Central Administrative Tribunal - Mumbai
Lata Gupta vs M/O Water Resources on 23 January, 2020
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CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAI BENCH, MUMBAI
ORIGINAL APPLICATION NO.21 0/004 14/2017
Dated this Thursday, the 23° day of January, 2026
CORAM: DR. BHAGWAN SAHAT, MEMBER (A}
RAVINDER KAUR, MEMBER ()
1. Smt-Lata Gupta, Age > 41 yrs.,
(wo, Dr.D.S. Gupta},
Scientist 'C', Central Water and
Power Research Station,
Pune -- 411 G24.
fRiat: D-29, CWPRLS. Stal Colony,
Kirkitwadi, Khedakwasia,
Pune ~ 411 024),
a
Manoj Kumar Verma, Age : 46 yrs.,
(S/o. Rajkumar Verma),
Scientist 'C', Central Water and
i Power Research Station,
Pune ~ 41) 024.
: {Riat: Row House, 1-3/3 Rajyog Township,
Vadgaon Khurd, Sinhagad Re. .
Pune ~ 411 068).
3. M.S. Hanumanthappa, Age : 45 yrs.,
(So. Shivappa Magalada},
Scientiat 'C', Central Water and
Power Research Station,
Pane --4ll O24.
(Rat: 204, Ganesh Nakshatram,
§.NWo.127/1, Off D.S.K. Vishwa Ra,
Dhajari, Pune -- 411 068) 8),
4, Mandar Mohan Vaidys, Age : 44 yrs.,
(S/o. Mohan Vaidya},
Scientist 'C', Central Water and
Power Research Station,
Pune --4ii O24.
éRiat: B-6/9, Sarita Vihar,
Sinhagad Rd., Pane ~ 411 039).
nN
Machiraja Phani Kumar, Age : 30 ¥
(Sra, Machiraja Rama Rao},
Scientist 'C', Central Water and
Power Research Station,
Pune ~ 41) O24.
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9.
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Lh,
K
irkewaihl, f 20, 'Khe be ik
Pune ~ 41] O24),
Mahinder Singh Bist, Age 42 VES.
iS'o. Pan Singh Bist),
Scientist 'C', Central Water and
Power Research Station,
Pune ~ 411 624.
(Rvat: Flat No.301, Wing -'M',
Meghmanthan Society, D.S.K. Vishwe,
Dhayart, Pune -411 041).
anmu Raghuram Singh, Age : 48 yrs.,
(S/o. Sitharam Singh}
Scientist 'C', Central Ww ater ard
Power Research Station,
Pone ~ 411 024.
Riat: D8, CW PRS, Sta Colory,
Khadakwasla, Pune ~ 411 024),
Shimpi Tite ndra Ambadas, Age 46 yrs.,
(S! o. Ambadas Dunju Shimpi),
Scientist 'C, Central Water and
Power Researe h Station,
Pune ~ S11 024.
(R/at: E4/103, Shivaagar Residency,
Society Road, OH Sinhagad Road,
Anand Nagar, Pune ~ 411 091).
Chikine Srishailam, Age : 48 yrs.,
(S's, C. Chinnaiah),
sciemist C', Central Water and
Power Research Station,
Pune ~ 1} Q34.
(Riat: Flat No.K-305, Madimash Apartment,
Wadgaon Khard, Sinhagad Rd,
Pane ~ 411 O41).
PAG vayagepal, Age : 36
(Sfo.0 5
Scientist Ce ontral Watt cr and
Power Re ay earch | Station,
Marnik Baus, $1
Pane ~ 411 G53}.
Pr asad § he Ss. Kun} eh
(S/o. Suresh Kan
Scientist 'C', Cartral Water and
Power Research Station, (>
Pune G Alt Meth.
'Riat t
(Rat: Swapnashilpa B Bungalow,
8, No.l, Dhayari, Pune - 411 041).
iz. Uy Krishnaswamy Kumar, Age: 30 yes.,
(Sfo. ML Krishnaswamy},
Selentist 'C, Central Water and
Power Research Station,
Pune -- 411 024,
(Rat: D-03, CAV PRS. Colony,
Khadakwasla, Pune --- 411 024).
t3. Taran Kumar Swain, Age 46 yrs.,
(S/o. B.C. Swain),
Scientist Wl', Central Water and
Power Research Station,
Pune -- 411 024.
(vat D-16, C WPRS. Colony,
Khadakwasla, Pune -- 411 024),
14 Bhushan Rajendra Tayade, Ape : 40 yrs.,
iwio. Raiendra Tayade),
Scientist 'C', Central Water and
Power Rese arch § Station,
Pone~ 41 024.
(Rat: C-502, Saipuram,
S.No. 13/10+11, Near Kailash Jeewan Factory,
Dhayari, Pune -- 411 041).
Golak Chandra Sahoo, Age : 46 yrs.,
(S/o. Late Randari Ch haran n Sahoo),
Scientist Wo, Central Water and
Power Res cae earch Station,
Pans 43 nm
:
spoon
at
(Réat: D168, CW PRS, Colony,
Khacdakwasia, Sinhagad Road,
Pune ~411 024),
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16. Badnen Suresh Kumar, Age : 45
iS'o. Badugu Yadagiri),
Scientist 'C', Central Water and
Power Research Station,
Pune ~ 411 024.
