ORDER N.D. Dayal, Member (A)
1. The applicant herein is working as Delhi Administration Subordinate Services (DASS) Grade-I officer. His name appears at Sl. No. 1585 in the seniority list as on 1.1.1990. It is explained that between DASS Grade-I officers and regular Delhi, Andaman & Nicobar Island Civil Service (DANICS) officercreated termed as Ex-Cadre DANICSs a tier of officers has been (ad hoc). They are considered from DASS Grade-I by a screening committee on the basis of seniority-cum-fitness and perform higher duties and responsibilities. They supervise DASS Grade-I officers and write their ACRs. According to the applicant these appointments are continued for five-six years or more till induction by promotion in DANICS on regular basis with retrospective effect. It is submitted that the cadre of DANICS officers is controlled by the Ministry of Home Affairs (MHA) whereas placement on ex-cadre posts of DANICS on ad hoc basis is made by the Government of NCT of Delhi under orders of the Lieutenant Governor of NCT of Delhi. According to the applicant, he has an unblemished service record as there are no adverse remarks in his ACRs nor any disciplinary proceeding against him till date. Besides, he satisfies the criteria even for regular promotion to DANICS. He was granted second financial upgradation under the ACP Scheme by order of the MHA dated 8.8.2005. When the DPC was constituted for considering appointment to the posts of ex-cadre DANICS from amongst the seniormost DASS Grade-I officers on ad hoc basis, to the best of the applicant's knowledge, he was recommended but to his surprise, he found that his name did not figure in the impugned order dated 16.8.2005 whereby several juniors to him from Sl. No. 17 to 67 were promoted to the ex-cadre posts of DANICS on ad hoc basis. Later on even more juniors were so appointed on ad hoc basis but the applicant's case continued to be ignored.
2. Further, it is revealed by the applicant that he was issued a memo dated 7.12.2004 by Joint Director (Employment) seeking explanation regarding irregularity in respect of sponsoring of candidates for the post of Lab Technician to which he had replied on 15.12.2004, after which there was no communication and evidently, it was only a routine matter because no chargesheet was issued to him. Since he had already been given the benefit of ACP Scheme on 8.8.2005, no adverse inference had been drawn against him in that matter.
3. The applicant relies upon the judgments of the Hon'ble Supreme Court in Union of India v K. V. Jankiraman and Delhi Jal Board v Mahinder Singh , according to which if no chargesheet was pending at the time of DPC, sealed cover procedure could not be resorted to and in case the panel was operated and juniors promoted by which time also no chargesheet was issued, then also entitlement to promotion could not be denied by resorting to sealed cover procedure. The applicant had made a representation but submits that he had got no reply. He contends that the issue involved in his case has been discussed in S. P. Banwait v Union of India and Ors. (OA No. 1808/2003 decided on 8.3.2004), a copy of which has been enclosed with the OA. In this background the applicant has alleged that the action of the respondents is mala fide, arbitrary and unjust in not promoting/appointing him to the post of ex-cadre DANICS on ad hoc basis and sought the following relief:
1. Issue necessary writ/writs/directions in the nature of mandamus and direct the respondents to promote/appoint the applicant to the post of Ex-Cadre DANICS w.e.f. the dates his juniors have been promoted with further directions to restore all consequential benefits including seniority etc., in the post of Ex-Cadre Delhi, Andaman & Nicobar Island Services also to his further promotion/induction in the Delhi, Andaman & Nicobar Island Services on regular basis and;
