Delhi High Court
Prem Kumar vs Union Of India And Anr. on 3 March, 2014
Author: Rajiv Shakdher
* THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: 10.02.2014
% Judgment delivered on: 03.03.2014
+ WP(C) 1142/2001
PREM KUMAR ....PETITIONER
VERSUS
UNION OF INDIA AND ANR. .....RESPONDENTS
ADVOCATES WHO APPEARED IN THIS CASE:
For the Petitioner : Ms. Ashly Cherian, Advocate
For the Respondents : Mr. Upender Thakur, Mr. Sumeet Bhatia and Mr. Tejveer Singh
Bhatia, Advocates
CORAM :-
HON'BLE MR JUSTICE RAJIV SHAKDHER
RAJIV SHAKDHER, J
1. The petitioner seeks two substantive prayers. (i) First, that
communication dated 02.02.2001, issued by respondent no.2 i.e., Indian
Institute of Technology, Delhi (hereinafter referred to as I.I.T) calling upon
the petitioner to appear for test and interview for the post of UDC (SG), in
the pay scale of Rs.1400-2600, be quashed. This prayer is sought on the
ground that the petitioner was already holding a pari materia post of
Assistant (Accounts), which was, carrying a higher pay scale of Rs.1640-
2900.
(ii) Second, that a direction to be issued to respondent no.2 to consider the
case of the petitioner for selection to the post of Accountant /
Superintendent, in the pay scale of Rs.2000-3200 (pre-revised) or, to such
other similar post or designation, in consonance with, the provisions of
Recruitment and Career Development Scheme for Non-Academic (Group B,
C & D) Staff (in short R & CD Scheme) or any other circular, notification or
office orders, etc. issued by I.I.T. in that behalf.
1.1 In support of the aforementioned substantive prayers, a tertiary prayers
have been sought in the form of issuance of directions to the respondents to
produce relevant rules, and policy under which the petitioner was appointed
and promoted in the I.I.T. A further prayer in the form of explanation is also
sought as to why the petitioner was issued the communication dated
02.02.2001, to take the written test and interview for the post of UDC (SG)
in pay scale of Rs. 1400-2600 (pre-revised) when petitioner was already
placed in a higher pay scale of Rs. 1640-2900 (pre-revised) with effect from
08.05.1992.
1.2 I may only indicate that this court, in its order dated 06.02.2002, has
recorded that, the petitioner, was unwilling to take the test and interview
(presumably for the post of UDC (SG), and therefore, prayer for interim
relief, was rejected.
2. In order to appreciate the challenge laid by the petitioner, it would be
necessary to detail out the broad contours of the case :-
2.1 The petitioner, was recruited to the post of Junior Cashier, on
31.08.1981, after clearing an interview held, in that behalf. The petitioner,
was offered a pay scale of: Rs.330-560. The petitioner, was directed to
report for duty, immediately and, in any case, not later than 15.09.1981. The
appointment though, was made on temporary basis. Upon completion of
probation, the petitioner was confirmed vide Memorandum dated
08.12.1982. The period between which, the petitioner, was on probation,
was made substantive w.e.f. 25.09.1982.
2.2 Evidently, in 1983, I.I.T came out with an advertisement for the post of
UDC. The petitioner, was selected and, thereupon, appointed in the said
post, in the pay scale of Rs.330-560; on 01.06.1983. To be noted, this pay
scale was the same as that of Junior Cashier; a post which the petitioner
already held. Notably, in the panel drawn up by I.I.T for the post of UDC,
the petitioner was placed at serial no.3, while one Mr Jagtar Singh was
placed at serial no.7.
2.3 The petitioner, realizing that the pay scales in the post of Junior Cashier
and the UDC were the same, vide communication dated 01.05.1984 he
wrote to the Registrar, I.I.T., that the period during which he had worked as
Junior Cashier, be treated as period spent by him in service, in the post of
UDC, for the purposes of future promotion. Specifically, the request made
was that, period commencing from 25.09.1981 should be included as
service, in the post of UDC. The petitioner, indicated that, till consideration
of his request; albeit on "sympathetic basis", he should not be confirmed in
the post of UDC. Pertinently, respondent no.2 did not pay heed to this
communication.
