OP (CAT) No.3 of 2016 (Z)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 13TH DAY OF JANUARY 2016/23RD POUSHA, 1937** **OP (CAT).No. 3 of 2016 (Z) ---------------------------** **AGAINST THE ORDER IN OA 1128/2012 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 06-08-2015** **PETITIONERS: -----------** **1. CENTRAL PLANTATION CROPS RESEARCH INSTITUTE REPRESENTED BY ITS DIRECTOR, CPCRI, KASARGOD-671124.** **2. CHIEF ADMINISTRATIVE OFFICER CENTRAL PLANTATION CROPS RESEARCH INSTITUTE KASARGOD-671124.** **3. DIRECTOR GENERAL INDIAN COUNCIL OF AGRICULTURAL RESEARCH KRISHI BHAVAN, NEW DELHI-110114.** **4. SECRETARY INDIAN COUNCIL OF AGRICULTURAL RESEARCH KRISHI BHAVAN, NEW DELHI-110114.** **BY ADVS.SRI.P.JACOB VARGHESE (SR.) SRI.VIVEK VARGHESE P.J. SRI.VARUGHESE M EASO** **RESPONDENT:** **-----------** **MR.P.K.KRISHNAN KUTTY S/O.P.K.KANDAI, T2, JTA CENTRAL PLANTATION CROPS RESEARCH INSTITUTE-CPCRI-HEAD OFFICE KASARAGOD, RESIDING PERMANENTLY AT PADOOR HOUSE MANAKODY P.O., THRISSUR-680017.** **R1 BY ADV. SRI.M.R.HARIRAJ R1 BY ADV. SRI.P.A.KUMARAN R1 BY ADV. SMT.VINEETHA B. R1 BY ADV. SRI.K.RAJAGOPAL** **THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 13-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP (CAT).No. 3 of 2016 (Z) ---------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **---------------------** **EXHIBIT-P1: TRUE COPY OF THE OA NO.1128/2012 OF CAT, ERNAKULAM BENCH DT.27/11/2012.** **EXHIBIT-P2: TRUE COPY OF REPLY STATEMENT DATED 6/8/13 IN O.A.NO.1128/12.** **EXHIBIT-P3: TRUE COPY OF REJOINDER DATED 30/10/13 IN OA NO.1128/12.** **EXHIBIT-P4: TRUE COPY OF THE REPLY TO REJOINDER IN OA 1128/2012 DATED 2/1/2014.** **EXHIBIT-P5: CERTIFIED COPY OF ORDER DATED 06/08/2015 IN OA.NO.1128/2012 OF THE CAT,ERNAKULAM BENCH.** ## **RESPONDENT'S EXHIBITS: NIL** **---------------------** **/TRUE COPY/** **P.S. TO JUDGE** **cl** ## **P.N. RAVINDRAN & K. RAMAKRISHNAN, JJ.** .................................................. O.P.(CAT) No.3 of 2016 ....................................................... Dated this the 13[th] day of January, 2016. ## **JUDGMENT** ## **Ravindran, J:** Ext.P5 order passed by the Central Administrative Tribunal, Ernakulam Bench on 06.08.2015 in OA.No.1128 of 2012 is under challenge in this original petition filed under Article 227 of the Constitution of India. The brief facts of the case are as follows: 2. The respondent herein entered service as Lab Attender Grade-I, in the Indian Council of Agricultural Research (ICAR) on 27.08.1986. He and his juniors were considered for promotion to the post of T-1 (JTA) [Junior Technical Assistant] by the Departmental Promotion Committee that met on 25.10.1999. The Departmental Promotion Committee (DPC for short) did not recommend the respondent's name for promotion. The DPC, however recommended that promotion be given to four of his juniors namely, Sri.A.Sanjeeva, Sri.K.Raghavan, Sri.M.V.Sreedharan and Sri.V.P.John. Based on the recommendations of the DPC, the aforesaid four persons were promoted to the post of T-1 (JTA) by order passed on 23.12.1999. The respondent challenged his supersession and the order promoting his juniors by filing O.A.No.309 of 2000 on the file of the Central O.P.(CAT) No.3 of 2016 2 Administrative Tribunal, Ernakulam Bench. After considering the rival contentions, the Central Administrative Tribunal held that the procedure adopted by the DPC that met on 25.10.1999 was defective. The Central Administrative Tribunal accordingly allowed O.A.No.309 of 2000 by order passed on 27.03.2002, set aside the promotions effected by order passed on 23.12.1999 and directed the official respondents before the Tribunal to constitute a review DPC to consider the candidates afresh. 3. Pursuant to the order passed by the Central Administrative Tribunal, Ernakulam Bench on 27.03.2002 in O.A.No.309 of 2000, a review DPC was held on 19.09.2002. The bench mark prescribed for selection as per the then prevailing instructions was an entry in the confidential records to the effect that the conduct and performance of the employee is ‘good’. It appears that, at the relevant time there was no such practice of grading the employees. The review DPC thereupon made its own evaluation on the basis of entries in the confidential records under the following heads, namely- “1. Intelligence, 2. Amenability to discipline, 3. Honesty/Integrity 3 O.P.