UNION OF INDIA & ANR. versus MANPREET SINGH POONAM ETC. on 8 March 2022

1. These appeals are filed by the respondents before the HighCourt and the Central Administrative Tribunal, raising a challenge ontwo grounds, namely: - i.A voluntary retiree cannot seek promotion as a matter ofright sans rules governing.

ii.a mere delay in consideration of the promotion would notcreate a vested right over a post that quantifies the maximumaccommodation in terms of numbers, involving a processof suitability.

BRIEF FACTS:

2. Both the respondents before us worked with the appellantholding the post of Junior Administrative Grade-II (hereinafter referredto as “JAG-II”) officers. Respondent in Civil Appeal No.517 of 2017retired in the said capacity voluntarily in the year 2010. Respondent inCivil Appeal No.518 of 2017was promoted on ad hoc basis to JuniorAdministrative Grade-I (hereinafter referred to as “JAG-I”) vide orderdated 27.12.2011 and regularized vide notification dated 17.04.2012 witheffect from 01.07.2011, after undergoing a selection process against thevacancies in tune with Rule 4 of the National Capital Territory ofDelhi, Andaman and Nicobar Islands, Lakshadweep, Daman andDiu and Dadra and Nagar Haveli (Civil Service) Rules, 2003(hereinafter referred to as ‘2003 Rules’) which prescribes 10% asthe maximum in the cadre of JAG-I of the total sanctioned strength ofthe posts in the service. The 2003 Rules were amended vide Notificationdated 01.10.2009, and the sanctioned strength was increased to 472.

3. The respondents filed separate applications before the CentralAdministrative Tribunal (CAT). Despite holding that the post of JAG-I isneither wholly promotional nor an upgradation, the applications weredismissed on the premise that a conjoint reading of Rule 4 and 7 of the2003 Rules would disentitle the relief being granted.

4. The respondents filed writ petitions assailing the aforesaiddecision of the CAT, which were allowed inter alia holding thatRespondent in Civil Appeal No.517 of 2017 is entitled to relief in termsof the Circular No.AB.14017/47/2011-EST (DR) dated 01.08.2012 issued A

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Aby the Department of Personnel and Training (DoPT), which facilitatesa retired officer who is otherwise eligible as on the due date to beconsidered for the benefit of “pay-upgradation”. In the case of Respondentin Civil Appeal No.518 of 2017, the High Court reasoned that after keepingthe officer without consideration for promotion for a long time, with thedecision to grant promotion with effect from 01.07.2011, there is noBjustification for denying it from 01.10.2009. Thus, both the writ petitionsfound favour with the High Court. Assailing the aforesaid orders, theappellants filed the present appeals.

ARGUMENTS:

C5. Heard Ms. Rekha Pandey, learned counsel for the Appellants,Ms. Avnish Ahlawat, learned counsel for the Respondent in Civil AppealNo.517 of 2017 and party in person in Civil Appeal No. 518 of 2018.

6. The learned counsel appearing for the appellants submittedthat the High Court committed a fundamental error in granting the reliefDin favour of Respondent in Civil Appeal No.517 of 2017, Shri M.S.Poonam, who admittedly voluntarily retired in the year 2010 while thepromotion was granted after the completion of the selection process on04.04.2012 against the vacancies which arose in the year of 2011, in thelight of promotion of ‘JAG-I’ officers to IAS. The High Court hasmisconstrued Circular No. AB.14017/47/2011-EST (DR) datedE01.08.20212 issued by the Department of Personnel and Training(DoPT), which can be applied only for upgradation simpliciter. There isno need to challenge the finding of the CAT when the applications filedwere dismissed.

7. As there is no vested or accrued right over a promotional post,Fin the absence of any vacancies actually in existence for the year 2009,the migration of the other officers of the Indian Administrative Service(IAS) cadre took place only in the year 2011. Thus, the embargo broughtforth by Rule 4 and 7 of the 2003 Rules would not facilitate such a relief.Under the Indian Administrative Service (Appointment by promotion)GRegulations 1954, and IAS (Regulations of Seniority Rules, 1987,Officers inducted into IAS from ‘JAG-I’ get seniority from the date onwhich vacancy arises, even though induction takes place subject to DPC.In the present case, there was a delay in holding of DepartmentalPromotion Committee (hereinafter referred to as ‘DPC’) for inductionof JAG-I officers into IAS, as such actual vacancy in JAG-I occurred inH2011, even though notional vacancy may have arisen in 2009 itself. Since the promotion from JAG-II to JAG-I is governed by the 2003 Rules,which prescribe promotion when actual vacancy arises and DPC takesplace, as such, a right would accrue to an officer only after his entry andtherefore, mere inclusion in the select list based on induction of JAG-Iofficers into IAS, is of no consequence. Under the 2003 Rules, a vacancywould mean an actual one and inclusion in the select list to a differentcadre governed by different rules would not create a deemed one. Inany case, on facts, the respondent in Civil Appeal No.518 of 2017 wasappointed to JAG-I service on an ad hoc basis only on 27.12.2011 and,therefore, without being inducted in the said cadre, he cannot seek forpromotion with retrospective effect.

