Calcutta High Court (Appellete Side)
Ajoy Kumar Acharya vs The Secretary (Jt. Secretary ... on 22 August, 2014
Author: Nishita Mhatre
Bench: Nishita Mhatre
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Justice Nishita Mhatre
And
The Hon'ble Justice Tapash Mookherjee
WPCT 237 of 2011
Ajoy Kumar Acharya
vs.
The Secretary (Jt. Secretary Administrative) Council of
Scientific & Industrial Research & Others
For the Petitioner : Mr. Nirbanesh Chatterjee
Mr. Anjan Banerjee
For the Respondents : Ms. Gita Mukherjee
Heard on : 23.07.2014
Judgment on : 22.08.2014
Nishita Mhatre, J.:
1. The petitioner has challenged the decision of the Central Administrative Tribunal, Calcutta Bench, in OA 221 of 2006 dated 11th March, 2011 in this petition.
2. The petitioner was appointed as a Junior Scientific Assistant in the Central Mining Research Institute (hereinafter referred to as 'CMRI') which is now known as the Central Institute of Mining and Fuel Research (hereinafter referred to as 'CIMFR'). Thereafter he was promoted to the post of Senior Scientific Assistant on 24th September, 1960. Later he was promoted to the posts of Scientist-A, Scientist-B, Scientist-C on 1st January, 1966, 1st January, 1971 and 1st January, 1976 respectively. He reached the maximum grade of the scale of pay on 1st January, 1983 and thereafter was stagnated for one year. According to the petitioner he became eligible for being assessed for promotion to the post of Scientist- E-1 in 1984. The Council of Scientific & Industrial Research, New Delhi, (hereinafter referred to as 'CSIR') which has overall administrative control over the CMRI framed rules governing the service conditions of the employees of the CSIR and these rules were made applicable to the employees of the CMRI. Under the Bye-Law 71(b), a person is eligible for promotion after completion of five years of service in a particular post. Therefore, according to the petitioner he was required to be assessed for promotion to the post of Scientist-E-1 in 1984.
3. A new scheme was introduced by the CSIR in January, 1984 for promoting persons working in the post of Scientist-C who had completed six years of service and had a post-graduate degree. The petitioner claims that he should have been promoted even under the new scheme for promotion as he had completed six years of service in October, 1982 and had a post-graduate degree.
4. The Assessment Committee, which met on 21st April, 1986, assessed the petitioner's eligibility for promotion and found that he was not suitable for promotion. The Committee disqualified him for three years with effect from 1984.
5. The petitioner was promoted to the post of Scientist-E-1 with effect from 1st January, 1986 by a committee which met on 10th November, 1987.
6. A new scheme known as the Merit and Normal Assessment Scheme (hereinafter referred to as 'MANAS') was framed for assessing eligible candidates for promotion. The petitioner expressed his option to be considered for promotion under the scheme in 1991 and was promoted from the post of Scientist-E-1 to Scientist-E-2 with effect from 1st January, 1991. Thereafter he was assessed for further promotion on 17th April, 1999 and was promoted to the grade of Scientist-F with effect from 1st January, 1996. The petitioner retired thereafter as Scientist-F on 28th February, 1997.
7. After retiring, the petitioner approached the respondents claiming that he should be deemed to be promoted to the post of Scientist-E-1 with effect from 1st January, 1984 and not from 1987. He based his claim on the judgment of the Supreme Court which confirmed the judgment of the Central Administrative Tribunal in the case of Rama Shankar Saxena v. Director General Counsel of Scientific & Industrial Research, New Delhi and Others in O.A. 43 of 1988 decided by the Central Administrative Tribunal, Circuit Bench at Lucknow. The Tribunal had directed in the aforesaid case that the applicant before it should be considered for promotion under the provisions of Bye-Law 71(b) and held that the applicant deserved to be granted relief. Accordingly the Tribunal directed the respondents to convene a meeting of the Review Selection Committee which was expected to consider the case of the applicant before the Tribunal in the light of the old Bye-Law, i.e., Bye-Law 71(b). It further directed that in case the employee was found eligible for promotion he should be given notional promotion with effect from the date others were promoted. This judgment has been confirmed by the Supreme Court according to the learned Advocates appearing for both the parties before us. It is also apparent from the pleadings and the material on record before us. Unfortunately neither the petitioner nor the respondents have been able to produce a copy of the order of the Supreme Court in this matter for our perusal.
8. The Government of India, therefore, informed the CSIR that it had decided that all cases of rejection of promotion under the Centralised System of Assessment should be reviewed in the light of the procedure which was in vogue prior to the introduction of the Centralised System of Assessment. Therefore, all such cases of persons whose promotions had been rejected were to be reviewed under Bye-Law 71(b).
9. The petitioner was directed to submit 12 copies of his work reports for the period from 1st January, 1976 to 31st December, 1983 so that his case could be considered further. This communication was sent to the petitioner on 11th November, 2005, eight years after he had retired. However, the petitioner was not inclined to produce the reports since his reports had been submitted earlier.
10. He, therefore, filed O.A. No. 221 of 2006 as according to him the CSIR had violated the orders of the Central Administrative Tribunal which had been confirmed by the Supreme Court. It appears that he filed O.A. 399 of 2005 wherein the Tribunal directed the respondents to take action in accordance with law to promote the petitioner. The respondents further insisted on the submission of the work reports. As the petitioner did not agree to produce the work reports he filed O.A. 221 of 2006 contending that the respondents had failed to comply with the directions issued by the Tribunal in O.A. 399 of 2005.
