F. No. A-23011/21/2015-Ad.IIA Government of India Ministry of Finance Department of Revenue Central Board of Indirect Taxes and Customs North Block, New Delhi, Dated the2#March, 2019 To, All Pr. Chief Commissioners/ Principal Director Generals under CBIC/ All Chief Commissioners/ Director Generals under CBIC Subject: Circulation of Order dated 22.11.2018 of the Hon’ble Tribunal, Ernakulam Bench OA No. 36/2015 filed by Smt P.C. Rajalakshmi, A.O. (Retd.) Vs UOI & Ors-regarding. Madam/Sir, Lam directed to forward a copy of the Order dated 22.11.2018 of the Hon’ble Tribunal, Ernakulam Bench OA No. 36/2015 filed by Smt P.C. Rajalakshmi, A.O. (Retd.) Vs UOI & Ors for your information. The said judgment may be cited/ referred while dealing with such/ similar cases, if any, pending with your Zones/ Commissionerates/ Directorates. Yours faithfully, Encl: As above. creas Under Secretary to the Government of India Tele: 011-23095528 Copy to: DG System, CBIC with a request to upload it on the website.At Original Application No. 180/00036/2018 Original Application No. 180/00207/2016 Fecndeuy this the_22 aay of Novernber, 2018 ous CORAM: , um Hon'ble Mr. E.K. Bharat Bhushan, Administrative Member Hon'ble Mr. Ashish Kalia, Jud!etal Mem! 1, Original Application No. 180/0003672015 - con P.C, Rajalakshmi, Administrative Officer (Retd.), Central Excise, Ragam, House No. 1-4104, Gurukal Road, Bast Hill, West Hill PO, Kozhikode-675 005. Applicant (By Advocate: Mr. CS.G. Nai) Versus 1, Union of India, represented by the Secretary, Department of Revenue, North Block, New Delhi ~ 110 001 2. Chairman, Central Board of Excise é& Customs, North Block, New Delhi 110 001, e 3, Chief Commissioner of Central Excise & Customs, Central Revenue Buildings, LS. Press Road, Cechin— 682 018. 4, Commissioner of Central Excise & Customs, Central Revenue Buildings, LS. Press Rod, Cochin ~ 682 018. 5, Commissioner of Central Excise & Customs, Central Revenue Buildings, Manachire, Kozhileode ~ 673 001. 6. Secretary, Union Public Service Commission, Dholpur House, New Delhi — 110 069. son + Respondents [By Advoeates: Mr. N. Anilkumar, SCGSC (R1-5) & . ‘Mr. Thomas Mathew Nellimoottil (R6)] Original Application No, 180/00207/2016 -‘any P.V. Sujatha, W/o. N.K. Krishnan, aged 65 years, Administrative Officer (Retd.), Cental, Excise, Seiki i Sreevilasam Road, Valiyapadar, Edapally PO, Cochin-682 S. Thulasi, W/o. KK, Sukumaran, eged 64 years, Adininistrative Officer (Retd.}, Cen'ral Excise, Kadavil House, ERPS No. 7, Kattithara Rod, Maradu PO, Emakulem District - 682304, J. Ruhiynnath Beevi J., W/e.Mohabydb Jan Sahib, aged 65 years, ‘Administeative Officer (Retd.), Cen:ral Excise, Rahath, ‘Vellappilmmukk, Mayyarizdu PO, m—691393, ov Applicants (By Advocate: Mr. C. 1. Union of India, represented by the Secretary, Derartment of Revenue, North Block, New Delhi = 110 001 2. Chainman, Central Board of Excise & Customs, North Block, ‘New Delhi - 110 001, 3. Chief Commissioner of Central Excise & Customs, Central Revenue Buildings, 18. Press Road, Cochin ~ 682 018, 4. “Commissioner of Central Excise & Customs, Ceniral Revenue Buildings, LS. Pre:s Road, Cochin - 682 018. 5. Commissioner of Central Excise & Custoris, Central Revenue Buildisgs, Manactira, Kozhikode ~ 673 001 6. Commissioner of Cental Excise & Customs, ICE Bhavan, ress Club Road, Thiruvananthapuram - 695 001 7. Contmissioner of Customs (Preventive), Catholic Centre, Broadway, Cochi ~ 682 031. Respondents (By Advocate: Mr. P.G. Jayan, ACGSC) ‘These applications having been heard on 13.11.2018, the Tribunal on ARI Bous delivered the following -3 ORDER Hon'ble Mr. Ashish Kalia, Judicial Member ~ OAs Nos. 180-36-2015 and 180-207-2016 have comon points of fact and law involved and hence are being disposed of through this common order. The pleadings, documents and records in OA No, 180-36-2015 are refereed to inthis common order for the sake of convenience, 2. The relief claimed by the applicants in OA No. 180-36-2015 are as under: “To dizect the 2™ respondent to promote the applicant as Chief Accounts Office based on the select panel prepared by the DPC hed for the yesr 2009-2010 or 2010-2011 with al consequential benefits Gi) To diet he reapondns oes he ay oh pica in th cae of Cher Accous Oey, gat eseste of pond diane coseguct bb the yeometon and anc of al seinen bent intng eee