Y L. BANKA v. LT GOVERNOR OF DELHI — 1996 DIGILAW 124 (DEL)

DR. M. K. SHARMA ( 1 ) THIS writ petition has been preferred TO by the petitioners praying for a direction to the respondents No. 1 to 3 to give to the petitioners their due promotions to the post of Superintending Engineer for which the petitioners were already selected through a proper and duly constituted Selection Committee and put on the approved panel. ( 2 ) THE petitioners were working as Executive Engineer in the Delhi Development Authority The petitioner No. 1 joined sen ice of the Delhi Development Authority (hereinafter called the "authority ) as an Assistant Engineer on 14. 2. 1969 from which post he was promoted to the post of Executive Engineer on 1. 3. 1977. ( 3 ) THE petitioner No. 2 joined sen ice as an Assistant Engineer with the Authority on 1. 3. 1969 and was promoted as Executive Engineer on 1. 3. 1977. The petitioners were in the consideration Zone for higher promotion to the post of Superintending Engineer The cases of the petitioners were considered by the Selection Committee for further promotion. The Departmental Promotion Committee on the basis of the aforesaid selection made their recommendations However, the recommendations, so far the petitioners are concerned, were kept in a sealed cover in view of the fact that vigilance enquiries were going on against them. ( 4 ) SUBSEQUENTLY, charge-sheets were issued to both the petitioners drawing up departmental proceedings against them and on completion of the departmental enquiry, the petitioner No. l was exonerated, whereas, the petitioner No. 2 was given a punishment of censure. Admittedly the charge- sheets in respect of the petitioner No. l and petitioner No. 2 drawing up departmental proceedings against them were issued on 20. 4. 1985 and 14. 10. 1985 respectively. Admittedly the charge- sheets in respect of the petitioner No. l and petitioner No. 2 drawing up departmental proceedings against them were issued on 20. 4. 1985 and 14. 10. 1985 respectively. ( 5 ) THE submission of the learned counsel for the petitioner is that so long as charge-sheet is not issued drawing up a departmental proceeding against the petitioner, it cannot be said that a departmental proceeding has been instituted against the delinquent officer and if no charge-sheet is issued, the respondents are duty-bound to consider the cases of promotion of the concerned officers and are not entitled to keep such matters of promotion in a sealed cover as was sought to be done in the instant case and therefore, are required to issue the orders of promotion if so recommended by the Departmental Promotion Committee. In support of his submission, the learned counsel for the petitioner relied heavily on the ratio of the decision of Union of India and Ors Vs. K. K Janaki Roman and Ors reported in 1991 (4) SSC 109. ( 6 ) MR. Apurab Lal. appearing for the respondents on the other hand relied upon the departmental circular issued by the Government of India (Department of Personnel and Training) on 121. 1988 and submitted that even if a departmental proceeding is contemplated, then also. the Departmental Authority has the power and jurisdiction to resort to sealed cover procedure and put the matter of promotion of the person whose conduct is under investigation in a sealed cover. ( 7 ) FROM the records it is disclosed that the Departmental Promotion Committee meeting for considering the matter of promotion of the petitioners was held on 29. 6. 1984. in which the names of the petitioners along with others were considered. The petitioner No. l was placed at Serial No. l. whereas- the petitioner No. 2 was placed at Serial No 6 of the panel However, the names of all the eligible Executive Engineers whose names were recommended for promotion were directed to be kept in panel subject to vigilance clearance report for their appointment which might arise at the level of Superintending Engineer. It is further revealed that, there was one clear vacant post of Superintending Engineer available at the time when the Departmental Promotion Committee held its meeting. It is further revealed that, there was one clear vacant post of Superintending Engineer available at the time when the Departmental Promotion Committee held its meeting. and another post became available on account of repatriation of OIK- of the Superintending Engineer Against the aforesaid two posts, two officers namely. Shri Amit Biswas and Shri M Kuppuswamy were promoted to the post of Superintending Engineer on 30. 8. 