Central Administrative Tribunal - Delhi
Sh. R.S. Gupta vs Govt. Of National Capital Territory Of ... on 24 February, 2009
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-1519/2008
New Delhi this the 24th day of February, 2009.
Honble Mr. Justice V.K. Bali, Chairman
Honble Mr. N.D. Dayal, Member(A)
Sh. R.S. Gupta,
S/o Sh. (Late) Umrao Singh,
R/o House No. HU-24, Vishakha Enclave,
Pitampura, Delhi-88. . Applicant
(through Sh. S.N. Sharma with Sh. R.A. Sharma, Advocate)
Versus
1. Govt. of National Capital Territory of Delhi
through its Chief Secretary,
Delhi Sachivalaya, I.P. Estate,
New Delhi-2.
2. Principal Secretary (Finance),
Finance Accounts Department,
Govt. of National Capital,
Territory of Delhi, 4th Level,
A Wing, Delhi Sachivalaya,
I.P. Estate, New Delhi-2.
3. Director (Education),
Directorate of Education,
Govt. of National Capital Territory
of Delhi, Old Secretariat,
Delhi-54.
4. Sh. Ramesh Chander,
Senior Accounts Officer,
Finance Accounts Deptt.,
(Service to be effected through
the Principal Secretary (Finance),
Finance Accounts Department,
Govt. of National Capital Territory
of Delhi, 4th Level,
A Wing, Delhi Sachivalaya,
I.P, Estate, New Delhi-2. .. Respondents
(through Mrs. Pratima Gupta, Advocate)
O R D E R
Shri N.D. Dayal, Member(A) The applicant submits that he belonged to the Accounts Cadre of the Delhi Government and his Cadre Controlling Authority was the Finance Department. He started his service as Junior Accounts Officer in 1989 and over the years was appointed as Assistant Accounts Officer, then as ad hoc Accounts Officer and subsequently regularized by order dated 05.09.2003 in the pay scale of Rs. 7500-12000/- (Group-B) w.e.f. 14.08.2003 (Annexure A-7).
2. Thereafter, upon completing two years of service as Accounts Officer, he became eligible for promotion to the post of Senior Accounts Officer in the grade of Rs.8000-13500/- w.e.f. 14.08.2005. He was in the second place as per seniority amongst six Accounts Officers of general category who were eligible for the promotion. But, the D.P.C. meeting of 18.08.2005 was deferred after some deliberations for a date in September 2005 since complete ACRs of the applicant and certain other Accounts Officer were not available. However, no D.P.C. met in September 2005 and instead in a meeting held on 28.11.2005, after the applicant had retired on 30.09.2005, his name was not considered on the plea that he had already retired. As a result, his juniors came to be promoted by order dated 01.12.2005 (Annexure A-1). His representations were turned down by orders dated 30.08.2007 (Annexure A-2) and 28.12.2007 (Annexure A-3).
3. It is contended that the applicant cannot be held responsible for the non-availability of ACRs before the DPC on 18.08.2005 as he had himself sent the relevant ACRs with self-appraisal to the higher officers for report and review. The respondents have violated their own instructions dated 20.07.2005 issued by Secretary (Services), Government of NCT of Delhi and reiterated in the Circular dated 29.07.2005 by the Joint Director of Education (Admn.) at Annexure A-23 for timely writing and review of ACRs so that promotion is not denied on that account. If they could not complete the same, and make them available to the D.P.C. the applicant should not have to suffer and lose out on the benefit of promotion. There was nothing adverse against him and the Government Instructions as at Annexure A-24 should have been followed to consider the available preceding ACRs instead of postponing the DPC. In fact upon his regular appointment after D.P.C. as Accounts Officer w.e.f. 14.08.2003 the required service record and ACRs must have already been considered till that point in time. There is also no bar in the rules for granting notional promotion to an officer following D.P.C. that is held after his retirement. In fact his case for promotion was again taken up by the respondents after retirement and he was again asked to submit self appraisal for 2003-04 and 2004-05 but inexplicably this initiative was not taken to any positive conclusion.
4. In this background, the applicant prays for direction upon the official respondents to hold review D.P.C. immediately and grant promotion on notional basis to him to the post of Senior Accounts Officer w.e.f. 14.08.2005, the date on which he became eligible for promotion with all consequential monetary and other benefits of service.
