JUDGMENT
V. Ramakrishnan, Vice Chairman
1. The applicant a Railway servant who belongs to a Scheduled Tribe is aggrieved by what he regards as his belated promotion to the junior scale of Class I (Group-A) service with effect from Nov. 1982 According to him, he should have been promoted as Group A Officer with effect from 1980.
2. The applicant submits that he joined Railway Service as Ticket Collector as per order dt. 14.5.1962. Subsequently in June, 1963 the applicant changed the cadre of Commercial Apprentice in the same Division. By an order dated 21st July 1965, on completion of the apprenticeship the applicant was absorbed as Rates Inspector in Class III service and subsequently he was transferred as Commercial Inspector in the grade of Rs. 250-380 from
12th December, 1965. He made further advances in his career from time to time. He was promoted to the grade of Rs. 550-750 and later on to the scale of Rs. 700-900 w.e.f. 31.3.1976. He represented to the authorities that he should have been promoted to the scale of Rs. 700-900 from a date earlier than 31st March 1976 and claims that it was due to him from 1.2.1975 (para 4.2 of the pleadings). He says that he was informed that he would be given proforma promotion w.e.f. 1st February 1974.
Later on, he claimed that he should be further promoted to the Gazetted Class II Post in the then scale of Rs. 650-1200 and that proforma promotion to Class II post should be made available to him from 1st Juno 1975. As this was not agreed to by the Railways Admn. he filed a petition before the Hon’ble High Court of Gujarat. This petition was allowed by the learned Single Judge of the Hon’ble High Court who directed that he should be considered for promotion to Class II post w.e.f. June 1, 1975 and if he found fit be promoted as such w.e.f. that date and he should be given promotion on regular basis w.e.f. 1st June, 1975 with all monetary and consequential benefits. A letters patent appeal before the Division Bench of the High Court was dismissed and S.L.P. was rejected by the Supreme Court on 31.7.87. But even prior to that date, the Railways issued a memorandum dated 2.3.1987 (part of Annexure A-11) complying with the orders of the Gujarat High Court and promoted the applicant to the post of Assistant Commercial Inspector Class II w.e.f. 1.6.75 on regular basis with all monetary and other benefits. As a result of this order giving him retrospective promotion to Class II post w.e.f. 1.6.75 his case for promotion to the junior scale of Group A service was examined and as per the recommendations of the Review D.P.C. held on 30.7.87 he was promoted to the junior scale of the Indian Railway Traffic Service (IRTS) Group A service w.e.f. 20.11.82 as at Annexure A-7. He was not satisfied with the date of the promotion and wanted it to be advanced. He filed O. A./112/92 before Ahmedabad Bench of the Tribunal. The Tribunal disposed of the O.A. by its order dated 2.9.1993 kept at (Annexure A-13). It narrated the sequence of events and noted that Railways took the view that as the panel for 1980 vacancies was effective from 1982 and persons in that panel were given promotion with effect from 17.11.82, the applicant was also given promotion w.e.f. November 1982. It however observed that the accident of the date of the meeting of the D.P.C. and the date of communication of the approval by the U.P.S.C. cannot be allowed to deny the date of promotion from an earlier date if he was otherwise eligible for the same grade under the rules. The Tribunal noted that the applicant had submitted a representation to the Railways and disposed of the O. A. with the following orders:-
“The representation of the applicant dated 12.12.1991, at Annexure A-11, with reference to which Adviser (Management Services), Railway Board reportedly gave a personal hearing to the applicant vide para 12 of the reply of the respondents, should be re-examined by the respondent Railway Board in the light of the observations made by this Tribunal and a speaking order should be passed by the Railway Board with reference to the request of the applicant for being given 1980 as the deemed date of promotion to the Junior Scale of I.R.T.S. The speaking order should be passed by the Railway Board within three months from the date of receipt of the order of the Tribunal and communicated to the applicant within a fortnight of the passing of the order. If the applicant feel aggrieved by that order, it is open to the applicant to approach this Tribunal under law. On the other hand, if the Railway Board accedes to the request of the applicants, he should be promoted with consequential benefits within a month of the passing of the order.
The application is disposed of accordingly.
No order as to costs.”