2. Award cost in favour of the applicant;
3. Any other or further order or orders which this Hon'ble Tribunal deems fit and proper may also be passed.
4. In their counter reply, the respondents have opposed the prayer of the applicant. At the outset, they have relied upon Bishan Sarup Gupta v Union of India . Further, it is submitted that an employee has no right and can only claim consideration for promotion. It is clarified that ad hoc promotion will not give any benefit to the applicant in seniority since DASS Grade-I seniority is relevant for promotion by MHA to Grade-II DANICS on regular basis. It is submitted that the appointment on ex-cadre post of DANICS on ad hoc basis is an internal arrangement of the Government of NCT of Delhi purely on ad hoc and emergent basis to carry out the functions of administration. These are not duty posts of DANICS cadre. The promotion by MHA to Grade-II of DANICS has no relation with ad hoc appointment by the Government of NCT of Delhi on ex-cadre posts of DANICS. At the time when the DPC recommended the applicant's case for appointment to the ex-cadre post of DANICS on ad hoc basis, a disciplinary proceeding was being contemplated against him and chargesheet dated 15.12.2005 was issued by the Government of NCT of Delhi against him on the charge that while working as Assistant Employment Officer, District Employment Exchange (North-East) in 2004, he had in connivance with others sponsored the names of only BSc. Registrants for the post of Laboratory Technician directly to AIIMS on his own without routing the lists to DEE (New Delhi), which being the vacancy Exchange, could have sent the names of eligible candidates, possessing the alternative qualifications. This resulted in depriving the eligible candidates from availing the opportunity. He was, therefore, charged with having failed to maintain absolute integrity and devotion to duty and acting in a manner unbecoming of a Government servant in violation of the provisions of Rule 3 of the CCS (Conduct) Rules, 1964. An enquiry has also been ordered in the matter.
5. The respondents submit that upon receipt of the recommendations of the DPC, as disciplinary proceeding was contemplated against the applicant, a review of the applicant's case had been ordered, but in the meanwhile the above chargesheet was issued and his case could not be considered. Ad hoc promotion is also adopted in public interest and the conduct of the applicant did not convince the competent authority for appointing him to the ex-cadre post of DANICS. However, non-promotion on ad hoc basis extends to him neither any benefit nor disadvantage in respect of seniority and prospects for promotion to Grade-II of DANICS. It is pointed out that the cases of K.V. Jankiraman and Delhi Jal Board (supra) are in the context of regular promotion, whereas the case of the applicant is confined to promotion on ad hoc basis only. As such, these judgments are not relevant to his case. The grant of benefit under ACP Scheme is not comparable with such ad hoc appointment and the grievance of the applicant is, therefore, not tenable. Further, the MHA has not been impleaded as party in the present case even though they are concerned with the promotion to Grade-II of DANICS which has been sought as part of the relief by the applicant by way of further promotion on regular basis. Thus, the OA is liable to be dismissed on the ground of non-joinder of necessary party.
6. In his rejoinder the applicant submits that he is posted as Assistant Employment Officer at Employment Exchange, Delhi University at present. He has pointed out that no chargesheet nor any criminal proceedings etc. were pending against him on the date of DPC nor when his juniors were promoted. The applicant has annexed copy of DOP&T OM dated 23.2.1999 according to which sealed cover procedure is required to be followed at the time of consideration for ad hoc promotion also in the case of Government servants - (i) who are under suspension; (ii) in respect of whom a chargesheet has been issued and the disciplinary proceedings are pending; and (iii) in respect of whom prosecution for a criminal charge is pending. The applicant contends that where none of these three situations has arisen, a simple vigilance clearance is required to be furnished and this would not be a factor in deciding the fitness of the officer for promotion on merit. A view has been expressed that no promotion can be withheld on the basis of suspicion or doubt or preliminary investigation which appears to have been drawn from DOP&T OM dated 25.10.2004 which is, however, relating to regular promotion. The applicant submits that reliance on subsequent chargesheet dated 15.12.2005 is, therefore, illegal not only in terms of the judgments of K.V. Jankiraman (supra) and Delhi Jal Board (supra) but also S.P. Banwait (supra). Also this OA was filed on 17.10.2005 and even by that date, there was no chargesheet against the applicant. In the case of S. R. Harit v Government of NCT of Delhi and Ors. the applicant was promoted to ex-cadre post of DANICS on ad hoc basis with the consequential benefits from the date of his immediate junior, following the directions of this Tribunal dated 13.8.2004 in OA No. 434/2004. However, there is no citation indicated or copy enclosed, nor the facts of the case have been described so that the context in which the Tribunal's order was pronounced could be appreciated. Two senior colleagues of the applicant Shri S. C. Tyagi and Shri Babu Lal, both working as Employment Officer, are stated to have been promoted on regular basis to the post of DANICS vide orders dated 7.10.2004. Subsequently, three of his juniors whose promotions were also withheld along with the applicant are said to have been promoted on 28.3.2006 but the applicant has been left out and as such, he has been subjected to hostile discrimination. Relying upon further citations, the applicant has asserted that the right to be considered for promotion under Article 16 of the Constitution is a Fundamental Right and the consideration has to be on a fair basis without discrimination. So also in the cases of ad hoc promotion. Since the ex-cadre DANICS posts were created by the Government of NCT of Delhi who are also the appointing authority, non-impleadment of MHA cannot be held against the applicant. There was no departmental enquiry against the applicant which can be said to have been initiated only when a chargesheet is issued. Even ad hoc promotion brings social status and upgradation in the eyes of others and the authority of supervision over DASS Grade-I and to write their ACRs. Such benefit has, therefore, been denied.
