Full Text
HIGH COURT OF DELHI
JUDGMENT
VIRENDRA JAIN..... Petitioner
Through: Mr. Shanker Raju, Mr. Nilansh Gaur and Mr. R. L. Dhawan, Advs.
Through: Mr. Bhagvan Swarup Shukla, CGSC with Mr. Saksham Sethi, G.P. and
Mr. Sarvan Kumar and Ms. Sunita Shukla, Advs. for UOI
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
1. The challenge in this petition is to an order dated September 3, 2003 of the Central Administrative Tribunal, Principal Bench, New Delhi (‘Tribunal’, for short) in Original Application being OA 59/2003 whereby the Tribunal has dismissed the OA filed by petitioner herein by stating that the same is without any merit.
2. The facts as noted from the record are, the petitioner was appointed as Medical Officer Grade-I (Junior Scale) in the Central Health Services under the Ministry of Health and Family Welfare, Government of India, in the month of October, 1987. In July, 1988, he was selected for appointment to a post in Special Protection Group of the Cabinet Secretariat. The petitioner in October, 1988 was placed under suspension because he was arrested in a matter in FIR NO. 299/1988 with respect to offences punishable under Sections 304-B and 498-A of the Indian Penal Code, 1860 (‘IPC’, for short). On October 11, 1991, he was acquitted by the learned Additional Sessions Judge, New Delhi.
3. According to him, he had intimated the department of his acquittal. But his suspension was revoked only on April 28, 1995, which order was received by the petitioner in June, 1995. The petitioner joined the services thereafter. He contended that he has not been paid full pay and allowances from the date of his acquittal till June, 1995, when he came to know about his reinstatement and joined the post.
4. His case was also that he has not been considered for promotion. According to the petitioner the subsequent confidential reports of the petitioner could not have been taken into account for denying him promotion. In other words, the confidential reports if any of the earlier years should have been taken into consideration, which admittedly were not recorded for the fault of the respondents.
5. The case of the respondents before the Tribunal was by conceding to the facts highlighted, that during suspension, the petitioner was drawing subsistence allowance. But despite order of reinstatement, he did not join his duties. He was paid the salary for the period he has worked. He was also given an opportunity to explain as to why the period of February 1, 1992 to June 5, 1995 may not be treated as dies non. After considering the relevant facts including the explanation submitted by the petitioner and the fact that the order regarding revocation of suspension has not been received back undelivered, it was decided that the period of suspension from February 1, 1992 to June 5, 1995 be treated as dies non. It was the case of the respondents that by taking into account his subsequent conduct / performance, he was not found fit to be promoted.
6. The petitioner had earlier preferred an OA No. 648/2000, which came up for consideration before the Tribunal on July 24, 2001. The Tribunal had disposed of the OA directing the respondent (s) to pass order in accordance with the provisions of FR 54(B)(1) and (B)(3) and also consider the claim of the petitioner by taking note of the decision of the Supreme Court in K.V.Janakiraman v. U.O.I, I99l (2) SCALE 4
23. The respondent had accordingly passed an order dated May 23, 2002 by stating in paragraph 7 as under: “7. It is in pursuance of the said directions that the impugned order dated 23-5-2002 has been passed. That order reads -
5. As per the provisions of CHS Rules, 1982 (as then applicable, the eligibility for promotion of Medical Officer to Senior Medical Officer in General Duty Sub- Cadre of CHS was 4 years of regular service in the grade on seniority-cum-fitness basis without linkage to vacancies. Senior Medical Officer in the General Duty sub-cadre with 6 years regular service in the grade or on completion of ten years as Medical Officer and Senior Medical officer of which two years shall be as Senior Medical officer are to be Considered for promotion to the rank of CMO on the basis of senioritycum-fitness subject to the availability of vacancies.
6. A meeting of DPC to consider the promotion of Dr. Jain, Medical Officer in the scale of pay of Rs. 2200- 4000 (pre-revised) Rs. 8000-13500 (revised) to the grade of Senior Medical officer Rs.3000-4500 (prerevised) Rs. 10,000-15200 (revised) was held on 15.03.02, under the chairmanship of Additional Secretary (P), Ministry of Health & Family Welfare,
7. The DPC noted the order of CAT, Principal Bench, New Delhi and considered the case of Dr. Jain Medical officer for promotion to the grade of Senior Medical Officer with reference to the date of his immediate junior. Dr. Harjit Kaur Grewal who was promoted with effect from 04.08.91.
