Dr. Gurdeep Singh vs University Of Delhi & Ors.
2009 Latest Caselaw 3773 Del

*                  HIGH COURT OF DELHI : NEW DELHI

              Judgment reserved on : September 07, 2009
              Judgment delivered on : September 15, 2009

+                       W.P. (C) No.5527/2004 and
                           C.M. No. 4156/2004

%      Dr. Gurdeep Singh                         ...   Petitioner
                 Through:      Petitioner in person

                                 versus

       University of Delhi & Ors.              ... Respondents
                   Through: Mr. Amit Bansal and Ms. Manisha
                               Singh, Advocates.

CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

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

2.     To be referred to Reporter or not?

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

SUNIL GAUR, J.

1. On 1st August, 2003, Petitioner, alongwith four other Senior

Medical Officers, was granted next higher scale (referred to as Non-

Functional Selection Grade) with effect from 5th April, 2002 by the

Respondent - University. On that very day, vide impugned order

(Annexure P-11), Respondents No. 6 & 7 were granted the next

higher scale (Non-Functional Selection Grade) with effect from 6th

June, 2001 and this was purportedly done in terms of Office

Memorandum of 6th June, 2000 (Annexure P-1).

W.P. (C) No.5527/2004 Page 1

2. Petitioner claims that Office Memorandum (Annexure P-1) was

adopted by Respondent - University vide Resolution of 17th May

2001, (Annexure P-2). According to the Petitioner, the case of

Respondents No. 6 and 7 was considered for grant of next higher

scale (Non-Functional Selection Grade) on 24th December, 2001 and

vide Resolution (Annexure P-6), the Execution Council of

Respondent - University had recommended the case of Respondent

No. 6 and 7 be reviewed after one year. Petitioner points out that the

import of Resolution (Annexure P-6) is that Respondent No. 6 and 7

were not found fit to be placed in the next higher scale (Non-

Functional Selection Grade).

3. The grievance of the Petitioner is that he was eligible for the

grant of next higher scale (Non-Functional Selection Grade) on 24th

December, 2001 and his case should have been considered

alongwith Respondent No. 6 and 7 and if they were not found fit, then

the Petitioner ought to have been granted the next higher scale. For

contending so, the Petitioner relies upon extract of Government

Guidelines on Departmental Promotion Committees [as amended

upto 8th February, 2002] - (Annexure P-4), which provides for

consideration zone of eight officials for two vacancies.

4. Petitioner submits that despite Representations (Annexure P-7,

Annexure P-8 and Annexure P-13), the aforesaid grievance of the

Petitioner has not been redressed and Respondent - University has

W.P. (C) No.5527/2004 Page 2 not paid any heed to the aforesaid Representations of the Petitioner.

Hence, this petition.

5. In response to this petition, Respondent - University has filed a

short counter affidavit stating as under:-

"Certain guidelines referred to by the Petitioner as to the number of persons to be called by the DPC, relates to calling candidates for regular promotions, which has no application to granting a particular pay scale to limited number of persons. In the present case, only 2 persons became eligible to be considered for grant of Non- Functional Selection Grade pursuant to increase in the number consequent upon the June, 2000 decision of the Government of India adopted by the Executive Council of the University on 17.5.2001. It is further submitted that the Petitioner being lower in the order seniority, was not entitled to be considered for grant of the Non-Functional Selection Grade when the DPC met on 12.12.2001, and rightly considered the two senior most officers."

6. Despite service upon Respondent No. 5 to 7, they have not

responded to this petition. Rejoinder to the counter affidavit of

Respondent - University has been filed by the Petitioner.

7. Petitioner has chosen to himself to argue this petition. Petitioner

as well as counsel for the Respondent - University have been heard

at length and the material on record and the judgment cited has been

perused.

8. The claim of the Petitioner for consideration for the grant of next

higher scale (Non-Functional Selection Grade) in December, 2001, W.P. (C) No.5527/2004 Page 3 alongwith Respondents No. 6 and 7, is based upon Government

Guidelines of Departmental Promotion Committees (Annexure P-4),

which provides that the zone of consideration for two vacancies

would be eight officials. The stand of the Respondent - University is

that the Guidelines (Annexure P-4) applies to regular promotions and

not for the purpose of granting next higher scale (Non-Functional

Selection Grade). This stand of the Respondent - University is duly

supported by the Office Memorandum (Annexure P-1) which clearly

mentions as under:-

"As NFSG (Non-Functional Selection Grade) is a segment of JAG (Junior Administrative Grade) and is also „non- functional‟ in character, appointment of NFSG is not promotion but merely placement in the year higher pay scale."

