Shyam Singh vs M/o Home Affairs
- Court
- Central Administrative Tribunal
Item No..52/Court No.1
1
OA No.482 of 2015
Central Administra
ative Tribunal
Bench,
elhi
Principal B
New De
OA No. 482
of 2015
6
Orders
s reserved on : 12.10.2026
6
Orders pro
onounced on : 27.10.2026
Hon’ble Mr. Justice Ranj
Hon’ble Mr. Rajinder Ka
njit More, Chairman
ashyap, Member (A)
Sh. Shyam S
S/o Late Ch
Presently po
Sashastra Se
Frontier He
District Alm
Singh,
hhering Medup,
osted as Area Organiser,'
eema Bal,
eadquarters, Ranikhet,
mora, Uttarakhand-263645
….Applicant
i Parmeet Singh, Shri Saurav
bu Hassan Usmani and Shri
t
v
(By Advocat
Malik, Shri
Shahil Rana
tes : Shri Sagar Saxena, Shri
Krishnandu Haldar, Shri Ab
a)
i
Versus
ecretary
s
1. The Se
Minist
Gover
North
2. The D
Sasha
East B
New D
3. Shri S
Viii
PO.
Tehsil
Distt
Himac
4. Sh. V.
O/0 D
East B
New D
5. Shri A
try of Home Affairs
rnment of India
h Block, New Delhi
Director General
astra Seema Bal
Block-V, R.K Puram,
Delhi-110066
Sansar Chand (Ex-Area Organ
niser)
: Kandbari (Sornu)
: Kamlehar
l : Palampur
: Kangra
chel Pradesh
)
K. Sharma, Dy. Inspector Gen
Director General, SSB
Block-V, R.K. Puram,
neral,
Delhi – 110066
A. Brahamin, (Ex- Area Organi
Avi Kunj, Dr. Grahams Homes
iser)
above dispensary
C/o A
PO
Tehsil
Distt
West B
: TopKhana
l : Kalimpong
: Darjeeling
Bengal
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
MARG, NEW DELHI 110001, telephoneNumber=
5b491534ade0b015fafa6f7185daf00161f030b0bc4a2fa0c67dd30bd5b99ab9 Reason: I am the author of this document
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Item No..52/Court No.1
2
OA No.482 of 2015
6. Shri A
O/o th
10 Ku
AK. Das, Dy. Inspector Genera
al
he Dy. Inspector General, Sect
tor Hqrs. SSB
dir Distt- Pilibhit (U.P)
nwargarh near Dudhiya Mand
7. Shri T
Nation
3rd Fl
Sansa
New D
Thomas Chako,
nal Security Council Secretari
loor, Sardar Patel Bhawan
ad Marg
iat
Delhi- 110001
8. Shri B
Quart
New D
B. S. Rawat, (Ex Area Organise
er )
ter No. 840, UC Flat, P/S Hats
Delhi
sal, Uttam Nagar
9. Sh. Ba
Viii
PO
Tehsil
Distt
Himac
aktawar Singh, (EX-Area Orga
aniser)
: Tarwar
: Janali
l : Nainadevi
: Bilaspur
chal Pradesh
10. R.C. M
Garh V
PO- I.
Mokh
Uttrak
Manori, (Ex- Area Organiser)
Vihar
.I.P. Gate
hampur, Dehradun
khand.
….Respondents
-1 and R-2, Shri Padma Kr. S
s
S
(By Advocat
for R-7, Shr
te : Shri Rajpal Singh for R-
ri Pradeep Kumar Sharma)
O R D E R
R
Hon’ble M
Mr. Rajinder Kashyap, Me
ember (A):
The g
grievance of the applicant is
s that the respondents have
wrongfully
y superseded his seniority f
for the years 2007–08 and
d
2008–09
vide SSB Directorate Order
No. 7/SSB/A2/2006(2)111-
13228-312
2 dated 12.12.2011. Despite
the applicant submitting a
a
representa
ation-cum-legal notice dated
d 02.05.2014 to Respondents
Nos. 1 and
d 2, no decision alleged to h
have been communicated to
o
him. Alth
ough the respondents, vid
de letter dated 08.08.2014,
informed
him that the matter was pe
ending consideration before
e
the compe
etent authority, however, th
he issue remains unresolved
d
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
MARG, NEW DELHI 110001, telephoneNumber=
5b491534ade0b015fafa6f7185daf00161f030b0bc4a2fa0c67dd30bd5b99ab9 Reason: I am the author of this document
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Item No..52/Court No.1
3
OA No.482 of 2015
to date. Th
he applicant further submitt
ted that, being a member of
f
the Sched
duled Tribe community, h
he approached the learned
d
National C
Commission for Scheduled
d Tribes (in short ‘NCST’)
under Arti
icle 338 A of the Constitutio
on of India. After a hearing
g
held on 1
19.06.2014 in the presence
e of representatives of the
e
Ministry o
of Home Affairs (MHA), S
SSB and the applicant, the
e
learned
NCST, vide order dated
19.08.2014, held that the
e
applicant's
s seniority required correctio
on/restoration and directed
d
the respon
ndents to take necessary act
tion, granting them 30 days
to submit
a compliance/action-taken r
report. However, despite the
e
aforesaid
directions of the learned N
NCST, the respondents have
e
not correct
ted/restored the applicant's
seniority.
2. Aggrie
eved by the continued
inaction of the official
l
responden
nts and the failure to redress
his grievance, the applicant
t
has appro
oached this Tribunal by fil
ling the present OA under
r
Section 19
9 of the Administrative Tribu
unals Act, 1985 seeking the
e
following r
reliefs:
“a) D
Direct the respondents to restore t
the original seniority of the
year 2007-08 w.e.f. 01-04-
ap
20
ap
ap
pplicant against the vacancy y
007 above Shri Sansar Chand
pplicant as shown in the senior
pplicant be also granted all conse
d & other juniors of the
rity list of 01-01-2011 and
equential benefits.
b) Pa
m
th
ass such other or further order
may deem fit and proper in the f
rs as this Hon'ble Tribunal
facts and circumstances of
his case.
c) A
ward cost of the litigation to the A
Applicant.”
3. Facts
of the case, as stated by
the applicant, are that the
e
applicant b
belongs to the Scheduled Tri
ibe (ST) category and joined
d
the Sashas
stra Seema Bal (in short ‘SSB
B’) on 02.09.1982 as a Circle
e
Organiser.
. He was subsequently prom
moted as Sub Area Organiser
r
on 27.08.1
1990 and Joint Area Organise
er on 12.02.2004.
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
MARG, NEW DELHI 110001, telephoneNumber=
5b491534ade0b015fafa6f7185daf00161f030b0bc4a2fa0c67dd30bd5b99ab9 Reason: I am the author of this document
Location: Date: 2026.11.02 15:53:28+05'30'
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Item No..52/Court No.1
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OA No.482 of 2015
3.1 It is
stated that as per the se
eniority list of Joint Area
a
Organisers,
, as on 01.01.2007, the appl
licant was placed at Sl. No.
15, wherea
as Shri Sansar Chand (Res
spondent No.3), Shri V.K.
Sharma (Re
espondent No.4), Shri A. Br
rahamin (Respondent No.5),
Shri Thom
mas Chacko (Respondent N
No.7) and Shri A.K. Das
(Responden
nt No.6) were placed below
w him at Sl. Nos. 16 to 20,
respectively
y ( Annexure A-1 ).
3.2 While
e the applicant was serving
as Joint Area Organiser at
t
SHQ, SSB,
, Gorakhpur, the SSB Dir
rectorate issued Order No.
7/SSB/A2/
2006(2)/7909-74 dated
01.10.2007, promoting
g
fourteen pe
ersons, including the afore
esaid officers junior to the
e
applicant, a
as ad hoc Area Organisers a
against sanctioned vacancies
( Annexure
e A-2 ). However, the app
plicant was superseded and
d
was not gra
anted promotion.
3.3 Aggrie
eved by his supersession, al
llegedly on the basis of the
e
ACR gradin
ngs for the years 2001–02, 2
2002–03, 2003–04, 2004–
05 and 200
05–06, without communicat
ting any adverse remarks or
r
below-benc
chmark gradings to him,
the applicant submitted
d
representat
tions to the Director
General, SSB, including
g
representat
tions dated 03.10.2007 and
23.10.2007 ( Annexure A-
3 ).
3.4 The a
applicant thereafter submitt
ted a representation dated
d
26.08.2008
8 to the Secretary, MHA, rai
ising concerns regarding the
e
undergradi
ng and downgrading of his A
ACRs for the years 2004–05
and 2005–
–06 ( Annexure A-4 ). How
wever, no reply was received
d
from the re
spondents.
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
MARG, NEW DELHI 110001, telephoneNumber=
5b491534ade0b015fafa6f7185daf00161f030b0bc4a2fa0c67dd30bd5b99ab9 Reason: I am the author of this document
Location: Date: 2026.11.02 15:53:28+05'30'
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Item No..52/Court No.1
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OA No.482 of 2015
3.5 The a
applicant, being aggrieved by
y the alleged discrimination,
approached
d the learned NCST by su
ubmitting a representation
n
dated 05.12
2.2007. The learned Comm
mission, vide Letter No. S-
-
11/MHA/06
6/ Services/07/RU.III dated
d 12.12.2007, observed that
t
“ there app
ears to be a case of discr
rimination and harassment
t
with ST p
petitioner and violation
of reservation policy in
n
promotion.
. ” and accordingly request
ted the official respondent
t
No.2, i.e., S
SSB that ‘ the matter may be
e enquired in detail and full
l
facts of the
e case along with action take
en/proposed to be taken on
n
the points
raised in the petition m
may be furnished to the
e
Commissio
n within 30 days. ’ ( Annexu
ure A-5 ).
3.6 Pursu
uant to the aforesaid direc
ction, the SSB Directorate
e
examined t
the matter and vide comm
munication dated 8.1.2008
( Annexure
e A-6 ) submitted that ‘
there is no provision of
f
reservation
n for SC/ST candidates in t
the rank of Area Organizer
r
(Rs. 14300
0-18300/-). However, in v
iew of DOP&T OM dated
d
08.10.2000
0 [P-33/c], DOP&T OM date
ed 10.04.1989 was restored
d
vide which
promotion of SC/ST Officer
rs who are senior enough in
n
the zone of
f consideration for promo
tion within the number of
f
vacancies f
for which the select list ha
as to be drawn up, would
d
notwithstan
nding the prescription of ‘b
bench mark' be included in
n
that list pr
rovided they are not consid
dered unfit for promotion.
Therefore,
Shri Shyam Singh being S
ST category candidate and
d
who was se
enior enough in the zone of c
consideration for promotion
n
with the n
umber of vacancies should
d have been considered for
r
promotion.
. SSB still recommends his
case for promotion.” The
e
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
MARG, NEW DELHI 110001, telephoneNumber=
5b491534ade0b015fafa6f7185daf00161f030b0bc4a2fa0c67dd30bd5b99ab9 Reason: I am the author of this document
Location: Date: 2026.11.02 15:53:28+05'30'
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Item No..52/Court No.1
6
OA No.482 of 2015
said commu
unication was forwarded to M
MHA for the decision in the
e
matter and
d the MHA vide commu
unication dated 5.12.2008
( Annexure
e A-7 ) observed as under:-
“6. A
10.04.8
gradin
its own
it has
may b
or attr
As per para 6.2.1.(e) of DOP&
89, "the DPC should not be gui
ng, if any, that may be recorded i
P&T DPC guidelines dated
ided merely by the overall
in the CRs but should make
n assessment on the basis of the
entries in the CRs, because
he overall grading in a CR
been noticed that some times th
e inconsistent with the grading
ributes" (P-35/C).
under various parameters
7. As p
2004,
be atle
out of l
er MHA U.O. No. 1-45023/20/20
the criteria for the Benchmark o
ast three ‘Very Good’ entries and
last five ACRs (P-36/C).
