Yashpal vs Union Of India And Others
2010 Latest Caselaw 1195 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+              W.P. (C.) No.1261/2010 & CMs No.2645-46/2010

%                        Date of Decision: 03.03.2010

Yashpal                                                   .... Petitioner
                         Through Mr.R.K. Vats, Advocate

                                  Versus

Union of India and others                             .... Respondent
                      Through Mr.Sameer Choudhary, Advocate for
                              the respondent No.1/UOI.
                              Mr.Amitabh Marwaha, Advocate for the
                              respondents No.2 and 3.
                              Mr.Amandeep Joshi, Advocate for the
                              respondent/GNCTD.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

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 in            NO
      the Digest?


ANIL KUMAR, J.

*

The petitioner, Shri Yashpal, who had been awarded punishment

of censure on 5th September, 2000; 14th December, 2000; 11th July,

2007 (3 censures) and 18th December, 2008, had challenged his

consideration for promotion in the DPC held on 13th January, 2009

following the guidelines dated 29th December, 2008 contending that

since the vacancies had arisen prior to 29th December, 2008, therefore,

the DPC should have followed the guidelines dated 7th February, 2005,

which prayer was declined by the Tribunal in OA No.1011 of 2009 titled

Shri Yashpal v. Union of India and others by order dated 4th September,

2009 which is challenged by the petitioner in the present writ petition.

According to the petitioner, 7612 vacancies had occurred on 26th

September, 2008 and communicated to Commissioner of Police on 18th

November, 2008, therefore, the DPC which was held on 13th January,

2009 should have followed the circular dated 7th February, 2005 and

not the circular dated 29th December, 2008 laying down the guidelines

for DPC.

The Departmental Promotion Committee is constituted for

ascertaining the promotion of the personnel under Rule 8 of Delhi Police

(Promotion & Confirmation) Rule, 1980. Rule 17 contemplates that

confirmed Sub Inspector (Executive) who have put in a minimum of six

years service in the rank of Sub Inspector shall be eligible and the

selection shall be made on the recommendation of the DPC.

This is not disputed that the guidelines are issued from time to

time crystallizing parameters to be followed for admission to promotion

list. The salient features of the guidelines of 7th February, 2005

contemplated that suitability of the employees for promotion shall be

their service records with particular reference to confidential reports for

five preceding years and officers having at least three „Good‟ and „Above

Average‟ reports without any „Below Average‟ or „Adverse‟ report even for

a small period during last five years would be empanelled. The service

record during preceding 10 years was to be taken into account with

particular reference to the gravity and continuity of punishment and

punishment on account of corruption and moral turpitude, was to be

viewed seriously. Officers having been awarded major/minor

punishment in preceding five years on charge of corruption, moral

turpitude and gross dereliction of duties were not to be empanelled,

however, officers who had been awarded censure during last six months

could be allowed to be brought on promotion list.

These guidelines issued on 29th December, 2008 also

contemplated assessment of the suitability of personnel on the basis of

their service record with particular reference to the confidential report

for five preceding years irrespective of qualifying service prescribed in

the service or recruitment rules. The new guidelines also contemplated

that the officers may not be empanelled in case of major punishment

awarded to them during preceding five years on the charge of

corruption, moral turpitude, gross dereliction in discharge of duties and

even the officers awarded any minor punishment in preceding five years

on charge of corruption, moral turpitude, etc., may not be empanelled.

The petitioner on the basis of information rendered to him under

Right to Information Act, 2005 had asserted that the vacancies of the

Inspector (Executive) for financial year 2008-2009 were drawn up on

16th September, 2008 and the Government of India had sanctioned

7612 additional posts in various ranks including Inspector (Executive).

This was also averred by the petitioner that the approval for creation of

7612 posts was conveyed by letter dated 18th November, 2008 by the

Ministry of Home Affairs and the DPC held on 13th January, 2009, had

recommended for promotion of 73 Sub Inspector (Executive) as

Inspector (Executive), however, the petitioner was not promoted by said

order.

