Central Administrative Tribunal - Delhi
Dr. S.N. Sharma vs Union Of India on 18 February, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 247/2010 MA 135/2010 New Delhi this the 18th day of February, 2011 Honble Mr. Justice V.K. Bali, Chairman Honble Mr. L.K.Joshi, Vice Chairman (A) 1. Dr. S.N. Sharma, S/o Late Shri A.Sharma, R/o L-103, Sarojini Nagar, New Delhi-110023 working as A.R.O., with the Respondent No.2. 2. Smt.Beena Anand, w/o Shri Vinod Anand, r/o Quarter No. 663, Sector-IX, R.K. Puram, New Delhi-22 Working as A.R.O, with the respondent No. 2. Applicants (By Advocate Shri R.N.Singh ) VERSUS 1. Union of India, Ministry of Water Resources, Shram-Shakti Bhawan, New Delhi-110001 (Through : The Secretary) 2. Central Soil and Materials Research Station (CSMRS), Olof Palme Marg, Hauz Khas, New Delhi-110016 (Through : The Director) . Respondents (By Advocate Shri Rajesh Katyal ) O R D E R Mr. L.K.Joshi, Vice Chairman (A):
Under challenge in this OA is the order dated 08.09.2009 passed by the first Respondent, Ministry of Water Resources, whereby the representation of the Applicants for extension of Flexible Complementing Scheme (FCS) in Group 'B' posts of Research Assistants (RA) and Assistant Research Officers (ARO) in Central Soil and Materials Research Station (CSMRS), the second Respondent, has been rejected. The Applicants are before us in the third round of litigation. They are seeking directions to the Respondents for grant of FCS from the date when it was given to other scientists under the second Respondent.
2. The relevant facts of the case have been mentioned in necessary detail hereafter. The first and the second Applicant had been working as AROs since 1997 and 1995 respectively. The post of ARO is filled up cent-per-cent by promotion failing which by deputation. The Government had introduced FCS in the scientific organisations after the recommendations of the Third Central Pay Commission (III CPC). This provided for in situ promotion for scientists of certain categories in scientific organisations within the prescribed period from lower grade to the higher grade, subject to the procedure prescribed. By a circular dated 28.05.1986 the FCS was extended to scientists beginning with the grade of Rs.650-1200, where this also serves as a direct recruitment grade. The relevant provision in the aforesaid circular has been extracted below:
2. Flexible complementing providing in situ promotion to scientists whose work is satisfactory has already been introduced in scientific departments. This is, however, at present restricted to the Grades: Rs.700-1300, Rs.1100-1600 and Rs. 1500-2000, with a provision that the total number of posts in the grade of Rs.1500-2000 will be not more than 30% of the total number of posts in the three grades. A limited application of flexible complementing is also permissible to the posts in the scale Rs.1800-2250. Having regard to the fact that in some scientific departments there has been induction of scientists in the scale of Rs.650-1200, it has been decided to introduce flexible complementing beginning with the grade of Rs.650-1200 where this also serves as a direct recruitment grade. It has also been decided to extend the flexible complementing scheme upto the sale of Rs.2500-3000. There will be no restriction as regards percentages and full flexibility will be available in all grades upto Rs.2500-3000; proven merit and records of research will be the only criteria. A minimum residency of 5 years in each grade will be required for promotion under flexible complementing. (emphasis added) It is not disputed that the Applicants were in the pre-revised grade of Rs. 650-1200. However, as mentioned above, it was not the post of direct recruitment as it was to be filled up 100 per cent by promotion. After the recommendation of the Fifth Central Pay Commission (VCPC) another Office Memorandum (OM) dated 09.11.1998 was issued regarding modification of the FCS in the wake of its recommendations. The OM stated inter alia that FCS shall not be applicable where the criteria specified vide this memorandum are not fully met. It also recommended that:
3. The recommendations of the Pay Commission that the existing disparities in the operation of Flexible Complementing Scheme in various scientific and technical departments in the matter of designation of posts, the number of pay scales and the residency period should be removed and there should be uniformity in this regard has been accepted. Accordingly, all the posts covered under the Flexible Complementing Scheme shall carry the following uniform scales of pay, designations and the minimum residency period linked to performance-
Scale of pay Designation Minimum Residency Period linked to Performance. _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ __ _ _ _ _ __ (a) Rs.8000-13500 Scientist B 3 Years (b) Rs.10000-15200 Scientist C 4 Years ) Rs.12000-16500 Scientist D 4 Years (d)Rs.14300-18300 Scientist E 5 Years (e) Rs.16400-20000 Scientist F 5 Years (f) Rs.18400-22400 Scientist G Further:
6. It is requested that all the Ministries/Departments, where the Flexible Complementing Scheme is in operation, may initiate action for review of the provisions of the relevant recruitment rules so that the scheme is brought in conformity with the decisions/guidelines being conveyed vide this Office Memorandum. Results of the review may also be conveyed to the Department of Science & Technology, the nodal department for operation of the Flexible Complementing Scheme. Action for extension of the Flexible Complementing Scheme to other scientific organisations, where the same is not in operation at present, may be taken in accordance with the decision contained in para 5 of this Office Memorandum. It was further recommended in paragraph 51.22 of the recommendations that :
