Punjab-Haryana High Court
Union Territory vs Tarlochan Singh And Others on 5 March, 2014
Author: Hemant Gupta
Bench: Hemant Gupta, Fateh Deep Singh
CWP No. 17079-CAT of 2013 (O&M) [1]
IN THE HIGH COURT OF PUNJAB AND HARAYANA AT
CHANDIGARH
CWP No. 17079-CAT of 2013 (O&M)
Date of Decision: March 05, 2014
Union Territory, Chandigarh Administration and others
.....Petitioners
Versus
Tarlochan Singh and others ....Respondents
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE FATEH DEEP SINGH
Present: Shri Sanjiv Ghai, Advocate, for the petitioners.
Shri Aman Chaudhary, Advocate,
for the respondents.
1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Hemant Gupta, J.
Challenge in the present writ petition is to an order passed by the Central Administration Tribunal, Chandigarh Bench, Chandigarh (for short `the Tribunal'), on 15.3.2012, allowing an Original Application holding that applicant-respondent Nos. 1 to 3 are entitled to the grant of regular promotion with effect from the date the vacancies became available.
Singh Dalbir 2014.03.05 12:09 I attest to the accuracy of this document High Court Chandigarh CWP No. 17079-CAT of 2013 (O&M) [2] Respondent Nos. 1 to 3 (hereinafter referred to as the applicants), were promoted as Executive Engineers (Public Health) on 11.2.2010. However, the claim is for promotion from the day the vacancies became available i.e. on 1.6.2005, 1.9.2005 and 10.6.2006, respectively. It is the said application, which has been allowed by the Tribunal.
Applicant-Tarlochan Singh discharged duties of Executive Engineer (Public Health) on current duty basis from 5.2.2004 till 16.3.2006 and then from 1.5.2008 till 11.7.2008 when he was promoted as Executive Engineer on adhoc basis. Such period was extended from time to time. Applicants, Rajinder Singh and Ashok Kumar Duggal discharged the duties of Executive Engineers (Public Health), on current duty basis with effect from 1.7.2004. Applicant Nos. 2 and 3 were promoted as Executive Engineers (Public Health) on adhoc basis vide order dated 11.1.2008. The applicants filed OA No. 667-CH-2009, claiming directions to the petitioners to consider and finalise their case for promotion from the date the vacancies became available. Such Original Application was withdrawn on 9.12.2010, after the applicants were promoted on 11.2.2010 on regular basis, with liberty to claim promotion to the applicants with effect from the date the vacancies became available.
The learned Tribunal relied upon its earlier orders in similar matters and the order passed by this Court in CWP No. 816-CAT of 2001, dismissed on 4.2.2009 against one of such orders. The Tribunal also noticed that SLP stands dismissed against the order passed by this Court as well. The Tribunal held that the applicants are entitled for promotion from the date the vacancies were available for promotion.
Singh Dalbir 2014.03.05 12:09 I attest to the accuracy of this document High Court Chandigarh CWP No. 17079-CAT of 2013 (O&M) [3] Learned counsel for the petitioners referred to the large number of judgments in support of the argument that a holder of a civil post, has a right for consideration for promotion with effect from the date the employer decides to fill up the posts, but there is no right to claim the promotion from the date the vacancies arise.
On the other hand, learned counsel for the applicants referred to an order dated 21.9.2006 passed by this Court in CWP No. 8260-CAT of 2005 titled as Union Territory of Chandigarh v. Jagjit Singh Gil and another arising out of an order passed by the Tribunal on 30.11.2004. In the said case, the Tribunal has issued direction for consideration of the applicant therein, for regular promotion with effect from the due date or in the alternative with effect from the date, the applicant in the said case was holding the Current Duty Charge. It may be noticed that in the aforesaid case, the holder of the civil post was not even given pay attached to the higher post. It was in the light of the aforesaid discussion, the writ petition filed by the Administration was dismissed. In the said case, it was held by this Court, as under:-
"12. A similar controversy came up before a Division Bench of this Court in Jagar Singh and another v. State of Haryana and others, 2003(1) RSJ 795. The petitioners in that case were the senior most Assistants working in the Office of Deputy Commissioner concerned and were eligible for promotion as per the unamended rules which (rules) came to be amended at a subsequent point of time and the amendment was not indicated to be with retrospective effect. Those officials were given current duty charge of the post of Assistant Superintendents against vacant posts in their own pay scale. A Division Bench of this Court held that the State of Haryana could not have deprived those employees of the pay scale attached to the post of Assistant Superintendent by not making regular promotions when they were eligible therefore and posts for the purpose aforesaid were also Singh Dalbir 2014.03.05 12:09 I attest to the accuracy of this document High Court Chandigarh CWP No. 17079-CAT of 2013 (O&M) [4] available. It was further noticed that those officials had also been performing the job and responsibilities attached to that post. The entitlement of those officials to receive higher pay with effect from the date the current duty charge was given to him was upheld. That judicial pronouncement is fully supportive of the plea raised by the present petitioner."
