Full Text
HIGH COURT OF DELHI
Date of Decision: 11th December, 2024
ASHOK KUMAR SHRIMALI .....Petitioner
Through: Petitioner in person.
Through: Mr. Mukul Singh, CGSC
JUDGEMENT
JYOTI SINGH, J. (ORAL)
JUDGMENT
1. At this stage, learned counsel for Respondent seeks to delete Respondent No.1 from the memo of parties.
2. For the reasons stated in the application, the same is allowed. Respondent No.1 is deleted from the array of parties.
3. Amended memo of parties be filed during the course of the day and subject to the objections being cleared, Registry will take the same on record.
4. Application stands disposed of.
5. This writ petition has been preferred on behalf of the Petitioner for a direction to the Respondents to consider his case for promotion to the post of Senior Advisor in the pay scale of Rs.12000-16500 (pre-revised) against a vacant post w.e.f. 13.09.1997, with all consequential benefits.
6. Factual matrix to the extent necessary is that Petitioner was appointed as Junior Technical Officer, Economic Division in Indian Investment Centre (‘IIC’) on 30.12.1982. In 1995, Petitioner filed CWP 125/1995 before this Court challenging non-grant of promotion to the post of Assistant Advisor from the date an outsider candidate joined IIC, i.e. 20.08.1991. The writ petition was allowed vide judgment dated 22.07.2003 holding that Petitioner was entitled for promotion as Assistant Advisor (Economic) from the date the direct recruit candidate was appointed.
7. In implementation of the judgment, IIC issued order dated 30.10.2003, promoting the Petitioner as Assistant Advisor (Economic) w.e.f. 20.08.1991 in the pay-scale of Rs.10,000-15,200/-. As per the Petitioner, he was entitled to be considered for promotion to the post of Senior Advisor as a consequence of ante-dating his promotion to the post of Assistant Advisor. He, therefore, made several representations between 14.01.2004 to 15.07.2005 and brought forth that four vacancies had arisen on 13.09.1997 in the post of Senior Advisor out of which two officers were promoted and two posts continued to remain vacant. This apart, one more vacancy arose a month later on account of superannuation of Sh. S.S. Chawla. It is further pleaded that Recruitment Rules for the post of Senior Advisor were never finalised and recommendations were made in several notings to consider the case of the Petitioner to the post of Senior Advisor against the vacant posts as per past practice.
8. It is averred in the writ petition that on 27.10.2004, Cabinet decision was taken to wind up IIC and accordingly, a Special Voluntary Retirement Scheme (VRS) was introduced for the employees. Petitioner opted under the VRS on 27.04.2005, but under protest with regard to his retiral benefits and was relieved. Not getting his due promotion from IIC, Petitioner approached this Court for a direction to the Respondents to consider his case for promotion as Senior Advisor, consequent to his promotion as Assistant Advisor dating back to 20.08.1991.
9. Petitioner appears in person and submits that he was entitled for consideration for promotion to the post of Senior Advisor as a result of antedating of his promotion as Assistant Advisor to 20.08.1991, consequent to the judgment dated 22.07.2003, delivered in his favour. He urges that 3 vacancies had arisen in 1997 in the post of Senior Advisor and there was no reason why his case was not considered by IIC. Recruitment Rules (‘RRs’) for the post of Senior Advisor were never finalised in IIC and as per past practice Assistant Advisors were considered for promotion to the post of Senior Advisor directly and this is evident from several notings filed along with the writ petition, wherein favourable recommendations have also been made to consider the case of the Petitioner. It is contended that pay-scales of Assistant Advisor and Advisor were merged in 5th CPC and both came in the pay-scale of Rs.10,000–15,200/- w.e.f. 01.01.1996 and, therefore, the hierarchy from Assistant Advisor to Advisor in the draft RRs had no meaning and in this light it was recommended in the memorandum dated 21.06.2005 that Assistant Advisors can be promoted directly as Senior Advisors.
10. It is also submitted that no doubt, IIC was wound up somewhere in 2006 pursuant to a cabinet decision, but that cannot create an impediment in the promotion of the Petitioner as all liabilities were taken over by Department of Economic Affairs, Ministry of Finance and moreover, Petitioner was entitled and eligible for consideration much before the cabinet decision in 2004.
