Central Administrative Tribunal - Delhi
Sunil Kant Tangri vs Geological Survey Of India on 30 May, 2023
1
OA No.2159/2021
Item No.26
CT-1
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA No.2159/2022
Order reserved on 23.05.2023
Order pronounced on ___.05.2023
Hon'ble Mr. Justice Ranjit Vasantrao More,
Chairman
Hon'ble Mr. Mohd. Jamshed, Member(A)
Sunil Kant Tangri, Aged 62 yeas
S/o Late Sh. Gian Chand Tangri
Deputy Director General(Geology)
(Retd.) Group 'A', Operation
Manipur, Nagaland and Mizoram
Geological Survey of India
Dimapur (Nagaland), Now resident
of House No.1268, Sector 15-B, Chandigarh.
...Applicant
(By: Applicant in person)
Vs
1. Union of India through Secretary to the
Government of India, Ministry of Mines, Shastri
Bhawan, Dr. Rajendra Prashad Road, New Delhi-
110001.
2. Secretary to Government of India, Ministry of
Personnel Public Grievances and Pension,
Department of Personnel and Training, North
Block, New Delhi-110001.
3. Director General, Geological Survey of India, 27
Jawahar Lal Nehru Road, Kolkata-700016.
..Respondents
(By Advocate: Mr. Subhash Gosai)
2
OA No.2159/2021
Item No.26
CT-1
ORDER
Hon'ble Mohd. Jamshed, Member(A) The applicant joined as Geologist on 11.12.1979 in Geological Survey of India. He was subsequently promoted as Senior Geologist on 18.12.1998 and was thereafter given Non Functional Selection Grade (NFSG) w.e.f. 29.10.2010. The next promotion was to the post of Deputy Director General (DDG). After recommendations of the DPC, the applicant was promoted as DDG (Geology) vide order dated 17.06.2015. It is the contention of the applicant that he was to be further promoted as Additional Director General (Geology) or should have been granted Non Functional Upgradation (NFU) in Higher Administrative Grade(HAG) which was denied to him as he superannuated from service on 31.05.2016. The reason given by the respondents for denial of NFU in HAG to the applicant was that he did not complete one year of service in Senior Administrative Grade (SAG) i.e. DDG, in view of his promotion to DDG on 17.06.2015. The applicant submits that there was delay in holding DPC by respondents which resulted in his promotion to the 3 OA No.2159/2021 Item No.26 CT-1 post of DDG not having taken place prior to 01.04.2015. He contends that he should be considered to have been promoted as DDG w.e.f. 01.04.2015, and thus, he becomes eligible for grant of NFU in HAG before his retirement w.e.f. 01.04.2016. He submitted a representation in this regard which was rejected by the respondents vide order dated 19.12.2017 (Annexure A-2). He is further seeking quashing and setting aside of office order dated 21.07.2017 providing conditions for grant of NFU to the officers of Central Geological Service Group 'A' in the grade of Additional Director General (HAG). By filing this OA, the applicant is seeking multiple relief(s) which are as under:-
"i. Quash Order A3004 /A-19011/NFU/2014-15 to2017-18/19-A dated 21.07.2017, passed by Respondent No.3, copy attached as Annexure A- 1, to the extent officers seniors to the applicant have been granted the Non Functional Upgradation (NFU) to Additional Director General (Higher Administrative Grade) w.e.f. 01.04.2015 or 01.04.2016 and juniors w.e.f. 01.04.2017 without Considering claim of the applicant, which was required to be considered with effect from due date i.e. 01.04.201.6 after ante dating his date of promotion as Deputy Director General (G) w.e.f. 01.04.2015 and quashing thereof to that extent claim of the applicant has not been considered.
