Atul Kumar Sharma v. High Court of Delhi Registrar General & Anr.

11. Thereafter, two writ petitions were filed – one by the Stenographer cadre and the other by the Assistant cadre – challenging the Committee report dated 11.05.2000, that was approved by the Hon’ble Chief Justice by the order dated 08.09.2000.

12. The JTs requested for implementation of the judgement dated 16.10.1998 in Atul Kumar-I and the order dated 08.09.2000, approving the report dated 11.05.2000. However, this request was rejected by the Chief Justice of this Court. In the meantime, the Registry of this Court prepared a note setting out the difficulties in accepting the recommendations of the Committee made on 11.05.2000, which were accepted by the Chief Justice on 08.09.2000. In view of the said note, the Chief Justice referred the matter once again to another Committee. The said Committee made a recommendation dated 08.04.2002, inter alia, recommending as under: “……Those who are promoted on the basis of 1988 amendment and the promotions were made subject to the outcome of the writ petition No.1218/89, may be reverted at least to the extent of 50%, by applying the pre 1988 rules. Consequently, on availability of 50% posts, the same be filled on the basis of written test and interview for which Junior Translators would also be eligible.”

13. Aggrieved by the rejection of their request, the JTs filed an application (being CM No. 8280 of 2002) in the disposed of writ petition of 1989 seeking implementation of the report dated 08.09.2000 for the promotion of the seven JTs, who had qualified for the position of AOJs/CM. By an order dated 12.08.2002, this Court dismissed the aforesaid application, observing that relief cannot be granted by moving a miscellaneous application in a disposed of writ petition. The concerned JTs proceeded to file a Special Leave Petition (being SLP(C) No.17642-17643 of 2002), assailing the said order. On 13.01.2003, the Supreme Court remanded the matter to this Court.

14. Thereafter, the JTs approached this Court by filing another application (being CM No. 5340-41 of 2003) for revival of the previous application in the disposed of writ petition of 1989. However, this Court rejected this application as well with liberty to file a substantive writ petition.

15. Consequently, persons originally belonging to the JT cadre proceeded to file a writ petition [being WP(C) Nos.4077-84 of 2004]. The petitioners (including the petitioner in the present petition), inter alia, sought promotion, which, according to them, they were legitimately entitled to in terms of Atul Kumar-I. In addition, they also sought consequential promotions to the promotional posts, which they would have been entitled to if they had secured the promotion to a post in the Assistant cadre on implementation of the judgment in Atul Kumar-I.

16. By a judgement dated 23.10.2009 (hereafter ‘Atul Kumar-II[2] ’), this Court allowed the said writ petition. The operative part of the said order reads as under: WP(C) 4077-84 of 2004 captioned Atul Kumar & Ors. Vs The Hon’ble High Court of Delhi decided on 23.10.2009. “40. The following relevant facts are to be, therefore kept in mind, in view of the above discussion: (1) 81 vacancies having been filled to the SJA cadre, during 1988-2000, of which 40 posts ought to have been filled through departmental exams; (2) A total of 115 vacancies being filled through application of seniority cum suitability criteria, and 94 through departmental exams (ignoring the correctness of promotions given in 2004, to 20 candidates, who had competed in the year 2000, and in the absence of any provision for a waiting list- an irregularity serious in itself, but not meriting an adverse order, as that is not the subject matter of this petition), thus implying that at least 20 vacancies should have fallen to the share of the 50% departmental exam quota; (3) All the petitioners, concededly qualified in the departmental test for promotion to the higher cadre of Senior Translator, long back, between 1987 and 1996; (4) The petitioners have put in long years of service, and most of them being concededly senior to those in equivalent grades, in the combined seniority list.

