A finalized below-benchmark APAR validly justifies the DPC’s “unfit” assessment and denial of promotion.

The applicant, an officer in the Defence Accounts Department, was appointed as an Auditor on 5 February 1983 and was serving as Assistant Controller of Finance & Accounts at Ordnance Factory, Bhusawal.

He alleged that he was victimised after refusing to clear bogus bills and reporting financial irregularities to higher authorities, the CBI and the Central Vigilance Commission.

He was attached to Ordnance Factory, Ambajhari and subsequently transferred to Meerut.

He challenged the transfer before the Mumbai Bench of the Tribunal, but ultimately joined at Meerut on 16 December 2013 after interim protection was vacated.

The applicant challenged the adverse assessment in his APAR for 2012–13, particularly the numerical grading of 3.4, contending that it was mala fide and inconsistent with his otherwise satisfactory service record.

The respondents maintained that the APAR was objectively recorded because of several alleged irregularities and the Reporting Officer’s inability to certify his integrity.

While considering officers for promotion to the Senior Time Scale of the Indian Defence Accounts Service for the vacancy year 2015–16, the Departmental Promotion Committee (“DPC”) declared the applicant “UNFIT” on account of the below-benchmark APAR grading.

His representation and statutory appeal against the APAR were rejected, and the respondents stated that the APAR had consequently attained finality.

The applicant challenged the communication dated 28 April 2015, sought retrospective promotion with consequential benefits, and also sought expunction of the adverse remarks and supply of an allegedly uncommunicated APAR.

During the proceedings, the applicant was again considered for promotion for the vacancy year 2016–17 and was ultimately promoted to the Senior Time Scale by order dated 18 May 2017.

He also superannuated during the pendency of the Original Application.

Whether the DPC’s decision to declare the applicant “UNFIT” for promotion for the vacancy year 2015–16, based substantially on the below-benchmark APAR grading of 3.4, was arbitrary, mala fide, procedurally unlawful or contrary to the applicable promotion guidelines?

Whether the adverse APAR for 2012–13 could validly be relied upon by the DPC after the applicant’s representation and statutory appeal against the grading had been rejected?

Whether the applicant was entitled to retrospective or notional promotion and consequential service benefits after his subsequent promotion and superannuation?

Whether the applicant’s allegations of punitive transfer, victimisation and departmental retaliation justified interference with the DPC recommendation and the communication dated 28 April 2015?

The Tribunal applied the DOPT guidelines governing DPCs and promotion assessment, under which the DPC is competent to independently assess an officer’s suitability against the prescribed benchmark and may declare an officer “UNFIT” where the benchmark is not met.

It applied the principle that judicial review does not permit a court or tribunal to substitute its assessment for that of an expert DPC unless the decision is shown to be arbitrary, mala fide, procedurally irregular or contrary to statutory rules, relying on Union of India v. S.K. Goel.

The Tribunal further held that allegations of mala fide must be specifically pleaded and established by clear and convincing evidence; bald or unsubstantiated allegations are insufficient.

On retrospective promotion, it relied on Government of West Bengal v. Dr. Amal Satpati, Bihar State Electricity Board v. Dharamdeo Das, and State of Bihar v. Akhouri Sachindra Nath, for the principles that promotion is not a vested right, ordinarily takes effect from the date it is granted or the promotional post is assumed, and notional or retrospective promotion after retirement is not automatic absent a clear case of wrongful denial against an existing sanctioned post.

The Tribunal found that the applicant’s APAR for 2012–13 contained a numerical grading of 3.4, below the prescribed promotional benchmark, and that the APAR had been communicated to him.

Since his representation and statutory appeal had been rejected, the grading had attained finality before the DPC met; the DPC was therefore entitled to consider it.

The applicant produced no cogent evidence establishing that the APAR was manipulated or that the DPC acted under extraneous influence.

His allegations concerning refusal to clear bogus bills, victimisation and punitive transfer remained unsubstantiated and, in any event, did not demonstrate any procedural defect in the promotion assessment.

The Tribunal also rejected the contention that the DPC was required to disregard the below-benchmark APAR in favour of the applicant’s overall service record, holding that no material showed that the DPC had violated the governing guidelines or failed to undertake the required assessment.

His subsequent promotion in 2017 did not create a right to retrospective promotion for the 2015–16 vacancy year, particularly after superannuation and in the absence of wrongful denial established in law.

The applicant was not entitled to retrospective or notional promotion for the vacancy year 2015–16 merely because he was subsequently promoted in 2017 or because he had later retired.

The Original Application was accordingly dismissed, with no order as to costs; all pending miscellaneous applications, if any, were also disposed of.