Central Administrative Tribunal - Delhi
Rakesh Maheshwari vs Union Of India Through Secretary on 1 February, 2011
Central Administrative Tribunal Principal Bench OA No. 2957/2010 OA No. 2959/2010 OA No. 2960/2010 New Delhi, this the 1st day of February, 2011 Honble Mr. Justice V. K. Bali, Chairman Honble Mr.L.K. Joshi, Vice Chairman (A) OA No. 2957/2010 Rakesh Maheshwari S/o Sh. Rameshwar Dayal Maheshwari R/o CU-106, Uttari Pitampura, Delhi 110 034. Applicant (By Advocate: Mr. M.M. Sudan) Versus 1. Union of India through Secretary, Department of Personnel & Training (DoPT), Ministry of Personnel, Public Grievances & Pensions, New Delhi. 2. Secretary, Deptt. Of Information Technology (DIT), Ministry of Communications and IT Electronics Niketan, 6, CGO Complex, Lodi Road, New Delhi110 003. Respondents (By Advocate: Mr. R.N. Singh) OA No. 2959/2010 Dr. B.K. Murthy s/o late Sh. B. Suryanarayana R/o 18, Siddharatha Enclave, Near Ashram Chowk, New Delhi 110 014. Applicant (By Advocate: Mr. M.M. Sudan) Versus 1. Union of India through Secretary, Department of Personnel & Training (DoPT), Ministry of Personnel, Public Grievances & Pensions, New Delhi. 2. Secretary, Deptt. Of Information Technology (DIT), Ministry of Communications and IT Electronics Niketan, 6, CGO Complex, Lodi Road, New Delhi110 003. Respondents (By Advocate: Mr. R.N. Singh) OA No. 2960/2010 Arun Sachdeva s/o Sh. Tilak Raj Sachdeva R/o 176, Partap Nagar, Jail Road, New Delhi 110 064. Applicant (By Advocate: Mr. M.M. Sudan) Versus 1. Union of India through Secretary, Department of Personnel & Training (DoPT), Ministry of Personnel, Public Grievances & Pensions, New Delhi. 2. Secretary, Deptt. Of Information Technology (DIT), Ministry of Communications and IT Electronics Niketan, 6, CGO Complex, Lodi Road, New Delhi110 003. Respondents (By Advocate: Mr. R.N. Singh) ORDER (ORAL) Justice V.K. Bali, Chairman:
By this common order, we propose to dispose of three connected matters bearing OA Nos. 2957/2010, 2959/2010 and 2960/2010. The bare minimum facts that may, however, need a necessary mention have been extracted from OA No.2957/2010 in the matter of Rakesh Maheshwar V/s. Union of India & Ors.
2. Applicant joined Government service in the grade of Scientist B (called Scientist/Engineer SC at that time). In the year 1991, he was selected as Scientist C and in 1995 he was promoted as Scientist D under Flexible Complementing Scheme (hereinafter referred to as FCS) for promotion. He was promoted as Scientist E under the said Scheme in January, 1999 and further as Scientist F under the same very Scheme in the year 2004. The FCS for promotion of Group A, B & C Personnel of various Scientific and Technological Institutions and departments of the Central Government was notified on 09.11.1998. Ministry of Information & Technology also modified rules known as Scientific and Technical Group A (Gazetted) posts in Ministry of Information Technology (In-situ Promotion under Flexible Complementing Scheme) Rules, 1998 on 06.08.2011. On 21.11.2005, it was directed to constitute Departmental Peer Review Committee (hereinafter referred to as DPRC) for reviewing suitability of promotion to Grade of Scientist F/Scientist G in addition to the normal FCS process involving screening and selection committees. The constitution of DPRC was to be as under:-
(a) Secretary of the administrative Ministry concerned. Chairman
(b) Two Secretaries of other Scientific Ministries/Departments. Members
(c) Two Eminent Scientists specializing in the field of scientific activity. Members
(d) Secretary, Deptt. of Personnel & Training (DoP&T). Member After constitution of DPRC, promotion process under the FCS Scheme now involves the following steps:-
Screening of eligible candidates based on their Annual Confidential Reports (ACRs) after having completed the minimum residency period in a particular scale/grade. Evaluation criteria and percentage of score required to qualify is laid down in the FCS policy;
Candidates cleared by the Screening Committee are required to appear for a personal interview before a selection committee and again percentage of score required to qualify is laid down in the FCS policy;
Records of performance of candidates selected by the selection committee are again reviewed by a Departmental Peer Review Committee (DPRC) headed by the Secretary of the Department and such people from other departments and including a member from DoPT for recommending suitability of the selected candidates for the promotion;
Promotions of upto the level of Scientist F (Director), for those who are commended by the DPRC are effected with the approval of Minister In-charge being the appointing authority. The posts held by these officers are upgraded in In-situ to them; and For those who are to be promoted to the levels of Scientist G (Scale of Joint Secretary), the recommended cases are forwarded with the approval of Minister In-charge to DoPT for seeking approval of the Appointment Committee of Cabinet (ACC) (being the appointing authority for the posts at level of Joint Secretary).
