Central Administrative Tribunal - Delhi
Mr. N. Chandrasekaran vs Union Of India Through on 9 July, 2015
Central Administrative Tribunal Principal Bench, New Delhi OA No.1785/2012 OA No.3246/2012 OA No. 641/2011 OA No.2881/2013 Reserved on: 07.07.2015 Pronounced on:09.07.2015 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) OA No.1785/2012 1. Mr. N. Chandrasekaran Joint Director (Retd.) 33, Block-IV, Yamuna Kalyani, Ragamaliga Phase-II, Medavakkam, Tambaram-Velachery Road, Chennai 600 100 (TN). 2. Mr. S.K. Babbar, Joint Direcator (Retd.), Flat No.119, Shree Badrinath Apartments, Plot 18, Sector-4, Dwarka, New Delhi 110 078. Applicant Versus 1. Union of India through Secretary to Govt. of India, Ministry of Water Resources, Shram Shakti Bhawan, Rafi Marg, New Delhi-110 001. Respondents 2. The Director, Central Soil and Materials Research Station, Olof Palme Marg, Hauz Khas, New Delhi 110 016. 3. The Secretary, DOP&T Ministry of Personnel, Pension & Public Services, North Block, New Delhi. 4. The Chairman, U.P.S.C., Dholpur House, Shahjahan Road, New Delhi. Respondents OA No.3246/2012 Hasan Abdullah S/o A.W.B. Qadri, R/o 44-A, Okhla, New Delhi-110 025. Applicant Versus 1. Union of India through Secretary to Govt. of India, Ministry of Water Resources, Shram Shakti Bhawan, Rafi Marg, New Delhi-110 001. Respondents 2. The Director, Central Soil and Materials Research Station, Olof Palme Marg, Hauz Khas, New Delhi 110 016. 3. The Secretary, DOP&T Ministry of Personnel, Pension & Public Services, North Block, New Delhi. 4. The Chairman, U.P.S.C., Dholpur House, Shahjahan Road, New Delhi. Respondents OA No. 641/2011 Dr. Rajbal Singh s/o late Sh. Deep Chand R/o A-125, Prodhyogiki Apartments, Sector-3, Plot No.11, Dwarka, Delhi 75. Applicant Versus 1. Union of India through Secretary to Govt. of India, Ministry of Water Resources, Shram Shakti Bhawan, Rafi Marg, New Delhi-110 001. Respondents 2. The Director, Central Soil and Materials Research Station, Olof Palme Marg, Hauz Khas, New Delhi 110 016. 3. The Secretary, DOP&T Ministry of Personnel, Pension & Public Services, North Block, New Delhi. 4. The Chairman, U.P.S.C., Dholpur House, Shahjahan Road, New Delhi. Respondents OA No.2881/2013 Mr. S.K. Babbar, R/o Flat No.119, Shree Badrinath Apartments, Plot 18, Sector-4, Dwarka, New Delhi 110 078 Retired as Joint Director, Cenral Soil and Materials Research Station, Olof Palme Marg, Hauz Khas, New Delhi 110 016. Applicant Versus 1. Union of India Ministry of Water Resources, Shram Shakti Bhawan, Rafi Marg, New Delhi-110 001. (Through: its Secretary) 2. Central Soil and Materials Research Station, Olof Palme Marg, Hauz Khas, New Delhi 110 016. (Through: its Director) 3. Union Public Service Commission, Dholpur House, Shahjahan Road, New Delhi-110 011. (Through: its Secretary). Respondents Present: Sh. R.N. Singh, counsel for applicants in OA Nos.1785/2012 and 2881/2013 Applicant in person in OA No.3246/2012 Sh. Sachin Chauhan, counsel for respondents in OA No.641/2011. Sh. Rajesh Katyal, counsel for respondents in OA Nos. 1785/2012, 3246/2012 and OA No.641/2011. Ms. Bindra Rana, counsel for respondent no.4 in OA No.641/2011. Sh. H.K. Gangwani, counsel for respondents in OA 2881/2013. O R D E R By Dr. B.K. Sinha, Member (A):
These four Original Applications bearing OA Nos. 1785/2012, 3246/2012, 641/2011 and 2881/2013 revolve around the same subject matter, and the reliefs sought are also almost identical and thus, with the consent of the counsel for the parties, these Applications have been heard together and are being disposed of by this common order. For the purpose of consideration of the facts of the case etc., OA No.1785/2012 (N. Chandrasekaran & Anr. V/s Union of India) has been taken as the lead case.
2. In OA No.1785/2012, the two applicants, namely, N. Chandrasekaran and S.K. Babbar are aggrieved by the act of the respondents whereby they, being similarly placed employees, as that of applicants in OA No. 143/2008 (Dr. Rajbal Singh) who also figures as the applicant in one of the present OAs that being OA No.641/2011, have been denied the benefit of the decision of this Tribunal dated 19.12.2010 passed in OA No.143/2008 despite the respondents having antedated the promotion from Chief Research Officer to Joint Director from the date of eligibility being decided by this Tribunal in the aforesaid OA. The applicants are further aggrieved by failure of the respondents to take a decision on the representation for extending the benefits of the decision of this Tribunal in OA No.143/2008 in their favour.
3. In OA No.3246/2012, the applicant (Hasan Abdullah) challenges the validity of the act of the respondents in not promoting him to the post of Joint Director (now designated as Scientist E) with effect from the date on which he completed 5 years of service in the feeder cadre of Chief Research Officer (now designated as Scientist-D) w.e.f. June, 2000 under the Flexible Complementing Scheme (hereinafter referred to as FCS) of in-situ promotion. The applicant further challenges the act of the respondents in promoting him as Scientist E w.e.f. 27.03.2012 under the aforesaid FCS vide order dated 28.03.2012.
