Central Administrative Tribunal - Delhi
Shri Girdhari Lal Verma vs Delhi Development Authority on 9 September, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 1301/2010 New Delhi this the 9th day of September, 2011 Honble Mr. G. George Paracken, Member (J) Honble Dr. Veena Chhotray, Member (A) Shri Girdhari Lal Verma, S/o (Late) Sh. Radhey Lal Verma, R/o 2/C-2, H.T.Apartments, Mayur Vihar Phase-1, Delhi-110091, Presently posted as Asstt. Accounts Officer in Housing Accounts Cell, DDA, Vikas Sadan (D-Block), Near INA, New Delhi-110023. .. Applicant (By Advocate Ms. Sriparna Chatterjee) VERSUS 1. Delhi Development Authority, Through its Vice-Chairman, Vikas Sadan (B-Block), Ist Floor, Near INA, New Delhi-110023 2. Finance Member, Delhi Development Authority, Vikas Sadan (B-Block), Ist Floor, Near INA, New Delhi-110023 3. Sh. Devender Kumar Kataria, Accounts Officer, presently posted as Accounts Officer, Cash (Main), DDA, Vikas Sadan (C-Block), New Delhi-110023. Respondents (By Advocate Shri Dhanesh Relan ) O R D E R Dr. Veena Chhotray, Member (A) :
The OA 1301/2010 is being reconsidered in pursuance of the directions of the Delhi High Court vide its order dated 20.4.2011 in the Writ Petition (Civil) 1116/2011. Through this OA the applicant working as an Assistant Accounts Officer in the DDA sought the following reliefs:
(a) Quash the impugned charge sheet dated 28.07.2008 (Annexure A-1);
(b) Direct the Respondents to open the sealed cover and promote the applicant to the post of Accounts officer from the date his first junior was promoted vide E.O. No. 2198 dated 02.12.2008 (Annexure A-2) with all consequential benefits of service.
Though the OA had also sought certain interim reliefs, no such directions were granted.
1.2. The OA was decided by the Tribunals order dated 9.11.2010. In course of the hearing the prayer for challenge to the chargesheet was foregone by the applicants learned counsel, with a liberty to challenge the same in a separate proceeding. In the instant OA, the prayer was restricted to promotion. The same had been allowed.
The Tribunal had taken into account the factual matrix of the case such as: (i) issuance of the chargesheet against the applicant on 28.07.2008; (ii) empanelment on 27.06.2008 in pursuance of recommendations of the DPC (iii) promotion of juniors S/Shri Puran Chand and Trilok Chand Shakun on 10.07.2008. Quite a lot of this information had been received by the applicant under the RTI Act on 27.07.2010. Relying upon the Apex Courts decision in Union of India and others V. Sangram Keshari Nayak (2007) 6 SCC 704) holding that when the chargesheet has not been issued to a government servant when the actual promotion takes place, promotion cannot be withheld; the OA was disposed with the following directions:
Following the above, we direct disposed of the OA with a direction to the respondents to give effect to the finding of DPC held on 27.6.2008 by considering the applicant for promotion from the date the juniors have been accorded the same, i.e., 10.7.2008, with all consequences and arrears.. 1.3. However, the aforesaid order of the Tribunal was assailed by the original respondent DDA before the Delhi High Court vide Writ Petition (Civil) 1116/2011. It was contended before the Honble High Court that the findings recorded by the Tribunal were factually incorrect, particularly with regard to date of promotion of the juniors of the applicant. Submitting their version in this respect the DDA had contended about empanelment not conferring any vested right of promotion on the applicant. Further the present case was stated to be appropriately covered under the deemed sealed cover procedure. Rebutting the original applicants contention about deliberate delay in holding the DPC and then in issuing the promotion orders, the DDA submission was the same being on account of their being no clear vacancies in the cadre of Accounts Officer in unreserved category at that point of time and there being only 7 down graded vacancies for Scheduled Castes.
Considering these submissions and counter submissions the Honble High Court was seized with the fact of these aspects not having been addressed and examined by the Tribunal. Accordingly setting aside the Tribunals order, the matter was remanded with the following directions:
The mater will be re-examined by the Tribunal after giving fresh hearing to the parties. Parties will be at liberty to file and produce additional documents or amend their pleadings before the Tribunal, if required and necessary. 1.4. In pursuance of the above directions, the original applicant has amended the pleadings through an additional affidavit dated 16.07.2011. A counter reply thereto has been filed on behalf of the respondents on 26.08.2011. As per the additional affidavit the relief claimed now is for issuance of directions to the respondents to implement the recommendation of the DPC as there existed vacancies for promoting the applicant prior to the issuance of charge sheet dated 28.07.2008.