We find from the nothings in the relevant file dated November 1993 that this matter was examined and the Railway Admn. took the view that the applicant was considered for Group A junior scale of the IRTS only against the vacancies of 1980 and that too from the extended zone of consideration. It also noted that the regular DPC for the vacancies of 1980 had met on 14.9.82 and all the four vacancies had been filled up as per the recommendations of the DPC with effect from November 1982. The Review D.P.C. which met on 30,7.87 recommended the applicant be included in the panel formed for 1980 vacancies and in the revised panel his name was added at the bottom at Sr. No. 5. Consequently the applicant would be entitled to promotion to Group A service only w.e.f. November 1982 and not from an earlier date. This was communicated to the applicant by an order dated 17.11.93 as at Annexure A which is challenged in the present O.A.
3. The applicant initially approached the Bombay Bench of this Tribunal challenging the order dated 17.11.93 in OA/915/94 before that Bench but on his transfer to Gujarat, the Hon’ble Chairman had transferred the O.A. to this Bench in 1998. Mr. K.K. Shah initially appeared as the advocate for the applicant but subsequently the applicant retired his Counsel and argued the matter in person.
We have heard the applicant in person and Mr. N.S. Shevde for the Railway administration and have also gone through the relevant file and the original minutes of the meeting of the D.P.C. held on 14.9.82 to consider the 1980 vacancies. We have also seen a copy of the Notification dated 30.12.82 promoting various officers to junior scale of the Group A service of IRTS w.e.f. 17.11.82.
4. The grounds urged in support of the application in the pleadings as also in the submissions made by the applicant are as follows:-
(a) The Hon’ble Gujarat High Court had directed that the applicant should be promoted to Class II post w.e.f. June 1, 1975 and should also be extended all consequential benefits. This has been confirmed by the Supreme Court of India. Mr. Meena says that on his appointment to the Class II service w.e.f. 1.6.75 he became eligible for being promoted to Class I post (Group-A) in 1980 and he had a right to be appointed to the junior scale of I.R.T.S. w.e.f. 1980 instead of from 1982 and the action of the respondents is arbitrary and discriminatory and is violative of Articles 14 and 16 of the Constitution of India.
(b) The applicant submits that he belongs to the S.T. category and was appointed against reserved quota by interchanging the S.C. vacancy with S.T. vacancy. According to him as point No. 1 is reserved for S.C. he should be given the first vacancy and the general candidates can claim only the second to fourth vacancies. (c) The applicant also draws attention to the observations of the Tribunal in its order dated 2.9.93 while disposing of OA/112/92. He refers in particular to para 2 of the order which is as follows;- "2. This explanation of the respondents does not appear to be satisfactory. Admittedly, the applicant was promoted to Group B post from 1.6.1975, with retrospective effect and admittedly he could have been considered for promotion against 1980 vacancy, on the basis of completion of minimum length of service in Group-B for promotion to Group-A. The accident of the date of the meeting of the DPC and the date of communication of approval by the U.P.S.C. cannot be allowed to deny the legitimate right of promotion from an earlier date to the applicant if he is otherwise eligible to that post according to Rules." According to him, the Tribunal had held that the delay in holding the D.P.C. Meeting of either original D.P.C. or the Review DPC cannot deprive him of his promotion from 1980. (d) He contends that the stand of the respondents that in respect of 1980 vacancies persons were considered by the regular D.P.C. only in September 1982 and were promoted only from November 1982 and the applicant cannot get promotion from an earlier date is not tenable. He seeks to make a distinction between a regular D.P.C. and a Review D.P.C. He says that what ever might have happened at the time of the regular D.P.C., now that there is an order to give him consequential benefits and a Review DPC was convened to assess his suitability for 1980 vacancies and found him fit, he should have been appointed to Group A service in 1980 itself and not in 1982. (e) He states that the impugned order dated 17.11.93 clearly brings out that he has been inducted to Group A Service against 1980 vacancies but does not promote him from that date but from 20.11.82 which is the date of advice of the U.P.S.C. He submits that once it is conceded by the respondents that he is entitled to 1980 vacancies, he should have been promoted with effect from that year and not two years later.
