Central Administrative Tribunal - Delhi
Shri P.K. Udgata vs Union Of India Through on 1 March, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO. 1563/2011 with O.A. 1564/2011, 1565/2011 AND OA 2116/2011 Order Reserved On 14.02.2012 Order Pronounced on 01.03.2012 CORAM: Honble Mr. Justice V.K. Bali, Chairman Honble Dr. Veena Chhotray, Member (A) OA 1563/2011: 1. Shri P.K. Udgata, Presently posted as Provident Fund Commissioner-I, Posted at Jalpaiguri 2. Shri Jagmohan Presently posted as Provident Fund Commissioner-I, Posted at Head Office, Bhikaji Cama Place, New Delhi 3. Shri M. Narayanappa, Presently posted as Provident Fund Commissioner, Posted at Regional Hyderabad, Andhra Pradesh 4. Shri Sharad Singh, Presently posted as Provident Fund Commissioner, At Head Office, Bhikaji Cama Place, New Delhi Applicants Versus 1. Union of India through The Secretary, Ministry of Labour, Govt. of India, Sharam Shakti Bhawan, New Delhi 2. Central Provident Fund Commissioner, Employee Provident Funds Organization, Bhikaji Cama Place, New Delhi Respondents OA 1564/2011: 1. Shri K.L. Goyal, Presently posted as Provident Fund Commissioner-I, Posted at Jalpaiguri 2. Shri J.R. Sharma, Presently posted as Provident Fund Commissioner-I, Posted at 3. Shri A.K. Gupta, Presently posted as Provident Fund Commissioner-I, Posted at 4. Shri P.U. Kulkarni, Presently posted as Provident Fund Commissioner-I, Posted at 5. Shri Satish Chandra, Presently posted as Provident Fund Commissioner-I, Posted at Applicants Versus 1. Union of India through The Secretary, Ministry of Labour, Govt. of India, Sharam Shakti Bhawan, New Delhi 2. Central Provident Fund Commissioner, Employee Provident Funds Organization, Bhikaji Cama Place, New Delhi Respondents O.A. 1565/2011: 1. Shri K.L. Taneja, Presently posted as Provident Fund Commissioner-I, Posted at Jalpaiguri 2. Shri Vijay Kumar, Presently posted as Provident Fund Commissioner-I, Posted at Regional Office, Madurai, Tamil Nadu Applicants Versus 1. Union of India through The Secretary, Ministry of Labour, Govt. of India Shram Shakti Bhawan, New Delhi 2. Central Provident Fund Commissioner, Employee Provident Funds Organization, Bhikaji Cama Place, New Delhi Respondents O.A. 2116/2011: Shri S.K. Aggarwal, S/o Shri Ram Lal Aggarwal, Aged about 46 years, R/o H. No.427, Sector 30A, Chandigarh Applicants (By Advocate: Shri Mahavir Singh, Sr. Counsel with S/Shri Pankaj Kumar Singh and Satpal Singh in all the OAs) Versus 1. Union of India through The Secretary, Ministry of Labour, Govt. of India Shram Shakti Bhawan, New Delhi 2. Central Provident Fund Commissioner, Employee Provident Funds Organization, Bhikaji Cama Place, New Delhi Respondents (By Advocate: Shri R.N. Singh in all the OAs) O R D E R
Dr. Veena Chhotray:
By this common order, we propose to dispose the OAs No. 1563/2011, 1564/2011, 1565/2011 and OA 2116/2011, as they involve identical issues of facts and law. The applicants are represented by the learned counsels Shri Mahavir Singh, Sr. Advocate with S/Shri Pankaj Kumar Singh and Satpal Singh, and the respondents by Shri R.N. Singh. As the lead case, the OA 1563/2011 is being taken; the references in the Order pertain to this OA, unless otherwise specified.
