G. George Paracken, Member (J)

1. The first applicant in this Original Application is the #Central Health Service Regularly Appointed Doctors Forum (Regd.)# and the second applicant is one Dr. Balaram Mohanty who is a member of Ist applicant Forum. They have challenged the Annexure A-1 order of the Respondent No. A-32012/07/CHS-II dated 28.11.2008 promoting them to the post of Supertime Administrative Grade of the General Duty Sub-Cadre of Central Health Service in the scale of pay of Rs. 37400-67000 plus NPA at the prescribed rates, corresponding grade pay of Rs. 10000 (Pay Band # 4) (pre-revised scale of pay of Rs. 18400-22400 plus NPA at the prescribed rates) with effect from the date they assume the charge of the post on promotion. Their claim is that they should have been promoted from the date of occurrence of the vacancies or from the date of the DPC meeting which recommended their promotion and not in any case from the subsequent dates on which they assumed the charge in the promotional post as done by the Respondents.

2. This Tribunal has earlier considered the aforesaid rival contentions and dismissed this OA, vide its order dated 05.11.2009, holding that the claim of the applicants is not supported by any law. In this regard, this Tribunal has placed reliance on the judgments of the Apex Court in Nirman Chandra Sinha v. Union of India and Ors., : 2008 (4) SCALE 839 , Union of India v. K.K. Vadera and Ors., : (1989) Supp. 2 SCC 625 and State of Uttranchal and Anr. v. Dinesh Kumar Sharma, (2007) 1 SCC 683. The relevant part of the aforesaid Order dated 05.11.2009 reads as under:

2. Applicants were regularly appointed Doctors through Union Public Service Commission (UPSC) through the Association have raised a grievance by contending through their learned Counsel that in order to give regularized Doctors undue advantage over the regular UPSC appointed Doctors and by not implementing the directions of the Apex Court in the matter of Dr. P.P.C. Rawani v. Union of India : (1992) 1 SCC 331 ad hoc regularized Doctors of GDMO Sub Cadre of Central Health Service were given enhanced benefit by giving them illegal accelerated promotions and adjusting them in regular posts instead of supernumerary posts. Contempt Petition No. 169/2005 was filed before the Apex Court, whereby on 13.8.2007 a direction was issued not to communicate the orders of promotion without leave of the Court either to the regular promotees nor to the so called regularized promotees. However, this contempt was finalized by an order dated 14.11.2008 by directing the cadre of ad hoc Doctors to be adjusted on supernumerary posts. During the interregnum a DPC met on 11/13.2.2207 and recommendations of Appointments Committee of the Cabinet were approved on 28.11.2007.

3. Learned Counsel of applicants would contend that no leaveof the Apex Court was sought and the promotion orders have been delayed in giving effect thereto. It is also stated that by not holding the DPC for a number of years to SAG, applicants have been denied their due promotions in violation of Articles 14 and 16 of the Constitution of India. In this regard paragraph 16.5.1 of the DoP&T guidelines on promotion issued in 1992 and reiterated in 1997 has been highlighted to state that the appointing authority has to take a decision on ACC approval to appoint amongst the panel of promotion within three months. As this has not been done, the Respondents have erred in law.

4. On the other hand, learned Counsel of Respondents vehemently opposed the contentions and stated that in compliance of the order passed in Dr. P.C. Ravani (supra) separate seniority list was maintained for all Doctors, though they remained under the same Sub Cadre of General Duty of CHS. The regularized officers were considered for promotion to the next grades, i.e., Senior Medical Officers, Chief Medical Officers and CMO (NFSG) grades with effect from the date of promotion of their immediate juniors in regular side. As these directions were not vacancy-based and the next promotion being of SAG was vacancy-based, the regularized officers could not be promoted so that they would not affect the promotional avenues of regular Doctors. Accordingly 56 supernumerary posts were created. However, after a contempt filed by the regular Doctors was heard and in between for the vacancy years 2004-2007 a DPC was held in UPSC in February 2007 and in July 2007. However, in the meantime, an interim order was in effect, as such after the decision of the contempt proceedings by the Apex Court promotion has been given effect to.

