2018 (2) TMI 1807 - HC - Indian Laws

Promotion to the grade of UDC - the respondent had been notionally promoted to the grade of UDC with effect from 23rd August, 1999 by Pune-1 Commissionerate and was placed at serial No.358A in the seniority list of UDCs as on 1st January, 2002 - Held that - Respondent has been given notional promotion from 2002. The respondent pursuant to the notional promotion, has joined on the promotional post and since then he has been receiving all the consequential, ancillary and incidental benefits arising from the date of notional promotion on 6th December, 2002 as in the case of other persons - It does not appear in the facts of the case, that the respondent has been ignored for promotion or for that matter there had been no reason for not giving promotion to the respondent, as observed by the tribunal. The tribunal appears to be oblivious of prevailing facts and circumstances from time to time, as have been referred to by the petitioner. The tribunal s order does not take into account all these aspects which would have bearing in the matter. Having regard to the attending circumstances, inter-alia, the others to whom also notional date of promotion is given, financial benefits are not given from such a date - we do not see that the impugned decision rendered by the Chief Commissioner for Persons with Disabilities, new Delhi is sustainable on facts and in the circumstances and the position as would be obtaining from the developments taking place from time to time - petition allowed.

Summary

Issues Involved:
1. Propriety, validity, and correctness of the order dated 31st March, 2010 by the Chief Commissioner for Persons with Disabilities, New Delhi.
2. Eligibility and consideration for promotion of the respondent to the grade of Upper Divisional Clerk (UDC) and Inspector.
3. Application of reservation and benefits for persons with disabilities in promotions.
4. Entitlement to financial benefits from the date of notional promotion.
5. Jurisdiction of the Chief Commissioner for Persons with Disabilities in service matters.

Issue-wise Detailed Analysis:

1. Propriety, Validity, and Correctness of the Order Dated 31st March, 2010 by the Chief Commissioner for Persons with Disabilities, New Delhi:
The petitioner questioned the propriety, validity, and correctness of the order dated 31st March, 2010, passed by the Chief Commissioner for Persons with Disabilities, New Delhi. The court found that the tribunal did not consider all relevant aspects and prevailing circumstances, leading to the conclusion that the impugned decision was not sustainable on facts and circumstances. The order was set aside.

2. Eligibility and Consideration for Promotion of the Respondent to the Grade of UDC and Inspector:
The respondent joined as a Lower Division Clerk (LDC) on 31st May, 1993. According to the 1979 recruitment rules, LDCs were eligible for promotion to UDC after seven years. The respondent was promoted to UDC on 23rd August, 1999, following a relaxation of the seven-year service requirement. For promotion to Inspector, a five-year service as UDC was required, making the respondent eligible in August 2004. However, due to restructuring in 2003, promotional posts were reduced, affecting his eligibility. The respondent was eventually given notional promotion to Inspector with effect from 6th December, 2002, following a review DPC on 13th January, 2009.

3. Application of Reservation and Benefits for Persons with Disabilities in Promotions:
The respondent, a person with disabilities, claimed he was ignored for promotion despite being eligible under the reserved quota. The tribunal noted that other persons with disabilities were promoted, and the respondent was not considered despite his eligibility. The court, however, found that the respondent was given notional promotion in line with others and that there was no deliberate attempt to exclude him from promotion.

4. Entitlement to Financial Benefits from the Date of Notional Promotion:
The respondent sought financial benefits from the date of his notional promotion. The court observed that notional promotions do not entitle employees to back wages unless they have actually worked in the promoted post. The principle of "no work, no pay" was upheld, and the respondent was not granted financial benefits from the notional date of promotion, consistent with the treatment of other promoted officers.

5. Jurisdiction of the Chief Commissioner for Persons with Disabilities in Service Matters:
The petitioner argued that the Chief Commissioner for Persons with Disabilities does not have the jurisdiction to entertain service matters and pass orders like the impugned one. The court found merit in this argument, noting that the tribunal's order did not adequately consider the jurisdictional limitations and relevant service rules.

Conclusion:
The court allowed the petition, setting aside the order dated 31st March, 2010, by the Chief Commissioner for Persons with Disabilities, New Delhi. The respondent's request for back wages was denied, and it was held that the notional promotion granted to the respondent was appropriate under the circumstances. The rule was made absolute in these terms.