(ii) Quash order No.3633/SP4/F-1211/PS& Others/CHQ/2017-GC dated 19.12.2017 passed by Respondent No.3, based on letter 4 OA No.2159/2021 Item No.26 CT-1 dated14.12.2017, speaking order dated24.10.2017 and 16.10.2017, copy attached as Annexure A-2 (Colly), whereby request of the applicant for grant of Non Functional Upgradation in the light of order of Hon'ble Ernakulum Bench of Central Administrative Tribunal in O.A. No. 283/2013 decided on 26.10.2016 has been declined.
iii). Quash Order No. 6582/SP/A-
32013/Representation/2015/19A dated
04.10.2016 (Annexure A-3) whereby
representation of the applicant for notional fixation of date of promotion as Deputy Director General (Geology) (DDG (G) on 01.04.2015 has been rejected.
iv. Direct the respondents to reconsider claim of the applicant for grant of Non Functional Upgradation (NFU) as Additional Director General in HAG Grade (Rs. 67000-79000/-) at least w.e.f. 01.04.2016 with all the consequential benefits including revised retiral benefits w.e.f. 01.06.2016 on two counts to the applicant:-
(a) To consider claim of the applicant on the basis of judgment of the Hon'ble Ernakulam Bench rendered in O.A. No.283/2013 decided on 26.10.2016 with reference to DOPT letter dated24.04.2009 (A-14) read with O.M. dated01.07.2010 along with annexure (A-16) where under an officer of Organized Group „A‟ Service is entitled to be considered for non-
functional Upgradation at the same level at which an IAS officer of two years later batch is empanelled and promoted as such and in the case of the applicant, he being an officer of Organized Group „A‟ service of Geological Survey of India and in Case of applicant he being an Officer of 1979 Batch and an officer of Indian Administrative Service of 1981 batch having been empanelled as Joint Secretary in SAG and orders have been issued on 03.01.2006, thus the applicant along with his batch is entitled to be considered for SAG/Deputy Director General (G) grade of Rs. 37400-67000 with GP RS. 10,000/- w.e.f. at least 01.04.2015 (though he is entitled 5 OA No.2159/2021 Item No.26 CT-1 for the same w.e.f.03.01.2006) and further Non Functional Upgradation/HAG Grade of Rs.67000- 79000 w.e.f. at least 01.04.2016 (though he is entitled from 02.07.2013) , date from which an officers of 1981 batch have been empanelled and posted as Additional Secretary on 02.07.2013 vide DOP&T Order dated 24.07.2013.
(b) By conducting review DPC for promotion as Additional Director General (G) (ADG (G)) and Deputy Director General (G) (DDG (G)) for the year 2015-16 and to consider and promote the applicant as DDG (G) w.e.f. 01.04.2015 in terms of DOP&T guideline dated 22011/9/98-Estt(D), dated08.09.1998 and 22011/4/2013- Estt(D),dated 28.01.2015 as interpreted by the Hon'ble Delhi High Court WP (C) No.7416/2015 decided on 15.05.2018 and consequently to consider his claim for NFU in the grade of Additional Director General (G) in HAG grade w.e.f.01.04.2016.
v. Respondents may be directed to produce complete record of the case for kind perusal of this Hon'ble Tribunal.
vi. Any other relief to which the applicant is found entitled to in law and equity may also be granted in his favour.
vii. Cost of the case may kindly be awarded infavour, of the applicant."
2. In summary, the applicant is seeking quashing and setting aside of the orders dated 21.07.2017 and 19.12.2017 passed by the respondents rejecting the claims of the applicant. He is also seeking grant of Non Functional Upgradation as Additional Director General in HAG w.e.f. 01.04.2016 with all consequential 6 OA No.2159/2021 Item No.26 CT-1 benefits. The contention of the applicant is that on 01.04.2015, a total of 13 vacancies were existing in the grade of Additional Director General (HAG) and 4 vacancies in the grade of Deputy Director General(SAG). The applicant contends that the respondents have failed to conduct DPCs in time in terms of DOP&TOM dated 28.01.2015. It is the contention of the applicant that if this calendar had been followed, the respondents should have considered the applicant for promotion to the grade of DDG w.e.f.01.04.2015, thereby making him eligible for NFU in HAG on 01.04.2016 i.e. prior to his date of superannuation. He is seeking ante dating of his date of promotion as DDG w.e.f. 01.04.2015 and consequential benefit of NFU in HAG w.e.f. 01.04.2016 with revised retiral benefits as due to him.
