Dr. Rama Kant Singh vs Union Of India Through Secretary And Ors

L. Narasimha Reddy, J

The applicant joined the service in the Ministry of Civil Aviation as Project Officer, in the office of Director General, Civil Aviation (DGCA), in 1993. He acquired promotions to various posts, such as Assistant Director (AE) (17.03.2003); Deputy Director (AE) (17.03.2008); and Director through order dated 29.12.2016 w.e.f. 24.09.2015. For promotion to the next higher post of Deputy Director General (DDG), not only the branch in which the applicant is working, but also Directors of other branches, such as Airworthiness, Aircraft Engineering, Operations, and Air Safety, are eligible to be promoted. For this purpose, a common seniority list is prepared. Such a list as on 01.04.2017 was prepared and issued through circular dated 07.12.2017. In that, the applicant figured at serial number 9, whereas respondents 5 to 12 figured at serial numbers 1 to 8.

The applicant contends that respondents 5 to 10 were promoted to the post of Director in the year 2014, and respondents 11 and 12, in the year 2015, in their respective branches, and though he was entitled to be promoted as Director against a vacancy of the year 2013-14 in his branch, he was shown as having been promoted w.e.f. 24.09.2015. He submits that gross injustice has been done to him in the matter of preparation of the common seniority list for the post of Director in the Department. This OA is filed with a prayer to quash the seniority list contained in circular dated 07.12.2017, as being illegal, unjust and arbitrary, and to direct the respondents to fix his seniority above respondents 5 to 12 on the basis of the year of vacancy of 2013-14.

Respondents 1 to 4, on the one hand, and respondents 5 to 12, on the other, filed separate counter affidavits. According to them, the applicant was promoted to the post of Director for the first time through order dated 29.12.2016 with retrospective effect from 24.09.2015, whereas respondents 5 to 12 have been working in the post of Director on ad hoc basis long prior thereto, i.e. ranging from 2008 to 2012. They contend that no employee can be treated as having been promoted from any anterior date, unless he has actually worked in that capacity on ad hoc or temporary basis, as held by the Hon'ble Supreme Court in Sunaina Sharma & others v State of Jammu and Kashmir & others [Civil Appeal Nos.4594-4595 of 2017], decided on 26.10.2017, and if that principle is applied, the applicant does not become entitled to any relief whatever. Alternatively, it is submitted that if the applicant is extended the benefit of the promotion against a vacancy of a particular year, the same benefit deserves to be extended to respondents 5 to 12 also.

We heard Shri A. K. Behera and Shri Yogesh Sharma, learned counsel for the applicant, and Shri Rajeev Kumar, Shri R. V. Sinha, and Shri Amit Anand, learned counsel for the respondents.

It is a matter of record that the applicant was promoted to the post of Director through order dated 29.12.2016, but w.e.f. 24.09.2015, the date on which his juniors were promoted. The applicant had to initiate proceedings before the Tribunal more than once regarding his promotion to the post of Deputy Director, and thereafter to the post of Director. The details thereof are not relevant for the purpose of this OA. The promotion from the post of Director is to that of DDG. The feeder category comprises of several branches in the Department, and obviously for that reason, a common seniority list had to be prepared, which in turn was issued through the impugned circular dated 07.12.2017.

The seniority of Directors is determined on the basis of the date of promotion, actual as well as notional. The list comprises 20 names. The applicant contends that though he was promoted in the year 2016, w.e.f. 24.09.2015, his promotion is liable to be treated against the vacancy referable to the year 2013-14. The respondents did not accede to the request. Even if it is assumed that at least for the purpose of seniority, the year of vacancy becomes relevant, same facility needs to be extended to the Directors of other branches also. In comparison to the applicant, respondents 5 to 12 have been actively holding the post of Director by working therein on ad hoc basis, before they came to be regularly promoted. The benefit of the ad hoc service was not extended to them in the context of preparing the common seniority list.

Under these circumstances, it is difficult to hold that the applicant is in any way superior or senior to respondents 5 to 12, as the things stand now. Though the prayer of the applicant to treat him as having been promoted to the post of Director against a vacancy of 2013-14 was rejected in OA No.2594/2017, at least in the context of inter se seniority, his version deserves to be considered along with that of other persons, who are included in the impugned common seniority list. Till such representations are considered, the seniority list may be treated as having not assumed finality, subject, however, to the condition that it shall be open to the respondents 1 to 4 to operate the same, if there exists any necessity to undertake further promotions in the near future.

The OA is accordingly disposed of, leaving it open to the applicant, respondents 5 to 12 and other officers shown in the seniority list dated 07.12.2017 to put forward their claims for seniority. For this purpose - (a) the seniority list issued on 07.12.2017 shall be treated as tentative, and the representations of the officers, and objections thereto, need to be considered; (b) the seniority list shall be finalised within a period of two months from the date of receipt of representations as indicated above; and (c) if it becomes necessary to make promotions to the post of Deputy Director General, it shall be competent for respondents 1 to 4 to undertake the exercise as per the seniority list dated 07.12.2017, subject, however, to the outcome of the exercise of publication of the final seniority list.

There shall be no order as to costs.