51.22. Modified Flexible Complementing.- Since FCS in its form has resulted in structural distortions and lack of uniformity in application in the identified organisations, we feel that there is need for revision thereof. A separate assured career progression scheme has been separately recommended for all categories. Considering the difficulty of lesser availability of posts at higher levels for scientists doing R & D work, we recommend a modified Flexible Complementing Scheme for R & D professionals at Group A level, in place of the existing scheme. The modified FCS should be made applicable to all eligible R &D professionals who work in fields of creative research activity throughout their service, in all Departments, including Space, Atomic Energy and Defence Research and Development Organisation, without special dispensations for individual departments. Professionals posted to Secretariats of Ministries and Departments, will be excluded from this scheme, and will be subject to the normal assured Career Progression Scheme. Organizations already declared as S & T and approved for FCS, other than the Secretariats Organizations will continue with the FCS in its modified form. FCS will not apply to personnel falling in the existing Groups B, C and D categories for whom the provisions of ACP will apply. (emphasis added) Earlier in 2002, 35 AROs approached this Tribunal in OA number 1964/2002 seeking the implementation of FCS in their case. The Tribunal by its order dated 11.11.2003 directed the respondents therein to consider the representation of the Applicants and decide the issue by passing a speaking order. The applicants were also asked to file a supplementary representation, which was filed on 10.12.2003. The representation was rejected by order dated 09.06.2004, with the following observations:
(i) It is the fact that DSTs OM No.A-42014/2/86-Admn.1(A) dated 28.05.1986 inter alia provide that FCS may be extended to Group B scientists posts, which have pre-revised pay scale of Rs.650-1200 and selection/appointment to which is made by direct recruitment, in consultation with and approval of the modal Ministries namely Department of Science & Technology and Department of Personnel & Training. In this regard it is stated that in May 1986 there were two grades in the cadre of Research Assistant (Group B post) viz. Research Assistant (Sc.) & Research Assistant (Engg.). However, the pay scales of both the grades were then only Rs. 550-900. Moreover, the post of Assistant Research Officer (Group B post) was carrying the pay scale of Rs.650-1200, but the vacancies in this grade were filled by promotion failing which by transfer on deputation. As such, FCS was not extended in Group B posts of CSMRS since it was not applicable to them.
The pay scale of Research Assistant has been revised to Rs.1640-2900 w.e.f. 1.1.86 and to Rs.6500-10500 (equivalent to the pre-revised pay scale of Rs.650-1200) w.e.f. 1.1.96. However, the Government has modified the FCS, vide DOPTs OM No.2/41/97-PIC dated 9.11.98, which envisages commencement of the scheme only from the grade of Rs.8000-13500 and above. The Honble Karnataka High Court in its decision dated 20.8.2003 made in CWP No.3740-44/2003 has also held that Group B scientific posts are not entitled to the benefits of FCS. Following the above order, five AROs and two ROs, including the Applicants herein, filed an OA number 93/2005, R N Sharma and others V. Union of India and Another, challenging the order dated 09.06.2004. In its judgement dated 15.03.2007 this Tribunal directed the respondents therein to refer the matter to the Ministry of Finance and Department of Personnel and Training, which might then consider extending the benefit of FCS to the applicants, if so thought expedient. The Respondents again rejected the representation for extending the benefit of FCS to the grade of RO and ARO, by order dated 22.01.2008, by observing that the matter had been referred to the Department of Personnel and Training and the Department of Science and Technology and the latter had given the following observations:
The Rajan Committee had recommended Merit Based Promotion (not FCS) for Group B and C S&T personnel working in Scientific Departments where Group A scientific posts are covered under FCS. Though the Department of Personnel & Training conveyed their no objection to the implementation of the report in toto without any modifications, the Ministry of Finance, Department of Expenditure has not agreed to its implementation. Accordingly, it has been decided not to pursue the matter further. Meanwhile, the Honourable Andhra Pradesh High Court gave its judgement in Writ Petition number 22349/1999, Union of India and another V. V. Sambasiva Rao and others on 10.09.2008. The respondents in this case were Assistant Chemist (respondent number 1) and Assistant Hydrogeologists in the Central Groundwater Board (CGWB). The Writ Petition had been filed by the appellant against the order dated 19.04.1999 of the Hyderabad Bench of this Tribunal in OA number 1032 of 1996, which had earlier been challenged before the Honourable Supreme Court, which had remanded the petition along with some other petitions to the Honourable High Court. The applicants before the Tribunal (respondents before the High Court) had sought the directions that they should be given the benefit of FCS, as they were in the pre-revised pay scale of Rs.650-1200. The Tribunal directed the Union of India to extend the benefits of FCS to the applicants before it and if necessary, by reviewing the rules in this regard. The High Court considered the following part of the Office Memorandum dated 28.05.1986 issued by the Department of Science and Technology, which has been reproduced below:
