Central Administrative Tribunal - Delhi
R K Sharma vs M/O Communications on 16 May, 2016
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-4438/2013
Reserved on : 09.05.2016.
Pronounced on : 16.05.2016.
Hon'ble Mr. Shekhar Agarwal, Member (A)
Hon'ble Mr. Raj Vir Sharma, Member (J)
1. Sh. Rajiv Kumar Sharma,
Scientist-E,
S/o Sh. Kunwar Pal Sharma,
R/o M-8, Andrews Ganj Extension,
New Delhi-110049.
Posted at :
National Informatics Centre,
A-Block, CGO Complex,
Lodhi Road, New Delhi.
2. Sh. Surendra Nath Behera,
Scientist-E,
S/o Sh. Padan Behera,
R/o House of R.P. Singh,
MIG-95, Chanakya Puri,
Gaya, Bihar.
Posted at :
NIC District Unit,
Collectorate, Gaya-823001. .... Applicants
(through Sh. R.K. Kapoor, Advocate)
Versus
1. Union of India through the Secretary,
Department of Electronics and Information,
Technology (DeitY), Ministry of Communications
& Information Technology (MCIT), Government of India,
Electronics Niketan, 6, CGO Complex,
Lodhi Road, New Delhi.
2. The Director General, National Informatics Centre,
Department of Electronics and Information Technology,
Government of India, A-Block, CGO Complex,
Lodhi Road, New Delhi.
3. The Secretary, Ministry of Personnel,
Public Grievances & Pensions,
2 OA-4438/2013
(Department of Personnel & Training),
Government of India, New Delhi. .... Respondents
(through Sh. D.S. Mahendru, Advocate)
ORDER
Mr. Shekhar Agarwal, Member (A) This O.A. was earlier filed by the applicants seeking the following relief:-
"(a) quash and set aside the DPCs held for promotions from scientist E to scientist F in the year 2012 in the case of Applicant no.1 and in the years 2010 and 2012 in the case of Applicant no.2.
(b) declar that FCS policy vide MIT (Ministry of Information Technology) OM No. 1(1)/2000-Pers.III dated 6-8-2001 was unenforceable in consideration of PROMOTIONS OF THE Applicants.
(c) direct the respondent authorities to reconstitute the DPCs, as per the then applicable law in force i.e. the S and T policy. "The Personnel Policy and Practices for Group 'A' Scientific and Technical Officers/posts in the Department of Electronics/Electronics Commission" Dated 11-8-1981 etc., and after due consideration, grant the benefits to the applicants to which they were legally entitled to from the dates of their respective eligibility, with all other consequential benefits including monetary benefits/back wages etc.
(d) direct the holding of an inquiry against the officials who had been responsible for resorting to illegal process despite knowing that the FCS policy was not approved by the concerned Minister, and even then the process was continued and resources, money and energy were wasted and action should be taken against them.
(e) fix the responsibilities on the officials of NIC responsible for administrative delay & non-compliance of various clauses relating to constitution of DPCs, and action be taken against them.
(f) pass appropriate orders directing that the Applicants be granted benefits by ante-dating their respective promotions from Scientist-D to Scientist-E W.E.F. 01/01/2005 in case of applicant no.1, from 01/01/2004 in case of applicant no.2 i.e. their actual dates of eligibility, with all consequential benefits of pay fixation and payment of arrears, and LIKEWISE similar benefits for subsequent promotions to the post of Scientist-F.
(g) direct the respondents to apply the applicable and legal S & T Policy for all Group A promotions forthwith without waiting for the modified FCS policy which would be equally illegal as has been the FCS Policy itself.
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(h) grant any other relief which this Hon'ble tribunal may consider appropriate in favour of the applicants in the interest of Justice.
(i) to award costs in favour of the applicants."