5. Learned Counsel would contend that in law promotion cannot be given either from the date of DPC or from the date of occurrence of vacancies.

6. On careful consideration of the rival contentions of the parties, guidelines issued for holding DPC are merely guidelines and are not mandatory in character, as ruled by the Apex Court in Nirman Chandra Sinha v. Union of India and Ors., : 2008 (4) SCALE 839 as also stipulated by the decisions of the Apex Court in Union of India v. K.K. Vadera and Ors., : (1989) Supp. 2 SCC 625 and State of Uttranchal and Anr. v. Dinesh Kumar Sharma, (2007) 1 SCC 683 that promotion would take effect from the date of being granted and not from the date of occurrence of vacancies.

7. In the above view of the matter, the contentions put-forth by the learned Counsel of applicants are not supported by law. Accordingly, the delay in promoting the applicants after holding DPC was on account of non-communication of the orders as per the directions of the Apex Court. As such, the promotions could not be given effect to. As soon as the final decision was taken by the Apex Court, the promotion orders were passed by the Respondents, giving effect to promotion from the date of joining, which do not suffer from any legal infirmity. It is also trite that promotion could be antedated when junior has been promoted and person has been illegally denied promotion, but this is not the case of the applicants before us.

8. Resultantly, for the foregoing reasons OA is found bereft of merit, which is accordingly dismissed. No costs.

3. The applicants challenged the aforesaid order before the Hon#ble High Court of Delhi vide WP (C) No. 4956/2010 and the High Court vide its order dated 28.07.2010 in the said petition remitted the case back to this Tribunal and restored it for fresh adjudication with the following observations:

2. Learned Counsel for the Petitioner as also the Respondent do not dispute that the impugned order is completely unintelligible.

3. Suffice would it be to state that the issue of law which arose for consideration and the factual back drop in which it arose for consideration has not been brought out vide impugned order.

4. Very superficial reference has been made to certain dates as also the office orders as also DOPT guidelines but without analyzing what they are and how they impact the question raised by the Petitioners.

5. Thus without commenting upon the merits of the controversy we dispose of the writ petition, with consent, quashing the impugned order dated 05.11.2009 and restore OA No. 338/2009 for fresh adjudication by the Central Administrative Tribunal.

6. The matter would be listed before the Registrar of the Tribunal when Petitioner would file an application enclosing therewith a copy of this order; listing before the Registrar would be on 17.08.2010.

7. Thereafter matter would be placed before the Bench for fresh hearing.

8. It is hoped and expected that the Tribunal would bring out the issue of law which needs to be decided. The Tribunal would give reasons as to why the said issue of law arises and thereafter would give reasons to decide the question of law which arises for adjudication.

4. Brief facts of the case: The members of the #Central Health Service Regularly Appointed Doctors Forum (Regd.)# have been regularly appointed through the Union Public Service Commission (UPSC for short). The so called #regularized promotees# are some of the doctors who have been appointed by the Respondents on ad hoc basis during the years 1968 and 1977 later on regularized from the respective dates of their initial appointments. The dispute regarding their inter se seniority went up to the Apex Court by way of Civil Appeal No. 3519/1984 - Dr. P.P.C. Rawani v. Union of India (: 1992 (1) SCC 331 ) and it was decided on 29.10.1991 with certain directions including the one which is as under:

In order to ensure that there is no disturbance of the seniority and the promotional prospects of the regularly recruited doctors there will be a separate seniority list in respect of the Appellants and their promotions (about which directions are given below) shall be regulated by such separate seniority list and such promotions will only be in supernumerary posts to be created as mentioned below.

