Delhi High Court
Jasbir Singh Gill vs Union Of India & Ors on 12 September, 2014
$~3
*IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C)No.947/2013
Reserved on 29th August, 2014
Date of Decision: 12th September, 2014
JASBIR SINGH GILL ....Petitioner
Through : Mr. R.K. Saini, Adv.
VERSUS
UNION OF INDIA & ORS. ....Respondents
Through: Mr. Sumeet Pushkarna, CGSC
with Mr. Jasmeet Singh, Adv.
.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MS. JUSTICE DEEPA SHARMA
GITA MITTAL, J
1. By way of the instant writ petition, the petitioner challenges the action
of the respondents in rejecting the recommendations of the Departmental
Promotion Committee („DPC‟hereafter) with regard to the petitioner for
promotion to the post of Additional Director General of the Central Reserve
Police Force after relaxation of the prescribed residency period and thereafter
approving similar recommendations in identical circumstances of a later DPC,
after the retirement of the petitioner on superannuation, and granting
promotion to the said junior even though the requisite relaxation in the case
was for a period longer than that required by the petitioner. The petitioner is
aggrieved by the denial of promotion to the said post on the ground that the
deprivation was effected in an illegal, arbitrary, discriminatory and unjust
manner and that the action reflected bad faith on the part of the respondents.
The petitioner has prayed for grant of said promotion with retrospective effect
contending that the same would not have affected the later promotion to his
junior as the petitioner has since superannuated from service.
2. We have heard Mr. Rakesh Saini, Advocate for the petitioner and Mr.
Sumeet Pushkarna, Standing Counsel for the Central Government extensively
in the matter who took us through the record.
3. The facts giving rise to the instant writ petition are within the narrow
compass and are briefly noted hereafter.The petitioner joined the Central
Reserve Police Force („CRPF‟hereafter) on the 11th September, 1972 as a
Deputy Superintendant of Police. After a meritorious and decorated service,
he came to be promoted on 1st of May, 2010 to the rank of the Inspector
General of Police („IGP‟).
4. It is an admitted position before us that on the 1st of April, 2011, the
petitioner was the senior most officer in the CRPF and was eligible for
promotion for cadre officers to the next higher post of Additional Director
General (ADG) against the vacancy for the year 2011 and 2012.
5. The recruitment rules for promotion to the post of Additional Director
General prescribed the following:
(11) (12)
i) 66.2/3% by deputation by promotion :
from Indian Police officers of the rank of
Service. inspector general (in Pay
Band - 4 : 37400 - 67000
ii) 33.1/3% by Grade Pay Rs.10000) in the
promotion from the Central Reserve Police
Central Reserve Police Force with thirty years of
Force Cadre. Group 'A' service out of
which at least three years
service should be in the rank
of Inspector General.
(Emphasis supplied)
Thus the rules for promotion to the post of Additional Director General
required 30 years Group - A service out of which three years should be in the
rank of Inspector General of Police as the eligibility condition. The period of
three years in the rank of Inspector General of Police is referred to as the
„residency period‟.
6. It is pointed out that for the year 2011-2012, three officers, namely,
Shri Srikant, Inspector General of Police, the present petitioner J.S. Gill and
Shri A. Punnuswamy were eligible for promotion to the rank of the
Additional Director General. The respondent no.3 however forwarded only
the name of Shri Srikant.
7. The Department of Personnel and Training („DOP&T‟ hereafter) vide
its Memo No.22011/9/98/Estt.(D) dated 8th September, 1998 had prescribed a
model calendar for Departmental Promotion Committee („DPC‟ hereafter)
prescribing that the process of the DPC has to start at least six months before
actual start of the vacancy year. As per this schedule, for the year 2011-2012,
process should have started by the 15th of July, 2010.
8. It is on record that the process was started timely only for Shri Srikant,
Inspector General of Police who was granted relaxation of the six months in
the requirement of the residency period. The DPC was held in the month of
December, 2010 and he came to be empanelled as Additional Director
General on the 15th of February, 2011. Shri Srikant was promoted as
Additional Director General on the 1st of April, 2011 which was the very date
on which the post was vacant. Shri Srikant also retired on the 30th of
September, 2011.
