Neeraj Kumar Ranjan And Ors. vs Uoi And Ors.
2019 Latest Caselaw 1111 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                              Reserved on: 6th February, 2019
                                              Decided on: 19th February, 2019

      WP(C) No. 7421/2015 & CM Appl.Nos. 31685/2016 & 5824/2019
NEERAJ KUMAR RANJAN AND ORS.                   ..... Petitioners
                 Through: Ms. Aakansha Kaul, Advocate.

                          versus

UOI AND ORS.                                                  .....Respondents
                          Through:      Mr. Vijay Joshi, Senior panel counsel
                                        with Mr. Deepak Kumar, Advocate.

CORAM: JUSTICE S. MURALIDHAR
       JUSTICE SANJEEV NARULA

                                   JUDGMENT

Dr. S. Muralidhar, J.:

1. Aggrieved by a gradation list of Assistant Commandants (ACs) of the Central Reserve Police Force („CRPF‟) as on 1st January 2015, eleven Petitioners have filed the present petition for quashing the said gradation list in so far as it relates to them and for a direction to the Respondents to grant them seniority in the rank of AC as per their original seniority in the gradation list of Inspectors as on 1st January, 2007.

2. Each of these Petitioners joined the CRPF as Sub-Inspector (General Duty) (SI) (GD) on 1st March, 2003. They were promoted to the rank of Inspectors (GD) in March, 2007. Their position in the gradation list of Inspectors as on 1st January, 2007 was as under:

  Serial No.       Name                                 Gradation list No.
      1.          Diwkar Singh                         690A
      2.          Sarvesh Tomar                        690C

3. In order to be promoted from Inspector to AC in terms of Para A (v) of Standing Order No. 6/1999 issued by the CRPF on 19th March, 1999, the Inspector must have completed five years of service in the rank and must have qualified in the Senior Inspector Cadre Course („SICC‟).

4. The Petitioners were all detailed for the SICC Sl. No.82 from 1st February, 2010 to 19th April, 2010. Petitioner Nos.1, 4 to 7, 9 and 10 were unable to secure the pass marks in the „Practical and TEWT exercises‟ (paper No. 6) although they passed in all other papers. As far as Petitioners No. 2, 3, 8 and 11 are concerned, they were unable to secure pass marks in „CRPF Manual, Act and Rules‟ (paper No.1) but passed in all other papers.

5. In accordance with the Standing Order No. 6/1999, all these Petitioners

were asked to appear only in one particular paper as per their previous result as mentioned above in the final test of SICC Sl. No. 83 between 13th and 16th July, 2010. As per this further exam, they were all declared pass in the result that was declared on 12th August, 2010.

6. Around June, 2010 when the Petitioners were still appearing in the supplementary subject exam in SICC No. 83, a Departmental Promotion Committee („DPC‟) was convened for promotion of Inspectors to ACs. Inspectors placed at Sl. Nos.690 to 767 were considered and the recommendations of the DPC for promoting them to the rank of AC were accepted. The select list was released on 3rd November, 2010. The Petitioners state that they were shocked to see that their names were missing from the said promotion order although they were above Sl.No.767 i.e. they were senior to the last Inspector promoted as AC by the promotion order of 3rd November, 2010.

7. Representations were then made by the Petitioners in their Unit for considering their cases for promotion. On the representation of Petitioner No.1, a signal dated 18th August, 2010 was sent by his Unit to the office of Respondent No.2 i.e. Director General, CRPF and Respondent No.3 i.e. IGP (Personnel), CRPF asking whether his name should be sent for the supplementary DPC. However, by letter dated 21 st December, 2010 the Respondents informed that Petitioner No.1 was not eligible.

8. The Petitioners made representations with respect to their non-promotion but received no reply thereto. In the meanwhile, the Respondents convened another DPC on 10th February, 2011 for considering Inspectors for

promotion to the rank of AC, who had qualified in the SICC Sl. Nos.83 &

84. Pursuant thereto, the Respondents issued an order dated 13 th January, 2012 granting promotion to 123 Inspectors as ACs. However, this list did not include the names of any of the Petitioners.

9. In response to representation dated 16th January, 2012 the Director General (DG), CRPF by a response dated 24th January, 2012 stated that the Petitioner No.1 had failed in SICC Sl. No.82 and had been declared pass only after he re-appeared in SICC No. 83. Thereafter, an order dated 13th March 2012 was issued promoting 10 Inspectors as ACs but this list also contained the names of only three of the Petitioners i.e. Petitioner Nos.2,3 and 4. Following further representations, an order dated 6th December, 2012 was issued whereby the remaining Petitioners were promoted as ACs.

