Central Administrative Tribunal - Patna
Vijay Srivastava vs East Central Railway on 12 July, 2023
-1- OA/050/00466/2021 with OA/050/00481/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
Reserved on: 25.04.2023
Pronounced on: 12.07.2023
CORAM
HON'BLE MR. M.C. VERMA, JUDICIAL MEMBER
HON'BLE MR. SUNIL KUMAR SINHA, ADMINISTRATIVE MEMBER
I. OA/050/00466/2021
Vijai Srivastava, S/o Late Shiv Shanker Lal, resident of 402-Saraswati
Saraswati
Tower Kusumpuram, near Shiv Mandir, P.O. P.O.- Rupaspur, Danapur--
801503. At Present working as Sr. Law Officer, O/o the Chief
Administrative Officer (Construction), E.C. Railway, Mahendru Ghat,
Patna.
...... Applicant.
By Advocate: - Shri J.K. Karn
-Versus
Versus-
1. The Union of India through the Chairman, Railway Board,
Government of India, Ministry of Railways, Rail Bhawan, New
Delhi- 110001.
2. The Secretary, Ministry of Railways, Government
Government of India, Rail
Bhawan, New Delhi-110001.
3. The Director/E(G.P.) I, Railway Board, Government of India,
Ministry of Railways (Railway Board), New Delhi-110001.
Delhi
4. The General Manager, East Central Railway, Hajipur-844101.
Hajipur
5. The Pr. Chief Personnel Officer, East Central Railway, Hajipur--
844101.
6. The Dy. CPO/Gaz. O/o The General Manager(P), East Central
Railway, Hajipur-844101.
...... Respondents
By Advocate: - Shri H.P. Singh, Sr. SC
-2- OA/050/00466/2021 with OA/050/00481/2021
II. OA/050/00481/2021
Ashok Kumar, Son of Sri Ratnakar Bandhu Trisharan, Senior Law
Officer, East Central Railway, Hajipur, Resident of Rail Vihar
Vihar,, Flat No.
1-C,
C, Near Rajendra Nagar Coaching Complex, Kankarbagh, Patna Patna--
800026 (Bihar).
....... Applicant.
By Advocate: - Shri M.P. Dixit
-Versus
Versus-
1. The Union of India through the Chairman, Railway Board,
Ministry of Railways, Rail Bhawan, Raisina Road, New Delhi-
Delhi-
110001.
2. The Secretary, Railway Board, Ministry of Railways, Rail
Bhawan, Raisina Road, New Delhi-110001.
Delhi
3. The Legal Advisor, Railway Board, Ministry of Railways, Rail
Bhawan, Raisina Road, New Delhi-110001.
Delhi
4. The Director (Estt.), Railway Board, Ministry of Railways, Rail
Bhawan, New Delhi-110001.
...... Respondents
By Advocate: Shri H.P. Singh, Sr. SC
ORDER
Per S.K. Sinha, A.M A.M:- Both the above OAs were heard together as the issue raised in both was common and the reliefs prayed for were also similar. Same advocate represented respondents in both the OAs while applicants' advocates adopted each other's submissions.
2. Applicants in the OAs have assailed the Railway Board notification dated 16.04.2021 (Annexure A/1) appointing them as Sr. Law Officer Group Group-'A' 'A' in Senior Scale w.e.f. 30.12.2020 against the panel for 2017 2017-18. The prayer(s) yer(s) in both the OAs is to declare the part of impugned order showing the effective date of promotion
-3- OA/050/00466/2021 with OA/050/00481/2021 from 30.12.2020 as null and void and to direct the respondents to grant them promotion as Sr. Law Officer in Group 'A' in Sr. Scale w.e.f. the vacancy yyear i.e.2017-18.
