Central Administrative Tribunal - Delhi
G.S.Bedi vs Union Of India Through on 12 March, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 1376/2009 New Delhi this the 12th day of March, 2011 Honble Mr. Justice V.K.Bali, Chairman Honble Mr. L.K.Joshi, Vice Chairman (A) G.S.Bedi, S/o Late Shri Mana Singh, R/o L-31, Lajpat Nagar-II, New Delhi-110024. Applicant (By Advocate Shri S.M. Dalal ) VERSUS 1. Union of India through Secretary, Ministry of Information & Broadcasting, Shastri Bhawan, New Delhi-110001 2. Director General, All India Radio, Akashvani Bhawan, Sansad Marg, New Delhi-110001 3. Secretary, Union Public Service Commission, Dholpur House, Shahjahan Road, New Delhi-110001. Respondents (By Advocates Shri S.M.Arif with Ms. Alka Sharma ) O R D E R Mr. L.K.Joshi, Vice Chairman (A):
The question to be answered in this OA is whether the inaction of the Respondents has led to delay in holding the meeting of the Departmental Promotion Committee (DPC) and, if yes, whether the Applicant would be eligible for promotion with retrospective effect to the posts of Inspector of Accounts and Deputy Director Administration.
2. The relevant facts of the case are narrated hereafter. The Applicant joined the service of All India Radio as Lower Division Clerk (LDC) in April 1968 and by dint of hard work rose to the post of Senior Administrative Officer in 1991. The Applicant became eligible for promotion to the post of Inspector of Accounts in the year 1999. He was promoted on ad hoc basis for six months from 26.04.2000 to 25.10.2000. After six months he was reverted back to the post of Senior Administrative Officer. Regular DPC for promotion to the post of Inspector of Accounts was not held in the year 1999-2000. The Applicant proceeded on deputation to National Institute of Social Defence under the Ministry of Social Justice and Empowerment in March 2001. Soon thereafter the Applicant was approved for promotion as Inspector of Accounts and he was given an option by the Office Memorandum dated 08.08.2001 either to return to the cadre to avail promotion or continue on deputation. By his letter dated 31.08.2001, the Applicant informed the second Respondent, Director General, All India Radio that he would like to continue on deputation. Again on 21.01.2003, the Applicant was informed by the second Respondent that he had been approved for promotion on regular basis to the post of Inspector of Accounts and was asked to give an option in the same terms as earlier in August 2001. By his letter dated 22.04.2003 he informed the second Respondent that the organisation where he was on deputation was considering extension of his period of deputation by the six months and that he accepted the offer of appointment to the post of Inspector of Accounts and that he would report for the same as soon as he was relieved from the Ministry of Social Justice and Empowerment. The Applicant also mentioned in his replies that he was in a higher scale on deputation than the scale of the post offered on promotion. He was reverted back to his parent Department in August 2004 and posted as Senior Administrative Officer. Aggrieved by the same, he approached this Tribunal in OA number 697/2005 praying for promotion to the post of Inspector of Accounts with effect from July 2001, when one Shri H Rachid, person junior to him, was promoted. Since the Applicant's representation was under consideration, the aforesaid OA was disposed of by order dated 31.03.2005 directing the respondents therein to consider the representation and pass appropriate orders thereon. Purportedly in compliance with the directions of the Tribunal, the parent organisation of the Applicant issued an order dated 07.07.2005 promoting him as Deputy Director of Administration on ad hoc basis. The Applicant challenged this order in OA number 2069/2005 seeking directions to the respondents in the said OA to hold year- wise DPCs for the posts of Inspector of Accounts and Deputy Director Administration for the years 2000-01, 2001-02, 2003-04 and 2004-05 and consider him for promotion to the above posts from the date of occurrence of vacancies. By its judgement dated 22.03.2007 the Tribunal gave the following directions:
5. In view of the facts and circumstances mentioned above, without going into the merits of the case, in our view, the interest of justice would be served if the official respondents are directed to complete the exercise regarding regular promotion of the applicant to the post of Inspector of Accounts and Deputy Director in a time bound manner.
