Delhi High Court
R.N. Chippa vs Union Of India & Ors. on 29 January, 2009
Author: A.K.Sikri
Reportable
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP (C) No. 10524/2005
and
WP (C) No. 18906/2006
% Decided on : January 29, 2008
1. WP (C) No. 10524/2005
R.N. Chippa . . . Appellant
through : Mr. Sudarshan Rajan, Advocate
VERSUS
Union of India & Ors. . . . Respondents
through : Mr. H.K. Gangwani, Advocate
for the respondent Nos. 1 & 2.
Mr. L.R. Khatana, Advocate
for the respondent Nos. 3 to 5.
2. WP (C) No. 18906/2006
R.N. Chippa . . . Appellant
through : Mr. Sudarshan Rajan, Advocate
VERSUS
Union of India & Ors. . . . Respondents
through : Mr. H.K. Gangwani, Advocate
for the respondent Nos. 1 & 2.
Mr. L.R. Khatana, Advocate
for the respondent Nos. 3 to 5.
CORAM :-
THE HON‟BLE MR. JUSTICE A.K. SIKRI
THE HON‟BLE MR. JUSTICE SURESH KAIT
1. Whether Reporters of Local newspapers may be allowed
to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the Judgment should be reported in the Digest?
WP (C) Nos. 10524/2005 & 18906/2006 nsk Page 1 of 15
A.K. SIKRI, J. (ORAL)
1. Pendulum has gone from one end to the other in this case fought by
the petitioner for the last number of years. May be these are the
vicissitudes of a litigation and one cannot help the situation in which
the petitioner is placed today. We say so on taking realistic view of
the matter in the light of law on the subject, as laid down by the
Supreme Court. The petitioner, therefore, has to eschew the harsh
reality, though it appears to be somewhat inequitable in his case.
2. It is not necessary for us to spell out the factual matrix of this
circuitous litigation in great detail as the Full Bench of the Central
Administrative Tribunal (CAT) has delineated those facts with
substantial clarity and without compromising on details. We,
therefore, shall state the facts in a capsulated manner, but not at the
cost of clarity at the same time. While doing so, we may start with
the dates of events, as are deciphered by the learned Full Bench of
the CAT in its impugned judgment dated 3.5.2005, because the
glimpse thereof tells the tale behind this litigation.
1987 There were 11 posts of Research Officer (Map) in the
year 1987. All the 11 posts were filled by the regular
incumbents.
11.3.1987 One Shri Mohd. Abbas, Research Officer (Map) went
on deputation to the post of Research Officer
(Drawing)
29.9.1987 Against this vacancy, Shri M.L. Kumawat was
promoted as Research Officer (Map)
1989 One Shri S.D. Tyagi, Research Officer (Map) was
promoted as Map Officer.
25.9.1989 The petitioner was promoted as Research Officer
(Map) in a temporary capacity until further orders
after superseding his seniors.
1990-91 Six temporary posts of Research Officer (Map) were
created in connection with 1991 Census.
10.3.1992 Shri Mohd. Abbas was reverted back to his cadre post
of Research Officer (Map) on completion of his
deputation period
18.5.1992 Seniority List of Research Officer (Map) was issued
wherein the petitioner, Respondent No.3 in the
second OA is shown at Serial No. 12 (meaning thereby
11 regular posts of Research Officer (Map) were
already occupied by the persons above the petitioner
and he was spare being over and above the
sanctioned strength of 11. It is clear he was adjusted
against the newly created temporary posts of 1990-91
in the year 1992.
31.12.1993 The six temporary posts came to an end. Accordingly,
the petitioner, who was at Serial No. 12 in the
seniority list of Research Officer (Map) and junior
most, was reverted back to the post of Senior
Geographer.
31.1.1994 Shri R.P. Singh took charge of higher post of Map
officer on promotion thus 1 vacancy of Research
Officer (Map) became available on 31.1.1994.
6.10.1994 The petitioner proceeded on deputation to the post of
Research Officer (Drawing) (without challenging his
reversion)
December Three persons, namely, Shri R.P. Mishra and Shri K.C.
