Shri A.N. Bardaiyar and Others vs Union of India

Rajiv Sahai Endlaw, J.—The petition impugns the order dated 1st August, 2011 of the Central Administrative Tribunal, Principal Bench dismissing OA 1264/2011 u/s 19 of the Administrative Tribunal Act, 1985 preferred by the petitioners.

The five petitioners joined the Government of India in the Central Secretariat Services as Assistant and rose to become Section Officer, then Under Secretary and reached the grade of Dy. Secretary in which rank they retired on superannuation on 30th November, 2005, 31st December, 2005, 31st March, 2006, 31st March, 2006 and 31st July, 2006 respectively.

The next post for promotion in the cadre to which the petitioners belonged, was of Director. The petitioners were eligible for the said promotion since the year 2000-2001 when a list containing their names was also prepared. However the Departmental Promotion Committee (DPC) was held only on 27th July, 2006 and in which they were considered but not promoted, having retired.

The case of the petitioners is that since they were eligible for promotion since the year 2000-2001 and were not promoted for the reason of the DPC having not been held, they are required to be promoted notionally to the said post of Director and even though not claiming any emoluments of the said post, are entitled to their retiral benefits including pension as relatable to the post of Director.

The Tribunal has in a detailed well reasoned judgment held:-

(i). That there is no rule that promotion should be given from the date of creation of the promotional post or from the date of vacancy;

(ii). If promotion is effected prospectively from the date of issue of the order of promotion, those employees who have retired prior to such date would not be eligible for promotion retrospectively. Even if retired employees are in the select list or panel of promotion, they cannot be given retrospective promotion when the promotion is prospective;

(iii). Only if the promotion is granted retrospectively and a person junior to the retired employee has been promoted from the date when the retired person was in service and if the retired employee has been found fit by the DPC and is available in the panel or select list, would such retired employee be entitled to promotion retrospectively on notional basis from the date his immediate junior has been promoted.

Finding that next junior to the petitioners had not been promoted retrospectively or from the date when the petitioners were in service, the petitioners, following the judgment dated 12th January, 2007 of this Court in W.P.(C) No. 20812/2005 titled Union of India v. Rajendra Roy were not found entitled to the relief claimed.

The counsel for the petitioners has before us also contended that the petitioners ought not to suffer owing to delay from the year 2001 to 2006 in holding of the DPC. Reliance is placed on judgment dated 5th October, 2009 of a Division Bench of this Court in W.P.(C) No. 423-424/2006 titled Union of India v. S.K. Thakral. Undoubtedly the Division Bench in para 13 of the said judgment has observed that the Tribunal had not committed any error in granting notional promotion to the respondent therein from the date of the vacancy but we do not find any reasoning for the said observation. On the contrary, the Division Bench in Rajendra Roy (supra), relying upon the judgments of the Apex Court has held that promotion cannot be given from the date of occurrence of vacancy and can only be granted from the actual date after the panel has been prepared and approved by the Competent Authority and that if it were to be otherwise, it would lead to an anomalous situation that a retired person is given promotion from the date of occurrence of vacancy, while a serving person is given promotion from the date of his actual promotion.

We therefore are not persuaded to inspect the matter further for the reason of stray observation in S.K. Thakral (supra) while refusing to entertain the judicial review against the order of the Tribunal in that case. We may notice that the Supreme Court in Uttaranchal Forest Rangers'' Asson. (Direct Recruit) and Others Vs. State of U.P. and Others, and in State of Uttaranchal and Another Vs. Dinesh Kumar Sharma, has reiterated that a person cannot claim promotion from the date of occurrence of vacancy and no retrospective effect can be given to order of appointment. A Two Judge Bench of the Apex Court in K. Madhavan and Another Vs. Union of India (UOI) and Others, held that if the meeting of the DPC scheduled to be held is arbitrarily or mala fide cancelled without any reasonable justification therefore and to the prejudice of an employee who is not considered for promotion to a higher post, the government in a suitable case can do justice by granting him promotion to the higher post for which the DPC was to be held, with retrospective effect, however if the non holding of DPC is not arbitrary, the employee concerned can have no grievance and the government will not be justified in appointing the employee to the higher post with retrospective effect. Another Division Bench of this Court in judgment dated 5th September, 2011 in W.P.(C) No. 2890/2011 titled UOI v. Mr. M.S. Tewari also reversed the order of the Tribunal granting promotion to a retired employee with retrospective effect holding that without a case of mala fide or arbitrariness in holding of the DPC being made out such relief could not have been granted.

We therefore do not find any error in the impugned order of the Tribunal. There is no merit in the petition; the same is dismissed.