Delhi High Court
Union Of India & Anr. vs B.P.Gairola & Ors. on 4 August, 2014
Author: S. Ravindra Bhat
Bench: S. Ravindra Bhat, Vipin Sanghi
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 04.08.2014
% W.P.(C.) No. 6708/2013
UNION OF INDIA & ANR.
..... Petitioner
Through: Mr. R.V. Sinha, Mr. R.N. Singh and
Mr. A.S. Singh, Advocates
versus
B.P. GAIROLA & ORS
..... Respondent
Through: Mr. Rajesh Katyal, Advocate
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE VIPIN SANGHI
S. RAVINDRA BHAT, J. (OPEN COURT)
1. The petitioner/Union of India (UOI) claims to be aggrieved by an
order of the Central Administrative Tribunal (CAT/ Tribunal) dated
14.05.2013 in O.A. No. 2853/2012. The Tribunal had directed retrospective
promotion of the first respondent/applicant with effect from the date the
vacancy occurred in the cadre of Area Organiser for the year 2011-12.
2. The undisputed facts are that the respondent employee initially joined
the UOI as Circle Organiser in Group B gazetted executive cadre post on
19.11.1985. He was subsequently promoted on the basis of seniority to the
rank of Joint Area Organiser with effect from 01.04.2008.
W.P.(C.) No.6708/2013 Page 1 of 7
3. In the meanwhile, the existing rules promulgated under proviso to
Article 309 of the Constitution were de-notified sometime in 2007. This led
to litigation before the CAT, which by its order dated 05.01.2010 (in
Bakhtawar Singh v. Cabinet Secretary - O.A. No.2104/2009) quashed/set
aside the de-notification, with a further direction to consider the claims of
the applicants before it in those proceedings for further promotion.
4. In compliance, the UOI on 27.04.2010 withdrew the de-notification
order of 16.07.2007. It subsequently promoted several individuals by an
order dated 12.12.2011 as Joint Area Organiser. Yet later, by an order dated
20.01.2012 in compliance with another order of the Tribunal, notional
promotional benefit was given to the first respondent with effect from
01.04.2008 in the grade of Joint Area Organiser.
5. The first respondent/applicant superannuated on 30.04.2012. On
04.07.2012, the departmental promotion committee considered the cases of
officers eligible for promotion to the post of Area Organiser. The rules
required, as an eligibility condition, two years experience in the cadre of
Joint Area Organiser.
6. Acting upon an office memorandum of Department of Personnel and
Training (DOPT) dated 12.10.1998, the names of all eligible applicants who
fell within the zone of consideration, including those who retired as on the
date of consideration were taken into account. The respondent's name was
thus considered. However, on an application of the same office
memorandum, the promotion or promotional benefits arising out of the
notional orders was denied to him. It was in these circumstances that the
W.P.(C.) No.6708/2013 Page 2 of 7
respondent/applicant approached the Tribunal stating that since the
vacancies had arisen for the period 2011-2012, his claim for notional
promotion had been overlooked and that he should be granted such benefits.
7. Before the Tribunal, the respondent/applicant relied upon three
instances- one of Sh. Sarat Adhikari (who was given the post of Area
Organiser on 07.08.2012), and the others, Sh. R.C. Sharma and Sh. R.D.
Thakur. It was submitted that these three individuals were in the same
situation as the respondent, inasmuch as they had superannuated or retired as
on the date of consideration by DPC, but were nevertheless extended the
benefit of promotion. The Tribunal, by its impugned order, allowed his
claim and directed that he ought to be granted promotion with effect from
the date the vacancy arose.
8. It is argued on behalf of the UOI that the Tribunal could not have
overlooked the contents of the office memorandum, which specifically
forbids the authorities from granting retrospective or notional promotion
from a date anterior to what is recommended. Counsel for the UOI argued
that unless the rules or regulations support the grant of such benefits with
effect from an anterior date or the date of occurrence of vacancy, the benefit
is inadmissible. The petitioner relies upon three judgments of the Division
Bench of this Court -reported as Union of India v. Rajendra Roy, 2007 (1)
ILR (Del) 378; Union of India v. R.N. Malhotra, 2012 (191) DLT 449, and
Union of India v. K.L. Taneja & Anr., 2013 (1) ADR 530.
9. It is argued that in these decisions, the Division Benches had
considered the effect and purport of the 12.10.1998 circular as well as the
binding rulings of the Supreme Court in Union of India v. K.K. Vadera &
W.P.(C.) No.6708/2013 Page 3 of 7
Ors., 1989 Suppl. (2) SCC 625; and Baij Nath Sharma v. Rajasthan High
Court, (1998) 7 SCC 44.
