ORDER
K. Ramamoorthy, J.
1. The petitioner, who is working in the Delhi Electric Supply Undertaking, was promoted adhoc Superintendent on 6.12.1885 along with other officials similarly situated. Except the petitioner, services of the others were regularised on the post of Superintendent vide order dated 17.9.1987. The case ofthe petitioner was dealt with separately because a show cause notice was issued to him in dated 12th August, 1986 and the enquiry proceedings were pending for nearly more than 9 years and the Disciplinary Authority imposed punishment on 19.6.1995:
“Whereas disciplinary proceedings were initiated against Shri S.C. Bhagwani, Supdt. (T), under Regulation7 of DESU (DMC) Service (C&A) Regulations, 1976 vide Memo No. VC97/86 Vig./VII/26452646 dated 12.8.86.
And whereas an Inquiring Authority was appointed to enquire into the charges framed against the said Shri S.C. Bhagwani, Supdt. (T) vide memo No. VC9697/2931/87, 22/88Vig.VII RC19/85/212 dt. 8.7.88 and VC9697/87, 22/88, 2931/87/Vig./VII/RC29/85 Vig./PC/253 dt. 23.9.91.
And whereas the undersigned agreed with the findings of the Inquiring Authority and hold the charges proved against the said Shri Bhagwani.
And whereas taking into account totality of the facts and circum stances of the case, the undersigned, the competent authority, proposed to impose the penalty of ‘Reduction in rank to the next lower post’ on the said Shri S.C. Bhagwani, Supdt. (T).
And whereas the said Sh. S.C. Bhagwani was called upon to show cause vide Memo No. VC9697/86,2931/87Vig./MAK 15/23 Dt. 6.4.95 as to why the proposed penalty should not be imposed upon him.
And whereas the said Shri Bhagwani replied to this show cause memo vide his representation dt. 4.5.95.
And whereas the representation of Shri S.C. Bhagwani has been carefully considered by the undersigned taking into account all the facts and circumstances of the case.
And whereas it is observed that no now facts have been brought to the notice of the undersigned.
And, therefore, the undersigned confirms the penalty of ‘Reduc tion in Rank to next lower post’ to be imposed on Shri S.C.Bhag wani, Supdt. (T), E.No. 4203 and orders accordingly.”
2. There was an appeal by the petitioner and the Appellate Authority General Manager (E) passed the order on 9.8.1985 :
“Whereas the penalty of `Reduction in Rank to next lower post’ was imposed on Sh. S.C. Bhagwani, Supdt. (T) vide order No. VC9697/86,2931/87Vig./MAK15/173 dated 19.6.95.
And whereas the said Sh. Bhagwani preferred his appeal dated 26.6.95 against the above said penalty order.
And whereas the competent authority i.e., GM(E) has carefully gone through the contents of the said Appeal and to the facts of the case.
And whereas taking into account the totality of the circumstances of the case and the fact that the case was initiated 12/13 years ago, the Competent Authority feels that the ends of justice would be met if the penalty is reduced to that of ‘Stoppage of two increments without cumulative effect.’
And, therefore, the undersigned orders accordingly.”
3. The same officer General Manager (E) passed an order on 12.2.1996 purporting to review or correct the order dated 9.8.1985 and converted the punishment from stoppage of two increments without cumulative effect into from stoppage of promotion for two year. It is common ground that it is only a minor penalty.
4. Thereafter the services of the petitioner on the post of Superintendent was regularised on 16.7.1996 with effect from that date:
“On the basis of recommendations of the D.P.C. which met on 28.6.1996, the services of Shri S.C. Bhagwani, Supdt. (Tech.) Emp. No. 4203, working on Adhoc basis as such since 6.12.85 are hereby regularised with immediate effect.
This issues with the approval of A.G.M. (A).”
