Central Administrative Tribunal - Delhi
D.P. Bambah, S/O Late Shri Chunni Lal vs Union Of India (Uoi) Through The ... on 28 February, 2008
ORDER
M. Ramachandran, J. (Vice Chairman)
1. W.P.C. 9867 of 2005 had been filed by the applicant for quashing a Memorandum dated 23.08.2004 issued by the 5th respondent, Commissioner, Delhi Development Authority. The applicant had put up a request that he was entitled for notional promotion, in view of the circumstance that the charge sheet issued against him, which stood in the way of his promotion, ultimately had been quashed by the High Court but he had nevertheless been advised that claim for promotion to the post of Supdt. Engineer was not tenable. The writ petition had been transferred over to this Tribunal by order-dated 24.10.2007.
2. The applicant was working as Executive Engineer under the respondents during 1996. On 25.07.1996, a charge sheet had been issued to him, which, in turn, obliged the DPC held on 26.07.1996 to keep its recommendations in respect of the applicant in a sealed cover. It is evident that Writ Petition (C) 2943/1996 had been filed challenging the charge sheet. The imputations as against the applicant centered round certain lapses, allegedly of the year 1984. In fact, a Memorandum had been issued to the applicant on 21.03.1994 and a reply had been received at that time. The applicant had pointed out that the new charge sheet was issued wholly for sabotaging his claim for promotion. The High Court held that there was no justification for the respondents in issuing a charge memo, when the Central Technical Examiner had given a report in December, 1984. Consequently, by judgment-dated 22.5.1998, there was a direction to the respondents to open sealed cover placed before the DPC. Orders were to be passed in a prescribed time limit. It is evident that an L.P.A. had been filed, but that stands disposed of on 29.10.2003. Division Bench had dismissed the appeal. According to the applicant, he had thereafter requested that he may be given the benefits if they were admissible from the sealed cover procedure, since his promotability had to be adjudged with reference to the date of DPC. As a matter of fact, his junior had been given benefits of promotion and he could not have been denied such reliefs. It is also pertinent to note that he had attained his age of superannuation on 28.02.1997. Therefore, he could have aspired only for a notional promotion.
3. The application was not, however, favourably considered. The impediment was that prior to his retirement, on 28.02.1997, another charge sheet had been issued to him; inquiry followed and ultimately a penalty had been imposed on him whereby there is a 10% cut effected in his pension for a period of five years. Of course, these proceedings also stated to be separately under challenge. Mr. Gupta, senior counsel, appearing for the applicant, submits that the benefits of the observations made by the Hon'ble Supreme Court in Delhi Jal Board v. Mahinder Singh requires to be extended to the applicant as the case is on all fours with the facts of that case. Learned counsel refers to the Office Memorandum dated 24.02.2003 which highlights the principle that where a second or subsequent departmental proceedings were instituted after promotion of the junior on the basis of the recommendations made by the DPC which kept the recommendation in respect of the Government servant concerned in sealed cover, the benefit on the assessment by the first DPC will be admissible to the Government servant on exoneration of the first inquiry with effect from the date his immediate junior was promoted. Counsel submits that what is crucial and relevant is the date of promotion of his junior, who had been cleared by the same DPC. One Mr. Sajjan, junior of the applicant, had been cleared by the DPC and he was promoted on 9.8.1996. Of course, at that point of time, his assessment was in the sealed cover. But because of the impact of the Supreme Court judgment in Delhi Jal Board (cited supra), a finding by the disciplinary inquiry, would have to be given effect, as if such finding related back to the date on which the charges are framed. When the High Court had quashed the charge sheet, it was to be presumed that as on the date of charge sheet, there was no blemish, which would have interfered with the right of the applicant for promotion. Of course, the judgment had come to be passed finally in the year 2003 but that was of no consequence, as the underlying principle could not have been overlooked.
4. The contention of the respondents, on the other hand, is that the facts of each case have to be duly taken notice of, subject to the observations made by the Hon'ble Supreme Court. The governing office memorandum issued from time to time also required to be followed. Counsel had adverted to office memorandum dated 14.09.1992 (Annexure R-1), and submits that the instructions were fairly clear in paragraph 7 that a Government servant, who is recommended for promotion by the DPC but where a circumstance arise after recommendations before his actual promotion, he would be deemed as a person whose case is kept in a sealed cover and he is not to be promoted until he is completely exonerated from the charges newly framed against him. It is further submitted that the claim that a junior had been promoted is factually incorrect. It is also highlighted that the suggestion that the DPC had deferred consideration unilaterally so as to ensure the disability of the applicant, was also factually incorrect. The counsel submits that what is more important, is the circumstances that the applicant is undergoing a punishment after going through full formalities of the procedure and it cannot be possible for him to press for a claim of promotion. The claims are too technical to be accepted, as the basic consideration would be as to whether a person, who has been subjected to penalty, requires to be recognized as meritorious enough for conferment of a promotion.
