Delhi High Court
Dr. G.S. Tiwari vs Union Of India And Ors on 2 June, 2016
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 2953/2015
Reserved on: 23rd February, 2016
Date of decision: 2nd June, 2016
DR. G.S. TIWARI ..... Petitioner
Through Mr. Padma Kumar, S., Advocate.
Versus
UNION OF INDIA AND ORS. .... Respondent
Through: Mr. Rakesh Kumar, CGSC
with for UOI.
W.P.(C) 2954/2015
J.S. JOSHI ..... Petitioner
Through Mr. Padma Kumar, S., Advocate.
Versus
UNION OF INDIA AND ORS. .... Respondent
Through: Mr. Rakesh Kumar, CGSC with
for UOI.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAJMI WAZIRI
SANJIV KHANNA, J.:
This common order and judgment would dispose of the
aforestated writ petitions filed by Dr. G.S. Tiwari and Mr. J.S. Joshi. The
two petitioners impugn the common order dated 3 rd July, 2014 passed in
OA No. 2820/2012, filed by Dr. G.S. Tiwari and OA No.2822/2012,
filed by Mr. J.S. Joshi. The impugned order had also disposed of the OA
filed by one Mr. Gautam Ray. However, it appears that Mr. Gautam Ray
has not challenged or filed any writ petition before this Court.
2. The petitioners claim and have prayed that they should be granted
the grade of Principal Director, as Dr. G.S. Tiwari had become eligible
and was due for promotion as Principal Director on 1st September, 2007
as per the 2007-08 select list published on 27th May, 2011. Similarly,
Mr.J.S. Joshi had become eligible and due for promotion as the Principal
Director on 1st September, 2008 as per the select list for the year 2008-09
published on 27th May, 2011. Dr. G.S. Tiwari and Mr. J.S. Joshi had
retired from service on 30th June, 2008 and 30th September, 2008,
respectively. The claim of the petitioners is that they are entitled to back
wages and re-fixation of pension and the principle of "no work-no pay"
should not be applied. Reliance is placed on the decision of the Supreme
Court in Union of India & Ors. Vs. K.V. Jankiraman and Ors (1991) 4
SCC 109.
3. In order to appreciate the controversy, we would separately notice
the factual matrix in the two cases.
G.S. Tiwari
4. Dr. G.S. Tiwari was appointed in the grade of Assistant Civilian
Staff Officer, re-designated as Section Officer, in the Armed Forces
Headquarters Civil Service on 1st May, 1973. In August, 1977, he was
promoted to the post of Civilian Staff Officer, re-designated as Deputy
Director. In November, 1982, Dr. G.S.Tiwari was promoted to the post
of Senior Civilian Staff Officer, re-designated as Joint Director. In
September, 1988, Dr. G.S.Tiwari was promoted to the post of Director.
J.S. Joshi
5. Mr J.S. Joshi had joined the Armed Forces Headquarters Civil
Service in the grade of Assistant Civilian Staff Officer on 1st May, 1974.
This post has been re-designated as Section Officer. In September,
1979, he was promoted to the grade of Civilian Staff Officer, re-
designated as Deputy Director. In July, 1984, he was promoted to the
grade of Senior Civilian Staff Officer, re-designated as Joint Director
and in August, 1994, he was promoted to the post of Director.
6. The contention of the petitioners is that there were inter se
seniority disputes between the direct appointees and those appointed on
promotion to the post of Assistant Civilian Staff Officer. Our attention is
drawn to order dated 20th November, 1992 passed by the Principal Bench
of the Central Administrative Tribunal, New Delhi in TA No.356/1985
and the subsequent decision of the Supreme Court in the second round of
litigation dated 19th February, 2008 reported as AFHQ/ISOs SOs (DP)
Association and Ors. Vs. Union of India and Ors., (2008) 3 SCC 331.
The contention is that the inter se seniority disputes had remained
pending for more than two decades and as a result, the two petitioners
had suffered. They had initially succeeded in the litigation in terms of the
order passed by the Tribunal on 20th November, 1992, which was
subsequently affirmed by the Supreme Court in their decision dated 19 th
February, 2008. The Supreme Court had directed that the seniority list
must be drawn strictly in compliance with and as per the spirit of the
judgment of the Tribunal dated 20th November, 1992 and the directions
contained in the said decision shall be carried out within three months
from 19th February, 2008. The petitioners assert and plead that they would
be entitled to the benefit of the said long fought litigation. Specific reliance
was placed on paragraph (g) of the order of the Tribunal dated 20th
November, 1992, which for the sake of convenience is reproduced below:-
"(g) None of the parties including the official
respondents have given relevant data as to when
the actual promotion of Assistants were made to
the temporary cadre of ACSOs in the direct recruit
quota under Note (2) of Schedule 3. The official
respondents on the other hand have taken the
stand in the chart quoted in the body of the
judgment that none of such vacancies in the direct
recruit quota were left unfilled and have been
filled temporarily by the Assistants by making
departmental promotions and since the exact
number is not coming forth (sic) and also the
position whether such departmental promotees
were absorbed in the subsequent vacancies within
their quota of 75%, a direction is issued to revise
the impugned seniority list in the light of the
observations made in the above sub-paras which
shall be made final after hearing the objections on
the same and the petitioners, who have since
retire, shall be entitled to any consequential
benefits occasioned on account of the revision of
the seniority list. The impugned seniority list of
1977 shall stand quashed to that extent. In the
circumstances, the parties shall bear their own
costs."
