Central Administrative Tribunal - Delhi
Dr. V.S. Rao Chintala vs Secretary To The Government Of India on 4 August, 2010
Central Administrative Tribunal
Principal Bench
OA No 2296/2009
New Delhi, this the 4th day of August, 2010
Honble Mr. Justice V.K. Bali, Chairman
Honble Dr. Ramesh Chandra Panda, Member (A)
1.Dr. V.S. Rao Chintala,
S/o Sri Venkateswara Rao,
D-1/A-08, HUDCO Place,
Andrews Ganj,
New Delhi-110 049.
2.Dr. V. Sampath,
S/o Shri K. Varadarajan, IAS (Retd.),
No.90, 6th Cross,
KRM Nagar,
Annamalai Nagar,
Tamil Nadu-608 002.
3.Shri T.V.P. Bhaskara Rao,
S/o T. Sanjeeva Rao,
A-109, Pragati Vihar Hostel,
CGO Complex,
Lodhi Road,
New Delhi-110 003.
4.Dr. K.J. Ramesh,
S/o K. Jayaram Chetty,
D-II/A-18,
South Moti Bagh,
New Delhi-110 021.
5.Dr. M. Sudhakar,
S/o M. Subbaramaiah,
FF1, Home Craft Building No.6,
Techno Park,
Chogam Road,
Porvarim,
Goa-403 521. Applicants
(By Advocates : Shri R.K. Kapoor with Shri. Ramraguvendra )
Versus
1. Secretary to the Government of India,
Ministry of Earth Sciences (MoES)
Mahasagar Bhavan, Block 12,
CGO Complex, Lodhi Road,
New Delhi-110003.
2. Secretary to the Government of India,
Department of Science & Technology (DST),
Technology Bhavan,
New Mehrauli Road,
New Delhi 110 016.
3. Secretary to the Government of India,
Department of Personnel and Training (DoPT),
North Block, New Delhi-110 001.
. Respondents.
(By Advocate : Shri R.N. Singh)
: O R D E R :
Dr. Ramesh Chandra Panda, Member (A) Five Applicants have filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 and prayed for the following relief(s) :-
(a) Allow the Original Application and Direct the Respondent Authorities to antedate the award of promotion to the Applicants as per their respective eligibilities listed at Para (v) above.
(b) Pass orders granting any other relief which this Honble Tribunal deems fit and proper in the facts and circumstances of the case;
(c) Award costs to the Applicants against the Respondents including the cost of litigation.
2. The Applicants in the present OA are seeking promotion to the post of Scientist-G under Flexible Complementing Scheme in the pay scale of Rs.18400-22400 after 5 years of residency period in the grade of Scientist-F having the pay scale of Rs.16400-20000,as per the Gazette Notification dated 09.11.1998 (Annexure A-1) and the OM dated 14.10.1999 (Annexure A-2). It is further averred that though the due provision exists under Flexible Complementing Scheme (FCS in short) for the effective date of promotion to the next higher grade, either with effect from 1st January or from 1st July of every calendar year, based on the recommendations of the Assessment Board, the Respondents in an arbitrary manner did not complete the said process prior to the due date of promotion, which caused delay in awarding the promotion to the Applicants by due date and the Applicants financially suffered and got career set back. They submitted representations to the respondents time and again but due relief had not been granted to the Applicants. On 10/11.05.2006, the Applicant No 2 was informed by a communication that his request for promotion to the Scientist-G with retrospective effect could not be acceded to (Annexure A-4), though, it is averred by the Applicants that there are a number of similar cases where the requisite grades/promotions have been granted retrospectively, which are annexed at Annexure A-5 and Annexure A-6 (Colly). It is the case of the Applicants that as per the extant Government instructions, the FCS being a Scheme for in situ promotion, and the Applicants being eligible after completion of five years of residency in Scientist-F level, they are entitled to be considered for promotion to the grade of Scientist-G. As they have been promoted belatedly to the post of Scientist-G, and not granted retrospective in situ promotion, the Respondents have violated the FCS guidelines. Thus, seeking justice and praying for the antedating of their promotion to Scientist-G, five Applicants have jointly approached this Tribunal in the current OA.
