W.P.(C)/7337/2013 of CHIEF SECRETARY, GOVT. OF NCT OF DELHI & ANR Vs NARENDER KUMAR GUPTA

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 10.10.2014

Pronounced on: 03.11.2014

+W.P.(C) 7337/2013, C.M. NO.15773/2013THE CHIEF SECRETARY, GNCTD AND ANR.

..... Petitioners

Through: Ms. Ruchi Sindhwani, Addl. StandingCounsel, GNCTD with Ms. Meghna Bhavana,Advocate.

Versus

SH. NARENDER KUMAR GUPTA..... RespondentThrough: Sh. D.R. Gupta, Advocate.

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

MR. JUSTICE S. RAVINDRA BHAT

1.The petitioners in these proceedings under Article 226 of theConstitution, challenges an order dated 5.4.2013, of the CentralAdministrative Tribunal (hereafter “CAT”) in O.A. No. 3560/2012.The CAT directed the petitioner (hereafter “GNCTD”) to consider thecase of the Respondent (“applicant”) for promotion as Grade IIIemployee w.e.f. 9.5.1988 without insisting upon the condition ofqualifying through typing test.

2.The brief facts are that in 1977, the Applicant was appointed asa Grade IV employee (DASS) on temporary basis, via directrecruitment. By an order dated 12.10.1995, he was placed undersuspension, pending an investigation by the CBI. In 2002, the CBIfiled closure report, and the proceedings against the Applicant weredropped by the Tis Hazari Special court. Consequently, on 4.6.2003,

the suspension order dated 12.10.1995, was revoked. On 13.4.2005,the Applicant was granted an exemption from passing requiredtyping test, because he had turned 45, w.e.f25.11.1997. This wasdone vide Services Branch-III order. In the meantime, theApplicant’s junior, one Ajit Singh Kataria, had been promoted toGrade III on regular basis, w.e.f. 9.5.1988. Therefore, on 22.3.2011,the Applicant filed O.A. No. 927/2011 before the CAT, seekingpromotion at par with his junior, as well as the benefit of financialupgradation in terms of the ACP scheme w.e.f. 28.6.2000, and thetreatment of suspension period as spent on duty with full pay andallowances. On 29.9.2011, the CAT disposed off the petition, directingthe Petitioner to ensure that all statutory obligations were adhered to,and to settle the claims of the Applicant in accordance with the rules.

3.Accordingly, on 17.2.2012, the GNCTD issued an order statingthat the Applicant’s suspension period would be treated as spent onduty (with consequential benefits), and on 29.3.2012, it promoted himto the post of Grade III (DASS) w.e.f. 27.5.1998. The Applicantrepresented against this, arguing that the Grade III promotion shouldtake effect from 9.5.1988, and not 27.5.1998. On 26.2.2012, theGNCTD rejected the applicant’s representation.Aggrieved by this,the applicant preferred O.A. No. 3560/2012, before the CAT. TheGNCTD’s argument was that the applicant’s junior was promoted toGrade III w.e.f. 1988, because he had qualified through the typing test.On the other hand, the applicant argued that the Recruitment Rules didnot provide for any such requirement for promotion to Grade III, andin fact, the Government of India’s Office Memorandum, dated14.9.1995, expressly stated that such requirement ought to be

prescribed in the recruitment rules. According to that Memorandum, itwas stated:

“It is clarified that [LDCs] can be considered for promotiononly after they have passed the Typing Test or grantedexemption in accordance from the prescribed procedurefrom doing so and any such promotion will have prospectiveeffect. If the Recruitment Rules for the post of UDC does notcontain such provision, necessary action may be taken toamend the Recruitment Rules to incorporate suitableprovision in this regard.

4.On 5.4.2013, the CAT disposed off the O.A., directing theGNCTD “to assess the suitability of the applicant for his promotion asgrade III (DASS) without insisting upon the condition of qualifying thetyping test by him.” It accepted the applicant’s argument, holding that:

“In the present case, it is not so that the method ofrecruitment to Grade III (DASS) was ever amended by therespondents before 1988 to provide for requirement ofqualifying typing test before promotion to said posts…. itis stare decisis that the administrative instructions issued bythe department cannot have overriding effect over statutoryrules. Once it was not so provided in the RRs that only suchgrade IV (Dass) who had qualified the typing test wereeliigible for promotion to Grade III (DASS), applicant couldnot be denied consideration on this ground.”

5.TheCATfurtherheldthat,inanyevent,theOfficeMemorandum was prospective in nature, and applied only post-1995.Consequently, it could not apply to promotion that was w.e.f. 1988.6.Aggrieved by the order of the CAT, the GNCTD hasapproached this Court. The key question before the Court is whether itwas illegal for the GNCTD to insist on qualification through the

typing test as precondition for promotion to Grade III.