1994 Sharma Bhagabati (applicant Nos. 1 & 2) in OA No.
505/2004 along with one Shri R.K. Chourajit Singh,
Senior Geographers were promoted to the posts of
Research Officer (Map). The petitioner was
considered but not recommended by the DPC.
June 1995 The petitioner filed OA No. 1168/1995 without
impleading applicant Nos. 1 & 2 who had already
been promoted as Research Officers (Map) in the
meantime after they were duly selected by the DPC.
They had thus acquired vested right on the said posts
and were necessary parties.
28.7.1997 Applicant No.3 was promoted as Research Officer
(Map) on regular basis (even at this stage the
petitioner was considered but not recommended by
the DPC) but neither these facts were brought to the
notice of Hon‟ble Tribunal by the petitioner nor by
the official respondents.
3. To sum up the factual narration, as described in the aforesaid
sequence, the first basic fact which is to be borne in mind is that there
are 11 posts of Research Officer (Map). The feeder cadre from where
promotions to Research Officer (Map) are made is known as Senior
Geographer. The petitioner, in the year 1989, was working as Senior
Geographer and was eligible for consideration to the post of
Research Officer (Map). It is not in dispute that all 11 posts were
filled up and occupied by the regular incumbents. However, on
11.3.1987, one Mr. Mohd. Abbas went on deputation and against his
vacancy Mr. M.L. Kumawat was promoted as Research Officer. In
1989, another Research Officer, namely, Shri S.T. Tyagi was
promoted to the next higher post of Map Officer. With his
promotion, one vacancy of Research Officer (Map) became
available. Petitioner was considered along with others by the
regularly constituted Departmental Promotion Committee (DPC),
which recommended the name of the petitioner, though there were
certain senior officers also. Thus, the petitioner was found to be
more meritorious than other officers, including respondent Nos. 3 to
5 herein, and was promoted as Research Officer (Map) vide orders
dated 25.9.1989. A notification to this effect was also issued
sometime in November 1989. In the year 1990-91, six more
temporary posts of Research Officer (Map) were created to cope
with the work of 1991 census. These temporary posts were time
bound and after the census work was to be over, these posts were to
come to an end, which happened on 31.12.1993
4. Coming back to the case of the petitioner, on 10.3.1992, Shri Mohd.
Abbas, who had gone on deputation, joined the parent cadre after
the completion of his deputation period. He was, as noticed above,
working on regular basis as Research Officer (Map) and was sent on
deputation in the year 1987. With the joining of Mr. Abbas and his
occupying the position, the petitioner became surplus as he was
junior most and on Mr. Abbas joining, all 11 posts stood occupied.
The petitioner was, however, not reverted at that time and was
accommodated against six temporary posts of Research Officer,
which were created in the year 1990-91. However, as pointed out
above, on 31.12.1993, those temporary posts also came to an end.
