JUDGMENT
R.K. Ahooja, Member (A)
1. All the three OAs filed by the same applicant are being disposed of by this common order.
2. The reliefs sought for by the applicant in these OAs are as follows – In OA No. 2221/ 94 the applicant has sought a direction to the respondents to hold review DPCs for his promotion and confirmation as Deputy Legal Adviser and Additional Legal Adviser with reference to the dates on which the case of Shri N. Krishnamurthy were considered and that similarly his further promotions to the grades of Joint Secretary, Additional Secretary, Special Secretary and Secretary be reviewed with consequential difference of pay with interest as also the exemplary cost of Rs. 50,000/- and Rs. one lakh as compensation. In OA No. 429/95 he has apart from the aforesaid reliefs also sought for payment of arrears of pay with interest. In OA No. 432/95 he has sought a direction to the respondents to hold a review DPC with reference to the promotion of Shri N. Krishnamurthy to the grade of Joint Secretary and Legal Adviser. The reliefs sought for in all the three OAs relate to
consideration of his promotion with reference to Shri N. Krishnamurthy and secondly regarding payment of arrears of pay on the basis of his promotion with retrospective effect along with interest at the rate of 20%.
3. The applicant on selection by the UPSC was appointed against a reserved post to officiate as Assistant Legal Adviser in the Ministry of Law with effect from 1.9.1976. The UPSC’s advertisement stipulated that the post was permanent but the appointment would be made on a temporary basis. It was further stated that the appointee would be on probation for a period of two years. It appears that though the advertisement for the post was issued on 27.3.1976 the reserved vacancy had arisen in 1974 on point No. 36 of the 40 point roster for reservation. Earlier on 31.5.1975 the UPSC had issued an advertisement for three vacancies including the one reserved for scheduled caste. However, no suitable scheduled caste candidate was available but respondent No. 6. Dr. V.K. Aggarwal was appointed against one of the unreserved posts. The first grievance of the applicant has been that since his appointment was against a reserved vacancy of 1974, he was entitled to seniority above respondents Nos. 6 and 9, who were appointed against general vacancies of 1975, in terms of the slot based reservation rule of seniority which prevailed up to 1986. His second grievance was that though the department undertook the confirmation of Assistant Legal Advisers in 1979 and certain number of his juniors were confirmed with effect from 18.4.1979 the applicant was ignored for such confirmation. He alleged that on the basis of this confirmation a DPC was convened in 1979 and on the basis of incorrect seniority position considered the cases of certain Assistant Legal Advisers for promotion as Deputy Legal Adviser and recommended two of his juniors for appointment and promotion. These appointment took place with effect from 25.2.1980 and 13.3.1980 respectively. Thereafter a seniority list was circulated in which the applicant was shown below his erstwhile juniors. The applicant made a representation but the same not having been considered favourably he filed a writ petition before the High Court which came to be transferred to the Tribunal as TA 814/85. The said TA was decided on 14.11.91 whereby the respondents were directed to hold a review DPC to consider the case of confirmation of the applicant with effect from 1.9.1978 and thereafter to also reconsider his case for promotion by a review DPC in case he was confirmed from an earlier date for promotion to the post of Deputy Legal Adviser. The review DPC which was convened recommended and approved his confirmation with effect from 1.9.1978 and this date of confirmation was notified by an order dated 20.7.1992 (Annexure-4). Following a CCP No. 308/92 an order was issued on 13.11.1992 (Annexure-5) showing the applicant at serial No. 2 in the grade of Assistant Legal Adviser as on 18.4.1979, The applicant states that in this seniority list he is clearly senior to one Shri N. Krishnamurthy. The applicant’s case for promotion to Deputy Legal Adviser was also considered on the basis of the revised seniority list and approved with effect from 25.2.1980 retrospectively vide notification dated 7.5.1993 (Annexure-A-6). According to the applicant the seniority in the grade of Deputy Legal Adviser was to be determined on the basis of the date of substantive appointment and as appointment of Shri N. Krishnamurthy was made substantive at a later date than that of the applicant consequently he was deemed to be senior to Shri Krishnamurthy. He points out that till 1988 the rules provided for confirmation in each grade separately and it was only after the amendment of the rules in 1988 with prospective effect that confirmation was required in service only on a one time basis. Being senior to Shri Krishnamurthy it is the applicant’s case that he would be also deemed senior to all others to whom Shri Krishnamurthy was senior. Since this was not done, the applicant made a representation dated 27.5.1993 (Annexure-9) which according to him has not been decided so far despite a lapse of 16 months. The case of the applicant