7.The GNCTD has argued that the application before CAT wasbarred due to limitation, because he approached it highly belatedly.This Court does not find merit in that submission. As the CATcorrectly pointed out, the applicant’s name was not considered forpromotion in due course, because of the non-availability of servicerecords. These particulars were obtained through series of lettersbetween 2006 and 2011. Furthermore, following the decision of thetribunal in O.A. No. 927/2011, the GNCTDs – in 2012 – set up areview DPC committee, which considered the case of the applicant forpromotion to Grade-III (DASS), and recommended promotion w.e.f.1998. It was after the applicant’s representation against this decisionhad been rejected, that he approached the CAT in O.A. No.3560/2012. Therefore, the claim of limitation is ill-founded, and theCAT had to proceed to consider the matter on merits.

8.This Court notes that the DASS Rules of 1967, stipulates thatfor appointment to the post of Grade-IV (DASS), candidate mustqualify through typing test (in English or Hindi) at the prescribedspeed, unless exempted by the Chief Secretary. Subsequently,promotion to Grade III will be on the basis of three years of regularservice in the grade, on the basis of seniority-cum-merit.Theapplicant was appointed in 1977 on temporary basis, and he had notfulfilled the typing test qualification under the DASS Rules. Therelevant exemption was accorded to him on 13.4.2005, on havingattained the age of 45 years, by the Services Branch-III, w.e.f. 1997.

9.The fact that the applicant was appointed as Grade-IVemployee, without having qualified through the typing test, as

specified in the DASS Rules, and that too on temporary basis, wouldimply, in this Court’s opinion, that he had no antecedent right to beconsidered for promotion to Grade-III. Rule 6 of the DASS Rulesmakes it clear that the promotion must be based on regular service, aswell as seniority-cum-merit. Given that qualification through typingtest is mandatory requirement for regularized appointment in Grade-IV, and given that the exemption accorded to the Applicant was w.e.f.1997, this Court holds insubstantial the applicant’s contention that hehad right to be considered for promotion w.e.f. 1988, because hisjunior in the grade had been awarded promotion from that date. Therecord makes it clear that his junior had passed the required typingtest. There is, therefore, tangible difference between the twosituations.10.The occasion of the applicant’s junior – or juniors – beingpromoted out of turn, in itself would not create right to be consideredfor promotion on part of the applicant. At that relevant time, theapplicantwasfacinginquiryandinvestigationincriminalproceedings;hisnonconsiderationcouldnotbesaidtobeunreasonable. Furthermore, the applicant does not say that his junior –considered and given promotion, did not qualify in the typing test.Therefore, such incumbent would - unless the contrary wereestablished - be assumed to have cleared the typing test, and have heldthe feeder post as “regular” employee. It is apparent, therefore, thatthe applicant’s submission rests upon conception of negativeequality, which has consistently been rejected by the courts. Forinstance, it was held by the Supreme Court in State of Bihar vsKameshwar Prasad Singh, (2000) 9 SCC 94 as follows:

“The concept of equality as envisaged under Article 14 ofthe Constitution is positive concept which cannot beenforced in negative manner. When any authority isshown to have committed any illegality or irregularity infavour of any individual or group of individuals othercannot claim the same illegality or irregularity on ground ofdenial thereof to them. Similarly wrong judgment passed infavour of one individual does not entitle others to claimsimilar benefits. “

11.Similarly, in Fuljit Kaur vs State of Punjab (C.A. No. 5292 of2004), the Supreme Court observed:

“[Equality] cannot be claimed in illegality and therefore,cannot be enforced by citizen or court in negativemanner. If an illegality and irregularity has been committedin favour of an individual or group of individuals or awrong order has been passed by Judicial Forum, otherscannot invoke the jurisdiction of the higher or superiorcourt for repeating or multiplying the same irregularity orillegalityorforpassingwrongorder.Awrongorder/decision in favour of any particular party does notentitle any other party to claim the benefits on the basis ofthe wrong decision. Even otherwise Art.14 cannot bestretched too far otherwise it would make function of theadministration impossible. [vide Coromandel FertilizersLtd. Vs. Union of India & Ors. AIR 1984 SC 1772; PanchiDevi Vs. State of Rajasthan & Ors. (2009) 2 SCC 589; andShanti Sports Club & Anr. Vs. Union of India & Ors. (2009)15 SCC 705]… Thus, even if some other similarly situatedpersons have been granted some benefit inadvertently or bymistake, such order does not confer any legal right on thepetitionertogetthesamerelief.(VideChandigarhAdministration & Anr Vs. Jagjit Singh & Anr., AIR 1995 SC705; Smt Sneh Prabha Vs. State of U.P. & Ors., AIR 1996SC 540; Jalandhar Improvement Trust Vs. Sampuran Singh,AIR 1999 SC 1347; State of Bihar & Ors. Vs. KameshwarPrasad Singh & Anr., AIR 2000 SC 2306; Union of India &

