DEPARTMENT OF DEFENCE RESEARCH AND DEVELOPMENT THROUGH CHAIRMAN vs DEEPTI BHARDWAJ & ORS.

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: November 7, 2023

+ W.P.(C) 14269/2023, CM APPL. 56533/2023

(1) DEPARTMENT OF DEFENCE RESEARCH AND DEVELOPMENT THROUGH CHAIRMAN
….. Petitioner
Through: Mr. Apoorv Kurup and
Ms. Gauri Goburdhun, Advs.

versus

DEEPTI BHARDWAJ & ORS.
….. Respondent
Through: Ms. Sunieta Ojha, Adv. for R-1
Ms. Avshreya Pratap Singh Rudy,
SPC with Ms. Usha Jamnal, Adv. for R-2

CORAM:
HON’BLE MR. JUSTICE V. KAMESWAR RAO
HON’BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA

V. KAMESWAR RAO, J. (ORAL)

1. This petition has been filed by the petitioner / Department of Defence Research and Development through its Chairman challenging the order dated August 1, 2023, passed by the Central Administrative Tribunal Principal Bench, New Delhi (‘Tribunal’, for short) in Original Application No.1161/2020 (‘OA’, for short) whereby the Tribunal has disposed of the OA filed by the respondent No.1 herein by stating in paragraphs 7.1 onwards:
“7.1 The case of the applicant as well as the respondents solely hinges upon NOTE -I to the RR?s for the post of CAO. The said rule is reproduced as under:
“Promotion:

Senior Administrative Officer Grade-I and Senior Stores Officer Grade-I in the scale of pay of Rs.15600-39100 with Grade Pay of Rs.6600 in Pay Band-3, with five years regular service in the cadre or department.
Note I: Where juniors who have completed their qualifying or eligibility service are being considered for promotion their seniors would also be considered provided they are not short of the requisite qualifying or eligibility service by more than half of such qualifying or eligibility service or two years, whichever is less and have successfully completed their probation period for promotion to the next higher grade alongwith their juniors who have already completed such qualifying or eligibility service.

Note 2: For the purpose of computing minimum qualifying service for promotion, the service rendered on a regular basis by an officer prior to First January two thousand six or the date from which the revised pay structure based on the sixth CPC recommendations has been extended, shall be deemed to be service rendered in the corresponding grade pay/pay scale extended based on the recommendations of the Pay Commission.

Deputation: Officers of the Central or State Government or Union Territories;

(a) (i) holding analogous posts on regular basis in the parent cadre or Department or
(ii) with five years service in the grade rendered after appointment thereto on regular basis in the scale of Pay of Rs.15600-39100 with Grade Pay of Rs.6600 in Pay Band-3 or equivalent in the parent cadre or Department; and
(b) possessing following educational qualification and

Experience:-

(i) degree of a recognised University;
(ii) ten years experience in Administrative, Establishment or Accounts matters.
(The departmental Officers in the feeder category who are in the direct line of promotion shall not be eligible for consideration for appointment on deputation. Similarly, deputationists shall not be eligible for consideration for appointment by promotion).
(Period of deputation including period of deputation in another ex-cadre post held immediately preceding this appointment in the same or some other Organization or Department of the Central Government shall ordinarily not to exceed three years. The maximum age-limit for appointment by deputation shall be not exceeding fifty six years as on the closing date of receipt of applications).
Note : For purpose of appointment on deputation basis, the service rendered on a regular basis by an officer prior to first January two thousand six (the date from which the revised Pay Structure based on the Sixth CPC recommendations has been extended) shall be deemed to be service rendered in the corresponding grade pay/pay scale extended based on the recommendations of the Pay Commission except where there has been merger of more than one pre-revised scale of pay into one grade with a common grade pay/pay scale and where his benefit will extend only for the posts) for which that Grade pay/pay scale is the normal replacement grade without any upgradation.”

