Central Administrative Tribunal - Delhi
Dr. S K Srivastava vs Union Of India on 5 November, 2014
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.3910/2014 & MA No.3383/2014 Wednesday, this the 5th Day of November, 2014 Honble Mr. G George Paracken, Member (J) Honble Mr. Shekhar Agarwal, Member (A)
1. Dr. S K Srivastava Aged about 54 years, Scientist-G S/o Shri M G Srivastava R/o 327, Satyam, Sector-19 Vasundhara, Ghaziabad-201012.
Posted at:-
Department of Electronics & Information Technology 6, C G O Complex, Lodhi Road New Delhi-110003.
2. Smt. Sunita Verma Aged 45 years, Scientist-F D/o Shri Rajeshwar Rai R/o S-394, 2nd Floor Greater Kailash-I, New Delhi-48 Posted at:-
Department of Electronics & Information Technology 6, C G O Complex, Lodhi Road New Delhi-110003.
3. Shri Pradeep Chopra, Aged 57 years Scientist-G, S/o Shri K L Chopra R/o B-42, Tarang Apartment 19 I P Extension, New Delhi-110092.
Posted at:-
Department of Electronics & Information Technology 6, C G O Complex, Lodhi Road New Delhi-110003.
4. Shri U K Nandwani, Aged 55 years Scientist-G S/o Shri D P Nandwani, R/o 151 Sainik Vihar New Delhi 110034.
Posted at:-
Department of Electronics & Information Technology 6, C G O Complex, Lodhi Road New Delhi-110003.
5. Shri Ramesh Chand, Aged 57 years Scientist-E, S/o late Shri Patram Singh R/o Qtr. No.192, Block-23 Lodhi Colony, New Delhi-110003.
Posted at:-
Department of Electronics & Information Technology 6, C G O Complex, Lodhi Road New Delhi-110003.
6. Ms. Geeta Kathpalia, Aged 53 years Scientist-G, D/o Sh. Ved Prakash Khetarpal R/o C-23, Hudco Place New Delhi-110049.
Posted at:-
Department of Electronics & Information Technology 6, C G O Complex, Lodhi Road New Delhi-110003.
7. Shri A S A Krishnan, Aged 57 years Scientist-G, S/o Shri A Appadurai R/o D-1/90, Vigyan Sadan Chanakyapuri, New Delhi-110021.
Posted at:-
Department of Electronics & Information Technology 6, C G O Complex, Lodhi Road New Delhi-110003.
8. Dr. A S Kamble, Aged 56 years Scientist-G S/o Shri Sudam Kamble, R/o Flat No.A-705 Curzon Road Apartments, K G Marg New Delhi-110001.
Posted at:-
Department of Electronics & Information Technology 6, C G O Complex, Lodhi Road New Delhi-110003.
.Applicants (By Advocate : Ms. Shiwani Mahipal) Versus
1. Union of India, through the Secretary Department of Electronics & Information Technology (Deity) Ministry of Communications & Information Technology Govt. of India, Electronics Niketan 6, CGO Complex, Lodhi Road New Delhi 110003.
2. The Secretary Department of Personnel & Training Ministry of Personnel, Public Grievances & Pensions Govt. of India, North Block New Delhi-110001. .Respondents Order (Oral) Mr. Shekhar Agarwal, M(A):MA No.3383/2014
This MA has been filed under Section 4(5) of the CAT (Procedure) Rules, 1987 for joining together.
2. For the reasons stated therein the same is allowed.OA No.310/2014
3. The applicants have filed this OA seeking the following reliefs:-
(a) direct the respondents to consider and grant the benefit of FCS to the Applicants, with all consequential and financial benefits along with arrears in the subsequent grades as well, and to suitably modify the dates of in situ promotions by antedating the same from the dates when the eligibility period was completed by the respective Applicants in the respective grades as per the details of the Applicants regarding their dates of eligibility to the various Grade, actual date of in situ promotion to the said Grade and the dates w.e.f. it should have been granted, as mentioned in the chart annexed as Annexure A-6 with the OA.
(b) direct the respondents to consider and grant the benefit of FCS to the applicants, with all consequential and financial benefits alongwith the arrears in the subsequent grades as well, and to suitably modify the dates of in situ promotions by antedating the same from the dates when the eligibility period was completed by the respective applicants in the light of the orders of Honble Supreme Court dated 02.05.2011 as passed in S.L.P (Civil) 6864/2011 titled as U.O.I. Vs. S. K. Murti in view of the provisions of Articles 141 and 144 of the Constitution of India and the clarification given by the Ministry of Law;
(c) direct the respondents to seek necessary approval of the Appointment Cabinet Committee (ACC) for making promotion to the grade G (wherever relevant) effective from the due date in the light the orders of Honble Supreme Court dated 02.05.2011 as passed in S.L.P. (Civil)-6864/2011 titled as U.O.I. vs. S.K. Murti in view of the provisions of Articles 141 and 144 of the Constitution of India.
(d) direct the respondents to maintain uniformity in application of minimum residency period in all the grades.
