Delhi High Court
Uoi & Ors. vs Misri Lal on 18 April, 2013
Author: Pradeep Nandrajog
$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : April 18, 2013
+ W.P.(C) 678/2012
UOI & ORS. ..... Petitioners
Represented by: Mr.R.V.Sinha, Advocate with
Mr.R.N.Singh, Advocate
versus
MISRI LAL ..... Respondent
Represented by: Mr.Sunil K.Jha, Advocate with Mr.Ashish
Kumar Mahor, Advocate.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE V. KAMESWAR RAO
PRADEEP NANDRAJOG , J. (Oral)
1. On the subject of entitled to be retrospectively promoted,
reviewing various decision, being 10 in number pronounced by the Supreme
Court, and in respect of which a Division Bench of this Court was noticing
that different Benches of the Central Administrative Tribunal were reaching
different conclusion, on April 12, 2013 a Division Bench of this Court of
which Pradeep Nandrajog, J. was a Member of, had decided a batch of writ
petitions, lead matter being WP(C) No.8102/2012 UOI & Anr. vs.
K.L.Taneja & Ors. in which following decision were noted:-
(i) 1987 (4) SCC 566 K.Madhavan & Anr. vs.UOI & Ors.
(ii) 1989 Supp (2) SCC 625 Union of India & Ors. vs. K.K.Vadera
& Ors.
(iii) 1995 (4) SCC 246 Vinod Kumar Sangal vs.UOI& Ors.
(iv) 1998 (7) SCC 44 Baij Nath Sharma vs. Hon'ble Rajasthan
High Court At Jodhpur & Anr.
(v) AIR 2004 SC 255 P.N Premachandran vs. The State of Kerala
& Ors.
(vi) AIR 2004 SC 3460 Sanjay K.Sinha & Ors. vs. State of Bihar &
Ors.
(vii) 2006 (13) SCALE 246 State of Uttaranchal & Ors. Vs.Dinesh
Kr.Sharma.
(viii) 2007 (1) SCC 683 State of Uttaranchal & Anr. vs. Dinesh
Kumar Sharma.
(ix) 2008 (14) SCC 29 Nirmal Chandra Sinha vs. UOI & Ors.
(x) 2010 (4) SCC 290 UOI & Anr. vs.0 Hemraj Singh Chauhan &
Ors.
2. We had held that the cornucopia of case law above noted brings
out the position :-
(i) Service Jurisprudence does not recognize retrospective promotion i.e. a
promotion from a back date.
(ii) If there exists a rule authorizing the Executive to accord promotion from
a retrospective date, a decision to grant promotion from a retrospective date
would be valid because of a power existing to do so.
(iii) Since mala fides taints any exercise of power or an act done, requiring
the person wronged to be placed in the position the person would find
himself but for the mala fide and tainted exercise of power or the act,
promotion from a retrospective date can be granted if delay in promotion is
found attributable to a mala fide act i.e. deliberately delaying holding DPC,
depriving eligible candidates the right to be promoted causing prejudice.
(iv) If due to administrative reasons DPC cannot be held in a year and there
is no taint of malice, no retrospective promotion can be made.
3. Thus, the issue of retrospective promotion has to be decided by
looking at the applicable promotion rules, for if such a power exists, the
issue would reach a different destination vis-a-vis a destination reached if no
such power exists. Further, facts would have to be seen which led to DPCs
not being held each year.
4. In the instant case we find pleadings to be deficient. We are
surprised that without where being proper pleadings before it, the Tribunal
has decided the matter. If there are deficient pleadings, it is the duty of the
Tribunal to seek clarification from the parties.
5. Permitting the parties to file supplementary pleadings
disclosing facts having a bearing as to what resulted in DPCs not being held
within time, as also to bring on record the relevant promotion rules, we
dispose of the writ petition quashing the impugned order dated October 14,
2011. We restore O.A.No.2979/2010 with a direction that the same shall be
re-decided keeping in view the law declared by this Court on April 12, 2013
in WP(C) 8102/2012.
6. No costs.
7. DASTI.
CM No.1466/2012 (stay)
Dismissed as infructuous.
(PRADEEP NANDRAJOG)
JUDGE
(V. KAMESWAR RAO)
JUDGE
APRIL 18, 2013
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