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2009 DIGILAW 1167 (DEL)

Govt. of NCT of Delhi v. M. P. Shah

2009-10-26

MADAN B.LOKUR, MUKTA GUPTA

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JUDGEMNT Madan B. Lokur, J. (Oral) 1. The Petitioners are aggrieved by an order dated 1st June, 2009 passed by the Central Administrative Tribunal, Principal Bench, New Delhi in O.A. No. 846/2009. 2. The Respondent is a Scheduled Tribe candidate and was due for promotion from Grade II Delhi Administrative Subordinate Services (DASS) to Grade II DASS with effect from 20th September, 2004; However, his service records were not available with the Departmental Promotion Committee and therefore, the case of the Respondent could not be considered for promotion. However, a large number of other persons including three persons belonging to the Scheduled Tribe category were considered and promoted with effect from 20th September, 2004. 3. Subsequently, the case of the Respondent was again considered for promotion to Grade-I, DASS and in fact, he was granted promotion by an order dated 5th February, 2007 with assumed seniority from 29th August, 2005. ," 4. The Respondent was aggrieved by the fact that persons Junior to him had been promoted with effect from 20th September, 2004 while he was promoted only from 29th August, 2005. The Respondent represented against this but to no effect. Consequently, he preferred an Original Application before the Tribunal under Section 19 of the Administrative Tribunal Act, 1985. 5. Another grievance that the Respondent had was that when he was due to join the promotional post, his department declined to relieve him on the ground that a disciplinary enquiry was contemplated against him. In fact, a charge sheet was issued to the Respondent for imposing a major penalty on 3rd May, 2007 which, it may be noted, is after the date of recommending his promotion which is 5th February, 2007. The Respondent was aggrieved by the failure of the Petitioners to promote him and this was the other issue raised by him before the Tribunal. 6. After hearing learned counsel for the parties, the Tribunal was of the view that there was no occasion to withhold the promotion of the Respondent because in fact, the charge sheet was issued only on 3rd May, 2007 which is well after the date when he was recommended for promotion which is 5th February, 2007 with an assumed seniority of 29th August, 2005. The Tribunal also took the view that there was no reason to deny the promotion to the Respondent with effect from 20th September, 2004 when his juniors were promoted to Grade-I DASS. 7. Feeling aggrieved by the decision of the Tribunal, the Petitioner has approached this Court and it is submitted by learned counsel for the Petitioner that since a disciplinary enquiry was contemplated against the Respondent and in fact a charge sheet was issued to him on 3rd May, 2007 he cannot be allowed to join the promotion post. 8. Learned counsel for the Petitioner referred to an Office Memorandum dated 14th September, 1992 issued by the Ministry of Personnel, Public Grievance and Pensions, Department of Personnel and Training, Government of India. Reliance is placed on paragraph 7 of the Office Memorandum to submit that before the actual promotion of the Respondent, if there is any disciplinary enquiry pending against him, the Respondent could not be promoted. Paragraph 7 of the aforesaid Office Memorandum reads as follows: "Government servant, who is recommended for promotion by the Departmental Promotion Committee but in whose case any of the circumstances mentioned in para 2 above arises after the recommendations of the DPC are received but before he is actually promoted, will be considered as if his case had been placed in a sealed cover by the DPC he shall not be promoted until he is completely exonerated." (Emphasis Supplied) 9. A perusal of the aforesaid paragraph would clearly show that there is a reference to paragraph 2 of the Office Memorandum and the physical promotion can be denied only if the circumstances mentioned in paragraph 2 arise after the recommendations of the DPC are received and before the actual promotion is made. Paragraph 2 of the Office Memorandum reads as follows: "At the time of consideration of the case of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:(i) Government servants under suspension; (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and (iii) Government servants in respect of whom prosecution for a criminal charge is pending." 10. It is quite clear from a perusal of paragraph 2 of the Office Memorandum that none of the circumstances mentioned therein are applicable to the case of the Respondent. Clearly, therefore, the Office Memorandum dated 14th September, 1992 is inapplicable. 11. That apart, the promotion of the Respondent by an order dated 5th February, 2007 specifically mentions that the promoted official should be relieved with immediate effect with the direction to join the new assignment. The relevant extract of the order dated 5th February, 2007 reads as follows: "The Heads of Departments concerned should ensure that no Disciplinary proceedings are pending against any of the above mentioned officials, before relieving them to take up their new assignment. If any of the officials out of the above is not clear from vigilance angle as on date or has resigned/relieved/expired etc., the same should be brought to the notice of this Department immediately. It shall also be ensured that the officials are relieved with immediate effect with the directions to join their new assignment under intimation to this Department." (Emphasis Supplied) 12. The sum and substance of this discussion is that immediately on receipt of the order dated 5th February, 2007 the Respondent ought to have been relieved for joining his promotional post. However, the Respondent was not so relieved to join the promotion post. In fact, his relieving order was held up until the charge sheet was issued to him on 3rd May, 2007 and it is only after the charge sheet was issued to the Respondent that he was denied his promotion. In the ordinary course, if the Respondent had acted in accordance with the order dated 5th February, 2007 the Petitioners would have had to relieve him to enable him to join the promotion post in Grade-1 . DASS. The delay on the part of the Petitioner cannot be to the disadvantage of the Respondent. 13. In view of these circumstances, we are in agreement with the opinion expressed by the Tribunal that there was no warrant for withholding the promotion of the Respondent merely because a charge sheet was contemplated against him when the promotion was effected. 14. The other controversy is with regard to the date of promotion of the Respondent. As we have noted, the claim of the Respondent for promotion is from 20th September, 2004 which is the date of the promotion of his juniors. 14. The other controversy is with regard to the date of promotion of the Respondent. As we have noted, the claim of the Respondent for promotion is from 20th September, 2004 which is the date of the promotion of his juniors. The Respondent has been granted promotion with effect from 29th August, 2005. 15. The cause of delay is that the records of the Respondent were not received by the DPC at the time the case of the Respondent came up for consideration for promotion. This cannot be a ground for denying the promotion of the Respondent from the due date. If the Respondent is to be given an assumed seniority, it will have to be with effect from the date on which his juniors were promoted, that is, 20th September, 2004. That being the position, we are of the opinion that the Tribunal correctly held that the Respondent should be given his promotion with effect from 20th September, 2004 and not with effect from 29th August, 2005. 16. Learned counsel for the Petitioner submits that the Tribunal granted consequential benefits to the Respondent, which includes the difference in pay and allowances for the period in dispute. She says that the Respondent did not work on the promotion post and, therefore, he is not entitled to the difference in pay and allowances. 17. As we have noted above; the Respondent could not work in the promotion post entirely because of the mismanagement of its affairs by the Petitioner who conducted the DPC without even having the records of the Respondent available. Had the records been available, the Respondent would have got his promotion with effect from 20th September, 2004 and he would have earned his pay and allowances. The fact that the records of the Respondent were not available cannot prejudice him nor can it be an excuse to deny him the benefits of promotion and consequential benefits. 18. We are therefore, in agreement with the opinion of the Tribunal that the necessary benefits including the difference in pay and allowances should be granted to the Respondent. 19. We find no merit in the writ petition. 20. Dismissed.