Central Administrative Tribunal - Delhi
Ashish Kumar Yadaav vs Department Of Personnel And Training on 23 July, 2025
1
OA No.1442/2022
Item No. 47 (C-4)
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA No. 1442/2022 with M.A No 1541/2022
Reserved on : 11.07.2025
Pronounced on : 23.07.2025
Hon'ble Mrs. Harvinder Kaur Oberoi, Member (J)
Hon'ble Dr. Sumeet Jerath, Member(A)
Ashish Kumar Yadav,
S/o. Late Sh. Ram Singh Yadav
Rank-Section Officer
Grade- B
AGED 44 years
S/o.- Late Shri Ram Singh Yadav
ADDRESS Q.No.1167, Type-4,
NH-4, NIT, Faridabad (Haryana) ....Applicant
(By Advocate : Mr. Harpreet Singh Hora)
Versus
1. Union of India,
Ministry Of Personnel,
Public Grievances and Pension,
Department Personnel & Training,
Through secretary, North Block,
New Delhi-110001.
2. Union of India,
Ministry of power,
through Secretary,
Shram Shakti Bhawan
Rafi Marg. New Delhi-110001
Also at: F-Wing. Second Floor Nirman Bhawan,
New Delhi-110011
2
OA No.1442/2022
Item No. 47 (C-4)
3. Union Public Service Commission,
Through The Chairman,
Dholpur House. Shahjahan Road,
New Delhi-110069
4. Union of India,
Ministry Of Labour and Employment
through the Chief Labour Commissioner (Central),
Shram Shakti Bhawan,
New Delhi-110001 .... Respondents
(By Advocate: Mr. R. V. Sinha with Mr. A. S. Singh for R-3,
Mr. Rajeev Kumar with Mr. Bhuvnesh Shukla)
ORDER
Hon'ble Dr. Sumeet Jerath, Member (A):
This OA has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-
"Direct the Respondents to review the DPC dated 04.12.2020 immediately, and;
(II) Direct the Respondent to promote the applicant as Under Secretary w.e.f. 21.12.2020, (III) Grant arrears of pay and consequent benefit to the applicant from 21.12.2020, and;
(IV) Award litigation costs to the Applicants, and;
(V) Pass any further orders or directions in favour of the applicants as this Hon'ble Tribunal may deem fit and proper in the present facts and circumstances and in the interest of justice."
2. The factual matrix of the case as per the counsel of the applicant is that the applicant is a Section Officer (SO) of Central Secretariat Service (CSS) Cadre (SOSL 2012) serving 3 OA No.1442/2022 Item No. 47 (C-4) since 26.12.2014. Since 06.09.2016, he has been serving in the office of the Chief Labour Commissioner (Central), Ministry of Labour and Employment for promoting the SOs to the next hierarchical post of Under Secretary, the respondents-DopT sought APAR Dossier and vigilance clearance of the applicant on 06.11.2020. Pursuant to the said communication, the APAR Dossier and the vigilance clearance was sent to the DoPT by his previous department i.e., Ministry of Power on different dates however before 23.11.2020, well before the DPC meeting. He highlighted that the applicant is presently working as Section Officer in the Ministry of Labour since 06.09.2019 and this was duly intimated by the Ministry of Power to the DoPT. Subsequently, on 01.12.2020 provisional common seniority list of SO Grade of CSS for the year 2012 was issued by DoPT wherein he figured at Sl. No. 122. Thereafter DPC was convened on 04.12.2020 for the said promotion. Consequent to the said DPC, promotion Order dated 21.12.2020 was issued by the DoPT wherein the applicant's name was left out deliberately and his juniors were promoted. Thereafter, on 16.09.2021, DoPT responded to the RTI application of the applicant stating that the APAR of the applicant was received late i.e., on 22.12.2020 after the issuance of promotion order dated 21.12.2020. However, the certified copy of the Dak 4 OA No.1442/2022 Item No. 47 (C-4) register of Ministry of Power clearly suggest that the applicant's APAR were received in DoPT on 23.11.2020 well before the DPC meeting. Counsel for the applicant argued that if the respondents had not received applicant's APAR before the DPC they could have taken appropriate measures to call for the same as has been done by them earlier while promoting SOs in the year 2009, 2010 and 2011. This time they had failed to take any steps. Aggrieved, the applicant preferred various representations the latest one being 13.08.2021 but to no avail. He sent legal notice also on 21.01.2022 but did not receive any response from the respondents till date. Hence, the present OA has been filed.