7.2 For the purpose adjudicating the claim of the applicant, Note-I of the aforesaid RR?s is relevant, which was incorporated in Rule after the issuance of the OM of 1996. On analysis of the aforesaid Note-I, we find that for considering the eligibility service for consideration for promotion to the post of CAO, there are two pre- requisite conditions viz.:
(i) The seniors shall also be considered for promotion who fall under the zone of consideration
(a) provided they are not short of the requisite qualifying or eligibility service by more than half of such qualifying or eligibility service
or
(b) two years, whichever is less and have successfully completed their probation period for promotion to the next higher grade along with their juniors who have already completed such qualifying or eligibility service period for promotion to the next higher grade along with their juniors who have already completed such qualifying or eligibility service.

7.3 We find from the records that earlier the applicant had filed OA No.2101/2014, which was allowed by this Tribunal vide common order dated 08.09.2017. The said order was challenged in appeal by filing WP (C) No.10443/2017 by the respondents. Hon?ble High Court of Delhi was pleased to allow the Writ petition vide judgment dated 09.08.2018, the relevant part thereof reads as under: –
“21. For the aforesaid reasons, we find no infirmity in the order passed by the Tribunal insofar as it relates to the respondent nos.1 and 2. However, the impugned order of the Tribunal insofar as it relates to respondent no.3, cannot be sustained and is accordingly set aside. As a result, WP(C) No.10443/2017 and WP(C) No.1490/2018 filed by the petitioner/UPSC are dismissed with directions to the UPSC to comply with the directions of the Tribunal in respect of Deeps Hardware and Dendrite Kumar within two weeks.”

7.4 While examining the relief sought in the present OA, we may now consider whether for the purpose of eligibility, the applicant fulfilled the eligibility conditions as per RR Note-I or not. To appreciate the rule position, the following had been recorded by this Tribunal in its order dated 27.08.2020:-
“Thereafter, her result for the post of Grade-I post was declared on 23.8.2018. She was appointed to the Grade-I post vide orders At. 26.10.2018.
4. In accordance with seniority list for Grade-I post, issued on 29.11.2018, her seniority is given w.e.f 29.11.2018. She represented on 15.2.2019 for notional pay fixation with respect to her junior in the select list and back wages and promotion to the next promotional post of Chief Administrative Officer (CAO) for the vacancy year 2019. This was rejected on 19.6.2019.
5. Now one officer Sri Arun Kumar, who joined on 31.7.2018, is being considered for the post of CAO. Her representation to be considered has been rejected on 13.12.2019 on the plea that she has not yet completed her probation in Grade-I yet.
6. Feeling aggrieved, the instant OA has been filed. IR has also been pressed.
7. Matter has been heard. Issue notice.
Sh. Ashok Sharma, learned counsel appears on behalf of respondent No.1 on receipt of advance information and accepts notice. He seek four weeks time to file the reply. Two weeks time thereafter, is given to the applicant to file rejoinder, if any. List on 20.10.2020.

8. Meanwhile, while the respondents may go ahead with the DPC for the post of CAO, it is directed that promotion against one post of CAO, shall be subject to the outcome of the instant OA.”

7.5 Pursuant to the Order(s) passed by the Hon?ble High Court, the applicant along with two others were placed in the pay scale of Rs.15,600-39,100 (PB-3) + Grade Pay Rs.6,600 vide order dated 28.08.2018.

7.6 Thereafter, the appointment letter dated 26.10.2018 was issued to the applicant on the post of SAO Grade-I in DRDO. Clause 2 (b) of the said appointment letter reads as under:-
“(b) She will be on probation for a period of one year from the date she assumes charge as Senior Administrative Officer Grade-I which may be extended at the discretion of the Competent Authority. Failure to complete the period of probation to the satisfaction of Competent Authority, she will liable to be discharged from service.”

7.7 It was further provided in Clause 2 (d) of the aforesaid appointment letter as follows:
“(d) She will be required to undergo mandatory training for a duration of Two (02) weeks and any additional training as and if recommended by UPSC. Successful completion of the training is a pre- requisite for completion of probation.”

7.8 It is also highlighted that in the said appointment letter an endorsement was made to the following effect:
“1. (a) The candidate is presently working as Senior Administrative Officer Grade-II (CAO-II) (Group A, Gazetted) in DRDO. Verification of Character and Antecedents of the candidate was conducted before joining the post of AO-II in DRDO and was found satisfactory.

