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 was promoted to the post of Senior Scientific Officer in the year 2003. The post has since been re-designated as Assistant Director (AE) (for short, AD (AE)). On completion of five years of service in that post, an incumbent becomes eligible to be considered for promotion to the post of Deputy Director (AE) (for short, DD (AE)). It is stated that though the applicant was the senior most officer to be considered for promotion to the post of DD (AE), his case was not considered in the year 2008, and major penalty charge-sheet was issued on 12.02.2009. The charges are said to have been dropped vide order dated 05.08.2010.

The appointment to the post of DD (AE) is partly through promotion, and partly through direct recruitment. Advertisement No.16 was issued in August, 2010 by the respondents for direct recruitment. Pleading that the process for direct recruitment was initiated without taking any steps for promotion to the post, the applicant filed OA No.2506/2011.

During the pendency of that OA, the applicant was promoted to the post of DD (AE). The OA was ultimately dismissed on 05.09.2014. The applicant filed WP(C) No.5802/2015 before the Delhi High Court, feeling aggrieved by the dismissal of the OA. According to him, he was entitled to be promoted to the post of DD (AE) with effect from the date on which the vacancy had arisen. The writ petition was disposed of on 11.08.2016, taking note of the fact that the applicant was already promoted, but directing that a review DPC shall be held to consider the case of the applicant for promotion with effect from an earlier date. It is stated that in compliance of the judgment of the Delhi High Court, the applicant was promoted to the post of DD (AE) w.e.f. 01.05.2009.

Promotion from the post of DD (AE) is to the post of Director. The applicant contends that he became eligible to be promoted to the post of Director w.e.f. 01.04.2012, but still he was being treated as having been promoted w.e.f. 24.09.2015, the date on which his juniors were promoted to that post. He made a representation to the respondents with a request to treat his promotion to the post of Director with retrospective effect against the vacancy of the year 2013-14. The representation was rejected through order dated 01.05.2017. Hence, this OA.

The applicant contends that once wrong done to him on account of the delay that occurred in the promotion to the post of DD (AE) has been remedied, he was entitled to be promoted as Director against the vacancy of the year 2013-14. According to him, there existed a clear vacancy of the post of Director in that year, and since there was no eligible candidate, the DPC was not constituted at all. He contends that it was only on convening of the review DPC for the post of DD (AE) in compliance of the judgment of the Delhi High Court, that he came to be promoted w.e.f. 2009, and thereby acquired eligibility to be considered for the post of Director against the vacancy of the year 2013-14.

The respondents filed counter affidavit opposing the OA. It is stated that no employee can insist that he is entitled to be promoted against the vacancy of a particular year, much less with retrospective benefit. They submit that the occasion to promote an officer with retrospective effect would arise only when his junior was promoted from an earlier date, and the retrospective effect cannot be earlier in point of time than the date of promotion of the junior. It is also stated that the benefit was extended to the applicant in accordance with law, and he is not entitled to any further relief.

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

The particulars of the service of the applicant, ever since he joined the organisation are furnished in the preceding paragraphs, within the permissible limits of brevity. The promotion of the applicant to the post of DD (AE), and thereafter to the post of Director, were delayed. The pendency of disciplinary proceedings became the cause for delay in promotion to the post of DD (AE). Though he was promoted from an earlier date, he did not acquire eligibility for promotion to the post of Director, for want of minimum standing in the feeder post. According to the applicant, he became eligible to be considered for promotion to the post of Director against a vacancy of the year 2013-14, with the convening of the review DPC, and the grant of retrospective promotion to the post of DD (AE) from the year 2009. Had it been a case where the applicant was not promoted to the post of Director by the time his promotion to the post of DD (AE) was pushed back to an earlier date, things would have been different altogether. He was promoted to the post of Director, that too from a date on which his juniors were promoted. The very claim of the applicant that he must be treated as having been promoted against a vacancy of the year 2013-14 is under a mistaken impression of law and fact. The reason is that no employee can insist that he is entitled to be promoted against a vacancy of a particular year. In other words, even if there exists a clear vacancy and the employee had acquired eligibility, no right accrues to him to be promoted.

Secondly, the promotion cannot be effected from a date earlier to the date of actual promotion. The only exception is where an employee was not considered for promotion on account of an impediment, even while his juniors were promoted. On removal of such impediment at a later stage, he becomes entitled to be promoted with effect from the date on which his juniors were promoted. Even this is for the purpose of seniority, and not as a measure of recognition of his right against a vacancy of a particular year. These and other relatedprinciples are enunciated and reiterated by the Hon'ble Supreme Court in Union of India v K. K. Vadera & others [1989 Supp. (2) SCC 625].

Once the applicant has been extended the benefit of promotion to the post of Director with effect from a date on which his junior was promoted to that post, he cannot have any genuine grievance, and his claim that his promotion deserves to be treated against the vacancy of the year 2013-14 is totally untenable.

The OA is accordingly dismissed. There shall be no order as to costs. Pending MAs also stand disposed of.