Central Administrative Tribunal - Delhi
Si Prabhu Dayal vs Commissioner Of Police on 14 July, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH : NEW DELHI
O.A. No. 452/2009
With
O.A. No. 2776/2008
O.A. No.2343/2008
New Delhi, this the 14th day of July, 2010
HONBLE MR. JUSTICE V.K. BALI, CHAIRMAN
HONBLE MR. L.K. JOSHI, VICE CHAIRMAN (A)
HONBLE MR. SHANKER RAJU, MEMBER (J)
HONBLE MRS MEERA CHHIBBER, MEMBER (J)
HONBLE MR. N.D. DAYAL, MEMBER (A)
OA No. 452/2009
SI Prabhu Dayal
S/O Shri Phool Chand
R/o J-Block, 527 Jahangir Puri,
Delhi-110 033. ..Applicant
By Advocate: Shri Ajesh Luthra
Versus
1. Commissioner of Police
(Police Head Quarters),
MSO Building, IP Estate
New Delhi.
2. The Joint Commissioner of Police,
(Head Quarters),
Police Head Quarters,
MSO Building, IP Estate,
New Delhi.
By Advocate: Smt. Avnish Ahlawat with Shri Rishi Prakash and
Shri Aman Deep and Ms. Simran & Shri Nitesh
Kumar Singh.
OA No. 2776/2008
ASI Shyam Singh
S/o Late Shri Laxmi Singh
R/o H-177, New Police Line,
Kingsway Camp,
Delhi-110 009. Applicant
By Advocate: Shri Anil Singal.
Versus
1. Govt. of NCT of Delhi
Through Commissioner of Police,
Police Headquarters,
I.P. Estate,
New Delhi.
2. Joint Commissioner of Police
(Headquarters),
PHQ,
I.P. Estate,
New Delhi.
3. Deputy Commissioner of Police
Headquarters (Estt), PHQ,
I.P. Estate, New Delhi. ..Respondents
By Advocate: Smt. Avnish Ahlawat with Shri Rishi Prakash,
Shri Aman Deep and Ms. Simran.
OA No.2343/2008
Ram Kishan
Aged 38 years
S/o Shri Ram Phal
R/o H.No. B2B/246,
Janakpuri, New Delhi-110 058.
And
Sub-Inspector, Delhi Police,
E-Block, Security Police Lines,
(L.G. House Security)
New Delhi. ..Applicant
By Advocate: Shri Kanwal Sapra.
Versus
1. Union of India
Through Secretary,
Ministry of Home Affairs,
North Block, New Delhi.
2. The Commissioner of Police,
Police Headquarters,
M.S.O. Building,
Indraprastha Estate, Delhi.
3. The Additional Commissioner of Police,
Public Information Officer/PHQ,
Police Headquarters,
M.S.O. Building, Indraprastha Estate,
Delhi. ..Respondents
By Advocate: Smt. Avnish Ahlawat with Ms. Sumedha Sharma,
Shri Aman Deep and Ms. Simran.
O R D E R
By Honble Mrs. Meera Chhibber, Member (J) This case has been referred to the larger Full Bench vide order dated 27.7.2009 in OA No. 452/2009 for authoritative pronouncement on the subject whether censures not based on corruption, moral turpitude or gross negligence in protection of Govt. Property can be made basis for denying promotion to the lower/upper subordinates in Delhi Police keeping in view the relevant rules and clause (ii), (iii and (v) of Delhi Police Circular dated 7.2.2005.
2. The same issue was already considered by the Full Bench of this Tribunal consisting of Honble the Chairman, Vice Chairman (J) and Vice Chairman (A) in the case of Ashok Kumar Meena in OA No. 1295/2007 by framing the following questions:-
To what extent Rules 5,7 and 17 of Delhi Police (Promotion and Confirmation) Rules have relevance while the DPC considers the suitability of an officer for promotion?
What role could be assigned to the circular dated 07.02.2005 for influencing the selection process referred to above?
In matters of applying guidelines as above if a meaningful reconciliation is called for, what are the principles to be followed?
3. The brief facts of the Full Bench case were that though the applicant therein had not been subjected to any major penalty, yet he was denied promotion as Inspector (Executive) in Delhi Police due to 7 censures given to him. It was contended by the applicant therein that since none of the censures were based on corruption or moral turpitude or gross negligence, he could not have been denied promotion on the basis of the said censures in view of clause II, III and V of Circular dated 7.2.2005 read together.
4. Respondents on the other hand had stated circular is directory in nature and basic inputs are required to be seen which would include the entire service record as already mentioned in the statutory rules. Circular is issued only as guideline for the DPC to assess the candidates in an uniform manner. They had relied on Rule 5, 7 and 16(1) of Delhi Police (Promotion & Confirmation) Rules, 1980.
