MR.JUSTICE V.PARTHIBAN W.P.No.10735 of 2020 and W.M.P.Nos.13035, 13039 & 13040 of 2020 docter promotion case full order
IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HONOURABLE MR.JUSTICE V.PARTHIBAN
W.P.No.10735 of 2020
W.M.P.Nos.13035, 13039 & 13040 of 2020
1.The Union of India,
Rep by the Secretary to Government,
Ministry of Defence,
No.101-A, South Block, New Delhi.
2.The Joint Secretary to Government of India,
Border Roads Organization,
Room No.108 A, South Block,
3.The Director General,
Seema Sadak Bhawan,
Ring Road, Delhi Cantt.(PO),
New Delhi – 10.
Union Public Service Commission,
Shajahan Road, Dolpur House,
New Delhi – 69.
Writ Petition filed under Section Article 226 of the Constitution of India praying Writ of Mandamus, directing the respondents to consider and promote the petitioner as “Director” (Admn) in accordance with the seniority as he fulfills all the required eligibility qualification as per the rules against the two newly sanctioned vacancies with all attendant benefits.
For Petitioner : Mr.V.Vijay Shankar
For Respondents : Mr.V.Chandrasekaran
The matter is taken up through web hearing.
This Court, on earlier occasion, i.e. on 13.08.2020 while entertaining the Writ Petition, has passed an interim injunction, injuncting the respondents from filling up one of the two posts of Director till the next date of hearing and adjourned the matter to 26.08. 2020.
2. However, it transpired that the interim order was communicated to the authorities concerned and the Departmental Promotion Committee (DPC) which was convened on 13.08.2020, had considered the name of one Mr.U.S.Srivatsava for the subject promotion to the exclusion of the petitioner herein. The said consideration was due to the fact Delhi High Court in WP(C) No.3792 of 2020, issued directions for consideration of the name of the said U.S.Srivatsava, who was the petitioner in the above said Writ Petition, on the basis of the petitioner’s claim in that Writ Petition and further directed the authorities concerned to report compliance to the Court on 24.08.2020.
3. Although the matter was originally adjourned to 26.08.2020, at the instance of the learned Standing counsel for the Central Government, the hearing was advanced and the matter is taken up today for hearing.
4. Today, the learned Addl.Solicitor General, Mr.Sankara Narayanan appearing on behalf of the Government of India, submitted that the interim order of injunction granted by this Court needs to be modified for the following reasons, viz., that according to the learned Addl.Solicitor General, the said U.S.Srivatsava approached the Delhi High Court in the above mentioned Writ Petition for his consideration for promotion to the post of Director as he was due to superannuate on 31.08.2020. On consideration of the Writ Petition, the Delhi High Court vide its order dated 17.07.2020 has directed the authorities concerned to convene DPC and consider the name of said U.S. Srivatsava and report compliance on 24.08.2020 in view of the impending retirement of said officer on 31.08.2020.
5. When the DPC was to be convened on 13.08.2020, the present Writ petitioner approached this Court claiming that he was the second senior most person waiting to be promoted as Director, apart from one senior person against whom he has no objection for his accommodation in one of the two posts of Director. According to the petitioner herein, his name was probably not being considered as he was on deputation as Registrar of the Central Administrative Tribunal, Chennai Bench and being away from the Headquarters, he was not deputed to undergo CSS Training which was one of the requirements for promotion to the post of Director. However, the submission of the petitioner was that the CSS Training requirement was not to be made applicable to the Officers who crossed the age of 58 and in such cases, the training cannot be insisted upon, as per the Rule position. Nevertheless, according to the petitioner, he was deputed to the CSS Training OnLine and completed the same recently, just before the meeting of the DPC.
5. In consideration of the plea of the petitioner that he was the second senior person, waiting in the wings to be promoted as Director and also considering the fact that CSS Training was not to be made applicable to the petitioner in view of the age factor in terms of the governing Rules, an interim order of injunction was passed by this Court on 13.08.2020. The learned Addl.Solicitor General informed this Court that in pursuance of the interim order of injunction, though the DPC considered the name of said U.S.Srivatsava in compliance with the direction of the Delhi High Court, no further decision is taken in deference to the interim order passed by this Court.
6. Be that as it may, the learned Addl.Solicitor General submitted that the authorities are now caught between two competing orders of two High Courts in respect of the same selection. The authorities are also under legal obligation to report to the Delhi High Court on 24.8.2020 towards compliance of the direction of that Court. A dicey situation as it unfolded, the learned Addl. Solicitor General requested this Court to modify the interim orders appropriately so that the authorities are not to be hauled up for disobedience of the orders passed by either of the High Courts.
7. Mr.L.Chandra Kumar, learned counsel who intervened in the matter during the course of the arguments, submitted that he was representing U.S.Srivatsava, who is the Writ petitioner before the Delhi High Court and according to him, the said Srivatsava was fully qualified to be appointed as Director in preference to the petitioner herein, as according to him, the CSS Training was mandatory irrespective of the age as per the relevant Rules. He further submitted that the request of the learned Addl.Solicitor General for modifying the interim order of injunction becomes more imperative, as admittedly, the said Srivatsava is due for his retirement on 31.08.2020 and any further delay in the matter would imperil the chances of his client’s promotion, for ever. In fact, the learned Addl.Solicitor General on instructions, also submitted that in regard to the CSS Training qualification, the contention put forth by the learned counsel for the petitioner may not be correct, as exception to the Rule is applicable only to Secretariat Service and not to other services. However, this Court, is not inclined to go into the nuanced submissions of the learned counsels on this aspect, at this stage.
8. In consideration of the above narrative and in order to facilitate a way out of the present imbroglio faced by the authorities, this Court is of the view that the injunction granted by this Court on 13.08.2020 need not be continued by further imposing a blanket embargo on the respondents in taking forward the DPC proceedings drawn up in furtherance of its meeting held on 13.08.2020.
9. At the same time, this Court cannot also lose sight of the fact that the petitioner herein admittedly senior to the said Srivatsava and in fact, on a specific querry by this Court on this aspect, it was affirmed on behalf of the learned Standing counsel for the respondents, is not to be overlooked unjustly. In the event of the petitioner’s contention that CSS Training was not mandatory for him is supported by the relevant Rules, the right of the petitioner for consideration in the present DPC cannot stand negated, in order to advance the cause of expediency in preference to fairness in action. Therefore, in fitness of things, the right of the petitioner herein needs to be safeguarded to the extent possible in the peculiar circumstances of the case.
10. In the above circumstances, this Court is constrained to modify the order dated 13.08.2020 as under:
“The respondents are directed to consider the name of the petitioner herein also for promotion to the post of Director by convening a DPC at the earliest and on such consideration, the DPC can make recommendation thereafter as to which candidate is fully eligible for eventual appointment to the post of Director, as expeditiously as possible. It is made clear that any decision taken either by the DPC or by the appointing Authority on the subject matter is subject to the result of the Writ Petition.”
11. Post the Writ Petition for further hearing on 07.09.2020.
W.P.No.10735 of 2020