Central Administrative Tribunal - Mumbai
Digamber Narayan Desai vs Defence on 22 November, 2024
1 OA No.157, 159 & 160 of 2023
CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAI BENCH, CAMP AT GOA
ORIGINAL APPLICATION Nos.157, 159 & 160 OF 2023
Dated this Friday, the 22nd day of November, 2024
CORAM : HON'BLE MR. UMESH GAJANKUSH, MEMBER (J)
HON'BLE MR. SANTOSH MEHRA, MEMBER (A)
1. Babuso Govind Naik, Residing at: House No.S12,
Sonar Bhat, Verem, Bardez, Goa 403 114,
Email: [email protected],
(M) 8805426117.
2. Pundalik Baboso Satardekar,
Residing at: House No.20, Podxiro Ward, Bogamalo,
Chicolna, Vasco-da-Gama, Goa 403 806,
Email : [email protected],
(M) 9420993394.
3. Prabhakar Rama Gauns,
Residing at : House No.23, Bandh-Calapur, Santacruz,
Panaji, North Goa, Goa 403 005.
Email: [email protected],
(M) 8411839562.
4. Ashok Nagesh Chipkar,
Residing at: House No.114,
Pandavwadi Head Land Sada, Mormugao,
Vasco, Goa, 403 804,
Email: [email protected],
(M) 9850485195.
5. Rupo Bhiku Gauns,
Residing at: House No.24, Bandh-Calapur, Santacruz,
PANAJI, North Goa, Goa 403 005,
Email : [email protected],
(M) 8390541308. - Applicants in OA 157/2023
Page 1 of 29
2 OA No.157, 159 & 160 of 2023
1. Digamber Narayan Desai,
Residing at House No.230/4,
Behind Gomes Bakery, Driver Hill,
Vasco-Da-Gama, Goa 403 802,
Email: [email protected],
(M) 9923568245.
2. Krishna Fati Naik, Residing at: S-3, 2nd Floor,
Lotlikar Apartment, Near Curti Panchayat,
Naga Masjid Curti, Ponda, Goa 403 401,
Email : [email protected],
(M) 9545322515.
3. Anant Vasudev Chavan, Residing at : Flat No.1,
Upper Ground Floor, Aman's Vivenda Goes Building,
Opposite Mangor Sports Club, Mangor,
Vasco-da-Gama, Goa 403 802,
Email: [email protected]
(M) 9764006884.
4. Shankar Bhiku Thanekar, Residing at : House No.232,
Dabos Valpoi, Sattari Goa 403 506,
Email: [email protected],
(M) 9767701926. - Applicants in OA 159/2023
1. Balakdas Vithoba Dhargave,
Residing at: C/o Manoj Mor, A-74, Radha Krishna Niwas,
Aframent Wada, Near Shantaduraga Temple Reis Magus
Verem Bardez, Goa 403 114,
Email: [email protected],
(M) 84211 49980.
2. Stepen Francis Topno, Residing at: Newton Apartments II
Flat No.G-3, Ground Floor, Mangor Hill,
Vasco-da-Gama, Goa 403 802,
Email: [email protected],
(M) 9423413725.
3. Mangalappa Dhirappa Lamani,
Residing at House No.44, Near Shivanand Temple,
Page 2 of 29
3 OA No.157, 159 & 160 of 2023
Sancoale, Zuarinagar, South Goa 403 726,
Email: [email protected],
(M) 9096033163. - Applicants in OA 160/2023
(By Advocate Shri Anurag R. Saxena)
Versus
1. Union of India, through the Secretary to Govt. of India,
Ministry of Defence, South Block, New Delhi 110 001.
2. The Director General (Pers), Engineer-in-Chief's Branch,
Integrated HQs of MoD (Army), Kashmir House,
Rajaji Marg, New Delhi 110 011.
3. The Chief Engineer, Headquarters, Southern Command,
Pune 411 001.
4. Chief Engineer (Navy), Mumbai,
26 Assaye Building, Colaba, Mumbai 400 005.
5. The Commander,
The Commander Works Engineers (Navy),
Military Engineering Service (MES), Vasco-da-Gama,
Goa 403 802. - Respondents in all the OAs
(By Sr. Advocate Shri R.R.Shetty a/w Shri D.A.Dube
Advocate)
Reserved on 04.10.2024
Pronounced on 22.11.2024
COMMON ORDER
Per : Umesh Gajankush, Member (J)
In this batch of three Original Applications, common question is involved and the applicants are claiming similar reliefs.
