K J S BAINS vs UNION OF INDIA AND ORS
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: April 26, 2024
CM Appls. 24283/2024, 24284/2024 & REVIEW PET. 175/2024
IN
+ W.P.(C) 4627/2021
(1) K J S BAINS ….. Petitioner
Through: Mr. Ankur Chhibber, Mr. Nikunj Arora and Ms. Samridhi Bhatt, Advs.
versus
UNION OF INDIA AND ORS ….. Respondents
Through: Mr. Harish Vaidyanathan Shankar, CGSC with Mr. Srish Kumar Mishra, Mr. Alexander Mathai Paikaday, Mr. Lakshay Gunawat and Mr. Krishnan V., Advs. with Ms. Aishwarya Chhabra, G.P.
CORAM:
HON’BLE MR. JUSTICE V. KAMESWAR RAO
HON’BLE MR. JUSTICE SAURABH BANERJEE
V. KAMESWAR RAO, J. (ORAL)\
CM APPL. 24284/2024
Exemption allowed subject to all just exceptions.
Application stands disposed of.
CM APPL. 24283/2024
This is an application filed by the applicant / review petitioner seeking condondation of 6 days delay in filing the review petition.
For the reasons stated in the application delay of 6 days in filing the review petition is condoned.
Application stands disposed of.
REVIEW PET. 175/2024
1. This review petition has been filed by the petitioner seeking review of judgment dated March 20, 2024 in the aforesaid writ petition whereby the writ petition filed by the petitioner was dismissed by holding in paragraphs 42 to 46. as under:
42. In the present petition, there is no restructuring of cadre. The post of IG came to be abolished as the post was not filled for more than one year in the absence of any Recruitment Rules. Even the DPC of the year 2017 could not be held for the same reason. The recruitment rules having been notified only in the year 2023, the petitioners case could not have been considered as he had superannuated in the year 2020. Therefore, the petitioner cannot seek the benefit of ugradation from back date of 2013-2014.
43. That apart, the petitioner never approached the Court of law seeking the benefit of the upgraded post of CLO/IG. In fact, V. S. Yadav had contested the inter se seniority between him and the petitioner, which would also indicate that, on the basis of seniority, the petitioner could not have been given the upgraded post of CLO/IG.
44. Insofar as the judgment in the case of State of Mizoram & Anr. v. Mizoram Engineering Service Association & Anr., (2004) 6 SCC 218, is concerned, Mr. Chhibber has relied upon paragraph 6, which reads as under:-
6. Great stress was laid on the fact that Engineering Service in the State was not an organised service and therefore, it did not have categorisation by way of entrance-level and senior-level posts and for that reason the higher scale of Rs 5900-6700 which was admissible for senior-level posts could not be given in the Engineering Service. The main reason for dubbing Engineering Service as an unorganised service in the State is absence of recruitment rules for the service. Who is responsible for not framing the recruitment rules? Are the members of the Engineering Service responsible for it? The answer is clearly No. For failure of the State Government to frame recruitment rules and bring Engineering Service within the framework of organised service, the engineers cannot be made to suffer. Apart from the reason of absence of recruitment rules for the Engineering Service, we see hardly any difference in organized and unorganised service so far as government service is concerned. In government service such a distinction does not appear to have any relevance. Civil service is not trade unionism. We fail to appreciate what is sought to be conveyed by use of the words organised service and unorganized service. Nothing has been pointed out in this behalf. The argument is wholly misconceived.
45. The aforesaid paragraph 6 has no applicability to the facts of this case. In the said case, the issue was with regard to the failure on the part of State Government to frame Recruitment Rules and bring Engineering Service within the framework of organised service. The Supreme Court therein held that there is hardly any difference in organised and unorganised services as far as government service is concerned.
46. It is true that the Recruitment Rules were not framed for holding DPC for the vacancy year 2013-2014 for post of CLO / IG but inter-se seniority was challenged by V.S. Yadav claiming seniority over the petitioner, which is pending litigation. Hence, the non-framing of the Recruitment Rules would not better the case of the petitioner. In any case, the petitioner had made his claim for the post of CLO/IG only after his retirement/superannuation in the year 2020, which is quite belated.
2. The submission of Mr. Ankur Chhibber, learned counsel appearing for the review petitioner is that the finding given by this Court in paragraph 42 to the effect that the post of IG came to be abolished for non-framing of Recruitment Rules is contrary to the record and is an error apparent on the face of the record. According to him, as one post of Chief Law Officer/DIG was upgraded to the post of Chief Law Officer/IG on June 28, 2013, the said post was never abolished. Rather, it is the petitioner who on superannuation of H.G. Garg has been performing the job of Chief Law Officer till the date of his superannuation.