3. Learned Counsel for the Applicants Shri R. K. Kapoor assisted by Shri Ramaraguvendra contends that the FCS in situ promotion guidelines prescribe a detailed procedure to be followed. The Respondents did not follow the same as they did not consider the Applicants case as and when they were eligible, and approval of the competent authority was delayed, as a result, the bright Scientists like the Applicants lost a good part of their service even after completing required residency period of five years. He submits that their promotion was delayed between six months to six years. His contention was that as the process and procedure was not done as prescribed, the Applicants were deprived of their timely FCS promotion. He, therefore, urged that the Applicants promotion to the grade of Scientist-G should be granted retrospectively, with effect from the date, they were eligible. He submitted that there were instances of retrospective promotion under FCS. Shri Kapoor took us through the orders of Department of Ocean Development and Department of Earth Science available at Annexure-A5 and Annexure-A6 (colly) to demonstrate that Scientists who were promoted to the higher grade under FCS were granted retrospective effect giving promotion with effect from 1st January/July of the relevant year. He also placed his reliance on the judgment of this Tribunal in Dr. V. B. Kamble and Others Versus Union of India (OA No.2000/1996 decided on 9.3.2000) to submit that this Tribunal granted promotion retrospectively, in spite of, the competent authority not approving the same.
4. The learned Counsel for the Respondents Shri R.N. Singh raised preliminary objection of limitation as the cause of action for the Applicants arose many years back but they jointly filed this OA only on 31st July, 2009. He further contended that the Applicants were promoted to the post of Scientist-F during the period March 1996 to July 2001 and the residency period of five years was completed between March, 2001 to July, 2006. Thus, he submits that the OA is barred by limitation. Shri R. K. Kapoor vehemently objected and contended that non promotion of the Applicants deprived them not only the grade but also increments in the higher pay scale and their further promotion prospect was delayed.
5. We have considered the contentions of the parties on the issue of limitation and note that increment in the higher scale (Scientist-G) is an annual recurring event, which the Applicants have been suffering. Further, the problems they would face for next level of promotion from Scientist-G is also relevant. Thus, we find there is rationality in the arguments of Shri R. K. Kapoor that there is continuous and recurring cause of action insofar as increment and promotion are concerned. Hence, we reject the plea of limitation raised by Shri R. N. Singh.
6. Shri R. N. Singh submitted that in the cases of the Applicants, the FCS process was started in appropriate time and promotions were accorded only after the approval of the Appointments Committee of the Cabinet (ACC). As the process involves self appraisal, Screening, Interview and approval by the ACC, the process took little longer period, as a result of which, the Applicants could be promoted subsequently. He drew our attention to a case of Dr. K. J. Ramesh whose case was delayed because in the first instance, the ACC did not approve the proposal. He also drew our attention to the Paragraph 6 of the Counter Reply. Brief analysis on each of the Applicants case has been given in the said Paragraph. He contended that promotion cannot be claimed as a matter of right and more so, the promotion as per the settled legal position, cannot be extended retrospectively. In this regard, he placed his reliance on the judgment of Honble Delhi High Court in the case of Union of India and Others Versus Rajendra Roy [WP(C) No.2081/2005 decided on 12.01.2007]. He further drew our attention to the DOPT OM dated 17.07.2002 and also the Recruitment Rule issued in the year 2005 to say that the Respondents have issued statutory rules to ensure that no occasion would arise where the retrospective effect should be given in the case of in situ promotion under FCS Scheme. He also submitted that there was no discrimination or arbitrariness or unreasonable delay in awarding the in situ promotion under FCS to the Applicants for the posts of Scientist-G. Shri Singh also clarified that as per the proper processing by the competent authorities, the Applicants have been already promoted to the post of Scientist-G. Referring to the retrospective promotion granted to some of the Scientists in the Government of India, he submitted that those cases did not relate to the Department of the Applicants and, therefore, the Respondents were not duty bound to follow the same principles in case of the Applicants.
7. We have gone through the judgments relied upon by both the counsel. In case of Dr. V. B. Kamble case (supra), it is found that the facts of the case are different in the sense that the Applicants were in the recommended panel but were not promoted, but that is not the case in the present OA. Hence, Dr. V. B. Kamble (supra) is clearly distinguishable. We now consider the judgment of Rajendra Roy (supra) relied upon by the Counsel for the Respondents. The ratio laid down in the case by Honble High Court of Delhi is not applicable in the present OA, as the said case dealt with the normal promotions, not the promotion under the Flexible Complementing Scheme, which has a detailed set of separate guidelines.
8. Having heard the rival contentions, we perused the pleadings. The issue involved in this OA is in narrow compass- Whether the Respondents have followed the extant guidelines on in situ promotion of the Applicants under FCS?
