Central Administrative Tribunal - Delhi
K.C.Chauhan vs Union Of India on 7 March, 2012
Central Administrative Tribunal
Principal Bench
M.A.No.1656/2011
O.A.No.280/2008
with
M.A.No.1650/2011
O.A.No.2661/2010
New Delhi, this the 7th day of March, 2012
Honble Shri Justice V.K.Bali, Chairman
Honble Shri Shailendra Pandey, Member (A)
M.A.No.1656/2011
O.A.No.280/2008:
Y.S.Chaudhary
s/o Sh. Ram Rup Chaudhary
r/o C-104, Rail Vihar
Sector-3, Vasundhra
Ghaziabad (U.P.)
Working as Deputy Chief Engineer (Construction)
Tilak Bridge
New Delhi.
K.K.Jain
S/o Sh. V.K.Jain
r/o E/69, Near Anwar Ganj Rly. Station
Kanpur, U.P.
Working as Dy. Chief Engineer/Planning & Design
North-East Railway
Gorakhpur, U.P.
R.Amalraj
s/o A.Rajan
r/o ROS-118 K
Southern Railway Officers Colony
Roaster Enclave, 363
Anna Salai, Chennai
Working as Sr. Divl. Engineer/Works/MAS
Southern Railway,
Chennai.
D. Govindsamy
s/o P.Dasamoorthy
r/o 129 A, Pycrafts Garden
Rly. Officers Quarters
Nungambakkam High Road
Chennai 600 034.
Working as Sr. Divl. Engineer (Safety Officer)
Chennai.
K.C.Chauhan
s/o Sh. N.L.Chauhan
r/o 1640 Railway Bungalow, Old Railway Colony
Road No.7, Ratlam, Madhya Pradesh
Working as Deputy Chief Engineer (Construction)
Western Raiwlay
Ratlam. Applicants
(By Advocates: Shri Mahavir Singh, Senior Counsel with Shri Rakesh
Dahiya and Shri Yogesh Sharma)
Versus
Union of India
Through its Secretary
Railway Board
Rail Bhawan
New Delhi.
Federation of India Railway Officers Association
Room No.256-A, Railway Board
New Delhi
Through its General Secretary.
Ashok Kumar
Dy. CE/G/Spl./Garden Reach, SE Rly.,
Kolkata
Through Secy. Railway Board
Sunil Bhaskar
Dy. Chief Engineer/TM/HQ, Baroda House
N. Rly.,
New Delhi
Through Secretary,
Railway Board.
G.S.Yadav
Sr. DEN/S/C. Rly., Nagpur
Through Secy. Railway Board
Vinod Kumar Tripathi
Dy. CE/C-II/, N.C.Rly.,
Allahabad
Through Secy. Railway Board
Rajesh K. Gupta
Dy. CE/TMC/HQ
Baroda House
N. Rly.,
New Delhi
Through Secy.
Railway Board
Sanjay K. Bhagat
PL/RTMC, N.C.Rly., Allahabad
Through Secy. Railway Board.
M.R.C.Choudhary
RDSO, Lucknow,
through Secy. Railway Board
Dinesh K. Pandey
Dy. CE/C, N.Rly., K. Gate, Delhi
Through Secy. Railway Board
Mukesh Kumar
Dy. CE/Con. E.C.Rly
SPJ, Through Secy. Railway Board
Sanjib Kumar
Dy. CE/II/E. Rly., HWH,
Through Secy. Railway Board
Raju P. Bhadke
CWM, C.Rly., MMR.,
Through Secy. Railway Board
Ajay Kumar
Sr. DEN/III, N.E.Rly., LJN
Through Secy. Railway Board
Atul Kumar
Sr. DEN/III, E.C.Rly
DNR
Through Secy. Railway Board
Bhawesh K. Jha
Dy. CE/BR-II,
C.Rly. HQ
Through Secy. Railway Board
Anand Singh
Sr. DEN/III, N.E.Rly. BSB
Through Secy. Railway Board
Vijender Singh
Dy. CE/Br.L, N.Rly TKJ
Through Secy. Railway Board
Rajesh K. Singh
Dy. CE/C/III, E.Rly.
SDAH
Through Secy. Railway Board
Santanu Saha
Dy. CE/C/III, E. Rly.
SDAH
Through Secy. Railway Board
Pankaj Tyagi
Sr. DEN/II, N.Rly
FZR
Through Secy. Railway Board
R.R.Raju
Dy. CE/C-II
N.Rly, PTK
Through Secy. Railway Board
Natraj Singh
Sr. DEN/I, N.Rly.
UMB,
Through Secy. Railway Board
Ajeet K. Mishra
Dy. CE/C, E.C.Rly., SHC-SOJ
Through Secy. Railway Board
Sanjay K. Singh
Dy. CE/C, N.C.Rly
GWL,
Through Secy. Railway Board
Jitendra Kumar
Dy. CE/Con/P
N.Rly. HQ,
Through Secy. Railway Board
Radhey Mohan Singh
Sr. DEN/III, N.Rly
LKO,
Through Secy. Railway Board
Anand Bharti
Dy. CE /CN/N
S W Rly
BNC
Through Secy. Railway Board
Alok Kumar
Dy. CE/TG, S.E. C. Rly,
HQ
Through Secy. Railway Board
Yogesh Verma
Sr. DSO/I, N.F.Rly,
RNY
Through Secy. Railway Board
Avneesh Verma
Dy. CE/I, W.Rly.,
CCG,
Through Secy. Railway Board
Sujeet S. Priyadarshi
Secy. CAO/C
E.Rly
Through Secy. Railway Board Respondents.
(By Advocate: Sh. R.V.Sinha with Sh. R.N.Singh, Sh. Shailendra Tiwary and Sh. V.S.R.Krishna, for the official respondents and Sh. Vivek Singh, for private respondents)
WITH
M.A.No.1650/2011
O.A.No.2661/2010:
Indian Railways Civil Engineering Officers Association
Office Dy. CE/Constn. Office
Tilak Bridge
New Delhi 110 001.
Through its General Secretary, Sh. Y.S.Chaudhary
A. Jagannathan
s/o A. Murugappa Mudalier
working as Dy. Chief Engineer, S.Rly. Electrification
Chennai, Egmore.
P.K.Ravindran
s/o Sh. Kannan
Dy. Chief Engr. (Track Machines)
S.Rly, Hqrs.
Chennai.
Tula Ram s/o Sh. Budh Singh
Dy. Chief Engineer
N.R.Railway
Muradabad.
Balbir Singh
s/o Sh. Ganeshsa
working as Dy. Chief Engineer/Construction
K.Gate
Delhi.
G.B.Singh
s/o Sh. Shankar Lal
working as Dy. Chief Engineer/Track Machine/Line
Northern Railway
State Entry Road
New Delhi.
Hiteshwar Barua
s/o Sh. Lt. Bimabadhar Baruah
working as Sr. DEN/G
N.F.Railway, Tinsukia
S. Killivalavan
s/o Sh. N.Selvarsan
Dy. Chief Engr./MTP
S.Raiwlay
Chennai.
R.Ramkrishnan
s/o Sh. Rengaswamy
working as Deputy Chief Engineer/Const.
Southern Railway
Padanur. Applicants
(By Advocates: Shri Mahavir Singh, Senior Counsel with Shri Rakesh
Dahiya and Shri Yogesh Sharma)
Versus
Union of India
Through its Secretary
Railway Board
Rail Bhawan
New Delhi.
The Secretary
Railway Board
Rail Bhawan
New Delhi.
Union Public Service Commission
Through its Chairman
Dhaulpur House
Shahjahan Road
New Delhi.
Federation of India Railway Officers Association
Room No.256-A, Railway Board
New Delhi
Through its General Secretary.
Ashok Kumar
Dy. CE/G/Spl./Garden Reach, SE Rly.,
Kolkata
Through Secy. Railway Board
Sunil Bhaskar
Dy. Chief Engineer/TM/HQ, Baroda House
N. Rly.,
New Delhi
Through Secretary,
Railway Board.
G.S.Yadav
Sr. DEN/S/C. Rly., Nagpur
Through Secy. Railway Board
Vinod Kumar Tripathi
Dy. CE/C-II/, N.C.Rly.,
Allahabad
Through Secy. Railway Board
Rajesh K. Gupta
Dy. CE/TMC/HQ
Baroda House
N. Rly.,
New Delhi
Through Secy.
Railway Board
Sanjay K. Bhagat
PL/RTMC, N.C.Rly., Allahabad
Through Secy. Railway Board.
M.R.C.Choudhary
RDSO, Lucknow,
through Secy. Railway Board
Dinesh K. Pandey
Dy. CE/C, N.Rly., K. Gate, Delhi
Through Secy. Railway Board
Mukesh Kumar
Dy. CE/Con. E.C.Rly
SPJ, Through Secy. Railway Board
Sanjib Kumar
Dy. CE/II/E. Rly., HWH,
Through Secy. Railway Board
Raju P. Bhadke
CWM, C.Rly., MMR.,
Through Secy. Railway Board
Ajay Kumar
Sr. DEN/III, N.E.Rly., LJN
Through Secy. Railway Board
Atul Kumar
Sr. DEN/III, E.C.Rly
DNR
Through Secy. Railway Board
Bhawesh K. Jha
Dy. CE/BR-II,
C.Rly. HQ
Through Secy. Railway Board
Anand Singh
Sr. DEN/III, N.E.Rly. BSB
Through Secy. Railway Board
Vijender Singh
Dy. CE/Br.L, N.Rly TKJ
Through Secy. Railway Board
Rajesh K. Singh
Dy. CE/C/III, E.Rly.