5. The petitioner has filed the writ petition praying for the following reliefs :
“(a) This Hon’ble Court may be pleased to issue a writ of certiorari quashing the order/communication dated 16.7.1996;
(b) A writ of mandamus directing the respondent to regularise the petitioner with effect from 17.9.1987 when all other candidates promoted alongwith the petitioner were regularised;
(c) A writ of certiorari quashing the illegal and arbitrary order dated 12.2.1996 by which the respondent No.1 has enhanced the penalty imposed upon the petitioner from the stoppage of 2 incre ments to stoppage of promotion for 2 years;
(d) A writ of mandamus directing the respondent No. 1 to promote the petitioner to the post of Asstt. Engineer from the date when the petitioner’s immediate juniors were promoted and to grant him his seniority by placing him below Shri M.N. Saxena and above Sh. S.C. Bhagwani in the seniority list of Asstt. Engineers.”
6. The learned counsel for the petitioner Ms.Maninder Acharya submitted that there had been enormous delay on the part of the respondents in completing the proceedings and passing the order of punishment and that had considerably prejudiced the rights of the petitioner. The learned counsel submitted that the order dated 12.2.1996 passed by the General Manager (E) was without jurisdiction as per the Delhi Electric Supply Undertaking (DMC) Service (Control and Appeal) Regulations, 1976 the General Manager (E) would have the power of review only with reference to orders passed by an officer subordinate to him. According to the learned counsel, inasmuch as the order dated 9.8.1985 was passed by General Manager (E) he has no power to review his own order. Therefore, the order dated 12.2.1996 would fall to the ground on the ground of complete lack of jurisdiction. According to the learned counsel, it is well settled that no Administrative Authority would have any inherent power of review unless the Statute concerned would vest him the power of review. The concept of inherent power is completely alien to the power exercised by an Administrative Authorities.
7. The learned counsel submitted that the petitioner’s services were regularised w.e.f. 16.7.1996 and by doing so the petitioner had been the subject of double jeopardy, in that the petitioner has been deprived of his regularisation to the post of Superintendent and his further promotion has also been affected by the punishment imposed.
8. The learned counsel for the respondents Mr. Jayant Nath submitted that the General Manager (E) had to pass the order dated 12.2.1996 modifying or correcting the order dated 9.8.1985 because the order passed by the General Manager (E) on 9.8.1985 could not be given effect to as the petitioner had reached the maximum in the scale of pay. Therefore, according to Mr. Jayant Nath, the learned counsel for the respondents what was done by the General Manager (E) was to give effect to the order of punishment imposed on the petitioner by him on 9.8.1985 as otherwise the order passed by him earlier on 9.8.1985 would become a brutumfulmen and the petitioner would go scot free as if there is no punishment imposed on him. According to the learned counsel, the law would not encourage such a situation, a vacuum which could be taken advantage of by the petitioner. According to the learned counsel, the petitioner does not challenge the order dated 9.8.1985.
9. The learned counsel submitted that while making the adhoc promotion on 16.12.1985 there was no consideration of the officers on the merits and no regular DPC constituted. Subsequently, when other officers were regularised by order dated 17.9.1987 the matter was considered by the DPC on merits with reference to the suitability and as there was disciplinary proceedings pending against the petitioner his services could not be regularised on 17.9.1987.
10. To this particular point the learned counsel for the petitioner draw my attention to paragraphs 3 and 4 in the writ petition. In paragraph 3 it is stated :
“That as per Section 96 of Delhi Municipal Corporation Act, no appointment to the category `A’ post could be made without the approval of U.P.S.C. It is because of this reason that the peti tioner along with his 10 other colleagues was promoted to the post of Superintendent vide order dated 6.12.1985 on ad hoc basis only.”
And with reference to what happened in 1987, it is stated in paragraph 4 :
“That in the year 1987 D.M.C. Act was amended and the post of Superintendent became category `B’ post. The approval of U.P.S.C. did not remain essential any more. The candidates who were promoted vide order dated 6.12.1985 were therefore regularised vide order dated 17.9.1987. Copies of relevant amended as well as unamended provisions of D.M.C. Act are annexed as Ann. P/7 (colly) while the copy of order dated 17.9.1987 regularising the petitioner’s colleagues in the post of Superintendent is annexed as Ann.P/8.”
