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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: K.B.  RAJORIA

DATE OF JUDGMENT:       28/03/2000

BENCH: M.J.Rao, Ruma Pal

JUDGMENT:

     RUMA PAL, J.

     Leave granted.

     The  undisputed  facts  of  this  case  are  that  the appellant  No.   4  was notionally promoted to the  post  of Additional  Director  General  (Works) of the  Public  Works Department  with  effect  from  22nd  February,  1995.   The notional  promotion  was given by an order dated 10th  June, 1998  in  terms of instructions contained in the DPTs  O.M. No.22011/05/86  Estt.  D, dated 10th April, 1989 as  amended from  time to time.  In the meanwhile on 1st July 1997,  the post of Director General,(Works) CPWD fell vacant.  The mode of  selection to the post has been laid down in the  Central Public   Works  Department  (Director   General  of   Works) Recruitment  Rules,  1986, which were amended on 23rd  March 1992  by  the  Central  Public  Works  Department  (Director General  of Works) Recruitment (Amendment) Rules, 1992.  The amendment  came into force on 4th April 1992.  The  Schedule to the Rules ( referred to hereinafter as the said Schedule) provides  that  the  post of Director General (Works)  is  a selection  post  to be filled up by promotion from  amongst, inter-alia,  Additional  Director General (Works) with  two years  regular service in the grade.  Since  Krishnamoorti had  been  granted  notional  promotion   to  the  post   of Additional Director General on 10.6.98 w.e.f.  22nd February 1995,  his  name  was considered for the  post  of  Director General  when  the Departmental Promotion Committee  met  in January,  1999.   Shri K.B.  Rajoria ( the  Respondent  No.1 before   us)  filed  an   application  before  the   Central Administrative  Tribunal claiming that he was also  eligible to  be  considered  for  the   post  of  Director   General. According   to  Rajoria,  if   the  Departmental   Promotion Committee  had  been  held in 1995- 96, he could  have  been appointed  to the post of Additional Director General  which had  fallen  vacant on 1.5.1995.  His case was that  he  too should  have been given notional promotion with effect  from 1.5.95  in  which case he would have also been eligible  for promotion  to the post of Director General.  Rajoria claimed that he had been unfairly discriminated against because only Krishnamoorti  was being considered for the post of Director General.  It was however made clear before the Tribunal that Rajoria was not challenging the eligibility of Krishnamoorti to  be considered but was only seeking consideration of  his

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own  case along with Krishnamoorti for the post of  Director General.   The  Tribunal dismissed the respondent  No.   1’s application  on  12th  May  1999.   The  respondent  No.   1 challenged  the  decision  of the Tribunal before  the  High Court under Article 226 of the Constitution.  The High Court held that neither the respondent no.1 nor Krishnamoorti were eligible  on  the  cut  off date i.e.  1st  July,  1997  for promotion to the post of Director General.  According to the High  Court  the words regular service in the Rules  means actual  service  and that the fiction of notional  promotion could  not  amount  to the two years  experience  necessary under  the  Rules.  The High Court was of the view that  the notional  seniority  granted to Krishnamoorti by  the  order dated  10th June 1998 was no substitute for the  requirement of two years regular service as Additional Director General (Works)  which  had been laid down in the relevant rules  as the  eligibility  criteria  for  promotion to  the  post  of Director  General  (Works).  In our view, the  High  Courts decision  cannot  be  sustained.  First, the  concession  of Rajoria  before the Tribunal that he was not challenging the eligibility  of Krishnamoorti to be considered for promotion was  overlooked.   Second,  the  High  Court  erred  in  not dismissing  the  writ petition on the ground of the  obvious lack  of locus standi in Rajoria who had never been  granted notional  promotion because the DPC was not in fact held for reasons   which  the  High   Court  felt  were  unavoidable. Rajorias case was built on hypothetical situations, and his position  could  not  reasonably  be equated  with  that  of Krishnamoorti.   Third,  the High Court erred in  construing the  words regular service in the grade as actual physical service.   If  that  were so, then an ad hoc  appointee  who actually serves in the post could also claim to be qualified to be considered for the post of Director General.  The High Court  itself  held that ad hoc service rendered by any  of the  parties  would not count towards eligibility  Finally, while  considering  the definition of the word regular  in the Concise Oxford Dictionary, Ninth Edition, the High Court noted  that  it  meant:   (1)   conforming  to  a  rule  or principle,  systematic;   (2) harmonious, symmetrical;   (3) acting  or done or recurring uniformly or calculably in time or manner, habitual, constant, orderly;  (4) conforming to a standard  of  etiquette or procedure, correct, according  to convention;   (5)  properly  constituted or  qualified,  not defective  or amateur, pursuing an occupation as ones  main pursuit.