(Riat: Flat No. B-d11, Morya Sparsh,
Koihey wad, Pune-Sinhagad Road,
Khadakwaala, Pune ~ 411 024).
iy Advocate Ms. Annie Nadar}.
GA No 2LQOS P21 F
4 OA No PiODO e017?
Versus
i. ae Union of India, through
The Secretary, Ministry of Water
Resources, River Development and
Ganga Repavenation,
Shram Shakti Bhawan, Rafi Marg,
New Defhi~ 110 001,
to
The Director,
Central Water and Power Research Station,
Khadakwasla, Pune -- 24.
tod
The Secratary,
Union Public Service Conmnission,
_Dholpur House, Shahjahan Road,
New Delhi ~ 110069, . Respondents.
(By Advocates Shri R.R. Shetty and Shri VB. Joshi).
Order reserved on 18.09.2019
Order pronounced on 23.01.2020
ORDER
Per: Dr. Bhagwan Sahai, Member (A} Smt. Lata Gupte and 15 other applicants have filed this OA on 23.06.2017, seeking directions to the respondents to promote them as Scientists Grade on being found fit from the dates on which each ofthem completed five vears of residency period as Scientist B under poet oy a Pet pe fe Cs omplementing scheme as interpreted by Tribunals/Hich Courts'Supreme Court and to modify the impugned order dated 23.01 2017 (Annex A-2} by issuing fresh order and refixing their pay ry along with grant of annual increments and other consequential benefits. They also seek cost of this application fram the responulants, GOA No 2 LOOOs 42D TF
2. Summarized facts:
2a}. The applicants have stated that they are Group A employees working with respondent No.2 Le. Central Water and Power Research Station, Khadakwasla, Pune. Their details enclosed as Annex A-3 miemion their educational qualifications as M.E/M.Tech/Ph.D in different engineering disciplines and promotion as Research Officers {Scientist B} from different dates in 2006 and 2007.
2{b). 'The Central Water and Power Research Station, Pune (Engineering and Scientists Group A posts) Recruitment Rules, [982 were amended in 198€ by notification dated 11.08.1988 (Annex A-4). DOPT vide OM dated 16.09.2010 (Annex A-5), introduced modined flexible complementing scheme for Scientisis based on recommendation of VI Central Pay Commission. The applicants claim that they are Scientists and FCS is applicable to them, entitling them for promotion from Scientists Bic Scientists C.
2). Based on further clarifications vide another DOPT OM dated 21.09.2012 (Annex A-6)}, for extending benefit to them under the FCS, they are to be aasesaed by a Competent Assessment Board to be constituted every year on 01% January and O1* July, ifthey have completed five years of residency period on those dates. The Assessment Board then prepares a panel for promotion to the next grade of Scientist C. 2d}. By order dated 30.12.2016 (Annex A-1) they, along with one more person, were promoted to the grade of Soiantists C (Pay band Rs.15,600-39, 160 plas Grads Pay Rs.6600) from that date (10 & ANZ LOOM 2017 of them for panel year for 2012, 1 for panel year 2013 and 6 for panel year 2614). The applicants claim that by the above order, the respondents have denied them promotion to the grade of Scientists C irom the dates when they had completed five years of residency period as Scientists B. 2{e). As per DOPT OM dated 21.09.2012, the Flexible Complementing Scheme (CS) provides for in-situ promotion to the Scientists in higher grade, frresp ective of ava ailabiticy of vacancies, Since many of the Resea arch Officers working with the respondents had been denied their timely promotions under the FCS by promoting them later due to non-convening of meeting of the Assessment Board, different: Scientists working as Chief Research Office Senior Research Officers and Research Officers have filed several OAs before various Ben ofthe Tribunal.
2(f}. This Bench of the Tribunal in OA NoSor7/iees and ather five OAs in its order dated 29.08.2002 CAnnex A-7} observed that Scientists working under the FCS are to get reaniar promotions on completion of five years of residency period without waiting for vacancig cour and not from subsequent dates if the Assessment Board meeting is held late. That order was challenged by the respondents before the Bornbay High Court but their Writ Petition was disrnissed, hi 2(8), Another Scientist had else fled QA No lis of 189 before Principal Beach ef the Tribunal, which was allowed on O1.10, 1999, directing the respondents to promote him retrospectively Se art AARNE spacnnsettg PELE NER AND Op tt oa at OA No. 21G8O4 42017 on completion of five vears of residency period, with consequential benefits. That order of the Principal Bench was also challenged by the respondents in Writ Petition No2456 of 2000 in Delhi High Court which was dismissed on 19.07.2000. Challenge to that High Court order in an SLP filed by the respondents before the Supreme Court was also dismissed. Consequently the respondents have promoted all those Scientists who have approached the different benches of the Tribunal and got orders in their favour. However, it is claimed that ihey have not granted promotion to the present apolicants as Scientists Grade C as per those decisions of the Tribunals/Courts.
2b}. It is further stated that the respondents have not replied to the applicants' representations on this subject and in spite of their representations dated 05.02.2013, some of the applicants who had ceanpleted five years of residency period as Scientist B in 2012 were not called for the Assessment Board Meeting held on 13.02.2015, thereby arbitrarily depriving them of their assessment in the year 2013.
