M.J. Joseph vs Upsc & Ors.
2011 Latest Caselaw 4684 Del

*           THE HIGH COURT OF DELHI AT NEW DELHI

%                     Decision Delivered On: 22nd September, 2011

+                       WP(C) No. 1671 of 2002

      M.J. JOSEPH                               ... PETITIONER
                             Through:   Mr. G.V. Rao, Mr.           A.K.
                                        Upadhyay, Advocates

                              VERSUS

      UPSC & ORS.                               ... RESPONDENTS
                             Through:   Mr. J.P. Sharma, Adv. for
                                        UOI
                                        Ms. Geeta Luthra, Sr. Adv.
                                        with Mr. Sanjeev Sahay,
                                        Mr.Abhishek, Advs. for R-6

      CORAM :-
      HON'BLE MR. JUSTICE A.K. SIKRI
      HON'BLE MR. JUSTICE SIDDHARTH MRIDUL


A.K. SIKRI, J. (ORAL)

1. This writ petition is preferred against orders dated 30.8.2001

whereby OA of the respondent had been allowed by the

learned Tribunal. The petitioner also impugns orders dated

23.11.2001 passed by the Tribunal whereby his review

application was also dismissed. The issue involved is in a

narrow compass. The dispute relates to the seniority of the

respondent vis-à-vis the petitioner and respondents No.7

and 8. All of them are direct recruits of 1979 batch of the

Indian Civil Accounts Service (ICAS). The respondent No.6

was above petitioner and respondents No.7 and 8 in the

merit list of 1979 batch and, therefore, at the time of

appointment, he was ranked senior to them. All of them

joined in Junior Time Scale of ICAS. Thereafter, they were

promoted to Senior Time Scale, Junior Administrative Grade

and subsequently were given selection grade of Junior

Administrative Grade.

2. Events took a turn when their cases were considered for

next promotion to the post of Senior Administrative Grade.

This promotional level is governed by Rule 20(1)(v) of ICAS

Rules which prescribes that appointment to this grade is by

selection on merit from amongst officers who have put in

eight years regular service in JAG (including service, if any,

in non-functional grade of JAG) or 17 years regular service in

Group „A‟ post of which at least four years regular service

shall be in JAG. Though during the year 1995-96, one

vacancy in SAG arose with effect from 31.1.1996, however,

as on that date, neither the petitioner nor respondents No.6

to 8 were eligible to be considered as they had not put

requisite length of service prescribed in Rule 20(1)(v) of

ICAS Rules. Accordingly, no promotion was made in that

year. Thereafter, two vacancies arose in August-October,

1996-97 and one vacancy arose on 1.2.1997. Thus, total

three vacancies arose in the year 1996-97. The respondent

No.3 sent proposal to the UPSC vide letter dated 6.11.1996

for preparing a panel of suitable officers for filling up of

these vacancies. DPC met for this purpose on 21.10.1997.

CR dossiers, integrity certificates, inter se seniority of the

candidates, etc. were placed before the DPC. DPC assessed

the comparative merit of all these candidates, namely,

petitioner as well as Respondents 6 to 8 and recommended

the panel in the following order:

      (i)     Shri M.J. Joseph (Petitioner)

      (ii)    Shri S.M. Kumar (Respondent No.6)

(iii) Shri P.J. Vincent (Respondent No.7)

(iv) Shri Jawahar Thakur (Respondent No.8)

3. This panel was forwarded to Respondent No.3, i.e. the

Controller General of Accounts, Ministry of Finance.

Approval of the Finance Minister was taken on 18.2.1997.