9. The Flexible Complementing Scheme (FCS) has been in operation in the Government of India for promotion of the Scientists in different grade and the guidelines have been issued by the Department of Personnel & Training (DOPT) which are applicable for all the Departments and more so in the Science and Technology Department. These provide in situ promotion. With a view to remove short comings and inadequacies in the Scheme, a detailed Office Memorandum dated 9.11.1998 was issued by the DOPT giving the procedure to be adopted for promotion from Grade-A to Grade-G. From time to time the DOP&T has issued clarifications. Both the parties in support of their respective contentions relied on the Department of Personnel and Training (DOPT) OM No.AB-14017/32/2002-Estt.(RR) dated July 17, 2002. Counsel for the Applicants referred to the said OM to submit that the Respondents have violated the said DOPT OM as the Promotion Panels were not prepared before 1st January and 1st July. On the contrary, Counsel for the Respondents contended that the OA was meant to avoid retrospective promotions. Thus, the OM dated 17.7.2002, we find, is very relevant for adjudication of the issue of retrospective promotion under FCS. The said OM reads as follows :-
No.AB-14017/32/2002-Estt(RR) Government of India Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) OFFICE MEMORANDUM Subject : - Flexible Complementing Scheme for scientists in Scientific and Technological Departments-Date of effect of promotions.
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.
3. Hindi version will follow.
/sd/ (ALOK SAXENA) DEPUTY SECRETARY TO THE GOVERNMENT OF INDIA
10. As per the Government of India, Department of Ocean Development Notification dated 28th April, 2005 the relevant Rules were notified under Article 309 of the Constitution of India. Inter alia the Rule 4 (c) envisages 5 years of residency for in situ promotion to Scientist-G grade under FCS. It also prescribes the procedure to be followed for in situ promotion through (i) Screening Committee and (ii) Assessment Board. Rule 5 is relevant for the present OA. Salient and important aspects of the same are as follows :-
The ACR would be the basis for assessment on a 10 point scale for screening each case.
Number of years of residency in the grade of Scientist-F for promotion to Scientist-G is prescribed as against the minimum percentage to be achieved by the candidates for meeting the eligibility criteria, which is as follows :
Number of Years in the Minimum percentage for Grade of Scientist-F eligibility 1. 5 years 85% 2. 6 years 80% 3. 7 years 75% 4. 8 years 70%
Once the officers become eligible for consideration by the Screening Committee, they are called for interview and are assessed in 10 point scale by the Assessment Board. The eligibility for promotion would be based on the norms of percentage given in the above table.
The period of residency is relaxable up to one year in case of exceptionally meritorious Scientist.
Field experience of at least 5 years is essential for promotion under FCS to the Scientist-G Grade.
All candidates who have completed prescribed period of residency shall be reviewed for promotion by the Assessment Board twice a year i.e. before 1st January and 1st July.
Those candidates after consideration who do not qualify for promotion, are to be placed for consideration by the Screening Committee after one year.
The effective date of promotion of those found eligible shall be the date on which the panel is approved by the competent authority.
No retrospective promotion would be admissible.
These features are to be followed by the appropriate authority fully and wholly. Part of the guidelines cannot be adopted in a selective manner. If any feature is not followed, the whole FCS gets distorted. In the present OA, the Respondents have not brought out the year wise consideration and half yearly review for the years, the Applicants have completed prescribed residency period. This is an administrative process aberration of which should have been corrected.
11. The Respondents in their counter affidvavit have analysed case of each Applicant. We, therefore, intend to go through the same. Our perusal of the pleadings more specifically the Counter filed by the Respondents and analysis of each of the Applicants case reveal the following for guiding the Respondents to take action :-
Applicant No.1 (Dr. V. S. Rao Chintala) : He was promoted to Scientist-F on 1.3.1996 and availed 85 days of EL/HPL, for which his 5 years of residency period got stretched from 28.2.2001 to 13.5.2001. Thus, he was to be considered and reviewed before 1.7.2001 onwards subject to his eligibility otherwise. Though, his case was considered once or twice during 1.7.2001 and 9.8.2005 (the date of his promotion), the Respondents could not state whether his case was reviewed on each of 8 occasions i.e. before 1.7.2001, 1.1.2002, 1.7.2002, 1.1.2003, 1.7.2003, 1.1.2004, 1.7.2004 and 1.1.2005 and whether he was considered annually along with others for in situ promotion. If not, the Respondents have to do the same now.
