Central Administrative Tribunal - Delhi
Ram Niwas vs Union Of India on 4 September, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 733/2009 With OA No. 737/2009 and OA No. 1011/2009 New Delhi, this the 4th day of September, 2009 HONBLE MR. L.K.JOSHI, VICE CHAIRMAN (A) HONBLE MRS. MEERA CHHIBBER, MEMBER (J) OA-733/2009 Ram Niwas Sub-Inspector (Exe.) Delhi Police Belt No.D-3475, PIS No.16940244 Central District R/o 1051, Pocket-B, M.I.G.Flat East of Loni Road, Delhi-94. . Applicant (By Advocate: Sh. R.K.Vats) Versus 1. Union of India Ministry of Home, North Block, New Delhi through Secretary 2. Commissioner of Police, Police Headquarters, M.S.O.Building, IP Estate, New Delhi. 3. Joint Commissioner of Police, Police Headquarters, M.S.O.Building, IP Estate, New Delhi. 4. Shyam Sunder Belt no.D-3472 PIS No.16940267 South District. 5. Hira Lal Belt no.D-3497 PIS No.16940085 South District. 6. Pawan Kumar Belt no.D-3514 PIS No.16940223 Security. 7. Balbir Singh Belt no.D-3506 PIS No.16940217 South West District. 8. Fateh Singh Belt no.D-1284 PIS No.16940200 New Delhi District. 9. Pramod Kumar Belt no.D-1255 PIS No.28893539 Central District. 10. Subash Chand Belt no.D-1370 PIS No.28891339 Traffic. 11. Brij Mohan Belt no.D-1252 PIS No.16950121 North District. 12. Raj Kumar Bajaria Belt no.D-1169 PIS No.27910204 North District. 13. Rajesh Kumar Belt no.D-1230 PIS No.16950009 F.R.R.O. 14. Vinay Kumar Belt no.D-1213 PIS No.16950010 Security. 15. Ram Swaroop Meena Belt no.D-1229 PIS No.16950011 West District. 16. Satender Mohan Belt no.D-1295 PIS No.16950093 Central District. 17. Krishan Kumar Belt no.D-1356 PIS No.28861100 Central District. 18. Subash Chandr Belt no.D-1277 PIS No.16950087 Outer District. 19. Shanker Lal Meena Belt no.D-1299 PIS No.16950095 I.G.I. Airport. 20. Prabhu Dayal Meena Belt no.D-1311 PIS No.16950171 Traffic. Respondents (By Advocate: Mrs. Sumedha Sharma) OA No. 737/2009 Rajesh Sinha Sub-Inspector (Exe.) Delhi Police Belt No.D-3361, PIS No.16940082 East District R/o C-3, Police Colony, Bhajanpura, Delhi-53. . Applicant (By Advocate: Sh. R.K.Vats) Versus 1. Union of India Ministry of Home, North Block, New Delhi through Secretary 2. Commissioner of Police, Police Headquarters, M.S.O.Building, IP Estate, New Delhi. 3. Joint Commissioner of Police, Police Headquarters, M.S.O.Building, IP Estate, New Delhi. 4. Ashok Kumar Singh, Belt no.D-3400 PIS No.16940037 South District. 5. Dharmender Kumar Belt no.D-3398 PIS No.16940039 Crime & Railways. 6. Ashok Saini, Belt no.D-3433 PIS No.16003433 Traffic 7. Satender Sangwan Belt no.D-3395 PIS No.16940014 Operation Cell 8. Rahul Kumar Belt no.D-3349 PIS No.16940057 Operation Cell 9. Ajay Kumar Singh Belt no.D-3358 PIS No.16940079 Security 10. Sunil Kumar Belt no.D-3446 PIS No.16940256 Crime & Railways 11. Atul Kalia Belt no.D-3418 PIS No.16940298 Head Quarters 12. Ajit Singh Yadav Belt no.D-3342 PIS No.16940061 West District 13. Ashok Kumar Belt no.D-3357 PIS No.16940080 New Delhi District 14. Rajeev Kumar Belt no.D-3440 PIS No.16940259 Crime & Railways 15. Raghuvender Narain Belt no.D-3464 PIS No.16940282 New Delhi District 16. Ashok Kumar Belt no.D-3341 PIS No.16940062 Operation Cell 17. Rajesh Kumar Rana Belt no.D-3369 PIS No.16940023 North District 18. Ramesh Kumar Belt no.D-3310 PIS No.16940059 