The Union of India v. B. Subrahmanyeswara Rao

Order

(Per Sri Justice GHULAM MOHAMMED) This Writ Petition filed challenging the order dated

13.11.2002 passed in O.A.No. 1655 of 2000 on the file of Central Administrative Tribunal, Hyderabad.

O.A. was filed by the respondent herein seeking for declaration that the action of the first and second respondents therein in not considering his case for the post of Senior Accounts Officer with effect from 1.1.1996 on par with his juniors and rejecting the same as illegal, arbitrary, contrary to the rules and violative of Articles 14 and 16 of the Constitution of India and to direct the respondents to grant notional promotion as Senior Accounts Officer with effect from 1.1.1994 in the scale of pay of Rs. 2200/--4000/- with all arrears including pensionary benefits. The Tribunal allowed the O.A partly and directed the respondents 1 and 2 to consider the case of the applicant for promotion on notional basis to the post of Senior Accounts Officer on evaluation of comparative merit in the ratio applicable, as on 1st July 1996 and if he is found eligible on such comparative evaluation, then notional seniority with attendant benefits be given to him. This exercise shall be made by the authority concerned within a period of four months from the date of receipt of the order. Brief facts of the case are as follows: The respondent joined in the Postal Accounts Department the Direction of Accounts (Posts) Andhra Circle, A.P., Hyderabad-second petitioner herein. Later he was promoted as Accounts Officer. The eligibility for the purpose of promotion to the Senior Accounts Officer is three years of service as Accounts Officer. The respondent having three years eligibility service as on 1.1.1994, was entitled only for consideration of his case and to be placed before the DPC. But it is stated that no DPC was conducted till 1.7.1996 and by that date, the Applicant retired from service i.e., with effect form

31.10.1995 and due to administrative reasons convening of DPC for the purpose of promotion to the post of Senior Accounts Officer is delayed. While the matter stood thus, the respondent made a representation to the petitioners on 21.10.1998, seeking his promotion as Senior Accounts Officer with effect from 1.1.1994. But the same was rejected by the petitioners vide proceedings dated 30.12.1998. Two of the juniors to the respondent herein, claiming the same relief filed O.A.No. 698 of 1996 before the Central Administrative Tribunal, Hyderabad, seeking their promotion as Senior Accounts Officer with effect from 1.10.1995 and 1.7.1995 respectively and the said O.A was allowed by the Tribunal on 30.9.1998. When the Department carried the said matter in W.P.No. 3713 of 1999, this Court disposed of the same on 23.3.1999, directing consideration of the claim of the employees therein for promotion on notional basis to the post of Senior Accounts Officer on evaluation of comparative merit in the ratio applicable as on 1.7.1996 and if they are found eligible, their notional seniority with attendant benefits be given. Thus, juniors to the respondent herein were given the notional promotion even after their retirement, since they filed their claim within the period of limitation before the Tribunal. Whereas, the responent herein has chosen to claim his promotion only in October, 1998 for the first time i.e., after the date of the judgment of the Central Administrative Tribunal rendered in O.A.No. 698 of 1996. Thus, the claim of the respondent seeking his notional promotion as Senior Accounts Officer with effect from 1.1.1994 in the pay scale of Rs. 2200/- - 4,000/- with all arrears, including the pensionary benefits in O.A.No. 1655 of 2000 filed in October, 2000 is barred by limitation and hit by delay and laches. The cause of action arose for the respondent to claim his promotion on 1.1.1994 or on

1.7.1996 when the DPC met for filling up the said vacancies, but the respondent has not chosen to claim the promotion on the said dates. Even in spite of rejection of his representation by the Department on

30.12.1998, the applicant has chosen to file the O.A before the Tribunal in October, 2000 i.e., nearly after one year 10 months. The learned Standing Counsel appearing for petitioners contended that since the case of the other respondents was not similar and no doubt they are juniors to the respondent-applicant and they are vigilant and prompt in approaching the Tribunal and they were in service when DPC was convened and when they were denied without approaching the Tribunal in time and the Tribunal considered their claim and granted relief. Whereas the respondent-applicant retired from service on 31.10.1995 and DPC was constituted on 1.7.1996 and his case was not placed since he attained the age of superannuation due to his retirement and he was not diligent in approaching the court and where as the other persons, who are juniors to the respondent- applicant, they filed OA in time. Apart from that, he submitted that the Tribunal has not considered the judgment of the Apex Court in UNION OF INDIA AND OTHERS VS. K.K. VADERA AND OTHERS [1] , wherein it was held that there is no rule of law 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 falls 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 recommendations for promotions being granted.” The Tribunal has not considered this judgment and he further contended that the applicant cannot claim as a matter of right, the promotion in the vacancy that had arisen since it is a selection post and the DPC has to meet and because of administrative reasons DPC was not convened and it is for the authority to convene DPC as per the administrative exigencies. The learned counsel appearing for the respondent-applicant contended that the juniors to the respondent have approached the Tribunal and they got relief and denying the same to the respondent is nothing but discrimination and the same was confirmed by the High Court in W.P.No. 3713 of 1999. He further contended that the Tribunal has rightly adjudicated the matter on merits and considered the equity clause mentioned in Article 14 of the Constitution and granted relief and therefore, there is no illegality or irregularity in the matter and there is no error of jurisdiction warranting interference under Article 226 of the Constitution. The petitioner has retired from service on 31.10.1995 and admittedly the post fell vacant in 1.1.1994 and the DPC was convened on 1.7.1996 and by that time the applicant retired from service on

31.10.1995. It is evident from record that the applicant-respondent slept over the matter for three years and made a representation on

21.10.1998 that was rejected on 30.12.1998 after the OA was allowed. Thereafter, he filed O.A.No. 1655 of 2000 and he did not approach the Tribunal immediately. He approached only after a lapse of one year 10 months period. Whereas the other persons who were vigilant and prompt their actions approached the Tribunal immediately and relief was granted. Whereas, the petitioner did not move in the matter even after allowing the O.A and he ultimately approached the Tribunal only after a lapse of one year ten months. Even then, the Tribunal granted the relief condoning the delay in M.A. No. 886 of 2001 in O.A.No. 1655 of 2000. As far as the relief is concerned, the Tribunal directed the respondents to consider the case of the applicant for promotion on notional basis to the post of Senior Accounts Officer on evaluation of comparative merit in the ratio applicable, as on first July 1996 and if he is found eligible on such comparative evaluation, then notional seniority with attendant benefits be given to him. Having regard to the facts and circumstances of the case and in view of the fact that since the Tribunal has not shown any discrimination and the other persons approached the Tribunal in time and got the relief, whereas the respondent himself did not agitate the matter in time though his rights are infringed. However, we are of the view that the respondent is entitled for consideration for notional promotions from the date on which his juniors were promoted. As far as the mandatory benefit is concerned, he is entitled from the date of notional promotion i.e., 1.1.1996 till 21.10.1998. Since the DPC was convened on 1.7.1996 and the respondent retired from service on 31.10.1995 , it is for the authority to give notional promotion from the date on which the juniors have been given promotion if the applicant is entitled otherwise as per the DPC. Accordingly, the Writ Petition is disposed of. No order as to costs. GHULAM MOHAMMED ,J _____________________________ ___________________________ G. BHAVANI PRASAD, J Dt. 6.11.2008 KA // TRUE COPY // ..... REGISTRAR SECTION OFFICER To

1. 2CD copies [1] 1989 SUPP (2) SCC 625