Abhinav Singh & Ors. vs Jyoti, Inspector & Ors.
2018 Latest Caselaw 7629 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                    Date of Decision: 26th December, 2018


+      W.P.(C) 14039/2018 & CM nos. 54817/2018, 54820/2018,
       54869/2018

       ABHINAV SINGH & ORS.                               .... Petitioners
                    Through:            Mr. Sandeep Sethi, Senior Advocate
                                        with Mr. Shashwat Sharma, Adv.
                            versus
    JYOTI, INSPECTOR & ORS.                   ..... Respondents
                   Through: Mr. Harpeet Singh, Adv. for R-1 to 8.
                            Mr. Ripu Daman Bhardwaj, CGSC
                            and Mr. T.P. Singh, Sr. Central
                            Government Counsel for UOI.
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI

JYOTI SINGH, J. (ORAL)

1. The present writ petition is filed under Article 226/227 of the

Constitution of India seeking quashing and setting aside the order dated

19.12.2018 passed by the learned Central Administrative Tribunal, Principal

Bench, New Delhi, whereby the learned Tribunal has stayed the declaration

of result of the regular DPC for 2019 in OA No. 4640/2018.

2. The facts relevant and necessary for adjudication of the present

petition are as follows:-

(i) The petitioners had joined on different dates in 2011-2012 and

are working on the post of Inspector with Central Board of

Indirect Taxes, Delhi Zone.

(ii) The eligibility condition in the Recruitment Rules of 1986 for

the post of Superintendent, which is the next promotional post,

in Central Excise, is 8 years of regular service in the grade.

(iii) Vide notification dated 13.12.2018 Recruitment Rules to the

post Superintendent were amended and a Note was incorporated

which is as under:-

" Note: Where juniors who have completed their qualifying or eligibility service are being considered for promotion, their seniors shall also be considered provided they are not short of the requisite qualifying or eligibility service by more than half of such qualifying or eligibility service or two years, whichever is less, and have successfully completed their probation period for promotion to the next higher grade along with their juniors who have already completed such qualifying or eligibility service."

(iv) In the department of Central Excise Inspectors are transferred to

different Commissionerates. The method of determination of

seniority of an inter-commissionerate transfer as per CBEC

guidelines of 27.10.2011 is that a person seeking voluntary

transfer to another Commissionerate will be junior to regularly

appointed officers in that commissionerate prior to his/her

transfer. However, such transferred officers will retain the

eligibility of the parent commissionerate for their promotion to

the next higher grade.

(v) On 17.12.2018, 8 Applicants (private respondents herein), who

joined the Delhi Commissionerate on voluntary transfer, filed

OA No. 4640/2018 before the Central Administrator Tribunal.

The relief prayed before the learned Tribunal was:

"Relief:

"i) To declare the action of respondents in delaying the promotion of applicants to the post of Superintendent, Central Excise and at the same time promoting those Inspectors, Central Excise who have yet to acquire eligibility for promotion to the aforesaid post of Superintendent, Central Excise, as illegal, arbitrary and unjustified.

ii) To direct the respondents to consider the applicants for promotion to the post of Superintendent Central Excise by granting them relaxation upto 02 years in eligibility service prescribed in RPs as per O.M. dated 25.03.1996 and grant them promotion from 01.04.2017 by holding review DPC and with all consequential benefits at par with their juniors.

iii) To quash and set aside the order dated 06.04.2018 and direct the respondents to promote the applicants to the post of Superintendent, Central Excise on the same analogy on which the applicants in OA No.3405/2014, 1923/2016 & 2450/2016 with all consequential benefits.

iv) To allow OA with costs.

v) Any other reliefs as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case to meet the ends of justice."

(vi) The learned Tribunal vide order dated 19.12.2018 directed the

official respondents to reconsider the claim of the 8 applicants

keeping in view the decision in Pankaj Nayan&Ors. vs. UOI

&Ors. in OA No. 3405/2014, as has been upheld by this court in

WP(C) No. 11277/2016, within four weeks from the date of

receipt of a certified of this order. However, it is also directed

the respondents not to declare the result of the DPC, if any,

conducted during the said period.

3. Learned senior counsel for the petitioner has argued that seniority

position of the 8 applicants of OA No. 4640/2018 is much lower as per

seniority list up to 31.03.2015. The list shows that the seniority ranks of the

petitioners lie between 319 to 540, whereas the seniority ranks of the 8

applicants lie between 1301 to 1366. He has further submitted that the

petitioners, who have acquired eligibility to be considered in the regular

DPC to be held in this year itself i.e. 2018 for vacancy year 2019 are now

adversely affected by the impugned order of Tribunal dated 19.12.2018

staying the declaration of the result of the DPC. It is argued that as per

DoPT OM dated 08.05.2017, Department has to conduct DPC every year

and those recommended by the DPC have to join the promoted post by 1 st

January of the year. However, due to the stay granted by learned Tribunal

on declaration of result of DPC, petitioners herein, if selected to the post of

Superintendent, would not be able to join the post by 01.01.2019 and would

thus loose their seniority on All India basis w.r.t. the Superintendents of all

other zones, i.e., Mumbai Zone, Chennai Zone, Calcutta Zone etc.

4. Learned senior counsel for the petitioner fairly stated that in so far as

the private respondents are concerned he has no issues if they are considered

for promotion to the post of Superintendent by granting them relaxation up

to two years in the eligibility service as provided in the OM dated 25.3.1996

and their cases be considered by holding a review DPC for the original DPC

held on 01.04.2017.