1984. Thereafter, two other officers, namely. Shri S. K. Garella and Shri H. C Gupta at Serial No. 3 and 5 of the panel were promoted on current duty charge basis by an order dated 27. 3. 1985 against resultant vacancies of Superintending Engineer. In view of the receipt of an adverse vigilance report against Shri S. K. Garella at serial No. 3, he was reverted to the post of Executive Engineer by an order dated 14. 10. 1985. It may be stated herein that, subsequently. Shri S K. Garella was exonerated from the charges levelled against him at the time of D. P. C. . He was given his notional promotion with effect from 30. 8. 1984 on the date when his junior was promoted to the post of Superintending Engineer. Mr. S. K. Garella was placed at a higher position when petitioner No 2 was placed at Serial No. 6. Even Shri H. C. Gupta, who was placed at Serial No. 5 in the panel was given notional promotion with effect from 30. 8. 1985 as is mentioned in the reply to the additional affidavit filed by the respondents on 29. 7. 1992. It has been specifically stated in paragraph 5 of the said reply to the additional affidavit that the petitioner No. 2 was not given promotion due to adverse vigilance report received in March, 1985 and as per instructions of the Government of India. Department of Personnel dated 30. 1. 1982. ( 8 ) THE petitioner No. I was exonerated of the charges on 9. 10,1981 and after such exoneration from the charges levelled against him, he has since been promoted to the post of Superintending Engineer on notional basis with effect from 30. 8. 1984 when his juniors were promoted. Department of Personnel dated 30. 1. 1982. ( 8 ) THE petitioner No. I was exonerated of the charges on 9. 10,1981 and after such exoneration from the charges levelled against him, he has since been promoted to the post of Superintending Engineer on notional basis with effect from 30. 8. 1984 when his juniors were promoted. Therefore, the only grievance that remains to be resolved in this writ petition in respect of the petitioner No. 1 is with regard to payment of arrear salary to the petitioner No. 1 for the intervening period, that is; the date from which he has been notionally promoted till the date of his actual promotion. ( 9 ) THE reason for not promoting the petitioner No. 2 having been clearly stated by the respondents in their reply to the additional affidavit. it now falls for my consideration as to whether the said reasons are valid and legal and as to whether the same are not arbitrary and illegal. ( 10 ) THE Departmental Promotion Committee admittedly considered the matter of promotion of the petitioner No. 2 also in its meeting held on 29. 6. 1984 and have found him fit for such promotion and recommended his name for such promotion. The charge-sheet instituting a departmental proceeding against the petitioner No. 2 was served on 14. 10. 1985. It is thus clear that on the day when the Departmental Promotion Committee considered the matter of promotion of the petitioner No. 2, there was no charge-sheet issued to petitioner No. 2 drawing up any departmental proceeding against him which came to be drawn up subsequently with service of the same on 14. 10. 1985. In the aforesaid view of the matter, in my opinion, the ratio of the judgment in K. V. Janaki Raman s case (supra) is squarely applicable to the facts of the present case. The Supreme Court in paragraph 16 of the said judgment has held that only when a charge memo in a disciplinary proceeding or a charge-sheet in a criminal prosecution is issued to the employee, then only it could be said that the departmental proceeding/criminal prosecution is initiated against the employee. The Supreme Court in paragraph 16 of the said judgment has held that only when a charge memo in a disciplinary proceeding or a charge-sheet in a criminal prosecution is issued to the employee, then only it could be said that the departmental proceeding/criminal prosecution is initiated against the employee. It was, further, held therein that the sealed cover procedure is to be resorted to only after the charge memo/charge-sheet is issued and that the pendency of preliminary investigation prior to that stage could not be sufficient to enable the authorities to adopt the sealed cover procedure. It may also be noted that the Supreme Court decision in K. V. Janaki Raman s case (supra), considered the effect of the circular/instruction dated 30. 1. 1982 as also the subsequent instruction dated 12. 1. 1988 and on appreciation thereof came to the aforesaid conclusion. In view of the aforesaid authoritative pronouncement of the Supreme Court. I hold that since no charge-sheet was issued to the petitioner No, 2 in respect of any departmental proceedings prior to 14. 