Central Administrative Tribunal - Delhi
Balram Jaiswal vs M/O Tourism on 14 July, 2023
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Item No. 42/ C-3 OA No. 2419/2018
OA No. 4403/2018
OA No. 4495/2018
OA No. 414/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No. 2419/2018
With
O.A. No. 4403/2018
O.A. No. 4495/2018
O.A. No. 414/2021
This, the 14thDay of July 2023
Hon'ble Mr. Ashish Kalia, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
OA No. 2419/2018
Balram Jaiswal,
S/o Late Ram Chandra Jaiswal,
Aged 39 yrs,
Designation- Sous Chef,
A-8, Officers Flat,
The Ashoka Hotel, 50-B,
Diplomatic Enclave, Chanakyapuri
New Delhi-110021
...Applicant
(By Advocate :Mr.Sagar Saxena with Mr. Parmeet
Singh and Mr. Sarthak Pandey)
Versus
1. India Tourism Development Corporation Ltd.
Through The Chairman &Managing Director
ITDC, Core 8, 6th Floor
7 Lodhi Road
Scope Complex
New Delhi-110003
2. The Director (Commercial & Marketing)
India Tourism Development Corporation Ltd.,
Core 8, 6th Floor,
7 Lodhi Road,
Scope Complex,
New Delhi-110003
2
Item No. 42/ C-3 OA No. 2419/2018
OA No. 4403/2018
OA No. 4495/2018
OA No. 414/2021
3. The General Manager (HR),
India Tourism Development Corporation Ltd.,
Core 8, 6th Floor,
7 Lodhi Road,
Scope Complex,
New Delhi-110003
4. The General Manager (Hotels),
India Tourism Development Corporation Ltd.,
Core 8, 6th Floor, Room No. 612
7 Lodhi Road,
Scope Complex,
New Delhi-110003
5. The General Manger,
The Ashok Hotel,
50-B, Diplomatic Enclave,
Chanakyapuri,
New Delhi, Delhi 110021
6. The Senior Executive Chef
The Ashok Hotel,
50-B, Diplomatic Enclave,
Chanakyapuri,
New Delhi, Delhi 110021
...Respondents
(By Advocate:Mr. Ujjawal K. Jha with Mr. Vedant
Tiwari)
OA No. 4403/2018
Veeta Singh,
W/o Sh. Manoj Kumar,
Aged 52yrs,
Designation- Sr. Manager (HO),
8628/C-8,
Vasant Kunj, New Delhi-110070
...Applicant
(By Advocate : Mr. Sagar Saxena with Mr. Parmeet
Singh and Mr. Sarthak Pandey)
Versus
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Item No. 42/ C-3 OA No. 2419/2018
OA No. 4403/2018
OA No. 4495/2018
OA No. 414/2021
1. India Tourism Development Corporation Ltd.
Through The Chairman &Managing Director
ITDC, Core 8, 6th Floor
7 Lodhi Road
Scope Complex
New Delhi-110003
2. The Director (Commercial & Marketing)
India Tourism Development Corporation Ltd.,
Core 8, 6th Floor,
7 Lodhi Road,
Scope Complex,
New Delhi-110003
3. The General Manager (HR),
India Tourism Development Corporation Ltd.,
Core 8, 6th Floor,
7 Lodhi Road,
Scope Complex,
New Delhi-110003
4. The General Manager (Hotels),
India Tourism Development Corporation Ltd.,
Core 8, 6th Floor, Room No. 612
7 Lodhi Road,
Scope Complex,
New Delhi-110003
5. Sh. Pankaj Mittal
Food & beverages (F&B) Manager,
Ashok Hotel, Diplomatic Enclave,
50-B, Chanakyapuri, New Delhi-110009
6. Sh. Sanjay K Singh
General Manager, Vigyan Bhawan,
Rajpath, Rajpath Area, Central Secretariat,
New Delhi-110001
7. Ms. Aseema Mittal
Chairman & Managing Director (C&MD),
India Tourism Development Corporation Ltd.,
Core 8, 6th Floor, 7 Lodhi Road,
Scope Complex,New Delhi-110003
4
Item No. 42/ C-3 OA No. 2419/2018
OA No. 4403/2018
OA No. 4495/2018
OA No. 414/2021
8. Sh. Pankaj Batra
Deputy General Manager (DGM)
Indian Tourism Development Corporation Ltd.,
Core-8, 6th Floor, 7 Lodhi Road,
Scope Complex, New Delhi-110003
9. Sh. Yogesh Pandey
Deputy General Manager (DGM), Event division,
Ashok Hotel, Diplomatic Enclave,
50-B, Chanakya Puri, New Delhi-110009
10. Ms. Neetika,
Deputy General Manager (DGM), (HR)
Indian Tourism Development Corporation Ltd.,
Core-8, 6th Floor, 7 Lodhi Road,
Scope Complex, New Delhi-110003
11. Sh. Nitin Mahajan
Deputy General Manager (DGM), (HR)
Indian Tourism Development Corporation Ltd.,
Core-8, 6th Floor, 7 Lodhi Road,
Scope Complex, New Delhi-110003
12. Sh. MU Kasture
Chef Ashok Hotel, Diplomatic Enclave,
50-B, Chanakya Puri, New Delhi-110009
...Respondents
(Mr. Sanjoy Ghosh, Sr. Advocate with Mr. Anish
Chawla for R-1)
Mr. Manoj Ranjan Sinha with Ms. Nisha and Mr.
