WA 83/2009 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI HON’BLE MR. JUSTICE B.P.KATAKEY Ranjan Gogoi, J This appeal is directed against the order dated 20.12.2007 passe d by a learned Single Judge of this court in a proceeding registered and numbere d as WP(C) No.7807/2001. By the aforesaid order directions have been issued to t he appellant Union of India to confer notional promotion to the respondent/ writ petitioner w.e.f. 29.6.91 i.e the date of conferment of such benefit of notiona l promotion to persons who were yet to be promoted to the cadre of Assistant Com mandant or were so promoted subsequent to the date when the respondent/ writ pet itioner was promoted i.e. 21.12.94. 2. The relevant facts that will be required to be noticed for the p urposes of the present adjudication may be briefly enumerated hereinunder: The respondent/ writ petitioner joined service in the Central In dustrial Security Force (CISF) as a Sub-Inspector on 23.10.74. On 14.12.81, he w as promoted to the post of Inspector. A promotee to the said post of Inspector w as required by the norms in force to remain on probation for a period of 1 ‰ yea rs. On 1.9.83 the respondent/ writ petitioner was arrested for his alleged invol vement in a criminal case. On the next date i.e. 2.9.83 he was placed under susp ension. The suspension order was revoked on 3.4.84 and the departmental proceed ing that was initiated against the respondent/ writ petitioner was dropped on 6. 11.87. Before that, the probation period of the respondent/ writ petitioner on a ccount of his suspension was extended by another term of 1 ‰ years though the re spondent/ writ petitioner technically completed the period of probation on 13.12 .83. Thereafter, the respondent/ writ petitioner was confirmed in the post of In spector w.e.f 1.1.88. On the basis of such confirmation his inter-se seniority i n the cadre of Inspector was fixed and on the basis of such inter-se seniority h e was found eligible for promotion to the cadre of Assistant Commandant in the y ear 1994 by the Departmental Promotion Committee. On being found so eligible, by an order dated 21.12.94 the respondent/ writ petitioner was promoted to the hig her cadre of Assistant Commandant. 3. Thereafter, it appears that pursuant to the order of the Apex Co urt in the case of Sewa Singh -vs- Union of India reported in 1991 Lab IC 28, th e dates of confirmation of the respondent/ writ petitioner along with many other incumbents in the cadre of Inspector were altered and such confirmation was mad e effective from the date following the completion of the period of probation af ter promotion to the post of Inspector. The above implementation of the order of the Apex Court in Sewa Singh (supra) called for a re-fixation of the inter-se s eniority of the concerned incumbents which was accordingly done. Thereafter, it transpired that many of the incumbents whose inter-se seniority had been upgrade d were not considered in the regular DPCs held in the years 1989 to 1996 for the purpose of consideration for promotion to the post of Assistant Commandant agai nst vacancies for the years 1987 to 1996. Accordingly, a decision was taken to h old review DPCs for recasting the panels for promotion to the cadre of Assistant Commandant for the years in question. The review DPC held its proceedings from 4th to 10th March, 1999, in the course of which the proceedings of 11 regular DP Cs held in respect of the vacancies for the years 1987 to 1996 were reviewed. In the said exercise of review the cases of 43 officers who were excluded from the purview of consideration in the regular DPCs were considered. Thereafter, yearw ise panel of the eligible persons were prepared and by an order dated 25.10.99, 24 persons, which included some persons who were yet to be promoted, were found to be eligible for promotion from various anterior dates. Such benefit was accor dingly granted by the order dated 25.10.99. 4. According to the respondent/ writ petitioner, the persons named in para 17 of the writ petition, the details of whom will be noticed in a subseq uent part of this order, were conferred such benefit and the respondent/ writ pe titioner stood excluded from such benefit. The said persons were still in the ca dre of Inspector on the date of the order i.e. 25.10.99 or were promoted as Insp ectors on dates later than the respondent/ writ petitioner. Thus, all such pers ons who were all along junior to the respondent/ writ petitioner in service had superseded him. Aggrieved by the aforesaid actions of the respondent authorities the writ petition in question i.e. WP(C) No. 7807/1001 was instituted essential ly seeking the relief of notional promotion with effect from the date when such benefit was given to his erstwhile junior(s). The learned Single Judge on the gr ounds and reasons assigned in the order dated 20.12.2007 having allowed the said relief, this appeal has been filed by the Union of India. 