consequently, respondents are direct to immediately consider the applicant for promotion to the ex cadre post of DANICS on ad hoc and emergent basis. If the applicant is otherwise qualified, they shall issue order of promotion to him notionally with effect from the date his junior has been promoted, with all consequential benefits except arrears of pay and allowances. The aforesaid directions shall be complied with, within a period of two months from the date of receipt of a copy of this order failing which they will be liable to pay him the pay and allowances attached to the ex cadre post of DANICS from the expiry of the aforesaid period. There shall be no order as to costs.
17. He had further pointed out that in OA No.3986/2011, in orders dated 13.12.2011, in similar facts, the following orders had been passed:-
5. In view of the above position, this OA is allowed. The respondents shall re-consider the case of the applicant for promotion to DANICS and he shall be promoted accordingly, if he is found otherwise suitable. In that case he shall be given promotion along with the officials who have already been promoted vide the impugned order No.467 dated 19.10.2011 with all consequential benefits except backwages. As the appointment itself is on emergent and ad hoc basis and it is initially for a period of six months, the respondents shall ensure that the aforesaid direction shall be complied with, within a period on one month from the date of receipt of a copy of this order. There shall be no order as to costs.
18. Similarly, he had pointed out that the orders in OA No. 4054/2011 dated 13.12.2011 also, similar orders have been passed vide Paras 6 & 7 of that order, in respect of appointment to ex-cadre posts of DANICS on ad hoc basis, which states as follows:-
6. We have also perused the minutes of the aforesaid Screening Committee dated 28.9.2011. The said Committee on the basis of Matrix Statements/Evaluation Sheets reflecting gradations of ACRs, Integrity and Vigilance Status, selected/recommended 107 officers (78 General, 29 SC) for appointment to ex-cadre posts on ad-hoc basis as per their names in the Seniority giving due representation to SC candidates (Annexure X). The recommendations in respect of 06 candidates have been subject to availability of IC/Clearance from ACB (Annexure Y). The Screening Committee could not make recommendation in respect of 73 feeder category officers (Annexure Z) who have either retired/not clear from vigilance/non-availability of IC/VC/ACRs. The applicant is included in the aforesaid list of 73 feeder category officers with the remarks that not clear from vigilance angle. No specific reasons have been given by the respondents as to how and why the applicant was not free from vigilance angle. The only reason given by them in the reply to this OA is that he has imposed with the penalty of censure vide Memo dated 18.8.2011. However, there is no explanation to the effect that the aforesaid penalty of censure was actually considered by the Screening Committee while assessing his suitability for promotion.
7. We, therefore, dispose of this OA with the directions to the respondent No.2 to re-convene the Screening Committee to take a considered view in the matter in terms of the Department of Personnel & Trainings letter dated 9.3.2000 as clarified by the said Departments OM No.22011/2/78-Estt.(A) dated 16.2.1979 and to convey its decision of to the applicant. The aforesaid directions shall be complied with immediately but in any case within one month from the date of receipt of a copy of this order. There shall be no order as to costs.
19. He had also pointed out that in OA No.390/2012 decided with OA No.496/2012 and OA No.497/2012, in which orders were pronounced on 11.04.2012, the Bench had, in respect of the same impugned orders, given the following directions:-
8. We, therefore, allow these OAs and direct the respondents to re-consider the case of the applicants for promotion to DANICS and they shall be promoted accordingly, if they are found otherwise suitable. In that case, they shall be given promotion along with the officials who have already been promoted vide the impugned order No.467 dated 19.10.2011 with all consequential benefits except backwages. As the appointment itself is on emergent and on ad hoc basis and it is initially for a period of six months, the respondents shall ensure that the aforesaid direction shall be complied with immediately but in any case within a period of one month from the date of receipt of a copy of this order. There shall be no order as to costs. (Emphasis supplied)
20. He also pointed out that the orders in OA No.3974/2012 with OA No. 3976/2012 pronounced on 27.11.2012 had also issued the following directions through Paras 4 & 5 of the order as follows:-
4. In view of the above position, we dispose of this OA with the direction to the respondents to consider the applicants for promotion and to promote them to the ex-cadre post of DANICS, if there are no valid reasons for not doing so. In case, they are found eligible for promotion as in the case of their seniors and juniors who have since been promoted and they have not been promoted by mistake, they shall also be promoted from the date their immediate junior has been promoted with all consequential benefits except back wages, within 15 days from the date of receipt of a copy of this order. In case, the applicants have been found not eligible for promotion, they shall be informed of the reasons, within the aforesaid period of time. However, on reconsideration, if they are found eligible for promotion and they have not been promoted on account of any mistake or for any reasons not attributable to them, and still they are not promoted within the aforesaid period, they will be entitled for payment of salary of the promotional post from the date of expiry of 15 days as stated above.
5. With the aforesaid directions, these OAs are disposed of. There shall be no order as to costs.
DASTI.
21. The learned counsel for the applicant had also relied upon the Honble Delhi High Court judgment pronounced on 03.09.2012 in W.P. (C ) No.4322/2012 Government of NCT of Delhi & ors. vs. Anil Kaushal, but it appears that the judgment in that case was not fully on all fours with the instant case. However, the facts of the instant case were on all fours with the case in OA No.646/2012, in which the orders of this Tribunal were pronounced on 26.09.2012 as reproduced in Para/9 above.
