Sushil Kumar vs N.C.T. Of Delhi And Others
2009 Latest Caselaw 3271 Del

*             HIGH COURT OF DELHI: NEW DELHI

           Judgment reserved on: August 12, 2009
           Judgment delivered on: August 20, 2009

+                    W.P. (C) No. 659 of 2001

Sushil Kumar                             ... Petitioner
                     Through: Mr. R.P. Pandey, Advocate.

                                versus

N.C.T. of Delhi and others  ...                  Respondent
                Through: Nemo.

CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR

1.     Whether the Reporters of local papers may
       be allowed to see the judgment?

2.     To be referred to Reporter or not?

3.     Whether the judgment should be reported
       in the Digest?

SUNIL GAUR, J.

*

1. Petitioner is a Frash-cum-Chowkidar with respondent-

Delhi Scheduled Castes Financial & Development

Corporation Ltd. (hereinafter referred to as the 'respondent-

Corporation'), who was promoted to the post of Lower

Divisional Clerk on ad hoc basis for a period of six months

vide Order of 12th November, 1993 (Annexure-P-2).

2. Vide impugned order of 17th May, 1994 (Annexure- P-3),

petitioner alongwith three other employees of the

W.P. (C) No. 659 of 2001 Page 1 respondent-Corporation stood reverted to their original

posts. Petitioner claims to have made various

Representations (Annexures- P-7, P-10 & P-11) during the

period 1995-2000 against the impugned Order, but without

any success. According to the petitioner, he ranks at serial

No. 21 in the tentative seniority list as on 1st September,

1986. The grievance of the petitioner is that in the

meanwhile, his juniors have been promoted vide Order of 6th

December, 1996 (Annexure-P-5). According to the petitioner,

a three member Committee of the respondent-Corporation

had examined the Representations of petitioner and other

employees and vide Report of 8th June, 1999 (Annexure- P-

12), had declared that the Representations of the petitioner

and two other employees were justified. The contention of

the petitioner in this petition is that despite Report

(Annexure- P-12) in favour of the petitioner, impugned order

of reversion of the petitioner is not being nullified by the

respondent-Corporation and the consequential benefits have

not been extended to the petitioner. Thus, quashing of

impugned order of reversion and the consequential benefits,

are sought in this petition.

W.P. (C) No. 659 of 2001 Page 2

3. The stand taken by the respondent-Corporation in the

counter affidavit is that petitioner's name was in the surplus

staff of disbanded Engineering Wing and he could not be

considered for promotion till the adjustment was made vide

Order of 23rd July, 1997. It has been pointed out in the

counter affidavit that Sukh Sagar, Lalit Mohan and Ram

Avtar, who were junior to the petitioner were promoted

because they had cleared the typing test prior to the

petitioner, who despite Circular No. 227 of 12th September,

1996, had not conveyed his willingness to appear for the

typing test and his juniors Mam Chand, Bed Pal, Kuldeep

Singh, Dhan Bhadur and Mukesh Kumar, upon clearing the

typing test were promoted to the post of LDC on ad hoc

basis. As per the counter, petitioner was informed vide

Memorandum No. F.1(55)/92/DSFDC/7588 of 24th April, 1996,

that his request for promotion was considered and rejected

by the Competent Authority as he was in the category of

surplus staff of disbanded Engineering Wing of the

respondent-Corporation.

4. The precise stand of the respondent-Corporation is that

the question of promotion of the petitioner to the post of LDC

does not arise till his final adjustment in the regular cadre.

W.P. (C) No. 659 of 2001 Page 3 Regarding the recommendation/ Report of the Committee

(Annexure- P-12), it is stated that the Competent Authority

has to still take a decision on it. However, it has been also

stated in the counter filed by the respondent-Corporation

that the Report of the Committee (Annexure- P-12) has not

been accepted by the Competent Authority.

5. At the time of hearing of this petition, there was no

appearance on behalf of the respondents. However, liberty

was granted to both the sides to file their short written

synopsis but such a course is not adopted by either side.

6. After having heard the counsel for petitioner and upon

perusal of material on record, this Court finds that once the

Representation of the petitioner has been found to be

justified by the Committee constituted by the respondent-

Corporation, then, the respondent-Corporation cannot take a

contradictory stand in the counter affidavit filed by it

regarding the Report (Annexure - P-12) of the Committee.

One the one hand, respondent-Corporation is asserting in

Para-12 of the counter affidavit that the Competent Authority

has still to take any decision on it, whereas, in the next very

paragraph, i.e. in Para-13 of the counter affidavit, it is stated

by the respondent-Corporation that the Report of the

W.P. (C) No. 659 of 2001 Page 4 Committee is a confidential matter which has not been

accepted by the Competent Authority. No reasons for not

accepting the Report of the Committee (Annexure- P-12) are

forthcoming. Apart from this, contesting respondent-

Corporation is required to bring on record as to whether the

final adjustment of the petitioner in the regular cadre has

been made or not. Though, the stand of the respondent-

Corporation in Para-8 of the counter affidavit is that the

petitioner, despite Circular of September, 1986, did not

convey his willingness to appear for the typing test but in the

rejoinder petitioner has asserted that he had qualified the

typing test in July, 1993, and his juniors, as referred to in

Para-8 of the writ petition, had qualified the typing test in

the year 1996.

7. There cannot be an effective decision on merits in the

writ petition, when the facts are in dispute or are not clearly

brought on record. Since the contesting respondent-

Corporation has taken contradictory stand regarding the

Report of the Committee (Annexure- P-12), therefore, there

cannot be an effective decision on merits at this stage. If the

Competent Authority has to still take a decision on the

Report of the Committee (Annexure- P-12), then it needs to

W.P. (C) No. 659 of 2001 Page 5 be explained as to why there is such an inordinate delay in

doing so. Non acceptance of the Report of the Committee

(Annexure- P-12) by the Competent Authority has to be for

good reasons. To say the least, no reasons for not accepting

the Report of the Committee, are forthcoming in the counter

affidavit filed by the respondent-Corporation. What was least

expected from the respondent-Corporation was that it ought

to have placed on record the Order of the Competent

Authority declining to accept the Report of the Committee

(Annexure- P-12). Respondent-Corporation has failed to do

so, without any valid reason.

8. This Court is constrained to observe that the response

of the respondent-Corporation to this petition is not only

contradictory but dilatory one. This Court would certainly like

to know the reasons as to why the Report of the Committee

(Annexure- P-12) has not been accepted by the Competent

Authority. Since the respondent-Corporation is compelling

the petitioner to another round of litigation, therefore, it has

to be put to terms.

9. In the peculiar facts and circumstances of this case, it

would be in fitness of things to call upon the petitioner to

make a comprehensive Representation against the

W.P. (C) No. 659 of 2001 Page 6 impugned Order (Annexure-P-3) to the respondent-

Corporation in view of the counter filed by it and for this

purpose, petitioner is granted four weeks time. Once the

contesting respondent is seized of petitioner's

Representation, it is directed that the Representation of the

petitioner be decided by the respondent-Corporation by

passing a speaking order in light of this order and while

dealing with the Report of the Committee (Annexure- P-12)

in an effective manner within twelve weeks from the date of

receipt of petitioner's Representation. It will be incumbent

upon the respondent-Corporation to communicate to the

petitioner the fate of his Representation within two weeks of

taking decision thereupon.

10. This petition is allowed to the extent indicated above,

with cost of Rupees ten thousand only, to be borne by

respondent No.2.

SUNIL GAUR, J.

August 20, 2009
rs




W.P. (C) No. 659 of 2001                                     Page 7