Enea! tou | (Gi). Ceant such other reli or rlits that may be prayad for or that xe found 1 be just and proper in the nature and cirouastanees of he ease, 9) Grant cost ofthis 04," 3. ‘The relief claimed by the applicants in OA No, 180-207-2016 are as under: “(To direct the 1* and 2" respondent to promote the applicants as Chief ‘Accounts Officer based on ths select panel prepued by the DPC held fo the year 2008-2009 and 2010-2011 asthe case may be, wth all consequential benefits (i). To direct the respondents to refix the pay of te applicants in the aire of Chief Accounts Officer, we€. Date of notional pr motion and . sont aes of poy and allowanecs forthe prot of naira! promotion and | ‘evise all reiement benefits including pension, gratuity, commuted value of pension, leavecncashment amount et. within ¢ stipulated period (ili) Grant such other relief or slits that may be prayed for or that ere Fund be jus and proper in the ature and ircamstances oF he ee p60). Grane doitof tis OA.” Yat4, The brief facts. of the case in OA No, 180-36-2015- are that the applicant is a retired Administrative Officer from the 5* respondent office 31.12.2010 on superannuation. Ske had more than 14 years of service as ‘Administetive Officer. The next promotion was to the post of Chief ‘Accounts Officer. However, on account of the delay and laches on the part of the 2"! respondent in convening the DPC fer promotion to the post of Chief Accounts Offer, she epplicaca though included in the panel for promotion ax Chiet Agrouuts OiToee in 2009-2010 and 2010-20111 was not considered for promotion. as Chief Accounts Officer as she,had retired by the time the DPC met in 2014, Therefore, no promotion order was issued in her favour, Applicant submitted representations request to grant her notional promotion w-e-f. The date on, which it was due to her but so far no reply has been received. Applicant submitted that in an identical ease in OA No. 996 of 2012 this Tribunal ed the respondents to promote the applicant tverein although he had rotived {rom service before the DPC meeticg. The applicant therein was granted notional promotion from the dats of occurrence of vosasey with oll consequential benefits inchuding monetary benefits. The applicant herein prays for a similar treatment as in OA No. 996 of 2012. © 5, Notices were issued to the respondents and they entered appearence through ‘Shri N, Anilkumar, SCGSC (R1-5) in OA No, 180/36/2015, Mr ‘Thomas Mathew Nellimootil (R6) in OA No, 180/36/201 and Shri P.G. Jofon, ACGSC in OA No, |80/207/2016, Reply statements have been filed i) < eyapplicant joi was promoted as Upper Division Clerk, Deputy Office Superintendent Lovel I, Level 1, Office Superintendent and then as Administrative Officer on 171996, While working as Administrative Offices, she retzed fom service on superannuation on 31.12.2010, Respondents contend that sinoe the requisite documents and pateuars io enable holding of DPC's have to te collected from vatious fel Formats of CBEC sprend all over India in respect of eligible candidates some delay took in convening of the DPC. ‘Thereafter these details have 1 be compiled by the CBE to ensure that ihe information and materials submitted to the UPSC are fice from aay err -the DPC for promotion tothe post of Chief Accounts Officer fr the years 3007-08, 2008-09 and 2009-10 wes held on 22.6.2013. Thovsh Ce applicant was recommended by the DPC in the extended panel for the acaney year 2009-10, she was not promoted as she retired fom service on 431:12.2010 well before the date of holding ofthe BPC. Respondents prey for dismissing the OA. 6. Meard Mr, CG. Natt earned coursel appearing forthe applicans ie oth the OAS, Mr Ne Anilkumae, SCGSC, learned counsel appearing fo ihe respondent Nos: 15 in OA No. 180:36-2015; Mrs Thoms Mathew Nellimoottil, lamed counsel appearing for respondent No. 6 in OA No. 180-36-2015 and Mr. P.G. Jeyan, ACGSC learned ‘counsél appearing for the respondentg in OA No. 180-207-2016. Peruse tise We have also per (corpo) expert nots filed bythe counsel appearing fortheCu \ 1 dated 9* February, 2017 held as under: [n view of what is stated above the attempt now made by the applicant to rely upon the judgment in OP CAT 26172013 which was against the order in OA 296/2012 is af no aval to the applicant sine the judgment in OP CAT 2617/2013 hus already