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Judgment
ORDER
Hon'ble Dr. Sumeet Jerath, Member (A) :
The instant OA has been filed by the applicant under section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-
“1.To call for the records of the case and quash and set aside the impugned Order dated 22.01.2016 and direct the respondents to consider and promote the applicant to the post of Administrative Officer (AO) w.e.f. 20.07.2010 with all consequential benefits.
2.To award costs in favor of the applicant and pass any order or orders which the Hon'ble Tribunal may deem just & equitable in the facts & circumstances of the case.”
The factual matrix of the case as per the counsel for the applicant is that the applicant joined the service of the respondents as an Assistant on 30.03.1985 and was promoted as Assistant Administrative Officer (AAO) on 26.10.1998. The next promotional post was Administrative Officer (AO) which was to be filled by promotion and direct recruitment in the prescribed ratio. A Cadre Review Committee was constituted on 19.04.2007, which recommended, inter alia, increase in the number of posts of Administrative Officer and creation of certain other posts. The counsel relied upon the Cadre Review Committee Report and contended that the proposal ultimately resulted in creation of 40 additional posts of AO. According to him, the Cadre Review recommendations were accepted by the Ministry of Finance on 23.06.2010 and the approval was received by ICAR on 24.06.2010. A DPC was held on 28.04.2010 for promotion to the post of AO for the vacancy year 2010-11. According to the applicant, his name figured at Sl. No. 9 and he claimed that he had been found eligible and suitable for promotion. On this basis, he contended that when 40 additional posts of AO became available pursuant to cadre review, there was no necessity for holding another DPC and that he ought to have been promoted against the newly created posts. He further pleaded that the respondents immediately after the acceptance of the Cadre Review recommendations, held proceedings and promoted certain officers to the posts of Registrar, Director and Secretary against the newly created posts and the same benefit was not extended to the officers eligible for promotion to the newly created posts of AO and such action was discriminatory. The applicant, however, submitted a notice for voluntary retirement under Rule 48-A of the CCS (Pension) Rules, 1972. His request for voluntary retirement was initially accepted and on his request, the date of retirement was subsequently extended to 30.09.2010. Subsequently, the applicant made a request for withdrawal of his voluntary retirement. However, his request was not accepted and he stood retired from service w.e.f. 30.09.2010. The applicant pleaded that despite his retirement, he was entitled to be considered for promotion against the additional posts which had become available before his retirement. The counsel thereafter submitted representations seeking consideration of his claim for promotion which was examined by the respondents and rejected the claim vide order dated 22.01.2016, which has given rise to the present proceedings.
The counsel for the applicant took the following ground while supporting his case :-
“5.1The action/inaction of the respondents is totally discriminatory vis-à-vis those for whom the respondents constituted, held DPC and promoted employees to the newly created posts carrying pay scale of Rs. 37400-67000 GP Rs.8700 on the basis of Cadre Review Committee Report. However, this benefit was not extended to the applicant to be promoted to the post of AO for which even no DPC was required to be held."
The Miscellaneous Application (M.A. No. 2435/2026 has been filed by the original respondents seeking appropriate directions regarding proper representation and joinder of parties before the Tribunal. The counsel for the applicant stated that while a Counter Affidavit has already been filed on behalf of Respondent No. 2 (Director, IARI), a communication gap led to a lack of formal representation for Respondent No. 1 prior to 08.04.2026. The application clarified that ICAR is an independent society registered under the Societies Registration Act, 1860, and the Department of Agricultural Research & Education (DARE) has no operational role in the service or promotion matters of ICAR employees. Pursuant to Rules 22 and 23 of the ICAR Rules and Bye-Laws, the Secretary, ICAR is the designated principal officer through whom the society can sue or be sued, while the DG, ICAR and Secretary, ICAR have validly delegated their powers to verify pleadings and sign Vakalatnamas to designated senior administrative officers. Consequently, arraying Respondent No. 1 as DARE-cum-DG, ICAR constitutes a mis-joinder of parties, whereas the Secretary, ICAR is a necessary party whose absence amounts to non-joinder. The MA applicant (original respondents) prayed that first the issue of mis-joinder/non-joinder be adjudicated and order of deletion of Respondent No. 1 in its current form be passed and adoption of the existing Counter Affidavit filed by Respondent No. 2 on behalf of Respondent No. 1 be permitted.
