Delhi High Court
Union Of India & Anr. vs Nandkishore Meena & Ors. on 21 October, 2024
Author: C. Hari Shankar
Bench: C. Hari Shankar, Sudhir Kumar Jain
$~85 & 86
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4380/2024, CM APPL. 17942/2024
UNION OF INDIA & ANR. .....Petitioners
Through: Mr. Vijay Joshi, Sr. PC with
Mr. Shubham Chaturvedi, Adv.
versus
NANDKISHORE MEENA & ORS. .....Respondents
Through: Ms. Esha Mazumdar, Adv. with
Mr. Setu Niket, Ms. Unni Maya, Mr. Ishan
Singh and Mr. Devansh, Advs.
+ W.P.(C) 6350/2024, CM APPL. 26367/2024
UNION OF INDIA & ANR. .....Petitioners
Through: Ms. Pratima N. Lakra, CGSC
with Mr. Chandan Prajapati, Adv.
versus
MOHAN SINGH BAIS .....Respondent
Through: Mr. Mrinendra Singh and Ms.
Preeti Singh, Advs.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT (ORAL)
% 21.10.2024
C. HARI SHANKAR, J.
1. These writ petitions are directed against judgment dated 13 July
2023 passed by the learned Central Administrative Tribunal Principal
Bench, New Delhi1 in OA 2262/20192 and OA 139/20183.
2. The applicants in the aforesaid OAs, who are the respondents
before us in these writ petitions, had superannuated by the time they
had preferred the OAs. Their prayers before the learned Tribunal was
that they be granted the selection grade w.e.f.4 the date on which their
juniors had been granted the said grade.
3. The case of the respondents for notional promotion from the
date of grant of promotion to the juniors was not considered on the
ground that the respondents had already superannuated by the time the
DPCs were convened.
4. The learned Tribunal has held in favour of the respondents and
allowed the OAs, following OM dated 12 October 1998 passed by the
Department of Personnel and Training5, the relevant portion of which
read thus:
"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 Training for
consideration of retired employees, while preparing year-wise
panel(s), who were within the zone of consideration in the relevant
year(s). According to 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 year-wise zone of
consideration/panel and, consequently, their juniors are considered
1 "the learned Tribunal", hereinafter
2 Nandkishore Meena v UOI
3 Mohan Singh Bais v UOI
4 With effect from
5 "DOPT" hereinafter
(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 panels) following the principles prescribed in the
Department of Personnel and Training Office Memorandum
No.22011/8/87-Estt.(D) dated April 2, 1996."
5. Aggrieved by the aforesaid decision, the UOI has preferred the
present writ petitions, submitting that, in view of the judgment of a
Division Bench of this Court in P.P. Verma v Chief Secretary6, which
has specifically considered the aforesaid OM dated 12 October 1998,
the impugned judgment of the learned Tribunal cannot sustain.
6. We have heard Ms. Pratima N. Lakra, learned CGSC appearing
for the UOI, Ms. Esha Mazumdar, learned Counsel for the respondents
in WP (C) 4380/2024 and Mr. Mrinendra Singh, learned Counsel for
the respondent in WP (C) 6350/2024 in these petitions.
7. To the extent that Ms. Pratima N. Lakra submits that the
interpretation, by the learned Tribunal, on the OM dated 12 October
1998 may not be in sync with the judgment of the Division Bench of
this Court in P.P. Verma, she is correct. The Division Bench of this
Court has interpreted the aforesaid OM in P.P. Verma, referred to the
following passages from an earlier judgment of the Division Bench of
this Court in UOI v Rajendra Roy7:
"16. In Rajender Roy's case this Court has held as under:-
6 MANU/DE/4048/2013
7 ILR (2007) 1 Delhi 378
Reliance placed by the Tribunal on OM No.
22011/4/08/Estt. (DS) dated 12.10.1998 issued by the DOP
& T also appears to be misplaced. The Tribunal has read
words into the language used in the said office
memorandum which presumably was issued after the
judgment of the Supreme Court in the case of Baij Nath
Sharma8. The relevant extract of the said office
memorandum reads as follows: "according to the legal
opinion 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 also considered while preparing year wise,
zone of consideration/panel, and consequently, their juniors
to consider (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)". This part of the
office memorandum is in consonance with the judgment of
the Supreme Court in Baij Nath Sharma since it provides
that the superannuated employees should not be considered
by the DPC, which is being held after their superannuation
and in their place juniors, who are otherwise eligible should
be brought into the zone of consideration.
20. However, we notice that, curiously, the next two
sentences used in the same office memorandum go contrary
to the earlier part. It goes on to say "names of the retired
officials may also be included in the panel(s) such retired
officials would, however, have no right for actual
promotion.
21. While as per the earlier part the superannuated
employees are not to be placed in the zone of
consideration/panel, contradicting the said statement, the
later part states that names of the retired officials may also
be included in the panel. The use of the expression "actual
promotion" in the following sentence gives the impression
that the same has been used in contradistinction with
"notional promotion". It appears that the Tribunal was
influenced by the latter portion of the said OM and,
therefore, construed it in favour of the respondent.
