Central Administrative Tribunal - Delhi
Sandal Singh vs Union Of India Through on 22 March, 2011
Central Administrative Tribunal Principal Bench OA No.783/2009 New Delhi, this the 22nd day of March, 2011 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Sandal Singh ACIO-I (G), Gp. B Aged 63 years, S/o Late Shri Faquir Singh R/o WZ-19, Plot No.10, Partap Nagar, Jail Road, New Delhi 110 063. Applicant. (By Advocate : Shri S. S. Tiwari) Versus 1. Union of India through Secretary, Ministry of Home Affairs, Government of India, Central Sectt., North Block, New Delhi. 2. Director, Intelligence Bureau MHA, Govt. of India 35, New Complex, S. P. Marg, New Delhi. Respondents. (By Advocate : Ms. Jai Shree for Sh. A. K. Bhardwaj) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Pursuant to our orders dated 27.09.2010 in Review Application No.16/2010 in the present OA, we recalled our order dated 25.08.2009 for fresh adjudication of the issues involved in the OA No.783/2009.
2. Brief facts of the case would reveal that the Applicant was appointed as JIO-I (G) on 13.10.1999. He was promoted as ACIO-II (G) in April, 1979 and further promoted to the post of ACIO-I (C) on 16.08.1990. He superannuated on 31.03.2006. It is the case of the Applicant that 27 days after his retirement 69 colleagues of the Applicant including 49 juniors to him were promoted as Deputy Central Intelligence Officers (DCIO) Grade I/G. The promotion was undertaken through a DPC which met on 29.3.2006 and drew up the panel for vacancy year 2005-06. As he was not promoted due to his retirement, the Applicant has made a representation dated 7.12.2006 to the Respondents against denial of promotion to him as DCIO and sought promotion to the DCIO post against the vacancies of the year 2005-2006. Having no response, he submitted another representation on 13.11.2007 and followed up with a reminder on 18.02.2008. As no reply was given to him, he moved this Tribunal in OA No.1705/2008 which was disposed of by this Tribunal on 11.08.2008 (Annexure-A9) directing the Respondents to treat the OA as Applicants representation and convey their decision thereon to the Applicant. In compliance of the said direction, the Respondent No.2 considered the Applicants case and conveyed the decision to him on 07.11.2008 (Annexure-A1) whereby his representation was rejected being devoid of merits. Feeling aggrieved, against the said decision, the Applicant submitted a representation dated 9.02.2009 to the Respondents but as no reply was given to him, he approached this Tribunal in the current OA which was disposed of with the following orders:-
It could not be disputed during the course of arguments that this case is squarely covered by the decision of the Honble Supreme Court in Civil Appeal No.7347/1997 in the matter of S. Thakur vs. Union of India & Ors., decided on 22.02.2001 as also decision of this Tribunal in OA No.1519/2008 in the case of Sh. R. S. Gupta vs. Govt. of National Capital Territory of Delhi decided on 24.02.2009. We issue same directions in this case as were issued in OA No.1519/2008 (supra). However, the Respondents moved the Honble High Court of Delhi in WP (C) No.13477/2009 which was decided granting liberty to the Respondents who moved the RA No.16/2010 stating that the case of the Applicant was not covered by the judgment of Honble Apex Court in S. Thakurs case. After hearing the parties in the said RA, we passed the following orders on 27.09.2010:-
10. In the present case, the Review Respondent has retired and he is yet to establish whether any junior has been promoted while the retired Review Respondent was in service. The factual matrix of the OA No.783/2009 fairly concedes that juniors were promoted only after the retirement of the Review Respondent.
11. In view of the facts of the cases in S. Thakur (supra) and R. S. Gupta(supra) which are different from that of the Review Respondents case, we distinguish the same. It is noted that due to the concession conceded by the learned Counsel for the Respondents in OA, Shri R. K. Sharma, the error has crept in our order dated 25.08.2009 passed in OA No.783/2009. Consequently, we hereby recall our order dated 25.8.2009 and restore the OA No.783 of 2009 to its original number, which would be heard afresh for adjudicating the issues involved in the same. There is no order as to costs.
3. In the above background, the present OA was heard afresh. The following relief (s) have been sought in the OA by the Applicant:-
(i) to give the Applicant promotion from the date the vacancy against which he was approved by the DPC fell vacant following ratio decidendi in KN Parmeshwaran Nair Vs. UOI & Ors. 2004 (2) ATJ (CAT) 275 (Ern) and Devi Lal Vs. UOI 2002 (1) ATJ CAT Full Bench 485 (Jodhpur).
