Central Administrative Tribunal - Delhi
Om Prakash vs Govt. Of Nctd on 25 April, 2018
1 OA No. 3043/2013
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
OA No.3043/2013
M.A. No.2309/2013
Reserved on:12.04.2018
Pronounced on:25.04.2018
HON'BLE MR. V. AJAY KUMAR, MEMBER (J)
HON'BLE MS. NITA CHOWDHURY, MEMBER (A)
1. Shri Om Prakash
S/o Late Shri Gian Singh
R/o 162, Delhi Admn. Flats,
Karkardooma, Delhi-92,
2. Shri O.P. Sapra
S/o Late Shri T.D. Sapra
R/o N-22, Dr. Mukherjee Nagar,
Delhi-110 009. ...Applicants
(By Advocate: Mr. M.K. Bhardwaj)
Versus
1. Govt. of NCT of Delhi
Through the Chief Secretary,
5th Floor, Delhi Sachivalaya,
New Delhi.
2. The Secretary-cum-Commissioner,
Labour Department,
GNCT of Delhi
5, Sham Nath Marg,
Delhi-110054.
3. Union Public Service Commission,
Through its Secretary,
Shahjahan Road,
New Delhi. .....Respondents
(By Advocate: Mr.Ankur Chhibber with Shri Bhanu Guta for
R-1&2
Mr. Amit Yadav and Shri Ravinder Aggarwal for R-3)
2 OA No. 3043/2013
ORDER
Hon'ble Ms. Nita Chowdhury, Member (A):
This Original Application (OA) has been filed by the applicants claiming the following reliefs:-
"(a) Quash and set aside the impugned orders placed at Annexure A-1 and A-2 to the limited extent stated in para 1 above.
(b) Direct the respondents to grant antedated promotion to the applicants to the post of Asstt. Labour Commissioner and w.e.f. the date when applicants completed the requisite length of service in the feeder grade of Labour Officer with all consequential benefits.
(c ) Direct the respondents to further consider the applicants for promotion to the next higher post of Deputy Labour Commissioner w.e.f. the date when applicants complete requisite length of service in the feeder grade of Asstt. Labour Commissioner with all consequential benefits and to promote the applicants as such forthwith.
(d) award costs of the proceedings".
2. The facts, in brief, are that applicant No.1, who belongs to SC category, was appointed as Inspecting Officer in Labour Department, Delhi Administration (now Govt. of NCT of Delhi) in the year 1989. Thereafter, he was promoted on ad hoc basis as Labour Officer vide order dated 11.10.2002 (Annexure A-3). Further, vide order dated 10.12.2007 (Annexure A-4) he along with others were given regular promotion but with prospective effect on the basis of a DPC meeting held on 24.10.2007. Aggrieved by denial of regular promotion with retrospective effect, i.e. 11.10.2002, applicant 3 OA No. 3043/2013 No.1 approached the Hon'ble Tribunal vide OA No. 675/2009. The said OA was disposed on 11.10.2002 as under:-
"13. In view of the foregoing, the claim of the applicants are found to be justified and the impugned orders are set aside. The respondents are directed to issue appropriate orders conferring them the benefits of regular promotion from the date of ad hoc promotion. Needless to say, as the applicants have actually been working in this capacity, they would be entitled to all consequential benefits including seniority".
3. The applicant No.2, Shri O.P. Sapra, belongs to general category and he too was denied promotion to the post of Labour Officer w.e.f. 19.09.2000, i.e. the date of ad hoc promotion to the said post. Aggrieved by the said order, he approached the Tribunal by filing OA No.981/2011 which was allowed on 22.12.2011 (Annexure A-6) by following the judgment given in the case of Ist applicant and same directions were also extended to him. In compliance of the aforesaid orders passed by the Tribunal in both the OAs, the respondents issued an order dated 02.03.2012 (Annexure A-
7) whereby both the applicants were promoted to the post of Labour Officer (LO), i.e. applicant No.1 w.e.f. 16.12.2002 and applicant No.2 w.e.f. 19.09.2002 respectively.
4. The applicants further aver that they were entitled to be promoted as Assistant Labour Commissioner (ALC) on completion of 5 years of service as LO. The respondents issued an order dated 17.01.2013 (Annexure A-1) whereby both the applicants were promoted to the said post of 4 OA No. 3043/2013 Assistant Labour Commissioner (ALC for short) with immediate effect but are seeking promotion from retrospective date, i.e., from date of vacancy of ALC post and from such date as when they completed 5 years of qualifying service for the post of ALC.