SDAH
Through Secy. Railway Board
Santanu Saha
Dy. CE/C/III, E. Rly.
SDAH
Through Secy. Railway Board
Pankaj Tyagi
Sr. DEN/II, N.Rly
FZR
Through Secy. Railway Board
R.R.Raju
Dy. CE/C-II
N.Rly, PTK
Through Secy. Railway Board
Natraj Singh
Sr. DEN/I, N.Rly.
UMB,
Through Secy. Railway Board
Ajeet K. Mishra
Dy. CE/C, E.C.Rly., SHC-SOJ
Through Secy. Railway Board
Sanjay K. Singh
Dy. CE/C, N.C.Rly
GWL,
Through Secy. Railway Board
Jitendra Kumar
Dy. CE/Con/P
N.Rly. HQ,
Through Secy. Railway Board
Radhey Mohan Singh
Sr. DEN/III, N.Rly
LKO,
Through Secy. Railway Board
Anand Bharti
Dy. CE /CN/N
S W Rly
BNC
Through Secy. Railway Board
Alok Kumar
Dy. CE/TG, S.E. C. Rly,
HQ
Through Secy. Railway Board
Yogesh Verma
Sr. DSO/I, N.F.Rly,
RNY
Through Secy. Railway Board
Avneesh Verma
Dy. CE/I, W.Rly.,
CCG,
Through Secy. Railway Board
Sujeet S. Priyadarshi
Secy. CAO/C
E.Rly
Through Secy. Railway Board Respondents.
(By Advocate: Sh. R.V.Sinha with Sh. R.N.Singh, Sh. Shailendra Tiwary and Sh. V.S.R.Krishna, for the official respondents and Shri Vivek Singh for the private respondents)
(Order reserved on 05.03.2012)
O R D E R
By Shailendra Pandey, Member (A):
By this common order, we propose to dispose of the OA 280/2008 and OA 2661/2010, as they involve identical issues of facts and law.
The issue involved in the above OAs is whether the delay in convening meeting of the DPCs by the respondents (Railway Board) in the case of the applicants was due to reasons beyond control or because of administrative delay/inefficiency and what would be the consequence if the delay on the part of the respondents is not found to be explained/justified.
For the sake of convenience, it would be necessary to briefly record the facts of the case in Writ Petition (C) No.2020/2011 [arising out of OA No.280/2008 filed by Shri Y.S.Chaudhary and Others].
In this OA the applicant and four others were Group `B officers and had been substantively appointed in Group `A/Junior Scale of the IRSE with effect from 14.1.2005 vide Ministry of Railways Notification dated 23.03.2005 and their revised inter se seniority in IRSE on their promotion to Group A from Group B was circulated vide Ministry of Railways notification dated 18.5.2006. They were aggrieved by the delayed induction from Group B to Group A. Being dissatisfied, they approached the tribunal in OA No. 280/2008 for setting aside the notification dated 18.5.2006 issued by the respondent inducting the applicants in Group A Junior Scale of IRSE with effect from 14.1.2005, instead of from 2002-03 when the vacancies arose and further to direct the respondents to give them the promotion/induction in Group A Junior Scale IRSE from the date when the vacancies arose in 2002-03 instead from 14.1.2005 when the DPC was conducted.
It is the case of the applicants that their promotions should be made effective from 1.4.2002 as the DPCs for induction to Group A for the vacancies of 2002-2003 ought to have been conducted before December, 2001 to be effective from 1.4.2002 (for the vacancies of the year 2001, for panel of 2002-2003) but the respondents failed to take any action in this regard. It is contended that when clear vacancies in Junior Scale Group A of IRSE were available and eligible Group B officers with the requisite non fortuitous service were also available, there was no justification for the delayed induction and the action of the respondent for delayed promotion to Group A Junior Scale of IRSE from Group B with effect from 14.1.2005 (instead of 1.4.2005) against the vacancies of 2002-2003 is highly illegal and prejudicial to their interest. It was averred that the applicants had been inducted against the vacancies pertaining to the examination year 2001 (vacancies of 2002-2003) in the promotion segment of Group A Junior Scale of IRSE for the year 2002-03 and according to the guidelines of the Department of Personnel & Training (DOPT), the panel for the vacancy for the year 2002-03 should have been available on 1.4.2002 whereas it was made effective from 14.01.2005, the date of the DPC, as a consequence of which the applicants have been placed under the direct recruit IRSE officers of 1998 Officers Examination Batch, causing loss of more than three years in their seniority and future promotional prospects for no fault of theirs. It was contended that the DOPT instructions prescribed taking of advance action for filling up vacancies of a year and for convening of DPCs of Group B officers for promotion to Group A well in time so as to be effective from the next calendar year, but the respondents had failed to follow these instructions.
We had, vide our order dated 29.01.2010 in OA 280/2008, after going through the rival contentions raised at the Bar and discussing the authorities which were cited relating to grant of benefit of retrospective promotion relating to DPC and the requirements of following the instructions of DOPT, partly allowed the Original Application by quashing the notification dated 18.05.2006 and had directed as follows:
35. The impugned notification dated 18.05.2006 is quashed and set aside. The respondents are directed to convene a review DPC to consider the promotion/induction of the applicants from the date when the vacancies arose in 2002-2003, and thereafter to pass appropriate follow up orders with regard to their seniority in Group `A, subject to it being ensured that the seniority accorded does not result in the applicants superseding officers who were senior to them in Group `B and have already been promoted to Group `A. This may be done within a period of three months from the date of receipt of a copy of this order. Based on our order, a Coordinate Bench of this Tribunal had passed a similar order dated 23.12.2010 in OA No.2661/2010.
The matter was carried to the High Court of Delhi in WP (C) No.2020/2011 and WP (C) No.1353/2011, which, vide its order dated 30.05.2011, remanded the case back to this Tribunal with directions to afford the applicants to implead the necessary parties (direct recruits) and proceed afresh. The relevant portions of the order of the High Court of Delhi are extracted below:
14. In the case at hand, as is noticeable, the tribunal has repelled the plea of non-joinder of parties on the ground that the direct recruits were not necessary parties to the original application as the grievance of the applicant was against the respondents. The only illegalities and irregularities was the delay that occurred in holding the DPCs in time. For the aforesaid purpose, the tribunal has based its foundation on the decision rendered in A.P. Wasan and others (supra). On a perusal of the authorities in the field, it is quite vivid that unless the very principle of determination of seniority or promotion is called in question, the necessary parties are to be impleaded. If the policy is basically illegal or a rule is constitutionally invalid, then there may not be a necessity to implead an affected person but in the case at hand, the whole thing hinges on the fact whether the DPCs were belatedly conducted and whether the promotion relates back to the date of arising of the vacancy. This would certainly affect third persons who were appointed / promoted.
15. True it is, the tribunal has directed that their promotion shall relate back to the date of vacancy but they would not have seniority over others who were promoted earlier. But, this situation is inconceivable. This is likely to create anomaly. In our considered opinion, the finding recorded by the tribunal on this score is absolutely pregnable and vulnerable and, accordingly, we set aside the same. Once we set aside this finding, other findings are to be set aside as the matter has to be remitted to the tribunal for a fresh adjudication after granting opportunity to the applicants therein to implead the affected persons as parties and thereafter proceed to deal with the matter in accordance with law.
16. In view of the aforesaid, the findings recorded in the case of Y.S. Chaudhary forming the subject matter of OA No. 280/2008 and OA No. 2140/2009 with OA No.2661/2010 are set aside and the matter is remanded to the tribunal to afford the applicants therein to implead the necessary parties and to proceed afresh. Thus, the present OAs are before us.
Thereafter, the applicants have filed an MA 1656/2011 in OA No.280/2008 for impleading 31 additional respondents on behalf of the direct recruits (including the Federation of Indian Railway Officers Association, New Delhi and some senior most direct recruits from each panel of each of the years 1995 to 1998) and have stated that with this the interests of all the direct recruits would be represented.
In response, the private respondents No.R10, R-17 and R-19 have filed their counter replies and official respondents have also filed their fresh written submissions. The case was heard for fresh adjudication and the submissions of all the counsel are discussed in the succeeding paragraphs.
M.A.No.1656/2011:
In the MA, the applicants have stated that there is a Federation of Direct Recruits and, therefore, it would be appropriate to implead the said Federation on behalf of all the Direct Recruits and, in addition, also implead 10 senior most persons from each panel of each of the years in question, and that this MA for impleading persons likely to be affected would meet the directions of the High Court of Delhi. Therefore, they pray that the MA for impleadment of the private respondents, through the Secretary, Railway Board, New Delhi, be allowed and the amended memo of parties be taken on record.
