S Gopalakrishnan vs Union Of India & Others

K V Eapen, Member A

The applicant was appointed under the 2 nd respondent - National Institute of Fisheries, Post Harvest Technology & Training (NIFPHATT), Kochi as a Casual Labourer in 1978. On 10.09.1986 he was appointed as an Unskilled Worker, which is a Group D non ministerial cadre. He could not be promoted to the post of Slipway Worker which at that time was the next post existing under the then Recruitment Rules, due to want of vacancies. Hence, he was granted his first ACP in the pay scale of Slipway Worker. The Recruitment Rules were later amended with effect from 08.04.2000. As per the amended Recruitment Rules the post of 'Ice Man' was the next promotion post i.e., to be filled upto 75% of the vacancies by promotion from the grade of Khalasi/Unskilled Workers with 6 years experience and SSLC qualifications. The applicant who had much more than 6 years of service as Unskilled Worker, was then promoted as Ice Man as per order dated 18.04.2005. The next post in the promotional hierarchy was as Mechanic (Ice Plant). The Recruitment Rules stipulated that an employee with 8 years of experience as Ice Man could be considered for promotion to the same. According to the applicant, since he was promoted as Ice Man in 2005 he was therefore eligible to be promoted as Mechanic (Ice Plant) in 2013. He claims also that there was a vacancy at that time in the post of Mechanic (Ice Plant) and that subsequently, two other vacancies also arose. The applicant submitted a detailed representation on 02.06.2014 requesting the respondents to promote him to one of the vacancies in the post of Mechanic (Ice Plant). This representation has been produced at Annexure A-5. However, the respondents promoted him as Mechanic (Ice Plant) only by the order dated 30.05.2016 with effect from the date he assumed charge (Annexure A6). The grievance of the applicant is that the respondents should have promoted him against the vacancy which arose earlier instead of waiting till 2016.

It is the contention of the applicant that he was the senior most in the 'Ice Man' grade during the period 2013-2014 and that he should have been promoted as Mechanic (Ice Plant) in the vacancy which arose in 2013. This was delayed and he was promoted as Mechanic (Ice Plant) only in 2016. He therefore submitted a representation (dated 02.03.2017) to the 2 nd respondent, the Director, NIFPHATT, requesting his promotion with effect from the date when the vacancy arose in the post of Mechanic (Ice Plant) in 2013-2014. A copy of the representation is produced at Annexure A-7. No response was given to this representation and he then submitted another representation dated 10.01.2019, wherein he stated that if retrospective promotion was given to him as Mechanic (Ice Plant), he would be then eligible for further promotion as Assistant Operator. A copy of this representation is produced at Annexure A-8. It is to be noted that the Recruitment Rules of Assistant Operator state that the feeder category is Mechanic (Ice Plant) with 5 years of experience and the promotion from this feeder category would be to the extent of 75% of the vacancies in post.

He claims in the O.A that there were 4 posts of Assistant Operator which were vacant of which two vacancies arose in 2018 and another two vacancies arose in 2019. There were two persons in the feeder category of Mechanic (Ice Plant) including him. The vacancy could not be filled up only due to the fact he was then not fully qualified for promotion having been promoted as Mechanic only in 2016. The grievance of the applicant therefore arises from the fact that in case he had been promoted as Mechanic (Ice Plant) in 2013 itself, he would have been qualified for being considered for promotion as Assistant Operator by 2018. The delay in not promoting him though he was fully qualified and eligible was not due to his fault. The reliefs therefore sought are as follows :

"1. To declare that the applicant is to be appointed as Mechanic (Ice Plant) to the vacancy which arose in 2013.

And to direct the 2nd respondent to consider the applicant for being appointed as Assistant Operator to the vacancy which arose in 2018 & 2019.

To direct the 2nd respondent to consider the representations pending before it and pass appropriate orders and to further promote the applicant as Assistant Operator.

Grant other reliefs as this Hon'ble Court deem fit and proper in the circumstances of the case including the costs of this Original Application."