4. In OA No.2881/2013, the applicant (S.K. Babbar) is aggrieved by the act of the respondents whereby he has been deprived of the benefit of the Tribunals decision dated 09.07.2009 passed in OA No.1810/2007 (Hasan Abdullah & Ors. Versus Union of India & Ors.). The applicant submits that the applicants in OA No.1810/2007 have all along been junior to the applicant in the instant OA and while complying with the directions of this Tribunal in matters of antedating their promotions, the respondents were expected to extend the benefits of the same to the applicant by antedating his promotions as Senior Research Officer and Chief Research Officer with all consequential benefits.
5. In OA No.641/2011, the applicant (Dr. Rajbal Singh) who also figures as one of the applicants in OA No.1785/2012, is aggrieved by the act of the respondents whereby despite being similarly situated as the applicants in OA No.1810/2007, namely, Hasan Abdullah, Nakul Dev and M.L. Soni, has been denied the benefits of the above decision of this Tribunal.
6. A silhouette of the facts of these cases is as under:
O.A. No. 1785 of 2012: Applicant No. 1 Dr. N. Chandrashekar joined the services of the respondent organisation as Senior Research Officer in June 1985 and stood promoted as Chief Research Officer in 1994 and finally as Joint Director in 2005 and superannuated in 2010. Applicant No. 2, Mr. S.K. Babbar had joined in 1985 as Research Officer, through UPSC and was appointed directly as Senior Research Officer in July, 1990, promoted as Chief Research Officer in 1996 and thereafter as Joint Director in 2007, and finally superannuated in 2010. Their case is that provisions exist vide Rule 5(4) of the Central Soil and Materials Research Station New Delhi (Group A) Posts Recruitment Rules, 1983 whereby departmental officers having rendered regular service of 5 years in the respective grade may be recommended by the Assessment Board for promotion to the next higher grade, based on assessment of records coupled with their performance in the interview. As such in their case, since their promotion to the post of Chief Research Officer was in 1994 and1996 respectively, they ought to have been assessed for the next higher post of Joint Director in 1999 and 2001 respectively, whereas the same had been afforded to them only in 2007. In fact their bio data were requisitioned in 2000-01 but they were not called for interview. Again, in the year 2003 they were called for, for assessment but the ultimate promotion could be made only in 2007. According to them, in OA No. 143 of 2008, the claim of the applicant Dr. Rajbal Singh, who had been promoted on in-situ basis only in 2007, was that vacancy being available as early as in 2003, and the applicant therein having fulfilled the requisite conditions for in-situ promotion, should have been considered and if found fit for promotion by 2003 itself, and thus his promotion had been unnecessarily deferred by four years. The Tribunal appreciating that for administrative lapses or lethargy, promotion chances should not become casualty, allowed the claim of the applicant therein and accordingly directed the respondents to hold review DPC for in-situ promotion of applicant Dr. Rajbal Singh under the Flexible Complementing System and if found fit to promote him as per the provisions of Rule 5(3) of the Rules, in which case he would also be entitled to consequential benefits. It is submitted that the applicants in the present OA being similarly situated, should also be so considered and their insitu promotion advanced to 1999 and 2001 respectively with consequential benefits.
OA 3246 of 2012: Applicant Shri Hassan Abdullah joined the respondent organization as Research Officer in 1985, promoted under the Flexible Complementing Scheme as Senior Research officer in 1994, which was, by an order dated 15-04-2002 advanced to 1990 due to modification of the Scheme as recommended by the 5th CPC; his bio data was requisitioned for consideration for further promotion in 2003 as well as 2006 and was promoted as Chief Research Officer in 2006; in 2010 his promotion to the post of Chief Research Officer was antedated to 1995; his claim for promotion to the cadre of Scientist E as per FCS on completion of 5 years of service as CRO had not been considered.
OA 641 of 2011: Dr. Rajbal Singh joined as a direct Recruit Senior Research Officer in 1989 and his next promotion materialized in 1995 as Chief Research Officer. Since 5 years service would suffice for consideration for in situ promotion under FCS, his promotion as CRO ought to have been advanced to 1994 as had been done in a few cases under the orders of the Tribunal (which were upheld by the Apex Court).
OA No. 2881 of 2013: The applicant in this OA is the second applicant in OA NO. 1785 of 2012, the career details of whom are contained in para (a) above. While his claim in the other OA was with reference to advancing the date of promotion to the post of Jt. Director from 2007 to 2001, in this OA the claim is that his promotion from Senior Research Officer to Chief Research Officer should be advanced from 1996 to 1995.
7. The above details of various applicants could be congealed in a tabular form as under:
Sl No O.A. No. Name of Applicant DOA as R.O. DOP/DOA as SRO DOP as CRO DOP as Jt. Dir Claim in OA 1 1785 of 2012:
1. Dr. N. Chandrashekar
2. S.K. Babbar
----------1985 1985
1990 (DR) 1994 1996 2005 2007 JD from 1999 JD from 2001 3246/2012 Hassan Abdullah 1985 1990 2006
-------
CRO from 1995 3 641/2011 Dr. Rajbal Singh
-----------
1989 1995--------
C.R.O. from1994 4 2881 of 2013 S.K. Babbar 1985 1990(DR) 1996 2007 CRO from 1995 In all these four OAs, the applicants have prayed for the following relief(s):-
OA 1785/12 OA 3246/12 OA 641/11 OA 2881/13Allow this Original Application of the Applicant with costs To set aside the order A-1 with the direction that the promotion of the applicant to the post of Joint Director (Scientist-E) should have been w.e.f. June 2000 when the applicant became eligible for promotion for the post of Joint Director as per FCS.
Allow this Original Application of the Applicant with costs Call for the relevant records of the respondents.
To set aside the impugned orders with the direction
(i) That the applicants be granted the benefit of the judgment of the Honble Tribunal in OA No.143/ 2008.