004/Pers-II dated 30 April,
of ‘Very Good’, there should
d other two not below ‘Good’
8. As
16.11.2
Author
author
Report
given/
(2001-
Shyam
Report
Review
withou
suppor
2005-0
Officer
per MHA U.O. No. CR-29
005, the assessment by the conce
rities should be impartial & o
rities decide to down/upgrade
9343/2005/Pers-III dated
erned Reviewing/Accepting
bjective and in case such
the grading given by the
asoning must be duly
five year grading of ACRs
05 and 2005-06) of Shri
wo ‘Good’ and one ‘Average’.
ting Officer, sufficient rea
/recorded (P-37/C). Out of last f
02, 2002-03, 2003-04, 2004-0
m Singh there two ‘Very Good’ tw
ting Officer has assessed Shri Sh
wing Officer down graded his
hyam Singh as "Good" and
assessment as "Average"
the absence of sufficient
Shyam Singh for the year
" (as recorded by Reporting
ut any supporting reason. In
rting reason the ACR of Shri S
06 needs to be treated as "Good"
r) by the DPC
9. On
(ST), J
Depart
forwar
placed
Area O
uniform
provisi
mentio
promo
MHA v
the basis of para 6 above, the A
Joint Area Organiser have b
tment consciously as mentione
rding U.O. No. 7/SSB/A2/200
ACRs of Shri Shyam Singh
been looked into by the
ed at para 14 (ii) of SSB
6(2)-40 dated 07.03.2007
for promotion to the post of
at (P-8/C), and found him fit fo
Organiser alongwith other genera
al category candidates as a
m standard. In view of this fact,
SSB has not mentioned the
for SC/ST candidates (as
e time of recommending the
ion of concession/relaxations f
oned in paras 3 & 5 above) at the
otion of Shri Shyam Singh while f
forwarding the proposal to
vide SSB U.O. referred to above.
10. As
submit
author
Organ
Shyam
his rep
not be
at this
s regards issue of bias in perfor
tted that all the initiating, R
rities of ACRs of Shri Shyam
rmance, appraisal, it is re-
Reviewing and Accepting
m Singh (ST), Joint Area
iser have already proceeded
m Singh (ST) has also represented
on superannuation. Shri
d against these officers vide
presentation dated 12.05.2008 pl
laced at (P-28/C). It would
her with the retired officers
feasible to pursue the case furth
belated stage.
11. In
case of
conside
basis i
SSB ea
view of paras 3, 5, 6, 8 & 9 abo
f Shri Shyam Singh, Joint Area
ered for promotion to the post of
in the pay scale of Rs.14,300-18
arlier and decision of competent
ove, it is requested that the
a Organiser may kindly be
f Area Organiser on ad-hoc,
8,300 as recommended by
t authority may kindly be
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
MARG, NEW DELHI 110001, telephoneNumber=
5b491534ade0b015fafa6f7185daf00161f030b0bc4a2fa0c67dd30bd5b99ab9 Reason: I am the author of this document
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Item No..52/Court No.1
7
OA No.482 of 2015
convey
Comm
inform
represe
yed to this office to send action ta
aken report to the National
New Delhi as well as for
ission for Scheduled Tribes, N
mation of the officer concern
ned in response to his
entations on the subject.”
3.7 The a
applicant also relied upon th
he ACRs for the years 2001–
02 and 20
004–05, wherein he had re
eceived overall gradings of
f
“Good”, de
espite the Initiating and
Reviewing Officers having
g
recommend
ded him fit for promotion a
and the Accepting Authority
y
having acce
epted such recommendation
ns. In respect of the ACR for
r
2005–06, t
the applicant contended tha
at the Reviewing Officer had
d
downgrade
d the grading from “Goo
od” to “Average” without
t
assigning re
easons or justification and th
hat the final grading had not
t
been accept
ted by the Accepting Author
rity ( Annexures A-8, A-9
and A-10 ,
respectively).
3.8 The
applicant further relied u
upon the DG's disc and
d
commendat
tion certificate dated 24.0
03.2005, awarded for his
sincere and
d dedicated service during 2
2004–05, in support of his
s
contention
that the assessment of his pe
erformance was inconsistent
t
with his ac
ctual service record ( Annex
xure A-11 ). He also relied
d
upon MHA
A U.O. No. CR-29343/2005
5/Pers.III dated 16.11.2005,
containing
instructions concerning the
e writing of ACRs, a copy of
f
which, alon
ng with the relevant APAR ar
e at Annexure A-12 .
3.9 The S
SB Directorate also recomm
mended that the provisions of
f
paragraph
6.2.1(e) of the DoP&T guid
delines dated 10.04.1989 be
e
kept in v
view while assessing the
applicant's suitability for
r
promotion,
particularly the principle
that a DPC should not be
e
guided me
rely by the overall grading
g recorded in an ACR but
t
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
MARG, NEW DELHI 110001, telephoneNumber=
5b491534ade0b015fafa6f7185daf00161f030b0bc4a2fa0c67dd30bd5b99ab9 Reason: I am the author of this document
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Item No..52/Court No.1
8
OA No.482 of 2015
should mak
ke its own assessment on the
e basis of the entries therein.
The relev
vant communication date
ed 18.07.2008 and the
e
Governmen
nt of India, Department o
of Personnel and Training,
Office M
Memorandum dated
03.10.2000 concerning
g
relaxation/
concession in promotion fo
or SC/ST candidates are at
t
Annexure
es A-13 and A-14 , respective
ely.
3.10 The m
matter was also examined by
y MHA, which, vide its note
e
dated 11.0
3.2008, recorded that SS
SB had admitted that the
e
applicant h
had been undergraded in th
he ACRs for 2004–05 and
d
2005–06 a
nd observed that such unde
rgrading had resulted in his
supersessio
on while considering ad hoc
c promotion for the vacancy
y
years 2006
6–07 and 2007–08. The MH
HA also sought clarification
n
regarding a
action taken or proposed aga
ainst the officers responsible
e
for the unde
ergrading ( Annexure A-15
).
3.11 After
examination of the matter,
MHA, with the approval of
f
the compet
ent authority, vide I.D. No. C
CR-47329/08/Pers.III dated
d
29.01.2009
9, decided the applicant's
case ( Annexure A-16 ).
Consequent
tly, the SSB Director
rate, vide Order No.
7/SSB/A2/
2006(2)II-989-1035 dated
30.01.2009, promoted the
e
applicant a
as an ad hoc Area Organise
er and restored his original
l
seniority( A
Annexure A-17 ).
3.12 There
eafter, the SSB aut
thorities submitted a
a
compliance
e/action-taken report to the
e learned NCST vide Letter
r
No. 7/SSB/
/A2/2006(2)1050-51 dated
30.01.2009 ( Annexure A-
-
18 ). Furth
er, the Director (Personne
el), MHA, vide Letter No.
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
MARG, NEW DELHI 110001, telephoneNumber=
5b491534ade0b015fafa6f7185daf00161f030b0bc4a2fa0c67dd30bd5b99ab9 Reason: I am the author of this document
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Item No..52/Court No.1
9
OA No.482 of 2015
7/SSB/A2/
2006(2) Vol. II dated
16.07.2009, assured the
e
Commissio
n that due weightage would
be given to the applicant at
t
the time of
f his regular promotion to t
the rank of Area Organiser
r
( Annexure
e A-19 ).
3.13 Subse
equently, the SSB Direct
torate issued the regular
r
promotion
order dated 25.02.2010,
retaining the applicant's
seniority ab
bove Shri Sansar Chand ( Ann
nexure A-20 ).
3.14 Howe
ever, vide Letter No. 7/SSB
B/P.1./2009(9)/5470 dated
d
10.05.2010
( Annexure A-21 ), the SSB
B authorities communicated
d
below-benc
chmark gradings to the appli
icant for the years 2001–02
(“Good”),
2004–05 (“Good”) and 2
2005–06 (“Average”), with
h
reference t
to the DoP&T Office Memo
orandum dated 13.04.2010
( Annexure
e A-22 ).
3.15 In res
sponse, the applicant submi
itted a representation dated
d
30.06.2010
0, pointing out, inter alia , th
hat his case of supersession
n
based on th
he aforesaid ACR gradings h
had already been examined
d
and decide
d by MHA on 29.01.2009,
resulting in his promotion
n
with restora
ation of his original seniority
y ( Annexure A-23 ).
3.16 There
eafter, vide Memo No. 1/SSB
B/EA-III/2010(42)/1673-75
dated 10.12
2.2010, the SSB authoritie
es informed the applicant
t
regarding t
the ACR gradings ( Annex
xure A-24 ). The applicant
t
contended
that the grading of “Averag
ge” for 2005–06, which had
d
earlier been
n recommended by SSB for
upgradation to “Good”, had
d
been revers
sed without justification.
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
MARG, NEW DELHI 110001, telephoneNumber=
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10
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3.17 The
applicant submitted anot
ther representation dated
d
31.12.2010
( Annexure A-25 ), reitera
ating that his supersession
n
had alread
dy been addressed by the
competent authority and
d
requesting
reconsideration of the releva
ant ACR gradings in the light
t
of the earlie
er decision. However, the rep
presentation was rejected by
y
the DG, SSB
B, vide Letter No. 466 dated
d 24.01.2011 ( Annexure A-
-
26 ).
3.18 Mean
nwhile, the seniority lists of A
Area Organisers issued as on
n
01.07.2009
9, 01.01.2010 and 01.01.20
011 continued to place the
e
applicant ab
bove Shri Sansar Chand ( An
nnexures A-27, A-28 and
d
A-29 , resp
ectively). According to the
applicant, no officer shown
n
below him
in these lists had challen
nged the restoration of his
original sen
niority pursuant to the order
dated 30.01.2009.
3.19 Subse
equently, a review DPC w
was held on 30.09.2011 to
consider ye
ear-wise notional promotion
of Joint Area Organisers to
the rank o
f Area Organiser for the v
acancy years 2006–07 to
o
2009–10 .
Pursuant thereto, the SSB D
Directorate issued Order No.
7/SSB/A2/
2006(2)III/13228-312 dated
d 12.12.2011 ( Annexure A-
-
30 ), whereb
by the applicant was granted
d promotion with effect from
m
01.04.2009
9, corresponding to the vac
cancy year 2009–10. In the
e
said order,
the applicant was placed b
below his juniors, including
g
Shri Sansar
r Chand (respondent no.3),
who was assigned seniority
y
against the
e vacancy year 2007–08 wi
ith effect from 01.04.2007.
The applica
ant further contended that h
his category had incorrectly
y
been chang
ged from Scheduled Tribe to G
General.
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
MARG, NEW DELHI 110001, telephoneNumber=
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3.20 Aggrie
eved by the aforesaid order
r, the applicant submitted a
a
representat
tion dated 19.12.2011 to the
e DG, SSB, challenging the
e
supersessio
on of his seniority ( Annexu
ure A-31 ). Having received
d
no response
e, he approached the learne
d NCST by a representation
n
dated 22.0
03.2012, challenging the se
econd supersession of his
seniority fo
or the vacancy year 2007–0
08 on the basis of the same
e
ACR gradin
ngs and the incorrect change
e of his category from ST to
o
General ( An
nnexure A-32 ).
3.21 The l
learned NCST, vide Letter
No. SS/2/2012/MHOM2/
SEHRMT/R
RU-III dated 12.06.2012, cal
lled upon the respondents to
o
furnish th
heir comments/report on
the applicant's grievance
e
( Annexure
e A-33 ).
3.22 There
eafter, the SSB Directorate is
ssued a partial modification
order date
ed 24.09.2012 ( Annexur
re A-34 ), restoring the
e
applicant's
Scheduled Tribe status by r
recording his name as “Shri
i
Shyam Sing
gh (S.T.)” instead of “Shri S
Shyam Singh”. However, the
e
official resp
pondents did not restore his o
original seniority above Shri
i
Sansar Cha
and (respondent No.3), as r
reflected in the order dated
d
12.12.2011.
3.23 Being
g dissatisfied with the pa
artial relief, the applicant
t
submitted a
a rejoinder before the learned
d NCST on 12.10.2012 and a
a
representat
tion dated 22.11.2012 to the
e Secretary, MHA, through
h
proper cha
annel ( Annexure A-35 )
. He also made further
r
representat
tions to the learned NCST
T during 2012 and 2013.
According
to the applicant, despite
reminders issued by the
e
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
MARG, NEW DELHI 110001, telephoneNumber=
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Item No..52/Court No.1
12
OA No.482 of 2015
Commissio
n to the concerned authorit
ties in MHA on 29.04.2014
4
( Annexure
e A-36 ), the issue of restora
ation of his original seniority
y
remained u
unresolved.