(ii) to pay consequential benefits from the date of promotion as prayed for in S.No.1 above.
(iii) to revise his retiral benefits accordingly with interest @12%p.a. on the dues which will accrue to the applicant.
(iv) grant heavy cost to the applicant against the respondents for dragging him to court.
(v) pass any other order/direction considered appropriate in the matter.
4. Shri S. S. Tiwari, learned Counsel for the Applicant contended that the promotion of the Applicant was due in April/May 2005 to the post of DCIO for the vacancy year 2005-06 but the DPC was held after about one year on 29.03.2006 few days before Applicants retirement. He further submits that 27 days after Applicants retirement on superannuation 69 of his colleagues including 49 of his juniors have been promoted on 27.04.2006. His principal contention is that the Respondents did not convene the DPC in time and the Applicant was prejudiced by his non promotion whereas many of his juniors have been promoted. Negligence of not holding DPC in time by the Respondents is legally wrong and the Tribunal can direct the Respondents to promote the Applicant from the date of vacancy. Shri Tiwari places his reliance on the judgment of Honble Supreme Court in Union of India versus NR Banerjee [1997-9-SCC-287].
5. He also contended that DOP&T instructions in OM dated 10.04.1989 to hold DPC from 1st April or May of the year of vacancy to draw up Panel for promotion was not followed in the present case and as such the said OM was violated in holding DPC belatedly.
6. Another contention raised by Shri Tiwari is that his right to equality is hit as 49 of his juniors have been promoted but even though he has been in the Panel, he has been denied timely promotion. He urges that although 46 of his juniors have been promoted after his retirement, by not promoting him on at least from the date of the DPC meeting, the Applicant has suffered pensionary benefits due to his non promotion. Shri Tiwari states that despite the approval of the Applicants name for promotion by DPC, denial of the same is an arbitrary decision of the Respondents. Relying on the judgment of Honble Apex Court in the case of State of Rajasthan versus Fateh Chand [1996-1-SCC-562], Shri Tiwari contends that the Applicant has been adversely affected due to his non promotion to higher rank, status, salary and even consequential pension. It is further contended that consideration of Applicant for promotion is his vested fundamental right and denial of the same with no legal reasons should be termed as illegal. It is urged that as the DPC has found him fit for promotion the Applicants case of promotion should relate back to the date when the vacancy arose for which he was considered by the DPC. In this context, Shri Tiwari submits that the Applicants claim is fully covered by the judgment of this Tribunal in K. N. Parameswaran Nairs case (supra) and Devi Lals case (supra). Shri Tiwari also relied on the judgment of Honble High Court of Delhi in the matter of Union of India versus Central Administrative Tribunal [2004-1-ATJ-112] to highlight that if the DPC could be convened belatedly the Applicant should not be allowed to suffer. He also cited the judgment of Honble Supreme Court in the cases of Union of India versus Mohan Singh Rathore and Another [1996-10-SCC-469], K. Ajit Babu and Others versus Union of India and Others [1997-2-SC-24] and Delhi Jal Board versus Mohinder Singh [2000-7-SCC-210].
7. Per contra, Ms. Jai Shree appearing on behalf of Shri A. K. Bhardwaj learned Counsel for the Respondents submitted that there was no intentional delay on the part of the Respondents. On the other hand, the process for the DPC for the year 2005-06 was initiated on 22.11.2004. At that point of time, it could not be visualized about the exact number of vacancies which would arise in DCIO due to the promotion to next higher post of Assistant Director (Exe). It was stated that DCIO promotion proposal for the year 2004-05 was pending in UPSC to fill up 73 vacancies for which DPC met on 13.04.2005 and the promotion panel was issued on 29.04.2005. On a request from IB, the MHA approved the proposal of dereservation of certain reserved posts only on 27.07.2005. A proposal was sent to UPSC on 12.08.2005 to hold DPC for 2005-06 but the DPC could meet on 29.03.2006, the minutes of the DPC was received in the IB on 13th April, 2006 by which time the Applicant had already retired from service on superannuation on 31.03.2006. It is further highlighted that the competent authority approved the promotion panel of DCIO which was issued on 26.04.2006. Promotion orders were released on 27.04.2006. She contended that the Applicant was considered for the year 2005-06 and was assessed fit by the DPC. In this regard, a reference was made to Para 17.10 and 17.11 of the DOP&T OM dated 10.04.1989, to contend that as there was no administrative lapse/delay the Applicant was not entitled to promotion from the date of vacancy as no one from the Panel was promoted w.e.f. the date of vacancy. Promotion is always prospective. The approved promotion panel was operationalised only on 27.04.2006. It was also clarified that no junior of the Applicant was promoted as DCIO when the Applicant was in service.
