Mahesh Chandra Sriva... v. Union of India throu..., Central Administrative Tribunal, Judgment, Law, casemine.com

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Case Number

1 - (OA) Original Appl. 84 Of 2013

Judges

Mr. Navneet Kumar
Ms. Jayati Chandra

Acts

SECTION 19 ADMINISTRATIVE TRIBUNALS ACT 1985

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Smart Summary

Factual and Procedural Background

The applicant, originally appointed as Senior Technical Assistant, was promoted to Assistant Geologist in 1986 and subsequently to Geologist Junior (now Geologist) following litigation that led to promotion in 1992. He received a later promotion to Geologist Senior (now Senior Geologist) in 2005; a separate O.A. seeking seniority from the year of eligibility remains pending. The eligibility date for promotion to Superintending Geologist (SG) required five years' regular service on Geologist Senior, making the applicant eligible w.e.f. 1.1.2011.

A Supplementary Departmental Promotion Committee (DPC) for vacancies of 2010-11 and the regular DPC for 2012-13 were held on 21.8.2012. The applicant's name was recommended and appeared at serial number 33 for the 2012-13 vacancies. Minutes were sent to the Ministry of Mines on 28.8.2012. The applicant superannuated on 31.8.2012. The Ministry issued approval on 17.10.2012, but the actual promotion order issued from the office of the Director General, GSI, Kolkata on 18.10.2012 did not include the applicant's name.

The applicant filed representations and, after receiving an order dated 4.2.2013 rejecting his claim on the ground that promotion is prospective and the officer must be in service to assume charge, he filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking: (i) setting aside the impugned order of 4.2.2013; (ii) direction to grant notional promotion w.e.f. the date of DPC recommendations (21.8.2012) with service and pensionary benefits; (iii) other reliefs; and (iv) costs.

Legal Issues Presented

Whether an applicant whose name was recommended by the DPC prior to superannuation but who retired before the formal promotion order could be granted a notional promotion with service and consequential pensionary benefits.
Whether delay (or alleged deliberate delay) by the respondents in issuing the promotion order before the applicant's superannuation can entitle the applicant to relief.
How DoP&T guidelines (including the O.M. dated 10.4.1989 and related paras) and existing precedents govern the retrospective or prospective effect of promotions and the entitlement to notional promotion.

Arguments of the Parties

Applicant's Arguments

The applicant argued that his name was recommended for promotion by the DPC held on 21.8.2012 prior to his superannuation on 31.8.2012 and therefore he is entitled to notional promotion with all service and pensionary consequences from the date of recommendation.
He asserted that respondents deliberately delayed issuance of the promotion order and failed to convene DPCs at regular intervals in accordance with DoP&T guidelines.
In his rejoinder the applicant referred to DoP&T O.Ms. (dated 8.9.1998, 14.12.2000 and 15.12.2004) and contended that the restructuring approval (dated 25.10.2011) negated any need for delay until 21.8.2012.

Respondents' Arguments

Respondents stated the applicant became eligible for consideration on 1.1.2011 but was not recommended by the DPC held on 11.2.2011 for the year 2011-12.
They explained that a High Power Committee and subsequent cadre restructuring increased vacancies (from 314 to 364 for 2011-12 and to 429 for 2012-13), which led to supplementary and regular DPCs being convened on 21.8.2012; additional vacancies justified the timing.
They asserted that minutes were approved by competent authority and the Ministry of Mines issued approval on 17.10.2012; since the applicant had already retired on 31.8.2012, his name was excluded from the promotion order dated 18.10.2012.
They relied on DoP&T guidelines (O.M. No. 22011/5/86-Estt (D) dated 10.4.1989) that promotions operate prospectively and para 17.10 indicating promotion takes effect from date of validity of panel or actual promotion, whichever is later.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Hridey Nath Shukla (O.A. No. 562 of 2003, Lucknow Bench); Bhasker Kanti Das Vs. Union of India & others (O.A. No. 359 of 2004, Calcutta Bench); E.A. Khan and K.K. Sinha Vs. Union of India & others (WP No. 519 (S/S) of 2005)	Tribunal had allowed notional promotions in cases where officers were recommended by DPC prior to retirement; those decisions were affirmed by the Hon'ble Supreme Court (as stated in the opinion).	The opinion notes these are "identical cases" in which the Tribunal granted notional promotion and that they were affirmed; the tribunal considered them but found the factual matrix of the present case to be different and therefore did not apply those precedents to grant relief.
B.K. Das (Calcutta Bench, O.A. No. 359 of 2004) — referred to as "B.K. Das (supra)"	Used by the applicant to illustrate cases where there was a long delay between DPC and final approval resulting in retirement before approval (DPC on 2.2.2003, approval on 1.1.2004 after eleven months; retirement on 31.12.2003).	The court distinguished B.K. Das on facts: in that case there was an 11-month delay between DPC and approval; in the present case approval was received within less than two months after the DPC. The court treated B.K. Das as materially different and therefore not decisive for the applicant's claim here.
Nirmal Chand Sinha Vs. Union of India & others, 2008 (14) SCC 29	The principle that a promotion takes effect from the date it is granted and not from the date of occurrence of a vacancy or creation of a post.	The court relied on this principle to note that the actual promotion order was issued on 18.10.2012 and that promotions operate from the date of grant. The court applied the principle to observe that while the selection committee should include the name of an officer who was in service on the date the committee was convened, promotion itself is not a vested right but a matter of administrative action from the date granted.

