Disposed

Mukesh Kumar v. Delhi Sc/St/Obc Minority & Handicapped Financial Development Corporation Ltd. & Ors.

Delhi HC17 Sept 2024W.P.(C)/9357/2009

Case brief

AI extract

What is this about?

Employee sought retrospective LDC promotion from 1996 on parity with colleagues, having cleared the qualifying typing test in 1993 though he reappeared unsuccessfully later. Court found once-qualified employees need not retake the test and his 1993 result was overlooked by the DPC, causing injustice.

What did the court decide?

Writ allowed to extent that review DPC be convened within three months to reconsider retrospective promotion from 06.12.1996, after taking representations of Mam Chand, Kuldeep Singh, Dhan Bahadur Tha

Mukesh Kumar Vs Delhi Sc/St/Obc Minority… — Pension and Retirement Benefits | Delhi HC (2024)

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$~13

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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- W.P.(C) 9357/2009

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MUKESH KUMAR .....Petitioner

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Through: Mr. Abhiesumat Gupta and Mr. Arun Bhattacharya, Advocates with Petitioner in person.

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versus

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DELHI SC/ST/OBC MINORITY & HANDICAPPED FINANCIAL DEVELOPMENT CORPORATION LTD. & ORS.

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.....Respondents

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Through: Mr. Deepak Dewan and Ms. Muskan Dewan, Advocates for R-1

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CORAM:

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HON'BLE MS. JUSTICE JYOTI SINGH

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O R D E R % 18.12.2024

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This writ petition is preferred on behalf of the Petitioner laying a challenge to order dated 26.11.2008 passed by Respondent No.1 whereby representation of the Petitioner dated 21.05.2007 for considering him for promotion to the post of Lower Division Clerk (‘LDC’) with retrospective effect from 18.12.1993 was rejected. Direction is sought to Respondent No.1 to promote the Petitioner as LDC w.e.f. 13.03.1996 on parity with Respondents No.2 to 4.

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Case of the Petitioner is that he was appointed as a Peon on 23.07.1993 and was regularized vide letter dated 26.10.1993. On 18.12.1993, Respondent No.1 conducted Limited Departmental Test for proficiency in shorthand and typing through the agency of Government of

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W.P.(C) 9357/2009

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This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 07/01/2025 at 12:15:08

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NCT of Delhi. Petitioner appeared in the test and was declared successful. Respondent No.1 appointed Respondents No.2 to 4 on temporary basis as LDCs for 06 months in 1994 based on the test undertaken by them in 1993 i.e. prior to the Petitioner. However, due to abolition of 03 posts of LDC, Respondents No.2 to 4 were reverted to their substantive appointments in Group ‘D’ on 17.05.1994.

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It is averred that Respondent No.1 invited applications to fill up the post of LDC on purely temporary basis on 12.09.1996 through promotion and Petitioner was promoted vide office order dated 06.12.1996. Petitioner appeared in the shorthand/typing test conducted in 1996 but did not clear the same and finally cleared the test on 29.08.1999. Respondents No.2 to 4 did not appear in the proficiency/type test in 1996 or 1999. DPC was convened on 20.05.2002 and based on the recommendations, private Respondents and 04 others, namely, Mam Chand, Kuldeep Singh, Dhan Bahadur Thapa and Bed Pal Singh were given promotions as LDC from retrospective dates, i.e. 06.12.1996, 06.12.1996, 06.12.1996 and 29.08.1999 respectively, while Petitioner was promoted from 29.08.1999. This decision was primarily based on the dates on which the said employees had successfully cleared the proficiency/type test.

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Petitioner represented on 25.06.2003 requesting Respondent No.1 to regularize him from 06.12.1996 the date on which he was promoted on ad hoc basis and basis the proficiency/type test cleared by him in 1993 as was done in the case of Respondents No.2 to 4, namely, Sanjay Kumar, Sushil Kumar and Dayal Chand, who had cleared the proficiency/type test on 10.07.1993. This was followed by a representation on 21.05.2007, which was rejected by the impugned order dated 26.11.2008.

