Central Administrative Tribunal - Delhi
Raj Pal Singh vs M/O Finance on 27 May, 2025
1 OANo.3414/2019
Central Administrative Tribunal
Principal Bench, New Delhi
OA No. 3414/2019
Reserved on: 06.05.2025
Pronounced on:27.05.2025
Hon'ble Mr. Justice Ranjit More, Chairman
Hon'bleMr. Rajinder Kashyap, Member (A)
Shri Raj Pal Singh, IES, Aged about 60 years,
Former-Director,
Niti Aayog, Government of India, New Delhi.
R/o A-10, Kondli Colony,
(Near Rajrani Hospital), Mayur Vihar, Phase-3,
East Delhi-110096
.....Applicant
(By Advocate: Mr. R V Sinha)
Versus
Union of India & Others : Through
1. The Secretary,
Department of Economic Affairs,
Ministry of Finance, North Block,
New Delhi-110001.
2. The Secretary,
Department of Personnel and Training,
Ministry of Personnel, Public Grievances & Pensions,
Room No. 112, North Block, New Delhi-110001.
3. The CEO/Secretary,
Niti Aayog,
Parliament Street, New Delhi-110001.
4. The Secretary,
Union Public Service Commission,
Dholpur House, Shahjahan Road, New Delhi.
5. Shri Shyam Lal,
14-A, Shriji Vatika, Tilak Nagar Zone,
Near Vandana Nagar, Indore, M.P.-452001.
-Respondents
(By Advocate: Mr. S.N. Verma)
2025.05.27
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2 OANo.3414/2019
ORDER
By Hon'ble Mr. Rajinder Kashyap, Member (A):-
By way of the present OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following reliefs in Para 8 of the OA: -
"8.1 To graciously direct the Respondent No. 1. 2 & 4 (Department of Economic Affairs) to grant the Non- Functional Upgradation to the Applicant by holding a Review DPC in the light of para 6.2.1 (c) of their Consolidated Guidelines issued by Respondent No.2 vide OM No.22011/5/86-Estt. (D) dated 10th April, 1989 (Annexure-A-30) and to take into consideration the APARS/ ACRS of previous years to evaluate the suitability of the Applicant for grant of NFU w.e.f. 18.09.2017 with consequential benefits from the date his junior has been granted NFU to the SAG level, and also quash the order dated 01/11/2019.
8.2 To direct the Respondent No.2 to make suitable amendments in the second proviso of Rule 5 (1) which stipulates, "Provided further that if a performance appraisal report for a financial year is not recorded by 31st of December of the year in which the financial year ended, no remarks may be recorded thereafter and the officer may be assessed on the basis of the overall record and self-assessment for the year, if he has submitted his self-assessment on time", and to incorporate the provisions para 6.2.1 (c) of their Consolidated Guidelines issued by Respondent No.2 vide OM No. 22011/5/86-Estt.(D) dated 10th April, 1989 so that for the purpose of granting promotion/ Non-Functional Upgradation, etc. of the officers/employees is not defeated on certain technical reasons and to assess the over-all suitability of the officers/ employees by taking into account the ACRs/ APARs of previous years pertaining to lower grades.
8.3 grant any other or further relief which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case, may also be granted in favour of the applicant.
8.4 That the cost of the proceedings may also be awarded in favour of the applicant."
2025.05.27 RAVI KANOJIA15:34:02+05'30' 3 OANo.3414/2019 BRIEF FACTS:-
2. The applicant was initially appointed as a Statistical Assistant in the year 1981 on the recommendations of the Staff Selection Commission (SSC). Subsequently, on being recommended by the Union Public Service Commission (UPSC), the applicant joined the Ministry of Rural Development as a Senior Technical Assistant (DPAP). The post of Senior Technical Assistant/Economic Investigator (Grade I) was later upgraded to that of Economic Officer, with the Department of Economic Affairs (DEA), Ministry of Finance designated as the cadre-
controlling authority.
2.1 In the year 1998, the applicant was inducted into the Indian Economic Service (IES) as part of the 1998 batch. In the year 2006, the applicant joined the erstwhile Planning Commission (now NITI Aayog) as a Research Officer, and was subsequently promoted to the post of Senior Research Officer (STS) in the pay scale of ₹10,000-325-15,200 with deemed date of promotion as 06.04.2006. The applicant assumed charge of the said post on 19.03.2007.