The Department, at this stage, was left with no alternative but to
revert the petitioner to the post of Senior Geographer as no post of
Research Officer (Map) was available as on that date to retain the
petitioner on that post. The petitioner did not immediately
challenge his reversion, though he made certain representations. In
the meantime, as he got the opportunity to go on deputation to the
post of Research Officer (Drawing) in October 1994, he proceeded
on deputation. When his representation against reversion was
rejected, he approached the Tribunal and filed application under
Section 19 of the Administrative Tribunals Act, 1985, which was
registered as OA No. 1168/1995. This OA was allowed by the
Division Bench of the Tribunal. The main reason for setting aside the
reversion order was that even on 31.12.1993, one post of Research
Officer (Map) was available inasmuch as Shri R.P. Singh was
promoted as Map Officer vide orders dated 7.12.1993. According to
the Tribunal, in these circumstances, as on 31.12.1993, post of
Research Officer became available on promotion of Shri R.P. Singh to
the next higher post and there was no reason to revert the petitioner
to the post of Senior Geographer and he could not have been
accommodated/adjusted to the post created on promotion of Shri
R.P. Singh. It would be relevant to point out at this stage that the
petitioner had also, in the said OA, challenged his non promotion to
the post of Research Officer (Map) in the year 1994. It so happened
that on the reversion of the petitioner to the post of Senior
Geographer on 31.12.1993 and when he was working in that capacity
on that date, albeit on deputation with effect from October 1994,
three posts of Research Officer (Map) became available and the DPC
was held for consideration of those candidates who fell under the
zone of consideration. In that DPC, respondent Nos. 3 & 4 and one
Shri R.K. Chourajit Singh were promoted to the post of Research
Officer (Map), though the petitioner was considered, but not
recommended by the DPC. Therefore, in the OA filed by him in the
year 1995, the petitioner had challenged the recommendations of
DPC as well. However, the Division Bench of the Tribunal, while
disposing of the said OA, did not touch this aspect as relief was
granted to the petitioner declaring his reversion as illegal. At the
same time, it is also worth mentioning that though the petitioner had
challenged the recommendations of DPC, he had not impleaded
respondent Nos. 3 & 4 and Shri R.K. Chourajit Singh as parties in the
said OA.
5. The Department decided to implement the aforesaid judgment of the
tribunal and at that stage respondent Nos. 3 to 5 came to know
about the judgment of the Tribunal. They, in these circumstances,
also approached the Tribunal and filed OA No. 505/2004. It initially
came up before the Division Bench of the Tribunal and the Division
Bench, while brushing aside the technical objection of the petitioner
to the maintainability of the said OA in view of the judgment of the
Supreme Court in the case of K. Ajit Babu & Ors. v. Union of India &
Ors., (1997) 6 SCC 473, deemed it proper to refer the matter to the
Full Bench as one coordinate bench could not upset the judgment of
another coordinate bench. In these circumstances, orders dated
18.2.2005 were passed by the Division Bench referring following
questions for determination by the Full Bench :-
"(a) Whether the decision rendered on 23.8.1999 in OA No.
1168/1995 in the matter of R.N. Chhipa vs. Union of
India & Ors., is correct in law and on facts of the case?
(b) If the answer is in the negative, then whether the same
decision is to be set aside? If so, to what extent?"
6. The Full Bench has, by reasons of its judgment dated 3.5.2005,
decided the aforesaid questions in favour of the respondent Nos. 3
to 5. Challenging that judgment the petitioner has filed WP (C) No.
10524/2005. After the aforesaid decision of the Full Bench, matter
was remanded to the Division Bench for disposal of the OA. The
Division Bench, obviously referring to the aforesaid judgment of the
Full Bench, allowed the OA filed by the respondent Nos.3 to 5
herein vide its judgment dated 14.11.2006. Another writ petition, i.e.
WP (C) No. 18906/2006 is filed by the petitioner challenging the said
judgment of the Division Bench.
7. The aforesaid narration of the facts would clearly demonstrate that in
both the writ petitions, subject matter remains the same and we have
to deal with the singular issue relating to the reversion of the
petitioner.
8. Perusal of the judgment of the Full Bench would indicate that it has
given three reasons holding the reversion of the petitioner as valid,
namely :-
(a) In the year 1989, the petitioner was given promotion to the
post of Research Officer (Map) in a temporary capacity and,
therefore, he did not acquire any right thereon. Though the
petitioner was promoted in the year 1989, when Mohd. Abbas
joined back his parent cadre on 10.3.1992 after completion of
his deputation period, no post of Research Officer (Map) was
available. As on that date, including the petitioner, there were
12 persons occupying the post of Research Officer (Map) as
against the sanctioned strength of 11. The petitioner, in these
circumstances, who was the junior most, was shown at S.No.
12, but was not reverted as in the meantime six temporary
posts of Research Officer (Map) were created in the year 1990-
91 and he could be adjusted to one of those temporary posts.
However, when these posts came to an end on 31.12.1993, the
petitioner, being the junior most, for want of any available
post of Research Officer (Map), had to be necessarily reverted.
