P.C. Rajalakshmi v Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 05TH DAY OF FEBRUARY 2020 / 16TH MAGHA, 1941** **OP (CAT).No.68 OF 2019** **THE ORDER IN OA 36/2015 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** ## **PETITIONER/S:** **P.C.RAJALAKSHMI AGED 67 YEARS W/O. P.V.RAGHAVAN, ADMINISTRATIVE OFFICER(RETD) CENTRAL EXCISE, RAGAM, HOUSE NO.1-4104, GURUKAL ROAD, EAST HILL, WEST HILL P.O, KOZHIKODE-695005.** **BY ADVS. SRI.C.S.GOPALAKRISHNAN NAIR SMT.PRASEEDHA T.** ## **RESPONDENT/S:** - **1 UNION OF INDIA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI110001.** - **2 CHAIRMAN, CENTRAL BOARD OF EXCISE AND CUSTOMS, NORTH BLOCK, NEW DELHI-110001.** - **3 CHIEF COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS, CENTRAL REVENUE BUILDINGS, I.S. PRESS ROAD, COCHIN-682018.** - **4 COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS, CENTRAL REVENUE BUILDINGS, I.S PRESS ROAD,** 2 ## O.P.(CAT) 68 of 2019 ## **COCHIN - 682018.** - **5 COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS, CENTRAL REVENUE BUILDINGS, MANACHIRA, KOZHIKODE-673001.** - **6 SECRETARY, UNION PUBLIC SERVICE COMMISSION, DHOLPUR HOUSE, NEW DELHI-110069.** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 05.02.2020,** **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(CAT) 68 of 2019 3 ## **JUDGMENT** ## **V.G.ARUN, J.** The petitioner, while working as Administrative Officer in the Central Excise and Customs Department, retired from service on 31.12.2010. She had 14 years of service as Administrative Officer at the time of her retirement and was eligible for promotion as Chief Accounts Officer. In spite of her eligibility, the petitioner was not promoted, since the Departmental Promotion Committee (DPC) for the years 2007-08, 2008-09 and 2009-10 was not convened while she was in service. Though the DPC met on 22.06.2013 and found the petitioner to be eligible for promotion during the year 2009-2010, she was not granted the promotion, since she had already retired from service. The petitioner contends that the delay in convening the DPC cannot be a reason for denying her O.P.(CAT) 68 of 2019 4 eligible promotion and in any event, she should have been notionally promoted to the post of Chief Accounts Officer from the date from which she was found fit for promotion and granted consequential benefits including arrears of pay and allowances from that date. 2. The respondents opposed the prayer and contended that, having retired from service the petitioner is not entitled to be promoted, either on a regular basis or even notionally. Reliance was placed on the decision in _**State of**_ _**Uttaranchal and another v. Dinesh Kumar Sharma [(2007) 1 SCC 683]**_ to contend that unless a selection is made in accordance with the rules, there can be no automatic promotion or appointment to any post. 3. The Tribunal accepted the contention of the respondents and dismissed the original application based on O.P.(CAT) 68 of 2019 5 the decision in _**Dinesh Kumar Sharma** ._ The Tribunal further found that even though the petitioner had retired from service as early as in the year 2011, the original application was filed four years later. It was therefore held that the claim of the petitioner is highly belated and has become stale. Aggrieved by the findings of the Tribunal, this original petition is filed seeking the following reliefs:- “i. Issue appropriate order or direction calling for the records leading up to the issue of Exhibit P7 order and quash the same. ii. Issue appropriate direction or order directing the respondents to promote the petitioner with effect from 1.4.2009 to the post of Chief Accounts Officer within a time frame with all consequential benefits including arrears of pay and allowances from the date of notional promotion. Iii. Issue appropriate direction or order directing the respondents to promote the petitioner notionally to the post of Chief Accounts Officers from the dates she was found fit for the vacancies existed at the relevant period within a time frame and grant all consequential benefits including arrears of pay and allowances from the date of notional promotion.” 4. Heard the learned counsel for the petitioner and the learned Assistant Solicitor General. O.P.(CAT) 68 of 2019 6 5. With respect to the finding of delay in filing the original application, it has to be noticed that though the petitioner retired from service on 31.12.2010, the DPC for the years 2007-08, 2008-09 and 2009-10 was held only on 22.06.2013 and therefore, the petitioner could not have agitated the issue till the DPC found her eligible for promotion. Further, Annexure A13 representation seeking notional promotion on the basis of the DPC recommendation was submitted on 7.8.2013 and the original application was filed on 8.1.2015, within the time prescribed under Section 22 of the Administrative Tribunal's Act, 1985. The cause of action for the petitioner arose on her representation seeking notional promotion was kept pending without consideration for more than one year. From the date of expiry of one year period, the petitioner had six more months to file the original O.P.