Shekhar Agarwal, Member (A)
MA-1227/2012 filed for joining together in one application is allowed.
2. The applicants have sought the following relief:-
â(a) To declare the action of respondents in not fixing the seniority of applicants inspite of order of this Honble Tribunal and promoting their juniors as DASS Grade-I as illegal, arbitrary and unconstitutional.
(b) To direct the respondents to fix the seniority and pay of the applicants as Grade-II (DASS) at par with their batchmates and juniors appearing at SI No. 6691, 6556, 6532, 6508 and 6610 respectively of the Seniority list of DASS Grade-II and consider them for promotion to Grade-I DASS from February, 2011 with all consequential benefits including arrears of pay.
allow the OA with cost.
To pass such other and further orders which their lordships of this Honble Tribunal deem fit and proper in the existing facts and circumstances of the case.â
3. During the pendency of the O.A. the seniority of the applicants was fixed to their satisfaction, hence relief relating to promotion from the dates their juniors were promoted with all consequential benefits alone was pressed.
4. Brief facts of the case are that the applicants appeared for appointment to the post of Grade-II (DASS) in the year 2002. On 10.01.2003 the result of general category, ex-servicemen and physically handicapped was declared. Subsequently, on 03.09.2003, 22.03.2004 and 02.05.2005 results of SC/ST and OBC categories were also declared. For some reason the results of the applicants were not declared. Finally, on intervention of the Honble High Court of Delhi the result of the applicants was also declared on 10.12.2007. However, despite declaration of the result the applicants were not given appointment letters. Consequently, they approached this Tribunal. Their OAs were allowed with directions to the respondents to issue appointment letters immediately. As a result of the order, the applicants were appointed on 12.08.2009. The applicants continued to represent to the respondents for fixation of their seniority. However, no action was taken. On 07.02.2011 the respondents promoted some of the juniors of the applicants completely ignoring their claims. Applicants again submitted their representations for fixing their seniority at appropriate place giving them promotion from the dates their juniors were given. Since no action was taken on their representation they have preferred this O.A. before us.
5. As mentioned before during the pendency of the O.A. the respondents vide their order No. F.55/37/2012/S-I/414 dated 29.01.2013 fixed the seniority of the applicants. In the same order they have stated that promotion to Grade-I of DASS is to be done from amongst those eligible Grade-II (DASS) officials who have completed six years of regular service in Grade-II. Further, the respondents have mentioned that in the DoPandT O.M. No. 14017/12/88-Estt.(RR) dated 25.03.1996 it has been stipulated that âwhere junior who have completed their qualifying/eligibility service are being considered for promotion, their seniors would also be considered, provided that they are not short of the requisite qualifying or eligibility service by more than half of such qualifying/eligibility service or two years, whichever is less, and have successfully completed the probation period for promotion to the next higher grade along with their juniors who have already completed such qualifying/eligibility service. On the basis of this, the respondents have come to the conclusion that the applicants were not eligible for consideration for promotion to Grade-I of DASS.
6. The applicants have sought relief for promotion on the following grounds:-
(i) The respondents have acted in violation of Articles 14 and 16 of the Constitution of India as they have promoted juniors of the applicants.
(ii) The respondents cannot be permitted to take advantage of their own wrong committed by delaying the appointment of the applicants without any reason.
(iii) The applicants have been subjected to financial as well as service loss.
(iv) The applicants cannot be put to loss for no fault on their part.
(v) The respondents have created a class within a class amongst the selectees of the same selection process.
(vi) The respondents have acted contrary to the principle of legitimate expectation.
7. In their counter, the respondents have stated that the O.A. had been filed seeking fixation of seniority as well as promotion. The seniority of the applicants has since been fixed vide order dated 09.10.2012. Regarding promotion the respondents have mentioned that the applicants have joined Grade-II of DASS only in August, 2009 and have challenged the promotion order dated 07.02.2011. On that date the applicants had not even completed their probation.
8. We have heard both parties and perused the material placed on record.
9. Learned counsel for the applicants argued that the appointment letters to the applicants were issued several years after their other batchmaates had been appointed. The delay was not due to any lapse on the part of the applicants but due to own lapses of the respondents. He argued that for wrong committed by the respondents the applicants cannot be made to suffer and they are entitled to all benefits of seniority, pay fixation and promotion. Now that the seniority of the applicants has also been fixed, they should be given promotion from the date of their juniors with all consequential benefits. He argued that the contention of the respondents that the applicants have not put in the required years of regular service is not tenable since the applicants were denied appointment due to the fault of the respondents themselves. In this regard he relied on the judgment of Honble Supreme Court in the case of UOI and Ors. Vs. K.B. Rajoria, (2000) 3 SCC 562 in which it was held as follows:-
â9. Second, the High Court erred in not dismissing the writ petition on the ground of the obvious lack of locus standi in Rajoria who had never been granted notional promotion because the DPC was not in fact held for reasons which the High Court felt were unavoidable. Rajoria's case was built on hypothetical situations, and his position could not reasonably be equated with that of Krishnamoorti.
