Shekhar Agarwal, Member (A).
1. The applicant was appointed as Assistant Administrative Officer in the pay scale of Rs.6500-10500 in National Technical Research Organisation (NTRO) on 09.01.2006. Prior to that, he had joined on 28.01.1997 as Assistant in Special Service Bureau (SSB) under the Directorate General of Security in the pay scale of Rs.1640-2900. He got promoted as Section Officer on 23.12.2002 in the pay scale of Rs.6500-10500. After 6th Pay Commission, this pay scale had been revised to PB-2 with Grade Pay of Rs. 5400.
2. On 13.04.2006, NTRO issued an advertisement for filling up the posts of Administrative Officer in the pay scale of Rs.8000-13500 on deputation basis. The applicant applied for the same and was selected. He was appointed as Administrative Officer on 18.08.2006 in NTRO on deputation basis. On 13.07.209 he was permanently absorbed in the grade of Administrative Officer i.e. PB-3 with grade pay of Rs. 5400.
3. On 04.12.2010, NTRO issued an advertisement for filling up the three posts of Assistant Director (Admn.) in PB-3 + Grade Pay of Rs.6600 on deputation basis. The relevant qualifications mentioned in the aforesaid advertisement were as follows:-
'For Assistant Director (Admn.):-
Officers working under the Central Government:-
(i) Holding analogous post on regular basis or having six years service on regular basis in the scale of PB-2 Rs.9,300-34,800/-+Rs.4,800/- (Grade Pay) or equivalent in their parent cadre or department; and
(ii) Possessing five years experience in dealing with Administration and Establishment matters in any Central Government Department/Organization.
3. Age limit for all posts is 56 years as on the closing date for receiving of applications.
4. The applications in the prescribed proforma forwarded through proper channel along with disciplinary/vigilance clearance/integrity certificate and attested copies of ACRs for the last 5 years at the following address within 30 days from the date of the advertisement in Employment News.'
4. On 07.12.2010, the applicant represented that he may be considered for promotion before filling up the existing vacancies by deputation. However, the respondents went ahead and appointed respondents No. 3, 4 & 5 on deputation basis on different dates between 15.04.2011 to 20.06.2011. The applicant again submitted a detailed representation on 23.12.2011 followed by another representation dated 26.04.2012. In June, 2012, the applicant was informed that his representation was being considered in consultation with DoP&T. Finally, his representation was rejected by impugned order dated 01.11.2012. Aggrieved by the same, the applicant has filed this O.A. seeking the following relief:-
'(i) call for the records of the case.
(ii) Quash and set aside the impugned orders dated 1.11.2012 and 22.11.2012 at Annexures A-1 and A-2 respectively as well as reply dated 25.07.2011 at Annexure A-7;
(iii) declare the service rendered by the Applicant as Administrative Officer in the office of the Respondent No.1 on deputation basis from 18-08-2006 till the date of his absorption on 13-07-2009 shall be counted as qualifying regular service for the purposes of promotion to the post of Assistant Director (Admn) in the office of the Respondent No.1.
(iv) direct the official respondents to produce the Recruitment Rules for the post of Assistant Director and on such production quash and set aside that provision of the Recruitment Rules whereby persons holding substantive posts two stages below than the post of Assistant Director (Admn) and also lower than its feeder grade in promotion category have been made eligible for appointment as Assistant Director (Admn) in the office of the Respondent No.1 in violation of nodal guidelines for appointment on deputation.
(v) quash and set aside the appointment of the Respondents No.3 to 5 on deputation basis as Assistant Director (Admn) in the office of Respondent No.1.
(vi) direct the Respondents to consider the case of the Applicant for promotion to the grade of Assistant Director (Admn) with effect from 18-08-2011 on completion of five years of regular service in the grade of Administrative Officer with all consequential benefits.
(vii) direct the Respondents to pay the cost of the proceedings.'
