Central Administrative Tribunal - Delhi
Suresh Gupta (Retired Danics) vs Uoi & Ors on 5 August, 2014
Central Administrative Tribunal Principal Bench OA No.604/2013 Reserved on: 06.02.2014 Pronounced on: 05.08.2014 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) Suresh Gupta (retired DANICS) S/o Shri Jai Narain Gupta, R/o E-21, East of Kailash, New Delhi-110065 -Applicant (Applicant in person) -V E R S U S- 1. UOI & Ors. Through the Secretary, Ministry of Home Affairs, North Block, New Delhi 2. Union Public Service Commission, Through its Chairman, Dholpur House, Shahjahan Road, New Delhi 3. Government of NCT of Delhi, Through its Chief Secretary, Delhi Sachivalaya, IP Estate, New Delhi -Respondents (By Advocate: Shri R.N. Singh) O R D E R By Dr. B.K. Sinha, Member (A):
The instant Original Application has been filed under section 19 of the Administrative Tribunals Act, 1985 against the action of the respondents in not giving the applicant the benefit of promotion to Junior Administrative Grade-I (JAG-I) of DANICS from due date of vacancy year 2009, instead giving the same w.e.f. 01.07.2011 vide the Notification dated 17.04.2012 (Annexure A-9). The applicant is further aggrieved by rejection of his representation dated 07.11.2012 vide impugned order dated 28.12.2012 of the respondents. The applicant has sought the following reliefs:-
(i) To quash the impugned letter No. 14046/43/2012-UTS.II dated 28.12.2012 of MHA, Government of India vide which the representation dated 07.11.2012 of the applicant has been rejected by the respondent.
(ii) To direct the respondents to treat the date of promotion of the applicant to JAG-I w.e.f. 01.01.2009 instead of 01.07.2011 in notification No.14016/23/2011-UTS.II dated 17.04.2012 of MHA, Govt. of India and pay all consequential benefits including arrears of pay and pensionary benefits accordingly.
(iii) To direct the respondents to pay interest of the applicant on arrears of consequential benefits of pay and pensionary benefits for the period of delay caused in giving such benefits.
(iv) To allow this OA with cost.
(v) Pass any further orders as this Honble Tribunal may deem fit and proper in the facts and circumstances of the case.
2. The facts of the case, very briefly stated, are that the applicant is a DANICS [Delhi, Andaman and Nicobar Islands Lakshadweep Civil Services] officer recruited on the basis of Civil Services Examination, 1986 [hereinafter referred to as CSE-1986] but allocated to 1988 batch. He The applicant was confirmed in the Service w.e.f. 02.05.1990 vide Notification dated 21.03.1995. He was appointed to Selection Grade on ad hoc basis vide order dated 02.04.1997 and was regularized w.e.f. 02.05.1996 vide notification dated 30.06.1998. He was promoted to JAG-II of the Service on ad hoc basis on 18.10.2002 and regularized as such vide notification dated 21.2.2003. On 6.8.2003, the then DANICS Civil Service Rules, 1996 were substituted by the National Capital Territory of Delhi, Andaman & Nicobar Islands, Lakshwadeep, Daman & Diu and Dadra and Nagar Haveli Civil Service Rules, 2003 [hereinafter referred to as Rules 2003]. The Rules 2003 were further partially amended vide notification dated 1.10.2009 whereby sanctioned strength of the Service was increased to 472 by carrying out amendment to Schedule-1 of the Rules of 2003. The applicant was appointed to JAG-I of the Service on ad hoc basis vide order dated 27.12.2011 (page 77 Annexure A/8 of the paper book) and was subsequently regularized vide notification dated 17.4.2012 w.e.f. 01.07.2011 (page 81, A-9 Entry 66 of the paper book).