5. Counsel for the applicant had placed reliance on judgments in the case of U.O.I. Vs. Virender Singh, W/HC Tejwati Vs. U.O.I. & Others, V.D. Madan & Others Vs. Union of India and Others (CWP No.1354/2001) while respondents had relied on the judgments in the case of SI Sajjan Kumar Vs. Secretary, Ministry of Home Affairs and Others O.A. No. 7/1996 decided on 20.8.1996 Harish Chand Yati Vs. Commissioner of Police and also Commissioner of Police Vs. Rajender Singh (WPC No.1385/2007) and also Delhi Police (Promotion & Confirmation) Rules, 1980.
6. After discussing all the judgments as referred to above and the relevant rules and circular dated 7.2.2005, it was observed by the Full Bench as follows:-
Though censures are to be taken note of but the underlying reasons for the authority for awarding the penalty also has relevance. The DPC is not to act mechanically.
7. It was held as follows:
(i) The circulars issued are not the lone guidelines, statutory rules require to be followed in letter and spirit.
Taking note of the statutory Scheme, as augmented by the circulars, the total service records, positive and negative, including major and minor penalties are required to be scanned by the DPC before they make a recommendation.
Having held so, it was clarified that:-
The general trend as could be gatherable from the circular is that perpetual bar of promotion is not envisaged, as in such case a person resigned to such a fate may have little to offer in his career thereafter. On this basis, it would be safe to assume that if an officer at some point of his career had occasion to receive censure that alone should not, for all time, block his promotional opportunities. The effect of a minor penalty of censure would operate to deny him promotion, even if adjudged as fit, for a period of six months. But if the censure was required to be administered for a conduct involving corruption, moral turpitude, violence, defiance and the like, the benefit of six months period may not be claimable, even if technically he may be in a position to assume promotability after the six months period as appearing in the circular. The regularity spoken to by the circular also could be applied only subject to the above position, namely, that the proceedings leading thereto should have traits of moral turpitude. On the issue of regularity, we have been constrained to express our view as above, since as of now it is an appendage to clause (ii) of the circular. It may be within the powers of Administration to prescribe that an officer, who receives censures for whatever reasons regularly could be considered as ineligible for getting a clearance by the DPC by incorporating changes in the circular.
8. Honble the Chairman concurred with the views expressed by the Honble Vice Chairman (J) but gave separate reasoning for arriving at the same conclusion. His Lordships observed as follows:-
Perusal of provisions of the Rules reproduced above would clearly manifest that promotion is by way of selection, tempered by seniority, and efficiency and honesty are the main factors governing selection. Once, seniority is not the sole criteria governing promotion, and selection is to be made keeping in view the efficiency and honesty, I would have no doubt in my mind that the service record of the applicant is relevant and censure(s), which are admittedly minor penalty under rules, shall have to be taken into consideration. The circular reproduced above also refers to the service record, which can only mean the entire service record.
Having said so, it was clarified by elaborating it as follows:-
it is true that efficiency and honesty are main factors governing selection, and that censures, in any case, would reflect upon efficiency of an employee, the respondents have themselves laid down the parameters of efficiency by issuing circulars from time to time, as mentioned above. In the parameters laid down in the circulars for efficiency for promotion, what may come in the way of an employee so as not to be promoted, are such censure(s) which may have the element of corruption and moral turpitude during the last ten years in that particular rank. As per clause iii) of the circular, officers who might have been awarded even a minor punishment, as indeed censure is a minor punishment, in the preceding five years on charges of corruption, moral turpitude and gross dereliction of duty to protect government property, may also not be promoted, but the officers who have been awarded censure(s), and the word censure(s) would have any number of the same during last six months, cannot be brought on the promotion list. However, the effect of censure debarring the official for promotion for six months from the date of award shall continue. Once, there is a reference of minor punishment having the element of corruption, moral turpitude and gross dereliction of duty to protect government property in a separate clause, i.e., clause iii), the censure(s) separately referred to in clause v) which do not have the element of moral turpitude and dereliction of duty to protect government property, thus cannot come in the way of promotion except to the limited extent as mentioned in clause (v) itself. Once, the respondents have themselves laid the parameters of efficiency and censure(s) other than involving moral turpitude etc. are not to be taken into consideration in the matter of promotion, the respondents cannot withhold promotion of an employee only on such censure(s).
In other words it was held that if any censures are given to the employees which are not based on corruption, moral turpitude or dereliction of duty, such censures would not come in the way of promotion except as mentioned in Clause V of the circular. The judgment given by the Full Bench was not challenged by the respondents, it had thus attained finality.
9. The occasion to refer the matter to the Larger Bench arose when subsequently, the same issue arose in the case of S.I. Prabhu Dayal who was awarded 7 censures on 26.10.1998, 27.10.1998, 4.01.2001, 31.12.2001, 23.01.2002, 8.5.2002 and 27.4.2006. He was ignored for promotion to List F (Executive) for the post of Inspector of Police on the ground of having indifferent service record. He had challenged this action of the respondents on the ground that since none of the 7 censures were based on corruption, moral turpitude or gross negligence in protecting the Government property, he could not have been denied the promotion. He had placed reliance on the above said Full Bench judgment.