In meeting this point in the counter affidavit it is stated :
“23. That the contents of paras 2 and 3 of the petition need no comments. However, it is submitted that the appointment to cate gory A post on regular basis could only be made by the DESC in consultation with UPSC at that time.”
In answer to paragraph 4 it is stated :
“That the contents of para 4 of the petition need no comments. It is submitted that the petitioner could not be promoted vide order dated 17.9.87 because there was a departmental inquiry pending against the petitioner.”
Therefore, the factual position was that there was no meeting of any DPC when the regularisation was made on 17.9.1987.
11. In the light of this, the questions that would arise for consideration are (1) whether the petitioner shall be entitled to regularisation w.e.f. 17.9.1987. (2) whether the order dated 12.2.1996 of General Manager (E) is within his jurisdiction and could be sustained in law.
12. The fact that the petitioner was promoted adhoc on 6.12.1985 is not in any dispute. His colleagues who were promoted along with him on 6.12.1985 were regularised on 17.9.1987 without any DPC cannot be a matter of any dispute. When disciplinary action is pending against any civil servant, specially after the civil servant had been promoted on adhoc basis who is regularising his services a sealed cover procedure should have been followed and that was not done.
13. The regularisation of the petitioner in the post of Superintendent is discrete and disparate from his being visited with punishment in the enquiry proceedings. The respondents had clubbed the two things and had denied the petitioner his regularisation in the post of Superintendent and had imposed punishment of promotion for two years. On these facts the ancillary question that would arise for consideration is whether the period of two year mentioned in order dated 12.2.1996 would have operation from the date of regularisation in 1987 or from 12.2.1996. If the contention of the petitioner that he will be entitled to regularisation from 17.9.1987 is accepted, the two year period will operate only from two years from 1987 and he would be entitled to further promotion from the year 1990.
14. The learned counsel for the petitioner relied upon the judgment of the Supreme Court reported in Md. Habibul Haque Vs. Union of India and Others, 1994 (5) S.L.R. 152. The facts as noticed by the Supreme Court in that case are :
“This appeal by special leave arises from the Judgment of the Division Bench of the High Court of Calcutta, dated December 23, 1982 in F.M.A.T. No. 3515/80. The appellant, while working as a Preventive Officer, Grade II, was dismissed from service by way of disciplinary measure. But, on appeal the Division Bench of the High Court set aside the order of dismissal and remitted the matter to the disciplinary authority to consider the case on all aspects and pass appropriate order. Thereafter, the disciplinary authority by Order dated August 9, 1973 considered the matter and imposed the penalty of reducing the pay for one year with cumulative effect. Thereafter, the appellant was promoted as Preventive Officer, GradeI by proceedings dated August 9, 1974. Thereafter, he approached the High Court claiming seniority from the date to which he is eligible for fitment as Preventive Officer, Grade I. The learned Single Judge issued the writ and directed the authorities to grant him seniority according to the relevant rules. On appeal, the Division Bench, relying upon the procedure prescribed in the Circular F.No. 3/5/69Ad. IIIA, dated April 25, 1972 and placing reliance on paragraph 7, held that since the appellant was imposed punishment of withholding scale of pay for one year, he was not eligible to count the seniority from the date on which his junior was promoted and that therefore, the fixation of seniority with effect from August 9, 1974 was in order. Thus, this appeal by special leave.”
The Supreme Court dealing with the imposition of punishment held:
“It is seen that in the decision taken by the Department on June 6, 1968 reorganising the preventive Officers cadre and sanction of the posts, it was specifically stated that the creation of the usual scale of pay of the allowances of 245 earmarked posts of preventive officersgrade I and consequent abolition of 245 posts of preventive OfficersGrade II as on that date are entitled to be considered for fitment as and when the vacancies would arise. But for the removal of the appellant from service,he would have been entitled to be considered for fitment in the grade of Pre ventive Officers, Grade I when his juniormost officer, namely, Sarup Kumar Ghosh was considered and promoted w.e.f. February 29, 1968. The High Court fell in error in considering that there was a punishment imposed upon the appellant in the order dated August 9, 1973. It is seen that the punishment imposed was only reduc tion of scale of pay for one year with cumulative effect. That does not have the effect of reducing his seniority nor would it be a punishment of reduction of seniority of any placement which the appellant would be entitled to hold in the order of seniori ty. Under those circumstances, we are of the view that the appel lant is entitled to be adjusted in the cadre of Preventive Officers, Grade I w.e.f. February 29, 1968, the date on which his immediate junior was considered and was given fitment as Preven tive Officer, GradeI.”