Notices were issued in the matter. It has been brought to our notice that the service of the notice on the MA had been effected on the direct recruits on 22.07.2011, through the Secretary, Railway Board.
In response, the private respondents No.10, 17 and 19 have filed their replies to the MA and have stated that the High Court specifically remitted the matter back to this Tribunal for fresh adjudication after granting opportunity to implead the necessary parties. The applicants have filed the MA impleading only 30 persons out of the total strength of the batch of 1995 to 1998. It is further submitted that the private respondents are situated all across India and there is no active association with whom all the affected officers are associated and through whom they can be represented. Therefore, the applicants ought to have impleaded all those persons who would be affected and not only a few of them; therefore, the present OA is liable to be dismissed on this ground alone. They have also raised the plea of limitation and stated that the OA is barred by limitation as the Railway Board circulated the seniority list on 18.05.2006 giving seniority to the applicants w.e.f. 14.01.2005 but the applicants first represented on 12.06.2006 and thereafter made representations on 01.12.2006, 31.05.2007, 17.10.2007 and 02.01.2008 and the OA has been filed on 21.01.2008.
The official respondents have also opposed the MA and have stated that the MA is hit by the law of non-joinder of necessary parties as the applicants have deliberately impleaded only a few persons from each batch from 1995 to 1998 and have not impleaded every person who would be affected if the petition of the applicants is allowed. It is stated that if the applicants are given promotion to Group `A w.e.f 01.04.2002 as demanded in the present OA, their seniority in Group `A would be fixed w.e.f. 01.04.1997 after grant of weightage of 5 years. This would lead to their placement below the junior most direct recruit IRSE officer of 1994 (earliest date of joining in the batch was 02.01.96). Thus, all the officers of 1995 to 1998 would be seriously affected if the claim of the applicants is allowed. Therefore, the applicants ought to have impleaded every person of direct recruit IRSE officer of 1995 to 1998 batch.
The learned counsel for the applicants has brought to our notice the case of the Honble Apex Court in Diwakar Shrivastava & Ors. V. State of Madhya Pradesh, 1984 (sup.) SCC 214 and states that in the present case also a general question is involved and a large number of persons are concerned, the MA may be allowed as the applicants have already impleaded some of the affected parties of direct recruits (including the Federation of the Direct Recruits) as private respondents and thus their interests are fully represented. The applicants counsel has also referred Order I, Rule 8 of the Civil Procedure Code, 1908, which provides as under:
8. One person may sue or defend on behalf of all in same interest.- (1) Where there are numerous persons having the same interest in one suit,-
one or more of such persons may, with the permission of the Court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested;
the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested. Having considered the above submission with reference to the MA, we are of the considered view that now since in pursuance of the directions of the High Court of Delhi, notices have been issued to 30 persons which include persons from all the four batches and the Federation of Indian Railway Officers Association and, some of these (private respondents No.10, 17, and 19) have also filed their counter replies and as there is a common issue involved, the interest of the direct recruits would be adequately covered/protected by the impleadment as above. The MA is, therefore, allowed and we now proceed to adjudicate the OA on the basis of the pleadings before us.
O.A.No.280/2008:
1. The applicants in this OA were Group `B officers and were substantively appointed to Group `A/Junior Scale of the IRSE w.e.f. 14.01.2005 vide Ministry of Railways notification dated 23.03.2005 and their revised inter-se-seniority in IRSE on their promotion to Group `A from Group `B was circulated vide Ministry of Railways notification dated 18.05.2006 (the impugned order). They have challenged their delayed induction from Group `B to Group `A, alleging that this has adversely affected them through loss of seniority, chances of promotions and resultant monetary loss through out their service life and even after retirement, and have prayed for the following reliefs:
To set aside the Notification dated 18.5.2006 (wrongly typed in the OA as 18.06.2006) issued by the Respondent inducting the applicant in Group `A Junior Scale of IRSE w.e.f. 14.1.2005 instead from 2002-03 when the vacancies arose, as the same is illegal and arbitrary, and is in violation of principles laid down under the natural justice.
To direct the respondent to provide the promotion/induction in Group `A Junior Scale IRSE Services to the applicant from the date when the vacancies arose in 2002-03, instead from 14.1.2005 when the DPC was conducted within.
2. It is submitted that the applicants had made several representations dated 10.06.2006, 1.12.2006, 31.05.2007 and 17.10.2005 to the respondents requesting that their promotions be made effective from 01.04.2002 as the Departmental Promotion Committee (DPC) for induction to Group `A for the vacancies of 2002-2003 ought to have been conducted before December, 2001, to be effective from 1.4.2002 (for the vacancies of the year 2001 (panel for 2002-2003)), but the respondents have failed to take any action in this regard, constraining them to file this OA.
3. According to the applicants, when clear vacancies in Junior Scale Group `A of IRSE were available, and eligible Group `B Officers with the requisite non fortuitous service were also available (the applicants had completed more than 3 years of stipulated service in Group `B from 1992 itself and were waiting for their induction in to Group `A as per Rule 209 (B) of the Indian Railway Establishment Code, Volume-I) there was no justification for the delayed induction and the action of the respondent of delayed induction/promotion of the applicants to Group `A Junior Scale of IRSE from Group `B w.e.f. 14.1.2005 (instead of 01.04.2002) against the vacancies of 2002-03 is highly illegal, arbitrary and against the principles of natural justice and has caused material prejudice to them.
4. It is the case of the applicants that they have been inducted against the vacancies pertaining to examination year 2001 (vacancy year 2002-2003) in the promotion segment of Group `A/Junior Scale of IRSE for the year 2002-03 and that according to the guidelines of the Department of Personnel & Training (DoPT), the panel for the vacancy year 2002-03 should have been available on 1.4.2002 whereas it has been made effective from 14.01.2005 (the date of the DPC). As a result, the names of the applicants have been placed under the direct recruit IRSE officers of 1998 Officers Examination Batch, causing loss of more than 3 years in their seniority and future promotional prospects for no fault of theirs.
5. The learned counsel for the applicants has pointed out that there are clear instructions of the DoPT to take advance action for filling up vacancies of a year and arrange DPCs of Group `B Officers for promotion to Group `A Officers well in time so as to be effective from the next calendar year, but the respondents have failed to follow these instructions. There was even a directive from the Prime Minister of India in this regard, yet the DPC in the case of the applicants was delayed for no fault of theirs and for no justifiable reasons. Such unjustified delay cannot be permitted.
6. According to the learned counsel, under calculation of vacancies and excessive delays in holding DPCs has resulted in large scale adhocism in the cadre management of the Group `B Civil Engineering Department in the Railways, where as many as 491 officers are working on ad hoc basis in the senior scale and after spending more than 9 years of regular service in Group `B as on 01.11.2007. It is also submitted that there is a very large short fall in the fulfillment of the quota of Group `B in Group `A in the Civil Engineering Department, wherein only 189 Group `B Officers are working in Group `A against their stipulated quota of 1015.
7. It is, therefore, prayed that the impugned notification dated 18.05.2006 be quashed as it hampers the seniority prospects of the applicants on a permanent and continued basis without any valid reasons, and that the respondents be asked to induct/promote the applicants to Group `A/Junior Scale of IRSE from the date when the vacancies arose.
8. In support of the relief claimed, the following judgments have been relied on by the learned counsel for the applicants:
P.N.Premachandran vs. The State of Kerala and Ors., (Civil Appeal No.4100/1998, decided by the Apex Court on 6.11.2003).
OA No.177/2006 (Raj Kumar v. Secretary, Ministry of Transport, Department of Railways), decided on 7.2.1990 by the Bombay Bench of this Tribunal.
OA No.603/2008 (M.A.Khan & Others v. UOI & Others), CAT, Principal Bench, decided on 9.01.2009, which was upheld by the Honble High Court of Delhi in WP (C) No.11506/2009 vide its order dated 8.09.2009.
OA No.2364/2008 (M.A.Khan v. Union of India & Anr.) decided on 3.11.2009 by this Tribunal.
The order dated 01.03.2012 of a Coordinate Bench of this Tribunal in OA 1563/2011 [Sh. P.K.Udgata & Others v. Union of India & Others].
9. The respondents have opposed the OA and have submitted that framing of a DPC proposal for promotion to Group `A of any of the Railway Services requires several basic inputs such as seniority list of Group `B Officers, their ACRs of the preceding 5 years, vigilance/D&AR reports, etc., which have to be obtained from the 16 Zonal Railways and 6 production units, each having offices of 8 major departments besides offices of 9 miscellaneous departments, and that this is, therefore, a time consuming process and that some delay in holding of the DPC Meetings becomes unavoidable for these bona fide reasons. They have also stated that promotion of Group `B officers of Railways to Group `A are regulated in terms of guidelines contained in DoPT OM dated 10.04.1989 which clearly provides that in cases where UPSCs approval is required the date of UPSCs letter communicating its approval or the date of actual promotion of the officer, whichever is later, should be the date of regular promotion of the officer. It is also submitted that the DoPT has clarified that even if the Department is unable to hold the DPC in time for any bona fide reason, it does not give rise to any vested right for promotion from the date/year of vacancy and that there is no concept of `date as due in the matter of appointments including promotion, and it is, therefore, not possible to provide the relief sought for. It is further stated that efforts have been constantly made to stream line the system and to reduce the delay but in spite of these efforts, some delay has occurred but this cannot result in the applicants being allowed to claim retrospective promotion.