5. We have heard Mr KN Choudhury, learned senior counsel appearing on behalf of the appellant and Mr U Bhuyan, learned counsel for the respondent/ writ petitioner. 6. Mr KN Choudhury, learned counsel for the appellant at the outset placed the records of the original DPCs of the years 1989 to 1996 as well as th e entire records of the review DPCs held between 4th and 10th of March, 1999 for perusal of the Court. Mr. Choudhury has submitted that following the re-fixatio n of the inter-se seniority in the cadre of Inspectors pursuant to the order of the Apex Court in Sewa Singh (supra) the cases of several incumbents who were ei ther not considered for promotion or were belatedly considered on account of the ir earlier seniority position and the permissible zone of consideration had to b e reconsidered. Pointing out the relevant records which indicate that the bench mark for promotion to the cadre of Assistant Commandant is ’very good’ in any on e particular year, Mr Choudhury has submitted that in any year of consideration when such persons were found to be entitled for promotion on the basis of the la id down bench mark, the review DPC recommended such cases for promotion in that particular year. To give effect to such recommendations promotions were made wit h effect from the dates when due giving notional effect to any earlier period. A ccording to Mr Choudhury, the only year of consideration in which the respondent / writ petitioner had secured the required bench mark is 1994. Therefore, the re spondent/ writ petitioner was not entitled to promotion in any earlier year so a s to be entitled to the benefit of notional promotion with effect from an anteri or date as in the case of the persons named in para 17 of the writ petition. Mr. Choudhury has placed before the Court a chart showing the seniority positions of the persons named in para 17 of the writ petition, the dates of their regular promotion and the dates from which they were found to be entitled to promotion by the review DPC. The said chart which is reproduced below, according to Mr. Ch oudhury, indicates the dates of the actual entitlement to promotion of the conce rned incumbents named in para 17 of the writ petition to give effect to which th e impugned order dated 25.10.299 had to be issued. S/N Name of officer (S.Shri) Empanelled in the original DPC against t he vacancy year Date of regular promotion as AC/Exe as per original DPC Empanell ed in the review DPC against the vacancy year/ Assessment Date of notional promotion as AC/Exe as per review DPC with reference to his junior in the panel (1) (2) (3) (4) (5) (6) 1. M.K. Warman -- -- 1990/VG 29.06.91 2. Ramesh Mishra -- -- 1991/VG 11.12.92 3. S. Nedunchezhian 1993 26.12.94 1992/VG 06.01.94 4. S.L. Kumar 1996 29.11.96 1992/VG 13.11.92/AN 5. S.K. Adgule 1995 16.02.96 1992/VG 15.12.92 6. Nathu Lal (SC) 1996 24.11.96 1993/G * 29.11.94/AN 7. T.N.Chandhoke -- -- 1994/VG 07.12.94 8. Nihal Singh (SC) -- -- 1994/AV * 22.1.94 9. D.N. Rai (The petitioner) 1994 21.12.94 1994/VG No chang e i.e. 21.12.94 • Empanelled for notional promotion by applying relaxed standard for the r eserved category as per Govt. instructions. On the aforesaid broad basis, it is the contention of Mr Choudhu ry that there is no infirmity in the impugned order or the impugned actions take n by the respondents in the present case. 7. Controverting the submissions advanced by Mr KN Choudhury, learn ed counsel for the appellant, Mr U Bhuyan, learned counsel for the respondent/ w rit petitioner has submitted that the impugned order dated 25.10.99 has caused e normous prejudice to the respondent/ writ petitioner, inasmuch as, his erstwhile juniors have stolen a march over him by virtue of their notional promotions wit h effect from earlier dates. Mr Bhuyan has submitted that in the facts and circu mstances of the case the respondent/ writ petitioner should have also been affor ded the benefit of notional promotion from an earlier date, inasmuch as, such b enefit has been granted to persons who were not borne in the cadre of Assistant Commandant at the relevant point of time. Pointing out the inequities of