(b) She was medically examined before joining the post of SAO-II in DRDO and she was found medically fit for the service.”

7.9 Technical resignation was accepted by DRDO and applicant was relieved on 19.11.2018. She joined on 26.11.2018. Thereafter, she made a representation for consideration for promotion by the DPC and sought other consequential reliefs. In response to the representation of the applicant dated 15.02.2019, UPSC passed order dated 19.06.2019, which is reproduced as follows:

“New Delhi, dated 19th June, 2019
To

The Chairman,
Defence Research and Development
Organization (DRDO),
266, ‘A’ Block, DRDO Bhawan,
Rajaji Marg, New Delhi-110011.

{Attention: Sh. Pravin Kumar Das, Dep. Director, Pers-AA-1}

Subject: Representation of Dr. Deepti Bhardwaj regarding notional pay fixation, payment of back wages and consideration for promotion to the post of CAO in DPC to be conducted in 2019 in respect of recruitment to 11 posts of Sr. Administrative Officer Grade-II in DRDO, Ministry of Defence.

Sir,

I am directed to refer to your letter no. DDOP/AA-1/68508/DR(SAO-I)2011 dated 12.04.2019 thereby forwarding a representation of Dr. Deepti Bhardwaj dated 15.02.2019.
2. In this connection, it is stated that the Commission only makes recommendation and the matter regarding pay fixation, being administrative in nature, may be decided by the Ministry/Administrative department in consultation with DoPT.

Yours faithfully,
Sd/-
(Bhagwan Dass)
Under Secretary (SPC)
Union Public Service Commission”

7.10 It is not a matter of dispute that a combined seniority list was prepared and circulated wherein the name of the applicant figured at serial no.6 showing her date of appointment as 26.11.2018, and the person next below, i.e., at serial No.7, namely, Mr. Arun Kumar Yadav, has been shown to be appointed on 31.07.2018. Since the applicant had been placed above him, it is evident that she was higher in the merit list. She represented on 15.2.2019 for notional pay fixation with respect to her junior in the select list and back wages as also promotion to the next promotional post of Chief Administrative Officer (CAO) for the vacancy year 2019. Now one officer Mr. Arun Kumar Yadav, who joined on 31.7.2018, is being considered for the post of Chief Administrative Officer (CAO) for the panel year 2021.

7.11 It appears that respondents have acted on the basis of an internal ID note dated 25.11.2019, reproduced in para 3.2 supra. We find that the said office note is contrary to the combined seniority list for DPC 2020. Since the applicant has already conceded the fact that she may not be fulfilling eligibility conditions as stipulated in RR Note-I for DPC in 2019. However, the fact remains that the applicant was shown at Sl. No.6 in combined seniority list as already highlighted above. It is also noticeable from the fact that one Mukesh Gairola, who joined after the applicant, was removed from probation w.e.f. 26.03.2020, even though she was appointed pursuant to the decision of the Hon?ble High Court in WP (C) No. 10443/2017 (Page 7 of MA), the said order of Mukesh Kumar Gairola dated 27.08.2020 is reproduced as follows:
“MEMORANDUM
Subject: Removal from probation in respect of Sh. Mukesh Kumar Gairola, Sr. Admin Officer-I
Consequence on satisfactorily completion of probation period w.e.f. 26.03.2019 to 25.03.2020, the competent authority has accorded approval for removal from probation in the grade of Sr. Admin Officer-I in respect of Sh. Mukesh Kumar Gairola, Sr. Admin Officer-I w.e.f. 26.03.2020 (F/N).”

7.12 Furthermore, it is also important to note that Mr. Arun Kumar Yadav has been shown in the panel year 2021 at Sl.No.5 whereas name of the applicant has been ignored even on the basis of Note-I of RR?s without any apparent reason. The fact of the matter also remains that name of petitioner was also removed from probation on 26.11.2019, as is evident from Order dated 04.11.2022,
which is reproduced as under:-

“OFFICE MEMORANDUM
With the approval of the Competent Authority Ms. Deepti Bhardwaj, SAO-I is hereby removed from probation and confirmation in the grade of SAO-I with effect from 26.11.2019.
2. Necessary entry in the Service Book of the officer may be made and the copy of the Part-II order may be provided to the concerned officer.
(Sandeep Singh)
Dy. Director/Pers AA2”

