Central Administrative Tribunal - Delhi
Shri B.P. Gairola vs Union Of India on 14 May, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.2853/2012
ORDR RESERVED ON: 12.04.2013
ORDR PRONOUNCED ON:14.05.2013
HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. SHEKHAR AGARWAL, MEMBER (A)
Shri B.P. Gairola
Aged 60 years
S/o Shri Leela Nand
Joint Area Organizer (JAO) (Retd.),
R/o Village Gujeta,
P.O. Hisriyakhal,
Distt. Tehri Garhwal,
Uttarkhand. Applicant
(By Advocate Shri Rajesh Katyal)
Versus
1. Union of India,
Through Secretary,
Ministry of Home Affairs,
North Block, New Delhi.
2. The Director General,
Sashastra Seema Bal (SSB),
Force Head Quartes,
East Block-V, R.K. Puram,
New Delhi-110066.
3. Shri M.M. Khandpal
Area Organizer (AO),
Sashastra Seema Bal (SSB).
4. Shri K.S. Marh
Area Organizer (AO),
Sashastra Seema Bal (SSB). ..Respondents
(By Advocate Mrs. P.K. Gupta)
O R D E R
Shri G. George Paracken:
The Applicant and other similarly placed persons mentioned in this OA are governed by the Sashastra Seema Bal (SSB for short ) (Senior Executive) Service Rules, 1977 notified by Cabinet Secretariat (Department of Cabinet Affairs), vide Notification No.EA/SE-191/74 dated 01.03.1977 (as amended from time to time). The Respondents, vide Annexure A-5 order dated 16.07.2007 de-notified the said rules with immediate effect. Some of the affected employees challenged the aforesaid order before this Tribunal vide OA No. 2104/2009 Shri Bakhatawar Singh and Others Vs. The Secretary, Cabinet Secretariat and Others. This Tribunal, vide order dated 05.12.2010, set aside the same with a direction to the Respondents to consider their claim and if they are found eligible under the rules, to promote them as expeditiously as possible with all consequential benefits. In compliance of the aforesaid directions, Respondents vide Annexure A-9 order dated 27.04.2010 withdrew the order dated 16.07.2007 and vide order dated 12.12.2011, promoted several Joint Area Organizers (JAO for short) on notional basis from the dates in the respective vacancy years shown against each of their names and regular promotion in most of the cases with effect from 25.02.2010 and in some cases with effect from 26.02.2010 with further stipulation that they will get their notional seniority from the effective date of promotion to the rank of Area Organizer (AO for short) and their pay will be fixed notionally from the said date. However, they will not be entitled for any arrears. As regards the residency period for future promotion is concerned, it shall be counted from the date they have taken over charge of AO on regular basis. The said order has also given notional promotion to the officers who have already retired from service. One of such beneficiaries was, Shri R.C. Sharma who retired on 31.03.2007 but got the notional promotion with effect from 01.07.2006.
2. Later on, two Sub Area Organizers (SAO for short), namely, Shri V.S. Rawat and Shri Sarat Adhikari filed OA No. 1712/2011 before this Tribunal claiming was that they were to be promoted to the post of JAO in the year 2007 but they have been promoted to the said post only in the year 2009. The Respondents admitted in the said OA that in the wake of the order of this Tribunal in OA No. 2104/2009 (supra), the applicants therein were also entitled to be promoted from 2007, subject to their eligibility and fitness. The said OA was accordingly allowed on 05.09.2011. The Respondents have also implemented the aforesaid directions vide Annexure A-11 order dated 31.1.2012. As a result, a number of SAOs/SFOs (General) including those 2 Applicants, the Applicant herein and Respondents No.3 and 4 herein were promoted as JAO on notional basis against the relevant vacancy years with effect from the date notified against their names. Those who belonged to the vacancy years 2006-07, 2007-08, 2008-09, 2009-10 and 2010-11 were accordingly promoted from retrospective dates. Even though Shri Sarat Adhikari, one of the Applicants in OA No. 1712/2011 (supra) retired by that time on 31.12.2011, he was also included in the vacancy year 2007-08 and promoted with effect 13.11.2009 on regular basis. The Applicant belongs to the vacancy year 2008-09 and he was promoted as JAO notionally from 01.04.2008 and actually from 01.04.2011. Similarly, his juniors Shri M.M. Khandpal (respondent No.3) and Shri K.S. Marh (respondent No.4) were also promoted notionally with effect from 01.07.2008 and actually with effect from 01.04.2011. Later on, the Applicant retired as JAO with effect from 30.04.2012. Subsequently, the Respondents, vide impugned Annexure A-1 order dated 07.08.2012, promoted 9 JAOs, all of them junior to him, to the grade of AOs for the vacancy years 2011-12 and 2012-13 with effect from the date they have assumed the charge of the said post. In the said order, Applicants juniors Shri M.M. Khandpal and Shri K.S. Marh who belonged to the vacancy year 2011-12 were also included. He has, therefore, filed this OA on 27.08.2012 aggrieved by the aforesaid order dated 07.08.2012 complaining that he has not been given the promotion from the due date only for the reason that he had already retired by that time. He has, therefore, sought a direction to the Respondents to hold a Review DPC for considering his case for promotion to the post of Area Organiser against the vacancies of 2011-12 from the due date, i.e., 01.01.2011. During the pendency of this OA, he has also filed a representation dated 17.12.2012 requesting the respondents to grant promotion to him also as Area Organiser at least on notional basis from the due date.