3. The applicant has relied upon the following judgments in support of his arguments and claim:-
1. P.N. Premachandran Vs. State of Kerala-
2004(1) SCC 245
2. Union of India Vs. N.R. Banerjee and Others-1997(9) SCC 287 7 OA No.2159/2021 Item No.26 CT-1
3. Oinam Brajachand Singh Vs. Union of India
-2013 (2) Gau Lt 814, Guwahati High Court
4. Shri Ahongshangbam Tomba Singh vs. The State of Manipur - WP(C) 592 of 2021, Manipur High Court
5. B Kumaravel Vs. Union of India - 2018 LIC 3390 of Hon'ble Delhi High Court
6. Dr. Sahadeva Singh Vs. Union of India -
WP(C) 5549 of 2007 Decided on 28.02.2012 of Delhi High Court
7. Gurmit Singh vs. The Secretary, DOPT - OA No.1849/2016 of CAT Principal Bench
8. Dr. C.P. Singh Sengar Vs. UOI - OA No.792/2012 of CAT Principal Bench
9. Deep Chand Sharma & Ors. Vs. UOI - OA No.1709/2012 of CAT Principal Bench
10. Ajay Kumar Shukla & Others Vs. Arvind Rai & Ors. - Civil Appeal 5966/2021 dated 08.12.2021
11. Dr. Umesh Kumar Mishra Vs. UOI -OA No.43/2015- CAT Guwahati Bench and WP(C) No.566/2019, Meghalaya High Court
4. The respondents have filed their counter affidavit opposing the OA. It is submitted that the respondents have held the DPC for the year 2015-2016 on 19.05.2015 and considered the case of the applicant along with others. He was empanelled at Sl. No.7 for promotion to DDG. He was considered for promotion w.e.f. 01.06.2015 against the 7th vacancy which 8 OA No.2159/2021 Item No.26 CT-1 occurred during that year and was accordingly promoted to the post of DDG on 24.06.2015. Since he retired on superannuation w.e.f. 31.05.2016, he had not completed one year service in the grade of DDG(G) on the crucial date of considering eligibility i.e. on 01.04.2016 in terms of the rules and, therefore, was not granted NFU in HAG.
5. The respondent have also relied upon a catena of judgments in support of their arguments which are listed below:-
(i) Head Constable Sardul Singh v.
Inspector General of Police Punjab and Others, AIR 1970 Punjab 481.
(ii) State of Haryana v. Subash Chander Marwaha and Others, AIR 1973 SC 2216
(iii) Union of India and Others v. K.K. Vadera and Others, AIR 1990 SC 443
(iv) T.N. Administrative Service Officers Assn. v. Union of India, (2000) 5 SCC 728
(v) State of Uttaranchal v. Dinesh Kumar Sharma (2007) 1 SCC 683
(vi) Nirmal Chandra Sinha v. Union of India - (2008) 14 SCC 29
(vii) K.V. Subba Rao v. Govt. of A.P. (1988) 2 SCC 201
(viii) Sanjay K. Sinha-II v. State of Bihar (2004) 10 SCC 734 9 OA No.2159/2021 Item No.26 CT-1
(ix) K. Ramulu (Dr.) v. (Dr.) S. Suryaprakash Rao, (1997) 3 SCC 59
(x) Union of India v. Vijender Singh &Ors.,2011 (176) DLT 247
(xi) Ram Nias, Junior Engineer, Marketing Board, Faridabad v. The Haryana State Agricultural Marketing Board, Panchkula and Anr.1994 (2) SLR 729
(xii) Union Territory, Chandigarh & Others v. Tarilochan Singh & Others, CWP No.17079-CAT of 2013 (O&M)
6. It is the contention of the respondents that the DPC for the post of DDG was held for empanelling the suitable officers against 26 vacancies. This was for the year 2015-2016 and also took into account the existing anticipated vacancies. In the DPC, the applicant was placed at Sl. No.7 and was accordingly promoted against the vacancy which occurred on 01.06.2015. He could not have been promoted prior to that as there were other candidates senior to him and empanelled by the DPC. The assumption of the applicant that if the promotions for the higher grade of ADG had taken place in time, more number of vacancies could have occurred and if the DPC had taken place earlier, the applicant could have been promoted prior to 10 OA No.2159/2021 Item No.26 CT-1 01.04.2015 and consequently could have become eligible for grant of NFU in HAG before his retirement. These are matters of assumption and the argument of the applicant is against the rules and procedures and he has no claim for ante dating of his promotion.