(CAT) 68 of 2019 7 application. 6. The Tribunal had relied on the judgment in _**Dinesh Kumar Sharma**_ to reject the claim of the petitioner. On a reading of the judgment in _**Dinesh Kumar Sharma,**_ it is seen that the dispute therein was with regard to grant of seniority from the date of substantive appointment. The claim of Dinesh Kumar Sharma was for reckoning his seniority from the date of occurrence of vacancy. The Apex Court held that the right to constitute selection committee is vested in the Government, which, after adopting due procedure for selection, effects substantive appointments to a promotion post and therefore, the appointee would have no right to claim promotion and seniority from the date when the vacancy arose and that the seniority could be reckoned only from the date of substantive appointment. The facts in _**Dinesh Kumar**_ O.P.(CAT) 68 of 2019 8 _**Sharma**_ being entirely different from the facts in the instant case, no reliance could be placed on that decision to repel the petitioner's claim for notional promotion. As far as the petitioner's case is concerned, it is to be noted that, under Annexure A5 Office Memorandum, a model calender was framed for conduct of DPCs so as to avoid situations like the one faced by the petitioner. As per Annexure A16, nonadherence to the time frame prescribed in the model calender was to be treated as a serious lapse. In spite of the model calender and the Circular instructions the DPC was not convened on time, for which lapse of the respondents, the petitioner cannot be made to suffer. As held by the Honourable Supreme Court in _**Union of India v. Sadhana Khanna [(2008) 1 SCC 720]**_ , a mistake on the part of the Department cannot recoil on the employees. It is true that the O.P.(CAT) 68 of 2019 9 petitioner cannot be promoted after her retirement, but the DPC having subsequently found the petitioner eligible for promotion during 2009-2010, the benefits that would have accrued, had the promotion been granted on time, cannot completely be denied to the petitioner for reason of her retirement. 7. The entitlement of similarly situated persons, whose claim for notional promotion stood, rejected as per the common order in O.A.No.207 of 2016, was elaborately considered by a Division Bench of this Court in O.P.(CAT) No.24 of 2019. The Division Bench found the petitioners therein to have been denied actual promotion solely due to the delay in the matter of convening of DPC at the appropriate time. Finding that the DPC, which considered the claim of the petitioners had recommended their names for promotion O.P.(CAT) 68 of 2019 10 during the period they were actually in service, it was held that the petitioners are entitled to get notional promotion based on the finding of the DPC and based on their inclusion in the select list. Accordingly, the Division Bench set aside the order of the Tribunal and directed the respondents to issue appropriate orders granting notional promotion to the petitioners 1 to 3 therein, (the claim of the 4[th] petitioner was denied for reason of her voluntary retirement) and it was directed to refix their pension and pensionary benefits after fixing their pay in the promotional post. We are in agreement with the findings of the Division Bench in O.P (CAT) No. 24 of 2019. For the reasons above mentioned, the original petition is allowed. The respondents are directed to notionally promote the petitioner as Chief Accounts Officer based on her O.P.(CAT) 68 of 2019 11 eligibility as found by the DPC held on 22.06.2013 and consequential inclusion in the select list. It is declared that the petitioner would be entitled for revised pension based on refixation of her pay in the post of Chief Accounts Officer, to which she is notionally promoted. The monetary benefits arising from the re-fixation of pay with respect to revision of pension alone shall be disbursed to the petitioner within an outer limit of three months from the date of receipt of a copy of this judgment. Parties shall suffer their respective costs. **Sd/K.VINOD CHANDRAN JUDGE** **Sd/-** **V.G.ARUN** **JUDGE** Scl/05.02 O.P.(CAT) 68 of 2019 12 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **PHOTOCOPY OF ORIGINAL APPLICATION NO.36/2015** **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS.** **EXHIBIT P3 TRUE COPY OF THE REJOINDER FILED BY THE PETITIONER.** **EXHIBIT P4 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE RESPONDENT.** **EXHIBIT P5 TRUE COPY OF THE ADDITIONAL REJOINDER FILED BY THE PETITIONER.** **EXHIBIT P6 TRUE COPY OF THE 2ND ADDITIONAL REPLY STATEMENT FILED BY THE RESPONDENTS.** **EXHIBIT P7 TRUE COPY OF THE ORDER DATED 22.11.2018 IN OA NO.36/2015.**