Delhi High Court
Rachin Mittal vs Union Of India & Ors. on 17 October, 2019
$~22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 17.10.2019
+ W.P.(C) 4356/2019& CM. No.19343/2019
RACHIN MITTAL ..... Petitioner
Through: Mr. Sachin Mittal, Adv.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Rajesh Kumar, Adv. for
UOI.
CORAM:
HON'BLE MR. JUSTICE G.S. SISTANI
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
JUDGMENT
G.S.SISTANI, J. (ORAL)
1. The present petition is directed against order dated 02.04.2019
passed by the Central Administrative Tribunal ('Tribunal'). Some
necessary facts which are required to be noticed for disposal of this
writ petition are that the petitioner was appointed as an
Inspector/Preventive Officer (Customs) pursuant to SSC CGLE -
2008. He joined service on 27.01.2011 and has continued to work till
date.
2. The grievance of the petitioner is that persons junior to him
have been promoted while the petitioner has been overlooked on the
ground that the petitioner has not completed the requisite length of
W.P.(C) 4356/2019 page 1 of 10
service. Learned counsel for the petitioner submits that persons junior
to him were first promoted on 23.06.2017 and thereafter on
28.03.2018, ignoring the petitioner who was senior to the persons so
promoted each time. The grievance of the petitioner has been stated in
para 4.11 of the O.A., which we reproduce below :
"4.11 Applicant's grievance in the present application
arises out of the fact that the Applicant has completed 6
years of regular service on 27.01.2017 and thus, the
Applicant falls short of less than 2 years in completing
the regular service of 8 years, which is the prescribed
eligibility condition for promotion to the post of
Superintendent of Customs (Preventive). Thus,
Respondents were bound to consider the Applicant also
for promotion after giving him the relaxation in the
eligibility condition according to the aforesaid DoPT
O.M., when Respondents were considering the officers
junior to the Applicant in the seniority list for promotion.
However, the Respondents, vide the Promotion Order
dated 28.03.2018, promoted the officers junior to the
Applicant and ignored the claim of the Applicant for
promotion in utter disregard to the law settled in the
aforesaid judgments. A true copy of the Common
Seniority List of Inspectors (Preventive Officers) is
marked and annexed herewith as ANNEXURE A-9."
3. Mr. Sachin Mittal, learned counsel for the petitioner has placed
strong reliance on DoPT O.M. dated 25.03.1996, which we reproduce
below:
" No. AB/14017/12/88 - Estt (RR)
Government of India
W.P.(C) 4356/2019 page 2 of 10
Ministry Of Personnel Public Grievance &
Pensions
(Department of Personnel & Training)
**********
New Delhi, the 25th March, 96
Office Memorandum
Subject: Revision of Guidelines for
framing/amendment/relaxation of recruitment rules -
consideration of seniors in cases where juniors are
considered.
The undersigned is directed to refer to para 3.1.2 of
part.III in this Department's OM No. AB/14017/12/87 - Estt.
(RR) dated 18th March, 1988 wherein it was suggested that a
suitable "Note" may be inserted in the Recruitment Rules to
the effect that seniors who have completed the probation
period may also be considered for promotion when their
juniors who have completed the requisite service are being
considered.
2. In the light of the Supreme Court judgment in R.Prabha
Devi and others versus Government of India and Others in
Civil Appeals Nos. 2040-42 of 1987 decided on March 8, 1988
on the judgment and order dated Feb.11, 1986 of the Central
Administrative Tribunal, New Delhi and in continuation of OM
of even No. dated 23.10.1989 Government have decided to
amend para 3.1.2 of Part-III in this Department's OM No. AB-
14017/12/87 - Estt. (RR) dated 18th March, 1988.
Accordingly, the last sentence of para 3.1.2 will stand
amended to read as under:-
"To avoid such a situation the following note may be inserted
below the relevant service rules/column in the schedule to the
Recruitment Rules.
W.P.(C) 4356/2019 page 3 of 10
"Where juniors who have completed their
qualifying/eligibility service are being considered for
promotion, their senior would also be considered provided
they are not short of the requisite qualifying/eligibility service
by more than half of such qualifying/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/eligibility service."
