A.K. Gupta vs Union Of India And Anr.

L. Narasimha Reddy, J

The applicant retired from service of Directorate General of Foreign Trade, as Joint Director of Foreign Trade (JDFT) on 31.08.2013. There is a scheme of conferring Non-Functional Selection Grade (NFSG) to certain number of officers in the category of JDFT. The Screening Committee, constituted for this purpose met on 13.03.2014. The name of the applicant was also included in the list of the candidates to be considered. His junior Mr. A.K. Jha was extended the benefit of NFSG w.e.f. 21.08.2013, but the applicant was not treated as eligible on account of the fact that he has retired before 13.03.2014.

The applicant feels aggrieved by denial of NFSG. He contends that once the benefit was conferred upon his junior, he is also entitled for the same.

The respondent filed their counter affidavit. It is stated that though the applicant was considered for the benefit of NFSG, it could not be conferred upon him because he retired, by the time the committee met. It is also stated that conferment of the benefit of NFSG, which is equivalent to promotion, in favour of retired persons is unknown to law. Reliance is placed upon the judgment of the Hon'ble Supreme Court in the matter of Union of India and other Vs. K. K. Vadera and Others (AIR 1990 SC 442).

We heard Mr. A. K. Barua, learned counsel for the applicant and Mr. Vijay Kumar Sharma, learned counsel for the respondents.

The controversy in this case is in a very narrow compass. The applicant retired as JDFT on 31.08.2013. The Screening Committee which met on 13.03.2014 to scrutinize the eligibility to be conferred the NFSG, did not consider the name of the applicant, though it was at a fairly high place in the list, on the ground that he retired from the service. Even notional benefit was not extended to him.

Had the matter stopped at the applicant being denied the benefit of NFSG and other candidates, junior to the applicant, being extended promotion with prospective effect, things would have been different altogether. The record discloses that Mr. A. K. Jha, who is junior to the applicant as JDFT, was conferred the NFSG w.e.f. 21.08.2013, by which date, the applicant was very much in service.

We are conscious of the principles laid down by Hon'ble Supreme Court in Union of India and other Vs. K. K. Vadera and Others (Supra) which is to the effect that no employee has the right to be promoted from the date on which the vacancy arises and a retired employee cannot be promoted. However, under the scheme which is in force benefit is conferred with retrospective effect also. Incidentally, the date of extension of benefit of NFSG to Mr. A. K. Jha fell prior to the date of retirement of the applicant.

This was the very question in P. G. George Vs. Union of India OA No.1409 of 2009 and connected cases, on 22.04.2010 by this Tribunal. After referring to the judgments of the various High Courts and Supreme Court, this Tribunal took the view that if an employee who is junior to a retired employee is promoted w.e.f. the date which is anterior to the date of retirement, such retired employee is also entitled to be extended the same benefit. The relevant portion of the judgment reads as under:-

"It is thus very clear that:

There is no rule that promotion should be given from the date of creation of the promotional post;

If promotions are effected prospectively from the date of issued of the order of promotion, retired employees would not be eligible for promotion retrospectively; and if promotion is granted retrospectively and a person junior to the retired employee has been promoted from the date when the retired person was in service and if the retired person has been found fit by the DPC, such retired person would be entitled to promotion retrospectively on notional basis from the date his immediate junior has been promoted. This is clear from the judgement in Baijnath Sharma, as it has been paraphrased in Rajendra Roy (supra) in paragraph 16, quoted above. Moreover, it has further been clarified by the Honourable High Court in Rajendra Roy (supra) itself in paragraph 25 of the judgment, which has been quoted above."

In the instant O.A., the same factual scenario is present. We, therefore, allow the O.A. and direct that the applicant shall be entitled to be extended the benefit of NFSG w.e.f. 21.08.2013 with all consequential benefits. There shall be no order as to costs.