(f) The applicant draws our attention to the order dated 28.10.87 as at Annexure A-8 which creates a supernumerary post to provide for the applicant’s appointment in Group A Service w.e.f. 20.11.82 to 31.12.88 or from the date a permanent vacancy in Group A post is available in IRTS whichever date is earlier (emphasis supplied). According to him this would show that the Railways had envisaged the possibility of this promotion to Group A service from a date earlier than 20.11.82. For these reasons, he says that his promotion to Group A Service should be ante-dated.
5. Mr. Shevde for the Railways resists the application.
He submits that the applicant was not falling within the zone of consideration in the normal course for 1980 vacancies. He was not coming even with the extended zone of consideration for vacancies of 1978-1979. In respect of 1980 vacancies he was not coming within the normal zone of consideration but within the extended zone of consideration as he belonged to the S.T. As such, he was coming within the extended zone of consideration for the first time for the vacancies of 1980 and the regular D.P.C. to consider the promotion of officers for 1980 vacancies met only on 14th September 1982 and placed the four officers in the panel. They all belonged to the General Category and were senior to the applicant.
Mr. Shevde says that the general principle is that were promotions of officers are made on the recommendations of the D.P.C. presided over by a Member of the UPSC, the date of regular promotion is the date of Commission’s letter forwarding the Minutes conveying its approval or the date of actual promotion whichever is later. In the present case, a number of persons were considered initially for the 1980 vacancies by the D.P.C. which met in
Septr. 1982 and it had prepared a panel of four officers for Western Rly. On account of the Court orders the applicant was considered by the Review D.P.C. and his name was included at Sr. No. 5 of that panel on the basis of the recommendations of the Review DPC which had met on 30.7.1987. Mr. Shevde says that there is no rule or regulation which provides that promotion should be made from the exact date on which the vacancies arose and that such vacancies are to be filled up on the same date. On the other hand, there are instructions which clearly specify that regular promotion takes effect only when the UPSC letter indicating its approval is received or from the date of actual promotion of the officer whichever is later. He says that the applicant cannot be treated on a superior footing as compared to those senior to him who were considered for the 1980 vacancies. Mr. Shevde also draws our attention to the Department of Personnel O.M. dated 24th December 1980 particularly para 4(d) which states that promotions will be made in the order of the consolidated select list but such promotion will have only prospective effect even in cases where the vacancy relates to an earlier year. A copy of this O.M. is enclosed as Annexure R-1 to the reply statement. The respondents also have relied on the decision of the Supreme Court in the case of Union of India v. K.K. Vadhera, 1990 (1) SLR 817=1990(1) SLJ 106 (SC), where the Apex Court had held that after a post falls vacant, the date of promotion to that post should be from the date the promotion is granted and not from the date on which such post falls vacant.
Mr. Shevde brings out that the applicant was considered by the Review D.P.C. which had taken the place of the regular D.P.C. held in September 1982 and was given promotion w.e.f. 20.11.82. He states that four officers were recommended by the regular D.P.C. and were promoted w.e.f. 17.11.82. However, some disciplinary proceedings were pending against the applicant as on that date and this resulted in infliction of penalty of censure by an order dated 19.11.82 and the applicant was granted promotion with effect from the next date, namely 20.11.82 as he was considered on the same footing as the officers who were promoted on the basis of the recommendations of the regular D.P.C.
6. We have carefully considered the rival contentions.
7. As has been brought out above, the main contention of the applicant is that he gets an automatic right for being promoted to Group A Service from 1980 when he became eligible to be considered against those vacancies and was found fit, in the light of the orders of the High Court of Gujarat and confirmed by the Supreme Court and also observations of the Tribunal while disposing of OA/112/92. It is also his case that he belongs to S.T. and as his case was considered by the Review D.P.C., he should be given promotion from a date earlier than his seniors who were considered by the regular D.P.C. in Sept. 1982 in respect of 1980 vacancies and were promoted only in November 1982.
