Supreme Court - Daily Orders
Union Of India vs Vinay Kumar on 25 August, 2021
Bench: Uday Umesh Lalit, Ajay Rastogi
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 6359/2016
UNION OF INDIA & ORS. …..Appellant(s)
VERSUS
VINAY KUMAR …..Respondent(s)
WITH
Civil Appeal No. 7234/2016
Civil Appeal No. 2575/2017
Special Leave Petition (C) No.29605/2018
O R D E R
1. In this group of matters, Civil Appeal No.6359 of 2016 challenging the judgment and order dated 30.07.2014 passed by the High Court1 in Writ Petition(C) No.2357 of 2014 is taken as the lead matter and the facts pertaining to said appeal are stated in brief for the purposes of dealing with the issues raised in this batch of cases.
2. The respondent-Vinay Kumar was appointed as Scientific Officer on 24th April, 1992 and was given requisite benefit under “Flexible Complementing Scheme (“the Scheme” for short) as Scientist ‘C’ with effect from 1st January, 1999. In terms of the Scheme, his case for being considered for Signature Not Verified Digitally signed by Indu Marwah Date: 2021.08.27 the next higher grade as Scientist ‘D’ ought to have been 18:03:57 IST Reason: taken up soon after completion of four years but it was done 1 The Division Bench of the High Court of Delhi at New Delhi. 2 around December, 2003.
3. The respondent therefore represented that in terms of the Scheme, he be given the scale of Scientist ‘D’ with effect from 1st January, 2003. His representation having been rejected, he approached the Central Administrative Tribunal (‘the Tribunal’, for short) by filing Original Application No.1476 of 2009. The Tribunal allowed his application relying upon the decision of the High Court in Writ Petition (C) No.14263 of 2004 [S.K. Murti vs. Union of India & Ors.].
4. The decision so rendered by the Tribunal was questioned by the appellant by filing Writ Petition (C) No.2357 of 2014 in the High Court, which relied upon the following observations made by the High Court in S.K. Murti:
“Suffice would it be to state that the memorandum requires Flexible Complementing Scheme in situ promotions to be W.P.(C) No. 2357/2014 Page 2 effected each year and for which the circular mandates that the assessments should be made well in advance keeping in view the crucial dates being 1st January and 1st July with effect wherefrom the Flexible Complementing Scheme in situ promotions have to be effected.
6. The last sentence of para 20 is relied upon by the respondents to urge that the office memorandum clearly states that no promotion should be granted with retrospective effect. To this the answer by the petitioner is that the preceding two sentences makes it very clear that the Assessment Boards have to be constituted well in advance keeping in view the fact that 1st January and 1st April of each year are crucial dates to effect promotions.
7. Now, nobody can take advantage of his own wrong. Nothing has been shown to us by the respondents to justify not constituting the 3 Assessment Board/Selection Committee in time.
8. That apart, instant case of promotion is not one where promotion has to be effected upon a vacancy arising. Subject to being found suitable the petitioner was entitled to be promoted in situ. The situation would be akin to granting a selection scale to a person and the date of eligibility would be the date wherefrom the benefit has to be accorded.
9. Under the circumstances, we hold in favour of the petitioner and direct that the benefit granted to the petitioner be reckoned with effect from 1.1.1999 instead of 19.9.2000. Arrears would be paid within 12 weeks from today but without any interest.” The aforesaid Writ Petition (C) No.14263 of 2004 was thus dismissed by the High Court.
5. At this stage, we may notice the following provisions of the Scheme framed vide Office Memorandum dated 09.11.1998 :-
“2. The recommendation of the Pay Commission to define “scientific administrators” and to exclude them from the benefit of in-situ promotions under Flexible Complementing Scheme and to bring them under the ambit of “Assured Career Progression Scheme” formulated by the Pay Commission has not been accepted. However, it has been decided that the Flexible Complementing Scheme should, as per its original objective, be made applicable only to scientists and technologists holding scientific posts in scientific and technology departments and who are engaged in scientific activities and services. It has also been decided that assessment norms for promotions under the Flexible Complementing Scheme should be rigorous with due emphasis on evaluation of scientific and technical knowledge so that only the scientists who have to their credit demonstrable achievement or higher level of technical merit are recommended for promotion under the Flexible Complementing Scheme. … 4
3. The recommendations of the Pay Commission that existing disparities in the operation of Flexible Complementing Scheme in various scientific and technical departments in the matter of designation of posts, number of pay scales and the residency period should be removed and there should be uniformity in this regard has been accepted. Accordingly, all the posts covered under the Flexible Complementing Scheme shall carry the following uniform scales of pay, designations and minimum residency period linked to performance:-
….. ….. …..
