* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 26th July, 2011
+ W.P.(C) 12899/2005
SHIV SWARUP SHARMA ..... Petitioner
Through: Mr.Arun Bhardwaj, Advocate.
versus
UNION OF INDIA & ORS. .....Respondents
Through: Mr.NareshKaushik, Advocate for
UPSC.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J. (Oral)
CM No.6488/2011
1. The respondents are served and we find only
respondent No.4 appearing.
2. On the express statement of learned counsel for the
petitioner that the writ petition would be argued today itself
we dispose of the application and for the reason stated therein
recall the order dated 4.4.2011 dismissing the writ petition in
default.
3. The writ petition is restored for hearing on merits.
WP(C) No.12899/2005
1. Heard learned counsel for the parties.
W.P.(C) No.12899/2005 Page 1 of 6
2. Inartistically drafted Original Application has
resulted in the Central Administrative Tribunal losing focus and
hence a decision which requires to be set aside and matter
remanded to the Tribunal for fresh adjudication.
3. As India moves in the 2nd decade of the 21st Century
and 2nd generation legal reforms are being pushed by the
Government; with the history of the bar in India dating back to
when the Chartered High Courts were set up in this country in
the mid 18th Century; we hope and expect that the decision of
the Supreme Court which requires pleadings in Courts in India
to be construed liberally as if they are pleadings at a mufasil
Court is got reversed by the bar itself, for the reason, we find
such a low standard to be an insult upon an organization which
professes to compete at the International level and surely it is
not to be expected that in the modern world, a professional
body expected to have high standards would be forging tools
akin to a blacksmith in the village working with primitive
implements.
4. Shiv Swarup Sharma is an officer of the Indian
Custom and Central Excise Group „A‟ Service, which service he
entered as a direct recruit.
5. In May 1991 he was promoted as a Deputy
Commissioner, a post which has been re-designated as Joint
Commissioner. He thought that the promotion was pursuant
to a regular DPC. The department took the stand that it was
an ad-hoc promotion and not a regular promotion.
6. A regular DPC met in the year 2002 wherein he was
declared unfit for promotion and the result was that persons
W.P.(C) No.12899/2005 Page 2 of 6
junior to him were promoted as Joint Commissioner on regular
basis.
7. He filed a representation in which he urged 2
points. Firstly, that he had been promoted in the year 1991
pursuant to a regular DPC and thus the question of his re-
promotion could not be considered. Secondly, he questioned
the DPC which met in March 2002 and considered his service
records which were adverse, as pleaded by him, and not
communicated to him.
8. The representation was rejected on 4.11.2003 and
by the time Shiv Swarup Sharma filed OA 2785/2003 before
the Tribunal, further promotion was effected to the post of
Commissioner.
9. In the Original Application, Shiv Swarup Sharma
stated that the stand of the department of his promotion in the
year 1991 being ad-hoc was not correct. Alternatively, he
questioned the DPC which met in March 2002, assessing his
suitability with reference to his adverse service record, which
statedly was not communicated to him. So alleging, he
pleaded that he would be entitled to be treated as promoted
as Joint Commissioner w.e.f. the date he was superseded and
thus would be entitled to be promoted as a Commissioner.
10. Making aforesaid pleadings, albeit inchoately,
prayer made was as under:-
“I. Quash and set aside the impugned order dated
4.11.2003, vide which the representation of the
applicant has been illegally rejected. Direct the
respondents to hold that the DPC of 1991 was a
regular DPC.
II. Direct the respondents consequently to consider
the applicant for promotion to the post of
W.P.(C) No.12899/2005 Page 3 of 6
Commissioner on the basis of records after 1991,
w.e.f. the date his immediate junior was promoted and
with all other consequential benefits.
III. Any other relief, which this Hon‟ble Tribunal may
deem fit and proper in the circumstances of the case,
may also be passed in favour of the applicant.
IV. Cost of the proceedings be awarded in favour of
the applicant and against the respondents.”
11. Relevant would it be to note that the prayer clause
is equally inartistically worded.
12. After praying that the rejection order dated
14.11.2003 be quashed, it ought to have been prayed that a
Review DPC be directed to be held, at which DPC the record
which was adverse to him and which was considered by the
DPC which met in March 2002, should be ignored. It further
had to be prayed that if at the Review DPC he was held fit to
be promoted, directions should be issued that he should be so
promoted with all consequential benefits and thereafter it
ought to have been prayed that one of the consequential
benefits would be a direction to promote the petitioner to the
post of Commissioner with effect from the date persons junior
to him were promoted.
13. The result of the inartistically drafted pleadings and
the prayer, is that the Tribunal, after noting the relevant facts
and opining that petitioner‟s promotion in the year 1991 was
ad-hoc and that the DPC which met in March 2002 was the first
DPC which met, non suited the petitioner by returning a
finding in para 13 of the impugned order which reads as
under:-
W.P.(C) No.12899/2005 Page 4 of 6
“13. A fatal law that occurs is that though the
applicant assails the order and claims the relief that
he should be promoted as Commissioner in his
Department from the date his juniors were promoted
but he does not challenge the order that had earlier
been passed ignoring him from promotion to the post
of Joint Commissioner which was earlier known as
Deputy Commissioner in the Department. This is a
fatal flaw. The post of the Joint Commissioner is a
feeder post to the post of Commissioner. In the
absence of challenge to that, indeed the applicant
cannot succeed because necessarily he must get
himself promoted as Joint Commissioner in the first
instance.”
14. It is apparent that since the Tribunal has held that
the petitioner had not questioned the promotion to the post of
Joint Commissioner, he could not have questioned the
promotion to the post of Commissioner. The reason is: if the
petitioner misses the bus at point „A‟ and qua his missing the
bus raises no grievance, he has to trail behind in the journey
thereafter and cannot question his missing the bus at point „B‟.
15. But, as noted hereinabove, we find that the
petitioner has questioned his supersession for the post of Joint
Commissioner and in respect whereof we find that Grounds „B‟
and „F‟ have been specifically averred after the narration of
facts in the Original Application. That apart, when the
petitioner prayed in the relief clause that the impugned order
dated 4.11.2003 be set aside, it was but natural that he was
questioning his supersession to the post of Joint Commissioner.
16. Meaningfully read, on the standards of pleadings at
a mufasil level, which we require as the standard to be
adopted to give meaning to a pleadings, we find that the
petitioner has challenged his supersession to the post of Joint
W.P.(C) No.12899/2005 Page 5 of 6
Commissioner. Accordingly, finding that the Tribunal has not
dealt with the challenge raised by the petitioner to his being
superseded as a Joint Commissioner, we dispose of the writ
petition setting aside the impugned order dated 22.11.2004.
17. OA No.2785/2007 is restored for adjudication by the
Tribunal.
18. No costs.
19. DASTI.
(PRADEEP NANDRAJOG)
JUDGE
(SUNIL GAUR)
JUDGE
JULY 26, 2011
dk
W.P.(C) No.12899/2005 Page 6 of 6