Delhi High Court
Commissioner, Navodaya ... vs D.C. Verma & Ors. on 27 May, 2015
Author: I. S. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Judgment delivered on: May 27, 2015
% 1. W.P.(C) No. 2267/2005
COMMISSIONER, NAVODAYA VIDYALAYA SAMITI ..... Petitioner
Through: Mr. S. Rajappa, Dr. Puran Chand,
Advocates.
versus
D.C. VERMA & ORS.
.....Respondents
Through: Mr. Anil Srivastava, Advocate for
respondent No. 1 to 4.
AND
2. W.P.(C) No. 16486/2004
SH. S.B SHARMA ..... Petitioner
Through: Mr. Galib Kabir, Advocate.
versus
D.C. VERMA & ORS.
.....Respondents
Through: Mr. S. Rajappa, Dr. Puran Chand,
Advocates for respondent No. 5 (NVS)
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MR. JUSTICE I.S.MEHTA
JUDGMENT
I. S. MEHTA, J.
1. The petitioners i.e. Commissioner, Navodaya Vidyalaya Samiti and
Shri S. B. Sharma preferred two separate Writ Petitions i.e. WP (C) No.
2267/2005 and WP (C) No. 16486/2004 respectively under Articles 226
and 227 of the Constitution of India against the common order dated
19.08.2004 passed by the learned Central Administrative Tribunal,
Principal Bench, New Delhi in O.A. No. 2287/2003.
2. The brief facts stated are that the petitioner i.e. Commissioner,
Navodaya Vidyalaya Samiti, was having three streams of Section Officers
i.e. 1) Section Officer, 2) Section Officer (Finance), and 3) Section Officer
(Computer). The aforementioned three posts had identical pay scales i.e.
the erstwhile Rs. 2000-3500 now revised to Rs. 6500-10500.
3. The petitioner in W.P. (C) No. 16486/2004 i.e. Sh. S.B. Sharma
was recruited as Section Officer (Computer) as a direct recruitee w.e.f.
17.06.1991. The post of Section Officer formed the feeder cadre for the
post of Assistant Director (Administration) and Section Officer (Finance)
formed the feeder cadre for the post of Assistant Director (Finance).
However, the post of Section Officer (Computer) was to be filled by direct
recruitment and there was no feeder cadre or promotional prospects for the
said post of Section Officer (Computer). This created inequality amongst
the three cadre posts i.e. 1) Section Officer, 2) Section Officer (Finance)
and 3) Section Officer (Computer).
4. Consequently, a conscious decision was taken in the year 2002
whereby the post of Section Officer (Computer) was also merged with the
Section Officers on the same analogy as was done in 1995, when the posts
of Section Officer and Section Officer (Finance) were merged into a
single cadre of Section Officers.
5. The petitioner, Sh. S.B. Sharma was appointed to the post of
Section Officer (Computer) as a direct recruitee on 17.06.1991 in the
erstwhile pay-scale of Rs. 2000-3500, now revised to Rs. 6500-10000.
Respondent No. 1 in the present Writ-Petition i.e. Sh. D.C. Verma became
Section Officer on 09/04/1994, respondent No. 2, Sh. B.C. Panda became
a Section Officer on 19.05.1999, respondent No. 3, Sh. Sandeep Dutta
became Section Officer on 07.12.1995, and respondent No. 4, Sh. P.
Chaudhuri became Section Officer on 17.08.1998 in the same pay-scale as
that of the petitioner, Sh. S.B. Sharma, was drawing on 17.06.1991,
apparently showing Sh. S.B. Sharma to be the senior most person.
6. Navodaya Vidyalaya Samiti, re-designated the post of Junior
System Analyst as Section Officer w.e.f. 07.06.1991 (i.e. the date on
which Recruitment Rules, 1991 came into force) vide order dated
22.03.2002 and in consequence to the order passed by the learned
Tribunal in O.A. No. 973/2002, prepared the seniority list on 18.07.2003.
Aggrieved from the said seniority list and re-designation of the post of
Junior System Analyst as Section Officer, the respondents i.e. Sh. D.C.
