DR. SAHADEVA SINGH vs. UOI AND ORS

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment reserved on: 16.02.2012
Judgment pronounced on: 28.02.2012

+ W.P.(C) 5549/2007

DR. SAHADEVA SINGH … Petitioner

versus

UOI AND ORS … Respondents


Advocates who appeared in this case:
For the Petitioner : Mr Suhail Dut, Senior Advocate with Mr Azhar Alam

For Respondents : Mr H.K. Gangwani



CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE V.K.JAIN


V.K. JAIN, J.
1. This writ petition is directed against the order dated 17.01.2007 passed by
the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter
referred to as “the Tribunal”), whereby Original Application No. 2125/2005, filed
by the petitioner, was dismissed. The facts relevant for this petition can be
summarized as follows:-
The petitioner before this Court was promoted as Assistant Commissioner
(Crops) w.e.f. 29.06.1999. The next higher post, to which the petitioner could be

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considered for promotion, was of Deputy Commissioner (Crops). The Recruitment
Rules for the post of Deputy Commissioner (Crops) provided that an Assistant
Commissioner (Crops) with five years regular service in the grade and possessing
Degree in Agriculture and Postgraduate Degree in Agriculture with specialization
in Agronomy/Plant Breeding and Genetics from a recognized university or
equivalent, could be promoted to the grade of Deputy Commissioner (Crops). Two
posts of Deputy Commissioner (Crops) fell vacant in the year 2004, one on
15.05.2004 and the other on 04.04.2004. As per instructions, issued by DoP&T,
the first day of the year in which the vacancy arose was to be taken as the date for
determining the eligibility of the officers working in the feeder cadre. The
petitioner, therefore, was not eligible for being considered for promotion against
the aforesaid two posts prior to 28.06.2004. Since no other person working in the
feeder cadre was eligible to be considered for promotion in the year 2004, the
vacancies which arose in that year were carried forward to the year 2005. The
petitioner became eligible for being considered for promotion to the post of Deputy
Commissioner (Crops) in the vacancy year 2005, relevant date for reckoning
eligibility being 01.01.2005, and he having completed 5 years service in the grade
of Assistant Commissioner on 28.06.2004. OA No. 2125/2005 was filed by the
petitioner seeking promotion w.e.f. 28.06.2004. No Departmental Promotion
Committee (DPC) was held in the year 2005. The DPC was held in the year 2006

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during the pendency of OA and the petitioner was promoted as Deputy
Commissioner (Crops) w.e.f. 04.10.2006. In view of the promotion of the
petitioner w.e.f. 04.10.2006, the Tribunal dismissed the said OA and his prayer for
promotion w.e.f. 26.06.2004 was declined on the ground that though an employee
has a right to be considered for promotion, he has no right to demand the
promotion.

2. It is an admitted position that two vacancies in the cadre of Deputy
Commissioner (Crops) arose in the year 2004, one on 15.05.2004 and the other on
04.04.2004. It is also not in dispute that since the Recruitment Rules for the post of
Deputy Commissioner (Crops) did not prescribe the day, crucial for determining
the eligibility for promotion, OM No. 22011/9/98-Estt. (D) dated 08.09.1998 read
with OM of even number dated 13.10.1998 became applicable, which prescribed
st
the 1 January of the year in which the vacancies arose as the relevant date for
determining seniority for the Recruitment Year 2005. It is also an admitted fact
that no person working in the feeder cadre was eligible for promotion to the post of
Deputy Commissioner in the year 2004 as the petitioner did not have the prescribed
service, whereas the only other Assistant Commissioner did not have the prescribed
educational qualification. It is also an admitted position that the Recruitment Rules
do not prescribe any date for the meeting of the Departmental Promotion
Committee to make recommendations for promotion to the aforesaid posts.

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3. The aforesaid OM dated 08.09.1998 read with the OM dated 13.10.1998
suggested a Model Calendar for holding DPCs. The Model Calendar, to the extent
it is relevant for our purpose, reads as under:
“SUGGESTED MODEL CALENDAR FOR DPCs

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W.P(C) 5549/2007 Page 5 of 40

12. All Ministries/Departments are requested to take
note of the above clarifications/modifications of the
existing instructions for wide circulation on priority basis
and strict compliance so that the desired objectives of
convening of DPC meetings/preparation of the approved
select panels as per the aforesaid prescribed time-frame
may be achieved.

4. Vide DoPT OM No. 22011/9/98-Estt.(D) dated 14.12.2000, Department of
Personnel and Training emphasized that the time-frame stipulated in the Model
Calendar needs to be strictly adhered to and in case of the prescribed time-frame
not being maintained, steps should be taken to fix responsibility for the lapse. The
aforesaid OM reads as under:-
“G.I., Dept. of Per. & Trg., OM No.22011/9/98-
Estt.(D),
th
dated the 14 December, 2000
Non-adherence to prescribed time-frame is a serious
concern and responsibility for the lapse to be fixed

The undersigned is directed to invite reference to
the Department of Personnel and Training OM of even
number, dated September 8, 1998 prescribing a Model
Calendar for DPCs in order to ensure that DPCs are
convened in advance and approved select panels are
prepared well before commencement of the relevant
vacancy years. All Ministries/Departments were also
requested vide D.O. letter of even number, dated March,

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29, 2000 of Secretary (Personnel) for strict compliance of
the instructions so as to achieve the desired objectives of
timely convening of DPCs/preparation of approved select
panels within the prescribed time-frame. Despite repeated
communications to this effect, some of the
Ministries/Departments are yet to implement these
instructions. Non-adherence to the prescribed time-frame
is resulting in continued delay in convening DPCs. The
UPSC has, on several occasions in the past, brought this
note so satisfactory position to the notice of the
Department of Personnel and Training. This is indeed a
matter of serious concern for the Government. Hence, all
concerned authorities are once again counseled to ensure
adherence to the Model Calendar which has been devised
as a system-improvement measure. In case of non-
adherence to the prescribed time-frame, steps should be
taken to fix responsibility for the lapse in this regard.

