Central Administrative Tribunal - Delhi
Presently Working As Senior ... vs Union Of India on 22 March, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.2480 of 2010
New Delhi this the 22nd day of March, 2012
Honble Shri Shailendra Pandey Member (A)
Honble Dr. Dharam Paul Sharma, Member (J)
Suresh Chand Meena
Aged about 41 years
S/o Shri Bhairoo Lal Meena,
R/o A-4, Sector-5, Gandhi Nagar,
Chittorgarh (Rajasthan)
Presently working as Senior Horticultural Assistant,
Chittorgarh Fort, Rajasthan Applicant
(By Advocate: Shri S.K.Gupta)
VERSUS
Union of India
through Secretary
Ministry of Culture,
Shastri Bhawan
New Delhi.
Director General,
Archaeological Survey of India,
Janpath, New Delhi.
Director (Administration),
Archaeological Survey of India,
Janpath, New Delhi.
Shri Naresh Kumar,
Senior Horticultural Assistant,
Humayuns Tomb, New Delhi
5. Shri R.Y. Sharma
6. Shri V.K.Gaur
7.Shri Prashanjit Ghosh
8. Shri P.K.Chaudhary
(Service of Respondents. No.5 to 8 may be effected through Respondent No.3.)
Respondents
(By Advocate: Shri Ajesh Luthra and Ms. Rekha Palli)
O R D E R
Dr. Dharam Paul Sharma, Member (J) The applicant, a Senior Horticultural Assistant in the Office of Respondent-Archaeological Survey of India and posted in Chittorgarh, Rajasthan has filed this application under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:-
i) to quash and set aside the impugned orders dated 20.10.2009 (Annexure A-1), seniority list dated 11.11.2009 (Annexure A-1/A) and the order dated 16.2.2010 (Annexure A-2) and direct the official respondents to place the Respondent No.4 below the applicant in the seniority list dated 11.11.2009 in terms of the order dated 25.8.2008 or alternatively, the respondents be directed to place the applicant at par with respondent no.4 i.e. consider the case of the applicant for promotion to the post of Senior Horticultural Assistant w.e.f. 26.12.2000 and if the applicant is found fit, he may be promoted with all consequential benefits like salary, seniority etc;
ii) to pass such other and further order as deemed fit and proper.
2. The applicant belongs to Scheduled Tribe community. He was initially recruited as Horticultural Assistant Grade-I and joined the post on 09.07.1993. Respondent No.4, Shri Naresh Chand, belongs to Scheduled Caste and joined the post of Horticultural Assistant Grade -1 by direct recruitment on 26.12.1995. In the seniority list of the cadre of Horticultural Assistant Grade-I as on 01.05.2002, a copy of which is as at Annexure A A-3, the names of applicant and Respondent No.4 appeared at Serial Nos.6 and 7 respectively. The next higher post is that of Senior Horticultural Assistant, which is to be filled up by promotion up to 100% from among Horticultural Assistants Grade-I. The cadre strength of Senior Horticultural Assistant is 8. There was a Departmental Promotion Committee (hereinafter referred to as DPC) meeting held on 13.2.1998, the minutes of which reveal that the three incumbents were found fit against the vacancies which had arisen on yearly basis and Shri K.K.Thakur was promoted against the vacancy of 1995, Shri P.P.Rao was promoted against the vacancy of 1996 and Shri M.A.H. Mantri was promoted against the vacancy of the year, 1997. It is relevant to note in this regard that as per the Roster Register, one post was reserved for Scheduled Caste and was required to be carried forward under the rules. Contrary to this, Shri M.A.H. Mantri was shown to have been promoted against the post meant for Scheduled Caste which ought to have been carried forward and to be filled up in the succeeding years upon availability of the eligible Scheduled Caste candidate. The next DPC was held on 23.11.2002 in which Respondent No.4 was promoted against the Scheduled Caste vacancy. The applicant herein felt aggrieved as he was having a right to be promoted against 14th vacancy reserved for Scheduled Tribe as per the L. Shape Roster. Thereupon, the applicant filed OA No.343/2003 in this Tribunal which was decided on 22.9.2003 holding the applicant entitled to get 14th vacancy and the respondents were directed to hold a review DPC. The respondent No.4 was a party to the aforesaid OA along with the other respondents. Accordingly, the applicant was also promoted to the post of Senior Horticultural Assistant and placed below the Respondent No.4 by reverting Shri K.N.Gaur vide Office Order dated 03.02.2004 (Annexure A-9). The applicant, however, felt aggrieved for the reason he had not been given promotion to the post of Senior Horticultural Assistant from the due date. Accordingly, he represented to the Respondents requesting for his promotion with retrospective effect from 08.01.2003 and also placing him in the seniority list above Respondent No.4. Thereupon the seniority of the applicant was refixed vide Order dated 25.08.2008 and he was placed above Respondent No.4 (Annexure A-11. About a year later, the applicant learnt that respondent No.4 has been promoted as Senior Horticultural Assistant w.e.f. 26.12.2000 vide Office Order dated 20.10.2009 as at Annexure A-1 and consequently, the name of Shri Naresh Chand, Senior Horticultural Assistant had been placed above the name of Shri M.A. H. Mantri, Senior Horticulture Assistant in the seniority list as on 15.11.2000 and Shri M.A.H. Mantri had notionally been reverted.
