IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION WRIT WRIT WRIT PETITION NO. 768 OF 2004 PETITION NO. 768 OF 2004 PETITION NO. 768 OF 2004 Captain Vipin Das Baijal, ] working as Deputy Nautical Advisor, ] in the office of Marine Mercantile ] Department, Mumbai, residing at Flat ] N.12, Block No.B, Type V, Ekata Vihar, ] Sector 25, CBD Belapur, ] Navi Mumbai - 400 614. ] .. Petitioner Versus 1. The Union of India, through the ] Secretary, Ministry of Surface ] Transport, New Delhi. ] 2. The Directorate General of Shipping ] Jahaj Bhavan, Walchand Hirachand ] Marg, Ballard Estate, Mumbai-400001 ] 3. The Secretary, ] Union Public Service Commission, ] Dholpur House, New Delhi. ] 4. Capt. L.K. Panda, ] working as Deputy Nautical Advisor, ] in the Office of the Directorate ] General of Shipping, Jahaj Bhavan, ] Walchand Hirachand Marg, Ballard ] Estate, Mumbai - 400 001. ] .. Respondents Mr. S.V. Marne for the petitioner. Mr. N.D. Sharma for the respondents. CORAM: F.I. REBELLO & ANOOP V. MOHTA, JJ. DATED: 22ND MARCH, 2006 ORAL JUDGMENT. : [Per Anoop V. Mohta, J.] . Petitioner has invoked the provisions of : 2 : Article 226 of the Constitution of India and sought to challenge an order dated 20th June, 2003, passed by the Central Administrative Tribunal [CAT], Mumbai Bench, Mumbai, whereby his Original Application No.85 of 2003 was dismissed. Petitioner, being aggrieved by an order dated 11th November, 2001, issued by the respondent No.1, whereby respondent No.4 who is junior to the petitioner has been promoted as Deputy Nautical Advisor (for short DNA) against the vacancy of the year 1999-2000, whereas the petitioner has been promoted against the vacancy of the year 2000-2001, had preferred the said Original Application before CAT. 2. The petitioner was appointed as Nautical Surveyor in the office of the Director General of Shipping on 15th March, 1991. Respondent No.4 was appointed as Nautical Surveyor on 17th December, 1993. Petitioner obtained degree of M.Sc. from World Maritime University, Malmo, Sweden some time in December 1997. Petitioner appeared for the Part B Examination in September, 1998 as, in view of the Circular dated 16th October, 1995 issued by respondent No.2, Part A and D of the examinations were not required to be passed by a candidate who held M.Sc. degree from World Maritime University, Sweden. The remaining examination of one paper of Part C was held in December 1998 and the : 3 : petitioner appeared accordingly. The petitioner was declared successful in January, 1999. Petitioner, therefore, became eligible for Extra Master’s Competency Certificate. The said Certificate of Competency as Extra Master came to be issued to the petitioner on 19th February, 1999, with specific reference that the petitioner has passed the examination in December, 1998. 3. As per the Recruitment Rules, the essential qualifications for departmental candidates for promotion to the post of Deputy Nautical Advisor (for short DNA) are (i) Extra Master’s Certificate of Competency (ii) experience in command of foreign going ships and (iii) 5 years of regular service in Nautical Surveyor’s grade. The petitioner, therefore, since passing of examination in December, 1998, was eligible for the promotion to the post of Deputy Nautical Advisor against the vacancy of the year 1999-2000. 4. On 21st June, 1999, one post of DNA was created. Sometime in January 2001, one more vacancy of DNA was created by promotion of one Captain. The petitioner was promoted as DNA on ad-hoc basis with effect from 5th February, 2001. As per the Regulations, a DPC for regular promotion to the post of DNA for the two vacancies was constituted. It appears that on : 4 : recommendations of the DPC, respondent No.1 passed an order dated 11th November, 2001 and promoted respondent No.4 for the vacancy of 1999-2000 and the petitioner for the vacancy of 2000-2001 on the foundation that the petitioner got his Extra Master’s Certificate of Competency only on 19th February, 1999 and, therefore, on 1st January, 1999, he was not qualified on the list of Officers who were to be considered for the promotion in question. Respondent No.4, alongwith others, possessed the Certificate of having qualified in the examination in January, 1999. The petitioner, therefore, made representations dated 19th November, 2001 and 18th December, 2001 and brought to the notice of respondent No.1, the illegality in promoting the petitioner for 2000-2001 instead of the vacancy for the year 1999-2000. The senior officers, however, failed to consider the case of the petitioner in their meeting dated 1st February, 2002. Petitioner, therefore, by a representation