22. We feel that the Tribunal erred on this count as well.
The thrust of the OM, which was issued soon after the
8 Baij Nath Sharma v Hon'ble Rajasthan High Court at Jodhpur, (1998) 7 SCC 44
decision of the Hon'ble Supreme Court in Baij Nath
Sharma is to clarify that the superannuated employees
should not be considered for promotion where the DPC is
being held after their superannuation. The later part of the
OM, which is contradictory to the dictum of the Hon'ble
Supreme Court in Baij Nath Sharma obviously cannot be
given effect to. Pertinently even the said OM does not in
clear terms say that the retired/superannuated employees, if
considered and recommended by the DPC would be granted
notional promotion from a back date. However, the
Tribunal has read this aspect into the OM which, in any
event, it could not have done.
23. In view of the aforesaid, we find that the decision of
the Tribunal is erroneous and the directions given therein
are contrary to the judgments of the Hon'ble Supreme Court
in K.K. Vadera9 as well as Baij Nath Sharma."
8. The Division Bench in Rajendra Roy interpreted the OM dated
12 October 1998 has held that the OM dated 12 October 1998 could
not be interpreted as grating superannuated employees a right to be
promoted from the dates prior to their retirement. It was clarified that
the OM dated 12 October 1998 merely required such employees to be
also included so as to determine the zone of consideration in the
relevant years and thereby assessed the employees, who would be
entitled to be considered by the DPC.
9. To that extent, therefore, Ms. Pratima N. Lakra is justified in
her submission that the manner in which the learned Tribunal has
interpreted the OM dated 12 October 1998 is not correct.
10. That said, however, Ms. Esha Mazumdar and Mr. Mrinendra
Singh have pointed out that the principle that an employee, who has
9 1989 Supp (2) SCC 625
retired, cannot be considered for notional promotion from a date prior
to his retirement would not apply where juniors to the said employee
have in fact been granted notional promotion from the said date. In
such a case, Ms. Esha Mazumdar and Mr. Mrinendra Singh submit
that the said employee would also be entitled to be considered for
notional promotion from the date on which his juniors were granted
the said promotion.
11. We may note that this position is also recognised by the
Division Bench in P.P. Verma itself, para 19 of which extracts the
following passages from the earlier decision of the Division Bench in
UOI v R.N. Malhotra10:
"19. Even in R.N. Malhotra's case this Court referring to the
judgments of the Supreme Court in Union of India v. K.K. Vadera
and Baijnath Sharma v. Hon'ble Rajasthan High Court at
Jodhpur & Anr., which were referred to by this Court in Rajender
Roy's case (supra) has held as under:-
11. Baij Nath Sharma followed the earlier decision of
the Supreme Court in the case of Union of India v. K.K.
Vadera which categorically stated as under:-
"We do not know of any law or any rule under
which a promotion is to be effective from the date
of creation of the promotional post. After a post
falls vacant for any reason whatsoever, a promotion
to that post should be from the date the promotion is
granted and not from the date on which such post
falls vacant."
12. It was further observed in K.K. Vadera as under:-
If on the contrary, promotions are directed to
become effective from the date of the creation of
additional posts, then it would have the effect of
10 2012 SCC OnLine Del 3477
giving promotions even before the Assessment
Board has met and assessed the suitability of the
candidates for promotion.
13. The clear view taken by the Supreme Court is that a
promotion cannot be granted prior to the convening of the
Departmental Promotion Committee which considered the
question of promotion. The only rider is where a junior has
been promoted prior to the superannuation of the retired
employee."
(Emphasis supplied)
12. When one turns to the decision of the Supreme Court in Baij
Nath Sharma, the position in law becomes clear. The Supreme Court
while holding, in the said case, that ordinarily a person, who has
superannuated from service would not have a right to be considered
and granted notional promotion from a date prior to his
superannuation, clarified the position in para 6 of the judgment thus:
"6. The appellant could certainly have a grievance if any of his
juniors had been given promotion from a date prior to his
superannuation. It is not the case here. From the promotional quota,
four promotions were made only on 30-12-1996, i.e., after the
appellant had retired. Those promoted were given promotions from
the dates the orders of their promotions were issued and not from
the dates the posts had fallen vacant. It is also the contention of the
High Court that these four officers, who were promoted to the
RHJS, were senior to the appellant as per the seniority list. The
question which falls for consideration is very narrow and that is, if
under the rules applicable to the appellant promotion was to be
given to him from the date the post fell vacant or from the date
when order for promotion is made. We have not been shown any
rule which could help the appellant. No officer in the RJS has been
promoted to the RHJS prior to 31-5-1996 who is junior to the
appellant. Further decision by the Rajasthan High Court has been
taken to restore the imbalance between the direct recruits and the
promotees which, of course, as noted above, is beyond challenge."
