Central Administrative Tribunal - Delhi
K. P. Singh S/O Chunni Lal vs Municipal Corporation Of Delhi Through on 21 December, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.3969 of 2010 Misc. Application No.2986/2010 This the 21st day of December, 2010 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) 1. K. P. Singh S/o Chunni Lal, R/oD-104, New Jyoti Apartment, Sector-4, Dwarka, New Delhi. 2. Sushil Kumar S/o Vijay Singh, R/o B-713, MIG, DDA Flats, Est Loni Road, Shahdara, Delhi-110093. Applicants ( By Shri A. K. Bhardwaj with Shri M. K. Bhardwaj, Advocate ) Versus 1. Municipal Corporation of Delhi through its Commissioner, Town Hall, New Delhi. 2. Director (Personnel), Municipal Corporation of Delhi, Town Hall, Chandni Chowk, Delhi-110006. Respondents ( By Shri Narender Dutt Kaushik for Shri Arun Bhardwaj, Adv. ) O R D E R Justice V. K. Bali, Chairman:
K. P. Singh and Sushil Kumar, Superintending Engineers, so holding the said post on ad hoc basis with the respondent Municipal Corporation of Delhi, the first respondent herein, have filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking to set aside order dated 22.11.2010, vide which their ad hoc promotion to the post of Superintending Engineer (Civil) in respect of the applicants has been withdrawn from 20.7.2007 and 7.9.2007 respectively, i.e., the dates of issuance of charge-sheet/suspension. Perusal of the impugned order reveal that the same came to be passed in view of the orders passed by this Tribunal dated 12.8.2010 in OA No.3219/2009, and DOP&T OM dated 14.9.1992. In consequence of setting aside of the order aforesaid, the applicants pray for a direction to be issued to the respondents to treat their promotion to the post of Superintending Engineer (Civil) as regular since 12.4.2007.
2. This matter came up before us for motion hearing on 25.11.2010, when some clarifications were sought for. Notices in the matter were issued on 29.11.2010. As regards the interim prayer of the applicants for staying the operation of the impugned order, we mentioned that the same would be considered after hearing the other side. On 7.12.2010, we recorded the following order:
Mr. Bhardwaj, who appears on behalf of the respondents, states that reply shall be filed within two days. We are of the considered view that instead of dealing with the interim prayer made by the applicant, it would be better to dispose of the Original Application.
Let the reply be filed within two days, as prayed for by the counsel for the respondents, with an advance copy to the counsel opposite who may file the rejoinder, if be may so desire.
List the matter for arguments on 16.12.2010 as Item No.1 subject to part-heard. The respondents have been served and they have filed their reply.
3. Brief facts as culled out from the Original Application reveal that whereas K. P. Singh, the 1st applicant, joined as Junior Engineer (Civil) in the year 1979 and was promoted as Assistant Engineer (Civil) on current duty charge and thereafter on regular basis in the year 1989 and subsequently as Executive Engineer (Civil) on ad hoc basis in the year 2000, Sushil Kumar, the 2nd applicant, joined as Assistant Engineer (Civil) as direct recruit in the year 1990 and thereafter promoted to the post of Executive Engineer in the year 1997 on ad hoc basis. It is the case of the applicants that they were promoted as Executive Engineers after subjecting them to the same process as prescribed for making regular promotion. Since sufficient number of vacancies in the grade of Superintending Engineer became available, the respondents initiated the process for making promotion in the said grade and accordingly asked the vigilance department to intimate about the status of the eligible candidates, including the applicants, with reference to their service record. It was stated in the communication in that regard that information regarding pendency of RDA/police cases be intimated. The applicants, it is their case, were not facing any departmental proceedings, and, therefore, their cases were considered for promotion to the post of Superintending Engineers with others, namely, V. R. Bansal, Rajesh Taneja, V. K. Malhotra, Ramesh Kumar, Manish Rastogi and R. K. Ailabadi. They were all promoted vide order dated 12.4.2007. Insofar as the 1st applicant is concerned, the order of his promotion was withdrawn the very next day, i.e., 13.4.2007, which, according to him, was a mistake and was rectified on the representation made by him. He was again promoted on ad hoc basis vide order dated 13.7.2007. It is their case that after joining on the promoted post, they discharged their duties with sincerity and devotion and their work has been appreciated. In July and September, 2007 respectively, both the applicants were subjected to departmental proceedings, which are still pending. The enquiry proceedings have been completed, but it is the case of the applicants that nothing has come out against them. The allegations subject matter of enquiries against them pertained to the period when they were serving as Executive Engineers. It is pleaded that the performance of the applicants as Superintending Engineer has been outstanding which can be verified from records.
