Delhi High Court
Ms. Sweety Bhalla vs Industrial Financial Corporation Of ... on 8 January, 2019
Equivalent citations: AIRONLINE 2019 DEL 7, 2019 (2) ADR 740, (2019) 2 SCT 299, (2019) 4 SERVLR 307
Author: Suresh Kumar Kait
Bench: Suresh Kumar Kait
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 11.12.2018
Pronounced on: 08.01.2019
+ W.P.(C) 4287/2015
MS. SWEETY BHALLA ..... Petitioner
Through Dr.Aurobindo Ghose, Adv.
versus
INDUSTRIAL FINANCIAL CORPORATION
OF INDIA LTD. (IFCI) ..... Respondent
Through Mr.Anurag Sharma, Adv. with
Ms.Ruchira Gupta, Adv. for R-2.
Mr.Rahul Narayanan, Adv.
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
JUDGMENT
1. Vide the present petition, the petitioner seeks direction thereby directing the respondent to grant promotion to the petitioner for the post of AGM in terms of the Recruitment rules in a time bound manner after fixation her due seniority in the organization since the date of appointment and the rule of reservation in promotion which is applicable in the case of persons with disabilities. He further seeks direction to the respondent thereby setting aside the Office Order dated 23.02.2015, 12.03.2015 and 01.04.2015. He also seeks direction thereby directing the respondent for W.P.(C) 4287/2015 Page 1 of 23 setting aside the order No. IFCI/HRD/PF/SB/2015-250304 dated 25.03.2015 of the respondent communicating the performance ratings to the petitioner for the years 2010-11, 2011-12 and 2013-14.
2. The case of the petitioner is that the petitioner is a woman having 100 percent visual disability, who was appointed as a telephone operator-cum- receptionist (hereinafter referred as TOCR) in the respondent organisation on 24.11.1987. Department of DOPT, Government of India, issued OM on 20.11.1989 providing promotion for persons of physically handicapped within Group D, from Group D to C and within Group C. On 01.06.1995, Memorandum of Settlement (hereinafter referred as MoS) was signed between the Employees Association and Management. Accordingly, eligibility for conversion of typist and telephone operator to the clerical cadre is Clerks-5 years of service as TOCR for graduates (Para 7.1 and 7.2). Benefit of seniority, for service as Typist on conversion to the post of clerk - Full benefit of service beyond 5 years of service as TOCR (7.7).
3. On 07.06.1995, office order was issued providing for automatic conversion of those confirmed graduate TOCRs who have completed 5 years of service on 31.12.1994. The petitioner having completed almost 8 years of service and being a law graduate became eligible for conversion to W.P.(C) 4287/2015 Page 2 of 23 Clerk grade on 31.12.1994. Vide office order dated 08.08.1995, other employees were converted as per MoS, the Petitioner however, despite being eligible was not converted to the post of clerk. Being aggrieved, she made a representation to the General Manager on 09.10.1995. In reply dated 15.12.1995, Admin. Manager stated that her case was considered but the Committee did not recommend her name for conversion since the petitioner is completely blind and would not be in a position to discharge the duties of a clerk. On 29.10.1996, the petitioner again made a representation to the Chief General Manager, IFCI stating that she was eligible for conversion as well as promotion to the post of Industrial Finance Assistant. The respondent again issued office order for conversion on 19.12.1996 but the petitioner's name did not appear. Accordingly, she made representation dated 18.12.1996 to the Chief General Manager, (A&P). The petitioner in her another representation dated 14.02.1997 stated that her colleagues had been converted but her case was declined on the ground of her being a blind person. Thus, she stated that it was in violation of Clause 47(2) of the Persons with Disability Act, 1996.
4. However, the petitioner was finally converted on 06.09.1999 to the post of clerk after delay of 4 years whereas conversion was due in 1995 W.P.(C) 4287/2015 Page 3 of 23 itself. Thereafter, on 04.10.1999, the petitioner asked for her conversion from retrospective effect i.e. 30.06.1995 and promotion to IFA w.e.f. 01.01.1997. The said request was declined on 25.11.1999.
