Devender Kumar Gupta vs Delhi Transport Corporati0N
2013 Latest Caselaw 1246 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                          Date of Decision: March 13, 2013
+                   W.P.(C) 2417/2012

       DEVENDER KUMAR GUPTA                    ..... Petitioner
                    Through: Mr.A.K.Mishra and Mr.Ajay Tiwari,
                    Advocates.
               versus

       DELHI TRANSPORT CORPORATI0N              ..... Respondent

Through: Mr.Sarfaraz Khan, Advocate.

CORAM:

HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE PRATIBHA RANI

PRATIBHA RANI, J (Oral)

1. This writ petition is directed against the order dated 28.03.2012 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as the Tribunal) whereby Original Application No.921 of 2012 filed by the petitioner was dismissed.

2. The cadre posts under DTC are : Hindi (Translator) > Office Superintendent (Hindi) > Manager (Hindi).

3. One Ram Avtar Sharma was working as Office Superintendent (Hindi). He was fighting a battle to be promoted to the post of Manager (Hindi). He succeeded and obtained promotion with retrospective effect by order of the Central Administrative Tribunal in TA No.559/2009. It raised a hope for the petitioner to seek promotion to the post of Office Superintendent (Hindi), which he did but with current date. He claimed a

right to be promoted with retrospective effect i.e. from the date Ram Avtar Sharma earned retrospective promotion.

4. In the hope of getting promotion with retrospective effect as in the case of Sh.Ram Avtar Sharma, the present petitioner tried his luck by filing OA No.921/2012. As the legal position did not favour the present petitioner, by well reasoned order, the Tribunal dismissed the OA at the admission stage. The legal position though explained by the Tribunal in the impugned order, the petitioner did not hesitate to try his luck again invoking writ jurisdiction of this Court.

5. First of all, it is necessary to mention the circumstances, distinguishing his case from that of Sh.Ram Avtar Sharma. In TA No.559/2009, relief was granted to Shri Ram Avtar Sharma for the reason that minutes of the meeting relating to his promotion were duly approved by the CMD, who is the highest authority in DTC, for promoting him as Manager (Hindi). The direction given by the Tribunal was limited to the extent that Applicant be promoted w.e.f. from the date of his eligibility as per the DPC minutes, approved by the CMD. It is not the case of the petitioner that at any point of time he was ever considered to be promoted as OS (Hindi).

6. The Tribunal declined the claim of the petitioner to have promotion with retrospective effect from the date of vacancy. While distinguishing the case of the petitioner from that of Ram Avtar Sharma, the petitioner in T.A.No.559/2009 and placing reliance on the decisions of this Court in Union of India vs. Vijender Singh & others W.P.(C) No.1188-90/2005 and Union of India vs. Rajender Kumar, W.P.(C) No.2110/2010, the O.A. was dismissed at the admission stage.

7. It is undisputed that the petitioner was promoted to the post of O.S. (Hindi) on 15.11.2011. However, the petitioner claimed his right to be promoted with effect from the date when the vacancy accrued on promotion of Ram Avtar Sharma as Manager (Hindi) on 17.08.2010 on the strength of order of the Tribunal in T.A.No.559/2009. Not only that, the petitioner is also staking his claim to the post of Manager (Hindi) with effect from 01.02.2012 by just putting in service for less than 5 months in the feeder cadre i.e. O.S. (Hindi).

8. The question which falls for determination is as to whether the petitioner is entitled to claim promotion with retrospective effect from the date the vacancy accrued and also eligible to be considered for the post of Manager (Hindi) as on 01.02.2012 without earlier not being considered and promoted as O.S. (Hindi) till he was actually promoted on 15.11.2011.

9. This aspect has been deliberated upon by the Apex Court in the case of Nirmal Chandra Sinha vs. Union of India (2008) 14 SCC 29. In Nirmal Chandra's case (supra), the appellant Nirmal Chandra Sinha though promoted on 19.11.1996, claimed deemed promotion retrospectively from 13.03.1996 with consequential benefits including seniority. The Original Application filed by him was dismissed by the Tribunal, but the writ petition filed by him was partially allowed by the High Court resulting in filing of appeals not only by the appellant Nirmal Chandra Sinha but also by the Union of India. While disposing of both the appeals, the Supreme Court observed that the appeal filed by the appellant deserved to be dismissed and that filed by the Union of India deserved to be allowed. The Supreme Court also considered that the decision in Union of India vs. B.S.Agarwal was in the special circumstances on humanitarian ground, thus distinguishable in

the facts and circumstances of the case. The observations made by the Supreme Court in this regard are 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 Ors. v. K.K. Vadera and Ors. AIR1990SC442 , State of Uttaranchal and Anr. v. Dinesh Kumar Sharma 2006(13)SCALE246, K.V. Subba Rao v. Government of Andhra Pradesh [1988]2SCR1118 , Sanjay K. Sinha and Ors. v. State of Bihar and Ors. AIR2004SC3460 etc.

8. Learned counsel for appellant Nirmal Chandra Sinha, however, relied on a decision of this Court in Union of India v. B.S. Agarwal and Anr. AIR1998SC1537 . We have carefully perused the decision and we are of the opinion that the said decision is distinguishable. In that case the facts were that, under the relevant rule for promotion as General Manager it was necessary to have at least two years' tenure on the lower post. The respondent did not actually have two years' tenure, yet this Court held that he was eligible for promotion since he had been empanelled and the vacancy on which he should be promoted had occurred before two years of his consideration for promotion.

9. In our opinion, the aforesaid decision in Union of India v. B.S. Agarwal (supra) was given on the special circumstances of that case and on humanitarian considerations, but it cannot be said to be a precedent for other cases. When the rule requires two years' actual service in the lower post before a person can be considered for promotion as General Manager, that rule cannot be violated by considering a person who has not put in two years' service in the lower post. Moreover, in the aforesaid decision in Union of India v. B.S. Agarwal (supra), the respondent had not actually been promoted as General Manager, but he only claimed that he was eligible to be considered for promotion as General Manager. This fact also makes the aforesaid decision distinguishable.

10. In the present case, appellant Nirmal Chandra Sinha was promoted as General Manager on 29.11.1996, but he claims that he should be deemed to have been promoted w.e.f. 13.3.1996 with consequential benefits. We are afraid this relief cannot be granted to him. It is settled law that the date of occurrence of vacancy is not relevant for this purpose.

10. Learned counsel for the petitioner has not been able to refer to any Rule under which or residual power in exercise of which claim of the

petitioner for grant of promotion with retrospective effect i.e. from the date when the vacancy accrued, could be supported. Since the benefit of promotion accrues only from the date of actual promotion, which in the case of petitioner is with effect from 15.11.2011, the Tribunal rightly held that by putting in less than 5 months service as O.S. (Hindi), the petitioner did not become eligible to be considered for promotion as Manager (Hindi) as on 01.02.2012. The promotion has to be effective from the date when it is made and not from the date when the vacancy accrues, unless there is some residual power vested in the authority is shown or some Rule contrary to the same is brought to the notice of the Court.

11. Thus, promotion of Shri Ram Avtar Sharma with effect from 23.02.2004 and consequent accrual of vacancy with effect from 24.02.2004 does not entitle the petitioner to seek promotion for the post of O.S. (Hindi) with effect from the date of vacancy.

12. For the reasons stated hereinabove, we do not find any illegality or infirmity in the impugned order passed by the Tribunal. The writ petition is devoid of any merit and the same is hereby dismissed with no order as to costs.

(PRATIBHA RANI) JUDGE

(PRADEEP NANDRAJOG) JUDGE MARCH 13, 2013/'dc'