Prasad P vs Union Of India And Ors on 3 December, 2014

[Cites 19, Cited by 0]

Sikkim High Court

Prasad P vs Union Of India And Ors on 3 December, 2014

1(i). The case of the Petitioner in the Writ Petition is that he is employed in the regular establishment as a Mason under the GREF having been recruited directed to that post on 02-03-1995. A Master Seniority List (MSL) was maintained by the employer during the year 2001 in respect of all Group 'D' employees (presently Group 'C') consisting of Carpenters, Masons, etc., for the purpose of promotion to the next higher post of Overseer on the basis of seniority and the result of trade test. As per the MSL of the year 2001, the Respondents No.7 to 12 were junior to the Petitioner. 4 WP(C) No.17 of 2013

Shri Prasad P. vs. Union of India and Others

(ii) That as per GREF Recruitment and Promotion Rules, 1982 (in short the "R&P Rules, 1982") for Group 'C' and 'D' employees, the Petitioner was eligible for promotion from the rank of Mason to Overseer subject to passing of trade test held by the Departmental Promotion Committee (in short the "DPC") organised by the HQ (P) Swastik where under the Petitioner was posted in the year 2001 with 221PWPL/87 RCC (P) Swastik in Sikkim.

(iii) That in the year 2001 the Record Section of GREF located at Pune vide letter No.2061/TT/89/CA2 dated 03/01/2001 had issued instructions to all projects to submit Trade Test Sheet (in short the "T. T. Sheet") of the Masons and Carpenters under them for promotion and the last date of receipt of T. T. Sheet by the Record Section at Pune for consideration in DPC, Phase-II/2001 was 31-08-2001.

(iv) The Petitioner along with others who were eligible had appeared in a DPC organised by the HQ CE (P) Swastik which conducted a written examination and 5 WP(C) No.17 of 2013 Shri Prasad P. vs. Union of India and Others viva-voce test in Sikkim, a process which is known as 'trade test'. On being successful in that, his name was included in the list of successful candidates to be promoted to the rank of Overseer. The result of the DPC, i.e., T. T. Sheet, was required to be dispatched by his Unit Headquarters, namely, HQ CE (P) Swastik, to the GREF Record Office at Pune, Maharashtra, so that it could reach them by 31-08-2001 for his name to be included in the list of candidates for being considered for promotion. However, the T. T. Sheet of the Petitioner was dispatched only on 01-09-2001 by HQ CE (P) Swastik and received by the Pune Office on 11- 09-2001 resulting in his name not being included in the list to be put up for consideration by the DPC, Phase- II/2001. As a consequence of this, his juniors, namely, Respondents No.7 to 12, got promoted for no fault of his own.

(v) It is stated that soon after he had appeared for the Trade Test in August, 2001, he was transferred from Sikkim 87 RCC to a remote place in Himachal Pradesh where he worked from 25-08-2001 to 19-04- 2004. Thereafter, he was posted under 91 RCC in far 6 WP(C) No.17 of 2013 Shri Prasad P. vs. Union of India and Others off Arunachal Pradesh from 20-04-2004 to 19-06-2007 and then, under 120 RCC in Tripura at the border of Bangladesh from 20-06-2007 to 17-08-2010. He was again transferred to 81 RCC at Leh, Ladakh/Kargil under Project Vijayak at the Pakistan border where he worked from 18-08-2010 to 03-03-2013 and finally, to 87 RCC in Sikkim again from 04-03-2013 and is continuing there.

(vi) The Petitioner's case is that after having successfully appeared in the trade test in which he had secured 85 marks in the oral and 73 marks in practical, he was expecting that his promotion would come through. Since a large number of Masons like the Petitioner and other Group 'D' employees working under GREF under different Projects had been trade tested compounded by the fact that he was posted in a remote area, he was unable to know the outcome of the DPC and as to whether or not he was superseded or if anyone at all had been promoted. It was only towards the end of the year 2003 that he was given to understand that in the intervening period some of his juniors, namely, Respondents No.7 to 12, had been 7 WP(C) No.17 of 2013 Shri Prasad P. vs. Union of India and Others promoted on the basis of the trade test held in August, 2001. As per his information, the Respondent No.12 was promoted only in the year 2002.