7. We have considered the said contention but do not find any merit
in the same. Paragraph (g) quoted above from the order of the Tribunal
dated 20th November, 1992 is being read and understood out of context.
8. One Mr. M.C. Bansal and two other promotees to the post of
Assistant Civilian Staff Officers (ACSOS for short) had filed W.P.(C)
No.3 of 1978 in the Delhi High Court alleging that direct recruits freshly
inducted in service were wrongly placed above the departmental
promotees without paying regard to the continuous service rendered in
the grade. The allegation was that the respondent- authorities had
misapplied and misinterpreted the rota and quota Rule 16(7) as well as
the third schedule, in particular Note (2), of the Armed Forces
Headquarters Civil Services Rules, 1968 (Rules, for short). The said writ
petition was transferred to the Central Administrative Tribunal and
registered as TA No.356/1985. The prayer in the transfer petition was
rejected holding that the quota prescribed in the Rules had not broken
down and the seniority between the direct recruits and promotees
regularly appointed/promoted within their respective quota should be
determined by the length of continuous officiation in the grade of
ACSOs. This order of the Tribunal was challenged by the Union of India
before the Supreme Court. The order of the Tribunal was set aside with
a direction for fresh adjudication. In the meanwhile, the three petitioners
retired and the question remained of academic interest. The three
petitioners had also been promoted to the grade of CSO soon after filing
of the petition. However, as some intervener promotees had joined, to
settle the controversy, the Tribunal in the order dated 20th November,
1992 had issued the following directions including the direction in
paragraph (g):-
"(a) It is held that Rule 16(7) and Schedule III so
far as it relates to appointment of the promotees
and direct recruits in their respective quota and
determination of seniority on the basis of quota
and rota is held valid and these are not ultra vires
of Articles 14 and 16 of the Constitution of India.
(b) Seniority between direct recruits and
promotees regularly appointed/promoted within
their respective quota should be determined by the
length of the continuous officiation in the grade
of ACSOs from their respective appointment to the
substantive vacancies under Schedule II within
their quota i.e. in the case of promotee ACSOs the
length of continuous officiation in the grade will
be reckoned from the date when they are
promoted in substantive vacancies.
(c) To elucidate further, in the case of temporarily
appointed promotee ACSOs under Note (2) of
Schedule III of the Rules in the direct recruit
quota w.e.f. 1969 onwards till 1977 and also
thereafter their seniority will be reckoned from the
date when they get a berth in the substantive
vacancies of their 75% quota as envisaged under
Schedule III of the Rules.
(d) The incumbents belonging to one source in
excess of their own quota and utilising the quota
of the incumbents belonging to another source
will only officiate in the promoted post. It is made
clear that the direct recruits when inducted as
nominees of UPSC, the promotees in the quota of
the direct recruits on the basis of Note (2) of
Schedule III of the Rules will either be reverted or
will be absorbed in the vacancies within their
quota of subsequent year. The period of
officiation outside their quota of either of the
incumbents from other source will not count for
their seniority. If an officer has been promoted
within his quota, then it would be date of
confirmation which would be relevant for the
officer's seniority.
(e) When the promotions are made from either of
the sources, by direct recruitment or by
departmental promotion there shall be due
compliance with the various instructions and
office memorandum issued by the Department of
Personnel and Training on the reservation of
vacancies for SC/ST and categories in the
proportion directed in the said instruction. The
reservation, however, shall remain only at the
time of appointment and not in the seniority inter
se of the direct recruits and promotees which shall
be fixed as laid down in Rule 16(7) read with
Schedule III and as directed in the preceding sub-
paras above.
(f) It is further directed that each quota, as
referred to in Schedule III of the Rules has to be
worked out independently on its own force. Direct
recruit quota of ACSOs which is confined to
substantive vacancies in the grade can be filled by
temporarily appointed Assistants by promotion in
the grade of ACSOs, but without giving them any
right of seniority on the basis of continuous
officiation on the vacancies earmarked for direct
recruits and indent for which has been sent to
UPSC for nomination from the civil services
examination of a particular year. The hopes and
aspirations of the promotees aforesaid cannot be
related to availability of direct recruits filling their
quota in that particular year and it can only be
when there is total collapse and breakdown of the
quota for a number of years.
(g) None of the parties including the official
respondents have given relevant data as to when
the actual promotion of Assistants were made to
the temporary cadre of ACSOs in the direct recruit
quota under Note (2) of Schedule III. The official
respondents on the other hand have taken the
stand in the chart quote in the body of the
judgment that of such vacancies in the direct
recruit quota which were left unfilled and have
been filled temporarily by the Assistants by
making departmental promotions and since the
exact number is not coming for the (sic) and also
the position whether such departmental promotees
were absorbed in the subsequent vacancies within
their quota of 75% direct is issued to revise the
impugned seniority list in the light of the
observations made in the above sub-paras which
shall be made final after hearing the objections on
the same and the petitioners, who have since
retired, shall be entitled to any consequential
benefits occasioned on account of the revision of
the seniority list. The impugned seniority list of
1977 shall stand quashed to that extent. In the
circumstances, the parties shall bear their own
costs."
