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Judgment
O R D E R
Hon’ble Mr. R.N. Singh, Member (J):
Since the issues involved in all the captioned OAs are identical and the reliefs sought therein are also identical, and with the consent of learned counsels for the parties, we proceed to dispose of all the three OAs by this common Order. For the purpose of this common order, OA No. 2100 of 2020 is being treated as the lead case.Central Administrative Tribunal
By filing the OA No.2100/2020 under Section 19 of the Administrative Tribunals Act, 1985, the applicant is seeking the following reliefs:
“(i)call for the concerned records of the applicant's matter from the Respondent Department and to peruse;
(ii)allow the O.A.;
(iii)quash and set aside the first impugned order No. HRM1/A&E/Prom/47 dated 22-06-2020 and the second impugned Rejection order No.HRM-1/Prom/Reprsn/154-A dated 11-0808-2020 both issued by the Respondent No.l, Accountant General (A&E)-II, Maharashtra, Nagpur (Annex. A-1 & A-2), the second impugned clarificatory order No.Staff(Appt)/109-2020 dated 21-05-2020 issued by the Respondent No.2 Comptroller & Auditor General of India (Annex.A-3) and the rejection of stepping up of pay order No.HRM-2/Levah/Vetan Visangati/Prabh/561 dated 31-07-2020 issued by the Respondent No.1 (Annex.A-4), by declaring that the same are issued not in accordance with law/rules and violative of Articles 14, 16 and 311(2) of the Constitution of India as also against the Indian Audit and Accounts (Accountant) Recruitment Rules, 1986 ( Annex.A-21);
(iv)direct the Respondents to make payment of monetary benefits towards arrears of pay fixation of the post of Accountant with effect from 1-04-2016 to 01-04-2018 with interest @ 18%; maintain the benefits of seniority over and above the seniority of the applicant's juniors;
(v)grant Interim Relief as prayed for by the applicant in Para 9 below:
(vi)grant any other relief to the applicant which may be deemed fit by this Hon'ble Tribunal in the interest of justice; and
(vi)grant examplary cost.”
Facts of the case are thatthe applicant was appointed as Multi-Tasking Staff on 04.1111.2011. He was promoted as Clerk under seniority quota w.e.f. 01.04.2015 vide order dated 31.03.2015. He was declared successful on 13.0505.2015 in the Departmental Examination for Accountants held in the month of February 2015. As per Recruitment Rules for the post of Accountant, there are three channels of recruitment as Accountant viz. Seniority, Departmental Examination and Direct Recruitment. The applicant was not eligible for promotion as Accountant during the panel year 2015-16 wherein the cut-off date for eligibility was 0101.04.2015 whereas the result of the Departmental Examination for Accountants was declared on 13.05.2015.
On being promoted as Clerk, an official has to complete three years regular service in the cadre for his next promotion as Accountant in seniority quota. As the applicant was already promoted as Clerk under seniority quota w.e.f. 01.04.2015, he was not eligible for promotion as Accountant in the panel year 2016-17 under Graduate (Group D) Multi-Tasking Staff quota and, therefore, was not considered for promotion as Accountant. His juniors in Multi-Tasking Staff cadre, who had also passed DE for Accountants Examination and who were not promoted as Clerk in the panel year 2015-16 were considered for promotion as Accountant under Examination quota in the panel year 2016-17. The applicant had represented to promote him with effect from 01.04Central Administrative Tribunal04.2016, the day on which his juniors in Multi-Tasking Staff cadre were promoted as Accountant under Examination quota. Therefore, the matter was referred to CAG office for guidance. In the meantime, as per orders a Review DPC was convened to address the issue. As per orders of Review Departmental Promotion Committee, Office Order No.216 dated 30.08.2018, the applicant was reverted to the post of Multi-Tasking Staff for the period from 01.04.2015 to 31.03.2016 and was given deemed date promotion to the post of Accountant w.e.f. 01.04.2016, the day on which his juniors in Multi-Tasking Staff cadre were promoted as Accountant under Examination quota. His inter-se-seniority was also restored in the cadre of Accountant. The benefit of deemed date promotion was given notionally with no arrears of Pay and allowances. The applicant represented that he was put to financial loss and requested not to make any recovery for the period of reversion to Multi-Tasking Staff. He had also contended that he was entitled to get pay and allowances to the post of Clerk, as he had worked as Clerk and to the post of Accountant from deem date of promotion i.e. 01.04.2016. Therefore, the matter of recovery of pay due to reversion to the post Multi1-Tasking Staff was referred to CAG office for guidance. CAG office vide order dated 21.0505.2020 clarified that convening of Review Departmental Promotion Committee was not in order and the case does not qualify the conditions as stipulated in DoP&T’s OM No.22013/1/97-Central Administrative TribunalEstt (D) dated 13.04.1998. The reversion of the official from Clerk to Multi-Tasking Staff for further consideration to Accountant cadre was required to be done under own volition. Even if reversion was under own volition, in terms of FR 15-A, he would have to be placed as junior most in Multi-Tasking Staff cadre to be considered for promotion to Accountant cadre prospectively. CAG office further clarified that consequent to reversion from Clerk to Multi-Tasking Staff, the pay drawn in Clerk cadre need not be recovered since he had discharged duty in that capacity. In view of CAG office's clarification the Office Order No.HRM-I/A&E/Promotion/216 dated 30.08.2018 due to Review Departmental Promotion Committee stands null and void and, therefore, withdrawn vide Office Order No.HRM-I/A&E/Promotion/47 dated 22.06.2020 restoring prior to issue of order dated 30.08.2018 along with consequential effect. Hence this OA.
