Central Administrative Tribunal - Delhi
Mr. M L Khan S/O Mr. A A Khan vs North Delhi Municipal Corporation on 22 July, 2014
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.3619/2013 Order reserved on 17th day of July 2014 Order pronounced on 22nd day of July 2014 Honble Mr. Sudhir Kumar, Member (A) Honble Mr. A.K. Bhardwaj, Member (J) Mr. M L Khan s/o Mr. A A Khan F-13/32, Jogabai Extension Jamia Nagar, New Delhi .. Applicant (By Advocate: Mr. Raman Duggal) Versus 1. North Delhi Municipal Corporation Through Commissioner Dr. S P Mukherjee Civic Centre, 4th Floor J L Marg, New Delhi 2. South Delhi Municipal Corporation Through Commissioner Dr. S P Mukherjee Civic Centre, 9th Floor J L Marg, New Delhi 3. Director (Personnel) North Delhi Municipal Corporation Dr. S P Mukherjee Civic Centre, 5th Floor J L Marg, New Delhi 4. Union Public Service Commission Through its Secretary Dholpur House Shahjahan Road, New Delhi ..Respondents (By Advocates: Mr. Rajender Khatter for respondents 1 to 3 Mr. Naresh Kaushik for respondent 4) O R D E R
The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 praying therein:-
i) To hold and declare that Seal Cover Procedure adopted in the case of the Applicant for the vacancy year 1997-98 upto the year 2003 for the purposes of consideration for promotion as Executive Engineer (Civil) is baseless, unreasonable, arbitrary and unlawful.
ii) To hold and declare that since D.P.C. of the year 2008 for the post of Executive Engineer (Civil) the Applicant has been assessed Fit for promotion to the post of Executive Engineer (Civil) for the vacancy year 1997-98 and, therefore, the Applicant is entitled for said promotion as per law with all consequential benefits of seniority for further promotion etc. and accordingly pass suitable directions.
iii) To hold and declare that the date of promotion of the applicant to the post of Executive Engineer be treated and deemed as 27th May, 1998, i.e. the date when the applicant was promoted to the said post on ad hoc basis and consequently the seniority of the Applicant on the post of Executive Engineer be reckoned from the date of his adhoc promotion to the said post and the adhoc service rendered by the applicant on the said post of Executive Engineer shall be counted towards his regular services on the said post.
iv) Consequent to the prayers (i) to (iii) aforegoing pass suitable directions to the respondents to forthwith convene DPC for promotion of the applicant to the next higher post of Superintending Engineer (Civil). AND
v) To meanwhile pass suitable directions for promotion of the Applicant to the post of Superintending Engineer (Civil) on ad-hoc basis as per Rules and practice as prevalent in the M.C.D.
vi) To pass any other order or orders as this Honble Tribunal deem fit and proper.
vii) costs.
2. The salient grounds raised by Mr. Raman Duggal, learned counsel for applicant to espouse his cause are:-
i) When the respondents could not convene the Departmental Promotion Committee (DPC) as per the guidelines issued by the Department of Personnel & Training (DoPT) annually between 1997 to 2008, the recommendations of DPCs met on 15-16.7.2008 at 10.30 AM, 17.7.2008 at 11.00 AM, 18.7.2008 at 3.00 PM, 25.7.2008 at 4.00 PM, 28.7.2008 at 4.00 PM and 4.8.2008 at 4.00 PM for the panel year 1997-1998 could not have been kept in sealed cover on the basis of the disciplinary proceedings initiated vide RDA Case No.1/286/2003 in the year 2003.
ii) When the applicant had been given ad hoc promotion on 27.5.1998, it can be fairly presumed that the respondents needed to fill up the post of Executive Engineer and no conscious decision was taken not to fill up the vacancies on regular basis.
iii) Once the respondents failed to convene the DPC on regular intervals in terms of the guidelines issued by the DoPT for convening the DPC, they should consider the applicant for regular promotion with effect from May 2008 itself.
iv) Vide communication dated 27.4.2012 (Annexure A-3) the Central Establishment Department of Municipal Corporation of Delhi informed the Secretary, Union Public Service Commission (UPSC) that the DPC met in the year 2008 assessed the applicant fit for promotion and recommended inclusion of his name in the panel at Sl.No.8 (B), below Mr. Dilip Ramnani (Sl. No.8) for the vacancy year 1997-98, subject to his securing a clearance in the vigilance case pending against him and the competent authority furnishing the requisite integrity certificate in this regard.
3. The learned counsel also relied upon the judgments of Honble High Court of Delhi in Sunil Kumar Mehra v. Municipal Corporation of Delhi & another, 209 (2014) DLT 505 (DB) and H.B. Sharma v. Union of India, 1996 (39) DRJ 249 to further buttress his aforementioned arguments.