Per contra, the 2nd respondent filed a reply statement on behalf of all the respondents. It is admitted that as per the then Recruitment Rules existing in NIFPHATT, the promotion post of Unskilled Worker was to Slipway Worker. For want of vacancies, the applicant could not be promoted at that time. However, after implementation of MACP Scheme, he was granted the first and second financial upgradation on completion of 10 and 20 years of service on 01.09.2008, by ignoring the promotion granted to him to the post of Ice Man, since the Pay Band and Grade Pay of initial appointment and promotion were the same. The applicant was also granted the third financial upgradation under MACP Scheme on completion of 30 years of service on 10.09.2016. It is submitted by the respondents that the Departmental Promotion Committee (DPC) which was held on 04.04.2005 to consider promotion to the post of Ice Man observed that, as on date, there were no vacant posts in the cadre of Ice Man and that two posts of Ice Man would fall vacant due to the resultant vacancy on promotion of the incumbents to the post of Mechanic (Ice Plant). The DPC then recommended considering the applicant for promotion to the post of Ice Man. The applicant was then promoted as Ice Man by Annexure A-3 Order and he joined the post on 19.04.2005. As earlier stated he was also then granted the first and second financial upgradations under the MACP Scheme on completion of 10 and 20 years of service on 01.09.2008, by ignoring this promotion granted to him to the post of Ice Man, since the Pay Band and Grade Pay of initial appointment and promotion were the same. The Recruitment Rules for the next post of Mechanic (Ice Plant) indicate that Ice Man with 8 years service in the grade are eligible for promotion to this post. Two vacancies of Mechanic (Ice Plant) arose in 2009 and the DPC, which met on 09.11.2009, found there was only one eligible candidate, namely, one Shri.Jose.K.Xavier available in the feeder category for promotion. It is therefore submitted that the other vacant post of Mechanic (Ice Plant) that fell vacant on 16.10.2009 could not be filled due to lack of eligible candidates in the feeder category. The candidates in the feeder category acquired the required length of service only in 2013. The DPC which met on 01.08.2013, after considering all the relevant points, recommended to promote Shri.K.S.Sunny, Ice Man, the senior most candidate in the feeder category, to the promotion post of Mechanic (Ice Plant) in the vacant post which had arisen on 16.10.2009. Therefore the applicant's statement that there were two vacancies in 2013 is incorrect. It is only due to want of vacancy that the applicant could not be promoted in 2013. Thus, no action was taken on the Annexure A-5 representation, since there was no vacancy in the promotion post. It is further submitted that later one post of Mechanic (Ice Plant) fell vacant on 09.02.2016. The DPC which met on 20.05.2016 recommended promoting the applicant to the post of Mechanic (Ice Plant) against this vacancy. He was promoted by the Annexure A-6 order and he joined duty as Mechanic (Ice Plant) on 02.06.2016. The respondents could not thus take any action on the Annexure A-7 representation, since there was no vacancy in the promotion post and his request for promotion could not be considered. In short, the applicant, being in the feeder category, was considered in the DPCs that were constituted for promotion to the vacant post of Mechanic (Ice Plant) in the year 2013. However since there was only one vacant post, the senior most candidate in the feeder category Shri.K.S.Sunny was considered. Hence his representation at Annexure A-8 also could not be considered. As per Government of India norms, the norms for promotion to a post depends on the Recruitment Rules, seniority, reservation rosters, CR gradings and the recommendation of the DPC. The applicant's request to grant him retrospective promotion cannot thus be acceded to. It is submitted that the applicant therefore did not possess the required length of service for further promotion to the post of Assistant Operator (Ice Plant) and hence his case could not be considered.

