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Judgment
Tarlok Singh Chauhan, J.—A short question which arises for consideration in these writ petitions as to whether despite there being vacancies and because of non-convening of D.P.C.s. within the time schedule, the claim of the petitioners can be defeated only for the reason that they had crossed 57 years of age when the placement order had actually been issued on 20.11.2013, while it is the admitted case of the parties that the panel for promotion to the post of Deputy Director was sent to the Government on 07.05.2013 when the petitioners had not crossed 57 years of age.
In Handbook on Personnel Matters Volume-I (Second Edition) published by the Government of Himachal Pradesh, Chapter 16 relates to promotions and selection grade, Part-A thereof relates to the Departmental Promotion Committees. In terms of Clause 16.7, time schedule for holding meetings of D.P.C. has been provided. The relevant portion whereof reads as under:-
16.7 Time-schedule for holding meetings of D.P.C.
The instructions contained in H.P. Govt. Deptt. of Personnel letter No. 1-13/73-DP(A-II) dated 27-4-1983 (Annexure 16.18) provide that the time schedule for holding of regular Departmental Promotion Committee will be during the month of April-May. The subsequent instructions issued vide letter No. 1-13/75-DP (AP-II) dated 14-2-1984 (Annexure 16.22) provided that meeting of the Departmental Promotion Committee may be held once a year in the month of April every year as far as possible. The latest instructions contained in letter No. 1-13/75-DP (A-II) dated 6-9-1984 and letter No. Per(AP-II) B(3)-1/94 dated 16-11-1994 (Annexures 16.25 and 16.55) provide that meetings of the Departmental Promotion Committees for making promotions should be held during the first quarter of the financial year as far as possible for all the existing and anticipated vacancies. For unanticipated vacancies, fresh meetings of the Departmental Promotion Committees for making promotions should be held during the course of the year within three months from the date of creation of the posts.
(emphasis supplied by us)
In the reply filed by the respondents-State, the only ground taken to reject the claim of the petitioners is that the petitioners had completed more than 57 years of age on the date of determining the eligibility and hence they were found ineligible for being promoted or placed to the posts of Deputy Directors. The respondents sought to justify their action (rather inaction) by raising preliminary submissions in Para Nos. 1 and 2 of their reply which read thus:-
That it is respectfully submitted that the placement/transfer to the post of Deputy Director School Cadre is regulated by the Himachal Pradesh, Education Department, Deputy Director of Education (School & Plus two) Class-I (Gazetted) Recruitment and Promotion Rules 1992, amended on 7.12.2009. The post of Dy. Director is in the identical pay scale/Pay Band of the Principal hence the post is filled up by placement/transfer from amongst the feeder category of Principals (Headmaster Cadre) and Principal (Lecturer Cadre) in the ratio of 60:40. The following provision has been inserted below Rule 11 of the R & P Rules mentioned above, framed under Article 309 of the Constitution of India:-
Provided that only such Principals shall be eligible for transfer/placement who have not completed the age of 57 years on the date of consideration for such transfer/placement.
The Department considered the placement of Principals to the post of Deputy Directors on 13.11.2013 as per the R & P Rules and only those eligible Principals who had not completed the age of 57 years have been placed/transferred to the posts of Dy. Directors. However, no DPC was conducted to place the Principals (schools) to the post of Dy. Directors.
That it is further submitted that the date of birth of the petitioner is 10.05.1956 and he had completed more than 57 years on the date of determining the eligibility, hence found ineligible to be placed as Dy. Director on 13.11.2013 as per existing rules. In view of this the present petition is devoid of merit and deserves to be dismissed in the interest of justice.
It was further contended that "the seniority of Principals from the Headmaster Cadre had been circulated on 26.09.2006 and all the incumbents, who were mentioned in the said notification either were placed as Deputy Directors or retired and the panel had exhausted.
There was no seniority of Principal (Schools) from Headmaster Cadre. The department was seized with the work of regularization, so the seniority could be drawn and eligible persons could be placed accordingly on the basis of seniority. Since the process of regularization was found very lengthy hence the department finally on 13.11.2013 considered placing the Principals from amongst Headmaster Cadre on the basis of seniority in Headmaster Cadre. Accordingly, as per requirement of the rule, the eligibility was determined only of those Principals, who had not completed the age of 57 years on the date of determining the eligibility to the post of Deputy Director.
