Delhi High Court
Neelima Azhamchlil Moonnambeth vs Union Of India & Anr. on 24 May, 2021
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 24.05.2021
+ W.P.(C) 2868/2021
NEELIMA AZHAMCHALIL
MOONNAMBETH .....Petitioner
Through Mr.Romil Pathak, Adv.
versus
UNION OF INDIA & ANR. ..... Respondents
Through Mr.Avnish Singh, Ms.Pushplata
Singh, Ms.Sumanlata Gautam,
Advs.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (Oral)
The petition has been heard by way of video conferencing.
CM 8645/2021(Exemption)
Allowed, subject to all just exceptions.
WP(C) 2868/2021
1. This petition has been filed challenging the order dated
19.12.2019 passed by the learned Central Administrative Tribunal
('CAT'), Principal Bench in O.A. No. 3682 of 2019, titled Neelima
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Azhamchalil Moonnambeth & Ors. v. Union of India & Anr.,
dismissing the said O.A. of the petitioner herein.
2. The petitioner had filed the above O.A. primarily challenging
the Seniority List dated 04.07.2018 for the post of Botanical Assistant
and had sought retrospective seniority from the date when the
petitioner became eligible to be promoted as Botanical Assistant
Grade-II in accordance with the then existing Recruitment Rules. The
petitioner also challenged the subsequent promotion granted to others
to the post of Botanist by the Departmental Promotion Committee
('DPC') conducted on 29.09.2018.
3. The petitioner contends that she was appointed to the post of
Preservation Assistant Grade-I and in accordance with the then
existing Recruitment Rules, the promotional avenue for the petitioner
was Botanical Assistant Grade-II, for which she was eligible to be
considered after three years of regular service. The second
promotional avenue from the post of Botanical Assistant Grade-II was
to the post of Botanical Assistant Grade-I, for which she would have
become eligible after three years of further service.
4. The petitioner further submits that the last DPC meeting for
making promotions to the post of Botanical Assistant Grade-II, were
held on 2nd - 3rd March, 2009, and three persons, who were admittedly
senior to the petitioner, were promoted to the said post.
5. The petitioner further submits that vide an Office order dated
19.07.2010, pursuant to the recommendations of the VIth Central Pay
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Commission, the post of Botanical Assistant Grade-II was merged
with the post of Botanical Assistant Grade-I and was designated as
Botanical Assistant, with retrospective effect from 01.01.2006,
however, the Recruitment Rules for the merged posts were notified
only on 04.12.2015. Due to the delay in the notification of the
Recruitment Rules, though appointment through Direct Recruitment
continued, no DPC for promotion was held.
6. The petitioner was promoted to the said merged post of
Botanical Assistant vide the Promotion order dated 29.02.2016.
7. The petitioner claims that her seniority should be counted from
the date when she became eligible for the post of Botanical Assistant
Grade-II.
8. The learned CAT has rejected this claim of the petitioner,
observing as under:
"8. In the representation made by the
applicants, the grievance was mostly about the
delay in consideration of their cases for
promotion. They stated that had a DPC been
convened in the year 2010-11, they would have
been promoted. All that is, in the realm of
speculation. No administration can be
compelled to hold a DPC at a particular time.
Much would depend on existence of vacancies,
administrative exigency or convenience. An
employee has to take a chance, as and when it
is convened. At any rate, there cannot be a
deemed promotion, just because the convening
of DPC was delayed."
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9. The learned counsel for the petitioner, placing reliance on the
judgment of the Supreme Court in Y.V. Rangaiah & Ors. v. J.
Sreenivasa Rao & Ors., (1983) 3 SCC 284, submits that the delay in
holding a DPC cannot prejudice the petitioner and the case of the
petitioner for promotion was to be considered in accordance with the
then existing Recruitment Rules and should not have been postponed
for want of the Recruitment Rules for the merged post of Botanical
Assistant. He submits that therefore, her seniority is to be counted
from the date that the post of Botanical Assistant Grade-II became
available for departmental candidate through promotion.
10. We do not find any merit in the submission made by the learned
counsel for the petitioner.
11. The post of Botanical Assistant Grade-II stood merged with the
post of Botanical Assistant Grade-I pursuant to the Office Order dated
19.07.2010. Thereafter, there could have been no promotion made to
the post of Botanical Assistant Grade-II, which post seized to exist.
Though, we appreciate that the Recruitment Rules should have been
immediately formalised and implemented for the new post of
Botanical Assistant, the delay in notifying such Recruitment Rules for
the merged post or in finally making the promotion there-against
cannot justify the claim of the petitioner to seek seniority with
retrospective effect from any date prior to the actual appointment.
12. In K. Meghachandra Singh & Ors. v. Ningam Siro & Ors.,
(2020) 5 SCC 689, the Supreme Court has held that a person is
disentitled to claim seniority from a date he was not borne in service.
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It has held that a seniority is to be given only from the date of
appointment and not from the date of initiation of recruitment process.
In the present case, in fact, the recruitment process had not even
started or initiated.
13. Reliance of the learned counsel for the petitioner on the
judgment in Y.V. Rangiah (supra) is also ill-founded inasmuch as the
same concerned the retrospective application of the Recruitment Rules
to the vacancies that occurred prior thereto and not to the issue of
inter-se seniority.
14. In view of the above, we find no merit in the present petition.
The same is dismissed. There shall be no order as to costs.
15. The order be uploaded on the website forthwith. Copy of the
order be also forwarded to the learned counsel through e-mail.
NAVIN CHAWLA, J
MANMOHAN, J
MAY 24, 2021
RN/P
Signature Not Verified
Digitally Signed By:SHALOO
BATRA
Signing Date:27.05.2021
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