The Lt.Governor And ORS v. Shri. Arun Kumar And ORS
IN THE HIGH COURT AT CALCUTTA
[ CIRCUIT BENCH AT PORT BLAIR ] *** WP.CT/37/2025 The Lieutenant Governor and others Vs.
Shri Arun Kumar and others Mr. Rakesh Kumar ... for the petitioners Mr. Mohammed Tabraiz ... for the respondents October 28, 2025 [SR] Item No.2 This application has been filed challenging an order dated February 21, 2025 passed in OA/351/50/2023, by the Central Administrative Tribunal, Kolkata Bench (Circuit at Port Blair). By the order impugned, the learned Tribunal directed the petitioners to grant notional benefit of promotion to the respondent, in the post of Executive Engineer (Civil) with effect from January 01, 2015 as per recommendation of the UPSC for the Assessment Year 2015-16, with all consequential benefits, within a period of two months from the date of receipt of the order.
Aggrieved by the said order, the Administration has preferred the application.
Mr. Rakesh Kumar, learned advocate for the petitioners has submitted that the learned Tribunal erred in directing retrospective notional promotion in favour of the respondent. In view of the prevalent Office Memorandum dated April 10, 1989, issued by the Ministry of Personnel, Public Grievances and Pension, Government of India, specifically paragraph 6.4.4.
thereof, the order suffers from serious illegality. The said paragraph provides that while promotions would be made in order of the consolidated select list, such promotions would have only prospective effect, even in cases where the vacancies would relate to earlier years.
According to Mr. Rakesh Kumar, the Departmental Promotion Committee (DPC) assessed the eligibility of the candidates for promotion, including that of the respondent on on September 02, 2019. Thus, the question of granting notional promotion to the respondent from 2015 was in violation of the Office Memorandum. The promotion was rightly given from December 16, 2019. Mr. Kumar further submits that the respondent and some others were assigned the Current-DutyCharge of Executive Engineer (Civil), by an office order dated July 10, 2012. The designation of the respondent continued to be Assistant Engineer (Civil).
It was specifically stated in the said office order that the officers would not be entitled to either any financial benefit for rendering services as Current-DutyCharges of Executive Engineer (Civil) or to the benefit of seniority towards promotion. Accordingly, the respondent could not claim any benefit for having discharged his duties as Executive Engineer (Civil). He was only officiating in the post, but remained an Assistant Engineer (Civil) insofar as rank/cadre and his pay band was concerned.
The vacancies may have arisen in 2014, 2015 and 2016, however, according to the Memorandum dated April 10, 1989, the said promotional post could not be filled up automatically
from the eligible candidates until and unless a recommendation was made by the DPC. The DPC met only in 2019, and as such, irrespective of the date of origin of the vacancies in the promotional post of Executive Engineer (Civil), the date of promotion should be from the time of recommendation by the DPC.
Reliance has been placed on a decision of the Hon'ble Apex Court in the matter of "Bihar State Electricity Board and Others vs. Dharamdeo Das", passed in Civil Appeal No.6977 of 2015, decided on July 23, 2024, in support of the contention that there could not be any retrospective promotion, only because the vacancy had arisen in the promotional post earlier and the candidate had completed the required years of service by then.
Further attention of this Bench has been drawn to the letter dated September 04, 2019 written by the Under Secretary of the Union Public Service Commission to the Chief Secretary, Andaman and Nicobar Administration. The said letter also reiterated that promotions would have only prospective effect, even if the vacancies which arose pertained to previous years. Mohammed Tabraiz, learned advocate for the respondent submits that the Union Public Service Commission had filed a reply in the proceeding before the learned Tribunal and had specifically contended that the DPC, for considering promotion to the post of Executive Engineer (Civil), was held in the UPSC on September 02, 2019, for the vacancy years 2014-15 to 2019. The respondent was also considered in the said DPC and he
was recommended for promotion against the vacancy for the year 2015-16.
According to the UPSC, the respondent was entitled to be promoted with effect from January 01, 2015 as he was already holding and discharging his duties in the post of Executive Engineer (Civil) with effect from July 10, 2012. The belated promotion with effect from December 16, 2019, according to the UPSC, was attributable to the delay in holding the DPC. It was the categorical statement of the UPSC, that the respondent should not be deprived of his legitimate right for promotion from the date of his entitlement i.e. January 01, 2015 as he was considered and recommended for the year 2015-16. Reference is made to another Office Memorandum dated September 08, 1998, issued by the Ministry of Personnel, Public Grievances and Pensions, Government of India. Paragraph 3.
1 of the said Memorandum categorically provides that a time schedule for convening DPCs should be prepared so that the DPCs can be held sufficiently in advance, much before the vacancies would actually arise for a particular year. The rationale behind such provision has also been explained in the said paragraph. A model calendar was also provided in aid of such requirement.
