'Regular service' for promotion eligibility counts from vacancy year, not physical promotion date, when DPC delay not attributable to employee.

ORDER

Hon'ble Dr. Sumeet Jerath, Member (A) :

The instant OA has been filed by the applicants under section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-

"i) Declare the action of the respondents illegal and arbitrary in discriminating the applicants from the direct recruits; and

ii) Declare the respondents to count the regular service of the applicants in the grade from 2011 from the period against the quota vacancy in which the applicants have been promoted; and

iii) Declare that the applicants have also completed the regular service of 5 years in the grade and further direct the respondents to consider the applicants' for grant of promotion to the grade of EE (NFSG); and

iv) Direct the respondents to grant all consequential benefits to the applicants' including pay and allowances in case the applicant's are declared approved for grant of grade of EE (NFSG) along with 18% interest on arrears; and

v) To award exemplary costs; and

vi) To pass any other order as this Hon'ble Tribunal deem fit in the interest of justice.”

2. The factual matrix of the case as per the counsel of the applicants is that the applicants were appointed in Military Engineering Services in the grade of Superintendent Grade B/R - I/II on various dates from 1984 onwards. They were later re-designated as Junior Engineer (Civil) after merger of posts. The promotional hierarchy in the cadre was Junior Engineer → Assistant Engineer (AE) → Executive Engineer (EE) → Superintending Engineer (SE) and direct recruitment through UPSC was also allowed at the level of Assistant Executive Engineer (AEE). Later on, Recruitment Rules were amended in 2004 vide SRO No. 95 whereby promotion to the post of Executive Engineer (EE) in the ratio of 33⅓% from AE (promotees) and 66⅔% from AEE (direct recruits) was permitted. Recruitment Rules were further amended in 2016 vide SRO No. 9 revising the promotion ratio to 45% from AE and 55% from AEE. The recruitment rules contain a clause stating that if juniors who have completed qualifying service are considered for promotion, seniors must also be considered provided they are not short of qualifying service by more than half of the required service or two years, whichever is less and have completed probation too. According to the counsel, the applicants were due for promotion against vacancy year 2011-12, but the Departmental Promotion Committee was delayed and conducted only during 2013 and 2014, allegedly due to delay on the part of the department. Thus, even though the applicants were eligible for vacancies of 2011-12, they could be promoted only in the years 2013-2014 due to delayed DPC. Subsequently vide letter dated 10.07.2017 the respondents sought APARs and vigilance clearance for granting promotion to officers against vacancy year 2011-12, but the number of eligible candidates kept varying which caused irregularity and delay in conducting the DPC. Aggrieved, the applicants moved representations dated 09.11.2017, 11.11.2017 and 14.11.2017 in this regard. However, their representations were rejected vide letter dated 22.12.2017 and 28.12.2017 in respect of applicants no. 2 and 3 respectively stating that the direct recruits have completed the regular service of 5 years in the grade and relaxation of service clause in the recruitment rules is to be considered for promotion purposes and the instant case does not relate to promotion as the financial upgradation is purely personal and has no relevant to the seniority position. Counsel for the applicants highlighted that an a