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2002 DIGILAW 1860 (DEL)

JAGDISH KUMAR v. MUNICIPAL CORPORATION OF DELHI

2002-12-17

VIJENDER JAIN, VUENDER JAIN

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Vijender Jain ( 1 ) ( 2 ) BY this writ petition, the petitioner seeks appropriate direction to the respondent to give the petitioner assumed seniority w. e. f. 3. 7. 1989, i. e. the date from which the juniors of the petitioner were promoted and were given promotion. The case of the petitioner is that the petitioner was eligible for promotion on 3rd July, 1989 and that promotion was not given to the petitioner on the ground of pendency of a vigilance case. No charge-sheet was issued to the petitioner at that time. Learned counsel for the petitioner has contended that the action of the respondent was totally contrary to the ratio laid down by Supreme Court in Union of India v. K. V. Jankiraman, AIR 1991sc 2010. It is the admitted case of the parties that the charge- sheet was issued to the petitioner on 18th September, 1989 for a misconduct relating to January, 1988, no Inquiry Officer thereafter was appointed and the proceedings were closed on the basis of a single hearing in December, 1991 and a minor penalty of censure was imposed on the petitioner. Though the respondent took four years for the pendency of the said proceedings and matter was only disposed of in a single hearing. The argument advanced by the learned Counsel for the petitioner was that if a disciplinary proceeding had been terminated within a reasonable period, the petitioner would have become eligible for promotion along with his juniors from 3rd July, 1989. ( 3 ) IT seems that the respondent fixed the seniority of the petitioner vide order dated 2. 8. 1996 w. e. f. 10th December, 1991 i. e. one day after imposing a penalty of censure. It was also contended that the respondent on their own had not treated the penalty of censure having any effect on the promotions and in this regard the petitioner cited a few examples in the writ petition. It was specifically pleaded that in the case of Mr. M. L. Tandon, IAD, penalty of censure was issued by office order dated 2. 3. 1988 and the respondent vide their order dated 25. 4. 1988 promoted Mr. M. L. Tandon as a Head Clerk w. e. f. 14. 12. 1987. It was specifically pleaded that in the case of Mr. M. L. Tandon, IAD, penalty of censure was issued by office order dated 2. 3. 1988 and the respondent vide their order dated 25. 4. 1988 promoted Mr. M. L. Tandon as a Head Clerk w. e. f. 14. 12. 1987. It was contended that because of arbitrary and discriminatory act of the respondent, the petitioner has been placed below his juniors in the seniority list of the UDC. It was also contended that even otherwise penalty of censure was a minor penalty and there was no bar as promotion to the higher post was concerned. ( 4 ) ON the other hand, Counsel for the respondent has contended that petition is hit by delay and laches. The petitioner has filed the writ petition after an inordinate and unexplained delay as the cause of action arose on 3. 7. 1989 when according to the petitioner he became due for promotion. Ms. Bajaj, learned Counsel for respondent/mcd has contended that as per Government of India Memorandum dated 12. 1. 1988 a person against whom a disciplinary case is pending or a decision has been taken to initiate disciplinary proceedings against him, the promotion will not be granted and his case will be kept in a sealed cover. In support of her contention, she has cited State of Haryana and Ors. v. Ajay Walia, (1997) 6 SCC 255 , and has contended that the ratio of jankiraman s case (supra), is not applicable. It was admitted in the counter affidavit that the petitioner was granted seniority in the cadre of UDC w. e. f. 10th December, 1991. Alternatively, she contended that in jankiraman s case (supra), the Officer Memorandum dated 12. 1. 1988 was not quashed. ( 5 ) I have given my careful consideration to the arguments advanced by learned Counsel for the parties. Let me first deal with the arguments on delay and laches in filing the writ petition. The petitioner was denied promotion w. e. f. 3. 7. 1989. However, charge-sheet was issued to the petitioner on 18th September, 1989 and that charge-sheet and proceedings continued for four years and minor penalty of censure was inflicted on the petitioner on 9th December, 1991. The petitioner was given assumed seniority from 10th December, 1991 but the respondent did not give seniority to the petitioner from 3rd July, 1989. 7. 