Union of India and Anr. v. Bishan Dass

1. The challenge in this petition is to an order dated January 17, 2023 passed by Central Administrative Tribunal in O.A. 2451/ 2017, whereby the Tribunal has allowed the OA by stating in paragraphs 8 and 9 as under:-

2. The facts as noted from the record are that the respondent was appointed as Section Officer, on regular basis on December 24, 1991 in terms of LDCE held in the year 1990. He superannuated on June 30, 2005. In the year 2009, a select list for the post of Under Secretary was issued by petitioner no.1 wherein the respondent was placed at serial No. 650. He could not get any promotion till the date of his superannuation. It is the conceded case of the parties that in the year 2009, person junior to the respondent was promoted to the post of Under Secretary w.e.f. July 01,

2003.

3. Respondent feeling aggrieved by the promotion of his junior made a representation dated April 20, 2012 which was rejected on June 29, 2012. We have already reproduced relevant paragraphs of the order of the Tribunal while allowing the O.A.

4. The only submission made by Mr. Mishra by drawing our attention to page 87 of the paper book is that the Rule 6(3)(c) of The Central Secretariat W.P.(C) 12213/2023 Page 3 Service Section Officers’ Grade (Competitive Examination) Regulations, 1966, which reads as under, stipulates that, on retirement of an officer, his name is removed from the select list:- “xxx xxx xxx 6.(3)(c) Persons who die or retire from service or whose services are otherwise terminated; and”

5. His submission is that the Select List included the name of the respondent though he had retired. On the date of DPC, as he stood retired and in terms of Rule 6(3)(c), he could not have been considered for promotion.

6. We are unable to agree with the submission made by Mr. Mishra for the simple reason that the promotion of the so called Junior was not w.e.f., 2009, i.e., prospective but from a retrospective date/year i.e., July 1, 2003 when the respondent was working with the petitioners.

7. We are of the view that the Tribunal is justified in relying upon its judgment in P. G. George v. GOI & Anr., OA No. 1409/2009 decided on April 22, 2010. Suffice to state, the writ petition filed by the UOI being W.P.(C) 4864/2010, (UOI and Anr. v. P.G. George) has been dismissed by this Court. In fact, this Court had also decided a similar issue in W.P.(C) 2053/2020 titled as Bhagwan Singh v. Union of India and Ors. wherein this Court has in paragraphs 8, 9 and 10 has stated as under: “The law in this regard is well settled, as relied upon by Mr.Behera in the case of Union of India & Anr. vs. P.G. George, W.P.(C) 4864/2010, decided by this Court on July 23, 2010, wherein this Court in paragraphs 6 to 16 held as under: “6. We note that learned counsel for the petitioner seeks to urge the same very points which have been dealt with by the Tribunal. Since we agree with the entire process of reasoning of the Tribunal, we need not reiterate the said W.P.(C) 12213/2023 Page 4 reasons and unnecessarily pen a lengthy order, which would be nothing else other than rewriting, in our own words, the language of the impugned order.

7. Suffice would it be to state that as correctly held by the Tribunal, if the Department fails to convene a Departmental Promotion Committee in time and gives no reasons for delay and then considers all the eligible candidates as on the date of vacancy and by the time a few, who are empanelled, have retired they cannot be denied the benefit of a notional appointment to the post in question. As rightly held by the Tribunal, having not worked on the post in question they would not be entitled to wages, but for purposes of pension, after giving them notional appointment, pensionary dues would have to be paid in the applicable scale.

8. The Tribunal has rightly held that under the OM dated 12.10.1998, the only bar is that the benefit of actual promotion would not be given to these employees, meaning thereby, the retired employees would not get wages. But, the impact of the circular dated 13.2.2009 where it is clearly stated that the empanelled candidates would be benefit to the dues on notional basis would mean that such retired employees who could not get actual promotion would be entitled to notional promotion.

9. We may wish to add one extra reason in support of the finding returned by the Tribunal.

10. Learned counsel for the petitioner concedes that such Government employees who are empanelled at a later date and are still in service are granted notional promotion to the post in question with effect from the date of the vacancy, meaning thereby, these candidates are given the applicable pay scales with increments in the scale with effect from a retrospective date, but salary in the higher scale with increments is paid from the date they joined. This means that the benefit of notional promotion in the form of being placed in the higher pay scale with a retrospective date is given to them. Thus, there is no reason why the same benefit be also not extended to the retired employees who could not W.P.(C) 12213/2023 Page 5 earn promotions for no fault of theirs.