(vii) He then submitted representations to his employer and ultimately by letter dated 13-01-2004 bearing no.2057/THUR/FA2, copy of which was received by him through his local employer, i.e., HQ CE (P) Deepak, where he was posted, it was informed that his name was not considered in the DPC, Phase - II held in the year 2001 due to late receipt of his T. T. Sheet by the Record Office at Pune but would be considered as and when vacancies arise subject to fulfilment of the criteria as per R&P Rules, 1982. While being posted at 91 RCC in Arunachal Pradesh, he received a letter dated 22-07-2005 in response to a representation submitted by him dated 10-05-2005 to the Grievances Cell, HQ DGBR, New Delhi, by which for the first time he came to learn of the delay caused by the HQ CE (P) Swastik in Sikkim in dispatching his T. T. Sheet on time, and the Record Office at Pune having received it only on 11-09-2001 when it ought to have reached on 31-08-2001 resulting in his name not being 8 WP(C) No.17 of 2013 Shri Prasad P. vs. Union of India and Others included for consideration by the DPC, Phase - II/2001 and his juniors, Respondents No.7 to 12, being promoted. It was further informed that no DPC was held from 2002 onwards due to cadre review and that the Petitioner would be considered as and when vacancies would arise subject to fulfillment of eligibility criteria as laid down in R&P Rules, 1982, considering his seniority.

(viii) It is stated that the Petitioner was assured that he would be promoted to the post of Overseer in due course with his seniority requiring protected and that he should wait. Since the Petitioner was constantly on the move on transfers at remote corners of the country, he was unable to take legal recourse and had to satisfy himself with the assurances of his employer. Later, from a letter dated 07-08-2008 issued by the Record Office, GREF, Pune, it was learnt by the Petitioner that the HQ, DGBR had agreed in principle to conduct a Special Review DPC. This prompted him to submit a representation to the Record Office, Pune on 10-09-2008 requesting that his case for promotion with retrospective effect be reopened. 9 WP(C) No.17 of 2013

Shri Prasad P. vs. Union of India and Others

(ix) On 17-07-2010, while in Tripura on posting at the Bangladesh border, the Petitioner submitted a representation to the Grievances Cell reiterating his request for promotion on the aforesaid facts. To this, a reply was received vide letter dated 14-12-2010 from the Assistant Administrative Officer in the Directorate General, Border Roads (EG2), stating that no DPC was held till the year 2007 and that his name was considered during the DPC 2008 but was not accepted due to cadre review/merger of trades as per the Sixth Pay Commission recommendations. He states that he had taken part in the DPC held in 2008 under compelling circumstances without prejudice to his rights to claim for retrospective promotion with effect from the year 2001. As per the Petitioner, the implementation of the Sixth Pay Commission had no relevance as his case was that he ought to have been promoted from 2001 but for the exclusion of his name from the list of candidates for consideration for no fault of his own but, that of his employer. The Petitioner was unable to seek legal remedies due to his postings in distant and difficult border areas but, as soon as he 10 WP(C) No.17 of 2013 Shri Prasad P. vs. Union of India and Others was posted at Melli in Sikkim on 04-03-2013 under 87 RCC, he took the necessary steps towards that by issuing a legal notice dated 18-03-2013 seeking justice on the facts and circumstances as discussed above.

(x) It is the case of the Petitioner that he cannot be penalised for the dereliction attributable to his employer and made to suffer and languish in the same post for the last 19 years. He thus has prayed for a direction upon the Respondents No.1 to 6 to grant him promotion to the post of Overseer with retrospective effect from the year 2001 when his immediate junior, Respondent No.7, was promoted to that post and also for arrears of salary and all other service benefits due to him with effect from that date.

2(i). In their joint counter-affidavit, the Respondents have not disputed that the dispatch of the T. T. Sheet of the Petitioner had been delayed on account of which the Record Office at Pune did not include the name of the Petitioner in the recommendations for promotion to the DPC. The recommendations made in the year 2008 which 11 WP(C) No.17 of 2013 Shri Prasad P. vs. Union of India and Others included the name as the Petitioner was rejected by the HQ DGBR as proposal for merger of some trades was being considered by the Cadre Review Committee. Similarly, DPC that was conducted in the year 2009 also was not approved as the proposal for the merger of certain trades/posts was given effect to in the recommendations of the Sixth Pay Commission. It is thus stated that the Petitioner was not considered for promotion to the post of Overseer during the DPC 2001 due to non-receipt of T. T. Sheet by the GREF records in time and thereafter, his name was considered twice in DPC 2008 and 2009 for promotion to Overseer but, were not approved by HQ DGBR for the reasons stated earlier.

(ii) Preliminary objections have been taken on behalf of the Respondents on the ground of (a) delay and laches on the part of the Petitioner in seeking redressal. It is stated that grant of any relief on the basis of belated petition would lead to serious administrative complications and difficulties as it will upset the settled position regarding seniority and promotion; (b) that the Writ Petition was liable to be 12 WP(C) No.17 of 2013 Shri Prasad P. vs. Union of India and Others dismissed for non-joinder of necessary parties in as much as his juniors who were promoted in the DPC 2001 were not impleaded as parties; and (c) that simply because the case of the Petitioner was forwarded by the DPC for consideration it would not vest any right on him and repeated representations that are constantly rejected would not be a ground to claim any relief as sought for in the Writ Petition.

