Naveen Kumar & Ors. vs Union Of India & Ors.

Per Harvinder Kaur Oberoi, Member (J):

The applicants are aggrieved by the impugned Establishment Order No. 72/2025 dated 10.08.2025 (read with Corrigendum dated 11.08.2025), passed by Joint Commissioner, Cadre Control Authority, Office of Principal Chief Commissioner of CGST Delhi Zone whereby the dates of promotion in respect of the applicants have been changed to 12.01.2024 in lieu of earlier dates of promotion i.e. 01.01.2021 in an unilaterally, illegally and in an arbitrary manner and without giving them any opportunity of being heard. It is pertinent to state that the petitioners were promoted to the post of' Superintendent' from the post of' Inspector' in Central Board of Indirect Taxes and Customs, Department of Revenue, Ministry of Finance, Govt. of India, vide E.O No. 04/2024 issued on 12.01.2024 and were given notional promotion w.e.f. 01.01.2021. However, due to ongoing litigation in OA No. 939/2023 and other matters, the said order was kept in abeyance and subsequently, a Review DPC was held and impugned EO dated 10.08.2025 was unilaterally issued promoting the applicants to the post of 'Superintendent' albeit w.e.f. 12.01.2024 instead of 1.1.2021, as was initially done. Further, even as per the impugned Corrigendum issued subsequently on 11.08.2025, the promotion of the applicants has been made as against panel year 2021. It is pertinent to note that no DPC meeting could be convened I held for the vacacncy years 2020 to 2023 in order to fill up the vacancies for the post of Superintendent by promotion despite there being vacancies and despite availability of eligible officers including the applicants, who fulfilled the eligibility 13 criteria including completion of the mandatory training, as prescribed under the applicable Recruitment Rules for promotion to the post of Superintendent. It is submitted that the promotions due on 01.01.2021 were delayed solely due to administrative reasons such as multiple pending litigations etc. i.e. factors which cannot be attributed to the applicants. Hence, inter-alia considering the aforesaid circumstances, the applicants were given notional promotion with effect from the dates as indicated above. There was nothing illegal in the order granting notional promotion to the applicants as it was solely on account of administrative delays and failure of the respondents to convene DPC as per law for the period from 2020-2023 that the promotion was not given to the applicants. The impugned notification is stated to be in purported compliance of order dated 09.07.2025 passed by this Hon'ble Tribunal in CP No. 879/2024 dated 09.07.2025, and order dated 02.05.2024 passed in OA No. 939 /2023 titled as Mukesh Kumar and others vs Union of India. It is, however, submitted that there are no such directions issued vide the aforesaid order to change the date of promotion of the applicants herein from 01.01.2021 to 12.01.2024. Further, the disputes raised therein and any adjudication in the said OA has no bearing on changing the date of promotion of the applicants. Hence, there was no reason for the respondents to have issued the impugned order under the garb of compliance of orders passed in aforesaid OA. It is further submitted that the impugned EO dated 10.08.2025 entails serious civil consequences for the applicants, whose position in seniority list for the post of Superintendent, 14 which is prepared at all-India seniority basis, has been significantly lowered and further, the same also adversely affects the monetary benefits, pay fixation, etc. of the applicants. Hence, it was mandatory for · the respondents to have afforded an opportunity ofbeing heard to the applicants before taking any such decision. The impugned order is outrightly without any legal basis. There was no reason or occasion to hold a Review DPC insofar as the applicants are concerned. The promotion of the applicants was long due and they were given promotion after a long wait of around 4 years as no DPC was conducted for the period from 2020- 2023. Hence, the present OA.

Learned counsel for the respondents submits that the Department could not convene DPCs for the years 2020 to 2023 on account of various litigations and interim orders passed by this Tribunal concerning the seniority list of Inspectors. It is submitted that the Recruitment Rules dated 05.08.2019 reduced the qualifying service for promotion from Inspector to Superintendent to two years, pursuant to which certain Inter-Commissionerate Transferees (ICTs) sought seniority over Direct Recruits of 2014. In OA No. 2955/2019, titled Amit Kumar & Others, the issue of seniority was adjudicated, and the seniority list dated 15.03.2018 was subsequently modified on 07.10.2022 in compliance with the order dated 09.04.2021 passed by the Hon’ble High Court. Thereafter, the seniority list dated 04.12.2023 was subjected to further challenge, and this Tribunal, vide orders dated 22.12.2023 in OA Nos. 4154/2023 and 4156/2023, restrained the Department from convening the DPC on the basis of the impugned seniority list.

Learned counsel further submits that the promotion order dated 12.01.2024, which granted the applicants notional promotion with effect from earlier years, was reviewed and corrected by the Department vide order dated 10.08.2025. The revised promotions were granted with prospective effect from 12.01.2024 against vacancies pertaining to the years 2020 to 2024, on the basis of the consolidated select list prepared in accordance with the final seniority list dated 03.07.2025, drawn up in compliance with the order dated 02.05.2024 passed by this Tribunal in OA No. 939/2023, Mukesh Kumar & Others. It is contended that the aforesaid order did not confer any direction for granting notional promotion to the applicants from the years 2020 and 2021 onwards and that the review DPC held on 10.08.2025 was a corrective measure undertaken by the Department to rectify the earlier order, which was stated to be inconsistent with the applicable rules and the DoPT Office Memorandum dated 10.04.1989.