been distincuished by the Fonte High Court as can be seen fm the remand order ites Sines itis f remand order parties are bound by the observations made in the eid femand order, Since that remand orler has become final it i at open to the spplicanis to contend thatthe observations made in the sald remand ‘order is inapplicable tothe ease of th applicants. In para 17 ofthe remand ‘order elso it was made clear that the: ease proested by the appficant tat ‘rontotion is eutomatic’ orcs four yeas of service is over i untenable Bus it was siated tat the toston may I> different if suficient nutnbec of ‘vacancies were availa after cequig te elgbility and bofore the date oF Fecremeat of the respoceut n $9.9.1010, Agni it has beea observed in the reinnd océir tat fronioton ic ths vacancies had to be effected in terms of Rate 19 stritiy bed en the eenirity subject to acection of the tal, underlined by the Division Bench of ie Ligh Covet) 6.- Am additional staiement was file by the respondents afte the case ‘vas remanded by the High Court. The following information was furnished bythe respondents in the sai statement dated 8.12.2015, @ A DPC was held on 28.5 2609, 295.2009 and 19.6.200? for considering the nani ofoficor; who were promoted tothe post of Assistant Conanistoner upto 31.12.2004 and completed 4 years of qualfping service in the grace of Assistant Commissioner ao 11.2008. total mumber of 126 vacancies inthe grade of Deputy Commissioner as on 313.2058 was reported ta the above referred DIG, against which a total vember of $19 officers were promoted to the grade of Depity Connsissione, vide onder No.1382209 ded 306.2009, () | Th: promotce affcers who were promoted in the grade of Ascstant Commissioner pte 31.12.2005 were considered the DPC dated! 4.11.2010 for promotion tothe grade of Deputy Commissioner. Fwever, Siri Hally lay Ipe though promoted to the grade of Assistait Commissioner on 30:3.3008, wes rot ‘considered by the DOPC held! on,4.11-2010 for promotion to the ‘rade of Deputy Commissioner ashe fd reired from th service 2% 30.9.2010 afer attaining te age of seperamnuation te. prior fo (he date of DPC held on 4.11 2910 +i) The DPC held an 411.2010 was for considering promotion wat the grade of Deputy Cononssoner on aoc bats. Cees who "ere filling the eligibility ertrtafor promotion to We srode of Z Depiy. Cenmisioner was considered for promotion of ade BALES Whe sentorty tise in the feeder ‘grade of dasitent Ina similar motter in. GA Nv. 43 of 2013 this Tribunal vide orderCommissioner beyond ihe vacancy. year. 2001-02 has ot bern eres for. Tha ee at considered by the sid DPC “dated 4.112010 was thas not om the order of seniority. oy Due to pending ligation in th feeder grade or promotion (P tne grade of Assten Commsioner on regular basi 10 ce the grade of Assistant Commisstoner on regular Fear reymoron to tne grade of Deputy Commissioner was held aan re pass The DPC held on 41.2010 an adhoc basis was ot vacabet year based 387 vacances were Ing vacant in the grade of Deny © amisstoner as on 304.2010. Shel Hally lity pe was not coedered by the DPC held ox 4.11.2010 Jor promotion £0 the ‘rete of Depuy Conmisionr at he had retired from fhe serie Be 8 a010 after entaning the age of superarmuation Ie. prior fo the date of DC held on 4.112010." 4. eis sated that eeview DPC was held on 12.11.2010 for reviewing Tes pple hatd om 291112002, 273.2003, 2742004, 272.2005, 1742006 sae f:009 for considering. promodon to whe grade of Depa aa aesaner on. edkow basis in Tespest of officers fiom 1997 bal le oe wns farther ated thatthe DPC eld on 4.112010 consiered so ea of duly recrlted officers of 2005 batch and offices no were Pe Sots to the grade of Assit Cecnisiners upto 31122005, te flan! was promoted 1 the grad of Assistant Commision on feet SPEC eg OOS, It was stated bythe respondents before the Hons ra Cure hat dc to pening litigations in the feeder rade for Pomoc High Cot of assistant Commision on regular bats promation ro Pe ee Deputy Commissioners held on aoc basis and tat he DPE ae PPO was on aoe basis and was not on vacancy year basse ae on erat made avaiable to the Honble High Court would show tht Fey ctamneics were lying vacant inthe grade of Depuy Commissions eee 3 args anelcaa as ot considered by the DPC bed on 4.112010 ee owoiton othe grade of Deputy Conmssonr since he Bad sy {1 