5. The respondents have opposed the applicants claim and stated that retired officers have no right for actual promotion. If, as a result, juniors were promoted, it would be of no relevance. However, if a junior had been promoted while the applicant was in service, he would have been considered for promotion from the date of promotion of his junior. It has been clarified that when the applicant was considered for appointment as Accounts Officer on regular basis, the D.P.C. had considered ACRs for the preceding years because the ACRs from January 1999 to March 1999 and January 2003 to March 2003 were not available. This could be done because 5 years regular service on the feeder post was required for such promotion. However, in the case of promotion to the post of Sr. Accounts Officer only two years regular service as Accounts Officer was needed as per eligibility conditions in Recruitment Rules and, therefore, the ACRs for two years, after regular appointment of the applicant as Accounts Officer, were necessarily required for consideration by the D.P.C. Since the completed ACRs for the period 2003-2004 and 2004-2005 were not available, his case was not considered by the D.P.C. until 28.11.2005. However, on that date the applicant had already retired on superannuation.
6. It is further argued that the earlier D.P.C. which was fixed for 18.08.2005 was postponed due to non-availability of latest ACRs of the applicant and others. If the applicant fulfilled the eligibility criteria as on 14.08.2003, it would not follow that he could claim promotion as a matter of right from such date unless someone junior to him had been promoted earlier and there was nothing adverse. Therefore, no review D.P.C. is required to be held. It is not a question of responsibility of the applicant or otherwise in so far as the ACRs for the period 2003-2004 and 2004-2005 remained unavailable to the D.P.C. In fact, it was a requirement for holding of the D.P.C. The respondents have asserted that no Government instructions have been violated and the applicant was rightly asked to pursue with concerned officers for expediting the pending ACRs.
7. It is not disputed that the applicant had himself forwarded his ACRs after completing the self-appraisal/resume for the year 2003-2004 by his Note No. 251 dated 28.05.2004 to the Deputy Controller of Accounts (Education) and similarly the ACR for the year 2004-2005 by Note No. 1502 dated 28.04.2005, copies enclosed at Annexure A-8. And yet by communication dated 11.08.2005 at Annexure A-9, after nearly four months, he was told that as per office records, ACRs for the period from January 1999 to March 1999, January 2003 to March 2003, 2003-2004 and 2004-2005 were not available. He was, therefore, advised that submission of these ACRs might be pursued at his level at the earliest. By the time this letter was received the D.P.C. had already been deferred on 18.08.2005 to be held in September keeping in view applicants retirement due on 30.09.2005. When the applicant replied that he had already sent the ACRs, the Administrative Officer, Directorate of Education wrote to Finance Accounts Department on 13.09.2005 (Annexure A-11) informing that ACRs of the applicant and others were sent to Secretary (Education) after review but were not received back and the letter may be considered as non-availability certificate in view of the fact that the applicant is to retire on 30.09.2005. It was further stated that efforts were being made to locate the ACRs. In fact, even earlier by letter of 06.09.2005, the Directorate of Education had been asked to get missing ACRs for different periods including 2003-2004 completed and sent to the forthcoming meeting of D.P.C.
8. By another letter of 23.09.2005 to the Administrative Officer the applicant clarified that he had informed Deputy Secretary (Finance) by letter of 23.06.2003 that his ACR for August 2000 to March 2001 had been sent by Divl. Commisioner to Principal Secretary (Finance) on 09.08.2001. He also explained that with respect to period 27.12.2002 to March 2003 though he had given his resume to Deputy Controller of Accounts (Education) but actual period of service was less than 3 months for which ACR is not required. On the same date he also wrote to Principal Secretary (Finance) wondering why he was not being promoted by holding DPC when his ACR for 2004-2005 under sealed cover (Vide No. PA/PBD/PFA/2005/224 dated 28.08.2005) had already been delivered and certificate of non-availability for 2003-2004 had been sent to Finance Department on 13.09.2005. He was suspicious of their bona fides and sought promotion with retrospective effect from 14.08.2005.
9. Various other documents annexed with the O.A. reveal correspondence exchanged with the applicant and internally to secure complete ACRs. We find that constant efforts were made by the applicant to assist the authorities in obtaining completed CRs and placing them before the D.P.C. Apparently not all efforts succeeded despite strict instructions for timely action in such matters. The applicant has enclosed at Annexure A-23 observations of the Chief Secretary conveyed on 20.07.2005 by Secretary (Services) which read as under:-
It would seem unfair to deny promotion to the officials just because their senior officers were remiss in writing and reviewing confidential reports. I have issued instructions that all HODs and Secretaries would obtain certificate from officers working under them that they have written and/or reviewed ACRs of officials working under them not only for the current year but for the previous years also. These certificates would be submitted to Secretary (Services) by 31/07/2005. If the certificate are not received by that time, then I propose to make a mention of this fact in the ACR if delinquent HODs or Secretaries when I write theirs. These were addressed to all Principal Secretaries/Secretaries/Head of Departments in the Government of NCT of Delhi and were reiterated by the Joint Director of Education to all DDEs and Incharges of Branches.