2.3 The Department of Economic Affairs, issued a final seniority list of IES officers (STS and JTS levels) pursuant to the judgment of this Tribunal in OA No. 627/2003. Meanwhile, the Department of Personnel & Training (DoP&T), vide Office Memorandum dated 24.04.2009, instructed all Ministries/Departments to grant higher pay scales (Non-Functional Upgradation) to officers of Organized Group 'A' Services who were senior by two or more years and had not yet been promoted to the concerned grade. In compliance, the DEA issued an order granting Non-Functional Upgradation (NFU) to Senior Administrative Grade (SAG) (Level-14 in the pay matrix) w.e.f. 18.09.2017 to several officers, including officers junior to the applicant. Notably, Shri Shyam Lal, Director, NITI Aayog, junior to the applicant, was granted NFU to SAG on non-functional basis 2025.05.27 RAVI KANOJIA15:34:02+05'30' 4 OANo.3414/2019 from 18.09.2017. However, the applicant was excluded from the said NFU list without any reasons being recorded or communicated.
2.4 Aggrieved by the discriminatory action, the applicant submitted detailed representations (Annexures A-24 and A-25) to the Department of Economic Affairs, seeking redress. It subsequently came to light that the Annual Performance Appraisal Reports (APARs) for the years 2011-12, 2013-14, and 2014-15 were erroneously treated as Non-Reporting Certificates (NRCs) by the Department. However, as per paragraph 4.33 of the OA, the said APARs were in fact available with the APAR Cell of NITI Aayog, and NRCs had been forwarded to the DEA erroneously. This error significantly prejudiced the applicant‟s case before the Screening Committee.
2.5 The applicant superannuated on 30.09.2019. Aggrieved by non-grant of NFU to SAG, the applicant approached this Tribunal by filing OA No. 2767/2019. The said OA was disposed of at the admission stage itself by a brief order dated 17.09.2019 (Annexure A-30), directing the respondents to assign detailed reasons for denying the NFU benefit to the applicant. Pursuant thereto, the respondents issued the impugned order dated 01.11.2019 (Annexure A-1), stating that a proposal for NFU to the 1998 batch of IES officers at SAG level was placed before the Screening Committee, and that the Committee found the applicant "not fit", without assigning any further reasons or elaborating the criteria applied. Hence, this OA.
REPLY OF THE RESPONDENTS:-
3. Pursuant to notice issued by this Tribunal, the respondents have filed their reply wherein they have stated that the applicant, became eligible for consideration for grant of NFU in the year 2018. The matter was placed before the Screening Committee in its meeting held on 25.07.2018, wherein the proposal for grant of 2025.05.27 RAVI KANOJIA15:34:02+05'30' 5 OANo.3414/2019 NFU to officers of the 1998 batch was examined in accordance with the DoP&T guidelines issued vide OM dated 06.11.2007 (pertaining to NFU for officers of Organised Group „A‟ Services in PB-3 and PB-4) and the Indian Economic Service Rules, 2008, for elevation to the level of Joint Secretary (SAG). Upon evaluation, the Screening Committee found the applicant "not fit" for the grant of NFU.
3.1 The Screening Committee applied the same eligibility criteria and benchmark as applicable to promotions to the SAG level for the vacancy year 2017-18, in accordance with DoP&T OM No. 22011/5/86-Estt.(D) dated 10.04.1989 and OM No. 22011/3/2007-Estt.(D) dated 18.02.2008. While considering the applicant‟s case, the Committee noted that APARs for the years 2011-12, 2013-14, and 2014-15 were not available on record. Moreover, despite repeated reminders, the applicant failed to submit the requisite self-appraisal reports for the said periods. As such, the Committee was of the opinion that the absence of critical APARs rendered the applicant‟s record incomplete and insufficient for a favourable recommendation, and accordingly, the applicant was found not eligible for grant of NFU to SAG w.e.f. 18.09.2017.
3.2 The respondents further submit that, as per DoP&T instructions, self-appraisals for the APARs are to be submitted by the officer on or before 15th April following the appraisal year ending 31st March. The Reporting Officer is required to complete the report by 30th June of the same year. In the case of the applicant, while the APAR for 2014-15 was required to be completed by the Reporting Officer by 30th June 2015, the said report was only submitted in January 2017. Though the Reviewing Authority reviewed the APAR on 30.07.2017, it was received in the APAR Cell of NITI Aayog only on 04.09.2018, as evidenced by the date of receipt endorsed on the document. The APAR was disclosed to the applicant on 05.09.2018, and no representation or 2025.05.27 RAVI KANOJIA15:34:02+05'30' 6 OANo.3414/2019 objection was filed by the applicant within the prescribed 15-day period thereafter. Furthermore, the applicant has not provided any evidence as to when the self-appraisal was submitted to the Reporting Officer, and the relevant section in the APAR form remains blank. In the absence of such information, and in line with the applicable guidelines, the APARs for the aforementioned years are liable to be treated as „non-est‟.