Pursuant to notice issued by this Tribunal, the respondents have filed their reply to which the applicant has also filed rejoinder.
Learned counsel for the applicant argued that the applicant had qualified in the Departmental Examination for promotion from MTS (Group-D) to the post of Accountant and had also completed more than three years of regular service in the MTS (Group-D) cadre, thereby fulfilling the eligibility conditions prescribed under the Indian Audit and Accounts Department (Accountant) Recruitment Rules, 1986, as amended in 1990. He contended that although the applicant was promoted as Clerk on 01.04.2015 on the basis of seniority, the result of the Departmental Examination conducted in February 2015 was declared subsequently on 12.05.2015, and there was no provision under the Recruitment Rules debarring the applicant from being considered for promotion to the post of Accountant under the Departmental Examination quota merely because he had meanwhile been promoted as Clerk.
Learned counsel further submitted that Accountant posts under the Departmental Examination quota became available in March 2016, and despite the applicant being eligible and senior, his eight juniors were promoted vide order dated 30.03.2016, whereas the applicant was ignored without being informed of the reason for his exclusion or being afforded any opportunity to explain his position. Such action, according to learned counsel, was arbitrary, contrary to the Recruitment Rules and violative of the principles of natural justice and Articles 14 and 16 of the Constitution.
It was also submitted that the subsequent rejection of the applicant's claim on the ground that he had already been promoted as Clerk and was, therefore, no longer eligible for promotion as Accountant from the MTS cadre was wholly untenable. The applicant had already completed three years and four months of regular service inCentral Administrative Tribunal the MTS cadre, and his eligibility for promotion under the Departmental Examination quota had accrued independently under the applicable Recruitment Rules.
Learned counsel argued that the Respondent No.2, vide its clarificatory order dated 11.07.2016, had specifically directed that the applicant could be considered for promotion to the Accountant cadre after his reversion to the MTS cadre. Pursuant thereto, the applicant was ultimately promoted as Accountant vide order dated 30.08.2018 with a deemed date of 01.04.2016, i.e., the date from which his juniors had been promoted, and his pay was also fixed accordingly. It was contended that this action had restored the applicant's rightful position vis-à-vis his juniors.
Learned counsel further contended that there was no justification for subsequently withdrawing the said promotion on the ground that the applicant had not sought reversion from the post of Clerk to the post of MTS under Fundamental Rule 15(a). According to the applicant, FR 15(a) had no application to the facts of the case, and requiring him to seek reversion from a higher post to a lower post merely to secure consideration for promotion under the Departmental Examination quota was unwarranted. The applicant had, in any event, not objected to the technical reversion directed pursuant to the clarificatory order dated 11.07.2016.
It was further submitted that the Respondents had, by misinterpreting the applicable rules and repeatedly seeking clarifications, unnecessarily complicated the applicant's case and delayed his promotion for about two years, despite the first clarificatory order having been issued in his favour in 2016. The subsequent clarificatory order dated 21.05.2020, issued after a gap of nearly four years and resulting in withdrawal of the benefit already granted to the applicant, was alleged to be punitive, arbitrary and unsustainable in law.
Learned counsel also submitted that the applicant was senior to several officials, who had been promoted as Accountants with effect from 01.04.2016. Despite his seniority and eligibility, the applicant was ignored while his juniors were promoted, which, according to him, was violative of Articles 14 and 16 of the Constitution and contrary to settled principles of service jurisprudence.
Lastly, learned counsel submitted that the rejection of the applicant's claim for stepping up of pay with effect from 01.04.2016, when his juniors had been promoted from that date, was also unsustainable. Reliance was placed upon Fundamental Rule 22(1)(a)(6) and the judgment of the Hon'ble Supreme Court in High Court of Punjab and Haryana v. Bahadur Singh Batta in Civil Appeal No. 9943 of 1995, decided on April 25, 2001. Learned counsel, therefore, urged that the impugned orders be quashed and set aside and the applicant be granted all consequential benefits, including the benefit of promotion to the post of Accountant with effect from 01.04.2016, at par with his juniors.
Per contra, learned counsel for the respondents, at the outset, submitted that the present OA is not maintainable, as the applicant ought to have challenged the judgment/order passed by this Tribunal in OA No. 2081/2020, decided on 15.07.2020.
On merits, learned counsel submitted that during the panel year 2015-16, vacancies were available in the cadre of Clerk and, since the applicant was eligible, he was promoted to the post of Clerk with effect from 01.04.2015, which constituted his first promotional opportunity from the post of MTS. Though the applicant had appeared in the Departmental Examination for Accountants in February 2015, prior to his promotion as Clerk, the result of the said examination was declared only on 13.05.2015, in which the applicant was declared successful.