22. It is noticed that the same Bench, speaking through two different Members, has in OA No.390/2012 with OA No.496/2012 and OA No.497/2012 held on 11.04.2012 as reproduced in Para-19/above, and speaking through another Member, in which one of us was a Member in OA No.646/2012 held on 26.09.2012 differently, as reproduced in Para-9/ above. Therefore, the issue is as to which these two judgments lays down the correct proposition of law, because when the 2nd order dated 26.09.2012 was passed in OA No.646/2012, the earlier order dated 11.04.2012 in OA No.390/2012 with OA No.496/2012 & OA No.497/2012 was not noticed, as also the orders in the other OAs as mentioned in Para 20/above were also neither mentioned nor noticed.
23. The issue, therefore, remains as to whether any such appointments of Grade-I DASS officers, which are clearly stated to be on adhoc and emergent basis against DANICS ex-Cadre posts, which posts have been suo-moto declared by the Govt. of NCT of Delhi, without any approval from the Ministry of Home Affairs, the Cadre Controlling Authority of DANICS Cadre, to be equivalent to DANICS Cadre posts, since they are supposedly carrying higher responsibilities, and fetch some perquisites, and that such ad hoc and emergent promotions being ordered for six months, or till further orders, or till the posts are filled up on regular basis, actually amounts to an order of promotion or not, and as to whether the judgment and order dated 11.04.2012 was the correct law, or the judgment dated 26.09.2012 laid down the correct law, is the issue to be decided.
24. The matter may, therefore, be placed before the Honble Chairman on administrative side for consideration of constitution of a Larger Bench to consider this matter.
2. Facts in the present case: On 14.08.1986, the applicant was initially appointed as Grade-II/Delhi Administration Subordinate Services (DASS for short) in the respondent department. On 28.03.1995, he was promoted to DASS Grade-I. While he was posted in the said capacity in the Directorate of Education, Government of NCT of Delhi, he was Charge-sheeted vide Memorandum dated 21.02.2006. Thereafter, vide order dated 18.05.2009, he was imposed with the penalty of reduction to the lower post of Grade-II of DASS (Head Clerk) with immediate effect until he was found fit by the competent authority to be restored to the higher post of Grade I DASS. On appeal, the Appellate Authority, vide its order dated 09.09.2010, reduced the aforesaid penalty in time scale of pay by two stages for a period of two years, with further directions that during the currency of penalty he will not earn his future increments of pay and after expiry of this period, the reduction will have the effect of postponing his future increments of pay. As the order of the Disciplinary Authority got merged with the order of the Appellate Authority, the currency of the punishment was over by 18.05.2011.
3. During the pendency of the aforesaid disciplinary proceedings in the year 2006, he along with others in the Seniority List of DASS Grade-I was considered for ad hoc promotion to the ex-cadre posts of DANICS by the Screening Committee but due to the pendency of the aforesaid disciplinary proceedings, he was not promoted and his case was kept in sealed cover. However, his juniors have been promoted. Again, vide order dated 14.11.2012, many of his juniors have been promoted. Relying upon the instructions of the Department of Personnel & Training issued vide O.M. dated 21.11.2002, he submitted that the respondents were expected to consider his case in the DPC held immediately after 18.05.2011. The relevant part of the said O.M. reads as under:-
17.6.2 If any penalty is imposed on the Government servant as a result of the disciplinary proceedings or if he is found guilty in the criminal prosecution against him, the findings of the sealed cover/covers shall not be acted upon. His cases for promotion may be considered by the next DPC in the normal course and having regard to the penalty imposed on him.
He has also pointed out that, as per the instructions issued by the Govt. of India vide DoP&Ts O.M. No.28036/2/98-Estt. (D) dated 23.02.1999, in cases of promotions also, Sealed Cover Procedure prescribed in their earlier OM No.22011/4/91/Estt. (A) dated 14.09.1992 was required to be followed at the time of consideration for ad hoc promotion, in the cases of Government servants-
(i) who are under suspension;
(ii) in respect of whom a charge-sheet has been issued and the disciplinary proceedings are pending; and
(iii) in respect of whom prosecution for a criminal charge is pending.
But the respondents did not consider his case for promotion in any of the DPCs convened after the currency of the penalty was over. He has, therefore, submitted that, in any case, he could not have been denied consideration for ad hoc promotion in the year 2012 when his juniors have been promoted on 14.11.2012. He has also submitted that the Services Department of respondents themselves, vide their letter dated 19.03.2012, asked all the concerned Head of Departments of the Govt. of NCT of Delhi to initiate the process for appointment of the left out Grade-I (DASS)/Reporters/Urdu Officer etc, against the ex-cadre post of DANICS on ad hoc and emergent basis. They were also requested to furnish their ACRs for the last five years (2005-2007, 2007-2008, 2008-2009, 2009-2010, 2010-2011), Work & Conduct and Integrity Certificate and Vigilance report as per the list attached. The Departments were also required to furnish other details of those officers such as their dates of birth, complete names of the officers, their dates of appointment in respective grade etc. certified on the basis of the record. Though the applicants name was also included at Sl. No.9 in the list of 64 such officers whose cases have been left out for ad hoc promotion, his name was not placed before the DPC. He has, therefore, filed this Original Application seeking a direction to the respondents to consider his case and promote him on adhoc basis to the ex-cadre posts equivalent of DANICS w.e.f. 19.10.2011 and if in the event he is not found fit on the said date, then w.e.f. 14.11.2012 and grant all benefits consequent thereto to him as being given to his juniors consequent to their promotion vide order dated 19.10.2011 or 14.11.2012 (as the case may be).