Deepak Sain for R-6)
OA No. 4495/2018
1. Ms. Vaishali SinghKoshal,
W/o Dr. Deepak Koshal,
Aged 48 yrs,
Designation- Sr. Manager (IMC),
BD/2E, DDA Flats,Munirka
New Delhi-110067
2. Ms. Aarti Dewan
D/o Mr. S. K. Puri
Aged 48 yrs,
Designation- Sr. Manager (IMC),
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Item No. 42/ C-3 OA No. 2419/2018
OA No. 4403/2018
OA No. 4495/2018
OA No. 414/2021
207D, Green Apartments,
Rajouri Garden, New Delhi
3. Mr. A. Salaivasavan
S/o Shri V.T. Arasu
Aged 56 yrs,
Designation- Sr. Manager (IMC),
New No. 12, Vellu Street,
West Mambalam,
Chennai-600033
Applicants
(By Advocate : Mr. Sagar Saxena with Mr. Parmeet
Singh and Mr. Sarthak Pandey)
Versus
1. India Tourism Development Corporation Ltd.
Through The Chairman &Managing Director
ITDC, Core 8, 6th Floor
7 Lodhi Road
Scope Complex
New Delhi-110003
2. The Director (Commercial & Marketing)
India Tourism Development Corporation Ltd.,
Core 8, 6th Floor,
7 Lodhi Road,
Scope Complex,
New Delhi-110003
3. The General Manager (HR),
India Tourism Development Corporation Ltd.,
Core 8, 6th Floor,
7 Lodhi Road,
Scope Complex,
New Delhi-110003
4. The General Manager (Hotels),
India Tourism Development Corporation Ltd.,
Core 8, 6th Floor, Room No. 612
7 Lodhi Road,
Scope Complex,
New Delhi-110003
6
Item No. 42/ C-3 OA No. 2419/2018
OA No. 4403/2018
OA No. 4495/2018
OA No. 414/2021
5. Sh. Pankaj Batra
Deputy General Manager (DGM)
Indian Tourism Development Corporation Ltd.,
Core-8, 6th Floor, 7 Lodhi Road,
Scope Complex, New Delhi-110003
6. Ms. Neetika
Deputy General Manager (DGM), (HR)
Indian Tourism Development Corporation Ltd.,
Core-8, 6th Floor, 7 Lodhi Road,
Scope Complex, New Delhi-110003
7. Sh. MU Kasture
Chef Ashok Hotel, Diplomatic Enclave,
50-B, Chanakya Puri, New Delhi-110009
8. Sh. Yogesh Pandey
Deputy General Manager (DGM), Event division,
Chef Ashok Hotel, Diplomatic Enclave,
50-B, Chanakya Puri, New Delhi-110009
..Respondents
(By Advocate: Mr. Ujjawal K. Jha with Mr. Vedant
Tiwari)
OA No. 414/2021
Vikash Kumar Anand,
S/o Sh. Vishwanath Sah,
Aged 37 yrs, Designation- Chef,
Flat No. - 12, Palika Gram, Block - Y
Sarojini Nagar New Delhi-110023
...Applicant
(By Advocate : Mr. Sagar Saxena with Mr. Parmeet
Singh and Mr. Sarthak Pandey)