It was also contended that "since the posts of Principals and Deputy Directors are in identical pay scale/grade pay, hence, the placement is made purely on the basis of seniority as an arrangement in the cadre of Principals to look after administrative work in the field. However, no D.P.C. was held/conducted."
It cannot be denied that the D.P.C. is required to sit every year regularly in accordance with the time schedule stipulated in Clause 16.7 (supra) and the appointing authorities have to initiate action to fill-up the existing as well as anticipated vacancies well in advance of the expiry of the previous panel by collecting relevant documents like A.C.R.s, integrity certificates, seniority lists etc. for placing before the D.P.C. The requirement of holding the D.P.C. within the time can only be dispensed with after a certificate is issued by the appointing authority that there are no vacancies to be filled-up by promotion during the year in question. This was so held by the Hon''ble Supreme Court in Union of India and others Vs. N.R. Banerjee and others, , which reads thus:-
On this factual matrix, it is contended for the appellants that the crucial date for the DPC meeting for selection should be April or May 1995 for selection of candidates to fill up the vacancies of the year 1994-95. The ACRs recorded of all the candidates falling within the zone of consideration and approved by the Government, as on March 31, 1994, are required to be looked into and merits adjudged. The Tribunal, therefore, was not right in directing the Government to ignore the ACRs for the year 1994 and consideration of the candidates eligible by then up to March, 1993. The DPC was to be constituted as on April 1, 1994. Resultantly, the directions were given in paragraphs 25 and 28 for consequential action. Shri Altaf Ahmed, learned Additional Solicitor General, contends that the view of the Tribunal is not correct in law. As per the procedure, preparation of the panel of candidates for consideration by the DPC to fill up the clear vacancies as on April 1994 is necessary. A.C.Rs. are prepared on the basis of the performance during financial year which would be October 1 of the year. In this case, the ACRs of the incumbents are written on the financial year basis. It was approved by the Government on March 31, 1995. Therefore, the DPC could not have got approved ACRs before that date, namely, as held by the Tribunal on March 19, 1993. The direction, therefore, that the DPC in its proceedings should take into consideration ACRs of all the eligible candidates as on April, 1993 is incorrect. Though, prima facie, we are impressed with the arguments of Shri Altaf Ahmed, on deeper probe and on going through the procedure laid by the Ministry of Personnel and Training, we find no force in the contention. Preparation of the action Plan for consideration by the DPC of the respective claims of the officers within the Zone and thereafter for setting in motion the preparation of panel on yearwise basis, is elaborately mentioned. In case of their failure to do so, what further procedure is required to be followed is also indicated in the rules. It thereby manifests the intention of the rule-maker that the appellant-Government should estimate the anticipated vacancies, regular vacancies and also vacancies arising thereafter due to various contingencies and it should also get the ACRs prepared and approved. It is also made clear that the DPC should sit on regular basis to consider the cases of the eligible candidates within the zone of consideration. The object is clear that the Government should keep the panel ready in advance so that the vacancies arising soon thereafter may be filled up from amongst the approved candidates whose names appear in the panel. In that behalf, it is seen that in the guidelines issued by the Government in Part I of clause (49) dealing with Functions and Composition of Departmental Promotion Committee etc. necessary guidelines have been enumerated. It envisages that a post is filled up by promotion where the Recruitment Rules so provide. In making promotions, it should be ensured that suitability of the candidates for promotion is considered in an objective and impartial manner. In other words, the consideration of the candidate is not clouded by any other extraneous considerations like caste, creed, colour, sect, religion or region. In consideration of claims, merit alone should enter into objective and impartial assessments. The object appears to be that the ACRs be written by competent officer and approved by superior officer objectively and impartially without being influenced by any extraneous and irrelevant consideration, to augment efficiency in public service and to improve competence. For the purpose of selection, Department Promotion Committee should be formed in each Ministry/Department/Office, whenever an occasion arises, for promotions/confirmations etc. The DPCs so constituted shall judge the suitability of officers for:
(a) promotions to selection as well as non-selection posts;
(b) confirmation in their respective grades/posts;
(c) assessment of the work and conduct of probationers for the purpose of determining their suitability for retention in service or their discharge from it or extending their probation; and
(d) consideration of cases of Government servants for crossing the Efficiency Bar.