In view of the directions of the Honble High Court in its remand order, the OA is being adjudicated according to the amended pleadings.
2. On behalf of applicant, learned counsel Ms. Sriparna Chattterjee would appear before us. For the official respondents the learned counsel Shri Dhanesh Relan would argue the matter.
3. The brief relevant facts, as revealed before us, are that in a DPC held on 25.06.2008 for promotion to the post of Accounts Officers during the year 2008-09 the applicant was found fit for promotion. The applicant, who belongs to the unreserved category, was also empanelled on 27.06.2008. However, the promotion orders were not issued and in the meanwhile on 28.07.2008, a Charge Memorandum was issued against the applicant. At the time of filing of the OA ( 19-4-2010) the applicant had built up his case on promotion of his first junior vide the EO No. 2198 dated 2.12.2008 (Annex A-2, Shri Devender Kumar Kataria); and had sought directions for opening the sealed cover and promoting the applicant from the date of promotion of his first junior. However, subsequently on the basis of information obtained under the RTI, the applicant had pleaded about Shri Puran Chand and Shri Trilok Chand Shakun, his juniors, having been promoted on 10.07.2008- anterior in time to the date of issuance of the Charge Memorandum.
While this plea had found favour with the Tribunal in its earlier order of 9.11.2010, the respondents had negated this contention of the applicant by certain factual submissions before the Honble Delhi High Court. Their stand before the High Court and reiterated now before us (in their counter reply to the additional affidavit as well as in the oral submissions of the learned counsel) is that, the promotion order in respect of the applicant could not have been issued earlier for want of clear vacancies in the UR category on the date of the DPC, as these were available at a later point of time. It is also stated that the reference to the promotion of Shri Puran Chand and Shri Trilok Chand Shakun is not pertinent as they were against the reserved vacancies for SC category in respect of which down graded clear vacancies were available. As per the respondents, the case of the applicant had been duly considered before promoting his junior Shri Devender Kumar Kataria. However, as he was facing a major penalty charge sheet dated 28.07.2008, as per the prescribed instructions, his case had been kept under the deemed sealed cover.
Thus as per the respondents, the claims as being agitated now by the applicant are utterly misconceived and the OA fit to be dismissed.
4. Before proceeding further, we may refer to the basic Govt. instructions on the subject of dealing with cases of officers, under cloud in the matters of consideration for promotion. The relevant instructions were issued vide the DOP&T OM No. 22011/4/91-Estt.(A) dated 14.09.1992 in pursuance to the Honble Apex Court judgment in the case of Union of India V. K.V.Jankiraman, etc.( AIR 1991 SC 2010). These were in supersession of all previous instructions on the subject. The basic objective behind these instruction was to ensure the assessment of suitability for promotion by the DPC of such Govt. servants, along with other eligible candidates, without taking into consideration the disciplinary case/criminal prosecution pending. This was to result into what has come to be known in service jurisprudence as observance of sealed cover procedure. Paras 2 and 7 of this OM laying down the basic instructions are reproduced as hereunder:
2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-
i) Government servants under suspension;
Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and
iii) Government servants in respect of whom prosecution for a criminal charge is pending.
.. .. ..
7. 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. 4.1. For the purposes of adjudication of the issues involved in the instant OA, the deemed sealed cover procedure prescribed under para 7 is relevant.
4.2 At this point we may also advert to the Honble Apex Courts judgment in Union of India and Others Vs. Sangram Keshari Nayak ( 2007) 6 SCC 704) where reiterating the law laid down in K.V Jankiramans case (supra) that sealed cover procedure applies from the stage of issue of charge sheet, it was held that: adoption of sealed cover procedure before issue of charge sheet is invalid and therefore, results in wrongful denial of promotion to an employee.
5.1. As per the settled proposition of law, the only right that a public employee has is the right for fair consideration for promotion. This has been upheld by the Honble Apex Court as a fundamental right in the case of S.B. Bhattacharjee Vs. S.D.Majumdar & Ors ( 2008) 1 SCC (L&S) 21). As a logical corollary, this would mean consideration in accordance with the relevant rules, instructions and law as upheld by judicial pronouncements on the subject.