8. Having heard the contentions of the rival parties, we perused the pleadings as well. The Counsel for the Applicant has relied on many judgments, but for brevity in the judgment we may refer some of those judgments.
9. The controversy for our adjudication is in narrow compass-(i) whether the Applicant is entitled to be promoted from the date of the vacancy or the date when the DPC met and (ii) whether after his retirement he can be promoted retrospectively, even though his juniors were promoted only after his retirement?
10. The Applicants relief on the issue indicates that his prayer is fully covered by the law laid by this Tribunal in two of its judgments and it is averred that he is entitled to get promotion from the date of vacancy of the DCIO posts. We may refer to those orders in K. N. Parameswaran Nairs case (supra) and Devi Lals case (supra).
11. In the case of K. N. Parmeswaran Nair versus Union of India and Others [2004 (2) ATJ 274], the applicant was a retired BSNL Divisional Engineer already on ad hoc basis in the higher post for which he was seeking regular promotion from due date with all consequential benefits if the DPC adjudged him suitable for promotion. While allowing the case, the Ernakulam Bench of this Tribunal took note of its earlier judgment in OA No.136/2002 wherein the Respondents were directed to consider him for one of the 65 vacancies and the order having become final the Respondents were duty bound to comply with the said direction and negation through the impugned order dated 24.06.2003 was declared as illegal. Thus, the Tribunal directed the respondents to implement the directions contained in the judgment in OA 136/02 by convening the DPC and considered the case of the applicant as already directed to extend the consequential benefits including the arrears, if any, to the applicant within a period of four months from the date of receipt of a copy of this order. The case in the present OA is different. The Applicant was not on the higher post by promotion on ad hoc basis to be promoted on regular basis. Hence, the ratio decidendi in the judgment in K. N. Parameswaran Nairs case (supra) is qua the Applicant and is clearly distinguishable.
12. In the case of Devi Lal and Others versus Union of India and Others [2002 (1) ATJ 485], the facts are different from the one which we have been considering here. In the said case, the Full Bench of this Tribunal at Jodhpur considered the issue of the Applicant therein who was in service and his juniors were promoted and when the case came up for his promotion from the date on which his juniors were promoted, the Tribunal recorded its finding that an employee who was not promoted earlier due to administrative lapse on his retrospective notional promotion to the higher post subsequently, w.e.f the date his juniors were promoted would be entitled to the pay and allowances with retrospective effect. In the present OA the facts are that the Applicants juniors were promoted when the Applicant was not in service but was retired on superannuation. Thus, we distinguish the judgment of CAT Jodhpur Bench in Devi Lals case (supra) and note that the law laid by the Full Bench is not applicable to the present OA.
13. In the OA, the Applicant has cited number of judgments in support of his grounds. We would refer to some of those here. A careful perusal of Honble Apex Court judgment in Mohan Singh Rathores case (supra) it is noticed that the Respondent in the case was in the Select List approved by the UPSC but the same could not be notified in the absence of no deterioration certificate and when they agitated in the Jaipur Bench of this Tribunal, the Tribunal directed the appellant to appoint them on a par with their juniors in the panel. But the Honble Supreme Court set aside the Tribunal order on the principles of law. However, noting that the select list was forwarded on 11.04.1988, the Honble Supreme Court in the said judgment pronounced on 2.09.1996 decided that the Respondent would be entitled to all retiral benefits. In the present OA the select list by the DPC held at UPSC, was communicated after the retirement of the Applicant. On facts, the case decided by Honble Apex Court being not similar to the facts in the present OA, judgment in Mohan Singh Rathores case (supra) is distinguishable.
14. In Delhi Jal Boards case (supra), the Honble Apex Court considered the case of promotion of the Respondents wherein Respondent was facing a departmental enquiry for which the recommendations of DPC was put in a sealed cover and on exoneration in the said departmental proceeding, upheld the judgment of Honble Single Judge of Delhi High Court. The Honble High Court held that once the first disciplinary inquiry resulted in favour of the employee, the benefit of the DPC finding must be given to him irrespective of the pendency of 2nd disciplinary case. In the present OA, the facts being far different from the case, the judgment of Honble Apex Court is not applicable.
