Central Administrative Tribunal - Delhi
Purnima Gupta vs Directorate Of Prosecution on 4 October, 2024
1
Item No. 53(C-3)
O.A. No.2168/2024
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.2168/2024
Order reserved on : 03.09.2024
Order pronounced on : 04.10.2024
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
Purnima Gupta,
W/o Mr. Mahesh Gupta,
R/o BM-154, West Shalimar Bagh,
Delhi-110 088.
Email: [email protected]
...Applicant
(By Advocate : Shri Viraj Datar, Senior Advocate
assisted by Shri Nitish Chaudhary)
VERSUS
1. Directorate of Prosecution,
Through the Director of Prosecution,
Govt. Of NCT of Delhi,
First Floor, Tis Hazari Courts Complex,
Delhi-110054
E-mail. ID : [email protected]
2. Govt. Of NCT of Delhi,
Through the Principal Secretary (Home),
Home Department,
5th Level, C-Wing, Delhi Secretariat,
New Delhi-110 002
E-mail ID : [email protected]
3. Govt. Of NCT of Delhi
Through the Principal Secretary (Home),
Home Department,
5th Level, C-Wing, Delhi Secretariat,
New Delhi-110 002
E-mail ID [email protected]
...Respondents
(By Advocate : Shri Amit Anand)
2
Item No. 53(C-3)
O.A. No.2168/2024
ORDER
By Hon'ble Mrs. Pratima K. Gupta, Member (J) :-
The brief facts that led to filing of the instant OA are that the applicant who is serving as Chief Prosecutor on an ad- hoc basis since 20.03.2017 was due for promotion to the post of Chief Prosecutor on regular basis in the year 2017 itself, as two regular vacancies for the post of Chief Prosecutor arose on 31.05.2017. The applicant was eligible and entitled to be considered for promotion against one of these vacancies on regular basis, from that date or thereafter. However, the applicant was only confirmed to the said post on 29.05.2023, after a delay of 5 years and 2 months. The next promotional post of Chief Prosecutor is Director, Prosecution. The applicant would be entitled to be considered for promotion to the post of Director, Prosecution after completing 5 years of regular service as Chief Prosecutor. The learned senior counsel explains that the applicant's service from 20.03.2017 to 29.05.2023, i.e. a period of 5 years and 2 months, has not been counted towards eligibility for the post of Director of Prosecution, 3 Item No. 53(C-3) O.A. No.2168/2024 thereby rendering the applicant ineligible for the said promotion.
2.1 For the redressal of her grievance, the applicant submitted a representation on 27.07.2023, which has been placed on record. The same was rejected by the respondents through the order dated 09.04.2024. Accordingly, the applicant has filed this OA seeking the following reliefs:-
"a) Assign seniority of the Applicant, while counting the period of ad hoc service from 20.03.2017 to 29.05.2023 at the post of Chief Prosecutor, towards regular service of the Applicant for the purpose of promotion to the next post of Director, Prosecution;
b) Direct the Respondent to grant consequential benefits with effect from the date of accrual of relevant seniority;
c) Pass any other or further order(s) as this Hon'ble Tribunal may deem fit and proper."
