V.K. Agnihotri, Member (A)
1. In this OA the applicant has sought direction of this Tribunal to the official respondent to consider the applicant for promotion to the posts of Sub Officer and Station Officer from the date from which his junior, Shri Zile Singh, was promoted to those posts, with all consequential benefits.
2. The brief facts of the case are that the applicant joined Delhi Fire Service as Fireman on 01.08.1973. He was promoted as Leading Fireman on 25.11.1989. The applicant was selected by a duly constituted DPC in its meeting held on 08.11.1993 and was nominated to undergo the Course of Sub Officer at National Fire Service College (NFSC, for short), Nagpur in 1994. However, he could not join the Course as he reached the Institute late. In the meanwhile, on 26.01.1994, the applicant got involved in a criminal case in his personal and private capacity and was placed under deemed suspension on account of having remained in police custody for more than 48 hours. He was, therefore, not allowed to proceed for the next Sub Officers’ Training Course scheduled in 1995. The applicant was convicted by the Sub Division Judicial Magistrate but was subsequently acquitted by the Appellate Court, vide judgment dated 10.07.2003 and was consequently reinstated in service on 18.08.2003. The applicant completed Sub Officer’s Training Course in August 2004 and was promoted as Sub Officer on 04.01.2005. He made several representations to the official respondent to give retrospective effect to his promotion to the post of Sub Officer but to no avail. Hence the OA.
3. The applicant has stated that the action of official respondent, in denying him consequential service benefits upon acquittal in the court case, is illegal, arbitrary and discriminatory. Further, not giving retrospective effect to applicant’s promotion with reference to his junior, after his acquittal in the criminal case, is also contrary to law laid down by the Hon’ble Supreme Court in the case of Union of India and Ors. v. K.V. Jankiraman and Ors. 1993 (23) ATC 322. The applicant has further stated that he could be promoted retrospectively on the analogy of the case of Shri B.K. Pathak, Sub Officer, who was allowed to function as Station Officer without undergoing the prescribed pre-appointment training.
4. The official respondent (respondent No. 1) has contended that as per Recruitment Rules of the post of Sub Officer, passing of Sub Officer Course from NFSC, Nagpur is a mandatory and essential qualification for promotion to the post of Sub Officer. Similarly, as per Recruitment Rules of the post of Station officer passing of Station Officer and Instructor’s Course is also essential for promotion from the post of Sub Officer to that of Station Officer. Since the applicant has not passed this course, he cannot be given promotion from the date of promotion of his junior, if any.
5. The official respondent has further contended that Shri Zile Singh, Rank No. 710, is senior to the applicant and, therefore, he cannot be placed at par with his senior.
6. The private respondent (respondent No. 2) has chosen not to file any counter.
7. In his rejoinder, the applicant, apart from reiterating and elaborating on various averments made in the main application, has stated that admittedly training course at Nagpur is a pre-condition for promotion as Sub Officer and the applicant was sent for the course in 2004 after his acquittal in criminal case. After undergoing the said course, he was promoted in the year 2005. In this context, the questions to be answered are: Due to whose fault the applicant was sent on training belatedly? Whether any benefit of his acquittal has been accorded to him? Since he was acquitted by the court, he is entitled to all consequential benefits, including retrospective promotions.
8. During oral arguments, Shri A.S.N. Murthy, proxy counsel for Shri S.N. Anand, learned Counsel for the applicant, pleaded that in addition to giving promotion to the applicant as Sub Officer retrospectively on notional basis when his juniors were promoted in 1994, he should also be sent for training required for the next promotion to the post of Station Officer so that he could be promoted to that post too on notional basis from the date of promotion of his juniors. In this context, he cited the decision of the Hon’ble Supreme Court in the case of Union of India and Ors. v. K.V. Jankiraman and Ors. (supra), wherein it was held that upon exoneration in a criminal case, the applicant was entitled to notional promotion, if any, from the date his juniors were promoted.
