Central Administrative Tribunal - Ernakulam
V Suresh vs The Comptroller And Auditor General Of ... on 11 May, 2022
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00389/2021,
Original Application No.180/00595/2021
&
Original Application No.180/00596/2021
Wednesday, this the 11th day of May 2022
CO RAM :
HON'BLE Mr.P.MADHAVAN, JUDICIAL MEMBER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER
Original Application No.180/00389/2021
V. Suresh, aged 58 years,
S/o. V. Vaidyanatha Iyer,
Assistant Audit Officer,
Office of the Principal Accountant General (Audit-II),
Kerala, Trivandrum - 695 001.
Residing at : CGRA 21, Aasheervad, Continental Gardens,
Vattiyoorkavu (P.O), Thiruvananthapuram - 695 013. ...Applicant
(By Advocate Mr.T.C.Govindaswamy)
versus
1. The Comptroller & Auditor General of India,
No. 10, Bahadur Shah Zafar Marg, New Delhi - 110 124.
2. The Principal Accountant General (Audit -I),
Kerala, Thiruvananthapuram - 695 001.
3. Union Public Service Commission,
Dholpur House, Shahjahan Road,
New Delhi - 110 001, through its Secretary. ...Respondents
(By Advocates Mr.K.I.Mayankutty Mather [R1-2]
& Mr.Thomas Mathew Nellimoottil [R3])
Original Application No.180/00595/2021
1. Muraleedharan Nair N., aged 59 years,
S/o. Neelakantan Pillai N.,
Assistant Accounts Officer,
Office of the Principal Accountant General (A&E),
Kerala, Trivandrum - 695 001.
Residing at : TCS/2589(3), "Ragam", BNRA-114A,
Kowdiar (P.O), Trivandrum - 695 003.
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2. K. Murugan (No. 2), aged 59 years,
S/o. C. Kumaravel,
Assistant Accounts Officer,
Office of the Principal Accountant General (A&E),
Kerala, Trivandrum - 695 001.
Residing at : TC -19/131(12) "Saayoojyam",
Sreemanthra Gardens, Ambedkar Road, Aramada (P.O) - 695 032.
3. Nandikishore K., aged 58 years,
S/o. N. Kunhiraman Nair,
Assistant Accounts Officer,
Office of the Principal Accountant General (A&E),
Kerala, Branch Kozhikode - 673 004.
Residing at : "Vrindavan", Kacherikunnu,
Pookunnu (P.O), Mankave, Kozhikode - 673 007.
4. Jaidev K.P., aged 58 years,
S/o. Vasudevan P.,
Assistant Accounts Officer,
Office of the Principal Accountant General (A&E),
Kerala, Branch Kozhikode - 673 006.
Residing at : No. B-31, Saigeetha,
Vrindhavan Housing Colony,
Chevayoor, Kozhikode - 673 017. ...Applicants
(By Advocate Mr.T.C.Govindaswamy)
versus
1. The Comptroller & Auditor General of India,
No. 10, Bahadur Shah Zafar Marg, New Delhi - 110 124.
2. The Principal Accountant General (A&E),
Kerala, Thiruvananthapuram - 695 001.
3. Union Public Service Commission,
Dholpur House, Shahjahan Road,
New Delhi - 110 001, through its Secretary. ...Respondents
(By Advocates Mr.K.I.Mayankutty Mather [R1-2]
& Mr.Thomas Mathew Nellimoottil [R3])
Original Application No.180/00596/2021
1. Thomas K. Prakash, aged 59 years,
S/o. Thomman Thomas,
Assistant Accounts Officer,
Office of the Principal Accountant General (A&E),
Kerala, Branch Ernakulam - 682 017.
Residing at : Arunima, Kochukavala,
Vaikom, Kottayam - 686 141.
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2. Santhi K.P., aged 59 years,
W/o. K.C. Sankaranarayanan,
Assistant Accounts Officer,
Office of the Principal Accountant General (A&E),
Kerala, Branch Thrissur - 680 020.
Residing at : Thushara, M.G. Nagar, 12 Street,
Chembukkavu, Trichur - 680 020.
3. Usha Kumari R., aged 59 years,
W/o. Sadanandan M.M,
Assistant Accounts Officer,
Office of the Principal Accountant General (A&E),
Kerala, Kozhikode - 673 006.