10. In the Written Submissions filed on 05.03.2012, the respondents have also opposed the OA on the following additional grounds:
a) that the OA is time barred and not maintainable in view of Section 21 of the Administrative Tribunals Act, as the cause of action arose for the applicants on 22.3.2005, when they were promoted w.e.f. 14.1.2005. In the matter of promotion or seniority, there is no continuing cause of action, and repeated representation does not give a fresh cause of action.
b) that no fundamental right or any statutory right or other enforceable right of the applicants has been infringed and that applicants cannot rely upon the policy guidelines/administrative instructions as regards holding of DPC since the same does not give any enforceable right to the applicants (See: C.J.Fernandes vs. State of Mysore & Ors., AIR 1967 SC 175; J.R.Raghupati & Ors. v. State of A.P. & Ors., 1988 (4) SCC 364 and Chief Commercial Manager, South Central Railway, Secunderabad v. G. Ratnam & Ors., 2007(8) SCC 212).
c) that the action of the respondents in issuance of the promotion order from the date of receipt of communication from the select list of the DPC held by UPSC is just, bonafide and in accordance with the policy guidelines of the Government which provides as under:
6.4.4. Promotions only prospective While promotions will be made in the order of the consolidated select list, such promotions will have only prospective effect even in cases where the vacancies relate to earlier year (s).
d) that the recruitment rules or the policy instructions of the Govt. do not provide for grant of retrospective seniority or promotion from the date prior to the date of appointment. It is trite law that seniority is not a fundamental right but a civil right and can be granted only in accordance with the recruitment rule or in absence thereof as per policy guidelines of the Government. Likewise, promotion is also not a fundamental right but it is only consideration thereof in accordance with the rules of the Govt. It is also settled law that a person cannot claim seniority from the date when he was not borne in the cadre. Mere occurrence of a vacancy prior to the date of appointment does not give enforceable right to the applicant to claim retrospective promotion from the date of occurrence of vacancy or retrospective seniority.
11. In support of their contentions, the following judgements have been relied on by the learned counsel for the respondents:
Union of India & Others v. K.K.Vadera and Others, (Civil Appeal No.4494 of 1989, decided on 26.10.1989).
State of Bihar and Others v. Akhouri Sachindra Nath and Others, 1991 Supp (1) SCC 334 [decided on 19.04.1991] Baij Nath Sharma v. Honble Rajasthan High Court at Jodhpur and Another, reported in 1998 (7) SCC 44.
Uttaranchal Forest Rangers Assn. (Direct Recruit) and Others v. State of U.P. and Others, (2006) 10 SCC 346 [decided on 25.09.2006].
State of Uttaranchal and Another v. Dinesh Kumar Sharma, (2007) 1 SCC 683 [decided on 4.12.2006].
Sh. Anil Kapur v. UOI & Others, OA No.1158/2008, decided on 4.09.2009 by this Tribunal.
Union of India v. Vijendra Singh, 2011(1) 76 DLT 247.
12. We have heard the counsel for the applicant and also the respondents counsel and the counsel representing the private respondents.
13. As regards limitation, this has already been dealt with in our order dated 29.01.2010 and to this extent, the High Court of Delhi has also not made any adverse view in its order. However, for the sake of ready reference we repeat the same again. The seniority list had been drawn up sometime in the year 2006 and representations had been made against the same and the respondents reply was issued on 20.12.2007 in the case of Sh. Y.S.Chaudhary) and this OA has been filed by the applicant on 21.01.2008, i.e., within one year of the rejection of the representations, as such clearly the question of limitation is not attracted in this case under Section 21 of the Administrative Tribunals Act, 1985.
14. We now deal with the other submission(s) of the counsel.
As can be made out from the pleadings of the respective parties, the facts in this case are not in dispute. Although, the OA has been filed by five applicants, for convenience, we will deal with the case of the first applicant herein, as the cases of other applicants are identical.
15. In terms of Rule 209(B) of the Indian Railway Establishment Code, Volume-I, appointments to posts in the Junior Scale are to be made by selection on merit from amongst Group `B officers with not less than 3 years of non fortuitous service in the grade. The applicant had completed three years service in the year 1992 and had become eligible to be inducted into Group `A Junior Scale of IRSE from the year 1992. The respondents were to fill up 66 vacancies pertaining to the year 2002-03 by promotion to Group `A Junior Scale from Group `B.
16. We may, at the outset, briefly advert to the instructions of the Government of India with regard to the constitution and functioning of DPCs. The various instructions on this subject have been updated and consolidated in the form of Guidelines on Departmental Promotion Committee and have been circulated vide DoPTs OM No.22011/5/86-Estt.(D), dated 10.04.1989 as amended by OM No.22011/5/91-Estt. (D), dated 27.03.1997. These instructions interalia provide for timely convening of DPCs and prescribe that that DPC should meet at regular annual intervals to draw up the panels to be utilized for the promotions over a year.
action should be initiated well in advance without waiting till a vacancy occurs.
Convening of DPC meeting can be dispensed with only after a certificate is issued by the Appointing Authority that there are no vacancies to be filled that year.
17. The main focus and emphasis in all the instructions issued on this subject is that Ministries/Departments should take action to fill up posts in time so as to ensure that there is no delay and that the DPC panel should be available in advance for vacancies arising over a year. This was emphasized even at the level of the Prime Minister as would be seen from the DoPTs OM No.23036/3/77-Estb.(D) dated 7.10.1977 (Annexure P2), the relevant portion of which is extracted below:
The Prime Minister has noted that in a number of cases appointments are made adhoc either because Recruitment Rules have not been finalized or there has been delay in the filling up of the posts in a regular manner. The Prime Minister has, therefore, desired that Ministries/Departments should take action to fill up the posts in good time before vacancies actually occur in order to avoid adhoc appointment. In case where there is unjustifiable delay, responsibility for the delay should be assigned and those responsible should be suitably dealt with it.
18. Towards this end, in 1998 the DoPT also issued a Model Calendar for DPCs and related matters vide OM No.22011/9/98-Estt.(D), dated 8.09.1998 read with OM of even number dated 13.10.1998. The relevant portions of the said OMs are extracted below:
G.I., Dept of Per. & Trg., O.M. No.22011/9/98-Estt.(D), dated the 8th September, 1998 read with O.M. of even number, dated the 13th October, 1998.
Model Calendar for DPCs and related matters The undersigned is directed to invite reference to the Department of Personnel and Training Office Memorandum No.22011/5/86-Estt.(D), dated April 10, 1989 containing consolidated instructions on DPCs. These instructions inter alia provide that the DPCs should be convened at regular intervals (by laying down a time-schedule for this purpose) to draw panels which could be utilized for making promotions against the vacancies occurring during the course of a year. This enjoins upon the concerned authorities to initiate action to fill up the existing as well as anticipated vacancies well in advance of the expiry of the previous panel by collecting relevant documents like seniority list, Annual Confidential Reports (ACRs), integrity certificates, etc., for placing before the DPCs. The instructions further provide that the DPCs should consider ACRs for equal number of years in respect of all officers considered for promotion. The DPCs should assess the suitability of the officers for promotion on the basis of their service records and with particular reference to the ACRs for five preceding years. However, in cases where the required qualifying service is more than five years, the DPCs should see the records with particular reference to the ACRs for the years equal to the required qualifying service. Instructions further provide that no proposal for holding a DPC or Selection Committee should be sent to the UPSC until and unless all the ACRs, complete and up-to-date, are available.
2. The importance of keeping the ACR dossiers up-to-date and of timely convening of DPCs cannot be overemphasized. Instances have, however, come to the notice of the Department of Personnel and Training where the DPCs could not be held in time owing to non-availability of complete ACR dossiers of the officers in the zone of consideration and also for lack of prompt administrative action. This invariably delays promotions resulting in considerable frustration among the officials, thereby adversely affecting their morale and overall productivity. As such, some remedial action in this regard has become essential.
3.1 Keeping the aforesaid objective in view, it has been considered imperative to provide for a time-schedule, for convening DPCs not only in time but in sufficient advance also so as to utilize the prepared panel as and when the vacancies arise during the course of the vacancy year. For practical reasons, it is also considered desirable to have separate timeschedules for cases requiring approval of the Appointments Committee of the Cabinet and cases which do not require such approval. Accordingly, in order to complete all required action, including the approval of the Competent Authority, well in time (before the commencement of the panel or vacancy year), the administrative action for convening DPCs, in the cases requiring approval of the ACC (ACC cases), could, as such, be initiated at least eight and a half months before the commencement of the vacancy year and, similarly, DPCs in such cases could be held at least four months before the commencement of the vacancy year. This means that there would be a clear period of the first three and a half months of the year immediately preceding the vacancy/panel year available for completion of the ACRs, etc., followed by another four and a half months time for holding of DPCs. The next one month could be devoted to the post-DPC follow-up administrative action by the Administrative Ministry/Department. The final three months period prior to the commencement of the vacancy year could be left for approval of the Competent Authority (the ACC).
