O.P. Shukla vs Union Of India & Ors.
2009 Latest Caselaw 3465 Del

*              HIGH COURT OF DELHI: NEW DELHI

+      Writ Petition (Civil) No. 899/1999

                            Judgment reserved on: 19th August, 2009
%                           Judgment delivered on: 31st August, 2009

       O.P. SHUKLA                                     ..... Petitioner

                             Through: Mr.R.Venkataramani, Sr.Adv.
                                      with Mr.K.Joseph, Adv.
                        Versus

       UNION OF INDIA & ORS.                         ..... Respondents

                            Through: Mr.A.S.Chandhiok, ASG with
                                     Mr.Sanjay Katyal and Mr.Partap,
                                     Advs.
       Coram:

       HON'BLE MR. JUSTICE MADAN B. LOKUR
       HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers may
          be allowed to see the judgment?       Not Necessary

       2. To be referred to Reporter or not?        Not Necessary

       3. Whether the judgment should be reported
          in the Digest?                      Not Necessary



A.K. PATHAK, J.

1. The Petitioner was selected by the Union Public Service

Commission (for short referred to as "UPSC"), against the post of

Assistant Legal Advisor, a Grade IV duty post, in Indian Legal

Services along with two other candidates. However, he could join

on the said post only on 31st October, 1988 due to delay in police

verification etc. Petitioner was put on probation for a period of

two years. The probation was to expire on 31st October, 1990.

2. In the seniority list of Assistant Legal Advisor, issued on 5th

December, 1989, Mr. J.L. Minocha, a promotee officer, was

shown junior to the Petitioner. In the month of July, 1991, the

Departmental Promotion Committee (for short hereinafter

referred to as "D.P.C.") was held for filling the vacancies of

Deputy Legal Advisor, arisen during the year 1990-91. The „cut-

off‟ date for the purpose of consideration of candidates for

promotion was 1st October, 1991. Mr. J.L. Minocha, who was

working as Assistant Legal Advisor with effect from 31 st August,

1997, was considered for promotion to the post of Deputy Legal

Advisor, being eligible, having completed three years service as on

1st October, 1990, in terms of Rule 8(iii) of the Indian Legal

Service Rules, 1957 (for short hereinafter referred to as the

"Rules"). However, Petitioner was not considered as he had

neither completed the probation period nor was having the

required three years service.

3. Against the vacancies of Deputy Legal Advisor, which arose

in the year 1991-92, Petitioner was considered by the D.P.C.

even though, he had not completed the three years service. He

was considered by the D.P.C. after relaxing the shortfall of one

month in service. Recommendation of D.P.C. was referred to the

Appointments Committee of the Cabinet (for short hereinafter

referred to as "ACC") and its approval was obtained for

appointment of the Petitioner on the post of Deputy Legal Advisor

along with his juniors. Since Petitioner was in U.S.A. at that time

he was promoted immediately on his return from the U.S.A.

Petitioner joined on the said post on 2nd February, 1994.

4. On 20th May, 1994 Petitioner made a representation for

ante-dating his promotion from the date when his junior Mr. J.L.

Minocha was promoted. Vide memorandum dated 9th January,

1997 Respondent rejected the representation of Petitioner.

5. Petitioner filed O.A. No. 143/1998 before the Central

Administrative Tribunal, Principal Bench, New Delhi (for short

hereinafter referred to as "Tribunal"), inter alia, praying therein

that the memorandum dated 9th January, 1997 be quashed and

Respondent be directed to grant promotion to Petitioner with

effect from the date his junior Mr. J.L. Minocha was promoted.

6. Petitioner contended before the Tribunal that action of the

Respondent was in violation of the Department of Personnel and

Training, Office Memorandum No. 14017/82/88-Estt. (RR) dated

23rd October, 1989 read with Office Memorandum No.

AB14017/12/87-Estt. (RR) dated 18th March, 1988, which

provided that if junior officers are considered for the higher post

having completed prescribed eligibility condition, the senior

officers, who have not completed the required service but had

completed the probation period, should also be considered for the

higher post. Since Mr. J.L. Minocha, who was junior to the

Petitioner, was considered for the post of Deputy Legal Advisor

occurring in 1990-1991, therefore, Petitioner should have also

been considered and promoted.

7. It was further contended that Respondent had relaxed the

eligibility conditions in the case of Dr. Raghubir Singh and K.N.

Chaturvedi regarding their probation period. Since, same benefit

was not extended to the Petitioner he was discriminated vis-a-

vis these two officers.

