JUDGMENT
B.A. Khan, J.
1. Appellant wants retrospective promotion on the post of Accounts Officer in the pay-scale of Rs. 3000-4500 from 2.1.1990 – the date he claims to have become eligible for this promotion. For this, he had filed CWP No. 3635/94 praying for a review DPC to be held to consider his case for retrospective promotion which stands dismissed vide order dated 22.5.2002 giving rise to this appeal.
2. Petitioner initially joined the services of the Board as Accounts Assistant on 24.9.1981. He was later promoted as Junior Accounts Officer on 26.7.1985 and then as Assistant Accounts Officer on 2.1.1987. His next promotional post was Accounts Officer. There was only one post of Accounts Officer under the recruitment rules of 1980 which was occupied and which was to be filled up 100% by promotion failing which by a transfer on deputation and failing which by direct recruitment. The rules of 1980 were then sought to be amended/revised by the rules of 1986 under which the eligibility prescribed for promotion to the post of Accounts Officer was that the candidate should be a graduate with seven years experience of accounts out of which he should have three years in the grade of Assistant Accounts Officer.
3. Appellant says that as he completed three years as Assistant Accounts Officer on 1.1.1990, he became eligible for consideration for promotion on that date against a newly created post of Accounts Officer (second post) which was incorporated in the Board’s reorganization plan which was approved by the Board and the Government also.
4. Appellant’s further case is that respondent Board held a DPC in March 1990 but newly created post of Accounts Officer was not reported to it which had deprived him of consideration and which ran counter to the terms of OM dated 10.3.1989, more particularly its para 2.4.2 which calls for holding of a review DPC in such situations. Appellant complains that he had been making repeated representations to respondents in this regard but in vain. He was ultimately informed by the Board vide letter dated 24.5.1993 that his case for promotion could be only considered after the finalisation of the recruitment rules. It was in this backdrop that appellant filed the writ petition alleging inaction of the respondents in this regard and prayed for a direction to them to hold review DPC as per para 2.4.2 (ii) of OM dated 10.3.1989 to consider his case for promotion to the post of Accounts Officer in the pay scale of Rs. 3000-4500 from 2.1.1990 and to fill up the post of the Accounts Officer since its creation.
5. This writ petition was opposed by the Board denying that there was any inaction on its part or that Appellant was denied promotion to the post of Accounts Officer. It was explained that post of Accounts Officer, at the relevant time, was governed by the recruitment rules of 1980 which rules were, however, sought to be revised by 1986 Rules which were not, however, approved by the Central Government. It was admitted that the second post of Accounts Officer was created in reorganisation plan of 1987. But the work requirement did not dictate its filling up. It was also submitted that appellant had no right to claim promotion against this post and that the provisions of OM dated 10.3.1989 which provided procedure to be observed by the DPC was also directive in nature. In any case Appellant was promoted vide order dated 31.5.1995 after the revised recruitment rules were notified.
6. Appellant filed a rejoinder affidavit to this and pointed out that posts created under reorganization plan were filled up and that board had not implemented the Environment Ministry’s directive dated 2.1.1992 in respect of such posts declaring appointments/promotions on these null and void. He also submitted that since his claim for promotion to the second post of Accounts Officer related to a period prior to the issuance of such directive, therefore, it could not be invoked at this stage to deny him the right of consideration. He also stated that posts created and upgraded pursuant to 1986 revised rules were filled up and that the second post of Accounts Officer only to which he was eligible for consideration was singled out and left vacant.
7. It was in this backdrop that writ court dismissed appellant’s writ petition holding:-
“In view of the fact that the amended rules had not come into force in view of the absence of approval of the Central Government, there could have no question of filling up of the post on the basis of any unamended rules. The additional post of Accounts Officer in terms of the rules of 1986 could not have been filled up because the said rules never came into force in the absence of the approval from the Central Government and thus there was no post in existence. Thus it is apparent from the letter of the Central Government dated 2.1.1992 that even if respondent No. 2 had filled in some posts earlier on the basis of any unapproved rules, the same have not to take effect.
The petitioner thus cannot be granted benefits on the basis of the post which was sought to be created by the amended rules of 1986 but which were never in fact approved by the Central Government. The second post was thus never created and it is only when the another set of amended rules came into force in 1995 only when the second post was created and the petitioner was appointed initially on ad hoc basis and was subsequently confirmed. The petitioner thus cannot be granted the benefit from 2.1.1990, the date when he became eligible for appointment to the post of Accounts Officer. In the absence of the post there could have been no occasion for holding the DPC. Moreover, the issue of amendment of rules was pending consideration which was only finalised in the year 1995.”
