MCD v. Hardayal Singh Meena & Ors.

Civil Engineering, or ten years of service for those with a diploma, are eligible for promotion to Executive Engineer (Civil).

8. Departmental Screening Committee (DSC) was held on 02.01.2020 to consider ad-hoc promotions to Executive Engineer

(Civil) from eligible Assistant Engineers (Civil). The Respondents were considered, and based on the DSC's recommendations and subsequent approval of the Competent Authority, the respondents, nos. 1, 3, 4 and 5 were granted ad-hoc promotion to the post of Executive Engineer (Civil) with effect from 01.02.2020, vide Office Order dated 03.01.2020. Further, respondent no.2 was subsequently granted ad-hoc promotion to the same post with effect from 01.08.2022.

9. In September 2022, the Competent Authority of the MCD accorded approval for holding a Review-cum-Regular Departmental Promotion Committee (Review DPC) for reviewing of the original DPCs pertaining to the vacancy years 2006-07 to 2008-09 and to hold regular DPCs for the subsequent vacancy years. It is the case of the petitioners that the decision to hold the Review DPC was taken on account of administrative deficiency noticed in earlier promotion exercises.

10. Pursuant thereto, a Review-cum-Regular DPC was held on 05.09.2023 under the chairmanship of the Additional Commissioner (Establishment). In its minutes, the DPC recorded that in the previous DPCs, the method of determining the zone of consideration had not been properly followed in accordance with the DoP&T Office Memorandums dated 22.04.1992 and 06.01.2006. The DPC accordingly recalculated the normal and extended zones of consideration vacancy-year-wise. For the vacancy year 2007-08, the Review DPC recorded that there were 99 vacancies, for which the normal zone of consideration extended up to Seniority No. 646 and the extended zone of consideration extended up to Seniority No. 970. As the Respondents were placed beyond Seniority No. 1000, the DPC concluded that they did not fall within the zone of consideration for that vacancy year. Upon consideration of subsequent vacancy years, particularly the year 2016-17, the Review DPC noted that the extended zone of consideration extended up to Seniority No. 1220. On that basis, Respondent Nos. 1, 3, 4 and 5 were found fit for promotion, while Respondent No.2 was found fit subject to currency of penalty.

11. Consequent upon the recommendations of the Review-cum- Regular DPC dated 05.09.2023 and approval of the Competent Authority, Office Order dated 06.10.2023 was issued, whereby the respondents were treated as having been promoted to the post of Assistant Engineer (Civil) prospectively with effect from 06.10.2023.

12. Aggrieved by the alteration of the effective date of their promotion, the Respondents approached the learned Tribunal by filing the above O.A., contending that their promotion granted in the year 2007 was in compliance with the Judgment dated 17.01.2007 passed by this Court and had attained finality over a period exceeding fifteen years.

13. The learned Tribunal, vide the Impugned Order allowed the O.A., quashed the Office Order dated 06.10.2023 to the extent it postponed the promotion of the Respondents, and declared that the Respondents shall be treated as promoted/posted to the post of Assistant Engineer (Civil) with effect from 16.07.2007.

14. Aggrieved by the said Impugned Order, the present petition has been preferred by the petitioner.

SUBMISSIONS OF THE LEARNED COUNSEL FOR THE PETITIONER

15. The learned counsel for the petitioner submits that the learned Tribunal committed a manifest error in law in allowing the O.A. without adverting to the core issue which formed the basis of the Review DPC held on 05.09.2023. He submits that the Tribunal failed to examine the legality of the earlier DPCs in the context of the prescribed method for determining the zone of consideration as mandated under the DoP&T Office Memorandums dated 22.04.1992 and 06.01.2006. He further submits that the Review DPC dated 05.09.2023 was convened strictly in accordance with the DoP&T guidelines which expressly permit review of an earlier DPC where grave procedural irregularities are noticed, including incorrect determination of the zone of consideration or consideration of ineligible officers. The learned counsel submits that the learned Tribunal failed to return any finding on the legality or otherwise of the Review DPC, despite the same having been specifically pleaded and supported by documentary material.