(iii) Further that the Petitioner was mis- interpreting letter dated 07-08-2001 to mean that there would be a Special Review DPC conducted in respect of those persons who had been aggrieved by the DPC already conducted by various Boards in the preceding years when actually it pertained to review of ante date seniority and further promotion of one Superintendent EM-II Raju K. of 81 RCC. It was thus prayed that the Writ Petition be dismissed.

3. Before dealing with the contentions raised in the case, it would be relevant to note that the Writ Petition was amended by order dated 30-05-2014 to implead Respondents No.7 to 12 who were juniors in 13 WP(C) No.17 of 2013 Shri Prasad P. vs. Union of India and Others service to the Petitioner thereby overcoming the objection of non-joinder of necessary parties. Following the amendment notices were duly served upon the newly impleaded Respondents, as would be evident from the affidavit of service dated 18-09-2014 affirmed by Major Rohan Lewis, Officer Commanding, 87 RCC, COY, GREF, the Respondent No.6. Despite this, Respondents No.7 to 12 chose not to appear and contest the case.

4(i). Pressing the Writ Petition, Mr. A. Moulik, Learned Senior Counsel, appearing on behalf of the Petitioner, submitted that the Petitioner could not be penalised for the negligence on the part of his superiors in forwarding his T. T. Sheet to the Record Office at Pune. He being posted at different locations in the different border areas had no scope or avenue to approach the Court of Law except to make representations. Apart from this, considering his employment as a Mason belonging to the Group 'D' category (now Group 'C'), he could not to travel all the way to the Courts in view of the limited salary drawn by him.

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(ii) It is submitted that the Respondents cannot take advantage of their own wrong by taking the plea of delay on the part of the Petitioner. Moreover, he had reasons to be optimistic in view of letter dated 07- 08-2008 issued by the Record Office GREF, Pune directing that the names of all those personnel whose names had been erroneously left out be forwarded for consideration by a Special Review DPC.

(iii) It is submitted that even the representations, which the Respondents hold are of no consequence, were not rejected as claimed by them but were always under consideration as would appear from letter dated 20-07-2010, Annexure P3, written by his employer at the material time by which his representation dated 17- 07-2010 was forwarded for consideration to the higher formation. Even in the letter dated 22-07-2005, Annexure P1, written to him by the AE (Civ) under 91 RCC where he was then serving, it was clearly stated that the Petitioner's case would be considered as and when vacancy would arise while admitting that his name had been left out for consideration in 2001 DPC as his recommendations was received by the Record 15 WP(C) No.17 of 2013 Shri Prasad P. vs. Union of India and Others Office, Pune from the concerned authority in Sikkim after the deadline of 31-08-2001.

(iv) It is submitted that as soon as he was posted to Sikkim under 87 RCC at Melli, he had initiated legal process by issuing legal notice through his lawyer on 18-03-2013. For these reasons, it is submitted that there was no delay on his part in filing the present Writ Petition.

(v) It is further submitted that his juniors were still holding the posts of Overseer and if he is given retrospective promotion at par with them considering the dereliction of his superiors resulting in him not being considered, no administrative difficulty would arise as alleged on behalf of the Respondents.

(vi) In support of his contentions, Mr. Moulik placed several decisions of the Hon'ble Supreme Court, some of which are as set out below:-

(i) Ramchandra Shankar Deodhar and Others vs. The State of Maharashtra and Others : (1974) 1 SCC 371;

(ii) Union of India and Another vs. Hemraj Singh Chauhan and Others : (2010) 4 SCC 290;

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Shri Prasad P. vs. Union of India and Others

(iii) State of Tripura and Others vs. K. K. Roy : (2004) 9 SCC 65;

(iv) Food Corporation of India and Others vs. Parashotam Das Bansal and Others : (2008) 5 SCC 100;

(v) Ram Ujarey vs. Union of India : (1999) 1 SCC 685;

(vi) Virendra Kumar and Others vs. Union of India : (1981) 3 SCC 30; and

(vii) Y. V. Rangaiah and Others vs. J.

Sreenivasa Rao and Others : (1983) 3 SCC 284.

5(i). Mr. Karma Thinlay Namgyal, Learned Central Government Counsel, appearing on behalf of the Respondents No.1 to 6, on the other hand, primarily stressed upon the question of delay and laches on the part of the Petitioner in bringing the Writ Petition. It was submitted that the Petitioner ought to have approached the Court for remedy as soon as the cause of action had arisen but, the fact that he did so almost 12 years later, disentitles him to seek the reliefs sought for by him having failed to explain the inordinate delay. Granting him the reliefs sought for at this stage will result in unsettling the settled positions and cause administrative chaos.

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(ii) The Petitioner's prayer for retrospective promotion was also not maintainable as the right to promotion was not a fundamental right. The only right that the Petitioner was entitled to was the right to be considered. The Respondents could not be faulted for his non-consideration in the year 2001 as his recommendations were received by the Record Office after the cut-off date of 31-08-2001. The recommendation of the Review DPC in 2008 and 2009 were not accepted due to the intervening circumstance of the Sixth Pay Commission recommendations in merging some of the posts which included the post by the Overseer to which the Petitioner was claiming to be promoted. In view of this, the Petitioner would not be entitled to any relief as sought for in the Writ Petition.

