Central Administrative Tribunal - Delhi
R.G. Gupta vs Delhi Development Authority on 31 October, 2012
Central Administrative Tribunal
Principal Bench, New Delhi
OA No.1829/2011
Reserved on : 15.10.2012
Pronounced on : 31.10.2012
Honble Mr. Justice Syed Rafat Alam, Chairman
Honble Dr. Ramesh Chandra Panda, Member (A)
R.G. Gupta
s/o Shri Bhagwan Das More,
R/o BF-31, Janakpuri,
New Delhi 110 058. Applicant.
(By Advocate : Sh. Padma Kumar S. with Sh. R.A. Sharma
and Sh. K.K. Mishra)
Versus
Delhi Development Authority
Through its Vice Chairman
Vikas Sadan (B-Block)
1st Floor, INA,
New Delhi -110 023. Respondent
(By Advocate : Sh. Karunesh Tandon)
O R D E R
Dr. Ramesh Chandra Panda, Member (A):
The applicant, Shri R.G. Gupta has retired as Superintending Engineer on 30.04.2005. He has instituted the present Original Application being aggrieved by his non-promotion as Chief Engineer (CE) in Delhi Development Authority (DDA). Though promoted to the post of Superintending Engineer (SE) w.e.f. 08.09.1999 above the name of B.N. Saha vide letter dated 21.10.2004, he found some of the SEs were promoted as CE in 2004-05 but his name was not even considered. In his earlier lis he approached the Honble High Court of Delhi in WP(C) No. 19933/2004 which on transfer was registered as TA No. 104/2007 and was decided on 06.03.2009. The TA was allowed in the following terms:-
8. The immediate relief that the applicant deserves in the present case is that he has to be given opportunity to represent against the downgrading of his three reports as mentioned above, which would be possible only if the same are conveyed to him. The respondents shall communicate the reports of 1994-95, 1995-96 and 1996-97 as expeditiously as possible, and in any case, not later than a month from the date of decision of this case. The applicant would be at liberty to make representation, wherein he may rely upon the instructions that have been pressed into service in the present Application as well, besides raising other grounds that he may deem fit. On receipt of the representation of the applicant, the respondents shall decide the same within next one month. If the representation of the applicant is accepted, the respondents would consider by constituting a review DPC the name of the applicant for promotion on the post of Superintending Engineer when persons junior to him were promoted. In fact, if the representation of the applicant is accepted, he may be found by the review DPC to be entitled to be promoted over and above his seniors as well. It may be recalled that the applicant was not considered by the DPC that met in 2004 for promotion on the post of Chief Engineer on the plea that he was not within the zone of consideration. Admittedly, he would be in the zone of consideration if his representation, as may be made by him, is accepted. If the applicant, in the process aforesaid, may not be promoted in the year 2004 on the post of Chief Engineer, his entitlement for promotion in the DPC that was held in 2005 has, in any case, to be considered, as by that time, surely, it is not even the case of the respondents that he was not in the zone of consideration; he was simply not considered. Let the exercise ordained above be completed in the time-bound manner as mentioned above. The review DPC of 2005 has to be held within three months from today and the applicant be promoted if found fit. The rights of the applicant to be considered in the review DPC of 2004 is a separate exercise, which has to be done and completed as mentioned above. In furtherance of the above directions of the Tribunal, the matter was examined by the competent authority who did not find the same in favour of the applicant and the letter dated 07.01.2011 was issued to him. Reasons for rejecting his representation have been given in the following manner:-
You were assigned seniority w.e.f. 08.09.1999 vide order dated 21.10.2004 and your name was not forwarded along with others in the consideration zone. Hence, it was not considered by the DPC in its meeting held on 06.12.2004. It may be pointed out that no junior was promoted to the consideration for promotion and approved by the DPC in the select panel.
Further as per the directions of Honble CAT for review DPC of 2005, the first vacancy in the cadre of CE (Civil) became available on 01.05.2005 due to retirement of Shri I.M. Mathur, CE (Civil) on 30.04.2005, but no eligible candidate on the basis of service criteria, was available for consideration for promotion to the post of C.E. (Civil). Thereafter a relaxation in qualifying service was obtained on 19.01.2006 from the Authority. By that time you had already retired from the services of the Authority on 30.04.2005 on attaining the age of superannuation. Therefore, it is clear that there was no vacancy in the cadre of C.E. (Civil) upto April, 2005 i.e. upto the date of your retirement, was available. The meeting of the DPC for the year 2005-06 was held on 03.03.2006 and 18.04.2006 after obtaining the relaxation from the Authority in qualifying service criteria.
