K.N. Sharma vs Sports Authority Of India And ...
2009 Latest Caselaw 4847 Del

  *                  IN THE HIGH COURT OF DELHI AT NEW DELHI

  +                           W.P. (C.) No.1259/2006

  %                         Date of Decision: 26.11.2009

  K.N. Sharma                                                      .... Petitioner
                           Through Petitioner in person.

                                     Versus

  Sports Authority of India and others                   .... Respondents
                        Through Mr. Anil Grover Advocate with Mr.
                                  Manish     Kumar       Advocate   for
                                  Respondent no.1.
                                  Mr.    J.P.Sharma      Advocate   for
                                  Respondent no.2
                                  Ms.Shubhangi     Tuli,  Advocate  for
                                  respondent No.3.

     CORAM:
     HON'BLE MR. JUSTICE ANIL KUMAR
     HON'BLE MR. JUSTICE VIPIN SANGHI

     1.    Whether reporters of Local papers may be                YES
           allowed to see the judgment?
     2.    To be referred to the reporter or not?                   NO
     3.    Whether the judgment should be reported                  NO
                 in the Digest?

ANIL KUMAR, J.

*

1. The petitioner herein seeks quashing of the order dated 2nd

March, 2005 passed in OA No.3192 of 2002 titled K.N. Sharma v.

Sports Authority of India declining his claim of seniority in the grade of

Director over respondent No.3; grant of financial relief and arrears from

1.8.1986 in the rank of Deputy Director and from 5th August, 1991 in

the rank of Director, and declining to declare that the absorption of

respondent no.3 in respondent no.1 was against the bye laws of

respondent no.1 and other statutory rules and also declining

selection/promotion of the petitioner as Regional Director from 1995

and as Executive Director from 2001.

2. Brief facts to comprehend the disputes raised by the petitioner

are that he joined as a Hockey Coach in Grade III in Netaji Subhash

Institute of Patiala in December 1973. He was promoted as Hockey

Coach Grade II on 1st April, 1980 in the pay scale of Rs.700-1100.

Thereafter, he was appointed as a Supervisor in National Stadium in

the pay scale of Rs.700-1100. On 1st April, 1984, Sports Authority of

India (SAI) was created as an autonomous body and the petitioner was

taken on deputation as Stadia Supervisor in the pay scale of Rs.700-

1100 which he was drawing in his parent office, Netaji Subhash

Institute of Patiala. The petitioner became a Cadre Officer of Sports

Authority of India from 1st May, 1987.

3. Later on, the petitioner was provisionally promoted as an

Assistant Director w.e.f. 20th April, 1987 subject to approval from his

parent office. In January, 1991 he was appointed as an Asst. Director

with retrospective effect, with effect from 1.10.1984. He was promoted

as Deputy Director on a review DPC with effect from 1st August, 1986

on an ad hoc basis by an order dated 8th January, 1991 with notional

fixation of pay and monitory benefits admissible from the date of

assumption of charge.

4. According to the petitioner, though Shri C.R.

Gopinath/respondent no.3 was attached on deputation with the Sports

Authority of India, the rules pertaining to appointment on deputation

were not followed in his case. The respondent No.3 was appointed as a

Director with effect from 1st June, 1991 though, according to the

petitioner, he had tendered his technical resignation from the post of

Chief Accounts Officer in his parent department i.e. India Trade

Promotion Organization (ITPO) only on 28th November, 1991. ITPO had

intimated the respondent No.1 that his resignation from ITPO was

accepted from 1st June, 1991. The appointment order of the respondent

No.3 was issued on 10th August, 1992 by respondent No.1 and the ITPO

(parent office of respondent No.3) had also conveyed the sanction of the

competent authority for permanent absorption of respondent No.3 with

respondent No.1 on 1st June, 1993.

5. The petitioner had made representations seeking directions for

holding a review DPC as per the position prevailing on 5th August, 1991

for considering his case. The petitioner had filed a writ petition being

CWP No.2187 of 1992 in the High Court of Delhi at New Delhi which

was later transferred to Central Administrative Tribunal and was

numbered as TA No.7 of 1996. The said petition, TA No.7 of 1996 was

disposed of by the Tribunal vide order dated 15th September, 1997 with

a direction for preparation of conjoint eligibility list of those who had to

be posted/promoted as Director and for holding a review DPC for giving

the notional promotion.

6. Before granting the notional promotion, the respondent no.1 had

filed a writ petition being CWP No. 5298 of 1997 which was also

disposed of by an order dated 1st May, 2000. Pursuant to the order

dated 15th September, 1997 in TA No.7 of 1996, the review DPC was

held and the petitioner was promoted as director and notional

promotion was given from 5th August, 1991. Against the implementation

of the order passed in the TA no. 7 of 1996 dated 15th September, 1997,

the petitioner filed a contempt petition no. CCP No. 130 of 2001.

