Sat Pal Budhiraja vs Secretary

L. Narasimha Reddy, J

The applicant joined the Central Secretariat Service (CSS) in the year 2003 as a Section Officer (SO). The next higher post is Under Secretary. It is stated that on 05.10.2012 a screening committee was constituted to assess the fitness of SOs for promotion to the grade of Under Secretary on ad hoc basis, and the cases of 438 SOs, who had completed eight years of approved service, were considered. Out of them, 371 SOs, including the applicant, were found fit. However, before any order of ad hoc promotion could be issued to the applicant, he retired from service on 31.10.2012. It is also stated that one Mr. Jasbir Singh who was junior to the applicant as SO, was promoted as Under Secretary on 30.11.2012, and in that view of the matter, he is entitled to be promoted on ad hoc basis.

The applicant further contends that regular promotions to the post of Under Secretary were effected through notification dated 25.07.2014, and those who were found fit, were extended the benefit of retrospective promotion/approved service w.e.f. 01.07.2012, and in that view of the matter, he is entitled to be promoted on notional basis w.e.f. 01.07.2012. He further stated that one Mr. Nirbhay Singh who was junior to him as SO, was extended the benefit w.e.f. 01.07.2012 under the notification dated 04.07.2014.

The Government of India, Department of Personnel & Training (DoP&T) issued office memorandum dated 07.07.2017 pointing out that the benefit extended under the notification dated 04.07.2014 w.e.f. 01.07.2012, was only in respect of "approved service", and instead, in some Ministries regular promotions w.e.f. 01.07.2012 were made, and that the same is irregular and contrary to law.

This OA is filed with a prayer to set aside the office memorandum dated 07.07.2017, and the consequential notification issued on 19.07.2017; and office memorandum dated 29.12.2014. Relief in the form of direction to the respondents to extend the benefit of notional promotion to the applicant as Under Secretary w.e.f. 01.07.2012, together with the consequential benefit of re-determination of his pension, is claimed.

The applicant contends that once the office memorandum dated 04.07.2014 itself mentioned that the approved service shall accrue from 01.07.2012, it needs to be treated for all purposes under the impugned memorandum dated 07.07.2017, and all consequential orders are untenable in law. The applicant has placed reliance upon the judgment of this Tribunal in P. G. George v Union of India & others [OA No.1409/2009 and batch, decided on 22.04.2010], and the judgment of the Delhi High Court in S. Narayanaswamy v Union of India & others [WP(C) No.4699/2012, decided on 19.09.2012 : 194 (2012) DLT 166 (DB)].

The respondents opposed the OA by filing a counter affidavit. According to them, the exercise undertaken in 2012 was only for ad hoc promotions. It is stated that since there was delay in conducting the DPC in 2014 for promotions to the post of Under Secretary, the benefit of approved service was extended w.e.f. 01.07.2012, only for the purpose of protecting the interests of the promoted candidates for the purpose of their further promotion to the post of Deputy Secretary. It is also stated that nowhere in the memorandum dated 04.07.2014, it was mentioned that the Section Officers who retired by that time, would be entitled to be promoted on notional basis. The plea of the applicant that Mr. Nirbhay Singh was promoted w.e.f. 01.07.2012 in pursuance of the notification dated 04.07.2014 is also denied. As regards the judgment in P.G. George"s case, it is stated that the benefit of notional promotion was extended to the applicant therein, on par with his junior, and no such eventuality has taken place in the instant case.

On 20.12.2016, this OA was allowed directing that the applicant shall be promoted to the post of Under Secretary on ad hoc basis w.e.f. 30.10.2012, the date on which 257 candidates were appointed on ad hoc basis, despite the fact that the applicant retired one day after 30.10.2012, i.e., 31.10.2012. The respondents filed WP(C) No.3113/2017. The writ petition was allowed on 11.09.2017, and the order passed by the Tribunal was set aside. It was held that the applicant was not entitled to be promoted on ad hoc basis. However, the case was remanded for consideration of the case of the applicant for notional pay fixation in the grade of Under Secretary, w.e.f. 01.07.2012.