(b) The next vacancy of Research Officer (Map) became available
only on 31.1.1994 when Shri R.P. Singh took over the higher
post of Map Officer. This happened after the petitioner had
already been reverted. In these circumstances, it was not
possible to again give back the petitioner the post of Research
Officer (Map) as in the meantime there were other persons
who were in the zone of consideration and it was necessary
that fresh DPC is convened for considering all those persons
falling under the zone of consideration, including the
petitioner, in view of the judgment of the Supreme Court in
the case of Union of India & Ors. v. Tara Chand, (1995) 6 SCC
589. However, even when the petitioner was considered
along with others, he was not recommended for promotion.
(c) The petitioner had not brought the aforesaid facts to the notice
of earlier Division Bench which passed judgment dated
23.8.1999 in favour of the petitioner in his OA.
9. Mr. Sudarshan Rajan, learned counsel appearing for the petitioner,
has challenged the aforesaid findings of the Tribunal. On the first
aspect, his submission is that promotion of the petitioner in the year
1989 was on regular basis and not on temporary basis or as a stop-
gap arrangement.
As far as this aspect of the matter is concerned, we are one
with Mr. Rajan. It is not in dispute that vacancy on regular basis had
fallen vacant on promotion of Mr. S.D. Tyagi as Map Officer.
Against this vacancy the eligible officers were considered. It is also
not in dispute that a DPC was constituted to consider the candidature
of all eligible persons, in which respondent Nos. 3 to 4, though
senior to him, were also considered. Thus, a proper selection
procedure was followed in respect of the vacancy available on
regular basis and the petitioner was given promotion to the said post
on the basis of that selection process. The notification which was
issued, in fact, is a clincher as in no uncertain terms it stipulates the
nature of promotion by mentioning that it is on a „Regular Basis‟.
This notification reads as under :-
" NOTIFICATION
On the recommendation of the Departmental
Promotion Committee, the President is pleased to appoint Sh.
R.N. Chhipa, Senior Geographer in the Office of the Registrar
General, India, New Delhi on the post of Research Officer
(Map), in the same office on a regular basis in a temporary
capacity with effect from 25.9.1989 (FN) until further orders.
2. Sh. R.N. Chhipa will be on probation for a period of
two years.
(MAHENDRA NATH)
JOINT REGITRAR GENERAL, INDIA"
10. No doubt, in the Office Order dated 25.9.1989, the words „regular
basis‟ do not find mention. The Full Bench of the Tribunal was
swayed by the expression „in a temporary capacity‟ and „until further
orders‟. However, that would not make any difference. It is the
gazette notification which is issued pursuant to the promotion of the
petitioner which will hold the field. This notification has been issued
after taking approval of the President of India. Furthermore, in this
notification it is also mentioned that the petitioner will be on
probation for a period of two years. Stipulation regarding probation
was not even necessary if the promotion was on a regular basis. No
doubt, in the impugned judgment of the Full Bench, it has also
observed that it had called for the records of the DPC held on
5.9.1989 which shows that selection was made for officiating
promotion to the grade of Research Officer (Map). We are not in a
position to comment about the same as no such records are made
available before us. Be that as it may, even as per the provisions of
Section 20 of the General Clauses Act it is the ultimate orders which
are issued by means of a notification which would be determinative
of the nature of promotion given to the petitioner.
11. At the same time, we are of the view that the final conclusion arrived
at by the Full Bench would remain the same and nature of
promotion of the petitioner would not make any difference. As
indicated above, on return of Mr. Mohd. Abbas, the petitioner had
become surplus and could not be adjusted against the 11 regular posts
of Research Officer (Map). Even in the seniority list of Research
Officer (Map) issued on 18.5.1992, the petitioner was shown at
Sr.No. 12. He, however, could save the day for himself only because
there were six temporary posts available as on that date. The result
was inevitable when those posts came to an end on 31.12.1993. It is
at this stage that second submission of the petitioner is that even on
31.12.1993 another post of Research Officer (Map) became available
as Shri R.P. Singh stood promoted to the post of Map Officer vide
orders dated 7.12.1993. However, what this argument misses (which
was glossed over by the Division Bench also in its earlier judgment
dated 23.8.1999) is that Shri R.P. Singh joined the higher post only
on 31.1.1994. Thus, notwithstanding the promotion orders, he
continued to work as Research Officer (Map) from 7.12.1993 to
30.1.1994. Thus, as on 31.12.1993, Shri R.P. Singh was occupying the
post of Research Officer (Map) and as on that date no such post of
Research Officer (Map) was available and, therefore, there was no
occasion to accommodate the petitioner against that post.
