P B SINGH  Vs UNION OF INDIA THROUGH & ORS.

W.P. (C) 10772/2020 1 of 9
$~Suppl. -35
* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ W.P.(C) 10772/2020 & CM APPL. 33809/2020

P B SINGH ….. Petitioner
Through Petitioner in person.

versus

UNION OF INDIA THROUGH & ORS. ….. Respondent s
Through None

% Date of Decision: 25th January, 2021

CORAM:
HON’BLE MR. JUSTICE MANMOHAN
HON’BLE MS. JUSTICE ASHA MENON

J U D G M E N T

MANMOHAN , J (Oral)
1. Present writ petition has been filed with the following prayers: – :
“(a) to issue a writ of certiorari, order or direc tion calling
for records of the decision and order dated 23rd
(b) to issue a writ of certiorari, order or direction to
quash the impugned order [contained in para 14 of
affidavit 16.2.2015(ANNEXURE P-8)], since Respondents
have illegally and arbitrarily denied petitioner of his right to be considered for upgradation to grade of Additional Secretary, in as much as Respondents had returned the September
2014 and proceedings of the Contempt Petition CP No
707/2014 in 0A No 1245/2014 from the Central
Administrative Tribunal, Principal Bench, New Delhi;

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proposal for upgradation and appointment of petitioner to
grade of Additional Secretary, without the said proposal
having been considered by the Appointment Committee of
Cabinet , for an irrelevant and malafied d epartmental
proceedings initiated on 19.11.2014 subsequent to
8.8.2018 the date upgradation simpliciter of petitioner to
grade of Additional Secretary, became due against the
vacancy arisen on 8.8.2013 under the scheme of
upgradation simpliciter in the Gov t of India DOPT Order
dt 21.6.2004(ANNEXURE P-1) ;
(c) to issue a writ of mandamus, order or direction to
Respondents for considering petitioner entitled to be considered by Respondents in the Appointment Committee of Cabinet (ACC) for approval of his app ointment to grade
of Additional Secretary against the vacancy arisen on 8.8.2013 under the scheme of upgradation simpliciter in
the Govt of India DOPT Order dt 21.6.2004 (ANNEXURE
P-1) ,with all consequential benefits with effect from
8.8.2013,that is, from the date upgradation simpliciter of petitioner became due under the said scheme;
(d) to issue such order or direction as Hon’ble Court
deems fit and proper in the circumstances. ”

2. Petitioner , who appears in person, states that the Respondents have
illegally and arbitrarily denied petitioner his right to be considered for
upgradation to the post of Additional Secretary, in as much as r espondents
had returned the said proposal for upgradation without the same being
considered by the Appointment Committee of Cabinet. Petitioner states that
he becam e entitled for upgradation simpliciter to the grade of Additional
Secretary, against the vacancy on 8
th August 2013 under the scheme of
upgradation simpliciter of the Govt of India vide DOPT Order d ated 21st
June, 2004 .
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3. The petitioner states that the petitioner was the senior most Joint
Secretary and Legislative Counsel (JS&LC) and was eligible for grade of
Additional Secretary in the scheme of upgradation simpliciter and the
petitioner also states that the Respond ents No. 2 & 3 had with malafide
intent promoted a candidate junior to the petitioner to the grade of
Additional Secretary against the vacancy. The petitioner further states that
this Court vide order dated 28th
4. Having heard the petitioner, this Court is of the view that the
challenge to the order dated 23 November 2018 in W.P.(C) No.8910/2014
had neither considered nor rejected the said issue .
rd September, 2014 and proceedings of the
Contempt Petition being CP No.707/2014 in O.A.1245/2014 as well as to
the averments in the affidavit dated 16th
5. In the affidavit dated 16 February, 2015 filed before the
Central Administrative Tribunal is barred by delay and laches.
th
11. That in pursuance of the order of the Hon’ble Tribunal the
proposal was sent to Cabinet Secretariat on 31 February , 2015, the contention of the
petitioner regarding the alleged personal grudge of the respondents N os. 2 &
3 were denied as baseless as well as frivolous and the petitioner was
described as a habitual litigant who had filed large number of frivolous
cases. The relevant averments in the said affidavit are reproduced
hereinbelow:-
st October 2014
requesting to consider the candidate of Shri Prakash Singh for
the post of additional Secretary. It has been informed by the Cabinet Secret arial that on receipt of the proposal the claim of
Shri Prabhakar Singh for promotion to the post of Additional
Secretary in the Legislative Department has been considered by
the Search-Cum – Selection Committee (SCSC) in its meeting
held on 11.11.2014, in due compliance of the directions dated
23
rd September 2014 and 31st October 2014 of Hon’ble Central
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Administrative Tribunal, Principal Bench, New Delhi.
Accordingly, the recommendation of the SCSC was submitted for seeking the approval of the appointments committee of the
Cabinet. However, in the meanwhile departmental proceedings
under Rule 16 of CCS (CCA) Rules, 1965 were initiated against
Shri Prabhakar Singh. 12. That much prior to these processes, Shri Prabhakar Singh approached Members of Parliament to sponsor his case in
respect of service matters. At the first instance on 24.1.2014
(Annexure R -l) he was advised to desist from approaching
members of parliament in this regard in terms of Rule 20 of the
CCS (CCA) Rules, 1964 with the approval of the c ompetent
authority. Further on 14.7.2014 again Shri Prabhakar Singh got a letter written by another member of parliament for exerting political influence in processing his case and on being found guilty of violating the conduct rules second time, a
written warning was issued to him on 20.8.2014 (Annexure R –
II) with the approval of competent authority and a copy thereof
was placed in his ACR dossier as per the Rules. Instead of desisting from bringing political pressure, Shri Prabhakar Singh again submitted a representation directly to the Hon’ble
Prime Minister. On this issue, advice of the department of
Personnel & Training was sought as to whether the officer may
be proceeded against for violation of CCS Conduct) Rules, 1964 time and again.
13. That the d epartment of Personnel & Training vide their note
dated 31.10.2014 informed that matter may be dealt as per
provisions of the office Memorandum dated 6th June 2013. The
said O.M. inter -alia provides that submissions of
representations directly to higher au thorities by -passing the
prescribed channel of communication, has to be viewed seriously and appropriate disciplinary action should be taken against those who violate these instruction as it can rightly be
treated as an unbecoming conduct attracting the pr ovisions of
Rule 3(1)(iii) of the CCS (Conduct) Rules, 1964. – In view of
these instructions and with the approval of the Hon’b1e
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Minister of Law & Justice, departmental proceedings under
Rule 16 of the CCS (CCA) Rules, 1964 had been initiated against Shri Prabhakar Singh vide Memorandum dated 19th
November 2014.
14. That in the light of the departmental proceedings initiated under Rule 16 of the CCS (CCA) Rules, 1965 against the office and his retirement on 30.11.2014, the proposal seeking ACC’s approval w as returned. This position has been communicated to
the Legislative Department by Cabinet Secretariat vide
communication dated 16.12.2014. The applicant has directly
not brought on record the fact that departmental proceedings under rule 16 of CCS (CCA)(Ru les, 1965 had been initiated
against him by the Legislative Department. As such, the claim of applicant that the respondents have not complied with Tribunals directions in the matter is without any basis.