3.2 In relation to the cases which do not require approval of the ACC (non-ACC cases), the aforesaid time-schedule could follow a different pattern in regard to various activities as discussed above. This is considered desirable to give sufficient time to the UPSC for holding DPCs in such cases. Accordingly, the administrative action for convening DPCs in such cases could be initiated at least eight months before the commencement of the vacancy year and, similarly, DPCs could be held at least two months before the commencement of the vacancy year. This means that there would clearly be the first four months of the year immediately preceding the vacancy/panel year available for completion of ACRs, etc., followed by another six months time for holding of DPCs. The final two months could, as such, be devoted to the post-DPC follow-up administrative action, including approval of the Competent Authority. The aforesaid time-schedule, both in `ACC and `non-ACC cases, may be sufficient by any reckoning. Thus, the Model Calendar of events for ACC/non-ACC cases may follow the following illustrative pattern and the DPCs may ordinarily be held accordingly. (Emphasis supplied) For the sake of convenience, the suggested Model Calendar for DPCs pertaining to the Non-ACC Cases, [for the vacancy year 2000-2001 and 2000 in respect of the Financial Year-based and Calendar Year-based respectively], which is applicable to the case in this OA, is reproduced below:
SUGGESTED MODEL CALENDAR FOR DPCs Events 1 Financial Year-based 2 Calender Year-based 3 Non-ACC Cases [Other grades/posts (with/without association of the UPSC)] (A) Completion of ACRs/Integrity Certificates/Vigilance Clearance/Seniority List/Penalty and vacancy Position., etc and forwarding DPC proposal to the UPSC.
(B) Last date for sending complete proposals along with relevant Recruitment/Service Rules to the UPSC [Efforts should be made to send the proposal to the UPSC as soon as possible without waiting for the last date).
(C) DPC to be held (D) On receipt of DPC minutes from the UPSC, post-DPC follow-up action (including approval of the Competent Authority) by the Administrative Ministry /Department.
(E) Last date for getting ready the approved select panel by the Administrative Ministry/Department April July, 1999 July 31, 1999 August, 1999 January, 2000 February-
March, 2000 March 31, 2000 January April, 1999 April 30, 1999 May-
October, 1999 November-
December, 1999 December 31, 1999
19. In fact, Government went to the extent of prescribing that any delay should be treated as a very serious lapse and, therefore, another OM No.22011/9/98-Estt. (D) dated 14.12.2000 was issued by the DoPT, prescribing that in the event of non-adherence to the time-frame, responsibility for the lapse be fixed. The relevant portion of the said OM is extracted below:
G.I., Dept of Per. & Trg., O.M. No.22011/9/98-Estt.(D), dated the 14th December, 2000.
Non-adherence to prescribed time-frame is a serious concern and responsibility for the lapse to be fixed The undersigned is directed to invite reference to the Department of Personnel and Training O.M. of even number, dated September 8, 1998 prescribing a Model Calendar for DPCs in order to ensure that DPCs are convened in advance and approved select panels are prepared well before commencement of the relevant vacancy years. All Ministries/Departments were also requested vide D.O. letter of even number, dated March 29, 2000 of Secretary (Personnel) for strict compliance of the instructions so as to achieve the desired objectives of timely convening of DPCs/preparation of approved select panels within the prescribed time-frame. Despite repeated communications to this effect, some of the Ministries/Departments are yet to implement these instructions. Non-adherence to the prescribed time-frame is resulting in continued delay in convening DPCs. The UPSC has, on several occasions in the past, brought this not-so-satisfactory position to the notice of the Department of Personnel and Training. This is indeed a matter of serious concern for the Government. Hence, all concerned authorities are once again counseled to ensure adherence to the Model Calendar which has been devised as a system-improvement measure. In case of non-adherence to the prescribed time-frame, steps should be taken to fix responsibility for the lapse in this regard.
2. Ministries/Departments are requested to give wide circulation to these instructions to ensure strict adherence to the time-schedule prescribed as per the Model Calendar for DPCs.
20. In the case before us, the vacancies circulated for the exam year 2001, were supposed to be effective from 01.04.2002 on wards but the panel was made available w.e.f. 14.01.2005 only, i.e., after a delay of more than three years. The applicant became eligible for promotion in 2001 and was already working on the post on ad-hoc basis which would show that the vacancies were also available at that time but still the applicant was denied the benefit of his regular induction on account of the administrative delay, which was for a period of more than three years.
21. The counsel for the applicant has provided the following Chart, which indicates the extent of delay year-wise in preparation/conducting of the DPC:
DPC for the vacancy year Should have been sent But information sent to UPSC Returned by UPSC with deficiencies Final proposal received DPC conducted on 2000-2001 Aug., 1999 15.05.2001 15.5.2001 28.2.2002 4-6 March, 02 (with 4-5 days) 2001-2002 Aug., 2000 15.05.2001 15.5.2001 28.2.2002 4-6 March, 02 (with 4-5 days) 2002-2003 Aug., 2001 02.6.2003 03.6.2003 2.11.2004 18-19 Nov., 04 (within 16 days) It is evident from a perusal of the Chart above, that the delay is on the part of the Railway Administration only as the UPSC has taken maximum 16 days only to conduct the DPC.
22. As already mentioned earlier, the respondents have stated in their counter that preparatory work for a DPC in the Railways is a time-consuming process and that some delay in holding the DPC meetings for these bona fide reasons becomes unavoidable. It is also pointed out that promotion of Group `B officers of Zonal Railways to Group `A are regulated in terms of Zonal Railways to Group `A are regulated in terms of the guidelines contained in DOP&Ts OM No.22011/5/86-Estt.(D) dated 10.4.1989. The relevant paras of DoPT instructions with regard to the date from which promotions are to be treated as regular, which are of relevance to this OA, are paras 17.10.and 17.11, and are as under:
17.10 The general principle is that, promotion of officers included in the panel would be regular from the date of validity of the panel or the date of their actual promotion, whichever is later.
17.11 In cases where the recommendations for promotion are made by the DPC presided over by a Member of the UPSC and such recommendations do not require to be approved by the Commission, the date of Commissions letter forwarding fair copies of the minutes duly signed by the Chairman of the DPC or the date of the actual promotion of the officers, whichever is later, should be reckoned as the date of regular promotion of the officer. In cases where the Commissions approval is also required, the date of UPSCs letter communicating its approval or the date of actual promotion of the officer, whichever is later, will be the relevant date. In all other cases, the date on which promotion will be effective will be the date on which the officer was actually promoted or the date of the meeting of the DPC, whichever is later. Where the meeting of the DPC extends over more than one day the last date on which the DPC met shall be recorded as the date of meeting of the DPC. It is submitted that as per para 17.11, in the cases where the commissions approval is also required, the date of UPSCs letter communicating its approval or the date of actual promotion of the officer, whichever is later, should be reckoned as the date of regular promotion of the officer, and, therefore, the promotions given effect to in case under reference have correctly been from 14.01.2005.
23. It is also stated that in the past Railway Federations also had highlighted the issue of delay in promotion on account of delay in conducting DPCs. The Federations demand for the grant of promotions with retrospective effect in such cases of delay had been considered and a reference was also made to DOP&T vide Boards OM No.E(GP) 2004/1/23 dated 1.7.2004, requesting it to consider giving promotions with retrospective effect, reckoning the vacancy year as the due date of promotion rather than the date of approval of UPSC. However, DOP&T in reply vide OM No.22012/1/2201-Estt.(D) dated 29.7.2004, maintained its consistent policy, underlined in its OM dated 10.4.1989, stating inter-alia that if the department is unable to hold DPC in time for any bonafide reason, it does not give rise to any vested right for promotion from the date/year of vacancy.
24. The relevant portion of the DoPT OM dated 29.07.2004, referred to above, is reproduced below:
. Normally, there should be no delay in holding of DPCs and the system should be so streamlined that the delay, if any, are minimized. In fact, ideally the DPC should be held as per the model calendar prescribed vide DoPT OM dated 8th September, 1998. However, there may still be a case where the DPC may be delayed for a valid reason. If the Department is unable to hold the DPC in time for any bonafide reason, it does not give rise to any vested right for promotion from the date/year of vacancy in terms of some of pertinent judgments enclosed. (Emphasis supplied) We have perused the OM referred to by the respondents and find that both the OMs (that dated 10.4.1989 and the one dated 29.07.2004) would apply to cases in which there are bona fide reasons for delay in holding the relevant DPC meetings the exact words used have been highlighted above.
25. It has also been brought to our notice that the DoPT guidelines also lay down the procedure to be followed where DPCs have not met for a number of years. This is extracted below:
6.4.1 Where for reasons beyond control, the DPC could not be held in an year(s), even though the vacancies arose during that year (or years), the first DPC that meets there after should follow the following procedures.
Determine the actual number of regular vacancies that arose in each of the previous year (s) immediately preceding and the actual number of regular vacancies proposed to be filled in the current year separately.
Consider in respect of each of the years those officers only who would be within the field of choice with reference to the vacancies of each year starting with the earliest year onwards.
