Central Administrative Tribunal - Delhi
Dr Bijendra Singh Negi vs M/O Personnel,Public Grievances And ... on 31 January, 2025
1
Item No. 30 (C-4) O.A No. 2177/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 2177/2021
Reserved on : 13.01.2025
Pronounced on : 31.01.2025
Hon'ble Ms. Harvinder Kaur Oberoi, Member (J)
Hon'ble Dr. Sumeet Jerath, Member (A)
Dr. Bijendra Singh Negi, Age 58 years
A Scientist
S/o Sh. Mohan Singh Negi
R/o F-8, Type V B, HUDCO Place Extension
Near Andrews Ganj, New Delhi-110049. ...Applicant
(By Advocate : Mr. A. K. Kaushik)
Versus
1. Union of India
Through The Secretary
Ministry of New and Renewable Energy
Government of India
Block-14, CGO Complex, Lodi Road
New Delhi-110003.
2. The Secretary
Government of India
Ministry of Personnel Public Grievances and Pension
Department of Personnel & Training
North Block, New Delhi. ...Respondents
(By Advocate : Mr. Satish Kumar)
2 OA No. 2177/2021
Item 30 (C-4)
ORDER
Hon'ble Dr. Sumeet Jerath, Member (A):
The instant OA has been filed by the applicant Dr. Bijendra Singh Negi under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs :-
"8. (a) Quash and set aside the Impugned Order E.File No.49/18/2017-Admn.I dated 28.08.2019, whereby the request of the applicant for promotion from Scientist-D to Scientist-F w.e.f. 01.01.2006 as per the recommendations of the Assessment Board Meeting of MNRE which was held on 19-20th September, 2006 for promotion of scientists for due date 01.01.2006 under the Flexible Complementing Scheme (FCS) for promotion of scientists in Scientific Ministries of the Government of India was rejected by the respondents, in the interest of justice.
(b) Direct the respondents to promote the applicant to Scientist Grade-F w.e.f. 01.01.2006 viz. the date of eligibility of the applicant, in the interest of justice.
(c) Direct the respondents to grant the applicant the consequential benefits after granting him promotion from the date of his eligibility viz. 01.01.2006, for next promotion, in the interest of justice.
(d) Costs of proceedings be directed in favor of the applicant and against the Respondents.
(e) Pass any other order[s] or direction [s], which this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the instant case as well as in the interest of justice."
2. The conspectus of the case as per the counsel of the applicant is that the applicant joined the respondents as Sr. Scientific Officer-Grade I (Scientist-C) on 19.01.1992. He was promoted as 3 OA No. 2177/2021 Item 30 (C-4) Scientific Officer (Scientist-D) in March, 1997. Later, on 19.11.1998, a Flexible Complementing Scheme (FCS) was introduced by the DoPT vide its OM dated 2/41/1997-PIC to provide promotional avenues for various Scientists working in various departments in order to remove stagnation among them. As per the said scheme, all officers would be first screened on the basis of gradings in the Annual Reports (ACRs) [10 marks for 'outstanding, 08 marks for 'very good', 06 marks for 'Good', 04 marks for 'Average' and 0 marks for 'Poor' and only those officers who satisfy the minimum residency period linked to their performance would come within the zone of consideration. It was further provided that those who are found to be exceptionally meritorious with all outstanding gradings would be relaxed in the residency period of not more than one year on any single occasion in the entire career. However, vide another OM No. 24/36/98-Admn.I dated 13.04.2000 it was clarified that the Scientist -D in position as on 09.11.1998, who were eligible for promotion directly to the grade of Scientist-F under the extant provisions of Recruitment Rules in vogue before the introduction of the modified FCS and who have been permitted by the DoPT as a special case to continue to be eligible for promotion directly to the Scientist Grade-F, would be eligible for consideration for promotion under the said scheme. In addition to some other conditions, field experience in research and development and/or in implementation of the scientific project was compulsory for promotion. For consideration of promotion under FCS at the first 4 OA No. 2177/2021 Item 30 (C-4) opportunity, the cut off criteria was modified to 85% from 90% vide another OM dated 09.11.1998. Accordingly the process of Screening and Assessment was initiated in January 2005 and out of the 18 eligible Scientists who were assessed by the Assessment Board, only the applicant's name was recommended for promotion to Scientist Grade-F. In the next assessment also conducted in February, 2008 the applicant was assessed along with others and was promoted to the post of Scientist - F on 28.04.2008. Aggrieved, he sought information under RTI about the outcome of the Meeting held on 20.09.2006. The same was provided to him on 12.08.2010 conveying that only he