11. Learned counsel for the Respondents, on the other hand, at the outset submits that the press release note placed on record reflects that a decision was taken by the Cabinet on 27.10.2004 to wind up IIC, albeit learned counsel fairly agrees that he is unsure of the exact date of winding up and closure. The argument is that on account of IIC being wound up, no relief can be claimed by the Petitioner at this stage. On merits, it is contended that draft RRs for the post of Senior Advisor were in existence and were being followed by IIC. The hierarchy of posts as per the RRs is Section Officer to Assistant Advisor, Assistant Advisor to Advisor and Advisor to Senior Advisor and therefore Petitioner cannot claim promotion from Assistant Advisor to Senior Advisor directly from 1997. It is argued that Petitioner was promoted as Assistant Advisor in September, 1997 in the ordinary course. Pursuant to the judgment of this Court his promotion was ante-dated to 20.08.1991, but the Petitioner will have to first earn promotion to the post of Advisor before being eligible for promotion as Senior Advisor and any noting to the contrary cannot aid the Petitioner as that would be contrary to the RRs. It is true that under the 5th CPC pay-scales of Assistant Advisor and Advisor were merged, but there was no consequential amendment in the RRs by IIC and therefore, this merger cannot be of no avail to the Petitioner to claim that he stood automatically promoted to the post of Advisor.
12. It is further argued that Petitioner cannot claim promotion from 1997 despite the existence of vacancies in the said year, since as per the RRs, 8 years’ experience as Assistant Advisor is required for promotion to the post of Advisor and further three years is required as Advisor to be eligible for promotion to the post of Senior Advisor, which clearly the Petitioner does not complete in 1997. An Assistant Advisor can be promoted as Senior Advisor but that is on completion of eleven years, which Petitioner completed much later in 2002. It is strenuously argued that even otherwise, Petitioner cannot agitate the issue of non-promotion as he sought voluntary retirement under the VRS introduced by IIC and upon such acceptance on 27.04.2005, his jural relationship ceased with IIC. Reliance is placed on the judgment of the Supreme Court in Union of India and Another v. Manpreet Singh Poonam and Others, (2022) 6 SCC 105, to assert that having taken Voluntary Retirement, it is not open to an employee to agitate past claims as the employer-employee relationship ceases. Reliance is also placed on paragraph 20 of the said judgment, wherein relying on the judgment of the Supreme Court in Union of India v. K.K. Vadera, 1989 Supp (2) SCC 625, it was held that promotion to a post can only be granted from the date of promotion and not from the date when vacancy arises.
13. Learned counsel further places reliance on the judgement in Ravikumar Dhansukhlal Maheta and Another v. High Court of Gujarat and Others State of Gujarat, 2024 SCC OnLine SC 972, to buttress the legal submission that no Government servant can claim promotion as a matter of right because the Constitution does not prescribe criteria for filling seats in promotional posts.
14. Heard the Petitioner in person and learned counsel for the Respondents.
15. Indisputably, Petitioner was promoted as Assistant Advisor in 1997. However, the writ petition filed by him being CWP 1251/1995 was allowed by this Court vide judgment dated 22.07.2003 and it was directed that Petitioner will be granted promotion from 20.08.1991, i.e., the date when the candidate was appointed under the direct recruitment quota. The judgment was implemented by IIC and an office order was issued on 30.10.2003 ante-dating the promotion of the Petitioner to the post of Assistant Advisor from 20.08.1991. With this relief from the Court, Petitioner started representing for promotion to the post of Senior Advisor.
16. Broadly understood, Petitioner urges that an Assistant Advisor is entitled to be considered to the post of Senior Advisor and not Advisor first against vacancies of 1997 since pay-scales of Assistant Advisor and Advisor were merged under the 5th CPC and as a practice in the past, IIC was promoting Assistant Advisors as Senior Advisors directly and in this context relies on file notings. IIC on the other hand contends that draft RRs were in existence and as per hierarchy of the posts an Assistant Advisor is eligible for promotion as Advisor on completion of 8 years of service. An Advisor is then eligible for promotion as Senior Advisor on completion of another 3 years of service as Advisor. Since the Petitioner did not complete the requisite service in 1997 and was working as Assistant Advisor, he was not considered for the post of Senior Advisor. Assistant Advisor can be considered for the post of Senior Advisor but this is only on completion of 11 years of service, which the Petitioner does not complete in 1997 even with his promotion as Assistant Advisor being ante-dated to 20.08.1991 and his consideration cannot be against the Rules.
