Central Administrative Tribunal - Delhi
Baldev Kumar S/O Late Sh. Jagdish ... vs The Chairman on 9 December, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.4344 of 2014 MA No.2811 of 2014 New Delhi, this the 9th Day of December, 2014 HONBLE SHRI G. GEORGE PARACKEN, MEMBER (J) HONBLE SHRI SHEKHAR AGARWAL, MEMBER (A) 1. Baldev Kumar s/o Late Sh. Jagdish Chander, working as Scientist- C in NTRO, aged 32 years resident of E-1, NTRO, Hostel, Ayanagar, New Delhi-110047. 2. Piyush Sharma s/o Sh NP Sharma, working as Scientist-C in NTRO, aged 34 years, resident of A-4, NTRO Hostel, Ayanagar, New Delhi-110047 3. Deepak s/o Sh Ran Singh Sindhy, working as Scientist-C in NTRO, aged 34 years, resident of B-4, NTRO Hostel, Ayanagar, New Delhi-110047 4. Leeladhar Meena s/o Sh RK Meena, working as Scientist-C in NTRO, aged 30 years, resident of C-5, NTRO Hostel, Ayanagar, New Delhi-110047 5. Archna Niranjan W/o SP Chaudhary, working as Scientist-C in NTRO, aged 35 years, resident of 8D, Shivalika Apartment, Sec-9, Dwarka, New Delhi. .Applicants (By Advocate : Shri M.K. Bhardwaj) versus 1. The Chairman, National Technical Research Organization (NTRO), Government of India, Block-3, Old JNU Campus, New Delhi-110067. 2. Controller of Administration(COA), National Technical Research Organisation (NTRO), Block-3, Old JNU Campus, New Delhi-110067. 3. Director (Establishment/Pers.) National Technical Research Organisation (NTRO), Block-3, Old JNU Campus, New Delhi-110067. 4. Deputy Director and Head of Office National Technical Research Organisation (NTRO), Block-3, Old JNU Campus, New Delhi-110067. 5. Director in charge of NTRO, Prime Ministers Office, South Block, New Delhi1-110011. .Respondents ORDER (ORAL) SHRI G. GEORGE PARACKEN, MEMBER (J) :
MA No.2811 of 2014 This MA has been filed by the applicants seeking joining together in a single Original Application. For the reasons stated therein, this MA is allowed.
OA No.4344 of 2014The applicants have filed this OA seeking the following reliefs and interim relief:-
Main reliefs:
(i) to declare the action of the respondents in not holding timely assessment boards for granting in-situ promotion to applicants from Scientist C to D w.e.f. 1st July, 2012 as illegal, arbitrary and unjustified.
(ii) to direct the respondents to grant in-situ promotion to applicants as Scientist D from due date as per their eligibility with all consequential benefits including arrears of pay and allowances.
(iii) Direct the respondents to initiate appropriate disciplinary action to hold & fix the responsibility and accountability of those concerned in NTRO for causing mental harassment to the scientists and adverse career impact because of undue and inordinate administrative delay in holding of assessment boards as per DoPT O.M. dated 10.09.2010 and subsequent O.M. of 2012.
(iv) to allow the OA with costs.
(v) pass any further orders as this Honble Tribunal may deem fit and proper in the facts and circumstances of the case. Interim Relief:
Pending final adjudication of the OA, it is humbly prayed that this Honble Tribunal, Principal Bench, New Delhi may be pleased to direct the respondents not to promote any junior Scientist C to Scientist D; till the disposal of the O.A. In fact, the respondents have already started the process of promotion of juniors of applicants by ignoring the applicants merely on the grounds that juniors had got promotion as Scientist C from due date on the directions of court of law.
2. According to the learned counsel for the applicants, this case is squarely covered by the earlier Order of this Tribunal in OA No.2142/2011 (P. Kulshrestha and others vs. National Technical Research Organization) and another connected OA decided on 15.3.2013. The relevant paras of the said Order read as under:-
2. Applicants are beneficiaries of the Flexible Complementing Scheme (FCS for short) issued by the Government of India vide Office Memorandum No.2/41/97-PIC dated 09.11.1998. According to the said Scheme, the process to award promotion to the next higher grade is required to be completed prior to the completion of three years and four years in the scales of pay of Rs.15,600-39100 + Grade Pay Rs.5400/- and Rs.15600-39100 + Grade Pay Rs.7600/-. Further, according to the said Memorandum, the assessment by the duly constituted Assessment Board under the Chairmanship of the concerned Department by the Government of India based on the minimum residency of period linked to the performance for in situ promotion to the higher grade of Scientists. Thereafter, the Assessment Board will make recommendations to the competent authority, for award of promotion to the grade of Scientist B to C in the scale of Rs.15,600-39100 + Grade Pay Rs.5400/-, Scientist C to D in the scale of Rs.15600-39100 + Grade Pay Rs.7600/- and Scientist D to E in the scale of Rs.37400-67000 + Grade Pay Rs.8700/- from the date of completion of residency periods. The due provisions exist for the effective date of promotion to the next higher grade either w.e.f. 1st January or Ist July, 2009 of every calendar year based on recommendation of the Assessment Board. However, the Respondents did not complete the said process prior to the due date of promotion of the Applicants. Thus, there occurred delay in awarding promotion to the Applicants from the due dates.
