IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 5400-CAT of 2010 Date of Decision: September 16, 2010 Union of India and another …Petitioners Versus Er. R.K. Rangra and another …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MS. JUSTICE RITU BAHRI Present: Mr. Namit Kumar, Advocate, for the petitioners. Mr. Sanjiv Pandit, Advocate, for respondent No. 1. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. A short question of law raised in this petition filed under Article 226 of the Constitution is “could a retired officer claim promotion after his retirement merely because his old time junior has been given promotion later on.” The Union of India and its officers have challenged order dated 30.7.2009 (P-5), passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh, allowing O.A. No. 5/PB/2007, filed by the applicant-respondent No. 1. He has been held entitled to promotion with all consequential benefits including arrears to the post of Executive Engineer against the vacancies of the year 2004, from the date his old time junior was CWP No. 5400-CAT of 2010 promoted. 2. Brief facts of the case are that the applicant-respondent No. 1 was working as Assistant Engineer in the petitioner department. The further channel of promotion from the post of Assistant Engineer is to the post of Executive Engineer in terms of the Rules known as ‘the Indian Defence Service of Engineers (Recruitment and Conditions of Service) Rules, 2004 (for brevity, ‘the Rules). It is conceded position that the applicant- respondent No. 1 was eligible and entitled to be considered for promotion to the post of Executive Engineer for the panel prepared for the year 2004-05. However, due to certain dispute regarding distribution of vacancies amongst Assistant Engineers and Assistant Executive Engineers, the process of selection could not be finalised before 30.4.2005 when the applicant- respondent No. 1 stood retired. In the year 2006, the Departmental Promotional Committee (DPC) met to consider various persons for promotion from the post of Assistant Engineer to that of Executive Engineer. On 11.8.2006, the DPC made recommendations for promotion of various officers. The name of the applicant-respondent No. 1 was also considered by the DPC. However, he was not promoted in view of his retirement on 30.4.2005 and the promotions were made prospectively. 3. The applicant-respondent No. 1 filed representations dated 19.8.2006 and 26.8.2006, seeking promotion to the post of Executive Engineer, which were considered and rejected vide letter dated 1.9.2006 (A-1). He then approached the Tribunal by filing the aforementioned OA. The Tribunal allowed the OA vide order dated 30.7.2009 (P-5). 4. Having heard learned counsel for the parties and perusing the paper book with their able assistance we are of the considered view that there is merit in this petition. A similar controversy came up for 2 CWP No. 5400-CAT of 2010 consideration before a Full Bench of this Court in the case of P.D. Nagpal v. State of Haryana, 2000 (4) S.C.T. 122. In that case the petitioner Shri P.D. Nagpal had been working as Accounts Officer in the office of the General Manager, Haryana Roadways, Panipat. On 18.10.1996, he and some others were promoted as Senior Accounts Officers with effect from the date they had taken over as such. He was posted as Senior Accounts Officer in the office of Chief Administrator, Haryana Urban Development Authority, Panchkula. The said order reached the office of the General Manager on 13.11.1996 but by then the petitioner had retired from service on 31.10.1996 on attaining the age of superannuation. Later on he represented to the department that he be treated as having retired from the promotional post of Senior Accounts Officer and his retiral benefits be computed accordingly. He filed the writ petition placing reliance on a Division Bench judgment of this Court rendered in the case of Hawa Singh Deswal v. State of Haryana, 1995 (2) RSJ 486. The matter was referred to the Full Bench. The Full Bench considered the question ‘as to when does an order appointing/promoting an officer takes effect’. The Full Bench considered various judgments of Hon’ble the Supreme Court rendered in the cases of State of Punjab v. Balbir Singh, 1976 (1) SLR 36; State of Punjab v. Khemi Ram, AIR 1970 SC 214; State of Punjab v. Amar Singh Harika, AIR 1966 SC 1313; Partap Singh v. State of Punjab, AIR 1964 SC 72; and Dr. Amarjit Singh Ahluwalia v. State of Punjab, AIR 1975 SC 984. The Full Bench found that the said question stands concluded by the judgment of Hon’ble the Supreme Court in the case of Dr. Amarjit Singh Ahluwalia (supra) and went on to extract the following observations made by their Lordships’ of Hon’ble the Supreme Court: 3 CWP No. 5400-CAT of 2010 “ .....An order of appointment may be of three kinds. It may appoint a person with effect from the date he assumes charge of the post or it may appoint him with immediate effect or it may appoint him simpliciter without saying as to when the appointment shall take effect. Where the order of appointment is of the first kind, the appointment would be effective only when the person appointed assumes charge of the post and that would be the date of his appointment. It would be then that he is appointed. But in a case of the second kind, which is the one with which we are concerned since the order dated 8th April, 1964 appointed respondents Nos. 3 to 19 to PCMS Class-I "with immediate effect", the appointment would be effective immediately irrespective as