3. The Applicant challenged the aforesaid denial of promotion by the respondents in this OA on several grounds. However, the main thrust of the argument of the learned counsel for the Applicant, Shri Rajesh Katyal was on the interpretation of the Office Memorandum No.2011/4/98-Estt.(D) dated 12th October, 1998 issued by the Department of Personnel & Training relied upon by the Respondents wherein it has been held that if eligible employees who were in the zone of consideration for the relevant year(s) but were not actually in service on the date of holding the DPC, their names should also be included in the panels, but without any right of actual promotion. The OM reads as under:-
Procedure to be followed by the Departmental Promotion Committees in regard to retired employees -
2. Doubts have been expressed in this regard as to the consideration if 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 the 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 juniors 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 principle prescribed in the Department of Personnel and Training. OM No. 22011/8/87-Estt.(D), dated 09.04.1996.
4. Ministries/Departments are requested to bring these instructions to the notice of all concerned including their Attached and Subordinate Offices.
[GI., DOP&T OM No. 22011/4/498-Estt.(D), dated the 12th October, 1998].
4. During the pendency of this OA, the respondents passed order dated 07.09.2012 disposing of the aforesaid representation of the Applicant dated 17.12.2012. According to them, they convened the DPC for promotion of JAOs to the rank of AO for the vacancy years 2011-12 and 2012-13 on 04.07.2012 and it strictly followed the procedure laid down in OM dated 12.10.1998 (supra) and the promotions of the empanelled officers were made only with prospective effect. Since Shri B.P. Gairoa, (Applicant herein) JAO had retired from Government service on 30.04.2012, i.e., before the date of convening the DPC, he could not be promoted to the rank of AO after his superannuation. He has challenged the aforesaid order also in this OA by way of rejoinder.
5. In the reply filed by the respondents also, they have reiterated their aforesaid submissions. They have further stated that the Applicant was very much in the zone of consideration and the DPC had in fact considered his case. Accordingly, he was also empanelled for promotion to the rank of AO. However, since the aforesaid OM clearly states that the retired personnel who have been empanelled for promotion have no right for actual promotion and the applicant had already retired from service on 30.04.2012, he was not given the promotion.
6. The Respondents have also filed an additional affidavit on 01.03.2013 stating that the facts regarding the promotion of S/Shri R.C. Sharma, R.D. Thakur, Sarat Adhikari and V.S. Rawat to the rank of Area Organizer are distinct from the case of the Applicant. In their case, in compliance of the order of this Tribunal dated 05.01.2010 in OA No.2104/2009 (supra), a review DPC was held on 30.09.2011 to consider promotion of Joint Area Organisers to the rank of Area Organisers for the vacancy year 2006-07 to 2009-10 to review the DPC held on 25.02.2010. Consequently, notional promotion to all the Applicants of the OA No.2104/2009 (supra) were granted with retrospective date i.e. with effect from the date. Shri Chance Keishing who was the immediate junior to Shri R.C. Sharma was promoted i.e. w.e.f. 01.07.2006. Since, Shri R.C. Sharma was in service before his junior Shri Chance Keishing was promoted to the rank of Area Organiser, Shri R.C. Sharma was also promoted on notional basis w.e.f. 01.07.2006 though he retired from service on 31.03.2007 i.e. before the DPC was held on 30.09.2011. However, in case of Shri B.P. Gairoa (the applicant) no junior to him was promoted before his retirement. Shri R.D. Thakur, though was eligible for promotion against vacancy year 2009-10, the DPC did not find him fit for promotion to the rank of Area Organiser because he could not attain the requisite benchmark. However, he attained the requisite benchmark during the year 2010-11 and accordingly he was considered and promoted to the rank of Area Organiser w.e.f. 01.04.2010. Further, according to the Respondents there was error committed by the DPC convened on 19.01.2011 as the same was required to take into cognizance the DOP&T OM dated 12.10.1998 even though Shri R.D. Thakur was one of the Applicants in OA No.2104/2009. In fact, DOP&T has clearly clarified that giving retrospective promotion to the Applicants are not in accordance to rules in vogue. The rectifications of the mistake committed are required, if it is feasible. Further, according to them, promotion of Area Organisers were granted from prospective date only, i.e., the date of taking over the charge of Area Organiser on promotion. Moreover, no junior to applicant was promoted to the rank of Area Organiser prior to the date of his retirement.