3.24 Durin
ng the pendency of the proc
ceedings before the learned
d
NCST, the
applicant, through counse
el, issued a representation-
cum-legal
notice dated 02.05.2014 t
o the official respondents,
requesting
restoration of his original s
seniority above Shri Sansar
r
Chand (resp
pondent no.3) with effect fro
om 01.04.2007 ( Annexure
e
A-37 ).
3.25 In r
response, the SSB autho
orities, vide Letter No.
14/SSB/Per
rs.I/2014(30)/9479 dated 0
08.08.2014, stated that the
e
applicant w
was senior to Shri Sansar C
Chand and was eligible for
r
promotion
to the rank of Area Orga
aniser for the vacancy year
r
2007–08.
However, according to the
e official respondents, the
e
review DPC
C had not recommended his
s promotion for the vacancy
y
years 2007
7–08 and 2008–09 becaus
e he had not achieved the
e
prescribed
benchmark of “Very Good
d”. The official respondents
further sta
ated that the applicant ha
ad been recommended for
r
promotion
for the vacancy year 2009–
–10 after upgradation of his
ACR gradin
ng for 2005–06 from “Ave
erage” to “Good”, and had
d
accordingly
y been granted notional pr
romotion with effect from
m
01.04.2009
9 ( Annexure A-38 ).
3.26 The ap
pplicant also relied upon the
e case of Shri M. Sunil Singh,
who, like th
he applicant, had been sup
perseded in the order dated
d
01.10.2007
. According to the applicant
t, Shri M. Sunil Singh's case
e
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
MARG, NEW DELHI 110001, telephoneNumber=
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13
OA No.482 of 2015
was subseq
quently decided by MHA o
on 19.05.2009, and he was
promoted
on 05.06.2009. In the
review DPC order dated
d
12.12.2011,
Shri M. Sunil Singh was
assigned notional seniority
y
with effect
from 01.04.2004, whereas
the applicant was assigned
d
notional se
niority only with effect from
m 01.04.2009. The applicant
t
contended
that the differential tr
reatment was unjustified,
particularly
y as his case had been de
ecided by MHA earlier, on
n
29.01.2009
9. The relevant SSB Direct
torate memorandum dated
d
26.12.2007
and the revised seniority l
ist dated 27.07.2009 are at
t
Annexure
es A-41 and A-42 , respectiv
vely.
3.27 The l
learned NCST held a mee
ting on 19.06.2014 in the
e
presence o
of representatives of MHA,
SSB and the applicant to
consider hi
s grievance. The learned Co
mmission observed that the
e
applicant's
promotion case for the v
vacancy year 2007–08 had
d
already bee
en decided by MHA on 29.0
1.2009 and that his original
l
seniority ha
ad been restored by the SSB
Directorate on 30.01.2009.
It further n
noted that the regular promot
tion order dated 25.02.2010
had retaine
ed his seniority above Shri Sa
ansar Chand and that he had
d
continued t
to be shown senior to Shri Sa
ansar Chand in the seniority
y
lists for 200
09, 2010 and 2011. The learn
ned Commission accordingly
y
observed t
that the supersession refle
ected in the order dated
d
12.12.2011
required correction, since
the applicant's promotion
n
case had al
lready been settled against
the vacancy year 2007–08
with restora
ation of his seniority.
3.28 The l
earned NCST accordingly a
advised the respondents to
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
MARG, NEW DELHI 110001, telephoneNumber=
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Item No..52/Court No.1
14
OA No.482 of 2015
review/rech
heck the anomaly or irregul
larity, take corrective action
for restora
tion of the applicant's sen
niority and promotion, and
d
submit a co
ompliance report. The Inspe
ector General, SSB, assured
d
the learned
d Commission that the matter
r would be reconsidered and
d
requested 3
30 days to submit the comp
pliance/action-taken report,
as is evid
dent from learned NCST
proceedings/order dated
d
19.08.2014
, bearing File No. SS/2/201
12/MHOM2/SEHRMT/RU-
III ( Annex
xure A-39 ).
3.29 Despi
ite the aforesaid proceedin
ngs and directions of the
e
learned NC
CST, the respondents have n
not restored the applicant's
s
original sen
niority above Shri Sansar Ch
hand (respondent no.3) with
h
effect from
01.04.2007. The applicant
asserted that the impugned
d
order dated
d 12.12.2011 has once again p
placed him below his juniors,
notwithstan
nding the earlier decision of
MHA, the SSB Directorate's
s
order dated
d 30.01.2009 restoring his se
eniority, and the subsequent
t
seniority lis
sts. Aggrieved by the contin
nued non-restoration of his
s
seniority an
nd the failure of the official
l respondents to implement
t
the correcti
ive action as advised by the l
learned NCST, the applicant
t
has approac
ched this Tribunal seeking th
he reliefs as quoted above.
4. Pursu
uant to notice issued by
this Tribunal, the official
l
respondent
ts and only private responden
nt no.7 have filed their reply
y
to which th
e applicant has also filed rejo
oinder.
5. Shri
Sagar Saxena, learned c
counsel for the applicant
t
submitted
that the respondents h
had acted arbitrarily and
d
discriminat
torily in denying the applic
cant his rightful promotion
n
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
MARG, NEW DELHI 110001, telephoneNumber=
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OA No.482 of 2015
and conseq
quential seniority to the po
ost of Area Organiser with
h
effect from
m 01.04.2007 against the v
vacancy year 2007–08. He
e
contended
that the applicant, who belo
ongs to the Scheduled Tribe
e
category, h
ad been subjected to repeat
ted supersession despite the
e
respondent
ts having earlier acknowled
dged the anomalies in the
e
assessment
t of his ACRs and having
taken steps to restore his
s
original sen
niority.
5.1 Learn
ned counsel also submitted
that the applicant ought to
have been
promoted on an ad hoc
basis to the post of Area
a
Organiser w
with effect from 01.10.2007
7 along with his junior, Shri
i
Sansar Cha
and (respondent no.3), again
nst the vacancies for the year
r
2007–08.
He contended that, pur
rsuant to the applicant's
s
representat
tions and the intervention
of the learned NCST, the
e
Ministry o
of Home Affairs (MHA), v
vide communication dated
d
29.01.2009
9, approved the applicant's
s promotion, and the SSB
Directorate
e General, by order dated
d 30.01.2009, restored his
original sen
niority. The applicant was th
hereafter regularly promoted
d
as Area Or
rganiser by order dated 25
5.02.2010, wherein he was
shown abov
ve Shri Sansar Chand at Sl. N
No.9. His position above the
e
said officer
and other juniors was also r
reflected in the seniority lists
for the year
rs 2009, 2010 and 2011, inclu
uding the seniority list as on
01.01.2011,
in which the applicant was p
placed at Sl. No. 17 and Shri
i
Sansar Cha
and (Respondent No.3) at Sl.
No. 18.
5.2 Learn
ned counsel further submitte
ed that the respondents had
d
themselves
acknowledged serious ano
omalies, undergrading and
d
unjustified
downgrading in the appli
icant's ACRs for the years
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
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2004–05 a
and 2005–06. In this regard
d, reference was made to the
e
SSB Direc
ctorate's communications
dated 08.02.2008 and
d
05.12.2008
8, whereby the Directorate h
had recommended that the
e
relevant AC
CR gradings be treated as up
pgraded. He argued that the
e
communica
ation of below-benchma
rk gradings issued on
n
10.05.2010
was belated and imprope
er, particularly because the
e
applicant h
ad already challenged the ad
dverse treatment of his ACRs
through re
epresentations dated 26.0
8.2008 addressed to the
e
Director G
General, SSB, and the Secr
retary, MHA. According to
o
learned cou
unsel, the official responden
nts could not disregard the
e
applicant's
earlier representations
and their own findings
concerning
the deficiencies in the ACR a
assessments.
5.3 Learn
ned counsel contended that
t the review DPC held on
n
30.09.2011
acted inconsistently and u
unlawfully in reconsidering
g
the applica
nt's case for the vacancy ye
ars 2007–08 and 2008–09
on the basis
s of the same ACR gradings
that had formed the subject
t
matter of th
he earlier proceedings. Learn
ned counsel submitted that,
whereas th
e respondents had earlier r
recommended that the ACR
R
gradings fo
or 2004–05 and 2005–06 be
e upgraded, the review DPC
C
treated the
grading for 2005–06 as “Av
verage” for the vacancy years
2007–08 a
nd 2008–09, but as “Good”
for the vacancy year 2009–
10. Learned
d counsel argued that the sam
me ACR could not rationally
y
be assigned
d different gradings for diff
ferent vacancy years in the
e
same revi
ew exercise without ade
equate justification. Such
h
contradicto
ory treatment, he urged, wa
as arbitrary, discriminatory
y
and contrar
ry to the principles of natural
l justice.
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
MARG, NEW DELHI 110001, telephoneNumber=
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5.4 Learn
ned counsel further submitte
ed that the MHA, in its note
e
dated 11.03
3.2008, had expressly obser
rved that the applicant had
d
been under
rgraded in the ACRs for 2004
4–05 and 2005–06 and that
t
the supervi
isory officers responsible fo
or the deficient assessment
t
should expl
lain the circumstances. The
MHA had also called upon
n
the SSB to i
indicate the action taken or p
proposed against the officers
concerned
and the steps contemplated
d to prevent bias in future
e
performanc
ce appraisals. He argued that
t, despite these observations
and the ea
arlier recommendations for
r upgrading the applicant's
s
ACRs, the
respondents reverted to th
he very gradings that had
d
caused his
s supersession, without a
adequately addressing the
e
acknowledg
ged deficiencies or explaining
g the reversal of their earlier
r
position.
5.5 Learn
ned counsel submitted that
t the review DPC and the
e
consequent
tial order dated 12.12.2011
1 resulted in the applicant
t
being place
ed below Shri Sansar Chand
and other officers junior to
him, notw
withstanding the earlier re
storation of his seniority.
Learned co
unsel contended that the ap
pplicant had effectively been
n
superseded
d for the same vacancy year,
2007–08, for a second time
e
on the bas
sis of the same ACR gradi
ings. According to learned
d
counsel, th
e respondents could not un
nsettle the seniority position
n
that had al
lready been restored and c
consistently reflected in the
e
subsequent
t seniority lists without co
gent reasons and a lawful
l
basis. Thus
s, the impugned action wa
as, therefore, stated to be
e
arbitrary, o
ppressive, discriminatory an
nd unsustainable in law.
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
MARG, NEW DELHI 110001, telephoneNumber=
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5.6 Learn
ned counsel also relied upon
n the assurance given by the
e
MHA to th
he learned NCST that the a
applicant's original seniority
y
would be r
restored and due weightage
would be given to it while
e
considering
g his regular promotion to t
the post of Area Organiser.
Reference w
was made to the MHA comm
munication dated 17.07.2009
and the SS
SB Directorate's compliance
e/action-taken report dated
d
30.01.2009
9 submitted before the learne
ed NCST. He argued that the
e
official resp
pondents had subsequently
y departed from their own
n
assurance a
and earlier decisions while
conducting the review DPC
C
on 30.09.2
2011. Such a reversal, witho
out properly explaining the
e
change in p
position or taking into accou
unt the earlier proceedings,
was conten
nded to be arbitrary and
contrary to the legitimate
e
expectation
n arising from the of
fficial respondents' own
n
communica
ations and actions.
5.7 Learn
ned counsel further contende
ed that the respondents had
d
failed to ap
pply the relevant instructions
s governing the preparation
n
and assessm
ment of ACRs, particularly
y in the case of employees
belonging t
to the Scheduled Castes and
d Scheduled Tribes. Reliance
e
was placed
upon the DoP&T’s instruct
tions dated 24.06.1985 and
d
21.08.1989
concerning the redressal of
grievances and the need for
r
special care
e in the matter of writing A
ACRs of SC/ST employees.
