Delhi High Court

Manisha Rani vs Inter-University Accelerator ... on 29 May, 2019

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Reserved on:       07.05.2019
                                         Pronounced on:     29.05.2019

+       W.P.(C) 4367/2016 & CM APPL. 18272/2016
        MANISHA RANI                                        ..... Petitioner
                            Through      Ms.Mini Pushkarna, Adv. with
                                         Ms.Swagata Bhuyan, Ms.Shiva
                                         Pandey & Ms.Rikita Ganju, Advs.
                                         with petitioner in person.

                            versus

        INTER-UNIVERSITY ACCELERATOR
        CENTRE & ORS                            ..... Respondents
                     Through  Ms.Malvika Trivedi, Adv. with
                              Mr.Anurag Misra, Adv. for R-1.
                              Mr.Ravinder Agarwal, Adv. with
                              Mr.Girish Pande, Adv. for R-2.

        CORAM:
        HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                               JUDGMENT

1. Vide the present petition, the petitioner has prayed as under:

a. Direct the respondent no.1 to promote the petitioner to the post of

Senior Assistant with the respondent no.1 with effect from

22.01.2014, or in the alternative,

b. Direct the respondent no.1 to promote the petitioner to the post of

Personal Assistant in lieu of Respondent No.3, with effect from

22.01.2014 after taking necessary steps.

c. Set aside and quash the Advertisement no.2/2016 published in the

Employment News of 16th to 22nd April 2016 or in so far as the same

relate to the direct recruitment of candidates to the post of Senior

Assistant in the Respondent No.1 organization.

2. Learned counsel appearing on behalf of the petitioner, on instructions,

stated that the petitioner shall only press prayer 'b' which is evident from

order dated 10.07.2017 passed in the present petition.

3. The brief facts of the petition are that the petitioner joined the services

of the respondent no.1 to the post of Stenographer on 22.01.2009. As per the

prevailing rules and regulations, she became entitled to the post of Personal

Assistant on 22.01.2014. However, just about one month before the

petitioner became entitled to be promoted to the aforesaid post, the

respondent no.1 promoted the respondent no.3 to the post of Personal

Assistant on 03.12.2013 from the post of Assistant. The respondent no.3 at

the time of being promoted, did not have the basic criteria and eligibility

conditions to be promoted to the post of Personal Assistant. The said

respondent had neither worked as Stenographer for the preceding five years,

nor he had, as a consequence of not being a Stenographer, the minimum

typing speed essentially required to be promoted to the post of Personal

Assistant. As per the information dated 08.12.2015 provided by the

respondent no.1, there is only one post of Personal Assistant to which the

petitioner was entitled to be promoted. There are, however, nine posts of

Senior Assistants having the same pay band as that of the Personal Assistant,

i.e., of ₹4200. Accordingly, the petitioner had been making representations

to the respondents in the year 2015-16 for promoting her to the post of

Senior Assistant and in the next grade pay. The respondents had been

replying the petitioner that her case would be considered as and when the

post is vacant in the next hierarchy.

4. Further case of the petitioner is that on 16-22.04.2016, the respondent

no.1 could have promoted the petitioner to the post of Senior Assistant, as

they had been doing on earlier occasions, with other employees, so that her

promotional avenue is not hampered. However, to the utter dismay and

shock of the petitioner, the respondent no.1 has come out with an

advertisement no.2/2016 wherein they have sought appointment to the

prevailing vacant post of Senior Assistant by direct recruitment.

5. Learned counsel appearing on behalf of the petitioner submits that the

petitioner, who is working as Stenographer since 22.01.2009, has been

wrongfully denied promotion to the post of Personal Assistant. Instead, error

has been committed by respondent no.1 in promoting respondent no.3, who

is merely 12th Pass, from the post of Assistant to the post of Personal

Assistant. This is despite the fact that feeder cadre for promotion to post of

Personal Assistant is Stenographer and not Assistant. As per amended Bye

Laws, November, 2012, the hierarchy of promotion from post of

Stenographer is Personal Assistant and then Personal Secretary. The

eligibility conditions of promotion from stenographer is a Bachelor's degree

of a recognised university with a minimum speed of 80 wpm in shorthand

and 40 wpm in typing with three years experience as stenographer. As per

earlier Bye Laws of August, 1997, the eligibility condition of promotion

from Stenographer was same whereas hierarchy of promotion from post of

Assistant is Senior Assistant and then Section Officer. Post of Assistant

(Clerical Cadres) and Stenographer (Technical Cadre) are two different

cadres having different avenues of promotion. While the post of Assistant is

filled 50% by promotion and 50% by Direct Recruitment whereas the post

of Stenographer is filled by 100% Direct Recruitment.

6. Further submitted that the feeder cadre for promotion to the post of

Assistant is LDC having 8 years continuous regular service. Respondent

no.3 worked on the post of LDC for 9 years and subsequently to the post of

Assistant for 5 years, as Senior Assistant on adhoc basis for 2 years 1 month

from 18.10.2011 to 02.12.2013, before he was promoted as Personal

Assistant, illegally. The aforesaid experience of respondent no.3 was

relevant only for promotion to the post of Senior Assistant, as per the

prevailing Bye Laws/RRs, and not relevant for promotion to the post of

Personal Assistant, which was a separate and independent cadre. Moreover,

eligibility criteria for promotion to the post of Senior Assistant is 5 years

continuous regular service as Assistant. On the other hand, eligibility criteria

for promotion to the post of Personal Assistant is five years continuous

regular service as Stenographer, which qualification the petitioner had and

respondent no.3 does not have.

