M.P Gupta v. Union Of India And Others

S.K.S Chib, Vice-Chairman and K.B Khare, Member (J):— This is a miscellaneous application filed by the petitioner for alleged non-compliance or partial implementation of the decision dated 19.5.86 in M-73(J) of 1986 (T) decided by the Allahabad Bench of the Central Administrative Tribunal in their circuit at Jabalpur which was a predecessor Bench of this Tribunal. In the afore-said petition originally filed on 20.3.85 before the M.P High Court and subsequently transferred to the Allahabad Bench, the petitioner who was Deputy General Manager, Gun Carriage Factory, Jabalpur had sought relief in matter of promotion against the Respondents' order suspending him for the next higher post of Joint General Manager, direction to expunge adverse remarks in ACR's for the periods ending 30.9.81 and 30.9.83 as having been recorded in violation of Rules/Instructions and seeking a writ to respondents 1 & 2 Union of India and Chairman/Director General, Ordnance Factory Board to convene a Special Review DPC to consider the petitioner's promotion by ignoring the aforesaid adverse C.R's.

2. This petition was substantially allowed by the Allahabad Bench in their Judgment dated 19.5.1986 in M-73 (J) of 1986 (T) in the following terms which is the operative para 9 of their judgment:

“In the result we declare that the confidential reports for the years 1981 & 1983 are void and should not form the basis for arriving at the conclusion by the DPC. A review DPC to be held on the presumption that no CR's were written in these two years and if the petitioner meets with the requirements of the selection procedure, he should be given his proper place in the panel declared on 21.9.84 We do not consider it necessary to quash the promotion order of, 21.9.84 from SI. No. 27 to 52. We make no order as to costs.”

3. Subsequent to the above order of the Allahabad Bench, it is an admitted fact a review DPC was held and the petitioner promoted to the post of Joint General Manager/Director and he took over charge of the higher post on 29.8.86 consequent to OF Board's order No. 381.A/G/1 dated 29.8.86 (Annexure-I). The seniority of the petitioner was fixed by OF Board's Order of 6.11.86 (Annexure-II) below Shri K.G Pappachen and above Shri Deya Prakash.

4. The applicant, not satisfied with this claim that his effective promotion should have been ordered from 29.9.84 when other promotees junior to him were promoted vide OF Board's order No. 381.A/G dated 21.9.84 and full, retrospective emoluments of the higher post should have been paid to him with effect from 29.9.84 He filed a representation in this connection to the Secretary Ministry of Defence dated 21.10.86 (Annexure-III) and claimed, in the light of judgment of Punjab High Court in case of Charan Das Chadda v. State of Punjab, 1980(3) SLR 703, that effective and not merely notional promotion should have been given from 29.9.84, on the ground that the Allahabad Bench had struck down the offending ACR's for years 1981 and 1983 declaring them null and void and therefore the review DPC should have placed themselves in the position of 1984 DPC as if they were meeting then, and given him monetary benefits as well in terms of effective promotion from 29.9.84 In this connection the petitioner also claimed financial relief accruing therefrom amounting to Rs. 5399 in his representation. There was no response to this representation after which the applicant filed this miscellaneous petition which is neither a review application nor a contempt application under section 17 of the Act.

5. The main point raised by the petitioner is that he has been effectively promoted from 29.8.86 and not from 29.9.84 and he is entitled to differential financial benefits as well, because the review D.P.C ought to have considered his claim retrospectively and not prospectively since his adverse C.R's of 81 & 83 were declared null and void by the Allahabad Bench of the Tribunal. He has relied on the Punjab High Court Judgment of Charan Das Chadda cited earlier. A copy of this judgment has also been filed.

6. In their return and parawise replies dated 10.4.87 the respondents refute the contentions of the applicant that the Allahabad Bench's decision has not been implemented. They have said that not only the petitioner has been Promoted to the Joint G.M's rank but he has been given notional seniority with effect from 29.9.84 and he has been made senior to the juniors who were promoted earlier on 29.9.84 The respondents claim that differential monetary benefits and effective promotion cannot be given from 29.9.84, not only on the basis of principle of ‘no work no pay’ but on the basis of para XV of the Appendix 29 of Civil Service Regulations and Department of Personnel and Administrative Reforms Memorandum No. 22011/6/75 Estt. (D) dated 30.12.76 read with memorandum of the same no. dated 11.1.77 An extract of these instructions has been produced in Annexure-I the Return. Under the aforesaid Appendix 29 of C.S.R's the pay is fixed under F.R 27 by allowing increments from the notional date of promotion (in this case 29.9.84) but arrears are not paid. It is also claimed by the respondents that the review D.P.C had considered the case of the petitioner's promotion which was allowed by OF Board's order No. 381.A/G(I) dated 29.9.86 and the applicant took charge of the post on 22.9.86 (Annexure-III).

