MR.JUSTICE V.PARTHIBAN W.P.No.11813 of 2020 and W.M.P.Nos.14526 & 14524 of 2020 promotion order full order

IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.08.2020
CORAM
THE HONOURABLE MR.JUSTICE V.PARTHIBAN
W.P.No.11813 of 2020
and
W.M.P.Nos.14526 & 14524 of 2020

Dr.T.Gnannamaanikkam …Petitioner
Vs.

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,
New Delhi.

3.The Director General,
Border Roads,
Seema Sadak Bhawan,
Ring Road, Delhi Cantt.(PO),
New Delhi – 10.

4.The Secretary,
Union Public Service Commission,
Shajahan Road, Dolpur House,
New Delhi – 69.

5.Mr.Udai Shankar Srivastava

6.Mr.Mohan Lan Agrawal

7.The Under Secretary to Government of India,
Ministry of Defence,
Border Roads Developmen Board,
‘B’ Wing, 4th Floor, Sena Bhavan,
New Delhi 110 011 …Respondents

Prayer:
Writ Petition filed under Section Article 226 of the Constitution of India praying Writ of Certiorarified Mandamus, calling for the records of the 7th respondent in F.No.16017/Dir(Admn)/DPC/2020/DGBR/E1D/BRDB, dated 24.08.2020 and the consequential order of the 3rd respondent in No.13206/DIR/ADMN/DGBR E 1A dated 25.08.2020 and quash both the orders in so far as the promotion to respondent 5 and 6 as Director (Administration) is concerned and consequently direct the respondents to consider and promote the petitioner as Director (Administration) in the two newly sanctioned vacancies with all attendant benefits, including seniority, pay fixation etc.,

For Petitioner : Mr.V.Vijay Shankar
For Respondents : Mr.Sankaranarayanan,
Addl.Solicitor General
Assisted by
Mr.V.Chandrasekaran
Standing Counsel
Mr.L.Chandrakumar for R5
ORDER

These matters are taken up through web hearing.

2.This Court in W.P.No.10735 of 2010, in respect of the same petitioner herein, has passed an order on 13.08.2020 granting order of injunction restraining the respondents from filling up one of the two posts of Director till the next date of hearing and the matter was adjourned to 26.08.2020. A detailed order was passed on that day as under:
“The matter is taken up through web hearing.
2.The petitioner is presently working as Registrar, Central Administrative Tribunal, Chennai Bench, on deputation. He was originally appointed as Civilian Officer, Grade-II, under the Ministry of Defence in 1995 and later on promoted as Senior Administrative Officer in 2001 and thereafter, further promoted to the post of Joint Director in 2010.
3.According to the petitioner, the next higher post of promotion is to the post of Director. According to him, presently two vacancies have arisen in pursuance of the sanctioning of post of Directors, for which, the Departmental Promotion Committee has been convened for promoting the eligible officers. In the rank of Joint Director, the petitioner claims that he is the second Senior most person waiting to be promoted as Director. He apprehends that he may be overlooked in the matter of present promotion in view of the fact that he is on deputation to the Central Administrative Tribunal, Chennai Bench. According to him, he is otherwise fully eligible to be promoted to the post of Director and in case, one of his juniors is accommodated to any one of the two vacancies of Director posts, his interest would be irreparably prejudiced, since he got only one year of service left for retirement.
4.The learned counsel appearing for the petitioner would submit that the DPC is likely to take a decision in the matter of promotion today i.e. 13.08.2020 and if one of the Director posts is to be filled up by a junior, the petitioner’s right would be infringed once and for all and he would not get another opportunity to reach the position of Director. Therefore, he would request this Court to protect the interest of the petitioner, pending final decision in the writ petition.
5.Mr.V.Chandrasekaran, learned Standing counsel took notice on behalf of the respondents.
6.Considering the above narrative that the petitioner being the second Senior most person, fully eligible to be considered for promotion to the post of Director, there shall be an order of injunction restraining the respondents from filling up one of the two posts of Director till the next date of hearing.
Post the matter on 26.08.2020.”

