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Through: Mr. Mahesh Srivastava with Mr. Ashok Kumar Sharma &
Mr. Vaibhav Manu Srivastava, Advs.
Through: Mr. Vinod K. Srivastava, Adv.
VALMIKI J. MEHTA, J (ORAL)
JUDGMENT
1. By this writ petition, the petitioner prays for setting aside the order of the respondent No.1 dated 30.4.1996 whereby the petitioner was redesignated from the Media Assistant Grade-I to Photographer Grade-I by withdrawing the designation of Media Assistant Grade-I ab initio.
2. On behalf of the petitioner it is pleaded and argued that the petitioner was appointed with respondent No.1 as an artisan trainee wayback in July, 1996 and thereafter he rose to the grade of Master Technician 2013:DHC:1240 on 25.6.1990. It is further pleaded that he remained as Master Technician until 12.10.1992 whereafter he was transferred to Publicity and Public Relations Department by the order dated 12.10.1992. Subsequently, the designation of the petitioner was changed from Master Technician/Photographer Grade-I to Media Assistant Grade-I by an order dated 13.10.1992 issued by one Sh. S.K.Sahay, Deputy Manager (personnel) w.e.f. 12.10.92 i.e the date of his joining the Publicity & Public Relations Department. The petitioner claims that the respondent No.1 withdrawing/cancelling ab initio the order dated 13.10.1992 thereafter issued the office order dated 30.4.1996, and which is argued to be illegal, inasmuch as the same has been issued without following the principles of natural justice. It is argued that the petitioner was rightly promoted to Media Assistant Grade-I.
3. On behalf of the respondent No.1, the case of the petitioner is very vehemently disputed. In fact grave allegations of fraud and manipulation of the official record have been made against the petitioner and which is alleged to be done in connivance with Sh.S.K.Sahai who issued the so-called office order dated 13.10.1992 (Annexure –A-1). It is contended in the counter affidavit that the order dated 13.10.1992 is a manipulated order and did not correctly exist in the official file inasmuch as there are no official notings before passing of the order dated 13.10.1992, and surely, there are bound to be some notings before a person is promoted. It is further contended in the counter affidavit of the respondent No.1 that change of the grade from Master Technician/Photographer Grade-I to Media Assistant being a change from a workman cadre to a supervisor cadre could only have been through a regularly constituted DPC, and never any DPC was constituted nor is the case of the petitioner that he participated in any DPC before being promoted to the post of a Media Assistant. It is also argued that in various documents issued after 13.10.1992, the petitioner has described himself as a Senior Photographer, showing that the petitioner never became a Media Assistant. Since the averments in the counter affidavit are relevant to determine the controversy, the preliminary objections in the said counter affidavit are reproduced as under:- “Preliminary submissions
1. That the petitioner is guilty of suppression of material facts and particulars. The petitioner in connivance and collusion with certain staff of the respondents illegally managed to obtain a letter dated 13.10.92 changing his designation from Photographer Gr.I to Media Assistant Gr.I. In fact the petitioner was never redesignated as Media Assistant by the Respondent.
2. The petitioner joined Bharat Heavy Electricals Limited (in short hereinafter called BHEL) at Ranipur, Hardwar as an Artisan Trainee in 1966. He was absorbed as Electrician Gr.B on 30-7-68, promoted as Electrician Gr.I on 22.6.74, promoted as Senior Artisan Gr.III on 25-6-80, then promoted as Sr. Artisan Gr.II on 25-6-85 and thereafter promoted as Master Technician on 25-6-90. He remained as Master Technician in Block IV- CIM Department until 12-10- 92 when on his request and on account of knowledge of photography he was transferred to Publicity and Public Relations Department by order dated 12-10-92 is enclosed herewith as Annexure R-1 (True English translation thereof is Annexure R-1/A). Subsequently, by order dated 13-10-92 petitioner’s designation was changed from Master Technician (A-IX/Technical side) to Photographer Gr.I (A-IX/Technical side) w.e.f. 12-10-92 i.e. the date of his joining the Publicity and Public Relations Department (hereinafter in short called the P & PR Deptt.). A true copy of the order dated 13-10-92 is filed herewith as Annexure R-2 (True English translation thereof is Annexure R-2/A).
3. The petitioner continued working as Photographer Gr.I in the P & PR Deptt. and continued discharging his duties as such.