1989. However, charge-sheet was issued to the petitioner on 18th September, 1989 and that charge-sheet and proceedings continued for four years and minor penalty of censure was inflicted on the petitioner on 9th December, 1991. The petitioner was given assumed seniority from 10th December, 1991 but the respondent did not give seniority to the petitioner from 3rd July, 1989. The petitioner wrote to the respondent on 11th June, 1992 that his juniors were promoted earlier than him and he has become junior to his juniors and he should be granted seniority from 3rd july, 1989. The said representation is at page 37 of the paper book. Again he represented to the respondent vide a letter dated 16th December, 1992, 8th April, 1983,6th December, 1993 and after many representations the respondent acceded to the request of the petitioner and allowed the petitioner assumed seniority w. e. f 10. 12. 1991. When the respondent took five years to grant seniority which was given by the respondent retrospectively from 1991 in 1996 to say that the petitioner was not vigilant and the writ petition suffers from delay and laches, is not tenable. Even otherwise the petitioner after grant of assumed seniority by the respondent from 1991 in 1996 did not acquiesce to grant of seniority from 10th December, 1991 but made repeated representations to the respondent and some of the representations have been filed along with writ petition. Letter dated 18. 12. 1996, which is at page 45 of the paper-book representation dated 28. 7. 1997 (page 47 of the paper-book), representation dated 15. 9. 1997 (page 49 of the paper-book), representation dated 5. 2. 1999 (page 50 of the paper-book), representation dated 18. 2. 1999 (pages 51-52 of the paper-book), representation dated 29. 6. 1999 (page 53 of the paper-book) and representation dated 1. 8. 2000 (pages 54-55 of the paper-book ). By all these representations the petitioner, inter alia, prayed to the respondent to re-fix his seniority from 3rd July, 1989. After he lost all his hope of justice from the respondent he filed the present writ petition in the year 2001. Therefore, it cannot be said that the petitioner has acquiesced to the action of the respondent granting him seniority from 10th December, 2001. Therefore, the authority of State of Haryana (supra), is of no help to the respondent. After he lost all his hope of justice from the respondent he filed the present writ petition in the year 2001. Therefore, it cannot be said that the petitioner has acquiesced to the action of the respondent granting him seniority from 10th December, 2001. Therefore, the authority of State of Haryana (supra), is of no help to the respondent. Following the ratio laid down in Moon Mills Ltd. v. M. R. Meher, President, Industrial Court, Bombay and Ors. , AIR 1967 SC 1450 , from the circumstances of this case 1 do not consider there is such acquiescence on the part of the petitioner so as to dis-entitle him for grant of writ under Article 226 of the constitution of India. It is true that writ cannot be granted if there is negligence or inaction on the part of the petitioner to ask for writ as taken in conjunction with the lapse of tune and other circumstances cause prejudice to the adverse party. In the present case I am of the opinion that there is no such negligence or lapse or acquiescence on the part of the petitioner so as to dis-entitle him for the grant of writ. ( 6 ) COMING to the second submission of the respondent that the petitioner was not entitled to the seniority in view of the Office Memorandum of the Government of India dated 12. 1. 1988, the argument of the respondent is untenable in view of jcmkiraman s case (supra ). In Jankiraman s case it was held that promotion cannot be stopped on the basis of the pendency of vigilance case. Even otherwise, no charge- sheet was issued to the petitioner on the date when the petitioner became eligible for promotion on 3. 7. 1989 as the charge-sheet was only issued against the petitioner on 18. 9. 1989. As on cut-off date there was no charge-sheet issued to the petitioner. I find no force in the arguments of Counsel for the respondent that as in Jankiram s case (supra), the Office Memorandum dated 12. 1. 1988 was not quashed, the respondent was justified not to give promotion to the petitioner from 3rd July, 1989. Petitioner has also cited cases of Mr. M. L. Tandon and Mr. Chhedda Lal to show discrimination with regard to the promotion. The counter affidavit filed by the respondent is totally silent on the charge of discrimination. 1. 1988 was not quashed, the respondent was justified not to give promotion to the petitioner from 3rd July, 1989. Petitioner has also cited cases of Mr. M. L. Tandon and Mr. Chhedda Lal to show discrimination with regard to the promotion. The counter affidavit filed by the respondent is totally silent on the charge of discrimination. ( 7 ) FOR the reasons stated above, I allow the writ petition. I issue direction to the respondent to grant assumed seniority to the petitioner from 3. 7. 1989 when he became eligible for promotion along with other persons. ( 8 ) WRIT petition is allowed. Rule is made absolute. .