Judgment:
G. George Paracken, Member (J):
The basic grievance of the Applicant in this Original Application is that she has not been considered for promotion to the post of Assistant Legislative Counsel (âALC for short) along with the 5th Respondent, Shri Y.S. Rao in the same DPC and thereby her date of promotion has been advanced. She has, therefore, filed this Original Application seeking the following reliefs:-
â(a) quash and set aside the DPC and its recommendations dt. 17.02.2012, consequently regularization of promotion of the Respondent No.5 as ALC being ineligible and void abs-initio be quashed and set aside;
(b) direct the Respondent Nos.1 to 4 to take appropriate steps to consider the applicant along with the Respondent No.5 in accordance with law for regularization of promotion as ALC for panel year 2012-13; and
(c) grant any other or further order(s) as this Honble Court may deem fit and proper in the facts and circumstances of the case.â
2. The brief background of the case is that both the Applicant as well as the Respondent No.5 were initially appointed as Assistant (Legal) on 06.04.2000 and 09.06.2000 respectively. The 5th Respondent was further promoted as Superintendent (Legal) on regular basis with effect from 08.12.2005 and as ALC (Grade-IV) on ad hoc basis with effect from 26.12.2011. Similarly, the Applicant was also promoted as Superintendent (Legal) on regular basis with effect from 09.01.2006 and further promoted as ALC (Grade-IV) on ad hoc basis with effect from 29.12.2011. He was subsequently made regular in the said post on 24.02.2012.
3. One post of ALC has fallen vacant in the Respondent-Ministry on resignation of Shri Ramawatar Yadav on 02.03.2009 and another post ALC became available due to promotion of Ms. Veena Kothavale with effect from 25.05.2009. As per the existing Indian Legislative Rules (âILS for short) Rules, 1957, 50% of the posts were to be filled up by the direct recruitment and 50% by departmental promotion. Both the Applicant as well as Respondent No.5 were not eligible for promotion to those posts as they did not have the requisite number of years of experience on the feeder post on the aforesaid dates. Therefore, the Respondents-Ministry reported those 2 posts to Union Public Service Commission (âUPSC for short) for filling up by direct recruitment. Later on, Respondent-Department withdrew the aforesaid requisition vide their letter dated 03.05.2010 on the ground that certain amendments to the ILS Rules, 1957 as approved by the Department of Personnel and Training and in consultation with the UPSC was under consideration and the UPSC cancelled their advertisement for the said posts, vide their letter dated 12.2.2011. Subsequently, 2 more vacancies of ALC occurred on 07.10.2010 and 16.12.2011 on account of selection/promotion of 2 ALCs to higher post. Thus, there were total of 4 vacancies of ALCs as on 16.12.2011. Against them, again no promotions could be made as none in the feeder cadre were eligible for consideration for such promotion in terms of the ILS Rules, 1957 and the proposed amendments were not notified yet. Therefore, the Respondents carried forward all those 4 vacancies for the select list year 2012-13 to be filled up under the proposed amended rules. However, first three vacancies got lapsed as per the rules as they remained unfilled for over one year but the Respondents got them revived on 31.1.2012. Meanwhile, the amended Recruitment Rules were notified on 27.12.2011 reducing the requisite residency period as Superintendent (Legal) from 6 years to 3 years for promotion to the post of ALC. However, pending notification of the said amendment, the Respondents proposed the promotion of Shri Y.S. Rao alone for promotion as ALC. When the applicant came to know about it, she made a representation on 20.12.2012 to the Respondent No.2 followed by representation to the Minister of Law and Justice on 09.01.2012, again to Respondent No.2 on 15.02.2012. The submission of the applicant in the aforesaid representations was that she was also entitled to be considered for