2. Ministries/Departments are requested to give wide
circulation to these instructions to ensure strict adherence
to the time-schedule prescribed as per the Model
Calendar for DPCs.” (emphasis supplied)

5. It would thus be seen that in terms of the Model Calendar, issued by the
Department of Personnel and Training, since the vacancies in the cadre of Deputy
Commissioner (Crops) which arose in the year 2004 were carried forward to the
year 2005, the DPC should have been held between May to October, 2004, follow
up action on receipt of DPC Minutes was to be taken by November-December,
2004 and 31.12.2004 was the last date for approving the select panel. Had the
respondents maintained the time schedule prescribed in the Model Calendar, the
petitioner would have been considered for promotion to the post of Deputy

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Commissioner (Crops) by October, 2004 and had he been found suitable for
promotion, order of his promotion would have been issued by 31.12.2004.
6. The case of the petitioner before us is that since the Recruitment Rules did
not stipulate any particular date for holding DPC for promotion to the post of
Deputy Commissioner (Crops), it was mandatory for the respondent to follow the
time table prescribed in the Model Calendar, issued by DoP&T and he could not
have been deprived of his legitimate right for being considered to the promotion of
the aforesaid post merely on the account of delay on the part of the respondents in
convening the DPC. The learned counsel for the respondent, however, contended
that since no officer working in the feeder cadre was eligible for promotion in the
year 2004, they took a decision to amend the recruitment regulations, particularly
because they did not want to supersede the officer senior to the petitioner and had
they convened the DPC in terms of the Model Calendar, the inevitable consequence
would have been the non-promotion of the officer who was senior to the petitioner
in the feeder cadre. It was also contended by the learned counsel for the
respondent that since the Model Calendar does not have statutory force, the
petitioner has no right to seek promotion or even consideration of promotion in
terms of the time frame, specified in the calendar.
7. It has been contended by the learned Counsel for the petitioner that since the
law requires the vacancies existing on the date of amendment of the Rules have to

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be filled up in accordance with Rules as they stood prior to amendment and not in
accordance with the amended Rules, the respondents had no justification to
withhold convening of DPC on the ground that they were contemplating the
amendment of the Rules. In support of his contention the learned Counsel for the
petitioner has relied upon the decisions of Supreme Court in Y.V.Rangaiah v.
J.Sreenivasa Rao : (1983) 3 SCC 284 , which was referred in State of Rajasthan v.
R.Dayal And Others (1997) 10 SCC 419 .
8. In Y.V.Rangaiah (supra) , there was delay in preparation of the panel for
promotion. The Rules applicable in that case (Andhra Pradesh Registration and
Subordinate Service Rules) provided that list of approved candidates for promotion
would be prepared in the month of September every year and the instructions
issued by the Government emphasized that prompt preparation of panel was
essential for increasing administrative efficiency and also for filling up vacancies
without delay. The panel of approved candidates for promotion was required to be
prepared as on 01.09.1976 however, preparation of panel was delayed and it was
drawn up only in the year 1977 and by that time the Rules had been amended, as a
result of which the promotional chances of the respondents were adversely effected
and they were superseded by their juniors in the panel prepared in accordance with
the amended Rules. The Tribunal having ruled in favour of the respondents, the
matter was taken by the State to Supreme Court and it was contended that the list

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prepared in May, 1977, in terms of the amended Rules, was correct particularly
because the validity of the amendment had not been challenged by the respondents.
Rejecting the contention, Supreme Court inter alia held as under:
x x x Under the old rules a panel had to be
prepared every year in September. Accordingly, a panel
should have been prepared in the year 1976 and transfer
or promotion to the post of Sub-Register Grade II should
have been made out of that panel. In that event the
petitioners in the two representation petitions who ranked
higher than the respondents Nos. 3 to 15 would not have
been deprived of their right of being considered for
promotion. The vacancies which occurred prior to the
amended rules would be governed by the old rules and
not by the amended rules. It is admitted by counsel for
both the parties that henceforth promotion to the post of
Sub-Registrar Grade II will be according to the new rules
on the zonal basis and not on the State-wide basis and,
therefore, there was no question of challenging the new
rules. But the question is of filling the vacancies that
occurred prior to the amended rules. We have not the
slightest doubt that the posts which fell vacant prior to
the amended rules would be governed by the old rules
and not by the new rules.

In R.Dayal (supra) , Supreme Court referring to its decision in Rangaiah
(supra) held that as a necessary corollary, the vacancies that arose subsequent to
the amendment of the Rules, were required to be filled in accordance with the laws
existing on the date when the vacancies arose.
In P.Ganeshwar Rao And Others v. State of Andhra Pradesh And Others
1988 (Supp) SCC 740 , the Rules before they were amended prescribed that 37 ½

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% of the total number of vacancies (both substantive as well as temporary) to be
filled by direct recruitment. The amended Rules provided that only the substantive
vacancies, to the said extent, shall be filled in by direct recruitment. Rejecting the
contention that only the substantive vacancies in the above-referred ratio were to
be filled by direct recruitment, Supreme Court inter alia held as under:
It is clear from the Special Rules as they were in force
prior to the amendment on 28.4.1980 that it was open to
the State Government to fill 37-1/2 per cent of the
vacancies (both substantive and temporary) in the cadre
of Assistant Engineers by direct recruitment. It is also not
in dispute that during the years 1978 and 1979 the
position of the vacancies was such that it was permissible
for the State Government to appoint 51 Assistant
Engineers by direct recruitment. The only question which
has now to be considered is whether the amendment
made on 28.4.1980 to the Special Rules applied only to
the vacancies that arose after the date on which the
amendment came into force or whether it applied to the
vacancies which had arisen before the said date also. The
crucial words in the Explanation which was introduced
by way of amendment in the Special Rules on 28.4.1980
were "37-1/2 per cent of the substantive vacancies arising
in the category of Assistant Engineers shall be filled by
the direct recruitment". If the above clause had read "37-
1/2 per cent of the substantive vacancies in the category
of Assistant Engineers shall be filled by the direct
recruitment" perhaps there would not have been much
room for discussion. The said clause then would have
applied even to the vacancies which had arisen prior to
the date of the amendment but which had not been filled
up before that date. We feel that there is much force in
the submission made on behalf of the appellants and the
State Government that the introduction of the word
'arising' in the above clause made it applicable only to

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those vacancies which came into existence subsequent to
the date of amendment.