41. Today, only Junior Translators (most of them having been subsequently promoted, on later dates, as Senior Translators, and some, to higher posts of AOJ/CM) are before the Court. In view of the above facts, the Court is of opinion that there should be a review in respect of at least 20% of the posts that were filled up during 1988- 2000 (i.e., of 81 vacancies filled up during that time). Although a strict implementation of the judgment would mean review in respect of 50% of the posts, or 40 such promotions (as recommended by the later committee of 2002), yet since only the Junior Translator’s cadre is seeking this review, the court is of the opinion that ends of justice would be satisfied if 20% of those vacancies are filled (or treated as filled, as the case may be) in the manner indicated by this judgment. Therefore, the Court is of opinion that every fifth slot should be adjusted against the 50% departmental exam quota. These vacancies may be filled, or treated as filled, in the following manner: (1) Firstly, from the cadre of Junior Translators, according to their inter-se seniority, subject to the individual concerned possessing the required 5 year experience, stipulated in the rules (in the relevant prescribed grade)- without their having to qualify in any further test. (2)After accommodating the junior translator’s cadre, the balance vacancies – which would be about eight, shall be filled through a special review departmental test, where those entitled to be considered, and eligible, for the purpose, during the relevant period, i.e., 1988-2000 alone shall be permitted to compete. Those successful shall be accommodated against the last 8 slots. (3) The promotions by following the above procedure, shall be notional; the incumbents shall not be entitled to arrears of pay, but shall be entitled only to consequential fixation/fitment in the grade.

42. While giving effect to the above directions, the respondents shall endeavor that there are no reversions. The incumbent SJAs’ appointment shall be notionally pushed down, to later dates, if there is any need to revert those promoted the basis of seniority-cumsuitability, in the cadre of Junior Assistants/UDCs or other cadres promoted as SJA, in excess of the 50% quota. Also, there shall be no recovery of pay or allowances made to them. In case any such SJAs have been promoted on selection basis, every endeavor shall be made that they do not face reversion and instead, their date(s) of promotion are postponed. In case of undue hardship, the Registry shall make appropriate orders, by seeking recourse to the establishment’s residuary powers under the Rules.

43. The second limb of the problem –which is also a claim made by the petitioners is their promotion to the post of AOJ/CM. Although almost all of them have now been promoted to that cadre, it cannot be doubted that the decade long hiatus or deadlock regarding promotions to SJA and implementation of Atul Kumar-I resulted in the postponement of consideration of their claims. Crucially, it is a matter of record that the petitioners were permitted to participate in the selection process for promotion to AOJ/CM on 09.09.2000 (in the case of two of them) and, on 21.08.2001, in the case of the others. It is a matter of record also, that all, save petitioner no.6 were declared successful, in the written test, and were called for interview, on 19.09.2001. However, they were not interviewed, and the others – including those from the SJA cadre, were appointed against the eight vacancies. The first respondent does not explain this aspect. That the petitioners were later promoted, as AOJ/CM is no explanation; they were given what was due to them.

44. The respondents’ argument that the petitioners are claiming an untenable relief, as without their promotion to SJA, and essential five years’ service, they cannot be considered for further promotion seems facially to accord with the rule position. However, this Court is now called upon to rule in respect of a situation where the authority, at five different points in time, did not follow the rules; at least in two of those instances, there really was no excuse for not holding a departmental test for promotion to the SJA cadre. Pertinently, in relation to the cadre of AOJ/CM, the petitioners were successful in seeking orders – right up to the Supreme Court, permitting their appearance in the written test; the respondents even held a supplementary test to enable their participation. Yet, inexplicably, they were not interviewed. The Court is duty bound to restitute their “lost opportunity” as their subsequent promotion cannot but act to their disadvantage vis-à-vis those who were promoted, in time, and who had participated in the said promotional process. In this context, it would be apt to quote the observations in Rajoria (supra): “The notional promotion was given to Krishnamoorti to right the wrong that had been done to him by his supersession on 22-2-1995. If Krishnamoorti is denied the right to be considered for promotion to the post of Director General on the basis of such notional promotion, particularly when the relevant provisions so provide, it would result in perpetuating the wrong done to him. That is exactly what the High Court has done.”

45. In view of the above, the respondents are hereby directed to review the petitioners’ promotions to the cadre of AOJs/CMs and reconsider the issue, on each of the previous dates, when the DPCs were held prior to their actual promotions. It is clarified that this direction is confined to reviewing the petitioners’ promotional dates, since they have already been promoted, and the exercise will be limited to considering their cases, along with those who were promoted on those concerned dates. An endeavour shall be made to see that no reversions follow, and that if anyone in position is deemed not up to the mark, his or her promotion shall be postponed to a later date, and such promotion shall be accommodated against a later vacancy.”