Court's Reasoning and Analysis

The Tribunal examined eligibility, timing of DPCs, administrative approvals, and precedent. Key steps in its reasoning were:

Eligibility and consideration: The applicant was eligible for consideration for SG w.e.f. 1.1.2011 and had been considered for regular vacancies for 2011-12 (but not recommended in the DPC of 11.2.2011).
Restructuring and additional vacancies: The Tribunal accepted the respondents' account that adoption of the High Power Committee report and subsequent cadre restructuring increased vacancies (additional 43 posts for 2011-12 and increased vacancies for 2012-13), which explained the holding of a Supplementary DPC and the DPC for 2012-13 on 21.8.2012.
Timing of approvals: The DPC was held on 21.8.2012, minutes were sent on 28.8.2012, and governmental approval was received on 17.10.2012—less than two months after minutes were sent. The court regarded this as a reasonable administrative timeframe.
Comparison with precedents: While the applicant relied on earlier Tribunal decisions (and one instance where approvals were delayed for eleven months resulting in retirement before approval), the Tribunal distinguished those cases by reference to the significantly longer administrative delays in them. The present case involved a much shorter interval between DPC and approval.
Doctrine on effect of promotion: The Tribunal cited Nirmal Chand Sinha (2008 (14) SCC 29) to reiterate that promotion takes effect from the date it is granted rather than from the date of occurrence of a vacancy. The Tribunal observed that although the selection committee should include an officer who was in service on the date the committee was convened, promotion itself is not a vested right; only the right to consideration is vested.
Conclusion from facts and law: Given the restructuring explanation for timing, the short period between DPC and approval, and the legal principles concerning the effective date of promotion, the Tribunal concluded that the applicant's claim did not warrant grant of notional promotion or other relief.

Holding and Implications

HOLDING: The Original Application is dismissed. The Tribunal ordered no costs.

Implications:

Direct effect on the parties: The applicant was not granted notional promotion or consequential service/pensionary benefits. The respondents' action in excluding his name from the promotion order dated 18.10.2012 stands upheld by the Tribunal.
Precedential effect: The opinion distinguishes earlier Tribunal decisions in which notional promotions were allowed where there were substantial administrative delays; it relies on the comparator Supreme Court principle that promotions take effect from the date of grant. The Tribunal did not lay down a new legal principle and the decision is fact-specific to the timing and administrative details described.

Order signed by Members: Ms. Jayati Chandra (Member A) and Navneet Kumar (Member J).

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Mahesh Chandra Srivastava v. Union of India through its Secretary Ministry of Mines Shastri Bhawan New Delhi.

Per Ms. Jayati Chandra, Member (A) This O.A. has been filed by the applicant under Section 19 of Administrative Tribunals Act, 1985 seeking the following relief(s):- (i) to set aside the impugned order dated 4.2.2013 contained in Annexure no. 1 to this Original Application declining the notional promotion to the applicant on the post of Supdt. Geologist as well as the condition of giving the effect to the promotion order dated 17.10.2012 w.e.f. assumption of charge.

(ii) to direct the Opposite parties to grant notional promotion on the post of Supdt. Geologist w.e.f. the date of recommendations made by the Departmental Promotion Committee i.e. 21.8.2012 with all service consequential benefits and revises the pensionary benefits accordingly.

(iii) to grant any other relief which this Honble Tribunal may deems fit and proper in the circumstances of the case.

