Delhi High Court
Uma Shanker Sahoo And Ors. vs Delhi Development Authority And Ors. on 1 May, 1999
Equivalent citations: 1999(50)DRJ252
Author: K. Ramamoorthy
Bench: K. Ramamoorthy
JUDGMENT K. Ramamoorthy, J.
1. Before I deal with the points raised by the learned counsel for the writ petitioners it is necessary to notice the facts in each of the cases. -
2. In CW 1037 of 1989 the petitioner was appointed as Junior Engineer (Electrical) on 13.2.1976. He was declared quasi-permanent vide E.O. 134 dated 10.1.1980 with effect from 12.2.1979. While in service the petitioner acquired Engineering Degree. At the time of appointment he was a Diploma holder. In 1983 there were 25 posts of Assistant Engineers vacant. On 22.8.1983 a Departmental Promotion Committee was held and the petitioner was promoted as Assistant Engineer (Elect.) after considering the records of the petitioner. The petitioner along with other 24 Assistant Engineers (Elect.) promoted was given current duty charge because all the promotees did not have the minimum eligible experience of 3 years or 8 years, as the case may be. On 14.11.1986 the petitioner made a representation to the first respondent that he had become eligible for regularisation on 13.2.1984 and, therefore, he should be regularised and his salary be paid on regularisation. It is stated in the writ petition that there was a civil writ petition pending in this Court filed by some Junior Engineers praying for the preparation of a seniority list without any reference to the educational qualification either diploma or degree. That litigation came to an end in October 1988. Thereafter on 6.10.1988 the petitioner made a representation that he might be regularised as the Departmental Promotion Committee in its meeting held on 22.8.1983 had found him to be fit. The petitioner along with other Assistant Engineers (Elect.) on current duty charge had undergone a training course on quality control in electrical works.
3. On 29.3.1989 and 31.3.1989 the Departmental Promotion Committee had held its meetings for considering the case of officers for promotion. The select list was published on 7.4.1989. The petitioner's name was not found therein. On 10.4.1989 the petitioner made a representation to the Commissioner (P). The petitioner met the Commissioner (P) when the latter expressed its inability to help on the ground that the Departmental Promotion Committee which met in March 1989 had found the petitioner not fit for promotion. The main point taken by the petitioner is that the Departmental Promotion Committee in its meeting dated 22.8.1983 after considering the performance of the petitioner had found him fit and there cannot be a decision contrary to the decision taken by the D.P.C. in 1989. It is stated in paragraph 19 E as under:
The respondent No. 1 also promoted Assistant Engineers to the post of Executive Engineers on current duty charge as on 22.8.1983 and when their eligibility period of length of service as Assistant Engineer was over, the respondent No. 1 vide its Esstt. Order No. 3181 dated 25.9.86 was pleased to regularise their services on purely temporary basis as Executive Engineers with effect from 17.3.85, 19.2.85, 6.10.85 and 7.10.85, the dates when they completed the eligibility period as Assistant Engineers to be promoted as Executive Engineers and thus the petitioner is being discriminated by the respondent No. 1 and is violative of Article 14 and 16 of the Constitution of India.
4. The petitioner further stated that the Departmental Promotion Committee which met in 1989 apparently had not considered the case of the petitioner in the light of his performance. It is urged in paragraph 19F as under
"That the second Departmental Promotion Committee sit over the wisdom of the first Departmental Promotion Committee which recommended the petitioner to be promoted as Assistant Engineer (Elect.) about 5.1/2 years back when he was not having even the minimum requisite length of service to his credit and it shows the efficiency and the sincerity with which the petitioner must have put his services with the respondent No. 1 and thereafter as Assistant Engineer (Elect.). Therefore, neither the Departmental Promotion Committee nor the respondent No. 1 can deprive the petitioner from his legal right to be regularised from the back date i.e. February 1984 since when the petitioner has been performing his duties as Assistant Engineer without any break in service or without any kind of penalty whatsoever."
