Kerala High Court
Union Of India vs K.D.Nishad on 6 January, 2025
Author: Amit Rawal
Bench: Amit Rawal
2025:KER:487
OP(CAT)NO.16/2017 & conn. cases
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
MONDAY, THE 6TH DAY OF JANUARY 2025 / 16TH POUSHA, 1946
OP (CAT) NO. 16 OF 2017
AGAINST THE ORDER/JUDGMENT DATED 05.08.2016 IN OA
NO.897 OF 2013 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM
BENCH
PETITIONERS/RESPONDENTS:
1 UNION OF INDIA
REPRESNTED BY ITS SECRETARY TO GOVERNMENT OF
INDIA, MINISTRY OF DEFENCE,
NEW DELHI-110001
2 THE ENGINEER-IN-CHIEF
MILITARY ENGINEER SERVICES,
NEW DELHI-110001
3 THE CHIEF ENGINEER
MILITARY ENGINEER SERVICES,
SOUTHERN COMMAND, PUNE-411001
4 THE CHIEF ENGINEER (NAVAL WORKS)
MILITARY ENGINEER SERVICES,
KOCHI-682004
5 THE CHIEF ENGINEER (R AND D)
MILITARY ENGINEER SERVICES,
SECUNDERABAD-500003
BY ADV SRI.T.V.VINU, CGC
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2
RESPONDENTS/APPLICANTS:
1 P.K.MANOJ
S/O.KOTHA, AGED 41 YEARS,
LOWER DIVISION CLERK, OFFICE OF THE AGE(I) R&D.
KAKKANAD, RESIDING AT PULICKAL HOUSE,
PATTIKKARA, CHIRANEILUR POST, TRICHUR-680501
2 NIJO JOHN
S/O.LATE P.K.JOHN, AGED 31 YEARS, LOWER DIVISION
CLERK, OFFICE OF THE CWE(NW) KOCHI, KATARIBAGH,
NAVAL BASE P.O., KOCHI-682004, PADAYINCHAYIL
HOUSE, PIRAVOM P.O., PIN-686664
3 K.D NISHAD
S/O. K.K.DINESAN, AGED 39 YEARS,
LOWER DIVISION CLERK, OFFICE OF THE CWE (NW)
KOCHI, KATARIBAGH NAVAL BASE P.O., KOCHI-682004,
KUNNATH HOUSE, EDAKOCHI, KOCHI-682010
4 K.K.SASIKUMAR
S/O.LATE K.G.KESAVAN, AGED 58 YEARS,
LOWER DIVISION CLERK, OFFICE OF THE CWE(NW)
KOCHI, KATARIBAGH, NAVAL BASE P.O.,
KOCHI-682004, KULANGARA HOUSE, PATTANAM,
VADAKKEKARA, PIN-683522.
BY ADV SRI.R.SREERAJ
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON
06.01.2025, ALONG WITH OP (CAT).69/2017, 70/2017 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2025:KER:487
OP(CAT)NO.16/2017 & conn. cases
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
MONDAY, THE 6TH DAY OF JANUARY 2025 / 16TH POUSHA, 1946
OP (CAT) NO. 69 OF 2017
AGAINST THE ORDER/JUDGMENT DATED 05.08.2016 IN OA
NO.913 OF 2013 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM
BENCH
PETITIONERS/RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT OF
INDIA, MINISTRY OF DEFENCE, NEW DELHI-110 001.
2 THE ENGINEER-IN-CHIEF
MILITARY ENGINEER SERVICES,NEW DELHI-110 001.
3 THE CHIEF ENGINEER
MILITARY ENGINEER SERVICES,
SOUTHERN COMMAND, PUNE-411 001.
BY ADV SRI.T.V.VINU, CGC
RESPONDENTS/APPLICANTS:
1 R.S. MINI VIJAYAN
W/O.LATE K.VIJAYAKUMAR, AGED 43 YEARS
LOWER DIVISION CLERK, O/O THE GARRISON
ENGINEER(AF), PULAYANARKOTTA, THURUVIKKAL POST,
TRIVANDRUM-695 031, RESIDING AT SREENILAYAM,
MSRA 130, MANCHADI, THACHOOTUKAVU,
MALAYANKIZHU POST, TRIVANDRUM-71.
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2 K.REKHA
W/O.K.GOPAKUMAR, AGED 38 YEARS
LOWER DIVISION CLERK, O/O ADDITIONAL CHIEF
ENGINEER(LAISON),HQ SOUTHERN AIR COMMAND,
INDIAN AIR FORCE,AKKULAM, TRIVANDRUM-11,
RESIDING AT SHIVAM,TC 2019/1, PULAYANARKOTTA,
THIRUVIKKAL POST,TRIVANDRUM-695031.
3 B.RADHAKRISHNAN NAIR
AGED 36 YEARS,
LOWER DIVISION CLERK, O/O THE GARRISON ENGINEER
(AF)PULAYANARKOTTA, THURUVIKKAL POST,
TRIVANDRUM-695 031, RESIDING AT SUDHALAYAM,
TC 7/1934, SREE CHITRA NAGAR,HOUSE NO.D-30,
PANGODE, THIRUMALA POST,TRIVANDRUM-695 008.
4 K.O.THULASIDEVI
W/O.V.RAMESH, AGED 42 YEARS
LOWER DIVISION CLERK, O/O THE GARRISON
ENGINEER(ARMY),THIRUMALA POST, TRIVANDRUM-695
006,RESIDING AT ROHINI, AKKULAM,
VIZHINJAM POST,TRIVANDRUM-695 521.