(CAT) No.3 of 2016 4. Punctuality and 5. Devotion to duty” 4. The review DPC also evaluated the performance of the candidates with reference to their annual confidential reports for the period from 1994-95 to 1998-99. The review DPC did not recommend the name of the respondent for promotion, on the ground that he did not possess the required bench mark ‘good’ for the period from 199495 to 1998-99. The committee, however, recommended the names of his juniors, namely, Sri.A.Sanjeeva, Sri.K.Raghavan, Sri.M.V.Sreedharan and Sri.V.P.John. Based on the recommendations of the review DPC, the aforesaid four persons were promoted to the post of T-1 (JTA) by order passed on 27.09.2002. Based on the recommendations of the DPC which met on 16.11.2002, yet another junior of the respondent namely Sri. Pandurenge, was also promoted by order passed on 6.02.2003. 5. The respondent thereupon filed O.A.No.27 of 2003 before the Central Administrative Tribunal, Ernakulam Bench joining besides the official respondents (petitioners 1 to 3 herein), five of his juniors, who were thus promoted. The Central Administrative Tribunal, after considering the rival contentions, allowed O.A.No.27 of 2003 by 4 O.P.(CAT) No.3 of 2016 Annexure-A1 order passed on 28.4.2006. The Central Administrative Tribunal held that the conclusion of the review DPC was based on uncommunicated entries in the confidential records and that, such uncommunicated entries cannot be held out against the respondent. The Central Administrative Tribunal, accordingly quashed the order passed by the official respondents on 27.9.2002 promoting the juniors of the respondent to the post of T-1(JTA). It is relevant in this context to note that during the pendency of O.A.No.27 of 2003, the respondent was in fact promoted to the post of T-1(JTA) by Annexure-A4 order dated 1.3.2005. In that view of the matter, as the the DPC had found that the respondent is fit for promotion, the Central Administrative Tribunal declared that the respondent is entitled to be promoted to the post of T-1(JTA) with effect from 28.12.1999, the date on which his juniors were promoted. He was, however, denied arrears of pay and allowances. The official respondents were directed to issue necessary orders promoting the respondent notionally with effect from 28.12.1999, within two months from the date of receipt of a copy of the order. The official respondents (the petitioners herein) challenged Annexure-A1 order by filing W.P.(C).No.31936 of 2006 in this court. The said writ petition was dismissed by a Division Bench of O.P.(CAT) No.3 of 2016 5 this court by Annexure-A2 judgment delivered on 17.2.2012. Thereupon, the competent authority issued Annexue-A3 order dated 10.5.2012 promoting the respondent to the post of T-1(JTA) in the pay scale of 3200-85-4900 with effect from 28.12.1999, the date on which his juniors were promoted, without arrears of pay and allowances. 6. In the meanwhile, the respondent's juniors who were promoted to the post of T-1(JTA) with effect from 28.12.1999 were promoted to the higher post of T-2 (JTA) by Annexure-A6 order dated 7.10.2005. The respondent was also in fact promoted to the post of T- 2(JTA) with effect from 1.4.2010 as per Annexure-A5 order dated 10.1.2011. In view of Annexure-A1 order passed by the Central Administrative Tribunal, Ernakulam Bench in O.A.No.27 of 2003, which recognized his entitlement to be promoted to the post of T-1(JTA) with effect from 28.12.1999 and Annexure-A3 order dated 10.5.2012 which gave effect to that order, the respondent submitted Annexure-A7 representation dated 6.7.2012 to the competent authority, wherein he requested for promotion to the post of T-2(JTA) with effect from 27.12.2004 and T-1-3 (JTA) with effect from 27.12.2009 as per the pre modified Technical Service Rules. He had in the said representation stated that he had opted to be governed by the pre 6 O.P.(CAT) No.3 of 2016 modified Technical Service Rules. The competent authority after considering the said representation, sent Annexure-A8 memo dated 27.11.2012 informing the respondent as follows: _“Shri.P.K.Krishnankutty T-2(Jr.Tech.Assistant),_ _CPCRI, Kasaragod is hereby informed that pending approval of the Competent Authority in the ICAR, New Delhi for implementation of the judgment dated 17.2.2012 passed by the Hon'ble High Court of Kerala in W.P.(C)No.31939/2006, the above cited office order issued to him provisionally has not yet been confirmed._ _Therefore, his submission refered to at (1) above can be considered only on receipt of a decision from ICAR, New Delhi._ _This issues with the approval of the Director.”