10. Learned counsel for the respondent urges that there is no unalterable
principle that retrospective promotion (in the sense of conferment of
notional benefit from an anterior date) should be denied. If good and valid
reasons are established before a Court or Tribunal, such benefit should be
granted. Stipulations to the contrary cannot be binding, and have to be
disregarded. He highlighted that the UOI was at fault in the first place in de-
notifying the rules in 2007. Subsequently, after a long battle for three years,
that notification was quashed. Recognising the injustice meted out or
flowing from its action, notional promotions were granted in the cadre of
Joint Area Organiser with effect from retrospective date i.e. when the
vacancy arose. The same principle would be applicable for the higher post
as Area Organiser. He also relied upon the judgment of the Supreme Court
in Maj. Gen. H.M. Singh, VSM v. Union of India & Anr., JT 2014 (1) SCC
465, and Punjab and Haryana High Court's decision reported as Chaman
Lal Lakhanpal v. Union Public Service Commission, 1998 (3) SLR 436.
11. The office memorandum of 1998 to the extent relied upon by the
UOI reads as follows:
"Procedure to be followed by the Departmental
Promotion Committees in regard to retired employees -
2. Doubts have been expressed in this regard as to
the consideration if employees who have since retired but
would also have been considered for promotion, if the
DPC(s) for the relevant year (s) had been held in time.
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3. The matter has been examined in consultation with
the Ministry of Law (Department of Legal Affairs). It may
be pointed out in this regard that there is no specific bar
in the aforesaid Office Memorandum, dated April 10,
1989 or any other related instructions of the Department
of Personnel and Training for consideration of retired
employees, while preparing yearwise panel(s), who were
within the zone of consideration in the relevant year(s).
According to the legal opinion also, it would not be in
order, if eligible employees, who were within the zone of
consideration for the relevant year(s) but are not actually
in service when the DPC is being held, are not
considered while preparing yearwise zone of
consideration/panel and, consequently, their juniors are
considered (in their places) who would not have been in
the zone of consideration, if the DPC(s) had been held in
time. This is considered imperative to identify the
correct zone of consideration for relevant year(s). Names
of the retired officials may also be included in the
panel(s). Such retired officials would, however, have no
right for actual promotion. The DPC(s), may, if need be,
prepare extended panel(s) following the principle
prescribed in the Department of Personnel and Training.
OM No. 22011/8/87-Estt.(D), dated 09.04.1996".
12. This Court in Rajendra Roy (supra) and subsequently in R.N.
Malhotra (supra) had the occasion to deal with the same office
memorandum. The Division Bench on both the occasions applied the law
declared by the Supreme Court in K.K. Vadera (supra) and Baij Nath
Sharma (supra). We notice that in K.L Taneja (supra) too, an identical
issue was involved, i.e. claim for retrospective promotion. While
W.P.(C.) No.6708/2013 Page 5 of 7
summarising the law in para 21, the Court stated that it is only if a rule
supports the grant of retrospective promotion, that it is admissible and can
be claimed. The exceptions to this principle are if a rightful claim of an
officer or public servant is denied at the relevant time and his juniors in the
cadre are given promotion, or he is able to plead and prove malafide in the
given facts of the case.
13. The facts of the present case point out that, no doubt between 2007
and 2010, there was a controversy as to the legality of the de-notification of
the Recruitment rules. This ultimately resulted in the UOI accepting the
Tribunal's order and issuing a consequential notification restoring the rules
in 2010. Due to this stalemate, promotions to the post of Area Organisers
were held up. Thereafter, a review of various administrative actions
including promotion that ought to have been made, but could not be made
on account of the de-notification, was undertaken. The petitioner was given
the benefit with effect from 01.04.2008, and he was promoted to the post of
Joint Area Organiser.
14. Having regard to these facts, a mere circumstance that there was some
delay - perhaps of a few months, in the constitution of the DPC to consider
and recommend the eligible names of officers to the post of Area Organiser
ipso facto would not constitute malafide. This Court has examined the
pleadings before the Tribunal; no specific instances were highlighted as to
why the respondent/applicant was allegedly singled out to be deprived of
due consideration, or why the DPC was delayed, allegedly intentionally to
deprive him the benefit of promotion.
15. As far as allegations of undue favour being shown to the other officers
W.P.(C.) No.6708/2013 Page 6 of 7
and employees are concerned, we notice that in two instances i.e. in the
cases of Sh. Sarat Adhikari (the applicant in O.A. No.1712/2011) and Sh.
R.D. Thakur (the applicant in O.A. No..2104/2009), the relief was granted
on account of the Tribunal's order. Those orders of the Tribunal are also
before the Court. They are essentially unreasoned and have not taken into
account the circular/office memorandum dated 12.10.1998. As far as the
instance of Sh. R.C. Sharma is concerned, this Court notices that in reply to
para 4.15 of the Original Application, the UOI had stated that since juniors
had been given the promotion while he was in service, he could not be
denied that benefit. These aspects have not been contradicted anywhere in
the pleadings. As a result, it is held that the respondent/applicant's reliance
on the above instances is of no avail.
16. In the light of the above discussion and especially in the light of the
law declared in K.K. Vadera (supra) and Baij Nath Sharma (supra) as
noticed consistently by the three Division Bench ruling of this Court, the
present petition has to succeed. The present writ petition is, accordingly,
allowed. The impugned order is, therefore, set aside. Parties are left to bear
their respective costs.
S. RAVINDRA BHAT, J
VIPIN SANGHI, J.
AUGUST 04, 2014 sr W.P.(C.) No.6708/2013 Page 7 of 7