10. 1985 and his name for consideration for promotion to the post of Superintending Engineer having been considered by the Departmental Promotion Committee on 29. 6 1984. the date on which the charge-sheet was not issued, the matter in respect of such promotion could not have been legally kept in a sealed cover. Since Shri H. C. Gupta who is at Serial No. 5 was given notional promotion with effect from 30. 8. 1984 the petitioner No. 2 having been placed at Serial No. 6, in my opinion, was also entitled to be promoted with effect from the same date, that is ,30. 8. 1984 In coming to the aforesaid conclusion I am fully guided by the ratio of the decision in K. V. Janaki Raman s case (supra) which according to me squarely covers the facts of the present case. ( 11 ) HAVING come to the aforesaid findings, it is required to be considered as to whether the petitioners arc entitled to full salary which they would have otherwise received on promotion, had their cases not been put erroneously in sealed cover. The learned counsel appearing for the respondents submitted before me that. a person cannot be allowed to draw the benefit of a post, the duties of which he has not discharged on the principle of no work No pay . The learned counsel appearing for the respondents submitted before me that. a person cannot be allowed to draw the benefit of a post, the duties of which he has not discharged on the principle of no work No pay . ( 12 ) ON consideration of the rival submissions of the learned counsel for the parties, I find that in K. V. Janaki Raman s case (supra) it has been held by the Supreme Court that the normal rule of no work No pay is not applicable to cases where the employee although he is willing to work is kept away from work by the Authorities for no fault of his. In the said case it is. therefore, held that where an employee is completely exonerated, meaning thereby that he is not found blameworthy in the lis and is not visited with the penalty even of censure, he is to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted, but. for disciplinary proceedings. In view of the aforesaid decision of the Supreme Court I have no hesitation in my mind to hold that so far the petitioner No. 1 is concerned, he is entitled to the benefit of the salary of the higher post along with the other benefits with effect from 30. 8. 1984, the date from which he has now been notionally promoted. Accordingly 1 direct that the. petitioner be paid the said arrear salary with effect from 30. 8. 1984 within three months from the date of receipt of a copy of this order. ( 13 ) IN case of the petitioner No. 2, the facts would be slightly different in view of the fact that subsequent to the initiation of the departmental proceedings, the petitioner w as found guilty and he has been imposed with the minor penalty of censure. Under such circumstances. I have to consider as to whether it could be directed that the petitioner should also be paid the benefit of the salary of the higher post along with the other benefits from the date from which he would have normally been promoted. The aforesaid question also appears to be answered in K. V. Janaki Raman s case (supra ). I have to consider as to whether it could be directed that the petitioner should also be paid the benefit of the salary of the higher post along with the other benefits from the date from which he would have normally been promoted. The aforesaid question also appears to be answered in K. V. Janaki Raman s case (supra ). In Civil Appeals No. 51-55/1990, decided along with the K. V. Janaki Raman s case (supra) it has been held by the Supreme Court that even if the results. in the sealed cover entitled the employees to promotion from the date their immediate juniors were promoted and they are. therefore, so promoted and given notional benefits and seniority etc. , the employee in no case should be given any arrear of salary. It is further held that the denial of the benefit of salary would of course be in addition to the penalty, if any, imposed on the employees at the end of the disciplinary proceeding. ( 14 ) IN view of the aforesaid decision of the Supreme Court, I hold that the petitioner No. 2 is not entitled to the benefit of his salary of the higher post with effect from 30. 8. 1984, although, he would be entitled to have the notional promotion from the said date in the post of the Superintending Engineer and other consequential benefits including seniority flowing therefrom. With the aforesaid directions and observations, this writ petition stands disposed of.