5. It has further been decided that in order to extend the benefit of in-situ promotions under the Flexible Complementing Scheme to other Scientific organizations that are demanding the extension of FCS in their case, the administrative Ministry of such institution shall satisfy itself that such institutions are scientific and technical institutions and the officers are scientists holding scientific posts and are involved in scientific and technical activities as defined in the Annexure-I to the Office Memorandum and make its recommendations to the Department of Science & Technology. On receipt of such a request the Department of Science & Technology shall set up a Committee, including the representatives of the Department of Personnel & Training and of the Department of Expenditure as well as eminent scientists relevant to the discipline, for examining the proposal referred by the administrative Ministry concerned. A final decision on the proposal of an administrative Ministry for extension of FCS to other scientific organizations shall be taken based on the recommendations of this Committee.
Criteria for identifying Institutions/Organizations as Scientific & Technical Institutions and definition of
Activities and Services, Scientists & Engineers and Scientific Posts.
….. ….. …..
(iii) The scientific culture is characterized by a few salient aspects, namely the persons involved are highly qualified and skilled technical personnel, involved in creative and innovative activity, they are willing to be judged on the 5 basis of merit and competence rather than on the basis seniority and a hierarchical structure;”
6. In S.K. Murti, the High Court was called upon to consider the effect of delay occasioned as a result of non-
constitution of the Assessment Board/ Committee in time. The High Court found that the concerned candidate having become eligible, the delay on part of Assessment Board/Committee could not deprive him of his entitlement and as such the benefit ought to be reckoned with effect from the date of his eligibility.
7. It must be noted that the decision of the Division Bench in S.K. Murti was challenged in this Court in SLP (C) No.6864 of 2011 which challenge was rejected with following observations:
“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.826/2003 for directing the petitions 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 14.01.2004. 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 6 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.”
8. When the instant appeal was admitted on 08.07.2016, this Court proceeded to direct that the operation of the impugned judgment would remain suspended during the pendency of the appeal. It was, however made clear that the officers promoted pursuant to the order under challenge would continue to function in the promoted category during the pendency of the appeal.
9. The fact situations in the accompanying matters are more or less identical.
10. Two subsequent developments must now be adverted to: -
(A) On 19.09.2016, an Office Memorandum was issued with the approval of the Hon’ble Minister for Electronics and Information Technology. The policy document appended to this 7 Office Memorandum set out the essential features as under:
“The Electronics Commission was constituted by way of a cabinet resolution in the year 1971 and the department served as its executive arm. Initially, appointment to Group ‘A’ S&T posts were made on contract basis for 5/6 years and a few appointments were made on deputation basis also. The Electronics Commission and the Prime Minister approved a Personnel Policy and Practice for Group ‘A’ S&T officers. This policy was given effect to w.e.f. 1.1.1982. The same policy, mutatis- mutandis, was extended to below Group ‘A’ level S&T officials.
2. The salient feature of this policy was that it enabled every scientist to progress at the rate determined by their merit rather than the constraints of availability of posts. This policy was modeled on the basis of practice prevalent in the Department of Space and Department of Atomic Energy. On the recommendation of the Vth CPC, the Government of India in the DOPT notified and FCS for Group ‘A’ S&T officers for seven departments, including this department. On the recommendation of the VIth CPC, a modified FCS was notified by DoPT. The modified FCS has been made applicable only to those possessing a minimum qualification of a degree in engineering or a master’s degree in natural science. As a result, a large number of S&T Officers who were recruited by the department and its institutions with qualifications other than those prescribed in the Modified FCS have been left outside the purview of this scheme. In view of this, a necessity has arisen in the department to draft its own policy which will take into consideration the special circumstances prevailing not only in the Department but also in its subordinate and attached offices as also in the autonomous organizations under the department.
3. The policy shall cover all the existing Group A S&T Officers who are holding a Group A S&T post.
The grade structure for which this policy will be applicable shall be as under: -
Sl. Pay band and grade pay Designation Minimum
No. residen
cy
period
8
(MRP)
1 PB-3, GP: Rs. 5400/- Scientist B 3 years
2 PB-3, GP: Rs. 6600/- Scientist C 4 years
3 PB-3, GP: Rs. 7600/- Scientist D 4 years
4 PB-4, GP: Rs. 8700/- Scientist E 5 years
5 PB-4, GP: Rs. 8900/- Scientist F 5 years
6 PB-4, GP: Rs. 10,000/- Scientist G
All those S&T officials who have rendered the minimum residency period as indicated above, shall be eligible for consideration for promotion to the next higher grade. The crucial date for consideration shall be as on the 1st of January and 1st of July every year. The process for assessment should begin by October and April every year and end by mid-December and mid-June so that all promotions are given effect to as on 1st January and 1st July respectively every year. If, for some reasons, there are administrative delays in concluding the assessment process, the promotions shall, however, be given effect from as on 1st January/ 1st July of the eligible year.
