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UNION OF INDIA AND ANR. ..... Petitioners
Through: Mr.Anuj Aggarwal with Mr.Gaurav Khanna, Advs.
Through: Mr.Ankur Chhibber, Adv. for Resp. 1 & 2
Mr.Naresh Kaushik, Adv. for R-3/UPSC
HON'BLE MR. JUSTICE SANJIV KHANNA
JUDGMENT
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 Invoking the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, the petitioners have called in question the legal defensibility of the order dated 2nd December, 2010 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (for short „the tribunal‟) in OA No. 2480/2009 whereby the tribunal has acceded to the prayer made by the respondents No.1 and 2, the applicants before it, by directing the Union of India 2011:DHC:4523-DB and its functionaries to accord actual promotion by giving effect to the finding of the Departmental Promotion Committee (DPC) conducted in association with the Union Public Service Commission (for short „the Commission‟) and further to extend the consequential benefits of promotion and revised pensionary benefits along with arrears within a period of three months.
2. Shorn of unnecessary details, the facts which are essential to be stated are that the respondent No.1 got promotion to the rank of Assistant Director, Grade- II and superannuated on 30th April, 2005. The respondent No.2 was promoted to the said rank and retired on 31st January, 2005. The names of 20 eligible candidates were forwarded to the DPC for consideration against the vacancies arising in 17 posts and the names of the two respondents were included in the said list. The DPC could only be held on 27th December, 2005 and by that time the respondents No.1 and 2 along with five others had attained the age of superannuation and, therefore, their cases could not be considered for promotion.
3. Being grieved by the aforesaid action of the employer, the respondents knocked at the doors of the tribunal. The tribunal placing reliance on the decisions in Gopi Chand Vishnoi v. State of U.P. & Anr., (2006) 9 SCC 694 and Union of India & Anr. v. Hemraj Singh Chauhan & Ors., 2010 (3) SCALE 272 expressed the view that if a promotion is denied in an erroneous manner to a government servant who retires on superannuation, the said benefit has to be extended with retrospective effect. The tribunal also expressed the view that the DPC has to be held at regular intervals but when the same is not done, the employee should not suffer. Being of this view, the tribunal opined that the employer has not acted in a fair and legal manner and issued the directions as has been stated hereinabove.
4. It is averred in the petition that the respondents No.1 and 2 were promoted to the higher grade, that is, the post of Assistant Director (Grade-II) prior to the date of retirement and the next promotional post is Assistant Director (Grade-I). It is contended that the delay in holding the DPC was due to certain bona fide reasons and that ADS (Grade-I) is the entry grade of the Indian Supply Services and the last DPC for promotion to the said grade was held in 1992. No DPC could be held till 27th December, 2005 due to Cadre Review and re-structuring of the cadre. After the cadre review took place, the sanctioned strength in the grade of ADS (Grade-I) was reduced from 50 to 37 and after the cadre review, the Indian Supply Services Grade Service (Group-A) Rules, 1994 (for short „the 1994 Rules‟) were notified on 9th September, 1994. In 1995 against the sanctioned strength of 37, the working strength was 50. The vacancies arose subsequently in the grade of ADS (Grade-I) and they were first adjusted against such review strength. After a series of discussions and deliberations, a report was finalized in 1999 and a study was made for restructuring of the cadre. With the implementation of the recommendations of the Fifth Central Pay Commission, DOP&T issued certain guidelines, which were required to be incorporated in the Recruitment Rules. The said guidelines / instructions read as: - “(i) DOPT‟s O.M. dated 25.5.1998 regarding incorporation of revised pay scales, modifications in the deputation clause and substitution of existing „vacancy based recruitment‟ by „post based recruitment‟;
(ii) DOP&T‟s O.M. dated 27.3.1997 regarding substitution of the existing method namely selection by merit and selection-cum-seniority by selection;
(iii) DOP&T‟s O.M. dated 12.01.1998 regarding reconstitution of the DPC by associating a nominee of DOP&T;
(iv) DOP&T‟s O.M. dated 21.5.1999 to incorporate that there shall be no consultation with the UPS in case of confirmation of Group A officers; and
(v) DOP&T‟s O.M. dated 06.06.2000 prescribing higher pay scale for Junior Administration Grade officers of the organized Central Group A. Engineering Services and a Selection Grade Non-functional for the Senior Time Scale posts and consequently, the eligibility services etc. for appointment to the JAG level posts and also grant of Non-functional Selection Grade to Senior Time Scale.”