9. On the 1st of October, 2011, a vacancy arose for the post of Additional
Director General on account of superannuation of Shri Srikant on 30 th
September, 2011. By this date, the petitioner had completed one year five
months service as Inspector General of Police.
10. This post was kept vacant till 22nd March, 2012, while the petitioner
was permitted to retire on the 31st of January, 2012.
11. Despite the vacancy on the 1st of October, 2011 on the retirement of
Shri Srikant, which fact was known well in advance to the respondents, no
action was taken till the petitioner was compelled to make a representation
dated 25th of March, 2011 with regard to relaxation of the residency period for
his consideration. The petitioner pointed out the aforesaid instances to the
respondents wherein relaxation in the residency period had been granted.
Applicable CRPF Group A (GD) Officer Recruitment Rules, 2010
empowered the Central Government to relax the provision of the rules with
respect to any class or category of persons.
12. The petitioner had also placed several awards received by him
supporting his merit. It was pointed out that promotion to the rank of
Inspector General of Police is earned at the fag end of service after rendering
more than 35 years of service and that it was not possible to complete the
residency period as promotion to the rank of Inspector General and if the
Cadre Controlling Authority does not recommend relaxation in residency
period of Inspector General for promotion to Additional Director General,
then no cadre officer upto the recruitment year 1983, would ever become
Additional Director General and the purpose of allowing promotion as ADG
to the cadre officers of the CRPF would be defeated.
13. On the 15th of April, 2011, the Director General of the CRPF requested
the Ministry of Home Affairs to obtain and to convey the approval of the
competent authority for according the relaxation in the residency period. It
was pointed out that, out of the five officers who fell in the zone of
consideration, four were retiring before the vacancy arising in the year 2011
and that the petitioner alone remained available for promotion. The Ministry
of Home Affairs, respondent no.1 however, unduly kept the matter pending.
The petitioner‟s request was not favourably considered on the ground that the
period of relaxation was rather long.
14. The respondent no.3 sent a second proposal to the respondents on the
9th of June, 2011 requesting the respondent no.1 to reconsider its decision
pointing out that the promotion to the rank of Additional Director General to
the cadre officer was a matter of great incentive and recommending the case
of the petitioner who was a brilliant and exceptional officer of the CRPF and
stating that his case be favourably considered for grant of the relaxation in the
residency period as a special case in view of the outstanding merit of the
officer.
15. The petitioner also submitted representations dated 8th of June, 2011
and 8th of October, 2011 in this regard which were of no avail.
16. The proposal of the Ministry of Home Affairs for relaxation in the
residency period to the petitioner was however rejected by the DOP&T
(respondent no.2 herein) on the 2nd of November, 2011 on the ground that the
petitioner had completed only eight months regular service in the grade as on
1st of January, 2011.
The petitioner makes a grievance that there was discrimination in action
qua him, as his case was not taken up in timely manner as well as in
consideration of the relaxation in the residency period.
17. On 1st of October, 2011, the petitioner needed relaxation in the
residency period of one year and seven months. This period was less than the
relaxation accorded to Shri P. Valsa Kumar and Shri A. Ponnuswamy.
18. The matter however did not end here. On 11th of November, 2011, the
respondent no.3 took up the case with the Ministry of Home Affairs
(respondent no.1) for amendment of the recruitment rules. This was further
taken up by the respondent no.1 with the respondent no.2. On the 19th of
December, 2011, respondent no.2 informed the respondent no.1 that its
proposal for amendment of the CRPF Group A (GD) Officer Recruitment
Rules, 2010 regarding the eligible service for promotion to the post of
Additional Director General may be amended. Finally by the notification
dated 28th of December, 2011, recruitment rules for the post of Additional
Director General were amended and it was required that instead of three years
of regular service in the Grade - A in the rank of Inspector General of Police,
requirement of only one year regular service in the rank of Inspector General
of Police was prescribed.
19. So far as petitioner was concerned, the respondent no.1 again referred
the case of the petitioner on 29th of December, 2011 to the respondent no.2 for
grant of relaxation, now for the period of four months in the residency period.