2.4 On 23.08.1984, the petitioner, having successfully completed his
probation in the post of UDC was made substantive w.e.f. 01.06.1984.
Notably, the period of probation in the post of UDC, commenced from
01.06.1983.
2.5 The petitioner, thereafter, on 12.09.1991, applied for the post of
Assistant (Accounts). The petitioner, having cleared the interview, was
offered the post of Assistant (Accounts) in the pay scale of Rs.1400 -2600.
Once again, the petitioner was put on probation for a period of one year
subject to it being extended. His pay was fixed at Rs.1480/- p.m.
2.6 After completion of probation, the petitioner was made substantive in
the post of Assistant (Accounts) w.e.f. 08.05.1993 vide Memorandum dated
28.06.1993. The period of probation, as indicated in the said memorandum,
commenced from 11.05.1992.
2.7 It may be relevant to note here; a fact which is not disputed before me
by the respondents, that there was a promotion policy in place since 1978,
that is, before the petitioner joined respondent no.2's service as Junior
Cashier, in August, 1981; which ceased to exist with effect from 13.09.1986.
2.8 Consequently, on 06.12.1994, the R & CD Scheme, was notified. The
notification indicated that it would be notionally implemented w.e.f.
01.04.1993, and financial benefits, under it, would be extended from
01.04.1994. With the notification of R & CD Scheme, all earlier guidelines
for internal / external selection, stood superseded.
2.9 The R & CD Scheme was thus, brought into force to provide
appropriate and adequate opportunity for vertical mobility, consistent with
job requirement.
3. The R & CD Scheme indicated that the entire non-academic staff of the
I.I.Ts, which included I.I.T of Delhi, had been categorized under four
Groups : A, B, C and D. The R & CD Scheme, however, applied only to the
staff, which fell in Group B, C & D.
3.1 The broad classification of staff under the R & CD Scheme had been
made on the basis of job responsibilities as well as qualification-compatible
cadres. Therefore, while the group was a genus (which comprised of
number of cadres, being species of the genus), the group, was defined as
Conglomeration of different posts identified, as such, on the basis of scales-
of-pay. Each cadre under the R & CD Scheme was thus provided a ladder
of three levels; except for Group D, which pertained to unskilled persons,
where four levels were provided.
3.2 It appears that the Board of Governors of I.I.T., on 26.10.1999,
resolved to notionally implement the provisions of the R & CD Scheme with
effect from 13.09.1986; though financial benefits, as indicated earlier, were
to flow from 01.04.1994. At this stage, a tentative list of employees in
various non-ministerial posts, who were eligible for selection, with the
tentative dates indicated therein, was appended by way of annexure to the
said Resolution. In the Annexure, the details with regard to the petitioner
and one, Mr. Jagtar Singh, were shown as follows:-
"TENTATIVE LIST
(UDC)
S.No. Emp. Name Deptt. Tentative eligible date for
Code S/Sh./Ms. selection to the post of
UDC (SG)
(Rs.1400-2600)
(pre-revised)
xx xx xx xx xx
18 25372 Jagtar Singh L/Cell 01.06.1991 Apptd as Asstt.
W.e.f. 06.07.92.
xx xx xx xx xx
21 25369 Prem Kumar Accts. 01.06.1991 Apptd as Asstt.
(Accts.) w.e.f.
08.05.92
3.3 Having regard to the above, the petitioner made a representation to the
concerned officer of I.I.T., on 04.11.1999. In sum, the petitioner, requested
that he be given the promotion to the post of Assistant / Assistant (Cash)
with effect from 25.09.1989 and, not from, 01.06.1991. This plea was made
on the premise that his services as Junior Cashier, would be counted.
Having entered the service in September, 1981 (i.e., the month and the year
when the probation began), the qualifying, eligibility period service of eight
years, would get completed in September, 1989; therefore, the demand for
promotion from 25.09.1989. A case was also sought to be made out that if,
the first part were to be accepted, then, the petitioner's next promotion
would be due from 25.09.1997, in the post of Superintendent / Assistant
(Cash SG).
3.4 Having not received a response to his aforementioned communication,
the petitioner sent reminders on 30.03.2000 and 27.12.2000.
3.5 Yet another communication was sent on 11.01.2001, wherein the same
request was reiterated. Promotion to the post of Assistant (Accounts) /
Assistant (Cash) was sought w.e.f. 25.09.1989.