3. Applicants in both the OAs were appointed as Law Assistant in the Railways and were promoted as Law Officer Group-'B' Group 'B' in 2009 and Sr. Law Officer in Senior Scale of Group 'B' on ad ad-hoc hoc basis in 2017. Railway Board further promoted them to the post of Sr. Law Officer Group Group-'A' 'A' in Senior Scale w.e.f. 30.12.2020 against the panel for 2017 2017-18 vide impugned notification dated 16.04.2021 (Annexure A/1). Applicants pplicants have pleaded that they the had become due for promotion as Sr. Law Officer in Group 'A' in Senior Scale in 2017 after eight years of service as Law Officer Group 'B' in terms of the Recruitment Rules (RRs) notified on 20.07.1992. The Recruitment Rules were subsequently modified on 22nd December 2017 and according to the modified RR RR,, Law Offices in Level '8' in the pay matrix with six years of regular service were eligible for promotion to Senior Law Officer Group 'A'. Applicants have claimed that as they were promoted to the post of Law Officer with Level '8' in the pay matrix in 2009, they had become eligible for promotion as Sr. Sr Scale Officer Group 'A' w w.e.f. 2015. That the vacancies had become available in 2017 but respondents' department did not hold DPC in 2017-18.
18.
-4- OA/050/00466/2021 with OA/050/00481/2021 3.1 Applicants have further pleaded that Railway Board decided ed in 2013 that Group 'A' officers of 12 Miscellaneous Railway Services including 'Law' would be eligible for promotion on ad ad-hoc hoc basis to Junior Administrative grade ( JAG) on completion of three years of regular service in Senior Scale subject to availab availability ility of vacancies and otherwise fitness of candidates. Thus, in terms of these rules/guidelines, applicants were eligible for promotion as Senior Scale Group 'A' from 2017 2017-18 18 and for JAG from 2021. As respondents did not hold DPC in 2017 2017-18, their heir promotion promotion to Senior Scale was delayed.
3.2 Applicants have further pleaded that as per DoPT PT OM dated September 8, 1998, respondent department w was required to hold the DPC in time and that Hon'ble Supreme Court in Union Of India Vs N.. R. Banerjee Banerjeein order dated 16.10.1996 settled the law that DPC should hould be convened every year. Applicants have further relied on the decision of this Tribunal in OA No. 476 of 2016 (H. P. Gupta vs Union of India) and pleaded that the instant cases were squarely covered by the judg judgement .
4. Contesting the OA(s),, respondents filed Written Statement(s) Statement(s) maintaining that the impugned Railway Board notification promoting the applicants from 30.12.2020 was in accordance with the DoPT OMs, relevant Recruitment Rules and the law settled by by Hon'ble Supreme Court. Respondents pleaded that as per the DoPT OM dated 10.04.1989 (Annexure R/1) the cases requiring UPSC's
-5- OA/050/00466/2021 with OA/050/00481/2021 approval, the date of UPSC's letter communicating its approval or the date of actual promotion of the officer, whichever was later, had to be reckoned as the date of regular promotion of the officer. The Departmental Promotion Committee (DP (DPC) C) for promotion of applicants to Group 'A' / Sr. Scale post of Senior Law Officer against the promotion quota vacancies of 2016 2016-17 and 2017-18 was convened by the UPSC on 29.12.2020 and recommendations were communicated vide UPSC letter dated 30.12.2020 and hence the applicants we were re appointed as Senior Law Officers Group 'A'/ Senior Scale w.e.f. 30.12.2020 .
4.1 Respondents have further pleaded that the process for sending DPC proposal to UPSC for vacancy years 2016-17 and 2017-18 18 was initiated soon after UPSC convened the DPC DP for vacancy years 2014--
15 and 2015 2015-16 on 15.09.2017. However, due to the administrative and procedural requirements,, the process got delayed and after several revisions, final proposal was submitted on 24.09.2020 24.09.2020..