7. In his rejoinder dated 20.4.87 to the respondent's return the applicant has stressed the following observations of the Allahabad Bench.

“The Review DPC to be held on the presumption that no CRs were written in these two years and if the petitioner meets with the requirements of the selection procedure, he should be given his proper place in the panel declared on 21.9.84” and has stated he has not been given his proper place in the panel declared on 21.9.84 He claims that his name has to be inserted in that penal and that para XV of the Appendix 9 of the CSR Volume II is not applicable in his case and this is not a case of promotion on review by the DPC consequent to expunction or toning down of adverse remarks but total exclusion of the ACR's 81 & 83 in which adverse remarks had appeared as these were treated ‘null & void’ by the Tribunal. He has also stated that he has exhausted the departmental remedy by filing the representation.

8. In his supplementary arguments dated 30.6.87 the petitioner has acknowledged that his promotion has been notionally ordered from 29.9.84 but arrears of pay should have been allowed. On the face of the Tribunal's order which has not been implemented fully to the letter and without going up in a appeal to the Supreme Court the respondents cannot take shelter behind executive instructions or para XV of Appendix 29 of CSR's. In support of the claim for effective retrospective promotion the following ruling have also been cited:

1. State of Mysore v. CR Sheshadri, (1974) 4 SCC 308 : AIR 1974 SC 460.

2. State of Mysore v. Syed Mahmood, AIR 1968 SC 113.

9. It has also been contended that interest on arrears of emoluments should also be allowed at the rate of 11% per annum and he has not been given a proper posting as Joint G.M after his promotion.

10. In their reply dated 23.6.87, to the applicants rejoinder the respondents have stated that they have granted notional promotion to the applicant w.e.f 29.9.84 with benefit of seniority and increments for purposes of pay fixation in the higher post. However they have reiterated that arrears of pay are not admissible.

11. After considering the contentions of the parties we find that although the applicant has submitted lengthy submissions but in substance the only material point that is to be decided is whether arrears of pay in the higher post are admissible to him w.e.f 29.9.84 The applicant is not quite correct in saying that the Allahabad Tribunal's order has been flouted and not implemented. In fact a review DPC has been held and he has been granted notional promotion with benefit of seniority and counting of increments towards pay fixation. However, the respondents are not quite correct in taking the stand in this case that arrears of pay would not be admissible under para XV of Appendix 29 of CSR because the petitioner is right in claiming that in this case there is no toning down or expunction of adverse remarks as such because the Allahabad Bench of the Tribunal has held that the 1981 and 1983 ACR's of the applicant would be treated to “null & void” as not having been recorded in accordance with rules. The review DPC was not to conduct a review of the petitioner's case as of 1986 but place themselves in the position of 1984 DPC and if the petitioner was found fit insert his name in the 1984 Select List itself. The administrative error or the error in recording the offending ACR's could not in such a case have been passed on to the petitioner to no fault of his. This was the correct interpretation and implication of our predecessor Bench's order, If the respondents wished to draw a contrary interpretation they should have challenged it in appeal to the Supreme Court This Tribunal is also not in a position to review the decision of the Allahabad Bench. We have to interpret the judgment as it is and on this point the claim of the applicant for being awarded arrears of pay is correct in the circumstances of the case.

12. The decision of the Punjab High Court in the case of Charan Das Chadda v. State of Punjab (supra) correctly supports the view that arrears of pay in such a case would be admissible. Therefore under the circumstances, for reasons discussed, we direct that the respondents shall not merely notionally promote the petitioner from 29.9.84 but effectively promote him from the date besides giving him seniority also by granting him the difference in pay as arrears in terms of emoluments admissible to him as if he had been promoted to the rank of Joint G.M from that date. We do not consider that there is any merit in the petitioner's claim for the payment of any interest at the rate of 11% on such arrears which request is rejected. We also do not consider it necessary to give any direction to the respondents regarding the posting of the applicant which is an internal administrative matter.

13. The respondents shall implement the above directions within 2 months of the date of this order.

14. Appeal allowed.