was recommended for promotion to Scientist - F on 19-20.09.2006. It was also mentioned that the proposal of referring the recommendations of the Departmental Peer Review Committee was not approved by the Competent Authority without assigning any reason. His representations dated 30.11.2009 and 07.06.2010 praying for antedating his date of promotion w.e.f. 01.01.2006 was also rejected stating that under the FCS guidelines the recommendations of the Assessment Board in the case of in-SITU promotions to the post of Scientist Grade-F are required to be referred to the Departmental Peer Review Committee (DPRC) for review. Unsatisfied, he further submitted series of representations dated 22.10.2012, 29.06.2015, 15.10.2015, 13.11.2018 and 11.03.2019 which were also rejected. He was also supplied desired information sought by him under RTI. After which some new facts came to his notice which forced him to file yet another detailed 5 OA No. 2177/2021 Item 30 (C-4) representation requesting the respondents to consider his case for promotion to the post of Scientist - F as per the decision of the Assessment Board. However, the same was rejected. The OA No. 3593/2019 filed in this behalf was withdrawn on 13.12.2019 with liberty to file a fresh one. Hence, the present OA.
3. Learned counsel of the applicants based his arguments on the following grounds :-
"(i) The applicant should not be made to suffer on account of bureaucratic inefficiency and delay as the applicant was entitled for promotion to the post of Scientist Grade-F w.e.f. 01.01.2006 and he was also recommended by the Assessment Board but the recommendations of the Assessment Board was neither accepted nor rejected by the competent authority. Therefore, the applicant was forced to make to suffer on account of inefficiency and delay on the part of the respondents only. Therefore, the impugned action of the respondents is liable to be quashed and set aside.
(ii) The respondents have failed to appreciate that the recommendations made by the 5th Central Pay Commission for modifying the Flexible Complementing Scheme (FCS) in operation and 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 sometime back and the DoP&T OM No.2/41/97-PIC dated 09.11.1998 had issued detailed guidelines modifying the then existing FCS. The applicant was fully eligible on 6 OA No. 2177/2021 Item 30 (C-4) 01.01.2006 but due to the delay and laches on the part of respondents, the applicant could have not been promoted to the Scientist Grade-F. Thus, nobody should be allowed to take advantage of his own wrong.
Therefore, the instant petition deserves to be allowed with all consequential benefits.
(iii) The respondents do not have any right to reject the legitimate claim of the applicant for promotion from the Grade Scientist-D to Grade Scientist-F, even when the respondents themselves had recommended the name of the applicant for promotion to the Grade Scientist-F. The applicant is fully eligible to be promoted to the post of Grade Scientist-F in terms of the Flexible Complementing Scheme read with the DoP&T OM No. 2/41/97-PIC dated 26.04.2000.
(iv) The respondents do not have any reason not to promote the applicant to the post of Scientist Grade-F, once he was recommended by the Assessment Board, but the Competent Authority had not accepted the same without giving any reason. Therefore, the impugned order passed by the respondents suffers from illegality and deserves to be quashed and set aside.
(v) The respondents admitted themselves that :-
"(11) as regards in-situ promotion of Scientists 'D' (Rs.12000- 16500) to Scientists 'F (Rs.16400-20000), the DoPT has clarified that the recommendation for promotions to Scientists 'F' grade needs to be reviewed by the Departmental Peer Review Committee (DPRC).7 OA No. 2177/2021
Item 30 (C-4) (12) We may therefore refer the case to the DPRC for review. All Scientists indicated under para 10 above are clear from the internal vigilance angle.
(13) Approval of the Competent Authority is solicited for promoting Shri I.P. Singh and Dr. G. Prasad from the grade of Scientists 'C' to 'D' as indicated under para 10 above and for referring the case of Dr. B.S. Negi for promotion from the grade of Scientist 'D' to 'F' for review by the DPRC. It is further stated that the Joint Secretary of the Department has noted down this file was handed over to me by the Hon'ble Minister to have a re-look and on 07.05.2007, it was noted in the promotion file of the applicant "Discussed with Secy. on 3rd May, 2007. It was felt that these cases could be processed along with future cases of promotion when they take place. It was recognized that these 3 officers will not be subjected to another Assessment Board. In other words, the recommendations of the last Assessment Board w.r.t. to these officers stands".