5 J.P.BINDHULEKHA
D/O.A.JAGADHAMMA, AGED 37 YEARS
LOWER DIVISION CLERK, O/O THE COMMANDER WORKS
ENGINEER(AF),HQ SOUTHERN AIR COMMAND COMPLEX,
AKKULAM, TRIVANDRUM-11, RESIDING AT UNNI
BHAVAN,CHEMMANNUVILA, PUNNAMOODU,
PALLICHAL, TRIVANDRUM.
BY ADV SRI.R.SREERAJ
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON
06.01.2025, ALONG WITH OP (CAT).16/2017 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:487
OP(CAT)NO.16/2017 & conn. cases
5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
MONDAY, THE 6TH DAY OF JANUARY 2025 / 16TH POUSHA, 1946
OP (CAT) NO. 70 OF 2017
AGAINST THE ORDER/JUDGMENT DATED 05.08.2016 IN OA
NO.914 OF 2013 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM
BENCH
PETITIONERS/RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT OF
INDIA,MINISTRY OF DEFENCE, NEW DELHI - 110001.
2 THE ENGINEER-IN-CHIEF
MILITARY ENGINEER SERVICES, NEW DELHI - 110001.
3 THE CHIEF ENGINEER
MILITARY ENGINEER SERVICES, SOUTHERN COMMAND,
PUNE-400 001.
4 THE COMMANDER WORKS ENGINEERS EZHIMALA
MILITARY ENGINEERS SERVICES, INDIAN NAVAL
ACADEMY, EZHIMALA P.O., KANNUR - 670310.
BY ADV SRI.T.V.VINU, CGC
RESPONDENTS/APPLICANTS:
1 V V MANOJ
S/O.A.V.DAMODARAN,
AGED 33 YEARS
LOWER DIVISION CLERK,
O/O THE GARRISON ENGINEER(P) NO.2,
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EZHIMALA, INDIAN NAVAL ACADEMY,
EZHIMALA P.O., KANNUR - 670 310,
RESIDING AT VALLYAVEETIL HOUSE,
NERUVAMBRAM,PAYANGADI P.O., KANNUR - 670 303.
2 A.L.PRIYA
D/O LAKSHMANAN NAIR, AGED 32 YEARS
LOWER DIVISION CLERK, O/O THE GARRISON
ENGINEER(P) NO 2 EZHIMALA, INDIAN NAVAL ACADEMY,
EZHIMALA P.O.,KANNUR-670 310, RESIDING AT
AROMKUZHIYIL HOUSE,CHAKKAMPUZHA P.O.,
EDAKKOLY, KOTTAYAM - 686574.
3 M.SAJITH
S/O.K.GOPI, AGED 36 YEARS
LOWER DIVISION CLERK,O/O THE GARRISON ENGINEER
(P) NO.1, EZHIMALA,INDIAN NAVAL ACADEMY EZHIMALA
P.O., KANNUR-670 310, RESIDING AT DIVYLAYAM,
PINARAYI P.O., THALASSERY VIA, KANNUR - 670 741.
4 P.V.RAVIKUMAR
S/O.C.GOPALAKRISHNAN, AGED 28 YEARS
LOWER DIVISION CLERK, O/O THE GARRISON
ENGINEER(P) NO 2 EZHIMALA, INDIAN NAVAL ACADEMY
EZHIMALA P.O., KANNUR-670 310, RESIDING AT
CHENAMBATH HOUSE,KUNHIMANGALAM,
KOVVAPPURAM P.O.,KANNUR - 670 309.
5 HIMAGIRI MUNAKALA
S/O.BHAVANI SANKAR REDDY, AGED 34 YEARS
LOWER DIVISION CLERK, O/O THE GARRISON ENGINEER
(P) NO.2 EZHIMALA, INDIAN NAVAL ACADEMY,EZHIMALA
P.O., KANNUR-670310,RESIDING AT KUPPIL (VILL) &
(PO), MURAPAKA VIA,SRIKAKULAM DISTRICT,
ANDHRA PRADESH-532430.
6 C.A.AJESH
S/O.C.K.AYYAPPAN, AGED 32 YEARS
LOWER DIVISION CLERK, O/O COMMANDER
WORKS,ENGINEERS EZHIMALA, INDIAN NAVAL
ACADEMY,EZHIMALA P.O., KANNUR - 670310,
RESIDING AT CHAKKANDATH HOUSE,
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MANALUR P.O.,THRISSUR-680617.
7 DIPUKUMAR ODAMUTTIL
S/O. I CHANDU, AGED 33 YEARS
LOWER DIVISION CLERK, O/O THE GARRISON
ENGINEER(P) NO.1 EZHIMALA, INDIAN NAVAL ACADEMY,
EZHIMALA P.O.,KANNUR-670310, RESIDING AT ODAMUTI
HOUSE,PINANGODE P.O., KALPATA, WAYNAD-673121.
8 P.V.NAVIN
S/O.P.SATHYANANTHAN, AGED 33 YEARS
LOWER DIVISION CLERK O/O THE COMMANDER
WORKS,ENGINEERS EZHIMALA, INDIAN NAVAL ACADEMY
EZHIMALA P.O., KANNUR-670310, RESIDING ATKAILASH
BHAVAN, PALLIKKUNNU P.O.,KANNUR - 670004.
9 M.K.SUGUNAN
S/O.KUNJAN VAVA, AGED 45 YEARS
LOWER DIVISION CLERK O/O THE COMMANDER WORKS
ENGINEERS EZHIMALA,INDIAN NAVAL ACADEMY EZHIMALA
P.O.,KANNUR - 670310, RESIDING AT MATHUNNITHARA
HOUSE,KAITHARAM P.O., NORTH PARAVOOR,
ERNAKULAM - 683519.