In his Rejoinder filed against the Reply statement the applicant has adopted a completely new argument. He states that, as per the reply to an RTI application, he has now found out that he could have been promoted to the post of Ice Man on 08.04.2000 itself (date of new Recruitment Rules) as there were three vacancies in that post as on that date. Since the applicant had joined as Unskilled Worker on 10.09.1986, and as on the date of the amended Recruitment Rules to the post of Ice Man, he had already attained 14 years of regular service. The response to the RTI Application has been produced at Annexure A-10. He claims that inspite of existence of the 3 Ice Man vacancies and eligible service experience, he was not been granted promotion to the post of Ice Man till 04.04.2005. There was thus a delay of five years on the part of the respondents in not considering and granting him promotion as Ice Man. His subsequent promotions in the higher posts were unduly delayed in consequence thereof for which he should not be made to suffer. He would have attained the necessary service experience for promotion to the post of Assistant Operator had he been granted due promotion in time well before his date of superannuation from service on 31.05.2020. He could have then retired as Assistant Operator with higher retiral benefits, including higher monthly pension than what he is now receiving. There has been delay by the respondents in not following the DoPT instructions which have laid down that the DPC should meet at regular intervals annually to draw up panels to be utilized for grant of promotions for over a year as well as the directions that the action should be initiated well in advance without waiting till the arising of vacancies. It has been laid down that the DPC should assess the suitability of eligible employees in the feeder category on the basis of their service records/ACR's for the preceding stipulated years. Had these instructions been followed in their correct perspective, he would have been promoted as Ice Man during the year 2000/2001 as well as Mechanic (Ice Plant) sufficiently in advance and consequently, he would have been promoted as Assistant Operator well before his retirement on 31.05.2020. He has relied on the directions of Hon'ble High Court of Kerala in State of Kerala v. Bhaskaran reported in 2003 (1) KLT 60 which has held that promotion delayed is promotion denied and directed that retrospective promotion be granted to the employees therein with all attendant monetary arrears arising therefrom. The nodal ministry had issued the directions to convene the DPC at regular intervals annually to ward of stagnation among the employees. Promotion is a part of the service conditions of the employees and in the event of their non-consideration for promotion, their fundamental rights to be considered for promotion are violated under Article 14 and 16 (1) of the Constitution of India. Thus, it is only proper that, in the interest of justice and fairness, to grant retrospective promotion to him in one of the four vacancies of Assistant Operator with all attendant benefits arising therefrom.

We have closely heard Mr.P.K.Madhusoodhanan, learned counsel for the applicant and Mr.V.A.Shaji, learned counsel for the respondents. At the outset it must be stated that the applicant's reliance on a RTI Information regarding apparent vacancies in the post of Ice Man in 2000, as brought out in his rejoinder, is a new argument which was not indicated in the O.A. The respondents have not mentioned any such vacancies in the posts of Ice Man in 2000 in their Reply Statement. Thus matters relating to apparent vacancies in feeder category posts like Ice Man are being freshly agitated 20 years later as it now claimed that vacancies in the post of Ice Man existed in the year 2000. Such pleadings cannot by themselves reopen the whole process of promotions and postings afresh for adjudication at this long length of time unless other pressing reasons or malafide are established. The respondents have adequately explained that the applicant was considered for promotion to the post of Mechanic (Ice Plant) and before that to the post of Ice Man, as and when the vacancies arose in these posts. The DPC's were held and he was promoted after considering the cases of those who were senior to him in service as well as other relevant matters. As per the Reply statement the DPCs were held regularly in time as and when vacancies/anticipated vacancies arose and he was promoted accordingly. There were no vacancies in the year 2013 when he had completed 8 years of service as Ice Man. He was thus promoted only in 2016 as Mechanic (Ice Plant) when a clear vacancy arose. At any extent it is now impossible to go back in time and revisit the promotion orders to consider promotion to the post of Ice Man with retrospective effect from 2000, instead of the actual year of promotion in 2005 on the basis of a RTI reply that there were three vacancies in 2000. It would invite a whole series of adjustments to be made even if this was correct, as there were others who were also apparently senior to him in the promotional hierarchy who also have since retired and will have to be considered.

We do not therefore find that sufficient grounds or reasons have been adduced in the O.A by the applicant to re-visit his various promotions or that there are sufficient grounds to consider any retrospective promotion that should take place. From a plain reading it is clear to us that the DPCs in his case were conducted by the respondents as and when vacancies arose or were anticipated and he was promoted accordingly in due course. It is not his case that either his juniors over took him or that there were no seniors in front of him. He has not contested any of the averments made in the reply on merit in his rejoinder which solely relies on information received by a RTI Application about existence of vacancies five years previously in a feeder post. No malafide or wrongful use of rules to deny him his promotion in time has been established.

We therefore do not find sufficient grounds to interfere and thus cannot allow the reliefs sought for in the O.A. The O.A is accordingly dismissed. No order as to costs.