Sudhir Kumar, Member (A):
1. The applicant of this OA is an officer of Delhi and Andaman Nicobar Islands Civil Service (DANICS, in short), who is before us with the following prayers:-
(a) direct the respondents to consider and promote the applicant on adhoc basis to the excadre post equivalent of DANICS w.e.f. 19.10.2011 and if in the event he is not found fit on the said date, then w.e.f. 14.11.2012 with all consequential benefits and grant all benefits consequent thereto to the applicant as being given to his juniors consequent to their promotion vide order dated 19.10.2011 or 14.11.2012 (as the case may be).
(b) award costs of the proceedings and
(c) pass any other order/direction which this Honble Tribunal deem fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case.
2. The applicant was initially appointed as Grade-II/Delhi Administration Subordinate Services (DASS, in short) on 14.08.1986. He was promoted to DASS Grade-I on 28.03.1995. While being posted at the Directorate of Education in the Government of NCT of Delhi in the year 2006, the applicant was proceeded against departmentally for his previous misconduct relating to discharge of his official functions as Consolidation Officer/Tehsildar in the year 2004 through the Charge Sheet annexed by him to this OA as Annexure A/1, which is not the subject matter of the lis before us.
3. Upon conclusion of the departmental enquiry, a major penalty was imposed upon the applicant of reduction to lower post of Grade II/DASS with immediate effect, and until he was found fit once again to be restored to the higher post of Grade I of DASS through the penalty order dated 18.05.2009, which is also not the subject matter of the lis before us.
4. Aggrieved, the applicant had filed an appeal before the Appellate Authority, i.e. Lt. Governor of Delhi, who accepted the appeal in part, and reduced his aforesaid penalty to reduction in time scale of pay by two stages for a period of two years, with further direction that during the currency of that penalty the applicant shall not earn his increments of pay, and after expiry of this period, the reduction of his pay will have the effect of postponing his future increments of pay through Annexure A-3 dated 09.09.2010, which is also not the subject matter of the lis before us.
5. The grievance of the applicant in respect of which the present OA has been filed arises from the events that followed during the pendency of the disciplinary proceedings, when the applicants case was included among the cases considered by the respondents for ad hoc promotion to the ex-cadre posts of DANICS by a Screening Committee constituted by the Govt. of NCT of Delhi in the year 2006 itself. Due to pendency of the charge sheet, he was not promoted, and sealed cover procedure was adopted in his case, while his batch-mates, even those junior to him in the Batch, were so promoted. Later, during the currency of the penalty period, many juniors of the applicant were once again promoted to the ex-cadre posts equivalent to DANICS by the respondents vide an order dated 14.11.2012. The applicants grievance is that his case has not been considered, and that he has been wrongly and illegally left out of such consideration. His contention is that the order of penalty of reduction to lower post passed through Annexure A-2 dated 18.05.2009 ultimately merged in the Appellate Authoritys order dated 09.09.2010 (Annexure A-3), and the effect of that merger is that the penalty of reduction in rank had got modified, as if it had never existed. The applicant has, therefore, submitted that it was incumbent upon the respondents to consider the case of the applicant for promotion in all DPC meetings convened by them subsequent to the infliction of penalty upon him, and since the original penalty of reduction in rank stood modified to a penalty of reduction of pay by two stages for a period of two years, the case of the applicant should have been considered for promotion at least two years after May, 2009, i.e. in 2011, when the currency of penalty was over.
6. The grievance of the applicant is that many officers of Grade-I (DASS) have been on ad hoc and emergent basis promoted against ex-cadre posts of DANICS, carrying higher responsibilities, for a period of six months, or till further orders, or till the posts are filled up on regular basis, through orders dated 19.10.2011 and 14.11.2012 produced by him as Annexure A-5/Colly (from pages 26 to 41 of his OA).
Through Annexure A-6, which is an extract of Govt. of India, DoPandT O.M. dated 23.02.1999, the applicant has contended that the criteria for grant of ad hoc promotion also is the same as that for grant of regular promotion, because the Govt. of India has, through this OM, decided that the Sealed Cover Procedure prescribed through OM dated 14.09.1992 may be followed at the time of ad hoc promotions also. The case of the applicant is that the department imposed upon him penalty of reduction in the time scale of pay by two stages for a period of two years along with consequential effect was over when his next date of increment fell due on 01.07.2011, and, therefore, the case of the applicant was required to be considered by the respondents when they considered the ad hoc and emergent basis promotions from Grade-I(DASS) to ex-cadre posts of DANICS through Annexure A-5/colly. In making out his claim, the applicant has relied upon the judgments pronounced by this Tribunal in various OAs, including OA Nos.3898/2011, 3986/2011, 4054/2011, 390/2012, 496/2012, 497/2012, and the OA No.3974/2012 with OA No.3976/2012, which were allowed on 27.11.2012. He has also cited that in another case in CWP No.4322/2012, the order of this Tribunal was challenged by the respondents before the Honble Delhi High Court, but the CWP was dismissed vide order dated 03.09.2012 (Annexure A/10).
