Full Judgment
Mrs. Meera Chhibber, Member (J)
1. Applicant has challenged the order whereby he has been promoted as AGM with effect from 17.2.2010 and has sought a direction to the respondents to deem the applicant as having been promoted from the date the post has fallen vacant with payment of resultant salary and allowances, increments and all other consequential benefits and also to pay him 24% interest on arrears from the date of promotion of the applicant till actual date of payment.
2. The brief facts, as stated by the applicant, are that while working as Assistant, applicant had sought permission from the authorities to pursue his graduation which was granted vide letter dated 17.3.1994 (page 21). After he passed the graduation, he requested the authorities to enter the same in his service book vide letter dated 28.2.2003 (page 23) and the said educational qualification was entered in the service book of applicant who had by then become Section Officer, as is evident from page 24.
3. It is submitted by the counsel for the applicant that a vacancy had arisen on 7.9.2009 due to demise of one Shri K.S. Nim, who was a SC officer. Since applicant was also SC, he gave a representation on 13.8.2009 to the GM (Personnel) for promoting him against the said reserved quota vacancy as he fulfilled all the eligibility conditions. Grievance of the applicant in this case is that they delayed the matter unnecessarily and in order to delay the same further, sent the letter to the Registrar, Osmania University, Hyderabad on 12.9.2009 seeking clarification regarding the degree obtained by the applicant. Finally, applicant was promoted as AGM with effect from 17.2.2010 while the vacancy had arisen on 17.2.2009. It is thus prayed by the applicant that the relief, as prayed, may be granted because have he been promoted in 2009, he would have earned one increment which has been lost on account of delay in giving promotion to the applicant.
4. Respondents have opposed this OA on the ground that applicant could not have been promoted from the date when vacancy had arisen as Shri K.S. Nim had died suddenly and it was the reserved (SC) vacancy. In any case, there are pre-promotional formalities which need to be complied with before effecting any promotion. In the instant case, the certificate which was given by the applicant showed he had passed B.A. degree in 2 years from Osmania University whereas graduation is generally awarded after completing 3 years course. There was a doubt in the mind of the respondents whether it is equivalent to 3 years graduation or not so they had sent letter dated 12.10.2009 to the Osmania University enquiring from them whether the degree awarded was equivalent to that of 3 years awarded by other universities. The confirmation came from the University vide letter dated 19.11.2009. In the meantime, one Shri P.T. Nirmal, Section Officer posted in the office of CE (C) Bangalore had filed a petition before the Bangalore Bench of the Central Administrative Tribunal challenging the Management Service Recruitment Rules, 2009 and Bangalore Bench had directed the respondents to keep one post of AGM vacant till the next date. In view of above, the claim of the applicant could not be considered. As soon as the OA was withdrawn, action for promotion of the applicant was initiated. Finally, applicant was promoted on 17.2.2010.
5. They have further stated that as per the instructions, applicant was also considered for financial upgradation and the same was granted to him in the scale of Rs.32900-58000 with effect from 1.10.2009 whereas the post based promotion in the grade of AGM was in the scale of Rs.29100-54500 which was granted to the applicant with effect from 17.2.2010. They have thus stated that since the promotional grade is less than the upgraded scale, as per the Executive Promotion Policy, no increment was to be given to the officer concerned nor can it be stated that he had been made to suffer any monetary loss. They have thus stated that their actions are bona fide and it is wrong to allege that they have delayed the promotion of the applicant due to mala fides, therefore, the OA may be dismissed.
6. We have heard both the counsel and perused the pleadings as well.
7. Admittedly, the vacancy of AGM became available on 17.2.2009 due to the death of one officer, namely, Shri K.S. Nim, therefore, it could not have been anticipated by any one. Obviously, when the vacancy becomes available on account of death of the officer, the formalities for promotion have to be undertaken whereas in case of anticipated vacancy the action has to be taken in advance. This is the basic difference in the present case, therefore, it cannot be stated that on the day when the vacancy became available, the next person should have been promoted from the same date. We are also satisfied that since applicant had completed the course of graduation in 2 years and in normal course, graduation is for 3 years, respondents had a right to get their doubt clarified. They had sought clarification from the Osmania University by writing a letter on 12.10.2009. The reply was received from the office of the Controller of Examination, Osmania University, Hyderabad vide their letter dated 19.11.2009 but in the meantime one officer had filed OA No. 462/2009 before the Bangalore Bench of the Central Administrative Tribunal challenging the Management Service Recruitment Rules, 2009. The Bangalore Bench of the Tribunal had passed an interim order on 30.11.2009. The relevant portion of the order dated 30.11.2009 reads as under:-
“The interim prayed is for staying promotional exercise with reference to the Assistant General Manager (AGM) cadre, as per para 9 (a), the alternate interim prayed in para 9 (b) is for a direction to kept vacant one AGM post borne on the strength of BSNL. We grant the alternate interim prayer and order that the respondents shall keep one post of AGM vacant. This order will be operating till the next date of hearing. Post on 1.1.2010”.
8. In view of above, naturally respondents could not have promoted the applicant on the post of AGM as there was interim stay by the Tribunal. It is relevant to note that on 24.12.2009 the Chief General Manager, BSNL, Bangalore was requested to explain the position regarding vacancies to the Bangalore Bench of the Tribunal, namely, that the sanctioned strength of AGMs of erstwhile CSS cadre is 24 out of which 23 AGMs are working on regular basis and there is only one vacant post of SC category which has fallen due to demise of Shri K.S. Nim (SC). The process for filling up of the SC post was in progress, however, in the meantime, due to Tribunal’s order the said post could not be filled up so far. Shri Nirmal Kumar belongs to OC category whereas the vacancy available at present belongs to SC category. The applicant therein cannot be considered against the only one SC post available as the same has to be filled by the SC category official. They had thus directed the Bangalore Office to request the Tribunal to vacate stay order by narrating all the facts (page 59). This clearly shows bona fides on the part of the respondents as facts were explained by the respondents. Therefore, it is wrong to allege mala fides. Thereafter, as soon as OA was withdrawn by the said person, applicant was promoted as AGM vide order dated 17.2.2010.
9. In view of the facts, as explained above, it cannot be stated that respondents had delayed the promotion of applicant due to any mala fides or with any oblique motive. It is only due to the circumstances, as explained above, that the promotion of the applicant got delayed by few months. The instructions of the Government of India are absolutely clear that promotions have to be with prospective effect. In any case no monetary loss has been caused to the applicant because, in the meantime, he has been granted financial up-gradation as mentioned above in the higher grade. In view of above facts, the relief as claimed by the applicant cannot be granted. The OA is accordingly dismissed. No order as to costs.