(iii) The Learned Central Government Counsel sought reliance on the following decisions in support of his contentions:-

          (i)          Union of India and Others vs. A.
                       Durairaj (Dead) by LRS. : (2010) 14
                       SCC 389;

          (ii)         Naresh Kumar vs. Department of
                       Atomic Energy and Others : (2010) 7
                       SCC 525;
                                                                           18
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Shri Prasad P. vs. Union of India and Others

(iii) Karnataka Power Corpn. Ltd. through its Chairman & Managing Director and Another vs. K. Thangappan and Another : (2006) 4 SCC 322;

(iv) State of Punjab and Another vs. Balkaran Singh : (2006) 12 SCC 709;

and

(v) Khatri Hotels Private Limited and Another vs. Union of India and Another : (2011) 9 SCC 126.

6(i). I have given thoughtful and anxious consideration to the respective submissions of the Learned Counsel, the pleadings and the records.

(ii) Taking up the preliminary objections first, I am of the view that the question of delay and laches raised on behalf of the Respondents, do not appear to be of substance. The general principles of law on the question stated in the case of Karnataka Power Corpn. Ltd. (supra) and Naresh Kumar (supra), are well- settled. However, the Constitution Bench decision of Ramchandra Shankar Deodhar (supra) sets out succinctly the proposition in holding that the rule that the Court may not inquire into belated and stale claims is not a rule of law, but a rule of practice based on sound and proper exercise of discretion, and that there 19 WP(C) No.17 of 2013 Shri Prasad P. vs. Union of India and Others is no inviolable rule that whenever there is a delay, the Court must necessarily refuse to entertain the petition. Each case must depend on its own facts. We may reproduce the relevant portion of the judgment which reads as under:-

"10. .......................................... There was a delay of more than ten or twelve years in filing the petition since the accrual of the cause of complaint, and this delay, contended the respondents, was sufficient to disentitle the petitioners to any relief in a petition under Art. 32 of the Constitution. We do not think this contention should prevail with us. In the first place, it must be remembered that the rule which says that the Court may not inquire into belated and stale claims is not a rule of law, but a rule of practice based on sound and proper exercise of discretion, and there is no inviolable rule that whenever there is delay, the Court must necessarily refuse to entertain the petition. Each case must depend on its own facts. The question, as pointed out by Hidayatullah, C.J., in Tilokchand Motichand v. H.B. Munshi : [(1969) 2 SCR 824] "is one of discretion for this Court to follow from case to case. There is no lower limit and there is no upper limit ..................... It will all depend on what the breach of the Fundamental Right and the remedy claimed are and how the delay arose." ............................. It may also be noted that the principle on which the Court proceeds in refusing relief to the petitioner on ground of laches or delay is that the rights which have accrued to others by reasons of the delay in filing the petition should not be allowed to be disturbed unless there is reasonable explanation for the delay. ......................"

[underlining mine]

(iii) It is, therefore, trite that the question of delay has to be decided on the facts and circumstances 20 WP(C) No.17 of 2013 Shri Prasad P. vs. Union of India and Others obtaining in each case and the question is one of discretion for the Courts to follow which would depend upon on what the breach of fundamental right and the remedies claimed are and how the delay arose and further, whether any rights have accrued to others by reason of the delay in filing the petition and as to whether or not there is reasonable explanation for the delay. There is no departure from this proposition in the decisions cited on behalf of the Respondents and, also there could not be. In those cases, the Writ Petitions were held not to be maintainable as being hit by delay and laches, there being no explanation for the delays. In the present case, I find that the Petitioner has explained the delay quite satisfactorily. We may reproduce below paragraphs 9 and 10 of the Writ Petition in that regard:-

"9. That after he was trade tested in August, 2001 he was transferred from Sikkim 87 RCC to a remote place in Himachal Pradesh where he had worked from 25.8.2001 to 19.4.2004. Thereafter from 20.4.2004 to 19.6.2007 he was again posted under 91 RCC in Arunachal Pradesh in the concessional area where after he was again transferred to 120 RCC in Tripura in the border of Bangladesh and worked there from 20.6.2007 to 17.8.2010. Thereafter he was transferred to 81 RCC at Leh, 21 WP(C) No.17 of 2013 Shri Prasad P. vs. Union of India and Others Ladakh/Kargil under Project Vijayak in the Pakistan border where he was posted from 18.8.2010 to 3.3.2013. Ultimately he was transferred to 87 RCC in Sikkim and has been working under 87 RCC in Sikkim from 4.3.2013 to till date.