In N.T.Devin Katti And Others v. Karnataka Public Service Commission
And Others (1990) 3 SCC 157 , a notification dated 23.5.1975 was published
inviting applications for recruitment to 50 posts of Tehsildars . The notification
also gave details of the posts that had been reserved for various categories. The
Rules which were prevailing at that time were to apply to the appointments. A
select list was thereafter prepared making reservation in terms of the instructions
contained in Government Order dated 6.9.1969. The State Government refused to
approve the list on the ground that reservation should have been made in
accordance with the directions and procedure contained in a subsequent order
dated 9.7.1975. The Government directed preparation of a fresh list of successful
candidates by making reservations in terms of the subsequent order issued by it on
9.7.1975. The select list was revised accordingly. Since the names of the
appellants did not figure in the revised list they challenged the validity of the
Government order as well as the revised list. The petitions, filed by them were,
however, dismissed by Division Bench of High Court. Accepting the contention of
the appellants, Supreme Court inter alia held as under:
x x x x Where advertisement is issued
inviting applications for direct recruitment to a category
of posts, and the advertisement expressly states that

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selection shall be made in accordance with the existing
Rules or Government Orders, and if it further indicates
the extent of reservations in favour of various categories,
the selection of candidates in such a case must be made
in accordance with the then existing Rules and
Government Orders. Candidates who apply, and undergo
written or viva voce test acquire vested right for being
considered for selections in accordance with the terms
and conditions contained in the advertisement, unless the
advertisement itself indicates a contrary intention.
Generally, a candidate has right to be considered in
accordance with the terms and conditions set out in the
advertisement as his right crystalises on the date of
publication of advertisement, however he has no absolute
right in the matter. If the recruitment Rules are amended
retrospectively during the pendency of selection, in that
event selection must be held in accordance with the
amended Rules. x x x if the amended
Rules are not retrospective in nature the selection must be
regulated in accordance with the Rules and orders which
were in force on the date of advertisement.

In B.L.Gupta And Another v. M.C.D. (1998) 9 SCC 223 , the main
contention before Supreme Court was whether the vacancies, which had arisen
prior to amendment of the Rules, could only be filled as per the Rules as they stood
prior to amendment. Dealing with the contention, Supreme Court inter alia held as
under:
When the statutory rules had been framed in 1978, the
vacancies had to be filled only according to the said
Rules. The Rules of 1995 have been held to be
prospective by the High Court and in our opinion this
was the correct conclusion. This being so, the question
which arises is whether the vacancies which had arisen
earlier than 1995 can be filled as per the 1995 Rules. Our

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attention has been drawn by Mr. Mehta to a decision of
this Court in the case of N.T. Devin Katti v. Karnataka
Public Service Commission. In that case after referring to
the earlier decisions in the cases of Y.V. Rangaiah v. J.
Sreenivasa Rao, P. Ganeshwar Rao v. State of A.P. and
A.A. Calton v. Director of Education, it was held by this
Court that the vacancies which had occurred prior to the
amendment of the Rules would be governed by the old
Rules and not by the amended Rules. Though the High
Court has referred to these judgments, but for the reasons
which are not easily decipherable its applicability was
only restricted to 79 and not 171 vacancies, which
admittedly existed. This being the correct legal position,
the High Court ought to have directed the respondent to
declare the results for 171 posts of Assistant Accountants
and not 79 which it had done.

9. We are conscious of the view which has been taken by Supreme Court in
some other cases including Rajasthan Public Service Commission v. Chanan
Ram And Another (1998) 4 SCC 202 and a recent decision in Deepak Agarwal
And Another v. State of Uttar Pradesh And Others (2011) 6 SCC 725 . In
Rajasthan Public Service Commission (supra) , an advertisement was issued for
appointment to 23 posts of Assistant Director (Junior); the last date of submission
of applications was 31.12.1993. But on 28.12.1993, the State Government asked
the Rajasthan Public Service Commission, which was to undertake the recruitment
process, not to proceed with the recruitment because the relevant Recruitment
Rules were being amended. On 19.4.1995, the Rajasthan Government issued a
notification amending the relevant Rules. As a result of the amendment, the

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erstwhile post of Assistant Director (Senior) ceased to exist and in its place, came
the post of Assistant Director simplicitor. The said post after the amendment had
to be filled in by 100% promotion. The posts of Assistant Director (Junior) were
replaced by the newly created post of Marketing Officers, which were to be filled
up 50% by promotion and 50% by direct recruitment. A fresh advertisement was
thereafter issued by the Commission for recruitment of eligible candidates to fill up
26 posts in the newly created cadre of Marketing Officers. A Writ Petition was
filed in the High Court contending therein that the petitioner was entitled to be
considered in the light of the first advertisement, qua vacancies, which already
existed at that time and the amended Rules could not be pressed in service for
filling up those earlier vacancies. The learned Single Judge decided against the
petitioner, but, the Division Bench took a contrary view and held that the existing
vacancies were to be filled up as per the Rules which existed at the time when
those vacancies had occurred. Allowing the appeal filed by the Commission,
Supreme court inter alia observed that the old vacancies which were to be filled
pursuant to old Recruitments Rules, no longer existed after the amendment and
therefore there would be no occasion to fill up those vacancies by applying the
earlier Rules despite the fact that the existing vacancies were carried forward and
merged with further vacancies in the newly created posts of Marketing Officers.
The respondent before the Supreme Court relied upon the decision in Rangaiah

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(supra) in support of his contention that the old vacancies were to be filled in terms
of the Rules which existed at the time the vacancies had occurred. Rejecting the
contention, Supreme Court inter alia held as under:
x x x x The said decision obviously
cannot apply on the facts of the present case for two
reasons. Firstly, this is not a case of promotion but direct
recruitment to the advertised posts and secondly the
scheme of the A.P. Rules considered by the Court in that
case cast a statutory duty and obligation on the part of the
appointing authority to prepare panels of eligible
candidates year wise in connection with the vacancies
then existing and if they had failed in that statutory duty
and obligation they could legitimately be called upon to
carry out that obligation and while doing so for preparing
the panels for the earlier years the relevant rules then
existing had to be kept in view. But even apart from these
two distinguishing features one additional salient aspect
of the matter is that these panels were to be prepared for
filling up vacancies by promotion to the posts of Sub-
Registrars Grade II. The said posts continued to exist in
the cadre and the only question was how the vacancies in
the said existing posts had to be filled in by promotion by
preparing panels for the relevant years. As we have seen
earlier in the present case the old posts of Assistant
Directors (Junior) had ceased to exist. Therefore, there
remained no occasion for proceeding with recruitment to
such non-existing posts pursuant to the earlier stale and
infructuous advertisement of 05.11.1993

