Full Judgment
(2) Direct the respondents to restore the pay of the applicant at Rs. 22925/- p.m. w.e.f. 3.2.2003, refund the recoveries made, as will be the necessary outcome of (i) above and issue orders for payment of salary, including dearness allowance and all other related financial benefits, with interest on the basis of new pay w.e.f. 3.2.2003 till the date of superannuation.
(3) Direct the respondents to restore the pension of the applicant as well as the family pension @ 11382/ p.m. and the commutation amount to Rs. 5,35,862/ as granted vide their Pension Pay Order (PPO) No. C/FYS/17653/2003 dt. 6.5.2003.
(4) Direct the respondents to pay leave encashment amount on the basis of basic pay of Rs. 22925/- and also orders to pay monthly dearness allowance on the basis of the pension of Rs. 11382/- p.m.
(5) Direct the respondents to promote officers to the vacant post from the date of occurrence of vacancy, if a decision has been taken to fill up the vacancies, but delays at various levels deprive some individuals the promotion while resulting in timely promotion to some, thus resulting in discrimination.
(6) The Hon'ble Tribunal may be pleased to summon the relevant records as may be required in the interest of justice, equity and fair play.
(7) Any other writ/order/direction which this Hon'ble Tribunal may deem fit and proper be also issued.
2. The facts as stated by the applicant are that he started his career as Assistant Manager in the Ordnance Factory Board Organisation on initial appointment w.e.f. 18.11.67 and due to dint of his hard work and meritorious achievements, was promoted to various ranks including Dy. Manager, Dy. General Manager, Dy. General (NF), and Addl. General Manager in the Senior Administrative Grade carrying pay scale of Rs. 18400-22400/- w.e.f. 1.10.1991. He was further promoted to the rank of General Manager and posted to Ordnance Equipment Factory, Hazaratpur, which post, he joined w.e.f. 15.5.2002. Later on, he was transferred to Ordnance Equipment Factory, Kanpur w.e.f 7.8.2002. Based upon the recommendation of Departmental Promotion-Committee, duly approved by the ACC, vide order dated 30.1.2003 (Annexure A-1), the applicant was promoted as Senior General Manager/Ordnance Factory, Kanpur, which post was carrying a pay scale of Rs. 22400-24500/-. He assumed the duties and responsibilities of the higher post w.e.f 3.2.2003. Accordingly his pay was fixed at Rs. 22925/- vide order dated 11.3.2003 (Annexure A-4).
Since he was to attain the age of superannuation on 31.8.2003 and last 10 months average basic pay had been the criteria for calculating pension/family pension, action was initiated by the concerned authority to fix his pension/family pension based on basic pay of Rs. 22925/- p.m.
3. All of a sudden, without affording any opportunity and without giving him any show cause notice, the respondents passed an order dated 2.4.2003 (Annexure A-6), received by the applicant on 7.4.2003, reverting him retrospectively to Senior Administrative Grade w.e.f.
1.2.2003. Consequently his pay was reduced from the pay scale of Rs. 22400-24500 to Rs. 18400-22400/-. No reason was assigned in the said impugned order dated 2.4.2003 except to state that the same was based upon the recommendations of Review DPC in terms of judgment rendered by this Tribunal, Jabalpur Bench in O.A. Nos. 775/95 and 774/95, dated 19.2.2001 and 20.2.2002 respectively.
4. The applicant who appeared in person contended that due to the aforesaid reversion he has suffered not only monetarily but in status too. Basically following contentions were advanced: (1) No show cause notice was issued by the respondents prior to passing reversion order dated 2.4.2003. (2) The retrospective reversion is not permissible.
Even if the applicant was to be reverted retrospectively, though disputed, he could not be deprived the salary attached to the post, for the period he had functioned. It is contended that he had discharged the functions attached to higher post of Senior General Manager during the period from 3.2.2003 to 7.4.2003 and therefore the pay and allowances for the said period could not be denied. For this purpose reliance was placed on Bhagwan Singh v. State of Punjab and Ors., 2000 SCC(L&S) 185, holding that even in case of invalid appointment, salary or emoluments for the said post already received cannot be recovered.
(3) The next contention raised by the applicant was that the respondents recovered the pay and allowances attached to the post of Senior General Manager, which is violative of law laid down by Hon'ble Supreme Court in 1998 SCC (L&S) 1127 Selvaraj v. Lt. Governor of Island, Port Blair and Ors..
5. Another contention raised by the applicant was that though he had submitted representation to the concerned authorities against the said reversion on 7.4.2003 (Annexure A-8), the same was not considered objectively and fairly. Further, despite the fact that vacancy in the said cadre arose on 1.4.2003 upon retirement of one Shri B.V. Rastogi on 31.3.2003, the DPC which placed the applicant in the panel for the year 2002-2003 should have kept alive atleast for one and half years from the said date, yet the applicant was reverted without considering the said aspects. On the other hand, the applicant's aforesaid representation was rejected by the respondents vide communication dated 26.5.2003 in a perfunctory manner by stating that vacancy arose due to retirement of Shri B.V. Rastogi fell in the year 2003-04 for which approved panel for promotion to member and also Senior General Manager were not yet available and hence OFB had got no power to promote him.