10 K.JAYAKUMARAN
S/O.LATE K.MADHAVAN PILLAI, AGED 51 YEARS
LOWER DIVISION CLERK, O/O THE COMMANDER WORKS
ENGINEERS EZHIMALA, INDIAN NAVAL ACADEMY,
EZHIMALA (P.O) KANNUR - 670310, RESIDING AT
VARADHA, BALADUKKA, CHENGALA P.O.,
CHERKALA, KASARAGOD-671541.
ADV. R. SREERAJ
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON
06.01.2025, ALONG WITH OP (CAT).16/2017 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:487
OP(CAT)NO.16/2017 & conn. cases
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
MONDAY, THE 6TH DAY OF JANUARY 2025 / 16TH POUSHA, 1946
OP (CAT) NO. 102 OF 2017
AGAINST THE ORDER/JUDGMENT DATED 05.07.2016 IN OA
NO.607 OF 2014 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM
BENCH
PETITIONERS/RESPONDENTS IN OA:
1 UNION OF INDIA,
REPRESENTED BY ITS SECRETARY,
MINISTRY OF DEFENCE, SOUTH BLOCK,
NEW DELHI -110 011.
2 THE ENGINEER - IN -CHIEF,
MILITARY ENGINEERING SERVICES ARMY HEAD QUARTERS,
DHQ PO, NEW DELHI -110 011.
3 THE CHIEF ENGINEER,
MILITARY ENGINEERING SERVICES HEAD
QUARTERS,SOUTHERN COMMAND,PUNE- 411 011.
4 THE CHIEF ENGINEER( NAVAL WORKS) KOCHI,
KARATIBAGH, NAVAL BASE,KOCHI-682 004.
SRI.T.V.VINU - CGC
RESPONDENTS/APPLICANTS IN O.A.:
1 P. RADHAMMA
W/O. R REGHU, LOWER DIVISION CLERK,
O/O THE CE(NW) KOCHI, RESIDING AT CHANDRABHAVAN,
NEDUNGADAPPALLY P.O, KOTTAYAM -686 545.
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2 RAJI JAYAN
W/O. C.G JAYAN, LOWER DIVISION CLERK, O/O THE CE
(NW) KOCHI, RESIDING AT CHEMBAKASSERIL HOUSE,
KOCHUKADAVANTHRA,KADAVANTHRA- 682 020.
3 V.P SARITHAKUMARI
W/O. V.G SURENDRAN,
LOWER DIVISION CLERK, O/O THE CE (NW) KOCHI,
RESIDING AT GOKULAM, H.NO.19/179-A,
PALLURUTHY P.O, KOCHI -682 006.
4 MANJU LIJU
W/O. LIJU THOMAS,
LOWER DIVISION CLERK, O/O THE GE (NW),
SOUTH KOCHI, RESIDING AT 'THOMAS VILLA',
KOTTARKAVU, MAVELIKKARA POST,
MAVELIKKARA- 690 101.
SRI.R.SREERAJ
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON
06.01.2025, ALONG WITH OP (CAT).16/2017 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:487
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
MONDAY, THE 6TH DAY OF JANUARY 2025 / 16TH POUSHA, 1946
OP (CAT) NO. 199 OF 2017
AGAINST THE ORDER/JUDGMENT DATED 10.01.2017 IN OA
NO.10 OF 2015 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM
BENCH
PETITIONER/RESPONDENTS 1 TO 5 IN OA:
1 UNION OF INDIA
REPRESENTED BY ITS SECRETARY TO THE GOVERNMENT OF
INDIA, MINISTRY OF DEFENCE, NEW DELHI - 110 001.
2 THE ENGINEER-IN-CHIEF
MILITARY ENGINEERING SERVICES,
NEW DELHI - 110 001.
3 THE CHIEF ENGINEER
HEADQUARTERS SOUTHERN COMMAND,MILITARY
ENGINEERING SERVICES, PUNE - 411 001.
4 THE CHIEF ENGINEER NW
MILITARY ENGINEERING SERVICES,
NAVAL BASE, KOCHI - 682 004.
5 THE COMMANDER WORKS ENGINEERS
MILITARY ENGINEERING SERVICES,
NAVAL BASE, KOCHI - 682 004.
BY ADVS.
ASSISTANT SOLICITOR GENERAL
SRI.T.V.VINU, CGC
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RESPONDENT/APPLICANTS 1 TO 3 IN THE OA:
1 K.D.NISHAD
S/O.K.K.DINESAN,
LOWER DIVISION CLERK,O/O.THE CE (NW), KOCHI,
KATARIBAGH,NAVAL BASE P.O., KOCHI - 682
004,RESIDING AT KUNNATH HOUSE,EDAKOCHI,
KOCHI - 682 010.
2 A.L.PRIYA
W/O.HARIKUMAR K.NAIR, LOWER DIVISION CLERK,
O/O.THE GE(NW), KOCHI, KATARIBAGH,
NAVAL BASE P.O., KOCHI - 682 004,
RESIDING AT AROMKUZHIYIL HOUSE,
CHAKKAMPUZHA P.O., EDAKKOLY,
KOTTAYAM - 686 574.
3 N.G.SUDHEER
S/O.P.C.GOPALAN (LATE),
LOWER DIVISION CLERK,O/O.THE GE(NW), KOCHI,
KATARIBAGH,NAVAL BASE P.O., KOCHI - 682
004,RESIDING AT NEDUMPARAMBIL HOUSE,
KALOOR, KOCHI - 17.