Thereafter, approval of Appointment Committee of Cabinet

was also obtained on 21.4.1997. After doing these

requisites, promotion orders were issued. Since the name of

the respondent No.8 was at the bottom, i.e. after the

petitioner and respondents No.6 and 7 as Sr. SAG, the

respondent No.8 became junior to the petitioner and

respondents No. 6 and 7. It is under these circumstances

that the Respondent No.8 approached the Tribunal by filing

the OA submitting that he was senior to the petitioner and

respondents 6 and 7 herein and had equally good ACRs and,

therefore, he could not be downgraded by the DPC. The

Tribunal found that Respondent No.8, petitioner as well as

respondents No.6 and 7 herein had the following ACRs:

Petitioner Respondent Respondent Respondent No.6 No.7 No.8

1988-89 O O VG+ O 1989-90 O O VG+ O 1990-91 O O O VG 1991-92 O O O O 1992-93 O O O O 1993-94 O O O O 1994-95 O VG+ O VG 1995-96 O O O VG

4. No doubt, for the years 1994-95 and 1995-96, respondent

No.8 had earned „Very Good‟ reports as against outstanding

by the petitioner and respondents No.6 and 7. However,

what was found by the Tribunal was that in these two years,

respondent No.8 was on deputation at a higher post and in

such case, the grading earned by him had to be upgraded to

next higher level. On this premise, it was concluded that

„Very Good‟ grading earned by him had to be treated as

„Outstanding‟. This view is backed by the Full Bench

judgment of Central Administrative Tribunal, Hyderabad in

S.S. Shambhus v. Union of India & Ors., (1992) 19 ATC

571 (Hyd) (FB) which has been given the stamp of

approval by the Supreme Court in the case of Prem

Shankar Gupta v. Union of India, SLPs(C) Nos.5259-

60/1991 with SLP(C) No.14447/1992. In S.S.

Shambhus (supra), the Tribunal had held as under:

"The only reasonable and just suggestion that in our opinion can be made to meet the ends of justice in the circumstances of the case is that for the period during which the applicant shouldered the higher responsibilities for the higher Class-I posts of ASW/SW, their gradation of SA should be treated as one level higher than the grading awarded to them as ASW as per ACRs for that period. That is, if the ACR as ASW reflects "good" it should be taken as "very good", and if "very good", then it should be taken as "outstanding". In this manner they are placed on equal footing for the purpose of assessment of comparative merits."

5. This formula was approved by the Supreme Court in Shiv

Kumar Sharma v. Union of India, (1997) 11 SCC 112 in

the following manner:

"4. This formula worked out by the Full Bench of the Central Administrative Tribunal came up for

scrutiny by this Court in Prem Shankar Gupta v. Union of India and allied matters. This Court while disposing of the group of petitions observed as under:

"We are satisfied that the formula evolved by the Full Bench of the Central Administrative Tribunal is the proper and just one having regard to the facts and circumstances of the case and the practicalities of the situation.""

6. The aforesaid principle is applied by the Tribunal in the

instant case and discussion to that effect can be found in

para 23 which reads as under:

"In the present case also we are required to compare applicant‟s performance as Ex. Director SAI where he was posted on deputation for the years 1994-95 and 1995-96 with that of his colleagues who remained within the cadre. Admittedly as Ex. Director SAI applicant was drawing a higher pay scale than his colleagues. As it cannot be denied that there is a direct co- relation between the pay scales of a post and its grades/status, it would be unreasonable not to extend the formula contained in the Tribunal‟s order in Shambus‟ case (supra) to the present case also, merely because applicant was sent on deputation to SAI as Ex. Director, moreso when the Hon‟ble Supreme Court have themselves applied that formula in Shiv Kumar Sharma‟s case (supra) and again in Prem Shankar Gupta‟s case (supra). In any case respondents‟ apprehension that extending this formula in cases of deputation also would result in a relative junior stealing a march over his seniors, would not be relevant in the present case, because admittedly applicant was the senior most in his batch, and therefore the question of his superseding his juniors within his batch would not arise."

7. We are of the opinion that when the Tribunal has relied upon

the formula approved by the Supreme Court and rightly held

that respondent No.8 had the same service record which had

to be treated as „Outstanding‟ throughout, he could not be

downgraded in the panel prepared by the DPC. We, thus, do

not find any merit in this writ petition which is accordingly

dismissed.

                                              (A.K. SIKRI)
                                                 JUDGE




                                         (SIDDHARTH MRIDUL)
SEPTEMBER 22, 2011                             JUDGE
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