UOI & ANR v. SK Aggarwal

2 In the years 2006-07, 2007-08 and2008-09, 12, 6 and 25 vacanciesrespectively, existedinthepost ofRegionalProvidentFund Commissioner Grade-I, but no DPC was held in the years 2006, 2007 and 2008. A DPC was held on May 21, 2009, which considered the names of the eligible candidates andrecommended a year-wise panel. Regularpromotions weremade witheffect fromMay 21, 2009. Inthe interregnum, the respondents and a few other persons were granted ad-hocpromotions withbenefit ofpay scaleinthepromotionalpost 3_ The grievance ofthe respondents was that inthe absence of a regular promotion from the date when the vacancy became due, to which they were ultimately promoted, their right to further promotion to the post of Additional Central Provident Fund Commissioner would be adversely affected because of the requirement of qualifying service in the feeder cadre i.e. the post of Regional Provident Fund Commissioner Grade-I, as also their seniority; and by which we understand that there are direct recruitments made to the post of Regional Provident Fund Commissioner Grade-I, for if not, we see no issue of seniority being adversely affecteddependingonhow the seniority listis casted.

4. Withreference to the decisions reported as 1987 (4) SCC 566 K.Madhavan vs.UOL 1997 (9) SCC 287 UOI & Ors. vs. NR.Raneriee & Ors. and 2004 (1) SCC 245 P.N.Premchandaranvs. State ofKerala & Ors. as also a decision of the Tribunal, view taken by the Tribunal is that the respondents would be entitled to notional promotions fi-om the date vacancy against whichthey werepromoted fell due for the reason the respondents before the Tribunal i.e. the Union of India and the Provident Fund Commissioner could not W.P.(C)Nos.8102/2012,20/2013,99/2013 & 104/2013 Page[3] ofl[2] <?> furnish anyjustification for not holding DPCs on tune. Though not expressly noted bythe Tribunal,we may statethatinthereplyfiledto the Original Applications, the petitioners simply said that due to unavoidable reasons and administrative reasons beyond the control of the petitioners,DPC could not meet. What were the facts on basis whereofsaid stand wastaken were never pleaded.

5. We need to speak a word. 5_ ThatI could notdo something required to be done by me because ofan unavoidable reason or areason beyond my control,is a conclusion stated. What was the fact which constituted the j unavoidablereasonorareason beyond my controlhasto bestatedfor somebody to accept ajustification. The rules ofpleadings guide us that if an inference from a fact is pleaded as ajustification,the fact hasto be pleaded and nottheinference alone.

7 As we would proceed to note the law on the subject, we wouldfind thatto thenormalrule oflawthatnobody can bepromoted n with a retrospective effect except the exception is that when there exist facts which necessitates so or there is a rule which permits so.. Thus,the facts which necessitated the exception to be applied haveto be specifically pleaded. g. In the decision reported as 1987 (4) SCC 566 K.Madhavan & Anr. vs.UOl & Ors., the Supreme Court held that nobody can claim a right for appointment to a post as a matter of right. It was held that as a rule, retrospective appointment or promotion to a post should not be resorted to unless on a sound reasoning and foundation it becomes necessary to sparingly do so. With respect to scheduled DPCs, only if they were cancelled mala W.P.(C)Nos.8102/2012,20/2013,99/2013&104/2013 Page4ofl[2] fide,arbitrarily or withoutanyreasonablejustificationtothe prejudice of an employee, could the Government in such a case, to undo the injustice caused,grantpromotionfrom aretrospective date.

9 In the decision reported as 1989 Supp (2) SCC 625 Union ofIndia & Ors. vs. K.K.Vadera & Ors. the protagonists were the respondents,holding the post ofJunior Scientific Officers(Group 'B'posts)intheDefenceResearch&DevelopmentService. They had ^ earned promotiontothesaid postas and when apostfell vacant. The promotion order stipulated that they would be promoted to the posts of Scientists 'B' with effect from October 16, 1985 or from the date xf they would actually assume charge ofthe post to which they were promoted. The respondents filed an application before the Central Administrative Tribunal, Allahabad, claiming that they should have been promoted to the post of Scientists 'B' with effect from July 1,