Versus
1. India Tourism Development Corporation Ltd.
Through The Chairman & Managing Director
ITDC, Core 8, 6th Floor, 7 Lodhi Road
Scope Complex, New Delhi-110003
7
Item No. 42/ C-3 OA No. 2419/2018
OA No. 4403/2018
OA No. 4495/2018
OA No. 414/2021
2. The Director (Commercial & Marketing)
India Tourism Development Corporation Ltd.,
Core 8, 6th Floor, 7 Lodhi Road,
Scope Complex, New Delhi-110003
3. The General Manager (HR),
India Tourism Development Corporation Ltd.,
Core 8, 4th Floor, 7 Lodhi Road,
Scope Complex, New Delhi-110003
4. The Vice President (Hotels),
India Tourism Development Corporation Ltd.,
Core 8, 6th Floor, Room No. 612
7 Lodhi Road, Scope Complex,
New Delhi-110003
5. The General Manger,
The Ashok Hotel, 50-B, Diplomatic Enclave,
Chanakyapuri, New Delhi, Delhi 110021
6. The Chief Executive Chef
The Ashok Hotel, 50-B, Diplomatic Enclave,
Chanakyapuri, New Delhi, Delhi 110021
7. Sh. Aviral Saxena
S/o Sh. RK Saxena
Manager, Administration, ITDC, Scope complex,
Core-8, Room N-422, 4th Floor, Lodhi Road,
New Delhi-110003
8. Sh. S. Thangsing S/o Sh. Z Thangsing,
Manager (HO), Front Office
The Ashok Hotel,50-B, Diplomatic Encalve,
Chanakyapuri, New Delhi-110023
9. Sh. Sachin Kumar,
S/o Late Sh. Shyam Deo Ravidas
Manager (HO), The Ashok Hotel,
50-B, Diplomatic Enclave, Chanakapuri,
New Delhi-110023
..Respondents
(By Advocate: Mr. Ujjawal K. Jha with Mr. Vedant
Tiwari)
8
Item No. 42/ C-3 OA No. 2419/2018
OA No. 4403/2018
OA No. 4495/2018
OA No. 414/2021
ORDER (ORAL)
By Mr. Ashish Kalia, Member (J):-
Since a common question of law is involved, we are disposing these four OAs by passing a common order.
2. The applicants have filed the present OA under Section 19 of the Administrative Tribunals Act 1985, seeking the following reliefs:-
OA No. 2419/2018
a) "Direct the respondents to take necessary action for inclusion of the name of the applicant, Sh. Balram Jaiswal in the Select List for the promotion to the post of Sr. Sous Chef considering the fact that the applicant was not communicated his APAR for the years 2013-14, 2014-15, 2015-16 which is illegal and arbitrary.
b) Direct the respondents to consider the applicant for promotion to the post of Sr. Sous Chef which is due since March 2016 by treating his entry "Good" as "Very Good" for the period 2013-14, 2014-15, 2015-16 considering the fact that the applicant was not communicated his APAR for the years 2013-14, 2014-15, 2015-16 which is illegal and arbitrary.
c) Quash/set-aside the impugned Circular dated 17.02.2017 bearing reference no.
HRM/Policy/1/17 regarding revision in Recruitment, Promotion, Seniority Rules of ITDC;
d) Quash/slash set aside the impugned circular dated 13.07.2018, bearing reference No. HRM/Policy/2/18 regarding amendment in Recruitment, promotion & seniority rules, 2010 of ITDC including modification in benchmark for promotion;
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Item No. 42/ C-3 OA No. 2419/2018 OA No. 4403/2018 OA No. 4495/2018 OA No. 414/2021
e) Any other such further order/ directions as this Hon'ble tribunal may deem fit and proper in the interest of justice."
O.A. No. 4403/2018
a) Quash/set-aside the impugned office order dated 06.11.2018 bearing reference no. HR/RECTT-DPC JULY/18thereby declaring promotion of total eight (8) candidates to the post of DGM, wherein all the eight candidates promoted to the post of DGM were juniors and far below in the seniority list than the applicant, got promotion violating all norms & principles of promotion and natural justice;
b) Quash/set-aside the impugned Circular dated 13.07.2018 bearing reference no.
HRM/Policy/2/18 regarding revision in Recruitment, Promotion, Seniority Rules of ITDC and all consequent actions of the respondents;
c) Direct the respondents to consider the applicant for promotion to the post of Deputy General Manager by treating her entry as "Outstanding" as for the last five years considering the fact that the applicant was not communicated his APAR for the last five years which is illegal and arbitrary.
d) Any other such further order/ directions as this Hon'ble tribunal may deem fit and proper in the Interest of justice."
