Central Administrative Tribunal - Delhi
Ms.Sujata Arora D/O Shri S.K.Anand vs Union Of India on 3 July, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH : NEW DELHI
OA No.2892/2012
with
OA No.2894/2012
Reserved on 19.02.2014
Pronounced on 03.07.2014
HONBLE SHRI SUDHIR KUMAR, MEMBER (A)
HONBLE SHRI A.K.BHARDWAJ, MEMBER (J)
OA No.2892/2012
1. Ms.Sujata Arora D/o Shri S.K.Anand,
R/o B-101, Vishrantika Apartments,
Plot 5A, Sector-3, Dwarka, New Delhi-110078.
Presently working as Director,
Ministry of Environment & Forests,
Paryavaran Bhawan, CGO Complex,
Lodhi Road, New Delhi.
2. Ms.Chhanda Chowdhury,
D/o Late Shri Birendra Chandra Sarkar,
R/o Y-23, Type IV Special,
HUDCO Place Andrews Ganj, New Delhi-110049.
Presently working as Director,
Ministry of Environment & Forests,
Paryavaran Bhawan, CGO Complex,
Lodhi Road, New Delhi.
3. Dr. MS Saroj, D/o Late Major T.R.Singh,
R/o B-5, MS Apartments,
Pandara Park, New Delhi.
Presently working as Director,
Ministry of Environment & Forests,
Paryavaran Bhawan, CGO Complex,
Lodhi Road, New Delhi.
4. Dr.Manoranjan Hota S/o Shri Trilochan Hota,
R/o S-52, HUDCO Place, Andrews Ganj,
New Delhi-110049.
Presently working as Director,
Ministry of Environment & Forests,
Paryavaran Bhawan, CGO Complex,
Lodhi Road, New Delhi.
5. Dr. (Ms.) Ranjini Warrier D/o Shri K.Rama Warrier,
R/o 103 West/77, Silver Oaks, DLF City Phase-1,
Gurgaon-122002, Haryana.
Presently working as Director,
Ministry of Environment & Forests,
Paryavaran Bhawan, CGO Complex,
Lodhi Road, New Delhi. Applicants.
(By Advocate: Shri Vishwender Verma)
Versus
1. Union of India
Through Ministry of Environment & Forests,
Paryavaran Bhawan, CGO Complex,
Lodhi Road, New Delhi.
2. The Secretary Govt. of India
Department of Personnel and Training,
North Block, New Delhi. Respondents.
(By Advocate: Shri R.N.Singh)
OA No.2894/2012
1. Vinod Kumar Jain S/o Late Shri S.P.Jain,
R/o S-62, Type-62, Type IV(S), HUDCO Place,
Ansal Plaza, Andraws Ganj
New Delhi-110 049.
Presently working as Scientist F
Ministry of New and Renewal Energy
B-14, CGO Complex, Lodhi Road,
New Delhi-110003.
2. Gaj Raj Singh S/o Late Shri Sukh Lal Singh,
R/o 134/2, Jagriti Vihar,
Meerut 250005, Uttar Pradesh
Presently working as Scientist F
Ministry of New and Renewal Energy
B-14, CGO Complex, Lodhi Road,
New Delhi-110003.
3. Sohail Akhtar S/o Shri Abdus Samad,
R/o Flat No.2060, Type-IV,
Delhi Admn.Flats, Gulabi Bagh,
New Delhi-110 007.
Presently working as Scientist F
Ministry of New and Renewal Energy
B-14, CGO Complex, Lodhi Road,
New Delhi-110003.
4. Bhuvnesh Kumar Bhatt S/o Shri Chandi Parsad Bhatt,
R/o W-23, Andraws Ganj
New Delhi-110 049.
Presently working as Scientist F
Ministry of New and Renewal Energy
B-14, CGO Complex, Lodhi Road,
New Delhi-110003.
5. H.R.Khan S/o Late Shri Alhaj B.R.Khan,
R/o M-10, Andraws Ganj Extension,
New Delhi-110 049.