3. The case of the applicant is that under Rule 7(3) of the Rules of 2003, all vacancies in the Grade of JAG-I are to be filled from amongst the officers in the immediate respective lower grade with minimum qualifying service as specified in Schedule-III, that being, officers in JAG-II with minimum of 18 years approved service by seniority, subject to rejection of unfit as provided in Rule 7(4)(c) and Schedule-III of Rules of 2003. Rule 7(5) further provides that selection under sub-rule(4) shall be made on the basis of recommendations of the DPC. JAG-I acts as a feeder grade for induction into the IAS under the IAS (Appointment by Promotion) Rules, 1955 and, as such, both the appointment of JAG-I officers into IAS and the consequential vacancies arising in JAG-I in DANICS are interrelated. However, even where DPC for appointment/ induction into IAS is delayed, then the notification for appointment into IAS gets delayed. The JAG-I officers are appointed into IAS taking in view the vacancies available on 1st January of the select year. The applicant pleads that appointment to the IAS was attended by inordinate delay for the period 2008-2010. The Honble Supreme Court directed the Government in Writ Petition (Civil) bearing No.6/2010 filed by one ZU Siddiqui and Ors. to take appropriate steps for filling up vacancies within six months from the date of the order that being 25.2.2011. In spite of the Select List 2009 and Select List of 2010 for filing up the vacancies from JAG-I having been issued on 24.11.2011, it is the case of the applicant, that only 10% of the sanctioned strength of the cadre can be operated as JAG-I (Rule 4 of the Rules, 2003). Accordingly, as the sanctioned strength of Cadre was 472, 47 officers were entitled to be placed within JAG-I whereas only 26 officers from JAG-I were inducted into IAS against the vacancies of 2008, 2009 and 2010 respectively. Therefore, respondent No.1 directed the respondent No.3 to submit the records of the officers of JAG-II as per list enclosed for being considered for promotion to JAG-I of the service on regular basis for the vacancies pertaining to years 2004 to 2011. The name of the applicant is listed against the vacancies pertaining to the year 2009 at SI. No.1, just above one Ms. Poonam. The applicant submits that though he became eligible for promotion to JAG-I w.e.f. 1.1.2006 having completed 18 years of approved service, but as per Rule 4 of Rules, 2003, he could only be promoted against the vacancies pertaining to year 2009. The applicant also relies upon OM dated 14.12.2010 of DOPT, which provides that time frame stipulated in the model calendar for filling up the vacancies needs to be strictly adhered to and non-adherence thereto would result in fixing responsibility for the lapse. The respondents failed to abide by their own directives. Some of the affected officers, namely Sona Ram Kataria and ors., filed OA No.104/2012, while another officer Manjit Rai filed OA No. 183/2012. The Tribunal vide its common order dated 23.02.2012 disposed of both the afore OAs directing the respondents to hold a DPC for appointment to JAG-I and JAG-II within a specified period of time.
4. The applicant has taken several grounds in support of the OA. In the first place, applicant contends that his appointment to JAG-I was delayed due to inability of the respondents in holding DPC as per the directives of the DOPT vide OM dated 14.12.2010, for which the applicant cannot be penalized. Secondly, it is averred that since induction into IAS and promotion to JAG-I are interrelated, the respondents have clearly erred in clubbing all the vacancies of JAG-I, while induction into IAS is being made on the basis of the vacancies arising every year. In the third place, while the officers, who were inducted/appointed, are assigned seniority ranging from 6 to 8 years earlier to being inducted into select list, it is just and proper that the JAG-II officers should also be adjusted against the vacancies arising consequence upon JAG-I officers getting inducted into IAS. As such, the applicant is entitled to be promoted to JAG-I against consequential vacancies arising from appointment of 7 JAG-I DANICS Officers (SI. Nos. 2 to 8 of the select list of 2009) vide notification dated 24.11.2011.
5. The applicant has argued that practice of not appointing officers against such consequential vacancies arising in JAG-I is discriminatory and violative of Articles 14 and 16 of the Constitution. The applicant has further argued that though appointment of officers to JAG-I or for that matter, JAG-II has been termed as promotion, it is virtually an in situ promotion as no posts have been earmarked for JAG-I and there is no change in the responsibility involved. The applicant has relied upon the cases of Dr. Sahadeva Singh Vs. UOI & Ors. (W.P.(C) 5549/2007) decided 28.02.2012, Union of India & Another versus Hemraj Singh Chauhan & Others [2010 (4) SCC 290], Union of India versus Vipinchandra Hiralal Shah, 1996(6) SCC 721, and P.N. Premchandran Vs. State of Kerala, 2004(1) SCC 245, in support of his claim.