7. Learned counsel for the petitioner further submitted that the petitioner

was appointed to the post of Stenographer with respondent no.1 on

22.01.2009. She thus, became entitled for promotion i.e. fulfilling the

eligibility condition for promotion from Stenographer to Personal Assistant

on 22.01.2014 whereas post of Personal Assistant had become vacant on

01.08.2013. Just about one month before the petitioner became entitled to

be promoted to the post of Personal Assistant, respondent no.1 promoted the

respondent no.3 on 03.12.2013 from the post of Assistant to Personal

Assistant when post of Assistant is not even a feeder cadre to the post of

Personal Assistant.

8. On the other hand, learned counsel appearing on behalf of respondent

no.1 submits that the petitioner did not challenge the merger of posts of

Senior Assistant and Personal Assistant in the present writ petition. To the

contrary, the petitioner relied upon the merger, which is evident from the

contention of the petitioner in the writ petition itself. The petitioner joined

the services of the respondent no.1 on 22.01.2009 as Stenographer. She was

not eligible for promotion to the position of Personal Assistant on the date of

convening of DPC in December, 2013. The Office Memorandum dated

08.09.1998 captioned „Procedure to be observed by the Departmental

Promotion Committees (DPCs) - Model Calendar for DPCs and related

matter‟ issued by the Government of India states, "...The DPCs should

access the suitability of the officers for promotion on the basis of their

service records and with particular reference to the ACRs for five preceding

years". In the petitioner's case the ACR's of 5 preceding years, became

available only after 31.03.2014 and could only be considered for the

vacancy arising the following year. Further, the Government of India

directives do not allow posts to be kept vacant for more than a year. Also, as

per the extant instructions, the Departmental Promotion Committees enjoy

full discretion to devise their own methods and procedures for objective

assessment of the suitability of the candidates who are to be considered by

them. On the basis of ACR's placed before the DPC, the DPC

recommended the candidature of respondent no.3, who was the senior most

eligible candidate in the feeder cadre, for substantive appointment as

Personal Assistant in the Grade Pay of ₹4,200/-. Moreover, the respondent

no.3 has 25 years of service and has been stagnating without a promotion

since 2005 and was on the verge of retirement.

9. Learned counsel for respondent no.1 further submitted that as per the

Recruitment Rules of respondent no.1, the ratio of filing up of the position

of Senior Assistant is 50:50 by promotion and by direct recruitment. The

claim of the petitioner is that the respondent no.1 has committed an illegality

by granting promotion to the higher posts by clubbing two cadres which are

different and independent of each other is ex facie incorrect and unfounded.

The position of Personal Assistant and Senior Assistant are grouped together

in the pay band of ₹4,200/- in order to give promotional avenues to

administrative staff as the position of Personal Assistant is a single vacancy.

The petitioner herself acquiesced to the grouping of posts in her letter dated

24.07.2015. Posts which are substantially comparable as regards duties and

responsibilities with a uniform scale of pay can be grouped or merged. The

merger does not require any change in the recruitment rules as no new posts

are created but only grouped together for promotion and to avoid stagnation

in either cadre.

10. It is further submitted that the Handbook for Personal Officers

brought out by the Government of India, Department of Personnel &

Training states, "E. GROUPING OF POSTS - in cases where there are

posts of similar duties and responsibilities but under different designations

the number of such posts may be taken as a whole, wherever necessary or

possible. This is particularly helpful in cases where there are single posts

with different designations but similar duties."

11. Learned counsel for respondent no.1 further submitted that in the

present case, the pay scale of Personal Assistant and Senior Assistant is the

same and further the respondent no.1 and the DPC are well within their

powers to group the posts for promotion. The petitioner has nowhere in the

writ petition questioned the merger of the posts and/or there is no prayer

whatsoever challenging the said merger.

12. To strengthen her arguments, learned counsel for the respondent no.1

has relied upon the case of State of Sikkim & Ors. vs. Adup Tshering

Bhutia & Ors.: (2014) 12 SCC 507 whereby it has been held that there is no

vested right to promotion or seniority and Articles 14 & 16 of the

Constitution do not stand in the way of the State integrating different cadres

into one cadre.

13. Further relied upon the cases of the Sports Authority of India & Ors.

vs. Vijay Kumar decided on 18.01.2010 by this court in W.P.(C) 3487/2008

whereby held that in cases where people are holding isolated posts with no

chances of promotion, they should be merged with the general cadre to

achieve greater effectiveness.

14. She also relied upon the case of High Court of Delhi and Anr. vs.

A.K. Mahajan and Ors: (2009) 12 SCC 62 whereby the Hon'ble Supreme

Court has held that a mere chance of promotion being affected by

amendment is inconsequential. Since promotion is not a right of an

employee, a mere chance of promotion if affected cannot and does not

invalidate the action on part of the employer.

15. In case of Chuba Jamir and Ors. vs. The State of Nagaland and

Ors.: (2009) 15 SCC 169, whereby the Hon'ble Supreme Court has held that

in the interest of administration, the State Government is open to bring about

merger as a matter of policy and the same does not warrant any interference

from the Court.

16. In addition to above, learned counsel for respondent no.1 has relied

upon S.P. Shivprasad Pipal vs. Union of India: (1998) 4 SCC 598 whereby

it has been held that A decision to merge such cadres is essentially a matter

of policy. However, it is possible that by reason of such a merger, the

chance of promotion of some of the employees may be adversely affected,

or some others may benefit in consequence. She also placed reliance upon

the case of Ashok Kumar Uppal & Ors. vs. State of J&K & Ors.: AIR 1998

SC 2812.

17. I have heard learned counsel for the parties and perused the material

on record.

18. It is not in dispute that the feeder cadre for promotion to the post of