Central Administrative Tribunal - Delhi
Ms. Mahua Bannerjee vs National Technical Research ... on 15 March, 2013
Central Administrative Tribunal
Principal Bench
OA No.2142/2011
M.A. No. 1621/2011
With
OA No.578/2012
New Delhi this the 15th day of March, 2013
HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. SHEKHAR AGARWAL, MEMBER (A)
OA No.2142/2011
P.Kulshrestha S/o Late Shri R.P.Kulshrestha
R/o House No. M-2774, D-2, Netaji Nagar,
New Delhi-110023.
Anil Chandla S/o Shri R.S. Chandla,
R/o House No. 1210, sector 12, R.K.Puram,
New Delhi-110022.
Arun Kumar S/o Shri Jagan Nath Sharma
R/o K-5/2 (MS Flats) Sector-13, R.K.Puram,
New Delhi-110066.
Lokesh Garg S/o Shri M.C.Garg
R/o House No. 16-A, Pocket-A,
Vikaspuri Extension,
New Delhi.
Arvind Shukla
S/o Shri Ram Nath Shukla
R/o SB-301, Block-8,
Transit Flats, HUDCO Place,
New Delhi-110049.
Ms. Ritu Goel D/o Shri Vimal Kumar Goel
R/o D-3, Officers Quarters, CMS Complex,
NTRO, Near S.S.B., 25th Btn, Aya Nagar,
New Delhi-110047.
7. Ashish Kumar Gupta
S/o Shri Surender Kumar Gupta,
C-2, NTRO Scientist Hostel,
25, SSB Btn, MG Road,
Aya Nagar,
New Delhi-110047.
Bijyendra Singh S/o Late Shri Maharaj Singh
E-4, NTRO Scientist Hostel, 25, SSB Btn.
MG Road, Aya Nagar,
New Delhi-110047.
Anshuman Bhattacharya,
S/o Shri Tapan Bhattacharya
Qtr No. 302, NTRO Campus,
Kodki Road, Near BSF SHQ
PO Box No. 58,
Bhuj, Kuchch,
Gujarat-370001.
Anand Prakash Singh
S/o Raj Mani Singh,
E-5, NTRO, Scientist Hostel, 25, SSB Btn,
MG Road, Aya Nagar,
New Delhi-110047.
D. Shankar Rao
S/o D.Sampat Rao
D-4, Scientist Hostel, 25,
SSB, Btn., MG Road,
Aya Nagar,
New Delhi-110047.
Suman Balhwan
D/o Shri Maharam Yadav
A-8, Officers Quarters,
Aya Nagar, New Delhi.
Patel Jitendra Kumar
C. S/o Shri Chatur Bhai
C/o M.L.Dagar, Gali No.1, Ashok Vihar,
Railway Road,
Gurgaon-122001.
J. Balachander S/o R.Jagadeesan
201, F-128/1B, Mahammadpur, R.K.Puram,
New Delhi-110066.
Venkata Rao Ganta S/o Lokandham
R/o Kawal Singh, Room No.110, House No. 251/A,
Munirka, New Delhi-110067.
Dhananraj Srivastava S/o S.K.Srivastava
R/o H-5, NTRO Accommodation, SSB Campus,
Aya Nagar, M.G.Road, Delhi-110047.
Mohit Saggar S/o (late) Shri P.K.Saggar,
Block-20, House No.7, Lodhi Colony,
New Delhi-110003.
Narender Bansal S/o Shri K.S. Bansal
F-5, NTRO Scientist Accommodation,
Near 25th Btn. SSB Complex, M.G.Road,
Aya Nagar,
New Delhi-110047.
Sachin Kumar S/o Shri Ram Kumar
A-7, Officers Quarters, CMS Complex,
NTRO, Near SSB 25th Btn, Aya Nagar,
New Delhi-110047.
Aniruddha Kumar S/o Shri Haracharan Lodhi
Quarter No.B-7, NTRO, Behind 25th SSB,
Aya Nagar, New Delhi-110047 .
T. Sriramulu S/o Late Shri T.Narasimha Rao
A-6, NTRO, Officers Hostel, Behind 25th SSB Compus, M.G.Road,
Aya Nagar, New Delhi-110047.
Rajeev Dandotia S/o Shri K.S.Dandotiya
E-6, NTRO Officers Hostel,
Behind 25th SSB Btn,
M G Road, Aya Nagar,
New Delhi -110047
Note Single Vakalatnama signed by
Ashok K.Gupta S/o Shri O.P.Gupta
R/o SB-303, Block-9 A, Transit Flats,
HUDCO Place.
N.Mariappan S/o A.Natarajan R/o SB-203,
Block-9B, Hudco Place Extn. Andrews Ganj,
New Delhi-110049.
D. Ramesh Babhu S/o Shri G. Balasubramanian
R/o 305, C-32, BR Complex, Opp to Una Enclave,
Mayur Vihar Phase-I,
New Delhi-110091.