6. The respondents have filed a counter affidavit rebutting the claim of the applicant in the instant OA. It has been submitted that during the year 2011, there were 30 vacancies in JAG-I of DANICS out of which 3 were due to retirement of officers of JAG-I in 2011 and 27 vacancies were created because equal number of JAG-I officers were inducted into IAS for the select years 2007, 2008, 2009 & 2010 vide DOP&T Notifications dated 28.04.2011 and 24.11.2011. At the time, the screening committee was held in the year 2011, these officers were holding the post of JAG of DANICS and because of this the vacancies in JAG-I cannot be counted as per the Select List years of IAS. Promotions in DANICS are subject to DANICS Rules only. The respondents further contend that promotions from JAG-II to JAG-I are on the basis of the vacancies of the respective years and in this case FR 17 cannot be made applicable for grant of retrospective promotion. The respondents further submitted that the officers inducted into IAS from JAG-I get the seniority/batch according to the seniority of their service in the feeder grade, DANICS as per the IAS induction Rules, whereas the promotions in JAG-I DANICS are subject to DANICS Rules. The respondents submitted that the DPC held on 4.4.2012 recommended promotion of 91 JAG-II officers to JAG-I on the basis of vacancies w.e.f. 1996 to 2011 and accordingly a notification was issued on 17.4.2012. The respondents further stated that the DPC after assessing the suitability of each officer and number of vacancies in any year, had recommended year-wise panels for promotion from JAG-II to JAG-I in accordance with DANICS Rules. The respondents have further stated that in respect to para 1.1 & 1.2 of the OA, it is wrong to contend that the applicant was promoted to JAG-I w.e.f. 01.07.2012 and in fact, he was promoted to the said Grade w.e.f. 01.07.2011 vide Notification dated 17.04.2012. His representation dated 07.12.2012 was critically examined with reference to the Induction Rules and the competent authority had rejected the request for review of the effective date of promotion w.e.f. 01.07.2009 as the same would be illogical and devoid of any merit. The respondents further submitted that in respect of para 4.11 the applicant is trying to establish that promotion to JAG-I scale is mandatory to be granted on completion of 18 years approved service. It is submitted that in terms of Rule 4.1 of DANICS Rules, 2003 only 10% of the sanctioned strength can be operated in JAG-I. Thus the promotion to JAG-I scale is subject to availability of vacancy. Rule 7 cannot be read in isolation without referring the other rules of DANICS Rules, 2003. The respondents further submitted that induction into IAS and promotion to JAG-I are governed by different rules and process and cannot be intermingled. Delay in holding DPC for induction into IAS has taken place on account of unavoidable administrative reasons and the same cannot be made ground for grant of JAG-I scale from the year of vacancy. The respondents have further submitted that in respect of paragraph 4.23 of the OA, it is wrong to contend that officers, who were inducted into IAS against the vacancies of any year, were substantively holding the post of JAG-I in DANICS till their joining in IAS. Since the Notifications in respect of all these officers were issued in 2011 and they were physically holding the post of JAG-I in DANICS till 2011, the vacancy in JAG-I can be treated only from 2011. Thus, there was no vacancy available prior to 2011 because of the induction of these officers into IAS. Learned counsel appearing for the respondents, therefore, vehemently pleaded that the OA being devoid of merits, deserves to be dismissed.