6. The OA is, therefore, disposed of with a direction to the parent organisation of the applicant to complete the supply of remaining documents to respondent no. 4 (UPSC) within a period of three weeks. Respondent No. 4 shall then ensure that the concerned DPC meetings are held, as per the rules and regulations in force, within a period of three months from the date of receipt of the requisite information from the parent organization of the applicant. The applicant is given the liberty to seek appropriate remedies, as per law, in case he is aggrieved by the orders of the respondents in this regard. There will be no order as to costs. Pursuant to the above directions the second Respondent passed an order dated 25.10.2007, stating therein that the Applicant had refused promotion to the post of Inspector of Accounts in 2001 and chose to remain on deputation and the second time in the year 2003, when he was again offered promotion to the post of Inspector of Accounts, he did not give any unconditional acceptance for promotion, because of which he could not be promoted. It was further stated in the impugned order that in view of the above he could not be given pro forma promotion because the promotion had to be from prospective date. It was further stated that he was given ad hoc promotion as Deputy Director Administration on 18.07.2005 directly from the post of Senior Accounts Officer by taking into account his combined service in the grade of Senior Accounts Officer and Accounts Officer as per the eligibility criterion for promotion to the post of Deputy Director Administration.
3. In his submissions before the Tribunal, the learned counsel for the Applicant contended that he was eligible for promotion to the post of Inspector of Accounts in 1999-2000 and instead of promoting him on ad hoc basis, he should have been promoted on regular basis by holding the meeting of the DPC. He would contend that DPCs for the post of Inspector of Accounts were held for the years 2002-03 till the year 2008-09, but the Applicant was never considered for promotion. Further, he was promoted regularly to the post of Deputy Director Administration with effect from 27.05.2008, whereas he should have been promoted with effect from 01.06.2001. The Respondents have not held the meetings of the DPCs regularly for each vacancy year as prescribed by the Department of Personnel and Training (DOP&T) in its Office Memoranda dated 10.04.1989, 08.09.1998 and 13.10.1998. The Office Memorandum of April 1989 provides that the DPCs should be convened at regular annual intervals to draw panels against the vacancies occurring during the course of the year. The learned counsel would point out that paragraph 3.2 of the Model Calendar for DPCs, prescribed by the Office Memorandum of 13.10.1998, envisaged that administrative action for holding DPCs should be initiated at least eight months before the commencement of the vacancy year. It was pointed out that the Model Calendar became operative from 01.04.2000, as per paragraph 10 of the above said Office Memorandum. Advertence has also made to the instructions contained in the Office Memorandum dated 10.04.1989 regarding promotion of officers on deputation. The instructions placed at Annex A-10 have been reproduced below:
17.4.1. If the panel contains the name of a person who has gone on deputation or on foreign service in the public interest including a person who has gone on study leave, provision should be made for his regaining the temporarily lost seniority in the higher grade on his return to the cadre. Therefore, such an officer need not be reconsidered by a fresh DPC, if any, subsequently held, while he continues to be on deputation/foreign service/study leave so long as any officer junior to him in the panel is not required to be so considered by a fresh DPC irrespective of the fact whether he might or might not have got the benefit of proforma promotion under the NBR. The same treatment will be given to an officer included in the panel who could have been promoted within the currency of the panel but for his being away on deputation.
