The cornucopia of case law above noted brings out the
position :-
(i) Service Jurisprudence does not recognize retrospective promotion
i.e. a promotion from a back date.
(ii) If there exists a rule authorizing the Executive to accord
promotion from a retrospective date, a decision to grant promotion
from a retrospective date would be valid because of a power existing
to do so.
(iii) Since mala fides taints any exercise of power or an act done,
requiring the person wronged to be placed in the position the person
would find himself but for the mala fide and tainted exercise of power
or the act, promotion from a retrospective date can be granted if delay
in promotion is found attributable to a mala fide act i.e. deliberately
delaying holding DPC, depriving eligible candidates the right to be
promoted causing prejudice.
(iv) If due to administrative reasons DPC cannot be held in a year and
there is no taint of malice, no retrospective promotion can be made.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Pronounced on: April 12, 2013
W.P.(C) 8102/2012
UOI & ANR. .
versus
KL TANEJA AND ANR
CORAM:
HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J.
1. The respondents of the four captioned petitions were
working in the office of the Provident Fund Commissioner as GroupA
officers being appointed as direct recruits to the post of Assistant
Provident Fund Commissioner, earning promotion to the post of
Regional Provident Fund Commissioner Grade-II, all of them became
eligible for promotion to the post of Regional Provident Fund
Commissioner Grade-I. Being promoted as Regional Provident Fund
Commissioner Grade-II in the year 1999 all acquired eligibility for
being promoted as Regional Provident Fund Commissioner Grade-I in
the year 2004 since the eligibility was 5 years service rendered in the
feeder cadre. Persons senior to them and achieving the bench marks,
respondents could not be promoted when the DPC met on May 27,
2005, and they have no grievance on said score. W.P.(C) Nos.8102/2012, 20/2013, 99/2013 & 104/2013 Page 3 of 12
2. In the years 2006-07, 2007-08 and 2008-09, 12, 6 and 25
vacancies respectively, existed in the post of Regional Provident Fund
Commissioner Grade-I, but no DPC was held in the years 2006, 2007
and 2008. A DPC was held on May 21, 2009, which considered the
names of the eligible candidates and recommended a year-wise panel.
Regular promotions were made with effect from May 21, 2009. In the
interregnum, the respondents and a few other persons were granted
ad-hoc promotions with benefit of pay scale in the promotional post
3. The grievance of the respondents was that in the absence
of a regular promotion from the date when the vacancy became due,
to which they were ultimately promoted, their right to further
promotion to the post of Additional Central Provident Fund
Commissioner would be adversely affected because of the
requirement of qualifying service in the feeder cadre i.e. the post of
Regional Provident Fund Commissioner Grade-I, as also their
seniority; and by which we understand that there are direct
recruitments made to the post of Regional Provident Fund
Commissioner Grade-I, for if not, we see no issue of seniority being
adversely affected depending on how the seniority list is casted.
4. With reference to the decisions reported as 1987 (4) SCC
566 K.Madhavan vs.UOI, 1997 (9) SCC 287 UOI & Ors. vs.
N.R.Banerjee & Ors. and 2004 (1) SCC 245 P.N.Premchandaran vs.
State of Kerala & Ors. as also a decision of the Tribunal, view taken
by the Tribunal is that the respondents would be entitled to notional
promotions from the date vacancy against which they were promoted
fell due for the reason the respondents before the Tribunal i.e. the
Union of India and the Provident Fund Commissioner could not W.P.(C) Nos.8102/2012, 20/2013, 99/2013 & 104/2013 Page 4 of 12
furnish any justification for not holding DPCs on time. Though not
expressly noted by the Tribunal, we may state that in the reply filed to
the Original Applications, the petitioners simply said that due to
unavoidable reasons and administrative reasons beyond the control of
the petitioners, DPC could not meet. What were the facts on basis
whereof said stand was taken were never pleaded.
5. We need to speak a word.
6. That I could not do something required to be done by me
because of an unavoidable reason or a reason beyond my control, is a
conclusion stated. What was the fact which constituted the
unavoidable reason or a reason beyond my control has to be stated for
somebody to accept a justification. The rules of pleadings guide us
that if an inference from a fact is pleaded as a justification, the fact
has to be pleaded and not the inference alone.