Presently working as Scientist F
Ministry of New and Renewal Energy
B-14, CGO Complex, Lodhi Road,
New Delhi-110003.
6. Dilip Nigam S/o Shri S.K.Nagam,
R/o D II/11, Shahjahan Road,
New Delhi-110 011.
Presently working as Scientist F
Ministry of New and Renewal Energy
B-14, CGO Complex, Lodhi Road,
New Delhi-110003.
7. Mansa Ram Nouni S/o Shri U.D.Nouni,
R/o K-3, Andraws Ganj Extension,
New Delhi-110 049.
Presently working as Scientist F
Ministry of New and Renewal Energy
B-14, CGO Complex, Lodhi Road,
New Delhi-110003.
8. J.P.Singh S/o Late Shri P.S.Malhotra,
R/o Flat No.641, Neelkanth Apartments,
Sector-13, Rohini, New Delhi-110 085.
Presently working as Scientist F
Ministry of New and Renewal Energy
B-14, CGO Complex, Lodhi Road,
New Delhi-110003.
9. S.K.Singh S/o Shri Deo Mangal Singh,
R/o Q/13, Andraws Ganj Extension,
New Delhi-110 049.
Presently working as Scientist F
Ministry of New and Renewal Energy
B-14, CGO Complex, Lodhi Road,
New Delhi-110003.
10. Jugal Kishor S/o Shri Sobha Ram,
R/o House No.1298, Sector-9,
Vasundhara, Ghaziabad-201012.
Uttar Pradesh.
Presently working as Scientist F
Ministry of New and Renewal Energy
B-14, CGO Complex, Lodhi Road,
New Delhi-110003.
11. K.C.Vaghri S/o Shri F.C.Vadhri,
R/o F-101, Raghubir Nagar,
New Delhi-110 027.
Presently working as Scientist F
Ministry of New and Renewal Energy
B-14, CGO Complex, Lodhi Road,
New Delhi-110003. Applicants.
(By Advocate: Shri Vishwender Verma)
Versus
1. Union of India
Through Ministry of New and Renewal Energy
B-14, CGO Complex, Lodhi Road,
New Delhi-110003.
Through its Secretary.
2. The Secretary Govt. of India
Department of Personnel and Training,
North Block, New Delhi. Respondents.
(By Advocate: Shri Rajender Nischal)
ORDER
Per Mr.Sudhir Kumar, Member (A) These two OAs were heard together, and reserved for orders together, and therefore, they are being disposed of by a common order. However, for the purpose of discussion of the facts of the case, the facts in OA 2892/2013 would be taken up as the leading case.
2. The grievance of the five applicants of this OA stems from the Flexible Complementary Scheme (FCS, in short) for Scientists, which had been introduced earlier, and has now undergone a change with effect from 10.09.2010, based on the recommendations of the VIth Central Pay Commission (VIth CPC, in short). Parallel Schemes are in position for a separate merit based promotion in the DRDO, and the Departments of Atomic Energy and Space, for the Scientists working in those organizations. According to the Modified FCS, the assessment of those Scientists who are covered by the Modified FCS was supposed to be done from 01.01.2011 onwards. Though the Scheme clearly provides for specified residency periods of service for the Scientists before their being considered for upgradation under the Scheme, and such consideration has to be carried out on 1st January or from 1st July of every calendar year, due to the erroneous consideration/recommendations, the benefit of FCS was not granted to the applicants in time, as claimed for by them, which, according to them, has led to financial losses.
3. The applicants have sought shelter behind the Honble Apex Court judgment dated 02.05.2011 in C.C.No.6864/2011 in SLP (C) No.13133/2011, in Union of India and Another vs. S.K.Murti to claim that similar orders should be passed for FCS promotions to be made effective from the date of eligibility in respect of all similarly situated persons. Similar prayers have been made on behalf of Applicants No.1 to 5 also. It may only be noted here that the Applicants No.1 to 5 are working as Directors in the Ministry of Environment and Forests, and still they have claimed to be Scientists working in the field of R&D, and hence they have claimed that they are covered by the FCS.