D.Sasikumar son of Shri K. Deendhayalan
R/o Flat SB-201, Block-1A,
Hudco Place, Andrews Ganj Extension,
New Delhi-110091.
Kapil Kumar S/o Shri Rakesh Kumar Agrawal
R/o SB-101, Block-15-C, Hudco Place Extension,
New Delhi-110049.
Niraj Vishnoi S/o G.P.Vishnoi
R/o 63-A, Nayak Nagar, Sitapur Road,
Lucknow.
Chaitanya Kumar Bag S/o Hrushikesh Bag
R/o Plot No.5, Panchvati Colony, Centre Point,
Secunderabad-500009.
D.Ravi Kumar S/o D.Bala Swamy
R/o H.No. 49-376/2, Bal Reddy Nagar,
Chintal, Hyderbad.
Parmeshwari Mukherjee D/o Shri S.K.Mukherjee
R/o Palmwood Estate, Sector-21-D, Flat No.701,
Faridabad.
Navdeep Pal Singh S/o Shri Shiv Charan Singh
R/o D-2, NTRO , Scientist Hostel, Near SSB Butani,
M.G.Road, New Delhi-110047.
Prakash Patel s/o Shri Bajrang Prasad Patel
R/o D-5, Scientist Hostel, NTRO Campus,
near SSB 25th Battalion Ghitorani,
M.G.Road, New Delh-110047.
Sumit Kumar Gupta
S/o Shri Rameshwar Prasad Gupta
C/o R K Traders, Plot in Kh. No. 302
Min S/F Oppt.
Mehta Farms, 100 Foota Road Ghitorni,
M.G.Road, New Delhi-110030.
Arvind Kumar Garg S/o Shri B S Garg
F-4, Scientist Hostel, NTRO campus, near SSB Ghitorni,
M G Road, New Delhi-110047.
Ms. Preeti Gupta D/o Shri Shyam Lal Gupta
T-823-B, 1st floor Arjun Nagar, Kotla Mubarakpur,
New Delhi-110003.
OA NO. 578/2012
Ms. Mahua Bannerjee
W/o Shri ARijit Banerjee
R/o House No.SB-201
Block- 15-A (Transit Flats),
Hudco, New Delhi. Applicant
(By Advocate: Shri B.B. Bhatia, Shri Navjot Kumar and Shri Akshay Bhatia)
Versus
National Technical Research Organization
Through Chairman
Block-III, Old Campus,
New Delhi-110067. ..Respondents
(By Advocate: Shri Krishan Kumar)
O R D E R (ORAL)
Sh. G. George Paracken, Member (J):
Both these Original Applications are identical and, therefore, they are disposed of by this common order.
2. Applicants are beneficiaries of the Flexible Complementing Scheme (FCS for short) issued by the Government of India vide Office Memorandum No.2/41/97-PIC dated 09.11.1998. According to the said Scheme, the process to award promotion to the next higher grade is required to be completed prior to the completion of three years and four years in the scales of pay of Rs.15,600-39100 + Grade Pay Rs.5400/- and Rs.15600-39100 + Grade Pay Rs.7600/-. Further, according to the said Memorandum, the assessment by the duly constituted Assessment Board under the Chairmanship of the concerned Department by the Government of India based on the minimum residency of period linked to the performance for in situ promotion to the higher grade of Scientists. Thereafter, the Assessment Board will make recommendations to the competent authority, for award of promotion to the grade of Scientist B to C in the scale of Rs.15,600-39100 + Grade Pay Rs.5400/-, Scientist C to D in the scale of Rs.15600-39100 + Grade Pay Rs.7600/- and Scientist D to E in the scale of Rs.37400-67000 + Grade Pay Rs.8700/- from the date of completion of residency periods. The due provisions exist for the effective date of promotion to the next higher grade either w.e.f. 1st January or Ist July, 2009 of every calendar year based on recommendation of the Assessment Board. However, the Respondents did not complete the said process prior to the due date of promotion of the Applicants. Thus, there occurred delay in awarding promotion to the Applicants from the due dates.
3. The Applicants have filed both these Original Applications seeking a direction to the respondents to ante-date the award of promotion to them as per their respective dates of eligibility and also to grant financial benefits from the due dates.
4. Respondents have filed their reply. They have opposed the reliefs sought by the Applicants and held that their promotions will be from the prospective dates and, therefore, no consequential benefits are permissible.
5. During the course of arguments, learned counsel for the Applicants has produced a copy of the order of the Supreme Court of India in Special Leave to Appeal (Civil) [CC 6864/2011] decided on 02.05.2011 Union of India and Another Vs. S.K. Murti. The said SLP has arisen out of Writ Petition No.14263/2004 decided on 05.10.2010 which in turn has arisen out of OA No.826/2003 Dr. S.K. Murthi and Others Vs. U.O.I. & Another decided on 03.12.2003.
