Dinesh Kumar vs Delhi Development Authority & Others

,,,,

A.K. Bishnoi, Member (A)",,,,

The brief facts of the case, as stated by the applicant, are as follows:",,,,

(i) The applicant belongs to the SC category and joined the respondent organization in the year 1989 as a Steno Typist. Thereafter, he climbed up in",,,,

the hierarchy and reached to the level of Deputy Director (Ministerial). On 02.09.2015, he was issued a minor penalty charge sheet and after being",,,,

given an opportunity of being heard after issuance of the charge sheet, was awarded the penalty of censure on 10.05.2016. Meanwhile, a DPC was",,,,

convened for promotion to the post of Director (Ministerial) on 4.2.2016 but as proceedings against the applicant were pending at that time, his case",,,,

was kept in a sealed cover.,,,,

(ii) Another DPC was held on 21.02.2017 after the expiry of the period of penalty imposed on the applicant in which the applicant was held unfit for,,,,

promotion though certain officials junior to the applicant were found fit and promoted vide order dated 06.04.2017. They have been impleaded as,,,,

respondents in the present OA.,,,,

(iii) Aggrieved by this action, the applicant filed OA No. 1436/2018 challenging the recommendations of the DPC which was dismissed on 11.04.2018",,,,

as withdrawn with the liberty to the applicant to challenge the final order passed by the official respondents as also the recommendations made by the,,,,

DPC.,,,,

The facts of the case, as narrated above, are not in dispute.",,,,

The applicant through the present OA has challenged the recommendations of the DPC held on 21.02.2017 mainly on the ground that requirements,,,,

of conformance to benchmark and assessment of merit were not applicable to the applicant in view of the office memoranda dated 03.10.2000 read,,,,

with 22.07.1997 issued by the Department of Personnel &Training (DoP&T).,,,,

In view of the facts and reasons given by the applicant, he has sought the following reliefs:",,,,

“(i) Set-aside the recommendation of the DPC dated 23.2.2017 held on 21.02.2017 declaring the Applicant UNFIT on the ground of not having the,,,,

Bench Mark & Merit without considering the Office Memorandum dated 3.10.2000 and Office Memorandum dated 22.07.1997 which prescribe that,,,,

for consideration of SC/ST candidates the Bench Mark & Merit will not be applicable for the purpose of promotion and order of promotion dated,,,,

6.4.2017 of Respondent No. 2 & 3 juniors to the Applicant.,,,,

(ii) Call for the record of the case.,,,,

(iii) pass such other and further order as may deem fit and proper.â€​,,,,

Counter replies have been filed by the respondents. The official respondent, namely, DDA, while replying to the statements made by the applicant",,,,

in his OA, has pointed out that out of the APARs of the applicant for the previous five years, i.e., 2012-2015, the grading was “very goodâ€​ for one",,,,

and a half years, “good†for two years, “average†for four months and for the remaining period “NRC†was placed on record. It is also",,,,

being contended that for the post of Director (Ministerial) which falls in Group A, the benchmark is “very goodâ€​.",,,,

On the issue relating to benchmark or merit raised by the applicant, it has been contended that it is totally misplaced and unwarranted considering",,,,

that the applicant was found unfit not because of benchmark or merit but due to his unsatisfactory conduct and performance as recorded in the,,,,

minutes of the DPC. It has been averred that the DPC after having taken into account all factors relating to the conduct and service record of the,,,,

applicant has found him unfit.,,,,

Respondent nos. 2 and 3 in their replies have also contested the claim of the applicant mainly on the ground that they were found fit on the basis of,,,,

seniority and merit which was not the case for the applicant who was found unfit.,,,,

Sh. Apurb Lal, learned counsel appearing on behalf of the applicant elaborated upon the contentions made in the OA while substantially relying",,,,

upon OMs dated 03.10.2000 and 22.07.1997 referred to in Para 3 above.,,,,

Sh. M.S. Reen, learned counsel appearing for Respondent no. 1, in his arguments forcefully contended that reference to the OMs cited above was",,,,

entirely misplaced and that these OMs, in no way, dispense with the need to assess the seniority or merit of any candidate belonging to the SC or ST",,,,

category.,,,,

We have carefully gone through the pleadings on record as also the arguments advanced by the learned counsel on both the sides.,,,,

For clarity, the relevant portions of the OM dated 22.07.1997 issued by Ministry of Personnel, Public Grievances & Pensions, DoP&T are",,,,

reproduced below:,,,,

“3. It has accordingly been decided to withdraw the instructions contained in this Department’s O.M. Bo. 8/12/69-Estt.(SCT) dated 23/12/70,,,,

and O.M. No. 36021/10/76-Estt. (SCT) dated 21.1.1977, in so far as these provide for lower qualifying marks for Scheduled Castes/Scheduled Tribes",,,,

candidates in departmental qualifying/competitive examinations for promotion. Similarly, the relevant portions of para 6.3.2 of the DPC guidelines",,,,

circulated vide this Department’s O.M. No. 22011/5/86-Estt.(D) dated 10.4.1989, to the extent that they provide for consideration of Scheduled",,,,

Castes/Scheduled Tribes candidates without reference to merit and the prescribed “bench markâ€​ , are hereby rescinded.",,,,

It is clarified that the effect of these instructions is that henceforth there shall be no separate standards of evaluation for candidates of the,,,,

Scheduled Castes/Scheduled Tribes for promotion, and assessment of all candidates for this purpose will be with reference to uniform standards. Any",,,,

other instructions of the Government, which provide for lower qualifying marks/lesser standards of evaluation in matters of promotion for candidates",,,,

belonging to Scheduled Castes/Scheduled Tribes, may also be treated as having been modified to this extent.",,,,

These instructions take immediate effect.â€​,,,,

Relevant portions of OM dated 03.10.2000 read as under:,,,,

“3. In pursuance of the enabling proviso of Article 335 of the Constitution, it has now been decided to restore, with immediate effect, the",,,,

S.No.,Period,Place of posting,"Order/E.O.

No. & Date","Total

days

10.,"12.04.12 to

28.05.12","Vigilance

Deptt.","529 dt.

09.04.12",57 days

11.,"29.05.12 to

06.06.12",Housing Deptt.,"765 dt.

28.05.12",07 days

12.,"07.06.12 to

12.06.12","Personnel

Branch","F.1(142)07/T

&P/DD’s/41

2 dated 04.06.12",05 days

13.,"13.06.12 to

03.07.12",Lands Deptt.,"826 dt.

12.06.12",20 days

14.,"04.07.12 to

17.07.12","Personnel

Branch","PS/Dir.(RL)

DDA/2011/3 39

dated 04.07.12",13 days

15.,"19.07.12 to

27.08.12",Lands Deptt.,1038 dt. 18.07.12,38 days

16.,"28.08.12 to

10.03.13","Personnel

Branch","PS/Dir.(RL)

DDA/2012/5 01

dated 23.08.12","192 days

(Under

posting )

17.,11.03.13,Training Cell,"368 dt.

08.03.13","Upto May

‘14

2/206,"V.K.

Chopra S/o

Sh. Amolak

Ram

Chopra",FIT,,

3/208,"Anil

Sharma S/o

Shri Daulat

Ram

Sharma",FIT,,

4/210,"Gian Chand

Sharma S/o

Shri Khubi

Ram

Sharma",FIT,,