6. It is further urged by the applicant that the applicant was discriminated and not considered by the respondents for promotion against the vacancy of Shri V.B. Rastogi, despite the fact that he attained the age of superannuation on 31.8.2003. Therefore the action of the respondents violated the law so settled in Union of India and Ors. v. N.R. Banerjee.
7. The further contention raised by the applicant was that because of discriminatory and illegal approach adopted by the respondents, his name was not even considered for promotion and consequently not placed in the panel for the post in question though DPC was held during the pendency of the present application in November, 2003.
8. The respondents contested the above claim of the applicant by stating that the applicant's reversion was caused due to the implementation of the judgment rendered by this Tribunal in cases filed by one Shri L.C. Chaudhry. The writ petition filed against the judgment of Jabalpur Bench was dismissed on 4.4.2002 and as such there arose the necessity to hold the review DPC, which was conducted on 30.12.2002 for the post of Senior General Manager in respect of Shri L.C Chaudhry.
Approval of ACC was obtained to promote Shri L.C. Chaudhry w.e.f.
28.6.2002, the date on which his junior Shri Vijayan Shankar was promoted to the said grade. Since there was only 11 sanctioned posts in the grade of Sr. GM, there had been no vacancy to accommodate the applicant and accordingly reverted. The DPC for Sr. GM. for the year 2003-2004 was delayed due to unforseen circumstances and the select panel for the said year was not ready until the applicant's date of superannuation. The applicant was placed in the panel for the year 2002-2003 as a last candidate. Being the junior most incumbent in the panel for 2002-2003, the applicant was reverted. The allegation of vindictiveness or mala fide action etc., were denied by the respondents. Since the order passed by this Tribunal at Jabalpur were implemented to consider Shri L.C. Chaudhry, no show case notice was required to be issued as the department was duty bound to consider Shri L.C. Chaudhry, who had been senior to the applicant.
9. The applicant by filing the rejoinder as well as written arguments disputed the contentions raised by the respondents, while reiterating the submissions made by him.
10. We heard the applicant in person as well as learned Counsel for the respondents at length and perused the pleadings.
1. Whether the impugned order dated 2.4.03, reverting the applicant retrospectively w.e.f. 1.2.2003 is legally valid.
2. Whether the reversion order could have been passed without following the principles of natural justice.
3. Whether the respondents were justified in recovering the pay and allowances attached to the post of Sr. General Manager, as the applicant had admittedly discharged the functions of the said post from 3.2.2003 till 7.4.2003.
4. Whether the respondents were not required to pass speaking order rejecting applicant's representation, vide communication dated 26.5.2003 and 5. Whether the respondents were justified in not considering the applicant's case for promotion in a DPC which was held after the applicant's retirement on 31.8.2003.
12. As far as the first and second issues noticed herein above are considered, the same are interlinked. It is admitted case of the parties that the applicant's promotion order dated 31.1.2003 as well as order dated 6.2.2003 clearly indicated that the applicant's promotion was "subject to the outcome of the Review DPC for Sr. GM and also to the outcome of other pending cases in various CATs/other Courts." 13. It is also an admitted fact that the impugned order by which the applicant was reverted in specific noticed that the Review DPC was held pursuant to the judgment rendered by this Tribunal, Jabalpur Bench and Shri L.C. Chaudhry was ordered to be promoted w.e.f. 4. 7.2002 the date on which when his junior Shri Vijayan assumed the higher charge to the post in question. It is also an admitted fact that the sanctioned strength to the cadre in question was only 11 and after promotion of Shri L.C. Chaudhry, the applicant could not have been adjusted against the sanctioned strength, the applicant being the junior most included in the panel for the year 2002-03. The applicant's reversion was necessitated because foe the review DPC undertaken by the respondents consequent upon the judgment rendered by this Tribunal, Jabalpur Bench in Shri L.C. Chaudhry's case. As such we find force in the respondents contention raised by the respondents that due to non-availability of vacancy, the applicant was required to the reverted and therefore no show cause notice was required to be issued prior to passing the said order dated 2.4.2003.
14. The next contention raised by the applicant that the respondents were not justified in recovering pay and allowances attached to the post of Sr. GM. In support of the said contention he relied upon the judgment rendered by the Hon'ble Supreme Court in Selvaraj case (supra) particularly Para-3 wherein it was noticed that the fact remained that the applicant had worked on the higher post. In the present case also the applicant had worked on the higher post pursuant to promotion orders dated 30.1.2003 as well as 6.2.2003. It is also not in dispute the salary attached to the post of Sr. GM was in the pay scale of Rs. 22400-24500. Consequently on the principle of quantum meruit, the respondents authorities were under obligation to pay the emoluments in the aforesaid higher pay scale during the time he actually worked on the said higher post of Sr. GM. Once the applicant had rendered the functions attached to the said higher post, the pay and allowances attached to the said post which were paid justly, could not have been recovered lateron, under any circumstances. On this aspect, we find justification in the applicant's prayer and accordingly direct the respondents to refund the recoveries so made w.e.f. 3.2.2003 till 7.4.2003.