23). As per DOPT OM dated 21.09.2012, the Assessment Board is expected to meet every six months bat the respondents have not been convening its meetings on time. Agerieved of such treatment by the respondents, this OA has been jointly fled by all the sixteen applicants. By order dated 21.07.2017, the Tribunal directed ne respondent No.2 to include names of present applicants (except %, thase at Serial Nos.9, 10 and 16) in the list of candidates to be called 5 OS We 2100041 42017 for agsesament in the meeting of the Assessment Board on
3. Caententions of the parties:
In their OA, arguments on 18.09.2019 and written submissions and summary of judgments submitted by their counsel on 19,12.2019, the applicants have contended that-
3(a). the Assessrment Board is required to be convened by the respondents every year in January and July to consider the eligible Scientists for promotion under the FCS tut the respondents have not been convening meetings of the 2 Assessment Board regularly on time. The Assessment Bosrd meeting for promotion of Scientists B to Scientists C was held on 15.02.2013 but the fist of candidates did not inchide nine of the present applicants who had become eligible for promotion im the year 2012 and had made a representation to the respondent No.3 on 05.02.2013. Thereafter the meeting of the Assesstnent Board was not arranged by the respondent No.4 Hl 2016 resulting in delayed promotion of the applicants by order dated 30.12.2016 and the respondent No.2 is compelling every Sopentist working with the Central Water and Power Research Station, Pune to approach this Tribunal for getting ante-dated his/her promotion;
3(b}. since the meeting of the Assessment Board is required to convened after every six months, three of the applicants (at serial Nas.9, 1) and ti ie. Shri Chikime Srishallam, Shri PVijavaopal an Prasad S$. Kunieer} became eligible even for promotion to Scientists [> Grade in 2017 after completion of four years of iene vinpmpininwin naan ee eaen de bogs csc esas teense ee eseeegnsee ee teeeedete ee oesec eee 9 OA No PLOT?
residency period ag Scientists C, hence they should be considered for promotion by the Assessment Board In its miceting in January/February, 2018 by allowing this OA; 3{e). on the subject of ante-dating af promotions of Scientists on direction of CAT/High Courts, the respondents have relied on DOPT QM dated 03.01.2018 stipulating that the issue in relation to promotion of Selentists under the Ministry of Electronics and Information Technology (MEITY) was examined by the Ministry in consultation with Solicitor General of India in connection with cause filed by Shri Vinay Kumar, Scientist E for ante-datine of his promotion which got delayed im considering the review promotion. However, after considering the DOPT OM dated 03.01.2018 in consultation with DOPT, the Ministry of Electranics and Information Technology has issued order on 12.02, 2019 ante-dating promotions of all concemied Scientists from the dates on which they had completed the eligibility period. Therefore, the present applicants cannot be discriminated against by not granting thern ante- dated promotions to the posts of Scientists C with all consequential benefits from the dates when they had completed the required residency period in the posts of Scientists B; Sid). as per the Apex Court decision in cases of Dx S.R.Marti Vs. Union of India dated 62.05.2011, upholding the order of the High Court which had set aside the order of the Tribunal, thus directing that Shri Murti be sromoted from the date when he became eligible for promotion under the Flexible Complementing Scheme 1Q OA No.2 MGO41 47204 7 Sie). in support of their contentions, the applicanta have relied on the following six case laws:
G). Decision of Mumbai Bench of the Tribunal dated 11.07.1997 in OA No. 992/1993 (RUS. Wadhwa & Ors. Vs. Union of India and athers) allowing the OA, by setting aside the impugned order to the extent of effective date of promotion of the applicants and dire Ing the respondents to grant them promotions with consequential benefits afer completion of five years of service, subject to assessment of fitness irrespective of date of issue of orders. That order of the Tribunal was upheld by the Bombay High Court in Writ Petition No.O483/1997, Gi). Decision of Principal Bench of the Tribunal dated 14.16.1999 in OA No. 71S/199S (Hasan Abdullah and Another Vs. Union of India and Another) directing the respondents to promote the applicants with consequential benefits retrospectively from the dates when they had completed five years at reguiar service as Research Officers. That order of the Principal Bench was upheld by the Delhi High Court sion in Writ Petition No.2436 of 2000. The Apex Court also dismissed Civil Appeals No.g973 and 4974 of 2001 (Union of India and Another Vs, Hasan Abdullah and Another) against the decision of the High Court.
(uO. Decision of Mumbai Bench of the Toiiumal dated 29.08.2002 in OA Nos.870/1998, 932-934 of 1998, SR-89 of 1999 CVLM. Bale and athers Vs. Union of India and Another) holding that the objective of Flexible Complementing Scheme of Scientists is that i OAM 2100s 1a 2017 they get p promot ed at regular intervals on completion of five years of service without waiting for vacancies to occur and not from the prospective dates when the Assessment Board met. Accordingly the Tribanal directed the respondents to promote the applicants therein retrospectively on completion of five years of serviee during 1998 and 1999,
(iv). Decision of Mumbai Bench of the Tribunal dated 18,12 2002 in OA No.268/1999 (S.D.Ranade Vs. Union of India and others) allowing the OA subject to observations made in the batch of GAs (M.M.Kale and others} That decision was confirmed by the Bombay High Court in Writ Petition No.9813 of 2003 relying on the Apex Court decision in case of Union of India Vs. Hasan Abdullah. {vj}. Decision of Mumbai Bench of the Tribunal dated 03.11.2014 in OA No.83/2013 (Prabhat Chandra Vs. Union of India and others} and OA No.84/2013 (De MLR.Bhajantri Vs. Union of India and others) in which the applicants sought ante-dating of their promotions to the pasts of Chiei F Research Officers an completion of five years of service in the feeder cadre. Afler considering various decisions of the Tribunals, High Courts and Apex Court, the OA was liowed directing the respondents to promote the applicants with consequential benefits from the date of occurrence of vacancies 1.2. 01.06.2008 and 05.07.2009, respectively. And (vi}. Principal Bench decision dated 14.01.2004 in OA No.B26/2003 S.AVMurti Vs. Union of India and others) dismissing the OA holdine that the applicant was net entitled for retrospective 2 RB :
12 CRA No. 210A 1201 Fpromotion. However, the Delhi High Court allowed Writ Petition No. 14263 of 2004 directing the respondents to grant Shri S.K. Murthy deemed promotion from 01.01.1999. Challenge to that High Court decision dated 65.10.2010 in SLP No.6864 of 2011 was dismissed by the Apex Court on 02.05.2011 holding that there was no error in the High Court order. The Apex Court also held that 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 of the Tribunal.