10. In the meanwhile, many direct recruits had joined as ACs between January, 2011 and December, 2012. As a result, the Petitioners were ranked as much junior to their erstwhile batchmates and persons who had been junior to them as Inspectors. According to the Petitioners, in earlier batches, whenever an Inspector failed in one subject in the SICC of his batch and cleared the same in the next batch, his seniority was always protected. Examples were given of three ACs who fell in this category, namely, Gurmeet Singh SICC 71, Dalbir Singh SICC 76 and Munni Lal Yadav SICC

77.

11. When the seniority of the Petitioners was not restored, a request was made by Petitioner No.1 on 5th August 2013 to Respondent No.3 seeking an interview but the same was rejected by letter dated 27 th March 2014.

Subsequently, a gradation list of ACs was issued by the Respondents on 1st January, 2015 in which the Petitioners were placed much below their batchmates. More than 800 persons according to the Petitioners were granted seniority above the Petitioners. Four of such persons have been impleaded in the present petition in the represented capacity. Aggrieved by the above gradation list, the present petition has been filed seeking the reliefs of aforementioned.

12. Respondents No.1 to 3 have filed counter affidavit on 16th February, 2016 inter-alia contending that since the Petitioners had failed to clear all the subjects in the SICC Sl. No.82, and cleared the failed subject only during the final test of SICC Sl. No.83, they were eligible for promotion as AC only with reference to SICC Sl. No.83. It is stated that they were considered for promotion to AC with reference to SICC Sl. No. 83 "followed by seniority on the gradation list of SM/Inspectors by DPC dated 8 th November, 2011" and accordingly, having been found fit by the DPC, they were promoted to the rank of AC and that their names have been placed in the gradation list of ACs at Sl. No.1742 as of 1st January, 2015. It is stated that the crucial date for determining eligibility of candidates to be considered for promotion would be the first day of the relevant year i.e. 1st January. It is stated that para 22 (7) of Standing OrderNo.1/2015 confirms the provisions that "failure in one or more than one subject in a group will appear for re-test in the failed subject(s) only during final test of next course."

13. It is stated by the Respondents that in such cases, the candidate can claim seniority for promotion "with reference to promotional post in which

he was finally declared pass." It was initially contended that Standing Order No. 6/1999 has been replaced by Standing order No. 1/2015. It is also stated as under:-

"Further, as per General Principle 5(i) of DPC published under chapter - 40 (Seniority) of Swamy's complete Mannual on Establishment and Administration, where promotions are made on the basis of selection by Departmental Promotion Committee, the seniority of such promotes shall be in order in which they are recommended for such promotion by the committee. In the cases where promotions are made on the basis of seniority subject to the rejection of the unfit, the seniority of person(s) considered fit for promotion at the same time shall be the same as the relative seniority in the lower grade from which they are promoted."

14. A rejoinder was filed by the Petitioners on 22nd March, 2016 reiterating that they had re-appeared in SICC Sl. No.83 and were declared pass on 12th August, 2010 itself. They claimed that in terms of Standing order No. 6/1999 they were entitled to the relief sought.

15. It must be noted here that two of the private Respondents i.e. Naveen Kumar Jha, (Respondent No.5) and Shyoram Gurjar (Respondent No.7) have sent separate communications to the Court conveying that they have no objection to the prayers made by the Petitioners.

16. The Respondents on 26th August, 2010 have filed a copy of the Standing Order No.1/2015 dated 12th March, 2015.

17. On 11th July, 2017 this Court passed the following order:

"The Respondents would place on record the applicable seniority rule in the cadre of Assistant Commandant.

2. The case made out by the petitioners is that candidates who have failed in one paper are given another opportunity to clear the said paper with the subsequent batch. On clearing the paper, doctrine of relation back or catch up principle will apply and the candidates who clear the said paper will be promoted along with the earlier batch. In paragraph 11 of the writ petition, the petitioners have given some earlier instances wherein the said principle was applied.

3. The respondents in the counter affidavit in reply to paragraph 11 have not referred to the said instances, but reference is made to Standing Order No. 1/2015. The respondents would highlight the relevant paragraphs of the said Standing Order, which would apply to the present case and also answer contentions raised in paragraph 11 of the petition. Factual assertions, if they are incorrect or require clarification, would be answered and elucidated.

4. Another grievance raised by the petitioners is that they were not promoted as per the seniority position with batch No. 83 as those junior to them in batch No. 83 were promoted earlier. The respondents would also meet the said assertion. The relevant affidavit would be filed within four weeks and will enclose the relevant recruitment rules/seniority rule for the post of Assistant Commandant.

List on 20th September 2017."