8. Appellant later sought review of this judgment and it also complained of a different pay scale having been granted to him on the promoted post which was also rejected.
9. Appellant assails the writ court judgment primarily on two counts, (i) that it had wrongly treated the second post of Accounts Officer to have been created under the revised recruitment rules of 1986 which were not approved by the Central Government; and (ii) had wrongly held that second post of Accounts Officer was never created and that there was no question of holding DPC.
10. Learned counsel Mr.Ajit Pudussery reiterated that the second post of Accounts Officer was created under the reorganization plan which was approved by the Board an the Government and which was required to be filled up and in which event appellant could have been promoted being the only eligible candidate at the relevant time on 2.1.1990. As the Board had omitted to report this vacancy of Accounts Officer to DPC and throw it open for consideration, it was, therefore, required to hold a review DPC in view of para 2.4.2 of OM dated 10.3.1989.
11. It must be pointed out at this stage that Respondent Union is also opposing this Appeal and has filed its counter to Appellant’s writ petition disputing that any new post of Accounts Officer was created in 1987 or that any such post could be created or approved by submitting of a reorganization plan. It is explained that creation and sanctioning of a post is done with the approval of Ministry of Finance and that no such sanction was ever given in the case of creation of second post of Accounts Officer proposed by the Board in its reorganization plan.
12. Whether second post of Accounts Officer was duly created is disputed by Union/respondent though it is admitted by the Board that it was projected in its reorganization plan. Mr.Pudussery submits that Board had the power to create any post under its regulations and once it had projected it in its reorganization plan, it should be taken to be duly created for being filled up. If that was so, why was the approval of the Central Government sought and required is not known. The stand of the Board, on the contrary, is that it was to be filled up under the revised recruitment Rules of 1986 and since these rules were not approved, the post could not be filled up. No record has been produced related to the exercise for creation of this post and the requirement of its approval by the Central Government. But even if it was assumed that this post was created and was available on 2.1.1990 – when he claims to have become eligible under the revised 1986 rules which were admittedly not sanctioned and notified, it was first to be thrown open for being filled up under some Rules and in this case the revised rules of 1986 under which Appellant claims he was eligible. But when these Rules were still in pipeline, how could the post be filled up by according consideration to Appellant.
13. We are also unable to appreciate how could Appellant invoke his right of consideration against a post which could not be filled up in the absence of the relevant Rules. His reliance on para 2.4.2 (ii) of OM dated 10.3.1989 is also misconceived on the face of it. The relevant para 2.4.2 (ii) provides:-
“2.4.2. Where a DPC has already been held in a year, and further vacancies arise during the same year due to death, resignation, voluntary retirement, etc. or because the vacancies were not intimated to the DPC due to error or omission on the part of the Department concerned, the following procedure should be followed:
(ii) In the second type of cases of non-reporting of vacancies due to error or omission (i.e. though the vacancies were there at the time of holding of DPC meeting they were not reported to it) it results in injustice to the officers concerned by artificially restricting the zone of consideration. The wrong done cannot be rectified by holding a second DPC or preparing an year wise panel. In all such cases, a review DPC should be held keeping in mind the total vacancies of the year.”
14. It must be made clear at the very outset that this OM provides a procedure to be observed by the DPC in transacting its business. It does not contemplate conferring of any substantive rights on an aspirant for promotion. Moreover, the provisions of the relevant para deal with a different situation altogether and contemplate a position where vacancies are not intimated to DPC due to error or omission on the part of the department in which event a review DPC is advised to be convened. It is nobody’s case in the present appeal that respondent/Board had failed to report the vacancy of the second Accounts Officer to DPC by any error or omission. The case of the Board is that this post projected in the reorganization plan could not be filled up for want of approval to the revised recruitment rules of 1986 and as soon as these rules were finally approved and notified in 1995, appellant was promoted to the post.
15. The invoking of para 2.4.2 becomes irrelevant on the face of it and the question of ordering any review DPC on its basis does not arise.
16. This Appeal, therefore, fails and is dismissed. The writ court judgment is affirmed though on a different reasoning.