1984. The Tribunal rejected the prayer ofthe respondents that their promotions should have been made with effectfrom July 1,1984 but directed thattheir promotions should be with effect from the date on which the promotional posts were created. The Supreme Court was t decidingthe Appealagainstthe viewtaken bytheTribunal. Allowing the Appealthe Supreme Courtobservedin para[5] as under:- «5 We do notknow ofany law or any rule under which a promotion is to be effectivefrom the date of creation ofthepromotionalpost.After apostfalls vacant for any reason whatsoever, a promotion to that post should befrom the date thepromotion is grantedand not from the date on whichsuchpostfall vacant.In thesame way when additional posts are created, promotions to those posts can be granted only after the Assessment Board has met and made its recommendations for promotions beinggranted." W.P,(C)Mos.8102/2012,20/2013,99/2013&104/2013 Page5of12

10. Relevant would it beto note thatas perthe decision there was no rule which was cited before the Court as per which promotion to the post had to be with retrospective effect i.e. from the date the postfell vacant. The observations ofthe Supreme Courtthat Wedo notknow ofany W would mean thatservicejurisprudence does not jurisprudentially recognize retrospective promotions. The decision would therefore mean that unless a specific rule exists evidencing to the contrary, promotions take effect from the date the person is actually promoted and notretrospectively. ][2 In the decision reported as(1998)7 SCC 44 BaijNath ^ shayma vs.Hon'hie RaiasthanHieh CourtAtJodhpur&Anr.,relying upon the law declared in K.K.Vadera's case (supra), since no rule was shown which could justify a retrospective promotion, and no mala fides pleaded or proved in delaying promotions,the Supreme Court held that the appellant, a Member of the Rajasthan Judicial Seiwice,could notbepromotedfromthe date avacancy accruedinthe Rajasthan Higher Judicial Service against which vacancy he was ultimately promoted. J[2]. The same view was reiterated in the decisions reported as AIR 2004 SC 3460 Saniav KSinha & Ors. V[5]. State ofBihar & Or-s.^ 2006(13)SCAI.E 246 S,tate of Uttaranchal^ Ors. Vs.Dinesh Kr.Sharma and 2008(14) SCC29 NirmalChandraSinha vs. UOI& Ors. The last decision i.e. in Nirmal Chandra Sinha's case (supra) referred to certain observations made by the Supreme Court in the decision reported as 1997(8)SCC 89 JlOf vs. B.S.Ag^arwal which tends to show to the contrary, as being made on the special W.P.(C)Nos.8102/2012,20/2013,99/2013&104/2013 PaS^^of12 r< circumstances ofthat case and on humanitarian consideration (refer para9ofthe decisionin NirmalChandra's case.;

13 In the decision reported as'(2007) 1 SCC 683 State of Jhtaranchal <Sr Anr. vs.Dine-ch kumarSharma it was observed:- "Respondent was working as a Subordinate Agriculture Services Group-I. Subsequently, he became eligiblefor promotion. A promotional post became vacant and thereafter,substantiveappointmentofRespondenttosaid post was made. Respondent.claimed seniority and consequential benefitfrom, date when promotional post became vacant. State Government rejected claim made by Respondent. On writ, Division Bench ofHigh Court directed state to reconsider case ofRespondent. Hence the appeal wasfiled which was allowed and it was held that under Rule8ofUttarPradesh GovernmentServants Seniority Rules, 1991 a person appointed on promotion shall not get seniority ofany earlier year but shall get seniority ofyear in which his/her appointment is made. Hence respondent was notentitled to seniorityfrom date when promotional post became vacant as no retrospective effect could be given to order of appointmentorder undertheRules." I4_ The decision is in line with the reasoning that unless a ^ rule to the contrary exists,promotions cannotbe made or directed to be made retrospectively.