5. On 21.09.2000, the petitioner was promoted to the next post of Industrial Finance Assistants (IFAs), whereas, this Promotion was due on 01.01.1997. Accordingly, the petitioner made representation on 18.10.2000 stating that as her conversion to the post of Clerk was delayed and the same had affected her seniority for the post of IFA and her juniors who had joined later than her had become her seniors. On 16.01.2001, the petitioner's Seniority in the post of clerk and IFA was declined. Thereafter, the petitioner again represented on 16.06.2004, for her conversion and promotion to the post of IFA from retrospective effect as it was affecting her further promotion.
6. Since there was no response from the respondent side, on 16.08.2004, the petitioner filed a complaint before the Court of Chief Commissioner for Persons for Disability (hereinafter shall be referred as CCPD). The said Commissioner passed an order dated 12.04.2006, directing that the respondent shall consider the complainant/petitioner for promotion to the subsequent higher posts as and when she became eligible as per the then W.P.(C) 4287/2015 Page 4 of 23 applicable rules without any distinction as regards her eligibility on the grounds of her disability. Accordingly, in view of the directions, the conversion of the petitioner to the post of Clerk was given to retrospective effect from 31.06.1995 instead of 06.09.1999. Her promotion to IFA was given retrospective effect from 01.09.1997 instead of 21.09.2000.
7. Learned counsel for the petitioner submits that the petitioner was though given retrospective conversion and promotion for the post of IFA, but this could become clear only in the year 2006. By then she had already lost several opportunities for the next post of Assistant Manager. On 15.05.2000, a new MOS entered into between the Employees Union and the Management w.e.f. 26.04.2000. Accordingly, new eligibility for promotion from the post of IFA to the Assistant Manager was following:
(a) 9 years of service as IFA for 32% vacancies to be filled up according to seniority
(b) Minimum 5 years as IFA for 48% vacancies through written test.
8. Counsel for the petitioner submits that as per the retrospective promotion order (which could be passed in 2006 only) the petitioner was entitled to appear for the written examination from 2002 itself. However, W.P.(C) 4287/2015 Page 5 of 23 since the respondent remained adamant until the CCPD's order in 2006, the petitioner could not avail the opportunity to appear for the written exam. After retrospectively effected to her promotion in 2006, the petitioner represented on 12.04.2007 for her promotion to the next post of Assistant Manager. But in complete violation of order passed by the CCPD, and the relevant laws, the respondent replied on 01.05.2007, to the petitioner saying that her revised seniority did not made her eligible for promotion to the post of Assistant Manager earlier. Being aggrieved, the petitioner made another representation dated 12.04.2007, seeking consideration for the post of Assistant Manager. Finally, on 29.06.2007, the petitioner was promoted to the post of Assistant Manager in 48% quota having successful passed the written test.
9. Learned counsel further submits that the petitioner could be promoted to the post of Assistant Manager in 2007 only, through written test, although she was eligible for it since 2002. Thereafter, the petitioner made representation dated 23.09.2009, requesting for promotion to the post of Manager. She complained discrimination by stating that their juniors got promoted from Assistant Manager to Manager but her name was arbitrarily not recommended. The petitioner claimed that had there been justice with W.P.(C) 4287/2015 Page 6 of 23 her she would have promoted to the post of Assistant Manager in 2002, to the Post of Manager in 2007 and the post of AGM in September 2009. In her another representation dated 10.12.2010, the petitioner stated that her juniors were promoted from the post of Assistant Manager to Manager but she was not considered despite being eligible for the post in all respects. In another representation dated 09.03.2011, the petitioner stated that in 2009 and 2010 she was arbitrarily not promoted despite having necessary qualification and experience while her juniors were promoted to the post of Manager.