2.2 The learned senior counsel appearing for the applicant, in support of the applicant's cause, submitted that no explanation, whatsoever has been provided by the respondents for not convening the Departmental Promotion Committee (DPC) between 31.05.2017 to 29.05.2023. He contends that due to the respondents' failure to hold the DPC during this 4 Item No. 53(C-3) O.A. No.2168/2024 period, the applicant has been deprived of the opportunity to be promoted on regular basis to the post of Chief Prosecutor. This, in turn, has rendered her ineligible for consideration for promotion to the post of Director of Prosecution. The learned senior counsel drew attention to the Order dated 09.04.2024 and argued that the respondents have incorrectly relied upon the Department of Personnel and Training (DoPT) Office Memorandum (OM) dated 03.04.2013, as reflected in the said order. He submits that the Hon'ble High Court of Delhi in W.P. No. 4396/2024 titled Municipal Corporation of Delhi Vs. Rakesh Gupta dated 24.04.2024, held that while the period of ad-hoc service is generally not counted for eligibility for the next promotion, however, if the respondents have failed to convene the DPC timely, this period should be counted towards eligibility for the next promotion. Paragraphs 5, 6, and 8 of the said judgment are reproduced as under:
"5. Having considered the submissions of the learned counsel for the petitioner and perused the record, we find that the learned Tribunal has allowed the OA by relying on the decision dated 11.12.2018 of this Court in K.C. Meena v. P.K. Gupta In W.P. (C) 5356/2014. In the said case this Court, while dealing with the claims of Superintending Engineers who were 5 Item No. 53(C-3) O.A. No.2168/2024 Initially granted ad hoc promotion on account of their regular promotion being delayed due to non-convening of DPC in time, directed that ad hoc service rendered by them be included for considering their eligibility for promotion to the post of Chief Engineer. Learned counsel for the petitioner, however, seeks to urge that the aforementioned decision of this Court pertains solely to the question of Inter se seniority and does not deal with the question of counting ad hoc service towards qualifying period for promotion. We may therefore refer to the relevant extracts of this decision of the Coordinate Bench, which reads as under:-
"In our view, the stand taken by the respondent is neither fair nor legally sustainable. Those officers who were eligible to be promoted as Superintending Engineers, but were not so promoted on regular basis on account of failure of the respondents to hold the DPC, and were asked to officiate in the grade of Superintending Engineers, cannot be denied their seniority in the said grade from the dates that they have been officiating, or the dates when the vacancy arose, whichever is later.
Our attention has been drawn to two orders passed by this court. The first order was passed in CWP No.3091/1997 on 24.05.2002. A learned Single Judge of this Court (Sanjay Kishal Kaul, J., as his Lordship then was) directed as follows:
"In view of the aforesaid a direction is issued that service rendered by the petitioners on current date charge will be counted towards their service for determining the eligibility for promotion to the next higher post if the petitioners were eligible, a vacancy existed and the DPC was 6 Item No. 53(C-3) O.A. No.2168/2024 not held within a period of one year from the vacancy arising.
The respondents shall do the needful and intimate it to the petitioners within a period of 6 weeks from today.
Writ petition is disposed of in the aforesaid terms".
The second order was passed by this court in WP(C) No.5985/2002 on 28.04.2004 by placing reliance on the order passed in WP(C) No.3091/1997. This court directed the MCD that service rendered by the petitioners in that case on current duty charge will be counted towards their service for determining their eligibility for promotion to the next higher post.
Pertinently, these orders have been implemented by the Municipal Corporation as is evident from the communication dated 23.07.2012 issued by the Additional Commissioner (Estt.). Taking note of, and placing reliance on the judgment in CWP No.3091/1997 dated 24.05.2002 and the order in WPC No.1548/1999 dated 07.05.2004, the respondents, inter alia, observed:
"During the meeting of the Screening Committee, it was observed that in some Court cases, such as CW 3091/1997 dated 24.05.2002 in the case of P.S. Dahiya & Ors and also in order dated 7.5.2004 in W.P.(C.) No.1548/99, the Hon'ble High Court of Delhi had directed the MCD that service rendered by the petitioners on Current Duty Charge be counted towards their service for determining their eligibility for promotion to the next higher grade.
Taking into account the position brought out above, particularly provisions contained in Circular No.F3/2/72/CED(A)/ 167 dated 14.12.1973, the directions of the judiciary 7 Item No. 53(C-3) O.A. No.2168/2024 in the cited cases and DOP&T's instructions regarding consideration of promotion of the senior along with his junior on fulfilling the prescribed conditions, the Committee is of the view that the service rendered on Current Duty Charge basis needs to be counted for the purpose of reckoning of service in the post of SE(C) for promotion to the post of CE(C) on Current Duty Charge basis".