7. The applicant has filed a rejoinder largely rebutting the submissions made in the counter affidavit filed by the respondents. It has been emphasized therein that since there is no physical duty-wise identified bifurcation between JAG-I and JAG-II posts in Part B of Schedule-I of Rules, 2003, the question of holding them physically does not arise. On this account, JAG-I is a non-functional scale. The applicant has also strongly emphasized that the occurrence of vacancy in JAG-I is incidental to the effective date of induction/appointment of officers to IAS and not from the date of notification of their induction into IAS and, therefore, the contention of the respondents that vacancy in JAG-I can be treated only from 2011 and not prior thereto, would be wrong. It is further averred that if the contention of the respondents that no vacancy would arise prior to 2011 due to induction of these officers into IAS is accepted, then there will be no logic to induct these officers from the year of vacancy. The applicant has further relied upon the case of R.K. Kapoor Vs. UOI vide WP(C) No.3992/2011 decided on 23.4.2012 by the Delhi High Court and submitted that though the elevation to JAG-I has been treated as promotion, it has the character of Non Functional Upgradation (NFU) and has additionally sought support from the OM dated 6.6.2000 placed at Annexure A-22. The applicant has placed certain additional documents including a notification dated 22.11.2012 allocating the seniority under Rule 3(3)(iii) of IAS (Regulations of Seniority), Rules, 1987 and the note of the DOPT reiterating the non-functional upgradation character of the promotion to JAG-I. The applicant has also placed on record DOPT FAQ dated 1.8.2012 clarifying that even retired employees are eligible for benefit of NFU.
8. Learned counsel for the parties, during the course of arguments, have adhered to their submissions and reiterated the above points. We have carefully examined the contents of the pleadings and such documents that have been adduced by the parties. We have also patiently listened to the arguments advanced by their respective counsel and on the basis thereof, we find that the following issues need to be decided in order to arrive at a specified conclusion of the instant dispute:-
Whether the promotion to JAG-II is a financial upgradation or promotion?
Whether induction to IAS of JAG-I officers has pull effect upon the JAG-II officers of DANICS?
Whether parity can be claimed by the officers promoted to JAG-I to the induction in IAS on the basis of Articles 14 and 16 of the Constitution?
Whether the delay in holding DPC for promotion would entitle the applicant to some relief?
What relief(s) can be granted to the applicant?
9. In so far as the first issue is concerned, we have to look at the nature and structure of the promotional avenues provided under Rules of 2003 as amended from time to time. Under Rule 2(j) of the Rules, 2003, the term duty post means any post included in Schedule-I. Composition of the Service with its classifications has been provided under Rule 3(3) as hereunder:-
(3) The posts in Junior Administrative Grade-I, Junior Administrative Grade-II and Selection Grade shall be Central Civil Services Group A posts and those in the Entry Grade shall be Central Civil Services Group B posts.
10. As per the amendment carried out vide notification dated 1.10.2009, the grades and sanctioned strength of the Service are as follows:-
Part A Grades and Sanctioned strength of the Service
(a) Grades of the service Pay Band (Revised) Scale of Pay (Revised) Grade Pay (Revised) (1) Junior Administrative Grade-I (Group A) PB-4 Rs.37,400-67,000 Rs.8700 (2) Junior Administrative Grade-II (Group A) PB-3 Rs.15,600-39,100 Rs.7600 (3) Selection Grade (Group A) PB-3 Rs.15,600-39,100 Rs.6600 PB2 (i)Rs.9300-34800 (on initial appointment) Rs.4800 PB-3 (ii) Rs.15,600-39,100 (on completion of four years approved service subject to vigilance and integrity clearance) Rs.5400
(b) Sanctioned strength No. of posts
1.
2.
3.
4.
5. Specific posts under the Government of the National Capital Territory of Delhi Specific posts under the Andaman and Nicobar Islands Administration Specific posts under the Lakshadweep Administration Specific posts under the Daman and Diu and Dadra and Nagar Haveli Administration Deputation , Leave and Training Reserves Total 309 24 16 16 109 472
(c) Reserves Nos. of posts
1.
2.