10. It is further submitted that new promotion Policy of the respondent came into force on 15.07.2014 and as per said policy, the minimum eligibility for promotion from Assistant Manager to Manager became 3 years, on the basis of average of three years performance appraisal Ratings. On 25.03.2015, three years performance Appraisal Ratings were disclosed to the Petitioner after repeated request. The petitioner was arbitrarily not rated for the year 2010-11.
11. Learned counsel for the petitioner submitted that the present petition is a saga of the struggles of a 100% visually impaired (Blind) female employee to obtain justice, against the blatant discrimination and brazen violations of the PWD Act, practised by the management against her. In W.P.(C) 4287/2015 Page 7 of 23 stark contravention o the respondent's own recruitment rules, the petitioner was denied both conversion to the post of clerk and subsequent promotion to the post of IFA. While on the posts, all the non-disabled counterparts of the petitioner were converted from the post of TOCR to clerk, but the petitioner was left out. Even after the coming into operation of the PWD Act in 1996, it was only after tremendous efforts, the petitioner was able to get converted the post of TOCR to clerk on 06.09.1999 after delay of four years. She was promoted to the post of IFA on 21.09.2000 even though it was due in 1997. The petitioner requested the management to ante date her conversion from TOCR to clerk and promotion to IFA from the dates when she was first entitled. When they refused, she was compelled to knock the doors of the Chief Commissioner for persons with disabilities, who after hearing the parties decided her case by its significant order based on the principle of 'Relation Back' dated 12.04.2006, which is as follows:-
"The respondent is therefore directed to consider the complainant for conversion from TOCR to the post of Clerk from the date she became eligible along with her non- disabled counterparts. Consequent to her conversion from the retrospective date, the respondent shall consider the complainant for promotion to the subsequent higher posts as and when she became eligible as per the then applicable rules without any distinction as regards her eligibility on the ground of her disability. The respondent shall submit a compliance report to this Court within three months from W.P.(C) 4287/2015 Page 8 of 23 the date of receipt of this Order."
12. Learned counsel for the petitioner submits that the respondent did not challenge the above said order, thus, the same became final and binding on the parties. In view of the aforesaid terms, the respondent passed orders on 28.08.2006 retrospectively converting the post of TOCR to clerk from 30.06.1995 and promote the petitioner from clerk to IFA from 01.09.1997. The petitioner persistently pleaded with the management that her promotion to the post of Assistant Manager be made ante dated from 29.06.2007 to 2002 as she completed five years as IFA and qualified for written test, in view of the operative portion of the order of the Chief Commissioner of PWD.
13. Finding no resolution, the petitioner filed the present petition and during the pendency of the present petitioner, the petitioner was further promoted from Assistant Manager to Manager on 29.04.2016.
14. Learned counsel for the petitioner submits that as per the principle of relation back as laid down by the order of the Chief Commissioner of PWD dated 12.04.2006, the petitioner is entitled to ante-dating of her promotion to the post of Manager in the year 2007 and for further promotion to the post of Assistant General Manager (AGM) with effect from 2009. W.P.(C) 4287/2015 Page 9 of 23
15. Learned counsel further submits that the principle of „relation-back‟ was mention in order of the chief Commissioner for Disabilities dated 12.04.2006. The Black's Law Dictionary defines „relation back‟ as:- "The doctrine that an act done at a later time is, under certain circumstances, treated as though it occurred at an earlier time". This doctrine has international relevance and application and has been highlighted in the 2010 judgment of the US Supreme Court in the case of "Krupski vs. Costa Crociere S.P.A", wherein the American Supreme Court allowed Krupski's amendment to add a new defendant, after the period of limitation was over, to relate back to the time of the original filing, thereby satisfying the applicable statute of limitations. In India, this doctrine or rule has been incorporated in a number of legislations and service jurisprudence including number of Judgments of the Hon'ble Supreme Court of India. In the case of Delhi Jal Board vs. Mahinder Singh: (2007) 7 SCC 210, the Supreme Court applied the Doctrine of Relation Back in service Jurisprudence by holding that the findings of a disciplinary enquiry exonerating an Officer would have to be given effect to as they relate back to the date on which the charges are framed.