7. As we would proceed to note the law on the subject, we
would find that to the normal rule of law that nobody can be promoted
with a retrospective effect except the exception is that when there
exist facts which necessitates so or there is a rule which permits so.
Thus, the facts which necessitated the exception to be applied have to
be specifically pleaded.
8. In the decision reported as 1987 (4) SCC 566
K.Madhavan & Anr. vs.UOI & Ors., the Supreme Court held that
nobody can claim a right for appointment to a post as a matter of
right. It was held that as a rule, retrospective appointment or
promotion to a post should not be resorted to unless on a sound
reasoning and foundation it becomes necessary to sparingly do so.
With respect to scheduled DPCs, only if they were cancelled mala W.P.(C) Nos.8102/2012, 20/2013, 99/2013 & 104/2013 Page 5 of 12
fide, arbitrarily or without any reasonable justification to the prejudice
of an employee, could the Government in such a case, to undo the
injustice caused, grant promotion from a retrospective date.
9. In the decision reported as 1989 Supp (2) SCC 625
Union of India & Ors. vs. K.K.Vadera & Ors. the protagonists were
the respondents, holding the post of Junior Scientific Officers (Group
'B' posts) in the Defence Research & Development Service. They had
earned promotion to the said post as and when a post fell vacant. The
promotion order stipulated that they would be promoted to the posts
of Scientists 'B' with effect from October 16, 1985 or from the date
they would actually assume charge of the post to which they were
promoted. The respondents filed an application before the Central
Administrative Tribunal, Allahabad, claiming that they should have
been promoted to the post of Scientists 'B' with effect from July 1,
1984. The Tribunal rejected the prayer of the respondents that their
promotions should have been made with effect from July 1, 1984 but
directed that their promotions should be with effect from the date on
which the promotional posts were created. The Supreme Court was
deciding the Appeal against the view taken by the Tribunal. Allowing
the Appeal the Supreme Court observed in para 5 as under:-
“5. ………..We do not know of any law or any rule under
which a promotion is to be effective from the date of
creation of the promotional post. After a post falls vacant
for any reason whatsoever, a promotion to that post
should be from the date the promotion is granted and not
from the date on which such post fall vacant. In the same
way when additional posts are created, promotions to
those posts can be granted only after the Assessment
Board has met and made its recommendations for
promotions being granted.”W.P.(C) Nos.8102/2012, 20/2013, 99/2013 & 104/2013 Page 6 of 12
10. Relevant would it be to note that as per the decision there
was no rule which was cited before the Court as per which promotion
to the post had to be with retrospective effect i.e. from the date the
post fell vacant. The observations of the Supreme Court that ‘We do
not know of any law’ would mean that service jurisprudence does not
jurisprudentially recognize retrospective promotions. The decision
would therefore mean that unless a specific rule exists evidencing to
the contrary, promotions take effect from the date the person is
actually promoted and not retrospectively.
11. In the decision reported as (1998) 7 SCC 44 Baij Nath
Sharma vs. Hon’ble Rajasthan High Court At Jodhpur & Anr., relying
upon the law declared in K.K.Vadera’s case (supra), since no rule
was shown which could justify a retrospective promotion, and no
mala fides pleaded or proved in delaying promotions, the Supreme
Court held that the appellant, a Member of the Rajasthan Judicial
Service, could not be promoted from the date a vacancy accrued in the
Rajasthan Higher Judicial Service against which vacancy he was
ultimately promoted.
12. The same view was reiterated in the decisions reported
as AIR 2004 SC 3460 Sanjay K.Sinha & Ors. vs. State of Bihar &
Ors., 2006 (13) SCALE 246 State of Uttaranchal & Ors. Vs.Dinesh
Kr.Sharma and 2008 (14 ) SCC 29 Nirmal Chandra Sinha vs. UOI &
Ors. The last decision i.e. in Nirmal Chandra Sinha’s case (supra)
referred to certain observations made by the Supreme Court in the
decision reported as 1997 (8) SCC 89 UOI vs. B.S.Aggarwal which
tends to show to the contrary, as being made on the special W.P.(C) Nos.8102/2012, 20/2013, 99/2013 & 104/2013 Page 7 of 12
circumstances of that case and on humanitarian consideration (refer
para 9 of the decision in Nirmal Chandra’s case.)