Verma, Sh. B.C. Panda, Sh. Sandeep Dutta and Sh. P. Chaudhuri preferred
to file an O.A. No. 2287/2003 before the learned Central Administrative
Tribunal, Principal Bench, New Delhi and the learned Tribunal passed an
impugned order by setting aside the order of Navodaya Vidyalaya Samiti
dated 22.03.2002 and quashed the seniority list dated 18.07.2003, hence,
giving rise to the present two separate Writ-Petitions from the common
order.
7. The petitioner i.e. Commissioner, Navodaya Vidyalaya Samiti, has
taken the plea in the Writ Petition No. 2267/2005 that the order of the
learned Central Administrative Tribunal, Principal Bench, New Delhi
erred in coming to conclusion in Para 13 of its judgment that no Order has
been issued relaxing the rigour of the recruitment rules and in the absence
of any relaxation, the plea of Respondents No. 1 to 4 i.e. Sh. D.C. Verma,
Sh. B.C. Panda, Sh. Sandeep Dutta and Sh. P. Chaudhuri, would succeed,
namely, that the merger of the cadre would be permissible, subject to the
officer fulfilling the basic requirements, but if retrospective effect was to
be given, the concerned person must be fulfilling the educational
qualification. Further, the quashing of seniority list ipso-facto is wrong.
Respondents No. 1 to 4, have no right to challenge the action of the
petitioner i.e. Commissioner, Navodaya Vidyalaya Samiti which was
taken at the highest levels after due deliberation and consultation.
8. We have heard the learned counsel of the parties. The learned
counsel of the petitioner, Commissioner Navodaya Vidyalaya Samiti and
petitioner, Sh. S B Sharma has drawn our attention towards the pleas
raised in the petition that the impugned order dated 19.08.2004 is
perverse, arbitrary, illegal and violative of the recruitment rules and
seniority rules which resulted in miscarriage of justice and relied upon the
judgments rendered in the cases titled as S. P. Shivprasad Pipal vs. Union
of India, (1998) 4 SCC 598 and S.B. Mathur vs. Chief Justice of Delhi
High Court, 1989 Supp (1) SCC 34.
9. The learned counsel for the respondents, Mr. Anil Shrivastav has
submitted that the petitioner i.e. Commissioner, Navodaya Vidyalaya
Samiti, exceeded in his jurisdiction in supporting and promoting
arbitrarily Sh. S.B. Sharma by ignoring the rightful cause of the
respondents i.e. Sh. D.C. Verma, Sh. B.C. Panda, Sh. Sandeep Dutta, and
Sh. P. Chaudhuri.
10. The learned counsel for the respondents has further drawn our
attention to the fact that the learned Tribunal in its earlier order dated
11.02.2003 has set-aside the seniority list in O.A. No. 973/2002 and
pointed out that the learned Tribunal was right in setting aside the
seniority list.
11. The claim of the petitioner, Sh. S.B. Sharma, that he has been
appointed by the Navodaya Vidyalaya Samiti, as Section Officer
(Computer) in the erstwhile pay scale of Rs. 2000-3500 w.e.f. 17.06.91 as
a direct appointee is supported by his appointment letter.
In pursuance of the limited direction given in O.A. No. 973/2002,
the petitioner i.e. Commissioner, Navodaya Vidyalaya Samiti, re-
designated the post of Junior System Analyst as Section Officer
(Computer) vide notification dated 22.03.2002 and prepared the seniority
list dated 18.07.2003. The aforesaid appointment letter dated 14.06.1991,
notification dated 22.03.2002, the seniority list dated 18.07.2003 and the
promotion order dated 23.07.2003 are reproduced hereinunder:
NAVODAYA VIDYALAYA SAMITI
Department of Education
Ministry of Human Resource Development
F.No. 2-6/91-Admn. Dated: 14.06.91
MEMORANDUM
Sub: Appointment for the post of Section Officer
(Computer) in the Navodaya Vidyalaya Samiti in the pay
scale of Rs. 2000-3500 - Offer of Appointment.
*****
With reference to this application dated 21.03.91, Shri S.B.