7.13 Therefore, the applicant has definitely made out a case for promotion for the post of CAO for the year 2021 as it is an admitted position that Mr. Arun Kumar Yadav, SAO-I was already under the zone of consideration, who was junior and at Sl. No.7 who was shown to be appointed on 31.07.2018. Since, the applicant had been placed above him, therefore, the stipulated conditions of Note-I already stand fulfilled for the panel year 2021, even though she would not have been eligible for panel year 2019 as she did not fulfil the requisite conditions in terms of Note-I. We may clarify that for the purpose of consideration of the case of the applicant for the year 2019, conditions stipulated in Note-I of the RRs as well as the internal note relied upon by the respondents would be very relevant. However, with the passage of time for the purpose of panel year 2021, the said note loses its norms. Hence, for the purpose of panel year 2021 the requisite conditions in terms of Note-I need not be looked into since there is no dispute regarding the name of the applicant figuring at Sl. No.6 above her junior.

7.14 We have also gone through the decision rendered by the Hon?ble Supreme Court in Pilla Sitaram Patrudu (supra). It is also a settled law that the applicant ought to have been considered for promotion to the post of CAO for the panel year 2021 from the date when her immediate junior, namely, Mr. Arun Kumar Yadav had been kept in zone of consideration. 7.15 In Union of India vs Smt. Sadhana Khanna decided on 14 December, 2007, in Appeal (Civil) 8208 of 2001, the Hon?ble Apex Court held as under:-
“11. It may be noted that the respondent was offered appointment vide letter dated 5.7.1983 which is after 1.7.1983 from which the eligibility was to be counted. Hence, it is the Department which is to blame for sending the letter offering appointment after 1.7.1983. In fact, some of the candidates who were junior to the respondent were issued letters offering appointment prior to 1.7.1983. Hence it was the Department which is to blame for this. Moreover, in view of the Office Memorandum of the Department of Personnel and Training dated 18.3.1988 and 19.7.1989 the respondent was also to be considered, otherwise a very incongruous situation would arise namely that the junior will be considered for promotion but the senior will not.
12. In view of the above there is no merit in this appeal and it is dismissed.”

7.16 Learned counsel for applicant also relied upon the following decisions of Hon?ble Supreme Court on the principle of “no work no pay” and submitted that this principle cannot be applied universally in all the cases as a thumb rule:
(i) Mohd. Ahmed vs. Nizam Sugar Factory and ors., (2004) 11 SCC 210
(ii) State of Kerala and ors. vs. E.K.Bhaskaran Pillai, (2007) 6 SCC 524
(iii) Commissioner, Karnataka Housing Board vs. C.Muddaiah, (2007) 7 SCC 689.

7.17 Pursuant to the order dated 13.07.2023 learned counsel for respondents has placed on record an affidavit filed on behalf of respondents No.1 and 3 clarifying the stand of the respondents. In para 7 of the affidavit it has not been disputed that against the order dated 08.09.2017 of this Tribunal, Writ Petition No.10443/2017 was filed by Respondent No.2, UPSC in Hon?ble High Court of Delhi, which was dismissed vide order dated 09.08.2018. As regards consideration for promotion to the post of CAO for DPC year 2019, it was observed that the eligibility criteria for promotion to the post of CAO as per the RRs (SRO 53 dated 08.07.2013) is as follows:
“SAO Grade-I and Sr. Stores Officer Grade-I in the scale of pay of Rs.15600-39100 with Grade Pay of Rs.6600 in PB-3 with five years regular service in the cadre or department.

“Note I: Where juniors who have completed their qualifying or eligibility service are being considered for promotion their seniors would also be considered provided they are not short of the requisite qualifying or eligibility service by more than half of such qualifying or eligibility service or two years, whichever is less and have successfully completed their probation period for promotion to the next higher grade alongwith their juniors who have already completed such qualifying or eligibility service.”

