Delhi High Court
Gurcharan Singh vs Union Of India & Ors. on 7 January, 2021
$~Suppl.-20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 120/2021 & CM APPL. 372/2021
GURCHARAN SINGH ...... Petitioner
Through: Mr. Vidya Sagar, Advocate.
versus
UNION OF INDIA & ORS. ...... Respondents
Through: Mr. Naresh Kaushik, Advocate for UPSC.
% Date of Decision: 07th January, 2021
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MS. JUSTICE ASHA MENON
JUDGMENT
MANMOHAN, J (Oral):
1. The petition has been heard by way of video conferencing.
2. Present writ petition has been filed challenging the order dated
2nd November, 2020 passed by the Central Administrative Tribunal [CAT] as
well as the departmental order dated 2nd November, 2019.
3. Petitioner also prays for a direction to the respondents to hold a review
Departmental Promotion Committee [DPC] for considering the petitioner for
promotion to the Junior Times Scale [JTS] of the Indian Civil Accounts Service
[ICAS] w.e.f. 1st November, 2019 on notional basis for the purpose of re-
calculating petitioner's retirement benefits.
4. Learned counsel for the petitioner states that the petitioner had arbitrarily
not been considered for promotion even when three vacancies existed. In support
of his contention, he relies upon para 4.5 of the Original Application filed before
the Tribunal wherein it had been averred that there was vacancy on account of
extension of deputation term of Shri Sahib Singh and on account of retirement of
Shri B.S. Chaudhary on 01st November, 2019.
5. He points out that UPSC had promoted two similarly situated colleagues
even when the respondent had informed UPSC that there was one vacancy.
6. Learned counsel for the petitioner submits that the legitimate expectations
of the petitioner of being considered for promotion had been defeated by the acts
of the respondents. In support of his submission, he relies upon the judgment of
the Supreme Court in Union of India and Another Vs. Hemraj Singh Chauhan
and Others, (2010) 4 SCC 290.
7. Having heard learned counsel for the petitioner and having perused the
paperbook, this Court is of the view that an employee does not have the right to
promotion but only a right to be considered.
8. In the present case the department by way of a reasoned order dated 2nd
December, 2019 has taken a categorical stand with respect to the number of
vacancies that needed to be filled in the year 2019. The department's
communication dated 2nd December, 2019 is reproduced herein below:-
" 2. In this regard, it is intimated that the representation
dated 06.11.2019 of Shri Gurucharan Singh, Sr. AO has been
examined in detail as per DoP&T's O.M. dated 15.05.2007.
3. For determination of regular vacancies, DoP&T's OM
dated 15.05.2007 stipulates that the vacancies to be taken into
account should be the clear vacancies arising in a
post/grade/service due to death, retirement, resignation,
regular long-terms promotion and deputation or from creation
of additional posts on a long term. As regards, vacancies
arising on account of deputation for more than one year will
be taken to the recruitment roster for regular appointment,
only after ensuring that clear vacancies will be available for
deputationists likely to return to the cadre. Purely short-term,
vacancies created as a result of officers proceeding on leave
or on deputation for a shorter period, training etc. will not be
taken into account for the preparation of regular panel under
any circumstances.
4. While sending the proposal for Supplementary DPC for
the vacancy year 2019, this office sent only one additional
vacancy to UPSC keeping in mind as per DoP&T's O.M.
dated 15.05.2007l which was accepted by the UPC. At that
time, no other vacancies were available for the vacancy year
2019 which was more than one year.
5. As of now, there is no long term vacancy i.e. more than
one year for the vacancy year 2019 to consider for Induction
in ICAS."
(emphasis supplied)
9. This Court is also in agreement with the view of the Tribunal that "much
would depend upon the availability of the vacancy and the need, felt by the
department to effect promotions. In the matter of calculation of vacancies the
last word is to be uttered by the department and not by the employee, waiting for
promotion."
10. In fact it is settled law that a promotion is not to be effected from the date
of creation of the promotional post or from the date when the additional post is
created or from the date on which such post falls vacant (Union of India v. K.K.
Vadera, 1989 Supp (2) SCC 625).
11. Further, as no malice in fact has been alleged against any particular officer,
the department's view with respect to the number of vacancies in 2019 has to be
accepted.
12. Keeping in view the aforesaid facts, the Supreme Court judgment in Union
of India and Another Vs. Hemraj Singh Chauhan and Others (supra) is
inapplicable to the facts of the present case.
13. It is also settled law that a retired employee cannot be promoted except
when a junior has been promoted while the employee was in service. Since that
is not the case in the present instance, the writ petition and application being
bereft of merits are dismissed.
14. The order be uploaded on the website forthwith. Copy of the order be also
forwarded to the learned counsel through e-mail.
MANMOHAN, J
ASHA MENON, J
JANUARY 07, 2021
AS
