RAJEEV CHANDRA Vs. BORDER ROADS ORGANIZATION

JUDGEMENT

(1.) This is a petition filed under Article 226 of the Constitution of India seeking issuance of a writ of mandamus, directing the respondents to restore the lost seniority of the petitioner on account of delayed promotion from Assistant Executive Engineer (Civil) to Executive Engineer (Civil) along with consequential benefits and interest @ 12% per annum. Order dtd. 27/3/2017 (Annexure P-9) is also challenged in this petition.

(2.) It is submitted by counsel for the petitioner that the petitioner was working on the post of Assistant Executive Engineer (Civil) with the respondent organization. Under the rules, the next promotion from the post of Assistant Executive Engineer (Civil) is to the post of Executive Engineer (Civil). Since the petitioner was having all other favourable records, therefore, he was required to be considered for the vacancy of the year 2010-11. Although, the petitioner was, considered for the vacancy of the year 2010-11onl7.6.2011 but was not promoted only on the ground that on 23/7/2009 he had been awarded a punishment of 'censure'. Through these proceedings of the Departmental Promotion Committee (for short the 'DPC'), the persons who were otherwise admittedly junior to the petitioner, were promoted by the respondents against the vacancies of the year 2010-11. Once again, the respondent department conducted the proceedings of selection for vacancies of the year 2011-12. This time, the DPC considered the case of the petitioner and found him eligible for promotion. Accordingly, the petitioner was promoted as Executive Engineer (Civil) vide order dtd. 5/10/2011. Accordingly, it is submitted by counsel for the petitioner that the petitioner was wrongly ignored in the DPC for the vacancies of the year 2010-11. There is no provision in the rules applicable to the post or under any Instructions governing the promotion to the post of Executive Engineer (Civil), under which the respondents could have denied the promotion to the petitioner on the ground of existence of a punishment of 'censure' against the petitioner. Referring to the clarification dtd. 21/11/2016 (Annexure P-7), issued by the Government of India, the counsel for the petitioner has submitted that the Government of India itself had clarified that an employee can be promoted notwithstanding the existence of the punishment of 'censure'. Even before this clarification, the UPSC had clarified the procedure adopted by it qua conduct of DPC, wherein it was said that 'censure' is not a ground to deny the promotion; as such. Even if there exists a punishment of 'censure' against a person, the matter has to be considered individually on case to case basis after taking into consideration the charge sheet and background material etc. Hence, it is submitted by counsel for the petitioner that despite the existence of the punishment of 'censure', thepetitioner was entitled to be promoted to the post of Executive Engineer (Civil). Counsel has further submitted that criteria for promotion is 'seniority-cum-merit'. Therefore, it is the seniority which would be the prevalent factor unless the petitioner is otherwise found not crossing the threshold of merit. Mere existence of a punishment of 'censure' can neither be interpreted to be a disqualification, nor has the same been prescribed as such under any rule or regulations, applicable to the department. Counsel has relied upon the judgment rendered by a Division Bench of Madras High Court in 'The Secretary to Government and another v. R. Murugesan: 2010 SCC Online Mad 4285', judgments rendered by the Rajasthan High Court in 'Rajendra Singh Rao v. State of Raiasthan and others: 2010 SCC Online Raj 4065' and Ram Khilari Meena v. State of Raiasthan and others: 2010 SCC Online Raj 4690' to buttress his arguments. Accordingly, it is prayed by the counsel that the present petition be allowed. The respondents be directed to rectify the mistake by granting the promotion to the petitioner from the date his juniors were promoted. Further, the consequential steps qua correction of the seniority list be also ordered to be taken.

(3.) On the other hand, counsel for the respondents has submitted that undisputedly, the process of promotion had been completed way-back in the year 2011. The petitioner was even promoted in the year 2011 in the second DCP against the vacancies of the year 2011-12. Despite that, the petitioner has filed the present petition only in the year 2021. Even the representations raising his grievance filed by the petitioner, stood rejected in the year 2012 and in 2017. Hence, the present petition is hopelessly, suffering from delay and latches. The same deserves to be dismissed on this ground alone.The counsel has relied upon the judgment rendered in 'Union of India and others v. Durairai (Dead) by LRs.: 2011 (1) SCT 822, 'State of Uttar Pradesh and others v. Arvind Kumar Srivastava and others; 2006 (2) SCT 417', 'Karnataka Power Corporation Ltd. Through its Chairman and Managing Director and another v. K. Thangappan and another; 2006 (2) SCT 417' and 'Shvam Lai Gupta and others v. State of Punjab and others; 1998 (1) SCT 670'. Counsel has further submitted that even in the present petition the petitioner has not challenged the seniority as such. Not only that; the petitioner has not even implead the persons who would be affected by any change in the seniority list, if the request of the petitioner is to be accepted by this Court. Hence, the petition is bad for non-joinder of necessary parties as well.