Government Cannot Deny Ante-Dated Promotion for Its Own Delay: Delhi HC [Read Judgment]

New Delhi: The Delhi High Court has upheld a Central Administrative Tribunal order granting ante-dated in situ promotion to a retired Scientist in the Ministry of Environment, Forest and Climate Change under the Flexible Complementing Scheme (FCS), holding that the Ministry cannot rely on a bar against retrospective promotion when the delay in assessment is its own doing. The Court, however, clarified that promotion to the higher grade of Scientist D will be subject to his being found suitable on the FCS parameters, with only the interview dispensed with.

A Division Bench of Justice C. Hari Shankar and Justice Vinod Kumar was hearing a writ petition filed jointly by the Union of India through the Ministry of Environment, Forest and Climate Change (MOEFCC) and the Department of Personnel and Training (DOPT) against the Tribunal’s judgment dated 29.01.2024 in OA 2701/2015. The judgment was reserved on 06.07.2026 and pronounced on 15.10.2026.

The respondent, Om Prakash, was working as Scientist B in the MOEFCC and was granted in situ promotion as Scientist C under the FCS with effect from 02.07.2007. He superannuated as Scientist C on 30.06.2013. He approached the Tribunal claiming ante-dated promotion as Scientist C from 01.01.2006 and in situ promotion as Scientist D from 01.01.2010, relying on an earlier Tribunal judgment dated 05.03.2012 in Nakul Dev v. Union of India (OA 1861/2010), which had been upheld by the High Court. The Tribunal allowed his application, relying on an MOEFCC Office Memorandum dated 13.08.2013 that listed him among Scientists entitled to ante-dating, and directed amendment of the 2007 order and issuance of orders for promotion as Scientist D, with consequential benefits including arrears of pay.

The Union of India, through Mr. Balendu Shekhar, CGSC, submitted that the Tribunal had ruled contrary to Rule 8.4 of the 1987 Scientific Group A Posts Rules and Rule 12(15) of the 2015 Recruitment Rules, both of which bar retrospective in situ promotion, and the DOPT Office Memoranda dated 09.11.1998 and 17.07.2002. He argued that FCS promotion is strictly merit based, involving screening on Annual Confidential Reports, an interview, vigilance clearance and assessment by the Departmental Review Committee, and that the respondent was never assessed for promotion from Scientist C to D. He added that the 2013 Office Memorandum was only a provisional exercise, that the DOPT had on 27.11.2014 required prior approval of the Appointments Committee of the Cabinet, and that Union of India v. S.K. Murti was distinguishable because the scientists there had already been assessed. According to him, the Tribunal had converted the FCS into an automatic time-bound promotion scheme.

For the respondent, Mr. Sudarshan Rajan submitted that the Ministry could not take advantage of its own wrong in delaying assessments that were required twice a year, and that S.K. Murti held that the date of promotion under the FCS is the date of eligibility, not the date of assessment. He pointed out that the matter was covered by Nakul Dev, that ante-dated promotions had been granted to other similarly placed scientists, that the interview requirement had been waived in Nakul Dev for retired employees, and that Appointments Committee approval is needed only for promotion to Scientist G.

The Bench began by observing that, though the Union’s submissions were “persuasive and weighty”, identical contentions had been negatived in Nakul Dev, whose facts practically mirror the present case. In Nakul Dev the Tribunal had directed a review assessment on the basis of ACRs alone, without an interview, for officers who had retired, and the High Court had upheld the order because the Department had itself granted earlier promotions from the dates of eligibility. The Court also took note of S.K. Murti, where the Delhi High Court had held that nobody can take advantage of his own wrong and that FCS promotion is akin to a selection scale for which the date of eligibility is the relevant date, and the Supreme Court had dismissed the special leave petition, noting that the review committee was required to meet every six months and that promotions were to take effect from the date of eligibility.

The Union argued that S.K. Murti was distinguishable because the scientists there had undergone assessment. The Court held this was correct only for promotion to Scientist D, as the respondent had been assessed and promoted as Scientist C, and it therefore found the Tribunal’s direction for ante-dating that promotion to 01.01.2006 entirely covered by S.K. Murti and Nakul Dev.

The Court then dealt with the Tribunal’s observation in Nakul Dev that the decision could not be cited as a precedent. It expressed “serious doubts” whether any court other than the Supreme Court can enter such a caveat, and held that a court may at most say that it is deciding on the peculiar facts before it. Relying on the Supreme Court’s decision in NBCC (India) Ltd v. State of West Bengal, it noted that the distinction between decision-making and precedent-making is unique to the Supreme Court, whose decisions bind under Article 141. It added that if lower courts could also direct that their decisions not be treated as precedents, similarly placed litigants might receive different treatment. A Tribunal judgment, the Court said, cannot operate as a precedent for the High Court in any case, and the respondent was being granted the same relief as Nakul Dev and his co-applicant not because that decision was a precedent but because there was no reason to treat him differently.

On promotion to Scientist D, the Court agreed with the Union that S.K. Murti would not apply as the respondent was never assessed, and that assessment is a mandate of the FCS under the DOPT Office Memorandum of 09.11.1998. It read the Tribunal’s direction to issue orders on promotion to Scientist D as not directing automatic promotion without assessment. At the same time, the Court noted that the respondent had retired and could not now be interviewed, and held that it would be:

“wholly unjust, inequitable and unfair to deny the said benefit to the respondent, especially as the delay in consideration of the respondent for in situ promotion as Scientist D under the FCS is wholly attributable to the MOEFCC.”

Following the course adopted in Nakul Dev, the Court dispensed with the interview, noting that the respondent had himself been interviewed and found suitable for promotion as Scientist C only four years earlier. The Bench upheld the Tribunal’s judgment subject to the caveat that his in situ promotion as Scientist D with effect from 01.01.2010 would be subject to his being found suitable on the parameters in the DOPT Office Memorandum dated 09.11.1998, except for the interview. The writ petition was disposed of with no order as to costs.

Appearances:

For the Petitioners: Mr. Balendu Shekhar, CGSC, with Mr. Krishna Chaitanya and Mr. Divyansh Singh Dev, Advocates.

For the Respondent: Mr. Sudarshan Rajan, Mr. Hitain Bajaj and Ms. Ria Setiya, Advocates.

Case Title: Union of India & Anr. vs. Om Prakash, W.P.(C) 5071/2025, decided on 15.10.2026

[Read Judgment]