Most of the applicants in these OAs have been promoted as Regional Provident Fund Commissioner Gr-I on regular basis w.e.f. 21.5.2009. The ad hoc promotions on this post had taken place earlier at different points of time during the years 2006-2008. The applicants are aggrieved at their non-promotion on regular basis right at the time when the ad hoc promotions were made, as the regular vacancies were available and applicants were eligible for the regular promotion. Challenging delay on the part of the respondents in convening DPCs in time, they seek directions for grant of regular promotions from the respective dates of ad hoc promotions or from the dates of occurrence of regular vacancies. To illustrate, the following relief has been sought in the OA 1563/2011:-
8(i) order or direction to the respondents department to grant the regular promotion to the applicants from the date of adhoc promotion i.e. 17.1.2006, or from the date of the occurrence of the actual regular vacancy for the post of RPFC-I for the period of 2006-07.
2. The brief facts, relevant for the purpose of adjudication of these OAs, are stated below:
2.1 The applicants are Group A Officers in the Employees Provident Fund Organization, under the Union Ministry of Labour. They had been appointed initially as Assistant Provident Fund Commissioners, as direct recruits. They had further been promoted as Regional Provident Fund Commissioner Gr-II. The next promotional post is Regional Provident Fund Commissioner Gr-I. It is a selection post to be filled by promotion on seniority-cum-suitability basis. As per the RRs, 5 years regular service as RPFC Gr-II is minimum required to be eligible for this post. The minimum bench-marks prescribed are Very Good.
2.2 As all the applicants had been promoted as RPFC Gr-II in the year 1999, they acquired eligibility for the post of RPFC Gr-I after 5 years i.e. the year 2004 onwards. A number of vacancies occurred i.e. 2006-07 (12), 2007-08 (6) and 2008-09 (25).
2.3 After the DPC for regular promotions held on 27.5.2005, no DPC was held in the subsequent years 2006, 2007 and 2008. The next DPC was held only on 21.5.2009 (Annex P/4 Colly). It considered the promotion cases of eligible candidates against the vacancy years 2006-07, 2007-08 and 2008-09 (the consideration for the vacancy year 2009-10 need not be mentioned in the present context). The DPC recommended year-wise panels. The names of all the applicants found place in the recommended panels for different vacancy years. The regular promotions as RPFC-I were made vide the Office Order dated 22.6.2009 (Annex P/5). Out of the total 11 applicants in these four OAs, all except two (Shri Sharad Singh, applicant no.4/OA 1563/2011 and Shri Satish Chandra, applicant no.5/OA 1564/2011) were promoted. The regular promotions were given effect from 21.5.2009, the date of the DPC.
2.4 During this intervening period, ad hoc promotions had been granted to all the applicants from different dates. They had also been given the benefit of the pay scale of the promotional post.
2.5 As per the applicants, the inaction on the part of the respondents for considering their cases for regular promotion right at the time of occurrence of vacancies was unjustified and arbitrary. Consequently, it has affected their seniority in the rank of RPFC-I and chances of further promotion to the post of Additional Central Provident Fund Commissioner.
3. In support of the claims in the OA, the main pleas raised are: (i) As per the DOP&T guidelines holding of regular and timely DPCs is the Departments responsibility. Initiation of necessary action for filling up existing as well as anticipated vacancies well in advance and in accordance with a prescribed schedule has also been mandated; (ii) As per the provisions of the RRs, the posts of RPFC-I are to be filled up by promotion by selection on the basis of seniority-cum- suitability. If regular vacancies had occurred and candidates fulfilling the eligibility conditions were available, applicants had a legal right to be considered for regular promotion from the time of occurrence of regular vacancies. An infringement of Fundamental Right of the applicants in this regard has also been averred (Ground A); (iii) No cogent reason has been given by the respondents for not holding timely DPC; (iv) The delay in this case is arbitrary and has adversely affected the further promotional prospects of the applicants. Besides, a number of judicial rulings have been cited, which will be discussed in the subsequent paragraphs.