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9. The policy is to be made effective retrospectively w.e.f. 01.01.2011. Reviews already conducted since 2011 under the FCS/MFCS policies of DOPT would be treated as having been done under the new policy and past review cases will not be re-opened.” It was thus clearly laid down that the assessment must be undertaken as on 1st January and 1st July every year and if for some reason, there was any administrative delay, the promotions must be given effect from as on 1st January/1st July of the eligible year.
(B) Thereafter, another Office Memorandum was issued on 12.02.2019 which was to the following effect:
“Ministry of Electronics & Information and 9 Technology (MeitY) has examined the issues regarding granting of in-situ promotions of Group ‘A’ S&T officers of MeitY and its organizations from the date of their eligibilities under the extant policy dated 19.09.2016 vis-a-vis DoPT’s OM No. CS-14017/6/2017-Estt. (RR) dated 03.01.2018 regarding ante-dating of promotions of scientists on the directions of CAT/High Courts in consultation with DoPT. The matter has been deliberated at length and based on the comments received from DoPT and also keeping in view the fact that MeitY’s Policy was introduced in the year 2016 but made effective from 01.01.2011, delegating the powers to the Competent Authority to decide the date of promotions, this Ministry has taken the following decisions for implementations of promotions under MeitY’s Group ‘A’ S&T policy:-
i. With regard to promotion of Group ‘A’ S&T officers of MeitY, its Attached Offices and Statutory Bodies, for which the Appointing Authority is Hon’ble MEIT, promotions may be granted in respect of all the pending cases of batches prior to 01.07.2019/01.01.2020 (as the case may be), from the date of eligibility, in terms of ACC’s direction mentioned in Para 1(a) of MeitY’s OM dated 19.09.2016, so as to maintain uniformity.
ii. Provisions as per Para (I) with regard to promotions with effect from the date of eligibility will be made applicable suo-moto on the proposals already got approved/granted promotion from the date of approval of Competent Authority in MeitY, its Attached Offices and Statutory Bodies.
iii. With regard to the upcoming batches eligible as on 01.07.2019/01.01.2020 (as the case may be) and thereafter, all the organizations would be require to mandatorily complete the promotion exercise well in advance as laid down in the para 4 MeitY’s personnel policy so as to ensure that the promotions are effected from the date of eligibility. iv. In case of delay in completion of 10 the procedure for conducting the review promotion of future batches for any reason, the promotions shall be effected from the date of approval by the Competent Authority only.
2. All the organizations under MeitY are advised to ensure that the backlog review promotions are completed within the prescribed time and decisions of this Ministry are scrupulously followed while conducting the review promotion exercises of Group ‘A’ S&T officers under the MeitY’s Policy dated 19.09.2016. In order to avoid delays in promotion in future, all the organizations under MeitY are also advised to complete the review promotions process well in advance of the due date.
3. This issue with the approval of Hon’ble MEIT.” According to this office memorandum, the Policy dated 19.09.2016 was continued without any qualification. The only occasion where the promotions would be effected from the date of approval by the Competent Authority was dealt with in sub-clause-iv that is to say where review promotions were in issue.
11. Ms. Madhavi Divan, learned Additional Solicitor General for the appellant submitted that the decisions of the High Court were incorrect and the entitlement of the concerned candidates would be only after the date of assessment by the Assessment Board/Committee.
12. Mr. R. Venkataramani, learned Senior Advocate appearing for some of the respondents submitted that in terms of Policy Documents dated 19.9.2016 and 12.02.2019, all the 11 benefits were required to be and as a matter of fact had been made over or extended to the concerned respondents.
13. The decision presently under challenge was based on the earlier decision rendered by the High Court in S.K. Murti which was affirmed by this Court. The view taken by the High Court that the interest of the concerned Scientists could not be put to prejudice as a result of delay in constituting the Assessment Committee in time, was affirmed by this Court.
The subsequent office memoranda dated 19.9.2016 and 12.02.2019 carry and seek to implement the same principle.
14. In the circumstances, we see no reason to take a different view in the matter. Affirming the view taken by the High Court which is presently under challenge, we dismiss this Civil Appeal No.6359 of 2016 without any order as to costs.