Residing at : No. 33/560, Dhanyatha,
A R Camp Road, Marikkunnu (P.O),
Kozhikode - 673 012.
4. Abdul Rassak M.T., aged 59 years,
S/o. Abdurahiman,
Assistant Accounts Officer,
Office of the Principal Accountant General (A&E),
Kerala, Kozhikode - 673 004.
Residing at : Meletheruvath House,
Punnasseri (P.O), Narikuni (via),
Kozhikode - 673 585.
5. Syamkumar K.P., aged 59 years,
S/o. Radhakrishnan P.,
Assistant Accounts Officer,
Office of the Principal Accountant General (A&E),
Kerala, Thrissur Branch - 680 020.
Residing at : No. 13/57, Valayil House,
Kunnambath Lane, Ayyanthole, Thrissur - 680 003.
6. Valsala M. Menon, aged 59 years,
W/o. A. Madhavankutty,
Assistant Accounts Officer,
Office of the Principal Accountant General (A&E),
Kerala, Thrissur - 680 020.
Residing at : TMC VII/1557, 'Lavanyam' ARA 7,
R.V. Puram (P.O), Trichur - 680 631. ...Applicants
(By Advocate Mr.T.C.Govindaswamy)
versus
1. The Comptroller & Auditor General of India,
No. 10, Bahadur Shah Zafar Marg, New Delhi - 110 124.
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2. The Principal Accountant General (A&E),
Kerala, Thiruvananthapuram - 695 001.
3. Union Public Service Commission,
Dholpur House, Shahjahan Road,
New Delhi - 110 001, through its Secretary. ...Respondents
(By Advocates Mr.K.I.Mayankutty Mather [R1-2]
& Mr.Thomas Mathew Nellimoottil [R3])
These applications having been heard on 4 th April 2022, the Tribunal on
11th May 2022 delivered the following :
ORDER
Per : Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER The three O.As are being taken together as the issues agitated are essentially similar. In O.A.No.180/596/2021 there are six applicants who are working as Assistant Accounts Officer under the 2 nd respondent, Principal Accountant General (A&E), Thiruvananthapuram. In O.A.No.180/595/2021 there are four applicants who are also working as Assistant Accounts Officer under the same 2 nd respondent. In O.A.No.180/389/2021 there is a single applicant working as Assistant Audit Officer under the 2nd respondent who in his case who is the Principal Accountant General (Audit-II). In the first two O.As mentioned above, ie., O.A.No.180/596/2021 and O.A.No.180/595/202, the applicants are all Assistant Accounts Officer working in the substantive scale Level 8 of the Pay Matrix. In O.A.No.180/389/2021 the applicant is also in substantive scale Level 8 of the Pay Matrix. One of the applicants, namely the 3 rd applicant in O.A.No.180/596/2021 perhaps has since retired from service on superannuation on 31.03.2022, whereas, the other applicants in O.A.No.180/595/2021 and O.A.No.180/596/2021 will be retiring on superannuation from 31.5.2022 onwards on different dates. The applicant in O.A.No.180/389/2021 will be retiring on superannuation on 31.07.2023.
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2. All the applicants in the three Original Applications are aggrieved by the delay in their promotion to the next level, as Senior Accounts Officer (Group A) in respect of the applicants in O.A.No.180/595/2021 and O.A.No.180/596/2021 and as Senior Audit Officer (Group A) in respect of the applicants in O.A.No.180/389/2021. The promotion to the level of Senior Accounts Officer/Senior Audit Officer will be to Level 10 of the Pay Matrix. The concerned recruitment rules which govern the promotion of all the applicants in the Original Applications is the Indian Audit and Accounts Department, Senior Accounts Officer and Senior Audit Officer, Group A Posts Recruitment Rules, 2019, a copy of which has been produced in all the O.As' at Annexure A-1. As per these Rules, Assistant Accounts Officers or Assistant Audit Officers in Level 8 of the Pay Matrix (the scale of pay attached to the post) with 7 years of regular service including service rendered in the non-functional grade of Level 9 in the Pay Matrix and who have successfully completed mandatory training of 2 to 4 weeks in the field as prescribed by the department are eligible to be considered for promotion as Senior Accounts Officer/Senior Audit Officer (Group A). The method of recruitment is 'promotion failing which by deputation'. All the applicants submit that they are all eligible to be considered for promotion as Senior Accounts Audit Officer as the case may be, and that there are large number of vacancies for the vacancy years 2020 and 2021 etc. The applicants in O.A.No.180/596/2021 claim that they were eligible for promotion against the vacancies of the year 2020. They have sought promotion as Senior Accounts Officer with effect from 01.01.2020 with all consequential benefits emanating therefrom including fixation of pension, retirement benefits etc. Similarly, the applicants in O.A.No.180/595/2021 have claimed promotion against the vacancies of Senior Accounts Officer against the -6- year 2021. They have sought promotion with effect from 01.01.2021 with similar consequential benefits. The applicant in O.A.No.180/389/2021 is seeking promotion as Senior Audit Officer against the vacancies of the year 2021 with effect from 01.01.2021, with similar consequential benefits.