OA 4495/2018
a) Quash/set-aside the impugned office order dated 06.11.2018 bearing reference no. HR/RECTT-DPC JULY/18thereby declaring promotion of total eight (8) candidates to the post of DGM, wherein all the eight candidates promoted to the post of DGM were juniors and far below in the seniority list than the applicant, got promotion violating all norms & principles of promotion and natural justice;
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Item No. 42/ C-3 OA No. 2419/2018 OA No. 4403/2018 OA No. 4495/2018 OA No. 414/2021
b) Quash/set-aside the impugned Circular dated 13.07.2018 bearing reference no.
HRM/Policy/2/18 regarding revision in Recruitment, Promotion, Seniority Rules of ITDC and all consequent actions of the respondents;
c) Direct the respondents to consider the applicant for promotion to the post of Deputy General Manager by treating her entry as "Outstanding" as for the last five years considering the fact that the applicant was not communicated his APAR for the last five years which is illegal and arbitrary.
d) Any other such further order/ directions as this Hon'ble tribunal may deem fit and proper in the Interest of justice."
OA 414/2021
"i. Direct the respondent No.1 to prepare a fresh seniority list and place the applicant above his juniors in compliance with the principles of service jurisprudence.
ii. Direct the respondents to take necessary action for the immediate promotion of applicant, Sh. Vikash Kumar Anand to the post of Sous Chef considering the fact that the applicant was not communicated his APAR for the years 2013- 14, 2015- 16, 2016-17 and 2017-18, which is illegal and arbitrary.
iii. Direct the respondents to restore the Seniority of Applicant whereby his juniors have become his seniors in other cadres.
iv. Consider the applicant for immediate promotion to the post of Sous Chef which is due since September 2013 by treating his entry "Good" or "Very Good" as "Outstanding" for the period from 2013-2014 to till date considering the fact that the applicant was not communicated his APAR for the years in timely 11 Item No. 42/ C-3 OA No. 2419/2018 OA No. 4403/2018 OA No. 4495/2018 OA No. 414/2021 manner 2013-14, 2014-2015, 2015-16, 2016- 17 and 2017-18 which is illegal and arbitrary.
v. Quash/set-aside the impugned Circular dated 13.07.2018 bearing reference no. HRM/Policy/2/18, regarding revision in Recruitment, Promotion, Seniority Rules of ITDC;
vi. Quash/set-aside the seniority list dated 22.11.2019.
vii. Direct the respondents to immediately conduct the DPC for the promotion of the applicant to the post of Sous Chef.
viii. Any other such further order/ directions as this Hon'ble tribunal may deem fit and proper in the interest of justice."
3. The facts and circumstances of OA No. 2419/2018 are discussed herein for the sake of brevity.
4. The brief facts of the case are that the applicant joined the respondent organization on 12.05.2006 as Chef-Grade- II and after completion of probation period he got permanent on 07.03.2007. He was promoted to the post of Sous Chef on 14.03.2013. He was working with all the satisfaction of the department since 2006 to 2017. However, the respondents have never communicated the APARs to the applicant which deprived him of any opportunity to make representation or improve upon his performance. It is an admitted fact that Benchmark for 12 Item No. 42/ C-3 OA No. 2419/2018 OA No. 4403/2018 OA No. 4495/2018 OA No. 414/2021 promotion up to Manager level was „Good‟ and on promotion from Manager to Sr. Manager, the Benchmark was also „Good‟. The applicant preferred an RTI Application dated 17.02.2017 for providing all the ACR/APAR. Applicant‟s letter dated 09.01.2017 was not responded to, so second reminder was also sent on 22.02.2017. Ultimately, the applicant left with no alternative but to approach this Tribunal seeking the aforementioned reliefs.
5. The grievance of the applicant in this OA is that prior to 2017, the DOPT guidelines have been adopted by the respondents wherein the „Good‟ was the Benchmark for up to the level of Senior Sous Chef and suddenly evaluating them for higher benchmark grading is un-tenable and he approached this Tribunal for redressal of his grievances.
6. In pursuance to the notices, the respondents have filed their counter reply and the applicant has filed rejoinder thereto.
7. It is submitted at the Bar that though the applicant has been awarded the APAR grading as „Good‟ which is a Benchmark prior to the new rules, since the new rule has come into the picture, the respondents‟ authority have considered their case under the new rules. 13
Item No. 42/ C-3 OA No. 2419/2018 OA No. 4403/2018 OA No. 4495/2018 OA No. 414/2021
8. In fact, the learned counsel for the respondents submits that this is the selection process and the applicants have to compete with the other candidates who are aspiring for the said post. Learned counsel for the respondents draws our attention to the relief 8(c) wherein it is stated that "Quash/set-aside the impugned Circular dated 17.02.2017" which is a circular regarding consideration of revision regarding promotion, seniority etc.