16. Learned counsel submits that the order of the Chief Commissioner of W.P.(C) 4287/2015 Page 10 of 23 Disabilities dated 12.04.2006 is based on the Doctrine of Relation-Back, that the petitioner's promotions to subsequent higher posts shall be considered as and when she became eligible as per the then applicable rules. The said order dated 12.04.2006 is a conditional order for her conversion (from TOCR to clerk) from the retrospective date. If the respondent did not fulfil this condition and did not convert the post of the petitioner from TOCR to clerk with effect from 30.06.1995, the first date of her eligibility, there was no question of relation back of the subsequent promotions to higher posts. However, once the respondent had so converted the petitioner from TOCK to clerk with effect from 30.06.1995, the respondent was bound by Promissory Estoppel as per the Chief Commissioner's Order dated 12.04.2006.
17. While conclude his arguments, counsel for the petitioner submits that the petitioner obtained a rating greater than 4 in her confidential reports during the period of last 3 years PAR as Assistant Manager and then Manager. Whereas the promotion policy of April 2000 mandates that the promotion from the post of manager to the post of AGM shall be made after 3 years (rating not less than 4), after 4 years (rating not less than 3.5) & 5 years (rating not less than 3) in last three years PAR. However, the W.P.(C) 4287/2015 Page 11 of 23 respondent has been promoting the employees who do not even qualify the eligibility criteria as set out in the policy, as under:-
i. Himanshu Sharma- Joined as Manager on 12.3.2007 promoted to the post of AGM on 9.1.2009. ii. Sarita Sahu- Joined as Manager on 12.10.2007 and promoted to the post of AGM on 3.11.2010. iii. Anil Kumar Chauhan - Joined as Manager on 12.1.2008 and promoted to the post of AGM on 11.3.2010.
iv. Priyanka Chaturvedi - Joined as Manager on 7.4.2008 and promoted to the post of AGM on 03.11.2010. v. Nitin Aggarwal - Joined as Management Trainee on 6.1.2009 and promoted to the post of AGM on 2.11.2011.
vi. Priyanka Sharma - Joined as Manager on 10.1.2008 and promoted to the post of AGM on 9.2.2011.
Thus, learned counsel submits that the petitioner has been discriminated at every stage and her being women and 100% visually challenged person. Thus, the present petition observes to be allowed by issuing appropriate directions against the respondent.
18. On the other hand, learned counsel for the respondent submits that the petitioner was working as Industrial Finance Assistant as of 28.08.2006, with seniority dating back to 01.09.1997. She has not challenged the Respondent's office order of 28.08.2006 restoring her seniority. Thus, the W.P.(C) 4287/2015 Page 12 of 23 petitioner has no grievance as of 29.06.2007, for the reasons as under:-
"a. As per Memorandum of Settlement of 26.4.2000 ( Annexure P11), on completion of 9 years of service as IFA, IFAs were eligible for promotion to Assistant Managers, or in the alternative, IFAs with minimum 5 years of service could write a written exam for the purpose. b. However, it is pertinent to note that the MOS of 26.4.2000 detailed the following method of filing up the post of Assistant Managers, that is i. 32% through seniority ii. 48% through written test iii. 20% through direct recruitment c. The Petitioner had applied in 2007 for promotion to the post of Assistant Manager on the basis of her revised seniority from 1.9.1997, on the basis that she had by then completed 9 years of service as an IFA.
d. While the Petitioner had completed 9 years of service, 32% posts that are available are filled up according to inter se seniority amongst all the IFAs who have completed 9 years of service. In other words, if for example 4 seats are available in the 32% quota, those 4 seats would go to the 4 senior most amongst the IFAs who had completed 9 years of service. The Petitioner would have to be amongst the 4 senior most IFAs eligible, to be automatically promoted. She was not amongst the senior most at the time to qualify for promotion in the 32% category.
e. As such, on 12.4.2007 the Petitioner was directed to appear for the written exam as 48% of the seats were to filled through this written exam (Annexure P12 Colly at page 134)."
