THE HON’BLE SRI JUSTICE V. ESWARAIAH AND THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR W.P.No.13708 of 2000 02-09-2009 Between: The Union of India, rep. by its Chief Postmaster General, Hyderabad and two others. ………..Petitioners and M.Chalapathy ………..Respondent THE HON’BLE SRI JUSTICE V. ESWARAIAH AND THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR W.P.No.13708 of 2000 ORDER: (Per Hon’ble Sri Justice Vilas V. Afzulpurkar) This writ petition questions the order of the A.P. Central Administrative Tribunal (for short ‘the CAT’) in O.A.No.1433 of 1998, dated 22-12-1999. 2. The respondents in the O.A. are petitioners herein. The said O.A. came to be filed at the instance of the respondent herein, who was earlier appointed as a ‘Sorting Assistant’ in the department of Posts. His grievance in the said O.A. is that he was promoted to the post of ‘Time Bound One Promotion’ (T.B.O.P.) under D.P.C. held on 10-09-1990 and as per recommendation of the said D.P.C., he was given the said promotion with effect from 11-12-1988. It appears that the said promotion is granted to the employee who has completed 16 years of service. It further appears that later, the 2nd petitioner-Post Master General, Kurnool, found in his order No.ST-II/PS/III, dated 06-09-1994, that the respondent was irregularly promoted in spite of the fact that he had not completed 16 years of service. The 2nd petitioner, therefore, accordingly, directed review of his promotion post and the D.P.C. once again met and reviewing the promotion under the review D.P.C., dated 12-02-1997 and while recalling the promotion made on 11-12-1988, they granted same promotion to the respondent but with effect from 13-05-1990. The same was preceeded by issue of show cause notice and a reply to the 2nd petitioner, which was later rejected by the 2nd petitioner on 26-06-1997. The said withdrawal of promotion was questioned by the respondent before the CAT, Hyderabad. The petitioners, opposed the said O.A., on the ground that the promotion granted to the respondent with effect from 11-12-1988 itself was irregular inasmuch he has not completed 16 years of service and he was not entitled to the said promotion and the said promotion having been found irregular, it was rightly reviewed by the D.P.C. It was also pointed out that since the respondent completed 16 years of service when the promotion available to him was granted with effect from 13-05-1990 and the mistake which occurred in promoting him earlier with effect from 11-12-1988 was rectified. The CAT considered these submissions but was of the view that an order passed by the 2nd petitioner dated 06-09-1994 cannot retrospectively affect the interest of the respondent and consequently set aside the proceedings and allowed the O.A. Questioning the same, the present writ petition is filed. 3. We have heard the learned counsel appearing on either side. 4. It is not denied nor it is found in the impugned order of the CAT that the respondent had already completed 16 years of service and was eligible to be promoted as on 11-12-1988. The said promotion being irregular, therefore, stands apparent from the records. If the said promotion was irregular, the respondent cannot claim a right to be promoted with effect from that date and the said erroneous order is apparently corrected by proceedings of the 2nd petitioner, dated 06- 09-1994 and later, by review D.P.C., the respondent has been later promoted to the post, when he reached the eligibility and entitlement there for on 13-05-1990. Since there cannot be any estopel against the statute, the view of the CAT that even an irregular promotion cannot be withdrawn by retrospective effect is not sustainable. 5. We are, therefore, of the view that the decision of the review D.P.C. revising the promotion of the respondent from 11-12-1988 and granting it with effect from 13-05-1990 needs no interference. However, since the respondent has admittedly worked in that said promotional post from 11-12-1988, and as per the decision of the review D.P.C., it cannot be said that the respondent is responsible for the said promotion, even accepting that it was irregular. Therefore, the respondent has worked in the said post till his promotional date was set right by the review D.P.C. with effect from 13-05-1990. The benefits which the respondent has availed in the said promotional post cannot be recovered as he cannot be said to be responsible for the said erroneous order of D.P.C. 6. The writ petition, is therefore, allowed setting aside the order of the CAT, Hyderabad, and it is directed that though the respondent shall be deemed to have been promoted to the said post of T.B.O.P. with effect from 13-05-1990, no recovery, however, shall be made from the respondent for the period he has worked in the said promotional post on the basis of earlier D.P.C. 7. Subject to the above, the writ petition is allowed. There shall be no order as to costs. _____________________ JUSTICE V. ESWARAIAH _____________________________ JUSTICE VILAS V. AFZULPURKAR Dt.02.09.2009 KVR