5. On these grounds the petitioner has prayed for the following reliefs:
i) Issue a writ of certiorari or any other writ to quash the impugned order E.O. No. 1414 dated 7.4.1989.
ii) Issue a writ of mandamus or any other writ to declare the E.O. No. 3497 dated 22.8.1983 as regularised and your petitioner be treated as regular Assistant Engineer (Elect.) with effect from the date of his eligibility in February, 1984 and is entitled to all the consequential reliefs of pay allowances, etc."
6. The DDA in its counter has stated that it could not hold the Departmental Promotion Committee Meetings because of the pendency of the writ petition in this Court. Departmental Promotion Committee meetings were held on 29.3.1989 and 31.3.1989 and the petitioner was found not fit. It is stated in paragraph 5 of the counter affidavit as under:
"A reference to the order dated 25th September, 1986 would show that Assistant Engineer who were promoted to the post of Executive Engineer were also promoted on the basis of the recommendations of D.P.C. and they were not promoted to the post of Executive Engineer (Electrical) simply because they had on that date become eligible for such promotion, their cases were considered by D.P.C. and D.P.C. recommended for their promotion. In case the D.P.C. had recommended the petitioner for promotion, the Competent Authority would have actually issued the order for promotion of the petitioner to the post of Assistant Engineer (E/M). The decision by the disciplinary authority is based on the recommendation of the D.P.C. It is further pointed out that recently a meeting of D.P.C. to consider the promotion of J.E.(E) to the post of A.E.(E/M) was held on 13.12.89. The said D.P.C. after due consideration of the performance report of the petitioner for the last 5 years has recommended the petitioner 'fit' for promotion to the post of A.E.(E/M). Accordingly, he has been promoted on regular basis vide E.O. No. 5252 dt. 22.12.89. These orders will take effect from the date of joining."
7. The petitioner filed what is called a counter affidavit to the affidavit filed by the DDA. It is stated that the second Departmental Promotion Committee held on 29.3.1989 and 31.3.1989 had no jurisdiction to compare the ACRs of the petitioner as Assistant Engineer with ACRs of other Junior Engineers who were subordinates to the petitioner for the last over six years. Reference is made to Office Memorandum dated 24.12.1980 about which reference will be made later.
8. In CWP 1090/89 the petitioner was appointed as Junior Engineer (E) on 16.6.1981. The petitioner had obtained a degree in Mechanical Engineering. The petitioner is one of the 25 officers who were promoted as Assistant Engineers (Electrical) on the basis of the evaluation by the Departmental Promotion Committee in its meeting dated 22.8.1983. This petitioner was also given current duty charge as he was short of minimum eligible experience. The petitioner successfully completed the period of current duty charge as on 16.6.1984. On 29.5.1984 the petitioner made a representation to the first respondent for regularization and for full salary as Assistant Engineer (E). This petitioner has also referred to writ petition pending in this Court which was eventually dismissed by the Supreme Court in October 1988. This petitioner had also undergone training course in quality control in electrical works. In the meetings held by the Departmental Promotion Committee on 29.3.1989 and 31.3.1989 the petitioner was not selected. The order was issued on 7.4.1989 and this is challenged. On 10.4.1989 this petitioner had also made representation to the Commissioner (P) of the first respondent. The same point that is urged by the petitioner in CW 1037/89 is urged by this petitioner. It is riot necessary to refer to the representation made by the petitioner.
9. The DDA in its affidavit showing cause why the writ petition be not admitted has stated that in the Departmental Promotion Committee Meetings held in March 1989 the petitioner was found not fit. It is stated in paragraph 5 of the counter affidavit as under:
"A reference to the order dated 25th September, 1986 would show that Assistant Engineer who were promoted to the post of Executive Engineer were also promoted on the basis of the recommendations of D.P.C. and they were not promoted to the post of Executive Engineer (Electrical) simply because they had on that date become eligible for such promotion, their cases were considered by D.P.C. and D.P.C. recommended for their promotion. In case the D.P.C. had recommended the petitioner for promotion, the Competent Authority would have actually issued the order for promotion of the petitioner to the post of Assistant Engineer (E/M). The decision by the disciplinary authority is based on the recommendation of the D.P.C. It is further pointed out that recently a meeting of D.P.C. to consider the promotion of J.E.(E) to the post of A.E.(E/M) was held on 13.12.89. The said D.P.C. after due consideration of the performance report of the petitioner for the last 5 years has recommended the petitioners again unfit for promotion to the post of A.E.(E/M) on regular basis. Accordingly, once the petitioner has been considered for promotion and found unfit, thereafter nothing survives in the writ petition".