11. The document at Annexure A-12 is apparently copy of the file notings for decision on convening D.P.C. These show that initially D.P.C. meeting was fixed on 18.08.2005 with approval of Principal Secretary (Finance). Work and Conduct report, integrity and vigilance clearance had been received. Agenda Notice and Meeting Notice were prepared one day in advance. The letter dated 06.09.2005 addressed to Directorate of Education by Deputy Secretary (Finance) indicates that some deliberations were held. However, a decision was recorded that Latest ACRs may be made available. We may meet next month. On 12.09.2005 a note was submitted to Principal Secretary (Finance) giving information that ACRs were received and seeking fixation of date & time for D.P.C. But after discussion with Principal Secretary (Finance) it was recorded that complete ACRs in respect of applicant and others had not been received and it was decided to get ACRs completed. Later on 16.09.2005 it was recorded that there is no provision of non-availability certificate.
12. The applicant refers to Government Instructions on DPCs, recorded in Swamys-Establishment & Administration, dated 10.04.1989 as amended on 27.03.1997 (copy enclosed) at Annexure A-24, which inter-alia emphasize the importance of making every effort to keep ACRs up-to-date lest this aspect is advanced as the reason for not holding D.P.C. in time. As pointed out by the applicant Para 6.2.1(c) is specially relevant and appears to have been disregarded by the authorities. It reads as under:-
Where one or more CRs have not been written for any reason during the relevant period, the DPC should consider the CRs of the years preceeding the period in question and if in any case even these are not available, the DPC should take the CRs of the lower grade into account to complete the number of CRs required to be considered as per (b) above. If this is also not possible, all the available CRs should be taken into account. It is not the case of the respondents that 5 years complete ACRs to hold the D.P.C. were not at all available. On the one hand they have failed to get ACRs completed and placed before the D.P.C. convened by them on 18.08.2005 and even after the extended time in September 2005, in disregard of the orders of the Chief Secretary resulting in repeated postponement of the DPC, and on the other, having followed the Government instructions at para 6.2.1(c), noticed above, for regular promotion of the applicant as Accounts Officer, they now attempt to justify a contrary approach for promotion as Sr. Accounts Officer insisting upon availability of ACRs for the two years of work as Accounts Officer on regular basis. In para 6.2.1(b) it is laid down that DPCs have to refer to CRs of the five preceding years, irrespective of the qualifying service prescribed in Rules. As such even if the qualifying service to determine eligibility was two years as Accounts Officer, ACRs were to be considered for preceding 5 years and to the extent unavailable, orders in para 6.2.1(c) should have been complied with instead of deferring the D.P.C. The respondents are, therefore, responsible for violating these Government orders as well and thus wrongly denying timely promotion to the applicant. In such a situation to say that unless a junior was promoted during the service period, the applicant, who has since retired, cannot voice any grievance would only compound the injustice meted out. The applicant had a right to a fair and just consideration of his case for promotion which has been denied.
13. The Honble High Court of Madhya Pradesh in State of Madhya Pradesh Vs. Surendra Nath, IAS and Ors. [2006(1)ATJ 1) was dealing with a matter which involved promotion to the post of Chief Secretary and 10 years CRs of eligible officers were to be considered but in the case of the respondent the CRs of 2 years were either declared nonest or were not available. It was noted that a Court cannot sit in appeal over the decision of the D.P.C. and substitute its own view, but if it comes to the conclusion that fair treatment has not been accorded or that the approach of the D.P.C. is vitiated by arbitrariness or bias, it can interfere with the recommendations made. As such the view taken by the Tribunal that the CRs for the preceding years should have been considered by the D.P.C. in such a situation was upheld. Accordingly, a review D.P.C. was directed. The decision on its recommendations was to be taken within a stipulated period of time since the respondent was to retire within a few months.
14. We therefore find that although there was nothing adverse against the applicant and relevant formalities were complete, the D.P.C. which was convened on 18.08.2005 wrongly deferred consideration of the applicants case for promotion by ignoring the rules and the law regarding taking preceding available ACRs into account. Another opportunity in September, 2005 was similarly frittered away by the respondents, thus unfairly and arbitrarily, denying consideration of the applicants promotion. The Honble Supreme Court in Union of India and Others Vs. Sangram Keshri Nayak [2007(6)SCC 704] while considering a matter in which promotion had been denied by wrongly following the sealed cover procedure held that the right to be considered for promotion is a fundamental right and brings within its purview an effective, purposeful and meaningful consideration.
