1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR WRIT PETITION NO.4064 OF OF 2010 UNION OF INDIA & OTHERS ..VS... VISHWANATH SUDAM HASTE & ANOTHER =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Shri S.K. Mishra, Assistant Solicitor General, for petitioner C ORAM : MOHIT S. SHAH, C.J. & SMT. VASANTI A NAIK,J. DATED : September 07, 2010 . The Union of India, the Chairman – Ordnance Factory Board and the Secretary U.P.S.C. have challenged in this petition the judgment and order dated 15.9.2009 passed by the Central Administrative Tribunal, Mumbai, Circuit Bench at Nagpur allowing the Original Application No.2171/2005 which was filed by the respondent no.1 herein, who was working as General Manager in the Ordnance Clothing Factory Avadi, Nagpur and whose main grievance was that the D.P.C. for the post of Senior General Manager was not held by the authorities in time and was delayed which prejudiced the applicant's claim for being promoted to the said post of Senior General Manager on the eve of his retirement on 30.6.2003. The facts in issue are not in dispute. Upon retirement on superannuation of Shri Vir Singh, Senior 2 General Manager on 30.4.2003, a vacancy in the post of General Manager arose on 1st May 2003. As per procedure which has been laid down by the Ministry of Personnel & Training regarding promotion to the post of Senior General Manager in the Indian Ordnance Factories, (as has been referred to in Union of India ..vs.. N.R. Banerjee reported in AIR 1997 Supreme Court 3761), a Department Promotion Committee was required to sit every year, regularly on or before 1st April or 1st May of the year to fill up the vacancies likely to arise in the year for being filled up. The required material should be collected in advance and merit list finalized by the appointing authorities and placed before the D.P.Cs. for consideration. The D.P.C. however, was not conducted before the applicant retired on superannuation on 30.6.2003. There is no dispute about the fact that the respondent no.1 herein was the senior-most General Manager at the relevant time. The D.P.C. met in the later part of the year and by communication dated 18.11.2003 the respondent no.1 was informed that his name was included in the panel for promotion to the post of Senior General Manager, but since he had already retired on superannuation on 30.6.2003, the question of promotion of respondent no.1 did not arise. Aggrieved by the above decision, the respondent no.1 moved the Central Administrative Tribunal. The 3 Central Administrative Tribunal by the impugned order allowed the original application in view of the aforesaid decision of the Apex Court in case of Union of India ..vs.. N.R.Banerjee (supra) and gave following directions: “7- In this backdrop and by balancing equity, we deem it appropriate to direct the respondent to grant the applicant notional promotion to the post of Senior General Manager w.e.f. 30.4.2003 either by considering him in a review D.P.C. or alternatively, on the basis of D.P.C. conducted by the respondents in the year 2003 in which the applicant's case along with others was considered and have been found fit also as per respondent own showing. 8- With the above direction the present O.A. is allowed. The respondents are directed to do the needful within a period of four months. The arrears etc. to be paid to the applicant on revision of pension and other pensionary benefits should also be released to the applicant within a stipulated period of four months. In case a review DPC is required to be held, the same should also be held within the said period of four months. No order as to costs.” Aggrieved by the above directions, the Union of India, the Chairman – Ordnance Factory Board and the Secretary U.P.S.C., have filed this petition. The learned counsel for the petitioner has raised following contentions: The original application filed by the respondent no.1 was barred by limitation under section 21 of the 4 Administrative Tribunals Act 1985 and the Tribunal erred in allowing the application on merits without giving any finding on the question of limitation, though such contention was specifically raised in the written statement filed on behalf of the authorities. That since no junior to respondent no.1 was promoted in supersession of the claim of respondent no.1, no cause of action arose in favour of respondent no.1. As far as the first contention is concerned, the paper book indicates that the respondent had filed an application for condonation of delay of 35 days in filing the original application and in the said application filed before the Tribunal, in April 2005, it was stated that though the applicant's representation dated 30.8.2004 was rejected by the competent authority by order dated 23.9.2004 and the applicant was required to file application before the Tribunal before 23.9.2005, the applicant could not do so as in first half of 2005 the applicant was operated due to accidental fracture in the leg and thereafter the applicant was busy in making arrangement for his daughter going abroad to join her husband who is working abroad. The applicant had thus explained the delay of 35 days in filing