Operation Cell 19. Anil Kumar Pandey Belt no.D-3368 PIS No.16940027 North West District 20. Subey Singh Belt no.D-3527 PIS No.28841035 I.G.I. Airport 21. Dalip Singh Belt no.D-3523 PIS No.28840292 Operation Cell 22. Sanjay Singh Belt no.D-3422 PIS No.16940290 North District 23. Sanjay Bhardwaj, Belt no.D-3428 PIS No.16940301, Crime & Railways 24. Gyan Chand Belt no.D-3339 PIS No.16940064235 F.R.R.O. 25. Rajeshwar Aggarwal Belt no.D-3320 PIS No.16940028 Security 26. Sunil Kumar Belt no.D-3372 PIS No.16940028 South District 27. Ravinder Ahlawat Belt no.D-3404 PIS No.16940034 Central District 28. Rajinder Singh Belt no.D-3532 PIS No.28820273 Operation Cell 29. Ram Phal Singh Belt no.D-3533 PIS No.28790470 South West District 30. Brij Pal, Belt no.D-3524 PIS No.28850013 Security 31. Gurdev Singh Belt no.D-3510 PIS No.16940221 Police Control Room 32. Prabhu Dayal Belt no.D-3498 PIS No.16940214 North East District 33. Chander Prakash Belt no.D-3482 PIS No.16940240 DAP VII BN 34. Sunil Chauhan Belt no.D-3546 PIS No. 16940224 I.G.I. Airport 35. Satbir Singh Belt no.D-3542 PIS No. 28821330 North West District 36. Suraj Bhan Singh Belt no.D-3540 PIS No. 28810349 North East District 37. Ram Phool Meena Belt no.D-3492 PIS No. 16940235 South District 38. Subhash Chander Belt no.D-3469 PIS No. 16940246 F.R.R.O. 39. Anil Kumar Belt no.D-3477 PIS No. 16940283 Traffic 40. Shyam Sunder Belt no.D-3472 PIS No.16940267 South District. 41. Hira Lal Belt no.D-3497 PIS No.16940085 South District. 42. Pawan Kumar Belt no.D-3514 PIS No.16940223 Security. 43. Balbir Singh Belt no.D-3506 PIS No.16940217 South West District. 44. Fateh Singh Belt no.D-1284 PIS No.16940200 New Delhi District. 45. Pramod Kumar Belt no.D-1255 PIS No.28893539 Central District. 46. Subash Chand Belt no.D-1370 PIS No.28891339 Traffic. 47. Brij Mohan Belt no.D-1252 PIS No.16950121 North District. 48. Raj Kumar Bajaria Belt no.D-1169 PIS No.27910204 North District. 49. Rajesh Kumar Belt no.D-1230 PIS No.16950009 F.R.R.O. 50. Vinay Kumar Belt no.D-1213 PIS No.16950010 Security. 51. Ram Swaroop Meena Belt no.D-1229 PIS No.16950011 West District. 52. Satender Mohan Belt no.D-1295 PIS No.16950093 Central District. 53. Krishan Kumar Belt no.D-1356 PIS No.28861100 Central District. 54. Subash Chandr Belt no.D-1277 PIS No.16950087 Outer District. 55. Shanker Lal Meena Belt no.D-1299 PIS No.16950095 I.G.I. Airport. 56. Prabhu Dayal Meena Belt no.D-1311 PIS No.16950171 Traffic. Respondents (By Advocate: Shri R.N. Singh) OA No.1011/2009 Yashpal Sub-Inspector (Exe.) Delhi Police Belt No.D-3476, PIS No.16940250 Outer District R/o RZ-18-A, Gali No.5, Syndicate Enclave, Dadri, Delhi-45 . Applicant (By Advocate: Sh. R.K.Vats) Versus 1. Union of India Ministry of Home, North Block, New Delhi through Secretary 2. Commissioner of Police, Police Headquarters, M.S.O.Building, IP Estate, New Delhi. 3. Joint Commissioner of Police, Police Headquarters, M.S.O.Building, IP Estate, New Delhi. 4. Ram Phool Meena, Belt no.D-3492 PIS No.16940235 South District. 5. Subhash Chander Belt no.D-3469 PIS No. 16940246 F.R.R.O. 6. Anil Kumar Belt no.D-3477 PIS No. 16940283 Traffic 7. Shyam Sunder Belt no.D-3472 PIS No.16940267 South District. 8. Hira Lal Belt no.D-3497 PIS No.16940085 South District. 9. Pawan Kumar Belt no.D-3514 PIS No.16940223 Security. 