10. Counsel for the respondents on the other hand had placed reliance on the latest judgment given by Honble High Court of Delhi in the case of Commissioner of Police Vs. Mr. Jawahar Singh (W. P. [C ] No. 17266/2006) wherein it was held as follows:-
It is thus well established principal of law that while considering the employee for promotion, his whole record can be taken into consideration by the promotion committee and if the DPC takes into consideration the penalties imposed upon the employee and denies promotion, such a denial cannot be treated as illegal or unjustified. In the present case as noted above from 1996 to 2001, he was awarded penalty of censure four times. The reasons for which such penalty was awarded should also be mentioned as can be seen from the extract of the DPC quoted above. The Tribunal was thus wrong in solely relying upon the Clause-V of the OM dated 07.02.2005. This clause simply states that if an employee is given punishment of censure that shall debar him from promotion for six months and after the expiry of six months, he can be considered for promotion. That would mean that during the currency of said punishment which is for a period of six months, such an employee cannot even be considered for promotion. However, though after six months he can be considered for promotion but after going by the overall record and the nature of punishment imposed, the DPC comes to the conclusion that such an employee is not fit to be promoted, the court cannot interfere with this subjective satisfaction of the DPC which obviously is based on objective material.
We, therefore, are not in agreement with the view taken by the learned Tribunal which is contrary to the aforesaid position in law. Accordingly, this writ petition is allowed, judgment of the Tribunal is set-aside and consequently the OA filed by the respondent before the Tribunal stands dismissed. There shall be no order as to costs.
11. It was in view of above development that the case of Prabhu Dayal was referred to the Larger Bench of 5 members for an authoritative decision in the matter.
12. Counsel for the applicant strenuously argued that the circular dated 7.2.2005 was issued under Rule 21 of Delhi Police (Promotion & Confirmation) Rules, therefore, it is mandatory in nature and has binding effect. Since procedure to be followed by DPC is specifically mentioned in the circular, it has to be followed. He placed reliance on S.B. Bhattacharcee Vs. S.D. Mazumdar and Others reported in 2008 (1) SCC L&S 21 to buttress this argument. He further submitted that since circular is a special legislation it would supersede the statutory rules. He also submitted that in Jawahar Singhs case, the earlier judgments of Vishnu Dev Madan given by a Co-ordinate Bench was neither referred to nor discussed, therefore, it has to be declared as per incuriam. To buttress this argument, he relied on Govt. of A.P. Vs. B. Satyanarayana Rao reported in 2000 (4) SCC page 262, A.N. Bhargav-I Pillai (Dead) by LRs and Others Vs. State of Kerala reported in AIR 2004 SC 2317 and State of U.P. Vs. Synthetics and Chemicals Ltd. reported in 1991 (4) SCC 139.
13. Counsel for the respondents on the other hand submitted that general principles of promotion are laid down in the rules of Delhi Police (Promotion & Confirmation) Rules, 1980. Circular only lays down the guidelines so that a uniform methodology may be adopted by the DPC. She submitted that as per the rules, circular and even the judgments referred to above, it has been reiterated by all the courts that overall record of candidates has to be seen which would include censures also. If after looking into overall record of the individual, DPC comes to the conclusion that the individual is not fit for promotion, Tribunal cannot sit in appeal over the decision taken by the DPC. As far as clause (v) of the circular dated 7.2.2005 is concerned, that has already been explained by the Honble High Court of Delhi, therefore, Tribunal has no right to comment on the judgment of Honble High Court of Delhi. Once matter has finally been decided by the Honble High Court of Delhi in the case of Jawahar Singh, it has to be followed by the Tribunal. If there are two judgments of the same court, then latter will hold the field. To buttress this argument, she relied on 2009 (15) SCC 458 and Official Liquidator Vs. Dayanand and Others reported in 2008 (10) SCC 1.
14. We have heard counsel for all the parties. The questions which are required to be considered by us are:-
(i) Whether the judgment in the case of Jawahar Singh can be declared as per incuriam as it did not consider the judgment in the case of Vishnu Dev Madans case?
(ii) Whether circular dated 7.2.2005 has binding force and would it overrule the statutory rules?
(iii) What would be the effect of judgment given by the Honble High Court of Delhi in Jawahar Singhs case on the judgment of Full Bench of Tribunal in O.A. 1295/2007 in the case of Ashok Kumar Meena decided on 25.9.2008?
15. Since the whole issue revolves around promotions of subordinate officers in Delhi Police, let us examine how promotions are governed in Delhi Police. Promotions of all subordinate ranks are governed by the Delhi Police (Promotion & Confirmation) Rules, 1980 issued in exercise of the powers conferred by sub-section (1) of Section 147 of Delhi Police Act, 1978. Section 148 of Delhi Police Act, 1978, further laws down that every rule and regulation made under this Act shall be made by Notification in the Official Gazette, after it had been passed out by the both Houses of Parliament. The Delhi Police (Promotion & Confirmation) Rules, 1980 are thus statutory in nature and are binding. Rule 4 of Delhi Police (Promotion & Confirmation) Rules, 1980, defines Upper Subordinates to include Police Officers of rank of Assistant Sub Inspector and Inspector meaning thereby that these rules govern the promotions up to the rank of Inspector in Delhi Police.