The respondent no.1 pointed out that despite the amendment in the rule
position, the petitioner who was the senior most Inspector General of Police
followed by Shri A. Punnuswamy who was junior to him. Unless relaxation
of four months was granted to the petitioner and of eight months to Shri A.
Punnuswamy, neither could ever be promoted to the post of Additional
Director General before their respective retirement dates and that there was a
strong case in their favour for consideration of relaxation of their cases.
20. Finally after a delay of almost nine months, the DOP&T, respondent
no.2 passed order dated 20th of January, 2012 according the relaxation to the
petitioner of one year and seven months in the residency period from the date
of occurrence of the vacancy on the 1st of October, 2011. It is noteworthy that
the respondent no.2 was still treating the eligibility requirement as being three
years of residency period. The DOP&T, respondent no.2 also directed
denotification of the amendment notified on the 28 th of December, 2011 in
consultation with the Ministry of Law. One essential fact which needs
bearing in mind was that the petitioner was to retire on the 31st of January,
2012 while Shri A. Punnuswamy was to on the 31st of March, 2012.
21. The DPC met on the 23rd of January, 2012 to consider the case of the
petitioner for promotion to the post of Additional Director General of CRPF
and recommended the name of the petitioner. The recommendations of the
DPC were sent to the respondent no.2 for approval.
22. On the 24th of January, 2012, the respondent no.1 had also approved the
recommendations of the DPC regarding the promotion of the petitioner to the
post of ADG. These recommendations were sent to the Appointments
Committee of the Cabinet („ACC‟ for brevity) for final approval. However,
no approval was received from the ACC till the petitioner superannuated on
the 31st of January, 2012.
23. The file remained pending in the ACC till 31st of January, 2012 (on
which date the petitioner superannuated). It was only on the 3 rd of February,
2012 that the Under Secretary intimated the rejection of the proposal of
respondent no.1 for empanelling the petitioner and Shri A. Punnuswamy for
promotion to the post of Additional Director General noting the following:
"i) xxx xxx xxx
ii) The ACC also observed that the relaxation agreed to by
the Dop&T taking into account the date of occurrence of
vacancy instead of taking the crucial date of eligibility was also
not in order.
iii) Moreover, the proposal was badly delayed and submitted
to the ACC when the officer was due to retire within a few days
leaving behind any scope for detailed examination of the case."
The petitioner was able to procure a copy of this communication on a
request made by him under the Right to Information Act from the authorities.
24. It is pointed out that after the petitioner retired, the respondent no.1
again took up the case of Shri A. Punnuswamy for relaxation in the residency
period. This time the DOP&T - respondent no.2 granted relaxation of two
years and eight months and one day from the 1st of January, 2011 which was
crucial.
25. The case was taken up on the 22nd of February, 2012 for the relaxation.
The DOP&T accorded the relaxation on the 27th of February, 2012 of the
residency period to Shri A. Punnuswamy. The DPC held on 1st of March,
2012 considered the candidature of Shri A. Punnuswamy for appointment as
Additional Director General. Even though Shri A. Punnuswamy was
scheduled to retire on the 31st of March, 2012, the ACC examined the
recommendations of the DPC and approved the appointment to Shri A.
Punnuswamy promoting him as Additional Director General on the 22nd of
March, 2012 itself.
26. Shri A. Punnuswammy superannuated from the service on the 31 st of
March, 2012. Neither the length of the period of relaxation of the residency
period, nor the date of his superannuation barely a week after his promotion
came in the way of appointment of Shri A. Ponnuswamy as ADG before the
authorities. Whereas the petitioner had required lesser relaxation of the
residency period, he was denied the same. The rules and circumstances qua
both of them on all relevant dates remained the same. The petitioner has
assailed his rejection inter alia on the grounds of rank arbitrariness and bad
faith.
27. The petitioner points out that so far as Shri A. Punnuswamy was
concerned, the entire process from holding the DPC to the recommendations
by the Ministry of Home Affairs as well as the consideration by the ACC was
completed in 11 days and that Shri A. Punnuswamy retired as Additional
Director General on the 31st of March, 2012. On the other hand, in the case of
the petitioner, the matter was unduly and unreasonably delayed by the
respondents at every stage.