Prepare a `Select List by placing the select list of the earlier year above the one for the next year and so on. 6.4.2. ..
6.4.3. 6.4.4. Promotions only prospective- While promotions will be made in the order of the consolidated select list, such promotions will have only prospective effect even in cases where the vacancies relate to earlier year (s). It is the contention of the respondents that Para 6.4.4 prescribed that promotions will have only prospective effect even in cases where the vacancies relate to earlier year (s). However, in our view, para 6.4.4 is qualified by para 6.4.1 and will have to be read along with it. It would, therefore, apply only in cases where the DPC could not be held for reasons beyond control. The repeated emphasis in various instructions issued by the DoPT is on convening DPCs/preparing of promotion panels in time, and it is not open to the respondents to ignore these instructions and place reliance only on a particular para of the instructions.
26. The crucial question, and in fact the only question, to be decided in this OA is whether the delay on the part of the respondents in convening the relevant DPC was bona fide and for reasons beyond control or just the result of administrative laxity/lethargy and could have been avoided.
27. The respondents submission that a lot of time is consumed in preparatory work for convening the DPCs in the Railways is much too general and unsustainable in the light of the detailed instructions issued by the DoPT to take sufficient advance action to ensure that the DPC proposals/panels for promotion are ready in time as per the time Schedule/Model Calendar prescribed. Further, if we were to accept such a general statement, it would tantamount to our accepting that DPCs in the Railways can never be convened in time. The inordinate delay of as long a period as three years would need to be explained by specific and detailed reasons. We gave the respondents full opportunity during the course of the arguments to come up with satisfactory reasons to establish that the delay was bona fide and for reasons beyond control and, therefore, unavoidable but apart from their general submission that the Railways has Departments/Offices located at various places of the country, which results in considerable time being taken in collection of inputs for DPCs, such as ACRs and other details of eligible persons, etc., they were not able to come up with any other valid reasons for the delay.
28. In view of the crucial and importance of this aspect, the respondents were also directed to file written submissions indicating specific reasons for the delay in holding of the DPC. The respondents filed their written submissions on 19.01.2010 giving reasons. These are in two parts General for all DPCs and Specific reasons pertaining to DPC for IRSE for 2002-03 and are reproduced below:
General for all DPCs For framing a DPC proposal for promotion to Group `A of any of the Railway Services, the basic inputs, viz. seniority list of Group `B officers, their ACRs of preceding 5 years, vigilance/D&AR report, etc. are all provided by the zonal railways/production units. There are 16 zonal railways and 6 production units each having officers of 8 major departments having organized services besides officers of 9 misc. departments. Collection of all the aforesaid documents from all the zonal railways/production units are steps that are inbuilt in the DPC mechanism and cannot be avoided. A lot of time is, therefore, consumed in doing the preparatory work for convening the DPC and some delay in holding the DPC meetings for these bonafide reasons become unavoidable.
Efforts are constantly being made to improve and streamline the system of collection of documents from the units and thus to reduce the delay in the promotions of Group `B officers. Presently, for all the 8 major departments having organized services, DPCs have been finalized upto the vacancy year 2008-09, and DPC proposals for 2009-10 have been sent/are being sent.
It is also pointed out that progress of the DPCs for earlier years has a bearing on progress of the DPCs for subsequent years. Efforts are made wherever possible to club DPCs of more than one vacancy year together to avoid the delays percolating to subsequent years.
Specific reasons pertaining to DPC for IRSE for 2002-03 The DPC for the two earlier years viz. 2000-01 and 2001-02 was held by UPSC on 12-14 August, 2002. Minutes of the DPC were received vide UPSCs letter dated 13.09.2002 and promotion orders issued thereafter. On account of a few errors in the DPC recommendations, DPC for both the years required review and Review DPC proposal sent to UPSC on 06.06.2003. Meanwhile, the railway wise allotment of vacancies with community-wise break up for vacancy year 2002-03 initiated on 20.03.2003.
The DPC proposal sent to UPSC on 30.05.03 for a total of 91 vacancies, including additional vacancies over and above the percentage prescribed in Recruitment Rules. The bulk of ACRs was sent on 18.06.2003. The integrity certificate (clear and non-clear), list of penalties imposed sent on 26.06.2003 and the remaining ACRs were sent on 17.07.2003.
Thereafter, matter remained under correspondence/discussion with UPS regarding additional vacancies over and above the prescribed percentage for the vacancy year 2002-2003. The facts relating to the additional vacancies are given in greater detail hereafter for better appreciation. In order to reduce stagnation amongst Group `B officers of various departments on the Railways, it was decided by the Ministry of Railways to allot additional vacancies to the promotion quota, over and above the normal quota, in Junior Scale of 5 of the Services, namely, IRSE, IRSEE, IRSME, IRTS and IRPS, where stagnation was acute. Accordingly, while on the one hand, the concurrence of the UPSC to the additional vacancies was sought, on the other hand, in the DPC proposals pertaining to the Vacancy Year 2002-03, the additional vacancies were included. UPSC raised a number of issues in respect of the additional vacancies. In this regard several rounds of discussions and correspondence took place with UPSC. It was suggested by UPSC that since the question of inclusion of additional vacancies for promotion quota raises several issues and have to be decided independently in consultation with DOP&T, inclusion of additional vacancies should be de-linked from the DPC proposals for normal promotion quota so that the DPCs for the vacancy years 2002-03 and 2003-04 are finalized without further delay. This issue was also discussed with the Federations who were not in favour of the suggestion of UPSC but eventually, in view of the DPCs getting delayed on this account, it was decided by Railway Board that revised DPC proposals, for the normal vacancies, be sent to UPSC.
The proposal was thereafter recast excluding additional vacancies as the same was not eventually agreed to by the UPSC. The revised proposal was sent on 14.11.2003 (Total vacancies 66). The review DPC proposal for 2000-01 and 2001-02, and Revised DPC proposal for 2002-03 remained under examination by UPSC and correspondence with Ministry of Railways on specific queries relating to the DPCs.
The DPC meeting fixed by UPSC initially for 4th & 5th November, 2004. DPC meeting rescheduled by UPSC for 18th & 19th November, 2004. The Review DPCs (for 2000-01 & 01-02) and Regular DPC for vacancy year 2002-2003 held on 18-19 Nov. & 31 Dec. 2004 by UPSC. The minutes of the DPC were received vide UPSCs letter dated 14.01.2005 and promotions given effect to from 14.01.2005.
The delay in the said DPC of about 2 years are thus due to genuine, bonafide and unavoidable reasons.
29. As observed earlier, the general reasons given for delay are not acceptable in view of the clear instructions of the DoPT reiterated from time to time, even at the level of the Prime Minister himself, that advance action needs to be taken to ensure that DPCs are held in time and that the panel for promotion is available in time. Further, these general reasons fall on their feet in the light of the respondents own assertion that the proposals for 2009-10, have been sent. The reasons given by the respondents under `Specific reasons pertaining to DPC for IRSE for 2002-03 do not establish or explain in any way how the inordinate delay in the DPC proposal for 2002-03 was on account of `reasons beyond control. In fact, a perusal of the same shows that the UPSC was responding very promptly to proposals sent whereas the Railway Administration took time, e.g., the UPSC recommendations for 2000-01 and 2001-02 were received on 16.9.2002 but on account of a few errors in the DPC recommendations - what these errors were has not been mentioned review DPC proposal was sent to the UPSC on 16.06.2003, i.e., after over 9 months (!), and without complete ACRs which were finally sent on 17.07.2003. The delay in the matter was glossed over even though the respondents were fully aware of stagnation amongst Group `B officers of various departments of the Railways including in the IRSE where stagnation was acute. In spite of being aware of this, another year and a half was wasted in correspondence/discussion regarding additional vacancies over and above the percentage prescribed in the Recruitment Rules, and finally the proposal sent was without these additional vacancies (!). The DPC was finally held on 18-19 November 2004 and 31st December 2004. We are of the considered opinion that the inordinate delay with regard to the 2002-03 DPC stands unexplained.
30. We were also not given even a single instance of any case in which the concerned Railway official had been reprimanded or cautioned or punished for delay on his part in this regard as clearly directed in DoPTs OM of 2004, referred to above.
31. Therefore, we have no hesitation in holding that the present case will not fall in the category mentioned in para 6.4.1 above, i.e., where for reasons beyond control, the DPC could not be held and, therefore, para 6.4.4. would not be applicable. The case, therefore, must be categorized as a case of unexplained delay attributable to administrative laxity/lapses. In fact, although this may not be the case here, such delays can also be deliberate and can be resorted to, to deprive an individual or a group/class of individuals, the benefit of promotion which would accrue to them in normal course had their cases been dealt with promptly. Such a position cannot be allowed to continue or go unnoticed.
32. The delay in this case has caused material prejudice to the applicant(s) which would be of a permanent and continuing nature as it would affect him (them) at every stage of his (their) career (s), through loss of seniority, delay in further promotions and also monetary loss through out service and perhaps even after retirement (as a result of the drawal of lower pensionary benefits). As this delay has occurred for absolutely no fault on their part, there is considerable justification for considering positively the request of the applicants to antedate their promotion/induction to Group `A Junior Scale of IRSE from the date when the vacancies actually arose in 2002-2003 instead of from 14.01.2005.
