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Judgment
C. Hari Shankar, J.
The promotional hierarchy in the Civil wing of the Municipal Corporation of Delhi1, at the time with which we are concerned, may be represented thus: Assistant Engineer2 → Executive Engineer3 → Superintending Engineer4 → Chief Engineer5 → Engineer-in-Chief6
The respondent was directly recruited as AE in the Municipal Corporation of Delhi7 in May 1990. He was promoted as EE on ad hoc basis on 12 February 1997. In July 2006, he was made SE on current duty charge basis. In November 2006, his promotion as SE was made ad hoc.
A Departmental Promotion Committee8 met in 2008 for considering regular promotions to the post of EE. Following the recommendations of the DPC, the respondent was promoted to EE on regular basis with effect from 8 September 2008 vide order dated 28 September 2008, against vacancies of 1997-1998.
On 16 December 2015, a DPC convened for considering promotions to the post of SE against the panel years 1997-1998 to 2014-2015. The DPC submitted its recommendations on 17 December 2015, on the basis of which the respondent was promoted as SE on 29 December 2015 against the panel year 2014-2015. The final seniority list in the grade of SE was circulated on 23 February 2016, in which the respondent figured at S. No. 43.
The issue of promotions in the cadre of Engineers in the MCD not being carried out in time was raised before this Court in K.C. Meena v. Commissioner North DMC9, in which a Division Bench of this Court issued the following directions:
(1)South Delhi Municipal Corporation, North Delhi Municipal Corporation and East Delhi Municipal Corporation shall ensure that the regular promotions for vacancy in respect of which DPCs and review DPCs have not been carried out in terms of the Rules and Court orders are in fact done in a time bound manner, not later than three months from today.
(2)After compliance with the directions with respect to the Executive Engineer (Civil), the said process in respect of Superintendant Engineer shall be complied within four weeks thereafter. In the circumstances, the respondent Corporations shall ensure that the relevant exercise to determine the eligibility/zone of consideration and short-listing of the concerned candidates for the purpose of promotion for each year is carried out.
(3)After compliance with (1) and (2) above, the process shall be complied in respect of Chief Engineer (Civil) likewise in six months from today.
(4)The relevant dossiers containing the names of all the eligible Officers who fulfil the criteria in terms of the prevailing rules and Circulars, and are eligible to be considered, shall be forwarded to the UPSC with all particulars in the case of each cadre of Executive Engineer (Civil), Superintendant Engineer (Civil) and likewise Chief Engineer to facilitate the process.
(5)In case of any pending litigation, all litigations involving the process of selection, unless there are orders to the contrary, the concerned Corporation, as far as possible, proceed with the process of promotion and make it subject to the outcome of the said litigation.
Following the aforesaid directions issued by the Division Bench of this Court, the MCD convened a review DPC on 17/18 September 2015 to reconsider the case of the respondent for promotion as EE. Following the recommendations of the DPC, the respondent was once again promoted as EE with effect from 8 September 2008 vide order dated 15 October 2015. In so far as the promotion of the respondent as regular EE was concerned, therefore, there was no difference between the outcome of the DPC which convened in 2008 or the review DPC which met on 17/18 September 2015.
On 25 April 2016, the respondent was promoted as CE on ad hoc basis.
A proposal to promote the respondent as CE on regular basis was submitted by the MCD to the Union Public Service Commission10 on 9 February 2017. The proposal was returned by the UPSC on 15 February 2017 with the comment that 7 years’ regular service as SE was required for promotion as CE and that, as the respondent had been promoted as regular SE only on 29 December 2015, he lacked the requisite experience for promotion as CE.
This aspect, as well as the general issue of promotions to the posts of CE and E-in-C, were taken up by the Division Bench in its further order passed on 11 December 2018 in K.C. Meena, in which it was observed and directed as under:
“The respondents have filed the affidavit dated 12.07.2017 stated to be in compliance of the directions issued in our order dated 19.12.2014. While passing the said order, this court had directed all the Municipal Corporations to ensure that regular promotion for vacancies, in respect of which DPCs and Review DPCs had not been carried out in terms of the rules and court orders, be held in a time bound manner, not later than three months from the date of the said order.