3. The applicants grievance is that the question of promotion of Respondent No.4 in the cadre of Senior Horticultural Assistant was settled in the month of January, 2003, the same being not objected to by Respondent No.4. The applicant contends that in terms of the Govt. of Indias instructions dated 3.3.2008, a copy of which is as at Annexure A-13, all the promotions even if made on the basis of year-wise vacancies, the promotions would be prospective. The applicant has also submitted that the point meant for Scheduled Caste had already been exhausted by the respondents when Shri H.P.Verma was promoted and, therefore, there was no other point prior to 14th vacancy which could have been given to Respondent No.4. It has further been contended by the applicant that Respondent No.4, being junior to the applicant in the feeder cadre, could not be placed over and above the applicant. The learned counsel for the applicant referred to the case of State of Uttranchal & Anr. Vs. Dinesh Kumar Sharma (2007) 1 SCC 683), wherein it has, inter alia, been observed that when a person appointed on promotion would not get his seniority of any earlier year but should get the seniority of the year in which his/her appointment was made. Thus, it has been held that the respondent could not claim promotion from the date of occurrence of the vacancy in 1995-96 but could only get promotion and seniority from the time he has been substantively appointed i.e. from 1999. Another case on which reliance has been placed is UOI & Ors. Vs. Vijender Singh & Ors. 176 (2011) Delhi Law Times 247 (DB) in support of his contention that service jurisprudence does not recognize jurisprudential concept of deemed retrospective promotion and no person can claim a right to be promoted from the date when vacancy accrued and he must take promotion with its benefits from the date of actual promotion. The aforesaid two cases have been relied upon by the Honble Delhi High Court in the case namely, Union of India Vs. Sh. Rajendra Kumar (W.P. (Civil) No.2110/2010, decided on 01.03.2011).
4. The applicants claim as aforesaid is controverted by the official respondents No.1 to 3 in their counter reply. The respondents have, inter alia, submitted that the DPC held on 23.11.2002 considered several candidates in which the applicant and Respondent No.4 were also considered and the five candidates were recommended for promotion to the post of Senior Horticultural Assistant in which the name of Respondent No.4 was also there. It was further submitted that as per the Tribunals Order dated 22.09.2003, a review DPC was convened which had considered the name of the applicant as a ST candidate and recommended him for promotion to the post of Senior Horticultural Assistant by Order dated 3.2.2004. It has also been submitted that a fresh seniority list was prepared on the recommendation of the review DPC in which Respondent No.4 was promoted against the SC vacancy for the year 2000. The review DPC was of the view that the Scheduled Caste vacancy during the year 1998s DPC was not carried forward against which Respondent No.4 could have been promoted in 2000 when he had completed five years of regular service in the feeder cadre. One Shri M.A.H. Mantri, who was promoted to the post of Senior Horticultural Assistant on the basis of recommendations of DPC held on 13.12.1998, was notionally reverted and the Respondent No.4 was placed above him. The review DPC after assessing the ACRs of Respondent No.4 found him fit for promotion to the post of Senior Horticultural Assistant against the SC vacancy for the year 2000 along with all consequential benefits w.e.f. 26.12.2000 and also refixed his seniority from that date.