dated 27th February, 2002 to respondent No.2 brought to their notice, a letter dated 16th January, 1962, of the Government of India, Ministry of Revenue, which provides that the benefits of advance increment are payable from the date following the date of prescribed examination and not from the date of publication of results. Another representation was made on 26th December, 2001, and brought out all these : 5 : details with further intimation to challenge the decision by approaching CAT. Petitioner thereafter preferred Original Application No.85 of 2003 in CAT, Mumbai Bench on 27th March, 2003. By the impugned order the said application was dismissed. On 28th January, 2004, the petitioner preferred the present Writ Petition. 5. Admittedly, the examination for Certificate of Competency in question is a departmental examination. As per the essential condition for promotion to the post of DNA if taken note of, then petitioner was eligible itself for the promotion to the post of DNA. He was disqualified for the year 1999-2000 only on the ground that the Certificate of Competency was dated 19th February, 1999. Respondent No.4 was qualified for the post of DNA of 1999-2000 only on the foundation that he had the Certificate of Competency of the year 1993. The seniority of the petitioner, therefore, was completely overlooked. The said Certificate dated 19th February, 1999, itself mentioned that the petitioner has passed the examination at Mumbai in December, 1998. We are, therefore, accepting the contention of the petitioner’s counsel that date of issuance of such Certificate is immaterial. What is material for the purpose of promotion as per Service Rules is the passing of : 6 : examination in question. Therefore, admittedly, as the petitioner has passed the examination in December 1998, he was eligible for the future promotion in the next academic year i.e. on 1st January, 1999 itself. The respondents’ case, therefore, that the petitioner had not passed the Extra Master’s Certificate of Competency on 1st January, 1999, is totally wrong. The crucial date for considering eligibility, even as per the Certificate of Competency dated 19th February, 1999, should be the date of passing of the examination and not the date of issuance of such Certificate as done in the present case. 6. This view is further supported by the notice No.2 of 1989 (Exh.U), wherein it has been mentioned that "the Officer holding a Certificate of Competency for which they have passed an examination for more than 5 years before, will need to apply to the Mercantile Marine Department for such revalidation." As per this an Officer must apply to the Mercantile Marine Department for revalidation of Competency Certificate, after expiry of 5 years from the date of passing of the examination. Therefore, the important date is of the passing of the examination and not the date of issuance of Certificate of Competency. : 7 : 7. The respondents, therefore, were wrong while discarding the petitioner’s right of promotion as he was eligible on 1st January, 1999, for the vacancy for the year 1999-2000. On the date of the order in question, the Certificate dated 19th February, 2002, with the endorsement of passing of examination in December, 1988, by the petitioner was therefore before the DCP. Such endorsement of passing of examination should not have been overlooked by the Committee, as well as, by respondents No.1 to 3. It also means that on the date of consideration for the promotion in question i.e. 11th November, 2001, admittedly petitioner has possessed the requisite qualification. 8. The Apex Court in Purandas Vs. Union of Purandas Vs. Union of Purandas Vs. Union of India, India, India, Judgment Today, (2006) 2, SCC, 565 Judgment Today, (2006) 2, SCC, 565 Judgment Today, (2006) 2, SCC, 565 has held that the candidate should possess the requisite qualification on the date of consideration. Therefore, in such cases, when a candidate possessed the requisite qualification on the date of consideration of promotion, there was no reason for respondents No.1 to 3 to promote respondent No.4 instead of the petitioner. 9. There is nothing to show even in the reply filed by respondent No.3 that for such promotion, the crucial date was the date of issuance of such : 8 : Certificate and not the date of passing of the examination. On the contrary, the petitioner has brought on the record and pointed out in his representation dated 27th February, 2002, a letter dated 16th January, 1962, of the Government of India, Ministry of Revenue, that the benefits of advance increments are payable from the date following the date of prescribed examination and not from the date of publication of the results. There is no denial to the letter and the representation in Affidavit in reply. 