Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C.) No. 7528/2008
% Date of Decision:03.02.2010
VIJAY LAKSHMI BHALLA …. Petitioner
Through Mr. H.K. Chaturvedi, Ms. Anjali
Chaturvedi, Advocates.
Versus
UNION OF INDIA & ANOTHER …. Respondents
Through Mr. R.V. Sinha, Mr. A.S. Singh, Advs.
CORAM:
HON’BLE MR. JUSTICE ANIL KUMAR
HON’BLE MR. JUSTICE MOOL CHAND GARG
1. Whether reporters of Local papers may be
allowed to see the judgment?
Yes
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported in
the Digest?
No
MOOL CHAND GARG, J.
*
1. This writ petition has been filed by the petitioner impugning the
order dated 02.05.2008 passed by the Central Administrative Tribunal,
Principal Bench (hereinafter referred to as ‘the Tribunal’) dismissing
O.A. No.1234/2007.
2. The said Original Application was filed by the petitioner seeking
grant of promotion to the grade of Whole Time Lady Officer (WTLO) and
also benefit of second financial upgradation under the Assured Career
Progression Scheme (ACP Scheme) which was turned down by the
respondents vide order dated 08.09.2004 passed by them. It was the
W.P.(C.) No. 7528/2008 Page 1 of 5
case of the petitioner that while period of her contractual appointment
was counted by the respondents towards pension, the said period was
not considered for the grant of benefit under the ACP Scheme as well.
It has been submitted that had the period of contractual appointment
been considered from 1969, the petitioner would have been entitled for
the grant of second financial upgradation.
3. The respondents, while opposing the Application contended that
as per the version of the petitioner, she joined the NCC in the grade of
Sergeant Major Instructor ( SMI) on 26.05.1969 on contractual basis
and her services have been regularized only w.e.f. 24.01.1981. As such
she was not in regular service from 1969 to 1981 and for that reason
she was not qualified for the grant of second ACP benefits.
4. As regards her claim for the grade of WTLO, it was contended that
the petitioner in 1996 participated in Limited Departmental Competitive
Examination (LDCE) but did not qualify in the examination and,
therefore, she was not selected for the post of WTLO. The Tribunal has
rejected her claim by observing that as held by the Apex Court in S.B.
Bhattacharjee Vs. S.D. Majumdar 2008 (1) SCC (L&S) 21 , the right of
the petitioner is only of consideration. Once after participating in the
LDCE, she was considered but failed to attain the merit to qualify
promotion, she would have no right to seek promotion and accordingly
she was not entitled to be promoted as WTLO. Insofar as this aspect is
W.P.(C.) No. 7528/2008 Page 2 of 5
concerned, nothing has been brought to our notice which may assist us
in granting relief to the petitioner as claimed by her in this regard.
5. As regards consideration of petitioner for grant of second ACP is
concerned, it is an admitted fact that she had been a contract employee
for the period from 26.05.1969 to 24.01.1981 and the said period of
service cannot be treated as qualifying service, since the ACP is to be
granted only on the basis of regular service, the service on contract
cannot be considered for that purpose. Admittedly, the petitioner was
appointed on regular basis in 1981 but failed to complete 24 years of
service before retirement on superannuation and, therefore, she was not
entitled to second financial upgradation.
6. In this regard we have also gone through para 4 of the conditions
for grant of promotion under the ACP scheme which requires that only
regular service can be considered for grant of ACP.
7. At one stage, the petitioner filed an additional affidavit stating
therein that she was appointed on regular basis w.e.f. 26.05.1969.
However, the said affidavit was not pressed in view of the letter dated
25.04.2000 which shows that the initial appointment of the petitioner
was only on contractual basis. The said letter is available at page 272
of the paper book and reads as under:
NCC/GCI/310/UOI
Ms. Vijay Lakshmi Bhalla
5 Delhi Girls Bn NCC
Old Rajdhani College Bldg.