Reference w
was also made to the MHA i
instruction dated 16.11.2005
and the
applicable DoP&T inst
tructions concerning the
e
consideratio
on of below-benchmark g
gradings and relaxation or
r
concession
in promotion. Learned co
ounsel submitted that the
e
respondent
ts had failed to properly exa
amine the alleged anomalies
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
MARG, NEW DELHI 110001, telephoneNumber=
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19
OA No.482 of 2015
and unjusti
ified downgrading in the app
plicant's ACRs, as well as the
e
applicable s
safeguards and concessions
for an ST Officer(s), before
e
deciding his
s case in the review DPC.
5.8 Learn
ned counsel argued that the r
respondents' contention that
t
the applica
ant did not meet the presc
cribed benchmark of “Very
y
Good” for t
the vacancy years 2007–08
and 2008–09 could not be
e
accepted in
n isolation from the adm
mitted history of his ACR
R
assessment
ts. He submitted that the S
SSB Directorate had earlier
r
acknowledg
ged the anomalies in the AC
CRs for 2004–05 and 2005–
06 and had
d recommended that the rele
evant gradings be upgraded.
The applic
cant had thereafter been
granted promotion with
h
restoration
of his original seniority, a
and his name continued to
o
appear abov
ve Shri Sansar Chand (respo
ondent no.3) in the seniority
y
lists for 20
009, 2010 and 2011. In th
hese circumstances, learned
d
counsel con
ntended that the responden
nts could not rely upon the
e
same dispu
uted gradings to deny the app
plicant the seniority already
y
restored to
him.
5.9 Learn
ned counsel further subm
mitted that the applicant's
Scheduled
Tribe status had inadverten
ntly been omitted from the
e
order dated
d 12.12.2011 issued pursuant
t to the review DPC and was
s
corrected o
only by a subsequent orde
er dated 24.09.2012. This,
according t
to learned counsel, demons
strated that the applicant's
s
category st
tatus had not been appr
ropriately reflected in the
e
consequent
tial action. Learned coun
nsel contended that the
e
respondent
ts ought to have considered
d the applicable instructions
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
MARG, NEW DELHI 110001, telephoneNumber=
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20
OA No.482 of 2015
and conces
sions relating to SC/ST emp
ployees while examining his
s
eligibility fo
or promotion, instead of tre
eating his case solely on the
e
basis of the
disputed ACR gradings.
5.10 Learn
ned counsel placed parti
icular reliance upon the
e
proceedings
s before the learned NCS
ST. He submitted that the
e
Commissio
n had examined the issue of
the applicant's supersession
n
and seniori
ity and, by its order dated 19
.08.2014, directed the MHA
A
and the SS
SB to restore his original se
eniority against the vacancy
y
year 2007–
–08. Learned counsel also
referred to the observation
n
attributed
to the Vice-Chairman of t
the Commission that grave
e
injustice ha
ad been caused to the applic
cant despite his being an ST
T
officer. Lea
arned counsel argued that th
he respondents had failed to
o
take corre
ctive action in complianc
ce with the Commission's
observation
ns and that the applicant c
continued to be denied his
original se
eniority above Shri Sansar
r Chand with effect from
m
01.04.2007
7. The continued failure to
restore that position was,
therefore, c
contended to be illegal and un
njustified.
5.11 Learn
ned counsel also alleged discr
rimination by comparing the
e
applicant's
case with that of Shri M
M. Sunil Singh, Joint Area
a
Organiser.
He submitted that Shri M.
Sunil Singh had also been
n
superseded
d for promotion to the post
of Area Organiser by order
r
dated 01.10
0.2007, but was subsequen
ntly granted seniority with
h
effect from
m 01.04.2007 against the va
acancy year 2007–08. The
e
applicant, w
whose case had allegedly be
een considered and decided
d
earlier by
the MHA on 29.01.2009
9, was, however, assigned
d
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
MARG, NEW DELHI 110001, telephoneNumber=
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Item No..52/Court No.1
21
OA No.482 of 2015
notional se
eniority only with effect fro
om 01.04.2009 against the
e
vacancy y
year 2009–10. Learned c
counsel argued that this
s
differential
treatment, despite the
earlier restoration of the
e
applicant's
seniority and the official res
spondents' acknowledgment
t
of anomalie
es in his ACRs, was discrim
minatory and violative of the
e
principles o
of equality.
5.12 Lastly
y, learned counsel for the ap
pplicant submitted that the
e
impugned o
order dated 12.12.2011 could
d not be sustained because it
t
disregarded
d the official respondent
ts' earlier decisions, the
e
restoration
of the applicant's sen
niority, the acknowledged
d
anomalies
in his ACRs, the assuranc
e given before the learned
d
NCST and t
the subsequent directions iss
sued by the Commission. He
e
contended
that the respondents
had unjustifiably shifted
d
responsibili
ity to the review DPC wit
thout placing the complete
e
background
d and earlier decisions befor
re the competent authority.
The applica
ant, therefore, sought restora
ation of his original seniority
y
against the
e vacancy year 2007–08 wi
ith effect from 01.04.2007,
above Shri
i Sansar Chand (responden
nt no.3) and other officers
junior to h
him, together with all conse
equential benefits. Learned
d
counsel acc
cordingly prayed that the im
mpugned order be set aside
e
and the inst
tant OA be allowed.
6. Shri R
Rajpal Singh, learned counse
el for the official respondents
no.1 and 2
2 by referring to the reply f
filed on their behalf, raised
d
preliminar
ry objections by submittin
ng that the applicant, Shri
i
Shyam Sin
ngh, had approached this Tri
ibunal seeking restoration of
f
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
MARG, NEW DELHI 110001, telephoneNumber=
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Item No..52/Court No.1
22
OA No.482 of 2015
his origina
al seniority against the vaca
ancy year 2007–2008 with
h
effect from
m 01.04.2007, above Shri
Sansar Chand and other
r
officers sta
ated to be junior to him, as r
reflected in the seniority list
t
dated 01.
01.2011, along with conse
equential benefits. Learned
d
counsel co
ontended that the applicant h
had failed to implead all the
e
officers w
whose seniority and prom
motional rights would be
e
adversely
affected if the relief sough
ht in the instant OA were
e
granted. A
Accordingly, the OA was liab
ble to be dismissed for non-
joinder of
necessary parties.
6.1 Learn
ned counsel for the responde
ents further contended that
t
the applic
ant had no subsisting cause
e of action, as his grievance
e
had alread
dy been examined by the co
ompetent authorities and a
a
detailed re
eply had been communicat
ted to him and the learned
d
NCST vide
e letter dated 28.08.2014 (
( Annexure R/2 ). Learned
d
counsel a
alleged that the applicant
had suppressed the said
d
communic
cation while approaching
this Tribunal. On these
e
grounds, th
he respondents sought dism
issal of the OA with costs.
6.2 On m
merit, learned counsel submit
tted that the applicant, who
belongs t
o the Scheduled Tribe (S
ST) category, was initially
y
appointed
as Circle Organiser on 02.09
9.1982. He was promoted as
Sub Area O
Organiser with effect from 2
7.08.1990 and as Joint Area
a
Organiser
with effect from 12.08.20
004. He was subsequently
y
promoted
as Area Organiser on an ad
d hoc basis with effect from
m
30.01.200
9 and on a regular basis w
with effect from 25.02.2010.
Thereafter
r, he was granted notional p
romotion as Area Organiser
r
with effect
t from 01.04.2009.
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
MARG, NEW DELHI 110001, telephoneNumber=
5b491534ade0b015fafa6f7185daf00161f030b0bc4a2fa0c67dd30bd5b99ab9 Reason: I am the author of this document
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23
OA No.482 of 2015
6.3 Learn
ned counsel also submitted th
hat the applicant's name was
considered
d by the Selection Board o
on 07.03.2007 for ad hoc
c
promotion
n to the rank of Area Organis
ser against the vacancy year
r
2007–200
08. However, the Ministry
y of Home Affairs (MHA),
being the
competent authority, did no
ot approve his promotion at
t
that stage,
, resulting in his supersessio
on by certain officers junior
r
to him.
The applicant submitted
d a representation dated
d
05.12.200
7 against his supersession t
through the learned NCST,
which wa
as forwarded to the respo
ondents vide letter dated
d
12.12.2007
7. Upon reconsideration of th
he matter, the MHA, vide its
communic
cation dated 29.01.2009, ap
pproved the applicant's ad
d
hoc promo
otion as Area Organiser with
h immediate effect, without
t
any other
consequential benefits, and
d directed restoration of his
original s
seniority in the list of
ad hoc Area Organisers.
According
ly, the applicant was pro
omoted vide order dated
d
30.01.200
9, and his original seniority
y above Shri Sansar Chand
d
was restor
red at that stage.
6.4 Learn
ned counsel also submitte
ed that the SSB (Senior
r
Executive)
) Service Rules, 1977, as am
mended from time to time,
were de
-notified vide MHA o
order dated 16.07.2007.
Consequen
ntly, the DPCs for promotion
n of Joint Area Organisers to
o
the rank o
of Area Organiser for the
vacancy years 2006–2007,
2007–200
08 and 2008–2009 could no
ot be convened. The matter
r
was subse
equently taken up with the
MHA and the DoP&T for
r
regular pr
omotion of eligible Joint Ar
rea Organisers under a one-
time met
thod of appointment. A
According to the official
l
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
MARG, NEW DELHI 110001, telephoneNumber=
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Item No..52/Court No.1
24
OA No.482 of 2015
responden
nts, the DoP&T approved the
e filling of the posts of Area
a
Organiser
under the said method by
y considering the residency
y
period pre
escribed under the de-notified
d Recruitment Rules.
6.5 Learn
ned counsel also submit
tted that, pursuant to the
judgment
dated 05.01.2010 passed b
by this Tribunal in OA No.
2104/2009
9, Bakhtawar Singh an
nd Others v. Union of
f
India an
d Others , the de-notificatio
on of the Recruitment Rules
was withd
drawn vide MHA order date
ed 27.04.2010. Thereafter, a
a
review DP
PC was convened on 30.09.2
2011 to consider promotions
against yea
ar-wise vacancies from 2006
6–2007 to 2009–2010.
6.6 Learn
ned counsel further submitt
ted that the applicant was
found unfi
fit for promotion against the
e vacancy years 2007–2008
and 2008–
–2009 but was recommende
ed for promotion against the
e
vacancy ye
ear 2009–2010. Accordingl
ly, he was granted notional
promotion
n as Area Organiser with ef
ffect from 01.04.2009 vide
e
order dat
ted 12.12.2011 and was p
placed below the officers
recommen
nded for promotion against th
he earlier vacancy years.
6.7 The r
respondents’ learned couns
el also contended that the
e
prescribed
d benchmark for promoti
ion to the rank of Area
a
Organiser
was ‘Very Good’, wherea
as the applicant's relevant
t
ACR/APA
R gradings did not meet the
requisite benchmark for the
e
vacancy ye
ears 2007–2008 and 2008–
–2009. The gradings relied
d
upon by th
he respondents were as follow
ws:
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
MARG, NEW DELHI 110001, telephoneNumber=
5b491534ade0b015fafa6f7185daf00161f030b0bc4a2fa0c67dd30bd5b99ab9 Reason: I am the author of this document
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Item No..52/Court No.1
25
OA No.482 of 2015
Vacancy year of pro
R
omotion
ACR/APAR
year
Remarks
2009–10
2007–08 2008–09
2001–2002
2002–2003
2003–2004
2004–2005
2 Good —
3 Very Good Very Good
4 Very Good Very Good
5 Good Good
— —
d — —
d Very Good —
Good —
* Upgraded By
Review DPC as
‘Good’
ng Outstanding —
y
2005–2006
6 Average Average
*Average
2006–2007
2007–2008
7 — Outstandin
8 — —
Very Good —
6.8 The le
earned counsel for the resp
pondents submitted that the
e
grading of
f “Average” in the ACRs of a
an officer may not constitute
e
an adver
rse remark; however, it
t cannot be treated as
s
complimen
ntary either. Such gradi
ing reflects routine and
d
undistingu
uished performance, and
only performance above
e
average o
or of a noteworthy natur
re merits recognition and
d
favourable
e consideration for promotio
on. Learned counsel further
r
submitted
that the applicant’s senior
rity as Area Organiser was
s
revised pu
ursuant to the recommend
dation of the Review DPC,
which had
d found him unfit for prom
otion for the vacancy years
2007–08 a
and 2008–09.
