Central Administrative Tribunal - Mumbai
Jyotsna Navendu Rohekar vs M/O Communications on 10 April, 2019
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wile.
CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAT BENCH, MUMBAI.
O.A.320/2013
Dated this Wednesday the 10 day of April, 2019.
Coram: Dr.Bhagwan Sahai, Member (Administrative)
Shri R.N. Singh, Member (Judicial).
Smt.dyotena Navendu Rehekar,
Scientist "B', {Ministry of
Communication & Information Technology},
National Informatics Centre,
Udyog Bhavan, Ganesh Khind Road,
Pune - 411 007.
Residing at :
109/72, Chaitranya,
Road No.5, J.P. Nagar,
Ln)»
Mumbai - 400 063. »- Applicant.
(In person).
Varsus
i. The Secretary,
Ministry of Communication
& Information Technology,
Electronics Niketan,
C.G.0, Complex, Lodhi Road,
New Delhi - 110 G03.
2. The Director General,
Mini Sery OF Communi catLe on
& Information Technolog
A-Block, C.G.0, Complex,
Ledhi Road, New Delhi ~ L1G O03.
3. Ms.P.V. Kamat,
Senior Technical Director,
NY ' c
National Informatics Centre
Udyog Bhavan, Ganesh Khind Road,
Pune - 437 OoO7.
é&. Or.B.R. Gairola,
Bx. Director General of NIC,
Ministry of Commnication
& Information Technolagy,
A-Block, ©.G.0. Comolex,
Lodhi Road, New Delhi ~ 110 oc
td
>
2 OA320/2013
National Informaties Centre,
Udyog Bhavan, Ganesh Rhind Road,
Pune - 41212 007
sy
Scientist "BE"
National Informatics Centre,
11% Floor, New Administrative Building,
Opposite Mantiralaya,
Mumbai ~- 400 O32. +» Respondents.
i By Advocate Shri V.S. Masurkar }.
Order reserved on: 11.02.2019
Order delivered on : 10.04.2019
ORDER
Per: Dr. Bhagwan Sahai, Member (A).
Ssmi.dyotsna Navendu Rohekar, Scien "Bt, National Informatica Centre, Ministry of Communication & Information Technology, Udyog Bhavan, Pune filed this ¢G.A. on 12.03.2013 seeking re dated 360.120.3010 "
o fay. sett iW os of hf Ch.
oh Ct bety ry @ a o 1 rh of the Review Committee; (pb). order that the applicant should a promoted from Ssclentist-B to Scientist-C with fe}. erder that the apolicant should be promoted om notional basis to Scientist-Bb & E with Sequential oGenefits with effect from the dates 8 i on which her juniors were promoted;
(db. order that there should not be any ViChimizati Qe harassment to hh Gn account of this Litigation;
had OA320/2013 -
wm ee * order that promotees promoted vide order dated O1.01.1999 and 31.12.1999 Af found illegal should be brought down along with Respondent No.s and 6 to their respective positions as x 31.12.1998; and {f}. provide cost of this O.A.
2. . Brief facts of the case:
2{a}. The applicant is working as Scientist 'B! with National Informatics Centre (far short NIC}, Pune. She doined NIC as Computer Operater on Pas G. 2
-1982 and at that time she was having a B.Sc. Degree and a Diploma in COBOL and System Analysis. In 1983, her designation was changed to Scientific tant-A, On O1.01.1986 she was promoted as a th 3 a .
Scientific Assistant-B and on 01.03.1989 she was again promoted as Scientific Officer ''B'. Then on d1,.01.1995 she was promoted as Scientist/Engineer rade 'Bt, 2 (b). The Ministry of Science and Technology, Government of India issued OM dated 42014/2/86-
Adm. T {A} an 28.05.1886 for organization of working in Scientific departments. As per Para {14} Of the personnel policy, the minimum educational qualification required for Scientific posts is Msster's degree in Science or Bachelor's. degree in engineering, technology, medicine or Quivelent (Annex-A-6} .
4 : OA320/20132{a). The Department of Personnel and Training 2 4 ({DOPT} issued OTL OG 12.1998 a new Flexible t& Complementing "Scheme fax in-situ promotions applicable to Seilentifie and Technical Group "A! posts in the Department of Sclence and Technology. Under the FCS Rules, 1998, (Para 3(b), ne person other than a person possessing the essential educational qualification of atleast a Master's Degree in Natural / Agricultural Sciences or a Bachelor*s Degree in Engineering or Technology © medicine shall be eligible for in-situ promotion (page 48 of OA).
2 (da). The applicant correspondad with the respondents about fhe minimum qualification required for the post of obentist to seek selected for promotion toa the post of Scientist which was against the guidelines issued by the BOY im its OM dated 03.11.1996. However, she claims that she did not receive any reply. When she became due for promotion on 01.01.1998, the respondents called her on 20.12.1998 to attend an interview. She attended the interview on x 24,12.1998 through Video Conferencing but she was ms ct ot promoted while { > ie oH ion) tet ie ct o tty ry uy 4g te Ch.