8. It was further submitted that regularization took place on17.04.2012 with effect from 01.07.2011, after his clearance by the DPC,which is a benefit conferred upon him. Since there would be an excessof 10% in the post of JAG-I, the aforesaid rules also clearly indicate thatJAG-I is a promotional post from the feeder category of JAG-II asdemonstrated through Schedule I and Schedule III in tune with theemphasis of Rule 4.1, 7.3, 7.4 and 7.5 of the 2003 Rules.

9. The counsel for Respondent in Civil Appeal No.517 of 2017submitted that what has been done is only an upgradation and, therefore,the consequential benefit will have to be given to the respondent as well.Respondent in Civil Appeal No.518 of 2017, Shri Suresh Gupta, submittedthat one has to see the proviso to Rule 4 of 2003 Rules, and for the delaycommitted by the Appellants, he cannot be made to suffer. It was furthersubmitted that the Respondents were at Serial No.1 and 2, in the selectlist for the year 2009, and as such, his appointment ought to be witheffect from 2009 and not 01.07.2011.

ANALYSIS AND CONCLUSION:

10. On considering the submissions made, it would only beappropriate to place on record the relevant rules governing the issuesraised along with the schedules:

Rule 4.1 of the 2003 Rules:

“-4.Grades, strength and their review.

(1) The duty posts included in the various grades, theirnumber and the scales of pay attached to them on the dateof commencement of these rules shall be as specified in A

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Schedule I: Provided that ten per cent and twenty per centof the sanctioned strength of the posts in the Service shallbe non-functional grades of Junior Administrative Grade-I and Selection Grade respectively, and these shall beoperated within the respective number of posts specifiedin Parts B and C of Schedule I: Provided further that thenumber of posts in Junior Administrative Grade I shall notexceed the total number of sanctioned posts in the JuniorAdministrative Grade in the scale of pay of Rs.12,000-16,500.”

Rule 7.3, 7.4 and 7.5 of the 2003 Rules:

“7. Future maintenance of the Service: - xxx xxx xxx

(3) All the vacancies in the grades of JuniorAdministrative Grade-I, Junior Administrative Grade-II and Selection Grade shall be filled by promotion fromamongst the officers in the immediate respective lowergrade with the minimum qualifying service as specifiedin Schedule III.

(c) The promotion to the Junior Administrative Grade- I and Selection Grade shall be made in the order ofseniority subject to rejection of unfit.

(5) The selection in each case under sub-rule (4) shallbe made on the recommendations of the DepartmentalPromotion Committee.”

Schedule I of the 2003 Rules:

“SCHEDULE I

[See rule 4(1)]

Name, number and scale of pay of duty posts in the gradesof the National Capital Territory of Delhi, Andaman andNicobar Islands Lakshadweep, Daman and Diu and Dadraand Nagar Haveli Civil Service.

UNION OF INDIA & ANR. v. MANPREET SINGH POONAM ETC.[M. M. SUNDRESH, J.]

Schedule IIIof the 2003 Rules:

“SCHEDULE III

[See rule 7 (3)]

11. There is no dispute, at least to the effect, that the aforesaidrules and the schedules govern the service condition, including the officer’spromotion from JAG-II to JAG-I. Rule 4 fixes the cap of the sanctionedstrength to the post to the maximum of 10%. The schedules to theaforesaid rules clearly indicate the different pay scales for JAG-I andJAG-II.

12. Rule 7 of the 2003 Rules specifies that the vacancies arisingin JAG-I shall only be filled by promotion from amongst the officers inthe immediate respective lower grade with the minimum qualifying serviceas specified in Schedule III. Schedule III clearly states that JAG-I is thepromotional post with JAG-II as the feeder cadre post, subject to theother prescribed qualifications.

13. As there is no ambiguity in the aforesaid rules, we are not ableto approve the views of the CAT and the High Court that JAG-I is amere upgradation of JAG-II. Differential pay scale along with a processof selection qua suitability fixing eligibility criteria are the factors todetermine whether a particular post is the same as the other or apromotional one. We feel that such an exercise is not required since the A

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Arules themselves are specific. When the rules are specific and clear,there is no need for interpretation which may lead to a case of judiciallegislation. We are also in agreement with the submission of the learnedcounsel for the appellant that the reasoning of the CAT, though notchallenged is unsustainable, since there is no occasion to challenge itwith the dismissal of the applications filed.