7. We have heard the learned counsel for the Applicant, Shri Rajesh Katyal and the learned counsel for the Respondents, Mrs. P.K. Gupta. In our considered view, the DPC held on 04.07.2012 was totally misdirected. They have misread the DoP&Ts OM dated 12.10.1998 relied upon by them. Admittedly, the applicant retired from service only on 30.04.2012 but he was considered for promotion as AO for the vacancy year 2011-12 as he was admittedly in the consideration zone for that year. Had he been considered by the DPC at the appropriate time, he would have got his promotion from the due date. In this regard it is necessary to extract below the following relevant part of the G.I., Dept. of Per. & Training., OM No.220111/3/1998-Estt.(D), dated the 17th September, 1998 regarding fixing of crucial date of eligibility of officers to be considered for promotion by DPC:-
2. The matter has been reconsidered by the Government and in supersession of the existing instructions, it has now been decided that the crucial date for determining eligibility of officers for promotion in case of financial year-based vacancy year would fall on January 1 immediately preceding such vacancy year and in the case of calendar year-based vacancy year, the first day of the vacancy year, i.e., January 1 itself would be taken as the crucial date irrespective of whether the ACRs are written financial year-wise or calendar year-wise. For the sake of illustration, for the panel year 2000-2001 (financial year), which covers the period from April 1, 2000 to March 31, 2001, and the panel year 2000 (calendar year), which covers the period from January 1, 2000 to December 31, 2000, the crucial date for the purpose of eligibility of the officer would be January 1, 2000 irrespective of whether ACRs are written financial year-wise or calendar year-wise.
8. The respondents themselves, vide order dated 12.12.2011 promoted the Joint Area Organisers to the post of Area Organisers on notional basis against the respective vacancy year in terms of the order of this Tribunal in OA No. 2104/2009 Bakhtawar Singh & Others Vs Union of India and Others decided on 05.01.2010. By the said order, Sh. R. C. Sharma, Joint Area Organisers was also promoted as Area Organiser w.e.f. 01.07.2006 (due date) even though he had already retired from service on 31.03.2007 and the DPC was held later. But the justification given by the respondents in promoting Shri R.C. Sharma even after his retirement from service that his junior of Shri Chance Keishing was also promoted on 01.07.2006 is improper. What the OM dated 12.10.1998 says is that there is no bar for consideration of retired employees, while preparing the year-wise panel(s), who were within the zone of consideration in the relevant years. Further, according to the said OM, it would not be in order, if the erstwhile employees who are in the zone of consideration for the relevant year(s) but are actually not in service when DPC is being held, are not considered while preparing year wise zone of consideration/panel and, consequently, their juniors have been considered in their places who would not have been in zone of consideration, if the DPC had been held in time. Such a procedure has been considered imperative for determining the correct zone of consideration of candidates for the relevant year. Once they are considered and found fit for promotion, their names are also required to be included in the panel(s). In other words, the only benefit which can be denied to them is the actual promotion. In other words by inclusion of their names in the select panel, they became entitled for getting notional promotion from the due date. Otherwise, their consideration by the DPC and induction of their name in the panel is only a futile exercise and empty formality. Admittedly, in the present case, DPC held on 04.07.2012 considered the case of the Applicant and included his name in the zone of consideration for the vacancy year 2011-12. Obviously, since he had already retired from service w.e.f. 30.4.2012, there is no question of granting him actual promotion and the actual pay and allowances for the period he has not performed his duties. But, no doubt, he can claim that he was eligible for promotion from 01.01.2011 and get his notional promotion from the due date. Therefore, it is immaterial, as far as the Applicant is concerned, the Respondents, vide the impugned order dated 07.08.2012, promoted the Joint Area Organizers of the vacancy years 2011-12 and 2012-13 as Area Organiser, with prospective effect, i.e., the date of their assuming the charge.
