Union Of India vs Shri Bhim Sen & Anr.
2010 Latest Caselaw 3437 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                               Reserved on: 13.07.2010
%                                                          Date of decision: 22.07.2010

+                               WP (C) No.424 of 1999


UNION OF INDIA                                               ...PETITIONER
                                Through:        Mr. Sachin Datta &
                                                Ms. Gayatri Verma, Advocates


                                          Versus


SHRI BHIM SEN & ANR.                                         ...RESPONDENTS
                                Through:        Mr. M.P. Raju & Ms. Maria,
                                                Advocates for R-1.


CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MR. JUSTICE VALMIKI J. MEHTA

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

2.        To be referred to Reporter or not?                    Yes

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


SANJAY KISHAN KAUL, J.

1. Respondent No.1, Shri Bhim Sen, joined the National Sample Survey

Organization (for short „NSSO‟) as Assistant Director in the Data

Processing & Survey Design and Research Division on 20.4.1976.

This post was outside the Indian Statistical Service (for short „ISS‟).

The said private respondent proceeded to the Planning Commission,

Delhi as Senior Programmer on 31.12.1981 on being selected by the

UPSC while retaining his lien on the post of Assistant Director,

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NSSO. The private respondent opted for appointment in Grade IV of

ISS on 16.2.1983 as the process of encardrement in ISS was in

progress. The post was ultimately encardred on 13.9.1983. The said

private respondent was appointed as a departmental candidate in

Grade IV of ISS on 3.7.1985 in pursuance to a recommendation by

the UPSC.

2. A judgement came to be delivered by the Supreme Court in Narendra

Chadha Vs. Union of India 1986 (2) SCC 157 holding that the ad hoc

appointees to Grade IV of ISS be treated as having been appointed to

Grade IV on a regular basis in terms of the provisions of Rule 8 (1)

(a) (ii) of the ISS Rules, 1961 (hereinafter referred to as the said

Rules) and be given seniority from the dates of their continuous

officiation. In pursuance to this judgement a revised seniority list of

Grade IV officers of ISS was prepared on 8.5.1986 and in pursuance

thereto on 22.5.1986 promotions from Grade IV to Grade III of ISS

were also reviewed and fresh orders passed. The private respondent,

thus, came to be promoted w.e.f. 6.1.1981 on the basis of reservation

in promotion as the private respondent belonged to the Scheduled

Caste category. The private respondent further earned his promotion

to the post of Junior Administrative Grade on 30.3.1988.

3. The second and a crucial development was that one Shri T.R.

Mohanty, a candidate from the General category, filed an OA before

the Central Administrative Tribunal (for short „CAT‟), Calcutta

Bench, being OA No.336/88 challenging an order dated 24.11.1987

by which eight (8) other SC/ST officers were promoted from Grade

IV to Grade III. This application was allowed on 28.11.1988 but the _____________________________________________________________________________________________

promotion of reserved category officers was not disturbed. It appears

that to obviate the consequences, Rule 13 of the said Rules was

amended with retrospective effect from 27.11.1972 by a Gazette

Notification dated 20.2.1989 so as to make promotions subject to

executive instructions. The Union of India also filed a Special Leave

Petition against the order dated 28.11.1988 of the CAT. This appeal

came to be decided by the Supreme Court in Union of India Vs. T.R.

Mohanty 1994 (5) SCC 450. The Supreme Court struck down the

retrospective operation of the amended Rule 13. We may note that,

in the mean time, the private respondent was given the non-functional

selection grade w.e.f. 9.9.1992.

4. The effect of the aforesaid litigation was that the out of turn

promotion given to Scheduled Caste candidates on the interpretation

of existing Rules was held to be illegal by the CAT and the

subsequent endeavour to amend the Rule retrospectively did not

prove successful in view of the judgement of the Supreme Court

though prospectively there was no difficulty in its application.

