The State of Tamil Nadu vs K. Gopalakrishnan

The challenge in this writ petition is to the order dated 13.12.2012 passed by the Central Administrative Tribunal, Madras Bench in O.A.No. 654 of 2010, whereunder in the application filed by the first respondent, the Tribunal has made the following directions to the respondents therein:

a) The applicant shall be notionally promoted to the post of Inspector General of Police from Deputy Inspector General of Police, from the date when his juniors were promoted and a formal order shall be passed to that effect. However, there shall be no payment of back wages.

b) After granting notional promotion to the applicant, respondent No. 2 is directed to re-fix the pay of the applicant in the grade of IG, re-work the retiral/pensionary benefits accordingly, and pay the amount due to him.

c) This exercise shall be completed within a period of three months from the date of receipt of a copy of this order.

Being aggrieved the second respondent therein / State Government has preferred the instant petition, impugning the order on the ground that the direction of the Tribunal to promote the first respondent herein notionally and to give the benefits of promoted post of Inspector General of Police on fixation of scale in the retiral and pensionary benefits, is contrary to the well settled principles of law. It is further contended that the first respondent was at Serial No. 6 when the cases of other candidates were considered for promotion against the one vacancy in the rank of Inspector General of Police. It is next contended that when juniors of the first respondent were considered for promotion to the post of the Inspector General of Police, the first respondent has already retired from service. Thus, there was no occasion to consider his case for further promotion for the purpose of refixation of his pay and also grant of retiral benefits.

In response, the Union of India has filed a reply, stating therein that as per the promotion guidelines dated 15.1.1999 issued by the Ministry of Home Affairs, Government of India read with a letter dated 12.5.2000, in case there is delay in holding the Committee meeting for a year or more while considering the names yearwise, the names of those officers, who have since retired but fall under the zone of consideration for the relevant year may also be considered along with the other serving officers against the vacancies of that relevant year provided that they are eligible at that point of time.

In the case on hand, admittedly DPC for 1990 batch IPS officers, to which the first respondent belongs, had taken place after retirement of the first respondent. Thus, though retrospective promotion in the rank of Inspector General of Police cannot be granted, however the first respondent may be considered as on that day for the relevant year when he was eligible and vacancies were available.

The first respondent had chosen not to appear in the matter.

On perusal of the documents filed by the State Government as well as the Government of India, it is evident that the Government of India by letter dated 17.05.2009 clearly observed that the 1990 Batch IPS officers, to which the first respondent belongs, were eligible for consideration for promotion to the rank of Inspector General of Police on or after 01.01.2005. However, the Screening Committee meeting was held only on 25.09.2008, i.e., after the first respondent attained the age of superannuation on 30.06.2008. The question of availability of vacancy on or after 01.01.2005 has nowhere been discussed in the meeting held on 25.09.2008. A junior to the first respondent was found fit for promotion to the rank of Inspector General of Police.

The aforestated position of the case on hand was elaborately considered by the Tribunal in the impugned order dated 13.12.2012. However, the Tribunal fell into the error by directing promotion of the first respondent to the post of Inspector General of Police notionally from the date when his juniors were promoted with further direction to refix the pay of the first respondent in the grade of the Inspector General and also re-work the retiral and pensionary benefits accordingly, without giving an opportunity to the authorities concerned to consider the case of the first respondent for promotion.

An employee cannot be promoted straightaway without consideration and a direction to promote him directly cannot be made.(See State of U.P. and another Vs Krishna Lal Sehgal [(2005) 12 SCC 193]). Admittedly, the first respondent was entitled to be considered on or after 01.01.2005 against the available vacancy. However his case could not be considered till September, 2008.

As a sequel, modifying the impugned order passed by the Tribunal, we allow the writ petition partly, directing the petitioner to consider the case of the first respondent as on date he became eligible against the available vacancy on merits and in the event he is found eligible for promotion, the first respondent will be entitled to notional promotion with retiral benefits on refixation of payment of salary, but not the differential payment of salary. No costs. Consequently connected miscellaneous petition is closed.