Central Administrative Tribunal - Delhi
Abhijit Bhowmick vs M/O Power on 10 April, 2026
1
Item No. 24(C-6) OA 638/2017
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA 638/2017
This the 10th day of April, 2026
Hon'ble Mr. B. Anand, Member (A)
Hon'ble Mr. Ajay Pratap Singh, Member (J)
Abhijit Bhowmick Age About 59+ years,
S/o Sh. Anil Bandhu Bhowmick, Working as Deputy Director (Admn.)
National Power Training Institute (NPTI), Sector-33, Faridabad,
Haryana, R/o Staff Quarter No. 405, Type-4, NPTI Complex, Sector-33,
Faridabad, Haryana.
...Applicant
(By Advocate:-Mr. Gaya Prasad)
Versus
Union of India through:
1. Secretary (Power),Ministry of Power, Govt.of India Shram Shakti
Bhawan, New Delhi.
2. Director General,National Power Training Institute, (Ministry of
Power, Govt. of India), Sector-33, Faridabad, Haryana.
3. Director (F & A), National Power Training Institute, (Ministry of
Power, Govt. of India), Sector-33, Faridabad, Haryana.
...Respondents
(By Advocate: Mr. Amit Anand)
O R D E R (ORAL)
As per: B. Anand, Member (A) Brief facts of the case are that the applicant was appointed as Junior Accountant on 14.09.1982 and thereafter was promoted as Accounts Officer in the year 1992 and subsequently promoted as Assistant Director (Finance) on 05.01.2005. Thereafter the applicant was promoted as Deputy Director (Admn.) on 22.10.2014.
2. The grievance of the applicant is that he was eligible for consideration for promotion to the post of Deputy Director ABHAY ABHAY CHAUDHARY CHAUDHARY 2026.04.17 09:57:01+05'30' 2 Item No. 24(C-6) OA 638/2017 (Finance) for which the eligibility is that he should put in 5 years of service in the post of Assistant Director (Finance). In as much as he was posted as Assistant Director (Finance) on 05.01.2005 and he had completed the residency period in that post on 04.01.2010 and on the said date, the post of Deputy Director (Finance) was very much available in the organization he should have been considered for promotion to the said pots. However as he had certain adverse remarks in his APAR for the previous years and by the time the said adverse remarks could be expunged and his grading in the APAR could be suitably reflected by the competent authority, considerable delay happened and he became eligible with appropriate grading in the APAR only on 13.08.2014. Only thereafter the respondents promoted the applicant to the equivalent post of Deputy Directory (Admn.) on 22.10.2014 as the post of Deputy Directory (Finance) had been deemed to be abolished. The learned counsel for the applicant states that although his APAR was upgraded on 13.08.2014, he is quoting the following judgments of Constitutional Courts to the effect that after the APAR has been upgraded , the effect of such upgraded grading in the APAR would be retrospective and not prospective. In this regard he relies upon the following judgments-
(i) OA No 97/2017, Abhijit Bhowmick Vs. Union of India & Ors dated 10.01.2017.
(ii) Judgment dated 08.10.2010 of the Hon'ble Delhi High Court in the case of UOI Vs. Krishna Mohan Dixit & Ors in W.P. (C) 6013/2010 & Ors and highlighting para 22 which reads as under-
"22. In view of the aforesaid, we are of the considered view that the orders passed by the Tribunal in all these cases cannot be sustained. Thus the orders passed by the Tribunal would stand modified to the extent that the adverse ACRs which falls within the consideration zone i.e. in the relevant 5 years before the date of holding the DPC, if not communicated earlier but are below bench mark would be communicated within a period of 4 weeks from today to the incumbent officer if not communicated so far. The respondent would then be eligible to make a representation within 15 days thereof if not made already, and that such representation would be decided by the competent authority, which, of course, would be higher in rank to the authority who gave the adverse ACR within next 2 weeks irrespective of the fact whether the Reporting Officer or the ABHAY ABHAY CHAUDHARY CHAUDHARY 2026.04.17 09:57:01+05'30' 3 Item No. 24(C-6) OA 638/2017 Reviewing Officer or both are available or not. In case, the ACR is upgraded, making the incumbent eligible for consideration, review DPC would be held based upon the reappraised ACRs for the relevant period within six weeks. In case, the review DPC finds the incumbent fit for promotion, the benefit thereof would be given to him from the date when he was entitled for promotion to the next post had the ACR in question would not have been considered averse to him with all consequential benefits."
