Delhi High Court
Amrit Lal vs Uoi & Ors on 18 January, 2017
$~22 & 23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment dated 18thJanuary, 2017
+ W.P.(C) No.1448/2007
AMRIT LAL ..... Petitioner
Through : Mr.Yogesh K. Jagia, Adv.
versus
UOI & ORS ..... Respondents
Through : Ms.Archana Gaur, Adv. for UOI.
Mr.Naresh Kaushik, Adv. for UPSC.
+ W.P.(C) No.1737/2007
ARKENDRA SINGH& ANR ..... Petitioners
Through : Mr.Yogesh K. Jagia, Adv.
versus
UOI & ORS ..... Respondents
Through : Ms.Archana Gaur, Adv. for UOI.
Mr.Naresh Kaushik, Adv. for UPSC.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE VINOD GOEL
G.S.SISTANI, J. (ORAL)
1. Common arguments have been addressed in both the writ petitions and
common issue arises for our consideration. The petitioner in W.P. (C)
1448/2007 had filed OA 445/2005 while the petitioners in W.P. (C)
1737/2007 had filed OA 700/2005 before the Central Administrative
Tribunal (briefly the „Tribunal‟). Both the applications were decided
by a common order dated 18.08.2005 by the Tribunal whereby both the
applications were dismissed.
2. For the sake of convenience, the facts in the case of W.P. (C)
No.1737/2007 are being noticed. The petitioners in W.P. (C)
No.1737/2007 appeared in the examination conducted by the Staff
Selection Commission, Allahabad, for the post of Income Tax Inspector
in the year 1985. Upon being declared successful, they joined the
department on receipt of an appointment letter in the year 1987. The
petitioner in the case of W.P. (C) No.1448/2007 appeared in the
examination conducted by the Staff Selection Commission, Allahabad,
for the post of Income Tax Inspector in December, 1984 and upon
being declared successful joined the department on 05.12.1985. The
next promotional post for the petitioners was that of Assistant
Commissioner of Income Tax („ACIT‟).
3. The grievance of the petitioners before the Tribunal was that for the
vacancies in the post of ACIT which arose between 01.04.1993 and
31.03.1994, a DPC was held on 11.06.1993. Since on the date of the
DPC the petitioners had not qualified the Departmental Examination
for Income Tax Officers Group „B‟ which was held between
26.06.1993 and 14.07.1993, their juniors who have been arrayed as
respondents No.4 to 6 in the W.P. (C) No.1448/2007 and respondents
No.4 to 7 in W.P. (C) No.1737/2007 were granted promotions.
4. The sum and substance of the arguments of Mr.Jagia, learned counsel
for the petitioners is that as per OM No.22011/7/86-Estt. (D) dated
19.07.1989, the eligibility of officers to be considered for promotion by
the DPC was fixed and as per the said OM, the eligibility in the case of
the petitioners would be as on 1st October of the year where the ACRs
are written. Learned counsel for the petitioners submits that as per the
understanding of the respondents, the eligibility is to be considered as
on the date when the last exam is held and a person would be deemed
to be successful on the said date which in the present case is
14.07.1993.
5. Mr.Jagia submits that holding of the DPC on 11.06.1993 for the
vacancy which arose between 01.04.1993 and 31.03.1994 is misplaced
and in the alternate, since there is no date fixed for fixing a DPC, the
petitioners should have been considered in the review DPC post the
declaration of their result on 17.02.1994 which is a date prior to
31.03.1994. Strong reliance is placed on the aforesaid OM and the
answer to a query raised by the petitioners under the Right to
Information Act, the relevant answer to which is extracted below:-
INFORMATION SOUGHT REPLY
B.3. (a) As per information available
on record as per letter bearing
(a) The Date/Dates from which the F. No.115/3673-Ad. IX dated 6th
successful candidates have been July 1973, the date on which the
declared to have passed with last paper of the said exam was
respect to ITO Group B held is to be taken the date of
examinations held in June/July passing the examination.
1993.
(Emphasis Supplied)
6. The OM sought to be relied upon by the petitioners is reproduced
below:
"DPT OFFICE MEMORANDUM No.22011/7/86-Estt. (D) dt.
19-7-1989.