(emphasis supplied) Thus, it does not lie in the mouth of the respondents to contend that the service rendered by the petitioners as Superintending Engineers on current duty charge basis or adhoc basis would not count for purpose of determining their eligibility for consideration for regular promotion to the post of Chief Engineer. We, accordingly, direct the respondents to determine the seniority of the petitioners in the grade of Superintending Engineers from the date that they have been working in the said grade either on current duty charge / officiating basis, or from the date when the regular vacancy arose, whichever is later.
(emphasis supplied) The respondents shall draw up eligibility and seniority lists and send the requisition to the UPSC for holding DPCs for the posts of Chief Engineer (Civil). The same principle would be followed for holding the DPC for the post of Engineer-in-Chief. Compliance shall be made within four weeks."
6. From a bare perusal of the aforesaid extract of the decision in K.C. Meena (supra), we find that in the aforesaid case, the Court after noticing the fact that the department was at fault for not conducting 8 Item No. 53(C-3) O.A. No.2168/2024 DPC for years together had directed that ad hoc service rendered by the employee concerned in the post of Superintending Engineer to which he was subsequently promoted on regular basis, be included for the purpose of considering his eligibility for the post of Chief Engineer. We are, therefore, unable to agree with the learned counsel for the petitioner that the said case did not pertain to the question of counting ad hoc service towards regular service as an eligibility criteria for further promotion.
xxx xxx xxx
8. in the light of the aforesaid, even though we agree with the learned counsel for the petitioner, that generally ad hoc service is not to be included towards regular service, we are of the view that in a case like the present, where despite his eligibility and availability of vacancy, the respondent was considered only for ad hoc promotion as an Assistant Director on 29.08.2007, it will be highly unfair to deprive him of the benefit of the said ad hoc service specially when his ad hoc appointment as an Assistant Director was followed by regular appointment. In our considered opinion, when despite the respondent having rendered more than ten years of service as a Publicity Assistant as against the requirement of three years service for promotion to the post of Assistant Director, the petitioner granted him only ad hoc promotion as Assistant Director on 29.08.2007, no ground is made out to interfere with the directions issued by the learned Tribunal."
2.3 He drew strength from the decision of the Hon'ble High Court in W.P. No. 2059/2012, titled Sunil Kumar Mehra Vs. MCD & Ors. decided on 9 Item No. 53(C-3) O.A. No.2168/2024 08.05.2013, wherein the Hon'ble High Court has defined the concept of malice. He submitted that in the present case, non-convening of the DPC, despite the clear vacancies, amounts to malice. He argued that this act, being arbitrary and unjustified, should be construed as malice in law. Paras 24 and 29 of the said judgment are reproduced herein below:-
"24. Malice is of two kinds one, Malice in Fact' and two, Malice in Law Malice in fact is III-will or spite towards a party and any indirect or improper motive in taking an action. 'Legal Malice' or 'Malice in Law' means 'something done without lawful excuse'. In other words, it is an act wrongfully done without reasonable or probable cause, and not necessarily an act done from ill-will or spite'. (See the decision of the Supreme Court reported as S.R. Venkataraman vs Union of India AIR 1979 SC 49) .
xxx xxx xx
29. As held in K.L. Taneja' case (supra), retrospective promotion can be made in a case where the DPC was not held at the required time and such delay is attributable to 'malice'. Since in the instant case, we have held that the delay of 9 years caused by MCD in convening DPC in question is attributable to 'malice in law', the petitioner is entitled to be promoted to the post of Additional Town Planner from a retrospective date, which in the present case would be January 07, 1998 i.e. the date when the petitioner was promoted to the post of Additional Town Planner on ad- hoc basis."10
Item No. 53(C-3) O.A. No.2168/2024 2.4 In support of his contentions, learned counsel for the applicant relied upon the following judgments:-
(i) Rajan Bhagat Vs. Union of India & Anr.
WP(C) No.3626/2014.
(ii) Union of India & Anr. Vs. Harish Chander Bhatia & Ors. (1995) 2 SCC 48.
(iii) L. Chandrakishore Singh Vs. State of Manipur (1999) 8 SCC 287.
(iv) P.N. Premachandran Vs. State of Kerala 7 Ors. (2004) 1 SCC 245.