5. The applicants next contended that with reference to DOP&T OM dated 10.04.1989, they are entitled to retrospective promotion and the same has been denied to them illegally. Moreover, they have also not been given the benefits of the judgments passed in their cases by this Tribunal, which is against the law. They have also submitted that S/Shri S.C. Yadav, Lallan Singh, N.L. Kanojia and M.K. Gaur, all ALCs were given promotion with retrospective effect but the same has been denied to the applicants by the respondents. The applicants made representations on 21.2.2013 to grant them retrospective promotions as ALCs from 2007, but in vain. Hence they have filed this OA and prayed that the same be allowed and they be promoted as ALCs.
6. The learned counsel for the applicants placed reliance on judgment of the Hon'ble High Court of Delhi in W.P. (C ) 7423/2013 - Government of NCT of Delhi and Others Vs. Shri Rakesh Beniwal and Others decided on 04.08.2014. 5 OA No. 3043/2013 But the facts of this case have no relevance to the reliefs pressed in this OA.
7. The respondents have filed their reply and submitted that the relief claimed by the applicants cannot be granted as it is contrary to the settled principles of law that promotions can only be given prospectively. The applicants were working as Labour Officer (LO) on ad hoc basis w.e.f. 19.09.2002 and were regularised w.e.f. 10.12.2007. However, in compliance of the orders passed by the Tribunal in cases of both the applicants, they were regularised as LO with retrospective dates, i.e., w.e.f. 19.06.2002 and 16.12.2002 viz. from the dates of availability of the vacancies in the post of Labour Officers in the promotion quota. However, the applicants could not be promoted to the post of ALC with retrospective date, as they have not worked on the said post and DPC has recommended applicants promotion only from prospective date. Hence, they are not entitled for any relief.
8. They have further submitted that S/Shri S.C. Yadav, Lallan Singh, N.L. Kanojia and M.K. Gaur, all Assistant Labour Commissioners (ALCs) were given promotion with retrospective effect on the said post vide order dated 09.08.2011 as these officers were working on the said post w.e.f. 2002. These officers were regularised on the post of 6 OA No. 3043/2013 ALO retrospectively on the date of availability of vacancies of ALO in the promotion quota. The reliance placed by the applicants on the OM of DOP&T dated 10.04.1989 clearly provides for promotion only with retrospective date.
9. Lastly, the respondents submitted that earlier applicants were regularised from retrospective date because they were actually working on the post of Labour Officer on ad hoc basis and vacancies were also available, whereas for the post of ALC it is submitted that the applicants have not worked on the aforesaid post of ALC and as such promotion from backdate cannot be given.
10. We have heard the learned counsel for the parties and perused the pleadings.
11. The short point involved in this case is whether applicants are entitled to be promoted from retrospective date or not? The answer, to our mind, is in the negative. Nobody can claim promotion retrospectively as held by a catena of decisions of various courts.
12. The controversy involved in the present case has been dealt with in detail by this Tribunal in the case of Manjit Singh Vs. Govt. of NCT of Delhi and Others - OA No.1837/2013 decided on 09.09.2016. The relevant paragraphs of the said order reads as under:- 7 OA No. 3043/2013
".....The respondents have also stated that the advice of UPSC and DOP&T was also obtained for retrospective promotion w.e.f.
13.01.2004. UPSC in its reply dated 06.12.2012 advised that the promotion has to be prospective in terms of para 6.4.4 of the DOP&T OM dated 10.04.1989. To same effect is the opinion of the DOP&T. XXX XXX XXX
5. The controversy is clearly covered by a catena of judgments of the Apex Court in Union of India & others v K. K. Vadrra & others [1989 Supp (2) SCC 625]; Nirmal Chandra Sinha v Union of India & others [(2008) 14 SCC 29]; State of Uttaranchal & another v Dinesh Kumar Sharma [(2007) 1 SCC 683]; and Sk. Abdul Rashid & others v State of Jammu & Kashmir [(2008) 1 SCC 732]. A similar view has been expressed by the High Court of Delhi in Union of India & others v Vijender Singh & others [(176) 2011 DLT 247 (DB)].
Another Bench of this Tribunal in its judgment dated 08.09.2016 in OA No.3811/2012 - J. D. Vashisht & others v Union of India & others considered the entire controversy. It has been ruled that retrospective promotion is impermissible unless the rules so provide.........".
13. Similarly the Hon'ble High Court of Delhi in W.P. ( C) No. 8102 of 2012 and connected cases - UOI and Another Vs. K.L. Taneja and Other connected cases decided on 12.04.2013 held as under:-
"7. As we would proceed to note the law on the subject, we would find that to the normal rule of law that nobody can be promoted with a retrospective effect except the exception is that when there exist facts which necessitates so or there is a rule which 8 OA No. 3043/2013 permits so. Thus, the facts which necessitated the exception to be applied have to be specifically pleaded.