We heard Shri Deepak Verma, learned counsel for the applicant, and Shri Y. P. Singh, learned counsel for the respondents.

For one reason or the other, the DPC for promotion to the post of Under Secretary in the CSS was not held till the year 2014. Obviously, with a view to meet the exigencies of service, a screening committee was constituted in the year 2012 for the purpose of making ad hoc arrangements. The name of the applicant figured in the list so prepared. That, however, is not referable to any statutory provision. At any rate, by the time his turn for being promoted on ad hoc basis to the post of Under Secretary reached, the applicant retired.

Regular promotions were effected only in the year 2014 through a notification dated 04.07.2014. Here itself, it needs to be noted that for promotion to the next higher post of Deputy Secretary, an Under Secretary must have five years of regular service to his credit. Since the delay in conducting the DPC was to act detrimental to the successful candidates, in the form of reduction in their regular service, for promotion to the next higher post, the Government incorporated a clause in the notification dated 04.07.2014, to the effect that the successful candidates shall be entitled to reckon their "approved service" from 01.07.2012. The expression "approved service" becomes relevant, only in the context of further promotion, and for no other purpose. The case of the applicant could not be considered in the year 2014 for regular promotion, since he retired on 31.10.2012 itself.

Now the applicant rests his entire claim on the order passed in P. G. George"s case, by stating that one Mr. Nirbhay Singh who was junior to him, was promoted w.e.f. 01.07.2012. Firstly, it is not a fact that Nirbhay Singh was appointed w.e.f. 01.07.2012. Though there was some uncertainty in this behalf, the respondents categorically stated that not only Nirbhay singh, but all other officers, who were covered by the notification dated 04.07.2014 were promoted with effect from the date of notification, and no other date. The applicant is not able to place any material before us to demonstrate that either Nirbhay Singh or any other officer who was junior to him, was promoted with effect from any date, anterior to 31.10.2012 (the date on which the applicant retired). In certain Ministries, orders of promotions were issued w.e.f. 01.07.2012, all of them were set at naught through the impugned memorandum dated 07.07.2017, and the consequential orders. When the only context for referring to the date 01.07.2012 was as regards the "approved service", it is just un-understandable as to how the regular or notional promotion can be reckoned from that date.

In P. G. George"s case, the question was as to whether an officer who retired from service is entitled to be extended the benefit of notional promotion, in case his junior was promoted with effect from any date, anterior to the retirement of such officer. Relevant portion of the judgment reads as under:

"8. It is thus very clear that:

(i) there is no rule that promotion should be given from the date of creation of the promotional post;

(ii) if promotions are effected prospectively from the date of issue of the order of promotion, retired employees would not be eligible for promotion retrospectively; and

(iii) if promotion is granted retrospectively and a person junior to the retired employee has been promoted from the date when the retired person was in service and if the retired person has been found fit by the DPC, such retired person would be entitled to promotion retrospectively on notional basis from the date his immediate junior has been promoted. This is clear from the judgment in Rajendra Roy (supra) in paragraph 16, quoted above. Moreover, it has further been clarified by the Honourable High Court in Rajendra Roy (supra) itself in paragraph 25 of the judgment, which has been quoted above (emphasis supplied)."

Two conditions become relevant for extension of such benefit. The first is that the officer concerned should have been declared or found fit by the DPC. The second is that if officer "B" who was junior to officer "A", was promoted with effect from any date anterior to the one on which officer "A" retired, then he, i.e., "A" would be entitled for notional promotion and consequential benefits. Such is not the case here. Firstly, the applicant herein was not declared fit by the DPC, and secondly, not a single Section Officer, junior to the applicant, was promoted to the post of Under Secretary, from any date anterior to 31.10.2012. If one takes into account the very principle enunciated in P. G. George"s case, the promotions are to be effected prospectively from the date of issue of order of promotion, and retired employees would not be eligible for promotion retrospectively. To the same effect is the judgment of the Delhi High Court in S. Narayanaswamy"s case.

We do not find any merit in the OA. It is accordingly dismissed. There shall be no order as to costs.