15. The respondents in their reply dated 30.08.2007 at Annexure A-2 have explained to the applicant that there was no provision in any of the orders/instructions of the Government to grant promotions retrospectively. The question of granting notional promotion, retrospectively, as well as monetary benefits, has often come up for consideration before the Courts in the context of prejudice having been caused to a petitioner by the action or inaction on the part of the D.P.C and/or the authorities. In K. Madhavan and Another Vs. Union of India and Others [1987(4)SCC 566), the Apex Court held in Para-15 thereof as under:-
There can be no doubt that if the meeting of the DPC scheduled to be held is arbitrarily or mala fide cancelled without any reasonable justification therefor to the prejudice of an employee and he is not considered for promotion to a higher post, the government in a suitable case can do justice to such an employee by granting him promotion or appointing him to the higher post for which the DPC was to be held, with retrospective effect so that he is not subjected to a lower position in the seniority list. Again in State of Kerala and Others Vs. E.K. Bhaskaran Pillai [2007(6)SCC 524] the Apex Court while dealing with a matter relating to the grant of arrears of salary upon delay in granting promotion, inter alia, observed that when the administration has wrongly denied such dues, full benefits could be given including monetary benefits in accordance with law. The Court may grant benefits with retrospective effect in appropriate cases and the principle of no work no pay cannot be accepted as a rule of thumb as there can be exceptions.
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.
(N.D. Dayal) (V.K. Bali) Member(A) Chairman /vv/
16. We are, therefore, of the considered opinion that the applicant has been illegally and arbitrarily denied the benefit of promotion in the first instance by the D.P.C. dated 18.08.2005, which ignored the Government instructions and judicial pronouncements to consider the preceding ACRs and again by a D.P.C. dated 28.11.2005. Although the instructions noticed above permit inclusion of retired officers in the zone of consideration and their placement on the channel upon consideration by the D.P.C. they reveal a half hearted measure which stopped sort of appropriate benefit to them and only serve the negative purpose of keeping out the juniors. If for instance, the name of a retired officer is not included within the zone of consideration since he is not to be extended the benefit of promotion at all, it would only result in grant of promotion to a deserving officer though junior to them without any other adverse fall out. The procedure prescribed, therefore, appears to be irrational and unjustified. Noticeably, although the procedure does not extend the benefit of notional promotion to such retired officers, if not actual promotion, it also does not prohibit the same. No other rule has been brought to notice which forbids consideration of notional promotion in such a situation. Perhaps it is for this reason that the respondents have initiated the case for the applicants promotion even if the D.P.C. of 28.11.2005 had been held after his retirement. But they seem to have opted to play safe instead of Court. A similar view taken by the Deputy Secretary finds in his letter of 08.02.2008 addressed to the DoP&T expressing doubt whether he was in occupation of any vacant post. In K. Madhavans (supra), it has been specifically held that in a suitable case justice may need to be done by granting promotion to a higher post with retrospective effect. Significantly, extending the benefit of notional promotion to the applicant from the date of appointment of promotion of his immediate junior based upon the D.P.C. held on 28.11.2005 could only result in refixation of his pay and consequently pensionary benefits from such date and there would be no consequences affecting seniority or other promotees since the applicant would not actually hold any post in service.
17. We are, however, inclined to agree that the applicant could not claim promotion as a matter of right retrospectively from the date he became eligible for the same.
18. Having noted above that the minutes of the D.P.C. dated 28.11.2005 do not record any adverse conclusion with regard to the applicant and taking the same to imply that he stood recommended for promotion in case he had not retired, we direct the minutes of the D.P.C. to be placed before the Competent Authority who shall consider the same and pass appropriate orders extending to the applicant notional promotion from the date of appointment on promotion of the next immediate junior to the applicant and thereafter compute the pensionary benefits of the applicant based upon notional promotion as on that date and release to him such difference for such benefits with reference to the amounts already received by him. The above exercise shall be completed within a period of 3 months from the date of receipt of a certified copy of this order.
19. The O.A. is disposed of as above. No costs.
12. The Honble Supreme Court in Union of India and Others Vs. Sangram Keshri Nayak [2007(6)SCC 704) was dealing with a case where promotion was denied by wrongly following the sealed cover procedure. The Court held in Para-11 that promotion is not a fundamental right. Right to be considered for promotion, however, is a fundamental right. Such a right brings within its purview an effective, purposeful and meaningful consideration. Suitability or otherwise of the candidate concerned, however, must be left at the hands of the DPC, but the same has to be determined in terms of the rules applicable therefore It was also observed that right could be curtailed only by reason of valid rules which in turn, cannot be construed in a manner so as to curtail the right of promotion more than what was contemplated by law.