3. He further stated that the finding of this Court in paragraph 43 of the judgment dated March 20, 2024, wherein this Court has stated that one V.S. Yadav has contested the inter se seniority between him and the petitioner, the petitioner could not have been promoted to the post of CLO/IG, is also not correct for the reason that V.S. Yadav has never challenged the inter se seniority between him and the petitioner. According to him, V.S. Yadav had filed a petition questioning the power of the respondents in granting relaxation in the medical category to the petitioner for being considered for promotion to the rank of IG.
4. Mr. Chhibber stated that, the finding of this Court in paragraph 46 of the impugned judgment, wherein it was held that the petitioner has only made claim for his promotion after superannuation and therefore, the same was belated and thus the petitioner could not be given the benefit is also incorrect. This finding according to him is also contrary to the record of the respondents when, admittedly pursuant to the promotion of the petitioner to the post of CLO/DIG and the upgradation of the said post as CLO/IG in the year 2013, the respondents themselves were taking up the case of the petitioner for promotion to the rank of IG.
5. He stated that the draft Recruitment Rules were sent to the MHA, who further forwarded the same to the DoP&T. Once the respondents were considering the case of the petitioner, the petitioner was confident that the respondents would do justice with him and accordingly waited as being an obedient soldier. The petitioner was also assured by the competent authority that justice would be done with him while considering him for the promotion. In fact, till 2021, the respondents through their letters dated February 13, 2020 and April 23, 2021 were actively engaged in the process of conducting DPC for considering the petitioner for promotion to the post of CLO / IG and as such the petitioner could not file any petition while in service. Since the respondents have not granted the claim of the petitioner, he had no other alternative but to file the petition after his superannuation.
6. In so far as the first submission of Mr. Chhibber is concerned, Mr. Harish Vaidyanathan Shankar, learned CGSC appearing for the respondents, do concede that there has been inadvertent error on his part as a counsel to state an incorrect fact that the post of CLO/IG has been abolished. In this regard, he has tendered is unconditional apology. Nonetheless, he submits that upon upgradation, the post could not be filled up because of the absence of the Recruitment Rules.
7. In so far as the other submissions of Mr. Chhibber are concerned, Mr. Vaidyanathn would submit that there is no illegality in so far as the conclusion drawn by this Court in paragraphs 43 and 46 of the impugned order. In fact, he has drawn our attention to the prayer clause made by V.S. Yadav in his writ petition, wherein followings were the prayers:
(i) For setting aside the empanelment of Respondent No.3 i.e., Shri K J S Bains for promotion to the post of CLO/DIG during vacancy year 2010-11 and to quash the seniority list circulated on 31.07.2012.
(ii) To consider the Petitioner (Shri V S Yadav) for the post of Inspector General in preference to Respondent No.3 (Shri K J S Bains, CLO/DIG) as per his seniority.
(iii) To grant seniority to the Petitioner (Shri V S Yadav) in the rank of CLO/DIG w.e.f. 01.09.2010 i.e., date of first vacancy with all consequential benefits.
(Emphasis supplied)
8. We agree with the submissions made by Mr. Vaidyanathan. In fact, V.S. Yadav, who was also in the zone of consideration, had challenged the seniority of the petitioner qua him. While considering the interim prayer, the Court had stated that, any appointment to the post of I.G. (Law) shall be subject to orders which may be passed in the writ petition. Mr. Chhiber has argued that, nothing precluded the respondents to grant the promotion of CLO/IG to the petitioner with which we agree but, the respondent BSF had sent the file to the MHA for holding DPC, but in the absence of Recruitment Rules, the MHA directed the BSF to take immediate steps to frame the Recruitment Rules for the post of CLO / IG.
9. In view of above stand taken by the MHA, it was more reason for the petitioner to have approached this Court seeking a direction for his consideration for promotion to the post of CLO/IG by placing reliance on the DoP&T instructions dated February 4, 1992 and March 30, 1988. It is in this context, the observations made by this Court in paragraph 46 becomes relevant. So, it must be held even if the post of CLO/IG was not abolished, still the petitioner would not be entitled to the prayer as sought by him in the petition, for consideration of his case for promotion to the post of CLO/IG. We do not see any merit in the petition. The same is dismissed.
V. KAMESWAR RAO, J
SAURABH BANERJEE, J
APRIL 26, 2024/jg
W.P.(C) 4627/2021 Page 7