3.1 Pursuant to notice, the respondents have filed their counter reply. Learned counsel for the respondents vehemently opposed the OA and drew attention to the Recruitment Rules placed at page 34 of the OA, for the post of Director of Prosecution. Referring to Column 11, he submitted that the eligibility criterion for the post of Chief Prosecutor is five years of regular service in the prescribed grade. He emphasized on the term "regular service" and submitted that this term cannot be interpreted in any other manner, meaning that only an employee with five years of regular service is entitled to be considered 11 Item No. 53(C-3) O.A. No.2168/2024 for promotion to the post of Director (Prosecution). He submitted that since the applicant has not challenged the Recruitment Rules and the respondents have acted strictly in accordance with the RRs, the adhoc promotion granted to the applicant cannot replace the requirement of regular service. Additionally, he submitted that if the adhoc service of the applicant, as contended by the learned counsel for the applicant, is counted toward eligibility for the post of Director (Prosecution), there may be several similarly situated persons who could be affected and who have not been made parties to this OA.
3.2 He submitted that the issue in question has already been considered and decided by the Hon'ble High Court of Delhi in W.P. No. 8102/2012, titled Union of India & Anr. Vs. K.L. Taneja and Ors. decided on 12.04.2013. He argued that judicial review can only be entertained, where malafide is established in delay in convening the DPC. In the absence of such malafide, no exception can be made regarding the delay in convening the DPC. He drew attention to the decision of the Hon'ble Apex Court in Civil Appeal No.10788/2016 titled Rashi Mani Mishra & Ors. Vs. State of Uttar Pradeh and Ors. decided on 12 Item No. 53(C-3) O.A. No.2168/2024 28.07.2021. Para 3.2 (vi) of the same is reproduced as under:-
"3.2 vi) that in many earlier decisions, this Court including the three Judge Benches have consistently taken the view that period of ad hoc service cannot be reckoned for the purposes of seniority, where initial appointment is only ad hoc and not according to the rules. Reliance is placed upon the decisions of this Court in the cases of Debabrata Dash v. Jatindra Pradsad Das, reported in (2013) 3 SCC 658 (three Judge Bench), P.P.C. Rawani (Dr.) and others v. Union of India, reported in (2008) 15 SCC 332 (three Judge Bench), R.K. Mobisana Singh v. Kh. Temba Singh, reported in (2008) 1 SCC 747; Santosh Kumar and others (supra); Union of India v. Satish Chandra Mathur, reported in (2001) 10 SCC 185; Keshav Chandra Joshi v. Union of India, reported in 1992 Supp. (1) SCC 272 (three Judge Bench); and P.D. Aggarwal v. State of U.P., reported in (1987) 3 SCC 622. It is submitted that none of the aforesaid decisions have been considered by this Court in the case of Narendra Kumar Tripathi (supra) and therefore also the decision in the said case is per incuriam;"
3.3 Learned counsel for the respondents further submitted that the delay in convening the DPC was due to administrative reasons, including the impact of COVID-19, particularly for the two years during which the DPC could not be held. He stated that the appointment of the applicant was not made in accordance with the Recruitment Rules and the same was purely on adhoc basis.
13Item No. 53(C-3) O.A. No.2168/2024 3.4 In support of his contentions, learned counsel for respondents has relied upon following judgments :-
(i) Union of India and Anr. Vs. K.L. Taneja and Anr. WP(C) No.8102/2012.
(ii) Malook Singh and Ors. Vs. State of Punjab and Ors. Civil Appeal Nos.6026-6028 of 2021.
4. In rejoinder, learned counsel for the applicant confirmed that the applicant is the senior-most employee and that there are no other individuals who would have been affected, making it unnecessary to be impleaded in the present OA.
