JASVEER SINGH (DECEASED) THROUGH LRS vs DINKAR GUPTA
* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment reserved on : 03 July 2024 Judgment pronounced on : 20 August 2024 + CONT.CAS(C) 775/2023 JASVEER SINGH (DECEASED) THROUGH LRS …..Petitioner Through: Dr. S.S. Hooda, Adv. versus DINKAR GUPTA …..Respondent Through: Ms. Manisha Agrawal Narain, CGSC with Mr. Sandeep Singh Somaria, Adv. and Mr. Bhargav Goswami, ASP, NIA CORAM: HON’BLE MR. JUSTICE DHARMESH SHARMA JUDGEMENT
1. The petitioner is invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India seeking initiation of contempt proceedings against the respondents/contemnors under Section 11 of the Contempt of Courts Act, 19711 for wilful disobedience and non-compliance of the impugned common judgment and order dated 21.12.2021 passed by this Court in W.P.(C) No. 6686/2021 titled Jasveer Singh vs. Union of India & Ors. & W.P.(C) No. 11103/2021 titled The Director General & Ors. vs. Jasveer Singh.
1 C.C. Act
2. Shorn off unnecessary details, the petitioner/Jasveer Singh (now deceased and represented through his legal heirs including wife), secured employment in the BSF2 in the rank of Sub Inspector [SI] on 01.08.1991 and was later promoted to the rank of Inspector in the year 2000. In the year 2009, on setting up of the NIA3 under the administrative control vested with the MHA4, the petitioner was one of those who applied for being inducted in the NIA, albeit on deputation. Resultantly, the petitioners name came up for consideration for promotion and he was promoted to the rank of Assistant Commandant in the BSF with effect from 25.05.2011.
3. The MHA vide the communication dated 26.05.2011 notified several changes with respect to the persons appointed as Inspectors in the BSF and who were working with the NIA. The impact of the aforesaid communication was that the petitioner was placed in pay band-3 (15600-39100) and was granted a pay of Rs. 5,400/- via the office order dated 24.10.2011, which led to series of litigation as amongst the parties. Consequently, as of now, the main grievance of the petitioner is that the respondents have not given him the benefit of the services rendered by him in his parent department i.e., BSF, prior to his absorption in the NIA.
4. It is pertinent to note that in the compliance affidavit dated 14.05.2024 filed by the respondent, reliance is placed on the Office Memorandum [OM] dated 27.03.2023 issued by the Department of Personnel and Training [DoPT] incorporating consolidated
2 Border Security Force 3 National Investigation Agency 4 Ministry of Home Affairs
guidelines for Departmental Promotion Committee [DPC] and Notional Promotion and Arrears and vide paras 20.4.1 and 20.4.3, denied any arrears payable to the petitioner stating that consequential benefits do not include arrears, and in this regard, reliance was placed on the decision in Union of India v. Taresem Lal5.
5. Further, reliance is placed on the OM dated 10.04.1989 wherein it provided that each DPC should decide its own method and procedure for objective assessment of suitability of the candidates. Lastly, the respondents in their compliance affidavit referred to a decision in the case of Union of India v. K.V. Jankiraman6, wherein it was held that vigilance clearance for promotion may be denied in cases where a charge sheet has been issued and disciplinary proceedings are pending against any government servant.
5 MANU/SC/8513/2006 6 (1991) 4 SCC 109
LEGAL SUBMISSIONS ADVANCED AT THE BAR:
6. Learned counsel for the petitioner alluded to the Office order No. 1520/2023 dated 14.08.2023 issued by the NIA, Ministry of Home Affairs, whereby the petitioner/Jasveer Singh was promoted notionally from the post of Deputy Superintendent of Police [DSP] to Additional Superintendent of Police [ASP] in NIA with effect from 01.04.2017 for the vacancy year 2017-18 and it was urged that the respondents, based on the principle of No Work No Pay, had refused them to grant any arrears of pay. It was urged that the principle of No Work No Pay will not be applicable in cases where the employee is willing to work but he is not being allowed to work by
choice of the authorities. In this regard, learned counsel for the petitioner relied upon the decision in K.V. Jankiraman (Supra).