3. The counsel of the applicant argued assiduously using the following grounds :-
"A. The respondents have blatantly ignored the fact that the reason given by DoPT i.e. non-availability of APAR Dossier is incorrect whereas the applicant's APAR Dossier was delivered in DoPT on 23.11.2020 well before DPC meeting and the respondents have overlooked the said fact thereby causing discrimination with the applicant.
B. It is a settled principle that the proceedings of a DPC may be reviewed only if the DPC has not taken all material facts into consideration or if material facts have not been brought to the notice of the DPC or if there have been grave errors in the procedure followed by the DPCs. One of the situations in which review DPC can be held is where eligible persons were omitted to be considered.5 OA No.1442/2022
Item No. 47 (C-4) C. It is a settled principle that "res ipsa loquitur" and thus, there is no rhyme and reason for the Respondent to not consider the applicant for promotion to the rank of Under Secretary.
D. The respondent has committed negligence as the respondent did not consider the applicant's name for the Promotion to the post of Under Secretary despite being well within the considered Common Select List-2012 (Sl. No. 122) and also being eligible otherwise.
E. The same APAR Dossier along with the APAR Dossiers of 3 other officers was already received in the respondent CS-I Division on 23.11.2020 before the DPC Date of 04.12.2020 and the respondent found the dossiers of these 3 officers and also promoted one of them namely Sh. Govind Kumar (at Annex II Of the promotion order at Sl. No. 3) but the respondent with a malafide intention did not promote the applicant citing non availability of APAR.
F. The Respondent has given a misleading statement before the Departmental Promotion Committee (DPC) dated. 04.12.2020 that "APAR NOT AVAILABLE" whereas the truth of the matter is that the APAR was made available already on 23.11.2020.
G. The Hon'ble Supreme Court in Union Of India Etc. Ete vs K.V. Jankiraman 1991 SCR (3) 790 case has held that:
"The normal rule of 'no work no pay is not applicable where the employee although he is willing to work is kept away by the authorities for no fault of his, it is for this reason that F.R.17(1) will also be inapplicable to such cases"
H. The Delhi High Court in Balwant Singh Bisht v. Union of India & Ors. (W.P. (C) No. 23332/2005 decided on 14.03.2008) wherein the Court has held as follows:
6OA No.1442/2022
Item No. 47 (C-4) "14. In those cases where concerned employees seniors as well as juniors are granted the benefit of promotion and the salary for the period in question, same should invariably be given to such an employee who is given belated promotion retrospectively as non-grant of arrears of pay and allowances of the higher post for the relevant period, in such circumstances, would amount hostile discrimination."
I. The similar observation was reiterated by the Hon'ble Delhi High Court in W.P.(C) 7423/2013 (Govt. of NCT of Delhi v. Rakesh Beniwal.
J. The respondent has failed to check that APAR Dossier of the applicant, required by the respondent department. i.e. DoPT for the applicant's promotion as Under Secretary, was already sent to the respondent by the applicant's previous department i.c. Ministry Of Power vide O.M. No. A-28013/5/2020-V&S Dated. 16.11.2020 w.r.t. the respondent DoPT O.M. No. 22/5/2017-CS- 1 (APAR) Dated 06.11.2020 duly intimating that this Officer (The Applicant) is presently posted in the Ministry Of Labour and Employment.
K. When the APAR dossier of 4 officials was sent by the Ministry of Power and receiving for the same is also available, but the APAR dossier of the applicant was not considered. Out of these 4, one Section Officer has been promoted to the post of Under Secretary in promotion order dated 21.12.2020. L. After the promotion order dated 21.12.2020, another order dated02.03.2021 was issued again ignoring the applicant's claim, whereas higher authorities of DoPT vide the applicant's representation dated 23.12.2020, 12.02.2021 and personal meeting with Secretary, JS, Director CS-I, were all made aware about the discrimination done with the applicant. M. There was sufficient time to review the applicant's case by review DPC before issuing another promotion order 7 OA No.1442/2022 Item No. 47 (C-4) dated 02.03.2021 but the Respondents have promoted the junior of the applicants but not promoted the applicant on flimsy grounds.
N. The DoPT had extended the promotion of ad-hoc Under Secretary promoted vide order dated 21.12.2020 in June2021 for one more year. The Respondent has given no reason for the said discriminatory act of theirs.
