PREM PRAKASH Vs UNION OF INDIA & ORS.
- Citation2024 SCC OnLine Del 8873
Ratio decidendi
The rule this decision rests on
The right to be considered for promotion accrues only on the date when eligible candidates are actually considered for that promotion under the applicable recruitment rules; absent such rules, no vested right to promotion accrues merely because new posts have been created, and a promotion cannot be effected in the absence of the notified Recruitment Rules governing those posts. A person seeking promotion to a newly created post cannot claim retrospective promotion merely on the ground that the post was created at an earlier date; the person can only be considered for promotion once the Recruitment Rules for that post have been framed, notified and brought into effect, and such Rules do not have retrospective application. Promotion from one rank to another must be made in accordance with the applicable Recruitment Rules and through the prescribed process, such as the Departmental Promotion Committee; the mere creation or upgrading of a post does not automatically entitle a person to promotion to that post. An employee has no enforceable right to demand promotion with reference to a date prior to the publication of the Recruitment Rules governing the post to which promotion is sought, even if the eligible employee had completed the requisite qualifications and courses by that earlier date.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Constitution of India, the petitioner pray for the following reliefs:“a) Issue appropriate writ, order or directions in the nature of mandamus commanding to the respondents to provide immediate consequential benefits and seniority to the petitioner and 297 other similar situated person w.e.f. August 2018 who have been promoted with a delay of 3 years to the rank of ASI (Armors) with immediate effect; b) Issue further appropriate writ, order or directions commanding the respondents to provide promotion to the rank of SI(Armors) to 37 persons out of 298 freshly promoted ASI(Armors) who
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were eligible for the promotion to the rank of SI(Armors) before issuance of the New Rules of Recruitment since 2018;” Case of the Petitioner: 2.
It is the case of the petitioner that the petitioner was inducted
into the Central Reserve Police Force (in short, ‘CRPF’) as Constable (General Duty), on 01.04.1990. The petitioner completed the Basic Armourer Course in 1994 and was subsequently transferred to the Armourer Division on 07.07.1995. On 08.08.2005, the petitioner was promoted from Constable (CT) (Armourer) to Head Constable (HC) (Armourer), and since then, the petitioner has continuously served the country without any further promotion. 3.
It is the case of the petitioner that there was initially a
promotion schedule in the CRPF for the advancement from HC to Sub Inspector (in short, ‘SI’), however, in the year 2018, the Ministry of Home Affairs (in short, ‘MHA’) issued a Memo No. O.VI-7/2013PERS-II dated 03.08.2018, creating the post of Assistant SubInspector (ASI) (GD) in the CRPF. The said promotion schedule was later approved by the Directorate, vide Order No. O.VI-7/2013-ORGDA-III, dated 21.12.2018, for application to the CRPF (Armourer) as well. 4.
It is the case of the petitioner that since the post of ASI had not
been released as of 30.06.2020, the DIG (Estt) issued a letter/reminder requesting the release of the ASI post and the finalization of the Recruitment Rules, which were still awaited. Thereafter, the petitioner, through his counsel, sent a legal notice dated 02.02.2021 to
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the respondents, requesting that the promotion be granted within a period of two weeks. 5.
The respondent no. 3 replied to the petitioner’s legal notice
dated 02.02.2021, stating that the matter was under consideration with the MHA and that upon approval, the promotion of eligible HC (Armourer) to the post of ASI (Armourer) would be released at the earliest. Subsequently, the petitioner sent a reminder to the respondent no. 1, requesting that the needful be done within one week of receiving the reminder, however, no action was taken. 6.
It is the case of the petitioner that being aggrieved of the
inaction of the respondents, the petitioner filed a Writ Petition in this court, being W.P. (C). 3533/2021 titled Prem Prakash V. Union of India & Ors, in which this Court directed the respondents to frame the Recruitment Rules for ASI (Armourer) within six months. This Court, vide Order dated 25.03.2021, directed that in the event the Recruitment Rules are not framed within the stipulated time, the petitioner shall have the liberty to initiate contempt proceedings against the respondents. 7.
The new Recruitment Rules for the post of ASI (Armourer)
were published in the Gazette of India, vide GSR No. 617(E), dated 06.09.2021. 8.