2. However, when this case was being heard on 20.04.2015, learned counsel for the applicants, on instructions from the applicants who were present in the Court, expressed desire and was allowed to withdraw prayer clauses-b, c, d and g above. Thus, the O.A. was heard for prayer clauses-a, e, f and i only. The grievance of the applicants is that they have been denied promotion to the post of Scientist-F in the year 2012. Applicant No.2 was denied the same promotion in the year 2010 as well. According to them, vide O.M. dated 09.11.1998 of Flexible Complementing Scheme (FCS) was introduced by the Government for granting in-situ promotions to Scientists working in various scientific departments on completion of the prescribed length of service in each grade irrespective of the availability of posts. This Scheme was adopted by the respondents also. On 21.11.2005, DoP&T issued another O.M. by which two Committees, namely, a High Level Peer Review Committee and a Departmental Peer Review Committee were set up to screen cases for grant of promotions to the grades of Scientist-F and above.
3. While in the O.A. several grounds have been mentioned by the applicants to question denial of promotion to them, the only ground pressed before us by learned counsel for the applicants was that in violation of the O.M. dated 21.11.2005, the cases of the applicants for promotion to the post of Scientist-F have not been placed before the Departmental Peer Review Committee and have been rejected by Departmental Committee. Learned counsel argued that departmental committees were not competent to screen out the cases of those who were being considered for promotion to the post of Scientist-F. In 4 OA-4438/2013 terms of DoP&T Instructions dated 21.11.2005 the matter should have been placed before the Departmental Peer Review Committee for final decision in the matter and only their recommendation should have been considered final.
4. In their reply, the respondents have stated that after issue of O.M. dated 21.11.2005, Director General of NIC had written to DoP&T on 03.04.2006 as follows:-
"In this connection, I would like to bring to your kind notice that in accordance with the stipulations contained in DoP&T OM of 9 November 1998, cases of Scientists/Technologists at the level of Scientist 'F' and 'G' in NIC who are eligible for consideration for in-situ promotion under the FCS, are first screened on the basis of gradings in the ACRs by a duly constituted Screening Committee and those screened in are assessed by a Review Committee constituted by the Hon'ble Minister of Communications & Information Technology. As per DoP&T instructions vide Communication No. 24/2/2005-EO(SM.II), proposals requiring approval of ACC for promotion under FCS are required to be submitted to the ACC through the High Level Peer Review Committee. However, for assessment of Scientists 'E' and 'F' for existing procedure for promotion to Scientist 'F' and 'G' respectively under the FCS, it is presumed that the existing procedure for screening and assessment as hitherto followed shall continue to be applicable and that the cases recommended by the Assessment/Review Committees shall be reviewed by the Departmental Peer Review Committee before seeking approval of the Appointing Authority or ACC as the case may be."
4.1 In response, DoP&T wrote back on 05.05.2006 as follows:-
"Kindly refer to your D.O. letter No. 19(7)/2005-P&E dated the 3rd April, 2006 to Secretary(P) seeking clarifications on promotions under the Flexible Complementing Scheme in the National Informatics Centre.
2. Whether the existing system of screening and assessment in FCS promotions shall continue in the context of setting up of the Departmental Peer Review Committee (DPRC) or the DPRC should replace the Assessment/Selection Committees in position is one of the points considered in consultation with the Cabinet Secretariat. As things stand now, the existing system of screening and assessment, shall continue to be applicable for promotions upto Scientist G. However, recommendations for promotions to Scientist F and G grades need to be reviewed by the DPRC. I may also add that all cases requiring approval of the ACC need not be screened first by the High Level Peer Review Committee; only such cases as are referred to it by the Cabinet Secretariat or by approval of the competent authority need to follow this route."
5 OA-4438/2013 4.2 On the basis of above documents, the respondents have denied that under the orders of DoP&T, it was necessary to place all the cases before the Departmental Peer Review Committee. Their contention was that Departmental Peer Review Committee was to further screen only those cases, which were recommended by the Departmental Selection Committee. The respondents have relied on the judgment of this Tribunal in OAs No. 2957/2010, along with 2959/2010 & 2960/2010 dated 01.02.2011, in para-2 of which below the composition of Departmental Peer Review Committee, following has been observed by the Co-ordinate Bench of this Tribunal:-
"Screening of eligible candidates based on their Annual Confidential Reports (ACRs) after having completed the minimum residency period in a particular scale/grade. Evaluation criteria and percentage of score required to qualify is laid down in the FCS policy;
Candidate cleared by the Screening Committee are required to appear for a personal interview before a selection committee and again percentage of score required to qualify is laid down in the FCS policy."