13. The case of the present respondents clearly falls within the
excepted category noted in para 6 of Baijnath Sharma. The impugned
judgment notes, in para 4, the fact that juniors of the respondents had
in fact been granted selection grade by a notification dated 27
December 2018. Though the said notification, expressly read, states
that they were granted the said grade with immediate effect, the
petitioners has placed on record an additional affidavit dated 14
October 2024, Paras 3 and 4 of which read thus:
"3. That it is most respectfully submitted that the DPC meeting
for the promotion to Selection Grade at DANIPS for the vacancy
year 2016, 2017 and 2018 was held on 20.12.2018 in UPSC. It is
further submitted that the serving employees were granted
promotion on notional basis from the retrospective dates, i.e. the
date they attained eligibility for promotion i.e. 01.07.2016 for the
vacancy year 2018. However, the benefits of actual promotion was
granted w.e.f. the date the officer concerned assumed the charge of
the post.
4. That the details of employees who were considered and
promoted by the DPC held on 20.12.2018 is reproduced as under-
a. Zone of Consideration for the year 2016
Sr. Name Date of Birth Promoted
No. (Remark)
YES/NO
1. Ram Lal Meena (ST) 15.06.1957 NO
2. Lala Ram Meena (ST) 03.07.1956 NO
3. Ajay Pal Singh 23.08.1962 YES
b. Zone of Consideration for the year 2017
Sr. Name Date of Birth Promoted
No. (Remark)
YES/NO
1. Krishan Kumar (SC) 01.04.1979 YES
2. Ashish Anan 06.11.1984 NO
3. Mohan Singh Bais 05.09.1957 NO
4. Jaldhari Lal Meena 24.07.1957 NO
(ST)
5. Anjitha Chepyala 10.02.1982 YES
6. Nand Kishore Meena 12.08.1957 NO
(ST)
7. Sukhraj Katewa 16.07.1977 YES
8. Sukant Shailja Ballabh 01.03.1979 YES
9. Ram Chander Meena 01.10.1957 NO
(ST)
10. Kamla Devi Meena 20.02.1960 YES
(ST)
c. Zone of Consideration for the year 2018
Sr. Name Date of Birth Promoted
No. (Remark)
YES/NO
1. Ashish Anan 06.11.1984 NO
2. Kamal Pal Singh 08.12.1981 YES
Malhotra
3. Girraj Singh 15.10.1959 YES
4. Pankaj Kumar 16.01.1982 YES
5. Virendra Singh 12.08.1958 NO
Meena (ST)
6. Rashmi Sharma 24.10.1980 YES
7. Sanjay Kumar 01.12.1981 YES
8. Pawan Kumar 20.01.1981 YES
9. Sikandra Singh 07.10.1984 YES
10. Sandeep Byala 23.11.1967 YES
11. Rajeev Kumar 03.08.1980 YES
Ambasta
12. Khiladi Ram Meena 13.04.1958 NO
(ST)
13. Sardar Singh Rana 10.06.1958 NO
14. Surjit Singh Malik 07.08.1959 YES
(SC)
15. Shri Krishan Meena 01.09.1963 YES
(ST)
16. Lakshmi Kanawat 19.05.1969 YES
(SC)
17. Sardool Singh 02.03.1958 NO
14. Thus, there is a candid acknowledgement, in the additional
affidavit filed by the petitioners that the employees, who were
favourably considered by the DPC which convened on 20 December
2018, were granted notional promotion from the retrospective dates,
i.e., the date when they had attained eligibility for promotion, i.e., 1
July 2016 for the vacancy year 2018.
15. That being so, it becomes clear that, though the notification
dated 27 December 2018 uses the words "with immediate effect", the
persons who were promoted by the DPC on the basis of which the
notification was issued were actually granted retrospective seniority,
from the date when they attained eligibility for promotion.
16. In that view of the matter, the case is fully covered by para 6 of
the judgment of the Supreme Court in Baij Nath Sharma.
17. The principle that the respondents, having superannuated,
would not be entitled to be considered for notional promotion from a
date prior to their superannuation would not, therefore, apply as their
juniors were in fact considered and given retrospective promotion.
18. The ultimate conclusion on which the learned Tribunal has
arrived at cannot, therefore, be faulted.
19. Accordingly, albeit for reasons different from those which
weighed before the learned Tribunal, we find no reason to interfere
with the judgment under challenge. The petitions are accordingly
dismissed.
20. Ms. Esha Mazumdar points out, quite fairly, that Respondent 5
in WP (C) 4380/2024 would not be entitled to this benefit, as he has
superannuated a date prior to 1 January 2018, which was the crucial
date to consider his eligibility for promotion to selection grade. As
such, the relief granted by the learned Tribunal would not extend to
Respondent 5 in WP (C) 4380/2024.
C. HARI SHANKAR, J.
DR. SUDHIR KUMAR JAIN, J.
OCTOBER 21, 2024/aky
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