13. In the decision reported as (2007) 1 SCC 683 State of
Uttaranchal & Anr. vs. Dinesh kumar Sharma it was observed:-
“Respondent was working as a Subordinate Agriculture
Services Group-I. Subsequently, he became eligible for
promotion. A promotional post became vacant and
thereafter, substantive appointment of Respondent to said
post was made. Respondent claimed seniority and
consequential benefit from date when promotional post
became vacant. State Government rejected claim made
by Respondent. On writ, Division Bench of High Court
directed state to reconsider case of Respondent. Hence
the appeal was filed which was allowed and it was held
that under Rule 8 of Uttar Pradesh Government Servants
Seniority Rules, 1991 a person appointed on promotion
shall not get seniority of any earlier year but shall get
seniority of year in which his/her appointment is made.
Hence respondent was not entitled to seniority from date
when promotional post became vacant as no
retrospective effect could be given to order of
appointment order under the Rules.”
14. The decision is in line with the reasoning that unless a
rule to the contrary exists, promotions cannot be made or directed to
be made retrospectively.
15. With reference to the decisions where benefit of
promotion from a retrospective date was accorded, we find an
unreported decision of the Supreme Court disposing of Civil Appeal
No.1655/1997 titled Union of India & Anr. vs. Santhanakrishnan &
Ors.. The facts were that there was delay in holding the examination
to fill up posts which had fallen vacant in the 33.33% quota known as
Limited Departmental Competitive Examination under Rule 2(iii) of W.P.(C) Nos.8102/2012, 20/2013, 99/2013 & 104/2013 Page 8 of 12
the Relevant Rules. Whereas vacancies in the remaining 66.66%
quota were being filled up in the year said vacancies arose, this was
not done with respect to posts falling vacant in the 33.33% quota. The
question involved was the computation of required minimum period
of service among the class of promotees whose results were published
in May 1985 whereas the actual promotions were effected in June
1985, for further promotion as Senior Assistant Engineer. The
Tribunal gave due leavage for completing the process of examination
and fixed the notional date of promotion as 12.9.1982. Supreme
Court observed that view taken by the Tribunal was right keeping in
view that by virtue of such notional date of promotion, the department
was not put to any monetary loss and the promotees concerned were
not entitled to any arrears of salary from that date, though for other
purposes, including seniority it was ordered to be counted.
16. The decision is purely on facts and from the
observations: ‘After hearing the learned counsel appearing on either
side, we are of the view that de-hors the niceties of the legal issues
involved as also the interpretation of the relevant rules, substantial
justice seems to have been rendered by attempting to resolve an
unprecedented and one time problem which seems to have cropped
up’ it is but apparent that the Supreme Court had in mind ‘substantive
justice’ and thus the decision can be traced to the power of the
Supreme Court under Article 142 of the Constitution of India.
17. In the decision reported as AIR 2004 SC 255 P.N
Premachandran vs. The State of Kerala & Ors., the private
respondents before the Supreme Court could not be promoted on
Regular Basis as Assistant Directors in time on account of W.P.(C) Nos.8102/2012, 20/2013, 99/2013 & 104/2013 Page 9 of 12
administrative lapses; however they were granted temporary
promotions; DPC were not convened from the year 1964 to 1990 and
hence the State of Kerala took a conscious decision that those who
had been acting in a higher post for a long time, although on a
temporary basis, but were qualified at the time when they were so
promoted and were subsequently found to be eligible by the
Departmental Promotion Committee to be promoted at a later date,
should be granted benefit of promotion with retrospective effect. In
these circumstances noting a residual provision conferring power
upon the State Government being Rule 39 of Kerala State &
Subordinate Services Rules 1958, the Supreme Court upheld the grant
of promotion to the private respondents with effect from a
retrospective date.
18. The decision is in conformity with the consistent view
taken by the Supreme Court that where an ad-hoc, temporary or stopgap
promotion which is not fortuitous is followed by regular
promotion and on the date of ad-hoc, temporary or stop-gap
promotion the person was eligible for regular promotion and there
existed a vacancy in the quota applicable and it was followed by a
regular promotion, for purposes of service benefits past service could
be reckoned as a regular service if a Rule so permitted.
