Delhi High Court
Madhulika Sharma vs Govt. Of Nct Of Delhi & Anr. on 27 April, 2017
$~12.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 27.04.2017
% W.P.(C.) No. 90/2015
MADHULIKA SHARMA ..... Petitioner
Through: Mr. Romy Chacko & Mr. Girijesh
Pandey, Advocates.
versus
GOVT. OF NCT OF DELHI & ANR. ..... Respondents
Through: Mr. Gautam Narayan, ASC &
Mr.R.A. Iyer, Advocate for
respondent No.1/ GNCTD.
Mr. C. Mohan Rao, Mr. Lokesh
Kumar & Mr. Devender Kumar,
Advocates for respondent No.3.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MS. JUSTICE DEEPA SHARMA
VIPIN SANGHI, J. (ORAL)
1. The petitioner has preferred the present writ petition to assail the
order dated 22.08.2014 passed by the Central Administrative Tribunal
(CAT/ Tribunal) in O.A. No.2631/2012. The Tribunal, by the impugned
order, dismissed the petitioner's Original Application. The petitioner
applicant had preferred the said Original Application to seek a declaration
that her promotion to the post of Deputy Director in the FSL - which was
made on 24.05.2012 , having been made in respect of panel year 2008-09,
should be made retrospective from 01.04.2008. She sought other
consequential reliefs premised on the aforesaid primary relief. The Tribunal
has held that the petitioner actually having been promoted on 24.05.2012,
was not entitled to ante-dated promotion, since the facts of the case did not
justify ante-dated promotion.
2. The claim for retrospective promotion is premised on the submission
that ante-dated promotion can be granted in appropriate circumstances. In
support of this submission, learned counsel has, firstly, relied upon K.
Madhavan and Another Vs. Union of India and Others, (1987) 4 SCC 566.
In paragraph 15 of this decision, the Supreme Court has observed as follows:
"15. There can be no doubt that if the meeting of the DPC
scheduled to be held is arbitrarily or mala fide cancelled
without any reasonable justification therefor to the prejudice
of an employee and he is not considered for promotion to a
higher post, the government in a suitable case can do justice
to such an employee by granting him promotion or appointing
him to the higher post for which the DPC was to be held, with
retrospective effect so that he is not subjected to a lower
position in the seniority list. But, if the cancellation or
postponement of the meeting of the DPC is not arbitrary and
is supported by good reasons, the employee concerned can
have no grievance and the government will not be justified in
appointing the employee to the higher post with retrospective
effect. An employee may become eligible for a certain post,
but surely he cannot claim appointment to such post as a
matter of right." (emphasis supplied)
3. Learned counsel for the petitioner has, secondly, placed reliance on
the decision of a Division Bench of this Court in UOI & Anr. Vs. K.L.
Taneja & Anr., W.P.(C.) No. 8102/2012 decided on 12.04.2013, and in
particular paragraph 21 of the said decision. This Court in K.L. Taneja
(supra) has observed as follows:
"21. The cornucopia of case law above noted brings out the
position :-
(i) Service Jurisprudence does not recognize retrospective
promotion i.e. a promotion from a back date.
(ii) If there exists a rule authorizing the Executive to accord
promotion from a retrospective date, a decision to grant
promotion from a retrospective date would be valid because of
a power existing to do so.
(iii) Since mala fides taints any exercise of power or an act
done, requiring the person wronged to be placed in the
position the person would find himself but for the mala fide
and tainted exercise of power or the act, promotion from a
retrospective date can be granted if delay in promotion is
found attributable to a mala fide act i.e. deliberately delaying
holding DPC, depriving eligible candidates the right to be
promoted causing prejudice.
(iv) If due to administrative reasons DPC cannot be held in a
year and there is no taint of malice, no retrospective
promotion can be made." (emphasis supplied)
4. Learned counsel for the petitioner has also placed reliance on Union
of India and Another Vs. Hemraj Singh Chauhan and Others, (2010) 4
SCC 290, and in particular paragraph 42 of this decision, wherein the
Supreme Court has observed:
"42. Concurring with the aforesaid interpretative exercise, we
hold that the statutory duty which is cast on the State
Government and the Central Government to undertake the
cadre review exercise every five years is ordinarily mandatory
subject to exceptions which may be justified in the facts of a
given case. Surely lethargy, inaction, an absence of a sense of
responsibility cannot fall within the category of just
exceptions." (emphasis supplied)
5. The submission of learned counsel for the petitioner, premised on the
aforesaid decisions, is that in the facts of the present case, the respondent
authorities deliberately and carelessly delayed holding of the DPC for
promotions to the post of Deputy Director for several years. Under the
Recruitment Rules, for the post of Deputy Director, 5 years service of the
grade of Assistant Director is essential for consideration for promotion to the
said grade. The petitioner claims that she had become eligible in the year of
2008 for being considered for the post of Deputy Director, she was
empanelled for and through the year 2008-09 and was actually promoted
only on 24.05.2012.