9. In this regard the judgement of the Apex Court in P.N. Premchandran Vs. State of Kerala and Others 2004 (1) SCC 245 is relevant. The relevant part of the said judgement reads 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 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.
10. The issue raised in this OA was considered extensively also by a co-ordinate Bench of this Tribunal in OA No. 1409/2009 and connected OAs - Shri P.G. Geroge Vs. Union of India and Another etc. The specific question considered by the Bench was whether retired employees of the Government would be eligible for notional promotion retrospectively, if the meeting of Departmental Promotion Committee, held after their retirement, considers them fit for promotion and persons junior to them in service are promoted retrospectively from the dates, when such retired employees were in service. The relevant facts in the said case were that the Applicant therein retired as Under Secretary on superannuation on 31.10.2008. The Department of Personnel and Training (DOP&T) issued a Select List of Grade-I officers of the CSS on 30.01.2009 and considered him fit for inclusion in the Selection Grade (Deputy Secretary) of CSS for 2006. The said Select List was based on the recommendations of the Selection Committee met on 22.01.2009 which followed the provision contained in the Office Memorandum (OM) No.22011/4/98-Estt.(D), dated 12.10.1998 wherein it has been held that the retired persons who are found fit by the Selection Committee can be included in the Select List.
11. The Applicant therein relied upon earlier order of a co-ordinate Bench of this Tribunal in OA No. 1519/2008 Shri R.S. Gupta Vs. Government of NCT of Delhi and Others and its operative part is as under:-
16. It is noteworthy that the procedure prescribed vide DoP&T O.M. dated 12.10.1998, while making it clear that retired officers would have no right for actual promotion, does not prohibit grant of notional promotion to them. While promotion may not be claimed as a matter of right from the date of attaining eligibility for promotion, we are of the considered view that once an employee has been illegally and arbitrarily denied consideration for promotion while in service, he cannot continue to be denied the benefit of the same only because he has since retired on superannuation. We, therefore, direct the respondents to convene a review D.P.C. as on 18.08.2005 to consider the case of the applicant for promotion as Senior Accounts Officer keeping in view the Rules, Instructions and in accordance with law. A decision be taken on the recommendations of the D.P.C. and in case the applicant is approved for promotion, the benefits thereof be extended to him notionally, releasing to him the additional pension and retirement dues to which he would become entitled upon re-fixation of pay on the date of superannuation. The above exercise be completed within a period of 3 months from the date of receipt of a certified copy of this order. The O.A. is disposed of as above. No costs.
17. Before parting, we are constrained to observe that as per DoP&T O.M. dated 12.10.1998 reproduced in Swamys Establishment and Administration, copy at Annexure A-24, a retired employee who would have been considered for promotion if D.P.C. had been held in time, is required to be included in the zone of consideration when a D.P.C. is held after his retirement, but he would have no right for actual promotion. We feel that such a self serving provision, which permits inclusion of the name in the zone of consideration but leads to no consideration and gives no benefit to the retired officer is liable to be regarded as unreasonable and arbitrary. By keeping out the juniors as well, in fact, it reduces the zone of consideration to the benefit of others, the validity of which appears to be doubtful. A retired employee does not hold any post beyond the date of retirement. Extending notional benefit is not likely to have any adverse consequences for others in terms of service, monetary or pensionary benefits that may be due to them. The date of appointment of the next immediate junior would also have no relevance when the D.P.C. is held after retirement. We would, therefore, advise the respondents to consider this matter and take up with the DoP&T for suitable reconsideration and revision of O.M. dated 12.10.1998 keeping in view also the observations made by us.