4. Learned counsel for the applicant has submitted that this Tribunal has adjudicated and granted relief in similar/identical cases. In this regard he has relied upon the order of the Coordinate Bench of this Tribunal in OA No.4529/2011- Anil Kaushal vs. Govt. of NCT of Delhi & Ors. The relevant facts in the said OA were as under:-
(i) The applicant, Anil Kaushal, is a Grade-I (DASS) Officer, which is a feeder cadre for promotion to the ex-cadre post of DANICS. The promotion to the post of DANICS is made under the aegis of Ministry of Home Affairs, Government of India as per the seniority in the feeder cadre.
(ii) On 06.04.2011, the Services Department of the applicant initiated the process for making appointments against the ex-cadre posts of DANICS on ad hoc and emergent basis, and for this purpose the heads of various Government departments were asked to provide ACRs of eligible Grade-I (DASS) Officers.
(iii) The Services Department of the applicant once again circulated a list vide its communication dated 25.07.2011, through which the relevant ACRs of eligible Grade-I (DASS) Officers were requisitioned at the earliest.
(iv) The said list dated 25.07.2011 contained the name of the applicant at Serial No.79, thereby indicating that he fell in the zone of consideration.
(v) However, on 19.10.2011, the applicant, vide order bearing No.467 made 106 appointments to the ex-cadre posts of DANICS on ad hoc and emergent basis. In the said order the name of the applicant was left out, although his immediate juniors were promoted.
Vide order dated 23.03.2012, this Tribunal allowed the aforesaid O.A. directing the respondents to hold a review Departmental Promotion Committee (DPC) in order to consider the applicant for promotion to the ex-cadre post of DANICS on ad hoc and emergent basis from the date his juniors were so promoted. The respondents challenged the aforesaid order before the High Court of Delhi vide WP (C) No.4322/2012- Govt. of NCT of Delhi & Ors. vs. Anil Kaushal and High Court dismissed it vide judgment dated 03.09.2012. The concluding part of the said order reads as under:-
18. In the present case it is observed that neither charge-sheet had been issued to the respondent nor was he placed under suspension prior to the meeting of the DPC on or before 19.10.2011. The charge-sheet was only issued to the respondent later on 27.10.2011. Therefore, it is obvious that the respondent was not under the cloud of any order of suspension or orders initiating disciplinary proceedings or criminal proceedings on the date on which the DPC held its meeting and submitted its recommendations, i.e., 19.10.2011.
19. In view of the above the present petition is devoid of merit and is hereby dismissed. There shall be no order as to costs.
5. He has also relied upon the order of another Coordinate Bench in O.A. No.390/2012 and connected cases-Manjeet Singh vs. Govt. of NCT of Delhi decided on 11.04.2012. The relevant part of the said order reads as under:-
7. We have heard the learned counsel for the applicants Shri Ajesh Luthra and the learned counsel for the respondents Shri Vijay Pandita. We have no hesitation in our mind that the case of the applicants is fully covered by the judgment of the Apex Court in K.V. Janakiramans case (supra) as regards pendency of the FIRs in different Police Stations and the contemplation of the disciplinary proceedings against them are concerned. The non-availability of the ACRs also cannot be considered as a valid reason for denying promotion to the applicants in view of the aforesaid policy of the Government itself. It is not the case of the respondents that the applicants were in any way responsible for not making available the ACRs for the period in question. Moreover, the impugned order in these O.As as well as O.A 3898/2011 and O.A 3986/2011 is the same.
8. We, therefore, allow these OAs and direct the respondents to re-consider the case of the applicants for promotion to DANICS and they shall be promoted accordingly, if they are found otherwise suitable. In that case, they shall be given promotion along with the officials who have already been promoted vide the impugned order No.467 dated 19.10.2011 with all consequential benefits except backwages. As the appointment itself is on emergent and on ad hoc basis and it is initially for a period of six months, the respondents shall ensure that the aforesaid direction shall be complied with immediately but in any case within a period of one month from the date of receipt of a copy of this order. There shall be no order as to costs.
6. Again in OA No.3974/2012 with connected cases - Raj Kumar Saini vs. Govt. of NCT of Delhi & Another, this Tribunal held as under:-
2. The applicants are Grade-I (DASS) Officers. By the impugned Annexure-A/1 order dated 14.11.2012, the Competent Authority has promoted several Grade-I (DASS) Officers, including seniors and juniors of the applicants, on adhoc and emergent basis to the ex-cadre post of DANICS carrying higher responsibilities, for a period of six months or till further orders and the applicant has been left out.
3. According to the applicants, there are absolutely no reasons whatsoever for not considering them for promotion. They have specifically stated that they are neither under suspension nor any departmental proceeding or criminal cases have been initiated or pending against them.
4. In view of the above position, we dispose of this OA with the direction to the respondents to consider the applicants for promotion and to promote them to the ex-cadre post of DANICS, if there are no valid reasons for not doing so. In case, they are found eligible for promotion as in the case of their seniors and juniors who have since been promoted and they have not been promoted by mistake, they shall also be promoted from the date their immediate junior has been promoted with all consequential benefits except back wages, within 15 days from the date of receipt of a copy of this order. In case, the applicants have been found not eligible for promotion, they shall be informed of the reasons, within the aforesaid period of time. However, on reconsideration, if they are found eligible for promotion and they have not been promoted on account of any mistake or for any reasons not attributable to them, and still they are not promoted within the aforesaid period, they will be entitled for payment of salary of the promotional post from the date of expiry of 15 days as stated above.
5. With the aforesaid directions, these OAs are disposed of. There shall be no order as to costs.
DASTI.