7.18 For the sake of better understanding, we may highlight that the respondents are not interpreting the OM dated 25.03.1996 in proper perspective so as to contend that such a clause can be applied only if there is one feeder grade for promotion to a post. DoP&T OM dated 25.03.1996 is reproduced as under:

“No. AB-14017/12/88-Estt. (RR)
Government of India
Ministry of Personnel Public Grievances and Pensions
Department of Personnel & Training

New Delhi, the 25th March, 96

OFFICE MEMORANDUM

Subject: Revision of guidelines for framing/amendment relaxation of recruitment rules — consideration of seniors in cases where juniors are considered.

The undersigned is directed to refer to para 3.1.2 of part.III in this Department’s O.M. No.AB-14017/12/87-Estt. (RR) dated 18th March, 1988 wherein it was suggested that a suitable “Note” may be inserted in the Recruitment Rules to the effect that seniors who have completed the probation period may also be considered for promotion when their juniors who have completed the requisite service are being considered.
2. In the light of the Supreme Court judgement in R. Prabha Devi and others versus Government of India and others in Civil Appeals Nos. 2040-42 of 1987 decided on March 8, 1988 on the judgement and order dated Feb. 11, 1986 of the Central Administrative Tribunal, New Delhi and in continuation of O.M. of even No. dated 23.10.1989 Government have decided to amend para 3.1.2 of Part.III in this Department’s O.M. No.AB-14017/12/87-Estt. (RR) dated 18th March, 1988. Accordingly, the last sentence of para 3.1.2 will stand amended to read as under:-
“To avoid such a situation the following note may be inserted below the relevant service rules/column in the schedule to the Recruitment Rules. Where juniors who have completed their qualifying/eligibility service are being considered for promotion, their seniors would also be considered provided they are not short of the requisite qualifying/eligibility service by more than half of such qualifying/eligibility service or two years, whichever is less, and have successfully completed their probation period for promotion to the next higher grade alongwith their juniors who have already completed such qualifying/eligibility service.”

3. Consequently para 2.1.2. of this Department O.M. No.AB-14017/12/87-Estt. (RR) dated the 18 March, 1988 will also be amended with the addition of the following sentence after 3 sentence of para 2.1.2 ibid.
“The administrative Ministries/Departments are also empowered to amend all the service rules/recruitment rules to incorporate the “Note” as amended above.”
Sd/-

(T. O. Thomas)
Under Secretary to the Government of India”

7.19 Needless to mention that DoP&T OM dated 25.03.1996, as highlighted above, in the OM itself was for revision of guidelines for framing / amendment / relaxation of recruitment rules where the said Office Order came to be passed in the light of the decision rendered in R. Prabha Devi and ors. vs. Government of India, 1988 AIR 902. The said OM was incorporated with a view to remove anomaly which had arisen as a result of consideration of juniors by ignoring seniors and not otherwise as contended by the respondents and that the same clause is applicable if there is only one feeder cadre for promotion to a post. Such interpretation would also lead to an anomalous situation which would run contrary to the letter and spirit of aforesaid OM dated 25.03.1996.

8. Conclusion:

8.1 In the result, for the foregoing reasons, the impugned Office Order dated 13.12.2019 is hereby quashed and set aside. The respondents are directed to consider the case of the applicant for promotion to the post of CAO from the date her immediate junior Mr. Arun Kumar Yadav has been considered for promotion for the panel year 2021, by convening a review DPC.
8.2 The applicant shall also be entitled to all consequential service benefits, including seniority on a notional basis from the date her immediate junior had been granted similar benefit, within 12 weeks from the date of receipt of a certified copy of this order.