12. In this backdrop, it is important to note that when the petitioner was
reverted to the post of Senior Geographer with effect from
31.12.1993, he started working on this lower post and continued to
work till 6.10.1994 when he proceeded on deputation to the post of
Research Officer (Drawing). Therefore, when the DPC met in
December 1994 to consider the candidature of eligible persons to the
post of Research Officer (Map), it had to consider all available
candidates and the petitioner could not have been promoted
without undergoing the selection process. This is the position in law,
which is explained by the Apex Court in the case of Tara Chand
(supra) in the following words :-
"Learned counsel appearing for the respondents, however,
placed reliance on the fact of orders issued to the respondents
regarding satisfactory completion of probation and contented
that in view of such orders, the respondents cannot be
reverted. We do not think that we can accept this contention
of the learned counsel for the respondents. On the facts of this
case, we have seen that the order of promotion itself in
unmistakable terms indicated that the promotions were
temporary and then the fact of abolition of posts created for
fixed period is not in dispute. In any event, that fact of
abolition of posts is now established by document produced
before us, namely, the letter of Registrar General of India dated
30.11.1993 extracted above. In view of the established
position that the posts temporary created to which posts
respondents were temporarily promoted having been
abolished the respondents cannot raise any objection for the
consequential reversion orders. We answer the question posed
in the beginning in the negative."
13. Resultantly, we find that these writ petitions are bereft of any merit
and the view taken by the Full Bench and as followed by the
Division Bench thereafter while allowing the OAs of the respondent
Nos. 3 to 4 cannot be faulted with and, therefore, is to be
maintained.
These writ petitions are accordingly dismissed.
14. However, before we part with, it is necessary to point out that since
the petitioner continued to work on the post of Research Officer
(Map) after the judgment of the Division Bench dated 23.8.1997 in
OA No. 1168/1995, he was not considered for promotion on regular
basis to the said post. On 27.8.1997, respondent No.4 was
promoted to this post and even at that time the petitioner was
considered, but not recommended by the DPC. Because of the
aforesaid outcome of the OA filed by the respondent Nos. 3 to 5,
any DPCs which were held subsequent to 1997 and in which the
petitioner was not considered for promotion to the post of Research
Officer (Map), it becomes incumbent upon the part of the
respondent to consider his candidature for the said post and if he is
found fit for promotion, he has to be given promotion to the post of
Research Officer (Map) from the date his juniors were promoted
with all consequential benefits.
(A.K. SIKRI)
JUDGE
(SURESH KAIT)
JUDGE
January 29, 2009
nsk
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP (C) No. 18906/2006
% Decided on : January 29, 2008
R.N. Chippa . . . Appellant
through : Mr. Sudarshan Rajan, Advocate
VERSUS
Union of India & Ors. . . . Respondents
through : Mr. H.K. Gangwani, Advocate
for the respondent Nos. 1 & 2.
Mr. L.R. Khatana, Advocate
for the respondent Nos. 3 to 5.
CORAM :-
THE HON‟BLE MR. JUSTICE A.K. SIKRI
THE HON‟BLE MR. JUSTICE SURESH KAIT
1. Whether Reporters of Local newspapers may be allowed
to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the Judgment should be reported in the Digest?
A.K. SIKRI, J. (ORAL)
For orders, see WP (C) No. 10524/2005
(A.K. SIKRI)
JUDGE
(SURESH KAIT)
JUDGE
January 29, 2009
nsk