(iv) To direct to Opposite parties to pay costs to the petitioner.

2. The facts of the case are that the applicant was initially appointed as Senior Technical Assistant and was promoted as Assistant Geologist in the year 1986. His next promotion was of Geologist Junior (now designated as Geologist) and he became eligible for promotion in the year 1986. As no Departmental Promotion Committee (DPC) meeting was being held, the applicant alongwith others filed O.A. no. 158 of 1990, which was allowed vide judgment and order dated 4.11.1991. Thereafter, the applicant was promoted to the post of Geologist Junior vide order dated 22.10.1992 instead of 1986. He was given next promotion on the post of Geologist Senior (now designated as Senior Geologist) in the year 2005 without according him the seniority of the post of Geologist (Junior) w.e.f. the date of year of eligibility. Being aggrieved, the applicant filed another O.A. with some identically situated persons seeking seniority on the post of Geologist Junior w.e.f. the date of recommendations of DPC, which is still pending. The next promotional post was the post of Superintending Geologist, the criteria for which is five years regular service on the post of Geologist Senior and as such he became eligible for promotion as Superintending Geologist in the year 2010. The respondents held Supplementary DPC on 21.8.2012 for the year 2010-11 and regular DPC of the year 2012-13 against the vacancies of 56 and 95 respectively. The name of the applicant was recommended for promotion to the post of Superintending Geologist for the vacancies of the year 2012-13 His name figured at sl. No. 33. The minutes of DPC were sent to Ministry of Mines for approval on 28.8.2012 prior to retirement of the applicant. The applicant superannuated from service on 31.8.2012 without being given promotion to the post of Superintending Geologist in spite of being so recommended. The promotion approval order dated 17.10.2012 was issued in which name of the applicant was placed at sl. No. 33 for the year 2012-13, but the order dated 18.10.2012 issued from the office of Director General, GSI, Kolkata did not include his name while issuing the actual promotion order. The applicant submitted a representation on 13.12.2012 followed by reminder dated 11.1.2013. When the applicant did not receive any response, he sent a representation to the Secretary, Government of India, Ministry of Mines on 22.1.2013. However, he was served with an order dated 4.2.2013 rejecting his claim for grant of promotion on the post of Superintending Geologist on the ground that the applicant had retired from service on 31.8.2012, therefore, the promotion could not be offered to him as a promotion is prospective and the recommended officer has to take charge in the new post after being promoted. The applicant has basically challenged the rejection order of the respondents on the ground of deliberate delay on the part of the respondents in not issuing the promotion order prior to his retirement.

3. Once the name of the applicant was recommended for promotion prior to his superannuation, he becomes entitled to be promoted notionally with all service benefits. In the identical cases, this Tribunal allowed the notional promotion to certain persons namely Hridey Nath Shukla who had filed O.A. No. 562 of 2003 at Lucknow Bench, Bhasker Kanti Das Vs. Union of India & others (O.A. no. 359 of 2004 Calcutta Bench) E.A. Khan and K.K. Sinha Vs. Union of India & others (WP No. 519 (S/S) of 2005), which has been affirmed by Honble Supreme Court.

4. The respondents have contested the claim of the applicant by filing Counter Reply through which they have stated that the applicant completed the required residency period of five years for promotion to the post of Superintending Geologist on 1.1.2011 and thus became eligible to be considered in the year 2011-12. The DPC regarding promotion to the post of Superintending Geologist for 43 vacancies for the year 2011-12 was conducted on 11.2.2011 in which the applicant was not recommended. They have also stated that a High Power Committee was constituted to look into the question of restructuring of GSI on 1.10.2007. The High Power Committee submitted its report on 31.3.2009 and thereafter a cadre review for the four Scientific & Technical streams were undertaken in the Ministry of Mines. As per the approval given by the Ministry on such proposal, cabinet note for restructuring the GSI was sent to the Cabinet on 4.10.2011. This Cabinet proposal was approved on 15.10.2011. As per approval of Cabinet, the cadre of Superintending Geologist was increased from 314 to 364 for the year 2011-12 and to 429 for the year 2012-13. Thus, supplementary proposal for promotion to the 56 additional vacancies for the year 2011-12 and regular DPC for 95 vacancies for the year 2012-13 was sent to UPSC. In the DPC meeting dated 21.8.2012 the applicant was recommended for promotion to the post of Superintending (Geologist) for the year 2012-13. The minutes of meeting were approved by the competent authority and the approval so given to the proposal was sent by O.M. dated 17.10.2012 to Director General, GSI by Ministry of Mines, Government of India. This list included all the names of persons who had been considered by the DPC and were, therefore, approved as such. Since the applicant has already retired from service on 31.8.2012, therefore his name has been excluded in the promotion order dated 18.10.2012.

