V.K. Kaushal vs Uoi & Ors.
2009 Latest Caselaw 5049 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of decision : 07th December, 2009


+                       WP(C) No.3924/2008


V.K. KAUSHAL                        ..... Petitioner
                          Through : Mr. R.K.Saini, Advocate

                     versus

UOI & ORS.                          ..... Respondents
                          Through : Mr. R.V. Sinha and
                                    Mr. A.S. Singh, Advocates

        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?

     2. To be referred to Reporter or not?                   No

     3. Whether the judgment should be reported in the Digest?No

PRADEEP NANDRAJOG, J. (Oral)

1. The petitioner joined as Assistant Engineer (Civil) under

the Border Roads Organization on 06.08.2001 and as per the

Recruitment Rules for the post of Assistant Executive Engineer

(Civil) became eligible to be considered for promotion to the

said post on 05.08.2004 since the Rule requires three years'

regular service in the Grade of Assistant Engineer (Civil) as the

eligibility condition for being promoted to the post of Assistant

Executive Engineer (Civil).

2. There existed two vacancies for the post of Executive

Engineer (Civil) and to fill up the same the DPC was held on

28.02.2007.

3. The candidature of the petitioner was considered. He

was placed at serial No.7 of the select list. There being only 2

vacancies, the same were filled up from the persons higher in

merit position.

4. For the next year i.e. the year 2007-08, due to increase

in the cadre strength, there existed 21 vacancies to the post of

Assistant Executive Engineer (Civil). Process was initiated to

convene the DPC. Since the rules require consultation process

with UPSC, on 03.08.2007, a request was sent to UPSC that a

DPC be convened. On 28.09.2007 UPSC responded stating

that it would be convenient to hold the DPC meeting on

26.12.2007.

5. For unavoidable circumstances, the DPC Committee

meeting could not take place on 26.12.2007 and was

adjourned to be held on 03.01.2008.

6. In the interregnum the petitioner retired on 31.12.2007

and thus his candidature was not considered.

7. The writ petition has been filed praying that directions be

issued to promote the petitioner to the post of Assistant

Executive Engineer (Civil) with effect from 28.02.2007 when

the vacancy exist or in the alternative from 26.12.2007 for the

reason, persons junior to the petitioner have been promoted.

8. We are afraid no relief can be granted to the petitioner

for the reason merely because a person has become eligible to

be considered for promotion and on said date a vacancy

existed does not mean that he gets an indefensible right to be

promoted from the said date.

9. Convening a Departmental Promotion Committee

meeting requires administrative approvals to be obtained and

in case where Rules require consultative process with UPSC,

the said body has to be associated in the promotion process.

Obviously, a time lag exists between a vacancy accruing and

the same being filled up.

10. It is settled law that no person has a vested right to be

promoted if a vacancy exists in the promotional post, the only

right which a person has is to be fairly considered along with

the other candidates.

11. Of course, where court holds that there is mala fide in

postponing a DPC meeting, in the said eventuality relief can be

moulded as was held in a decision reported as (1987) 4 SCC

566 K. Madhavan & Anr. Vs. UOI & Ors.

12. No mala fides are pleaded in the instant writ petition.

What has happened in the instant case is that the consultation

process was commenced well in time with the UPSC. UPSC

intimated the convenient date for holding the meeting of the

Departmental Promotion Committee to be 26.12.2007. It was

too perilously close to the date 31.12.2007 on which date the

petitioner superannuated. The DPC Meeting scheduled for

26.12.2007 was postponed for 03.01.2008, by which date the

petitioner had actually superannuated.

13. No Rule has been shown to us which prescribes a cut off

date as on which promotions had to be affected. We note that

pursuant to the DPC held on 03.01.2008, promotions were

affected in February, 2008.

14. Thus, we find no infirmity in the action of the

respondents in not granting any promotion to the petitioner.

The persons junior to the petitioner were promoted after the

petitioner retired from service.

15. The writ petition is dismissed.

16. No costs.

PRADEEP NANDRAJOG, J.

SURESH KAIT, J.

DECEMBER 07, 2009 'nks'