Delhi High Court
D.P. Bambah vs Uoi & Ors. on 20 February, 2016
Author: G. S. Sistani
Bench: G.S.Sistani
$~A-5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C) 7594/2009 & CM 31119/2016
% Date of Judgment: 20th February, 2017
D.P. BAMBAH ..... Petitioner
Through : Mr. S.K. Gupta, Advocate with
Mr.Vikram Singh, Advocate.
versus
UOI & ORS ..... Respondents
Through : Mr. Arun Birbal, Advocate with Mr.
Sanjay Singh, Advocate for DDA.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE VINOD GOEL
G.S.SISTANI, J. (ORAL)
1. Rule DB was issued in this matter on 06.07.2007.
2. Pursuant to an application for early hearing, the writ petition is being taken up for hearing.
3. Challenge in this writ petition is to the order dated 28.02.2008 in T.A. No. 107/2007 of the Central Administrative Tribunal (briefly the „Tribunal‟) whereby the application filed by the petitioner herein has been dismissed.
4. Petitioner claims to be a senior citizen of about 77 years of age. On 05.01.1968, the petitioner was appointed as Junior Engineer in the Delhi Development Authority (DDA) and the petitioner was promoted from time to time. The petitioner was promoted to the post of „Executive Engineer‟ on 04.07.1983. A chargesheet was issued to the W.P. (C) 7594/2009 Page 1 of 9 petitioner on 25.07.1996 initiating disciplinary proceedings against him.
5. During the pendency of the disciplinary proceeding, a DPC was held on 26.07.1996 for the post of „Superintending Engineer (Civil)‟. The petitioner was found eligible and selected, but his name was placed in a sealed cover. In September, 1996, the petitioner approached this court by filing a writ petition, being W.P. (C) 2943/1996, challenging the issuance of the chargesheet inter alia on the ground of delay. By an order of 22.05.1998, a Single Judge of this court quashed the chargesheet and directed the DDA/respondent no. 3 to open the seal cover and pass an order as per the recommendations of the DPC.
6. The DDA preferred an LPA (LPA 39/1999) by the respondent DDA, which was dismissed by a Division Bench of this Court by an order dated 29.10.2003, requiring the respondents to open the sealed cover. Meanwhile, the petitioner superannuated on 28.02.1997. Thereafter, a representation dated 31.10.2003 and reminder 17.11.2003 were made by the petitioner to the DDA for opening the sealed cover and praying for promotion along with consequential benefits. By a communication dated 23.08.2004, the request of the petitioner was declined on the ground that another chargesheet was issued against him on 21.02.1997, i.e. a few days before his retirement. This led to the filing of a second writ petition [W.P. (C) 9867/2005] on 10.02.2005 which was subsequently transferred to the Tribunal and registered as T.A. No. 107/2007. The T.A. was dismissed by the Tribunal on 28.02.2008, which has led to the filing of the present writ petition.
W.P. (C) 7594/2009 Page 2 of 97. Mr. Gupta, learned counsel for the petitioner, submits that the Tribunal has erred both in facts and also in law. He contends that the Tribunal has erred in not appreciating that in the earlier DPC dated 26.07.1996, the petitioner had been promoted but the results were kept in a sealed cover on account of a chargesheet which had been issued. It is contended that once the first chargesheet was quashed and a direction was issued by the Single Judge, the respondent had no choice but to comply with the direction of the Single Judge, which attained finality as LPA filed by the respondent was dismissed by the Division Bench of this court on 29.10.2003. Mr. Gupta contends that once the order of the Single Judge had attained finality, the DDA was duty bound to comply with the same and merely because a second chargesheet was issued, cannot be a ground to deprive the petitioner of his promotion, which was withheld only on account of issuance of the first chargesheet. It is contended that persons junior to him, as is evident upon reading of the seniority list, a copy whereof has been placed on record, have been promoted and the petitioner has been deprived of the benefit of the DPC, in which he has been promoted. Counsel contends that the Tribunal has erred in relying on the O.M. dated 14.09.1992 issued by the Government of India for the reason that the same would not apply to the facts of the present case.