3.Thereafter, on behalf of the Union of India and others the matter was mentioned and the learned Additional Solicitor General has appeared and he expressed certain difficulty in implementing the order of injunction granted by this Court, on 13.08.2020 and in deference to his request, the matter was advanced to 20.08.2020, for hearing. On that day, the learned Additional Solicitor General assisted by Mr.Chandrasekaran, made elaborate submissions and also appraised this Court of the direction passed by the Delhi High Court, which was required to be complied with by the respondents and the matter was to be reported to Delhi High Court on 24.08.2020, for compliance of the direction. The direction was in relation to the same subject matter of promotion. The learned counsel for the petitioner Mr.V.Vijay Shankar also appeared and made his submissions and Mr.L.Chandra Kumar, learned counsel appeared for the intervenor Mr.Srivastsava/R5, whose consideration, in effect, was put to challenge in this writ petition, though he was not made a party. However, L.Chandra Kumar, the learned counsel appearing for the said Officer was also heard.

4.On consideration of the submissions of the learned Additional Solicitor General and the counsel for the petitioner and also L.Chandra Kumar, the interim order of injunction passed on 13.08.2020 was modified and the following order was passed on 20.08.2020.
“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”.

5.This Court has clearly spelt out its intention that the writ petitioner also to be considered for promotion to the post of Director by convening a DPC at the earliest and only on such consideration, recommendation to be made. Infact, the final direction as extracted above did not require any clarification, as the same was self-explanatory.
6.But the present writ petition has been moved challenging order dated 24.08.2020 against the appointment of two Officers, viz., one Mr.Harvesh Kumar Patnaik and another Mr.Udai Shankar Srivastava, to the post of Director(Administration) in the Border Road Organisation. In respect of the promotion of the above two Officers, even in the earlier writ petition, the petitioner had conceded that Mr.Harvesh Kumar Patnaik was senior to him and he had no quarrel with his promotion. His only objection was for consideration of the other officer Mr.Udai Shankar Srivastava, who, according to the petitioner, was junior to him and he cannot be considered overlooking his seniority. In the said circumstances and also taking note of the fact that Mr.Udai Shankar Srivastava, even promoted, is to retire on superannuation, on 31.08.2020, this Court modified the original order of injunction granted on 13.08.2020.
7.While matter stood thus, by impugned order dated 24.08.2020, on behalf of the Government of India, the 6th respondent was included in the promotion order as wait listed candidate, indicating that on retirement of Mr.Udai Shankar Srivastava, who is arrayed as 5th respondent herein, on 31.08.2020, he would be promoted in that place.

8.The learned counsel appearing for the petitioner strongly objected to such course of action adopted by the official respondents and it only showed that the Authorities concerned were not interested in complying with the directions passed by this Court. According to the learned counsel for the petitioner, if the 6th respondent is to be accommodated and promoted on retirement of 5th respondent on 31.08.2020, the petitioner would be deprived of his due promotion and he would have to retire in the same position, in which case, it would cause irreparable loss and injustice to the petitioner.
9.This Court, in consideration of the above narrative, is of the view that the impugned order passed by the authority is not in consonance with the directions issued by this Court on 20.08.2020. On the other hand, the order indicating the inclusion of the 6th respondent and his definite promotion, after 31.08.2020, on retirement of 5th respondent/Mr.Udai Shankar Srivastava, does not appear to be in order. From the impugned order, nothing could be inferred that the petitioner herein was considered at all in the DPC, as per the directions of this Court. Therefore, this Court is unable to appreciate the manner in which the impugned order was passed, more particularly, by including the 6th respondent in the list. In the opinion of this Court the authorities are proceeding with undue haste ostensibly to frustrate the claim of the petitioner herein, in this writ petition. This Court is also not happy with the authorities rushing to fill up the posts without seeking any further clarification from this Court, in the case of the petitioner being not considered, in reference to the direction of this Court dated 20.08.2020.
10.In the above said circumstances, this Court is constrained to pass an order of stay of operation of the impugned order dated 24.08.2020, in so far as the inclusion of the 6th respondent in the order for promotion and consequently, there shall be an order of injunction restraining the 6th respondent from assuming charge as Director (Administration) in the vacancy to be created by the retirement of the present incumbent 5th respondent/Mr.Udai Shankar Srivastava. The above interim order will be in force till the next date of hearing.
11.The learned Additional Solicitor General and the instructing standing counsel of Union of India are directed to get appropriate instructions before the next date of hearing in order to proceed with the case further.
Post the matter on 07.09.2020.
28.08.2020
mrm/msk

Note to Office:

Issue order today


To
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,
New Delhi.

3.The Director General,
Border Roads,
Seema Sadak Bhawan,
Ring Road, Delhi Cantt.(PO),
New Delhi – 10.

4.The Secretary,
Union Public Service Commission,
Shajahan Road, Dolpur House,
New Delhi – 69.

V.PARTHIBAN, J.

msk/mrm

W.P.No.11813 of 2020

28.08.2020

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