_ 7. The substance of the stand taken therein is that Annexure-A3 order dated 10.5.2012 promoting the respondent to the post of T-1 (JTA) with effect from 28.12.1999 has not been confirmed. The respondent thereupon filed O.A.No.1128 of 2012 before the Central Administrative Tribunal, Ernakulam Bench challenging Annexure-A8 memo and seeking the following reliefs: 7 O.P.(CAT) No.3 of 2016 _i. To Quash Annexure-A8._ _ii. To declare that the applicant is entitled to be promoted as T2, JTA and T-1-3, JTA with effect from 27.12.2004 and 27.12.2009 respectively._ _iii. To direct the respondents to consider the applicant for promotion as T2, JTA and T-1-3, JTA with effect from 27-12-2004 and 27.12.2009 respectively and to direct the respondents to grant the said promotions with all consequential benefits including arrears of pay and allowances with interest at the rate of 18% per annum”._ 8. The substance of the contention raised therein is that even without the intervention of the Central Administrative Tribunal, he was found fit to be promoted and promoted to the post of T1(JTA) with effect from 1.3.2005 and T2 (JTA) with effect from 1.4.2010, that in view of Annexure-A1 judgment of the Central Administrative Tribunal in O.A.No.27 of 2003 and its implementation by Annexure-A3 order dated 10.5.2012, he is entitled to be promoted to the post of T1 (JTA) with effect from 28.12.1999 and consequently, he is entitled to be promoted to the post of T2(JTA) with effect from 28.12.2004 and to the next higher post T-1-3 (JTA) with effect from 27.12.2009. 8 O.P.(CAT) No.3 of 2016 9. Upon receipt of notice, the respondents in O.A.No.1128 of 2012 (the petitioners herein) entered appearance and filed a reply statement dated 6.8.2013, wherein they interalia contended as follows: _“8. In reply to the averments in paragraph 4.7-8, it is submitted that as per the career promotion system of Technical personnel, his five years performance in T-1 grade (01/04/2005 to 31/3/2010) was assessed by the duly constituted Assessment Committee. The committee recommended his promotion to T-2 grade with effect from 1.4.2010 which was accepted by the competent authority and order issued vide Annexure A-5._ _9. The contention of the applicant in paragraph 4-9, is out of his misconception of Modified Technical Service Rules (hereinafter referred to as MTSR). Promotion to the next higher grade from T-1 to T-2 is not automatic by mere completion of particular years in a grade. As stated_ 9 O.P.(CAT) No.3 of 2016 _above the assessment case of technical personnel is considered by the Assessment Committee on the basis of the following records:_ _a) The material furnished in the five/ten yearly assessment proforma submitted by the concerned applicant._ _b) Performance record files maintained by the technical personnel._ _c) Bio date and career information of the technical personnel through out in their service in the ICAR._ _d) CCRs for the past 5/10 years as the case may be._ _Though the applicant was notionally promoted with effect from 28.12.1999, he started to perform the duty of the Technical Service with effect from 1.4.2005 only. According to the technical service Rules, the service rendered in other categories will not taken into consideration for Promotion under Assessment System._ 10 O.P.(CAT) No.3 of 2016 _This has later clarified by ICAR vide Memorandum No.15-1/2002-Estt.IV dated 13.2.2002 by disposing the representation of a Driver in technical category to count his service rendered in Auxiliary service in pursuance of the order passed by the Hon'ble Central Administrative Tribunal, Ernakulam bench in OA.No.929/2001 dated 18.10.2001. The true copy of the order dt.18.10.2011 is produced and marked as Annexure R1(b)and ICAR Memo dated 13.2.2002 is produced herewith and marked as Annexure R1 (c). As per the option exercised by the applicant, he is governed under MTSR. As the applicant do not possess the required qualification for T-3 grade for Direct Recruitment, he shall become eligible for assessment promotion to T-3 grade only after 10 years in T-2 grade. Accordingly, the applicant is yet to be completed 10 years service in T-2 grade for consideration for further promotion to T-3 grade._ _10. In reply to the averments in para 4.10, it is submitted that approval from the Competent_ 11 O.P.