It shows that the respondents have not intentionally and deliberately given the promotion to the applicant to the Scientist Grade-F even he was recommended by the Assessment Board and thereafter no rejection was done at any level. Therefore, the action of the respondents not to promote the applicant from the date of his eligibility viz. 01.01.2006 is not acceptable and deserves to be quashed and set aside.
(vi) The respondents have also failed to appreciate that the applicant was not to be subjected by the another Assessment Board for 8 OA No. 2177/2021 Item 30 (C-4) promotion to the Scientist Grade-F as per the observation dated 07.05.2007 of the respondents, but he has not only subjected by the another Assessment Board but also had been given the promotion to the Scientist Grade-F w.e.f. 28.04.2008 instead of 01.01.2006 from the date of the applicant's eligibility, ignoring thereon recommendation dated 07.05.20017, vide which it was observed that the applicant will not be subjected by the future Assessment Board but the recommendations of the last Assessment Board with respect to the applicant stands. Therefore, the impugned action of the respondents is arbitrary, illegal, unjust and deserves to be quashed and set aside.'
4. To support his case learned counsel for the applicant relied upon the decision given by the Hon'ble Apex Court in Union of India & Ors. vs. S. K. Murti, wherein it has been held as under :-
"It is not in dispute that vacancies existed when the Departmental Review Committee considered the case of the respondent and other similarly situated persons for promotion. It is also not in dispute that In terms of paragraph 51.25 of the Vth Pay Commission Recommendations, the Departmental Review Committee/Assessment Board was required to meet every six months, i.e. in January and July and the promotions were to be made effective from the date of eligibility. Therefore, it is not possible in find any flaw in the direction given by The High Court.
The special leave petition is accordingly dismissed.
Since the time Fixed by the High Court for compliance of the directions given by it has already expired, we direct the petitioners to do the needful within four weeks from today. Similar order shall be passed for all similarly situated persons despite the fact that they may not have approached the High Court questioning the order passed by the Tribunal. This direction is being given to avoid further litigation in the matter."9 OA No. 2177/2021
Item 30 (C-4) Reliance has also been placed on the order of the Coordinate Bench of this Tribunal in OA No. 2549/2015 dated 04.01.2023, the excerpts of which are reproduced below :-
"13. The decision presently under challenge was based on the earlier decision rendered by the High Court in S.K. Murti which was affirmed by this Court. The view taken by the High Court that the interest of the concerned Scientists could not be put to prejudice as a result of delay in constituting the Assessment Committee in time, was affirmed by this Court. The subsequent office memoranda dated 19.9.2016 and 12 02.2019 carry and seek to implement the same principle.
14. In the circumstances, we see no reason to take a different view in the matter. Affirming the view taken by the High Court which is presently under challenge, we dismiss this Civil Appeal No. 6359 of 2016 without any order as to costs."
"13. The reliance on the decision of this Tribunal in RA No.157/2017 in OA No.2894/2012 in Union of India & Ant. v. Vinod Kumar Jain & Ors. (supra) by the respondents to contend that the decision of the Hon'ble Supreme Court is a judgment in personam and hence cannot be extended to all similarly placed persons, is of no help in view of the above decision of the Hon'ble Supreme Court where the Hon'ble Supreme Court has held the same as a judgment in rem. We are of the considered view that a decision of the Supreme Court is binding on all Courts/Tribunals. By Article 141 of the Constitution of India it is laid down that the law declared by the Supreme Court OA No. 2549/2015 shall be binding on all courts within the territory of India.