In K. Madhavan and Another Vs. Union of India and Others [1987(4)SCC 566), the Apex Court held in Para-15 thereof as under:-
There can be no doubt that if the meeting of the DPC scheduled to be held is arbitrarily or mala fide cancelled without any reasonable justification therefore to the prejudice of an employee and he is not considered for promotion to a higher post, the government in a suitable case can do justice to such an employee by granting him promotion or appointing him to the higher post for which the DPC was to be held, with retrospective effect so that he is not subjected to a lower position in the seniority list. But, if the cancellation or postponement of the meeting of the DPC is not arbitrary and is supported by good reasons, the employee concerned can have no grievance and the government will not be justified in appointing the employee to the higher post with retrospective effect. An employee may become eligible for a certain post, but surely he cannot claim appointment to such post as a matter of right. In State of Kerala and Others Vs. E.K. Bhaskaran Pillai [2007(6)SCC 524) the Honble Supreme Court was dealing with a matter relating to grant of benefit of arrears of salary for retrospective promotion granted with delay. It was observed that grant of monetary benefits with retrospective promotion would depend upon the facts from case to case. Sometimes when a person is superseded and challenging the same before Court and succeeds and direction is given for reconsideration of the case from the date persons junior to him were appointed, the Court may grant sometimes full benefits with retrospective effect and sometimes it may not. Particularly when the administration has wrongly denied his dues and in that case he shall be given full benefits including monetary benefits in accordance with law. The principle of no work no pay cannot be accepted as a rule of thumb and there can be exceptions.
The Honble High Court of Madhya Pradesh in State of Madhya Pradesh Vs. Surendra Nath, IAS and Ors. [2006(1)ATJ 1) was dealing with a matter which involved promotion to the post of Chief Secretary and 10 years CRs of eligible officers from 1993-1994 to 2002-2003 were to be considered but in the case of the respondent CRs of 2 years were either declared nonest or not available. The Court, inter alia, upheld the view of the Tribunal that the CRs for the preceding years of all eligible officers should have been considered by the D.P.C. The review D.P.C. was directed to be held and decision taken on its recommendations within a stipulated period of time since respondent was to retire within a few months.
The recommendations of a DPC are required to be considered by the accepting authority and not in arbitrary manner.
The Honble Supreme Court in Dhampur Sugar (Kashipur) Ltd. Vs. State of Uttaranchal and Others [2007(8)SCC 418) while delaing with the scope of judicial review in a matter of change of policy had occasion to observe that every power must be exercised bona fide and in good faith for the purpose for which they are conferred supported by reason and rational. It is, therefore, the duty of the Court to ensure that all authorities exercise arbitrarily, mala fide and in good faith if they are exercised with oblivious motive or for extraneous or irrelevant considerations, it cannot be termed as being in accordance with law.
wherein he had sought promotion on notional basis to the post of Senior Accounts Officer from 14.08.2005 when he became eligible since he was not responsible for the non-availability of ACRs before the DPC particularly as he had already sent the ACRs with self appraisal to the higher officers for the relevant years 2002-2003 and 2003-2004.
2. It is, therefore, contended that the respondents have violated their own instructions dated 20.07.2005 issued by Secretary (Services), Government of NCT of Delhi at Annexure A-23 reiterated in the Circular dated 29.07.2005 by the Joint Director of Education (Admn.) also at Annexure A-23. In this background, the applicant prays for direction upon the official respondents to hold review D.P.C. and grant promotion on notional basis to him to the post of Senior Accounts Officer w.e.f. 14.08.2005, the date on which he became eligible for promotion with all consequential monetary and other benefits of service.
3. In support of his case, the applicant submits that since he was appointed as Accounts Officer on regular basis after recommendations of D.P.C. w.e.f. 14.08.2003, it would be obvious that the D.P.C. had considered his service records and ACRs till that time. Subsequently, he had himself forwarded his ACRs after completing the self- appraisal/resume for the year 2003-2004 by his Note No. 251 dated 28.05.2004 to the Deputy Controller of Accounts (Education) and thereafter he had similarly sent the ACR for the year 2004-2005, it is Note No. 1502 dated 28.04.2005 as well, copies of which have been enclosed at Annexure A-8. He was, therefore, taken by surprise to receive letter dated 11.08.2005 (Annexure A-9) from the Assistant Accounts Officer of the Finance Accounts Department placed at Annexure A-9 communicating that as per office records, ACR for the period from January 1999 to March 1999, January 2003 to March 2003, 2003 2004 and 2004-2005 are not available. He was, therefore, advised that submission of these ACRs might be pursued at his level at the earliest. He, therefore, replied on 23.08.2005, the date on which he received the letter as per Annexure A-10 stating that the ACRs have already been forwarded by him and requested that they may be sent to the Finance Department for consideration in connection with promotion. The Administrative Officer, therefore, sent a letter dated 13.09.2005 (Annexure A-11) informing that ACRs of 2003-2004 were sent to Secretary (Education) after review but were not received back and the latter may be considered as non-availability certificate in view of the fact that the applicant is to retire on 30.09.2005. It was further stated that the efforts were being made to locate the ACRs.
