Mr. R.V. Sinha, Adv v. BHARAT LAL MEENA ORS

Judgment

1. The respondent was appointed as Trained Graduate Teacher with the Directorate of Education, Government of National Capital Territory of Delhi, in 1993. He was promoted as Vice Principal on 28 December 2012. The respondent was considered

2. for promotion, by a Departmental Promotion Committee1 constituted by the Union Public Service Commission2 on 31 May 2023 for promotion to the post of Principal. The DPC found the respondent unfit. Signature Not Verified 1 ―DPC‖ hereinafter 2 ―UPSC‖ hereinafter Signed By:MEENU KALRA Signing Date:12.02.2025 13:03:57 W.P.(C) 17326/2024 Aggrieved

3. the Central Administrative Tribunal3 by way of OA 52/2024. By the impugned respondent moved thereby, judgement dated 11 September 2024, the Tribunal has allowed the OA.

4. Aggrieved thereby, the UPSC has approached this Court by means of the present writ petition. We have heard Mr R.V. Sinha for the UPSC.

5. Having done so, we find the impugned judgement of the Tribunal to be unexceptionable.

6. Prior to the meeting of the DPC, consequent to disciplinary proceedings, the respondent had been imposed a minor penalty, on 30 September 2020, of reduction to a lower scale in the time scale of pay by one stage for a period of one year without cumulative effect and without any adverse effect on pension. Inasmuch as the penalty was for one year without cumulative effect, it is clear that the currency of the penalty came to an end on or around 30 September 2021.

7. As such, nearly over 2 ½ years elapsed since then, by the time the respondent was considered by the DPC constituted by the UPSC for promotion as Principal on 31 May 2023. The instructions issued by the Department of Personnel and Training4 in its Office Memorandum dated 28 April 2014, governing the approach to be adopted by DPC while considering candidates for promotion, deals Signature Not Verified 3 ―the Tribunal‖ hereinafter 4 ―DOPT‖ hereinafter Signed By:MEENU KALRA Signing Date:12.02.2025 13:03:57 W.P.(C) 17326/2024 with the issue of whether the DPC could take into consideration a penalty which have been imposed on the officer after the currency of the penalty is over, and ordains in this regard thus: ―(i) While there is no illegality in denying promotion during the currency of the penalty, denying promotion in such cases after the period of penalty is over would be in violation of the provisions of Article 20 of the Constitution.‖

8. Clearly, therefore, the penalty imposed on the respondent on 30 September 2020 could not have been taken into account by the UPSC while assessing the respondent‘s fitness for promotion as Principal.

9. The minutes of the UPSC, which considered the case of the respondent as well as several other candidates, are on record. In the case of candidates who have been considered unfit owing to penalties which had earlier been imposed on them, it is so specifically mentioned under the column ―Assessment‖. We may, in this context, reproduce S. Nos 30, 171 and 245 of the table to the constituting Annexure 1 to the minutes of the DPC, thus:

―S. No. Name (S/Shri) 30. GHURAN JHA BHARAT LAL MEENA (ST) [D.O.B. 06.09.1966]

245. Assessment Unfit due to Penalty imposed vide order dated 07.09.2021. Unfit due to penalty imposed vide Order No. 5/13/2015/DOV/7848 dated 30.09.2020. BHARAT LAL MEENA (ST) Unfit due to penalty imposed vide Order No. F5/24/2016/DOV/7845 dated 30.09.2020.

10. Thus, it is clear that the only ground on which the respondent was found unfit for promotion was the penalty imposed on him by Signature Not Verified order 30 September 2020. This is apparent from the words ―due to‖. Signed By:MEENU KALRA Signing Date:12.02.2025 13:03:57 W.P.(C) 17326/2024

11. Mr. Sinha, learned counsel for the petitioner, valiantly sought to convince us that the Court should not interfere as the DPC had taken into account the overall record of the respondent and that, in this context, the pristine legal position is that Court should refrain from interfering in the matter.

12. In the facts of this case, we are unable to accept this contention. The DPC minutes clearly state that the respondent was considered unfit for promotion ―due to penalty imposed vide order No. F.5/13/2015/DOV/7848 dated 30 September 2020‖. The words ―due to‖ are telling. They indicate that the only reason for the respondent having been found unfit for promotion was the penalty imposed on him by order dated 30 September 2020.

13. From the time of the judgment of Vivian Bose J in Commissioner of Police, Bombay v Gorhandas Bhanji5, which was followed by the Supreme Court in Mohinder Singh Gill v Chief Election Commissioner6, the law is that an executive order has to stand or fall on the grounds contained therein. It is not open to anyone to modify or improve the order in pleadings made in Court.

14. Inasmuch as the UPSC has, in its DPC, found the respondent unfit for promotion ―due to‖ the order dated 30 September 2020 whereby he was awarded a punishment of withholding from reduction to a lower scale in the time scale of pay by one stage for one year Signature Not Verified