2. Flexible Complementing providing in situ promotion to scientists whose work is satisfactory has already been introduced in scientific departments. This is, however, at present restricted to the Grades : Rs.700-1300; Rs.1100-1600 and Rs.1500-2000, with a provision that the total number of posts in the grade of Rs.1500-2000 will not be more than 30% of the total number of posts in the three grades. A limited application of flexible complementing is also permissible to the posts in the scale of Rs.1800-2250. Having regard to the fact that in some scientific departments there has been induction of scientists in the scale of Rs.650-1200, it has been decided to introduce flexible complementing beginning with the grade of Rs.650-1200 where this also serves as a direct recruitment grade. It has also been decided to extend the flexible complementing scheme up to the scale of Rs.2500-3000. There will be no restriction as regards percentages and full flexibility will be available in all grades up to Rs.2500-3000; proven merit and record of research will be the only criteria. A minimum residency of 5 years in each grade will be required for promotion under flexible complementing. (emphasis added) The Honourable High Court considered the fact that the respondents before it were in the scale of Rs.650-1200; that the CGWB had been declared a scientific organisation by the competent authority; all the respondents had been appointed under 1987 rules, which contemplated implementation of FCS for Group 'B' officers in the pre-revised scale of Rs.650-1200; and the Government of India had decided to extend FCS in some of the scientific departments to the scientists in the scale of pay of Rs.650-1200 . The Group 'B' officers in the CGWB had not been included for FCS in 1995 rules. However, the reason for that, as noted in the aforesaid judgement, was as follows:
i) Eventhough the proposal for inclusion of Group `B officers in the different scientific streams in the scale of Rs.2000-3500 in the Flexible Complementing Scheme was under consideration, a decision was taken with the approval of Secretary (NR) to exclude them as inclusion of Group `B would have delay further the whole exercise in view of review of Flexible Complementing Scheme. It was noted in the judgement that the Group 'B' posts were excluded in view of the delay in the review of FCS and not because they were ineligible. The Honourable High Court gave the following directions in this Writ Petition:
15. In the circumstances, the Tribunal ought not to have directed the petitioners to revise 1995 Rules so as to include the benefit of FCS for the Group-B posts. However, having regard to the Presidential Order, which has statutory force, pursuant to which the Department of Science and Technology issued O.M. dated 28-05-1986 and the consequent O.M. dated 09-11-1998, we are of the considered view that the petitioner is under obligation to implement O.M. dated 28-05-1986, as modified by OM 09-11-1998 and take further action to implement the FCS in respect of respondents-applicants. The SLP against the said order was dismissed by the Honourable Supreme Court by order dated 31.08.2009. An OA number 673/1994 had also been filed before the Lucknow Bench of this Tribunal by some Assistant Hydrogeologists of the CGWB for the same cause. The Lucknow Bench directed that CGWB should undertake job analysis of the post of Assistant Hydrogeologist by an expert body and if the expert body recommended that the post was a scientific post, then FCS should be made applicable to them. The Honourable Supreme Court upheld this order of the Tribunal by its judgement dated 10.12.2009 in Civil Appeal number 6486 of 2002. The Applicants in the instant OA made further representation dated 20.01.2009, on the basis of the judgement of the Honourable Andhra Pradesh High Court dated 10.09.2008. It was rejected by the impugned order dated 08.09.2009 by, inter alia, observing that :
The DSTs OM dated 28.5.1986 does not provide for extension of FCS to Group `B posts of Research Assistant and Assistant Research Officer in CSMRS for whom the nodal deptt. for such matter is DOPT. Further, the Guidelines issued by DOPT, vide OM No.2/41/97-PIC dated 9.11.1998 do not provide for extension of the benefits of FCS to Group `B posts in any department. The said OM clearly stipulates that:-
The relevant provisions of Department of Science and Technology Office Memorandum No. A. 42014/2/86-Admn.I(A) dated the 28th May 1986 stand amended to the extent the provisions of this Office Memorandum are at variance with the provisions of the said Office Memorandum. Moreover, both the representationists were not party to OA No. 1032/1996 which was filed by some officers of CGWB in the Hyderabad Bench of the Central Administrative Tribunal.