6.9 Learn
ned counsel also further sub
bmitted that the applicant,
Area Orga
aniser, had represented his g
grievance before the learned
d
NCST. A
hearing was held on 19.06
6.2014 before learned Shri
i
Bheru Lal
Meena, Member of the learn
ned NCST, in the presence of
f
the applic
cant and representatives of
the MHA and the SSB. In
n
complianc
ce with the directions of th
he learned Commission, the
e
matter wa
s re-examined, and a reply w
was furnished to the learned
d
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
MARG, NEW DELHI 110001, telephoneNumber=
5b491534ade0b015fafa6f7185daf00161f030b0bc4a2fa0c67dd30bd5b99ab9 Reason: I am the author of this document
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Item No..52/Court No.1
26
OA No.482 of 2015
NCST as
well as to the applicant vi
de letter dated 28.08.2014
( Annexur
re R/2 ).
6.10 Learn
ned counsel further conte
ended that, although the
e
applicant
was eligible for promotio
on to the rank of Deputy
y
Inspector
General (DIG) for the vacan
ncy year 2013–14 under the
e
Recruitme
ent Rules (RRs), 2004, as am
mended in 2005, he became
e
ineligible
under the Recruitment
Rules, 2013, notified on
n
17.06.2013
3, which prescribed 20 years
s of Group ‘A’ service as the
e
eligibility
criterion for promotion to t
the rank of DIG. Under the
e
said Rules
s, he would have become el
ligible only for the vacancy
y
year 2019–
–20.
6.11 Learn
ned counsel also submitte
ed that, pursuant to the
e
directions
of the Hon’ble High Court o
of Delhi dated 21.04.2015 in
n
W.P. (C) N
No. 8908 of 2014, titled San
nsar Chand Rana & Ors.
v. Union
of India & Ors. , a protect
tion clause was incorporated
d
into the re
evised Recruitment Rules, 2
2013, vide notification dated
d
13.11.2015
. The said clause provided
d that the eligibility service
e
would rem
main unchanged for persons
holding the feeder posts of
f
Command
dant and Area Organiser
on a regular basis as on
n
17.06.2013
3, the date of publication
n of the principal Rules.
Pursuant
to the amended Recrui
itment Rules notified on
n
13.11.2015
, the applicant became eligib
ble for promotion to the rank
k
of DIG wit
th effect from that date, i.e.,
, for the vacancy year 2015–
16. Howev
ver, he could not be promote
ed during that vacancy year
r
owing to
the non-availability of vac
ancies earmarked for Area
a
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
MARG, NEW DELHI 110001, telephoneNumber=
5b491534ade0b015fafa6f7185daf00161f030b0bc4a2fa0c67dd30bd5b99ab9 Reason: I am the author of this document
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Item No..52/Court No.1
27
OA No.482 of 2015
Organisers
s. Subsequently, the DPC
convened on 28.04.2016
recommen
nded his promotion to the r
rank of DIG for the vacancy
y
year 2016–
–17. Accordingly, he was pro
omoted and assumed charge
e
of the pos
st of DIG in the forenoon
of 09.09.2016 ( Annexure
e
R/3 ).
6.12 Learn
ned counsel further pointe
ed out that the applicant
t
retired fro
om government service u
upon attaining the age of
f
superannu
uation in the afternoon of 30
.11.2016 ( Annexure R/4 ).
6.13 Learn
ned counsel also submitted
that, prior to the reporting
g
period 200
08–2009, only adverse rem
arks in ACRs were required
d
to be com
mmunicated to the concerned
d officer for representation.
The requir
rement to communicate bel
low-benchmark ACR/APAR
R
gradings w
was introduced by DoP&T O
OM dated 13.04.2010. Since
e
the applic
cant's initial ad hoc prom
motion was considered on
n
01.10.2007
7, the said instructions were
not applicable at that time.
6.14 Learn
ned counsel submitted that,
before the review DPC held
d
on 30.09
.2011, the applicant was
given an opportunity to
o
represent
against the relevant below
w-benchmark gradings. The
e
ACRs for
r 2001–2002, 2004–2005
5 and 2005–2006 were
e
communic
cated vide memorandum d
dated 10.05.2010. However,
according
to the respondents, only th
he ACR for 2005–2006 was
s
relevant fo
or the purpose of upgradati
ion in the review DPC. The
e
applicant's
s representation dated 30.06
6.2010 seeking upgradation
n
of his ACR
R grading for 2005–2006 w
was examined by the MHA
A
and reject
ted as devoid of merit. His
subsequent representation
n
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
MARG, NEW DELHI 110001, telephoneNumber=
5b491534ade0b015fafa6f7185daf00161f030b0bc4a2fa0c67dd30bd5b99ab9 Reason: I am the author of this document
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Item No..52/Court No.1
28
OA No.482 of 2015
dated 31.1
12.2010 was also rejected
vide memorandum dated
d
24.01.2011
1, on the ground that the
e matter had already been
decided by
y the Ministry.
6.15 The l
learned counsel denied th
he allegations of arbitrary
y
assessmen
nt, contradictory evaluation
n and underrating of the
e
applicant's
s performance. He submi
itted that the ACRs were
e
assessed a
at three levels, namely, the I
Initiating Officer, Reviewing
g
Officer and
d Accepting Officer, and that
t the gradings were awarded
d
after cons
sideration of his perform
mance during the relevant
t
periods. T
The ACR for the period 01.0
04.2005 to 03.01.2006 had
d
initially b
een graded ‘Good’ by the
Initiating Officer but was
s
downgrade
ed to ‘Average’ by the Revie
ewing Officer. According to
o
them, the
Reviewing Officer assessed
the applicant's performance
e
on the bas
sis of the entries recorded in
the relevant portions of the
e
ACR. Lea
rned counsel contended th
hat the overall grading of
f
‘Average’ w
was based on the applicant'
s performance and that the
e
difference
between the assessments o
of the Initiating Officer and
d
Reviewing
g Officer did not, by itself, est
tablish arbitrariness or bias.
Further, t
the Accepting Authority h
ad not accepted the final
l
grading, a
as the applicant's work ha
ad not been seen by that
t
authority f
for the requisite period of 9
90 days. Nevertheless, while
e
considerin
ng the applicant's case again
nst the vacancy year 2009–
2010, the
review DPC upgraded the gr
rading for 2005–2006 from
m
‘Average’ t
to ‘Good’ for the purpose of
that DPC alone. The official
l
responden
nts’ counsel maintained tha
at such limited upgradation
n
did not alt
ter the original ACR record o
or confer any entitlement to
o
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OA No.482 of 2015
promotion
n against the earlier vacancy y
years.
6.16 The o
official respondents’ learned
counsel also submitted that
t
the applic
cant's original seniority abo
ove Shri Sansar Chand had
d
been resto
ored pursuant to the MHA's
approval dated 29.01.2009
in the list
of ad hoc Area Organisers
. However, after the review
w
DPC asses
ssed the applicant as ‘unfit’
’ for promotion against the
e
vacancy y
ears 2007–2008 and 2008
8–2009, his placement was
s
determine
ed on the basis of the vacanc
cy year against which he was
found ‘fit’
for promotion.
6.17 The o
official respondents’ counsel
denied that they had failed
d
to take co
orrective action or had vi
olated the earlier decision
n
concerning
g the applicant's ad hoc pr
romotion. They maintained
d
that the s
subsequent placement of th
he applicant below officers
s
empanelle
ed for promotion against e
arlier vacancy years was a
a
consequen
nce of the review DPC's asses
ssment and not an arbitrary
y
alteration
of his seniority.
6.18 The o
official respondents’ counse
el denied the allegation that
t
the applica
ant's status had been chang
ged from Scheduled Tribe to
o
General ca
ategory. He submitted that th
he applicant's ST status had
d
been main
ntained in the departmenta
al service records and had
d
been taken
n into account while conven
ning the DPCs. However, he
e
admitted t
that the applicant's ST status
s had inadvertently not been
n
reflected i
in the promotion order date
ed 12.12.2011. The omission
n
was subse
equently rectified by issuin
ng a modified order dated
d
24.09.201
2. According to the respo
ondents, the omission was
s
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OA No.482 of 2015
merely a c
clerical error and did not aff
fect the applicant's category
y
status or th
he consideration of his case f
for promotion.
6.19 The o
official respondents’ counse
el denied the allegation of
f
discrimina
ation and submitted that
the applicant's case was
distinguish
hable from that of Shri M.
Sunil Singh, a former Area
a
Organiser.
. He explained that Shri
M. Sunil Singh had been
n
considered
d for ad hoc promotion agai
inst the vacancy year 2006–
2007 but
could not be promoted at
that stage for want of the
e
prescribed
d benchmark of ‘Very Good’.
. His case was subsequently
y
reconsider
red, and he was promoted on
n an ad hoc basis with effect
t
from 05.06
6.2009 against the vacancy y
year 2007–2008. During the
e
review DP
PC held on 30.09.2011, S
Shri M. Sunil Singh was
considered
d for the vacancy year
2006–2007 but was not
t
recommen
nded for promotion agai
inst that year. He was
s
subsequen
ntly granted notional pro
omotion with effect from
m
01.04.200
07 against the vacancy year
2007–2008, when he was
found to h
have attained the prescribed
benchmark. In contrast, the
e
applicant
was found ‘unfit’ for prom
motion against the vacancy
y
years 200
07–2008 and 2008–2009 a
and was recommended for
r
promotion
n only against the vacancy
year 2009–2010, after the
e
review DP
PC upgraded his ACR gradin
ng for 2005–2006 to ‘Good’
’
for that pu
urpose. Therefore, he conten
nded that the two cases were
e
not compa
arable and that no case of dis
scrimination was made out.
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OA No.482 of 2015
6.20 Lastly
y, the learned counsel fo
or the official respondents
contended
d that the applicant is not ent
titled to the reliefs as sought
t
in the pre
esent OA, which is devoid
of merit and liable to be
e
dismissed
with costs.
7. Shri
Padma Kumar S, learne
ed counsel appearing for
r
responden
nt no.7 by referring to the rep
ply filed on his behalf, raised
d
a prelimin
nary objection regarding t
the maintainability of the
e
present OA
A, contending that the appli
icant had sought restoration
n
of his se
eniority without challengi
ing the rejection of his
candidatur
re by the DPC for the va
acancy years 2007–08 and
d
2008–09.
He submitted that the app
plicant’s placement lower in
n
the seniori
ity of regular Area Organise
ers was a consequence of his
s
being foun
nd ‘unfit’ by the DPC agains
t the prescribed benchmark
k
for regular
r promotion.
7.1 The
learned counsel furthe
er submitted that the
e
recommen
ndations of the learned NCS
ST were recommendatory in
n
nature an
nd not binding upon the G
Government. Therefore, the
e
applicant
could not seek redressal of
his grievance solely on the
e
basis of s
such recommendations. He
e also contended that this
s
Tribunal w
was the Court of first instanc
ce for adjudication of service
e
matters co
oncerning civilian employee
es and persons holding civil
l
posts unde
er the Union Government an
nd notified organisations.
7.2 With
regard to the facts of the
e case, the learned counsel
l
submitted
that certain averments m
made by the applicant were
e
matters of
f record, while others either
r required no reply or were
e
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Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
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OA No.482 of 2015
matters t
to be addressed by the
official respondents. The
e
averments
s concerning the application
of reservation in promotion
n
were dispu
uted, and he contended that
the issue was required to be
e
examined
in the light of the law laid do
own by the Hon’ble Supreme
e
Court in M
M. Nagaraj v. Union of I
India reported in (2006) 8
SCC 212.
7.3 Learn
ned counsel further submitt
ed that the communication
n
relied upo
on by the applicant as Anne
exure A-15 was merely an
n
internal co
ommunication initiated by a
a Section Officer and did not
t
constitute
an order or a finding by an
ny competent authority. The
e
learned co
ounsel contended that the ap
pplicant’s grievance initially
y
pertained
to the non-grant of ad hoc pr
romotion to the post of Area
a
Organiser.
. Upon grant of such prom
motion, the decision of the
e
MHA, at
Annexure A-16 , and the
e consequential promotion
n
order at A
Annexure A-17 , expressly sti
ipulated that:
1. The pr
romotion was purely ad hoc
c and would not confer any
y
right to
o regular promotion or conse
equential benefits.