7. Based on the aforesaid order, another Coordinate Bench of this Tribunal also in OA No. 1299/2013- Sanjay Jha vs. Govt. of NCT of Delhi vide its order dated 18.07.2013 decided as under:-
Heard both the sides.
2. The applicant belongs to Grade-I DASS cadre, and by Annexure A/1, Order dated 14.11.2012, the respondents promoted juniors to the applicant against the ex-cadre post of DANICS on ad hoc and emergent basis, however, ignoring the claim of the applicant. It is the specific case of the applicant that his ACRs were not furnished to the Screening Committee when his case was considered, and in view of the same and in view of the judgments of this Tribunal in a number of identical matters, he is entitled for consideration of his case for promotion to the post of DANICS with effect from the date from which his juniors were promoted.
3. The respondents neither by way of counter nor by way of oral submissions denied the fact or law and also that the applicant is similarly placed like the applicants in the identical OAs, one such judgment is in OA 3974/2012 dated 27.11.2012.
4. In the circumstances, this OA is also allowed directing the respondents to consider the case of the applicant for promotion to the ex-cadre post of DANICS, if he is otherwise found eligible with effect from the date from which his juniors were promoted with all consequential benefits without back wages within 15 days from the date of receipt of a certified copy of this order. No order as to costs.
8. Again this Tribunal allowed OA No.1880/2013- Ms. Reena Jain vs. Govt. of NCT of Delhi vide its order dated 25.11.2013 with the similar directions as in OA No.3974/2012 (supra). The relevant part of the said order reads as under:-
2. The applicant belongs to Grade-I DASS cadre, and by order dated 14.11.2012 (Annexure A/1), the respondents promoted juniors to the applicant against the ex-cadre post of DANICS on ad hoc and emergent basis, however, ignoring the claim of the applicant. It is the specific case of the applicant that her ACRs were not furnished to the Screening Committee when her case was considered, and in view of the same and in view of the judgments of this Tribunal in a number of identical matters, she is entitled for consideration of her case for promotion to the post of DANICS with effect from the date from which her juniors were promoted.
3. The respondents neither by way of counter nor by way of oral submissions denied the fact or law and also that the applicant is similarly placed like the applicants in the identical OAs, one such judgment is in OA 3974/2012 dated 27.11.2012.
4. In the circumstances, this OA is also allowed directing the respondents to consider the case of the applicant for promotion to the ex-cadre post of DANICS, if she is otherwise found eligible with effect from the date from which her juniors were promoted with all consequential benefits without back wages within 15 days from the date of receipt of a certified copy of this order. No order as to costs.
9. OA No.1879/2013-Mr. Raghuvinder Singh Rahil vs. Govt. of NCT of Delhi has also been allowed on similar lines vide order dated 28.11.2013. The relevant part of the said order reads as under:-
2. Mr. Ajesh Luthra, learned counsel for applicant submitted that if the concerned Department could not discharge its part of duty required in terms of the procedure, the applicant cannot be put to loss. He relied upon the recent Order of this Tribunal passed in Sanjay Jha v. Govt. of NCT of Delhi & another (O.A.No.1299/2013) decided on 18.7.2013. The relevant excerpt of the said Order reads thus:
14. In the circumstances, this OA is also allowed directing the respondents to consider the case of the applicant herein for promotion to the ex-cadre post of DANICS, if he is otherwise found eligible with effect from the date from which his juniors were promoted with all consequential benefits without back wages within 15 days from the date of receipt of a certified copy of this order. No order as to costs.
3. Learned counsel for applicant also made a reference to paragraph 4.15 of the Original Application wherein a reference has been made to certain Original Applications decided by this Tribunal dealing with the identical issues. The said paragraph reads as under:
4.15 That this Honble Tribunal has adjudicated and granted relief in similar/ identical cases where last year i.e. 2011, the same wrong was committed by the respondents in respects to the officers belonging to the same stream having higher seniority than the applicant vide various OAs viz. OA No.3898/2011, OA 3986/2011, 4054/2011, 390/2012, 496/2012, 497/2012. The said orders have been implemented also. Copies of various orders of this Honble Tribunal in the above noted OAs are annexed herewith as Annexure A/9 (Colly). Copies of implementation orders in few such cases is also annexed herewith as Annexure A/10 (Colly). However, in one case i.e. Anil Kaushals case, the respondents did challenge the order vide CWP No.4322/2012 before Honble Delhi High Court however, the CWP was dismissed vide order dated 03.09.2012 (Annexure A/11).
4. It is also submitted that so far approximately 20 Original Applications involving the issue raised in the present Original Application have been decided by this Tribunal. Mr. Vijay Pandita, learned counsel for respondents could not draw any distinction between the cases referred to by Mr. Luthra and present Original Application.
