Delhi High Court
Chandan Singh vs The Manager L N Girdhari K U Senior ... on 21 May, 2019
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 29.04.2019
Pronounced on: 21.05.2019
+ W.P.(C) 4877/2018 & CM APPLN. 18817/2018 & 28890/2018
CHANDAN SINGH ..... Petitioner
Through Mr.S. Sunil, Adv.
versus
THE MANAGER L N GIRDHARI K U SENIOR SECONDARY
SCHOOL AND ORS. ..... Respondents
Through Mr. Shikhar Sarin with Mr. Sunil
Singh Parihar, Advs. for R-1
Ms. Vibha Mahajan with Ms. Shweta
Bhardwaj, Advs. for R-2
Mr. Abinash K. Mishra, Adv. for R-
3&4
Mr. R. K. Sharma, OSD (Litigation)
Zone -08
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
JUDGMENT
1. Vide the present petition, the petitioner seeks direction thereby
quashing and setting aside the decision taken by the DPC on 15.03.2018 and
to issue appropriate direction for promoting the petitioner as Lab Assistant
from the date, the vacancy arose with all consequential benefits.
2. The case of the petitioner is that he was appointed as a Peon in the
school of respondent no. 1 on 22.03.1996. His qualification at the time of
appointment was Class XIIth pass. On 01.01.2000, the post of Lab Assistant
fell vacant after the retirement of Shri Rampal Singh, the then Lab Assistant.
Recruitment to the post of Lab Assistant is governed by Recruitment Rules
issued vide Notification dated 21.03.1990. As per said rules, the post of Lab
Assistant is a non-selection post. The method of recruitment is promotion
failing which, by direct recruitment. As per the Recruitment Rules,
promotion to the post of Lab Assistant can be made from Group D employee
who has rendered three years service in the said grade after appointment on
regular basis who is a matriculate or equivalent/Higher Secondary with
Science or without Science (provided has done three months orientation
course in science conducted by Directorate of Education). As per the
Recruitment Rules, the petitioner became eligible for promotion to the post
of Lab Assistant on 22.03.1999. However, on the said date, there was no
vacant post available with the respondent. The post of Lab Assistant fell
vacant on 01.01.2000 upon retirement of Shri Rampal Singh-Lab Assistant.
Immediately, on the retirement of Shri Rampal Singh, respondent ought to
have constituted the DPC and filled up the post of Lab Assistant subject to
ascertainment and eligibility as per Recruitment Rules. However, no DPC
was convened either immediately or at a later point of time. On 07.03.2001,
the post of Lab Assistant was abolished in the post fixation for the year
2000-01. Almost for a period of 14 months, the post of Lab Assistant
remained vacant. As the work of Lab Assistant was required the post was
once again created on 13.07.2004 in the post fixation of 2003-04. On the
date when the post was recreated, the petitioner was the only eligible senior
most person for the post of Lab Assistant. However, DPC was convened for
the first time after four years from the date of recreation of the post.
3. Further case of the petitioner is that by the lapse of time respondent
nos.3 & 4 who were senior to the petitioner acquired qualification of class
Xth on 15.01.2005 and 15.06.2005 respectively. It may, therefore, be seen
that three years of regular service after acquiring the essential qualification
has been attained by respondent no.3 on 15.01.2008 and by respondent no.4
on 15.06.2008.
4. No DPC was convened since 01.01.2000, therefore, the petitioner
addressed a representation to the respondent on 02.11.2006 stating that it has
come to his notice that the post of Lab Assistant is lying vacant and since he
has requisite qualifications, he may be promoted to the post of Lab
Assistant. Finally on 15.07.2008, the DPC met for consideration of
promotion for the post of Lab Assistant. After considering the representation
made by the petitioner, the DPC unanimously decided to postpone the
proceedings till all facts about the vacancy/post fixation for the period 1999-
2008 are gathered and the matter of eligibility of all candidates coming
under the zone of consideration is reassessed. It was also decided that head
of the school will seek clarification from the Act Branch of respondent no. 2
on the claim raised by the petitioner. A copy of the minutes of the DPC is
annexed as Annexure P-4.
5. The further case of the petitioner is that on 26.08.2008, respondent
no.1 wrote to the Additional Director of Education (Act), of Act Branch
giving the details of the representation given by the petitioner. However, the
meeting of DPC for promotion to the post of Lab Assistant was held on
15.07.2008 where a representation given by the petitioner was considered.
In the light of above facts, clarification was sought by the respondent School
as to whether respondent nos.3 and 4 have a right of promotion to the post of
Lab Assistant. As per the directions of the Act Branch, the school authority
was asked to send the following details.