7. Heard the applicant appearing in person and learned counsel for the respondents as well as perused the written arguments along with the relied upon judgments.
8. The applicant in this OA has challenged the orders dated 21.07.2017 and 19.12.2017 which directly or indirectly deny him Non Functional Upgradation as Additional Director General (ADG) in HAG w.e.f. 01.04.2016. It is argued by the applicant that as on 01.04.2015, the cadre strength in Geological Survey of India was 83 which include 1 post of Director General(DG), 13 posts of Additional Director General(ADG) and 69 posts of Deputy Director General(DDG). The feeder cadre for promotion to the post of ADG is DDG and for the post of DDG the feeder cadre is Director(G). According to the applicant, on 01.04.2015, top 13 persons could have been appointed 11 OA No.2159/2021 Item No.26 CT-1 as ADG and the remaining, out of 83, should have become DDG and that the applicant being at Sl. No.73 as Director fulfilled all the eligibility conditions for promotion to the post of DDG. The respondents held the DPC for the year 2015-2016 on 19.05.2015 instead of January 2015 and this resulted in delayed promotion to the applicant as DDG. He was promoted w.e.f. 24.06.2015, as a consequence thereof he could not complete one year in DDG grade before his superannuation on 31.05.2016. He has vehemently argued that the delay in promoting him to the post of DDG has been caused by the respondents in view of delay in holding of DPC which resulted in denial of NFU in HAG to the applicant and, therefore, his promotion as DDG may be ante dated from 24.06.2015 to 01.04.2015 and consequently he should be granted notional promotion w.e.f. 01.04.2015 and be considered for grant of NFU in HAG.
9. It is evident from the records that the applicant joined GSI on 11.12.1979 as Geologist and was subsequently promoted as Senior Geologist on 18.12.1998. He was also granted NFSG w.e.f. 12 OA No.2159/2021 Item No.26 CT-1 29.10.2010. Further, he was considered for promotion to the post of DDG(G) in GSI for the year 2015-2016. The DPC for the said promotion was held on 19.05.2015 for 26 vacancies which were existing and also anticipated. The applicant was placed at Sl. No.8 of the eligibility list. His name was considered by the DPC held on 19.05.2015 at the 7th place of the recommended panel. The applicant was considered for promotion w.e.f. 01.06.2015 against the 7th vacancy which occurred during the year and was promoted to the post of DDG w.e.f. 24.06.2015. He subsequently retired on superannuation on 31.05.2016.
10. We have perused the list of occurrence of the vacancy in the grade of DDG(G) for the year 2015- 2016 which is placed at Annexure R-1 to the counter reply filed by the respondents. According to the 26 vacancies for the year 2015-2016, the date of occurrence of vacancies for first four posts is 01.04.2015 and for the next 4 posts it is 01.06.2015. These are the vacancies which occurred on account of retirement of persons which took place in the month of March and May.
13OA No.2159/2021 Item No.26 CT-1
11. We find that the contention of the applicant regarding his promotion w.e.f. 01.04.2015 to be untenable as the regular promotion can be made against the clear vacancies. Holding of DPC at an earlier date would still not result in granting the promotion to the empanelled officers, as the promotion can only take place from the date of occurrence of vacancy which for all these 26 posts started from 01.04.2015 onwards. The applicant also could not have been posted against an earlier vacancy over those empanelled above him by the DPC. He was put on the recommended panel at Sl. No.7 and the 7th vacancy had occurred on 01.06.2015. The applicant has been rightly considered against the said vacancy and was promoted to the post of DDG on 24.06.2015.
12. It is argued by the applicant that had the DPC for the post of ADG been held earlier and those from DDG have been promoted to ADG, he would have been considered earlier than the date he was promoted.
13. We find that this argument is also not relevant to the case of the applicant as the non grant of promotion to him in NFU in HAG is connected with his promotion 14 OA No.2159/2021 Item No.26 CT-1 to the post of DDG. The promotion of DDGs to the post of ADGs and holding of the DPC for that purpose is not relevant to applicant's case.