was also considered by a review DPC on 14.9.1993 for promotion to the post of Additional Legal Adviser. The applicant alleges that Dr. V.K. Aggarwal, who was junior to him as Assistant Legal Adviser participated in the said review DPC in which the applicant was approved for promotion retrospectively as Additional Legal Adviser with effect from 31.12.1985. However, in the seniority list of Additional Legal Advisers published by order, dated 2.12.1993 (Annexure-13) the applicant was shown at serial No. 19 while Shri N. Krishnamurthy was shown at serial No. 5 though in fact Shri Krishnamurthy was junior to the applicant. However, the representation dated 10.12.1993 of the applicant is still pending with the respondents. The applicant alleges that it was because Dr. V.K. Aggarwal was part of the review DPC that the applicant was no given promotion as Additional Legal Adviser as per his correct seniority of Deputy Legal Adviser. This anomaly continued when the respondents constituted a review DPC for applicant’s case for promotion as Legal Adviser-cum-Joint Secretary and approved his promotion vide notification dated 11.3.1994 (Annexure-16) with effect from 12.10.1989. His seniority in that Grade-I was also as at serial No. 15 while that of Shri N. Krishnamurthy was shown at serial No. 3.
4. In short the grievance of the applicant devolves upon the correct fixation of his seniority as Assistant Legal Adviser, Deputy Legal Adviser, Additional Legal Adviser; and Legal Adviser-cum-Joint Secretary. It has also been stated before us during hearing of the case that the applicant was also further considered and promoted as Additional Secretary in the Ministry of Law. However, the applicant’s case is that he should also have been considered for the post of Law Secretary as his juniors Shri R.L. Meena as well as Dr. S.C. Jain have been both considered and since appointed in the rank of Secretary.
5. The claim of the applicant has been contested by the respondents including respondent No. 9 Dr. S.C. Jain who has filed a reply. Shri R.L. Meena, respondent No. 7 however, has not filed any reply.
6. We have heard the Counsel. The whole edifice of the case of the applicant is based on two corner stones. The first one concerns his seniority as Assistant Legal Adviser and the second relates to his position in the seniority of Deputy Legal Adviser and above vis-a-vis that of Shri N. Krishnamurthy.
7. We may first take up the grievance of the applicant in regard to his seniority as Assistant Legal Adviser. The case of the applicant is that as per the roster point the vacancy for Assistant Legal Adviser in the reserved quota became available in 1974. This vacancy was advertised in 1975 along with two other vacancies for general categories. However, no suitable scheduled caste candidate having been found the vacancy was carried over to 1976. Dr. V.K. Aggarwal and Dr. S.C. Jain, however, came to be appointed in the general vacancies of 1975. As per the rules then in existence the applicant claims that he was entitled to his seniority above Dr. V.K. Aggarwal and Dr. S.C. Jain. We find that this was done by an order dated 13.11.1992 (Annexure-5) after the review DPC confirmed the appointment of the applicant as Assistant Legal Adviser with effect from 1.9.1978. In the seniority list enclosed to that order the applicant was shown at serial No. 2 while Dr. V.K. Aggarwal was shown at serial No. 13. We find, however, that the subsequent retrospective promotion of the applicant as Deputy Legal Adviser did not protect the inter se seniority position of the applicant. In the seniority list enclosed with the Order No. 64 dated 17.5.1993 (Annexure-7) the applicant was shown at serial No. 11 while Dr. V.K. Aggarwal at serial No. 4 and Shri R.L. Meena at serial No. 8. We find that this change came about because unlike the applicant who was appointed as Deputy Legal Adviser under the promotion quota Dr. V.K. Aggarwal and Shri R.L. Meena came to be appointed to that
position under the direct recruitment quota through the UPSC. Dr. V.K. Aggarwal’s appointment in the grade of Deputy Legal Adviser was 31.3.1978 while that of Shri R.L. Meena was 8.8.1980. Due to rotation of vacancies between direct recruits and promotees the applicant was placed below Dr. (Kum) A. Vedavalli, who was appointed as a direct recruit on 26.12.1979 while Shri R.L. Meena came against reserved post for ST at serial No. 8. It is thus clear that the applicant’s contention that he was entitled to seniority above Dr. V.K. Aggarwal and Shri R.L. Meena is not tenable as Dr. V.K. Aggarwal and Shri R.L. Meena became senior to the applicant as Deputy Legal Adviser having Joined that grade as direct recruits unlike the applicant who came through the promotion route. We find that as per the subsequent seniority list of the Central Legal Service Dr. S.C. Jain who was promoted with effect from 1.2.1981 as Deputy Legal Adviser came to be promoted as Additional Legal Adviser on 10.7.1984 as a direct recruit, Thus, Dr. S.C. Jain also became senior to the applicant as Additional Legal Adviser Grade-II of the Indian Legal Service because of his earlier appointment through the method of direct recruitment while the applicant herein came against the promotion vacancy available in 1985. On this reading, therefore, the applicant can claim neither seniority over Dr. V.K. Aggarwal, Shri R.L. Meena or Dr. S.C. Jain but also cannot establish any impropriety in the conduct of the DPCs on account of the participation of Dr. V.K. Aggarwal and Dr. S.C. Jain since for the respective DPCs these two respondents had already become senior to the applicant.