(a) Why the DPC was not held in the year 2001 and
(b) Seniority list of Class IV employees along with qualification.
6. In response to the said query, the respondent/school has stated that the
post of Lab Assistant fell vacant only on 01.01.2000 on the retirement of
Shri Rampal Singh, the then Lab Assistant. New post fixation was awaited
and the school was informed that the post of Lab Assistant is likely to be
abolished since the Science stream was not available in the Senior
Secondary School and the same was subsequently abolished in the post
fixation for the year 2000-01. As per promotion rules, the petitioner was
eligible for being considered for promotion to the post of Lab Assistant as
on 01.01.2000 after completing three years of regular service, but he was not
considered for the same. Respondent no.2 in its noting has clearly noted that
"there was intentional delay in not constituting the DPC". The relevant file
noting reads as under:-
"It seems to be a case of intentional delay. The school did
not fill the post of Lab Assistant since 2001 even when
there was an eligible candidate. Does it mean that no Lab
Assistant was needed to help out the students till the
seniors of Mr Chandan acquired the necessary
qualification. Let the school put up its proposal whom do
they want to promote instead of rolling the ball in our
court."
7. The petitioner through his advocate on 28.04.2010 addressed a
representation to respondent nos.1 and 2 requesting them to take suitable
steps for promoting the petitioner to the post of Lab Assistant. Since the said
representation was not considered, therefore, the petitioner filed W.P.(C)
5709/2010 and on 21.10.2010, this Court issued notice in the Writ Petition
and on 09.02.2011 granted interim protection to the petitioner directing "not
to hold DPC for promotion to the post of Lab Assistant till further orders".
The said writ petition was allowed vide judgment dated 21.02.2017 with a
direction for constituting the DPC to examine the case of the petitioner for
promotion to the post of Lab Assistant in accordance with law.
8. Learned counsel appearing on behalf of the petitioner submits that
despite the positive direction issued in favour of the petitioner after a span of
more than one year, the DPC was constituted on 15.03.2018 for considering
the eligible candidates for promotion to the two vacant posts of Lab
Assistant. It is clear from the DPC proceedings that it was constituted in
compliance to the direction issued by this Court in judgment dated
21.02.2017 which is evident that paras 6 and 7 of the judgment have been
reproduced in the minutes of the DPC. However, after referring to para 6 of
the judgment dated 21.02.2017, it has been observed by the DPC that the
petitioner was not the senior most person either on 13.07.2004 or on the day
when the DPC was held. The Chairman of the DPC has, however, opined
that the petitioner should be considered first for promotion, in view of the
judgement dated 21.02.2017. The DPC, however, has once again chosen to
ignore the case of the petitioner stating that on the date of constitution of
DPC, as per post fixation for the year 2016-17, there are only two posts
vacant/available in the school and there cannot be any supersession in the
matter of promotion and the names of respondent nos.3 & 4 have been
recommended for promotion as per seniority and other eligible conditions.
9. Learned counsel for the petitioner submits that the decision taken by
the DPC on 15.03.2018 is totally misreading of the judgment dated
21.02.2017. This Court in its judgment clearly observed in para 2 that it has
been argued and rightly said on behalf of the petitioner that only the persons
who were eligible as on 13.07.2004 should be considered for promotion.
Learned counsel further submits that there is no dispute with regard to the
fact that as on 13.07.2004, the petitioner was the only person who was
eligible for promotion to the post of Lab Assistant. Respondent nos.3 and 4
did not even have the requisite qualification on the date when the post was
recreated whereas observed by the DPC that the petitioner at the time of
appointment as peon was class XIIth pass and the requisite qualification for
the post of Lab Assistant is matriculation or equivalent. Even though
respondent nos.3 & 4 were group D employees but they have acquired the
qualification of class Xth pass only on 15.01.2005 and 15.06.2005. Thus, it is
clear that even though respondent nos.3 & 4 were senior to the petitioner,
however, they became eligible much after on 13.07.2004.
10. On the other hand, counsel for the respondents submits that the DPC
found that there were three eligible candidates falling under zone of
consideration and the DPC observed that the petitioner was not the senior
most person for promotion as on 13.07.2004 i.e. the date when the post of
Lab Assistant was created/restored in the school. The DPC further observed
that the eligibility has to be determined on the date of DPC only. The
respondent no.1, however, at the outset, pointed out that the petitioner may
be considered first for promotion in view of the order passed by this Court in
view of the fact that the petitioner was the only candidate who possessed the
requisite qualifications as on 13.07.2004. However, the DPC carefully
perused the O.M. No. 35034/7/97 dated 08.02.2002 which under para 3.1
provides that there will be no supersession in the matter of promotion and
the promotion has to be made as per seniority subject to fitness/eligibility
criteria. The DPC found five persons on seniority of Class IV
employees/feeder cadre. However, out of five candidates in feeder cadre,
only three fulfilled the eligibility criteria and their position in order of
seniority were as follow:-
"a) Sh. Jagdish Prasad, Waterman
b) Sh. Veer Bahadur Singh, Waterman
c) Sh.Chandan Singh Bisht, Peon"
11. It is further submitted that as per post fixation for the year 2016-17,
there are only two posts vacant/available in the school and thus the DPC
recommended only two candidates for promotion.