In the result, the applicant has claimed that he is eligible and entitled for consideration for promotion because his juniors have been promoted while he has been left out wrongly, and since the currency of penalty upon him had expired before the date of his next increment, which fell in his case on 01.07.2011, his case ought to have been considered for promotion in the DPCs held in the years 2011 and 2012. His case is that he cannot be ignored for grant of all such benefits for which his juniors have been considered, and bestowed those benefits when they were given ad hoc promotions on the basis of length of service, and, therefore, he has claimed discrimination in the matter of promotion.
9. In their counter reply filed on 08.03.2013, the respondents denied any wrong doing. In saying so, they had cited the order of this Tribunal in OA No.646/2012 Ravinder Pal Singh Vs. Govt. of NCT of Delhi, in which in Para-10 of the judgment and order, the concurrent Bench that day had held as follows:-
10. It is trite law that an ad-hoc promotion against an ex-cadre post does not give rise to any right of seniority to anybody, and just because of having officiated an on ad-hoc and emergent basis against any ex-Cadre posts in DANICS, his juniors will not become seniors to him, as per the settled case law in this regard. In fact, as has been held by the Honble Apex Court in the case Chief of Naval Staff and anr. vs. G.Gopalakrishna Pillai and Ors., (1996) 1 SCC 521, even an ad-hoc appointment within ones own Cadre itself, against a senior post, without selection by a regularly constituted selection body, even though it may have been uninterruptedly followed by regularization in the same post, does not count towards seniority against that higher post.
(Emphasis supplied)
10. The respondents have further relied upon the Honble Apex Court judgment in State Bank of India and Ors. vs. Mohd. Mynuddin 1987 (4) SCC 486 in which it was held as follows:-
œ5. Whenever promotion to a higher post is to be made on the basis of merit no officer can claim promotion to the higher post as a matter of right by virtue of seniority alone with effect from the date on which his juniors are promoted. It is not sufficient that in his confidential reports it is recorded that his services are 'satisfactory'. An officer may be capable of discharging the duties of the post held by him satisfactorily but he may not be fit for the higher post. Before any such promotion can be effected it is the duty of the management to consider the case of the officer concerned on the basis of the relevant materials. If promotion has been denied arbitrarily or without any reason ordinarily the Court can issue a direction to the management to consider the case of the officer concerned for promotion but it cannot issue a direction to promote the officer concerned to the higher post without giving an opportunity to the management to consider the question of promotion. There is good reason for taking this view. The Court is not by its very nature competent to appreciate the abilities, qualities or attributes necessary for the task, office or duty of every kind of post in the modern world and it would be hazardous for it to undertake the responsibility of assessing whether a person is fit for being promoted to a higher post which is to be filled up by selection.?
11. They had also cited the cases of Indian Airlines Corporation vs. K.C. Shukla 1993 (1) SCC 17 and State of Madhya Pradesh vs. Srikant Chaphekar 1992 (5) SLR 635. The respondents had also relied upon the Honble Apex Court judgment in Bishan Sarup Gupta etc. vs. Union of India and Others AIR 1974 SC 1618, in which in Paragraph-17 it has been held as follows:-
œ17. When considering this point it must be clearly understood that this court is not concerned with Govt.'s policy in recruiting officers to any service. Government runs the service and it is presumed that it knows what is best in the public interest. Government knows the caliber of candidates available and it is for the Government to determine how a particular service is to be manned - whether by direct recruits or by promotees or by both and, if by both, what should be the ratio between the two sources having regard to the age factor, experience and other exigencies of service. Commissions and Committees appointed by the Government may indeed give useful advice but ultimately it is for the Government to decide for itself. In the particular service with which we are concerned, viz. that of class I Income-tax Offices, Government had known for many years that there was a lot of discontent amongst the officers. The promotees were clamoring for a higher proportion of posts in the cadre while the direct recruits were chafing against the seniority rule which gave promotees 2 to 3 years' seniority over the direct recruits. To begin with, the promotees had been given only 20% of the vacancies but that was raised later on to 33 1/3%. The department was fast expanding and more officers in class I who could immediately take up assessment work were required. Senior Class II officers who had the necessary experience were always available. On the other hand, class I officers, directly recruited, did not obtain this experience for about 2 to 3 years. Therefore, though direct recruitment was made from year to year, the department had to promote more officers from class II to class I and this was the reason why there was a spill over of 73 promotees officers on 16-1-1959. In the course of next 3 years 214 promotees had to be appointed after upgrading a similar number of posts. Promotion of officers in such large numbers naturally frightened the direct recruits because though they were younger in age, they became very much junior to the promotee officers by reason of the seniority rule and to that extent their promotions to higher grades had become retarded by the enormous block of nearly 300 promotees. The discontent amongst the direct recruits had been noted by the Government even as far back as 1937 and the Government's anxiety in this respect is reflected in the letter No. 24/2/60 Ad. VI dt. 17-2-1960 to the Union Public Service Commission. In order to allay the discontent in the service and having regard to the expansion of the department, Government suggested that the quota for the promotees should be raised from 33 1/3% to 50% on the one hand, and weightage given to them under the old seniority rule should be removed, on the other. That letter gives a clear indication of the thinking of the Ministry in this respect. But unfortunately the suggestion was not accepted by the U.P.S.C. then and the whole problem was allowed to drift?.