5. In their reply, the respondents have not disputed the basic facts of the case as narrated above. They have, however, disputed the contention of the applicant that he was due for promotion to the post of Administrative Officer. According to them, as per Recruitment Rules of the post of Assistant Director, 05 years of regular service as Administrative Officer is required for such promotion. Further, they have stated that as per DoP&T guidelines, in the case of a person who is initially taken on deputation and absorbed later, seniority in the grade in which he is absorbed is counted from the date of absorption. However, if such a person is holding same or equivalent grade on regular basis in his parent department, such regular service in the grade shall also be taken into account while fixing his seniority. Then he will be given seniority from the date from which he has been holding the post on deputation or the date from which he has been appointed on regular basis to the same or equivalent grade in his parent department, whichever is earlier. Thus, effectively the guidelines stipulate that seniority of a person shall count from the date of his absorption. However, he can be given retrospective seniority if he was holding same or equivalent grade on regular basis in his parent department. In the instant case, the applicant on the date of his absorption i.e. 13.07.2009 was holding substantive post of Section Officer in his parent cadre which is lower than the post of Administrative Officer on which he was absorbed. Accordingly, in the light of above mentioned guidelines of DoP&T the applicant was entitled to seniority on the post of Administrative Officer only from the date of his absorption i.e. 13.07.2009. Further, as mentioned above since the requirement for promotion as Assistant Director was 05 years service as Administrative Officer, the applicant became eligible for such promotion only in 2014.
5.1. The respondents have further stated that the Recruitment Rules for the post of Assistant Director also had a provision for filling up the post on deputation basis in the case of failure to fill the same by promotion. Since the applicant was not eligible and since there was no other eligible officer available for promotion, the respondents went ahead and filled these posts by taking private respondents on deputation.
6. During the course of arguments, learned counsel for the respondents stated that the private respondents had since completed their deputation and had reverted back to their parent department. Learned counsel also conceded that even when the private respondents were holding posts of Assistant Director on deputation, other posts of Assistant Director were vacant on which the applicant could have been considered for promotion had he been eligible. In view of the aforesaid submissions of the respondents, learned counsel for the applicant agreed that his relief clauses No. (iv) & (v) seeking quashing of the Recruitment Rules as well as appointments of the private respondents have become infructuous and decided not to press the same. The O.A. was, therefore, heard for the remaining reliefs sought in the relief clause.
7. We have heard both sides and have perused the material on record. The main issue to be decided in this case is whether the service rendered by the applicant on the post of Administrative Officer on deputation between the period from 18.08.2006 to 13.07.2009 be counted as eligible service for promotion to the post of Assistant Director or not. Learned counsel for the applicant argued that the applicant was appointed as Administrative Officer on deputation basis in accordance with the Recruitment Rules which provide for filling up such a post on deputation basis. Hence, there is no reason to ignore the deputation period for determining his eligibility for promotion. In this regard, he relied on the following judgments:-
(i) K. Madhavan and Anr. Vs. UOI & Ors., (1987) 4 SCC 566.
(ii) Vijai Kishore Vs. RITES, (OA-1546/2013) decided on 03.09.2013.
(iii) Dr. Rajendra Kumars & Ors. Vs. GNCTD (WP(C)-14097-100/2005 decided by Hon’ble High Court of Delhi on 11.10.2006.
Civil Appeal No. 1753/2007 filed by the Government against the aforesaid judgment was dismissed by Hon’ble Supreme Court on 13.10.2011.
7.1. On the other hand, the respondents relied on the judgment of Hon’ble High Court of Delhi in the matter of Diwan Singh Bisht Vs. UOI, 2005(2) AD (DELHI) 407, the relevant paras of which read as follows:-
'10. The core issue that arises for consideration is whether petitioner was holding the equivalent post to that of Security Assistant in IB in his parent organization and whether he was entitled to the antedating of his seniority by reckoning his service in the BSF and while on deputation in IB till absorption on the analogy of Ram Singh Rawat or under the mandate of Supreme Court judgment in Madhavan's case.
11. The equivalence of the two posts is determinable on consideration of several factors like nature and duties of these posts, the responsibilities and powers attached to these, the minimum qualifications prescribed for recruitment to the posts and salary attached to these posts. Nowhere has petitioner set up any case that the post of Constable in BSF equivalent to that of Security Assistant in BSF with or without these factors. His whole case revolves round the benefit given to Ram Singh Rawat and the clarificatory memorandum issued by respondents dated 21.1.1986.