(ii) that the promotion of the applicants from the post of Chief Research Officer to the post of Joint Director should have been with effect from January 1999 (for applicant no.1) and August, 2001 (for applicant no.2) when the applicants became eligible for promotion, after completing 5 years of service in the grade of Chief Research Officer, under the Flexible Complementing Scheme (of in-situ promotions), and not with effect from 12.2.2007 as the applicants have now been promoted;
(iii) to antedate the promotions of the applicant nos. 1 & 2 with effect from January 1999 and August 2001 as provided under the Flexible Complementing Scheme of in-situ promotion with all consequential benefits, including seniority, promotion, and pay & allowances including arrears and further benefits in relation to retiral benefits as well as revision in regular pension and arrears to that effect.
(iv) pass such other and further order or orders, direction or directions as this Honble Tribunal may deem fit and proper in the facts and circumstances to meet the ends of justice.
Any other relief which this Honble Court deems fit and proper may also be awarded to the applicants.
To antedate the promotion of the applicant w.e.f. June 2000 as provided under FCS of in-situ promotion with all consequential benefits including seniority and promotion and pay and allowances.
Any other relief which this Honble Court deems fit and proper may also be awarded to the applicants.
To set aside the impugned orders with the direction
(i) That the applicant be granted the benefit of the judgment of the Honble Tribunal in OA No.1810/ 2007.
(ii) That the promotion of the applicant from the post of Senior Research Officer to the post of Chief Research Officer should have been with effect from June, 1994 when the applicant became eligible for promotion, after completing 5 years of service in the grade of Senior Research Officer, under the Flexible Complementing Scheme (of-in-situ promotions), and not with effect from 1.8.1995 as the applicant has now been promoted.
(iii) to antedate the promotions of the applicant with effect from June, 1994 as provided under the Flexible Complementing Scheme of in-situ promotion with all consequential benefits, including seniority, promotion and pay & allowances.
Pass such other and further order or orders, direction or directions as this Honble Tribunal may deem fit and proper in the facts and circumstances to meet the ends of justice.
Any other relief which the Honble Court deems fit and proper may also be awarded to the applicant.
Declare the action of the respondents whereby the respondents have denied the benefit of aforesaid judgment to the applicant despite issuance of antedating the promotion from SRO to CRO from the date of eligibility being decided by this Honble Tribunal vide order/ judgment dated 9.7.2009 in OA No.1810/2007 as illegal, arbitrary and discriminatory and consequently quash the same.
Declare that the applicant is entitled for the benefit of promotion to the post of Chief Research Officer with effect from the date on which the applicant completed 5 years of service in the feeder grade, i.e., the post of Senior Rsearch Officer, i.e., with effect from 4.6.1995 under Flexible Complementing Scheme of in-situ promotion.
Direct the respondents to grant the benefit of order/ judgment dated 9.7.2009 in OA No.1810/2007 by antedating the promotion from SRO to CRO with effect from 4.6.1995 under Flexible Complementing Scheme on in-situ promotion with all consequential benefits, viz, seniority, promotion, arrears of pay, allowances and pension.
Direct the respondents to pay interest @ 18% p.a. on the aforesaid arrears of pay, allowances and pension to the applicant herein.
Order exemplary cost against the respondents and in favour of the applicant.
May also pass any further order(s), direction (s) as be deemed just and proper to meet the ends of justice.
8. All the applicants have relied upon the following rules and decided cases:-
(a) Rule 5(3) and 5(4) of the Central Soil and Materials Research Station New Delhi (Group A) Posts Recruitment Rules, 1983;
(b) Order dated14-10-1999 in OA No. 1715 of 1995 of the Tribunal (Hasan Abdullah and anr vs UOI & Ors); Order dated 19-07-2000 of the High Court of Delhi in CWP No. 2456 of 2000 (UOI and others vs Hasan Abdullah and others) ; and Order dated 14-11-2007 in CA No. 4973-4974 of 2001 (UOI and others vs Hasan Abdullah and others);
(c) Order dated 9th July, 2009 in OA No. 1810/2007 Mr. Hasan Abdullah & Ors vs UOI;
(d) Order dated 18-08-2009 in OA o. 2321/2008 (Dr. Rama Devi Mehta and Aother vs OI and Others) and two other connected matters
(e) Order dated 19-12-2010 in OA No. 143 of 2008 Dr. Rajbal Singh vs UOI and others
(f) Orderdated 05-03-2012 in OA No. 1861 of 2010 (Mr. Nakul Dev and Anr vs UOI and others). (Challenge against the same before the High Court of Delhi in WP No. 2361/2013 stood dismissed.
9. In a summary, the claim in these cases may be tabulated in the following manner:-
Sl No. O.A. No. In situ promotion sought for Period involved (and time gap involved in seeking relief) 1 1785/2012 From C.R.O. to Jt. Director Applicant No. 1: From 1999 ( 13 years ) Applicant No. 2: From 2001 (11 years) 2 3246/2012 From C.R.O. to Jt. Director From June 2000 (12 years) 3 641/2011 From S.R.O. to C.R.O. From June, 1994 (17 years) 4 2881 of 2013 From S.R.O. to C.R.O. From 1995 (19 years)
10. Respondents have contested the OA in all the above cases. The technical objection taken by the respondents is about the limitation. In OA 1785 of 2012 objection as to limitation has been expressed stating that the OA is hopelessly time barred. In OA No. 3246 of 2012, the respondents have, in respect of para 3 (Limitation) of the OA has stated a matter of record. As regards OA No. 641 of 2011, the respondents have contended that the OA is time barred. They have further added that the applicant had earlier filed OA No. 143 of 2008 for antedation of his promotion from the post of C.R.O. to the Joint Director Grade, reckoning the date of his promotion as C.R.O. as 01-08-1995 and this is for ante-dation of his promotion from S.R.O. to C.R.O. from 1995 to June, 1994, and, if this is allowed, he would resort to another round of litigation for rescheduling his promotion from C.R.O. to Jt. Director correspondingly. In OA No. 2881 of 2013, the respondents have contended that the OA is time barred and there is no explanation for delay. In their rejoinder wherever filed, the applicants have reiterated their stand that the OA is not time barred.