4. When the applicants had continued to work on the promotional post of Superintending Engineer for more than two years, one Shri D. S. Dhanda, who was facing departmental proceedings as also criminal case, filed OA No.3219/2009 in this Tribunal, wherein he wrongly stated that the applicants were assigned look after charge of the post of Superintending Engineer in spite of pendency of cases against them. He, it is the case of the applicants, deliberately did not disclose that both the applicants were promoted on ad hoc basis after having been subjected to the same process as followed for regular promotion, and that they were not facing any case pertaining to their service as Superintending Engineer (Civil). Insofar as the departmental proceedings are concerned, the same, as mentioned above, pertained to the allegations when they were Executive Engineers and the same are continuing despite the fact that nothing has come against them. In the OA aforesaid, Shri Dhanda is stated to have deliberately not disclosed the fact that as per OM dated 14.9.1992, a Government servant who is facing departmental proceedings may be given ad hoc promotion, and misled the Tribunal on all counts simply with a view to get adverse order against the applicants. Even though, this Tribunal while disposing of the OA aforesaid observed that However, as mentioned above, since these officers have not been arrayed as party respondents, it would not be possible to set aside the orders assigning to them the look-after charge of the post of Superintending Engineer, nor it may be possible to give any final opinion on the issue, the respondents still acted illegally and arbitrarily by all of a sudden issuing the impugned order dated 22.11.2010 reverting the applicants from the post of Superintending Engineer to that of Executive Engineer by misinterpreting the OM dated 14.9.1992. It is the case of the applicants that the respondents have not applied their mind and have passed the orders just to please the applicant in OA No.3219/2009, and that had the respondents applied their mind and considered the OM aforesaid, they would not have issued the impugned order as the OM aforesaid deals with a situation where DPC is convened for grant of regular/ad hoc promotion and at that time the officer concerned is either under suspension or has been charge-sheeted in departmental/criminal proceedings. It is the case of the applicants that none of the conditions were applicable in their case at the time of their ad hoc promotion, and furthermore, the OM aforesaid nowhere stipulates about review of the screening committee/DPC on issuance of chargesheet/framing of charge etc. subsequently. The officials, it is pleaded, seem to have misled the competent authority both in the matter of reconsideration of the case of the applicants and also at the time of contesting OA No.3219/2009, and that if the Tribunal was made aware of the correct facts, even the observations on the basis of which the impugned order has been passed, would not have been made. In any case, this Tribunal, it is pleaded, has not given final opinion on the issue. It is then pleaded that the respondents while passing the impugned order resorted to pick-and-choose policy, and meted out hostile discrimination to the applicants. Insofar as continuation of individuals as SE, EE and AE even after facing departmental proceedings/criminal cases is concerned, it is pleaded that there are more than 100 individuals who are continuing on promotional post even after issuance of chargesheet within one year of promotion, and that there are many similarly placed persons, namely, S/Shri R. K. Ailabadi, Pradeep Bansal, Rajender Prasad, Naveen Verma, Vishwaratan Bansal, Arunesh Upadhyaya, Ashok Mittal, Rajesh Khanna, Subhash Doderai and Suresh Chandra, all SEs, so promoted along with the applicants, who are continuing on the said post, despite the fact that charge-sheets in their cases have been issued within one year of promotion, and no action has been taken against them. When on passing of the impugned order, the applicants approached the respondents, they were only told that the order has been passed in compliance of the orders passed by this Tribunal, and if they wanted any relief, they should approach the Tribunal.