12. It was submitted that it has been held by the Honble Apex Court in Syed Khalid Rizvi vs. Union of India 1993 Supp3 SCC 575 that a Government employee has a right for consideration for promotion but not for promotion. They had further submitted that it was not that the applicant was forever left out for consideration for promotion from Grade-I (DASS) against the ex-cadre posts of DANICS on ad hoc and emergent basis, carrying higher duties and responsibilities, and that the department had informed that the cases of all such left out candidates were being considered. In respect of the applicants particular case, it was pointed out that while in the disciplinary proceedings against him, the Appellate Authority, the Lt. Governor, has reduced the penalty imposed upon him, but the case in FIR No.58/06 u/s 13(1)(d) read with 120 B IPC which was registered against him by the Anti Corruption Branch is still pending investigation, and that in another case, disciplinary proceedings under Rule-14 are going to be initiated against him. However, it was admitted that no charge sheet has so far been framed against the applicant in the said FIR. They had, therefore, justified having not considered the case of the applicant for promotion and appointment against the ex-cadre post of DANICS on ad hoc and emergent basis, due to non clearance from Vigilance angle even in the years 2011 and 2012.
13. It was further submitted that there is no provision for following Sealed Cover Procedure while considering appointment to ex-cadre posts on ad hoc basis, as the sealed cover procedure has been prescribed to be followed in the case of regular promotions only, and regular promotions to the designated posts of DANICS Cadre are done by the Govt. of India, Ministry of Home Affairs, and not by the Govt. of NCT of Delhi, which is the party respondent in this OA. It was submitted that the respondents 1 and 2 only appoint the officers from the feeder line to the ex-cadre posts of DANICS, as an internal arrangement, purely on ad hoc and emergent basis, which practice is resorted to on grounds of administrative expediency, in order to avoid dislocation of work in the Government, due to shortage of entry level officers of DANICS Cadre provided to Delhi Government by the Ministry of Home Affairs, Govt. of India. It was submitted that there are a large number of vacant ex-cadre posts carrying duties and responsibilities similar to that discharged by the entry grade of DANICS Cadre in different Departments under Govt. of NCT of Delhi, and keeping them vacant would mean slowing down the efficiency and performance by those Departments. It was, therefore, submitted that there was nothing wrong in the action of the respondents in not having considered the case of the applicant for appointment to such ex-cadre posts of DANICS on ad hoc basis, while the process to consider appointment of such left out Grade-I (DASS) officers has already been initiated and continued, and the ACRs folders, and the work, conduct and integrity certificate and Vigilance reports in respect of the officers have also already been called for.
14. It was reiterated by the respondents that it was only on account of pendency of the criminal case FIR No.58/06 that while passing the impugned order dated 05.10.2012, the applicant had been left out from appointment against any of the ex-cadre posts of DANICS even on ad hoc and emergent basis, since such appointments carrying higher duties and responsibilities, and the requisite documents, ACRs, and Vigilance Clearances had not been received in the case of the applicant. The respondents had, therefore, pleaded that the applicant has no cause of action, or even a prima-facie case, to seek any relief from this Tribunal, and had prayed for the OA to be dismissed with costs.