3.3 The respondents have also highlighted that multiple reminders and circulars were issued by the NITI Aayog/erstwhile Planning Commission to ensure timely completion of APARs. These include circulars dated 20.06.2014, 28.07.2014, 06.04.2015, 15.05.2015, 30.06.2015, and 11.08.2015, all of which emphasized the importance of timely submission of self- appraisals. In light of these facts, the respondents contend that the applicant cannot shift the blame upon the authorities for non- completion or delay in processing of his APARs.
REJOINDER AND WRITTEN SUBMISSIONS ON
BEHALF OF THE APPLICANT:-
4. In response to the reply filed by the respondents, the applicant has filed rejoinder as well as written submissions, wherein it is reiterated that the act of the respondents, besides being against all canons of natural justice and fair play, is ultra- vires of the statute itself, which is evident from Notification vide GSR 596 (E) dated 15th June 2017 issued by the Respondent No. 2 wherein it has been clearly stated that the performance appraisal report not recorded in terms of the provisions of these rules and instructions issued thereunder shall be treated as non-est. Therefore, once the APARs of particular years have been treated as non-est, the respondents are under lawful obligation to comply with the Consolidated Guidelines. In Para 6.2.1 (c) contained in OM No. 22011/5/86-Estt.(D) dated 10th April 1989 issued by the Respondent No. 2, it has been provided as under:
2025.05.27 RAVI KANOJIA15:34:02+05'30' 7 OANo.3414/2019 "(c) Where one or more CRs have not been written for any reason during the relevant period, the DPC should consider the CRs of the years preceding the period in question and if in any case even these are not available, the DPC should take the CRs of the lower grade into account to complete the number of CRs required to be considered, as per (b) above. If this is also not possible, all the available CRs should be taken into account."
4.1 In support of the claim of the applicant, reliance has been placed on the judgments of Hon‟ble High Court of Delhi in the matter of Union of India Vs. V.S. Arora & Ors., reported as 2012 SCC OnLine Del 3193, as also on the decision of this Tribunal in the matter of Ajay Kumar Singh Vs. Union of India in OA No.1105/2014, reported as MANU/CA/0921/2015.
5. We have heard learned counsels for the parties and perused the pleadings on record as well as the judgments on which reliance has been placed by the parties.
ANALYSIS
6. In a nut shell the reasons for non grant of NFU to the applicant was that while considering his case, the DPC found that Annual Performance Appraisal Reports (APARs) for the years 2011-12, 2013-14, and 2014-15 were not available on record and No Report Certificates had been issued in respect of the above APARs. Despite the above „No Report Certificates‟, the Appointment Committee of Cabinet (ACC) vide letter dated 4.9.2020 (at page 21 of the rejoinder) recommended the name of the applicant along with other officers for promotion to the SAG in the Indian Economic Service in Level 14 in the pay matrix (Rs.14420-28200/-) for the panel year 2018 and 2020 w.e.f. the date of assumption of the charge of the post or until further orders, wherein the applicant‟s name appears at Serial No.2 with respect to the panel for the year 2018. If an APAR(s) is/are not prepared and submitted according to the prescribed rules and instructions, it may be treated as non-est. When an APAR is declared as "non-est," it essentially means that the said report is 2025.05.27 RAVI KANOJIA15:34:02+05'30' 8 OANo.3414/2019 not considered valid and cannot be used for any evaluation or promotion. If an APAR for a specific year or period is not available, a No Report Certificate (NRC) should be issued and placed in the APAR dossier, which has been done in this case. This certificate explains why the APAR was not submitted. If the officer who has APARs from previous years, needs to complete a certain number (e.g., 5 years) then the previous year‟s APARs even of lower grade may be forwarded to meet the requirement. It is apt to state that in such a situation, the consolidated guidelines as contained in para 6.2.1 (c) in the OM dated 10.4.1989, provide that „where one or more CRs have not been written for any reason during the relevant period, the DPC should consider the CRs of the years preceding the period in question and if in any case even these are not available, the DPC should take the CRs of the lower grade into account to complete the number of CRs required to be considered, as per (b) above. If this is also not possible, all the available CRs should be taken into account.'
