Central Administrative Tribunal - Delhi
Deep Chand Sharma(Aged-58 Years) vs Union Of India on 12 November, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A.No.1709/2012 Order reserved on :03.09.2013 Order pronounced on: 12.11.2013 Honble Shri G George Paracken, Member (J) Honble Shri Shekhar Agarwal, Member(A) 1. Deep Chand Sharma(aged-58 years) Assistant Director BPRD, M/o Home Affairs Block II, CGO Complex Lodhi Road, New Delhi R/o 168-D, DDA Flats Satyam Enclave Jhilmil Colony, Delhi-10095 2. Anil H. Ramteke (aged-45 years) Assistant Director Central Statistical Organisation Ministry of Statistics & PI 9th Floor, Jeevan Prakash Building K.G. Marg, New Delhi R/o Gali No.1014/Type-IV, WIT, NG-G Faridabad (Haryana) 121001 3. Hari Das (aged-55 years Assistant Director Ministry of Labour & Employment Sharam Shakti Bhawan New Delhi 110011 4. Raj Lal (aged 57 years) s/o Shri Krishan Chand Assistant Director Ministry of Rural Development Krishi Bhawan, New Delhi R/o Flat No.317 Sector-9 Pocket-2 DDA, SFS, Darka, New Delhi 5. Ghisa Ram Janghu (aged-51 years) S/o Shri Chandgi Ram Assistant Director D/o IPP, M/o Comm. & Industry Udyog Bhavan, New Delhi R/o Village-Jat Shahpur, PO-Inchapuri Distt-Gurgoan, Haryana 6. M.S. Dhanda (aged55 years) S/o Shri Balle Singh Assistant Director D/o Agriculture & Co-operation Ministry of Agriculture Krishi Bhavan, New Delhi R/o B-1039, Avantika Rohini, Sector-1, Delhi-110085 7. Raghubir Singh Mehra (aged-54 years) S/o Shri Lichhman Singh Assistant Director Dte. of Economics and Statistics Ministry of Agriculture Krishi Bhavan, New Delhi 110001 R/o N-546, Sector-9 R.K. Puram, New Delhi 110022 8. Ved Prakash (aged-58 years) S/o Shri Bharat Singh Assistant Director D/o Animal Husbandry & Development Ministry of Agriculture Krishi Bhavan, New Delhi R/o 4/789, N.N. Road Bahadurgarh, Dist. Jhajjar (Haryana) 9. Dharam Pal Dugga (aged-56 years) S/o Shri Guran Dass Assistant Director CACP, M/o Agriculture Krishi Bhavan, New Delhi R/o 16/429, Lodhi Colony New Delhi-110003 10. M.Lakhmi Rao (aged-48 years) W/o Shri M.M. Rao Assistant Director D/o Edu. M/o Human Resources Development Shastri Bhawan 11. Brij Mohan (aged-51 years) S/o Shri Ami Lal Assistant Director D/o Animal Husbandry & Development Ministry of Agriculture, DMS Complex West Patel Nagar (Near SBI) New Delhi R/o 169, C-11, Sector-3, Rohini, Delhi R/o 169, C-11, Sector-3, Rohini, Delhi 12. M.P. Diwakar (aged-55 years) S/o Shri Hakeem Singh Assistant Director SSD, CSO, M/o Stat & PI West Block 8, R.K. Puram, New Delhi R/o A-2/445, Gali No.22 Kansal Marg, Harsh Vihar, Delhi-110093 13. Narender Singh S/o Shri Raghuvir Singh Assistant Director Registrar General of India Ministry of Home Affairs West Block, R.K. Puram, New Delhi R/o House No. 2653, Sector-23 Gurgaon(Haryana) 14. Amit Kamal (aged-50 years) S/o Shri N.P. Verma Assistant Director CSO, Ministry of Statistics & PI S.P. Bhavan, Sansad Marg, New Delhi R/o Z-649, Timar Pur, Delhi 110054. 15. K. Hareeswaran (aged-44 years) Assistant Director ZO, NSSO (FOD) M/o Stat. & PI Bangalore 16. N.N. Reji (aged-46 years) Assistant Director SRO, NSSO (FOD) M/o Statistics & PI 35/100(B), Geetha Bhawan Kalathilparambil Lane, Cochin, Kerala 17. Devanand P. Lade (aged-43 years) S/o Shri Pundik Lade Assistant Director FOD, NSSO, M/o Statistics & PI Nagpur-440006 R/o-No.9, Type-IV Block-3 CPWD Colony, Near TV Tower Seminary Hills, Nagpur-440006 18. Suresh Chand Agarwal(aged-45 years) S/o Shri K.L. Agarwal Assistant Director D/o Family Welfare, Ministry of Health & FW Nirman Bhavan, New Delhi R/o SB-302, Block No.14 Transit Flats HUDCO Extn. Andrews Ganj No.49 19. K.C. Meena (aged-51 years) Assistant Director NVBDCP M/o Health & FW 22, Sham Nath Marg, New Delhi R/o F-384, Type-IV, Nanak Pura South Moti Bagh, New Delhi-110021 20. Mahabir Singh (aged-50 years) S/o Shri Shankar Lal Assistant Director NSSO (CPD) Ministry of Stat. & PI S.P. Bhawan, Sansad Marg, New Delhi R/o E-846, Gaur Homes Govind Puram, Ghaziabad, UP 21. Poonam Gupta (aged-48 years) W/o Shri Ajay Kumar Gupta Assistant Director NAD, M/o Statistics & PI S.P. Bhavan, Sansad Marg, New Delhi R/o D-14/111, Sector-8, Rohini, Delhi 22. Rakesh Chandra Negi (aged-51 years) S/o Shri B.S. Negi Assistant Director Ministry of Women & Child Development Jeevan Tara Building, New Delhi R/o 15/263, Lodhi Colony, Lodhi Road New Delhi-110003 23. C.S. Bhatia (aged-49 years) S/o Shri Samparan Singh Bhatia Assistant Director Ministry of Statistics &PI Jeevan Prakash Building, 25, K.G. Marg New Delhi R/o G-418, Gali No-5, G-Block Hari Nagar, Jail Road, New Delhi-110058 24. Alok Nigam (aged-50 years) Assistant Director Ministry of Agriculture, DMS Complex Shadipur Depot, New Delhi, R/o 331 (Type-IV Flat) Laxmi Bai Nagar, New Delhi-23 25. D.S. Mishra (aged-47 years) S/o Shri K.K. Mishra Assistant Director DGMI, Ministry of Defence Sena Bhawan, New Delhi-110011 R/o B-80, Moti Bagh-I, New Delhi-110021 26. R.N. Rathee (aged-53 years) S/o Shri Ram Krishan Rathee Assistant Director SSD, Central Statistical Organisation Ministry of Statistics & PI Sardar Patel Bhavan, Sansad Marg New Delhi, R/o 2/7/728 Subhash Nagar Line Par, Bahadurgarh-124507 27. M.A. Khan (aged-51 years) S/o Shri Abdul Wahid Assistant Director Dte of Vanaspati, Food & Public Distribution Ministry of Consumer Affairs Room No.522, Block No.02, CGO Complex New Delhi, R/o Flat No-5, T Market, Srinivas Puri New Delhi-110065. 28. Rajendra Pathak (aged-50 years) S/o Shri Shikil Chand Assistant Director Ministry of Culture, P&B Division A I-Annexee Building, Janpath, New Delhi. R/o WZ-39A, Adarsh Gali, Palam Village New Delhi-10045. 29. Satyender Kumar (aged-47 years) S/o Shri Bhagwati Prakash Chand Assistant Director Branch ASO/MISO/GS Ministry of Defence Rao Tula Marg, New Delhi R/o 658/9, Krishana Colony Gurgaon-122001 30. Pramod Kumar (aged-48 years) S/o Shri Shriram Assistant Director NAD, CSO, M/o Statistics & PI SP Bhavan, Sansad Marg, New Delhi R/o D-51/VG-5, Dilshad Colony, Delhi-110095 31. Ram Swaroop Singh (aged-54 years) Assistant Director M/o Petroleum & Natural Gas Paryavaran Bhavan, CGO Complex New Delhi-110002 32. Tanveer Ahmed Khan (aged-51 years) S/o Shri Chhote Khan Assistant Director Town & Country Planning Oranisation(TCPO) M/o Urban Development, ITO, New Delhi R/o I-33/6, Batla House, Jamia Nagar Okhla, New Delhi-110025 33. O.P. Gupta (ged-51 years) S/o Shri Mahadev Prasad Assistant Director M/o Stat. & PI, Sarvekshan Bhawan Plot No.3, Sector-3, Madhuban Housing Board, Phase-1, Jodhpur(Rajasthan) R/o 91/22, Patel Marg, Mansarovar Jaipur (Rajasthan)-20 34. Velivela Ravi (aged-55 years) S/o Late Shri V.V. Anjanujatu Assistant Director O/o Chief Labour Commissioner Ministry of Labour & Employment Jamnagar House, New Delhi-110011 R/o 0-6, O Block, Second Floor West Patel Nagar, New Delhi-110008 35. Mitra Sen(aged-55 years) Assistant Director Ministry of Human Resources Development Shastri Bhawan, New Delhi R/o Village and PO, Daulat Pur Najafgarh Block, New Delhi-110043 36. Ram Rattan Banga (age-45 years) Assistant Director Ministry of Tourism C-1, Hutments Dalhousie Road, New Delhi R/o I-80, Sarojini Nagar New Delhi-110023 37. B.B.S. Negi (aged-46 years) S/o Late Shri Ishwar Das Negi Assistant Director Labour Bureau Ministry of Labour Chandigarh R/o-1127-C, Sector-46-B, Chandigarh 38. K.C. Rathore (aged-52 years) Assistant Director M/o Steel, Udyog Bhawan Moulana Azad Road, New Delhi R/o 7959-60, Khara Mohalla, Roshnara Road Delhi-110007. .. Applicants (By Advocate: Mrs. Harvinder Oberoi) Versus 1. Union of India Through Secretary Ministry of Statistics and Programme Implementation Sardar Patel Bhawan, Sansad Marg New Delhi-110001. 2. The Secretary Union Public Service Commission Dholpur House, Shahjahan Road New Delhi-110069. 3. Neha Srivastava, Dy. Director, (Batch-2008) M/o Tourism, C-1 Hutments Dalhousie Road, New Delhi-110011. 4. Kumar Sundram, Dy. Director (Batch-2008) NAD, CSO, M/o Statistics & P.I 4th Floor, Sardar Patel Bhawan Sansad Marg, New Delhi-110001. 5. Anil Phulwari, Dy. Director (Batch-2008) TPP PI Wing, M/o Statics & P.I 2nd Floor, Sardar Patel Bhawan Sansad Marg, New Delhi-110001. 6. Shivam Srivastava, Dy. Director (Batch-2009) RO, NSSO (FOD), M/o Statistics & P.I 38/A, Sardar Patel Marg, Civil lines Allahabad-211001. 7. Mahesh Chandra Shukla, Dy. Director (Batch-2009) M/o HRD,Shastri Bhawan New Delhi-110001. 8. Ambica Anand, A.D, (Trainee) (Batch-2010) ESD, CSO, M/o Statistics P.I Jeevan Prakash Building 25-KG Marg, New Delhi-110001. 9. Jadeja Lakhdirsinh M., A.D (Trainee)(Batch-2010) RO, Planning Commission Yojna Bhawan Sansad Marg New Delhi-110001. 10. Sarvadanand Barnwal, A.D (Trainee) (Batch-2011) RO, Planning Commission Yojna Bhawan, Sansad Marg New Delhi-110001. 11. Rohit Maurya, A.D(Trainee), (Batch-2011) Hqrs, NSSO (FOD), M/o Statistics & P.I East Block 6, Levl 6 & 7 R.K. Puram, New Delhi-110066 12. Achennaro, A.D(Trainee), (Batch-2011) DGHS M/o Health & FW Nirman Bhawan, New Delhi-110001. ..Respondents (By Advocate: Dr. Ch. Shamsuddin Khan) O R D E R
Shri G. George Paracken, M(J) The Applicants in this Original Application are Junior Time Scale (JTS for short) Officers of Indian Statistical Service (ISS for short) posted in different Ministries/ Departments of the Government of India. Their grievance is against (i) the Annexure A-2 (colly) orders dated 10.05.2011 and 29.07.2011 by which they have been given a regular promotion to the aforesaid post only from the date of issuance of the order of promotion despite the fact that all of them had been continuing on the said post on ad hoc basis w.e.f. 26.9.2008, 12.5.2009 and 11.6.2009 and (ii) the Annexure A-1 seniority list of JTS Officers dated 9.1.2012 issued in pursuance to the said regular promotion. As regards their aforesaid promotion orders are concerned, they have stated the only reason for delay in their promotion on regular basis was due to the delay in convening the DPC by the UPSC without any valid reason. As regards their position in the seniority list is concerned, they have stated they were promoted to the grade of JTS on the recommendation of the regular DPC held in UPSC against the year-wise vacancies of 2008-09 and 2009-10 but they have been placed enblock below the Direct Recruits of 2011 who are still undergoing their probation.