Kirti Nagar, New Delhi-15
W.P.(C.) No. 7528/2008 Page 3 of 5
To,
The Dy Director General Pers. and Finance,
Director
Ministry of Defence
R.K. Puram, New Delhi-110022
(through proper channel)
Subject: Assured Career Progression Scheme for
Central Government Employees
Respected Sir,
th
I was appointed as Sergeant Major Instructor on 26
May, 1969 on contractual basis. On the date our
th
cadre was made permanent, i.e. 24 Jan, 1981, I
was working as senior grade of under officer
instructor in the scale of Rs.1450/- p.m. as Coy
Commander.
I request that I may be granted the next due higher
grade/under scale of commissioned officer and ACP
benefits. Kindly consider the same.
Thanking You.
Dated: 25 Apr 2000.
Yours Faithfully
sd/-
(V.L. Bhalla)
NCC/GCI/310 UOI
8. This letter clearly shows that the petitioner’s initial appointment
was on contractual basis. In fact, when she considered that some
action can be taken against her for filing a wrong affidavit, the
petitioner conceded her mistake and filed an unconditional affidavit of
th
apology dated 14 December, 2009.
9. Learned counsel for the petitioner also wanted to rely upon a
judgment delivered by a Division Bench of this Court in the case of UOI
Through the Secretary, Ministry of Defence, New Delhi
W.P.(C.) No. 7528/2008 Page 4 of 5
Vs. Vimla Ghosh, W.P.(C)9181/2007 decided on 15.05.2009 . In that
case, since the respondents failed to show that the applicant was
appointed initially on contractual basis which is not the case before us,
some relief was granted to her but the facts of that case are different
from the case before us.
10. Accordingly, the petitioner is not entitled to take benefit of that
judgment. Consequently, we find no occasion to interfere into the order
passed by the Tribunal while exercising our jurisdiction under Article
226 of the Constitution of India. Accordingly, the petition is dismissed.
MOOL CHAND GARG, J.
FEBRUARY 03, 2010 ANIL KUMAR, J.
‘anb’
W.P.(C.) No. 7528/2008 Page 5 of 5
+ W.P. (C.) No. 7528/2008
% Date of Decision:03.02.2010
VIJAY LAKSHMI BHALLA …. Petitioner
Through Mr. H.K. Chaturvedi, Ms. Anjali
Chaturvedi, Advocates.
Versus
UNION OF INDIA & ANOTHER …. Respondents
Through Mr. R.V. Sinha, Mr. A.S. Singh, Advs.
CORAM:
HON’BLE MR. JUSTICE ANIL KUMAR
HON’BLE MR. JUSTICE MOOL CHAND GARG
1. Whether reporters of Local papers may be
allowed to see the judgment?
Yes
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported in
the Digest?
No
MOOL CHAND GARG, J.
*
1. This writ petition has been filed by the petitioner impugning the
order dated 02.05.2008 passed by the Central Administrative Tribunal,
Principal Bench (hereinafter referred to as ‘the Tribunal’) dismissing
O.A. No.1234/2007.
2. The said Original Application was filed by the petitioner seeking
grant of promotion to the grade of Whole Time Lady Officer (WTLO) and
also benefit of second financial upgradation under the Assured Career
Progression Scheme (ACP Scheme) which was turned down by the
respondents vide order dated 08.09.2004 passed by them. It was the
W.P.(C.) No. 7528/2008 Page 1 of 5
case of the petitioner that while period of her contractual appointment
was counted by the respondents towards pension, the said period was
not considered for the grant of benefit under the ACP Scheme as well.
It has been submitted that had the period of contractual appointment
been considered from 1969, the petitioner would have been entitled for
the grant of second financial upgradation.
3. The respondents, while opposing the Application contended that
as per the version of the petitioner, she joined the NCC in the grade of
Sergeant Major Instructor ( SMI) on 26.05.1969 on contractual basis
and her services have been regularized only w.e.f. 24.01.1981. As such
she was not in regular service from 1969 to 1981 and for that reason
she was not qualified for the grant of second ACP benefits.