8. In the decision reported as 1987 (4) SCC 566 K.Madhavan & Anr. vs.UOI & Ors., the Supreme Court held that nobody can claim a right for appointment to a post as a matter of right. It was held that as a rule, retrospective appointment or promotion to a post should not be resorted to unless on a sound reasoning and foundation it becomes necessary to sparingly do so. With respect to scheduled DPCs, only if they were cancelled mala fide, arbitrarily or without any reasonable justification to the prejudice of an employee, could the Government in such a case, to undo the injustice caused, grant promotion from a retrospective date.
XXX XXX XXX
10. Relevant would it be to note that as per the decision there was no rule which was cited before the Court as per which promotion to the post had to be with retrospective effect i.e. from the date the post fell vacant. The observations of the Supreme Court that 'We do not know of any law' would mean that service jurisprudence does not jurisprudentially recognize retrospective promotions. The decision would therefore mean that unless a specific rule exists evidencing to the contrary, promotions take effect from the date the person is actually promoted and not retrospectively.
11. In the decision reported as (1998) 7 SCC 44 Baij Nath Sharma vs. Hon'ble Rajasthan High Court At Jodhpur & Anr., relying upon the law declared in K.K.Vadera's case (supra), since no rule was shown which could justify a retrospective promotion, and no mala fides pleaded or proved in delaying promotions, the Supreme Court held that the appellant, a Member of the Rajasthan Judicial Service, could not be promoted from the date a vacancy accrued in the Rajasthan Higher Judicial Service against which vacancy he was ultimately promoted.
12. The same view was reiterated in the decisions reported as AIR 2004 SC 3460 Sanjay K.Sinha & Ors. vs. State of Bihar & Ors., 2006 (13) SCALE 246 State of Uttaranchal & Ors. Vs.Dinesh Kr.Sharma and 2008 (14 ) SCC 29 Nirmal Chandra Sinha vs. UOI & Ors. The last decision i.e. in Nirmal Chandra Sinha's case (supra) referred to certain observations made by the Supreme Court in the decision reported as 1997 (8) SCC 89 UOI vs. B.S.Aggarwal which tends to show to the contrary, as being made on the special circumstances of that 9 OA No. 3043/2013 case and on humanitarian consideration (refer para 9 of the decision in Nirmal Chandra's case.)
13. In the decision reported as (2007) 1 SCC 683 State of Uttaranchal & Anr. vs. Dinesh kumar Sharma it was observed:-
"Respondent was working as a Subordinate Agriculture Services Group-I. Subsequently, he became eligible for promotion. A promotional post became vacant and thereafter, substantive appointment of Respondent to said post was made. Respondent claimed seniority and consequential benefit from date when promotional post became vacant. State Government rejected claim made by Respondent. On writ, Division Bench of High Court directed state to reconsider case of Respondent. Hence the appeal was filed which was allowed and it was held that under Rule 8 of Uttar Pradesh Government Servants Seniority Rules, 1991 a person appointed on promotion shall not get seniority of any earlier year but shall get seniority of year in which his/her appointment is made. Hence respondent was not entitled to seniority from date when promotional post became vacant as no retrospective effect could be given to order of appointment order under the Rules."
14. The decision is in line with the reasoning that unless a rule to the contrary exists, promotions cannot be made or directed to be made retrospectively".
14. Similarly, the Hon'ble Apex Court in Uttaranchal Forest Rangers' Assn. (Direct Recruit) v. State of U.P., (2006) 10 SCC 346, held as under:-
"We are also of the view that no retrospective promotion or seniority can be granted from a date when an employee has not even been borne in the cadre so as to adversely affect the direct recruits appointed validly in the meantime, as decided by this Court in Keshav Chandra Joshi v. Union of India [1992 Supp (1) SCC 272] held that when promotion is outside the quota, seniority would be reckoned from the date of the vacancy within the quota rendering the previous service fortuitous. The previous promotion would be 10 OA No. 3043/2013 regular only from the date of the vacancy within the quota and seniority shall be counted from that date and not from the date of his earlier promotion or subsequent confirmation. In order to do justice to the promotees, it would not be proper to do injustice to the direct recruits......".
15. Thus seen from any angle, we do not find any merit in the OA and the same deserves to be dismissed. Accordingly, the same is dismissed. No costs.
(NITA CHOWDHURY) (V. AJAY KUMAR)
Member (A) Member (J)
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