11. As regards merits of the matter, the respondents have stated that notwithstanding the fact that in-situ promotion is time bound and does not depend upon availability of vacancies, certain other conditions such as performance evaluation as also cap on percentage of such promotion under the FCS cannot be lost sight of and are to be strictly followed. Written arguments by the Respondents have also been filed in one of the cases.
12. We have heard at length the arguments canvassed by the counsel for the parties.
13. The focal point of the argument on behalf of the applicants in a symphonic sound is that promotion under FCS is a regular affair without any need to ascertain existence of vacancies and of their own, on completion of the requisite period of residency period in the lower post, the applicants ought to have been considered for the next higher post. In almost all the earlier cases, the applicants have all been successful in their claims. For the delay on the part of the respondents in considering the case for in-situ promotion, the applicants should not be made to suffer. The Government cannot take advantage of its own wrong.
14. On the other hand, the counsel for the respondents relied on the contents of the counter including the aspect of limitation. In addition, the counsel for the respondents invited the attention of this Court to the ceiling of 30% of the total complement for the purpose of affording the promotion under Flexible Complementing Scheme.
15. We have carefully examined the pleadings of the parties as also the documents submitted and have patiently heard the arguments advanced by their respective counsels. The prime issues that emerge for our consideration in the instant cases are being detailed hereunder:-
1. What is the scope of Flexible Complementing Scheme for Scientists in Scientific and Technical Departments within the Central Soil and Materials Research Station, New Delhi (Group-A) Posts Recruitment Rules, 1983 (hereinafter referred to as Group-A Recruitment Rules, 1983)?
2. Whether the instant Original Applications filed by the applicants are barred by limitation?
3. Whether the promotions claimed by the applicants are permissible within the scope of the Group-A Recruitment Rules, 1983 as also the Guidelines of Flexible Complementing Scheme?
4. What relief, if any, could be granted to the applicants?
16. Of the above, the first and the third issues are intertwined and hence these are taken up first. Insofar as the first of the issues is concerned, admittedly the applicants were members of the respondent organization i.e. Central Soil and Materials Research Station, New Delhi recruited to Group A posts governed by the Group-A Recruitment Rules, 1983. As per the said Recruitment Rules, the recruitment at the lowest post is that of the Research Officer in the then pay scale of Rs.700-1300/-; the next post in the hierarchy is that of Senior Research Officer in the then scale of Rs.1100-1600/- to be recruited by selection; next post is that of Chief Research Officer in the then pay scale of Rs.1500-2000/- to be filled up by selection; and above this, there is a post of Joint Director in the then pay scale of Rs.1800-2250/- to be recruited by selection. A number of duty posts in the organization have also been provided in the Group-A Recruitment Rules, 1983. The FCS was introduced into the respondent organization by the Third Central Pay Commission with the objective to ensure that promotion of an officer in scientific service from one grade to the next grade takes place after a prescribed period of service on the basis of merit and ability, irrespective of the occurrence of vacancy in the higher grade. However, the guidelines provide that the FCS as applied to the respondent organization is not as open as made out above and is subject to certain restrictions. For the sake of clarity, guidelines for introduction of the Flexible Complementing Scheme in scientific departments/ organizations under the Government of India are reproduced hereunder:-
(1) The flexible complementing scheme, as recommended by the Third Pay Commission, seeks to ensure that promotion of an officer in scientific service from one grade to next higher grade takes place after a prescribed period of service on the basis of merit and ability irrespective of the occurrence of vacancy in the higher grade.
(2) The scheme is applicable to Group A services/ cadres in Scientific Departments under Government of India. The scheme may be introduced in individual Departments with the concurrence of the Ministry of Finance, Department of Personnel and Administrative Reforms and UPSC.
(3) Ordinarily, the scheme applies to three levels viz, (a) S-I Rs.700-1300 (b) S-II Rs.1100-1600 and (c) S-III Rs.1500-2000. In very exceptional cases, the scheme may be extended to the next higher level, viz S-IV Rs.1800-2250 on merits depending on the extent of stagnation at this level.
(4) For this purpose, the total number of posts in various grades in the normal course for the purpose of initial recruitment or induction.
(5) As between S-I and S-II there will be complete inter changeability without any restriction except that the total number of posts will be fixed for S-1 and S-II together and the Department will be free to vary the individual numbers in the junior and senior scales so as to ensure promotion of an officer from junior scale to senior scale after putting in the prescribed number of years of service in the former.
(6) The upward movement to S-III level will be by and large without reference to the availability of vacancies subject to an overall rider that the total number of posts so filled in S-III level under this Scheme should not exceed 30% of the total number of posts in S-1, S-II and S-III put together.
(7) In cases where the scheme is extended to S-IV level also the total number of posts that may be filled in S-IV under this Scheme is subject to a further overall ceiling of 30% of the posts in S-III and S-IV put together.
(8) Promotions under the scheme will be made on the basis of five-yearly assessment of eligible officers by a Board of Assessment constituted for this purpose. The Board would make an assessment of technical performance both in terms of quantity and quality of research or other output and also interview the candidates for this purpose.
(9) Promotions under the scheme will be in-situ and personal to the officer concerned and would not result in specific vacancy in the lower grade on that account. The post being currently held by the concerned officer will be upgraded for the duration of his stay in the promotion post. The post will revert to the original level once the officer vacates the higher post.
(10) The operation of the scheme should be reviewed once in every three years in consultation with the DP&AR (PP Wing) and Ministry of Finance to ensure that no structural distortions result from the operation of the Scheme.