10. Third, the High Court erred in construing the words 'regular service in the grade' as actual physical service. If that were so, then an ad hoc appointee who actually serves in the post could also claim to be qualified to be considered for the post of Director General. The High Court itself held that 'ad hoc service rendered by any of the parties would not count towards eligibility".
11. Finally, while considering the definition of the word 'regular' in the Concise Oxford Dictionary, Ninth Edition, the High Court noted that it meant :
"(1) conforming to a rule or principle, systematic; (2) harmonious, symmetrical; (3) acting or done or recurring uniformly or calculably in time or manner, habitual, constant, orderly; (4) conforming to a standard of etiquette or procedure, correct, according to convention; (5) properly constituted or qualified, not defective or amateur, pursuing an occupation as one's main pursuit."
20. Note 1 leaves no room for doubt that the word "service" means "qualifying service", and Note 2 makes it clear that in case of supersession actual service for the prescribed period is not required. This is in keeping with para 18.4.3 of the O.M. quoted earlier. As the notional date of promotion of Krishnamoorti was 22-2-95 he was eligible to be considered for the post of Director General in 1999.â
Further, he relied on the judgment of Honble Supreme Court in the case of Pilla Sitaram Patrudu and Others Vs. UOI and Ors., (1996) 8 SCC 637 in which it was held that the direct recruit whose appointment was delayed for no fault on his part but due to laches on the part of the department was entitled to appointment according to the rules and the plea to treat him not having the requisite length of service for promotion by computing the same from the date of joining was rejected. Learned counsel also relied on the judgment of Honble High Court of Delhi in the case of Harvinder Singh Vs. UOI and Ors., (WP(C)-8672/2010) decided on 18.09.2012.
10. Respondents counsel, on the other hand, argued that DoPandT O.M. dated 18.03.1988 lays down as follows:-
âWhere juniors who have completed their qualifying/eligibility service are being considered for promotion, their seniors would also be considered provided they are not short of the requisite qualifying/eligibility service by more than half of such qualifying/eligibility service or two years, wherever is less and having successfully completed their probation to the next higher grade alongwith their juniors who have already completed such qualifying/eligibility service.â
Since the applicants joined DASS-II only in 2009, in terms of this O.M. they were not eligible for promotion to Grade-I. He also relied on the judgment of Honble Supreme Court in the case of R. Prabhadevi and Ors. Vs. UOI, (2008) 14 SCC 29 in which it has been held as follows:-
âSeniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfils the eligibility condition prescribed by the relevant rules. A person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be considered for promotion. Seniority will be relevant only amongst persons eligible. Seniority cannot be substituted for eligibility nor it can over-ride it in the matter of promotion to the next higher post.â (Emphasis supplied)
11. We have considered the arguments of both sides. It is not disputed that the applicants who appeared in the 2002 examination were appointed many years after their other batchmates had been appointed. The delay occurred only on the part of the respondents for which the applicants are not to be blamed. Hence to us it appears that denying them further promotion now on the grounds that they had not possessed requisite years of service, is adding insult to injury. Instead of setting right the wrong done to the applicants, the respondents are further perpetuating it. In our opinion, as has been laid down by Honble Supreme Court in the case of Pilla Sitaram Patrudu (supra) the applicants should be considered for promotion by notionally counting their service from the date their juniors joined rather than counting it from the date on which they actually joined themselves. In the case of K.B. Rajoria (supra) the Honble Supreme Court has clearly made a distinction between regular service and actual service. Thus while the applicants may not possess actual service on account of their joining late, their regular service should be counted notionally from the date their juniors had joined.
12. Regarding the case of R. Prabhadevi (supra) relied upon by the respondents, we find that the facts of that case are clearly distinguishable from the facts of the instant case. In the case of R. Prabhadevi the Honble Supreme Court was concerned with dispute between direct recruit and promotee SOs where the direct recruit had got benefit of seniority on the basis of rota quota rule but did not have adequate service for promotion to the next grade. In that case the direct recruits had not been deprived of their entitlements by any delay or laches on the part of the UOI. Hence, in our opinion, this judgment would not be applicable in the instant case where the applicants were deprived of joining service for several years by the respondents.
13. Resultantly, this O.A. succeeds. The respondents are directed to consider the applicants for promotion to Grade-I of DASS from the dates on which their immediate juniors were promoted. The applicants will also be entitled to consequential benefits and arrears of pay. This consideration will be done within a period of eight weeks from the date of receipt of a certified copy of this order. No costs.