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON
06.01.2025, ALONG WITH OP (CAT).16/2017 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
[OP (CAT) Nos.16/2017, 69/2017, 70/2017, 102/2017,
199/2017]
Amit Rawal, J.
1. This order shall dispose of five(5) OP(CAT)s,
OP (CAT) Nos.16/2017, 69/2017, 70/2017 arising out of
common judgment and O.P.CAT)Nos.102 of 2017 and
199/2017 on another separate judgments, but on the same
reasoning.
2. Succinctly the facts in dispute for
adjudication of the controversy are enumerated
hereinbelow:
Respondents - applicants were working in Group-D
posts having different pay scale and were governed by the
Military Engineering Services (Assistant, Upper Division
Clerk and Lower Division Clerk) Recruitment Rules, 1999.
The aforementioned Rules, on 18.08.2004, were revised and
were renamed as Military Engineering Services "Group C"
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(Assistant, Upper Division Clerk and Lower Division Clerk)
Recruitment Rules, 2004. The percentage of Group D to LDC
(Group C) increased from 10% to 15% and 10% quota was
through Departmental Examination introduced for the first
time and 5% seniority quota. The process of conduct of
examination commenced in 2007 and ultimately was held in
February, 2009, and thereafter, in 2010 the Departmental
Promotion Committee, considered the promotion from
Group D to Group C, that is LDC, for the vacancies for 2004-
2005 to 2008-2009 and promotion panel was issued.
Ultimately all the respondents were promoted. The
grievance of the respondents - applicants in short was that
for the next promotional post of Upper Division Clerk, had
there not been delay for the department in holding the
Departmental Promotion Committee (DPC) in view of the
amendment in the Rules in 2004, they would not have been
required to wait for another five(5) for sitting in the
examination; in other words, would be eligible without
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waiting for another five(5) years.
3. Considering the aforementioned aspects, the
Tribunal in Paragraph Nos.8 to 10 of the judgment dated
5.8.2016 allowed the O.As, out of which three OP(CAT)s
have arisen, in the following manner:
8. It is pointed out that in an identical case, namely OA
355/2011, which was followed in OA 607/2014, it was held
by this Tribunal that the applicants are entitled to be
notionally promoted to the cadre of LDC w.e.f. the date of
occurrence of vacancies, against which they were
subsequently promoted, for the purpose of granting them
the eligibility/qualifying service to appear in the limited
competitive examination for promotion to the next higher
post, if they are otherwise eligible. The respondents would
contend that as can be seen from MAl the vacancy position
of LDC against 10% quota as aforesaid is seen reflected in
the table. For the vacancy year 2004-05 the total vacancy
was 11, in 2005-06 total number of vacancy was 27, in
2006-07 the total number of vacancy was 29, for 2007-08
total vacancies were 10 and for the year 2008-09 the
number of vacancy was 3 and thus the total vacancy
comes to 80.
9. The dispute is only regarding non-convening of the DPC
at the relevant time. There were vacancies to be filled up
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during the years 2004 to 2009. Had prompt action been
taken for conducting the examination and for convening
the DPCs for filling up the exiting vacancy, then certainly
the Group D employees would have got promotion as LDC
during the relevant years itself. There would be no doubt
that for the purpose of effecting promotion, procedural
formalities are to be complied with. Reasonable time would
be required for that purpose. Since we have already found
that the applicants are not entitled to claim monetary
benefits, but it is intended only to count the length of
service for the purpose of enabling them to satisfy the
eligibility conditions for promotion to the next higher post,
we hold that the applicants are entitled to be notionally
treated as promoted from the date of occurrence of
vacancies, provided the applicants had otherwise acquired
the eligibility conditions for being promoted as LDC. The
applicants are not entitled to get monetary benefits
consequent on this notional promotion which is to take
effect from the respective vacancy years.
10. As per the recruitment rules of 1999, the eligibility for
promotion under 10% quota was only tenth standard pass
plus five years regular service to become LDC from Group
D It is not disputed that the 4th applicant in O.A 897/2013
cannot get the benefit of what have been stated earlier
because the 4th applicant had expressed his unwillingness
earlier and since he had already waived his right for
promotion, he cannot aspire for promotion just like the
other applicants. Therefore, the claim made by the 4th
applicant has to be turned down. We do so. Other
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applicants in this OA (OA 897/2003) are entitled to get
notional promotion from the date of occurrence of
vacancies against which they were subsequently
promoted."
On perusal of the aforementioned finding, it is evident that
the pith and substance of the judgment though had been on
merit but also on the basis of the decision rendered in O.A.
Nos.355/2011 and 607/2014.