The respondents have stated that they have undertaken the exercise of holding the DPCs for making regular promotions to the post of Assistant Engineer, Executive Engineer and Superintending Engineer. The sanctioned strength of the posts in the hierarchy have been disclosed as follows:
Sr. No. Name of Posts Sanctioned Strength Provisions of RR 1. Junior Engineer (Civil) 834 (Direct Recruitment) Diploma/ Degree in Civil 2. Asstt. Engineer (Civil) 396 (50% DR Quota, 50% PR quota). And now 75% for PR quota and 25% for DR quota w.e.f. 01.07.2004 JE (Civil) Degree holder, 05 years regular service
JE (Civil) Diploma Holders, 08 years regular service
3. Executive Engineer (Civil) 125 (Promotional post only) AE(Civil) degree holder, 05 year regular service AE(Civil) Diploma holders, 10 years regular service 4. Supdt. Engineer (Civil) 33 (Promotional Post) EE Civil having 05 years regular service 5. Chief Engineer (Civil) 13 (Promotional post) SE (Civil) having 07 years regular service 6. Engineer-in-Chief 03 (Promotional Post) CE(Civil) having 02 years regular service So far as promotion to the post of Chief Engineer (Civil) is concerned, it is stated that the last DPC for the post of Chief Engineer (Civil) was held in the year 2006. Further DPC for the post of Chief Engineer (Civil) has not been conducted due to non availability of eligible candidates. The respondents state that after finalisation of the seniority list of Superintending Engineer, they had requested the UPSC to conduct the DPC for the post of Chief Engineer (Civil). However, the UPSC has returned the same with the observation that there are no eligible candidates and hence regular DPC for the post of Chief Engineer (Civil) cannot be held. It is further stated that the senior most Superintending Engineer, as per their eligibility, are given adhoc promotion to the post of Chief Engineer. Similar is the response is with regard to holding of the DPC for the post of Engineer-in-Chief. In that respect it is stated that the last DPC was held in the year 2009 and, thereafter, due to non availability of regular Chief Engineers, further DPC has not been conducted.
The basis for the stand taken by the respondent - that there are no Superintending Engineers (Civil) with the requisite service in that grade on regular basis, is that since regular promotion to the post of Superintending Engineer (Civil) were notified on 29.12.2015 and thereafter on 16.01.2017, the seniority of the regular promotees in the grade of Superintending Engineer (Civil) would count from the said respective dates. The minimum service required in the grade of Superintending Engineer, under the Recruitment Rules, for being eligible for promotion to the post of Chief Engineer is seven years. On that premise, the respondents have urged that none of the Superintending Engineers are eligible, as on date, for consideration for promotion to the post of Chief Engineer, though vacancies for the said posts are existing.
Learned counsel for the petitioner submits that this stand of the respondents is incorrect and unsustainable. The petitioners have been officiating as Superintending Engineers since the year 2006. We may observe that there may be others who may be officiating as Superintending Engineers since the year 2006, or even earlier, and are suffering only due to delayed holding of DPCs.
In our view, the stand taken by the respondent is neither fair nor legally sustainable. Those officers who were eligible to be promoted as Superintending Engineers, but were not so promoted on regular basis on account of failure of the respondents to hold the DPC, and were asked to officiate in the grade of Superintending Engineers, cannot be denied their seniority in the said grade from the dates that they have been officiating, or the dates when the vacancy arose, whichever is later.
Our attention has been drawn to two orders passed by this court. The first order was passed in CWP No.3091/1997 on 24.05.2002. A learned Single Judge of this Court (Sanjay Kishal Kaul, J., as his Lordship then was) directed as follows:
“In view of the aforesaid a direction is issued that service rendered by the petitioners on current date charge will be counted towards their service for determining the eligibility for promotion to the next higher post if the petitioners were eligible, a vacancy existed and the DPC was not held within a period of one year from the vacancy arising. The respondents shall do the needful and intimate it to the petitioners within a period of 6 weeks from today. Writ petition is disposed of in the aforesaid terms”.
