Delhi High Court
Shri L.R. Senapati vs Indian Institute Of Technology on 16 July, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.4453/1998
% 16th July, 2013
SHRI L.R. SENAPATI ......Petitioner
Through: Mr. Vaibhav Kalra, Adv.
VERSUS
INDIAN INSTITUTE OF TECHNOLOGY ...... Respondent
Through: Mr. Tejveer Bhatia and Ms. Suhasini Raina,
Adv.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. By this writ petition, the petitioner (since deceased) sought the relief
of being considered for promotion under an Assured Career Progression (ACP)
Scheme. Prayer was made to quash the orders of the respondent dated 11.12.1997
and 18.3.1997 whereby the representations of the petitioner were rejected.
Petitioner also claimed an alternative relief of being placed in the scale of
Rs.3,000-4,500/- w.e.f 5.1.1995 on account of stagnation by getting the highest
bracket of the existing pay scale.
2. I heard the counsel for the petitioner in detail for almost one and half
hour and at which stage it was pointed out that the petitioner has already expired.
This aspect would be very crucial because if the petitioner was alive, I was inclined
to giving direction to the respondent to consider the petitioner for Assured Career
Promotion in terms of the 1994 scheme of the respondent, but which now cannot
be done as there are requirements in the scheme of appearing in the test and the
interview.
3. The first relevant scheme in this context was the scheme of 1994
because petitioner claims the ACP after completion of eight years from the date of
his appointment as an Assistant Resident Engineer on 5.1.1981. Petitioner was a
Group „B‟ employee in the year 1989 and therefore the following para of
1985/1986 scheme would have been applicable to the petitioner.
"4. PROCESSING
4.1 By the end of March of each calendar year, the Register of
each Institute shall prepare a cadrewise list of all employees who are or
shall become eligible by the 30th June of the year for consideration under
the Personal Promotion scheme. This list shall be submitted to the
Director by the 15th April each year. On receipt of the list, the Director
shall appoint assessment committees for the evaluation of the candidates
in accordance with the procedure prescribed by the respective Boards.
4.2(a) To qualify for promotion, an employee must obtain 50
percent of the maximum marks as per the following evaluation table
(except for those joining the Institute in Grade „D‟ in the scale of pay of
Rs. 196-232).
EVALUATION TABLE
Item Marks
1. Service record for every year of
(a) Satisfactory CR 5 marks
(b) Good CR 6 marks
(c) Very Good CR 8 marks
(d) Outstanding or 10 marks
(For the purpose best sever out
Or eight CR.s shall be taken into
consideration)
(The maximum attainable marks
for (a), (b) (c) and (d) ) 50 marks
2. For any accredited extra qualification 10 marks
acquired
3. Test/Interview of both 40 marks
Total 100 marks
4. A reference to the above para shows that the entitlement to promotion
to a supernumerary post or a benefit of higher pay scale effectively is granted not
automatically on completing eight years of service but additionally by appearing in
a test/interview or both which were to be conducted, and which were of 40 marks.
5. The respondent at the relevant point of time seems to have rejected the
representations of the petitioner essentially on the ground that no scheme was
applicable. I find that this defence is justified because admittedly there was no
scheme which was extant in the year 1989 when the petitioner claims entitlement
to promotion to a supernumerary post. By 1989 admittedly the 1985/1986 scheme
stood withdrawn. Further, and admittedly, the next applicable scheme was the
scheme in the year 1994. This scheme by its very nature will be prospective,
however, petitioner would theoretically be entitled to be considered under this
1994 scheme. However, once again the requirement in this scheme also, in
addition to the consideration of ACRs, was a test and interview and which is clear
from the following relevant portion of the 1994 scheme:-
Procedure for Selection
There will be a test and interview. The distribution of marks will be as
under:-
For Group B, C & D posts:
Test and : 60 marks Rating Marks each CRs
Average
period) Poor
For processing
higher academic
qualification ---------------------
over and above 100 marks
any of ----------------------
qualification and
experience
prescribed for
the post
All staff members who obtained 60 or more marks in aggregate will be selected
provided that they have secured not less than 50% marks in the test.
6. At this stage, I must clarify and put on record that the petitioner‟s
claim before me is for an Assured Career Promotion taking that petitioner is at a
Group „B‟ post. This I am stating because the eligibility and qualifications for
Group B post have been reproduced by me above both of the 1985/1986 scheme,
and the 1994 scheme. The aforesaid facts show that though the petitioner was not
entitled to be considered in 1989 because there was no scheme which was
existing/applicable, however, he was entitled to be considered for the 1994
scheme, and the petitioner admittedly was not considered under the 1994 scheme.
That however cannot take us further because, as already stated, the petitioner has
expired and therefore there cannot be applicability of a scheme which requires the
petitioner to appear in a test and interview. Really therefore, the passage of time
has made the entitlement to relief infructuous.
7. Learned counsel for the petitioner did very vehemently argue on the
basis of the office order dated 29.5.1990 of the respondent and which seemed to
show the grant of benefit of promotion to various persons who were similarly
situated as the petitioner as Assistant Resident Engineer. I was considerably
persuaded by this office order dated 29.5.1990 at one stage, however, I have
reminded myself of the fact that Article 14 is a positive concept and not a negative
concept i.e if some other persons have wrongly got benefits, I unfortunately cannot
grant those illegal benefits granted to someone else to the petitioner, more so
because the requirement of scheme of test and interview cannot be complied with
by the petitioner who has since expired.
8. Another claim of the petitioner was for grant of highest bracket of pay
in his pay scale, and for which, reliance was placed upon the following portion of
the 1985/1986 scheme:-
"(8) Personal Promotions already given to the staff under the
promotion rules previously existing in the IITS should be taken into
account while implementing the new rules. An employee shall be
eligible for two Personal Promotions in the entire period of his service
with the proviso that if after obtaining the second Promotion he
reaches the top of the scale in which he is placed, he will be assessed
for being placed in the next higher scale without any change of
designation. In the case of employees recruited in the lowest category
i.e. in the scale of Rs. 196-232, the number of maximum permissible
Personal Promotions will be three in the entire service period. Thus
people who have already got Personal Promotions under any of the
existing schemes, or on ad hoc basis, will not get additional or fresh
chances under the new rules, except to the extent the permitted chances
have not been exhausted during the period the old rules were in force."
9. I am however unable to accede to the arguments raised in this regard
because para 8 is only a para which forms part of the preamble of the scheme and it
does not form part of the main scheme which starts in the next page being internal
page 3 of the document (running page 32 of the file). It is only from internal page
3 of the scheme that the actual scheme is set out as regards its requirement and
other aspects. Para 8 of the preamble cannot create any legal right in favour of any
employee including the petitioner.
10. In view of the above, ordinarily I would have issued directions for the
petitioner to be considered under the 1994 scheme, however, since the petitioner is
no more, the writ petition has become infructuous for that reason as already stated
above, and is accordingly dismissed, leaving parties to bear their own costs.
JULY 16, 2013 VALMIKI J. MEHTA, J.
ib