28. It is pointed out that the case for relaxation of the residency period was
not taken up as per the DOP&T circulars and guidelines whereas in the case
of Shri Srikant, the relaxation was accorded on 15 th October, 2010 many
months before the 1st of April, 2011 when the vacancy of Additional Director
General fell due. We are hereunder extracting the tabulation placed by the
petitioner before us which manifests the rank arbitrariness in the proceedings
of the respondents and the discrimination met out by the petitioner:
S.No. Name of Date of Date of Date of Date of
officer according DPC approval by promotion as
relaxation ACC ADG
1. Sh. Shrikant 15.10.2010 16.12.2010 15.02.2011 01.04.2011
(case taken (exactly on
up for first day of
relaxation vacancy year)
many months
in advance)
2. Petitioner 20.01.2012 23.01.2012, Not DPC
approved approved till proceeding
by HM on his not approved
24.01.2012 superannuati by ACC as
on on intimated on
31.01.2012 03.02.2012
3. Sh. A. 27.02.2012 11.03.2012 22.03.2012 22.03.2012
Punnuswamy (case taken
up on Retired on
22n.02.2012 31.03.2013
by MHA for
relaxation)
29. The petitioner had thus retired as IGP on 31 st of January, 2012 without
being granting promotion as ADG. He made a representation to the Secretary
of the MHA with a request that his case be taken up with the ACC as he
fulfilled all eligibility conditions on the date of the DPC till proceedings of
officers who were promoted from back date even after retirement.
30. It appears that on 27th of February, 2012 DoP&T approved the MHA
approval for grant of relaxation in the residency period for the post of ADG
and also denotified the notification dated 28th of December, 2011 in
consultation with the Ministry of law. On the 22nd of March, 2012, Shri A.
Punnuswamy was promoted as ADG of the CRPF granting him relaxation of
two years and eight months in the residency period while the DPC held on
11th of March, 2012.
31. The petitioner had filed earlier WP(C)No.2847/2012 in this court. Vide
an order dated 14th of May, 2012, this writ petition was dismissed as
withdrawn in order to enable the petitioner to pursue other remedy and
thereafter leaving it open to the petitioner to raise all questions including
those raised in that petition if so advised at later stage. On 16 th of December,
2012, the petitioner made a detailed representation to the respondent pointing
out that all cadre officers became eligible for promotion only after giving
relaxation in the residency period and that the petitioner was the only officer
who was denied such promotion. After calling for the comments of the
DoP&T on this representation, the respondent no.1 rejected the same on the
2nd of November, 2012 submitting inter alia on the ground that the ACC did
not accept the recommendations of the DPC.
32. The respondents do not dispute the impeccable distinguished record of
service of the petitioner on the above facts. In fact, the respondent no.3 has
repeatedly recommended the petitioner‟s case for accord of relaxation of the
residency period as well as his case for appointment.
33. It is noteworthy that on the 3rd of February, 2012, the ACC had
considered and rejected the cases of both the petitioner as well as Shri A.
Punnuswamy. No circumstance had changed between then and 22 nd March,
2012 when Shri A. Punnuswamy was promoted as Additional Director
General (CRPF) by the ACC. We therefore find substance in the petitioner‟s
contention that there was arbitrariness and discrimination in denying the
appointment to the post of Additional Director General to the petitioner even
though his empanelment and appointment was recommended by the DPC as
well as Ministry of Home Affairs.
34. Mr. R.K. Saini, learned counsel for the petitioner has placed reliance on
the DOPT Memo No.22011/4/98/Estt.(D) dated 12th October, 1998 to submit
that retired officers are also required to be included in the panel when the
DPC could not be held for the year(s) even though vacancy arose during the
year(s). There is no dispute that there are instance when retired officers have
been empanelled after retirement and given pension and other retiral benefits.
