Union of India v. L.R. Meena

1. Whether reporters of the local papers be allowed to see the judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes DIPAK MISRA, CJ Calling in question the legal defensibility of the order dated 14th December, 2010 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (for short „the tribunal‟) in OA NO. 718/2010, the Union of India and its functionaries have invoked the 2011:DHC:4694-DB jurisdiction of this Court under Articles 226 and 227 of the Constitution of India and prayed for issue of a writ of certiorari for quashment of the same.

2. The facts which are necessary to be stated for the purpose of adjudication of this writ petition are that the first respondent approached the tribunal in OA No.2846/2009 for issuance of a direction to the respondents therein to take action on the recommendations of the Departmental Promotion Committee (DPC) and the tribunal vide order dated 12th October, 2009 directed that the applicant therein was at least entitled to know the reasons why the recommendations made by duly constituted DPC had not been given effect to and, accordingly, directed the respondents therein to deal with the representation dated 24.09.2009. After the said order, the present petitioners, who were the respondents before the tribunal, gave the following information to the first respondent herein: “Subject: Representation dated 24.9.2009 from Shri LR Meena, DDGM (ISSD) reg. promotion to the post of ADGM on implementation of DPC. The undersigned is directed to refer to the subject mentioned above and in pursuance of order dated 12.10.2009 of Hon. CAT, Principal Bench in OA No.2846/2009 and order dated 1.12.2009 in MA No.2400/2009 in OA No.2846/2009, the matter has been dealt with in accordance with law and the following information is passed on to the applicant:-

2. The point wise information sought by Shri LR Meena in his representation dated 24.9.09 and the reply thereof is tabled below:

┌───────────────────────────────────────────────────────────────────────────────────────────┐
│        Sl.    Point wise information sought by         Reply                              │
│        No.    Shri LR Meena                                                               │
├───────────────────────────────────────────────────────────────────────────────────────────┤
│        2.     The recommendation of the duly           Recommendation                     │
│               constituted Departmental Promotion       s of DPC are                       │
│               Committee     approved     by    the     under process.                     │
│               DoPT/UPSC may kindly be made                                                │
│               effective with the approval of                                              │
│               competent authority, if required, in                                        │
│               the light of existing recruitment                                           │
│               rules.                                                                      │
│        3.     Since he is holding the post of          Action is                          │
│               DDGM        since    30.11.2005   and,   underway to                        │
│               therefore, he may be considered for      consider the DPC                   │
│               promotion form his date of eligibility   recommendation                     │
│               in the light of existing vacancies and   by competent                       │
│               recruitment rules for the post of        authority.                         │
│               ADGM as per the Supreme Court                                               │
│               judgment dated 04.03.2.193 in Civil                                         │
│               Appeal No.2954-55 an 2956-57 of                                             │
│               1980- Y.V. Rangalah and Ors. Vs. J.                                         │
│               Sreenivasa Rao and Ors.                                                     │
│        4.     The Bio-data called for the post from Promotions are                        │
│               DDGMs for the next promotion may considered as per                          │
│               be kept in abeyance till recruitment extant RRs.                            │
│               rules are approved by the competent                                         │
│               authority and notified.                                                     │
│ WP(C) No.1505/2011                                             Page 3 of 19               │
│                                                                        2011:DHC:4694-DB   │
│ 3.     After the said information was furnished, the first respondent                     │
└───────────────────────────────────────────────────────────────────────────────────────────┘

5. A counter affidavit was filed by the Union Public Service Commission (UPSC) to the effect that DPC met on 25.2.2009 to consider the eligible officers for promotion to the grade of ADGM in the IMD for the vacancy year 2009-2010 for three vacancies and the applicant was considered by the DPC and assessed to be fit for the promotional post.

6. The tribunal referred to the decisions in Nirmal Chandra Bhattacharjee (supra) and Nally Bharat (supra) to highlight the concept of avoidance of injustice and hardship and proceeded to state as follows:

7. Assailing the aforesaid order, it is submitted by Mr. R.V. Sinha, learned counsel for the petitioner that the tribunal has fallen into error by issuing a direction for appointment of the first respondent to the post in question despite the fact that by efflux of time, life of the select list had become extinct. It is also urged by him that the respondent No.1, in the meantime, has been extended the benefit under Flexible Complementing Scheme (FCS) and by virtue of that, he has been brought into the higher grade, that is, Scientist „F‟ and, therefore, the entire exercise has become futile. It is his further submission that when a conscious decision was taken not to fill up the post and to amend the rules, no right had accrued in favour of the first respondent and, therefore, the tribunal could not have issued a direction to promote him to the grade of ADGM. He has commended us to the decisions in, M.P. Electricity Board v. Virendra Kumar Sharma, (2002) 9 SCC 650 and Girdhar Kumar Dadhich & Anr. v. State of Rajasthan & Ors., (2009) 2 SCC 706.

