While expungement of adverse remarks in an APAR entitles an official to retrospective consideration for promotion, such a claim is enforceable only if a sanctioned, existing vacancy is available. If, during the period of delay, a post is legally abolished, the right to consideration for that specific post ceases.

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 (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 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 pro