In view of the above fects and case laws, the OA should be allowed, In the reply of respondenta Nos.] and 2 and during the argumenta/submissions of their counsel on 18.09.2019 and 19.12.2019, they have contended that -
3(f). the present application flied by the applicants for promot from retrospective dates to Scientists C grade on completion of five Gt years of residency period as Scientists B is hopelessly time-barred and is nat as per the provisions of the Recruitment Rules and other guidelines issued by the Government. It is a totally miscorweived application and not at all tenable, There is absolutely no cause of action for the applicants to file this OA and therefore, it should be dismissed with costs;
3ig). following the Bombay High Court orders and the Apex Court * rders in oases of same other Scientists, several other representations 2 od were also received for grant of promotions from retrospective dates els OA Ne. 21 Vad 4.2017 with consequential benefits but under the FCS, Scientists can be considered for in-situ: promotion to the next grade only after completing requisite regular residency period of service in that grade. The present applicants would be completing four years of regular service as Scientists C only on 29.12.2020 and therefore, before that date they cannot be granted in-situ promotions to Scientist D grade; 3{h). as per the Recruitment Rules of the respondent No.2 (Central Water and Power Research Station), Pune, 1988, as amended from time to time, the Assessment Board has to meet once in a year to consider eligibility of Scientists for promotion as on 01° January of every year, Although the applicants were empanelled against different panel years, they actually assumed charge of the posts of Scientist C only from 30.12.2016. While taking over that charge, neither any of them raised any grievance nor refused to accept the promotions from that dete. Therefore, the contentions of the applicants that they have been denied promotions after completing five years of residency period of Scientists B is not correct,
34). the decision of this Tribunal in six OAs dated 29.08.2002 filed by some Scientists in 1988, 1998 and 1999, were challenged by the respondents in a writ petition before Bombay High Court but on its dismissal, that order of the Tribunal remained restricted only to the applicants in these OAs, and it was not a decision to be applied to others;
3{j}. since the Scientists are considered for promotions by two feoee evels of assesament (Internal Assessment and by the Assessment tern An OA No. 210004 1420 7 ~ Beard}, and if they are not found ft for promotions, granting of promotions to them under PCS hist because of cornpletion of live years of residency period would not arise. Therefore, the contentions of the applicants for granting them ante-dated promotions as Selentiats C and subsequent promotion to Scientists D on completion of four years of residency period cannot be ancepted;
3(k). after considering the maiter carefully in consultation with DOPT, the applicarts have been informed by letter of 01.11.2017 that a oronmimions have te be meuis ¥ effective fram prospective dates after the Commetent Authority has approved them, as per DOPT OM dated = 21.09.2012. Hence no ante-dated promotion can be granted. The applicants could not be assessed earlier for promotians because of non-completion of probation by some of them and other pending litigation. Therefore, only after completion of the probation period, the proposal was sent to the UPSC in April 2014 and June 2015. Thereafter, depending upon availability of external experts and other members, the Assessment Board meeting could be held only on 13° and 14° Aneast, 2015;
3q). dering that period Shri Malik and six others approached this Tribunal te consider them for promotion to Scientists C Grade and based on directions of the Tribunal, the proposed meeting of the ¥ x Assessment Board had to be postponed. Thus the respondents have taken neceasary stepa to hold ueetings af the Assessment Board but dus te certain reasons heyend their control, the meetings got delayed:
OA No. 2LQGo4 4/2017 eet Wi of posts in the grade of Joint Director (Scientist E} and Chief Research Officer (Scientist D} cannot exceed 30% of the total posts of RO, SRO, CRO and Joint Director put together. This means that promotions to all grades from SRO upwards Le. SRO to CRO and CRO to ID are vacancy based. The only exception to this rule is for promotions from Research Officer to Senior Research Officer which are not vacancy based. As per the modified FCS vide OM dated 18.06.2014, FCS is adopted for all these posts. For promotion of Scientist C to Scientist D, the minimum required residency peried is of four years and since the applicants would be completing four years as Scientists C only by 31.12.2020, they cannot be considered earler for promotion as Scientists D;
3(n). the meeting of the Assessment Board for considering Scientists 8 for promotion to Scientists C was held on 13.02.2015 with reference to date of eligibility as on OL.0L.2011 and O1.012012. But the applicants had not conipleted five years of residency period by those dates, hence they were not considered in that meeting:
3{o), responsibilities of Scientist D are much higher than those of Scientists C and are supervisory in nature. Therefore, the present applicants having mot completed the actual residency period of Scientists C do not qualify for consideration for pramotion to Scientists D;
a(n}. Central Water and Power Research Station, Khadaskwasla, Pune has been recognized as Scientific and Technology Department / Organization by OM of Department af Science and Technology, New 16 QA Na 2iOOST4 2017 x 2.1983. Therefore, the applicants are covered under x ws Delhi dated 24.