7. We have heard the learned Counsel for both parties and perused the pleadings. The respondents have produced original records from the Directorate of Vigilance which have also been gone through. The applicant has submitted written arguments as per Court directions. The counsel for the applicant vehemently put across the detailed grounds taken in the application to contend that the applicant was wrongly denied ad hoc promotion despite recommendations of the DPC at a time when there was nothing against him and in fact, in terms of the ACP Scheme, he had been granted second financial upgradation. It was only the authority who was to accept the DPC recommendations, which intervened to ask for a review DPC and in the meanwhile chargesheet was issued against the applicant on 15.12.2005. The case of the applicant was required to be dealt with in accordance with the DOP&T instructions dated 23.2.1999 and his name placed in the sealed cover, if any of the three situations had arisen against him. However, merely on the basis of contemplation of disciplinary action the recommendation of the DPC in favour of the applicant was stalled. On the other hand, the main ground put across by the counsel for the respondents was that the requirement of sealed cover was not applicable in the case of the applicant and there is a distinction between the process to be followed for regular promotion and that to be followed for ad hoc promotion. The latter cannot be granted without vigilance clearance and the same was not available in the applicant's case. Even if the applicant were to be given ad hoc promotion, he would stand reverted on 15.12.2005 when the chargesheet was issued against him in terms of the rules.
8. It needs no emphasis that regular appointment has to be based on the statutory recruitment criteria. It is distinct from ad hoc appointment which does not normally extend beyond six months/one year. An ad hoc appointment may even be terminated prematurely on justifiable grounds. The orders of 16.8.2005 and 13.10.2005 show that a number of officers of DASS Grade-I were appointed against ex-cadre posts of DANICS with higher responsibilities but purely on ad hoc and emergent basis for a period of six months or till further orders or till the posts were filled on regular basis, whichever is earlier. The officers were not entitled to any benefit with reference to seniority or regular appointment and would be liable to be reverted at any time without assigning any reason. There is nothing on record to show that ad hoc appointment against ex-cadre post of DANICS would have conferred any right for extension of the same till regular promotion of the incumbent to DANICS Grade-II.
9. It is the applicant's submission that a screening committee considers the officers of DASS Grade-I on the basis of seniority-cum-fitness for ex cadre DANICS (ad hoc) and thereafter the officers in ex cadre DANICS not only perform higher duties and responsibilities but also supervise DASS Grade-I officers and write their ACRs. It is noticed from the conditions laid down in Chapter 6 relating to ad hoc promotions in Swamy's Compilation on Seniority and Promotion in Central Government Service (8th Edition - 2001) that where ad hoc appointment is by promotion of the officer in feeder grade, it may be done on the basis of seniority-cum-fitness even where promotion is by selection method only after proper screening by the appointing authority of the records of the officer. It would, therefore, appear that a screening of the records carries its own importance in a case of ad hoc promotion.
