Full Text
HIGH COURT OF DELHI
RAJESH KUMAR ARYA ...... Petitioner
Through: Mr. Ankur Chhiber, Mr.Himanshu Tiwari, Mr. Anshuman Mehtrotra, Mr. Nikunj Arora & Mr.Arjun
Pawar, Advocates
Through: Ms. Shubhra Parashar, Mr.Pushpender Singh Charak, Mr.Kapil Gaur & Ms.Pinky
Yadav, Advocates SI Virender Prtap Singh Charak
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
JUDGMENT
1. The present petition has been filed by the petitioner seeking quashing of letter dated 15.12.2015 whereby his representation dated 09.10.2015 seeking grant of senior time scale along with 26th batch was rejected. In addition, quashing of orders dated 20.05.2016, 23.11.2016 11:35 and 12.07.2019 respectively is also sought, whereby petitioner’s representations dated 22.03.2016, 10.10.2016 and 06.02.2019 respectively, seeking notional date of appointment, financial benefits and regular promotion to the rank of Deputy Commandant along with his batch mates of 26th Batch, have been rejected.
2. Petitioner has pleaded in the petition that pursuant to an advertisement dated 09.05.2009 for filling up the post of Assistant Commandant in CAPF, petitioner had applied for the same. The petitioner underwent written examination and was declared successful vide result dated 02.06.2010. Thereafter, petitioner underwent PET and Medical on 23.06.2010 and 24.06.2010 respectively. In the result declared on 02.06.2010, petitioner cleared the PET, however, was declared medically unfit on 24.06.2010. The petitioner filed an application for review medical examination and he was permitted to undergo the same on 30.08.2010. However, vide result dated 31.08.2010, petitioner was again declared medically unfit.
3. Being aggrieved, petitioner claims to have got himself examined at All India Institute of Medical Science (AIIMS) and vide report dated 29.06.2010, he was declared fit for the post of AC(DE) in CAPFs.
4. The petitioner filed a petition before this Court [W.P.(C) NO. 1067/2011] praying for re-medical examination and this Court vide order dated 21.02.2011 directed the petitioner to appear before the Medical Superintendent on 08.03.2011 for further review medical examination. The petitioner’s re-medical examination was conducted on 09.03.2011 and in the result declared on 19.04.2011, he was declared medically fit. 11:35
5. According to petitioner, in the interregnum, petitioner’s batch mates (26th Batch) were allocated different forces vide letter dated 07.06.2011 and were issued appointment letter on 17.08.2011 and their basic training commenced from 02.09.2011. However, despite having been declared medically fit, petitioner was not issued appointment letter and therefore, he again approached this Court by filing writ petition [W.P.(C) No. 7544/2011], however, since petitioner’s candidature was cleared by the respondents vide letter dated 17.10.2011 and this fact was brought to the notice of this Court, this Court vide order dated 18.10.2011 disposed of the said petition in view thereof.
6. Thereafter, the competent authority of respondents provisionally selected the petitioner vide letter dated 27.12.2011 and called for document verification on 06.02.2012. The petitioner was issued appointment letter on 28.09.2012 and he joined CISF on 27.10.2012 along with 27th Batch. In the seniority list issued in the year 2014, the petitioner’s seniority was fixed with 26th Batch, however, his date of joining was kept his original date of joining and not notionally fixed w.e.f. 02.09.2011 along with his Batch mates of 26th Batch.
7. Being aggrieved with the seniority list, petitioner made a representation dated 09.10.2015, which was rejected by the respondents vide letter dated 15.12.2015 holding that since the petitioner had joined service on 27.10.2012, he will be eligible for grant of senior time scale on completion of 4 years of service on 27.10.2016.
8. During the course of hearing, learned counsel appearing on behalf of petitioner submitted that the batchmates of the petitioner who 11:35 underwent the CPF's examination of 2009 were granted the benefit of senior time scale w.e.f. 02.09.2015 vide order dated 19.02.2016. Thereafter, another seniority list dated 10.03.2016 was issued by the respondents, wherein petitioner’s seniority was placed correctly.