9. The direction given in paragraph (g) has to be read in the context
of the earlier portion of the decision wherein it is specifically mentioned
that the three petitioners had already retired and had been given the
promotional grade within a few months.
10. The dispute subject matter of controversy before the Supreme
Court in the case of AFHQ/ISOs SOs (DP) Association (supra) decided
vide decision dated 19th February, 2008 was an offshoot of the said
decision of the Tribunal dated 20th November, 1992. The authorities had
after decision dated 20th November, 1992 prepared two seniority lists
from the year 1992 for the grade of ASCOs. The Supreme Court noticed
that prior to implementation of the order dated 20 th November, 1992, a
draft seniority list had been issued in 1995 based on the principle of
carry forward of vacant slots and the direct recruit ACSOs were given
the benefit of about 10 to 15 years of antedated seniority, even though
they were not holding any office, nor were they then in service. It was in
these circumstances that some of the promotee officers had filed Original
Application No.1356/1997 before the Tribunal. They were aggrieved by
the seniority list of ACSOs prepared by the Departmental Promotion
Committee for the years 1988-89 and 1989-90 for promotion to the grade
of Civilian Staff Officers (CSOs). The Tribunal vide order dated 1st
April, 2002 had directed that the inter se seniority between direct recruits
and promotees regularly appointed/promoted within their respective
quotas should be determined by counting the length of continuous
officiation from their respective appointment to the substantive
vacancies. For the promotee ACSOs, the length of continuous
officiation in the grade would be reckoned from the date when they were
promoted in the substantive vacancies in the lawful quota. There would
be one select list and there cannot be two select lists. Other directions
were also issued.
11. The High Court in WP (C) No. 5396/2002 by judgment dated 14th
November, 2006 had reversed the said finding observing that the
decision of the Tribunal was contrary to the first order of the Tribunal
dated 20th November, 1992, which was affirmed by the Supreme Court
and had attained finality. The Supreme Court in their decision dated 19th
February, 2008 in AFHQ/ISOs, SOs (DP) Association (supra) reversed
the High Court decision, and restored the verdict of the tribunal dated 1st
April, 2002 in OA No.1356/1997. Directions to abide by the decision of
the Tribunal in TA No.356/1985 dated 20th November, 1992 were made.
12. We do not understand how the said decision would affect the two
petitioners. It is important to reproduce the factual narration given by
the respondents in the counter affidavit. This narration reflects and
elucidates the consequential effect of the decision of the Supreme Court
in AFHQ/ISOs/Sos (DP) Asociation & Ors. (supra) dated 19th February,
2008 on the petitioners' promotion to the post of CSO, Joint Director and
Principal Director. For the sake of completeness and clarity, we would
like to reproduce the said version, which is undisputed:-
J.S.Joshi
Grade Pre-revised Post-review Remarks
(Panel Yr.) (Panel Yr.)
ACSO 1974-75 1974-75 No change
(Vacancy Year) (Vacancy Year)
CSO 1978-79 1978-79 No change in the
panel year
Jt. Director 1983-84 1983-84 No change in the
panel year
Director 1993-94 2002-03 Relegated from 1993-
(Regularly promoted 94 to 2002-03.
on 10.10.2002 in the Note:- Drawing pay
grade of Director) & allowances in the
grade of Director
from 11.07.1994.
Principal Director 2008-09 2008-09 No change in the
(However, (Applicant retired panel year.
recommendation from service on
could not be given superannuation by the (No benefit accrues to
effect as not approved time Panels for the officer as he did
by the Appointment promotion were not assume charge on
Committee of the drawn on basis of promotion)
Cabinet due to Revised Seniority
anticipated changes in List of Directors.
the seniority list)
The DPC held on
18.09.2008 and the
Petitioner retired on
superannuation on
30.09.2008.
"
G.S.Tiwari
Grade Pre-revised Post-review Remarks
(Panel Yr.) (Panel Yr.)
ACSO 1972-73 1972-73 No change
(Vacancy year) (Vacancy year)
CSO 1976-77 1978-79 Seniority post-dated
Jt. Director 1982-83 1983 Seniority post-dated
Director 1987-88 1989 Seniority post-dated
Principal Director Recommended for 2007-08 Retired before
2007-08 (however, assumption of
recommendation could charge.
not be given effect to (Extended Panel)
due to anticipated
changes in the seniority
list)
It is seen from the aforesaid tables that as a result of the decision of the
Supreme Court, the promotion of the two petitioners to the post of CSO
and Joint Director was at the right time. Their promotions to the post of
Director were made before the due dates if the principle or ratio in the
order dated 20th November, 1992 of the tribunal had been applied. The
petitioners had not suffered any disadvantage. In fact, they had secured
an advantage. The decision of the Supreme Court dated 19th February,
2008 or even the earlier decision of the Tribunal dated 19th November,
1992 did not to this extent affect them. It is in this context that we have
mentioned the dates given by the petitioners themselves in the writ
petition as the date of their regular promotions in the hierarchy. For this
reason also, reliance placed on paragraph (g) of the order dated 20 th
November, 1992 of the tribunal is misconceived. The judgment of the
Supreme Court in AFHQ/ISOs, SOs (DP) Association & Ors. (supra)
would not in any manner justify their claim and prayer. The petitioners
in fact had gained. Mr Joshi was promoted as a Director in 1993-94,
whereas post review in terms of the decision in AFHQ/ISOs, CDs (DP)
Association & Ors. (supra) he would have been promoted in 2002-2003
only. Dr G.S. Tiwari was promoted as Director in 1987-88, whereas his
promotion was due in the year 1989. However, it is correct that when the
matter of seniority list was subjudice and pending consideration before
the Supreme Court in AFHQ/ISOs, SOs (DP) Association & Ors.