4. Mr. Rajender Khatter, learned counsel for respondent Nos. 1 to 3 submitted that once as on the date of meeting of the DPC in the year 2008 the RDA was pending against the applicant, the sealed cover procedure was resorted to and since the RDA ended with imposition of penalty of censure vide Vigilance Department office order No.1/286/ 2003/Vig./P/ GKG/2011/ 90 dated 28.2.2011, the sealed cover could not have been opened and the recommendations of the DPC could not be acted upon.
5. Mr. Naresh Kaushik, learned counsel for respondent No.4 UPSC submitted that:
i) For the purpose of evaluating the merit of the officer while preparing the year-wise panels, the scrutiny of the record of service of the officer should be limited to the records that would have been available had the DPC met at the appropriate time but if on the date the meeting of the DPC departmental proceedings are in progress, the sealed cover procedure is to be observed even if the departmental proceedings were not in existence in the year to which the vacancy related.
ii) If any penalty is imposed on an officer as a result of the disciplinary proceedings or he is found guilty in the court proceedings against him, the findings of the sealed cover cannot be acted upon, thus when in the present case the RDA initiated against the applicant culminated with the imposition of penalty of censure, the sealed cover procedure resorted to by the DPC met in the year 2008 could not have been opened.
iii) The sealed cover procedure is now well settled procedure in service jurisprudence and the procedure is adopted when an employee is due for promotion, increment, etc.
iv) No employee acquires a right to get the promotion from retrospective effect merely because he had acquired eligibility on such date or vacancy was available.
v) The ad hoc promotion, not made in accordance with the rules and procedure, cannot be treated as regular promotion.
6. Mr. Kaushik also relied upon the following judicial pronouncements:
High Court of Delhi Union of India & others v. Vijender Singh & others (W.P. (C) No.1188-90/2005 with connected petitions) decided on 29.11.2010 Apex Court Ch. Narayana Rao v. Union of India & others, JT 2010 (9) SC 346, Central Council for Research in Homeopathy v. Bipin Chandra Lakhera & others, 2011 (5) SCALE 124, Union of India etc. etc. v. K.V. Jankiraman, etc. etc., AIR 1991 SC 2010, Bank of India & another v. Degala Suryanarayana, AIR 1999 SC 2407, Delhi Jal Board v. Mahinder Singh, AIR 2000 SC 2767, Union of India & another v. R.S. Sharma, AIR 2000 SC 2337, Ram Ashish Dixit v. Chairman Purvanchal Gramin Bank Limited & another, (2013) 6 SCC 309
7. We heard the learned counsel for the respective parties and perused the records.
8. The applicant was appointed as Assistant Engineer (Civil) in Municipal Corporation of Delhi on 5.7.1990. He became eligible for promotion to the post of Executive Engineer (Civil) in the year 1996. Though the DPC met in the year 1996 but for want of sufficient vacancies the applicant could not find place in the zone of consideration for regular promotion. Thereafter no DPC for regular promotion to the post was held till the year 2008. The DPC, met in the year 2008 considered the applicant for his regular promotion against the panel year 1997-1998 but on account of pendency of RDA initiated against him in the year 2003, the sealed cover procedure was resorted to on its assessment and recommendation. The RDA culminated in the year 2011 with imposition of the penalty of censure upon the applicant. In the circumstances, the recommendation of DPC was acted upon. Aggrieved by his non-promotion, the applicant filed O.A. No.4126/2012, which was subsequently withdrawn with liberty to file fresh Original Application, thus he has filed the present Original Application.
9. In view of the rival contentions put forth by learned counsel for the parties and material placed on record, following propositions arise to be determined by us:
a) Whether in view of pendency of RDA against the applicant on the date of DPC the sealed cover procedure could be resorted?
b) Whether the applicant can be deemed as regular promotee with effect from the date of his ad hoc promotion made in the year 1998?
c) When no DPC for regular promotion was held for a decade, the applicant had been given ad hoc promotion in May 1998 and till 2003 no RDA was pending against him, whether sealed cover procedure could be resorted to by the DPC on its assessment and recommendations for promotion against the panel year 1997-1998, i.e., the year during which no RDA was pending against the applicant?,
d) Whether the applicant can be given regular promotion from retrospective date?