9. Thereafter, petitioner preferred another representation dated 22.03.2016 seeking notional date of appointment along with 26th Batch, which was rejected by the respondents on 20.05.2016 on the ground that since the petitioner joined services w.e.f. 27.10.2012, he shall be entitled for pay and allowances from the said date only. Thereafter, petitioner’s batch mates of 26th Batch were granted promotions from Assistant Commandant to Deputy Commandant vide letter 07.10.2016 and so, petitioner filed a representation dated 10.10.2016 praying for his regular promotion along with his batch mates of 26th Batch. The said representation of petitioner was rejected by the respondents on the ground that petitioner was short of eligibility service of more than 02 years and, therefore, cannot be considered for promotion to the rank of Deputy Commandant. Being dissatisfied, petitioner made another representation dated 18.11.2017 praying that he may not be possessing the actual service on account of joining late but his regular service has to be counted from the date his juniors had joined. According to petitioner, the said representation has not yet been decided by the respondents. However, petitioner stood promoted to the post of Deputy Commandant vide order dated 16.08.2018.
10. At the time of final hearing, learned counsel appearing on behalf of petitioner submitted that the delay in joining was not due to fault of 11:35 petitioner but due to administrative lapse on the part of CISF and for this, petitioner cannot be made to suffer. Reliance was placed upon decisions dated 28.11.2017 in WP(C) No.8546/2016 titled as Anjan Kumar Mandal Vs. UOI & Ors [2017 SCC OnLine Del 12028]; dated 02.11.2012 in W.P.(C)3827/2012, titled as Naveen Kumar Jha Vs. UOI & Ors.; decision dated 30.7.2014, in W.P.(C) No.4348/2014, titled as Durga Nandan Srivastava Vs. UOI & Ors.; dated 06.02.2018 and W.P.(C) No.6275/2016, titled as M.V. Sheshagiri Vs.Union of India & Ors; to submit that in identical matters, relief has been granted to the petitioners therein.
11. To submit that similarly situated persons should be treated similarly even without approaching the Court, reliance was placed upon decision of Supreme Court in U.P. & Ors. vs. Arvind Kumar Srivastava & Ors, (2015) 1 SCC 347.
12. Reliance was also placed upon decisions in dated 11.02.2015 in WP(C) No. 8080/2013 titled as Jay Pratap Singh Vs. UOI & Ors., dated 04.09.2018 in WP (C) No. 390/2017 titled as J. Durai Murugan Vs. UOI & Ors. & dated 08.01.2019 in WP (C) No. 11765/2016 titled as Dharam Narayan Borana Vs. UOI & Ors. to submit that the issue of grant of seniority from the date of batchmates and to count the said period for further promotion and notional fixation of pay, has already been decided by the Supreme Court.
13. On the other hand, learned counsel appearing on behalf of the respondents submitted that the batch mates of petitioner had joined in the year 2011; whereas petitioner had joined on 27.10.2012 and the benefits 11:35 of pay/ salary and promotion etc. accrue from the date of joining and so, petitioner cannot claim parity with his other batch mates. It was submitted that the basic training of the said batch had started in the month of September, 2011 and since after being declared fit in all respect, the petitioner was allocated in CISF on 27.12.2011, he was given offer of appointment with the next batch.
14. It was submitted that in medical examination and review medical examination petitioner had concealed the factum of suffering from disease, namely, Pulm Kochs, which was pointed out by the Review Medical Board and this was the main reason for rejection of his candidature and so, due to disputes arising out of his medical examination the petitioner could not join along with other batchmates. Thus, he cannot be permitted to put the entire blame on respondents for delay occurred in his joining.
15. It was next submitted that as per Recruitment Rules for the post of Deputy Commandant (Exe) notified in the Gazette of India dated 13.02.2002 when a junior is completing the requisite eligibility service, seniors short of maximum of 02 years' of eligibility service, will also be considered for promotion. Accordingly, though petitioner’s batchmates who were short of only one & half years of eligibility service as per recruitment rules, were promoted to the rank of Deputy Commandant on 01.04.2016. Whereas, the petitioner was promoted to the rank of Deputy Commandant on regular basis on 13.09.2018 vide Notification dated 02.11.2018.
16. Learned counsel for respondents next submitted that the decision 11:35 in Anjan Kumar Mandal (Supra) relied upon by the petitioner, relates to fixation of inter-se seniority; whereas in the present case one vacancy under SC category was released vide notification dated 27.12.2011 issued by the Ministry of Home Affairs to accommodate the petitioner. Similarly, reliance cannot placed upon decision in Durga Nandan Srivastava (Supra) as in the said case was determination of seniority and not about notional date of appointment and its consequential benefits. Also in M V Sheshagiri (supra) respondents had deprived the petitioner from joining the service along with their batch mates who were successful, whereas in the present case the petitioner had wilfully concealed about his disease (Pulm Kochs) and its treatment with antitubercular treatment. Hence, it was submitted that there was no delay on the part of respondents in conducing medical examination, review medical examination and re-medical examination of the petitioner and the delay which has occurred is due to concealment of suffering from disease Pulm Kochs, which is attributable to petitioner only and so, this petition deserves to be dismissed.