3. Deputation reserve at 20% of 363 Leave reserve at 5% of 363 Training reserve at 5% of 363 Total 73 18 18 109
11. Promotion basically includes two requisite ingredients: (i) change in upgradation of scales; and (ii) upgradation of responsibility. Where any of these ingredients is missing, it is not a case of promotion. It may be that a person, while holding a lien in his permanent post, may be asked to shoulder higher responsibility temporarily by either officiating or charge given under local arrangements, and in such case, the person is entitled to officiating allowance under FR-35 and not fixation of pay under provisions of FR-22 or FR-22(A) which involves appointment on deputation to an ex cadre post or a post on ad hoc basis. Here, non-functional upgradation is granted to the Government employee mainly with the intention of removing the effect of stagnation in a particular scale. Admittedly, barring the Entry Grade, which is equivalent to Group B post of the Central Civil Service, all other posts mentioned in para 10 of this order are Central Civil Services Group A posts. In organized Central Group A Service, there is non-functional selection grade in the pay scale of Rs.14300-18300, which is an intermediary scale between the pay scales corresponding to JAG (12000-16500) and SAG (Rs.18400-22400). In the non-functional selection grade, duties and responsibilities are the same as those of the next lower grade i.e. JAG. Such selection grade is given to a specified number of officers in the JAG under certain conditions which do not involve a change of command. Introduction of non-functional selection grade has been specifically recommended for the first time by Third Central Pay Commission in respect of various organized Engineering Services (besides Indian Economic Service, Indian Statistical Service and Indian Forest Service). The Commission was of the view that in such services, the number of posts in the higher grades was relatively less in terms of their total cadre strength and members of the Service holding JAG posts are liable to stagnate for this reason. While accepting this recommendation of the Pay Commission, the Government decided: (i) such selection grade may also be introduced in various Central Group A Services and (ii) the strength of the selection grade in each Service should be determined after a detailed review of the cadre structure, promotion prospects etc in that Service. A note of the Government of India (Annexure-B) has been filed by the applicant vide MA No. 1978/2013. In para 4.4 and 4.5 of this note, proposition relating to grant of NFSG has been clarified as under:-
4.4 The Pay Commission stipulated that the officers to be placed in the Selection Grade should have reached the maximum of the Junior Administrative Grade and remained there for 2 years. This stipulation constituted the main criterion for (a) the introduction of Selection Grade in a Service, (b) the determination of the size of such Grade and (c) the eligibility of officers to be placed in Selection Grade. IN essence, therefore, the non-functional selection grade is intended to mitigate the rigorous of stagnation which the officers in the JAG may be exposed to for want of adequate number of posts in the higher grades. In this sense it is not a distinct functional grade carrying a higher level of responsibilities than those associated with JAG but part of JAG itself, the scale of pay being an extension of JAG pay scale. In other words, it is tantamount to an extended pay scale for holders of JAG posts, the pay scale of Rs.12000-16500 being extended to Rs.18300 under certain conditions.
4.5. In general, appointment of officers to a functional grade is by Selection as it involves promotion to a higher level of responsibility. On the other hand, appointment to the Non-Functional Selection Grade is by seniority subject to fitness. This is so because the purpose of introducing a non-functional Selection Grade is to mitigate the hardships caused to officers due to stagnation and no change of command is involved. We also take note of the fact that in case of R.K. Kapoor (supra), the Honble Supreme Court has observed as follows:-
6. In our view, grant of NFSG though termed as a promotion, cannot be treated at par with promotion from one rank/position to another in the hierarchy of ranks/positions. Grant of such a non-functional benefit which is granted to an employee on account of his stagnating at the maximum of pay-scale, in which he is placed, is only a sort of monetary compensation to him on account of his stagnating at the maximum of the pay scale applicable to him.
12. From the above, it clearly emerges that JAG-I is essentially non-functional benefit granted to the officers of due eligibility to remove stagnation after completion of 18 years of approved service. Normally financial upgradation in Schemes like ACP and MACP is granted on the completion of qualifying period and subject to fitness. However, as the number of posts in the instant case has been limited, this is not a purely non-functional upgradation, but also contains an element of promotion. At the same time, it is not a promotion either because there is no expansion in the responsibility involved. In view of R.K. Kapoors judgment wherein it has already been held that it is not a promotion but only monetary compensation because of stagnation at the maximum of the pay scale, it is to be answered in negative, i.e., it is only a financial upgradation.