14. The applicant is also seeking the benefit of NFU in HAG in terms of DOP&T OM dated 24.04.2009. The respondents have clarified that complete one year service in SAG i.e. in the grade of DDG is essential criteria for grant of NFU in HAG and as the applicant retired on superannuation w.e.f. 31.05.2016, he had not completed one year in SAG and, therefore, in terms of rules, he cannot be granted NFU in HAG. The OMs dated 15.12.2009 and 18.01.2011 by DOP&T have clarified this position.
15. We have perused the judgments relied upon by the applicant which are primarily with regard to holding of DPC in time as per the model calendar. These cases can be distinguished as the facts of the present OA are different from the facts of those cases. Specifically, the applicant is seeking relief against promotion of another group of higher positions in his organization whereas his case for promotion is for a level below i.e. DDG. Holding or non holding of the DPC for other positions in 15 OA No.2159/2021 Item No.26 CT-1 the organization is not relevant as the case of the applicant is not for those promotions/vacancies but for promotion to DDG and the vacancies thereto for which a DPC had been held. In the hierarchy, a number of consequential promotions may take place at different points of time which may or may not directly result in upgradation or grant of promotion to those in other cadres.
16. In this regard, the law has been well settled by the Hon'ble Supreme Court in Union of India and Ors. V. K.K. Vadera and Ors. AIR 1990 SSC 442, wherein it has been 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.
17. In the case of T.N. Administrative Service Officers Association v. Union of India (2000) 5 SCC 728, it has been observed that even when there is a vacancy, the State is not bound to fill up such vacancy 16 OA No.2159/2021 Item No.26 CT-1 nor is there any corresponding right vested in an eligible employee to demand that such post be filled up.
18. In State of Uttaranchal v. Dinesh Kumar Sharma (2007) 1 SCC 683, it is held that a person appointed on promotion shall not get seniority of any earlier year but shall get seniority of the year in which his/her appointment is made.
19. From the above, it is well established that the claim of the applicant seeking promotion from a back date is not sustainable. It is further observed that the Hon'ble Supreme Court in Nirmal Chandra Sinha v. Union of India has held that a promotion takes effect from the date of being granted and not from the occurrence of the vacancy or creation of the post.
20. In another judgment, relevant to the facts of the present case rendered by the Punjab and Haryana High Court in the matter of Ram Niwas, Junior Engineer v. The Haryana State Agricultural Marketing and Anr., wherein it has been held that a government employee cannot claim promotion as a matter of right. 17 OA No.2159/2021 Item No.26 CT-1 The only right which vests in him is for consideration of his name for promotion when the question of promotion is being considered by the competent authority. Merely because a vacancy of a promotional post occurred on a particular date will not clothe any rights on a government servant to claim the promotional post. The relevant date for consideration of eligible candidates available for promotion is when the State Government decides to fill the promotional post. It is prerogative of the State as to when a vacancy occurring on the promotional post is to be filled.
21. It is also a fact that the date of retirement is a fixed date and cannot be related to promotion during the career. An assumption that had the promotion been granted from a certain date, an employee would get the consequential further promotions is not a guaranteed condition of service. In the case of the applicant the action taken by the respondents in considering him for the DPC for the year 2015-2016 does not suffer from any infirmity or illegality. He was not only considered for promotion but also placed in the recommended panel. The DPC was held for 26 18 OA No.2159/2021 Item No.26 CT-1 vacancies which were occurring on different dates during the year.
22. Having been placed Sl. No.7 in the recommended panel, he was considered on his turn against the vacancy that occurred and was accordingly promoted on 24.06.2015. It is only incidental that he retired on superannuation w.e.f. 31.05.2016 and, therefore, could not complete the required period of one year in SAG Grade for being eligible for grant of NFU in HAG.
23. In view of the facts and circumstances and the above quoted judgments, we find that this OA is devoid of merit and the same is accordingly dismissed.
24. There shall be no order as to costs.
(Mohd. Jamshed) (Justice Ranjit Vasantrao More) Member(A) Chairman /vandana/