Subject:- Eligibility of officers to be considered for promotion
by DPC - fixing of crucial date of -
The undersigned is directed to say that where the
recruitment rules lay down promotion as one of the methods of
recruitment, some period of service in the feeder grade is
generally prescribed as one of the conditions of eligibility for the
purpose of promotion. There are, however, no instructions about
the crucial date with reference to which eligibility of
Government servants in the feeder cadre should be determined
for the purpose of promotion through Departmental Promotion
Committees. The matter has been under consideration in this
Department and it has now been decided that while holding
DPCs during a year, the crucial dates for determining the
eligibility of Officers for promotion would be prescribed as
under:-
(i) Ist July of the year in cases where ACRs are written
calendar yearwise; and
(ii) Ist October of the year where ACRs are written
financial year-wise.
2. The crucial dates indicated above would be applicable to
only such services and posts for which Statutory Service Rules
detention order not prescribe a crucial date."
(Emphasis Supplied)
7. Per contra, learned counsel for the Union of India submits that there is
no infirmity in the order passed by the Tribunal. She submits that on
the date of DPC, admittedly, the petitioners were not eligible which
factor has been taken into consideration by the Tribunal and since they
were not eligible on the date of DPC, they were rightly not considered
by the DPC and their juniors who had in the meanwhile cleared the
examination were considered and promoted and the petitioners cannot
claim any prejudice, for the reason that on the said date they had not
cleared the examination.
8. We have heard the learned counsel for the parties and considered their
rival submissions. The basic facts in the cases are not in dispute that in
the initial seniority list, the petitioners were seniors to the private
respondents in the respective writ petitions. In the first examination
held, the petitioners were not declared successful. It is also not in
dispute that the vacancies which arose for the first time for the year
financial year 1993-94, i.e. between 01.04.1993 and 31.03.1994, the
Department held a DPC on 11.06.1993 on which date the petitioners
had not cleared the examination, but the date of the examination had
been fixed between 26.06.1993 and 14.07.1993. It is also not in
dispute that the result of the examination was declared on 17.02.1994,
by which date the result of DPC had been declared and the eligible
candidates had been granted promotions.
9. The petitioners have placed strong reliance on the OM dated
19.07.1989, the relevant portion of which has been extracted in the
paragraph 6 aforegoing. Relying upon the OM Mr.Jagia has contended
that the crucial date for determining the eligibility of officers for
promotion was prescribed by the aforesaid OM which in the case of the
petitioners would be 1st October of the year where the ACRs are to be
written financial year-wise. It is also not being disputed before us that
for the vacancy arose for the period 01.04.1993 to 31.03.1994 all
candidates, who were eligible as on 01.10.1993, would be eligible to be
considered in the DPC.
10. The respondents in this case in response to a query raised by the
petitioners under the Right to Information Act, 2005 seeking
information as to what would be the date from which the successful
candidates would have been declared to have passed with respect to
ITO Group B examinations held in June/July, 1993, gave the answer
that as "as per letter bearing F. No. 115/3673-Ad. IX dated 6th July
1973, as the date on which the last paper of the said exam was held is
to be taken the date of passing the examination." The relevant portion
of the reply given under the RTI Act has already been extracted in
paragraph 5 aforegoing. Thus, according to the response of the
respondents, the date on which the candidates would have cleared the
examination is not the date of the result, but the date when the last
paper of the examination was held, which in this case was 14.07.1993.
Similar stand was taken by the respondents when the result was
declared on 17.02.1994, the relevant portion of which reads as under:-
"2. The following candidates are declared to have passed the
above examination w.e.f. 14.07.1993 completely. ..."
11. The effect of such a stand being taken by the respondents would be that
the stand of the respondents itself is not in sync with the reasoning of
the Tribunal, wherein it has been held that since the petitioners were
not eligible on the date of DPC and would be eligible from the date of
the result is declared cannot be accepted. There is no satisfactory
answer as to why the DPC was held either before the result of the exam
was declared or the successful candidates were not considered
subsequently, especially when the vacancies were for the financial year
1993 - 1994.
12. Resultantly, the petitioners must succeed. The impugned order of the
Tribunal is set-aside. The writ petitions are allowed.
13. The petitioners would be considered in the review DPC and in case
they are successful, they would be granted promotion from the said
date. It is agreed that in case the petitioners are found successful, they
would only claim the consequential benefits except the salary for the
reason that they had not worked for the post if they are promoted.
14. The writ petitions are disposed of. No costs
G.S.SISTANI, J.
VINOD GOEL, J.
JANUARY 18, 2017
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