5. We have to take notice of a situation that Paragraph 7 of Annexure R-1 as such is not possible to be taken notice of since the same practically has been deleted in view of subsequent office memorandum. The applicant may also be correct in pointing out that after he was cleared by the High Court, the respondents were obliged to take notice of the guidelines prescribed by the office memorandum dated 24.2.2003. But these by itself, according to us, may not be sufficient justification for the Tribunal to adopt a technical approach, without adverting to the real situation that has been presented. The facts of each case require to be deeply gone into as a superficial and blind application of a principle may not be in public interest. We cannot ignore that as a matter of fact a punishment has been imposed on the applicant, which really has to corrode on his claim of promotability. The judgment of the Supreme Court, as also the office memoranda issued from time to time, have to be understood, principally in the factual scenario that might be there in respect of individual cases.
6. There cannot be any dispute possibly capable of being raised on the step taken by the DPC to adopt sealed cover procedure vis-`-vis the claim of the applicant pursuant to the meeting held on 26.07.1996. As a matter of fact, it is explained that in view of the vacancy position, 16 persons required to be considered as coming within the field of choice. The name of the applicant was considered in the said DPC. By that time, a charge sheet had been served on the applicant. The LPA had been finally disposed of on 29.10.2003. But, however, another charge sheet had been issued to the applicant on 21.02.1997. From Annexure P-4 judgment, we could not find that this had been brought to the attention of the Hon'ble High Court. The presence of LPA is also admitted, and the applicant could extricate himself from the charge sheet only on 29.10.2003. Even if it be stated that the benefit of the judgment has to be given to the applicant on a presumption that on the date of charge sheet (25.02.1996), he was to be deemed as a person of unblemished conduct, it will be difficult to carry the said presumption with the actual state of affairs available indefinitely, since on 21.02.1997, a new charge sheet had been issued and the adverse effect of it is still on the applicant since there is a final order of punishment. We are of the view that the judgment of the Supreme Court in Delhi Jal Board (cited supra) is not intended to be applied blindly, as it will at least in the present case lead to unwarranted results, as a person undergoing punishment will have to be directed to be conferred with promotion. The anxiety of the court was always to see that the fate of a person is not left on tenterhooks, by possibility of a punishment, and proceedings were in a fluid stage.
7. Further, the respondents also dispute the claim of the applicant that his junior had been promoted on 09.08.1996. It is submitted that the applicant's immediate junior R.N. Bhagi had been promoted consequent to the DPC clearance, only on 9.4.1997. It is after the issue of the second charge sheet. Although Mr. Sajjan is shown as promoted on officiating basis by Annexure-B, since the full circumstances have not been brought to our attention, we do not think it will be justifiable, to rely on the circumstance that Mr. Sajjan has been promoted as per his turn.
8. In the circumstances, we do not think there is merit in the contentions raised by the applicant. In the matters of promotion, it is well accepted that a person who is under a cloud is not to be conferred with promotion till such time he has been cleared. The Court had indicated always that the proceedings should have some concrete shape. Supreme Court in Union of India v. K.V. Janakiraman as also in Delhi Jal Board (cited supra) had examined certain facets of the issue expressing an anxiety that opportunities for promotion to officers are not to be delayed indefinitely, on the basis that disciplinary proceedings are contemplated or are likely to be instituted. When there is definite material forthcoming to show that as far as the applicant was concerned, although the first charge sheet had been set aside, in the meanwhile, fresh proceedings were initiated against him and he had been subjected to a penalty, according to us, this development automatically leads to a situation where his claims for promotion are to be kept frozen until such time he is cleared of the blemish. The claim of the applicant is that he should be promoted for a period about six months, notionally, but we do not think such rights have been attempted to be established on any sound principles. The yardstick employed by the respondents in issuing Annexure P-1 cannot be characterized as unreasonable or arbitrary. Therefore, the O.A. is dismissed. No order as to costs.