5. The applicants have filed a additional affidavit on 26.11.2010, wherein they have mentioned that when their case for promotion to the post of SE was taken up, other similarly placed persons were also considered, and finally the respondents filled up all the posts of SE (Civil) by ad hoc promotion, and further that there was not a single SE (Civil) who can claim himself to be a regularly promoted as such. It is pleaded that more than ten similarly placed persons who have been allowed to continue, are facing disciplinary proceedings initiated against them by issuing charge memo within one year of promotion, and that no action has been taken against any of the said persons, namely, R. K. ailabadi, Pradeep Bansal, Rajender Prasad, Naveen Verma, Vishwaratan Bansal, Arunesh Upadhyaya, Ashok Mittal and Rajesh Khanna, whereas the applicants have been reverted. It is further pleaded that there is no power vested with the authorities to revert a Government servant with retrospective effect, and that the applicants have been subjected to said wrong action without any justification and by violating DOP&T OM dated 14.9.1992, and that OM dated 24.12.1986 would also not be attracted in the case of the applicants as neither they have been appointed/promoted as SE on ad hoc basis against a short term or leave vacancy nor allowed to officiate, but have been promoted on ad hoc basis against clear vacancies of SE (Civil). It is pleaded that the applicants have completed more than three years, and, therefore, cannot be said to be appointed against short term or leave vacancies.
6. Pursuant to notice issued by this Tribunal, the respondents by filing their reply have contested the cause of the applicant. There would be no need to make a mention of the preliminary objections and preliminary submissions as referred to in the reply as nothing based thereon has been urged during the course of arguments. While giving reply on merits, the facts are not much in dispute. We may, however, mention that it is pleaded that DPC for the post of Executive Engineer (Civil) was not held due to some administrative and technical reasons, but, as per guidelines, where DPC had not met for number of years, prescribed conditions which are required to be followed, were well taken care of. Such conditions are determination of regular vacancies of the previous years, consideration of officers against the vacancies as per their eligibility and preparation of zone of consideration year-wise. It is pleaded that best efforts were made by the respondents and in compliance of the direction of the court, DPC was held in July-August, 2008 in UPSC for the vacancy years 1997-98 to 2007-08, and as per vacancy position in the grade of EE (Civil), names of the applicants were considered for promotion by DPC against the vacancy year 2007-08 and they have been recommended by the DPC for officiating promotion as notified vide office order dated 8.9.2008. It is further pleaded that prior to holding of DPC ad hoc promotions/assignment of look-after charge were being made on the basis of seniority list of Assistant Engineer (Civil). The applicants and Shri R. P. Garg were promoted on the post of Superintending Engineer (Civil) during the time DPC to the post of Executive Engineer (Civil) was not held. The applicants and others were on the same platform. At the time of DPC the applicants and R. P. Garg were facing disciplinary cases wherein charge-sheets had been issued, and the DPC assessed them and their assessment has been kept in sealed cover. It is pleaded that after exoneration in the disciplinary cases, sealed cover would be opened and officiating promotion to the post of Executive engineer (Civil) would be given to them. S/Shri Arunesh Upadhyaya, Rajendra Prasad and a. K. Ailabadi are stated to be regular Executive engineers Civil) and as per recommendation of DPC, officiating promotion to the post of Executive Engineer (Civil) and thereafter ad hoc promotion to the post of Superintending Engineer (Civil) was given to them. As regards illustrations of ad hoc promotions to the post of AE (Civil) in respect of JEs against whom cases are pending and chargesheet has been filed in the court of law, it is pleaded that S/Shri Pankaj Goel, R. P. Chahal, Mohd. Asif and others were promoted to the post of AE (civil) on ad hoc basis on the recommendations of the screening committee held on 2.7.2009 with subsequent approval of the competent authority. The screening committee made its assessment in respect of the said officers on the basis of vigilance clearance report received in their cases, wherein the cases were not shown as pending against their names. Further, on request of the establishment department, the vigilance department is stated to be ascertaining the facts with reference to pending cases against these officers from Economic Offences wing. As per the latest report issued by the vigilance department on 11.2.2010, the petitioner (it is not mentioned which of the two petitioners) is facing RDA No.1/209/07 (chargesheet issued) and police case No.2031/SIO(P)/Vig./07 (chargesheet has been filed in the court of law on 29.12.2008). Prior to DPC, promotions/assignments were being made on the basis of seniority position of Assistant engineers (Civil). As per records, the applicants and Shri R. P. Garg have been recommended by DPC for officiating promotion to the post of Executive Engineer (Civil) but they are working as Superintending Engineer, and they have completed more than two years. Without making a mention as regards the number and date thereof, the respondents have relied upon the following instructions, which appear to be part of instructions in support of the impugned order:
When disciplinary proceedings initiated against officer in a higher post on ad hoc basis:-
If the ad hoc appointment is against purely temporary vacancy or if he has held the ad hoc appointment for less than a year, he should be reverted. If the ad hoc appointment is purely for administrative reasons and if he has held the appointment for more than a year, he need not be reverted. Appropriate action in such cases will be taken depending on the outcome of the disciplinary proceedings.