O. In an enquiry proceeding before National Commission for Backward Classes, notice department i.e. DOPT has also duly admitted this lapse & negligence. Applicant sought the minutes of National Commission for Backward Classes (NCBC)'s hearing through RTI from commission. The Commission intimated that DoPT has not send back signed minutes. The application and the reply of the RTI is annexed as ANNEXUREA-8.
P. As per records available with Ministry of Power in their dak register, the applicant's APAR dossier was delivered to CS-I Division, DOPT on 23.11.2020 well before meeting of DPC and issuing of promotion order.
Q. The applicant brought this to the notice of the Respondent on the very next day i.e. on 23.12.2020 through his 1st representation vide his Deptt OM No. A-42020/05/2017-Adm but instead of immediately calling for a Review DPC as per own DoPT Rules & Guidelines as "The proceedings of any DPC may be reviewed if the DPC has not taken all material facts into consideration or if the material facts have not been brought to the notice of the DPC or if there have been grave errors in the procedure followed by the DPC. Thus, it may be necessary to convene Review DPCs to rectify certain unintentional mistakes, inter alia where eligible persons were omitted to be considered"
but the respondent did not pay heed.8 OA No.1442/2022
Item No. 47 (C-4) R. The innocent applicant kept on requesting he Respondent through his subsequent representations dated 12.02.2021, 28.05.2021, & 13.08.2021 but to no avail.
S. It is highly likely that the DoPT has even kept the UPSC in complete dark about the said negligence and thus, the applicant has been deprived of his Fundamental and Legal rights.
T. Several of the juniors of the applicant are now holding higher rank than him which is a violation of the rights under Article 14 of the Constitution of India and the acts of the respondents are also in violation of DoPT promotion, APAR, DPC and Review DPC rules & guidelines.
U. As per DoPT Rules, if the officers placed junior to the officer concerned have been promoted, he should be promoted immediately and if there is no vacancy the junior most person officiating in the higher grade should be reverted to accommodate him.
V. The Respondents are treating the juniors of the applicant on one hand and the applicant on other hand on an equal footing and thus, the said act is illegal on part of Respondents.
W. The act of the Respondents is discriminatory and thus, illegal in nature and hence, the applicant is entitled to the reliefs are sought.
X. The objections and representations raised by the applicant with the Respondent have not been disposed of in a satisfactory manner.
Y. An executive action has to pass the test of reasonableness and equality enshrined under Articles 14 and 16 of the Constitution of India.9 OA No.1442/2022
Item No. 47 (C-4) Z. Article 14 and 16 of the Indian Constitution strikes at the root of arbitrariness. It bars discrimination and prohibits both discriminatory laws and administrative action. In the light of the facts of this case, the result is discriminatory in toto toward the Applicants and such order is hereby deemed to be violative of Article 14 of the Indian Constitution."
4. Per contra, the counsel of the respondent no. 1 - DoPT vehemently opposed the arguments of the counsel of the applicant and pressed para 11 of the minutes of the meeting held on 4th and 5th December, 2020 vide which following recommendations were made :-
"The Screening Committee was unable to assess 42 officers due to non-availability of their reckonable APARS. The reckonable period of assessment was 2014-15 to 2018-2019. With respect to such cases, the Committee had very categorically recommended that in cases of unavailability of ACRS/APARS or cases having No Report Certificates (NRCS) due to reasons other than training or study leave for any officer, for either one or two years within the reckonable period, the officer's ACRS/APARS up to two years prior to the reckonable period would be taken into consideration. Further, in cases where five years ACRS/APARs could not be available even after the officer's ACRS/APARs up to two years prior to the reckonable period were taken into consideration, the officer would not be considered for assessment.
With regard to the representations preferred by the applicant, counsel for respondents submitted that the same was considered however due to non-availability of his APARs he could not be assessed. He added that at a later stage they 10 OA No.1442/2022 Item No. 47 (C-4) came to know about forwarding of his APAR by Ministry of Power and subsequent to APAR status of the officer undergoing a change, his case along with others who's Dossiers were received at a later stage, were placed before the Screening Committee and despite its recommendations his promotion order could not be issued rather kept on hold in view of the ongoing litigation before the Hon'ble Apex Court due to Contempt Petition in D. N. Sahoo vs. UOI in the context of 'status quo' regarding 'reservation in promotion' and 'own merit' cases.