(supra), promotion etc. in different grades were not made. The effect
thereof has to be examined.
13. The real reason and difficulty faced by the petitioners and why
they could not be promoted as Principal Director have been set out and
given in the counter affidavit. For the sake of convenience, we would
like to reproduce the averments made in the form of a table in the
counter affidavit filed by the respondents in the case of Dr. G.S. Tiwari,
which reads as under:-
"
Grade Pre-revised Post-review Remarks
(Panel Yr.) (Panel Yr.)
ACSO 1972-73 1972-73 No change
(Vacancy year) (Vacancy year)
CSO 1976-77 1978-79 Seniority post-dated
Jt. DIRECTOR 1982-83 1983 Seniority post-dates
DIRECTOR 1987-88 1989 Seniority post-dates
PRINCIPAL Recommended 2007 Retired
DIRECTOR For 2007-08 Before assumption of
(however, (Extended Panel) charge
recommendation
could not be given
effect to due to
anticipated changes in
the seniority list).
"8. That the Petitioner appears to be actually aggrieved due to
his non-promotion in the grade of Principal Director. A
chronological account of facts and circumstances relating to his
grievance are explained as follows:
Date/Year Events relating to PD promotion Remarks/concurrent events
having impact on the
promotion proposal in the
PD Grade
Oct. 2006 Department had initiated action for A number of Writ Petitions
preparation of DPC proposal well before were pending in the Hon'ble
occurrence of the vacancy on 01.09.2007 High Court of Delhi against
due to retirement of Shri Upendra the Hon'ble CAT (PB) Order
Kumar, Principal Director on 31.08.2007 dated 01.04.2002 in OA
(Panel year 2007-08). 1356/97 (Ammini Rajan &
Ors. Vs. UOI), arising out of
Dr. G.S. Tiwari was the second senior CAT Judgment in M.G.
most officer in the grade of Director Bansal's case viz. TA
(feeder grade for promotion to Principal No.356/85 related to the
Director grade). fixation of inter se seniority
of officers in the SO grade
Seniority in the SO grade
would have consequential
effect on the seniority of
officers in the higher grades
viz. DD, JD and Director.
Nov, 2006 DPC proposal against the aforesaid Hon'ble High Court passed a
vacancy under process judgment on 14.11.2006 in
the aforesaid Writ Petitions.
Dec, 2006 DPC Proposal for promotion to PD grade Affected parties filed SLPs
against the aforesaid vacancy sent to the before the Hon'ble Supreme
UPSC, based on the pre-revised Court against the High Court
Seniority List of Directors Judgment ibid.
07.03.2007 DPC proposal was pending with the SLPs admitted by the Apex
UPSC. Court, registered as SLPs
4545 & 5853 of 2007.
Hon'ble Supreme Court
passed order to maintain
status quo, in the SLPs.
Copy of the order dated
07.03.2007 is being annexed
herewith as ANNEXURE-A
Law Ministry advised not to
do any promotions in any
grade viz. SO and above, up
to PD grade in the wake of
status quo order.
06.05.2007 UPSC fixed the date of DPC on Status quo continued to be in
06.05.2007 for the above purpose. operation.
UPSC were informed about the status
quo orders. DPC meeting cancelled.
01.09.2007 Post of PD in question fell vacant on Status quo continued to be in
retirement of Sh. Upendra Kumar, DPC operation.
proposal kept in abeyance in wake of
status quo orders
19.02.2008 Hon'ble Supreme Court
passed final order in the
SLPs 4545 & 5853 of 2007
on 19.02.2008, directing to
re-fix the inter-se seniority
between DP and DR SOs
w.e.f. the date of their
continuous officiation in the
substantive vacancies of
lawful quota(s) right from
1968 onwards; within a perod
of three months.
Status quo ceased to be in
operation with the issue of
final orders.
Feb, 2008 to Status quo stood vacated after Hon'ble Considering that a long-
June, 2008 Supreme Court's Order dated drawn exercise was involved,
19.02.2008. Action was immediately Hon'ble Supreme Court vide
initiated for convening DPC for the year their Order dated 16.06.2008
2007-08 and 2008-09 for regular granted 3 more months i.e.
promotion to the grade of Principal up to 19.08.2008 for
Director. compliance of their Judgment
dated 19.02.2008 on request
Respondents had simultaneously of the Respondents. Copy of
initiated action for filling up the post of the Order dated 16.06.2008 is
Principal Director on ad hoc basis as being annexed herewith as
regular promotions would take long ANNEXURE-B.
time.
Revised seniority list of Director was not
available till that time, pending
redrawing of Revised Seniority List of
SOs in terms of Hon'ble Apex Court's
order dated 19.02.2008 and sequential
exercise for redrawing the promotion
panels/Seniority Lists in the higher
grades upto Director. Therefore,
promotion proposal for the DPC year
2007-08 and 2008-09 to Principal
Director grade was on the basis of pre-
revised Seniority List of Directors.