     The  word  regular therefore does not mean  actual and the first question the High Court should have considered was whether the appointment of Krishnamoorti was regular and in  accordance  with  the Rules or was it irregular  in  the sense  that  it was contrary to any principle of law?.   The decision  which  is  somewhat  apposite is the  case  of  K. Madhavan  V.   Union  of India 1987 (4) SCC  566  where  the eligibility  requirement was eight years in the grade on  a regular  basis.   In that case it was held :  In our  view, therefore,  the  expression ’on a regular basis’ would  mean the   appointment  to  the  post  on  a  regular  basis   in contradistinction  to  appointment on ad hoc or  stopgap  or purely  temporary  basis.  It  is nobodys  case  that  the notional promotion granted to Krishnamoorti was irregular. By  giving  him  notional promotion as  Additional  Director General  with effect from 22.2.95, Krishnamoorti was in fact regularly  appointed  to  the post on that date.   The  next question  which should have been considered was the  meaning of  the  word service in the light of the relevant  rules.

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The  Office  Memorandum referred to in the order dated  10th June,  1998  and  in terms of which notional  promotion  was granted  to  Krishnamoorti  contains several  provisions  of which  one  is relevant for our purposes:  18.4.3.  If  the officers  placed  junior to the officer concerned have  been promoted,  he should be promoted immediately and if there is no  vacancy the junior-most person officiating in the higher grade  should be reverted to accommodate him.  On promotion, his  pay  should be fixed under F.R.  at the stage it  would have reached, had he been promoted from the date the officer immediately  below him was promoted but no arrears would  be admissible.    The  seniority  of   the  officer  would   be determined  in  the order in which his name, on review,  has been  placed in the select list by DPC.  If in any such case a  minimum  period of qualifying service is  prescribed  for promotion  to higher grade, the period from which an officer placed  below  the officer concerned in the select list  was promoted to the higher grade, should be reckoned towards the qualifying  period of service for the purpose of determining his eligibility for promotion to the next higher grade

     Analysed these instructions provide:

     (i)  For  the immediate promotion of a person who  has been superseded.  (ii) Upon such promotion his pay should be fixed  at  the stage at which it would have reached  had  he been  promoted  from  the date that the junior  officer  was promoted.

     (iii)  The  seniority  of   such  notionally  promoted officer  would  be determined according to the  select  list prepared by the DPC if a minimum period is prescribed.

     (iv)  For  the  further promotion of  such  notionally promoted  officer,  his eligibility would be  calculated  as including  the  period  from which the  junior  officer  was promoted.

     Krishnamoorti  was admittedly superseded by Shri  S.R. Goyal,  a  junior officer on 22nd February, 1995, when  S.R. Goyal  was  promoted  to  the post  of  Additional  Director General (Works).  In terms of the provisions of para 18.4.3, Krishnamoorti  was entitled to count the period from 22.2.95 as  the  period  of qualifying service for  the  purpose  of further  promotion  to  the post of Director  General.   The distinction  drawn  by  the  High  Court  between  the  word service  used in the eligibility criteria in this case and the  words qualifying service in para 18.4.3 is  specious. The Notes to the eligibility criteria as set out in the said schedule  fortify  this  view.  Notes 1 and 2  to  the  said schedule clarify the position with regard to the calculation of    two  years regular service in the grade.   (1)  The eligibility  list  for  promotion  shall  be  prepared  with reference  to the date of completion by the officers of  the prescribed    qualifying   service    in   the    respective grades/posts.

     (2) If a junior with the requisite years of service is considered,   the   senior    will    also   be   considered notwithstanding  the  fact  that  he does  not  possess  the requisite years of service. (Emphasis added)

     Note  1  leaves  no  room  for  doubt  that  the  word

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service  means  qualifying service, and Note 2 makes  it clear  that  in case of supersession actual service for  the prescribed  period is not required.  This is in keeping with para  18.4.3  of the O.M.  quoted earlier.  As the  notional date  of  promotion  of  Krishnamoorti was  22.2.95  he  was eligible  to be considered for the post of Director  General in  1999.  In the context of this case, the High Court erred in  equating  the  words   regular  service  with  actual experience  relying  on the decision in Union of India  and others V.  M.  Bhaskar and Others 1996 (4) SCC 416.  In that case  the eligibility criteria expressly was of  completion of  2 years experience in Grade II. The case is  therefore entirely  distinguishable.  The notional promotion was given to  Krishnamoorti  to right the wrong that had been done  to him  by  his  supersession  on   22nd  February,  1995.   If Krishnamoorti  is  denied  the right to  be  considered  for promotion  to  the post of Director General on the basis  of such  notional  promotion,  particularly when  the  relevant provisions  so provide, it would result in perpetuating  the wrong  done to him.  That is exactly what the High Court has done.

     We,  therefore,  allow  the appeal and set  aside  the impugned  order of the High Court, in so far as the  finding regarding  Krishnamoorti  was concerned.  There will  be  no order as to costs.