G 33 Cr & & o a iG promoted from Sclentist "Bt to Scientist Ch, She x received a reply dated OF .11.2000 absut rejection ae ® © & common order on 30.01.2008 directing 1 4 OA320/2013 at her representation dated 18.02.2000 stating that oo ficers with graduation plus diploma in Computer © Sas) Science could get premoted oniy upto Seclentist 'c! i jicant atates that the respondent No.l issued OM dated 06.08.2001 in pursuance to the DOPT quidelines of 69.112,.1998, in which the educational qualification mentioned is the same as in the DOPT OM, However, there was mo mention promotion af graduates. The applicant has alse stated that if the respondents had follewed the OM of 06.08.2001, then it is not clear as to why they admitted in the High Conrt that they had no such norms. To promote certain candidates first and then to issue the amendment to Recruitment Rules is not permissible in law, it has been claimed. 2{£}. Not satisfied with the above reply, the applicant filed 0.B.819/2002 on 18.09.2002 before his Tribunal and another OA. 2455/2003 ot © 13.03.2003, On both those OAs the Tribunal passed respondents to convene a review DPC to consider her Case re aS om 23.12.1899 to 30.12.1998 for promotion to the post of Selentist ''C!' with effect from.
O2.01.1999 and on considering the case of thes ip applicant by the review DPC if she is found fit she 6 OA.320/2013 should be promoted to the post of Sclentist ''¢' E~rom O1.01.1999 with consequential benefits (Annex-
ret 2 had alsa noticed hs ey, wy 'naa jt o et ct DR o ba os.
ip fae ct ax fis) ry iia uo 30 ri co hw that there had been overwriting and changing of Grade 'A' to Grade 'B' in the ACRs of the applic marred for the years 1938, 1997 and 1396. -- That order oF the Tribunal was challenged by the respondents in High Court in Writ Petition No.1568/2008, which was dismissed on 11.09.2008 finding no infirmity in the © XS order of the Tribunal. The applicant has also claimed that during hearing of that Writ Petition, the respondents had admitted before the High Court that there were no norme prescribed for giving weightage to ACRs and interview taken through video conferencing.
2 (h}. The applicant then filed ai Contempt Petition No.09/2009 on 20.01.2009 for HOR compliance with the order of the High Court. The respondents filed an 5SLP before the Apex Court which wa also ismissed on 13.07.2009 as the ih respandents could not produce any evidence on recerd to show that they had complied with the guidelines issued by the BOPT in its OM dated fet O9,121.1998, mor any notification about amending the ssential educational qualification fer the post of Scienkistr, f SAL, DULY 2th). During pendency Qe the CeP.. the Review Committees and called ioe 3 respondents forme the applicant for an interview on 4,17.
Bo oO £9.
w $ cr the applicant aid not attend LE hecause constitution of the Review Committee was against Mi the order of the Tribunal which had directed to hold a review DPC and not a Review Committee. The respondents convened another Review Committees on O4.12.2009 but the acolicant did mot attend it for the same reason as mentioned above. Then on G6.10.2010 the Tribunal passed an order based on the .contention of the applicant that she was already qualified in the interview and, therefore, further interview was unnecessary and directed the applicant to attend the Review Committee meeting.
2(4). On 30.10.2010, the applicant attended the Q view as directed by the Tribunal but without fete prejudice to her rights and content ions te challenge the process of interview. In that interview held through video conf erencing, the respondents declared the applicant as ineligible ms for promotion for haying not scored the required percentage of 80% marks for passing the interview > But the agplicant claims that she was declared declaration. Then the Contempt Petition was dismissed on O1.02.2011,. Thereafter the applicant LLL COLO ii 8 OA320/2013 | again filed another O.A.387/2011 on 28.03.2011 which was later on withdrawn by her. Hence this OWA, The apoilicant has submitted her writter notes of arguments on 31.01.2019 after making their copy available to counsel for the respondents. The latter has also submitted his written notes of arquments. On @PT1.02.2019, when the case was again scheduled for hearing, the apolieane explained that in addition to her written arguments aay submitted she has nething more to. add. Heard the counsel for the respondents.
fats.
3. Gontentions of the parties:
Phe applicant has contended that ~ vt ie m 3a). as directed by Tribunal on 30.01.2008 to reconsider her case a review BPC was to be convened for her promotion as Seclenbist 'Ct. She also claims that the Tribunal had heid that she "EO ty eligible for that remetion as far as her educational qualification was concermed in view of ¥ her inclusion in the list of eligible candidates called for interview in December, 1998 and many other candidates called for the same interview wers also only graduates like her; 3b). the respondents have never disclosed which Reorultment Rules have been appiied by them in promoting the candidates and have a Oo f z G
2.
a O ft rem fs ie 9 -- GA320/2013 evidence before the tribunal toe show that they have given promotions as per DOPT OM dated O9.11.2998.
a 2 eo or e ter B yaars i.e. 30.10.2010, the respondents x 0 oy f--?
f-2 m f2.
nex for review DPC and declared her unfit in D ndations of ths MD ' view of the bOPT OM. The xecomme Review Committee meeting held on 30.10.2010 through video conferencing should be set aside as she declared unfit in that meeting by giving her only S73. marks?
