Delhi High Court
Union Of India vs Shri D.R. Gupta on 3 July, 2009
Author: V. K. Jain
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 6420/2007
Reserved on: 25th May, 2009
% Pronounced on: 3rd July, 2009.
Union of India ........Petitioner
Through: Mr. A.K. Bhardwaj, Advocate
VERSUS
Shri D.R. Gupta ....Respondent
Through: Respondent in person
CORAM:-
THE HON'BLE MR. JUSTICE A.K. SIKRI
THE HON'BLE MR. JUSTICE V.K.JAIN
1. Whether Reporters of Local newspapers may be
allowed to see the Judgment? Yes.
2. To be referred to the Reporter or not? Yes.
3. Whether the Judgment should be reported in the
Digest? Yes.
V.K.Jain, J.
The respondent was empanelled in the year 2006-07 for
appointment to the Higher Administrative Grade of Indian Railways,
against the vacancies likely to arise up to 30.6.2007. The respondent was
placed at serial No. 8 of the panel. However, he was not promoted to the
Higher Administrative Grade of Indian Railways, on the ground that at
the time of occurrence of vacancy in Higher Administrative Grade, on
20.02.2007, he had less than one year‟s residual service left; his date of
superannuation being 31.8.07, whereas Resolution dated 28.3.2000,
issued by the Ministry of Railways stipulated minimum one year‟s
residual service for promotion to the Higher Administrative Grade. OA
No. 991/07 was filed by the respondent, as his representation for being
promoted to the Higher Administrative Grade was rejected. Vide order
dated 10.8.07, the Tribunal directed the petitioner to promote the
respondent to the Higher Administrative Grade. The order of the
Tribunal has been assailed in this writ petition.
2. Resolution No. E(O) III 93/PM/50 Rail Bhawan, New Delhi - 110001
Dated 28.3.2000, to the extent it is relevant, provides as under:
"RESOLUTION The Government of India have had
under consideration the question of laying down principles
and procedure for making appointment to the posts in scale
of Rs. 22,400-24,500/- in various Group „A‟ Railway Services
under the Ministry of Railways . It has been decided that the
method and eligibility criteria for the purpose of selection of
officers for these posts will be as laid down hereunder:
3. Eligibility Criteria
(a) Officers to be considered for empanelment should
have worked in Senior Administrative Grade for a minimum
period of 5 years on regular basis and should be less than 59
years of age on the 1st July of the year for which the panel is
made as referred to in Para 4 of this Resolution.
(b) Only such of the empanelled officers would
be appointed to these posts who had a year or more of service
left on the date of occurrence of vacancy falling in their turn.
5. Relaxation
Any of the above mentioned provisions may, if considered
expedient in the public interest, be relaxed to the extent
necessary, in consultation with the Department of Personnel
& Training. Any such relaxation shall be specifically brought
to the notice of the Appointments Committee of the Cabinet."
3. It is not in dispute that the above referred Resolution is applicable
to the post in Higher Administrative Grade as their pay scale was 2200-
400-24-5000. It is also not in dispute that since the respondent was
placed at serial No.8 of the panel, he could have been promoted only
against the vacancy which accrued on 20.2.2007. It is also not in dispute
that the date of superannuation of the respondent was 31.8.2007. The
respondent, therefore, had residual service of less than one year, on the
date of accrual of the vacancy. Consequentially, he could not have been
appointed against that vacancy. Clause 5 of the Resolution permits the
competent authority to relax any of its provisions in public interests in
consultation with DOP&T and in such a case the relaxation ought to be
specifically brought to the notice of ACC (Appointment Committee of the
Cabinet). A perusal of the impugned order of the Tribunal would show
that the Tribunal has directed promotion of the respondent on the ground
that vide OM dated 25.1.90, Govt of India had decided that in respect of
appointment which fell within the purview of ACC, no Officer was to be
promoted in his own line of promotion unless he would have service of
minimum 3 years before retirement, but that decision was rescinded vide
another OM dated 16.6.03. The OM dated 16.8.03 reads as under:-
"The undersigned is directed to say that in this Department‟s
O.M. No. 27(4)/EO/89-ACC dated 11.4.1989, as reiterated
vide O.M. NO. 22011/11/89 Estt (D) dated 25.1.1990, it was
prescribed that in respect of appointments which fall within
the purview of ACC, no officer should be promoted to a
higher post in his own line of promotion unless he would have
a minimum service of 3 months before retirement.
2. It has been decided to rescind the above decision with
immediate effect. Secretary of the Department will be
responsible for keeping the Cabinet Secretariat informed of
any departure."
4. We are unable to agree with the Tribunal in this regard. OM dated
16.6.03 issued by the Department of Personnel and Training contained
its decision to rescind its earlier decision contained in 2 earlier OMs -
dated 11.4.89 and 22.1.90. It does not rescind and, in fact, could not have
rescinded the resolution dated 28.3.2000 passed by the Railway Board.
The respondent was denied promotion on account of restrictions
contained in the Resolution of Railway Board dated 28.3.2000 and not on
account of OM dated 11.4.1989 on 25.1.1990 issued by the DOP&T. So
long as the Resolution dated 28.3.2000 passed by the Railway Board was
in force, it was binding upon the petitioner and the respondent could not
have been given promotion against the vacancy which accrued on
20.2.07.
5. In para 10 of its judgment, the Tribunal has observed that to the
extent necessary, the petitioner could have relaxed the relevant revision
in consultation with DOP&T and has noted that they were sure that had
DOP&T been consulted, they would have advised Railway Board, the
necessity for a positive approach. However, the fact remains that the
Tribunal instead of directing the petitioner to consider relaxation in
consultation with DOP&T, took up the responsibility upon itself and
straightaway directed the petitioner to promote the respondent to Higher
Administrative Grade. We cannot approve the course adopted by the
Tribunal. If the Tribunal felt that it was a fit case for relaxation of
relevant provisions of Resolution dated 28.3.2000, it could have directed
the petitioner herein to consider the resolution but it could not have
directed promotion of the respondent.
6. For the reasons given above, we cannot sustain the order passed by
the Tribunal. The Writ Petition is allowed and the order dated passed by
the Tribunal is set aside.
(V.K. JAIN)
JUDGE
(A.K. SIKRI)
JUDGE
July 3, 2009.
'raj'