the Flexible Cornplementing Scheme for their promotions;
3g}. the relief sought by the applicants for promotion as Scientists C fram the dates when they had completed residency period in the erade of Sciertists B iS hopelessly time barred and de fears the sie Recruitment Rules. The present applicants were not party to the earlier GAs in which retrospective promotions had been given by the respondents based on Apex Cet decisions. As the present applicants took charge as Scizs rtists C only from 30.12.2016, they would be completing four years of regular service as Scientists C on 29.12.2020 and. therefore, there is no question of granting them in situ promotion as Scientists D before campletion of their required period as Scientists C;
3(r). the daties of the Scientists D are quite different from the duties of Selentists C. The only relevant issue in the present O.A. is promotion sought by the applicants as Scientists C on completion of five years residency period as Scientists B under the FCS as per interpretation of that scheme by the Tribunal/High Courts' Supreme Court by modifying their promotional order dated 23.01.2017 Meeting of the Assessment Board for promotion of Scientists B to Scientists C was held on 13.02.2013 on the eligibility date OLGL 2011 but the present applicants had net completed the required residency period of the qualifying service of four years to become eligible for arcupetion as Scie C. so they bad not became eligible ket on 01.01.2012 and therefore, their names were not considered. The AT OA Na 2QO08 LY 2087 sroposals could be submitted to the Assessment Board and thereafter ene in consultation with UPSC after meéting of the Assessment Board on 13.02.2013, thelr promotion orders could be approved only alter concurrence of UPSC and approval of the Competent Authority. Thereafter their promotion orders were issued on 23.01.2017; 3{s). as per DOPT OM dated 03.01.2018 regarding an ite-dating of promotions of Scientists on directions of CAT/High Courts, it has heen clearly advised to defend the Court cases in view of the policy in DOPT OM, advice of Solicitor General of India and stand taken by the Ministry of Electronics and Information Technology in the three SLPs. dt has been further mentioned in the DOPT OM dated 03.01.2018 that as per the decision of the Principal Bench of CAT dated 29.05.20i4 in OA No.1926 of 2013 filed by Dr A. Duraiswamy holding that the Apex Court decision in case of Dr. SK .Murti was in personem in respect of ten similarly situated co- applicants and it cannot mean to be extended in rem to Scientists. of all the Scientific Ministries'Departments and as per the DOPT OM dated 10.09.2010 and 21.09.2012, the Competent Authorities are required to ensure that no promotions under FCS (MPCS are granted with retrospective effect;
3(i}. the Ministry of Electronics and Information Technology (MEITY) has filed three SLPs before the Apex Court challenging the High Court orders in case of Union of India Vs. Vinay Kamar and others, Union of India Vs. Santosh Kumar and others, Union of India and others Vs. Iqbal Hasan and the Apex Court in its order CRD oo we A a Sed poe oS Bs.
poo Fe ed aD poe a3 dated 08.07. 2016 has directed in SLP No4153 (Union of India Vs. Vinay Kumar) that the impugned judgement is to remain suspended during pendency of the appeals. In view of this, the DOPT has directed all Scientific Ministries'Departments/Organizations to defend the Court cases on the subject matter as per the laid daw policy of DOPT and advice of Solicitor General of India, and stand taken in the SLPs fled by the Ministry of Electronics and Information Technology and ull final decision of the Apex Court on the issue of antedating of promotion af Scientists becomes eligible, not to issue promotion orders from retrospective effect;
3Qx). as per Section 6 (iv) of New Recruitment Rules of 2014, the effective date of promotions of those officers found fit under the FCS shall be the date of approval of their promotions by the Approving Auuthority and retrospective promotions shall not be admissible in any case 3{v}. ont of the sixteen applicants, only ten had completed the period af probation as Scientists B during year 2008 and thereby became eligible for assessment in 2011 for promotion as Scientists C and could have been considered with reference to the crucial date as 01.01.2012: three of them who completed their probation in 2009, became eligible for assessment for promotion as Scientists C im 2012 and could have been considered with reference to the erucial date a 1 GLOL2613; and rest three of them who completed their probation in 2010 and became eligible for assessment for promotion only in 2012, eould howe bean considered with reference to the crucial date as on als OA No. 2100142017 OL.GL.2014. Therefore, the applicants' contentions that 10 of them should have been promoted for the panel years of 2012, and one should have been promoted for the panel year of 2014 Is not correct In view of these submissions, the OA should be dismissed; 3(w). in reply, respondent No.3 C(UPSC) has submitted that the Union Public Service Commission is an advisory body set up under Article Sad is of the Constitution and is under obligation to ensure that all selections made for regular appointments to services and posts under the Union of India are made strictly in accordance with relevant rules ie. relevant statutory rules and instructions issued by the Government of India from time to time. As per the Central Water and Power Research Station Recruitment Rules, 1982 and 1988, Research Officers (now designated as Scientist B} must have five years of regular service for promotion as Senior Research Officer (Scientist C);