4. Sri.T.V.Vinu, learned counsel appearing on
behalf of the Union of India submitted the promotion from
the retrospective date is not a fundamental right as has
been held by the Supreme Court in Bihar State Electricity
Board and Others v. Dharamdeo Das [Civil Appeal
No.6977 of 2015. decided on 23.07.2024] wherein entire
case law on this point has been observed and in paragraph
Nos.18 and 19 held as under:
18. It is no longer res integra that a promotion is effective
from the date it is granted and not from the date when a
vacancy occurs on the subject post or when the post itself is
created. No doubt, a right to be considered for promotion has
been treated by courts not just as a statutory right but as a
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fundamental right, at the same time, there is no fundamental
right to promotion itself. In this context, we may profitably cite
a recent decision in Ajay Kumar Shukla vs. Arvind Rai
where, citing earlier precedents in Director, Lift Irrigation
Corporation Ltd. vs. Pravat Kiran Mohanty and
Others10 and Ajit Singh and Others vs. State of Punjab and
Others11, a three Judge Bench observed thus:
41. This Court, time and again, has laid emphasis on right to
be considered for promotion to be a fundamental right, as
was held by K. Ramaswamy, J., in Director, Lift Irrigation
Corpn. Ltd. v. Pravat Kiran Mohanty and Others9 in para 4 of
the report which is reproduced below:
"4...........There is no fundamental right to promotion,
but an employee has only right to be considered for
promotion, when it arises, in accordance with relevant
rules. From this perspective in our view the conclusion
of the High Court that the gradation list prepared by the
corporation is in violation of the right of respondent-
writ petitioner to equality enshrined under Article 14
read with Article 16 of the Constitution, and the
respondent-writ petitioner was unjustly denied of the
same is obviously unjustified."
42. A Constitution Bench in Ajit Singh and Others v. State of
Punjab and Others, laying emphasis on Article 14 and Article
16(1) of the Constitution of India held that if a person who
satisfies the eligibility and the criteria for promotion but still
is not considered for promotion, then there will be clear
violation of his/her's fundamental right. Jagannadha Rao, J.
speaking for himself and Anand, C.J., Venkataswami,
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Pattanaik, Kurdukar, JJ., observed the same as follows in
paras 22 and 27 :
(2022) 12 SCC 579 (1991) 2 SCC 295 (1999) 7 SCC 209
CIVIL APPEAL NO. 6977 OF 2015
"Articles 14 and 16(1) : is right to be considered for
promotion a fundamental right
22. Article 14 and Article 16(1) are closely connected.
They deal with individual rights of the person. Article 14
demands that the 'State shall not deny to any person
equality before the law or the equal protection of the
laws'. Article 16(1) issues a positive command that:
'there shall be equality of opportunity for all citizens in
matters relating to employment or appointment to any
office under the State'.
It has been held repeatedly by this Court that clause
(1) of Article 16 is a facet of Article 14 and that it takes
its roots from Article 14. The said clause particularises
the generality in Article 14 and identifies, in a
constitutional sense "equality of opportunity" in
matters of employment and appointment to any office
under the State. The word "employment" being wider,
there is no dispute that it takes within its fold, the
aspect of promotions to posts above the stage of initial
level of recruitment. Article 16(1) provides to every
employee otherwise eligible for promotion or who
comes within the zone of consideration, a fundamental
right to be "considered" for promotion. Equal
opportunity here means the right to be "considered"
for promotion. If a person satisfies the eligibility and
zone criteria but is not considered for promotion, then
there will be a clear infraction of his fundamental right
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to be "considered" for promotion, which is his personal
right.
"Promotion" based on equal opportunity and seniority
attached to such promotion are facets of fundamental
right under Article 16(1)
***
27. In our opinion, the above view expressed in
Ashok Kumar Gupta [Ashok Kumar Gupta v. State of
U.P. , and followed in Jagdish Lal [Jagdish Lal v. State
of Haryana13, and other cases, if it is intended to lay
down that the right guaranteed to employees for
being "considered" for promotion according to
relevant rules of recruitment by promotion (i.e.
whether on the basis of seniority or merit) is only a
statutory right and not a fundamental right, we
cannot accept the proposition. We have already stated
earlier that the right to equal opportunity in the
matter of promotion (1997) 5 SCC 201 (1997) 6 SCC
a right to be "considered" for promotion is indeed a
fundamental right guaranteed under Article 16(1) and
this has never been doubted in any other case before
Ashok Kumar Gupta [Ashok Kumar Gupta v. State of
U.P.11], right from 1950."
19. A similar view has also been expressed earlier hereto in
K.V. Subba Rao and Others vs. Government of Andhra Pradesh
and Others14, Union of India and Others vs. K.K. Vadera and
Others15, Sanjay Kumar Sinha-II and Others vs. State of Bihar
and Others16, State of Uttaranchal and Others vs. Dinesh
Kumar Sharma17, Nirmal Chandra Sinha6 (supra) and recently
2025:KER:487
OP(CAT)NO.16/2017 & conn. cases
in Manpreet Singh Poonam7 (supra).
5. The controversy in the present case is
squarely covered under the aforementioned finding that no
fault can be attributed on the department of not holding the
departmental examination giving cause to the employees for
claiming the retrospective promotion much less notional
promotion.
6. On the other hand, learned counsel
appearing on behalf of the respondents - applicants
submitted that the employees were not at fault as they were
eagerly waiting for undertaking the departmental
examination for, they had not challenged the revision of the
Recruitment Rules caused in 2004. But owing to the lapse
of the department almost six(6) years were wasted,
therefore they have to be granted the notional benefit as it
had already been done inter-partes which order has not
been assailed before this Court, similar treatment is required
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to be granted to the respondents - applicants by dismissing
the O.P.(CAT)s with exemplary costs.
7. We have heard the learned counsel for the
parties and appraised the paper books.
8. Paragraph Nos.22 and 23 of the judgment in
Bihar State Electricity Board and Others v. Dharamdeo
Das also is extracted hereunder:
22. The spirit behind elevating the right for being considered
for promotion to a fundamental right is enshrined in the
principle of "equality of opportunity" in relation to matters of
employment and appointment to a position under the State.
Once employed, the employees are entitled for being
considered for promotion to the next higher post subject to
their satisfying the eligibility criteria, as per the applicable rules.