17. Petitioner essentially seeks the fruits of his earlier litigation, in which he succeeded. There is no dispute that consequent to the judgment of this Court, Petitioner was granted retrospective promotion from 20.08.1991 as Assistant Advisor. While allowing the writ petition, Court had directed that all consequential benefits will be granted to the Petitioner and therefore, he cannot be denied consideration for promotion to the next post(s) in the hierarchy of the cadre. It is equally undisputed that draft RRs existed and regulated the promotions to different posts in IIC, including posts of Advisor and Senior Advisor. The file notings filed by the Petitioner do indicate recommendations in his favour to consider him for promotion to the post of Senior Advisor but as rightly contended by learned counsel for the Respondents, notings cannot override the draft RRs and the hierarchy in the RRs including the eligibility conditions cannot be overlooked. Perusal of the draft RRs shows that for an Assistant Advisor to be eligible for promotion to the post of Advisor, experience of 8 years is required along with the requisite degree as stipulated therein and for promotion to the post of Senior Advisor, the eligibility condition is the requisite degree and an experience of 3 years as Advisor or 11 years as Assistant Advisor.
18. The argument of the Petitioner that due to merger of the pay-scales of Assistant Advisor and Advisor under the 5th CPC, Petitioner ought to have been considered for promotion as Senior Advisor against the vacancy arising in 1997 cannot be accepted in light of the fact that IIC did not amend the RRs. Hence, going by the draft RRs, Petitioner became entitled for consideration for promotion to the post of Advisor on completion of 8 years from 20.08.1991 and further for the post of Senior Advisor on completion of 3 years of service as Advisor or on completion of 11 years as Assistant Advisor. In either case, Petitioner became eligible prior to the Cabinet decision in 2004 to wind up/close IIC and therefore, this decision cannot impede the consideration of the Petitioner for promotion to the two posts in question. Even otherwise the liabilities and assets of IIC have been taken over by the Department of Economic Affairs, Ministry of Finance and it is this Department which has been contesting this case and filing affidavits and will be responsible for considering the case of the Petitioner for promotion.
19. Coming to the last plank of argument of the Respondents that having taken voluntary retirement under the VRS, Petitioner is estopped from agitating his claim for promotions, in my view, the argument is meritless. There can be no quarrel with the legal proposition that on voluntary retirement, under the Voluntary Retirement Schemes, the jural relationship of employer-employee ceases and past claims cannot be agitated. But this will not come in the way of the Petitioner for two reasons. Firstly, the Petitioner is seeking implementation of a judicial order of this Court holding him entitled to promotion from a retrospective date and directing that all consequential benefits be given to him. Consideration for further promotions on ante-dating his promotion as Assistant Advisor is a consequential benefit arising from the judgment passed in his favour and Petitioner cannot be deprived of the fruits of this litigation. Secondly, Petitioner was throughout representing and agitating his case for promotion to the post of Senior Advisor and his case was being meaningfully considered at various levels and file notings indicate favourable recommendations also. Petitioner never gave up his right to this extent and received the relieving order dated 25.07.2003 under protest. Therefore, Petitioner has made out a case for consideration for promotions to the posts of Advisor and Senior Advisor, subject to availability of vacancies in the given years.
20. Accordingly, this writ petition is allowed directing the Respondents to convene a DPC and consider the case of the Petitioner for promotion to the post of Advisor on completion of 8 years from 20.08.1991 and thereafter to the post of Senior Advisor as per draft RRs. In the event Petitioner is not recommended for promotion to the post of Advisor, de hors this fact, he will be considered for promotion to the post of Senior Advisor on completion of 11 years as Assistant Advisor reckoned from 20.08.1991. Needless to state, if Petitioner is recommended for promotion(s), all consequential benefits will flow to him. The entire exercise will be completed within a period of three months from today.
21. Writ petition stands disposed of in the aforesaid terms.
JYOTI SINGH, J DECEMBER 11, 2024 B.S. Rohella