Six}. for the meeting af Assessment Board held on 15.02.2013 for the panel years of 2010 and 2011 for in-situ promotion of Scientists B working with the Central Water and Power Research Station, Pune, the proposal was received by the Commission (UPSC) only on 27.09.2012 and after processing it, the "meeting was held on 12.02.2013 and five officers were recommended for the panel year 204 since none of the anplicants im the OA had completed five 'gars in the feeder grade as on 01.01. 2010 and O1.01.2011, and their mumes were not included In the proposal of the Ministry of Water Resources, River Development and Ganga Rejuvenation, hence there 20 QA No 2YOOS 142017 was to question of considering them for promotions in that meeting:
3ty). for the pane! years 2012, 2015 and 2014, based on the propasal of the Ministry dated 21.10.2016, the meeting of Assessment Board "
was held on 23. 12.20 016 and the applicants were promoted with effect i from 30.12.2016, Subsequently another proposal received from that Ministry was examined and a meeting of the Assessrnent Board for the years 2015 and 2016 was scheduled on 27.07.2017. However, since this Tribunal vide interim order dated 21.07.2017 directed to include names of applicants Nos.9, 10 and 16 in the present OA for *, consideration and to keep result of applicants Nos. to 6 and Li to 15 in a sealed cover HU disposal of the present QA, that meeting of the Board of Assessment had to be pastponed:
3{z), the Commission can hold meetings of DPC and Assessment Board in accordance with the guidelines and instructions of Government of India (DOPT) issued from time to time only after receipt of specific proposals of concerned Ministries and Departments complete in all respects, strictly in accordance with the Recruitrnent Rules/guidelines/instructions of the DOPT, and submission of various essential inputs by the concerned Ministry/Department such as seniority list, eligi ibility Het, ACRs and ertificates of Integrity, vigilance clearance, ete of the feeder cadre officers, With reference io the relief sought by the applicants, the necessary action is required to be taken by the respondents Nas.i and 2 and not by respondent No.3.
eal OA No 2 OOOa T2017 4, Analysis and conclusions:-
d{a). We have carefully considered the comtents of the GA and its amhexes, written submissions and case laws submitted by the applicants counsel on 18.09.2019 and 19.12.2019 as well as arguments on 18.09.2019, reply submitted by the respondents Nos i and 2 on 22.01.2018 and additional affidavit filed on 23.01.2018, reply fled by respondent No.3 on 27.09.2017 and arguments of respondents' counsels on 18.09.2019 and 19.12.2019. We have also perused the case law fled by the respondents and DOPT OMs dated 17.07.2002, 10.09.2010, 21.09.2012 and 03.01.2018. Oa such consideration, the issues involved in the present OA are analyzed as follows:
4ib}. The main issue involved in the present OA is whether the applicants' promotions as Scientists C can be ante-dated from the dates on which they completed five years of service as Sclentisis B, instead of from 30.12.2016 Le. date of the impugned order and whether some of them have become eligible for promotion as Scientists D. 4c). The undisputed. facts in the case are that the applicants' promotions as Scientists C are covered under the Flexible Complementing Scheme. Althcugh the applicants are seeking ante-
dating of their promotions, they have not mentioned any specific dates for such ante-dating. They have also not made any averments regarding the specific stipulations under the Recruitment Rules of 2014 and DOPT OMs, that prohibit ante-dating of promotions under } I fe) } 23 DOA No voo4d 4/2017 the Flexible Complementing Scheme. As per the Ministr ry of Water Resources, the Certral Water and Power Research Station, Pane, Group A posts Recruitment Rules, 2014, (Rule 5) criteria for Zz considering in-aitu promotions and procedure for selection or revie gy under the Flexible Complementing Scheme have been i prescribed.
4{d). As per Rule 5(1), there shall be two levels of assessment, the first level shall be at internal level for screening purposes and next lavel shall be external assessment for selection purpose. For this flupose, consideration for promotion under the FCS shall be done once ine year before O01" January every vegr and those officers who q have completed or shall complete the required period in a particular post during the period of six months upte 31° December of the year preceding the year in which the assessment is to be done and u: rte 30° of Jone in the year in which the said assessment is to be done, shall be considered for promotion to the next higher grade and the crucial date for determining the requisite qualifying pend shall be the D1% January of the year in which the assessment is to be done.
d{e), As per Rule 6(iv), the effective date of promotian of those officers found eligible for promotion under the Flexible Complementing Scheme shall be the date of approval of their promotions by the Approving Authority and retraspective promotions shall not be admissible in any ¢
4). As per the DOPT OM dated 1.092010, based on os OA No JEG 142017 mosifications for Research & Development professionals in all Science and Technology Organizations. The revised FCS was circulated directing all Ministries/Departments to inifate action for review of provisions of the FCS and amendment to relevant Recruitment Rules to bring the scheme in conformity with the decision/guidelines conveyed by that OM.