12. In our view, neither the Supreme Court judgment in Rawat's case nor the memorandum (supra) advances the petitioner's case. Because the Supreme Court was not dealing with equivalence of two posts in Rawat's case. The Court in this had asked respondents to produce a letter addressed to Rawat assuring him that his case for reckoning for his service was being examined and because of their default in this had directed them to protect his seniority.
13. This is not a binding precedent on the equivalence of two posts which could be applied to petitioner's case. The clarificatory memorandum dated 20.1.1986 also does not provide that the post of Constable in the BSF was equivalent to the post of Security Assistant in the IB. This, on the contrary, clarifies the position on the classification of the post of Security Assistant in the pay scale of Rs. 225-308 from Group 'D' to Group 'C' and makes reference in this regard to the position in Central Police Organizations and Police Force of various states.
14. The judgment of Supreme Court in Madhavan's case is also not attracted. In this, the Court was dealing with transfer of a Government servant to the same or equivalent post in another Government department and in that context it was held :-
"It will be against all rules of service jurisprudence if, when a Government servant holding a post is transferred to the same or an equivalent post in another Government department, the period of his service in the post before transfer is not taken into consideration in computing his seniority in the post to which, he is transferred and his transfer wipe out his length of service in the post from which he has been transferred."
15. The basis of this was that the Government servant transferred to the same or equivalent post in another department, which basis was not available in the petitioner's case, as it was not stated by him that the post of Constable in BSF was equivalent to that of Security Assistant in the IB. As against this, respondents have furnished details to show that the post of Security Assistant was equivalent to that of Naik in BSF because of the identical pay scales attached to the two posts and that under the hierarchy of posts in the BSF, the line of promotion for Constable was to the post of Lance Naik first and then to Naik.
16. Apart from this, it is noticed that respondents had also issued memorandum dated 20.11.1981 providing that the deputationists officiating in higher rank will be diverted to their substantive rank in their parent organizations and the service rendered by them in their parent organizations will not count towards seniority in the rank they are taking in IB and that they would rank junior to all personnel appointed prior to their dates of deputation. This memorandum is undisputably in force and has not been called in question.
17. Therefore, all things considered, we find no infirmity in the Tribunal order which is affirmed and the writ petition dismissed.'
8. The issue whether service rendered on deputation should count as eligible service for promotion or not has been dealt with by us in great details in OA-3696/2014 (Sanjeev Kumar Sharma & Ors. Vs. UOI & Ors.) decided on 11.11.2014. In the aforesaid judgment all the citations relied upon by the learned counsel for the applicants have also been considered by us. The relevant paras of our judgment are as below:-
'6. We have considered the arguments advanced by both the sides. We have also perused the NHAI Regulations. We find that NHAI Regulations made under the NHAI Act of 1988 were first notified on 11.03.1996. Regulation-15(3) of the aforesaid Regulations read as follows:-
'The seniority of persons initially appointed on deputation and subsequently absorbed in the Authority shall be reckoned from the date of their initial appointment. If two or more persons in the same grade get absorbed in the Authority on the same date, their inter se seniority shall be determined with reference to their seniority level in their parent cadre.'
In the Schedule attached to the aforesaid Regulations, it is mentioned that the posts of DGM(T) were to be filled by transfer/deputation/promotion/direct recruitment. As far as promotions were concerned, the posts were to be filled from candidates holding the post of Manager for a period of atleast 04 years. These Regulations were amended on 23.10.2009. According to the Amended Regulation, the posts of DGM(T) were to be filled by promotion from candidates holding the post of Manager (T) on a regular basis for a period of atleast 04 years and possessing the requisite educational qualifications. (As far as educational qualifications are concerned, there is no dispute between the parties and hence we do not propose to deal with them any further.)
6.1. The Regulations were again amended on 24.08.2012 and as far as seniority is concerned, Regulation-15(3) was substituted as follows:-
'The seniority of officers and employees of the Authority shall be determined on the basis of the instructions and guidelines issued by the Central Government (Department of Personnel & Training), from time to time.'
