Case: Union of India & Others Vs. N.C. Murali & Others

1. I.A. Nos. 3, 4, 7 & 8 have been filed praying for impleadment in the civil appeal as party respondents. The applicants claimed that they are senior officers and become eligible for promotion to the post. We have heard learned counsel for the applicants and permit them to intervene in the matter. 2. Civil Appeal No. 4156 of 2008 had been filed against the judgment and order dated 12.09.2005 of the High Court of Andhra Pradesh by which judgment the writ petition filed by the appellants challenging the order of the Central Administrative Tribunal, Hyderabad Bench, Hyderabad, dated 13.11.2003 was dismissed. The brief facts of the case as emerged from the pleadings of the parties are as follows : 3. The respondents were employed as Geophysicists in Geological Survey of India, a subordinate Department of Ministry of Mines. The post of Assistant Geophysicists was a group-B post and next grade in the said cadre is the post of Geophysicists (Jr.) Group-A. The promotion of Assistant Geophysicists was by two modes i.e., by direct recruitment and by promotion through UPSC with ratio of 1:1. There were large number of posts of Geophysicists (Jr.) lying vacant from 1984 till 1998 totalling 31 in number. Due to various reasons no DPC could take place for effecting the promotions in the Group-A post. Subsequently, the DPC met and promotions were effected w.e.f., 2001. The respondents and various intervenors were considered and promotion orders were issued. Before the aforesaid promotion could take place, the respondents had filed O.A. No. 119 of 2000 in the CAT in January, 2001 praying for direction to the Ministry of Finance to revalidate and fill up the vacancies of the post of Geophysicists and further to convert the Direct Recruits quota into the DPC quota as one time measure and fill the existing posts. During the pendency of the O.A., the DPC was convened on 30.10.2001. The Tribunal decided the matter ultimately vide its order dated 13.11.2003. The Tribunal noticed the fact that DPC had been held. The Tribunal, however, did not accept the prayer of the applicants with regard to the conversion of direct recruitment quota. However, the Tribunal to meet the ends of justice directed that the applicants be adjusted against the unfilled vacancies of respective years when the DPC was not held. The Tribunal directed proforma promotion to the Geophysicists according to the seniority and eligibility with retrospective effect against the vacancies of the respective years when they qualified for those posts. In paragraph 5 following directions were issued by the Tribunal :"Therefore, with a view to protect their seniority, we direct that proforma promotion should be given to the Geophysicists on their promotion, according to their seniority and eligibility with retrospective effect, adjusting them against the vacancies of the respective years when they qualified for these posts. In order to protect their consequential benefits in future promotions as per seniority and eligibility, accruing to them on giving them such retrospective seniority, we also direct the respondents to reallocate them with notional promotions for respective years when they would have get these promotions but for DPC not being held, which was denied to them due to no fault of theirs by not holding the DPCs for the respective years. As regards one time adjustment against the Direct Recruitment quota, it would be unfair, since as per the contentions of the applicants themselves, direct recruitment as per the vacancies in the quota had also not taken place. Therefore, such a step need not be taken. However, it would be fair and just that against the DPC quota, the officers, who had missed their promotions during the respective years when it was due and when they were qualified and eligible for it, it is directed to be given to them on notional basis. They, on promotion, may be allocated to the respective years of seniority through proforma promotion of respective years, which would have been due to them had the DPC been held regularly for those respective years and in case they were eligible and qualified and found fit for the same." 4. Aggrieved by the judgment passed by the Tribunal, the Union of India had filed the writ petition before the High Court. The writ petition was dismissed by the High Court against which this appeal has been preferred. 5. Learned counsel appearing for the Union of India in support of the appeal has contended that the DPC could not be held from 1984 to 2001 due to various reasons, including, the orders on different litigation before the Tribunal and further O.M. No. 35 of 1993 was issued by the Government wherein the Government had created ban on creation of posts and filling up of the vacancies. Learned counsel for the appellants further contends that there being no statutory rules entitling the applicants to claim promotion from the year the vacancy arose, the Tribunal had committed an error in directing retrospective promotion and giving seniority w.e.f. the year of the vacancy. It is contended that the direction of the Tribunal to that extent was unsustainable. The learned counsel appearing for the appellants has also placed reliance on the judgments of this Court in the case of State of Uttar Pradesh and Others v. Ashok Kumar Srivastava and Another, (2014) 14 SCC 720 and the Union of India and Others v. K.K. Vadera and Others 1989 Supp.