The court ruled that retrospective promotion without statutory backing is untenable under civil service rules, emphasizing clarity in entitlement for promotions.

Judgment Sushrut Arvind Dharmadhikari, J.

The present Original Petition under Article 227 of the Constitution of India challenges the order dated 28.03.2024 passed in O.A.No.180/00352/2020 by the Central Administrative Tribunal, Ernakulam whereby the learned Tribunal has disposed of the O.A.

filed by the respondent.

Facts

2. The brief facts of the case are that the respondent herein is an Assistant Engineer in Military Engineer Services, presently working in Thiruvananthapuram. She was recruited as Superintendent B/R on 09.11.1987. The said post was subsequently re-designated as Junior Engineer (Civil). She was promoted as Assistant Engineer on 23.11.2003 and is continuing as such. The respondent is deeply aggrieved by non-consideration of her claim for promotion as Executive Engineer. According to the respondent, an Assistant Engineer, after the residency period of eight years, is entitled to be considered for the post of Executive Engineer. She had qualified for the said post on 23.11.2011. However, she should have been considered against the vacancies from 2012-2013 to 2015-2016. She applied for information under the Right to Information Act and obtained the details.

2.1 Thereafter she approached the Tribunal in O.A.No.794/2019 which was considered and disposed of at the admission stage, directing the second petitioner to consider the representation filed by the respondent herein and to take a decision in accordance with the rules within 45 days. In spite of the aforesaid direction, no action was taken. The respondent herein filed O.A.No.352 of 2020 before the learned Tribunal. The learned Tribunal disposed of the O.A. directing the petitioners herein to convene a DPC within a period of 90 days and considered the entitlement of the respondent to be promoted as Executive Engineer from the period in which she had fallen in the zone of consideration. It was further directed that the benefits including arrears of pay, seniority and such other benefits flowing from retrospective effect of promotion shall be granted to her. Being aggrieved, the Union of India has filed the present Original Petition before this Court.

Petitioner’s Contentions

3. The learned counsel for the petitioners, Union of India, contended that the learned Tribunal erred in directing the petitioners to consider the case of the respondent for promotion from the period in which she had fallen in the zone of consideration since the same is unsustainable both in law and on facts, and therefore, it is liable to be set aside.

3.1 The learned Tribunal failed to consider the fact that there was no fault on the part of the petitioners in non-convening the DPC. In fact, the DPC could not be convened due to various orders passed by the Court. The Tribunal also did not consider the fact that mere availability of vacancy will not confer any right to the respondent for promotion from the date of vacancy. The learned counsel for the petitioners also contended that the Apex Court in various judgments have held that unless there is specific rule entitling the applicants to receive promotion from the date of occurrence of vacancy, the right of promotion does not crystalise on the date of occurrence of vacancy and promotion is to be extended on the date it is actually effected. The order passed by the Tribunal to the extent of grant of retrospective effect to the promotion allowed to sustain.

Respondent’s Contentions

4. Per contra, the learned counsel appearing for the respondent opposed the prayer and submitted that DPC was held in the year 2024 and the respondent was included in 2019 panel. However, she was promoted on 29.04.2024. Subsequently, the respondent retired on 30.04.2024. The respondent was eligible for promotion from the vacancies arising during 2012-2013, 2014, 2015 and 2016. The learned counsel for the respondent further contended that on account of the inaction on the part of the petitioners, her legitimate promotion as Executive Engineer has been inordinately delayed