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Judgment
Hon’ble Dr. Anand S. Khati, Member (A)
By way of the present O.A. the applicant has prayed for the following reliefs:-
“(i)To grant promotion to the applicants from Junior Time Scale (JTs) in 7th CPC with retrospective effect from 10.05.2016 that is the date on which the juniors to the applicants of ESE-2010 batch got promoted including pay and arrears.
(ii)To restore original seniority of applicants as on 01.01.2016 as fixed by Central Water Commission vide its corrigendum No. 15/01/2015-Estt.III/3089 dated 14.10.2016.
(iii)To consider the service conditions (experience, eligibility & residency of applicants at par with their juniors of ESE- in all future promotions, external employments and any other likely provisions ESE-2010 in all future promotions, external employments and to extend all other likely benefits.”
Highlighting the facts of the case, learned counsel for the applicants submitted that the applicants, who were selected through the Reserve List of ESE-2010 and subsequently appointed to the Central Water Engineering Services in August and September 2015, were wrongly denied promotion to the Senior Time Scale (STS) along with their immediate juniors, who were promoted on 10.05.2016.
Learned counsel contended that, upon representations by the applicants, the respondents themselves corrected their seniority in the Junior Time Scale vide corrigendum dated 14.10.2016, placing them above their respective juniors; however, despite repeated representations and the applicants’ subsequent clearance of probation, they were denied retrospective promotion and were promoted only on 29.06.2018 along with officers of the ESE-2012 and ESE-2013 batches.
Learned counsel for the applicants contended that the delay in applicant’s appointment and clearance of probation was attributable to the respondents’ administrative actions and that they cannot be penalised for the same by denying them their rightful seniority and consequential benefits.
Aggrieved by the rejection of their representations and their placement below their juniors in the final seniority list of STS officers as on 01.01.2019, the applicants have filed the present OA seeking restoration of their rightful seniority and notional promotion to STS with effect from 10.05.2016, along with consequential benefits.
Learned counsel for the applicants contended that the respondents' failure to timely operate the Reserve List and issue offers of appointment against ESE-2010 vacancies resulted in an unjustified delay in the applicants' appointment and subsequent promotion. It was argued that the applicants cannot be penalised for administrative delays attributable to the respondents, particularly when their seniority was subsequently corrected and their immediate juniors had already been promoted to STS on 10.05.2016.
Relying upon the judgment in Govt. of NCT of Delhi & Ors. v. Rakesh Beniwal & Ors., W.P. (C) No. 7423/2013, and the settled principle that no person can take advantage of their own wrong, learned counsel submits that the impugned action is arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution.
Learned counsel further placed reliance upon the decision rendered by the Hon’ble High Court of Delhi in Jeewraj Singh Shekawat vs. UOI and ors. (W.P.(C) No. 9018/2022. Relevant paras of which, read as under:
“24.The controversy in the present case started when the petitioner was sent on deputation abroad with effect from 21.06.2001. He was released by his borrowing organisation only on 01.05.2007. In the meantime, his batchmates were promoted to the rank of Assistant Commandant with effect from 17.08.2004. The petitioner could not be promoted as he could not undergo SICC SL. No. 65 along with his batchmates having not been relieved by his borrowing department.
25.The respondent acted as a model employer and protected the chance of the petitioner at the seniority for promotion to the rank of Assistant Commandant, vide Orders dated 15.10.2007 and 12.11.2007. On his repatriation to his parent organisation, the petitioner cleared the promotional course SICC SL.No. 79, and vide Signal dated 23.10.2009, was promoted to the rank of Assistant Commandant. The seniority of the petitioner was re-fixed above his immediate junior- Shri Ajay Kumar vide Order dated 22.09.2011.
26.For the rank of Deputy Commandant also, though Shri Ajay Kumar had already been promoted to the post of Deputy Commandant in the year 2011 itself, when the petitioner was finally promoted to the said rank vide Signal dated 21.08.2012, vide Order dated 14.08.2013, his seniority was reassigned by placing him above his immediate junior- Shri Ajay Kumar.
27.From the above, it would be evident that the respondents themselves had recognised that it was not due to the fault of the petitioner that the petitioner could not earlier be promoted to the rank of Assistant Commandant and later to the rank of Deputy Commandant along with his batchmates. It was due to circumstances beyond his control, that is, for him not being relieved by his borrowing department, that he could not obtain these ranks along with his batchmates.
