Dr. Balu.S vs Union of India & Ors.

Justice K.Haripal, Judicial Member

Applicant is aggrieved by the non-feasance on the part of the respondents in not promoting him to the post of Senior Instructor (Fishing Technology) after reviving the post at the earliest.

The applicant had commenced service as Instructor (Craft and Gear) in Visakhapatnam unit of the Central Institute of Fisheries Nautical and Engineering Training (CIFNET), which post was later re-designated as Instructor (Fishing Technology). Later, he was transferred to Kochi in 2012.

The next promotion post of Instructor (Fishing Technology) is Senior Instructor (Fishing Technology) in Pay Band – 3 in the scale of Rs.15600-39100 with grade pay of Rs.5400/-. As per the Recruitment Rules, Annexure-A5, 66.67% of the posts have to be filled up by promotion failing which by deputation and 33.33% by deputation failing which by direct recruitment. The feeder categories are Fishery Officer in Pay Band-2 in the scale of Rs.9300-34800 with grade pay of Rs.4600/- with three years of regular service and Instructor (Fishing Technology) in Pay Band-2 in the scale of Rs.9300-34800 with grade pay of Rs.4200/- with eight years regular service. According to the applicant, at present there is no Fishery Officer in CIFNET so that the Instructors (Fishing Technology) having the requisite qualifying service have to be considered for promotion to the post of Senior Instructor(Fishing Technology). The applicant is the senior most in the cadre. Though representations were made for promoting him, that were not considered. At last, he moved this Tribunal with O.A.310/2017. The O.A. was disposed of through Annexure-A8 order on 07.04.2017 directing the 3^rd respondent to dispose of his representation within two months. Following Annexure-A8, Annexure-A9 communication was issued to the 4^th respondent stating that his representation is under consideration, that a vacancy is available for promotion of the applicant and requested to send the proposal. However, the grievance of the applicant is that, through Annexure-A10 he was informed that though he is eligible to be promoted, the post of Senior Instructor comes under a deemed abolished category, as it had remained vacant for more than two years, and therefore his representation could not be considered. It was further stated that proposal for revival of the post has already been sent to the Department of Expenditure and that his case for promotion will be processed and sent to the UPSC on receipt of clearance from the Department of Expenditure.

Aggrieved by the same, the applicant has approached this Tribunal seeking to quash Annexure-A10, for a declaration that keeping vacancies of Senior Instructor (Fishing Technology) under deemed abolished category is illegal, to direct the respondents to consider and promote the applicant to the post from the date he became eligible for promotion and to grant him consequential benefits and to direct the 2^nd respondent to revive the post of Senior Instructor(Fishing Technology) in CIFNET at the earliest.

According to the applicant, from Annexure-A9 it is clear that a vacancy of Senior Instructor (Fishing Technology) was created on 06.08.2015, still it was stated that the said vacancy came under deemed abolished category. The delay in filling up the post is due to administrative reasons for which the applicant cannot be penalised. According to him, Annexure-A12 clearly indicates that proposals were already forwarded to the Ministry by the 4^th respondent. Still, keeping the post under deemed abolished category is arbitrary, unjust and illegal.

On behalf of the respondents, the 4^th respondent filed reply in tune with Annexure-A10 communication. According to them, out of 6 sanctioned posts of Senior Instructor, 4 posts required to be filled up by promotion and 2 by deputation/direct recruitment. Out of all the 6 posts, 5 posts were remaining vacant, the matter regarding revival of the vacant post was taken up with the Ministry of Finance, Department of Expenditure and they had approved revival of three posts, which fell vacant on 01.12.2012, 02.03.2013 and 06.08.2015. After Annexure-A5 had come into force, two posts were filled up by promotion. Later, one of them retired on 30.11.2012. Therefore, two posts of the first cycle and one post of the second cycle, total three posts are to be filled up by promotion. Proposals for filling up the post fell vacant on 01.12.2012 and 02.13.2013 have already been forwarded. Regarding the post revived on 06.08.2015, steps were taken up for filling up on deputation basis.

According to the respondents, after the issue of Annexure-A10 communication, three posts have been revived and the 4^th respondent has already sent communication on 12.01.2018 to the administrative Ministry and the matter is being processed by the 3^rd respondent and taken up with the UPSC for further consideration. According to them, the applicant is being considered for promotion to the post. So, the O.A. is sought to be dismissed.

In the rejoinder filed on 07.08.2019 it is conceded that during the pendency of the O.A., though belatedly, he was promoted as Senior Instructor (Fishing Technology) on 23.05.2019 and posted in the CIFNET unit, Visakhapatnam. Promotion has been given prospectively, though in Annexure-A9 the 3^rd respondent had assured to consider him in the vacancy created on 06.08.2015. The delay is attributable to the respondents and he is entitled to get promotion from 06.08.2015.