3. The main grievance of the applicants lies in that the Departmental Promotion Committee (DPC) to clear their promotion had not been convened as per the normal schedule governing the same. They submit that the respondents were bound to maintain a model calender for holding of DPCs', according to which the DPC should have been convened well in advance and the promotion orders issued as on 1st January of the vacancy year or as and when vacancies arises, whichever is earlier. In this connection, they have brought to notice circulars of the Department of Personnel & Training (DoP&T) issued on 08.09.1998, 16.06.2000, 28.01.2015, 08.05.2017 and 27.08.2021. In the O.A.No.180/596/2021, copies of these circulars have been produced at Annexure A-2, Annexure A-3, Annexure A-4, Annexure A-5 and Annexure A-11. Taken together, all these circulars direct the Ministries/Departments to ensure strict compliance so that the desired objective of convening the DPC Meeting/preparation of approved select panels as per the prescribed time can be achieved. The latest circular dated 27.08.2021, produced at Annexure A-11 in O.A.No.180/596/2021, has reiterated the necessity of convening the DPCs' in time and effecting promotion without delay. It is submitted that inspite of these instructions, the DPCs' for the posts of Senior Accounts/Audit Officer have not been convened in time for the vacancies of the years 2020 and 2021 and, therefore, no promotions have been ordered inspite of the existence of a number of vacancies for these two years. For the position of -7- Senior Audit Officer agitated by the single applicant in O.A.No.180/389/2021, it is submitted that the respondents had indeed convened a DPC on 18.06.2021, but only for the year 2020. Further, it is submitted by the applicant in that O.A that vacancies of those who were working on deputation basis as per the pre-amended rules were not taken into consideration. The applicant in O.A 389/2021 submits that there are as many as 24 vacancies of Senior Audit Officers (13 for the vacancy year 2020 and 11 for the vacancy year 2021).
4. The applicants, submit that, under the above mentioned DoP&T O.Ms, the respondents were bound to convene the DPCs' for the vacancy years 2020 and 2021 well in time. They had all submitted individual representations addressed to the 1st respondent requesting the said authority to initiate appropriate action to promote them as Senior Accounts Officers or Senior Audit Officers as they have less than one year/less than two years, as the case may be, to superannuate. They also submit that consistent with the Recruitment Rules to be considered for promotion against the required vacancies of the vacancy year 2020/2021, they had been sent for two weeks mandatory training, which they have successfully completed. They have thus sought a direction to the respondents to forthwith convene the DPC for promotion to the post of Senior Accounts Officer/Senior Audit Officer for the vacancies of the year 2020/2021. They also seek relief to consider and promote them as per their seniority/eligibility with effect from 01.01.2020/01.01.2021, as the case may be, with all consequential benefits emanating therefrom, including fixation of pension, retirement benefits etc. -8-
5. The 3rd respondent in all the three O.As, the Union Public Service Commission (UPSC) has filed a short reply in all the O.As. It is clarified by them that as far as the reliefs sought by the applicants in the O.As 595/2021 and 596/2021 regarding convening the DPC for promotion to the post of Senior Accounts Officer in the office of the Principal Accountant General (A&E), Kerala, Thiruvananthapuram for the vacancy year 2020 is concerned, the DPC proposal was received by the Commission only on 16.12.2021. The DPC was then convened on 10.02.2022. Out of six applicants in O.A.No.180/596/2021 one applicant was not in the zone of consideration but the five others were available. Four of these five applicants were assessed and recommended as 'fit' for the promotion and the remaining one applicant was not required to be assessed for want of sufficient number of vacancies. The recommendations of the DPC have been sent to the 1st respondent, Comptroller and Auditor General of India vide letter dated 11.02.2022. With regard to the vacancy year 2021 a proposal is yet to be received by the Commission. Regarding Senior Audit