As we are taking into account the reply on the record, the MA No. 2435/2026 stands disposed of.
Per contra, the counsel for the respondents vehemently opposed the OA. He submitted that the applicant had approached the Tribunal after an unexplained and substantial delay, although the alleged cause of action relates to the vacancy year 2010-11 and the applicant retired on 30.09.2010. He pointed out that the applicant raised his grievance regarding promotion only several years thereafter. On merits, the respondents have specifically disputed the applicant's assertion that he had been found eligible and suitable for promotion by the DPC held on 28.04.2010. According to the counsel four vacancies of AO were available at that stage and 12 AAOs were within the zone of consideration. The DPC recommended four officers for the Select Panel and kept three officers, at Sl. Nos. 5 to 7, in the reserved panel. The applicant was at Sl. No. 9 and was not assessed by the DPC. Consequently, he could neither be treated as having been found suitable nor as having been included in the Select Panel or Reserved Panel. The respondents have accordingly contended that the applicant's claim that he was already in a select list and that no further DPC was required is factually incorrect. In the absence of any assessment of the applicant by the DPC, he could not claim any vested or accrued right to promotion merely because his name figured in the zone of consideration. The counsel further explained the sequence relating to the applicant's voluntary retirement. His initial request for voluntary retirement was accepted vide order dated 04.05.2010; his request for change of the date of retirement was also accepted; and his request for cancellation of his temporary transfer to Pune was also accepted. However, his request for withdrawal of voluntary retirement was considered and rejected in public interest. It has also been pointed out that the applicant challenged the rejection of his request for withdrawal of voluntary retirement in OA No. 558/2011. The Tribunal directed reconsideration of the matter in the light of certain cases and judgments cited by the applicant. Pursuant thereto, the competent authority reconsidered the matter and passed a reasoned order dated 20.03.2012. The said decision was thereafter upheld by this Tribunal in OA No. 1059/2012 on 09.04.2013 and by the Hon'ble Delhi High Court on 20.05.2013. Thus, the applicant's voluntary retirement from 30.09.2010 attained finality. He further submitted that during the recruitment year 2010-11, DPCs for promotion to the post of AO were held on two occasions, i.e. on 28.04.2010 and 11.03.2011. At the first DPC, the applicant was within the zone of consideration but could not be promoted as there were only four vacancies and he was at Sl. No. 9. By the time the second DPC was convened consequent upon availability of posts pursuant to cadre review, the applicant had already retired on 30.09.2010 and was therefore, no longer in service for consideration for promotion. He also explained that the post of AO is a Group 'A' post belonging to the combined cadre of Administrative Officers having all-India service liability, whereas the post of AAO is an institute-based post. The competent authority for appointment to the post of AO is the Director General, ICAR. He therefore submitted that the applicant could not claim promotion merely on the basis of his position in the seniority list of AAOs at IARI. The counsel specifically stated that retired officials may be included in the panel for determining the correct zone of consideration, but such retired officials do not thereby acquire a right to actual promotion. Thus, he prayed for dismissal of the OA on the above quoted arguments.
The applicant filed a rejoinder controverting the submissions of the respondents. He reiterated that there had been a material change in circumstances between the date of his notice for voluntary retirement and the date on which he sought withdrawal thereof, since his family circumstances had improved and additional posts of AO had become available. He also reiterated that he had been discriminated and that the respondents ought to have considered him for promotion against the newly created posts. He relied upon documents and information obtained under the RTI Act in support of his claim.
We have given our thoughtful consideration to the rival submissions and examined the documents on record. We have observed that the applicant had approached the Tribunal after inordinate delay and unexplained laches. While he retired in 2010, he approached the Tribunal in 2016 – after a delay of six years. It is a settled principle in service jurisprudence that delay defeats equity and justice and that Rip Van Winkles and Kumbhakarnas cannot suddenly wake from their deep slumber and then suddenly rise like a phoenix to claim their right as per the ratio given in the celebrated Supreme Court judgment in Chennai Metropolitan Sewerage Board vs. T.T. Murali Babu - (2014) 4 SCC 108 :-
“16.Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinise whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant a litigant who has forgotten the basic norms, namely “procrastination is the greatest thief of time" and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis.