Learned counsel further submitted that the applicant was not eligible for consideration for promotion to the post of Accountant under the Graduate MTS quota for the panel year 2016-17, as the relevant cut-off date for eligibility was 01.04.2016. By that date, the applicant had already been promoted as Clerk and, therefore, no longer belonged to the MTS cadre. His juniors who continued to remain in the MTS cadre and fulfilled the eligibility conditions were accordingly considered and promoted as Accountants on 03.04.2016 under the Examination quota. Thus, according to the respondents, the applicant's non-consideration for promotion from the MTS cadre was in accordance with the applicable Recruitment Rules.
It was submitted that, upon receipt of the applicant's representation dated 07.04.2016 seeking promotion as Accountant with effect from 01.04.2016, the matter was referred to the CAG office for guidance. The CAG, vide its communication dated 11.07.2016, advised that the applicant could be considered for promotion to the post of Accountant after reversion to the MTS cadre, with his pay being fixed at the stage at which it would have stood had he continued in the MTS cadre. Since certain doubts arose regarding implementation of the said directions, the matter was again referred to the CAG on 01.08.2016, followed by reminders dated 17.07.2017 and 01.03.2018. In the meantime, the applicant was promoted to the post of Accountant with effect from 02.04.2018 under the Seniority quota.
Learned counsel further submitted that, in order to redress the grievance of the applicant, a Review Departmental Promotion Committee was convened and, pursuant to its recommendations dated 21.08.2018, Office Order dated 30.08.2018 was issued, whereby the applicant was reverted to the MTS cadre and granted deemed-date promotion to the post of Accountant with effect from 01.04.2016, i.e., the date from which his juniors had been promoted under the Examination quota. However, such deemed-date promotion was only notional and did not carry arrears of pay and allowances.
It was further submitted that the CAG, vide its subsequent clarification dated 13.09.2018, clarified that, under the extant Recruitment Rules, a Graduate MTS employee with three years' continuous service, who passed the Departmental Examination could be considered for promotion as Accountant; similarly, a Clerk with three years' continuous service in the grade after passing the Departmental Examination could also be considered. Since the applicant had already been promoted as Clerk with effect from 01.04.2015, he could be considered for promotion to the Accountant cadre only after completing three years' service in the Clerk cadre. The CAG further clarified that promotion under the Examination quota after reversion from Clerk to MTS was subject to availability of vacancy and could be granted only prospectively.
Learned counsel submitted that, thereafter, on a further reference, the CAG vide its clarification dated 21.05.2020 held that the case did not fulfil the conditions prescribed in the DoP&T OM dated 13.04.1998 for convening a Review DPC. It was clarified that reversion of the officials from Clerk to MTS was required to be on their own volition under FR 15--A and, upon such reversion, they would be placed as junior-most in the MTS cadre and could be considered for promotion to Accountant prospectively, subject to availability of vacancies and recommendation of the DPC. Accordingly, learned counsel contended that, since the Review DPC convened in 2018 was not in accordance with the clarification issued by the CAG and the reversion of the applicant from Clerk to MTS had not been made on his own volition, the order dated 30.08.2018 could not be sustained. Consequently, Office Order dated 22.06.2020 was issued withdrawing the earlier order and restoring the position that existed prior to the Review DPC order dated 30.08.2018.
Learned counsel denied any allegation of mala fides or deliberate harassment and submitted that the respondents had acted bona fide and strictly in accordance with the successive clarifications issued by the CAG. Since the CAG had subsequently clarified that the Review DPC was not in order, the respondents were justified in withdrawing the consequential benefits flowing from the order dated 30.08.2018 and restoring the applicant's earlier position.
With regard to the applicant's claim for arrears of pay from 01.04.2016, learned counsel submitted that the CAG's clarification did not grant the applicant promotion as Accountant with effect from 01.04.2016 and, therefore, there was no question of payment of arrears. It was further submitted that, pursuant to the Tribunal's order dated 15.07.2020 in OA No. 2087/2020, the applicant's representation was duly considered and a reasoned and speaking order dated 11.08.2020 was passed within the stipulated time.
Lastly, learned counsel submitted that the applicant's claim for stepping up of pay at par with his erstwhile juniors was rightly rejected, since the order dated 30.08.2018 granting him deemed-date promotion had itself been withdrawn vide Office Order dated 22.06.2020. The rejection of the claim was accordingly communicated to the applicant vide letter dated 31.07.2020. It was also submitted that the respondents had promptly complied with the Tribunal's order dated 15.07.2020 by issuing the speaking and reasoned order dated 11.08.2020.
In rejoinder, learned counsel for the applicant refuted the submissions made on behalf of the respondents and contended that the stand taken by the respondents that the applicant was not eligible for promotion to the post of Accountant during the panel year 2016-17 is wholly misconceived and misleading. It was submitted that the applicant had never sought promotion to the post of Clerk; rather, it was the respondents who, on their own, promoted him as Clerk with effect from 01.04.2015, despite being fully aware that the applicant had already appeared in the Departmental Examination for promotion to the post of Accountant under the Graduate MTS category after completing more than three years of regular service in the MTS cadre. There was also no condition in the order of promotion to the post of Clerk that, upon qualifying the Departmental Examination, the applicant would forfeit or lose his eligibility for promotion to the post of Accountant.