2. Brief facts of the case are that the Applicants have initially joined as SSS Grade-I which was the feeder post for promotion to JTS in ISS. As per Rule 8 of the ISS Recruitment Rules as amended vide notification dated 21.10.2009 which is reproduced below, SS Grade-I with 5 years regular service are eligible to be promoted to JTS on regular basis:-
(i) 50% of the posts in the Junior Time Scale shall be filled by direct recruitment through an open competition to be held by the Commission in the manner prescribed in Schedule-II.
(ii) 50% of the posts in the Jr. Time Scale shall be filled by selection from amongst officers belonging to the Subordinate Statistical Service in the pay scale of Rs.9300-34800 with grade pay of Rs.4600 in PB-2. The promotion shall be made through selection from amongst those who have completed at least 5 years of service on a regular basis in these posts by the Controlling Authority on the recommendations of the DPC headed by Chairman/Member, UPSC.
3. But the Applicants have been considered for promotion to JTS Grade only after 10-15 years, that too on ad hoc basis even though sufficient number of vacancies were available. The only ground for denying them the promotion from the due date was that the DPC could not be convened as per the Model Calendar prescribed by the OM No.22011/5/86.Estt. (D) dated 10.04.1989 issued by the Department of Personnel & Training (DOP&T for short) inter-alia provide that the DPCs should be convened at regular intervals (by laying down a time-schedule for this purpose) to draw panels which could be utilised for making promotions against the vacancies occurring during the course of a year. The DOP&T reiterated the aforesaid position in their subsequent OM No.22011/9/98-Estt.(D) dated 8.9.1998 wherein a time schedule for convening DPCs was prescribed with the objective of ensuring that the panel is prepared and utilized as and when the vacancies arise during the course of the vacancy year. The aforesaid instructions have again been reiterated by the DOP&T vide their OM No.22011/1/2011-Estt.(D) dated 11.3.2011 and OM No. 22011/3/2011-EsttD) dated 24.3.2011. However, disregarding the aforesaid instructions, the Applicants were promoted only on ad hoc basis w.e.f. 26.9.2008, 12.5.2009 and 11.6.2009. Later, the UPSC convened the regular DPC in the year 2011 and recommended them to be promoted on regular basis against the vacancies of 2008-09 and 2009-10 which were available on crucial dates of Ist January, 2008 and Ist January, 2009 of the respective recruitment years but the Respondents, without applying the aforesaid procedure prescribed by the DOP&T, issued the impugned orders for regular promotion with immediate effect.
4. Thereafter, the Respondents on 11.08.2011 circulated the draft seniority list of JTS placing the Applicants en-bloc below the Direct Recruitment of 2011. The Applicants have made representations to the Respondents against the aforesaid seniority list and requested them to fix their seniority with DRs in 1:1 ratio in accordance with the Recruitment Rules as they have been admittedly promoted against the vacancy of 2008-09 and 2009-10.
5. The Applicants have also showed a statement indicating the date of ad hoc promotion, regular promotion, vacancy year and their position in the seniority list which is as under:-
Sl. No. Applicants Name Dt. Of Adhoc Promotion Dt. Of Regular Promotion Vacancy Year Sl.No. in the Seniority List 1 Sh. Deepchand Sharma 26.09.08 10.5.11 2008-09 85 2 Sh. Hari Das Do do do 83 3 Sh. A.H. Ramteke Do do do 84 4 Sh. Rajlal Do do do 82 5 Sh. Ghisa Ram Jhanghu Do do do 86 6 Sh. M.S. Dhanda Do do do 87 7 Sh. R.S. Mehra Do do do 88 8 Sh. Ved Prakash Do 01.08.11 2009-10 90 9 Sh. D.P. Dugga Do do do 91 10 Ms. M. Lakshmi Rao Do do do 94 11 Sh. Brij Mohan Do do do 96 12 Sh. M.P. Diwakar Do do do 97 13 Sh. Narender Singh 12.05.09 do do 98 14 Sh. Amit Kamal do do do 99 15 Hareeswaran K do do do 100 16 N.N. Reji 11.06.09 do do 101 17 Sh. Deveanand Lade Do do do 102 18 Dr. S.C. Agarwal do do do 108 19 K.C. Meena do do do 109 20 Sh. Mahavir Singh do do do 110 21 Ms. Poonam Gupta do do do 111 22 Sh. R.C. Negi do do do 112 23 Sh. C.S. Bhatia do do do 113 24 Sh. Alok Nigam do do do 114 25 Sh. D.S.Mishra do do do 117 26 Sh. R.N. Rathee do do do 118 27 Sh. M.A. Khan do do do 119 28 Sh. Rajender Pathak do do do 120 29 Sh. Satender Kumar do do do 121 30 Sh. Pramod Kumar do do do 122 31 Sh. Ram Swaroop Singh do do do 123 32 Sh. T.A. Khan do do do 124 33 Sh. O.P. Gupta do do do 125 34 Sh. V. Ravi do do do 126 35 Sh. Mitar Sain do do do 127 36 Sh. Ram Ratan Banga do do do 128 37 Sh. B.B.S. Negi do do do 129 38 Sh. K.C. Rathore do do do 130
6. In the above facts and circumstances of the case, the Applicants have filed this OA seeking the following reliefs:-
(i) Modify the order dated 10.05.2011 and 29.07.2011 (Annexure A-2 colly), to the extent that Applicants are eligible to be promoted on regular basis from the crucial date of the vacancy year/date of vacancies against which they have been regularly promoted.
(ii) Quash and set aside the impugned seniority list dated 09.01.2012 directing the respondents to furnish a fresh seniority list in accordance with law, i.e., to furnish a proper seniority list as per the guiding principle as laid down by DOP&T and various directions of the Honble Courts.
(iii) Call for the entire records of the DPC relating to the Applicants held in the year 2011.
(iv) Grant all consequential benefits to the Applicant, if any due under the statutory rules and law.
(v) Issue any such and further order/directions the Honble Tribunal deems fit and proper in the facts and circumstances of the case and
(vi) Allow exemplary costs of the Application.
7. The learned counsel for the Applicants Ms. Harvinder Oberoi in support of the aforesaid submission and the reliefs relied upon the judgment of the Apex Court in Rudra Kumar Sain and Others Vs. Union of India and Others AIR 2000 SC 2808. The relevant part of the said judgment reads as under:-
In the Service Jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such appointment cannot be held to be "stop-gap or fortuitous or purely ad hoc". In his view of the matter, the reasoning and basis on which, the appointment of the promotees in the Delhi Higher Judicial Service in the case in hand was held by the High Court to be 'fortuitous/ad hoc/stop-gap' are wholly erroneous and, therefore, exclusion of those appointees to have their continuous length of service for seniority is erroneous.
8. She has also relied upon by the judgment of the Honble High Court of Delhi in W.P. ( C) 5549/2007 Dr. Sahadeva Singh Vs. Union of India. The relevant part of the said judgment reads as under:-
Had the respondents adhered to the time schedule laid down in the Model Calendar, the petitioner would have been considered for promotion, for the vacancy year, 2005 sometime in the year 2004 and since he has been found fit for promotion, had the DPC been held in the year 2004, he would have been granted promotion w.e.f. 01.01.2005 which was the crucial date to determine the eligibility for the vacancy year 2005. For the reason stated hereinabove writ petition is allowed by directing the respondents to treat the petitioner promoted as Dy. Commissioner (Crops) w.e.f. 01.01.2005.
9. Further, she has relied upon the judgment passed by the Principal Bench of this Tribunal in the case of Y.C. Sharma Vs. Union of India - OA No.627/2003. The relevant part of the said judgment reads as under:-
We direct respondent to recalculate the vacancies year wise forming year wise panel having regard to Rule 1961 and the law on the subject. In the event the Applicants as per the eligibility subject to rules are found fit shall be considered for promotion and in that event they would be given appointment against the vacancies of the year to which they are entitled to with all consequential benefits.