19. Learned counsel submits that this office order has not been challenged. The petitioner has sat for the exam, and cleared the exam as per office order dated 29.06.2007. Neither the exam, nor its results have been W.P.(C) 4287/2015 Page 13 of 23 challenged. The petitioner has been an Assistant Manager as of 29.06.2007. For promotions from Assistant Manager to Manager, the various promotion circulars at Annexure R-2 are relevant. It is further submitted that the Petitioner's grievance is denial of promotion from Assistant Manager to Manager, for which the following is relevant:-
"a. The Petitioner applied for promotion to Manager in 2013-14, for which the years of service eligibility criteria was linked to her performance interview, i.e. if she rated "Excellent" (Not less than 4), she needed 4 years of service; if rated "Very Good" (Not less than 3.5) she needed 5 years of service, and if rated "Good" she needed 6 years of service (Not less than 3). The circular dated 12.5.2000 also states "The selection for promotion to the next higher post will be based on merit...the number of candidates to be called for interview shall be 1.5 times the number of vacancies." (Annexure R2 at Page 34, Counter affidavit) b. The petitioner's ratings for the years 2007 - 2014 are as follows:
1.4.2006 - 31.3.2007 3.40 1.4.2007 - 30.6.2007 3.3 1.7.2007- 31.12.2007 3.0/3.2 1.1.2008 - 30.6.2008 4.2 April 2008 - March 2009 2.9 2009 - 2010 3.3.
2010-11 Not rated 2011 - 12 2 2012 - 13 No person in the W.P.(C) 4287/2015 Page 14 of 23 organization rated due to organizational transition 2013 - 14 4.08
c. For the Petitioner's assessment in 2013-14, her ratings:
April 2008 - March 2009 2.9 2009 - 2010 3.3.
2010 - 11 Not rated and consequently
could not be included.
2011 - 12 2
The average of these ratings was 2.73 out of 5, which converted to a rating out of 70 amounted to 38.27. Her marks in interview out of 30 were 16, giving her a total of 54.27 out of 100.
d. The Petitioner scored higher than one other Applicant for 2013 - 14, but could not score higher than other applicants. The consolidated assessment scores are at Annexure R7, Page 54. Neither this process nor its result has been challenged by the Petitioner.
e. The Petitioner reapplied in 2014 - 15. Similarly, the ratings that were considered were:
2011 -12 2
2012 - 13 No person in the organization rated due
to organizational transition
2013 - 14 4.08
The average of her past three years performance was 3.04 out of 5, which out of 70 translated to 42.56. She scored 15 in the interview giving her a total score out of 100 of 57.56. The Petitioner ranked higher than one other applicant, who happens to be the same applicant she ranked higher than in W.P.(C) 4287/2015 Page 15 of 23 the previous year. The details of the assessment are at Annexure R6, Page 50."
20. Counsel for the respondent further submitted that the petitioner is now aggrieved by the results of her assessment in 2015. In substance there is no other grievance. The Petitioner has submitted that her assessment ratings are motivated by bias against visually impaired employees. However, it is pertinent to note that the petitioner has been assessed by different panels, but all have been consistent. The petitioner was again called for interviews in the promotion exercise for the year 2015-16. As per proceedings of the Interview Committee held on the 19th March 2016, the Petitioner has been successful in being shortlisted for promotion from Assistant Manager to Manager. She was consequently promoted on the 29th of April 2016 to the post of Manager. This by itself demonstrates that the process of selection is merit based and as and when the petitioner performs well in competitive process of selection, she would be duly rewarded as per the processes of Respondent. The petitioner is seeking direct promotion to the post of Assistant General Manager, by-passing the post of Manager completely for which she was interviewed thrice, and been successful on the third attempt. Therefore, without demonstrating any clear entitlement under the regulations to the relevant promotion, there is no merit in the present petition, therefore, W.P.(C) 4287/2015 Page 16 of 23 it deserves to be dismissed.
