In W.P.(C) 78/2003-DEL HC- Eligibility for promotion and existence of vacancy are two prerequisites for regularization of appointment from prior date, wherever rules so permit, reiterates Delhi HC 
Justices Satish Chandra Sharma & Subramonium Prasad [06-09-2022]

Read Order: VIJAY BHUSHAN GUPTA v. UNION OF INDIA 

Mansimran Kaur

New Delhi, September 7, 2022: Involvement of identically placed persons and judgment not being restricted to operate in personam by the Court, are the prerequisite conditions for the conferment of benefits of a judgment to non-parties, the Delhi High Court has reiterated.

The Division Bench of Justice Satish Chandra Sharma and Justice Subramonium Prasad disposed of the instant petition by observing that if the petitioner met the criteria for such regularization, then merely because he could not approach the Tribunal for seeking a direction to the department, cannot be a reason for the department to not have considered his representation. 

The petitioner in this case had put forth  a case that he had been superseded by three of his juniors who were promoted to the rank of Senior Investigator out of turn, owing to the relaxation of certain rules by the department, first on ad-hoc basis and then on regular posts. Consequently, the petitioner was also promoted. However, the respective dates of regularization of the petitioner and the three juniors had a gap of 4 years and aggrieved therewith, the petitioner called upon the Court to regularize his services from a prior date.

Factual matrix of the case was such that on  June 5, 1979 , five   Jr. Investigators, including the three colleagues in question, were promoted as Sr. Investigators on an ad-hoc basis w.e.f. June 1, 1979.

The petitioner gave representation to the department for consideration of his name as well for promotion. The department refused to accede to the representation. Thereafter, on January 31, 1981 the petitioner was appointed as Sr. Investigator on an ad-hoc basis. 

After almost 8 years, in 1989, the three juniors of the petitioner approached the Tribunal, through O.A. 1631/1989 for regularization of their promotions from the date of their ad-hoc appointments. Thereafter, the petitioner also approached the Tribunal being aggrieved against the refusal of the department to entertain his representation for grant of promotion along with the three juniors in the same year i.e. 1979. 

The Tribunal passed a common order on November 22, 1993 observing that there was no right to seek regularization from the date of ad-hoc appointment, and refused to entertain the cases on merits. However, noting that the vacancies in senior grade had arisen in 1986, it directed the department to conduct a review of DPC and consider the case of the applicants in light of the aforesaid vacancies.

In 1996, the three juniors of the petitioner preferred another application before the Tribunal seeking regularization w.e.f. the date of their ad-hoc appointment in the senior grade i.e. from 1979. The Tribunal identified that some regular vacancies existed from 1964 onwards, and the case of the applicants must be reviewed accordingly. Consequently, the department reconsidered the case of Sh. Suresh Kumar, Sh. R.S. Attri and Sh. K.L. Goyal, and regularized their appointment as Sr. Investigators w.e.f. June 14, 1979, September 16, 1979  and January 13, 1981 respectively.

The petitioner gave certain representations to the respondent for seeking the benefit of the Tribunals order the application, however, the same was denied. 

The Tribunal dismissed the application holding that no discrimination has been meted out to the petitioner vis-à-vis the three juniors as they were promoted upon the completion of four years by offering a one-time relaxation as a class.

This petition emerged from the above order passed by the Central Administrative Tribunal. The principal argument addressed by the petitioner was that the three juniors of the petitioner were granted undue relaxation for promotion as they had merely completed 2.5 years of regular service (and not 4 years) when they were promoted in 1979. It was urged that the petitioner stood on the same footing with the three juniors at that point of time, and thus, discrimination was meted out to him by not granting the same relaxation.

After considering the submissions of the parties at length, the Court noted that the law regarding whether or not the benefit of a judgment could be extended to those who are not parties to the same is no more res integra.At this stage reliance was placed on the case of State of U.P. V. Arvind Kumar Srivastava. 

In furtherance of the same, the Court noted that there was nothing on record which made the   the case of the petitioner  different in a manner that his request for regularization from the date of ad-hoc appointment cannot even be considered by the department, in accordance with the rules and as per the availability of vacancies.

If the petitioner met the criteria for such regularization, then merely because he could not approach the Tribunal for seeking a direction to the department, cannot be a reason for the department to not have considered his representation, the Court noted. 

Particularly, keeping in view that the petitioner was an applicant in previous application relating to this subject matter, his case also warranted indulgence by the department, at least for the purpose of consideration when the cases of other identically placed employees were being considered. Therefore, for the purpose of consideration of regularization from the date of ad-hoc appointment, the petitioner was identically placed with the applicants.

Thus, the Court noted that there was no question for retrospective consideration of regularization of promotion in senior grade at a time when the employee was not even eligible for promotion. 

“As the settled law states, the eligibility for promotion and existence of vacancy at the relevant point of time are two prerequisites for regularization of appointment from a prior date (wherever rules so permit)”, the Bench said. Thus, to maintain parity with the three juniors, whose services got regularized from the date of their ad-hoc appointment, the Court was  inclined to give the petitioner a chance to get his case considered for similar regularization from the date of his ad-hoc appointment i.e. January 28, 1981, the Court observed. 

Hence, it was noted that if the respondent department finds that the case of the petitioner meets the criteria for such regularization; all consequential benefits shall accordingly follow from the date of such regularization.

Thus, the petition was disposed of.