4. In their Counter Reply the respondents have submitted that sincere efforts had been made by the Department for holding the DPC for promotion to the post of RPFC-I during the years 2006 to 2008. In reply to Para 5(A), it is averred that during the years 2006 and 2009 DPC was fixed six times but due to administrative reasons, could not be convened. Para 4(viii) states that the DPCs could not be held as all necessary documents like the CRs, vigilance clearance etc. for placing before the DPCs had not been prepared. According to the respondents, the delay in this case has happened for administrative reasons, not attributable to them and due to factors beyond their control. To establish the bonafides of the Department in this respect, a mention of two review DPCs having been held for the posts of RPFC-I on 21.11.2007 and 17.12.2008, thereby benefiting 65 officers in RPFC-I cadre, has also been made.
As per the respondents, the Department had given ad hoc promotions to the applicants to save them from any financial loss. In the matter of the DOP&T instructions on the subject of convening of DPCs, it is submitted that the instructions also contain a provision for holding the DPCs for more than one year, where for reasons beyond control DPC could not be held in a year(s).
It is the consistent stand of the respondents that mere fulfilling eligibility does not confer any right on an employee for promotion. The respondents have also relied upon judicial rulings in support of their stand which would be discussed in the subsequent paragraphs.
5. Besides adverting to the DOP&T instructions mandating timely DPCs to fill up clear and anticipated vacancies, the OA cites a few judicial rulings. Besides, a compilation of certain judgments on the subject would also be handed over by the applicants counsel. Of these, the main ones as relied by the learned counsel, are being listed below:-
(a) Apex Courts decision in K.Madhavan Vs. Union of India [(1987) 4 SCC Para 15].
(b) The decision of Central Administrative Tribunal, Jabalpur Bench, in the case N.R. Banerjee and V.R. Shiv Kumar Vs. Union of India & Ors. [1997 (1) CAT 163]
(c) The Apex Courts decision upholding the aforesaid judgment of the Tribunal: UOI & Ors. Vs. N.R. Banerjee & Ors. (1997) 9 SCC 287
(d) The Apex Courts decision in P.N. Premchandaran Vs. State of Kerala & Ors., 2004(1) SCC 245
(e) The CAT (PB) decision in M.A. Khan Vs. UOI & Ors. (OA No.2364/2008) decided on 3.11.2009 5.1 The brief particulars of these judgments along with the inferential contentions made on behalf of the applicants are being stated below:-
(a) Apex Courts decision in K.Madhavan Vs. Union of India [(1987) 4 SCC Para 15] where it was held that if scheduled DPCs meetings got cancelled or postponed arbitrarily, retrospective promotions were justified.
The decision of Central Administrative Tribunal, Jabalpur Bench, in the case N.R. Banerjee and V.R. Shiv Kumar Vs. Union of India & Ors. [1997 (1) CAT 163]: the applicants were General Managers of Ordnance Factory agitating claims for promotion as Senior General Managers. Alleging delay on the part of the respondents in not holding DPCs, when the vacancies had arisen during the year 1994, several issues such as whether the determination of the vacancies should be, on the basis of the calendar year or financial year and the zone of consideration as per the relevant instructions, had been contended.
In this conspectus, the DOPT OM dated 10.4.1989 had also come in for consideration. In Para 27 of the order, the Tribunal had inter alia taken note of the fact that ordinarily the DPC should meet at regular intervals every year to prepare the panel for the anticipated vacancies well in advance. While giving the operational directions, the Tribunal had inter alia given directions for grant of promotion from the date the relevant vacancies arose, with all consequential benefits, including pay, arrears, seniority etc..
(c) On a challenge, the aforesaid decision of the Tribunal had been upheld by the Apex Court [UOI & Ors. Vs. N.R. Banerjee & Ors. (1997) 9 SCC 287]: In its judgment, the Honble Apex Court had specifically focused on the issue pertaining to accurate determination of vacancies (including the estimated ones), year-wise holding of DPCs well in time for preparing panels of eligible candidates to fill up clear and anticipated vacancies. Taking into account the relevant instructions and law on the subject, para 12 of the judgment had crystallized the following propositions of law:
(i) The filling up of the posts are for clear and anticipated vacancies arising in the year. The preparation of the panel should be only to the extent of the notified or anticipated vacancies. Unduly wrong panel should not be operated [Babita Prasad Vs. State of Bihar 1993 Supp.(3) SCC 268].