Applicants claimed that the delay was due due to genuine, bonafide and unavoidable reasons. Respondents have mentioned that the RRs for Law Department Group 'A' and Group 'B' officers was amended ed in December 2017 and that the DPC proposal for promotion was submitted to the UPSC on 10.05.2019 taking the amendments in RR into consideration consideration. Meanwhile, a representation was received from an officer for inclusion of his name in the integrated seniority list which had to be decided. After submission of the proposal UPSC
-6- OA/050/00466/2021 with OA/050/00481/2021 suggested some amendments and asked for fresh DPC proposal which was final finallyy sent on 24.09.2020.
4.2 Respondents have maintained that as per DoPT OM dated 29.07.2004 (Annexure R/2) if a department is unable to hold DPC in time for any bona fide reason, it does not give rise to any ves vested ted right for promotion from the date/year of vacancy vacancy. Respondents have also cited the judgment of Hon'ble Supreme Court in the case cases of Union of India Vs K K. K. Vadera & Ors [1989 1989 SCR Supl.
Supl (1) 751] and Nirmal Chandra Sinha Vs Union of India & Ors (Civil Appeal ppeal No.8058 of 2001) decided on 31.03.2008 in support of their stand. They also referred the order dated 07.05.2021 of Hon'ble Delhi High Court in WP (C) no. 2982 of 2021, order dated 25.09.2020 of CAT PB in O O.A..
No. 1385 of 2020 and order dated 22.11.2018 of Ernakulam Bench of CAT in OA No 23 of 2015. Respondents have stated that in case of Shri H H. P. Gupta his promotion dated 13.05.2015 was antedated to 01.04.2013 by the R Railway ailway Board as a special case and that the the Board order mentioned that this case cannot be taken as precedent.
5. In Rejoinder, applicants referred to the DoPT OM dated 10.04.1989 and pleaded that the OM makes it mandatory to hold DPC meetings every year for the year of vacancy. They also re referred ferred to the judgment of Hon'ble Apex Court in the case of Union Of India Vs N. R. Banerjee [ 1997 (9) SCC 287 ] and argued that applicants cannot be allowed to suffer for lapses or delay on part of
-7- OA/050/00466/2021 with OA/050/00481/2021 Respondents and that the applicants should be given prom promotion otion with effect from 22.12.2017 or from 01.04.2018.
6. After admission, we heard the parties and considered the submissions and materials on record.
7. Shri J. K. Karn and Shri M. P. Dixit made submissions on behalf of applicants adopting each other's arguments. Shri Karn submitted that applicants had become eligible for promotion in vacancy year 2017-2018 2018 in terms of both the RRs relating to Group 'A' and Group 'B' offic officers ers of Railway Law Department. Vacancies were available in 2017-18 18 and applicant applicants fulfilled the requisite qualifications for promotion. Respondents did not hold the DPC in vacancy year 2017-- 2018 and rather held the DPC in 2020 after three years and promoted the applicants from 30.12.2020. Because of this delay in promotion to the post of Sr Sr. Law Officer Group 'A' in Senior Scale applicants' further promotion to Junior Administrative Grade has got delayed. Ld Ld. Counsel submitted that the instant cases were squarely covered by the decision of this Tribunal in OA No. 749/2015 and OA No. 476 of 2016 in which Shri H H. P. P Gupta had approached the Tribunal against delay in holding the DPC in 2015 rather than the vacancy year 2012 2012-13. Tribunal directed Respondents R to count 01.04.2013 as the effective date for promotion to Shri H. P. Gupta to Senior Law Officer Group 'A' /Senior Scale. Respondents had challenged the Tribunal's decision before Hon'ble Patna High Court in
-8- OA/050/00466/2021 with OA/050/00481/2021 in CWJC No. 2868 of 2017 which was dismissed. The order of Tribunal in H.P.. Gupta case had attained finality nality and become settled law.
8. Shri M. P. Dixit submitted that respondents were required to hold DPC in the vacancy year itself in terms of Hon'ble Supreme court decision in N N. R. Banerjee case (supra).