According to the applicants, as a result of such regularization, those ad hoc doctors who have been regularized later were given accelerated promotion, adjusting them against the regular posts instead of promoting them to supernumerary posts as held by the Apex Court in Dr. Rawani#s case (supra). Against the aforesaid action of the Respondents, both parties have filed Contempt Petition Nos. 160/2005 and 169/2005 before the Apex Court. However, the Respondents have held the DPC on 11-13.02.2007 which recommended promotions of the members of the applicant No. 1 association and the process of their promotion was in progress. However, the Hon#ble Supreme Court, vide its Order dated 13.08.2007, in Contempt Petition No. 169/2005 (supra), by way of an interim measure ordered that #neither the regular promotees nor the so called regularized promotees would be communicated the orders of promotion without leave of this Court.# Thereafter, the Appointment Cabinet Committee (ACC) was held on 28.11.2007 to consider the recommendation of the DPC for promotion of the applicants held on 11-13.02.2007. Vide Annexure A-4 judgment dated 14.11.2008, the Apex Court finally disposed of the aforesaid contempt petition and thereafter the Respondents have issued the impugned Annexure A-1 order dated 28.11.2008 communicating promotions of 78 members of the applicant No. 1 forum making them effective from their dates of assumption of charge. The said order was issued exactly one year after the ACC has approved the appointments on 28.11.2007.

5. According to the applicants, the effective date of their promotion should have been from the date of occurrence of the vacancy or from 11-13.02.2007 i.e. the date of DPC or from 28.11.2008 i.e. the date of the meeting of the ACC which approved the proposal for their promotion or from there spective dates from which the vacancies have arisen as the Hon#ble Supreme Court did not suspendany promotions but only stayed the communication of promotion. They have also submitted that theafore said Annexure A-1 impugned order is arbitrary, illegal, unconstitutional being discriminatory and violative of the fundamental rights of the applicants guaranteed under Articles 14 and 16 of the Constitution of India. They have, therefore, made the Annexure A-5 representation dated 15.12.2008against the same but the Respondents have not considered it or replied to the same. Hence this OA.

6. The learned Counsel for the applicants Shri Sagar Saxena has relied upon the judgment of the Apex Court in Dr. P.P.C. Rawani (supra) itself wherein it has been held as under:

this Court did not intend any regularized doctor to steal a march over the regularly appointed doctors, either individually or as group. To ensure that the seniority and promotional prospects of regularly recruited doctors were not affected, this Court directed a separate seniority list in respect of regularized doctors and clarified that their promotions will only be in supernumerary posts.

7. His other contention is that the order of the Apex Court dated 13.08.2007 in Contempt Petition No. 169/2005 (supra) was in no way a hindrance for the Respondents to promote the applicants from the date of the DPC recommending their names for promotion or even from the date on which the vacancies had occurred. The only direction of the Apex Court in the said petition to the Respondents was that they should not communicate the orders of promotion to them without the leave of the court. In this regard, he has relied upon the judgment of the Apex Court in Kalabharti Advertising v. Hemant Vimalnath Narichania and Ors. (: 2010 (9) SCC 437 ) wherein it has been held as under:

15. No litigant can derive any benefit from the mere pendency of a case in a Court of Law, as the interim order always merges into the final order to be passed in the case and if the case is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrongs by getting an interim order and thereafter blame the Court. The fact that the case is found, ultimately, devoid of any merit, or the party withdrew the writ petition, shows that a frivolous writ petition had been filed. The maxim "Actus Curiae neminem gravabit", which means that the act of the Court shall prejudice no-one, becomes applicable in such a case. In such a situation the Court is under an obligation to undo the wrong done to a party by the act of the Court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralised, as the institution of litigation cannot be permitted to confer any advantage on a party by the delayed action of the Court. (vide: Dr. A.R. Sircar v. State of Uttar Pradesh and Ors., : 1993 Supp. (2) SCC 734; Shiv Shanker and Ors. v. Board of Directors, Uttar Pradesh State Road Transport Corporation and Anr., : 1995 Supp. (2) SCC 726; the Committee of Management, Arya Inter College, Arya Nagar, Kanpur and Anr. v. Sree Kumar Tiwary and Anr., : AIR 1997 SC 3071 ; GTC Industries Ltd. v. Union of India and Ors., : AIR 1998 SC 1566 ; and Jaipur Municipal Corporation v. C.L. Mishra, : (2005) 8 SCC 423 ).