8. Mr. Shrigopal Aggarwal, learned counsel appearing for respondent No.1, countering the aforesaid submissions of Mr. Sinha, has contended that when the respondent No.1 was declared fit by the UPSC and the select list was alive, there was no justification or warrant not to confer the benefit of promotion on him. It is canvassed by him that under the Flexible Complementing Scheme for promotion to the grade of Scientist „F‟, there is no promotion to the grade of Scientist „F‟ as it is under a scheme and in any case, the said benefit was bestowed on 1st April, 2010, whereas he was found fit for promotion by the DPC on 1st February, 2010. The learned counsel would further propone that the FCS is like ACP and has nothing to do with promotion and the promotional post in the category of ADGM, which is a higher post and, hence, the controversy has to be restricted to the selection and appointment to the promotional post and the submission put forth by the petitioners that in view of the extension of benefit under the scheme, the grievance of the respondent No.1 has been mitigated and the whole endeavour becomes an exercise in futility is totally unacceptable. The learned counsel has drawn inspiration from Dr. M.A. Haque & Others v. Union of India, (1993) 2 SCC 213 and A.K. Kraipak v. Union of India, (1969) 2 SCC 262.

9. To appreciate the rivalised submissions raised at the Bar, we have perused the order of the tribunal and the material brought on record. At the very outset, we would like to make it clear that the upgradation of the first respondent under the FCS has nothing to do with his promotion as the post of ADGM has been accepted to be a higher post. Thus, the issues that really deserve to be addressed are whether after the DPC had recommended the name of the first respondent for the promotion to the higher post, whether the authorities were entitled not to give effect to the said recommendation on the ground that the amendment to the Rules were under consideration and a conscious decision was taken not to fill up the posts and further whether after expiry of two years, the tribunal could have directed to confer on the respondent No.1 the benefit of promotion. Be it noted, there is no dispute as regards the factual score. The tribunal, as has been stated earlier, has proceeded on the ground of just and fair conduct by the employer. The tribunal has placed reliance in the case of Nirmal Chandra Bhattacharjee & Ors. (supra), wherein it has been held as follows: “Technically the Tribunal appears to be correct in its view that once in consequence of restructuring the appellants were placed in class „C‟ they could not be selected against class „C‟ posts reserved for class „D‟. But practically it results in such glaring injustice that the benefit which the petitioners got in consequence of restructuring made them worse off by depriving them of their chance of promotion to higher scale. The effect of the Tribunal‟s order has resulted in pushing down the appellants from class „III‟ post and in some cases even from still higher post as they had been granted second promotion as well to the post which they held in

1983. The hardship which stares in the face is that the appellants as a result of restructuring on which they had no control were placed in class „C‟ but thereby they lost the chance of moving on the promotional ladder had they chosen to remain in class „D‟. In other words by upgradation and restructuring of posts the appellants became worse off than what they would have been if they would have continued in class „D‟. Putting it differently the appellants who by virtue of restructuring came in class „C‟ could not be promoted to the post of Ticket Collector which is in class „III‟. Whereas the respondents who had been rejected in the selection along with the appellants and could not come in 65 per cent quota of the „D‟ class when it was restructured, have chance of being promoted against 33 ½ per cent in class „C‟ to the post of Ticket Collector and then further on. By this process the juniors and those who could not be selected, are likely to become senior and better placed than those who were placed in class „C‟. That indeed would be very unfair. No rule or order which is meant to benefit employees should normally be construed in such a manner as to work hardship and injustice specially when its operation is automatic and if any injustice arises then the primary duty of the courts is to resolve it in such a manner that it may avoid any loss to one without giving undue advantage to other.”

10. We have referred to the aforesaid passage to appreciate the factual scenario and how intervening circumstances cannot worsen benefit that has been already availed of. In our considered opinion, the principle laid down in the said decision is not attracted to the case at hand.