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W.P.(C) 9357/2009

Learned counsel for the Petitioner submits that as per the Recruitment Rules for promotion to the post of LDC, a Group ‘D’ employee having qualification of Matric/High School/10+2 or equivalent from a recognized Board or School was eligible for promotion on seniority-cum-fitness basis and subject to passing the typing test, which was qualifying in nature. Petitioner successfully cleared the test in 1993 and was not required to appear in the test again. On account of some misunderstanding, Petitioner appeared again in the typing test twice in 1996 and once in 1999, but due to this he cannot be deprived of the benefit of qualifying the test in 1993. When DPC was convened on 20.05.2002, all others were granted promotions from retrospective dates, basis the years in which they cleared the type test but factum of Petitioner having qualified the test in 1993 was not brought to the notice of the DPC. Reliance is placed on the legal opinion given by the Legal Consultant on 27.07.2016 to Respondent No.1, wherein it was brought out that injustice was done to the Petitioner and the mistake should be rectified by granting him promotion based on the result of the typing test conducted on 18.12.1993, which he cleared with 31 marks. It is fairly conceded that Petitioner cannot claim seniority over the private Respondents who had cleared the typing test in July, 1993 but he deserves to be placed above Mam Chand, who had cleared the test on 21.09.1996 albeit he was otherwise senior to the Petitioner in the Group ‘D’ post.

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To counter the argument of seniority for reckoning the promotion of the Petitioner above Mam Chand, Kuldeep Singh, Dhan Bahadur Thapa and Bed Pal Singh, who are senior to the Petitioner, it is argued that consistently, Respondent No.1 has been giving promotions based on the year of clearing the typing test after drawing up the zone of consideration as per seniority in

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W.P.(C) 9357/2009

Group ‘D’ posts and this is evident from the fact that Mam Chand being junior to Bed Pal had been placed in seniority above him as he cleared the typing test on 21.09.1996, while Bed Pal cleared the same on 29.08.1999.

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Counsel for the private Respondents does not contest the case of the Petitioner since during the course of hearing, it is conceded on behalf of the Petitioner that he will not claim seniority above Respondents No. 2 to 4. 8. Learned counsel for Respondent No.1 submits that as per Recruitment Rules, promotion to the post of LDC is on seniority-cum-fitness basis for Group ‘D’ posts. 03 Group ‘D’ employees, namely, Sanjay Kumar, Sushil Kumar and Dayal Chand were promoted as LDCs on 12.11.1993 on ad hoc basis. Petitioner had cleared the typing test on 18.12.1993 but as no vacancy was available, he was not promoted as LDC. In 1994, 03 posts of LDC were abolished and these 3 employees were reverted to their substantive Group ‘D’ posts on 17.09.1994.

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It is further submitted that a DPC was held on 05.12.1996 for 05 vacancies of LDC and Mam Chand, Kuldeep Singh, Dhan Bahadur Thapa, Bed Pal Singh and Petitioner were given ad hoc promotions w.e.f. 06.12.1996. Petitioner failed in the typing test held on 21.09.1996 and 09.05.1999 but he finally cleared the same on 29.08.1999. On recommendations of DPC convened on 20.05.2002, Mam Chand, Kuldeep Singh and Dhan Bahadur Thapa were regularized in the post of LDC from the date of passing the test on 06.12.1996 while Petitioner was regularized from 29.08.1999. Sanjay Kumar and Dayal Chand were granted promotions w.e.f. 20.05.2002 vide order dated 09.01.2003 despite recommendations of DPC to promote them from 13.03.1996. On their representation which was

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W.P.(C) 9357/2009

considered by the Competent Authority, Sanjay Kumar, Sushil Kumar and Dayal Chand were promoted from 13.03.1996.

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It is argued that Petitioner did not clear the typing tests held on 21.09.1996 and 09.05.1999 and it was only when he cleared the test on 29.08.1999 that his services were regularized as LDC. Petitioner cannot claim promotion over Mam Chand, Kuldeep Singh, Dhan Bahadur Thapa and Bed Pal Singh as they are admittedly senior to him being at seniority positions 24, 53, 54 and 18 while Petitioner is at position 61. Promotion to the post of LDC is on the basis of seniority-cum-fitness and the criteria of seniority cannot be bypassed and therefore, Petitioner’s request for promotion from 1996 was correctly rejected by the Competent Authority. 11. Heard learned counsels for the parties and examined their contentions. 12. The narrow controversy before this Court is whether Petitioner is entitled to promotion from 1996 at par with Respondents No.2 to 4 with consequent benefit of seniority below the 03 Respondents but above Mam Chand, Kuldeep Singh, Dhan Bahadur Thapa and Bed Pal Singh, who are senior to him in the seniority list of Group ‘D’ employees in Respondent No.1. Petitioner has been granted regular promotion as LDC from 29.08.1999 when he cleared the typing test for the second time.