10. Here also the petitioner has filed what is called counter affidavit to the affidavit filed by the DDA challenging the stand taken by the DDA. The petitioner has also referred to the Office Memorandum dated 24.12.1980.
11. In CWP 1091/89 the petitioner was appointed as Junior Engineer (E) in February 1976. He was declared quasi- permanent with effect from February 1979 vide E.O. No. 134 dated 10.1.1980. This petitioner was also promoted as Assistant Engineer (E), though he did not possess the minimum eligibility qualification, on the basis of the assessment made by the Departmental Promotion Committee on 22.8.1983. This petitioner had also made representation for regularisation on the ground that he had successfully completed the period of current duty charge in February 1984. In the Departmental Promotion Committee meetings held in March 1989 this petitioner was not selected. The order issued by the first respondent on 7.4.1989 is challenged. This petitioner had also made a representation dated 10.4.1989 to the Commissioner (P) of the respondent No. 1. This petitioner has also urged the same points as has been urged in the writ petitions above referred to. This petitioner had made representation subsequently thereto and it is not necessary to refer to it in detail.
12. The DDA in its affidavit by way of showing cause why the writ petition be not admitted has stated that in the Departmental Promotion Committee meetings held in March 1989 found the petitioner not fit and therefore he was not promoted. In paragraph 5 it is stated that by virtue of this order the petitioner is now functioning as Assistant Engineer (E/M). The petitioner has prayed for the following reliefs:
i) Issue a writ of certiorari or any other writ to quash the impugned order E.O. No. 1414 dated 7.4.1989,
ii) Issue a writ of mandamus or any other writ to declare the E.O. No. 3497 dated 22.8.1983 as regularised and your petitioner be treated as regular Assistant Engineer (Elect.) with effect from the date of his eligibility in February, 1984 and is entitled to all the consequential reliefs of pay allowances, etc.
13. In CWP 1092/89 the petitioner was appointed as Junior Engineer (E) in February 1976. He was also declared quasi permanent with effect from February 1979 vide E.O. No. 134 dated 10.1.1980. This petitioner was also one of the Junior Engineers who were promoted as Assistant Engineers on the basis of the decision of the Departmental Promotion Committee held on 22.8.1983. His case is also that he successfully completed the period of current duty charge in February 1984 and, therefore, he should be regularised and he should be given all the benefits arising out of regularisation. He had also made a representation in this behalf in February 1984. This petitioner also had undergone a training course on quality control in electrical works. In the meetings held by the Departmental Promotion Committee in March 1989 the petitioner was not selected and the petitioner came to know from the order passed by the first respondent on 7.4.1989 which is challenged in the writ petition. This petitioner had also made a representation on 10.4.1989 to the Commissioner (P) of the first respondent. This petitioner has also taken the same points urged by the other writ petitioners referred to above.
14. On 18.1.1990 the DDA filed an affidavit by way of showing cause why the writ petition be not admitted. It is stated that the meetings of the Departmental Promotion Committee could not be held as there was writ petition pending in this Court. Departmental Promotion Committee meetings were held in March 1989 and the petitioner's case was considered. He was not found fit for promotion.
15. In all these cases the DDA has urged that the promotions of the petitioners on officiating basis on current duty charge, as was made in 1983 would not confer on them any right for regularisation or confirmation. It is stated in para 5 that if the Departmental Promotion Committee had recommended the case of the petitioner, the Competent Authority would have no objection to promote the petitioner. The petitioner has prayed for the following reliefs:
i) Issue a writ of certiorari or any other writ to quash the impugned order E.O. No. 1414 dated 7.4.1989.
ii) Issue a writ of mandamus or any other writ to declare the E.O. No. 3497 dated 22.8.1983 as regularised and your petitioner be treated as regular Assistant Engineer (Elect.) with effect from the date of his eligibility in February, 1984 and is entitled to all the consequential reliefs of pay allowances, etc.