10. As far as the first proportion is concerned, as has been specifically provided in DoPT O.M. No.22011/5/86-Estt. (D) dated 10.4.1989 (Annexure R-5), if on the date of the meeting of the DPC departmental proceedings are in progress and under the existing instructions sealed cover procedure is to be followed, such procedure should be observed even if departmental proceedings were not in existence in the year to which the vacancy related. For easy reference, paragraph 6.4.3 of the aforesaid guidelines is reproduced hereinbelow:-
6.4.3 For the purpose of evaluating the merit of the officer while preparing the year-wise panels, the scrutiny of the record of service of the officer should be limited to the records that would have been available had the DPC met at the appropriate time. For instance for preparing a panel relating to the vacancies of 1978 and the latest available records of service of the officers either upto December 1977 or the period ending March, 1978 as the case may be, should be taken into account and not the subsequent ones. However, if on the date of the meeting of the DPC, departmental proceedings are in progress and under the existing instructions sealed cover procedure is to be followed, such procedure should be observed even if the departmental proceedings were not in existence in the year to which the vacancy related. The officers name should be kept in the sealed cover till the proceedings are finalised.
11. In the present case, in terms of the DoPT O.M. No.22011/4/91-Estt. (A) dated 14.9.1992, at the time of consideration for promotion, details of Government servants in the zone of consideration for promotion falling under the categories mentioned in paragraph 2 of the O.M. should be specifically brought to the notice of the DPC. In terms of said paragraph, the recommendations of DPC in respect of Government servant falling in any of the categories need to be kept in sealed cover. For easy reference, paragraphs 2 and 2.1 of the said O.M. are reproduced hereinbelow:-
2. At the time of consideration of the cases of Government servant for promotion, details of Government servant in the consideration zone for promotion falling under the following category should be specifically brought to the notice of the Departmental Promotion Committee:-
i) Government servants under suspension;
ii) 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 criminal charge is pending.
2.1 The Departmental Promotion Committee shall assess the suitability of Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC including unfit for promotion and the grading awarded by it will be kept in a sealed cover. The cover will be superscribed Findings regarding suitability for promotion to the grade/post of .in respect of Shri..(name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri.. The proceeding of the DPC need only contain the note The findings are contained in the attached sealed cover. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.
12. In K.V. Jankiramans case (supra), 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. In the said case, it was also held that if the disciplinary proceeding against an employee for his misconduct for earlier period is ignored while considering for promotion, then such proceedings would become meaningless. Relevant excerpt of the said judgment reads as under:-
..The DPC had for the first time met on June 3, 1988 for considering promotion to the Selection Grade. It is in this meeting that his juniors were given Selection Grade with retrospective effect from July 30, 1986, and the sealed cover procedure was adopted in his case. If no disciplinary proceedings were pending against him and if he was otherwise selected by the DPC he Would have got the Selection Grade w.e.f. July 30, 1986, but in that case the disciplinary proceedings against him for his misconduct for the earlier period, viz., between 1982 and 1985 would have been meaningless. If the Tribunal's finding is 'accepted it would mean that by giving him the Selection Grade w.e.f. July 30, 1986 he would stand rewarded notwithstanding his misconduct for the .earlier period for which disciplinary proceedings were pending at the time of the meeting of the DPC and for which again he was visited with a penalty. We, therefore, allow the appeal and set aside the finding of the Tribunal. There will, however, be no order as to costs.
13. In Bank of India & another v. Degala Suryanarayana (supra), it could be held thus:-
14. However, the matter as to promotion stands on a different footing and the judgments of the High Court have to be sustained. The sealed cover procedure is now a well established concept in service jurisprudence. The procedure is adopted when an employee is due for promotion , increment etc. but disciplinary/criminal proceedings are pending against him and hence the findings as to his entitlement to the service benefit of promotion, increment etc. are kept in a sealed cover to be opened after the proceedings in question are over (see Union of India etc. etc. v. K.V. Jankiraman etc.etc, AIR (1991) SC 2010, 2113. As on 1.1.1986 the only proceedings pending against the respondent were the criminal proceedings which ended into acquittal of the respondent wiping out with retrospective effect the adverse consequences, if any, flowing from the pendency thereof. The departmental enquiry proceedings were initiated with the delivery of the charge-sheet on 3.12.1991. In the year 1986-87 when the respondent became due for promotion and when the promotion committee held its proceedings, mere were no departmental enquiry proceedings pending against the respondent. The sealed cover procedure could not have been resorted to nor could the promotion in the year 1986-87 withheld for the D.E. proceedings initiated at the fag end of the year 1991. The High Court was therefore right in directing the promotion to be given effect to which the respondent was found entitled as on 1.11986. In the facts and circumstances of the case, the order of punishment made in the year 1995 cannot deprive the respondent of the benefit of the promotion earned on 1.1.1986.
