Full Text
HIGH COURT OF DELHI
Date of Decision: January 22, 2024
JUDGMENT
(10) DILBAG SINGH..... Petitioner Through: Mr. Tapas Das, Adv.
VERSUS
DIRECTORATE GENERAL BORDER ROADS THROUGH ITS DIRECTOR GENERAL..... Respondent Through: Mrs. Amrita Prakash, CGSC with Mr. Vishal Ashwani Mehta, Advs. CORAM: HON'BLE MR.
JUSTICE V. KAMESWAR RAO HON'BLE MR.
JUSTICE SAURABH BANERJEE
V. KAMESWAR RAO, J. (ORAL)
1. This petition has been filed by the petitioner with the following prayers: “In view of afore-said facts and circumstances, it is most respectfully prayed that this Hon'ble Court may graciously be pleased to:-
(i) Declare the order dated 18/7/2019 passed by respondent as arbitrary and illegal to the extent of not considering the case of petitioner for promotion to the post of AE (Civil) and promoting the juniors as AE (Civil), as the same being against the DOPT OM dated 12/10/1998; and
(ii) Direct the respondent to consider the case of petitioner for promotion to the post of AE (Civil) for the panel year 2018 and if found fit grant him notional promotion with all consequential benefits; and W.P.(C) 11278/2019 Page 2
(iii) Issue such other orders as are deemed fit and proper under the circumstances of the case along with the costs of litigation.”
2. In substance, the challenge is to the order dated July 18, 2019, which has been issued by the respondent / Border Roads Organisation, to the extent that the petitioner‟s case for promotion to the post of Assistant Engineer (Civil) („AE (Civil)‟, for short) was not considered, though, persons junior to him have been promoted as AE (Civil) which according to the petitioner is contrary to the OM dated October 12,
1998.
3. Mr. Tapas Das, learned counsel for the petitioner submits that the petitioner retired from the post of Junior Engineer (Civil) on December 31, 2018. He had completed the eligibility period to the post of AE (Civil) in the year 2014 itself but was not be considered for promotion till the year 2016 due to lack of vacancies in the cadre of AE (Civil). Thereafter, vide order dated November 15, 2016, the Cadre Review of Group B and C employees of the respondent / organisation was carried out wherein the sanctioned strength of AE (Civil) was increased from 230 to 634 and the posts became available in the grade of AE (Civil).
4. He submits that, a special course for promotion which is relevant for being promoted to the post of AE (Civil) was conducted by the respondent only in January 2017. The petitioner passed the course with overall grading as “High Average”. After passing of the said course, the petitioner became eligible for promotion to the post of AE
(Civil) in February 2017.
5. He states that, as per DoP&T OM dated October 12, 1998, the respondent should convene the DPCs at regular annual intervals to draw panels which could be utilised on making promotions against the vacancies occurring during the course of a year. But no DPC was convened for the years 2017 and 2018. He also submits that the said OM with regard to retired employees provides that, it is imperative to identify the correct zone of consideration for relevant years (s) and the names of the retired officials may also be included in the panel(s).
6. His submission is also that, as the petitioner had retired in the year 2018, he made representation to the respondent on August 8, 2019 with a reminder on September 13, 2019, but no satisfactory answer was given to him. He also states that the respondent being at fault for the delay in holding the DPC, it has caused grave prejudice to the petitioner, as he had to retire on the lowest post of Junior Engineer (Civil).
7. The case of the respondent has been summed up in paragraphs 1 to 5 of the counter affidavit, which reads as under:
8. In substance, the stand of the respondent is that, because of the pending litigation, the promotions could not take place. W.P.(C) 11278/2019 Page 6
9. Having noted the respective stand of the parties, we are of the view, that as no Junior to the petitioner has been promoted to the post of AE (Civil) from a back date, the petitioner is not entitled to any relief.
10. Even, the OM on which reliance was placed by the petitioner dated October 12, 1998, would not help the case of the petitioner, in view of clear stipulation, which reads as under:
11. In fact, the position of law is no more res-integra, in view of the judgment of this Court in the case of Union of India v. Renu W.P.(C) 11278/2019 Page 7 Chhabra, W.P.(C) 15793, decided on December 19, 2023 wherein an identical issue arose for consideration and this Court in paragraphs 5 to 7 has held as under: “5. Admittedly, the respondent stood retired on May 31, 2017 and hence was not working in the department for her to be granted the benefit of promotion w.e.f September 6,
2018.
6. We have seen the promotion orders which have been issued for the juniors, the same clearly stipulate that the orders are for vacancy years 2014-15 with seniority. Assuming for a moment, the benefit of seniority is given to the respondent w.e.f 2014-15, but she in any case cannot granted the promotion that too from September 6, 2018, when admittedly she was not working in the department having superannuated on May 31, 2017.
7. The order of the Tribunal is without appreciating the facts in proper perspective. It has not considered as to in what manner the directions given could be implemented when the promotion of the junior was on September 6, 2018 on which date the respondent was not working. The order of the Tribunal is set aside. The writ petition is disposed of. No costs.”
12. Similarly, in Dr. Ramakant Singh v. Union of India through the Secretary and Ors., W.P.(C) 6177/2019, decided on February 13, 2023, this Court in paragraphs 9, 11, 12 and 16 has held as under:
13. In view of the above position of law and, the said judgments are applicable on all fours, the petition being without any merit, is dismissed. No costs.
V. KAMESWAR RAO, J
SAURABH BANERJEE, J JANUARY 22, 2024