10. Balbir Singh Belt no.D-3506 PIS No.16940217 South West District. 11. Fateh Singh Belt no.D-1284 PIS No.16940200 New Delhi District. 12. Pramod Kumar Belt no.D-1255 PIS No.28893539 Central District. 13. Subash Chand Belt no.D-1370 PIS No.28891339 Traffic. 14. Brij Mohan Belt no.D-1252 PIS No.16950121 North District. 15. Raj Kumar Bajaria Belt no.D-1169 PIS No.27910204 North District. 16. Rajesh Kumar Belt no.D-1230 PIS No.16950009 F.R.R.O. 17. Vinay Kumar Belt no.D-1213 PIS No.16950010 Security. 18. Ram Swaroop Meena Belt no.D-1229 PIS No.16950011 West District. 19. Satender Mohan Belt no.D-1295 PIS No.16950093 Central District. 20. Krishan Kumar Belt no.D-1356 PIS No.28861100 Central District. 21. Subash Chandr Belt no.D-1277 PIS No.16950087 Outer District. 22. Shanker Lal Meena Belt no.D-1299 PIS No.16950095 I.G.I. Airport. 23. Prabhu Dayal Meena Belt no.D-1311 PIS No.16950171 Traffic. Respondents (By Advocate: Shri R.N. Singh) ORDER
Mr. L.K. Joshi, Vice Chairman (A) We are disposing of these three OAs by this common order as these are founded on identical facts and questions of law. The facts have been extracted from OA No.733/2009.
2. The Applicant is aggrieved by the fact that he has been overlooked for inclusion of his name in promotion List F in the order dated 16.01.2009, based on the recommendation of the Departmental Promotion Committee (DPC), which met on 13.01.2009. The Applicant takes serious exception to the fact that the DPC followed the circular dated 29.12.2008, laying down the guidelines for the DPC, whereas it should have followed the circular dated 7.02.2005 because the vacancies had occurred due to creation of 7612 posts on 26.09.2008 and communicated to the second Respondent on 18.11.2008, before the circular dated 29.12.2008 was issued.
3. The Applicant joined Delhi Police in the year 1994 as a Sub-Inspector (Executive) and was working in this capacity at the relevant time. Promotions are governed by the Delhi Police (Promotion & Confirmation) Rules, 1980. Rule 5 (i) prescribes the method of promotion on the basis of seniority subject to fitness. Rule 5 (i) of the aforesaid Rules reads thus:
5. General Principles of Promotion (i) Promotion from one rank to another and from lower grade to the higher grade in the same rank shall be made by selection tempered by seniority. Efficiency and honesty shall be the main factors governing selection (Amended vide Notification No.F5/60/83-H(P)/Estt., dated April 7, 1984). Zone of consideration will be determined in accordance with rules/instructions issued by the Government from time to time. Under Rule 8 of the above said Rules, Departmental Committee is constituted for judging fitness of the personnel for promotion. Rule 17 reads thus:
17. List F (i) List-F (Executive) Confirmed Sub-Inspector (Executive) who have put in a minimum of 6 years service in the rank of Sub-Inspector, shall be eligible. The selection shall be made on the recommendations of the Departmental Promotion Committee. The names of selected Sub-Inspectors shall be admitted to List F (Executive) on the basis of their respective seniority, keeping in view the number of vacancies likely to occur in the following one year, and promotion made to the rank of Inspector from this list as and when vacancies became available.