5. The applicants claim is also opposed by Respondent No.4 in his reply. It has been pointed out by Respondent No.4 that in the year 1998 i.e. on 13.2.1998, a DPC was held for filing up of three vacant posts of Senior Horticultural Assistant and since the answering Respondent No.4 had completed only about three years of service, he was not considered for promotion to the said post although as per post based reservation roster, one post (point No.7 of the roster) was meant to be filled up by an SC candidate. It has further been submitted that the 7th point in the roster was meant to be filled up by a SC candidate and point for a ST candidate to which the applicant belongs was the sixth replacement i.e. 14th point. It has further been submitted by Respondent No.4 that as per OM dated 2.7.1997 regarding post based roster replacing vacancy based rosters which came into being pursuant to the Honble Supreme Courts direction in R.K.Sabharwals case, the existing appointments are required to be necessarily adjusted. Thus, pursuant to the same, five existing appointments to the post of Senior Horticultural Assistant, as existing on introduction of post based roster were required to be adjusted for the purposes of initial operation of post based roster. Even there remained a backlog for SC vacancy which was also noted by this Tribunal in its Order dated 22.9.2003 in OA No.343/2003. It has been pointed out that the respondent No.4 did not contest the claim of the applicant in the aforesaid OA for grant of 14th point in the roster by way of promotion as there was no conflict on this point with Respondent No.4. Nonetheless, the fact remains as to whether the Respondent No.4 was entitled to be promoted as against the 7th point in the post based roster on the same analogy as the applicant was entitled to be promoted against the 14th point being a ST candidate, which is neither being objected to by the official respondents nor by the applicant. The respondent No.4 having been appointed against 7th point, obviously be senior to the applicant, who was promoted against the SC post being 14th point in the post based roster. It has further been submitted by Respondent No.4 that though Shri H,.P.Verma was a SC candidate but he was appointed as an unreserved candidate to the post of Horticultural Assistant Grade-I in the year 1977 and was promoted to the post of Senior Horticultural Assistant as an unreserved candidate in the year 1986. In the seniority list of Senior Horticultural Assistant up to 28.2.1991, Shri H.P.Verma was rightly shown as unreserved candidate. Furthermore, on the date of replacement of vacancy based roaster to post based roster, Shri H.P.Verma had already stood promoted to the post of Assistant Superintending Horticultural in the year 1995. Thus, he was not in the cadre strength of Senior Horticultural Assistant on the relevant date and, therefore, he could not have been counted to have consumed the 7th point of post based roster in the cadre of Senior Horticultural Assistant. Furthermore, Respondent No.4 stood actually promoted much prior to the applicants promotion and, therefore, the applicants claim for seniority over and above the answering Respondent No.4 is not entertainable on any count including the instructions cited by the applicant. As a matter of fact, the applicant was promoted prospectively vide Order dated 3.2.2004 whereas the Respondent No.4 was promoted vide order dated 08.01.2003. The learned counsel for Respondent No.4 submitted that retrospective promotion is permissible in exceptional circumstances when there is some legal impediment in making promotion, like intervention by the Court as it has been held in Amarjeet Singh & Others Vs. Devi Ratan & Others (2010) 1 SCC 417. Reliance has also been placed on this by Shri Ajesh Luthra appearing on behalf of Respondent No.4 in support of his contention that one who has been promoted from an earlier date is bound to be senior than the person who has been promoted from a later date. The learned counsel Shri Luthra referred to Para 34 of the judgment in this regard. Another case on which reliance has been placed by Shri Luthra is M.A.Khan Vs. Union of India & Another (OA No.2364/2008 decided by this Tribunal in November, 2009). In this case, the applicant deserved consideration for his promotion in the year 2003 but he has been promoted in the year 2007. It has been held in this case by this Tribunal that the respondents could have promoted him notionally but his consideration for promotion had to be from the year 2003 onwards.
6. The applicant has filed rejoinders to the reply of official respondents No.1to 3 as well as the private Respondent No.4. It has thus been contended by the applicant that the reversion of Shri M.A.H. Mantri is against the rules and instructions. In law, no retrospective promotion can be granted. Since Shri H.P.Verma had already consumed Scheduled Caste point, the Respondent No.4 is not entitled to that point. In case, the vacancy meant for Scheduled Caste was not carried forward, the same could not be carried forward by the review DPC. The review DPC cannot change the character of original DPC. It has further been submitted that there was no vacancy in 1998 for Scheduled Caste which could have been carried forward. No retrospective promotion could be granted after nine years and it is not open to unsettle the position which has already been settled between the parties. It was also submitted that Shri H.P.Verma was not appointed against unreserved vacancy and the respondents be directed to produce the records from which correct position can be ascertained in this regard.
7. At the hearing, the learned counsel for the applicant primarily confined his submissions on two points; (i) the promotion can not be made retrospectively, and (ii) there was no DPC held in the year 2000 and, therefore, the question of holding a review DPC with regard to that year would not arise. The learned counsel, however, did not press his contention that the Respondent No.4 being junior to the applicant in the feeder cadre, cannot be accorded deemed seniority in the promoted post.