The learned counsel for the petitioner referred to Shiv Kumar Sharma Vs. Haryana State Electricity Board, Chandigarh and Others, AIR 1988 S.C. 1673. The facts as noticed by the Supreme Court are : “The appellant was appointed an Assistant EngineerII with effect from June, 10, 1963 in the Punjab State Electricity Board on probation for two years which ended on June 10, 1965. After the bifurcation of the Punjab State Electricity Board, the service of the appellant was allocated to the Haryana State Electricity Board, hereinafter referred to as `the Board’. As a result of a disciplinary proceeding held against the appellant, on April 15, 1968 a minor penalty for the stoppage of one increment without any future effect was imposed on the appellant by the Board. After the expiry of one year, the appellant was, however, given the increment.”
With reference to the confirmation and the penalty, the Supreme Court observed :
“The only point that is involved in this appeal is whether the Board was justified in confirming the appointment of the appel lant in the post of Assistant Engineer, Class II, with effect from December 1, 1969 and placing him below his juniors namely, respondents Nos. 2 and 4 to 19, in the seniority list. As has been noticed already, there is no material to show why the appel lant was confirmed in the post with effect from Dec. 1, 1969, when he had completed his probationary period of two years satis factorily. It is submitted on behalf of the Board that as the minor penalty was imposed on the appellant by way of stoppage of his increment for one year, he was confirmed with effect from Dec. 1, 1969 and placed below the respondents Nos. 2 and 4 to 19 in the seniority.
We are unable to accept the above contention. The penalty was imposed on April 15, 1968, and, as a result of which, he was deprived of the monetary benefit of one increment for one year only. The penalty by way of stoppage of one increment for one year was without any future effect. In other words, the appellant’s increment for one year was stopped and such stoppage of increment will have no effect whatsoever on his seniority. Accordingly, the Board acted illegally and most arbitrarily in placing the juniors of the appellant above him in the seniority list and/or confirming the appellant in the post with effect from Dec. 1, 1969, that is, long after the date of confirmation of the said respondents Nos. 2 to 19. The question of seniority has nothing to do with the penalty that was imposed upon the appellant. it is apparent that for the same act of misconduct, the appellant has been punished twice, that is, first, by the stop page of one increment for one year and, second, by placing him below his juniors in the seniority list.”
No exception could be taken by anybody to the ratio laid down by the Supreme Court.
15. Mr. Jayant Nath, the learned counsel for the respondents, submitted that a civil servant who had been found guilty of charges has to be punished and he has to face the consequences and, therefore, when he has been deprived of his regularisation and when he was imposed a punishment for the mis demeanour committed by him there is no question of the applicability of the double jeopardy. The learned counsel referred to the judgment of the Supreme Court referred to in Union of India, etc. Vs. K.V. Jankiraman, etc., . Dealing with this aspect, the Supreme Court observed :
“According to us, the Tribunal has erred in holding that when an officer is found guilty in the discharge of his duties, an imposition of penalty is all that is necessary to improve his conduct and to enforce discipline and ensure purity in the adminsitra tion. In the first instance, the penalty short of dismissal will vary from reduction in rank to censure. We are sure that the Tribunal has not intended that the promotion should be given to the officer from the original date even when the penalty imparted is of reduction in rank. On principle, for the same reasons, the officer cannot be rewarded by promotion as a matter of course even if the penalty is other than that of the reduction in rank. An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of a misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is, therefore, no discrimination when in the matter of promotion, he is treated differently. The last that is expected of any administration is that it does not reward an employee with promotion retrospectively from a date when for his conduct before that date he is penalised in praesenti. When an employee is held guilty and penalised and is, therefore, not promoted at least till the date on which is is penalised, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct. In fact, while considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified. If, further, the promoting authority can take into consideration the penalty or penalties awarded to an employee in the past while considering his promotion and deny him promotion on that round, it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date because of the pendency of the proceedings, although it is for conduct prior to the date the authority considers the promotion. For these reasons, we are of the view that the Tribunal is not right in striking down the said portion of the second subpara graph after clause (iii) of paragraph 3 of the said memorandum. We, therefore, set aside the said findings of the Tribunal.