promotion along with Shri Rao. She has, therefore, requested the Respondents to consider her also for promotion along with Shri Rao after notifying the proposed amended recruitment rules. However, without considering those representations the Respondent-Department got the DPC constituted by the UPSC on 17.02.2012 for promotion to only one post of ALC and accordingly Shri Y.S. Rao was promoted on 24.2.2012. The applicant again made a representation to Respondent No.1 on 29.02.2012 stating that she was in the zone of consideration for promotion to the post of ALC when the Respondents have sent the proposal for consideration of only Shri Rao in the DPC held on 17.02.2012. On the other hand, 4 vacancies of ALC were available on that date and non-reporting of all the vacancies has caused prejudice to her. She has, therefore, requested the Respondents to hold a Review DPC so that she will also get considered. However, vide their impugned Annexure A-1 Note dated 21.3.2012, the Respondent informed her that there was no error in reporting the vacancies to the UPSC for DPC held on 17.02.2012. According to them, all the vacancies mentioned in her representations have occurred prior to the amendment of the Recruitment Rules for ALC in December, 2011 and, therefore, they are required to be filled up as per the provisions of the then existing Recruitment Rules. The said letter reads as follows:-
âWith reference to her application dated 29.02.2012, Smt. Renu Sinha, Assistant Legislative Counsel is informed that there is no error in reporting vacancies to UPSC for DPC held on 17.02.2012. All vacancies referred to in her application occurred prior to amendment of the recruitment rules for the post of ALC in December, 2011 and these vacancies are required to be filled as per the provisions of RRs existing on the date of vacanciesâ.
4. The applicant challenged the aforesaid NOTE dated 21.03.2012 in this Original Application. She relied upon the instructions issued by the Department of Personnel and Training vide OM dated 10.04.1989 read with OM No.22011/2/2002-Estt.(D) dated 06.01.2006 wherein it has been stated that the zone of consideration should have 5 eligible incumbents against one vacancy for the purpose of consideration for promotion and 8 eligible incumbents against 2 vacancies. Therefore, according to the Applicant, consideration of Shri Rao alone for promotion to the post of ALC was against the aforesaid guidelines. She has, therefore, filed this Original Application seeking a direction to quash and set aside the DPC held on 17.02.2012 which considered and recommended Respondent No.5 for promotion as ALC on regular basis. Further, she has sought a direction to take appropriate steps to consider her along with Respondent No.5 in accordance with law for regularization of promotion as ALC for panel year 2012-13.
5. During the pendency of this Original Application, the Applicant has filed Miscellaneous Application No.1967/2012 seeking issuance of direction restraining Respondents No.1 to 3 from issuing any notification or appointment against the remaining 3 vacant posts of ALCs. The contention of the Applicant was that those 3 vacancies have already lapsed since they were vacant for more than a year and thus they have been deemed to have been abolished in terms of OM of DOPandT dated 9th September, 2003. Those 3 vacancies were subsequently revived on 31.01.2012. But the DPC was held on 17.2.2012, i.e., 17 days after said revival and shockingly they were not reported to the UPSC and thereby the DPC had no occasion to consider them. The Applicant has also submitted that the aforesaid procedure followed by the Respondents were not in accordance with the DOPandTs OM dated 10.04.1989, according to which, âwhere for reasons beyond control, the DPC could not be held in a year(s), even though the vacancies arose during that year (or years), the first DPC that meets thereafter should follow the following procedures:-
â(i) Determine the actual number of regular vacancies that arose in each of the previous year(s) immediately precedingâ.
