New India Assurance Company Ltd & Ors. v. Khushal Singh & Ors.

CORAM : HON'BLE MR. JUSTICE RANJAN GOGOI HON'BLE MR. JUSTICE RAJAN GUPTA Present: Mr. Ashwani Talwar, Advocate for the appellants. Mr. N.P. Mittal, Advocate for the respondents. RANJAN GOGOI J. (ORAL) Heard. Both the appeals being against the common order dated

20.04.2010 passed by learned Single Judge of this Court in proceedings LPA No. 1079 of 2010 & LPA No. 1080 of 2010 2 registered and numbered as CWP No. 9955 of 1989 and CWP No. 5408 of 1990 were heard together and are being disposed of by this common order. By the order passed by learned Single Judge, directions have been issued for grant of notional promotion to the respondents/writ petitioners to the post of Assistant Administrative Officer w.e.f. the date of promotion of the respondents No. 2 & 3 in the appeal i.e. Sh. O.P. Sahota and Sh. M.K. Kagra along with all consequential benefits including arrears of pay and the terminal benefits with interest thereon. The fact presented by learned counsel for the appellants have largely been unclear casting an obligation on the Court to unravel the correct facts of the case for an effective resolution of the dispute between the parties. It appears that lack of clarity of the facts had plagued the learned Single Judge hearing the writ petition also. The above is discernible from the following observation made by learned Single Judge in the impugned order:- “The respondents have also indulged in meaningless gibberish that are incomprehensible, which I reckon to be deliberately made to confuse the issues.” The correct facts as unraveled in the course of long hearing of two appeals may be correctly summarized as follows:- The respondents/writ petitioners participated in a process of regular promotion to the post of Assistant Administrative Officer as per Clause 31 of the Promotion Policy in force in the appellant company. The respondents/writ petitioners, who belong to the reserved category, however, did not qualify in the interview. It appears that in the year 1987 another process of regular promotion was initiated where Sh. O.P. Sahota and LPA No. 1079 of 2010 & LPA No. 1080 of 2010 3 Sh. M.K. Kagra took part, whereas the respondents/writ petitioners did not. The result of the process of regular promotion initiated in the year 1987 was declared on 15.12.1987. According to the appellants, the names of Sh. O.P. Sahota and Sh. M.K. Kagra which were placed at Sr. No. 18 and 20 of the merit list did not find place in the ranking list published 17.12.1987 as there were 17 vacancies in all. However, the said position is disputed by respondent/writ petitioner to contend that inclusion of the names of Sh. O.P. Sahota and Sh. M.K. Kagra were an after thought. Be that as it may, on the basis of regular promotional process undertaken in the year 1987 four posts of Assistant Administrative Officer, three in the western and one in the eastern region, which were earmarked for reserved category candidates could not be filed up. Therefore, a special promotional exercise for filing up the said four post from the reserved category candidates was undertaken. In the merit list published on

06.09.1988 the names of the two respondents/writ petitioners appeared at Sr. No. 6 & 12 whereas that of Sh. O.P. Sahota and Sh. M.K. Kagra appeared at Sr. No. 20 & 21 respectively. According to respondents, as the first four candidates in order of merit in the list published accepted the offer of appointment, no other candidate could be appointed and the merit list being a one time exercise had spent its force on the appointment of first four candidates. Thereafter, another regular promotion exercise was undertaken in the year 1989 and after the same was over, few more vacancies remained unfilled in the cadre of AAO in the northern zone. Accordingly, a decision was taken that reserved category employees whose names appeared in the merit list of 1987 but who could not be offered appointment on account of LPA No. 1079 of 2010 & LPA No. 1080 of 2010 4 lack of vacancies should be appointed. On the said basis Sh. O.P. Sahota and Sh. M.K. Kagra were given promotion. No promotion could be given to respondents/writ petitioners as they had not participated in the selection process for regular promotion held in the year 1987. The aforesaid stand taken by the respondents indicates certain features which appear to be inconsistent, if not contradictory. If the regular promotion held in the year 1987 was confined to 17 vacancies as the ranking list published on 17.12.1987 would indicate, even if the Court is to assume that there were more names including that of Sh. O.P. Sahota and Sh. M.K. Kagra in the merit list dated 15.12.1987, the said additional names would not make the concerned persons duly selected for promotion. If that be so, the names of Sh. O.P. Sahota and Sh. M.K. Kagra could not have been picked up as earlier selected candidates for the purpose of inclusion of their names in the merit list of candidates in the special recruitment process undertaken in the year 1989. Both the aforesaid persons having admittedly failed to qualify for appointment on the basis of the selection held in 1987, they were in no better position than the respondents/writ petitioners who did not appear in the selection held. There is yet another aspect of the case which presents a disquieting feature. In the special recruitment process of the year 1988 selection of candidates was made on the basis of certain parameters including an interview. However, in the Special Recruitment process held in the year 1989, admittedly, the parameters applied earlier including interview were not followed and Sh. O.P. Sahota and Sh. M.K. Kagra were given promotion on the basis that their names had been included in the merit list of 1987 but were not appointed on the ground of non-availability of LPA No. 1079 of 2010 & LPA No. 1080 of 2010 5 vacancies. The above stand taken by the appellants in paragraph 1 of the preliminary objections contained in the written statement filed in the original writ proceedings would clearly indicate adoption of two different yard sticks to measure the eligibility of candidates for the purpose of promotion to the cadre of A.A.O. The same could not have done by the appellants. The net result of the above discussion would indicate that the respondents/writ petitioners were unfairly treated by the appellants in the matter of promotion to the cadre of A.A.O. Different standards have been adopted while considering the cases of the respondents/writ petitioners for promotion and the cases of Sh. O.P. Sahota and Sh. M.K. Kagra which would make the promotion of aforesaid two persons i.e. Sh. O.P. Sahota and Sh. M.K. Kagra legally fragile. However, considering the fact that several decades have elapsed in the meantime and the respondents/writ petitioners have also been promoted to the cadre of A.A.O in the year 1992, instead of disturbing the promotions of Sh. O.P. Sahota and Sh. M.K. Kagra it will only be appropriate to reiterate the directions issued by learned Single Judge to give notional/antedated promotion to the respondents/writ petitioners with effect from the date of promotion of the Sh. O.P. Sahota and Sh. M.K. Kagra and for grant of consequential benefits subject to the modification that interest on the amount that would become payable to the respondents/writ petitioners is not being insisted upon. Consequently and in view of the above discussion and the conclusions reached by us, we deem it appropriate not to entertain this Letters Patent Appeal any further. Accordingly, the same is dismissed, by enhancing the cost amount to `20,000/- (Rupees Twenty Thousand only) LPA No. 1079 of 2010 & LPA No. 1080 of 2010 6 taking into account the conduct of the appellants in not correctly placing the relevant facts and projecting the same in the manner indicated in this order. (RANJAN GOGOI) JUDGE September 28, 2010 Ajay (RAJAN GUPTA) JUDGE