In the circumstances, the conclusions arrived at by the Full Bench of the Tribunal stand modified as above. It is needless to add that the modifications which we have made above will equally apply to the Memorandum of January 12, 1988.”
The learned counsel Mr. Jayant Nath referred to Union of India and Others Vs. K. Krishnan, . The Supreme Court took the same view and the observation is relevant : “We have considered the matter closely and in our opinion the view taken by the Tribunal both in the impugned judgment and in the earlier decisions holding that as a result of the provisions of Rule 157 forbidding the promotion of a State employee during the currency of the penalty results in a second punishment, is not correct. There is only one punishment visiting the respondent as a result of the conclusion reached in the disciplinary pro ceeding leading to the withholding of increment, and the denial of promotion during the currency of the penalty is merely a consequential result thereof. The view that a Government servant for the reason that he is suffering a penalty or a disciplinary proceeding cannot at the same time be promoted to a higher cadre is a logical one and no exception can be taken to Rule 157. It is not correct to assume that Rule 157 by including the aforemen tioned provision is subjecting the Government servant concerned to double jeopardy. We do not find any merit in the argument that there is no justification or rationale behind the policy; nor do we see any reason to condemn it as unjustified, arbitrary and violative of Articles 14 and 16 of the Constitution of India. On the other hand, to punish a servant and at the same time to promote him during the currency of the punishment may justifiably be termed as self contradictory. The impugned judgment is, there fore, set aside.”
16. The petitioner must have been considered along with his colleagues when order was passed on 17.9.1987. In my view, the respondents had committed an error in not regularising the services of the petitioner when they regularised the services of his colleagues by order dated 17.9.1987. The writ petitioner is justified in praying for quashing the order dated 12.2.1996 and claiming regularisation w.e.f. 17.9.1987.
17. The point relating the want of jurisdiction on the part of the General Manager (E) when he passed the order on 12.2.1996 was taken by the learned counsel for the petitioner on the basis of Rule 17 of the Rules which has already been adverted to. It is no doubt true that an Administrative Authority will have no power unless the power is given to him by the Statute to review an order passed by him. But what has happened in this case is suigeneris and the situation has to be remedied otherwise the civil servant who had been given a punishment would go as if there was no punishment. What the General Manager (E) had done was only in the nature of correcting a clerical error, as it were, and, therefore, I do not find any substance in the contention on behalf of the petitioner that the General Manager (E) had no jurisdiction to pass the order dated 12.2.1996. Yet another on this aspect was that assuming the General Manager (E) had power to review the order dated 9.8.1985 he had not followed the procedure prescribed and he had violated the principles of natural justice and, therefore, the order is vitiated. That argument cannot be accepted in view of the fact that the General Manager (E) had only tried to correct an error on the materials available before him. Consequently, the order dated 12.2.1996 imposing the punishment of stoppage of promotion to the petitioner for two years has to be sustained.
18. The respondents had taken very long time for concluding the proceedings. If the punishment had been imposed in 1987 or 1988 the petitioner would have been entitled to be considered for promotion in 1989 or 1990. Now his turn for promotion would come only in 1998 if the order is to be given effect for two year from 1996. That cannot be the position in law. The two year period mentioned in the order dated 12.2.1996 would come to an end in 1989 and the petitioner would become entitled for consideration of promotion from 1990.
19. Accordingly, the writ petition stands allowed. The petitioner will be entitled to regularise from 17.8.1987 and he would be entitled for consideration for promotion from 1990 and the respondents shall pass the consequential orders granting regularisation of the petitioner w.e.f. 17.9.1987 and consider his case for promotion on that reckoning on or before 30.4.1999. There shall be no order as to costs.