10. Para 11.1 under Chapter 3 relating to Departmental Promotion Committees at pages 92-93 in Swamy's Compilation referred to above specifies the three conditions to be satisfied so as to follow sealed cover procedure in the case of promotion on regular basis. In case of ad hoc promotion also, as submitted by the applicant, the same three conditions have been laid down on page 93 immediately thereafter, as per DOP&T OM dated 23.2.1999. However, in the applicant's case, these conditions admittedly did not exist and as such the sealed cover procedure was not attracted. The applicant has submitted that where none of these three situations have arisen, vigilance clearance is needed but would not be relevant for promotion on merit. It could be nobody's case that ad hoc promotion is to be accorded without merit.
11. The procedure for consideration of recommendations of DPC on which UPSC is not represented as laid down in para 16.4.3(a) under Part-V of Chapter 54 of Swamy's Manual on Establishment and Administration (2003 edition) envisages that on disagreement the matter should be referred to DPC with reasons for reconsideration and upon getting response the recommendations may be accepted if they are convincing and if not convincing, the next higher authority is to take a decision thereon. There is no material to which our attention has been drawn whereby, in the facts of the present case, the accepting authority, in the case of DPC recommendations for promotion on purely ad hoc basis for a limited period of time, can justifiably take a view ignoring the vigilance report if sealed cover procedure is not required to be adopted. If the contemplation of disciplinary action is a matter which concerns the vigilance department whose clearance is necessary, then it is only reasonable if the authority which was to accept the recommendations of the DPC required a review of the applicant's case. We are, therefore, not convinced that in a matter of ad hoc promotion, which confers no right and can be discontinued when no longer required unlike regular promotion in accordance with the Constitutional Scheme under Articles 14 and 16 of the Constitution of India, as per decision of the Apex Court in Secretary, State of Karnataka and Ors. v. Umadevi (3) , the right of the employer must be fettered against rejecting such promotion of an employee against whom disciplinary action is contemplated as per the vigilance report.
12. Moreover, para 17.9 at page 102 of Swamy's Compilation mentioned above refers to para 11.1 and clarifies the position with regard to those officers who come under a cloud after DPC meeting, as under:
17.9. A Government servant, who is recommended for promotion by the Departmental Promotion Committee but in whose case any of the circumstances mentioned in para 11.1 above arises after the recommendations of the DPC are received but before he is actually promoted, will be considered as if his case had been placed in a sealed cover by the DPC. He shall not be promoted until he is completely exonerated of the charges against him and the provisions contained in this part will be applicable in his case also.
It is well known that a selection process does not end with the DPC recommendations which require acceptance by the competent authority before they can be acted upon, which acceptance had not been accorded in the applicant's case and the vigilance matter culminated into chargesheet. If the similarity between ad hoc and regular promotion procedures with reference to the three conditions necessary for adopting sealed cover procedure is to be pressed, then in terms of this provision the applicant's case, who had not been actually promoted when the chargesheet was issued, would require to be considered as if placed in sealed cover by the DPC to be dealt with for promotion upon his exoneration.
13. On 8.8.2005 the Government of NCT of Delhi and not MHA, as evident from Annexure-3 at page 54 of the pleadings, on recommendation of the screening committee as per DOP&T OM dated 9.8.1999, nominated certain officers for the second financial upgradation under ACP Scheme which included the applicant who was eligible from 24.7.2004. The respondents have not disputed that the applicant was granted the ACP benefit. Eligibility for upgradation under ACP Scheme would imply that as on 8.8.2005 the applicant was not considered to be wanting under the normal promotional norms as explained at para 6 of Annexure-1 of the Scheme to include benchmark, departmental examination etc., which are ingredients of regular promotion. But this does not advance his claim for ad hoc promotion in the facts of the present case. Admittedly, regular promotion is to be considered by MHA. We would not like to speculate why the applicant has stated that ACP was granted by MHA.