15. We may at this stage refer to the settled position in law in respect of the date from which an employee can be promoted and whether the promotion can be prospective or retrospective?
16. Every Officer has a right to be considered under Article 16 of the Constitution of India to a higher post subject to his eligibility, provided he is within the zone of consideration. The question is as to the manner in which his case is to be considered. In service jurisprudence this matter is important as it deals with fairness in the matters of promotion as held by Honble Supreme Court in the case of Badrinath versus Government of Tamil Nadu [2000-8-SCC-395].
17. Further, Honble Apex court has held that while consideration for promotion on fair and equal basis without discrimination can be claimed as legal and fundamental right under Article 14 and 16 of the Constitution but chances of promotion as such cannot be claimed as of right as held in the case of Dwarka Prasad and Others versus Union of India and Others reported in AIR 2003-SC-2971.
18. It has been held in a series of decisions of the Honble Supreme Court that a promotion takes effect prospectively i.e. from the date of granting promotion and not retrospectively from the date of occurrence of vacancy or creation of the post as held in the judgments in the matters of Union of India versus K. K. Vadera [(1989) Supp (2)-SCC-625], State of Uttaranchal and another versus Dinesh Kumar Sharma (2007-1-SCC-683), K. V. Subba Rao versus Government of A.P. (1988-2-SCC-201) and Sanjay Kumar Sinha-II versus State of Bihar (2004-10-SCC-734).
19. In service jurisprudence the service conditions give right to be considered for promotion to a higher position but do not give absolute right to be considered from stage to stage and it is not open to the Tribunal to grant even proforma/notional promotion to employees at various stages as held by Honble Apex Court in the matters of Government of Andhra Pradesh and Others Versus A. P. Jaiswal and Others [AIR 2001 SC 499].
20. Both parties have referred to Para 17.10 and 17.11 of the DOP&T OM dated 10.04.1989. We reproduce below the same as those have relevance in the case:-
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.
17.11 In cases where the recommendations for promotion are made by DPC presided over by a Member of the UPSC and such recommendations do not require to be approved by the Commission, the date of Commissions letter forwarding fair copies of the minutes duly signed by the Chairman of the DPC or the date of the actual promotion of the officers, whichever is later, should be reckoned as the date of regular promotion of the officer. In cases where the Commissions approval is also required the date of UPSCs letter communicating its approval is also required the date of UPSCs letter communicating its approval or the date of actual promotion of the officer whichever is later will be relevant date. In all other cases the date on which promotion will be effective will be the date on which the officer was actually promoted or the date of the meeting of the DPC whichever is later. Where the meeting of the DPC extends over more than one day the last date on which the DPC met shall be recorded as the date of meeting of the DPC.
21. In the background of the well settled position in law and the above OM, on the issue as to from which date the promotion from a select panel should come into force, we may analyse the facts of the case. Admittedly, the DPC for selecting the list of ACIO for promotion to the post of DCIO for the year 2005-06 met on 29.03.2006 and the DPC minutes approved by the Chairman UPSC were sent to IB on 13.04.2006, the competent authority approved the panel on 26.04.2006, and the Applicant retired from service on 30.03.2006. Further, it is admitted fact that the Respondents forwarded Applicants name to the DPC convened by UPSC and the DPC considered and assessed him fit. He was in the zone of consideration taking into account the vacancy position for the year 2005-06. It is noted that the proposal for DPC to meet to finalise panel for promotion was initiated on 22.11.2004 but for the consultation process and the finalization of the previous year (2004-05) panel for promotion to the post of DCIO, the DPC for 2005-06 could meet on 29.03.2006. It is also noticed that DCIO (Exe) being Group A post, the recommendations of the DPC are required to be approved by the President of India. After following proper procedure promotion orders were issued only on 27.04.2006, i.e. after the Applicants retirement on 31.3.2006. Though he was in the promotion panel he could not be promoted. It is a fact that Applicants juniors were promoted on 27.04.2006. They were not promoted when the Applicant was in service. Had any junior of the Applicant been promoted when he was in service, he would have a case in his support. But, that is not the case here. His juniors, undisputedly, were promoted after his retirement. The Applicants claims to be promoted from the date of vacancy or from the date of the DPC meeting date do not have the legal and statutory backing. In these circumstances, and in the absence of specific provision or judicial precedents, we, therefore, come to the considered conclusion that the Applicants claim is not legally admissible.
22. Resultantly, the Applicant failed to convince us to intervene in the matter and the Original Application being devoid of merits is dismissed, leaving the parties to bear their respective costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /pj/