The second order was passed by this court in WP(C) No.5985/2002 on 28.04.2004 by placing reliance on the order passed in WP(C) No.3091/1997. This court directed the MCD that service rendered by the petitioners in that case on current duty charge will be counted towards their service for determining their eligibility for promotion to the next higher post. Pertinently, these orders have been implemented by the Municipal Corporation as is evident from the communication dated 23.07.2012 issued by the Additional Commissioner (Estt.). Taking note of, and placing reliance on the judgment in CWP No.3091/1997 dated 24.05.2002 and the order in WPC No.1548/1999 dated 07.05.2004, the respondents, inter alia, observed:
“During the meeting of the Screening Committee, it was observed that in some Court cases, such as CW 3091/1997 dated 24.05.2002 in the case of P.S. Dahiya & Ors and also in order dated 7.5.2004 in W.P.(C.) No. 1548/99, the Hon’ble High Court of Delhi had directed the MCD that service rendered by the petitioners on Current Duty Charge be counted towards their service for determining their eligibility for promotion to the next higher grade. Taking into account the position brought out above, particularly provisions contained in Circular No.F3/2/72/CED(A)/ 167 dated 14.12.1973, the directions of the judiciary in the cited cases and DOP&T’s instructions regarding consideration of promotion of the senior along with his junior on fulfilling the prescribed conditions, the Committee is of the view that the service rendered on Current Duty Charge basis needs to be counted for the purpose of reckoning of service in the post of SE(C) for promotion to the post of CE(C) on Current Duty Charge basis”.(emphasis supplied)
Thus, it does not lie in the mouth of the respondents to contend that the service rendered by the petitioners as Superintending Engineers on current duty charge basis or adhoc basis would not count for purpose of determining their eligibility for consideration for regular promotion to the post of Chief Engineer. We, accordingly, direct the respondents to determine the seniority of the petitioners in the grade of Superintending Engineers from the date that they have been working in the said grade either on current duty charge / officiating basis, or from the date when the regular vacancy arose, whichever is later.
The respondents shall draw up eligibility and seniority lists and send the requisition to the UPSC for holding DPCs for the posts of Chief Engineer (Civil). The same principle would be followed for holding the DPC for the post of Engineer-in-Chief. Compliance shall be made within four weeks. Petitions stand disposed of in the aforesaid terms.”
On 3 August 2021, the respondent was promoted E-in-C on current duty charge basis. On 31 August 2023, the respondent superannuated.
After the respondent had superannuated, a DPC constituted by the UPSC, in its recommendations dated 29 December 2023, found the respondent fit for promotion as CE. No action was taken on the said recommendations, as the respondent had superannuated in the interregnum.
In these circumstances, the respondent approached the Central Administrative Tribunal by way of OA 3205/2024, praying that the recommendations dated 29 December 2023 of the DPC be quashed and set aside, and that his case for further promotion as CE be reconsidered treating the service rendered by him as SE, whether on current duty charge or on ad hoc basis, from July/November 2006, as qualifying service therefor. Consequential reliefs were also sought.
On 25 April 2016, the respondent was promoted as CE on ad hoc basis.
During the course of proceedings in the OA, the respondent filed MA 4348/2024. Pursuant to orders passed by the Tribunal in the said MA, a review DPC, constituted on 18 June 2024, met on 16 October 2024 to consider the entitlement of the respondent for promotion as EE. No action was, however, taken on the recommendations of the said DPC.
By judgment dated 23 May 2025, the Tribunal has allowed OA 3205/2024 in the following terms:
“20.1Accordingly, the OA is allowed. The respondents are directed:-
(i)To treat the applicant is eligible for consideration for regular promotion to the post of Chief Engineer (Civil) by counting his ad hoc service from 2006 onwards, particularly in light of the regularisation effected through DPCs held in 2015.
(ii)To convene a Review DPC within a period of 3 months from the date of receipt of this order and consider the applicant for promotion to the post of Chief Engineer (Civil) against the appropriate vacancy year.
(iii)If found fit, the applicant shall be granted regular promotion with all consequential benefits, including pay fixation, seniority, and arrears.
21.The respondents are directed to consider the applicant for notional promotion to the post of Chief Engineer and Engineer-in-Chief w.e.f. the date he became eligible, with all consequential benefits, in accordance with law.”
The MCD has preferred the present writ petition, claiming to be aggrieved by the judgment dated 23 May 2025 of the Tribunal.