Sharma is hereby offered the post Section Officer (Computer) in
the Navodaya Vidyalaya Samiti on purely temporary basis. The
post carries the pay scale of Rs. 2000-3500 plus other usual
allowances as admissible under the rules.
2. The terms and conditions of service will be governed in
accordance with the prevailing rules and regulations of the Samiti.
3. He will be on probation for a period of two years. His
regularisation in the Samiti will be considered only after
competition of probation period successfully.
4. His present Headquarters will be at New Delhi. However,
he can be posted anywhere in India at any time during his service
in the Samiti.
5. In case Sh. S.B. Sharma is willing to accept the offer of
appointment on the terms and conditions mentioned above, he is
requested to report for duty immediately but not later than
29.06.91 failing which it will be presumed that he is not will to
accept the offer and this offer will automatically stand cancelled.
s/d
Deputy Director (P&A)
NAVODAYA VIDYALAYA SAMITI
PF.No. S - 36/88-NVS (Admn.) Dated: 22.03.2002
NOTIFICATION
In supersession of this office order of even number dated
05.10.1995, the post of Junior System Analyst is hereby re-
designated as Section Officer w.e.f. 07.06.1991.
The seniority of the incumbent will be fixed in the cadre of
Section Officers as per rules. However, it will not affect the Section
Officers who have already been promoted as Assistant Directors.
It issues with the approval of competent authority.
S/d
(V.K. Sharma)
DY. DIRECTOR (P&E)
_____________
NAVODAYA VIDYALAYA SAMITI
Indira Gandhi Stadium, I.P. Estate, New Delhi - 110002
Final Seniority List in the cadre of Section Officers borne
on the strength of Navodaya Vidyalaya Samiti as on 31.12.2002
S.No. Name S/Shri Date of Category Qualifications Date of Remarks
Birth Regular
Appointme
nt to the
grade
1 A.K. SINGHAL 07.11.1949 Gen. B.A. 01.05.91 Promoted
as A.D.
2. K.K. SHARMA 04.02.1955 Gen B.Com, P.G. 01.05. 91 Promoted
Diploma in as A.D.
Business Admn.
3. P.K. SHARMA 12.10.1956 Gen. B.Com, B.Ed. 23.11.93 Promoted
as A.D.
4 V. SUDEVAN 10.08.1944 Gen. B.Com, B.Ed. 23.11. 93 Retired
w.e.f.
31.07.2000
5. KIRPALSINGH 15.07.40 Gen. Matric 23.11. 93 Retired
w.e.f.
31.07.2000
6 S.B. SHARMA 25.07.1965 Gen. B.Com 17.06.91
7. D.C. VERMA 01.07.55 OBC M.A. 09.05. 94
8. SAMUEL GEORGE 20.09.51 Gen. M.A. (Eco) 28.07.95
9. S.K. MUND 10.04.61 Gen. M.Com 26.12.95
10. SANDEEP DATTA 20.08.67 Gen. B.Com, P.G. 07.12.95
Diploma in
Business Admn.
11. MADAN PAL 01.12.57 SC B.Com, LL.B. 25.01.96
12. MATHEW THOMAS 11.07.61 Gen. M.com 03.08.98 L.D.E. -
13. N.K. PAHWA 20.06.61 Gen. B.Com 04.08.98 L.D.E. -
14. N.R. NAIDU 09.08.59 Gen. M.Com 03.08.98 L.D.E. -
15. P. CHAUDHURI 04.01.57 Gen. M.Com, B.Ed. 17.08.98 L.D.E. -
16. RAMJEET 30.04.61 SC B.Com 05.08.98
17. S.C. BHATT 10.01.62 Gen. M.Com 04.08.98
18. S.K. NAYAK 15.01.53 Gen. B.Com, Part-I 31.07.98
(AN)