28.Unfortunately, the respondents for the rank of 2-I/C, however, have not adopted a similar benevolent attitude towards the petitioner. They have acted strictly in accordance with the Rules, which require 10 years Group 'A' service and the residency period of 5 years, for depriving the said rank to the petitioner along with his batchmates. The petitioner could not complete the above said eligibility period along with his batchmates only for the reasons which have already been recognised by the respondents to be beyond his control and for which the respondents themselves have given the benefit of retrospective seniority to the petitioner while promoting him to the rank of Assistant Commandant and the Deputy Commandant. In our view, therefore, the denial of retrospective seniority to the petitioner in the rank of 2-I/C along with his batchmates and above his immediate junior in the said rank, cannot be sustained.
29.Similar is our opinion on the denial of NFFU to the petitioner along with his batchmates.
30.In support of our above conclusion, we place reliance on the Judgment of our Court in Jay Pratap Singh v. Union of India & Ors., 2015 SCC OnLine Del 7276, wherein, this Court was confronted with a situation where the petitioner therein was not found eligible to be kept in the zone of consideration for promotion to the post of Inspector as he had not rendered 2 years service in a duty battalion and resultantly his juniors were promoted to the said post. This Court, placing reliance on the earlier Judgment in Ashok Kumar v. Union of India & Ors., 2009 SCC OnLine Del 3407, held as under:-
"11.Relevant would it be to note that way back on October 27, 2009, deciding a. bunch of writ petitions; lead matter being W.P.(C)No.21900/2005, Ashok Kumar Vs. Union of India & Drs., a Division Bench of this court held that where the department is at fault in not letting a person complete two years duty in a duty battalion, non-fulfillment of the eligibility condition for promotion requiring two years service in a duty battalion cannot be held against the person concerned. xxxxx
25.Suffice it to state that as already noted by us in the order dated March 07, 2011 as well as in the decision in Ashok Kumar's case (supra) the petitioner had no option but to serve wherever he was required to be posted.
Moreover, force personnel have no say in the matter of posting and therefore, it is the department who is at fault in not letting a person complete two years duty in a duty battalion, despite the same being a pre-condition of mandatory field service for grant of promotion. Non-fulfillment of the eligibility condition for promotion requiring two years service in a duty battalion cannot be held against a person concerned as the same is the sole prerogative of the department. As regards the power of relaxation to be exercised by the Ministry of Home Affairs, as per the letter dated July 04, 2012, the perusal of the said letter would reveal that services rendered in NSG/SPGINDRF would be treated as service rendered in a field unit for the purpose of promotion. In the instant case, the petitioner was posted on deputation with the SPG at the time when the batch-mates and persons junior to the petitioner earned promotion as Assistant Commandant by virtue of the order dated November 03, 2010. Therefore, the respondents cannot deny the benefit of back dated promotion to the petitioner on the ground that the same was given to him only upon completion of two years service in duty battalion. Vide impugned order dated June 11,2013, it is observed that in light of the directions given by this Court that the petitioner, if promoted as Assistant Commander, shall be entitled to all consequential benefits, except actual wages and for this very reason he would not be entitled to refixation of pay at par with his juniors from a retrospective date.
26.The same reveals a total non-application of mind in as much as the import of the order dated March 07, 2011 in denying actual wages to the petitioner was on the principle of 'no work no pay' and the same could not have been treated by the respondents as a ground to reject the notional pay fixation of the petitioner. It is not a case where the petitioner has claimed back wages or arrears of pay, in which case the stand taken by the respondents may have been justified. As a natural consequence of being considered and subsequently being found fit for promotion, the petitioner would undoubtedly be entitled for promotion form the date on which his juniors were promoted, i.e. from November 03, 2010 as well as notional fixation of pay in the rank of Assistant Commandant from the said date."