We have heard Ms. Namrata Mukim, learned Standing Counsel for the MCD and Mr. S.K. Gupta, learned Counsel for the respondent, at length.
Ms. Mukim has essentially relied on the judgment of the Supreme Court in State of U.P. v. Giriraj Prasad Sharma11, to contend that, post superannuation, no one can be promoted, actually or even notionally from a date prior to superannuation. Inasmuch as, by the date of holding of the DPC on 29 December 2023, which considered the case of the respondent for promotion as CE, the respondent had already superannuated on 31 August 2023, Ms. Mukim’s contention is that the respondent could not have been promoted, even notionally from the date of eligibility.
Responding to the submission, Mr. Gupta contends that the decision in Giriraj Prasad Sharma was rendered in the context of the UP Minor Irrigation Subordinate Engineering Service Rules, 200912 and would not, therefore, apply to the present case. He has placed reliance on OMs dated 12 October 1998, 14 November 2014 and 18 July 2024 issued by the Department of Personnel and Training13, which envisaged notional promotion even of persons who had superannuated, from dates prior to their superannuation. He further relies on State of West Bengal v. Amal Satpathi14.
Mr. Gupta further points out that, in its judgment dated 11 December 2018 in WP (C) 5356/2014 and connected cases, including WP (C) 3921/201415 filed by the respondent, it was specifically directed by this Court that, by computing the seniority of the respondent in the grade of SE from the date on which he was working in the said grade, on current duty/officiating basis, or from the date when the regular vacancy arose, whichever was later, eligibility and seniority lists be drawn up and requisition sent to the UPSC for holding DPCs for the post of CE, as well as for E-in-C. The SLP preferred against this decision was dismissed by the Supreme Court. As such, Mr. Gupta submits that it cannot line the mouth of the MCD to contend that was not required to consider the case of the respondent for promotion as CE and E-in-C merely because he had superannuated in the meanwhile.
Analysis
The only issue that is required to be considered is whether the direction issued by the Tribunal can sustain, in view of the fact that the respondent superannuated on 31 August 2023, before the DPC for considering his case for regular promotion as CE met on 16 October 2024. Ms. Mukim’s contention is that an officer or employee who has retired cannot be considered for promotion and that, even if he is found fit by the DPC convened for the said purpose after the officer retired, he would not be entitled even to notional promotion with effect from the date of entitlement of the officer, prior to his retirement. She relies, for this purpose, on the judgment of the Supreme Court in Giriraj Prasad Sharma.
Mr. Gupta has, per contra, referred to the OMs dated 12 October 1998, 14 November 2014 and 18 July 2024 issued by the DOPT and contends that these OMs envisage notional promotion, even of an officer who has retired, to the higher post, from a date prior to his retirement, if found fit by the DPC duly convened for the purpose. These OMs, submits Mr. Gupta, were not under consideration before the Supreme Court in Giriraj Prasad Sharma which was rendered in the context of the 2009 UP Rules.
We find substance in the submissions of Mr. Gupta.
There is no gainsaying that the decision in Giriraj Prasad Sharma expressly purports to have been rendered in the context of the 2009 UP Rules. In fact, the Supreme Court, in Giriraj Prasad Sharma, has expressly noted that there were no rules which permitted retrospective promotion, even on a notional basis, of the respondent before it. This judgment cannot, in our respectful view, apply to a case where such provisions exist, whether in the form of rules or binding executive instructions.
The OMs dated 12 October 1998, 14 November 2014 and 18 July 2024 issued by the DOPT, cited by Mr. Gupta, specifically so permit. We may reproduce, in this context, the said OMs, in extenso, thus:
OM dated 12 October 1998
“No. 22017/4/98-Estt.(D)
Government of India
Ministry of Personnel, Public Grievances and Pension
(Department of Personnel and Training)
North Block, New Delhi-110001
October 12, 1998
Office Memorandum
Subject: Procedure to be followed by the Departmental Promotion Committee (DPCs) in regard to retired employees.