15. With reference to the decisions where benefit of promotion from a.retrospective date was accorded, we find an unreported decision ofthe Supreme Court disposing ofCivil Appeal No.1655/1997 titled Union ofIndia & Anr. vs. Santhanakrishnan & Ors.. The facts were thatthere was delay in holding the examination to fill up posts which had fallen vacantinthe 33.33% quotaknown as Limited Departmental Competitive Examination under Rule 2(iii) of W.P.(C)Nos.8102/2012.20/2013,99/2013&104/2013 Page7of12 < ths Rslevant Rules. Whereas vacancies in the remaining 66.66/0 quota were being filled up in the year said vacancies arose,this was notdone withrespectto postsfalling vacantinthe33.33%quota. The question involved was the computation ofrequired minimum period ofservice amongthe class ofpromotees whoseresults were published in May 1985 whereas the actual promotions were effected in June 1985, for further promotion as Senior Assistant Engineer. The Tribunal gave due leavage for completing the process ofexamination and fixed the notional date'of promotion as 12.9.1982. Supreme Court observed that view taken by the Tribunal was right keeping in view thatby virtue ofsuchnotional date ofpromotion,the department was not put to any monetary loss and the promotees concerned were not entitled to any arrears ofsalary from that date,though for other pui-poses,includingseniority itwasordered to becounted.

16. The decision is purely on facts and fi-om the observations; 'After hearing the learned counsel appearing on either side, we are ofthe view that de-hors the niceties ofthe legal issues involved as also the interpretation ofthe relevant rules, substantial justice seems to have been rendered by attempting to resolve an unprecedented and one time problem which seems to have cropped up'itis butapparentthatthe Supreme Courthadin mind "■substantive justice' and thus the decision can be traced to the power of the Supreme Courtunder Article 142 ofthe ConstitutionofIndia. Yj In the decision reported as AIR 2004 SC 255 PJi Premachandran vs. The State of Kerala—&—Ors_., the private respondents before the Supreme Court could not be promoted on Regular Basis as Assistant Directors in time on account of W.P.(C)Nos.8102/2012,20/2013,99/2013 & 104/2013 PageSofl[2] (5 administrative lapses; however they were granted temporary promotions;DPG were notconvened from the year 1964to 1990 and hence the State of Kerala took a conscious decision that those who had 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 were• subsequently found to be eligible by the Departmental Promotion Committee to be promoted at a later date, 4 should be granted benefit ofpromotion with retrospective effect. In these circumstances noting a residual provision conferring power upon the State Government being Rule 39 of Kerala State & ^ Subordinate ServicesRules 1958,the Supreme Courtupheld the grant of promotion to" the private respondents with effect from a retrospective date.

18. The decision is in conformity with the consistent view taken by the Supreme Courtthat where an ad-hoc,temporary or stop gap promotion which is not fortuitous is followed by regular promotion and on the date of ad-hoc, temporary or stop-gap promotion the person was ehgible for regular promotion and there ^ existed a vacancy in the quota applicable and it was followed by a regular promotion,for purposes ofservice benefits pastservice could bereckoned as aregular serviceifaRule so permitted.

19. In the decision reported as 1995 (4) SCO 246 Vinod KumarSandalvs.UOI& Ors. due to reorganization ofthe cadre,DPC could not meet from the year 1979 to 1984. Bunching all the vacancies DPC was held in the year 1985, which was obvipusly wrong. The Supreme Court directed DPC to be convened with reference to vacancies accruing each year. Itwas directed thatbenefit ofretrospectivepromotion wouldbegiven. Butwefindnodiscussion on the legal issue whether as a matter ofrule retrospective promotioncan be effected,and it appearsthatthe consequential directionsfound a mention and a place in the decision not as a result ofa conscious view taken pursuantto a debate.

20. In alatestdecisionreported as2010(4)SCC290 UOI& Anr. V.y. Hemrai Sinsh C.hauhan & Ors., the facts were that the respondents, Members of the State Civil Service, were expecting promotion to the Indian Administrative Service under the promotion quotarequiringState Cadrereviewto be donewellintimeasperRule 4(2)oftheIndian Administrative Service(Cadre)Rules 1954andthe panel to last only for 60 days. There was an unexplainable delay causing severe prejudice to the respondents. Expressly invoking its power under Article 142 of the Constitution of India benefit of retrospective promotion was granted.

21 The cornucopia of case law above noted brings out the position (i)Service Jurisprudence does notrecognize retrospective promotion i.e. a promotionfrom a back date.

(ii) If there exists a rule authorizing the Executive, to accord promotion from a retrospective date, a decision to grant promotion from a retrospective date would be valid because ofa power existing to do so.