18. Pursuant to the above order, an additional counter affidavit was been filed by the Respondent No.2 on 9th October, 2017. It is contended therein that:

"Standing Order No. 06/1999 does not specifically mention as to how the seniority on promotion of such candidates who fail in one or more papers in a promotional course and clears the failed subject(s) in the subsequent batch, are to be reckoned. However, Standing Order No. 1/2015 clearly specified that seniority of

such candidates will be reckoned with reference to the promotional course in which they are finally declared passed. That absence of such clear provision in Standing Order No. 06/1999 does not mean that the candidates are to be granted seniority for promotion with reference to the promotional course in which they had initially appeared and was declared as failed in one or more subject(s)."

19. The additional affidavit then deals with the three instances referred to by the Petitioners and lays out in a tabular format their Ranks and Names, details of SICC appeared in and passed, DPC in which relevant official was empanelled and promoted as AC as well as other relevant details. Inter-alia it is stated that those cases were 9 to 11 years old and needed more detailed examination. It is further affirmed that "if they have been erroneously granted seniority and promotion, their cases would be reviewed". It is submitted that such cases would not give the Petitioners the right to claim seniority with reference to the cause as asserted by them, that if they cleared the one paper they had previously failed in the subsequent SICC Sl. No.83, they would still be granted seniority as per the gradation based on the previous SICC i.e. SICC Sl. No.82.

20. As regards the contention of the Petitioners that their juniors who had undergone SICC Sl. No. 83 were granted seniority above them, it is submitted that the said contention "is vague with nothing concrete to substantiate their claims". It is submitted that the Petitioners have not substantiated their claim with proper instances.

21. It must be pointed out that on 18th December, 2018 the Court passed the following order:

"1. Learned counsel for the Respondents, in the course of arguments, tried to advance certain reasons for not considering the case of the present eleven Petitioners for promotion to the post of Assistant Commandant in meetings of three Department of Promotion Committees ('DPCs') held on after declaration of the Petitioners' results on 3rd November 2010. However, when learned counsel was specifically asked whether the reasons that he was conveying to the Court had been stated in the affidavit filed by Respondent No.2, he answered in the negative.

2. The Court finds that in the additional affidavit dated 2th September 2017 of the Respondents no specific reason has been given for not considering the case of some of the Petitioners in the aforementioned DPCs.

3. The Respondents are directed to file an additional affidavit giving the following information:

"(i) How many DPCs were held after the results were declared on 3rd November 2010 declaring the eleven Petitioners successful in the additional paper in which they earlier failed when the exam for S. No. 82 batch SICC was conducted?

(ii) Which of the Petitioners' cases for promotion were considered in which of the DPCs?

(iii) If certain Petitioners were not considered in some of the DPCs, the reasons therefor. It is made clear that these reasons should find mention in writing in the records.

(iv) Specific reason why the seniority of the Petitioners who were found qualified for promotion was not reckoned from the date of the S. No. 82 batch exam.

4. The additional affidavit be filed within four weeks with an advance copy to the learned counsel for the Petitioners who is permitted to file a reply thereto before the next date

of hearing. The relevant record be enclosed with the additional affidavit.

5. List on 6th February 2019."

22. Pursuant thereto an additional affidavit has been filed on 5th February, 2019 wherein the answers to the queries raised have been provided in para 2 as under:-

"(i) After declaration of results on 3rd Nov 2010, the seven DPCs were held on 08/11/2011, 21/11/2012, 17/01/2014, 05/01/2015, 29/12/2015, 09/08/2016 and 06/12/2017. The petitioners who were failed in SICC Sl. No.82 reappeared in final test of SICC Sl. No.83 (except Sh. Anuj Pathak) held at CTC Coimbatore w.e.f. 13/07/2010 to 16109/2010 in failed subject and declared pass as per CTC CBE signal No. C.IX- SICC/I0-Trg Br dt 13/08/2010. That in the case of Sh. Anuj Pathak, the chance and seniority with reference to SICC Sl. No.83 has been protected on administrative grounds vide Estt. Dte. Signal No.P.VII-35/201 0-SICC-83-Estt. dtd 28 Oct 2010 and detailed in SICC Sl. No. 84 and declared pass.

(ii) That all eleven petitioners were considered for promotion to the rank of Assistant Commandant in the DPC held on 08/11/2011 for the vacancy year 2011-12. However, Sh. Diwakar Singh, Smt. Sarvesh Tomar and Sh. S. K. Jha only were promoted from the select panel. Due to not arising of vacancies the remaining 08 petitioners were not promoted w.r.t. DPC dated 08/11/2011. However, the petitioners were again considered in the next DPC held on 21/11/2012 for the vacancy year 2012-13 and promoted subsequently.