17. It is apparent from the above that the Scheme is only applicable to three levels and in exceptional cases it could have been extended to the fourth level. The Scheme further provides that between S-I and S-II there would be complete inter changeability without any restriction. However, the total number of posts will be fixed for S-1 and S-II together and the Department will be free to vary the individual in that. The movement to S-III has been restricted to 30% of the total number of posts in S-I, S-II and S-III put together. This position has been explained in the chart below:-
Post Classification Whether Selection or non-selection post Provision of posts under FCS Joint Director General Central Service Group A Gazetted (Non-Ministerial) Selection Chief Research Officer
-do-
Selection Senior Research Officer General Central Service Group A Gazetted.
Selection Research Officer
-do-
Selection
18. In other words what we have been able to comprehend is that the FCS as applicable in the instant cases is of a mixed character. While in S-II it is of free character, in S-III number of posts is to be limited by a formulation as has been given above in clause (6) of the Guidelines. Thus, the character of the FCS changes and it becomes more of a selection grade in respect of S-III. In this regard, note is also to be taken of Rules 5(2) to 5(4) of the Group-A Recruitment Rules, 1983, which reads thus:-
5(2) The system of flexible complementing and in situ promotion shall be followed in the matter of promotion of departmental officers in the grades of Research Officer, Senior Research Officer and Chief Research Officer to the respective higher grades, namely, Senior Research Officer, Chief Research Officer and Joint Director. 5(3) At any given point of time, the number of posts in the grade of Joint Director and Chief Research Officer shall not exceed 30% of the total number of posts in the grade of Research, Senior Research Officer, Chief Research Officer and Joint Director put together. The number of posts in the grade of Joint Director shall not exceed 30% of the total number of posts in the grade of Joint Director and Chief Research Officer put together. The cut off date is 31st December of the year for consideration in the immediate following panel year.
5(4) The departmental officers who have rendered, in the respective grade, regular service of not less than 5 years may be recommended by the Board of Assessment for promotion to the next higher grade on the basis of assessment of the record of service and also an interview for evaluating their scientific contribution and achievement.
19. In OA No.143/2008, this Tribunal has clearly observed as under:-
It is not in dispute that the FCS of in situ promotion is provided for scientific departments and organizations. The CSMRS was declared scientific institution by office memorandum dated 28.12.1983. The FCS, inter alia, provides that it would ensure that promotion of an officer in scientific service from one grade to the next higher grade would take place after a prescribed period of service on the basis of merit. In the present case, it is provided that 5 years of service as CRO is required to become eligible for FCS in situ promotion to JD. Though it was contended by the counsel for the Applicant that FCS in situ promotion should take place irrespective of the occurrence of vacancy in the higher grade, it is noticed from the pleadings that on the basis of the Scheme made applicable to Group-A services/cadres in scientific departments under the Government of India by letter dated 22.1.1983 of the Department of Science and Technology, irrespective of vacancy clause was not clearly applicable for this organization mainly due to restrictive provisions in Rule 5(3). In our opinion the reliance placed by the applicants counsel on Hasan Abudullas case (supra) would not be applicable as statutory Rule would be having overriding effect. It is noted that the Rule 5(3) does not prescribe vacancy in a higher grade per se. It only limits number of posts in a group to be 30% of their strength. This limiting factor acted against the applicants interest in the year 2000 as contended by the respondents. We find merit in this argument of the counsel for the respondents. Thus, as decision in OA No.143/2008 puts restriction on number of posts in the grade of Chief Research Officer, which as stated in the Clause 5(3) of the Recruitment Rules not to exceed 30% in the grades of RO/SRO/CRO/JD put together, this issue is accordingly answered.
20. Insofar as the third of the issues is concerned, it is the case of the applicants that once an individual completes his residency period, he should be considered for in-situ promotion, while the respondents refer to the ceiling in the total number of posts coming under the Flexible Complementing Scheme. According to them, para5(3) of the Recruitment Rules states that at any given point of time, the number of posts in the grade of Joint Director and Chief Research Officer shall not exceed 30% of the total number of posts in the grade of Research Officer, Senior Research Officer, Chief Research Officer and the Joint Director put together, provided further that the number of posts in the Grade of Joint Director shall not exceed 30%of the total number of posts in the Grade of Chief Research Officer and Joint Director put together. In other words, If the total strength of Research Officer, Senior Research Officer, Chief Research Officer and Joint Director is, say, X, then the total number of C.R.O. and J.D. put together cannot exceed .3X. Again, there is a ceiling in respect of Joint Director. The number of Joint Directors cannot exceed .3(.3X) i.e. .09X. Thus, it is not necessary that on completion of 5 years of service, every S.R.O. would be considered and promoted as C.R.O. and likewise on completion of 5 years of service every C.R. O. Would be considered for promotion to the post of J.D.
21. Though promotion under Flexible Complementing Scheme is independent of availability or otherwise of vacancies, the fact that there is a ceiling of 30% of the total number of posts of RO, SRO, CRO and JD for promotion in the grade of CRO and 30% of posts of CRO and JD for promotion to the post of JD, this requirement is comparable to availability of vacancies and since seniority is also to be prepared, the same would affect the seniority of others.
22. Further, the claim of the applicants pertains to the period of 1994, 1995, 2001 etc., and as such, at this distance of time it is difficult to calculate, and if ventured, it would amount to unsettling the settled matter.
23. Insofar as the second of the issues, i.e. limitation, is concerned, as stated earlier, the contention of the respondents is that the cases are barred by limitation. Even if there be no such contention, it is the duty of the Tribunal to see whether limitation aspect is involved and if so, first the same has to be addressed. The following facts have to be kept in mind while deciding the legal issue relating to limitations:-
(a) As could be seen from the tabular column in one of the paragraphs above, ante-dation of promotion has been sought from the years respectively 1999 &2001, 2000, 1994 and 1995. Thus, the cause of action has arisen in all such cases during the aforesaid years of 1999/2001, 2000, 1995 and 1995 as the case may be.
(b) The O.As filed are during the years 2011 to 2013.
(c) The rule relied upon is Rule 5(4) of the Rules, which were promulgated as early as in 1986.