4{g) As per DOPT OM dated 17.07.2002, on date of elect of promotions under the Fiexible Complementing Scheme, promotions are made effective from prospective date after the Competent Authority has approved them. This is the general principle followed in promotions and this principle is applicable im case of in-situ gromotion under FCS as well, As provided in the rules for Scientific posts, the Assessment Board shall meet at least once in a year to consider the cases for in-situ promotions. The rules for Scientific posts also contain a provision for review of promotions by Selection Committee / Assessment Board twice a year Le. before 01" January and 01" July every year and the Selection Committee / Assessment Board is required to make its recommendation on promotions in view of these crucial dates of 01% January and 01% July. The Competent Authority. which has jo take a final view based on these recommendations shall ensure that no promotion are granted with retrospective effect, 4h}. As per DOPT OM dated 21.09.2012, the instructions in earlier OM dated 17.07.2002 were reiterated and it also invited attention to the DOPT imstractions in OM dated 16.00.2009 which presoribed 24 OA No. 2GOO 14017 time schedule fer preparation of confidential reports by Ministries/Departments: The competent authority shall ensure that fo promotion is granted with retrosvective effect, Para 4 of the DOPT OM dated 21.09.2012 states that under FCS promotion is not effected upon arising of a vacancy, Subject to being found suitable, the Scientists are entitled to be promoted in-sita. The g guidelines, stipulate that assessment norms for promotion under the FCS should oe Tigorous with due emphasis on evaluation of Scientific and 'Technical Knowledge so that only the Scientists having to their credit demonstrable achievements or higher level of technical merit are recommended for promotion. [t was firther emphasized that olving the benefit of promotions from a retrospective date or from the date of completion of residency period without timely assessment as prescribed in the DOPT guidelines will dilute the spirit of FCS instructions on rigorous assessment and would be akin to grarting of Hnencial upgradation as in other such schemes.
4}. A gist of the above stipulations in the Recruitment Rules of 2014 and DOPT OMs is that even under the FCS promotions can be 3 granted ohiy after rigorous assessment oF merit of the concerned Scientists/OMicers and with prior approval of the Competent Authority, the Assessment with reference to the cniclal date of i* January has to be done by the Assessment Board every year and retrospective pramouons cannot be aranted under the Flexible Complementing Scheme also, Be 238 OA No. 2HYOOA IOI? 4(j}. In the present case, the applicants were promoted as Scientists gS C from Scientists B vide order dated 36,12.2 Ps 216 for panel years 2012, 2013 and 2014 but they are seeking ante-dating of their promotions from the dates on which they completed five years of residency period as Scientists B. The respondents contend that the ot cases of applicants could not be placed before the Assessment Board 7 In Hs meeting on 13.02.2013 for assessment with reference to the crucial dates of 01.01.2011] and G1.01.2012 because by that time they had not completed five years of regular service as Scientists B. 4(k). From the details brought on record by the respondents, however, it ig seen that ten of the present applicants had completed their probation during the year 2008, had completed five years of thi ervice as Scientists 8 during the vear 2011 and thus, they became eligible for consideration by the Assessment Board with reference to the crucial date of 01.01.2012. Three of the applicants completed their probation during the year 2009 and five years of service as Scientists B during the year 2012 and became eligible for consideration by the Assessment Board only with reference ia the crucial date of 01.01.2013, However, the remaining three applicants completed their probation during the year 2016 and five years of service ag Scientists B only during the year 2013, thus they became eligible for consideration for promotion only with reference date to the crucial date of OF. OL 2014.
4). From these facts, it is clear that upto 31.12.2011, none of the applicants had become eligible to be considered for promotion. In 38 GA No. 2120/0048 2017 * the meeting of the Assessment Board held on 15.02.2013, ont of the Ga present applicants only 13 would become eligible for consideration to assess them for promotions with reference to the crucial date af OL.OUZO13, ifthe order of completion of thelr probation would have X ogen issued before that date. But the remaining three applicants could have become eligible to be considered by the Assessment Board only with reference to the crucial date of 01.01.2014. Although the applicants were not responsible for this, the resportilents issued the orders of completion of probation of all the applicants only on 06.01.2015, Thus there was delay in issuing those orders. Thereafter, the applicants were rightly considered by the Assessment Board in us meeting on 21.10 20165 when. they were empanelled for promotions and were promoted vide order dated 31.12.2016 from that date when they assumed charge of the posts of Sclantists C. dima}. In the case laws cited by the applicants, the respondents were a directed to promote the applicants therein on completion of five years of regular service as Scientists B subject to fimess in the assessment. The respondents have also cited a decision of the Principal Bench of the Tribunal dated 31.03.2017 dismissing OA No.l 517 of 2014 (S.L.Gupta Vs. Union of India and others).
They have further contended that about antedating of promations of Scientists an directions of CATYHigh Courts, the DOPT OM dated G3.01.2018 has directed that the Ministry of iisctronics and Information Technology had fled three SLPs in the Be 27 OA No.2lOMOS 14/2017 Apex Court challenging the High Court orders (1D No.4155/2016 (Onion 'of India and others Vs. Vinay Kumar}, SLP CC No. 7196/2016 (Union of India and others Vs. Santosh Wadhwa, Scientist FE and others} and SLP CC No.267S7/2016 (Union of India and others Vs. Iqbal Hasan and others). The Apex Court in its order dated 68.07.2016 has directed in SLP No4i55 of 2016 (Union of India Vs. Vinay Kumar) that the impugned judgment shall remain suspended during the pendency of the appeal.
