UOI & Anr. v. P.K. Udgata & Ors.

1. The respondents of the. four. captioned petitions were. i working in tlre office of the Provident Fund Commissioner as Groripa A officers being appointed as direct recruits to the.post of Assistant;- provident l-uncl Cornmissioner,.earning promotion to the post of egional Provident Fund Commissioner Grade-II, all of them became eligible for- promotion to the post of Regional Provident Fund Cornmissioner Grade-I. Being promoted as Regional Provicieirt Fund Cornmissioner Grade-II.in the year 1999 all acquired eligibilily for. being promoted as Regional Provident Fund Commissioner Gracle-I in the year ZO04 since the eiigibility was 5 years service renclered in the feeder cadre. Pels0ns senior to them and achieving the bench marks, when the DPC met on \4ay 27, \

2. In the years 2006-07, 2007 -08 and 2008 -09, 12, 6 md 25 vacancies respectively, existed in the post of Regional Plovident Fund Commissioner Grade-I, brit no DPC was held in the years 2006,2007 ancl 2008. A DPC was held on May 2I,2009, which considered the names of the eligible canclidates and recommended a year-wise,panel' Regular promotions were tnade with effect fiom May 2I,2009 ' In the interregnuqr, th: respondents and a few other persons were gr.anted acl-hoc promotions with benefit of pay scale in the promoiionai post

3. The grievance of the respondents was that 'in the absence of a regular promotion from the date when the vacancy becaiirle due, to which they wele ultimately promoted, theii right to 'ftiither' promotion to the post of Adclitional Central Provident Fr"rnd Cornmissioner would be adversely affected because of the iecluirement of qualifying service in tire feeder cadre i'e' the post of Regionai Provident Fund Commissioner Grade-I, as also their seniority; -and by which we understand that thele are direct' recruitments. mad.e,o, the post of.Regional Provident Fund Cornmissioner Grade-I, for if not, we see no issue of seniority being aclversely affected depending'on how the seniority list is casted'

4. With reference to the decisions reported as 1987 (4) SCC 566 l{.Madhavan vs.(JOI, IggT (9) SCC 287. UOI & ors. vs. N.R.Eaner.iee & Ors. and2004 (1) SCC 245 P.N.Premchandaran vs' State qf l{erala & Ors. as also a decision of the Tribunal, vierv taken by the Tribunal,is that the lespondents would be entitled to notional promotions from the date. vacancy against which they were ptomoted v' a ftirnish any justification for not holding DPCs on tirne. Thor-rgh not expressly noted by the Tribunal, we may state that in the reply filed to the Original Applications, the petitioners simply said that due to unavoidable reasons and administrative reasons beyond the control of the petitioners, DPC could not rneet. What were the facts on basis, whereof said stand was talcen were never pleaded' > 5. We need to sPeak a word.

6. That I could not do something required to be clone by me' because of an unavoidable reason or a reason beyoncl tny contt'ol, is a conclusion stated. What was the' fact which constitutecl the. unavoidable reason or a reason beyond tny control has to be stzited for somebody to accept a justificariol. The rules of pleadings guide us that if an inference from a fact is pleacled as a justification, ilre fact has to be pleadect and not the inference alone