9. In view of the aforesaid, it becomes crystal clear that the grant

of next higher scale (Non-Functional Selection Grade) is not a

promotion and therefore, the Guidelines (Annexure P-5) would not

apply. Executive Council Resolution (Annexure P-6) of Respondent -

University nowhere states that Respondent No. 6 and 7 were unfit for

the grant of next higher scale (Non-Functional Selection Grade).

What is stated in (Annexure P-6) reads as under:-

"The Committee considered the self assessment proforme of Dr. J.L. Jain and Dr. (Mrs.) R. Lal, Senior Medical Officer Grade-I for their placement in the senior scale of Rs.4500-5700 revised to Rs.14,300-18,300 and after having interviewed them, the Committee recommended the case of:

W.P. (C) No.5527/2004 Page 4 Dr. J.L. Jain and Dr. (Mrs.) R. Lal be reviewed after one year."

10. Vide impugned order (Annexure P-11), Respondents No. 6 and

7, have been granted the next higher scale (Non-Functional Selection

Grade) with effect from 6th June, 2001, in terms of Office

Memorandum (Annexure P-1) which was adopted by the Respondent

- University on 6th June, 2001. This was done on the recommendation

of the Screening/Evaluation Committee, who had approved the

placement of Respondent No. 6 and 7 in the next higher scale (Non-

Functional Selection Grade). It is evident from the Office

Memorandum (Annexure P-1) that the grant of the next higher scale

(Non-Functional Selection Grade) has to be on the basis of

'suitability', which has been considered by the Screening/Evaluation

Committee, whose recommendations have been approved by the

Executive Council of the Respondent - University.

11. It is not within the domain of this court to sit over the evaluation

done by the Screening/Evaluation Committee and to determine as to

who is more suitable for placement in the next higher scale (Non-

Functional Selection Grade). The main emphasis of the Petitioner is

that when Respondents No. 6 and 7 were not found suitable for the

grant of next higher scale (Non-Functional Selection Grade) in

December, 2001, vide (Annexure P-6), then the grant of next higher

scale (Non-Functional Selection Grade) vide impugned order

(Annexure P-11) cannot be with retrospective effect, i.e., with effect

from 6th June, 2001.

W.P. (C) No.5527/2004 Page 5

12. To support the aforesaid stand, Petitioner relies upon the

observations made in "Prof. Najma Siddiqui vs. University of Delhi",

1998 (46) DRJ 216, which reads as under:-

"A person who was not selected by a duly constituted Selection Committee could not be given deemed date of promotion which happens to be even prior to the date of first Selection Committee met i.e. June, 1994. The first Selection Committee having rejected his application on 23rd June, 1994 the second Selection Committee vide its order dated 4th March, 1995 could not declare him eligible with retrospective effect nor that matter it could circumvent the decision of the first Selection Committee of 23rd June, 1994. By no stretch of imagination or law the appointment can relate back to January, 1994."

13. The aforesaid observations were made in a case of promotion

and they do not apply to the instant case as the present case is of

mere placement in the next higher scale (Non-Functional Selection

Grade). Even if it is taken that Respondents No. 6 and 7 were not

found suitable for the grant of next higher scale (Non-Functional

Selection Grade) in December, 2001, still, it would not mean that their

suitability determined in June, 2003 would not relate back to the date

of their entitlement, i.e., with effect from June, 2001. It is so said,

because their suitability was reviewed after one and half years,

whereas, it was required to be reviewed after one year. In the face of

Executive Council Resolution (Annexure P-6), had the review of

suitability of Respondents No. 6 and 7 had taken before one year,

W.P. (C) No.5527/2004 Page 6 then perhaps, the grievance of the Petitioner could have been

legitimate. It is not so, in the instant case.

14. Admittedly, Respondent No. 6 and 7 were and are senior to the

Petitioner. It is true that the law of appointment cannot relate back but

the grant of next higher scale (Non-Functional Selection Grade)

certainly relates back to the date of entitlement. Therefore, the

decision in the case of Prof. Najma Siddiqui (supra) is distinguishable

on facts and does not advance the case of the Petitioner in any

manner whatsoever.

15. In view of the aforesaid, no case for quashing the impugned

order (Annexure P-11) is made out as it does not suffer from any

illegality. Petitioner fails to establish the entitlement to the grant of

next higher scale (Non-Functional Selection Grade) with effect from

6th June, 2000. This petition is devoid of any substance and is hereby

dismissed.

16. This petition as well as pending application are accordingly

disposed of.

17. No costs.

Sunil Gaur, J.

September 15, 2009
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W.P. (C) No.5527/2004                                               Page 7