6. At this stage, we may take note of a few relevant background facts.
7. The petitioner joined FSL on deputation basis as SSO (Chemistry) in
November, 1997. The petitioner was absorbed permanently as SSO
(Chemistry) on 29.04.2002. The petitioner was promoted to the post of
Assistant Director, Chemistry in the FSL with notional seniority from July,
2004. It appears that one Dr. Rajender Kumar and few others, including
respondent No.3 Smt. Deepa Verma, who were also the colleagues of the
petitioners approached the Tribunal by filing O.A. No.1611/2005. In the
said Original Application they sought the relief that the period spent by
them while on deputation with the FSL, prior to their absorption in the FSL,
should be considered as regular service for the purpose of promotion to the
post of Assistant Director. The said Original Application was dismissed by
the Tribunal on 28.07.2005.
8. Dr. Rajender Kumar & Others, including respondent No.3 then
preferred W.P.(C.) No. 14097-140100/2005 in this Court assailing the order
passed by the Tribunal in O.A. No.1611/2015. This Court allowed the said
writ petition on 11.10.2006.
9. Thus, by virtue of the decision in W.P. (C.) No. 14097-140100/2005,
respondent No.3 and the other petitioners in the said writ petition became
entitled for counting their service on deputation for the purpose of fixing
their seniority in the cadre of Assistant Director.
10. Consequently, the seniority of respondent No.3 in the cadre of SSO
had to be counted from 01.08.1996. So far as the petitioner is concerned,
she joined the FSL, Delhi on deputation in the year 1997 in the cadre of
SSO. She was absorbed permanently as SSO at FSL, Delhi on 29.04.2002.
11. The Government did not accept the judgment of this Court in
W.P.(C.) No. 14097-140100/2005 and preferred an appeal to the Supreme
Court vide Civil Appeal No.1753/2007.
12. While the said appeal was pending, Dr. Rajender Kumar & Others,
including respondent No.3 initiated contempt proceedings on account of
non-compliance of the judgment in W.P.(C.) No. 14097-140100/2005. On
account of initiation of the contempt proceedings, the Government moved an
application before the Supreme Court to seek stay of the judgment of this
Court in W.P.(C.) No. 14097-140100/2005. On 19.10.2009, the Supreme
Court dismissed the said application for stay filed by the Government. At
the same time, the Supreme Court observed that "any appointment made
would be subject to the outcome of this appeal". The contempt proceedings
initiated before this Court in W.P.(C.) No. 14097-140100/2005 were also
stayed by the Supreme Court on 26.03.2007.
13. It appears that, in the meantime, a seniority list was prepared by the
Government, which was assailed by Dr. Rajender Kumar & Others vide
O.A. No.2822/2009 on the ground that it was contrary to the decision of this
Court in W.P.(C.) No. 14097-140100/2005. The hearing in the said Original
Application was adjourned sine die on 27.07.2010 on account of pendency
of the appeal before the Supreme Court.
14. The Civil Appeal No.1753/2007 filed by the Government was
dismissed by the Supreme Court on 13.10.2011. Consequently, the seniority
of Dr. Rajender Kumar & other petitioners in W.P.(C.) No. 14097-
140100/2005, including respondent No.3, had to be determined from the
date of their appointment on deputation in FSL, Delhi.
15. The petitioner preferred O.A. No.881/2011 before the Tribunal for a
direction that the Departmental Promotion Committee (DPC) should be held
by the Government for making promotions to the post of Deputy Director.
The grievance of the petitioner was that the DPC was not being held by the
Government despite there being no stay in that respect from any Court. The
said Original Application was disposed of by the Tribunal on 19.07.2011
while directing the respondent Government to convene the DPC for holding
promotions to the post of Deputy Director by drawing panels for the years
2008-09, 2009-10, 2010-11 & 2011-12 and to consider the petitioner's case
for promotion in respect of the years for which she was eligible.
16. The DPC was held on 03.05.2012 and the petitioner was found
eligible for promotion to the post of Deputy Director in respect of panel year
2008-09. As noticed above, she was actually promoted on 24.05.2012.
17. In this background, the submission of learned counsel for the
petitioner is that since there was no stay of the process for holding
promotions, and the Supreme Court had, in fact, held that any appointment
made would be subject to outcome of the appeal, the respondent
Government had no reason or justification to not hold the DPC for about
four years. The submission is that this inaction of the respondent
Government was deliberate with a view to deny promotion to the petitioner
and it was also on account of the casual and careless approach of the
Government. Learned counsel submits that in view of the aforesaid
decisions, such conduct on the part of the Government cannot be
countenanced and the petitioner cannot be made to suffer.
