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TMI Blog2023 (9) TMI 1503X X X X Extracts X X X X X X X X Extracts X X X X ..... ultra vires. The order dated 26.09.2008 of the High Court declaring Rule 4(b) of the Rules is set aside. Since the declaration of the High Court holding Rule 4(b) is set aside to be invalid consequently, the grievance of the Respondent No. 1 about any illegality in denial of promotion to her also does not arise. No case has been made out as to how in the event of Rule 4(b) being valid, how the denial of promotion to her was unjustified for in the years 1999, 2000 and for the years before 2007. Appeal allowed. - J.K. MAHESHWARI AND K.V. VISWANATHAN, JJ. For the Appellant : R. Balasubramanian, Sr. Adv., Aishwarya Bhati, ASG, Gopal Jha, Sunita Sharma, Shagun Thahir, Rajan Kumar Chourasia, Bhuvan Mishra, Anuj Udupa, Sujata Blayadhi, Advs. and Gurmeet Singh Makker, AOR For the Respondent : Shibashish Misra, AOR, Party-in-Person, Manu Mridul, Pratap Singh Rawat, Advs. and Brij Bhushan, AOR JUDGMENT J.K. MAHESHWARI, J. 1. This Appeal has been filed by the Appellants challenging the judgment dated 26.09.2008 passed by the High Court of Orissa at Cuttack (for short the High Court ) in Writ Petition (C) No. 7080 of 2005. By the said judgment, the High Court, while allowing the writ petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jected vide memorandum dated 16.04.2001 communicated by Joint Director, National Informatics Centre. 3. The Respondent No. 1, by filing OA No. 148 of 2001 on 22.04.2001, assailed the order rejecting the representation and the promotion order of the incumbent juniors (Respondent No. 5 and 6 therein) dated 14.02.2001 before the CAT. Vide order dated 04.05.2005, CAT disposed of the said original application and observed as under: In the circumstances the Respondents will be well advised to clarify the guidelines of selection of scientists for promotion from one grade to another by explaining the objective of ACR assessment and objectives of assessment through interview for promotion and whether the combined performance of a candidate at the work place as well as interview determined the final outcome of the selection process. Once the promotion policy is thus clearly spelt out, no dispute would arise. Therefore in the interest of fairness and justice, we would call upon the Respondents to inform the applicant about her rating by the interview board and as to why inspite of her above average performance at the work place, she was not considered ripe enough for promotion. We are not how ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resaid directions and/or the amendments that may be carried out by the Union of India and if the Petitioner is found suitable, be given promotion from the date of her entitlement, on notional basis, so that the said period can be taken into account for her future promotions. 5. We have perused the averments made in the original application filed before the CAT on 22.04.2001 and the relief as prayed, by which it is apparent that Rule 4(b) of the Rules was not under challenge because the original application was filed prior to notifying the Rules vide office memorandum dated 06.08.2001. For ready reference, prayer made in the original application is reproduced as under: It is therefore humbly prayed that this Hon'ble Tribunal may be graciously pleased to issue notice to the Respondents for show cause as to why the prayer made here under shall not be allowed. If the Respondents failed to show cause or upon insufficient causes shown be pleased to: i. quash the promotion order of Respondents No. 5 and 6 dated 14.2.2001. ii. direct the Respondents to give promotion to the applicant to the rank of technical director from the date when her juniors promoted to the said post i.e. from 1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt was justified in exercising jurisdiction to declare Rule 4(b) as ultra vires? In response, learned Senior Counsel has fairly stated that it is a defect in the pleadings as well as in the relief sought before the CAT and in the writ petition. But still, they made an unsuccessful attempt to satisfy this Court that the said Rule appears to be discriminatory and therefore the High Court has rightly exercised the jurisdiction while passing the impugned order. It is a trite law that for striking down the provisions of law or for declaring any Rules as ultra vires, specific pleading to challenge the Rules and asking of such relief ought to be made, that is conspicuously missing in the present case. In the absence of such a pleading, the Union of India did not have an opportunity to rebut the same. The other side had no opportunity to bring on record the object, if any, behind the Rules that were brought into force. We are also of the considered view that, in the writ petition seeking a writ of certiorari challenging the order of the CAT, the High Court ought not to have declared Rule 4(b) as ultra vires in the above fact situation. Therefore, the High Court was not justified to decla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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