7. The petitioner had claimed that in the combined seniority list, the

order passed by the Court was not complied with, as he was assigned

the seniority with effect from 1st January, 1986 as Assistant Director

though he was entitled for promotion as Assistant Director as on 1st

October, 1984 and was promoted to the post of Deputy Director with

effect from 1st August, 1986. The petitioner also contended that he was

senior to Shri L.S. Ranawat, who has been shown as regular Assistant

Director with effect from 16th October, 1984 whereas the petitioner was

shown as Assistant Director with effect from 1st October, 1984. The

petitioner had thus contended that the position shown by the

respondents was erroneous as he could not be a Deputy Director and a

Director on the same date, i.e., 5th August, 1991.

8. The Contempt petition filed by the petitioner was dismissed as

not maintainable as the High Court in its interim order dated 7th March,

1994 had not fixed any time limit for holding the DPC meeting.

However, review DPC was held on 16th April, 2001 and the petitioner

was promoted as a Director along with others w.e.f 5th August, 1991.

Others who had been promoted along with the petitioner were Shri

T.C.Sharma, Shri S.N.Mathur, Shri G.S.Anand, Dr.P.C.Kashyap and

S.K.Saggar. The seniority of the petitioner was fixed on the basis of

regular appointment as Deputy Director and the petitioner had also

been promoted as director on ad-hoc basis w.e.f. 4th September, 2000.

While disposing off the CCP No. 130 of 2001 the following order was

passed.

" Counsel for the respondent has stated that the petitioner has now been promoted in the post of Regional Director by order dated 27th October, 2001 and has placed the copy they are off on the file. He submitted that now nothing survives in this petition as directions of this Court contained in the order of the Division Bench dated 1.5.2001 have been complied with. Counsel for the petitioner on the other hand, has stated that the petitioner should have been promoted in the year 1995 to the post of regional director when his junior Mr. Gopinath was given promotion. If it is so, the petitioner may, if so likes, file a substantive petition for getting his grievance redressed in accordance with law. But so far as this petition is concerned, the direction of the Division Bench have been complied with."

9. While disposing of the Contempt petition of the petitioner, liberty

was granted to him to file a substantive petition pursuant to which the

petitioner filed OA no. 949 of 2002 seeking directions to hold a review

DPC on 5th August, 1991 by including those officers also who had

fulfilled the eligibility criteria of 5 years of service as Deputy Director or

10 years of combined service as Deputy Director and Assistant Director

and to seek that deputation of respondent no.3 on promotion post of

director and subsequent absorption with respondent no.1 be declared

as illegal and contrary to the service byelaws of respondent no.1 and to

grant promotion to the petitioner as Regional Director from 1995 and as

Executive Director from 2001 and to grant financial benefits and

arrears from 1986 to 1991 as Deputy Director and from 1991 to 2000

as director.

10. The petition being O.A No. 949 of 2002 was disposed of by the

Central Administrative Tribunal without notice to the respondent no.1

directing respondent No.1 to consider the representations made by the

petitioner. Pursuant to the order of the Tribunal the representations of

the petitioners were decided by order dated 7th October, 2002.

11. Against the order dated 7th October, 2002 the petitioner filed yet

another O.A No.3192 of 2002 which was disposed of by order dated 2nd

March, 2005 declining the claim of seniority in the grade of Director

over respondent No.3 and grant of financial relief and arrears from

1.8.1986 in the rank of Deputy Director and from 5th August, 1991 in

the rank of Director and declining to declare that the absorption of

respondent no.3 in respondent no.1 was against the bye laws of

respondent no.1 and other statutory rules and also declining to grant

promotion to the petitioner as Regional Director from 1995 and as the

Executive Director from 2001. The petitioner has impugned the said

order in the present writ petition.

12. After hearing the petitioner in person and learned counsel for the

respondents it is apparent that the Writ Petition No.2187 of 1992 filed

by the petitioner was transferred as TA no.7 of 1996 before the Central

Administrative Tribunal which was disposed of by an order dated 15th

September, 1997 holding that the respondent no.1 shall consider all the

eligible candidates in accordance with the recruitments rules and shall

prepare a panel on merit and thereafter, determine the number of

vacancies available for the post of Director and pass appropriate orders

in favor of those who would be eligible in accordance with the seniority

list. The respondent filed a writ petition being W.P.(C.) No.5298 of 1997

against the order dated 15th September, 1997 which was disposed of by

order dated 1st May, 2000 declining to interfere with the order of the

Tribunal dated 15th September, 1997 and directing the respondent to

complete the process of selection within a period of three months.