4. In Para 4.11 of the OA, the applicants have reproduced a portion of the Circular introducing the Modified FCS, which states as follows:
That henceforth, the benefits of FCS shall be extended only in such Departments as are involved in creating new scientific knowledge or innovative engineering, technological or medical techniques or which are predominantly involved in professions research and development and/or application of scientific knowledge. The modified criteria for identifying departments as scientific and technical and parameters for determining scientific activities and services, scientists and engineers and scientific posts will be as in the Annexure II to this scheme.
5. They have further reproduced in Para 4.12 of the OA, Annexure A-3 of the Circular concerned, which gives one such definition of the criteria for identifying an organization as Scientific, but have conceded that the Administrative Ministry of such an Organization, the Scientists of which are demanding the extension of FCS in their case, shall have to satisfy itself that such institutions are scientific and technical institutions, and the officers are Scientists, holding scientific posts, and that they are actually involved in the scientific and technical activities. On receipt of such a request in this regard, the Department of Science & Technology is then required to set up a Committee, which would include eminent Scientists relevant to the discipline concerned, for examining the proposal referred by the Administrative Ministry concerned.
6. It has been further provided, and the applicants have also admitted that since it is not necessary that all the pay scales permitted under FCS should be applicable in all the scientific organizations, as the size of the organization may not justify introduction of the entire group of scales, the Committee constituted by the Department of Science & Technology would, while making its recommendations, take a specific view as to the number of pay scales that should be operated for the purpose of FCS in the organization concerned, such as the appropriate residency period, for ensuring an even pace of promotions.
7. It has further been provided in the Scheme, as admitted by the applicants also, that the recommendations of the Committee of the Department of Science & Technology will be then processed by the Administrative Ministry concerned, and shall be considered in consultation with the DoP&T, and the Department of Expenditure, to decide upon the progression of promotional pay-scales, which will be permissible for that organization under FCS, and thus prescribe the pay scales which shall be made applicable to that scientific organization. The applicants have produced a copy of the Modified FCS at Annexure A-2 (Page 90 of their OA), and portions of the original FCS notified on 09.11.1998 at Annexure A-3 (Page 110).
8. The applicants have pointed out through Para 4.14 and Annexure A-4 dated 12/16.08.1999 that in respect of the Principal Scientific Officers (PSOs, in short), who were in position as such on 09.11.1998, the date of introduction of original FCS, and were earlier considered for promotion to the higher grade directly, will continue to be considered for such promotions after completion of the prescribed residency period eligibility service, as prescribed in the rules as existed prior to the amendment, and it was clarified that the criteria of weightage marks at the time of first opportunity for promotion to the higher grades on the basis of assessment of the ACRs etc. may be reduced from 90% to 85%.
9. The Applicants have submitted that the FCS had further clarified on the point of relaxation in respect of PSO/Scientist D, clarifying that all those PSOs/Scientists D, who were in position as on 09.11.1998, were eligible under the extant rules for promotion, and that the relaxation allowed in respect of PSOs/Scientists D is not applicable to any other grades, and the reduction in the criteria of weightage marks from 90% to 85% for assessment on the first occasion would be applicable for promotions to all grades, and would not be restricted only to PSOs/Scientist D. In Para 4.16 of the OA, the applicants have cited the OM dated 26.04.2000 (produced at Annexure A-6), by which it was prescribed that for promotions from Scientist D to Scientist F, in respect of Ministry of Non-Conventional Energy Sources, those Scientists D, who were in position as on 09.11.1998, and who were eligible for promotion directly to the grade of Scientist F under the extant provisions of Recruitment Rules in vogue before introduction of the modified FCS, and who have been permitted as a special case to be eligible for promotion directly to the grade of Scientist F, would be eligible for consideration for promotion under FCS from the grade of Scientist D directly to Scientist F only on completion of the minimum residency requirement of eligibility service, as prescribed under the Recruitment Rules, as they existed before 09.11.1998, i.e., 5 years. It has also been clarified that 90% cut off criteria prescribed for promotion under FCS at the first opportunity stands modified as follows :-