2. The ad
d hoc promotion would c
continue only until further
r
orders.
.
3. The G
overnment reserved the ri
ight to cancel the ad hoc
c
promot
tion at any time and revert
t the employee to the post
t
from w
which he had been promoted.
7.4 On th
he question of the assurance
e allegedly given before the
e
learned NC
CST, the learned counsel co
ontended that any assurance
e
contrary to
o the applicable law, statutor
ry provisions or Government
t
instruction
ns could not operate as
an estoppel against the
e
Governme
ent. He further submitte
ed that the reasons for
r
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OA No.482 of 2015
communic
cating the ACRs to the ap
pplicant had already been
n
explained
to his counsel through the re
eply dated 08.08.2014 to the
e
legal notic
ce dated 02.05.2014.
7.5 The l
earned counsel further con
ntended that the advantage
e
initially ac
ccrued to the applicant was
the result of an illegal and
d
untenable
procedure adopted for h
olding the DPCs. He also
o
submitted
that the Review DPC
had been convened in
n
implement
tation of the order passed b
by this Tribunal in OA No.
2104/2009
9, which had not been set as
side by any higher court and
d
was, theref
fore, required to be impleme
ented.
7.6 With
regard to the applicant’s clai
im concerning reservation in
n
promotion
n, private respondent No.7
7 submitted that the issue
e
required e
examination by the official re
espondents in the light of the
e
law laid do
own in M. Nagaraj (supra)
). He further contended that
t
the applic
cant’s status had subsequent
tly been corrected and that
t
the prescr
ribed benchmark for prom
motion to the post of Area
a
Organiser
was admittedly “Very G
Good”. Consequently, the
e
applicant c
could not claim any enforcea
able right on the basis of the
e
criteria ad
dopted by the official respon
ndents for granting ad hoc
c
promotion
n.
7.7 The l
earned counsel also submit
tted that the applicant had
d
derived a
an undue advantage from
m an untenable procedure
e
followed i
n conducting the DPCs and
d could not be permitted to
o
retain such
h benefit merely because it h
had accrued to him under a
a
process su
ubsequently found unsustain
nable. He also reiterated that
t
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no estoppe
el could operate against the
law. The recommendations
of the lear
rned SC/ST Commissions, b
eing non-binding in nature,
could not
independently confer upo
on the applicant a right to
o
restoration
n of seniority.
7.8 Lastly
y, learned counsel for p
private respondent No. 7
7
submitted
that none of the grounds r
raised by the applicant was
s
legally sus
stainable or sufficient to just
tify the reliefs sought for in
n
the instan
nt OA. Accordingly, he pray
yed that the instant OA be
e
dismissed
as being not maintainable an
nd devoid of merit.
8. In r
rejoinder, the applicant’s
counsel reiterated the
e
submission
ns as noted above.
9. Havin
ng considered the pleadin
ngs, the rival submissions
s
advanced
by learned counsel for the
parties, and the documents
s
placed on
record, the following issues a
arise for our adjudication:
(i) Whethe
er the applicant is entitled to
o restoration of his seniority
y
agains
st the vacancy year 20
007–08 with effect from
m
01.04
.2007, notwithstanding the s
subsequent review DPC held
d
on 30
.09.2011?
(ii) Wheth
her the MHA decision d
dated 29.01.2009 and the
e
conse
quential SSB order dated
30.01.2009 restoring the
e
applic
cant's original seniority in
n the list of ad hoc Area
a
Organ
nisers conferred upon him a
an enforceable right to claim
m
the sa
ame placement in the regular
r cadre?
(iii) Whet
ther the review DPC's asses
ssment of the applicant as
s
‘unfit’
for promotion against the v
vacancy years 2007–08 and
d
2008–
–09 is vitiated by arbitrarin
ness, inconsistent treatment
t
of his
ACRs, or failure to consider
r the applicable instructions
s
conce
rning Scheduled Tribe emplo
oyees?
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(iv) Whet
ther the proceedings of
the learned NCST dated
d
19.08.
.2014, the applicant's claim
of parity with Shri M. Sunil
l
Singh
, and the objections co
oncerning non-joinder of
f
necess
sary parties and maintainab
ility warrant interference by
y
this T
ribunal?
10. At th
he outset, we deem it ap
ppropriate to observe that
t
promotion
n to a selection post is g
governed by the applicable
e
Recruitme
ent Rules, the prescribed
eligibility conditions and
d
benchmark
k, and the assessment
undertaken by the duly
y
constituted
d DPC. Seniority in the feed
der grade, by itself, does not
t
confer an
indefeasible right to promot
tion. An eligible employee is
s
entitled to
o fair and lawful considera
ation, but not to automatic
c
promotion
n merely because an office
er junior to him has been
n
promoted.
.
10.1 The
scope of judicial review in
n matters concerning DPC
C
recommen
ndations is limited. The Tr
ribunal does not sit as an
n
appellate
authority over the assessme
ent of the DPC and cannot
t
substitute
its own evaluation of an off
ficer's service record for that
t
of the co
ompetent selection body.
Interference is, however,
,
warranted
d where the assessment is s
hown to be contrary to the
e
applicable
rules or instructions, vitiate
ed by mala fides, founded on
n
irrelevant
considerations, or otherwise
e arbitrary and procedurally
y
unfair.
10.2 Hav
ving regard to the factual ma
atrix of the case, we deem it
t
appropriat
te to refer the decision of t
the Hon’ble Supreme Court
t
in Nirma
al Chandra Sinha v. Un
nion of India , reported in
n
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OA No.482 of 2015
(2008) 14
SCC 29, wherein the Hon’b
ble Supreme Court observed
d
as under:
“3. Ap
Railwa
appoin
promo
Mecha
promo
claime
benefit
Tribun
partial
ppellant, Nirmal Chandra Sinh
ha belongs to the Indian
neers (Irsme) having been
ay Service of Mechanical Engin
nted on 2-5-1958. When his turn
otion as General Manager, he
anical Engineer of South-Eas
came for consideration for
e was working as Chief
stern Railway. He was
anager on 29-11-1996. He
-3-1996 with consequential
oted to the post of General Ma
d notional promotion w.e.f. 13-
ts. His OA was rejected by th
nal, but against that order he filed
he Central Administrative
d a writ petition which was
lly allowed by the High Court.
4. Aga
filed b
Union
inst the aforesaid judgment of th
both by appellant Nirmal Chan
he High Court appeals were
ndra Sinha as well as the
of India.
5. In t
ground
petition
w.e.f. 1
has wr
contest
appeal
Court
should
1996 w
the appeal filed by appellant N
d taken was that the High Court
Nirmal Chandra Sinha, the
t partially allowed the writ
n by giving him notional prom
13-3-1996 with consequential be
rongly rejected his prayer that
ting private Respondents 3 and 4
l filed by the Union of India it
otion as General Manager
enefits, but the High Court
he should be senior to the
4. On the other hand, in the
was alleged that the High
nt Nirmal Chandra Sinha
neral Manager w.e.f. 13-3-
wrongly directed that appellan
d be notionally promoted as Gen
with consequential benefits.
6. We
Chand
dismiss
Appeal
are of the opinion that the ap
dra Sinha being Civil Appeal No. 8
ppeal of appellant Nirmal
8058 of 2001 deserves to be
e Union of India being Civil
e allowed.
sed while the appeal filed by the
l No. 8059 of 2001 deserves to be
7. It h
promo
and n
creati
[1989
Uttara
: (200
A.P. [
ATC 9
SCC 73
as been held in a series of deci
otion takes effect from the
not from the date of occu
ion of the post vide Union o
isions of this Court that a
date of being granted
urrence of vacancy or
of India v. K.K. Vadera
CC (L&S) 127] , State of
arma [(2007) 1 SCC 683
Supp (2) SCC 625 : 1990 SC
anchal v. Dinesh Kumar Sha
07) 1 SCC (L&S) 594] , K.V.
[(1988) 2 SCC 201 : 1988 SC
94] , Sanjay K. Sinha-II v. St
734 : 2005 SCC (L&S) 169] , et
Subba Rao v. Govt. of
CC (L&S) 506 : (1988) 7
tate of Bihar [(2004) 10
tc.
8. Lear
relied o
[(1997)
are of
case th
Genera
tenure
two ye
promo
which
conside
rned counsel for appellant Nirma
al Chandra Sinha, however,
on a decision of this Court in Uni
) 8 SCC 89] . We have carefully p
ion of India v. B.S. Agarwal
perused the decision and we
the opinion that the said decision
he facts were that, under the rele
n is distinguishable. In that
evant rule for promotion as
al Manager it was necessary to
o have at least two years'
on the lower post. The respond
ears' tenure, yet this Court hel
otion since he had been empan
dent did not actually have
ld that he was eligible for
nelled and the vacancy on
he should be promoted had occur
eration for promotion.
rred before two years of his
9. In o
Agarw
circum
but it c
our opinion, the aforesaid decisio
wal [(1997) 8 SCC 89] was
mstances of that case and on hum
on in Union of India v. B.S.
s given on the special
manitarian considerations,
cannot be said to be a precedent
t for other cases. When the
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OA No.482 of 2015
rule re
person
rule ca
in two
decisio
respon
but he
promo
aforesa
equires two years' actual service
n can be considered for promotion
e in the lower post before a
n as General Manager, that
g a person who has not put
annot be violated by considering
years' service in the lower post.
on in Union of India v. B.S. Agar
ndent had not actually been prom
Moreover, in the aforesaid
rwal [(1997) 8 SCC 89] the
moted as General Manager,
e only claimed that he was elig
otion as General Manager. T
gible to be considered for
This fact also makes the
aid decision distinguishable.
10. In
promo
he shou
conseq
to him
not rele
the present case, appellant Ni
oted as General Manager on 29-
irmal Chandra Sinha was
-11-1996, but he claims that
uld be deemed to have been prom
quential benefits. We are afraid th
moted w.e.f. 13-3-1996 with
his relief cannot be granted
of occurrence of vacancy is
. It is settled law that the date o
evant for this purpose.”
(emphasis supplied)
10.3 Likew
wise, in Dev Dutt v. Uni
ion of India , reported in
n
(2008) 8 S
SCC 725, which is also relev
vant to refer keeping in view
w
the factua
al matrix of the present c
case, in which the Hon’ble
e
Supreme C
Court held that below-bench
mark ACR gradings must be
e
communic
cated to the concerned emp
ployee to enable an effective
e
representa
ation. The principle was fur
rther considered in Abhijit
t
Ghosh Da
astidar v. Union of India
a , reported in (2009) 16 SCC
C
146. These
e decisions establish that an
officer cannot be denied fair
r
considerat
tion by relying upon an unc
communicated grading that
t
adversely a
affects his promotion prospe
ects.
10.4 The a
above noted principles must b
be applied to the facts of the
e
present ca
ase without confusing the ap
pplicant's entitlement to fair
r
considerat
tion with an automatic entitl
lement to promotion against
t
the vacanc
cy year 2007–08 for the post
t in question.
11. The a
applicant's principal submis
ssion is that his case had
d
already be
een examined by the MHA, w
which, by its decision dated
d
29.01.200
9, approved his ad hoc
promotion and directed
d
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
MARG, NEW DELHI 110001, telephoneNumber=
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OA No.482 of 2015
restoration
n of his original seniority.
Pursuant thereto, the SSB
B
Directorat
te issued the order dated 30
0.01.2009, and the applicant
t
was subse
equently granted regular p
promotion by order dated
d
25.02.2010
0, in which he was placed
d above Shri Sansar Chand
d
(responde
nt no.3). The applicant acco
ordingly contended that the
e
responden
nts could not subsequently
place him below the said
d
officer thro
ough the order dated 12.12.2
2011.
11.1 We fi
ind that the documents rel
lied upon by the applicant
t
establish t
that his grievance concerning
g the initial denial of ad hoc
c
promotion
n was examined by the com
mpetent authority and that
t
corrective
action was taken. The order
r dated 30.01.2009 restoring
g
his seniori
ity in the list of ad hoc Area
a Organisers and the regular
r
promotion
n order dated 25.02.2010, fo
ollowed by the seniority lists
s
for 2009,
2010 and 2011, are mater
rial circumstances that the
e
responden
nts were required to t
take into account while
e
reconsider
ring his case.