It is the case of the petitioner that all 298 Constables/Head
Constables of the CRPF, who were promoted with a delay of 3 years to the rank of ASI (Armourer) as per the Directorate Letter No. P.VU.39/2021Estt (04/2020)-DA-6 dated 13/09/2021, were affected by this delay. A counterpart of the petitioner sent a legal notice dated
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17.01.2022, to the respondents, requesting for the provision of consequential benefits and seniority from August 2018 for all the 298 Constables/Head Constables of the CRPF who were promoted with a delay of 3 years to the rank of ASI (Armourer). The respondents replied to the above legal notice on 07.02.2022, denying any action on the legal notice from the petitioner's counterpart, and stated that the averments made in the legal notice were baseless. 9.
The petitioner has, therefore, approached this Court seeking
seniority for himself and the 297 other similarly situated individuals, with effect from August 2018, as they were promoted with a delay of 3 years to the rank of ASI (Armourer). Additionally, the petitioner requests the respondents to promote 37 of the 298 newly promoted ASI (Armourer) personnel to the rank of SI (Armourer), as they were eligible for promotion to that rank before the issuance of the new Recruitment Rules in 2018. Submissions of the learned counsel for the Petitioner: 10.
The learned counsel for the petitioner submits that in the present
case, 298 posts of ASI (Armourer) had been created by the MHA vide office Order dated 21.12.2018. However, the respondents delayed the notification of the Recruitment Rules and resultantly, the Recruitment Rules were notified only on 06.09.2021, with promotions to the said posts being made with effect from 13.09.2021. He submits that due to the delay caused by the respondents, the petitioner and other similarly situated personnel of the CRPF cannot be made to suffer. He submits that, therefore, the promotion must be given a retrospective effect from the date of the creation of the post of ASI, that is, August 2018.
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He submits that there were 37 personnel who were eligible for promotion to the rank of SI (Armourer) before the issuance of the new Recruitment Rules. Their promotion was delayed only because the exercise of formation of the new Recruitment Rules was in progress. They would, therefore, be entitled to promotion to the rank of SI (Armourer) from the date they became eligible for the said post. Submissions of the learned counsel for the Respondents: 11.
On the other hand, the learned counsel for the respondents
submits that a proposal for the first cadre review of the Armourer cadre (Group ‘B’ and ‘C’) to enhance their promotion prospects was forwarded to the MHA vide UO No. O.IV.7/2013-Org dated 24.04.2018. Subsequently, the MHA conveyed the Competent Authority's approval for the first cadre review of the Armourer cadre (Group "B" & "C") through letter No. O.IV-07/2013-Per-II dated 0312-2018. He submits that this approval resulted in the creation of the post of ASI(Armourer) by abolishing an equal number of HC(Armourer) posts. He submits that the approval was communicated to all CRPF formations by the DIG (Org), Directorate, through order No. O.IV-07/2013-Org-DA-III dated 21-12-2018. 12.
The respondents further contend that with the introduction of
the ASI/Armourer rank into the cadre via Directorate Order No. O.IV07/2013-Org-DA-III
dated
21-12-2018,
promotions
from
HC/Armourer to ASI/Armourer were to be implemented. Extensive efforts were made to finalize the Recruitment Rules for the newly created ASI/Armourer posts, while simultaneously screening the records of eligible HC/Armourer personnel to enable immediate
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promotions upon finalization of the Recruitment Rules. Although the proposal for framing the Recruitment Rules for ASI/Armourer was initially submitted to the MHA via UO No. M.V-01/2019-Estt(P/Cell) dated 21-05-2019, the process was finalized only on 06-09-2021, after addressing repeated observations and concerns raised by the MHA over time. 13.
He further submits that the Recruitment Rules were finally
approved by the MHA via GSR No. 617(E) dated 06-09-2021 and published in the Gazette of India under No. 503 on 07-09-2021. Subsequently, 299 senior-most HCs (Armourer) (including the petitioner), who had completed the requisite promotional courses, were placed on the panel of the Special Approved List-AA/Armourer04/2020. They were promoted to the rank of ASI(Armourer) as per the Directorate letter dated 13.09.2021, with their seniority for further promotion being effective from 13.09.2021. They were also allowed to take charge of their promoted posts at their current locations, that is, places other than the declared headquarters, subject to meeting all the eligibility conditions for promotion. The petitioner was promoted to the rank of ASI (Armourer) with effect from 17.09.2021 (FN), with seniority for the next promotion being considered from 13.09.2021. 14.
