Retired SSB Officer’s Earlier Ad Hoc Seniority Did Not, By Itself, Secure 2007 Regular Seniority: CAT Rejects His Claim

The applicant, a Scheduled Tribe officer in the Sashastra Seema Bal (SSB), challenged his placement below junior officers in the seniority order dated 12 December 2011.

The Ministry of Home Affairs (MHA) had earlier approved his ad hoc promotion and restoration of his seniority in the ad hoc Area Organisers’ list; he was later regularly promoted and shown above Shri Sansar Chand in seniority lists issued before the 2011 review DPC.

That review DPC found him unfit for the 2007–08 and 2008–09 vacancy years, but fit for 2009–10, after upgrading one ACR grading for that assessment.

The applicant alleged that the review DPC relied on disputed ACR gradings, disregarded the earlier seniority decision and failed to apply safeguards relevant to his ST status.

The National Commission for Scheduled Tribes (NCST) had advised the respondents to examine and correct the seniority anomaly.

The applicant sought restoration of his seniority from 1 April 2007, above Shri Sansar Chand and other juniors, with consequential benefits.

Promotion to a selection post is governed by the applicable recruitment rules, eligibility requirements, prescribed benchmark and assessment of the duly constituted DPC; seniority in the feeder grade does not itself create a right to promotion.

The Tribunal’s review of a DPC assessment is limited, but intervention is available where the assessment violates applicable rules or instructions, is mala fide, rests on irrelevant considerations, or is otherwise arbitrary or procedurally unfair.

In Nirmal Chandra Sinha v. Union of India, (2008) 14 SCC 29, the Supreme Court affirmed that promotion ordinarily takes effect from the date it is granted, not from the date a vacancy arises.

Dev Dutt v. Union of India, (2008) 8 SCC 725, and Abhijit Ghosh Dastidar v. Union of India, (2009) 16 SCC 146, support communicating below-benchmark ACR gradings so an employee can make an effective representation.

The Tribunal also considered the applicable SSB service rules and DoP&T instructions on ACR assessment and SC/ST promotion concessions.

NCST proceedings under Article 338A were relevant to the grievance but did not themselves determine inter se seniority or confer an enforceable right to promotion.

The Tribunal accepted that the earlier MHA and SSB orders, the regular promotion order and the pre-2011 seniority lists were material and required consideration, but held that they did not conclusively establish a right to regular seniority from 1 April 2007: the earlier restoration concerned the ad hoc list, while the review DPC separately assessed regular promotions against year-wise vacancies.

Although the same 2005–06 ACR was treated as “Average” for the earlier vacancy years and upgraded to “Good” for 2009–10, that difference alone did not prove illegality, since the assessment periods and other ACRs could differ.

The applicant had received the relevant gradings, made representations, and had those representations rejected; the record did not establish that the rejection or DPC assessment breached a binding instruction or was otherwise legally infirm.

The NCST’s observations reinforced the need to address the apparent inconsistency but were not binding adjudications of promotion or seniority.

The Tribunal also found insufficient material to establish that the applicant and Shri M. Sunil Singh were identically situated for the relevant assessments, or that the applicant’s ST status was disregarded; correction of its omission from the 2011 order did not establish a right to retrospective promotion.

Accordingly, the applicant did not show a reviewable legal defect in the DPC’s findings.

The earlier restoration of his ad hoc seniority did not create an enforceable right to regular seniority from the 2007–08 vacancy year.

The OA was dismissed; there was no order as to costs, and any pending miscellaneous applications were disposed of.