Another Regulation-22 was inserted, which read as follows:-
'In regard to matters not specifically covered by Regulations made under Section 35 of the Act or any general, or special orders made or issued thereunder, the service conditions of the officers and employees of Authority shall be governed by the rules applicable to the employees of the Central Government in general and instructions issued by the Central Government, from time to time.'
6.2. After perusing the Regulations of NHAI, we have considered the arguments advanced by both the sides and, in our opinion, two issues are involved in this O.A. One is with regard to determination of seniority of the applicants and the other is with regard to their consideration for promotion. We are of the view that the two issues are different and should not be mixed up with one another. While, it is true that for promotion seniority is important yet there may be cases where some period of service may not count towards seniority but may be relevant for promotion. Thus in the case of inter zonal transfers in Income Tax and Customs, the transferees willingly accept bottom seniority in the zone to which they get transferred on their own request. Yet, it has been held in a catena of cases that if such transferees were eligible to be considered for promotion/upgradation on the basis of their length of service in their previous zone, then they should be so considered even if their seniors were not eligible provided despite their bottom seniority the transferees fall within the zone of consideration for promotion. In this regard the decision of Hon’ble Supreme Court in the case of Renu Mullick Vs. UOI, 1994 (1) SCC 373 can be referred to.
6.3. Thus, it is quite clear that there may be cases in which certain period of service may not count for seniority but may be relevant for determining eligibility for promotion. Therefore, it is necessary that seniority and promotion are not mixed up and eligibility of a candidate for promotion be examined in terms of the Rules and Regulation relevant for promotion. In the instant case also it is necessary to examine the eligibility of the applicants for promotion in terms of NHAI Regulations dealing with promotion. As mentioned above, for our purpose the Schedule attached to the Regulations of NHAI is relevant. According to this for the purpose of promotion from Manager (T) to DGM(T) 04 years of regular service is required in the grade of Manager (T). We now proceed to examine whether the applicants fulfill this condition. For this purpose, it is necessary to examine what is the meaning of the term ‘regular service’.
6.4. In our opinion regular service is the service rendered on a post after being appointed on the same on regular basis against a regular vacancy. Regular appointment would be appointment made as per procedure prescribed under the relevant Recruitment Rules. An appointment made de hors the Recruitment Rules would be ad hoc and will not be termed as regular. Further, regular vacancy is defined in terms of DoP&T Instructions as contained on pages-95 & 96 of Swamy’s Compilation on Seniority and Promotion, Thirteenth Edition-2010, para 4.1 of which reads as follows:-
'Determination of Regular Vacancies
It 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.'
6.5. Thus, it follows that an appointment made in consonance with the provisions of the Recruitment Rules against a vacancy, which is long term will be deemed to be regular appointment. Similar observation has been expressed by Hon’ble Supreme Court in the case of K. Madhavan (supra) wherein it has been held that appointment made on a post on regular basis in contra distinction to appointment on ad hoc or stop-gap or purely temporary basis would be deemed to be regular appointment.
6.6. In the instant case, we find that NHAI Regulation do provide for appointment of officers on deputation as Manager (T). Thus deputation as a mode of recruitment is prescribed under the Regulations. There is also no doubt that the vacancies against which the applicants were appointed were long term regular vacancies as the applicants had continued on these posts for several years. It follows that the appointment of applicants as Manager (T) on deputation basis in NHAI was regular appointment and the service rendered by them commencing from their date of deputation would be deemed to be regular service. Hence, the eligibility of the applicants for promotion to the post of DGM (T) should be determined after taking into account this service. Since it is not in dispute that the applicants joined NHAI on different dates between 2004 to 2008, it is obvious that all of them have completed 04 years of regular service as Manager (T) and have therefore become eligible for consideration for promotion to the post of DGM (T) provided they are otherwise eligible.'