Failure to consider an employee for promotion even after
satisfying the eligibility criteria would violate her fundamental
right. However, a clear distinction has been drawn between the
stage of considering an employee for being promoted to taking
the next step of recognizing the said right as a vested right for
promotion. That is where the line has to be drawn. Stated
differently, a right to be considered for promotion being a facet
of the right to equal opportunity in employment and
appointment, would have to be treated as a fundamental right
guaranteed under Articles 14 and 16(1) of the Constitution of
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India but such a right cannot translate into a vested right of the
employee for being necessarily promoted to the promotional
post, unless the rules expressly provide for such a situation.
23. The view that seniority can neither be reckoned from the
date when a vacancy arises, nor can it be granted
retrospectively unless the service rules specifically provide for
such a situation, is fortified by the decision of this Court in K.K.
Vadera14 (supra) which has emphasised in no uncertain terms
the settled position in law that promotion to a post should only
be granted from the date of the promotion and not from the
date on which a vacancy may have arisen. In Ganga Vishan
Gujarati vs State of Rajasthan23, this Court had reiterated the
principle that retrospective seniority cannot be granted to an
employee from (2019) 16 SCC 28 CIVIL APPEAL NO. 6977 OF
2015 the date when she was not even borne on the cadre. This
principle has been built upon by a line of precedents starting
with the decision of the Constitution Bench of this Court in
Direct Recruit Class II Engg. Officers' Assn. v. State of
Maharashtra24, followed in Akhouri Sachindra Nath17 (supra),
Dinesh Kumar Sharma16 (supra) and several other cases.
9. The controversy in the aforementioned case
was also with regard to the claim of notional
promotion/retrospective promotion. While noticing all the
judgments on this point, it has been held that the promotion
is not a fundamental right. Though no doubt the seniority of
2025:KER:487
OP(CAT)NO.16/2017 & conn. cases
the employees would be reckoned from the date when the
vacancy arose, that is from 2004, but the fact remains that
since the examination was not held cannot be granted the
promotion from the date of occurrence of vacancy, owing to
the fact that under the revised Rules, the examinations were
ultimately held in 2009, even if the department had taken
the process earlier. Thus, we are of the view that the
findings of the Tribunal based upon the findings in some
earlier O.As. cannot be permitted to sustain. Orders
impugned are set aside.
Petitions stand allowed.
Sd/-
AMIT RAWAL
JUDGE
Sd/-
K. V. JAYAKUMAR
JUDGE
nak
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APPENDIX OF OP (CAT) 69/2017
PETITIONER ANNEXURES
ANNEXURE A1 TRUE COPY OF THE LETTER NO
150101/4-B/GP'D TO LDC/1622/E1B(R-DPC)
DATED 6.5.2010
ANNEXURE A2 TRUE EXTRACT OF THE GOVERNMENT OF
INDIA, DEPARTMENT OF PERSONNEL &
TRAINING OM NO 22011/3/91 ESTT(D)DATED
13.5.1991
ANNEXURE A3 TRUE EXTRACT OF THE GOVERNMENT OF
INDIA, DEPARTMENT OF PERSONNEL &
TRAINING OM NO 22011/9/89-ESTT(D) DATED
17.10.1994
ANNEXURE A4 TRUE COPY OF THE 1999 RECRUITMENT RULES
FOR THE POST OF LOWER DIVISION CLERK
ANNEXURE A5 TRUE COPY OF THE 2004 RECRUITMENT RULES
FOR THE POST OF LOWER DIVISION CLERK
ANNEXURE A6 TRUE COPY OF THE FINAL ORDER DATED
8.9.2004 IN OA NO 967/2013 ON THE FILE
OF THIS HON'BLE TRIBUNAL
ANNEXURE A7 TRUE COPY OF THE LETTER NO
150101/4-B/GP 'D' TO LDC/1904(R-DPC_
DATED 5.3.2005
ANNEXURE A8 TRUE COPY OF THE REPLY STATEMENT IN OA
111/2009 ON THE FILE OF THIS HON'BLE
TRIBUNAL
ANNEXURE A9 TRUE COPY OF THE SENIORITY LIST OF LDCS
CIRCULATED A PER HQ LETTER NO
150153/LDC/2/E1B(R-DPC) DATED 2.3.2013
ANNEXURE A10 TRUE COPY OF THE REPRESENTATION DATED
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OP(CAT)NO.16/2017 & conn. cases
6.6.2013 SUBMITTED BY THE 1ST APPLICANT
EXHIBIT P1 : TRUE COPY OF THE OA NO.913/2013 DATED
9-9-2013 FILED BY THE RESPONDENT BEFORE
THE CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
EXHIBIT P2 : TRUE COPY OF THE REPLY STATEMENT IN OA
NO.913/2013 DATED 27-11-2013 FILED BY
THE PETITIONERS.
EXHIBIT P3 : TRUE COPY OF COMMON ORDER IN OA
NO.913/2013 AND CONNECTED CASES DATED
5-8-2016 OF THE CENTRAL ADMINISTRATIVE
TRIBUNAL, ERNAKULAM BENCH.
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OP(CAT)NO.16/2017 & conn. cases
APPENDIX OF OP (CAT) 70/2017
PETITIONER ANNEXURES
ANNEXURE A1 TRUE COPY OF THE LETTER NO. 150101/4/-
B/GP 'D' TO LDC/1622 (E1B(R-DPC) DATED
6.5.2010.
ANNEXURE A1(A) TRUE COPY OF THE LETTER NO. 132402/26-
D/454/E1B(S)/A1 DATED 6.7.2012.
