Sangeeta James & Ors vs Uoi & Ors
2017 Latest Caselaw 590 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                            Judgment dated 1st February, 2017

+      W.P. (C) No.1196/2002

       SANGEETA JAMES & ORS                      ..... Petitioners
                   Through  Mr.Aseem Mehrotra, Adv.

                           versus

       UOI & ORS                                              ..... Respondents

Through Mr.M.K.Bhardwaj, Adv. with Ms.Priyanka M. Bhardwaj & Mr.M.D.Jangra, Advs. for R-1 & 2.

Mr.Amitesh Kumar, Adv. for R-4.

CORAM:

HON'BLE MR. JUSTICE G.S.SISTANI HON'BLE MR. JUSTICE VINOD GOEL

G.S.SISTANI, J (ORAL)

1. Rule DB was issued in this matter on 19.02.2002. The writ petition was allowed by the judgment dated 30.09.2011. Subsequently, a Review Petition filed by respondent No.4 (private respondent) was also dismissed. A Civil Appeal filed before the Supreme Court of India was decided by an order of 02.05.2014 by virtue of which the appeal was allowed and the matter was remitted back to this Court for de novo consideration after hearing counsels for all the contesting parties. This is the fifth round of litigation between the parties.

2. The petitioners herein and respondents No.3 to 7 (private respondents) were working in the office of the Director, Central Hindi Directorate. They were appointed as LDCs on the following dates:-

        Sangeeta James      -     Petitioner No.1      -     23.01.1989
       Rita Dev            -     Petitioner No.2      -     15.12.1987
       Pankaj Rana         -     Petitioner No.3      -     14.12.1987
       Asha Rani Kalra     -     Respondent No.3 -          15.06.1972
       Shanti Bala         -     Respondent No.4 -          23.12.1976
       Dharamvir Singh -         Respondent No.5 -          07.12.1976
       Rooma Sharda        -     Respondent No.7 -          14.05.1985
       Sita Chopra (dead) -             -             -     15.12.1992

3. The appointment, recruitment and qualifications in respondent No.2 are governed by the Central Hindi Directorate Rules notified on 04.06.1977. As per the Rules, the posts of Upper Division Clerks are required to be filed up 75% by promotion against Lower Division Clerks working in the CHD/CSTT and having 8 years experience in the grade and the remaining 25% of the posts as Upper Division Clerks are to be filled by promotion on the basis of competitive examination from amongst Lower Division Clerks working in CHD/CSTT and having at least 5 years service in the grade. The first vacancy under 25% quota became available in 1982 which was reserved for Scheduled Tribe. The next vacancy became available in 1989 and efforts were made in 1990 to hold the test but it could not be held on account of administrative reasons. The vacancies falling under 25% quota could not be filled up on regular basis but were filled on adhoc basis. As per the petitioners, the said vacancies fell vacant in the following years:-

               1984 -      Reserved Category
               1987 -      General Category
               1990 -      General Category


                1993 -     General Category
               1994 -     General Category
               1995 -     General Category
               1996 -     Anticipated General Category

4. In the year 1995, the Central Hindi Directorate issued a circular informing that a proposed test scheduled for filling up Upper Division Clerks would be held on 8th and 9th July, 1995. In all, 20 candidates applied for the written test. On account of administrative reasons, the test was postponed to 29th and 30th July, 1995 and then to 6th and 7th January, 1996. Out of 20 candidates, 12 candidates appeared including the petitioners, respondents No.3, 4 & 7 and one Smt.Sita Chopra. The result of this examination was declared on 23.01.1996. The petitioners were declared successful and were placed on serials No.2 to 4 in the merit list.