9. Learned counsel for the respondents further averred that in terms of Recruitment, Promotion & Seniority Rules under the heading "MODE OF PROMOTION", the mode of promotion in all such cases is rechristened as "selection" only. The element of selectivity (higher or lower) shall be determined with reference to the relevant benchmark ("Very Good" or "Good") prescribed for promotion. The Departmental Promotion Committee (DPC) determine the merit of those being assessed for promotion with reference to the relevant benchmark i.e" "Very Good" or "Good" and accordingly grade the officers as "fit" or "unfit" only and only those employees who are graded "fit" in terms of the prescribed benchmark by the DPC shall be included in the select panel in order of their inter-se seniority in the feeder grade.
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Item No. 42/ C-3 OA No. 2419/2018 OA No. 4403/2018 OA No. 4495/2018 OA No. 414/2021
10. Those employees who are graded "unfit" in terms of the prescribed bench-mark by the DPC shall not be included in the select panel and there shall not be any supersession in promotion among those who are graded "fit" in terms of the prescribed bench-mark by the DPC. It is specifically provided that eligibility for promotion will be subject to fulfillment of all the conditions laid down in the ITDC Recruitment, Promotion & Seniority Rules including the conditions that one should be the holder of the relevant feeder post on regular basis and that he should have rendered the prescribed eligibility services in the feeder post.
11. He further averred that the Benchmark, Grading & Preparation of Select List, for all Group "A" posts of the level of Rs. 15600-39100 +7600 (Grade Pay) (CDA) / Rs.29100-54500 (IDA) and above, the benchmark was Very Good and those who are grade as "fit" shall be included in the select panel in order of their inter se seniority in the feeder grade subject to availability of vacancies.
12. He goes on to argue that as per amendments in promotion policy vide circular dated 17 02 2017, the APAR for previous 5 years shall be taken into consideration for promotion. Further, for promotion upto the Manager level, 15 Item No. 42/ C-3 OA No. 2419/2018 OA No. 4403/2018 OA No. 4495/2018 OA No. 414/2021 the benchmark shall be "Good" and for promotion above the level of Manager shall be "Very Good" Prior to the said amendment, the benchmark for promotion from the level of Manager/Sous Chef to Sr. Manager/Sr. Sous Chef was "Good". Further, to meet the benchmark, 3 APARS of the preceding 5 years shall be sufficient to meet the relevant benchmark (very good or good) prescribed for promotion provided the remaining two APARs are not unsatisfactory.
13. He further submits that for the year 2013-14 and 2014-15, only those employees whose APAR was unsatisfactory were communicated of their APAR status as per practice It is therefore, denied that the applicant was deprived of the any opportunity of making representation against the assessment.
14. It is argued at length by the learned counsel for the respondents that since the applicant has already obtained the requisite Benchmark which is at that time „Very Good‟ for the purpose of considering promotion, thus there is no fault of non-communicating the APARs to the applicant.
15. Heard Mr. Sagar Saxena, learned counsel for the applicant and Mr. Ujjawal Kr. Jha, learned counsel for the respondents and perused the pleadings on record. 16
Item No. 42/ C-3 OA No. 2419/2018 OA No. 4403/2018 OA No. 4495/2018 OA No. 414/2021
16. Learned counsel for the applicant has highly relied upon the judgment dated 12.05.2008 of Hon‟ble Apex Court in Dev Dutt Vs. Union of India and Ors. Particularly, he draws support from Paras 12, 36 and 41, which read as under:-
"12. It has been held in Maneka Gandhi v. Union of India that arbitrariness violates Article 14 of the Constitution. In our opinion, the non- communication of an entry in the ACR of a public servant is arbitrary because it deprives the employee concerned from making a representation against it and praying for its upgradation. In our opinion, every entry in the c annual confidential report of every employee under the State, whether he is in civil, judicial, police or other service (except the military) must be communicated to him, so as to enable him to make a representation against it, because non- communication deprives the employee of the opportunity of making a representation against it which may affect his chances of being promoted (or get some other benefits). Moreover, the object of writing the d confidential report and making entries in them is to give an opportunity to a public servant to improve his performance, vide State of U.P. v. Yamuna Shanker Misra. Hence such non-communication is, in our opinion, arbitrary and hence violative of Article 14 of the Constitution.
xxx xxx xxx
36. In the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the annual confidential report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period 17 Item No. 42/ C-3 OA No. 2419/2018 OA No. 4403/2018 OA No. 4495/2018 OA No. 414/2021 so that he can make a representation for its upgradation. This in our opinion is the correct legal position even though there may be no rule/G.O. requiring communication of the entry, or even if there is a rule/G.O. prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Article 14 will override all rules or government orders.
xxx xxx xxx
41. In our opinion, non-communication of entries in the annual confidential report of a public servant, whether he is in civil, judicial, police or any other service (other than the military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution."