Po tom service on 309.2010, after ataising the age of superaameioe. aes eine stand taken by the fespodens i thal thought review DEC aac an 11,2010 the applicant wis wt considered for promotion Wo wes Ppa Connisonren the pound tht the appt Ea relied fa 30.9:2010. The son co ake ty the Zxgondent ba ben ten xcepon (2 5 Mee comme fr tke appro oligo fit wee by the, enna onside he apie for prenoton zing te pod voces fe Sp2010, Ata nely te aprBcat was promo 9 so paisa Connon cn 982005, Theos by could thre four yer lg ereca ol 083082009. es te ee om conpusion af 4 yeu tat on 308.2009, art nls wes ated ote ps! of Deputy Canrasioner caus i was ete fo Pemotn: Tai as ben set mie bythe Hoole High ue lies pant it eens cosertn Wont! ee uf and 2 he OSH prod fon 3082009 alt be segue the race pred on peraaton on 309.2010, Thisnot qhalicaon ant pr Jus tat ery were veces. According wo he 1 \AEBREE OUP GerDre been convened weary te case of he aos ert een conte Sra los nish es act ~~ AS gould have got promotion.9. A steed ener the cantution ised by the applicant that the promotion is based on seniorly aloce has already been segatived by the Fonte Fign Cour, twee curly held that the emotion Frm grade V to CGaade IV fen fa Assistant Conmissloasr to Deputy Cemmssioner is bz ten of selesion tn not aieed on scniecty. The respondents woth mtd tat since has steady bes held by the High Court by pointing fut the differant ors use in Rots 19 ard Rule 20, that prometion from the Assistant Commissioner 19 Deputy Commissioner ie, from Grade V t0 Grade TV is by selection avd not based on seniority, whether, without Considering the review DPC te applicant is ened tbe promoted to that fos. 10, The leamed counsel for the avplicent has relied ypon a. decision of, the Hosble High Court of Delhi Gudgment dsted 2822012) in DaSahadera Singh Vs. Union of Indla and others (FP(Q) No 554972007). tn tht case the pettioner therein became eligible for be onadered for promotion to the post of Deputy Commissioner in the ‘ecaney year 2005, relevant date fo: reckoning eligiblty being 1.12005 tnd the appliact had zompleted 5 ysars service in the grade of Assis ‘Conmisslane:on 28.6 2004, Teas rntended that no DPC was eld inthe Sar 2008. During the pendeney of the orginal application, the petition Tiereia wer premeted os Depuy Coxunisstoner wee. 410.2006, {in view ibe sald promotan thé evcinal copFeaton fled by whe applicant was Uismesad and his pocer For promelien with effet from 26.6.2004 was declined. Its sbseeved by the Tic. cble High Court of Delhi thet had the tpapodents altered fo te ime schedule laid own in dhe model calender, the patiioner would Lave teen corsgered for promotion for the veaney year 2005 sometime in 2004 and since hs has been found fit for promotion, hed tho DPC been held ia the yoir 2004, he would kave been granted promotion, wilh effect ftom 11.2005 which was the crucial date to stern the eligibility forthe vacaney year 2005, The facts dealt with therein are enizely eiferent, the ‘sured counsel for the respondents Submits tis pointed out that in thal ease nobody was either promoted or Girly appointed as Deputy Commissioner between 11.2005 when the pettioner therein became eligible to be considered for promotion on $3616.2008 when he was achualy prmoted and so it was held that the promotion of the petitiones wef, 1,1.2005 will not adversely effet any ‘cher person nor wilt distur the eXisting seniority. But it was held that fad scmeone been appointed or promed as Deputy Commissioner between 111-2005 and 26.5.2006, the postion would have been different 11, The judgment rendered by to’ Hon'ble Supreme Cour in Civil ‘Appeal No.6770/2013 (Gdgrientdaed 148.2012) also as ao application {o the facts of this case, There tho gestion was whether a person can be eprived of his pension without the anhority of lavt which is th oustituional mandate enshrined in rele 300A ofthe constitution. Here, there vas no attempt onthe pat ofthe respondents to take sway any part of pension, gratuly oF even leave encashment and as such the said dession has no relevance atl, 12, The decision of the Hon’ble Supreme Court in Union of Tada and ther Ve. RK, Vathera and others - 1989 Supp.