31.The above Judgment was followed by this Court in Dharam Narayan Borana v. Union of India & Ors., 2019 SCC OnLine Del 6406, by observing as under:-
"18.The Court finds that the Respondents were not justified in their interpretation of the judgment dated 7th March 2011 of this Court. In that judgment, it was made clear that the Petitioner would be entitled "to all consequential benefits of his seniority as Inspector." This means that after having fixed seniority of the Petitioner as Inspector on par with his juniors, the Respondents had to, on the same logic, consider his promotion as AC from the very date that his juniors were so promoted. In other words, having accepted the judgment of this Court dated 7th March 2011, and having implemented it by restoring the Petitioner's seniority as Inspector from the date his juniors were promoted, the Respondents were required to consider the case of the Petitioner for promotion as AC on that basis and if found fit, to notionally fix his seniority as AC from the same date when his juniors were promoted as AC. Otherwise at every stage the Petitioner would be lagging behind unfairly and his juniors would be stealing a march on him despite his having succeeded before this Court by way of the judgment dated 7th March 2011. That certainly was not the consequence envisaged by this Court. It is for this reason that this Court made it clear that the Petitioner would be entitled to "all consequential benefits of his seniority as Inspector."
32.In its Order dated 25.09.2019 in W.P.(C) 9588/2019 titled Sudhindra Kumar Singh v. Union of India & Ors., this Court was again confronted with a factual position where the petitioner therein had not been promoted to the rank of 2-I/C, having been declared unfit on account of DGs displeasure. Pursuant to an order passed by the High Court of Kerala, the petitioner was considered for the said post and maintained his seniority above his immediate junior. However, in the meantime, his immediate junior had been promoted to the rank of Commandant. The petitioner therein was denied this promotion with a retrospective effect on the ground that he had not completed the 2 years residency service in the rank of 2-I/C. MHA also had refused to exercise its power of relaxation, as is the case in the present petition as well. This Court, however, held that as the initial promotion to the post of 2-I/C had been denied to the petitioner therein on account of a mistake committed by the respondent, the mistake ought to have been corrected even for the other DPCs where the petitioner ought to have been considered for promotion. We may quote from the Judgment as under:-
"16.It is, therefore, not correct for the MHA to take the stand that there was no Court direction for further promotion. It is obvious that once the Petitioner has been directed to be promoted to 2-IC "untrammelled by the DG's displeasure" and "to issue revised orders granting promotion to the Petitioner with effect from the date of promotion of his irnmediate junior" such direction would include not only promotion to the rank of 2-IC but further promotions as well. There was no need to repeatedly go to the Court for each promotion.
17.Once it is acknowledged that it is on account of the mistake committed by the Respondents, in treating the DG's displeasure as a bar to consider the Petitioner's case for promotion at the relevant time, such mistake ought to be corrected by the Respondents with reference to such DPCs where the Petitioner ought to have been considered for promotion. It is unfortunate that the Petitioner has had to file the present writ petition again been forced to litigate to get the full benefit of the above judgment of the Kerala High Court in his favour."
33.Recently, this Court in Rakesh Kumar (supra) (wherein one of us, namely, Justice Shalinder Kaur, was a part of the Bench), again on being confronted with similar facts, held that once the petitioner therein had been placed in his rightful position in the seniority list of Assistant Sub-Inspector, the respondent by taking his actual date of joining service could not deny his promotion.
34.In view of the above facts and the position in law, we allow this petition by directing the respondents to grant retrospective seniority to the petitioner to the post of 2-I/C from the date on which his immediate junior Shri Ajay Kumar was granted such promotion, and to place him immediately above Shri Ajay Kumar in the seniority list in the rank of 2-I/C. The petitioner, however, while being granted all consequential benefits, including pay fixation, etc., will not be given the benefit of enhanced wages for the period he did not actually serve in the rank of 2-I/C. As far as NFFU is concerned, the petitioner shall again be granted the said benefit from 01.04.2017, that is, the date his immediate junior, that is, Shri Ajay Kumar has been granted the same.
35.With the above directions, the petition is disposed of. ”
Per contra, learned counsel for the respondents vehemently opposed the OA and submitted that the applicants were appointed from the Reserve List of ESE-2010 and not from the original select list. It was contended that the delay in their appointment was not attributable to the respondents, as the offers of appointment were issued after completion of the prescribed formalities, and the applicants themselves sought extensions of joining time.