6. The respondents in their reply have submitted that there were 13 posts of Assistant Legislative Counsel (Grade IV of India Legal Service) in the Legislative Department. As per the Indian Legal Service Rules, 1957, a duty post in Grade IV of the service shall be filled by promotion and by direct recruitment in the ratio of 1:1 (namely, 50% by promotion and 50% by direct recruitment). In the year 2009, two posts of Assistant Legislative Counsel fell vacant consequent upon resignation of one incumbent on 2nd March, 2009 and promotion of the another incumbent on 25th May, 2009. As none of the officers in the feeder grade of Superintendent (Legal) and Confidential Superintendent had completed the qualifying service of six year in the grade as required under the Recruitment Rules at the material point of time, it was decided to fill up both those posts by direct recruitment and, accordingly, they were reported to the UPSC. The Superintendents (Legal) in the Department represented against the diversion of promotion quota to direct recruitment quota and requested to amend the Recruitment Rules for reducing the qualifying service so as to enable them to be considered for promotion to the posts of Assistant Legislative Counsel. Their representations were examined in the Department and decided to amend the Recruitment Rules accordingly and withdraw the two vacancies which had already been reported to the UPSC for direct recruitment so as to fill up them on the basis of the amended recruitment rules. The amended recruitment rules were finally notified in the official Gazette of India vide their letter dated 27.12.2011. In the meantime, two more posts of Assistant Legislative Counsel fell vacant with effect from 07.10.2010 and 16.12.2011 consequent upon the appointment of one of its incumbents, Shri Diwakar Singh to the post of Deputy Legislative Counsel and promotion of another incumbent Shri Ramisetty Sreenivas to the next higher grade respectively. Out of those four vacancies occurred prior to the notification of the amended recruitment rules, three vacancies were more than one year old and came under the purview of deemed abolition in terms of Department of Expenditure OM dated 9th September, 2003. As those four vacancies fell vacant prior to notification of the amended recruitment rules, they were to be filled as per the provisions of the unamended recruitment rules in force at the time of the occurrence of the vacancies. As per the provisions of the then existing recruitment rules, none of the officers in the feeder grade had the requisite qualifying service of 6 years as on the crucial date of determination of the vacancy for being considered for promotion to the posts of Assistant Legislative Counsel. However, a vacancy in the grade of Assistant Legislative Counsel became available after notifying the amended recruitment rules during the recruitment year 2011-12 consequent upon retirement of yet another incumbent, Shri Mahender Kumar on 31.01.2012. They have, therefore, sent a proposal containing the names of Shri Y.S. Rao, Smt. Renu Sinha (applicant), and Shri T.S. Muralidharan, Superintendents (Legal) who completed the requisite qualifying service as per the provisions of the amended recruitment rules as on the crucial date of determination of the vacancy to the UPSC on 31.01.2012. The Departmental Promotion Committee in its meeting held on 17.02.2012 recommended the name of Shri Y.S. Rao for promotion and he was accordingly appointed to the post of Assistant Legislative Counsel with effect from 24.02.2012. In the meanwhile, on 31.01.2012 they received the approval Department of Expenditure for revival of the three deemed lapsed posts. Along with them, the vacancy occurred prior to the amendment of the recruitment rules i.e. 16.12.2011 (altogether 4) were carried forward to the recruitment year 2012-13 and a proposal to promote the next senior two Superintendents (Legal) namely, Smt. Renu Sinha(the applicant) and Shri T.S. Muralidharan who had completed the requisite qualifying service as per the amended recruitment rules were sent to the UPSC on 26.04.2012. Simultaneously, the other two vacancies of the recruitment year 2012-13 along with an anticipated vacancy for the same year came under direct recruitment quota have also been reported to UPSC. This according to the Respondents, they have acted in accordance with the laid down rules and procedures on the subject and there were no violations of any rule or procedure as alleged by the Applicant.
7. In the rejoinder affidavit, the Applicant has submitted that the DOPandTs OM dated 08.09.1988 read with OM dated 13.10.199 and OM dated 11.03.2011 lay down the crucial date of eligibility as Ist January of the vacancy year irrespective of whether the vacancy year commences from Ist January or Ist April or from any other date, unless otherwise provided for in the statutory Recruitment Rules but the Respondent department did not hold the meeting for remaining 4 posts including three posts which have been revived prior to the date of holding the DPC i.e., 17.02.2012 and intentionally held the DPC for those 4 posts after a long period of time.