The Court also distinguished its decision in B.L.Gupta (supra) noting that in
that case the post in question was a promotional post, which had not ceased to exist
in the hierarchy of service echelon. The Court was of the view that its earlier

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decision in Jai Singh Dalal v. State of Haryana 1993 (Supp) 2 SCC 600 , where
the Court had held that when the special process of recruitment had not been
finalized and culminated into select list the candidates did not have any right to
appointment, would squarely apply. In taking this view Supreme Court also relied
upon its earlier decisions in State of M.P. v. Raghuveer Singh Yadav (1994) 6
SCC 151 and J&K Public Service Commission v. Dr. Narinder Mohan (1994) 2
SCC 630 .
In Dr. K.Ramulu And Another v. Dr. S.Suryaprakash Rao And Others
(1997) 3 SCC 59 , Government of Andhra Pradesh decided in the year 1988 to
amend the Animal Husbandry Service Special Rules, 1977 and also took a
conscious decision not to fill up any vacancy till the amendment. The Rules of
1977 were repealed by Andhra Pradesh Animal Husbandry Service Rules, 1996.
The Government had not prepared any panel for promotion to the post of Assistant
Director for the year 1995-96 in accordance with the 1977 Rules. The
Administrative Tribunal, on the application of the respondent before the Supreme
Court, directed the Government to prepare and operate such a panel. The Rules of
1977 provided for preparation of a list of approved candidates during the month of
September every year, on the basis of estimated vacancies. The panel was valid
till the end of succeeding year or till the preparation of a new panel, whichever be
earlier. It was not necessary to prepare the panel if the vacancies were not

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available for a particular period or if the Appointing Authority did not consider it
necessary. Relying upon its earlier decisions in State of Bihar v. Mohd.
Kalimuddin (1996) 2 SCC 7 and Union of India v. K.V.Vijeesh (1996) 3 SCC
139 , Supreme Court held that for the reasons germane to the decision, the
Government is entitled to take a decision not to fill up the existing vacancies as on
relevant date. Dealing with Rangaiah case (supra) Supreme Court noted that in
that case the Government had merely amended the Rules and applied the amended
Rules without taking any conscious decision not to fill up the existing vacancies
pending amendment of the Rules on the date the new Rules came into force
whereas in the case before it the Government had taken a conscious decision not to
make any appointment till the amendment of the Rules. In Deepak Agarwal
(supra) the appellants therein challenged the notification whereby they had been
rendered ineligible to the promotion of Deputy Excise Commissioner as well as the
subsequent notification whereby the private respondents were promoted as Deputy
Commissioners. Relying upon Rangaiah case (supra) , P.Ganeshwar Rao (supra)
and R.Dayal (supra) they contended that the vacancies which stood prior to the
issue of notification are to be filled under the Rules as they existed prior to
amendment made on 17.5.1999. The justification given for the amendment in the
case was that the Government had taken a conscious decision to exclude the
Technical Officers and Statistical Officers from the feeder cadre as they were not

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fit for the post of Deputy Excise Commissioner because of their peculiar
qualifications, duties, responsibilities and work experience. However, to
compensate them for loss of promotion, the pay-scales of these two posts were
upgraded to the level of Deputy Excise Commissioner. Relying upon its earlier
decisions particularly in K.Ramulu (supra) and Rajasthan State Public Service
Commission (supra) as also its earlier decision in Jai Singh Dalal (supra) ,
Supreme Court rejected the contention of the appellants.
10. In Ashok Johri And Another v. NDMC And Others LPA No. 739/2003
decided on 1.3.2005, a learned Single Judge of this Court passed an order directing
NDMC to fill up existing vacancies of Executive Engineer (Civil) in accordance
with old Rules in force as the new Rules had not come into force. It was noticed
that NDMC had not taken any conscious policy decision to follow the proposed
amendment when it passed a resolution deciding to fill up the existing vacancies
and NDMC was not the final authority to amend the Rules, which required
approval of Central Government. Relying upon Rangaiah (supra) and
P.Mahendra v. State of Karnataka (1990) 1 SCC 411 and after taking into
consideration the decisions of Supreme Court in Ramulu (supra) as also the
decision of Supreme Court in Vimal Kumari v. State of Haryana (1998) 4 SCC
114 , it was held by a Division Bench of this Court that the vacancies, which had
arisen prior to the coming into force of the new Rules, were to be filled up under

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the old Rules whereas the vacancies that had occurred thereafter were to be filled
up under the new Rules.
9. The propositions of law which emerge from a combined perusal of the
above-referred decisions can be summarized as under:-
(a) The general rule is that the vacancies which exist on the date of amendment
of rules have to be filled up in accordance with the rules, as they stood prior
to amendment, provided the amendment is not retrospective. If the
amendment made in the rules is retrospective, even the vacancies which
exist on the date of amendment are also required to be filled up as per
amended rules;
(b) The Competent Authority may take a decision to amend the rules and fill up
all the vacancies in accordance with the amended rules. If such a decision is
taken by the Competent Authority, that would justify the delay in making the
promotion, against the existing vacancies. In such a case, all the vacancies,
including the vacancies which existed on the date of amendment of the rules
can be filled up as per the amended rules;
(c) The decision to amend the rules needs to be taken by the authority which is
competent to amend the rules and if such a decision is taken by some
authority other than the authority competent to amend the rules and the rules
are later amended, the vacancies which existed on the date of amendment of

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the rules have to be filled up in accordance with the rules as they stood prior
to amendment.
10. In the case before this Court, there has been no amendment of the rules.
Therefore, the question which arises for our consideration is as to whether any
decision was taken by the rule making authority to amend the rules and whether a
decision was taken by the Competent Authority to fill up the existing vacancies, in
accordance with the proposed amended rules. If such a decision is shown to have
been taken by the authority competent to amend the rules, there would be
justification for not filling up the existing vacancies and in that case, it may be
immaterial if the amendment ultimately does not materialize. The justification
given by the respondent for not making appointment for the vacancy year, 2005 is
primarily set out in para 5 and 21-22 of the counter-affidavit, which read as under:-
“That two posts of Deputy Commissioner (Crops)
fell vacant w.e.f. 15.02.2004 & 04.04.2004. As
per DOP&T instructions, the date for determining
eligibility of officers for promotion is to be taken
as the first day of the crucial year of vacancy i.e.
01.01.2004 (ANNEXURE R-III). The applicant
had not completed 5 years regular service as on
01.01.2004 and hence, he was not eligible for
promotion against the aforesaid posts during 2004.
Separately, the proposal for revision of the existing
Recruitment Rules for the post was under process
wherein different agencies were involved. Under
the existing RRs Educational Qualification
prescribed for Direct Recruits for the post of
Deputy Commissioner (Crops) was applicable in