4. As regards her claim for the grade of WTLO, it was contended that
the petitioner in 1996 participated in Limited Departmental Competitive
Examination (LDCE) but did not qualify in the examination and,
therefore, she was not selected for the post of WTLO. The Tribunal has
rejected her claim by observing that as held by the Apex Court in S.B.
Bhattacharjee Vs. S.D. Majumdar 2008 (1) SCC (L&S) 21 , the right of
the petitioner is only of consideration. Once after participating in the
LDCE, she was considered but failed to attain the merit to qualify
promotion, she would have no right to seek promotion and accordingly
she was not entitled to be promoted as WTLO. Insofar as this aspect is
W.P.(C.) No. 7528/2008 Page 2 of 5
concerned, nothing has been brought to our notice which may assist us
in granting relief to the petitioner as claimed by her in this regard.
5. As regards consideration of petitioner for grant of second ACP is
concerned, it is an admitted fact that she had been a contract employee
for the period from 26.05.1969 to 24.01.1981 and the said period of
service cannot be treated as qualifying service, since the ACP is to be
granted only on the basis of regular service, the service on contract
cannot be considered for that purpose. Admittedly, the petitioner was
appointed on regular basis in 1981 but failed to complete 24 years of
service before retirement on superannuation and, therefore, she was not
entitled to second financial upgradation.
6. In this regard we have also gone through para 4 of the conditions
for grant of promotion under the ACP scheme which requires that only
regular service can be considered for grant of ACP.
7. At one stage, the petitioner filed an additional affidavit stating
therein that she was appointed on regular basis w.e.f. 26.05.1969.
However, the said affidavit was not pressed in view of the letter dated
25.04.2000 which shows that the initial appointment of the petitioner
was only on contractual basis. The said letter is available at page 272
of the paper book and reads as under:
NCC/GCI/310/UOI
Ms. Vijay Lakshmi Bhalla
5 Delhi Girls Bn NCC
Old Rajdhani College Bldg.
Kirti Nagar, New Delhi-15
W.P.(C.) No. 7528/2008 Page 3 of 5
To,
The Dy Director General Pers. and Finance,
Director
Ministry of Defence
R.K. Puram, New Delhi-110022
(through proper channel)
Subject: Assured Career Progression Scheme for
Central Government Employees
Respected Sir,
th
I was appointed as Sergeant Major Instructor on 26
May, 1969 on contractual basis. On the date our
th
cadre was made permanent, i.e. 24 Jan, 1981, I
was working as senior grade of under officer
instructor in the scale of Rs.1450/- p.m. as Coy
Commander.
I request that I may be granted the next due higher
grade/under scale of commissioned officer and ACP
benefits. Kindly consider the same.
Thanking You.
Dated: 25 Apr 2000.
Yours Faithfully
sd/-
(V.L. Bhalla)
NCC/GCI/310 UOI
8. This letter clearly shows that the petitioner’s initial appointment
was on contractual basis. In fact, when she considered that some
action can be taken against her for filing a wrong affidavit, the
petitioner conceded her mistake and filed an unconditional affidavit of
th
apology dated 14 December, 2009.
9. Learned counsel for the petitioner also wanted to rely upon a
judgment delivered by a Division Bench of this Court in the case of UOI
Through the Secretary, Ministry of Defence, New Delhi
W.P.(C.) No. 7528/2008 Page 4 of 5
Vs. Vimla Ghosh, W.P.(C)9181/2007 decided on 15.05.2009 . In that
case, since the respondents failed to show that the applicant was
appointed initially on contractual basis which is not the case before us,
some relief was granted to her but the facts of that case are different
from the case before us.
10. Accordingly, the petitioner is not entitled to take benefit of that
judgment. Consequently, we find no occasion to interfere into the order
passed by the Tribunal while exercising our jurisdiction under Article
226 of the Constitution of India. Accordingly, the petition is dismissed.
MOOL CHAND GARG, J.
FEBRUARY 03, 2010 ANIL KUMAR, J.
‘anb’
W.P.(C.) No. 7528/2008 Page 5 of 5