Judgment:
Shekhar Agarwal, Member (A)
The applicant has sought the following relief:-
âIt is, therefore, most respectfully prayed that your Lordships may graciously be pleased to quash/set aside the orders dated 12.3.2010 passed by the respondents, rejecting the representation of the applicant and further direct the respondents to promote the applicant to the post of Additional Secretary (Selection Grade) in the grade of Rs.67000-79000 w.e.f. November 2004 and further direct the respondents to consider the applicant for promotion to the Secretary level post by holding review DPC w.e.f. January 2006 with all consequential benefits or may pass any other orders or directions as may deem fit and proper in the interest of justice.â
2. Facts of the case are that the applicant was an officer of Indian Information Service of 1971 batch. She had gradually risen in the service and had become due for promotion to Additional Secretary equivalent post in 2004. Three posts of this level fell vacant between January, 2003 and February, 2004. A DPC was convened for filling up these posts which recommended the name of the applicant. Her Ministry sought the approval of ACC. The approval of ACC was given on 06.11.2003 with a rider that restructuring of Indian Information Service be completed due to formation of Prasar Bharti. Later the Ministry again sought approval of ACC to operate the panel. Finally, ACCs approval for operating the panel was obtained on 15.10.2004 subject to validity of the panel being extended by DoPandT in relaxation of the extant DPC guidelines. DoPandT approved the panel on 19.11.2004. Orders for promotion of the applicant were issued on 17.01.2005 and she took charge to the post on 18.01.2005.
2.1 For promotion to the next grade, two years of service at the level of Additional Secretary equivalent post was prescribed. A vacancy in this grade had occurred on 01.08.2005. Since no officer fulfilled the eligibility condition of two years service and since the applicant was the senior most officer available at that time, she was given additional charge of the post.
2.2 Separately, DoPandTs approval was also sought to consider the applicant for promotion to higher grade on regular basis in relaxation of qualifying service to the extent of 1 year and 17 days. However, this proposal was turned down by UPSC as the relaxation involved was more than 50% of the qualifying service of one year. In view of this the applicant was considered for promotion in the next vacancy year only i.e. 2007-2008. She was finally promoted on 15.05.2007.
3. The contention of the applicant is that had her promotion to the Additional Secretarys grade not been delayed by the respondents, she would have been eligible for the higher grade post in the vacancy year 2006-2007 itself and could have got promoted to that grade one year earlier. This is because she would then have fulfilled the criteria of having 50% of the qualifying service of one year in the Additional Secretary equivalent post and UPSC would not have turned down the proposal for relaxation of qualifying service.
3.1 Learned counsel for the applicant argued that ACCs unconditional approval for promoting the applicant to the Additional Secretary equivalent post had become available to the respondent No.1 on 15.10.2004 yet her orders for promotion were issued only on 17.01.2005. Learned counsel stated that repeatedly DoPandT have issued instructions that orders of ACC should be complied with within 15 days whereas in the instant case the respondents took almost 3 months to do so. In this regard, the applicants counsel has placed on record D.O. No. 28(15)-EO/84(ACC) dated 31.01.1986, O.M. No. 36-36-EO-88(SM.I) dated 27.06.1988 and O.M. No. 27(2)/EO/91(ACC) dated 10.02.1991. Learned counsel argued that the delay on the part of respondent No.1 proved critical for the applicant as her promotion to Additional Secretary level post took place in January, 2005 instead of any date between 15.10.2004 to 31.12.2004. Consequently, the applicant did not have one year service in Additional Secretarys grade as on 01.01.2006. As a result of this she was denied promotion to the Secretaries grade for the vacancy year 2006-2007 and could be promoted only for the vacancy year 2007-2008. Relying on the judgment of a Co-ordinate Bench of this Tribunal given in the case of Sunil Bhattacharya Vs. U.O.I. and Anr., VII2002(2) AISTJ 294, learned counsel argued that promotion of the applicant as Additional Secretary should be ante dated and thereafter a review DPC be convened for ante dating her promotion to Secretary level post as well.