the sit uation and the adverse consequences that the impugned action of the respondents have brought about in the service career of the respondent/ writ petitioner, Mr Bhuyan has argued that the ultimate direction issued by the learned Single Judge is fair, just and proper and hence, would call for no interference by this Cou rt. 8. We have considered the rival submissions advanced on behalf of t he parties. We have also perused the records as placed before us on behalf of th e appellant. The minutes of the meetings of the DPC held between 4th and 10th o f March, 1999 clearly indicates that 43 Inspectors whose seniority was revised f ollowing the judgment of the Apex Court in Sewa Singh (supra) had to be reconsid ered for the purpose of their entitlement for promotion to the cadre of Assistan t Commandant. This is because persons who became junior to the aforesaid 43 offi cers by virtue of the recast seniority had been wrongly considered for promotion and the aforesaid 43 officers had been left out from the process of a due and p roper consideration of their cases at the time when their cases ought to have be en considered. Therefore, on the different dates between 4th and 10th March, 199 9 the DPC which consisted of a representative of the UPSC proceeded to consider the officers who came within the zone of consideration on the basis of the recas t inter-se seniority and in the light of the number of vacancies available for e ach year. Accordingly, yearwise panel was prepared keeping in mind the benchmark of ’very good’ as prescribed. As and when an officer was found to have attained the required bench mark and if his seniority position permitted his promotion, such officer was included in the panel of any particular year under reconsiderat ion for the purpose of promotion. In this manner the persons named in para 17 of the writ petition were found to be entitled for promotion from different anteri or dates. A consideration of the proceedings of the review DPC indicates that th ough the respondent/ writ petitioner had come within the zone of consideration i n the years preceding the year in which he was found fit for promotion, he had a ttained the bench mark of ’very good’ only in the year 1994 and not in any of th e said preceding years. Accordingly, while the position of many of the incumbent s whose cases were considered by the review DPC had undergone a transformation, the case of the respondent/ writ petitioner remained the same, namely, that even in the review DPCs he was found entitled to be promoted in the year 1994 and no t in any earlier year. 9. In this regard, from the counter affidavit filed by the responde nts before the learned Single Judge and the documents appended thereto we have f ound that in each of the years under consideration officers with the bench mark of ’very good’ alone were found fit and eligible for promotion (except reserved category candidates). The details in this regard have been stated in an enclosur e to the counter affidavit which has been duly perused by us. 10. The above discussion would leave us satisfied that the grant of notional promotion from earlier date(s) to the several incumbents named in para 17 of the writ petition was on due and proper consideration of the entitlements of the said incumbents for promotion in accordance with the norms prescribed and in the light of the altered situation brought about by the realignment of the i nter-se seniority in terms of the order of the Apex Court in Sewa Singh (supra). The said discussion would also squarely indicate that the respondent/writ petit ioner was eligible for promotion only in the year 1994 and the promotion so conf erred was not liable to be antedated. The respondent/ writ petitioner not being so entitled it will not be permissible in law to antedate the said promotion of the respondent/ writ petitioner on the grounds urged before us, namely, that his erstwhile juniors had become senior to him. If such a course of action is manda ted by the law and the norms in force, the situation that has resulted must be a llowed to prevail. The plea of prejudice raised, therefore, is not well founded in law. Consequently, the impugned actions cannot be corrected by us in exercis e of our jurisdiction under Article 226 of the Constitution. 11. For the aforesaid reasons, we are inclined to take the view that this appeal ought to be allowed and the order passed by the learned Single Judg e should be interfered with. We, therefore, order accordingly leaving the partie s to bear their own costs.