14. In view of the dicta of the Hon'ble Supreme Court in Vinay Kumar (supra), and also for parity of reasons, we allow this O.A. and direct the respondents to ante date the award of promotion to the next grade to the applicant under the FCS from the date of eligibility keeping in view the decisions of this Tribunal in S.K. Murti (supra) as upheld by the Hon'ble Supreme Court. The applicant shall be entitled to all consequential benefits, including re- fixation of pay, pension and arrears thereof, in accordance with the relevant rules and law. These directions shall be complied with by the respondents within 12 weeks from the date of receipt of a copy of this order
15. There shall be no order as to costs."10 OA No. 2177/2021
Item 30 (C-4)
5. The preliminary objections raised by the respondents in his reply is that the OA is barred by delay and laches as the applicant has sought promotion to the grade of Scientist-F with effect from 20.09.2006 and his earlier representations on this issue has already been rejected and he did not challenge the same and they have attained finality. It is settled proposition of law that repeated representations do not give fresh cause of action to file a case. Limitation period is always counted from initial cause of action. Hence the OA is not maintainable in view of Section 20 and 21 of the AT Act, 1985. He further stated that as the applicant has already retired, as per the settled proposition of law, he cannot be granted retrospective promotion. He denied that the representation of the applicant dated 22.07.2019 was rejected without assigning any reason as OMs issued by the DoPT were mentioned in their response.
According to the learned counsel for the respondents merely fulfilling eligibility criteria does not confer any right of in-situ promotion to the applicant as under FCS, in-situ promotion from Scientist-D to F is effective from the date when recommendations of the Screening Committee is assessed by the Departmental Peer Review Committee (DPRC) and same is accepted and approved by the Competent Authority. He did not deny that the Assessment Board in its meeting convened on 19-20 September 2006 considered various proposals for in-situ promotion including 11 OA No. 2177/2021 Item 30 (C-4) promotions of Scientist D to the grade of Scientist F in terms of DoPT OM No. 2/41/97- PIC dated 26.04.2000. The screening Committee headed by Secretary, MNRE evaluated ACRS of eligible Scientists and apart from other categories screened in 18 Scientists D to the grade of Scientist F. On the basis of selection criteria the Assessment Board recommended the applicant for in-situ promotion from Scientist D to Scientist F. The recommendations of the Assessment Board were required to be assessed by the Departmental Peer Review Committee (DPRC) but the proposal of the Ministry for referring his case for promotion from Scientist D to F for review by DPRC was not approved by the Competent Authority. Further, the Minutes of the Assessment Board were not signed by the Chairman of the Board. The recommendations of Assessment Board were neither assessed by the DPRC nor approved by the Competent Authority. However, he was promoted directly from the grade of Scientist D to F surpassing the grade of Scientist E (which came into existence in November, 1998) from 28.04.2008 i.e., from the date when the same was approved by the Competent Authority and also as clarified by DoPT vide their OM dated 16.03.2010.
The point raised by the applicant is not tenable since the approval of the Competent Authority is mandated by extant Rules and guidelines and the same was not accepted by the Competent Authority.
12 OA No. 2177/2021Item 30 (C-4) With regard to the plea of rejection of his representations it has been stated that his representation dated 22.10.2012 was considered again and the applicant was informed vide OM dated 17.4.2013 that issue raised by him have been considered in consultation with DoPT and it has not been found possible to accede to his request for promotion from the grade of Scientist D to F under FCS, 1998 from retrospective date. In fact, the respondent-department had sought following clarification from DoPT :-
"Dr. B.S. Negi requested for consideration his promotion to Scientist F under Flexible Complementing Scheme with effect from 20th September 2006 instead of 28th April, 2008. Dr. Negi was initially recommended by the Assessment Board for promotion to Scientist F based on cut-off date 01.01.2006. As per the FCS guidelines his case was further required to be reviewed by the Departmental Peer Review Committee. However as per the directions of the Competent Authority i.e. the then Minister (NRE), the Ministry has decided to process the case along with the future cases of promotion and not subject them to another Assessment Board. Thereafter, the next meeting of the Assessment Board and Departmental Peer Review Committee were held for 2007 and their recommendations were submitted to the Competent Authority, who has directed that the proposals for promotion of scientists may be considered/submitted based on cut-off date 01.01.2008 to avoid anomalies/ambiguities."
Accordingly DOPT was requested to consider the request of the applicant and advice whether he can be granted in-situ promotion to the post of Scientist F with effect from 20th September, 2006. DoPT vide their OM No. 15968/US/RR/10 dated 16th March 2010 informed that 'as Dr B.S. Negi was recommended by DPRC for promotion on the basis of cut-off date of 01.01.2008 only, his request for 13 OA No. 2177/2021 Item 30 (C-4) promotion to the post of Scientist F w.e.f. 20.09.2006 cannot be allowed'.