19. In the decision reported as 1995 (4) SCC 246 Vinod
Kumar Sangal vs.UOI& Ors. due to reorganization of the cadre, DPC
could not meet from the year 1979 to 1984. Bunching all the
vacancies DPC was held in the year 1985, which was obviously
wrong. The Supreme Court directed DPC to be convened with
reference to vacancies accruing each year. It was directed that benefit W.P.(C) Nos.8102/2012, 20/2013, 99/2013 & 104/2013 Page 10 of 12
of retrospective promotion would be given. But we find no discussion
on the legal issue whether as a matter of rule retrospective promotion
can be effected, and it appears that the consequential directions found
a mention and a place in the decision not as a result of a conscious
view taken pursuant to a debate.
20. In a latest decision reported as 2010 (4) SCC 290 UOI &
Anr. vs. Hemraj Singh Chauhan & Ors., the facts were that the
respondents, Members of the State Civil Service, were expecting
promotion to the Indian Administrative Service under the promotion
quota requiring State Cadre review to be done well in time as per Rule
4(2) of the Indian Administrative Service (Cadre) Rules 1954 and the
panel to last only for 60 days. There was an unexplainable delay
causing severe prejudice to the respondents. Expressly invoking its
power under Article 142 of the Constitution of India benefit of
retrospective promotion was granted.
21. The cornucopia of case law above noted brings out the
position :-
(i) Service Jurisprudence does not recognize retrospective promotion
i.e. a promotion from a back date.
(ii) If there exists a rule authorizing the Executive to accord
promotion from a retrospective date, a decision to grant promotion
from a retrospective date would be valid because of a power existing
to do so.
(iii) Since mala fides taints any exercise of power or an act done,
requiring the person wronged to be placed in the position the person
would find himself but for the mala fide and tainted exercise of power
or the act, promotion from a retrospective date can be granted if delay W.P.(C) Nos.8102/2012, 20/2013, 99/2013 & 104/2013 Page 11 of 12
in promotion is found attributable to a mala fide act i.e. deliberately
delaying holding DPC, depriving eligible candidates the right to be
promoted causing prejudice.
(iv) If due to administrative reasons DPC cannot be held in a year and
there is no taint of malice, no retrospective promotion can be made.
22. The Tribunal has not kept afore-noted distinctions in
mind and thus it has to be held that the impugned decision dated
March 01, 2012 is required to be set aside, but before passing formal
orders, we need to note something more.
23. The respondents have been functioning on ad hoc basis
as Regional Provident Fund Commissioner Grade-I from the date
vacancies fell due and have been receiving salary in the grade
applicable. In other words all of them were promoted on ad hoc basis
without a DPC being convened. It is not in dispute that the ad hoc
promotion was with respect to vacancies available in the year in
which they were promoted. It is a case of ad hoc promotion being
followed by confirmation/regular promotion. There is no financial
implication of the impugned decision which grants regular
retrospective promotion for the reason the respondents, being
promoted on ad hoc basis were being paid salary in the higher grade.
They earned annual increments. The only effect of the impugned
decision would be to affect their seniority, which obviously would be
with respect to direct recruits for the reason within promotees, if
everybody’s promotion is delayed, it makes no difference for
purposes of seniority. On the concept of further right to be promoted
with reference to service in the grade, it all depends upon the language
of the service rule. Whether it contemplates regular service in the W.P.(C) Nos.8102/2012, 20/2013, 99/2013 & 104/2013 Page 12 of 12
grade, post regular appointment/regular promotion? Or it envisages
continuous service in the grade? The issue has to be decided in light
of the service rules.
24. Making it clear that an inter se issue of seniority between
direct recruits and promotees cannot be resolved by a judicial fora
without impleading persons likely to be affected, and with reference
to the service to be rendered for further promotion in the context of
eligibility, issue has to be decided on the basis of the language of the
applicable rule, we dispose of the writ petition setting aside the
impugned order dated March 01, 2012 but clarify that this does not
mean that we have held respondents not entitled to seniority from the
date they were promoted on ad hoc basis nor have we held that for
purposes of further promotion qualifying service would be determined
from the date they were actually promoted. These issues, if at all they
would become necessary for adjudication, can be raised by the
respondents with appropriate pleadings and impleading such persons
whose seniority would likely to be affected by a decision favourable
to the respondents.
25. No costs.
(PRADEEP NANDRAJOG)
JUDGE
(PRATIBHA RANI)
JUDGE
APRIL 12, 2013
skb/rk
Print Page
position :-
(i) Service Jurisprudence does not recognize retrospective promotion
i.e. a promotion from a back date.