17. There is no dispute that the direction to grant notional promotion to the persons holding the post of SJA was implemented by the respondents and all Judicial Assistants were promoted to the post of SJA on a notional basis without financial benefits. The petitioner was also notionally promoted as SJA on 13.05.1994. Admittedly, the petitioner accepted the notional promotion with effect from 13.05.1994. Further, he consented to reckon the eligibility criterion of five years of service in the SJA post for promotion to the post of AOJ/CM, from 13.05.1994, that is, his date of notional promotion.

18. Aggrieved by the decision in Atul Kumar-II, the other persons in the cadre of AOJ/CM, who were promoted to that cadre from posts other than Judicial Assistant, that is, Senior Personal Assistant, Court Officers and SAS Accountants, filed an application (being CM No.22133 of 2010) in the disposed of writ petition [W.P.(C) No.4077- 84 of 2004 – Atul Kumar-II] complaining that the decision in Atul Kumar-II had affected their seniority to higher promotional posts of Kumar-II, the Court was concerned with restoring the rights of JTs but, in the process, could not adversely affect the seniority of AOJs / CMs drawn from other cadres without hearing them. The DHC also filed applications (being CM Nos.10856 of 2011 and 10857 of 2011) in W.P.(C) No.4077-84/2004, seeking modifications of the directions contained in Atul Kumar-II and in the order dated 06.05.2011, whereby this Court had allowed the application filed by one, Mr. Anil Jain and Ms. Uma Sharma [being CM No.1533 of 2011]. The said application was disposed of by a judgment dated 01.06.2012 with certain directions. The operative part of the said judgment is set out below:

19. The appeals preferred before the Supreme Court were dismissed by an order dated 15.12.2014. Petitions [Civil Appeals No.5838 of 2012, 5839 of 2012 and 11197 of 2014] seeking review of the said order were also dismissed by an order dated 17.03.2015.

20. The petitioner and three other persons filed another application (being CM No.12236 of 2015) in W.P.(C) No.4077-84 of 2004 seeking various reliefs including a direction to the respondents to promote the writ petitioners in terms of the seniority list prepared by the respondents on the basis that the petitioners in the said case, including the petitioner herein, were eligible for being considered for promotion to the post of AOJ/CM at the DPC held on 03.08.1999.

21. By an order dated 16.10.2015, this Court allowed two of the reliefs prayed for, that is, Prayer nos.

(ii) and (iii), under the said application. Thereafter, these were implemented by the DHC. The matter, in terms of the remaining prayers in the said application, was adjourned. Prayer nos.

(ii) and (iii) are set out below: “ii. Direct the Respondent No.1 to allow the criteria for awarding interview marks to the writ Petitioners strictly in terms of Paragraph 28(ii), (iii) and (iv) of the Judgement dated 01.06.2012; iii. Direct the Respondent No.1 to grant financial benefits to the Petitioners in terms of its own office order No.696/Esst/E- IV/DHC dated 05.10.2011 from the date of the judgements i.e.- 23.10.2009;”

22. On 28.04.2016, this Court disposed of the application CM No.12236 of 2015, allowing the JTs to seek any other relief to their surviving grievances in appropriate substantive proceedings, in accordance with law.

23. In the aforesaid background, the petitioner has filed the present petition, inter alia, impugning the revised placement list circulated by the respondents by a notice dated 22.12.2015. The petitioner claims that in the rejoinder affidavit filed by the DHC before the Supreme Court in Civil Appeal No.5838 of 2012, it had placed a draft seniority list, which was prepared in terms of the directions issued in Atul Kumar-II. The petitioner claims that he, along with similarly placed persons, had also made a representation requesting that the seniority list (which was prepared by the respondents) be implemented.

24. The petitioner also claims financial benefits, including arrears of pay, for the post at which he actually worked in compliance with the office order. However, Ms. Jyoti Sharma, learned counsel appearing on behalf of the petitioner, did not press for the said prayer and confined the relief in the present petition to recasting of the seniority list by considering the petitioner’s notional promotion to AOJ/CM as on 03.08.1999 (being the date of the first DPC held after the petitioner had completed five years of service with effect from the date of notional promotion as SJA on 13.05.1994).

25. There is no dispute that in terms of Atul Kumar-II, the respondents were required to review the promotion of the petitioner. There is also no dispute that the petitioner has also accepted his notional appointment to the post of SJA with effect from 13.05.1994. In the joint representation dated 04.06.2012, the petitioner had stated as under: “It is most humbly submitted that as regard promotion of the applicants as 'SJA' with effect from 13.05.1994 is concerned, the same has already been effected to by the administration in terms of paragraph 41 of judgment dated 23.10.2009. Since none of the parties, including the applicants, have any grievance as far as date of promotion as 'SJA' w.e.f. 13.05.1994 is concerned, the first part of the judgment dated 23.10.2009 relating to promotion of the applicants as 'SJA' is over.”