8. The learned counsel for the Applicant has also relied upon the judgment of the Apex Court in Union of India Vs. N.R. Banerjee and Others 1997 (9) SCC 287 wherein it was held as under:-
â8. Crucial date for determining eligibility has been dealt with thereunder. By an amendment brought w.e.f. July 19, 1989, it is stated that relevant dates for determining eligibility of the officers for promotion would be, where A. C. Rs. are written calendar yearwise, 1st July of the year and where the A. C. Rs. are written financial yearwise, 1st October of that year. The other details prescribed in Chapter IV are not material for the purpose of this case. Part (para) 6.4.1 deals with preparation of yearwise panels by D. P. C. which reads as under :
"Where for reasons beyond control, the DPC could not be held in year(s), even though the vacancies arose during that year (or years), the first DPC that meets thereafter should follow the following procedures :
(i) Determine the actual number of regular vacancies that arose in each of the previous year(s) immediately preceding and the actual number of regular vacancies proposed to be filled in the current year separately.
(ii) Consider in respect of each of the years those officers only who would be within the field of choice with reference to the vacancies of each year starting with the earliest year onwards.
(iii) Prepare a 'Select list' by placing the select list of the earlier year above the one for the next year and so on.â
9. The Respondents in their additional reply affidavit stated that the OA itself has become infructuous as the Applicant along with Shri T.S. Murlidharan have already been appointed as ALC with effect from 18.08.2012. They have also submitted that when Respondent No.5 Shri Y.S. Rao was earlier appointed to the post of ALC by the DPC held on 17.02.2012, along with him, Applicant and Shri T.S. Murlidharan were also considered. Since the respondent No.5 was the senior-most amongst them, he was recommended for appointment and accordingly he was appointed as ALC. Moreover, no one junior to the applicant has also been promoted as ALC. Therefore, according to them, no injustice was done to the Applicant as alleged.
10. The UPSC in their reply through Shri Rajinder Nischal, submitted that a DPC meeting was held in the Commissions office on 17.02.2012 to consider promotion of an officer to the post of Assistant Legislative Counsel (Grade IV of Indian Legal Service), against one (01) vacancy pertaining to the year 2011-12. The lone vacancy reported by the administrative Ministry to the DPC was a vacancy arisen on 31.01.2012 on account of retirement on superannuation of an Officer named Shri Mahender Kumar on 31.01.2012. Three (03) Officers formed the zone of consideration on the crucial date of 01.01.2011 for the vacancy year 2011-12 in terms of the provisions contained in the DOPandT guidelines with regard to determining the eligibility. The private respondent No. 5 was included in the eligibility list at Sl. No. 1, the applicant in the present OA was at Sl. No. 2 and Shri T. S. Muralidharan was at Sl. No. 3. None of the above three officers were clearly eligible under the primary clause of the eligibility criteria but they became eligible under the failing which clause of eight years combined service in the post of Assistant (legal) and Superintendent (Legal) out which three years regular service was in the grade of Superintendent (Legal). The DPC assessed the senior-most officer i.e. the private respondent No. 5 in the present OA as âFit and the remaining two officers were not assessed in terms of the guidelines issued by the DOPandT in its OM No. 35034/7/97-Estt. (D) dated 08.02.2002. Â A fresh proposal for convening a meeting of the DPC to consider promotions to the post of ALC against two promotion quota vacancies for the year 2012-13 has been received from Respondent No. 1 in the month of April, 2012. The respondent No. 1 has intimated that the two vacancies reported by the Ministry for the year 2012-13 pertain to earlier years which had undergone deemed abolition and have been revived with the approval of the Ministry of Finance, Department of Expenditure on 31.01.2012. The applicant in the present OA and another officer junior to her were the two senior-most officers in the zone of consideration for the two vacancies of the year 2012-13 and the DPC recommended their names in its meeting held on 06.07.2012.