the application. It is stated at the bar that no orders were passed on the said application for condonation of delay. Assuming that no such orders were passed on the application before the 5 Central Administrative Tribunal proceeded to hear the original application on merits, on this ground alone, we are not inclined to interfere with the order of the Tribunal because, even if the order is to be set aside and the matter has to be remanded to the Tribunal, having regard to the explanation for the delay of 35 days offered in the application for condonation of delay, any Court or Tribunal would have condoned the delay and therefore, we are not inclined to interfere with the order of the Tribunal on this ground, more particularly when the respondent no.1 had retired from service as back as in 2003. Coming to the main controversy, on merits, the learned Additional Solicitor General submits that no officer junior to the respondent no.1 was promoted before retirement of respondent no.1, hence no cause of action had accrued to respondent, therefore the Tribunal erred in issuing the impugned directions. It is true that ordinarily the officer or employee has no indefeasible right to get promoted to a higher post as soon as the vacancy arises. However, in the peculiar facts of this case, the grievance made by the respondent in the application before the Tribunal was on the basis of violation of the instructions regarding procedure laid down by the Ministry of Personnel & Training. The required action was to be taken well in advance in case of occurrence of clear vacancy. 6 In similar facts, the Apex Court held in Union of India ..vs..N.R.Banerjee (supra) that when D.P.C. is not held inspite of clear vacancy, the direction given by the Central Administrative Tribunal to the government to constitute D.P.C. was correct in law. The Apex Court referred to the following procedure as contained in instructions issued by the Ministry of Personnel & Training: “ Part II of the guidelines relating to the frequency of meeting of the D.P.C. Para 3.1 indicates that the D.P.Cs. should be convened at regular annual intervals to draw panels which could be utilised for making promotions against the vacancies occurring during the course of a year. In other words, the life of the panel is one year. For this purpose, it is essential for the concerned appointing authorities to initiate action to fill up the existing as well as anticipated vacancies well in advance of the expiry of the previous panel, by collecting relevant documents like A.C.Rs., integrity certificates, seniority list etc. for placing before the D.P.C. 6- D.P.Cs. should be converted every year, if necessary, on a fixed date, i.e. 1st of April or May. In the middle of the para, by way of amendment brought on May 13, 1995, it postulates that very often action for holding D.P.C. meeting is initiated after the vacancy has arisen. This results in undue delay in filling up of vacancies and causes dissatisfaction among those who are eligible for promotion. It may be indicated that regular meeting of D.P.C. should be held every year for 7 each category of posts so that approved select panel is available in advance for making promotions against vacancies arising every year. Under para 3.2 the requirement of convening annual meetings of the D.P.C. should be dispensed with only after a certificate has been issued by the appointing authority that there are no vacancies to be filled by promotion or no officers are due for confirmation during the year in question. It would, thus, be seen that D.P.Cs. are required to sit every year, regularly on or before 1st April or 1st May of the year to fill up the vacancies likely to arise in the year for being filled up. The required material should be collected in advance and merit list finalised by the appointing authorities and placed before the D.P.Cs. for consideration. This requirement can be dispensed with only after a certificate is issued by the appointing authority that there are no vacancies to be filled by promotion, or that no officers are due for confirmation, during the year in question.” In the facts of the above case, the Apex Court held that since the four members were due to retire in August, September, October 1994 and March 1995, there were anticipated vacancies likely to arise on permanent basis and promotion to them was to be made on regular basis, so the D.P.C. was required to be constituted before April 1994. The Apex Court therefore, upheld the direction given by the tribunal and held it to be in accordance with the procedure as stated above. The Apex Court therefore, declined to interfere with the orders of the Tribunal. 8 The learned Additional Solicitor General is not in a position to distinguish the judgment on facts. The observations of the Apex Court were rightly followed by the Tribunal. The very fact that respondent was found to be meritorious and suitable for promotion and his name was included in the panel by D.P.C., in the second half of 2003, itself justifies the directions given by the Tribunal. In view of the above position, we find no merit in the petition and the same is dismissed. CHIEF JUSTICE JUDGE SMP