7. As we would proceed to note the law on the subject, we would find that to the nolmal rule of law that nobody can be promoted with a r-etrospective effect except the exception is that when there i' e>cist facts which necessitates so or thele is a rule which per:lits so' ' ' 'Ihus, the facts which necessitated the exception to be applied liave to be sPecificallY Pleaded' -8. In the decision reporlecl as 1981 (4) scc 566 I{.Madhavan & Anr. vs.UOI & Ors., the Supreme Court held that.nobody can claim a rigftt for appointment to a post as a mattel oI. right. It was held that as a rule, retrospective appointment or promotion to a post shouid not be resorled to unless on a sound t ^ '\ o ficle, ar-bitrarily or withor-rt any reasonabie justification to the prejr-rdice 'of an empioyee, coulcl the Government in such a case' to uildo the injustice causecl, grant promotion fiom a retrospective date. g. In the decision reported'as 1989 Supp (2) scc 625 Union o_f India & Ors. vs. I{.I{.Vadera & Ors. the protagonists were the respondents, holding the post of-Jrurior Scientific Officels (Grogp,B,.posts) in the Defence Research & Development Service. Th.ey had earned prornotion to the saicl post as and when a post fell vacant' The promotion orcler stipulated that they would be promoted to the posts of Scientists 'B' with effect from October 16, 1985 or from the date they would'actually assllme charge cjf the post to'which they were promoted. 'fhe respondents filed an application before the Central Administrative Tribunal, Allahabad, claiming that they shoulcl have '\ been promoted to the post of Scientists 'B' with effect ftorn Jr-rly i' IgB[4]. The Tribunal rejected the pl'ayel of the respondents that their proinotions should have been made with effect from July 1, 1984 but clirected that theil promotions should be with effect fi'oin the date on which the plorrotional pbsts wele created' The Supretne Cor-trt was deciding the Appeai against the view taken by the Tribunal. Allowing the Appeal the Supreme court observed in para 5 as under:- "5.... We do not lcnow of any lavv or any rtile und'er' which a promotion is to be effective from the date of creation a[7] tttu promotional post. Aftu, a post falls vacant. for any iuotoi whatsoever, a promotion to that post should be front the date the promotton is granted and not. fro* the date on which strch post fall vac-artt. In the sam.e -yta! yvhep additional posts are created, ptomotions l'o,,{ )l T

10. Relevant would i.t be to note that as per the decision there was no lrale which was cited before the Court as per which promotion to the post had to be with retrospective effect i.e. fiom the date the post fell vacant. The obserudtion, of tlie Supreme Courl that 'l'Ye clo not lcnow of any law' would rnean that service jurisprudence does not jurisprudentially recognize letrospective promotions. The decision,would therefore lnean thal unless a specific nrle exists evidencing to the contrary, prornotions take effect from the date the person is actually promoted and not retrospectively.

11. In the decision reported as (1998) 7 SCC 44 BaU--Nath ma vs. Hon';asthan Hi At Jodhwx & Anr-, relYing Lrpon the law declarecl in l{.K.Vadera'5 case (supra), since 1o rule was shown which could justifu a retrospective promotion, and no mala fides pleaclecl or proved in clelaying promotions, the Strpreme Coud held that the appellant, a Member of the Rajasthan Jr-rdicial Service, could not be promoted frorn the date aY"Dancy accrued in the Rajasthan Higher Judiciai Service against which vacancy he was ultimately promoted

12. The same view was reiterated in the decisions reporLed as AIR 2004 SC 3460 San-'ay l{.Sinha & Ors. vs.' State q'Bilmr & Ors.,2006 (13) SCALE 246 State qf Uttaranchal & Ors. Vs.Dinesh I{r.Sharma and 2008 (14 ) SCC 29 Nirmal C Ors. The last decision i.e. 'in Nirmal Chandra Sinha',t case (supra) refbrred to certain observations made by the Supreme Court in the clecision reporled as 1997 (8) SCC 89 UOI vs. B.S.Aggarwal which L' A "\> circumstances of that case and on humanitarian consideration (refer parag ofthe decision rn Nirmal Chandra s case') 13.. r" the decision reported as (2007) I scc 683 State o.f (Jttaranchal & Anr. vs. Dinesh lct'mtar Sharma it was observed:-,'Respondent was worlcing as a Sttbordinate ttgricilture. services Grotp-l. Sttbseqttently, he became eltgible for prontotion. A promotional post became vacant and ^thereafter, sybslantive appointment of Respondent to sai'd post was macle.' Respondent.claimed seniority, ancl, consequential benefit fro* date when promotional post became vacant. State Government reiected claim mad'e by Respondent- On writ, Division Bench of High Court directecl state to reconsider case of Respondent. Hence the appeal was fiIed ythi.ch was allowed and it was helcl that iider RuIe B of Uttar Pradesh Governtnent Serttant's Seniority]lttles,lgglaperso'nappointedonpromotiott shatt not get seniority of any earlier year but shall ge't ' sbniority ofyuo, in which his/her appointment is made,.Hence respondent yvas not entitled to seniority from date when prom\tional post became vacant as no retrospective ffict -could be given to order o'f appointntent order ttnder the Rules'"