3. The Applicants have filed both these Original Applications seeking a direction to the respondents to ante-date the award of promotion to them as per their respective dates of eligibility and also to grant financial benefits from the due dates.
4. Respondents have filed their reply. They have opposed the reliefs sought by the Applicants and held that their promotions will be from the prospective dates and, therefore, no consequential benefits are permissible.
5. During the course of arguments, learned counsel for the Applicants has produced a copy of the order of the Supreme Court of India in Special Leave to Appeal (Civil) [CC 6864/2011] decided on 02.05.2011 - Union of India and Another Vs. S.K. Murti. The said SLP has arisen out of Writ Petition No.14263/2004 decided on 05.10.2010 which in turn has arisen out of OA No.826/2003 - Dr. S.K. Murthi and Others Vs. U.O.I. & Another decided on 03.12.2003.
6. This Tribunal disposed of said OA holding that Applicants were entitled for notional promotion from the date of being declared successful by the Departmental Review Committee/Screening Committee. However, the High Court, vide its order dated 05.10.2010, noted that both the parties have relied upon the Office Memorandum dated 17.07.2002 which reads as under:-
The recommendations made by the Fifth Central Pay Commission for modifying the Flexible Complementing Scheme (FCS) in operation in scientific and technological departments for in situ promotion of scientific technical personnel with a view to removing the shortcomings/inadequacies in the scheme had been examined some time back and this Department in O.M. No.2/41/97-PIC dated 9.11.1998 had issued detailed guidelines modifying the then existing FCS. From a number of references received in this Department, it appears that an element of confusion exists in some scientific departments on the date from which in situ promotions under FCS are to be given effect. Promotions are made effective from a prospective date after the competent authority has approved the same. This is the general principle followed in promotions and this principle is applicable in the case of in situ promotions under FCS as well.
2. As a matter of fact, no occasion requiring application of promotion with retrospective effect should arise in FCS cases, as it is provided in the rules for scientific posts that the Assessment Boards shall meet at least once a year to consider cases of in situ promotions. Rules notified for scientific posts also contain a provision for review of promotion by the Selection Committee/Assessment Board twice a year ? before 1st January and 1st July of every year- and the Selection Committee/Assessment Board is required to make its recommendation on promotions keeping in view these crucial dates of 1st January and 1st July. The competent authority, which has to take a final view based on these recommendations, shall ensure that no promotion is granted with retrospective effect.
7. The High Court allowing Writ Petition held that the aforesaid Memorandum requires that FCS in situ promotions to be effected each year and for which the circular mandates that the same should be made well in advance keeping in view the crucial dates being Ist January and Ist July with effect wherefrom the Flexible Complementing Scheme in situ promotions have to be effected. Accordingly, the High Court have held in favour of the petitioners and directed that the benefits granted to them should be reckoned with effect from 01.01.1999 instead of 19.09.2000. Arrears also to be paid within 12 weeks. The aforesaid judgment of the High Court was challenged by the Union of India in SLP (Civil) (supra) but the Apex Court upheld the orders of the High Court and held as under:-
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.
8. We have heard the learned counsel for the Applicants, S/Shri B.B. Bhatia, Navjot Kumar and Ajay Bhatia and the learned counsel for the Respondents, Shri Krishan Kumar.
9. Undisputedly, the case of the Applicants are squarely covered by the aforesaid orders of the Honble High Court in Writ Petition (C ) No.14263/2004 (supra) and the Apex Court in SLP (Civil) 13133/2011 (supra). We, therefore, allow these Original Applications. Consequently, we direct the Respondents to award the promotion to the Applicants from the due dates as per their respective eligibility and to antedate the award of promotion to them with all financial benefits. Respondents shall also pass appropriate orders within a period of 2 months from the date of receipt of a copy of this order. Within the said period, they shall also pay said arrears arising out of antedating of such dates of promotion. There shall be no order as to costs.
3. Learned counsel for the applicants has also submitted that the aforesaid Order of this Tribunal has been upheld by the Honble High Court of Delhi vide Order dated 23.1.2014 in Writ Petition (Civil) No.385 of 2014 with connected cases. The operative part of the said Order read as under:-
12. Before us, the petitioner has placed reliance on the very same Office Memorandum dated 17th July, 2002 which sets out the FCS Scheme.
13. We may note that so far as the present petitions are concerned, the formal order with regard to their promotions was passed by the petitioner on 29th October, 2010. The principles laid down by this court by its judgment dated 5th October, 2010 on the construction of the scheme dated 17th July, 2002 would squarely apply to the respondents. The challenge to the judgment was also rejected as back as on 2nd May, 2011.