The undersigned is directed to invite reference to the Department of Personnel and Training (DOP&T) Office Memorandum No. 22011/5/86-Estt.(D)/dated April 10, 1989 containing the consolidated instructions on DPCs. The provisions made in paragraph 6.4.1 of the aforesaid Office Memorandum lay down the following procedure for preparation of year-wise panel(s) where for reasons beyond control, DPC(s) could not be held for the year(s) even though vacancies arose during the year(s):-
(i)Determine the actual number of regular vacancies that arose in each of the previous year (s) immediately preceding and the actual number of regular vacancies proposed to be filled in the current year separately.
(ii)consider in respect of each of the years those officers only who would be within the field of choice with reference to the vacancies of each year, starting with the earliest year onwards.
(iii)Prepare a ‘Select List’ by placing the select list of the earlier year above the one for the next year and so on.
2.Doubts have been expressed in this regard as to the consideration of employees who have since retired but would also have been considered for promotion if the DPC(s) for the relevant year (s) had been held in time.
3.The matter has been examined in consultation with the Ministry of Law (Department of Legal Affairs). It may be pointed out in this regard that there is no specific bar in the aforesaid Office Memorandum dated April 10, 1989 or any other related instructions of the Department of Personnel and Training for consideration of retired employees, while preparing year-wise panel(s), who were within the zone of consideration in the relevant year(s). According to legal opinion also it would not be in order if eligible employees, who were within the zone of consideration for the relevant year (s) but are not actually in service when the DPC is being held, are not considered while preparing year-wise zone of consideration/panel and, consequently, their juniors are considered (in their places) who would not have been in the zone of consideration if the DPC(s) had been held in time. This is considered imperative to identify the current zone of consideration for relevant year(s). Names of the retired officials may also be included in the panel(s). Such retied officials would, however, have no right for actual promotion. The DPC(s) may, if need be, prepare extended panel(s) following the principles prescribed in the Department of Personnel and Training Office Memorandum No. 22011/8/87-Estt. (D) dated April 9, 1996.
4.Ministries/Departments are requested to bring these instructions to the notice of all concerned including their attached and subordinate officers.
Sd/-
(K.K. Jha)
Director (Establishment)”
*****
OM dated 14 November 2014
“NO. 22011/1/2014-Estt(D)
Government of India
Ministry of Personnel, Public Grievances and Pensions
(Department of Personnel and Training)
North Block, New Delhi-110001
Dated- 14th November, 2014
OFFICE MEMORANDUM
Subject: - Inclusion of eligible officers who are due to retire before the likely date of vacancies, in the panel for promotion-Regarding.
The undersigned is directed to invite reference to the Department of Personnel and Training Office Memorandum No. 22011/4/98-Estt(D) dated October 12, 1998 regarding consideration of retired employees who were within the zone of consideration in the relevant year(s) but are not actually in service when the DPC is being held. The said OM provides as follows:-
“……….There is no specific bar in the aforesaid Office Memorandum dated April 10, 1989 or any other related instructions of the Department of Personnel and Training for consideration of retired employees, while preparing year-wise panel(s), who were within the zone of consideration in the relevant year(s). According to legal opinion also it would not be in order if eligible employees, who were within the zone of consideration for the relevant year(s) but are not actually in service when the DPC is being held, are not considered while preparing year-wise zone of consideration/panel and, consequently, their juniors are considered (in their places), who would not have been in the zone of consideration if the DPC(s) had been held in time. This is considered imperative to identify the correct zone of consideration for relevant Year(s). Names of the retired officials may also be included in the panel(s). Such retired officials would, however, have no right for actual promotion. The DPC(s) may, if need be, prepare extended panel(s) following the principles prescribed in the Department of Personnel and Training Office Memorandum No.22011/8/87-Estt.(D) dated April 9, 1996."
2.Appointment Committee of Cabinet has observed that DPCs often do not consider such eligible officers who are retiring before the occurrence of the vacancy in the panel year. These undesirable trends negate the very purpose of the above said Office Memorandum No. 22011/4/98-Estt(D) dated October 12, 1998 and it is also against the principle of natural justice.
3.All the Ministries/Departments are therefore advised to ensure strict compliance of the instructions of the Department of Personnel & Training issued vide this Department's OM No. 22011/4/98-Estt(D) dated October 12, 1998.