17.4.2. In case the officer is serving on an ex cadre post on his own volition by applying in response to an advertisement, he should be required to revert to his parent cadre immediately when due for promotion, failing which his name shall be removed from the panel. On his reverting to the parent cadre after a period of two years, he will have no claim for promotion to the higher grade on the basis of that panel. He should be considered in the normal course along with other eligible officers when the next panel is prepared and he should be promoted to the higher grade according to his position in the fresh panel. His seniority, in that event, shall be determined on the basis of the position assigned to him in the fresh panel with reference to which he is promoted to the higher grade. (If the panel contains the name of an officer on study leave, he should be promoted to the higher post on return from the study leave. He should also be given seniority according to his position in the panel and not on the basis of the date of promotion.). It has been urged that no satisfactory grounds have been given by the Respondents for delaying the meetings of the DPCs. Only administrative grounds have been pleaded in the counter affidavit, which cannot be considered satisfactory reason for delaying the holding of DPCs. The reason given by the Respondents in paragraph 5 (G) of the counter affidavit for the delay that the UPSC was not entertaining any proposal for promotion of the personnel of Prasar Bharti because it was an autonomous organisation till it was decided by the first Respondent, Ministry of Information and Broadcasting by the communication number 45011/77/2001-BA-P, order number 21/2000-BA-P dated 18.09.2002 that the employees working in Akashvani and Doordarshan were Government Employees, was challenged by the learned counsel for the Applicant. It was argued that the communication dated 18.09.2002 was not about the meetings of DPCs and had not been communicated to the UPSC. The UPSC was not properly briefed by the first Respondent by not bringing to its notice Section 11 of the Prasar Bharti Act, which provided safeguards to the employees till they opted for the Prasar Bharti. The aforesaid section has been extracted below:
Transfer of service of existing employees to Corporation.
(i) Where the Central Government has ceased to perform any functions which under Section 12 are the functions of the Corporation, it shall be lawful for the Central Government to transfer, by order and with effect from such date or dates as may be specified the order to the Corporation any of the officers other employees serving in the Akashvani or Doordarshan and engaged in the performance of those functions:-
Provided that no order under this sub-section shall be made in relation to any officer or other employee in the Akashvani or Doordarshan who has, in respect of the proposal of the Central Government to transfer such officer or other employee to the Corporation, intimated within such time as may be specified in this behalf by the Central Government, his intention of not becoming an employee of the Corporation. It was argued that it was only because of casual and disinterested approach of the Respondents that the DPCs could not be convened in time and promotion of the Applicant was delayed. The Applicant was eligible for promotion as Deputy Director Administration with effect from 01.06.2001 and a vacancy was also available, yet the Respondents did not convene a meeting of the DPC. It was argued that the Respondents were bound to prepare year wise panels, even if the meeting of the DPC was delayed and promote the Applicant from the date of his eligibility, when the vacancies became available. It was also pointed out during the course of submissions that the Applicant and some other persons were promoted by order dated 25.08.2008, without making any reference to the date of the DPC and whether it is considered promotions on the basis of year wise vacancies. The Applicant and others were promoted with effect from 27.05.2008, without giving any clue as to how the date had been picked up for promotion. The learned counsel for the Applicant would contend that the act of the Respondents in promoting him from 27.05.2008 was completely irrational. It was contended that in paragraph 4 of the impugned order dated 25.10.2007 also it had been mentioned that the Applicant had been promoted to the post of Deputy Director Administration on ad hoc basis with effect from 18.07.2005, which demonstrated that the Respondents had not taken into account that the vacancy had existed much prior to 27.05.2008, a date arbitrarily arrived at for promoting the Applicant. The learned counsel would further contend that the Applicant had been promoted on ad hoc basis on 18.07.2005 for one year. Although the period of his ad hoc promotion was not extended, because DOP&T did not agree to further extension, yet he continued to work in the capacity of Deputy Director Administration and was, therefore, given the salary for that post up to the year 2008, when he was regularly promoted. However, the salary for the period from 2006 to 2008 was recovered by the Respondents on the ground that DOP&T had not agreed to extend the period of ad hoc promotion of the Applicant. The learned counsel would contend that the Respondents have nowhere denied that he was not working in the capacity of Deputy Director Administration throughout the period from 2005 to 2008. Therefore, recovery of the salary already paid for the work done by him was most inconsiderate and callous.