4. It is not possible to give any kind of promotion which is retrospective in nature. The DoP&T guidelines issued vide O.M. no. 22011/5/86-Estt (D) dated 10.4.1989 provides that promotions will have only prospective effect even in cases where the vacancies relate to earlier year(s). Para 17.10 provides that promotion of officers included in the panel would be regular from the date of validity of the panel or the date of their actual promotion, which ever is later.

5. The applicant has also filed Rejoinder in which he reiterated the points raised in the O.A. and denied the averments made in the Counter Reply. Apart from that, he stated that the department should have convened the DPC on regular intervals as per DoP&T O.M. dated 10.4.1989. The respondents have violated the guidelines of O.M. dated 8.9.1998, 14.12.2000 and 15.12.2004 enclosed with the Rejoinder. The restructuring proposal was approved on 25.10.2011; therefore, there was no need for DPC to delay its meeting till 21.8.2012.

6. We have heard the learned counsel for the parties and have also perused the material available on record.

7. The applicant claims in this case that he should be given the benefit of promotion in pursuance of recommendation of DPC meeting held on 21.8.2012 on the post of Superintending Geologist. It was not denied by the respondents that he was eligible for consideration for promotion to the post of Superintending Geologist (SG) w.e.f. 1.1.2011. He was considered for regular vacancy S.G. for the year 2011-12, but he was not recommended by the DPC. It is only after adoption of the report of High Power Committee and the process of obtaining necessary sanction that additional 43 posts were available for the year 2011-12 and the vacancies available for the 2012-13 were also increased. As a result, the Supplementary DPC for the year 2011-12 was held on 21.8.2012 and the DPC for 2012-13 was also held on 21.8.2012. The applicant was recommended for promotion to the post of S.G. for the year 2012-13. Thus, we see that there was no delay in holding the regular DPC for 2011-12. There has been some delay in holding the DPC for 2012-13, but the same is explained in terms of additional vacancies becoming available as a result of the adoption of restructuring proposal.

8. The DPC was held on 21.8.2012, the minutes sent for approval on 28.8.2012 and the governmental approval was received on 17.10.2012, after less than two months. The applicant has placed reliance upon the decision passed in the case of B.K. Das (Calcutta Bench, O.A. no. 359 of 2004). In the case of B.K. Das (supra), the DPC for the post of Deputy Director General was held on 2.2.2003, the minutes of DPC meeting was received in the Ministry on 19.2.2003, sent to DoP&T on 25.3.2003 and ACC approval was obtained on 1.1.2004 (after eleven months of DPC), Sri B.K. Das retired on 31.12.2003 i.e. 10 months after the DPC and just one day prior to receipt of the approval. The case of H.N. Shukla O.A. no. 562/2003 (Lucknow Bench) E.A. Khan 517 of 2002 (Guwahati Bench) K.K. Sinha (Bombay Bench 2185 of 2003) arose out of the same DPC with similarly delay s between date of DPC and final approval receipt.

9. The case of the applicant is quite distinct in that he had been considered against regular vacancy year 2011-12. The enhanced vacancy for 2012-13 improved everyone chances. The DPC was held on 22.8.2012 and the approval was received on 17.10.2012 which is within a reasonable time frame for such administrative functioning. Unfortunately, the applicant retired within 10 days of the DPC.

10. Coming to the question of occurrence of vacancy, It has been held that the promotion affects from the date from which it is granted and not from the date of occurrence of vacancy or creation of posts. In Nirmal Chand Sinha Vs. Union of India & others reported in 2008 (14) SCC 29 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. In this case, the actual promotion order was issued on 18.10.2012 and the same was issued in the order of seniority as was recommended by the DPC. The selection committee was bound to include the name of the applicant as on the date it was convened he was still in service. It is unfortunate that in the course of recommendations, sanction etc. the applicant retired from service. But it is also to be noted that a promotion is not the vested right of an employee and only his consideration for the same in his turn is the vested right.

11. In view of the above, the O.A. fails and is accordingly dismissed. No costs. (Ms. Jayati Chandra) (Navneet Kumar) Member (A) Member (J) Girish/-

Mahesh Chandra Sriva... v. Union of India throu...