5. The result of the aforesaid caused problems for the petitioner/Union

of India in fixation of seniority which resulted in a clarification

application being filed before the Hon‟ble Supreme Court in Union

of India Vs. T.R. Mohanty case (supra). It was stated in the

application that the said Rules prior to February, 1989 did not

provide for reservation in appointments to promotional posts though

there were executive instructions to that effect since 1972 and in view

of the judgement in Narendra Chadha case (supra) it became

necessary to redraw the seniority list and to review promotions made _____________________________________________________________________________________________

till then. The seniority list of level Grade IV of ISS was revised and

redrawn. Promotions were also correspondingly revised with

retrospective effect and orders were passed on 22.5.1986

implementing the same and further promotions were effected by the

order dated 1.9.1987 and 24.11.1987. Narendra Chadha case (supra)

protected the officers who may be affected by way of reversions.

However, while granting promotions under the order dated

22.5.1986, 1.9.1987 and 24.11.1987 along with two other orders

covering the reserved category officers the Government gave effect

to the executive instructions of 1972 by giving promotions to the

reserved category SC/ST officers who thereby superseded many

general category officers senior to them in Grade IV level. This had

resulted in Shri T.R. Mohanty challenging the supersession before the

CAT. The supersession of Shri T.R. Mohanty was held to be illegal

and he was directed to be placed above eight (8) reserved category

officers though promotions given to the 8 reserved category officers

were not to be disturbed. It is thereafter that Rule 13 of the said

Rules was amended to make it retrospectively applicable but the

retrospectivity was not upheld.

6. The difficulty was mentioned in para 15 of the application as under:

"15. All the promotions given to SC/ST category officers by the said orders dated 22.5.1986, 1.9.1987 and 24.11.1987 (Annexures 2, 3 & 4) and 2 other orders mentioned above are, as held by the Hon‟ble Supreme Court, invalid. If, however, none of these promotions invalidly made are to be disturbed and the general category officers have to be placed above and senior to the reserved category officers in the respective positions now being occupied by them, the structure of the entire cadre will drastically change. Huge number of posts will have to be created at the higher levels.

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(a) Annexure 8 is a statement listing reserved category candidates now in Grade III. As explained in the statement if their positions are not to be disturbed and general category officers senior to them are promoted and placed above them, a total number of 423 additional posts will have to be created in Grade III.

(b) Similarly, Annexure 9 is a statement listing reserved category candidates now in the Junior Administrative Grade. As explained in the statement if their positions are not to be disturbed and general category officers senior to them are promoted and placed above them, a total number of 300 additional posts will have to be created in the Junior Administrative Grade.

(c) Similarly, Annexure 10 is a statement listing reserved category candidates now in the Non Functional Selection Grade. As explained in the statement if their positions are not to be disturbed and general category officers senior to them are promoted and placed above them, a total number of 124 additional posts will have to be created in the Non Functional Selection Grade.

It may be clarified that many of the incumbents, particularly in Grade III, have since retired but the above posts would have to be created to give them monetary benefits. However, as on 1.3.95 about 40 additional posts in the Non Functional Selection Grade and about 49 in the Junior Administrative Grade are required to be created to accommodate incumbents. There will be no officers in Grade III unless filled up by large scale promotions and even then 89 posts in Grade III (or Grade IV) will have to be kept in abeyance. All this will create imbalance in the cadre and will also cause severe operational problems till such time the excess over the sanctioned strength in JAG and NFSG is adjusted against the cadre posts."

7. The aforesaid application was disposed of by the Supreme Court in

Union of India & Ors. Vs. T.R. Mohanty & Ors. 1995 Supp. (3) SCC

591. The operative portion is reflected in para 6 which reads as

under:

"6. After hearing the learned counsel for the parties, we are of the view that the judgement of this Court upholding the judgement of the Tribunal has to be implemented. Appreciating the difficulties highlighted by the Union of India in this application, we are of the view that the Union of India should

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make all efforts to protect the promotions of Scheduled Caste candidates, if possible. We are further of the view that if in the implementation of the directions given by this Court, it becomes necessary to revert the Scheduled Caste candidates from the higher posts to which they have been promoted under the existing rules (unamended) or under the amended rules, that may be done and we modify the Tribunal‟s judgement to that extent. We, however, make it clear that any financial benefits given to the Scheduled Caste candidates while working in the higher posts, shall not be withdrawn and be protected as personal to them. We further make it clear that Mr. Mohanty shall be entitled to the relief keeping in view his position in seniority so far as the general category candidates are concerned. If in the process he is reverted to the lower post no recovery shall be effected from him in respect of money already paid to him."