3. Guidelines are issued from time to time laying down the principles to be followed by the Departmental Promotion Committee (DPC) for admission to the promotion Lists. The guidelines contained in the circular dated 7.02.2005 read thus:
i) The DPC should assess the suitability of the employees for promotion on the basis of their Service records with particular reference to the Confidential Reports for five preceding years irrespective of the qualifying service prescribed in the Service/Recruitment rules. Officers having at least three good and above reports without any below average or adverse report, even for a small period during last five years may be empanelled. (If more than one CR has been written for a particular year, all the CRs for relevant year shall be considered together as the CR for one year).
ii) The service record of the officer during preceding 10 years in that particular rank shall be taken into account with particular reference to the gravity and continuity of punishment till date. Punishment on counts of corruption and moral turpitude are to be viewed seriously.
iii) Officers who have been awarded any major/minor punishment in the preceding 5 years on charges of corruption, moral turpitude and gross dereliction of duty to protect government property or major punishment within 2 years on charges of administrative lapses, from the date of consideration may not be empanelled.
iv) Officers whose names stand on Secret List shall not be considered fit as per S.O. No.265 on the subject.
v) Officers who have been awarded censure(s) during the last 6 months can be allowed to be brought on promotion list. However, the effect of censure debarring the official for promotion for six months from the date of award, shall continue.
vi) Result of officers, who are under suspension or facing DE or involved in Criminal Cases shall be kept in sealed covers.
This supercedes earlier circular, issued vide this Hdqrs. order No.83135-234/CB-1, dated 03.12.1998. These guidelines were modified by the guidelines issued on 29.12.2008, which have been reproduced below:
In future, the following criteria shall be observed while holding departmental promotion committees for admission of names of police personnel to promotion lists and grant of Assured Career Progression Scheme:-
1. The DPC should assess the suitability of the personnel for promotion on the basis of their service records with particular reference to the Confidential Reports for five preceding years irrespective of the qualifying service prescribed in the Service or Recruitment Rules. Personnel having at least three good and above reports without any below average or adverse report, even for a small period, during the last five years may be empanelled. If more than one ACR has been written for a particular period, then the grading of the ACR, written for the longest period of time would be considered for the entire year. However, if adverse remarks (C ACR) have been recorded for even a smaller part of the year, the adverse grading would be taken into consideration and the individual would be debarred from empanelment for 5 years. As per the current ACR format, the only grading which are applicable for lower subordinates are A, B & C. A is excellent/outstanding B is very good/good and C is adverse. Any other grading in the form of plus and minus of outstanding, satisfactory, good are irrelevant. Where the work and conduct of any employee has been categorized as Satisfactory-B it will be treated as B.
2. Officers who have been awarded any major punishment in the preceding 05 years on the charges of corruption, moral turpitude and gross dereliction in discharge of duty or major punishment within 02 years on charges of administrative lapses, misconduct, negligence, inefficient performance from the date of consideration may not be empanelled.
3. Officers who have been awarded any minor punishment in preceding 05 years on charges of corruption, moral turpitude etc. consequent upon conducting D.E. proceedings for the award of major punishment in which the charges have been found proved, may not be empanelled.