7. The respondents have filed reply to the additional affidavit of the applicants as well, wherein it is inter alia pleaded that the respondents cannot keep the important and key post of Superintending Engineer vacant by revoking so many promotions made to the said post without any valid reason. It is further pleaded that the matter of promotion of the applicants was considered by the respondents in compliance with the orders dated 12.8.2010 of the Tribunal passed in OA No.3219/2009, wherein there was specific direction to the respondents to reconsider the promotion of the applicants herein by their names. The applicants, it is stated, are similarly situated to the officers mentioned in the additional affidavit. This reply is as regards the plea of discrimination raised by the applicants in the additional affidavit that so many Superintending Engineers similarly situate who are facing disciplinary or criminal proceedings wherein charges have been framed, and which charges came to be framed, be in the departmental or the criminal proceedings, within one year of their promotions, have been allowed to continue.
8. Shri A. K. Bhardwaj, learned counsel representing the applicants, would vehemently contend that the impugned order is wholly illegal as it primarily proceeds to recall the promotion of the applicants on the post of Superintending Engineer from retrospective date on the basis of OM dated 14.9.1992, which would be wholly inapplicable in the facts and circumstances of the present case, and further that this tribunal, in the first instance, clearly recorded that no adverse orders could be passed against the applicants and R. P. Garg who were not party respondents before it, and insofar as, some other observations made by this Tribunal are concerned, they came to be made on totally incorrect facts given by D. S. Dhanda, applicant in OA No.3219/2009, which were supported by the respondent-Corporation for reasons best known to it. Learned counsel representing the respondents, per contra, would defend the orders on the basis of OM dated 14.9.1992 and the observations made by this Tribunal in OA No.3219/2009.
9. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. Before we may advert to the core controversy on the issues as mentioned above, there would be need to clarify certain facts on which there may not be much controversy. It is established fact that the respondent Corporation, despite clear instructions for holding yearly DPCs as regards vacant positions, be it on the post of Executive Engineer or Superintending Engineer, has for years resorted to promotions either on the basis of look-after charge or on ad hoc basis. Constrained thus, under the circumstances as mentioned above, some employees of the Corporation seeking promotion on the post of Executive Engineer, filed a writ petition before the Honble High Court of Delhi, wherein directions came to be issued to convene DPCs for promotions on the post of Executive Engineer. The direction of the High Court was complied with and DPC was held in the year 2008, which, as per undisputed facts, was after eleven years from the DPC that might have been conveyed prior to 2008. It is also not in dispute that even though, promotions may have been made on the basis of look-after or ad hoc basis, but the same were against regular vacancies. Reverting to the facts of the present case, as regards promotion of the applicants, it is apparent that K. P. Singh, the first applicant, who initially joined as JE (Civil) in the year 1979, was promoted as AE (Civil) on current duty charge and subsequently promoted on regular basis in the year 1989. He was promoted as Executive Engineer on ad hoc basis in the year 2000. Insofar as Sushil Kumar, the second applicant, is concerned, he joined as AE (Civil) as direct recruit in the year 1990 and thereafter promoted as Executive Engineer in 1997 on ad hoc basis. Insofar as, the first applicant is concerned, he was promoted as Superintending Engineer on ad hoc basis vide order dated 12.4.2007 along with R. K. Ailawadi, V. R. Bansal, Rajesh Taneja, ashok Mittal, V. K. Malhotra, Ramesh Kumar and Maneesh Rastogi. The order of his promotion was withdrawn the very next day, i.e., 13.4.2007, but on representation made by him he was again promoted on ad hoc basis on 13.7.2007. The second applicant was also given ad hoc promotion on the post of Superintending Engineer (Civil) on 13.7.2007. The first applicant was charge-sheeted on 20.7.2007, whereas the second applicant was charge-sheeted on 7.9.2007. Even though, a period of more than three years in each case has gone by, the outcome of the enquiries is not known. The case of the applicants, as mentioned above, is, however, that during the course of enquiry, nothing adverse has come against them. The DPC for regular promotion on the post of Executive Engineer was held in July-August, 2008. Even though, when the applicants were initially promoted as Executive engineers, the same may be on ad hoc basis but it was not mentioned that the promotion would be on officiating basis. It appears to have been converted into officiating basis after the DPC met to consider regular promotions on the post of Executive Engineers in July-August, 2008. It is the specific case of the respondents, so mentioned in para 4.(ii) of the counter reply that the DPC had recommended promotion of the applicants as on officiating basis, which was notified vide order dated 8.9.2008. The allegations subject matter of charge admittedly pertained to the period when the applicants were holding the post of Executive Engineers. What thus transpires is that as regards the allegations pertaining to the period when the applicants were Executive Engineers, they were charge-sheeted even after when they had been promoted as Superintending Engineers on ad hoc basis. Be it the promotion on the post of Executive Engineer or Superintending Engineer, the promotion was made against regular vacancies that were available.