12. He has also relied upon the judgment of High Court of Punjab & Haryana in the case of Chaman Lal Lakhanpal Vs. Union Public Service Commission and Ors., decided on 23.11.1998 and reported in 1998 (3) SLR 436. Giving relief to the petitioner, the learned DB held as under:-
6. It is the admitted position that the petitioner was eligible to be considered for promotion in the year 1994-95. It is also not disputed that his claim has not been considered. Thus, the petitioner, even if he was approaching the date of retirement when the matter was pending before the Tribunal, had a right to be considered with effect from the due date and on being found suitable, he could be fictionally granted the relief which had been denied to him for no fault of his. The relief could not be denied to him merely because a statutory authority viz. the committee as constituted under the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 had not met. The respondents cannot be permitted to take advantage of their own wrong. By sleeping over the matter, they cannot defeat the rights of a citizen available to him under the Constitution as well as the statutory provisions of the regulations.
.. .. ..
10. It was then urged that the petitioner has since retired from service. Even this cannot be a ground for refusing to consider his claim. The right to be considered had accrued in the year 1994-95. The respondents had failed to consider his claim. They had not discharged they duty as enjoined upon them by law. The wrong done to the petitioner can only be remedied by one method viz. directing the respondents to do the needful on the hypothesis that he was in service at the relevant time. If the petitioner is found suitable for inclusion in the select list and if his turn for appointment comes against an available post in the promotion quota, he will be deemed to have been promoted with effect from the due date. Consequential reliefs shall ensue in accordance with the rules.
13. On the other hand, the Respondents therein relied upon the judgment of the High Court of Delhi in Union of India Vs. Rajendra Roy in W.P. ( C) No.20812/2005 decided on 12.01.2007 which has arisen from the order of this Tribunal in OA No. 1992/2005. In the said judgment, the High Court considered the judgements of Honourable Supreme Court in Union of India and others Vs. K.K. Vadera and others, 1989 Supp (2) SCC 625 and Baij Nath Sharma Vs. Honble Rajasthan High Court at Jodhpur and Anr., 1988 SCC (L&S) 1754. In K.K. Vadera (supra), the Apex Court has held as under:-
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 Sharma (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)
14. In conclusion, the Tribunal held as under:-
8. It is thus very clear that :
There is no rule that promotion should be given from the date of creation of the promotional post; if promotions are effected prospectively from the date of issue of the order of promotion, retired employees would not be eligible for promotion retrospectively; and 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 person has been found fit by the DPC, such retired person would be entitled to promotion retrospectively on notional basis from the date his immediate junior has been promoted. This is clear from the judgement in Baijnath Sharma, as it has been paraphrased in Rajendra Roy (supra) in paragraph 16, quoted above. Moreover, it has further been clarified by the Honourable High Court in Rajendra Roy (supra) itself in paragraph 25 of the judgement, which has been quoted above.
9. Much was made of the observations of the Delhi High Court in paragraph 22, quoted above, by the learned counsel for the Respondent. He would contend, on the strength of that paragraph, that it would be quite wrong to interpret the OM of 12.10.1998 of DOP&T to mean that the retired person can be given notional promotion from a back date. The OM of 12.10.1998, of course, states that whilst retired employee may be considered for promotion in the Select List/ Panel of the years, in which they were in service, but they would not be eligible for actual promotion. It also states that the purpose of including the retired employees in the list of eligible persons for inclusion in the Select List/ Panel is to ensure that those persons, who were not eligible for inclusion in the zone of consideration at that time, should not get in because of not including the names of persons, who were in service at that time in the list of eligible employees, only because they have retired. The important point is that the aforesaid OM does not bar notional promotion, while it bars actual promotion. In fact actual promotion from retrospective date would not be given even to serving employees. However, it cannot be denied that if a person junior to a retired employee is promoted with retrospective effect, from a date when the retired employee was also in service, such benefit cannot be denied to the retired employee. It would be logically inconsistent to give the benefit of retrospective promotion to a serving employee and deny the same to a retired employee. It would be unfair and it would mean that the retired employee has been made to pay for the delay in the preparation of the Select List/ Panel, caused solely due to the mistake of the Government. In Union of India etc. Vs. K.V. Jankiraman etc., JT 1991 (3) SC 527, though in a different context, the Honourable Supreme Court held that the employee would be eligible for all actual benefits of promotion retrospectively because he was prevented by the Government from working in the higher post.