14. In Delhi Jal Board v. Mahinder Singh (supra), the Apex Court viewed as under:-
2. The learned Single Judge of the High Court accepted the writ petitioner's contention following two judgments of this Court reported in [1999] 5 SCC 762 Bank of India v. Degala Suryanarayana and in [1998] 4 SCC 155 State of A.P. v. N. Radhakrishan and allowed the writ petition. It was held that once the first disciplinary inquiry resulted in favour of the writ petitioner, the benefit of the findings of DPC in the sealed cover should be given to the writ petitioner notwithstanding the pendency of a second inquiry. In the two judgments of this Court which were followed by the learned Single Judge, it was held that if a person's case had been considered for promotion by the Departmental Promotion Committee and because of pendency of certain charges, the findings of DPC were kept in a sealed cover, he was entitled to the benefit of the findings of the Selection, if they were in his favour if the disciplinary inquiry ended in his favour, notwithstanding the fact that by that date, some other inquiry might have been pending against him.
15. In Union of India & another v. R.S. Sharma (supra), it could be held thus:-
16. We are not impressed by the said arguments for two reasons. One is that, what the Department did not do is not the yardstick indicated in paragraph 7 of the Sealed Cover Procedure, what is mentioned therein is that it cannot apply to the Government servant who is not actually promoted by that time. Second is that, the stand taken up by the Department is that in spite of deletion of clause (iv) of the second paragraph, the recommendations of the DPC must remain in the sealed cover on account of the conditions specified in clause (iii) of the said paragraph by virtue of the operation of paragraph 7 thereof. We cannot say that the said stand was incorrect and, therefore, we are unable to blame the Department for not opening the sealed cover immediately after 31.7.1991.
17. Learned counsel for the respondent made an endeavour to contend that in the light of the decision of this Court in Union of India vs. K.V. Janakiraman {1991 (4) SCC 109} the Sealed Cover Procedure can be resorted to only after Charge Memo is received or a charge-sheet is filed and that unless such an event had happened at the relevant time the Government employee cannot be denied of his promotion, if he is otherwise entitled to it. Learned counsel also submitted that Janakiraman was since followed in Union of India vs. Dr. Sudha Salhan {1998(3) SCC}; Bank of India vs. Degala Suryanarayana {1999(5) SCC 762}. The clauses of second paragraph of the Sealed Cover Procedure considered in Janakiraman were not those involved in the present case and hence that decision is of no avail to the respondent. In the other two decisions the facts warranted application of the ratio contained in Janakiraman. The added factor in these two cases was that the public servant concerned had been exonerated of the charges framed by the criminal courts. In the present case the respondent is still facing the trial for serious offences, and hence the situation is different.
18. We may also point out, in this context, that in Delhi Development Authority vs. H.C. Khurana {JT 1993(2) 695} and Union of India vs. Kewal Kumar {JT 1993 (2) 705} this Court found that the ratio in Janakiraman is applicable only to the situations similar to the cases discussed therein, and hence the Sealed Cover Procedure resorted to by the DPC in those two cases was upheld by this Court.
19. In our opinion the Tribunal has erred in overlooking paragraph 7 of the Sealed Cover Procedure (supra) and hence the direction issued by it as per the impugned judgment cannot be sustained. We, therefore, allow these appeals and set aside the said direction.
16. Also in Ram Ashish Dixit v. Chairman Purvanchal Gramin Bank Limited & another (supra) 9. We have considered the submissions made by the learned counsel.
10. In the facts of this case, it would not be possible to agree with the appellant that the action of the Bank is either arbitrary or without legal sanction. The appellant did not have any right to be promoted automatically on completion of minimum length of service. He had to be declared suitable for promotion on the criteria applicable. At this stage, we may usefully refer to the observations made by this Court in Paragraph 29 of the judgment in Union of India and others versus K.V. Jankiraman and others (supra) wherein it is observed as follows:-
On principle, for the same reasons, the officer cannot be rewarded by promotion as a matter of course even if the penalty is other than that of the reduction in rank. An employee has no right to promotion. He has only a right to be considered for promotion. 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 a 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 expected 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 penalised in praesenti. When an employee is held guilty and penalised and is, therefore, not promoted at least till the date on which he is penalised, he cannot be said to have been subjected 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.
11. In our opinion, the aforesaid observations are fully applicable to the facts and circumstances of this case.
12. The criteria for promotion from Junior Management Grade-I to Middle Management Grade-II is on the basis of the seniority- cum-merit. Clearly therefore, the fact that the appellant has been punished for a misconduct, the same would form a part of his record of service which would be taken into consideration whilst adjudging his suitability on the criteria of seniority-cum-merit. If on such assessment of his record of service the appellant is not promoted, it cannot be said to be by way of punishment. It is a non-promotion on account of the appellant not reaching a suitable standard to be promoted on the basis of the criteria. In view of the above, we find no merit in the civil appeal. The same is, accordingly, dismissed.