14. Before us, Mr. Mishra, learned counsel for the petitioner has placed reliance on an Office Memorandum dated 21st September, 2012 which is really in the nature of a clarification of the earlier Office Memorandum dated 17th July, 2002. A reading of the same would show that the same only reiterates what is stipulated in the office memorandum of 2002 and emphasises the need for the petitioners to act with expedition and urgency so far as promotions of personnel is concerned. It is to be noted that this office memorandum is subsequent to the date from which the respondents are claiming rights. So far as the present consideration is concerned, we are bound by the pronouncement of the Supreme Court and the prior adjudication and construction of the manner in which the petitioner is required to discharge their duties. This has also been expounded in the judgment dated 5th October, 2010.
15. Our attention has been drawn to an order dated 17th November, 2008 which was annexed with the original application filed by the respondents before the Tribunal. By this order, the very relief which was claimed by the present respondents in its original applications stand granted to several other identically placed personnel of the petitioner organization. There is no explanation at all on the record for not granting the same benefit to the respondents as has been granted to other similarly placed persons by the petitioners.
16. Before us, it has been vehemently contended on behalf of the petitioner that the directions made by the Tribunal in the impugned judgment dated 15th March, 2012 tantamounts to granting pay to the respondents for work which they have not done. We fail to see how the principle of no work no pay at all applies to the instant case. It is an admitted position that the respondents have been granted in situ promotion which would mean that they were discharging the very functions which they were required to discharge upon their promotion. From the very expression in situ, it is also apparent that there is no change in either the place or the position in which they are working. Therefore, it cannot be contended that the respondents are being paid any amount for work they have not discharged.
17. Learned counsel for the petitioner has also placed reliance on a pronouncement of the Supreme Court dated 21st September, 2006 in Civil Appeal No.4222 of 2006 Union of India & Anr. Vs. Tarsen Lal & Ors. In this case, the Supreme Court was considering directions under the Indian Railways Establishment Manual. The respondents had actually not performed duties and responsibilities of the higher posts. In these circumstances, it was held that no arrears on account of an administrative error in making his promotion could be granted. It is not so in the p resent case.
18. Learned counsel for the respondents has also pointed out that this very judgement was distinguished by the Supreme Court in a latter pronouncement reported at 2007 (6) SCC 254 State of Kerala & Anr. Vs. E. Bhaskaran Pillai. After consideration of several judgments (including the judgment in Union of India Vs. Tarsem Lal (Supra)), the Supreme Court has held thus:- We have considered the decisions cited on behalf of both the sides. So far as the situation with regard to monetary benefits with retrospective promotion is concerned, that depends upon case to case. There are various facets which have to be considered. Sometimes in a case of departmental enquiry or in criminal case it depends on the authorities to grant full back wages or 50 per cent of back wages looking to the nature of delinquency involved in the matter or in criminal cases where the incumbent has been acquitted by giving benefit of doubt or full acquittal. Sometimes in the matter when the person is superseded and he has challenge the same before court or tribunal and he succeeds in that and direction is given for reconsideration of his case from the date persons junior to him were appointed, in that case the court may grant sometimes full benefits with retrospective effect and sometimes it may not. Particularly when the administration has wrongly denied his due then in that case he should be given full benefits including monetary benefit subject to there being any change in law or some other supervening factors. However, it is very difficult to set down any hard-and-fast rule. The principle no work no pay cannot be accepted as a rule of thumb. There are exceptions where courts have granted monetary benefits also.
19. It is also noteworthy that the impugned judgment was passed as back as on 15th March, 2013. The respondents have been constrained to move the Central Administrative Tribunal by prior proceedings under the Contempt of Courts Act against the petitioner. It is the filing of the contempt petition which has motivated the instant writ petitions.
20. For all the foregoing reasons, we find no merit in these petitions and applications which are hereby dismissed with costs which are quantified at Rs.2,000/- per respondent. The costs shall be paid to the respondents within a period of four weeks from today.
4. Learned counsel for the applicants has also brought to our notice that thereafter this Tribunal has considered the similar OA No.2655/2014 (Lt. Col. (Retd.) Rajvir Singh vs. The Chairman, National Technical Research Organization) and OA 2931/2014 (Lt. Col. (Retd.) A.K. Balyan vs. The Chairman, National Technical Research Organisation and others) were decided on 6.8.2014 and 26.8.2014 respectively.
5. In view of the above position, we dispose of this OA at the admission stage itself with direction to the respondents to examine the cases of the applicants in the light of the aforesaid Orders/judgements and if their cases are covered by the same, the relief sought by the applicants in this case shall be granted to them. They shall also pass appropriate orders under intimation to the applicants. The aforesaid directions shall be complied with within two months from the date of receipt of a certified copy of this Order. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN)
MEMBER (A) MEMBER (J)
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