13. Consequent to the order passed by the Tribunal and the High

Court, the promotion of the petitioner was approved notionally with

effect from 5th August, 1991 on the recommendation of review DPC and

the actual benefit of pay to the petitioner was allowed from the 4th

September, 2000, i.e., the date he was promoted as Director on ad hoc

basis. It was also held that the petitioner will not be entitled for arrears

of pay on the basis of notional fixation by order dated 25th April, 2001.

14. A review DPC by the Personal Advisory Committee was also held

on 7th June, 2001 which recommended promotion of Shri G.S. Anand,

Dr. P.C. Kashyap and Shri S.K. Sagar on ad hoc basis against four

vacancies available at that time. The Personal Advisory Committee in

its meeting held on 7th June, 2001 also considered the review DPC for

the post of Director as on 5th August, 1991 which was held on 16th

April, 2001 and noted the notional promotion given to the petitioner

with effect from 5th August, 1991. On 7th June, 2001 on account of

inter se seniority of the Directors having undergone a change, the

revised seniority list was circulated and the objections were invited and

the objections received from all officers were considered except K.N.

Sharma who had made an allegation of conspiracy and, therefore, a

high-power committee had been set up.

15. Though on 28th January, 2000 the Personal Advisory Committee

had considered the cases of Shri G.S. Anand, Dr. P.C. Kashyap and

Shri S.K. Sagar and Major C. Mascarenhas who were eligible under the

rules at that time for promotion to the post of Regional Director,

however, on account of review DPC for the post of Director held on 16th

April, 2001, the petitioner and another person had also become eligible

for consideration. Therefore, the case of the petitioner along with others

was also considered. The requirement for promotion to the post of

Regional Director was five years regular service as Director. The PAC

(Personal Advisory Committee) had also laid the criteria for

consideration of five ACRs as provided in rules, out of which three ACRs

were required to have „Very Good‟ grading and two ACRs with the

grading of „Good‟ with no adverse entries in any year under

consideration, were required. Since the petitioner had become eligible

for consideration on the basis of his notional promotion as Director, the

PAC decided to consider at least one ACR giving assessment about the

post of the Director. In case of petitioner, no ACR for the post of

Director was available and he had not met the criteria laid down by the

PAC, therefore, the PAC in its meeting held on 7th June, 2001 did not

recommend the case of the petitioner to the post of Regional Director as

on 28th January, 2000. Consequently, the petitioner cannot claim that

he is entitled for promotion to the post of Regional Director from 1995

after he was given notional promotion as Director from 5th August, 1991

nor he is entitled for promotion as Executive Director from 2001.

16. The petitioner has laid great emphasis on the plea that

respondent No.3 could not be absorbed as Director with effect from 1st

June, 1991. The plea of the petitioner is not sustainable as he has

relied on un-amended rules of respondent No.1 on the basis of which it

cannot be held that the respondent No.3 was not entitled for

absorption. The respondent No.1 had revised the service byelaws in

1992 and had also framed the recruitment rules for all the posts

including the administrative cadre and consequently the absorption of

respondent No.3 cannot be challenged by the petitioner on the basis of

revised service byelaws. The petitioner, who appears in person, has

very vociferously contended relying on the recruitment rules that the

method of selection for the post of Director was selection on merits in

the scale of 3700-5000 and the age limit for direct recruitment was not

below 30 years and not above 40 years relaxable upto 10 years in the

case of departmental candidates and the candidate had to be a medal

winner in the Olympics/Asian Games/World Championship or the

candidate should have participated in Olympics/Asian Games/World

Championship in case of SC/ST. Apparently, absorption of the

respondent No.3 on 1st June, 1991 cannot be invalidated on the basis of

these rules which had been framed later on in 1992.

17. The petitioner has also contended that the method of recruitment

was not absorption and, therefore, the respondent No.3 who was on

deputation could not be absorbed from 1st June, 1991 as on that date

absorption was not the method of recruitment and has relied on Service

Byelaw 6 of Sports Authority of India which is as under:-

"6. Methods of Recruitment

(1) Recruitment to a post under the Society may be made:-

                         (i)     by promotion;

                         (ii)    by direct recruitment;

                         (iii)   by deputation;

                         (iv)    by re-employment of a retired employee of the
                                 Society or Central/State Government or any
                                 other organization;

                         (v)     On contract for a specified period of technical
                                 personnel on specific terms as approved by
                                 Vice-Chairperson, SAI.

                 (2)     The Appointing Authority of Governing Body as the
                         case may be, shall in each case determine the

method by which vacancies shall be filled by any of the above methods. In doing so, the Appointing Authority shall pay due regard to, (i) the provisions of the employment Exchange (Compulsory Notification of Vacancies) Act, 1959 and (ii) orders for reservation in service for Scheduled Castes/Scheduled Tribes, Ex-servicemen, handicapped and any other categories, as may be notified by the Govt. of India from time to time, and (iii) in any other manner, as may be decided by the Governing Body in individual cases, having special regard to the situation or requirement."