8. The DPC observed that this was a peculiar case where no ACRs were available for the relevant period and there were no guidelines for assessing such cases as even other relevant records such as Assessment Report for promotion etc. also were not available to assess the suitability. The DPC therefore assessed the case of promotion of Dr. Virendra Jain to the rank of Senior Medical Officer on the basis of his performance during the subsequent years
9 The DPC took note of the fact that even after his suspension vies revoked on 31.01.92, Dr. Jain failed to join his duties and remained on unauthorised absence upto 05-06-95. This period has been treated as dies-non. Dr. Jain further absented from duty from 19-06-95 to 07-08-96, which period has also been treated as diesnon. The DPC also noted that Dr. Jain is again continuing on unauthorised absence from 20-11-99 till date. The DPC after assessing the his available ACRs for the periods from 1996-97, 97-98, 98-99 and l[1].4.99 to 16.12.199 and his conduct in remaining on unauthorized absence for long durations, assessed him as “Unfit for promotion as SMO on date and recommended accordingly.
10. The above recommendations of the DPC have been accepted by the competent Authority. Dr. Virendra Jain on his promotion as Senior Medical Officer will be furthered for promotion as Chief Medical Officer." Aggrieved by the said order, the present application has been filed.”
7. The Tribunal’s conclusion is in paragraph 8 onwards, which we reproduce as under:
8. Mr. Shankar Raju, learned counsel appearing for the petitioner has reiterated the submissions as made before the Tribunal with regard to both the claims; of promotion and back wages w.e.f April 1, 1992 to June 5, 1995. He has relied upon the judgments of the Supreme Court in the case of P. Sivanandi v. Rajeev Kumar and Ors. and P. Sivanandi v. State of Tamil Nadu & Ors., Civil Appeal Nos. 4822- 4826/2007 more specifically paragraph 19, which we reproduce as under:
9. In so far as the claim for promotion is concerned, it is a conceded position that the petitioner was appointed on October 7, 1987 as a Medical Officer-Class I (Junior Scale). On July 7, 1988, he was selected for a post in the Cabinet Secretariat and on October 22, 1988, he was placed under suspension. In that manner, the tenure of the petitioner was a very brief one.
10. It is the case of the respondent that the ACRs for the above period have not been recorded. In that sense, the very basis of his consideration for promotion was not available.
11. No doubt, a reference has been made to DoP&T circular dated June 20, 1989, wherein it is stated that „where one or more CRs have not been written for any reason during the relevant period, the DPC should consider the CRs of the years preceding the period in question and if in any case even these are not available, the DPC should take the CRs of the lower grade into account to complete the number of CRs‟, but as noted above, in the case of the petitioner, since no ACR was available, the DPC could not have assessed the petitioner for promotion as Senior Medical Officer. In fact, it is the case of the respondents that they, while considering the case of the petitioner, had looked into his conduct for the period between February 1, 1992 to June 5, 1995 which was treated as dies non and also the period between June 19, 1995 to August 7, 1996, when he remained absent and which period was also treated as dies non. In fact, the petitioner continued to be unauthorisedly absent from November 20, 1999 till May 23, 2022. The fact that the available ACRs are of the period 1996-97, 1997-98, 1998- 99 and April 1, 1999 to December 16, 1999 and he remained unauthorisedly absent on two occasions, which were treated as dies non, we are of the view that his non-promotion has some justification. In fact, we have been told that the petitioner has resigned from service in the year 2005. If that be so, surely, given the conduct which has been highlighted by the respondents, petitioner could not have been promoted as SMO, which entails higher responsibilities.
12. In so far as the plea of the petitioner for salary for the period February 1, 1992 to June 5, 1995 is concerned, it is a conceded position that the petitioner was acquitted by the criminal court on October 17,
1991. The order of revocation of suspension was passed on January 31,
1992. The issue before the Tribunal was as to whether the order dated January 31, 1992 has been received by the petitioner as it is noted that the petitioner joined back the service only on June 6, 1995. The plea of the petitioner is that, he did not receive the order dated January 31,
1992. It is only after the revocation order was sent once again on April 28, 1995, that the petitioner had joined the service back, on June 6,
1995.
13. The Tribunal did not accept the stand of the petitioner that, he did not receive the order dated January 31, 1992 by relying upon the provisions of Section 114 of the Evidence Act, 1872 read with Section 27 of the General Clauses Act, 1897 drawing presumption that the letter has been delivered to the addressee, particularly when the letter has not been received back undelivered. This reasoning of the Tribunal has some justification. Additionally, we are of the view, the petitioner having informed the respondents about his acquittal in the criminal case immediately thereafter, there was no reason for the petitioner not to approach the respondents to seek his reinstatement. No justifiable reason nor any document has been placed on record by the petitioner to show that he has been pursuing with the respondents on his reinstatement. In fact we find that the petition does not have any factual narration on the steps / action taken by the petitioner seeking his joining, between the period October 12, 1991 to April 28, 1995.
14. In the facts of this case, including the fact that the petitioner has resigned in the year 2005, we are of the view that the impugned order of the Tribunal needs no interference.
15. In so far as the judgment relied upon by Mr. Raju in the case of
V. KAMESWAR RAO, J
ANOOP KUMAR MENDIRATTA, J OCTOBER 11, 2023