7. The Hon‟ble High Court of Delhi in the matter of Union of India Vs. V.S. Arora & Ors., reported as 2012 SCC OnLine Del 3193 in paras 24 and 25 has held as under:
"24. Therefore, the position that emerges is that the decision in Abhijit Ghosh Dastidar (supra) holds the field. Now, what is it that Abhijit Ghosh Dastidar (supra) decides? It has, in the first instance, while affirming Dev Dutt (supra), concluded that non- communication of an ACR is violative of the constitutional rights of a government servant/employee. In the second instance, it has stated that such below benchmark ACRs ought not to be taken into consideration while the question of promotion of a particular government servant is in contemplation. Now, that leaves us with the further question as to what is to be done after we ignore/do not consider the below benchmark ACRs. In this regard, we have clear guidelines contained in Chapter 54 of the Manual on Establishment and Administration for Central Government Offices, which have been issued by the Government of India for DPCS (G.I., Dept. of Per. & Trg., O.M. No. 22011/5/86-Estt. (d), dated the 10th April, 1989 as amended by O.M. No. 22011/5/91-Estt.(d), dated the 2025.05.27 RAVI KANOJIA15:34:02+05'30' 9 OANo.3414/2019 27th March, 1997 as amended/substituted vide Dept. of Per. & Trg., O.M. No. 22011/5/98-Estt. (d), dated the 6th October, 2000). The relevant portion of the guidelines reads as under:-
"6.2.1. Confidential Rolls are the basic inputs on the basis of which assessment is to be made by each DPC. The evaluation of CRs should be fair, just and non- discriminatory. Hence-
(a) The DPC should consider CRs for equal number of years in respect of all officers considered for promotion subject to (c) below.
(b) The DPC should assess the suitability of the employees for promotion on the basis of their Service Records and with particular reference to the CRs for five preceding years irrespective of the qualifying service prescribed in the Service/Recruitment Rules. The 'preceding five years' for the aforesaid purpose shall be decided as per the guidelines contained in the DoP&T, O M. No. 22011/9/98-
Estt. (D), dated 8-9-1998, which prescribe the Model Calendar for DPC read with OM of even number, dated 16-6-2000. (If more than one CR have been written for a particular year, all the CRs for the relevant years shall be considered together as the CR for one year.) xxxx xxxx xxxx xxxx
(c) Where one or more CRs have not been written for any reason during the relevant period, the DPC should consider the CRs of the years preceding the period in question and if in any case even these are not available, the DPC should take the CRs of the lower grade into account to complete the number of CRs required to be considered as per (b) above. If this is also not possible, all the available CRs should be taken into account.
xxxx xxxx xxxx xxxx"
25. From the above, it is clear that the DPC should consider the confidential reports for equal number of years in respect of all the employees considered for promotion subject to (c) mentioned above. The latter sub-paragraph (c) makes it clear that when one or more confidential reports have not been written for any reason during the relevant period, the DPC should consider the CRs of the years preceding the period in question and if, in any case, even these are not available, the DPC should take the CRs of the lower grade into account to complete the number of CRs required to be considered as per sub-paragraph (b) above. If this is also not possible, all the available CRs should be taken into account. We are of the view that the same would apply in the case of non- communicated below benchmark ACRs. Such ACRS would be in the same position as those CRs which have not been written or which are not available for 2025.05.27 RAVI KANOJIA15:34:02+05'30' 10 OANo.3414/2019 any reason. Thus, it is clear that below benchmark ACRs, which have not been communicated, cannot be considered by the DPC and the DPC is then to follow the same procedure as prescribed in paragraph 6.2.1(c), as indicated above.
(emphasis suppled)
8. Further, SLP (DIARY NO. - 13461/2013), titled Union of India vs. V.S. Arora, preferred by the Union of India against the aforesaid judgment of the Hon‟ble High Court of Delhi was dismissed by the Hon‟ble Supreme Court vide judgment dated 19.11.2013.
9. This Tribunal in Ajay Kumar Singh Vs. Union of India in OA No.1105/2014 (supra), in paras 9, 10, 18 and 23 held as under:
9. In yet another case titled as Badrinath v. Government of Tamil Nadu & Ors. (supra), the Hon'ble Supreme culled out the basic principles on the basis of which the Courts/Tribunals are to consider prayer for intervention, relevant portion whereof is extracted hereunder:--
*59. From the above judgments, the following principles can be summarised:
(1) Under Article 16 of the Constitution, right to be 'considered' for promotion is a fundamental right. It is not the mere 'consideration' for promotion that is important but the consideration must be 'fair' according to established principles governing service jurisprudence.
(2) Courts will not interfere with assessment made by Departmental Promotion Committees unless the aggrieved officer establishes that the non-promotion was bad according to Wednesbury Principles or was it mala fides.