10. She has also relied upon the judgment of the Apex Court in the case of Direct Recruit Class-II Engineering Officers Association & Others Vs. State of Maharashtra and Others 1990 (2) SCC 715. The relevant part of the said judgment reads as under:-
Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.
11. She has also relied upon the order of the co-ordinate Bench of this Tribunal in OA No.280/2008 and connected cases K.C. Chauhan Vs. Sujeet S. Priyadarshi decided on 07.03.2012. The relevant part of the said order reads as under:-
15. In terms of Rule 209(B) of the Indian Railway Establishment Code, Volume-I, appointments to posts in the Junior Scale are to be made by selection on merit from amongst Group `B officers with not less than 3 years of non fortuitous service in the grade. The applicant had completed three years service in the year 1992 and had become eligible to be inducted into Group `A Junior Scale of IRSE from the year 1992. The respondents were to fill up 66 vacancies pertaining to the year 2002-03 by promotion to Group `A Junior Scale from Group `B.
16. We may, at the outset, briefly advert to the instructions of the Government of India with regard to the constitution and functioning of DPCs. The various instructions on this subject have been updated and consolidated in the form of Guidelines on Departmental Promotion Committee and have been circulated vide DoPTs OM No.22011/5/86-Estt.(D), dated 10.04.1989 as amended by OM No.22011/5/91-Estt. (D), dated 27.03.1997. These instructions interalia provide for timely convening of DPCs and prescribe that that DPC should meet at regular annual intervals to draw up the panels to be utilized for the promotions over a year, action should be initiated well in advance without waiting till a vacancy occurs.
Convening of DPC meeting can be dispensed with only after a certificate is issued by the Appointing Authority that there are no vacancies to be filled that year.
17. The main focus and emphasis in all the instructions issued on this subject is that Ministries/Departments should take action to fill up posts in time so as to ensure that there is no delay and that the DPC panel should be available in advance for vacancies arising over a year. This was emphasized even at the level of the Prime Minister as would be seen from the DoPTs OM No.23036/3/77-Estb.(D) dated 7.10.1977 (Annexure P2), the relevant portion of which is extracted below: The Prime Minister has noted that in a number of cases appointments are made adhoc either because Recruitment Rules have not been finalized or there has been delay in the filling up of the posts in a regular manner. The Prime Minister has, therefore, desired that Ministries/Departments should take action to fill up the posts in good time before vacancies actually occur in order to avoid adhoc appointment. In case where there is unjustifiable delay, responsibility for the delay should be assigned and those responsible should be suitably dealt with it.
18. Towards this end, in 1998 the DoPT also issued a Model Calendar for DPCs and related matters vide OM No.22011/9/98-Estt.(D), dated 8.09.1998 read with OM of even number dated 13.10.1998. The relevant portions of the said OMs are extracted below: G.I., Dept of Per. & Trg., O.M. No.22011/9/98-Estt.(D), dated the 8th September, 1998 read with O.M. of even number, dated the 13th October, 1998.
XXX XXX XXX Model Calendar for DPCs and related matters
3.1 Keeping the aforesaid objective in view, it has been considered imperative to provide for a time-schedule, for convening DPCs not only in time but in sufficient advance also so as to utilize the prepared panel as and when the vacancies arise during the course of the vacancy year. For practical reasons, it is also considered desirable to have separate timeschedules for cases requiring approval of the Appointments Committee of the Cabinet and cases which do not require such approval. Accordingly, in order to complete all required action, including the approval of the Competent Authority, well in time (before the commencement of the panel or vacancy year), the administrative action for convening DPCs, in the cases requiring approval of the ACC (ACC cases), could, as such, be initiated at least eight and a half months before the commencement of the vacancy year and, similarly, DPCs in such cases could be held at least four months before the commencement of the vacancy year. This means that there would be a clear period of the first three and a half months of the year immediately preceding the vacancy/panel year available for completion of the ACRs, etc., followed by another four and a half months time for holding of DPCs. The next one month could be devoted to the post-DPC follow-up administrative action by the Administrative Ministry/Department. The final three months period prior to the commencement of the vacancy year could be left for approval of the Competent Authority (the ACC).
3.2 In relation to the cases which do not require approval of the ACC (non-ACC cases), the aforesaid time-schedule could follow a different pattern in regard to various activities as discussed above. This is considered desirable to give sufficient time to the UPSC for holding DPCs in such cases. Accordingly, the administrative action for convening DPCs in such cases could be initiated at least eight months before the commencement of the vacancy year and, similarly, DPCs could be held at least two months before the commencement of the vacancy year. This means that there would clearly be the first four months of the year immediately preceding the vacancy/panel year available for completion of ACRs, etc., followed by another six months time for holding of DPCs. The final two months could, as such, be devoted to the post-DPC follow-up administrative action, including approval of the Competent Authority. The aforesaid time-schedule, both in `ACC and `non-ACC cases, may be sufficient by any reckoning. Thus, the Model Calendar of events for ACC/non-ACC cases may follow the following illustrative pattern and the DPCs may ordinarily be held accordingly.
(Emphasis supplied) For the sake of convenience, the suggested Model Calendar for DPCs pertaining to the Non-ACC Cases, [for the vacancy year 2000-2001 and 2000 in respect of the Financial Year-based and Calendar Year-based respectively], which is applicable to the case in this OA, is reproduced below:
SUGGESTED MODEL CALENDAR FOR DPCs Events 1 Financial Year-based 2 Calender Year-based 3 Non-ACC Cases [Other grades/posts (with/without association of the UPSC)] (A) Completion of ACRs/Integrity Certificates/Vigilance Clearance/Seniority List/Penalty and vacancy Position., etc and forwarding DPC proposal to the UPSC.
(B) Last date for sending complete proposals along with relevant Recruitment/Service Rules to the UPSC [Efforts should be made to send the proposal to the UPSC as soon as possible without waiting for the last date).
(C) DPC to be held (D) On receipt of DPC minutes from the UPSC, post-DPC follow-up action (including approval of the Competent Authority) by the Administrative Ministry /Department.
(E) Last date for getting ready the approved select panel by the Administrative Ministry/Department April July, 1999 July 31, 1999 August, 1999 January, 2000 February-March, 2000 March 31, 2000 January-April, 1999 April 30, 1999 May-October, 1999 November-December, 1999 December 31, 1999
19. In fact, Government went to the extent of prescribing that any delay should be treated as a very serious lapse and, therefore, another OM No.22011/9/98-Estt. (D) dated 14.12.2000 was issued by the DoPT, prescribing that in the event of non-adherence to the time-frame, responsibility for the lapse be fixed. The relevant portion of the said OM is extracted below: G.I., Dept of Per. & Trg., O.M. No.22011/9/98-Estt.(D), dated the 14th December, 2000.
Non-adherence to prescribed time-frame is a serious concern and responsibility for the lapse to be fixed The undersigned is directed to invite reference to the Department of Personnel and Training O.M. of even number, dated September 8, 1998 prescribing a Model Calendar for DPCs in order to ensure that DPCs are convened in advance and approved select panels are prepared well before commencement of the relevant vacancy years. All Ministries/Departments were also requested vide D.O. letter of even number, dated March 29, 2000 of Secretary (Personnel) for strict compliance of the instructions so as to achieve the desired objectives of timely convening of DPCs/preparation of approved select panels within the prescribed time-frame. Despite repeated communications to this effect, some of the Ministries/Departments are yet to implement these instructions. Non-adherence to the prescribed time-frame is resulting in continued delay in convening DPCs. The UPSC has, on several occasions in the past, brought this not-so-satisfactory position to the notice of the Department of Personnel and Training. This is indeed a matter of serious concern for the Government. Hence, all concerned authorities are once again counseled to ensure adherence to the Model Calendar which has been devised as a system-improvement measure. In case of non-adherence to the prescribed time-frame, steps should be taken to fix responsibility for the lapse in this regard.
2. Ministries/Departments are requested to give wide circulation to these instructions to ensure strict adherence to the time-schedule prescribed as per the Model Calendar for DPCs.
20. In the case before us, the vacancies circulated for the exam year 2001, were supposed to be effective from 01.04.2002 on wards but the panel was made available w.e.f. 14.01.2005 only, i.e., after a delay of more than three years. The applicant became eligible for promotion in 2001 and was already working on the post on ad-hoc basis which would show that the vacancies were also available at that time but still the applicant was denied the benefit of his regular induction on account of the administrative delay, which was for a period of more than three years.
21. The counsel for the applicant has provided the following Chart, which indicates the extent of delay year-wise in preparation/conducting of the DPC:
DPC for the vacancy year Should have been sent But information sent to UPSC Returned by UPSC with deficiencies Final proposal received DPC conducted on 2000-2001 Aug., 1999 15.05.2001 15.5.2001 28.2.2002 4-6 March, 02 (with 4-5 days) 2001-2002 Aug., 2000 15.05.2001 15.5.2001 28.2.2002 4-6 March, 02 (with 4-5 days) 2002-2003 Aug., 2001 02.6.2003 03.6.2003 2.11.2004 18-19 Nov., 04 (within 16 days) It is evident from a perusal of the Chart above, that the delay is on the part of the Railway Administration only as the UPSC has taken maximum 16 days only to conduct the DPC.
22. As already mentioned earlier, the respondents have stated in their counter that preparatory work for a DPC in the Railways is a time-consuming process and that some delay in holding the DPC meetings for these bona fide reasons becomes unavoidable. It is also pointed out that promotion of Group `B officers of Zonal Railways to Group `A are regulated in terms of Zonal Railways to Group `A are regulated in terms of the guidelines contained in DOP&Ts OM No.22011/5/86-Estt.(D) dated 10.4.1989. The relevant paras of DoPT instructions with regard to the date from which promotions are to be treated as regular, which are of relevance to this OA, are paras 17.10.and 17.11, and are 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.
17.11 In cases where the recommendations for promotion are made 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 Commissions 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 Commissions approval is also required, the date of UPSCs letter communicating its approval or the date of actual 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, whichever is later. Where the meeting 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.
It is submitted that as per para 17.11, in the cases where the commissions approval is also required, the date of UPSCs letter communicating its approval or the date of actual promotion of the officer, whichever is later, should be reckoned as the date of regular promotion of the officer, and, therefore, the promotions given effect to in case under reference have correctly been from 14.01.2005.
