ORDER
L.K. Joshi, Vice Chairman (A)
1. In this judgment, we are considering OAs No. 1152/2007, 1167/2007 and 1227/2007. The facts in all the three cases and the points of law involved are identical. We are, therefore, considering these OAs in this one judgment.
2. The Applicants in the above three OAs are aggrieved by Order No. 3/4/2006/S-II/3013-3024 dated 13.06.2007 of the Services Department, Branch-II of Government of National Capital Territory of Delhi (GNCTD). By this order, 176 officials of Grade-III of Delhi Administration Subordinate Services (DASS) were promoted to the post of Grade-II of DASS in the pay scale of Rs. 5500-9000/- under Rule 6 of DASS Rules, 1967. The Applicants’ grievance is that they have not been promoted to Grade-II of DASS. The facts of the case briefly are as follows. The Applicants are Grade-III Stenographers of GNCTD. The Grade-III Stenographers were eligible for promotion either to Grade-II Stenographer or Grade-II of DASS, till such time as these Rules were amended on 7.06.2007. By this amendment dated 7.06.2007, Grade-II of DASS ceased to be a promotional post of Grade-III Stenographers. On 17.10.2007, the Sales Tax Office (Admn.) in the department of Sales Tax, GNCTD sent a U.O. to another Sales Tax Officer, incharge of confidential records mentioning that a letter No. F.3(13)/96/S.III/2927 dated 8.10.2001 had been received from Deputy Secretary (Services-III Department) for forwarding the integrity certificates, vigilance clearance reports and complete ACR folders containing ACRs upto the year 1999-2000 and option of the officials for promotion to Grade-II Stenographers/DASS in respect of some of the officials. A copy of the letter dated 8.10.2001 is at Annex RJ-1. The list included names of some of the Applicants including Birender Gosain, Rajesh Kumar Gautam and Chetan Swaroop. Similarly such letters were issued by Delhi Secretariat which included names of other Applicants. These Applicants gave their option for promotion to Grade-II of DASS. By letter dated 7.01.2002 of the Office of Commissioner of Sales Tax, relevant documents and clearance regarding some of the Applicants had been sent to the Services Department (Annex RJ-2). Some of the Applicants including Birender Gosain and Rajesh Kumar Gautam were promoted to Steno Grade-II by order dated 10.11.2004. The Applicants opposed the aforesaid action of the Respondents and again submitted their options by letter dated 27.12.2004 (Annex. A-4). By letter No. F-III-56/CST/Estt./Misc/2001/81 dated 5.01.2005, the Applicants in OA No. 1152/2007 were asked to give their refusal for promotion to the post of Grade-II Stenographer. The Applicants gave a letter dated 6.01.2005 reiterating that they had given their option for Grade-II DASS in 2001 and also refusing promotion to the post of Grade-II Stenographer, as per the direction of the department in their letter dated 5.01.2005. In OA No. 1227/2007, by a letter from the Services Department (II) of GNCTD No. F.3/4/2006/S.II/Pt.File/5794 dated 29.05.2006 addressed to all Heads of Departments of GNCTD, directions were given to send the particulars of 64 officials including the Applicants for considering their names for promotion to Grade-II of DASS. In OA No. 1167/2007, the Applicant’s name was included in the list dated 8.10.2001 for promotion to Grade-II of DASS. He was promoted as Grade-II Stenographer by Order No. 28 dated 19.01.2006 and submitted a representation dated 21.02.2006 against this order. By notification No. F-2(16)/99-S-III/1372-1382 dated 7.06.2007 of Services Department (Services IV Branch), the Delhi Administration Services Department Amendment Rules, 2007 were brought into effect. These rules excluded Stenographer Grade-III from promotion to the post of Grade-II of DASS. Consequently the promotions made on 13.06.2007, which is the impugned order, did not include the names of the Applicants.
3. The Applicants submitted a representation on 17.01.2007 also and by letter dated 19.02.2007, the applicants in OA No. 1152/2007 were informed that their names were under consideration for promotion to Grade-II of DASS (Annex.A-10). Similar letters have been received by other departments regarding other applicants on different dates.