4. Besides the disciplinary proceedings due to award of major/minor punishments on grounds of moral turpitude, corruption and other reasons as indicated in para (2) and (3) above, the punishment record of the officer during the preceding 10 years in that particular rank shall be taken into account with particular reference to the gravity and continuity of punishments till date. Award of major/minor punishments on their own, as detailed in para (2) & (3) above, debar a candidate from empanelment for specified period. In addition of the disability caused by specific acts of punishment, the cumulative punishment record of a candidate is also a relevant factor for assessing the suitability of a candidate for a higher post. All punishments awarded during the period of 10 years preceding the year of DPC would also be taken into consideration. If an officer on assessment of record of punishment get more than 10 (ten) adverse points, he shall not be empanelled in that particular year. For calculating 10 adverse points, each major punishment with corruption/moral turpitude would carry 6 points, other major punishments would carry 4 points and each censure would carry 2 points. A censure awarded consequent upon conducting DE proceedings for the award of a major punishment in which charges have been found proved would carry 4 points.
5. Officers, who have been awarded a censure during the last 6 months and not covered by any of above clauses on minor punishment, can be allowed to be brought on the promotion list. However, the effect of censure debarring the official for promotion for six months from the date of award shall continue.
6. Officers whose names stand on the Secret List of doubtful integrity shall not be considered fit as per Standing Order No.265 on the subject.
7. Result of officers who are under suspension or facing departmental enquiry or involved in criminal cases, shall be kept in sealed cover.
This supersedes earlier circular issued vide this Hdqrs.No. A-1/12(6)98/SPL/7931-8030/CB-I dated 7.2.2005.
4. It may also be noted, as per the information given by the Respondents to the Applicant under the Right to Information Act, 2005, placed at Annex A-7, that in Delhi Police vacancies are calculated for each financial year since the ACRs are written for each financial year. In order to fill up the vacancies of the Inspector (Executive) for the financial year 2008-09, the promotion list `F (Executive) was drawn up on 16.09.2008. Subsequent to the drawing up of the promotion list 16.09.2008, the Government of India sanctioned 7612 additional posts in various ranks, including Inspector (Executive). Therefore, the need to fill up these newly sanctioned posts arose. The vacancies were again calculated in respect of the newly sanctioned posts of Inspector (Executive) and anticipated vacancies of the financial year 2008-09. The DPCs for various promotion lists are constituted in advance every year. For the year 2008-09, it was constituted on 15.04.2008. For filling up the posts of Inspector F (Executive) on the basis of newly sanctioned posts and anticipated posts of the year 2008-09, DPC met on 13.01.2009. The DPC followed the guidelines mentioned in the circular dated 29.12.2008, reproduced in the immediately preceding paragraph of this order.
5. The approval for the creation of 7612 posts was conveyed to the Delhi Police by letter dated 18.11.2008 of the first Respondent, i.e., the Ministry of Home Affairs, Government of India, to the Pay and Accounts Office-II of the Delhi Police (Annex A-8).
6. By the impugned order dated 16.01.2009, seventy-three Sub-Inspector (Executive) were promoted as Inspector (Executive) with immediate effect. Four out of these seventy-three were promoted on proforma-basis. The Applicant was not promoted in this order.
7. Another fact to be taken note of is that the Applicant had been awarded the punishment of Censure on 5.01.1998, 3.04.1998, 13.07.2006, 10.07.2006, 3.02.2007 and 22.02.2008 and punishment of withholding of one years temporary service temporarily by order dated 3.03.1999 of the disciplinary authority and confirmed by the order dated 1.06.1999 of the appellate authority. The Applicant had also been awarded the punishment of forfeiture of three years service permanently by order dated 24.12.1997, which was modified by the appellate authority to forfeiture of one years service permanently. These facts have been verified from the original service book of the Applicant.