According to the applicant, the deemed abolishment of the posts and the non-convening of the DPC on time are due to the latches on the part of the respondents, for which he cannot be penalised. He submits that the delay has adversely affected his career progression.

The learned Standing Counsel also produced copy of the order dated 23.05.2019 whereunder the applicant was promoted and posted in Visakhapatnam. The applicant also produced certain additional documents along with a Miscellaneous Application.

We heard Sri.T.A.Rajan, learned counsel for the applicant and Smt.Deepa Devi learned counsel representing the learned Standing Counsel for the respondents.

It has come out that the applicant has since been promoted as Senior Instructor (Fishing Technology) from 23.05.2019. In that case, the O.A. has become infructuous. But, according to the applicant, everything is attributable to the delay and latches happened on the part of the respondents. If his representations were considered seriously, the post would not have been kept under deemed abolished category. The resultant loss suffered by him is irreparable and that would affect his future prospects. Learned counsel also pressed for ante dating the effect of promotion atleast from the date of revival of the post. According to the learned counsel, the applicant has lost his valuable 1½ years service as Senior Instructor, which may reflect in his future career. Learned counsel also placed reliance on the decision of the Principal Bench of this Tribunal in O.A. 1709/2012 dated 12.11.2013 in Deep Chand Sharma and others v. Union of India and others, judgment of the Deli High Court in WP(C)No.7416/2015 dated 15.05.2018 in B.Kumaravel v. Union of India and others and argued that the applicant is entitled to antedate the effect of promotion. But both the decisions were rendered on its own facts.

On the other hand, according to the learned Standing Counsel, the applicant has already been promoted after reviving the post. She has placed reliance on Nirmal Chandra Sinha v. Union of India and others [((2008) 14 SCC 29] and submitted that promotion can take effect only from the date of granting promotion and not from the date of occurrence of the vacancy or creation of the post.

Applicant was aggrieved by non-granting of promotion as Senior Instructor (Fishing Technology), even though he possessed all the necessary qualifications and service as required in Anneure-A5 Recruitment Rules. According to him, he had given Annexure-A7 representation when he had 8 years and 9 months of service as Instructor (Fishing Technology). On the instructions of this Tribunal, steps were also taken for filling up the post. However, Annexure-A10 indicates that the vacancy could not be filled up since it was placed under deemed abolished category.

The applicant sought for quashing Annexure-A10 and to direct the respondents to fill up the post after reviving the post of Senior Instructor. In fact during the pendency of the O.A., he has been granted promotion as seen from the copy of the order dated 23.05.2019 produced by the respondents. In that way, the grievance of the applicant stands already redressed and the O.A. has become redundant.

But, according to the learned counsel for the applicant, if the respondents were vigilant enough, the post would not have fallen within deemed abolished category. According to him, they did not show enthusiasm in convening the DPC in time such lapses and delay have caused him considerable loss. So, the learned counsel pressed for ante dating the promotion from the date of revival of the post.

After hearing learned counsel on both sides, we are of the view that, for numerous reasons, such a relief cannot be granted.

Firstly, it is the well settled proposition of law that one does not have any vested right for promotion, instead, has only a right to be considered for promotion. Immediately after completing the residency period of eight years, the applicant started requesting for promotion as though he has an inherent right for promotion. It could not be stated that the respondents did not take up his representation seriously. In fact we do not find anything in Annexure-A10, which is adverse or against the interests of the applicant. It only stated that the proposal for revival of the post has been sent to the department concerned and that it would be appropriately pursued. There is nothing in Annexure-A10 annihilating the interests of the applicant, warranting its quashment.

Moreover, as held by the Hon'ble Supreme Court in Nirmal Chandra Sinha, quoted by the learned Standing Counsel, ordinarily, promotion can be given only prospectively and cannot be granted from the date of occurrence of vacancy. This decision has been reiterated by the Hon'ble Supreme Court in subsequent authorities also. In Union of India and others v. N.C.Murali and others [AIR 2017 SC 1496] it has been held that promotion does not crystallize on the date of occurrence of vacancy unless statutory Rules mandate it. As submitted by the learned Standing Counsel, one cannot claim proforma promotion and retrospective seniority.

Similarly, in Bihar State Electricity Board & Ors. v. Dharamdeo Das [AIR 2024 SC 4609] it was held that no employee can lay claim for being promoted to the next higher post merely on completing minimum qualifying service.

For yet another reason, the applicant cannot claim retrospective effect to the promotion since the nature of duties of a Senior Instructor must be different from the duties of an Instructor, the post held by the applicant hitherto.

Again, promotion was materialised only after it was cleared by the DPC. Therefore, merely for the reason that the post stood revived, applicant cannot claim it as a matter of course.

On these considerations, the prayer for granting promotion with retrospective effect is declined. Recording the factum of promotion granted to the applicant, this Original Application is closed. No costs.