Central Administrative Tribunal - Delhi
M. A. Ansari vs Union Of India Through on 14 September, 2011
Central Administrative Tribunal Principal Bench OA No.3225/2011 New Delhi, this the 14th day of September, 2011 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) M. A. Ansari S/o Late Rahmat Ullah Deputy Director (Retired) Aged about 63 years, 29 CA/Neel Kamal Apartment, Flat No.16, Old Desu Road, Mehrauli, New Delhi 110 030. . Applicant. (By Advocate : Shri T. D. Yadav) Versus Union of India through Secretary Ministry of Agriculture Department of Agriculture and Cooperation, Government of India, Krishi Bhawan, New Delhi 110 001. . Respondent. : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
At the admission stage, we heard Shri T. D. Yadav, learned Counsel for the applicant. He submitted that the applicant joined as Surveillance Officer on 24.02.1978, and later on as Entomologist w.e.f. 27.09.1982, which post was redesignated as Assistant Director (Entomology) in the year 1987. He was promoted to the post of Deputy Director (Entomology) on 12.02.1996. He retired on 31.08.2008 after putting in 30 years of service in the Directorate of Plant Protection under the Ministry of Agriculture. The next higher post to which he should have been promoted as Joint Director (Entomology). He further submits that having been promoted as Deputy Director (Entomology) in 1987, he was eligible to be considered for the promotion to the said post as he completed 5 years of regular service as Deputy Director as early as 11.02.2001. It is the applicants case that though he was eligible and 3 vacancies existed for the said post in July 2004, January, 2005 and February, 2008, he should have been considered for promotion to the post of Joint Director (Entomology). These vacant posts were not filled up. In the meantime, Recruitment Rules (RR) were revised vide notification dated 02.04.2008. Aggrieved by his non-promotion, the applicant submitted representations dated 04.01.2006, 11.08.2007, 05.04.2008, 28.08.2008, 22.02.2011 and 14.03.2011, but the respondent did not consider his request for promotion and ultimately replied vide the letter dated 08.03.2011 informing him that three posts of Joint Director (Entomology) fell vacant after notification of revised RRs of Entomology discipline. As per 6th CPC recommendations various discipline/posts were merged and a revised seniority list of Entomology discipline was prepared. This exercise had taken sometime and vacant posts were filled in the year 2009-10 with the approval of UPSC. Assailing the above communication, the applicant has prayed to direct the respondent to consider his promotion to the post of Joint Director (Entomology) from the date of vacancies (July 2004 or January 2005). Shri Yadav submits that the applicant is not only entitled to be promoted but he should be given all consequential benefits including arrears of pay and retiral benefits.
2. During the hearing confronted with the queries, Shri T. D. Yadav clarified that the applicant was at the seniority No.2 as per the final seniority list of the Deputy Director (Entomology) as on 01.04.2008 issued on 20.10.2009 and no junior was promoted to the post of Joint Director (Entomology) when the applicant was in service. But he drew our attention to the Office Order dated 27.07.2010 available at Page 71 to state that three of applicants juniors (Shri Ram Asre, Shri A. K. Bandyopadhyay and Shri S. Balasubramanian) were promoted to the post of Joint Director (Entomology) in the year 2010.
3. Shri Yadav submits that the applicants case is covered by the orders of this Tribunal in the case of M. S. Tewari and Another versus Union of India and Others [OA No.2480/2009 decided on 02.12.2010]. Facts in this order are different from those of the instant OA. In M. S. Tewaris case, DPC was not held for over 13 years (from 1992 to 2005) the applicants therein could not be considered when the DPC met as they had already retired. The Tribunal directed that the applicants deserve consideration for promotion. In the present OA three vacancies arose after the revised RR for the Entomology discipline in general and for the post of Joint Director in particular was notified. Further, as per the 5th CPC various posts/disciplines were merged and a revised seniority list of Entomology discipline was prepared. The reasons given by the respondent in the impugned letter dated 8.03.2011 are justifiable and the judgment in M. S. Tewaris case (supra) is distinguishable. In the following paragraphs we will elaborately refer to the law laid by the Honble Apex Court and Delhi High Court in the controversy raised in this OA.