16. In Ram Krishna Verma and Ors. v. State of U.P. and Ors., : AIR 1992 SC 1888 , this Court examined the issue while placing reliance upon its earlier judgment in Grind lays Bank Limited v. Income Tax Officer, Calcutta and Ors., : AIR 1980 SC 656 and held that no person can suffer from the act of the Court and in case an interim order has been passed and the Petitioner takes advantage thereof, and ultimately the petition stands dismissed, the interest of justice requires that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralized. A similar view has been reiterated by this Court in Mahadeo Savlaram Shelke and Ors. v. Pune Municipal Corporation and Anr., : (1995) 3 SCC 33.

17. In South Eastern Coalfields Ltd. v. State of M.P. and Ors., : AIR 2003 SC 4482 , this Court examined this issue in detail and held that no one shall suffer by an act of the Court. The factor attracting the applicability of restitution is not the act of the Court being wrongful or a mistake or error committed by the court; the test is whether an act of the party persuading the Court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage it would not have otherwise earned, or the other party suffering an impoverishment which it would not have suffered but for the order of the Court and the act of such party. There is nothing wrong in the parties demanding to be placed in the same position in which they would have been had the Court not intervened by its interim order, when at the end of the proceedings, the Court pronounces its judicial verdict which does not match with and countenance its own interim verdict. The injury, if any, caused by the act of the Court shall be undone and the gain which the party would have earned unless it was interdicted by the order of the Court would be restored to or conferred on the party by suitably commanding the party liable to do so. Any opinion to the contrary would lead to unjust if not disastrous consequences.

18. The Court further held:

.....Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the courts, persuading the Court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are earlier to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end.

This cannot be countenanced. We are, therefore, of the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated.......

19. In Karnataka Rare Earth and Anr. v. Senior Geologist, Department of Mines & Geology and Anr., : (2004) 2 SCC 783 , a similar view has been reiterated by this Court observing that the party who succeeds ultimately is to be placed in the same position in which they would have been if the Court would not have protected them by issuing interim order.

8. Again in Amarjeet Singh and Ors. v. Devi Ratan and Ors. (: 2010 (1) SCC 417 ), the Apex Court has held as under:

26. There is another aspect of the matter. The Appellants and the Respondents have been considered by the DPC held on 19.12.1998 to fill up 42 vacancies under the un amended rules. However, at the cost of repetition, it may be pertinent to mention here that only 30 candidates/appellants were found suitable by the DPC held on 19.12.1998 and had been promoted, under the un amended Rules on the criterion of "merit". The Respondents had been promoted under the amended rules by carrying forward 12 vacancies, by another DPC held subsequently on 22.1.1999 on different criterion, i.e., "Seniority subject to rejection being unfit". Indisputably, these 12 officers/respondents were found unsuitable for promotion under the un amended rules by the DPC held on 19.12.1998. Subsequent thereto, both set of officers had been promoted notionally from the back dates. The Appellants had been given promotions as AEC against the vacancies for the year 1994-95 while the Respondents were given notional promotions against the vacancies for the years 1996 and 1997. The seniority list dated 12.7.2000 was prepared accordingly. As the Appellants had been given notional promotion w.e.f. 6.12.1995 and the Respondents w.e.f. 28.2.1997 and 13.8.1997, their inter se seniority had rightly been determined while issuing seniority list dated 12.7.2000.

27. The law permits promotion with retrospective effect only in exceptional circumstances when there has been some legal impediment in making the promotions, like an intervention by the Court. An officer cannot be granted seniority prior to his birth in the cadre adversely affecting the seniority of other officer who had been appointed prior to him. "The late comers to the regular stream cannot steal a march over the early arrivals in the regular queue" (vide Dr. S.P. Kapoor v. State of Himachal Pradesh AIR 1981 SC 2181 ; Shitala Prasad Shukla v. State of U.P. and Ors., : AIR 1986 SC 1859 ; and Uttaranchal Forest Rangers Assn. (Direct Recruit) and Ors. v. State of U.P. and Ors., (2006) 10 SCC 346).

28. In the instant case, promotions had been made by two different DPCs held on 19.12.1998 and 22.1.1999. Both the DPCs had made promotions under different rules on different criterion and their promotions had been made with retrospective effect with different dates notionally. In the writ petition before the High Court, the promotion of the Appellants had not been under challenge. The seniority which is consequential to the promotions could not be challenged without challenging the promotions. Challenging the consequential order without challenging the basic order is not permissible. (vide Chithranja Menon and Ors. v. A. Balakrishnan and Ors., : AIR 1977 SC 1720 ).