4. It was further contended that there was no reason why the Applicant should not have been posted as Inspector of Accounts on his return from deputation. The Respondents, it was submitted, rejected his claim on the frivolous ground that his acceptance of promotion was not unconditional. The Respondents had not indicated in the letter dated 21.01.2003 about how the letter of acceptance had to be worded. Moreover, the letter of acceptance given by the Applicant could not be considered to be conditional. The learned counsel would contend that the action of the Respondents in not posting him as Inspector of Accounts, on his return from deputation, was totally arbitrary and perverse. It was also contrary to the instructions contained in paragraph 17.4.1 of the Office Memorandum dated 10.04.1989 of the DOP&T, which has already been adverted to above. The learned counsel would vehemently contend that the Applicant could not have been debarred from promotion after joining back from deputation. The Respondents admitted in reply dated 27.10.2006 (Annex A-15) to a query under the Right to Information Act, 2005 that he had not been debarred for promotion.
5. The Respondents, while admitting that the Applicant was the senior most person in the grade of Senior Administrative Officer, would contend that he could not be promoted to the post of Inspector of Accounts in the year 1999-2000 because the DPC could not meet that year due to administrative reasons. However, he was promoted on regular basis in the year 2001, when he did not join, in spite of the offer of appointment sent to him because of being on deputation. He was again promoted in the year 2003, when again he did not join. In respect of promotion for the post of Deputy Director Administration also it was urged that the Applicant could not be promoted in time because holding of DPCs was delayed due to administrative reasons. The Respondents had filed an additional affidavit to explain the reasons for delay in holding the meeting of the DPC. An undated note from file number 1/19 (II) 2007-AP-4 has been placed on record to explain the reasons for delay. One reason given is that the integrity certificate in respect of two officers could not be given because their folders of the Annual Confidential Reports were not available with the Directorate General of All India Radio, having already been sent to the Ministry of I&B/UPSC. It is further mentioned that the UPSC refused to hold the meeting of the DPC in the year 2001 because the recruitment rules for the concerned post had not been finalised by the Prasar Bharti. It is stated in the same paragraph that the employees of the Prasar Bharti continued to remain Government employees. It is further stated that the proposal for regular promotion of 11 officers in 2002 did not fructify because of some information/documents, including ACR dossier not being available. Thereafter, there is no explanation for delay between the years 2002 to 2007. There is no explanation as to why the DPC for the post of the Inspector of Accounts could not be held in the year 1999-2000. A letter dated 18.07.2005 from UPSC addressed to the first Respondent, Ministry of I&B has also been placed on record, as a justification for delay in holding of the DPC. On perusal of the document, it is clear that the queries made in the aforesaid communication are just routine in nature and long delay in holding of the meeting of the DPC cannot be justified on the basis of this letter.
6. We have given our utmost consideration to the rival contentions and carefully gone through the records placed before us.
7. The DOP&Ts instructions regarding frequency of the meetings of the DPC, issued on 10.04.1989 read thus:
Frequency at which DPC should meet 3.1. The DPCs should be convened at regular annual intervals to draw panels which could be utilized on making promotions against the vacancies occurring during the course of a year. For this 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 list etc., for placing before the DPC. DPCs could be convened every year if necessary on a fixed date, e.g., Ist 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 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 Rules normally have only prospective application, the existing vacancies should be filled as per the Recruitment Rules in force.