3(e}. the tampering of her ACRs, the criteria for promotion to the post of Scientist ''C' and method of giving Marks by the earlier DPC on 24.12.1998 have not been considered by the Review Cammithee, hence recommendations of the Review Committee declaring her unfit are in violation of the DOPT inetructions. Since the rescondents have promoted simple grad e candidates in December, 1998, the Flexible 'Complementing Scheme rules contained in the BOPT OM of 09.21.1998 were not followed. Therefore, the report af the Committees is nothing but mere scrap of paper; 3 (d}. when the NIC is not covered under the FCS cules and promotions have aiso been given from Q2.0 feed id 'a 4 ct pe Jae hana et
9) A os = CF or a3] ad 56h rR % a $2 ke fo ~ fos @ .e By § 7 oy) rs 63, < therefore, all these promotees should be brought. down uo their respective positions as OFk BLLL2.199s. For deviations from the DBOPT OM in i0 OA,320/2013 promoting others, the sependents have taken a shelter under a policy decision contained in the 3f{e). the applicant has now made Shri V.H. Deshpande and Smt.Meera Joshi as Respondent Na.d5 and 6 in the present O.A., who were also promoted although they were only simple graduates like the applicant. Smi.P.V¥. Kamat has been impleaded in this O.A. as she was one of the members of the feo Review Committee which held its meeting & 30.10.2010;
3{f£). the applicant admits that Lf all promotions made between O1.01.1999 ta 31.12.1355 are reversed holding them as illegal, then in that case the applicant would also not gst any promotion. If the respondents prove that all the promoteas were legally promoted, then the applicant would also be entitled fer promotion as Scient icy 'e' as all those promoted earlier were junior to her and she should get appr opriate seniority aS being senior ta Shri Deshpande;
Big). the applicant lost the opportunity of promotion because of fraugulent trick of the respondents and the DPC in marking the apolicant as absent when she was actually present before the DPC and was aise interviewed on 24.12.1998 . The non- gqeant of promotion to her by the Review Committes Hi OA.320/2013 on 30,10.2010 is violation of her fundamental rights under Article 14, 16 and 21 of the Censtitution of India as equality before law and equal protection of law contemplate that the accrued and existing rights will not be taken away fron the applicant thereby violating her fundamental rights to consider her for promotion; 3(h}. the repert of the Review Committee dated 30.20.2010 is illegal, arbitrary and discriminatory and promotion given by the DPC are illegsil and, therefore, the promotees should be reversed to their positions as on 30.12.1998. AS per Girections of the Tribunal in its decision of SO.01.2008 in O.A.817/2002, the scope of review DPC was limited to reconsideration of ACRs of the a applicant in light of the findings of the Tribunal.
s Bs The scope of holding review DPC did not include interviewing of the applicant once again. However, a by Misreading the judgment of the Tribunal and caonveniantiy ignoring the findings recorded therein, they arbitrarily recorded that the applicant had secured only 57% marks as against 808
-
a SF requ ng we ® a hy 3 a el on poe for prometion. This deliberate, wilful, intentional overreaching of ct res tt findings of the Tribunal and deserves to ke i2 , OA.320/2013 aoplicant had appeared for interview in the Year 1898 and, therefore, subjecting the applicant to a fresh interview in the year 2010 was erroneous and, therefore, the marks given in the interview are required to be ignored. The respondents have deliberately used 2010 interview to disqualify the applicant as the marks allotted in the interview are usually incapable of being judicially reviewed by Courts and Tribunals. While in the judgment /order of the Tribunal dated 30.01.2008 '© applicant was held to have qualified in. the interview of 1998 and the only aspect where the DPC Rad faulted was in tt we @ matter of giving marks in the ACR which was manipulated/tampered with for the years 1996, i997 and 1998. The Tribunal aise feud tO.
4a noticed that the ACRs for the years 1397 and were in fact 'Very Good" but by overwriting Cr a D bey .
had been chanced ta 'Gend' and the review DPC w © required to go into this aspect while considering the case of the applicant and, therefore, the marks n the interview of 2018 eannot be fete given considered;
3(4). the reliance GF Respondent No.Z on relaxation Note ar 16.07.1999 about special ang there is mo proof of amendment of recruitment Y 13 OA 320/2013 el sao qualifications. That note wa oF 16.07.2399 i wo ~ Therefore, that note is irrelevant fer the present 3 {k).. Since the Respondent No.3,4,5 and 6 have net shown any intere a fC oan this case as per the orders of the Tribunal en 27.04.2015 and T7.08.2015, the case should be decided exparte against them. im para No.l of the DOPT OM on Flexible Complementing Scheme, no special dispensation has been given to any Department and ~ in Para 2{a} it was also specifically laid down that the FCS shall not be applicable where the criteria specified vide this OM are not fully met. Ags per Annex-T to the OM, the criteria to decide the fitness of a candidate far promotion are residency period of 3 years, essential educational qualification, 'minimum percentage of ACRs and minimum percentage of marks in review interview.
The posts of Scientist "Bt and Scientist cj K o below the post of Group 'A' and Respondent No.1 and ny x * aad X . on > * 2 have no legal rights to change the design nation of past like Sclentist 'B', Scientist 'C! and so on to Group "BT, In promoting other candidates having Lower educational qualification, the Respondents No.1 and-
2 have applied only 3 morms i.e. residency period minimum percentage cof ACR assessment marks ang id OA320/2013 minimum percentage of marks in review interview.
x The claim of the respondents that they got the power under Article 309 ef the Canstitutien to amend or modify any at any time is not applicable to the Flexible Complementing Echeme notified under DOPT OM dated O9.121.1998 on recommendations of the 31}. the applicant has also attempted to benefit from these casel:
% AWS Io (iy. District Collector & Chairman, Vizianagres Social Welfare Residential School Society ' Viglanagram and another Vs. M. Tripura Sundari Devi reported in 1990 3 SCC, in which it was held that when ay advertisement mentions a particular qualification and an appointment is made in disregard to it then it is not a matter only between the appointing authority and the appointee concerned, The aggrieved are all those who n© Similar or better qualification than the appcintee D ry Bs .
oF
-
ot & 4 9 63 Gs ur but who had not applied for the po because. they did not possess the qualification mentioned in the advertisement.
