Delhi High Court
Union Of India & Anr. vs S.C. Surliya & Ors. on 16 October, 2012
Author: Badar Durrez Ahmed
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 16.10.2012
W.P.(C) 1293/2011
UNION OF INDIA & ANR. ..... Petitioners
versus
S.C. SURLIYA & ORS. ..... Respondents
Advocates who appeared in this case:
For the Petitioners : Mr R.V.Sinha and Mr A.S.Singh.
For the Respondents : None.
CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
JUDGMENT
BADAR DURREZ AHMED, J (ORAL)
1. This writ petition is directed against the order dated 31.08.2010 passed
by the Central Administrative Tribunal, Principal Bench, New Delhi in TA
No.1049/2009.
2. The respondent joined as a Junior Engineer with the Department of
Telegraph on 06.10.1978. He was a diploma holder and not a graduate in
engineering. Subsequently, pursuant to a DPC meeting held on 24.08.1994,
the said respondent was promoted as an Assistant Engineer (Civil) on a
regular basis w.e.f. 31.08.1994.
3. It may be pointed out that in the meanwhile, on 06.08.1994, the
recruitment rules in respect of Executive Engineer (Civil) were amended and
it had become mandatory for the Assistant Engineers to have possessed a
degree in engineering for consideration for promotion to the post of
Executive Engineer (Civil). However, the said amendment brought out in the
recruitment rules on 06.08.1994 carried a note to the following effect:-
"Note: However, the existing incumbents holding the post
of Assistant Engineer (Civil) on a regular basis on the date of
notification of these rectt. rules shall continue to be eligible
for promotion to the post of Executive Engineer if they
possess a Diploma in Civil Engg. from a recognized
University/Institution or equivalent and 8 years regular service
in the grade."
4. It is apparent that the amended recruitment rules for promotion to the
post of Executive Engineer (Civil) which made the possession of a graduate
degree in engineering mandatory did not apply to existing incumbents
holding the post of Assistant Engineer (Civil) on a regular basis on the date
of the notification.
5. Since the respondent did not hold the post of Assistant Engineer
(Civil) on a regular basis as on 06.08.1994, which is the date of the
notification, the respondent was not considered for promotion to the post of
Executive Engineer (Civil). The grievance of the respondent is that the
vacancy for the post of Assistant Engineer (Civil) to which he was appointed
on a regular basis on 31.08.1994, had arisen prior to 06.08.1994 and,
therefore, he ought to have been promoted as Assistant Engineer (Civil) prior
to 06.08.1994, that is, when the vacancy, according to him, arose.
6. Mr Sinha appearing on behalf of the petitioner submitted that it is not
correct that the vacancy arose prior to 06.08.1994. However we need not go
into that aspect of the matter at all in view of the clear position as laid down
by the Supreme Court in Union of India vs. K.K.Vadera, 1989 Supp (2)
SCC 625 and Nirmal Chandra Sinha vs. Union of India & Ors., 2008 14
SCC 29. The latter decision makes it absolutely clear that the promotion
takes effect from the date on which it is granted and not from the date of the
occurrence of the vacancy or creation of the post. In Nirmal Chandra Sinha
(supra) the Supreme Court observed as under:-
"7. It has been held in a series of decisions of this Court
that a promotion takes effect from the date of being granted
and not from the date of occurrence of vacancy or creation of
the post vide Union of India and Others vs. K.K.Vadera and
others 1989 Supp (2) SCC 625, State of Uttaranchal and
another vs. Dinesh Kumar Sharma 2007 (1) SCC 683,
K.V.Subba Rao vs. Government of Andhra Pradesh 1988 (2)
SCC 201, Sanjay K. Sinha & others vs. State of Bihar and
others 2004 (10) SCC 734 etc."
7. Therefore the question as to when the vacancy arose would not be
relevant at all. What is to be seen is when the DPC was held and when the
petitioner was promoted to the post of Assistant Engineer (Civil). As
mentioned above, the DPC was convened on 24.08.1994 and the respondent
was promoted as Assistant Engineer (Civil) on a regular basis on 31.08.1994.
Both these dates are after 06.08.1994 and, therefore, the respondent cannot
take any advantage of the note appended to the notification dated 06.08.1994
because on that date he was not an Assistant Engineer (Civil) on regular
basis.
8. In view of the foregoing discussion, the Tribunal's order cannot be
sustained and the same is set aside. The writ petition is allowed. There shall
be no order as to costs.
BADAR DURREZ AHMED, J
SIDDHARTH MRIDUL, J
OCTOBER 16, 2012/mk