11.2 Never
rtheless, the legal effect of t
the earlier decision must be
e
determine
ed with reference to its actu
ual terms and the context in
n
which it w
was issued. According to t
the respondents, the MHA
A
decision d
dated 29.01.2009 approve
ed the applicant's ad hoc
c
promotion
n without conferring any ot
ther consequential benefits.
.
The ad ho
oc promotion order also st
tipulated that it would not
t
confer a ri
ght to regular promotion and
d could be withdrawn.
11.3 The r
restoration of seniority in
the ad hoc list, therefore,
,
cannot aut
tomatically be equated with
a final determination of the
e
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
MARG, NEW DELHI 110001, telephoneNumber=
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OA No.482 of 2015
applicant's
s inter se seniority in th
he regular cadre for every
y
subsequen
nt vacancy year. The
two exercises must be
e
distinguish
hed. The earlier decision set
ttled the applicant's claim in
n
the contex
xt of the ad hoc promotion th
hen under consideration; the
e
review DP
PC dated 30.09.2011 was
convened subsequently to
o
undertake
year-wise consideration for
r regular promotion against
t
vacancies p
pertaining to 2006–07 to 20
009–10.
11.4 At th
he same time, the respond
dents cannot disregard the
e
earlier dec
cision as though it had neve
er been made. The fact that
t
the applic
cant was granted regular p
promotion by order dated
d
25.02.2010
0 and was consistently place
ed above Shri Sansar Chand
d
(responde
nt no.3) in the seniority list
ts issued thereafter required
d
the respon
ndents to explain the legal b
basis on which that position
n
was altere
ed. The mere statement tha
at a review DPC had been
n
convened
does not, by itself, answer
whether the consequential
l
alteration
of seniority was consistent w
with the applicable rules and
d
the earlier
r orders.
11.5 We, t
therefore, hold that the ord
ders dated 30.01.2009 and
d
25.02.2010
0 do not, merely by th
eir existence, conclusively
y
establish
the applicant's right to
o regular seniority from
m
01.04.200
07. However, they constitute m
material orders whose scope
e
and legal e
effect were required to be co
onsidered while determining
g
his placem
ment pursuant to the review D
DPC.
12. The of
fficial respondents have exp
plained that the review DPC
C
was conve
ened following the withdraw
wal of the de-notification of
f
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
MARG, NEW DELHI 110001, telephoneNumber=
5b491534ade0b015fafa6f7185daf00161f030b0bc4a2fa0c67dd30bd5b99ab9 Reason: I am the author of this document
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the relevan
nt Recruitment Rules and in
n the context of the decision
n
of this Tri
ibunal dated 05.01.2010 in
n Bakhtawar Singh and
d
Others v
v. Union of India and O
Others , OA No. 2104/2009.
.
According
to them, the applicant was
s found unfit for promotion
n
against the
e vacancy years 2007–08 an
nd 2008–09 because he did
d
not meet
the prescribed benchmark
k of “Very Good”, and was
s
found fit o
only against the vacancy year
2009–10.
12.1 The a
applicant, on the other hand
, has relied upon the earlier
r
communic
cations of the SSB Directo
orate and the MHA, which
h
recorded
concerns regarding the as
ssessment of his ACRs for
r
2004–05
and 2005–06. In particular
r, the MHA communication
n
dated 05
5.12.2008 noted that the
e Reviewing Officer had
d
downgrade
ed the grading for 2005–06
6 from “Good” to “Average”
”
without s
ufficient supporting reason
ns and requested that the
e
applicant's
s case for ad hoc promotion
n be considered. The MHA
A
note dated
d 11.03.2008 had also rais
sed concerns regarding the
e
assessmen
nt of the relevant ACRs. Thes
se documents lend substance
e
to the app
plicant's contention that his e
earlier supersession was not
t
a matter th
hat had remained wholly une
examined by the authorities.
.
However,
the fact that deficiencies w
were identified in the ACR
R
assessmen
nt for the purpose of the ear
rlier ad hoc promotion does
s
not, witho
out more, establish that the
e review DPC's subsequent
t
assessmen
nt for regular promotion wa
as necessarily unlawful. It is
s
necessary
to examine the precise tre
eatment of the ACRs in the
e
review exe
ercise and the reasons for the
e different outcomes.
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
MARG, NEW DELHI 110001, telephoneNumber=
5b491534ade0b015fafa6f7185daf00161f030b0bc4a2fa0c67dd30bd5b99ab9 Reason: I am the author of this document
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12.2 The o
official respondents' own ta
abulation, as quoted above,
,
indicates t
that the ACR for 2005–06 w
was treated as “Average” for
r
the vacan
ncy years 2007–08 and 2
2008–09, whereas it was
s
upgraded t
to “Good” for the vacancy ye
ear 2009–10 for the purpose
e
of that DP
PC. The official respondents e
explain that the upgradation
n
was limite
d to the latter exercise and d
did not alter the original ACR
R
record.
12.3 We o
observe that the fact that th
he same ACR was taken into
o
account in
n different five-year assessm
ment periods does not, by
y
itself, esta
ablish illegality. The overall
suitability of an officer may
y
differ dep
pending upon the relevant
assessment period and the
e
other ACR
Rs taken into consideration. E
Equally, however, where the
e
same entr
ry is treated differently in s
successive assessments, the
e
official re
espondents must be able
to demonstrate that the
e
difference
was based on a rational a
and permissible assessment,
,
rather than
n an arbitrary departure from
m the earlier decision.
12.4 In t
the present case, the reco
ord, as reproduced in the
e
pleadings,
indicates that the ACR fo
r 2005–06 was specifically
y
considered
d for upgradation while asse
essing the applicant against
t
the vacanc
cy year 2009–10. It does not
t, by itself, establish that the
e
review DP
PC was legally bound to
assign the same overall
l
assessmen
nt to the applicant for every
y vacancy year. Nor does it
t
establish t
that the earlier decision con
ncerning ad hoc promotion
n
conclusive
ely determined his suitabil
lity for regular promotion
n
against the
e vacancy years 2007–08 and
d 2008–09.
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
MARG, NEW DELHI 110001, telephoneNumber=
5b491534ade0b015fafa6f7185daf00161f030b0bc4a2fa0c67dd30bd5b99ab9 Reason: I am the author of this document
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12.5 The a
applicant was communicated
d the relevant ACR gradings
s
vide mem
orandum dated 10.05.2010
and pursuant to which, he
e
had subm
mitted a representation da
ated 30.06.2010. His said
d
representa
ation was considered by th
he competent authority and
d
rejected; h
his subsequent representatio
on dated 31.12.2010 was also
o
rejected o
n 24.01.2011. Thus, the pre
esent case is distinguishable
e
from one i
in which an employee is den
nied promotion on the basis
s
of a below
w-benchmark entry that wa
s never communicated and
d
against wh
hich no opportunity to repres
sent was afforded.
12.6 Neve
rtheless, communication of
f an ACR and rejection of a
a
representa
ation do not place the un
nderlying decision beyond
d
judicial re
eview. Where an employe
e specifically challenges a
a
below-ben
nchmark entry on the groun
nd that it was downgraded
d
without r
easons, the competent au
uthority must consider the
e
representa
ation fairly, in accordan
nce with the applicable
e
instruction
ns and the principles laid d
down in Dev Dutt (supra).
.
However,
the applicant has not ch
hallenged the said decision
n
rejecting
the aforesaid representatio
ons before the competent
t
forum, a
and the said decision
has, therefore, remained
d
unchalleng
ged till date.
12.7 The
MHA's earlier observation
concerning the absence of
f
reasons fo
r downgrading the 2005–06
6 ACR is, therefore, relevant.
.
However,
the material reproduced be
efore us does not establish
h
that the re
ejection of the applicant's sub
bsequent representation was
s
itself vitiat
ted by mala fides, considerat
tion of irrelevant material, or
r
a specific b
breach of a binding instruct
ion. Further, the applicant's
s
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
MARG, NEW DELHI 110001, telephoneNumber=
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OA No.482 of 2015
commenda
ation certificate dated 24.0
03.2005 and his assertions
s
regarding
his actual performance may
y support his grievance, but
t
they cann
not, by themselves, subs
stitute for the prescribed
d
assessmen
nt of his service record by the
e DPC.
12.8 Acco
rdingly, on the material se
et out in the pleadings, the
e
allegation
of contradictory treatme
ent of the ACRs, though
h
deserving
scrutiny, does not by itsel
lf establish that the review
w
DPC's asse
essment was legally unsustai
nable.
13. The a
applicant has placed consi
iderable reliance upon the
e
proceeding
gs of the learned NCS
ST, contending that the
e
Commissio
on had examined the entire
controversy in the presence
e
of represe
ntatives of the MHA and th
he SSB and had advised the
e
responden
nts to correct the anomaly in
n his seniority. According to
o
him, the
respondents' failure to ac
ct upon those proceedings
s
constitutes
s a further instance of arbitra
ary treatment.
13.1 We
have carefully considere
d the proceedings dated
d
19.08.2014
4. The learned Commissio
n took note of the earlier
r
decision o
of the MHA dated 29.01.2
2009, the SSB order dated
d
30.01.200
9 restoring the applicant's
seniority in the ad hoc list,
,
and the su
ubsequent seniority lists in
which he was placed above
e
Shri Sansa
ar Chand. The Commission
accordingly considered that
t
the supers
session reflected in the orde
er dated 12.12.2011 required
d
examinatio
on and corrective action.
13.2 The p
proceedings of the learned C
ommission are undoubtedly
y
relevant. T
They demonstrate that the ap
pplicant's grievance was not
t
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
MARG, NEW DELHI 110001, telephoneNumber=
5b491534ade0b015fafa6f7185daf00161f030b0bc4a2fa0c67dd30bd5b99ab9 Reason: I am the author of this document
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OA No.482 of 2015
merely an
unsupported personal alleg
gation and that the apparent
t
inconsisten
ncy between the earlier o
orders and the subsequent
t
placement
t deserved consideration by
y the competent authorities.
.
The officia
al respondents were expect
ted to examine the learned
d
Commissio
on's observations fairly and
d communicate a reasoned
d
decision, w
which they have done.
13.3 Howe
ever, the constitutional func
ctions of the learned NCST
T
under Art
ticle 338A do not make
it an adjudicatory forum
m
empowere
ed to determine inter se sen
niority or issue binding and
d
executable
e decrees in service disputes.
. Its recommendations must
t
be consid
dered in accordance with
h law, but they do not
t
independe
ently confer a right to promo
otion or seniority contrary to
o
the applica
able recruitment rules.
13.4 Thus,
, we observe that the procee
edings of the learned NCST
T
cannot, b
by themselves, furnish the
e legal basis for directing
g
restoration
n of the applicant's se
niority with effect from
m
01.04.200
07. The applicant must est
tablish that the impugned
d
placement
t is inconsistent with the
applicable service rules or
r
otherwise
suffers from a legally sustain
nable infirmity.
13.5 We f
further observe that the res
spondents have relied upon
n
their comm
munication dated 28.08.20
014, stating that the matter
r
had been r
re-examined and that the ap
pplicant's placement resulted
d
from the r
review DPC's assessment. Th
he applicant's allegation that
t
his grievan
nce remained unresolved m
must, therefore, be examined
d
in the ligh
ht of the substantive legality
y of that assessment rather
r
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
MARG, NEW DELHI 110001, telephoneNumber=
5b491534ade0b015fafa6f7185daf00161f030b0bc4a2fa0c67dd30bd5b99ab9 Reason: I am the author of this document
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OA No.482 of 2015
than solel
ly on the ground that the
e learned Commission had
d
recommen
nded corrective action.
14. The ap
pplicant has also relied upo
on the case of Shri M. Sunil
l
Singh, con
ntending that the latter was
granted notional promotion
n
with effect
t from 01.04.2007 against
the vacancy year 2007–08,
,
whereas t
the applicant was granted
such promotion only with
h
effect from
m 01.04.2009 against the v
vacancy year 2009–10. The
e
applicant’s
s argument is that the
differential treatment is
s
particularl
ly unjustified because his ca
ase had been considered by
y
the MHA o
on 29.01.2009.
