Read Time: 16 minutes

Synopsis

The Supreme Court recently observed that past services can be taken into consideration for promotion only when the rules permit it or where a special situation exists, which would entitle the employee to obtain such benefit of past service.

A bench of Justices Sudhanshu Dhulia and Ahsanuddin Amanullah allowed an appeal filed by the National Highway Authority of India (NHAI) against the Madras High Court's March 1, 2023 judgment which upheld an order of the Central Administrative Tribunal which had directed for computation of period of deputation of an officer for considering his promotion to the post of Deputy General Manager (Technical).

In the present case, respondent no. 1 G Athipathi was initially appointed as Manager (Technical) on deputation by order on May 27, 2008 and worked as such till June 13, 2014. Thereafter, he was repatriated to his parent department namely the Highways & Minor Ports Department, Government of Tamil Nadu.

"Thus, it is clear that the repatriation of respondent no 1 from June 13, 2014 was back to a Government Department in the State of Tamil Nadu on a full-time basis since it was the parent department of the respondent no 1 and unconnected with the appellant," the bench noted.

The court pointed out that respondent no. 1 later on, joined in the service of the appellant on direct recruitment basis to the post of Manager (Technical) for which he was selected on August 26, 2015, and finally appointed on September 02, 2015, albeit with effect from August 26, 2015.

"Thus, for all practical purposes, it meant direct and fresh entry on a permanent basis of the respondent no 1 into the appellant. As he had been repatriated to his parent department more than a year prior to such permanent appointment, it cannot be termed ‘absorption’ which finds mention in the Clause. Thus, respondent no 1 was a fresh and new recruit into the service of the appellant directly to the post of Manager (Technical). This was totally unrelated/unconnected to his previous service with the NHAI from May 27, 2008 till June 13, 2014 which transaction was complete and reached finality when the respondent no 1 was repatriated to his parent department," the bench said.

The court said in the case in hand, upon repatriation, there was no subsequent deputation of respondent no 1 to the appellant, NHAI.

"Only after more than one year pursuant to taking part in a process for direct and regular recruitment to the post of Manager (Technical), respondent no 1 was appointed, with effect from August 26, 2015. Therefore, we have no doubt that the Circular of May 22, 2017 would not confer any legal right on the respondent no 1 for consideration for promotion to the post of Deputy General Manager (Technical) with effect from July 27, 2017," the bench said.

The court noted that in the Circular, the language of Clause 6 was very clear and stipulated that a person’s deputation service, if any, rendered on the post of Manager (Technical) in the appellant had to be treated as regular service for the purposes of promotion to the post of Deputy General Manager (Technical) and such promotion would be notional with effect from the date he fulfilled the eligibility criteria of promotion but not before the date of absorption of applicants, subject to recommendations of the Selection Committee.

"It is clear that the period of deputation is also to be considered while considering such promotion but the question lies in the fact that whether a person, who before coming into effect of Clause 6, stood repatriated to his parent department and was no more in the service of the appellant can take advantage of the said Clause," the bench said.

The court noted that respondent no. 1 clearly on May 22, 2017, had not completed 4 years as that had to be counted afresh from August 26, 2015 and not from a previous date. This is for the reason that had the respondent no 1 not applied for and taken part in the selection process as a direct recruit, being selected, his claim would not have arisen for any promotion under Clause 6 of the Circular, court said.

The persons already working with the appellant on the day of consideration and having completed more than four years of service on the post of Manager (Technical) were only required to be considered, it pointed out.

"Here, we may clarify that the only object of Clause 6 was to obliterate the difference between a person working on deputation on the post of Manager (Technical) and a person regularly working on the post of Manager (Technical) under the service of the appellant. This also was done as a ‘one-time measure’," the bench said.

The court examined the legal issue as to whether respondent no. 1 had to be treated as a fresh entrant without the benefit of his past service on deputation from May 21, 2008 till June 13, 2014 or he had to be treated as a fresh appointee, in which case the clock started ticking only from August 26, 2015.

The bench felt the contention of the counsel for the appellant was correct that if the interpretation advanced by the respondent no. 1 was given to Clause 6, then it could cover all persons who, at any point in time, might have worked with the appellant for four years, getting the benefit, even with gaps in service.

"A person on deputation was given a one-time benefit for being considered for promotion to the post of Deputy General Manager (Technical) by the appellant for ending prolonged litigation and for ensuring fairness and justice to the candidates who chose to face competition by going for direct recruitment as would be clear from the Minutes of October 20, 2017 of the Executive Committee’s meeting held on October 12, 2017," the bench said.

The said minutes leave a window open for people who may have been absent from service in the appellant for certain period, but with the caveat that such period of absence was restricted to the purposes of fulfilling administrative formalities e.g. submission or acceptance of technical resignation/retirement etc, court opined.

In the present case, the court pointed out that respondent no. 1 was absent from the service of the appellant not for any of the above specific purposes, but on a permanent basis i.e., being sent back to his parent department.

"Unfortunately, to our mind, the ‘etc.’ in ‘fulfilling administrative formalities e.g. submission/ acceptance of technical resignation / retirement etc’ would not cover situation of respondent no 1. Obviously, respondent no 1 cannot take advantage of a saving provision for such deputationists who, for some period, had to go back but for the purposes of returning to the appellant, which have been incorporated in the Minutes," the bench said.

The bench held that the appellant had made out a case for interference and the decision taken by the appellant not to grant promotion to the respondent no. 1 needed to be upheld.

"The other three persons had been granted promotion for the reason that those three persons were very much working in/with the appellant on the date of consideration and had completed more than four years of minimum required service whereas the respondent no 1 had not completed four years of minimum required service. Hence, he could not have been considered for promotion from July 23, 2017 as per the direction of the CAT since he had not completed four years on the post of the Manager (Technical) after having joined pursuant to direct recruitment on such post, on which service could only be reckoned from August 26 2015", the court said.

The bench, therefore, held the impugned order could not be sustained and dismissed the original application filed by the respondent no 1.

Case Title: National Highway Authority of India Vs G Athipathi And Others