4. From the welter of above facts, the following facts emerge clearly. The Applicants were eligible for promotion to Grade-II of DASS before 7.06.2007. All the Applicants had given their options for promotion to Grade-II of DASS instead of Grade-II Stenographer. Some of the Applicants were promoted as Grade-II Stenographer in spite of the option given by them for Grade-II of DASS in 2004. These officials had refused promotion as Grade-II Stenographer on the suggestion of the Administration. As late as February 2007, the names of some of the Applicants were reported by the Administration to be under consideration for Grade-II of DASS.
5. The learned Counsel for the Applicants would contend that the Applicants were eligible for promotion to Grade-II of DASS since 2001. Preparatory work for their promotion had also been done. He would contend that vacancies existed prior to the amendment in the Rules on 7.06.2007 but meetings of the DPCs were not held. He would contend that the Services Department by its letter dated 29.05.2006 (Annex.A-7) had conveyed to the Heads of Departments that ‘a large number of vacancies are lying vacant in various Departments of Govt. of N.C.T. of Delhi and more posts are likely to fall vacant in the near future.’ He would contend that it is mandated by OM No. 22011/3/98-Estt. (D) dated 8.09.1998 that DPCs should be convened at regular intervals to draw panels which could be utilized for making promotions against the vacancies occurring during the course of an year. He would further contend that as per the ratio laid down by the Honourable Supreme Court in Y.V. Rangaiah and Ors. v. J. Sreenivasa Rao and Ors. 1983 SCC (L&S) 382, the vacancies occurring prior to the amendment of the Rules would be governed by the old Rules and not by the amended Rules. The learned Counsel for the Applicants strenuously contends that in the instant case the vacancies had arisen much before the amendment of the Recruitment Rules as evident from the letter of the Respondents dated 29.05.2006 and the process for filling up of the vacancies had been initiated even earlier since 2001. Therefore, he contends that these vacancies occurring prior to the amendment should be filled up as per the unamended Rules in which Grade-III Stenographers had the option either to be promoted to the Grade-II Stenographer or Grade-II of DASS.
6. Per contra, Shri Vijay Pandita, the learned Counsel for the Respondents would argue that the meeting of the DPC was held on 12.06.2007 which was after the amendment in the Recruitment Rules dated 7.06.2007 and hence the Applicants would not be eligible for consideration. He would further contend that the judgement in Y.V. Rangaiah (cited supra) would not be applicable in this case as it is distinguishable on facts because in the instant case, Grade-III Stenographers had dual channel of promotion prior to the notification dated 7.06.2007. The Applicants had got promotion in their line of promotion as early as 2004 but refused to accept the promotion. He would further contend that the crucial date for determining eligibility for promotion would be the first day of the year i.e. 1st January, if the meeting of the DPC is held before 30th June of the year. He would contend that the process of holding the DPC started on 20.04.2006 and the Applicants were not eligible on 1.01.2006. The reason given for this is that the Applicants had submitted written request for refusal for promotion to Grade-II Stenographer on 6.01.2005 and as per the instructions such persons would not be considered for promotion for one year after the refusal. Since some of the Applicants had refused promotion on 6.01.2005, they were not eligible for promotion before 5.01.2006. Therefore, they were ineligible for promotion on 1.01.2006. He would further contend that the Applicants had been granted first upgradation under ACP on 9.08.1999 and would, therefore, be eligible for promotion only to the post against which ACP was granted when vacancy arose earlier. The Respondents have also placed reliance on the judgment in OA-503/2005 Sh. Dhoom Singh and Anr. v. GNCTD and Anr. decided on 2.05.2006. In this case, the applicants were Grade-II Stenographers and had staked their claim for promotion to Grade-I of DASS. In this OA also, Rule 6 of DASS Rules, 1967 had been amended. The Tribunal had dismissed the plea of the applicants in that OA.
7. We have carefully considered the rival contentions and perused the record placed before us in the OAs with the assistance of the counsel for both sides. We have also perused the record in OA No. 503/2005 on which the Respondents have placed reliance.