17. As far as the issue of promotion with retrospective effect is concerned, in Union of India & others v. Vijender Singh & others (supra), the Honble High Court of Delhi viewed as under:-
43. It is thus apparent that service jurisprudence does not recognize the jurisprudential concept of deemed retrospective promotion and unless there exists a rule or there exists a residual power and in exercise of the implementation of the rule or in exercise of power conferred by the residual rule a decision is taken or can be taken to grant retrospective promotion, no person can claim a right to be promoted from the date when the vacancy accrued and he must take the promotion with its benefits from the date of actual promotion.
46. We may lodge a caveat. In the absence of any pleadings, the issue pertaining to qualifying service for purposes of further promotion to the post of Executive Engineer has not been decided by us and thus the said issue would be left open. Further, what would be the effect of the applicability of the next below rule i.e. when a person junior in the seniority list becomes eligible for promotion, whether the person above, who has not rendered the qualifying service would or would not be entitled to be considered for promotion is also an issue which is left open. Needless to state the respondents would be permitted to predicate a claim qua eligibility on the said issues. We may note that to a pointed question: Whether any promotions have been effected to the post of Executive Engineer and in the process the respondents have been left out vis-`-vis those who are shown junior to them in the seniority list and who became Assistant Engineers in the quota of seniority subject to fitness category, the answer was a categorical No. Thus, as of today, for purposes of further promotion all the effected parties have acquired the relevant eligibility which were informed is 8 years regular service in the grade of Assistant Engineer and thus on said account the issue pertaining to qualifying service for further promotion has been rendered meaningless. The only issue which would be surviving would be back wages and the same stands decided against the respondents.
18. As far as the plea of the applicant for regularization from the date of ad hoc promotion is concerned, it is stare decisis that unless the ad hoc promotion is made after following the process prescribed for regular promotion, such promotion cannot be treated as regular promotion and ad hoc service cannot be taken into account for the purpose of seniority.
19. In the case of Ch. Narayana Rao v. Union of India & others (supra), Honble Supreme Court viewed that the seniority of petitioner initially appointed on ad hoc basis in the year 1981 would be counted from the date of his qualifying the proficiency test in stenography, i.e., in 1992. In the said case, petitioner was not given benefit of ad hoc service from 1981 to 1992, i.e., the date till he was subjected to process prescribed for regular appointment to the post in question. Paragraph 21 to 24 of the judgment read as under:-
21. The view which has been taken by us hereinabove finds favour from a recent judgment of this Court reported in (2009) 4 SCC 170 titled, Union of India Vs. Dharam Pal & Ors. Perusal of the said judgment shows that the cases on which we have placed reliance have also been fully relied upon by learned two Judges of this Court while to dealing with the said case. Succinctly, it has been held in paragraph 25 and 27 as under :
25. It is, however, also well settled that where the initial appointment is only ad-hoc, not according to rules and made as a stop-gap arrangement, the period of officiation in such post cannot be taken into account for considering the seniority.
26.
27. When an ad-hoc appointment is made, the same must be done in terms of the rules for all purposes. If the mandatory provisions of the rules had not been complied with, in terms of Direct Recruit Class II Engineering Officers' Association Vs. State of Maharashtra & Ors. (1990) 2 SCC 715, the period shall not be taken into consideration for the purpose of reckoning seniority. Furthermore, it is one thing to say that an appointment is made on an ad-hoc basis but it is another thing to say that inter se seniority would be determined on the basis laid down in another rule.
22. We are, therefore, fortified in our reasoning as adopted in the aforesaid Appeal.
23. Thus, looking to the matter from all angles, we are of the considered view that no relief can be granted to the Appellant. His seniority has been correctly worked out only from the date he had passed the Stenography Test as contemplated under the Rules approved by Staff Selection Commission.
24. Thus, the appeal being devoid of any merit and substance is hereby dismissed but with no order to costs.
20. Aforementioned view taken by the Honble Supreme Court is further reiterated in Central Council for Research in Homeopathy v. Bipin Chandra Lakhera & others (supra). Judgment delivered by Honble Supreme Court in said case reads as under:-
Heard learned counsel for the appellant and respondent No. 1. As regards the other respondents in respect of whom service is complete no one has entered appearance on their behalf so far. This Appeal has been filed against the impugned judgment & order dated 24.03.2004 passed by the High Court of Sikkim in Writ Petition (Civil) No. 542 of 1998. The facts have been given in the impugned judgment and order and hence we are not repeating the same here, except where necessary. The short question in this Appeal is whether ad hoc service of respondent No. 1 from 1984 before his regularisation with effect from 05.01.1996 can be added for the purpose of seniority. We are of the opinion that it cannot. Admittedly, respondent No. 1 was appointed as Research Assistant (Homeopathy) in the service of the appellant on purely ad hoc basis by order dated 03.02.1984 till 31.03.1984 or till the post is filled on a regular basis whichever was earlier.
