Sudhanshu Kumar Khare & Others vs Union Of India & Others
2009 Latest Caselaw 2281 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 1823/2002

Sudhanshu Kumar Khare & Others                         ..... Petitioner
                      Through:       Mr. A.K. Behera, Advocate

                 versus


Union of India & Others                                  ..... Respondent
                          Through:   Ms. Jyoti Singh,


     CORAM:
     HON'BLE MR. JUSTICE A.K.SIKRI
     HON'BLE MR. JUSTICE V.K. JAIN

A.K.SIKRI,J (ORAL)




1.   The petitioners herein are the direct recruitees who were

appointed to the post of Dy. Suptd. of Police (DSP) in CBI

under the relevant recruitment norms. They are challenging

the seniority list which was circulated as on 01.01.1999. The

petitioners have no grievance in respect of the persons shown

at serial No. 2 to 87 in the said seniority list. However, they

claim that persons shown at serial No. 88 to 175 should have


                                                                  Page 1 of 8
 been treated as juniors to them. We may point out that all

those persons who are placed at serial No. 2 to 175 in the

said list are promotes, from the post of Inspector to that of

DSP.    The brief submission of the petitioners is that these

persons were promoted to the post of DSP even when no

vacancy in the promotion quota was available at that time.

This position is not in dispute.


2.     Recruitment Rules for the post of DSP were initially

framed in the year 1963. Recruitment rules of 1963 which

came into place with effect from 28.2.1963 remained in force

till 31.03.1987, when they were replaced by recruitment rules

of 1987. The promotees shown at serial no. 88 to 175 were

given promotions between 1983 and 1993.       Thus, some of

these promotions were under 1963 rules whereas others were

under 1987 rules. As per 1963 rules as well as 1987 rules,

30 per cent posts in the cadre of DSP could be filled by

promotions; 20 per cent by direct recruitment and 50 per cent

on deputation.


                                                      Page 2 of 8
 3.   As pointed out above, at the time of promotions of the

persons who were shown in the seniority list at serial No. 88

onwards, there was no vacant post for them in promotion

quota. The petitioners herein were appointed in June 1997

onward on the basis of Civil Services examination 1995,

1996, 1997 and 1998. They challenged the seniority list by

approaching the Central Administrative Tribunal, Principal

Bench, New Delhi on the ground that since there were no

vacancy in the promotion quota, such promotions were

irregular and should have been treated as ad-hoc.    In that

eventuality, submission of the petitioners was that they

should not have been given seniority over and above the

petitioners herein. The tribunal noted the contentions of the

respondents that prior to 1988, there was no direct

recruitment of DSPs through Civil Services examination. On

demand from CBI, UPSC used to sponsor candidates from

amongst the left over of IPS officers. On the basis of some

observations made by Delhi High Court in a case, UPSC


                                                     Page 3 of 8
 advised that in future all vacancies are to be notified through

UPSC for filing the same through CSE.          Thereafter CBI

started notifying to UPSC for sponsoring suitable candidates

for the post of DSP. This explanation of the respondent has

been accepted by Ld. Tribunal which has led the dismissal of

the O.A. filed by the petitioners herein.   We may also note

that the additional reason given by the tribunal for dismissing

the O.A. was that all the promotees over whom the petitioners

were claiming seniority, were not impleaded as party in the

O.A. and therefore the O.A. was bad for non joinder of

necessary parties. When this petition came up for hearing on

25.11.2004; after hearing the counsel for the parties following

order was passed:


      "Petitioners' grievance is that respondents had made
promotions to Dy. S.P. in excess of the promotion quota
prescribed under the rules and the excess promotes could not
be treated to be regular promotes and, therefore, could not be
given seniority on that basis.
      The stand of respondents seem to be that they had
utilised the direct recruitment quota in exercise of power of
relaxation of rules in consultation with the UPSC and,
therefore, any excess promotion made could not be treated to

                                                       Page 4 of 8
 be an ad hoc promotion in terms of OM dated 4.12.1992. The
controversy can be clinched by looking at the relevant rule to
find out whether said rules contained any power to relax any
clause of provisions of the rule.
      Learned counsel for respondents has submitted a copy
which he urges to be rules which shows that there was a
power to relax any clause or provision of the rules. But it is
not a complete document and it is not known which rules are
referred to therein.
     It is accordingly required to submit the original copy of
the rules of 1963 and 1996 and also to file an affidavit by the
competent authority on the basis of official record that the
relevant quota rule was relaxed in exercise of power conferred
under the rules in consultation with UPSC to make excess
promotions to the post of Dy. S.P. Requisite affidavit be filed
within two weeks.
     List thereafter on 03.20.2005."
4.   In compliance with the directions as contained in the

aforesaid order, an affidavit has been filed by the CBI. In this

affidavit it is conceded by CBI that there is no provision either

under recruitment rule 1963 or 1987 which empowers the

respondent to relax the rules, meaning thereby that there is

no specific power for filing up of the post by promotion in

excess of the prescribed quota under the rules. The action

taken is, however, sought to be justified on the ground that

there is inherent power to relax the rules. It is also stated

                                                         Page 5 of 8
 that appointment of DSPs through promotion, in excess of

prescribed quota, was taken in consultation with the

Department of Personnel and Training as well as UPSC. The

submissions of the petitioners, however, is that in the

absence of any power of relaxation such steps could not have

been taken in violation of the statutory rules and consultation

with DOPT and UPSC would not suffice.


5.   It is not necessary to consider this submission by us in

this writ petition; suffice it to state that the tribunal has not

considered the matter from this angle. It was necessary for

the tribunal to decide as to whether there could have been

promotion in excess of quota in the aforesaid manner in the

absence of specific power of relaxation. Our reason for not

going into this aspect is simple. We are of the opinion that it

was necessary for the petitioners to implead those promotees

as respondents in the O.A., over whom they are claiming

seniority.   Since the matter needs serious consideration on

merit, we feel that one opportunity should be given to the


                                                         Page 6 of 8
 petitioners to implead them as parties in the O.A. Influenced

by this consideration, we are setting aside the impugned

judgment of the Tribunal and remit the case back to the

tribunal for fresh consideration after allowing the petitioners

to implead those promotees who may be affected by the

decision in case it goes in favour of the petitioners. We may

also take note of the submissions of Ld counsel for the

respondents that such persons were given promotions long

ago   and   they   were   promoted   to   even   higher     posts

subsequently and therefore it may not be proper to unsettle

their promotions to the post of DCP and further promotions.

It would be for the Tribunal to consider these aspects and

take an appropriate view. It is not necessary for us to

comment upon the course of action which the Tribunal

should take, if it finds merits in the OA of the petitioners

herein. The Tribunal may make endeavour to dispose of the

OA expeditiously, after the service of the respondent to be




                                                          Page 7 of 8
 impleaded, is complete. The parties are directed to appear

before the Tribunal on 21.7.2009.



                                            A.K. SIKRI, J.

V.K. JAIN, J. May 27, 2009 acm