12. To strengthen the arguments, counsel for the respondents has taken
the shelter of the judgment in the case of Union of India vs. N. C. Murali:
AIR 2017 Supreme Court 1496 whereby it is held that unless there is
specific rule entitling the applicants to receive promotion from date of
occurrence of vacancy, right of promotion does not crystallize on date of
occurrence of vacancy and promotion is to be extended on the date when it
is actually effected.
13. I have heard learned counsel for the parties and perused the material
available on record.
14. Undisputed facts are that the petitioner was appointed as a Peon in
School of respondent no.1 on 22.03.1996 and at that time he was class XIIth
pass. On 01.01.2000, the post of Lab Assistant fell vacant. The recruitment
to the post of Lab Assistant is governed by Recruitment Rules issued vide
notification dated 21.03.1990. As per the said rules, the post of Lab
Assistant is a non-selection post and the method of recruitment is promotion
failing which, by direct recruitment. As per the Recruitment Rules,
promotion can be made from Group D employee who has rendered three
years service in the said grade after appointment on regular basis who is a
matriculate or equivalent. As per the Recruitment Rules, the petitioner
became eligible for promotion to the post of Lab Assistant on 22.03.1999,
however, on the said date, there was no vacant post available with the
respondents. The said post fell vacant on 01.01.2000 upon the retirement of
Shri Rampal Singh, the then Lab Assistant.
15. In view of the admitted facts mentioned above, the respondents ought
to have constituted the DPC and filled up the post of Lab Assistant subject
to ascertainment and eligibility as per Recruitment Rules, however, no DPC
was convened either in January or at a later point of time. However, on
07.03.2001, the post of Lab Assistant was abolished and again created on
13.07.2004 in the post fixation of 2003-04. On the date when the post was
recreated, the petitioner was the only eligible senior most person for the post
of Lab Assistant. However, DPC was convened for the first time after four
years from the date of recreation of the post. Meanwhile respondent nos.3 &
4 who were senior to the petitioner as Peon acquired qualification of class
Xth on 15.01.2005 and 15.06.2005 respectively. The said respondents
acquired essential qualification on 15.01.2008 and 15.06.2008 respectively.
Finally on 15.07.2008, the DPC met for consideration of promotion for the
post of Lab Assistant. After considering the representation given by the
petitioner, the DPC unanimously decided to postpone the proceedings till all
facts about the vacancy/post fixation for the period 1999-2008 are gathered
and the matter of eligibility of all candidates coming under the zone of
consideration is reassessed. It was also decided that the Head of School will
seek calcification from the Act Branch of respondent no.2 on the claim made
by the petitioner.
16. It is pertinent to mention here that the respondent no.2 stated in his
reply that as per promotion rules, the petitioner was eligible for being
considered for promotion to the post of Lab Assistant as on 01.01.2000 after
completing three years of regular service, but he was not considered for the
same. The said respondent in its noting has clearly stated that "there was
intentional delay in not constituting the DPC". Despite that, DPC was not
constituted. Accordingly, the petitioner through his advocate on 28.04.2010
addressed a representation to respondent nos.1 & 2 requesting them to take
suitable steps for promoting the petitioner to the post of Lab Assistant. Since
the said representation was not considered, therefore, the petitioner filed
W.P.(C) No.5709/2010 and same was allowed vide judgment dated
21.02.2017 with a direction for constituting the DPC to examine the case of
the petitioner for promotion to the post of Lab Assistant in accordance with
law.
17. In para 6 of the aforesaid judgment, this Court held that in view of the
fact that the petitioner was the senior most person as on 13.07.2004 and has
accordingly to be considered first for promotion to the post of Lab Assistant.
18. Despite the positive direction issued in favour of the petitioner, after a
span of more than one year, the DPC was constituted on 15.03.2018. It is
clear from the DPC proceedings that it was constituted in compliance to the
direction issued by this Court in judgment dated 21.02.2017.
