Delhi Development Authority v. S.P. Singh

1. The present petition is directed against an order of 5.7.2011 passed by the Central Administrative Tribunal (hereafter referred to as “CAT”) in TA 195/2007. The CAT directed that even while treating the respondent/applicant as promoted to the grade of Executive Engineer w.e.f. 1.12.2012, his seniority would be fixed as if he was promoted w.e.f. 07.12.1999.

2. The brief facts are that the applicant was, at the relevant time, working as Assistant Engineer, when on 09.03.1998, a charge-sheet for minor penalty was issued to him. On 30.9.1999, a Departmental Promotion 2014:DHC:4511-DB W.P.(C) 1693/2012 Page 2 Committee (DPC) was constituted; it considered names of officers for promotion to the post of Executive Engineer. By apparent oversight, the applicant’s name - which ought to have been kept in sealed cover pursuant to extant Circulars and Memoranda governing the promotions in such eventualities - was considered for promotion; approved, and the sealed cover not maintained. He was, therefore, promoted to the grade of Executive Engineer on 07.12.1999. With the culmination of minor penalty disciplinary proceedings - which started as a result of the charge-sheet dated 09.03.1998 (hereafter referred to as “first charge-sheet”),- a minor penalty of stoppage of one increment for a period of one year without cumulative effect was imposed upon the applicant on 21.03.2000. This penalty has attained finality. In the meanwhile, on 19.10.2000, another charge-sheet (hereafter referred to as “second charge-sheet”) for an unrelated misconduct, proposing minor penalty was issued to the applicant. On 02.12.2000, another DPC was constituted. This time, the applicant’s name was not considered apparently because he already stood promoted w.e.f. 07.12.1999.

3. The second charge-sheet culminated in an order of penalty dated 03.05.2001. The minor penalty inflicted this time too was withholding of one increment for one year, without cumulative effect. Ultimately, the third DPC was held on 26.9.2001.

4. The petitioner passed an order dated 21.09.2006 by which his promotion - originally granted to the respondent w.e.f. 07.12.1999 was withdrawn, and he was considered to have been granted the same from 30.11.2002, when the effect of the second minor penalty ceased. A consequential order re-determining the applicant’s seniority too was drawn. In these circumstances, the respondent approached the Tribunal for quashing W.P.(C) 1693/2012 Page 3 of the order dated 21.9.2006 which fixed his seniority as if he had entered the cadre of Executive Engineer from 30.11.2002. The further direction sought was for restoration of his seniority based on the original date of his promotion.

5. It was argued before the CAT that an employee’s seniority would remain unaffected by imposition of minor penalty. The reasoning advanced was that if such effect were to be given, the public employee would, in effect, face double jeopardy since he would be imposed a penalty and would also lose seniority. The applicant had relied upon an Office Memorandum dated 09.11.1995 and the judgment of the Supreme Court in Shiv Kumar Sharma v. Haryana State Electricity Board, 1988 (Supp) SCC

669.

6. The CAT held that the applicant could not have been promoted w.e.f. 07.12.1999 when disciplinary enquiry was pending against him, but nevertheless determined that it would be wrong to reduce him in seniority because of the effect of the minor penalty. Based upon its understanding of the OM of 09.11.1995 and the ruling in Shiv Kumar Sharma (supra), the CAT quashed the order dated 21.9.2006 and directed that the applicant be restored seniority as if he was promoted w.e.f. 7.12.1999.

7. It is argued by the petitioner (hereafter called the “DDA”) that Clause 3.[1] of the Office Memorandum dated 14.09.1992 (NO. 22011/4/91-Estt (A)) issued by the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training (DoPT) had the effect that the consideration of the DPC of the respondents promotion on 30.09.1999 had to be disregarded altogether. Insofar as this OM is relevant it reads as follows: W.P.(C) 1693/2012 Page 4 "If any penalty is imposed on the Government servant as a result of the disciplinary proceedings or if he is found guilty in the criminal prosecution against him, the findings of the sealed cover/covers shall not be acted upon. His case for promotion may be considered by the next DPC in the normal course and having regard to the penalty imposed on him." Mr. Birbal submits that the real effect of the DoPT guideline of 1995 has been overlooked. Counsel contended that once the CAT concluded that the original promotion given to the applicant could not, in fact, have been validly granted, because of the failure to adhere to the guidelines concerning grant of promotion when employees face disciplinary proceedings, in the facts of this case, the applicant's entitlement to be considered for promotion itself arose after conclusion of the second disciplinary proceedings, i.e., when the second minor penalty order was passed on 03.05.2001. Mr. Birbal submits that OM dated 3.11.1995 inter alia, provides that “the officer who has been recommended for promotion by a DPC despite his penalty will be promoted only on the basis of the recommendation of the said DPC after the expiry of the penalty and his seniority would be fixed according to his position in that penal.” Therefore, the respondent became entitled to be considered for promotion only when the DPC was held on 26.09.2001. Accordingly, he has been considered as promoted by the said DPC and promotion granted w.e.f. 1.12.2002 when his second penalty ceased to have effects. As far as Shiv Kumar Sharma's case is concerned, DDA argues that the applicant cannot derive any benefit on account of an advantage gained by him due to its mistake as an employer; it was bound to follow the principle embodied in circulars which governed the situation. Therefore, the CAT's order, submits counsel in effect directs DDA not to W.P.(C) 1693/2012 Page 5 follow the principles contained in binding circulars.

