Back
2012 Supreme(Del) 1949
High Court of Delhi
THE HONOURABLE MR. JUSTICE BADAR DURREZ AHMED & THE HONOURABLE MR. JUSTICE SIDDHARTH MRIDUL
GNCT of Delhi & Others
Versus
Dalbir Singh
W.P.(C) 6776 of 2011
Decided on : 28-09-2012
For the Petitioners:Ms. Avnish Ahlawat, with Ms. Latika Chaudhary, Advocates.
For the Respondent:Saurabh Ahuja, Advocate.
Mistakes can be corrected by following due process of law, and employees cannot derive benefit from an illegality.
Headnote:
Promotion - Head Constable (Executive) - Delhi Police (Promotion & Confirmation) Rules, 1980 - FR 31-A - Supreme Court decision on erroneous promotion - Correction of mistake
Fact of the Case:
The respondent was promoted to the post of Head Constable (Executive) without the consideration of a previous punishment, which was not brought to the notice of the Departmental Promotion Committee (DPC). The petitioners sought to cancel the promotion due to the factual omission.
Finding of the Court:
The court found that the respondent's promotion was a result of a mistake made by the petitioners, and the correction of such a mistake at a later stage would cause undue hardship to the respondent. However, the court held that mistakes can be corrected by following due process of law, and the respondent cannot derive benefit from an illegality.
Issues: The main issue was whether the respondent's promotion to the post of Head Constable (Executive) was legally sustainable despite the factual omission regarding a previous punishment not being considered by the DPC.
Ratio Decidendi: The court relied on the Government of India's order FR 31-A and the Supreme Court decision on erroneous promotion to establish that mistakes can be corrected by following due process of law, even if it causes hardship to the employee.
Final Decision: The writ petition was allowed, and the order of the Tribunal allowing the respondent's promotion was set aside.
Siddharth Mridul, J.
1. The present writ petition assails the order dated 15th February, 2011 passed by the Central Administrative Tribunal, Principal Bench, New Delhi in O.A. No.3618/2010 whereby the Tribunal allowed the O.A. filed by the respondent herein with a direction that the respondent would continue in the post of Head Constable (Executive) on ad-hoc basis till he gets regularized for the said post. The Tribunal further directed that he would be entitled to the pay and allowances attached to the post, however, such period would not count towards his seniority in the rank of Head Constable (Executive). The brief facts as are relevant to the adjudication of the present writ petition are as follows:-
(i) The respondent was appointed in Delhi Police on 1st May, 1982 as Constable (Executive) and was confirmed in the said rank w.e.f. 1st February, 1986.
(ii) The respondent was in the zone of consideration for Promotion to List ‘C’ (Executive)
and was considered for promotion on ad-hoc basis for a period of six months. On 1st January, 2004 the respondent was promoted on ad-hoc basis vide order dated 1st January, 2004.
(iii) In November, 2004, a DPC was convened to select Constables/Head Constables (Executive) (ad-hoc) for admission of their names to Promotion List ‘C’ (Executive). On recommendation of the said DPC, the name of the respondent was admitted to the Promotion List ‘C’ (Executive) w.e.f. 9th November, 2004 and as such he was promoted to officiate as Head Constable (Executive) w.e.f. 18th November, 2004.
(iv) Consequently, after a lapse of about five years, it was reported on 15th May, 2009, that the respondent had remained under suspension from 29th October, 2004 to 10th March, 2005 and had been awarded the punishment of withholding of future increments for a period of one year without cumulative effect and his suspension period determined as period ‘not spent on duty’ vide order dated 23rd March, 2006. The said punishment was an impediment for his promotion for a period of two years and the same expired on 22nd March, 2008.
(v) It is the case of the petitioners that officers who have been awarded any major punishment in the preceding five years on the charges of corruption, moral turpitude and gross dereliction in discharge of duty and involved in a major punishment within two years on charges of administrative lapse, misconduct, negligence, inefficient performance from the date of consideration, may not be empanelled.
(vi) The fact of such punishment had not been brought to the notice of the DPC held on the 2nd November, 2004 and consequently, the name of the respondent had been brought to the Promotion List ‘C’ (Executive) and the respondent had subsequently been promoted to the rank of Head Constable (Executive).
(vii) A Show Cause Notice (SCN) was issued to the respondent on the 18th June, 2009 stating therein as to why the order
regardingadmission of the respondent’s name to Promotion List ‘C’ (Executive) w.e.f. 9th November, 2004 and promotion as Head Constable (Executive) w.e.f. 18th November, 2004 should not be cancelled with immediate effect.
(viii) Subsequently, after receiving the representation of the respondent, appropriate orders were passed on the 25th October, 2009 and the name of the respondent brought on Promotion List ‘C’ (Executive) and further promotion to the rank of Head Constable (Executive) was cancelled.
(ix) The respondent’s name was again considered for promotion to the Promotion List ‘C’ (Executive) but was found to be on secret list of doubtful integrity.
(x) Aggrieved by the action of the petitioners, the respondent filed the said O.A. No.3618/2010 which was allowed vide order dated 15th February, 2011as aforesaid.
(xi) The petitioners have filed the present writ petition impugning the said order dated 15th February, 2011 passed by the Tribunal.
1. 2. In the present case the question to be determined is whether the promotion of the respondent herein to the post of Head Con