8. The sole argument urged on behalf of the Applicant is that the DPC was constituted on 15.04.2008 and the vacancies had been created in November 2008 and, therefore, the DPC had to be governed by the guidelines issued on 7.02.2005 and not by the guidelines issued on 29.12.2008, subsequent to the creation of vacancies. The learned counsel would strenuously urge that a vested right for consideration for inclusion in promotion list F had been created on the date of creation of vacancies and hence consideration for promotion had necessarily to be based on the circular extant on that date, that is, the circular dated 7.02.2005. The learned counsel would contend that this Honourable Tribunal had in its order of the Full Bench dated 25.09.2008 in Ashok Kumar Meena Vs. Government of NCT of Delhi and others had held that the effect of Censure not based on the grounds of corruption, moral turpitude or gross dereliction of duty to protect Governments property, would last only for six months from the date of award of Censure. The learned counsel would contend that if it were to be so, he would have been eligible for promotion on the date of meeting of DPC. He would submit with some degree of vehemence that the circular dated 29.12.2008 has changed the rules of the game by amending the guidelines and making the effect of `censure last for ten years. The learned counsel would argue that this is in colourable exercise of power by the Respondent and is an arbitrary exercise of power in violation of the law laid down by the Honourable Supreme Court. Reliance has been placed on Chairman Railway Board and others Vs. C.R. Rangadhamaiah and others, AIR 1997 SC 3828; Y.V. Rangaiah and others Vs. J. Sreenivasa Rao and others, AIR 1983 SC 852; Hira Lal Vs. Government of NCT of Delhi and others, 2002 II AD (Delhi) 878 (Delhi High Court); Maharashtra State Road Transport Corpn. and others Vs. Rajendra Bhimrao Mandve and others, (2001) 10 SCC 51; and Ashok Kumar Vs. Slum and J.J. Deptt., MCD and others, 2005 VII AD (Delhi) 429 (Delhi High Court).
9. Au contraire, the Respondents have opposed the claim laid and filed counter affidavit. It is argued that the DPC has full discretion to devise its own methods and procedures for objective assessment of the suitability of the candidates as per the guidelines for DPCs circulated by the Department of Personnel and Training (DoP&T) by its Office Memorandum dated 10.04.1989. It is further contended that the DPC is constituted for the financial year and the latest guidelines in existence on the date of meeting of the DPC would apply. It is also the contention on behalf of the Respondents that no one junior to the Applicant has been considered for promotion before 13.01.2009 and, therefore, the right for consideration of the Applicant for promotion would also accrue from the date of promotion of his junior.
10. We have considered the judgements of the Honourable Supreme Court and Delhi High Court cited by the learned counsel for the Applicant. In Maharashtra State Road Transport Corporation case (supra), the issue considered by the Apex Court is entirely different from the issue in the case in hand. A circular number 52 dated 21.08.1980 contained instructions relating to constitution of Screening Committees for selection of drivers with effect from 1.11.1980. It provided four stages of selection initial screening on the basis of application, physical examination, driving test and final interview. A circular number 25 of 1990 issued on 2.07.1990 pertained to award of marks in interview. Another circular was issued on 23.01.1995. It stated, in general, that both the 60 per cent marks in written test/ trade test and 40 per cent marks in personal interview should be considered, while preparing the final selection list. Thereafter, it enjoined that the same procedure should be followed for selection of drivers. Another circular of 4.04.1995 assigned 87.5 per cent marks for written and 12.5 per cent marks for interview. Then a circular number 17 of 1996 was issued on 24.06.1996. It was issued by way of clarification. The Honourable Apex Court found all the circulars to be inadequate. The circular of 2.01.1995 contained no reference to the driving test and fixed weightage only for the written test and interview. The appellant Corporation claimed that the circular of 24.04.1996 was, therefore, issued as a clarificatory circular. The Honourable Supreme Court held thus:
6. We have held that the circular orders dated 24-6-1996 will have no relevance or application to the selections in question, undertaken pursuant to the advertisement issued on 20-9-1995. It has also been noticed by us that the circular order dated 4-4-1995, on the face of it, will apply only in cases where the selection has to be finalized on the basis of any written examination and interview. There being no written examination for selection of Drivers for appointment, the selection process has to be on the basis of only circular orders dated 21-8-1980 and 23-1-1995. These aspects were left to lie in a nebulous state, leaving much for assumptions on either side to be possible. This should have been averted by the Corporation, by proper and appropriate action at the crucial and relevant point of time before setting the selection process in motion. It is high time that the Board takes up this for consideration and resolves it by an appropriate decision. For such lapses, neither the candidates, who got selected and appointed, nor the writ petitioners, who lost in the selection, could be entirely blamed. The writ petitioners also have not chosen either to allege or substantiate any mala fides or bias against any member of the Selection Committee, except making a grievance that within the course of the time available on a single day about 322 applicants could not have properly subjected to interview for assessment of merits or assignment of marks for selection. The learned counsel for the appellants would seek to place reliance upon the decisions of this Court reported in Sardara Singh v. State of Punjab, (1991) 4 SCC 555) and Madan Lal v. State of J&K, (1995) 3 SCC 486) to contend that such contentions are not sufficient to warrant interference with the selections made. Clearly the facts and the circumstances of the case are fully distinguishable from the facts and circumstances of the instant case.