Officers, it is submitted that DPC for post of Senior Audit Officer in the office of the Accountant General (Audit-I), Kerala, Thiruvananthapuram was held in the Commission on 18.06.2021 for the vacancies of the year 2020. Though the name of the applicant in O.A.No.180/389/2021 was in the zone of consideration, he was not required to be assessed for want of sufficient vacancies. However, no DPC proposal for the subsequent vacancy year 2021 has been received from the Comptroller and Auditor General of India for considering promotion to the post of Senior Audit Officer in the office of the Accountant General (Audit-I), Kerala. The UPSC submits in its reply that the timely submission of DPC proposals as per the DoP&T's model calender for DPC is primarily the responsibililty of the concerned -9- Ministry/Department. The Commission can convene the DPC only when the DPC proposal complete in all aspects is received from the Ministry/Department. It is submitted that the DPC proposals, as and when received from the office of the C&AG for promotion to the post of Senior Accounts Officer/Senior Audit Officer, are processed expeditiously in the Commission. The overall disposal time of all such DPC proposals is less than 50 days as against the prescribed time limit of 180 days as per the DoP&T model calender for the DPCs.
6. A reply statement has been filed on behalf of the respondents No.1-2 respectively in all the three O.As. It is submitted that as far as the promotion to the post of Senior Accounts Officer is concerned (in O.As 595/2021 and 596/2021) upto 2019 the panel for promotion to the cadre of Senior Accounts Officer was prepared by the DPC constituted by the 1 st respondent themselves. They were made ready in the office of the 2 nd respondent and promotions were then made on the first of January every year or as and when vacancies arose during the panel year. However, consequent to the change in the classification of the cadre of Senior Accounts Officer from Group 'B' to Group 'A' in the year 2019 for promotion to the post of Senior Accounts Officer from the panel year 2020 onwards, DPCs' with Chairman/Member of UPSC as the Chairperson of the DPC had to be convened. It is submitted that it is due to this incidental change in the DPC procedure that the promotion panel for the years 2020 and 2021 in respect of Senior Accounts Officer in the office of the 2 nd respondent could not be finalized. It is submitted that this is due to reasons beyond the control of the respondents. The respondents have had no intention whatsoever to delay the convening of DPC and it is submitted that earnest efforts are being made to finalize the promotion panel -10- for the year 2020, 2021 and 2022 at the earliest. It is also confirmed that the DPC for promotion to the post of Senior Accounts Officer has since met on 10.02.2022 to finalize the promotion panel for the year 2020. Further, it is submitted that the materials required for the DPC for promotion for the panel years 2021 and 2022 have also been prepared. The said materials have been sent by the 2 nd respondent to the 1st respondent on 31.01.2022. Similarly, as far as the matter of promotion to the post of Senior Audit Officer is concerned, the Respondent Nos.1 and 2 in O.A.No.180/389/2021 have also brought to attention that the switch over from the system of DPC being convened within the organization to consultation with the UPSC from the vacancy year 2020 onwards has taken place along with the issue of the new Recruitment Rules for the cadre of Senior Audit Officer which came into force on 20.11.2019. By these Rules, the cadre of Senior Audit Officer has been converted to a Group 'A' cadre. It is also confirmed that the DPC for the post of Senior Audit Officer (Group 'A') for the panel year 2020 had been convened by the UPSC on 18.06.2021. As per the documents furnished by the second respondent to first respondent's Office, it is submitted that 26 vacancies have been reported in the panel year 2020. It is submitted that vacancies have been arrived at considering clear vacancies arising in the post/grade/service due to death, retirement, resignation, regular long term promotion and deputation or by the creation of additional post on a long term. The required mandatory training for promotion to the post has also been conducted by the 2 nd respondent and the result published on 01.01.2020.
