A. V. Prem Nath vs Union Of India & Anr.

Per: Justice Ranjit More, Chairman:

Heard Mr. M. K. Bhardwaj, learned counsel for the applicant, and Mr. S. N. Verma, learned counsel for the respondents.

By filing the present O.A., the applicant has challenged the order dated 09.10.2023, whereby he was prematurely retired from service under Fundamental Rule 56(j), as corrected by corrigendum dated 10.10.2023, as well as the subsequent order dated 17.06.2025, whereby his representation against the order of premature retirement came to be rejected. The applicant seeks quashing of the aforesaid orders and his reinstatement in service with all consequential benefits. The respondents, on the other hand, oppose the O.A. and seek its dismissal.

The brief facts giving rise to the present O.A. are as follows:

The applicant was appointed to the Entry Grade of the National Capital Territory of Delhi, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli Civil Service (DANICS), 1997 batch, on the basis of the Civil Services Examination, 1996 conducted by the Union Public Service Commission. His probation commenced w.e.f. 01.05.1998. The applicant claims entitlement to the Selection Grade w.e.f. 01.01.2006, and thereafter to JAG-II and JAG-I w.e.f. 01.01.2011 and 01.01.2016, respectively. The record shows that, while the applicant had been granted Selection Grade on ad-hoc basis w.e.f. 01.01.2006, his case for regular promotion to the Selection Grade and thereafter to JAG-II and JAG-I was kept under the sealed-cover procedure.

Aggrieved by the adoption of the sealed-cover procedure and non-grant of promotion, the applicant approached this Tribunal by filing O.A. No. 2224/2020. The said O.A. was dismissed by the Tribunal vide order dated 07.01.2021. The applicant thereafter challenged the said order before the Hon’ble High Court of Delhi by filing W.P.(C) No. 6856/2021. The said writ petition was disposed of by the Hon’ble High Court vide judgment and order dated 25.05.2023.

By the aforesaid judgment dated 25.05.2023, the Hon’ble High Court held that the sealed-cover/deemed sealed-cover procedure adopted in the case of the applicant was not legal and directed the respondents to open the sealed covers and, if the applicant was found suitable, grant him Selection Grade, JAG-II and JAG-I on regular basis from the dates on which his batchmates and juniors were promoted. The Hon’ble High Court further directed payment of arrears of pay with 9% per annum interest, along with other consequential benefits, within four weeks from the date of the judgment.

The aforesaid judgment dated 25.05.2023 was thus required to be complied with within the stipulated period. However, instead of implementing the said judgment, the respondents proceeded to pass the order dated 09.10.2023, whereby the applicant was prematurely retired from service under FR 56(j). A corrigendum to the said order was subsequently issued on 10.10.2023. The applicant thereafter submitted a representation against the order of premature retirement, which came to be rejected by order dated 17.06.2025. Aggrieved by the aforesaid orders, the applicant has filed the present O.A.

It is necessary to notice the events which occurred subsequent to the passing of the impugned order under FR 56(j). The respondents thereafter challenged the judgment and order dated 25.05.2023 passed by the Hon’ble High Court of Delhi by filing S.L.P.(C) No. 7631/2024 before the Hon’ble Supreme Court, along with an application seeking condonation of delay of 170 days in filing the said S.L.P. The said delay was condoned by the Hon’ble Supreme Court vide order dated 22.03.2024 and, while issuing notice, the operation of the impugned judgment and order of the Hon’ble High Court was stayed.

The S.L.P. was thereafter taken up as an after-notice matter before the Hon’ble Supreme Court. Upon hearing the petitioners, the Hon’ble Supreme Court, vide order dated 24.05.2024, noticed that the explanation furnished for the delay of 170 days was founded, inter alia, upon the respondents having proceeded to retire the applicant under Rule 56(j) of the Fundamental Rules and Rule 42 of the CCS (Pension) Rules, despite the judgment and order dated 25.05.2023 of the Hon’ble High Court being in operation. The Hon’ble Supreme Court, prima facie, found the said explanation insufficient and issued notice to the petitioners calling upon them to show cause as to why the order dated 22.03.2024 condoning the delay of 170 days in presenting the S.L.P. and issuing notice thereon should not be recalled.

The S.L.P. No. 7631/2024 was thereafter placed before the learned Division Bench of the Hon’ble Supreme Court on 04.12.2024. Upon hearing the petitioners, the Hon’ble Supreme Court found sufficient cause for the delay of 170 days and discharged the show-cause notice issued earlier. Thereafter, upon consideration of the matter on merits, the Hon’ble Supreme Court found no ground for interference under Article 136 of the Constitution of India and dismissed the S.L.P. on merits.