(ii) If there exists a rule authorizing the Executive to accord
promotion from a retrospective date, a decision to grant promotion
from a retrospective date would be valid because of a power existing
to do so.
(iii) Since mala fides taints any exercise of power or an act done,
requiring the person wronged to be placed in the position the person
would find himself but for the mala fide and tainted exercise of power
or the act, promotion from a retrospective date can be granted if delay
in promotion is found attributable to a mala fide act i.e. deliberately
delaying holding DPC, depriving eligible candidates the right to be
promoted causing prejudice.
(iv) If due to administrative reasons DPC cannot be held in a year and
there is no taint of malice, no retrospective promotion can be made.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Pronounced on: April 12, 2013
W.P.(C) 8102/2012
UOI & ANR. .
versus
KL TANEJA AND ANR
CORAM:
HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J.
1. The respondents of the four captioned petitions were
working in the office of the Provident Fund Commissioner as GroupA
officers being appointed as direct recruits to the post of Assistant
Provident Fund Commissioner, earning promotion to the post of
Regional Provident Fund Commissioner Grade-II, all of them became
eligible for promotion to the post of Regional Provident Fund
Commissioner Grade-I. Being promoted as Regional Provident Fund
Commissioner Grade-II in the year 1999 all acquired eligibility for
being promoted as Regional Provident Fund Commissioner Grade-I in
the year 2004 since the eligibility was 5 years service rendered in the
feeder cadre. Persons senior to them and achieving the bench marks,
respondents could not be promoted when the DPC met on May 27,
2005, and they have no grievance on said score. W.P.(C) Nos.8102/2012, 20/2013, 99/2013 & 104/2013 Page 3 of 12
2. In the years 2006-07, 2007-08 and 2008-09, 12, 6 and 25
vacancies respectively, existed in the post of Regional Provident Fund
Commissioner Grade-I, but no DPC was held in the years 2006, 2007
and 2008. A DPC was held on May 21, 2009, which considered the
names of the eligible candidates and recommended a year-wise panel.
Regular promotions were made with effect from May 21, 2009. In the
interregnum, the respondents and a few other persons were granted
ad-hoc promotions with benefit of pay scale in the promotional post
3. The grievance of the respondents was that in the absence
of a regular promotion from the date when the vacancy became due,
to which they were ultimately promoted, their right to further
promotion to the post of Additional Central Provident Fund
Commissioner would be adversely affected because of the
requirement of qualifying service in the feeder cadre i.e. the post of
Regional Provident Fund Commissioner Grade-I, as also their
seniority; and by which we understand that there are direct
recruitments made to the post of Regional Provident Fund
Commissioner Grade-I, for if not, we see no issue of seniority being
adversely affected depending on how the seniority list is casted.
4. With reference to the decisions reported as 1987 (4) SCC
566 K.Madhavan vs.UOI, 1997 (9) SCC 287 UOI & Ors. vs.
N.R.Banerjee & Ors. and 2004 (1) SCC 245 P.N.Premchandaran vs.
State of Kerala & Ors. as also a decision of the Tribunal, view taken
by the Tribunal is that the respondents would be entitled to notional
promotions from the date vacancy against which they were promoted
fell due for the reason the respondents before the Tribunal i.e. the
Union of India and the Provident Fund Commissioner could not W.P.(C) Nos.8102/2012, 20/2013, 99/2013 & 104/2013 Page 4 of 12
furnish any justification for not holding DPCs on time. Though not
expressly noted by the Tribunal, we may state that in the reply filed to
the Original Applications, the petitioners simply said that due to
unavoidable reasons and administrative reasons beyond the control of
the petitioners, DPC could not meet. What were the facts on basis
whereof said stand was taken were never pleaded.
5. We need to speak a word.
6. That I could not do something required to be done by me
because of an unavoidable reason or a reason beyond my control, is a
conclusion stated. What was the fact which constituted the
unavoidable reason or a reason beyond my control has to be stated for
somebody to accept a justification. The rules of pleadings guide us
that if an inference from a fact is pleaded as a justification, the fact
has to be pleaded and not the inference alone.