3.6 The petitioner, emphasized the point that the R & CD Scheme had
been made effective notionally from 13.09.1986, to give promotions, when
no promotional scheme was in place. He emphasized the point that, it is for
this reason that the petitioner had taken recourse to the open selection route,
brought into play by the I.I.T. He, thus, requested that the result of the test /
interview for the post of Assistant (Accounts), in which, he got selected (and
consequently appointed on 08.05.1992), should be considered for treating
him as an appointee to the post of Assistant / Assistant (Cash) / Assistant
(Accountant) w.e.f. 25.09.1989 and, not from, 01.06.1991 and, that too, in
the post of UDC (SG).
3.7 Evidently, vide communication dated 17.01.2001, I.I.T. rejected the
petitioner's representation dated 11.01.2001 and, advised him, to appear for
the test and interview fixed for 18th and 22nd January, 2001, respectively. In
this communication, reference was also made to an earlier reply, evidently,
issued by I.I.T., on 16.01.2001.
3.8 The petitioner, however, refers to office order dated 22.12.2000 to
contend that selection of eligible employees under the R & CD Scheme was
notionally ante-dated w.e.f. 13.09.1986, though financial benefits were
given from 01.04.1994. This ante-dating of selection, according to the
petitioner, was carried out in respect of those employees who had been
selected through open selection to the higher post in the same cadre, to
which, they were eligible under the said scheme from an earlier date. The
details, with regard to Mr. Jagtar Singh, and one other person, whose name
has been shown as, Mr Sunil Kumar Verma, are as follows:-
"INDIAN INSTITUTE OF TECHNOLOGY : DELHI
HAUZ KHAS: NEW DELHI - 110 016
TD/Estt-II/2000/6729 Dated : 22-12-2000
OFFICE ORDER
Sub: Ante-dating the selection of the eligible employees under R&CD
Scheme notionally w.e.f. 13.09.1986 and financial benefits from 01.04.1994
in respect of those employees who got selected through open selection to the
higher post in the same cadre to which they are eligible under the Scheme
from an earlier date.
S.No. Name & E/Code Deptt. Selected Post & Ante- Pay
dated
Scale w.e.f.
1. xxx xxx xxx xxx xxx
21. Jagtar Singh Legal UDC (SG) 01.06.1991 xxx
25372 Rs.1400-2600 (PR) xxx
(appointed as Asstt. Rs.5000-8000(R)
W.e.f. 06.07.92 (AN) F.B. w. e. f. 01.04.1994
Assistant
*Rs.1640-2900 (PR)
*Rs.5500-9000(R)
*Pay Scale / Pay
subject to the Appeal
made by MHRD
22. Sunil Kumar Verma, E-1 UDC (SG) 01.07.1991 Rs.1480/- (01/07/91)
25377 Rs.1400-2600 (PR) Rs.1520/- (01/07/92)
(appointed as Asstt. Rs.5000-8000(R) *Rs.1640/- (07.07.92)
W.e.f. 06.07.92 (AN) Rs.1700/- (01/07/93)
Assistant Rs.1760/- (01/07/94)
*Rs.1640-2900 (PR) Rs.1820/- + 60 PP
*Rs.5500-9000(R) (01/07/95)
3.9 Based on the examples of Mr. Jagtar Singh and Mr. Sunil Kumar
Verma, who were appointed as Assistants w.e.f. 06.07.1992 and, whose,
selection was ante-dated from 01.06.1991 and 01.07.1991, respectively, it
was contended that the petitioner's selection to the post of Assistant /
Assistant (Cash) / Assistant (Accountant), should be given effect from
25.09.1989.
3.10 To be noted, in the office order of 22.12.2000, the petitioner's name
was not included. This was also repeated in the tentative list dated
19.01.2001, issued by respondent no.2, in respect of the employees, eligible
for selection upto 30.04.1998.
4. It is around this time, that is, on 02.02.2001, that the petitioner received
the impugned communication calling upon him to appear in the test /
interview to be held on 18th and 22nd January, 2001 respectively, under the R
& CD Scheme for the purpose of ante-dating his selection under the
provisions of the said scheme w.e.f. 13.09.1986.