4. Learned counsel for the applicants has submitted that this case is squarely covered by an earlier order of this Tribunal dated 27.09.2013 in OA No.1111/2012 Shri Vinay Kumar v. Secretary, Deptt. of Electronics & Information and Ors. and also by a subsequent order dated 17.07.2014 in OA No.2276/2013 Dr. Rajesh Kapur and Anr. v. UOI and Anr. The order passed in OA No.1111/2012, being a short one, is reproduced as under:-
To Direct the Respondents to preponed the promotions of the applicant from Scientist C to Scientist D from 29.12.2003 to 1.1.2003 and subsequent promotion from Scientist D to Scientist E from 1.6.2010 to 1.1.2007 i.e. the date of his eligibility of his respective promotion for reason mentioned in the OA.
To direct the Respondent to grant the applicant all consequential benefits including arrears of the pay and allowances and service benefits admissible to him.
Any other relief or direction which this Honble Tribunal may deem fit, just and proper in the facts and circumstances of the case and to meet ends of justice.
2. Facts of the case are that applicant has been working with the respondents and was promoted as Scientist-C under the Flexible Complementing Scheme (FCE) on 01.01.1999. He became due for promotion as Scientist-D on 01.01.2003 and thereafter the Scientist-E on 01.01.2007. However, the respondents have promoted him not from the due date but from a date much after the same. The applicant is seeking ante dating of his promotion to Scientist-D as well as Scientist-E. He has sought this relief, mainly, on the ground that Honble Supreme Court in the matter of UOI & Anr. Vs. S.K. Murti on 02.05.2011 had upheld the judgment of the Honble High Court of Delhi in Writ Petition No. 14263/2004 dated 05.10.2010 in which the Honble High Court of Delhi has ruled as follows:-
8. That apart, instant case of promotion is not one where promotion has to be effected upon a vacancy arising. Subject to being found suitable the petitioner was entitled to be promoted in situ. The situation would be akin to granting a selection scale to a person and the date of eligibility would be the date wherefrom the benefit has to be accorded.
9. Under the circumstances we hold in favour of the petitioner and direct that the benefit granted to the petitioner be reckoned with effect from 1.1.1999 instead of 19.9.2000. Arrears would be paid within 12 weeks from today but without any interest.
No costs. The applicant has sought grant of the same benefits to him as have been given to Sh. S.K. Murti vide the aforesaid Court orders.
3. The respondents have filed their reply in which they have not disputed the basic facts regarding eligibility of the applicant for promotion to Scientist-D and Scientist-E from 01.01.2003 and 01.01.2007 respectively. However, they have contended that the promotion under the FCE Scheme as per DoP&T guidelines is to be given only after the Assessment Board has suitably assessed the officer and found him fit and thereafter the recommendations of Assessment Board have been approved by the Competent Authority. They have relied on the DoP&T O.M. No. AB-14017/32/2002-Estt.(RR) dated 17.07.2002, which stipulates as under:-
Promotions are made effective from a prospective date after the competent authority has approved the same. This is the general principal followed in promotions and this principle is applicable in the case in situ promotions under FCS as well. Further, they have stated that when the case of the applicant was referred to DoP&T they advised that the benefit of the judgment in the case of S.K. Murti (supra) have been given only to the applicants of the case therein and have not been extended to others. On this basis, the respondents had rejected the representation of the applicant vide the impugned order dated 09.02.2012.
4. We have heard both sides and have perused the material on record.
5. In our opinion, the case of the applicant is squarely covered by the judgment of the Honble High Court of Delhi as upheld by the Honble Supreme Court in the case of S.K. Murti (supra). The stand taken by the respondents, therefore, is unjustified. Honble Supreme Court in the case of Inderpal Yadav Vs. UOI, 1985(2)SCC 648 have ruled as under:-
Therefore, those who could not come to the court need not be at a comparative disadvantage to those who rushed in here. If they are otherwise similarly situated, they are entitled to similar treatment, if not by anyone else at the hands of this court.
6. Accordingly, we allow this O.A. and direct the respondents to consider granting benefit of promotion to Scientist-D and Scientist-E under the FCE Scheme to the applicant from the due date with all consequential benefits of pay fixation and payment of arrears as directed by Honble Supreme Court in the case of S.K. Murti (supra). This will be done within a period of six weeks from the date of receipt of a certified copy of this order. No costs.
5. Learned counsel for the applicants has also submitted that the aforesaid order has been challenged before the Honble High Court of Delhi vide WP(C) No.2357/2014 and the same was also dismissed by the High court on 30.07.2014. The relevant part of the said judgment is reproduced as under:-
In the above view of the matter, especially having regard to the fact that in S.K. Murti (supra) itself, the Supreme Court had occasion to deal with this contention with respect to the applicability of the Office Memorandum dated 17th July, 2002, we are of the opinion that the Tribunal W.P. (C) 2357/2014 Page 3 cannot be faulted for having directed the grant of relief to the respondent- applicant from the date he became eligible. The writ petition is consequently dismissed as meritless.
6. Shri Rajinder Nischal, learned counsel appeared on behalf of all the respondents on receipt of advance copy of this OA.
7. In view of the submissions made by the learned counsel for the applicants, we dispose of this OA with the direction to the respondents to consider the case of the applicants also in terms of aforesaid orders of this Tribunal as well Honble High Court and pass appropriate orders within a period of one month from the date of receipt of a copy of this order. If the cases of the applicants herein are found to be covered by aforesaid OAs 1111/2012 and 2276/2013, then they will be extended the same benefits as granted to the applicant in those OAs. No costs.
( Shekhar Agarwal) ( G. George Paracken )
Member(A) Member (J)
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