Learned counsel further submitted that the result of the Departmental Examination was declared on 12.05.2015, wherein the applicant was declared successful, and by that date he had already completed the requisite three years of continuous service in the MTS cadre. Thus, according to the applicant, he had fulfilled the eligibility conditions prescribed under the applicable Recruitment Rules for promotion to the post of Accountant. The respondents, therefore, could not defeat his accrued eligibility merely on the ground that he had subsequently been promoted as Clerk.
It was further contended that, even after promoting the applicant as Clerk, the respondents ought to have considered his candidature for promotion to the post of Accountant, particularly when he was senior to the employees who were subsequently promoted from the MTS cadre under the Departmental Examination quota. Learned counsel submitted that the applicant had completed more than three years of regular service in the MTS cadre as on 01.04.2016 and that his juniors could not have been promoted to the post of Accountant by completely ignoring his claim. Such action, according to learned counsel, was arbitrary and contrary to the applicable Recruitment Rules as well as Articles 14 and 16 of the Constitution.
Learned counsel also placed reliance upon the C&AG's clarificatory order dated 11.07.2016 and submitted that the respondents themselves had sought guidance from the C&AG after receiving the applicant's representation dated 07.04.2016. The C&AG had thereafter directed that the applicant could be considered for promotion to the post of Accountant after reversion to the MTS cadre. Despite receipt of the said clarification from the highest authority in the Department, the respondent authority took more than two years to implement the same and ultimately issued the promotion order dated 30.08.2018 granting the applicant deemed-date promotion as Accountant with effect from 01.04.2016, i.e. the date on which his juniors had been promoted.
It was further submitted that, after implementing the aforesaid clarification and issuing the promotion order dated 30.08.2018, the respondents could not subsequently reopen the issue and withdraw the promotion to the detriment of the applicant. Learned counsel contended that the C&AG's clarification dated 11.07.2016 had not imposed any condition denying monetary benefits from 01.04.2016, and therefore the respondent authority could not have unilaterally imposed such a condition while implementing the said clarification.
As regards the subsequent clarification dated 13.09.2018, learned counsel submitted that the respondent No.1 had admittedly received the said clarification but failed to take the necessary action thereon. According to the applicant, the clarification required the authority to ascertain whether the applicant desired to continue in the Clerk cadre or opt for consideration for promotion to the Accountant cadre. Had the respondent authority acted upon the said clarification and sought the applicant's option at the relevant time, the subsequent controversy could have been avoided. The applicant therefore contended that the respondents could not take advantage of their own failure to act upon the clarification.
Learned counsel further assailed the subsequent C&AG clarification dated 21.05.2020, submitting that the respondents, after having already implemented the earlier clarification and granted the applicant deemed-date promotion with effect from 01.04.2016, reopened the settled issue after a considerable lapse of time. According to learned counsel, the said clarification resulted in withdrawal of the promotion already granted to the applicant and restoration of his earlier position with effect from 02.04.2018, thereby causing serious prejudice to him. It was contended that such retrospective withdrawal of the benefit already granted was contrary to the principles of natural justice, service jurisprudence and Articles 14 and 16 of the Constitution.
Learned counsel also contended that the plea of the respondents that the Review DPC was not permissible under the DoP&T OM dated 13.04.1998 could not justify withdrawal of the applicant's promotion without considering the fact that the Review DPC had itself been convened by the respondents and the applicant had thereafter been granted promotion with a deemed date of 01.04.2016. The applicant cannot, according to learned counsel, be made to suffer on account of an administrative decision taken by the respondents themselves, particularly when the applicant had neither played any role in convening the Review DPC nor committed any wrongdoing.
With regard to the respondents' contention that reversion from the post of Clerk to MTS ought to have been on the applicant's own volition, learned counsel submitted that the applicant had never been called upon to exercise any such option. The respondents, despite having received the C&AG's clarification dated 13.09.2018, failed to seek the applicant's consent or option and thereafter sought to rely upon the applicant's alleged failure to seek reversion as a ground for withdrawing his promotion. Such a course, according to learned counsel, was wholly unjustified, particularly when the omission was attributable to the respondents themselves.
Lastly, learned counsel submitted that the rejection of the applicant's claim for stepping up of pay was consequential to the illegal withdrawal of his promotion with effect from 01.04.2016. Since the applicant was entitled to be placed at par with his juniors who had been promoted from that date, his claim for pay fixation and consequential monetary benefits could not have been rejected merely by relying upon the subsequent withdrawal order. Learned counsel, therefore, urged that the impugned order dated 22.06.2020 withdrawing the applicant's deemed-date promotion, as well as the consequential orders, be quashed and set aside and the applicant be granted all consequential benefits, including promotion and pay fixation with effect from 01.04.2016.
In response to the above averments in the rejoinder, the respondents have filed their sur rejoinder by referring to the same, learned counsel for the respondents, submitted that the contentions raised in the rejoinder are substantially a reiteration of the grounds already taken in the Original Application and duly dealt with in the reply filed by the respondents. It was submitted that no new fact or circumstance has been brought on record warranting any reconsideration of the stand taken by the respondents.