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promotion also. The senior most AC (Crop) in the
feeder grade was not possessing the EQ though he
had completed the requisite length of service.
Thus, he was not eligible. In the proposed revised
RRs, the condition of EQ was not being provided
for promote. Hence, DPC proposal against the
aforesaid 2 posts remained suspended during 2005.
However, since the proposed revision of
Recruitment Rules is taking time, the vacancies of
2004 have been carried forward to the Recruitment
year 2005 and a proposal of holding the DPC on
the basis of existing Recruitment Rules is being
sent to UPSC. Meanwhile, the applicant has been
given ad-hoc promotion to the grade of Deputy
Commissioner (Crops). He will be given regular
promotion after DPC is held.

That the contents of para under reply are wrong
and denied. It is submitted here that the applicant
had not completed 5 years regular service as on
01.01.2004. The applicant was not eligible for
promotion against the aforesaid posts during 2004.
Separately, the proposal for revision of the existing
Recruitment Rules for the post was under
consideration wherein different agencies were
involved and EQ prescribed for Direct Recruits
was not proposed to be made applicable to
promote. Therefore, it was considered appropriate
to send the proposal on revision of Recruitment
Rules.”

11. Thus, this is not the case of the respondents that a decision was taken by the
authority competent to amend the rules, to amend the rules. In fact, the counter-
affidavit does not even disclose as to who was the authority competent to amend
the rules. This is also not the case of the respondents in the counter-affidavit that

W.P(C) 5549/2007 Page 22 of 40


the Competent Authority had taken a conscious decision to fill up the vacancies,
which existed at the time of taking such a decision, in accordance with the
proposed amended rules. The respondents do not even say in the counter-affidavit
that any decision had been taken to fill up the existing vacancies in accordance
with the proposed amended rules. The only averment in this regard is that a
proposal was mooted for revision of the existing rules and that proposal remained
under consideration. As per the proposal, the condition of Educational
Qualification which had been prescribed for Direct Recruits was not to be
prescribed for promotees. The proposal to amend the rules cannot be treated at par
with a firm decision by the authority competent to amend the rules, to carry out
amendment of the rules and a decision by the Competent Authority to fill up the
existing vacancies in accordance with the proposed amended rules. If no decision
was taken by the rule making authority to amend the rules and no decision was
taken by the Competent Authority to fill up the existing vacancies in accordance
with the proposed amended rules, there would be no justification for not convening
the DPCs to make recommendations for making promotions to the vacancies in
terms of the Model Calendar, issued by DOP&T vide its OMs dated 08.09.1998
and 13.10.1998. Merely a proposal by someone to amend the rules, without any
decision by the Competent Authority in this regard did not justify postponing the
promotion in terms of the Model Calendar issued by DOP&T.

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12. Now, we come to the contention of the respondents that the Model Calendar,
issued by DOP&T did not have statutory force and, therefore, their failure to
convene DPC for the vacancy year 2005 does not give any right to the petitioner to
seek promotion effective from a date prior to 04.10.2006, when he was actually
promoted. The learned counsel for the petitioner, in support of his contention that
the requirement to convene DPC and prepare a Select List in terms of the OMs
dated 08.09.1998 and 13.10.1998, is mandatory has relied upon Union of India
and others v. N.R. Banerjee and others , AIR 1997 SC 3761 , P.N.
Premachandran v. The State of Kerala and Ors. , (2004) I SCC 245 , Vinod
Kumar Sangal v. Union of India (UOI) and Ors. (1995) 4 SCC 246 , Union of
India (UOI) and Ors. v. Vipinchandra Hiralal Shah , (1996) 6 SCC 721 and the
decision of this Court in Union of India (UOI) v. Central Administrative
Tribunal , CW 7073/2001, decided on 25.09.2002.
In Vipinchandra Hiralal Shah (supra), the Court was dealing with a case
of promotion in terms of the Indian Administrative Service (Recruitment) Rules,
1954, which provided for appointment to the service by promotion from amongst
the substantive members of a State Civil Service. The promotions were governed
by The Indian Administrative Service (Appointment by Promotion) Regulations,
1955. Regulation 3 provided for constitution of a committee to make the selection.
Regulation 5(1) provided that the Committee shall ordinarily meet at intervals not

W.P(C) 5549/2007 Page 24 of 40


exceeding one year and prepare a list of such members of the State Civil Service as
were held by them to be suitable for promotion to the Service. When the Selection
Committee met in December 1986/January 1987, the vacancies for the years 1982
to 1986 were clubbed for the main purpose of making selections under Regulation
5. This was challenged by the respondent before the Supreme Court on the ground
that the Committee was required to meet every year to prepare a Select List for the
vacancies of each year. The Tribunal directed the appellants to prepare Select List
from year to year, from 1980 to 1986 and thereafter on the basis of vacancies from
year to year without clubbing the vacancies in any particular year and as a part of
the exercise to consider the case of the respondent for promotion and also to
appoint him in case his name was to figure in the Select List and there was a
vacancy with all consequential benefits. The decision of the Tribunal was
challenged before the Supreme Court. Relying upon its earlier decision in Union
of India v. Mohan Lal Capoor (1973) 2 SCC 836 and Syed Khalid Rizvi v.
Union of India (1993) 3 575, Supreme Court held that in view of the provisions
contained in Regulation 5, unless there was a good reason for not doing so, the
Selection Committee was required to meet every year for the purpose of making
the selection from amongst the State Civil Service officers who fulfilled the
conditions regarding the eligibility on the first day of the January of the year in
which the Committee met. It was held that failure on the part of the Selection