1. Consequently para 2.1.2 of this Department O.M. No.
AB-14017/12/87 -Estt. (RR) dated the 18th March, 1988 will
also be amended with the addition of the following sentence
after 3rd sentence of para 2.1.2 ibid.
"The administrative Ministries/Departments are also
empowered to amend all the service rules/recruitment rules to
incorporate the "Note" as amended above."
4. The further argument of the petitioner is that respondent No. 1
has been following O.M. dated 25.03.1996 and has been granting
benefits to such officers who could not be promoted on account of not
having completed the requisite length of service. Additionally, Mr.
Mittal also relies upon the judgment in the case of Pankaj Nayan &
Ors. vs. UOI & Ors, O.A. No. 3405/2014 dated 12.05.2016, wherein
the Tribunal has held as under:
"27. However, Full Bench has given reasons as to why in their
opinion the DoP&T OMs dated 18.03.1988, 19.07.1989,
25.03.1996 and 24.09.1997 would not be covered by this law.
According to them, these OMs can well be considered to have
been issued by the Executive of the Union in the Legislative
power conferred upon by Article 73 of the Constitution. They
deal with uncovered issues i.e. a situation where a junior is
W.P.(C) 4356/2019 page 4 of 10
being considered for promotion even though his senior was not
being so considered owing to the fact that he does not have the
prescribed eligibility service. Full Bench has held that such a
situation had not been covered by the relevant Service Rules.
Further, they have gone on to hold that in the aforesaid OMs
there was a mandate that all cadre controlling authorities
should insert a note in their respective Rules to the effect that
when a junior was being considered for promotion then his
seniors should also be considered by giving relaxation in the
eligible service. Full Bench has observed that the directive
issued by DoP&T has admittedly been complied with by many
cadre controlling authorities by inserting such a note in the
Recruitment Rules. Moreover, in cases where such a note has
not been incorporated, Government has been freely resorting to
taking relaxation in the rules as regards eligibility.
5.
29. Thus, Full Bench has given ample justification as to why
O.M. dated 25.03.1996 has to be read along with the service
rules and why this is not against the law laid down by Hon'ble
Supreme Court that executive instructions cannot override
statutory rules. As stated earlier, this O.M. prescribing
relaxation in eligibility service for seniors by maximum of 02
years in situation when their juniors are being considered for
promotion will operate in areas uncovered by service rules."
5. Mr. Rajesh Kumar, learned counsel for the respondents
however submits that since the O.M. was not incorporated in the
Recruitment Rules, hence the O.M. cannot be relied upon.
6. We may note an important factor which is required to be
considered in this matter viz. the Recruitment Rules have since been
amended by Notification dated 10.06.2019, which amendments read
as under :
W.P.(C) 4356/2019 page 5 of 10
" G.S.R. 176. - In exercise of the powers conferred by the
proviso to article 309 of the Constitution, the President hereby
makes the following rules further to amend the Superintendent
of Customs(Preventive) Recruitment Rules, 1983 namely:-
1. (1) These rules may be called the Superintendent of
Customs (Preventive) Recruitment (Amendment) Rules,
2019.
2. In the Superintendent of Customs(Preventive)
Recruitment Rules, 1983, in the Schedule, in column 11,
under the heading "Promotion" and the entry relating
thereto, the following Note shall be inserted,namely:-
"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."
7. During the course of hearing, we have also asked learned
counsel for the respondents whether this O.M. has been implemented
in other cases or not. Learned counsel for the respondent very fairly
submits that in the case of Pankaj Nayan, the O.M. has been complied
with based on the order of the Tribunal.
8. Learned counsel for the petitioner submits that besides the case
of Pankaj Nayan, there are other cases also where this O.M. has been
W.P.(C) 4356/2019 page 6 of 10
relied upon and promotions have been granted. This fact is not
disputed by the counsel for the respondents.
9. Reference is also made to the case titled Manoj Kumar &
Others v. Union of India, O.A. No. 1106/2014 wherein the benefit
was given even from a back date and the same practice was followed
by the Chennai Commissionerate vide order dated 15.03.2016.
10. Counsel for the petitioner has also placed reliance on the legal
opinion which was sought post the decision in the case of Pankaj
Nayan dated 18.06.2019. The operative portion of which reads as
under :
"After dismissal of the writ petition, the order dated
29.10.2018 in W.P.(C) No. 11277/2016 Union of India vs.