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7. Further to the above contentions, during the time of oral hearing learned counsel for the respondents Shri.Vineeth Komalachandran (appearing for Shri.K.I.Mayankutty Mather) has shown a copy of a letter from the Principal Accountant General (Audit-I) (2nd respondent in O.A.No.180/389/2021) that proposals for promotion to the post of Senior Audit Officer (regular) for the panel years 2021 and 2022 will also be forwarded to the Headquarters Office by 10.03.2022. It is indicated in the said letter that for consideration of regular promotion to the post of Senior Audit Officer for the panel year 2021, the applicant in O.A.No.180/389/2021 is listed at Sl.No.5. Further it appears that the official at Sl.No.4 had retired on 31.07.2021 and as per the computation of the vacancies, there are six vacancies for the panel year 2021. Hence, depending on the date of convening of the DPC by UPSC, the applicant is quite likely to be considered for empanelment by the DPC. In a similar manner pertaining to O.A.No.180/595/2021 and O.A.No.180/596/2021, Counsel has shown a letter from the office of the Accountant General (A&E), Kerala, Thiruvananthapuram stating that all the applicants in the O.A.No.180/595/2021 and one applicant in O.A.No.180/596/2021 have been included in the proposal for preparation of promotion panel for the year 2021, which is now under scrutiny at the C&AG Headquarters. All the other applicants in O.A.No.180/596/2021 had already been included in the proposal for preparation for the panel year 2020. It is also confirmed that the DPC had met on 10.02.2022 to finalize the promotion panel for the year 2020. However, the approval of Ministry of Finance, Government of India is also required before the panel can be operated. The material required for the DPC for promotion for the panel years 2021 and 2022 have also been prepared and the said materials have been sent to the Headquarters Office on 31.01.2022.
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8. The applicants in the three O.As had also sought for an interim direction to the respondents to consider and promote them as Senior Accounts Officer/Senior Audit Officer atleast on an adhoc basis against the existing vacancies provisionally, subject to the final outcome of the O.As. In this connection, the respondent no.1 and 2 have submitted that the willingness/unwillingness from all eligible Assistant Accounts Officer/Assistant Audit Officer had been sought regarding entrustment of the adhoc charge. This was done pursuant to a circular issued on 23.08.2021 by the 1 st respondent which has been produced in O.A.No.180/596/2021 at Annexure R-2 (a), relating to entrustment of charge of Senior Audit/Accounts/Administrative Officers to the eligible Assistant Audit/Accounts/Administrative Officers in the department on an adhoc basis. As far as the Audit side is concerned the willingness/unwillingness from the candidates are still awaited. On the Accounts side, pursuant to this circular, entrustment of charge of vacant posts of Senior Accounts Officer on an adhoc basis has already been made to five eligible candidates in the feeder cadre of the Assistant Accounts Officer. However, the applicants in O.A.No.180/596/2021, except for the 3rd applicant, have expressed their unwillingness for being considered for entrustment of charge of vacant posts of Senior Accounts Officer on an adhoc basis. In O.A.No.180/595/2021, two applicants have expressed their willingness for entrustment of additional charge of the vacant post of Senior Accounts Officer.
9. From the details as brought out above, it appears that the matter for conduct of the DPC is in process but has definitely been delayed for various reasons, the delay has occurred mostly between the 1 st and the 2nd respondent in all the three -13- O.As. The details brought out reveal that it is not so much the aspect of delay at the level of the UPSC but the change over to the system by which the DPC has to be convened by the Department in the UPSC that has purportedly caused delay. It is surprising to us that related dislocation caused by the onset of the global Covid- 19 pandemic in 2020 and 2021 has also not been blamed for the delay by any of the respondents. Whatever be the actual reason/situation, it appears to us that there has been enough progress and there is sufficient scope now for the 1 st respondent and the UPSC to get their act together to conduct the DPC for the preparation of panels of Senior Accounts Officer for 2021as well as for Senior Audit Officer for 2021, without much further ado. In addition, it is also required for the 1 st respondent, C&AG, to speedily ensure that the final orders relating to promotion of the applicants cleared by the DPCs' for 2020 already conducted and where proceedings have been sent back by UPSC to them are issued as early as possible after whatever formalities are required. For this purpose, the first respondent needs to follow up systematically with the concerned authorities so that all the applicants concerned are able to get their promotion before proceeding on superannuation.
