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The Promotion Not Only Depends Upon Eligibility, but It Also Depends Upon Availability of Vacancy: Delhi High Court

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EXCERPT

This petitioner had filed the petition seeking his promotion to the post of Judicial Assistant with effect from July 05, 2008. 

FACTS

The petitioner was appointed as LDC or Lower Division Clerk in the Office of the District and Sessions Judge on July 05, 2003. He was charge sheeted for the illegal supplying of uncertified copies of order while working as Ahlmad, in the Court of then learned Additional Sessions Judge, Patiala House Courts, New Delhi. The charge sheet resulted in a penalty of stoppage of two increments. Based on an appeal filed by the petitioner against the order of the penalty, it was converted and modified as withholding of one increment. On August 23, 2017, an order was issued by the respondent promoting 838 Junior Judicial Assistants to the post of Judicial Assistants from different dates. The case of the respondent was that the petitioner had been given a promotion to the post of Judicial Assistant with effect from July 01, 2016, on the petitioner serving the penalty period.

ARGUMENTS BEFORE THE COURT

The counsel contended that the petitioner had completed five years of service as Junior Judicial Assistant (LDC) for being promoted as Judicial Assistant (UDC) on July 05, 2008. Many of his colleagues have been granted promotion from that date. It was also submitted that, as there is no charge sheet issued pending on July 05, 2008, and does not impede for the petitioner to be appointed as Judicial Assistant. 

The counsel for the respondent, on the other hand, contended that the petitioner had been rightly given a promotion with effect from July 01, 2016, when the penalty had ceased to operate.

COURT’S OBSERVATION

Based on the submissions and contentions, the court observed that the only issue was whether the petitioner is entitled to promotion with effect from July 05, 2008, or July 01, 2016. The charge sheet which had been issued to the petitioner was in the year 2009. The eligibility for promotion from the post of Junior Judicial Assistant to Judicial Assistant is five years. The petitioner had completed five years on July 05, 2008. In a normal course, on the issuance of a charge sheet, the recommendation of the DPC is kept sealed, but the promotion, in this case, being retrospective, the position as existing on July 05, 2008, needs to be seen. The petitioner was neither under suspension nor any prosecution for a criminal charge was pending. The plea of Mrs. Ahlawat was that, it is only after the penalty ceased to operate, the promotion was given would have been justified if any of the three conditions of Para 2 of OM dated September 14, 1992, had existed on July 05, 2008. But the court observed that none of the three conditions existed. In normal circumstances also, the DPC proceedings would not have been put in a sealed cover and the petitioner would have been promoted.

COURT’S DECISION

The court found that the present petition deserved to be allowed and the petitioner shall be entitled to promotion to the post of Judicial Assistant with effect from July 05, 2008, with all consequential benefits but with 50% back wages. The 50% back wages were for the reason that in the year 2009, a charge sheet was filed, which culminated in a penalty of stoppage of one increment without cumulative effect, unlike a case where the charges are not proved.  

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