8. The net result of the aforesaid was that in view of the difficulty

expressed by the Union of India requiring large number of posts to be

created, reversion of SC officers from higher posts to which they had

been promoted under existing Rules unamended or under the

amended Rules was permitted though all efforts to protect the

promotions of such SC officers was to be made, if possible. The

financial benefit to the said SC category officers, however, was not to

be withdrawn and was to be protected.

9. The petitioner/Union of India thereafter passed an Office Order dated

4.1.1996 noticing all the aforesaid facts and issuing a revised

promotion order.

10. The private respondent submitted a representation dated 11.4.1996

for refixation of seniority. The private respondent stated in the

representation that he would not have opted for ISS Grade III and

would have continued in the Planning Commission if he had known

that this fate would befall him. The redrawing of seniority list,

according to the private respondent, deprived him of the benefits of

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Senior Programmer which post he got through UPSC direct

recruitment. However, this representation did not find favour as per

Office Memorandum dated 2.9.1996.

11. It is at this stage that the private respondent filed an OA before the

CAT, Principal Bench, New Delhi seeking to set aside and quash the

order dated 4.1.1996 to the extent it effected promotion of the private

respondent. The OA was contested by the petitioner herein but the

CAT in terms of the impugned order dated 27.10.1998 found in

favour of the private respondent. The only issue which was urged for

consideration and decided is as set out in para 13 of the impugned

order, i.e. whether the principles of natural justice were violated

while issuing the order dated 4.1.1996. The CAT was of the view

that fair hearing ought to have been granted to the private respondent

giving him an opportunity to present his case before issuing the order

dated 4.1.1996. The Union of India challenged this order by filing

the present writ petition under Article 226 of the Constitution of India

and the operation of the impugned judgement was stayed vide order

dated 28.10.1999. The interim order continued and the private

respondent has retired in the mean time. Thus, the only relief which

would arise in case the petition is to be dismissed is the monetary

consequences. It may be noticed that insofar as monetary benefits

received by the private respondent while working on the promoted

post are concerned the same are already protected by the order of the

Supreme Court in the clarification application. Thus, the only

question would be that if the private respondent had continued to

work on the promoted post (which he actually did not) he would have _____________________________________________________________________________________________

been entitled to certain emoluments and whether those emoluments

should be granted to him even though he has not worked on that post

on account of the fact that the order dated 4.1.1996 was issued in

violation of principles of natural justice.

12. Learned counsel for the petitioner canvassed before us that principles

of natural justice cannot be put in a straight-jacket formula and the

said principles should not apply where at least no prejudice is shown.

Learned counsel has drawn our attention to the observations made in

the impugned judgement itself in para 15 to the following effect:

"15. From the nature of the case, it would appear that a fair hearing, if allowed, would have made no difference."

13. Learned counsel, thus, submitted that while noticing that what was

perceived as a fair hearing would have made no difference yet the

OA has been allowed on the ground of violation of principles of

natural justice. Learned counsel relied upon the judgement in Ashok

Kumar Sonkar Vs. Union of India (2007) 5 SCC 54. Learned

counsel also sought to support his plea on the ground that the

reversion order was neither in the nature of a punishment nor

stigmatic as they were the consequence of the legal position

propounded by the Supreme Court and in this behalf relied upon

National Aviation Company of India Vs. S.M.K. Khan (2009) 5 SCC

732. Learned counsel also referred to a recent judgement of the

Supreme Court in Rupa Rani Rakshit & ors. Vs. Jharkhand Gramin

Bank & Ors. (2010) 1 SCC 345 holding that wrong promotions

continuing for even about ten (10) years do not create equities in

favour of the persons promoted wrongly. It was submitted that in the

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present case it is the Supreme Court which has laid down law as to

why promotions were wrong and despite this, at least, the monetary

benefits were protected.