10. Shri.T.C.Govindaswamy, learned counsel for the applicant has also brought to our notice a series of decisions by various Benches of this Tribunal as well as by Hon'ble High Court of Kerala and also the Hon'ble Apex Court in relation to the holding of DPC and issue of orders in time. These have been cited by this Tribunal earlier in a number of similar cases. They include the O.A.No.180/564/2017 heard by this Tribunal wherein, vide orders dated 31.08.2017, the respondents were directed to hold a meeting of the DPC urgently to consider eligible candidates for -14- promotion and in one case, even for notional promotion with effect from 01.04.2016. This was later confirmed by the Hon'ble High Court of Kerala, who dismissed the O.P.(CAT) No.14/2018 filed by the respondents in the O.A. In its order in O.P.(CAT) No.14/2018 issued on 23.01.2018, the Hon'ble High Court had found that the lapse if at all any in not convening the DPC for the years 2016-17 and 2017-18 was solely on the part of the Department and it cannot be shifted to the shoulders of the respondent (applicant in the O.A) under any circumstances. Similarly, in the case of M.M.Varghese & Anr. vs. Union of India & Ors. in O.A.No.180/239/2019, this Tribunal on 13.11.2020 had directed that the DPCs for the years 2016-17, 2017-18 and 2018-19 be conducted by the respondents taking into consideration all the eligible employees with the required seniority who were in service at that time. It was also allowed that the subsequent retirement of any of the employees would not stand in the way of consideration of their cases by the DPC so constituted. In O.A.No.911/2010 disposed off on 29.09.2011 it was found that the retirement of the employee without getting a promotion for which he was eligible to be considered makes a difference as the financial benefits that could have accrued on promotion were not just delayed but denied to the applicant for no fault of his. In that case it was directed that the applicant should be given notional promotion with effect from 01.04.2010, if he was found fit for promotion by the DPC so that he could not be deprived of increase in pension and other retiral benefits. This matter was later confirmed by the Hon'ble High Court in O.P. (CAT) No.2955/2012 on 03.10.2013, wherein it was recorded that the clear effect of the Tribunal's order was only to have a DPC meeting to ascertain the fitness of the respondent (applicant in the O.A) for promotion at the relevant time and if so, to grant him notional promotion without any benefits by way of arrears of pay or -15- other allowances. He would then be eligible only to non deprivation of increase in pension and other retiral benefits as will be available to him in the higher scale of pay. The direction was to carry out that drill and, if found eligible, to promote the respondent (applicant in the O.A) with effect from 01.04.2010 notionally and to release retiral benefits by appropriate revision in a time bound manner. Thus, the Hon'ble High Court did not interfere with the orders of the Tribunal. Similarly, the Principal Bench of this Tribunal in K.C.Chauhan vs. Surjeet S Priyadarshi vide orders issued on 07.03.2012 had disposed of the O.A.No.280/2008 & connected cases with a direction to the respondents to consider the grant of regular promotions to the remaining 9 applicants, also from the date of their respective adhoc promotions or from the date of occurrence of the regular vacancy by constituting a review DPC, if required. On grant of promotions, the entitlement would be to the reliefs as granted earlier by the respondents vide Office Order dated 01.09.2011.
11. It is submitted by counsel for the applicants that the Tribunals as well as the Hon'ble High Courts have been taking a consistent stand about the delays in holding of DPCs'. The respondent agencies of the Government of India have been even asked to hold review DPC much after the retirement of the said employees in case there was such delay and to give notional promotions or in some cases, arrears from the date of promotion if they were otherwise eligible and covered under the rules for promotion at the time when the vacancy arose. Perhaps counsel brings this to notice in anticipation of the fact that there could be further delays in issuing promotion orders in the instant three cases under consideration. However, we find that it is possible under the circumstances for the respondents, if they make -16- sincere efforts, to finalize the issuance of promotion orders for the Senior Accounts/Audit Officers for the vacancy year 2020 immediately. The DPCs' have been held and we urge the respondents to take necessary steps to issue the orders of promotion at least within the next two weeks from the date of issue of this order. As far as promotion to the post of Senior Audit Officer/Senior Accounts Officer for the year 2021 is concerned, which appears to be the matter of interest for the applicants in O.A.No.180/389/2021 and O.A.No.180/595/2021, now that all details are with the C&AG, it is directed that the same should be send to the UPSC with a proposal complete in all respects within next two weeks from the date of issue of this order. The UPSC should thereafter convene a meeting of the DPC concerned within one month of the date of receipt of the proposal from the C&AG. The concerned respondents, after getting the result of the DPC from the UPSC, should issue the promotion order for the vacancy year 2021 for posts of Senior Audit Officer/Senior Accounts Officer within a month from the date of receipt of the same back from the UPSC.