3. It is in this overview of the facts that the respective arguments have been addressed by the learned counsel for the parties.
4. The learned counsel for the Applicant has relied on the judgement of the Andhra Pradesh High Court, upheld by the Honourable Supreme Court and also the judgement upholding the order of the Lucknow Bench of this Tribunal. It was argued that the Respondents have no option but to comply with the directions given by the Courts and they could not have rejected the representation merely on the ground that the Applicants were not parties in the cases before the Tribunal, High Court and the Supreme Court. It was contended that the CSMRS, the second Respondent, was a scientific organisation and the Applicants were engaged in the work of scientific research and were occupying scientific posts. They were in the pre-revised scale of Rs. 650-1200 and as per the OM dated 28.05.1986 were eligible for FCS. It was contended that the first Respondent had admitted the aforesaid contention in its letter dated 16.03.2010 addressed to the second Respondent, Annex R-16, whereby grade pay of Rs.5400 in the Pay Band -2 was approved for the AROs. It was, inter alia, mentioned in the said letter that:
2. In view of the fact that prior to 1.1.2006, the post of Assistant Research Officer in CSMRS, New Delhi was at par with Group `B scientific posts operated in CGWB i.e. Assistant Hydrologist, Assistant Hydrogeologist, Assistant Chemist and Assistant Hydrometeorologist; Department of Expenditure, Ministry of Finance has agreed to the proposal to grant grade pay of Rs. 5400 in the pay band PB-2 on Non-Functional basis after completion of 4 years of regular service in the grade pay of Rs.4800 in the pay band PB-2 to Assistant Research Officer of CSMRS, New Delhi w.e.f. 1.1.2006. It was further argued that the representation of the Applicants was, inter alia, rejected by order dated 09.06.2004 on the ground that the judgements of the Andhra Pradesh High Court and of the Lucknow Bench of this Tribunal were pending before the Honourable Supreme Court and, therefore, once these cases were decided in favour of the Applicants, the Respondents could not advance any other argument to block their inclusion under the FCS. The Respondents are precluded from making any other submission. Reliance has been placed on Mohinder Singh Gill and Another V. the Chief Election Commissioner, New Delhi, AIR 1978 SC 851 to contend that they could not go beyond their order dated 09.06.2004 and supplement it by other reasons in their affidavits. The learned counsel also submitted that the Respondents did not amend the recruitment rules for the ROs and AROs, in spite of the directions contained in the OM of 09.11.1998, already reproduced above. The Respondents thus failed to safeguard the interests of the Applicants, contended the learned counsel.
5. The Respondents have contested the Applicants arguments by stating, at the outset, that the judgements of the Honourable Andhra Pradesh High Court dated 10.09.2008 and the judgement of the Lucknow Bench of this Tribunal, already adverted to above, were not about the scientists of the Respondent-CSMRS but concerned Assistant Chemist and Assistant Geohydrologists of the CGWB. It was argued that the conditions for grant of FCS to the scientists Group B envisaged that they should be in the pre-revised scale of Rs. 650-1200 and that such grade should be the entry grade in that cadre. It was argued that the Applicants were indeed in the pre-revised grade of Rs. 650-1200 but were not in the entry grade. Their posts were to be filled up cent-per-cent by promotion. The posts, on the other hand, in the CGWB, which were considered by the Honourable Andhra Pradesh High Court, were in the entry grade. It was contended that the reliance of the Applicants on the judgement of the Andhra Pradesh High Court was misplaced because the conditions of service and the recruitment rules for the officers of the CGWB and the CSMRS were different and grant of FCS to the former would not automatically make the latter eligible for the same. It was also pointed out that the High Court had clearly stated that Group 'B' officers had been granted FCS in some of the organisations. The ROs in the CSMRS are either appointed through direct entry or by promotion from feeder cadre and are in the grade of Rs.550-900, which is less than Rs.650-1200. The AROs are in the scale of Rs.650-1200, but these are not direct entry grade posts. Thus the Applicants did not fulfil the conditions for grant of FCS. It was further contended that an expert committee had recommended Merit Based promotion for them, which was not accepted by the Ministry of Finance, as mentioned in the order dated 22.01.2008, adverted to above. It was also argued that the VCPC did not recommend FCS for Group 'B' and lower grade officers. Instead the VCPC recommended in paragraph 51.22 that ACP Scheme would apply to them. The paragraph has been reproduced above. The learned counsel for the Respondents would further point out that the FCS had not been recommended for the AROs, who had been put in PB-2 (Rs.9300-34800 and Grade Pay Rs.4800) and ROs, who had been put in PB-2 with Grade Pay of Rs.4600. FCS was made applicable to Scientist B in PB-3 (Rs.15600-39100 and Grade Pay Rs.5400). He would contend that thus the Applicants were not eligible for FCS after the fourth, fifth and sixth Central Pay Commissions.
