Uoi & Ors vs S.D. Sharma
2016 Latest Caselaw 7006 Del

$~R-10.
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+        W.P.(C) 4101/2002
%                                         Judgment dated 21 st November, 2016
         UOI & ORS                                        ..... Petitioners
                            Through :     Mr.Bhagwan Swarup Shukla, CGSC,
                                          and Mr.Himansak Bhardwaj, Adv.

                            versus

         S.D. SHARMA                                         ..... Respondent

                            Through :     None.
CORAM:
   HON'BLE MR. JUSTICE G.S.SISTANI
   HON'BLE MR. JUSTICE VINOD GOEL

G.S.SISTANI, J (ORAL)

1. Present writ petition has been filed by the petitioners under Articles 14 and 16 read with Articles 226 and 227 of the Constitution of India seeking a direction to quash the impugned order dated 15.3.2002 passed by Central Administrative Tribunal (hereinafter referred to as „the Tribunal‟) in RA No.230/2011 in OA No.2153/1995 whereby the review application filed by the petitioners herein against the order dated 24.12.1999 was dismissed on the ground of limitation and as the same was outside the scope and ambit of Section 22 (3) (f) of the Administrative Tribunals Act read with Order 47 Rule 1 of the Code of Civil Procedure. It may be noticed that vide order dated 24.12.1999, the Tribunal had allowed the OA filed by the respondent herein and directed the petitioners herein to grant notional promotion with consequential benefits to the respondent from the date his juniors, i.e. respondents no.4 and 5 before the Tribunal, were promoted to the post

of Senior Administrative Officer (in short „SAO‟).

2. While issuing notice in this matter on 12.7.2002, the operation of the impugned order passed by the Tribunal was stayed. Rule DB was issued on 6.1.2005. This matter has been shown on the Regular Board since 08.11.2016. On 16.11.2016, we had partly heard the arguments of counsel for the petitioners. Attempts were also made to contact the counsel for the respondent, who had earlier appeared in the matter. Despite efforts, none is present on behalf of the respondent even today.

3. The necessary facts to be noticed for disposal of the present writ petition are that the respondent had joined the Central Industrial Security Force (in short „CISF‟) as a „Section Officer‟ in the pre- revised Scale of Rs.650-1200/- (Revised scale of Rs.2000-3500/- as on 1.4.1981) on deputation from the Central Reserve Police Force (in short „CRPF‟). The respondent was thereafter absorbed in the CISF w.e.f. 1.9.1983. The post of Section Officer in the CISF was a General Central Service Group „B‟ Gazetted post. At the relevant time, there was no channel of promotion for Section Officers. However there were posts of „Accounts Officer‟ in the Pay Scale of Rs.2375-3500/-. According to the original Recruitment Rules dated 5.5.1979 for the post of Accounts Officer, only persons with accounts background were eligible for promotion to the post. Subsequently, the Recruitment Rules were amended vide notification dated 1.7.1989, to provide a promotional avenue to Section Officers; as per the amended Recruitment Rules, 50% of the posts of Accounts Officer were to be filled up from amongst the Section Officers of CISF cadre having three years of regular service in the grade. Thus, the post of Section Officer was made a feeder post for promotion to the post of Accounts Officer. Admittedly, respondent herein, being the seniormost amongst Section

Officers, was promoted as Accounts Officers and he took charge on 16.1.1990.

4. The next promotional post for Accounts Officer was that of Assistant Director (Accounts) in the scale of Rs.3000-4500. At the relevant time, there was only one post of Assistant Director (Accounts) which could be filled up either by promotion or by deputation. According to the grades from which promotion/deputation could be made, officers under the Central Government holding analogous post or post of Accounts Officer or equivalent post in the unrevised scale of Rs.840-1200 / 650- 1200/- with seven years and eight years service respectively, in the grade were eligible for consideration to the post of Assistant Director (Accounts). Accordingly, the departmental Accounts Officers with seven years regular service in the grade were also eligible for consideration. When the vacancy arose for Assistant Director (Accounts), the petitioner was not found eligible as he did not hold sufficient length of service.

5. In the meanwhile, two posts of Senior Administrative Officer (in short „SAO‟) in the scale of Rs.3000-4500/- were created on 18.7.1994. Two officers, Sh.S.C. Gambhir and Sh.V. Changrani, being respondents no.4 and 5 before the Tribunal, were promoted to the post of SAO on 16.3.1995, however, respondent herein was ignored, which led to the filing of the OA before the Tribunal.

6. Mr.Shukla, learned counsel appearing on behalf of the petitioner, submits that the Tribunal has erred and lost sight of the fact that the respondent had retired on 22.2.1995 before his juniors, i.e. Sh. S.C. Gambhir and Sh. V. Changrani, were promoted. The Tribunal had been misled by the counsel for the applicant/respondent herein, which is evident from a reading of paragraph 9 of the order dated 24.12.1999,

which reads as under:

"9. The learned counsel for the applicant submits that the applicant has taken voluntary retirement in 1996 being disgusted and frustrated. He deserved to be considered for promotion to the post of SAO as he had the necessary qualification but for his being promoted as Accounts Officer. At the time he was promoted as Accounts Officer, he had no option."