ANNEXURE A2 TRUE EXTRACT OF THE GOVERNMENT OF
INDIA, DEPARTMENT OF PERSONNEL AND
TRAINING OM NO. 22011/3/91/ESTT (D)
DATED 13.5.1991.
ANNEXURE A3 TRUE EXTRACT OF THE GOVERNMENT OF
INDIA, DEPARTMENT OF PERSONNEL AND
TRAINING OM NO. 22011/9/89-ESTT (D)
17.10.1994.
ANNEXURE A4 TRUE COPY OF THE 1999 RECRUITMENT RULES
FOR THE POST OF LOWER DIVISION CLERK.
ANNEXURE A5 TRUE COPY OF THE 2004 RECRUITMENT RULES
FOR THE POST OF LOWER DIVISION CLERK
ANNEXURE A6 TRUE COPY OF THE FINAL ORDER DATED
8.9.2004 IN OA NO. 967/2013 ON THE FILE
OF THIS HON'BLE TRIBUNAL.
ANNEXURE A7 TRUE COPY OF THE LETTER NO. 150101/4-
B/GP D TO LDC/1904 EIB (R-DPC) DT.
5.3.2005.
ANNEXURE A8 TRUE COPY OF THE REPLY STATEMENT IN OA
111/2009 ON THE FILE OF THE TRIBUNAL.
ANNEXURE A9 TRUE COPY OF THE SENIORITY LLIST OF
LDC'S CIRCULATED AS PER HQ LETTER NO.
150153/LDC/2/E1B(R-DPC) DATED
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OP(CAT)NO.16/2017 & conn. cases
02.03.2013
ANNEXURE A10 TRUE COPY OF THE REPRESENTATION DATED
06.06.2013 DATED 27.11.2013, FILED BY
THE PETITIONERS.
EXHIBIT-P1: TRUE COPY OF THE OA NO.914/2013 DATE
08.09.2013, FILED BY THE RESPONDENT
BEFORE THE CENTRAL ADMINISTRATIVE
TRIBUNAL, ERNAKULAM BENCH.
EXHIBIT-P2: TRUE COPY OF THE REPLY STATEMENT IN OA
NO.914/2013 DATED 27.11.2013, FILED BY
THE PETITIONERS.
EXHIBIT-P3: TRUE COPY OF COMMON ORDER IN OA
NO.914/2013 AND CONNECTED CASES DATED
05.08.2016 OF THE CENTRAL
ADMINISTRATIVE TRIBUNAL, ERNAKULAM
BENCH.
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OP(CAT)NO.16/2017 & conn. cases
APPENDIX OF OP (CAT) 102/2017
PETITIONER ANNEXURES
ANNEXURE A1 TRUE COPY OF THE FINAL ORDER DATED
12.6.2012 IN OA 355/2011 ON THE FILE OF
THE CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH.
ANNEXURE A2 TRUE COPY OF THE ORDER DATED 4.12.2013
IN CONTEMPT PETITION (CIVIL) 55/2013 ON
THE FILE OF THE CENTRAL ADMINISTRATIVE
TRIBUNAL, ERNAKULAM BENCH.
ANNEXURE A3 TRUE COPY OF THE REPRESENTATION DATED
3.3.2014 SUBMITTED BY THE ONE OF THE
APPLICANTS TO THE 3RD RESPONDENT.
ANNEXURE A4 TRUE COPY OF THE LETTER
NO.120070/LDC/1562/E1B(S) DATED
26.6.2014 ISSUED ON BEHALF OF THE 4TH
RESPONDENT.
ANNEXURE A5 TRUE COPY OF THE LETTER
NO.150101/4-B/GP 'D' TO LDC/1094/EIB(R-
DPC) DATED 5.3.2005 ISSUED ON BEHALF OF
THE 3RD RESPONDENT ALONG WITH THE PANEL
APPENDED TO IT.
ANNEXURE A6 TRUE COPY OF THE LETTER
NO.132402/22/3183/EIB(S)/A1 DATED
24.4.2014 ISSUED ON BEHALF OF THE 3RD
RESPONDENT.
ANNEXURE A7 TRUE COPY OF THE RELEVANT PORTION OF
THE COMMAND SENIORITY LIST OF LDC AS
PER PHYSICAL REPORTING DATED AS
1.1.2014.
ANNEXURE R1 TRUE COPY OF HQ CME PUNE LETTER
NO.0853/LDC TO UDC/RESULT II/57/MES
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OP(CAT)NO.16/2017 & conn. cases
DATED 03.12.2013.
ANNEXURE R2 TRUE COPY OF HQ CE SC LETTER
NO.150101/LDC/2013-14/97/E1B (R-DPC)
DATED 24.01.2014.
ANNEXURE R3 TRUE COPY OF HQ CE SC LETTER
NO.132402/26/3163/E1B(S)/A-1 DATED
13.03.2014.
ANNEXURE R4 TRUE COPY OF SRO 129 DATED 18.08.2004.
ANNEXURE R5 TRUE COPY OF HQ CE SC LETTER
NO.150101/4/LDC/2014-15/29/E1B9R-DP)
DATED 04.04.2014.
ANNEXURE R6 TRUE COPY OF HQ CE SC LETTER
NO.132402/26/3164/E1B(S)A-1 DATED
30.4.2014.
ANNEXURE R7 TRUE COPY OF SRO 27 OF 08.05.2013.