Learned counsel submitted that the applicant was appointed as Multi-Tasking Staff (MTS) on 04.11.2011 and was promoted as Clerk under the seniority quota with effect from 01.04.2015. Although the applicant had appeared in the Departmental Examination for Accountants held in February 2015, the result thereof was declared only on 13.05.2015. On the crucial date, i.e. 01.04.2015, for the panel year 2015-16, the applicant was eligible for promotion to the post of Clerk and was accordingly promoted against the available vacancy, which constituted his first promotional opportunity from the MTS cadre.
It was further submitted that, upon his promotion as Clerk with effect from 01.04.2015, the applicant ceased to belong to the MTS cadre. Under the applicable Recruitment Rules, an official in the Clerk cadre was required to have three years of regular service in that cadre for consideration for promotion to the post of Accountant. Since the applicant had rendered only one year of regular service in the Clerk cadre as on 01.04.2016, he did not satisfy the requisite eligibility condition for promotion as Accountant from the Clerk cadre.
Learned counsel submitted that the applicant was, therefore, not eligible for consideration for promotion to the post of Accountant against the Graduate (Group ‘D’)/MTS quota for the panel year 2016-17, since on the crucial date, i.e. 01.04.2016, he was no longer working in the MTS cadre. The fact that certain officials junior to the applicant, who continued to remain in the MTS cadre, were promoted as Accountants under the examination quota with effect from 01.04.2016 would not confer any right upon the applicant, as the promotions were required to be made with reference to the eligibility of the concerned officials on the crucial date and against the vacancies available in the respective panel year.
Learned counsel further submitted that the contention of the applicant that he had never sought promotion to the post of Clerk is of no consequence. The applicant was promoted as Clerk under the seniority quota in accordance with the applicable rules and, having accepted such promotion, he could not claim, as a matter of right, simultaneous consideration against a promotional avenue available to officials continuing in the MTS cadre.
With regard to the applicant's representation seeking promotion as Accountant with effect from 01.04.2016, learned counsel submitted that the matter was referred by Respondent No.1 to Respondent No.2 for appropriate guidance, as the issue involved interpretation and application of the relevant Recruitment Rules and other service rules. Respondent No.2 initially furnished clarification vide communication dated 11.07.2016. However, as certain aspects of the clarification required further elucidation, Respondent No.1 again referred the matter to Respondent No.2 vide letter dated 01.08.2016. Thus, the delay in taking a final decision cannot be attributed to any mala fide intention on the part of the respondents.
Learned counsel submitted that, in the meantime, a Review Departmental Promotion Committee was convened and, on the basis of its recommendations, the applicant was reverted to the MTS cadre for the period from 01.04.2015 to 31.03.2016 and was granted a deemed-date promotion to the post of Accountant with effect from 01.04.2016, i.e. from the date on which his juniors in the MTS cadre had been promoted under the examination quota. His inter se seniority in the Accountant cadre was also restored. However, the benefit of such deemed-date promotion was granted only notionally and without arrears of pay and allowances.
Learned counsel further submitted that, subsequently, the applicant raised the issue of recovery of the pay drawn by him during the period in which he had actually worked as Clerk and also claimed actual monetary benefits on the basis of the deemed-date promotion. Consequently, the matter was again referred to Respondent No.2 for clarification. Respondent No.2, vide communication dated 21.05.2020, clarified that the Review DPC had not been convened in accordance with the conditions stipulated in DoP&T OM dated 13.04.1998. It was specifically clarified that reversion from the Clerk cadre to the MTS cadre, for the purpose of consideration for promotion to the post of Accountant, was required to be on the official's own volition.
It was further submitted that Respondent No.2 clarified that even if the applicant were to be reverted to the MTS cadre on his own volition, in terms of FR 15-A, he would have to be placed as the junior-most official in the MTS cadre and could thereafter be considered for promotion to the post of Accountant only prospectively, subject to the availability of vacancy and fulfillment of the prescribed eligibility conditions. Respondent No.2 also clarified that the pay drawn by the applicant while actually discharging duties as Clerk need not be recovered, as he had admittedly performed duties in that capacity.
Learned counsel submitted that, in view of the aforesaid clarification dated 21.05.2020, the earlier order dated 30.08.2018 granting the applicant deemed-date promotion to the post of Accountant with effect from 01.04.2016 could not be sustained. Accordingly, the said order was withdrawn vide impugned order dated 22.06.2020 and the position obtaining prior to issuance of the order dated 30.08.2018 was restored, along with consequential effects. It was submitted that the respondents had merely corrected an earlier administrative action in accordance with the subsequent clarification issued by the competent authority and, therefore, no illegality or arbitrariness could be attributed to such action.
With regard to the applicant's contention that he was eligible for promotion as Accountant on 01.04.2016, learned counsel reiterated that the applicant was neither an MTS on the relevant crucial date nor had he completed the requisite three years of regular service in the Clerk cadre. Thus, he did not fulfill the eligibility criteria prescribed under the Recruitment Rules for promotion to the post of Accountant through either of the two relevant channels.
Learned counsel further submitted that the result of the Departmental Examination for Accountant was declared on 13.05.2015 and promotions based upon the said examination were made prospectively with reference to the vacancies and eligibility conditions applicable to the respective panel years. Merely because the applicant had appeared in the examination prior to his promotion as Clerk would not, by itself, confer upon him an indefeasible right to be promoted as Accountant from a date on which he did not fulfill the prescribed eligibility conditions.