15. That the submissions of the applicant that res pondents No.2
& 3 are having personal grudge against the applicant is denied.
Claim of seniority of the applicant over respondent -No.3 was
rejected by Hon’ble CAT, PB New Delhi vide order dated 20.8.2009 in OA No. 1071/2002. Further writ petition (C) No. 11995/2009 filed by the applicant before Hon’ble High Court of
Delhi, challenging Hon’ble Tribunal order dated 20.8.2009 in
OA No. 1071/2009 has been dismissed vide decision dated 7
th
August 2014. On submission of the applicant that issue is still pending before Hon’ble Supreme Court, it is submitted that no
notice has been received by the respondents and respondents are not aware whether applicant has challenged the decision
dated 7
th
The contentions of the applicant regarding the alleged
personal grudge of the respondents No.2 & 3 are baseless,
frivolous and merit rejection. It is pertinent to mention here that
the applicant is a habitual litigant who has filed large number
of frivolou s cases in his entire career. Regarding his averment
of seniority dispute with the respondentNo .3, it is submitted that August 2014 of Hon’ble High Court of Delhi in WP
(C) No. 11995/2009.

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the same has already been rejected by the Hon’ble Tribunal
vide order dated 20.8.2009 in OA No. 1071/2002 and further the said order of the Tribunal has been upheld by the Hon’ble High Court of Delhi in Writ Petition No.11995/2009 vide order
dated 7.8.2014. It is further submitted that in the above
mentioned writ petition, the above applicant was also issued Contempt Petition for filing false affidavit before the Hon’ble High Court of Delhi. However, the said contempt notice was discharged on the unconditional apology by the applicant. The applicant was also burdened with cost in OA No.3237/1992
titled Nanak Chand Thekwani Vs. UOI where the Hon’ble
Tribunal rejected the MA filed by the applicant for intervention.
The above facts show that the applicant is a habitual litigant and has been indulging in frivolous litigation and even mislead the Hon’ble High Court of Delhi by filing false affida vit in order
to get relief; of which the Hon’ble High Court took a serious view and contempt notice was issued as stated above. This
shows the conduct of the applicant in pursuing his interest by
wrong methods. In view of the above facts, it is respect fully submitted that
respondents have fully complied with the orders of the Hon’ble Tribunal dated 23rd September 2014 and 31st October 2014 in
letter and spirit. It is, therefore, prayed that the contempt
proceedings may not be initiated against the respo ndents. It is
further respectfully submitted to this Hon’ble Tribunal that contempt petition against respondents may kindly be dismissed in view of detailed submissions made herein above.”