6. Heard the learned counsel of both the sides ; examined the documents on record and perused the relevant judgments. We have observed that the applicant was entitled for promotion to the post of Scientist Grade-F w.e.f. 01.01.2006 in terms of the Flexible Complementing Scheme (FCS) read with DoP&T OM No. 2/41/97-PIC dated 26.04.2000. His case was recommended by the Assessment Board which was then to be assessed by the Departmental Peer Review Committee (DPRC). However, for some inexplicable reason this was not approved by the Competent Authority and the minutes of the Assessment Board were therefore left unsigned by the Chairman of the Board. The applicant's promotion was later subjected to another Assessment Board and he was given promotion to Scientist Grade 'F' w.e.f. 28.04.2008 instead of 01.01.2006. This has caused severe prejudice, de-motivation and disillusionment to the applicant who missed the bus of promotion w.e.f. 01.01.2006. We find this action of the respondents highly arbitrary, discriminatory, capricious and unjust. The balance of convenience clearly lies in favour of the applicant. Accordingly, we are of the considered opinion that this miscarriage of justice needs to be redressed in the light of the ratio given in the judgment of Hon'ble Supreme Court in UOI vs. S. K. Murti (Supra) and the decision of Coordinate Bench of this Tribunal 14 OA No. 2177/2021 Item 30 (C-4) in OA No. 2549/2015 dated 04.01.2023, the excerpts of which are reproduced below :-
"13. The decision presently under challenge was based on the earlier decision rendered by the High Court in SK. Murti which was affirmed by this Court. The view taken by the High Court that the interest of the concerned Scientists could not be put to prejudice as a result of delay in constituting the Assessment Committee in time, was affirmed by this Court. The subsequent office memoranda dated 19.9.2016 and 12. 02. 2019 carry and seek to implement the same principle
14. In the circumstances, we see no reason to take a different view in the matter. Affirming the view taken by the High Court which is presently under challenge, we dismiss this Civil Appeal No 6359 of 2016 without any order as to costs.
13. The reliance on the decision of this Tribunal in RA No.157/2017 in OA No 2894/2012 in Union of India & Anr. v. Vinod Kumar Jain & Ors. (supra) by the respondents to contend that the decision of the Hon'ble Supreme Court is a judgment in personam and hence cannot be extended to all similarly placed persons, is of no help in view of the above decision of the Hon'ble Supreme Court where the Hon'ble Supreme Court has held the same as a judgment in rem. We are of the considered view that a decision of the Supreme Court is binding on all Courts/Tribunals. By Article 141 of the Constitution of India it is laid down that the law declared by the Supreme Court OA No. 2549/2015 shall be binding on all courts within the territory of India.
14. In view of the dicta of the Hon'ble Supreme Court in Vinay Kumar (supra), and also for parity of reasons, we allow this O.A. and direct the respondents to ante date the award of promotion to the next grade to the applicant under the FCS from the date of eligibility keeping in view the decisions of this Tribunal in S.K. Murti (supra) as upheld by the Hon'ble Supreme Court. The applicant shall be entitled to all consequential benefits, including re- fixation of pay, pension and arrears thereof, in accordance with the relevant rules and law. These directions shall be complied with by the respondents within 12 weeks from the date of receipt of a copy of this order.
15. There shall be no order as to costs."15 OA No. 2177/2021
Item 30 (C-4)
7. We are inclined to follow the aforesaid decision of the Coordinate Bench of this Tribunal. Accordingly, we quash and set aside the impugned Order E. File No. 49/18/2017-Admn.I dated 28.08.2019, whereby the request of the applicant for antedating his promotion w.e.f. 01.01.2006 was rejected. Thus, the respondents are directed to consider promoting the applicant w.e.f. 01.01.2006, if he is otherwise found fit. This exercise should be completed within a period of 12 weeks from the date of receipt of a certified copy of this order. It is needless to mention that the applicant would be entitled for all the notional benefits like fixation of pay and allowances and seniority. However, there will be no payment of any arrears of pay and allowances on the principle of 'No work no pay'. There shall be no order as to costs.
(Dr. Sumeet Jerath) (Harvinder Kaur Oberoi)
Member (A) Member (J)
/Mbt/