Central Administrative Tribunal - Delhi
Bir Singh vs Defence on 7 November, 2025
1
OA No. 2732/2022
Item No.96/C-3
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 2732/2022
Reserved on : 22.09.2025
Pronounced on : 07.11.2025
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
Shri Bir Singh
S/o Rati Ram, Group 'C'
House No. 183/4, Lakhpat Coloney Part-I
Gali No.4, Bardarpur
New Delhi-110044.
.. Applicant
(By Advocate: Mr. I.S. Yadav)
Versus
1. Union of India
Through Secretary (Defence)
Ministry of Defence
South Block, New Delhi-110011.
2. The Engineer-in-Chief
IHQ of MOD (Army)
Kashmir House, Rajaji Marg
New Delhi-110010.
3. Headquarters
Chief Engineer, Western Command
PIN-908543, C/o 56 APO.
4. Headquarters
Commander Works Engineers
Delhi Cantt.-110010.
.. Respondents
(By Advocate: Mr. Sona Kumar)
2
OA No. 2732/2022
Item No.96/C-3
ORDER
Hon'ble Dr. Anand S. Khati, Member (A) In the present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has impugned the letter dated 20.08.2022 by which his request for promotion after retirement has been rejected by the respondents. By virtue of this O.A., the applicant has sought for the following reliefs:-
"(i) By an appropriate direction impugned order dated 20 Aug 2022 (Annexure A-1) be declared illegal and be quashed and set aside : and
(ii) By an order or direction respondents may be directed to grant the Notional Promotion from the date of vacancy arise, fix the pay on promotion, revise PPO and make payment of difference of retiral benefits : and
(iii) To grant the interest of 18% on arrears; and
(iv) To award exemplary costs: and
(v) Any other relief which is found just and proper be passed in favour of the applicant in the interest of justice."
2. Brief facts of the case as narrated by learned counsel for the applicant are as under:-
2.1 The applicant initially joined as Mazdoor on 24.06.1980 in Military Engineering Service and thereafter promoted upto the post of Highly Skilled-I (HS-I). He superanuated from service on 31.10.2021 on completion of 41 years qualifying service.
2.2 According to the applicant, he was eligible for promotion as MCM and his name was also in the select panel of MCM, however, the 3 OA No. 2732/2022 Item No.96/C-3 respondents completed the DPC for vacancy year 2021 in June, 2022.
In the meanwhile, the applicant retired from service on 31.10.2021 on attaining the age of superannuation, without promotion to the post MCM.
2.3 Thereafter, the applicant submitted representation dated 02.08.2022 to the respondents for notional promotion as he was in service when the vacancy arose in the year 2021 as the delay has been on the part of the respondents, he should not be punished. He has also challenged the delay in DPC.
3. Learned counsel for the applicant contended that the respondents failed to adhere to the model calendar issued to conduct the DPC timely in violation of guidelines issued by the DoPT vide OMs dated 08.09.1998 and 14.12.2000; and for such failure on the part of the respondents, the applicant cannot be denied promotion and put to irreparable financial loss for whole life. In support of his contention, he has relied upon the following case laws:
(i) Apex Court's Judgment dated 31.07.2015 in Civil Appeal No.811/2007 titled Ramesh Kumar vs Union of India & Ors., wherein it has been held that the principle of 'no work no pay' would not be attracted where the respondents were in fault in not considering the case of the appellant for promotion and not allowing the appellant to work on a post of Naib Subedar carrying higher pay scale.4 OA No. 2732/2022
Item No.96/C-3
(ii) High Court of Manipur Judgment dated 26.05.2022 in WP(C) No. 592 of 2021 titled Shri Ahongshangbam Tomba Singh vs The State of Manipur & Ors. wherein it has been held that due to arbitrary exercise of power in not holding the DPC in time by the authority, admittedly, the petitioner will retire below one rank than the one which ought to have been made available during his long career in the department due to want of qualifying service. Therefore, in the interest of justice and in equity to direct the respondent authorities to give notional promotion to the petitioner; and
(iii) Order dated 28.08.2019 passed by Jodhpur Bench of this Tribunal in O.A. No. 524/2016 titled R.K. Kawatra vs Union of India & Ors., wherein it was held that the DPC were not held in time. The respondents were directed to conduct a review DPC to consider promotion of the applicant therein to EE fresh with respective years of vacancy, PPO may also be revised accordingly and payment of different of retiral benefits be made as per Rules.
4. The applicant has also cited Dop&T OM No.23036/3/77- Estt.(D) dated 07.10.1977, wherein it was emphasised even at the level of the Prime Minister as under:
"the Prime Minister has noted that in a number of cases appointments are made adhoc either Recruitment Rules have not been finalized or there has been delay in filling up of the posts in a regular manner. The Prime Minister has, therefore desired that Ministry/Department should take action to fill up the posts in good time before vacancies actually occur in order to avoid adhoc appointment. In case where there is unjustified delay, responsibility for delay should be assigned and those responsible should be suitably dealt".5 OA No. 2732/2022
Item No.96/C-3 He has also referred to DoPT OM dated 23.04.2015 and 27.10.2016 as regards adherence of the prescribed time-line to convene DPCs.
