JEEVAN LAL S/O SHRI HARSWAROOP SINGH Vs. GOVT OF NCT OF DELHI THROUGH CHIEF SECRETARY

JUDGEMENT

(1.) WHETHER applicant is entitled to promotion or not is the question raised in present OA. The relief prayed for, in this OA, read thus:

(2.) The facts, as stated, are that the applicant was enrolled as Sub Inspector in the year 1982 as direct recruit. While posted at P.S. Kalyan Puri, he was placed under suspension vide order dated 05.05.1989. After holding a departmental enquiry, he was dismissed from service vide order dated 25.04.1991 and statutory appeal preferred was also rejected vide order dated 19.09.1991. He instituted OA No. 2871/1991, challenging aforesaid orders, which was allowed vide order dated 06.05.1997 and the matter was remitted back to the disciplinary authority to follow the procedure from the stage at which the fault arose and respondents were directed to complete the enquiry. Consequently he was reinstated in service and placed under deemed suspension w.e.f. the original date of dismissal in terms of directions issued vide aforesaid order of this Tribunal. On conclusion of enquiry, once again a penalty of removal from service was inflicted upon him vide order dated 09.11.1998. Statutory appeal preferred against aforesaid order was also rejected on 15.07.1999 and thereupon he instituted OA No. 1928/1999, which was dismissed by this Tribunal and, therefore, he preferred Civil Writ Petition No. 1870 of 2001 before the Hon'ble Delhi High Court. Vide order dated 19.03.2002, the said Writ Petition was allowed and the matter was remitted back to this Tribunal 'for consideration of the matter afresh'. Thereafter, upon hearing the parties and on consideration of entire matter, said OA No. 1928/1999 was allowed vide order dated 09.07.2002 and orders passed by disciplinary as well as appellate authorities were quashed. Respondents were directed to reinstate him in service, but back wages for intervening period till date of reinstatement was denied on the ground of 'no work no pay'.

(3.) SHRI S.K. Gupta, learned Counsel appearing for applicant vehemently contended that once he was fully exonerated by this Tribunal on 09.07.2002, under the law, he was entitled for inclusion of his name in List-'F'. In terms of instructions issued from time to time, 5 years ACRs only were required to be considered and thus, taking into consideration the ACRs from the year 1989 to 1994, he was entitled to be given the bench mark. In absence of actual ACRs, as he was dismissed from service vide order dated 25.04.1991 till he was reinstated after the judgment dated 06.05.1997, there were no CRs written and, therefore, said bench mark cannot be taken as 'average', and rather it has to be presumed that his services were satisfactory. Moreover, there appears to be contradiction in the respondents' own stand as conveyed vide impugned communication dated 02.06.2004, that he was considered 'unfit' in the DPCs held on 12.08.1994 as well as on 09.11.2001, then how he could be declared to be not within the zone of consideration for DPC held in the year 1998. Ld. Counsel contended that numerous juniors were promoted in the said DPCs held in between 1994 and 2001. Moreover, aforesaid impugned communication specifically noticed that besides his service records and ACRs, respondents had also considered his 'integrity etc'. It was contended that once applicant was completely exonerated, the respondents cannot be allowed to harp on the element of his 'integrity'. Similarly, what were the additional materials considered in the form of 'etc.' have not been disclosed or pointed out by respondents, which weighed the Review DPCs in arriving at the conclusion of his unfitness.