Mr. Tabraiz, submits that both the Office Memoranda should be read together and not in isolation. Only because of the Office Memorandum of 1989, would be beneficial to the respondent in a particular case, the Office Memorandum of 1998, which is a subsequent one and
more detailed, cannot be ignored. Both of them should be given equal weightage.
They are both recommendations as to the mode and manner in which the DPC should function and as such a holistic approach should have been taken by the petitioners while considering the case of the promotion of the respondent.
We have heard the learned advocates for the respective parties.
The respondent was initially appointed as an Assistant Engineer (Civil) by an order dated February 10, 2005. He was confirmed in the said post vide order dated February 09, 2009 with effect from February 10, 2007. Subsequently, Recruitment Rules for the post of Executive Engineer (Civil) was notified. The respondent was assigned current duty charge for the post of Executive Engineer (Civil) by an order dated July 10, 2012. On April 17, 2014, the Recruitment Rule for the post of Superintending Engineer was notified.
The DPC recommended the name of the respondent for promotion to the post of Executive Engineer (Civil) on September 02, 2019, but against vacancies for the year 2015-2016. Thus, according to the DPC, the respondent was eligible to be promoted to the post of Executive
Engineer (Civil) against the vacancy which arose in 20152016. Although, the DPC was held in 2019, the case of the respondent is vastly different from the situation described in paragraph 6.4.4 of the Office Memorandum dated April 10, 1989.
Paragraph 6.4.4 of the Memorandum dated April 10, 1989 deals with situations in which the eligibility of being promoted are assessed by the DPC at a belated stage, although there were existing vacancies prior to the holding of DPC. Meaning thereby, had the respondent continued to be an Assistant Engineer (Civil) and was discharging the duties of Assistant Engineer (Civil) in 2019, he could not claim a retrospective promotion from 2015 only because there was a vacancy in that post and he had otherwise fulfilled the requisite criteria for promotion. In this case, from 2012, the respondent was already discharging duties as Executive Engineer (Civil). Had the DPC been held on time, he would be promoted to the said post of the Executive Engineer (Civil) in 2015 itself. The UPSC had also opined and had sworn an affidavit before the learned Tribunal to such effect. The relevant paragraphs of such reply are quoted below.
"5.1 That a DPC for considering promotion to the post of Executive Engineer (Civil) was held in UPSC on 02.09.2019 for the vacancy years 2014-15 to 2019. The applicant was also considered the said
DPC and he was recommended for promotion against the VY 2015-16.
5.2. That he was entitled to be promoted with effect from 01.01.2015 due to the fact that he was holding and discharging the post of EE(Civil) on current duty charges with effect from 10.07.2012, however, he was granted promotion to the post of EE(Civil) w.e.f 16.12.2019 due to delay in holding the DPC and he should not be deprived of his legitimate right for promotion from the date of his entitlement i.e. 01.01.2015 as he was considered and recommended for the VY 2015-16."
It was the categorical statement of the UPSC that only because the DPC's assessment was belated, the respondent could not be deprived of his promotion and the DPC itself had found him eligible for promotion from 2015, against the vacancy position of 2015-2016. This is not a case where the respondent has been allowed notional promotional benefit in respect of an earlier vacancy on the ground that such vacancy was available, but the DPC was not held. Hence, the respondent was already functioning as the Executive Engineer (Civil) and such post was available, but due to the delay on the part of the petitioners, DPC was not convened and he was deprived of promotion. The DPC had found him eligible for such promotion from 2015.
We appreciate the submissions of Mr.Tabraiz with regard to the applicability of the Office Memorandum of 1998. It provides that the DPCs should be convened in
advance, on the basis of anticipated vacancies for a particular year. The relevant paragraph is quoted below: "3.1 Keeping the aforesaid objective in view, it has been considered imperative to provide for a timeschedule for convening DPCs not only in time but in sufficient advance also so as to uitilise the prepared panel as and when the vacancies arise during the course of the vacancy year. For practical reasons, it is also considered desirable to have separate timeschedules for cases requiring approval of the Appointments Committee of the Cabinet and cases which do not require such approval.
Accordingly, in order to complete all required action, including the approval of the competent authority, well in time (before the commencement of the panel or vacancy year), the administrative action for convening DPCs, in the cases requiring approval of the ACC (ACC cases), could, as such, be initiated at least eight and a half months before the commencement of the vacancy year and, similarly, DPCs in such cases could be held at least four months before the commencement of the vacancy year. This means that there would be a clear period of the first three and a half months of the year immediately preceding the vacancy/panel year available for completion of the ACRs etc., followed by another four and a half months' time for holding DPCs.