23. It is also stated that in the past Railway Federations also had highlighted the issue of delay in promotion on account of delay in conducting DPCs. The Federations demand for the grant of promotions with retrospective effect in such cases of delay had been considered and a reference was also made to DOP&T vide Boards OM No.E(GP) 2004/1/23 dated 1.7.2004, requesting it to consider giving promotions with retrospective effect, reckoning the vacancy year as the due date of promotion rather than the date of approval of UPSC. However, DOP&T in reply vide OM No.22012/1/2201-Estt.(D) dated 29.7.2004, maintained its consistent policy, underlined in its OM dated 10.4.1989, stating inter-alia that if the department is unable to hold DPC in time for any bonafide reason, it does not give rise to any vested right for promotion from the date/year of vacancy.
24. The relevant portion of the DoPT OM dated 29.07.2004, referred to above, is reproduced below:
Normally, there should be no delay in holding of DPCs and the system should be so streamlined that the delay, if any, are minimized. In fact, ideally the DPC should be held as per the model calendar prescribed vide DoPT OM dated 8th September, 1998. 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. (Emphasis supplied) We have perused the OM referred to by the respondents and find that both the OMs (that dated 10.4.1989 and the one dated 29.07.2004) would apply to cases in which there are bona fide reasons for delay in holding the relevant DPC meetings the exact words used have been highlighted above.
25. It has also been brought to our notice that the DoPT guidelines also lay down the procedure to be followed where DPCs have not met for a number of years. This is extracted below:
6.4.1 Where for reasons beyond control, the DPC could not be held in an year(s), even though the vacancies arose during that year (or years), the first DPC that meets there after should follow the following procedures.
Determine the actual number of regular vacancies that arose in each of the previous year (s) immediately preceding and the actual number of regular vacancies proposed to be filled in the current year separately.
Consider in respect of each of the years those officers only who would be within the field of choice with reference to the vacancies of each year starting with the earliest year onwards.
Prepare a `Select List by placing the select list of the earlier year above the one for the next year and so on.
XXX XXX XXX XXX XXX XXX
6.4.4. Promotions only prospective- While promotions will be made in the order of the consolidated select list, such promotions will have only prospective effect even in cases where the vacancies relate to earlier year (s).
It is the contention of the respondents that Para 6.4.4 prescribed that promotions will have only prospective effect even in cases where the vacancies relate to earlier year (s). However, in our view, para 6.4.4 is qualified by para 6.4.1 and will have to be read along with it. It would, therefore, apply only in cases where the DPC could not be held for reasons beyond control. The repeated emphasis in various instructions issued by the DoPT is on convening DPCs/preparing of promotion panels in time, and it is not open to the respondents to ignore these instructions and place reliance only on a particular para of the instructions.
26. The crucial question, and in fact the only question, to be decided in this OA is whether the delay on the part of the respondents in convening the relevant DPC was bona fide and for reasons beyond control or just the result of administrative laxity/lethargy and could have been avoided.
27. The respondents submission that a lot of time is consumed in preparatory work for convening the DPCs in the Railways is much too general and unsustainable in the light of the detailed instructions issued by the DoPT to take sufficient advance action to ensure that the DPC proposals/panels for promotion are ready in time as per the time Schedule/Model Calendar prescribed. Further, if we were to accept such a general statement, it would tantamount to our accepting that DPCs in the Railways can never be convened in time. The inordinate delay of as long a period as three years would need to be explained by specific and detailed reasons. We gave the respondents full opportunity during the course of the arguments to come up with satisfactory reasons to establish that the delay was bona fide and for reasons beyond control and, therefore, unavoidable but apart from their general submission that the Railways has Departments/Offices located at various places of the country, which results in considerable time being taken in collection of inputs for DPCs, such as ACRs and other details of eligible persons, etc., they were not able to come up with any other valid reasons for the delay.
XXX XXX XXX
31. Therefore, we have no hesitation in holding that the present case will not fall in the category mentioned in para 6.4.1 above, i.e., where for reasons beyond control, the DPC could not be held and, therefore, para 6.4.4. would not be applicable. The case, therefore, must be categorized as a case of unexplained delay attributable to administrative laxity/lapses. In fact, although this may not be the case here, such delays can also be deliberate and can be resorted to, to deprive an individual or a group/class of individuals, the benefit of promotion which would accrue to them in normal course had their cases been dealt with promptly. Such a position cannot be allowed to continue or go unnoticed.
32. The delay in this case has caused material prejudice to the applicant(s) which would be of a permanent and continuing nature as it would affect him (them) at every stage of his (their) career (s), through loss of seniority, delay in further promotions and also monetary loss through out service and perhaps even after retirement (as a result of the drawal of lower pensionary benefits). As this delay has occurred for absolutely no fault on their part, there is considerable justification for considering positively the request of the applicants to antedate their promotion/induction to Group `A Junior Scale of IRSE from the date when the vacancies actually arose in 2002-2003 instead of from 14.01.2005.
33. The respondents have pointed out that if such directions are given for grant of promotion to the applicants to Group `A from a notional date, i.e., the first day of the vacancy year i.e. 1.04.02 and if along with it, the benefit of antedating of seniority by 5 years is also retained, then it would amount to grant of seniority in Group `A from 1.04.1997. This would lead to their placement in the integrated seniority list below the junior-most direct recruit IRSE officer of 1994 Engineering Services Examination Batch (earliest date of joining in the batch was 02.01.96). We, however, do not find this to be a justifiable reason not to set right the adverse consequences that have accrued to the applicants for no fault of theirs.
34. We also find that we must allow this on the basis of the Judgement of the Honble Apex Court in P.N.Premachandran v. The State of Kerala and Ors., [Civil Appeal No.4100/1998, decided on 6.11.2003], reported in (2004) 1 SCC 245 and the decision of a Co-ordinate Bench of this Tribunal in OA No.2364/2008 (M.A.Khan v. Union of India & Anr.) decided on 3.11.2009, which are briefly discussed below.
35. The Honble Apex Court in P.N.Premachandran (supra), referred to above, held that employees cannot be made to suffer on the basis of the administrative lapses as a result of which DPC was not conducted in due time. It has further been laid down that the promotion in case of late holding of DPC shall relate back to the date on which the vacancy actually arose in such cases. The relevant portion of the said judgement is extracted below:7. It is not in dispute that the posts were to be filled up by promotion. We fail to understand how the appellant, keeping in view the facts and circumstances of this case, could question the retrospective promotion granted to the private respondents herein. It is not disputed that in view of the administrative lapse, the Departmental Promotion Committee did not hold a sitting from 1964 to 1980. The respondents cannot suffer owing to such administrative lapse on the part of the State of Kerala for no fault on their part. It is also not disputed that in ordinary course they were entitled to be promoted to the post of Assistant Directors, in the event, a Departmental Promotion Committee had been constituted in due time. In that, view of the matter, it must be held that the State of Kerala took a conscious decision to the effect that those who have been acting in a higher post for a long time although on a temporary basis, but were qualified at the time when they were so promoted and found to be eligible by the Departmental Promotion Committee at a later date, should be promoted with retrospective effect.
Although the respondents have stated the case of P.N.Premachandran v. State of Kerala & Ors., AIR 2004 SC 255 is not a binding precedent in as much as not only it has considered the various judgements refered to supra but also it was rendered in the facts of that case, we do not agree as the direction of the Honble Apex Court, though related and issued with reference to the facts of the case, was that persons cannot suffer owing to administrative lapses on the part of the State for no fault on their part.
36. In the case decided recently (on 3.11.2009) by a Coordinate Bench of this Tribunal in the OA 2364/2008, referred to above, the applicant belonged to Group `A of the Indian Supply Service and had been promoted w.e.f. 14.06.2007 as Director in the Junior Administrative Grade Service. The vacancy in this Grade became available on 31.10.2003 and according to the rules, the DPC for this should have been convened by 31.03.2003, but was delayed on the ground that litigation with regard to seniority was pending in different fora. The Tribunal did not find this to be a justified reason for not convening the DPC(s) regularly for year-wise vacancies (as there was no stay) and observed that the applicant had become entitled for consideration for promotion to the post of Director from the year 2003 whereas he had been promoted only in the year 2007, and accordingly directed as follows:
7. We allow this application, directing the respondents to consider promotion of the applicant from the year 2003 by constituting a review DPC, if required. Let this exercise be done as expeditiously as possible and preferably within a period of three months from today. There shall, however, be no orders as to costs. In the case in this OA also, there was no valid reason to have delayed the DPC and the delay was entirely due to the respondents for no fault on the part of the applicants, and similar directions, therefore, need to be issued.
37. The respondents in their counter reply have sought support from several Judgements/orders that are listed in para 11 above. However, in view of the Apex Court decision in P.M.Premachandran (supra), decided on 6.11.2003. We do not find it necessary to discuss any of the cases cited which were decided before 6.11.2003. We, however, proceed to discuss below the applicability (to the case in the present OA) of the judgements viz. Uttaranchal Forest Rangers Ass. (Direct Recruit) and Othes v. State of U.P. and Others,, (2006) 10 SCC 346, decided on 25.09.2006 and State of Uttaranchal and Another v. Dinesh Kumar Sharma, (2007) 1 SCC 683, decided on 04.12.2006. In Uttaranchal Forest Rangers Association (Direct Recruit) & Ors v. State of U.P. and Others (supra) promotion was given to the respondents from the post of Dy. Forest Ranger to the post of Forest Ranger in 1991 from the date of taking charge although there were no vacancies in the promotion quota. On the other hand, appellants direct recruits were substantively appointed to the post of Forest Ranger in 1990 within their quota. As per Rule 8 of U.P.Government Servants Seniority Rules, 1991, seniority has to be given only from the date of substantive appointment It was held that promotion in excess of quota was ad hoc, and seniority cannot be given to promotees on the basis of such ad hoc promotions and that promotees who were appointed in 1991 cannot claim seniority over direct recruits who were substantively appointed at a prior point of time in 1990. It was in these circumstances, that the Honble Apex Court observed that Retrospective seniority cannot be granted to promotees from the date vacancies arose when they had not even been borne on the cadre so as to adversely affect direct recruits who had been appointed validly in the meantime. The case is clearly distinguishable and the decision in that case would not be applicable to the case in this OA.
38. In State of Uttaranchal and Another v. Dinesh Kumar Sharma (supra), a matter of promotion/seniority under the U.P.Agriculture Group `B Service Rules, 1995 was considered in the context of the specific provisions of U.P.Govt. Servants Seniority Rules, 1991 and although the issues considered viz.,
(i) Whether the respondent has the right to claim promotion and seniority from 1995-96 when the vacancy arose or whether his seniority will be reckoned from the date of substantive appointment which is in the year 1999.