8. As per the Respondent, cut-off date for the purpose of

consideration of candidature of concerned officers was fixed as 1st

October, 1990 with regard to vacancies arisen in the year 1990-

91. As on that date, Petitioner had not completed the probation

period. He was also not having three years of service in the

feeder grade, thus he was not eligible. So far as Mr. J.L. Minocha

is concerned he had completed three years of service as on 1st

October, 1990. Respondent was considered for the vacancies

arisen in the year 1991-1992 even though he had not completed

three years service. Shortfall in service was relaxed and his case

was referred to Appointments Committee of Cabinet and after

obtaining approval Petitioner was promoted to the post of Deputy

Legal Advisor, on his return from the U.S.A. Since the Petitioner

was not eligible for promotion to the post of Deputy Legal Advisor

as on 1st October, 1990 his date of promotion could not have

been antedated to 7th October, 1991 when his junior Mr. J.L.

Minocha was promoted.

9. Tribunal held that crucial cut off date for consideration of

candidates for promotion on the post of Deputy Legal Advisor was

1st October, 1991. As on that date Petitioner did not fulfil the

eligibility criteria of three years service as contained in Rule 8 (iii)

of the said Rules. Thus, Respondent cannot be found faulted in

not considering the Petitioner against the vacancies of 1990-91.

With regard to the alleged discrimination vis-a-vis Dr. Raghubir

Singh and Mr. K.N. Chaturvedi is concerned Tribunal, by

following judgment of the Supreme Court titled Chandigarh

Administration & Anr. Vs. Jagjit Singh & Anr., reported in JT

1995 (1) SC 445, held that if the order in favour of other persons

was found to be illegal or not warranted, the same cannot be

made basis for issuing a writ compelling the Respondents therein

to repeat the illegality or pass unwarranted order. Accordingly,

contention of the Petitioner regarding discrimination was

rejected. Tribunal also held that the cause of action had arisen in

the year 1991; whereas O.A. was filed in the year 1998. Even,

first representation was made by the Petitioner on 20 th May,

1994. No cogent reason was given to explain the unreasonable

delay. Thus, the O.A. was also barred by limitation.

10. We have heard learned counsel for the parties and have

perused the relevant material available on record and we find no

reason to interfere with the impugned order. In our view,

Tribunal rightly held that Petitioner did not fulfil eligibility

criteria for promotion regarding the vacancies arisen in the year

1990-91 and was not entitled to ante-dating of his promotion.

Tribunal was also right in holding that the Original Application

was barred by time.

11. Material placed on record makes it clear that the cut off

date for considering the candidates for the vacancies of 1990-91

was 1st October, 1990. Petitioner joined as Assistant Legal

Advisor on 31st October, 1988 and was put on probation for a

period of two years. The period of probation was to expire on 31st

October, 1990. As such, as on, 1st October, 1990 Petitioner had

not even completed the period of probation. He was not

confirmed on the post of Assistant Legal Advisor as on that date.

Being a probationer he was not eligible for the promotion to a

next higher post. Beside this he was not having three years of

service as on 1st October, 1990 and was otherwise not eligible to

be considered for the post of Deputy Legal Advisor in view of Rule

8(iii) of the said Rules.

12. Rule 8(iii) reads as under:-

"8(iii). To a duty post in Grade III, unless he has held a duty post in Grade IV for a total period of not less than three years; "

13. Post of Assistant Legal Advisor was in Grade IV; whereas

post of Deputy Legal Advisor was in Grade III. Thus, it is clear

that for promotion to the post of Deputy Legal Advisor from the

feeder grade of Assistant Legal Advisor a person was required to

hold the post of Assistant Legal Advisor for not less than three

years. As on 1st October, 1988 Petitioner had completed only two

years of service. This condition of three years service could have

been relaxed in view of the fact that Petitioner‟s junior Shri J.L.

Minocha had completed the prescribed eligibility condition for

promotion and was going to be considered but only if Petitioner

had completed the period of probation.

14. Para 3.1.2. of the Office Memorandum dated 18th March,

1988 reads as under:

"It may so happen that in some cases of promotion, the senior officers would not have completed the required service whereas the juniors would have completed the prescribed eligibility condition for promotion. In such cases, seniors will be left out from consideration for the higher post. To avoid such a situation, a suitable note may be inserted in the recruitment rules so that the seniors who have completed the

probation period, also be considered where the juniors who have completed the requisite service are being considered"

15. Bare perusal of the above Office Memorandum makes it

clear that a senior officer can be considered even if he has not

completed three years services, while his juniors are being

considered, only in case he had completed the probation period.

Admittedly, Petitioner had not completed probation period as on

1st October, 1990 and eligibility condition in his case could not

have been relaxed.

16. We are of the view that this writ petition is devoid of merits.

Dismissed.

A.K. PATHAK, J

MADAN B. LOKUR, J

August 31st, 2009 rb