14. Learned counsel for respondent No.1, on the other hand, sought to

support the impugned judgement that the promotions given as per

OM dated 27.11.1972 could not be called into question because the

OM was not struck down and the setting aside of the retrospectivity

of Rule 13 of the said Rules could not affect the promotion granted to

respondent No.1. The aspect of respondent No.1 having opted for

Grade III service in ISS post on the then existing position was also

emphasized. The judgement in Union of India Vs. T.R. Mohanty

case (supra) had not directed any reversion to be necessarily made.

15. We have given a thought to the rival contentions to appreciate the

peculiar position which has emerged albeit in pursuance to the

Supreme Court directions. The promotions made in pursuance to the

OA and the consequent placing of Shri T.R. Mohanty below the

reserved category candidates was struck down by the CAT. The

endeavour of the Government to get over this aspect where

promotions were being made in pursuance to an administrative order

by amending Rule 13 of the said Rules retrospectively also did not

succeed before the Supreme Court as the said Rule was held to have

only prospective effect. The result of this was that the seniority list

had to be redrawn but if persons promoted were not to be demoted, a

large number of posts had to be created. This difficulty was

expressed by the Union of India in the clarification application in

para 15 which has been extracted hereinbefore. It is at that stage that _____________________________________________________________________________________________

the Supreme Court passed an order on this clarification application

permitting the Union of India to make consequent demotions on

redrawing the seniority list if it was not possible to do so otherwise.

The monetary benefits were, however, still protected.

16. The fact that it was not otherwise possible is quite apparent from the

clarification application itself as the alternative was to create a large

number of posts for which the Union of India was not willing and

that is what gave rise to the application for clarification. Thus, the

order impugned before the CAT by private respondent No.1 dated

4.1.1996 was issued in pursuance to the clarification obtained from

the Supreme Court. In such a scenario unless the redrawing of

seniority was contrary to the Supreme Court judgement, there was

nothing really to be said.

17. Be that as it may the undisputed fact is that the private respondent did

make a representation against the Office Order dated 4.1.1996 on

11.4.1996 which was examined but was rejected on 2.9.1996. The

private respondent, thus, did have the opportunity to represent against

the redrawing of seniority and the demotion as a consequence of the

Supreme Court order. The representation of the private respondent

was examined but was found to be without merit.

18. We are, thus, of the considered view that it can hardly be said that

there was lack of adequate opportunity to the private respondent and

the only ground on which the OA has been allowed is that the

principles of natural justice have been violated. The chance to make

a representation subsequently to the Office Order dated 4.1.1996, in

our considered view, is sufficient opportunity to represent in the _____________________________________________________________________________________________

given facts of the case as no hard and fast rule can be laid in this

behalf. The CAT has, in fact, granted relief while noticing that even

if any prior representation opportunity was granted it would have

been a futile one and this part we have extracted above. There

would, thus, be no purpose in having a futile exercise being carried

out. This is, of course, being observed even though, in our

considered view, opportunity was, in fact, granted by consideration

of the representation of the private respondent to the Office Order

dated 4.1.1996.

19. Lastly, we may observe that the monetary benefits given to

respondent No.1 during the period of his service in the promoted post

were protected by the order passed by the Supreme Court on the

clarification application of the petitioner. The private respondent has

not worked on the promoted post for the remaining period for which

he is claiming monetary benefit. The private respondent has retired

and thus, there is no question of actual promotion or any other benefit

to respondent No.1 in the given facts of the case.

20. We, thus, set aside the impugned order dated 27.10.1998 of the CAT

and make the rule absolute leaving the parties to bear their own costs.

SANJAY KISHAN KAUL, J.

JULY 22, 2010                                           VALMIKI J. MEHTA, J.
b'nesh

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