4. The applicant in his representation dated 23.09.2005 (Annexure A-13) to the Administrative Officer to provide delay in forwarding of ACR for the period 27.12.2002 to March 2003 and again in his representation dated 23.09.2005 pointing out his anxiety that he may not suffer for administrative delay like convening of D.P.C. or absence of ACR.
5. From the minutes of the meeting of D.P.C. held on 28.11.2005 for promotion of Accounts Officers as Senior Accounts Officers, it is noticed that in fact 80% of the sanctioned strength of Accounts Officers/ Audit Officers in the pay scale of Rs. 7500-12000/- were to be provided functional promotional grade of Rs.8000-13500/- subject to the availability of the vacancies on the basis of seniority-cum-fitness and Accounts Officers. This was as per Notification dated 15.02.19944. The applicant was in the second place as per seniority and eligible having completed two years regular service in the grade of Account Officer. The integrity and vigilance clearance in respect of six eligible Accounts Officers had been received. However, the applicant was not considered as he had retired on superannuation on 30.09.2005. It is recorded in the Minutes that the ACRs as well as the integrity and vigilance clearance have been examined as well as seniority. Evidently, there was no ground mentioned for non-consideration of the applicant except that he had retired.
6. However, it appears that the respondents continued to consider the applicants case for promotion and wrote to him on 06.12.2005 asking him to submit his self-appraisal report for the period 2002-2003 and 2003-2004 to DCA (Edn.) as per requisitioned by the Finance Department for consideration for promotion. The applicant, therefore, wrote back drawing the attention to the Administrative Officer to the earlier correspondence whereby he had submitted his self-appraisal and they had also issued a letter, which indicated that the reports had gone to the Secretary (Education). Nevertheless, he again submitted self-appraisal reports separately for each of the years 2002-2003 and 2003-2004 for transmission to Finance Department. He followed up with a letter to the Lt. Governor on 13.04.2006 and again on 11.01.2007 to the Chairman, Public Grievance Commission seeking consideration for promotion as Senior Accounts Officer. Thereafter he wrote to the Principal Secretary (Finance), Delhi Secretariat giving the details of submissions of his various ACRs. The Finance Department wrote to the Department of Personnel & Training on 08.02.2008 seeking clarification where the applicants claim for promotion could be considered in a situation where ACRs were not available and that the applicant was not responsible for further action thereon after submitting his self-appraisal as the Rules were silent in that regard.
7. The applicant has enclosed at Annexure A-23 observations of the Chief Secretary dated 20.07.2005, which reads as under:-
It would seem unfair to deny promotion to the officials just because their senior officers were remiss in writing and reviewing confidential reports. I have issued instructions that all HODs and Secretaries would obtain certificate from officers working under them that they have written and/or reviewed ACRs of officials working under them not only for the current year but for the previous years also. These certificates would be submitted to Secretary (Services) by 31/07/2005. If the certificate are not received by that time, then I propose to make a mention of this fact in the ACR if delinquent HODs or Secretaries when I write theirs. These observations were addressed to all Principal Secretaries/Secretaries/Head of Departments in the Government of NCT of Delhi and were reiterated by the Joint Director of Education to all DDEs and Incharges of Branches. Further, the applicant refers to instructions dated 10.04.1989 as amended on 27.03.1997, which inter-alia lay down that:-
Where one or more CRs have not been written for any reasons during the relevant period, the DPC should consider the CRs of the years proceeding the period in question and if in any case even these are not available, the DPC should take the CRs of the lower grade into account to complete the number of CRs requied to be considered. If this is also not possible, all the available CRs should be taken into account. It is, therefore, contended that the D.P.C. could have considered the applicants CRs accordingly and has in fact acted in violation of the guidelines thus depriving the application of promotion. Even if the D.P.C. of 28.11.2005 had taken place the applicants case or was being pursued by the authorities but has not been brought to conclusion and as such it is not known whether the applicant would be granted promotion as Senior Accounts Officer or not even though the ACRs would have become available. It is submitted that the D.P.C. meeting was initially held on 18.08.2005 for the vacancy for the year 2005-2006 itself. Therefore, the ACRs are to be seen were for the years 1999-2000 and 2003-2004 since the applicant had been promoted to be post of Accounts Officer from 14.08.2003 on regular basis, the earlier CRs to those of 2002-2003 and 2003-2004 were in any case available could have been referred to in case of need. The respondents were duty bound to take timely action in terms of the Government instructions to make available the required service records and ACRs etc. to the D.P.C. and despite every effort on the part of the applicant the respondents have taken the plea that ACRs were not available and the second time that the applicant had already retired. Since the applicant is not responsible in any manner for the failure on the part of the authorities he should not be made to suffer specially when no instructions have been produced whereby notional promotion cannot be granted even if applicant had retired though it may not be possible to give actual promotion in such cases while the instructions provide for placing the name of retired officers including the names of retired officers in the zone of consideration. It is ironical even when they are found fit for promotion, no benefit is extended to them even notional specially when no fault can be attributed to the applicant in respect of the promotion exercise.
