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High Court Of Delhi
S.P.AGARWAL - Appellant
Versus
DELHI MUNICIPAL CORPORATION - Respondent
Decided On : 09/02/1996
PROMOTION - ADHOC - WITHHOLDING - MALAFIDE - ARBITRARY - DISCRIMINATION - CVC ADVICE - BINDING OR NOT - SERVICE REGULATIONS - DISCIPLINARY PROCEEDINGS - INITIATION - CVC RECOMMENDATION - DELAY - DILATORY TACTICS - SEALED COVER PROCEDURE - WHEN TO BE RESORTED TO - SELECTION POST - PROMOTION - RIGHT TO BE CONSIDERED - RIGHT TO BE PROMOTED - DISTINCTION.
Fact of the Case:
Petitioner, a Chief Engineer (Electrical) with DESU, was eligible for promotion to the post of Additional General Manager (T-D) on August 31, 1994. However, the promotion was not granted due to pending vigilance cases against him and respondent No. 5. The DPC held on May 2, 1995, recommended respondent No. 5 for ad-hoc promotion, while the petitioner's promotion was withheld. The petitioner's subsequent ad-hoc promotion order dated June 28, 1995, was withheld on June 29, 1995, allegedly due to the intervention of the then Chief Minister.
Finding of the Court:
1. The advice of the Central Vigilance Commission (CVC) is not binding on the Disciplinary Authority. However, it may be desirable to abide by the advice and take it as one of the criteria to assess the case of the delinquent officer. 2. The Disciplinary Authority has to apply its own mind and arrive at independent conclusions. 3. The pendency of preliminary investigation prior to the issuance of a charge memo or charge-sheet will not be sufficient to enable the Authorities to adopt the sealed cover procedure or to withhold the promotion of the employee. 4. The petitioner was entitled to similar and same relief as respondent No. 5, as no charge memo was issued against either of them when their cases for ad-hoc promotion were considered. 5. The denial of promotion to the petitioner on June 29, 1995, was based on extraneous and malafide considerations and is liable to be struck down.
Issues: 1. Whether the advice of the CVC is binding on the Disciplinary Authority? 2. Whether the pendency of preliminary investigation is sufficient to withhold the promotion of an employee? 3. Whether the petitioner was entitled to similar and same relief as respondent No. 5? 4. Whether the denial of promotion to the petitioner on June 29, 1995, was based on extraneous and malafide considerations?
Ratio Decidendi: 1. The advice of the CVC is not binding on the Disciplinary Authority, but it may be desirable to abide by the advice and take it as one of the criteria to assess the case of the delinquent officer. The Disciplinary Authority has to apply its own mind and arrive at independent conclusions. 2. The pendency of preliminary investigation prior to the issuance of a charge memo or charge-sheet will not be sufficient to enable the Authorities to adopt the sealed cover procedure or to withhold the promotion of the employee. 3. The petitioner was entitled to similar and same relief as respondent No. 5, as no charge memo was issued against either of them when their cases for ad-hoc promotion were considered. 4. The denial of promotion to the petitioner on June 29, 1995, was based on extraneous and malafide considerations and is liable to be struck down.
Final Decision: The subsequent order of withholding ad-hoc promotion of the petitioner dated June 29, 1996, is quashed. Respondents 1 to 3 shall also consider the case of the petitioner for regular promotion in the vacancy arising on July 1, 1995.
( 1 ) THE present petition is directed against the respondents, Delhi Electric Supply Undertaking (for short d. E. S. U. ) for issuance of a writ of mandamus to promote the petitioner to the post of Additional General Manager with effect from August 31, 1994 and quash the promotion of respondent No. 5 to the same post.
( 2 ) THE petitioner is a Chief Engineer (Electrical) with D. E. S. U. having joined as Assistant Engineer in the year 1962. The petitioner was thereafter promoted to the post of Executive Engineer in 1970, Superintending Engineer in 1981, Additional Chief Engineer in 1988 and Chief Engineer on regular basis in 1991. The organisation D. E. S. U. is headed by General Manager and has two Additional General Managers i. e. Additional General Manager (Technical-Distribution) and Additional General Manager (Technical-Generation) besides Administration. It is alleged that in August, 1994 there occurred a vacancy in DESU to the post of Additional General Manager (T-D ). Since this post is a promotion post, it is required to be filled by holding a regular DPC and after obtaining Vigilance and Disciplinary clearances of the candidates as per the rules. The petitioner, it is argued, was given Vigilance and Disciplinary clearance in August, 1994 and was eligible for being promoted to the above said post, the Vigilance clearance could not be given to respondent No. 5, Shri Y. P. Singh who was also the Chief Engineer at that time, on account of Central Vigilance Commission having already recommended the initiation of Disciplinary proceedings for the imposition of a major and minor penalty against him in two separate cases. The said Commission had recommended the initiation of proceedings as far back as in December, 1991 in respect of the irregularities committed by respondent No. 5 in 1989 for the purchase of low tension PVC armoured cables worth Rs. 84,15,750. 00 The following facts and procedure for initiation of disciplinary proceedings as referred to in the writ petition may be reproduced as under : " (a) Any complaint against an Officer is first investigated by the Vigilance Department of DESU and if it is prima fade of the view that the complaint calls for initiation of disciplinary proceedings, it forwards the case to the Central Vigilance Commission which after its own investigation makes a recommendation as to whether the case calls for initiation of disciplinary/ vigilance proceedings for imposition of major/minor penalty against him. It is on this recommendation of the CVC that a charge sheet is issued/not issued to the concerned Officer by DESU and thereafter if a charge sheet is issued a regular enquiry is 200 held at the conclusion of which, if the Officer is found guilty the Appointing Authority decides the punishment that should be imposed on the Officer. (b) In the above vigilance case against respondent No. 5 the CVC had recommended the initiation of proceedings for imposing a major penalty against respondent No. 5 in December, 1991 (copy enclosed as Annexure A) after the case had been referred to it by the Vigilance Department of DESU. However, despite this recommendation DESU sat over the matter for the next two years. (c) In October, 1993 the General Manager, DESU wrote to the CVC asking it to reconsider its advice for initiating proceedings against respondent No. 5. Copy of this letter is annexed hereto as Annexure B. In response to this the CVC wrote back to DESU and severely criticised DESU for having sat on its recommendations for two years and observed that the delay seems to be intentional. The CVC wrote that "the Commission considers that the delay was intentional. The CVC would therefore advice the General Manager, DESU who is functioning as Chief Vigilance Officer to explain the reasons for the delay that has occurred in this case. " Further the CVC reiterated its advice to initiate proceedings for major penalty against respondent No. 5 in this case. A copy of the CVC s letter d
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