(ii) Whether the High Court was justified in overlooking and ignoring the provisions of the U.P.Government Servants Seniority Rules, 1991 and grant a relief in favour of the respondents may appear to be similar to those in the present OA, the case is clearly distinguishable as the judgement given was on the basis of the specific provisions of the U.P.Govt. Rules of 1995 and 1991. The relevant paras of the Judgement are extracted below:
35. Coming to the question of whether the High Court was justified in overlooking and ignoring the provisions of the U.P. Government Servants Seniority Rules, 1991 and grant a relief in favour of the respondents, it will be helpful to reproduce the High Court's order:
"From the perusal of the aforesaid order, it is clear that the authority has not applied its mind on the facts of the case as stated by the petitioner, in the representation, and has rejected the representation on the ground that since the appointment letter was issued to the petitioner on 19.11.1999, therefore he is entitled to his seniority from that date. Even if the recruitment year is changed the order of appointment cannot be made with retrospective effect. The authority has failed to appreciate that if the fact of vacancy being accrued in the recruitment year 1995-96 i.e. on 1st May, 1996 and second vacancy on 1st June 1996 had come to the knowledge of the Commission the Commission could have given the promotion to the petitioner w.e.f. these dates, as the petitioner was entitled for the same and the Commission has found him suitable, which is evident from the promotion order dated 19.11.1999. Therefore, this could have consequently affected the consequential benefits available to the petitioner had his promotion being made w.e.f. the date of promotion of falling of vacancy. Therefore, the order dated 1st October, 2002 suffers from non application of mind and is hereby liable to be ignored.
The fact that the vacancy had fallen on 1st May, 1996 and 1st June, 1996 in the recruitment year 1995-96 is not disputed by the respondents. The petitioner cannot be made to suffer on account of delay in recommendation by the Director of Agriculture for promotion of the petitioner. The petitioner cannot be held responsible and cannot be made to suffer as such became entitled to be considered for promotion on 1st May, 1996. Therefore, the government is directed to re-consider the matter and send it back to the Commissioner for appropriate orders suitable in the facts and circumstances of the case. Subject to the above, the writ petition is disposed off finally.
36. This observation of the High Court in our view is erroneous. The High Court while observing that, "the appellants rejected the representation of the respondents on the ground that since the appointment letter was issued to the respondent on 19.11.1999, he is entitled to his seniority from that date. The authority has failed to appreciate that if the fact of vacancy being accrued in the recruitment year 1995-96 i.e. on 1st May, 1996 and second vacancy on 1st June 1996 had come to the knowledge of the Commission the Commission could have given the promotion to the petitioner w.e.f. these dates, as the petitioner was entitled to the same and the Commission has found him suitable, which is evident from the promotion order dated 19.11.1999", has committed an error in understanding and appreciating Rules 17 and 21 of the Uttar Pradesh Agriculture Group "B" Service Rules, 1995 and Rule 8 of the U.P. Government Servants Seniority Rules, 1991, which categorically state that the date of 'substantive appointment' will be the date that shall be taken for determining promotion, seniority and other benefits.
The two judgements of the Apex Court are, therefore, distinguishable and not applicable to the case in the present OA and would not help the respondents. As already mentioned (in para 25), the DoPT instructions relating to promotions having only prospective effect even in cases where vacancies relate to earlier years have a qualification, viz., that the concerned DPC could not be held for reasons beyond control and, as already discussed, there were no reasons beyond control in the present case.
39. We, therefore, hold that the delay in this case does not stand sufficiently explained and we have no hesitation in reiterating that the delay in this case is attributable entirely to administrative inefficiency/laxity in sending of complete particulars/proposals/ACRs. If such inefficiency/laxity in sending proper and complete proposals/particulars are accepted as constituting bonafide and sufficient cause for delaying DPCs, then it would be possible for any group of people in the administration to deny promotions to persons who are legally entitled/eligible to be considered for the same, by deliberately delaying matters by sending incomplete particulars and records in piecemeal. Such a situation cannot obviously be allowed, as it adversely impacts the right of an individual to be considered for promotion when he is eligible and when vacancies are available.
40. As regards the submission of the official respondents that no fundamental right or any statutory right or other enforceable right of the applicants has been infringed, we do not find the same to be acceptable. In a catena of judgements, the Honble Supreme Court has laid down that if the rules are silent in any particular aspect, the Government will be within its powers to fill up the gaps and supplement the rules and issue instructions which are not inconsistent with the Rules already framed. The rules and such instructions are required to be followed together and it is not permissible to act contrary to instructions so issued. In this connection, we may usefully quote the following relevant extracts from the Judgement of the Honble Apex Court in Guman Singh v. State of Rajasthan, 1971 (2) SCC 452.
39. Then the question is whether government is competent to issue the said Circular and whether the Circular in any manner affects the discretion and powers of the Committee functioning under the statutory rules. The position is clear, as laid down by this court in Sant Ram Sharma v. State of Rajasthan and Another (supra):
"It is true that the government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed."
40. Having due regard to the principles stated above, we will now examine the scope and contents of the Circular. The Circular contains administrative instructions and it does not profess to lay down anything else. The government has issued those instructions "for the guidance of all selection/promotion committee and appointing authorities mentioned in the Statutory Service Rules. These administrative instructions and the Statutory Service Rules should together be taken as a complete code on the subject".
41. From the above extract it is clear that in the matter of selection or promotion the Committees concerned are enjoined not only to have regard to the statutory rules under which they function, but also to the administrative instructions given in the Circular. This makes it very clear that it is not open to the Committee concerned to ignore the instructions contained in the Circular or to act contrary to the directions contained therein.
41. We, therefore, repel the submission of the respondents counsel that the action of the respondents in issuance of the promotion order from the date of receipt of communication from the select list of the DPC held by UPSC is just, bonafide and in accordance with the policy guidelines of the Government which provides that promotions will have only prospective effect even in cases where the vacancies relate to earlier year (s). We have already observed earlier that this is applicable only where the delay in holding the DPC is justified and attributable to reasons beyond control.
42. We now come to the last submission of the counsel for the respondents relating to the law of binding precedent. We not only accept this but strongly emphasize that all subordinate Courts in the country are bound by the orders of the Honble Apex Court, and that this Tribunal is bound by the orders of the High Court and also the orders of Coordinate Benches of this Tribunal in identical issues.
43. Most of the Judgements, relied upon by the respondents, have already been considered hereinbefore and have been found to be not applicable to the special circumstances in this case. The learned counsel for the official respondents heavily relied on the Judgement of the High Court of Delhi in Virender Singh (supra) and stated that the promotions must be from the date of actual promotion and cannot be given retrospective effect.
44. In this connection, we find that the decision of the Honble High Court of Delhi in the case of Vijinder Singh(supra) has already been distinguished by a Coordinate Bench of this Tribunal in OA No.1536/2011 and only after considering the orders of the Court were the directions in that case OA issued. For facility of ready reference, we reproduce below the relevant portions of the order of the Coordinate Bench in the said OA:
7.2 The respondents have relied upon the DOPT instructions vide the Office Memorandum dated 10.4.1989 (Para 6.4.4) to contend that even where promotions are made by way of consolidated select list for vacancies relating to earlier years, such promotions will have only prospective effect. They have further reinforced their stand by adverting to the Apex Courts decision in K.K. Vadheras case (supra) as reiterated by the Delhi High Court in Rajendra Roys case (supra) and Vijendra Singhs case (supra). In brief, this is to the effect that unless there exists a rule or a residual power, enabling retrospective promotions, the same cannot be claimed. 7.3 There can be no two views about the generally settled principle of law that as a thumb rule, the benefits of promotions can only be granted from the date such promotions take place rather than from the date of occurrence of vacancies. However, even in the judgments relied upon by the respondents, there is an implicit recognition of a situation under which deemed retrospective promotions may be justified. This has been stated to be an enabling `specific or a residual rule. However, an equally settled proposition of law is that where the statute or the rules are silent, the executive instructions legitimately fill in the gaps. It is here that the elaborate instructions issued by the DOPT about accurate assessment of vacancies i.e. both clear and anticipated, as well as convening of DPCs on schedule and at regular intervals well in advance, assume importance. As a logical corollary, a delay in holding the DPCs and preparing panels on schedule can only be acceptable in judicial review, if it is shown to be for bona fide and unavoidable reasons.
7.4 It is trite that a judgment must be read in its entirety. Reliance upon certain observations made in course of the judgment isolated from the factual context, may lead to unintended conclusions. Evoking the doctrine of circumstantial flexibility, we find that both the judgments of the Honble Delhi High Court being relied upon by the respondents, are distinguishable from the present set of OAs in critical facts. In Rajendra Roys case (supra), the basic issue being considered by the Honble High Court was whether the respondents, who had superannuated before consideration of the case by the DPC, could be granted promotion on a notional basis from a retrospective date. Even in the batch petitions in Vijendra Singhs case (supra), the contentious issue was the grant of pay from the date of retrospective promotion, which was rejected by the Honble High Court. The other aspect regarding reckoning the period as qualifying service for determination of eligibility for further promotions had not been adjudicated at all.
7.5 On the other hand, of the judicial pronouncements placed reliance on behalf of the applicants, the decision of the Jabalpur Bench of CAT in NR Banerjees case (supra) and further the judgment of the Apex Court in the same matter, are found to be particularly relevant in the present OAs. This is for the reason that even at the Tribunals level, the DOPT consolidated instructions on the subject of holding of DPC and related matters as per the OM 10.4.1989, had come in for consideration. The operational directions, which inter alia included grant of promotion from retrospective effect, were after being seized with the provisions of this OM.
As elaborated above, the Honble Apex Court, while upholding the decision of the Tribunal in NR Banerjees case, had specifically dwelt on this aspect, and after considering the law from varied aspects, had held the preparation and finalization of the yearly panels as a mandatory requirement.
We also find the decision of the coordinate Bench of the Tribunal in M.A. Khans case (in which one of us, the Chairman was also a member) as relevant. Not only the DOPT instructions vide the OM 10.4.1989 were considered but also the protestations of delay on the part of the respondents due to administrative reasons were not accepted at face value; instead they were subjected to a stringent judicial scrutiny. In the factual gamut of the case, directions for considering the promotion of the applicant retrospectively had been issued.
8. To conclude, after considering the pros and cons, the balance tilts in favour of the applicants. This is a case where despite availability of vacancies and of the eligible candidates, the DPCs were not held in time, and in fact, were delayed for a long period of four years. The reasons given by the respondents for not convening the DPCs are not found to be justified when put under judicial scrutiny. If as per their own averment, the DPCs could not be held despite the dates being fixed repeatedly as the necessary procedural requisites like the ACRs, vigilance clearance, etc. could not be completed; such factors cannot be stated to be as `not attributable to the respondents or `beyond their control. Such unjustified delay is neither warranted as per the repeated instructions issued by the DOPT, nor has met judicial approval in various pronouncements by the Tribunal, the High Courts and the Apex Court (some of which have been cited in this case). The matter seems to be clinched by the notional promotions from an earlier date already having been given to two among the applicants.