8. We now turn to the other ground taken by the applicant. It is the case of the applicant that though Sh. B.N. Krishnamurthy was promoted as Assistant Legal Adviser on a date earlier to the applicant, the applicant was confirmed in service prior to Shri N. Krishnamurthy. Consequently, in terms of the rules then in existence, the applicant became senior to Shri N. Krishnamurthy as Assistant Legal Adviser. Once this seniority over Shri N. Krishnamurthy was established, the applicant in the subsequent review DPCs was to be considered for promotion to the post of Deputy Legal Adviser with reference to the date of promotion of Shri N. Krishnamurthy as Shri Krishnamurthy was throughout a promotee to each grade and was never taken on direct recruitment basis by which it could be said that he had jumped the queue. Having become senior to Shri N. Krishnamurthy the applicant was thereby entitled also to prior consideration over all other who were deemed junior to Shri N. Krishnamurthy.
9. We have carefully considered this aspect. It appears that Shri N. Krishnamurthy was promoted to officiate as Assistant Legal Adviser in 1970 while the applicant was appointed as a direct recruit in 1976. The case filed by the applicant before the Delhi High Court which came to the Tribunal as TA 814/85 was in respect of his confirmation as Assistant Legal Adviser. By an order dated 13.11.1992, consequent upon the substantive appointment of the applicant, a seniority list was issued in which the applicant was shown senior to Shri N. Krishnamurthy. We find, however, from the order dated 17.5.1993 (Annexure-7) that the applicant after his confirmation with retrospective effect became senior to Shri N. Krishnamurthy as per the seniority list of Indian Legal Service (Annexure- ). Shri N. Krishnamurthy was confirmed in service as an Assistant Legal Adviser with effect from 18.4.1979. He was, however, promoted as Deputy Legal Adviser with effect from 12.8.1975 and again as an Additional Adviser with effect from 27.6.1983.
10. The record obtained from the Ministry of Law F. No. A-32012/1/92 Adm-I (LA) shows that Shri N. Krishnamurthy had been promoted as a Deputy Legal Adviser
on 12.8.1975. At that point of time the applicant was not even in service and, therefore, there was no question of his consideration for promotion as Deputy Legal Adviser on the basis that Shri N. Krishnamurlhy was junior to him as Assistant Legal Adviser. As per Rule 8(1) (iii) of Indian Legal Service Rules the applicant was not eligible for promotion to a duty post in Grade-Ill i.e. Deputy Legal Adviser unless he had held duty post i.e. Assistant Legal Adviser for a total period of not less than three years. He could, therefore, become entitled for consideration for promotion only on 1.9.1979. It was for this reason that even after the issue of the order No. 64 dated 17.5.1993 the applicant was shown junior to Shri N. Krishnamurthy since Shri N. Krishnamurthy had been promoted as regular Deputy Legal Adviser on 12.8.1975. For these reasons the claim of the applicant that he had to be considered for promotion as Deputy Legal Adviser from the same date as Shri N. Krishnamurthy and on that basis for further promotions is totally untenable.