19. N. VIJAYAN 05.05.55 Gen. M.Com 14.09.98
20. RAKESH KHANNA 30.06.63 Gen. B.Com 04.08.98
21. S.S. MISHRA 02.02.42 Gen. B.A., LL.B. 04.08.98 Retd w.e.f.
31.1.2002
22. B.C. PANDA 10.04.59 Gen. B.Com (Hons) 19.05.99 L.D.E. -
23. R.S. MEENA 10.09.64 ST M.Com 04.04.2000 L.D.E. -
24. K. SUBHASH 15.05.62 Gen. M.A., B.Ed., 09.01.2002 L.D.E. -
LLB 2001
25. SUBE SINGH 07.04.58 Gen. B.A. 06.02.2002
SHARMA
26. KAILASH 26.01.63 Gen. M.Com, ICWA 08.02.2002
MAHESHWARI
27. SHASHI SHARMA 30.03.51 Gen. M.A. (Eco.) 07.02.2002
28. D. SATHYAN 26.05.61 Gen. B.A., B.L. 17.10.2002 L.D.E. -
29. RAM SINGH 08.08.50 SC B.A. 25.09.2002 L.D.E. -
________________
NAVODAYA VIDYALAYA SAMITI
F.No. 2 - 29/2001-NVS (Admn.) 23rd July, 2003
OFFICE ORDER
On the recommendation of the Departmental
Promotion Committee, Sh. S.B. Sharma, Section Officer,
NVS, HQrs. is promoted to the post of Assistant Director
(Fin.) in the pay scale of Rs. 10000-325-15200/- and posted
to NVS HQrs., New Delhi. The promotion will take effect
from the date from which he takes over the charge of the
post of Assistant Director.
Sh. S.B. Sharma will be on probation for a period
of two years from the date of joining to the post of Assistant
Director which can be extended at the discretion of the
Competent Authority.
S/d
(M.S. KHANNA)
DEPUTY DIRECTOR (ADMN.)
12. The whole question hinges around whether the action of the
petitioner, Commissioner, Navodaya Vidyalaya Samiti, of merging the
post of Junior System Analyst with the post of Section Officer
retrospectively i.e. w.e.f. 07.06.1991 is permissible under the law?
The answer is no.
13. The Navodaya Vidyalaya Samiti, which was registered in the year
1986, framed its first recruitment rules, in the year 1991. Before revising
the rules i.e. prior to 1995, there were three stream of Section Officers i.e.
Section Officer, Section Officer (Finance), and Section Officer
(Computer). The petitioner, Sh. S.B. Sharma was appointed as Section
Officer (Computer) as a direct appointee on fulfilling the required
qualification for the said post in the year 1991 vide the appointment letter
No.(F.No. 2-6/91-Admn.) dated 14.06.1991 (Supra) as per the
Recruitment Rules, 1991, which came into force w.e.f 07.06.1991.
14. The three stream of Section Officers i.e. Section Officer, Section
Officer (Finance) and Section Officer (Computer) remained functional till
the new Recruitment Rules 1995, came into existence. In the year 1995,
two cadres i.e. Section Officer and Section Officer (Finance) were merged
into a single cadre of Section Officers and the post of Section Officer
(Computer) was re-designated as Junior System Analyst, having no feeder
cadre as the Junior System Analysts was a direct recruitment post. The
post of Section Officer and Section Officer (Finance) were promotional
posts which were to be filled 50% by promotion from amongst all
Assistant and Audit Assistant, with 6 years of regular service and 50% by
limited departmental exam.
15. As per the Recruitment Rules, 1991, Section Officer was the feeder
cadre for the post of Assistant Director (Admn.) and Section Officer
(Finance) was the feeder cadre for the post of Assistant Director (Finance)
whereas Section Officer (Computer) did not have any promotional
avenues.
The petitioner, Navodaya Vidyalaya Samiti, registered itself in the
year 1986 and notified its Recruitment Rules, 1991, vide notification
dated 07.06.1991 and thereafter, started facing administrative difficulties
due to lack of experience and found itself in a waterloo, in its operation,
as the rules framed did not facilitate smooth functioning of the institution.
It is here, that the Navodaya Vidyalaya Samiti, found that the institution
is facing rigidity at the cost of administrative efficiency rather than
smooth functioning of the three Section Officers i.e. Section Officer,
Section Officer (Finance) and Section Officer (Computer).