W.P(C) 5549/2007 Page 25 of 40


Committee to meet during a particular year would not dispense with the
requirement of preparing the Select List for that year and if for any reason the
Committee is not able to meet during a particular year, the Committee when it
meets next, should, while making the selection, prepare a separate list for each
year, keeping in view the number of vacancies in that year after considering the
State Civil Service officers who were eligible and who fell within the zone of
consideration for selection in that year. The Court specifically held that since the
Committee did not meet during the years 1980 to 1985 and when it met in
December 1986/January 1987, a consolidated Select List was prepared for the
vacancies of the years 1980 to 1986, there was thus a failure to comply with the
mandatory requirement of Regulation 5 of the Regulations. (Emphasis supplied).
The Court, however, did not disturb the appointments of other State Civil Service
officers made on the basis of the Select List of December 1986/January 1987 and
directed that the vacancy against the respondent will have to be adjusted against
the subsequent vacancies falling within the promotion quota.
In N.R. Banerjee (supra) , certain vacancies were likely to arise in the
Financial Year 1994-95. A proposal for filling up the ensuing vacancies in
Ordnance Factory Board was sent to the Ministry on 22.12.1993. The ACRs of the
eligible candidates were approved on 16.08.1994 and the DPC was held on
15.03.1995 to fill up the four vacancies which were likely to arise in the year 1994-

W.P(C) 5549/2007 Page 26 of 40


95. The Tribunal, however, directed the Government to ignore the ACRs for the
year 1994. It also directed the DPC to be constituted as on 01.04.1994. This was
challenged by the Government before the Supreme Court and it was contended that
crucial date for DPC should be April or May, 1995, because the DPC will have to
consider the ACRs for the year, 1994. Rejecting the contention, the Supreme
Court, inter alia , held as under:
“Though, prima facie, we are impressed with the
arguments of Shri Altaf Ahmed, on deeper probe
and on going through the procedure laid by the
Ministry of Personnel and Training, we find no
force in the contention. Preparation of the action
plan for consideration by the D.P.C. of the
respective claims of the officers within the Zone
and thereafter for setting in motion the preparation
of penal on year wise basis is elaborately
mentioned. In case of their failure to do so, what
further procedure is required to be followed is also
indicated in the rules. It thereby manifests the
intention of the rule-maker that the appellant-
Government should estimate the anticipated
vacancies, regular vacancies and also vacancies
arising thereafter due to various contingencies and
it should also get the A.C.Rs. prepared and
approved. It is also made clear that the D.P.C.
should sit on regular basis to consider the cases of
the eligible candidates within the zone of
consideration. The object is clear that the
Government should keep the panel ready in
advance so that the vacancies arising soon
thereafter may be filled up from amongst the
approved candidates whose names appear in the
panel.


W.P(C) 5549/2007 Page 27 of 40


D.P.Cs. should be convened every year, if
necessary, on a fixed date, i.e. 1st of April or May,
in the middle of the para, by way of amendment
brought on May 13, 1995, it postulates that very
often action for holding D.P.C. meeting is initiated
after the vacancy has arisen. This results in undue
delay in filling up of vacancies and causes
dissatisfaction among those who are eligible for
promotion. It may be indicated that regular
meeting of D.P.C. should be held every year for
each category of posts so that approved select
panel is available in advance for making
promotions against vacancies arising every year.
Under para 3.2, the requirement of convening
annual meetings of the D.P.C. should be dispensed
with only after a certificate has been issued by the
appointing authority that there are no vacancies to
be filled by promotion or no officers are due for
confirmations during the year in question. It
would, thus, be seen that D.P.Cs. are required to sit
every year, regularly on or before 1st April or 1st
May of the year to fill up the vacancies likely to
arise in the year for being filled up. The required
material should be collected in advance and merit
list finalised by the appointing authorities and
placed before the D.P.Cs. for consideration. This
requirement can be dispensed with only after a
certificate is issued by the appointing authority that
there are no vacancies to be filled by promotion, or
that no officers are due for confirmation, during
the year in question.

It is true that filling up of the posts are for clear or
anticipated vacancies arising in the year. It is
settled law that mere inclusion of one's name in the
list does not confer any right in him/her to
appointment. It is not incumbent that all posts may
be filled up. But the authority must act reasonably,

W.P(C) 5549/2007 Page 28 of 40


fairly and in public interest and omission thereof
should not be arbitrary.

The preparation and finalisation of the yearly
panel, unless duly certified by the appointing
authority that no vacancy would arise or no
suitable candidate was available, is a mandatory
requirement. If the annual panel could not be
prepared for any justifiable reason, year wise panel
of all the eligible candidates within the zone of
consideration for filling up the vacancies each year
should be prepared and appointment made in
accordance therewith.

In P.N. Premachandran (supra) , there was an administrative delay in
convening the DPC. The Government, therefore, made temporary promotions of
departmental candidates, pending convening of the DPC. The DPC was later
convened on 05.07.1984 and the promotions made from 1964 to 1980 were
regularized w.e.f. 1994. This was challenged by the appellant before the Supreme
Court in a writ petition before Kerala High Court. The writ petition was dismissed.
Dismissing the appeal filed by the writ petitioner, the Supreme Court, inter alia ,
observed as under:-
“It is not in dispute that the posts were to be filled
up by promotion. We fail to understand how the
appellant, keeping in view the facts and
circumstances of this case, could question the
retrospective promotion granted to the private
respondents herein. It is not disputed that in view,
of the administrative lapse, the Departmental
Promotion Committee did not hold a sitting from
1964 to 1980. The respondents cannot suffer

W.P(C) 5549/2007 Page 29 of 40


owing to such administrative lapse on the part of
the State of Kerala for no fault on their, part. It is
also not disputed, that in ordinary course they were
entitled to be promoted to the post of Assistant
Director's, in the event, a Departmental Promotion
Committee had been constituted in due time. In
that view of the matter, it must be held that the
State of Kerala took a conscious decision to the
effect that those who have been acting in a higher
post for a long time although on a temporary basis,
but were qualified at the time when they were so
promoted and found to be eligible by the
Departmental Promotion Committee at a later date,
should be promoted with retrospective effect.