Page 3 of 29 4 OA No.157, 159 & 160 of 2023
2. Both the learned counsel for the parties have advanced their arguments in Original Application No.159/2023 and, therefore, the facts stated in the Original Application No.159/2023 are taken into consideration while passing the final order.
3. In Original Application No.159/2023, the applicants are seeking the following reliefs :
"8.01. The Hon'ble Tribunal may be pleased to call for the records from the Respondents and after perusal and examination of the same to hold and declare that the Applicant are entitled for grant of the promotional benefits to the post of Master Craftsman (MCM) for the vacancy year 2018(T) in view of the instructions contained in Office Memorandums dated 28.1.2015, 23.4.2015 and 27.10.2016 issued by Govt. of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel & Training) and that the Office Memorandum No.22011/4/98-Estt(I) dated 12.10.1998 is applicable to normal circumstances and not in the case of delayed DPC.
8.02. The Hon'ble Tribunal may be pleased to direct the Respondents to grant all the attendant benefits to the Applicants for promotion to the post of Master Craftsman (MCM) against the vacancy year 2018(T) w.e.f. 1.4.2018.
8.03. The Hon'ble Tribunal may be pleased to direct the Respondents to grant all the consequential benefits to the Applicants from 01.04.2018 on promotion against the vacancy year 2018(T) vide promotion order dated 23.11.2021, including re-fixation of their pension with payment of arrears from the date of their superannuation respectively.
Page 4 of 29 5 OA No.157, 159 & 160 of 2023 8.04. To award the costs and to pass any further order/s as this Hon'ble Tribunal may deem fit and proper in the conspectus of facts and nature of the case." 3(a). The brief facts of the case are that the applicants were appointed on the post of Mate in various trades under the office of the Commander Works Engineer (Navy), Military Engineering Services, Vasco-da-Gama, Goa on different dates as stated in paragraph No.4.1 of the Original Application. It is further stated that they were promoted on the basis of Skilled, thereafter, on the post of Highly Skilled and Highly Skilled-I. The details of which are as under :
Names Mate Skilled Highly Highly
Skilled Skilled-I
Digamber 15.10.1984 25.04.1988 20.05.2003 01.01.2006
N. Desai
Krishna F. 01.02.1990 08.11.1994 20.05.2003 01.01.2008 Naik Anant V. 30.09.1989 19.08.1995 20.05.2003 15.10.2012 Chavan Shankar B. 25.04.1988 06.07.1994 20.05.2003 01.01.2006 Thanekar 3(b). It is further stated that the next promotional post from the post of Highly Skilled-I is Master Craftsman (MCM) for which no Departmental Promotion Committee (DPC) was convened from the years 2016 to 2020 and no reasons whatsoever was given by the respondents to the applicants for Page 5 of 29 6 OA No.157, 159 & 160 of 2023 not conducting the said DPC meeting for the said period. According to the applicants, before superannuation of the applicants, the last DPC meeting was conducted in April, 2015 and the subsequent DPC meeting was conducted in the year 2021 by the respondents for promotion to the posts of MCM for the vacancy years of 2017-18, 2018(T) and 2019 after the applicants superannuated from the posts of Highly Skilled-I in their respective trades. The said action of the respondents in convening DPC meeting after a gap of considerable period of time for the said posts of MCM is in defiance of OMs dated 28.01.2015, 23.04.2015 and 27.10.2016 issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions (DoPT) for holding the regular DPC meetings as delays in promotion affects career progression of employees and affects the manpower planning. Thus, the action of the respondents in clubbing all the vacancies for the posts of MCM for the vacancy years of 2017-2018, 2018(T), 2019 and 2020 is against the Government policy and Government instructions on the subject, resulting and culminating in disadvantage/monetary loss to the Government employees without any fault on their parts.
