JUDGMENT
Vipin Sanghi, J.
1. This petition under Article 226 of the Constitution of India is directed against the order dated 10th April, 2003 and 30th September, 2003 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as the Tribunal), whereby the Tribunal dismissed the Original Application bearing No. 3058/2002 and the Review Application No. 277/2003 and MA No. 2022/2003 respectively filed by the petitioner.
2. The facts in brief are that the petitioner was appointed as Public Prosecutor in Central Bureau of Investigation (CBI) on 22nd January, 1982. He belongs to the Scheduled Castes reserved category. He was promoted as Sr. Public Prosecutor (Sr. P.P.) on 28th December, 1987 and was further promoted as Deputy Legal Adviser (DLA) on 21st September, 1998.
3. The next promotional post is that of Additional Legal Adviser (ALA) and according to the petitioner, for promotion to the said post of Additional Legal Adviser, the requirement was of three years’ regular service in the grade of Deputy Legal Adviser which has, since the year 2000, been changed to five years’ regular service in the grade of Deputy Legal Adviser.
4. The petitioner had a grievance that he was due to be considered for promotion from the post of Public Prosecutor to the post of Sr. Public Prosecutor upon completion of three years’ regular service, which he completed in January, 1985. His grievance was that even though the Departmental Promotion Committee met on two occasions in the year 1985, his case was not even taken up for consideration and that he was considered for promotion to the post of Sr. Public Prosecutor only in the end of the calender year 1987 along with the General category candidates and he could join the said post on 5th January, 1988. His grievance was that on account of delay in consideration of his case for promotion, and consequent delay in his promotion to the post of Sr. Public Prosecutor, his further promotions to the post of Deputy Legal Adviser and Additional Legal Adviser were delayed.
5. The petitioner filed OA NO. 1048/2002 before the Tribunal claiming promotion to the post of Additional Legal Adviser. The same was disposed of on 10th May, 2002 with a direction to the respondents to consider the petitioner’s representations. These representations were rejected by the respondents on 27th September, 2002. In the meantime, private respondent Nos. 4, 5 & 6 were promoted to the rank of Additional Legal Adviser and Sh. Gopal Saran, who was respondent No. 7 before the Tribunal, was given current charge of Additional Legal Adviser vide order dated 3rd July, 2002.
6. Aggrieved by the aforesaid actions of the respondents, the petitioner filed OA No. 3058/2002 which was dismissed by the Tribunal by its order dated 10th April, 2003, which has been impugned in the present petition. To complete this factual narration, we may observe that the petitioner earlier preferred WP(C) No. 4330/2003 to challenge the order dated 10th April, 2003 before this Court. However, the same was dismissed as withdrawn on 22nd July, 2003 while giving liberty to the petitioner to approach the Tribunal with an application for review. Thereafter, the petitioner preferred review application No. 277/2003 along with MA No. 2022/2003, which has also been rejected by the Tribunal vide its order dated 30th September, 2003.
7. Before the Tribunal, the respondents contested the claims of the petitioner, firstly on the ground that the claim of the petitioner for promotion to the post of Sr. Public Prosecutor in 1985 (as opposed to 1987-88 when he was promoted) is stale and time barred, and secondly on the ground that the same is even otherwise devoid of any merit. The Tribunal did not agree with the contention of the petitioner that in such matters condensation of delay should not be refused. The Tribunal took note of the fact that the petitioner is a law graduate and is working in the legal field and that if he was aggrieved of delay in the grant of promotion to the post of Sr. Public Prosecutor, or the non consideration of his case for promotion to the post of Deputy Legal Adviser (DLA) when, according to him, he was due to promotion, he should have taken steps within the period of limitation provided by law. Consequently, the Tribunal did not condone the delay in filing of the original application by the petitioner. In any event, the Tribunal proceeded to consider the claim of the petitioner on merits as well.
8. The stand of the respondent on merits is that the petitioner having been appointed on 22nd January, 1985, he completed the requisite three years service as Public Prosecutor only on 22nd January, 1985. For determining the eligibility of candidates for promotion to the next higher post, the cut off date is 1st January of the calender year in which the candidate is to be considered. Consequently, since the petitioner had not completed three years’ qualifying service as on 1st January, 1985, he was not eligible for being considered for promotion in respect of vacancies of 1985. He became eligible for promotion to the post of Sr. Public Prosecutor only in the year 1986. He was accordingly considered for the year 1986 when the Departmental Promotion Committee met, and he was promoted at the earliest opportunity vide order dated 28th December, 1987.