(CAT) No.3 of 2016 _Authority at ICAR is required for implementing the order passed by the Hon'ble Tribunal in O.A.No.27/2003. While examining the verdict at various level at ICAR the time granted by the Hon'ble Tribunal was exhausted. Hence the respondent issued Annexure A3 order in anticipation of approval from the Competent Authority. The request of the applicant dated 6.7.2012 has not been disposed finally but an interim reply only furnished to him vide Annexure-A8 order._ _11. In reply to the averments in paragraph 4.11, it is respectfully submitted that, pursuant to the judgment dated17.2.2012 of the Hon'ble High Court of Kerala in WP(C)No.31936, the order of the Hon'ble CAT, Ernakulam Bench in O.A.No.27/2003 dated 28.4.2006 was promptly implemented. The direction of the Hon'ble Tribunal was to promote the applicant with effect from his juniors promoted to the post of T-1JTA but he shall not be entitled to arrears of pay and allowances the applicant has_ 12 O.P.(CAT) No.3 of 2016 _been promoted to T-1 JTA with effect from 28.12.1999 notionally. Consequent on his above promotion his basic pay has been enhanced from Rs.3090/- to 3200 plus usual allowances and enjoying all other benefits”._ 10. The stand taken by the petitioners herein before the Central Administrative Tribunal in the said reply statement was that promotion from T-1 to T-2 is not automatic by mere completion of service for a specified period in a grade, but such promotion is made only after an assessment is made by the Assessment Committee based on the records. It was also contended that, though the applicant before the Tribunal (the respondent herein) was notionally promoted to the post of T-1 (JTA) with effect from 28.12.1999, he started performing duty in that post only with effect from 1.4.2005 after he was promoted by Annexure-A4 order dated 1.3.2005 and that service in other categories rendered by him prior to 1.4.2005 cannot be taken into consideration for grade promotion. It was also contended that, as per the option exercised by him, the respondent is governed by the modified Technical Service Rules, that he does not possess the 13 O.P.(CAT) No.3 of 2016 educational qualifications prescribed therein for promotion to T-3 grade and therefore, he will become eligible for assessment promotion to T- 3 grade only after putting in 10 years of service in T-2 grade. In other words, the stand taken by the petitioners is that the respondent will be come eligible for promotion only on completion of ten years of service in T-2 grade. 11. In view of the stand taken by the petitioners herein in their reply statement filed before the Tribunal, the respondent filed a rejoinder dated 10.10.2013 contending that he is governed by the old Technical Service Rules, a copy of which is produced as Annexure-A9. He contended that, as per the said rules, on completion of 5 years of service in the post of T-1(JTA), he is entitled to be promoted to the post of T-2 (JTA) and on completion of 5 years of service in the post of T-2 (JTA), he is entitled to be promoted to T-1-3 (JTA). He also contended that, though the modified Technical Service Rules came into force on 3.2.2000, as he was not in the Technical Service on that date, he had no opportunity to opt, but he had opted to be governed by the pre modified Technical Service Rules when an opportunity in that regard was extended to all employees by Annexure-A11 circular dated 22.1.2007. He had also produced along with the rejoinder, the O.P.(CAT) No.3 of 2016 14 option form submitted by him and the letter sent by the Director of CPCRI as Annexures-A12 and A13. He further contended that the official respondents cannot therefore contend for the position that he should complete 10 years of service in T-2 grade to be promoted to T- 1-3 grade. Though the official respondents in O.A.No.1128 of 2012 filed a reply statement dated 2.1.2014 to the rejoinder filed by the respondent, they did not dispute the fact that pursuant to AnnexureA11 circular, the respondent had submitted an option statement. It was however contended that, as the respondent was not in the Technical Service on 3.2.2000, he could not have relied on AnnexureA7 to submit the option. It was contended that, for that reason, Annexure A-2, the option submitted by him, was not acceded to by the competent authority. 12. The Central Administrative Tribunal considered the rival contentions and allowed O.A.No.1128 of 2012 by Ext.P5 order passed on 6.8.2015. Respondents 1 to 4 in O.A.No.1128 of 2012, have aggrieved thereby, filed this original petition under Article 227 of the Constitution of India. 13. We heard Sri. P. Jacob Varghese, learned senior counsel appearing for the petitioners and Sri.M.R. Hariraj, learned counsel 15 O.P.