8. We do not find force in the argument that merely because he was assessed by the Review D.P.C. in July 1987 against 1980 vacancies he should automatically be promoted w.e.f. 1980 when the regular D.P.C. in respect of the 1980 vacancies met only in September 1982 and promotion was given to the person in the panel formed by the regular D.P.C. only w.e.f. November 1982. If the applicant had been promoted to Class II service w.e.f. 1.6.75 in the normal course instead of from a retrospective date on the basis of Court orders he would have become eligible for consideration for the first time for 1980 vacancies and he would have been considered by the regular D.P.C. which met on 14.9.1982. We find that the recommendations of the regular D.P.C. were accepted by the Ministry of Railways who promoted the four persons as recommended by the D.P.C. in respect of Western Railway w.e.f. 17.11.1982. The applicant is admittedly junior to the others and he was coming only
within the extended zone of consideration for 1980 vacancies on account of the fact that he belongs to the reserved category. He was thus getting accelerated promotion and he cannot go above those persons who were senior to him at the lower level. A Review D.P.C. may be convened on a number of grounds and one ground is that where the seniority of the person is revised with retrospective effect resulting in variance with the seniority list placed before the D.P.C. In the present case on account of Court orders, the applicant got into Class II service on regular basis w.e.f. 1.6.1975 and his seniority was revised. Accordingly his case was considered by the Review D.P.C. The scope and procedure of the Review D.P.C, have been laid down in the consolidated instructions of the Department of Personnel and Training dated 10th April, 1989 particularly para 18.2 and 18.3 thereof which reads as follows :-
“18.2 : A Review DPC should consider only those persons who were eligible as on the date of meeting of original DPC. That is, persons who became eligible on a subsequent date should not be considered. Such cases will, of course, come up for consideration by a subsequent regular DPC. Further, the review DPC should restrict its scrutiny to the CRs for the period relevant to the first DPC. The CRs written for subsequent periods should not be considered. If any adverse remarks relating to the relevant period were toned down or expunged, the modified CRs should be considered as if the original adverse remarks did not exist at all.
18.3 : A Review DPC is required to consider the case again only with reference to the technical or factual mistakes that took place earlier and it should neither change the grading of an officer without any valid reason (which should be recorded) nor change the zone of consideration nor take into account any increase in the number of vacancies which might have occurred subsequently.”
In other words, the Review D.P.C. takes the place of the regular D.P.C. to provide for those cases which were left out of consideration by the regular D.P.C. Para 17.10 and 17.11 of these instructions makes it clear that the date of regular promotion will be the date of the U.P.S.C.’s letter communicating its approval or the date of regular promotion of the officer whichever is later. In the present case, the officers were promoted on the basis of the recommendations of the regular D.P.C. to Group A Service w.e.f. 17.11.82. If the applicant had been considered by the regular D.P.C., he would not have been promoted earlier than 17.11.82 and he would have been placed below, the officers who were actually promoted on the basis of the recommendations of the regular D.P.C. We have gone through the original proceedings of the D.P.C. held on 14.9.82 and also the relevant notes. It is seen that there were four vacancies in the Western Railway for Group A Service. From the notings it is clear that vacancies for 1980 were considered for the first time by the D.P.C. which met on 14.9.82. We reject the contention that merely because the applicant’s case was considered by the Review D.P.C. on account of retrospective promotion to Class II service on the basis of the Court orders he should be treated on a superior footing as compared to the persons who were considered by the regular D.P.C.
9. The applicant also had contended in the rejoinder statement that as he belongs to the S.T. and as the roster point for S.C. is No. 1 which is interchangeable with ST., he should be considered as senior to the others. He also argues that the vacancy for SC/ST was actually available from 1977-78 but in the absence of the candidates it was carried forward. He became eligible in the year 1980 and when he was found fit by the D.P.C. he was to be
allotted the year 1978. In any case, as Point No. 1 is reserved for S.C. he should rank senior to the other General candidates.
We do not find any merit in this argument. When the applicant was not at all eligible and was not coming within even the extended zone of consideration for earlier years, he cannot be considered for vacancies of those years. The fact that he was found eligible for 1980 vacancies does not in any way give him a right for promotion against the unfilled reserved vacancy of 1978 or 1979. The argument that as a roster point No. 1 is reserved for S.C., he should rank senior to the others is misconceived. We do not know the point at which roster was to be operated for 1980 vacancies. In any case, if he falls within the extended zone of consideration, he may be considered for such vacancies if the roster point is available. But this does not give him any right to rank above those who were promoted in the normal course. In the present case, the applicant is coming within the extended zone of consideration and he thus has got accelerated promotion and he cannot rank above those who were empanelled by the regular D.P.C. in Septr. 1982. The contention that as he belongs to S.T. category he should not only be given accelerated promotion but also his promotion should be advanced even when he is not in the extended zone of consideration is without any substance and is rejected.