33. The respondents have pointed out that if such directions are given for grant of promotion to the applicants to Group `A from a notional date, i.e., the first day of the vacancy year i.e. 1.04.02 and if along with it, the benefit of antedating of seniority by 5 years is also retained, then it would amount to grant of seniority in Group `A from 1.04.1997. This would lead to their placement in the integrated seniority list below the junior-most direct recruit IRSE officer of 1994 Engineering Services Examination Batch (earliest date of joining in the batch was 02.01.96). We, however, do not find this to be a justifiable reason not to set right the adverse consequences that have accrued to the applicants for no fault of theirs.
34. We also find that we must allow this on the basis of the Judgement of the Honble Apex Court in P.N.Premachandran v. The State of Kerala and Ors., [Civil Appeal No.4100/1998, decided on 6.11.2003], reported in (2004) 1 SCC 245 and the decision of a Co-ordinate Bench of this Tribunal in OA No.2364/2008 (M.A.Khan v. Union of India & Anr.) decided on 3.11.2009, which are briefly discussed below.
35. The Honble Apex Court in P.N.Premachandran (supra), referred to above, held that employees cannot be made to suffer on the basis of the administrative lapses as a result of which DPC was not conducted in due time. It has further been laid down that the promotion in case of late holding of DPC shall relate back to the date on which the vacancy actually arose in such cases. The relevant portion of the said judgement is extracted below:
7. It is not in dispute that the posts were to be filled up by promotion. We fail to understand how the appellant, keeping in view the facts and circumstances of this case, could question the retrospective promotion granted to the private respondents herein. It is not disputed that in view of the administrative lapse, the Departmental Promotion Committee did not hold a sitting from 1964 to 1980. The respondents cannot suffer owing to such administrative lapse on the part of the State of Kerala for no fault on their part. It is also not disputed that in ordinary course they were entitled to be promoted to the post of Assistant Directors, in the event, a Departmental Promotion Committee had been constituted in due time. In that, view of the matter, it must be held that the State of Kerala took a conscious decision to the effect that those who have been acting in a higher post for a long time although on a temporary basis, but were qualified at the time when they were so promoted and found to be eligible by the Departmental Promotion Committee at a later date, should be promoted with retrospective effect. Although the respondents have stated the case of P.N.Premachandran v. State of Kerala & Ors., AIR 2004 SC 255 is not a binding precedent in as much as not only it has considered the various judgements refered to supra but also it was rendered in the facts of that case, we do not agree as the direction of the Honble Apex Court, though related and issued with reference to the facts of the case, was that persons cannot suffer owing to administrative lapses on the part of the State .for no fault on their part.
36. In the case decided recently (on 3.11.2009) by a Coordinate Bench of this Tribunal in the OA 2364/2008, referred to above, the applicant belonged to Group `A of the Indian Supply Service and had been promoted w.e.f. 14.06.2007 as Director in the Junior Administrative Grade Service. The vacancy in this Grade became available on 31.10.2003 and according to the rules, the DPC for this should have been convened by 31.03.2003, but was delayed on the ground that litigation with regard to seniority was pending in different fora. The Tribunal did not find this to be a justified reason for not convening the DPC(s) regularly for year-wise vacancies (as there was no stay) and observed that the applicant had become entitled for consideration for promotion to the post of Director from the year 2003 whereas he had been promoted only in the year 2007, and accordingly directed as follows:
7 we allow this application, directing the respondents to consider promotion of the applicant from the year 2003 by constituting a review DPC, if required. Let this exercise be done as expeditiously as possible and preferably within a period of three months from today. There shall, however, be no orders as to costs. In the case in this OA also, there was no valid reason to have delayed the DPC and the delay was entirely due to the respondents for no fault on the part of the applicants, and similar directions, therefore, need to be issued.
37. The respondents in their counter reply have sought support from several Judgements/orders that are listed in para 11 above. However, in view of the Apex Court decision in P.M.Premachandran (supra), decided on 6.11.2003. We do not find it necessary to discuss any of the cases cited which were decided before 6.11.2003. We, however, proceed to discuss below the applicability (to the case in the present OA) of the judgements viz. Uttaranchal Forest Rangers Ass. (Direct Recruit) and Othes v. State of U.P. and Others,, (2006) 10 SCC 346, decided on 25.09.2006 and State of Uttaranchal and Another v. Dinesh Kumar Sharma, (2007) 1 SCC 683, decided on 04.12.2006.
In Uttaranchal Forest Rangers Association (Direct Recruit) & Ors v. State of U.P. and Others (supra) promotion was given to the respondents from the post of Dy. Forest Ranger to the post of Forest Ranger in 1991 from the date of taking charge although there were no vacancies in the promotion quota. On the other hand, appellants direct recruits were substantively appointed to the post of Forest Ranger in 1990 within their quota. As per Rule 8 of U.P.Government Servants Seniority Rules, 1991, seniority has to be given only from the date of substantive appointment It was held that promotion in excess of quota was ad hoc, and seniority cannot be given to promotees on the basis of such ad hoc promotions and that promotees who were appointed in 1991 cannot claim seniority over direct recruits who were substantively appointed at a prior point of time in 1990. It was in these circumstances, that the Honble Apex Court observed that Retrospective seniority cannot be granted to promotees from the date vacancies arose when they had not even been borne on the cadre so as to adversely affect direct recruits who had been appointed validly in the meantime. The case is clearly distinguishable and the decision in that case would not be applicable to the case in this OA.
38. In State of Uttaranchal and Another v. Dinesh Kumar Sharma (supra), a matter of promotion/seniority under the U.P.Agriculture Group `B Service Rules, 1995 was considered in the context of the specific provisions of U.P.Govt. Servants Seniority Rules, 1991 and although the issues considered viz.,
(i) Whether the respondent has the right to claim promotion and seniority from 1995-96 when the vacancy arose or whether his seniority will be reckoned from the date of substantive appointment which is in the year 1999.
(ii) Whether the High Court was justified in overlooking and ignoring the provisions of the U.P.Government Servants Seniority Rules, 1991 and grant a relief in favour of the respondents. may appear to be similar to those in the present OA, the case is clearly distinguishable as the judgement given was on the basis of the specific provisions of the U.P.Govt. Rules of 1995 and 1991. The relevant paras of the Judgement are extracted below:
35. Coming to the question of whether the High Court was justified in overlooking and ignoring the provisions of the U.P. Government Servants Seniority Rules, 1991 and grant a relief in favour of the respondents, it will be helpful to reproduce the High Court's order:
"From the perusal of the aforesaid order, it is clear that the authority has not applied its mind on the facts of the case as stated by the petitioner, in the representation, and has rejected the representation on the ground that since the appointment letter was issued to the petitioner on 19.11.1999, therefore he is entitled to his seniority from that date. Even if the recruitment year is changed the order of appointment cannot be made with retrospective effect. The authority has failed to appreciate that if the fact of vacancy being accrued in the recruitment year 1995-96 i.e. on 1st May, 1996 and second vacancy on 1st June 1996 had come to the knowledge of the Commission the Commission could have given the promotion to the petitioner w.e.f. these dates, as the petitioner was entitled for the same and the Commission has found him suitable, which is evident from the promotion order dated 19.11.1999. Therefore, this could have consequently affected the consequential benefits available to the petitioner had his promotion being made w.e.f. the date of promotion of falling of vacancy. Therefore, the order dated 1st October, 2002 suffers from non application of mind and is hereby liable to be ignored.
The fact that the vacancy had fallen on 1st May, 1996 and 1st June, 1996 in the recruitment year 1995-96 is not disputed by the respondents. The petitioner cannot be made to suffer on account of delay in recommendation by the Director of Agriculture for promotion of the petitioner. The petitioner cannot be held responsible and cannot be made to suffer as such became entitled to be considered for promotion on 1st May, 1996. Therefore, the government is directed to re-consider the matter and send it back to the Commissioner for appropriate orders suitable in the facts and circumstances of the case. Subject to the above, the writ petition is disposed off finally."
36. This observation of the High Court in our view is erroneous. The High Court while observing that, "the appellants rejected the representation of the respondents on the ground that since the appointment letter was issued to the respondent on 19.11.1999, he is entitled to his seniority from that date. The authority has failed to appreciate that if the fact of vacancy being accrued in the recruitment year 1995-96 i.e. on 1st May, 1996 and second vacancy on 1st June 1996 had come to the knowledge of the Commission the Commission could have given the promotion to the petitioner w.e.f. these dates, as the petitioner was entitled to the same and the Commission has found him suitable, which is evident from the promotion order dated 19.11.1999", has committed an error in understanding and appreciating Rules 17 and 21 of the Uttar Pradesh Agriculture Group "B" Service Rules, 1995 and Rule 8 of the U.P. Government Servants Seniority Rules, 1991, which categorically state that the date of 'substantive appointment' will be the date that shall be taken for determining promotion, seniority and other benefits.
The two judgements of the Apex Court are, therefore, distinguishable and not applicable to the case in the present OA and would not help the respondents. As already mentioned (in para 25), the DoPT instructions relating to promotions having only prospective effect even in cases where vacancies relate to earlier years have a qualification, viz., that the concerned DPC could not be held for reasons beyond control and, as already discussed, there were no reasons beyond control in the present case.