5. We have heard the learned counsel for the parties and gone through the pleadings available on record.
6. To summarise, the applicant who is serving as Chief Prosecutor on ad hoc basis from 20.03.2017 has been confirmed as such on 29.05.2023. In terms of the Recruitment Rules, after five years of regular service as Chief Prosecutor, one is entitled to be considered for promotion to the post of Director Prosecution. The issue before us is whether the service of the applicant rendered on adhoc basis as 14 Item No. 53(C-3) O.A. No.2168/2024 Chief Prosecutor could be reckoned towards eligibility for the post of Director Prosecution.
7. The matter was reserved for orders on 03.09.2024 and subsequently it was listed under the head 'For Being Spoken To' on 17.09.2024, when the records of the DPC proceedings were sought for and it was relisted for 24.09.2024. On 24.09.2024, copy of the same was produced by the learned counsel for the applicant and the respondents have placed before us the original record as well as copy of the said DPC proceedings. It is not in dispute that the copies provided by both sides are same.
8. It will be worthwhile to produce the order of appointment extending the applicant adhoc promotion. The same reads as under :-
"ORDER On the recommendation of the Departmental Promotion Committee held on 11.01.2017, the Hon'ble Lt. Governor of National Capital Territory of Delhi is pleased to promote the following Additional Public Prosecutors to the posts of Chief Prosecutor on regular basis in the revised pay scale of Rs.15600-38100 in the Pay Band-3 with Grade Pay Rs.8600/- in the Directorate of Prosecution with immediate effect :
Sr. No. Name of the officer DOB
1. Sh. V. Rao Gudo 18/07/1962
15
Item No. 53(C-3)
O.A. No.2168/2024
2. Smt. Alka Goel 23/03/1964
3. Sh. Rama Kant Pandey 01/10/1964
4. Sh. Ahmad Khan 10/07/1959
5. Sh. Anil Kumar Gupta 07/12/1963 In addition to the above, Ms. Purnima Gupta, Addl. Public Prosecutor is promoted to the post of Chief Prosecutor on ad-hoc basis in the revised pay scale of Rs.15500-39100 in the Pay Band-3 with Grade Pay Rs.6600/- with immediate effect."
9.1 The order dated 20.03.2017, extending the applicant adhoc promotion to the post of Chief Prosecutor, indicates that the DPC was held for considering the case of the applicant for promotion to the post of Chief Prosecutor.
9.2 The DPC record placed by the learned counsel for the parties confirmed that the DPC was held on 11.01.2017 to consider the promotion to the post of Chief Prosecutor amongst Additional Public Prosecutors of Directorate of Prosecution, GNCT of Delhi. There were five clear vacancies of Chief Prosecutor which occurred due to retirement of officers in terms of the year-wise vacancies. The applicant was considered along with other eligible Additional Public Prosecutors and her name was placed at Sl No.6 in the list of recommended candidates. However, as the DPC was with respect to 16 Item No. 53(C-3) O.A. No.2168/2024 five vacancies only, therefore, she was extended ad- hoc promotion from 20.03.2017. Thereafter, the applicant was extended regular promotion on 29.05.2023 in pursuance of the recommendations of the UPSC.
9.3 In terms of the Recruitment Rules placed at page 37 for the post of Director (Prosecution), in column 11, five years regular service as Chief Prosecutor is mandatory to be eligible for promotion to the post of Director (Prosecution). For the sake of better clarity, the relevant portion of the RRs at page 37 is reproduced hereinbelow :-
In case of recruitment If a departmental Circumstances in by Prom/Dep./abs. promotion which UPSC to be grades from which committee exists, consulted in making prom/dep./abs to be what is its recuitment made composition 11 12 13 Promotion : Promotion Consultation with UPSC is not necessary.