This appointment was done without any regular selection. It may be noted that respondent No. 1 herein (Writ petitioner before the High Court) had not applied for appointment in response to any advertisement issued by the appellant. In his application respondent No. 1 stated that "I have come to know through some reliable sources that there is a post of Research Assistant lying vacant in the Central Council for Research in Homeopathy." Accordingly, respondent No. 1 was offered the post on a purely ad hoc basis vide order dated 03.02.1984 clearly stating that his appointment was till 31.03.1984 or till a regularly selected candidate joins, whichever was earlier. Thus, this appointment was made without following any procedure. The tenure was extended by the appellant from time to time. The post of Research Assistant was advertised in 1986 and respondent No. 1 applied for the post and was called for an interview before a Selection Committee on 29.06.1987 but was not found suitable. However, he was continued on ad hoc basis in view of an interim order passed by the High Court in a writ petition.
The post was again advertised in 1995 for regular appointment and respondent No. 1 again applied, and this time he was successful and given regular appointment with effect from 05.01.1996. It has been held by this Court in Ch. Narayana Rao Vs. Union of India & Ors., (2010) 10 SCC 247, and State of West Bengal & Ors. Vs. Aghore Nath Dey & Ors., (1993) 3 SCC 371, that ad hoc service before regularisation cannot be counted for seniority. It was contended by learned counsel for respondent No. 1 that some others similarly situate have been given retrospective regularisation.
This is not correct. No one has been given benefit of ad hoc service for the purpose of seniority. The persons mentioned in the writ petition are those persons who had been selected earlier, whereas respondent No. 1 had not been selected. Such persons have been given seniority only from the date of their regular appointment after selection. It has been pointed out in paragraph 17 of the counter affidavit filed by the Council before the High Court that these persons were given seniority from the date of their regular appointment after a regular selection.
Thus, Dr. Gautam Rakshit was appointed on ad hoc basis on 10.08.1987, but thereafter he faced a regular selection and was selected and given regular appointment on 12.04.1988. He has been given seniority from 12.04.1988 and not from 10.08.1987. Similar is the case of Dr. (Miss) I.M. Kumar, Dr. G.K. Mathew and Dr. Mohan Singh. Hence, their cases are clearly distinguishable. In view of the decision of this Court in Ch. Narayana Rao's case (supra), we allow this Appeal and set aside the impugned judgment and order of the High Court and dismiss the writ petition. No costs.
21. As far as the judgment of Honble High Court of Delhi in the case of Sunil Kumar Mehra (supra) is concerned, in the said case the High Court had found that the ad hoc promotion of the petitioner to the post of Additional Town Planner was in terms of the available Recruitment Rules. In the present case, it is not so. Apparently, the ad hoc promotion of the applicant was not based on the recommendations of the DPC prescribed for regular promotion. Paragraph 32 of the said judgment in Sunil Kumar Mehras case is reproduced hereinbelow:-
32. In the instant case, it is not in dispute that the ad-hoc promotion of the petitioner to the post of Additional Town Planner was in terms of the applicable Recruitment Rules. In view of above legal position, it has to be held that the seniority of the petitioner on the post of Additional Town Planner has to be reckoned from the date of his ad-hoc appointment to the said post. As a necessary corollary thereof, the ad-hoc service rendered by the petitioner on the post of Additional Town Planner shall be counted towards his regular service on the said post.
22. In Chief of Naval Staff & another v. G. Gopalakrishna Pillai & others, (1996) 1 SCC 521, it could be held thus:-
It, however, appears to us that in the said case, this Court has only reiterated the principle that if an employee had been appointed on ad hoc or temporary basis exceeding the quite fixed for such appointment such employee would be entitled to get the credit of continuous officiation in fixing seniority provided such ad hoc or temporary appointment had been made by a regularly constituted body for holding the selection of the candidates to be appointed. In the instant case, the respondent Sri Pillai was not selected by a regularly constituted selection body for giving ad hoc appointments to the post of the Storekeeper and on such selection he had continued in ad hoc service till regular appointment to such post was made. On the contrary, the case of Sri Pillai is that while he had been holding ad hoc posts, he got selected on a regular basis to the said post of Storekeeper. Hence, the decision relied on by the learned counsel for the respondent is not applicable in the facts and circumstances of this case. It also appears to us that the Tribunal in passing the impugned order has relied on condition `B' as referred to in the decision of the Constitution Bench in Direct Recruits Class II Engineering Officers' Association (supra) in support of the impugned order. In our view, the principle enunciated in the said case is not applicable in the facts of this case because the initial appointment of Sri Pillai by way of ad hoc arrangement, was not made by following the procedure laid down by the Rules as referred to in Condition-B in the said decision. Hence, the decision of the Tribunal cannot be sustained. We, therefore, allow this appeal and set aside the impugned order without however any order as to costs.