10. We may also advert to the facts as pleaded in OA No.3219/2009 filed by D. S. Dhanda. In the very opening of the judgment, we have mentioned that the primary and in fact the only grievance of the applicant appeared to be that even though, he was regularly appointed Executive Engineer pursuant to his case being cleared by the DPC, such Executive Engineers who were working on the said post only on look-after basis, had been further promoted or asked to work on the higher post of Superintending Engineer on look-after basis. It was urged on that basis that the procedure of avoiding regular promotion and making an employee to work on still higher post on look-after basis, when he might be working on the lower post also on look-after basis, would be wholly illegal and against all norms of promotion, even on look-after basis, on a higher post. It is only in consideration of the submissions of the learned counsel as referred to above that the limited facts of the case were mentioned. D. S. Dhanda had joined the respondent Corporation as AE (Civil) in the year 1990. He became eligible for promotion on the post of EE (Civil) in 1995, after rendering five years regular service as AE (Civil). He was assigned look-after charge of the post of EE (Civil) on 14.10.2002, on which post he was given ad hoc promotion on 30.4.2004, and regular promotion on 8.9.2008, after DPC was held. It was his case that along with him, number of other officers were also assigned look-after charge of the post of EE (Civil), who were also promoted on ad hoc basis, and that it was only because of the fact that the respondents were not convening DPC, that look-after charges of the said post were given to the applicant and others. In 2008, however, DPC for the post of EE (civil) was convened after about eleven years, and it was in consequence of the order passed by the High Court that the DPC was convened and he was regularly promoted. For the post of SE (Civil) as well, it was the case of the applicant that no DPC had been convened since 1997, and, therefore, number of persons were being assigned look-after charge. It was his case that number of persons who were initially assigned look-after charge of the post of EE (Civil), had been further assigned the look-after charge and/or ad hoc promotion against the post of SE (civil), while on the other hand, the applicant who was regular EE (Civil) had been ignored. Eversince 1997, the respondents were resorting to the procedure of making appointments by assigning look-after charge, resulting into junior officers writing the ACRs of seniors. Shri Dhanda gave specific instance of the applicants and R. P. Garg who had been assigned charge of the higher post on look-after/ad hoc basis, even though they were not regular Executive Engineers. He also gave illustration of S/Shri Arunesh Kumar Upadhyaya, Rajendra Prasad and R. K. Ailawadi who had also been assigned look-after charge/ad hoc promotion on the higher post of SE (Civil) irrespective of the fact that cases were pending against the said officials. It was thus stressed during the course of arguments that there was no justification whatsoever to assign the charge of the higher post of Superintending Engineer to those who were holding look-after charge of the feeder post, i.e., Executive Engineer. The respondent Corporation in the reply filed in the OA aforesaid, while referring to the DPC that met in July-August, 2008 pursuant to orders passed by the High Court, admitted that the applicant had been regularly promoted as Executive Engineer. Insofar as the applicants herein and R. P. Garg are concerned, it was stated that they were promoted to the post of SE (Civil) during the time DPC for the post of EE (Civil) was not held, and that the applicant in the said OA and these officers were on the same platform. It was also pleaded that at the time of DPC these officers (applicants and R. P. Garg) were facing disciplinary cases and charge-sheets were issued against them, and that the DPC assessed them and their assessment had been kept in sealed cover, and that after exoneration in disciplinary cases, the sealed cover would be opened and officiating promotion to the post of EE (Civil) would be given to them. Insofar as S/Shri Arunesh Kumar Upadhyaya, Rajendra Prasad and R. K. Ailawadi are concerned, it was pleaded that they were regular EE (civil) and as per recommendations of DPC, officiating promotion on the post of EE (Civil) and subsequently ad hoc promotion on the post of SE (Civil) had been granted to them. Insofar as the applicant in the said OA is concerned, it was the case of the respondent Corporation that he was not being considered as senior regular Executive Engineers were to be promoted to the post of Superintending Engineer, and further as per latest report issued by the vigilance department vide letter dated 11.2.2010, he was facing an RDA case (charge-sheet issued) and a police case (charge-sheet had been filed in court on 29.12.2008). In