21. I have heard learned counsel for the parties.
22. The petitioner was appointed as a telephone operator-cum-receptionist in the respondent organisation on 24.11.1987. Since, pursuant to office order dated 07.06.1995, the post of the petitioner was not converted to Clerk grade, she made various representations and finally petitioner was converted on 06.09.1999 to the post of clerk after delay of 4 years whereas conversion was due in 1995 itself. Being aggrieved, the petitioner asked for her conversion from retrospective effect i.e. 30.06.1995 and promotion to IFA w.e.f. 01.01.1997. The said request was declined on 25.11.1999. On 21.09.2000, the petitioner was promoted to the next post of Industrial Finance Assistants (IFAs), whereas, the said Promotion was due on 01.01.1997. The petitioner again made various representations for her conversion and promotion to the post of IFA from retrospective effect but there was no response from the respondent side. Having no alternative, the petitioner filed a complaint before the Court of Chief Commissioner for Persons for Disability. The said Commissioner passed an order dated 12.04.2006, directing that the respondent shall consider the petitioner case for promotion to the subsequent higher posts as and when she became W.P.(C) 4287/2015 Page 17 of 23 eligible as per the then applicable rules without any distinction as regards her eligibility on the grounds of her disability. Consequently, the conversion of the petitioner to the post of Clerk was given to retrospective effect from 31.06.1995 instead of 06.09.1999. Her promotion to IFA was given retrospective effect from 01.09.1997 instead of 21.09.2000.
23. Had the petitioner got promotion timely, she would have become entitled to appear for written examination from 2002 itself. Since, the order of the Chief Commissioner for disability came on 12.04.2006, she could not avail the opportunity to appear for the written exam. After retrospectivity effected her promotion in 2006, the petitioner represented on 12.04.2007 for her promotion to the next post of Assistant Manager. Finally, on 29.06.2007, the petitioner was promoted to the post of Assistant Manager in 48% quota having successful passed the written test. Thereafter, the petitioner made representation dated 23.09.2009, requesting for promotion to the post of Manager by stating that she would have promoted to the post of Assistant Manager in 2002, to the Post of Manager in 2007 and the post of AGM in September 2009. In another representation dated 10.12.2010, the petitioner stated that her juniors were promoted from the post of Assistant Manager to Manager but she was not considered despite being eligible for the post in all W.P.(C) 4287/2015 Page 18 of 23 respects.
24. As per the new promotion Policy of the respondent which came into force on 15.07.2014, the minimum eligibility for promotion from Assistant Manager to Manager became 3 years, on the basis of average of three years performance appraisal Ratings.
25. It is not in dispute that pursuant to order dated 12.04.2006, the petitioner was given conversion to the post of Clerk with retrospective effect from 31.06.1995 and promotion to IFA was given w.e.f. 01.09.1997. This could happen in the year 2006 thereafter, she was promoted as Assistant Manager and finally working as Manager as present.
26. It is also not in dispute that order dated 12.04.2006 of the chief Commissioner for Disabilities is based on the principle of „relation-back‟ and accordingly converted the post of Clerk and from Clerk to IFA. Beyond that there was no direction from the Chief Commissioner for disabilities. Thus, the principle of „relation-back‟ is upto the post of IFA.
27. Undisputedly, the petitioner was promoted to the post of Assistant Manager after completing minimum five years as IFA for 48% of vacancy through written test. However, had the respondent converted the post of the petitioner to clerk w.e.f. 31.06.1995 and promotion to IFA w.e.f. W.P.(C) 4287/2015 Page 19 of 23 01.09.1997, the petitioner would have appeared in the written examination of the Post of Assistant Manager in the year 2002 itself. But she cleared the written test and promotion to IFA w.e.f. 01.09.1997. Now at this stage, it is all presumption and assumption that she would have qualified the written examination in 2002.