So far as the upgradation of the grading by the countersigning officer is concerned, the same cannot be considered due to reasons as already intimated vide our earlier reply referred to above. [Emphasis added by highlighting] Assailing the above communication of the respondent-DDA the applicant has approached the Tribunal in the present Original Application with the following relief(s):-
(a) Quash and set aside the impugned order dated 07.01.2011 (Annexure A-1);
Direct the respondent to hold a review DPC and grant the Applicant all the consequential benefits of the promotion to the post of C.E., if he is found recommended by the Review DPC with respect to the DPC held on 06.12.2004 including arrears of pay and also pensionary benefits;
Any other relief which this Honble Tribunal may be pleased to pass under the facts and circumstances of the case.
2. We have heard Shri Padma Kumar S. along with Sh. R.A. Sharma and Sh. K.K. Mishra, learned counsel on behalf of the applicant and Sh. Karunesh Tandon, learned counsel appearing on behalf of the respondent.
3. Learned counsel for the applicant has submitted a Written Synopsis on 16.10.2012, which is in continuation of his arguments advanced on the date of final hearing. It was submitted that the applicant was at 5th place in the seniority of SEs, which has not been disputed by the respondent. As per the seniority list of SEs dated 01.04.2005, S/Shri S.C. Sharma (Sr. No. 38), I.M. Mathur (Sr. No. 39), B.G. Roy (Sr. No. 41), Y.P. Kakkar (Sr. No. 44), and applicant (Sr. No. 48) were available on the date of consideration for promotion to the post of CE out of which, the SEs at Serial Nos.40, 42, 43, 45, 46 and 47 retired on 31.04.2003, 31.10.2001, 31.05.2003, 31.01.2004, 31.06.2003 and 31.05.2001 respectively. It is the contention of the learned counsel that as per the seniority list, the applicant being in the 5th position, he should have been considered for promotion to the post of CE. It is also submitted that even in the final seniority list of EE(C) dated 30.06.1997, the applicant is also senior enough and his case should have been considered for the vacant post of CE as due to the direction of the Tribunal he has been promoted to the rank of SE w.e.f. 08.09.1999 vide order dated 25.10.2004. The DPC, which met on 06.12.2004, did not consider the name of the applicant for promotion to the post of CE as his case was pending consideration in the litigation before the Honble High Court of Delhi at that time in WP(C) No. 19933/2004, which was finally decided by the Tribunal in TA No. 104/2007 on 06.03.2009. It is the case of the applicant that by the time the judgment came to be passed in his case by the Tribunal, he had already retired. However, the Tribunal directed two specific steps to be taken by the respondent namely (i) a review DPC to be held for the year 2004 and (ii) another review DPC to be held for the year 2005 if the applicant is not selected in the earlier review DPC. The contention advanced by Shri Padama Kumar S. is that the DPC year takes into account 1st April of the relevant year of DPC as the crucial date for consideration. The applicant was eligible to be considered for promotion to the post of CE for both the years i.e. 2004-05 and 2005-06 and the crucial date for the same being 01.04.2004 and 01.04.2005 respectively, and the applicant having retired on 30.04.2005 would have positively come within the zone of consideration. It is further submitted that undisputedly there were four vacancies and number of officers to be considered would be twelve as per the instant instructions of DoP&T dated 12.10.1990. In this regard, Shri Padma Kumar S., learned counsel for the applicant placed his reliance on the judgment of Honble Delhi High Court in the matter of Dr. Sahadeva Singh versus Union of India and Others [WP(C) No. 5549/2007 decided on 28.02.2012]. He also submits that in any case this Tribunal had already directed the respondent to conduct a review DPC for the applicant, but the same was not held as the applicants representation was considered and rejected. His contention is that one vacancy was available for which the applicant could have been considered and in this regard he took us through the pleadings wherein the copies of various communications of the respondent are available in support of his claim with regard to availability of vacancy for whch the applicant should have been considered. Drawing our attention to the pages 117-118 of the paper book, it is submitted that the applicants name was recommended on 25.04.2005, as per the information available in pages 69-70 of the paper book, but for the fact that he was retiring on 30.04.2005 i.e. four days before his retirement, his name was not considered for promotion to the post of CE. It was further contended that had the DoP&T OM on extended panel issued on 09.04.1996 been followed, the applicant would have been available for promotion as CE from 31.01.2005. In view of the above contention, Sh. Padma Kumar S. urges to allow the Original Application with directions to the respondent to convene a review DPC for the post of CE for the year 2004/2005 and in case the applicant is found fit he should be promoted at least notionally on the said post and his retirement benefits should be revised on the basis of the same.