10. That it is stated that the petitioner is a low category employee working as Mason and the places of his posting from 25.8.2001 to till 3.3.2013 were in the remote places of the country wherefrom the petitioner could not dream of anything except hard work."

(iv) The above facts have been reiterated in paragraphs 17 and 26 of the Writ Petition and also in the rejoinder. In their counter-affidavit, there is no specific denial on this by the Respondents except denial of a general nature. In paragraph 20 of the counter- affidavit, it has rather been stated that the statements are matters of record.

(v) As would appear from paragraph 9, he was posted to a remote place in Himachal Pradesh from 25- 08-2001 soon after his trade test. After that he had been moving under posting orders to different border areas, namely, Arunachal Pradesh, Tripura and Leh until 04-03-2013 when he was posted to Sikkim. After reaching Sikkim, it appears that prompt action in instituting legal proceedings for redressal was taken by 22 WP(C) No.17 of 2013 Shri Prasad P. vs. Union of India and Others him as would be evident from the fact that legal notice was issued by him through his lawyer on 18-03-2013. This having not acceded to, Writ Petition was filed on 20-06-2013 before this Court at Gangtok which is conveniently accessible to him. I have no hesitation to hold that considering the predicament and the circumstances that he was in, it could not have been possible for him to do more than making representations, diligently following up with his grievances and, as soon as he could, he has approached this Court for relief.

(vi) One can but imagine the difficult conditions that the Petitioner was working in in the frontiers of the country located in cold remote mountains and the desolate borders of Bangladesh in the plains. Discretion vested in the Courts requires to be exercised on the facts of each case on its own merits. The present case is one where exercise of discretion is necessarily called for in favour of the Petitioner and, accordingly in doing so, hold that the objection on delay and laches raised on behalf of the Respondents No.1 to 6 cannot be sustained.

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(vii) On the merits of the case, it is not in dispute that the Petitioner's case had not been considered for promotion by HQ CE (P) Swastik as his T. T. Sheet had been sent belatedly to the Record Office at Pune. This is evident from the letter of the AE (Civ), 2IC addressed to the Petitioner filed as Annexure P1 in reply to his application dated 10-05-2005 addressed to the Grievances Cell, HQ DGBR, Respondent No.4. We may reproduce below the relevant portions of the letter:-

"2. ................................................................

(ii) GREF Records vide letter No 2061/TT/89/CA2 dated 03 Jan 2001 had issued instructions to all Projects to submit TT Sheets of eligible candidates for consideration for promotion and last date of receipt of TT sheets for consideration in DPC Phase II/2001 was on 31 August 2001. The individual was trade tested for promotion from Mason to Overseer and his trade test sheet submitted by HQ CE (P) Swastik vide letter No 14013/DPC/141/DTD dated 01 Sep 2001, received at GREF Records on 11 Sep 2001. Due to late receipt of TT sheet in respect of the individual, his name could not be included in DPC Phase-II/2001. Sufficient vacancies for Overseers were available during DPC Phase II/2001 but TT sheet in respect of the individual (MSL) Srl No.686 was not received in time and his juniors who sent TT sheets timely as per details given below have been considered for promotion to Overseer.

24 WP(C) No.17 of 2013

Shri Prasad P. vs. Union of India and Others _______________________________________ S/No | MSL No | GS No. Rank & Name _0

(a) 691 GS-176663N Mason Kripal Singh

(b) 705 GS-176887K Mason Biju R

(d) 713 GS-172201A Mason Ramesh Singh

(e) 717 GS-177212A Mason T Suresh_____ GREF Records vide their letter No 2057/NSP/THUR/FA2 dated 13 Jun 2014, had already intimated to HQ CE (P) Dpk about the late receipt of his TT sheet and non-inclusion of his name for promotion to Overseer during DPC Phase II/2001."

[underlining mine]

(viii) The representations submitted by the Petitioner thereafter were responded to by the Respondents stating that the DPC held in 2008 was not approved due to review/merger of trades as per Sixth Pay Commission recommendations. As submitted by the Petitioner, the Respondent No.5 appears to be taking untenable and conflicting stands as would appear from the letter dated 17-07-2013 of the Senior Record Officer, Record Office, GREF, Pune addressed to HQ 764 BRTF commenting on the Writ Petition, where, inter alia, it has been stated as under:-

"2. ........................................................................

