RAM NIWAS Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner, Shri Ram Niwas, who had been awarded punishment of censure on 5th January, 1998; 3rd April, 1998; 13th July, 2006; 10th July, 2006; 3rd February, 2007 and 22nd February, 2008 besides punishment of withholding of one years temporary service by order dated 3rd March, 1999 which was upheld by the Appellate Authority and punishment of forfeiture of one year service permanently by the Appellate Authority, had challenged his consideration for promotion in the DPC held on 13th January, 2009 following the guidelines dated 29th December, 2008 contending that since the vacancies had arisen prior to 29th December, 2008, therefore, the DPC should have followed the guidelines dated 7th February, 2005, which prayer was declined by the Tribunal in OA No.733 of 2009 titled Shri Ram Niwas v. Union of India and others by order dated 4th September, 2009 which is challenged by the petitioner in the present writ petition. According to the petitioner, 7612 vacancies had occurred on 26th September, 2008 and communicated to Commissioner of Police on 18th November, 2008, therefore, the DPC which was held on 13th January, 2009 should have followed the circular dated 7th February, 2005 and not the circular dated 29th December, 2008 laying down the guidelines for DPC. THE Departmental Promotion Committee is constituted for ascertaining the promotion of the personnel under Rule 8 of Delhi Police (Promotion and Confirmation) Rule, 1980. Rule 17 contemplates that confirmed Sub Inspector (Executive) who have put in a minimum of six years service in the rank of Sub Inspector shall be eligible and the selection shall be made on the recommendation of the DPC. This is not disputed that the guidelines are issued from time to time crystallizing parameters to be followed for admission to promotion list. THE salient features of the guidelines of 7th February, 2005 contemplated that suitability of the employees for promotion shall be their service records with particular reference to confidential reports for five preceding years and officers having at least three Good and Above Average reports without any Below Average or Adverse report even for a small period during last five years would be empanelled. THE service record during preceding 10 years was to be taken into account with particular reference to the gravity and continuity of punishment and punishment on account of corruption and moral turpitude, was to be viewed seriously. Officers having been awarded major/minor punishment in preceding five years on charge of corruption, moral turpitude and gross dereliction of duties were not to be empanelled, however, officers who had been awarded censure during last six months could be allowed to be brought on promotion list. THEse guidelines issued on 29th December, 2008 also contemplated assessment of the suitability of personnel on the basis of their service record with particular reference to the confidential report for five preceding years irrespective of qualifying service prescribed in the service or recruitment rules. THE new guidelines also contemplated that the officers may not be empanelled in case of major punishment awarded to them during preceding five years on the charge of corruption, moral turpitude, gross dereliction in discharge of duties and even the officers awarded any minor punishment in preceding five years on charge of corruption, moral turpitude, etc., may not be empanelled. THE petitioner on the basis of information rendered to him under Right to Information Act, 2005 had asserted that the vacancies of the Inspector (Executive) for financial year 2008-2009 were drawn up on 16th September, 2008 and the Government of India had sanctioned 7612 additional posts in various ranks including Inspector (Executive). This was also averred by the petitioner that the approval for creation of 7612 posts was conveyed by letter dated 18th November, 2008 by the Ministry of Home Affairs and the DPC held on 13th January, 2009, had recommended for promotion of 73 Sub Inspector (Executive) as Inspector (Executive), however, the petitioner was not promoted by said order. Before the Tribunal, the petitioner had challenged the proceedings of the DPC solely on the ground that since the vacancies had been created in November, 2008, therefore, DPC which was held on 13th January, 2009 should have followed the guidelines issued on 7th February, 2005 and not on 29th December, 2008. According to petitioner he has a vested right for consideration for inclusion in promotion list F. He contended that consideration for promotion had necessarily to be based on the circular dated 7th February, 2005 as the circular dated 29th December, 2008 was not in existence on that date the vacancies had arisen. Learned counsel for the petitioner had also relied on Chairman Railway Board and Others v. C.R. Rangadhamaiah and others, AIR 1997 SC 3828; Y.V. Rangaiah and others v. J. Sreenivasa Rao and Others, AIR 1983 SC 852; Hira Lal v. Government of NCT of Delhi and others, 2002 II AD (Delhi) 878 (Delhi High Court); Maharashtra State Road Transport Corpn. And others v. Rajendra Bhimrao Mandve and others, (2001) 10 SCC 51; and Ashok Kumar v. Slum and J.J. Deptt., MCD and others, 2005 VII AD (Delhi) 429 (Delhi High Court) in support of his plea and contentions. THE respondents had opposed the claim of the petitioner contending inter alia that DPC had full discretion to devise its own method and procedure for objective assessment of the suitability of the candidates based on the guidelines for DPC circulated by Department of Personnel and Training (DoPT) by Office Memorandum dated 10th April, 1989. According to respondents, the DPC was constituted for financial year and the latest guidelines in existence on the date of meeting of the DPC were, therefore, considered and as the DPC had been held on 13th January, 2009, therefore, the latest guidelines of 29th December, 2008 were taken into consideration. THE Tribunal considered the judgments relied on by the petitioner and distinguished them as they were for selection on the basis of examination etc. and held that the precedents relied on by the petitioner were clearly distinguishable. In Maharashtra State Road Transport Corpn. and others (supra), it was noticed that the circulars issued were inadequate and rather did not contain any reference to the driving test and therefore, weightage was to be given only for written test and interview. THE clarificatory circular was also issued, however, on the basis of the ratio of the same judgment, it cannot be held that the DPC which held on 13th January, 2009 should not have followed the guidelines of 29th December, 2009. THE Tribunal also found the case of Ashok Kumar (supra) to be tangentially different and also observed that another judgment relied on by the petitioner, i.e., Siraj Khan and others v. Union of India, 2004 (78) DRJ 137 (Delhi High Court) were again far off the marks. Considering the precedents relied on by the petitioner, this Court is also of the opinion that the said precedents have no application in the present case of the petitioner. It cannot be disputed that the ratio of any decision must be understood in the background of the facts of that case. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. It must be remembered that a decision is only an authority for what it actually decides. It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. THE ratio of one case cannot be mechanically applied to another case without having regard to the fact situation and circumstances in two cases. THE Supreme Court in Bharat Petroleum Corporation Ltd and Anr. v. N.R.Vairamani and Anr. (AIR 2004 SC 778) had held that a decision cannot be relied on without considering the factual situation. In the judgment the Supreme Court had observed:-