5. In order to incorporate these instructions the amendment to 1994 Rules was initiated in August, 2000 and eventually the Indian Supply Services (Amendment) Rules could be finally notified on 23rd June, 2004.
6. In view of the aforesaid exercise, the government took a conscious decision to treat all the 17 posts belonging to Departmental Promotion Quota of ASD (Grade-I), which were available prior to amendment of recruitment rules on 23rd June, 2004 to fill up the post as per the amended recruitment rules and to treat the vacancies pertaining to the year 2004-2005.
7. After the said decision was taken, a DPC was held on 27th December, 2005 and the UPSC on 4th January, 2006 forwarded the names of 17 candidates. The respondents No.1 and 2 could not be promoted as they had already retired from government service. As assertion was made by the respondents before the tribunal that in accordance with the DOP&T‟s O.M. No. 22011/4/98- Establishment.(D) dated 12th October, 1998, retired officials are not to be included in the panel as they have no right to claim promotion.
8. The tribunal, considering the rivalised stand put forth before it, came to hold as follows:
9. We have heard Mr. Anuj Aggarwal, learned counsel appearing for the petitioners and Mr. Ankur Chhibber, learned counsel appearing for respondent Nos. 1 and 2 and Mr. Naresh Kaushik, learned counsel appearing for respondent No.3.
10. On a perusal of the material brought on record, it is quite vivid that there were 37 sanctioned posts in 1995 but the working strength was 50. Vacancies arose at a subsequent stage. The incumbents working in the working strength were adjusted against the reviewed strength. When the steps were being taken on the basis of the recommendations of the 5th Central Pay Commission, DOPT issued certain guidelines. Regard being had to the changed situation, the rules were amended and finalized in the year 2004. A conscious decision was taken to fill up the 17 posts. Thereafter, the decision was taken to fill up the posts. The tribunal has proceeded on the assumption that there was delay in holding the DPC and for that a retired employee should not be deprived of the benefit of promotion. As the facts would demonstrate, the working strength was more than the sanctioned strength; that there was subsequent review of the posts and the working strength was adjusted; and that a study was made for restructuring of the cadre and that steps were taken for amendment of the rules. In our considered opinion, not holding of the DPC was on valid and based on relevant consideration and it cannot be termed as arbitrary. A candidate does not have a vested right for being promoted. He has a right to be considered and as we perceive it is not a case where meetings of the DPC were arbitrarily or malafide cancelled without any justification. A two-Judge Bench of the Apex Court in K. Madhavan and another v. Union of India and others, AIR 1987 SC 2291 has held thus:
11. In the case at hand, as we have already stated hereinbefore that no DPC was and by the time consideration took place the applicants before the tribunal had already attained the age of superannuation. It is not their case that the juniors were promoted at the time when they were in service and DPC was not held or scheduled to be held was cancelled.
12. In this context, we may refer with profit to the decision in Union of India v. K.K. Vadera, AIR 1990 SC 442 wherein their Lordships have stated thus: “…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 on which such post falls vacant. In the same 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 being granted. If on the contrary, promotions are directed to become effective from the date of the creation of additional posts, then it would have the effect of giving promotions even before the Assessment Board has met and assessed the suitability of the candidates for promotion. In the circumstances, it is difficult to sustain the judgment of the Tribunal.”
13. In Baij Nath Sharma v. Hon’ble Rajasthan High Court at Jodhpur and another, 1998 SCC (L&S) 1754 their Lordships referred to the decision in K.K. Vadera (supra) and proceeded to state as follows:
15. If the obtaining factual matrix is scrutinized on the touchstone of the aforesaid enunciation of law, we have no trace of doubt that the tribunal has absolutely erred in its appreciation of facts as well as law by not taking note of the fact about the vacancy position, occurrence of vacancy, the restructuring of cadre and amendment of rules and also by expressing the view that the respondents who were applicants before the tribunal were entitled to be considered promotion from the date of vacancy and thereafter issued the directions which we have already reproduced. In our considered view, such directions are not on the correct appreciation of facts and definitely on the erroneous and fallacious interpretation of law. Thus, the decision rendered by the tribunal is absolutely unsustainable.
16. Resultantly, the writ petition is allowed and the order passed by the tribunal is set aside. There shall be no order as to costs.
CHIEF JUSTICE SEPTEMBER 5, 2011 SANJIV KHANNA, J. ks/dk