28. The petitioner is presently working as Manager and for the post of Assistant General Manager, the promotion policy of April 2000 mandates that the promotion from the post of manager to the post of AGM shall be made after 3 years (rating not less than 4), after 4 years (rating not less than 3.5) & 5 years (rating not less than 3) in last three years PAR. But, the fact remains that the respondent has promoted who do not meet the eligibility criteria as per policy of April, 2000 from the Post of Manager to the Post of AGM which are as under:-
i. Himanshu Sharma- Joined as Manager on 12.3.2007 promoted to the post of AGM on 9.1.2009. ii. Sarita Sahu- Joined as Manager on 12.10.2007 and promoted to the post of AGM on 3.11.2010. iii. Anil Kumar Chauhan - Joined as Manager on 12.1.2008 and promoted to the post of AGM on 11.3.2010.
iv. Priyanka Chaturvedi - Joined as Manager on 7.4.2008 and promoted to the post of AGM on 03.11.2010.W.P.(C) 4287/2015 Page 20 of 23
v. Nitin Aggarwal - Joined as Management Trainee on 6.1.2009 and promoted to the post of AGM on 2.11.2011.
vi. Priyanka Sharma - Joined as Manager on 10.1.2008 and promoted to the post of AGM on 9.2.2011.
29. By the promotion of above persons who were junior to the petitioner, the petitioner has been discriminated her being women and 100% visually challenged person.
30. As stated by the counsel for the respondent that the petitioner has been assessed by different panels, and the results thus far have been consistent. The petitioner was again called for interviews in the promotion exercise for the year 2015-16. As per proceedings of the Interview Committee held on the 19th March 2016, the Petitioner has been successful in being shortlisted for promotion from Assistant Manager to Manager. She was subsequently promoted to the post of Manager on the 29th of April 2016.
31. The fact remains that the petitioner got the promotion for the post of Assistant Manager through written test and thereafter, she got promoted as Manager.
32. The case of the respondent is that the petitioner does not have the 'assessment grading' as required for the post of AGM and the process for W.P.(C) 4287/2015 Page 21 of 23 the said post is totally different. But it is a fact that 6 persons were promoted to the post of AGM from the post of Manager and all those persons were juniors to the petitioner. When the petitioner got first opportunity to appear in the test for promotion to the post of Assistant Manager, she cleared the same, but had she got the opportunity in the year 2002, she would have passed the said test and become Assistant Manager at that point of time. Due to the discrimination of the respondent towards the petitioner, the first two promotions got with retrospective effect pursuant to order dated 12.04.2006 of the Chief Commissioner.
33. Thus, it is established that the respondent had become hurdle at every stage but due to her sheer hard work, she continued to move upward and got promotions. The petitioner was compelled to fight administrative as well as legal battle and due to which she could reach, from the post of Telephone Operator-cum-Receptionist, to the post of Manager. When the respondent promoted the 6 persons mentioned above within two years against the promotion policy of 2010, then, there is no justification not to promote the petitioner for the post of AGM. It is also not in dispute that the petitioner was not rated/assessed for the year 2011-12 and there is no justification to it. The only impression which can be gathered is that the respondent never W.P.(C) 4287/2015 Page 22 of 23 wanted to promote the petitioner for the post due to her.
34. If the respondent has promoted the other six persons mentioned above within two years from Manager to the post of Assistant Manager, then the petitioner is also entitled to the post of AGM. The candidates mentioned above were promoted to the Post of AGM somewhere 2009 to 2011. The petitioner was promoted on 29.04.2016 as Manager, thus she has completed two years of service. Therefore, I direct the respondent to give promotion to the petitioner as AGM from the date of completion of service as Manager with all consequential benefits. Consequently, the impugned orders dated 23.02.2015, 12.03.2015 and 01.04.2015 are hereby set aside. The order of promotion shall be issued within four weeks from the receipt of this order.
35. The petition is accordingly, allowed.
36. The pending application, if any, also stands disposed of.
(SURESH KUMAR KAIT) JUDGE JANUARY 08, 2019/rd W.P.(C) 4287/2015 Page 23 of 23