8. Mr. Gupta also contends that this O.M. stands superseded by a subsequent O.M. dated 24.02.2003, which makes it abundantly clear that merely because a subsequent chargesheet has been issued would not deprive an officer of the promotion. The O.M. dated 24.02.2003 reads as under: -
W.P. (C) 7594/2009 Page 3 of 9"No.22011/2/2002 - Estt.(A) Government of India Ministry of Personnel, P.G. & Pensions (Department of Personnel & Training)
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New Delhi, dated the 24th February, 2003 OFFICE MEMORANDUM Sub: Sealed Cover Procedure - Judgment of the Supreme Court in the case of Delhi Jal Board Vs. Mohinder Singh [JT 2002 (10) SC 158].
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The undersigned is directed to refer to para 7 of this Department‟s OM No. 22011/4/91-Estt. (A) dated 14th September, 1992 which envisage as follows: -
"A Government Servant, who is recommended for promotion by the Departmental Promotion Committee but in whose case any of the circumstances mentioned in para 2 above arise after the recommendations of the DPC are received but before he is actually promoted, will be considered as if his case had been placed in a sealed cover by the DPC. He shall not be promoted until he is completely exonerated of the charges against him and the provisions contained in this OM will be applicable in his case also."
2. In the case of Delhi Jal Board Vs. Mohinder Singh the Supreme Court [JT 2000 (10) SC 158] has held as follows: -
"The right to be considered by the Departmental Promotion Committee is a fundamental right guaranteed under Article 16 of the Constitution of India, provided a person is eligible and is in the zone of consideration. The sealed cover procedure permits the question of promotion to be kept in abeyance till the result of any pending disciplinary inquiry. But the findings of the disciplinary inquiry exonerating the officers would have to be given effect to as they obviously relate back to the date on which the charges are framed. ................... The mere fact that by the time the disciplinary proceedings in the first inquiry ended in his favour and by the time the seal was opened to give effect to it, another departmental inquiry was started by the department, would not come in the way of giving him the benefit of the assessment by the first Departmental W.P. (C) 7594/2009 Page 4 of 9 Promotion Committee in his favour in the anterior selection."
3. It is, therefore, clarified that para 7 of the O.M. dated 14th September, 1992 will not be applicable if by the time the seal was opened to give effect to the exoneration in the first enquiry, another departmental inquiry was started by the department against the Government servant concerned. This means that where the second or subsequent departmental proceedings were instituted after promotion of the junior to the Government servant concerned on the basis of the recommendation made by the DPC which kept the recommendation in respect of the Government servant in sealed cover, the benefit of the assessment by the first DPC will be admissible to the Government servant by the first DPC will be admissible to the Government servant on exoneration in the first inquiry, with effect from the date his immediate junior was promoted.
4. It is further clarified that in case the subsequent proceedings (commenced after the promotion of the junior) results in the imposition of any penalty before the exoneration in the first proceedings based on which the recommendations of the DPC were kept in sealed cover and the Government servant concerned is promoted retrospectively on the basis of exoneration in the first proceedings, the penalty imposed may be modified and effected with reference to the promoted post. An indication to this effect may be made in the promotion order itself so that there is no ambiguity in the matter.
5. In so far as the persons serving in the Indian Audit and Accounts Department are concerned these instructions are issued after consultation with the Comptroller and Auditor General of India.
Sd/-
(Smt. Pratibha Mohan) Director"
(Emphasis Supplied)
9. Mr. Gupta also submits that at this stage the petitioner is only restricting his prayer to notional promotion without claiming any benefit of arrears and only pay fixation solely for the purposes of fixation of his pension since the petitioner stands superannuated on 28.02.1997.W.P. (C) 7594/2009 Page 5 of 9
10. Mr. Birbal, learned counsel for DDA has opposed this petition. He contends that first O.M. clearly applies to the facts of the present case and since before the sealed cover could be opened, the second chargesheet was issued the petitioner could not have been given benefit of promotion as an officer, whose conduct is under cloud, could not have been considered for promotion. He further submits that the O.M. dated 24.02.2003 is prospective in nature and was not applied to the case of the petitioner.