Page 6 of 297 OA No.157, 159 & 160 of 2023 3(c). The applicants have also placed on record a copy of Office Memorandum No.22011/4/2013-Estt.(D) dated 28.01.2015 which provides initiating action, well in advance of the commencement of the vacancy year so as to have the approved select panels ready before start of the vacancy year and to ensure timely promotions of the employees. 3(d). It is also stated that as per the Office Memorandum No.22011/1/2011-Estt(D) dated 23.04.2015 issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions (DoPT) which provides timelines for various events involved in the pre/post DPC related actions. All the Ministries/Departments were impressed upon from time to time to adhere to the prescribed timeline so as to ensure that the panel is ready in time and is utilized as and when the vacancies arise during the course of the vacancy year.
3(e). The objective of Office Memorandum No.22011/1/2011-Estt(D) dated 27.10.2016 issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions (DoPT) that it has taken cognizance of many promotion posts lying vacant due to abnormal delay in conveying DPCs. The objective of timely promotions of Page 7 of 29 8 OA No.157, 159 & 160 of 2023 employees in various Ministries/Departments can be achieved only by holding DPC meetings. All Ministries/Departments were again advised to ensure strict compliance of instructions in order to achieve the desired objectives of timely convening of DPCs/preparation of approved select panels within the prescribed time frame.
3(f). It is stated that all the applicants superannuated from the posts of Tradesman Highly Skilled-I (feeder post for promotion to the post of MCM). Applicant No.1 superannuated on 31.03.2020, applicant No.2 superannuated on 30.11.2020, applicant No.3 superannuated on 28.02.2021 and the applicant No.4 superannuated on 30.01.2020. 3(g). It is stated that the respondents promoted all the applicants to the post of Master Craftsman (MCM) in the pay scale of Rs.9,300-34,800/- with Grade Pay of Rs.4,200/- (Pay Band-II) for the vacancy year 2018(T) in their respective trades vide promotion order dated 23.11.2021 (Annexure A-5). However, no benefits were extended and, therefore, the applicants have submitted their representation dated 19.01.2022 and 20.01.2022 respectively to the respondent No.5 for extending all attendant benefits of their promotion to Page 8 of 29 9 OA No.157, 159 & 160 of 2023 the post of Master Craftsman for the vacancy year 2018(T) w.e.f. 01.04.2018. Unfortunately, the respondents did not reply to the said representations which is in clear defiance of DoPT OM dated 11.01.2022 regarding representations made by the government employees to be disposed of within a maximum period of six weeks. Therefore, the applicant No.1 applied under Right to Information Act, 2005 to respondent No.5 to seek information for conducting or delay in Departmental Promotion Committee meetings for promotion to the posts of Master Craftsman for the period from 2016 to 2021 against vacancy years 2017-2018, 2018(T) and 2019.
3(h). In response to the aforesaid Right to Information Act (RTI) query, it is informed that the establishment sanction for the years 2018-2019, 2019-2020 and 2020-2021 were not received in time. It is also informed that all criteria details asked from lower formations for conducting the Departmental Promotion Committee meetings were received late and that there was critical deficiency of staff and Covid-19 restrictions from March, 2020 onwards. According to the applicants, the reasons provided by the respondents in reply dated 03.01.2023 to the RTI application dated 05.12.2022 are Page 9 of 29 10 OA No.157, 159 & 160 of 2023 arbitrary, capricious and frivolous. Therefore, the applicants are compelled to file this application for redressal of their grievance and for appropriate directions to the respondents.
4. After notice, the official respondents have filed their reply and contested the OA. It is stated that the reply to a RTI query cannot give a cause of action for invoking the jurisdiction of this Tribunal. The alleged cause of action is also clearly barred by limitation and deserves to be rejected on this ground alone. It is, however, categorically accepted that "the respondents respectfully submit that it is a fact that as per DPC proceedings, the applicant become eligible for grant of promotion for the post of Tradesman Highly Skilled-1 to MCM (respective categories) for the year 2019 and 2020". 4(a). It is further stated that the DPC for the year 2016- 2017 for the promotional post of MCM were conducted and promotions granted to the eligible employees during 2017 vide order dated 06.11.2017 (Annexure R-2). The DPC Board for the year 2017-2018 conveyed by the HQ CE (Navy) Mumbai vide convening order No.15000-B/MCM/BP/112/E1 B(2) dated 18.11.2017 (Annexure R-3) and letter dated 26.03.2018 (Annexure R-4). The completed board proceedings was Page 10 of 29 11 OA No.157, 159 & 160 of 2023 submitted to HQ CE (Navy) Mumbai vide letter No.10363/258/E INB dated 30.05.2018 (Annexure R-5). However, the same was returned with observations for resubmission vide HQ CE (Navy) Mumbai letter dated 19.06.2018 (Annexure R-6) which was resubmitted the Board duly rectifying the observations vide letter dated 17.08.2018 (Annexure R-7).
