Jagdish Chand Bhardwaj & Anr. vs Delhi High Court & Ors.
2011 Latest Caselaw 1659 Del

                                                                         #42

*             IN THE HIGH COURT OF DELHI AT NEW DELHI


+                       Writ Petition (Civil) No.1910 of 2011


%                              DECISION DELIVERED ON: MARCH 23, 2011.


       JAGDISH CHAND BHARDWAJ & ANR.                        . . . PETITIONER

                             through :       Mr. R.K. Saini, Advocate.

                                   VERSUS

       DELHI HIGH COURT & ORS.                             . . .RESPONDENT

                             through:        Mr. Rajiv Bansal, Advocate for
                                             the DHC.
                                             Ms. Avnish Ahlawat with Ms.
                                             Latika Chaudhry, Advs. for the
                                             Respondent Nos. 2 & 3.

CORAM :-

       HON'BLE MR. JUSTICE A.K. SIKRI
       HON'BLE MR. JUSTICE M.L. MEHTA

       1.     Whether Reporters of Local newspapers may be allowed
              to see the Judgment?
       2.     To be referred to the Reporter or not?
       3.     Whether the Judgment should be reported in the Digest?


A.K. SIKRI, J. (ORAL)

1. The petitioners herein were the employees on the establishment

of the District and Sessions Judge, Delhi. They have already

retired on attaining the age of superannuation with effect from

30.11.2010 and 31.01.2011 respectively. However, they are

claiming promotion to the post of Superintendent and the plea is

that though the vacancies for the aforesaid post were available,

the petitioners were not considered for the said post and were

made to retire in the meantime. It is submitted that had there

been a Departmental Promotion Committee (DPC) in time to fill

up the available posts of Superintendent, the petitioners, who

were eligible for the said post, would have got the post of

Superintendent and would have retired as such. By non-

promotion of the petitioners to the said post, the petitioners were

made to suffer in terms of pension and retiral benefits, which they

would have got as Superintendent in case they were promoted.

On this facts, the following prayers are made:

" PRAYER

a) A writ of Certiorari calling for the record of the case and peruse the same;

b) A writ of certiorari quashing the action of the Respondents in causing administrative delay in considering the petitioners for promotion as Superintendent though they were in eligibility of consideration and there were sufficient vacancies, being illegal, arbitrary, discriminatory, unjust and unfair and suffering from legal malafides and in violation of the principles of equity, justice, good conscience and fair play;

c) A writ of Mandamus, commanding the Respondent to consider the petitioners for promotion to the post of Superintendent with effect from 3rd November, 2010 with all consequential benefits;

d) A Writ of Mandamus commanding the Respondent to pay the costs of this petition to the Petitioner;

e) Any other Writ order or direction as this Hon'ble Court may deem fit in the nature and circumstances of the case and in the interest of justice."

2. The admitted facts as stated in the petition are that in June,

2010, list of eligible candidates in the zone of consideration was

sent to the Registry of this Court for promotion of eligible

candidates to the post of Superintendent. The feeder cadre for

the aforesaid post consists of Senior Readers/Senior Assistants as

well as Stenographers. There were 18 vacancies of

Superintendent available at that time and steps were taken to fill

those posts. No doubt, the petitioners were also eligible to be

considered against these posts as per the extant rules.

Therefore, their names were also forwarded for consideration

along with other eligible candidates. The DPC was held, which

recommended the promotion of 18 employees as Superintendent

and orders dated 20.09.2010 were issued promoting 18 persons

as Superintendents. Names of the petitioners were not found in

the said list. It is not in dispute that all persons who were

promoted to the said posts were senior to the petitioners. Again,

it is also not in dispute that the persons promoted were eligible

and were validly promoted, as there is no challenge to the

promotion of those 18 persons.

3. It so happened that the cases of certain persons for promotion to

the posts of Administrative Officer were also considered at that

time. For the posts of Administrative Officer, Superintendents are

eligible as that is the feeder post. Six Administrative Officers

were promoted vide orders dated 20.09.2010 (when promotions

were made to the posts of Superintendents as well) from amongst

the existing Superintendents. This is how six posts of

Superintendents became available. It is, however, to be kept in

mind that these posts were not existing before 20.09.2010 and

became available only on 20.09.2010 when six persons already

holding the post of Superintendent were promoted as

Administrative Officer. It, therefore, naturally follows that a

decision for filling up of these posts was to be taken only after

that date, as before 20.09.2010 the posts of Superintendent

which were available were only 18 in number and exercise was

duly done for filling up of those posts.