(supra). He also referred the DoPT OM dated 10.04.1989 which required the departments to hold DPC every year to fill the vacancy. L/C submitted that applicants applicants'' promotion to Senior Law Officers Group 'A'/ Senior Scale and further to Junior Administrative Grade (JAG) was delayed for no faul faultt on their part. They were entitled for promotion to Group 'A' from 2017-18 18 and to JAG from 2021. Applicants have been suffering financial loss due to delay in holding the DPC which was because of laxity on part of respondents. Ld Ld.counsel counsel prayed to allow the OA in terms of the Tribunal's order in H P Gupta case (supra).
9. Shri H. P. Singh, Senior Standing Counsel appearing for respondents submitted that this Tribunal while deciding OA.
OA No..
749 of 2015 and OA No. 476 of 2016 did not consider several relevant judgments of Hon'ble Supreme Court and DoPT guidelines on the subject subject. Hence, the Tribunal's decision in OA No 749 / 2015 and OA No. 476 of 2016 decision was per incuriam. L/C further submitted that Hon'ble Patna High Court also while deciding the writ petition CWJC No. 2868 of 2017 on 20.04.2017 did not consider the law settled by Hon'ble Supreme Court and the DoPT guidelines on
-9- OA/050/00466/2021 with OA/050/00481/2021 the subject and hence the order of Hon'ble High Court was also per incuriam. Ld Ld. SSC averred that though the Tribunal's decision had attained finality, point of law in a case could be raised at any time. In support of his stand, Ld Ld. SSC referred the judgments judgment of Hon'ble Supreme Court in the cases of Union of India Vs K K. K. Vadera & Ors (supra) (supra), Nirmal Chandra Sinha Vs Union of India &Ors (supra ) and State of Uttaranchal Vs Dinesh Sharma [[Appeal (civil) 5573 of 2006]] and stated that in terms of these judgments law is settled that promotion takes effect from the date of being granted and not from the occurrence o of vacancy. He also referred the order dated 07.05.2021 of Hon'ble Delhi High Court in WP (C) no. 2982 of 2021 , order dated 25.09.2020 of CAT PB in OA No 1385 of 2020 and order dated 22.11.2018 of Ernakulam Bench of CAT in OA No 23 of 2015 reiterating si similar stand .
10. Shri Singh further referred the DoPT OM dated 10.04.1989 (Annexure R/1) sharing the "Guidelines on Departmental Promotion Committees" and drew attention to para 17.10 and para 17.11 of the guidelines. L/C submitted that for the cases in which DPC is Chaired by a Member of the UPSC, the date of Commission's letter forwarding fair copies of the minutes or the date of actual promotion of the officers , whichever is later, should be reckoned as the date of regular promotion. Applicant's prayer is thus against these guidelines.
-10- OA/050/00466/2021 with OA/050/00481/2021
11. Shri H. P. Singh drew attention to the Gazette notification dated 22.12.2017 ((Annexure A/6)) and submitted that fresh RRs for Group 'A' and Group 'B' officers of Law Department in Railways was issued in suppr suppression ession of the previous RRs of 1992 for these posts/ ranks and that the delay in submission of final proposal to UPSC was because of the amendment in the RRs and some other developments elaborated in the WS at Para 5 and 6. The delay in holding the DPC was on bona fide grounds and there was no laxity on part of respondents. He prayed to dismiss the OA.
12. In rebuttal, counsel for applicants submitted that amendment in the RRs was notified in December 2017 and had the respondents spondents been diligent and taken steps to complete the procedural requirements they could have sent the DPC proposal well before the amendments in RRs. Shri M P Dixit submitted that applicant of OA No. 466/2021 had approached the Tribunal with OA No. 318 of 2018 raising the issue of delay and Tribunall had observed that DPC should be held as early as possible. D Despite espite that respondents did not expedite the proposal for DPC .