As regards the clarification dated 13.09.2018 issued by Respondent No.2, learned counsel submitted that by the time the said clarification was received, the applicant had already been regularly promoted to the post of Accountant. Therefore, no further action was taken by Respondent No.1 at that stage. Subsequently, when the issue concerning the validity of the Review DPC and the applicant's deemed-date promotion was again examined, Respondent No.2 furnished the clarification dated 21.05.2020, which specifically pointed out the defect in the earlier Review DPC proceedings.
Learned counsel submitted that the respondents had acted bona fide and throughout sought guidance from the competent authority whenever any doubt arose regarding the interpretation or implementation of the applicable rules. The impugned order dated 22.06.2020 was consequently passed pursuant to the clarification dated 21.05.2020 and cannot be characterized as an act of harassment, victimization or mala fide exercise of power.
With regard to the applicant's claim for stepping up of pay at par with his erstwhile junior, learned counsel submitted that the said claim was wholly consequential upon the order dated 30.08.2018. Once the Review DPC proceedings and the consequential deemed-date promotion granted thereunder were withdrawn and rendered non-existent, there remained no legal basis for extending the benefit of stepping up of pay to the applicant. The rejection of the said claim was, therefore, in conformity with the impugned order dated 22.06.2020. Learned counsel further submitted that the respondents had also acted in accordance with the clarification issued by Respondent No.2 and the applicable Recruitment Rules and service regulations. There was neither any bias nor any mala fide intention on the part of theCentral Administrative Tribunal respondents in taking the impugned action. The applicant, having failed to establish any enforceable right to retrospective promotion as Accountant with effect from 01.04.2016, could not seek continuation of the benefit flowing from an order which had subsequently been found to have been issued contrary to the applicable procedure.
It was, therefore, contended that the allegations and objections raised by the applicant in his rejoinder are devoid of merit and do not dislodge the stand taken by the respondents in their original reply. The respondents accordingly prayed that the rejoinder filed by the applicant be rejected and the Original Application, being devoid of merit, be dismissed.
We have carefully considered the rival submissions advanced by learned counsel for the parties and perused the pleadings and documents placed on record. The controversy, in substance, revolves around the legality of the order dated 22.06.2020 whereby the respondents withdrew the earlier order dated 30.08.2018 granting the applicant deemed-date promotion to the post of Accountant with effect from 01.04.2016, as also the consequential rejection of his representation dated 06.07.2020 vide order dated 11.08.2020.
Before examining the legality of the impugned action, it would be appropriate to notice the facts which are not seriously in dispute. The applicant was appointed as MTS on 04.11.2011. He had completed more than three years of regular service in the MTS cadre and appeared in the Departmental Examination for Accountants held in February 2015. However, during the pendency of the examination process, he was promoted as Clerk under the seniority quota with effect from 01.04.2015. The result of the Departmental Examination was declared on 13.05.2015 and the applicant was declared successful therein. Thereafter, the applicant sought consideration for promotion as Accountant with effect from 01.04.2016, when certain officials junior to him, who continued in the MTS cadre, were promoted as Accountants under the examination quota.
It is also not in dispute that the applicant's representation led to a reference by Respondent No.1 to the office of the C&AG and a clarification dated 11.07.2016 was issued. Thereafter, the matter continued to be examined and ultimately a Review DPC was convened in 2018. On the basis of the recommendations of the Review DPC, the applicant was reverted to the MTS cadre notionally for the relevant period and was granted deemed-date promotion to the post of Accountant with effect from 01.04.2016 vide order dated 30.08.2018. The said benefit was granted notionally and without arrears of pay and allowances.
Subsequently, on further examination of the matter, the C&AG vide clarification dated 13.09.2018 stated, inter alia, that under the applicable Recruitment Rules, a Graduate MTS having three years' continuous service in the grade on passing the Departmental Examination or a Clerk having three years' continuous service in the grade on passing the Departmental Examination could be considered for promotion as Accountant. The clarification further indicated that, in the case of the applicant, consideration from the MTS stream would require reversion from the Clerk cadre and that the individual concerned had to take a call whether to accept promotion to the Clerk cadre or wait for a vacancy in the Accountant cadre. The applicant, however, had by then already been regularly promoted as Accountant with effect from 02.04.2018. Thereafter, on a further reference made by Respondent No.1, the C&AG vide communication dated 21.05.2020 clarified that the Review DPC convened in the matter was not in accordance with the conditions stipulated in DoP&T’s OM dated 13.04.1998. It was further clarified that reversion from Clerk to MTS for the purpose of consideration for promotion as Accountant was required to be on the official's own volition and that, upon such reversion, the official would be placed as the junior-most in the MTS cadre and could thereafter be considered for promotion prospectively, subject to availability of vacancy and recommendation of the DPC. It was in consequence of this clarification that the respondents withdrew the order dated 30.08.2018.Central Administrative Tribunal
The principal question, therefore, is whether the applicant had an enforceable right to be promoted as Accountant with effect from 01.04.2016 merely because he had completed three years of service as MTS and had subsequently qualified in the Departmental Examination. In our considered view, the answer has to be in the negative. The eligibility for promotion has to be determined with reference to the Recruitment Rules and the relevant crucial date applicable to the particular panel year. It is an admitted position that, as on 01.04.2016, the applicant was no longer borne in the MTS cadre. He had already been promoted as Clerk with effect from 01.04.2015. Further, admittedly, he had completed only one year of regular service in the Clerk cadre as on 01.04.2016, whereas the applicable Recruitment Rules required three years' regular service in the feeder cadre.