The applicant thereafter filed a Contempt Petition before the Hon’ble Supreme Court, being Diary No. 28554/2025, alleging non-compliance with the judgment and order dated 25.05.2023 passed by the Hon’ble High Court in W.P.(C) No. 6856/2021. During the pendency of the said Contempt Petition, the respondents passed three orders dated 24.03.2025, 01.12.2025 and 23.03.2026, whereby the applicant was granted Selection Grade, JAG-II and JAG-I, respectively, retrospectively with effect from 01.01.2006, 01.01.2011 and 01.01.2016, respectively.

It is the case of the applicant, as advanced by Mr. Bhardwaj, learned counsel appearing for the applicant, that:

In the above circumstances, learned counsel for the applicant contends that the Joint Secretary (UT), MHA, who passed the order prematurely retiring the applicant under FR 56(j), was not the appointing authority of the applicant. It is submitted that the applicant was appointed by the President of India and, therefore, the power to prematurely retire him could not have been exercised by the Joint Secretary, being an authority subordinate to the appointing authority. Accordingly, it is contended that the impugned order is liable to be quashed and set aside on the ground that the same was passed by an authority not competent to do so.

Mr. Verma, learned counsel for the respondents, vehemently opposes the O.A. by relying upon the counter affidavit. He submits that the validity of the impugned order has to be examined with reference to the date on which the order was passed and that subsequent developments cannot render an order, which was otherwise validly passed on the relevant date, invalid. He submits that, at the time when the impugned order was passed, the applicant was holding the post of Selection Grade on an ad hoc basis and, therefore, the Joint Secretary was the competent authority to pass the order under FR 56(j).

He further submits that the proposal for premature retirement of the applicant under FR 56(j) was considered and reviewed under the authority of the President and, therefore, the applicant cannot contend that the order under FR 56(j) was required to be passed by the President, whom the applicant claims to be his appointing authority.

In substance, Mr. Verma submits that, at the time when the proposal for premature retirement of the applicant was considered, the applicant was serving in the Entry Grade of DANICS and, according to the respondents, continued to hold the said substantive post, which was a Group ‘B’ Gazetted post. He submits that the applicant had not been promoted to the Selection Grade on a regular basis prior to his premature retirement and, consequently, the Joint Secretary (Union Territories), Ministry of Home Affairs, was the competent authority to pass the order under FR 56(j). It is, therefore, contended that the impugned order passed by the Joint Secretary was within his competence and cannot be assailed on the ground of lack of authority.

Mr. Verma, learned counsel for the respondents, further submits that the order under FR 56(j) was passed after taking into consideration the various disciplinary proceedings and criminal cases/FIRs involving the applicant. The details thereof have been set out in paragraph 19 of the counter affidavit, which reads as under:

In the above circumstances and in view of the facts and submissions advanced, Mr. Verma submits that no interference is warranted by this Tribunal with the present O.A. and that the same is devoid of merit and deserves to be dismissed.

Having heard learned counsel for the parties and having perused the pleadings and the material placed on record, we find merit in the present O.A.

Admittedly, there is no dispute with regard to the following facts:

There is also no dispute that the applicant was granted Selection Grade with effect from 01.01.2006 on an ad hoc basis and that he was thereafter eligible to be considered for JAG-II and JAG-I. The sealed cover procedure was adopted in respect of his promotion on account of the pendency of the criminal proceedings arising out of the FIR. It is also not in dispute that the applicant’s juniors were promoted to JAG-II and JAG-I.

The applicant challenged the sealed cover procedure adopted by the respondents by filing O.A. No. 2224/2020. However, the said O.A. was dismissed by this Tribunal vide order dated 07.01.2021. The applicant thereafter approached the Hon’ble High Court of Delhi by filing W.P.(C) No. 6856/2021. The said writ petition was disposed of by the Division Bench of the Hon’ble High Court vide judgment and order dated 25.05.2023. The Hon’ble High Court made the following observations in paragraphs 7 to 7.2:-

Thus, the respondents were duty-bound to comply with the judgment and order of the Hon’ble High Court by opening the sealed covers and, if the applicant was found suitable, granting him Selection Grade, JAG-II and JAG-I from the dates on which his batchmates and juniors were promoted. The Hon’ble High Court also directed that the arrears of pay be released with interest at the rate of 9% per annum and specifically directed the respondents to comply with the said directions within a period of four weeks.

However, instead of challenging the said judgment and order before the Hon’ble Supreme Court within the prescribed period, the respondents challenged the same by filing S.L.P.(C) No. 7631/2024 after a delay of 170 days. In the meantime, they proceeded to invoke FR 56(j) and prematurely retired the applicant on 09.10.2023.