16. General principles of promotion are laid down in Rule 5, which reads as under:-
(i) Promotions from one rank to another and from lower grade to the higher grade in the same rank shall be made by selection tampered by seniority. Efficiency and honesty shall be the main factors governing selection (Amended vide Notification No.F.5/60/83-H (P)/Estt. Dated April 7, 1984). Zone of consideration will be determined in accordance with the rules/instructions issued by the Government from time to time.
17. These rules further show that List A, B, C, D-I, D-II, E-I, E-II and F are required to be maintained for selection and for regulating promotional courses, where applicable and promotion to various subordinate ranks is to be made from these lists. Rule 7 (ii) makes it clear that the conduct and efficiency of men on promotion list shall be, at all times, watched with special care making it clear that even an officer, whose name exists on the promotion list, if found guilty of a misconduct of nature reflecting upon his character or fitness for responsibility or who shows either by specific acts or by his record as a whole that he is unfit for promotion to higher rank shall be reported to the Deputy Commissioner of Police, Head Quarters (I), Delhi and the final appointing authority may remove the name of such person from promotion list after giving him a show cause notice. Rule 8 talks about constitution of Departmental Promotion Committee (hereinafter referred to as DPC) who shall judge the fitness of personnel for promotion to various ranks in different grades/cadres. Rule 12 talks about promotion List A for confirmed constables (Executive) considered fit for being sent to lower School Course. It further clarifies that the said list shall be framed on the basis of recommendation which shall adopt the evaluation system based on the following:-
Service record Seniority ACR Acquittance in Professional test which shall cover following objects:-
(a) Physical Training and Parade,
(b) Elementary law and Police practical work, ) General Knowledge,
(d) Professional work done.
Rule 13 talks of List B which shall comprise names and particulars of the constables who had qualified in the lower School Course. This list is prepared in order of seniority as on List A. Promotions to the post of Head Constables shall be made from this list as and when vacancies occur in the rank of Head Constable. Rule 15 talks about List D which contains list of confirmed Head Constables considered suitable for the rank of Assistant Sub-Inspector. Rule 16 talks about List E which contains the names of Confirmed Assistant Sub-Inspector (Executive) who are found suitable for being sent for training in the Upper School Course. On successfully completing the Upper School Course, their names shall be brought on promotion List E-II (Executive) in order of their respective seniority in List E-I for promotion to the rank of Sub-Inspector (Executive) as and when vacancies occur. List F is dealt with in Rule 17 for confirmed SIs who are placed in the said list on the basis of recommendations made by the DPC.
18. It is thus clear that detailed rules are already in existence laying down the criteria to be kept in mind while considering the subordinate officers for promotion to the different ranks up to Inspector in Delhi Police. Rule 21 of these rules reads as under:-
21. Miscellaneous Standing Orders laying down details of the evaluation system for holding various departmental tests and the procedure to be followed by departmental promotion committees for interview etc. shall be issued by the Commissioner of Police.
19. The above rule clearly shows that the Standing Orders are issued for laying down details of evaluation system for holding various departmental tests or laying down the procedure to be followed by the DPC for interviews etc. In other words these circulars are instructions which are required to be kept in mind by the DPC while considering the candidates for promotions in order to maintain uniformity, therefore, they are also equally binding but it cannot be stated that they would supersede the statutory rules as suggested by the counsel for the applicant. It is settled law that in case of conflict the Act will prevail over the Rules. Rules will prevail over the instructions. If rules are silent, instruction can supplement the same, therefore, contention of the counsel for the applicant that circular would supersede the rules is rejected.
20. Commissioner of Police has been issuing Circulars under this Rule 21 from time to time which were subject matter of the judgments as referred to by both the counsel. It is relevant to note that the judgments relied upon by the counsel for applicant had dealt with circular dated 23.9.1992 while respondents had relied on the judgment, which was dealing with circular dated 7.2.2005. We have stated so because the language in both the Circulars is different. In order to appreciate the difference, it is necessary to quote both the circulars which for ready reference read as under:-
Circular dated 23.9.1992 The following principal should be observed while holding departmental promotion committee for admission of names to the promotion lists :-
i) Officers having at least 3 'Good' or 'above' reports and without any below average or adverse report during the last 5 years may be considered.
ii) The total record of the officer in that particular rank shall be taken into view with particular reference to the gravity and continuity of punishments till date. Punishments on counts of corruption and moral turpitude are to be viewed seriously.
iii) Officers who have been awarded any major/minor punishment in the proceeding 5 years on charge of corruption, moral turpitude and gross dereliction of duty to protect government property, or major punishment within 2 years on charge of administrative lapses, from the date of consideration may not be empanelled.
iv) Officers whose names stand on Secret List shall not be considered fit as per S.O. No. 265/89.
v) Officers who have been awarded censures during the last 6 months with no other punishment may also be allowed to be brought on promotion list provided they do not have any other major punishment. However, the effect of Censure by debarring the official for promotion by six months shall continue.
vi) Result of Officers, who are under suspension or facing D.E. or involved in criminal cases, shall be kept in sealed covers.
vii) In cases where vigilance enquiries are pending against an officer and the allegations are specific and serious in nature, results may be with-held the finalisation of the enquiry.