[Very often, action for holding DPC meeting is initiated after a vacancy has arisen. This results in undue delay in the filling up of the vacancy causing dissatisfaction among those who are eligible for promotion. It may be ensured that regular meetings of DPC are held every year for each category of posts so that an approved select panel is available in advance for making promotions against vacancies arising over a year.] 3.2 The requirement of convening annual meetings of the DPC 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. Thereafter, Model Calendar for DPCs was issued by the Office Memorandum dated 08.09.1998 and 13.10.1998. The said OM reiterated the instructions of 10.04.1989 and for its effective implementation laid down a time schedule. It was stressed that sufficient time should be given to UPSC to hold the meeting of DPC and, keeping this in view, the administrative action for the meeting of the DPC should be initiated at least eight months in advance. It was emphasised that:
4. As already pointed out in Para 2 above, the success of the Model Calender would depend on the Ministries/Departments furnishing the complete proposal to the UPSC with relevant ACRs, integrity certificate, copy of Recruitment/Service Rules, seniority list, penalty statement and correct vacancy position, etc. In accordance with the direction contained in Cabinet Secretarys D.O. Letter No. DoP&T /39022/7/97-Estt. (B), dated November 19, 1997, addressed to all Secretaries to Government of India, while referring the DPC proposals to the UPSC, the Joint Secretary (Administration) of the Ministry/Department concerned would certify that the information and documents have been furnished in accordance with the check-lists prescribed by the Department of Personnel and Training vide its Office Memorandum No. 22011/5/86-Estt. (D), dated April 10, 1989, read with Office Memorandum No.22011/6/86-Estt. (D), dated May 30, 1986. [In cases where the Joint Secretary (Administration) is not concerned with the post (s) for which reference is being made to the UPSC, the required certificate shall be granted by the Joint Secretary/Additional Secretary concerned.] It may be acceptable that sometimes it may not be possible to hold the meetings of the DPCs because of stay granted by the Courts. Barring such circumstances, there should be no reason for delaying the DPCs for want of proper preparation on the part of the Department, as is clearly the situation in this case. The DPCs had been delayed for such reasons as the non-availability of ACRs or issuance of integrity certificate. These factors are not beyond the control of the concerned authorities. These are the result of sheer lethargy and inaction. The employees should not be made to suffer for the negligence of the authorities. It is an established principle that even if the DPC has not been held on time, it should consider selection of panels year wise, whenever it meets later on. A similar matter came up before the Honourable Supreme Court in Union of India and Others V. N R Bannerjee and others , (1997) 9 SCC 287. It was held thus:
3. On this factual matrix, it is contended for the appellants that the crucial date for the DPC meeting for selection should be April or May 1995 for selection of candidates to fill up the vacancies of the year 1994-95. The ACRs recorded of all the candidates falling within the zone of consideration and approved by the Government, as on 31-3-1994, are required to be looked into and merits adjudged. The Tribunal, therefore, was not right in directing the Government to ignore the ACRs for the year 1994 and consideration of the candidates eligible by then up to March, 1993. The DPC was to be constituted as on 1-4-1994. Resultantly, the directions were given in paragraphs 25 and 28 for consequential action. Shri Altaf Ahmed, learned Additional Solicitor General, contends that the view of the Tribunal is not correct in law. As per the procedure, preparation of the panel of candidates for consideration by the DPC to fill up the clear vacancies as on April 1994 is necessary. ACRs are prepared on the basis of the performance during financial year which would be October 1 of the year. In this case, the ACRs of the incumbents are written on the financial year basis. It was approved by the Government in 31-3-1995. Therefore, the DPC could not have got approved ACRs before that date, namely, as held by the Tribunal on 19-3-1993. The direction, therefore, that the DPC in its proceedings should take into consideration ACRs of all the eligible candidates as on April, 1993 is incorrect. Though, prima facie, we are impressed with the arguments of Shri Altaf Ahmed, on deeper probe and on going through the procedure laid by the Ministry of Personnel and Training, we find no force in the contention. Preparation of the action plan for consideration by the DPC of the respective claims of the officers within the zone and thereafter for setting in motion the preparation of panel on year-wise basis, is elaborately mentioned. In case of their failure to do so, what further procedure is required to be followed is also indicated in the rules. It thereby manifests the