The reference has also been made to another order passed on 7.11.2003 in CWP No. 17551 of 2003 titled as Union Territory Administration vs. Dilbagh Singh and other, directed against an order passed by the Chandigarh Bench of the Tribunal on 3.7.2003 in OA NO. 379-CH-2002. In the aforesaid case also, the lecturers in the School cadre were manning the posts of the Principals on officiating posts without any break or interruption, but were not being paid the salary of the promotional posts. The Tribunal directed the payment of the salary in the pay scale of the promotional posts and also that the applicants shall be treated for all intent and purposes against the posts of Principals right from the day, when they took over the charge. The Division Bench, while dismissing the writ petition, upheld the order when it observed that a government servant performing the duties of the higher post is entitled to the remuneration of the same post. The said order reads as under:-
"We have heard learned counsel for the petitioner. Mr. Raina has vehemently argued that the applicants had been merely given posting orders. They were not even given officiating promotion on the post of principals. However, a perusal of the order passed by the Central Administrative Tribunal, Chandigarh Bench (for short, `the Tribunal'), shows that the applicants had been manning the posts of Principals right from 19.11.1996 without any break or interruption. It is settled proposition of law that when a Government servant is performing duties of a higher post, he is also entitled to remuneration of the same post. The Singh Dalbir 2014.03.05 12:09 I attest to the accuracy of this document High Court Chandigarh CWP No. 17079-CAT of 2013 (O&M) [5] applicants could not have been denied the benefit of regular scale merely because the regular promotion was released subsequently.
Mr. Raina has thereafter submitted that in accordance with the guidelines issued by the Departmental Promotion Committee, the promotions were to have only prospective effect even in cases where the vacancies relate to earlier years.
We are unable to accept the aforesaid submission. The Tribunal has rightly observed that the aforesaid guidelines would not be applicable as the promotion of the applicants was due from the date when they were put on officiating promotion on the post of Principal.
We find no merit in this writ petition. Dismissed."
Learned counsel for the respondents has also relied upon an order passed by the Hon'ble Supreme Court in Arindam Chattopadhyay and others v. State of West Bengal and others, 2013(4) SCC 152.
We have heard learned counsel for the parties and find that the order passed by the Tribunal holding that the applicants are entitled to be promoted from the day the vacancies arose, is not tenable in the eyes of law. The Hon'ble Supreme Court in Arindan Chattopadhyay's case, was examining the question where the Assistant Child Development Project Officer was discharging the duties against the vacancy of the Child Development Project Officer for about 6 years. The Court directed that there is no legal or other justification in denying the salary and allowance of the post of Child Development Project Officer on the pretext that they have not been promoted in accordance with Rules. The direction was issued to pay the salary and allowances in the pay scale of the post of Child Development Project Officer. After issuing such direction, the State was directed to effect regular promotion within a time frame. Singh Dalbir 2014.03.05 12:09 I attest to the accuracy of this document High Court Chandigarh CWP No. 17079-CAT of 2013 (O&M) [6] The earlier two Division Benches judgments referred to by the learned counsel for the respondents are against the order of the Tribunal directing promotion with effect from the day the vacancies arises. But the order of the High Court is primarily in respect of the payment of the higher salary having worked against such post and the applicants therein having discharged duties of such post.
At this stage, we may mention that reference is also made to a Single Bench judgment in the case of Hem Raj Yadav v. State of Haryana, 2000(4) SCT 458. In said case, the writ petitioner became eligible for promotion on 24.2.1994 and the post was also available on that day, but he was promoted as an Architect on 13.10.1997. The learned Single Judge has directed consideration of the petitioner for promotion from the day, he became eligible for promotion to the post. We find that the ratio in the aforesaid judgment is contrary to the established principles of the law as hereinafter discussed, therefore, does not lay down the correct proposition of law.