13. Applicants have essentially made two fold prayers in both the OAs as under
under:
a. To declare the Railway Board notification (Annexure A/1) to the extent of fixing the applicants' date of promotion to the post of Senior Law Officer Group 'A' Senior Scale with effect from 30.12.2020 as null and void .
-11- OA/050/00466/2021 with OA/050/00481/2021 b. To direct the respondents to grant applicants promotion to the post of Senior Law Officer Group 'A' Senior Scale with effect from 01.04.2018 or earlier with all consequential benefits.
Thus the issue for adjudication in this OA is whether the notification fixing the date of applicants' promotion to the post of Senior Law Officers in Group 'A' /Senior Scale on regular basis with effect from 31.12.2020 was in accordance with the law/rules/guidelines or whether the date of promotion needs to be revised to 01.04.2018 04.2018 or any other date earlier.
14. Applicants' main contention is that they cannot be allowed to suffer for delay in holding the DPC. They were eligible for promotion since 2017 and vacancy was also exiting in that year year. DoPT guidelines and judgments of Hon'ble Supreme Court and other Court(s)/ Tribunals require that DPC should be held in the vacancy year. Instead of holding the DPC in the vacancy year i.e. 2017-18, 18, respondents held the DPC in 2020 and fixed the effective date of promotion as 30.12.20 30.12.2020. If the DPC were held in 2017-18, 2017 18, they would have got promotion latest by 01.04.2018, end of the panel year.
15. Respondents, on the other hand, have maintained that a promotion takes effect from the date of promotion being granted and not from the occurrence of vacancy and that delay in holding the DPC was because of amendment in the RRs in December 2017 and some other administrative developments. Respondents have
-12- OA/050/00466/2021 with OA/050/00481/2021 argued that applicants had no vested right for promotion from the date/year of vacancy as the delay in DPC was on account of bonafide reason reasons in terms of the DoPT OM dated 29 July 2004.
16. Before we advert to the legality of impugned order, it deems proper to peruse the judgments of Hon'ble Supreme Court, Various High Courts/Tribu Courts/Tribunals and rules/guidelines guidelines relied upon by applicants and respondents.
17. Applicants have maintained that this case is squarely covered by the decision of this Tribunal in OA No 476/2016 which was also filed raising same issue and this Tribunal had allowed the OA quashing respondents' order fixing 23.02.2015 as the date of applicant's promotion to the post of Senior Law Officer Group 'A' Senior Scale and directing to count 01.04.2013 [end of panel year 2012-13] 13] as the effective date for promo promotion.
tion. The Tribunal's order had attained finality as Hon'ble Patna High Court in CWJC No 2784 of 2017 upheld the Tribunal's decision and Railway Board implemented the order.
18. It is indisputable that the Recruitment Rules of 1992 for Group 'A' and Group 'B' Law Department officers of Railway was amended through Gazette notification on 22.12.2017 22.12.2017.. The amendment came well within the panel year 2017 2017-18.
18. It is trite to say that several administrative and procedural requirements in terms of RRs have to bee completed before submitting the proposal for DPC. Respondents were required to send the DPC proposal to UPSC in terms of the
-13- OA/050/00466/2021 with OA/050/00481/2021 amended RRs to avoid injustice and further grievances of persons who had become eligible under amended RRs. There was no such amendment ndment in the RRs during the vacancy year 2013 2013-14 14 when the applicant in OA 476/2016 had become eligible for promotion promotion. Thus, amendment mendment in the RRs in between the panel year makes the instant case distinguishable from OA No. 476/2016.
476/2016 The Tribunal's decision n and also the judgment of Hon'ble Patna High Court in CWJC No 2868 of 2017 cannot be directly applied in the instant case.
19. Applicants have put reliance on the judgment of Hon'ble Supreme Court in the case of Union of India & Ors. Vs. N.R. Banerjee &Or &Ors [(1997)9 SCC 287] laying down that DPCs should be convened every year, if necessary on a fixed date date. The relevant paragraph of the judgment is reproduced as under.
"D.P.Cs.