Pankaj Nayan & Ors. was referred to DoP&T for seeking
advice as to acceptance or challenging the same before the
Hon'ble Supreme Court. DoP&T advised inter alia that
since the petitioner's grievance is within the scope of
DoP&T instruction and relaxation has already been granted
by DoP&T to consider the promotion of petitioners under
Sr. Jr. clause, it would not be appropriate/legally tenable to
file SLP challenging the order of Hon'ble Delhi High Court
dated 29.10.2018 in W.P.(C) No. 11277/2016. However,
DoP&T advised to take opinion of Ministry of Law and
Justice before taking final decision in the matter.
Accordingly, opinion of Department of Legal Affairs (DoLA)
under Ministry of Law and Justice was also obtained who in
turn advised that the present case is not fit for filing an SLP
before the Hon'ble Supreme Court.
The matter has been examined in the Board, considering the
legal position as explained above and advise of DoP&T and
DoLA, Board has decided to accept the order dated
W.P.(C) 4356/2019 page 7 of 10
12.05.2016 of Hon'ble CAT, PB, New Delhi in O.A. No.
3405/2014 filed by Pankaj Nayan & Ors."
11. Learned counsel for the respondents has relied upon a judgment
titled Union of India and Others vs. Somasundaram Vishwanath
and Others. reported as (1989) SCC (L & S) 150, para 6 of which is
reproduced below:-
"6. It is well settled that the norms regarding recruitment and
promotion of officers belonging to the Civil Services can be laid
down either by a law made by the appropriate legislature or by
rules made under the proviso to Article 309 of the Constitution
of India or by means of executive instructions issued under
Article 73 of the Constitution of India in the case of Civil
Services under the Union of India and under Article 162 of the
Constitution of India in the case of Civil Services under the
State Governments. If there is a conflict between the executive
instructions and the rules made under the proviso to Article 309
of the Constitution of India, the rules made under proviso to
Article 309 of the Constitution of India prevail, and if there is a
conflict between the rules made under the proviso to Article 309
of the Constitution of India and the law made by the
appropriate legislature the law made by the appropriate
legislature prevails.
xxxx xxxx xxxx xxxx"
12. We have heard learned counsel for the parties and have
considered their rival submissions.
13. It is not in dispute that the petitioner has not completed the
length of service and hence has not been considered for promotion for
that reason. It is also not in dispute that the persons junior to the
petitioner have been considered in the DPC which was held on
24.12.2018. It is also not in dispute that after the decision was
rendered by the Tribunal in the case of Pankaj Nayan, benefit of the
W.P.(C) 4356/2019 page 8 of 10
O.M. was given to the petitioner in that case and Pankaj Nayan was
promoted. Learned counsel for the petitioner has also cited cases of
identically placed persons who have also been given benefit of O.M.
dated 25.03.1996.
14. Counsel for the respondents has submitted that since O.M.
dated 25.03.1996 was not incorporated in the Recruitment Rules, the
O.M. could not have been relied upon. However, we do not find force
in the submission of counsel for the respondents for the reason that
O.M. dated 25.03.1996 issued by the DoPT could apply by its own
force to the petitioner as well. In fact the respondents have relied upon
the same O.M and have given the benefit in the case of Pankaj Nayan
(supra).
15. That apart, we find that the Recruitment Rules have since been
amended on 10.06.2019; and the conditions of the O.M. now stand
incorporated in the Recruitment Rules. This clearly shows the
intention on the part of the respondent department to comply with the
terms of the O.M.
16. For the reasons stated hereinabove, order dated 02.04.2019 of
the Tribunal is quashed and set-aside. It is directed that the petitioner
will be granted promotion from the date his juniors were granted
promotion as the petitioner has completed more than 6 years of service
as on 27.01.2017 and the deficiency period is not less than 2 years.
17. The DPC in the case of the petitioner will be held within a
period of six weeks.
18. The interim order is vacated.
W.P.(C) 4356/2019 page 9 of 10
19. The writ petition stands disposed of in the above terms. Pending
applications, if any, also stand disposed of.
G.S.SISTANI, J
ANUP JAIRAM BHAMBHANI, J
OCTOBER 17, 2019/uj
W.P.(C) 4356/2019 page 10 of 10