23. In view of the aforesaid, we are of the view that unless the ad hoc promotion is made by following the process prescribed for regular promotion such promotion cannot be deemed as regular promotion.
24. As has been canvassed by Mr. Raman Duggal, learned counsel for applicant, in the peculiar facts of the case, at great length and in depth that once the applicant had been given ad hoc promotion in the year 1998 and on the date of initiation of RDA against him and even thereafter he was continued on the promotional post, the regular DPC met in the year 2008 could not have resorted to sealed cover on its assessment and recommendations regarding the promotion of the applicant against the panel year 1997-1998. According to him, in the case of a person, who was allowed to continue on promotional post on ad hoc basis for a decade, it cannot be viewed that the recommendation for his regular promotion, despite pendency of the RDA against him, would amount to reward for his misconduct, for the simple reason that he had assumed the charge of the higher post a decade ago. Such submission put forth by learned counsel for applicant is not without basis. The provision contained in paragraph 6.4.3 of the DPC guidelines issued vide DoPT O.M. No.22011/5/86-Estt. (D) dated 10.4.1989 can be applied in a case where the DPC met on regular intervals, as provided in paragraph 3.1 of the guidelines, which reads as under:-
3.1 The DPCs should be convened at regular annual intervals to draw panels which could be utilised on making promotions against the vacancies occurring during the course of a year. For this purpose it is essential for the concerned appointing authorities to initiate action to fill up the existing as well as anticipating vacancies well in advance of the expiry of the previous panel by collecting relevant documents like CRs, integrity certificates, seniority list etc. for placing before the DPC. DPCs could be convened every year if necessary on a fixed date e.g., 1st April or May. The Ministries/ Departments should lay down a time schedule for holding DPCs under their control and after laying down such a schedule the same should be monitored by making one of their officers responsible for keeping a watch over the various cadre authorities to ensure that they are held regularly. Holding of DPC meetings need not be delayed or postponed on the ground that recruitment rules for a post are being reviewed / amended. A vacancy shall be filled in accordance with the recruitment rules in force on the date of vacancy, unless rules made subsequently have been expressly given retrospective effect. Since Amendments to recruitment rules normally have only prospective application, the existing vacancies should be filled as per the recruitment rules in force.
25. Since the delay in DPC is acknowledged in paragraph 4.1 of the aforesaid guidelines, the provision for preparation of the year-wise panel is made in the guidelines in the case of delayed DPC, thus the sealed cover procedure may be resorted to even in such cases also where the DPC is held after some delay and the disciplinary proceedings are pending against an employee on the date of DPC. For easy reference, paragraph 4.1 of the said guidelines is extracted hereinbelow:-
4.1 It is essential that the number of vacancies in respect of which a panel is to be prepared by a DPC should be estimated as accurately as possible. For this purpose the vacancies to be taken into account should be the clear vacancies arising in a post/grade/service due to death, retirement, resignation, regular long term promotion and deputation or from certain of additional posts on a long term. As regards vacancies arising out of deputation, only those cases of deputation for periods exceeding one year should be taken into account, due note, however, being kept also of the number of deputations likely to return to the cadre and who have to be provided for. Purely short term vacancies created as a result of officers proceedings on leave, or on depuration for a shorter period, training etc., should not be taken into account for the purpose of preparation of a penal. In cases where there has been delay in holding DPCs for a year or more, vacancies should be indicated year-wise separately.
26. However, a distinction need to be made in such cases where an employee is continued on promotional post for a decade and on the date of his ad hoc promotion no RDA was pending against him, and the DPC convened for regular promotion found him fit for promotion. In such cases, the employee cannot be put to such disadvantageous position that even a person junior to him by ten years is given regular promotion against the vacancy of the year when his service record was clean and he was even fit for regular promotion. In H.B. Sharmas case (supra), Honble High Court of Delhi after taking note of paragraphs 3.1, 4.1, 6.4.4, 17.10 and 17.11 of the aforementioned guidelines, viewed that once the DPCs are not held on regular intervals, the employee need to be given regular promotion from the date of ad hoc promotion. Though the issue involved in the said case is distinguishable on facts from the one involved in the present case. In the said case, the question cropped up for consideration of the High Court was that when the ad hoc appointment continued uninterruptedly till regularization of service by the DPC or the UPSC, whether the promotion should relate back to the date of ad hoc promotion or not. In other words, in the said case, the controversy involved was whether in the case of ad hoc promotion followed by regular promotion, the ad hoc service should be counted for the purpose of seniority or not. In the present case, it is not so. Here the ad hoc promotion of the applicant was not followed by regular promotion. In the year 2008, the DPC resorted to sealed cover on its recommendation regarding the regular promotion of the applicant. Subsequently, the RDA initiated against him culminated with imposition of minor penalty. Besides, as has been viewed in the aforementioned cases of the Honble Supreme Court in Ch. Narayana Rao v. Union of India & others & Central Council for Research in Homeopathy v. Bipin Chandra Lakhera & others and Chief of Naval Staff & another v. G. Gopalakrishna Pillai & others (supra), the ad hoc promotion, not made in accordance with the rules, cannot be counted for the purpose of seniority.