D.P.Cs. should be convened every year, if necessary, on fixed date,date, i.e. 1st of April or May. In the middle of the para, by way of amendment brought on May 13, 1995, it postulates that very often action for holding D.P.C meeting is initiated after the vacancy has arisen. This results in undue delay in filling up of vacancies and causes causes dissatisfaction among those who are eligible for promotion. It may be indicated that regular meeting of D.P.C. should be held every year for each category of posts so that approved select panel is available in advance for making promotions against vacancies cancies arising every year. Under para 3.2, the requirement of convening annual meetings of the D.P.C. should be dispensed with only after a certificate has been issued by the appointing authority that there are no vacancies to be filled by promotion or no officers are due for confirmation during the year in question. It would, thus, be seen that D.P.Cs. are required to sit every year, regularly on or before 1st April or 1st May of the year to fill up the vacancies likely to arise in the year for being filled up. The required material should be collected in advance and merit list finalised by the appointing authorities and placed before the D.P.Cs for consideration.. This requirement can be dispensed with only after a certificate is issued by the appointing authority authority that there are no vacancies to be filed by promotion, or that no officers are due for confirmation, during the year in question."
-14- OA/050/00466/2021 with OA/050/00481/2021
20. Applicants have also referred Para 3.1 of the 'Consolidated Instructions on Departmental Promotion Committees' ccirculated irculated vide DoPT OM dated 10.04.1089 which reads as under .
" 3.1 The DPCs should be convened at regular intervals to draw panels which could be utilized on making promotions againstthe vacancies occurring during the course of a year. For this purpose purpose it is essential for the concerned appointing authorities to initiate action to fill up the existing as well as anticipated vacancies well in advance of the expiry of the previous panel by collecting relevant documents like CRs, integrity certificates, seniority eniority list etc. for placing before the DPC. DPCs could be conveyed every year if necessary on a fixed date e.g. 1st April or May. The Ministries/Departments should lay down a time schedule for holding DPCs under their control and after laying down such a schedule the same should be monitored by making one of their officers responsible for keeping a watch over the various cadre authorities to ensure that they are held regularly. Holding of DPC meetings need not be delayed or postponed on the ground that recruitment recruitment rules for a post are being reviewed/amended. A vacancy shall be filled in accordance with the recruitment rules in force on the date of vacancy, unless rules made subsequently have been expressly given retrospective effect. Since Amendments to recruitment ecruitment rules normally have only prospective application, the existing vacancies should be filled as per the recruitment rules in force."
21. Evidently, the rules/ law require the Ministries/Departments to hold DPCs every year, preferably on a fixed date. TThe he concerned appointing authorities are legally required to initiate action to fill up the existing as well as anticipated vacancies well in advance of the expiry of the previous panel by collecting relevan relevantt documents like ACRs, CRs, integrity certificates, seniority list etc. for placing before the DPC.. In the instant case case,, vacancies for promotion were available in the year 2017 and the DPC should have been held in 2017-18 2017 and in that case, the applicantss promotions should have become effective latest from 01.04.2018 .
-15- OA/050/00466/2021 with OA/050/00481/2021
22. Respondents on the other hand have relied upon the judgments of Hon'ble Supreme in the cases of Union of India Vs K. K. Vadera &Ors (supra) , Nirmal Chandra Sinha Vs Union of India &Ors (supra) and State of Uttaranchal Vs Dinesh Sharma [[Appeal Appeal (civil) 5573 of 2006 2006]] and also upon para 17.10 and para 17.11 of the 'Consolidated Instructions on Departmental Promotion Committees' circulated vide DoPT OM dated 10.04.1089 and the Do DoPT PT OM dated 29.07.2004 (Annexure R/2).
23. Hon'ble Supreme Court in the case of K.K. Vadera's [1989 1989 Supp(2) SCC 625 625] 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 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."