35. The petitioner has placed before this court, minutes of the
Supplementary Promotional Committee which was convened on 5 th of March,
2012. This meeting was held in the chamber of the Home Secretary (MHA)
to consider the cases of Inspector Generals‟ for promotion as Additional
Director Generals‟ in the CRPF to draw a second panel for vacancy of
Additional Director General which arose on 1st of October, 2011 for the
vacancy year 2011-2012. So far as the consideration by the supplementary
DPC are concerned, it was noted as follows:
"5. Under DoP&T‟s instructions, zone of consideration for
One vacancy But none of the serving officers has completed 3
years service in the rank of IGP as on 01/01/2011. However,
following 02 senior most officers in the feeder grade are
otherwise eligible (having completed 30 years of Group - „A‟
service) short of the residency period as on 01/01/2011 by 2
years and 04 months and 2 years 8 months and 1 day
respectively, according to theri date of promotion as IG as per
details mentioned against each:-
Sl.No Name Date of
Date of Date of Residency Shortfall
Joining promotion superannuation period in
Group- Aas IG completed residency
service period
1. J.S. Gill 11.09.1972
01/05/2010 31/01/2012 08 2 years
months and 04
months.
2. A. 16.10.1973 02/09/2010 31/03/2012 03 2 years, 8
Ponnuswamy months months
and 20 and 1
days. day
6. DoP&T considered the case of both the above officers
and have vide their ID No.AB.14017/13/2012-Estt.(RR) dated
20.01.2012 has granted the requisite relaxation in residency
period to Shri J.S. Gill. Furthermore, DoP&T vide their ID
No.AB14017/13/2012-Estt (RR) dated 27.02.2012 has gratned
the requisite relaxation in residency period to Shri A.
Ponnuswamy. Accordingly, both the said officers are eligible
for being considered for promotion to the rank of Addl. Director
General in terms of the CRPF Group „A‟(General Duty) officers
Recruitment Rules, 2010 and vide their ID note dated
27/02/2012 have accorded relaxation in the residency period by
two years, eight months and one day as on 01/01/2011 to Shri
A. Ponnuswamy, IG. Thus the officer has become eligible for
consideration for promotion from IG to the rank of Addl. DG."
36. The cases of both the eligible officers were considered and they are
graded as under:
SL.No. IRLA NAME MEDICAL ASSESSMENT
CATEGORY
1. 1058 J.S. Gill SHAPE-1 Fit
(12/08/2011)
2. 1203 A. Poonuswamy SHAPE-1 Fit
(20/01/2012)
37. After so noting, this supplementary DPC made the following
recommendations:
"12. Keeping in view of the bench mark grading, the DPC
recommends that Shri J.S. Gill IG may be brought on panel for
promotion to the rank of Addl. DG for the vacancy year 2011-
12. However, since Shri J.S. Gill, IG has already,
superannuated w.e.f. 31/01/2012 in pursuance of DoP&T OM
No.22.11/8/87-Estt (D) Dated 09/04/1996, the DPC
recommends that the Shri A. Poonuswamy officer may be
brought on extended panel to till up the vacancy of Addl. DG,
CRPF which arose on 01.10.2011."
38. It is submitted by the petitioner that the respondent no.1 was bound to
have included the petitioner‟s name for empanelment having been declared
fit, he was entitled to be given notional promotion till his retirement; fixation
of his terminal dues, pension and retiral benefits for the said post.
Mr. R.K. Saini, learned counsel has placed before this court a judgment
dated 19th July, 2010 passed in WP(C)No.635/2005 in the case of Dr. K.K.
Saini v. Union of India & Another (page 165). In this case the petitioner
was promoted to the post of Additional Director General (Medical) after his
superannuation from the back date. The respondents do not dispute that this
pronouncement has attained finality. In this case also there was no denial or
objection to the petitioner‟s eligibility for appointment to the post in question
on the date when his consideration was deferred on the ground that
recruitment rules were not in place and the respondent no.3 was directed to
forthwith convene a Departmental Promotion Committee for consideration of
the petitioner for promotion to the post of Additional Director General
(Medical) in the Central Police Forces within four weeks, having regard to the
seniority and other relevant conditions as subsisted on 16 th December, 2004.
It was further directed that if the name of the petitioner is recommended, the
consequential orders and action in the matter shall be taken expeditiously.
We are informed that these directions have been complied with and Dr.
Saini has since been promoted as Additional Director General (Medical) from
the back date and has received all retiral benefits for the said post.
