1 CIVIL WRIT JURISDICTION CASE No.5858 OF 2006 --------- In the matter of an application under Articles 226 and 227 of the Constitution of India. ------- The Comptroller and Auditor General of India, 10, Bahadur Sah Zafar Marg, I.P. Estate, New Delhi-110002 ---- Petitioner (Respondent no.3). Versus 1. Central Administrative Tribunal, Patna Bench (deleted) 2. Raghunath Prasad (deceased) (i) Ram Rati Devi wife of deceased respondent no.2 (ii) Nirmala Lal (Eldest married daughter of respondent no.2) (iii) Dr. Arvind Kumar (son of deceased respondent no.2) (iv) Dr. Pramila Kumari(unmarried daughter of respondent no.2), all resident of Village-Semra Bazar, P.S. Gopalpur, District-Gopalganj. ----- --- Respondent Ist Set. 3. The Union of India through the Secretary Ministry of Personnel and Training, Department of Personnel, New Delhi 4. The Secretary to the Government of India, Ministry of Finance, Department of Expenditure, New Delhi --- Respondent 2nd Set. ----------- For the Petitioner - Mr. Madhuresh Prasad. For Respondent no.2- Mr. S.N. Jha, Sr. Advocate Mr. Abhinav Shrivastava. For Respondent no.3 and 4 - Mr. Binay Kumar Pandey, C.G.C. --------- P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL S. K. Katriar, J. This writ petition is directed against the order dated 19.12.2005 (Annexure-4), passed by the learned Central Administrative Tribunal, Patna Bench, in O.A. No. 113 of 2004 (Raghunath Prasad Vs. The Union of India & Ors.), whereby the original application preferred by Raghunath Prasad has been allowed 2 and the authorities have been directed to consider his case for promotion to the next higher post of Accountant General. The operative portion of the order is reproduced hereinbelow: “The impugned order is set aside and quashed. The respondents are directed to consider the case of the applicant for promotion to the post of Senior Administrative Grade for notional promotion and consequential benefits. The entire exercise should be completed within a period of three months from the date of receipt of copy of this order. No costs.” 2. Before we proceed further, we must indicate that Raghunath Prasad, the original respondent no.2, died during the pendency of the proceedings and his heirs have been substituted. We shall herein refer to him as the original applicant. 3. A brief statement of facts essential for the disposal of the writ petition may be indicated. The original applicant was in the Subordinate Accounts Service (Group-C) on 5.8.1966. He was promoted to different levels, and ultimately superannuated from the Indian Audit and Accounts Service with effect from 28.2.2003, while he was posted as Senior Deputy Accountant General, a post for the selection grade of Junior Administrative Grade. After his superannuation, cases of similarly circumstanced officers were considered for promotion to the 3 next higher grade of Accountant General. In view of the provisions of the Indian Audit and Accounts Service (Recruitment) Rules, 1983 (hereinafter referred to as the Act), the authorities considered all the eligible candidates as on 1.7.2003 for promotion. A large number of Officers were promoted to the post of the Accountant General who were senior to the original applicant in the gradation list. He thereafter submitted his representation dated 10.9.2003 (Annexure-1), which was rejected by order dated 3.10.2003(Annexure-2), leading to the original application. The same has been allowed with the aforesaid direction. 4. While assailing the validity of the order of the learned Tribunal, learned counsel for the petitioner submits that, his representation dated 10.9.2003, raising grievance against the promotions, suffered from un-explained delay. In his submission, settled affairs can not be un-settled in the manner suggested by the original applicant. He next submits that the learned Tribunal has erred in concluding that 1.1.2003 is the appropriate date to consider cases of eligible candidates for promotion, rather than 1.7.2003. This is contrary to the statutory provisions found in the Rules which have been promulgated in terms 4 of Article 148(5) of the Constitution of India which places Rules governing the office of the Comptroller and Auditor General on a different footing, distinct from offices which are governed by Article 309 of the Constitution of India. He relies on the judgment of the Supreme Court reported in A.I.R. 1981 SC 783, The Accountant General and another Vs. S. Doraiswamy and others. He lastly submits that the original applicant has no cause of action to maintain the original application in view of the position that no person junior to him had been promoted till his superannuation, or till the date of the impugned promotion. He relies on the judgment reported in (1998) 7 SCC 44, Baij Nath Sharma Vs. Hon’ble Rajasthan High Court at Jodhpur and another. 