8. The defence is led mainly by Respondent No.4 over whom the applicant is claiming seniority. The learned counsel for Respondent No.4 Shri Ajesh Luthra strongly opposed the application being not maintainable on the ground that applicant is not an aggrieved person and, therefore, cannot file this application. It is pointed out that the applicants case is that Respondent No.4 having been actually promoted on 8.1.2003 cannot be promoted by holding a review DPC w.e.f. 26.12.2000. Nevertheless, the fact remains that Respondent No.4 has been actually promoted vide Order dated 8.1.2003 pursuant to the DPC held in 2002. As against this, as a matter of fact, the applicant has been actually promoted vide Order dated 3.2.2004. Furthermore, Respondent No.4 has been appointed against 7th point in the post based roster as against 14th point Roster on which the applicant has been appointed and the Respondent No.4 is bound to be senior to the applicant. That being so, it does not make any material difference to the applicant as to whether Respondent No.4 was given promotion from 8.1.2003 or 26.12.2000 as in both the eventualities Respondent No.4 would continue to be senior to the applicant. It has further been submitted that a perusal of the minutes of DPC held on 13.2.1998, a copy of which has been filed by the applicant himself along with his application as Annexure A-5, reveals that out of three posts which were placed for perusal of the DPC, one post was reserved for Scheduled Caste and the remaining two were unreserved. Respondent No.4 was admittedly seniormost SC candidate. However, he had not completed the requisite five years of qualifying service. He had only three years of qualifying service. As such, there was no Horticultural Assistant Grade-I belonging to Scheduled Caste community available in the zone of consideration, the post, therefore, could not be filled up and was required to be carried forward to the next recruitment year for three years before this could be dereserved and that too by formal order. The DPC expressed its opinion but it erred in recommending the name of Shri M.A.H.Mantri against the post of Senior Horticultural Assistant which was not permissible under law. Had the post been carried forward as per the relevant rules, Respondent No.4 would have been considered for promotion against this post in the year 2000 as he had acquired the requisite qualifying service by that time. The official respondents realized the error and proceeded to rectify the same by giving benefit of promotion to Respondent No.4 from due date on account of error that was unwittingly committed by them in the case of Respondent No.4. The review DPC met on 9.10.2009 as a sequel to the error committed by the DPC held on 13.2.1998 whereby a general candidate was erroneously promoted against the reserved post and later rectified its error by notionally reverting the general candidate Shri M.A.H.Mantri and promoting the Respondent No.4 being rightful eligible SC candidate from the due date. What is the point in holding a review DPC if the benefit to which one is otherwise entitled in law is denied to him for the reason that such a promotion can be given with prospective effect only and not from the due date as it cannot have retrospective effect. The very purpose of holding review DPC would be negated. As a matter of fact, the administrative instructions on which much reliance has been placed by the applicant, do not contemplate such cases as is the case of Respondent No.4. It has further been submitted by the learned counsel for Respondent No.4 that the applicant himself has sought promotion with retrospective effect and he has accordingly been accorded seniority when his name was placed over Respondent No.4. However, when similar error was noted in the case of Respondents No.4 and the same was sought to be rectified, it is not open to him to object the same. It has thus been strongly contended that the impugned action of the respondents is perfectly legal and the same is not open to any objection.
9. Adopting the submissions made by the Respondent No.4 as aforesaid, the learned counsel appearing on behalf of official respondents submitted that the vacancy as on 2.4.1998 against backlog vacancy of Scheduled Caste is neither carried forward to the next year nor was dereserved by the DPC and at the same time this vacancy of reserved category according to roster point was filled up by the general candidate. This was a gross mistake on the part of the official respondents and needed rectification. Accordingly, the respondents proceeded to rectify the error by holding a review DPC whereby the general candidate wrongly promoted against a reserved vacancy was reverted and the post was allotted to the eligible person from due date. Respondent No.4 could not be illegitimately penalized for no fault of his own but for the fault of respondents which the respondents realized, analyzed and rectified. In any case, the applicant having been promoted after promotion of Respondent No.4 and that too, against Point No.14 as against Point No.7 on which the Respondent No.4 was promoted, he would, in any case, be junior to Respondent No.4 and, therefore, the applicants claim does not have any force.
10. We have given our careful consideration to the submissions made by the both the parties. We have also carefully perused the records of the case.
11. The point that needs to be looked into first is as to whether Respondent No.4 has been appointed against Point No.7 reserved for Scheduled Caste candidate in the post based roster. It is relevant to note in this regard that the applicant had admittedly been promoted against Point No.14 reserved for Scheduled Tribe candidate in the roster. The implication flowing from the aforesaid point is obvious. If Respondent No.4 had been promoted against Point No.7 in the roster, he would be certainly senior to the applicant who had been promoted against point No.14 in the roster. As against this, the applicants contention is that Point No.7 has already been consumed when one Shri H.P.Verma had been promoted against this point earlier. No other point prior to 14th vacancy can be given to Respondent No.4.