11. We have heard the learned counsel for the parties and considered their rival submissions.
12. The short question which arises for our consideration is as to whether after the first chargesheet was quashed by a Single Judge of this court and the DDA was directed in terms of paragraph 29 of the judgment dated 22.05.1998 can be deprived the benefit of his promotion. Paragraph 29 of the judgment dated 22.05.1998 reads as under: -
"29. Accordingly, the Writ Petition stands allowed and the charge sheet dated 25.7.1996 stands set aside and the DDA is directed to open the sealed cover placed before the DPC on 26.7.1996 and issue order as per the recommendations of the DPC. The DDA shall pass the order on or before 30.6.1998 and shall grant the petitioner and the consequential benefits. There shall be no order as to costs."
(Emphasis Supplied)
13. We may also note that LPA filed by the DDA also stands dismissed by a Division Bench of this court by an order dated 29.10.2003. Thus, order of the Single Judge has attained finality.
W.P. (C) 7594/2009 Page 6 of 914. The learned counsel for the petitioner has relied upon the O.M. dated 24.02.2003, which we have extracted herein above. In the said OM, a reference is made to the decision rendered by the Supreme Court in Delhi Jal Board v. Mahinder Singh, (2000) 7 SCC 210. Mr. Birbal informs us that a contra view was taken by a larger bench in a judgment pronounced almost at the same time in the case of Union of India and Another v. R.S. Sharma, (2000) 4 SCC 394: AIR 2000 SC 2337.
15. We may notice that while the judgment in the case of R.S. Sharma (Supra) apparently relied upon the O.M. No. 22011/4/91-Estt. (A) dated 14.09.1992; while the judgment in the case of Mahinder Singh (Supra), took note of the fact that the Single Judge has accepted the respondent‟s writ petition following two judgments of the Supreme Court in Bank of India v. Degala Suryanarayana, (1999) 5 SCC 762; and State of A.P. v. N. Radhakrishan, (1998) 4 SCC 155, wherein it was held that once the first disciplinary inquiry resulted in favour of the writ petitioner, the benefit of the findings of the DPC in the sealed cover should be given to the writ petitioner notwithstanding the pendency of the second inquiry and accepted the view. We do not deem it necessary to venture into the controversy for deciding the present petition only for the reason that the OMs were not brought to the notice of Single Judge, who allowed the writ petition by an order dated 22.05.1998 and passed a specific order directing the DDA to open the sealed cover and pass directions as per the recommendations of the DPC. The Single Judge also directed the DDA to pass orders before 30.06.1998 and grant the petitioner the consequential benefits. The DDA did not raise this ground even at the time of filing the LPA, W.P. (C) 7594/2009 Page 7 of 9 which was dismissed. Neither the Single Judge nor the Division Bench were informed of the second chargesheet or the OMs. The reliance on the OM at this late stage would amount to depriving the petitioner the benefit of the order of the Single Judge dated 22.05.1998, which has attained finality. The respondent cannot be allowed to take advantage of this OM, if applicable, for their own fault of not bringing the OM to the notice of the Single Judge or even before the Division Bench.
16. We are further of the view that the respondents could have sought a review to bring the proper facts to the notice of this Court and seek modification of the order of the Single Judge to expunge the part directing the respondents to open the seal cover and pass appropriate orders. Have failed to do so, the respondents cannot deprive the petitioner of the benefits of the order dated 22.05.1998. What the respondents could not achieve directly cannot be allowed to be achieved indirectly.
17. On this ground alone, we allow this writ petition and direct the DDA to open the sealed cover and in case the petitioner is successful, he would be granted the benefit thereof. However, we make it clear that the petitioner would not be entitled to any arrears of pay. The pay of the petitioner would be fixed only for the purposes of fixing his pension and the petitioner would be granted 50% of the arrears of pension. The order would be complied with within a period of three months from the date of receipt of this judgment. In case, the order is not complied with within time fixed, the petitioner would be entitled to interest @ 8% p.a. W.P. (C) 7594/2009 Page 8 of 9
18. The writ petition and all applications are disposed of.
G. S. SISTANI, J.
VINOD GOEL, J.
FEBRUARY 20, 2017 // "sk"
W.P. (C) 7594/2009 Page 9 of 9