intention of the rule-maker that the appellant-Government should estimate the anticipated vacancies, regular vacancies and also vacancies arising thereafter due to various contingencies and it should also get the ACRs prepared and approved. It is also made clear that the DPC should sit on regular basis to consider the cases of the eligible candidates within the zone of consideration. The object is clear that the Government should keep the panel ready in advance so that the vacancies arising soon thereafter may be filled up from amongst the approved candidates whose names appear in the panel. In that behalf, it is seen that in the guidelines issued by the Government in Part I of clause (49) dealing with Functions and Composition of Departmental Promotion Committee etc. necessary guidelines have been enumerated. It envisages that a post is filled up by promotion where the recruitment rules so provide. In making promotions, it should be ensured that suitability of the candidates for promotion is considered in an objective and impartial manner. In other words, the consideration of the candidate is not clouded by any other extraneous considerations like caste, creed, colour, sect, religion or region. In consideration of claims, merit alone should enter into objective and impartial assessments. The object appears to be that the ACRs be written by competent officer and approved by superior officer objectively and impartially without being influenced by any extraneous and irrelevant consideration, to augment efficiency in public service and to improve competence. For the purpose of selection, the Department Promotion Committee should be formed in each Ministry/Department/Office, whenever an occasion arises, for promotions/confirmations etc. The DPCs so constituted shall judge the suitability of officers for :
(a) promotions to selection as well as non-selection posts;
(b) confirmation in their respective grades/posts;
(c) assessment of the work and conduct of probationers for the purpose of determining their suitability for retention in service or their discharge from it or extending their probation; and
(d) consideration of cases of government servants for crossing the Efficiency Bar.
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5. Part II of the guidelines relates to the frequency of meeting of the DPC. Para 3.1 indicates that the DPCs should be convened at regular annual intervals to draw panels which could be utilised for making promotions against the vacancies occurring during the course of a year. In other words, the life of the panel is one year. For this 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 ACRs, integrity certificates, seniority list etc. for placing before the DPC.
6. DPCs should be convened every year, if necessary, on a fixed date, i.e. 1st of April or May. In the middle of the para, by way of amendment brought on 13-5-1995, it postulates that very often action for holding DPC meeting is initiated after the vacancy has arisen. This results in undue delay in filling up of vacancies and causes dissatisfaction among those who are eligible for promotion. It may be indicated that regular meeting of DPC should be held every year for each category of posts so that approved select panel is available in advance for making promotions against vacancies arising every year. Under para 3.2 the requirement of convening annual meetings of the DPC 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 DPCs 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 DPCs for consideration. This requirement can be dispensed with only after a certificate is issued by the appointing authority that there are no vacancies to be filled by promotion, or that no officers are due for confirmation, during the year in question.
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9. It would, thus, be seen that the authorities are required to anticipate in advance the vacancies for promotion on regular basis including long-term deputation posts and additional posts created and then to take the action plan in finalising the ACRs preparation of the select list and place necessary material before the DPC for consideration of the candidates within the zone of consideration, as are found eligible for the relevant year/years.
10. The DPC in the present case was directed to consider the cases of all the eligible candidates within the zone of consideration so that there will not be any heart-burning among the eligible persons whose claims have been withheld for consideration for promotion to the higher post. In Syed Khalid Rizvi v. Union of India the mandatory duty of the preparation of the select list of the officers for promotion to the All India Services has been indicated in para 35 of the judgment at p. 605 thus :
"We, therefore, hold that preparation of the select list every year is mandatory. It would subserve the object of the Act and the rules and afford an equal opportunity to the promotee officers to reach higher echelons of the service. The dereliction of the statutory duty must satisfactorily be accounted for by the State Government concerned and this Court takes serious note of wanton infraction."
