CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH: NEW DELHI OA NO.2161/2010 NEW DELHI THIS THE 30th DAY OF MAY, 2011 HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) HONBLE DR. DHARAM PAUL SHARMA, MEMBER (J) Prakash Chand Stores Officer (Retd.) DRDO, R/o WZ-312, Basai Dara Pur New Delhi-15 Applicant (By Advocate: Shri Padma Kumar S.) VERSUS 1. Union of India, through The Secretary Ministry of Defence Government of India South Block, New Delhi-110 011 2. The Director General Research & Development DRDO, C Block, DRDO Bhawan Rajaji Marg, New Delhi-110 105 3. The Secretary Department of Personnel & Training North Block, New Delhi-10 011 4. Director of Personnel, DRDO C Block DRDO Bhawan, Rajaji Marg, New Delhi-110 105 Respondents
(By Advocate: Shri S.M. Arif) : O R D E R :
Dr. Ramesh Chandra Panda, Member (A) :
Shri Prakash Chand, the Applicant herein, was working as Store Officer on the date of his superannuation i.e. on 31.01.2008 after putting in 39 years of service in the Defence Research and Development Organisation (DRDO) of the Ministry of Defence. The next higher post to which he should have been promoted is Senior Store Officer-II. It is the Applicants case that having been appointed as Stores Officer on 1.04.2002 he was eligible to be considered for the promotion to the said post as he completed 3 years of service as Stores Officer on 31.03.2005. It is the Applicants case that he was the senior most Stores Officer and should have been considered for promotion to the Senior Stores Officer-II. For the vacancy year 2008, the proposal for conducting DPC was sent to the UPSC by the Respondent-DRDO on 1.05.2007 (Page-16). It is stated that after the proposal was sent on 1.05.2007 for filling up 8 numbers of vacancies for the Senior Stores Officer-II. However, it has been found that 2 vacancies for the year 2007 have arisen. The Applicant being the senior most was entitled to be promoted to the vacancy which arose in the year 2007. DRDO sent a proposal for supplementary DPC for the year 2007 to UPSC on 5.10.2007(Page-18). It is stated that on 07.01.2008, the Applicant was served a charge memo (Annexure A6) with the allegation that he failed to perform his supervisory duties, as a result of which, loss of 266.73 kgs of Copper rods/sheets from the workshop Stores of the Laboratory. In the meantime, the DPC was held on 31.01.2008 and the Applicant also retired on superannuation on 31.1.2008. DPC on consideration of the Applicant facing the charges, put its recommendation in the sealed cover. The competent Disciplinary Authority after considering the statement of defence submitted by the Applicant exonerated the Applicant of all those allegations vide the order dated 08.7.2008 (Page-13) and he was released full pension and other retiral benefits. The Applicant submitted a representation dated 20.5.2009 (Pages 40-41) to the Respondents that his sealed cover for promotion for the year 2007 should be opened and action taken accordingly. Earlier, he sent a similar letter on 27.2.2009 and 22.12.2008.
3. As the Applicant was not favoured with any positive decision and his representation was rejected by the Respondents vide their letters dated 27.03.2009 (Page-11) and 5.06.2009 (Page 10), the Applicant is before this Tribunal with the following prayers under Section 19 of the Administrative Tribunals Act, 1985:-
(a) Quash and set aside the impugned orders at Annexure A-1 colly.
A direction to the respondents to grant the Applicant the notional promotion to the post of Senior Stores Officer II from September 2007 for the purpose of pensionary benefits.
Any other direction which this Honble Tribunal may be pleased to grant under the facts and circumstances of the case, at its discretion.