Consequently, the Navodaya Vidyalaya Samiti, took the first step to
merge the cadre of Section Officer and Section Officer (Finance) into a
single cadre of Section Officers in the year 1995, and accordingly, the
rules were amended in the year 1995.
16. However, the post of Section Officer (Computer) was re-
designated as Junior System Analyst which still did not have any
promotional avenues.
17. It is not out of place to mention here that in the year 1995, when
the Recruitment Rules of 1991 were amended, at that point of time, the
petitioner, Sh. S.B. Sharma was having only four years experience on the
post of Section Officer (Computer). As per the Recruitment Rules, 1991,
the experience of six years of regular service as Section Officer was
required for the promotion to the post of Assistant Director and the
petitioner, Sh. S.B. Sharma was ineligible for promotion to the post of
Assistant Director. Consequently, it went unnoticed by the Navodaya
Vidyalaya Samiti that there were no promotional avenues for the post of
Section Officer (Computer).
It is, because of this reason that the anomaly between the Section
Officer and Section Officer (Computer) remained unsolved in the
Departmental structure when the post of Section Officer (Computer) was
re-designated as Junior System Analyst in the year 1995, neither did he
raise any objection regarding the merger of the two posts i.e. Section
Officer and Section Officer (Finance) into a single cadre of Section
Officers nor for re-designating the post of Section Officer (Computer) to
Junior System Analyst.
18. Consequently, the petitioner, Sh. S B Sharma remained on the
same post on which he was initially appointed in the year 1991 as a direct
appointee. After the amendment in the year 1995, there remained two
cadres:
i. Section Officer which was a promotional post and the feeder cadre for
promotion to the post of Assistant Director (Admn./Fin.)
; and
ii. Junior System Analyst which was an isolated post having no feeder
cadre and no promotional avenue.
19. The respondents i.e. Respondent No. 1, Sh. D.C. Verma became
Section Officer on 09.05.1994, Respondent No. 2, Sh. B.C. Panda became
Section Officer on 19.05.1999, Respondent No. 3, Sh. Sandeep Dutta
became Section Officer on 07.12.1995 and Respondent No. 4, Sh. P.
Chaudhuri became Section Officer on 17.08.1998.
20. The Navodaya Vidyalaya Samiti, after looking into the
representations made by the petitioner, Sh. S.B. Sharma, realized that
institutional structure required further restructuring to remove the
prevailing anomaly and therefore, merged the post of Junior System
Analyst with Section Officers to promote Junior System Analyst to the
post of Assistant Director for the first time ignoring the promotional right
which already existed/accrued in favour of the respondents i.e. Sh. D.C.
Verma, Sh. B.C. Panda, Sh. Sanjeev Dutta and Sh. P. Chaudhuri.
Consequently, the post of Junior System Analyst was merged into a single
cadre of Section Officers vide order dated 17.05.2002 which is reproduced
as under:
NAVODAYA VIDYALAYA SAMITI
NEW DELHI
The proposal to merge the cadre of Junior System Analyst
(JSA) with that of Section Officers w.e.f. 7.6.1991 and to consider
it a feeder cadre for promotion as Asstt. Director (Admn/Fin.) after
completion of 8 years of service has been approved by the Hon‟ble
HRD Minister/Chairman, NVS vide order passed at np/96 of F.No.
S-36/88-NVS (Admn.). It has a bearing on the provisions of
existing Recruitment Rules notified vide No. F. 2-29/94-NVS
(Admn.) dated 22nd June‟95. A photocopy of the relevant note sheet
is placed below for your kind perusal (Flag „A‟).
Article-34 of Memorandum of Association of NVS provides as
under:-
"Any urgent business which it may be necessary for the Committee
to perform may be carried out by circulation of the draft resolution
among all its members, and any resolution so circulated and
approved by the majority of the members by affixing their signature
thereon shall be as effectual and binding as if such a resolution had
been passed at a meeting of the Committee: provided that at lease
(sic) five members of the Committee had recorded their views on the
resolution."