10. The applicant has relied on the observations of the Tribunal while disposing of OA/ 112/92 referred to earlier. While the Tribunal had made some observation in para 2, in its final order dated 2.9.93 reproduced earlier it has only directed the Railway Board to pass a speaking order within three months. Such an order has been passed by the Railway Board i.e. order dated 17.11.93. This order does not specifically refer to the direction of the Tribunal in OA/112/92 but we find from the notings in the department’s file that this order was passed in compliance with the Tribunal’s direction.
While making certain observations in para 2 the Tribunal had not taken into account the general instructions of the Govt. that promotions will be only prospective. It had also not kept in view the observations of the Supreme Court in the case of Union of India v. K. K. Vadhera referred to supra. Para 5 of this judgment of the Supreme Court is reproduced below:-
“5. There is no statutory provision that the promotion to the post of Scientist ‘B’ should take effect from 1st July of the year in which the promotion is granted. It may be that, rightly or wrongly, for some reason or other, the promotions were granted from 1st July, but we do not find any justifying reason for the direction given by the Tribunal that the promotions of the respondents to the post of Scientists ‘B’ should be with effect from the date of the creation of this promotional posts. We do not know of any law or any rule under which a promotion is to be effective from the date of creation of the promotional post. After a post falls vacant for any reason whatsoever, a promotion to that post should be from the date the promotion is granted and not from the date on which such post falls vacant. In the same way when additional posts are created, promotions to those can be granted only after the Assessment Board has met and made its recommendations for promotions being granted. If on the contrary, promotions are directed to become effective from the date of the creation of additional posts, then it would have the effect of giving promotions even before the Assessment Board has met and assessed the suitability of the candidates for promotion. In the circumstances it is difficult to sustain the judgment of the Tribunal”.
Tribunal’s observation in O.A./l 12/92 is thus not binding as it is not in conformity with the directions of the Supreme Court.
We may also mention that the High Court of Gujarat had only directed to promote him to Class II Service w.e.f. 1.6.75 with normal benefits. It has not gone into the matter of his appointment for promotion to Group A Service. The reliance on the Tribunal’s observation or the High Court orders is thus of no assistance to the applicant. We reject his contention that the respondents have flouted the Court directions by promoting him from 1982 instead of from 1980 and that their action is arbitrary and discriminatory. In fact, if the applicant is promoted from a date earlier than his seniors who were assessed by the regular D.P.C. for 1980 vacancies the same is liable to be challenged by them as being discriminatory and violative of Articles 14 and 16 of the Constitution.
There is also no force in the contention of the applicant that as there is a reference to the 1980 vacancies in the impugned order at Annexure A it amounts to a commitment that he should be promoted from that date. This contention has been negatived in the light of the foregoing discussion particularly in the context of the directions of the Supreme Court in Vadhera’s case.
11. The applicant also has sought to argue that the Railways themselves had anticipated his promotion from a date earlier than 20.11.82 by virtue of order dated 28.10.87 as at Annexure A-8.
The relevant portion of this order is as follows;-
“Sanction of the Ministry of Railways is hereby accorded to the creation of a supernumerary post in Junior Scale (Grade Rs. 2200-4000) in the Indian Railway Traffic Service on the Western Railway to provide for the substantive appointment of Shri D.S. Neena, a Group ‘B’ Officer of the Traffic (Transportation) & Commercial Department, Western Railway, w.e.f. 20.11.1982 to 31.12.1988 or the date a vacant permanent Group ‘A’ post is available in I.R.T.S. whichever date is earlier.”