6. Further the alleged seniority dispute with the respondent no.3 and the
alleged right to upgradation are no longer res integra as they had been
decided in O.A.No.1245/2015 and thereafter in W.P.(C) No.1890/2014 by
the High Court of Delhi. The relevant portion of the Division Bench
judgment in WP(C) 1890/2014 is reproduced herein below: –

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“10. This court is of the opinion- for reasons to be outlined
hereafter, that the impugned order is in clear error. The sequence of
facts would show that a post of JS & LC was upgraded pursuant to a
decision of the Union Cabinet; the order of 29 June, 2004, inter alia,
states that
“The post of Joint Secretary and Legislative Counsel
(Grade I of Indian Legal Service) in the Legislative
Department shall stand upgraded to the post of Additional Secretary with effect from the date of
appointment senior most Joint Secretary and Legislative
Counsel in the Legislative Department to the said
upgraded post of Additional Secretary.”

11. It is a matter of record (undeniably, since the applicant did not also dispute it) that on 2 September, 1999, the Prime Minister had
approved and sanctioned the method of filling the post of Secretary
and Additional Secretary in the Indian Legal Service; this included
the Cabinet Secretary, as chair and other ranking officers as well as
an outside expert. Separate committees were to appraise for the two
posts. If seen in the context of this order, the upgradation order of
2004 was an exception. The order of 2007, reviving the post, is as
follows:
“In this regard it may be relevant to point out that since
seniormost Joint, secretary & Legislative Counsel in, the
Legislative Department has already reached the basic
pay equivalent to the scale of pay of Additional
Secretary. i.e. Rs. 22.400’wai effect from 1st September,
2006- and therefore will not- be any financial
implication on the revival of the post of Additional
Secretary in view of the reasons stated above, the
approval of the Cabinet is solicited to
operationalize/revive the post of Additional Secretary in
the Legislative Department for its being held by the
senior- most Joint Secretary & Legislative Counsel of
the legislative Department as approved by the Cabinet
on 15th June, 2004”

12. In the opinion of this court, the order of June, 2004 merely
upgraded a post to that of Additional Secretary that upgradation
carried with it the incumbent, who later retired. The post thereafter
was abolished, in a sense. The order of 2007, which approved the
above note, merely revived the post. However, no separate
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procedure to fill the post was carved out; the order of 2007 does not
reflect a decision to override the search cum selection mode
approved by the PM 02-09-1999. If we see, these facts it is apparent
that the procedure carved out through the orders of 2004 and 2007
were one time measures or exceptions. They could not have been
invested with the invulnerability of a vested right of a candidate
facing public selection on merits, who is confronted with a changed
criteria. The Rangaiah and Deepak Agarwal decisions are clear authorities on the proposition that the rules of selection (akin to the
rules of a game) cannot be changed after the selection procedure has
commenced. However, in this case, the temporary upgradation of a
post (its revival signifies its temporary nature) did not carry with it
any permanence as to the mode or procedure of filling. On the other
hand, the order of 2 September, 1999 clearly envisioned the
adoption of a selection method to fill the concerned post.
Furthermore, the Transaction Rules clearly posit that all posts of
Joint Secretary and above are to be filled by approval of the ACC.
The ILS Rules, especially Rule 13, refer to “orders of government” with respect to filling of posts of a particular pay grade and above.
Clearly, therefore, the applicant could not have claimed a vested
right to the post merely because he was the seniormost JS & LC.

13. This court is also of the opinion that the UOI’s view, or
considered decision, not to fill the post of Additional Secretary till a final decision, clarifying the situation is also ipso facto not
review able. Sunkersan Dash (supra) is a Constitution Bench
judgment and authority on the point that the government or a public agency is not obliged to appoint someone or many even after the
completion of the recruitment process, if there a rationale for such
decision. In this case, there is no compelling rule or binding legal
norm which obliged the UOI to fill the vacancy of Additional
Secretary (revived after the incumbent had retired). Having regard
to the facts available, it decided not to presently fill the post. The
subsequent order issued by it is that the post would be filled according to the procedure prescribed by the 02-09-1999 decision
and in accordance with the Transaction Rules. There is no infirmity
in such a view; it is reasonable and valid.

14. For the above reasons, it is held that the impugned order of the
CAT cannot be sustained; it is hereby set aside. The writ petition is,
accordingly allowed without order on costs.”
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7. Consequently, petitioner by way of the present writ petition seeks to
relitigate and convert this Court into an Appellate Court of the earlier
Division Bench judgment in WP(C) No. 1890/2014 – which is not
permissible in law. Accordingly , the present writ petition along with
pending application stand dismissed.

MANMOHAN, J

ASHA MENON, J
JANUARY 25, 2021
KA

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