39. We, therefore, hold that the delay in this case does not stand sufficiently explained and we have no hesitation in reiterating that the delay in this case is attributable entirely to administrative inefficiency/laxity in sending of complete particulars/proposals/ACRs. If such inefficiency/laxity in sending proper and complete proposals/particulars are accepted as constituting bonafide and sufficient cause for delaying DPCs, then it would be possible for any group of people in the administration to deny promotions to persons who are legally entitled/eligible to be considered for the same, by deliberately delaying matters by sending incomplete particulars and records in piecemeal. Such a situation cannot obviously be allowed, as it adversely impacts the right of an individual to be considered for promotion when he is eligible and when vacancies are available.
40. As regards the submission of the official respondents that no fundamental right or any statutory right or other enforceable right of the applicants has been infringed, we do not find the same to be acceptable. In a catena of judgements, the Honble Supreme Court has laid down that if the rules are silent in any particular aspect, the Government will be within its powers to fill up the gaps and supplement the rules and issue instructions which are not inconsistent with the Rules already framed. The rules and such instructions are required to be followed together and it is not permissible to act contrary to instructions so issued. In this connection, we may usefully quote the following relevant extracts from the Judgement of the Honble Apex Court in Guman Singh v. State of Rajasthan, 1971 (2) SCC 452:
39. Then the question is whether government is competent to issue the said Circular and whether the Circular in any manner affects the discretion and powers of the Committee functioning under the statutory rules. The position is clear, as laid down by this court in Sant Ram Sharma v. State of Rajasthan and Another (supra):
"It is true that the government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed."
40. Having due regard to the principles stated above, we will now examine the scope and contents of the Circular. The Circular contains administrative instructions and it does not profess to lay down anything else. The government has issued those instructions "for the guidance of all selection/promotion committee and appointing authorities mentioned in the Statutory Service Rules. These administrative instructions and the Statutory Service Rules should together be taken as a complete code on the subject".
41. From the above extract it is clear that in the matter of selection or promotion the Committees concerned are enjoined not only to have regard to the statutory rules under which they function, but also to the administrative instructions given in the Circular. This makes it very clear that it is not open to the Committee concerned to ignore the instructions contained in the Circular or to act contrary to the directions contained therein..
41. We, therefore, repel the submission of the respondents counsel that the action of the respondents in issuance of the promotion order from the date of receipt of communication from the select list of the DPC held by UPSC is just, bonafide and in accordance with the policy guidelines of the Government which provides that promotions will have only prospective effect even in cases where the vacancies relate to earlier year (s). We have already observed earlier that this is applicable only where the delay in holding the DPC is justified and attributable to reasons beyond control.
42. We now come to the last submission of the counsel for the respondents relating to the law of binding precedent. We not only accept this but strongly emphasize that all subordinate Courts in the country are bound by the orders of the Honble Apex Court, and that this Tribunal is bound by the orders of the High Court and also the orders of Coordinate Benches of this Tribunal in identical issues.
43. Most of the Judgements, relied upon by the respondents, have already been considered hereinbefore and have been found to be not applicable to the special circumstances in this case. The learned counsel for the official respondents heavily relied on the Judgement of the High Court of Delhi in Virender Singh (supra) and stated that the promotions must be from the date of actual promotion and cannot be given retrospective effect.
44. In this connection, we find that the decision of the Honble High Court of Delhi in the case of Vijinder Singh(supra) has already been distinguished by a Coordinate Bench of this Tribunal in OA No.1536/2011 and only after considering the orders of the Court were the directions in that case OA issued. For facility of ready reference, we reproduce below the relevant portions of the order of the Coordinate Bench in the said OA:
7.2 The respondents have relied upon the DOPT instructions vide the Office Memorandum dated 10.4.1989 (Para 6.4.4) to contend that even where promotions are made by way of consolidated select list for vacancies relating to earlier years, such promotions will have only prospective effect. They have further reinforced their stand by adverting to the Apex Courts decision in K.K. Vadheras case (supra) as reiterated by the Delhi High Court in Rajendra Roys case (supra) and Vijendra Singhs case (supra). In brief, this is to the effect that unless there exists a rule or a residual power, enabling retrospective promotions, the same cannot be claimed.
7.3 There can be no two views about the generally settled principle of law that as a thumb rule, the benefits of promotions can only be granted from the date such promotions take place rather than from the date of occurrence of vacancies. However, even in the judgments relied upon by the respondents, there is an implicit recognition of a situation under which deemed retrospective promotions may be justified. This has been stated to be an enabling `specific or a residual rule. However, an equally settled proposition of law is that where the statute or the rules are silent, the executive instructions legitimately fill in the gaps. It is here that the elaborate instructions issued by the DOPT about accurate assessment of vacancies i.e. both clear and anticipated, as well as convening of DPCs on schedule and at regular intervals well in advance, assume importance. As a logical corollary, a delay in holding the DPCs and preparing panels on schedule can only be acceptable in judicial review, if it is shown to be for bona fide and unavoidable reasons.
7.4 It is trite that a judgment must be read in its entirety. Reliance upon certain observations made in course of the judgment isolated from the factual context, may lead to unintended conclusions. Evoking the doctrine of circumstantial flexibility, we find that both the judgments of the Honble Delhi High Court being relied upon by the respondents, are distinguishable from the present set of OAs in critical facts. In Rajendra Roys case (supra), the basic issue being considered by the Honble High Court was whether the respondents, who had superannuated before consideration of the case by the DPC, could be granted promotion on a notional basis from a retrospective date. Even in the batch petitions in Vijendra Singhs case (supra), the contentious issue was the grant of pay from the date of retrospective promotion, which was rejected by the Honble High Court. The other aspect regarding reckoning the period as qualifying service for determination of eligibility for further promotions had not been adjudicated at all.
7.5 On the other hand, of the judicial pronouncements placed reliance on behalf of the applicants, the decision of the Jabalpur Bench of CAT in NR Banerjees case (supra) and further the judgment of the Apex Court in the same matter, are found to be particularly relevant in the present OAs. This is for the reason that even at the Tribunals level, the DOPT consolidated instructions on the subject of holding of DPC and related matters as per the OM 10.4.1989, had come in for consideration. The operational directions, which inter alia included grant of promotion from retrospective effect, were after being seized with the provisions of this OM.
As elaborated above, the Honble Apex Court, while upholding the decision of the Tribunal in NR Banerjees case, had specifically dwelt on this aspect, and after considering the law from varied aspects, had held the preparation and finalization of the yearly panels as a mandatory requirement.
We also find the decision of the coordinate Bench of the Tribunal in M.A. Khans case (in which one of us, the Chairman was also a member) as relevant. Not only the DOPT instructions vide the OM 10.4.1989 were considered but also the protestations of delay on the part of the respondents due to administrative reasons were not accepted at face value; instead they were subjected to a stringent judicial scrutiny. In the factual gamut of the case, directions for considering the promotion of the applicant retrospectively had been issued.
8. To conclude, after considering the pros and cons, the balance tilts in favour of the applicants. This is a case where despite availability of vacancies and of the eligible candidates, the DPCs were not held in time, and in fact, were delayed for a long period of four years. The reasons given by the respondents for not convening the DPCs are not found to be justified when put under judicial scrutiny. If as per their own averment, the DPCs could not be held despite the dates being fixed repeatedly as the necessary procedural requisites like the ACRs, vigilance clearance, etc. could not be completed; such factors cannot be stated to be as `not attributable to the respondents or `beyond their control. Such unjustified delay is neither warranted as per the repeated instructions issued by the DOPT, nor has met judicial approval in various pronouncements by the Tribunal, the High Courts and the Apex Court (some of which have been cited in this case). The matter seems to be clinched by the notional promotions from an earlier date already having been given to two among the applicants.
Resultantly, the OA is disposed with directions to the respondents to consider the grant of regular promotions to the remaining 9 applicants also (other than the applicants No.1 and 3 of the OA No. 1563/2011) from the date of their respective ad hoc 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 vide the respondents Office Order dated 1.9.2011. Our directions are to be complied within a period of three months from the date of receipt of a copy of this order. There shall be no order as to costs.
45. In view of the above discussion and particularly in the context of the Apex Court Judgement in P.N.Premachandran (supra) and the order of the Coordinate Bench of this Tribunal in OA No.2364/2008 and OA No.1536/2011 (supra), the OA is partly allowed. The impugned notification dated 18.05.2006 is quashed and set aside. The respondents are directed to consider the request of the applicants herein by convening a review DPC to consider the promotion/induction of the applicants from the date when the vacancies arose in 2002-2003, and thereafter to pass appropriate follow up orders with regard to their seniority in Group `A. Action as above may be taken within a period of three months from the date of receipt of a copy of this order.
46. In the same terms, the other MA 1650/2011 and OA No.2661/2010 are also disposed of. No costs.
Registry is directed to keep a copy of this order in the other OA No.2661/2010.
(Shailendra Pandey) (V.K.Bali) Member (A) Chairman /nsnrsp/