(2)SCC 625 : AIR 1390 'SC-442 as been relied upon bythe leaned Sr. Panel Cental Govt. Couns ‘appeatus_for the respondents, That was a case where there were to Duties of $12posts available in the grade of Scentis-B in 1979, Tn view fof Tale 81}(@) ofthe Rules mentioned therein tae Junior Seientie officers‘ere entitled fo be promoted to the 50% of the posts; that isto sey 256: posts, Those 256 posts were filled up by peemnotion ofthe Junior Seientiio Officers between 1979 and 1983. Accortieg tthe respondents the posts Df Scientist B to which they have beex promoted wef. 16.10.2008 were created beeween 1984 and 1985 and secondingly the respondents should have been promoted to those posts wi effect from 17.1984, — It was observed therein thatthe promotions ofthe Juloc Scientific Offices to the posts of Scients-B are vacaney based sad such promotions are granted Aer the assessment is made by the Board as provided in the Rules, ‘Normally th promotions will ake effet ely fromthe date of granting such promotions. The only ground on which the Tribunal has directed thatthe romotions ofthe respondents shoald take effect from the date the posts oF Scientst-B vere created vas that up w 1983 such promotions wero ven ‘effect to fiom the Ist July ofthe yeat in which the promotions were peaned ln thot case the Tribunal directed dt the promotions of the applicants therein should take effect fiom the date, te post of Scientist B were created; that is up to 1983. Such promotions weré given effect t0 from 1" July of the year in which the promotions were granted. Dealing with tht issue it was hele ‘We co not know of any law oF cry rile under which the promotion 4s 10 be effective from the date of rearian ofthe promotional post After a post falls vacant for any reason whatsoever @ promotion to ‘that post should be from the date the promotion is granted ed not rom the date on which such ports fall vacant he sume way when ‘adalttonc! posts are ereated promotlons 40 those posts eon be ranted oly after the cssessnent board has met and made its Fecor:mendavions for promotions being granted. {fon the contrary promotions ure directed 10 become efectve from the date. of creation of adctional post then it would have the effect of giving ‘promotions even before the axtecsmant board has me and assessed the suitebility ofthe candidate for promotions." 13, Accosding to the respondents thie decision is perforce applicable to mn ha. 14. The decision of the Supreme Court in Union of Inds and others Ys, NRBanerft and others ~ Judgucent dated 16.12.1996 has also been relied upon by the respondents. Ic was observed dat Elling up of the posts are done in clear or anticipated vacancies arising in the year. But ita aso ‘eld that it isa settled Lar that mere inclusion oF one's name in the st does ‘ot confer any right in hirer to appeinimest. fe is elso.not incumbent that al pots should be filled up but the authority must act reasonably, fly snd in public interest and omision thereof should not be acbitary. 15, _ In Sunarasen Bas Vs. Uaion of tnd ad others - 1991 (2) SCR ‘567 ie vas held bythe Consintion Dench that acksion ofthe name of & candidate in merit ist does nt confray right to be sete unless the rolvant Rezulieat Rules olnet. eta also eld hatte State i no under no legal Cuty tol up all or any ofthe vacances eventhough the State aos in an arbitary anaes. Again it was held that mere inchsion of ‘ones name in he pans doesnot confer ou hiner any indefetle rig 10 appoint. 16!" -THE decision rendered by the Houle Supreme Cousin Bay Net ‘Sharni YRoasihen High Cocrt (lecfed on 24.1998) aso hasbeen relied upon") the respondent in suppor of the sebmisson thet the0 dhe Ha CL til tas bce ered to earlier wasted tor py Tralonble Supreme Cour in Rajnati Sharma, “As sated ean ahaa’ case 1 was tell tat afer east falls ‘vacat ee age saticever a prometion io that post sul be fom the date he recs Na Staaten he die on wich such pot falls vaste Bop ea Starmu’s case cia suomi wae held tht the sce oo, constituted merely forthe benest of Sexaln purpote inte viw ae in that particular ease wes fx oh {ane eranted and that fon the contrary, promotions me directed ee STectve fom the date of creation of additonal peas then Kwccld ere ae SESE of giving promotions even before the assessment based hes nat sy ‘assessed the sutabiliy of the candies for promoting Init ta, itcgmcat ia Nirmal Chandea Sina Ve. Union of Sadia and others — Cit Appeal No.8 88 of 2001 decided on sac, "was held bythe Suptea:s Coun 7H has been