The applicant’s contention that this order envisages his promotion from a date earlier than 28.11.82, is based on a wrong assumption. The intention of this order is that supernumerary post will be created from 20.11.82 to 31.12.88 but if a vacant permanent Group A post in IRTS is available prior to 31.12.88 the supernumerary post will be upto the earlier date instead of upto 31.12.88. It does not mean that supernumerary post is proposed to be created, from a date earlier than 20.11.82. In any case, the applicant has no legal right to his appointment to Group A post from a date earlier than November, 1982.
12. We find that while the persons recommended by the regular D.P.C. were promoted from 17.11.82 the applicant has been given promotion only w.e.f. 20.11.82. The reason for this belated promotion was mentioned by Mr. Shevde stating that some proceedings were pending against him. We also find that this position has been explained in the relevant note dated 8.9.87 in the Railway Board’s file. Paras 1 and 2 of this note are reproduced as follows:-
“D.S. Meena’s case for retrospective promotion to the Junior Scale of IRTS, on the basis of selection, was considered by the DPC which met on 30.7.87. He has been recommended for inclusion in the junior scale panel relating to the selection held on 14.9,82. The said panel was effective from 17.11.82.
2. At the material time i.e. on 17.11.82, Shri Meena was figuring in a case in
which he was ultimately awarded the minor penalty of censure on 19.11.82. Mention of this punishment is available in the Confidential Report on Shri Meena for the year ending 31.3.83. The folder containing the Confidential Reports on Shri Meena for the period 19.6.76 to 31.3.86 was placed before the DPC which met on 30.7.87, as the officer’s case for retrospective promotion was required to be considered with reference to the selections held in the past on 14.9.82, 3.5.83, 23/24.4.85, 17/18 and 20.10.86. In deciding on the recommendation, obviously the DPC had taken note of the penalty of censure imposed on Shri Meena. Although the panel drawn by the DPC on the basis of selection on 14.9.82 was effective from 17.11.82, the appointment of Shri Meena may be given effect to from 20.11.82 i.e. the date following the date of imposition of the penalty of censure.”
If the departmental proceedings had been pending against the applicant at the time of the meeting of the regular D.P.C. and if he had been considered by the regular D.P.C. his case would have been considered but the recommendation of the DPC would have been kept in a sealed cover. The relevant instructions in this regard are contained in para 17.6, 17.6.1 and 17.6.2 of the consolidated instructions of the Department of Personnel & Training O.M. dated 10th April, 1989 which is reproduced as under :
“Sealed cover cases–Action after completion of disciplinary case/criminal prosecution.
17.6.1- If the proceedings of a DPC for promotion contain findings in a sealed cover, on the conclusion of the disciplinary case/criminal prosecution, the sealed cover or covers shall be opened. In case the Government servant is completely exonerated, the due date of his promotion will be determined with reference to the position assigned to him in the findings kept in the sealed cover/covers and with reference to the date of promotion of his next junior on the basis of such position. The Government servant may be promoted, if necessary, by reverting the junior most officiating person. He may be promoted notionally with reference to the date of promotion of his junior but he will not be allowed any arrears of pay for the period preceding the date of actual promotion.
17.6.2- If any penalty is imposed on the Govt. servant as a result of the disciplinary proceedings or if he is found guilty in the criminal prosecution against him, the findings of the sealed cover/covers shall not be acted upon. His case for promotion may be considered by the next DPC in the normal course and having regard to the penalty imposed on him.
13. In the present case, the applicant is not completely exonerated, as he was inflicted with the penalty of censure. In such a situation if he had been considered in the normal course alongwith others by the regular D.P.C. which met on 14.9.82 its recommendations could not have been acted upon, and his case for promotion would have been considered only by the next D.P.C. in the normal course, if departmental proceedings had been initiated against him prior to 14.9.82. This would have delayed his promotion beyond 20.11.1982. However, the Railway Admn. seems to have taken the view that as the Review D.P.C. which met on 30.7.87 had assessed him and found him fit for promotion and as proceedings were completed and the penalty of censure was awarded on 19.11.82, he was promoted w.e.f. 20.11.82.
14. The applicant is thus not entitled to any larger relief than what has already been
granted by the Railway administration by promoting him from 20.11.82.
15. In the light of the foregoing discussion, we hold that the O.A. is devoid of merit and we dismiss the same with no orders as to costs.