8. Thus, in the above quoted judgment we have come to the conclusion that the service rendered by a deputationist be counted as eligible service for promotion to the next post after his permanent absorption in the borrowing organization provided he has been appointed on deputation on regular basis i.e. in accordance with the Recruitment Rules against regular vacancies. In the instant case also, it is not disputed that the Recruitment Rules for the post of Administrative Officer provided for filling up the post on deputation basis and the applicant was so appointed in accordance with the provision of the Recruitment Rules. The vacancy was also a regular one since the applicant continued on that post for several years. Thus, the appointment of the applicant as Administrative Officer has to be regarded as a regular appointment and the service rendered by him of almost three years prior to his absorption, has to be regarded as regular service. Since the Recruitment Rules for the post of Assistant Director provide for 05 years regular service as Administrative Officer for promotion as Assistant Director, the applicants eligibility for the same should be determined counting his service from 08.08.2006 and not from 13.07.2009 as is the stand taken by the respondents.
9. The respondents had relied on the judgment of Hon’ble High Court of Delhi in the case of Diwan Singh Bisht (supra). We have gone through this judgment and we find that in that case the Hon’ble High Court was concerned with determination of seniority of Sh. Bisht. In that context Hon’ble High Court came to the conclusion that since the petitioner was not holding equivalent post in his parent cadre, he was not entitled to count his service rendered on deputation basis for the purpose of seniority. However, the claim of the petitioner for promotion was rejected only on the ground that if seniority is denied to him, promotion as a consequence of such seniority also could not be given. In the instant case, the issue of determination of the seniority of the applicant is not involved. In our judgment in OA-3696/2014 cited above, we have discussed situations in which certain period of service may not be eligible for being taken into account for the purpose of seniority but has to be counted for promotion.
10. Further, we notice from the impugned order that the respondents rejected the representation of the applicant based on the advice given by the DoP&T quoted in the impugned order, which reads as follows:-
'It is stated that eligibility service of an officer is generally counted from the date on which the officer holds the post on regular basis or from any other date as prescribed in the Recruitment Rules of the post or as per any specific instructions issued by the Central Government in this regard. In absence of any instruction in regard to the counting of eligibility service on absorption, the eligibility service in the grade is to be counted from the date of absorption in the grade. The principle laid down for finalizing seniority in case of absorption of an employee (i.e. from the date of absorption or the date from which the person absorbed, has been appointed on a regular basis to same or equivalent grade in his parent department, whichever is earlier) is, therefore, not applicable for counting of eligibility service.'
10.1. A plain reading of the above advice would make it clear that DoP&T themselves have opined that the principle laid down for finalizing the seniority in the case of absorption of an employee was not applicable for counting of eligibility service for promotion. Thus, DoP&T themselves have made a distinction between eligible service for promotion and eligible service for the purpose of seniority. As such, the case of Diwan Singh Bisht relied upon by the respondents shall not be applicable in the instant case. In this case even if the service rendered by the applicant on deputation is disregarded for the purpose of seniority, he could still be eligible for promotion if the same service period is counted for promotion since there were no other contenders for promotion.
10.2. However, where DoP&T have erred is in coming to the conclusion that if there is no rule or instruction then the eligible service for promotion should count from the date of absorption. They have even ignored earlier part of their own advice that eligible service is generally counted from the date on which the officer holds the post on regular basis. The fall out of this interpretation is that the regular service rendered by a person on deputation post after being appointed on the same in accordance with Recruitment Rules against a regular vacancy will get completely disregarded. Since this service was not being counted even for seniority, the net result would be forfeiture of the entire service rendered on deputation. This, in our opinion, is highly unjust since an officer is appointed on deputation in public interest in accordance with Recruitment Rules. We, therefore, come to the conclusion that there is merit in the contention of the applicant that the period of service from 18.08.2006 to 13.07.2009 rendered by him as a deputationist on the post of Administrative Officer should count for determining his eligibility for promotion to the post of Assistant Director.