5. We have heard both sides and have perused the material placed on record. Learned counsel for the applicants argued that Hon'ble Supreme Court in the case of Babu Verghese & Ors. Vs. Bar Council of Kerala & Ors., AIR 1999 SC 1281, in para-28 has laid down as follows:-
"It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any Statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylow v. Taylor (1875) 1 Ch.D 426 which was followed by Lord Roche in Nazir Ahmad v. King Emperor MANU/PR/0020/1936 who stated as under:
Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all."
5.1 He argued that in the case of the applicants proper procedure has not been followed and cases of very Senior Scientists have been screened out by incompetent Committee.
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6. After hearing the rival submissions, we are of the opinion that we have been called upon to decide whether all cases of promotions from Scientist-E to Scientist-F were necessarily to be placed before Departmental Peer Review Committee or whether Departmental Peer Review Committee was required to further screen only those cases which had been recommended by Departmental Selection Committee as fit for promotion. In other words did Constitution of Departmental Peer Review Commission confer a right on all candidates eligible for promotion to the post of Scientist-F to be considered by Departmental Peer Review Committee?
6.1 To decide this issue, we have gone into the reasons given in the DoP&T O.M. dated 21.11.2005 for constitution of Departmental Peer Review Committee and High Level Peer Review Committee have been given. A perusal of this O.M. reveals that these reasons are available in para-3 of the aforesaid O.M., which reads as follows:-
"The operation of the FCS in the various Ministries/Departments which are within the ambit of the provisions of the above Office Memorandum, viz., Department of Science and Technology, Department of Scientific and Industrial Research and Department of Bio-technology under the Ministry of Science and Technology, Department of Ocean Development, Ministry of Environment and Forests, and Department of Information Technology under the Ministry of Communications and Information Technology, and the Ministry of Non-Conventional Energy Sources has been the subject of careful consideration of the Government. It has been observed that the Departments have not undertaken identification of the scientific and technical activities, as enjoined upon them and set forth in Annexure-I of the Office Memorandum. Furthermore, it was decided and conveyed in the instructions aforesaid that the 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 scientists who have to their credit demonstrable achievements or higher level of technical merit are recommended for promotion under the Scheme. It has been observed that the Ministries/Departments have not been very careful in recommending cases, for promotion under the FCS."
6.2 From the above, it is clear that the need to constitute these Committees arose when it came to notice that Ministries/Departments in the past had not 7 OA-4438/2013 been very careful in recommending cases for promotion under FCS. As such, norms for promotion needed to be tightened and made more rigorous.
7. Thus, it is obvious that these Committees were constituted to rigorously screen cases being recommended for promotion under the FCS. They were not constituted because the deserving cases were being screened out by Departmental Selection Committee but because even undeserving cases were being recommended by such Committees. Thus, the intent of policy makers was to create an extra layer of screening so that undeserving cases do not get promoted.
8. This view gets further strengthened by the communication dated 05.05.2006 of DoP&T cited above in which it has been mentioned that the existing system of screening and assessment shall continue to be applicable for promotions upto Scientist-G even though recommendations for promotions to Scientists-F & G grades needed to be further reviewed by the Departmental Peer Review Committee.
9. Thus, in our opinion, Departmental Peer Review Committee was constituted to create another level of screening before list for promotion is finalized. This Committee was not meant to replace this existing system of screening and assessment prevalent in the department. The Departmental Committees were fully competent to screen the cases at their level. Only those cases, which were found fit for promotion by such Committees were to be placed before Departmental Peer Review Committee, which would further adjudge their suitability and finally recommend only those, who were found fit by this Committee.
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10. On the basis of above analysis, we come to the conclusion that there was no infirmity in the action of the respondents in so far as considering the cases of the applicants for promotion was concerned. We, therefore find no merit in this case and dismiss the same. No costs.
(Raj Vir Sharma) (Shekhar Agarwal) Member (J) Member (A) /Vinita/