4(b). Further, the DPC Board for 2017-2018 was returned vide HQ CE SC Pune letter dated 27.09.2018 (Annexure R-8A) and vide letter dated 05.10.2018 (Annexure R-8B) with the observations for want of APAR/PPAR grading in consideration to HQ CE SC Pune letter No.150101/4/Ref Vac/799/E1B (R- DPC) dated 25.06.2018 (Annexure R-9). In view of the averments and documents enclosed in the reply, it is submitted that DPC for the year 2018(T), 2019, 2020, 2021 & 2022 was not finalized in time due to non-receipt of Establishment Sanction for the year 2018-2019, 2019-2020, 2020-2021 and 2021-2022 which was finally received from Directorate General (Pers) HQ MES, New Delhi letter dated B.20103/ESH/71/E1C(1) dated 26.04.2021 (Annexure R-20) and only thereafter, by following due procedure, order dated Page 11 of 29 12 OA No.157, 159 & 160 of 2023 23.11.2021 (Annexure R-26) was issued.
4(c). It is stated that in order dated 23.11.2021, applicants were promoted to the post of MCM in respective categories. However, due to non-assumption of charge of promotion posts, due to their earlier retirement, they could not get the benefit of promotion in view of OM dated 14.11.2014 read with OM dated 12.10.1998 (Annexure R-25). It is stated that para No.4 of the order dated 23.11.2021 specifically mention that "those individuals who retired from service but are included in selected panel of respective year be treated as per DoPT OM No.22011/4/98-Esst (D) dated 12.10.1998" and the relevant portion of the said OM is reproduced hereunder :-
"2. Doubts have been expressed in this regard as to the consideration of 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.
3. ... It may be pointed out in this regard that there is now 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 year- wise panel(s), who were within the zone of consideration for the relevant year(s). According to 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 year-wise zone of consideration/panel and, consequently, their juniors are Page 12 of 29 13 OA No.157, 159 & 160 of 2023 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."
4(d). In respect of representation dated 21.01.2022, it was stated that message was conveyed through Union represented Shri Babu Upardekar, Chairman, MES Employees Union Goa to report to CWE (Navy) Vasco for clarification and discussion regarding application dated 21.01.2022 but none of the applicant visited in person for discussion. It is stated that as per the settled position of law, the promotions are to be only granted prospectively and not from the date on which the vacancy is arisen. In the present case, since the promotions came to be eventually cleared or granted on the dates on which the applicants had ceased to be service, therefore, there was no question of granting any benefit to the applicants including that of promotion prior to the retirement or from the date on which the vacancy arose. The respondents have relied upon the proposition of law laid down by the Hon'ble Supreme Court in the case of Union of India & Ors. Vs. K.K.Vadera & Ors reported in 1990 SCC (L&S) 127 decided Page 13 of 29 14 OA No.157, 159 & 160 of 2023 on 26.10.1989 (Annexure R-28). Further, it is mentioned that during 2020-2021 due to Covid-19 Pandemic restrictions, the progress of the work was completely hampered. Even though the respondents have taken speedy action on receipt on establishment sanction to complete the Board and finalize the promotions during 2021. Therefore, on the basis of reply, the official respondents have prayed for dismissal of the OA.