The UPSC had raised certain
observations on the regular DPC
proposal which was duly replied to by
the Respondents, giving special
reference to the fact that the petitioner
(Dr. G.S. Tiwari) is due for retirement on
30.06.2008. The UPSC vide their letter
dated 22.05.2008 raised following
specific queries-
(a) Present status of the case
(Implementation of Hon'ble Supreme
Court's Judgment)
(b) Impact of the Judgment on the
DPC proposal.
(c) Fresh opinion/Views of Learned
Legal Advisor (Defence) in respect of
prevised (sic) Seniority List of Directors
keeping in view the judgment of the
Apex Court.
The Learned Legal Advisor (Defence) in
his opinion tendered on 26.03.2008 and
10.04.2008 was of firm view that before
making promotions, Department should
first draw the seniority list in accordance
with the Hon'ble Supreme Court's Order
dated 19.02.2008.
An exhaustive reply was furnished to the
UPSC. The Respondents had vide D.O.
letter No.A/40295/PrDir/CAO/P-1,
dated 29.05.2008, written by the then
Additional Secretary, UPSC, again
requested the need for urgent convening
of DPC in organizational interest. The
UPSC in turn vide their letter
24.06.2008 asked for the confirmation
that the DPC proposal would not attract
any contempt of the Hon'ble Supreme
Court's order dated 19.02.2008.
Same query was raised by DOP&
T (ACC Sectt.) on the proposal for ad
hoc promotion to PD grade on basis of
pre-revised Seniority List.
30.06.2008 The DPC proposal was still in the rounds Action for implementation of
of deliberations. Apex Court order underway.
Dr. G.S. Tiwari retired on
superannuation on 30.06.2008 in the
grade of Director.
July 2008 The matter was again referred to LA
(Defence), who in his advice dated
14.07.2008 opined that the Department
at the first instance should prepared the
revised seniority list in the grade of SO
and thereafter they should move upwards
consequentially revising the seniority
lists of the other grades taking the
seniority list of SOs (prepared in
accordance with the Judgment of
Supreme Court dated 19.02.2008 in the
above mentioned matter) as the
foundation up to the grade of Director.
In their opinion dated 14.07.2008 the
Legal Advisor had observed that if the
revised seniority list so prepared is not
strictly in accordance with the direction
contained in para 25 of M.G. Bansal's
case as directed by Hon'ble Supreme
Court, then administration concerned
may be responsible for such laxity.
Copy of the Legal advice dated
14.07.2008 of Ministry of Law & Justice
is being annexed herewith as
ANNEXURE-C.
Aug, 2008 -- Revised inter se seniority of
DPs and DRs in SO grade
from 1968 to 2000 was
issued on 13.08.2008, in
terms of Hon'ble Supreme
Court order dt. 19.02.2008
Revision of seniority in SO
grade would have
consequential effect on
seniority of officers in higher
grades viz. DD, JD, Director
and Principal Director.
Review exercise in respect of
higher grades was yet to be
conducted.
01.09.2008 The aforesaid post of PD remained -do-
vacant for one year and, thus, deemed to
be abolished in terms of Ministry of
Finance orders. Proposal for revival of
post initiated.
18.09.2008 The UPSC convened the DPC for 2007- Preliminary actions for
08 and 2008-08 for promotion to reviewing the Select Lists in
Principal Director grade on 18.09.2008 the grade of DD initiated, as
subject to the changes that might be a sequential action to revision
occurring in course of implementation of of seniority in SO grade.
Hon'ble Supreme Court's dated
19.02.2008.
Oct, 2008 Approval of Ministry of Finance/Deptt. Revised Eligibility List of
Of Expenditure for revival of the post of SOs for drawing up the
PD, which stood abolished w.e.f. reviewed Select Lists for
01.09.2008 for being held in abeyance, promotion in the DD grade
receivd on 27.10.2008. issued.
DPC's recommendations for promotion
to the grade of PD sent to the DOP&T
(ACC) for approval of the Appointments
Committee of the Cabinet (ACC).
Nov, 2008 to Exchanges of communication between `Revised Select Lists for
Aug, 2010 DOP&T (ACC) and Office of JS (Trg.) promotion to the Dy.
& CAO on the validity of the Select Director grade and Reviewed
Lists drawn by the DPCs conducted on Select Lists in the grade of Jt.
the basis of pre-revised seniority list of Director issued.
Directors.
ACC Sectt ultimately directed to re-
conduct the DPCs for promotion to PD
grade after drawing up the revised Select
Lists/Seniority List of Director, in terms
of the revision taking place in the junior
grades
18.08.2010 -- Revised Seniority List of
Directors up to 2009-10
issued, followed by action for
drawing the revised Select
Lists for the years 1993-94,
2002-03 and 2007-08 to
2008-09 and fresh Select
Lists for the years 2009-10 to
2010-11 for promotion to the
grade of PD was initiated.
09.09.2010 DPC proposal sent to the UPSC for --
drawing the revised Select Lists for the
years 1993-94, 2002-03, 2007-08 and
2008-09 and fresh Select Lists for the
years 2009-10 and 2010-11 for
promotion to the grade of Principal
Direction (PD).
10.01.2011 DPCs held at the UPSC. --
31.01.2011 After obtaining the approval of the RM, --
DPCs' recommendations sent to the
DOP&T (ACC) for approval of the
ACC.
