Shiv Swarup Sharma vs Union Of India & Ors.
2011 Latest Caselaw 3532 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Date of Decision : 26th July, 2011

+                       W.P.(C) 12899/2005

      SHIV SWARUP SHARMA                    ..... Petitioner
               Through: Mr.Arun Bhardwaj, Advocate.

                             versus

      UNION OF INDIA & ORS.                .....Respondents
                Through: Mr.NareshKaushik, Advocate for
                         UPSC.

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
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?

PRADEEP NANDRAJOG, J. (Oral)

CM No.6488/2011

1. The respondents are served and we find only respondent No.4 appearing.

2. On the express statement of learned counsel for the petitioner that the writ petition would be argued today itself we dispose of the application and for the reason stated therein recall the order dated 4.4.2011 dismissing the writ petition in default.

3. The writ petition is restored for hearing on merits. WP(C) No.12899/2005

1. Heard learned counsel for the parties.

2. Inartistically drafted Original Application has resulted in the Central Administrative Tribunal losing focus and hence a decision which requires to be set aside and matter remanded to the Tribunal for fresh adjudication.

3. As India moves in the 2nd decade of the 21st Century and 2nd generation legal reforms are being pushed by the Government; with the history of the bar in India dating back to when the Chartered High Courts were set up in this country in the mid 18th Century; we hope and expect that the decision of the Supreme Court which requires pleadings in Courts in India to be construed liberally as if they are pleadings at a mufasil Court is got reversed by the bar itself, for the reason, we find such a low standard to be an insult upon an organization which professes to compete at the International level and surely it is not to be expected that in the modern world, a professional body expected to have high standards would be forging tools akin to a blacksmith in the village working with primitive implements.

4. Shiv Swarup Sharma is an officer of the Indian Custom and Central Excise Group „A‟ Service, which service he entered as a direct recruit.

5. In May 1991 he was promoted as a Deputy Commissioner, a post which has been re-designated as Joint Commissioner. He thought that the promotion was pursuant to a regular DPC. The department took the stand that it was an ad-hoc promotion and not a regular promotion.

6. A regular DPC met in the year 2002 wherein he was declared unfit for promotion and the result was that persons

junior to him were promoted as Joint Commissioner on regular basis.

7. He filed a representation in which he urged 2 points. Firstly, that he had been promoted in the year 1991 pursuant to a regular DPC and thus the question of his re- promotion could not be considered. Secondly, he questioned the DPC which met in March 2002 and considered his service records which were adverse, as pleaded by him, and not communicated to him.

8. The representation was rejected on 4.11.2003 and by the time Shiv Swarup Sharma filed OA 2785/2003 before the Tribunal, further promotion was effected to the post of Commissioner.

9. In the Original Application, Shiv Swarup Sharma stated that the stand of the department of his promotion in the year 1991 being ad-hoc was not correct. Alternatively, he questioned the DPC which met in March 2002, assessing his suitability with reference to his adverse service record, which statedly was not communicated to him. So alleging, he pleaded that he would be entitled to be treated as promoted as Joint Commissioner w.e.f. the date he was superseded and thus would be entitled to be promoted as a Commissioner.

10. Making aforesaid pleadings, albeit inchoately, prayer made was as under:-

"I. Quash and set aside the impugned order dated 4.11.2003, vide which the representation of the applicant has been illegally rejected. Direct the respondents to hold that the DPC of 1991 was a regular DPC.

II. Direct the respondents consequently to consider the applicant for promotion to the post of

Commissioner on the basis of records after 1991, w.e.f. the date his immediate junior was promoted and with all other consequential benefits.

III. Any other relief, which this Hon‟ble Tribunal may deem fit and proper in the circumstances of the case, may also be passed in favour of the applicant.

IV. Cost of the proceedings be awarded in favour of the applicant and against the respondents."

11. Relevant would it be to note that the prayer clause is equally inartistically worded.

12. After praying that the rejection order dated 14.11.2003 be quashed, it ought to have been prayed that a Review DPC be directed to be held, at which DPC the record which was adverse to him and which was considered by the DPC which met in March 2002, should be ignored. It further had to be prayed that if at the Review DPC he was held fit to be promoted, directions should be issued that he should be so promoted with all consequential benefits and thereafter it ought to have been prayed that one of the consequential benefits would be a direction to promote the petitioner to the post of Commissioner with effect from the date persons junior to him were promoted.

13. The result of the inartistically drafted pleadings and the prayer, is that the Tribunal, after noting the relevant facts and opining that petitioner‟s promotion in the year 1991 was ad-hoc and that the DPC which met in March 2002 was the first DPC which met, non suited the petitioner by returning a finding in para 13 of the impugned order which reads as under:-

"13. A fatal law that occurs is that though the applicant assails the order and claims the relief that he should be promoted as Commissioner in his Department from the date his juniors were promoted but he does not challenge the order that had earlier been passed ignoring him from promotion to the post of Joint Commissioner which was earlier known as Deputy Commissioner in the Department. This is a fatal flaw. The post of the Joint Commissioner is a feeder post to the post of Commissioner. In the absence of challenge to that, indeed the applicant cannot succeed because necessarily he must get himself promoted as Joint Commissioner in the first instance."

14. It is apparent that since the Tribunal has held that the petitioner had not questioned the promotion to the post of Joint Commissioner, he could not have questioned the promotion to the post of Commissioner. The reason is: if the petitioner misses the bus at point „A‟ and qua his missing the bus raises no grievance, he has to trail behind in the journey thereafter and cannot question his missing the bus at point „B‟.

15. But, as noted hereinabove, we find that the petitioner has questioned his supersession for the post of Joint Commissioner and in respect whereof we find that Grounds „B‟ and „F‟ have been specifically averred after the narration of facts in the Original Application. That apart, when the petitioner prayed in the relief clause that the impugned order dated 4.11.2003 be set aside, it was but natural that he was questioning his supersession to the post of Joint Commissioner.

16. Meaningfully read, on the standards of pleadings at a mufasil level, which we require as the standard to be adopted to give meaning to a pleadings, we find that the petitioner has challenged his supersession to the post of Joint

Commissioner. Accordingly, finding that the Tribunal has not dealt with the challenge raised by the petitioner to his being superseded as a Joint Commissioner, we dispose of the writ petition setting aside the impugned order dated 22.11.2004.

17. OA No.2785/2007 is restored for adjudication by the Tribunal.

18. No costs.

19. DASTI.

(PRADEEP NANDRAJOG) JUDGE

(SUNIL GAUR) JUDGE JULY 26, 2011 dk