12. In this connection, learned counsel for the respondents has brought to notice that, recently, the Hon'ble Supreme Court in C.A.No.517-518/2017 - Union of India & Anr. vs. Manpreet Singh Poonam etc. has passed orders relating to the treatment of vacancies especially regarding the issue of retrospective promotion and delays in consideration of promotion. The Hon'ble Apex Court had heard the challenge dealing with the issue of delays in consideration of promotion creating a vested right over a post etc. The Hon'ble Apex Court observed at paragraph 17 in the matter that"A mere existence of vacancy, per se, will not create a right in -17- favour of an employee for retrospective promotion when the vacancies in the promotional post is specifically prescribed under the rules, which also mandate the clearance through a selection process......In other words, a right to promotion and subsequent benefits and seniority would arise only with respect to the rules governing the said promotion, and not a different set of rules which might apply to a promoted post facilitating further promotion which is governed by a different set of rules....." The Hon'ble Apex Court in its order also drew attention to the case of Union of India vs. K.K.Vadhera & Ors., 1989 Supp. (2) SCC 625 which laid down that the promotion to a post should only be granted from the date of promotion and not from the date on which vacancy has arisen. Similarly, in the case of Ganga Vishan Gujrati & Ors. vs. State of Rajasthan, (2019) 16 SCC 28 it was laid down that the seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant Service Rules. Hence, learned counsel for the respondents in these three O.As submits that while the demand of the applicants for promotion is quite understandable, their prayer for relief to give them promotion from the date of their eligibility ie., 01.01.2020 or 01.01.2021 with all consequential benefits etc., as the case may be, should not be allowed as per these directions of the Hon'ble Supreme Court. We have not gone into this issue or are making any directions in this regard. We have confined our directions in paragraph 11 to the convening of the DPC within the dates prescribed and on the prompt issue of orders by the C&AG for the two vacancy years 2020 and 2021. The relief sought at paragraph 8 (ii) in all the three O.As thus is not being considered at this stage.
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13. With these directions, the O.As are disposed of. No order as to costs.
(Dated this the 11th day of May 2022)
K.V.EAPEN P.MADHAVAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp
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List of Annexures in O.A.No.180/00389/2021
1. Annexure A-1 - True copy of Indian Audit and Accounts Department, Senior Accounts Officer and Senior Audit Officer, Group 'A' posts Recruitment Rules, 2019 published in the Government of India Gazette, Notification dated 18.11.2019.
2. Annexure A-2 - True copy of O.M. No. 22011/9/98-Estt (D) dated 08.09.1998 issued by the Government of India, Department of Personnel & Training.
3. Annexure A-3 - True copy of OM bearing No. 22011/9/98-Estt (D) dated 16.06.2000 issued by the DOP&T.
4. Annexure A-4 - True copy of O.M. No. 22011/4/2013-Estt (D) dated 28.01.2015 issued by the DOP&T.
5. Annexure A-5 - True copy of Office Memorandum No.22011/04/2013-Estt (D) dated 08.05.2017 issued by the DOP&T.
6. Annexure A-6 - True copy of letter bearing No. AIA/Circular-4/2021 dated 27.03.2021 addressed to 1st respondent.
7. Annexure A-7 - True copy of letter bearing No. AIA/B-1/12/2021 dated 08.06.2021 addressed to the 1st respondent.
8. Annexure A-8 - True copy of letter dated 30.04.2021 addressed to the Secretary General of All India Audit and Accounts Officers' Association.
9. Annexure A-9 - True copies of representation dated 20.07.2021 addressed to st the 1 respondent.
10. Annexure A-10 - True copy of the Office Memorandum bearing No.22011/1/2021-Estt.(D) dated 27.08.2021.
11. Annexure R-2(a) - A true copy of Circular No. 49 of the Circular No.49- Staff (App I)/2019 issued by the office of the 1st respondent.
12. Annexure R-2(b) - A true copy of Sectional Order No. 217 of the 2 nd respondent.
13. Annexure R-2(c) - A true copy of the Sectional Order No. 242 of the 2 nd respondent.
14. Annexure R-2(d) - A true copy of Circular No. 2 (No. 50/Staff (App-VI)/05- 2021 issued by the office of the 1st respondent.
