Union Of India & Anr. vs B.P.Gairola & Ors.
2014 Latest Caselaw 3496 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                      Date of Decision: 04.08.2014

%                        W.P.(C.) No. 6708/2013

      UNION OF INDIA & ANR.
                                                            ..... Petitioner
                         Through:    Mr. R.V. Sinha, Mr. R.N. Singh and
                                     Mr. A.S. Singh, Advocates

                         versus

      B.P. GAIROLA & ORS
                                                          ..... Respondent

Through: Mr. Rajesh Katyal, Advocate

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE VIPIN SANGHI

S. RAVINDRA BHAT, J. (OPEN COURT)

1. The petitioner/Union of India (UOI) claims to be aggrieved by an order of the Central Administrative Tribunal (CAT/ Tribunal) dated 14.05.2013 in O.A. No. 2853/2012. The Tribunal had directed retrospective promotion of the first respondent/applicant with effect from the date the vacancy occurred in the cadre of Area Organiser for the year 2011-12.

2. The undisputed facts are that the respondent employee initially joined the UOI as Circle Organiser in Group B gazetted executive cadre post on 19.11.1985. He was subsequently promoted on the basis of seniority to the rank of Joint Area Organiser with effect from 01.04.2008.

3. In the meanwhile, the existing rules promulgated under proviso to Article 309 of the Constitution were de-notified sometime in 2007. This led to litigation before the CAT, which by its order dated 05.01.2010 (in Bakhtawar Singh v. Cabinet Secretary - O.A. No.2104/2009) quashed/set aside the de-notification, with a further direction to consider the claims of the applicants before it in those proceedings for further promotion.

4. In compliance, the UOI on 27.04.2010 withdrew the de-notification order of 16.07.2007. It subsequently promoted several individuals by an order dated 12.12.2011 as Joint Area Organiser. Yet later, by an order dated 20.01.2012 in compliance with another order of the Tribunal, notional promotional benefit was given to the first respondent with effect from 01.04.2008 in the grade of Joint Area Organiser.

5. The first respondent/applicant superannuated on 30.04.2012. On 04.07.2012, the departmental promotion committee considered the cases of officers eligible for promotion to the post of Area Organiser. The rules required, as an eligibility condition, two years experience in the cadre of Joint Area Organiser.

6. Acting upon an office memorandum of Department of Personnel and Training (DOPT) dated 12.10.1998, the names of all eligible applicants who fell within the zone of consideration, including those who retired as on the date of consideration were taken into account. The respondent's name was thus considered. However, on an application of the same office memorandum, the promotion or promotional benefits arising out of the notional orders was denied to him. It was in these circumstances that the

respondent/applicant approached the Tribunal stating that since the vacancies had arisen for the period 2011-2012, his claim for notional promotion had been overlooked and that he should be granted such benefits.

7. Before the Tribunal, the respondent/applicant relied upon three instances- one of Sh. Sarat Adhikari (who was given the post of Area Organiser on 07.08.2012), and the others, Sh. R.C. Sharma and Sh. R.D. Thakur. It was submitted that these three individuals were in the same situation as the respondent, inasmuch as they had superannuated or retired as on the date of consideration by DPC, but were nevertheless extended the benefit of promotion. The Tribunal, by its impugned order, allowed his claim and directed that he ought to be granted promotion with effect from the date the vacancy arose.

8. It is argued on behalf of the UOI that the Tribunal could not have overlooked the contents of the office memorandum, which specifically forbids the authorities from granting retrospective or notional promotion from a date anterior to what is recommended. Counsel for the UOI argued that unless the rules or regulations support the grant of such benefits with effect from an anterior date or the date of occurrence of vacancy, the benefit is inadmissible. The petitioner relies upon three judgments of the Division Bench of this Court -reported as Union of India v. Rajendra Roy, 2007 (1) ILR (Del) 378; Union of India v. R.N. Malhotra, 2012 (191) DLT 449, and Union of India v. K.L. Taneja & Anr., 2013 (1) ADR 530.

9. It is argued that in these decisions, the Division Benches had considered the effect and purport of the 12.10.1998 circular as well as the binding rulings of the Supreme Court in Union of India v. K.K. Vadera &

Ors., 1989 Suppl. (2) SCC 625; and Baij Nath Sharma v. Rajasthan High Court, (1998) 7 SCC 44.