11. The Respondent No.5, Shri Y.S. Rao adopted the arguments of the Respondent Department and the Respondent-UPSC.
12. We have heard the learned counsel for the Applicant, Shri Kaishav Kaushik with Ms. Ambika Singh and Mrs. Amita Pratap Singh and the learned counsel for respondents No.1, 2 and 4, Shri Rajesh Katyal and the learned counsel for respondent No.3, Shri Rajinder Nischal. It is appropriate to note the relevant facts in this case once again and they are the following:-
â(i) According to Indian Legal Service Rules, 1957, 50% of the vacancies in the posts of ALC was to be filled up by promotion and balance 50% by direct recruitment.
(ii) 2 vacancies of ALC under promotion quota occurred on 02.03.2009 and on 25.05.2009 but since there were no eligible persons in the feeder cadre, Respondent-Department reported them to UPSC for direct recruitment.
(iii) As the amended to the said Recruitment Rules was under way to make persons belonging to the feeder cadre of Superintendent (Legal) with lesser number of years of service eligible, the Respondent-Department withdrew the aforesaid requisition on 26.04.2010. Thereafter, one more post of ALC became vacant from 07.10.2010.
(iv) The relevant amendments in the Indian Legal Service Rules, 1957 were carried out on 27.12.2011.
(v) Both the Applicant and Respondent No.5 thus became eligible to be considered for promotion as ALC under the amended recruitment rules.
(vi) Two more vacancies of ALC occurred on 16.12.2011 and 31.01.2012.
(vii) By the time the Recruitment Rules were amended, the vacancies occurred on 02.03.2009, 25.05.2009 and 07.10.2010 got lapsed but they were revived on 31.01.2012 and carried for the year 2012-13.
(viii) On 31.01.2012 itself the Respondents-Department sent a proposal to the UPSC for filling up the last vacancy alone first.
(ix) The UPSC in its meeting held on 17.02.2012 considered the Applicant and her immediate juniors Shri T.S. Muralidharan along with the 5th Respondent and recommended the name of the 5th respondent who was senior-most among them for promotion as ALC against the said vacancy and he was accordingly appointed on 24.02.2012.
(x) In April, 2012, the Respondent-Department sent a fresh proposal to fill up 2 promotional quota vacancies for the year 2012-13 which have undergone deemed abolition and subsequent revival by the Department of Expenditure on 31.01.2012.
(xi) The UPSC held the DPC to consider the proposal on 06.07.2012 and recommended the next two senior-most Superintendent (Legal) namely the Applicant and Shri T.S. Muralidharan for promotion as ALCs and they were accordingly promoted with effect from 18.08.2012.
13. Â Now question for consideration is that after the amendment of the Recruitment Rules on 27.12.2011, when there were admittedly three vacancies under the promotion quota belonging to the select list year 2011-12, whether the Respondent-Department was justified in filling up only one post of ALC first and fill up the other two vacancies after a gap including them in the next select list year or not. In other words, whether those vacancies were to be segregated as vacancies for the years 2011-12 and 2012-13
14. Admittedly, the sanctioned strength of the ALCs in the Respondent-Legislative Department was 13. The method of recruitment for the aforesaid posts is by direct recruitment and promotion in the ratio 1:1. It was due to non-availability of eligible candidates for promotion as per the unamended Recruitment Rules, two promotion quota posts of ALCs fell vacant during the vacancy years 2008-2009 and 2009-2010 on 02.03.2009 and 25.05.2009 respectively were decided to be filled up by Direct Recruitment on 28.10.2009. However, considering the fact that as against 50% promotees out of 13 posts, there were only 2 promotees, on 03.05.2010 the Respondent-Department withdrew their requisition already sent to UPSC to fill up those two posts by direct recruitment. Thereafter three more posts of ALCs fell vacant on 07.10.2010, 16.12.2011 and on 31.01.2012. In the meantime, the Recruitment Rules got amended on 27.12.2011. Thus, out of those 5 posts, four posts have fallen vacant before amendment and only one post fell vacant after the amendment. Therefore, the crucial date in this case is 27.12.2011 and on that there was only one vacancy which has occurred on 16.12.2011 was available. The said post was meant for direct recruitment. But three posts, being more than a year old as on 27.12.2011 and went into deemed abolition were got revived on 31.01.2012. On that date itself one more vacancy of ALC was occurred. Thus, as on 31.01.2012, there were five clear vacancies of ALCs and all of them belonged to the vacancy year 2011-12. In other words, on 31.01.2012 when the Respondent-Department sent the proposal to fill up the only vacancy occurred on the same date, the lapsed three posts occurred on 02.03.2009, 25.05.2009 and 07.10.2010 were actually available. Therefore, there was no justification on the part of the Respondents in carrying forward those two vacancies to the vacancy year 2012-13 while retaining only one vacancy occurred on the same date for the vacancy year 2011-12. Even if, the Respondent-Department could not or did not send the proposal for all the available posts on the same date, i.e., 31.01.2012 for whatever reasons, we find no justification for them to delay the matter for 3 months to request the UPSC to hold the DPC (they sent the requisition only on 27.02.2012) and got them filled up as vacancies of the select list year 2012-13. They could have very well reported the two more vacancies any time before the date of DPC, i.e., 17.02.2012. At least they should have kept the UPSC informed about it.