In Central Administrative Tribunal (supra) , respondents 2 and 3, who
were working as SSO Grade became eligible for promotion as Principal Scientific
Officer, in the year 1990. Since no DPC was held to consider them for promotion,
they filed an OA wherein the Tribunal directed the respondents in the OA (the
appellants before Supreme Court) to consider the case of the applicants for
promotion expeditiously in accordance with the rules. The DPC was held pursuant
to the interim order passed by the Tribunal and respondent No. 4 alongwith another
person was appointed as PSO against the vacancy that has arisen in the year 1998.
The Tribunal vide subsequent order dated 06.06.1995 directed the respondent in
the OA to consider the case of the applicants for promotion strictly in accordance
with the extent rules/instructions on the subject in terms of its earlier order dated
24.04.1991. A DPC was subsequently held and respondents 2 and 3 were

W.P(C) 5549/2007 Page 30 of 40


provisionally appointed as PSOs vide order dated 19.8.1996. The OA was later
dismissed on 22.02.2000. A seniority list was circulated assigning the seniority of
respondents 2 and 3 from 1996. They, however, wanted seniority from the year
1990, for which year they were empanelled, on the ground that they were not
responsible for the delay in holding of DPC and further delay in implementation of
the decision of the DPC. Another OA was filed by them which was allowed
observing that DPC was required to be held every year and if delay was caused in
holding DPC, not because of the applicants or any other justifiable reason like the
stay order of a Court, etc., the respondents 2 and 3 could not be made to suffer. In
taking this view, the Tribunal relied upon the decision of the Supreme Court in
N.R. Banerjee (supra). Rejecting the writ petition, the Court, inter alia, held as
under:-
“When the department fails in its duty to hold
assessment board which are to meet every year, it
cannot take advantage of its own wrong.
Respondents No. 2 and 3, in instant case became
eligible for promotion to the next higher post of
director after rendering ten years as PSO although
they became eligible as PSO in 1990 and although
as per the Government's own directive assessment
board should have met that very year, the DPC was
held in 1996. If 1996 is granted as the year of
seniority, respondents No. 2 and 3 are bound to
suffer. On the other hand, had they been granted
promotion in 1990 they would have become
eligible. It is this hardship which is taken care of
by the Supreme Court in N.R. Bannerjee's case

W.P(C) 5549/2007 Page 31 of 40


(supra) while holding that in such cases the order
of eligibility should be treated as seniority.”

The Court, however, protected the seniority of respondent No. 4 who was
senior to respondents 2 and 3 and had been further promoted as director, whereas
respondents 2 and 3 were still PSOs.
In Vinod Kumar Sangal (supra) , no DPC meeting took place from 1979 to
1984. The appellant before this Court, in support of his contention that DPC was
required to meet every year, placed reliance on the OM dated 24.12.1980, issued
by the Government of India, Ministry of Home Affairs (Department of Personnel
and Administrative Reforms), which provided for meeting of DPC at regular
interval for preparation of Select List unless the Appointing Authority certified that
there were no vacancy to be filled during the year. It further provided that if the
DPC, for reasons beyond control, could not be held in any year, even though
vacancies arose during that year, the first meeting held thereafter should determine
the actual number of vacancies that arise in each of the previous years and the
actual number of regular vacancies proposed to be filled in the current year
separately and prepare a Selection List for each of the years starting with the
earliest year onwards. It further stipulated that DPC should consider in respect of
each of the years those officers only who would be within the field of choice with
reference to the vacancies of each year starting with the earliest year onwards. The

W.P(C) 5549/2007 Page 32 of 40


explanation given by the respondents for not holding DPC was the reorganization
of the department which was under process during that period. Supreme Court
was of the view that in view of the said OM, the DPC was required to make
separate selections for the vacancies for the years 1980, 1982 and 1983. Noticing
that DPC had bunched together all the vacancies for the years 1979 to 1985 which
had resulted in enlargement of the field of choice for the purpose of selection.
Supreme Court found the grievance of the appellant to be justified because had
separate selection been made for the vacancies which occurred in the years 1980,
1982 and 1983, the field of choice would have been much more restricted and the
appellant would have had better chances of being selected. The Supreme Court,
therefore, directed to convene a DPC, for considering the appellants for selection
against the vacancies which had occurred in the years 1980, 1982 and 1983, as per
OM dated 24.12.1980. It was further held that in case the appellant was selected
for such promotion against any of these vacancies, he would be regularly promoted
with all consequential benefits with effect from the date when six persons were
selected by the DPC in the year 1985 were promoted.
In S.K.Murti v. Union of India & Ors: WP(C) 14263/2004 decided by a
Division Bench of this Court on 5.10.2010, the Office Memorandum applicable to
the case provided in-situ promotion under Flexible Complementing Scheme to be
effected each year. The circular mandated that the assessment should be made

W.P(C) 5549/2007 Page 33 of 40


st st
well in advance keeping in view the crucial dates being 1 January and 1 July
with effect from which the Flexible Complementing Scheme in-situ promotions
had to be effected. The Office Memorandum also stipulated that no promotion
should be granted with retrospective effect. However, the Assessment Boards had
st st
to be constituted well in advance keeping the crucial dates of 1 January and 1
July of each year to effect promotions. It was held by this Court that the benefit of
in-situ promotion was required to be granted to the petitioner w.e.f. 1.1.1999 when
he became entitled for it instead of 19.9.2000, the date on which such promotion
was granted to him by the respondents. A Special Leave Petition being SLP
(Civil) CC 6864/2011 filed by the respondents before this Court, was dismissed by
the Supreme Court vide its order dated 2.5.2011. Dismissing the SLP, Supreme
Court inter alia held as under:
The respondent who was working as Scientist Grade-D in
the Botanical Survey of India became eligible for
promotion under FCS with effect from 1.1.1999.
However, on account of delayed convening of the
Departmental Review Committee/Selection Committee,
his promotion was delayed and by an order dated
20.10.2000, he was promoted with effect from 19.9.2000.

x x x x x

It is not in dispute that vacancies existed when the
Departmental Review Committee considered the case of
the respondent and other similarly situated persons for
promotion. It is also not in dispute that in terms of
paragraph 51.25 of the V Pay Commission

W.P(C) 5549/2007 Page 34 of 40


Recommendations, the Departmental Review
Committee/Assessment Board was required to meet
every six months i.e. in January and July and the
promotions were to be made effective from the date of
eligibility. Therefore, it is not possible to find any flaw
in the direction given by the High Court.