Before the Tribunal, the petitioner had challenged the

proceedings of the DPC solely on the ground that since the vacancies

had been created in November, 2008, therefore, DPC which was held on

13th January, 2009 should have followed the guidelines issued on 7th

February, 2005 and not on 29th December, 2008. According to

petitioner he has a vested right for consideration for inclusion in

promotion list „F‟. He contended that consideration for promotion had

necessarily to be based on the circular dated 7th February, 2005 as the

circular dated 29th December, 2008 was not in existence on that date

the vacancies had arisen. Learned counsel for the petitioner had also

relied on Chairman Railway Board and Others v. C.R. Rangadhamaiah

and others, AIR 1997 SC 3828; Y.V. Rangaiah and others v. J.

Sreenivasa Rao and Others, AIR 1983 SC 852; Hira Lal v. Government

of NCT of Delhi and others, 2002 II AD (Delhi) 878 (Delhi High Court);

Maharashtra State Road Transport Corpn. And others v. Rajendra

Bhimrao Mandve and others, (2001) 10 SCC 51; and Ashok Kumar v.

Slum and J.J. Deptt., MCD and others, 2005 VII AD (Delhi) 429 (Delhi

High Court) in support of his plea and contentions.

The respondents had opposed the claim of the petitioner

contending inter alia that DPC had full discretion to devise its own

method and procedure for objective assessment of the suitability of the

candidates based on the guidelines for DPC circulated by Department of

Personnel and Training (DoPT) by Office Memorandum dated 10th April,

1989. According to respondents, the DPC was constituted for financial

year and the latest guidelines in existence on the date of meeting of the

DPC were, therefore, considered and as the DPC had been held on 13th

January, 2009, therefore, the latest guidelines of 29th December, 2008

were taken into consideration.

The Tribunal considered the judgments relied on by the petitioner

and distinguished them as they were for selection on the basis of

examination etc. and held that the precedents relied on by the

petitioner were clearly distinguishable. In Maharashtra State Road

Transport Corpn. and others (supra), it was noticed that the circulars

issued were inadequate and rather did not contain any reference to the

driving test and therefore, weightage was to be given only for written

test and interview. The clarificatory circular was also issued, however,

on the basis of the ratio of the same judgment, it cannot be held that

the DPC which held on 13th January, 2009 should not have followed the

guidelines of 29th December, 2009. The Tribunal also found the case of

Ashok Kumar (supra) to be tangentially different and also observed that

another judgment relied on by the petitioner, i.e., Siraj Khan and others

v. Union of India, 2004 (78) DRJ 137 (Delhi High Court) were again far

off the marks.

Considering the precedents relied on by the petitioner, this Court

is also of the opinion that the said precedents have no application in the

present case of the petitioner. It cannot be disputed that the ratio of any

decision must be understood in the background of the facts of that

case. What is of the essence in a decision is its ratio and not every

observation found therein nor what logically follows from the various

observations made in it. It must be remembered that a decision is only

an authority for what it actually decides. It is well settled that a little

difference in facts or additional facts may make a lot of difference in the

precedential value of a decision. The ratio of one case cannot be

mechanically applied to another case without having regard to the fact

situation and circumstances in two cases. The Supreme Court in

Bharat Petroleum Corporation Ltd and Anr. v. N.R.Vairamani and Anr.

(AIR 2004 SC 778) had held that a decision cannot be relied on without

considering the factual situation. In the judgment the Supreme Court

had observed:-

" Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.

In P.S.Rao Vs State, JT 2002 (3) SC 1, the Supreme Court had

held as under:

". There is always a peril in treating the words of judgment as though they are words in a legislative enactment and it is to be remembered that judicial utterances are made in setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusion in two cases."

In Rafiq Vs State, (1980) 4 SCC 262 it was observed as under:

"The ratio of one case cannot be mechanically applied to another case without having regard to the fact situation and circumstances obtaining in two cases."

On perusal of the precedents relied on by the petitioner, it is

apparent that they are distinguishable and the petitioner cannot claim

the relief on the basis of the ratio of the same. Even in C.R.