5. On the other hand, learned counsel for the respondents submitted that the applicant superannuated from service on 31.10.2021 and he was granted three regular promotions before that. He made an application dated 02.08.2022 with a request to grant promotion as MCM as he was in service at the time of board proceedings. However, his application was rejected by the Higher Authority vide letter dated 20.08.2022, based on the findings that promotion has been recommended from the date of occurrence of vacancy of MCM, i.e. antedated, which is not in order as promotions are prospective in nature. Hence, the panel is approved with the condition that promotion will be effected from the date of assumption of duty in promoted post in order of seniority in existing grade. 5.1 He further submitted that due to pandemic Covid-19 and countrywide lockdown in previous year, the process to conduct DPC for MCM got delayed being beyond control and finalised on 28.04.2021. Thereafter, Board of Officer (promotion HS-I to MCM for the year 2021) was prepared and forwarded to the HQ CE Delhi Zone for recommendation and onward submission to HQ CE Western Command for approval vide letter dated 15.07.2021. 5.2 As per the policy in vogue, promotion order will be enforced from date of signature of BOO/physical assumption of rank. MCM 6 OA No. 2732/2022 Item No.96/C-3 promotion board for the year 2021 was finalised on 27.06.2022, whereas the applicant retired on 31.10.2021. Hence, he was not granted promotion and as per the direction of this Tribunal, the copies of board proceedings have already been supplied for kind perusal of the Bench. In the facts and circumstances, the applicant is not entitled for the relief prayed for and the O.A. is liable to be dismissed.
6. Heard the learned counsel for the respective parties at length and perused the pleadings/judgments placed on record as well as the guidelines on the subject.
7. The primary issue in this Original Application (O.A.) revolves around the applicant's request for notional promotion to the post of MCM for which he claims that he was entitled to before his retirement on 31.10.2021, as he was in service when the vacancy arose and he was also eligible for the same. Various case laws and the DoPT guidelines have been cited by the applicant in support of his contention that the respondents' failure to conduct the DPC on time should not result in his penalization.
8. It is fairly conceded by the respondents that the delay in the DPC process occurred due to external factors of Covid-19 pandemic and subsequent lockdowns in previous year 2020 and consequential delay in the year 2021, when the applicant retired from service, which were beyond their administrative control.
7OA No. 2732/2022 Item No.96/C-3
9. We have carefully gone through various case laws and the DoPT guidelines cited by the applicant in support of his claim. It is noted that in Ramesh Kumar vs Union of India, the Supreme Court held that the "no work, no pay" rule should not apply where the delay is attributable to the employer's fault, and the applicant should not suffer financially for administrative delays. In Shri Ahongshangbam Tomba Singh vs The State of Manipur, the High Court granted notional promotion to an employee whose promotion was delayed due to administrative delay. Similar view was taken by the coordinate Bench of this Tribunal at Jodhpur in the case of R.K. Kawatra (supra), wherein it has been emphasized that in situations where the DPC is not held in time, promotion should be granted from the date of the vacancy, with revisions made to the PPO and retiral benefits. The operative portion of the same reads thus:
"23. To conclude after considering the pro and cons the balance clearly tilts in favour of the applicant. This is the case where it appears that the respondent department did not apply principles of due diligence in the matter of promotions at the level of AEs/EEs. The DPC were not held in time. The reasons given by the respondents for not convening the DPC are not found to be justified when put under judicial scrutiny. The delay in the holding the DPC led to avoidable delay in the grant of NFU to the applicant. It cannot be stated that such factors are "not attributable to the respondents or "beyond their control". Such unjustified delay has not been adequately explained by the respondents and is not warranted.
24. In view of the above discussions and particularly in the context of the Apex Court judgment in K.B. Rajoria (supra) as well as the order of the Coordinate Bench of this Tribunal in the case of K.C. Chauhan Vs. Sujeet S. Priyadarshi (supra) decided on 07.03.2012, the OA is allowed. The respondents are directed to conduct a review DPC to consider the promotion of the applicant to EE afresh with the respective years of vacancy. The respondents are also directed to review the date of grant of NFSG & NFU based on the reviewed qualifying service of the applicant.8 OA No. 2732/2022
Item No.96/C-3 PPO may also be revised accordingly and payment of difference of retiral benefits be made as per rules. Action as above may be taken within a period of three months from the date of receipt of a certified copy of this order.
25. Accordingly, the OA is allowed as above. No order as to costs."
and it has also been emphasised by the DoPT, time and again, for timely convening of DPCs and adherence to prescribed timeframes, and the need for accountability for delays.