11. The Tribunal dismissed the application as the petitioner had refused to co-operate with the respondents by providing the work reports. Aggrieved by that order the petitioner has preferred the present writ petition.
12. Bye-Law 71(b) which governed the employees of CMRI and CSIR reads as follows:
71(b) Notwithstanding anything contained in these Bye-Laws:
(i) the cases of Senior Scientific Assistants and Senior Technical Assistants who complete five years of their service in these grades may be assessed for promotion to the next higher grade by a committee consisting of the Director General, Director and two experts for each Laboratory;
(ii) the merit of officers of the rank of a Junior scientific Officer, Junior Technical Officer and Senior Scientific Officer Grade-
II/Senior Technical Officer Grade-II engaged in Scientific work may be assessed for promotion to the next higher grade, after every five years of the appointment of the Officer concerned against that post. Such assessment will also be made after completing one year's service at the maximum of the scale of pay of his grade;
(iii) the merit of officer of the rank of Senior Scientific Officer Grade-I/Senior Technical Officer Grade-I engaged in scientific work may be assessed for promotion to the next higher grade after every five years of the appointment of the officer concerned against that post provided the said officer is at the maximum of the scale of pay of his grade for at least one year;
(iv) the assessment of the merit of officer arising under Clause (ii) & (iii) above shall be made by an expert committee appointed with the approval of the Vice-President, from amongst the Members of the Executive Council and shall include three outside experts. The committee may make recommendations for their promotion to the next higher grade for the approval of the competent authority;
(v) in the Central Secretariat of the Society, the assessment of Officers arising under clause
(i), (ii) and (iii) above shall be made by an expert committee constituted by the Vice-
President;
(vi) the pay of the officers in the higher grades shall be fixed according to rules; and
(vii) the promotion to the next higher grade will be by conversion of the post in the lower grade held by the officers.
13. The dispute in the present case is whether the petitioner is required to produce his work reports before the Assessment Committee. According to the petitioner, since he was assessed for the relevant years and was granted promotion only from 1986 to the post of Scientist-E-1, the work reports are with the respondents. Therefore, he is not duty bound to produce them at this stage. We were inclined at first to accept this contention of the petitioner. However, the learned Counsel for the respondents pointed out that records are not preserved by the respondents for more than three years. The learned Counsel, therefore, submitted that it is not possible to assess the petitioner's work unless he produces the work reports. An affidavit has been filed by the respondents to that effect. They have also indicated in this affidavit that research papers of the scientists, which are the intellectual property of the scientist, are not maintained with the institute for assessing the scientist and he or she is expected to submit a work report for the number of years for which the assessment has to be made. These work reports ultimately are destroyed after the stipulated period. Therefore, according to the respondents if the petitioner desires any relief regarding his promotion he would have to submit the work reports afresh.
14. The learned Counsel appearing for the petitioner submits that the respondents ought to have maintained his work reports when the Supreme Court had directed while confirming the judgment of Rama Shankar Saxena's case (supra) that all matter of promotion must be reopened and the candidates are required to be assessed in accordance with Bye-Law 71(b). He submitted that it was the duty of the respondents to maintain these documents.
15. This petition has been adjourned on several occasions only to ascertain whether the petitioner has the work reports for the relevant years and whether he is willing to produce them. On the day the argument concluded, i.e., on 23rd July, 2014 the learned Counsel for the petitioner agreed to produce the work reports. However, with a rider that they would be produced before the Review Committee and not the Assessment Committee. He submitted that an assessment was originally made in 1984 and 1985 when the petitioner was admittedly found unsuitable for promotion. He was promoted in 1986 to the post of Scientist-E-1 when he appeared before the Assessment Committee. Therefore the question of appearing before the Assessment Committee at this stage does not arise. The petitioner has to be re-assessed by a Review Committee, urged the learned Counsel.
16. In our opinion, the submission of the learned Counsel for the petitioner is well founded. The petitioner had in fact been assessed under the new scheme instead of Bye-Law 71(b). In Rama Shankar Saxena (supra) the Central Administrative Tribunal had directed the respondents to convene a Review Selection Committee in order to ascertain whether the applicant in that case was entitled to be promoted under Bye-Law 71(b). This order of the Tribunal, as we have already stated, has been confirmed by the Supreme Court.
17. In the present case, it is evident that the petitioner was not selected for the post in 1984 by applying the new scheme in this regard rather than Bye-Law 71(b) under the Centralised System of Assessment. Although work reports must have been submitted by the petitioner at that stage, the respondents were not duty bound to maintain these work reports after a stipulated period of time. Therefore, in order to ascertain whether the petitioner is entitled to promotion with effect from 1984 he will have to submit his work reports. His work reports must be submitted before the Review Selection Committee which shall decide the petitioner's case in accordance with Bye-Law 71(b).
18. Accordingly, the impugned order of the Tribunal is quashed. The petition is disposed of by directing the petitioner to submit his work reports to the respondents within six weeks from today which shall be placed before the Review Selection Committee.
19. The Review Selection Committee shall consider the entitlement of the petitioner to be promoted on the basis of Bye-Law 71(b) within eight weeks after the petitioner submits his work reports.
20. The decision of the Committee shall be conveyed to the petitioner immediately thereafter.
21. It is made clear that if the petitioner does not submit his work reports within the time stipulated above, he will not be entitled to any relief in this case.
22. Urgent certified photocopies of this judgment, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.
(Tapash Mookherjee, J.) (Nishita Mhatre, J.)