(d) The earliest of the judgment relied upon is 1999 by the applicants in OA No. 641/2011, OA 1785 of 2012 and also OA No. 3246 of 2012.
(e) In OA No. 3246 of 2012, on the basis of the same rule, the applicant approached the Tribunal as early as in 2008 when he filed OA No. 143 of 2008 to claim his promotion as Joint Director from 2008.
The fact that after every five years, subject to the ceiling of 30% as contained in Rule 5(3) of the Rules, promotion under the Flexible complementing scheme is permissible is fully known to each of the applicants and in fact one of the applicants has applied this rule for promotion from CRO to JD and now he has approached the Tribunal for advancement of his promotion from SRO to CRO to the year 1994. When the applicants knew well about the right for being considered for further promotion, waiting for such a long time stretching over a period of a decade has also to be kept in view. Similarly when similarly situated persons approached the Court in 1990s and obtained orders in their favour, and these are also known to the applicants who could have approached the Tribunal within a reasonable time. Some waited till their superannuation; some rose up from slumber at their leisure hours. Admittedly, none has approached the Tribunal within a reasonable time. Though the relief sought is from the years 1994 onwards, in every application under paragraph 3, it has been averred that the OA has been filed within the limitation period. Limitation is reckoned not from the date of rejection of representations but from the date the cause of action arose. In these cases since the relief sought is from 1994 onwards, the cause of action is construed to have taken place from those years (see and as such, limitation is involved in all such cases and there is no explanation for such delay.
24. Law relating to limitation as pronounced by the Apex Court in various cases may be appropriately referred to at this juncture. Consolidating a catena of decisions, the Apex Court in the case of State of Uttaranchal vs Shiv Charan Singh Bhandari (2013) 12 SCC 179 has analysed the legal issue relating to consideration by the Tribunals of stale claims. The Apex Court in that case has held as under:-
14. The centripodal issue that really warrants to be dwelled upon is whether the respondents could have been allowed to maintain a claim petition before the tribunal after a lapse of almost two decades inasmuch as the said Madhav Singh Tadagi, a junior employee, was conferred the benefit of ad hoc promotion from 15.11.1983. It is not in dispute that the respondents were aware of the same. There is no cavil over the fact that they were senior to Madhav Singh Tadagi in the SAS Group III and all of them were considered for regular promotion in the year 1989 and after their regular promotion their seniority position had been maintained. We have stated so as their inter-se seniority in the promotional cadre has not been affected. Therefore, the grievance in singularity is non-conferment of promotional benefit from the date when the junior was promoted on ad hoc basis on 15.11.1983.
15. It can be stated with certitude that when a junior in the cadre is conferred with the benefit of promotion ignoring the seniority of an employee without any rational basis the person aggrieved can always challenge the same in an appropriate forum, for he has a right to be considered even for ad hoc promotion and a junior cannot be allowed to march over him solely on the ground that the promotion granted is ad hoc in nature. Needless to emphasise that if the senior is found unfit for some reason or other, the matter would be quite different. But, if senior incumbents are eligible as per the rules and there is no legal justification to ignore them, the employer cannot extend the promotional benefit to a junior on ad hoc basis at his whim or caprice. That is not permissible.
16. We have no trace of doubt that the respondents could have challenged the ad hoc promotion conferred on the junior employee at the relevant time. They chose not to do so for six years and the junior employee held the promotional post for six years till regular promotion took place. The submission of the learned counsel for the respondents is that they had given representations at the relevant time but the same fell in deaf ears. It is interesting to note that when the regular selection took place, they accepted the position solely because the seniority was maintained and, thereafter, they knocked at the doors of the tribunal only in 2003. It is clear as noon day that the cause of action had arisen for assailing the order when the junior employee was promoted on ad hoc basis on 15.11.1983.
17. In C. Jacob v. Director of Geology and Mining and another[1], a two-Judge Bench was dealing with the concept of representations and the directions issued by the court or tribunal to consider the representations and the challenge to the said rejection thereafter. In that context, the court has expressed thus: -
Every representation to the Government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the Department, the reply may be only to inform that the matter did not concern the Department or to inform the appropriate Department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim. 18, In Union of India and others v. M.K. Sarkar, this Court, after referring to C. Jacob (supra) has ruled that when a belated representation in regard to a stale or dead issue/dispute is considered and decided, in compliance with a direction by the court/tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the dead issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a courts direction. Neither a courts direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches.
19. From the aforesaid authorities it is clear as crystal that even if the court or tribunal directs for consideration of representations relating to a stale claim or dead grievance it does not give rise to a fresh cause of action. The dead cause of action cannot rise like a phoenix. Similarly, a mere submission of representation to the competent authority does not arrest time.
20. In Karnataka Power Corpn. Ltd. through its Chairman & Managing Director v. K. Thangappan and another , the Court took note of the factual position and laid down that when nearly for two decades the respondent-workmen therein had remained silent mere making of representations could not justify a belated approach.
21 In State of Orissa v. Pyarimohan Samantaray it has been opined that making of repeated representations is not a satisfactory explanation of delay. The said principle was reiterated in State of Orissa v. Arun Kumar Patnaik.
22. In Bharat Sanchar Nigam Limited v. Ghanshyam Dass and others , a three-Judge Bench of this Court reiterated the principle stated in Jagdish Lal v. State of Haryana and proceeded to observe that as the respondents therein preferred to sleep over their rights and approached the tribunal in 1997, they would not get the benefit of the order dated 7.7.1992.
23. In State of T.N. v. Seshachalam[8], this Court, testing the equality clause on the bedrock of delay and laches pertaining to grant of service benefit, has ruled thus: -
....filing of representations alone would not save the period of limitation. Delay or laches is a relevant factor for a court of law to determine the question as to whether the claim made by an applicant deserves consideration. Delay and/or laches on the part of a government servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India would not, in a situation of that nature, be attracted as it is well known that law leans in favour of those who are alert and vigilant.
