Hon’ble Mr. Manish Garg, Member (J)

1. Under consideration are two OAs (No. 3794/2017 and No. 769/2021). As the facts, relief claimed and the question of law involved in both these are similar, we propose to dispose of both these OAs by this common order. However, facts of OA No.3794/2017 are being taken as a lead case.

2. Learned counsel for the applicant stated as under:-

2.1 The applicant, who qualified the UPSC examination, was posted in a Group-A post in Central Water Commission under Ministry of Water Resources in Junior Time Scale (JTS) w.e.f. 28.02.1991 and subsequently he was promoted to the grade of Senior Time Scale (STS) w.e.f. 04.03.2002.

2.2 As per Central Water Engineering (CWE) Service Rules, 2004 [hereinafter referred to as Rules of 2004], officers of Junior Administrative Grade [JAG] with three years’ regular service in the grade and having experience of field or two years’ experience in investigation in the JAG and/or STS of the Service, are eligible for promotion to Senior Administrative Grade [SAG]. The applicant completed seventeen years of service in Group-A post in the year 2008.

2.3 In January, 2008, the applicant requested for rotational transfer/posting on prescribed format with an object for having field experience followed by other request letters dated 04.01.2010 and 04.01.2011, but no action was taken thereon. However, on 18.01.2011, request of the applicant was acceded to by his senior and was recommended for posting in Gandhinagar. Meanwhile, the applicant was promoted to JAG and was reposted in Headquarter in PB-4 (Rs.37400-67000 with GP Rs.8700).

2.4 The applicant was posted to Ahmedabad on field posting where he joined on 28.05.2012. On 07.06.2012, he completed one year’s regular service in PB-4 (Rs.37400- 67000 with GP Rs.8700) and acquired eligibility as per Rule 5 of Rules of 2004.

2.5 Respondent no.1, vide order dated 24.12.2014 granted NFU in SAG with GP of Rs.10,000/- to three officers of his batch for the year 2013-14 and eight officers of junior batches while the applicant had been left out on the ground that he had not completed the requisite field posting of two years as on 01.04.2013, i.e., crucial date of eligibility. It is pertinent to mention here that in spite of repeated requests made by the applicant for rotational transfer/posting since 2008, he was not transferred to acquire the field experience and/or experience in the field of investigation for two years to make him eligible for grant of NFU. As the applicant cannot acquire experience of field/investigation unless he is transferred on rotation basis by the respondents, denial of benefit of NFU to the applicant for want of field experience is illegal and violative of principles of natural justice.

2.6 When one similarly placed officer, namely, Ravi Shankar (1988 batch), who was also lacking in field experience and was not granted NFU, approached this Tribunal by filing OA No. 3383/2013, it was allowed vide order dated 25.08.2015 observing that “We are of the view that if the applicant has not been able to get the requisite field experience, it is not on account of his fault but on account of the employer’s failure to discharge the responsibilities in career management of the applicant. It is also well recognized that when the power of transfer and posting lies in the hands of the respondents and there are rules which provide that the management should be done in a manner that enables the applicant to have gathered the requisite field experience, the law of estoppel would stand in the way of the respondents to even adopt such a plea. We also find that the career of the applicant has been put to stake in the name of exigency of work and once it has been established that the applicant could not avail of field posting on account of exigency of work and further once contribution has been recognized on different level, it becomes the bounden duty on part of the respondent organization to compensate the applicant for the loss suffered by him. The recommendation qua lack of field posting of the applicant during the relevant period requires waiving off reasonable and in recognition of his contribution to work and his deprivation on account of faulty implementation of the transfer policy on part of the respondents.

2.7 The aforesaid order of the Tribunal was affirmed by the Hon’ble High Court of Delhi vide judgment dated 21.03.2016 by dismissing the WP(C) No. 2394/2016 preferred by the respondents.