12. The applicant has, however, not adduced any evidence in support of his contention. In his rejoinder to the reply filed by Respondent No.4 that the applicant seeks production of record where from the veracity of this fact can be ascertained. However, Respondent No.4 has obtained material information in this regard under RTI Act, a copy of which is placed at Annexure X-2 (Colly)to the reply of Respondent No.4. This includes the seniority list of Horticultural Assistant Grade-I as on 01.04.1983; the minutes of the DPC held on 30.9.1986 wherein Shri H.P. Verma among others was considered for promotion to the post of Senior Horticultural Assistant; Office Order dated 31.10.1986 with regard to promotion of Shri H.P.Verma and seniority list of Senior Horticultural Assistants as on 28.2.1991 in which the name of Shri H.P.Verma is at Serial No.8 meant for unreserved candidate. From a perusal of these documents, it is clear that Shri H.P.Verma did not occupy a slot reserved for Scheduled Caste category either at the level of Horticultural Assistant Grade-I or the Senior Horticultural Assistant. In view of the material that has been brought on record on this point, we do not find any substance in the applicants contention that Point no.7 has already been consumed by Shri H.P.Verma.
13. We may now deal with the question of review DPC. The genesis of this can be traced to the meeting of DPC held on 13.2.1998. The minutes of this meeting are annexed by the applicant himself to this application as Annexure A-5. It would be expedient to refer the relevant extracts of this meeting as follows:-
The Departmental promotion Committee was informed that three posts of Senior Horticultural Assistant are lying vacant.
It was informed that as per Recruitment Rules, the post is to be filled up by promotion failing which by Direct Recruitment. Horticultural Assistant Grade-I with five years service in the grade rendered after appointment thereto on a regular basis are eligible for promotion to the post of senior Horticultural Assistant. This is a selection post and to be filled up on the basis of merit-cum-seniority.
As per Roster Register one post is reserved for Scheduled Caste and remaining two are unreserved. Since there is no Horticultural Assistant Grade-I belonging to Scheduled Caste Community available in the zone of consideration, the post may be carried forward to the next Recruitment year.
14. From the aforesaid it is clear that out of three posts one was reserved for Scheduled Caste candidate and the remaining two were unreserved. The DPC had also considered the character rolls of the eligible officers and based upon such consideration, recommended the following names in the order of merit for promotion to the post of Senior Horticultural Assistant:-
S/Shri
1. K.K.Thakur For the year, 1995
2. P.P.Rao For the year, 1996
3. M.A.H.Mantri For the year, 1997 None of these three candidates belongs to Scheduled Caste category. As such, the DPC should have recommended the names of two Officers from General category for promotion to two unreserved posts. As regards the third post meant for reserved for Scheduled Caste was required to be carried forward to next year. This should have been done in the next three years and had it been done and yet no unreserved candidate was available then it was open to the department to dereserve the post in consultation with the DOP&T. This is the error which is sought to be rectified by the official respondents by holding review DPC and reverting one Shri M.A.H.Mantri notionally for the purpose. If a Scheduled Caste candidate became available during the intervening period of three years then he would be required to be considered in his own turn. From the record of the case, it is further gathered that Respondent No.4 though happened to be seniormost Horticultural Assistant Grade I belonging to scheduled caste category was not eligible for consideration for promotion to the post of Senior Horticultural Assistant for the reason of not having completed five years of service in the feeder cadre. It is further seen from the records that respondent No.4 acquired eligibility for consideration for promotion to the post of Senior Horticultural Assistant in 2000 upon completion of five years of qualifying service. Had the post been duly carried forward in terms of the recommendations by the DPC held on 13.2.1998 itself, the respondent No.4 would have been considered against this post for promotion in the year 2000. On a perusal of the records of the case, it is seen that once the discrepancy was detected by the official respondents, they proceeded to rectify the error referred to above by holding a review DPC. It is relevant to note the following remarks made by the Joint Director (A/Cs) on 15.09.2009 in the file pertaining to the promotion to the post of Senior Horticultural Assistant in Archaeological Survey of India, (File o.12-4/2002-Admn-I):-
In this connection, it is pointed out that the vacancy as on 2.4.1998 against backlog vacancy of the S/C candidate has neither being carried forward to the next year (maximum period 3 years) nor got de-reserved from DoPT as per the existing rules/guidelines of DoPT. But at the same time this vacancy of reserved category according to the roster point has been filled up by the general category. This is a gross mistake on the part of the administration which may be resulted into litigation.
In view of the above facts, it is proposed that we may constitute a review DPC to consider the case and findings may be submitted to DG, ASI for further orders/approval.
15. It would also be relevant to note that an explanatory memorandum for Review Departmental Promotion Committee Group B non-gazetted to consider promotion of Shri Naresh Chand to the post of Senior Horticulture Assistant, in the pay scale of PB-2 Rs.9300-34800/- plus Grade Pay Rs.4200/- had been issued which reads as follows:-
There are total 8 sanctioned posts of Senior Horticultural Assistant in the Archaeological Survey of India pay scale of PB-2 Rs.9300-34800/- Plus Grade Pay Rs.4200/-.
As per existing recruitment rules, the post of Senior Horticultural Assistant is to be filled up by promotion from Horticultural Assistant Grade-I with 5 years regular service rendered after appointment thereto on a regular basis.