5. It is a case of the petitioners and respondent No.2 that respondents No.3 & 4 failed to clear the written test, whereas respondent No.5 did not appear in the written test. Resultantly, necessary promotion orders were issued by respondent No.2 in the month of March, 1996. The petitioners and two other selected candidates started discharging their duties as Upper Division Clerks in the office of respondent No.2. In April, 1996 the respondents No.3 to 5 filed an OA challenging the promotions of the petitioners and other selected candidates to the post of Upper Division Clerks (hereinafter referred to as the "First OA"). By an order of 21.01.2000 the OA was allowed. The promotion order was quashed. The Tribunal directed holding of a Review Departmental Promotion Committee for the purpose of conducting fresh Limited Departmental Competitive Examination in the light of the judgment.

The Tribunal held that the clubbing of posts was illegal and void.

6. During the pendency of the matter, Smt.Sita Chopra, one of the selected candidates as Upper Division Clerk has died, while all the private respondents have retired. Aggrieved by the order of the Tribunal dated 21.01.2000, the petitioners filed Writ Petition No.945/2000. While issuing notice on 17.02.2000, the reversion of the petitioners herein was stayed (hereinafter referred to as the "First Writ Petition"). The writ petition was allowed on 06.11.2001 holding that O.M. dated 24.12.1980 was inapplicable to the present case inasmuch as the said O.M. applied to the selection posts whereas the posts in question were non-selection posts. The High Court remanded the matter back to the Tribunal to consider the applicability of the O.M. dated 10.04.1989. It was also directed that the status-quo qua promotions would remain undisturbed till the disposal of the OA.

7. By an order of 07.02.2002, the Tribunal allowed the OA directing the department to hold review DPC for the purpose of conducting Limited Departmental Competitive Examination for each year when the vacancy had arisen separately. The Tribunal continued the interim order for a period of two weeks.

8. It is also an admitted case that during the passage of time, respondent No.3 Smt.Asha Rani Kalra has been promoted as UDC under the 75% quota as far back as in 1998. Smt.Asha Rani has also been given second financial upgradation after completion of 24 years of regular service under the ACP Scheme and has since retired on 31.03.2010. Smt.Shanti Bala Mehta has been given two financial upgradations; one after completion of 12 years service and another after completion of 24 years service and she has superannuated on 31.01.2016. Since the

petitioners received an Office Order dated 08.02.2002 informing them that they would be reverted in the grade of LDC with effect from 22.02.2002, the petitioners filed the present writ petition (hereinafter referred to as the "Second Writ Petition").

9. Learned counsel for the petitioners as also the respondents No.1 & 2 submit that much water has flown after the matter was remanded back by the High Court to the Central Administrative Tribunal, thereafter when the High Court allowed the present writ petition by an order of 30.09.2011 and thereafter when the Supreme Court remitted the matter back to this Court by an order dated 02.05.2014. Counsel for the petitioners submits that as of today, the order passed by the Tribunal is incapable of being complied with, for the reason that the Tribunal has directed that a review DPC be held for conducting a fresh examination for the vacancies which would arise year-wise. It is contended that out of 20 eligible persons, 8 persons did not appear in the examination itself, neither 7 out of 8 people challenged the examination, out of 3 persons who challenged the examination 2 candidates did not clear the examination and the third one did not appear in the examination and all the three applicants in the OA have since retired. Thus, all the three initial petitioners cannot be called upon to appear in the examination as directed by the Tribunal.

10. This submission is not disputed by counsel for respondents No.1 and 2.

However, Mr.Amitesh Kumar who appears for respondent No.4 submits that respondent No.4 should also be considered for promotion from the date when the vacancy arose and despite the fact that she has retired, she should be granted notional promotion and her pension should be fixed according to pay which she would have drawn in case

she was promoted at the relevant time. Mr.Kumar submits that respondent No.4 would also be entitled to backwages at the salary fixed for UDC.

11. We may note that in the first OA which was filed, the petitioners had prayed that the test held on 6th and 7th January, 1996 be declared null and void and the promotion order of 26.03.1996 be quashed. One of the prime grounds raised by the applicants before the Tribunal pertained to clubbing of the posts. The Tribunal allowed the OA by an order of 21.01.2000. The following directions were issued:-

"11. In view of the aforesaid discussion, we have no hesitation to hold that the promotions directed by the departmental promotion committee in pursuance of the limited departmental competitive examination are liable to be quashed and set aside. We order accordingly. The respondents are directed to hold a review departmental promotion committee for the purpose of conducting fresh limited departmental competitive examination in the light of the observations contained in this order. The O.A. is accordingly allowed. There will, however, in the facts and circumstances of the case, be no order as to costs."