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1. Considered from that perspective, the question arises whether the view taken by the Tribunal is justified in law ? It is true that filling up of the posts are for clear or anticipated vacancies arising in the year. It is settled law that mere inclusion of one's name in the list does not confer any right on him/her to appointment. It is not incumbent that all posts may be filled up. But the authority must act reasonably, fairly and in public interest and omission thereof should not be arbitrary. In Shankarasan Dash v. Union of India the Constitution Bench had held that inclusion of the name of a candidate in a merit list does not confer any right to be selected unless the relevant recruitment rules so indicate. The State is under no legal duty to fill up all or any of the vacancies even though the State acts in arbitrary manner. In Babita Prasad v. State of Bihar it was held that mere inclusion of one's name in the panel does not confer on him/her any indefeasible right to appointment. It was further held that the purpose of making panel was to finalise the list of eligible candidates for appointment. The preparation of the panel should be to the extent of the notified or anticipated vacancies. Unduly wrong panel should not be operated. In Union Territory of Chandigarh v. Dilbagh Singh it was held that the mere fact that a candidate's name finds a place in the select list as a selected candidate for appointment to a post, does not confer on him/her an indefeasible right to be appointed in such post in the absence of any specific rule entitling him to such appointment. In State of Bihar v. Secretariat Assistant Successful Examinees Union 1986 it was held that a person who is selected and empanelled does not on account of empanelment alone acquire any indefeasible right to appointment. Empanelment is, at the best, a condition of eligibility for the purpose of appointment and that by itself does not amount to selection or creation of a vested right to appointment unless relevant rules state to the contrary. However, in the light of the above principles and in the light of the clear rules extracted hereinbefore, it is seen that the exercise of preparation of the panel is undertaken well in advance to fill up the clear vacancies or anticipated vacancies. The preparation and finalisation of the yearly panel, unless duly certified by the appointing authority that no vacancy would arise or no suitable candidate was available, is a mandatory requirement. If the annual panel could not be prepared for any justifiable reason, yearwise panel of all the eligible candidates within the zone of consideration for filling up the vacancies each year should be prepared and appointment made in accordance therewith. In Nagar Mahapalika v. Vinod Kumar Srivastava this Court had pointed out with respect to the prescription of the limitation of one year of the waiting list thus :
"The reason underlying the limitation of the period of list for one year is obviously to ensure that other qualified persons are not deprived of their chances of applying for the post in the succeeding year and being selected for appointment."
In OA number 1715/1995, which was decided on 14.10.1999, a similar issue regarding delay in holding the meeting of the screening committee for promotion under the Flexible Complementing Scheme came up before the Tribunal. The Tribunal, inter alia, held thus:
"But once the Board met and considered the case of the applicants who were found eligible during 1990 and if they were found fit for promotion as on that date there cannot be any good reason for not granting the promotion retrospectively from the said date. The valid or invalid administrative reasons or administrative lethargy should not jeopardise the valuable right of the employees with regard to their promotion." (emphasis added) The respondents approached the Delhi High Court in CWP number 2456/2000, which was decided on 19.07.2000 by dismissing the writ petition in limine. When the matter was carried to the Honourable Supreme Court in Civil Appeal numbers 4973-4974/2001, it was dismissed by observing that:
"Having heard the learned counsel for the appellants, we see no reason to interfere with the well merited finding of the High Court. The appeal is being devoid of merit are accordingly dismissed."