6. This Tribunal disposed of said OA holding that Applicants were entitled for notional promotion from the date of being declared successful by the Departmental Review Committee/Screening Committee. However, the High Court, vide its order dated 05.10.2010, noted that both the parties have relied upon the Office Memorandum dated 17.07.2002 which reads as under:-
The recommendations made by the Fifth Central Pay Commission for modifying the Flexible Complementing Scheme (FCS) in operation in scientific and technological departments for in situ promotion of scientific technical personnel with a view to removing the shortcomings/inadequacies in the scheme had been examined some time back and this Department in O.M. No.2/41/97-PIC dated 9.11.1998 had issued detailed guidelines modifying the then existing FCS. From a number of references received in this Department, it appears that an element of confusion exists in some scientific departments on the date from which in situ promotions under FCS are to be given effect. Promotions are made effective from a prospective date after the competent authority has approved the same. This is the general principle followed in promotions and this principle is applicable in the case of in situ promotions under FCS as well.
2. As a matter of fact, no occasion requiring application of promotion with retrospective effect should arise in FCS cases, as it is provided in the rules for scientific posts that the Assessment Boards shall meet at least once a year to consider cases of in situ promotions. Rules notified for scientific posts also contain a provision for review of promotion by the Selection Committee/Assessment Board twice a year ? before 1st January and 1st July of every year- and the Selection Committee/Assessment Board is required to make its recommendation on promotions keeping in view these crucial dates of 1st January and 1st July. The competent authority, which has to take a final view based on these recommendations, shall ensure that no promotion is granted with retrospective effect.
7. The High Court allowing Writ Petition held that the aforesaid Memorandum requires that FCS in situ promotions to be effected each year and for which the circular mandates that the same should be made well in advance keeping in view the crucial dates being Ist January and Ist July with effect wherefrom the Flexible Complementing Scheme in situ promotions have to be effected. Accordingly, the High Court have held in favour of the petitioners and directed that the benefits granted to them should be reckoned with effect from 01.01.1999 instead of 19.09.2000. Arrears also to be paid within 12 weeks. The aforesaid judgment of the High Court was challenged by the Union of India in SLP (Civil) (supra) but the Apex Court upheld the orders of the High Court and held as under:-
We have heard Smt. Indira Sawhney, learned counsel for the petitioners and Mr. Jitendra Mohan Sharma, learned counsel for the respondent, who has entered on caveat and carefully perused the record.
The respondent, who was working as Scientist Grade-D in the Botanical Survey of India became eligible for promotion under FCS with effect from 1.1.1999. However, on account of delayed convening of the Departmental Review Committee/Selection Committee, his promotion was delayed and by an order dated 20.10.2000, he was promoted with effect from 19.9.2000.
The respondent and 10 other Scientists of Botanical Survey of India filed Original Application No. 826/203 for directing the petitioners to promote them with effect from the date of eligibility, i.e. 1.1.1999. The Tribunal dismissed the original application and held that in view of the clarification given in O.M. Dated 10.11.1998, the applicants were not entitled to promotion with retrospective effect.
The review petition filed by the respondent was dismissed by the Tribunal vide order dated 14.1.2004. However, Writ Petition (C) No.14263/2004 filed by the respondent was allowed by the Division Bench of the High Court and the petitioners were directed to give him all the benefits on the basis of deemed promotion with effect from 1.1.1999.
In our view, reasons assigned by the High Court for directing the petitioners to promote the respondent with effect from the date of acquiring the eligibility are legally correct and the impugned order does not suffer from any legal error warranting interference under Article 136 of the Constitution.
It is not in dispute that vacancies existed when the Departmental Review Committee considered the case of the respondent and other similarly situated persons for promotion. It is also not in dispute that in terms of paragraph 51.25 of the Vth Pay Commission Recommendations, the Departmental Review Committee/Assessment Board was required to meet every six months, i.e. in January and July and the promotions were to be made effective from the date of eligibility. Therefore, it is not possible to find any flaw in the direction given by the High Court.
The special leave petition is accordingly dismissed.
8. We have heard the learned counsel for the Applicants, S/Shri B.B. Bhatia, Navjot Kumar and Ajay Bhatia and the learned counsel for the Respondents, Shri Krishan Kumar.
9. Undisputedly, the case of the Applicants are squarely covered by the aforesaid orders of the Honble High Court in Writ Petition (C ) No.14263/2004 (supra) and the Apex Court in SLP (Civil) 13133/2011 (supra). We, therefore, allow these Original Applications. Consequently, we direct the Respondents to award the promotion to the Applicants from the due dates as per their respective eligibility and to antedate the award of promotion to them with all financial benefits. Respondents shall also pass appropriate orders within a period of 2 months from the date of receipt of a copy of this order. Within the said period, they shall also pay said arrears arising out of antedating of such dates of promotion. There shall be no order as to costs.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
Rakesh