8. In their counter-reply, the respondents have reiterated that retired officers have no right for actual promotion. If juniors were promoted, it would be of no relevance as the applicant had already been retired before the D.P.C. was held on 28.11.2005. Only if a junior had been promoted while applicant was in service could there have any grievance and he would have been considered from the date of promotion of his junior. It has been clarified that when the applicant was considered for appointment as Accounts Officer on regular basis, the D.P.C. had considered ACRs for the preceding years because the ACRs from January 1999 to March 1999 and January 2003 to March 2003 were not available. This could be done because 5 years regular service on the feeder post was required for promotion. However, in the case of promotion to the post of Sr. Accounts Officer, only two years regular service was required as Accounts Officer and, therefore, the ACRs for two years after regular appointment of applicant as Accounts Officer were necessary for consideration by the D.P.C. Since ACRs of the applicant for the period 2003-2004 and 2004-2005 were not available, his case was not considered by the D.P.C. The earlier D.P.C., which was fixed for 18.08.2005 was not held but was postponed due to non-availability of latest ACRs of the applicant and others. Besides, the applicant was not considered by the D.P.C. held on 28.11.2005 as he had already retired on superannuation. If the applicant fulfilled the eligibility criteria as on a particular date, it would not follow that he can claim promotion as a matter of right from such date even if he was eligible unless someone junior to him had been promoted earlier and there was nothing adverse. It is not a question of responsibility of the applicant or otherwise in so far as the ACRs for the period 2003-2004 and 2004-2005 were not available but it was requirement for holding the D.P.C. No Government instructions have been followed.
9. In his rejoinder, the applicant contends that he should not have to suffer on account of inaction on the part of the respondents to complete the promotional process once started during the D.P.C. meting held on 18.08.2005 and even thereafter by not holding the meeting before his retirement. In fact, the applicant had completed two years on 14.08.2005 and there being nothing adverse against the applicant, the previous ACRs should have been considered if ACRs were not available at that time and he should have been considered for notional promotion, which is not prohibited in terms of Government instructions dated 12.10.1998 (Annexure A-24).
10. We have heard the learned counsel and perused the available records.
11. The learned counsel for the applicant emphasized that the applicant had timely submitted his ACR forms for self appraisal/ resume duly filled up for the years 2003-2004 and 2004-2005 as per Annexure A-8, which is not disputed but still the respondents were unable to consider his case for promotion in dthe D.P.C. convened on 18.08.2005 for want of these ACRs duly completed for which the fault lies on the Reporting Officer and Reviewing Officer concerned as well as the Department, which was unable to have the needful done timely. The material on record also supports the contention that Government of India orders/instructions are silent on the question of grant of notional promotion after the D.P.C. has found no ground against recommending a retired officer who was included in the zone of consideration, though actual promotion could not have been given due to retirement. It is strange while on the one hand in order to limit the zone of consideration and prevent additional juniors to be considered, a retired officer is to be included in the panel and it is grossly unfair and unjust that he should not be considered for being extended promotion even if it might be on notional basis. To say that earlier ACRs could not be considered would not be tenable in view of the Government instructions reproduced above and the delay in writing the ACRs is directly inflict those specific instructions of the Chief Secretary to the Government of NCT of Delhi reiterated of the way down in the line as well in advance of the day of D.P.C. viz. 18.08.2005. It is pointed out that respondents have not disputed the same.
12. Learned counsel for the respondents reiterates the stand taken in the written reply and submits that as per Government instructions, there is no provision for extending promotion to a retired person although the name is to be included in the zone of consideration besides the ACRs were not available to the D.P.C. there could not have been any recommendation by it on 18.08.2005.