16. The learned counsel for the petitioners Mr. O.P. Khadaria referred to the Memorandum dated 24,12.1980 and submitted that was not followed by the DDA in considering the case of the petitioners and that had deprived them of their cases being considered for promotion The learned counsel for the petitioners, Mr. O.P. Khadaria also referred to the judgments of the Supreme Court in A.K Subraman and Ors. v. Union of India and Ors., , Rama Kant v. Divnl. Supdt., Northern Rly., Moradabad, . Surinder Singh and another v. The Engineer in Chief, C.P.W.D., and Ors., , Madan Singh and Ors. etc. v. State of Hariyana and Ors., and the decision in Daleep Singh v. The State of Rajasthan and Ors., 1982 (3) SLR 36. The ratio laid down in this case that adverse remarks with reference to subsequent year when the vacancy arose cannot be looked into for the purpose of filling up of the vacancy would not apply to the instant case. The learned counsel for the petitioners also referred to the judgment of the Supreme Court in U.P. Jal Nigam and Ors. v. Prabhat Chandra Jain and Ors., for the proposition that if there was any down grading in the ACRs the petitioners should have been given notice and with reference to the petitioners there was no such notice and the records of the petitioners were good and all of them should have been promoted and the decision of the Departmental Promotion Committee meetings held in March 1989 was not in accordance with law. I am not able to accept. The position in the instant case is entirely different.
17. The Memorandum issued by the Government of India, Ministry of Home Affairs dated 24.8.1980 reads as under;
ANNEXURE 'H' A TRUE COPY OF THE O.M. NO.22011/3/78-Estt.(D) DATED 24-12-80 No. 22011/3/78-Estt(D) Government of India Ministry of Home Affairs Department of Personnel & A.R. New Delhi, the 24th December, 1980 OFFICE MEMORANDUM Subject: Principles for promotion to 'Selection' posts Large number of clarifications are being sought by the various Ministries/Departments on various aspects while preparing a panel for posts to be filled on the basis of selection. The various points raised are as below:-
Preparation of year-wise panels by DPC when they have not met for a number of years.
4.(a) Instructions already exist that DPCs should meet at regular annual intervals for the preparation of select lists and where no such meeting is held in any year, the appointing authority should record a certificate that there were no vacancies to be filled during the year. Administrative Ministries should obtain periodical information/certificates on the regular holding of DPCs.
(b) Where, however, for reasons beyond control, DPC could not be held in any year(s) even though the vacancies ai ise during that year (or years), the first DPC that meets thereafter should follow the following procedure:
(i) Determine the actual number of regular vacancies that arose in each of the previous year/years immediately preceding and the actual number of regular vacancies proposed to be filled in the current year separately,
(ii) Consider in respect of each of the year those Officers only who would be within the field of choice with reference to the vacancies of each year starting with the earliest year onwards.
(iii) Prepare a consolidated 'select list' by placing the select list of the earlier year above the one for the next and so on. Illustration:
D.P.C. meets in 1980. Number of vacancies in the year 1978 and 1979 were 8 and 7 respectively. It is proposed to fill also 9 more vacancies during 1980. There are 100 eligible officers. Panel for 1978 No. of vacancies :... 8 Field of choice :... 24 Take Officers :... 1 to 24 DPC classified : Sl. No. 20 as 'outstanding' and sl. Nos. 7 and 15 'not fit' and rest 'very good'. Panel list will be :.... Sl. Nos. 20, 1, 2, 3, 4, 5, 6, 8. Panel for 1979. No. of vacancies 7, field of choice 21. This comprises officers Nos. 7, 9 to 19, 21 to 29 (total 21). The DPC classified No. 7 as 'not yet fit' and rest 'very good'. Panel will comprise of 8 Nos. 9 to 15.