Number of years of residency in the feeder grade of Scientist for promotion to higher level of Scientist is prescribed as against the minimum percentage to be achieved by the candidates for meeting the eligibility criteria, which is as follows:
Grade Number of years in the grade 3 4 5 6 7 8 Minimum percentage of marks for eligibility Scientist B to Scientist C 85% 80% 70% 65% 60% -
Scientist C to Scientist D - 85% 80% 75% 70% 60% Scientist D to Scientist E - 85% 80% 75% 70% 60% Scientist E to F - - 85% 80% 75% 70% Scientist F to Scientist G - - 85% 80% 75% 70%
10. Thereafter, in Paras 4.17 and 4.18 of their O.A., the applicants have relied upon the judgment of the Honble Apex Court dated 02.05.2011 in C.C.No.6864/2011 in SLP (C) No.13133/2011, in the case of Union of India and Another vs. S.K.Murti and the instructions dated 21.07.2011 and 28.02.2012 issued by the respondents thereafter, following the Apex Courts order. The applicants have further cited the judgment of Madhya Pradesh High Court in WP No.3073/1997 in the case of Dr.A.K.Mandal, Director General, ICFRE and Another, in which the Honble Madhya Pradesh High Court had held that the eligibility has to be considered in respect of the year when the cases are taken up for consideration for promotions subsequently. Similar pleadings have been made in the second O.A. No.2894/2012 also, with the applicant of that O.A. also taking similar grounds for seeking relief as prayed for.
11. After hearing these two cases together, we have given our anxious consideration to the facts and the legal issues involved. The details of the case of Dr. S.K.Murti (supra), whose case has been relied upon by the applicants, and with whom they have sought to be equated with, were recently discussed by the same Bench in its order dated 29.05.2014 in OA 1926/2013 in the case of A. Duraisami vs. Union of India & Another. Relevant portions of the said judgment and orders dated 29.05.2014 may be reproduced here beneficially:-
19. However, six other Scientists of the Ministry had later filed OA No.4098/2011, titled as Dr. Md. Asrarul Haque & Others vs. Union of India in the Principal Bench of this Tribunal, and had prayed that they may also be allowed ante-dated in situ promotions in each grade, from the due dates, as has been given to Dr.S.K.Murti & 10 Others, as per the judgment of the Honble High Court of Delhi in WP(C) No.14263/2004 dated 05.10.2010, which was upheld by the Honble Apex Court in SLP (C) No.6864/2011 dated 02.05.2011, and as per the orders of the Tribunal in that OA 4098/2011, their case has also already been processed as per the FCS guidelines, and antedating orders in respect of these scientists, wherever applicable, have also been issued vide order dated 26.03.2013.
20. It was further submitted that in view of these two judgments of Dr.S.K.Murti (supra) and Dr.Md.Asrarul Haque (supra), another OA 2892/2013 Dr.Sujata Arora & Others vs. Union of India & Others, had also been filed claiming extension of similar benefits of antedating of in situ promotions from the due dates. Also, on the same issue some more petitions had also been filed, i.e. OA No. 106/2013 in Mumbai Bench, OA No.498/2012 in Allahabad Bench, and OA No. 626/2012 in Hyderabad Bench of this Tribunal. These three OAs pending before the Mumbai Bench, Allahabad Bench and Hyderabad Bench have also since been transferred to the Principal Bench, New Delhi.
21 It was further submitted that keeping in view the already decided Court cases, and the judgment and order passed in OA No.4098/2011, the Competent Authority has since accorded blanket approval for grant of in situ promotions to the Scientists in the Ministry in each grade(s) from their due date(s)/eligibility date(s) from 01.01.1999 and onwards, and has accordingly issued an OM dated 24.05.2013, Annexure R-19. It was submitted that individual orders of in situ promotion under FCS flowing this blanket approval in respect of Scientists of the Ministry, including its attached and subordinate offices, would be issued after considering their due dates of eligibility in the different grades.