Shri Naresh Chand (SC) was appointed to the post of Horticultural Assistant Grade-I through Staff Selection Commission on Direct recruitment basis and joined in the Archaeological Survey of India on 26.12.1995.
A Departmental Promotion Committee meeting was held for promotion of Horticultural Assistant Grade-I for filling up of 3 vacant posts of Senior Horticultural Assistant in the year 1998 i.e. 13.02.1998, at that time Shri Naresh Chand, Horticultural Assistant Grade-I had not completed 5 years regular service as Horticultural Assistant Grade-I. He had completed about 2 years and 2 months of regular service only, as Horticultural Assistant Grade-I he was not considered for promotion to the post of Senior Horticultural Assistant against SC reserved point.
In compliance of the DOP &T O.M. at the time initial operation of roster, there were five incumbents in position as Senior Horticultural Assistant and as such they were adjusted from point 1 to 5. After some time three more vacancies were become available for filing up and point No.6 to 8 which were required to be filled and as per model reservation roster point No.7 earmarked to SC category candidate. Since there was no SC candidate eligible for promotion (as the incumbent did not complete the minimum years of service0 as per the recruitment rules. Since the SC point could not be filled up earlier, there was a backlog of one SC category candidate.
A DPC was again held for promotion of Horticultural Assistant Grade-I to the post of Senior Horticultural Assistant on 23.11.2002. The DPC recommended 5 officials for promotion to the post of Senior Horticultural Assistant. Shri Naresh Chand was also considered along with other incumbents against SC quota, and also recommended 2 officials to be kept in reserved panel for resultant vacancies. Before the orders for promotion could be issued, one more vacancy occurred due to death of the incumbents of the post and the person kept in the panel was also promoted along with other candidates Shri Naresh Chand was promoted vide orders dated 08.01.2003, one SC candidate (backlog) and rest five from unreserved category (from point No.9 to 13 of the model roster of DOP &T were promoted.
We have received a representation of Shri Naresh Chand requesting for promotion w.e.f. 13.2.1998. He had also stated that as per DOP &T O.M. No.36012/23/96-Estt.(Res.)-Vol.II dated 3.10.2000, a person from reserved category completed even half of the qualifying service, can be considered by the DPC for promotion. The matter was referred to DOP &T. T Estt. (Res.) Section has stated that in terms of DOP&Ts O.M. No.36012/23/96-Estt.(Res. dated 3.10.2000, there is no relaxation of qualifying services for SC/ST candidates.
As per Recruitment Rules for the post of Senior Horticultural Assistant, the composition of DPC is as under:
Addl.Director General -Chairman Joint Director General (G)-Member Director (Administration) -Member
The review D.P.C. is requested to give its recommendations in regard to the promotion of Shri Naresh Chand, Senior Horticultural Assistant w.e.f. 2.4.1998/26.12.2000 against SC quota and fixation his seniority in the grade of Senior Horticultural Assistants.
16. The matter was accordingly considered by the Review Departmental Promotion Committee and its meeting was held on 09.10.2009, the relevant extracts of minutes of this DPC meeting are as follows:-
Review DPC noted that Shri Naresh Chand was not eligible for promotion when the DPC meeting was held on 13.2.1998 as he had not completed the requisite qualifying service. His claim for relaxation of qualifying service on grounds of being SC candidate was also not found to be admissible and the same was also confirmed by DOP&T. Review DPC also noted that at the time of DPC on 13.2.1998, out of the three vacancies, one was reserved for SC but no eligible SC candidagt4 was available at that time. As per extant instructions, SC vacancy ought to have been carried forward to the subsequent recruitment years. The Review DPC further noted that this was not done and in 1998, one general candidate was promoted instead. In these circumstances, the Review DPC was of the opinion that there was merit in the present claim of Shri Naresh Chand that he should have been considered for promotion in the year 2000, on completion of requisite qualifying services the SC vacancy should have been carried forward.
Keeping in view the above aspects, the instructions pertaining to carry forward of resultant vacancies and the representation of Shri Naresh Chand, the Review DPC accordingly recommended as follows:-
Shri M.A.H. Mantri who was promoted to the post of Senior Horticulture Assistant on the basis of DPCs recommendations held on 13.2.1998, would have to be notionally reverted and SC vacancy carry forward up to the year 2000.
Shri Naresh Chand has completed qualifying service in the year 2000. Review DPC after having assessed the relevant ACRs, find him FIT for promotion to the post of Senior Horticultural Assistant against th4e SC vacancy for the year 2000 along with all consequential financial benefits w.e.f. 26.12.2000 when he completed qualifying service. His seniority in the grade of Senior Horticultural Assistant is also re-fixed with reference to the above.
