W.P.(C)/5436/2014 of MAHESH CHAND Vs UNION OF INDIA & ORS

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Decided on: 26.08.2014

+W.P.(C) 5436/2014, C.M. NOS. 10806-10808/2014

MAHESH CHAND..... PetitionerThrough:Sh.HimanshuChaubeyandSh.Ashwarya Sinha, Advocates.

Versus

UNION OF INDIA AND ORS...... RespondentsThrough : Sh. Ajay Digpaul, CGSC, for Resp. Nos.1 and 2.Sh. Vardhman Kaushik, for Sh. Naresh Kaushik,Advocate, for Resp. No.3.

CORAM:HON'BLE MR. JUSTICE S. RAVINDRA BHATHON'BLE MR. JUSTICE VIPIN SANGHI

MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)

%C.M. NO. 10806/2014 (for exemption)

Allowed, subject to all just exceptions.

W.P.(C) 5436/2014, C.M. NO.10807-10808/2014

1.The petitioner is aggrieved by an order dated 28.05.2013 of theCentral Administrative Tribunal (CAT) in O.A. No. 2328/2012. TheCAT had rejected the petitioner’s application questioning the rejectionof his representation. He was selected to the post of SO/Gr-IStenographer in the limited departmental examination conducted, the

results of which were declared in March-April 2006. However, herefused the appointment on 11.07.2006.

2.Briefly the facts are that the petitioner, at the relevant time, wasworking as Personal Assistant. The next promotional grade is the postofSO/Grade-IStenographer,inrespectofwhichalimiteddepartmentalquotaexists.Thepetitionerparticipatedinthedepartmental test held in 2004. The results were declared in March-April 2006. He was successful and was offered appointment.However, he refused the appointment on 11.07.2006 due to somepersonal problems, i.e. illness of his mother. This refusal was acceptedby the respondents on 02.08.2006. Thereafter, the petitioner appears tohave had change of heart and represented that he would like to resilefrom his refusal – which he did by letter dated 18.12.2006. By this, hesought for issuance of appointment letter to the promotional post. Thepetitioner contends that despite this representation, nothing was heard.In the meanwhile, he made several other representations between05.01.2007 and 25.03.2008. Finally on 15.04.2008, the representationwas rejected; however, no reasons were adduced. The petitionercontended – before the CAT as well as here, that the reply/rejectionwas dissatisfactory since no reasons were forthcoming and he appliedto the concerned authorities under the RTI Act, 2005 upon which hewas furnished with some replies, including file notings. His similarrequests with respect to correspondence exchanged with the UnionPublic Service Commission (UPSC) were, however, not so successful.In these circumstances, he made representation yet again, which was

rejected on 05.08.2010. This impelled him to issue legal notice dated15.12.2011 which was refuted. He, therefore, approached the CAT on13.07.2012. The CAT, by its impugned order, after noting all these aswell as considering the guidelines of the Department of Personnel andTraining (DOPT), dealing with the subject of refusal of promotion -which appear to have been taken into consideration by the respondentswhile rejecting his legal notice, was of the opinion that the decision toreject the representation was not arbitrary. The CAT’s reasoning is as

follows:

On the basis of the documents and submissions made onbehalf of both the parties, the only issue to be decided isthat whether the relief is being sought by right structure orwithin by that of conception. It is to be noted that the OfficeMemorandum dated 10.05.2006 vide which the result waspublished states that the inclusion of name of any officer inthe selected list does not confer him to claim promotion onany particular date. However, the applicant had submittedhis request for deletion of his name declining thepromotionandthesamewasacceptedvidethecommunication dated 02.08.2006. It has also to be clearlyunderstoodthattherearenorulesregardingthewithdrawal of application and in absence of the same theadvice of the DOP&T as quoted in the impugned orderdated16.05.2011isthattheGovernmentemployeerefusing such promotion will have to withdraw the samewithin period of 90 days that too prior to filling up thevacancy or till the next vacancy arises, which is later. Inabsence of any clear reason in this matter, this adviceremains binding. The analogy extended to the withdrawalof resignation as it has rightly pointed out in the impugnedorder is misplaced as the period of 90 days had alreadyelapsed. In any case, it is our considered opinion thatwhere relief is being sought within legal right structure this

will not hold good. Unless, there were two specificprovisions relating to that, once the applicant has declinedto avail of the promotions and the same has been accepted,his rights to recall the same stands extinguished upto thedate of acceptance i.e. 2.08.2006 and there are no rulesunder which the same could be revived. This Tribunal isstill to be distinguished from the Hon’ble High Court andthe Hon’ble Supreme Court. Since it is court of lawwhose duty is to decide within the four structure of law andis not court of equity, therefore, it lacks jurisdiction. We,further, fully endorse the stand of the learned counsel forthe respondents that allowing such cases would open thePandora box and numerous such requests that had beenmade in the past would become alive. This Tribunal wouldhave without any hesitation ruled in favour of the applicanthad his plea would have been in the right structure.

3.It is contended that the respondents’ action in refusing to givethe offer of appointment despite the petitioner’s resiling from hisrejection of promotion on 18.12.2006, is arbitrary. Learned counselcontended that none of the rejection letters furnished to him suppliedany reasons and, in these circumstances, the mere submission that thepost was subsequently filled, ought not to have weighed with theCAT. It is also submitted that besides, the guidelines noticed by theCAT were framed in 2006 itself.

4.This Court has carefully considered the submissions. Regardlessof whether the DOPT circular existed or not – an issue sought to beraised by the petitioner, the fact remains that in this case the refusalwas accepted by the respondents on 02.08.2006. This paved the wayfor them to take further steps to fill the vacancy which occurred onaccount of the refusal. This Court was informed by the petitioner’s

counsel that the very same vacancy, along with another vacancyarising on account of another selected candidate refusing promotion,were subsequently notified and limited departmental test wasconducted. This resulted in filling-up of the posts in 2009.

5.Having regard to these facts, the petitioner’s action inapproaching the CAT, as late as in 2012 itself ought to have impelledthe CAT to reject the application. We emphasize this aspect because itis not only the delay which is striking to this Court - on the face of therecord, but also the fact of supervening events which remainedunchallenged by the petitioner - in effect non-suiting his casealtogether. Besides the respondents’ approach, confirmed by the CAT,is in conformity with sound administrative practice because if suchrequests are to be accepted after certain point of time, the filling upof vacancies and cadre management would remain in state of flux, toput it mildly, and ultimately it would result in chaos which cannot butaffect efficient public administration.

6.For the above reasons, this Court is of the opinion that there isno infirmity in the impugned order of the CAT. The writ petition isaccordingly dismissed along with the pending applications.

S. RAVINDRA BHAT(JUDGE)

AUGUST 26, 2014/ajk

VIPIN SANGHI(JUDGE)