Retired employees can be empanelled for consideration of promotion but are not eligible for actual promotion. Notional promotion cannot be granted unless an officer junior to the retired officer had been promoted prior to his superannuation.

BADAR DURREZ AHMED, J (ORAL)

1. This writ petition has been filed by the Union of India being aggrieved by the order dated 07.02.2007 passed in OA No.1466/2006 by the Central Administrative Tribunal, Principal Bench, New Delhi.

2. The issue before the Tribunal was whether the respondent (Shri R. N. Malhotra), who was a retiree and had not been considered for promotion during the period prior to his superannuation as the DPC was not convened in time, could be granted notional promotion pursuant to the DPC convened after his superannuation. The Tribunal disposed of the Original Application by directing the Union of India to consider the grant of notional promotion for the purposes of pay fixation and retiral benefits to the said Shri R. N. Malhotra. The Tribunal also directed that the said Shri R. N. Malhotra would be entitled to consequential retiral benefits which shall be provided within a period of two months of the date of receipt of copy of the order dated 07.02.2007.

3. Mr Sinha appearing on behalf of the Union of India submitted that the direction given by the Tribunal by virtue of the impugned order dated 07.02.2007 is based on complete misreading of the DOPT OM dated 12.10.1998. He also submitted that the direction given by the Tribunal is contrary to the Supreme Court decision in the case of Baij Nath Sharma v. Hon’ble Rajasthan High Court at Jodhpur and Another: 1998 SCC (L&S) 1754. Mr. Sinha submitted that the decision of the Supreme Court in the case of Baij Nath Sharma (supra) is an authority for the proposition that promotion cannot be granted prior to the convening of the DPC. Since the DPC in this case was convened after the superannuation of the respondent Shri R. N. Malhotra, he cannot be granted any promotion. He further submitted that even notional promotion cannot be granted to Shri R. N. Malhotra, inasmuch as, no officer junior to the said Shri R. N. Malhotra had been promoted prior to his superannuation. Had that been the case, the respondent Shri R. N. Malhotra might have been eligible for notional promotion. But, as no officer junior to Shri R. N. Malhotra had been promoted prior to his superannuation, the question of even granting notional promotion does not arise.

4. Mr Sinha also submitted that the DOPT OM of 12.10.1998 has been completely misread by the Tribunal. Insofar as the said OM is concerned, Mr Sinha submitted that it only provides that if a DPC is convened after an officer has superannuated in respect of the year when the officer was not in service, then such officer is to be considered only for the purpose of empanelment so that the correct zone of consideration is identified. He submitted that this is the true meaning and purport of the said OM of 12.10.1998. He also submitted that the Tribunal misconstrued this OM to mean that although actual promotion may not be granted to a retired officer, he would be entitled to notional promotion.

5. On the basis of the aforesaid arguments, Mr Sinha submitted that the impugned order cannot be sustained in law and would have to be set aside.

6. The learned counsel appearing on behalf of the respondent submitted that the order passed by the Tribunal was virtually a consent order. According to him, the case of the respondent Shri R. N. Malhotra had throughout been only for the grant of notional promotion. The Union of India was opposed to the idea of actual promotion but, did not, in fact, oppose the question of notional promotion which had been raised by the respondent before the Tribunal. It is on this basis that the Tribunal has passed the order dated 07.02.2007. It was, therefore, submitted by the learned counsel for the respondent that the Union of India cannot now take an entirely different stand and oppose even the notional promotion, which has been granted by the Tribunal.

7. The learned counsel for the respondent further submitted that the view taken by the Tribunal is also supported by the OM dated 12.10.1998. According to the learne