2.8 The applicant preferred a representation dated 14.06.2016 seeking modification of order dated 24.12.2014 vide which he was denied NFU with a request to grant him NFU w.e.f 01.04.2013, i.e., the date on which his immediate junior was granted the same. The said representation of the applicant was rejected by the respondents vide order dated 08.07.2016 informing that “the grant of NFU is subject to fulfilment of promotional norms which, inter alia, include fulfilment of two years of field posting on STS or JAG. Since Shri Rishi Srivastava had not completed the required field experience at the time of his batch-mates were granted NFU, the benefit could not be accorded to him. Denial of NFU to the applicant is against the settled position of law held by this Tribunal Ravi Shankar’s case (supra) and affirmed by the Hon’ble High Court of Delhi.

3. Per contra, the respondents have filed a counter affidavit and vehemently opposed the claim of the applicant. Apart from giving factual matrix of the case, they have stated that the respondents vide order dated 24.12.2014 granted NFU in the SAG grade to 39 JAG officers of CWES against the vacancy years 2011-12, 2012-13 and 2013-14. The case of the applicant for grant of NFU w.e.f. 01.04.2013 was to be considered along with other officers belonging to 1990 batch (1989 examination) against the vacancy year 2013-14, but the benefit could not be granted to him as he had not completed two years’ field experience, as stipulated in the promotional norms, on the crucial date i.e., 01.01.2013.

4. Heard Mr. T.N. Saxena, learned counsel for the applicants, Mr. A.K. Shrivastava, learned counsel for the respondents, and perused the material available on record as well as the citations relied upon by the learned counsel for the applicants.

5. The crux of the matter is whether the promotion of a government employee can be withheld on account of his not possessing the requisite field experience, although his postings are decided by the respondents and the applicant has no control over the same.

6. Having heard learned counsel for both the parties, we are of the firm view that the issue, as raised in the present OA, is identical to the one adjudicated upon by a coordinate Bench of this Tribunal in Ravi Shankar’s case (supra) in which this Tribunal held as under:-

“14…We are of the view that if the applicant has not been able to get the requisite field experience, it is not on account of his fault but on account of the employer’s failure to discharge the responsibilities in career management of the applicant. It is also well recognized that when the power of transfer and posting lies in the hands of the respondents and there are rules which provide that the management should be done in a manner that enables the applicant to have gathered the requisite field experience, the law of estoppel would stand in the way of the respondents to even adopt such a plea. We also find that the career of the applicant has been put to stake in the name of exigency of work and once it has been established that the applicant could not avail of field posting on account of exigency of work and further once contribution has been recognized on different level, it becomes the bounden duty on part of the respondent organization to compensate the applicant for the loss suffered by him. The recommendation qua lack of field posting of the applicant during the relevant period requires waiving off reasonable and in recognition of his contribution to work and his deprivation on account of faulty implementation of the transfer policy on part of the respondents.”

6.1 The aforesaid order of this Tribunal has been affirmed by the Hon’ble High Court of Delhi while dismissing the WP(C) vide order dated 21.03.2016. Since the issue as mentioned in para 5 above has already been set at rest, holding the respondents liable for not posting their employees on a field post despite their repeated requests to acquire field experience, the respondents are estopped from denying the benefit of grant of NFU to the applicant herein.

6.2 In the entire conspectus of facts and circumstances brought out above, we direct the respondents to grant NFU to the applicant by waiving off the qualifying period of two years’ field experience and consider him to grant notional promotion/NFU from the date when his immediate junior had been granted the same from due date. He shall also be entitled to all consequential benefits flowing therefrom, only on notional basis.

6.3 The exercise, as ordained above, shall be complied with by the respondents within a period of two months from the date of receipt of a certified copy of this order.

6.4 Both the Original Applications i.e. OA No.3794/2017 and 769/2021 stand allowed in the aforesaid terms.

6.5 A copy of this order be kept in the file of OA No.769/2021 also.

7. No order as to costs.