Resultantly, the OA is disposed with directions to the respondents to consider the grant of regular promotions to the remaining 9 applicants also (other than the applicants No.1 and 3 of the OA No. 1563/2011) from the date of their respective ad hoc promotions or from the date of occurrence of the regular vacancy by constituting a review DPC, if required. On grant of promotions, the entitlement would be to the reliefs as granted vide the respondents Office Order dated 1.9.2011. Our directions are to be complied within a period of three months from the date of receipt of a copy of this order. There shall be no order as to costs.
45. In view of the above discussion and particularly in the context of the Apex Court Judgement in P.N.Premachandran (supra) and the order of the Coordinate Bench of this Tribunal in OA No.2364/2008 and OA No.1536/2011 (supra), the OA is partly allowed. The impugned notification dated 18.05.2006 is quashed and set aside. The respondents are directed to consider the request of the applicants herein by convening a review DPC to consider the promotion/induction of the applicants from the date when the vacancies arose in 2002-2003, and thereafter to pass appropriate follow up orders with regard to their seniority in Group `A. Action as above may be taken within a period of three months from the date of receipt of a copy of this order.
46. In the same terms, the other MA 1650/2011 and OA No.2661/2010 are also disposed of. No costs.
12. The respondents in their reply have submitted that as per the ISS Rules notified on 14.9.2005, 40% of the posts in the Junior Time Scale shall be filled by selection from amongst officers belonging to the subordinate Statistical Service in the pay scale of Rs.6500-200-10500/- and those who have completed at least 5 years of service on a regular basis in those posts including service rendered, if any, in the non-functional scale of Rs.7450-225-11500/- by the Controlling Authority, on the recommendations of Departmental Promotion Committee headed by Chairman/Member, Union Public Service Commission, provided that, if any junior who has completed 5 years eligibility service is being considered for selection for appointment against those vacancies, all persons senior to him in that grade would also be considered provided they are not short of the requisite eligibility service by more than half of such eligibility service or two years whichever is less and have successfully completed their probation period on promotion to next higher grade along with their juniors who have already completed such eligibility service. They have also stated that the vacancies up to 2007-08 were filled based on above rule. The recommendation of UPSC for appointment against the vacancy of 2007-08 was received on 6.6.2008 and orders were issued on approval of the appointing authority on 19.6.2008.
13. They have further submitted that, based on recommendation of ISS Board, a proposal for amendment to ISS Rule for enhancement of departmental quota in the ISS recruitment at JTS level from 40% to 50% was taken up with DOPT and on its approval by them, the same was sent to UPSC for their concurrence. Since, such increase would result in additional posts of the promotee quota, i.e. an approximate increase of about 25 posts in promotee quota, the proposal for holding DPC for 2008-09 vacancy was not taken up. However, since the proposed amendment did not materialize during the vacancy period of 2008-09, action was immediately initiated to fill up the vacancies. On completion of requisite process like getting vigilance clearance of all officers, ensuring availability of complete and up-to-date ACRs and also approval of reservation roster by the liaisoning officers etc., proposal was sent to UPSC on 21.10.2009. Subsequently UPSC sought some clarifications and finally DPC was held on 25.4.2011 and promotion order was issued with the approval of the appointing authority on 2.5.2011. Hence, there is no deliberate delay on the part of the cadre to fill the vacant posts of JTS for 2008-09. Meanwhile, the amendment in ISS Rules were also notified and the amended rules came into force w.e.f. 25.10.2009. The said rules provide for the enhancement of departmental quota in the ISS recruitment at JTS level from 40% to 50% of the posts in JTS. The revised Rule 8(1)(a)(ii) in its existing form provides as under:-
50 percent of the posts in the Junior Time Scale shall be filled by selection from amongst officers belonging to the Subordinate Statistical Service in the pay scale of Rs.6500-200-10500 (pre revised). The promotion shall be made by selection from amongst those who have completed at least five years of service on a regular basis in these posts, including service rendered, if any, in the Non-Functional scale of Rs. 7450-225-11500, (pre revised) by the Controlling Authority on the recommendations of Departmental Promotion Committee headed by Chairman/Member, Union Public Service Commission. Provided that if any junior who has completed five years eligibility service is being considered for selection for appointment against these vacancies, all persons senior to him in that grade would also be considered provided they are not short of requisite eligibility service by more than half of such eligibility service or two years, whichever is less, and have successfully completed their probation period on promotion to next higher grade along with their juniors who have already completed such eligibility service.
14. The Respondents have also clarified that, without the said amendment to ISS Rule, most of the applicants in the instant OA would not have been promoted on regular basis against the 2009-10 vacancies. Further, the respondent Ministry has considered the cases of promotee officers on sympathetic ground and those additional posts available for promotee on amendment to Rule occurred on 25.10.2009 have been included in 2009-10 vacancy instead of considering the same in 2010-11. When they were promoted to JTS on ad-hoc basis in 2008, it was made purely on temporary basis against the quota of vacant posts of Direct Recruitment. Thereafter, immediately on notification of the amended ISS Rules, action was started to fill the vacancies of 2009-10. On completion of requisite process like getting vigilance clearance of all officers, ensuring availability of complete and up-to-date ACRs and also approval of reservation roster by the liaisoning officers etc., DPC proposal was sent to UPSC on 8.3.2010. They have also submitted that the last vigilance clearance certificate was received only on 24.02.2010. The UPSC, vide letter dated 22.4.2010, intimated that DOPT vide OM No. 21011/1/2010-Estt.-A dated 13.04.2010 issued instructions to the effect that all below benchmark ACRs grading of officers in the zone of consideration for the relevant period shall be communicated to the officers concerned before holding DPC. As a result of the said instructions, UPSC returned the proposal along with ACR folders. The aforesaid position was communicated to ACR section for immediate necessary action as per the rules and the said Section, vide its note dated 12.7.2010, intimated that the process has been completed as per aforesaid OM of DOP&T dated 13.4.2010. Immediately on receipt of that note, in-fact on the same day (i.e. on 12.7.2010), the proposal was sent to UPSC with a request to hold DPC and by vide DO letter dated 21.10.2010, they were again requested to expedite the process of holding DPC. Thereafter, vide letter dated 2.11.2010, UPSC requested the Respondent-Ministry to submit specific certificate on completion of ACR as per DOPT OM dated 13.4.2010 and also revised seniority list. The clarifications on vigilance clearance status and revised seniority list from SSS Division was received on 15.11.2010. However, the requisite certificate for completion of ACR as per DOPT OM dated 13.4.2010, was received from ACR section only on 23.11.2010. On receipt of those documents including the revised seniority list and integrity certificate etc the same has been sent to UPSC. However, again vide letter dated 10.03.2011, UPSC specifically asked for final decision on below benchmark grading of Sh. A.K. Pandey and Sh. Dharam Dass and also some certificate related to ACRs. The requisite information on vigilance, etc. was received on 17.3.2011 and those related to ACR was received on 1.4.2011. On the same day, UPSC was requested again to hold the DPC at an early date. Subsequently, DPC meeting was held on 12.7.2011 and final order was issued on 29.07.2011 with the approval of the competent authority. Hence, there is no deliberate delay on the part of the cadre to fill the vacant posts of JTS.
15. They have also submitted that submitted that, Rules 9B and 9C of ISS Rule clearly and unambiguously define the date of appointment and its regularization in the service in the following manner. The said rule reads as under:-
9B. Regular Basis defined:-
(1) Where a person is appointed in accordance with the procedure laid down in sub-rule(20 against a regular vacancy, then he shall be deemed to have been appointed to any grade or post on a regular basis.
(2) A person shall be deemed to be appointed in a regular manner, if-
(a) xxxx;
in the case of an officer promoted to any grade under the provisions of rule 8, and in the case of an officer promoted to any post not included in Schedule I, he has been promoted to the said grade or post, as the case may be, on the basis of his inclusion in the Select list prepared for the purpose of making promotion to such grade or post, as the case may be;
Provided that the promotion of an officer otherwise than in the order in which his name is placed in the Select List for promotion shall not be deemed to be an appointment in a regular manner, unless such promotion has been made by the Controlling Authority in the public interest.
9C. Date of appointment:- The date of appointment of a person to any grade or post on a regular basis shall:-
in the case of a direct recruit to any grade or post be deemed to be the date on which he was recommended by the Commission for appointment to such grade or post, as the case may be and in the case of promoted officer to any grade or post be the date on which he was included in the Select List for promotion to that grade or post as the case may be, or the date on which he was appointed to the grade or post as the case may be, whichever may be later.
16. However, in the present case the Applicants were promoted to JTS on ad-hoc basis against the unfilled vacancies of Direct Recruit quota in 2008. Further, prior to 2011 they were assessed by the Internal Selection Committee (ISC) and not the Departmental Promotion Committee (DPC). However, ISS Rule 8 and 9 stipulate that for entry into ISS, the suitability of candidates for promotion to JTS is to be assessed by the DPC conducted by UPSC. Therefore, the service spent during ad-hoc promotion based on ISC shall not be treated for the purpose of fixation of seniority because the ad-hoc promotion was made (i) against the Direct Recruit quota and (ii) without assessment by DPC. Therefore, the respondent Ministry has regularized applicants as per the existing statutory rules based on the recommendations of UPSC only. Therefore, the claim of the applicants is baseless and OA is liable to be dismissed.
17. They have also stated that in view of the fact that ad-hoc promotion were made against the Direct Recruit quota, while promoting the applicants to JTS of ISS on ad hoc basis it was made clear that the promotions are being made purely as a temporary measure and as a stopgap arrangement and can be withdrawn/cancelled any time without assigning any reasons. They have also been informed that such ad hoc promotion will not bestow on them any claim for regular appointment and ad hoc service will not be counted for the purpose of seniority in that grade and for eligibility for promotion etc. Further, they have stated that the representations of similarly placed officers of ISS, who have been promoted to ad-hoc basis on earlier occasions, have been received regarding counting such service for fixation of seniority, etc. and their case was referred to DOPT for their advice along with the existing ISS rule position. The DOPT on detailed examination of their case advised as under:-
3. In its various judgments, the Honble Supreme Court has observed that regularization is not itself a mode of recruitment and any act in the exercise of executive power of the Government cannot override rules framed under Article 309 of the Constitution. The judgment in the C.A.No.3512/2010 and SLP(Civil) No. 8570/2009 are case specific and cannot be applied in all cases.