May, 2011 ACC approval received. As approved, Promotion orders in
Select Lists were issued as under: accordance with the Select
Lists were issued on
1993-94: 27.05.2011 except in the case
of following officers who had
1. Sh. Hari Singh already retired from service
2. Sh. S.K. Mukhopadyaya and could not be promoted as
PD as they already retired
2002-03: before their empanelment
and promotion:-
1. Sh. G.N. Tripathi
2. Sh. K. Khansnobis 1. Sh. G.N. Tripathi
3. Sh. B.B. Mohapatra, (extended 2. Sh. H. Khasnobis
panel in lieu of retirement of Sh. 3. Dr. G.S. Tiwari
G.N. Tripathi) 4. Smt. Dayal Ray
5. Sh. J.S. Joshi
2007-08 6. Sh. Goutam Ray
1. Sh. Upendra Kumar
2. Dr. G.S Tiwari (extended
Panel in lieu of retirement of Sh. Sh. Hari Singh, Sh. S.K.
Upendra Kumar) Mukhopadhyay, Sh. B.B.
Mohapatra and Sh. Upendra
2008-09: Kumar had worked as
regular PDs based on the
1. Smt. Dayal Ray erstwhile Select Lists. No
2. Sh. J.S. Joshi fresh order for regular
3. Sh. Goutam Roy promotion in their case was
4. Sh. G. Vijaya Kumar, (extended issued.)
panel in lieu of retirement of Sh.
J.S. Joshi) It may noted that:
2009-10: i) None of the
applicant's junior has got the
1. Sh. G.P Chand benefit of promotion as
Principal Director from a
2010-11: date prior to the date of
retirement of the applicant.
1. Sh. S.N. Singh ii) The officers who
2. Sh. Ranbir Singh have assumed promotion as
3. Smt. Uma Bhattacharyya Principal Director are getting
4. Sh. Dilip Kumar, (extended panel in the benefit of promotion only
lieu of retirement of Sh. Ranbir from the date of their
Singh) physical charge assumption.
9. That as is evidence from the table above, a vacancy in
the grade of Principal Director arose on 01.09.2007 due to
retirement of Shri. Upendra Kumar on 31.08.2007. The
DPC proposal for drawing up a select list against the said
vacancy was sent to the Respondent No.3 (UPSC) in
December, 2006 who fixed the DPC meeting for
06.05.2007. The DPC however could not be held on
06.05.2007 in wake of the orders of the Hon'ble Supreme
Court dated 07.03.2007 in the CA Nos. 1384 and 1385 of
2008 (arising out of SLP Nos.4545 and 5853 of 2007
respectively) to maintain status quo and the Ministry of Law
had advised not to make promotions even on ad-hoc basis in
the grades of ACSO and above till such time the status quo
orders were not vacated."
10. That the status quo continued to be in operation till
19.02.2008 when the Hon'ble Apex Court eventually
decided the said CAs as per para 5 above. On 30.06.2008,
Dr. G.S.Tiwari, the Petitioner retired on superannuation as
Director without having been promoted to the grade of
Principal Director.
11. That in compliance of the Apex Court order dated
19.02.2008, as a first step of the sequential actions revised
seniority in the grade of ASCO from 1968 onwards was
issued on 13.08.2008. Thereafter, based on the revised
inter-se seniority list of ACSOs, the Select Lists/Seniority
Lists in the grades of CSO, Jt. Director and Director also
underwent change. Ultimately, all the select lists viz. 1993-
94, 2002-03, 2007-08, 2008-09, 2009-10 and 2010-11 for
promotion to the grade of Principal Director had been
revised and notified on 27th May, 2011, with the approval of
the Appointments Committee of the Cabinet (ACC).
12. That the ACC accorded their approval vide their Order
No. 12/6/2011-EO (SM.II) dated 22.05.2011 for promotion
of officers in the grade of Principal Director with effect
from the date of assumption of charge of the post till
superannuation or until further orders, whichever was
earlier. accordingly, such empanelled officers including the
Petitioner who had retired before notification of select lists
ibid could not be promoted to the grade of Principal
Director, as the benefit of promotion takes effect only on
assumption of the higher post. It may, however, be noted
that the empanelled officers who were in service on
27.05.2011 viz. date of notification of select list for
promotion to Principal Director, have got the benefit of
promotion only from the date of assumption of duties in the
grade of Principal Director. It is further stated that none of
the applicant's juniors who were included in the select lists
ibid and was thereupon promoted as Principal, has got the
benefit of promotion in that grade from a date prior to
30.06.2008 viz the date of retirement of the Petitioner who
due to his retirement before the issue of select list could not
be promoted as Principal Director.
13. That the Petitioner preferred a representation on
29.06.2011 for grant of notional promotion in the grade of
Principal Director and consequential benefits thereof, based
on his empanelment in the select list for the year 2007-08.
Office of the Respondent No. 2 made a reply vide their
Letter No. A/47947/REP/PD/CAO/P-1 dated 26.08.2011 as
follows:
"2 As per the DOP&T instructions, the regular
promotion becomes effective only on charge
assumption of the empanelled officer. The
Appointments Committee of the Cabinet (ACC) has
also accorded approval for grant of promotion to
the grade of Principal Director w.e.f. the date of
assumption of the post by the empanelled officers
till their superannuation or till further orders,
whichever would be earlier.
