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CASE NO.: Appeal (civil)  8058 of 2001

PETITIONER: Nirmal Chandra Sinha

RESPONDENT: Union of India & Ors

DATE OF JUDGMENT: 31/03/2008

BENCH: H. K. Sema & Markandey Katju

JUDGMENT: J U D G M E N T REEPORTABLE

CIVIL APPEAL NO. 8058 OF 2001 WITH CIVIL APPEAL NO. 8059 OF 2001 Union of India & Ors.                           ..                       Appellant (s)         -versus- Nirmal Chandra Sinha                            ..                      Respondent (s)

MARKANDEY KATJU, J.

1.      These two connected appeals have been filed against the impugned  judgment of the Andhra Pradesh High Court dated 14.12.1999 in Writ  Petition No. 25555 of 1998. 2.      Heard learned counsel for the parties and perused the record.

3.      Appellant Nirmal Chandra Sinha belongs to the Indian Railway  Service of Mechanical Engineers (IRSME) having been appointed on  2.5.1958.  When his turn came for consideration for promotion as General  Manager, he was working as Chief Mechanical Engineer of Southern  Eastern Railway.  He was promoted to the post of General Manager on  29.11.1996.  He claimed notional promotion w.e.f. 13.3.1996 with  consequential benefits.   His O.A. was rejected by the Central  Administrative Tribunal, but against that order he filed a writ petition which  was partially allowed by the High Court.  

4.      Against the aforesaid judgment of the High Court appeals were filed  both by appellant Nirmal Chandra Sinha  as well as the Union of India.      

5.      In the appeal filed by appellant Nirmal Chandra Sinha, the ground  taken was that the High Court partially allowed the writ petition by giving  him notional promotion as General Manager w.e.f. 13.3.1996 with  consequential benefits, but the High Court has wrongly rejected his prayer  that he should be senior to the contesting private respondent Nos. 3 & 4.  On  the other hand, in the appeal filed by the Union of India it was alleged that  the High Court wrongly directed that appellant Nirmal Chandra Sinha  should be notionally promoted as General Manager w.e.f. 13.3.1996 with  consequential benefits.

6.      We are of the opinion that the appeal of appellant Nirmal Chandra  Sinha being Civil Appeal No. 8058 of 2001 deserves to be dismissed while  the appeal filed by the Union of India being Civil Appeal No. 8059/2001  deserves to be allowed.     

7.      It has been held in a series of decisions of this Court that a promotion  takes effect from the date of being granted and not from the date of

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occurrence of vacancy or creation of the post vide Union of India and  others vs. K.K. Vadera and others 1989 Supp (2) SCC 625,  State of  Uttaranchal and another  vs.  Dinesh Kumar Sharma 2007 (1) SCC 683,  K. V. Subba Rao  vs.  Government of Andhra Pradesh 1988(2) SCC 201,  Sanjay K. Sinha & others  vs.  State of Bihar and others 2004 (10) SCC  734 etc.

8.      Learned counsel for appellant Nirmal Chandra Sinha, however, relied  on a decision of this Court in Union of India  vs.  B.S. Agarwal and  another 1997 (8) SCC 89.  We have carefully perused the decision and we  are of the opinion that the said decision is distinguishable.  In that case the  facts were that, under the relevant rule for promotion as General Manager it  was necessary to have at least two years’ tenure on the lower post.  The  respondent did not actually have two years’ tenure, yet this Court held that  he was eligible for promotion since he had been empanelled and the vacancy  on which he should be promoted had occurred before two years of his  consideration for promotion.   

9.      In our opinion, the aforesaid decision in Union of India vs. B.S.  Agarwal (supra) was given on the special circumstances of that case and on  humanitarian considerations, but it cannot be said to be a precedent for other  cases.  When the rule requires two years’ actual service in the lower post  before a person can be considered for promotion as General Manager, that  rule cannot be violated by considering a person who has not put in two years’  service in the lower post.  Moreover, in the aforesaid decision in Union of  India vs. B.S. Agarwal (supra), the respondent had not actually been  promoted as General Manager, but he only claimed that he was eligible to be  considered for promotion as General Manager.  This fact also makes the  aforesaid decision distinguishable.   

10.     In the present case, appellant Nirmal Chandra Sinha was promoted as  General Manager on 29.11.1996, but he claims that he should be deemed to  have been promoted w.e.f. 13.3.1996 with consequential benefits.  We are  afraid this relief cannot be granted to him.  It is settled law that the date of  occurrence of vacancy is not relevant for this purpose.  

11.     For the reasons given above, the impugned judgment is set aside.  Civil Appeal No. 8058 of 2001 is dismissed and Civil Appeal No. 8059 of  2001 stands allowed. There shall be no order as to costs.