4. On receipt of the notice from the Tribunal, the respondent-DDA has entered appearance through Sh. Karunesh Tandon, learned counsel and filed the counter affidavit on 09.11.2011 refuting the grounds taken in the O.A.
5. Shri Tandon would submit that applicants claim was not admissible as none of his juniors had been promoted to the post of CE(C) when the applicant was in service before his retirement. It is submitted that the applicant has been assigned seniority w.e.f. 08.09.1999 in the rank of SE as per the order dated 25.10.2004 but his name could not be forwarded along with others as at that time he was not within the zone of consideration for the post of CE and the DPC met on 06.12.2004 approved the panel of SEs who were senior to him. Further, had his name been forwarded for consideration and even approved by the DPC and put his name in the select panel, he would not have got his promotion to the CE (C) level as there was no vacancy left upto the date of his retirement. With regard to the CE (C) panel for the year 2005-06, the first vacancy in the cadre of CE (C) arose only on 01.05.2005 due to the retirement of Sh. I.M. Mathur, CE on 30.04.2005, and on that date no eligible candidate was available for consideration to the post of CE. The relaxation was obtained only in January, 2006 from the concerned authority, but by that time the applicant retired from service on attaining the age of superannuation. Taking into account the above facts, Sh. Tandon would submit that in the absence of any vacancy for the post of CE (C) and the applicant getting promoted vide order dated 21.10.2004 to the rank of SE though w.e.f. 08.09.1999, he would not have been in the zone of consideration for promotion to the post of CE(C). He, therefore, submits that the Original Application lacks merit and deserves to be dismissed.
6. In the background of the above contentions, the controversy for our consideration and determination are (i) whether the applicants name should have been sent for consideration for promotion to the post of CE (C) for the years 2004-05 and 2005-06 and (ii) whether non-convening of the review DPC has prejudiced the applicant?
7. In the instant case, the admitted fact is that the applicant was promoted to the rank of SE as per the respondents order dated 21.10.2004 and that too w.e.f. 08.09.1999. Admittedly, the applicant retired on 30.04.2005. Having got the retrospective promotion w.e.f. 1999 and fixation of seniority above Shri B.N. Saha, the applicants eligibility to be considered for promotion to the post of CE(C) for the panel year 2004-05 and 2005-06 has to be seen in regard to his qualifying service in the SE (C) grade. He was in service for both panel years, as the crucial date for consideration of the SEs for promotion to the post of CE is 1st April of the relevant year. In case of 2004-05, the crucial date for consideration was 01.04.2004 and for 2005-06 it was 01.04.2005 and on such crucial dates, the applicant was in service. Though the applicant was eligible to be considered in the DPC for the year 2004-05, which met on 6th December, 2004, yet his name was not sent for consideration. His promotion to the post of SE (feeder grade for the CE(C) post) w.e.f. 08.09.1999 was issued on 21.10.2004. Considering the number of vacancies, the applicants name may have been in the zone of consideration. He has indefeasible right to be considered. It must be noted that just after 45 days of his SE promotion order, the DPC for drawing CE(C) panel was held. To that extent, he feels aggrieved for non-consideration of his case. But, admittedly the panel drawn for promotion to the post of CE(C) contained only the names of SEs who were senior to the applicant and none of his juniors were in the said panel. Shri I.M. Mathur SE(C) with seniority number of 19 and Shri B.G. Roy SE(C) with seniority number of 22 were found fit and were promoted to the CE (C) grade as per the recommendations of the DPC meeting held on 06.12.2004. The seniority of the applicant being 29, we note that applicants seniors only were promoted to fill up the available vacancies of the higher posts. Thus, even we direct for re-consideration of the applicants name through a review DPC, the same would be only a technical and academic exercise and the applicant would not be getting any benefit out of it as the respondent very strongly contended that no further vacancy existed for conducting a review DPC for the purpose. Though the applicants counsel has strenuously argued that due to retirement of I.M. Mathur there existed one vacancy for which the applicant could have been considered, but the said argument has been repelled by the learned counsel for the respondent. On our careful and thoughtful consideration of the pleadings and the facts available on record, it is seen that Shri Mathurs vacancy arose on 01.05.2005 and by that time the applicant retired i.e. on 30.04.2005. Hence, we are convinced that there was no vacancy for which the applicants name could have been considered.
