S.S. KARIR Vs. DELHI ADMINISTRATION AND ANOTHER

JUDGEMENT

(1.) The petitioner S.S. Karir and Respondent 2 G.D. Bellani were Overseer/Section Officers in the Development Department under the Administrator of the Union Territory of Delhi. According to column 11 of the statutory rules dated 23-9-1968 made under the proviso to Art. 309 of the Constitution they, being diploma holders and not degree holders, would be entitled for being considered for promotion to the post of Assistant Engineer after eight years of service as Sec. Officers. The petitioner was appointed as a Sec. Officer on 22-1-1962 and was thus to complete eight years' service on 22-1-1970. The Respondent No. 2 was, however, junior to the petitioner being No. 10 in the seniority list in which the petitioner was No. 9. Respondent 2 was appointed as an Assistant Engineer ad-hoc without prejudice to the seniority of anyone else on 19l7-1968. His appointment as Assistant Engineer was regularised with effect from 30-5-1970. The sole ground on which the writ petition was filed is that the Respondent No. 2, though junior to the petitioner, was appointed as an Assistant Engineer first ad hoc and then regularly without the claim of the petitioner to such an appointment being considered. The petitioner was thus discriminated against.

(2.) The decisive facts not mentioned by the petitioner were stated by the Government (Respondent No. 1) in the counter-affidavit. The petitioner as well as the Respondent No. 2 were considered on merits for promotion on ad hoc basis to the post of Assistant Engineer in July, 1968. The petitioner was, however, not approved for such ad hoc promotion as a case for major penalty was under investigation against him on the report of the Central Bureau of Investigation. In April, 1969 a meeting of the Departmental Promotion Committee was held and some Sec. Officers senior to the petitioner as also the Respondent No. 2 were considered for promotion to the post of an Assistant Engineer. The fact that the Respondent No. 2 was already acting as an Assistant Engineer on an ad hoc basis was not taken into consideration. The petitioner could not be considered for promotion because an enquiry involving a major penalty was pending against him in 1969. A panel of five persons for promotion was recommended by the Departmental Promotion Committee. It included the Respondent No. 2. It is on the basis of this selection that the Respondent No. 2 was appointed as an Assistant Engineer regularly on 30-5-1970.

(3.) At the opening of the argument, the original proceedings of the Departmental Promotion Committee held in April, 1969 were called for (copies thereof were filed later by the Government and the petitioner). It was disclosed that the name of the petitioner was simply not considered by the Departmental Promotion Committee, but no reason was apparent why it was not considered. At that stage no one had pleaded that instructions issued by the Ministry of Home Affairs precluded the consideration of an official for promotion if an investigation or an enquiry was pending against him. I, therefore, observed that the reason given by the Government for non-consideration of Shri Karir for promotion was not borne out by the proceedings of the Departmental Promotion Committee of 1969. I also found that the petitioner was considered by the Departmental Promotion Committee in 1970 for promotion even though an enquiry was pending against him. Shri Devinder K. Kapur, learned counsel for the Government, then explained that the petitioner was not considered in 1969 because he had not completed eight years' service as Sec. Officer. Since this defence was not taken in the first counter affidavit, I called upon the Government to file a second one. The Government accordingly filed a second counter-affidavit taking up this defence in addition to the first defence that the petitioner was not considered for promotion in 1969 because of the enquiry pending against him. The petitioner then filed a long and repetitive rejoinder which was not justified by the second counter affidavit of the Government. As annexures to this rejoinder, he filed copies of the instructions issued by the Home Ministry on 3-11-1958, 31-8-1960 and 22-12-1964 laying down that an official against whom an investigation or an enquiry is pending should not be considered for promotion but on being exonerated, he should be promoted without loss of seniority as if he was not passed over when he was first entitled to be considered for promotion during the pendency of an investigation or an enquiry. He would not, however, be entitled to arrears of pay as if he had actually served in the promotion post from the lime he was passed over till he was actually promoted.