22. It was further submitted that though the Honble Apex Courts order in Dr.S.K.Murtis case covers only those 10 other Scientists of Botanical Survey of India, who were his co-applicants before this Tribunal in OA No.826/2003, but had not approached the Honble High Court, and whose matters were not under consideration before the Honble Supreme Court, but the Honble Supreme Court had in its orders directed to extend the benefit of promotion to those 10 other Scientists at par with Dr. S.K.Murti. It was further submitted they had not promoted Dr. S.K.Murti and 10 other Scientists from the due dates under FCS. Hence, the claim of the applicant for his entitlement to be considered for promotion from the date he became due for in situ promotion does not deserve any consideration, in view of the Honble Apex Courts judgment dated 02.05.2011 (applicable for only Dr.S.K.Murti & 10 others who were his co-applicants before this Tribunal), and would rather flow from the blanket orders now passed through OM dated 24.05.2013 Annexure A-19, which states as follows:
No.09/12/2012-P.III Government of India Ministry of Environment and Forests 9th Floor, Paryavaran Bhavan, CGO Complex, Lodi Road, New Delhi-110003.
Dated the 24th May, 2013 OFFICE MEMORANDUM Subject: Ante-dating of in-situ promotions under Flexible Complimenting Scheme (FCS) in respect of Scientists of this Ministry including its attached and subordinate offices from their due date of eligibility in the different grades of Scientific posts.
The undersigned is directed to refer to the subject mentioned above and to convey that the Competent Authority has accorded approval for grant of in-situ promotions in each grade(s) to the Scientists of the Ministry from their due date(s)/eligibility date(s) from 01.01.1999 onwards, keeping in view the Judgments delivered in various court cases filed by the Scientists of this Ministry.
2. The pay of the Scientists, who are due for ante-dating their in-situ promotion in each grade from their due date/eligibility date shall, however, be fixed on notional basis without any payment of arrears, where such promotions are belatedly granted to them. All such ante-dating of in-situ promotion in each grade shall be subject to clearance from vigilance angle.
3. However, those Scientists who could not be either cleared/screened by the Departmental Screening Committee or not recommended in the interview for appointment to the next higher grade in-situ promotion under FCS as on their due date(s)/eligibility date in each grade, shall not be entitled for ante-dating of their in-situ promotion from their date of eligibility/due date. Such Scientists shall be eligibility to be considered for in-situ promotion after a gap of one year as per rules. Further, if they are recommended for in-situ promotion to the immediate next higher grade, they shall be eligible for in-situ promotion from their actual date of eligibility after completion of one year gap period, as the case may be.
4. All the concerned authorities are accordingly, requested to take immediate action in the matter and ensure to verify from the respective Service Books/Records of the Scientists concerned their date(s) of eligibility/due date(s) in each grade before issuing ante-dating orders to effect their in-situ promotions under FCS in the relevant grade(s). They are also requested to send the proposals complete in all respects to this Ministry in respect of those Scientists, who become due/eligible, for their in-situ promotion under FCS due to ante-dating of their promotion in the previous grade(s), to assess their suitability by the Departmental Screening Committee (DSC) and Departmental Peer Review Committee (DPRC) for consideration of their in-situ promotion in the next grade(s) due under FCS. (Emphasis supplied)
23. It was pointed out that in its judgment and order dated 22.05.2012 in OA 4098/2012, this Tribunal had directed that the pay of the six Scientists, who were applicants of that OA, shall be notionally fixed from the date of antedating of their in situ promotions in each grade, wherever found eligible, and there shall be no arrears paid for such notional fixation of their pay from the antedate in each grade, except in respect of Ms.Madhumita Biswas, one of the six applicants, who had filed OA No.4098/2011.
24 to 26xxxxxx(Not reproduced here)
27. During the course of the arguments, learned counsel for the applicant had filed a compilation of judgments and OMs issued by the Ministry of Environment and Forests, which read as follows:
1) Dr.S.K.Murti & 10 Others vs. Union of India through Secretary, Ministry of Environment and Forests and Another, in OA 826/2003 decided on 03.12.2003.