19. It is pertinent to mention here that it has been observed by the DPC
that the petitioner was not the senior most person either on 13.07.2004 or on
the day when the DPC was held. This fact is correct to the extent that the
petitioner was not the senior most in the seniority of the Peon but he was the
senior most person eligible to the post of Lab Assistant for the reason that
only the petitioner had eligibility to be promoted for the said post much
before 13.07.2004. Thus, the opinion of the DPC is wrong and contrary to
the record. Moreover, the decision taken by the DPC on 15.03.2018 is
totally misreading of the judgment dated 21.02.2017. This Court in its
judgment clearly observed in para 2 that it has been argued and rightly said
on behalf of the petitioner that only the persons who are eligible as on
13.07.2004 should be considered for promotion.
20. There is no dispute with regard to the fact that as on 13.07.2004, the
petitioner was the only person who was eligible for promotion to the post of
Lab Assistant, whereas respondent nos.3 & 4 did not even have the requisite
qualification on the date when the post was recreated, whereas it is wrongly
observed by DPC that the petitioner was not the senior most person as on
13.07.2004.
21. It is also pertinent to mention here that Chairman of DPC has,
however, opined that the petitioner should be considered first for promotion
in view of the judgment dated 21.02.2017, the said fact has been ignored by
the DPC.
22. The petitioner at the time of appointment as Peon was class XII th pass
and requisite qualification to the post of Lab Assistant is matriculation or
equivalent. Though respondent nos.3 & 4 were Group D employees but they
have acquired the qualification class Xth only on 15.01.2005 and 15.06.2005.
Thus, it is clear that even though the respondent nos.3 & 4 were senior most
to petitioner as Peon, however, they become eligible much after on
13.07.2004.
23. It is pertinent to mention that in para 6 of the judgment dated
21.02.2017, it has held that the petitioner was the senior most person as on
13.07.2004 and has, therefore, "to be considered first for promotion to the
post of Lab Assistant before consideration of respondent nos.3 & 4". The
direction of this Court to consider the senior most person on 13.07.2004 has
necessarily mean as the eligible senior most person who was eligible on
13.07.2004.
24. The respondent no.2 has admitted before this Court that respondent
nos.3 & 4 were not eligible for the post of Lab Assistant as on 13.07.2004.
Therefore, in the DPC which was met on 15.03.2018 ought to have
considered the senior most eligible person as on 13.07.2004. Instead of
doing so, the DPC has once again committed the same error which had been
committed earlier on 15.07.2008.
25. The above facts disclose that there has been a deliberate attempt to
delay the DPC proceedings to accommodate the candidates who were not
eligible on the date of arising of the post of Lab Assistant. The aforesaid
post was abolished and then recreated. The post was recreated only because
the services of the Lab Assistant was immediately required. However, even
after recreation, the post was deliberately kept vacant for a long span of
almost seven years. By the passage of time, respondent nos.3 & 4 acquired
the requisite qualification of Xth pass. In these circumstances, the principle
that the eligibility condition has to be seen from the date of constitution of
DPC cannot apply to the facts of the present case.
26. In para 6 of the aforesaid judgment, this Court has held that the
petitioner was the senior most person as on 13.07.2004 and has accordingly
to be considered first for promotion to the post of Lab Assistant before
considering the respondent nos.3 & 4. Para 6 is reproduced as under:-
"In view of the fact that petitioner was the senior most
person as on 13.07.2004 and has accordingly to be
considered for promotion to the post of Lab Assistant
before consideration of Sh. Jagdish Singh Prasad and Sh.
Bahadur Singh, according, this writ petition is disposed
of with the direction that the respondent No 1/school must
now constitute a DPC/Selection Committee in accordance
with the applicable rules and guidelines and in case the
petitioner before this DPC succeeds in showing that he
was a senior most person as on 13.07.2004 for being
appointed to the post of Lab Assistant and the petitioner
otherwise has the necessary eligibility criteria as
required for the post of Lab Assistant, the DPC in
accordance with the rules and guidelines of the
respondent No 1/school will consider the case of the
petitioner for promotion to the post of Lab Assistant."
27. In view of above facts and circumstances of this case, I hereby direct
the respondents to promote the petitioner from the date of 13.07.2004 when
the post was created in the post fixation year 2003-2004 with all
consequential benefits within four weeks from the receipt of this order.
Since respondent nos.3 & 4 have already been promoted, liberty is granted
to the respondents either to create one post of Lab Assistant or demote either
respondent no.3 or respondent no.4 whosoever is junior most.
28. The writ petition is allowed, accordingly.
CM APPL. Nos. 18817/2018 & 28890/2018
In view of the order passed in the present writ petition, these
applications have been rendered infructuous and are accordingly, disposed
of.
(SURESH KUMAR KAIT)
JUDGE
MAY 21, 2019
ms/rhc