27. However, we can draw support from the aforementioned judgment of Honble High Court on the issue that it was incumbent upon the MCD to hold the year-wise DPC and once it is failed to do so, the applicant, who was eligible and entitled to be considered for promotion in the year 1997-1998 when no RDA was pending against him, cannot be put to disadvantageous position, particularly for the reason he was given ad hoc promotion in the year 1998. For easy reference, relevant excerpt of the judgment of Honble High Court of Delhi in H.B. Sharmas case (supra), reads as under:-
26 Mr. Gupta submitted that when there instruction are carefully examined, this can be sagely concluded without any fear or contradiction that these executive instructions are also not followed by the corporation. Even in the instant case, the DPC has not met from 1986 to 1991 when there was vacancies to be filled by promotion. Not even the process of promotion was initiated within the stipulated period. Therefore, the Corporation is hardly justified in placing reliance on few instructions which may suit their stand in a particular case of a particular point of time. If the Corporation wants to follow instructions, they must meticulously fellow all the instructions in all case. In any event, the Corporation cannot be permitted to ignore the judgments of the Supreme Court.
28. Besides, in none of the judgments relied upon by Mr. Naresh Kaushik, learned counsel for UPSC the issue that what should be the fate of an employee, who was working on promotional post against available vacancy for a decade on ad hoc basis and against whom no RDA was pending for four years after his ad hoc promotion, if after a decade of ad hoc promotion, at the time of regular DPC such disciplinary proceedings which finally culminated with imposition of minor penalty of censure were pending against him has been specifically addressed to.
29. It is stare decisis that the judicial precedents cannot be followed as statute and need to be referred to with reference to the facts involved therein. In Collector of Central Excise, Calcutta v. M/s Alnoori Tobacco Products & another, 2004 (6) SCALE 232, it has been held thus:
12. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. V. Horton (1951 AC 737 at p.761), Lord Mac Dermot observed:
"The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge."
13. In Home Office v. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid said, "Lord Atkin's speech.....is not to be treated as if it was a statute definition It will require qualification in new circumstances." Megarry, J in (1971) 1 WLR 1062 observed: "One must not, of course, construe even a reserved judgment of Russell L.J. as if it were an Act of Parliament." And, in Herrington v. British Railways Board (1972 (2) WLR 537) Lord Morris said:
"There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case."
14. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
15. The following words of Lord Denning in the matter of applying precedents have become locus classicus:
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
30. The instructions / guidelines issued by the Government are applicable when all provisions of the same are complied with. Once the portion of the guidelines is flouted by the Department itself, the other part of the same, if applied, lead to skewed consequences for those, who are governed by the same.
31. Besides, as has been noticed hereinabove, it is not so that the MCD did not open the sealed cover resorted to the assessment and recommendations of the DPC in respect of promotion of the applicant for the vacancy year 1997-1998. The sealed cover was opened on 27.3.2011. Paragraph (d) of the communication dated 27.4.2012 sent by the Central Establishment Department, MCD to the Secretary, UPSC is reproduced hereinbelow:-
d) Thereafter, with the approval of the Commissioner/ MCD, sealed cover in respect of Shri M.L. Khan was opened on 27.3.2011. The recommendation of UPSC reads as follows:-
Having examined the character roll of Sh. Mohd. Liaq Khan, against whom a vigilance case is pending the Departmental Promotion Committee assessed him as Fit/ On the basis of this assessment, therefore, the Committee recommend that his name may be included in the panel at Sl. No.8(B) below Shri Dilip Ramnani (Sl.No.8) for the vacancy year 1997-98, subject to his securing a clearance in the vigilance case pending against him and the competent authority furnishing the requisite integrity certificate in his regard.
32. In the peculiar facts of the case and having due regard for the judgment of Honble High Court in H.B. Sharmas case (supra), we dispose of the present Original Application with direction to the respondents to give promotion to the applicant as Executive Engineer (Civil) against the vacancy of the year 1997-1998 with effect from the date Mr. Dilip Ramnani, as referred to in the communication dated 27.4.2012 (ibid), has been promoted. No costs.
( A. K. Bhardwaj ) ( Sudhir Kumar ) Member (J) Member (A) /sunil/