15. Coming to the further contentions that the applicant's representation dated 7.4.2003 was not considered on merits and objectively and was rejected in a prefunctionary manner vide communication dated 26.5.2003, as well as that he was not considered for promotion by the DPC held for the vacancies in the year 2003-04, we find that the applicant had made a specific contention that due to administrative delay the selection panel of Sr. GM, for the year 2003-04 was not ready in advance by 31.3.2003 in terms of DOPT instructions as well as model calendar for holding DPC as laid down by the Hon'ble Supreme Court in Union of India v. N.R. Banerjee, 1997 SCC (L&S) 1194 : 1997(2) SLJ 103 (SC). Since the vacancy arose w.e.f.
1.4.2003, we find that in terms of DOPT O.M. dated 10.4.1989, as amended from time to time as well as. DOPT O.M. dated 12.10.1998, the applicant ought to have been considered for promotion along with the other eligible officers for the vacancy occurring during the period 2003-2004. As per the O.M. dated 11.12.1998; "If eligible employees, who were within the zone of consideration for the relevant year (s) but are not actually in service when the DPC is being held, are not considered while preparing yearwise zone of consideration/panel and, consequently, their juniors are considered" was not approved by the DOPT and it was mentioned that it is imperative to identify the correct zone of consideration for relevant year(s) and names of retired officials should also be included in the panel(s), though the retired officials have no right, for actual promotion. As per the O.M. dated 10.4.1989, which had been the subject matter before the Hon'ble Supreme Court in Union of India v. N.R. Banerjee and Ors., (supra), it was held that the object of O.M. is that the Government should keep the panel ready in advance so that the vacancies arising soon thereafter may be filled up from amongst the approved candidates whose names appear in the panel. The life of the panel, generally is one year. It was felt essential that Appointing Authority should initiate action to fill up the existing as well as the anticipated vacancies well in advance on the expiry of the previous panel by collecting all relevant documents, despite the fact that the Government is under no obligation to fill up the vacancy and empanelment of a candidate does not create any right in his favour. Yet the administrative instructions issued by the Government of India clearly indicated the need for taking action for preparation of panel well in advance to fill up the clear vacancies or anticipated vacancies.
16. In the present case the vacancy which arose on 1.4.2003 consequent upon retirement of Shri B.V. Rastogi on 31.3.2003, was well known to the authorities concerned. It is not the case of the respondents that the applicant was considered by the DPC, which according to the applicant was held in November, 2003, after he attained the age of superannuation on 31.8.2003. It was specifically contended by the applicant that his name was not considered by the DPC and accordingly was not promoted. Had the DPC been met in time in terms of the O.M.noted herein above, it is possible that the applicant would not have been reverted and could have been adjusted against the vacancy of Shri B.V. Rastogi, he being the senior most in the feeder cadre. The right of consideration for promotion is a fundamental right. In the present case, the applicant had not been considered for promotion for no fault of him but due to the unfair and illegal procedure adopted by the respondents, and that too without any justification. The communication dated 26.5.2003 rejecting the applicant's representation against the reversion order, in our considered opinion failed to deal with this aspect. The applicant has contended that due to reversion order dated 2.4.2003, he suffered not only in terms of pension but other retiral benefits too like commutation of pension and leave encashment etc. The respondents have not offered any explanation as to why no steps were taken to convene the DPC well in advance and further why the applicant was left out of consideration zone for the vacancy of 2003-04 and why he was not considered in terms of DOP&T O.Ms. dated 10.4.1989 and 12.10.1998, particularly when the applicant was not responsible for the delay in holding the DPC. On the other hand, we find specific statement from the respondents in their reply that; "further the DPC for Sr. GM for the year 2003-04 was delayed due to the unforeseen circumstances and the select panel for the year 2003-04 was not ready until the date of superannuation of the applicant".
In view of the above unqualified admission on the part of the respondents, we find no justification in ignoring the applicant's claim for right to consider him for promotion.
17. In the light of the discussions made herein above, the application is allowed in the following manner: (i) The respondents are directed to refund the pay and allowances recovered from his salary w.e.f. 3.2.2003 till 7.4.2003, since he had discharged the functions attached to the post of Sr. GM. He is also declared to be entitled to salary and allowances in the pay scale of Rs. 22400-24500/- for the said period; (ii) The respondents are directed to convene review DPC and consider the applicant for the post of Sr. GM in the aforementioned pay scale and if he is found fit, he should be promoted on notional basis w.e.f. 2.4.2003 as he was ordered to be reverted vide order dated 2.4.2003. This exercise shall be complied within a period of 3 months from the date of receipt of this order; (iii) If the applicant is found fit for promotion for the post of Sr. GM, he would be entitled to fixation of pensionary benefits as if he was actually promoted on 2.4.2003 though he would not be entitled to arrears of pay and allowances from 2.4.2003 till 31.8.2003. Further, he would also be entitled to calculation of terminal benefits in the pay scale of Rs. 22400-24500/-.