3. You had already retired from service when
approval of the ACC for promotion to the grade of
Principal Director was received . As such, orders
for promotion in the grade of Principal Director in
your case were not issued. consequently, the relief
claimed by you are not admisible."
The aforesaid quotation, though lengthy, sets out in great detail the steps
taken from time to time by the respondents for holding of the DPC after
the decision of the Supreme Court. The aforesaid reasoning would
squarely indicate that the respondents had acted with promptitude and
were not lethargic and maledict. There were practical difficulties in
implementation of the order. A similar table/chart has been filed by the
respondents in the case of Mr. J.S.Joshi. To avoid repetition we are not
reproducing the said table/chart and reasons. Paragraphs 10-13 of the
counter affidavit quoted above in the case of Dr. G.S. Tiwari elucidate
the reasons for delay in holding the meeting of the DPC for promotion to
the post of Principal Director consequent to which the petitioners herein
could not be considered for promotion to the said post. It is pertinent to
mention here that Dr. G.S. Tiwari was entitled for promotion and could
have been considered for the vacancy year 2007-08 because of the
extended panel in view of retirement of Mr. Upender Kumar. Thus there
were others also who could not be considered for promotion to the post
of Principal Director because of the delay in holding the DPC. Dr.
G.S.Tiwari would not have been in the zone of consideration for the
vacancy year 2007-08, but for the fact that Mr.Upender Kumar had
retired. As recorded above, Dr.G.S.Tiwari had retired on 30 th June,
2008, i.e. within a few months of the pronouncement dated 19th
February, 2008 in AFHQ/ISOs/SOs (DP) Association and Ors. (supra).
Mr.J.S.Joshi retired on 30th September, 2008 as noticed below, before the
DPC could be held on the basis of revised seniority and the empanelment
notified.
15. It has been explained that the Supreme Court had passed an order
maintaining status quo on 07.03.2007, which was in operation till
19.02.2008. In terms of the judgment dated 19.02.2008, the seniority list
had to be revised within three months. This time was extended till
19.08.2008 by the Supreme Court by order dated 16.06.2008. The entire
chain/hierarchy had to be re-worked and the exercise undertaken.
Appointments Committee of the Cabinet did not agree with the minutes
of the meeting of the DPC held on 18.09.2008 for empanelment of the
two petitioners in the select list for the years 2007-2008 and 2008-2009
respectively, for the reason that the entire or complete sequential
exercise had been directed by the Supreme Court in
their order dated 19.02.2008. Accordingly, the recommendation of the
DPC held on 18.09.2008 based upon the pre-revised seniority list could
not be given effect to and was unacceptable. Revised seniority list in the
grades of Deputy Director and Joint Director for the corresponding years
was drawn on 13.08.2008. Revised seniority list of Directors drawn on
this basis was re-drawn on 18.08.2010. DPC was, thereafter, held for
drawing of the select list to the grade of Principal Director for the years
1993-1994(revised), 2002-2003(revised), 2007-2008 (revised), 2008-
2009(revised), 2009-2010 and 2010-2011. Recommendations of the
DPC for promotion from the grade of Director to that of Principal
Director were notified on 27.05.2011 with the approval of the
Appointments Committee of the Cabinet which was accorded on
22.02.2011. The approval was granted from the date of assumption of
charge of the posts of the Principal Director till superannuation or further
orders, whichever was earlier. Thus, the promotion was to take effect on
assuming of the higher post of Principal Director. Consequently, only
empanelled officers who were still in service on 27.05.2011, i.e. the date
of notification of the Selection Committee, were promoted as Principal
Directors. Others, who had retired, were not given promotion to the
grade of Principal Director. It is also a fact that the two petitioners were
never appointed and had not worked at the post of Principal Director.
They had retired earlier, in June and September, 2008.
16. The question which arises for our consideration is whether in the
aforesaid background, the two petitioners could claim appointment to
the said posts of Principal Director with retrospective effect or even
notionally. The answer in the facts of the present case would be against
the petitioners. The normal rule is that promotion is effective
prospectively from the date of issue of the order of promotion and those
employees who have retired prior to such date, should not be granted
promotion retrospectively. Even when an employee is included in the
select list in the panel of promotion and has retired before he could be
promoted, retrospective promotion should not be given. There is no rule
that promotion could be given from the date of creation of promotional
posts or from the date of vacancy. Promotion to a post would be from
the date promotion is granted and not from the date the post falls vacant.
The aforesaid general rule is subject to exceptions. Two significant
exceptions are, when there is a specific stipulation to the said effect in
the rules and when a junior to the retired employee has been granted
promotion from the date when the retired employee claiming notional
promotion was in service. In the present case, no rule has been brought
to our notice. The first exception is not applicable. The Tribunal has
specifically recorded and it has not been challenged that juniors to the
petitioners were not promoted from a date when the petitioners were in
service. The second exception therefore cannot be invoked and applied.