13. Now we take up the second issue. It is an admitted position that officers in JAG-I constitute feeder cadre to IAS under IAS (Appointment by Promotion) Regulations, 1955. A select list is prepared under Regulation 7 of the Regulations 1955 on the basis of the vacancies determined under Rule 5(1). These vacancies are admittedly year-wise as occurring on 1st day of the year. Persons so drawn into the select list, therefore, vacate their spaces in JAG-I w.e.f. year of vacancy occurring. This no doubt renders a cause and effect relationship between the preparation of the select list and induction into JAG-I.
14. The applicant has cited the case of Sona Ram Kataria & Ors. Vs. MHA & Anr. (OA No. 104/2012) . In this case, the applicants sought holding of DPC and promotion to JAG-I from due dates with all consequential benefits, including arrears of pay. This case was disposed of by the coordinate Bench of this Tribunal with the directive that the DPC be held for promotion to JAG-I within one month after that of JAG-II, which reads as under:-
The claims of the applicants for JAG-II and JAG-I would be considered on merit and in accordance with law. In the event of being found fit, the promotion would be granted with effect from the due date i.e. the vacancy year for which found fit. Further, they would be granted benefits of notional pay fixation and seniority but not any arrears for the period anterior in time to the date of actual promotion. Though the respondents have argued that the decision in Sona Ram Kataria (supra) is inapplicable to the present OA on account of basic difference in facts, however, upon perusal of the order, we find that the afore decision would be applicable because the case was filed by DANICS officers and the issue involved therein was convening of the DPC for promotion to JAG-II and JAG-I. We further take note that the order was not a random order and was rather a considered one. Thus, we conclude the second issue by holding that induction to IAS of JAG-I officers has definitely pull effect upon the officers lower down for promotion to JAG-I and JAG-II on account of vacancies created.
15. We also find that the applicant has submitted a list of officers included in the select list, perusal of which justifies his assertions that he was to be considered against vacancies created for the year 2009 in JAG-I. The issue stands accordingly answered.
16. In so far as issue No.3 is concerned, it is to be noted that while promotion to JAG-I is carried out under provisions of DANICS Rules 2003, induction into IAS takes place under IAS (Appointment by promotion) Regulations, 1955. It stands well admitted that officers inducted into IAS are assigned seniority against the vacancies arising from that particular year. Subsequently, their seniority is determined under IAS (Regulations of Seniority), Rules, 1987. The mode of determination of seniority is contained in Rule 3 of Rules, 1987. We find that on one hand, the seniority in IAS is being assigned from a good 7 to 8 years or even more back from the year for which the DPC was held. On the other hand, the DANICS officers are being inducted into JAG-1 only from the year in which DPC was held. No doubt, this system looks prima facie iniquitous and it is on this ground that the applicant has sought to invoke the provisions of Articles 14 and 16 of the Constitution. However, having said so, we find that though locked in cause-and-effect relationship, two systems are governed by separate enactments/laws and are different. However, to make one discriminatory or violative of the other is not a fair proposition because that is the way systems have been defined. We cannot seek equity amongst two, as they are independent systems. Hence, we do not find that the action of the respondents is discriminatory and violative of Articles 14 and 16 of the Constitution on this count. The issue is answered accordingly.
17. Now we take up the issue nos. 4 & 5 together being identical in nature. In this regard, it is a well established principle of law that promotion becomes due only from the date on which it is granted and it cannot be claimed retrospectively. However, there are certain mitigating circumstances to this. The applicant has relied upon the case of P.N. Premchandran Vs. State of Kerala (supra), wherein the Honble Supreme Court has held as under:-
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.
18. In the case of Union of India & Another versus Hemraj Singh Chauhan & Others (supra), the Honble Supreme Court has held that right to be considered for promotion is inalienable:-
38. It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution.
19. In the case of Union of India versus Vipinchandra Hiralal Shah (supra), the Honble Supreme Court upheld the judgment of the Tribunal that while making appointment to the IAS under Regulations 1955, clubbing of vacancies is not permissible and the select list has to be prepared by selection committee for each year. However, this is a case of promotion to the IAS and we have already held while determining issue No. 3 that since two sets of appointment/promotion are made under different rules, no parity can be sought. Nevertheless, we have already held that case of Sona Ram Kataria (supra) is very much applicable to the facts of the instant case.
