Promotion denial based post facto rule amendment-request for just and fair review.

The amendment is not made retrospectively hence the denial on this ground may not be maintainable.

You may have to knock the doors of appropriate legal forum with strong pleadings and grounds in order to succeed in your efforts.

You may exhaust the remedies within the department appellate authority and then you can either approach CAT or high court with a writ petition.

Too long a story for consideration and obligation. 

File departmental appeal before filing a writ petition 

It is better to consult and engage a local prudent lawyer for appreciation of facts, professional advice and necessary proceedings 

At the time of implementation of the amended rule, you are under the punishment period, and hence the denial of promotion is correct.  If the orders of the ONG aggrieve you, first appeal to the ministry concerned and, according to the reply, you may approach CAT.

Take help of local lawyer for proper legal guidance as your case is complicated one. 

The new norm itself appears to be arbitrary. You may submit appeal/representation and, if need be, approach the High Court in a Writ Petition. To my knowledge, CAT has no jurisdiction.

T. Kalaiselvan, Advocate

Thank you, Sir. I understand the denial may not be sustainable since the amendment is not retrospective. I will prepare a strong representation and explore the departmental appellate route first. If needed, I will approach the CAT or High Court with relevant pleadings. Would you suggest collecting specific documents or RTI replies at this stage to strengthen my case?

May I also ask — as I belong to the Scheduled Caste community, can I seek intervention or support from the National Commission for Scheduled Castes (NCSC) in this matter?

I may be permitted to disagree with some learned experts above. (I shall be grateful if any expert could correct me)

The amendment has come into force before completion if penalty period (correct me if I understood Incorrect)

You had a claim for promotion with effect from 01.01.2025. (Correct me if I understood Incorrect)

This promotion could not be given to you because penalty period was operative. (Correct me if I understood Incorrect)

The amended rule came into force on 29.07.24 and the penalty period was yet to end on 30.09.2024. (Correct me if I understood Incorrect)

This rule could not be applied retrospectively but applied prospectively on issue of any vigilance clearance to be released on or after 29.07.204. 

Your claim for promotion was subsequent to revised rules and your vigilance clearance was governed by revised rules. (Correct me if I understood Incorrect)

Prima facie you have no case.

But possibility of case can be explored by expert lawyer on following considerations

·         You did not appeal against the penalty (Correct me if I understood Incorrect) (it is rare to find a penalty order without procedural defects)

·         You at the time of penalty had all the reasons to legitimately expect that the penalty is not going to have cascading effect till 01.01.205 wherein your promotion was due.

·         You r CDA Rules need to be seen as to what was the period of appeal and what is the provision of period in which revision/review fo the penalty can be moved.

I tend to agree with views of Ld Mr Kalaiselvan that mew norms appear to be arbitrary.  Such norms on vigilance clearance are not seen heard in CCS (CC&A) Rules. 

          The remedy therefore lies in:-

1.       Exploring possibility of challenge of penalty at this stage.

and/or

2.       Exploring possibility to challenge the policy.

Perusal of entire documents may be necessary for any lawyer to examine the possibility of either/both the options.

Regarding your suggestion of exploring possibility of Going to SC Commission.  You could succeed in that if you could prove that such interpretation was not applied on a general category employee.

Thank you Sudhir Kumar Sir., Advocate (Advocate)

The amendment came into force before completion of the penalty period. (You are correct Sir.)
You had a claim for promotion with effect from 01.01.2025. (You are correct Sir.)

This promotion could not be given to you because the penalty period was operative (You are correct Sir.)

(However, the penalty imposed was one increment reduction, which is now completed, and have been restored. Now I am not getting promoted — it seems I am being punished twice for the same offence. If the government amends the rule again in the future, I may never get promoted.)

The amended rule came into force on 29.07.2024, and the penalty period was yet to end on 30.09.2024. (You are correct Sir.)

This rule should not be applied retrospectively but is being applied prospectively for vigilance clearance issued on or after 29.07.2024. Your claim for promotion came after the revised rules, and your vigilance clearance was governed by the revised rules.

(However, this raises a question: When I accepted the penalty, there was no such rule stating I would be denied promotion due to vigilance clearance. Why would I have accepted the penalty if I knew this? I accepted the penalty because no such rule existed at that time and move on.)

Prima facie, you may not have a strong case.

However, the possibility of a case can be explored by an expert lawyer on the following grounds:

You did not appeal against the penalty. (You are correct Sir.) (It is rare to find a penalty order without procedural defects.)

The penalty was imposed in a POSH case. A female colleague who worked with me for 7 years filed a POSH case, and the only charge against me was “verbal abuse” in the show-cause notice. The ICC found me guilty based on the rule of probability. I submitted my representation to the Disciplinary Authority, i.e., Director (Exploration), who imposed a major penalty on 23.10.2023. but she agreed with the recommendation ICC and imposes major penalty.

I had the option to appeal to the CMD of ONGC, but my lawyer (who drafted the representation) advised that, although there were procedural defects, there would be no major financial loss and no immediate impact on promotion.

My promotion was due in 2025, by which time both my penalty and punishment would be over.
Therefore, I did not submit my appeal to the CMD. The submission period of 45 days has now expired.

At the time of the penalty, I had every reason to believe that the punishment would not affect my promotion due on 01.01.2025. There was no rule at that time stating that I would be denied promotion after completion of my penalty.

