W.P.(C)/3056/2012 of M.A.ANSARI Vs UNION OF INDIA

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Reserved on: April 10, 2013 Judgment Pronounced on: April 17, 2013

+ W.P.(C) 3056/2012

M.A.ANSARI ..... Petitioner Represented by: Mr.T.D.Yadav, Advocate

versus

UNION OF INDIA

..... Respondent

Represented by: Mr.Amrit Pal Singh, CGSC with Ms.Gurjinder Kaur, Advocate

CORAM:

HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE PRATIBHA RANI PRADEEP NANDRAJOG, J.

1.On April 12, 2013, we had decided batch of writ petitions, lead matter being WP(C) No.8102/2012 UOI & Anr. vs.K.L.Taneja & Anr.on the subject as to when can person be granted promotion from

retrospective date. We had noted various decisions of the Supreme Court on the point as under:-

(i) 1987 (4) SCC 566 K.Madhavan & Anr. vs.UOI & Ors.

(ii) 1989 Supp (2) SCC 625 Union of India & Ors. vs. K.K.Vadera &

Ors.

(iii) 1995 (4) SCC 246 Vinod Kumar Sangal vs.UOI& Ors.

(iv) 1998 (7) SCC 44 Baij Nath Sharma vs. Hon’ble Rajasthan High Court At Jodhpur & Anr. Court At Jodhpur & Anr.

(v) AIR 2004 SC 255 P.N Premachandran vs. The State of Kerala &

Ors.

WP(C) No.3056/2012 Page 1 of 4

(vi) AIR 2004 SC 3460 Sanjay K.Sinha & Ors. vs. State of Bihar & Ors.

(vii) 2006 (13) SCALE 246 State of Uttaranchal & Ors. Vs.DineshKr.Sharma

(viii) 2007 (1) SCC 683 State of Uttaranchal & Anr. vs. Dinesh kumar Sharma.

(ix) 2008 (14) SCC 29 Nirmal Chandra Sinha vs. UOI & Ors.

(x) 2010 (4) SCC 290 UOI & Anr. vs. Hemraj Singh Chauhan & Ors.

2.We had held that the cornucopia of case law above noted brings out the position :-

(i) Service Jurisprudence does not recognize retrospective promotion i.e. promotion from back date.

(ii) If there exists rule authorizing the Executive to accord promotion from retrospective date, decision to grant promotion from retrospective date would be valid because of power existing to do so.

(iii) Since mala fides taints any exercise of power or an act done, requiring the person wronged to be placed in the position the person would find himself but for the mala fide and tainted exercise of power or the act, promotion from retrospective date can be granted if delay in promotion is found attributable to mala fide act i.e. deliberately delaying holding DPC, depriving eligible candidates the right to be promoted causing prejudice.

(iv) If due to administrative reasons DPC cannot be held in year and there is no taint of malice, no retrospective promotion can be made.

3. Our reasoning in the decision dated April 12, 2013 be read as part of the present decision.

4. We note the facts.

WP(C) No.3056/2012 Page 2 of 4

5. Petitioner M.A.Ansari joined service as Surveillance Officer on February 24, 1972 and went on to become an Entomologist on September 27, 1982 which post was re-designated in the year 1987 as Assistant Director (Entomology). He was promoted as Deputy Director (Entomology) on February 12, 1996 and retired on August 31, 2008. He had an issue of not being promoted as Deputy Director (Entomology) in the year 1987 as against the year 1996 when he was promoted. As per him three posts of Joint Director (Entomology) had fallen vacant on July 2004, January 2005 and February 2008, when he was in service. As per him he was entitled to be considered for promotion against each of the said three vacancies. He also had an issue pertaining to the seniority with reference to one Monideepa Mukherjee who was promoted on July 10, 2002.6. The Tribunal has noted that DPCs were not convened because the Recruitment Rules were under amendment and discipline-wise seniority list was under preparation. The Tribunal has found that this delayed holding of DPCs. The Tribunal has found that it was not case where conveying of DPCs were delayed to deny benefit to the petitioner. The Tribunal has additionally noted that no person junior to the petitioner was promoted. The Tribunal has noted that Monideepa Mukherjee was senior to the petitioner. The Tribunal has also noted that ACR of certain officers in the zone of consideration were not available in the year 2004. The Tribunal has found that only two vacancies existed as of the year 2004 and 2005 which were filled up only on July 27, 2010, date 23 months after petitioner retired on August 31, 2008.

7. The conclusion is that no directions could be issued post-retirement of the petitioner to hold review DPCs as of the year 2004 and

WP(C) No.3056/2012 Page 3 of 4

2005 and if petitioner was found suitable for promotion, to promote him from retrospective date. 8. In view of the legal position culled out by us in our decision dated April 12, 2013, summary whereof has been noted by us in para 2 above, in view of the admitted facts noted hereinabove we concur with the view taken by the Tribunal and thus dismiss the writ petition but without any order as to costs.

(PRADEEP NANDRAJOG) JUDGE

APRIL 17, 2013 skb

(PRATIBHA RANI) JUDGE

WP(C) No.3056/2012 Page 4 of 4