Circular dated 7.2.2005 The following principles shall be observed, in future, while holding Departmental Promotion Committee for admission of names to promotion lists:-
The DPC should assess the suitability of the employees for promotion on the basis of their Service records with particular reference to the Confidential Reports for five preceding years irrespective of the qualifying service prescribed in the Service/Recruitment rules. Officers having at least three `good and above reports without any `below average or `adverse report, even for a small period during last five years may be empanelled. (If more than one CR has been written for a particular year, all the CRs for relevant year shall be considered together as the CR for one year).
The service record of the officer during preceding 10 years in that particular rank shall be taken into account with particular reference to the gravity and continuity of punishment till date. Punishment on counts of corruption and moral turpitude are to be viewed seriously.
Officers who have been awarded any major/minor punishment in the preceding 5 years on charges of corruption, moral turpitude and gross dereliction of duty to protect government property or major punishment within 2 years on charges of administrative lapses, from the date of consideration may not be empanelled.
Officers whose names stand on Secret List shall not be considered fit as per S.O. No. 265 on the subject.
Officers who have been awarded censure(s) during the last 6 months can (not?) be allowed to be brought on promotion list. However, the effect of censure debarring the official for promotion for six months from the date of award, shall continue.
Result of officers, who are under suspension or facing DE or involved in Criminal Cases shall be kept in sealed covers.
This supersedes earlier circular, issued vide this Hdqrs. Order No. 83135-234/CB-1, dated 03.12.1998.
21. It we compare both the circulars it is seen that in earlier circular dated 23.9.1992, it was specifically mentioned in para 5 that even those officers, who had been granted censures during last 6 months could be brought on the promotion list provided they do not have any other major penalty but effect of censure would be to defer the promotion by 6 months, but in circular dated 7.2.2005 language is different. It clearly lays down that if censures are awarded during last 6 months, such officers cannot be brought on promotion list. However, effect of censure to debar a person from promotion for 6 months shall continue.
22. Keeping these two circulars in mind it would be relevant to discuss how the issue of censure and its effect on promotion in Delhi Police has been dealt with by the Tribunal or the Honble High Court in different judgments so far.
(i) In Commissioner of Police vs. Virendra Singh Writ Petition No. 2189/1998 decided on 18.12.2001, the facts of the case were that Shri Virender Singh was found unfit for promotion to the post of Sub Inspector (Executive) because of minor punishment of 4 censures awarded to him on 24.6.88, 17.1.1994, 28.4.1994 and 10.6.1994. He had challenged denial of his promotion by filing OA No. 746/1995 in the tribunal on the ground that since these were minor penalties, they could not have been made basis for denying him promotion after 6 months period. Tribunal allowed the OA by observing as follows:-
The censures dated 24.6.88 and 17.1.1994 were outside the period of 6 months from the date when DPC was held on 26.7.94, therefore, they could not have been taken into consideration. As far as censure dated 28.4.94 is concerned, it was only on account of negligence and not for corruption or moral turpitude. The 4th censure dated 10.6.1994 was given due to illegal detention and beating of one Shri Gajraj Singh. However, Tribunal was of the opinion that since DPC had not recorded any reason that this censure alone was sufficient for debarring applicant from being brought on promotion list, they remitted the matter back to the authorities for reexamining the case and for passing appropriate orders.
It is relevant to note that even in this judgment Tribunal had noted that if despite Para-V of circular dated 23.9.1992 respondents come to the conclusion that applicant is not fit to be promoted to list F, they should record reasons for the same meaning thereby that promotion could be denied even for one censure provided DPC had recorded reasons for denying the same. The respondents were aggrieved by the observation made by the Tribunal to the extent that censures would not be an impediment after 6 months, the department, therefore, had filed Writ Petition No.2189/1998 in the Honble High Court of Delhi. It is noteworthy that the above observation was clarified by the Honble High Court by declaring that the Tribunal did not pronounce so conclusively to invalidate the actions of the department. Honble High Court observed that the question is otherwise only academic because ultimately Tribunal has only directed the department to record reasons in case they find Shri Virender Singh to be unfit for promotion on the basis of his overall service record. It is thus clear that the observations made in Virender Singhs case would not have any binding precedence in view of the clarification given by the Honble High Court.
In fact even Honble High Court was of the opinion that if a person is found unfit by the DPC on account of overall service record or for even one censure, there was nothing wrong in it but all that was required was that the DPC should record reasons for the same.