In our considered view, when the judgment and order of the Hon’ble High Court dated 25.05.2023 was operating and had not been stayed or otherwise interfered with, the respondents ought not to have proceeded to invoke the provisions of FR 56(j) and prematurely retire the applicant without first obtaining appropriate orders from the Hon’ble Supreme Court. This aspect also finds support from the order dated 24.05.2024 passed by the Hon’ble Supreme Court in S.L.P.(C) No. 7631/2024. For ready reference, the said order is reproduced as under:-

The Hon’ble Supreme Court ultimately, vide order dated 04.12.2024, discharged the show-cause notice issued earlier, accepted the explanation for the delay of 170 days and found no ground to interfere with the judgment and order of the Hon’ble High Court in exercise of its jurisdiction under Article 136 of the Constitution. Accordingly, S.L.P.(C) No. 7631/2024 was dismissed on merits.

The applicant thereafter, being aggrieved by the continued non-compliance with the directions contained in the judgment and order of the Hon’ble High Court, was constrained to file a Contempt Petition before the Hon’ble Supreme Court, being Diary No. 28554/2025. During the pendency of the said Contempt Petition, the respondents ultimately granted the applicant Selection Grade, JAG-II and JAG-I retrospectively with effect from 01.01.2006, 01.01.2011 and 01.01.2016, respectively, vide orders dated 24.03.2025, 01.12.2025 and 23.03.2026, respectively. The said orders are reproduced hereunder for ready reference:-

The aforesaid orders passed by the respondents show that the applicant has ultimately been granted Selection Grade, JAG-II and JAG-I retrospectively with effect from 01.01.2006, 01.01.2011 and 01.01.2016, respectively. In view of the aforesaid subsequent developments, we are of the considered view that the impugned order passed under FR 56(j) cannot be sustained and is liable to be quashed and set aside for the following reasons:

Thus, in view of the aforesaid facts and circumstances, we are of the considered view that, as on 01.01.2006, the applicant was entitled to Selection Grade, which is a Group ‘A’ post, and the said entitlement has subsequently been recognised by the respondents with retrospective effect. Likewise, the applicant has been granted JAG-II and JAG-I retrospectively with effect from 01.01.2011 and 01.01.2016, respectively, both of which are also Group ‘A’ posts. Since the applicant’s appointment was by the President of India, the Joint Secretary was not the competent authority to prematurely retire the applicant under FR 56(j). Accordingly, the impugned order passed by the Joint Secretary cannot be sustained.

So far as the submission of Mr. Verma, learned counsel for the respondents, that the validity of the impugned order is required to be examined with reference to the date on which it was passed and that the subsequent developments cannot invalidate an order validly passed on the relevant date, is concerned, we are unable to accept the same in the facts and circumstances of the present case. As regards his submission that the impugned order under FR 56(j) was passed after taking into consideration the various disciplinary proceedings and FIR pending against the applicant, we are not impressed by the same, inasmuch as the impugned order itself was not passed by the competent authority. The fact that the aforesaid proceedings were taken into consideration cannot cure the fundamental defect of lack of competence in the authority passing the impugned order. The last submission of Mr. Verma that the applicant’s representation against the impugned order was considered and rejected and, therefore, no interference is called for, is also not acceptable. Rejection of the representation cannot validate an order which was passed by an authority not competent to do so.

It is a settled principle of law that where the law requires a particular act to be done in a particular manner, such act must be done in that manner alone, and all other modes of doing the act are necessarily excluded. The validity of an action taken by a statutory or administrative authority must, therefore, be tested with reference to the manner and procedure prescribed by law. (Mohinder Singh Gill & Anr. v. Chief Election Commissioner, (1978) 1 SCC 405; Asha Rani Gupta v. Ravindera Memorial Public School & Anr., LPA No. 627/2018, decided on 08.10.2024, para 20).

An order passed by an authority lacking competence cannot be validated merely because an appeal or representation against such order is subsequently considered and dismissed by the President or any other higher authority. The defect of lack of jurisdiction or competence goes to the root of the matter and cannot be cured by such subsequent consideration or rejection.

Taking into consideration the totality of the facts and circumstances of the case, we are of the considered view that the present O.A. deserves to be allowed. Accordingly, the O.A. is allowed with all consequential reliefs. The impugned orders are hereby quashed and set aside. The respondents are directed to reinstate the applicant within a period of four weeks from the date of receipt of a copy of this order. The applicant shall also be entitled to all consequential benefits in accordance with law.

The O.A. is accordingly allowed with the aforesaid observations. Pending M.A.s, if any, shall also stand disposed of. There shall be no order as to costs.