13. We find that the Government of India instructions spell out univocally that there must not be delay in completing the ACRs and in holding timely DPCs so that Government servants may not be discouraged or feel de-motivated on the job. It is for this purpose that detailed instructions have been laid down. It would not be acceptable if DPCs are delayed for want of records, which it was the duty of the authorities to arrange and then to say that unless a junior was promoted, the senior, who has since retired, could not voice any grievance. It is evident that despite the constant effort on the part of the applicant to the extend possible, the respondents were unable to get the ACRs completed in time and made available to the D.P.C. of 18.08.2005 in time. They have, therefore, also violated not only the instructions of the Government of NCT of Delhi in this regard but also the instructions which provided for taking into consideration previous ACRs. The respondents on the one hand with regard to the applicants promotion as Accounts Officer, the respondents despite taking into consideration previous ACRs but in the case of promotion as Senior Accounts Officer, they insist that the specific ACRs of the period of work as Accounts Officer should have ben available.
14. We are, therefore, come to the conclusion that the respondents convened a D.P.C. on 18.08.2005 but on account of their own failure could not produce the complete ACRs before the D.P.C. on that date in respect of the applicant and others. In fact, the D.P.C. was proposed to be held in the subsequent month but even by then the ACRs were not obtained. They have ignored the Government of India orders, which provided for consideration of the preceding ACRs. In such an eventuality, therefore, by postponing the D.P.C. dated 18.08.2005 they have until and unless deprived the applicant of his right to consideration for promotion in accordance with law. As such, the respondents cannot be allowed to take advantage of their own wrong. No orders/instructions have been brought to notice, which prohibit grant of notional promotion to a retired officer if he is found fit by the D.P.C. upon acceptance of the recommendation. We are of the opinion that the applicant has made out a case for the relief prayed for in this O.A. The O.A. is allowed in above terms. No costs.
(N.D. Dayal) (V.K. Bali) Member(A) Chairman /vv/
15. Subsequently, when the D.P.C. met on 28.11.2005, the applicant had already retired. A perusal of the procedure to be followed by the D.P.C. in regard to retired employees who would have been considered for promotion if the D.P.C. had been held in time, contained in DoP&T O.M. dated 12.10.1998, reproduced in Swamys Establishment and Administration, copy at Annexure A-24, shows that it was felt that it would not be legally in order if eligible employees who are not actually in service when the D.P.C. is held are excluded from the zone of consideration as it would result in their juniors being considered who would have otherwise not been in the zone of consideration if the D.P.C. had been held in time. It is therefore permissible to include the names of retired officers in the panel but they have no right for actual promotion. Accordingly, the D.P.C. did not make any recommendation regarding the applicants promotion. 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 cannot but be regarded as unreasonable and arbitrary. By keeping out the juniors as well, in effect it reduces the zone of consideration, the validity of which may itself be doubtful.
dThe respondents have not brought to our notice any rule or order which forbids the same. As such, we feel that keeping in view the principles of justice, equity and good conscience, it would only be in the fitness of things if the applicant is considered for grant of promotion on notional basis from the date of his superannuation. A retired employee would not hold any post beyond the date of retirement and no service or monetary benefits already accrued to others nor pensionary benefits in due course would be affected. It is not the case of the respondents that the applicant was not eligible either when the D.P.C. was initially convened on 18.08.2005 or subsequently. It is also not their case that he was at any point of time found to be unfit for promotion even by the D.P.C. of 28.11.2005. Any review D.P.C. as on 18.08.2005 at this stage may affect the rights of third parties not before us which have been determined by the D.P.C. of 28.11.2005 and no error or mistake in this D.P.C. has been alleged.
18. We are, therefore, of the view that once an employee has been illegally and arbitrarily denied consideration for promotion while in service, he cannot continue to be denied the same only because he has since retired on superannuation. Promotion may not be claimed as a matter of right from the date of attaining eligibility for promotion. The date of appointment of the next immediate junior would also not be relevant where the appointment takes place after superannuation. The benefits of promotion that may become due in terms of enhanced pension and other retirement dues on appropriate re-fixation of pay upon notional promotion should, therefore, be extended to the applicant by granting promotion notionally from the date of superannuation, since actual promotion of a retired employee would not be a practical proposition. Noticeably, the principle of no work no pay would also have no relevance for an employee, who has retired and is drawing pension. As such, to bring the present matter to conclusion and shorten the litigation, the respondents are directed to grant promotion to the applicant to the level of Senior Accounts Officer on notional basis from the date of his superannuation and release to him the additional pension and retirement dues to which he would be entitled upon re-fixation of pay on the date of superannuation, within a period of three months from the date of receipt of a certified copy of this order. The O.A. is disposed of as above. No costs.
19. The respondents would be well advised to take up with the DoP&T, suitable reconsideration and revision of O.M. dated 12.10.1998 keeping in view also the observations made above.