15. The applicant did not file any rejoinder, and the case was argued on merits in great detail.
16. The fact remains that the applicant in this case is not seeking any substantive promotion, and parity with his colleagues and juniors in consideration of his case for any substantive promotions. He is only aggrieved by his case not having been considered for ad hoc and emergent basis promotions, which adhoc and emergent basis promotions have been granted to many of his colleagues and juniors, against certain posts, which are named as ex-cadre posts equivalent to the DANICS entry level posts. Learned counsel for the applicant strenuously argued that this amounts to a gross discrimination against the applicant. He submitted that the expansion of the administrative set up in the Govt. of NCT of Delhi has been sudden and vast, and the number of Cadre posts of DANICS entry level created, and sanctioned by the Ministry of Home Affairs, Govt. of India, has not kept pace with the expansion in requirement of equivalent level of officers. For example, if the requirements of the Govt. of NCT of Delhi of posts carrying higher responsibilities and scale of pay equivalent to the DANICS Cadre entry level posts may be taken as 300 or 400, the Ministry of Home Affairs, Govt. of India, has sanctioned say only 100 DANICS Cadre entry level posts. Therefore, he explained that in order to man the posts concerned, the respondent-Govt. of NCT of Delhi declares all the other such remaining posts to be ex-cadre DANICS posts, even though they have got nothing to do with the sanctioned DANICS Cadre posts, and then the GNCTD makes ad hoc promotions for such so-called ex-cadre DANICS posts on an emergent and ad hoc basis, through orders such as Annexure-5/Colly. He conceded that though this may not amount to the conferment of DANICS Cadre service upon the incumbents so promoted on ad hoc basis by virtue of the nomenclature of these posts being called as ex-cadre DANICS posts, but by virtue of their carrying higher pay scale and higher responsibilities, these posts are later on converted into the regular DANICS Cadre posts, against which recruitment, selection and posting is done by the Ministry of Home Affairs, Govt. of India,, which is not a respondent before this Tribunal in this OA. Since even such ad hoc and emergent basis promotions carry higher perquisites, and eligibility for better housing accommodation, as compared to DASS Grade-I service officers, the learned counsel for the applicant vehemently argued that the applicant having been left out from consideration for even such ex-cadre DANICS posts amounts to a gross discrimination against the applicant. He had further pointed out that the orders in OA No. 3898/2011 dated 30.11.2011 had stated in Paragraph-4 of the order as follows:-
œ4. In view of the above position, this OA is allowed. Consequently, respondents are direct to immediately consider the applicant for promotion to the ex cadre post of DANICS on ad hoc and emergent basis. If the applicant is otherwise qualified, they shall issue order of promotion to him notionally with effect from the date his junior has been promoted, with all consequential benefits except arrears of pay and allowances. The aforesaid directions shall be complied with, within a period of two months from the date of receipt of a copy of this order failing which they will be liable to pay him the pay and allowances attached to the ex cadre post of DANICS from the expiry of the aforesaid period. There shall be no order as to costs.
17. He had further pointed out that in OA No.3986/2011, in orders dated 13.12.2011, in similar facts, the following orders had been passed:-
œ5. In view of the above position, this OA is allowed. The respondents shall re-consider the case of the applicant for promotion to DANICS and he shall be promoted accordingly, if he is found otherwise suitable. In that case he shall be given promotion along with the officials who have already been promoted vide the impugned order No.467 dated 19.10.2011 with all consequential benefits except backwages. As the appointment itself is on emergent and ad hoc basis and it is initially for a period of six months, the respondents shall ensure that the aforesaid direction shall be complied with, within a period on one month from the date of receipt of a copy of this order. There shall be no order as to costs.
18. Similarly, he had pointed out that the orders in OA No. 4054/2011 dated 13.12.2011 also, similar orders have been passed vide Paras 6 and 7 of that order, in respect of appointment to ex-cadre posts of DANICS on ad hoc basis, which states as follows:-
œ6. We have also perused the minutes of the aforesaid Screening Committee dated 28.9.2011. The said Committee on the basis of Matrix Statements/Evaluation Sheets reflecting gradations of ACRs, Integrity and Vigilance Status, selected/recommended 107 officers (78 General, 29 SC) for appointment to ex-cadre posts on ad-hoc basis as per their names in the Seniority giving due representation to SC candidates (Annexure œX?). The recommendations in respect of 06 candidates have been subject to availability of IC/Clearance from ACB (Annexure œY?). The Screening Committee could not make recommendation in respect of 73 feeder category officers (Annexure œZ?) who have either retired/not clear from vigilance/non-availability of IC/VC/ACRs. The applicant is included in the aforesaid list of 73 feeder category officers with the remarks that œnot clear from vigilance angle?. No specific reasons have been given by the respondents as to how and why the applicant was not free from vigilance angle. The only reason given by them in the reply to this OA is that he has imposed with the penalty of censure vide Memo dated 18.8.2011. However, there is no explanation to the effect that the aforesaid penalty of censure was actually considered by the Screening Committee while assessing his suitability for promotion.