to when the person appointed assumes charge of the post. The date of his appointment in such a case would be the same as the date of the order of appointment. It is, therefore, obvious that so far as respondents Nos. 3 to 19 were concerned, the date of their appointment was 8th April, 1964 and the length of their continuous service in PCMS Class-I was required to be reckoned from the date. It is true that respondents Nos. 3 to 19 did not assume charge of their respective posts of the promotion until after 25th April, 1964 but that makes no difference because the length of continuous is to be counted from the date of appointment on the hypothesis that once the appointment is effective the person concerned is in the post and his service in the post is deemed to have commenced though under the rules governing his 4 CWP No. 5400-CAT of 2010 conditions of service he may not be entitled to the salary and allowances attached to the post until he assumes charge of the post. The continuous service of respondents Nos. 3 to 19 in PCMS class-I, therefore, commenced from 8th April, 1964 and since that was longer than the continuous service of Dr. Jagjit Singh and the appellant in Public Health Service Class-I, which commenced only on 25th April, 1964, respondents Nos. 3 to 19 were entitled to be placed senior to Dr. Jagjit Singh and the appellant in the joint seniority list of the integrated PCMS Class-I.” 5. While dismissing the writ petition of P.D. Nagpal and distinguishing the case of Hawa Singh Deswal (supra), the Full Bench in paras 4 and 5 further observed as under: “4. In the case before us, the petitioner was promoted as Sen- ior Accounts Officer with effect from the date he was to take over as such. Thus, his appointment according to the law laid down by the Supreme Court in Dr. Amarjit Singh's case (supra), was to become effective with effect from the date when he was to assume charge of the promoted post. Since he did not assume charge of that post he was never appointed to the promotional post and the order of promotion qua him did not become effec- tive or operative and he must, therefore, be held to have retired as An Accounts Officer and consequently he is entitled to the retiral benefits attached to the post from which he retired. He cannot claim benefits attached to the promotional post. 5 CWP No. 5400-CAT of 2010 5. Now coming to the judgment of this Court in Hawa Singh Deswal's case (supra). In that case, the petitioner therein who was working as a Master in Middle School, Gangoli, Dis- trict Jind had been promoted as Headmaster by order dated 20.1.1994 and posted at Gangana, District Sonepat. The order did not reach the petitioner till 31.1.1994 when on attaining the age of superannuation he retired from government service. He claimed the benefits of the promotional post which were denied to him by the State Government. He filed a writ petition which was allowed by the Division Bench observing that the status of Headmaster had been conferred on him on 20.1.1994 when he was promoted. It was observed that "simply because the order could not be communicated to the petitioner well in time to en- able him to join the post before his retirement should not in the circumstances deprive him of the benefits of the post Headmas- ter for all interests and purposes. He has to be treated as Head- master with effect from 24.1.1994 and retired as such". It is not clear from the judgment as to whether the petitioner therein was promoted on 20.1.1994 with 'immediate effect' or with effect from the date he was to assume charge or whether he was pro- moted simpliciter without stating as to when the order of pro- motion was to take effect. We sent for the original records of CWP 15236 of 1994 filed by Hawa Singh Deswal and found that the annexures to the writ petition had been destroyed. It could not, therefore, be ascertained as to what was the nature of the order promoting Hawa Singh Deswal. If he had been pro- 6 CWP No. 5400-CAT of 2010 moted with immediate effect the view taken by the Division Bench is correct but if the promotion was to take effect from the date he assumed charge of the promotional post then the ob- servations made therein run counter to the law laid down by the Supreme Court in Dr. Amarjit Singh's case (supra). We are, therefore, of the view that the judgment of this Court in Hawa Singh Deswal's case (supra) is of no assistance to the petitioner before us.” 6. When the facts of the instant petition are considered in the light of the aforementioned observations made by the Full Bench in P.D. Nagpal'- s case (supra), the present case is even on better footing if considered from the petitioner’s point of view. The name of the applicant-respondent No. 1 was not recommended by the DPC on 11.8.2006 because he stood superan- nuated on 30.4.2005. Naturally a retired person cannot claim promotion merely because his erstwhile junior has been given promotion after his su- perannuation. In the case of P.D. Nagpal (supra) despite the fact promotion was ordered and before joining on the promoted post he had retired, the Full Bench did not grant him any benefit. Therefore, we have no hesitation to hold that the Tribunal has reached a totally erroneously conclusion in allow- ing the OA filed by the applicant-respondent No. 1. 7. As a sequel to the above discussion, instant petition is allowed. The impugned order dated 30.7.2009, passed by the Tribunal is hereby set aside. (M.M. KUMAR) JUDGE 7 CWP No. 5400-CAT of 2010 (RITU BAHRI) September 16, 2010 JUDGE Pkapoor 8