7. As we would proceed to note the law on the subject, we
would find that to the normal rule of law that nobody can be promoted
with a retrospective effect except the exception is that when there
exist facts which necessitates so or there is a rule which permits so.
Thus, the facts which necessitated the exception to be applied have to
be specifically pleaded.
8. In the decision reported as 1987 (4) SCC 566
K.Madhavan & Anr. vs.UOI & Ors., the Supreme Court held that
nobody can claim a right for appointment to a post as a matter of
right. It was held that as a rule, retrospective appointment or
promotion to a post should not be resorted to unless on a sound
reasoning and foundation it becomes necessary to sparingly do so.
With respect to scheduled DPCs, only if they were cancelled mala W.P.(C) Nos.8102/2012, 20/2013, 99/2013 & 104/2013 Page 5 of 12
fide, arbitrarily or without any reasonable justification to the prejudice
of an employee, could the Government in such a case, to undo the
injustice caused, grant promotion from a retrospective date.
9. In the decision reported as 1989 Supp (2) SCC 625
Union of India & Ors. vs. K.K.Vadera & Ors. the protagonists were
the respondents, holding the post of Junior Scientific Officers (Group
'B' posts) in the Defence Research & Development Service. They had
earned promotion to the said post as and when a post fell vacant. The
promotion order stipulated that they would be promoted to the posts
of Scientists 'B' with effect from October 16, 1985 or from the date
they would actually assume charge of the post to which they were
promoted. The respondents filed an application before the Central
Administrative Tribunal, Allahabad, claiming that they should have
been promoted to the post of Scientists 'B' with effect from July 1,
1984. The Tribunal rejected the prayer of the respondents that their
promotions should have been made with effect from July 1, 1984 but
directed that their promotions should be with effect from the date on
which the promotional posts were created. The Supreme Court was
deciding the Appeal against the view taken by the Tribunal. Allowing
the Appeal the Supreme Court observed in para 5 as under:-
“5. ………..We do not know of any law or any rule under
which a promotion is to be effective from the date of
creation of the promotional post. After a post falls vacant
for any reason whatsoever, a promotion to that post
should be from the date the promotion is granted and not
from the date on which such post fall vacant. In the same
way when additional posts are created, promotions to
those posts can be granted only after the Assessment
Board has met and made its recommendations for
promotions being granted.”W.P.(C) Nos.8102/2012, 20/2013, 99/2013 & 104/2013 Page 6 of 12
10. Relevant would it be to note that as per the decision there
was no rule which was cited before the Court as per which promotion
to the post had to be with retrospective effect i.e. from the date the
post fell vacant. The observations of the Supreme Court that ‘We do
not know of any law’ would mean that service jurisprudence does not
jurisprudentially recognize retrospective promotions. The decision
would therefore mean that unless a specific rule exists evidencing to
the contrary, promotions take effect from the date the person is
actually promoted and not retrospectively.
11. In the decision reported as (1998) 7 SCC 44 Baij Nath
Sharma vs. Hon’ble Rajasthan High Court At Jodhpur & Anr., relying
upon the law declared in K.K.Vadera’s case (supra), since no rule
was shown which could justify a retrospective promotion, and no
mala fides pleaded or proved in delaying promotions, the Supreme
Court held that the appellant, a Member of the Rajasthan Judicial
Service, could not be promoted from the date a vacancy accrued in the
Rajasthan Higher Judicial Service against which vacancy he was
ultimately promoted.
12. The same view was reiterated in the decisions reported
as AIR 2004 SC 3460 Sanjay K.Sinha & Ors. vs. State of Bihar &
Ors., 2006 (13) SCALE 246 State of Uttaranchal & Ors. Vs.Dinesh
Kr.Sharma and 2008 (14 ) SCC 29 Nirmal Chandra Sinha vs. UOI &
Ors. The last decision i.e. in Nirmal Chandra Sinha’s case (supra)
referred to certain observations made by the Supreme Court in the
decision reported as 1997 (8) SCC 89 UOI vs. B.S.Aggarwal which
tends to show to the contrary, as being made on the special W.P.(C) Nos.8102/2012, 20/2013, 99/2013 & 104/2013 Page 7 of 12
circumstances of that case and on humanitarian consideration (refer
para 9 of the decision in Nirmal Chandra’s case.)