At the same time, it is equally settled in law that mere empanelment would not confer a vested right for promotion on any employee. This is because the promotions can only be made subject to availability of vacancies; not to mention the inherent right of the administrative authorities not to fill up certain vacancies, if found so justified in the interest of administrative exigencies. The core point for judicial scrutiny in such matters centers round the issue as to whether there is any prima facie case of non adherence to the prescribed rules and instructions or of any demonstrable arbitrariness or malafide on the part of the employer in not granting what would otherwise be a fair consideration for promotion to an employee.
6. The facts which are not disputed are about: (i) the applicant having been considered and found fit for promotion to the post of Accounts Officer as per the DPC held on 25.06.2008; (ii) non adoption of a sealed cover in respect of the applicant in the aforesaid DPC held on 25.06.2008; (iii) issuance of a charge sheet against him on 28.07.2008;
As prescribed in Para 7 of the DOP&T OM dated 14.09.1992, in cases where a charge sheet is issued in respect of a Government servant after the recommendation of the DPC but before the actual promotion, the case is to be considered as if having been placed in a deemed sealed cover by the DPC. It is also categorically stated that such a Government servant shall not be promoted until complete exoneration of the charges against him.
Such being the facts, at the first sight; ordinarily the applicant would not have any case for a judicial interference.
7. However, the contentions being raised on behalf of the applicant are: (i) Non promotion of the applicant before the issuance of the charge memorandum ( the intervening gap was of one month and 3 days); (ii) promotion of juniors S/Shri Puran Chand and Trilok Chand Shakun on 10.07.2008, during this intervening period and prior to the issuance of the charge sheet against the applicant, ignoring the legitimate claims of the applicant; (iii) an averment of deliberate delay on the part of the respondents in issuing the promotion orders and sitting over the recommendations of the DPC; (iv) an alleged arbitrariness behind such in action considering the availability of the clear vacancies and the administrative need to fill up the promotional posts.
Briefly put, the claims in the OA rest on allegations of arbitrariness and contravention of established law regarding the claims of seniors for promotion ordinarily having precedence over those of the juniors.
8. As indicated in the foregoing paragraphs, the multifold contentions raised by the applicant have been vehemently rebutted by the respondents. In specific terms the issues centre around the following aspects:
(i) Whether there was any arbitrariness on the part of the respondents in not issuing the promotion orders soon after the DPC?
(ii) Whether the circumstances and considerations for issuance of promotion orders were different in respect of the general category and the reserved category candidates in the panel? This is relevant as the applicant being a general category candidate is agitating claims qua the juniors S/Shri Puran Chand and Trilok Chand Shakun, who were under the reserved categories for Scheduled Castes.
(iii) The status of the vacancies for the posts of Accounts Officers under the general category and the reserved categories at the time of the DPC and subsequent thereto. This has been turned into a contentious issue on account of varying submissions by both the sides.
(iv) The point of time when the empanelled candidates of general category were promoted. Was any junior to the applicant in this category promoted prior to the issuance of the charge memorandum on 28.07.2008.
9. The DPC had recommended the following persons for promotion:
S.No/Sn.No Name of AAO (S/Sh.) UR Category Remarks 1/22 P.C.Goel Subject to completion of penalty imposed vide orders dtd.9.10.97 & 14.10.96 2/24 Mrs.Avinash Arora 3/26 A.C.Rana 4/27 V.M.Narang Subject to completion of penalty imposed vide orders dated 5.11.07.
5/28 S.K.Grover 6/29 Rajan Mehrotra 7/30 Mrs. Rita Aggarwal 8/32 G.L.Verma 9/34 Devender Kumar Kataria 10/35 Abhey Ram Subject to completion of penalty imposed vide orders dtd. 20.6.02, 22.6.07 & 31.12.07 11/36 Jagdish Chander 12/37 S.L.Mukhi SC Category (Down graded posts of Sr.A.O. (on ad hoc basis) 1/95 Puran Chand Subject to completion of penalty imposed vide orders dtd. 22.6.07 2/96 Trilok Chand Shakun Subject to completion of penalty imposed vide orders dtd.8.11.05 As per these recommendations out of the total 12 UR category candidates the name of the applicant had figured at serial 8. Immediately below him was the junior Shri Devender Kumar Kataria. The names of Shri Puran Chand and Shri Trilok Chand Shakun had been shown separately as serial Nos 1& 2 against SC category (down graded posts of Sr. A.O.) ( on ad hoc basis).