(ii) Counsel for the applicant placed reliance on the judgment in the case of W.H.C. Tejwati vs. Union of India & Ors. In C.W.No. 4821/2001 but that would not be relevant in the present circumstances nor would it advance the case of the applicant because admittedly she was censured for accepting illegal gratification from a person accused of pick pocketing. One of the factors to be seen while considering a person for promotion under Rule 5 of Delhi Police (Promotion & Confirmation) Rules is honesty. Even clause-V of Circular dated 23.9.1992 debars promotion of such persons. It was thus held by the Honble High Court that she was rightly found unfit by the DPC.
(iii) Counsel for the applicant relied heavily on the judgment of Vishnu Dev Madan Vs. U.O.I. & Others (W.P. No. 1354/2001 decided by the Honble High Court of Delhi on 15.7.2002). The brief facts of the case were that Shri V.D. Madan was found unfit by the DPC in the year 1994. It was noted by the Tribunal that DPC had taken into consideration the CRs of 1983, while as per rules, overall record of 10 years alone could have been seen by the DPC, i.e., up to 1989-1990. Moreover, Tribunal was of the view that the minor punishment of censure awarded to the petitioner could not have been taken into consideration, in view of Circular dated 23.9.1992. They had also referred to the judgment of Virender Singh. The matter was carried to the Honble High Court. It is correct that in V.D. Madans case Honble High Court had also taken the view that promotion could not be denied unless censures were based on charges of corruption, moral turpitude or gross dereliction of duty to protect Government property during the preceding 5 yeas but it is relevant to note that when the same issue came up again for consideration before the Honble High Court of Delhi in Commissioner of Police Vs. Rajender Singh, the view taken in V.D. Madans case was not approved of by the same High Court. The judgment in the case of V.D. Madan was specifically referred to in Rajender Singhs case but it was distinguished by observing that it was decided on the peculiar facts of that case, therefore, V.D. Madans case also cannot be taken as a binding precedent.
(iv) In the case of Rajender Singh he was declared unfit for bringing his name on promotion list F (Executive) on account of one major penalty and 6 censures by the DPC held in August, 1994. Major penalty was challenged by him by filing an OA, which was allowed and penalty was set aside by the Tribunal. Accordingly, his case was considered by the review DPC but he was again declared unfit in 1999 on the basis of 6 censures given to him. He again challenged the order of the respondents by filing OA No. 1328/2005. The said OA was allowed by the Tribunal by placing reliance on Vishnu Dev Madans case and by holding that only 5 years record could have been considered by the DPC. Moreover, censure not based on corruption, moral turpitude or negligence in protecting the Government property cannot be an impediment in the empanelment for promotion. Since none of the censures were based on the grounds as mentioned above, DPC had acted illegally in denying empanelment to Shri Rajender Singh. This judgment was challenged by the department before Honble High Court of Delhi by filing W.P. No. 1385/2007. In this case also circular dated 23.9.1992 was in vogue when DPC had met.
It was on the basis of para (v) of circular dated 23.9.1992 that Honble High Court had observed as follows:-
From a reading of the aforesaid circular it is also clear that officers who have been awarded censures are not barred from being brought on the promotion list, provided they do not have any other major punishment. The effect of the penalty of Censure on the promotion of the concerned officer is that the orders of promotion would not be given effect to, even if he is found suitable for promotion by the DPC for a period of six months from the date of imposition of the said penalty. Consequently while Censure by itself would not have the effect of preventing the officer from being considered for promotion, it would impact the date from which he would be granted promotion, inasmuch as, the promotion would not take effect for a period of six months from the date of imposition of the said penalty.
However, having said so, it was clarified in Rajender Singhs case itself that suitability of the candidates for promotion should have been assessed on the basis of their total record. In para 10 it was specifically held as under:-
The 'total record' of an officer would include all commendations and penalties in the service record of the officer. It would also include the major and minor penalties. Merely because the minor penalties may have a direct impact only for a limited period, such as Censure or reduction in pay for a limited period, which does not have an effect of postponing future increments, it does not mean that such penalties would cease to be a part of the 'total record of the officer'..
In other words it was clarified by the Honble High Court that even though censure has the effect for limited period, it does not cease to be part of the total record of the officer. Referring to V.D. Madans case, it was observed by the Honble High Court of Delhi that the facts of Rajender Singhs case were materially different because rather than confining its consideration to ACRs of last 5 years, i.e., from 1989 to 1994, the DPC took into consideration the ACRs of the petitioner in that case since 1983. V.D. Madans case was thus held to be decided on the peculiar facts of that case.
23. We can, therefore, safely conclude that the judgment in the case of V.D. Madan was already held to be not binding indirectly, therefore, reliance on V.D. Madans case is totally misplaced.
In any case Honble High Court had noted that the 6 censures given to Shri Rajender Singh were recorded by the review DPC to be of serious nature, therefore, it could not be stated that the said punishments were inflicted merely on account of a minor or casual lapse in the performance of his duties. It was also noted that 5 out of 6 censures were inflicted within a period of 5 years of the date on which the promotion of the respondent was to be considered in the year 1994. It was thus held by Honble High Court that there was no justification to interfere in the case. Accordingly, Writ Petition was allowed and the judgment of the Tribunal was set aside.