(b) The case for review of inter-se-

seniority in respect of GS-160943X Supdt E&M II Raju K was initiated to HQDGBR vide our letter No. 2065/NSP/VOL-

46/68/FA2 dated 05 Jul 2008 (Copy enclosed). In response to that HQ DGBR 25 WP(C) No.17 of 2013 Shri Prasad P. vs. Union of India and Others vide their Sig No.261362/EG2 dated 25 Jul 2008 and 261319/EG2 dated 05 Aug 2008 (copy enclosed) instructed to initiate all such similar case, if any, in one lot. In view of above, this office vide letter No. 2065/NSP/VOL-46/86/FA2 dated 07 Aug 2008 requested all projects to pursue the MSLs and R & P Rules and submit cases if any. Same was intimated to HQ DGBR vide this office letter No.2065/NSP/VOL-46/85/FA2 dated 07 Aug 2008 (copy enclosed)

(c) In view of the matter explained above and references, it is evident that the above said letter No. 2065/NSP/VOL- 46/86/FA2 dated 07 Aug 2008 was issued for the indl whose name was erroneously left out. Further it is pertinent to mention here that Review DPC is only held for the cases where some unintentional mistake of omitting the name occurs. Whereas in the instant case of GS-176566W Mason Prasad P, the question of Review DPC does not arise as his name was not considered for promotion to Overseer during DPC 2001 due to late receipt of Trade Test Sheets. In view the representation dated 10 Sep 2008 of petitioner was not considered."

[underlining mine]

(ix) From the contents of the letter reproduced above, it is apparent that a Review DPC had been contemplated in August, 2008 to consider the cases of those individuals whose name were 'erroneously left out' for some 'unintentional mistake'. The case of the Petitioner obviously was not considered as an 'unintentional mistake' despite the admitted fact that his T. T. Sheet had been sent by HQ CE (P) Swastik 26 WP(C) No.17 of 2013 Shri Prasad P. vs. Union of India and Others only 01-09-2001 which is one day after the deadline. I am unable to accept this stand of the Respondents and find it rather remarkable in as much as the Petitioner is being blamed for their own negligence. Had it been the case that the Petitioner had failed to sit for the trade test or that it was on account of his action that his T. T. Sheet was dispatched late, perhaps the Petitioner could be held responsible but, admittedly it was the HQ CE (P) Swastik, a subordinate of the Respondents, that had caused the delay for having dispatched it only on 01-09-2001 when it ought to have been done so earlier to ensure that it reached the Record Office on or before 30-08-2001. It cannot be heard to say that the delay was not unintentional. If it was intentional, then it would be worse for the Respondents. There is also another aspect to this. When the Petitioner's T. T. Sheet reached on 11-09-2001 instead of 30-08-2001 due to the fault of HQ CE (P) Swastik, the Record Office at Pune could have exercised its discretion to take up the case of the Petitioner having regard to the fact that the Petitioner was not at fault for the delay, he was senior-most who had done considerably well in his 27 WP(C) No.17 of 2013 Shri Prasad P. vs. Union of India and Others trade test and that his non-consideration would cause him grave prejudice in matters of promotion.

(x) The stipulation that the letter should reach on 31-08-2001 is not a statutory mandate but an administrative decision and purely procedural. While following procedures it ought to be ensured that no injustice is occasioned to the employees when promotion is the only aspiration for them, particularly, when the employees of the category to which the Petitioner belongs and who are serving in difficult areas for the cause of the Nation. In my view, the stand of the Respondents is too pedantic in stating that the Review DPC recommendations held in 2008 and 2009 were rejected only because there was a Cadre Review due to merger of certain trades when the injustice that the Petitioner had suffered was in the year 2001 when such recommendations did not exist. The consequence which the Petitioner has faced is quite obvious. He is now languishing quite demoralised in the same post, that of a Mason, for more than 19 years without an avenue for promotion. The Respondents have not spelt out as to what his next promotion would be thereby 28 WP(C) No.17 of 2013 Shri Prasad P. vs. Union of India and Others implying that such avenues did not exist. In K. K. Roy (supra), the cases of Council of Scientific and Industrial Research vs. K.G.S. Bhatt : (1989) 4 SCC 635 and O. Z. Hussain (Dr.) vs. Union of India : 1990 (Supp) SCC 688 were aptly quoted which are reproduced below:-

"4. .......................... In almost an identical situation, a Bench of this Court in Council of Scientific and Industrial Research v. K.G.S. Bhatt held: (SCC pp.638- 39, para 9) "It is often said and indeed, adroitly, an organisation public or private does not 'hire a hand' but engages or employs a whole man. The person is recruited by an organisation not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personnel development as well. (See Principles of Personnel Management Flipo, Edwin B., 4th Edn., p.

246.) Every management must provide realistic opportunities for promising employees to move upward. "The organisation that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low morale, and ineffectual performance, among both non-

                       managerial      employees     and      their
                       supervisors."        (See        Personnel

Management, Dr. Udai Pareek, p. 277.) There cannot be any modern management much less any career planning, manpower development, 29 WP(C) No.17 of 2013 Shri Prasad P. vs. Union of India and Others management development etc. which is not related to a system of promotions."

5. The matter came up for consideration again in O.Z. Hussain (Dr.) v. Union of India wherein this Court in no uncertain terms laid down the law stating: (SCC pp.691-92, para 7) "Promotion is thus a normal incidence of service. There too is no justification why while similarly placed officers in other ministries would have the benefit of promotion, the non-

medical 'A' Group scientists in the establishment of Director General of Health Services would be deprived of such advantage. In a welfare State, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenue for this category of officers.""