(ii) The State is under no legal duty to fill up all or any of the vacancies. But the authority must act reasonably, fairly and in public interest and omission thereof should not be arbitrary (Babita Prasad (supra) and Shankarsan Dash Vs. Union of India (Constitution Bench), (1991) 3 SCC 47.
(iii) Mere inclusion of ones name in the list does not confer any right on an employee to appointment, unless the relevant rules so indicate (Shankarsan Dash (supra)]. Empanelment is at the best a condition of eligibility for the purposes of appointment and does not amount to conferring any vested right for the same (State of Bihar Vs. Secretariat Assistant Successful Examinees Union 1986, (1994) 1 SCC 126].
In the aforesaid context of the general law on the subject, the specific aspect relating to the mandatory requirement of holding timely DPCs and in the event of an unjustified failure on that account, the consequential benefits that could accrue to the employees had been elaborated as below:-
However, in the light of the above principles and in the light of the clear rules extracted herein before, it is seen that the exercise of preparation of the panel is undertaken well in advance to fill up the clear vacancies or anticipated vacancies. The preparation and finalization of the yearly panel, unless duly certified by the appointing authority that no vacancy would arise or no suitable candidate was available, is a mandatory requirement. If the annual panel could not be prepared for any justifiable reason, yearwise panel of all the eligible candidates within the zone of consideration for filling up the vacancies each year should be prepared and appointment made in accordance therewith. This principle of law had also been connected with the law about there being no infringement of the rights of the eligible candidates for the succeeding years [Nagar Mahapalika Vs. Vinod Kumar Srivastava, (1987) 1 SCC 602].
(d) The Apex Courts decision in P.N. Premchandaran Vs. State of Kerala & Ors., 2004(1) SCC 245: In a inter se seniority dispute between Direct Recruits & Promotees to the post of Assistant Director Social Conservation, the Direct Recruits were challenging the grant of retrospective promotion to the promotees from the date of their temporary promotions. The Honble Apex Court did not accept this contention, being seized with the inordinate delay that had taken place in this case in holding the DPC (No DPC had been held from 1964 to 1980). The view taken was that this was clearly an administrative lapse for which the affected employees could not be made to suffer. Besides, the Residuary Rule 39 of the Kerala State and Subordinate Services Rules 1958 under which grant of retrospective promotion was permissible had also been found to be a relevant factor.
(e) The CAT (PB) decision in M.A. Khan Vs. UOI & Ors. (OA No.2364/2008) dated 3.11.2009: This was a case dealing with an officer belonging to organized Group A of Indian Supply Service, in the DGS&D under the Ministry of Commerce. Though the applicant had been promoted from the post of Deputy Director to that of Director in the year 2007, his claim was for retrospective promotion against the vacancies of the year 2003.
The special facts of the case like the availability of the first vacancy on 31.10.2003; the applicant being at the top of the ladder as per the seniority list; as per the extant instructions, the requirement for convening DPCs every year for selection against vacancies that may occur, had weighed with the Tribunal. Further, it was noted that the only plea adduced by the respondents for not convening the DPC regularly for year-wise vacancies, was the multi-litigation with regard to seniority pending in different fora. However, such a plea for administrative delay was not taken at its face value. Para 5 of the order shows how the Tribunal had found it appropriate to delve into the depths of such a plea to test its reasonableness and corresponding legal tenability:
The facts of the case, in any case, are special. The applicant was at no.1 in the seniority list. Irrespective of reservation, he would have, in any case, come within the zone of consideration. Assuming that there was some justification for the respondents to withhold promotions lock, stock and barrel, till such time the courts were to render decisions in various cases pending at different levels, then in that case, promotion of the applicant and others ought to have been considered from the date the vacancies occurred. Year-wise vacancies had to be notified and against such vacancies, eligible persons had to be considered. Surely, in such process, the applicant being senior-most would have been eligible for promotion from 2003. The applicant, in any case, deserved consideration of his promotion from the year 2003, whereas he has been promoted only in the year 2007. At the most, the respondents could promote him notionally, but as mentioned above, his consideration for promotion had to be from the year 2003 onwards.