betta series of decision ofthis Court toe @ mromation takes eect ot cat of being gramed onto fo the tite of scureice of carey ar trenton Of the pon pie Ua of ta ant ote A. Vaden nd ae fas 00) SCC ts. Sate of Weranchal-and anata s Binesh Keer Sterss 2007) 30083, Lo Sita Ba Gomrninnt of Anica Paiess 198802) SCC 201 Senay ¢ ths, Mothers Ste of Bihar ar ners 2004 (0) SCE ‘Agoin in Para 10 it was hee ret Sted low thatthe dts of eccrence of vacancy ts nat rele! for this purpose" ‘namely; forthe purpose of granting prraotion, Cate Sei Scion rendered bythe High Court of Deli in. 2P Yemen Va GIy Seeretery amd eaters WEIC) No, 7968/2012 Galore tae (411-2013) has also been relied wren, by the learned Cae ee epondent. Jn that case the peter being aggrieved by hig nore Enrhe by SUS PEK of Assistant Ditecor approached the Cou seeing Tia zgoet Bmeted to the post of Asistnt Director with ter fe doua2OO7 i. the date when the vacancy became avaiable eaten Sremattentl benefits inching arcars of pay. Though the Moncey Member of CAT sje wilh te claim of the soplcon et iailstative Member didnot agren wih the sane and so rom rene tpplesnomnambs. Aereting with te Adsinisative Member ihe ee peation was dismissed. The view igen vs (ote effet tee ee Seepew DEC and review promotions made out nly when diet Sei ae Bat the respondents persons junior othe applicant got onenng Ad 8 fet gay the notional promotion i granted so thet Portasbenefits are suitably modified. Inthe ease alt with therein the applicant had retired fom service ow 31:8.2000-and no person junior to him was romated prior to tht date. it was held tht it was not necessary to create ‘supernumerary post as the applicant ad aiead9 retired and was no Tonger eligible fr promotion. In tat cate the respondents admitted that they have made @ mistake in hlding thatthe 6® point was of SC candidate ‘whereas it should have been of general candidate but no DPCs were held pri o the retirement of the applicant and wo persons who axe juniors to the applicant were promoted by helding DPC in the year 2009.. (The icant therein retied on 31.8.2008). Thus no claim was made out for tither review DPC of for notional promotion in favour of the applicant. It ‘vas argued before the Delhi High Court on behalf of the petitioners therein thatthe respondents were required to convene & DPC much in advance 19 prepare a panel fora vacancy that may accrue inthe next one yea and that the petitioner had made representation (0 that efecto the authorities ‘concerned, “Thus according to the prior therein for the fault of the Fespondents the pelioner aust act suffer. It was argued tbat if a promotion is denied to an employee because of the mistake of ‘ministration aad due to no faut ofthe employee then the authorities ore oud to pay the aears of tlary upon giving the bencfit of etospestive promotion afer realizing their mistike. It wos pointed out that the fespondents had realized ther mistake as to whether the vacancy sboo'd fo to the SC candidate or should it go (0 the general candidate. It was found that the vacaney in question vat tobe filled by a general candidate and not by a SC candidate, The DPC was convened on 10.12.2008, Since the petitioner therein stood retired on 31.1 2008 hls candidature was not tonsidered. Referring to the DOPAT OM dated 12.10.1998 it was held thatthe procedure i o be followed by DPC in regard to retied employees based on Which it was found thet retired explayees are not entitled to actual promotion afler his retirement in terms of the said instruction. ‘Though they were deluded in the zoe of consideration for relevant years their names were not inchuled in the panel for promotion. The leamed counsel for the applicant would submit that the aforesaid decision would hot negative the ease pleaded by the applicant. Even in that case what was Stated was with respect to the actual promotion and not the notional promotion 19. _Acsording to the applicant thiugh ke had retired fiom service on 30.09.2010 before the dat of DPC, thre is nothing which would preeuds te department trom granting the applicant soticaal promotion 50 as to Ina ike in retieal benefits 20. "An eater decision ofthe Delhi High Court in Union of India Vs ‘Rajinder Roy ~ 2010 (1) 6 DIT 706 and other decisions were referred to by the High Court of Delhi in DP Vermals ease, cited supra. The Memorandum