Ors. Vs. Rakesh Kumar, AIR 2001 SC 1877; Yogesh Kumar& Ors. Vs. Government of NCT Delhi & Ors., AIR 2003 SC1241; Union of India & Anr. Vs. International TradingCompany & Anr., AIR 2003 SC 3983; M/s Anand ButtonLtd. Vs. State of Haryana & Ors., AIR 2005 SC 565; K.K.Bhalla Vs. State of M.P. & Ors., AIR 2006 SC 898; andMaharaj Krishan Bhatt & Anr. Vs. State of Jammu &Kashmir & Ors., (2008) 9 SCC 24).”

12.Therefore,whetherornottheapplicantisentitledtoconsideration for promotion without the requirement of qualifyingthrough typing test must be examined on its own merits. As statedabove, and as the GNCTD has clarified, person appointed as GradeIV (DASS) is treated as regular only after qualifying through thetyping test; in the intervening period, he is not allowed increments,draws pay at the minimum, and, therefore, cannot be in the zone ofconsideration for promotion to Grade-III. This argument has not beenconsidered by the CAT.

13.The Court notes that it is well-established principle of law thatthe scope of judicial interference with promotion decisions is highlycircumscribed,andislimitedtocasesofmalafidesorofunreasonableness. For instance, in Badrinath vs State of Tamil Nadu,(2000) 8 SCC 395, the Supreme Court held that judicial interferencewith DPC decision is justified only when it is mala fide or based oninsignificant/irrelevant/inadmissiblematerial,oronethatnoreasonable person could come to. Given the fact that the typing testwas an essential prerequisite to employment in Grade IV (DASS)category, as per the recruitment rules, this Court feels that by invokingit as necessary for promotion to Grade III, the GNCTD acted wellwithinthestatutoryframework,anditsconductwasneither

unreasonable, nor based on irrelevant material.

14.It is an equally well-established principle that in cases of aseniority-cum-merit requirement for promotion, the promotions are tobe made only after assessing the minimum necessary merit for suchpromotion, and that the benchmark be bona fide and reasonable, andin those circumstances, the benchmark would not be open tochallenge, being matter of policy (see, e.g., Rajendra KumarSrivastava vs Samyut Kshetriya Gramin Bank, (2010) 1 SCC 335;Rupa Rani Rakshit vs Jharkhand Gramin Bank, (2010) 1 SCC 345);Balbir Singh Bedi vs State of Punjab, (2013) 11 SCC 746). Onceagain, in light of the fact that qualifying through the typing test was –according to the recruitment rules – an essential requirement forGrade-IV (DASS) employment, we see nothing arbitrary or mala fidein the GNCTDs’ decision in the present case.The Supreme Courtpertinently stated in R. Prabha Devi v Govt of India AIR 1988 SC902 that eligibility conditions cannot be overridden:

“When qualifications for appointment to post in aparticular cadre are prescribed, the same have to besatisfiedbeforeapersoncanbeconsideredforappointment. Seniority in particular cadre does not entitlea public servant for promotion to higher post unless hefulfils the eligibility condition prescribed by the relevantrules. person must be eligible for promotion havingregard to the qualifications prescribed for the post beforehe can be considered for promotion. Seniority will berelevant only amongst persons eligible. Seniority cannot besubstituted for eligibility nor it can over-ride it in the matterof promotion…”

15.The Office Memorandum of 1995 was of clarificatory nature,and that in any event, cannot amend or change the relevant

Recruitment Rules. This court’s finding is based on reading of therelevant recruitment rules, and the nature of the rights that it vested inemployees in the position of the Applicant. Furthermore, the specificpart of the Central Government’s Memorandum that the GNCTDrelies upon is complementary to the recruitment rules, and not incontravention of them. Insofar as it requires that the case forpromotion can be only be considered by the next DPC, in the ordinarycourse of things, after the grant of exemption (from qualification in thetypingtest),itmerelyprescribestheproceduredeterminingpromotions in the case of exemptions. In this case, the applicant’sexemption – granted on 2005 – was w.e.f. 1997. The next DPC – after1997 – was in 1998. Consequently, the GNCTD’s promotion order,being w.e.f. 27.5.1998, does not suffer from any infirmity, or violationof the recruitment rules.

16.For the above reasons, the writ petition has to succeed;consequently the impugned order of the CAT, dated 5.4.2013, in O.A.No. 3560/2012, is set aside. The writ petition is allowed. No costs.

S. RAVINDRA BHAT(JUDGE)

NOVEMBER 3, 2014

VIPIN SANGHI(JUDGE)