24. From above, it is clear that in Rajender Singhs case Honble High Court had clarified that even if the currency of censure was for a limited period but it does not get wiped out and continues to be a part of the record and if after considering the total record, DPC comes to the conclusion that a person is not fit for promotion, it calls for no interference.
25. The same view was reiterated by the Honble High Court in the case of Commissioner of Police Vs. Jawahar Singh W.P. No. 17766 of 2006. In this case, the candidate was not found fit for promotion to the post of Sub Inspector. He challenged it on the ground that the censure issued to him on 26.1.2001 was beyond the period of 6 months from the date of DPC, therefore, he could not have been denied promotion on the basis of said censure. OA was allowed on this ground. When the matter was carried to the Honble High Court, it was observed by Honble High Court as follows:-
Perusal of the judgment of the Tribunal would show that the Tribunal has been swayed by Clause-V of the circular No.7931/8030 dated 7.2.2005, which inter alia stipulates that the effect of censure debarring the official from promotion would be for the period of six months from the date of award and after expiry of six months, the incumbent can be considered for promotion.
Honble High Court perused the records and found that DPC had declared Jawahar Singh unfit for promotion to the post of Sub Inspector on the basis of 4 censures dated 30.10.1996, 12.1.1999, 24.6.1999 and 26.3.2001.
Reliance was placed by the Honble High Court on Union of India Vs. K.V. Jankiraman reported in 1991 (4) SCC 109 wherein it was held as follows:-
The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is, therefore, no discrimination when in the matter of promotion, he is treated differently. The least that is expect of any administration is that it does not reward an employee with promotion retrospectively from a date when for his conduct before that date he is penalized in praesenti. When an employee is held guilty and penalized and is, therefore, not promoted at least till the date on which he is penalized, he cannot be said to have been subject to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct. In fact, while considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified.
Similarly reference was made to the judgment in State of Tamil Nadu and Another Vs. P. Bose and Another reported in 1993 Supp. (3) SCC 491 also wherein it was held as under:-
In so far as censure is concerned, we have seen the order of the Chief Secretary, Government of Manipur dated 30.7.1969 by which the appellant was censured. This had come to happen because of the issuance of a certificate by the appellant in favour of one Ibo Pishak Singh stating that his total income was Rs.600/- per annum. On the basis of this certificate, Post Metric Scholarship meant for low income group students came to be awarded to Ibo Pishak Singh. It, however, appears from what has been stated in the Chief Secretarys order, that the certificate had been issued carelessly without proper verification; and so, a lenient view was taken as there was no mala fide intention and the appellant came to be censured. The non-recommendation of the appellant in 1974 was thus for good and cogent reasons.
After referring to the above judgments, it was held by the Honble High Court in Jawahar Singhs case as follows:-
It is thus well established principal of law that while considering the employee for promotion, his whole record can be taken into consideration by promotion committee and if the DPC takes into consideration the penalties imposed upon the employee and denies promotion, such a denial cannot be treated as illegal or unjustified. In the present case, as noted above from 1996 to 2001, he was awarded penalty of censure four times. The reasons for which such penalty was awarded should also be mentioned as can be seen from the extract of the DPC quoted above. The Tribunal was thus wrong in solely relying upon the Clause-V of the OM dated 7.2.2005. This clause simply states that if an employee is given punishment of censure that shall debar him from promotion for six months and after the expiry of six months, he can be considered for promotion. That would mean that during the currency of said punishment which is for a period of six months, such an employee cannot even be considered for promotion. However, though after six months he can be considered for promotion but after going by the overall record and the nature of punishment imposed, the DPC comes to the conclusion that such an employee is not fit to be promoted, the court cannot interfere with this subjective satisfaction of the DPC which obviously is based on objective material.
26. Perusal of all the judgments as referred to above show that Clause-V of Circular dated 7.2.2005 has been explained for the Ist time in Jawahar Singhs case. In earlier cases, clause-V of circular dated 7.2.2005 was not even the subject matter. They were dealing with a different circular in which Clause-V was worded differently. Moreover, the view taken in Jawahar Singhs case has been followed by Honble High Court in subsequent case of Samu Murmu Vs. Govt. of NCT of Delhi and Others W.P. ( C) No. 983 of 2010 also. It is thus clear that the latest view taken by Honble High Court is that though censure has its effect for a limited period but it does not get wiped out after 6 months. It continues to be a part of the total record of an employee. If on the basis of overall record DPC comes to the conclusion that a person is unfit, it calls for no interference.
27. The next question is whether the judgment in Jawahar Singh can be declared as per incuriam or not. In N. Bhargavan Pillai (dead) by LRs and Others Vs. State of Kerala reported in AIR 2004 SC 2317, it was held by the Honble Supreme Court that a view expressed by court without analyzing the statutory provision cannot be treated as a binding precedent.
28. In V.D. Madans case the statutory provisions were not even looked into nor it analyzed the circular dated 7.2.2005 which is subject matter now, therefore, it cannot be treated as a binding precedent.