8.3 The OA is disposed of accordingly. 9. No order as to costs.”

2. The facts as noted from the record are that the respondent No.4 UPSC had notified two posts, i.e., Senior Administrative Officer Grade-I (SAO Grade-I) and Senior Administrative Officer Grade-II vide employment news dated May 25, 2013 to May 31, 2023. A common admit card was issued for both the posts and a common written examination was held on January 05, 2014. List of short-listed candidates, including that of respondent No.1, was published on February 17, 2014. However, on June 03, 2014, another list of short- listed candidates for the post of SAO Grade-II was issued along with the schedule of the interview on June 06, 2014 in which the respondent No.1 was declared qualified. Another list of short- listed candidates for the post of SAO Grade-I was issued by the petitioner, which did not include the name of the respondent No.1.
3. Aggrieved by the non-inclusion of her name in the list of short-listed candidates for the post of SAO Grade-I, she made a representation. No response to the same was received.
4. The respondent No.1 approached the Tribunal by filing OA. 2101/2014. During the pendency of the said OA, the respondent No.1 was declared successful for the post of SAO Grade-II and was appointed as such and joined the post on January 01, 2015.
5. However, her candidature for Grade-I post, was cancelled by the recruiting agency. She participated in the selection process on provisional basis as per interim directions issued in the said OA, however, her result was kept in sealed cover. This OA was eventually allowed on September 08, 2017. The Tribunal declared the candidature of the respondent No.1 as valid. The challenge was made by the petitioner before this Court in WP (C) No.10443/2017 which was dismissed on August 09, 2018.
6. Thereafter, her result for the post of Grade-I was declared on August 23, 2018 and she was appointed as such vide order dated October 26, 2018, whereas her batchmates had already joined the said post in July, 2015 itself.
7. Thereafter, the first seniority list for the post of SAO Grade I, as on January 01, 2019, was issued, wherein the name of the respondent No.1 figured at serial no.6 showing her date of appointment as November 26, 2018, and the person next below, i.e., at serial No.7, namely, Arun Kumar Yadav, has been shown to be appointed on July 31, 2018.
8. The issue raised by the respondent No.1 was that Arun Kumar Yadav, who joined on July 31, 2018, is being considered for the post of Chief Administrative Officer (CAO). Her representation has been rejected vide order dated December 13, 2019 on the ground that she has not yet completed her probation in Grade-I. The respondent No.1 filed the present OA being OA. 1161/2020.
9. The case of the respondent No.1 was that the name of Arun Kumar Yadav appears at serial No.5 for consideration for promotion to the post of CAO for the panel year 2021. As per communication dated July 25, 2022, he being junior to the respondent No.1 in the seniority list issued on October 21, 2019, her name should also be considered for the panel year 2021.
10. It was also her case that though the date of her appointment has been shown to be November 26, 2018 in SAO Grade- I, she is also entitled to antedating the date of her appointment to July 2015 when her batchmates had been selected and appointed to the post of SAO Grade-I.
11. The submission of Mr. Apoorv Kurup, learned counsel for the petitioner is primarily that though the respondent No.1 is senior to Arun Kumar Yadav, but still in view of OM dated November 11, 2010, it is not necessary that the senior in the seniority list need to be considered for promotion when the junior is being considered.
12. We are not impressed by the submission made by Mr. Apoorv Kurup for the reason that the OM cannot override the recruitment rules framed under proviso to Article 309 of the Constitution of India. The recruitment rules to the post of SAO Grade-I reads as under:

xxxx xxxx xxxx

13. The said rule clearly contemplates that if the junior (like Arun Kumar Yadav) is being considered for promotion to the post of SAO Grade-I, the respondent No.1 being senior, is required to be considered.
14. One of the pleas of Mr. Apoorv Kurup is also that the rights of third party would also get affected with the consideration of the respondent No.1.
15. We are also not impressed by this submission made by Mr. Apoorv Kurup for the simple reason that the Tribunal has only directed the consideration of the case of the respondent No.1 to the post of CAO from the date of her immediate junior Arun Kumar Yadav has been considered for promotion for the panel year 2021 by convening a review DPC as the case of the respondent No.1, for consideration is primarily because Arun Kumar Yadav who is junior is being considered. It is a fact that Arun Kumar Yadav was / is a party in the proceedings before the Tribunal and also before this Court and in that sense, the person, whose rights if any effected is already a party to these proceedings.
16. We are of the view that no fault can be found with the order of the Tribunal. The writ petition is without merit. The same is dismissed.
17. The petitioner is granted six weeks time to comply with the order of the Tribunal. There shall be no order as to costs.
CM APPL. 56533/2023
Dismissed as infructuous.

V. KAMESWAR RAO, J

ANOOP KUMAR MENDIRATTA, J
NOVEMBER 07, 2023/aky

W.P.(C) 14269/2023 Page 19