The applicant's contention that he had completed more than three years of service in the MTS cadre before appearing in the Departmental Examination cannot, by itself, overcome the subsequent change in his cadre. The applicant's eligibility cannot be examined in isolation from the applicable method of recruitment and the cadre from which the promotion was to be made. The fact that he had appeared in the examination while serving as MTS does not create an indefeasible right to promotion to the higher post at a later point of time when he was no longer borne in the feeder cadre. Equally, the promotion of the applicant's juniors from the MTS cadre with effect from 01.04.2016 does not advance his case. Those officials continued to remain in the MTS cadre on the relevant date and, therefore, their eligibility was required to be considered with reference to their position on that date. The applicant, having already entered the Clerk cadre, stood on a different footing. Article 16 guarantees a right to fair and meaningful consideration for promotion in accordance with the applicable rules; it does not confer an absolute right to promotion irrespective of the eligibility conditions prescribed by the statutory rules. The Hon’ble Supreme Court has repeatedly held that an employee has a right to be considered for promotion but not a vested right to promotion itself as ruled by the Hon’ble Supreme Court in a catena of judgments, some of which are S.B. Bhattacharjee v. S.D. Majumdar, reported in (2007) 10 SCC 513 (Para 13); Hardev Singh v. Union of India, reported in (2011) 10 SCC 121 (Para 17); and High Court of Judicature at Madras v. R. Perachi, reported in (2011) 12 SCC 137 (Paras 32 and 33).
The applicant has also contended that he never sought promotion as Clerk and that it was the respondents who promoted him as Clerk before declaration of the Departmental Examination result. We are unable to accept that this circumstance, by itself, confers upon the applicant a right to be treated as continuing in the MTS cadre for all subsequent purposes. Once the promotion to Clerk had been made under the applicable seniority quota and the applicant became a member of the Clerk cadre, his eligibility for further promotion necessarily had to be determined in accordance with the Recruitment Rules applicable to the Clerk cadre, unless there was a specific rule or order preserving his eligibility under the MTS stream.
Significantly, the subsequent clarification dated 13.09.2018 itself lends support to the respondents' stand. It recognized two distinct channels of consideration, namely, Graduate MTS with the prescribed qualifying service and Clerks with the prescribed qualifying service. In the case of the applicant, three years of regular service in the Clerk cadre were completed only in 2018, following which he was regularly promoted as Accountant with effect from 02.04.2018. Thus, the applicant ultimately received promotion as Accountant upon fulfilling the eligibility condition applicable to his cadre.
We next examine the legality of the Review DPC held in 2018. The DoP&T OM dated 13.04.1998 prescribes the circumstances in which a Review DPC may be convened. The purpose of a Review DPC is essentially to rectify a technical or factual error committed at the stage of the original DPC. The instructions specifically provide that the Review DPC should consider only persons who were eligible on the relevant date and should not enlarge the zone of consideration or take into account subsequent events. In the present case, the Review DPC was not convened for correcting an error in an earlier DPC in which the applicant, though eligible, had inadvertently been omitted. Rather, the Review DPC proceeded on the basis that the applicant, despite having been promoted as Clerk, could notionally be brought back to the MTS cadre and thereafter granted promotion as Accountant with effect from 01.04.2016. Such a course did not merely correct a technical or factual error in the original consideration; it effectively altered the applicant's cadre position retrospectively and conferred upon him an eligibility which he did not possess on the relevant date.
The clarification dated 21.05.2020, therefore, cannot be said to be wholly without basis in the applicable instructions. The respondents were justified in taking note of the fact that the Review DPC had travelled beyond the permissible scope of a Review DPC contemplated under the DoP&T OM dated 13.04.1998. The official clarification that reversion from Clerk to MTS was required to be on the employee's own volition and that, even thereafter, consideration for promotion would be prospective and subject to vacancy and DPC recommendations is also consistent with the principle that promotion cannot be granted de hors the statutory Recruitment Rules.
In the present case, however, the impugned order dated 22.06.2020 did not deprive the applicant of his substantive position as Accountant altogether. The applicant had, in fact, already been regularly promoted as Accountant with effect from 02.04.2018. What was withdrawn was the erroneous deemed-date benefit granted from 01.04.2016 pursuant to the Review DPC. The effect of the impugned order was thus to restore the applicant's position to the one which existed immediately prior to the order dated 30.08.2018. This is materially different from a case where an employee, otherwise eligible under the Rules, is reverted to a lower post by way of punishment.
The plea of violation of Article 311(2) of the Constitution is, therefore, also without substance. The withdrawal of an erroneous deemed-date promotion, in the circumstances of the present case, was not founded on misconduct, inefficiency or any stigma attaching to the applicant. It was an administrative correction of an order which, according to the competent authority's subsequent clarification, had been issued contrary to the prescribed procedure and eligibility conditions. Article 311(2) of the Constitution is consequently not attracted merely because the correction has an adverse effect upon the applicant's seniority or monetary prospects.