para 5 of the judgment, we clearly mentioned that the officers named by the applicant had not been arrayed as party respondent and, therefore, it would not be possible to go into the issue of seniority. We also mentioned that there was no prayer either to set aside the orders giving look-after charge of the post of SE (civil) to the persons named by the applicant. The only prayer seriously made was that there cannot be any ad hoc promotion or look-after assignment of a higher post to a person who may be holding the feeder post also on look-after/ad hoc basis. In that regard we observed that insofar as, s/Shri Arunesh Kumar Upadhyaya, Rajendra Prasad and R. K. Ailawadi are concerned, they were regular EE (civil), and, therefore, the plea raised by the learned counsel for the applicant that these officers could not be given the look-after charge of the post of Superintending Engineer would not be correct, as they were holding regular posts of Executive Engineers when they were assigned the charge of higher post on look-after basis. However, insofar as the applicants and Shri R. P. Garg are concerned, we observed that they were admittedly working on the post of Superintending Engineer on look-after basis, and the only reason for giving them look-after charge of the higher post was that at the time when DPC was held they were facing disciplinary cases and charge-sheets had been issued against them, and that the DPC assessed them and their assessment was kept in sealed cover. We were prima facie of the view that unless in the case of the applicants and R. P. Garg, the disciplinary proceedings were to culminate into their exoneration and sealed covers were opened, they could not be given even the look-after charge, particularly of the higher post of Superintending Engineer, and that it could be done only if they were exonerated in the enquiries pending against them and the DPC had assessed them fit for promotion on the post of executive Engineer. We also observed that Assuming that the look-after charge of the post of Superintending Engineer was assigned to these officers at the time when even DPC for promotion to the post of Executive Engineer had not been convened, but once their cases were put in sealed cover even for their promotion to the post of Executive Engineer, there was no justification to continue for these officers to hold the look-after charge of the higher post, i.e., Superintending Engineer. We, however, mentioned that since these officers had not been arrayed as party respondents, it would not be possible to set aside the orders assigning to them the look-after charge of the post of Superintending Engineer, nor it may be possible to give any final opinion on the issue. The concluding para of the judgment reads as follows:
6. In totality of the facts and circumstances of this case, some directions, however, still need to be issued. It is too well settled that DPC for the existing vacancies in the higher echelons has to meet every year. Year-wise vacancies have to be declared and promotions made accordingly. The respondents cannot sleep over the matter. They have to hold DPC for promotion on the post of Superintending Engineers (Civil). It appears to this Tribunal that since the respondents had not convened DPC for promotion on the post of Executive Engineer, the necessary directions in that regard came to be issued by the High Court of Delhi. We thus direct the respondents to convene a DPC to consider promotion on the post of Superintending Engineer (Civil) as expeditiously as possible and definitely within a period of there months from today. The respondents would re-consider giving look-after assignment of the post of Superintending Engineer (Civil) to S/Shri R. P. Garg, K. P. Singh and Sushil Kumar. If the enquiries against them have been concluded, the sealed cover would be opened and the respondents will find out as to whether they have been assessed as fit, and then pass orders accordingly. Till such time the DPC may meet, the respondents would give the look-after charge strictly as per seniority and as per norms of promotion. It would be, however, open for the respondents not to given even look-after charge to persons who may be facing disciplinary proceedings or criminal trials where charges may have been framed. This exercise must be taken and completed by the respondents within six weeks from today. If in exercise as ordained above, the respondents may find that there is no justification for continuing the officers named above on look-after assignment on the post of Superintending Engineer, appropriate orders in that regard shall be passed. Our judgment would make it absolutely clear that the applicants were not party respondents and we had expressed no final opinion in the matter. It may be a case of prima facie opinion, but as clearly so stated, it was not final. The respondents were to apply their mind as per the instant instructions and the law applicable on the faces of the case.