20. In view of the above facts discussed and having considered the matter in respect of issues framed above, we are satisfied to arrive at a conclusion that though one to one parity cannot be sought straightaway by the applicant with induction of officers from JAG-I of the DANICS into IAS, yet the fact remains that the promotion from JAG-II to JAG-I is partly in nature of NFSG and it is not a full-fledged promotion. Therefore, it tends to attract some of the provisions of NFU, including that the same is granted from the year it becomes due.
21. However, at the same time, we are acutely conscious of the fact that a comparison is being sought to be drawn between two different streams of service law. Nowhere has the applicant challenged the provisions of Rules 4, 7 and 9 of DANICS Rules, 2003 for that matter. At their own, the rules stand in their place and there is no fault that we are able to perceive in them. It is, when compared with the IAS (Appointment by Promotion) Regulations, 1955 that these dissimilarities become apparent. We are guided by the fact that the posts in JAG-I continue to be occupied till the date the notification is made inducting the incumbent into IAS or till the date of his retirement or his resignation, as the case might be. It is well established that promotion cannot be demanded from the date of vacancy.
22. It is true that the Rule 3(3) (iii) of the IAS (Regulation of Seniority) Rules, 1987 provides for grant of seniority anterior to the date of appointment. The same is not provided in the DANICS Rules, 2003. Therefore, though locked in a cause-and-effect relationship, no benefit of filling up the vacancy from the date when it occurs in the IAS can be extended to the DANICS officer. Another point that influences us is that it is axiomatically accepted principle that appointment does not take place from the date of vacancy occurring, but rather from the date of the appointment. In the case of State of Uttar Pradesh & Ors. Vs. Ashok Kumar Srivastava & Anr., Civil Appeal No. 6967 OF 2013 (Arising out of SLP (C) No. 31481 of 2010), the issue was that the respondents sought seniority from the date when the vacancy had arisen, instead of the date when promotion had been given. The Honble High Court, relying upon a three-Judge Bench decision in Keshav Chandra Joshi and Others Vs. Union of India and Others, 1992 Suppl.(1) SCC 272, had granted seniority relating back to the date of arising of the vacancy. The Honble High Court had also distinguished the same from the case of Nirmal Chandra Sinha Vs. Union of India, (2009)14 SCC 29 and had found the same discriminatory as others had been granted seniority on the same basis. The Honble Supreme Court held as under:-
15. Learned senior counsel for the appellants has drawn inspiration from the recent authority in Pawan Pratap Singh and others v. Reevan Singh and others, where the Court after referring to earlier authorities in the field has culled out certain principles out of which the following being the relevant are reproduced below:
(ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.
Xxx xxx xxx
(iv) 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. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.
6. In view of the aforesaid enunciation of law, the irresistible conclusion is that the claim of the first respondent for conferment of retrospective seniority is absolutely untenable and the High Court has fallen into error by granting him the said benefit and accordingly the impugned order deserves to be lancinated and we so do.
23. This decision is in accordance with cases of Nirmal Chandra Sinha (supra), Suraj Parkash Gupta & Ors. Vs. State of J&K, (2000)7 SCC 561 and Smitha Johny Vs. Josny Varghese and Ors., (2010)1SCC 414 etc..
24. From the above citations, it clearly emerges that what the applicant seeks is against the established principle of law as has been propounded by the superior courts from time to time.
25. Now we come to the last issue as to what relief can be granted to the applicant. In view of the issues debated above, it clearly emerges that appointment cannot be sought from the date of vacancy, but is only admissible from the date it has been granted, unless otherwise provided in the rules. In the instant case, we have seen that there is no provision akin to IAS (Regulations of Seniority), Rules, 1987. Therefore, we have no option, except to dismiss the OA being devoid of substance, Ordered accordingly. Parties shall bear their own costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /lg/