A Full Bench of this Court in a judgment reported as Head Constable Sardul Singh v. Inspector General of Police, Punjab and others, AIR 1970 Punjab 481, reiterated the proposition that no civil servant has a right to be promoted to a higher rank and that only right is that he has a right for being considered for the promotion. He can impugn his non-selection either on the ground of mala-fide or based on an irrelevant or extraneous consideration. The Court said to the following effect:-
"13. My brother Sandhawalia, J., has referred to various propositions of law in relation to the fundamental right guaranteed under Article 16 of the Constitution. These propositions are by now well settled by the pronouncements of the highest judicial authority in the land. One such proposition is that no civil servant has the right to be promoted to the higher rank and the only Singh Dalbir 2014.03.05 12:09 I attest to the accuracy of this document High Court Chandigarh CWP No. 17079-CAT of 2013 (O&M) [7] right that he has is the right to be considered for that promotion. If he is considered on merits and is not selected for promotion, he can have no cause of grievance except when he can successfully plead and prove that the selection made was either mala fide or based on irrelevant or extraneous considerations ............"
In State of Haryana v. Subash Chander Marwaha and others, AIR 1973 SC 2216, the Court held to the following effect:-
"8. One fails to see how the existence of vacancies gives a legal right to a candidate to be selected for appointment. The examination is for the purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes later. It is open then to the Government to decide how many appointments shall be made. The mere fact that a candidate's name appears in the list will not entitle him to a mandamus that he be appointed........"
The Hon'ble Supreme Court in the case reported as Union of India and others v. K.K. Vadera and others, AIR 1990 SC 443, held that there is no law or rule under which a promotion is to be effective from the date of creation of a promotional post and that after a post falls vacant for any reason whatsoever a promotion to that post should be from the date the promotion is granted and not from the date when such post falls vacant.
In T.N. Administrative Service Officers Assn. v. Union of India, (2000) 5 SCC 728, it was held as under:-
"The question then arises whether there is any such right in the petitioners to seek such creation of additional posts. It is a well-settled principle in service jurisprudence that even when there is a vacancy, the State is not bound to fill up such vacancy nor is there any corresponding right vested in an eligible employee to demand that such post be filled up. This is because the decision to fill up a vacancy or not vests with the employer who for good reasons, be it administrative, Singh Dalbir 2014.03.05 12:09 I attest to the accuracy of this document High Court Chandigarh CWP No. 17079-CAT of 2013 (O&M) [8] economical or policy, can decide not to fill up such post(s). (See State of Haryana v. Subash Chander Marwaha.) ............"
In State of Uttaranchal v. Dinesh Kumar Sharma, (2007) 1 SCC 683, has held to the following effect:-
"28. It is clear from the above that a person appointed on promotion shall not get seniority of any earlier year but shall get the seniority of the year in which his/her appointment is made. Therefore, in the present fact situation the respondent cannot claim promotion from the date of occurrence of the vacancy which is 1995-96 but can only get promotion and seniority from the time he has been substantively appointed i.e. from 1999. Likewise, the seniority also will be counted against the promotion/appointment in the cadre from the date of issuance of order of substantive appointment in the said cadre i.e. from 19-11-1999.
29. In a recent judgment of this Court in Uttaranchal Forest Rangers' Assn. (Direct Recruit) v. State of U.P.,2006(4) SCT 487 (Dr. Ar. Lakshmanan and Tarun Chatterjee, JJ.), this Court was of the view that seniority has to be decided on the basis of rules in force on the date of appointment, no retrospective promotion or seniority can be granted from a date when an employee has not even been borne in the cadre. Similar view was taken by this Court in Keshav Chandra Joshi v. Union of India, 1992 Suppl.(1) SCC 334.
xx xx xx
34. Another issue that deserves consideration is whether the year in which the vacancy accrues can have any relevance for the purpose of determining the seniority irrespective of the fact when the persons are recruited. Here the respondent's contention is that since the vacancy arose in 1995-96 he should be given promotion and seniority from that year and not from 1999, when his actual appointment letter was issued by the appellant. This cannot be allowed as no retrospective effect can be given to the order of appointment order under the Rules nor is such contention reasonable to normal parlance. This was the Singh Dalbir 2014.03.05 12:09 I attest to the accuracy of this document High Court Chandigarh CWP No. 17079-CAT of 2013 (O&M) [9] view taken by this Court in the case of jagdish Ch. Patnaik & ors v. State of Orissa & Ors., (1998)4 SCC
456."