11. The pleadings of the parties clearly reveal that promotion of the applicants, be it on the post of Executive Engineer or Superintending Engineer, was against regular vacancies. It was certainly not a case of promotion on look-after basis. On each occasion when the applicants were promoted as Executive Engineer or Superintending Engineer, they were thus given ad hoc promotion against clear available vacancies. At the time when the applicants were promoted as Executive Engineers, there was no charge-sheet pending against them. They were not facing any departmental enquiry. So much so, even at the time when they came to be further promoted on the post of Superintending Engineer, once again on ad hoc basis, no charge-sheet had been framed against them. It is true that insofar as the allegations subject matter of enquiry are concerned, the same pertained to the period when they were Executive Engineers and the DPC that had met in July-August, 2008 recommended their promotion as on officiating basis. Enquiries against the applicants are still pending. There is absolutely no inkling in the reply that the same would culminate in near future. On the admitted facts as mentioned above, the only question that arises is as to whether as per instructions referred to by the respondents in the impugned order, the order of ad hoc promotion of the applicants on the post of Superintending Engineer could be withdrawn and that too from a date when chargesheet came to be issued. As regards retrospective withdrawal of the order of promotion, it could not be disputed during the course of the arguments that the same cannot possibly sustain. The applicants have already worked for more than three years on the post of Superintending Engineer and if at all they could be reverted to the post of Executive Engineer, the same could be from prospective date, i.e., the date when the order was passed. We have carefully gone through the DOP&T OM dated 14.9.1992 relied upon by the respondents in the impugned order in withdrawing the order of promotion of the applicants. The same is not even remotely applicable to the facts of the case in hand. The subject of the OM aforesaid is Promotion of Government servants against whom disciplinary/ court proceedings are pending or whose conduct is under investigation Procedure and guidelines to be followed. It appears to have come into effect after the judgment of the Honble Supreme Court in Union of India v K. V. Jankiraman [AIR 1991 SC 1210]. It gives in detail the procedure to be followed as regards promotion of such employees who may be under suspension or against whom charge-sheet may have been issued in disciplinary proceedings and the same may be pending, and those against whom prosecution for criminal charge may be pending. In brief, the sealed cover procedure is to be adopted in cases of such employees. There is not a word mentioned in the said instructions as to what would be the position if despite pendency of some disciplinary proceedings an employee is promoted, even though on ad hoc basis. It may not be appropriate to reproduce the contents of the OM dated 14.9.1992, as nothing mentioned therein is relevant as regards the fact situation obtainable in the present case. We may, however, mention that we specifically asked the learned counsel to point out from the entire OM where there may be even a word mentioned as regards reversion of an employee who may have been promoted on ad hoc basis, and against whom charge may have been framed, but the learned counsel is not able to point to anything that may be relevant in that regard in the OM foresaid. Before we may part with the instructions dated 14.9.1992, we may reiterate that in the present case, there was no charge-sheet pending against the applicants either at the time when they were initially promoted as Executive Engineers or when they were promoted as Superintending Engineers. It is no doubt true that after DPC was held and they were to be considered for regular promotion, the chargesheets were pending against them and, therefore, it was notified that their promotion would be on officiating basis. Instructions dated 14.9.1992, we have already held above, do not deal with reversions. We are further of the view that the instructions contained in the said OM may not be applicable even as regards promotion of the applicants, as surely, these instructions do not deal with a situation where the DPC may have been held later than the promotion, and by which time, an employee may have been charge-sheeted.