4.These instructions may please be brought out to the notice of all concerned including attached and subordinate offices.
Sd/-
(S.K. Prasad)
Under Secretary to the Govt. of India
Tele. No. 23040340”
*****
OM dated 18 July 2024
“No. 22011/1/2023-PP (D-Promotion)
Government of India
Ministry of Personnel, Public Grievances & Pensions
Department of Personnel & Training
North Block, New Delhi
Dated the 18th July, 2024.
OFFICE MEMORANDUM
Subject: Procedure to be followed by the Departmental Promotion Committee (DPC) with regard to retired employees -reg.
The undersigned is directed to invite reference to this Department's O.M. of even number dated 12.2.2024 on the captioned subject revising provisions of para 3 of DoPT's OM No. 22011/4/98-Estt.(D) dated 12.10.1998 with effect from 1.1.2024 (i.e. vacancy year 2024 onwards).
2.It has now been decided to withdraw OM dated 12.2.2024 as non-est. Consequently, para '3' of OM No. 22011/4/98-Estt.(D) dated 12.10.1998 stands restored with effect from 1st January, 2024. All Departmental Promotion Committee (DPC) meetings conducted till date as per provisions of OM dated 12.2.2024, may be reviewed accordingly.
3.All Ministries/Departments may take note of the above. Attention is again invited to Ο.Μ. No. 22011/4/2013-Estt. (D) dated 8.5.2017, which stipulates that DPC is to be convened well in advance as per the Model Calendar so that the approved select panels are ready on the date of commencement of the vacancy year. Ministries/Departments may, therefore, strictly adhere to the Model Calendar and ensure timely conduct of DPCs in order to avoid delays.
Sd/-
(A. Bhattacharya)
Director”
It is clear from a bare reading thereof that the aforesaid OMs issued by the DOPT specifically envisage consideration, even of retired government servants, of their entitlement to promotion to higher grades, provided the entitlement relates to a time when they were in service, even if the DPC which meets to consider their cases for promotion does so after they have retired. The Government of India (Allocation of Business) Rules, 1961, issued under Article 77 of the Constitution, specifies the DOPT as the Nodal Ministry to deal with service issues of government servants. Executive instructions issued by the DOPT, therefore, have the force of law and are entitled to the same respect which is accorded to statutory provisions, provided they are not in conflict with the latter. Service issues of government servants, for which there is no provision in any codified statute or rules, can legitimately be addressed by executive instructions issued by the DOPT.
In the face of the aforesaid OMs issued by the DOPT, we are not in a position to accept Ms. Mukim’s contention that, as the respondent had superannuated on 31 August 2023, the Tribunal could not have directed implementation of the recommendations of the DPC which met on 29 December 2023 to consider his case for promotion as CE.
Besides, in the present case, the DPC met pursuant to the directions issued by the Division Bench of this Court in its order dated 11 December 2018 in WP (C) 5356/2014. That order clearly directed that the case of the respondent be considered for promotion not only to the post of SE but further to the posts of CE and E-in-C. Inasmuch as the petitioner had acted in compliance of the order passed by the Court, it was incumbent on the petitioner to carry the exercise to its logical conclusion and give effect to the recommendations of the DPC which considered the case of the respondent for promotion as CE.
Conclusion
We, therefore, do not find any error in the view of the Tribunal or in the directions issued by it.
The writ petition is, therefore, bereft of merits and is accordingly dismissed with no orders as to costs. We direct compliance with the order of the Tribunal within a period of eight weeks from today.
Footnotes
- 1."MCD" hereinafter
- 2.“AE” hereinafter
- 3.“EE” hereinafter
- 4.“SE” hereinafter
- 5.“CE” hereinafter
- 6.“E-in-C” hereinafter
- 7."MCD" hereinafter
- 8."DPC" hereinafter
- 9.Order dated 19 December 2014 in WP (C) 5356/2014
- 10."UPSC" hereinafter
- 11.Judgment dated 6 January 2025 in Civil Appeal No. 161-162/2025
- 12."the 2009 UP Rules" hereinafter
- 13.“DOPT” hereinafter
- 14.2024 SCC OnLine SC 3512
- 15.Dilip Ramnani v. Director, Local Bodies & Ors