5. Learned counsel for the original applicant has supported the order of the learned Tribunal. He submits that the Tribunal has rightly concluded that 1.1.2003 was the crucial date to determine the vacancy and consider the cases of eligible candidates for promotion. He relies on the circulars of the Government of India, Department of Personnel and Administrative Reforms, in terms of Article 309 of the Constitution of India which he says was promulgated with the concurrence of the 5 Comptroller and Auditor General and, therefore, governs his establishment. 6. We have perused the materials on record and considered the submissions of learned counsel for the parties. We would first of all like to deal with the question of delay advanced on behalf of the petitioner. We have not been informed, let alone been produced for our perusal, copy of the order of promotions. The question of delay could be considered and answered mainly with respect to the date of the notification. In such a situation we are not in a position to hold that the representation suffered from delay. 7. It appears to us on a perusal of the materials before us that at no stage till 28.2.2003, the date on which original applicant superannuated, any person junior to him was promoted to the higher post. It is common case of the parties that no person junior to the original applicant was promoted by the impugned order of promotion. In that view of the matter, we have no manner of doubt that original applicant had no cause of action to maintain the original application. Law is well settled that no employee has a right of promotion. He has only a right of consideration for promotion when he enters into the zone of his consideration. 6 The original applicant could have maintained the original application only after person(s) junior to him had been promoted. The admitted case of the parties that no person junior to him has been promoted till the date of his superannuation, nor the impugned order of promotion includes any person junior to him. 8. In that view of the matter, the significance of 1.1.2003 is of less importance. It is nobody’s case that persons junior to the original applicant as on 1.1.2003 were considered and promoted to the prejudice of the original applicant. 9. Learned counsel for the petitioner has placed reliance on paragraph 11 of the writ petition which is reproduced hereinbelow. “11. That in any case, in view of law laid down by Hon’ble Supreme Court in case of Baijnath Sharma Vs. Hon’ble Rajasthan High Court at Jodhpur reported in 1988 (7) SCC 44, the Respondent no.2 could not have any grievance as none of his juniors had been given promotion from a date prior to superannuation of Respondent no.2.” 10. Learned counsel for the petitioner has rightly relied on the judgment of Supreme Court in the cased of Baij Nath Sharma(supra), wherein it has been laid down that the retired employee could have a valid grievance if any of his juniors had been given promotion from a date prior to his superannuation but he cannot 7 complain when promotions were made prospectively after his retirement. Paragraph 6 of the judgment is reproduced hereinbelow for the facility of quick reference: “6. The appellant could certainly have a grievance if any of his juniors had been given promotion from a date prior to his superannuation. It is not the case here. From the promotional quota, four promotions were made only on 30.12.1996, i.e. after the appellant had retired. Those promoted were given promotions from the dates the orders of their promotions were issued and not from the dates the posts had fallen vacant. It is also the contention of the High Court that these four officers, who were promoted to the RHJS, were senior to the appellant as per the seniority list. The question which falls for consideration is very narrow and that is, if under the rules applicable to the appellant promotion was to be given to him from the date the post fell vacant or from the date when order for promotion is made. We have not been shown any rule which could help the appellant. No officer in the RJS has been promoted to the RHJS prior to 31.5.1996 who is junior to the appellant. Further decision by the Rajasthan High court has been taken to restore the imbalance between the direct recruits and the promotees which, of course, as noted above, is beyond challenge.” 11. In view of the foregoing discussion, we do not feel the necessity of examining the remaining contentions advanced by learned counsel for the parties. 12. In the result, the writ petition is allowed. We do not agree with the order of the 8 learned Tribunal, and is accordingly set aside. The order dated 3.10.2003 (Annexure-2), passed by the Comptroller and Auditor General of India, is hereby restored. In the facts and circumstances of the case, there shall be no order as to costs. ( S. K. Katriar, J.) Kishore K. Mandal, J.I agree. (Kishore K. Mandal, J.) High Court Patna, Dated 21st April, 2010. Vinay/ N.A.F.R.