(id). In case of Umrao Singh Vs. Punjabi University, Patiala and others (2005) 15 Bcc 365, while dealing with the power of selection Committee.
roar relawation of norms, it was held that although Court must Lock with respect upon the performance ® is OA 320/2013 in duties by experts in the respective flelds, it cannot abdicate its function of ushering in a secieaty based on rutile of lax. Once dt is qualification, the entire process of selection so far as the selected candidate is concerned gets yitiated. The power to relax must be clearly speit cut. and cannot otherwise be exercised.
(iii}. In case of Bhanu Pratap Vs. State of Haryana and others in Civil Appeal No.6205/2011, the Apex Court held that if rounding off is given to the appellant as seught by him there has to be + » imilarc rounding off fer a person whe has missed {fi feat o23 tas oO fete ws oO 3 iD oF the papers just by a whisker. it is vided that a person who could not get 50% in eS ry Oo wo my ra B 1} oe cr.
® §: a as) the written test, if this cule of un, rounding off is offered, then he would also get qualified. Somewhere a jdine has to be drawn and that line has to be strictly cbserved like a Lakshman RekhS and no variation of the .game is gossible unless it is provided under the Rules 'itself. Therefore, when the agoplicant has been denied promotion from the date on which her jduntor t was promoted it amounts to discrimination i t Based on these case laws, the applicant 5 cy claims that if all of the promotees have been 16 OA 320/2013 E ad ey pramated frof Sdientist-B te eantist-F during Ki leqaliy entitled to iw sis be 2 uf Q last 20 years, then she i get all promotions upto Scientist-F with all consequential banefits;
3 Gm). at the end of her written submission, the 4 rr poe t es 6% a { applicant has also men i that she has no grudge against ail her | colleagues or against the respondents.
The respondents have contended that - Sin}. this O.A. has been filed as a complete) old story and the applicant has rotally overlooked the legal implications of the order of the Tribunal ated 06.10.2010 in C.P.No.9/2009 in O.A.245/2010.
The applicant did not challenge that order of the ribunal which would establish whether the applicant should have appeared for the interview conducted by the experts under the Flexible © order dated 86.16.2010, it was the contention of the petitioner in the CP that earlier the Tribunal had observed that the petitioner had already qualified in the earlier interview and further interview is uncalled fer. However, Since the matter is still pending and she is cailed for interview, weé think in the interest of 'justice and f a] % my ores ys ot Payee 2 . : eri 7 a oe 2 . A ey the factual situation, she willl appear for the 17 OA 3320/2013 interview before DPC inow called Review DPC Committee} on the date as may be fixed by them.
This is without prejudice to her contention as aforesaid, The Review DPC Committee, after fet oH complying with. the directions sued oy the Tribunal will report the matter on the next date. The respondents accordingly complied with the order of the Tribunal and that is why after s tit hearing both the parties, the Contempt Petition wa disposed of om O1.02.2011. In view of the above few w direction of the Tribunsi, the present O.A. devoid of merit and iiable to be rejected;
So). . the National Infermatics Centre is under the -Department of Electronics and Information Technology, Government of India, it is a Scien rt ifiec and Technical organization for implementing use of Information PechnoLlegy in the process of governance. While if was set up in 1975-76, ih was al. by.
ey 5 rought under the Planning Comm B Lesion in March, i888 and was again placed under the Ministry of information Technelegy at the time of its creation 3p). general instructions and policy decisions of the DOPT dealing with promotien by conducting applicable in Science and TPechnology nan ~ mn ty ae ' a Bs eee ' oe Departments and there is no soncept of review DPC in the Department. Also in this Department there _ 18 OA.320/2013 iS mo cencept of availability of vacancy for promotion. Also seniority and senicrity list have no relevance for considering promotions ain the Science and Technology Departments. Those Departments have a different Scheme called the Flexible Complementing Scheme under implementation i S$ sanctioned by the DOPT;
Sig}. performance in the present grade during the prescribed residency. geriod is the core of the review process and career advancement is based © merit. For this purcose the Assessment for promotion jis in two stages; ies screanin by a Seoreening Sommittes on the basis of performance as reflected in the officer's confidential reports and interview by a Selection Committee. The minimon required length of service in a grade only makes persons in that grade Gliigible for being called for op personal interview and it dees not confer any righ on them for promotion;
3(r}. after appcintment of the applicant as Computer Operator from 06.09.1982, she was re-
designated as ot Lentific/technical Assistant-A, Ehen as Scientific/Technical Assiletant-B from O1.10.1986, age Selentific Officer/Engineer~'SB! Ss from O1.10.1989 and as Scientifie-B with effect' from OL.OGL.19S5;
m 19 OA 3S260/2013 Bis}. in the order of the Tribunal in O.A.245/2003 filed by the applicant, the denial of promotion by the Review Committee to the post of ¢ + a sOLentist- from G1.01.1999 was set aside and it was directed that the applicant be deemed promoted as Scientist-C with effect from 01.01.1999 with due seniority, Prior to that, the applicant had Filed another O.A.817/2002 challenging the non-grant of personal hearing to the applicant by then secretary, Ministry of Information and Technology. Both these OAs were dismissed by the Tribunal vide order dated 02.01.2004 When the applicant challenged the dismissal of these two GAs by the Tribunal in Writ Petition No.320/2004, the High Court disposed it Of at admission stage vide order dated 08.03.2004, condoning the delay in filing the O.A. and directed the Tribunal to decide those twa OAs on merit;
fen 3{t). when she attempted to file copies of large number of documents through M.A.344/2004 in G.A.245/2003, that M.A. was disposed of on O7,.08.2004 stating that these documents are public Gocuments and the applicant can inspect them and, therefore, these may alse be supplied to her. The respondents complied with the direction of the.