24. In case of Nirmal Chandra Sinha Vs Union Of India [Appeal [Appeal (civil) 8058 of 2001], Hon'ble Supreme Court echoed the same view and observed as under.
"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 off 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."
XXX XXXXXX XXX "10. In the present case, appellant Nirmal Chandra Sinha was promoted as General Manager on 29.11.1996, but he claims that he should 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."
-16- OA/050/00466/2021 with OA/050/00481/2021
25. Hon'ble Supreme Court held d the same view in State of Uttaranchal Vs Dinesh Sharma [[Appeal Appeal (civil) 5573 of 2006] 2006] and the relevant observation is reproduced as under .
"28. It is clear from the above that a person appointed on promotion shall not get seniority of any earlier year but but shall get the seniority of the year in which his/her appointment is made. Therefore, in the present fact situation the respondent cannot claim promotion from the date of occurrence of the vacancy which is 1995-96 1995 96 but can only get promotion and seniority from the time he has been substantively appointed i.e. from 1999. Likewise, the seniority also will be counted against the promotion/appointment in the cadre from the date of issuance of order of substantive appointment in the said cadre, i.e. from 19.11.1999."
19.11.1
26. Respondents have also relied upon Para 17.10 and para 17.11 of of the 'Consolidated Instructions on Departmental Promotion Committees' circulated vide DoPT OM dated 10.04.1089 which reads as under.
"17.10 The general principle is that promotion of officers included in the panel would be regular from the date of validity of the panel or the date of their actual promotion whichever is later.
later 17.11 In cases where the recommendations for promotion are made by by the DPC presided over by a Member of the UPSC and such recommendations do not require to be approved by the Commission, the date of Commission's letter forwarding fair copies of the minutes duly signed by the Chairman of the DPC or the date of the actual promotion of the officers, whichever is later, should be reckoned as the date of regular promotion of the officer. In cases where the Commission's approval is also required the date of UPSC's letter communicating its approval or the date of actual promotion promotion of the officer whichever is later will be the relevant date. In all other cases the date on which promotion will be effective will be the date on which the officer was actually promoted or the date of the meeting of the DPC whoever is later. Where the meeting eeting of the DPC extends over more than one day the last date on which the DPC met shall be recorded as the date of meeting of the DPC."
27. Respondents' contention is that the DPC for promotion of applicants to Group 'A' / Sr. Scale post of Senior Law Officer against the promotion quota vacancies of 2016 2016-17 and 2017-18 18 was
-17- OA/050/00466/2021 with OA/050/00481/2021 convened by the UPSC on 29.12.2020 and recommendations were communicated vide UPSC letter dated 30.12.2020 30.12.2020. Hence, the applicants applicants' promotion as Senior Law Officers Group 'A'/ Senior Scale w.e.f. 30.12.2020 was in accordance with the above guidelines of DoPT..
28. Respondents have further argued that mere delay in DPC does not give any vested right for promotion from the date /year of vacancy if the department was unable to hold hold DPC in time for bonafide reason reasons. Respondents have relied upon DoPT OM dated 29 July 2004 in support which reads as under.
"OFFICE MEMORANDUM 29 July 2004 Subject:
Subject:- Induction of Group-BB officers of the Zonal Railways etc., into Group-A Group A of the various Railway Services Services- Date of effect of DPCs recommendations.
.............
The undersigned is directed to refer to Ministry of Railways (Railway Board) O.M. No. E(GP)/2004/1 E(GP)/2004/1/23 /23 dated 01.07.2004 on the subject mentioned above and to clarify that it is the consistent policy of the Government that a regular promotion takes effect only when a person is promoted in accordance with the provisions of the Recruitment Rules and after following the regular procedure for such promotions viz. on the recommendations of the regular DPC. Even where a person is already holding a higher post on adhoc basis, regular promotion can still not be made effective from a date prior to the date of meeting ing of the DPC, which considers and recommends the officer. Normally, there should be no delay in holding of DPCs and the system should be so Appeal (civil) 5573 of 2006be held as per the model calendar prescribed vide DoPT OM dated 8th September 1998. However, However, there may still be a case where the DPC may be delayed for a valid reason. If the Department is unable to hold the DPC in time for any bonafide reason, it does not give rise to any vested right for promotion from the date/year of vacancy in terms of some of pertinent judgments enclosed.
