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

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 (1 = appeal accepted, 0 = rejected): 0

Explanation:
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.