The learned counsel for the respondents submits that the
government has already introduced the Modified Assured Career Progression (in short, ‘MACP’) Scheme, which provides for three financial upgradations at intervals of 10 years of regular service, subject to fulfilling the eligibility conditions. The petitioner has already been granted the second MACP benefit, effective from
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01.07.2011, as per the Office Order No. P.1.4/SRC-14 dated 26.03.2012. Additionally, 299 promotions to the rank of ASI (Armourer) were made after the posts of ASI (Armourer) were created by abolishing an equal number of HC/Armourer posts. He submits that the process of framing and publishing Recruitment Rules is timeconsuming and requires adequate time for completion. Analysis and Findings: 15.
We have considered the submissions made by the learned
counsels for the parties. 16.
At the outset, we must reiterate the general and universal
principle that the right to be considered for promotion accrues on the date of consideration of the eligible candidates, unless, of course, the applicable rule lays down a particular time-frame within which the selection process must be completed. Where no statutory duties are cast to either prepare a year-wise panel of the eligible candidates or of the selected candidates for promotion, no vested right accrues in favour of the personnel to seek such promotion, especially in the absence of the recruitment rules. 17.
In the present case, pursuant to the first cadre review of Group
‘B’ and ‘C’ Armourer Cadre of the CRPF, the MHA, vide letter dated 07.12.2018, had conveyed the approval of the Competent Authority, inter alia, for the creation of 298 posts of ASI (Armourer). As these were new posts being created, Recruitment Rules for the same had to be notified. The exercise for the framing and notification of the Recruitment Rules started with the proposal thereof being sent by the Competent Authority in the CRPF to the MHA for seeking its
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approval. The respondents alleged that the MHA had raised certain objections and queries on the said draft of the recruitment rules, and after due deliberation, the Recruitment Rules were finally approved by the MHA on 06.09.2021 and published in the Gazette of India on 07.09.2021. 18.
In between, the petitioner had also filed a petition before this
Court, being W.P. (C). 3533/2021, praying for a direction to the respondents to promote the petitioner and other similarly situated persons from the post of Head Constable (Armourer) to ASI (Armourer) with effect from 2018. This Court disposed of the said petition vide Order dated 25.03.2021, with a direction to the respondent no.1 to frame the Recruitment Rules for the post of ASI (Armourer) within six months of the said order. The Recruitment Rules so framed have been made to come into effect from the date of their publication in the Official Gazette and, therefore, do not have a retrospective effect. 19.
In the absence of the Recruitment Rules, the petitioner,
therefore, cannot seek promotion to the post of ASI (Armourer), even though such posts were created by the MHA vide its letter dated 07.12.2018. There could not have been a promotion in a vacuum. It is not the case of the petitioner that the petitioner has been discriminated as against some other personnel. It is also not the case of the petitioner that they were the feeder cadre for the post of ASI (Armourer) and that some other personnel belonging to such other feeder cadres obtained a march over the petitioner due to the delay in framing of the Recruitment Rules.
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20.
In KJS Bains v. Union of India and Ors., 2024 SCC OnLine
Del 1919, a Division Bench of this Court held that merely because a post has been upgraded, it would not mean that a person shall automatically
be
upgraded/promoted
to
the
post.
Such
upgradation/promotion has to be in accordance with the Recruitment Rules and through the process of the Departmental Promotion Committee (DPC). The above Judgement was followed by a Division Bench of this Court in Vijay Yadav & Ors. v. Union of India & Ors., 2024 SCC OnLine Del 2773, as well. 21.
In view of the above, we find no merit in the present petition.
The petitioner cannot claim a retrospective promotion merely due to the creation of a post. In the absence of the Recruitment Rules, the petitioner could not have been considered for the said post during the interregnum till such time the Recruitment Rules were notified. 22.
As far as the claim of the 37 unnamed persons for promotion to
the post of SI (Armourer) is concerned, the petitioner cannot agitate their rights in the present petition. We, therefore, do not make any comment on the entitlement of these persons in the present petition. 23.
Accordingly, we find no merit in the present petition. The same
is dismissed. NAVIN CHAWLA, J SHALINDER KAUR, J DECEMBER 16, 2024/rv/DG Click here to check corrigendum, if any
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