5. In Sub Inspector Rooplal & another v. Lt. Governor through Chief Secretary, Delhi & others, (2000) 1 SCC 644, the Honble Apex Court has observed as follows:
12. At the outset, we must express our serious dissatisfaction in regard to the manner in which a Coordinate Bench of the tribunal has overruled, in effect, an earlier judgment of another Coordinate Bench of the same tribunal. This is opposed to all principles of judicial discipline. If at all, the subsequent Bench of the tribunal was of the opinion that the earlier view taken by the Coordinate Bench of the same tribunal was incorrect, it ought to have referred the matter to a larger Bench so that the difference of opinion between the two Coordinate Benches on the same point could have been avoided. It is not as if the latter Bench was unaware of the judgment of the earlier Bench but knowingly it proceeded to disagree with the said judgment against all known rules of precedents. Precedents which enunciate rules of law form the foundation of administration of justice under our system. This is a fundamental principle which every Presiding Officer of a Judicial Forum ought to know, for consistency in interpretation of law alone can lead to public confidence in our judicial system. This Court has laid down time and again precedent law must be followed by all concerned; deviation from the same should be only on a procedure known to law. A subordinate Court is bound by the enunciation of law made by the superior Courts. A coordinate Bench of a Court cannot pronounce judgment contrary to declaration of law made by another Bench. It can only refer it to a larger Bench if it disagrees with the earlier pronouncement. This Court in the case of Tribhuivandas Purshottamdas Thakur v. Ratilal Motilal Patel, (1968) 1 SCR 455 : (AIR 1968 SC 372) while dealing with a case in which a Judge of the High Court had failed to follow the earlier judgment of a larger Bench of the same Court observed thus (para 11 of AIR) :-
"The judgment of the Full Bench of the Gujarat High Court was binding upon Raju, J. If the learned Judge was of the view that the decision of Bhagwati, J. in Pinjare Karimbhai's case (1962 (3) Guj LR 529) and of Macleod, C.J., in Haridas's case (AIR 1922 Bom 149) did not lay down the correct law or rule of practice, it was open to him to recommend to the Chief Justice that the question be considered by a larger Bench. Judicial decorum, propriety and discipline required that he should not ignore it. Our system of administration of justice aims at certainty in the law and that can be achieved only if Judges do not ignore decisions by Courts of coordinate authority or of superior authority. Gajendragadkar, C. J. observed in Lala Bhagwan v. Ram Chand, (AIR 1965 SC 1767).
"It is hardly necessary to emphasis that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single Judge, need to be re-considered, he should not embark upon that enquiry sitting as a single Judge, but should refer the matter to a Division Bench, or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety."
13. We are indeed sorry to note the attitude of the tribunal in this case which, after noticing the earlier judgment of a coordinate Bench and after noticing the judgment of this Court, has still thought it fit to proceed to take a view totally contrary to the view taken in the earlier judgment thereby creating a judicial uncertainty in regard to the declaration of law involved in this case. Because of this approach of the latter Bench of the tribunal in this case, a lot of valuable time of the Court is wasted and the parties to this case have been put to considerable hardship.
6. Being bound by the view taken by the coordinate Benches, we dispose of the present Original Application with direction to the respondents to consider the case of the applicant herein for promotion to the ex-cadre post of DANICS, if he is otherwise found eligible with effect from the date from which his juniors were promoted with all consequential benefits without back wages within 15 days from the date of receipt of a copy of this order. No costs.
10. However, the very same Coordinate Bench which allowed OA No.390/2012 and connected cases (supra) while considering OA No.646/2012 Ravinder Pal Singh vs. Govt. of NCT of Delhi took slightly different view and held as under:-
2. The applicant is feeling aggrieved because he has been left out of that initial list, in spite of his service record being outstanding, and there being no departmental proceedings pending or contemplated against him. He has submitted that even some of his juniors have also already been appointed on an ad hoc and emergent basis in the ex-Cadre posts of DANICS, while he has been left out of the same. He also submitted a representation to the respondents to consider his case as well, but without attending to the same, the respondents had issued an ad-hoc placement orders of two of his juniors also against ex-Cadre posts of DANICS, because of which he has approached this Tribunal. He has taken the ground that because of his non-promotion, he is suffering great mental agony and loss of status, causing social stigma, and monetary loss. In the result, he has prayed for the following reliefs:-
a) quash and set aside the impugned order and/or
b) direct the respondents to immediately consider the applicant for promotion and to promote him to the ex-cadre post of DANICS on adhoc and emergent basis w.e.f. the date his immediate junior has been so promoted with all consequential benefits.
c) award costs of the proceedings and
d) pass any other order/direction which this Honble Tribunal deem fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case.
3. In their counter reply, the respondents pointed out two things. Their first contention was that the applicant cannot claim an ad-hoc promotion as a matter of right, due to the fact that while granting such ad-hoc promotions, some officers are given higher duties and responsibilities, and neither the seniority nor the pay of the applicant is affected by that. It was, therefore, submitted that since his claim for substantive promotion has not been overlooked, the OA cannot be entertained. In stating so, respondents had relied upon the case law in State Bank of India vs. Mohd. Myuddin : 1987 (4) SCC 486, State of Madhya Pradesh v. Srikant Chaphekar, 1992 (5) SLR (SC) 635, Indian Airlines Corporation v. K.C. Shukla, (1993) 1 SCC 17, Bishan Swaroop Vs. Union of India : 1974 SC 1618 and Syed Khalid Rizvi v. Union of India, (1993) Suppl. 3 SCC 575.
4. The second contention taken by the respondents was that promotions to the higher posts on the basis of merit can be given only by consideration of the respective cases by the DPC, after assessing the service records of the officers in the zone of consideration, and that it was not the function of this Tribunal to indulge in such an exercise, and the instant application is, therefore, only an abuse of the process of law.
5. However, recognizing the merit in the case of the applicant, the respondents had also mentioned that his case could not be considered in the first round of the exercise of persons being placed against the ex-cadre post of DANICS because his ACRs for the year 2008-09, for the period from 01.04.2009 to 14.09.2009, and for the year 2010-11, had till then not been received from the office of Divisional Commissioner, Govt. of NCT of Delhi. It was also mentioned that the process has again been initiated now, on 19.03.2012, through Annexure R-1, for the appointment of the 64 left out Grade-I (DASS) officers, and other similarly situated officers, against the ex-cadre post of DANICS on similar ad-hoc and emergent basis, and that the name of the applicant is also mentioned at Sl. No.29 in the said list, and that a meeting of the Screening Committee will be conducted as and when the requisite documents in respect of the concerned persons are received.