Applicant No.2 (Dr. V. Sampath) : Taking into account his 50 days of EL/HPL he was eligible for the FCS promotion to Scientist-G on 27.2.2002. Though, he got 100% in the grading based on his ACRs, and the Assessment Board gave him 10 out of 10, he was not considered before 1.7.2002, 1.1.2003, 1.7.2003, 1.1.2004, 1.7.2004 and 1.1.2005 but was promoted to Scientist-G only on 9.8.2005. The Respondents have not stated why his case was not considered earlier though he had secured perfect 10. Thus, Respondents are to examine his case and take decision.
Applicant No.3 (Shri T. V. P. Bhaskara Rao) : Though he completed 5 years of residency in Scientist F level on 9.4.2002, he was promoted to Scientist-G grade w.e.f. 21.4.2006. It is noted that in one of the assessments he got 83% as against 5th year eligibility of 85% and 6th year eligibility of 80%. He could have been promoted w.e.f. 1.7.2003 but for putting his name in sealed cover as the Vigilance Clearance was not available. The CVO gave Vigilance Clearance on 5.8.2005. Instead of opening the sealed cover, the Applicant was considered later on and promoted only on 21.4.2006. This needs to be look into and decision taken by the competent authority.
Applicant No.4 (Dr. K. J. Ramesh) : Having been appointed as Scientist-F w.e.f. 1.7.1999, he completed 5 years of residency and became eligible to be considered for in situ promotion to the post of Scientist-G as on 30.06.2004 and the same was placed before the Assessment Board meeting held on 25.08.2004, which recommended his case to the next grade and the Minister for Science and Technology also accepted the said recommendation but the Appointment Committee of the Cabinet did not approve the in situ promotion of the Applicant No.4 vide their order dated 11.03.2005. No reason has been stated by the Respondents for exclusion of the Applicant. He was again considered for in situ promotion as on 1.7.2005, which was forwarded to the Appointment Committee of the Cabinet on 10.08.2005. Ultimately, the Appointment Committee of the Cabinet approved the promotion of the Applicant w.e.f. 5.10.2006. It is noted that though there is no provision under the Rule to refer the same to the higher level committee, HLPRC, the delay has taken place and prejudice has been caused to the Applicant. Further if the Assessment Board recommended the case of the Applicant for in situ promotion under FCS to Scientist-G w.e.f. 1.7.2004, it is not known why the Appointment Committee of the Cabinet did not approve the same. The reasons for such approval could not be placed before us for perusal. This case needs proper review by the Respondents.
Applicant No.5 (Dr. M. Sudhakar) : He was working in the post of Scientist-F w.e.f. 1.7.2001 and, as such, 5 years residency was completed on 30.06.2006. It is noted that though he was graded with 96% by the Screening Committee and 90% by the Assessment Board, he was not promoted but due to the processing delay he was promoted only on 7.8.2007. It is a fit case which the Respondents should review to ensure that the Applicant gets his promotion on the appropriate date. This case needs proper review by the Respondents.
12. We compile below the dates relevant for our analysis :-
___________________________________________________________________ Name of the Date of Date of Residency Applicant promotion to promotion to years in the Scientist-F Scientist-F Scientist-G
1. Dr. V. S. Rao 1.3.1996 9.8.2005 9 years 5 months 8 days Chintala
2. Dr. V. Sampath 8.1.1997 9.8.2005 8 years 7 months 1 day
3. Shri T. V. P. 10.4.1997 21.4.2006 9 years 11 days Bhaskara Rao
4. Dr. K. J. Ramesh 1.7.1999 5.10.2006 7 years 3 months 4 days
5. Dr. M. Sudhakar 1.7.2001 7.8.2007 6 years1 month 6 days ________________________________________________________________ The above table unambiguously reveals that all of them had longer residency period than 5 years in the post of Scientist-F. The extant instructions envisage that the Respondents are to review each case twice in a year for FCS promotions with effect from 1st January and 1st July. Though performance of the Applicants and associated matters to be considered twice a year for their FCS promotion, only few instances (for example Dr. K. J. Ramesh case) have been shown to demonstrate the ineligibility under the FCS. But, we are convinced, as from the time each of the Applicants completed the required five years of residency, the Respondents have not considered each of them twice in each year to find out whether each has been fit for FCS promotion. As per the DOPT OM dated 17.7.2002 (extracted supra) the Assessment Boards to consider the Applicants at least once a year for their in situ promotion. Further, it stipulates that in order to avoid any occasion for retrospective effect for promotion in FCS cases, the Rules for Scientific posts contain a provision for review of cases of non-promotion by the Screening Committee/Assessment Board twice a year i.e. before 1st January and 1st July every year. Had such a procedure been followed by the Respondents, the case of each Applicant would have been considered for number of times as indicated against each of them in the following Table.