(3) Adverse remarks of an officer for the entire period of service can be taken into consideration while promoting an officer or while passing an order of compulsory retirement. But the weight which must be attached to the adverse remarks depends upon certain sound principles of fairness.
(4) If the adverse remarks relate to a distant past and relate to remarks such as his not putting his maximum effort or so on, then those remarks cannot be given weight after a long distance of time, particularly if there 2025.05.27 RAVI KANOJIA15:34:02+05'30' are no such remarks during the period before his 11 OANo.3414/2019 promotion. This is the position even in cases of compulsory retirement.
(5) If the adverse remarks relate to a period prior to an earlier promotion they must be treated as having lost their sting and as weak material, subject however to the rider that if they related to dishonesty or lack of integrity they can be considered to have not lost their strength fully so as to be ignored altogether.
(6) Uncommunicated adverse remarks could be relied upon even if no opportunity was given to represent against them before an order of compulsory retirement is passed."
In this very judgment, the Hon'ble Supreme Court held that it is not within the ambit of Tribunals/Court to issue mandamus either to promote the employee to super-time scale or to assess his gradings. However, relying upon the decision in Comptroller & Auditor General of India v. K.S. Jagannathan, MANU/SC/0066/1986: 1986(2) SLJ 1 (SC): 1986(2) SCC 679, the Hon'ble Supreme Court upheld the powers of the High Courts while exercising their jurisdiction under Article 226 to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on relevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring discretion or the policy for implementing which such discretion has been conferred. In such cases and any other fit and proper case, the High Court can, in the exercise of its jurisdiction under Article 226, issue a writ and direct the authority to perform in a proper and lawful manner of the discretion conferred upon it.
10. In Syed T.A. Naqshbandi & Ors. v. State of Jammu & Kashmir & Ors. (supra), it is provided that judicial review is permissible only for finding whether the process in reaching the decision has been observed correctly or the discretion has been exercised equitably in respect of all the members considered.
*** *** *** ***
18. This practice appears highly iniquitous and being against the employee. Assuming that the employee defaults in submission of his self-appraisal, the question that arises is that will his ACRs be considered to be non-reporting or the department has option to record their remarks in respect of the employee on the basis of his ACRs alone.
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12 OANo.3414/2019
23. In view of the afore discussions, we find that the decision of the Screening it supported by reasons. Therefore, we have no hesitation in quashing the same with a Committee held on 27.2.2014 is attended by lack of transparency and is not direction that a fresh DPC should be convened to consider the case of the applicant for promotion to the post of Additional DGP. We have already noted that while dealing with the ACRs, the respondents have not followed the instructions for writing ACRS, inasmuch as if the ACRs were submitted late, they had the liberty to record the same, even if the statistical supplements were not supplied by the applicant. We find that the respondents have defaulted in their duty, for which the applicant cannot be held responsible. If the applicant had not submitted his ACRs within the stipulated time, it was the duty of the respondents to take appropriate action in accordance with rules. While considering the case of the applicant, the review Screening Committee, as have been directed to be convened, will also consider these facts as to what extent the ACRs submitted by the applicant have received a fair consideration, and whether the ACRs should have been placed on record in the light of observations made in this order. The meeting of the DPC should be held within a period of two months from the date of receipt of certified copy of this order and the respondents shall issue a final order within a further period of one month which shall be a speaking and reasoned order. In the above terms, the OA stands disposed with no order as to costs."
10. In view of the facts and circumstances of the case and for the reasons recorded above as well as taking into consideration the aforementioned judgments of the Hon‟ble Apex Court, Delhi High Court as well as of this Tribunal (supra), we are of the considered view that the present OA deserves to be disposed of. Accordingly, the same is disposed of with the following directions:-
(i) The respondents are directed to convene a Review DPC to consider the case of the applicant by ignoring the above Non-Reporting Certificates (NRCs) for the APARs of the years, i.e., 2011-12, 2013-14 & 2014-015 and for the purpose of completing the APARs for five years, his previous years‟ APARs, even of the lower grades, may be considered.
(ii) Upon consideration of the applicant‟s case, if the Review DPC finds the applicant fit for promotion, he 2025.05.27 RAVI KANOJIA15:34:02+05'30' ought to be granted NFU from the date when his 13 OANo.3414/2019 immediate junior was granted such NFU to SAG level, with all consequential benefits.
(iii) The above exercise shall be completed within a period of eight weeks from the date of receipt of a certified copy of this Order.
11. The OA is disposed of in above terms. There shall be no order as to costs.
12. Pending MA(s), if any, shall also stand disposed of.
(Rajinder Kashyap) (Justice Ranjit More)
Member(A) Chairman
/ravi/ks/
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