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There is no dispute that as per the applicable Recruitment Rules, promotion to the post of LDC is on seniority-cum-fitness basis from the feeder Group ‘D’ posts. During the course of hearing, two important facts have emerged. It is conceded that the typing test in question is only qualifying in nature and having once cleared the test, an employee is not required to undertake the same again. It is also not disputed that a Group ‘D’ employee has to qualify the typing/proficiency test for grant of promotion as

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W.P.(C) 9357/2009

LDC and that promotion based on recommendation of DPC and consequent seniority in the post of LDC is reckoned from the date of clearing the typing test. This is amply demonstrated from the documents filed by Respondent No.1, which show that Mam Chand being junior to Bed Pal in Group ‘D’, was placed senior to Bed Pal in the list of LDCs as he cleared the typing test on 21.09.1996 while Bed Pal cleared the test on 29.08.1999.

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Respondents No.2 to 4 cleared the typing test on 10.07.1993 and were given retrospective promotions from 13.03.1996 when the vacancies had arisen, based on recommendations of DPC held on 10.05.2002. Clearly the typing test conducted in 1993 was treated as the qualifying test as admittedly, they did not appear in the subsequent tests held in 1996 and 1999. This was for the obvious reason that having cleared the typing test once, Respondents No.2 to 4 were not required to give the test again. The chart filed by Respondent No.1 shows that all others were also regularized as LDCs taking the date of clearing the typing test as the fulcrum point. Petitioner had admittedly cleared the typing test on 18.12.1993 but was not promoted as there was no vacancy of LDC. Even the Legal Consultant of Respondent No.1 brought forth and rightly so, that it ought to have been brought to the notice of DPC that Petitioner had cleared the test in 1993, in which case his claim could have been considered at par with Respondents No.2 to 4 and not doing so injustice has been caused to him.

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It is true that Petitioner did appear for the typing test on 21.01.1996, 09.05.1999 and 29.08.1999, but this was on his erroneous understanding that he was required to give the test again and again. Respondent No.1 concedes that the typing test is only qualifying and once an employee is successful, he is not required to undertake the test again. Therefore, merely because the

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W.P.(C) 9357/2009

Petitioner appeared in the tests in 1996 and 1999, he cannot be put to a disadvantage and must be given the benefit of clearing the test in 1993 as has been given to the others. Once this benefit is given to him, Petitioner will be entitled to be placed below Dayal Chand but above Mam Chand in the seniority list of LDCs. Mam Chand, Kuldeep Singh, Dhan Bahadur Thapa and Bed Pal Singh are senior to the Petitioner in the Group ‘D’ posts cannot be disputed but Respondent No.1 has fixed their inter se seniority by taking the date of clearing the test and which is why Mam Chand being junior to Bed Pal was placed above him.

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In view of the aforesaid, this writ petition is allowed to the extent that case of the Petitioner deserves to be re-considered by the DPC held on 20.05.2002 for retrospective promotion from 06.12.1996, based on the test which he cleared in 1993 as was done for Respondents No.2 to 4. The review DPC shall be convened within three months from today to reconsider the case of the Petitioner in light of the above observations of the Court. It may, however, be added that before taking a final decision, representations will be called for from Mam Chand, Kuldeep Singh, Dhan Bahadur Thapa and Bed Pal Singh since they have not been impleaded in the present petition which was filed in 2017 and their version will be taken into account. 17. Writ petition stands disposed of in the aforesaid terms.

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JYOTI SINGH, J

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DECEMBER 18, 2024/shivam

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W.P.(C) 9357/2009

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This is a digitally signed order.

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The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 07/01/2025 at 12:15:08

Mukesh Kumar v. Delhi Sc/St/Obc Minority & Handicapped Financial Development Corporation Ltd. & Ors.

Case brief

What is this about?

What did the court decide?

Mukesh Kumar v. Delhi Sc/St/Obc Minority & Handicapped Financial Development Corporation Ltd. & Ors.

Case brief

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What did the court decide?

What the court decided

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