9. The learned Counsel has also relied upon the order of a co-ordinate Bench of this Tribunal in OA 2710/2003 # Sh. Vijender Singh v. Union of India and Ors. wherein the relief sought was to direct the Respondents to allow seniority to the applicants w.e.f. the dates and the years in which vacancies against which the applicants have been appointed were available and against which the applicants are shown to have been appointed. The relevant part of the said judgment reads as under:

9. On careful consideration of the rival contentions of the parties we advert to the directions in OA-2239/98 where due to the fault of Respondents by not holding LDCE since 1992 segregation of vacancies was ordered and was to be filled up on year wise basis. It is also observed that ratio of 1:1 is to be maintained between LDCE and promotees and eligibility should be segregated with vacancies to ensure that those who have qualified the examination do not get the benefit of seniority against the year when they were not even eligible.

10. The only rational and logical interpretation to be given to the aforesaid is that the year wise panels are to be drawn and on acquirement of eligibility the applicants therein are to be promoted from the date of promotion and in that event on eligibility and deeming that they have passed the examination in the relevant year seniority is to be accorded.

11. We have also perused the record and find that most of the applicants have been found eligible and have qualified the LDCE for the posts for the years 1995-1996 onwards. Accordingly, they were promoted in 2002 but their promotion is to be deemed on notional basis from the date they have been found eligible on acquirement of eligibility and passing of the LDCE. Accordingly, the seniority is to relate back on notional basis to the date of the year in which they have been found eligible.

12. We also find that the Executive Engineers have also been accorded notional seniority. The ground for difference is revision of seniority and reduced eligibility period to applicants has no reasonable nexus with the objects sought to be achieved. This differentia is not intelligible. LDCE examination apart from promotion quota has always been a fast tract promotion. Once the similar treatment has been meted out in the next promotional cadre the same cannot be denied to applicants which would offend the principles of equality enshrined under Article 14 of the Constitution of India.

13. In the result, for the foregoing reasons, OA is allowed. Impugned orders are quashed and set aside. Respondents are granted notional seniority to applicants from the dates and years when vacancies arose. If in the process the others are adversely affected they should be put to notice before any adverse action is taken against them.

10. The other judgment relied upon by the learned Counsel for the applicants is Food Corporation of India v. S.N. Nagarkar (: 2002 (2) SCC 475 ) wherein it has been held as under:

19. Having regard to the facts and circumstances of the case, the Court was satisfied that the Respondent was not only to be considered for promotion to the promotional posts, but was also entitled to arrears of pay and allowances since he had been deprived of those benefits not on account of any fault of his but on account of the fault of the authorities concerned. It is well settled that in exercise of writ jurisdiction, the court may mould the relief having regard to the facts of the case and interest of justice.

20. In this appeal, we are not called upon to pass a judgment on the correctness of the order passed by the learned Judge in Civil Writ Petition No. 4983 of 1993 dated 6-5-1994. The only question that arises for consideration is whether under the said judgment and order, the Respondent is entitled to the arrears of pay and allowances from the dates of promotion. In our view the learned Single Judge as well as the Division Bench in letters patent appeal have correctly held that the Respondent (petitioner in the writ petition) is entitled, in terms of the order dated 6-5-1994, to arrears of pay and allowances with effect from the dates he was granted the two promotions, and not from the date he joined the promotional posts. No interference by this Court in exercise of jurisdiction under Article 136 of the Constitution of India is called for. This appeal is, therefore, dismissed with costs which is quantified at Rs 2500.