7. We, therefore, dispose of this OA with the directions to the respondent No.2 to re-convene the Screening Committee to take a considered view in the matter in terms of the Department of Personnel and Trainings letter dated 9.3.2000 as clarified by the said Department?s OM No.22011/2/78-Estt.(A) dated 16.2.1979 and to convey its decision of to the applicant. The aforesaid directions shall be complied with immediately but in any case within one month from the date of receipt of a copy of this order. There shall be no order as to costs?.
19. He had also pointed out that in OA No.390/2012 decided with OA No.496/2012 and OA No.497/2012, in which orders were pronounced on 11.04.2012, the Bench had, in respect of the same impugned orders, given the following directions:-
œ8. We, therefore, allow these OAs and direct the respondents to re-consider the case of the applicants for promotion to DANICS and they shall be promoted accordingly, if they are found otherwise suitable. In that case, they shall be given promotion along with the officials who have already been promoted vide the impugned order No.467 dated 19.10.2011 with all consequential benefits except backwages. As the appointment itself is on emergent and on ad hoc basis and it is initially for a period of six months, the respondents shall ensure that the aforesaid direction shall be complied with immediately but in any case within a period of one month from the date of receipt of a copy of this order. There shall be no order as to costs.?
(Emphasis supplied)
20. He also pointed out that the orders in OA No.3974/2012 with OA No. 3976/2012 pronounced on 27.11.2012 had also issued the following directions through Paras 4 and 5 of the order as follows:-
œ4. In view of the above position, we dispose of this OA with the direction to the respondents to consider the applicants for promotion and to promote them to the ex-cadre post of DANICS, if there are no valid reasons for not doing so. In case, they are found eligible for promotion as in the case of their seniors and juniors who have since been promoted and they have not been promoted by mistake, they shall also be promoted from the date their immediate junior has been promoted with all consequential benefits except back wages, within 15 days from the date of receipt of a copy of this order. In case, the applicants have been found not eligible for promotion, they shall be informed of the reasons, within the aforesaid period of time. However, on reconsideration, if they are found eligible for promotion and they have not been promoted on account of any mistake or for any reasons not attributable to them, and still they are not promoted within the aforesaid period, they will be entitled for payment of salary of the promotional post from the date of expiry of 15 days as stated above.
5. With the aforesaid directions, these OAs are disposed of. There shall be no order as to costs.
DASTI.
21. The learned counsel for the applicant had also relied upon the Honble Delhi High Court judgment pronounced on 03.09.2012 in W.P. (C ) No.4322/2012 Government of NCT of Delhi and ors. vs. Anil Kaushal, but it appears that the judgment in that case was not fully on all fours with the instant case. However, the facts of the instant case were on all fours with the case in OA No.646/2012, in which the orders of this Tribunal were pronounced on 26.09.2012 as reproduced in Para/9 above.
22. It is noticed that the same Bench, speaking through two different Members, has in OA No.390/2012 with OA No.496/2012 and OA No.497/2012 held on 11.04.2012 as reproduced in Para-19/above, and speaking through another Member, in which one of us was a Member in OA No.646/2012 held on 26.09.2012 differently, as reproduced in Para-9/ above. Therefore, the issue is as to which these two judgments lays down the correct proposition of law, because when the 2nd order dated 26.09.2012 was passed in OA No.646/2012, the earlier order dated 11.04.2012 in OA No.390/2012 with OA No.496/2012 and OA No.497/2012 was not noticed, as also the orders in the other OAs as mentioned in Para 20/above were also neither mentioned nor noticed.
23. The issue, therefore, remains as to whether any such appointments of Grade-I DASS officers, which are clearly stated to be on adhoc and emergent basis against DANICS ex-Cadre posts, which posts have been suo-moto declared by the Govt. of NCT of Delhi, without any approval from the Ministry of Home Affairs, the Cadre Controlling Authority of DANICS Cadre, to be equivalent to DANICS Cadre posts, since they are supposedly carrying higher responsibilities, and fetch some perquisites, and that such ad hoc and emergent promotions being ordered for six months, or till further orders, or till the posts are filled up on regular basis, actually amounts to an order of promotion or not, and as to whether the judgment and order dated 11.04.2012 was the correct law, or the judgment dated 26.09.2012 laid down the correct law, is the issue to be decided.
24. The matter may, therefore, be placed before the Honble Chairman on administrative side for consideration of constitution of a Larger Bench to consider this matter.