2. It would be apparent from the foregoing, foregoing, there is no concept of a 'date as due'in the matter of appointments including promotion, and, as such, it is not possible to accept the proposal of the Ministry of Railways Railways.
3. Director (E.1) has seen.
-18- OA/050/00466/2021 with OA/050/00481/2021 ( Vijay Kumar ) Under Secretary to the Govt. of India"
29. The rules and law discussed above clearly establish that (i) Ministries/ Departments are required to initiate action in advance to hold tthe he DPC within the panel year so that the officials get promotion in time ; (ii) the effective date of promotion is the date on which an official is granted promotion and not the date on which vacancy arises ; and (iii) that an official has no vest vested ed right to get promotion from the date on which vacancy arises if the DPC is delayed because of bona bona-fide fide reasons.
30. In the instant case, the DPC for promotion of applicants was delayed and held in 2020 and not in 2017 2017-18 18 when the vacancy had arisen. Respondents have maintained that the delay in holding the DPC was on account of bona bona-fide fide reasons and hence, the applicants' claim for antedating the date of promotion to 01.04.2018 was legally not tenable.
31. Thus the issue in instant case reduces to whether the delay in holding the DPC was on bona bona- fide reasons or it was due to laxity and laches on part of respondents.
32. Respondents have mentioned that delay was on account of amendment in the RRs for Law Department Group 'A' and Group 'B' officers in December 2017. The DPC proposal in terms of revised RRs was submitted to the UPSC on 10.05.2019. Meanwhile, a representation was received from an officer for inclusion of his n name ame
-19- OA/050/00466/2021 with OA/050/00481/2021 in the integrated seniority list which had to be decided. After submission of the proposal, UPSC suggested some further amendments and asked for fresh DPC proposal which was finally sent on 24.09.2020. DPC was convened by the UPSC on 29.12.2020 and recommendations ommendations were communicated vide UPSC letter dated 30.12.2020 and hence the applicants were appointed as Senior Law Officers Group 'A'/ Senior Scale w.e.f. 30.12.2020 .
33. Applicants have argued that after amendment in the RRs on 22.12.2017 22.12.2017, respondents dents took more than 15 month time in submitting the DPC proposal which was deliberate laches laches.. Hence, applicants cannot be made to suffer for laxity and laches on part of respondents.
34. Respondents have provided fairly detailed account of what caused the delay in submitting the DPC proposal. They have maintained that amendment in the RRs on 22.12.2017 was a crucial factor which caused the delay in submission of DPC proposal. We tend to aagree gree with the respondents' submission that the DPC proposal had to be submitted in terms of the new RRs after preparation of fresh eligibility list and collecting relevant documents like CRs, integrity certificates, seniority list of the concerned officials.
cials.
Respondents have also highlighted some administrative issues which they had to resolve before final submission of the proposal.
Applicants have not controverted those administrative facts.
facts Hence,
-20- OA/050/00466/2021 with OA/050/00481/2021 we are led to accept the reasons for delay put for forward ward by respondents as genuine and bona - fide.
35. In the end, we are inclined to hold that the delay in DPC for applicants' promotion was on account of bona fide reasons and not because of any deliberate laches or laxity on part of respondents.
Hence, applicants have no right to demand promotion from the vacancy year. Their promotion to the post of Senior Law Officers Group 'A'/ Senior Scale with effect from 30.12.2012 was in accordance with the rules/law. Both the OAs thus deserves to be dismissed as devoid of merit and are ordered accordingly. No cost.
[ Sunil Kumar Sinha] [ M.C. Verma ] Administrative Member Judicial Member Srk.