Part II of the guidelines relates to the frequency of meeting of the DPC. Para 3.1 indicates that the DPCs should be convened at regular annual intervals to draw panels which could be utilised for making promotions against the vacancies occurring during the course of a year. In other words, the life of the panel is one year. For this purpose, it is essential for the appointing authorities concerned to initiate action to fill up the existing as well as anticipated vacancies well in advance of the expiry of the previous panel, by collecting relevant documents like ACRs, integrity certificates, seniority list etc. for placing before the DPC.
DPCs should be convened every year, if necessary, on a fixed date, i.e. 1st of April or May. In the middle of the para, by way of amendment brought on May 13, 1995, it postulates that very often action for holding DPC meeting is initiated after the vacancy has arisen. This results in undue delay in filling up of vacancies and causes dissatisfaction among those who are eligible for promotion. It may be indicated that regular meeting of DPC should be held every year for each category of posts so that approved select panel is available in advance for making promotions against vacancies arising every year. Under para 3.2, the requirement of convening annual meetings of the DPC should be dispensed with only after a certificate has been issued by the appointing authority that there are no vacancies to be filled by promotion or no officers are due for confirmation during the year in question. It would, thus, be seen that DPCs are required to sit every year, regularly on or before 1st April or 1st May of the year to fill up the vacancies likely to arise in the year for being filled up. The required material should be collected in advance and merit list finalised by the appointing authorities and placed before the DPCs for consideration. This requirement can be dispensed with only after a certificate is issued by the appointing authority that there are no vacancies to be filled by promotion, or that no officers are due for confirmation, during the year in question.
It would, thus, be seen that the authorities are required to anticipate in advance the vacancies for promotion on regular basis including long term deputation posts and additional posts created and then to take the action plan in finalising the ACRs preparation of the select list and place necessary material before the DPC for consideration of the candidates within the zone of consideration, as are found eligible for the relevant year/years.
However, at the same time, it cannot be denied that the Government is under no obligation to fill-up a vacancy and the empanelled candidates cannot claim any right in their favour only on account of their having been empanelled. This was so held in Union of India and others (supra) wherein it was observed as follows:-
Considered from that perspective, the question arises:
whether the view taken by the Tribunal is justified in law. It is true that filling up of the posts are for clear or anticipated vacancies arising in the year. It is settled law that mere inclusion of one''s name in the list does not confer any right on him/her to appointment. It is not incumbent that all posts may be filled up.
But the authority must act reasonably, fairly and in public interest and omission thereof should not be arbitrary. In Shankarsan Dash Vs. Union of India, the Constitution Bench had held that inclusion of the name of a candidate in a merit list does not confer any right to be selected unless the relevant recruitment rules so indicate. The State is under no legal duty to fill up all or any of the vacancies even though the State acts in an arbitrary manner. In Babita Prasad and Others Vs. State of Bihar and Others, , it was held that mere inclusion of one''s name in the panel does not confer on him/her any indefeasible right to appointment. It was further held that the purpose of making panel was to finalise the list of eligible candidates for appointment. The preparation of the panel should be to the extent of the notified or anticipated vacancies. Unduly wrong panel should not be operated. In Union Territory of Chandigarh Vs. Dilbagh Singh and others, it was held that the mere fact that a candidate''s name finds a place in the select list as a selected candidate for appointment to a post, does not confer on him/her an indefeasible right to be appointed in such post in the absence of any specific rule entitling him to such appointment. In State of Bihar and Others Vs. Secretariat Assistant Successful Examinees Union 1986 and Others, it was held that a person who is selected and empanelled does not on account of empanelment alone acquire any indefeasible right to appointment. Empanelment is, at the best, a condition of eligibility for the purpose of appointment and that by itself does not amount to selection or creation of a vested right to appointment unless relevant rules state to the contrary. However, in the light of the above principles and in the light of the clear rules extracted hereinbefore, it is seen that the exercise of preparation of the panel is undertaken well in advance to fill up the clear vacancies or anticipated vacancies. The preparation and finalisation of the yearly panel, unless duly certified by the appointing authority that no vacancy would arise or no suitable candidate was available, is a mandatory requirement. If the annual panel could not be prepared for any justifiable reason, yearwise panel of all the eligible candidates within the zone of consideration for filling up the vacancies each year should be prepared and appointment made in accordance therewith. In Nagar Mahapalika, Kanpur Vs. Vinod Kumar Srivastava and Others, , this Court had pointed out with respect to the prescription of the limitation of one year of the waiting list thus :
The reason underlying the limitation of the period of list for one year is obviously to ensure that other qualified persons are not deprived of their chances of applying for the post in the succeeding year and being selected for appointment.
