Central Administrative Tribunal - Delhi
Dr. Ramakant Singh vs Union Of India Through on 5 September, 2014
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-2506/2011
Reserved on : 27.08.2014.
Pronounced on :05.09.2014.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Dr. Ramakant Singh,
S/o Sh. Ishwari Singh,
Working as Deputy Director(AE),
Posted in the office of Dy. Director
General of Civil Aviation,
Banglore. .. Applicant
(through Sh. Yogesh Sharma, Advocate)
Versus
1. Union of India through
The Secretary,
Ministry of Civil Aviation,
Govt. of India, Rajiv Gandhi
Bhawan, New Delhi.
2. The Director General of Civil Aviation,
Technical Centre, Govt. of India,
Rajiv Gandhi Bhawan,
New Delhi.
3. The Union Public Service Commission,
through the Secretary,
Shahjahan Road, New Delhi. .. Respondents
(through Sh. Rajinder Nischal and Sh. Rajesh Katyal, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) This O.A. was earlier filed seeking the following relief:-
(i) That the Honble Tribunal may graciously be pleased to pass an order directing the respondents to consider the case of the applicant for his promotion to the post of Deputy Director (AE) from the due date i.e. from the date when the applicant became eligible for consideration for promotion to the post of Dy. Director, with all the consequential benefits including the arrears of difference of pay and allowances.
That the Honble Tribunal may graciously be pleased to pass an order directing the respondent no. 2 to withdraw or defer their decision to fill up the post of Deputy Director (Aircraft Engineering) through UPSC in respect of Advertisement NO.16 in Employment News 28.8.10-3.9.10 till conducting the regular DPC for promotion to the post of Dy. Director (AE).
Any other relief which the Honble Tribunal deem fit and proper may also be granted to the applicants.
2. Later on, a series of amendments in this have been made. During the pendency of this O.A., the respondents issued an order dated 20.12.2013 by which the applicant was promoted as Dy. Director against vacancy of 2009-2010 w.e.f. the date of assumption of charge. Thus, most of the grievances of the applicant have been redressed. The only surviving grievance is that he has been given promotion w.e.f. the date of assumption of charge rather than the date from which he had become eligible for such promotion.
3. The facts of the case relating to the surviving grievance are that the applicant was initially appointed on 18.01.193 to the post of Project Officer in Civil Aviation Department. He was subsequently promoted as Senior Scientific Officer (now re-designated as Assistant Director) on 17.03.2003. He was further promoted as Deputy Director on ad hoc basis on 14.09.2010 but this ad hoc promotion was discontinued on 14.10.2011. According to the applicant as per Recruitment Rules five years of service as Assistant Director was required for promotion to the post of Deputy Director. The applicant completed his residency period on 17.03.2008. He also fulfilled all the other requisite educational and technical qualifications for promotion. A major penalty charge sheet issued to him on 12.02.2009 had been withdrawn and consequently did not come in the way of his promotion. Despite the fact that several vacancies were available, the respondents did not conduct the DPC for promotion to the post of Deputy Director after 2008. Consequently, the applicant was deprived of his promotion on regular basis.
3.1 On the other hand, the respondents decided to fill seven posts of Deputy Director through direct recruitment through UPSC. The applicant has contended that there was no justification on the part of the respondents for not holding DPC meetings for so long. This not only deprived the applicant of his promotion as Deputy Director but also delayed his promotion to the next grade. He has, therefore, sought quashing of the impugned order dated 20.12.2013 to the extent that he has been granted promotion w.e.f. the date of assumption of charge. He has sought directions to the respondents to grant him promotion as Deputy Director w.e.f. 01.01.2009 with all consequential benefits including the arrears.
3.2 In support of his case, the applicant has relied on the following judgment of Co-ordinate Benches of this Tribunal:-
(i) OA-1563/2011 (Sh. P.K. Udgata & Ors. Vs. UOI & Ors.) Dated 07.03.2012.
(ii) OA-280/2008 (Sh. Y.S. Chaudhary & Ors. Vs. UOI & Ors.) dated 07.03.2012.
(iii) OA-1467/2012 (M.S. Narwal Vs. GNCTD) dated 13.09.2013.