13. In the decision reported as (2007) 1 SCC 683 State of
Uttaranchal & Anr. vs. Dinesh kumar Sharma it was observed:-
“Respondent was working as a Subordinate Agriculture
Services Group-I. Subsequently, he became eligible for
promotion. A promotional post became vacant and
thereafter, substantive appointment of Respondent to said
post was made. Respondent claimed seniority and
consequential benefit from date when promotional post
became vacant. State Government rejected claim made
by Respondent. On writ, Division Bench of High Court
directed state to reconsider case of Respondent. Hence
the appeal was filed which was allowed and it was held
that under Rule 8 of Uttar Pradesh Government Servants
Seniority Rules, 1991 a person appointed on promotion
shall not get seniority of any earlier year but shall get
seniority of year in which his/her appointment is made.
Hence respondent was not entitled to seniority from date
when promotional post became vacant as no
retrospective effect could be given to order of
appointment order under the Rules.”
14. The decision is in line with the reasoning that unless a
rule to the contrary exists, promotions cannot be made or directed to
be made retrospectively.
15. With reference to the decisions where benefit of
promotion from a retrospective date was accorded, we find an
unreported decision of the Supreme Court disposing of Civil Appeal
No.1655/1997 titled Union of India & Anr. vs. Santhanakrishnan &
Ors.. The facts were that there was delay in holding the examination
to fill up posts which had fallen vacant in the 33.33% quota known as
Limited Departmental Competitive Examination under Rule 2(iii) of W.P.(C) Nos.8102/2012, 20/2013, 99/2013 & 104/2013 Page 8 of 12
the Relevant Rules. Whereas vacancies in the remaining 66.66%
quota were being filled up in the year said vacancies arose, this was
not done with respect to posts falling vacant in the 33.33% quota. The
question involved was the computation of required minimum period
of service among the class of promotees whose results were published
in May 1985 whereas the actual promotions were effected in June
1985, for further promotion as Senior Assistant Engineer. The
Tribunal gave due leavage for completing the process of examination
and fixed the notional date of promotion as 12.9.1982. Supreme
Court observed that view taken by the Tribunal was right keeping in
view that by virtue of such notional date of promotion, the department
was not put to any monetary loss and the promotees concerned were
not entitled to any arrears of salary from that date, though for other
purposes, including seniority it was ordered to be counted.
16. The decision is purely on facts and from the
observations: ‘After hearing the learned counsel appearing on either
side, we are of the view that de-hors the niceties of the legal issues
involved as also the interpretation of the relevant rules, substantial
justice seems to have been rendered by attempting to resolve an
unprecedented and one time problem which seems to have cropped
up’ it is but apparent that the Supreme Court had in mind ‘substantive
justice’ and thus the decision can be traced to the power of the
Supreme Court under Article 142 of the Constitution of India.
17. In the decision reported as AIR 2004 SC 255 P.N
Premachandran vs. The State of Kerala & Ors., the private
respondents before the Supreme Court could not be promoted on
Regular Basis as Assistant Directors in time on account of W.P.(C) Nos.8102/2012, 20/2013, 99/2013 & 104/2013 Page 9 of 12
administrative lapses; however they were granted temporary
promotions; DPC were not convened from the year 1964 to 1990 and
hence the State of Kerala took a conscious decision that those who
had been acting in a higher post for a long time, although on a
temporary basis, but were qualified at the time when they were so
promoted and were subsequently found to be eligible by the
Departmental Promotion Committee to be promoted at a later date,
should be granted benefit of promotion with retrospective effect. In
these circumstances noting a residual provision conferring power
upon the State Government being Rule 39 of Kerala State &
Subordinate Services Rules 1958, the Supreme Court upheld the grant
of promotion to the private respondents with effect from a
retrospective date.
18. The decision is in conformity with the consistent view
taken by the Supreme Court that where an ad-hoc, temporary or stopgap
promotion which is not fortuitous is followed by regular
promotion and on the date of ad-hoc, temporary or stop-gap
promotion the person was eligible for regular promotion and there
existed a vacancy in the quota applicable and it was followed by a
regular promotion, for purposes of service benefits past service could
be reckoned as a regular service if a Rule so permitted.