12. We may mention that when this matter came up for motion hearing on 25.11.2010, we had required the learned counsel representing the applicant to clarify the situation, as prima facie we were of the view that there were some instructions in existence which would deal with a situation where charge-sheet may have been issued against an employee within one year of his ad hoc promotion, and he could be, in that situation reverted. The learned counsel clarified the position by bringing on record instructions dated 24.12.1986. The same indeed deal with a Government servant who may be appointed to a higher post on ad hoc basis and should be allowed to continue in ad hoc appointment when disciplinary proceeding is initiated against him. The said instructions are applicable to appointments that are made purely on ad hoc basis against short term or leave vacancies or if the government servant appointed to officiate until further orders in any other circumstances has held the appointment for a period of less than one year. Only such Government servants can be reverted to the post held by them substantively or on regular basis, when disciplinary proceedings are initiated against them. Reversion may also be possible as per instructions aforesaid where appointment was required to be made on ad hoc basis purely for administrative reasons and the Government servant has held the appointment for more than one year. The instructions aforesaid, even as regards such appointments as mentioned above may not be applicable, if ad hoc promotion of an employee is continued for more than one year. Clause (ii) of the instructions aforesaid, states that where an appointment has been made on ad hoc basis purely for administrative reasons (other than against a short-term vacancy or a leave vacancy) and the government servant has held the appointment for more than one year, if any disciplinary proceeding is initiated against the Government servant, he need not be reverted to the post held by him only on the ground that disciplinary proceeding has been initiated against him. Appropriate action in such cases is to be taken depending on the outcome of the disciplinary case. The respondents have made mention of some instructions without giving the reference and context of the same. There is no number of the OM nor there is any date. The same have already been reproduced hereinabove. Even if one has to go by the instructions relied upon by the respondents, the same may also not be applicable, as present is not a case of ad hoc appointment against purely temporary vacancies, nor is it a case where the applicants have held the ad hoc appointment for less than one year. It appears to us that the respondents have picked-up the extracted portion from the instructions dated 24.12.1986, which is DOP&T OM No.11012/9/86-Est.(A), and made a mention of the same as thought over by them. We may reproduce in verbatim instructions (i) and (ii) contained in the said OM, which may be relevant. The same read, thus:
(i) Where an appointment has been made purely on ad hoc basis against a short-term vacancy or a leave vacancy or if the Government servant appointed to officiate until further orders in any other circumstances has held the appointment for a period less than one year, the Government servant shall be reverted to the post held by him substantively or on a regular basis, when a disciplinary proceeding is initiated against him.
(ii) Where the appointment was required to be made on ad hoc basis purely for administrative reasons (other than against a short-term vacancy or a leave vacancy) and the government servant has held the appointment for more than one year, if any disciplinary proceeding is initiated against the Government servant, he need not be reverted to the post held by him only on the ground that disciplinary proceeding has been initiated against him.
13. In view of the discussion made above, this Original Application has to be allowed. Before we may, however, part with this order, we would like to mention that it is the specific case of the applicants that there are number of Superintending Engineers holding such post on ad hoc basis and against whom charge-sheets have been issued in departmental proceedings or criminal cases where charges have been framed are pending, and such proceedings came to be initiated against them within a year of their promotion, but no action has been taken against them. We are distressed to note that even though, no dispute on facts has been raised, it has been stated that it may not be possible to revert so many people as that may create administrative problems. Even though, if the respondents are illegally carrying on with the promotions of others, it may not become a ground to set aside the reversion of the applicants as negative discrimination cannot be pleaded, but we cannot refrain from observing that if the applicants are to be treated by reverting them, the only reason that so many people have to be reverted, may not be a ground so as not to revert them. We may also mention that even though clear directions came to be given by us in OA No.3219/2009 that regular DPC should be held within three months, nothing in that regard has been done as yet. We may also mention that the status of the enquiries being conducted against the applicants even after more than three years, is not known and the respondents have not even thought it appropriate to mention that enquiries pending against the applicants would c0me to an end in near future.
14. For the reasons as mentioned above, we quash and set aside the order dated 22.11.2010. The applicants will be entitled to all consequential benefits that may accrue to them in consequence of setting aside the impugned order. There shall, however, no order as to costs.
( Dr. Ramesh Chandra Panda ) ( V. K. Bali )
Member (A) Chairman
/as/