Dr. D.S. Mishra (Retd.), Joint ... vs Union Of India (Uoi), Through The ...
2003 Latest Caselaw 418 Del

JUDGMENT

Madan B. Lokur, J.

1. The Petitioner is aggrieved by a judgment and order dated 29th February 2000 passed by the Central Administrative Tribunal, Principal Bench, New Delhi dismissing his O.A. No. 1667/96. For convenience, the Central Administrative Tribunal is hereinafter referred to as the Tribunal.

2. The submission of the Petitioner in brief is that he has been working on an ad hoc basis as an Assistant Director in the Directorate of Adult Education since 27th May 1989. He says that he was regularly promoted to this post on the basis of the recommendations of the Departmental Promotions Committee held by the Union Public Service Commission, but the promotion was erroneously made with effect from 4th January 1995. According to the Petitioner he is entitled to regular promotion to the post of Assistant Director with effect from 27th May 1989, the date when he was first appointed as such.

3. The case made out by the Petitioner is that his promotion to the post of Assistant Director is against a regular vacancy created by the promotion of V.K. Asthana to the post of Joint Director with effect from 29th September 1988. Since the promotion of the Petitioner is against a regular vacancy, he is entitled to be regularized from the date of his promotion, that is, 27th May 1989. The Petitioner has placed reliance on a notification dated 7th June 1989 wherein it is stated that amongst others, V.K. Asthana is appointed on a regular basis in the grade of Joint Director from the date of his appointment, that is, 29th September 1988.

4. Learned counsel for the parties were heard on 9th and 10th April 2003 when judgment was reserved.

5. During the course of hearing of the case, it transpired that V.K. Asthana had earlier approached the Tribunal by filing two O.A.s being O.A. No. 1459/92 and O.A. No. 2278/95. The facts found by the Tribunal in these cases are of some consequence.

6. A perusal of the final order dated 3rd April 1998 passed by the Tribunal in O.A. No. 2278/95 (and the pleadings before us) shows that promotions in the Directorate of Adult Education are made on the basis of the Directorate of Adult Education (Group A and Group B posts) Recruitment Rules, 1981. In the grade of Joint Director, there are only three posts and all of them are required to be filled up by promotion.

7. A meeting of the Departmental Promotions Committee (DPC) was held on 9th September 1988. The DPC recommended the names of four officers for promotion to the posts of Joint Director. They were S.P. Jain, J.P. Gupta, V.K. Asthana and Ram Das. It appears that at that time J.P. Gupta was away on deputation. On the basis of the recommendations made by the DPC an order dated 29th September 1988 was issued appointing V.K. Asthana as a Joint Director till 28th February 1989 or till further orders, whichever is earlier. This ad hoc promotion of V.K. Asthana was repeatedly extended for several years for one reason or another.

8. When J.P. Gupta was to return from his deputation in 1992, V.K. Asthana expected to be reverted back to his substantive post of Assistant Director. It was then that V.K. Asthana filed O.A. No. 1459/92 in the Tribunal. On 2nd June 1992 the Tribunal passed an interim order restraining the Respondents from reverting V.K. Asthana. In view of the interim order passed by the Tribunal, the Respondents took steps for temporarily creating another post of Joint Director to accommodate V.K. Asthana till 31st July 1993 when the fourth promotee (Ram Das) was due to retire. Soon thereafter, O.A. No. 1459/92 came to be disposed of by the Tribunal on 10th September 1993 with a direction that V.K. Asthana may be allowed to continue to work on the post of Joint Director and that he should not be reverted without following the principles of natural justice.

9. In short, when J.P. Gupta returned from his deputation in 1992, there was no vacant post of Joint Director available and V.K. Asthana was holding an additionally created post of Joint Director on an ad hoc basis by virtue of interim orders passed by the Tribunal.