3. On 16.10.2009, the second respondent stated that in pursuance of the Sixth Central Pay Commission, the FCS policy is under review and after the same is reviewed, Ministries/Departments will be required to amend the recruitment rules, and, therefore, till such time, the promotions of S&T officers shall be considered as per the existing guidelines contained in OM dated 09.11.1998. The second respondent forwarded the recommendations of the selection committee as approved by DPRC and the Minister-in-charge along with ACR dossiers of the applicant to first respondent on 17.05.2010 for obtaining approval of the Appointments Committee of Cabinet (hereinafter referred to as ACC).
4. When things were so, however, vide O.M. dated 06.07.2010, first respondent refused to place the papers before the ACC for approval and returned the same to the second respondent with a direction that the case may be examined and processed under the new FCS policy after its approval. Second respondent communicated the decision of first respondent to the applicant in response to the representation made by applicant on 22.07.2010. It is at that stage that this Original Application seeking to quash OM dated 06.10.2010 and issuance of direction to first respondent to obtain approval of ACC for promotion of the applicant from Scientist F to Scientist G has come to be filed.
5. The primary plea raised against the impugned O.M., referred to above, based on the judgment of Honble Supreme Court in the matter of Y.V. Rangaiah & Others V/s. J. Sreenivasa Rao, AIR 1983 SC 852, is that the changed rules or instructions governing promotion cannot be applied to the posts in existence for which the process under the existing rules or un-amended rules/instructions may have already started.
6. There has, however, been a significant development during the pendency of the Original Application. The respondents have now realized that the additional steps now introduced for promotion could not be made applicable to the existing vacancies. In additional affidavit filed on behalf of the respondents in paragraph 4.9, it has inter alia been pleaded that in view of the decision taken in the meeting held under the Chairmanship of Minister of State (Personnel) on 17.09.2010, proposals of all the Scientists, recommended for promotion [07 cases of 2008 (now 05 as two scientists have retired on superannuation, 05 cases of 2009, 01 case of 2007 rejected and reconsidered for 2009 and 05 cases as on 2010 were resubmitted to DoP&T vide O.M. dated 21.09.2010 for soliciting approval of the ACC. DoP&T vide communication dated 08.12.2010 has conveyed the approval of the ACC for appointment of five Scientists (who were considered as on 01.01.2009) to the post of Scientist Grade G in the pay scale of Rs.37400-67000 + GP Rs.10,000/- with effect from the date of assumption of charge of the post until further orders and the promotion of these five Scientists has been notified vide order dated 10.12.2010 and approval in respect of other Scientists recommended for promotion is still awaited. It has further been pleaded in paragraphs 5.2 to 5.8 that to discuss all the pending FCS proposals, a meeting has been taken by the Establishment Officer on 11.01.2011 with the senior officers of the concerned departments wherein it has been deiced that all the pending FCS proposals would be reviewed and submitted before the ACC for reconsideration, and action has accordingly been initiated to submit all the pending FCS proposals including those of the DIT before the ACC for reconsideration.
7. In the scenario that now exits, the only prayer of the counsel for the applicant is that since the matter is already delayed simply because of misunderstanding of the law applicable to the facts of present case because of the respondents, therefore, a time bound direction be issued to the respondents to place the matter before the ACC for its approval as regards promotion of the applicant from Scientist F to Scientist G. It is further contended by learned counsel for the applicants that since the delay is entirely attributable to the respondents as regards promotion of the applicants, respondents may also consider desirability of making promotion of the applicants from the due date i.e. 01.01.2010. We think there cannot be any exception to the prayer made by learned counsel for the applicants noted above. We thus direct the respondents to place the matter before the ACC for its approval as expeditiously as possible and definitely within a period of six weeks from today. The respondents may also consider desirability of giving promotion to the applicants from the due date as mentioned above on the plea raised by the applicants that delay has been caused at the end of the department only. Ordered accordingly.
8. In view of the above directions, all the three Original Applications stand disposed of with no order as to the costs. Copy of this order be kept in each of the files.
(L.K. Joshi) (V.K. Bali) Vice Chairman (A) Chairman /naresh/