14. From the file of Directorate of Vigilance, Government of NCT of Delhi produced in original by the respondents, it is noticed that on 22.4.2004 the Employment Officer (Vigilance) sent a letter to the Employment Officer (Admn.), Government of NCT of Delhi informing that a regular departmental enquiry was contemplated against the applicant under Rule 14 of the CCS (CCA) Rules. A perusal of letter dated 17.12.2004 on the subject of vigilance clearance report shows reference to Government of NCT of Delhi letter dated 8.11.2004 regarding vigilance clearance for preparation of panel of DANICS. The vigilance status communicated therein in respect of the applicant was As per record available in the Vigilance Branch as on today, due to one complaint case reg. sponsoring of names for the post of Lab Technicians to AIIMS, disciplinary action is under consideration against Shri S.P. Tyagi, AEO. Subsequently, documents on work and conduct including vigilance reports were sent to Joint Secretary (Services), Government of NCT of Delhi on the same subject on 22.3.2005 mentioning that as per vigilance reports received a regular departmental enquiry is contemplated against the applicant under Rule 14 of the CCS (CCA) Rules. These papers reveal that the alleged misconduct was being taken seriously for issue of chargesheet, consequent upon the explanation dated 15.12.2004 received from the applicant.
15. From the record of the DPC meeting held by the Government of NCT of Delhi it is seen that the committee was headed by the Principal Secretary, PWD and included the Secretary (Services) as well as the Divisional Commissioner. It appears that the committee met on three occasions. In the first meeting on 1.6.2005 it recommended 122 feeder category officers for promotion on ad hoc basis to ex cadre post of DANICS but did not allow promotion in the case of 28 officers. At the behest of the Chief Minister, a second meeting was held on 21.7.2005 to reconsider the cases of 28 officers, who were not earlier recommended due to the reasons reported by Directorate of Vigilance. However, on re-examination the committee could recommend 8 more cases out of the 28 left-over ones. Thus, minutes of the DPC meetings in respect of a total of 130 officers recommended for ad hoc promotion were considered by the Lt. Governor who approved the cases of the earlier 122 officers only and in respect of the additional 8 officers recommended in the second meeting by the DPC, their cases were to be reviewed again on the basis of the latest status of the disciplinary matters against them. Accordingly, in the light of vigilance reports, the committee in its third meeting held on 6.12.2005 re-considered the cases of eight officers but did not find four officers, which included the applicant, suitable for assigning higher duties and responsibilities, but recommended the remaining four. As such, this document reveals that the DPC proceedings were taken to conclusion following the intervention of the approving/accepting authority and some of the officers who were initially not recommended came to be included for ad hoc promotion but the applicant, along with three others, was not considered suitable. The applicant has mentioned the names of two officers in particular who were promoted on 7.10.2004, and three juniors promoted on 28.3.2006 but his grievance regarding discrimination is not borne out in the light of the DPC minutes.
16. A perusal of the case law enclosed with the written submissions by the applicant reveals that he has relied upon the following judgments:
(i) Order of Mumbai Bench of this Tribunal dated 24.8.1999 in Kanhaiyalal Shivram Kanitkar v. Union of India and Ors. 1999 (3) ATJ 537 stating that respondents were directed to consider the fitness of the applicant for promotion on ad hoc basis as per his seniority without any reference to pending vigilance enquiry. A perusal of the order indicates that the applicant was a Postal Superintendent in Group B' gazetted and was aggrieved that another person had been appointed on ad hoc basis to work as Superintendent of Post Offices by downgrading the Group A' post of Sr. Superintendent of Post Offices. Once downgraded, it would no longer amount to a case of promotion. In this matter, the judgment of K.V. Jankiraman (supra) which relates to regular promotion was relied upon and even though vigilance enquiry was pending, there was no indication that disciplinary action was contemplated and chargesheet being drafted, as no vigilance report was given. The arrangement was envisaged as a stop-gap one, whereas the present applicant claims ad hoc promotion which, it is contended, would continue till regularization in DANICS.