8. With regard to the panel year 2005-06, it is seen that the crucial date was 01.04.2005, and applicant has superannuated on 30.04.2005. The DPC to draw panel for CE(C) post for the year 2005-06 was held on 03.03.2006 and 18.04.2006 after obtaining the relaxation of the prescribed qualifying service criteria. Promotion held for the panel year 2005-06 being long after applicants retirement, in our view, no prejudice has been caused to him. The time being the essence in the matter of promotion, the applicant did not have time for promotion to the rank of CE (C) as he retired on 30.04.2005 and the vacancy in the rank of CE arose only on 01.05.2005 i.e. one day after his retirement.
9. There was fervent and persuasive argument on behalf of the applicants promotion even retrospectively and notional basis in order to enable him to get his retirement benefits in higher scale. This contention is examined from the legal angle. We may refer to the well settled position in law with respect to retrospective promotion. We perused catena of judgments with great care. We find similarity between the facts of the present OA and the facts in the judgment of Honourable Delhi High Court in Union of India Versus Rajendra Roy [W.P.(C)No.20812/2005 decided on 12.01.2007] where the Union of India had challenged the order dated 8.07.2005 passed by this Tribunal in OA No.192/2005. The Tribunal had directed the Union of India to consider Rajendra Roy the respondent in the WP(C) 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 the respondent retired on superannuation, the promotion should be given on notional basis, if the name of the respondent figured in the select list recommended by the Departmental Promotion Committee (DPC). The High Court then framed the issue thus:
2. 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 of the vacancy against which he could be promoted becomes available. The Tribunal has answered this question in favour of the respondent and that is how the Union of India is before us in this writ petition to challenge the said direction issued. 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. 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 judgments of Honourable 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)
10. One of the grounds advanced by the applicants counsel relates to the vacancy of CE(C) post for which the applicant could have been considered. This ground was disputed by the respondents. Purely on the basis of the availability of vacancy, the promotion cannot be granted if the candidates are not eligible for promotion. It is well settled proposition of law that promotion can take effect from the date of being granted and not from the date of the vacancy or creation of the post. In this regard, we rely on the ratio laid by Honble Apex Court in Nirmal Chandra Sinha versus Union of India and Others [2008-14-SCC-29].
11. 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.
12. Tested on the touch stone of the above trite law, we find that law laid in Rajendra Roys case (supra) is squarely applicable to the instant OA. 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 OA, the facts are similar to the Rajendra Roys case (supra). The admitted facts clearly indicate that the applicant in the present OA retired on 30.04.2005. None of his juniors in the rank of SE(C) was granted promotion to the CE(C) grade when he was in service. Hence, the claim of the applicant to be notionally promoted for pensionary benefits does not stand to logic.
13. Looking into totality of facts and circumstances of the case and guided by the judicial pronouncements as referred to above, we are of the considered opinion that though the applicant could have been brought within the zone of consideration for promotion to the post of CE (C) for the relevant years, but the same has not prejudiced him as none of his juniors were promoted when he was in service. Only one day after his retirement, one vacancy arose for which he could have been considered, had such vacancy arisen prior to his retirement. Therefore, we do not find any merit in the contentions advanced by the learned counsel for the applicant.
14. In the result, finding no merit in the Original Application, the same is dismissed leaving the parties to bear their respective costs.
(Dr. Ramesh Chandra Panda) (Syed Rafat Alam)
Member (A) Chairman
/naresh/