4. In view of above, the appointment of ISS officers to the JTS in ISS on ad-hoc basis cannot be regularized. They have also submitted that, DOPT, vide OM No.28036/1/2001-Estt.(D) dated 23.7.2001 clarified that, ad-hoc service shall not be counted for fixing seniority in the promoted grade. Para 3 of the said OM which is relevant in this case is reproduced as under:
In this regard, it is stated that issue of regularization of ad-hoc employees has been considered in several judgments of the Honble Supreme Court. In the case of R.N. Nanjundappa Vs. Thimmaiah & Ors. (AIR 1972 SC 1767), the Supreme Court observed that regularization is not itself a mode of recruitment and any act in the exercise of executive power of the Government can not override rules framed under Article 309 of the Constitution. In the case of State of Orissa Vs. Sukati Mahapatra (AIR 1993 SC 1650), the Supreme Court has observed that assuming that their having served for long years is a valid reason for regularization, that without any thing more, will not meet the requirement of the action being in public interest and what has been done under the impugned orders is to regularize the illegal entry into service as if the Rules were not in existence. In another case of K.C. Joshi Vs. Union of India (AIR 1991 SC 284), the Supreme Court observed that the ad-hoc appointees can not be put on a higher pedestal over the candidates who stood the test of merit and became successful in a competitive recruitment and secured ranking according to the merit in the approved list of candidates. In the case of State of Haryana and others Vs Piara Singh and others (1992 SC 2130), the Supreme Court observed that direction to regularize ad-hoc appointments, work charged employees would only result in encouraging of unhealthy practice of back door entry what can not be done directly can not be allowed to be done in such indirect manner. In the case of R. M.A. Haque Vs Union of India (1993 2 SCS 213), the Supreme Court held that the recruitment rules made under Article 309 of the Constitution have to be followed strictly and not in breach. If a disregard of the rules and the bypassing of the Public Service Commission are permitted, it will open a back-door for illegal recruitment without limit. In the case of Dr. Arundhati A. Pargaonkar and another Vs State of Maharashtra (AIR 1995 SC 962), the Apex Court has held that a continuous service by itself do not given rise to the claim of regularization.
18. They have also stated that the date of entry into a particular service was considered to be the safest rule to follow while determining the inter se seniority between one office or the other or between one group of officers and the other recruited from the different sources as held by the Honble Supreme Court in the case of Direct Recruit Class II Engineering Officers Assn. v. State of Maharashtra (1990) 2 SCR 900. The same position has been reiterated in the case of State of West Bengal v. Aghore Nath Dey (1993) 3 SCC 371. Therefore, it is well settled that seniority of an officer in service is determined with reference to the date of his entry in the service which is consistent with the provisions contained in Articles 14 and 16 of the Constitution. In this regard they have referred to DOP&T OM No. 20011/1/2006-Estt. (D) dated 3.3.2008 which clarified the misconception regarding the date of availability for fixing seniority, etc. and issued fresh instructions regarding certain amendment to consolidated instructions on seniority contained in DOPT OM No.22011/7/1986-Estt.(D) dated 3.7.1986. In the OM dated 3.3.2008, it is stated that, the year of availability, both in case of direct recruit and promotees for the purpose of rotation and fixation of seniority, shall be the actual year of appointment after declaration of results/selection and completion of pre-appointment formalities as prescribed. DOPT vide para 3 of the OM dated 3.3.2008 clarified as follows:-
It is further clarified that when appointment against unfilled vacancies are made in subsequent year or years either by direct recruitment or by promotion, the Persons so appointed shall not get seniority of any earlier year (viz. year of Vacancy/panel or year in which recruitment process is initiated) but should get the seniority of the year in which they are appointed on substantive basis. The year of availability will be the vacancy year in which a candidate of the particular batch of selected direct recruits or an officer of the particular batch of promotees joins the post/service. They have further submitted that DOP&T vide Para 16 of its OM dated 11.11.2010 has clarified that the seniority of direct recruits and promotees is de-linked from the vacancy and year of vacancy. Further, vide para 15 of the OM they clarified that, the year of availability is a vacancy year in which a candidate of a particular batch of selected direct recruitment or an officer of a particular batch of promotee joins the post or service. Therefore, the seniority of all the officers DR and promotee have been fixed in ISS w.e.f. the date of their joining post which is in accordance with DOPT instructions. They have also denied the allegation of the applicants that the seniority of DR of 2010 and 2011 have been fixed above them. According to them, the 2010 batch of DR has joined service only in December 2011 and their names have not figured in the seniority list dated 1.9.2012 (seniority as on 1.8.2011). As far as 2011 DRs are concerned, UPSC announced the results only in July 2012 and the candidates are yet to join the service. Therefore, the applicants are deliberately trying to mislead this Tribunal whereas, the normal rule is that seniority goes by the date of appointment. In other words, the person who enters first shall rank senior unless there is some rule providing otherwise but such rule must be consistent with provisions of Arts. 14 and 16. In this regard, they have relied upon the judgment of the Apex Court in Bhey Ram Sharma v. Haryana State Electricity Board AIR 1993 SC 2573 wherein it has been observed as under:-
This Court has examined the question of fixation of seniority inter se between officers appointed from different sources i.e. by promotion and by process of direct recruitment. It is almost settled that while determining the inter se seniority amongst officer recruited from different sources or between officers appointed by the same process at different times, the date of entering in the service is relevant. A person who enters in the service first shall rank senior unless there is some Rule providing otherwise which can be held to be consistent with Arts. 14 and 16 of the Constitution. Reference in this connection may be made to the cases of N. K. Chauhan v. State of Gujarat, AIR 1977 SC 251, Paramjit Singh v. Ram Rakha Mal, AIR 1983 SC 314 A. Janardhana v. Union of India, AIR 1983 SC 769, A.N. Pathak v. to the Govt. Ministry of Defence, AIR 1987 SC 716. The same view was approved by a Constitution Bench of this Court in the case of Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra. (1990) 2 SCC-715. Therefore, the claim of the applicants is not legally tenable and OA is liable to be dismissed.
19. As regards the judgment in Mohd. Israils v. State of West Bengal (Civil Appeal No.879 of 1998 decided on 7.1.2002), they have submitted that the respondents therein were working as Junior Employment Officers in the State of West Bengal. They were promoted as Employment Officers purely on ad-hoc basis and subject to approval of Public Service Commission. The High Court held that they were entitled to count their period of ad-hoc service towards seniority. The Supreme Court did not approve it but held that since approval of the Public Service Commission was essential for the post of Employment Officer, the ad-hoc service rendered before such approval cannot be counted for seniority. Therefore, the claim of the applicants in the instant OA was not legally tenable.
20. They have also stated that the reliefs sought by the Applicants in the instant OA amount to re fixation of their seniority along with other officers whose seniority was fixed along with them. If their contentions are to be considered, the seniority of all the officers recruited since 2007 (about 100 in numbers) will be adversely affected. However, the applicants have not made those officers to be affected by their relief, as parties. They have also mentioned that in the Civil Appeal No.5984 of 1998 decided by Supreme Court on 20.11.2003, it has been observed that The procedural law as well as the substantive law both mandates that in the absence of a necessary party, the order passed is a nullity and does not have a binding effect.
21. In rejoinder, the Applicants have submitted that the Respondents have nowhere stated that when the recommendation of ISS Board was sent or received or when the proposal for amendment to ISS rule for enhancement of departmental quota in the ISS requirement at JTS level from 40% to 50% was taken up with the DOPT and on which date the approval of DOPT was received or when the approval of DPOT was sent to UPSC for their concurrence. In this context they have submitted that in its reply to the Senior Statistical Officers Association letter No. SSOA/101/2007 dated. 1.5.2007, ISS section of the cadre controlling authority, vide its letter No. 11011/3/2005-ISS dated 28.5.2007, mentioned as follows;
The vacancies for 40% promotee quota up to the year 31.3.2006 have been filed up. For the vacancies for the year 2006-07, 26 officers have already been already been promoted on adhoc basis against these vacancies. A proposal to UPSC to convene the DPC for filling up the 2006-07 vacancies is being readied. The proposal for amending the intake ratio for the entry into JTS to 50:50 is under consideration in consultation with the UPSC. Efforts are being made to expedite the same.
Therefore, as per the respondent the proposal for holding DPC for 2008-09 vacancy was not taken up since the proposed amendment did not materialize during the vacancy period 2008-09 is baseless and false since the proposal for holding DPC for the year 2006-07 was under process at the time when the revision of intake ratio for entry into JTS to 50:50 was also under consideration at that time and during this (Amendment) period, DPC was held for the Years 2006-07 and 2007-08, as the present OA is for Vacancy Year 2008-09 and 2009-10. They have further stated that the pendency of the proposal with UPSC to enhance the quota from 40% to 50% was never a hurdle to hold the DPC for the vacancy years 2006-07 and vacancy year 2007-08, then how could it become a hurdle for the vacancy years 2008-09 and 2009-10. As such, all the explanations given by the respondents are wrong and misleading and they are liable to be rejected forthwith.
22. They have also specifically denied that there was no deliberate delay on the part of the cadre to fill the vacant post of JTS for 2008-2009 and submitted that the respondents have failed to adhere to the Model Calendar suggested in the OM dated 8.9.1998 and 13.10.1998 issued by the DOPT which has resulted in delay in holding of the DPC for the promotion to the post of JTS. According to them, it is well settled in law that the respondents should have taken the steps for the promotion of the JTS well in advance, therefore, later the respondent cannot take the advantage of its own wrongs.