4.1 The impugned communication clearly indicated that the petitioner had
been appointed to the post of UDC, on 01.06.1983, in the pay scale of
Rs.330-560 and, thereafter, was appointed as Assistant (Accounts) through
an open selection in the pay scale of Rs.1400-2600, w.e.f. 08.05.1992.
Having completed eight years as UDC (since he was eligible for section as
UDC (SG) in the pay scale of Rs.1400-2600 w.e.f. 01.06.1991), he had been
asked to appear in the test / interview for the post of UDC (SG).
4.2 The impugned order also noted that since, the petitioner, had got
appointed as Assistant (Cash) / Assistant (Accounts), his cadre and line of
promotion, had changed. The ladder of selection for the two cadres under
the R & CD Scheme were indicated, which for the purposes of convenience
are extracted hereinbelow :-
Group 'C'
LDC UDC UDC (SG)
Group 'C/B'
UDC (Cash) Asstt. (Cash) Asstt. (Cash)(SG)
4.3 In nutshell, the petitioner was told that if he, was desirous of ante-
dating his selection to the post of UDC (SG), under the R & CD Scheme
w.e.f. 01.06.1991, he would have to take the test.
4.4 The petitioner, being aggrieved, challenged the impugned
communication dated 02.02.2001 by way of instant writ petition. Notice in
the petition was issued on 20.02.2001. As noted hereinabove, interim relief
was denied to the petitioner for the reason he chose not to take the test
though, by virtue of the impugned order, he had been given an opportunity
to that effect. It also appears upon on a reading of this Court's order dated
06.02.2002, that respondent no.2 was perhaps willing to give the petitioner
another opportunity, which of course, the petitioner, declined.
4.5. Upon issuance of notice, pleadings in the matter were completed.
SUBMISSIONS OF COUNSELS
5. Ms. Cherian has argued for the petitioner, while on behalf of
respondent no.2 arguments addressed by Mr. Bhatia.
5.1 In brief, the argument of Ms. Cherian was that the petitioner should
have got benefit of the service put in as Junior Cashier. The learned counsel
submitted that if period was counted, the petitioner would have got his first
promotion w.e.f. 25.09.1989 and, the second promotion, w.e.f. 25.09.1997.
5.2 Ms. Cherian relied upon a memorandum dated 30/31.05.1975 to
contend that the service put in as Junior Cashier could be combined with
that, which was put in by the petitioner, as UDC. Only to be noted, the said
memorandum, refers to Junior Staff Recruitment and Promotion Rules, 1972
(in short the 1972 Rules), the provisions in respect of which, were not placed
before me.
5.3 The other argument of Ms. Cherian was that Mr. Jagtar Singh vide
office order dated 22.12.2000, had his selection ante-dated w.e.f.
01.06.1991; a dispensation which was not extended to the petitioner. It was
contended that Mr. Jagtar Singh was junior to the petitioner in the panel
drawn up for UDC and, therefore, the petitioner's first promotion should be
ante-dated to 25.09.1989.
6. On behalf of respondent no.2, it was contended that the petitioner had
changed his cadre twice over. Firstly, when he applied and was selected as
UDC in 1983 and, thereafter, as Assistant (Accounts), in 1992. It was thus
contended, that the, petitioner having changed his cadre could not have
availed of the period of service put in as Junior Cashier. It was argued that
if, the petitioner, was desirous of having his selection ante-dated w.e.f.
01.06.1991 as UDC (SG), he was required to take the test and interview, as
was indicated in the impugned order dated 02.02.2001.
6.1 In so far as the argument of the petitioner with regard to ante-dating of
selection was concerned, reliance was sought to be placed on the resolution
dated 19.05.2000, which formed the basis of the office order dated
22.12.2000. It was submitted that the Board of Governors, at their meeting
held on 19.05.2000, directed constitution of a committee by the Director of
respondent no.2, to look into the issues, arising from implementation of the
R & CD Scheme, notionally, w.e.f. 13.09.1986.