Learned counsel further submitted that completion of the mandatory two-year probation period was a prerequisite for promotion from Junior Time Scale (JTS) to Senior Time Scale (STS), which the applicants had not fulfilled when their juniors were promoted in 2016 and 2017. Accordingly, they were promoted on 29.06.2018 upon fulfilling the eligibility conditions, and their seniority in STS was fixed in accordance with the DoPT instructions dated 11.11.2010.
Learned counsel further submitted that the applicants' representations were duly examined in consultation with the concerned Ministry and DoPT, but their request for restoration of seniority was not acceded to, being contrary to the applicable rules.
Denying any arbitrariness, discrimination or violation of Articles 14 and 16 of the Constitution, learned counsel submitted that the applicants have no vested right to retrospective promotion or relaxation of the prescribed probation period and, therefore, the OA deserves to be dismissed.
Learned counsel for the applicants further submitted that candidates of ESE-2010 were allocated to various departments and issued appointment letters during December 2011 to February 2012, whereas the applicants received their offers only in May 2015. It was contended that CWC, vide its letter dated 12.11.2018, had prima facie found merit in the applicants’ representations, but their request was rejected without assigning specific reasons. The learned counsel for the applicants further contend that the DoPT O.M. dated 11.11.2010 relied upon by the respondents is not applicable to their case and that their representations ought to have been considered in light of the DoPT O.M. dated 10.06.2015 and the judgment in Govt. of NCT of Delhi v. Rakesh Beniwal (supra).\
Heard learned counsel for the respective parties and perused the pleadings available on record.
6. ANALYSIS :
The controversy arising for consideration in the present O.A. is whether the applicants, who were appointed to the Central Water Engineering Services from the reserve list of ESE-2010 in August and September 2015, respectively, are entitled to claim notional promotion to the Senior Time Scale (STS) with effect from 10.05.2016, the date on which certain officers of ESE-2010, stated to be junior to them, were promoted, together with consequential benefits.
The applicants have contended that although they belonged to ESE-2010, they were appointed considerably later than the candidates included in the original select list. According to them, the delay in operating the reserve list and issuing appointment offers resulted in their joining service only in August and September 2015, thereby placing them at a disadvantage in relation to their batchmates. They further submit that their seniority in JTS was subsequently corrected by the respondents vide corrigendum dated 14.10.2016, placing them above their respective juniors, yet they were not extended the benefit of promotion from the date on which such juniors were promoted. The applicants were ultimately promoted to STS with effect from 29.06.2018, after completion of probation, and contend that their subsequent promotion does not adequately redress the prejudice allegedly caused by the delay in their appointment.
The respondents have opposed the claim primarily on the ground that the applicants were appointed from the reserve list and had not completed the prescribed two-year probation period on 10.05.2016. It is their case that the applicants became eligible for promotion only after fulfilling the applicable conditions and were accordingly promoted on 29.06.2018. The respondents have also submitted that the delay in appointment was not attributable to them and that the applicants had themselves sought extensions of joining time. They maintain the stand that the applicants’ representations were duly examined in consultation with the concerned authorities and rejected in accordance with the applicable service rules and instructions.
It is evident from the rival submissions that the issue is not confined merely to the applicants’ position in the JTS seniority list. The correction of seniority by the corrigendum dated 14.10.2016 is a relevant circumstance, but seniority and eligibility for promotion are distinct matters. At the same time, the fact that the applicants were appointed from the reserve list and had not completed probation on the date claimed cannot, without examining the circumstances leading to their appointment and the applicable rules, be treated as conclusively determining the controversy. The material question is whether the applicants’ delayed appointment and the consequent non-completion of probation by the relevant date were attributable to circumstances beyond their control and, if so, what legal consequences may follow under the governing rules and instructions.
In this regard, the applicants have relied upon the judgment of the Hon’ble High Court of Delhi in Jeewraj Singh Shekhawat v. Union of India & Ors., (supra), wherein the Court considered the claim of an employee who could not fulfil the prescribed qualifying service within the relevant period owing to circumstances beyond his control. The Court emphasised that where the department itself was responsible for the circumstances preventing an employee from meeting a qualifying condition, the resulting disadvantage in promotion and seniority could not be allowed to operate mechanically against the employee. The judgment, therefore, underscores the need to examine whether the shortfall in eligibility is attributable to the employee or to circumstances for which the administration bears responsibility.