12. This order of the Tribunal was challenged by filing the first writ petition being Writ Petition No.945/2000 which was allowed. The matter was remanded back to the Tribunal. The interim order in favour of the petitioners herein continued. After the matter was remanded back, the Tribunal by an order dated 07.02.2002 again allowed the OA and the following directions were passed:-

"13. Respondents are once again directed to hold review DPC for purpose of conducting fresh Limited Departmental Competitive Examination for each year when the vacancies had arisen separately. In the light of the observations contained herein the present O.A. is accordingly allowed. No order as to costs.

14. On an application made on behalf of private Respondents the interim order passed by the High Court on 17.02.2000 will continue for a period of two weeks from today."

13. We may note that the interim order was allowed to continue for two weeks. The effect was that the petitioners herein continued to function as UDCs and were given even further promotions. The petitioners herein who were respondents in the Tribunal filed the second writ petition, i.e. the present writ petition. While issuing notice, the operation of the impugned order was stayed, the effect of which is that the petitioners continued to work on their promoted posts. As we have noticed in the paragraph aforegoing, this writ petition was allowed by an order of 30.09.2011 but the order was set-aside by the Supreme Court of India remitting the matter back for fresh hearing.

14. Learned counsels for the petitioners and respondents No.1 & 2 jointly submit that on account of passage of time, the order of the Tribunal is incapable of being complied with, for the order directs holding of a review DPC for the purpose of conducting a fresh Limited Departmental Competitive Examination. Mr.Mehrotra and Mr.Bhardwaj, counsels for the petitioners and respondents No.1 & 2 submit that the persons who were opposed to the first examination which was held in the year 1996 and who were applicants in the OA have since retired and having retired they would not derive any benefit of the directions passed by the Central Administrative Tribunal as admittedly, as per the Central Hindi Directorate Rules, the promotion from LDC to UDC is based on eligibility, i.e. having worked for five years as a LDC and upon passing the Limited Departmental Competitive Examination. It is, thus, pointed out that despite the original applicants having completed 5 years as Lower Division Clerk,

they cannot at this stage be permitted to appear in an examination post their retirements and thus, the order of the Tribunal has become a still born child incapable of compliance and to the contrary, the three petitioners (respondents before the Tribunal) who had successfully cleared the examination and who have continued to work at the promoted post and have further been promoted, cannot be directed to re-appear in the examination which they had cleared at this stage, but on account of clubbing of posts the Supreme Court did not find favour with the conduct of the examination in 1996.

15. Learned counsel for the petitioners submits that the petitioners are willing to accept promotion only from the dates they became eligible and not from the date the test was conducted and in view thereof, it would not amount to clubbing and on account of clubbing, the petitioners would not have derived any unfair advantage over identically placed candidates at the relevant time.

16. The question which arises for consideration at this stage is as to whether the original applicants have been put to an unfair disadvantage on account of clubbing and on account of passage of time which has made the order of the Tribunal incapable of compliance.

17. Mr.Kumar has pointed out that respondent No.4 whom he represents should also be deemed to be promoted from the date of the examination and merely because she has retired, she should not be deprived of the benefits. In effect, Mr.Kumar prays that she should also be given notional back-date promotion and notional seniority and pay.

18. We are unable to extend this benefit to the private respondents, more particularly, respondent No.4 who is represented in Court today, for the reason that out of 3 private respondents, 2 private respondents did not

clear the examination, one private respondent did not appear in the examination and the manner of conducting of the examination which is sought to be raised today was not raised in the past. What was challenged was the clubbing of posts. The private respondents in this case have, of-course, derived benefits of the ACP Scheme and MACP Scheme, as the respondent No.4 gained benefit of three financial upgradations; two under the ACP Scheme and one under the MACP Scheme dated 19.05.2009 and thus, has not been put to any financial loss. We may note that when the Supreme Court had remanded the matter back to the High Court, the Supreme Court was of the view that the High Court had decided the writ petition on the ground that the applicants had appeared in the selection and, therefore, were estopped from challenging the validity of the panel. Further, the Supreme Court of India was of the view that the High Court should have answered both the questions, i.e. as to whether the department was justified in clubbing of the vacancies.

