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The applicant in the instant OA filed under Section 19 of the Administrative Tribunals Act, 1985 is aggrieved by the act of the respondents in not promoting him to the post of Senior Translator on regular basis against the vacancies of 2008 and not placing him above one Shyam Kumar Singh appearing at serial no. 09 of promotion order dated 01.11.2010 (Annexure A-3).

2. The applicant has sought the following relief(s):-

(i) To declare the action of respondents in not promoting the applicant as Senior Translator on regular basis against the vacancy of 2008 as illegal and quash and set aside the impugned order dated 26.12.2012 with directions to the respondents to hold review DPC and consider the applicant for promotion to the post of Senior Translator from the date of juniors i.e. 2008 or against the vacancies of 2006-2008 by ignoring the below benchmark grading contained in the ACR for the period 2004-05 with all consequential benefits including arrears of pay.
(iv) To pass any further orders as this Honble Tribunal may deem fit and proper in the facts and circumstances of the case.
(v) To allow the OA with cost.

3. The case of the applicant is that he joined the respondent Ministry as Junior Translator on 12.04.1990 on the basis of being declared successful in the Senior/Junior Translators (CSOLS) Exam, 1988 conducted by Staff Selection Commission and was promoted as Senior Translator on ad hoc basis vide order dated 10.11.2006. Subsequently, the respondents regularized the promotion of all identically placed persons, initially promoted along with the applicant on ad hoc basis, as Senior Translator vide order dated 01.11.2010. Upon enquiry, the applicant learnt that vide communication dated 30.11.2010, he had been awarded Average grading in the ACR for the year 2004-05 on account of which he could not be given regular promotion. The below benchmark grading had been communicated to him vide the above order for his representation (Annexure A-4). The case of the applicant is that the Average grading, being below benchmark, was required to be communicated to him before holding DPC for regular promotion. Admittedly, the DPC was held in the year 2006 and thereafter in 2010 for giving promotion to the post of Senior Translator, whereas the Average grading was communicated to the applicant, as seen above, vide letter dated 30.11.2010. This was contrary to the law laid down by the Honble Supreme Court in the case of Abhijit Ghosh Dastidar versus Union of India & Others [2009 (16) SCC 146] wherein it has been held that where the grading is treated as a bar to promotion and remains un-communicated before holding of DPC for promotion, ACRs containing the said below benchmark grading are required to be ignored. Moreover, the applicant has assailed such grading on the ground that he had no direct link with the reviewing officer and that he had been rewarded Rs.900/- as honorarium for outstanding work during the period of ACR under consideration. The applicant further contends that even no advisory memo had been issued to him regarding his work and conduct which is contrary to the OM dated 05.06.1981, which would reflect mala fide intention of the respondents. The applicant has relied upon the decisions in the cases of State of UP versus Yamuna Shankar Mishra & Another [1997 (4) SCC 7]; Dev Dutt Vs. Union of India & Others [2008 (8) SCC 725]; and Union of India versus V.S. Arora & Others [WP(C) No.5042/2002 decided on 31.05.2012] stating that un-communicated below benchmark gradings are required to be ignored (page 15 of the paper book), hence the respondents action in not communicating the below benchmark gradings in ACR for the period under consideration would be bad in law.

5. The learned counsel for the respondents submitted that the case of the applicant for promotion w.e.f. 2008 was rejected by the review DPC while he has been given regular promotion against the vacancies for the year 2010, vide order dated 26.12.2012 along with number of other candidates. The respondents further submit that the claim of the applicant is that he should be placed just below one Shyam Kumar Singh whereas he has not made others as party respondents in the instant proceedings. This OA is, therefore, fit to be dismissed on ground of non-joinder of necessary parties alone. Further, the respondents submit that the post in question is a selection post while the order of the Honble High Court in the matter of Union of India & Anr. Vesus Amit Shankar & Others [WP(C) No.850/2000 decided on 14.07.2011] cited by the applicant relates to non-selection post where the DPC is only required to hold a person fit or unfit. The contention of the respondents that the post of Senior Translator is a selection post in terms of the Recruitment Rules, 2006 has been denied by the applicant in his rejoinder application filed by him. It has been stated that all that DPC was required to do was to hold that whether the applicant was fit or unfit. Once an individual is denied promotion on account of below benchmark grading, it becomes immaterial whether the method of promotion is by way of selection or non-selection. The suitability of an officer is always judged as per grading in the ACR. In case the post is selection post, the assumption is made on comparative basis which is not the fact here. Therefore, all such below benchmark gradings in the ACRs become non est and the ACR of the applicant for the period 2004-05 is required to be ignored.

17. We have already taken note of the prayer of the applicant whereby he has sought quashing of the impugned order dated 26.12.2012 with a direction to the respondents to hold a review DPC and consider him for promotion to the post of Senior Translator against the vacancies of 2006-2008 by ignoring the below benchmark gradings contained in the ACR for the period 2004-05 with all consequential benefits including the arrears of pay. The entire argument of the applicant is based upon the decision in Dev Dutt Vs. Union of India & Others (supra) and Abhijit Ghosh Dastidar versus Union of India (supra). The applicant has also placed reliance on the decisions of the Honble High Court of Delhi in Union of India & Anr. Versus Amit Shankar & Others (supra) and Union of India versus V.S. Arora (supra).