10. In Rajendra Roy (supra), the Respondent before the Honourable Delhi High Court had retired from service and none of his juniors had been promoted before his retirement. In the instant case, however, it is clear from the reading of the impugned order dated 13.02.2009 itself that the approved service in respect of the officers who have been included in the Select List of Selection Grade (Deputy Secretary of CSS) for the years 2003-04, 2004-05 and 2005-06 would be counted from the first July of the respective Select List year in terms of Rule 2 (c) (iii) of the CSS Rules, 1962. This order has been quoted in a preceding paragraph. It is because of this that notional promotion to all those who have been included in the Select List has been given from the first July of the Select List year, i.e., 1.07.2003, 1.07.2004, 1.07.2005 and 1.07.2006. This is the distinguishing feature between Rajendra Roy (supra) and the OAs under consideration.
11. In so far as the argument regarding discrimination, as urged by the learned counsel for the Applicant in OA 1409/2009 in view of the fact that some retired employees had been given the benefit of retrospective promotion is concerned, this has been explained by the Respondents by stating in the counter affidavit that the persons junior to those retired employees had been working as Deputy Secretaries on in situ promotion. It is stated that because of this reason the retired employees Sh. P.S. Pillai, Sh. R.S. Mathur and Sh. K.R. Sachdeva had to be given the benefit of retrospective promotion. We feel that there is no need for us to go any further in this matter as the OAs succeed on the basis of the discussion above.
12. In the result, the OAs are allowed. The Respondents are directed to grant notional promotion to the Applicants from the date their immediate juniors were promoted in various Select Lists of the years 2003, 2004, 2005 and 2006. The promotion would be notional but it would count towards increments and consequently in recalculation of post-retirement dues. The Respondents would recalculate the dues and make these over to the Applicants as expeditiously as possible but not later than 15.06.2010. There will be no order as to costs.
15. From the above analysis of the facts of various cases discussed in the light of the instructions contained in DOP&Ts OM dated 12.10.1998, the position that emerges is that the said OM has been issued in the context of holding the Departmental Promotion Committees [DPC(s)] late. Therefore, the case laws relevant to the context alone have to be considered. This Tribunal had the occasion to consider the aforesaid OM dated 12.10.1998 more than once. In R.S. Guptas case (OA No. 1519/2008) it has been made clear by this Tribunal that the said OM does not prohibit grant of notional promotion to the retired officers. While promotion may not be claimed as a matter of right from the date of attaining eligibility for promotion but once an employee has been illegally and arbitrarily denied consideration for promotion while in service, he cannot continue to be denied the benefit of the same only because he has already retired on superannuation. Therefore, the Tribunal directed the Respondents therein to convene the DPC to consider such employees for notional promotion, irrespective of the fact that their juniors have not been considered and promoted. In the said order, the co-ordinate Bench of this Tribunal has also constrained to observe that any provision that a retired employee who would have been considered for promotion if D.P.C. had been held in time, is required to be included only in the zone of consideration when a D.P.C. is held after his retirement, but he would have no right for promotion is a self serving one. The Tribunal has also observed such self serving provision which permits inclusion of the name in the zone of consideration but leads to no consideration and gives no benefit to the retired officer is liable to be regarded as unreasonable and arbitrary. Further, according to the said order of this Tribunal, as the retired employee does not hold any post beyond the date of retirement, extending notional benefit is not likely to have any adverse consequences for others in terms of their service, monetary or pensionary benefits that may be due to them. The date of appointment of the next immediate junior would also have no relevance when the D.P.C. is held after retirement. In the same context, the High Court of Punjab and Haryana in the case of Chaman Lal Lahanpal (supra) held that the petitioner therein on being found suitable, he could be fictionally granted the relief which had been denied to him for no fault of his. The relief could not be denied to him merely because a statutory authority viz. the committee as constituted under the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 had not met. The respondents cannot be permitted to take advantage of their own wrong. By sleeping over the matter, they cannot defeat the rights of a citizen available to him under the Constitution as well as the statutory provisions of the regulations. Of course, as held by the Apex Court in K.K. Vadera (supra), there cannot be a valid claim for promotion from the date of creation of the promotional post. Similarly, as held the Apex Court in Baij Nath Sharmas case (supra), the general principle that promotion need not be granted from the date of occurrence of the vacancy particularly when none of the juniors have been promoted cannot be faulted. In fact the DOP&Ts OM dated 12.10.1988 issued in the context of holding DPC belatedly and denial of promotion from the due date and it only says that for preparation of the zone of consideration correctly, names of the retired officials shall also be included in the panel (s) and such retired officials would not have any right for actual promotion. In other words, they cannot be put back to service. The said OM nowhere says that the retired employees are not entitled for notional promotion from due dates. It is only yet another principle in law that 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 retried person has been found fit by the DPC, such retired person would also be entitled for promotion retrospectively on notional basis from the date his immediate junior has been promoted. The Apex Court in Union of India& Others Vs. Sangram Keshari Nayak 2007 (6) SCC 704 says that while promotion is a fundamental right, right to be considered for promotion is a fundamental right and such a right for consideration brings within its purview an effective, purposeful and meaningful consideration. Therefore, consideration for promotion from due date is a fundamental right of an employee unless there is a conscious decision not to promote so by the competent authority for good and sufficient reasons. In a similar context, the Apex Court has already held in K.V. Jankiramans case (supra) that the employee would be eligible for all benefits of promotion retrospectively because he was prevented by the Government from working in the higher post.