Similar is the view taken in Nirmal Chandra Sinha v. Union of India, (2008) 14 SCC 29, when it was held to the following effect:-
"7. It has been held in a series of decisions of this Court that a promotion takes effect from the date of being granted and not from the date of occurrence of vacancy or creation of the post vide Union of India v. K.K. Vadera, AIR 1990 SC 442, State of Uttaranchal v. Dinesh Kumar Sharma, (2007)1 SCC 683, K.V. Subba Rao v. Govt. of A.P., (1988)2 SCC 201, Sanjay K. Sinha-II v. State of Bihar, (2004)10 SCC 734."
Similar is the view taken in K. Ramulu (Dr.) v. (Dr.) S. Suryaprakash Rao, (1997) 3 SCC 59; a Division Bench of the Delhi High Court in Union of India v. Vijender Singh & Ors., 2011(176) DLT 247 and Division Bench judgments of this Court reported as Ram Niwas, Junior Engineer, Marketing Board, Faridabad v. The Haryana State Agricultural marketing Board, Panchkula and another 1994(2) SLR 729 and in CWP No.3865 of 2012 titled as Union Territory of Chandigarh and another v. Vin Dosanjh and another decided on 4.3.2013. In Vin Dosanjh's case (supra), the Bench reiterated the well established principles that an official is not entitled to promotion from the date the vacancy arose. It was held as under:-
"4. During the course of hearing, it is fairly conceded by Ms. Lisa Gill, learned counsel for the petitioners on instructions from the departmental official that pursuant to the order under challenge passed by the Tribunal, the first respondent would not get any monetary benefit as she was already officiating as Head of the Department on current duty charge basis w.e.f. 12.12.2005 and was getting the salary of Head of the Department. It is pointed out by learned counsel for respondent No. 1 that she is otherwise senior-most in Singh Dalbir 2014.03.05 12:09 I attest to the accuracy of this document High Court Chandigarh CWP No. 17079-CAT of 2013 (O&M) [10] the Department. If that is so, it is obvious that neither respondent No. 1 would be entitled to any monetary benefit nor she affects anybody's seniority in the department as a result of retrospective promotion from the date of occurrence of the vacancy. In this view of the matter, we do not deem it necessary to interfere with the directions issued by the Tribunal except to the extent that in our considered view, retrospective promotion cannot be claimed as a matter of right unless the Rules permits so or there exists some special or peculiar facts and circumstances for issuing such direction. The writ petition is accordingly disposed of without interfering with the order passed by the learned Tribunal, however, with a clarificatory direction that as and when an applicant seeks retrospective promotion on the basis of the instances referred to above or on the strength of the order under challenge, the learned Tribunal shall not be influenced by its previous orders and shall decide the same keeping in view the binding precedents in accordance with law."(Emphasis Supplied) In view of the various judgments referred to above, we find that a person is not entitled to seek promotion from the day vacancies arises. It is for the employer to initiate the process of promotion and to fill up the posts, keeping in view its requirements.
The employee has no right to claim promotion from a particular date or for a direction that the vacancy in the promotional post should be filled up. However, if the decision of the employer is to fill up the promotional post is actuated by the considerations other than administrative, such action or inaction can be subjected to the judicial review, but there cannot be any direction to grant promotion from the date the vacancy arises. However, in case, an Officer is given Current Duty Charge or promoted on adhoc basis, he shall be entitled to the pay of the promoted post as has been held in Arindam Chattopadhyay's case (supra) and State of Haryana Vs. P.K. Grover (1983) 4 SCC 291.
Singh Dalbir 2014.03.05 12:09 I attest to the accuracy of this document High Court Chandigarh CWP No. 17079-CAT of 2013 (O&M) [11] In view of the consistent well established principles of law as enunciated in the above mentioned judgments, we find that the direction of the Tribunal holding that the applicants are entitled to be promoted from the day the vacancy arose is clearly not sustainable in law. Consequently the present writ petition is allowed and the impugned order dated 15.3.2012 passed by the Tribunal is set aside.
(Hemant Gupta) Judge (Fateh Deep Singh) Judge March 05, 2014 ds Singh Dalbir 2014.03.05 12:09 I attest to the accuracy of this document High Court Chandigarh