Ashok Kumar Verma vs Uoi & Ors.
2009 Latest Caselaw 4794 Del

i.8

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


%                              Date of Decision : November 24, 2009


+                          W.P.(C) 20981/2005


        ASHOK KUMAR VERMA               ..... Petitioner
                Through: Mr.Naresh Kaushik, Advocate.


                      versus


        UOI & ORS.                              ..... Respondent
                  Through:       Mr.R.V.Sinha, Advocate and
                                 Mr.A.S.Singh, Advocate.


        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE SURESH KAIT

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

      2. To be referred to the Reporter or not?       No

      3. Whether the judgment should be reported in the
         Digest?                                   No




PRADEEP NANDRAJOG, J. (Oral)

1. Since the issue is short we are deciding the writ

petition at the admission stage itself. Rule DB. Heard for

disposal.

2. As per the notified Recruitment Rules for the post of

Commandant (Senior Veterinary Surgeon) under ITBP, the

applicable service Rule stipulates that the post would be filled

up firstly by promotion and failing which by deputation. In

respect of the promotion, the feeder cadre is the post of

Deputy Commandant (Veterinary Surgeon) with 5 years

regular sevice in the grade and being in Medical Category

Shape-I.

3. The post of Commandant (Senior Veterinary

Surgeon) was vacant and required to be filled up as per the

notified Recruitment Rules in the year 2001.

4. The petitioner had rendered the requisite 5 years of

regular service as a Deputy Commandant (Veterinary Surgeon)

and was also in the Medical Category Shape-I. Another officer;

namely, Dr.Mala Ram Dewan also working as a Deputy

Commandant (Veterinary Surgeon) was found eligible to be

considered for promotion and the DPC which met on 11.1.2001

considered the candidature of the petitioner and said

Dr.M.R.Dewan and found that none had the prescribed

benchmark of „Very Good‟. The DPC submitted its

recommendations on 11.1.2001 and as a result thereof a

decision was taken to fill up the post through the process of

inviting applications on deputation.

5. Processing the matter further, applicants who had

sought to be considered for appointment on deputation were

considered in the month of June and July 2002 and one

Dr.M.P.Wase was offered the post on deputation basis.

6. The petitioner filed a writ petition before the High

Court of Punjab & Haryana at Chandigarh which was registered

as CWP No.5769/2007. He questioned the appointment of

Dr.M.P.Wase as a Commandant (Senior Veterinary Surgeon)

under ITBP.

7. The grievance of the petitioner raised in the writ

petition was that when the DPC met on 11.1.2001 the ACR of

the petitioner for the preceding year and going backwards by

another 4 years were considered. When appointment on

deputation basis was considered in the month of June/July

2002, 2 more ACRs for the years 2000-01 and the year 2001-

02 were available. It was urged in the said petition that the

respondents were obliged to reconsider the suitability of the

petitioner for promotion with reference to his 2 ACRs

pertaining to the year 2000-01 and the year 2001-02.

8. The writ petition succeeded before the Division

Bench of the Punjab & Haryana High Court at Chandigarh vide

judgment and order dated 27.1.2005. Allowing the writ

petition it was directed as under:-

"In view of the factual position acknowledged above, it is apparent that the respondents were obliged to evalualte the claim of all eligible candidates for

promotion to the post of Commandant (Senior Veterinary Surgeon) and only when a suitable candidate was not available for promotion from the feeder cadre, it was open to the official respondents to make appointment by way of deputation. Since, at the juncture when the claim of respondent No.3 was considered for appointment by way of deputation, two more Annual Confidential Reports of the above petitioner had become available (which had not been taken into consideration when the claim of the petitioner was considered on 11/2/2001), it was obligatory for the official respondents to first re-assess and re-evaluate the claim of the petitioner and only if, the petitioner did not satisfy the prescribed bench mark, it was open to the official respondents to effect appointment by way of deputation. Since the aforesaid procedure, which flows from the statutory rules under reference, was not adhered to, it is imperative for us to set aside the appointment of respondent No.3 to the post of Commandant (Senior Veterinary Surgeon) by way of deputation. Ordered accordingly."

9. The grievance raised in the instant writ petition is

that the mandamus issued by the Punjab & Haryana High

Court has been violated, in that, the DPC which was convened

on 8.6.2005 pursuant to directions issued by the Punjab &

Haryana High Court has not reconsidered the matter as per

the mandamus issued by the Punjab & Haryana High Court and

that the ACR for the year 2001-02 has not been considered.

10. We note that in para 12 of the writ petition, the

petitioner has specifically averred as under:-

"12. That after considering the matter at length, Hon‟ble Punjab and Haryana High Court allowed the aforesaid writ petition vide its judgment dated 27/1/2005. True typed copy of the judgment dated 27/1/2005 is annexed herewith as Annexure P-5. In the said judgment it has been interalia held that

"Since, at the juncture when the claim of respondent No.3 was considered for appointment by way of deputation, two more Annual Confidential Reports of the above petitioner had become available (which had not been taken into consideration when the claim of the petitioner was considered on 11/2/2001), it was obligatory for the official respondents to first re-assess and re-evaluate the claim of the petitioner and only if, the petitioner did not satisfy the prescribed bench mark, it was open to the official respondents to effect appointment by way of deputation."

