Central Administrative Tribunal - Delhi
M.S. Tewari S/O Late Shri R S Tewari vs Union Of India Through The Secretary on 2 December, 2010
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.2480/2009 Thursday, this the 2nd day of December 2010 Honble Shri Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) 1. M.S. Tewari s/o late Shri R S Tewari r/o 141 Pocket 6, Site 3, DDA (SFS) Flats, Nasirpur, Dwarka, New Delhi-45 2. B K Ghuliani s/o late Shri P N Ghuliani Block 9, House No.12, IInd Floor Old Rajinder Nagar, New Delhi-60 ..Applicants (By Advocate: Shri Yogesh Sharma) Versus 1. Union of India through the Secretary Ministry of Commerce & Industries Department of Commerce Udyog Bhawan, New Delhi-11 2. The Director General of Supplies & Disposals Jeevan Tara Building, Parliament Street New Delhi-1 3. The Secretary Union Public Service Commission Dholpur House, Shahjahan Road, New Delhi-11 ..Respondents (By Advocate: Ms. Jasmine Ahmed) O R D E R (ORAL)
Shri Shanker Raju:
Right to be considered for promotion on fair and equitable basis has been ruled to be a fundamental right guaranteed to a government servant by the Apex Court in Union of India & another v. Hemraj Singh Chauhan & others, 2010 (3) SCALE 272. In Gopi Chand Vishnoi v. State of U.P. & another, (2006) 9 SCC 694, the Apex Court ruled that if the promotion has been denied wrongly to a government servant, who retired on superannuation, the same has to be operated retrospectively post-retirement.
2. In the above backdrop, applicants, who admittedly are retirees of 2005, are being aggrieved by an order passed by the respondents on 19.5.2009 whereby their claim for promotion as Assistant Director (Supplies) (Grade-II) has not been acceded to on the ground that whereas in consultation with the DOPT, pursuant upon SIU/ERC Study and amendment of Recruitment Rules, some incorporations in the rules were formulated in 2000, which ultimately carried out in 2004 with the amendment of the Indian Supply Service (Group A). As such, keeping in light that no DPC was held after 1992 till 2005 and the cadre strength has been reduced from 57 to 37 and thereafter from 37 to 33, applicants could not be considered, as the recommendation of the DPC was implemented after the retirement of the applicants.
3. Learned counsel for applicants states that it is incumbent upon the respondents as per law, in case DPC has not been held for number of years, to hold year-wise DPC as per the vacancies accrued and to consider the claim of the applicants for that year. In such an event, applicants, who have completed the eligibility criteria, have been denied their fundamental right by not holding the DPC and holding it on 27.12.2005 after their retirement claim for promotion cannot be brushed aside and denied to them.
4. Learned counsel has relied upon the decision of the Chandigarh Bench of the Tribunal in OA 5/PB/2007. He has also relied upon the decision of the coordinate Bench of this Tribunal in Y.S. Chaudhary & others v. Ministry of Railways (OA-280/2008) decided on 24.1.2010 whereby relying upon the decision of the Apex Court in P.N. Premachandran v. The State of Kerala & others (Civil Appeal No.4100/1998) decided on 6.11.2003, it has been held that promotion has to be accrued to a person from the date the vacancy had accrued and in such an event following the ratio, learned counsel for applicants pleads that once the vacancy accrued from 1992 to 1995 mere amendment of the recruitment rules in 2004 would not affect retrospectively their right to be considered again under the un-amended rules, for which as no DPC has been held is not a fault attributable to them and since this has been denied to the applicants without a proper opportunity to be considered fairly at the right time before retirement, deprivation of promotion is a denial of their fundamental right.
5. On the other hand, learned counsel for respondents vehemently opposed the contentions and relied upon the DOPT OM of 12.10.1988 to contend that what is incumbent upon the DPC is to empanel those retirees but on implementation their actual promotion is out of question. It is also contended by learned counsel for respondents that one of the applicants was empanelled in the main list and the other list was in the extended panel. However, she also reiterated the stand taken in the impugned order.
6. We have carefully considered the rival contentions of the parties and perused the records.
7. It is trite law that whenever the vacancy accrues, the recruitment rules in vogue are to be applied even for promotion. Consideration for promotion and not the chances is a fundamental right guaranteed to the government servant. Mere non-holding of DPC, which has been explained by certain reasons by the respondents, transpires that whatever has been done in the past had culminated into a finality in 2000 as well, yet the respondents have not invoked the earlier recruitment rules to hold promotional process for considering the claim of the applicants despite the vacancies were available with them, though may be reduced from 57 to 37 and thereafter from 37 to 33. It is not the case of the respondents that the applicants had not found their places in the zone of consideration for such a consideration. If it is so, by non-holding the DPC, applicants have been wrongly denied their promotion, which now being denied to them ultimately by delayed process of the respondents and retirement is the only defence put forth by the respondents, which cannot be an impediment as per the decisions of the Apex Court (supra).
8. We are satisfied that the respondents have not acted in a legal manner to consider the claim of the applicants and rather it is denied to them. Accordingly, OA is allowed and as the applicants deserve consideration for promotion, they be accorded the actual promotion by giving effect to the finding of the DPC conducted in association with the Union Public Service Commission. The consequential benefits for promotion and revised pensionary benefits shall also be accorded to them, with arrears, within a period of three months from the date of receipt of a copy of this order. No costs.
( Dr. Veena Chhotray ) ( Shanker Raju ) Member (A) Member (J) /sunil/