(Emphasis Supplied)

7. Relying upon the abovequoted paragraph, counsel further submits that the Tribunal was only persuaded by the submissions made by the counsel for the respondent that the respondent had taken voluntary retirement in the year 1996. Mr. Shukla has drawn our attention to a Letter bearing No. E-28017/1/94-Pers.II/149 dated 30.1.1995 issued by the office of Directorate General, CISF reflecting retirement of the respondent w.e.f. 22.2.1995. He further submits that the respondent was not promoted to the post of Assistant Director (Accounts), the erstwhile promotional post available for Accounts Officers, as he did not qualified for the same.

8. It has further been contended by Mr.Shukla, counsel for the petitioner, that admittedly the respondent herein sought voluntary retirement, which was granted to him w.e.f. 22.2.1995. While allowing voluntary retirement to the respondent, he had given three months‟ prior notice and, thus, there was hardly any time between creation of posts and promotion to be carried out. Counsel further contends that the Tribunal has erred and was completely mislead by the counsel for the respondent into passing the order dated 24.12.1999, which is also evident from the directions passed by the Tribunal as per which the respondent herein was to be given notional promotion with effect from the date his juniors were promoted to the post of SAO with consequential benefits. In support of this contention, counsel has drawn the attention of para 11 of

the order dated 24.12.1999 passed by the Tribunal, which reads as under:

"11. In the facts and circumstances of the case, we direct the respondents to give notional promotion to the applicant with effect from the date his juniors, i.e. respondent nos.4 & 5 were promoted to the post of SAO, with consequential benefits. However, no arrears to be paid. No costs."

(Emphasis Supplied)

9. Mr. Shukla further submits that at the time when respondents no.4 and 5 before the Tribunal were promoted, the respondent herein had already taken voluntary retirement and, thus, the direction passed by the Tribunal could not have been complied with. Mr.Shukla contends that the aforestated fact was also brought to the notice of the Tribunal by filing a review application, however, the same was dismissed by the Tribunal on the ground of limitation and as the grounds urged in the review were outside the scope and ambit of Section 22 (3) (f) of the Administrative Tribunals Act read with Order 47 Rule 1 of the Code of Civil Procedure.

10. We have heard learned counsel for the petitioners and also examined the orders dated 24.12.1999 and 15.3.2002 passed by the Tribunal.

11. The basic facts of this case are not in dispute that initially the petitioner joined CISF on deputation on 1.9.1983. Subsequently, he was absorbed in CISF w.e.f. 1.5.1993. The respondent herein was then working as a Section officer.

12. The point to be noticed is that at the time when the petitioner joined CISF he was well aware that for the post of Section Officer there was no channel of promotion. Despite knowing this condition, the respondent herein agreed to be absorbed in the CISF w.e.f. 1.5.1993. Subsequently, the Recruitment Rules were amended and the avenue of

promotion of a Section Officer to the post of Accounts Officer was opened. The next promotion available to the respondent herein was Assistant Director (Accounts), for which the respondent would have been considered after he had put in sufficient length of service, however, the respondent chose to seek voluntary retirement and as per his request, he was allowed to retire on 22.2.1995.

13. It is not in dispute that the respondent had approached the Tribunal for seeking notional promotion to the post of SAO in the year 1995 i.e. after his retirement and that the respondent had argued before the Tribunal that the persons junior to him had been promoted to the post of SAO but the respondent was denied promotion.

14. The question which arises for consideration before this Court is whether the respondent is entitled to notional promotion to the post of SAO, especially when he had been promoted to the post of Accounts Officer and the next post in line for promotion was Assistant Director (Accounts)?

15. The respondent had accepted promotion to the post of Accounts Officer, knowing fully that the next promotional avenue would be to the post of Assistant Director (Accounts). Unfortunately for the respondent, he was not considered eligible for the promotion as he had not fulfilled the service/experience criteria. Later, the promotional post of SAO was opened for Section Officers and the respondent no longer being a Section Officer was not considered.

16. The other grievance of the respondent pertained to the promotion of his juniors to SAO before him. Firstly, his juniors, namely Sh.S.C. Gambhir and Sh.V. Changrani, were promoted from the post of Section Officer, while the respondent had already accepted promotion to the post of Accounts Officer. He would have next been promoted to the

post of Assistant Director (Accounts), which is a higher post than the SAO, which aspect has been ignored and not considered by the Tribunal. Further the juniors of the respondent, i.e. respondents no. 4 and 5 before the Tribunal, were promoted only on 16.3.1995; i.e. after the respondent had retired. Thus, the respondent herein cannot make a grievance that persons junior to him were promoted as SAOs and he was deprived of the promotion. From a reading of paragraph 9 and 11 of the impugned order dated 24.12.1999, which have been extracted in the aforegoing paragarphs, it is clear that the Tribunal had passed the order having lost sight of the fact that the respondent had retired on 22.2.1995.

17. Resultantly, present writ petition is allowed. The orders dated 24.12.1999 passed by the Tribunal in OA 2153/1995 and the order dated 15.3.2002 passed by the Tribunal in RA 230/2001 are set aside.

18. Writ petition stands disposed of in view of above.

CM APPL. 6951/2002

19. In view of the order passed in the writ petition, this application stands disposed off.

G.S.SISTANI, J

VINOD GOEL, J NOVEMBER 21, 2016 // msr