4. Shri Padma Kumar S., learned Counsel for the Applicant would submit that it is a clear case that much before the Applicant retired from service the vacancies arose in the year 2007 and 2008. There were two vacancies for the year 2007 when the Applicant was fully eligible to be considered for those two vacancies. He was the senior most and his case was considered in the DPC which was held on 31.01.2008 for both the supplementary penal for the year 2007 and regular panel for the year 2008. But the DPCs recommendation was put in the sealed cover. He further contends that though the Applicant retired on 31.01.2008 and though no juniors were promoted while the Applicant was in service yet the Applicants case should have been considered favourably for the year 2007 by opening the sealed cover. If the Applicant is found fit he should be extended the benefits of promotion to the post of Senior Stores Officer Grade-II at least notionally so that the Applicant would get pensionary benefits. Referring to the contentions of the Respondents that as the Applicant retired the sealed cover should not necessarily be opened, Shri Padma Kumar S would submit that as per the Government OM dated 12.10.1998 for inclusion of the names of the retired employees also for consideration by the DPC, the said OM stipulates that though the actual promotion need not be granted but the notional promotion could still be granted to the Applicant. In this context, he made a reference to the judgment of this Tribunal in OA No.1519/2008 decided on 24.02.2009 in the matters of Sh. R. S. Gupta vs. Government of NCTD & Others.
5. On the other hand, the Respondents in their counter reply filed on 1.10.2010 have very strongly posed the contentions and the grounds taken by the Applicants counsel. Shri S. M. Arif, learned counsel for the Respondents would submit that the DPC did consider the Applicant for the post of Senior Stores Officer-II on 31.01.2008. In the said DPC, two vacancies for the year 2007 and 8 vacancies for the year 2008 were considered. As the Applicant was facing a disciplinary case, charges were framed against him on 7.01.2008, the DPCs recommendation was put in the sealed cover as per the extant Rules and Regulations. The Applicant was exonerated subsequently on 8.7.2008 and as such, on the date of DPC (31.01.2008) the Applicant having been charge sheeted, would not have been promoted. He referred to the DOPT OM dated 12.10.1998 inter alia envisages that there is no bar for consideration of employees while preparing year wise penal who were within the zone of consideration but the said OM also envisages that the employees have no indefeasible right for actual promotion. In the present case, no junior of the Applicant has been promoted before the Applicant retired. More so, the promotion is prospective and cannot be granted retrospectively and that too w.e.f. the date of vacancy. He, therefore, submits that the OA is a fit case to be dismissed.
6. Having heard the contentions of the rival parties, with the assistance of their counsel, we, perused the pleadings. The short question that comes up for our consideration is: whether the recommendation of the DPC put in the sealed cover should be opened and if found fit whether the Applicant should be notionally promoted to entitle him higher pensionary benefits?
7. The undisputed facts of the case disclosed that (i) there were 2 vacancies for the year 2007 supplementary list and 8 vacancies for the year 2008 in the cadre of Senior Stores Officer-II, (ii) as per the Recruitment Rules for the said post, Stores Officers with five years of regular service were eligible for promotion, (iii) the Recruitment Rules prescribed 100% of the said posts were to be filled up by promotion from the feeder category of Stores Officers, (iv) the DPC met on 31.01.2008 and (v) the Applicant also retired on 31.01.2008. The DPC was initially to consider the candidates eligibility for promotion for the vacancies in the year 2008. It is not in dispute that the said DPC also drew a supplementary list for filling up two vacancies of Senior Stores Officers-II as those vacancies were estimated to arise in September, 2007. The Respondent DRDO submitted a proposal to consider the eligible Stores Officers for consideration by the Union Public Service Commission (UPSC) for the said post. It is also not in dispute that the Applicant at that point of time was the senior most eligible Stores Officer.
8. It is trite law that the Applicant has right to be considered for the promotion to a higher post but he has no indefeasible right to be promoted. It is not disputed by the Applicant that he was not considered. On the other hand, the Applicant was considered by the DPC and as the Applicant was facing a charge memo his case was put in the sealed cover. We find that the procedure adopted by the Respondents to put Applicants case in sealed cover is as per the extant Rules and as per the law laid down by the Honble Supreme Court in the case of Union of India etc. etc. versus K. V. Jankiraman etc. etc. 1991 (4) SCC 109.
