Retrospective promotion cannot be granted where no sanctioned post existed during the period of eligibility.

The applicant, appointed as a Junior Accountant in 1982, rose to the rank of Assistant Director (Finance) on 05.01.2005

He became eligible for promotion to the post of Deputy Director (Finance) on 04.01.2010 after completing the five-year residency period

However, he was denied consideration due to adverse remarks/below-benchmark grading in his Annual Performance Appraisal Reports (APAR)

These remarks were eventually expunged/upgraded by the competent authority on 13.08.2014

Meanwhile, the respondents contended that the post of Deputy Director (Finance) had been "deemed abolished" as per Ministry of Finance norms because it remained vacant for over a year following its creation in 2009

The applicant was eventually promoted to the equivalent post of Deputy Director (Admn.) on 22.10.2014

The applicant filed this OA seeking retrospective promotion to the post of Deputy Director (Finance) from 2010/2011, arguing that the effect of APAR upgradation must be retrospective and that the post was available at the time of his eligibility

1. Whether the applicant is entitled to retrospective promotion following the upgradation of his APAR entries, notwithstanding the "deemed abolition" of the sanctioned post during the period of eligibility.

2. Whether the Tribunal can direct the creation of a retrospective supernumerary post to accommodate a claim for promotion when no vacancy existed.

The Tribunal acknowledged the settled legal principle from Dev Dutt v. Union of India [para. 2(v)] and Sukhdev Singh v. Union of India [para. 2(vi), (vii)] that if adverse remarks or below-benchmark gradings in an APAR are subsequently upgraded, the benefit to the employee’s career prospects must be retrospective

administrative principle that promotion is contingent upon the availability of a sanctioned post

Ministry of Finance, Department of Expenditure OM dated 09.09.2003 regarding the revival of "deemed abolished" posts, which requires functional justification and financial consultation

The Tribunal noted that while the upgradation of APAR entries generally grants retrospective eligibility, the "peculiar situation" here was the non-availability of a post

The post of Deputy Director (Finance) was deemed abolished on 28.01.2010 because it had been vacant for one year

Although the applicant relied on a Staff Inspection Unit (SIU) report to argue post availability, the Tribunal clarified that such reports are internal communications quantifying job requirements and do not constitute the formal creation or sanctioning of posts

The Tribunal reasoned that the convening of a Departmental Promotion Committee (DPC) is not tenable in the absence of a vacancy

It further held that the creation of posts or supernumerary posts is a policy decision within the domain of the executive, and the judiciary cannot compel an organization to create a post it does not require

Consequently, while an employee has a vested right to be considered for promotion, such a right cannot be exercised if the post itself does not exist

The right to consideration for promotion is inextricably linked to the availability of a sanctioned vacancy

The Tribunal found the OA to be devoid of merit and dismissed it, granting no costs