10. It is not disputed that the applicant herein was eligible for promotion before his retirement and vacancy was also available and had the DPC been timely conducted, he would have been promoted during his service tenure. The fact, however, remains that due to Covid-19 pandemic and countrywide lockdown in 2020-2021, the process to conduct DPCs for promotion to the post of MCM got delayed, which was beyond the control of the respondents and cannot be attributed to the respondents. Therefore, various judgments cited by the applicant cannot be made applicable to the present case. Furthermore, the applicant's request for notional promotion cannot be acceded to in view of the settled position of law as well as as per the DoPT guidelines, promotions are prospective in nature and can only be enforced from the date of assumption of duties in the promoted post and cannot be backdated, especially when the DPC held and finalized after the applicant's retirement. 9 OA No. 2732/2022 Item No.96/C-3
11. In Union of India vs K.K. Vadera and Others, 1989 Supp (2) SC 625, the Hon'ble Supreme Court ruled that a promotion takes effect from the date it is officially granted, not from the date a vacancy occurs or a post is created. This principle clarifies that a promotion cannot be retrospectively applied to benefit an employee who has retired before the promotion order was issued. The Apex Court held as under:-
"5. .... We do not know of any law or any rule under which a promotion is to be effective from the date of creation of the promotional post. After a post falls vacant for any reason whatsoever, a promotion to that post should be from the date the promotion is granted and not from the date on which such post fall vacant. In the same way when additional posts are created, promotions to those posts can be granted only after the Assessment Board has met and made its recommendations for promotions being granted. If on the contrary, promotions are directed to become effective from the date of the Creation of additional posts, then it would have the effect of giving promotions even before the Assessment Board has met and assessed the suitability of the candidates for promotion. In the circumstances, it is difficult to sustain the judgment of the Tribunal."
The aforesaid decision was followed in the subsequent judgment of the Hon'ble Supreme Court in Baij Nath Sharma vs Hon'ble Rajasthan High Court at Jodhpur and Another, (1998) 7 SCC
44.
12. Further, in a detailed judgment dated 12.01.2007, the Hon‟ble High Court, in Union of India vs Rajendra Roy and Ors. by referring the judgments of Hon'ble Supreme Court in K.K. Vadera (supra) and in Baij Nath Sharma (supra), held as under:-
"16. The Hon‟ble Supreme Court held that the appellant would certainly have a grievance if any of his juniors had been given 10 OA No. 2732/2022 Item No.96/C-3 promotion from a date prior to his superannuation which was not the case before the Court. The Court also noticed that there was no rule under which promotion could be granted from the date of occurrence of the vacancy. The Court relied upon its earlier decision in K. K. Vadera (supra) and dismissed the appeal of Baijnath Sharma. This decision in our view, seals the fate of the respondent. No doubt, the Hon‟ble Supreme Court regretted the in-action on the part of the High Court to make timely promotions since delays and inaction, resulted in deprivation of promotion to the deserving candidates without any fault of theirs. The Supreme Court also expressed the desire that such occurrences should not recur. But that by itself cannot give a right to the respondent to go against the jurisprudence evolved in the main part of the judgment."
13. The aforesaid issue was also dealt by a coordinate Bench of this Tribunal in OA No.1409 of 2009 titled as P.G. George vs Union of India and batch, decided on 22.04.2010. After referring to the judgments of the various High Courts and Supreme Court, this Tribunal took the view that if an employee who is junior to a retired employee is promoted w.e.f. the date which is anterior to the date of retirement, such retired employee is also entitled to be extended the same benefit. The relevant portion of the judgment reads as under:-
"It is thus very clear that:
There is no rule that promotion should be given from the date of creation of the promotional post;
If promotions are effected prospectively from the date of issued of the order of promotion, retired employees would not be eligible for promotion retrospectively; and if promotion is granted retrospectively and a person junior to the retired employee has been promoted from the date when the retired person was in service and if the retired person has been found fit by the DPC, such retired person would be entitled to promotion retrospectively on notional basis from the date his immediate junior has been promoted. This is clear from the judgement in Baijnath Sharma, as it has been paraphrased in Rajendra Roy (supra) in paragraph 16, quoted above. Moreover, it has further been clarified by the Honourable High Court in Rajendra Roy (supra) itself in paragraph 25 of the judgment, which has been quoted above."11 OA No. 2732/2022
Item No.96/C-3
14. Taking note of the purport of the aforesaid legal position, even if the employee retired from service, he is entitled to be promoted on notional basis with effect from the date, on which his junior was promoted. This again is subject to the rider that the promotion of the junior was from a date, before the date of retirement of the concerned employee. However, it is not the case of the applicant that any junior to him was granted retrospective promotion that could have given rise to any grievance. Therefore, we are of the considered opinion that the applicant has no legal right or enforceable claim for retrospective notional promotion or any consequential benefits.
15. Accordingly, the O.A. is dismissed being devoid of any merit, however, with no order as to costs. Pending MAs, if any, shall also stand disposed of.
(Dr. Anand S. Khati) (Manish Garg)
Member (A) Member (J)
/jyoti/