15. In our considered view, the reason given by the Respondents is segregating the five vacancies physically available on 31.01.2012 as vacancies for the select list years 2011-12 and 2012-13 is absolutely unlawful and, therefore, untenable. In fact, it was against the whole endeavour of the Respondent department not to fill up the posts of ALC anymore under the unamended recruitment rules so as to give early promotional avenues for the departmental candidates who could not fulfill the qualifications prescribed therein. It is only for that purpose, they have even withdrawn the requisition sent to the UPSC, on 26.04.2010. Thereafter, they also do ensure that the Recruitment Rules are amended and the amended Rules are notified on 27.01.2011. In any case, irrespective of the dates of occurrence of the vacancies, whether prior to the amendment or after, all the vacancies which have occurred from 02.03.2009 onwards have been filled up only by the amended recruitment rules. In spite of the aforesaid position, justifying their action in not filling all the 3 vacancies available to them under promotion quota in the same recruitment year 2011-12, in the impugned order, the Respondents have given an absolutely extraneous reason that all those 3 vacancies âoccurred prior to amendment of the Recruitment Rules for the post of ALC in December, 2011 and those vacancies are required to be filled as per the provisions of RRs existing on the date of vacancies. But the actual fact in this case is all the posts have been filled actually on the basis of the amended rules and not on the basis of the unamended rules as claimed by the Respondents. Therefore, the Respondent-Department should have filled up all those vacancies in accordance with the amended Recruitment Rules in the recruitment year 2011-12 starting from the first available vacancy. Instead, as stated above, for strange reasons, the Respondent-Department started with the last vacancy by sending the proposal to the UPSC for filling up only one vacancy on 31.01.2012. The UPSC has also in its affidavit admitted that the Respondent notified only one vacancy for the year 2011-12 and that is why they selected only the Respondent No.5 who was the senior-most eligible person. Therefore, it is seen that the Respondent-Department under reported the number of vacancies for the recruitment year 2011-12 to facilitate the selection and appointment of the 5th Respondent from an earlier date when he would have otherwise also got selected first.
16. It is seen that in Part-III of the guidelines issued by Government dealing with Functions and Composition of the Departmental Promotion Committee, it has been prescribed as under:-
âIt is essential that the number of vacancies in respect of which a panel is to be prepared by a DPC should be estimated as accurately as possible. For this purpose, the vacancies to be taken into account should be the clear vacancies arising in a post/grade/service due to death, retirement, resignation, regular long term promotion and deputation or from creation of additional posts on a long term. As regards vacancies arising out of deputation, only those cases of deputation for periods exceeding one year should be taken into account, due note, however, being kept also of the number of the deputationists likely to return to the cadre and who have to be provided for. Purely short term vacancies created as a result of officers proceeding on leave, or on deputation for a shorter period, training etc., should not be taken into account for the purpose of preparation of a panel. In cases where there has been delay in holding DPCs for a year or more, vacancies should be indicated year-wise separately."