In WP ( c) number 67880/2005, Government of NCT of Delhi and others V. Shri I S Sharma and others the judgement of this Tribunal in OA number 562/2001 was challenged, whereby the Government of NCT of Delhi was directed to hold meetings of review DPC for filling up of promotional posts of Assistant Divisional Officer (Fire) in Delhi Fire Service by taking into consideration year wise vacancies instead of clubbing them together. The Delhi High Court held thus:
21. There is no doubt that Government is not obliged to fill up all the vacancies available either for promotional posts or those which are to be filled up by the recruitment after advertisement etc. and also that a Government servant has only a right to be considered for promotion and promotion is not a fundamental right. However, it has also been held by the Honble Supreme Court that it does not mean that the State has the licence to act in an arbitrary manner and the decision not to fill up the vacancies has to be taken bona fide for appropriate reasons We are in agreement with the submission of the learned counsel for the petitioners that holding of current duty charge of higher post does not create any enforceable right in favour of the incumbent for regular promotion to that higher post. However, if there is no rational explanation for giving current duty charge of a higher post to some employee and paying him pay of lower post and continuing that arrangement for years, then it cannot be said that that employee is not entitled to be considered for promotion from the date when he was given current duty charge or for payment of salary etc attached to that higher post the Tribunal was justified in directing the Government of NCT of Delhi to convene review DPC for making promotions for the yearwise vacancies as against its earlier decision to make all the promotions from 1.4.2002 by clubbing the vacancies of different years and treating them of the year 1998-99. Further the Honourable Delhi High Court observed thus in paragraph 24:
Another submission of Ms. Ahlawat was that if the impugned direction of the Tribunal is implemented that would tantamount to giving of retrospective promotion which is not permissible. In this regard a reference can be made to petitioners own stand in the writ petition ( at page no. 11 of the paper-book) that there cannot be a promotion retrospective except in cases where a review DPC is held. Thus, in the present case it cannot be said that if any employee would get promotion pursuant to the direction of the Tribunal from an anterior date that would tantamount to giving him retrospective promotion because the Tribunal has found that the clubbing of all the vacancies of different years and treating them as the vacancies of one year was not correct and accordingly a direction was issued to the petitioners to hold review DPC and if pursuant to that direction any of the respondents would get promotion from a date prior to 1-4-2002, from which the petitioners themselves have given the promotion to them, it will not be a case of giving retrospective promotion. In such view of the matter, the Applicant should have been considered for regular promotion to the post of Inspector of Accounts in 1999-2000, when the DPC did not meet for unexplained reasons. The later DPC should have considered him for promotion for 1999-2000, when the Applicant was in the Department and had not gone on deputation. We also find it inexplicable that having been promoted in 2003 and having accepted the offer of appointment, he should have been posted, on return from his deputation, not as Inspector of Accounts, but to the lower post of Senior Administrative Officer. The argument that the Applicant's letter of acceptance was conditional and because of that he lost his eligibility for promotion is erroneous. There was nothing in the letter of the Respondents to show that he would be barred for promotion in case he did not come back to the Department immediately. Moreover, he was not debarred, as is clear from the information given by the Respondents under the RTI Act, 2005, which has already been referred to above. This shows that the attitude of the Respondents has been throughout unreasonable as far as the promotion of the Applicant has been concerned. Similarly, in case of the promotion for the post of Deputy Director Administration also, no reasons explaining that the delay was because of reasons beyond the control of the Respondents have been advanced. The Applicant was eligible for promotion to the post of Deputy Director Administration in the year 2001. However, as he was on deputation from 2001 to 2004, he should have been considered for promotion on his return from 2005 onwards. He was indeed promoted in the year 2005 on ad hoc basis. It would show that there was a vacancy available, against which he could have been promoted. From the records it is clear that it was sheer inertia because of which the meeting of the DPC could not be convened. It would be most unreasonable in such circumstances to promote the Applicant from 27.05.2008, instead of from 18.07.2005, when he was promoted on ad hoc basis.
8. In view of this the OA is allowed. The Respondents are directed to convene a meeting of the review DPC to consider the Applicant for promotion to the post of Inspector of Accounts in the year 1999-2000. If he is found 'fit' for promotion by the DPC, he would be notionally promoted from retrospective effect from 1999-2000. Similarly, the Respondents would convene a meeting of the review DPC for the post of Deputy Director Administration for considering the Applicant for promotion from the year 2005 and promote him, if the DPC considers him 'fit' for promotion. The aforesaid action will be taken by the Respondents within three months from the receipt of a certified copy of this order. There will be no orders as to costs.
( L.K.Joshi ) ( V.K.Bali ) Vice Chairman (A) Chairman sk