Delhi High Court
Shri A.N. Bardaiyar & Ors. vs Union Of India on 7 December, 2011
Author: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 7th December, 2011.
+ W.P.(C) 8545/2011
% SHRI A.N. BARDAIYAR & ORS. .......Petitioners
Through: Mr. Mohinder Singh & Mr. Ankur
Goel, Adv.
Versus
UNION OF INDIA ..... Respondent
Through: Mr. Saqib, Adv.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
JUDGMENT
RAJIV SAHAI ENDLAW, J.
1. The petition impugns the order dated 1st August, 2011 of the Central
Administrative Tribunal, Principal Bench dismissing OA 1264/2011 under
Section 19 of the Administrative Tribunal Act, 1985 preferred by the
petitioners.
2. The five petitioners joined the Government of India in the Central
Secretariat Services as Assistant and rose to become Section Officer, then
Under Secretary and reached the grade of Dy. Secretary in which rank they
retired on superannuation on 30th November, 2005, 31st December, 2005,
31st March, 2006, 31st March, 2006 and 31st July, 2006 respectively.
3. The next post for promotion in the cadre to which the petitioners
belonged, was of Director. The petitioners were eligible for the said
promotion since the year 2000-2001 when a list containing their names was
also prepared. However the Departmental Promotion Committee (DPC) was
held only on 27th July, 2006 and in which they were considered but not
promoted, having retired.
4. The case of the petitioners is that since they were eligible for
promotion since the year 2000-2001 and were not promoted for the reason of
the DPC having not been held, they are required to be promoted notionally
to the said post of Director and even though not claiming any emoluments of
the said post, are entitled to their retiral benefits including pension as
relatable to the post of Director.
5. The Tribunal has in a detailed well reasoned judgment held:-
(i). That there is no rule that promotion should be given from
the date of creation of the promotional post or from the
date of vacancy;
(ii). If promotion is effected prospectively from the date of
issue of the order of promotion, those employees who
have retired prior to such date would not be eligible for
promotion retrospectively. Even if retired employees are
in the select list or panel of promotion, they cannot be
given retrospective promotion when the promotion is
prospective;
(iii). Only if the promotion is granted retrospectively and a
person junior to the retired employee has been promoted
from the date when the retired person was in service and
if the retired employee has been found fit by the DPC and
is available in the panel or select list, would such retired
employee be entitled to promotion retrospectively on
notional basis from the date his immediate junior has
been promoted.
6. Finding that next junior to the petitioners had not been promoted
retrospectively or from the date when the petitioners were in service, the
petitioners, following the judgment dated 12th January, 2007 of this Court in
W.P.(C) No.20812/2005 titled Union of India v. Rajendra Roy were not
found entitled to the relief claimed.
7. The counsel for the petitioners has before us also contended that the
petitioners ought not to suffer owing to delay from the year 2001 to 2006 in
holding of the DPC. Reliance is placed on judgment dated 5 th October, 2009
of a Division Bench of this Court in W.P.(C) No.423-424/2006 titled Union
of India v. S.K. Thakral. Undoubtedly the Division Bench in para 13 of the
said judgment has observed that the Tribunal had not committed any error in
granting notional promotion to the respondent therein from the date of the
vacancy but we do not find any reasoning for the said observation. On the
contrary, the Division Bench in Rajendra Roy (supra), relying upon the
judgments of the Apex Court has held that promotion cannot be given from
the date of occurrence of vacancy and can only be granted from the actual
date after the panel has been prepared and approved by the Competent
Authority and that if it were to be otherwise, it would lead to an anamolous
situation that a retired person is given promotion from the date of occurrence
of vacancy, while a serving person is given promotion from the date of his
actual promotion.
8. We therefore are not persuaded to inspect the matter further for the
reason of stray observation in S.K.Thakral (supra) while refusing to
entertain the judicial review against the order of the Tribunal in that case.
We may notice that the Supreme Court in Uttaranchal Forest Rangers'
Association (Direct Recruit) v. State of U.P. JT 2006 (12) SC 513 and in
State of Uttaranchal v. Dinesh Kumar Sharma 2006 (13) SCALE 246 has
reiterated that a person cannot claim promotion from the date of occurrence
of vacancy and no retrospective effect can be given to order of appointment.
A Two Judge Bench of the Apex Court in K. Madhavan v. UOI 1987 SC
2291 held that if the meeting of the DPC scheduled to be held is arbitrarily
or mala fide cancelled without any reasonable justification therefor and to
the prejudice of an employee who is not considered for promotion to a
higher post, the government in a suitable case can do justice by granting him
promotion to the higher post for which the DPC was to be held, with
retrospective effect, however if the non holding of DPC is not arbitrary, the
employee concerned can have no grievance and the government will not be
justified in appointing the employee to the higher post with retrospective
effect. Another Division Bench of this Court in judgment dated 5 th
September, 2011 in W.P.(C) No. 2890/2011 titled UOI v. Mr. M.S. Tewari
also reversed the order of the Tribunal granting promotion to a retired
employee with retrospective effect holding that without a case of mala fide
or arbitrariness in holding of the DPC being made out such relief could not
have been granted.
9. We therefore do not find any error in the impugned order of the
Tribunal. There is no merit in the petition; the same is dismissed.
RAJIV SAHAI ENDLAW, J
ACTING CHIEF JUSTICE
DECEMBER 7, 2011
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