(iii) Due to not arising of vacancies, the remaining 08 petitioners were not promoted w.r.t DPC dated 08/11/2011. However, the petitioners were again considered in the next DPC held on 21/11/2012 for the vacancy year 2012-13 and promoted subsequently.

(iv) The petitioner had re-appeared in final test of SICC S1. No. 83 held at CTC Coimbatore w.e.f. 13/07/2010 to 16/09/2010 in failed subject and declared pass as per CTC CBE signal No. C.lX-SICCI10-Trg Br dt 13/08/2010. As such the question of re-assignment of seniority in the rank of Insp/GD as well as protection of course seniority of the petitioner does not arise."

23. This Court has heard the submissions of learned counsel for the parties.

From the last affidavit filed on 5th February, 2019 it appears that three of the Petitioners i.e. Diwakar Singh (Petitioner No.2), Sarvesh Tomar (Petitioner No.3) and S.K.Jha (Petitioner No.4) were promoted at the DPC held on 8th November, 2011 for the vacancy year 2011-12. For want of vacancies the other eight Petitioners were not appointed but were considered at the next DPC held on 21st November, 2012 for the vacancy year 2012-13.

24. The case of the Respondents was entirely based on Standing Order No. 1/2015 being applicable to the case of the present Petitioners when their initial counter affidavit was first filed. However, in the additional counter affidavit filed on 27th September 2017, it is conceded in para 3 that since SICC Sl. Nos. 82 and 83 were conducted in 2010, it is only the Standing Order No. 6/1999 which would apply. In fact the Respondents have prayed that their earlier reply to para 11 of the writ petition which has been extracted hereinbefore by referring to Standing Order No. 1/2015 would stand modified.

25. Nevertheless it is still contended that since the facility afforded to candidates who failed in one paper by permitting them to appear only in that paper at the time of the final test of the subsequent batch is not a „re-test‟ but „an exemption granted‟ to the candidate "for not undergoing the whole

promotion course again", logically such candidate "cannot be afforded seniority for promotion with reference to the batch in which he failed in one paper."

26. The case of the Respondents that even though Standing Order No. 6/1999 does not clearly mention how the seniority on promotion of such candidates who fail in one or more papers in a promotional course and then clear the failed subject in the subsequent batch is to be reckoned, the logic of not affording them seniority for promotion with reference to SICC Sl. No. 82 in which they failed in one subject fails to account for the fact that 10 of the 11 Petitioners (barring Sh. Anuj Pathak, (Petitioner No. 8) cleared the exam and were declared pass on 13th August, 2010 even before the DPC held on 8th November, 2011. There should have been no difficulty in therefore considering the cases of at least 10 of the 11 Petitioners. Even Anuj Pathak cleared the exam on 28th October, 2010 which too was prior to the DPC held on 8th November, 2011.

27. In other words, by the time that the DPC sat on 8th November 2011 to consider the case of promotions to the post of Assistant Commandant (AC) from the rank of Inspector, the Petitioners had satisfied both requirements i.e. they had completed five years of service and qualified in the SICC in the relevant year. There should have been no difficulty in considering them for the next DPC that was held on 8th November, 2011. Three of the Petitioners were in fact promoted by that DPC as there were only three vacancies available. To that extent there can be no grievance for Petitioners No.2, 3 and 4. The Court is of the view that their seniority would obviously be arranged from the date of their respective promotions to the rank of AC. As

regards the eight remaining Petitioners who were considered in the next DPC held on 21st November, 2012, when vacancies were available for the vacancy years 2012-13, no fault can be found in this action either.

28. The only remaining grievance is arranging the inter-se seniority of the remaining eight Petitioners along with the Sl.No.83 SICC batch. Here the Respondents have stated that the allegation of the Petitioners that some of their juniors were granted seniority above them is vague and there is nothing concrete to substantiate their case. It will be open to these eight Petitioners, if they have a grievance in that regard, to draw the attention of the Respondents by a representation which will be made within four weeks specifically pointing out if any such instance exists of a person junior to them in the SICC Sl. No.83 batch being placed senior to them in the final gradation list of ACs. If such representation is made within the time stipulated, then the Respondents will dispose of such representations by speaking orders within a further period of eight weeks of receiving such representation and communicate the said order to the concerned Petitioner within a week thereafter.

29. If any of such Petitioners is still aggrieved by such order, it will be open to them to seek appropriate remedy in accordance with law.

30. The petition and the pending applications are accordingly disposed of.

S. MURALIDHAR, J.

SANJEEV NARULA J.

FEBRUARY 19, 2019 mw