Finally, directions were given to the respondents to consider promotion of the applicant from the year 2003 by constituting a review DPC, if required.
6. As per Shri R.N. Singh, the learned counsel for the respondents, the decision in N.R. Banerjees case (supra) was in the facts and circumstances therein, and would not be applicable in the present case. Further, reliance would be placed on the following judicial pronouncements by way of rebuttal of the rival contentions:-
(i) The Delhi High Courts judgment (DB) in the WP(C) No. 20812/2005 (UOI Vs. Rajendra Roy & Ors) decided on 12.1.2007.
(ii) The Delhi High Courts judgment (DB) in the WP(C) No.1188-90/2005 (UOI Vs. Vijendra Singh) along with a batch of other Writ Petitions decided by a common order dated 29.11.2010.
Their brief particulars and main points of law are being stated below:-
(i) UOI Vs. Rajendra Roy (supra): Rajendra Roys case had arisen pertaining to Indian Information Service, Group Ab Officers claims for promotion to the post of Junior Administrative Grade under the 50% LDCE quota. Shri Rajendra Roy, a senior grade officer, was due to retire on 31.1.2005. His grievance was that despite availability of vacancies in the 50% promotion quota (LDCE), the same were not filled during the years 2002, 2003 and 2005. On approaching the Tribunal through the OA No. 192/2005, directions had been given for considering him for promotion from the date on which the vacancy in JAG had occurred, on his turn, if it was prior to 31.1.2005 (the date of superannuation). In the event of his being found fit, he was to be promoted notionally with all consequential benefits of pay and allowances and fixation of pension and other retiral benefits as per rules.
Vide the WPC 20812/2005, the UOI was challenging the aforesaid decision of the Tribunal. The issue formulated was:
The short question which arises for consideration in this petition is 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 the vacancy against which he could be promoted becomes available. It had been argued on behalf of the UOI that an anomalous situation would arise by considering a retired person from the date of accrual of vacancy, whereas a serving employee was to be given promotion from the date of actual promotion. Besides, they had also relied upon the Apex Courts decisions in UOI & Ors. Vs. K.K. Vadhera and Ors. 1989 Supp(2) SCC 625 and Baij Nath Sharma Vs. Honble Rajasthan High Court at Jodhpur and anr., 1988 SCC (L&S) 1754.
The Honble High Court had not found the decision in N.R. Banerjees case applicable, considering the distinguishing feature of the respondents superannuation in the present case. On the other hand, relying upon the decision in K.K. Vadhera and Baij Nath Sharmas cases, the decision of the Tribunal had been set aside.
(ii) The Delhi High Courts order dated 29.11.2010 in UOI Vs. Vijendra Singh was a common order deciding five Writ Petitions. The claimants before the Tribunal were JE under the CPWD agitating claims for promotions as AE under LDCE quota for vacancies accruing from 1993-94 till 1998-99. Though promotions under the regular promotion quota (seniority-cum-suitability basis) had been made, the LDCE was not being held.
On certain JEs approaching the Tribunal through a set of OAs, directions had been given for consideration by the UPSC to segregate year-wise vacancies. In pursuance of these directions, LDCE quota posts had been filled as per year-wise eligibility of candidates and in relation to the vacancies occurring in the year in question.
Further, on a representation being filed Shri Vijendra Singh and others, the recruitees of LDCE quota claimed seniority vis-`-vis their counterparts from the seniority quota from the date of vacancies in the two quotas. The same benefit was also granted through finalization of a seniority list prepared in accordance with the principle of 1:1.