9. We may at this stage refer to the settled position in law in respect of the date from which an employee can be promoted and whether the promotion can be prospective or retrospective?
10. Every Officer has a right to be considered under Article 16 of the Constitution of India to a higher post subject to his eligibility, provided he is within the zone of consideration. The question is as to the manner in which his case is to be considered. In service jurisprudence this matter is important as it deals with fairness in the matters of promotion as held by Honble Supreme Court in the case of Badrinath versus Government of Tamil Nadu [2000-8-SCC-395].
11. Further, Honble Apex court has held that while consideration for promotion on fair and equal basis without discrimination can be claimed as legal and fundamental right under Article 14 and 16 of the Constitution but chances of promotion as such cannot be claimed as of right as held in the case of Dwarka Prasad and Others versus Union of India and Others reported in AIR 2003-SC-2971.
12. It has been held in a series of decisions of the Honble Supreme Court that a promotion takes effect prospectively i.e. from the date of granting promotion and not retrospectively from the date of occurrence of vacancy or creation of the post as held in the judgments in the matters of Union of India versus K. K. Vadera [(1989) Supp (2)-SCC-625], State of Uttaranchal and another versus Dinesh Kumar Sharma (2007-1-SCC-683), K. V. Subba Rao versus Government of A.P. (1988-2-SCC-201) and Sanjay Kumar Sinha-II versus State of Bihar (2004-10-SCC-734).
13. In service jurisprudence the service conditions give right to be considered for promotion to a higher position but do not give absolute right to be considered from stage to stage and it is not open to the Tribunal to grant even proforma/notional promotion to employees at various stages as held by Honble Apex Court in the matters of Government of Andhra Pradesh and Others Versus A. P. Jaiswal and Others [AIR 2001 SC 499].
14. In the above backdrop of the settled position in law and the facts of the case discussed within, we may take forward our analysis to determine the issues. It is a fact that the Applicant was facing a departmental enquiry and charge was pending against him on the date on which the DPC met (31.01.2008). He was subsequently exonerated on 8.7.2008 after the competent authority considered his explanation. Such exoneration came more than 5 months after the Applicant has retired on 31.01.2008. These facts very clearly indicate that even if the sealed cover would have been opened the Applicant could not have been promoted even if he was found fit in the panel prepared by the DPC for the said purpose as the promotion would have been after 31.1.2008 when he retired. Further for a moment, if we assume that the DPC found the Applicant fit for promotion and no charge was pending with him, his name would not have been put in the sealed cover, even then he could not have been promoted as he was retiring on 31.1.2008 and the process of finalizing the minutes of the DPC from the UPSC and the competent authority to consider and approve the same would have taken at least few days. Even by the above presumptive alternative the DPC recommendation would not have come to the rescue of the Applicant to get promoted as he retired on the very day on which the DPC met (31.01.2008). Even to direct the Respondents to open the sealed cover will be pure and simple academic exercise.
15. It is trite law that if the juniors gets promoted after the retirement of the officers in question, such officers could not be promoted retrospectively from the date of vacancy. In the present case, though the vacancy for the year 2007 existed which came to the knowledge of the Respondents in September, 2007, the normal process to draw up a supplementary list for the year 2007 has taken reasonable time and it is not the case of the Applicant that DPC was convened intentionally by UPSC on 31.01.2008 to deprive him the promotion. On this score also, the Applicant does not convince us to interfere.
16. Considering the totality of facts and circumstances of the case, guided by the well settled law in the subject and having given a careful consideration on the grounds and contentions raised by the parties, we are of the considered opinion that the Respondents have very correctly issued their order dated 15.06.2009 by which the Applicant was informed that his representation having been examined again by the competent authority did not agree to his request. Thus, the said communication dated 5.06.2009 is maintainable in the eyes of law.
17. Thus, finding no merits in the Original Application, the same is dismissed. No costs.
(Dr. Dharam Paul Sharma) (Dr. Ramesh Chandra Panda) Member (J) Member (A) /pj/