5. Thereafter, rejoinder was submitted by the applicant explaining and elaborating the stand taken by the respondents in their reply and on the basis of OM No.22011/4/2013-Estt(D) dated 08.05.2017 stated that there should be no delay in holding of DPCs and the system should be so streamlined that the delay, if any, are minimized. It is further stated that after promotion order dated 23.11.2021, they have submitted representation on 20.01.2022. However, no response was received in the next six months and, therefore, in view of Section 21(1)(b), the present Original Application has been filed within one year from the date of expiry of the said period of six months and, therefore, the contention of the respondents is that the Original Application is barred by limitation is denied. Page 14 of 29 15 OA No.157, 159 & 160 of 2023
6. Thereafter, Additional Affidavit was also filed on behalf of the respondents placing on record OM No.22011/5/86/Estt(D) dated 10.04.1989 to submit that the applicants had retired as on date of promotion. Hence, though, they have been included in select panel, they could not be given promotion strictly as per the Government policy on subject. It is also stated that due to unavoidable circumstances, the said DPC could not be conducted in time. These include administrative constraints as well as reluctance on the part of industrial associations to accept applicability of performance parameters of APAR which needed clarification to be processed to higher HQ thus causing delay, Covid conditions also restricted the smooth conduct of DPCs for more than one year. However, immediately after administrative constraints were removed and mandatory requirement of performance criteria as per APAR were accepted, the DPCs were processed and finalized.
6(a). It is stated that there is no rule that provides for retrospective effect to promotions as per DoPT norms and the promotion orders issued are correct. None of the applicants' juniors have been promoted before the applicants to the post Page 15 of 29 16 OA No.157, 159 & 160 of 2023 of Master Craftsman and hence, the OA is liable to be dismissed.
7. Learned counsel for the applicant Shri Anurag R. Saxena vehemently argued that the impugned action of non- granting the benefits of the promotional post of the Craftsman on the ground that on the date of issuance of order dated 23.11.2021, applicants have stood retired in spite of the fact that they have been selected for the promotion on the basis of Master Craftsman. It is contended that in view of the Office Memorandum dated 20.01.2015, 23.04.2015 and 27.10.2016, the respondents were obliged to convene the DPC in respective years and in time bound manner.
7(a). It is further contended that after the knowledge of the order dated 23.11.2021 within a reasonable time, in the month of January, 2022, representations were submitted to the Competent Authorities with a prayer for granting the attendant benefits including pay refixation, revised annual increments and revision of pensionary benefits. It is contended that in view of the representation dated 20.01.2022 (Annexure A-6), it is clear that detailed representation mentioning relevant Office Memorandum and the judgments on the subjects, prayer was Page 16 of 29 17 OA No.157, 159 & 160 of 2023 made to the official respondents. It is further submitted that the Office Memorandum dated 11.01.2002 (Annexure A-7) clearly provides that all the Ministries/Departments were obliged to dispose of all the representations made by the Government employees within a period prescribed in the said OM. However, at one hand, no steps have been taken for disposal of the representation and on the other hand, after filing of the Original Application, the respondents are contesting the Original Applications on the grounds of delay, which is arbitrary, unreasonable and unfair. 7(b). It is further contended that to justify delayed DPCs, the reasons of administrative constraints and the Covid-19 Pandemic were assigned. However, on the other hand, for their own defaults/delay, respondents are depriving the applicants from extending the legitimate benefits flowing from their promotion order only on the ground the date of issuance of promotion order, the applicants stood retired on superannuation. The impugned order and the stand taken by the respondents is arbitrary, unreasonable, unfair and violative of Article 14 and 16 of the Constitution of India. Page 17 of 29 18 OA No.157, 159 & 160 of 2023 7(c). During the course of the arguments, the learned counsel for the applicant has placed reliance on the judgment of the Hon'ble Supreme Court in the case of P.N. Premchandran Vs. State of Kerela and others reported in (2004) 1 SCC 245 in which the Hon'ble Supreme Court categorically held that delay in conveying the DPC being administrative lapse, promotees cannot be made to suffer for no fault on their part. He has also relied on the judgment passed by this Tribunal in OA No.625/2012 dated 27.07.2017 in the case of Smt. Neelima Arun Dighe Vs. Union of India & Another which was subsequently followed by the Coordinate Bench of this Tribunal (Mumbai Bench) in the case of Yashwant Tukaram Dabhane Vs. Union of India & Others in OA No.190/2021 decided on 14.08.2024. On the aforesaid contentions and judgments, it is submitted that the applicants are entitled for the relief claimed in the Original Application.
