1. Notional promotion to a post and subsequent eligibility for further promotion based on the requirement of regular service in the grade. (Para 1 , 2 , 3 )
Back
Next 
2000 Supreme(SC) 629
2000(2) Supreme 649
SUPREME COURT OF INDIA
(From Delhi High Court)
M. Jagannadha Rao & Ruma Pal, JJ.
Union of India & Ors. -Appellants
versus
K.B. Rajoria -Respondent
Civil Appeal No. 2272 of 2000
(Arising out of SLP (C) No. 18815 of 1999)
Decided on 28-3-2000
Counsel for the Parties :
For the Appearing Parties : Altaf Ahmad, Additional Solicitor General, Raju Ramachandran, Sr. Advocate, Ms. B. Sunita Rao, S.N. Terdol, Anis Ahmad Khan, Arun K. Sinha, Rakesh Singh, Advocates.
Important Points
The Supreme Court held that 'regular service' for promotion eligibility does not mean 'actual physical service' but refers to appointment on a regular basis. Notional promotion granted to rectify a supersession counts as qualifying service for determining eligibility for further promotion to a higher grade.
Subject
Employment Law - Promotion
Act Referred
CENTRAL PUBLIC WORKS DEPARTMENT DIRECTOR GENERAL OF WORKS RECRUITMENT RULES: .
Headnote
Central Public Works Department (Director General of Works) Recruitment Rules, 1986-Selection of post of Director General (Works)-Prescribed qualification is Additional Director General (Works) with two years regular service-One K was given notional promotion to post of Additional Director General Works by order dated 10.6.1998 w.e.f. 22.2.1995-Post of Director General Works fell vacant 1.7.1997- K was considered for post of Director General by Promotion Committee in 1999-One R s petition claiming that he too should have been given notional promotion and eligible for being considered for post of Director General (Works)-High Court holding neither K nor R had qualified was eligible on 1.7.1997 for promotion of Director General-Reasoning was regular service in Rules means actual service and fictional notional promotion could not amount to two years experience-Unsustainable-Notional promotion given to K to set right wrong against him by giving promotion to his junior superseding him-In such case actual service for prescribed period not required in terms of Rules-Finding against K set aside. (Paras 6 to 21)
Legal Category Hierarchy
Table of Contents
2. Whether notional promotion satisfies the requirement of regular service for eligibility to a higher post, and whether a person without notional promotion can claim consideration. (Para 4 , 6 )
3. Regular service denotes appointment on a regular basis rather than actual physical service, and notional promotion counts as qualifying service for further promotion. (Para 7 , 8 , 9 , 10 , 11 , 14 , 15 , 17 , 18 )
4. Notional promotion granted to rectify supersession constitutes regular service and counts toward the qualifying period required for promotion to a higher grade. (Para 12 , 13 , 16 , 18 )
5. Appeal allowed and the High Court order set aside regarding the eligibility of the notionally promoted officer. (Para 21 )
6. Does the term regular service in promotion rules imply actual physical service in the post?
No, regular service means appointment to the post on a regular basis, as opposed to ad hoc, stopgap, or purely temporary appointments, and does not necessarily mean actual physical service. (Para 9 , 11 , 12 )
7. Does a period of notional promotion count toward the qualifying service required for further promotion?
Yes, if a minimum period of qualifying service is prescribed, the period from which a superseded officer is notionally promoted is reckoned toward the qualifying period for eligibility for the next higher grade. (Para 15 , 16 , 18 )
8. Is there a legal distinction between the requirements of regular service and actual experience for promotion eligibility?
Yes, requirements for actual experience are distinct from requirements for regular service; notional promotion may satisfy the latter but not necessarily a specific requirement for actual physical experience. (Para 19 )
JUDGMENT
Ruma Pal, J.-Leave granted.
2. The undisputed facts of this case are that the appellant No. 4 was notionally promoted to the post of Additional Director General (Works) of the Public Works Department with effect from 22nd February, 1995. The notional promotion was given by an order dated 10th June, 1998 in terms of instructions contained in the DPT s O.M. No. 22011/05/86 Estt. D, dated 10th April, 1989 as amended from time to time.
In the meanwhile on 1st July 1997, the post of Director General, (Works) CPWD fell vacant. The mode of selection to the post has been laid down in the Central Public Works Department (Director General of Works) Recruitment Rules, 1986, which were amended on 23rd March 1992 by the Central Public Works Department (Director General of Works) Recruitment (Amendment) Rules, 1992. The amendment came into force on 4th April 1992. The Schedule to the Rules (referred to hereinafter as the said Schedule) provides that the post of Director General (Works) is a selection post to be filled up by promotion from amongst, inter-alia, Additional Director General (Works) with two years regular service in the grade .
3. Since Krishnamoorti had been granted notional promotion to the post of Additional Director General on 10.6.98 w.e.f. 22nd Febuary 1995, his name was considered for the post of Director General when the Departmental Promotion Committee met in January, 1999.
4. Shri K.B. Rajoria (the Respondent No. 1 before us) filed an application before the Central Administrative Tribunal claiming that he was also eligible to be considered for the post of Director General. According to Rajoria, if the Departmental Promotion Committee had been held in 1995-96, he could have been appointed to the post of Additional Director General which had fallen vacant on 1.5.1995. His case was that he too should have been given notional promotion with effect from 1.5.95 in which case he would have also been eligible for promotion to the post of Director General. Rajoria claimed that he had been unfairly discriminated against because any Krishnamoorti was being considered for the post of Director General. It was however made clear before the Tribunal that Rajoria was not challenging the eligibility of Krishnamoorti to be considered but was only seeking consideration of his own case along with Krishnamoorti for the post of Director General.
5. The Tribunal dismissed the respondent No. 1 s application on 12th May 1999. The respondent No. 1 challenged the decision of the Tribunal before the High Court under Article 226 of the Constitution.
6. The High Court held that neither the respondent No. 1 nor Krishnamoorti were eligible on the cut off date i.e. 1st July, 1997 for promotion to the post of Director General. According to the High Court the words regular service in the Rules means actual service and that the fiction of notional promotion could not amount to the two years experience necessary under the Rules. The High Court was of the view that the notional seniority granted to Krishnamoorti by the order dated 10th June 1998 was no substitute for the requirement of two years regular service as Additional Director General (Works) which had been laid down in the relevant rules as the eligibility criteria for promotion to the post of Director General (Works).
7. In our view, the High Court s decision cannot be sustained. First, the concession of Rajoria before the Tribunal that he was not challenging the eligibility of Krishnamoorthi to be considered for promotion was overlooked.
8. Second, the High Court erred in not dismissing the writ petition on the ground of the obvious lack of locus standi in Rajoria who had never been granted notional promotion because the DPC was not in fact held for reasons which the High Court felt were unavoidable. Rajoria s case was built on hypothetical situations, and his position could not reasonably be equated with that of Krishnamoorti.
9. Third, the High Court erred in construing the words regular se