(CAT) No.3 of 2016 appearing for the respondent. Sri. Jacob Varghese, learned senior counsel appearing for the petitioners contended that, both under the old rules and the amended rules, an employee in T-1 grade should have completed five years of service in that grade to make him eligible to be promoted to the next grade, that in the instant case, the respondent commenced discharging duty in T-1 grade only from 1.4.2005, that after completing the length of service required for promotion to the next higher grade, he was promoted to T-2(JTA), with effect from 1.4.2010, that for further promotion to the post of T- 1-3 (JTA), he should have completed five years of service from 1.4.2010 going by the stipulations in the unamended rules and 10 years of service from 1.4.2010 as per the amended rules and therefore, the Central Administrative Tribunal erred in holding that the respondent is entitled to be promoted to the post of T-2 (JTA) with effect from 27.12.2004 and T-1-3 (JTA) with effect from 27.12.2009. Referring to Annexure-A9 circular, learned senior counsel contended that employees who have completed five years of service in T-1 grade are eligible to be promoted to T-2 grade, that for further promotion, the employee should complete the required length of service of five years, if he is governed by the old Technical Service 16 O.P.(CAT) No.3 of 2016 Rules and ten years, if he is governed by the new rules and therefore, the Central Administrative Tribunal erred in allowing O.A.No.1128 of 2012. 14. Per contra, Sri. M.R. Hariraj, learned counsel appearing for the respondent submitted that with his juniors on the party array, the Central Administrative Tribunal has in Annexure-A1 order held that the respondent is entitled to be promoted to the post of T-1(JTA) with effect from 28.12.1999, that such promotion was also effected, that for the mere fact that even without the intervention of the Tribunal, he had been promoted to the post of T-1(JTA) with effect from 1.4.2005 and to the post of T-2 (JTA) with effect from 1.4.2010 is not a reason to hold that subsequent promotions can be only based on the decisions made prior to the issuance of Annexure-A3 order of promotion, which in turn was issued on the basis of the direction issued by the Central Administrative Tribunal in Annexure-A1 order as affirmed by this court in Annexure-A2 judgment and that the very purpose of Annexure-A1 order as affirmed by this court in AnnexureA2 judgment will be defeated if the stand taken by the petitioners is accepted. Learned counsel contended that it was for no fault of the respondent that he was superseded twice by the DPC, that the DPC O.P.(CAT) No.3 of 2016 17 was fishing for reasons to deny him promotion and it was having regard to the fact that the respondent was found suitable for promotion and was in fact promoted to the post of T-1 (JTA) on 1.3.2005 and T-2 (JTA) on 1.4.2010 that the Central Administrative Tribunal had in Annexure-A1 order declared that he is entitled to be promoted to the post of T-1 (JTA) with effect from 28.12.1999, the date on which his juniors were thus promoted. Learned counsel contended that though promotions from supporting staff to the post of T-1 (JTA) is dependant on the availability of vacancies, further promotions from T-1 grade to T-2 grade and from T-2 grade to T-1-3 grade are not based on vacancies, but are only grade promotions on completion of the required length of service and therefore, none of his juniors will be affected by the impugned order. Learned counsel also placed reliance on the decision of the Apex Court in _**S.**_ ## _**Krishnamurthy v. The General Manager, Southern Railway**_ (1976 (4) SCC 825) to contend for the position that even notional service can be considered as service qualifying for promotion especially when it was wrongly denied to the employee. Learned counsel also placed before us for consideration the decision of a Division Bench of this court in _**K.K.Marakkar v. KPSC**_ (1987 KHC 42) 18 O.P.(CAT) No.3 of 2016 to contend for the position that when the rule does not expressly state that the service should be actual service and does not stipulate that the employee aspiring for promotion should have a particular length of experience, it is not permissible or possible to content that only an employee who has completed five years of actual service in a category will be entitled to be promoted to the next higher grade. 