Tribunal on the M.A. dated 17.08.2004 BY making the mentioned documents available te her and also by 20 x » Pa OA320/2013 producing some of the documents before the Triburael:
3{u). then by dismissing the O.A.817/2002 as infructuous, the Tribunal on 30. O.A.24 ust (2003 by the directing of convene a review DEC to consider applicant fer promotion to the post as on 23.12.19 fo 30.22.1958. Tribunal in DPC was held om 30.10.2010 to On considering the ise oof the Committee gave her a score of 57% lower than the minimum 803 required Biv). from L1.OG8.1982 (i.e. prior Fe tee the posts/officers below eonteined in OM dated 18.
ap pl ~ > the adi fore ce mq upto which Sclent Assistants and Scientific 'SB' recraited initially with the qualification of M.Sc. /8.S5ea./Diploms in Engineering can be considered for promoti is the grade or Sclentist/Engineer 'SD! i.e. currentiy Sclentist-c. For promotion b wi Scientist-C, the officer must O17. 2008 respondents the case 1ts consider for has been following a r Group-A Scientific and Technical 07.1983 and 01.10.1984 to the OM fic / allowed the CO.
of the of Sclentist-C orders 06.10.2010, a meeting of the revit her case.
rt 4 5 applicant, he marks which was promotion to the DOPT OM policy office For rs rs e | \\y Group-A, the » tnscraericl are of 61.10.1984, officer/Engineers Grade D 21 OA.320/2013 fulfil the conditions prescribed for those grades (Exhibits Red and R-5} >;
3 (w). Sinee the BROPT OM dated O5.11.1998 on FCS and Technology, Department of Electronics, National Informatics Centre, Planning Commission, career advancement of NIC Qfficers recruited prior to that notification was getting affected adversely.
Therefore, the NIC took up the matter with DOPT, Pp y
-which after examining the proposal, granted a special dispensation vide note dated 16.07.1922 to NIC regarding essential qualifications for in-situ promotion under Flexible Complementing Scheme in addition to those prescribed under the DOPTD ON dated 09.11.1998 (Exhibit R-7}. As per the DOPT OM dated 68, fad LEL.1996 and OM of Ministry of Information Technology dated 15.11.2000, applicability of Flexible Complementing Scheme for Group "AT :
elant ist fh fr as Q D Ky tf £ ty th S we) Se b 2 th we.
@ poe sts and Technology Off Hence the question of granting promotion to the applicant from QO1,01.1999 does not arise;
3 {x}. as per the order of the Tribunal dated O6.10.2016, the Review Committees was constituted and its meating was scheduled om 23.09.2009 and .2009. The applicant had been intimated about:
it through email and speed post. However, on both these dates the applicant remained absent and, 22. OA320/2013 therefore, the Committee could not consider her Sty). the meeting of the Raview Committee was again held on 30.20.2010, which the applicant ttended through video caonrerancing and the Cammithee considered her case for promotion to the post of Scientist-c with effect from O1.01.1999 as per order of the Tribunal dated 30.01.2008, The gualifying marks for selection to the post of sclentist-C are 80% but the applicant secured on © 7% marks, hence she could not be promoted. The Campetent Autherity approved the recommendations of the Review Committee dated 09.11.2010 and the applicant was informed accordingly on 19.11.2016.
Therefore, the applicant has no ground to challenge the | promotion orders of ether officers on O1.02.1999 and 31.12.1999.
3{z)}. AS per special dispensation agreed to © the DOPP to the proposal of Nic xrevarding essential guelifiecstions for in-situ promotion under Flexible Complementing Scheme {in addition £O those qualifications prescribed under .the DOPT. OM of O9.12.3998), Sxisting employees with B.Sé. Degree with P.G. Digloma in Computer Science were allowed prometion under the Flexible Complementing Scheme.
upta Scientist-c. For promotion in the year 1999, the Committee had considered the case 3 rh the 23 OA A320! 2013 apolicant in December, 1998 but she was not found mh it. For subsequent years interviews were held in December, 1999, April, 2001, December, <901 ana January, #002 which the applicant did not attend demanding documents of others:
A © 3 (za). as per directions of the Tribunal datac 36.01.2008 in O.A.245/2003 and dated 06.10.2010, ho NIC nominated its Dy. Director General (Smt.Vandana Sharma} cS investigate the case oF overwriting/interpolations in the ACK dossiers of the applicant as observed by the Tribunal. in the 3 w ten winutes of that investigation, it has been recorded it that Smt.Suman Bakshi, who was the controlling officer of the applicant at that time, admitted that she had herself done the changes of overwriting and appended her initials as 'SB.