(iii) Judgment dated 01.10.2014 of the Hon'ble Delhi High Court in the case of S.D. Dobhal Vs. UOI & Ors in W.P. (C) 452/2009 and highlighting para 42 (iii),which reads as under-
"42.
iii. In the event of up-gradation of his adverse entries, the appellant shall be considered for promotion retrospectively by the Review DPC within a period of two months thereafter and if he gets selected for promotion retrospectively, then he shall be entitled to seniority from such date and to arrears of pay and all other consequential benefits."
(iv) Judgment dated 03.08.2015 of the Hon'ble Delhi High Court in the case Director General E.S.I.C Vs. Dr. Satish Kumar Azad & Anr. & Ors in W.P. (C) 7193/2015 & Ors and highlighting para 3, which reads as under-
"3.By the impugned order dated 17.7.2013 the Original Applications filed by the petitioners (respondents herein) were allowed. The respondents before the Central Administrative Tribunal had placed heavy reliance on the decision of the Central Administrative Tribunal in the case of Dr. (Mrs.) Nirmal Singh Vs. Union of India through Secretary, Ministry of Labour and Another passed in OA No. 43/2010 wherein observations of various judgments of the Hon ble Supreme Court was noticed including the judgment rendered in the case of Dev Dutt v. Union of India & Ors., reported at 2008 (8) SCC 725. The Tribunal also relied upon the decisions of the Hon'ble Supreme Court of India and Hon ble High Court of Delhi and allowed the OAs."
(v) Judgment dated 12.05.2008 of the Hon'ble Supreme Court in the case of Dev Dutt Vs. Union of India & Ors in Civil Appeal No. 7631/2002 and highlighting para 48, which reads as under-
"48. 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 thereafter. If his entry is upgraded the appellant shall be ABHAY ABHAY CHAUDHARY CHAUDHARY 2026.04.17 09:57:01+05'30' 4 Item No. 24(C-6) OA 638/2017 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 @ 88 per annum till the date of payment."
(vi) Order dated 23.04.2013 of the Hon'ble Supreme Court in the case of Sukhdev Singh Vs. Union of India and Others in Civil Appeal No. 5892/2006 and highlighting para 11, which reads as under-
"11. Insofar as the present case is concerned, we are informed that the appellant has already been* promoted. In view thereof, nothing more is required to be done. Civil Appeal is disposed of with no order as to costs. However, It will be open to the appellant to make a representation to the concerned authorities for retrospective promotion in view of the legal position stated by us. If such a representation is made by the appellant, the same shall be considered by the concerned authorities appropriately in accordance with law."
(vii) Judgment dated 23.07.2015 of the Hon'ble Supreme Court in the case of Sukhdev Singh Vs. Union of India and Others in Civil Appeal No. 5892/2006 and highlighting para 10 & 11, which read as under-
"10. In case the appellant is found to be entitled for promotion to the post of Chief Commissioner of Income Tax, he shall be promoted to the said post, with effect from the date of his entitlement. In such an eventuality, he shall also be entitled to all arrears of salary, as would have been payable to him, if he had been promoted as Chief Commissioner of Income Tax at the right time. Simultaneously, he would be entitled to revision of his retiral benefits.
11. In case the appellant is found suitable for promotion, this order should not be taken as permitting the authorities, to interfere with the promotions already made. Suffice it to state, that to accommodate the appellant, it shall be open to the authorities to create a notional post, for giving effect to the instant order."
3. The sum and substance of these judgments are that in the event of below benchmark grading or/and adverse remarks found in the APAR for the relevant period which is normally taken into consideration by the DPC for promotion, if such adverse remarks or below benchmark grading are subsequently upgraded/expunged by the competent authority, its effect on the career prospects of the applicant will be retrospective and not prospective i.e., as if such ABHAY ABHAY CHAUDHARY CHAUDHARY 2026.04.17 09:57:01+05'30' 5 Item No. 24(C-6) OA 638/2017 adverse remarks had not there been at all in the APAR ab initio from the beginning.
4. The grievance of the applicant is that although he became eligible for promotion to the post of Deputy Director (Finance) on 04.01.2010 and the posts were available and sanctioned as evident from Annexure A-3 (page 61-62 of the OA) however, the respondents have taken a stand that the posts are "deemed abolished " and not available. Therefore, the respondents have accommodated the applicant in the newly created post of Deputy Director (Admn.) only on 22.10.2014. In essence, the applicant contends that once the adverse remarks and below-benchmark gradings in the APAR were expunged by the competent authority then the applicant became eligible for promotion to the post of Deputy Director (Finance) w.e.f. 01.04.2010 in light of the judgments cited hereinabove in paragraph 2. However, due to the respondents' failure to convene the DPC in a timely manner, he was unjustly denied promotion with retrospective effect.
