Om Prakash Sharma vs Union Of India & Anr
2016 Latest Caselaw 6107 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+        W.P.(C) 8165/2016
%                                     Judgment dated 19 th September, 2016
         OM PRAKASH SHARMA                                 ..... Petitioner
                     Through :             Mr.Kumar Rajesh Singh and Mr.P.K.
                                           Ghosh, Advs.

                             versus

         UNION OF INDIA & ANR                               ..... Respondents

                       Through :           Mr.Jitender Kumar, Adv.

CORAM:
   HON'BLE MR. JUSTICE G.S.SISTANI
   HON'BLE MR. JUSTICE I.S. MEHTA

G.S.SISTANI, J (ORAL)

CM APPL. 33757/2016

1. Exemption allowed subject to all just exceptions.

2. Application stands disposed of.

CM APPL. 33759/2016

3. This is an application filed by petitioner seeking condonation of 15 days‟ delay in re-filing the present writ petition.

4. Learned counsel for the respondent enters appearance on an advance copy.

5. Heard and for the reasons stated in the application, the same is allowed.

Delay in re-filing the present writ petition is condoned.

6. Application stands disposed of.

W.P.(C) 8165/2016

7. Challenge in this writ petition is to the order dated 10.3.2014 passed by

Central Administrative Tribunal (hereinafter referred to as „the Tribunal‟) whereby the Tribunal has dismissed OA No.3540/2012 filed by the petitioner herein.

8. In this case, the petitioner joined as a Typist, under Western Railways, on compassionate grounds on 14.10.1992. In the year 1995, the petitioner applied for change of category from Typist to Clerk in terms of the policy circulated by the Railways under PS No.2929. On 4.8.1995, the petitioner appeared in the suitability test for the post of Clerk, wherein he was declared successful. The lien of the petitioner was erroneously fixed in Operating Branch instead of Personnel Branch. In the year 1997, suitability test for the post of Senior Clerk was held wherein ten clerks were called, however, the petitioner was not called despite the fact that he was eligible for it. The petitioner thereafter made a representation to the respondent for conducting a supplementary test. He also filed a complaint in the Vigilance Department. In the meantime, at the request of the petitioner, his lien was changed from Operating Branch to Personnel Branch. On 5.10.2000, the respondents called upon 15 clerks including the petitioner for the Suitability Test for the post of Senior Clerk, which was held on 21.10.2000. In the said test, the petitioner was not found suitable. Thereafter, vide letter dated 26.11.2001, the respondents found 17 officers including the petitioner herein suitable for the post of Senior Clerks and the petitioner was placed at Sl.No.2. Vide letter dated 23.1.2004, the respondents intimated the petitioner that delay in fixation of lien was due to the fault of the Department itself. On account of this error on the part of the respondents, the officers, who had passed the suitability test even after the petitioner, gained seniority over him. The petitioner submitted his representation dated 2.6.2004

with the respondents. Since the representation was not decided by the respondents, the petitioner filed OA No.2693/2004, which was disposed of by the Tribunal on 10.7.2006 with a direction to the respondents to treat the OA as a representation and consider the request of the petitioner for assignment of seniority from 1992 in accordance with the Circular dated 3.11.1962. Thereafter the respondents passed a speaking order on 16.10.2006 assigning his seniority at the bottom. Being aggrieved, the petitioner filed OA 2396/2007, which was dismissed on 12.5.2008. Thereafter the petitioner filed RA 114/2008, which was also dismissed on 25.11.2008. Subsequently, the petitioner filed OA 476/2010 before the Tribunal seeking a direction to the respondents to fix his seniority correctly as per Rules and he should be given all the consequential benefits. The petitioner also prayed that he should be considered for the post of Office Superintendent II from the date his juniors were promoted and also grant him consequential benefits. The said OA was allowed by the Tribunal on 1.12.2010 with a direction to the respondents to consider the erstwhile service of the petitioner for eligibility and his claim for promotion, etc.. Pursuant to the directions passed, respondent no.2 vide order dated 30.12.2010 granted benefit of erstwhile service to the petitioner. The petitioner thereafter submitted his representation dated 4.1.2011 to the respondents praying therein to grant consequential benefit at par with his juniors. On 1.2.2011 respondent no.2 issued Show Cause Notice to the petitioner on the ground that inadvertently the petitioner was shown in the seniority list at Sl.No.28A as per the letter dated 30.12.2010 and provided an opportunity to the petitioner to submit his representation against the above proposal. On 23.2.2011, the Assistant Personal Officer fixed the seniority of the petitioner at S.No.64 in the seniority