As per the rules any proposal approved by the Chairman,
NVS is to be got rectified by the Executive Committee. Since the
meeting of the Executive Committee may take to convene, it is,
therefore, proposed that as per the Article -34 of the Memorandum
of Association of NVS, the following resolution is placed before the
members of the Executive Committee by circulation:-
"It is resolved and approved that the post of Junior
System Analyst is merged with the cadre of Section Officers w.e.f.
7.6.1991, notification date of first recruitment rules of the Samiti,
and the post of Junior System Analyst is now be a feeder cadre
for the post of Asstt. Director (Admn./Fin), after completion of 8
years of service." (Emphasis Supplied)
Submitted for approval by circulation, please.
s/d
(S.P. Gaur)
Commissioner, NVS
21. The merging of the post of Junior System Analyst with Section
Officers into a single cadre of Section Officers with retrospective effect
can only be permitted where it does not discriminate or violate a
constitutional right or a vested right. Reliance may be placed on the
judgment rendered by the Hon'ble Supreme Court in the case titled as K.
Narayanan vs. State of Karnataka, 1994 Supp (1) SCC 44, where the
Apex Court made the following observation:
"7. Rules operate prospectively. Retrospectively is an exception.
Even when the statute permits framing of rules with retrospective
effect, the exercise of power must not operate discriminately or in
violation of any constitutional right so as to affect vested right."
22. It is an admitted case of the petitioners i.e. Navodaya Vidyalaya
Samiti and Sh. S.B. Sharma that respondents i.e. Respondent No. 1, Sh.
D.C. Verma became Section Officer on 09.05.1994, Respondent No. 2,
Sh. B.C. Panda became Section Officer on 19.05.1999, Respondent No. 3,
Sh. Sandeep Dutta became Section Officer on 07.12.1995 and Respondent
No. 4, Sh. P. Chaudhuri became Section Officer on 17.08.1998. All these
aforesaid respondents had a vested promotional right to the post of
Assistant Director which had existed/accrued in their favour.
23. The plea of cadre-restructuring put forth by the petitioner,
Commissioner, Navodaya Vidyalaya Samiti, would have been
understandable, only if the same had been done prospectively. In the
instant case, the Recruitment Rules were amended with retrospective
effect i.e. w.e.f. 07.06.1991 on which date the Recruitment Rules, 1991
came into force. Petitioner, S.B. Sharma was appointed under the
Recruitment Rules, 1991. In the year 1991, the post of Section Officer
(Computer) was a direct recruitment post and S.B. Sharma knowing fully
well that the post of Section Officer (Computer) is an isolated post having
no promotion prospects consented to join the same under the said rules.
When the petitioner, Commissioner, Navodaya Vidyalaya Samiti amended
the recruitment rules of 1991 in the year 1995, Sh. S.B. Sharma, did not
make any representation against the said amendment and did not even file
any application against the Rules amended in the year 1995.
24. The petitioner, Commissioner Navodaya Vidyalaya Samiti,
subsequently, went ahead with further amendment under the garb of
restructuring and gave benefit to the petitioner, Sh. S.B. Sharma by re-
designating the post of Junior System Analyst as Section Officer with
retrospective effect is not permissible under the rules as the act of the
petitioner, Commissioner Navodaya Vidyalaya Samiti is violative of the
right of promotion accrued in favour of the respondents i.e. Sh. D.C.
Verma, Sh. B.C. Panda, Sh. Sanjeev Dutta and Sh. P. Chaudhuri.
25. Consequently, there will not be a common seniority between the
petitioner and the respondents as they are having different cadres in the
Navodaya Vidyalaya Samiti.
26. As discussed above, we uphold the findings given by the learned
Central Administrative Tribunal in O.A. No. 2287/2003 dated 19.08.2004.
Consequently, both the Writ Petitions i.e. WP (C) No. 2267/2005 and WP
(C) No. 16486/2004 are dismissed.
No order as to cost. One copy of this judgment be placed on the W.P. (C)
File No. 16486/2004.
I.S.MEHTA,
(JUDGE)
KAILASH GAMBHIR,
(JUDGE)
MAY 27, 2015
aj