9. Shri Ajesh Luthra, learned Counsel for official respondent, argued that as per the Recruitment Rules, passing of the relevant course from NFSC, Nagpur is a mandatory requirement for promotion. The applicant cannot, therefore, be given promotion from a back date. In this context, he cited the judgment of the Hon’ble Supreme Court in the case of Ranchhodji Chaturji Thakore v. Superintendent Engineer, Gujarat Electricity Board, Himmatnagar (Gujarat) and Anr. , wherein it was held that in case of reinstatement, upon acquittal, no entitlement for back wages is created. He also cited the judgment of the Hon’ble Supreme Court in the case of Mohd. Sartaj and Anr. v. State of U.P. and Ors. to argue that a candidate has to possess the minimum qualification prescribed under the rules on the date of recruitment.
10. We have heard the learned Counsel for the parties and perused the material on record.
11. The main contention of the official respondent is that the applicant cannot be promoted without passing the relevant training course and on this ground he cannot also be given promotion with retrospective effect, on notional basis, because on that date he would not have possessed the prescribed qualification. We do appreciate the fact that the authorities have prescribed a certain training programme in order to ensure that concerned officers are able to discharge their duties efficiently and effectively with adequate technical competence. This would, no doubt, be a very important consideration for putting a person on the job. However, we do not think that this would be a relevant consideration in deciding a case relating to notional promotion. Depending on the merit of the case, the authorities could consider waiving the requirement of passing the training for grant of notional promotion. This line of argument is further strengthened on account of the fact that the applicant has cited the case of one Shri B.K. Pathak (supra), who was promoted as Station Officer without undergoing the prescribed pre-appointment training. In the counter, the official respondent has neither denied this contention nor distinguished the case of Shri B.K. Pathak from that of the applicant.
12. The ratio of the judgment of the Hon’ble Supreme Court in the case of Ranchhodji Chaturji Thakore v. Superintendent Engineer, Gujarat Electricity Board, Himmatnagar (Gujarat) and Anr. (supra), cited by the learned Counsel for the official respondent, is not applicable in the present case insofar as the applicant herein is not asking for any back wages. Similarly, the judgment of the Hon’ble Supreme Court in the case of Mohd. Sartaj and Anr. v. State of U.P. and Ors. (supra), cited by the learned Counsel for official respondent, is also not relevant in the context of the present case insofar as we are not here concerned with direct recruitment. In the present case we are concerned simply with grant of notional promotion. Even, according to the Recruitment Rules (Annexure R-1), some of the qualifications, including educational qualifications prescribed for direct recruitment, have been waived in the case of promotees.
13. The facts of the case of Union of India and Ors. v. K.V. Jankiraman and Ors. (supra), cited by the learned Counsel for the applicant, are also not quite identical with the facts of the present case, since that particular case related to grant of arrears of salary from the date of notional promotion in the context of sealed cover procedure.
14. Taking the totality of facts and circumstances of the case into consideration, we find that the applicant has suffered for a period of more than 11 years, in terms of his career progression, on account of a case instituted against him in his private (and not official) capacity, which ultimately ended in acquittal. The promotion, which he would have, in the normal course, got in 1994, was ultimately given to him in the year 2005, without any fault of his. In the interest of equity to the applicant, we think that it is a fit case for consideration by the official respondent for grant of notional promotion to the applicant, with retrospective effect, as a special case, by waiving the condition of passing the NFSC course, if required.
15. In the result, the OA is partly allowed and disposed of with a direction to the official respondent to consider the case of the applicant for notional promotion to the post of Sub Officer from the date on which any of his junior was promoted, by granting appropriate waiver/relaxation, if any, required for the purpose. His case for promotion as Station Officer too may be considered accordingly as per rules. This exercise shall be completed, culminating in a reasoned and speaking order, taking into account our findings aforementioned, as expeditiously as possible and preferably within a period of three months from the date of receipt of a certified copy of this order. There will be no order as to costs.