6. It was further submitted that the applicant has rushed to this Tribunal prematurely, without appreciating the action already initiated by the respondents regarding the consideration of his case. In the result, they had prayed that the OA is not maintainable, and is liable to be dismissed, with costs, and also that the applicant is not entitled for any Interim Relief.
7. The applicant filed a rejoinder more or less reiterating his case and submitted that even four more of his juniors had since been, in the meanwhile, similarly promoted, but that his case has still been left out, and that the stand of the respondents, therefore, cannot be countenanced in law.
8. Heard. The case was argued vehemently by the learned counsel for both the sides.
9. It appears to us also that the applicant has perhaps jumped the gun, and not allowed the respondents to complete the process of according ad-hoc promotions against the ex-Cadre posts of DANICS to all the eligible DASS Grade-I officers, in which his name was also included as per Annexure R-1 dated 19.03.2012. The respondents have nowhere stated that the applicant is not eligible for promotion, and, therefore, it is obvious that as soon as his records are received, they would give a fair consideration to his case.
10. It is trite law that an ad-hoc promotion against an ex-Cadre post does not give rise to any right of seniority to anybody, and just because of having officiated an on ad-hoc and emergent basis against any ex-Cadre posts in DANICS, his juniors will not become seniors to him, as per the settled case law in this regard. In fact, as has been held by the Honble Apex Court in the case Chief of Naval Staff and anr. vs. G.Gopalakrishna Pillai & Ors., (1996) 1 SCC 521, even an ad-hoc appointment within ones own Cadre itself, against a senior post, without selection by a regularly constituted selection body, even though it may have been uninterruptedly followed by regularization in the same post, does not count towards seniority against that higher post.
11. Therefore, we see no reason to set aside the impugned order dated 19.10.2011, by which 106 officers of DASS were so appointed on an ad- hoc and emergent basis, against the ex-Cadre posts in DANICS, for a limited period of six months, or till further orders, or till the posts are filled up on a regular basis.
12. It is obvious from the reply filed by the respondents that as and when the posts in the DANICS are being substantively filled up on a regular basis, after conducting the DPC in this regard, the case of the applicant would be given due weightage by the respondents.
13. In the result, while the OA cannot succeed, but respondents are directed to consider the case of the applicant, to entrust him also, if possible, a similar ad-hoc and emergent basis temporary promotion against any ex-Cadre post of DANICS, if so allowed by the Rules, after conducting a meeting of the Screening Committee, keeping in view the fact that his seniors and some of his juniors have been so promoted temporarily already.
14. With these observations, the O.A. is disposed of, but there shall be no order as to costs.
11. The learned counsel for the applicant Shri Ajesh Luthra has also relied upon the judgment of the Honble Apex Court in the case of State of Uttaranchal and Another vs. Sri Shiv Charan Singh Bhandari and others JT 2013 (12) SC 269, wherein it has been held as follows:-
12. It can be stated with certitude that when a junior in the cadre is conferred with the benefit of promotion ignoring the seniority of an employee without any rational basis the person aggrieved can always challenge the same in an appropriate forum, for he has a right to be considered even for ad hoc promotion and a junior cannot be allowed to march over him solely on the ground that the promotion granted is ad hoc in nature. Needless to emphasize that if the senior is found unfit for some reason or other, the matter would be quite different. But, if senior incumbents are eligible as per the rules and there is no legal justification to ignore them, the employer cannot extend the promotional benefit to a junior on ad hoc basis at his whim or caprice. That is not permissible.
12. The respondents in their reply have submitted that the applicant cannot claim ad hoc promotion as a matter of right as neither his seniority nor his pay is effected. They have also stated that by granting ad hoc promotion, the promotees are given higher duties and responsibilities. As far as regular promotions to the DANICS Cadre are concerned, it is granted by the Ministry of Home Affairs and not by the Govt. of Delhi. They have also relied upon the order of this Tribunal in OA No.646/2012 Ravinder Pal Singh vs. Govt. of NCT of Delhi dated 26.09.2012 (supra).
13. Further, they have relied upon the judgment of the Honble Apex Court in the case of State Bank of India and Others vs. Mohd. Mynuddin (supra), wherein it has been held as under:-
The promotion to higher post on the basis of merit cannot be given even if juniors have been promoted and the Tribunal cannot function/Act as DPC and cannot access the service records.