4. 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?
5. 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]. 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 promotion as such cannot be claimed as a matter of right as held in the case of Dwarka Prasad and Others versus Union of India and Others reported in AIR 2003-SC-2971.
6. 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). 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]. It is well settled position in law that if the juniors gets promoted after the retirement of the officers in question, such officers could not be promoted retrospectively from the date of vacancy.
7. In the context of the issue raised by the parties in the present OA, the Office Memorandum No.22011/4/98-Est (D), dated 12.10.1998, dealing with the procedure to be followed by the Departmental Promotion Committee in regard to the retired employees being relevant, we take the extract of the relevant part of the aforesaid OM below:
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. 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 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 junior 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 principles prescribed in the Department of Personnel and Training, O.M. No.22011/8/87-Estt(D), dated 9-4-1996. (Copy enclosed).
8. As per above OM issued by DOP&T it has been clearly mentioned that when a panel is being prepared for a particular year and the officers serving in that year though retired and the panel is prepared after the retirement, such officers would have the right to be considered. In this regard, we may refer to the judgment of this Tribunal in Rajendra Roy versus Union of India passed on 8.07.2005 in OA No.192/2005, where the Tribunal directed the Union of India to consider Rajendra Roy for promotion to the Junior Administrative Grade (JAG), from the date vacancy occurred in JAG. It was further directed that if the vacancy was prior to 31.01.2005, when Shri Roy retired on superannuation, the promotion should be given on notional basis, if his name figured in the select list recommended by the Departmental Promotion Committee (DPC). The above orders of the Tribunal were challenged before the Honourable Delhi High Court in Union of India versus Rajendra Roy [W.P. (C) No.20812/2005 decided on 12.01.2007]. The High Court then framed the issue for consideration whether the respondent, who had superannuated before the consideration of his case for promotion by the DPC, could be granted promotion on a notional basis, by requiring his case to be considered by the DPC, as and when it is held, and in the event of his being empanelled by the DPC, from the date of the vacancy against which he could be promoted becomes available? Rajendra Roys claim was that there were sufficient vacancies in JAG since the year 2002 but the DPC did not meet to consider the eligible persons for promotion. He also claimed that he was senior to one Monideepa Mukherjee, who had been promoted to JAG on 10.07.2002. However, the petitioner successfully demonstrated before the High Court that Monideepa Mukherjee was senior to the Applicant. The petitioner also explained that the meetings of DPC could not be convened for vacancies for the years 2002-03 to 2004-05 because ACRs of certain officers in the zone of consideration were not available. The contention on behalf of the petitioner was that promotion cannot be granted from the date of occurrence of the vacancy. It can only be granted from the date the recommendations of the DPC approved by the competent authority. Yet another contention in Rajendra Roys case (supra), which had been raised by the learned counsel for the Respondents therein also was that it would be anomalous that a retired person would be promoted from the date of occurrence of the vacancy whereas the serving employees would be given promotion from the date of his actual promotion following the approval of the panel. The Delhi High Court then considered the judgements of Supreme Court in Union of India and others Versus K.K. Vadera and others, [1989 Supp (2) SCC 625], and Baij Nath Sharma Versus Honble Rajasthan High Court at Jodhpur and Anr., [1988 SCC (L&S) 1754]. In K.K. Vaderas case (supra), the order of this Tribunal was under challenge before the Honourable Supreme Court. The Tribunal had directed that K.K. Vadera and others should be given promotion from the date of creation of the promotional post. The Honourable Supreme Court reviewing the order of Tribunal held thus:
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 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. In Baij Nath Sharmas case (supra), the appellant before the Supreme Court sought promotion on notional basis to Rajasthan Higher Judicial Service on the ground that there were vacancies in the said service before he retired. It was noted that no Judicial Officer junior to the appellant had been promoted before his retirement. The appellant sought notional promotion from the date of occurrence of vacancy. The High Court has summed up the decision of the Supreme Court thus:
16. The Honble Supreme Court held that the appellant would certainly have a grievance if any of his juniors had been given promotion from a date prior to his superannuation which was not the case before the Court. The Court also noticed that there was no rule under which promotion could be granted from the date of occurrence of the vacancy. The Court relied upon its earlier decision in K.K. Vadera (supra) and the dismissed the appeal of Baijnath Sharma. This decision in our view, seals the fate of the respondent. No doubt, the Honble Supreme Court regretted the inaction on the part of the High Court to make timely promotions since delays and inaction, resulted in deprivation of promotion to the deserving candidates without any fault of theirs. The Supreme Court also expressed the desire that such occurrences should not recur. But that by itself cannot give a right to the respondent to go against the jurisprudence evolved in the main part of the judgment. (emphasis supplied) The High Court has also considered the OM of 12.10.1998 and considering the facts of the case held thus:
25.He claims that four of his colleagues, who retired like him in the Sr. Grade of IIS Group A have been given notional promotion to Junior Administrative Grade from retrospective date i.e. 7.2.2002. However, what is being missed by the respondent is that all the persons promoted retrospectively notionally w.e.f. 10.7.2002 to the Junior Administrative Grade of the service were senior to the respondent as per the revised seniority list as on 31.3.2000. Had a junior of the respondent been promoted to the Junior Administrative Grade, certainly the respondent would have had a valid and enforceable claim to seek notional promotion from retrospective date i.e. from the date on which the junior was promoted. But this is not his case. (emphasis added)
9. From the above cited judgments, the following key principles emerge:
There is no rule that promotion should be given from the date of creation of the promotional post or from the date of vacancy.
If promotion is effected prospectively from the date of issue of the order of promotion, retired employees prior to such date would not be eligible for promotion retrospectively. Even if retired employees are in the Select List or Panel for promotion, they cannot be given retrospective promotion when the promotion is prospective.
(iii) if promotion is granted retrospectively and a person junior to the retired employee has been promoted from the date when the retired person was in service and if the retired employee has been found fit by the DPC and is available in the Panel or Select List, such retired employee would be entitled to promotion retrospectively on notional basis from the date his immediate junior has been promoted.
10. Tested on the touchstone of the above trite law, we find that in the present case, though two vacancies for the year 2004 and 2005 existed, but the respondents revised the RR, the seniority list and other normal selection process to draw up a Panel which have taken reasonable time. It is not the case of the Applicant that DPC was delayed intentionally to deprive him the promotion. Admittedly, the juniors of applicant were not promoted when the applicant was in service. They were promoted only on 27.07.2010 whereas the applicant retired on 31.08.2008 (i.e. after 23 months of his retirement). On this score, the applicant does not convince us to interfere.
11. Moreover, this is not a case where the respondents have deliberately delayed in conducting DPC. On the other hand, the respondents have clearly mentioned the reasons in the impugned order viz (a) the Recruitment Rules were amended and (b) a revised seniority list of Entomology discipline was prepared as late as in 2009-2010. Therefore, the delay in conducting the DPC cannot be attributed to such reasons which would have prejudiced the interest of the applicant to get promoted in the available vacancies.
12. Considering the totality of facts and circumstances of the case, guided by the well settled position in law in the subject and having given a careful consideration on the grounds and contentions raised by the applicant in this OA, we are of the considered opinion that the respondents have very correctly issued their letter dated 08.03.2011 by which the applicant was informed reasons for filling up those two vacancies in the year 2009-10. Thus, the said communication dated 08.03.2011 is maintainable in the eyes of law.
13. Resultantly, finding no merits in the Original Application, the same is dismissed in limine. No costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /pj/