(xi) It has further been held that a State within the meaning of Article 12 of the Constitution of the India should create promotional avenues having regard to its constitutional obligation on the anvil of the rights guaranteed under Articles 14 and 16 of the Constitution.

(xii) In Ramchandra Shankar Deodhar (supra) delay of more than ten or twelve years was condoned as there was sufficient explanation for the delay in making a claim for promotion unjustly refused to the 30 WP(C) No.17 of 2013 Shri Prasad P. vs. Union of India and Others Petitioner, the delay having found to have been reasonably explained.

(xiii) As would be evident from the earlier discussions, the case of the Petitioner was not at all considered by the DPC as his case was not recommended simply because it was received beyond the period stipulated by the Record Office. The delay as we have noted and, admitted on the part of the Respondents, was not attributable to the Petitioner but to the HQ (P) Swastik for delayed dispatch of his T. T. Sheet. The Record Office has also not come out with the information as to when the DPC was held. Was it held before 11-09-2011 or after? It clearly smacks of unfairness in having withheld such relevant and most material information. The next question that would naturally arise is as to whether deadline of 31-08-2001 was inviolable or did or did not the Record Office have the discretion to extend the date if the Review DPC was being held after 11-09-2001. This question has already been answered earlier in holding that the deadline not being a mandatory statutory prescription but based on an administrative decision, the authorities would be 31 WP(C) No.17 of 2013 Shri Prasad P. vs. Union of India and Others possessed of the discretion to extend the date under circumstances as the present.

(xiv) It is a settled position of law that the right of eligible employees to be considered for promotion is a part of their fundamental right guaranteed under Article 16 of the Constitution of India. In Hemraj Singh Chauhan (supra) it has been held as under:-

"35. The Court must keep in mind the constitutional obligation of both the appellants/Central Government as also the State Government. Both the Central Government and the State Government are to act as model employers, which is consistent with their role in a welfare State.

36. It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article14 of the Constitution.

37. In Govt. Branch Press v. D. B. Belliappa [(1979) 1 SCC 477] a three-Judge Bench of this Court in relation to service dispute, may be in a different context, held that the essence of guarantee epitomised under Articles 14 and 16 is "fairness founded on reason" (See SCC p.486, para 24).

38. It is, therefore, clear that legitimate expectations of the respondents of being considered for promotion has been defeated by the acts of the Government and if not of the Central Government, certainly the unreasonable inaction on the part of the 32 WP(C) No.17 of 2013 Shri Prasad P. vs. Union of India and Others Government of State of Uttar Pradesh stood in the way of the respondents' chances of promotion from being fairly considered when it is due for such consideration and delay has made them ineligible for such consideration. Now the question which is weighing on the conscience of this Court is how to fairly resolve this controversy."

(xv) There is another aspect which also makes the stand of the Respondents untenable. It is the case of the Petitioner that Respondent No.12, Pannalal Sharma (GS-177682L), was promoted in the year 2002. This has not been denied by the Respondents and has rather been explained in reply to the legal notice as under:-

"Para 04 : As regards promotion of GS-

177682L Carp Pannalal Sharma is concerned, he had passed mandatory trade test and same received by GREF Records before the cutoff date i.e. 31 Aug 2001. Accordingly, he promoted to the trade of Overseer in same DPC i.e. DPC-2001 with inter se seniority wef 13 Oct 2001 on the basis of fulfillment of all other eligibility criteria as laid down in R&P Rules- 1982 and assumed the rank of Overseer wef 22 Apr 2002.

Whereas Trade Test sheet in respect of GS-176566W MSN Prasad P duly passed was received on 11 Sep 2001 under HQ CE (P) Swastik letter No.14013/DPC/ 141/E1G dated 01 Sep 2001. It is pertinent to mention that TT sheet received after cutoff date are not considered for DPC. Due to late receipt of TT sheet, name of the 33 WP(C) No.17 of 2013 Shri Prasad P. vs. Union of India and Others indvl was not considered for promotion to Overseer during DPC 2001."

(xvi) From the reply, it is evident that although the case of Respondent No.12 was considered in the DPC 2001, he was given the rank of Overseer only on 22- 04-2002. No explanation has been forthcoming as to why there was delay in respect of this Respondent in giving the promotion. It is not their case that all those considered in DPC 2001 were granted promotion with effect from April, 2002. It can reasonably be inferred that the case of Respondent No.12 was not cleared for some reason under which circumstances the case of the Petitioner's could have been taken up. To the contrary, the Respondents have chosen to take the stand most stoicly of the delay in receipt of T. T. Sheet in respect of the Petitioner after the deadline of 31-08-2001. The purported recommendation of the Petitioner's case by the Review DPC held in 2008 was not accepted by the Respondent No.4 simply because there was proposal for merger of some trades as would appear from letter dated 09-05-2013, Annexure R1. In other words, in 2008 the post of Overseer did exist.