39. The petitioner has submitted that until the filing of the writ petition in
the year 2013, all the officers who had been promoted as Additional Director
General could be so done only after granting them relaxation in the said
residency period varying from six months to two years eight months and one
day. The petitioner has extracted the following before us:
S.No. Name Date of Relaxation given
promotion
(i) D.C. Dey 07.09.2009 6 months
(ii) M.S. Rawat 28.01.2011 7 months
(iii) Shrikant 01.04.2011 6 months
(iv) A. Ponnuswamy 22.03.2012 2 years 8 months
and 01 day
(v) P. Valsa Kumar 01.08.2012 1 year 9 months
40. The petitioner has additionally placed the approval of the relaxation in
the qualifying service in the grade of Inspector General of Police granted by
the Ministry of Home Affairs for promotion to the rank of Additional Director
General for the year 2013 - 2014:
Name Date of Relaxation required
promotion as on 1.1.2013
during vacancy year
2013-14
Shri H.R. 01.06.2011 1 year 5 months
Singh
Shri Ranjit 5.8.2011 1 year 7 months 4
Singh days
Shri M.S. 05.08.2011 1 year 7 months four
Raghava days
The respondents admit these factual assertions before us.
41. By the order dated 21st of June, 2013, it was informed that the
Appointment Committee of the Cabinet („ACC‟ hereafter) had approved the
proposal for empanelment of Shri H.R. Singh and Shri M.S. Raghava IGs for
promotion as Additional Director General in the CRPF for the vacancy year
2013-2014. There is no dispute to the above factual narration which
substantiates the petitioner‟s grievance that it was unfairly and arbitrarily
denied the appointment even though he was identically placed petitioner in
these circumstances.
42. The petitioner joined the CRPF on the 11th of September, 1972. It is an
admitted position that Shri A. Punnuswamy joined the CRPF one year
thereafter on the 16th October, 1973. While the petitioner was promoted as
Inspector General of Police on the 1st of May, 2010, Shri A. Punnuswamy
became Inspector General of the CRPF on the 1st of September, 2010
The petitioner was therefore the senior in service to Shri A.
Punnuswamy by one year, one months and five days. He was senior in the
post of Inspector General of Police by four months to Shri A. Punnuswamy.
Whereas the petitioner required relaxation of only two years and four months
in the residency period, Shri A. Punnuswamy required and was accorded
relaxation of two years, eight months and one day.
43. It is noteworthy that on 24th January, 2012 when the matter was placed
before the ACC, the petitioner had a period of one week of service prior to his
superannuation. In identical circumstances, Shri A. Punnuswamy, Inspector
General of the Police was approved for promotion as Additional Director
General by the ACC on the 22nd of March, 2012 for about eight/nine days and
he superannuated on the 31st of March, 2012. The fitness and merit of the
petitioner is not disputed by the respondents.
44. The above narration also shows that whereas in the case of petitioner, it
was stated that the proposal was delayed and submitted when the officer was
nearing retirement, the case of Shri A. Ponnuswamy was approved by the
ACC even though the facts were identical and Shri A. Ponnuswamy was
appointed for the one week service remaining before he retired !
In view of the identity in the circumstances, we find that there is no
justification or merit in the reasons for denying the petitioner the benefit of
the promotion and granting the same to his junior shortly thereafter.
45. Mr. Saini has also placed a copy of the decision dated 5th of October,
2009 passed in WP(C)No.423-424/2006 titled Union of India & Another v.
S.K. Thakral wherein Union of India had challenged a judgment dated 19th
April, 2005 passed in O.A.No.2130/2002 by the Central Administrative
Tribunal directing the petitioners to consider afresh the case of the respondent
for notional promotion to the post of Additional Director General of Works.
The respondent‟s name for promotion to such post was not included in the
panel approved on 3rd of August, 2011 by the Appointment Committee of
Cabinet even though it featured in the panel recommended by the DPC and
stood approved by the Ministry of Defence. The respondent had also retired
from service with effect from 30th of June, 2000. The respondent had learnt
that as per the policy decision of the ACC, Chief Engineers having less than
three months of service were not considered for promotion to the post of
Additional Director General of Works.