4. The respondents started receiving complaints from some unions that some employees who were working as Master Technician/Photographer which are non-supervisory post have been designated as Media Assistant which is a supervisory post. The union alleged that this was done by some particular senior officer illegally and in collusion with the petitioner. The union office bearers, on verbal enquiry gave the particular instance of the petitioner.
5. That on such complaints being received, the matter was investigated and it was found that an office order dated 13-10-92 purported to have been signed by one Shri S.K.Sahay, Deputy General Manager (Personnel) was on the personal file of the petitioner and that by virtue of the said order the petitioner was purported to have been designated as Media Assistant Gr.I. It was found that the said alleged order dated 13-10-92 did not have any page number in continuity as was available on the other papers. It was also found that the page number of the earlier page had been changed from serial No.151 to 151-A and another circular inserted as Page NO. 151-B. No page number was given on the order dated 13-10- 92 allegedly changing the petitioners designation as Media Assistant.
6. It is further submitted that there were no notings/directions in the personal file of the petitioner in support of the alleged order dated 13-10-92 without which redesignation could not be effected.
7. That on further investigation it was found that the petitioner had been signing the attendance register as Senior Photographer (non-supervisory grade of A-IX/Technical) right upto 24-6-95. True copies of the attendance register during the period November, 1992 to 24-6-95 are filed herewith and are collectively marked as Annexure R-3. It is submitted that the wage period of the respondent Company ends on the 24th of every month.
8. The petitioner, consequent upon the transfer to P & PR Deptt. vide order dated 12-10-92 (Annexure R-1) submitted his joining report dated 3-11-92 to the P & PR Deptt. He showed himself as Photographer Gr. I same as Senior Photographer in the said joining report. True copy of the joining report of the petitioner is Annexure R-4. The petitioner was allowed by the P & PR Deptt. photographer equipment vide permission slip dated 13-9-94 in connection with covering some official; functions. This was also signed by the petitioner as Senior Photographer. True copy of the permission dated 13-9-94 is filed herewith as Annexure R-5. Another permission slip dated 2-9-94 issued by the P & PR Deptt. also describes the petitioner as Senior Photographer. True copy of the same is filed herewith as Annexure R-6. Yet another gate pass issued to the petitioner by the P & PR Deptt. on 25-7-94 counter signed by the Assistant Commandant (CISF) refers to him as Senior Photographer. True copy whereof is filed as Annexure R-7.
9. The petitioner submitted a Mecial TA claim dated 7- 6-95 is filed herewith as Annexure R-8.
10. That Shri S.K.Sahay, who is purported to have signed the office order dated 13-10-92 (copy filed by the petitioner as Annexure A-1) the service of the respondent on 13-6-95. It is obvious that the petitioner in collusion with the officer managed to illegally procure the said order from him redesignating him as Media Assistant.
11. It is further submitted that no formal procedure i.e. deliberation by Departmental Promotion Committee was adopted for allowing this change of designation. The DPC deliberations are done only on June every year to finalise promotion and change of designation from “Artisan” to “supervisor” cadre. It is further submitted that the employees in A-IX grade are not at all eligible for change of designation from Artisan to Supervisor.
12. The alleged order dated 13-10-92 purported to have been signed by Shri S.K.Sahay, was in view of the facts explained above canceled by office order dated 30-4-96. The petitioner cannot take advantage or benefit out of the alleged order dated 13-10-92 – he himself being guilty of illegally procuring the same.” (underlining added).
4. On behalf of the petitioner, in rejoinder, reliance is placed upon various documents issued by the respondent No.1, and which are from running pages 85 to 90 of the paper book and which show that the petitioner was being described as a Media Assistant Grade-I and not a senior photographer as is being urged by the respondent No.1. The petitioner has also placed reliance upon a judgment of the Supreme Court in the case of Prakash Ratan Sinha vs. State of Bihar & Ors., 2009 (14) SCC 690 to argue that once a person is appointed to a post, he thereafter could not have been demoted therefrom without following the principles of natural justice.