8. On the other hand, Shri R.R.Shetty, learned Senior Counsel alongwith Shri D.A.Dube, learned counsel vehemently argued that at the first place, the present Original Application suffers from delay and laches, as the original cause of action accrued much earlier to filing of the Original Page 18 of 29 19 OA No.157, 159 & 160 of 2023 Application. It is further contended that reply to RTI query cannot give cause of action for invoking the jurisdiction of this Tribunal. Learned Senior Counsel strongly relied upon the judgment of the Hon'ble Supreme Court in the case of S.S.Rathore Vs. State of Madhya Pradesh reported in (1989) 4 SCC 582 and in the case of Ramesh Chand Sharma Vs. Udham Singh Kamal and others, reported in (1999) 8 SCC 304 and Union of India and others Vs. M.K.Sarkar reported in (2010) 2 SCC 59 and on that basis, it is submitted that the present OA is liable to be dismissed on the ground of delay. 8(a). Regarding the merits, on the basis of the Office Memorandums filed along with the reply, it is submitted that the names of the applicants were included. However, OM dated 12.10.1998 (Annexure R-31) clearly provides that retired employee, however, have no right for actual promotion. Further, it is submitted that as per Office Memorandum dated 10.04.1989 (Annexure R-3) and the guidelines on Departmental Promotion Committee Clause 17.10 clearly provides that "the general principle is that, promotion of officers included in the panel would be regular from the date of validity of the panel or the date of their actual promotion, whichever is Page 19 of 29 20 OA No.157, 159 & 160 of 2023 later. He has also placed reliance upon the judgment passed by the Hon'ble Supreme Court in the case of Union of India and others Vs. K.K.Vadera and others reported in 1989 Supp (2) SCC 625 to submit that the applicants are not entitled for the promotion from the respective dates and not entitled for any relief.
9. After hearing the learned counsel for all the parties at the first stage, it is necessary to consider the arguments raised by the learned Senior Counsel for the respondents in respect of delay in filing the present Original Applications. 9(a). In case of S.S.Rathore (supra), the Hon'ble Supreme Court in paragraph No.20, 21 and 22 observed as under :
"20. We are of the view that the cause of action shall be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority where a statutory remedy is provided entertaining the appeal or representation is made and where no such order is made, though the remedy has been availed of, a six months' period from the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have first arisen. We, however, make it clear that this principle may not be applicable when the remedy availed of has not been provided by law. Repeated unsuccessful representations not provided by law are not governed by this principle.
21. It is appropriate to notice the provision regarding limitation under Section 21 of the Administrative Tribunals Act. Sub-section (1) has prescribed a period of one year for making of the application and power of condonation of delay Page 20 of 29 21 OA No.157, 159 & 160 of 2023 of a total period of six months has been vested under sub- section (3). The Civil Court's jurisdiction has been taken away by the Act and, therefore, as far as Government servants are concerned, Article 58 may not be invocable in view of the special limitation. Yet, suits outside the purview of the Administrative Tribunals Act shall continue to be governed by Article 58.
22. It is proper that the position in such cases should be uniform. Therefore, in every such case only when the appeal or representation provided by law is disposed of, cause of action shall first accrue and where such order is not made, on the expiry of six months from the date when the appeal was filed or representation was made, the right to sue shall first accrue. Submission of just a memorial or representation to the Head of the establishment shall not be taken into consideration in the matter of fixing limitation."
10. In the present case, it is specifically mentioned by the applicant that after order dated 23.11.2021 (Annexure A-5), they have submitted to the representation. In OA they have relied upon OM dated 11.01.2002 (Annexure A-7) issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training which provides time line for the authorities to decide the representations. Once DoPT has issued the memorandum on the subject of decision of representation, then it is necessary for the authorities to consider and decide the pending representation. The said OM creates no bar nor classifies any category of cases in which above Page 21 of 29 22 OA No.157, 159 & 160 of 2023 representations are required to be submitted. Since, after order dated 23.11.2021 (Annexure A-5), the representation was submitted and after waiting for reasonable time when representation was not decided, then the applicants have filed the present OA. Under these circumstances, the reliance placed by the learned counsel for the respondents on the basis of S.S.Rathore (supra) is not tenable.