(ii) The case of N.T. Joseph v Union of India and Ors. (1993) 25 ATC 108 pronounced on 10.6.1992 by the Ernakulam Bench of this Tribunal in OA No. 37/1991, has been relied upon to submit that even in ad hoc promotion the principles laid down in K.V. Jankiraman (supra) have to be followed. There can be little doubt that the judgments in K.V. Jankiraman, Delhi Jal Board and S.P. Banwait (supra) related to regular promotion requiring adherence with the statutory provisions and instructions relevant to the same. We are, therefore, unable to appreciate its extension to a case that is purely of promotion on ad hoc basis. Besides, this order of the Ernakulam Bench was based on the rules peculiar to the Railways and had taken note that the penalty of censure would not be a bar for promotion, and that adverse remarks had been communicated after the DPC meeting.
(iii) A perusal of the order passed by the Ahmedabad Bench of this Tribunal in Jaivirsinh Bapubha Jhala and Ors. v Union of India & Ors on 21.2.2003 in OA No. 416/2002 and batch, indicates that the matter related to regular promotion to the post of Superintendent and the applicants were aggrieved that their cases had been put in sealed cover, which is not the position in the present OA.
(iv) The applicant has also relied on Hemant Kumar Tantia v Union of India and Ors. 1996 (2) ATJ 189 decided on 17.4.1996 in OA No. 1366/1995 by the Mumbai Bench of the Tribunal, to contend that no sealed cover procedure can be adopted to deny promotion on the basis of merely inter departmental correspondence. However, in the present case, as earlier noted, vigilance report had been specifically received spelling out the status of the applicant, after the matter had been processed within the department. Also, in the order referred to, sealed cover procedure appears to have been followed, which is not the case here.
(v) The order in Sri Arun Chandra Bora v Union of India and Ors. passed by the Guwahati Bench of this Tribunal on 30.7.1997 in OA No. 26/1996, reported as 1997 (2) ATJ 318, dealt with regular promotion where sealed cover procedure was followed and direction to consider for ad hoc promotion was given in the light of DOP&T instructions based on the case of K.V. Jankiraman (supra) which envisage that subject to certain conditions ad hoc promotion could be considered if disciplinary proceedings remain pending for more than two years from the date when the candidature was placed under sealed cover.
(vi) Similarly, order passed by this Bench of the Tribunal on 31.5.2006 in OA No. 2147/2005 in the case of Y.S. Jackeray v Union of India and Ors. is found relating to a matter concerning regular promotion where the chargesheet came to be issued before actual promotion was accorded and, therefore, in terms of the relevant rules, the applicant's case was deemed to be under sealed cover.
In view of the above, the judgments relied upon by the applicant are observed to be at variance with the facts of the present case and would not be of assistance to him.
17. The applicant has alleged mala fide without impleading any of the respondents by name. The foregoing discussion does not support the allegation and even the case law cited by the applicant has not been found to be of assistance to him. When an allegation of mala fide is made, the onus to establish the same lies heavy upon the person who makes it. It is well settled that charges of bias or mala fide are more easily made than made out. The Hon'ble Supreme Court in a catena of judgments have indicated what constitutes mala fide and how such an allegation is to be inferred from the facts and circumstances of the case. In particular the Apex Court in Rajendra Roy v. Union of India held that a mala fide action can be inferred from the pleadings and antecedent facts and circumstances only if there is a firm foundation of facts pleaded and established. We find no substance in the pleadings that may require such allegation by the applicant to be taken seriously.
18. The counsel for the applicant has objected to the suggestion of the other side that even if the applicant had been promoted on ad hoc basis, in view of the issue of the chargesheet dated 15.12.2005 he could not have been continued thereafter, and submitted that it would have given a further cause of action and is irrelevant to the present case. We do not consider it necessary to go further into this aspect of the matter.
19. From the memo of parties, it is evident that the applicant has not impleaded the MHA although admittedly the cadre of DANICS officers is controlled by that Ministry and promotion on regular basis to DANICS would be within its purview. As such, the relief claimed by the applicant would not be tenable to that extent due to non-impleadment of necessary party.
20. As we do not find sufficient grounds to intervene on behalf of the applicant, the OA is dismissed but without any order as to costs.