The applicant has further relied upon the doctrine of natural justice, contending that the order dated 22.06.2020 was passed without giving him an opportunity of hearing. There is some substanceCentral Administrative Tribunal in the submission that, as a general rule, an employee should be given an opportunity before an erroneous promotion carrying civil consequences is withdrawn. However, in the facts of the present case, the applicant submitted a detailed representation dated 06.07.2020 against the order dated 22.06.2020, and the respondents thereafter considered the said representation and passed a reasoned order dated 11.08.2020. The applicant has not demonstrated before us any factual circumstance which, if placed before the respondents, could have altered the basic legal position that he did not satisfy the eligibility conditions for retrospective promotion as Accountant with effect from 01.04.2016.
More importantly, the principle of natural justice cannot be employed to sustain a benefit which is contrary to the statutory Recruitment Rules. As held in Indian Council of Agricultural Research & Anr. v. T.K. Suryanarayan & Ors., reported in (1997) 6 SCC 766, an administrative error cannot be perpetuated merely because its correction may cause some hardship. The Court is required to enforce the statutory rules rather than perpetuate an erroneous promotion.
We may now deal with the applicant's reliance upon the judgment of the Hon'ble Supreme Court in High Court of Punjab & Haryana v. Bahadur Singh Batta, reported in 2001 (5) JT 569. In the said case, the question concerned stepping up of pay of a senior employee where his erstwhile junior was drawing higher pay in the promoted grade, and the Hon’ble Supreme Court upheld the principle that the senior's pay could be stepped up in accordance with the applicable Fundamental Rules to remove such anomaly.
The said judgment, however, does not assist the applicant on the fundamental question involved herein. Stepping up of pay is a consequential relief. It presupposes an otherwise valid entitlement to the relevant post, promotion and fixation of pay. In the present case, once the deemed-date promotion from 01.04.2016 itself has been found unsustainable, the applicant cannot claim stepping up of pay on the basis of that very deemed-date promotion. The respondents were, therefore, justified in declining the applicant's claim for stepping up consequential upon the withdrawal of the order dated 30.08.2018.
The plea of mala fides also does not persuade us. Mala fide is a serious allegation and must be established by cogent material. The mere fact that the respondents initially issued the order dated 30.08.2018 and subsequently withdrew it after obtaining a further clarification from the competent authority does not, by itself, establish mala fide. On the contrary, the record indicates that the respondents repeatedly sought clarification from the C&AG because of the difficulty in interpreting the applicable Recruitment Rules and the manner in which the applicant's case was required to be dealt with.
We also do not find merit in the contention that the respondents are estopped from correcting the order dated 30.08.2018 merely because the applicant was granted the benefit thereof for some period. The doctrine of estoppel cannot ordinarily be invoked to compel a public authority to continue an action which is contrary to the statutory rules. The Hon’ble Supreme Court has consistently held that an erroneous benefit granted by the administration cannot become a source of perpetuating an illegality or an infringement of statutory provisions.
At the same time, we deem it appropriate to observe that the respondents' handling of the matter has not been entirely satisfactory. The applicant's representation remained under consideration for a considerable period, and the Review DPC was ultimately convened in 2018 on the basis of the earlier clarification. Thereafter, another clarification was obtained in 2020 resulting in withdrawal of the benefit already granted. Such administrative uncertainty could undoubtedly have been avoided by a more careful examination of the Recruitment Rules at the initial stage. However, administrative delay or an earlier erroneous decision cannot confer a substantive right contrary to the statutory rules.
26.Central Administrative Tribunal The applicant's case, therefore, has to be examined by separating two distinct issues: first, whether the applicant was entitled to promotion as Accountant with effect from 01.04.2016; and secondly, whether the respondents could correct the erroneous order granting such deemed-date promotion. On the first issue, we hold that the applicant was not eligible for promotion from the MTS stream on 01.04.2016, as he had already entered the Clerk cadre, nor had he completed three years' regular service in the Clerk cadre on that date. On the second issue, we hold that the respondents were competent to withdraw the erroneous deemed-date benefit after obtaining clarification from the competent authority and upon finding that the Review DPC did not conform to the governing instructions.
The applicant's regular promotion as Accountant with effect from 02.04.2018 has not been shown to be under challenge before us. Consequently, the withdrawal of the deemed-date promotion does not deprive him of his substantive promotion as Accountant; it only denies him the benefit of an ante-dated promotion which was not supported by the eligibility conditions prescribed under the Recruitment Rules.
In view of the foregoing discussion, we find no sufficient ground to interfere with the order dated 22.06.2020 withdrawing the deemed-date promotion granted pursuant to the Review DPC, or with the consequential order dated 11.08.2020 rejecting the applicant's representation. The applicant has failed to establish any vested or enforceable right to promotion as Accountant with effect from 01.04.2016.
In the result, for the foregoing reasons, we do not find substance in the instant OAs being devoid of merit and thus, the same are liable to be dismissed. We order accordingly.
The parties shall bear their own costs.