ground is not relevant now;
3 (2b), in the case of Union of India & Others Va. B&B. Annathurai & Another, the Apex Court has held that if the respondents despite being give:
opportunity to appear in the selection, chose not to appear for promotion and stayed away from it, they cannot seek a promotion without appearing in the interview with retrospective date. In any case, such action om their part was ah peril om their own service career and also sSetrimental to their 24 OA320/2013 interest. Having taken such 4 vital -unilatersl iL i iz igion, they cannot now seek to take advantage of thelr own wrong.
bed t wae in wiew of this that the Tribunal ordered the applicant to attend the interview to be taken by the Review Committee. Then acplicant attended the interview on 39.10.2010 and by considering all the relevant provisions of the Pe fat exible Complementing Scheme, the Review Committes examined fitness of the applicant or oth re) The applicant was, however, found to be unfit for et mw 3 (24). the respondents have also cited @e Apex Courh caselaw i.e. Union sf India & Another Vs. S.K. Goel & Ors. AIR 2007 SC 1199, which held that 4 the DPPC enjoyed full discretion ta devise it Th rh methad and procedure for obtective assessment o 4 Suitability and merit of the candidates bei considered by it. Hence, the interference by the High Courk is net called for; 3 (ad). the written nmetes of arguments submitted by the counsel for the respondents are on behalf of ail the respondents i.¢. Respondent No.l to 4. The xy © Oh O O rt ao @ oo ct in roy C3 tal $3 ms .
af sy wu < we performed their efficial work as members of the Review/Interview, Ccmmittee/Board without any malafide against the + ety - eo = 7% i. %, x on , fn a ord os Ww wee, applicant ang ail the alilegaticans made by her 25 . OA320/2013 against them are denied. The Respondent Ne.,1l was not involved in the process of review for promotion of the applicant during December, 1998. Under the Rules/quidelines applicable for assessing officers for premotion, disclosure of marks secured by such Seientists amd Technical Officers during the evaluation process is not provided. Therefore, the claim of the applicant that she was mot given cerrect marks scored by her is devoid of merit; 3(ze). the interview Hoard/review Committee evaluated the case of the applicant based on the axtant norms / criteria and did not recommend her for promotion toe the grade of Scientist-C from t: ee fant ~ rq ® OL,02.1999, The applicant aisa failed to uti the subsequent opportunities for her evaluation during following years. Thus instead of availing of the opportunities made available to her for f appearing in the interview as per the prescribed norms for consideration for promotion to Scisentist- G, she herself on her own will chose to remain absent and instead she has been filing repeated OAs for that promotions 3 (zt). the applicant now also seeks further tr bas promotions on notional besi A he wn tt & rr ow D e 3
62. a tf o hy = pod iet-0 and Scilentist-E with effect fram the.
in = clen dabes on which her juniors were promoted, However, pond this claim of the applicant is devoid of merit 26 , QOA.320/2013 ecause she is not eligibles for further promotions when on being evaluated fer Fitness as per the mf prescribed procedure, she could not qualify for promotion even to Scientist-C and there is no concept of seniority for in-situ promotions under the Plexible Complementing Scheme for Scientists and Technical Officers;
eo 3 (zg). in the present oO.
' \. she is seeking the same relief which had aliready been considered by the Tribunal in the earlier O-R. 245/200 Therefore, the relief being sought by the applicant now in the present O.A. for promotien te Scientist- C is an attempt to get reopened the same issue which was decided by the Tribunal in the earlier OAS. This is aiso sgainst the principles of resjudicata as the same had already been considered by the Tribunal in her G.A.245/2003., In fact O.A.817/20602 and 0.A.245/2003 way Gismissed by the Tribunal on being time-b a i ib ar Subsequentiy in the Writ Petition filed in the High Court by the applicant (S319/2004 and 3220/2004), the cgelay im Elling of the G.A. was condoned and her of request for hearing the OAs was allowed. Then by a common order dated 30.01.2008, the O.A. BLT, (2002 was dismissed as infructuous and o.A ZAS/2003 was, ko convene a bpeview DPC to consider her case as on ® 27 OA320/2013 €3.12.3998 to 39.12.1998 for the purpose of promotion to the post of Scientist-C with effect fram 01.01.1999;
Sizh}. in that order the Tribunal alse took a4 o m4 ey view that the applicant was eligible as far as her educational qualification was concerned because ahe had been included in the list of eligible candidates called for interview in December, 1098;
she was on par with other candidates promoted as Scientist-C, and she was legally entitled to be considered for the same. When the respondents filed a compliance affidavit on 19.11.2000 along with minutes of the meeting of the Review Committee om O1.02.2011 the Tribunal clased the Contempt Petition Ne.o5/2009 filed by the applicant. Therefore, the applicant's attempt now to get reopened or revisited the same issues through the present O.A. is liable to be rejected with heavy costs 3{z2i). none of the Scientists and Technical Officers of NIC not possessing post graduate degrees in the prescribed dis siplines/areas has 6 been promoted beyond the past of Scientist-c. The he special dispensation agreed to by the DOPT through co 7 ny a ku ct B Co.
