Vandana Varma vs The Union Of India & Ors.
2017 Latest Caselaw 3858 Del

38

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                    LPA No.509/2017

+                                           Date of Decision: 2nd August, 2017

     VANDANA VARMA                                    ..... Appellant
                Through                   Mr.Hitendra K. Nahata, Adv.
                                          with Mr.V.P. Singh, Adv. &
                                          Mr.Anuj R. Yadav, Adv.

                            versus

     THE UNION OF INDIA & ORS                          ..... Respondents

Through Nemo.

CORAM:

HON'BLE MR. JUSTICE VIPIN SANGHI HON'BLE MS. JUSTICE REKHA PALLI

VIPIN SANGHI, J (ORAL)

1. The present Letter Patents Appeal assails the judgment

dated 07.03.2017 passed by the learned Single Judge whereby

the Writ Petition (C) 5480/2017 filed by the Appellant has been

disposed of as infructuous.

2. The Appellant, who is an employee of respondent No.2-

Oil Industry Development Board, had preferred the aforesaid

Writ Petition praying for a direction to the Respondent No.2 to

consider her for promotion on ad-hoc/regular basis for the post

of Stenographer Grade „B‟. The petitioner had also prayed that

no Review Departmental Promotion Committee (in short

„DPC‟) should be held qua Respondent No.3 and she should not

be promoted to the post of Stenographer Grade „B‟.

3. The case set up by the Appellant before the learned

Single Judge, was that she had been appointed in the

Respondent No.2 Organisation on 19.03.1993 as a Stenographer

Grade „D‟ whereafter, based on the successful clearance of test,

she had been promoted to the post of Stenographer Grade „C‟ on

16.12.1997. The Appellant‟s plea was that she had completed

four years service in Grade „C‟, and therefore, as per the

Recruitment Rules, she was eligible for being considered for

promotion to the post of Stenographer Grade „B‟ but

Respondent No.2 was taking no action in this regard despite,

there being availability of a vacancy of Stenographer Grade „B‟

in the Organisation.

4. The Appellant had also contended that Respondent No.3

Smt. Asha, who had been initially appointed in a different cadre

i.e. Stenographer-Typist Hindi on 17.05.1988 was wrongly

being granted promotion to the post of Stenographer Grade „C‟

even though the post of Stenographer-Typist Hindi was not a

feeder post for promotion to the said post of Stenographer

Grade „C‟. The Appellant, therefore, contended before the

learned Single Judge that by wrongly granting promotion to

Respondent No.3 as a Stenographer Grade „C‟ her chances of

promotion to the post of Stenographer Grade „B‟ were likely to

be adversely affected as she apprehended that the officials of

Respondent No.2 would promote Respondent No.3 to the sole

post available of Stenographer Grade „B‟ by overlooking the

Appellant.

5. Per Contra, The Respondents No.1 and 2 in their reply

before the learned Single Judge justified their action of

promoting Respondent No.3 as Stenographer Grade „C‟ w.e.f.

11.12.1997 by pointing out that both the posts of Stenographer

Grade-D(Hindi) and Stenographer Grade-D(English) belonged

to the same cadre and, therefore, both the Appellant and

Respondent No.3 were eligible for promotion to the post of

Stenographer Grade-„C‟. It was further pointed out that since

Respondent No.3 was about 5 years senior to the Appellant, she

was rightly granted promotion as Stenographer Grade „C‟ w.e.f

11.12.1997 pursuant to a Review DPC. The further plea of the

Respondent No.1 & 2 were that a duly constituted DPC held on

03.09.2002 after considering all eligible candidates, including

both the Appellant and Respondent No.3 for promotion from

Stenographer Grade „C‟ to Stenographer Grade „B‟ against the

sole available vacancy, recommended Respondent No.3 for

promotion to the post of Stenographer Grade „B‟ and

accordingly Respondent No.3 stood promoted on adhoc basis

Stenographer „B‟ w.e.f 05.09.2002. In these circumstances it

was prayed that the Writ Petition had become infructuous.

6. During the pendency of the Writ Petition, before the

Court, the Appellant was also promoted as a Stenographer

Grade „B‟ on regular Basis w.e.f. 09.03.2011. This fact was

brought to the knowledge of the Court by way of an Application

being (CM 8172/2016) by the Appellant herself as also by

Respondent No.2 by way of an additional affidavit dated

16.03.2016. The relevant para of the Additional Affidavit filed

by Respondent No.2 read as:

" 3. That the matter was directed to be listed on regular list and to be heard finally as per the order dated 05.10.2004 of this Hon‟ble court. Subsequent to the same, the facts and circumstances set out below have transpired and have much bearing on the matter and must be brought on record before this Hon‟ble Court, as the same effectively renders the prayers of the Petitioner as against the Respondents infructuous:

(a) At the time of the filing the writ petition the Respondent No.3 was promoted to the post of the Stenographer „B‟ on ad hoc basis on 05.09.2002, which the Petitioner has challenged and sought to be struck down.

(b) The promotion of the Respondent No.3 to the post of Stenographer Grade „C‟ was made effective from 16.12.1997 vide the Review DPC held on 02.09.2002.

(c) On 22.12.2006, the Petitioner was promoted to the post of Stenographer Grade „B‟ on ad hoc basis, during the pendency of the Writ Petition.