5. Learned counsel for the private respondents on the other hand

submitted that they were the original applicants in the O.A. No. 4640/2018.

He submitted that the O.A. had been filed seeking the benefit of the

judgment in the case of identically placed persons, namely, Pankaj Nayan

and Others in OA No.3405/2014. He submits that the learned Tribunal in

the case of Pankaj Nayan and Others v. UOI & Ors. had allowed the O.A.

vide order dated 12.05.2016 and granted benefit of the OM dated 25.03.1996

to the applicants therein. He submitted that the eligibility for consideration

to the post of Superintendent is regular service of eight years as Inspector but

by virtue of OM dated 25.3.1996 relaxation up to two years in the eligibility

service can be granted to a senior if the juniors are being considered. He

further points out that the judgment in the case of Pankaj Nayan was

challenged by the Department in a writ petition before this Court and the

same has been dismissed on 29.10.2018 upholding the judgment of the

learned Tribunal. He thus submits that the limited prayer of the private

respondents is that they are similarly placed as the applicants in Pankaj

Nayan's case and, therefore, granting them the benefit of this judgment, they

should be considered by a review DPC for original DPC held on 01.04.2017.

When the matter was listed before this court on 24.12.2018, we had asked

the counsel for the official respondents to file an affidavit indicating the date

on which the regular DPC for the vacancies of 2019 has been held as also

whether the private respondents would be considered in the review DPC and

if so what is the scheduled date for such a DPC. The affidavit was also to

indicate whether any time lines for concluding the process of these DPCs can

be given.

6. Pursuant to the said order, an affidavit was handed over by the learned

counsel for the official respondents. The affidavit states that the regular

DPC for calendar year 2019 has been held on 19.12.2018. Insofar as the

case of the private respondents are concerned, the department will reconsider

their claim, keeping in view the decision in Pankaj Nayan's case (supra) as

upheld by this Court in W.P.(C) no. 11277/2016 by judgment dated

29.10.2018. It is stated that a review DPC for the year 2017-18 will be held

for the private respondents by 17.01.2019, if they are otherwise found

eligible as per Rules.

7. We have heard the learned counsels for the respective parties.

8. At the outset, we had asked the learned counsels for all the parties if

they were agreeable to the disposal of the writ petition at this stage itself and

all the parties had consented and stated that the writ petition be heard and

disposed of.

9. As enumerated above, the limited grievance of the private respondents

was that the official respondents should hold a Review DPC giving them the

benefit of judgment in Pankaj Nayan. This grievance of the private

respondents now stands resolved in as much as the official respondent has

stated on an affidavit that, if eligible, they will be considered by a review

DPC to be held by 17.01.2019. Needless to say, if the private respondents

are considered and recommended for promotion, the consequential benefits

will date back from the respective vacancy year.

10. In so far as the petitioners herein are concerned, their short grievance

is that the DoPT OM dated 25.3.1996 has been incorporated as a part of their

RRs by an amendment in 2018. Thus, if their juniors are being considered,

they have to be given relaxation by two years in their eligibility period as

inspectors for consideration to the post of Superintendent. Thus, the

petitioners are in fact eligible in the vacancy year 2019 and ought to have

been considered in the DPC held in 2018 for the vacancy year 2019. It is

undisputed that the petitioners herein are senior to the private respondents.

The affidavit filed by the official respondents clearly states that the regular

DPC for the calendar year 2019 has already been held on 19.12.2018. There

is no doubt in the mind of this Court that if the petitioners were eligible, after

relaxation in the eligibility period by two years by applying the amended

RRs of 2018, they would have been considered in the said DPC. Learned

senior counsel for the petitioners states that his clients would be satisfied if

the official respondents are directed to declare the result of regular DPC,

held on 19.12.2018. We feel that the grievance of the petitioners can be

redressed by modifying the impugned order of the learned Tribunal to the

extent it has directed that the result of the regular DPC be not declared. We,

accordingly, modify the said direction and direct the official respondents to

declare the result of DPC held on 19.12.2018 as expeditiously as possible. It

is made clear that if the petitioners are recommended for promotion, they

will be given the due consequential benefits as per law and the delay in

declaration of the result of the said DPC will not adversely affect their

overall seniority in the post of Superintendent which is fixed on an All India

basis.

11. It is pertinent to point out here, that Ms. Asha Ji Madan, learned

counsel had mentioned during the arguments that she intended to move an

application for intervention since her clients were senior to both the

petitioners as well as the private respondents and their claims were against

the vacancy year 2016. We do not feel any necessity to allow the

intervention application at this stage. However, there is no doubt that if the

two DPCs mentioned above are taken to their logical end, those who are

senior to respective parties here, would also be given their due and

consequential benefits from the respective vacancy year in accordance with

the Rules and Regulations and DoPT OMs on the subject.

12. With these observations, the writ petition and the applications filed

therewith are disposed of and the official respondents are directed to abide

by the averments made in the affidavit dated 26.12.2018 and take necessary

steps to ensure that there is no further delay in the promotions of the

respective parties.

13. Needless to say that if any party is aggrieved after the results of the

DPCs are declared, they are at liberty to avail of the remedies available in

law.

Dasti.

JYOTI SINGH (VACATION JUDGE)

ANUP JAIRAM BHAMBHANI (VACATION JUDGE) DECEMBER 26, 2018//srb