f ary Co i £& tO 63 ze p fat cr a3) fee scheme for Seclence and Technology officers or th vm 'f es, % , 4 5 ce . nS mot ys lines of Flexible Complementing Scheme s ing to the promotion 28 OA.320/2013 the condition that the existing employees with B.Sc. and --.G. Diploma in Comeuter Science would be x allowed promotion under the Scheme only upto the pre-revised pay scale of Rs.2000-4500 i.e. pay scale for Sclentist-C. Promotions to Group 'A! S&T Ortficers with effect from 01.01. 1999 are on the basis of the FCS policy of BDOPT OM dated 09.11.1998 and the Ministry of Electrenics and Information Technology OM dated 06.08.2001 issued with concurrence of the DOPT given on 16.07.1995; © S Sz 3}. the attempt of the applicant to raise the issue of educational qualifications for promotion to Sclentist-C is irrelevant, because her eligibility for promotion upto the grade of Scientist-C as on 01.01.1999 was never in doubt and it was alsa upheld by the Tribunal. However, her claim for promotion to the grade of Sclentist-C was subject to fulfilment of the 3 conditions i.
completion of prescribed residency period in previous grade, clearing of the screening process ang om being feund fit for promottior after avaluation by 8 duly constituted interview Board. Promotions of some of the officers were notified by the Ministry of Science and Technology on Y 29 OA320/2013 evaluation by the interview Board for promotion te the grade of Scientist-C to be effective from IL. OL.1999, The applicant aiso attended the interview before the interview Beard, but after evaluation, the Board did not recommend her name for the promotion. Therefore, averment made by the applicant about educational qualification and policy violation are misplaced; 3izk). the Rescondents No.5 and 6 possess Post Graduate degrees in their respective disciplines and are covered under the Mi inistry of Electronics & Information Technology OM dated G6.08.2001 by which the x application of Flexible Complementing Scheme has been adopted for Group 'A' Scientists and Technical officers of the Ministry and its field organizations. The statement of the applicant in Paras 15 and 16 of her written submission is false because, now promotions of the existing Group 'A' officers are governed by the modified Personnel Policy for Group 'A' S&T officers of the Ministry er 3{2i). the precedents quoted by the applicant in Para 17 to 19 of her written submissions pertain to Macters of direct recruitment and they are irrelevant in her case which is & matter cf in-situ promotion under the Flexible Camplementing Scheme.
30 OA.320/2013a fhe relief sought by the applicant is aleo selt- contradictory as she seeks to be promoted to the grade of Scolentist-0 under the promotion policy which she terms as illegal. While the < the interview Board is a collective decision of members of the Board, the applicant has chosen the name of eniy one of the interview Board members as a@ respondent. This act of the ap shows her grudge against her cclleagues and, therefore, her claim at the end of the wri TEER submissions that she does not bear any grudge against any of her colleagues/respondents is ns who have been promoted vide order dated 01.01.1999 and order dated 31.12.1999 along with Respondents No.8 and 6 shouid be reverted back to their respective positions a@s on 31.12.1998 is HO maintainable because she has not imoleaded them in the O.A. to whem she claims to be senior. in view of these facts, the O.A. is totally devoid of merits and deserves to be dismissed with cost.
4. AnaiyslsS end conclusions:
We have perused the O.A. memo and 'Ste ' annexes, rejoinder of the applic 8 3 a rm © 0 be hes % ri 2 g ms 1 rejoinder filled by the respondents, wreitten "Ue 31 ----- OA,320/2013 oh mt and considers:
3
the arguments advanced by both the parties, Based on cur careful consideration of the foregoing, we conclude as follows.
4ta). The applicant has been eariler promoted three times ea G1,01.1986, OL.OL.19e9 and O1.O1.2995. On the issue of her promotion as Scientist-C, the applicant has been filing OAs Since 2002. The present O.A. is 5" in the sequence. In between she filed C.P.9/2009 and two Writ Petitions No.319/2004 and 320/2004 in the High 4ib). The FCS notified by the DopT OM dated O9,12.1998 is for Group-A officers of Science and Technology Departments of Government of India.
The applicant seems to have got totally confused with stipulat tans of this DOPT OM and stigulations of the OM of Department of Electronics and Information Technology dated 06.08.2001. The La rt ter OM is for benefit of NIC officers like the applicant who were not getting the benefits of BOPT OM of O9.11.1998. In fact this order of the Ministry of Electronics and Information Technology was a special dispensation allowed with concurrence af DOPT under which employees of NIC having only B.Sc. beqree were allowed te be promoted upto the. grade of Scientist-C. The applicant is net a Group-A employee of NIC, therefore, her contention that ne 32 OA.320/2013 promotion can be made outsice the previsions of thie DOPT OM is irrelevant.