11. Further the learned Counsel for the applicants referred to the instructions issued by the DOPT vide O.M. No. 22034/6/89-Estt. (D) dated 29.04.1989 regarding recommendation of the DPC in which the UPSC is represented. The relevant part of the said O.M is as under:

Appointing Authority to take decision within 3 months

16.5.1 In cases excepting those which require the approval of the Appointments Committee of the Cabinet the appointing authority should take a decision either to accept or disagree with he recommendations of the DPC within a time-limit of three months (from the date of the DPC meeting or the date of communication of the UPSC#s approval to the panel, where such approval is required). Where the appointing authority proposes to disagree with the recommendations, the relevant papers should be submitted by the appointing authority to the next higher authority with its own recommendations by the expiry of the period of three months. In those cases in which the UPSC is associated with the DPC and the appointing authority proposes to disagree with the recommendations of the DPC, the case should be forwarded to the Establishment Officer in the Department of Personnel and Training for placing the matter before the Appointments Committee of the Cabinet as soon as possible and, in any case, not later than three months from the date on which the validity of the panel commences.

16.5.2 In cases where the panel prepared by the DPC requires the approval of the ACC, proposals there for along with the recommendations of the Minister-in-charge should be sent to the Establishment Officer before expiry of the same time-limit of three months.

12. The Respondents have filed their reply. They have submitted that the recruitment in the sub-cadre is made on regular basis at Medical Officer level through UPSC. However, during the period from 1968 to 1977, a number of doctors were appointed on ad hoc basis. Simultaneously, regular appointments through UPSC were also made during this period. The status of those ad hoc appointee doctors were later on decided on the basis of the judgment of the Supreme Court in Dr. P.P.C. Rawani#s case (supra). In the said judgment, the Apex Court has held as under:

The promotion of any of the Appellants to the post of Senior Medical Officer, Chief Medical Officer and further promotional post there from will be on par with the promotion of the regularly recruited doctor who is immediately junior to the concerned Appellant on the basis of their respective dates of appointment. In other words, if a regularly recruited doctor, on the basis of the seniority list maintained by the department, gets a promotion as Senior Medical Officer or Chief Medical Officer or further promotion thereafter, then the Appellant who was appointed immediately earlier to him will also be promoted as a Senior Medical Officer or Chief Medical Officer or further promotion there from (as the case may be) with effect from the same date.

13. In compliance of the aforesaid order, a separate seniority list was maintained for all the regularized doctors. However, both the regular and regularized doctors remained under the same sub-cadre i.e. General Duty of CHS. The regularized officers were considered for promotion to the next grades i.e. Senior Medical Officer (SMO), Chief Medical Officer (CMO) and CMO (NFSG) grades w.e.f. the date of promotion of their immediate junior in regular side. The corresponding seniority was decided on the basis of the date of joining of the respective officers in regular and regularized side. As promotion up to the level of NFSG was not vacancy based and as the posts of MO, SMO, CMO and NFSG were floating posts, no fresh posts were created for giving promotion to the regularized officers.