16. He places reliance on the Judgment of the Supreme Court in Union of India & Ors. v. B.S. Darjee & Anr., (2011) 10 SCC 186, to submit that an officer, though otherwise eligible, cannot claim promotion as a matter of right unless he falls within the zone of consideration. He submits that the respondents, admittedly placed beyond Seniority No. 1000, did not fall within the extended zone of consideration for the vacancy year 2007–08, which extended only up to Seniority No. 970.

17. The learned counsel for the petitioner submits that the learned Tribunal erred in holding that the promotion granted to the Respondents in the year 2007 was in compliance with the Judgment dated 17.01.2007 passed by this Court in W.P.(C) No. 18936/2006. He submits that the said judgment merely directed the Corporation to finalise the seniority list and consider the case of Respondent No.1 for promotion in accordance with law. No direction was issued for automatic or deemed promotion, and therefore the learned Tribunal’s finding to the contrary is erroneous.

18. He submits that the learned Tribunal exceeded the permissible limits of judicial review by substituting its own equitable considerations in place of statutory instructions governing promotions. He further submits that the learned Tribunal failed to appreciate that promotions, even when made against earlier vacancy years, take effect prospectively as per DoP&T Office Memorandum dated 10.04.1989, and therefore the direction to grant retrospective effect to the Respondents’ promotion is contrary to settled service law principles.

SUBMISSIONS OF THE LEARNED COUNSEL FOR THE RESPONDENTS

19. The learned counsel for the respondents submits that the promotion granted to the Respondents in the year 2007 had attained finality and could not be unsettled after a lapse of more than fifteen years. He further submits that the promotion granted in the year 2007 was in compliance with the Judgment dated 17.01.2007 passed by this Court, and any attempt to reopen or review the said promotion amounted to overreaching the judicial directions issued by this Court. He further submits that the Review DPC held in the year 2023 could not nullify the effect of a promotion which stood undisturbed for over a decade.

20. He submits that the respondents were promoted pursuant to a duly constituted Departmental Promotion Committee and that such promotion was granted after due consideration of their seniority, eligibility and service records. The learned counsel further submits that the promotion order dated 16.07.2007 was implemented and subsequently reiterated through multiple review DPCs, seniority lists and further promotions.

21. He also submits that the Office Order dated 06.10.2023 was issued without issuance of any show cause notice or affording an opportunity of hearing to the respondents, despite the order having serious civil and pecuniary consequences, including loss of seniority and impact on further promotional avenues. He submits that such is violative of the principles of natural justice.

22. The learned counsel places reliance on the Judgment of the Constitution Bench of the Supreme Court in Rabindra Nath Bose & Ors. v. Union of India & Ors., (1970) 1 SCC 84, to submit that longstanding promotions and settled service positions should not be unsettled after the lapse of several years, particularly where no fraud or misrepresentation is alleged against the employee concerned.

23. He further submits that the Respondents had continued to discharge duties as Assistant Engineers and thereafter as ad-hoc Executive Engineers for several years and were on the verge of being considered for the next higher post. The Impugned Office Order, by retrospectively altering the date of promotion, effectively demoted the respondents and caused grave prejudice to their service career.

24. He further submits that the learned Tribunal’s Order dated 14.01.2025 has already been implemented. A final seniority list has been issued in compliance with the learned Tribunal's directions on 19.02.2025, placing the respondents as Assistant Engineers (Civil) with effect from 16.07.2007.

ANALYSIS AND FINDINGS

25. We have considered the submissions made by the learned counsels for the parties.

26. The issue that arises for consideration is whether promotions granted in the year 2007 can be reviewed and set at naught after a lapse of 16 years on the ground of non-compliance with the zone of consideration, when such promotions have been implemented and the employees have since been promoted to higher posts.