Learned counsel contends that, in terms of paragraph 6.4.4 of the DoPT Office Memorandum dated 10.04.1989, promotions are to be made in the order of the consolidated select list and have only prospective effect, even where the vacancies pertain to earlier years. Reliance is also placed upon the decision of the Hon’ble Supreme Court in Union of India v. K.K. Vadera & Others to submit that the mere existence of a vacancy or the attainment of eligibility does not confer an enforceable right to retrospective promotion, unless the applicable rules or a specific judicial direction provide otherwise. It is further submitted that the review DPC was undertaken in accordance with the applicable rules and procedural guidelines, and that the applicants were not entitled to retrospective financial benefits for any period during which they had not assumed charge of the promotional post.

Learned counsel lastly submits that no junior to the applicants has been promoted over them in violation of their seniority and that the principles of natural justice have been duly observed. It is contended that the applicants have no vested right to claim retrospective promotion merely on account of administrative delay or the existence of vacancies in earlier years. Accordingly, the respondents maintain that the order dated 10.08.2025 was issued in accordance with the applicable rules and DoPT guidelines and that the claims raised by the applicants are devoid of merit and liable to be rejected.

We have heard the learned counsel for the parties and perused the pleadings available on record.

The controversy involved in the present case is substantially similar to the one considered by this Tribunal in OA No. 3615/2025, decided on 17.02.2026, wherein the validity of Establishment Order No. 72/2025 dated 10.08.2025, read with corrigendum dated 11.08.2025, was examined in the context of withdrawal of notional retrospective promotion granted to Inspectors of the Delhi CGST Zone. In the said matter, this Tribunal considered the rival submissions regarding the delay in convening DPCs, the applicability of the DoPT O.M. dated 10.04.1989, the consequences of withdrawal of the earlier benefit of notional promotion, and the requirement of compliance with the principles of natural justice.

It is not in dispute that DPCs for the vacancy years 2020 to 2023 could not be convened owing to pending litigations and judicial restraints concerning the seniority list of Inspectors. The applicants contend that they were eligible for promotion during the relevant period and that the delay was not attributable to them. The respondents, while justifying the impugned action on the basis of paragraph 6.4.4 of the DoPT O.M. dated 10.04.1989, do not dispute that the applicants were earlier granted notional promotion vide order dated 12.01.2024 and that the said benefit was subsequently withdrawn by the impugned order.

It is well settled that an employee does not acquire an indefeasible right to promotion merely on attaining eligibility or on the occurrence of a vacancy. At the same time, the question of retrospective notional promotion cannot be decided solely by reference to the date on which the employee actually assumed charge of the promotional post, without considering the circumstances leading to the delay in convening the DPC and the prejudice, if any, caused to the employee. The principles laid down in P.N. Premachandran v. State of Kerala, K. Madhavan v. Union of India, Union of India v. N.R. Banerjee and Union of India v. Vipinchandra Hiralal Shah underscore the importance of timely consideration for promotion and the preparation of year-wise panels in accordance with the applicable rules.

The respondents seek to justify the impugned order as a corrective measure undertaken in terms of the DoPT O.M. dated 10.04.1989. However, where an earlier order granting notional promotion is withdrawn or modified to the prejudice of the employees concerned, the consequences of such action and the circumstances in which the original benefit was granted must be duly considered. In the present case, the impugned order affects the applicants’ position in the all-India seniority list and may have consequential implications for their further promotion and other service benefits. The action, therefore, cannot be examined merely as a correction of an earlier administrative order without due regard to the principles of natural justice.

In this context, the decision of this Tribunal in OA No. 3615/2025 dated 17.02.2026 assumes significance. In the said case, the Tribunal held that the withdrawal of notional retrospective promotion through the very same Establishment Order No. 72/2025 dated 10.08.2025 was unsustainable in the facts and circumstances recorded therein. The Tribunal also took note of the protection granted by the Hon’ble High Court in WP(C) No. 1668/2024 vide order dated 15.02.2024 to the officers falling within the specified bracket of the Inspector seniority list and held that the benefit earlier granted could not be withdrawn to the prejudice of the protected officers without complying with the principles of natural justice.

We are of the considered view that the ratio of the aforesaid decision would apply to the present case if the applicants are similarly situated in all material respects, including their eligibility for the relevant vacancy years and their entitlement to the protection granted by the Hon’ble High Court. The respondents shall not be justified in withdrawing the benefit of notional promotion merely by relying upon the prospective effect of promotion under paragraph 6.4.4 of the DoPT O.M. dated 10.04.1989, without examining the applicants’ individual circumstances and the legal protection, if any, available to them.

Accordingly, upon verification from the relevant service records that the applicants fall within the category of officers protected by the order dated 15.02.2024 passed by the Hon’ble High Court in WP(C) No. 1668/2024 and are otherwise similarly situated to the applicants in OA No. 3615/2025, the present Original Application deserves to be allowed on the same lines as the aforesaid decision. Consequently, Establishment Order No. 72/2025 dated 10.08.2025, read with corrigendum dated 11.08.2025, insofar as it withdraws the notional promotion earlier granted to the applicants with effect from 01.01.2021 and alters their dates of promotion to 12.01.2024, shall stand set aside.

The respondents are accordingly directed to restore the benefit of notional promotion granted vide Establishment Order No. 04/2024 dated 12.01.2024, with effect from the respective dates applicable to the applicants, for the purpose of seniority and consequential service benefits, in accordance with the applicable rules and the decision in OA No. 3615/2025 dated 17.02.2026. The question of financial arrears, if any, shall be governed by the applicable rules relating to notional promotion and the principle of no work, no pay, unless otherwise specifically provided. The aforesaid exercise shall be completed within three months from the date of receipt of a copy of this order.

The Original Application is allowed in the above terms. There shall be no order as to costs.