10. After the retirement of Ram Das on 31st July 1993, a meeting of the DPC was held on 30th August 1995 for promotion to the post of Joint Director. The DPC recommended the promotion of Mohan Kumar instead of V.K. Asthana. The effect of the recommendation of the DPC would have been the reversion of V.K. Asthana to his substantive post of Assistant Director. Consequently, V.K. Asthana filed O.A. No. 2278/95 in which he prayed, inter alia, that he should not be reverted to the post of Assistant Director and that he should be treated as having been regularly promoted to the post of Joint Director with effect from 29th September 1988 when he was first appointed as a Joint Director on an ad hoc basis.

11. After considering all the facts on record, the Tribunal passed an order dated 3rd April 1998 dismissing O.A. No. 2278/95 filed by V.K. Asthana.

12. As a result of the dismissal of O.A. No. 2278/95 by the Tribunal, it has to be taken as settled that (1) V.K. Asthana was promoted to the post of Joint Director only on an ad hoc basis with effect from 29th September 1988 and (2) his promotion was not against any regular vacancy in the grade of Joint Director. In fact, while dismissing O.A. No. 2278/95, the Tribunal noted that the claim of V.K. Asthana, that he was regularly promoted as a Joint Director, had not been granted while disposing of O.A. No. 1459/92 on 10th September 1993.

13. Learned counsel for the parties have given us to understand that the decisions rendered in O.A. No. 1459/92 and O.A. No. 2278/95 have become final. Consequently, we have to proceed on the basis that the promotion of V.K. Asthana in the grade of Joint Director was not against a regular vacancy but only on an ad hoc basis.

14. In this view of the matter, the bottom is knocked out of the case of the Petitioner in as much as his entire case proceeds on the basis that V.K. Asthana had been promoted against a regular vacancy. Since this is factually not so, it must be held that the Petitioner's promotion to the post of Assistant Director with effect from 27th May 1989 (against the vacancy created by the promotion of V.K. Asthana) was only on an ad hoc basis and not against any regular vacancy. Therefore, on the basis of this material now made available to us, we find no error in the decision taken by the Tribunal in dismissing O.A. No. 1667/96 by the impugned order dated 29th February 2000.

15. It may be mentioned that the Petitioner had filed a review application before the Tribunal seeking a review of the impugned order dated 29th February 2000. The review application being R.A. No. 92/2000 was dismissed on 6th April 2000. Although there is no formal challenge to this order, we have taken this fact on record on the request of learned counsel for the Petitioner.

16. Learned counsel for the Petitioner placed reliance upon P.S. Mahal & others vs. Union of India & others, to contend that if there is a deputation vacancy in existence for more than one year, then it should be taken into account by the DPC as a regular vacancy. This contention was not raised by the Petitioner before the Tribunal and even V.K. Asthana, for whose benefit this contention would inure, did not argue this before the Tribunal in any of the two cases filed by him. We are, therefore, not inclined to entertain this contention at this stage.

17. As regards the notification dated 7th June 1989 relied upon by learned counsel for the Petitioner, it appears that neither V.K. Asthana nor the Petitioner had brought it to the notice of the Tribunal. There is also no reference to this notification in the O.A. filed by the Petitioner. This is a little odd. It seems that the notification was erroneously issued. In any case, the other material placed before us contradicts the contents of the notification, to the extent that it is stated that the promotion of V.K. Asthana to the grade of Joint Director was made on a regular basis. We would, therefore, attach no weight to the contents of this notification.

18. Finally, it may be mentioned that learned counsel for the Respondents fairly stated before us that a regular vacancy in the grade of Assistant Director did arise with effect from 1st August 1993 and that the Petitioner is entitled to be regularly promoted to the grade of Assistant Director from this date. We take this statement of learned counsel on record and expect the Respondents to act on it.

19. For the reasons given by us, the writ petition is dismissed except to the extent that the Petitioner will be deemed to have been regularly promoted as an Assistant Director from 1st August 1993 instead of from 4th January 1995. There will be no order as to costs.