11. In the result, we find that the claim of the applicant for promotion from an earlier date has no merit. His allegation that the findings of the review DPC’s were vitiated because of the participation of officers who were likely to be his junior is also not tenable as we have already found that those officers had been directly promoted to the higher posts. Therefore, the first part of the reliefs sought for by him cannot be granted.
12. The second grievance of the applicant in the OAs is that the respondents have deprived him of the arrears due to him on the basis of his revised dates of promotion. The reply of the respondents is that the applicant has been paid whatever was due to him in terms of the Court order. According to the respondents the Tribunal in its order in TA 814/85 while directing that the applicant’s promotion be reconsidered by a review DPC, had not given any directions for payment of arrears or any other consequential benefits; therefore, the respondents were not obliged to make any payments of arrears to the applicant. However, as pointed out by the learned Counsel for the applicant in CCP No. 308/92 filed by the applicant for compliance of the Tribunal’s order in TA 814/85 an undertaking on the part of the respondents was recorded that the applicant will be paid the arrears due to him and on that basis the contempt proceedings were dropped by the Tribunal. The brief order of the Tribunal in CCP 308/92 in TA 814/85 is reproduced in its entirety:
“Learned Counsel for the respondents Shri M. Chandrasekharan invited our attention to the latest order made on 11.3.1994 by which the petitioner has been appointed as Joint Secretary and Legal Adviser (Grade-I of Indian Legal Service) nationally in the same department with effect from 12.10.1989. The petitioner who argued his case in person, submitted that use of the expression ‘nationally’ in the order dated 11.3.1994 would deprive him of the benefit of the arrears of pay. Learned counsel for the respondents submitted that the respondents would on the basis of notional date of promotion give him the benefit of appropriate fixation of pay as also the arrears due to him on that basis, within a reasonable time and that the petitioner need not have any apprehension in this behalf. Recording the said statement of the learned Counsel for respondents, these proceedings are dropped.”
(Emphasis supplied)
We are unable to agree with the contention of the respondents mat the aforesaid undertaking given before the Tribunal related to arrears as due in law and that as per the interpretation of law by the respondents the applicant was entitled to only notional fixation of pay. As we read the undertaking given before the Tribunal the respondents had agreed
to pay the arrears after notional fixation of pay. The plain reading of this undertaking recorded by the Tribunal means that the arrears to be paid would be the difference of what was actually paid and what was due to the applicant on the basis of refixation of pay. Since the undertaking was in the context of the order of the Tribunal in TA 814/85 the undertaking to make payment of arrears has to be read in respect of total period beginning with the refixation of the pay of the applicant as a Deputy Legal Adviser with effect from 25.2.1980.
13. Even otherwise we have been given no satisfactory explanation as to how the respondents have determined the payment of arrears for certain periods only. Thus in order No. 69 dated 23.6.94 though the pay of the applicant as Deputy Legal Adviser has been fixed notionally from 25.2.1980 onwards, it has been stated that he is entitled to receive the arrears only for the period from 13.7.1983 to 31.12.1985. Similarly, in the grade of Additional Legal Adviser the applicant’s pay has been notionally fixed from 31.12.1985 but the entitlement of arrears has been fixed from 27.6.1988 to 11.10.1989. Similarly, though the pay of the applicant has been notionally fixed as Joint Secretary & Legal Adviser with effect from 12.10.1989, the arrears have been allowed only from 11.6.1993. The only basis that can we discern is that the applicant has been given the benefit of arrears in the lower post only from the date that he was given notional promotion to the next higher grade. Since the applicant during that period worked neither in the lower post nor in the higher post, the rationale of applying this basis, if indeed that was the basis, escapes us altogether.
14. In view of the above position we find that the applicant is entitled in terms of the undertaking given by the respondents in CCP No. 308/92 to payment of all the arrears of pay from the beginning.
15. The applicant has also sought the release of these arrears with 18% interest. In the facts and circumstances of the case we allow the payment of interest at the rate of 12% from the date the present OA No. 2221/94 was filed i.e. on 1.11.1994 till the date of actual payment.
16. In the result, the OAs are partly allowed. While the claim of the applicant for promotion form earlier dates is rejected, the respondents are directed to pay the arrears of salary arising out of the difference in notional fixation of pay and the actual payments made to the applicant along with 12% interest from 1.11.1994 upto the date of actual payment. This will be done within a period of four months from the date of receipt of a copy of this order. No. order as to costs.