24. There can be no cavil over the fact that the claim of promotion is based on the concept of equality and equitability, but the said relief has to be claimed within a reasonable time. The said principle has been stated in Ghulam Rasool Lone v. State of Jammu and Kashmir and another.
25. In New Delhi Municipal Council v. Pan Singh and others[10], the Court has opined that though there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, yet ordinarily a writ petition should be filed within a reasonable time. In the said case the respondents had filed the writ petition after seventeen years and the court, as stated earlier, took note of the delay and laches as relevant factors and set aside the order passed by the High Court which had exercised the discretionary jurisdiction.
26. Presently, sitting in a time machine, we may refer to a two-Judge Bench decision in P.S. Sadasivasway v. State of Tamil Nadu, wherein it has been laid down that a person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time, but it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters.
27. We are absolutely conscious that in the case at hand the seniority has not been disturbed in the promotional cadre and no promotions may be unsettled. There may not be unsettlement of the settled position but, a pregnant one, the respondents chose to sleep like Rip Van Winkle and got up from their slumber at their own leisure, for some reason which is fathomable to them only. But such fathoming of reasons by oneself is not countenanced in law. Any one who sleeps over his right is bound to suffer. As we perceive neither the tribunal nor the High Court has appreciated these aspects in proper perspective and proceeded on the base that a junior was promoted and, therefore, the seniors cannot be denied the promotion.
28. Remaining oblivious to the factum of delay and laches and granting relief is contrary to all settled principles and even would not remotely attract the concept of discretion. We may hasten to add that the same may not be applicable in all circumstances where certain categories of fundamental rights are infringed. But, a stale claim of getting promotional benefits definitely should not have been entertained by the tribunal and accepted by the High Court
29. True it is, notional promotional benefits have been granted but the same is likely to affect the State exchequer regard being had to the fixation of pay and the pension. These aspects have not been taken into consideration. What is urged before us by the learned counsel for the respondents is that they should have been equally treated with tMadhav Singh Tadagi. But equality has to be claimed at the right juncture and not after expiry of two decades. Not for nothing, it has been said that everything may stop but not the time, for all are in a way slaves of time. There may not be any provision providing for limitation but a grievance relating to promotion cannot be given a new lease of life at any point of time.
30. ............ However, we irrefragably come to hold that the direction given by the tribunal which has been concurred with by the High Court being absolutely unsustainable in law is bound to be axed and we so do. (Emphasis supplied)
25. It is on the touchstone of the law laid down by the Apex Court in the above decision that the case has to be dealt with. Therein, it was on the basis of the fact that certain juniors had got their promotion that the seniors claimed. Perhaps, there could be a justifiable reason for delay in approaching the court in that case, had the fact of junior being granted promotion prior to the petitioners therein not been known to them. Even that situation is not available in this case. The 1986 orders or even if certain subsequent amendments had taken place in mid nineties about the promotion under FCS, these are known to all the applicants at the very material point of time. In fact, the applicant in O.A. No. 641 of 2011 did agitate against the delay in considering him for promotion under FCS from the post of Chief Research Officer to Joint Director by filing OA NO. 143 of 2008. When for promotion to Joint Director the applicant could agitate as early as in 2008, for his promotion from Senior Research Officer to Chief Research Officer he could have put forth his claim in that very application. Since both are with regard to promotion under FCS and in fact promotion to the post of Joint Director has a direct link with promotion to the post of Chief Research Officer, the case of the applicant would not suffer from the vice of even multiple relief sought. In fact the claim of the applicant for his promotion under FCS from the post of Senior Research Officer to that of Chief Research Officer ought to have preceded his claim for promotion from Chief Research Officer to Joint Director. This not having been done, the OA is hit by the principles of constructive res-judicata. Added to the same is the limitation aspect.
26. One of the common contentions of all the applicants is that such a claim has previously been allowed by this very Tribunal. True, yet, it is to be kept in mind that the decision in such cases stamps only their already existing entitlement and does not in any way come to their rescue to overcome the limitation restrictions. It is not that their entitlement itself came into existence on the pronouncement of the judgment. Just as those who had moved the court to get the benefits on time, the applicants too should have approached the Tribunal within a reasonable time and delay in approaching the Tribunal has its own adverse impact in claiming promotion under the Flexible Complementing Scheme. It is as early as in October, 1999 that OA No. 1715 of 1995 was decided. The said order was challenged before the High Court which had embossed its stamp of approval to the judgment of the Tribunal vide High Court Order dated 19th July, 2000. The petitioners could have then and there, claimed their entitlement; but they have chosen to lie low and in their leisure hours, they claim promotion, which is impermissible.
27. We also take cognizance of the fact that granting relief to the applicants as desired by them would have an unsettling effect upon the entire chain of promotions and would give rise to a domino effect of litigation. We have noted that as the relief is being granted by courts, the respondent organization accordingly revises the seniority list giving rise to a further chain of litigation. We have already held that the applicants are barred under the law of limitation from challenging the issue. We further state in this regard that there has to be an end to the litigation at one point of time or the other.
28. In H.S. Vankani & Others versus State of Gujarat & Others [AIR 2010 (SC) 1714], the Honble Supreme Court held as under:-
42. Strict interpretation of Rule 10 of 1969 Rules and Rule 18 of 1974 Rules was unworkable and literal interpretation would have resulted in absurd results. When the educational qualification prescribed was pass in intermediate examination, the legislature wanted the candidates to undergo training for two years. But, when the higher educational qualification of graduation was prescribed the statute was silent as to the period of training the candidates have to undergo. Even the non- graduates were not sent for training in the colleges mentioned in the Rules but were sent to some other colleges where the duration of course was two years and the candidates of 1980-81 batch was sent for training to the colleges which conducted course of one year duration. Such a course was adopted, since the rules were found to be unworkable.