17. He further relied upon the judgment dated 22.10.2008 of Hon‟ble Apex Court in SLP (C) No 26556 of 2004, titled Abhijit Ghosh Dastidar Vs. Union of India and Others. He draws strength from Para 8 thereof which reads as under:-
"8. Coming to the second aspect, that though the benchmark "very good" is required for being considered for promotion, admittedly the entry of "good" was not communicated to the appellant. The entry of "good"
should have been communicated to him as he was having "very good" in the previous year. In those circumstances, in our opinion, non-communication of entries in the annual confidential report of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances of promotion or getting other benefits. Hence, such non- communication would be arbitrary, and as such violative of Article 14 of the Constitution. The same view has been 18 Item No. 42/ C-3 OA No. 2419/2018 OA No. 4403/2018 OA No. 4495/2018 OA No. 414/2021 reiterated in the abovereferred decision (Dev Dutt case', SCC p. 738, para 41) relied on by the appellant. Therefore, the entries "good" if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him."
18. The Hon‟ble Apex Court has held that non communication of entries in APAR of a public servant whether he is a civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances of promotion or getting other benefits. Hence, non communication would be arbitrary, and as such violative of Article 14 of the Constitution. It was further directed by the Hon‟ble Apex Court in Para 44 in Dev Dutt (Supra) that :-
"44. We, therefore, direct that the "good" entry be communicated to the appellant within a period of two months from the date of receipt of the copy of this judgment. On being communicated, the appellant may make the representation, if he so chooses, against the said entry within two months thereafter and the said representation will be decided within two months f thereafter. If his entry is upgraded the appellant shall be considered for promotion retrospectively by the Departmental Promotion Committee (DPC) within three months thereafter and if the appellant gets selected for promotion retrospectively, he should be given higher pension with arrears of pay and interest @ 8% per annum till the date of payment."
19. Further, the Hon‟ble Supreme Court in the matter of Ajit Singh Vs. UOI AIR 1999 (SC) 3471, has held that "the right to be considered for promotion is a fundamental right". Similar view was taken by the Apex Court in the 19 Item No. 42/ C-3 OA No. 2419/2018 OA No. 4403/2018 OA No. 4495/2018 OA No. 414/2021 matter of Delhi Jal Board Vs. Mahinder Singh rendered in SLP (Civil) 11726/2000 and Badrinath Vs. Government of Tamil Nadu rendered in AIR 2000 SC 3243.
20. We have taken note of the respondents‟ argument that that non communication of ACRs has not affected chances of applicant for promotion.
21. Accordingly, we hereby direct that:-
(i) the respondents to communicate ACRs to the applicant(s) within a period of one month from the date of receipt of a copy of this order and the applicant(s) may make representation within 10 days thereafter for upgradation of their ACR and a reasoned and speaking order be passed thereon within two weeks.
(ii) the respondents to consider the applicant(s) promotion to the next higher level by treating their entry of „Good‟ as „Very Good‟ or „Very Good‟ as „Outstanding‟ for the respective years in their ACRs for the which the applicant(s) were not communicated their ACRs and their case may be put before the DPC for consideration of promotion to the next higher level, if the applicant(s) are otherwise eligible.20
Item No. 42/ C-3 OA No. 2419/2018 OA No. 4403/2018 OA No. 4495/2018 OA No. 414/2021
22. Needless to say that since the initial grading by the respondents in ACR of the applicant(s) was/were sufficient for consideration for the next higher post prior to 2017, we give liberty to the respondents to reconsider and take appropriate steps to constitute a DPC within a period of two months‟ time, otherwise the above direction (i) has to be complied with.
23. It is also clarified that the applicant(s) will not be entitled for any monetary benefits for the said period.
However, they are entitled for notional benefit with all consequential benefits, if any.
24. With these observations, all these OAs stand allowed. There shall be no order as to costs.
(Dr. Chhabilendra Roul) (Ashish Kalia)
Member (A) Member (J)
/daya/