-20-List of Annexures in O.A.No.180/00595/2021
1. Annexure A-1 - True copy of Indian Audit and Accounts Department, Senior Accounts Officer and Senior Audit Officer, Group 'A' posts Recruitment Rules, 2019 published in the Government of India Gazette, Notification dated 18.11.2019.
2. Annexure A-2 - True copy of O.M. No. 22011/9/98-Estt (D) dated 08.09.1998 issued by the Government of India, Department of Personnel & Training.
3. Annexure A-3 - True copy of OM bearing No. 22011/9/98-Estt (D) dated 16.06.2000 issued by the DOP&T.
4. Annexure A-4 - True copy of O.M. No. 22011/4/2013-Estt (D) dated 28.01.2015 issued by the DOP&T.
5. Annexure A-5 - True copy of Office Memorandum No. 22011/04/2013-Estt (D) dated 08.05.2017 issued by the DOP&T.
6. Annexure A-6 - True copy of letter bearing No. AIA/Circular-4/2021 dated 27.03.2021 addressed to the Unit Secretary, Committee Members and 1 st respondent.
7. Annexure A-7 - True copy of letter bearing No. AIA/B-1/12/2021 dated 08.06.2021 addressed to the 1st respondent.
8. Annexure A-8 - True copy of letter dated 30.04.2021 addressed to the Secretary General of All India Audit and Accounts Officers' Association.
9. Annexure A-9 series - True copies of 5 representations dated 30.09.2021, addressed to the 1st respondent.
10. Annexure A-10 - A true copy of Sectional Order bearing No. 242 dated 01.01.2020 issued from the office of the 1st respondent.
11. Annexure A-11 - Department of Personnel & Training vide its O.M.No.22011/1/2021/Estt. (D) dated 27.08.2021.
12. Annexure A-12 - A true copy of query addressed to the PIO in the office of the first respondent under the RTI Act and its reply.
13. Annexure R-2(a) - A true copy of Circular No. 2 (No. 50/Staff (App-VI)/05- 2021 dated 23.08.2021.
List of Annexures in O.A.No.180/00596/2021
1. Annexure A-1 - True copy of Indian Audit and Accounts Department, Senior Accounts Officer and Senior Audit Officer, Group 'A' posts Recruitment Rules, 2019 published in the Government of India Gazette, Notification dated 18.11.2019.
-21-
2. Annexure A-2 - True copy of O.M. No. 22011/9/98-Estt (D) dated 08.09.1998 issued by the Government of India, Department of Personnel & Training.
3. Annexure A-3 - True copy of OM bearing No. 22011/9/98-Estt (D) dated 16.06.2000 issued by the DOP&T.
4. Annexure A-4 - True copy of O.M. No. 22011/4/2013-Estt (D) dated 28.01.2015 issued by the DOP&T.
5. Annexure A-5 - True copy of Office Memorandum No. 22011/04/2013-Estt (D) dated 08.05.2017 issued by the DOP&T.
6. Annexure A-6 - True copy of letter bearing No. AIA/Circular-4/2021 dated 27.03.2021 addressed to the Unit Secretary, Committee Members and 1 st respondent.
7. Annexure A-7 - True copy of letter bearing No. AIA/B-1/12/2021 dated 08.06.2021 addressed to the 1st respondent.
8. Annexure A-8 - True copy of letter dated 30.04.2021 addressed to the Secretary General of All India Audit and Accounts Officers' Association.
9. Annexure A-9 series - True copies of 5 representations dated 29.09.2021, 30.09.2021 and representation dated 01.10.2021 of 4 th applicant addressed to the 1st respondent.
10. Annexure A-10 - A true copy of Sectional Order bearing No. 242 dated 01.01.2020 issued from the office of the 1st respondent.
11. Annexure A-11 - Department of Personnel & Training vide its O.M.No. 22011/1/2021/Estt. (D) dated 27.08.2021.
12. Annexure A-12 - A true copy of query addressed to the PIO in the office of the first respondent under the RTI Act and its reply.
13. Annexure A-13 - A true copy of the reply dated 08.12.2021 received by Shri Shankar Kumar from the Office of 2nd respondent, under RTI Act.
14. Annexure R-2(a) - A true copy of Circular No. 2 (No. 50/Staff (App-VI)/05- 2021 dated 23.08.2021.
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