14. The decision is in line with the reasoning that uuless a lule to the contrary exists, promotions cannot be made or clirected to be rnade retrosPectivelY'

15. with reference.. to the clecisions where benefit of promotion fiom a retrospective date was accorded, wo find an r-urreported clecision of the Supreme Court disposing of Civil Appeal No.i 65511997 titled, Ors.. The facts wele that there was delay in hoiding the examination t

16. ' The decision is purely on facts and fiom th" observalions: 'After hearing the learned cotmsel appearing on' either std.e, we qre of the iiew that de-horc ih" nicetiei of the legal isstrcs involved as also the interpretation of th[7] relevant rules, subsLantial. jttstice seems to have been rendered by attentpting to fesolve an tmprecedented and. one tinte problem vvhich seetns to have a'opped r,tp' rt is but apparent that the Supreme Court had in mind 'substantive justtce' and thus the clecision can be traced to the powel of the Supleme Court under Article 142 of the Constitr-rtion of India. n. In rhe decision reporled as AII{ 2004 sc 255 P.N.. Prentachandran vs. The State o-f l(erala & Ors., the private t\ a adrninistrative lapses; how<jver they we1"e. granted ' temporar'y promotions; DPC were not convenecl from the year 1964 to 1990 and ' hence the State of I(erala took a conscious d"ecision that those who had been acting in a higher post for a long time" aithougit o" u temporary basis, but were qualified at the time when they wele so promotecl ancl were subsecluently found to l" eligible tr)' the Departmental Promotion Committee to be promoted at a,latel date, should be granted benef,rt of promotion with retrospective effect" In tir.ese circumstances noting a residual provision conferring power upon the state Governrnent being Rule 39, of I(erala state &' Subordinate services'Rules 1958, the supreme court upheld tlie grant ofpromotiontotheprivacerespondentswitheffect.fioma retrospective date'

18. The decision is in conformity with the consistent view talcen by the Supreme Courl that where an ad-hoc, temporary 01' stopa gap, promotion which is not fortuitous is followed by regular protnotion and on the date of proryrotion the person was eligibie existed a vacancy in the quoth applicable a4d it was followecl by a regular promotion, for putposes of service.benefits past service cotild be reclconed as a reguiar service if a Rule so permitted' lg.Inthedecisionreportedaslgg5(4)SCC246Vinod. due to reorgantzation of the cadte, DPC could not meet from the year 1979 to tg84.. Bunching all the vacancies DPC was held in the year 1985, which was obviously ad-hoc, temPorarY or sIoP-gaP for regular Promotion and there J \> of retrospective promotion would be given. But we find no discussion o[1] the legal.issue whether as a matter.of ruie retrospective protnotion can be effected, and it appeals that the consequentiai directions,found a mention and a place in the decision not as a result of. a conscious view taken pLlrsuant to a debate.

20. In a latest decision reporled as2010 (4) SCC 290 UOI & nr. rs.. the facts were that the I Y lespondents, Members of the State Civil Service, wele expgcttng promotion to the Indian Administrative Service under the promotion quota requiring State Cadle review to be done well in time as per Rr"rle ae) ofthe Indian Administlative Service (Cadre) Rules 1954 and the paneltolastonlyfor60dal,s.Therewasanunexplainabledelay causing sevele prejudice to the respondents. Expressly invol<ing its power under Arlicle 14?,: of the Constitution of India benefit of retrospective promotion was gt anted. e 2L. The cornr-rcopia Of case law above noted brings or'rt the position:-