However, still not being satisfied, Vijendra Singh and others filed another OA, raising the issue that not only seniority but they should be given all other benefits of the notional promotion with effect from the year the vacancies accrued in their quota. They demanded pay scales of Assistant Engineers from retrospective dates and also wanted their qualified service as Assistant Engineer to be reckoned retrospectively for the purposes of promotion to the next higher post of Executive Engineer.
The basic issue under consideration had been formulated in para 23 of the judgment:-
23. Reverting back to the issue at hand, suffice would it be to state that the only issue which we need to decide is whether the claimants before the Tribunal were entitled to be placed in the pay scale of an Assistant Engineer and earned benefit with retrospective date, being when the vacancy accrued, or from the date of actual promotion and further whether for purposes of qualifying service required as an eligibility service for further promotion said benefit of having served as an Assistant Engineer with effect from a retrospective date has to be granted. The Honble High Court had refrained from adjudicating the issue as to whether the date of notional promotion should be reckoned for the purposes of qualifying service, for want of the pleadings defining the departmental rules on the subject. It had also recognized that as the seniority even in the context of rota quota qua the other feeder stream had already been granted to the applicants; this was no more the issue.
While dealing with the issue of entitlement for pay from the date of notional promotion, the Honble High Court had found this plea as untenable. It had inter alia dealt with a number of precedents cited on both the sides and arrived at the finding, now being relied upon by the respondents:-
It is thus apparent that service jurisprudence does not recognize the jurisprudential concept of deemed retrospective promotion and unless there exists a rule or there exists a residual power and in exercise of such a power, a decision is taken, no person can claim a right to be promoted from the date when the vacancy accrued and he must take the benefits from the date of actual promotion.
Finally, evoking the principle of no work no pay, even the extra wages that had been paid to the employees pursuant to the Tribunals directions, were directed to be recovered.
7. Having carefully considered the respective submissions and the material on record, the following aspects are found to be relevant in the present context:
7.1 Along with the rejoinder has been enclosed a copy of an Office Order dated 1.9.2011 by which in pursuance of the Tribunals directions in the OAs 759/2005 and 970/2004, regular promotions as RPFC-I have been granted on notional basis to twenty officers with effect from different dates in the year 2005. This inter alia includes the name of Shri P.K. Udgata and Shri M.Narayanappa (Applicants No.1 and 3 respectively in the OA 1563/20011). While granting an option for pay fixation from the date of the notional promotion, the arrears have been made admissible only from the date of actual assumption of charge.
We find this an extremely pertinent fact inasmuch as the respondents have already accepted the claims of two among the applicants in pursuance of judicial directions. This would also effectively rebut the plea of limitation raised by the respondents counsel (half heartedly though), inasmuch as by their own act of granting notional promotion from a date earlier than 2009, the respondents have shown a favaourble consideration of the claims of the applicants. While deciding the Review Application No.279/2011 in OA 364/2011 (P.S. Behl vs GNCTD & Ors ) vide the order dated 23.9.2011, it was held by this very Bench:
When a citizen is made to believe by some positive action or orders passed by the authorities that his case is under consideration, and when favourable advice, comments or orders are also passed, the terminus a quo for limitation would not commence.
7.2 The respondents have relied upon the DOPT instructions vide the Office Memorandum dated 10.4.1989 (Para 6.4.4) to contend that even where promotions are made by way of consolidated select list for vacancies relating to earlier years, such promotions will have only prospective effect. They have further reinforced their stand by adverting to the Apex Courts decision in K.K. Vadheras case (supra) as reiterated by the Delhi High Court in Rajendra Roys case (supra) and Vijendra Singhs case (supra). In brief, this is to the effect that unless there exists a rule or a residual power, enabling retrospective promotions, the same cannot be claimed.