8. It is not in dispute that vacancies in Grade-II of DASS existed prior to the amendment in DASS Rules, 1967 by notification dated 7.06.2007. The concerned department i.e. the Services Department of GNCTD had started making preparations for promotions from the year 2001 onwards. It is also not disputed that vacancies existed and that Stenographer Grade-III were eligible for promotion either to Stenographer Grade-II or DASS Grade-II. In so far as the refusal of promotion to Grade-II of Stenographers is concerned, it was done on specific suggestion of the Administration when the Applicants made representation to the authorities that they had given their option for Grade-II of DASS and in spite of that they had been promoted as Grade-II Stenographers. The authorities cannot now turn around and in an act of volt face say that they would be ineligible for promotion for one year. Further since the vacancies have existed, at least as far as the record is concerned from 2001, it would be against the instructions of DoP&T’s OM dated 8.09.1998 not to make yearwise panels and hold regular DPCs. It is not quite right to bunch all the vacancies and make promotions in one go. It is well settled that the authorities have to record the reasons for their inability to hold meeting of DPC as per the prescribed norms of DOP&T’s aforesaid OM. If for some reason it is not possible to hold the DPC in an year, then yearwise panels have to be made and promotions have to be also yearwise. Clearly, if such promotions are made prior to the amendment of Rules, these would be governed by the Rules existing during the period for which promotions are being made. To clarify, if promotions were to be made for the eligible candidates of the year 2001, obviously the amendment of 7.06.2007 could not be taken into account. We are unable to agree with the Respondents’ arguments that Y.V. Rangaiah (supra) would not apply in this case only because of the reason that in Y.V. Rangaiah there was only one channel of promotion and in the instant case, there are two channels of promotion. This would not in any way affect the principles enunciated in the aforementioned judgment that ‘[T]he vacancies which occurred prior to amended rules would be governed by the old rules and not by the amended rules.’ We are also unable to accept the argument of the Respondents that the Applicants had been given the benefit of financial up gradation under ACP Scheme and would, therefore, be eligible for promotion only to the post for which financial up gradation under ACP Scheme was given. This argument is clearly specious because the scale of both Grade-II Stenographer and Grade-II DASS were the same. It cannot, therefore, be said that the financial up gradation under the ACP Scheme was only with respect to promotion to Grade-II of Stenographers. It could equally be for Grade-II DASS.
9. In OA-503/2005, the facts are that the Recruitment Rules for promotion to the post of Grade-I of DASS were amended on 28.05.2002. Further in this case, the Applicants were considered for promotion in the year 2003 as per the amended rules and were promoted as Sr. P.A. The Applicants accepted the promotion to the post of Sr. P.A. unconditionally and without any protest. It may be mentioned that in another case of S.K. Walecha and Ors. OA-1195/2001 the applicants were overlooked for promotion to Grade-I DASS by the DPC in its meeting held on 13.12.2000 on the ground that stenographic cadre was a skilled cadre and the DPC held that their case could not be considered because in their cadre there could not be any lateral entry from other cadres and grades. It is also interesting to note that in Walecha’s case the applicants were promoted to Sr. P.A. but they refused promotion and gave their option for DASS-I. The Tribunal allowed Walecha’s case and directed the respondents to promote them to DASS Grade-I as per Rules. The case of S.K. Walecha (supra) was cited by the Applicants in OA-503/2005 Dhoom Singh and Anr. v. GNCTD and Anr. The Respondents in OA-503/2005 distinguished S.K.Walecha’s case from the facts in OA-503/2005 by stating that ‘In the said cases, those applicants had protested and did not accept the promotion as Sr. P.A. while in the present case the applicants did not protest and accepted the promotion to the post of Sr. P.A.’ While in one case the same Respondents argue that promotion of such persons to DASS-I who protested against their promotion to Sr. P.A. is justified because they protested such promotion and in the instant case they are arguing that because the applicants protested against the promotion, they would be disqualified for further promotion. Thus, it seems that the Respondents have been taking contradictory stand suiting their convenience according to the facts of different cases. OA No. 503/2005 is also distinguishable from the instant case because in the former, the Applicants were not eligible for promotion before the amendment of the Recruitment Rules and became eligible only after the Rules had been amended. In the instant case, the Applicants were eligible for promotion much before the amendment of the Recruitment Rules on 7.06.2007. In our view, therefore, the facts in OA-503/2005 not only not support the case of the Respondents but in fact support the case of the Applicants.
10. On the basis of the above, we allow the OAs and direct the Respondents to consider the case of the Applicants for promotion to Grade-II of DASS at the time when they became eligible for such promotion by holding a fresh review DPC. If the Applicants are promoted to the post of Grade-II DASS on the recommendations of the DPC, they would be eligible for all consequential benefits except back wages. The above directions may be implemented within a period of four months from the date of receipt of a certified copy of this order. The parties are left to bear their own costs.
This order disposes of OAs No. 1152/2007, 1167/2007 and 1227/2007.