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14. The High Court also fell in error in taking note of the delay inconsidering the case of the respondents to the promotional post of JAG-I. No officer has a vested right to a promotional post, which is restrictedto that of consideration according to law. The law on this aspect is settledby this Court in the case of Ajay Kumar Shukla and Ors. v. Arvind RaiCand Ors., 2021 SCC OnLine SC 1195:

“37. This Court, time and again, has laid emphasis on right to beconsidered for promotion to be a fundamental right, as was heldby K. Ramaswamy, J., in the case of Director, Lift IrrigationDCorporation Ltd. v. Pravat Kiran Mohanty [(1991) 2 SCC 295] inparagraph 4 of the report which is reproduced below:

“4… There is no fundamental right to promotion, but anemployee has only right to be considered for promotion, whenit arises, in accordance with relevant rules. From thisEperspective in our view the conclusion of the High Court thatthe gradation list prepared by the corporation is in violation ofthe right of respondent/writ petitioner to equality enshrinedunder Article 14 read with Article 16 of the Constitution, andthe respondent/writ petitioner was unjustly denied of the sameis obviously unjustified.”

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38. A Constitution Bench in case of Ajit Singh v. State of Punjab[(1999) 7 SCC 209], laying emphasis on Article 14 and Article16(1) of the Constitution of India held that if a person who satisfiesthe eligibility and the criteria for promotion but still is not consideredfor promotion, then there will be clear violation of his/her’sGfundamental right. Jagannadha Rao, J. speaking for himselfand Anand, CJI., Venkataswami, Pattanaik, Kurdukar, JJ.,observed the same as follows in paragraphs 21 and 22 and 27:

“21 : Articles 14 and 16(1) : is right to be considered forpromotion a fundamental right H

22 : Article 14 and Article 16(1) are closely connected. Theydeal with individual rights of the person. Article 14 demandsthat the “State shall not deny to any person equality before thelaw or the equal protection of the laws”. Article 16(1) issues apositive command that “there shall be equality of opportunityfor all citizens in matters relating to employment or appointmentto any office under the State”.

It has been held repeatedly by this Court that clause (1) ofArticle 16 is a facet of Article 14 and that it takes its rootsfrom Article 14. The said clause particularises the generalityin Article 14 and identifies, in a constitutional sense “equalityof opportunity in matters of employment and appointment toany office under the State. The word “employment” beingwider, there is no dispute that it takes within its fold, the aspectof promotions to posts above the stage of initial level ofrecruitment. Article 16(1) provides to every employee otherwiseeligible for promotion or who comes within the zone ofconsideration, a fundamental right to be “considered” forpromotion. Equal opportunity here means the right to be“considered” for promotion. If a person satisfies the eligibilityand zone criteria but is not considered for promotion, then therewill be a clear infraction of his fundamental right to be“considered” for promotion, which is his personal right.

“Promotion based on equal opportunity and seniority attachedto such promotion are facets of fundamental right under Article16(1)

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27. In our opinion, the above view expressed in Ashok KumarGupta and followed in Jagdish Lal and other cases, if it isintended to lay down that the right guarantee to employees forbeing “considered” for promotion according to relevant rulesof recruitment by promotion (i.e. whether on the basis ofseniority or merit) is only a statutory right and not a fundamentalright, we cannot accept the proposition. We have already statedearlier that the right to equal opportunity in the matter ofpromotion in the sense of a right to be “considered” forpromotion is indeed a fundamental right guaranteed underArticle 16(1) and this has never been doubted in any othercase before Ashok Kumar Gupta right from 1950.”

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A15. On facts, we find that promotions could be given for the reasonthat the migration of the then incumbent in the post of JAG-I, despitebeing in the select list to the cadre of IAS, did not take place and thus,they were working in the said post till the date of notification pavingway. The aforesaid factual position not disputed, the rigor of Rule 4would certainly come into play. We do not find the proviso to Rule 4Bhelping the case of the respondents. The post of JAG-I is certainly apromotional post from the feeder cadre of the JAG-II.

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16. It is trite law that once an officer retires voluntarily, there iscessation of jural relationship resorting to a “golden handshake” betweenthe employer and employee. Such a former employee cannot seek toCagitate his past, as well as future rights, if any, sans the prescription ofrules. This would include the enhanced pay scale. The Respondent in CivilAppeal No.517 of 2017 was rightly not considered in the DPC in 2012since he was no longer in service at the relevant point of time. The HighCourt has committed an error in relying upon a circular, which has got noDapplication at all, particularly in the light of our finding that we are dealingwith a case of promotion simpliciter as against up-gradation of any nature.