6.2 In respect of this specific issue, my attention was drawn to the
recommendations of the Committee, the relevant extract of which reads as
follows:-
"..The Committee after taking into account the above facts and
all other relevant factors recommends that no fresh test /
interview be held for such employees who through open
selection got selected to the same higher post in the same cadre
to which they are now eligible under the R&CDS from an
earlier date. In all such cases the marks obtained by them in
the open selection in Test & Interview be extrapolated to the
marking Scheme of the R&CDS and results prepared to see if
they fulfil the criteria of selection under the Scheme, i.e., at
least 50% in test and 60% in aggregate. All those who qualify
should be ante-dated and the remaining be given an
opportunity to take the selection process in terms of paras IV
& V of the R&CD Scheme. It is further recommended that
they should continue to draw the financial benefits w.e.f. the
date of their selection to their post through open selection
without taking into account the notional increments that they
may be entitled to as a result of ante-dating. The financial
benefit of notional increments as a result of ante-dating be
given w.e.f. 01.04.1994 only.."
6.3 It was submitted on behalf of respondent no.2 that since Mr. Jagtar
Singh had fulfilled eligibility criteria in terms of the Board of Governor's
Resolution dated 19.05.2000, he was given notional promotion w.e.f.
01.06.1991, whereas the petitioner, was denied the said notional ante-dating
as he had not scored 50% in the written examination and 60% in the
aggregate, in terms of the decision of the Committee.
6.4 I must say that the petitioner is, perhaps, rightly aggrieved by the fact
that this aspect was not brought to fore in the counter affidavit. It is only
during the course of arguments, when I called for the record, that this aspect
has been brought forth on behalf of the respondents. Having said so, the
record of respondent no.2 cannot be wished away. The failure on the part of
the deponent of the counter affidavit filed on behalf of the I.I.T., cannot
deprive it, of a legal defence, which is based on contemporaneous decision
taken, which is, available in its record.
REASONS
7. Having considered the arguments of both sides and perused the record,
in my view, the petitioner cannot granted any relief in the writ petition, for
the following reasons :-
7.1 As correctly argued on behalf of respondent no.2, the petitioner
changed his cadre twice. Once, when he got selected as UDC and,
thereafter, as Assistant (Accounts). Though the petitioner made a request
for recognizing service, he had put in as Junior Cashier, there was no
response to the same.
7.2 I have not been shown anything by way of Rules which would have
me accept the contention of the petitioner that the service of the petitioner as
Junior Cashier would stand combined with the service put in as UDC.
7.3 As indicated above, the reliance on memorandum dated 30/31.05.1975
cannot help, as that memorandum was issued under the 1972 Rules; the
provisions, of which, were not placed before me for due consideration.
7.4 Notably, the petitioner entered service only in August 1981 when,
even according to him, a promotional policy had kicked-in, which was,
formulated in 1978. A difficulty arose when the 1978 promotional policy,
was brought to an end, on 13th September, 1986. It is because of this precise
reason that the R & CD Scheme, which was notified in 1994, was
ultimately, made notionally applicable, from 13.09.1986.
7.5 The Board of Governors of respondent no.2, having realized that there
was no promotional policy, in place, between September 1986 and
06.12.1994, decided to recognize the marks obtained in the open selection
by employees for the purpose of ante-dating their selection. As per the
Board of Governors' Resolution of 19.05.2000, the criteria fixed for ante-
dating selection was that, the employee should have obtained at least 50%
marks in the written test and 60% in the aggregate. Mr. Jagtar Singh, who
was junior to the petitioner, fulfilled this criteria and, therefore, his selection
was notionally ante-dated with effect from 01.06.1991. The petitioner, who
did not fulfil this criteria, was denied ante-dating of his selection.
7.6. The petitioner's grievance that this fact was not brought out in the
counter affidavit may have caused some heart burn but, having regard to the
fact that the resolution of the Board of Governors dated 19.05.2000, is
available on the record, cannot be wished away. It is for this reason that the
petitioner was given an opportunity to have his say vis-à-vis this aspect, as
well. The petitioner in his written submission does not dispute the fact that
unlike Mr Jagtar Singh, he did not fulfil the eligibility criteria fixed by the
Board of Governors, for ante-dating selection under the R& CD Scheme. If
that be position, petitioner's selection cannot be ante-dated.
8. Therefore, having regard to the aforesaid facts, in my view, there is no
merit in the writ petition, the same is accordingly dismissed. There shall,
however, be no order as to costs.
RAJIV SHAKDHER, J.
MARCH 03, 2014
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