The Tribunal was of the view that the recruitment rules did not lay
down any such restriction on the promotion of Chief Engineers to the post of
Additional Director General (Works) on the ground that they had less than
three months service left before retirement and that executive instructions
could not have been issued in contravention of statutory rules. It was held
that the respondents could not enforce the limitation on the right of a
candidate to be considered for promotion under the recruitment rules on the
ground of the length of his remaining service. In support of its decision, the
Tribunal placed reliance upon the decisions of the Supreme Court in AIR
1981 SC 411, S.L.Sachdev and Ors v. Union of India and Ors; (1992) 1
SCC 20 Comptroller and Auditor General of India & Ors v. Mohan Lal
Mehrotra and Ors, and AIR 1969 SC 33 Chief Settlement Commissioner,
Punjab v. Om Prakash,.
46. The additional ground considered by the Central Administrative
Tribunal, which was identical to the instant case, was that the delay in
considering the panel proposed by DPC and approved by Defence Ministry,
was on account of the acts on the part of the ACC which were not justifiable.
In these circumstances, this court did not interdict the ACC from considering
the grant of notional promotion to the respondent from the date of his
superannuation, so that he may get the benefits of higher pension and
pensionary benefits, considering the fact that he was the senior most Chief
Engineer and was recommended by the DPC and even granted approval by
the Defence Ministry.
The vacancy in question stood created on 31st of March, 2000; the DPC
recommended panel on 20th of April, 2000 stood approved by the Ministry of
Defence in May, 2000. This court approved the decision of the Tribunal to
grant promotion to the respondent with effect from 30 th of June, 2000 and not
from 31st of March, 2000 when the vacancy had occurred. This would be the
date after the approval of the DPC recommendation by the Ministry of
Defence.
47. So far as the present petitioner is concerned, his case was duly
recommended by the DPC on the 23rd of January, 2012 which was approved
by the Ministry of Home Affairs on the 24th of January, 2012. It was at the
stage of consideration by the ACC that the proceedings and recommendations
of the DPC were not approved.
48. The DPC had recommended that the petitioner may be brought on the
panel for promotion to the rank of Additional Director General for the year
2011 - 2012. The DPC further recommended that Shri A. Punnuswamy may
be brought on the extended panel to fill up the resultant vacancy for the year
2011-2012 consequent, upon the retirement of the petitioner on the 31st of
January, 2012. This recommendation was rejected by the ACC on the 3rd of
February, 2012 which has to be set aside and the matter be reconsidered.
Shortly thereafter, in identical circumstances, the ACC has approved the
promotion of Shri Ponnuswamy to serve for barely a week manifesting
arbitrariness in the consideration and discrimination against the petitioner.
Therefore, so far as consideration of the petitioner is concerned, it is the ACC
which has to reconsider the matter.
49. We also find that even though the petitioner had retired, on 31 st of
January, 2012, the action of the DPC on 5th of March, 2012 in not
empanelling him even though the petitioner was fit for empanelment as well,
is contrary to the DoP&T memorandum dated 12 th of October, 1998.
Therefore the petitioner would in any event be entitled for a DPC to be
convened afresh for consideration of his name for empanellement for the post
of ADG on the 1st of October, 2011. However in as much as we have faulted
the consideration and decision by the ACC, we do not propose to make
directions in this regard.
50. Needless to say, given the fact that the petitioner has since
superannuated, he would be entitled to benefit of notional promotion and
consequential benefits.
51. Accordingly, the rejection of the ACC as communicated in the order
dated 3rd of February, 2012 and the order dated 2nd of November, 2012
rejecting the representation of the petitioner are hereby set aside and quashed.
A direction is issued to the respondent to consider afresh from the stage of
consideration by the ACC of the recommendations dated 23rd January, 2013
of the DPC and 24th January 2014 of the respondent no.1 for the grant of
promotion to the petitioner to the post of ADG, CRPF; grant of such notional
promotion to the petitioner with effect from 24th of January, 2012 till he
superannuated on the 31st of January, 2012 as well as to further consider
fixation of pay and allowances to the petitioner from such date notionally and
to grant pension and other pensionary benefits based thereon.
The petitioner shall be entitled to costs which are quantified at
Rs.20,000/-.
(GITA MITTAL)
JUDGE
(DEEPA SHARMA)
JUDGE
SEPTEMBER 12, 2014/mk