(2) SCC 625.6. Learned counsel for the respondents and the intervenors submit that with no fault of the respondents DPC was not convened. Although as per the departmental circular DPC was to be convened every year and in fact there was no stay of not holding the DPC by the Tribunal, the respondents were entitled to their promotion from the respective year when the vacancy arose as per their eligibility. It is further contended that the benefit of retrospective promotion had been extended to the respondents under the orders of the Tribunal and most of the respondents who had availed of the benefit of such retrospective promotion, had already attained the age of superannuation and at this distance of time, the orders passed by the Courts be not interfered with. 7. We have considered the submissions of the learned counsel for the parties and have perused the records. When the matter was heard earlier, we had directed the parties to bring on record the necessary statutory rules and circulars governing the frequency with which DPC should be convened during the relevant period,i.e., 1984 to 2001. Learned counsel for the parties have filed certain circulars and other relevant material in support of their respective case. Learned counsel appearing for the Union of India has also referred to rules, namely, Geological Survey of India Geophysical Service Group A" Rules, 2013. He has also referred to the Government order dated 10.04.1989 on the subject of Departmental Promotion Committees and related matters-Consolidated instructions on-. 8. Learned counsel appearing for the respondents has referred to paragraphs 6.4.1 and paragraph 3.1 of the said circular. Paragraph 3.1 of the circular is as follows :"3.1 The DPCs. should be convened at regular annual intervals to draw panels which could be utilised on making promotions against the vacancies occurring during the course of a 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 CRs, integrity certificates, seniority list etc. For placing before the DPC. DPCs could be convened every year if necessary Legal on a fixed date 1st April or May. The Ministries/Departments should lay down a time schedule for holding DPCs under their control and after laying down such a schedule the same should be monitored by making one of their officers responsible for keeping a watch over the various cadre authorities to ensure that they are held regularly. Holding of DPC meetings need not be delayed or postponed on the ground that recruitment rules for a post are being reviewed/amended. A vacancy shall be filled in accordance with the recruitment rules in force on the date of vacancy unless rules made subsequently have been expressly given retrospective effect. Since Amendment to recruitment rules normally have only prospective application, the existing vacancies should be filled as per the recruitment rules in force." Further paragraph 6.4.1 on which reliance has been placed is to the following effect :"6.4.1 Where for reasons beyond control, the DPC not be held in a year(s), even though the vacancies arose during that year (or years), the first DPC that meets thereafter should follow the following procedures: i. Determine the actual number of regular vacancies that arose in each of the previous year(s) immediately preceding and the actual number of regular vacancies proposed to be filled in the current year separately. ii. Consider in respect of each of the, years, - those officers only who would be within the field of choice with reference to the vacancies of each year starting with the earliest year onwards. iii. Prepare a Select List by placing the select list of the earlier year above the one for life year and so on" 9. From the materials brought on the record it is clear that there are no statutory rules governing the promotion at the relevant time. It is although desirable that the DPC should be convened at regular intervals to draw panels which could be utilized for making promotions against the vacancies. But neither any rules nor any circular have been referred to by which it can be held that the promotions whenever to be effected should be effected w.e.f. the date of the vacancy. The Circular dated 10.4.1989, paragraphs 3.1 and 6.4.1 as reproduced above also do not indicate that in case DPC is not held by any reason in a year, promotions on the basis of subsequent DPC has to be retrospectively. 10. The judgment on which learned counsel for the appellants has placed reliance i.e., K.K. Vaderas, 1989 Supp.(2) SCC 625 (supra) also do support the submission raised by learned counsel for the appellants. Paragraph 5 of the judgment states as follows :"There is no statutory provision that the promotion to the post of Scientist B should take effect from July 1 of the year in which the promotion is granted. It may be that, rightly or wrongly, for some reason or other, the promotions were granted from July 1, but we do not find any justifying reason for the direction given by the Tribunal that the promotions of the respondents to the posts of Scientists B should be with effect from the date of the creation of these promotional posts. We do not know of any law or any rule under which a promotion is to be effective from the date of creation of the promotional post. After a post falls vacant for any reason whatsoever, a promotion to that post should be from the date the promotion is granted and not from the date on which such post falls vacant. In the same way when additional posts are created, promotions to those posts can be granted only after the Assessment Board has met and made its recommendations for promotions being granted. If on the contrary, promotions are directed to become effective from the date of the creation of additional posts, then it would have the effect of giving promotions even before the Assessment Board has met and assessed the suitability of the candidates for promotion. In the circumstances, it is difficult to sustain the judgment of the Tribunal." 