17. On facts, there is no dispute that Respondent in Civil AppealNo.518 of 2017 was given promotion after the successful considerationby the DPC. On such clearance the appellant has rightly fixed theEpromotion with the year of actual vacancy, as per rules. Thus, theRespondent neither on facts nor on law can claim retrospective promotion,and that too from the year 2009 being the year in which he was placedin the select list against a notional vacancy, especially when the thenexisting vacancy accrued only in the year 2011, when the JAG-I officerswere actually inducted into IAS, against which he was promoted. AsFsuch, the promotion cannot be granted retrospectively and extended togive benefit and seniority from the date of notional vacancy, causingviolence to Rule 4 and 7 of the 2003 Rules.

18. A mere existence of vacancy per se will not create a right infavour of an employee for retrospective promotion when the vacanciesGin the promotional post is specifically prescribed under the rules, whichalso mandate the clearance through a selection process. It is also to beborne in mind that when we deal with a case of promotion, there cannever be a parity between two separate sets of rules. In other words, aright to promotion and subsequent benefits and seniority would ariseHonly with respect to the rules governing the said promotion, and not a different set of rules which might apply to a promoted post facilitatingfurther promotion which is governed by a different set of rules. In thepresent case, the authority acting within the rules has rightly grantedpromotion after clearance of DPC on 17.04.2012 with effect from01.07.2011, when the actual vacancies arose, which in any case is abenefit granted to the Respondent in Civil Appeal No.518 of 2017. Inour view, this exercise of power by the authority of granting retrospectivepromotion with effect from the date on which actual vacancies arose isbased on objective considerations and a valid classification.

19. This Court in the case of Union of India v. KK Vadhera andOrs., 1989 Supp (2) SCC 625 has clearly laid down that the promotion toa post should only be granted from the date of promotion and not fromthe date on which vacancy has arisen, and has observed that:

“5….We do not know of any law or any rule under which apromotion is to be effective from the date of creation of thepromotional post After a post falls vacant for any reasonwhatsoever, a promotion to that post should be from the date thepromotion is granted and not from the date on which such postfalls vacant. In the same way when additional posts are created,promotions to those posts can be granted only after the AssessmentBoard has met and made its recommendations for promotionsbeing granted. If on the contrary, promotions are directed tobecome effective from the date of the creation of additional posts,then it would have the effect of giving promotions even beforethe Assessment Board has met and assessed the suitability of thecandidates for promotion. In the circumstances, it is difficult tosustain the judgment of the Tribunal.”

20. Similarly, this Court in the case of Ganga Vishan Gujrati andOrs. v. State of Rajasthan, (2019) 16 SCC 28 has held that:

45. A consistent line of precedent of this Court follows the principlethat retrospective seniority cannot be granted to an employee froma date when the employee was not borne on a cadre. Seniorityamongst members of the same grade has to be counted from thedate of initial entry into the grade. This principle emerges fromthe decision of the Constitution Bench of this Court in DirectRecruit Class II Engg. Officers’ Assn. v. State of Maharashtra,(1990) 2 SCC 715 . The principle was reiterated by this Courtin State of Bihar v. Akhouri Sachindra Nath, 1991 Supp (1) SCC

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334 and State of Uttaranchal v. Dinesh Kumar Sharma, (2007) 1SCC 683. In Pawan Pratap Singh v. Reevan Singh, (2011) 3 SCC267, this Court revisited the precedents on the subject and observed:

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“45. … (i) The effective date of selection has to be understoodin the context of the Service Rules under which the appointmentis made. It may mean the date on which the process of selectionstarts with the issuance of advertisement or the factum ofpreparation of the select list, as the case may be.

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(ii) Inter se seniority in a particular service has to be determinedCas per the Service Rules. The date of entry in a particular serviceor the date of substantive appointment is the safest criterion forfixing seniority inter se between one officer or the other orbetween one group of officers and the other recruited fromdifferent sources. Any departure therefrom in the statutory rules,executive instructions or otherwise must be consistent with theDrequirements of Articles 14 and 16 of the Constitution.

(iii) Ordinarily, notional seniority may not be granted from thebackdate and if it is done, it must be based on objectiveconsiderations and on a valid classification and must be traceableto the statutory rules.

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(iv) The seniority cannot be reckoned from the date ofoccurrence of the vacancy and cannot be given retrospectivelyunless it is so expressly provided by the relevant Service Rules.It is so because seniority cannot be given on retrospective basiswhen an employee has not even been borne in the cadre andby doing so it may adversely affect the employees who havebeen appointed validly in the meantime.”

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This view has been re-affirmed by a Bench of three Judges of thisCourt in P. Sudhakar Rao v. U. Govinda Rao, (2013) 8 SCC 693.”

21. For the aforesaid reasoning, we are unable to give ourGimprimatur to the reasoning of the High Court. Accordingly, the appealsstand allowed and consequently, the order passed by the High Courtstand set aside. No costs.

Devika Gujral(Assisted by : Mahendra Yadav, LCRA)H