14. They have also relied upon the judgment in the case of Bishan Sarup Gupta etc. vs. Union of India & Ors. AIR 1974 SC 1618, wherein it has been held as under:-
17. When considering this point it must be clearly understood that this court is not concerned with Govt.'s policy in recruiting officers to any service. Government runs the service and it is presumed that it knows what is best in the public interest. Government knows the caliber of candidates available and it is for the Government to determine how a particular service is to be manned - whether by direct recruits or by promotees or by both and, if by both, what should be the ratio between the two sources having regard to the age factor, experience and other exigencies of service. Commissions and Committees appointed by the Government may indeed give useful advice but ultimately it is for the Government to decide for itself. In the particular service with which we are concerned, viz. that of class I Income-tax Offices, Government had known for many years that there was a lot of discontent amongst the officers. The promotees were clamoring for a higher proportion of posts in the cadre while the direct recruits were chafing against the seniority rule which gave promotees 2 to 3 years' seniority over the direct recruits. To begin with, the promotees had been given only 20% of the vacancies but that was raised later on to 33 1/3%. The department was fast expanding and more officers in class I who could immediately take up assessment work were required. Senior Class II officers who had the necessary experience were always available. On the other hand, class I officers, directly recruited, did not obtain this experience for about 2 to 3 years. Therefore , though direct recruitment was made from year to year, the department had to promote more officers from class II to class I and this was the reason why there was a spill over of 73 promotees officers on 16-1-1959. In the course of next 3 years 214 promotees had to be appointed after upgrading a similar number of posts. Promotion of officers in such large numbers naturally frightened the direct recruits because though they were younger in age, they became very much junior to the promotee officers by reason of the seniority rule and to that extent their promotions to higher grades had become retarded by the enormous block of nearly 300 promotees. The discontent amongst the direct recruits had been noted by the Government even as far back as 1937 and the Government's anxiety in this respect is reflected in the letter No. 24/2/60 Ad. VI dt. 17-2-1960 to the Union Public Service Commission. In order to allay the discontent in the service and having regard to the expansion of the department, Government suggested that the quota for the promotees should be raised from 33 1/3% to 50% on the one hand, and weightage given to them under the old seniority rule should be removed, on the other. That letter gives a clear indication of the thinking of the Ministry in this respect. But unfortunately the suggestion was not accepted by the U.P.S.C. then and the whole problem was allowed to drift.
15. Respondents department, vide letter dated 19.03.2012 informed the concerned Head of Department that the department was considering to initiate the process for appointment of left out Grade-I (DASS) against the ex-cadre post of DANICS on ad hoc and emergent basis carrying higher duties and responsibilities to furnish the upto date ACRs for the last five years Work & Conduct and Integrity Certificate and Vigilance Report in respect of the officers as per attached list. In the case of the applicant the Directorate of Education vide letter No.F.37(4)/(363)/GOC/EDN /2011/4489-4490 dated 23.04.2012 informed as under:-
(i) a penalty of reduction to the lower post of Grade-II (DASS)/HC with immediate effect until he is found fit by the Competent Authority to be restored to the higher post of Grade-I (DASS) was imposed upon him on 21.5.2009. In appeal, penalty was reduced to reduction in the time scale of pay by two stages for a period of two years with further direction that during the currency of penalty, the appellant will not earn increments of pay and after expiry of this period, the reduction will have the effect of postponing his future increments of pay by Honble LG vide order dated 9.9.2010.
(ii) A case FIR No.58/06 u/s 13(1)(d) r/w 120 B IPC was registered against him by ACB. The case is pending investigation.
(iii) In another case, disciplinary proceedings u/r 14 is yet to be initiated.
16. Further, the DOV vide letter No.99/1/ 2011/1/5800/929 dated 17.05.2012 has also informed as under:-
(i) Case FIR No.58/2006 u/s 13(1)(d) r/w 120 B IPC has been registered against him by the ACB. Case is pending investigation as per ACB vide letter dated 15.09.2011. Not Charge sheeted as draft Charge sheet not received from ACB.
(ii) A proposal for initiation of departmental proceedings against Shri Rakesh Chaudhary is pending in this Directorate for want of certain information/documents from D.C. (NW).
(iii) Charge-sheeted u/r 14 on 14.02.2006. C.S. has imposed the penalty of reduction to the lower post of Grade-II DASS vide order dated 21.5.2009. The penalty of Shri Rakesh Chaudhary was reduced to that of reduction in the time scale of pay by two stages for a period of two years, with further direction that during the currency of penalty, the appellant will not earn his increments of pay and after expiry of this period, the reduction will have the effect of postponing his future increments of pay by Honble LG vide order dated 9.9.2010.
17. Thereafter the respondent-department vide its Order No.30/12/2012/S.I/540 dated 05.10.2012 has appointed the left out Gr.I DASS (who has been cleared from vigilance angle and whose ACRs have been received) against the ex-cadre post of DANICS on ad hoc and emergent basis carrying higher duties and responsibilities whose requisite documents have been received. The applicant was not appointed against the ex-cadre post of DANICS on ad hoc and emergent basis due to non receiving of requisite documents and non clearance from vigilance angle.
18. We have heard the learned counsel for the applicant Shri Ajesh Luthra and learned counsel for the respondents Shri Vijay Pandita. In our considered view, there was no actual difference of opinion between two Coordinate Benches on any point and there was no need for referring this case to a larger Bench as suggested by the Coordinate Bench in this O.A. In Manjeet Singhs case (supra), the grievance of the applicants therein was similar as in this O.A. They were appointed to the ex-cadre post of DANICS but their juniors have been considered and promoted. The reasons given by the respondents for not promoting them were that certain FIRs were filed against them in the Police Station, proposals for initiation of disciplinary proceedings were pending, the ACRs were not made available etc. However, relying upon the judgment of the Apex Court in the case of Union of India & Ors. vs. K.V. Janakiraman AIR 1991 SC 2010, this Tribunal held that pending of FIRs or contemplation of disciplinary proceedings are not sufficient reasons to consider the applicants case. Accordingly, the OA was allowed and the respondents were directed to re-consider his case for promotion as held in the case of Reena Jain (supra).
19. The respondents have been considering all the Grade-I (DASS) for promotion to the ex-cadre post of DANICS on ad hoc and emergent basis. Such promotions were being made purely on seniority basis considering the ACRs for the last five years, Work and Conduct Certificate, Integrity Certificate and Vigilance Report of the officers.