17. From the aforesaid, it becomes crystal clear that the Departmental Promotion Committee held on 13.2.1998 erroneously recommended the name of Shri M.A.H.Mantri, a General Category candidate for promotion against a reserved post meant for Scheduled Caste candidate in spite of having been noted the fact that out of three vacancies, two were unreserved and one was reserved for Scheduled Caste community which was required to be carried forward to next year. Had it been done, Respondent No.4 would have been considered for promotion in the year 2000 in his own right. The mistake or delay on the part of the department should not be permitted to recoil on Respondent No.4 as has been similarly held by the Honble Apex Court in Nirmal Chandra Bhattarchjee Vs. Union of India & Ors. (1991(2) Suppl. 363 in similar circumstances in para 4 of its judgment. Much reliance has been placed by the applicants counsel on the Administrative guidelines for preparing the extended panel in case of promotion which, inter alia, provide as follows in Para 6.4.4 thereof in Swamys Establishment and Administration:-
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 whether the vacancies relate to earlier year (s).
18. It would be appropriate to note in this regard the background in which these guidelines have been issued. The guidelines have been issued on the premises that normally in the case of promotion, the number of persons recommended in the panel is equal to the number of vacancies reported. However, sometimes DPCs recommend additional vacancies (extended panel) to tide over situations where officers on the select panel are not available for appointment by reason of being on deputation etc. There are at present no clear instructions regarding the guidelines to be followed for preparation of such extended panel. It has to be noticed that such extended panels are sometimes utilized for filling vacancies which have arisen subsequent to the DPC or during currency of the panel. This is an incorrect use of the extended panel. The promotion of Respondent No.4 has not been from the extended panel prepared in terms of the aforesaid guidelines. The guidelines further provide that the DPC s shall prepare an extended panel only in the following contingencies:-
2. The matter has been examined in consultation with the UPSC and it has been decided that DPCs shall prepare an extended panel only in the following contingencies:
when persons included in the panel are already on deputation or whose orders of deputation have been issued and will be proceeding on deputation shortly for more than a year, OR when persons included in the panel have refused promotion on earlier occasions and are under debarment for promotions, OR When officers included in the panel are retiring within the same year, provided there is no change in the zone of consideration by the expected date of their retirement. It is in this context that the guidelines have provided, inter alia, that the promotion would be prospective in the cases referred to therein as these are intended to law down a general rule of common application. As the promotion of Respondent No.4 has not been on the basis of an extended panel prepared in terms of the aforesaid guidelines, it would not be subject to these guidelines. Promotions are generally with prospective effect. This is the general rule of service jurisprudence. However, this rule is not absolute and is subject to certain exceptions. The concept of notional promotion is well known in service jurisprudence. When a person is not considered while his juniors are promoted and later on when he is found entitled to promotion above his juniors, the same can not be denied for the reason that promotions are prospective and not retrospective. What is being given to him is his due promotion. Granting promotion from due date is one thing; and the benefits from such a promotion consequentially in a given situation is another matter. As a necessary corollary, a person who has been wrongly denied his rightful promotion cannot be deprived of the benefits thereof by placing reliance on the general Rule that the promotions are generally prospective and cannot be given retrospective effect. As a matter of fact, the applicant himself has been given this benefit retrospectively vide Office Order No.122/2008-ADM.I dated 25.8.2008 when his name has been placed above Respondent No.4 who was promoted earlier vide Office Order dated 8.1.2003. As the applicant has been given benefit retrospectively, it is not open to him to object the same being similarly extended to Respondent No.4 for merely of it being made retrospectively. The applicant cannot simultaneously approbate and reprobate in this regard. Furthermore, it needs to be noted in this regard that the Office Order dated 25.8.2008 whereby the applicant has been given seniority retrospectively antedating his promotion to 8.1.2003, has not been passed pursuant to the recommendation of any DPC. It seems to have been done by administrative order in supersession of earlier order dated 3.2.2004. The Order dated 3.2.2004 has, however, been issued pursuant to the recommendations of DPC which was held as per the directions of this Tribunal dated 22.09.2003 in OA No.343/2003. The law does not permit a wrong to perpetuate itself for it has necessarily to be corrected by way of rectification. Generally speaking one has only a right to be considered for promotion and not to the promotion itself. Accordingly, no person can generally claim a right to be promoted from the date when the vacancy arose and he would generally take the benefit from the date of actual promotion. This would, however, not be in order when a person has been wrongly deprived of due consideration for promotion resulting in denial thereof which he was otherwise legally entitled to under the rules. Such unintentional mistakes are amenable to necessary rectification by holding review DPC. Thus, where there has been a gross error in the procedure followed by the DPC such as omitting the eligible person from consideration or considering the inelgible person by mistake, the same can be rectified by holding a review DPC and then extend the benefit due to an employee of which he has been wrongly deprived on account