In the given facts and circumstances of the case, it cannot be disputed that the petitioners despite they being eligible have been denied promotion, but the question yet remains as to whether in the given facts and circumstances, the petitioners can be given retrospective promotion i.e. promotion from the back date. This proposition of law has been settled by the Hon''ble Supreme Court in plethora of judgments:-
(i) K. Madhavan and Another Vs. Union of India (UOI) and Others, .
(ii) Union of India and Others Vs. K.K. Vadera and others,
(iii) Vinod Kumar Sangal Vs. Union of India (UOI) and Others, .
(iv) Baij Nath Sharma Vs. Hon''ble Rajasthan High Court At Jodhpur and Another,
(v) P.N. Premachandran Vs. The State of Kerala and Others,
(vi) Sanjay K. Sinha-II and Others Vs. State of Bihar and Others,
(vii) State of Uttaranchal and Another Vs. Dinesh Kumar Sharma,
(viii) Nirmal Chandra Sinha Vs. Union of India (UOI) and Others, .
(ix) Union of India (UOI) and Another Vs. Hemraj Singh Chauhan and Others, .
In K. Madhavan and Another Vs. Union of India (UOI) and Others, , the Hon''ble Supreme Court held that nobody can claim a right for appointment to a post as a matter of right. It was held that as a rule retrospective appointment or promotion to a post should not be resorted to unless on a sound reasoning and foundation it becomes necessary to sparingly do so. Insofar as the scheduled D.P.C. is concerned, it observed that only if they were cancelled because of malafide, arbitrarily or without any reasonable justification to the prejudice of an employee, could the Government in such a case be directed to undo the injustice caused and grant promotion from a retrospective date.
Normally, the promotion to the post should be from the date the promotion is granted and not from the date on which such post falls vacant. This was so held by the Hon''ble Supreme Court in Union of India and Others Vs. K.K. Vadera and others, which reads thus:-
5......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. In the same way when additional posts are created, promotions to those posts can be granted only after the Assessment Board has met and made its recommendations for promotions being granted. 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 giving promotions even before the Assessment Board has met and assessed the suitability of the candidates for promotion....
In Baij Nath Sharma Vs. Hon''ble Rajasthan High Court At Jodhpur and Another, , the Hon''ble Supreme Court relying upon the law declared in K.K. Vadera''s case (supra) held that a member of the Rajasthan Judicial Service could not be promoted from the date when the vacancy accrued in the Rajasthan Higher Judicial Service against which vacancy he was ultimately promoted.
This view was reiterated in the decisions reported in Sanjay K. Sinha-II and Others Vs. State of Bihar and Others, , State of Uttaranchal and Another Vs. Dinesh Kumar Sharma, , Nirmal Chandra Sinha Vs. Union of India (UOI) and Others, .
In State of Uttaranchal and Another Vs. Dinesh Kumar Sharma, , it was held that a person appointed on promotion would not get seniority of any earlier year but would get seniority of year in which his/her appointment is made.
From the aforesaid discussion, the following legal position can be culled out:-
i) The normal rule of law is that nobody can be promoted from a retrospective effect except when there exist facts which necessitate so or there is a rule which permits so.
ii) If due to administrative reasons D.P.C. cannot be held in a year, then the person cannot claim retrospective promotion in the absence of malafides since malafides taints every act requiring a person wronged to be placed in the position but for the malafide or tainted exercise of power.
From the contents of the petitions, we find that there is not even a single whisper much less a ground taken by the petitioners attributing malafides against the respondents. Therefore, in the given facts and circumstances, in absence of malafides attributed to the respondents, no retrospective promotions can be ordered.
Resultantly, there is no merit in these petitions and the same are dismissed, so also the pending application(s), if any, leaving the parties to bear their own costs.