However, since the promotion to the next higher level i.e. SAG was vacancy based and there were fixed No. of SAG level posts, the promotion to regularized officers could not be given against the sanctioned SAG posts because that could have adversely affected the promotional avenues of regular doctors. Therefore, it was decided to create supernumerary posts to promote the regularized officers. Regarding the issue of number of supernumerary posts at SAG level to be created for regularized doctors, the Respondents filed an I.A. No. 2/2004 in CA No. 3519/1984 with the proposal that the number of regularized officers to be promoted to SAG level should be 3.8% of the total number of Regularized doctors# strength as the total number of SAG posts in regular side were in the same percentage of the total sanctioned strength of the GD sub cadre. However, the Hon#ble Supreme Court dismissed the I.A. on 13.05.2005 and directed the Ministry to implement the order dated 29.10.1991 within six weeks. In other words, the Hon#ble Apex Court directed that all regularized doctors senior to the officer in regular side promoted to SAG level w.e.f. a date should be considered for promotion to SAG level from the particular date. Accordingly, 56 supernumerary posts at SAG level were created vide Ministry#s order dated 06.10.2005 and promotion orders in respect of 42 regularized doctors were issued on 30.04.2006. In the meantime, the regular doctors filed a Contempt Petition in the Supreme Court in CP No. 160/2005 against the decision of the Govt. to promote the number of regularized officers to SAG level. Regularized officers also filed a Contempt Petition in Supreme Court against the delay in their promotion to SAG level in CP No. 169/2005. Both the contempt petitions were heard by the Hon#ble Supreme Court many times since then as connected matters. In between promotion orders of 41 regular officers to SAG level were issued on 22.04.2006 and on the basis of that, 146 supernumerary posts were created by the Govt. vide order dated 30.11.2006 to give promotion to the eligible regularized officers. DPC meetings for promotion of regular officers against 114 regular vacancies (85 for the year 2005-06 and 29 for the year 2006-07) was held in the UPSC in February, 2007. Another DPC meeting was also held in UPSC in July, 2007 for promotion of regularized officers to SAG level against the 146 supernumerary posts. The recommendations of the DPCs were approved by ACC in November, 2007. However, in the meantime, the Hon#ble Supreme Court passed an interim order on 13.08.2007 in the said Contempt Petitions and stayed issuing of promotion orders to SAG level posts either in case of regular officers or in case of regularized officers. Therefore, the issuing of promotion orders was kept in abeyance. As the promotion of the recommended officers, which was to take effect only from the date of assumption of charge of the SAG post, was being delayed the Ministry requested the court on 02.05.2008, 10.08.2008 and 12.09.2008 for vacation of the stay. In this regard, an IA was also filed by the Govt. The stay was vacated by the Supreme Court on 14.11.2008 by delivering final judgment in the Contempt Petitions. In this judgment, the Hon#ble Court restricted the number of regularized officers to be promoted to SAG level by propounding that the same should be in 1:1 proportion with reference to the number of regular officers promoted to SAG level from a particular date. The promotion orders in case of regular doctors were issued on 28.11.2008. Since in GD sub-cadre of CHS the promotion to SAG level relates assumption of higher responsibilities and duties, as per DOPT#s guidelines the promotion has only prospective effect. The regular doctors Association represented to the Govt. against the delay in issuing the promotion orders and requested for antedating the promotions made vide order dated 28.11.2008 w.e.f. the date the ACC approved the recommendations of DPC i.e. 28.11.2007. The matter was considered in the Ministry taking into account all the circumstances including the fact that the delay was caused due to the stay order given by the Hon#ble Court due to the rival claims by the regularized and regular doctors in the Contempt Petitions and that antedating the promotion will be against the DOPT guidelines and will have repercussions. Therefore, the request of the regular doctors# association has not been agreed to and they were informed accordingly on 02.03.2009.

14. We have once again heard the learned Counsel for the parties in detail. The only question to be considered, in the facts and circumstances of this case, is that when the decision has already been taken to promote the applicants, whether the date of promotion should relate back to the date (s) on which the vacancies have occurred or the date of DPC which recommended their promotions or the date of the ACC on which the recommendations of the DPC were approved or the date of actual assumption of the higher post. There cannot be any straight jacket answer to this question. Any attempt to answer this question without considering the facts and circumstances of each case would lead to wrong conclusions. The applicants herein are the members of the Association which fought for their seniority and promotional prospects in Dr. P.P.C. Rawani#s case (supra). They are the regularly recruited doctors. As directed by the Apex Court in the said case, the Respondents have been maintaining a separate seniority independent of the seniority list of #regularized promotes#. Both the groups were not satisfied with the Respondents in implementing the orders of the Apex Court in granting promotions to them and both of them filed contempt petitions. The Apex Court, vide its order dated 13.08.2007, restrained the Respondents from communicating the orders of promotions in both cases. Even after the aforesaid direction of the Apex Court, the process initiated by the Respondents, including the recommendation of the DPC for promoting applicants made on 11-13.02.2007 continued and the approval of the ACC was obtained on 28.11.2007 but the Respondents as well as the rival Petitioners in both the contempt petitions have waited for the Apex Court to finally decide them. When the Apex Court finally disposed of those contempt petitions on 14.11.2008, the Respondents have immediately given effect to the recommendations of the DPC held on 11-13.02.2007 as approved by the ACC on 28.11.2007 by issuing the order of promotion of 78 members of the Applicant-Association with the stipulation that the effective dates of their promotion will be from the respective dates of their assumption of charge on the promoted post. The justification on the part of the Respondents for granting the promotion from the prospective effect was that the Apex Court has disposed of the contempt petition filed by the rival parties only on 14.11.2008 and immediately thereafter they have promoted them vide order dated 28.11.2008. But the applicants# contention was that the Apex Court has never stayed their promotion but only restrained the Respondents from communicating the orders of promotion. In other words, the Respondents could go ahead with the process of promotion to promote the applicants from the due dates but they have to wait for the leave of the Apex Court to communicate the order of their promotion. The Respondents have done the very same thing except for the effective dates of promotion.