list of Senior Clerks. The respondent no.2 has also withdrawn the order dated 30.12.2010, whereby the petitioner was given benefit of his erstwhile service, pursuant to the direction passed by the Tribunal. In the meanwhile the petitioner filed a contempt petition before the Tribunal bearing Contempt Petition no.374/2011 in OA No.476/2010 alleging wilful disobedience of the order dated 1.12.2010. The said contempt petition was disposed of on 17.10.2011 with a direction to respondent no.1 to consider the service rendered by the petitioner as Typist for his eligibility and promotion. On 21.12.2011, in compliance of the order of the Tribunal, the respondents invited the petitioner to appear in the suitability test, but he did not appear. Contending that the respondent no.1 rejected the request of the petitioner for assigning proper seniority and forced the petitioner to appear time and again in the selection process for the post of Superintendent, which are required to be filled up through LDC of 20% quota vacancies on the basis of merit, whereas, as per the petitioner, the post of Office Superintendent is filled up through seniority-cum-suitability basis, the petitioner approached the Tribunal by filing OA 3540/2011, which was dismissed by the Tribunal vide impugned order dated 10.3.2014, which has led to the filing of the present writ petition.

9. Learned counsel for the petitioner submits that the Tribunal has failed to appreciate that the actions of the respondents are arbitrary, illegal and unconstitutional. Counsel further submits that the Tribunal has passed the impugned order on the basis of presumption that the respondents had given seniority to the petitioner as per the Rules whereas, in fact, till date no seniority list has been issued in which the name of the petitioner exists. Counsel also contends that the Tribunal has failed to appreciate that once the post of Office Superintendent is

filled through seniority-cum-suitability from amongst the Senior Clerks then why the Department time and again pressurized the petitioner to appear in the selection process on the same post conducted under 20% posts through LDC on merit. Counsel contends that in case the examination was held every six months, he would have been promoted at an earlier date.

10. We have heard learned counsel for the parties and also examined the impugned order passed by the Tribunal. In our view, the Tribunal has rightly considered the grievance of the petitioner. The concluding para of the impugned order reads as under:

"2. The only issue involved here is that for the promotion to the post of Senior Clerk, while there is eligibility condition, there is also a condition of passing the suitability test. As per the directions of the Tribunal, the authorities considered the applicant's eligibility and offered him an opportunity to appear in the test in 2000. The applicant appeared and failed but in 2001, he qualified the suitability test and was promoted as Senior Clerk with effect from 2001 and assigned seniority. Therefore, no wrong has been done to the applicant. He was given an opportunity but he failed in 2000. He qualified the test in 2001 and was accordingly appointed as Senior Clerk."

(Emphasis supplied)

11. At this stage, counsel for the petitioner has handed over in Court a Railway Boards Letter bearing No.E(NG)I-94/PM1/10 dated 4.7.1997 with regard to the procedure for filling up selection posts. Relevant portion of the letter reads as under:

".... The question of laying down suitable instructions in this regard has been under consideration of the Board for some time

in consultation with the Railway Administration. It has now been decided that in cases where holding the next selection becomes necessary before a gap on one year, the same may be held after a minimum time gap of 6 months from the date of approval of the panel finalised as a result of the first selection. This condition of six months restriction between selections will not, however, apply to General Selections which are conducted by calling options from serving employees fulfilling the prescribed eligibility conditions."

(Emphasis supplied)

12. As per the aforestated letter, in such cases where holding the next selection would become necessary before a gap on one year, the same would be held after a minimum time gap of six months from the date of approval of the panel finalised as a result of the first selection.

13. It may be noticed that this circular was not brought to the notice of the Tribunal. Moreover, it is evident that this Circular is not applicable to the General Candidates.

14. In view of above, we find no infirmity in the impugned order passed by the Tribunal. The writ petition is accordingly dismissed. CM APPL. 33757/2016

15. Application stands dismissed in view of above.

G.S.SISTANI, J

I.S. MEHTA, J SEPTEMBER 19, 2016 msr