7. Per Contra, Ms. Manisha Agrawal Narain, Central Government Standing Counsel (CGSC), appearing on behalf of the respondents alludes to the OM dated 15.11.2018, (Annexure R-8 Pleadings 2) wherein para (2) of said OM provides that a government servant who is not recommended in the panel by the original DPC, but later on recommended by a review DPC and has since retired, may be given the benefit of notional promotion subject to fulfilment of conditions. Lastly, it was averred by learned counsel for the respondents that disciplinary proceedings were also pending against the petitioner at that time.
ANALYSIS AND DECISION:
8. Having heard the learned counsel for the parties present and on meticulous examination of the records, it would be expedient to reproduce the directions passed by this Court vide order dated 21.12.2021:
20. For the foregoing reasons, we are inclined to set aside the impugned order dated 07.01.2021, passed by the Tribunal. It is ordered accordingly. 20.1. The period of service between 07.09.2011 and 04.05.2015 will be taken into account for determining the eligibility of the petitioner for being considered for promotion to the post of ASP for the vacancy year 2017- 2018. Resultantly, a review DPC will be convened to consider the case of the petitioner for promotion to the post of ASP for the vacancy year 2017-18, with all consequential benefits 20.2. Since the impugned communications dated 08.02.2017, 13.02.2017 and 20.04.2017 are contrary to the ratio of the decision rendered by the Supreme Court in the K. Madhavan case, the same, are accordingly set aside.
21. The net result is, W.P.(C.) No.6686/2021 stands allowed, while W.P.(C.) No.11103/2021 is dismissed.
9. It is brought out in the compliance report filed by the respondents that pursuant to the aforesaid directions passed by this Court, after completion of the procedural formalities, the DPC, NIA vide order No. 1520/2023 dated 14.08.2023 granted notional promotion in favour of Late Sh. Jasveer Singh to the rank of Additional Superintendent of Police w.e.f. 01.04.2017 in terms of vacancy year 2017-18.
10. The plea by the learned counsel for the respondent that since the petitioner died during the service on 29.03.2023, he would be treated as having been retired from the service in terms of the OM dated 05.11.2018, is clearly not legally palatable. The said OM provides as under:-
F. No. 22011/312013-Estt. (D) Government of India Ministry of Personnel, Public Grievances and Pension Department of Personnel & Training North Block, New Delhi Dated 15th November, 2018 OFFICE MEMORANDUM Sub: Promotion of Government servants found fit by review DPC after retirement – procedure and guidelines to be followed.
The undersigned is directed to invite reference to this Department’s OM of even number dated 25.1.2016 which deals with the grant of notional promotion to a Government servant exonerated in a disciplinary proceedings after retirement. However. the cases of Government servants who are found fit by review DPC after their retirement on account of revision of seniority list of the feeder cadre, upgradation of below benchmark APARs etc. are not covered under the said OM. These cases have now been examined
and 1t has been decided to lay down procedure as narrated in subsequent paragraphs for dealing with such cases. 2. A Government servant who is not recommended in the panel by the original I supplementary DPC but later on is recommended in the panel by a review DPC but has since retired may be given the benefit of notional promotion we.f the date of promotion of his immediate junior in the reviewed panel and fixation of notional pay SLJbject to the fulfillment of the following conditions: (i) That the officer who is immediate junior to the retired Government servant assumed charge of the higher post on or before the date of superannuation of the retired Government servant. (ii) That the said retired Government servant was clear from vigilance angle on the date of promotion of his immediate junior. (iii) A retired Government servant who is considered for notional promotion from the date of promotion of his immediate junior on the recommendation of a review DPC would also be entitled to fixation of pension on the basis of such notional pay. (iv) The notional promotion, notional pay fixation and revision of pension shall be further subject to extant rules on promotion, pay fixation and CCS (Pension) Rules, 1972. Actual increase in pension shall be given only from the date of approval of reviewed panel by the competent authority. No arrears shall be paid. 3. The provisions contained in this Office Memorandum shall become operational from the date of issue of this Office Memorandum. Past cases settled in accordance with the earlier provision shall not be reopened. 4. In so far as persons serving in the Indian Audit & Accounts Department are concerned, these orders issue after consultation with the Comptroller & Auditor General of India. 5. Hindi version will follow. Sd/- (G. Jayanthi) Joint Secretary (E.I) To All Ministries and Departments of Government of India.
