RAJ MOHAN SINGH Vs. MCD THRU COMMISSIONER

JUDGEMENT

(1.) In this petition the Office Order dated 29.10.2004 "reverting" the Petitioner to the previous post in which he was serving, has been assailed. The Office Order reads as follows: Shri Raj Mohan Singh, Addl. Commissioner (General), MCD, Under Suspension in view of his involvement in RC DAI-2004-A-0042 dated 28.9.2004 u/s 13(2) r/w 1(I)(e) of PC Act 1988, as per provision of Regulation 5(2) of the DMC Services (Control and Appeal) Regulations, 1959, is hereby reverted to the post of Dy. Commissioner (Ad hoc) in the pay scale of Rs.14300-18300/- with immediate effect. The challenge is predicated on the contention that the reversion is punitive in nature and is stigmatic in character and hence should mandatorily have been preceded by an Inquiry.

(2.) By Office Order dated 30.6.2003 the Petitioner had been promoted to the said post on "ad hoc basis" which after due cogitation, appears to me to be a contradiction in terms. The Order reads as follows: MUNICIPAL CORPORATION OF DELHI (Central Establishment Department) Town Hall : Delhi-6. No.F.1(14)/CED(II)/86 Dated:30.6.03 /PT.II/85/11846-917 OFFICE ORDER Shri Raj Mohan Singh, Dy. Commissioner on ad hoc basis and at present working as Director(Pry. Education) is hereby promoted to the post of Addl. Commissioner in the pay scale of Rs.18400-22400/- on ad hoc basis w.e.f. 1.7.2003 initially for a period of one year, or till such time the post is filled up on regular basis, which ever is earlier. The above said ad hoc appointment shall be subject to the following terms & conditions:- i)The appointment shall be purely on ad hoc basis, as a matter of stop gap arrangement and shall not entitle the officer to claim any benefit on account of the said promotion. ii)The appointment is on ad hoc basis pending regular appointment in accordance with the Recruitment Regulations and will not confer any privilege or right on the officer for regular appointment to the said post. iii)The period of ad hoc service will not be counted towards eligibility period for regular promotion for determination of seniority. iv)The ad hoc appointment can be terminated at any time without assigning any reason and giving any prior notice. v)The above said ad hoc appointment shall be further subject to the instructions/guidelines issued by the Govt. of India/Corporation from time to time in this regard. This issues with the approval of the Commissioner, Chairman (Appointment Committee) and Hon'ble Mayor in anticipation of the approval of the Corporation. Sd/- (KRISHAN LAL) DIRECTOR (PERSONNEL) It needs to be immediately highlighted that whilst in the Order dated 3.6.2003 the Petitioner has been promoted to the post of Additional Commissioner on ad hoc basis, in the impugned Officer Order dated 29.10.2004 he has not been described as Additional Commissioner (Ad hoc). It is certainly arguable that in the sixteen months that the Petitioner functioned as Additional Commissioner his services progressed from an `ad hoc' to a quasi permanent if not a substantive appointment as envisaged in Parshottam Lal Dhingra vs. UOI, AIR 1958 SC 36. This assumption appears to be fortified by the fact that the Petitioner has not been mentioned as `ad hoc' in the Office Order dated 30.9.2004 which reads as follows: Under the orders of Competent Authority, Shri Raj Mohan Singh, Addl. Commissioner (General) MCD is herby placed under suspension with immediate effect in view of his involvement in RC DAI-2004-A-0042 dated 28.9.2004 u/s 13 (2) r/w 13(1) (e) of PC Act 1988, as per provision of Regulation 5(2) of the DMC Services (Control & Appeal) Regulations, 1959. He will, however, be paid subsistence allowance as per rules. The Suspension Order is not under challenge in this petition. Further, reliance has been placed on the recommendations of the Commissioner as contained in his letter dated 25.10.2004 in which, after briefly dealing with the complaints against the Petitioner it has been stated that "in view of the facts and circumstances, the matter is placed before the Corporation for approval regarding the suspension and reversion of Shri Raj Mohan Singh, Addl. Commissioner, MCD, Delhi." Again there is no mention of the ad hoc nature of the appointment.

(3.) The impugned order has been defended by Mr. Vinay Sabharwal, learned counsel appearing on behalf of Respondent, on the platform that no stigma attaches to the reversion and that this is especially so since the Petitioner has not acquired any lien to the post of Additional Commissioner (Genl.), MCD. These submissions are strenuously opposed by Mr. A.S. Chandhioke, learned Senior counsel for the Petitioner. It is his contention that the Petitioner has been visited with a major penalty as envisaged in Regulation 6 (iv) of Delhi Municipal Corporation Service (Control and Appeal) Regulations, 1959 (hereinafter referred to as the said Regulations) which speaks of "reduction in rank including reduction to a lower post, or to a lower time scale or to a lower stage in a time scale". This is also the Constitutional compulsion crystallized in Article 311 (2). In this regard reliance has been placed on Regulation 8 of the said Regulations which prescribes the procedure for imposing major penalties and mandates that no such penalty shall be imposed except after an Enquiry is held. Admittedly no Enquiry has been instituted prior to the alleged reversion or reduction in rank.