11. The response to the said paragraph is to be found

in paras 11 and 12 of the counter affidavit, wherein it has been

averred as under:-

"11. In reply to para 11 it is submitted that after receipt of the judgment of the Hon‟ble Punjab & Haryana High Court dated 27.01.2005, a DPC for the vacancy year 2002-03 was convened on 08.06.2005 to fill up one carried forward vacancy of Commandant (Sr.Veterinary Surgeon) for 2001-02 as available on 01.04.2002. As per the instructions of the Government ACRs of 5 preceding years on the crucial date of eligibility i.e. 01.01.2002 were required to be considered while considering the claim of employees for promotion. Accordingly, DPC had considered the ACRs of petitioner as well as other eligible officers. On the basis o their service record and ACR gradings as obtained by them, the DPC did not recommend the petitioner for promotion to the post of Commandant (Sr.Veterinary Surgeon) as he has not obtained the prescribed bench mark of „Very Good‟ as prescribed for promotion. The DPC proceedings have since been approved by the competent authority. As per Rule his ACR for the year 2001-02 were not required to be considered for the vacancy year 2002-03 fo rhis promotion as Commandant (Sr.Veterinary Surgeon), being the crucial date as on 01.01.2002 that had been prescribed for promotion for the vacancy year 2002-

03.

12. Reply to para 8 and 11 above may be treated as a reply to para 12."

12. We note that for unexplainable reasons a second

counter affidavit has been filed by the respondents. Reply to

para 12 of the writ petition is in the following words:-

"Para No.11 & 12: That in reply to the corresponding para of the application it is submitted that Dr.Mala Ram Dewan, Chief Veterinary Officer filed a writ petition No.10736 of 2007 in the Hon‟ble Punjab & Haryana High Court at Chandigarh requesting repatriation of respondent No.3 (Dr.M.P.Wase) and considering him for promotion to the post of Chief Veterinary Officer (Selection Grade). The Hon‟ble Court passed the following order dated 21.05.2008:-

"the petitioner has joined as Commandant/Chief Veterinary Officer on 28.04.2006 and he completes two years on 27.04.2008. It is only on acquiring this eligibility criteria that he can be further considered for promotion. Unfortunately, the petitioner is due to retire on 31.05.2008 and there is hardly any occasion to consider him for such promotion. Apart from the above, the only vacancy which is available, is presently occupied by respondent No.3 on deputation. Even if respondent No.3 is repatriated to his parent cadre still the consideration for selection to the Selection Grade post had to be accorded by the DPC which is likely to take some time. The petitioner is at the verge of retirement. Hence, no relief can be granted to him at this stage. Under the given circumstances, the only direction which can be given is for repatriation of respondent No.3 to his parent cadre as his continuance on deputation is beyond four years and for no valid reasons. It is, accordingly, directed that respondent No.3 be repatriated to his parent cadre forthwith."

In compliance of Hon‟ble Court order dated 21.05.2008, Dr.M.P.Wase (respondent No.3) was repatriated from ITBP to SSB on 22.08.2008 (AN) vide Directorate General, ITBP order No.I- 21018/1/2002/Pers.1-1812 dated 22.08.2008 (Annexure-I)."

13. It is apparent that the respondents have not

complied with the mandamus issued by the Punjab & Haryana

High Court.

14. The respondents seem to be fixed with the idea of

the post being considered as a carry forward vacancy for being

filled up.

15. Right or wrong, the mandamus issued by the

Punjab & Haryana High Court has attained finality. It has to be

implemented. The respondents are bound to consider the

candidature of the petitioner for being appointed to the post of

Commandant (Senior Veterinary Surgeon), by considering

ACRs of the petitioner for the years 2000-01 and the year

2001-02.

16. We note that Dr.M.P.Wase who came on deputation

has now been repatriated to his parent department.

17. We dispose of the writ petition directing the

respondents to convene a Review DPC and in the DPC consider

the ACRs of the petitioner for the years 2001-02 and

backwards for the preceding years so that 5 years‟ ACRs are

considered. We clarify that 5 years in respect whereof ACRs

would be considered would be as under:-

      (a)    1997 - 1998.

      (b)    1998 - 1999.

      (c)    1999 - 2000.

        (d)   2000 - 2001.

       (e)   2001 - 2002.

18. Needless to state, if the petitioner is found eligible

for promotion the promotion would be granted to the

petitioner with retrospective effect for the purpose of pay

fixation and seniority. In respect of actual pay to be paid, the

Competent Authority would take a decision as per the

applicable service rules.

19. The respondents would do the needful within four

months from today.

20. No costs.

PRADEEP NANDRAJOG, J.

SURESH KAIT, J.

NOVEMBER 24, 2009 Dharmender