13. In the case before this Court, the Recruitment Rules are silent as to at what
intervals the DPC should meet and make recommendations for promotion against
existing/anticipated vacancies. We are not dealing with a case, where there is no
Rule or instruction, fixing a schedule for convening DPC and finalizing the
promotions. We have, before us, a case where instructions have been issued by the
Government, for making promotions in terms of a particular calendar. In our
opinion, in the absence of any rules to the contrary, the OMs issued by DoP&T on
the subject, from time to time, including the OM suggesting the Model Calendar
for DPCs, became applicable and, therefore, it was obligatory for the respondents
to adhere to the time schedule laid down in the Model Calendar circulated by
DoP&T, for making promotions against the vacancies occurring during the course
of a year. The OM, issued by DoP&T enjoined upon the respondents to initiate
action, in advance, to fill up the vacancies arisen during the course of the vacancy
year. The obvious purpose behind issue of the OMs is to ensure that the work of
the Government does not suffer due to the posts remaining vacant, without any
reasonable justification.

W.P(C) 5549/2007 Page 35 of 40


14. This is not the case of the respondents that OMs dated 08.09.1998 and
13.10.1998, issued by Government of India are not binding on them. The OMs,
which reflect the consistent policy of the Government, require all the
Ministries/Departments to take note of the instructions contained therein for strict
compliance so that the objective of convening DPC meeting and preparing
approved select panels as per the prescribed time-frame may be achieved. The
concern of the Government on account of delay in convening DPC was conveyed
to all the Ministries and Departments vide OM No. 22011/9/98-Estt.(D) dated
14.12.2000 and they were also directed that in case of non-adherence to the
prescribed time-frame, steps should be taken to fix the responsibility for the lapse
in this regard. Such instructions issued by the Government are meant for
compliance and not for being ignored in an arbitrary manner and unless repugnant
to the Recruitment Rules, they supplement the Recruitment Rules and, therefore,
have a binding force. The mandatory nature of the OMs can also be gathered from
the instruction to fix responsibility for non-adherence to the time schedule fixed
therein. We also take note of the view taken by Supreme Court in N.R. Banerjee
(supra) that in the absence of a certificate from the appointing authority that no
vacancy would arise or no suitable candidate was available, the preparation and
finalization of the yearly panel is a mandatory requirement.

W.P(C) 5549/2007 Page 36 of 40


15. We are unable to accept the contention that failure of the respondents to
adhere to the Model Calendar suggested in the OMs dated 08.09.1998 and
13.10.1998, would not entitle an employee to seek directions for considering him
for promotion as per the time schedule stipulated in the Model Calendar, even if
there is no justification for not convening the DPC in terms of the Model Calendar.
In our view, if the Department is able to justify the delay in convening the DPC as
per the schedule laid down in the Model Calendar, an employee would not be
entitled to seek a direction to consider him for promotion in terms of the time
schedule stipulated in the Model Calendar. But, if there is no explanation given by
the Department for not convening the DPC within the time stipulated in the Model
Calendar or the explanation given by the Department is not found acceptable, there
would be no justification for making the employees suffer merely on account of
inaction or delay on the part of the Department for not convening the DPC and
postpone his promotion till the DPC actually met. In our view, in such a case, an
employee is entitled to approach the Tribunal or the Court, as the case may be, for
a direction to the Department to convene DPC for the relevant vacancy year and in
case he is eligible and falls in the zone of consideration, to consider him for
promotion, in the year in which the vacancy against which he was eligible, arose.
It is true that no employee has no vested right for promotion, but, the respondents
cannot act arbitrarily and without any reasonable excuse defer the meeting of DPC

W.P(C) 5549/2007 Page 37 of 40


and thereby deprive the employee of his legitimate expectations for being
considered for promotion to a post to which he is eligible for being promoted. In
such a case, the Tribunal or the Court, as the case may be, ought to step in and
direct the respondents to convene DPC for the vacancy year and consider the
petitioner if otherwise eligible and falling in the zone of consideration for
promotion against the vacancies arise in the vacancy year. Any other view would
negate the policy of the Government to prepare the Select List well in advance
demoralize the employees and also result in the vacancies remaining unfilled
without any reasonable excuse.
16. In the case before us, admittedly, there were two vacancies in the cadre of
Deputy Commissioner (Crops) as on 01.01.2005. No decision was taken by the
rule making authority to amend the Recruitment Rules for the post of Deputy
Commissioner (Crops). No decision was taken by the appointing authority, to
withhold promotions against the vacant post of Deputy Commissioner (Crops) till
there was amendment to the Recruitment Rules. The impression we gather from
the counter-affidavit of the respondents is that though a proposal was mooted by
someone in the Department, to amend the Recruitment Rules, it was not approved
by the Competent Authority. Hence, in terms of the time schedule laid down in
OMs, the DPC, to make recommendations in respect of the vacancy year, 2005,
ought to have met by October, 2004 and the promotion ought to have been

W.P(C) 5549/2007 Page 38 of 40


finalized by 31.12.2004. Had the respondents adhered to the time schedule laid
down in the Model Calendar, the petitioner would have been considered for
promotion, for the vacancy year, 2005 sometime in the year 2004 and since he has
been found fit for promotion, had the DPC been held in the year 2004, he would
have been granted promotion w.e.f. 01.01.2005 which was the crucial date to
determine the eligibility for the vacancy year 2005.

17. The case before this Court does not involve any dispute with respect to
seniority in the cadre of Deputy Commissioner (Crops). No one has been either
promoted or directly appointed as Deputy Commissioner (Crops) between
1.1.2005, when the petitioner became eligible to be considered for promotion, and
26.6.2006, when he was actually promoted. Thus, promotion of the petitioner
w.e.f. 1.1.2005 will not adversely affect any other person nor will it disturb the
existing seniority. Had someone been appointed or promoted as Deputy
Commissioner (Crops) between 1.1.2005 and 26.6.2006, we might have been
inclined to protect his seniority, but, that is not the position in this case. We,
therefore, see no good reason for not giving benefit of promotion to the petitioner
w.e.f. 1.1.12005.
Conclusion
For the reasons stated hereinabove, the writ petition is allowed by directing
the respondents to treat the petitioner promoted as Deputy Commissioner (Crops)

W.P(C) 5549/2007 Page 39 of 40


w.e.f. 01.01.2005, against one of the two vacancies which had arisen in the year
2004 and which were carried forward to the vacancy year 2005.
In the facts and circumstances of the case, there shall be no order as to costs.

V.K.JAIN, J


BADAR DURREZ AHMED, J

FEBRUARY 28, 2012
bg/vn



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