14.1 The o
official respondents have ex
xplained that Shri M. Sunil
l
Singh's ca
se was assessed separately b
by the review DPC and that
t
he was fou
und fit against the vacancy
year 2007–08, whereas the
e
applicant w
was found unfit against the v
vacancy years 2007–08 and
d
2008–09.
14.2 The
principle of equality under
r Articles 14 and 16 of the
e
Constitutio
on requires that similarly sit
tuated employees be treated
d
alike. How
wever, a claim of discrimina
ation cannot be established
d
merely by
showing that another emplo
oyee was promoted earlier. It
t
must be d
emonstrated that the relevan
nt employees were similarly
y
situated i
in all material respects,
including their eligibility,
,
assessmen
nt periods, service records an
nd the applicable promotion
n
criteria. In
n the present case, the app
plicant has relied upon the
e
earlier co
nsideration of his own ca
ase by the MHA and the
e
restoration
n of his ad hoc seniority
. Those circumstances are
e
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
MARG, NEW DELHI 110001, telephoneNumber=
5b491534ade0b015fafa6f7185daf00161f030b0bc4a2fa0c67dd30bd5b99ab9 Reason: I am the author of this document
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OA No.482 of 2015
relevant, b
but they do not, without ex
xamination of the respective
e
DPC recor
rds and the applicable crite
eria, establish that Shri M.
.
Sunil Sing
gh and the applicant were id
dentically placed for regular
r
promotion
n against the vacancy year 20
007–08.
14.3 The
respondents have specifica
ally attributed the different
t
outcomes
to the assessments recorde
ed by the review DPC. No
o
material r
reproduced in the pleading
gs establishes that the DPC
C
applied a
different benchmark to th
he two officers or that the
e
applicant
was denied a benefit grant
ted to Shri M. Sunil Singh
h
despite an
n identical assessment of the
eir suitability. We, therefore,
,
find that t
the applicant has not establ
lished the necessary factual
l
foundation
n for a finding of discriminat
tion solely on the basis of the
e
different d
dates of notional promotion.
15. The ap
pplicant has contended that
t his Scheduled Tribe status
s
was not co
orrectly reflected in the orde
er dated 12.12.2011 and was
s
restored
only by the subsequent
order dated 24.09.2012.
.
Applicant‘
s argument is that the omis
ssion indicates that his case
e
was not
considered in accordance
with the safeguards and
d
concession
ns applicable to Scheduled Tr
ribe employees.
15.1 The r
espondents have admitted t
that the applicant's category
y
was inadv
vertently omitted in the orde
er dated 12.12.2011 and that
t
the omiss
sion was corrected by t
he modified order dated
d
24.09.201
2. They maintained that the
e error was clerical and did
d
not affect t
the applicant's consideration
n by the DPC.
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
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15.2 The o
omission of the applicant's ca
ategory in the said order was
s
an avoidab
ble administrative lapse. Ne
evertheless, the subsequent
t
correction
of the entry means that the
omission, by itself, does not
t
establish
that the applicant was tre
eated as belonging to the
e
General ca
ategory while his suitability w
was assessed.
15.3 The a
applicant has also relied up
pon the DoP&T instructions
s
dated 10.0
04.1989 and 03.10.2000 co
ncerning the assessment of
f
SC/ST can
ndidates for promotion. The
e communication of the SSB
B
Directorat
te dated 08.01.2008,
as noted above, itself
f
acknowled
dged the relevance of the i
instructions concerning the
e
considerat
tion of eligible SC/ST candid
dates and recommended that
t
the applica
ant's case be considered for p
promotion. However, the
e
applicabili
ity and effect of a particula
ar relaxation or concession
n
must be d
determined with reference t
to the relevant recruitment
t
rules, the n
nature of the promotion, the
e prescribed benchmark and
d
the instruc
ctions in force for the particu
ular vacancy year. The mere
e
fact that
an employee belongs to a
Scheduled Tribe does not
t
dispense
with the need to establis
sh the applicability of the
e
particular
concession claimed.
15.4 We al
lso note that the private resp
ondentNo.7 has relied upon
n
M. Naga
raj v. Union of India , rep
ported in (2006) 8 SCC 212.
.
The princ
ciples governing reservatio
on in promotion must be
e
applied in
n their proper context. The
e present dispute, however,
,
cannot be
e resolved merely by referr
ring to the general law on
n
reservation
n; it requires examination
n of the specific rules and
d
instruction
ns governing the applicant's c
consideration for promotion
n
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
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OA No.482 of 2015
to the pos
st of Area Organiser. On the
e material placed before us,
,
the applic
cant has not established th
hat a particular applicable
e
concession
n was wrongly denied to him
m by the review DPC or that
t
his Schedu
uled Tribe status was disre
egarded in determining his
s
suitability.
. The correction of his ca
ategory in the order dated
d
24.09.201
2, though belated, does not
by itself establish a right to
o
retrospecti
ive promotion.
16. The re
espondents have contended t
that the applicant has sought
t
restoration
n of seniority without inde
ependently challenging the
e
review DP
PC's finding that he was ‘unfi
it’ for promotion against the
e
vacancy y
years 2007–08 and 2008–
–09. They submit that the
e
consequen
ntial placement below office
ers promoted against those
e
vacancy y
years cannot be disturbed
d without challenging the
e
underlying
g assessment.
16.1 We f
find substance in the distinc
ction between challenging a
a
consequen
ntial seniority order and c
challenging the underlying
g
determina
ation of suitability. Where a
an employee seeks seniority
y
from a par
rticular vacancy year on the g
ground that he ought to have
e
been prom
moted against that vacancy, th
he legality of the assessment
t
which den
nied him promotion is ord
inarily central to the relief
f
claimed. In
n the present OA, the applica
ant has challenged the order
r
dated 12.1
12.2011 and has questioned
the review DPC's treatment
t
of his ACR
Rs, the reliance upon the pre
escribed benchmark and the
e
departure
from the earlier decision
restoring his seniority. His
s
challenge
must, therefore, be unders
stood in substance and not
t
rejected m
merely because every asp
pect of the review DPC
C
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
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OA No.482 of 2015
proceeding
gs has not been separ
rately formulated as an
n
independe
ent prayer. Nevertheless,
, unless the underlying
g
assessmen
nt is shown to be legally infir
rm, the consequential claim
m
for seniori
ity cannot succeed.
16.2 In th
he present case, Shri Sansa
ar Chand and certain other
r
officers wh
hose positions are directly in
n issue have been arrayed as
s
responden
nts. We would not, therefore
e, dismiss the OA solely on
n
the broad
assertion that every officer
r in the cadre has not been
n
impleaded
d. However, any direction di
isturbing the seniority of an
n
officer, wh
ho has not been afforded
an opportunity of hearing
g
would be i
impermissible.
16.3 As re
gards the contention that th
he applicant had suppressed
d
the comm
munication dated 28.08.201
14, the material before us
s
indicates
that the said communic
cation forms part of the
e
responden
nts' defence and that the app
licant disputes its adequacy.
.
In the abs
sence of a more specific find
ding that a material fact was
s
deliberatel
ly concealed, we do not cons
sider it necessary to dismiss
s
the OA o
on that ground alone. The
e respondents' preliminary
y
objections
, therefore, do not by them
mselves dispose of the entire
e
controvers
sy. The applicant's entitleme
ent must ultimately be tested
d
against th
he legality of the review D
DPC's assessment and the
e
governing
service rules.
17. We hav
ve considered the matter in
its entirety. The applicant's
s
case is fou
unded substantially upon the
earlier decision of the MHA
A
dated 29.
01.2009, the consequentia
al order dated 30.01.2009
9
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
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OA No.482 of 2015
restoring h
his seniority in the ad hoc
list, the regular promotion
n
order dat
ted 25.02.2010, the subse
equent seniority lists, the
e
concerns r
recorded in the earlier com
mmunications regarding his
s
ACRs, and
d the proceedings of the learn
ned NCST dated 19.08.2014.
.
These cir
cumstances establish that
the applicant's grievance
e
regarding
his initial supersession was
examined by the authorities
s
and that c
corrective action was taken i
in the context of his ad hoc
c
promotion
n. They also establish that
the applicant's placement
t
above Shri
i Sansar Chand was reflected
d in the seniority lists issued
d
before th
e review DPC proceeding
gs of 2011. However, the
e
principal q
question is whether the appl
licant has established a legal
l
entitlemen
nt to regular promotion
and seniority against the
e
vacancy ye
ear 2007–08, with effect fro
om 01.04.2007. The answer
r
cannot be
based exclusively upon his
earlier ad hoc promotion or
r
the subseq
quent seniority lists. The lega
al effect of those orders must
t
be conside
ered in conjunction with th
he review DPC's assessment
t
for regular
r promotion.
17.1 The m
material placed before us ind
dicates that the review DPC
C
considered
d the applicant against the
e vacancy years 2007–08,
,
2008–09
and 2009–10 and found h
him ‘unfit’ for the first two
o
years but ‘
‘fit’ for the third. The applic
cant's ACR for 2005–06 was
s
treated as
“Average” for the earlier vac
cancy years and upgraded to
o
“Good” for
r the vacancy year 2009–10
for the purpose of that DPC.
.
Although
the applicant has question
ned the consistency of this
s
treatment,
, the material reproduced
in the pleadings does not
t
establish t
that the review DPC was
legally bound to treat the
e
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
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OA No.482 of 2015
applicant
as ‘fit’ for the earlier vacanc
cy years merely because his
s
case had p
previously been accepted fo
or ad hoc promotion to the
e
said post.
17.2 We
are conscious of the M
MHA's earlier observations
s
concerning
g the absence of supporting r
reasons for downgrading the
e
ACR for 20
005–06. Such observations
could not simply be ignored
d
by the res
pondents. Nevertheless, the
e applicant's representations
s
against th
he communicated ACR grad
dings were considered and
d
rejected, a
and the material before us d
does not establish that those
e
rejection
orders were set aside o
or that the review DPC's
s
assessmen
nt was founded upon an en
ntry that had been formally
y
upgraded f
for the relevant earlier vacan
ncy years.
17.3 The a
applicant's commendation ce
ertificate and his allegations
s
concerning
g the quality of the ACR as
ssessments do not, without
t
further ma
aterial demonstrating a viola
ation of the applicable rules
s
or instruc
ctions, establish that the D
DPC's assessment must be
e
substituted
d by a finding of fitness by th
his Tribunal.
17.4 Simil
larly, the proceedings of the
e learned NCST are material
l
to the hist
tory of the dispute and the n
need for the respondents to
o
address th
he apparent inconsistency in
n the applicant's placement.
.
They do n
not, however, constitute a b
binding adjudication of his
s
entitlemen
nt to regular promotion o
or seniority. The claim of
f
discrimina
ation vis-à-vis Shri M. S
Sunil Singh also remains
s
unsubstan
ntiated in the absence of ma
aterial establishing that both
h
Digitally signed by RAVI KANOJIA DN: C=IN, CN=RAVI KANOJIA, L=Central Delhi, O=CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, OU=
Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
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OA No.482 of 2015
officers w
were identically situated in
n respect of the relevant
t
assessmen
nt periods and promotion crit
teria.
17.5 We a
accordingly hold that the ap
pplicant has not established,
,
on the m
material produced before u
us, that the review DPC's
s
assessmen
nt for the vacancy years 20
007–08 and 2008–09 was
s
vitiated by
y a demonstrated violation o
of the applicable recruitment
t
rules, a bi
inding reservation instructio
on, or a specific procedural
l
illegality w
warranting judicial interfere
ence. The earlier restoration
n
of his ad
hoc seniority does not, by i
itself, confer an enforceable
e
right to reg
gular seniority against the va
acancy year 2007–08.
18. In the
e result, for the foregoing d
discussion, we find that the
e
instant O
OA is bereft of merit and
d the same is accordingly
y
dismissed.
.
19. There
e shall be no order as to costs
s.
20. Pendi
ing MA(s), if any, shall stand
d disposed of accordingly.
(Rajinder
Memb
r Kashyap)
ber (A)
( Justice Ranjit More)
Chairman
/ravi/
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Central Administrative Tribunal PRINCIPAL Bench, ST=Delhi, [email protected], postalCode=110001, serialNumber=12da7dfe98e77c92dda4af6c196687700e5cc7e2bcc4fe78d730f8470c3e9a4f, street=61/35, COPERNICUS
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