2) Dr.S.K.Murti vs. Union of India & Others in CWP No.14263/2004 decided by the Honble Delhi High Court 05.10.2010.
3] Union of India and Another vs. S.K.Murti, decided by the Honble Apex Court on 02.05.2011 in SLP No.13133/2011.
4. Dr.V.S.Rao Chintala & Others vs. Union of India through Secretary to the Government of India, Ministry of Earth Sciences and Others passed in OA 2296/2009 decided on 04.08.2010.
5. Shri Vijay Kumar vs. Secretary, Department of Electronics Information Technology, Ministry of Communication Secretary to the Government of India, Ministry of Earth Sciences and Others passed in OA 1111/2012 decided on 27.09.2013.
6. A copy of Office Memorandum dated 20.12.2013 issued by the Ministry of Environment and Forests.
7. A copy of Office Memorandum dated 15.03.2013 issued by the Ministry of Environment and Forests.
8. A copy of Office Memorandum dated 26.03.2013 issued by the Ministry of Environment and Forests.
9. A copy of Order dated 26.03.2013 issued by the Ministry of Environment and Forests.
10. A copy of Notification dated 26.03.2013 issued by the Ministry of Environment and Forests.
11. A copy of Order dated 21.07.2011 issued by the Ministry of Environment and Forests.
28 to 31xxxxxx(Not reproduced here)
32. We have carefully gone through the orders passed by the Honble Apex Court dated 02.05.2011 in C.C.No.6864/2011 in SLP (C) No.13133/2011, in Union of India and Another vs. S.K.Murti, in which the Honble Apex Court had noted that the respondent Dr.S.K.Murti and 10 other Scientists of Botanical Survey of India had filed OA 826/2003 before this Tribunal, praying for directing the petitioners to promote them with effect from the dates of their eligibility under FCS, i.e. 01.01.1999. The Tribunal had dismissed the Original Application, and held that in view of the clarification given in the FCS OM dated 10.11.1998, the applicants were not entitled to the promotion with retrospective effect. Writ Petition No. 14263/2004 was filed before the Honble Delhi High Court against the order of the Tribunal by only Dr.S.K.Murti, and, as a result, the said Dr.S.K.Murti was the only respondent before the Honble Apex Court, when it considered the SLP (C) No. 6864/2011, CC No.13133/2011 and decided it on 02.05.2011. Therefore, while dismissing the said SLP, the Honble Apex Court passed the following orders:
This petition is directed against order dated 5.10.2010 passed by the Division Bench of the Delhi High Court whereby the writ petition filed by the respondent against the order passed by the Principal Bench of the Central Administrative Tribunal (for short, `the Tribunal') dismissing the original application filed by him for issue of a direction to the petitioners herein to promote him under the Flexible Complementing Scheme (FCS) with effect from the date of eligibility was allowed.
We have heard Smt. Indira Sawhney, learned counsel for the petitioners and Mr. Jitendra Mohan Sharma, learned counsel for the respondent, who has entered on caveat and carefully perused the record.
The respondent, who was working as Scientist Grade-D in the Botanical Survey of India became eligible for promotion under FCS with effect from 1.1.1999. However, on account of delayed convening of the Departmental Review Committee/Selection Committee, his promotion was delayed and by an order dated 20.10.2000, he was promoted with effect from 19.9.2000.
The respondent and 10 other Scientists of Botanical Survey of India filed Original Application No. 826/203 for directing the petitioners to promote them with effect from the date of eligibility, i.e. 1.1.1999. The Tribunal dismissed the original application and held that in view of the clarification given in O.M. Dated 10.11.1998, the applicants were not entitled to promotion with retrospective effect. The review petition filed by the respondent was dismissed by the Tribunal vide order dated 14.1.2004. However, Writ Petition (C) No.14263/2004 filed by the respondent was allowed by the Division Bench of the High Court and the petitioners were directed to give him all the benefits on the basis of deemed promotion with effect from 1.1.1999.
In our view, reasons assigned by the High Court for directing the petitioners to promote the respondent with effect from the date of acquiring the eligibility are legally correct and the impugned order does not suffer from any legal error warranting interference under Article 136 of the Constitution.