x & (a). In fact as explained by the respondents, 4 they have never held her educational qualificatio as ineligible for promotion as Scientist-c. The facts of the O.A. reveal that this is a very strange case in which the applicant has been provided repeated opportunities to participate in the sélection process for pramotion to Seclentist-c but she herself refused to avail of ail. ChQG opportunities and has been litigating for the last iv years for that promotion. Along with other also considered for that promotion in December i998. At that time she could not qualify for the promotian. In subsequent yeers she herself refused to attend the interview for that promotion in December, 1399, April, 2001, December, 200 January, 2002, 23.09.2009 and 64.12.2009, Even when as per direction of the Tribunal dat no StL G6,10.2010 the respondents organized the meeting o fet the Review Committee on 23.09.2009 and 04.12.2009, the applicant -again took a confrontational and litigating stand claiming that it was not a review pPC and Wae only a Review Committee and thus » refused to participate in the selection process.
tad tad OA.320/2013 In view of her own failure to participate in the selection process for the cromotion, the applicant has forfeited her claim far that promotion. In this regard the reliance of the respondents on the view taken in the caselaw Union of India & Ors. Vs. B. Annathurai & Another, in Civil Appeals No.i128 and 1129/2009 decided by the Apex Court on 20.02.2009 is correct. In that © selaw it was held that acticen of the respondents $s) 3 of non-appearance in the interview when called for selection was at the peril of their own service career and aise definitely detrimental to their interest. Having taken such a vital unilateral decision they now cannot seek to take advantage of their own wrong. Exactiy similar is the situation in the case of the present applicant as she repeatediy failed toa attend the interview for promotion to the post ef Sclentist-C. Because of her own decision of non-participation in the selection process for the promotion, subsequently ashe i te net justified in making a grievance against her such mon-pr tion.
4 (da). As ger direction of the Tribunal in C.P.99/2009 in G.A.245/201G dated 06.10.2010, the applicant fineall attended the meeting of the review DPC in 2010. That too conditionally by claiming her participation to be without prejudice 34 OAB20/2013 x rt G mr @ is re ghte and contentiona. However, again she ed to qualify for the promotion as she could ae against the minimum ge et Ee te ry Po f SCOLre only 57 requirement of 80% marks. The other claims of the applicant such as for reversion of other persons promoted in 1999, that the Respondents No.1 and 2 have no legal right Eo promote persons as Scientist-B, Scientist~c and so on; the respondents were not competent toa consider promotions under the ' POS beyond the stinpulstions prescribed by the DOR etc, are imaginary and without any basis or justification. These claims are based on failure of the applicant to understand the stipulations under the FCS af BDOPT OM dated 09.11.1958 and OM of tne Department of Electronics and Information Technology referred to above. The applicant has consistentiy adopted a negative confrontational and litigating attitude towards the respondents. ay is unable to notice/realize the positive aspects of.
Ln ww 4 we Ae A om mney dt at z - de Sa te ey th stigulations provided under the epecial it; for benefit of NIC employees Like her with B.Sc. degree and PG diploma for promotion upto Scientist-
on She has failed te understand the difference between the merit based FCS promotions and.
seniority based promotions. instead she perceives wey do-gtank Simard as) : ak 4 ue es '- -# non-existent imaginary negative aspects in the * D cas 'SBT. With that the app had At OA320/2013 special dispensation and has attempted to fos articulate grievance baged on them. Tha endency deserves to be deprecated. 4{ea}. The submission of the respondents that the Respondents No.5 and 6 were promoted at the G&
163) relevant time because they © sess the required s jen higher than the applicant 19 corr mG 2 aca hd bt fete Cy 9 ct poe b tt rt &(£}. As directed by the Tribunal in its order dated 06.10.2010, about the overwriting in the ACR ' of the applicant for the years 1996, 139 ~~ $3 r3 Sh ee 4D io ee) ™ the respondents have got inquiry conducted by Qy.Director General, NIC and in the course of that inquiry the then Reporting Officer of the applicant iSmt.Suman Bakshi} has categorically stated that the overwriting, etc were done by her and 4s token of the corrections, she had appended her initials pes fnt oa i} iB ae ce "
9Cy ks eS at
3) es) a iD F 2.
rs this regard also lacks substance. 4{(g). We find that the respondents have not discriminated against the applicant, they have ty S 6] § ot | cae (B Gh ct oy t £6 Cu es ® 3 ie) a C} oh io re @ ie 3 th Oo ee) k 4 ot Cs im fot te th Cy et plied the game procedure oriter3 far judging fitness for promotion to all these promotea as well as the applicant. The DPC and review DPC/Review fet Committee have not relaxed any quai any of the promoted officers. Hence the thre to her case. Shae has wrong sited those caselaws.
36 OA.320/20134¢h). On careful consideration of all the All through the period after Becember, 1998 without availing of the opportunities made available to her to participate in the selection process, she has indulged in repeated litigation on the game issue of her promotion te Selentist-c through O.ALBLI 2002, Oo.
ied 4. 8138/2002, O.A.245/200 hat ty.
f fr.
O.AR. 387 /2011, C.P.9/2009 and Writ Petitions No. XY & 3220/2004, None of her claims mentioned in the present O.A. has any merit or substance, they are all totally imaginary and devoid of Merde. -- Hence in fairness to the restendents, the applicant is liable to pay them full cost of this wasteful repeated Litigation. However, as disposal of this O.A. has taken a long time, by taking a lenient view, we refrain from imposing the cost. , §, Becision :
The O.A. is dismissed. The parties to (R.N. Singh) (Dr. Bhagwan Sahai) Member (J) Member {A}. tr wt she