Panel for 1980.
No. of vacancies 9 - Field of choice 27. This will comprise Nos. 7, 16 to 19, 21 to 42.
No. 50 is graded 'very good' and the rest as 'Good'.
Consolidated select list- 51 Nos. 21, 1 to 6, 8, 9 to 15, 40, 7, 16 to 19, 21 to 23.
(c) For the purpose of evaluating the merit of the officers, the record of services of the officers for the purpose of considering for inclusion in the panel relevant to any of the earlier years as contemplated in Clause (b) above should be limited to the record that -would have been available a had the DPC met at the appropriate lime for instance, for preparing the panel relating to the vacancies of 1978, records of service of the officers only upto 1978 should be taken into account and not the subsequent ones. However, if on the date of actual DPC (1980) in the illustration Department Proceedings are in progress and under the existing instruction sealed cover procedure is to be followed such procedure should be (sic) served even if no such proceedings were in existence in the year to which the vacancy related (e.g. if in the illustration, in respect of officer No. 6 empanelled against a 1978 vacancy even though the disciplinary proceedings were started only in 1980 (prior to DPC meeting), his name has to be kept in the sealed cover till the proceedings are finalized 18. No doubt the Memorandum should have been followed by the first respondent in filling up the vacancies bill the DDA could not proceed to hold Departmental Promotion Committee meetings because of the pendency of writ petition in this Court. Therefore the petitioners cannot have any grievance against the DDA for not holding the meetings of the Departmental Promotion Committee as mentioned in the Memorandum. The learned counsel for the petitioners, Mr. O.P. Khadaria submitted that the formula given in the Memorandum by way of illustration should have been adopted by the DDA and that had not been done. The petitioners should have been considered at the appropriate time and they would have been promoted. He further submitted that when the Departmental Promotion Committee in its Meeting held on 22.8.1983 could find the petitioners fit for promotion having regard to their performance even though they did not satisfy the eligibility qualification, the Departmental Promotion Committee which met in March 1989 had not acted fairly and reasonably and there had been no evaluation of the performance of the petitioners in accordance with law and that had completely affected the rights of the petitioners. According to learned counsel for the petitioners Mr. O.P. Khadaria the first respondent had acted contrary to and infringing the Fundamental Rights of the petitioner under Articles 14 and 16 of the Constitution of India.
18. The submission, made by Mr. O.P. Khadaria relying upon the judgments of the Supreme Court, which according to the learned counsel would support the case of the petitioners, cannot at all be accepted. The Departmental Promotion Committee which met in March 1989 had considered the case of the petitioners and on the basis of their performance and reports found in the ACRs did not find the petitioners fit for promotion. The submission by Mr. O.P. Khadaria, learned counsel for the petitioners that the Departmental Promotion Committee which met in March 1989 had no legal authority to come to a different conclusion from the one arrived at by the Departmental Promotion Committee which held its meeting on 22.8.1983 is not at all tenable in law. When the Departmental Promotion Committee which met in March 1989 has come to the conclusion on the basis of the materials available on record taking into account the performance of the Officers coming within the zone of consideration the petitioners cannot have any grievance in law. The petitioner in CWP 1037/89 was found fit by the Departmental Promotion Committee in its meeting held on 13.12.1989. The petitioner in CWP 1090/89 was not found fit and therefore he was not promoted. The petitioner in CWP 1091/89 was found fit and was promoted in December 1989. The petitioner in CWP 1092/89 was not considered fit and the DDA had said whenever the Departmental Promotion Committee found him fit he will be promoted. When Departmental Promotion Committee had assessed the merits of the petitioners along with other Engineers and found the petitioners not fit in its meeting held in March 1989 no question of down grading would arise and reliance by the learned counsel for the petitioners on the decision of the Supreme Court in U.P. Jal Nigam and others v. Prabhat Chandra Jain and Ors., is without any force.
19. I do not find any merit in the contentions put forth on behalf of the petitioners. Accordingly all the writ petitions stand dismissed.
20. There shall be no order as to costs.