9.1. The respective promotion orders in this case were issued as follows:
(i) Vide the promotion order dated 10.07.2008 Shri Puran Chand and Shri Trilok Chand Shakun were promoted on ad hoc basis (Annex P-7 with the counter affidavit dated 26.8.2011)
(ii) Vide the promotion order dated 3.10.2008 5 general category officers i.e. Smt. Avinash Arora, Shri A.C. Rana, Shri S.K.Grover, Shri Rajan Mehrotra and Smt. Rita Agarwal were promoted. They were all senior to the applicant. ( Annex. P-8).
(iii) Vide the order dated 2.12.2008 Shri Devender Kumar Kataria was promoted. He is the junior immediately below the applicant (Annex.P-11). However, vide the vigilance report dated 21.11.2008 for the five general category candidates under consideration, including the applicant and Shri Kataria, in respect of the applicant the fact of major penalty chargesheet having been issued to him on 28.07.2008 finds place under the remarks column.
These are the basic facts deserving utmost consideration, any averment in support of the claims now been raised in the OA would need to be filtered through these basic undisputed facts. The recommendations of the DPC as well as the subsequent promotion orders issued do not support the applicants contention of Shri Puran Chand and Shri Trilok Chand Shakun being immediately junior to him or being treated on the same basis as the general category candidates. It is also significant to note that all the five officers senior to the applicant in the UR category, had been promoted on 3.10.2008- which was subsequent to the issuance of the charge memorandum against the applicant. Even before the promotion of Shri Kataria on 2.12.2008, the case of the applicant had been duly considered. The submission by the respondents learned counsel Shri Dhanesh Relan about the prayer in the OA as per the original pleadings referring only to this promotion of 2.12.2008 is found to be pertinent. Ex facie, these facts themselves do not lend to any premise for drawing an inference of arbitrariness on the part of the respondents either in a deliberate delay in issuance of the promotion orders or any discrimination against the applicant by ignoring his claims while promoting the juniors.
10. The only issue that remains to be considered is about the status of the vacancies both in UR and the reserved categories at the relevant points of time.
10.1. The categorical stand of the respondents in this regard has been summed up as below in their counter affidavit dated 26.08.2011.
(i) No clear vacancy was available at the time of holding of DPC for General category candidate.
(ii) The DPC was held on 25.6.08 to fill the posts of AO, which will become available due to chain vacancy of retirement of Sr. AO and Dy.CAO.
(iii) No DPC was held for promotion to the post of Sr.AO as no Accounts Officer was eligible at that time.
(iv) Only 07 vacancies belonging to SC category (backlog of Sr. AO) were available due to downgrade.
(v) S/Sh. Puran Chand and Trilok Chand Shakun were promoted as Accounts Officer vide EO No.1309 dated 10.7.2008 only against the reserved vacancies for SC category candidates.
(vi) Five posts were downgraded under GFR 254 in the cadre of Accounts Officer, hence 05 Asstt. Accounts Officers ( all were senior to Shri G.L.Verma) promoted to the post of Accounts Officer vide EO No 1886 dated 3.10.2008.
(vii) Further, 02 more posts of Sr.AO were downgraded to that of the level of AO. In the meantime major penalty charge sheet was issued to Shri G.L.Verma, AAO on 28.7.2009 in file No. F 26(1) 2004/Vig/EE (Vig)-4/DDA. Therefore, his junior namely Shri Devender Kumar Kataria, AAO was promoted to the post of Accounts Officer vide EO No.2198 dated 02.12.2008. 10.2. However, the applicant is now resting his case on the argument about their being clear 12 UR vacancies, besides the vacancies in the reserved categories at the time of the DPC. In support certain documentary proofs by way of extracted file notings or copies of certain communications have been enclosed. These have been rebutted by the respondents by enclosing some counter documentary proofs. In fact along with their counter affidavit they have enclosed a copy of their Writ Petition before the High Court, with which these documentary proofs had been annexed.
10.3. As is the settled law, in judicial review we are not expected to under take roving enquiries. We do not even find it necessary in the present case to probe further into these details given the factual matrix of the case and the position of law on the subject, as elaborated above. The decision of the Honble Apex Court in Sangram Keshari Nayaks case (supra) is not applicable here given the facts of the case. Besides some other judicial rulings relied upon by the parties are also not found to be really pertinent to the issues at hand.
11. To conclude, in pursuance of the remand directions of the Delhi High Court, we have carefully reconsidered the issues in the OA in the light of the amended pleadings by the parties. The claims in the OA are not found to be tenable at all. The OA is dismissed hereby with no orders as to costs.
(Dr.Veena Chhotray) ( G.George Paracken)
Member (A) Member (J)
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