19. Mr.Bhardwaj, learned counsel for respondents No.1 & 2 submits that despite the fact that one examination has been conducted but the panel for each year would be prepared separately on the basis of eligibility of each candidate and against the relevant vacancy of the year. He further contends that the clubbing of posts is an irregularity of a curable nature. Reliance is placed on the case of Chandra Prakash Tiwari and others v. Shakuntala Shukla and others, (2002) 6 Supreme Court Cases 127, relevant paras of which read as under:-

"40. As regards the issue of selections and clubbing, while in the normal circumstances the same ought to be adhered to but in the event of there being no such assessment or selection, it would not render the subsequent selection void. In Union of India v. Vipinchandra Hiralal Shah [(1996) 6 SCC 721 : 1997

SCC (L&S) 41] this Court upon reliance on the decision in Syed Khalid Rizvi v. Union of India [1993 Supp (3) SCC 575 : 1994 SCC (L&S) 84 : (1994) 26 ATC 192] in paragraph 11 stated as below: (SCC p. 728) "11. It must, therefore, be held that in view of the provisions contained in Regulation 5, unless there is a good reason for not doing so, the Selection Committee is required to meet every year for the purpose of making the selection from amongst the State Civil Service Officers who fulfil the conditions regarding eligibility on the first day of January of the year in which the Committee meets and fall within the zone of consideration as prescribed in clause (2) of Regulation 5. The failure on the part of the Selection Committee to meet during a particular year would not dispense with the requirement of preparing the Select List for that year. If for any reason the Selection Committee is not able to meet during a particular year, the Committee when it meets next, should, while making the selection, prepare a separate list for each year keeping in view the number of vacancies in that year after considering the State Civil Service Officers who were eligible and fell within the zone of consideration for selection in that year."

41. It cannot thus be treated to be void but an irregularity which is of curable nature and can be cured. Dr Dhavan made some comments as regards the situation in Uttar Pradesh in support of not having annual selections and thus clubbing. We are not, however, inclined to dilate thereon neither any credence can be put thereto by reason of our views expressed above. Clubbing in a later year may not be treated as fatal but as noticed earlier, curable, more so having regard to the fact that initiation of a selection process throughout the State would further take a considerable period of time and the Court's attitude presently being pragmatic and justice-oriented should do away with technicalities as technicalities ought not to outweigh the course of justice."

20. At this late stage when the petitioners became eligible for promotion in the years 1992 and 1994 respectively and examination having been conducted in 1996 after they had served as LDCs for 5 years as per the

Rules and having regard to the stand taken by respondents No.1 & 2 as noticed in the paragraph aforegoing and having regard to the fact that the initial applicants in OAs have since retired and have had the benefit of three financial upgradations and the consistent stand of the department that the order of the Tribunal is incapable of being complied with as retirees cannot be put through an examination, we allow the writ petition and quash the order of the Tribunal. The respondents no.1 and 2 will, however, be bound by the statement made in Court today that despite the fact that one examination was conducted, but the panel for each year would be prepared separately on the basis of eligibility of each candidate and against the relevant vacancies of the year in line with the decision of the Supreme Court in the case of Chandra Prakash Tiwari and others(supra). The petitioners shall also remain bound by the statement made by their counsel that they are willing to accept their promotion only from the dates when they became eligible and not from the date the test was conducted.

21. The writ petition is disposed of in above terms. CM. APPL 29233/2015

22. In view of above, the application also stands disposed of.

G.S.SISTANI, J.

VINOD GOEL, J.

FEBRUARY 01, 2017/ka