17. In Syed Khalid Rizvi Vs. Union of India 1993 Supp.(3) SCC 575, the Apex Court held as under:-
âWe, therefore, hold that preparation of the select list every year is mandatory. It would subserve the object of the Act and the rules and afford an equal opportunity to the promotee officers to reach higher echelons of the service. The dereliction of the statutory duty must satisfactorily be accounted for by the State Government concerned and this Court takes serious note of wanton infraction."
18. Again in Union of India and Others Vs. N.R. Banerjee and Others 1997 (9) SCC 287 the Apex Court held as under:-
â11. It would thus be seen that the claims of the candidates eligible have to be considered for promotion objectively and dispassionately, with a sense of achieving many-fold purpose, (1) affording an opportunity to an incumbent to improve excellence, honesty, integrity, devotion to public duty; (2) inculcating discipline in service; (3) afford opportunity to every eligible officer within zone of consideration for promotion to higher post or officer (sic); and (4) ensuring that the Committee regularly meets and considers their claim objectively, impartially with high sense of responsibility in accordance with the procedure and finalisation of the list in advance so as to fill up vacancies arising in the year from the approved panel without any undue delay. They are the salutory principles, purpose and the policy behind the above rules and the Government should follow themâ.
19. Further, in para 6.4.1 of the guidelines, it has been stipulated as under:-
âPreparation of Year-wise panels by DPC where they have not met for a number of years:-
6.4.1. Where for reasons beyond control, the DPC could not be held in a year(s), even though the vacancies arose during that year (or years), the first DPC that meets thereafter should follow the following procedure:-
Determine the actual number of vacancies that arose in each of the previous year(s) immediately preceding and the actual number of regular vacancies proposed to be filled in the current year separately.
Consider in respect of each of the years those officers only who would be within the field of choice with reference to the vacancies of each year starting with the earliest year onwards.
Prepare a âSelect List by placing the select list of the earlier year above the one for the next year and so onâ.
20. Of course, as held by the Apex Court in K. Madhavan and Another Vs. Union of India and Others 1987 (4) SCC 566, nobody can claim for promotion to a post as a matter of right. But at the same time, the Respondents were expected to keep in mind that an employee has a right of consideration for promotion as held by the Apex Court in State of M.P. Vs. J.S. Bansal JT 1998 (1) SC 514. The right of consideration to a Government service will become meaningful only when he is considered in accordance with the rules. Again, as held by the Apex Court in State of Uttar Pradesh Vs. Singhara Singh and Others AIR 1964 SC 358 and Babu Verghese and Others Vs. Bar Council of Kerala and Others 1999 (3) SCC 422 âif the manner to do a particular work is prescribed in a statute, the act must be done in that manner only. To avoid any prejudice, ambiguity and arbitrariness, the Government of India has prescribed the procedure to hold DPC in its various Office Memoranda and the Respondents are bound by them.
21. In view of the facts, circumstances and case law discussed above, we do not find merit in the Ist relief sought by the Applicant in this OA to set aside the appointment of Respondent No.5 as ALC. However, we do find merit in the 2nd relief sought by the Applicant to direct the Respondents to consider her along with the Respondent No.5 for promotion as ALC. The official respondents including the UPSC should have considered Respondent No.5, the Applicant and any other persons similarly situated for promotion together from the panel year 2011-12. Since the same has not been done, we direct the Respondents to prepare the revised eligibility list for the recruitment year 2011-12 including the names of the Applicant and other eligible persons and hold a review DPC as on 17.02.2012 within a period a 2 months from the date of receipt of a copy of this order. If the Applicant and other similarly placed persons are found eligible to be promoted from the date the 5th Respondent has been promoted, they shall be promoted accordingly, with all consequential benefits. Since the Applicant has already been working as ALC on ad hoc basis w.e.f. 29.12.2011, there is no question of payment of any back wages.
22. In terms of the aforesaid directions, this OA is partly allowed. There shall be no order as to costs.