20. In Anil Kaushals case (supra), on 06.04.2011, the Services Department initiated the process for making appointments against the ex-cadre posts of DANICS on ad hoc and emergent basis, and for this purpose the heads of various Government departments were asked to provide ACRs of eligible Grade-I (DASS) Officers. The said Department once again circulated a list vide its communication dated 25.07.2011, through which the relevant ACRs of eligible Grade-I (DASS) Officers were requisitioned at the earliest. In the said list dated 25.07.2011 contained the name of the applicant at Serial No.79, thereby indicating that he fell in the zone of consideration. However, on 19.10.2011, the applicant, vide order bearing No.467 made 106 appointments to the ex-cadre posts of DANICS on ad hoc and emergent basis. In the said order, the name of the applicant was not included, although his immediate juniors were promoted. This Tribunal, vide order dated 23.03.2012, directed the respondents to hold a review Departmental Promotion Committee (DPC) in order to consider the applicant therein for promotion to the ex-cadre post of DANICS on ad hoc and emergent basis from the date his juniors were so promoted. The respondents challenged the aforesaid order before the Honble High Court of Delhi vide W.P. (C) No.4322/2012, it was dismissed vide judgment dated 03.09.2012. Same was the position in the cases of Manjeet Singh (supra), Sanjay Jha (supra), Raj Kumar Saini (supra), Ms. Reena Jain (supra), and Raghuvinder Singh Rahil (supra) etc. The applicant was also considered for such promotion in the year 2006 but he was not given the promotion only for the reason that a disciplinary case was pending against him. There were other Grade-I (DASS) officers who have been left out for promotion for different reasons but their juniors have been promoted. As the currency of the punishment imposed upon by the respondents was over, he has also applied for consideration of his name for such ad-hoc and emergent promotion in response to the Respondent-Departments letter dated 19.03.2012. However, he was not promoted as he was not clear from the vigilance angle for the following reasons:-
(1) a penalty of reduction to the lower post of Grade-II (DASS)/HC with immediate effect until he is found fit by the Competent Authority to be restored to the higher post of Grade-I (DASS) was imposed upon him on 21.5.2009. In appeal, penalty was reduced to reduction in the time scale of pay by two stages for a period of two years with further direction that during the currency of penalty, the appellant will not earn increments of pay and after expiry of this period, the reduction will have the effect of postponing his future increments of pay by Honble LG vide order dated 9.9.2010.
(2) A case FIR No.58/06 u/s 13(1)(d) r/w 120 B IPC was registered against him by ACB. The case is pending investigation.
(3) In another case, disciplinary proceedings u/r 14 is yet to be initiated.
(4) Further, the DOV vide letter No.99/1/ 2011/1/5800/929 dated 17.05.2012 has also informed as under:-
(a) Case FIR No.58/2006 u/s 13(1)(d) r/w 120 B IPC has been registered against him by the ACB. Case is pending investigation as per ACB vide letter dated 15.09.2011. Not Charge sheeted as draft Charge sheet not received from ACB.
(b) A proposal for initiation of departmental proceedings against Shri Rakesh Chaudhary is pending in this Directorate for want of certain information/documents from D.C. (NW).
(c) Charge-sheeted u/r 14 on 14.02.2006. C.S. has imposed the penalty of reduction to the lower post of Grade-II DASS vide order dated 21.5.2009. The penalty of Shri Rakesh Chaudhary was reduced to that of reduction in the time scale of pay by two stages for a period of two years, with further direction that during the currency of penalty, the appellant will not earn his increments of pay and after expiry of this period, the reduction will have the effect of postponing his future increments of pay by Honble LG vide order dated 9.9.2010.
21. In the case of Ravinder Pal Singhs case (supra), this Tribunal did not take any contradictory view. In the said case this Tribunal has only observed that an ad-hoc promotion against an ex-Cadre post does not give rise to any right of seniority to anybody, and just because of having officiated an on ad-hoc and emergent basis against any ex-Cadre posts in DANICS, his juniors will not become seniors to him, as per the settled case law in this regard. Therefore, direction was given to the respondents in that case to consider the case of the applicant, to entrust him also, if possible, a similar ad-hoc and emergent basis temporary promotion against any ex-Cadre post of DANICS, if so allowed by the Rules, after conducting a meeting of the Screening Committee, keeping in view the fact that his seniors and some of his juniors have been so promoted temporarily already.
22. Ordinarily we would have sent this matter to the regular Bench for its disposal but having regard to the nature of the controversy and the fact that this Tribunals approach and decisions in all the earlier cases were similar and it has the stamp of approval by the Honble High Court of Delhi, we are not inclined to prolong this case any further.
23. Consequently, this OA is allowed. Accordingly, we direct the respondents to consider the case of the applicant and promote him on adhoc basis to the ex-cadre posts equivalent of DANICS with retrospective effect from 19.10.2011 and if in the event he is not found fit on the said date, then w.e.f. 14.11.2012 and grant all benefits consequent thereto to him as being given to his juniors consequent to their promotion vide order dated 19.10.2011 or 14.11.2012 (as the case may be). The aforesaid directions shall be complied with, within a period of two months from the date of receipt of a copy of this order. However, we make it clear that his retrospective promotion, if so granted shall be on proforma basis and the actual adhoc promotion will be from the date he takes over the duty of the post of ex-cadre DANICS post.
24. There shall be no order as to costs.
(Ashok Kumar) (A.K. Bhardwaj) (G. George Paracken) Member (A) Member (J) Member (J) cc.