Gauri Shankar Prasad vs The State of Jharkhand

Aggrieved by the order dated 12.10.2012 in O.A. No. 7 of 2011(R) whereby the prayer of the petitioner for grant of promotion in the rank of Secretary from 01.01.2011 and difference of salary along with the penal interest has been declined, the original applicant/petitioner has approached this Court.

The brief facts of the case are that, the petitioner who was initially appointed as Deputy Collector, vide notification dated 27.11.2008 was allotted the Indian Administrative Service Cadre. He was granted promotion in the Junior Administrative Cadre in the pay scale of Rs. 15,600-39,100 vide notification dated 07.09.2010. Though duly eligible, the petitioner was not considered for promotion to the Selection Grade in the rank of Special Secretary and vide orders dated 09.09.2009 and 04.11.2009 some junior officers belonging to 1996-97 batch were promoted in Selection Grade in the rank of Special Secretary, therefore, he approached the learned Central Administrative Tribunal, Patna Bench, Patna in O.A. No. 45 of 2010 (R). In the proceeding before the learned Tribunal the respondents relied on letter dated 13.02.2008 of the Department of Personnel and Training and contended that for the officers from the 1995 batch, the Mid Career Training (MCT) was essential before promotion and since the applicant did not complete the said training, he was not eligible for promotion to Selection Grade. The learned Tribunal disposed of O.A. No. 45 of 2010 (R) with a direction to the respondents to consider the claim of the petitioner for exemption from MCT and consequent promotion to the Selection Grade vide order dated 23.11.2010.

Pursuant to order dated 23.11.2010 in O.A. No. 45 of 2010 (R) the case of the petitioner was considered by the Departmental Promotion Committee in its meeting held on 25.02.2011 for promotion in the rank of Secretary (Super Time Scale) w.e.f. 01.01.2011. The Departmental Promotion Committee recommended that the petitioner would be eligible for Super Time Scale after he is promoted in the Selection Grade and he assumes the charge on the said post. The petitioner thereafter, superannuated on 28.02.2011.

Relying on the notification dated 29.11.2011 whereby the petitioner was granted promotion in Selection Grade w.e.f. 13.05.2010, the petitioner approached the Tribunal in O.A. No. 7 of 2011 (R) for grant of Super Time Scale w.e.f. 01.01.2011 which, as noticed above, has been dismissed vide impugned order 12.10.2012.

A counter-affidavit has been filed on behalf of the respondents stating that in compliance of order passed by the Central Administrative Tribunal, the matter of promotion of the petitioner in Super Time Scale was placed before the Departmental Promotion Committee held on 28.06.2013 and the Committee opined that the recommendation dated 25.02.2011 of the Departmental Promotion Committee does not require reconsideration as no new fact has been brought to the notice of the Departmental Promotion Committee. It is further stated that in view of the recommendation dated 25.02.2011, the petitioner was held eligible for promotion in the Super Time Scale subject to the condition that he gets promoted in the Selection Grade and he assumes charge on the Selection Grade post and since at that time the petitioner was not promoted in the Selection Grade, he was not granted promotion in Super Time Scale and in the meantime, he retired on 28.02.2011. Placing reliance on departmental notifications dated 01.02.2009, 26.06.2010 and 01.03.2011, it is further stated that the claim of the petitioner for promotion in Super Time Scale was not considered after his retirement because Super Time Scale is a functional grade and therefore, promotion is effected only from the date the promoted officer takes over the charge of the post. On the above grounds, the claim of the petitioner has been resisted by the respondents.

The learned Tribunal taking note of the fact that the petitioner was promoted in Selection Grade w.e.f. 13.05.2010 vide notification dated 29.11.2011, directed the respondents to place the case of the applicants before the Departmental Promotion Committee for promotion in Super Time Scale. The learned Tribunal further ordered that if the petitioner is found suitable, he would be given proforma promotion i.e., without monetary benefit however, his retiral benefits would be recomputed and the arrears due to difference in the pension and other retiral benefits would be paid to the petitioner without undue delay. Still aggrieved, the petitioner has approached this Court by filing the present writ petition.