It is not in dispute that vacancies existed when the Departmental Review Committee considered the case of the respondent and other similarly situated persons for promotion. It is also not in dispute that in terms of paragraph 51.25 of the Vth Pay Commission Recommendations, the Departmental Review Committee/Assessment Board was required to meet every six months, i.e. in January and July and the promotions were to be made effective from the date of eligibility. Therefore, it is not possible to find any flaw in the direction given by the High Court.
The special leave petition is accordingly dismissed.
Since the time fixed by the High Court for compliance of the direction given by it has already expired, we direct the petitioners to do the needful within four weeks from today. Similar order shall be passed for all similarly situated persons despite the fact that they may not have approached the High Court questioning the order passed by the Tribunal. This direction is being given to avoid further litigation in the matter.
(Emphasis supplied)
33. It is clear from the above highlighted sentence in the order of the Honble Apex Court that the direction given was not in rem, but was only in personam, in respect of the 10 co-applicants of Dr. S.K. Murti, who had not approached the Honble High Court challenging the order passed by the Tribunal in OA No.826/2013, ordering that similar order may be passed in respect of all similarly situated persons, despite the fact that they may not have approached the High Court questioning the order passed by the Tribunal and could have related only to the other earlier portion of the Apex Courts order, in which it was noted that the respondent S.K.Murti had filed OA 826/2003, which OA had been dismissed by the Tribunal, and against which a Writ Petition No14263/2004 had been filed by Dr.S.K. Murti. Therefore, the directions of the Honble Apex Court in respect of similarly situated persons related in personam to only 10 co-applicants of Dr. S.K.Murti in the OA 826/2003, and cannot at all be meant to extend in rem to the Scientists of all the Scientific Ministries and Departments, of all over the country, who were not at all party in the case of Union of India vs. S.K.Murti (supra), as appears to have been viewed by the Coordinate Benches, while deciding the OA No. 1111/2012 and OA No. 2296/2009.
34. Therefore, while we beg to disagree with the conclusion arrived at by the Coordinate Benches that the Honble Apex Courts order in the case of Union of India vs. S.K.Murti (supra), was in rem, the benefit of which can be claimed by all the Scientists of all the Scientific Ministries and Departments of Government of India, who can all claim the same benefit, without consideration of their case on merits, and we also do not agree that the Honble Apex Courts order could automatically be applied to all the Scientists of Ministry of Environment & Forests, Govt. of India, since we are of the view that those directions were in personam, and were limited to only the 10 co-applicants of Dr S.K.Murti in OA 826/2003, who had not approached the Honble Delhi High Court, and were, therefore, not party before the Honble Apex Court, as party-respondents, but still, in view of the Honble Apex Courts orders, in K.Ajit Babu & Others vs. Union of India & Others, AIR 1997 SC 3277, and SI Roop Lal & Anr vs. Lt.Governor through Chief Secretary Delhi & Others (2000) 1 SCC 644, we are bound by these orders passed by the Coordinate Benches.
35. However, MA 2926/2011 had been filed by the co-applicants of Dr. S.K.Murti, who were applicants in the OA 826/2003, namely Dr. J.R.Sharma and Dr.H.J.Chowdhery, and their MA was disposed off through order dated 12.03.2014, passed by another Coordinate Bench, in which one of us [Member (A)] was a party to the judgment. During the hearing of that MA, the respondents had produced a copy of the OM dated 24.05.2013, in which also, a decision regarding the antedating of in situ promotions under FCS in respect of Scientists of Ministry of Environment of Forests, and including its attached offices, from the dates it was due, to the eligibility in the different grades of Scientists, had been taken. The said OM, which was produced in the order dated 12.03.2014 in M.A.No.2926/2011, has already been reproduced in para 22/above.