4{n). In that OM the decision of the Principal Bench of the Tribunal dated 29.05.2014 in OA No.i926 of 2013 Aled by Dn A. Duraiswamy has also been mentioned which held that the direction of the Apex Court was in persovem in respect of ten similarly situated co-applicants of Dr. S.K.Murti in OA No.826 of 2003 and cannot be meant to be extended in rer to the Scientiats of all the Scientific Ministries' Departments. In light of these facts, DOPT has advised all Scientific Ministries/Departments/Organizations to defend the Court cases on the subject matter of antedating of promotions of Scientists on the direction of CAT/High Courts in view of the policy laid down by the DOPT in Bs OMs dated 10.09.2010 and 21.09.2012 and as per advice of Solicitor General of Indie (enclosed with the OM dated 03.01.2018) and the stand taken in the SLPs filed by the Ministry of Electronics and Information Technology till the final devision of the Apex Court in this case on ithe issue of antedating of promotions of Scientists.
fea Lees OA We 21004 14/208 F gin}, The applicants' counsel has mention that the Ministry of Electronics and Information Technology (MRBITY) have issued order dated [2.02.2019 ante-dating promotions of concerned Scientists on compiction of eligibility period. However, full facts related to those cases such as applicable Recruitment Rules, eligibility period, ete has not been brought on record. Therefore, it is not clear whether they were identical with the present applicants.
4{p). We note that in DOPT OM dated 16.09.2010, minimum residency periods have been prescribed for assessment of performance of the Scientists by the Assesament Board ~ this is of five years for Scientists B for promotion to Scientists C. But this period is for assessment, it does not mean promotion can take effect on completion of that exact period. Becoming eligible is also not the same as promoted. After becoming eligible for consideration, the assessment process has to be taken up and if found fit in it, promotions can be effected only after approval by the Competent Authority, ° 4(q). From the above discussion, the emerging clear position in this ee hat on completion of exactly five years of service ge th +592 it Scientists B, the applicants could not have been promoted < Scientists C. At the earliest some of them could have become 4 eligible for consideration wiih reference to the crucial date of OL.01, 2013 and others as on G1.01.2014, if orders on completion of their probation had been issued before that time, as mentioned in above paragraphs 4k} above. However, because of issuing of the = t APT ~ 29 OA No.2 WOANSISOTF order on completion of thelr prebation on OG.01.2015, the respondents have placed their applicant's cases before the Assessment Board for assessment only in the meeting on 21.10.2016. Of course, there was delay by the respondents in issuing the orders of completion of probation and they should have issned that. order earlier.
4{r}. However, m view of the above explained unambiguous provisions in the Ministry of Water Resources, the Central Water & Power Research Station, Pune Group A posts Recruitment Rules of 2014, DOPT OMs of 10.09.2010 and 21.09.2012 which have neither been challenged by the applicants nor they have been set aside by any court, and directions in DOPT OM dated 03.01.2018, we find it difficult to accept the contention of the applicants that the Apex Court decision in case of S.K. Murti Vs. Union of India still holds the ground and the benefit of promotion cannot be denied to the applicants based on various DOPT OMs.
4{s}. In the contest of subject matter of the present OA Le. ante- dating of promotions under the Flexible Complementing Scheme, the various case laws relied upen by the applicants have to be understoad only In the perspective of stipulations under the Central Water and o Power Research Station, Pune (Engineering and. Scientists Group A ocal oS posts} Recnatment Rules, 2014 and Polley decisions of the wn Government of India on the Flexible Complementing Scheme. In view of the fact that the order of completion af their probation was issued by the respondents only on 06.01.2015 and as per the 33 OA NG VOos aor?
Recruitment Rules, 2014 applicable to the applicants and policy guidelines issued by the Nodal Ministry ie. DOPT OMs dated 10.09.2010 and 21.09.2012 retrospective promotions cannot be given ven under the Flexible Complementing Scheme.
4. At the time of decisions in OA No.992 of 1993 dated 11.07.1997 (B.S. Wadhwa and Another}, GA No.1 71S of 1995 dated 14.10.1999 (Hasan Abdullah and Another}, OA Nos.970 of 1998 and others dated 29.08.2002 (MLM Rale and Others} and in OA No2O8/1999 dated 18.12.2002 (S.D.Ranade), the policy decisions of the DOPT on the Flexible Complementin ng Scheme ix OM dated 17.07 2002, oes and 21.09.2012 were not available/not considered, At the time of Delhi High Court decision in the Writ Petition of Union of India and Another Vs. S.A Murti dated OS. 10.2010, the DOPT OM dated 10.09.2010 on modified Flexible Complementing Scheme basecl an recornmendations of VI Central Pay Commission and DOPT OM dated 0). 08.2012 regarding date of effect of promotions under Flexible Complementing Scheme and the Recruitment Rules of 2014 were also nat availabie'considered, 4{u). As per the unambigeous stipulations under the Ministry of Central Water and Fower Research Suiion, Pane (Engineering and Scientists Group A. posts) Recruitment Rules, 2014 and DOPT OMs dated 1G.09.2010 and 21.09.2012, retrospective promotians cannot be given even umder the Flexible Complementing Scheme. For %, promotion as Scientists D also, the concerned applicants will be re considered anly afler completing the recuisite residency period as x Scientist C and assessment of their fitness find no merit in this OA, §, Decision:
The OA ts dismissed. No costs.
(Ravinder Kaur) Member (Fadicial krag/H. GA No.2 HOGOS P4207 5 thereafter, Therefore, we (Dr. Bhagwan Sahai) Member (Administrative) *