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HIGH COURT OF DELHI
W.P.(C) 120/2021 & CM APPL. 372/2021
GURCHARAN SINGH ...... Petitioner
Through: Mr. Vidya Sagar, Advocate.
Through: Mr. Naresh Kaushik, Advocate for UPSC.
Date of Decision: 07th January, 2021
HON'BLE MS. JUSTICE ASHA MENON
JUDGMENT
1. The petition has been heard by way of video conferencing.:
2. Present writ petition has been filed challenging the order dated 2nd November, 2020 passed by the Central Administrative Tribunal [CAT] as well as the departmental order dated 2nd
3. Petitioner also prays for a direction to the respondents to hold a review Departmental Promotion Committee [DPC] for considering the petitioner for promotion to the Junior Times Scale [JTS] of the Indian Civil Accounts Service [ICAS] w.e.f. 1 November, 2019. st November, 2019 on notional basis for the purpose of recalculating petitioner’s retirement benefits. 2021:DHC:56-DB
4. Learned counsel for the petitioner states that the petitioner had arbitrarily not been considered for promotion even when three vacancies existed. In support of his contention, he relies upon para 4.[5] of the Original Application filed before the Tribunal wherein it had been averred that there was vacancy on account of extension of deputation term of Shri Sahib Singh and on account of retirement of Shri B.S. Chaudhary on 01st
5. He points out that UPSC had promoted two similarly situated colleagues even when the respondent had informed UPSC that there was one vacancy. November, 2019.
6. Learned counsel for the petitioner submits that the legitimate expectations of the petitioner of being considered for promotion had been defeated by the acts of the respondents. In support of his submission, he relies upon the judgment of the Supreme Court in Union of India and Another Vs. Hemraj Singh Chauhan and Others, (2010) 4 SCC 290.
7. Having heard learned counsel for the petitioner and having perused the paperbook, this Court is of the view that an employee does not have the right to promotion but only a right to be considered.
8. In the present case the department by way of a reasoned order dated 2nd December, 2019 has taken a categorical stand with respect to the number of vacancies that needed to be filled in the year 2019. The department’s communication dated 2nd
10. In fact it is settled law that a promotion is not to be effected from the date of creation of the promotional post or from the date when the additional post is created or from the date on which such post falls vacant (Union of India v. K.K. Vadera, 1989 Supp (2) SCC 625).
11. Further, as no malice in fact has been alleged against any particular officer, the department’s view with respect to the number of vacancies in 2019 has to be accepted.
12. Keeping in view the aforesaid facts, the Supreme Court judgment in Union of India and Another Vs. Hemraj Singh Chauhan and Others (supra) is inapplicable to the facts of the present case.
13. It is also settled law that a retired employee cannot be promoted except when a junior has been promoted while the employee was in service. Since that is not the case in the present instance, the writ petition and application being bereft of merits are dismissed.
14. The order be uploaded on the website forthwith. Copy of the order be also forwarded to the learned counsel through e-mail. MANMOHAN, J ASHA MENON, J JANUARY 07, 2021 AS