The principle relied upon by the applicants is relevant to the issue raised in the present O.A. However, the factual circumstances of Jeewraj Singh Shekhawat (supra) arose in the context of deputation and the inability of the petitioner to complete the prescribed service requirement in the relevant circumstances. The applicability of that principle to the present case, which concerns appointment from a reserve list and completion of probation, must accordingly be assessed with reference to the governing service rules and the facts established on record. The judgment cannot be construed as dispensing, in every case, with a mandatory eligibility condition or as conferring an automatic right to retrospective promotion merely because an employee belongs to the same examination batch as the officers already promoted.
The applicants have also relied upon the judgment of the Hon’ble High Court of Delhi in Government of NCT of Delhi & Ors. v. Rakesh Beniwal & Ors., (supra), and the DoPT O.M. dated 10.06.2015. Their contention is that an employee should not be deprived of a service benefit on account of an administrative delay for which the employee is not responsible. The respondents, however, have relied upon the applicable probation requirement and the DoPT instructions dated 11.11.2010. The precise applicability and effect of these instructions, in the context of the applicants’ appointment from the reserve list and their claim for notional promotion, require specific consideration. It is necessary to determine whether the circumstances of the applicants’ case fall within the principle relied upon by them and whether the relevant rules permit the consequential relief sought.
We also take note of the applicants’ reliance upon the communication dated 12.11.2018, stated to indicate prima facie merit in their representations, and the subsequent rejection of their claim communicated on 08.08.2019. The communication expressing a prima facie view does not, by itself, create an enforceable right to retrospective promotion. Nevertheless, the applicants’ contention that the effect of the correction of their JTS seniority, the circumstances surrounding their appointment and the judgments and instructions relied upon by them were not adequately considered calls for examination by the competent authority. The rejection of their claim must address these material aspects and cannot rest merely upon a general reference to non-completion of probation without considering the circumstances in which such non-completion occurred.
We are, therefore, of the view that the applicants’ claim requires a fresh and reasoned examination by the competent authority. Such examination must include the circumstances and timeline of operation of the reserve list and issuance of appointment offers; the effect, if any, of the applicants’ requests for extension of joining time; the correction of their JTS seniority; the applicable conditions governing probation and promotion to STS; and the applicability of the DoPT O.M. dated 10.06.2015 and the principles laid down in Jeewraj Singh Shekhawat (supra) and Rakesh Beniwal (supra). The authority must specifically determine whether any delay attributable to the administration resulted in the applicants being unable to fulfil the relevant eligibility conditions alongside their immediate juniors, and whether the governing rules permit the grant of notional promotion or any other consequential service benefit.
In view of the above, we consider it appropriate to remit the matter to the competent authority for fresh consideration rather than express a final conclusion on the applicants’ entitlement to retrospective promotion in the absence of a definitive determination of the aforesaid issues. The competent authority shall consider the matter independently, in accordance with the applicable rules and instructions, and pass a reasoned and speaking order dealing with the material contentions raised by the applicants.
7. CONCLUSION :
In view of the foregoing discussion, the O.A. is disposed of with a direction to the competent authority to reconsider the applicants’ representations seeking notional promotion to STS with effect from 10.05.2016, in the light of the applicable service rules, the DoPT O.M. dated 10.06.2015 relied upon by the applicants, and the principles discussed hereinabove.
The competent authority shall specifically examine the circumstances surrounding the applicants’ appointment from the reserve list, the reasons for the delay in issuance of appointment offers, the effect of the correction of their JTS seniority, and the applicability of the prescribed probation requirement to their claim for notional promotion. The competent authority shall also consider the applicants’ reliance upon the judgments referred to above and the respondents’ contention regarding extensions of joining time. A reasoned and speaking order shall be passed within three months from the date of receipt of a certified copy of this order.
It is clarified that this Tribunal has not expressed any final opinion on the merits of the applicants’ claim for retrospective promotion or consequential monetary benefits. The same shall be determined by the competent authority in accordance with the applicable rules and instructions, upon due consideration of the relevant facts and the principles discussed hereinabove.
The O.A. stands disposed of in the above terms.
Pending M.A.(s), if any, shall stand disposed of. There shall be no order as to costs.