11. With regard to the seniority the judgment which has been relied on is Ashok Kumar Srivastava reported in (2014) 14 SCC 720 (supra) in which this Court in paragraphs 24 and 25 laid down that the retrospective seniority cannot be conferred, which read as follows :"24. The learned Senior Counsel for the appellants has drawn inspiration from the recent authority in Pawan Pratap Singh v. Reevan Singh (2011) 3 SCC 267 : (2011) 1 SCC (L&S) 481 where the Court after referring to earlier authorities in the field has culled out certain principles out of which the following being the relevant are reproduced below: (SCC pp.281-82, para 45) "45.(ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution. xxx xxx xxx (iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime." 25. In view of the aforesaid enunciation of law, the irresistible conclusion is that the claim of the first respondent for conferment of retrospective seniority is absolutely untenable and the High Court has fallen into error by granting him the said benefit and accordingly the impugned order deserves to be lancinated and we so do." 12. Learned counsel appearing for the appellants also placed reliance on the judgment of this Court in the case of Nirmal Chandra Sinha v. Union of India and others and connected matter reported in (2008) 14 SCC 29. Paragraph 7 of the judgment reads as follows :"7. It has been held in a series of decisions of this Court that a promotion takes effect from the date of being granted and not from the date of occurrence of vacancy or creation of the post vide Union of India v. K.K. Vadera 1989 supp.(2) SCC 625 : 1990 SCC (L&S) 127, State of Uttaranachal v. Dinesh Kumar Sharma (2007) 1 SCC 683 : (2007) 1 SCC (L&S) 594, K.V. Subba Rao v. Govt. of A.P. (1988) 2 SCC 201 : 1988 SCC (L&S)506:(1988) 7 ATC 94, Sanjay K. Sinha-II v. State of Bihar (2004) 10 SCC 734 : 2005 SCC (L&S) 169 etc." 13. In view of the law laid down in the above-mentioned cases, it is clear that unless there is specific rule entitling the applicants to receive promotion from the date of occurrence of vacancy, the right of promotion does not crystallize on the date of occurrence of vacancy and the promotion is to extended on the date when it is actually effected. 14. However, there may be cases when the promotions have to be retrospectively made with or without financial benefits. A well known example of giving retrospective promotion is cases of sealed cover procedure when the recommendations are kept in sealed cover procedure awaiting the outcome of disciplinary proceedings. There may be other circumstances in which a person is entitled to be given the benefit of retrospective promotion including a case where statutory rules mandates effecting promotion by particular time or on occurrence of vacancy. The present is a case where admittedly DPC was not held from 1984 till October, 2001, although various reasons have been given by the appellants for not holding DPC, it is not necessary for us for the purpose of this case to enter into such reasons to find out as to whether there is any justification for not holding the DPC for the relevant years. Suffice it to say the promotions having been effected after the DPC was held and those who were entitled have been given promotions, the litigation initiated by the respondents before the Tribunal should have been closed. The directions of the Tribunal to give retrospective pro forma promotion and retrospective seniority w.e.f the date of vacancy when they were eligible, ought not to have been issued.

Decision reasoning: 0[ds]9. From the materials brought on the record it is clear that there are no statutory rules governing the promotion at the relevant time. It is although desirable that the DPC should be convened at regular intervals to draw panels which could be utilized for making promotions against the vacancies. But neither any rules nor any circular have been referred to by which it can be held that the promotions whenever to be effected should be effected w.e.f. the date of the vacancy. The Circular dated 10.4.1989, paragraphs 3.1 and 6.4.1 as reproduced above also do not indicate that in case DPC is not held by any reason in a year, promotions on the basis of subsequent DPC has to be retrospectively13. In view of the law laid down in thed cases, it is clear that unless there is specific rule entitling the applicants to receive promotion from the date of occurrence of vacancy, the right of promotion does not crystallize on the date of occurrence of vacancy and the promotion is to extended on the date when it is actually effected14. However, there may be cases when the promotions have to be retrospectively made with or without financial benefits. A well known example of giving retrospective promotion is cases of sealed cover procedure when the recommendations are kept in sealed cover procedure awaiting the outcome of disciplinary proceedings. There may be other circumstances in which a person is entitled to be given the benefit of retrospective promotion including a case where statutory rules mandates effecting promotion by particular time or on occurrence of vacancy. The present is a case where admittedly DPC was not held from 1984 till October, 2001, although various reasons have been given by the appellants for not holding DPC, it is not necessary for us for the purpose of this case to enter into such reasons to find out as to whether there is any justification for not holding the DPC for the relevant years. Suffice it to say the promotions having been effected after the DPC was held and those who were entitled have been given promotions, the litigation initiated by the respondents before the Tribunal should have been closed. The directions of the Tribunal to give retrospective pro forma promotion and retrospective seniority w.e.f the date of vacancy when they were eligible, ought not to have been issued.