11. In Ashok Kumar Vs. Slum & JJ Deptt. MCD (supra), the issue is tangentially different from the case before us, as would be clear from the narration of facts in paragraph 3 of the Honourable High Courts judgment;
3. On 18.4.2001, the MCD issued a circular calling for applications from amongst eligible UDC for filling up post of Head Clerk in the pay scale of Rs.5500-9000/-. The circular stated that a departmental examination would be held for the purpose. The petitioner applied in response to the circular. His candidature was provisionally accepted on 11.8.2001. He appeared in the examination. A select list was prepared on 10.7.2001, consisting of 11 persons who were appointed to the post of Head Clerk. The petitioner name did not figure in that list. He therefore, represented to MCD raising a grievance that even though he had passed in all four test papers and was at Sl. no.11, at least four persons who had not cleared and secured minimum marks in each paper had been nevertheless included in the select list and appointment. One Sh. Ravinder Kumar, respondent no. 14, in these proceedings was also appointed. It is averred that he was at sl. No.16, but was nevertheless granted promotion.
12. We are distressed to note that yet another case cited by the Applicant - Siraj Khan and ors. V. Union of India & ors., 2004 (78) DRJ 137 (Delhi High Court) is again far off the mark. The issue as noted by the Honourable High Court is:
2. Petitioners Siraj Khan, D.S. Pundir and B.S. Rawat were working with respondent No. 2 i.e. Handicrafts and Handloom Export Corp. Petitioners seek by the present writ petition direction to respondents to grant them notional promotion to the post of Deputy Marketing Manager w.e.f. 1.1.1997, 1.7.1999 and 1.7.1999 respectively according to the promotion policy of the year 1985-86 and release their pecuniary benefits.
3. The grievance of the petitioner emanates from the promotion policy introduced w.e.f. 18.10.1995. The said policy is contained in the officer order dated 30th October, 1995. It gave inter alia the revision of pay scales. The said office order specifically provides that existing Time Bound Promotion Policy stands scrapped w.e.f. 18.10.1995 and replaced with vacancy oriented Promotion Policy. The previous policy was one primarily based on time bound promotion.
4. Learned counsel for the petitioners assail the policy introduced by office order dated 30.10.1995 on the ground that it amounts to retrospectively denying those benefits to the petitioners which had accrued to them under the earlier time bound promotion policy. The said submission is devoid of merit. The case has no relevance whatsoever to the instant case.
13. In C.R. Rangadhamaiah (supra) case, Rule 2544 of the Indian Railway Establishment Code was amended by notification dated 5.12.1988 reducing the maximum limit of running allowance for computation of pension and retirement benefits in case of running staff such as drivers was reduced from 75 per cent to 45 per cent from 1.10.1973 to 31.03.1979 and to 55 per cent from 1.04.1979. This affected the pension of persons already retired from service when the allowance was 75 per cent. The Honourable Apex Court upholding a decision of the full bench of this Tribunal held such prospective reduction to be in violation of Article 14 and 16 of the Constitution. We are unable to persuade ourselves that this judgement would have any relevance to the case in hand.