8. Mr. Shankar Raju, learned counsel for the applicant, argues that the impugned order of CAT should not be interfered with. He submitted that once the DDA granted promotion to the applicant, on the basis of the available record, with effect from 07.12.1999, the fact that the sealed cover procedure was not followed ought not to visit him with adverse consequences. It was submitted that the effect of the minor penalties was given after the promotion order was issued; consequently, the determination of a date in 2002 as the point of time from which seniority could be reckoned, by the impugned order of the DDA, in 2006, was arbitrary. Therefore the CAT correctly concluded that the respondent/applicant's seniority had to be reckoned from the earlier date, i.e 07.12.1999 and not the later date, viz. 01.12.2002.

9. The entire office memorandum of 09.11.1995 reads as follows: "Subject:- Fixation of seniority in the case of delayed promotion due to penalty... The undersigned is directed to refer to the instructions contained in DOP&AR O.M. No.21/5/70-Estt. (A) (reiterated vide O.M. No.22011/2/78-Estt.(A) dated 16.2.79) according to which a Govt. servant on whom a minor penalty of withholding of increment etc. has been imposed should be considered for promotion by the DPC which meets after the imposition of said penalty and if he is considered fit for promotion despite the imposition of penalty the promotion may be given effect to after the expiry of the penalty. References have been received from various Departments seeking clarification on the question of seniority of such officers on their promotion. W.P.(C) 1693/2012 Page 6

2. It is clarified that the officer who has been recommended for promotion by a DPC despite his penalty will be promoted only on the basis of the recommendation of the said DPC after the expiry of the penalty and his seniority would be fixed according to his position in that panel."

10. The DDA's position, in the opinion of this Court, merits acceptance. The Office Memorandum of November, 1995 is concerned with the question of assignment of seniority of those who suffer minor penalties. The clarification was sought, in view of uncertainty on account of the date from which promotion had to be reckoned, for purposes of seniority. The guidance that a public employee "will be promoted only on the basis of the recommendation of the said DPC after the expiry of the penalty and his seniority would be fixed according to his position in that panel." is decisive. In the present case, there is no dispute that the applicant was promoted by an order which had overlooked the pendency of disciplinary proceedings. That consideration could not have been acted upon at all because the disciplinary proceedings resulted in a penalty. The subsequent DPC of 02.12.2000 was also held during the pendency of the second chargesheet and it resulted in a penalty subsequently. Therefore, even if the respondent had been considered and approved for promotion, he would not have been promoted. The third DPC of 26.09.2001- was held during the currency of the minor penalties imposed on the applicant for two successive years. The effect of these penalties concededly ended on 01.12.2002. In these circumstances, DDA contends that his promotion - and seniority have to be made effective after that date. In this Court's opinion, this position accords with the intent and purpose behind the Office Memoranda of 14.09.1992 and 03.11.1995.

11. Union of India etc. Vs. K.V. Jankiraman, AIR 1991 SC 2010, in W.P.(C) 1693/2012 Page 7 the opinion of this court affords an answer to the applicant's reliance on Shiv Kumar Sharma (supra). That decision was by a larger, three member Bench of the Supreme Court; pertinently the Court held as follows: "We are sure that the Tribunal has not intended that the promotion should be given to the officer from the original date even when the penalty imparted is of reduction in rank. On principle, for the same reasons, the officer cannot be rewarded by promotion as a matter of course even if the penalty is other than that of the reduction in rank. An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circum- stances. To qualify for promotion, the least that is expect- ed of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of a misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is, therefore, no discrimination when in the matter of promotion, he is treated differently. The least that is expected of any administration is that it does not reward an employee with promotion retrospectively from a date when for his conduct before that date he is penalised in presentii. When an employee is held guilty and penalised and is, therefore, not promoted at least till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct. In fact, while considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified. If,,further, the promoting authority can take into consideration the penalty or penal- ties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date W.P.(C) 1693/2012 Page 8 because of the pendency of the proceedings, although it is for conduct prior to the date the authority considers the promotion."

12. K.V. Jankiraman (supra) therefore, holds that a public employee visited with even a minor penalty can, at best, claim entitlement to promotion only after the effect of such penalty ceases to operate. This Court is bound by the authority of that decision to hold that the applicant could not have laid claim to promotion- and the consequential seniority - on any date prior to such date (i.e. upon expiration of the penalty which in the present case was 01-12-2002). The claim also had to be rejected because an employee similarly situated - in the sense of one inflicted with minor penalty at an earlier point in time, but within the period for which records are considered for promotion, would be made to wait or even overlooked, because of the penalty itself, whereas someone facing minor penalty proceedings would insist that, upon conclusion of proceedings and the effect of the penalty, he should be given seniority benefits from an anterior date.

13. In view of the foregoing reasons, this Court is of the view that the impugned order cannot be affirmed; it is set aside. The writ petition is allowed but in the circumstances there shall be no order as to costs.