Mr. Sujit Narayan Prasad, the learned counsel appearing for the petitioner has submitted that in the meeting of the Departmental Promotion Committee held on 25.02.2011 the petitioner was not granted Super Time Scale because at that time the petitioner was not promoted in the Selection Grade however, vide notification dated 29.11.2011 since the petitioner has been granted Selection Grade w.e.f. 13.05.2010, the petitioner is entitled for promotion to Super Time Scale w.e.f. 01.01.2011. Elaborating his contention, the learned counsel for the petitioner has submitted that once it is found that an employee has been denied promotion illegally during his service period, in such cases the courts have ordered benefit of promotion with retrospective effect even after the retirement of the employee. In the present case, the petitioner was eligible for grant of promotion in the Selection Grade which was ultimately granted to him w.e.f. 13.05.2010 though, at the time when the Departmental Promotion Committee considered the case of the petitioner for promotion to Super Time Scale in its meeting held on 25.02.2011 the respondents had not issued notification granting promotion to the petitioner in Selection Grade, after the notification dated 29.11.2011 was issued granting Selection Grade to the petitioner w.e.f. 13.05.2010 the petitioner would be deemed to be eligible as on 25.02.2011 and therefore, he is entitled for promotion in Super Time Scale w.e.f. 01.01.2011.

As against the above, Ms. Shivani Verma, the learned J.C. to Advocate General reiterated the stand taken in the counter-affidavit and submitted that since the recommendation dated 25.02.2011 of the Departmental Promotion Committee was conditional that is, subject to the condition that the petitioner assumes the charge on the promoted post, the petitioner was not granted Super Time Scale as in the meantime, he had already superannuated from the service.

We have carefully considered the submissions made by the learned counsel for the parties and perused the documents on records.

A perusal of the recommendation of the Departmental Promotion Committee dated 25.02.2011 reveals that the reliance placed by the learned counsel for the petitioner on recommendation of the Departmental Promotion Committee is completely misplaced in as much as, the Departmental Promotion Committee in its meeting held on 25.02.2011 never recommended the name of the petitioner for promotion in Super Time Scale. The Departmental Promotion Committee has only observed that the petitioner would be "eligible" for promotion in the Super Time Scale after he gets promotion in the Selection Grade and he assumes the charge on the said post. The contention of the learned counsel for the petitioner that in view of the subsequent notification dated 29.11.2011 since the petitioner has been granted Selection Grade w.e.f. 13.05.2010, he was entitled to be promoted in the Super Time Scale w.e.f. 01.01.2011 is also untenable. The respondents have pointed out that the officers of the 1995 batch were required to undergo Mid Career Training (MCT) and it was an essential condition for promotion. Since the petitioner did not undergo the Mid Career Training (MCT), he was not found eligible for promotion in Selection Grade. The learned Tribunal vide order dated 24.09.2010 in O.A. No. 45 of 2010 (R) directed the respondents to consider the case of the petitioner for grant of exemption from MCT and in pursuance thereof the petitioner has been granted Selection Grade vide order dated 29.11.2011. It has also been contended by the respondents that in view of various departmental notifications the claim of the petitioner for promotion in Super Time Scale could not have been considered as the petitioner had retired in the meantime. It is to be noted that in its proceeding dated 25.02.2011 the Departmental Promotion Committee had held the petitioner eligible for promotion in Super Time Scale subject to fulfilling two conditions namely, (i) he gets promoted in the Selection Grade and, (ii) he joins the post in the Selection Grade. Admittedly, the petitioner was granted Selection Grade vide notification dated 29.11.2011 and he could not join the post in Selection Grade as in the meantime he superannuated from the service. The conditions prescribed in the proceeding dated 25.02.2011 of the Departmental Promotion Committee were not challenged by the petitioner nor proceeding dated 28.06.2013 of the Departmental Promotion Committee declining to review the earlier decision taken on 25.02.2011 has been challenged by the petitioner. In the absence of any challenge to the decision taken by the Departmental Promotion Committee in its meeting held on 25.02.2011, we are unable to accept the claim of the petitioner that he is entitled for grant of Super Time Scale w.e.f. 01.01.2011.

We find no infirmity in the impugned order dated 12.10.2012. Accordingly, the writ petition is dismissed.