5. At the outset, I must state that fraud or forgery or manipulation nullifies everything which is built thereupon. A superstructure having the foundation of sand is bound to crumble once the foundation itself goes. This is being said by me because if the order dated 13.10.92 upon which the petitioner relies for being promoted as Media Assistant, is found not to be a valid document in the official file, then, even if the respondent No.1 has thereafter in some of its documents been calling the petitioner as Media Assistant Grade-I though in other documents the petitioner has contrarily been called only as Senior Photographer or Master Technician, will not make any difference with respect to the result of the writ petition once the fact is that the petitioner in fact was never appointed as a Media Assistant Grade-I. Before proceeding further, it is at this stage necessary to state that when the respondent No.1 in its counter affidavit specifically had mentioned with respect to the promotion to a Media Assistant being made only by holding of a DPC, in the rejoinder, except a bare denial, nothing has been stated. It has not been stated as to before which DPC the petitioner appeared for promotion, and when the DPC held its meeting to promote the petitioner from a Master Technician Grade-I/Senior Photographer to Media Assistant Grade-I. It is the case of the petitioner himself that on the appointment of the petitioner from a Master Technician to a Media Assistant there resulted a promotion, then surely that promotion had to be in accordance with the extant Rules of the respondent No.1. None of the parties have filed the extant Rules, however, in the counter affidavit reference is made to the promotion having to be made only by a DPC because the cadre of the petitioner on promotion from Master Technician Grade-I to Media Assistant Grade-I is changed from a workman category to a supervisor category. Onus was upon the petitioner who has come to the Court to specifically show what were the Rules or if there were no Rules and only a DPC was required, then which was the DPC which was held for promoting the petitioner from a Master Technician Grade-I to a Media Assistant Grade-I? The pleadings of the petitioner, both the writ petition and the rejoinder filed are conspicuously silent in this regard. Merely because both the parties, i.e petitioner on one hand and the respondent No. 1 on the other hand had been differently labeling the petitioner sometimes as a Master Technician/Senior Photographer Grade-I and sometimes as a Media Assistant Grade- I cannot be determinative of the fact that whether at all the order dated 13.10.92 which is relied upon by the petitioner for promotion to the post as a Media Assistant Grade-I is or is not a valid document.
6. In my opinion, there is a lot of strength in the averments made in the counter affidavit, inasmuch as, averments in the counter affidavit show that the order dated 13.10.1992 passed by Sh. S.K.Sahai (who has retired in the meanwhile), exists in the office file without any official notings of the petitioner being promoted to a Media Assistant Grade-I. Further there are no notings with respect to any DPC having been held. There is also a valid issue with respect to discrepancy of running page numberings as there is no page number given on the letter dated 13.10.92 whereby the petitioner was appointed as a Media Assistant.
7. In view of the facts of this case, the order dated 13.10.1992 relied on by the petitioner being not a legally valid document, the issue is that does the ratio of the judgment in the case of Prakash Ratan Sinha (supra) relied upon by the petitioner apply to the facts of the present case or not. In my opinion, the said judgment will not apply because in the said judgment, a person who was appointed as a daily wager was asked to discharge the work of accounts clerk in view of his qualification and experience and that appellant had filed a proper application before the Circle Promotion Committee for his promotion or reappointment to the post of accounts clerk and thereafter that request was considered by the Committee and thereafter that petitioner’s case was in fact recommended for change in nomenclature from a daily wager to an accounts clerk and consequential order was passed changing the nomenclature from labourer to an accounts clerk. Of course, subsequently this order was withdrawn on the ground that the same was contrary to the Rules, however, the very existence of the recommendation of the Committee dated 6.1.1998 was never in question. In the present case, however, the letter dated 13.10.92 is being questioned with regard to its legal existence, and the same is alleged by respondent No.1 to be fabricated and manipulated, and thus the ratio of Prakash Ratan Sinha (supra) cannot apply to the facts of the present case.
8. In my opinion, if I allow the writ petition, it would amount to the Court becoming its imprimatur to a fraud which was perpetrated upon the respondent No.1. As already stated above, no Rules are quoted by the petitioner for seeking promotion to Media Assistant Grade-I. Also, there is no reference to any DPC which the petitioner attended for being promoted from the workman cadre of Master Technician to the supervisor cadre of Media Assistant Grade-I. Any promotion order is bound to be preceded by appropriate notings in the official file, and which notings are conspicuously absent in the file of the petitioner. Quite clearly the order dated 13.10.1992 is a fabricated document, and I agree with the stand which has been taken up by the respondent No.1 in its counter affidavit.
9. In view of the above, the writ petition being without any merit, is dismissed with costs of Rs.20,000/-. Costs can be recovered by the respondent No.1 in accordance with law.
VALMIKI J. MEHTA, J MARCH 06, 2013 ak