C.A. Nos. 7234/2016, 2575/2017 & SLP(C) No. 29605/2018
15. These matters stand disposed of in terms of the decision rendered in Civil Appeal No.6359 of 2016.
I.A. No.101912 of 2021 in Civil Appeal No.2575 of 2017
16. After the hearing in Civil Appeal No.6359 of 2016 and connected matters was over, Mr. Ajay Pratap Sharma, learned Advocate brought to our notice I.A. No.101912 of 2021 filed 12 in Civil Appeal No.6359 of 2016 seeking intervention. It was submitted that a large number of persons who were otherwise not entitled to be promoted, were granted promotions.
17. The issue in Civil Appeals was pertaining to the date of entitlement and not whether as a matter of fact, somebody was entitled to be placed in the next grade. In case the applicant has any grievance against the promotions, he may exercise such options as are open to him in law.
18. The instant application has nothing to do with the controversy which has come up for consideration in the present Civil Appeal.
19. This application for intervention is, therefore, rejected.
………...……………………………J. (UDAY UMESH LALIT) ……………………………………...J. (AJAY RASTOGI) NEW DELHI AUGUST 25, 2021 13 ITEM NO.4 Court 2 (Video Conferencing) SECTION XIV-A S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Civil Appeal No(s). 6359/2016 UNION OF INDIA & ORS. Appellant(s) VERSUS VINAY KUMAR Respondent(s) WITH C.A. No. 7234/2016 (XIV-A) SLP(C) No. 9703/2020 (XIV) (FOR ADMISSION and I.R.) C.A. No. 2575/2017 (XIV-A) ( IA No. 55433/2021 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/ FACTS/ ANNEXURES) SLP(C) No. 29605/2018 (IV-B) (FOR ADMISSION and I.R. and IA No.152134/2018-CONDONATION OF DELAY IN FILING) Date : 25-08-2021 These appeals were called on for hearing today. CORAM :
HON'BLE MR. JUSTICE UDAY UMESH LALIT HON'BLE MR. JUSTICE AJAY RASTOGI For Appellant(s) Mr. Madhvi Divan, ASG Mr. Gurmeet Singh Makker, AOR Mr. Gopal Jha, Adv.
Mr. Bhuvan Mishra, Adv.
Mr. Vibhu Shankar Mishra, Adv.
Ms. Sakshi Kakkar, Adv.
Mr. Devashis Bharukha, Adv.
For Respondent(s) Mr. R Venkataramani, Sr. Adv.
Mr. Santosh Paul, Sr. Adv.
Mr. Vikrant Yadav, Adv.
Mr. Gaurav Dhingra, Adv.
Mr. M. C. Dhingra, AOR Mr. Syed Mehdi Imam, AOR Mrs. Shamama Anis, Adv Mohd. Parvez Dabas, 14 Tabrez Ahmed, Adv Uzmi Jameel Ahmed, Adv Tashriq Ahmed, Adv Mr. Pradeep Misra, AOR Mr. Daleep Dhyani, Adv Mr. Suraj Singh, Adv Mr. Manoj Kr Sharma, Adv Mr. Bhuwan Chandra, Adv Mr. R.K. Kapoor, Adv.
Mr. Rajat Kapoor, Adv.
Ms. Kheyali Singh, AOR UPON hearing the counsel the Court made the following O R D E R Civil Appeal No. 6359/2016 The appeal is dismissed in terms of the signed order.
Pending applications, if any, shall stand disposed of.
Civil Appeal No.7234/2016, 2575/2017 and Special Leave Petition (C) No.29605/2018 These matters stand disposed of in terms of the decision rendered in Civil Appeal No.6359 of 2016.
I.A. No.101912 of 2021 in Civil Appeal No.2575 of 2017 After the hearing in Civil Appeal No.6359 of 2016 and connected matters was over, Mr. Ajay Pratap Sharma, learned Advocate brought to our notice I.A. No.101912 of 2021 filed in Civil Appeal No.6359 of 2016 seeking intervention. It was submitted that a large number of persons who were otherwise not entitled to be promoted, were granted promotions.
The issue in Civil Appeals was pertaining to the date of entitlement and not whether as a matter of fact, somebody was entitled to be placed in the next grade. In case the applicant has any grievance against 15 the promotions, he may exercise such options as are open to him in law.
The instant application has nothing to do with the controversy which has come up for consideration in the present Civil Appeal.
This application for intervention is, therefore, rejected.
Pending applications, if any, shall stand disposed of.SLP(C) No. 9703/2020
Leave to appeal is granted.
Let this appeal be listed alongwith Civil Appeal No.2299 of 2010 before the appropriate Court in the month of September 2021.
(INDU MARWAH) (VIRENDER SINGH) COURT MASTER (SH) BRANCH OFFICER
(SIGNED ORDER IS PLACED ON THE FILE)