Delhi High Court
Union Of India & Anr. vs Vinod Kumar Jain & Ors. on 16 January, 2017
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 194/2017
Date of decision: 16th January, 2017
UNION OF INDIA & ANR. ..... Petitioners
Through: Mr. Sanjiv Kumar Saxena, Mr. R.
Mishra & Mr. Mukesh Kumar
Tiwari, Advocates
versus
VINOD KUMAR JAIN & ORS. ..... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE CHANDER SHEKHAR
SANJIV KHANNA, J. (ORAL)
The Union of India in this writ petition filed on 20.10.2016 impugns
the order dated 3.7.2014 passed by the Principal Bench of the Central
Administrative Tribunal in OA No.2892/2012 titled Sujata Arora & Ors. v.
Union of India & Anr. and OA No. 2894/2012 titled Vinod Kumar Jain &
Ors. v. Union of India & Anr.
2. There is substantial delay in filing the present writ petition. It appears
that the petitioners were/are somewhat confused as to what is the exact
nature of the relief granted to the respondents, vide the impugned order
dated 3.7.2014.
3. On the aspect that the respondents are covered under the Flexible
Complementing Scheme ('FCS'), there is no dispute, for the petitioners
accept that the respondents were granted promotion on 28.4.2008 as
Scientist 'F' from Scientist 'D' under the said Scheme.
4. The respondents had filed the aforesaid OA, seeking promotion as
Scientist 'F' with retrospective effect. The Tribunal, in the impugned order,
disposed of the OA, after referring to their earlier decision in OA
No.1926/2013, decided on 29.05.2014 titled A. Duraisamy Vs. UOI & Anr.,
the operative portion of which reads as under:
"36. Therefore, since now the respondents themselves have taken
a policy decision in regard to antedating of in situ promotions,
which O.M. dated 24.05.2013 has not been noticed by the
Coordinate Benches in their judgments in the OAs mentioned
above, those orders are sub silentio, in so far as the rule position
prevailing as on the date, even though both these judgments had
been pronounced after the OM dated 24.05.2013 had been issued,
without taking notice of that. Therefore, these Coordinate Benches
judgments, which are sub silentio as to the correct prevailing rule
position as on date of pronouncement of the orders are not
binding upon us.
37. We, therefore, direct that the case of the present applicant
Dr. A.Duraisamy should be considered by the respondents in
terms of the latest OM dated 24.05.2013, and appropriate orders
may be passed, making it clear that if he is found to be eligible for
grant of ante-dated promotion under FCS, from the appropriate
date in respect of Scientist G, the benefit of 3rd MACP to the
grade of Scientist "G" already granted to him, shall be
withdrawn or adjusted against any dues which may accrue to him,
after such in situ FCS promotions having been antedated".
(Emphasis supplied)
5. The grievance of the petitioner is that the case of the respondents was
considered by the Departmental Review Committee/Selection Committee on
the date of their eligibility, but they were found unfit and, therefore, not
promoted. Accordingly, the respondents are not entitled to retrospective or
antedated promotion. The petitioners submits that these facts were
adumbrated and adverted to in paragraph 8 of the counter affidavit before
the Tribunal, but were not noticed in the impugned order dated 3 rd July,
2014, which on the said aspect is sub-silentio.
6. It is not the case of the petitioners that the respondents have filed a
contempt petition, claiming that the petitioners have not rightly implemented
the decision. In case, any contempt petition is filed, it will be open to the
petitioners to justify and explain their stand and it will be equally open to the
respondents to contest the same in accordance with law. In case the
petitioners feel that their stand in paragraph 8 of the counter affidavit was
not considered and, they should file an application for review, they are at
liberty to do so. We clarify that if any such application for review is filed,
the same will be examined as per the parameters of review. Of course, the
petitioners will have to justify and explain the delay and it is equally open to
the respondents to contest the review application.
7. At this stage, we are not inclined to issue notice only on the basis of
assumptions and interfere with the impugned order. The writ petition is
accordingly disposed of without commenting on the merits and leaving the
issue open to be raised again, if required and necessary.
SANJIV KHANNA, J.
CHANDER SHEKHAR, J.
JANUARY 16, 2017
Tp/NA/VKR
