February, 2017 VIRENDER SINGH Through Ms. Avni Singh, Advocate. v. UNION OF INDIA &ORS.

2. The impugned order has been challenged by Virender Singh, who was respondent in OA No. 3326/2012 and Darshan KumarTanwarand five Others, who were the respondents in OA No. 3623/2011.

3. In Writ Petition (C) No. 3359/2014 which arises fi-om OA No3326/2012 the petitioner and the private respondents were initially appointed at the post ofAssistant Sub-Inspector (Stenographer). The next promotional post of Inspector (Stenographer) had only three posts. This had led to stagnation ofthe Assistant Sub-Inspector (Stenographers) who, even after thirteen years of service, could not be promoted for want of vacancies. In these circumstances, some of the Assistant Sub-Inspector (Stenographers) had filed OA No. 2122/2009 which was decided vide order dated 6"^ April, 2010 directing the authorities, and in particular the Ministry ofHome Affairs, to consider enhancing the cadre strength in the posts/cadre of Inspector (Stenographers).

4. Taking notice of the stagnation, cadre re-structuring exercise was undertaken and notified vide order dated 29^*^ June, 2012 issued under sub sections (1) and (2) of Section 147 of Delhi Police Act, 1978 and had amended the Delhi Police (Promotion and Confirmation) Rules, 1980. The existing cadre strength of 111 in the cadre ofASI (Stenographers) was bifurcated into the posts of ASI (Stenographer) and Sub-Inspector (Stenographer) and reduced to 80. Two posts were in the same grade pay W.P. (C) Nos. 3359/2014 &3996/2014 Page 2of[7] \ of Rs. 4200 in Pay Band-II, and appointment as Sub-Inspector (Stenographer) was considered as elevation and not promotion. By notification dated 29"^ June, 2012 the cadre strength in the post ofInspector (Stenographer) was increased from 3 to 34.

5. Padmender Singh Rawat and four others had filed OA NO. 3326/2012 aggrieved that Virender Singh, Tirath Babu and Pawan Kumar were granted accelerated "promotion" to the cadre of Inspector (Stenographer) as they belonged to the reserve category. The contention in the OA was that the appointment as Inspector (Stenographer) was mere upgradation and it should not be considered as promotion. Hence, concept of "reservation" in promotion would not be applicable.

6. The Tribunal while deciding this OA had also decided another OA No. 3623/2011 preferred by Karan Singh and Rakesh Kumar Singh on the question relating to promotion granted to R.S. Kameshwaran, Makhan Lai, Darshan Kumar Tanwar, Kanta Devi, Rameshwar, Sohan Lai and Babu Ram. This dispute pertains to the Employees Provident Fund Organisation for promotion as Assistants from the posts of Social Security Assistant/Upper Division Clerk/Lower Division Clerk.

7. The Tribunal in the impugned order has exhaustively referred to the decision of the Supreme Court in the case of M. Nagaraj and Others versus Union of India and Others, (2006) 8 SCC 212, Union of India versus V.K. Sirothia, (2008) 9 SCC 283, Bharat Sanchar Nigam Limited versus R. Santhakumari Velusamy and Others, (2011) 9 SCC 510, Union of India versus All India Non SC/ST Telecom Employees Association- Special Civil Appeal No. 7576/1997 decided on 24^^ March, 1999 and other decisions, which dwell on the question of reservation in promotion and holds thatthis was permissible, butthe authorities should first examine whether the reserve category were adequately represented in the W.P. (C) Nos. 3359/2014 &3996/2014 Page 3of[7] promotional posts before such stipulation could be provided in the recruitment rules. The Tribunal has also referred to the difference between "upgradation" and "promotion" as enunciated and explained in different judgments. The Tribunal without reference to the factual matrix ofthe two cases, the Recruitment Rules as amendedand applicable to the Delhi Police Service of Stenographers or to the post of Social Security Assistant/Upper Division Clerk/Lower Division Clerk in the Employees Provident Fund Organisation has gone on to observe and to hold as under:-

W.P. (C) Nos. 3359/2014 &3996/2014 Page 4of[7] Respondents shall also pass appropriate order in implementation ofthe aforesaid directions.

20. The aforesaid directions shall be complied with, within a period of two months from the date of receipt of a copy ofthis order."

8. During the course of hearing before us, learned counsel for the petitioners has submitted that some ofthe issues raised and decided by the Tribunal did not arise from the pleadings in OA No. 3326/2012. It is also p pointed out that the original applicant Karan Singh and Rakesh Kumar Singh had raised new pleas and contentions in the rejoinder filed in OA No. 3623/2011. It is the contention ofthe petitioners that the original applicants, who are the private respondents before us, had never pleaded or submitted that the reservation in promotion was permissible in view of the ratio in M. Nagraj (supra) and other cases. The contention is that the Tribunal in the impugned order has examined and given findings on issues on which there were no complete or full pleadings.

9. The private respondents before us, who were applicants in OA No. j, 3326/2012, submit that the said contentions were not specifically raised in the OA, but did arise for consideration and, therefore, the Tribunal was justified in examining and recording theirfindings. The private respondents also submit that the said contention was raised in the rejoinder in OA NO. 3623/2011filedto the reply filed by the petitioners and the authorities.

10. Be that as it may, we are inclined to pass an order of remand to the Tribunal and while doing so, give liberty to the private respondents, who Oux • were the original applicants, to movej|application for amendment to set forth and bring out the said facts and assertions in the original application. We are inclined to pass the said order as the reasoning given by the Tribunal in paragraphs 18 to 20 quoted above, we find is ambivalent and W.P. (C)Nos. 3359/2014 & 3996/2014 Page 5 of[7] Z) does not directly deal with the issues raised. The earlier portion of the judgment does refer to the decisions on difference between upgradation and promotion as well as on the question of reservation in promotion, but these decisions and their ratio has not been specifically applied with reference to the factual matrix as was prevalent in the case of Delhi Police in the cadre/service of Stenographers and in the cadre/service of Assistants in the Employees Provident Fund Organisation. In the factual matrix relevant to the post/cadre in the two services, the Recruitment Rules, ^ require an in-depth and detailed examination. This exercise and scrutiny must be undertaken at the first instance by the Tribunal. Lastly, we are informed that the primary dispute pertains to seniority and not promotion itself Thus the question and issue of reservation in promotion is significant and crucial.

11. Accordingly, we set aside the impugned order dated 22^^ April, 2014 disposing of OA No. 3623/2011 and OA No. 3326/2012 with an order of remand for fresh adjudication. To cut short delay, we direct the parties in the said OAs to appear before the Tribunal on 10**^ April, 2017. Liberty is ^ also granted to the private respondents, who were the original applicants, to move an application for amendment of the OAs, if they are so advised. The said amendment applications should be preferably filed within a period of four weeks from the date a copy of this order is received by the counsel for the said private respondents. We clarify that this Court has not made any observations on merits and the Tribunal will independently examine and apply its mind on the issues and controversies raised. We also clarify that till the decision of the OAs by the Tribunal, the petitioners and the respondents would not be reverted. We have given this direction as it is pointed out that both the petitioners and the private respondents stand promoted to the post of Assistant in the Employees Provident Fund W.P. (C) Nos. 3359/2014 &3996/2014 Page 6of[7] % r Organisation and to the post of Inspector (Stenographer) in the Delhi Police. There would be no order as to costs.

FEBRUARY 28, 2017 VKR ^ O W.P.(C) Nos. 3359/2014& 3996/2014 //c SANJIV KHANNA, J. CHANDERS v-'W.vV' r ^ Page 7 of[7]