15. We have considered the submissions made at the Bar by learned counsel appearing on either side. We have also gone through the pleadings and the materials on record. It is evident from the materials before us that the respondent was superseded twice in the matter of promotion to the post of T-1 (JTA). On the first occasion, he was superseded by taking into account the confidential reports for a period of five years commencing from 1992-1993 to 1996-1997 when, as a matter of fact, the confidential reports for a period of five years from 1994-1995 to 1998-1999 alone should have been looked into. The Central Administrative Tribunal, which examined the issue in the first instance in O.A.No.309 of 2000, held in the order passed by it on 27.3.2002 that no reason has been stated in the proceedings of the DPC as to why instead of taking the confidential reports for a period of five years ending with 1998-1999, confidential reports for an O.P.(CAT) No.3 of 2016 19 earlier period have been considered. In that view of the matter, the Tribunal held that the proceedings of the DPC is defective and accordingly set aside the entire consequential orders of promotion. Such an order was issued with the juniors of the respondent who were promoted on the party array. 16. The review DPC which met on 19.9.2002 pursuant to the orders passed by the Central Administrative Tribunal again superseded the respondent on the ground that he did not possess the required qualification for the period under consideration namely the period from 1994-1995 to 1998-1999. The Tribunal found on an examination of the materials before it that the Departmental Promotion Committee had come to the conclusion that the respondent does not satisfy the bench mark, relying on uncommunicated adverse entires in the confidential reports. While the challenge to the proceedings of the review DPC was pending consideration before the Central Administrative Tribunal, Ernakulam Bench in O.A.No.27 of 2003, the respondent was promoted by Annexure-A4 order dated 1.3.2005 to the post of T-1(JTA). Taking note of the aforesaid development, the Central Administrative Tribunal held in Annexure-A1 order passed on 28.4.2006 in O.A.No.27 of 2003 that as the respondent has already been promoted, the Tribunal does 20 O.P.(CAT) No.3 of 2016 not deem it appropriate to direct the official respondents before it to constitute another DPC for a fresh consideration and that the Tribunal deems it appropriate to declare that the applicant before it, viz the respondent herein, is entitled to be promoted to the post of T-1 (JTA) with effect from 28.12.1999, the date on which his juniors were promoted and that he will not be entitled for arrears of pay and allowances. Though the said order was challenged by the petitioners herein by filing W.P.(C)No.31936 of 2006 in this court, the said writ petition was dismissed by a Division Bench of this court by Annexure- A2 judgment delivered on 17.2.2012. In the meanwhile, on completion of five years service in the post of T-1 (JTA), he was promoted to the post of T-2(JTA) with effect from 1.4.2010 as per Annexure-A5 order dated 10.1.2011. Shortly thereafter, the competent authority issued Annexure-A3 order dated 10.5.2012 promoting the respondent to the post of T-1 (JTA) with effect from 28.12.1999, the date on which his juniors were promoted, but without arrears of pay and allowances. Annexure-A1 order of the Central Administrative Tribunal and Annexure-A2 judgment of this court have attained finality and have not been challenged by the petitioners or the respondent herein. 21 O.P.(CAT) No.3 of 2016 17. Relying on Annexure-A3 order, which in turn was issued in implementation of Annexure-A1 order passed by the Central Administrative Tribunal, the respondent moved the competent authority seeking promotion to the post of T-2(JTA) with effect from 27.12.2004 and further promotion to the post of T-1-3 (JTA) with effect from 27.12.2009. The request was turned down by AnnexureA8 memo only on the ground that Annexure-A3 order of promotion has not yet been confirmed. When the issue was raised before the Tribunal, the petitioners took the stand that the respondent has not completed the required length of service after being promoted to the post of T-1(JTA), that it was taking into account his actual length of service, he was promoted to the post of T-2 (JTA) with effect from 1.4.2010 and that the mere fact that he was found eligible to be promoted to the post of T-1 (JTA) with effect from 28.12.1999 cannot be of any help to him for the reason that he had not worked in the post of T-1 (JTA) with effect from that date. In other words, the contention of the petitioners is that, notwithstanding the fact that the respondent had succeeded before the Central Administrative Tribunal and the order of the Central Administrative Tribunal in his favour has been implemented by the petitioners by promoting him with effect O.P.(CAT) No.3 of 2016 22 from 28.12.1999 to the post of T-1 (JTA), he will not be entitled to any other benefit other than such promotion. 