6. We have given our utmost consideration to the rival contentions and have carefully perused the record placed before us. The learned counsel for the parties had also submitted their written submissions, which have also been perused.
7. The crux of the matter is that the grant of FCS depends on the recruitment rules of a particular post. The critical requirements were being in the scale of pay of (pre-revised) Rs.650-1200, which should also be the entry grade for the post. The Applicants met the requirement of the scale of pay, but did not meet the requirement of their posts being in the entry grade. The posts are filled up 100 per cent by promotion. In this respect their case was distinguishable from the case of the Assistant Chemists and Assistant Hydrogeologists of the CGWB. It is for this reason that the judgement of the Lucknow Bench of this Tribunal and the judgement of the Honourable Andhra Pradesh High Court would not apply in the case of the Applicants. The expert committee also did not favour the grant of FCS to the Applicants and instead suggested Merit-Based promotion, which was not acceptable to the Ministry of Finance. The V and VI CPCs also did not recommend grant of FCS to the ROs and AROs of the CSMRS. Taking all these aspects into account, the Tribunal cannot interfere in this matter as it pertains to the domain of policy, which is the exclusive preserve of the executive. In Mallikarjuna Rao and others V. State of AP, AIR 1990 SC 1251, it has been held that:
"It is neither legal nor proper for the High Courts or the Administrative Tribunal to issue directions or advisory sermons to the executive in respect of sphere which is exclusively the domain of the executive under the Constitution."
In Tata Cellular V. Union of India, JT 1994 (4) SC 532 it was held that:
113. The principles deducible from the above are :
(1) The modern trend points to judicial restraint in administrative action.
(2) The Court does not sit as a court of appeal but merely reviews the manner in which the decision was made.
(3) The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.
xxxx xxxx xxxx xxxx (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.
8. We are also not in agreement with the Applicants that once the representation has been rejected on the ground that the matter is pending before the Supreme Court and once the Supreme Court has given favourable decision to the Applicants, the Respondents are bound to accept the pleas of the Applicants and cannot go beyond this contention in their order. Mohinder Singh Gill (supra) was invoked. Reference has been made to the order dated 09.06.2004, in which, inter alia, it has been stated:
(iv) The order passed by CAT, Lucknow Bench in O.A. 673/94 has stayed by Supreme Court and is still under their adjudication. The Karnataka High Court in CWP 3740-44/2003 dated 20.8.2003 has also set aside all the decisions of CAT in respect of granting FCS to Group `B officers stating that the OM dated 28.5.86 cannot be relied upon for claiming any relief unless the Rules governing the recruitment in the organization are amended, incorporating the provision of the policy contained in the said memorandum. The argument is totally misplaced. The order dated 0.06.2004 is a detailed order and the rejection of the Applicants pleas is based on the consistent stand of the Respondents that the post of ARO is not the entry grade and the post of RO does not have the prescribed scale of Rs.650-1200 (pre-revised). That the order of the Lucknow Bench had been stayed was a matter of fact. That judgement, in any case, was not relevant because it concerns the scientists of CGWB. Moreover, the order dated 09.06.2004 is not under challenge before us. It was also not necessary to amend the recruitment rules for ROs and AROs in the limited context of FCS, because FCS was not applicable to them.
9. Considering the above analysis we are of the considered opinion that the Respondents have taken a conscious decision not to grant FCS to the Applicants and being a policy matter, the Tribunal ought not to interfere with this. The OA is dismissed. No costs.
( L.K. Joshi ) ( V.K. Bali ) Vice Chairman (A) Chairman /dkm/