23. They have further submitted that had there been year wise assessment by the DPC, the applicants could have been promoted w.e.f. the crucial date of vacancy in order of their seniority. Therefore, the applicants should have been promoted from the date when they become eligible for the promotion to the grade of JTS or from the year 2008-09 when the vacancy arose. Moreover, the amendment in the Recruitment Rules came into force w.e.f. 25.10.2009, as such, there was no impediment to hold the DPC for the year 2008-09 which had to be held in advance as per the model calendar and so also for the year 2009-10. However, the respondents have failed to do so, which has resulted into filing the case by the Applicants before this Tribunal. Further, they have submitted that the Respondents themselves have admitted that additional post available for promotion on amendment to ISS rule on 25/10/2009 have been included in the vacancy of 2009-10 instead of considering them in the year 2010-11. According to them, the negative mentality of the respondent towards promotee officers because it is against the DOPT guidelines and also against the settled law of land as 25/10/2009 falls in the vacancy year 2009-10 not in the year 2010-11. They have also stated that they have the reasons to believe that since the cadre is managed by officers who are Direct Recruits, the seniority was fudged to simply keep the DRs above the Promotees for one reason or the other so as to give undue favor to his fellow Direct Recruit officers at the cost of Promotee Officers. Further, according to them, it is the regular practice of the ISS Cadre to not follow the model calendar prescribed by DOPT and not to send the DPC proposal to UPSC in time and to wait for the joining of DRs first so that they become senior to Promotee Officers by years. The same is crystal clear by the table below for some years:-
Vacancy year 2010 2009 2008 2007 2006 Year of DPC as per DOPT Model Calendar 2009 2008 2007 2006 2005 DPC actually convened in the Year (by Cadre) 2012 2011 2011 2008 2007
24. Further, if the respondent had any sympathy with Promotee Officers, they should have given them the seniority of the year 2008 & 2009 of the vacancy year for which DPC was held in UPSC. Recently, their intention (to favour the DRs and step motherly treatment towards Promotee Officers ) of the ISS Section of CCA has come into light whereby the respondent have given benefit of seniority to their fellow DRs, even on Ad-hoc promotion (without fulfilling the required qualifying service of 5 years) from JTS to STS, whereas the same benefit when demanded by the applicants ( after fulfilling the required qualifying service for promotion) herein has been denied to them in the seniority list of JTS by not counting the adhoc period which is under challenge in this OA. The double standards of the respondents have come to the forefront herein as for the DRs the seniority is fixed from the date of adhoc promotion and for DPs the seniority is fixed from the date of regular DPC even when the vacancy is of earlier years and the regular DPC was delayed deliberately. In this regard, they have pointed out to the following part of the Office Order No. 12016/5(STS)/2012-ISS dated 28-12-2012 depicting the dual standards of the respondents:-
Officers from Sl No. 1 to 20 ( i.e upto Sh Anil Kumar are presently holding STS post on Ad-hoc basis and Officers at Sl. No. 21 to 28 are promoted to STS on Regular Basis Officers from Sl. No. 29 (Sh Shivam Shrivastav) to 34 are promoted on Adho-hoc Basis.. The interse seniority of the officers from Sl No. 1 to 34 mentioned above will be in the same order as shown there in.
25. From the above mentioned Office Order it is clear that the names of all (Sl No. 1 to 34) persons who has been promoted from JTS to STS on Ad-hoc/Regular Basis, appears from Seniority No.5 to 40 in the Seniority List. As per Column No.2 of the Seniority list, from Sl. No. 5 to 25 and 34 to 40 are DRs of the Year 2008 & 2009, who (Sl. No. 1 to 20 & Sl .No. 34 to 40 ) in the above promotion Order are presently holding STS post on Ad-hoc Basis/promoted on Ad-hoc Basis. Again as per Seniority list from Sl No. 21 to 28 are Promotee of the year 2008 ( actually who were given the seniority of 2008 but promoted against the vacancy year 2007, as the present OA pertain to Vacancy Year 2008 & 2009) whose names appears from Sl.No. 21 to 28 in the above promotion Order are promoted to STS on Regular Basis. From above, it is seen that in the promotion Order, from Sl. No. 21 to 28 ( Promote Officers), who were promoted in 2008 against vacancy year 2007 had completed qualifying service of 5 years (i.e 2007 to 2012) in 2012 for promotion from JTS to STS, as per ISS Rule (amended in 2005), and have been promoted to STS on Regular Basis. Rest from Sl No. 1 to 20 are presently working as STS on Ad-hoc Basis and Sl. No.29 to 34 are promoted on ad-hoc basis. It also emerges from the above that ISS Section of CCA has given undue favour to their fellow DRs by keeping Ad-hoc DRs (Sl No.1-20) of JTS above the Regular Promotees (Sl. No. 21-28) JTS Officers and further assigning the benefit of seniority to ad-hoc DRs (Sl No. 29-34) for giving them undue benefit of seniority which is against DOPT ruling as well as the settled law of land and their own submission that benefit of Seniority is not provided in Ad-hoc promotions.
26. We have heard the learned counsel for the applicant Mrs. Harvinder Oberoi and learned counsel for the respondents Dr. Ch. Shamsuddin Khan. In spite of notice issued to the private respondents, they have chosen not to contest the case. Admittedly, the promotion to the posts in JTS was governed by the ISS Rules notified on 14.09.2005. It was in vogue till it was amended w.e.f. 25.10.2009. Again, admittedly, the vacancies up to 2007-08 were filled up based on the unamended rules. As the amendment took place only on 25.10.2009, the vacancies for the year 2008-09 were to be filled up as per the unamended rules. It was, admittedly not done. It is well settled, as held by the Apex Court in the case of Y.V. Rangaiah and Others Vs. J. Srinivasan Rao and Others, vacancies which have occurred prior to amendment of Recruitment Rules, would be governed by the old Recruitment Rules and not by the new Recruitment Rules. Therefore, DPC for filing up the vacancies of the year 2008-09 is concerned, the crucial date of determining eligibility has fallen on 01.01.2008 and DPC should have been held prior to that date. As regards the vacancies for the year 2009-10, are concerned, the date of determining the eligibility has fallen on 01.01.2009 and the DPC should have been held prior to that date. However, during the same vacancy year on 25.11.2009, the amended Recruitment Rules came into existence and additional vacancies must have arisen for which a supplementary DPC could have held in the same year. Thereafter, while determining vacancies for the year 2010-11 the date of determining the eligibility should have been reckoned as 01.01.2010 and the number of vacancies determined should, of course, be in accordance with the amended Recruitment Rules. In fact, the DPC under the Chairmanship of the Member of UPSC for the vacancy years 2008-09 was held on 25.04.2011 and recommended a panel/extended panel for promotion to the JTS of ISI consisting of the following persons:-
PANEL FOR THE YEAR 2008-09 (No. of vacancies: Gen.06+SC.01+ ST.01 Sl.No. Name)S/Shri/Ms.
1. Raj Lal
2. Hari Dass (SC) RAUV
3. S.N. Ahirwar (SC) RAUV
4. Anil H. Ramteke (SC) RAUV
5. Deep Chand Sharma
6. Ghisa Ram Janghu
7. R.S. Mehtra (SC) RARV
8. Virender Singh (ST) RARV Extended Panel
1. M.S. Dhanda To be promoted in lieu of the officer at S.No.3 in the regular panel who has retired in the panel year 2008-09.
RARV: Recommended Against Reserved Vacancy RAUV: Recommended Against Unreserved Vacancy.
Similarly, the DPC again met on 12.07.2011 and recommended another panel/extended panel consisting of the following:-
PANEL FOR THE YEAR 2009-10 Sl.No. Name(S/Shri/Ms)
1. Ved Prakash (SC) RAUV
2. Dharam Paul Dugga (CS) RAUV
3. P.K. Santosh (SC) RAUV
4. Pradosh Kumar Home
5. M. Lakshmi Rao
6. Mahesh Chand (SC) RAUV
7. Brij Mohan
8. Narender Singh
9. V.K. Jain
10. Amit Kamal
11. M.P. Diwakar (SC) RAUV
12. C. Arokiasamy Chiniyan (SC) RAUV
13. Onkar Wakode (SC) RAUV
14. N. Venkat Rao
15. Hareeswaran K
16. N.N. Reji
17. Devanand P. Lade (SC) RAUV
18. Utpal Bordoloi
19. Jawait Alam Khan
20. K.B. Thesia
21. A.K. Pandey
22. R.B. Nair
23. R.N. Tailor (ST) RAUV
24. Dwijendra Nath Hazong (ST) RAUV
25. Suresh Chand Agrawal
26. K.C. Meena (ST) RAUV
27. Daram Dass (SC) RARV
28. Hari Prasad Sidar (ST) RAUV
29. Habil Barwa (ST) RAUV
30. D.R. Rathia (ST) RAUV
31. Mahavir Singh (SC) RAUV
32. Poonam Gupta
33. Rakesh Chandra Negi
34. C.S. Bhatia
35. Alok Nigam
36. Ved Pal Singh (SC) RAUV
37. P.B. Rangarajan
38. D.S. Mishra
39. R.N. Rathee (SC) RAUV
40. M.A. Khan
41. Promod Kumar (SC) RARV
42. Ram Swaroop Singh RARV
43. Ram Rattan Bagga (SC) RARV
44. B.B.S. Negi (ST) RARV
45. K.C. Rathore (SC) RARV
46. Pramod Chandra (SC) RARV
47. Paramjit Singh (SC) RARV
48. K.L. Katole (ST) RARV Extended Panel Sl.No. Name (S/Shri/Ms.)
1. Rajendra Pathak
2. Satyender Kumar
3. Tanveer Ahmed Khan
4. O.P. Gupta
5. Ravi Velivela
6. Mitra Sain
7. S.K. Soorma
8. Devinder Kumar (The officers included in the Extended Panel may be promoted in lieu of officers at Sl.No.12, 13, 23, 24, 27, 28 & 30 in the Regular Panel and Sl.No.7 in the Extended Panel who have retired in the panel year 2009-10) RAUV: Recommended Against Unreserved Vacancy RARV: Recommended Against Reserved Vacancy.
However, the Respondents have arbitrarily clubbed together all the vacancies of the year 2008-09, 2009-10 and 2010-11. The aforesaid action of the Respondents is absolutely unacceptable in view of the aforesaid judgment in the case of Y.V. Rangiahs case (supra). According to the unamended Recruitment Rules, the departmental quota being 40% of the vacancies, those vacancies should have been assessed and filled up during the vacancy years 2008-09 itself. When the amendment took place w.e.f. 25.10.2009 and the percentage of vacancies under departmental quota has increased from 40 to 50, the benefits thereof would be available only in respect of the vacancies which were arisen after that date during the year 2009-10. Therefore, there are no valid reasons for clubbing the different panels and placing them en bloc below the direct recruitment of the year 2010-11.
27. In the above facts and circumstances of the case, we allow this OA. Accordingly, we direct the Respondents to modify their orders dated 10.05.2011 and 29.07.2011 and to promote the Applicants on regular basis from the crucial date of the vacancy year/date of vacancies against which they have already been appointed on ad hoc basis. Consequently, the seniority list dated 09.01.2012 is quashed and set aside. Respondents shall prepare a fresh seniority list as per the rules and relevant guidelines on the subject.
28. The aforesaid exercise shall be completed within a period of three months from the date of receipt of a copy of this order.
29. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
Rakesh