29. In Subhash Chandra and Another Vs. Delhi Subordinate Services Selection Board and Others reported in 2009 (15) SCC 458 at 498 Honble Supreme Court discussed when can a judgment be said to be per incuriam. It was held in para 98 as follows:-
98. It is also well known that a decision rendered in ignorance of a binding precedent and/or in ignorance of a constitutional provision, would be held to have been rendered per incuriam.
30. It was also held that a decision is an authority for what it decides and not what can logically be deduced there from (page 96). Even earlier Honble Supreme Court had held in State of Orissa Vs. Sudhanshu Shekhar Misra reported in 1968 (2) SCR 154 that a decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not other observations made in it.
31. Keeping in view the settled position of law, if we look at the judgment of V.D. Madan, we find that Vishnu Dev Madan was dealing with a different circular. It did not discuss the statutory rules at all. The points laid down in V.D. Madans case were already not approved of in Rajenders case by the Honble High Court in Rajender Singhs case. It was held to have been decided in peculiar facts of the case, therefore, it could not be used as a precedent. Clause-V of circular dated 7.2.2005 with which we are now concerned was, not even subject matter of V.D. Madans case, therefore, if V.D. Madan was not referred to in Jawahar Singhs case, the judgment in Jawahar Singhs case cannot be declared as per incuriam.
32. Even otherwise, it is for the Ist time that clause-V of circular dated 7.2.2005 has been explained categorically by the Honble High Court in Jawahar Singhs case, therefore, that is binding on the Tribunal. As per L. Chandra Kumar Vs. U.O.I. & Others reported in AIR 1997 SC 1125, Tribunal is bound by the judgment of Honble High Court.
33. At this juncture it would be relevant to refer to the judgment of Honble Supreme Court in Rapti Commission Agency Vs. State of U.P. & Others reported in 2006 (6) SCC 522 wherein it was held as under:-
The High Court commented upon the correctness of the judgments observing that several larger Benches decisions were not considered. To say the least the High Courts approach is inappropriate. The said two decisions relates to issues on which there appears to be no contrary view taken by any larger Bench. The High Court could not have sat in judgment over the correctness of the judgments of the Supreme Court.
The same principle would apply to the Tribunal. Judicial discipline requires that the law interpreted by the Honble High Court should be followed by the Tribunal. Tribunal has no right to comment on the judgment of Honble High Court as suggested by the counsel for the applicant, therefore, the contention of the learned counsel for the applicant that the judgment of Jawahar Singh be declared as per incuriam is not sustainable in law.
34. Coming to the question what effect the judgment of Jawahar Singh would have on the Full Bench judgment of Tribunal in Ashok Kumar Meenas case, we find that even the Full Bench had taken the view that:-
The circulars issued are not the lone guidelines, statutory rules require to be followed in letter and spirit.
Taking note of the statutory Scheme, as augmented by the circulars, the total service records, positive and negative, including major and minor penalties are required to be scanned by the DPC before they make a recommendation.
However, it was decided that:-
(iii) only such censures would come in the way of an employee, which may have the element of corruption and moral turpitude during the last ten years in that rank as per clause (iii), the other censures separately referred in clause-v which do not have element of moral turpitude or dereliction of duty cannot come in the way of promotion except as mentioned in clause-v.
35. The above observation has not been approved of by the Honble High Court of Delhi in Jawahar Singhs case, therefore, the last part stands overruled by the Honble High Court.
36. In view of above discussion, we hold as follows:-
Judgment of Jawahar Singh given by Honble High Court cannot be declared as per incuriam.
Circular dated 7.2.2005 is binding but it would not supersede the statutory rules.
Interpretation of clause-v of circular dated 7.2.2005 as mentioned in para (iii) Supra. given by the Tribunal in Ashok Kumar Meena stands overruled by the judgment of Honble High Court in Jawahar Singhs case.
Let matter be placed before the respective Division Benches for deciding the OAs on merit.
Let a copy of this order be placed in OAs No. 2776/2008 and No.2343/2008 also.
(N.D.Dayal) (Meera Chhibber) ( Shanker Raju) (L.K.Joshi) (V.K. Bali) Member(A) Member(J) Member(J) Vice Chairman(A) Chairman Rakesh
I have gone through the judgment authored by Honble Mrs. Meera Chhibber, Member (J). I am in respectful agreement with the conclusion that has been arrived at. The issue has since already been dealt with by a Full Bench consisting of Chairman and two Vice Chairmen. The necessity to re-visit the said decision of the Full Bench arose because of a decision of a Division Bench of Honble Delhi High Court taking a view other than the one taken by the Full Bench of this Tribunal. Once, the judgment relied upon by the respondents of the Delhi High Court deals directly with the issue and the same is neither sub silentio nor per incuriam, it has to be followed irrespective of our view recorded in the Full Bench. It is an admitted position that judgment of the High Court, particularly when it may pertain to the High Court within the jurisdiction of which the Bench of the Tribunal is located, has to be followed. The law thus laid down by the Full Bench of this Tribunal has to be overruled.
(V.K. Bali) Chairman