Withdrawal of granted notional retrospective promotion without opportunity of hearing violates natural justice, especially where delay in DPC was administrative and employees eligible, entitling restoration for seniority protection.

ORDER

Hon’ble Ms. Harvinder Kaur Oberoi, Member (J):

Brief facts of the case are that the applicants were serving as Inspectors in the Department and became eligible for promotion to the post of Superintendent. While in other Zones of the Department across the country the Departmental Promotion Committees were convened in a timely manner and eligible officers were promoted, in the Delhi Zone there was a delay in holding the DPC. Owing to this delay, the applicants were not considered for promotion at the appropriate time. Subsequently, notional promotion with retrospective effect was granted so as to align their seniority with the vacancy year. Promotion from Superintendent to Assistant Commissioner is based on an all-India seniority list of Superintendents from all Zones. Due to the delay in Delhi Zone, juniors of the applicants who had joined service later but were posted in other Zones where DPCs were held on time, were promoted earlier and placed higher in the seniority list. In these circumstances, the issue arises as to whether notional promotion with retrospective effect was justified and whether any adverse action affecting such promotion could be taken without complying with the principles of natural justice, and further whether the decision of the DPC could be reviewed in the absence of statutory power.

2. Learned counsel for the applicants submits that it is a settled principle of law that employees cannot be made to suffer on account of administrative lapse in convening DPCs. Reliance is placed on the judgment of the Supreme Court in P.N. Premachandran v. State of Kerala, wherein retrospective promotion was upheld in a case where the DPC had not been convened for several years due to administrative lapse. The Court held that employees who were qualified and later found eligible by the DPC could not be denied retrospective promotion when the delay was attributable to the State and not to them.

3. Further reliance is placed on K. Madhavan v. Union of India, wherein the Supreme Court observed that if a DPC scheduled to be held is arbitrarily or mala fide cancelled without justification and an employee is thereby prejudiced, the Government can grant promotion with retrospective effect so that the employee is not subjected to a lower position in the seniority list. It is submitted that the ratio of this decision squarely applies where the delay in holding DPC has caused prejudice in seniority.

4. Counsel for the applicant has also placed reliance upon Union of India v. N.R. Banerjee, wherein the Supreme Court emphasized that DPCs should be convened every year and that preparation and finalisation of yearly panels is a mandatory requirement. Even if the annual panel could not be prepared for justifiable reasons, year-wise panels of eligible candidates for each vacancy year must be prepared and appointments made accordingly. This principle was reiterated in Union of India v. Vipinchandra Hiralal Shah, where the Court held that failure to convene the Selection Committee in a particular year does not dispense with the requirement of preparing a select list for that year, and that when the Committee meets subsequently, it must prepare separate lists for each year keeping in view the number of vacancies and eligible officers of that year.

5. Counsel also relies on Union of India v. Central Administrative Tribunal, where the Delhi High Court held that when the department fails in its duty to hold assessment boards annually