__________________________________________________ Applicant Number and Name Number of times to have been considered after fulfillment of Residency period and actual promotion to Scientist-G _______________________________________________________________
1. Dr. V. S. Rao Chintala 8 (Before 1.7.2001, 1.1.2002, 1.7.2002, 1.1.2003, 1.7.2003, 1.1.2004, 1.7.2004, 1.1.2005)
2. Dr. V. Sampath 6 (Before 1.7.2002, 1.1.2003, 1.7.2003, 1.1.2004, 1.7.2004, 1.1.2005)
3. Shri T. V. P. Bhaskar Rao 7 (Before 1.7.2002, 1.1.2003, 1.7.2003, 1.1.2004, 1.7.2004, 1.1.2005, 1.7.2005)
4. Dr. K. J. Ramesh 4 (Before 1.7.2004, 1.1.2005, 1.7.2005 1.1.2006)
5. Dr. M. Sudhakar 2 (Before 1.7.2006, 1.1.2007) ________________________________________________________________
13. The learned Counsel for the Applicants argued that there had been discrimination as similarly placed Scientist, ante dating of promotion had been ordered by the Department of Ocean Development and Department of Earth Sciences. We refer to Annexures No.A-5 and A-6 (Colly). We compile below those promotion cases in a Table for easy assessment.
___________________________________________________________________ Sl. Department Number of Date of Promoted Reference No. Scientists Order with effect (Page in the Promoted from paper book)
1. Department of Ocean 1 17.5.2004 1.7.2003 Page 21 Development
2. Department of Ocean 2 17.6.2005 one from Page 22 Development 1.1.2003 another from 1.7.2003
3. Department of Ocean 5 6.6.2005 4 from Page 24 Development 1.1.2004 one from 1.7.2004
4. Department of Ocean 2 6.6.2005 1.1.2004 Page 25 Development
5. Department of Earth 2 22.9.2006 one from Page 28 Development 1.1.2006 another from 1.7.2006__________________ The above Table undisputedly provide the antedating of promotion. This aspect has not been controverted by the Respondents, and the same was rather glossed over during the hearing by the Counsel for Respondents. We, therefore, come to the considered conclusion that in the referred cases in the Table, admittedly, antedating their promotion was sanctioned. We also find that all these cases were covered under FCS in situ promotion Scheme and one of them got promotion from Scientist F to Scientist G. The Respondent Government is required to follow uniform principles and cannot be favourable for one group in one Department against others in other Departments. Thus, in our view, the Applicants are similarly placed and have been discriminated.
14. Having gone through the prayers of the Applicants and the pleadings, we find that all the appropriate features of the FCS have not been wholly followed by the Respondents so much so, yearly assessment and half yearly review were not considered in the earlier years assessment and have not taken place before the crucial dates stipulated in the statutory rule. Therefore, not following the statutory rules in totality has prejudiced the Applicants and they have been deprived of their right and legitimate promotion prescribed under the FCS. Though as per the statutory rules, Respondents are mandated to undertake the assessments and the review of each case before specified dates (1st January or 1st July), therefore, the delay that has been identified in getting the in situ promotion under the FCS for each of the Applicants has been unexplainably enormous. If there would have been delay of few days, one can understand but when delay has been for months and years, administrative process lethargy and tardiness is quoted as reasons for such delay. Thus, such delay cannot be countenanced in the eyes of law. Therefore, we find that the non responsiveness of the Respondents has been the major factor for such delay in granting to the Applicants in situ promotion to the grade of Scientist-G.
15. Considering the facts and circumstances of the case and statutory provisions available for the in situ promotion and our detailed analysis on the issues, we direct the Respondents to consider each of the Applicants case for in situ promotion under FCS to Scientist-G grade according to their fulfillment of the residency period. If they are found eligible, they should be granted in situ promotion to the grade of Scientist-G with effect from 1st January or 1st July of the respective year, they are found to be eligible and the consequential benefits would accrue to them. The Respondents are further directed to review the case of the Applicants through appropriate Committee/Board as per FCS and such an exercise should be completed within a period of three months from the date of receipt of a certified copy of this order.
16. The Original Application is, therefore, allowed in terms of our above directions to the Respondents. In view of the typical nature of this case, we direct the respective parties to bear their own costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali)
Member (A) Chairman
/pj