9. The further claim of the petitioner that he had become eligible for promotion to the post of Deputy Legal Adviser in 1995, and that he should have been promoted in that year itself was also contested by the respondents. The respondents stated that as per the Recruitment Rules for the post of Deputy Legal Adviser, the officer should have put in seven years’ regular service as Sr. Public Prosecutor to become eligible for consideration for promotion to the post of Deputy Legal Adviser. Since the petitioner had been promoted as Sr. Public Prosecutor with effect from 5th January, 1988, he became eligible for being considered for the post of Deputy Legal Adviser only on 5th January, 1995. The respondents further stated that the petitioner’s senior, who were eligible in the years 1995 and 1997 were considered for promotion in the respective years. The petitioner had not been superseded by any of his junior at any point of time.
10. According to the respondent, the posts of Sr. Public Prosecutor, Deputy Legal Adviser and Additional Legal Adviser are all Group ‘A’ posts, they are all selection posts and in matters of promotion from one Group ‘A’ post to another, there is no reservation provided for the reserved classes as per the Government Policy. Candidates belonging to the reserved categories are considered along with General category candidates and promotions are made on the basis of selection. The Tribunal took note of the Central Bureau of Investigation (Legal Advisers & Prosecutors) Recruitment Rules, according to which the post of Additional Legal Adviser has been classified as “General Central Service, Group ‘A’ Gazetted Non-Ministerial” and for promotion to the said post, the requirement is five years in the regular service in the post of Deputy Legal Adviser, and that the promotion is to be made on the basis of the selection. The Tribunal also took note of the DOPT’s memorandum dated 30th November, 1991 which lays down that reservation is applicable only to the lowest rung in respect of posts falling in Group ‘A’ and that benefit of reservation in the post of Additional Legal Adviser is not available when promotions are made by selection within Group ‘A’.
11. It is important to note that before the Tribunal, the petitioner did not file any rejoinder or other document to controvert the stand taken by the respondents. Even before us, in the present writ petition, the petitioner has not controverter the factual basis which is the foundation of the impugned order of the Tribunal. Even at the stage of review, the petitioner could not point out as to which argument of the petitioner had not been considered by the Tribunal while passing its earlier detailed order dated 10th April, 2003.
12. Before us, the learned Counsel for the petitioner has once again not disputed the factual position as recorded by the Tribunal. The contention of the petitioner before us is that the Tribunal had failed to take note of the 77th Amendment of the Constitution whereby Article 16(4A) has been added.
13. The Article 16(4A) read as follows:
Nothing in this article shall prevent the State from making any provision for reservation [in matters of promotion, with consequential seniority, to any class] or classes of posts in the services under the State in favor of the Scheduled Castes and the Scheduled Tribes which in the opinion of the State are not adequately represented in the services under the State.
14. This sub Article was inserted by the Constitution (77th Amendment) Act, 1995 with effect from 17th June, 1995. The petitioner has also filed and relied upon office memorandum dated 21st January, 2002, whereby it was decided “to negate the effects of the DOP & T OM dated 30th January, 1997 by amending Article 16(4A) of the Constitution right from the date of its inclusion in the Constitution, i.e., 17th June, 1995 with a view to allow the Government servants belonging to SCs/STs to retain the seniority in the case of promotion by virtue of rule of reservation. In other words, the candidates belonging to general/OBC category promoted later will be placed junior to the SC/ST Government servants promoted earlier even though by virtue of the rule of reservation.”
15. We are unable to appreciate the argument of the petitioner, since the said Constitutional Amendment and the OM relied upon by the petitioner have no relevance so far as the facts of the present case are concerned. The present is not the case concerning inter se seniority of persons belonging to the reserved category on the one hand and those belonging to the General category on the other hand. As noticed above, the petitioner has not been superseded by any of his junior. Secondly, for promotion from one post falling in Group ‘A’ to a higher post falling in the same group as per Government policy, there is no reservation provided. Thirdly, so far as the petitioners promotion to the post of Sr. Public Prosecutor is concerned, the same took place in the year 1987/88 and neither the constitutional amendment, nor the office memorandum dated 21st January, 2002 have retrospective effect.
16. In view of the aforesaid, we see no merit in the present petition. The impugned orders passed by the Tribunal are well-reasoned and do not call for interference by us in our extraordinary jurisdiction.
17. Dismissed.