17. In rebuttal it was submitted by learned counsel for petitioner that respondents are responsible for delay in conducting character verification of petitioner and so, original seniority of petitioner cannot be permitted to be disturbed. Learned counsel submitted that petitioner is aggrieved of his date of joining fixed by the respondents, due to which he was appointed to the post of Deputy Commandant after much delay than his batchmates of 26th Batch and, therefore, his notional seniority is required to be re-fixed and this petition deserves to be allowed. 11:35
18. The argument advanced by learned counsel representing both the sides were heard at length and the material placed on record as well as decisions cited have been perused by us.
19. The similar issue came up for determination before this Court in Anjan Kumar Mandal (Supra), wherein petitioner working on the post of Assistant Commandant in 42nd Batch in CRPF, had prayed for seniority along with his batchmates of 41st Batch. The petitioner therein after clearing the written examination, Physical Efficiency Test and Medical Examination, was called for interview vide respondents’ letter dated 12.08.2008. Thereafter, vide letter dated 28.04.2009 sent by the respondents, petitioner was informed that his final appointment shall be subject to completion of the verification of his character and antecedents. Petitioner therein had claimed that his batchmates were issued letters of appointment in the month of November, 2009 and were directed to join training on 05.12.2009. Whereas, petitioner’s verification report was received in March, 2010 and he received offer of appointment vide letter dated 02.04.2010 and could join the training on 15.05.2010 with the 42nd Batch. Being aggrieved, he had challenged his fixation of his seniority and this Court held that:-
20. In Shashi Ranjan Kumar Vs. Union of India 2019 SCC OnLine Del 7323, this Court dealt with a case wherein petitioner was an Inspector in the CRPF who had participated in the Staff Selection Commission (SSC) Examination of 2002 and was appointed as Sub- Inspector and had prayed for fixation of his seniority from December, 2003 i.e. the same date as has been of his batch mates in the said examination; this Court while taking note of decision in Naveen Kumar Jha (Supra), Anjan Kumar Mandal (Supra), Durga Nandan Srivastava (Supra), M.V. Sheshagiri (Supra) had observed and held as under:-
21. Even in the present case, after petitioner was declared medically unfit on 24.06.2010 in the PET examination and review medical examination on 30.08.2010, he had got himself examined at AIIMS and vide report dated 29.06.2010, wherein he was declared fit for the post of AC (DE) in CAPFs. There is no doubt that petitioner had to twice knock the doors of this Court, first by filing W.P.(C) No. 1067/2011 praying for re-medical examination and secondly, W.P.(C) No. 7544/2011 praying 11:35 for a direction to respondents to issue him appointment letter subsequent upon his being declared medically fit in re-medical examination conducted on 09.03.2011. Thereafter, he was issued appointment letter on 17.08.2011; his candidature was cleared on 17.10.2011; provisionally selected vide letter dated 27.12.2011; called for verification of documents on 06.02.2012; issued appointment letter on 28.09.2012 and joined CISF on 27.10.2012 along with 27th Batch. No cogent reason has been putforth by the respondents to demonstrate as to when vacancy under the SC category was released vide notification dated 27.12.2011 for appointment of petitioner, as to what had caused the delay in issuing appointment letter to petitioner only on 28.09.2012. Moreover, from the date of petitioner’s re-medical examination on 09.03.2011 till 28.09.2012, there is a huge delay of about 18 months in actual appointment of petitioner to the Force. There is no doubt that the delay has solely been caused for the administrative functioning of the respondents. In our considered opinion, for the lapse on the part of respondents, the petitioner cannot be made to suffer.
22. Accordingly, the present petition is allowed. Respondents are directed to treat petitioner’s appointment on 02.09.2011 instead of 27.10.2012 i.e. the date on which the batch mates of petitioner in the Central Police Force (Assistant Commandant) Examination, 2009 were appointed. Consequently, respondents shall refix petitioner’s seniority & pay from the notional date of his appointment. This Court is informed that petitioner has already been promoted to the post of Deputy Commandant vide order dated 16.08.2018. Accordingly, respondents are directed to re-fix petitioner’s seniority in the rank of Deputy 11:35 Commandant w.e.f. the date his batchmates of 26th Batch were promoted and issue necessary orders in respect thereof within four weeks.
23. With directions as aforesaid, the present petition and pending application are accordingly disposed of.
(SURESH KUMAR KAIT) JUDGE (NEENA BANSAL KRISHNA)
JUDGE MARCH 06, 2023 r 11:35