UOI and Anr v. Ms Tewari and Ors

SANJIV KHANNA, J. ks/dk

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Reserved on : 17th August, 2011 Date of decision : 5th September, 2011 + W.P.(C) 2890/2011 UNION OF INDIA AND ANR. ..... Petitioners Through: Mr.Anuj Aggarwal with Mr.Gaurav Khanna, Advs. versus MR. M.S. TEWARI AND ORS. ..... Respondents Through: Mr.Ankur Chhibber, Adv. for Resp. 1 & 2 Mr.Naresh Kaushik, Adv. for R-3/UPSC CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA 1. Whether reporters of the local papers be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes DIPAK MISRA, CJ Invoking the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, the petitioners have called in question the legal defensibility of the order dated 2nd December, 2010 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (for short "the tribunal") in OA No. 2480/2009 whereby the tribunal has acceded to the prayer made by the respondents No.1 and 2, the applicants before it, by directing the Union of India and its functionaries to accord actual promotion by giving effect to the finding of the Departmental Promotion Committee (DPC) conducted in association with the Union Public Service Commission (for short "the Commission") and further to extend the consequential benefits of promotion and revised pensionary benefits along with arrears within a period of three months. 2. Shorn of unnecessary details, the facts which are essential to be stated are that the respondent No.1 got promotion to the rank of Assistant Director, Grade- II and superannuated on 30th April, 2005. The respondent No.2 was promoted to the said rank and retired on 31st January, 2005. The names of 20 eligible candidates were forwarded to the DPC for consideration against the vacancies arising in 17 posts and the names of the two respondents were included in the said list. The DPC could only be held on 27th December, 2005 and by that time the respondents No.1 and 2 along with five others had attained the age of superannuation and, therefore, their cases could not be considered for promotion. 3. Being grieved by the aforesaid action of the employer, the respondents knocked at the doors of the tribunal. The tribunal placing reliance on the decisions in Gopi Chand Vishnoi v. State of U.P. & Anr., (2006) 9 SCC 694 and Union of India & Anr. v. Hemraj Singh Chauhan & Ors., 2010 (3) SCALE 272 expressed the view that if a promotion is denied in an erroneous manner to a government servant who retires on superannuation, the said benefit has to be extended with retrospective effect. The tribunal also expressed the view that the DPC has to be held at regular intervals but when the same is not done, the employee should not suffer. Being of this view, the tribunal opined that the employer has not acted in a fair and legal manner and issued the directions as has been stated hereinabove. 4. It is averred in the petition that the respondents No.1 and 2 were promoted to the higher grade, that is, the post of Assistant Director (Grade-II) prior to the date of retirement and the next promotional post is Assistant Director (Grade-I). It is contended that the delay in holding the DPC was due to certain bona fide reasons and that ADS (Grade-I) is the entry grade of the Indian Supply Services and the last DPC for promotion to the said grade was held in 1992. No DPC could be held till 27th December, 2005 due to Cadre Review and re-structuring of the cadre. After the cadre review took place, the sanctioned strength in the grade of ADS (Grade-I) was reduced from 50 to 37 and after the cadre review, the Indian Supply Services Grade Service (Group-A) Rules, 1994 (for short "the 1994 Rules") were notified on 9th September, 1994. In 1995 against the sanctioned strength of 37, the working strength was 50. The vacancies arose subsequently in the grade of ADS (Grade-I) and they were first adjusted against such review stren