11. A bare perusal of the aforesaid OM would show that it applies to a Government Servant, who has been considered for promotion and found fit by the Review DPC after retirement. The said OM does not
apply to a Government Servant, who has died during the tenure of his service. Similarly, there is no question of application of the OM dated 27.03.2023 issued by the DoPT in the case of the petitioner, which applies to consolidated guidelines7 for the functioning of the DPC, grant of notional promotion and arrears. The said guidelines would be applicable where an officer, who is junior to the officer concerned, has been promoted and in case there is no vacancy, the junior most person officiating in the higher grade has to be accommodated. No such situation has arisen in the present matter.
12. To sum up, a bare perusal of the aforesaid OM would show that it applies to retired Government officials who are notionally promoted after retirement and in such cases, no arrears would be paid.
720.4 Consequential benefits in case of retrospective promotion 20.4.1 If the officer placed junior to the officer concerned have been promoted, he should be promoted immediately and if there is no vacancy the junior most person officiating in the higher grade should be reverted to accommodate him. On promotion, his pay should be fixed under F.R. 27 at the stage it would have reached, had he been promoted from the date the officer immediately below him was promoted but no arrears would be admissible. The seniority of the officer would be determined in the order in which his name, on review, has been placed in the select list by DPC. If in any such case a minimum period of qualifying service is prescribed for promotion to higher grade, the period from which an officer placed below the officer concerned in the select list was promoted to the higher grade, should be reckoned towards the qualifying period of service for the purpose of determining his eligibility for promotion to the next higher grade. 20.4.3 A Government servant who is not recommended in the panel by the original/ supplementary DPC but later on is recommended in the panel by a review DPC but has since retired may be given the benefit of notional promotion w.e.f. the date of promotion of his immediate junior in the reviewed panel and fixation of notional pay subject to the fulfilment of the following conditions: (i) That the officer who is immediate junior to the retired Government servant assumed charge of the higher post on or before the date of superannuation of the retired Government servant. (ii) That the said retired Government servant was clear from vigilance angle on the date of promotion of his immediate junior. (iii) A retired Government servant who is considered for notional promotion from the date of promotion of his immediate junior on the recommendation of a review DPC would also be entitled to fixation of pension on the basis of such notional pay. (iv) The notional promotion, notional pay fixation and revision of pension shall be further subject to extant rules on promotion, pay fixation and CCS (Pension) Rules, 1972. Actual increase in pension shall be given only from the date of approval of reviewed panel by the competent authority. No arrears shall be paid.
13. Another half-hearted argument which was addressed by the learned counsel for the respondent is that the disciplinary proceedings were pending against him at the time of his death, and therefore, the deceased would not be entitled to arrears with respect to promotional post w.e.f. 01.04.2017. It is a matter of record that charge sheet for the alleged misconduct was served upon the deceased-petitioner only on 22.09.2020 i.e., almost three years after the notional promotion and the disciplinary enquiry had barely commenced and had not reached any finality. It is well ordained8 in law that mere pendency or contemplated initiation of disciplinary proceedings against the candidate have absolutely no impact upon his right to be considered for promotion, or for that matter, on grant of notional promotion for consideration of the computation of the salary and other financial benefits on grant of notional promotion.
14. In view of the above, this Court finds that the respondent is squarely guilty of committing wilful disobedience of the directions of this Court as no exercise has been conducted to work out or compute the financial benefits that would have accrued to the deceased on getting notional promotion w.e.f. 01.04.2017 for the relevant period in BSF, till his death.
8 State of M.P. v. Bani Singh, 1990 Supp SCC 738; State of Kerala v. E.K. Bhaskaran Pillai (2007) 6 SCC 524 and State of Haryana v. Dinesh Kumar, 2023 SCC OnLine SC 1680
15. The respondent is directed to make the computation of consequential financial benefits that have accrued to the deceased-petitioner for getting notional promotion w.e.f. 01.04.2017 within four weeks from today in accordance with law. No further opportunity shall be granted. The Director General of National Investigation Agency shall ensure compliance of this order and the compliance report shall be filed within four weeks from today.
16. Re-notify on 01.12.2024.
DHARMESH SHARMA, J. AUGUST 20, 2024 Sadiq