Thursday, December 1, 2022

Right to promotion different for different set of rules: Supreme Court

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The Supreme Court has observed that right to promotion and subsequent benefits and seniority would arise only with respect to the rules governing the said promotion, and not a different set of rules which might apply to a promoted post facilitating further promotion, which is governed by a different set of rules.

The Division Bench of Justice Sanjay Kishan Kaul and Justice M.M. Sundresh observed that amere existence of vacancy per se will not create a right in favour of an employee for retrospective promotion when the vacancies in the promotional post is specifically prescribed under the rules, which also mandate the clearance through a selection process.

The appeals are filed by the respondents before the High Court and the Central Administrative Tribunal, raising a challenge on two grounds, namely: –

i. A voluntary retiree cannot seek promotion as a matter of right sans rules governing.

ii. A mere delay in consideration of the promotion would not create a vested right over a post that quantifies the maximum accommodation in terms of numbers, involving a process of suitability.

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Both the respondents worked with the appellant (Union of India) holding the post of Junior Administrative Grade-II (JAG-II) officers. First Respondent retired in the said capacity voluntarily in the year 2010. Second Respondent was promoted on ad hoc basis to Junior Administrative Grade-I (JAG-I) vide order dated 27.12.2011 and regularized vide notification dated 17.04.2012 with effect from 01.07.2011, after undergoing a selection process against the vacancies in tune with Rule 4 of the National Capital Territory of Delhi, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli (Civil Service) Rules, 2003 which prescribes 10% as the maximum in the cadre of JAG-I of the total sanctioned strength of the posts in the service. The 2003 Rules were amended vide Notification dated 01.10.2009, and the sanctioned strength was increased to 472.

The respondents filed separate applications before the Central Administrative Tribunal (CAT). Despite holding that the post of JAG-I is neither wholly promotional nor an upgradation, the applications were dismissed on the premise that a conjoint reading of Rule 4 and 7 of the 2003 Rules would disentitle the relief being granted.

The respondents filed petitions assailing the decision of the CAT, which were allowed inter alia holding that First Respondent is entitled to relief in terms of the Circular No.AB.14017/47/2011-EST (DR) dated 01.08.2012 issued by the Department of Personnel and Training (DoPT), which facilitates a retired officer who is otherwise eligible as on the due date to be considered for the benefit of “pay-upgradation”. In the case of the Second Respondent the High Court reasoned that after keeping the officer without consideration for promotion for a long time, with the decision to grant promotion with effect from 01.07.2011, there is no justification for denying it from 01.10.2009. Thus, both the writ petitions found favour with the High Court. Assailing the aforesaid orders, the appellants approached the Supreme Court.

The Top Court noted that Rule 7 of the 2003 Rules specifies that the vacancies arising in JAG-I shall only be filled by promotion from amongst the officers in the immediate respective lower grade with the minimum qualifying service as specified in Schedule III. Schedule III clearly states that JAG-I is the promotional post with JAG-II as the feeder cadre post, subject to the other prescribed qualifications.

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As there is no ambiguity in the aforesaid rules, the Apex Court is not able to approve the views of the CAT and the High Court that JAG-I is a mere upgradation of JAGII. Differential pay scale along with a process of selection qua suitability fixing eligibility criteria are the factors to determine whether a particular post is the same as the other or a promotional one. The Court feels that such an exercise is not required since the rules themselves are specific. When the rules are specific and clear, there is no need for interpretation which may lead to a case of judicial legislation.The Bench is also in agreement with the submission of the counsel for the appellant that the reasoning of the CAT, though not challenged is unsustainable, since there is no occasion to challenge it with the dismissal of the applications filed.

On facts, the Top Court found that promotions could be given for the reason that the migration of the then incumbent in the post of JAG-I, despite being in the select list to the cadre of IAS, did not take place and thus, they were working in the said post till the date of notification paving way. The factual position not disputed, the rigor of Rule 4 would certainly come into play. The Bench did not find the provision to Rule 4 helping the case of the respondents. The post of JAG-I is certainly a promotional post from the feeder cadre of the JAG-II.

It is trite law that once an officer retires voluntarily, there is cessation of jural relationship resorting to a “golden handshake” between the employer and employee. Such a former employee cannot seek to agitate his past, as well as future rights, if any, sans the prescription of rules. This would include the enhanced pay scale. The First Respondent was rightly not considered in the DPC in 2012 since he was no longer in service at the relevant point of time. The High Court has committed an error in relying upon a circular, which has got no application at all, particularly in the light of our finding that we are dealing with a case of promotion simpliciter as against upgradation of any nature, the Bench held.

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On fact, there is no dispute that the Second Respondent was given promotion after the successful consideration by the DPC. On such clearance the appellant has rightly fixed the promotion with the year of actual vacancy, as per rules. Thus, the Respondent neither on facts nor on law can claim retrospective promotion, and that too from the year 2009 being the year in which he was placed in the select list against a notional vacancy, especially when the then existing vacancy accrued only in the year 2011, when the JAG-I officers were actually inducted into IAS, against which he was promoted. As such, the promotion cannot be granted retrospectively and extended to give benefit and seniority from the date of notional vacancy, causing violence to Rule 4 and 7 of the 2003 Rules, the Bench further held.

In the present case the Court observed that the authority acting within the rules has rightly granted promotion after clearance of DPC on 17.04.2012 with effect from 01.07.2011, when the actual vacancies arose, which in any case is a benefit granted to the Second Respondent . In view of the Court , this exercise of power by the authority of granting retrospective promotion with effect from the date on which actual vacancies arose is based on objective considerations and a valid classification.

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