14. In Y.V. Rangaiah (supra), under the existing rules it was provided that a panel of candidates for promotion to the post of Sub-Registrar, Grade II would be prepared by September of each year. Such panel was not prepared on 1.09.1976 and was delayed by one year, by which time rules had been amended in March, 1977 as a result of which Lower Division Clerks ceased to be eligible for promotion to the post of Sub-Registrar Grade II. Such promotion was to be made from Upper Division Clerks. The complaint of the petitioners in the two representations petitions is that by delaying the preparation of list of approved candidates till after the rules were amended their chances for consideration for appointment to the higher post were adversely affected inasmuch as the petitioners were much higher to the respondent Nos.3 to 15. Had a list been prepared as on 1st Sept. 1976 in accordance with the prescribed rules and instructions the petitioners by virtue of their high seniority among Lower Division Clerks stood a fair chance of being appointed to higher grade. As a result, respondents 3 to 15, who were junior to the petitioners in the grade of Lower Division Clerks got promoted. In these facts of the case the Honourable Supreme Court held that [T]he vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It does not require much imagination to realize that this case is as different from the facts of the OA under consideration as fish is from fowl. In Hira Lal (supra), the ratio of Y.V. Rangaiah (supra) has been applied.
15. It is trite law that the judgements, which have not considered the issues raised in an OA would not form a precedent in that case. In Shin-Etsu Chemical Co. Ltd. Vs. Akash Optifibre Ltd. and another, (2005) 7 SCC 234, the Honourable Supreme Court has held thus:
69It is a well settled proposition that the ratio-decidendi of a case is the principle of law that decided the dispute in the facts of the case and, therefore, a decision cannot be relied upon in support of a proposition that it did not decide. An apt observation about this principle was made in Amar Nath Om Prakash Vs. State of Punjab :
"We consider it proper to say, as we have already said in other cases, that judgments of courts are not be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the explanation is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.
It is needless to repeat the oft-quoted truism of Lord Halsbury that a case is only an authority for what it actually decides and not for what may seem to follow logically from it."
We are, therefore, not considering the judgements cited as precedents in this case.
16. In the instant case, the vacancies arose in the financial year 2008-09 and the eligible candidates were considered for promotion with utmost expedition in the same financial year. The learned counsel for the Applicant is, in our considered opinion, absolutely wrong in arguing that the guidelines dated 7.02.2005 would apply to him because vested rights for promotion accrued to him on the date of the creation of the vacancies by the sanctioning of new posts and on that date the aforesaid guidelines were applicable. The Applicant has a right for consideration for promotion, when the vacancies arise and he is eligible. In an extreme example, the Respondents also have the right not to consider anyone for promotion, should be exigencies of the administration so demand. The Applicant cannot then represent that he has a vested right for promotion from the very date of creation of vacancies. Should, however, a person junior to him be considered for promotion before him, he has a right to represent. The Applicant has been considered for promotion in the DPC of 13.01.2009. The consideration is on the basis of the guidelines dated 29.12.2008, which is prior to the date of the meeting of the DPC. All the candidates have been considered on the basis of these guidelines. There is no discrimination between the candidates eligible for consideration, including the Applicant. The Respondents have a right to frame the guidelines for the DPCs and there cannot be any judicial interference in such case, unless the guidelines are perverse or are drafted to favour a class of candidates. The guidelines cannot be interfered with merely because these affect the Applicant adversely. The Applicant is not supported by any of the judgements he has cited in the contention that guidelines of 7.02.2005 would apply because these were in force when the vacancies arose. This contention is bereft of any logic. We have no doubt in our mind that only the guidelines in existence on the date of holding of DPC would apply. These are the only rules of the game and only these would apply. The DPC of 13.01.2009 could not have taken cognizance of the guidelines of 7.02.2005. The executive has every right to amend the guidelines any time and the Tribunal would not interfere with these as long as all the similarly placed candidates are treated uniformly on the basis of these guidelines.
16. The OAs are dismissed on the above consideration. The parties will bear their own costs. A copy of this order may be placed in all OAs.
( MRS. MEERA CHHIBBER ) ( L.K. JOSHI )
Member (J) Vice Chairman (A)
sd