17.In the case at hand, though there has been four years delay in approaching the court, yet the writ court chose not to address the same. It is the duty of the court to scrutinise whether such enormous delay is to be ignored without any justification. That apart, in the present case, such belated approach gains more significance as the respondent employee being absolutely careless to his duty and nurturing a lackadaisical attitude to the responsibility had remained unauthorisedly absent on the pretext of some kind of ill health. We repeat at the cost of repetition that remaining innocuously oblivious to such delay does not foster the cause of justice. On the contrary, it brings in injustice, for it is likely to affect others. Such delay may have impact on others' ripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons who compete with "Kumbhakarna" or for that matter "Rip Van Winkle". In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold.”
Also as per the ratio given in the landmark Supreme Court judgment in Civil Appeal No. 5835 of 2025 – P. Sakthi vs. Govt. of Tamil Nadu and others dated 02.05.2025 it has been clearly stated in administrative law that while consideration for promotion is a right; per se promotion in case of a Govt. servant is not an inalienable and indefeasible right. We have taken note that during the recruitment year 2010–11, Departmental Promotion Committees (DPCs) for promotion to the post of Administrative Officer (AO) was held on two dates – i.e., 28.04.2010 and 11.03.2011. In the first DPC on 28.04.2010, the applicant was within the zone of consideration (ZOC) but could not be promoted as there were only four vacancies in the merit list and he was at Serial No. 9. Unfortunately, by the time the second DPC was held on 11.03.2011, the applicant had already retired on 30.09.2010 and was therefore no longer in service for consideration of promotion.
It is also a settled principle in administrative law and service jurisprudence that given the ratio in Hon'ble Supreme Court's judgment – Govt. of West Bengal vs. Dr. Amal Satpathi - CA No. 13187/2024 dated 27.11.2024 :-
“20.In the instant case, it is evident that while respondent No. 1 was recommended for promotion before his retirement, he could not assume the duties of the Chief Scientific Officer. Rule 54(1)(a) of the West Bengal Service Rules, clearly stipulates that an employee must assume the responsibilities of a higher post to draw the corresponding pay, thus, preventing posthumous or retrospective promotions in the absence of an enabling provision.
21.While we recognize respondent No.1's right to be considered for promotion, which is a fundamental right under Articles 14 and 16(1) of the Constitution of India, he does not hold an absolute right to the promotion itself. The legal precedents discussed above establish that promotion only becomes effective upon the assumption of duties on the promotional post and not on the date of occurrence of the vacancy or the date of recommendation. Considering that respondent No. 1 superannuated before his promotion was effectuated, he is not entitled to retrospective financial benefits associated to the promotional post of Chief Scientific Officer, as he did not serve in that capacity.
22.As a result of the above discussion, the judgment dated 1 February, 2023 passed by the High Court of Calcutta and the judgment dated 26th June, 2019 passed by the Tribunal are unsustainable in the eyes of law and are hereby reversed and set aside.” that a Govt. servant after retirement ceases to have a right for promotion as promotion only becomes effective upon the assumption of duties on the promotion post and not on the date of occurrence of the vacancy or the date of recommendation.
It is also a settled principle in Administrative Law that in matters of promotion, the DPCs are free to fix their criteria for promotion in their 'collective wisdom' and Courts should not ordinarily interfere in their decisions, nor do a judicial review unless there is a patent discrimination, mala fide, illegality or arbitrariness exhibited as per the ratio given in the following judgment of Hon'ble Supreme Court:
Dalpat Abasaheb Solunke vs. Dr B.S. Mahajan & others (1990) 1 SCC 305;
UPSC vs. Hiranyalal Dev & others (1988) 2 SCC 242;
UOI vs. K. Rajaiah & others (2005) 10 SCC 15 and
UOI vs. S.K. Goel & others (2007) 14 SCC 641
In the instant OA, we find no evidence of any discrimination, mala fide or arbitrariness.
In the light of the above analysis and reasoning, we are of the considered opinion that the balance of convenience in the instant OA clearly lies with the respondents. The instant OA is devoid of merit, deserves to be dismissed and is accordingly dismissed. MAs, if any, are disposed of in similar manner. However, there will be no order as to costs.