18. It is evident from the materials before us that it was solely on account of the illegality committed by the Departmental Promotion Committee on two occasions namely the DPC which met on 25.10.1999 and the review DPC which met on 19.9.2002 that the respondent was denied promotion. The review DPC which met on 19.9.2002 pursuant to the direction issued by the Central Administrative Tribunal on 27.3.2002 in O.A.No.309 of 2000 resorted to another method to deny promotion to the respondent. In the meanwhile, after his juniors were promoted, he was found eligible and was promoted to the post of T-1 (JTA) by Annexure-A4 order dated 1.3.2005. He was also further promoted to the post of T-2(JTA) with effect from 1.4.2010. It is evident from the materials before us that the respondent was eligible to be promoted to the higher post. Then the only question is whether merely for the reason that he was prevented by the petitioners themselves from being promoted, the petitioners can contend for the position that since his actual service in the post of T-1(JTA) commenced only on 1.3.2005, he is not eligible to be considered for further promotion earlier than that date. 23 O.P.(CAT) No.3 of 2016 The answer in our opinion lies in the decision of the Apex Court in _**Krishnamurthy's**_ case (supra). The appellant in that case was denied promotion in time by the Railway Administration. The mistake was corrected by the Railways themselves and the appellant before the Supreme Court was promoted as Assistant Yard Master by order dated 10.11.2015. By that time, many of his juniors had been promoted to the higher posts. The Apex Court held that though the clock cannot be put back for all purposes and the appellant cannot be treated as having been notionally appointed as Traffic Inspector with effect from 1.1.1959, if there is a condition for promotion which stipulates a qualifying period of service, such service will be deemed to have commenced on 1.1.1959. The said decision in our opinion squarely applies to the facts of this case. The petitioners cannot in our opinion take advantage of their own wrong and contend for the position that notwithstanding the illegality committed by them and the denial of the right of the respondent and notwithstanding the fact that the respondent had succeeded before the Central Administrative Tribunal in getting a declaration that he is entitled to be promoted to the post of T-1 (JTA) with effect from 28.12.1999, further promotions should be made ignoring the said declaration. It is also relevant in this 24 O.P.(CAT) No.3 of 2016 context to note that promotions from the post of T-1(JTA) to T2(JTA) and T-1-3 (JTA) are not based on the vacancy position. These promotions are grade promotions and therefore, an order promoting the respondent from an earlier date would not cause any prejudice or harm to any one or result in the displacement of any of his juniors. The petitioners have no case that having regard to the annual confidential reports of the respondent, he is not entitled to be promoted from a date earlier than 1.3.2005 to the post of T-1(JTA) or earlier than 1.4.2010 to the post of T-2 (JTA). The Departmental Promotion Committee has after evaluating his confidential reports found him fit for such promotion. We are therefore of the opinion that no interference is called for with the order passed by the Central Administrative Tribunal. 19. There is also yet another reason why we are not persuaded to interfere with the impugned order. The rule does not stipulate that a person aspiring to be promoted from T-1(JTA) to T-2 (JTA) should have five years of experience. In the absence of any stipulation in the rule that an employee aspiring for promotion should have experience qualification or should have rendered actual service in the lower post and that persons notionally promoted from an 25 O.P.(CAT) No.3 of 2016 anterior date either on account of restoration of seniority or direction issued by the court will not be considered for promotion till they complete the prescribed length of service, we are not persuaded to hold that the expression “service” means only actual service in the immediate lower post. It is evident from the impugned judgment that such a contention was not really pressed into service before the Central Administrative Tribunal. We accordingly hold that there is no merit in the original petition. The original petition fails and is accordingly dismissed. No costs. Sd/- ## **P.N. RAVINDRAN, JUDGE.** Sd/- ## **K. RAMAKRISHNAN, JUDGE.** cl O.P.(CAT) No.3 of 2016 26 O.P.(CAT) No.3 of 2016 27