Chief Prosecutor in 1. CHAIRMAN/ Level 12 (Rs.78800- MEMBER UPSC 209200) in the pay matrix with Five years 2.CHIEF Note: NA regular service in the SECRETARY, grade. GNCTD Note:- Where juniors 3.SECRETARY who have completed CONCERNED, their qualifying/ GNCTD eligibility service are being considered for 4.HEAD OF promotion, their DEPARTMENT seniors would also be CONCERNED considered provided they are not short of the requisite UNLESS THE qualifying/ eligibility EX-OFFICIO service by more than SECRETARY IN half of such qualifying/ THE GNCTD eligibility service or two years, whichever is Confirmation of 17 Item No. 53(C-3) O.A. No.2168/2024 less, and have DR successfully completed their probation period 1. Not Applicable for promotion to the next higher grade 2.Not Applicable along with their juniors who have already completed such 3.Not Applicable qualifying/eligibility service. 4.Not Applicable 9.4. From the facts borne out of record, it is clear that the applicant's name was recommended by the regular DPC. Her name was at Sl. No.6 of the recommended candidates. Since there were five vacancies, the applicant was extended ad hoc promotion to the post of Chief Prosecutor. Clearly, there were no substantive vacancies against which the applicant could have been extended the promotion.
From the present facts, it is clear that the applicant was considered by DPC, however, he could not be extended regular promotion for want of vacancies and she was extended ad hoc promotion. The record further confirmed that there were two vacancies available in the year 2017 itself due to retirement of two persons, however, the respondents did not convene a DPC to promote the applicant on regular basis between the years 2017 to 2023. No justified reason whatsoever has been given by the respondents for not convening the DPC from 31.05.2017 to 18 Item No. 53(C-3) O.A. No.2168/2024 29.05.2023, except mentioning administrative reasons and COVID-19 which cannot be accepted. Had the respondents convened a DPC in time confirming the applicant on regular basis on the post of Chief Prosecutor, the applicant could have been eligible to be considered for promotion to the post of Director (Prosecution).
12. Both the learned counsel for the parties, have relied upon various judgments of Hon'ble High Court as well as the Hon'ble Apex Court as reproduced hereinabove, the latest being Union of India Vs. R.K. Mittal in WP(C) No.1609/2004 before the Hon'ble High Court of Delhi decided on 19.03.2024, which has been relied upon by the applicant. In the said case, Hon'ble High Court held that long period of service beyond six months in accordance with Rule 25 of DANIPS Rule could not be ignored while reckoning the seniority of an employee. The Hon'ble High Court while deciding the issue has considered the decision of the Hon'ble Apex Court in Union of India and Anr. Vs. Harish Chander Bhatia And Ors. 1995 (2) SCC
48. The judgments relied upon by the learned counsel for respondents do not come to the rescue of the 19 Item No. 53(C-3) O.A. No.2168/2024 respondents as the crux of those judgments is that the adhoc appointment, if was by a DPC going through the selection process and subsequently confirmed on regular basis by a subsequent DPC could only be reckoned towards eligibility for the next promotion. Learned counsel for the respondents has relied upon the judgment of Hon'ble High Court of Delhi in Union of India & Anr. K.L. Taneja and Anr. in WP(C) No.8102/2012. The said judgment is not relevant in the present facts for the reason that the applicants therein were promoted on ad hoc basis without convening of the DPC, which is not the case in hand. The applicant herein was promoted on ad hoc basis on the recommendations of the DPC held on 11.01.2017, however, for want of vacancies she could not be extended regular promotion from the said date. In the present facts, the explanation given by the respondents for not holding DPC is misplaced. Even if we exclude the period of Covid-19, yet there was a delay of three years in convening of DPC. The applicant has been put to disadvantage for not holding regular DPC from 31.05.2017 until 29.05.2023, and the fact is that her name was considered by a regular DPC but for want of vacancy 20 Item No. 53(C-3) O.A. No.2168/2024 she was extended adhoc Promotion. It may not be out of place to mention that the applicant is the senior most in the seniority after the promotion in pursuance of the recommendations of UPSC vide its letter dated 02.05.2023, therefore there could not be any affected party.
13. In view of the observations recorded hereinabove, the OA is allowed. It is directed that the period of ad hoc service rendered by the applicant on the post of Chief Prosecutor would be reckoned from 31.05.2017, i.e. the date when the vacancies on that post arose, for counting eligibility towards the post of Director (Prosecution).
There shall be no order as to costs.
(Dr. Chhabilendra Roul) (Pratima K. Gupta)
Member (A) Member (J)
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