4. In their reply the respondents have not disputed the facts of the case. They have, however, stated that as per DoP&T O.M. dated 10.04.1989 all promotions are granted only with prospective effect even in cases where vacancies relate to earlier years. Thus, according to the respondents, the applicant is not entitled for retrospective promotion as prayed. In their support, they have relied on the judgment of Honble Supreme Court in the case of Nirmal Chandra Sinha Vs. UOI & Ors., (2008) 14 SCC 29 in which it has been categorically held that promotion takes effect from the date of being granted and not from the date of occurrence of vacancy or selection of the post. The respondents have also relied on the judgment of Honble High Court of Delhi in the case of UOI & Ors. vs. Vijender Singh & Ors., 176(2011) Delhi Law Times 247 (DB) wherein it has been categorically held that service jurisprudence does not recognize jurisprudential concept of deemed retrospective promotion unless there exists a rule or residual power. It was also held that no person can claim a right to be promoted from the date of occurrence of the vacancy. Thus, according to respondents, since in the present case there are no rules permitting retrospective promotion, the prayer of the applicant cannot be acceded to. In any case, the respondents have stated that the applicant has been given promotion against vacancy year 2009-2010.
5. We have considered the submissions of both sides and have perused the material on record. The applicant has relied on the judgments of this Tribunal in certain cases. We have perused each of them and found the position to be as stated hereunder:-
In OA-1563/2011 (supra) the following directions were given:-
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. In this case the applicants were officiating on higher post on ad hoc basis continuously till the time DPC was held which granted them regular promotion. Taking into account these facts directions were given to consider the applicants for promotion from the date of their ad hoc appointment or from the date of occurrence of regular vacancy. In the instant case, the applicant was not officiating as Deputy Director on the date when he was granted regular promotion. Hence, the facts of OA-1563/2011 relied upon by the applicant are clearly distinguishable from the facts of the present O.A. The applicant has also relied upon the judgment of this Tribunal in OA280/2008. In this O.A. the applicants were aggrieved as delay in holding DPCs for their promotion led to loss of seniority vis-`-vis the Direct Recruits who had joined in the meanwhile. Directions were, therefore given to the respondents to consider the applicants for promotion from the date on which vacancies arose and thereafter pass appropriate follow up order with regard to their seniority. In the case at hand the applicant has already been assigned vacancy of 2009-2010. Hence, this judgment is of no help to the applicant.
Lastly, the applicant has relied on the judgment in OA-1467/2012 (supra). In this case also following directions were given:-
8. In view of the above, it is ordered that seniority of the applicant will be fixed on notional basis with effect from 2007-2008, the year when the vacancy arose, without back wages but the period would count for increments, promotion and pension. This exercise will be completed within a period of 03 months from the date of receipt of a certified copy of this order. The O.A. is allowed. No costs. Clearly, the directions were only for notional promotion from back date with a view to protect the seniority of the applicant therein. This was allowed without back wages. As mentioned above, the applicant has already been assigned vacancy year 2009-2010. Hence, in terms of the aforesaid judgment, no further relief can be given to him.
5.1 On the other hand, the respondents have relied on the judgment of Honble Supreme Court in the case of Nirmal Chandra Sinha (supra). In Paras-7, 8 and 10 of this judgment, the following has been held:-
7. It has been held in a series of decisions of this Court that a promotion takes effect from the date of being granted and not from the date of occurrence of vacancy or creation of the post vide Union of India and others vs. K.K. Vadera and others 1989 Supp (2) SCC 625, State of Uttaranchal and another vs. Dinesh Kumar Sharma 2007 (1) SCC 683, K. V. Subba Rao vs. Government of Andhra Pradesh 1988(2) SCC 201, Sanjay K. Sinha & others vs. State of Bihar and others 2004 (10) SCC 734 etc.
8. xxx xxxx
10. In the present case, appellant Nirmal Chandra Sinha was promoted as General Manager on 29.11.1996, but he claims that he should be deemed to have been promoted w.e.f. 13.3.1996 with consequential benefits. We are afraid this relief cannot be granted to him. It is settled law that the date of occurrence of vacancy is not relevant for this purpose. 5.2 The respondents have also relied on the judgment of Honble Delhi High Court in the case of Vijender Singh (supra). In this case, it has been held that service jurisprudence does not recognize jurisprudential concept of deemed retrospective promotion unless there exists a rule or residual power and in exercise of which such a decision can be taken. Further, it has been held that no person can claim a right to be promoted from the date of occurrence of vacancy and he must take the promotion with its benefits from date of actual promotion.
6. In view of the above analysis, we are of the opinion that since the applicant has already been granted promotion against vacancy year of 2009-2010, no further relief can be granted to him. We, therefore, dismiss this O.A. No costs.
(Shekhar Agarwal) (G. George Paracken) Member (A) Member (J) /Vinita/