It is also stated in the reply that vide DoPT's order dated 30.06.2022, the petitioner has already been given regular promotion for the post of Under Secretary of CSS w.e.f.
01.07.2022 without prejudice. As per Rule 2 (iii) of CSS Rules 2009 his approved service would be counted from 01.07.2022.
The proposal for notional fixation of pay in respect of all CSS Officers whose select list year have been antedated is pending with Ministry of Finance. Moreover the regular promotions in all the grades of CSS were held up due to protracted litigations on the twin issues of 'reservation in promotion' and 'own merit' cases in Hon'ble Apex Court. However, pending outcome of the SLPs it was decided to carry out adhoc promotions in all grades of CSS in Nov - Dec 2020 in terms of the advice tendered by 11 OA No.1442/2022 Item No. 47 (C-4) the Ld. AG while adhering to the principles governing ad-hoc promotion in DoPT OM dated 30.03.1988.
5. The counsel of the respondent no. 3 - UPSC using his counter affidavit argued that UPSC has no role to play in this matter as the relief sought by the petitioner in this OA to give direction to the respondents to give him promotion from the date of his immediate juniors on ad hoc basis and his other contentions are not related to UPSC. The crux of the matter - convening meeting of DPC for preparing panel for effecting promotion on ad hoc basis falls under the domain of administrative Ministry - DoPT.
6. The counsel of the applicant in his rejoinder reiterated that as per the certified copy of Dak Register of Ministry of Power, the petitioner's APAR was delivered in DoPT on 23.11.2020 well before the DPC meeting; the vigilance clearance of the applicant was sent by Ministry of Labour and Employment on 25.11.2020. He relied on the following judgments to buttress his case :-
(i) Govt. of NCT of Delhi And Ors. vs. Rakesh Beniwal And Ors. in W.P (C) No. 7423/2013, C.M. No. 15903/2013 dated 4th August 2013;
(ii) CAT Madras Bench in n.b. s. Manian vs. Unoin of India & Ors. dated 14.03.2007;
(iii) Punjab & Haryana High Court in Shekhawat vs. State of Haryana in LPA No. 1018 of 2012 dated 02.11.2012;12 OA No.1442/2022
Item No. 47 (C-4)
(iv) Union of India Etc. Etc. vs. K. V. Jankiraman 1991 SCR (3) 790 and
(v) Balwant Singh Bisht vs. UOI & Ors. in W.P (C) No. 23332/2005 dated 14.03.2008.
7. Considered the rival submissions, examined the relevant documents on record and perused the concerned judgments. We have observed that the applicant suffered prejudice and discrimination when his case for promotion from Section Officer to Under Secretary was not considered in the DPC convened in UPSC on 04.12.2020 for lack of APARs. It is seen that while his batch mates and some juniors were promoted to the post of Under Secretary w.e.f. 21.12.2020; the applicant's case was placed before the Screening Committee held only on 06.04.2021 but despite the recommendations of the committee the promotion order could not be issued in light of the ongoing litigation in Hon'ble Apex Court due to contempt petition (D N Sahoo vs. UOI) in the context of 'status quo' order regarding 'reservation in promotion' and 'own merit' cases. The applicant was given regular promotion to the post of Under Secretary w.e.f. 01.07.2022 and as per Rule 2 (iii) of CSS Rules, 2009, his approved service would be counted from 01.07.2022. We have observed that as per the averment of the respondent no. 1- DoPT in their counter affidavit the proposal for notional fixation 13 OA No.1442/2022 Item No. 47 (C-4) of pay in respect of all CSS officers whose select list year have been antedated is pending with the Ministry of Finance.
8. In the light of the above, we are of the considered opinion that the ends of justice would be served, if this OA is remitted to respondent no. 1 - Secretary DoPT to vigorously follow up with the concerned authorities and instrumentalities of the State like Department of Expenditure, Ministry of Finance and UPSC to consider giving the applicant all notional benefits like fixation of pay and allowances and seniority of the post of Under Secretary w.e.f. 21.12.2020 (when his batchmates and juniors were promoted to the post of Under Secretary). This exercise should be completed within a period of three months from the date of receipt of certified copy of this order. However, there would be no payment of any arrears of pay on the principle of 'No work no pay'. The instant OA is disposed of in aforesaid terms. There shall be no order as to costs.
Pending M.A if any, also stands disposed of accordingly.
(Dr. Sumeet Jerath) (Harvinder Kaur Oberoi)
Member (A) Member (J)
/Mbt/