No one anticipated that the CDA Rules would be amended in line with the DPE OM dated 29.07.2024, especially Para 4.2, which states that vigilance clearance is normally not to be granted for five years after the currency of a major penalty.
Applying this new provision to already-concluded penalties is arbitrary and unfair.

As per CDA Rules:

PERIOD OF LIMITATION FOR APPEALS –
No appeal under these rules shall be entertained unless submitted within 45 days of receiving the penalty order.
However, the Appellate Authority may accept a delayed appeal if satisfied that there was sufficient cause.

Now the question arises: the POSH case that led to the penalty is time-barred (for appeal), but denial of promotion is a new and independent consequence of that penalty.

Grounds of My Grievance

1. The DPE OM dated 29.07.2024 was adopted by ONGC two months before my penalty period ended (30.09.2024). The penalty was imposed under the old rules, which did not contain any post-penalty bar on promotion.
   Applying the new policy retrospectively is against settled principles of service law.
2. Violation of Legitimate Expectation
   The D&A order dated 23.10.2023 clearly stated that future increments would not be affected.
   I had a legitimate expectation that upon completion of my penalty, I would be eligible for promotion.
3. Finality of Disciplinary Proceedings
   The penalty was specific and time-bound. Imposing additional consequences later (denial of promotion for 5 years) amounts to double jeopardy and undermines the finality of the order.
4. Violation of Natural Justice and Equity
   Blanket application of the amended rule—without considering the timing of the penalty—results in arbitrary treatment and affects employees whose cases were already concluded.

Legal and Policy Support

1. ONGC CDA Rules and DOPT Guidelines
   As per DOPT O.M. No. 22011/4/91-Estt.(A) dated 14.09.1992, employees must be considered for promotion by DPC after the penalty period ends, based on their overall service record.
   ONGC CDA Rules do not support indefinite denial of promotion once the penalty is over.
2. Examples
• If the DPE OM had been issued two months later, I would have been promoted.
• An employee penalized for three years but whose promotion is not due during that period will not be affected.
• Many employees received promotion (including from 01.01.2021) even with major/minor penalties because there was no such rule at that time.

All Guide on this

1. Explore Possibility of Challenging the Promotion Denial
   Almost all lawyers agree that since the penalty was imposed under old rules, the new rule cannot be applied retrospectively but your opinion is confusing me that what is right .
2. Representation to Ministry or CMD
   Should I  write a grievance letter to the Ministry of Finance (DPE) or CMD of ONGC before going to court.
3. Approach to SC Commission
   I asked this because,  CDA rule does not allow me to write a letter to CMD but SC commission can write a letter directlty.

The apeal period of penalty is over whi is genrally 46 days.

what the CDA Rules state abut revision/reviw?

The concept of double jeoparady doe snot appy to loss / delay of promotion etc because of penalty.

Denial of promotion based on an amendment made during the punishment period can still be considered retrospective and legally questionable.

Key Issue:

Does the timing of the punishment period (i.e., still ongoing when the rule was amended) make the application of the amended rule prospective or retrospective?

What the Lawyers Are Saying:

Since your punishment was still ongoing on 29.07.2024, the new CDA rule (denying vigilance clearance for 5 years) applies prospectively-and hence promotion denied on 01.01.2025 is not a retrospective application.

That’s their stance — but it's not entirely correct in my case. Here’s why:

Legal Counterpoints: Why It Is Retrospective

1. Penalty was Imposed Before Amendment

The operative act (penalty order) was passed on 23.10.2023.

The amended rule came into force on 29.07.2024.

Applying a new consequence (i.e., 5-year promotion bar) to a penalty imposed under earlier rules is clearly retrospective in effect — even if the punishment was ongoing.

Supreme Court in Govind Dattatray Kelkar v. Chief Controller of Imports and Exports, AIR 1967 SC 839: A rule cannot be applied to an event (penalty) that had already taken place unless it is made explicitly retrospective.

2. Law Applies to the Act, Not Its Ongoing Effect

The punishment duration (till 01.10.2024) is a consequence of the order.

What matters legally is when the order was passed, not how long it lasts.

You cannot attach new legal disabilities (like the 5-year bar) to an action completed under old law.

 3. Amended Rule Introduces a New Disability

The 5-year bar is a new disqualification that did not exist when the penalty was imposed. It’s a substantive change, not procedural.

State of Rajasthan vs. Dayalal, (2011) 2 SCC 429: A rule affecting eligibility or disqualification conditions is a substantive rule, not procedural. It cannot apply retrospectively unless expressly stated.

4. Natural Justice and Article 14 Violation

You were not informed of this 5-year bar when the penalty was imposed. Applying it later:

Alters your rights unfairly,

Adds a new punishment without hearing,

Violates natural justice and equality before law (Article 14, Constitution).

Conclusion:

Amendment is prospective because punishment was ongoing-Legally weak

Penalty was imposed before amendment, so applying new rule adds retrospective disqualification -Legally strong.

Argument

“The penalty was already crystallized on 23.10.2023, and the amended CDA rule cannot apply new consequences retroactively, even if the punishment lasted beyond the amendment date.”

You have got a thin case.

No concrete view can be expressed based onavailable facts without seeing papers.  Seek possibility of revision petition agaisn the penalty.