which was refered to by the Delhi High Court reeds as follows “We are conscious of the fact that instructions have been issued by the DOPAT, Government of India dated September 08, 1998 ‘and September 14,2007 to the extene tha a parel for promotion Imus be prepared in advance against anticipated vacancies. As ‘nd when vacancy arises the promotion 0 that vacancy is made {from the panal. dt the same tne, the OM dated October 12, 1998, fisued by DOPAT, Government of Ini, cleo stipulates procedere to be followed by DPC in regard raed employees, In tarms of the said instructions, whic have beon reproduced by the Tribunal2 its revealed that a retired employee Is not entitted to any actual promotion afer Bs veivemen Th lerms of the #22 testrections the names of the retired employees are inciaded in the zone of ‘consideration 0.08 determine the corret zone of consideration for relevant years eecept hat their names are mot tmlaced in tse ‘panel nor thay are promoted” Retersing to the seme it vas hold by the High Court of Dei that this pat of the Office Memorandum isin consonance with te the daison of Honble Supreme Court in Bai Natt Sharma (supra) since x provides that the superannuated employees should nat be considered by the DPC hich is being held ser thir cuperattuation ed in thee place fusion: who are otlersise ligile should be brought into. the zone of considertion. The exsument odvar:ed,by the leaned counsel for dhe applicant herein that since the aplicat hed retired he may no be entitle 1. get actual promotion, but be would be entitled 40 get nogonsl romotion. But it was held by the Honble Suprems Cou ia IA. Vadera's ease 1989 Supp(2) SCC 62S cited supra “We do net kapw of eny lew or rt rae under which a promotion tobe efecire from the dete af eration of the promotoret pos. After post falls vacon for any reson wiatzoever, «promotion £0 ‘that post shouldbe from the dae the promotion Ie granted ard not from the date on which suck pos fells vacant.” 21, Twas held inthe very sane judgment in ALK. Vadera: “13. The clear view taken’ by the Supreme Court is that a promotion cannot be grand prior to the convening of the Departmental Promotion Comite which considered the question ‘of promotion. The enly rider i where a junior has been promoted ‘riot to te superannuation of ered emplayee.” 32, Therefore, in view of te devising aforesaid we are unsble t agree ‘with he eared coun! for the arp.ent that applicant is ented to be franted. notional prontotion especialy when there is so case for the Applicant that any of Lis juniocs va iven prometian during the period from 30.8.2008 till 30.9.2010 an which day te retired on superannustion, ‘As such we find no meit inthis Origital Applicetion, It is accordingly ismissed. No ordora to cost.” 8. Moreover in State of Udaranchal & Anr. v, Dinesh Kumar Sharma ~ (2007) 1 SCC 683 the Hon'ble apex court held as under: 26, ‘Therefore itis clear that unless a selection is made in secordance with the rules and in the absence of zur in accordance with the procedure Prescribed for the time being by sxccutve instructions isued by the Goverment and there can be no automatic promotion or appointment 10 {any post onthe recommendation of tie Pubic Service Commission, unless the government sanctions such romolion and appointment.28, It is clear ftom the above tat a perso appointed on promotion shall fot get seniority of any earlier year baz stall gc the seniority ofthe year in Uvich hisvher appontinent is ade. Therefore, in dhe present fact situation the respondent cannot claim promation fom the date of ocvurrenes of the ‘acaney which is 1995-96 but can ocy ge promotion and seniority from the imo he has been substantively appeimed te. from 1999, Likewise, the eniority also will be counted agent x promotion/appoiatment in the ‘have fom the date of issuance of cre of substantive appointment inthe said cadre, i, rom 19.11.1999." 9, Learned counsel for the applicants has relied on the following ., Hon'ble High Courts as well as judgmentsforders of Houble apex Tribunal in support of his contention 8) Union of India ete. v.K.V. Jonkiraman etc.- 1991 AIR 2010 {) Union of India & Ors. v. GD. Goel & Ors. - WE(C) No. 4657 of 2065 & connected cases. ©) Dr. Sahadeva Singh v. Union of India & Ors. - WP(C) No. 5549 of 2007, 4) Mrs, Shashi Kiran Sure v. Suilia Tourism Development Corporation Lid.