10. Petitioner has further relied on a Division Bench judgment in T. Shair Saheb & Ors. Vs. State of T. Shair Saheb & Ors. Vs. State of T. Shair Saheb & Ors. Vs. State of Mysore Mysore Mysore & Ors., AIR 1976, Mysore, 26 & Ors., AIR 1976, Mysore, 26 & Ors., AIR 1976, Mysore, 26 in support of his contention that a reasonable view would be to take the date of passing of departmental examination and not the issuance of the Certificate. We are also of the view that what is required, unless proved contrary, is that the date of passing of examination should be the criteria for promotion and not the date of issuance of Certificate. In the present case, therefore, admittedly the petitioner has passed the examination in December, 1998. Therefore, on 1st January, 1999, he was eligible for promotion in the future vacancy. In the present case, on 21st June, 1999, and in January 2001, there were two vacancies for the post of DNA. The petitioner, : 9 : in fact, was promoted on ad-hoc basis with effect from 5th February, 2001. Respondent No.4 was not promoted even on this date. However, on recommendation of DPC by order dated 11th November, 2001, respondent No.1 has wrongly promoted respondent No.4 for vacancy of 1999-2000. In our view, the petitioner ought to have been considered for the post of DNA for the vacancies of 1999-2000. The promotion of the petitioner for vacancy of 2000-2001, even though he was admittedly senior to respondent No.4, was illegal and contrary to law. 11. The petitioner’s counsel has further relied on Chhotu Chhotu Chhotu Ram Vs. State of Haryana & Ors., (2000) 10 Ram Vs. State of Haryana & Ors., (2000) 10 Ram Vs. State of Haryana & Ors., (2000) 10 S.C.C., S.C.C., S.C.C., 399, 399, 399, whereby the Apex Court while considering the case of promotion in the Haryana Public Works Department based on the clarification issued by the Government of Haryana, observed that "the person must be considered to be eligible with reference to the date of examination as the examination had been conducted before the cut-off date". 12. No one appeared for respondent No.4 even though served and no Affidavit in defence has been filed on his behalf. However, considering the fact of lapse of time, we are not inclined to pass any adverse order against respondent No.4. : 10 : 13. In view of the above, we are of the view that the impugned order promoting respondent No.4 dated 11th November, 2001, and confirmation by the CAT by its order dated 20th June, 2003, are unsustainable. Respondent No.4 who was admittedly junior to the petitioner could not have been promoted to supersede the petitioner for the vacancy of the year 1999-2000 even though respondent No.4 had passed the qualifying examination in 1993. There is nothing in the Recruitment Rules to suggest that the Extra Master’s Certificate of Competency on the crucial date is necessary for considering the eligibility of the person like the petitioner on 1st January, 1999, for the vacancy of the year 1999-2000. In absence of any specific rules, we are inclined to take the view that the crucial date is of passing of the examination and not the issuance of the Certificate in question. The possession of the Certificate on 1st January, 1999, is not relevant. What is relevant is the passing of the examination. In view of this, the impugned judgment of CAT dated 20th June, 2003, is quashed and set aside. 14. In view of this, we are of the view that the petitioner ought to have been promoted to the post of DNA for the vacancy of 1999-2000. The petitioner is, : 11 : therefore, entitled for the necessary promotion and all other consequential benefits as DNA for the vacancy of the year 1999-2000 insofar as further promotion and all other consequential benefits. We are not inclined to grant any monetary benefits and/or arrears to the petitioner at this stage of the proceedings. However, the petitioner is entitled for his seniority as a DNA in the vacancy of the year 1999-2000 and all consequential benefits arising out the same in future. 15. The Petition, therefore, is allowed in terms of prayer clauses (a) and (b). However, with modification that the petitioner is not entitled for any monetary benefits. Petitioner should be treated as deemed to be promoted in the vacancy of 1999-2000 with all consequential benefits except monetary consideration. The Petition is accordingly disposed of with no order as to costs. Sd/- [F.I. [F.I. [F.I. REBELLO, J.] REBELLO, J.] REBELLO, J.] Sd/- [ANOOP [ANOOP [ANOOP V. MOHTA, J.] V. MOHTA, J.] V. MOHTA, J.]