5. The learned counsel for the respondents by way of assertions in the counter reply vehemently opposes the assertions of the learned counsel for the applicant that the post of Deputy Director (Finance) was available in the year 2010 (Annexure A-3). They state that the post said to be have sanctioned at Annexure A-3(Page 61-62 of the OA) is incorrect in as much as it is only an internal communication from the Staff Inspection Unit (SIU) of the Department of Expenditure, which only quantifies the nature of the job and the requirement of personnel to complete those jobs and the said SIU have tentatively come to the conclusion that the post of Deputy Director (Finance) and other posts found at Annexure-3 are required for the effective functioning of the organization. The respondents also rebuts the contention of the applicant that although the OM dated 09.09.2003 of the Ministry of Finance, Department of Expenditure has indeed delegated the powers to the Ministries/Departments concerned to consider and decide in consultation with their Internal Finance Division for revival of such posts up to level of Deputy Secretary/Director subject to the fulfillment of the following conditions:
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(i) There exists functional justification;
(ii) Matching savings are available from out of live posts' i.e. filled up posts or posts vacant for less than one year;
(iii) It is not a direct recruitment vacancy (falling under DOPI OM dated 10,5.2001 on Optimization of direct recruitment to Civilian posts);
(iv) It has not been abolished/ recommended for abolition in compliance to any specific Govt, instruction, eg. 10% economy cut or ERC Report, IWSU / SIU study etc. However, the respondents have not done so.
6. He further states that National Power Training Institute (NPTI) in only an autonomous organization under the Ministry of Power and it is not a department as averred by the applicant. He states that indeed the respondent's organization/National Power Training Institute (NPTI) had written a letter dated 27.07.2012 to the Ministry of Power highlighting the functional need for the revival of the post in question, however the final orders for the revival of the deemed abolished posts of NTPI came out only on 31.07.2013 and consequently the new post of Deputy Director (Finance) was created on 06.08.2014 and the applicant could be promoted on 22.10.2014. Under these circumstances, he states that from the chronology of dates it is clear that although the five years residency period of the applicant in the post of Assistant Director (Finance) ended on 04.01.2010, the respondent's organization are required to conduct DPC only from 01.01.2011 as per the instructions of the DoPT and this fact was well within the knowledge of the applicant. In support of his contention, the learned counsel for the respondents drew the attention of the Bench to the averments made in para 4.19 of the OA by the applicant wherein the applicant himself is seeking promotion retrospectively from 04.01.2010 or at least by 01.01.2011 if the crucial date for determining eligibility of officers for promotion is 1st January of vacancy year as per DoPT OM No 22011/9/98-Estt (D) dated 08.09.1998.
7. We have considered the submissions of the learned counsels for the respective parties and gone through the proceedings with the help of them.
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8. The short issue to be adjudicated is whether the applicant has got the right for retrospective promotion due to the fact that for no fault of his, he is being deprived of promotion to the post of Deputy Directory (Finance) in question on the ground that the post of Deputy Director is deemed to be abolished as it was lying vacant for one year from its initial creation on 28.01.2009 and thereby as per the norms of Finance Ministry was deemed abolished on 28.01.2010. The applicant contended that the post in question was not found abolished on the date he became eligible for the promotion on the said post on 04.01.2010, for which he has shown us Annexure A-3 at page 61 of the OA. However, we find that although judgments of the Constitutional Courts relied upon by the applicant state that in the event of expungement of adverse remarks or below benchmark grading, benefits of such upgradation/expungement by the competent authority will accrue to the applicant with retrospective effect and not prospective effect, but the peculiar situation which is prevailing in the present case is that by the time the applicant became eligible for promotion on account of such expungment of adverse remarks and/or upgradation of below benchmark grading, the post of Deputy Director (Finance) was not there.
9. During the course of our previous hearing in the matter we posed a question to the counsels whether supernumerary posts can be created with retrospective effect i.e. 04.01.2011. We find that whether a post is to be created or whether a post is required to effectively discharge the functions of the respondent's organization is a call to be taken by the concerned department/organization and the Court cannot decide whether the department/organization requires a particular post or not. Consideration for promotion happens only when the post is available. Therefore, the contention of the applicant that the respondents delayed the process of convening the DPC is not tenable because the question of convening of DPC for consideration for promotion does not arise in the event of non- availability of post. The applicant has only a vested right for consideration of promotion to a post; but if the post itself is not available for his occupation, he cannot claim a vested right for promotion.
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10. In the above facts and circumstances, we find that the present OA is devoid of merits and accordingly stands dismissed. No costs.
(Ajay Pratap Singh) (B. Anand)
Member(J) Member (A)
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