Rangadhamaiah (supra), the maximum limit of running allowance for

computation of pension and retirement benefit were reduced

retrospectively and it had affected all the retired employees. In the

circumstances it was held that retrospective reduction was in violation

of Articles 14 and 16 of the Constitution. The ratio of the said judgment

has no application to the present facts and circumstances of the case of

the petitioner. Similarly, in Y.P Rangaiah (supra), the rules provided

that panel for promotion would be prepared by September of each year,

however, for 1975, panel was not prepared on 1st September, 1976 and

was delayed for more than one year and thereafter the rules had been

amended in March 1977. In contra distinction, for the panel which

was to be prepared in 2008-2009, in case of the petitioner, the

promotion list was drawn up on 16th September, 2008 and the DPC had

considered it on 13th January, 2009 and had recommended the

promotion according to the latest guidelines of 29th December,2009.

Consequently, the ratio of Y.P. Rangaiah (supra) relied on by the

petitioner is also not applicable to the facts and circumstances of the

case of the petitioner.

Learned counsel for the petitioner has also very emphatically

relied on guidelines on Departmental Promotion Committee, Part II,

dealing with frequency of Departmental Promotion Committee Meeting‟s

clause 3.1. The relevant clause 3.1 is as under:-

"3.1 The DPCs should be convened at regular annual intervals to draw panels which could be utilised on making promotions against the vacancies occurring during the course of a year. For this purpose it is essential for the concerned appointing authorities to initiate action to fill up

the existing as well as anticipated vacancies well in advance of the expiry of the previous panel by collecting relevant documents like CRs, integrity certificates, seniority list etc. for placing before the DPC. DPCs could be convened every year if necessary on a fixed dated , e.g., 1st April or May. The Ministries/Departments should lay down a time schedule for holding DPCs under their control and after laying down such a schedule the same should be monitored by making one of their officers responsible for keeping a watch over the various cadre authorities to ensure that they are held regularly. Holding of DPC meeting need not be delayed or postponed on the ground that recruitment rules for a post are being reviewed/amended. A vacancy shall be filled in accordance with the recruitment rules in force on the date of vacancy, unless rules made subsequently have been expressly given retrospective effect. Since amendments to recruitment rules normally have only prospective applications, the existing vacancies should be filled as per the recruitment rules in force."

Perusal of Clause 3.1 reveals that it contemplates that holding of

DPC meeting is not to be delayed or postponed on the ground that

recruitment rules for a post are being reviewed/amended and a vacancy

is to be filled in accordance with the recruitment rules in force on the

date of vacancy, unless Rules made subsequently had been expressly

given retrospective effect. This is not the case of the petitioner that

hooding of DPC was delayed or postponed on account of any

amendment in the recruitment rules. Delhi Police (Promotion &

Confirmation) Rules, 1980 had not been amended nor for any proposed

amendment, the DPC was postponed nor there is any delay in holding

the DPC as the promotion list for 2008-2009 was drawn up on 16th

September, 2008 and the DPC was held on 13th January, 2009.

This also cannot be disputed by the learned counsel for the

petitioner that DPC has full discretion to devise its own method and

procedures for objective assessment of the suitability of the candidates

as per the guidelines for DPCs circulated by the Department of

Personnel and Training (DoPT) by its Office Memorandum dated 10th

April, 1989. The guidelines dated 29th December, 2008 are not alleged

to be not in consonance with and in accordance with the guidelines of

DoPT. In the circumstances, it cannot be contended by the counsel for

the petitioners that the guidelines of 7th February, 2005 should have

been followed by the DPC which met on 13th January, 2009 when the

guidelines dated 29th December, 2008 had already come in existence

which guidelines are also in consonance with DoPT Memorandum dated

10th April, 1989. This has also not been disputed by the petitioner that

there is no discrimination in consideration of all the candidates by the

DPC and the right of the respondents to frame the guidelines has not

been denied. The petitioners have also not contended that the

guidelines dated 29th December, 2008 are perverse or suffers from any

other lacunas. In the circumstances merely because the name of the

petitioner has not been recommended, it cannot be held that the

guidelines of 29th December, 2008 should not have been followed by the

DPC held on 13th January, 2009.

For the foregoing reasons and in totality of facts and

circumstances, this court does not find any illegality or irregularity in

the order of the Tribunal which would require 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.

All the applications are also disposed of.

ANIL KUMAR, J.

March 03, 2010                                    MOOL CHAND GARG, J.
'rs/Dev'