19. In the decision reported as 1995 (4) SCC 246 Vinod
Kumar Sangal vs.UOI& Ors. due to reorganization of the cadre, DPC
could not meet from the year 1979 to 1984. Bunching all the
vacancies DPC was held in the year 1985, which was obviously
wrong. The Supreme Court directed DPC to be convened with
reference to vacancies accruing each year. It was directed that benefit W.P.(C) Nos.8102/2012, 20/2013, 99/2013 & 104/2013 Page 10 of 12
of retrospective promotion would be given. But we find no discussion
on the legal issue whether as a matter of rule retrospective promotion
can be effected, and it appears that the consequential directions found
a mention and a place in the decision not as a result of a conscious
view taken pursuant to a debate.
20. In a latest decision reported as 2010 (4) SCC 290 UOI &
Anr. vs. Hemraj Singh Chauhan & Ors., the facts were that the
respondents, Members of the State Civil Service, were expecting
promotion to the Indian Administrative Service under the promotion
quota requiring State Cadre review to be done well in time as per Rule
4(2) of the Indian Administrative Service (Cadre) Rules 1954 and the
panel to last only for 60 days. There was an unexplainable delay
causing severe prejudice to the respondents. Expressly invoking its
power under Article 142 of the Constitution of India benefit of
retrospective promotion was granted.
21. The cornucopia of case law above noted brings out the
position :-
(i) Service Jurisprudence does not recognize retrospective promotion
i.e. a promotion from a back date.
(ii) If there exists a rule authorizing the Executive to accord
promotion from a retrospective date, a decision to grant promotion
from a retrospective date would be valid because of a power existing
to do so.
(iii) Since mala fides taints any exercise of power or an act done,
requiring the person wronged to be placed in the position the person
would find himself but for the mala fide and tainted exercise of power
or the act, promotion from a retrospective date can be granted if delay W.P.(C) Nos.8102/2012, 20/2013, 99/2013 & 104/2013 Page 11 of 12
in promotion is found attributable to a mala fide act i.e. deliberately
delaying holding DPC, depriving eligible candidates the right to be
promoted causing prejudice.
(iv) If due to administrative reasons DPC cannot be held in a year and
there is no taint of malice, no retrospective promotion can be made.
22. The Tribunal has not kept afore-noted distinctions in
mind and thus it has to be held that the impugned decision dated
March 01, 2012 is required to be set aside, but before passing formal
orders, we need to note something more.
23. The respondents have been functioning on ad hoc basis
as Regional Provident Fund Commissioner Grade-I from the date
vacancies fell due and have been receiving salary in the grade
applicable. In other words all of them were promoted on ad hoc basis
without a DPC being convened. It is not in dispute that the ad hoc
promotion was with respect to vacancies available in the year in
which they were promoted. It is a case of ad hoc promotion being
followed by confirmation/regular promotion. There is no financial
implication of the impugned decision which grants regular
retrospective promotion for the reason the respondents, being
promoted on ad hoc basis were being paid salary in the higher grade.
They earned annual increments. The only effect of the impugned
decision would be to affect their seniority, which obviously would be
with respect to direct recruits for the reason within promotees, if
everybody’s promotion is delayed, it makes no difference for
purposes of seniority. On the concept of further right to be promoted
with reference to service in the grade, it all depends upon the language
of the service rule. Whether it contemplates regular service in the W.P.(C) Nos.8102/2012, 20/2013, 99/2013 & 104/2013 Page 12 of 12
grade, post regular appointment/regular promotion? Or it envisages
continuous service in the grade? The issue has to be decided in light
of the service rules.
24. Making it clear that an inter se issue of seniority between
direct recruits and promotees cannot be resolved by a judicial fora
without impleading persons likely to be affected, and with reference
to the service to be rendered for further promotion in the context of
eligibility, issue has to be decided on the basis of the language of the
applicable rule, we dispose of the writ petition setting aside the
impugned order dated March 01, 2012 but clarify that this does not
mean that we have held respondents not entitled to seniority from the
date they were promoted on ad hoc basis nor have we held that for
purposes of further promotion qualifying service would be determined
from the date they were actually promoted. These issues, if at all they
would become necessary for adjudication, can be raised by the
respondents with appropriate pleadings and impleading such persons
whose seniority would likely to be affected by a decision favourable
to the respondents.
25. No costs.
(PRADEEP NANDRAJOG)
JUDGE
(PRATIBHA RANI)
JUDGE
APRIL 12, 2013
skb/rk
No comments:
Post a Comment