17. To elaborate and affirm the legal position, we would like to refer
to some decisions. In Union of India vs. K.K. Vadera & Ors, 1989
Supp (2) SCC 625, Junior Scientific Officers were granted promotion to
the post of Scientist B with retrospective effect from 1 st July, 1984 and
not from the date of actual promotion. The contention of the respondents
was not accepted though the promotion was vacancy based. It was
unequivocally held that service jurisprudence does not know of any law
or rule under which promotion is to be effected from the date of creation
of the promotional post or after a post falls vacant for any reason
whatsoever. Promotion to a post should be from the date the promotion
is granted and not from the date on which such post falls vacant. The
judgment of the Tribunal was reversed.
18. In Uttaranchal Forest Rangers Association (Director Recruits)
vs. State of U.P. (2006) 10 SCC 346 the Supreme Court observed that
seniority has to be decided on the basis of rules in force on the date of
appointment, no retrospective promotion or seniority can be granted
from a date when an employee has not even been borne in the cadre. In
Nani Sha and Others vs. State of Arunachal Pradesh and Others
(2007) 15 SCC 406, after examining the legal position, the Supreme
Court observed that in order to make a provision applicable with
retrospective effect, it should be specifically expressed in the provision.
Otherwise the rule would be prospective. This case related to disputes
between direct recruits and promotes and after referring to their earlier
judgment in the case of State of Uttaranchal v. Dinesh Kumar Sharma
(2007) 1 SCC 683, the Supreme Court opined that seniority is to be
reckoned not from the day when the vacancy arose but from the date on
which the appointment is made to the post. The Supreme Court in
Dinesh Kumar Sharma (supra) had disapproved the decision of the
High Court which had directed retrospective effect be given from the
date of vacancy. It was held that retrospective effect could not have
been given in the absence of rules as this was not the general principle.
In Amarjeet Singh and others v. Devi Ratan and others (2010) 1 SCC
417, the Supreme Court reversed the order of the High Court granting
notional promotion. It was held that law permits retrospective effect in
exceptional circumstances and not otherwise.
19. We are conscious and aware that in Rajinder Pal Singh Lamba
Vs. Suraj Bhan and Others, (2008) 14 SCC 679, the Supreme Court has
observed and referred to the fiduciary duty of the employer to consider
names of eligible candidates for promotion in accordance with the
statutory rules, as and when the vacancy arises. The facts of the present
case, however, show that there were issues and questions pertaining to
seniority which were pending consideration. The judgment of the
Supreme Court was pronounced in the case of AFHQ/ISOs/SOs (DP)
Association and Ors. (supra) on 19th February, 2008 and thereafter on
the basis of year-wise vacancy position, DPCs were held and promotions
were made, but the petitioners could not be promoted as they had retired.
They also could not be given notional promotion as no junior was
promoted. This is not a case wherein the respondents had deliberately
and for extraneous reasons, arbitrarily and contrary to the law belatedly
held and delayed holding of the DPC, causing prejudice. Lethargy,
remiss and lackadaisical approach is not apparent and perceptible.
20. Learned counsel for the petitioner had relied upon the
observations of the Tribunal in their order dated 20th November, 1992
that the parties would be entitled to consequential benefits. It is
submitted that this should be read as part and parcel of the order dated
19th February, 2008 passed by the Supreme Court in AFHQ/ISOs/SOs
(DP) Association and Ors. (supra). There was no such specific direction
in the order dated 19th February, 2008. In fact, the Supreme Court had
stated that DPCs would be held. What was affirmed and upheld by the
Supreme Court was the rule of seniority which would be implemented by
applying the principle of rota-quota. Nowhere did the Supreme Court
direct that the persons who had retired or would retire shortly thereafter,
would be entitled to benefits from retrospective effect. We have also
elucidated that the seniority position as determined pursuant to and in
terms of the Supreme Court directions was not to the advantage or
benefit of the two petitioners. However, the seniority dispute had
prevented official respondents from holding the DPCs. In the absence of
specific directions by the Supreme Court in the order dated 19th
February, 2008, we do not think that the petitioners on the basis of the
said judgment can claim retrospective or notional promotion from the
date/year of vacancy.
21. In these circumstances, the Tribunal in the impugned order has
rightly relied upon the decisions of the Supreme Court in Union of India
Vs. K.K. Vadera & Ors., 1989 Supp (2) SCC 625, Baij Nath Sharma
Vs. Hon'ble Rajasthan High Court (Jodhpur Bench), 1988 SCC (L&S)
1754 to hold that retrospective promotion cannot be granted. Pertinent in
this regard is reference to the Fundamental Rule 17(1), which reads:-
"FR 17(1) Subject to any exception specifically
made in these rules and to the provision of sub-rule
(2), an officer shall begin to draw the pay and
allowances attached to his tenure of a post with
effect from the date when he assumes the duties of
that post, and shall cease to draw them as soon as he
ceases to discharge those duties:
Provided that an officer who is absent from duty
without any authority shall not be entitled to any pay
and allowances during the period of such absence.
(2) The date from which a person recruited
overseas shall commence to draw pay on first
appointment shall be determined by the general or
special order of the authority by whom he is
appointed."
22. Decision in the case of K.V. Jankiraman (supra) proceeds on its
own facts. This is not a case wherein a junior to the petitioners had been
promoted. Had that been the situation, different consequences would
have followed.
23. In view of the aforesaid reasoning, we do not find any merit in the
present writ petitions and the same are dismissed.
(SANJIV KHANNA)
JUDGE
(NAJMI WAZIRI)
JUDGE
JUNE 2nd, 2016
NA
