Shri D.C.Pandey & Anr. vs U.O.I. & Ors.
2009 Latest Caselaw 4006 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


%                      Date of Decision: 06th October, 2009


+                      WP(C) No.2048/1990


      SHRI D.C.PANDEY & ANR.            ..... Petitioners
                Through: Dr.S.P.Sharma and Mr.T.C.Sharma,
                         Advocates.

                             versus

      U.O.I. & ORS.                          ..... Respondents
                 Through:    Dr. Ashwani Bhardwaj &
                             Mr.Jitender Chaudhary, Advocates.

      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?       Yes

3.    Whether the judgment should be reported in the
      Digest?                                   Yes

PRADEEP NANDRAJOG, J. (ORAL)

1. At the outset we may note that in terms of the

order dated 17.3.2009 file of WP(C) No.2280/1996 has been

sent in Court today.

2. The said matter relates to the Municipal Corporation

of Delhi and has no concern with the issue raised in the instant

writ petition.

3. Thus, the instant writ petition is being decided and

file of WP(C) No.2280/1996 is being returned to the branch.

4. The prayers made in the writ petition are as under:-

"(a) declare that the EDP Cell and the General Duty Cadre are two different Wings/Branches within the CRPF and in the matter of promotion to the post of Sub Inspector/Auditor in the EDP Cell the said test is not required to be passed;

(b) issue a writ, direction or order in the nature of certiorari or any other appropriate writ, direction or order quashing the direction contained in the letter dated 16.4.1990 requiring the petitioners to pass the „D‟ List Test so as to be considered for promotion to the post of Sub Inspector/Auditor in the EDP Cadre of the CRPF;

(c) issue a writ, direction or order in the nature of mandamus or any other suitable writ, direction or order in the nature of commanding the respondents to consider the case of the petitioners for promotion as Sub Inspectors/Auditors in the EDP Cell without their having to pass „D‟ List Test/Course;

(d) direct the respondents to specifically consider the petitioners for appointment to the post of Sub Inspectors/Auditors.

(e) issue a writ, direction or order in the nature of prohibition or any other appropriate writ, direction or order calling upon the respondents not to insist on the petitioners having to pass the said test for being considered for promotion to the post of Sub Inspector/Auditors in the EDP Cell;

(f) allow the writ petition with costs against the respondents and in favour of the petitioners."

5. It is the case of the petitioners that having been

appointed as Head Constable in the EDP Cell (Electronic Data

Processing Cell) of CRPF they are entitled to be promoted to

the next higher post of Sub Inspector in the EDP Cell and that

for such promotion they cannot be compelled to pass the „D‟

List Test prescribed for Head Constables in the general duty

branch of CRPF.

6. As per the petitioners, with the advent of

computerization an EDP Cell was created in the CRPF pursuant

to a sanction granted by the Government of India (Annexure-A)

on 10.10.1972. Three posts of head constables, two posts of

Sub Inspector, one post of Inspector and one post of Deputy

Superintendent were created in the EDP Cell.

7. On 16.10.1972, an advertisement was issued to fill

up the seven afore-noted posts and in response thereto the

petitioners applied for being considered for appointment to the

post of head constable and the petitioners were selected.

Appointment letter was issued to petitioner No.1 on 15.3.1973.

Appointment letter was issued to petitioner No.2 on 6.4.1973.

8. On 24.10.1975, eight more posts of Sub Inspector in

the EDP Cell were sanctioned.

9. The first and foremost grievance raised is that

rather than promoting the petitioners to the newly created

posts of Sub Inspectors, vide office order dated 3.1.1976 the

respondents sought to fill up the said posts by inviting

applications from UDCs/LDCs in the general cadre of CRPF.

Thereafter, the respondents selected six persons from the

clerical cadre in the general wing of CRPF which according to

the petitioners resulted in a denial of fair opportunity to the

petitioners for being employed as Sub Inspectors. As per the

petitioners, in the year 1979 and the year 1981 appointments

were made to the post of Sub Inspector in the EDP cadre from

the Personnel in the general clerical cadre of CRPF thereby

depriving the petitioners the right to be appointed as Sub

Inspectors in the EDP Cadre in the year 1979 and 1981.

10. According to the petitioners, they made various

representations pointing out that the EDP Cadre was a

separate cadre and promotions within the cadre be made by

excluding persons in the general clerical cadre of CRPF, but to

no avail. Finally, on 17.3.1980 the petitioners were called

upon to attend the „D‟ Listing Service Cadre Course if they

were desirous of being promoted as Sub Inspectors.