15. Therefore, the learned Counsel for the applicants has contended that the date of promotion should have been from the date the DPC have recommended their case for promotion i.e. from 13.02.2007 or at least from 28.11.2007 i.e. the date the ACC has approved their recommendation but not in any case from the dates of assumption of charge by the applicants. According to them, the Respondents have misunderstood or misinterpreted the orders of the Apex Court in the Contempt Petition dated 13.08.2007 as an order of restraint against the promotion itself whereas it was only against communicating the orders of promotion. In this regard, he has, first of all, relied upon the Memorandum dated 29.04.1989 issued by the DOPT where it has been stated that except in those cases which require the approval of the ACC, the appointing authority should take a decision as to whether it accepts or rejects the recommendation of the DPC within three months but those cases which require the approval of the ACC, they should be sent to them. The learned Counsel argued that since the appointing authority has accepted the recommendations of the DPC and sent it for approval of the ACC, the date of appointment should have been from the date of recommendation of the DPC or from the date of approval of the DPC.

16. In our considered view, the judgment of the Apex Court in Kalabharti Advertising (supra) is quite apt in this case. The maxim #Actus Curiae neminem gravabit# which means that the act of the Court shall prejudice no-one, should apply in this case. The Apex Court decision in the Contempt Petitions filed by the Petitioners in Dr. P.P.C. Rawani#s case (supra) and their opposite parties shall not be interpreted to deprive the applicants their rightful claim for promotion from the due date. To repeat, the direction of the Apex Court was not to communicate the promotions and not to promote the eligible candidates. Applying the aforesaid maxim, by denying promotion to the applicants from the due date would in effect amount to deriving of undeserved and unfair advantage by the Respondents. Again in Ram Krishna Verma and Ors. v. State of U.P. and Ors. (: AIR 1992 SC 1888 ) placing reliance upon its earlier judgment in Grind lays Bank Limited v. Income Tax Officers, Calcutta and Ors. (: AIR 1980 SC 656 ), the Apex Court held that no person can suffer from the act of the Court and in case an interim order has been passed and Petitioner takes advantage thereof and ultimately the petition is found to be without any merit and is dismissed, the interest of justice requires that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralized. The judgments of the Apex Court in Nirman Chandra Sinha (supra), K.K. Vadera and Ors. (supra) and Dinesh Kumar Sharma (supra) are not applicable in the facts and circumstances of this case.

17. As held by the Apex Court in Union of India v. K.V. Jankiraman (: AIR 1991 SC 2010 ), Arugrah Narayan Sinha v. United Commercial Bank (: 1988 (II) LLJ 295 (Cal), K.S. Venkatraman v. State of Tamil Nadu (1977 II LLJ (Mad) and P.N. Premachandran v. State of Kerala (: 2004 (1) SCC 245 ), even though promotion is generally made with prospective effect, for the ends of justice and to compensate the concerned employee for denying him promotion at the time when it was due to him, the Court can direct the promotion to be granted with retrospective effect.

18. In view of the above position, this O.A is allowed. Consequently, the impugned Annexure A-1 Order No. A32012/07/05/-CHS-I dated 28.11.2008 is quashed and set aside to the extent that the promotion to the applicants has been made effective from the date they assume charge. The Respondents shall treat the applicants as promoted to Supertime Administrative Grade of the General Duty Sub-Cadre of the Central Health Service with effect from 13.02.2007 i.e. the date on which the DPC has recommended them for promotion for which the ACC has accorded its approval. In view of the above facts and circumstances of this case, the applicants will also be entitled for all consequential benefits including arrears of pay and allowances, seniority, etc. from that date. However, the Respondents shall comply with the aforesaid directions within two months from the date of receipt of a copy of this order. There shall be no order as to costs.