Dilbagh Singh vs Union of India and Others

Surya Kant, J.—The petitioner impugns the order dated 01.06.2000 passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh to the extent it holds that the petitioner if found fit for promotion to the post of Superintendent [Operations] w.e.f. 27.02.1992, shall be given such promotion and fixed in the pay scale on notional basis. The petitioner''s claim is that the Tribunal ought to have directed consideration of his promotion claim with all consequential benefits. The facts may be noticed briefly. The petitioner joined the respondent Department as a Senior Technical Assistant on 29.12.1988, whereas private respondents No. 4 and 5 joined the Department as Radio Operators on 10.12.1974 and 14.03.1975 respectively. They were then promoted as Supervisors and then as Communication Assistants in November, 1989 and July, 1990 respectively. On the setting up of Central Board of Excise and Custom in the year 1991, 55 Group "B" posts of Superintendent [Operations] were sanctioned. While respondents No. 4 and 5 were promoted as Superintendent [Operations], the petitioner was ignored. Being aggrieved, he approached the Tribunal who held that [i] respondents No. 4 and 5 were in the feeder cadre of the post which the petitioner was holding, hence were lower in rank and status; [ii] they were promoted on the basis of draft Rules having no statutory force; and [iii] there were statutory Service Rules which ought to have been followed.

Since the respondent-Authorities meanwhile passed an order dated 03.04.2000 promoting the petitioner as Superintendent [Group ''B''] that the Tribunal vide its impugned order dated 01.06.2000 disposed of his Original Application with a direction to consider his claim retrospectively w.e.f. 27.02.1992 when respondents No. 4 and 5 were promoted. The Tribunal, however, directed that in the event of acceptance of the petitioner''s claim, he shall be granted the benefits notionally only.

It may be noticed here that the above stated order of the Tribunal was challenged by Union of India before this Court in CWP No. 346-CAT of 2001 which was dismissed on 10.01.2001 holding as follows:-

The plea of respondent No. 1 that respondents No. 3 and 4 were not eligible, merits consideration in the light of the relevant statutory rules, i.e., the Directorate of Communication [Customs and Central Excise] Group ''C Technical Posts Recruitment Rules, 1978 [for short ''1978 Rules'']. A perusal of these rules shows that the post of Senior Technical Assistant is the only post in Group ''C''. Therefore, only a person holding that post was eligible to be promoted on the post of Superintendent in 1992. At the relevant time, respondent Nos. 3 and 4 were holding the post of Communication Assistant, which is the feeder cadre for the post of Senior Technical Assistant. Therefore, they were not eligible to be promoted as Superintendent [Operation] and the Tribunal has correctly held that their promotion was illegal

It is urged by the petitioner-in-person that despite the above reproduced findings returned by Tribunal or this Court, respondents No. 4 and 5 were allowed to hold the post of Superintendent [Group ''B''] till they retired on superannuation. In this manner, the persons of lower rank and status were allowed to hold and enjoy the perks of a higher post w.e.f. 27.02.1992, i.e., the date when they were illegally promoted, the petitioner was denied such benefits for no fault on his part.

Having considered the petitioner''s submissions, we are of the view that it was a fit case where the Tribunal ought to have directed the petitioner''s consideration for retrospective promotion with all consequential benefits. We say so for the reason that the petitioner promptly impugned the promotion order of respondents No. 4 and 5 by way of OA instituted in the year 1992. It was only when his case was likely to be decided by Tribunal that the respondents promoted the petitioner in April, 2000. Since the persons who were holding lower posts, namely, respondents No. 4 and 5 continued to hold the promotional posts till they retired and, thus, not only got higher emoluments while in service, but the higher retiral benefits also, the petitioner being an incumbent on the post of higher rank and status and having been held entitled to such promotion from the date the private respondents were promoted, could not be denied the consequential benefits. The manner in which the statutory Rules were ignored or the draft Rules were pressed in aid, gives some credence to the petitioner''s plea that undue favour was given to the private respondents.

It may be noticed here that pursuant to directions issued by the Tribunal, the petitioner was considered and found suitable for retrospective promotion as Superintendent [Operations] w.e.f. 27.02.1992.

Consequently, we allow the writ petition, modify the order dated 01.06.2000 passed by the Tribunal and hold that the petitioner is entitled to promotion to the post of Superintendent [Operation] w.e.f. 27.02.1992 with all the consequential benefits including arrears of pay. Let the arrears be paid to the petitioner within a period of four months from the date a certified copy of this order is received, failing which the petitioner shall be entitled to interest @7% per annum. Disposed of. Dasti.