& Ors, - WP(CFNo. 9010 of 2607 ©) Hargian Singh v. Government of NCV & Ors, Dated 2.9.2008. 10, We find that the subject matter involved in the present case had already been considered by the apex court in the judgment of Dinesit Kumar Sharma's case (supa). Unless a selection is made in accordance with the rules and in the absence of rules, in accordance with the procedure prescribed for the time being by executive instractions issued by the ccan be ng automatic promotion oF appointment to Government and aniy post on the recommendation of the Union Public Service Commission, Fo STENT TTT11. In the present case the applicants claims for promotion from the date of ‘ecurtence of vacancy. However, in view the judgment of the apex court in Dinesh’ Kumar Sharma's case (supra) we find no merit in these Original Applications. Accordingly, both the Original Applications are dismissed ‘There shall be no order as to costs. —~(ASIISE KALIA) “sanfi ri. set (EK, BHARAT BHUSHAN) ADMINISTRATIVE MEMBER15 Original Application No. 180/00036/2015 APPLICANT'S ANNEXURES ‘Annexure Al True copy of schedule to the Recruitment Rules for the post of Chief Accounts Officer. Annexure A2~ ° Truc copy of the 32012/1/2008-Ad.IIA dt, 15.3.2010. Annexure A3~ ‘True copy of the lene F. No, A-26011/150/2010-Ad TA at. 31.12.10, ‘Annexure Ad - True copy of the affiéavit filed by the respondents on 129.2013. ‘Annexure AS True copy of the OM No.22011/498 Est() dt. 12.10.98 issued by the DOPT. Annexure AG— True copy of the OM No, 2201 1/1/2014 Est (D) dt, 14.11.2014, + sentaining the names included in Annexure A7~ Tine copy of the derstion for promotion forth year 2009- tie zone of co 2010. Annexure AS— ‘True copy of the order t. 28.1.2013 ‘Aumexure A9~ ‘True copy ofthe judement in OP (CAT) 1801/2013. Annexure A10 ~ ‘True copy of the promotion order No. 26/2014 at 122.2014. Annexure AIL — True copy of the letier Ne. CNo. 11/03/03/2009 Esttde. 5.10.2010. ‘Annexure A12- True copy of the representation dt, 1.12.2010. ‘Annexure A13~ True copy of the representation dt. 7.8.2013. ‘Annexure A14— True copy of the ordsr F. No. A-32013/3/2011-Ad.11A, dt 248.12, Annexure AJS~ Truc copy of tie OM No. 22011/9/1998-Est(D) dt.8.9.1998 read with OM of even mumber dt. 13.10.1998. nnexure ALG =, True copy of tie OM No. 22011//98-Estt(D) 7 et. 14,12.2000.anes Annexure A2 ~ ‘Annexure A3— Annexure Ad Annexure Ad ~ a Annexure AL9— Annexure R1(a) —True copy of the OM No. 2201 1/4/98-E: Qrizinal Appl A h / -AtinexureAi1*, Tiue copy éfthe OM No. 16 Truc copy of ths letter F1V15(132013n-AP-2 dt. 246.2013, ‘Annexure A19(a)-True copy of the dates of birth of those who were found fit by the DPC. RESPONDENTS’ ANNEXURES :(D) dated 12.10.1998, ‘ion No. 190/09207/2016 ‘Trut copy of srhedute to the Recruitment Rules forthe post cf Chief A scouts Officer. True copy of th: 32012/1/2008-AAIIA és. 153.2010. True copy of tho letter F. at, 31.1200. 9. A-2601 1/150/2010-Ad A True copy of the letter F. No. A-26011/28/2015-Ad TA at, 17.6.2015, True copy of the order dt.28. 1.2013 in OA No. 996/2012. True copy of tl judgment in OP (CAT) 1801/2013 dt. ‘Tee copy of the promotion order No. 262014 ét 12.2.2014 issu by the 4 respondent True copy of the affidavit filed on!2.9.201 80/2013 in OA No. 996/2013. , inCP(C) No. True copy of the OM No. 22011/4/98 Esti) dk. 12.10.98 issued by the DOPT. ‘True copy of the OM Ne, 14.11.2014. 2201112014 Est(D) dt. 2201 1/9/1995 (D) de.u £9,1998 read with OM of even mumber dt 13.10.1998 % i Annexure AI2~ True copy of the OM No. 22011/9/98-Estt(D) dt. é 14.12.2000. Anngxure A13— True copy ofthe representation 39.2015 (1* appican’). ‘Annexure A1d ~ Truc copy ofthe representation dt 20.7.2015 (2 applicant). “Annexure A1S~ True copy of the representation dt 20.7.2015 (3" applican. [Annexure ALS True copy of the representation dt. 20.7.2015 (4° applicant. “Anmexure A17~ Truc copy of the reminder dt. 21.10.2015 (1* applicant) “Annexure A18— True copy of the rinder dt, 9.9:2015 (2% applicant) ‘Annexure A19 — Teue copy of the reminder dt, 16.9.2015 (3" applicent) ‘Annexure A20~ True copy ofthe rerander dt, 109.2015 (#* applicant) ‘Annexure A2L— True copy of the ordet No. 4/2012 dt, 24.8.12 issued by the 2" respondent, Annexure A22~ True copy ofthe onfer No, 4/2014 dt, 28.11.2014 issued by the 2 respondent RESPONDENTS’ ANNEXURES Nil