16. Now the question to be answered in this OA is, if the junior has been entitled for retrospective promotion while his senior was in service but he has not been given such promotion and he has also not claimed any such retrospective promotion, whether the senior who retired from service can be denied promotion from the due date on the sole ground that his junior has not been given promotion while he was in service. As stated earlier, this question has already been answered in the affirmative by this Tribunal in R.S. Guptas case (supra) which went to the extent of saying that the date of appointment of the next immediate junior would have no relevance when the DPC is held after retirement. The Respondents in this case themselves have also given the positive answer to this question through their order dated 12.12.2011, notionally promoting a number of Joint Area Organizers due for promotion as Area Organizers during the vacancy years 2006-07, 2007-08, 2008-09 and 2009-10 retrospectively from their due dates and actually from the date of recommendation of the DPC. However, when they considered the vacancy year 2011-12 retrospectively in which the Applicant also belongs, they did not promote his juniors Shir M.M. Khandpal and Shri K.S. Marh retrospectively from their due dates. Instead, those who were entitled for promotion during the vacancy years 2011-12 and 2012-13 were promoted together prospectively vide order dated 07.08.2012. In the said order even though they were entitled for promotion before 30.04.2012, the date of retirement of the Applicant, they were given promotion only after 07.08.2012. As a result, the Applicant was not included in the said order dated 07.08.2012 for retrospective notional promotion. As in the case of JAOs of the previous vacancy years, they were also entitled for notional promotion from the due date, after the DPC met and recommended their names on a subsequent date. If the Respondents had followed the same principle of promotions for all the previous vacancy years before holding the year-wise DPC, the Applicant and other JAOs of the vacancy years 2011-12 would not have suffered the invidious discrimination. As observed earlier, the Applicant retired as JAO only from 30.04.2012 and he and his juniors, Mr. M.M. Khandpal and Mr. K.S. Marh, belonged to the same vacancy year 2011-12. In fact, his juniors were required to be promoted retrospectively from the due date in the vacancy year 2011-12 treating the crucial date for the purpose of eligibility of the officers concerned as on 01.01.2011. As already stated, this is exactly what the Respondents have already done vide Annexure A-10 order dated 12.12.2011. By the said order, 26 Joint Area Organizers belonging to vacancy years 2006-07, 2007-08, 2008-09 and 2009-10 have been promoted as AOs on notional basis from the due date and on actual basis from a subsequent date. The JAOs retired prior to the date of holding the DPCs but whose juniors have been promoted as AOs, were also promoted as AOs. However, vide the impugned order dated 7.8.2012, while promoting JAOs to AOs for the vacancy years 2011-12 and 2012-13, the department have arbitrarily promoted them only from the date of assuming their charge. Such discriminations in the matter of promotion cannot be allowed.
17. In the above facts and circumstances, this OA is allowed. Resultantly, we quash and set aside the order of the Respondent No.2 dated 07.08.2012 to the extent it denied notional promotion to the Applicant from the due date during the vacancy year of 2011-12. Consequently, we direct the respondent No.2 to promote the applicant as Area Organiser in the vacancy year 2011-12 w.e.f. the due date falling during the period from 01.01.2011 to 31.12.2011 on notional basis in terms of G.I., Dept. of Per. & Training., OM No.220111/3/1998-Estt.(D), dated the 17th September, 1998 (supra) with consequential benefits including, annual increments, if any due, enhanced pensionary/terminal benefits etc. We also direct that the Respondent No.2 shall pass appropriate order in terms of the above directions and make available the financial benefits arising thereto to the Applicant within a period of 2 months from the date of receipt of a copy of this order.
18. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
Rakesh