(d) Both Respondent No.3 and Petitioner were promoted to the post of Stenographer „B‟ on regular basis w.e.f. 09.03.2011.

4. That in view of the above circumstances prayer (i) of the Petitioner seeking to consider her promotion to the post of Stenographer „B‟ is rendered infructuous from 22.12.2006. The prayer (ii) is rendered infructuous by the holding of Review DPC on 02.09.2002 which was essential to consider the eligible candidate i.e, Respondent No.3 who was inadvertently left to be considered during December 1997.

5. That since the Respondent No.3 and the Petitioner have been promoted to the same post i.e. Stenographer

„B‟ with effect from the same date(09.03.2011), the alternative prayer of the Petitioner to strike down the appointment of the Respondent No.3 also ceases to have any relevance or necessity even to the petitioner."

7. When the Writ Petition came up for final hearing before

the learned Single Judge, he after considering the fact that both

Respondent No.3 and the Appellant stood promoted as

Stenographer Grade „B‟ w.e.f 09.03.2011, came to the

conclusion that in view of the promotion granted to her w.e.f.

09.03.2011, the Appellant‟s claim regarding her first prayer for

consideration of her case for promotion to the post of

Stenographer Grade „B‟, stood satisfied. The learned Single

Judge was also of the view that in case the Appellant wanted to

claim promotion from an earlier date, she would have to file a

fresh petition for the same, as the claim for retrospective

promotion would be beyond the scope of the Writ Petition.

8. Similarly, while dealing with the second prayer of the

Appellant, the learned Single Judge observed that though the

Appellant had in her Writ Petition prayed that no Review DPC

should be conducted qua Respondent No.3 for re-fixing her

seniority in the post of Stenographer Grade „C‟ but it had

transpired that a Review DPC had already been held on

02.09.2002 whereby Respondent No.3 had been granted ante-

dated promotion to the post of Stenographer Grade „C‟ w.e.f.

16.12.1997. Based on these facts, the learned Single Judge was

of the view that there being no challenge to the Review DPC

held on 02.09.2002 in respect of Respondent No.3, the Writ

Petition qua the second prayer of the Appellant had also become

infructuous. The learned Single Judge accordingly disposed off

the Writ Petition as being infructuous while granting liberty to

the Appellant to claim her entitlement for the post of

Stenographer Grade „B‟ from a date prior to 09.03.2011.

9. Aggrieved by the disposal of her Writ Petition in the

above manner, the Appellant filed a Review Petition which was

dismissed vide order dated 21.04.2017, whereafter she has

preferred the present Appeal. Before us, the learned counsel for

the Appellant has contended that the learned Single Judge has

erred in disposing of the Writ Petition without adjudicating on

the issues raised by the Appellant. He submits that the learned

Single Judge has failed to consider the fact that the Appellant

had already filed a CM No.8172/2016 to bring on record

additional and corroborative facts on record from which it

would be apparent that the Appellant had already brought to the

notice of the Court, the illegalities being committed by the

Respondents in promoting Respondent No.3 as Stenographer

Grade „C‟ and Grade „B‟. Learned counsel further argued that

the learned Single Judge while disposing of the Writ Petition as

infructuous had overlooked the principle of lis pendence and

had therefore contended that any illegal Review DPC conducted

during the pendency of the Writ Petition ought not to be given

effect to and the Court ought to have examined those aspects.

10. We have considered the submissions of the learned

counsel for the Petitioner and perused the record. It becomes

evident from the record that during the pendency of the Writ

Petition, the Appellant was indeed promoted as Stenographer

Grade „B‟ w.e.f 09.03.2011, which was her first main prayer in

the Writ Petition and therefore as rightly observed by the

learned Single Judge, if she has a grievance regarding the date

from which she claims this promotion, she would be required to

challenge the same by a fresh petition, as the prayer in the Writ

Petition was only for consideration of her case for promotion as

Stenographer Grade „B‟ and there was no prayer for grant of

promotion from any particular date. In our view, the learned

Single Judge has rightly come to the conclusion that the first

prayer of the Appellant had become infructuous.

11. We have also considered the second relief claimed by the

Appellant whereby she had prayed that no review DPC should

be held qua Respondent No.3 and she should not be promoted

as Stenographer Grade „B‟. As noticed above, it is an admitted

fact that during the pendency of the Writ Petition, not only a

Review DPC qua Respondent No.3 had been held but she also

stood promoted as Stenographer Grade „B‟ w.e.f 09.03.2011

and therefore the second prayer of the Appellant had also

become infructuous. It is evident in case the Appellant is

aggrieved by the holding of review DPC qua Respondent No.3

and/or her promotion to the post of Stenographer Grade „B‟, she

will be required to challenge those orders substantively and

cannot contend that the validity of a promotion order passed

much after the filing of the Writ Petition, should be examined in

the same Writ Petition. Therefore in our considered view, the

learned Single Judge was justified in holding the Writ Petition

as infructuous qua the second prayer also. In these

circumstances the disposal of the Appellant‟s Writ Petition as

infructuous with liberty granted to her to file a fresh Petition, if

so advised, is just and proper and warrants no interference.

The Appeal is accordingly dismissed with no order as to

costs.

B

(VIPIN SANGHI) JUDGE

(REKHA PALLI) JUDGE

AUGUST 02, 2017 nn/aa/sr