11. Learned counsel for the applicant had argued that if the deputation period is counted as eligible service, the applicant completes 05 years on the post of Administrative Officer on 17.08.2011 and had become eligible for promotion as Assistant Director from that date. He, therefore, argued that the applicant deserves retrospective promotion w.e.f. 17.08.2011. Learned counsel submitted that it is not denied that vacancy was available for promotion of the applicant on 17.08.2011 despite appointment of private respondents on deputation. Thus, the only reason for denying promotion to the applicant was illegal stand taken by the respondents and as a necessary legal corollary the applicant should be put back in the same position which he would have got had the law been properly followed by the respondents. In this regard, he relied on the judgment of Hon’ble Supreme Court in the case of K. Madhavan (supra), in para-15 of which following has been held:-
'15. There can be no doubt that if the meeting of the DPC scheduled to be held is arbitrarily or mala fide cancelled without any reasonable justification therefor to the prejudice of an employee and he is not considered for promotion to a higher post, the Government in a suitable case can do justice to such an employee by granting him promotion or appointing him to the higher post for which the DPC was to be held, with retrospective effect so that he is not subjected to a lower position in the seniority list..'
Learned counsel also relied on the judgment of Hon’ble High Court of Delhi in W.P.(C) No. 14097-100 (Dr. Rajender Kumar & Ors. Vs. GNCTD) and W.P.(C) No. 346/2014 (Dr. C.P. Singh Vs. GNCTD) in which the following para is relevant:-
'The assignment of prior dates was necessary to ensure justice to them, for the simple reason that FSL earlier refused to consider their service prior to absorption, for purpose of promotion to Assistant Director.'
Learned counsel also relied on the judgment of Hon’ble High Court of Kerala in W.P.(C) No. 9508/2009 (Valsala Kumari Devi M. Vs. State of Kerala & Ors.). In this case, the p
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etitioner was a candidate of HSST (History). She was denied selection on that post and one other candidate, namely, Sh. M.K. Aravindakshan Nambiar was so appointed. After prolonged litigation going right up to the Apex Court the petitioner succeeded in getting appointment in place of Sh. Nambiar. She then sought promotion from the date from which Sh. Nambiar had been promoted and succeeded in the same. 12. On the other hand, the respondents stated that Para-6.6.6 of DoP&T O.M. dated 10.04.1989 clearly states that promotions will have only prospective effect even in cases where vacancies relate to earlier years. Further, they relied on the judgment of Hon’ble Supreme Court in the case of Nirmal Chandra Sinha Vs. UOI, 2008 (14) SCC 29 wherein it has been categorically held that promotions take effect from the date of being granted and not from the date of occurrence of vacancy or creation of the post. The respondents further stated that Hon’ble High Court of Delhi in the matter of UOI Vs. Vijender Singh has categorically held that service jurisprudence does not recognize deemed retrospective promotion unless there exists a rule or residual power for granting such promotion. It was held that no person can claim a right to be promoted from the date of vacancy. The respondents submitted that this Tribunal relying on the aforesaid judgment of Hon’ble High Court had dismissed OA-2506/2011 (Dr. Rama Kant Singh Vs. UOI) vide judgment dated 05.09.2014. 13. After considering the rival submissions and the various citations mentioned above, we are of the opinion that promotion should normally be given from the date from which it has been granted. Retrospective promotions can, however, be given under certain situations in which the claim of a person gets wrongfully disregarded or if it becomes necessary to grant retrospective promotion to prevent injustice to that person in the matter of seniority with respect to others coming from a different stream. In the instant case, we find that other than the applicant no one else was eligible for promotion and as such DPC was never held. The private respondents who had been appointed on deputation have already been repatriated to their parent cadre and no injustice had been caused to the applicant vis-a-vis the private respondents in the matter of seniority. Considering the facts and circumstances of this case we are of the opinion that a case for granting retrospective promotion is not made out despite the fact that the applicant had become eligible for promotion w.e.f. 17.08.2011. Ends of justice would be met if the respondents now consider the applicant for promotion expeditiously in the light of observations made above. 14. We, therefore, partly allow this O.A. and quash the impugned order dated 01.11.2012. We direct that the applicant be considered for promotion by counting his deputation period as Administrative Officer as eligible service for promotion. We, however, reject his claim for retrospective promotion. The respondents shall consider the claim of the applicant within a period of eight weeks from the date of receipt of a certified copy of this order. No costs.