4. In their counter, the respondents have not disputed the facts of the case. They have further stated that ACCs unconditional approval for promotion of the applicant to Additional Secretary level post was received on 15.10.2004. This was subject to the condition that the validity o the panel be extended by DoPandT in relaxation of extant guidelines. Consequently, the department moved the file to DoPandT for validation of the panel. Approval of DoPandT was obtained only on 19.11.2004. Thereafter, the file was submitted to the Honble Minister for Information and Broadcasting for approval of the postings of the officers included in the panel. Ministers approval became available on 15.01.2005 and orders regarding promotion of the applicant were issued on 17.01.2005. The respondents, therefore, stated that there was no delay on their part.
5. We have heard both sides and have perused the material placed on record.
6. Learned counsel for the applicant argued that respondent No.1 was duty bound to comply by ACCs orders within 15 days. Even if this time is counted from 19.11.2004 i.e. the date on which DoPandT gave its approval for validation of the panel, applicants promotion order should have been issued within 15 days of this date. Since the applicant cannot be made to suffer on account of lapsed committed by the respondent No.1, the promotion of the applicant to the Additional Secretary level post should be ante dated. He argued that the action of the respondent No.1 was in violation of the DoPandT OMs. Mentioned above which prescribed the immediate compliance of ACC approval. Applicants counsel cited the decision of Kolkatta Bench of this Tribunal in the case of Sunil Bhattacharya (supra) in his support.
7. On the other hand, the respondents cited the judgment of Honble High Court of Punjab and Haryana at Chandigarh in the case of P.J.S. Trehan Vs. UOI and Anr., (CWP No. 17169-CAT of 2001) dated 28.01.2013 in their support to say that there is no reason to accede to the prayer made by the applicant.
8. We have perused the material placed on record and have also gone through the citations given by both sides.
8.1 In our opinion, while DoPandT OMs quoted by the applicant do prescribe that ACC orders should be complied with immediately preferably within 15 days of their receipt, these orders appear to be passed generally to tone up the administration. They do not appear to have created any right in favour of the persons selected by ACC nor do they mandate that in case of any delay in issuance of these orders the promotions have to be ante dated. In this regard, we find that the judgment of Honble High Court of Punjab and Haryana at Chandigarh in the case of PJS Trehan (supra), relied upon by respondents is very relevant to this case. Operative part of this reads as follows:-
âAfter hearing learned Senior counsel for the petitioner, we are not in a position to accept the submission that the petitioner should have been granted promotion even from an earlier date then the date on which the ACC had approved the panel. No doubt, as per the observations made by the Supreme Court in R.S. Mittals case (supra), the ACC should consider the DPC recommendations within two months, however, if it is not done in a particular case and the ACC approves it on a later date, there is no mandate that such promotions are to be effected from a back date i.e. on the expiry of two months from the date of recommendations of the DPC. Once such a consequence is not envisaged, which is otherwise also impermissible in law, no relief can be granted to the petitioner.â
8.2 We have also gone through the facts of the case of Sunil Bhattacharya (supra) cited by the applicant. We find that in that case relief was allowed by the Tribunal because the DPC had been delayed by several years and because the Court had found the clause relating to atleast three months residual service before retirement as a necessary condition for inclusion of the name in the panel of candidates selected for promotion, to be irrational. No such situation exists in the instant case. In fact, in this case the applicant is praying for accelerated promotion to the Secretary level post after relaxation of the prescribed two years service. Clearly, the facts of the present case are distinguishable from the case of Sunil Bhattacharya (supra) cited by the applicant. In our opinion, the ruling given in that case is not applicable in this case.
9. On the basis of above, we come to the conclusion that the applicants promotion to Additional Secretary level post cannot be ante dated. Consequently, no case is made out for ante dating promotion to Secretary level post either. The O.A. is accordingly dismissed. No costs.