7.3 There can be no two views about the generally settled principle of law that as a thumb rule, the benefits of promotions can only be granted from the date such promotions take place rather than from the date of occurrence of vacancies. However, even in the judgments relied upon by the respondents, there is an implicit recognition of a situation under which deemed retrospective promotions may be justified. This has been stated to be an enabling specific or a residual rule. However, an equally settled proposition of law is that where the statue or the rules are silent, the executive instructions legitimately fill in the gaps. It is here that the elaborate instructions issued by the DOPT about accurate assessment of vacancies i.e. both clear and anticipated, as well as convening of DPCs on schedule and at regular intervals well in advance, assume importance. As a logical corollary, a delay in holding the DPCs and preparing panels on schedule can only be acceptable in judicial review, if it is shown to be for bona fide and unavoidable reasons.
7.4 It is trite that a judgment must be read in its entirety. Reliance upon certain observations made in course of the judgment isolated from the factual context, may lead to unintended conclusions. Evoking the doctrine of circumstantial flexibility, we find that both the judgments of the Honble Delhi High Court being relied upon by the respondents, are distinguishable from the present set of OAs in critical facts. In Rajendra Roys case (supra), the basic issue being considered by the Honble High Court was whether the respondents, who had superannuated before consideration of the case by the DPC, could be granted promotion on a notional basis from a retrospective date. Even in the batch petitions in Vijendra Singhs case (supra), the contentious issue was the grant of pay from the date of retrospective promotion, which was rejected by the Honble High Court. The other aspect regarding reckoning the period as qualifying service for determination of eligibility for further promotions had not been adjudicated at all.
7.5 On the other hand, of the judicial pronouncements placed reliance on behalf of the applicants, the decision of the Jabalpur Bench of CAT in NR Banerjees case (supra) and further the judgment of the Apex Court in the same matter, are found to be particularly relevant in the present OAs. This is for the reason that even at the Tribunals level, the DOPT consolidated instructions on the subject of holding of DPC and related matters as per the OM 10.4.1989, had come in for consideration. The operational directions, which inter alia included grant of promotion from retrospective effect, were after being seized with the provisions of this OM.
As elaborated above, the Honble Apex Court, while upholding the decision of the Tribunal in NR Banerjees case, had specifically dwelt on this aspect, and after considering the law from varied aspects, had held the preparation and finalization of the yearly panels as a mandatory requirement.
We also find the decision of the coordinate Bench of the Tribunal in M.A. Khans case (in which one of us, the Chairman was also a member) as relevant. Not only the DOPT instructions vide the OM 10.4.1989 were considered but also the protestations of delay on the part of the respondents due to administrative reasons were not accepted at face value; instead they were subjected to a stringent judicial scrutiny. In the factual gamut of the case, directions for considering the promotion of the applicant retrospectively had been issued.
8. To conclude, after considering the pros and cons, the balance tilts in favour of the applicants. This is a case where despite availability of vacancies and of the eligible candidates, the DPCs were not held in time, and in fact, were delayed for a long period of four years. The reasons given by the respondents for not convening the DPCs are not found to be justified when put under judicial scrutiny. If as per their own averment, the DPCs could not be held despite the dates being fixed repeatedly as the necessary procedural requisites like the ACRs, vigilance clearance, etc. could not be completed; such factors cannot be stated to be as not attributable to the respondents or beyond their control. Such unjustified delay is neither warranted as per the repeated instructions issued by the DOPT, nor has met judicial approval in various pronouncements by the Tribunal, the High Courts and the Apex Court (some of which have been cited in this case). The matter seems to be clinched by the notional promotions from an earlier date already having been given to two among the applicants.
Resultantly, the OA is disposed with directions to the respondents to consider the grant of regular promotions to the remaining 9 applicants also (other than the applicants No.1 and 3 of the OA No. 1563/2011) from the date of their respective ad hoc promotions or from the date of occurrence of the regular vacancy by constituting a review DPC, if required. On grant of promotions, the entitlement would be to the reliefs as granted vide the respondents Office Order dated 1.9.2011. Our directions are to be complied within a period of three months from the date of receipt of a copy of this order. There shall be no order as to costs.
(Dr. Veena Chhotray) (V.K. Bali)
Member (A) Chairman
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