18. The plea of the petitioner is not sustainable as he has ignored the

circular dated 11th February, 1991 of respondent No.1 which was

pursuant to the meeting of the Governing Body held on 18th January,

1991 approving amendments to Sports Authority of India Service

Byelaws, 1987 including byelaw No.6 relating to absorption of

deputationist in SAI/Respondent No.1 on permanent basis. The

amendment also sought modifications in Rule 36 regarding seniority of

deputationist absorbed in Sport Authority of India/respondent No.1

contemplating that the appointing authority shall determine the

number of vacancies in each recruitment year earmarked for absorption

of deputationist on permanent basis with due regard to the claims of

cadre employees in the feeder grade. It further contemplated that

notwithstanding any other provision or any byelaw in service byelaws,

the power to permit permanent absorption of deputationist against the

post which was outside the purview of Personal Advisory Committee

shall vest in the Director General. Consequently, the argument of the

petitioner that recommendations for permanent absorption of

deputationist in the grade of Director, inclusive of respondent No.3, who

was sent on 23rd August, 1991 and which ought to have been approved

by Personal Advisory Committee only and not by the Director General

cannot be accepted. According to the amended service byelaws, the

appointment above the level of Regional Directors were required to be

made by the Personal Advisory Committee and the appointment of the

Director could be made by the Director General. Therefore, the plea of

the petitioner that the respondent No.3 could not be appointed as

Director on absorption from 1st June, 1991 cannot be accepted. The

petitioner, in the facts and circumstances, has been unable to

demonstrate and establish that the appointment of respondent No.3 by

absorption with effect from 1st June, 1991 can be invalidated. The

petitioner also cannot contend successfully on this ground that he is

entitled for selection to the post of Regional Director and pay and

emoluments of the post of Regional Director and Executive Director.

19. The Tribunal has relied on the OM No.9/11/55-RPS dated 22nd

December, 1959 contemplating that seniority of a transferee on

deputation is counted from the date of absorption. The respondent No.3

was absorbed as a Director on 1st June, 1991 whereas the petitioner

was promoted on notional basis as Director with effect from 5th August,

1991 and therefore, the petitioner cannot claim seniority over

respondent no.3

20. Though this Court has already held that the absorption of

respondent No.3 on 1st June, 1991 cannot be invalidated on the

grounds raised by the petitioner, however, for the sake of arguments,

even if, the seniority of respondent No.3 is not considered with effect

from 1st June, 1991, the petitioner is not entitled to claim appointment

to the post of Regional Director and Executive Director from the dates

claimed by him. Considering the minutes of the meeting held on 7th

June, 2001 of Personal Advisory Committee, it is apparent that the

petitioner could not be promoted/selected for the post of Regional

Director as the petitioner did not meet the criteria laid down by the

Personal Advisory Committee for promotion to the post of Regional

Director. The PAC had considered the eligibility of the petitioner. As he

had been promoted on notional basis, therefore, it had been decided to

assess his suitability at least on the basis of one ACR. However, as the

petitioner did not have even one ACR before the PAC on 7th June, 2001

as a director, therefore, he could not be selected/promoted to the post

of Regional Director and not on account of the fact that respondent

No.3 was absorbed as Director on 1st June, 1991 whereas the petitioner

was given notional promotion as Director with effect from 5th August,

1991. Consequently, the inevitable inference is that the petitioner

cannot claim selection/promotion to the post of Regional Director on

any of the grounds as has been canvassed by him before us and

consequently he is not entitled for emoluments of the post of Regional

Director. The petitioner was given notional promotion with effect from

5th August, 1991 and was granted actual benefit of pay from 4th

September, 2001, the date on which he was promoted as Director on ad

hoc basis. The petitioner, therefore, is not entitled for the relief that

respondent No.3‟s absorption was against the byelaws of respondent

No.1 and other statutory rules and directions to the respondent No.1 to

grant promotion to the petitioner as Regional Director from 1995 and as

Executive Director from 2001. No other point or ground has been

agitated by the petitioner. In the circumstances, the order of the

Tribunal dated 2nd March, 2005 in OA No.3192 of 2002, K.N. Sharma v.

Sports Authority of India cannot be faulted in the facts and

circumstances.

21. Consequently, the findings of the Tribunal that the petitioner

cannot claim seniority in the grade of Director over respondent No.3

cannot be faulted. There are no such illegalities or irregularities in the

order of the Tribunal dated 2nd March, 2005 which will entail

interference by this Court in exercise of its jurisdiction under Article

226 of the Constitution of India. The writ petition is without any merit

and it is, therefore, dismissed. Parties are, however, left to bear their

own costs.

ANIL KUMAR, J.

November 26, 2009                                      VIPIN SANGHI, J.
„Dev‟