27. Before we examine the issue at hand, it would be important to address the petitioner’s submission regarding the Judgment dated 17.01.2007 passed by this Court. The petitioner submits that the said Judgment did not direct automatic promotion but merely required consideration in accordance with law. We accept this submission. The Judgment at paragraph 6 held as under:

28. Pursuant to these directions, a DPC was duly convened on 14.06.2007 and the respondents were considered and promoted vide Office Order dated 16.07.2007. The petitioner cannot now, after a lapse of 16 years, claim that this consideration was not in accordance with law, particularly when no infirmity in the DPC proceedings or the eligibility of the respondents was pointed out at any point during the intervening period.

29. The record shows that the respondents were promoted vide Office Order dated 16.07.2007 and have served as Assistant Engineers

(Civil) for over 15 years. During this period, multiple review DPCs were held between 2011 and 2019, none of which disturbed their promotions. It is not in dispute that revised seniority lists were issued during this period, which consistently reflected their promotion. In 2020 and 2022, the respondents were granted promotions, on ad-hoc basis, to the post of Executive Engineer (Civil).

30. The petitioner’s submission that the review DPC dated 05.09.2023 was necessitated by "administrative reasons noticed in earlier promotion exercises" lacks merit. If the zone of consideration was not properly applied in the year 2007, this irregularity could have been and should have been rectified during the multiple review DPCs held between 2011 and 2019, or at the time of issuing revised seniority lists during the same period, or even while considering the respondents for ad-hoc promotion to the post of Executive Engineer in

2020. The submission that the irregularity was discovered only in the year 2023, that is, 16 years after the promotion has no substance. The respondents cannot be made to suffer for administrative lapses on the part of the petitioner.

31. The reliance placed by the respondents on the Judgment in Rabindra Nath Bose (supra) holds good, as no allegation of fraud, misrepresentation, or suppression of facts has been made against them, and there is no compelling reason to reopen their promotions. While the zone of consideration is an important principle in promotion matters, it cannot be applied mechanically to undo settled service positions after such a prolonged period. In Rabindra Nath Bose (supra), the Supreme Court explained the effect of delay as under:

equity, justice and good conscience. It would be unjust to, deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years. It was on this ground that this Court in Jaisinghani's case observed that the order in that case would not affect Class II officers who have been appointed permanently as Assistant Commissioners. In that case, the Court was only consideringthe challenge to appointments and promotions made after 1950. In this case, we are asked to consider the validity of appointments and promotions made during the periods of 1945 to 1950. If there was adequate reason in that case to leave out Class II officers, who had been appointed permanently Assistant Commissioners, there is much more reason in this case that the officers whoare now permanent Assistant commissioners of Income Tax and who were appointed and promoted to their original posts during 1945 to 1950 shall be left alone.”

32. The petitioner’s attempt to review the 2007 promotions seems to be belated and therefore, cannot be sustained.

33. The petitioner relies on B.S. Darjee (supra) to submit that an officer cannot claim promotion unless he falls within the zone of consideration. While the principle is well-settled, the case is clearly distinguishable. B.S. Darjee (supra) dealt with a direction to consider a candidate for promotion which had not yet been granted. The present case concerns cancellation of a promotion already granted and implemented for over fifteen years. The question is not whether the respondents were entitled to consideration in 2007, but whether their promotion can now be undone on the ground that the zone of consideration was incorrectly determined.

34. Moreover, it is significant to note that the Office Order dated 06.10.2023 was issued without affording any opportunity of hearing to the respondents. The failure to issue a show cause notice or afford a hearing before passing the Impugned Order is a serious procedural infirmity that further undermines the petitioner's case.

35. We also note that the learned Tribunal’s Order dated 14.01.2025 has already been implemented. A final seniority list has been issued in compliance with the learned Tribunal's directions on 19.02.2025, placing the respondents as Assistant Engineers (Civil) with effect from 16.07.2007.

CONCLUSION

36. Therefore, in view of the above discussion and for the reasons stated hereinabove, we find no infirmity or illegality in the Impugned Order passed by the learned Tribunal. The petition is accordingly dismissed. The pending applications are disposed of.

37. There shall be no order as to costs.

MADHU JAIN, J. NAVIN CHAWLA, J. JANUARY 14, 2026