18. The further submission of learned counsel for the petitioner is that the
DPC was deliberately held in May 2012, and not in March 2012, since the
date of superannuation of the petitioner is 31.07.2017. The submission,
therefore, is that as early as in 2012, it was contrived by the respondent
Government to delay holding of the DPC keeping in view the fact that five
years later, the petitioner would superannuate.
19. On the other hand, the submission of Mr. Rao, learned counsel for the
respondent No.3 is that there is no merit in the petitioner's pleas. Mr. Rao
submits that, in fact, it is respondent No.3 who has suffered on account of
the DPC not being held. Respondent No. 3 ranked higher in seniority to the
petitioner after the judgment of this Court in W.P. (C). 14097-140100/2005
which was not stayed by the Supreme Court. Thus, holding of the DPC was
more detrimental to the Respondent No. 3 and others who ranked higher in
seniority to the petitioner than the petitioner. The seniority list prepared by
the department was also under challenge in O.A. No. 2882/2009. He submits
that the DPC was not held on account of the fact that the issue of seniority
remained unfinalised as the decision of this Court in W.P.(C.) No. 14097-
140100/2005 was carried in appeal to the Supreme Court and the said appeal
was disposed of only on 13.10.2011.
20. Learned counsel for the respondent No.1 submits that there is no
question of the holding of the DPC being deliberately withheld, or being
delayed on account of a casual or cavalier approach.
21. Having heard learned counsel, we are of the view that there is no
merit in this petition. No doubt, in certain circumstances, grant of
retrospective promotion has been recognized by the Courts as held in K.
Madhavan (supra) and K.L. Taneja (supra). However, that is an exception
and not the rule. In K. Madhavan (supra), the Supreme Court observed that
if the scheduled DPC is cancelled or postponed without any justification,
then such arbitrary action would not deprive the employee of back dated
seniority. At the same time, if the cancellation or postponement of the
meeting of the DPC is not arbitrary and is supported by good reasons, the
employee concerned can have no grievance and the Government will not be
justified in appointing the employee on the higher post with retrospective
effect. The employee may become eligible for the promotional post but,
surely, he cannot claim appointment to such post as a matter of right.
Presently, the petitioner has not relied on any statutory rule to claim
seniority from the retrospective date i.e. the beginning of the panel year
against which a candidate may be promoted. No statutory rule has been
placed before the Court which mandated the convening of the DPC in a time
bound manner.
22. We may observe that in the facts of the present case, the petitioner has
not alleged any personal mala fide against any particular officer or superior.
In K.L. Taneja (supra), this Court has held that promotion from a
retrospective date can be granted, if delay in promotion is found attributable
to a mala fide act, i.e. deliberately delaying the holding of DPC, thereby
depriving the candidates the right to be promoted. At the same time, the
Division Bench held that if due to administrative reasons, the DPC cannot be
held in a year and there is no taint of malice, no retrospective promotion can
be made.
23. In the present case, as noticed hereinabove, the issue with regard to
seniority in the cadre of Assistant Director was fluid and not settled, since
the decision in W.P.(C.) No. 14097-140100/2005 had been carried in appeal
to the Supreme Court in Civil Appeal No.1753/2007. That issue attained
finality only when the said appeal was dismissed by the Supreme Court on
13.10.2011. Even though there was no stay of the promotion process, at the
same time, the effect of the pendency of the Civil Appeal before the
Supreme Court was that even if promotions had been made, the same would
have been subject to outcome of the said appeal. In these circumstances, if
the respondent Government decided to await decision of the Supreme Court,
in our view, it cannot be said that the said decision of the Government was
mala fide or arbitrary. It cannot be said that the Government acted in a
casual manner since the Government was not sure as to how to determine
inter se seniority of all the eligible candidates in the cadre of Assistant
Director. The seniority list prepared by the Government was also pending
challenge in O.A. No. 2882/2009. Merely because the petitioner may have
been promoted against the vacancy in the panel year 2008-09, it does not
entitle her to claim retrospective promotion from 01.04.2008.
24. So far as the submission that the holding of the DPC was deliberately
delayed to May, 2012 and it was not held in March, 2012, only because the
petitioner's date of superannuation is 31.07.2017 is concerned, the same has
no basis. The petitioner has not produced any material on record, and not
made any specific averments that some particular officer(s) within the
organization had contrived and planned five years in advance of the
petitioner's superannuation date, to ensure that the petitioner's career
progression is adversely affected.
25. In these circumstances, we find no merit in the present petition and
dismiss the same leaving the parties to bear their respective costs.
VIPIN SANGHI, J.
DEEPA SHARMA, J
APRIL 27, 2017
B.S. Rohella