of such an error. This is only illustrative and not exhaustive. In these circumstances, we find that the cases relied upon by the applicants counsel are distinguishable on facts. Admittedly, there has been a gross mistake in the procedure followed by the DPC held in 1998. The respondents are well within their administrative competence to rectify the mistake either by holding a review DPC or even by holding necessary DPCs, as the case may be. In this regard, the applicants counsel has placed reliance on parameters for holding DPC as contained in Swamys Compilation on Seniority and Promotion. Accordingly, it is contended that the DPC should consider those persons who were eligible as on the date of meeting of original DPC. Respondent No.4 could not have been considered in the review DPC held for 1998 DPC as he was not eligible at that time. Furthermore, there has been no DPC held in the year 2000, and thus, the question for holding review DPC for the year 2000 would also not arise. The next DPC was held in 2002 in which Respondent No.4 was promoted. There could not be a review DPC for this as well for no mistake was committed in this DPC. Though these contentions of the applicant apparently appear to be convincing yet when examined in depth, they are found to be devoid of substance. The review DPC was held on 9.10.2009 to consider the representation received from Respondent No.4 regarding his promotion to the post of Senior Horticultural Assistant. He requested to grant him promotion from 2000 when he became eligible for promotion and the vacancy too was available for this purpose had the vacancy wrongly filled by promoting a general candidate against the vacancy reserved for SC candidate been duly carried forward to the next years as per the rules. Admittedly, the error committed by 1998 DPC can be rectified by holding a review DPC. This could be done only when the error was detected. The post against which he could have been granted promotion from the year 2000 had already been considered for filing up the reserved vacancy by a general category in the DPC held in 1998. Instead of carrying forward the vacancy, that DPC erroneously recommended one General category candidate against the reserved post. Unless and until that error is duly rectified by holding a review DPC in respect thereof, the relief sought by Respondent No.4 for antedating his promotion to 2000, could not have been granted. Besides, had this information been available during the DPC held in 2002, the error could have been rectified even at that time by holding review DPC. It is relevant to note in this regard that the administrative instructions issued by the Government with regard to holding DPC or the review DPC are intended for administrative guidance of the authorities concerned. A careful perusal of these guidelines reveals that quite often these guidelines are case specific rather than laying down exhaustive rules on the subject. At times, the extant guidelines may not provide for a given situation either for that such a situation has arisen for the first time or otherwise not contemplated while issuing earlier guidelines. This may necessitates fresh consideration and issuance of further guidelines the matter. Even the absence of such further guidelines, the law would, however, take its own course. The law would accordingly be construed in a newer perspective having regards to the facts and circumstances of a given case keeping in view its underlying intent and purpose. What is to be seen in such a case is whether a given action is within the competence of the authority concerned? When the source of power can be validly traced then the State action in the exercise of such power cannot be struck down on the ground that it was labeled under a different provision. In other words, if the act under challenge is not ultravires the power of the authority concerned, its validity can not be assailed merely with reference to the label under which or the manner in which, it has been done. We find support for this from the case of State of Sikkim Vs. Dorjee shering Bhutia and others ( 1991) 4 SCC 243 wherein it has been held that if source of power is traceable, exercise of such power cannot be set aside merely because it was done under a different provision.
19. Where the effect of an error committed by a DPC is not confined to the year of its holding alone but spill over the succeeding years, vitiating the entire proceedings, resulting in non-holding of DPC which ought to have been held in due course, the same can appropriately be dealt with by holding a review DPC for the whole period together or holding review DPC or the DPC at different stages, as the case may be. In these premises, we do not find the impugned action open to any objection on the grounds as have been raised by the applicant in these proceedings. It must be borne in mind that a Government employee cannot be deprived of his legitimate promotion arbitrarily without any reasonable ground for no fault of his own. If he has been wrongly denied promotion on account of an administrative error, the administration is not only within its competence but is duty bound to rectify the error and accord the benefit to which the Government employee is entitled to. It is relevant to note in this regard that the applicant has made an alternative prayer with regard to seniority to the post of Senior Horticultural Assistant to the effect that either Respondent No.4 be placed below the applicant in the Seniority List dated 11.11.2009 or the applicant be placed at par with Respondent No.4. The applicant having been promoted subsequent to the promotion of Respondent No.4 cannot be senior to him. Furthermore, the applicant having been promoted against the 14th Point in the Roster could not have been senior to Respondent No.4 who has been promoted against the 7th Point in the Roster. That being so, he cannot be viewed as an aggrieved person in so far as seniority accorded to Respondent No.4 with effect from 2000 is concerned, for he is not adversely affected by it in any manner. The applicant is not entitled for the reliefs claimed. In the result, the OA is dismissed. No order as to costs.
(Dr. Dharam Paul Sharma) (Shailendra Pandey) Member(J) Member(A) /usha/