11. In the case of Ramesh Chand Sharma (supra), the Hon'ble Supreme Court on facts, it was found that the representation of the said applicant was rejected on 02.07.1991, whereas the Original Application under Section 19(1) of the Tribunals Act was filed on 02.06.1994 i.e. after three years and, therefore, given facts and consideration in paragraph No.7 observed as under :
"7. On perusal of the materials on record and after hearing counsel for the parties, we are of the opinion that the explanation sought to be given before us cannot be entertained as no foundation thereof was laid before the Tribunal. It was open to the first respondent to make proper application under Section 21(3) of the Act for condonation of delay and having not done so, he cannot be permitted to take up such contention at this late stage. In our opinion, the O.A. filed before the Tribunal after the expiry of three years could not have been admitted and disposed of on merits in view of the statutory provision contained in Section 21(1) of the Administrative Tribunals Act, 1985. The law in this behalf is now settled, see Secretary to Government of India and Others v. Shivam Mahadu Page 22 of 29 23 OA No.157, 159 & 160 of 2023 Gaikwad, [1995] Supp. 3 SCC 231."
Therefore, it cannot be said that the present Original Application is time barred.
12. The judgment of M.K.Sarkar (supra) is also not helpful to the respondents as the cause for filing the present Original Application accrued to the applicant, only by order dated 23.11.2021 (Annexure A-5) when the applicants although selected for the promotion to the post of MCM and denied the attended benefit on the grant of their retirement on the date of the issuance of the order. Further, the claim of the applicant cannot be said to be stale or dead issue.
13. So far as merit is concerned, it is not in dispute that there was delay in convening the DPC, which may be on justifiable grounds like administrative constraints or the Covid- 19 situations. It is also not in dispute and in fact, in their reply, the respondents have categorically admitted that "applicants became eligible for grant of promotion for the post of Highly Skilled I to MCM (respective categories) for the year 2019 and 2020" and further as per OM dated 12.10.1998, their names have been included and order dated 23.11.2021 clearly discloses that the applicants were selected for the promotion. Page 23 of 29 24 OA No.157, 159 & 160 of 2023
14. Under these circumstances, only point require for consideration by the Tribunal is whether the applicants are entitled for consequential benefits in respect of their promotion on the post of MCM in spite of the fact that on the date of issuance of the order dated 23.11.2021, they have been retired on attaining the age of superannuation on their respective dates of their retirement.
15. To appreciate the aforesaid point, the judgment on which the learned counsel for the respondents has relied i.e. K.K.Vadera (supra) of the Hon'ble Supreme Court needs consideration. In the aforesaid case, the Hon'ble Supreme Court taking into account the provisions of the Advanced Research and Development Rules, 1970 was pleased to observe as under :
"5. There is no statutory provision that the promotion to the post of Scientist 'B' should take effect from 1st July of the year in which the promotion is granted. It may be that, rightly or wrongly, for some reason or other, the promotions were granted from 1st July, but we do not find any justifying reason for the direction given by the Tribunal that the promotions of the respondents to the posts of Scientists 'B' should be with effect from the date of the creation of these promotional posts. We do not know of any law or any rule under which a promotion is to be effective from the date of creation of the promotional post. After a post falls vacant for any reason whatsoever, a promotion to that post should be from the date the promotion is granted and Page 24 of 29 25 OA No.157, 159 & 160 of 2023 not from the date on which such post falls vacant. In the same way when additional posts are created, promotions to those posts can be granted only after the Assessment Board has met and made its recommendations for promotions being granted. If on the contrary, promotions are directed to become effective from the date of the creation of additional posts, then it would have the effect of giving promotions even before the Assessment Board has met and assessed the suitability of the candidates for promotion. In the circumstances, it is difficult to sustain the judgment of the Tribunal."
16. In the present case, the official respondents have placed their reliance for not extending the benefit of promotion after retirement on the basis of guidelines as well as the Office Memorandum of the DoPT. To appreciate the aforesaid, relevant clause 17.10 of the guidelines/consolidated instruction is reproduced hereinbelow :
"17.10. The General Principle is that, promotion of officers included in the panel would be regular from the date of validity of the panel or the date of their actual promotion, whichever is later."
17. The starting of the aforesaid provision itself shows that it is a general principle but in the present case, the respondents themselves have admitted delay in DPC on the ground of administrative constraints and Covid-19 situations. On one hand, the respondents appear to be justifying their delay on the ground of exceptional circumstances i.e. Covid- Page 25 of 29 26 OA No.157, 159 & 160 of 2023 19 situation for delay in DPC and on the other hand, are denying the benefits to the applicants on the ground that they stood retired on the date of the issuance of the order.