EXHIBIT P1 TRUE COPY OF THE OA NO 180/607/2014
DATED 30-06-2014 FILED BY THE
RESPONDENT BEFORE THE CENTRAL
ADMINISTRATIVE TRIBUNAL, EERNAKULAM
BENCH
EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT IN OA
NO 180/607/2014 DATED 17-10-2014 FILED
BY THE PETITIONERS
EXHIBIT P3 TRUE COPY OF ORDER IN OA NO
180/607/2014 DATED 05.07.2016 OF THE
CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
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OP(CAT)NO.16/2017 & conn. cases
APPENDIX OF OP (CAT) 199/2017
PETITIONER ANNEXURES
ANNEXURE A1 TRUE COPY OF THE RELEVANT PAGES OF SRO-
27 DATED 08.05.2013 IN RESPECT OF
RECRUITMENT RULES FOR THE POST OF UPPER
DIVISION CLERK.
ANNEXURE A2 TRUE COPY OF THE FINAL ORDER DATED
12.06.2012 IN OA NO.355/2011 ON THE
FILE OF THIS HON'BLE TRIBUNAL.
RESPONDENT ANNEXURES
ANNEXURE R1 TRUE COPY OF THE RECUITMENT RULES
PUBLISHED VIDE SRO NO.27 DATED
08.05.2013
ANNEXURE R2 TRUE COPY OF THE E-IN-C'S BRANCH LETTER
NO.B/20976/MES EXAM/E1C (2)/42 DATED
16.12.2014
PETITIONER EXHIBITS
EXHIBIT P1. TRUE COPY OF THE OA NO.18000010/2015
DATED 04.01.2015 FILED BY THE
RESPONDENTS BEFORE THE CAT, ERNAKULAM
BENCH.
EXHIBIT P2. TRUE COPY OF THE REPLY STATEMENT DATED
22.05.2015, FILED BY THE PETITIONERS.
EXHIBIT P3. TRUE COPY OF THE ORDER IN OA
NO.180/00010/2015 DATED 10.01.2017 OF
THE CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH.
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OP(CAT)NO.16/2017 & conn. cases
APPENDIX OF OP (CAT) 16/2017
PETITIONER ANNEXURES
ANNEXURE A13 TRUE COPY OF THE LETTER NO.160101/4-B/GP
'D' TO LDC/REPN/85/E 1B (R-DPC) DATED
21.5.2013.
ANNEXURE A1 TRUE COPY OF THE LETTER NO.150101/4/-B/GP
'D' TO LDC/1622(E1B(R-DPC) DATED
6.5.2010.
ANNEXURE A1 (A) TRUE COPY OF THE LETTER
NO.132402/26-D/454/E1B(S)/A1 DATED
6.7.2012.
ANNEXURE A2 TRUE EXTRACT OF THE GOVERNMENT OF INDIA,
DEPARTMENT OF PERSONNEL AND TRAINING OM
NO.22011/3/91/ESTT.(D) DATED 12.5.1991.
ANNEXURE A3 TRUE EXTRACT OF THE GOVERNMENT OF INDIA,
DEPARTMENT OF PERSONNEL AND TRAINING OM
NO.22011/9/89-ESTT.(D) DATED 17.10.1994.
ANNEXURE A4 TRUE COPY OF THE 1999 RECRUITMENT RULES
FOR THE POST OF LOWER DIVISION CLERK.
ANNEXURE A5 TRUE COPY OF THE 2004 RECRUITMENT RULES
FOR THE POST OF LOWER DIVISION CLERK.
ANNEXURE A6 TRUE COPY OF THE FINAL ORDER DATED
8.9.2004 IN OA 967/2013 ON THE FILE OF
THIS HON'BLE TRIBUNAL.
ANNEXURE A7 TRUE COPY OF THE LETTER
NO.150101/4-B/GP'D' TO LDC/1904(R-DPC)
DATED 5.3.2005.
ANNEXURE A8 TRUE COPY OF THE REPLY STATEMENT IN OA
111/2009 ON THE FILE OF THIS HON'BLE
TRIBUNAL.
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OP(CAT)NO.16/2017 & conn. cases
ANNEXURE A9 TRUE COPY OF THE REPRESENTATION DATED
10.12.2012 SUBMITTED BY THE 1ST
APPLICANT.
ANNEXURE A10 TRUE COPY OF THE REPRESENTATION DATED
29.11.2012 SUBMITTED BY THE 2ND
APPLICANT.
ANNEXURE A11 TRUE COPY OF THE REPRESENTATION DATED
27.11.2012 SUBMITTED BY THE 3RD
APPLICANT.
ANNEXURE A 12 TRUE COPY OF THE REPRESENTATION DATED NIL
SUBMITTED BY THE 4TH APPLICANT.
ANNEXURE A14 TRUE COPY OF THE REPRESENTATION DATED
JULY 2013 SUBMITTED BY THE 2ND APPLICANT.
ANNEXURE A15 TRUE COPY OF THE REPRESENTATION DATED
JULY 2013 SUBMITTED BY THE 3RD APPLICANT.
ANNEXURE A16 TRUE COPY OF THE REPRESENTATION DATED
JULY 2013 SUBMITTED BY THE 4TH APPLICANT.
EXHIBIT P1 TRUE COPY OF THE OA NO.897/2013 DATED
9.9.2013, FILED BY THE RESPONDENT BEFORE
THE CENTRAL ADMINISTRATIVEW TRUBUNAL,
ERNAKULAM BENCH.
EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT IN OA
NO.897/2013 DATED 25.11.2013 FILED BY THE
PETITIONERS
EXHIBIT P3 TRUE COPY OF COMMON ORDER IN OA
NO.897/2013 AND CONNECTED CASES DATED
5.8.2016, OF THE CENTRAL ADMINISTRATIVE
TRIBUNAL, ERNAKULAM BENCH.