26. The learned counsel appearing for the petitioner also does not seek a review of the date of the petitioner’s notional promotion to the post of SJA.

27. Thus, the principal controversy in the present petition is in a narrow compass. According to the petitioner, notwithstanding that his notional promotion to the post of SJA was on 13.05.1994, in terms of Atul Kumar-I and Atul Kumar-II, he is entitled to be considered eligible for the promotion to the post of AOJ/CM after 08.03.1992. The petitioner was appointed as a Translator on 08.03.1982 and claims that he would be eligible for being appointed as a SJA on completion of five years of service, that is, on 08.03.1987. The first sitting of the DPC, after 08.03.1987, was held on 28.08.1990. The petitioner, thus, claims that he would be entitled to be promoted to the post of SJA with effect from the said date.

28. The petitioner further claims that he would be eligible for being appointed as AOJ/CM on 08.03.1992 and therefore, was eligible for being considered for promotion at the first DPC held thereafter, that is, on 31.08.1992.

29. We are unable to accept the said contention. The promotion to the post of SJA is not automatic. The petitioner was required to clear the departmental exam and the interview. The petitioner and other persons from the cadre of JT were deprived of their avenues for promotion to the cadre of Assistants by virtue of amendment to the Rules that came into effect from 16.03.1988. In the meantime, certain vacancies were filled up by persons from other cadres. In Atul Kumar- II, the Court found that during the period of 1988 to 2000, eighty-one vacancies had been filled up, of which forty posts ought to have been through departmental exams. Twenty candidates were granted promotion in the year 2004, who had competed in the year 2000. Thus, the Court found that at least twenty vacancies should have fallen to the share of the 50% departmental exam quota. The petitioners in Atul Kumar-II had qualified for such examinations between the period of 1987 and 1996. The Court observed that although a strict implementation of the judgment would mean a review in respect of 50% of the posts for forty promotions, as recommended by the Committee of 2002; but since only the JT cadre was seeking a review, it would meet the ends of justice if 20% of the vacancies are filled up in the manner as indicated in the said judgment. Accordingly, the Court held that every fifth slot should be adjusted against the 50% departmental quota first from the cadre of JTs, according to their inter se seniority subject to the individual possessing the requisite five years experiences, as stipulated in the Rules.

30. This direction was complied with. The petitioner was, thus, promoted to the post of SJA notionally on 13.05.1994. As stated above, the petitioner has also accepted the date of his notional appointment to the post of SJA.

31. The petitioner was required to serve for a period of at least five years for being eligible to be considered for the post of AOJ/CM. The petitioner completed the said five years on 12.05.1999. The first DPC was held thereafter on 03.08.1999. Thus, the key question is whether the petitioner was entitled to be considered for promotion at the said DPC.

32. Before, proceeding to address the question, it is relevant to mention that the petitioner has filed a chart asserting that he was eligible for promotion to the post of AOJ/CM with effect from 08.03.1992. The same is clearly not tenable. This assumes that the petitioner would be eligible to appear for the post of AOJ after completion of ten years of service, which, in turn, rests on the premise that he would be promoted to the post of SJA immediately on completing five years of service. As stated above, the petitioner was promoted to the post of SJA on a notional basis with effect from 13.05.1994 and therefore, the period of service of five years for being eligible to be considered for promotion to the post of AOJ/CM would necessarily have to be reckoned from that date. The chart furnished by the petitioner claiming eligibility for appointment to the post of AOJ/CM from 08.03.1992 is contrary to the petitioner’s own assertion. As stated above, the petitioner had accepted his promotion with effect from 13.05.1994. The petitioner had also made a representation dated 06.07.2017 seeking promotion to the post of AOJ/CM with effect from 03.08.1999, which was the date of the first DPC held after the petitioner had completed five years of service after his notional promotion to the post of SJA on 13.05.1994. As noted above, it was the petitioner’s case that since, as on 03.08.1999, he had completed five years of service, he ought to have been considered for promotion to the post of AOJ/CM with effect from the said date.