11. In respect of the office order dated 17.3.1980, the

grievance of the petitioners is that being experts at operating

computers, they stood no chance of clearing the „D‟ Listing

Service Cadre Course which was designed for regular head

constables.

12. The petitioners proceeded on deputation as Sub

Inspectors in the UP Police Computing Centre in March 1983

and were repatriated on 15.9.1987 but were made to join as

head constables.

13. As per the petitioners in other para military forces a

separate cadre in the EDP Cell has been created, but not in

CRPF.

14. In para 18 of the writ petition, the petitioners have

specifically pleaded as under:-

"18. The petitioners state that in the matter of making appointments from GD Personnel, no recruitment rules had been framed, no instructions governing appointments were issued, no promotion and other conditions of service were formulated by the authorities concerned and appointments and promotion were made arbitrarily, completely ignoring the basic rules/principles of service jurisprudence and the provisions of Articles 14 and 15 of the Constitution."

15. Learned counsel for the petitioners, on being

questioned as to what are the petitioners doing as of today,

informs that the petitioners have since left service under CRPF

and are gainfully employed elsewhere.

16. When questioned, as to what meaningful relief can

be granted to the petitioners today, learned counsel urges that

a declaratory relief be granted to the effect that the petitioners

should be treated as Sub Inspectors in the EDP Cadre with

effect from 8.3.1976 when six persons from the general cadre

of CRPF were appointed as Sub Inspectors.

17. The premise on which said relief is sought for by

the petitioners is that the posts of Sub Inspector in the EDP

Cadre could not be filled up by persons in the general cadre.

18. Learned counsel for the petitioners concedes, as

pleaded in para 18 of the writ petition, that there exists no

cadre in the EDP cell of CRPF.

19. A cadre would require a hierarchy of posts with

posts in the lower pay-scales being in the feeder channel to

the posts in the higher pay-scale. None has been shown to us.

Indeed, none exists.

20. That apart, the office order dated 3.1.1976,

Annexure-E shows that all persons working in CRPF who

fulfilled the requisite education qualifications and experience

were eligible to apply for being considered to be appointed as

Sub Inspectors.

21. There are no averments in the writ petition that the

petitioners responded to the office order dated 3.1.1976. We

have repeatedly asked learned counsel for the petitioners as

to why did the petitioners not do so. Learned counsel has no

answer.

22. In the absence of any rule showing that the post of

Head Constable in the EDP Cell is a feeder post to the post of

Sub Inspector in the EDP Cell and there being no rule which

fixes a quota for promotion, we find nothing wrong in the

action of the respondents. If clerks in the general cadre

appointed as Head Constables (General Cadre) could enhance

their computer operating skills and compete in an open

selection process for being appointed as Sub Inspectors to

operate computers in the EDP Cell we see no reason why

petitioners shied away from competing with their lesser

experienced brethren.

23. In view of the averments made in para 18 of the

writ petition it would be difficult for this Court to grant any of

the reliefs prayed for.

24. As regards the claim that petitioners cannot be

compelled to pass the „D‟ List Test prescribed for Head

Constables in the General Duty branch, suffice would it be to

note that the service rule applicable so requires. The said rule

has not been challenged. If petitioners desire promotion to the

post of Sub-Inspector in the general duty branch, they have to

qualify as per rules applicable.

25. The only relief which could possibly be granted to

the petitioners and which should have been sought for was a

mandamus to create promotion avenues for the petitioners.

26. We need not note judicial pronouncements of the

Apex Court emphasizing the need for creating at least one

promotional avenue for employees. The reason being that in

the absence of any incentive and on account of stagnation the

efficiency of a civil servant is impaired. Courts have held that

wherever it is not possible to create a promotional avenue,

Assured Career Progression Schemes should be brought into

force.

27. But, taking note of the fact that the petitioners have

voluntarily abandoned service under the respondents during

pendency of the writ petition, we refrain from issuing any such

mandamus.

28. Finding ourselves unable to give any relief to the

petitioners and noting that the reliefs prayed for cannot be

granted we dismiss the writ petition but without any orders as

to costs.

PRADEEP NANDRAJOG, J.

SURESH KAIT, J.

October 06, 2009 Dharmender