xxx xxx xxx
48. The above legal principles clearly indicate that the courts have to avoid a construction of an enactment that leads to an unworkable, inconsistent or impracticable results, since such a situation is unlikely to have been envisaged by the Rule making authority. Rule making authority also expects rule framed by it to be made workable and never visualises absurd results. The decision taken by the government in deputing the non-graduates (1979-81 batch) to a two year training course and graduates (1980-81 batch) to a one year training is in due compliance with Rule 10 of 1969 Rules and Rule 18 of 1974 Rules and 2 the seniority of the both batches has been rightly settled vide orders dated 12.10.1982 and 5.3.1987 and the government has committed an error in unsettling the seniority under its proceedings dated 29th September, 1993. This principle has been upheld by the Honble Supreme Court in the case of Shanker Raju versus Union of India & Ors.[2011 (2) SCC 132]. The relevant portion of the judgment is reproduced below:-
10. It is a settled principle of law that a judgment, which has held the field for a long time, should not be unsettled. The doctrine of stare decisis is expressed in the maxim "stare decisis et non quieta movere", which means "to stand by decisions and not to disturb what is settled." Lord Coke aptly described this in his classic English version as "those things which have been so often adjudged ought to rest in peace." The underlying logic of this doctrine is to maintain consistency and avoid uncertainty. The guiding philosophy is that a view which has held the field for a long time should not be disturbed only because another view is possible. This has been aptly pointed out by Chandrachud, C.J. in Waman Rao v. Union of India, (1981) 2 SCC 362 at pg. 392 thus:
"40. ... for the application of the rule of stare decisis, it is not necessary that the earlier decision or decisions of longstanding should have considered and either accepted or rejected the particular argument which is advanced in the case on hand. Were it so, the previous decisions could more easily be treated as binding by applying the law of precedent and it will be unnecessary to take resort to the principle of stare decisis. It is, therefore, sufficient for invoking the rule of stare decisis that a certain decision was arrived at on a question which arose or was argued, no matter on what reason the decision rests or what is the basis of the decision. In other words, for the purpose of applying the rule of stare decisis, it is unnecessary to enquire or determine as to what was the rationale of the earlier decision which is said to operate as stare decisis."
11. In Manganese Ore (India) Ltd. v. Regional Asstt. CST, (1976) 4 SCC 124, at page 127, it was opined that the doctrine of stare decisis is a very valuable principle of precedent which cannot be departed from unless there are extraordinary or special reasons to do so.
12. In Ganga Sugar Corpn. v. State of U.P., (1980) 1 SCC 223 at page 233, this Court cautioned that, "the Judgments of this Court are decisional between litigants but declaratory for the nation." This Court further observed:
"28. ... Enlightened litigative policy in the country must accept as final the pronouncements of this Court... unless the subject be of such fundamental importance to national life or the reasoning is so plainly erroneous in the light of later thought that it is wiser to be ultimately right rather than to be consistently wrong. Stare decisis is not a ritual of convenience but a rule with limited exceptions."
This position has been reiterated in Union of India & Ors. Versus Major S.P. Sharma & Others [2014 (6) SCC 351]. The doctrine of finality has been emphasized by the Honble Supreme Court in this landmark decision, relevant paragraphs whereof read thus:-
82. In a country governed by the rule of law, finality of judgment is absolutely imperative and great sanctity is attached to the finality of the judgment and it is not permissible for the parties to reopen the concluded judgments of the court as it would not only tantamount to merely an abuse of the process of the court but would have far reaching adverse affect on the administration of justice. It would also nullify the doctrine of stare decisis a well established valuable principle of precedent which cannot be departed from unless there are compelling circumstances to do so. The judgments of the court and particularly the Apex Court of a country cannot and should not be unsettled lightly.
83. Precedent keeps the law predictable and the law declared by this Court, being the law of the land, is binding on all courts/tribunals and authorities in India in view of Article 141 of the Constitution. The judicial system "only works if someone is allowed to have the last word" and the last word so spoken is accepted and religiously followed. The doctrine of stare decisis promotes a certainty and consistency in judicial decisions and this helps in the development of the law. Besides providing guidelines for individuals as to what would be the consequences if he chooses the legal action, the doctrine promotes confidence of the people in the system of the judicial administration. Even otherwise it is an imperative necessity to avoid uncertainty, confusion. Judicial propriety and decorum demand that the law laid down by the highest Court of the land must be given effect to. This principle has been further supported by the decision of the Honble Supreme Court in case of Amrendra Kumar Mohapatra versus State of Gujarat & Others [2014(4) SCC 583].
29. We further take the view that the issues have been settled and granting the relief to the applicants would tantamount to setting in motion another series of claims and counter claims. We are firm in our opinion that the settled issues cannot be unsettled.
30. Insofar as the last of the issues is concerned, we have seen that the scope and nature of FCS for Scientists in the respondent organization is not an open house policy but is rather restricted in character. We find that in some of the posts i.e. RO, SRO and CRO, the Scheme is governed by grant of next higher scale on attainment of eligibility, whereas in rest of the posts it becomes restrictive in character and is more like a selection grade. We have also seen that instant four OAs filed by the applicants are barred by limitation, and further even on the merits of the case, OAs are impermissible. We feel that the FCS being partly open and partly restrictive application has given rise to a series of litigation and counter litigation and the issue is becoming more and more complex. Even in the instant series of four Original Applications, we find that while S.K. Babbar figures as co-applicant in OA No.1785/2012, he has also filed his independent case that being OA No.2881/2013. In the same manner we find that Dr. Rajbal Singh and Hasan Abdullah, who are applicants herein, have also been respondents in other cases. This spate of litigation arises from basic flaw in structural design for which amendments are required in the rules itself. It is not for this Tribunal to suggest what kind of amendments would be necessary. However, we feel that the Seventh Central Pay Commission, which is in sitting, would apply its mind and come out with a fair Scheme to minimize the scope of litigation. Hence, we do not find any merit in all the instant four Original Applications, which are accordingly dismissed without there being any order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/