36. Therefore, since now the respondents themselves have taken a policy decision in regard to antedating of in situ promotions, which O.M. dated 24.05.2013 has not been noticed by the Coordinate Benches in their judgments in the OAs mentioned above, those orders are sub silentio, in so far as the rule position prevailing as on the date, even though both these judgments had been pronounced after the OM dated 24.05.2013 had been issued, without taking notice of that. Therefore, these Coordinate Benches judgments, which are sub silentio as to the correct prevailing rule position as on date of pronouncement of the orders are not binding upon us.
37. We, therefore, direct that the case of the present applicant Dr. A.Duraisamy should be considered by the respondents in terms of the latest OM dated 24.05.2013, and appropriate orders may be passed, making it clear that if he is found to be eligible for grant of ante-dated promotion under FCS, from the appropriate date in respect of Scientist G, the benefit of 3rd MACP to the grade of Scientist G already granted to him, shall be withdrawn or adjusted against any dues which may accrue to him, after such in situ FCS promotions having been antedated.
(Emphasis supplied)
12. Lengthy pleadings have been filed by the respondents for trying to explain the legal position in this regard. However, many such matters regarding FCS have already been decided by this Tribunal earlier, and it does not appear necessary to reproduce all the pleadings in the counter reply of the official respondents, and in the rejoinder of the applicants filed in these two OAs. One of the major issues concerned, which was argued was that the applicants are working in the Ministry, and are not the actual Scientists working in the Research Laboratories, and doing actual scientific work, so that they may be brought within the purview of the FCS. Learned counsel for the applicants had emphasized that the concept of purposive construction, as emanates from the principles of Interpretation of Statutes, should be made applicable to their cases. He had in that context cited the case of Bihar State Council of Ayurvedic and Unani Medicine vs. State of Bihar and Others reported at (2007) 12 SCC 728, in which the Honble Apex Court had in paras 51 and 52 held as follows :-
51. In our opinion, where the legislature has used words in an Act which if generally construed, must lead to palpable injustice and consequences revolting to the mind of any reasonable man, the court will always endeavour to place on such words a reasonable limitation, on the ground that the legislature could not have intended such consequence to ensue, unless the express language in the Act or binding authority prevents such limitation being interpolated into the Act. In construing an Act, a construction ought not be put that would work injustice, or even hardship or inconvenience, unless it is clear that such was the intention of the legislature. It is also settled that where the language of the legislature admits of two constructions and if construction in one way would lead to obvious injustice, the courts act upon the view that such a result could not have been intended, unless the intention had been manifested in express words. Out of the two interpretations, that language of the statute should be preferred to that interpretation which would frustrate it. It is a cardinal rule governing the interpretation of the statutes that when the language of the legislature admits of two constructions, the court should not adopt the construction which would lead to an absurdity or obvious injustice. It is equally well settled that within two constructions that alternative is to be chosen which would be consistent with the smooth working of the system which the statute purported to be regulating and that alternative is to be rejected which will introduce uncertainty, friction or confusion with the working of the system. [See Collector of Customs v. Digvijaysinhji Spinning & Weaving Mills Ltd. (1962) 1 SCR 896, at page 899 and Kesvananda Bharati v. State of Kerala.
52. The court must always lean to the interpretation which is a reasonable one, and discard the literal interpretation which does not fit in with the scheme of the Act under consideration.
13. We are not convinced about the applicability on all fours of the above ratio of the Honble Apex Court in these two cases, and we cannot hold that the applicants of these two cases, who are actually doing the administrative work in the Ministry, and are not at all involved in the Research Laboratories etc., can be allowed to claim the benefit of FCS. This aspect has to be examined by the Committee to be constituted by the Department of Science & Technology, as provided for in the FCS, as mentioned in paragraphs 5 to 7/above.
14. In the present two cases also, the OM dated 24.05.2010, read with the provisions of the modified FCS, would be fully applicable, and following the judgment & order dated 29.05.2014 passed in OA No.1923/2013, as reproduced in para 36 &37 of that order above, the same directions are issued in these two OAs also.
15. With such directions, these two OAs stand disposed off, but there shall be no order as to costs.
(A.K. Bhardwaj) (Sudhir Kumar)
Member (J) Member (A)
/kdr/