WP(C) No.17 of 2013

Shri Prasad P. vs. Union of India and Others (xvii) The provision for Review DPC, as per Swamy's Handbook 2015 (for Central Government Staff) which is the same as it existed in the earlier editions, is provided under Section 8 which is reproduced below:-

"8. Review DPC and Second DPC Review DPC will be held only if the DPC has not taken all material facts into consideration or if certain facts have not been brought to the notice of DPC or if there have been grave errors in the proceedings of the DPC. Review DPCs should be convened also to rectify unintentional mistakes such as--

                       (a)     where    eligible  persons          were
                               omitted to be considered;
                       (b)     where ineligible persons            were
                               considered by mistake;
                       (c)     where the seniority of a person is

revised with retrospective effect resulting in variation with the list placed before the DPC;

(d) where some procedural irregularity was committed by DPC;

(e) where adverse remarks in the APARs of an officer were toned down or expunged after the DPC had considered his case;

(f) where certain vacancies had not been reported due to error or omission of vacancies that existed at the time of holding DPC.

........................................................." (xviii) On a bare perusal of the above, Review DPC will be held only (a) if certain facts having not been brought to the notice of DPC; (b) if there have been 35 WP(C) No.17 of 2013 Shri Prasad P. vs. Union of India and Others grave error in the proceeding of the DPC; and (c) to rectify unintentional mistake, inter alia, such as (i) where eligible persons were omitted to be considered or, (ii) where some procedural irregularity was committed by the DPC. Thus, the Review DPC would relate to a DPC already held in the event of the circumstances arising as indicated in the Section and the unintentional mistakes enumerated in the sub- paragraphs thereunder.

(xix) As noted already, the persistent stand of the Respondents has been that the Petitioner's case was not put up because the T. T. Sheet pertaining to him was received late. Letter dated 31-07-2013, Annexure R2, sent by the Senior Record Officer, Record Office, GREF, Pune addressed to HQ 764 BRTF in most unequivocal terms states that -

"2. Photocopy of TT Sheet in respect of GS- 176566W Mason Prasad P which was received under HQ CE (P) Swastik letter No. 14013/DPC/141/E1G dated 01 Sep 2001 for conducting DPC Phase-II/2001, is forwarded herewith as desired please."

(xx) Therefore, from the above, it reveals that the Petitioner's T. T. Sheet was sent only on 01-09-2001 by 36 WP(C) No.17 of 2013 Shri Prasad P. vs. Union of India and Others HQ (P) Swastik when in fact it ought to have been sent much earlier in order to ensure that it reached the Record Office at Pune before 31-08-2001. Even then admittedly T. T. Sheet had reached the Record Office on 11-09-2001 as already noted above. This fact ought to have been brought to the notice of the DPC by the Record Office which obviously was not done thereby resulting in the Petitioner, an eligible person, being omitted to be considered by the DPC.

(xxi) Since the Petitioner's case pertains to the DPC of 2001 from which he had been omitted for consideration for the fault of the Respondents, the contention that by the recommendations of the Sixth Pay Commission certain trades have been merged, would have no consequence as the Petitioner's case would have to be considered under the circumstance obtaining in 2001 and as per the rules existing then. (xxii) In Y. V. Rangaiah (supra) in a similar circumstance, it has been held as under:-

"9. ...................................... The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel 37 WP(C) No.17 of 2013 Shri Prasad P. vs. Union of India and Others for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the State-wide basis and, therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules."

7. It is not disputed that the Respondents No.7 to 12 are still in the rank of Overseers to which they were promoted in the DPC of 2001 from the consideration of which the Petitioner was wrongfully deprived due to the fault of the Respondents and, therefore, the plea of administrative difficulty that may arise in the event of the Writ Petition being allowed, does not appear to have any substance.

8. In the above facts and circumstances, the Petitioner is entitled to be considered by a Review DPC constituted under Section 8 as contained in Swamy's Handbook 2015.

9. Accordingly, the Respondents No.1 to 6 are directed to constitute a Review DPC in relation to the DPC, Phase-II/2001 as provided under the aforesaid 38 WP(C) No.17 of 2013 Shri Prasad P. vs. Union of India and Others provision and consider the case of the Petitioner afresh. Although, this prayer has not been made in the Writ Petition, the relief is moulded in the interest of justice by culling it out from the peculiar facts and circumstances and the grievances expressed in the Writ Petition which this Court has the necessary jurisdiction to do.

10. With the above direction, the Writ Petition is disposed of.

11. No order as to costs.

( S. P. Wangdi ) Judge 03-12-2014 Approved for reporting : Yes Internet : Yes ds

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