10. Learned counsel for the respondent urges that there is no unalterable principle that retrospective promotion (in the sense of conferment of notional benefit from an anterior date) should be denied. If good and valid reasons are established before a Court or Tribunal, such benefit should be granted. Stipulations to the contrary cannot be binding, and have to be disregarded. He highlighted that the UOI was at fault in the first place in de- notifying the rules in 2007. Subsequently, after a long battle for three years, that notification was quashed. Recognising the injustice meted out or flowing from its action, notional promotions were granted in the cadre of Joint Area Organiser with effect from retrospective date i.e. when the vacancy arose. The same principle would be applicable for the higher post as Area Organiser. He also relied upon the judgment of the Supreme Court in Maj. Gen. H.M. Singh, VSM v. Union of India & Anr., JT 2014 (1) SCC 465, and Punjab and Haryana High Court's decision reported as Chaman Lal Lakhanpal v. Union Public Service Commission, 1998 (3) SLR 436.

11. The office memorandum of 1998 to the extent relied upon by the UOI reads as follows:

"Procedure to be followed by the Departmental Promotion Committees in regard to retired employees -

2. Doubts have been expressed in this regard as to the consideration if employees who have since retired but would also have been considered for promotion, if the DPC(s) for the relevant year (s) had been held in time.

3. The matter has been examined in consultation with the Ministry of Law (Department of Legal Affairs). It may be pointed out in this regard that there is no specific bar in the aforesaid Office Memorandum, dated April 10, 1989 or any other related instructions of the Department of Personnel and Training for consideration of retired employees, while preparing yearwise panel(s), who were within the zone of consideration in the relevant year(s). According to the legal opinion also, it would not be in order, if eligible employees, who were within the zone of consideration for the relevant year(s) but are not actually in service when the DPC is being held, are not considered while preparing yearwise zone of consideration/panel and, consequently, their juniors are considered (in their places) who would not have been in the zone of consideration, if the DPC(s) had been held in time. This is considered imperative to identify the correct zone of consideration for relevant year(s). Names of the retired officials may also be included in the panel(s). Such retired officials would, however, have no right for actual promotion. The DPC(s), may, if need be, prepare extended panel(s) following the principle prescribed in the Department of Personnel and Training. OM No. 22011/8/87-Estt.(D), dated 09.04.1996".

12. This Court in Rajendra Roy (supra) and subsequently in R.N. Malhotra (supra) had the occasion to deal with the same office memorandum. The Division Bench on both the occasions applied the law declared by the Supreme Court in K.K. Vadera (supra) and Baij Nath Sharma (supra). We notice that in K.L Taneja (supra) too, an identical issue was involved, i.e. claim for retrospective promotion. While

summarising the law in para 21, the Court stated that it is only if a rule supports the grant of retrospective promotion, that it is admissible and can be claimed. The exceptions to this principle are if a rightful claim of an officer or public servant is denied at the relevant time and his juniors in the cadre are given promotion, or he is able to plead and prove malafide in the given facts of the case.

13. The facts of the present case point out that, no doubt between 2007 and 2010, there was a controversy as to the legality of the de-notification of the Recruitment rules. This ultimately resulted in the UOI accepting the Tribunal's order and issuing a consequential notification restoring the rules in 2010. Due to this stalemate, promotions to the post of Area Organisers were held up. Thereafter, a review of various administrative actions including promotion that ought to have been made, but could not be made on account of the de-notification, was undertaken. The petitioner was given the benefit with effect from 01.04.2008, and he was promoted to the post of Joint Area Organiser.

14. Having regard to these facts, a mere circumstance that there was some delay - perhaps of a few months, in the constitution of the DPC to consider and recommend the eligible names of officers to the post of Area Organiser ipso facto would not constitute malafide. This Court has examined the pleadings before the Tribunal; no specific instances were highlighted as to why the respondent/applicant was allegedly singled out to be deprived of due consideration, or why the DPC was delayed, allegedly intentionally to deprive him the benefit of promotion.

15. As far as allegations of undue favour being shown to the other officers

and employees are concerned, we notice that in two instances i.e. in the cases of Sh. Sarat Adhikari (the applicant in O.A. No.1712/2011) and Sh. R.D. Thakur (the applicant in O.A. No..2104/2009), the relief was granted on account of the Tribunal's order. Those orders of the Tribunal are also before the Court. They are essentially unreasoned and have not taken into account the circular/office memorandum dated 12.10.1998. As far as the instance of Sh. R.C. Sharma is concerned, this Court notices that in reply to para 4.15 of the Original Application, the UOI had stated that since juniors had been given the promotion while he was in service, he could not be denied that benefit. These aspects have not been contradicted anywhere in the pleadings. As a result, it is held that the respondent/applicant's reliance on the above instances is of no avail.

16. In the light of the above discussion and especially in the light of the law declared in K.K. Vadera (supra) and Baij Nath Sharma (supra) as noticed consistently by the three Division Bench ruling of this Court, the present petition has to succeed. The present writ petition is, accordingly, allowed. The impugned order is, therefore, set aside. Parties are left to bear their respective costs.

S. RAVINDRA BHAT, J

VIPIN SANGHI, J.

AUGUST 04, 2014 sr