18. When the rights of the applicants have already been crystalized by the department so far as promotion on the post of Master Craftsman by order dated 23.11.2021 then curtailment of benefit flowing from the order is arbitrary and unreasonable. It is pertinent to mention that when there is no fault of the applicants, then the denial of the legitimate right of the applicants accrued in respect of the only monetary benefit of promotional post is arbitrary, unreasonable and unfair. The respondents are not permitted to reprobate and abrogate in the same breath. So far as OM dated 27.02.2013 (Annexure R-
30) is concerned and the same is in respect of Under Secretary Select List of 2009-2010 and the same is not applicable to be present set of facts.
19. In case of P.N.Premchandran (supra) pleased to observe as under :
"7. It is not in dispute that the posts were to be filled up by promotion. We fail to understand how the appellant, keeping in view the facts and circumstances of this case, could question the retrospective promotion granted to the private Page 26 of 29 27 OA No.157, 159 & 160 of 2023 respondents herein. It is not disputed that in view of the administrative lapse, the Departmental Promotion Committee did not hold a sitting from 1964 to 1980. The respondents cannot suffer owing to such administrative lapse on the part of the State of Kerala for no fault on their part. It is also not disputed, that in ordinary course they were entitled to be promoted to the post of Assistant Directors, in the event, a Departmental Promotion Committee had been constituted in due time. In that view of the matter, it must be held that the State of Kerala took a conscious decision to the effect that those who have been acting in a higher post for a long time, although on a temporary basis, but were qualified at the time when they were so promoted and found to be eligible by the Departmental Promotion Committee at a later date, should be promoted with retrospective effect."
20. Further, in case of Smt. Neelima Arun Dighe (supra), this Tribunal in para 13 observed which was followed by the Coordinate Bench of this Tribunal in Yashwant Tukaram Dabhane as under :
"13. In the present case, it is quite obvious that the applicant had suffered a loss of promotion and the consequent monetary benefits for no fault of hers. It is a well settled law that no one should be penalized for no fault of his (Mohd. Ghazi Vs. State of M.P. 2000(4) SCC 342). In the present case, the delay and the repeated communication between the department and the UPSC and the furnishing of incomplete information are entirely responsibility of the administrative department and there is no need to punish the applicant because of this. As per the principle established by settled law, the mistake of a department cannot recoil on its employees (Union of India Vs. Sadjama Khanna, C.A. No.8208/01 & Nirmal Chandra Bhattacharjee Vs. Union of India, Page 27 of 29 28 OA No.157, 159 & 160 of 2023 1991 Supp (2) SCC 363). In M.V. Thimmaiah Vs. UPSC, CA No.8028/2011 it has been observed that if there is a failure on the part of the officers to discharge their duties the incumbent should not be allowed to suffer."
21. So far as the contention of the learned Senior counsel for the respondents that RTI application dated 03.01.2023 (Annexure A-1) in the Original Application cannot give cause of action for invoking the jurisdiction of this Tribunal is concerned, although in particular of the order, the applicants have challenged the aforesaid information but in the relief clause, no relief has been claimed. Even otherwise, since after the submission of the representation in respect of order dated 23.11.2021 (Annexure A-5), no reply was sent by the respondents who was duty bound to consider the representation as per the Office Memorandum dated 11.01.2022. Under these circumstances, if the RTI application was submitted and reasons were disclosed through reply dated 03.01.2023 (Annexure A-1), then these circumstances challenge made by the applicants to the impugned action cannot disentitle the applicants for claiming the relief by way of present Original Application.
Page 28 of 29 29 OA No.157, 159 & 160 of 2023
22. Thus, in view of the aforesaid discussions, the Original Applications are allowed. The respondents are directed to extend the consequential benefits of order dated 23.11.2021 (Annexure A-5) to the applicants from the date of their entitlements including revision of their pension with payment of arrears from the date of their superannuation respectively in respect of the post of Master Craftsman within a period of 90 days from the date of receipt of a certified copy of the order.
23. The aforesaid directions are applicable mutatis mutandis to the connected cases in OA Nos.157 & 160 of 2023.
24. Pending MAs, if any, stand closed. No costs.
(SANTOSH MEHRA) (UMESH GAJANKUSH)
MEMBER (A) MEMBER (J)
Digitally signed by Khushboo Mittal Gupta
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