33. The petitioner’s representation was considered by a committee constituted for implementation of the judgment dated 15.12.2014 passed by the Supreme Court in Civil Appeal No.5838-39 of 2012 captioned K.K. Sharma v. High Court of Delhi & Ors. and the judgment in Atul Kumar-II. The said Committee, in its meeting held on 13.03.2018, considered the representation and rejected the same on the ground that the DPC, for promotion to the post of AOJ/CM held on 03.08.1999, was to consider the promotion of those candidates who had taken the AOJ/CM examination in 1998.

34. The process for promotion of employees at the DPC of 03.08.1999 had commenced much earlier. The notification [Notice No. V.A. 11(2)98/Estt.358] inviting applications from eligible candidates fulfilling the requisite criteria of completion of five years of service in the post of SJA and other eligible posts, was issued on 20.11.1998. At the material time, the petitioner had not completed five years of service from the date of his notional promotion to the post of SJA. The last date for submission of application, in terms of the said Notification dated 20.11.1998, was 30.11.1998. The examination was held on 09.01.1999 and 10.01.1999 and the interviews were held on 29.07.1999. The successful candidates were appointed with effect from 03.08.1999 by a Notification dated 05.08.1999.

35. The cut-off date for the said examination was fixed as 30.11.1998 and thus, only those employees, who were eligible on that date, were entitled to appear for the 1998 examination, which was held on 09.01.1999/10.01.1999. Undisputedly, the petitioner was not eligible for promotion to the post of AOJ/CM prior to the cut-off date for the AOJ/CM examination of 1998 as he had not completed five years of service from the date of his promotion (notional) to the post of SJA (that is, from 13.05.1994). He completed his five years of service as SJA on 13.05.1999. Accordingly, he was granted the promotion with effect from the date of the DPC held after 03.08.1999. The relevant extract of the Minutes of the Meeting of the concerned Committee held on 13.03.2018 is set out below: “Mr. Atul Kumar Sharma (Registrar), the then Joint Registrar, has made a representation wherein he has prayed that he be granted promotion to the post of Administrative Officer (J)/Court Master, with effect from 13.08.1999, with consequential promotion in the ladder of hierarchy, with the direction that he would be entitled to financial benefit for the period for which he has actually discharged duties on the post. We have considered the representations made by Mr. Atul Sharma dated 06.07.2017. The office has placed before us the minutes of the meeting of the committee held on 19.03.2015. It is pointed out that similar representations made by Mr. S.N. Arora, Mr. Ajay Kumar Gupta, Mr. Rishi Pal, Mr. Naresh Kumar, Mr. Umesh Kumar Sharma and Mr. Shekhar Chandra claiming promotion as AOJ/CM with effect from 13.08.1999 based on the AOJ/CM examination held in 1999 were considered and rejected by the committee in the said meeting (vide item No.6). The rational for the said rejection is found in the minutes itself being that the cut-off date for the AOJ/CM examination of 1998 was 30.11.1998, and the examination was held on 09/10.01.1999. On neither of these dates, the said representationists had become eligible for the post of AOJ/CM, since they had attained the eligibility of five years regular service in the grade subsequently on 13.05.1999. Thus, merely because the DPC for promotion as AOJ/CM was held on 13.08.1999 by when they had attained the eligibility, the same was not a valid ground to grant them retrospective notional promotion. We also find that while considering C.M. NO. 12236/2015 in W.P.(C) No. 4077/2004, the Court has upheld the entitlement of actual benefits from the date of judgment i.e., 23.10.2009. In view of the same, the prayer of Mr. Atul Sharma cannot be accepted. The claim of Mr. Sharma, to this extent which is based on identical ground is, therefore, recommended to be rejected. Additionally, the registry informs that Mr. Sharma has already preferred a writ petition to pursue his rights.”

36. The petitioner was promoted to the post of AOJ on notional basis on 25.07.2002. The first examination for AOJ/CM after 13.05.1999 (the date on which the petitioner completed five years of service with effect from 13.05.1994 – being the date of his notional promotion to the post of SJA), was held on 09.09.2000 and the supplementary examination was held on 25.08.2001. The petitioner was granted the benefit of the said examination.

37. In view of the above, no further relief can be granted to the petitioner. The petition is dismissed. All pending applications are also dismissed.

VIBHU BAKHRU, J AMIT MAHAJAN, J MARCH 13, 2023 ‘gsr’