4. The events further discusses that the steps were taken for filling

up of these posts as well. A requisition was made by the

Registrar General of this Court to the District & Sessions Judge,

Delhi to send the joint list of all eligible officials of Senior

Readers/Senior Assistants and Stenographers as per their present

seniority for filling up the posts/vacancies of Superintendents.

This requisition was sent vide letter dated 08.10.2010. In

pursuant to this direction, the District and Sessions Judge, Delhi

sent the joint list of eligible candidates on 03.11.2010. The first

meeting took place on 29.10.2010. The minutes of the said

meeting are produced. The DPC consisted of three Judges of this

Court. The minutes reveal that various items were taken for

consideration in the said meeting. However, insofar as the

promotion to the post of Superintendent is concerned, it was

deferred for some reasons. In the meantime, the petitioner No.1

was retired on attaining the age of superannuation with effect

from 30.11.2010. One more meeting thereafter was convened,

but in that meeting also this agenda could not be taken for

administrative reason. It was in these circumstances, the

petitioner No.2 also retired on 31.01.2011 after attaining the age

of superannuation. Thereafter, meetings took place on

15.02.2011, 28.02.2011 and on 14.03.2011.

5. After going through the minutes of the aforesaid meetings, it

cannot be said that the issue of promotion to the post of

Superintendent was deferred for some ulterior motive or on any

irrelevant consideration, but it was purely because of

administrative reasons. No mala fide or even legal malice can be

attributed in these circumstances.

6. It is stated at the cost of repetition that six vacancies of the

Superintendent arose only on 20.09.2010. There is no right much

less legal right to the petitioners on which the petitioners can

contend that steps be taken and posts be filled up immediately

after the vacancies have arisen. It is only a fortuitous

circumstance that when those vacancies of Superintendents

arose, the petitioners were about to retire and before the steps

could be taken, they stood retired. The petitioners in these

circumstances, cannot seek a mandamus in the nature of

direction to be given to the respondent to consider the case of the

petitioners for promotion to the post of Superintendent with effect

from 03.11.2010, as prayed. No such right exists in their favour.

7. Mr. R.K. Saini, learned counsel appearing for the petitioners, has

submitted that direction can be given for promotion to the higher

post retrospectively for a deemed or notional promotion as held

by the Apex Court in the case of K. Madhavan and Another Vs.

Union of India and Others (1987) 4 SCC 566. The Supreme

Court in the said case, laid down this principle only on the

consideration that when it is found that the DPC meetings are

postponed arbitrarily or mala fide resulting in denial of chances of

earlier promotion. In that very case on the facts of the case, the

Court concluded that postponement of DPC meetings were not

arbitrary or mala fide and dismissed the writ petition. This

judgment, therefore, shall have no bearing on the facts of the

case in view of our observations above. Another judgment, which

is cited by Mr. Saini is the Division Bench judgment of this Court

dated 05.10.2009 in W.P. (C) No.423-424/2006 in the case of

Union of India and Anr. Vs. S.K. Thakral where DPC was

convened and recommended the case of the respondent for

promotion to the post of Additional Director General of Works,

who was senior most Chief Engineer. Even the Defence Ministry

had granted approval. Going by this consideration, the Central

Administrative Tribunal had directed the petitioners to consider

the respondent to the post of Additional Director General of Works

with effect from the date when the respondent attains

superannuation in order to ensure that he gets the retiral benefit

of the said post. In the present case, there is no recommendation

by the DPC that the petitioners be promoted. The facts of this

case were entirely different from the instant case. Having regard

to the facts of this case, this Court in exercise of its extraordinary

judicial power under Article 226 of the Constitution of India

refused to interfere with the direction given by the CAT.

8. We, thus, do not find any merit in this writ petition, which is

accordingly dismissed.

(A.K. SIKRI) JUDGE

(M.L. MEHTA) JUDGE MARCH 23, 2011 pmc