The next one month could be devoted to the post-DPC follow-up administrative action by the administrative Ministry Department. The final three months' period prior to the commencement of the vacancy year could be left for approval of the Competent Authority (the ACC)."
In this case, the authority approached the UPSC belatedly in 2018 and as such the DPC was convened in 2019 in respect of all vacancies which arose between 20142015 to 2019. The delay caused by the petitioners cannot result in deprivation of the promotional avenue of the respondent, more so, because the belated promotion from December 16, 2019 will hinder and curtail the future
promotional avenue of the respondent in the post of Superintending Engineer.
The decision cited by Mr. Kumar in the case of Bihar State Electricity Board and others vs. Dharmdeo Das (supra) is not applicable, inasmuch as, the ratio of the said judgment was that, only because a candidate had completed a particular number of years, he would not become automatically entitled to promotion in the next higher post. No employee could claim to be promoted to the next higher post merely on the basis of minimum qualifying service. In the said case, a resolution dated December 26, 1991, prescribing a minimum qualifying service for promotion of an employee from one grade to another, in the Bihar State Electricity Board, was being considered.
Coming to the order which has been impugned before this Bench, we find that the Tribunal appreciated the fact of the case, the submissions of the parties and arrived at a conclusion that the respondent should be granted notional promotion from 2015 with consequential benefit. The Tribunal also considered that a revised proposal was made as per the observations of the Hon'ble Lieutenant Governor, Andaman and Nicobar Islands, to the Deputy Secretary, APWD, A & N Administration, Port Blair. Yet the case was not considered. The case was rejected on
the basis of paragraph 6.4.4. of the O.M dated April 10, 1989, whereas, the learned Tribunal found that the UPSC in their reply had categorically supported the case of the respondent.
It was averred by the UPSC that the DPC for considering the promotion to the post of Executive Engineer (Civil) was convened in the UPSC on September 02, 2019, for the vacancy years 2014-15 to 2019. The respondent was considered and recommended for promotion against the vacancy year 2015-16. As per the UPSC, the respondent was entitled to be promoted with effect from January 01, 2015, owing to the fact that he was already discharging the duties against the post of Executive Engineer (Civil) on current duty charge, with effect from July 10, 2012. It was further stated by the UPSC that the respondent was granted promotion to the post of Executive Engineer (Civil) with effect from December 16, 2019, due to the delay in convening of DPC and he should not be deprived of his legitimate right of promotion from the date of his entitlement i.e January 01, 2015.
The learned Tribunal explained the method of promotion as per the 1989 memorandum. The vacancy position has been reflected in the said order, as per the assessment in the UPSC.
Admittedly, the respondent was considered against the assessment year 2015-2016 along with the other nine other candidates. A panel was prepared for Degree Holders and the name of the respondent was listed at serial no.2. The panel for the year 2015-2016 consisted of Mr.U.K.Singh, Mr.Arun Kumar, and Mr Biju Verghese. The next promotional post of Executive Engineer (Civil) is the post of Superintending Engineer (Civil). Modalities of promotion to the post of Superintending Engineer (Civil) was notified as per the recruitment rules of 2014. There are four sanctioned posts and the posts are to be filled up by promotion from the Executive Engineers (Civil), in the Pay Band-3, with ten years regular service in the grade, provided they possessed a degree in engineering from a recognized university.
Thus, the belated promotion from 2019 would, in our opinion, curtail the 10 years regular service of the respondent in the post of Executive Engineer (Civil) and he would be deprived from promotion to the post of Superintending Engineer (Civil) even if he is otherwise eligible. This is an important aspect. The petitioner already had experience by officiating in the said post from 2012. The tribunal was of the view that when the respondent was recommended at Serial No.2, for the year 2015-16, he should be given notional promotion.
In our opinion, had the DPC been convened as per the Office Memorandum of 1998 or at the time when the vacancy arose, the respondent would have been promoted to the post of Executive Engineer (Civil) against the vacancy which arose in the year 2015-2016.
Here, the UPSC which convened the DPC, itself, supported the case of the respondent before the learned Tribunal with regard to grant of promotion from 2015 as such, we do not find any illegality in the decision of the learned Tribunal.
The writ application is dismissed accordingly. The order of the Tribunal is upheld. The respondent has been given notional benefit from 2015.
The time for compliance of the order of the Tribunal as directed and quoted herein below is extended by a further period of two months from the date of communication of this order.
"16. In such view of the mater, the respondents are directed to grant the applicant notional benefit of promotion to the post of Executive Engineer (Civil) w.ef 01.01.2015 as per recommendation of the UPSC for the Assessment Year 2015-16 with all consequential benefits, within a period of two months from the date of receipt of a copy of the order." All parties to act on a server copy of this order. ( Shampa Sarkar, J. ) ( Ananya Bandyopadhyay, J. )