Central Administrative Tribunal - Delhi
Hon Ble Mr. Justice Syed Rafat Alam vs Union Of India Through on 24 September, 2013
Central Administrative Tribunal Principal Bench OA No.4231/2011 & OA No.4560/2011 Reserved on: 22.04.2013 Pronounced on:24.09.2013 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. Birendra Kumar Sinha, Member (A) Sunil Alag s/o late Sh. Inder Sain Alag R/o Sector B, Pocket-1, Flt No. 1137 A, Vasant Kunj, Delhi 110 070. Applicant (By Advocate: Shri Arun Bhardwaj) Versus Union of India through 1. Secretary, Deptt. of Personnel & Training (DoPT) Ministry of Personnel, Public Grievances & Pensions, New Delhi. 2. Secretary, Department of Information Technology (DIT) Ministry of Communications and IT Electronics Niketan, 6, CGO Complex, New Delhi- 110 003. Respondents (By Advocate: Shri R.N. Singh) O R D E R By Dr. Birendra Kumar Sinha, Member (A):
Though these two cases bearing OA Nos. 4231/2011 and 4560/2011 have been filed by one person namely Sunil Alag at different points of time but have been heard and being decided together as they relate to a similar set of relief(s). OA No. 4231/2011 challenges the impugned decision of the Appointment Committee of the Cabinet (hereinafter referred to as ACC) as communicated vide letter dated 08.04.2009 while the OA No. 4560/2011 has challenged the order of the ACC dated 15.11.2011 whereby four officers namely R.C. Meharde, A.S.A. Krishnan, U.K. Nandwani and Dr. (Mrs.) Nilofur N. Shroff were promoted from the grade of Scientist F to the grade of Scientist G under Flexible Complementing Scheme (hereinafter referred to as FCS) in the pay scale of Rs.37400-67000/- + GP Rs. 10,000/- w.e.f. 14.11.2011.
2. In terms of relief(s) in the Oa No. 4231/2011, the applicant has sought the following items of relief(s):-
Quash and set aside the impugned order dated 8-4-2009 denying the promotion to the applicant as Scientist G w.e.f. 1.1.2007;
Direct the respondents that the applicant meets all requirements of FCS including requisite field experience, innovative & creative work etc. for promotion to Scientist G;
Direct the respondents to consider & promote the applicant as Scientist G with effect from 1.1.2007 with all consequential benefits by protecting his seniority;
All consequential benefits may be granted to the applicant;
Any other relief, which this Honble Tribunal may deem fit and proper in the circumstances of the case, may also be passed in favour of the applicant;
Cost of the proceedings be awarded in favour of the applicant and against the respondents.
The relief(s) sought for in the OA No.4560/2011 are more or less the same as in OA No. 4231/2011 but for challenge of order dated 15.11.2011 vide which he has been denied promotion as Scientist G w.e.f. 1.1.2009.
3. The case of the applicant, in brief, is that he is a Grade F Scientist under the Department of Information & Technology (hereinafter referred to as DIT) since January, 2001 in the pay scale of Rs. 16400-450-20000/-. On 21.11.2005, DoP&T constituted two Committees namely High Level Peer Review Committee (hereinafter referred to as HLPRC) to advice the Government on the cases referred to it by the Cabinet Secretariat or by the approval of the competent authority and/or such policy matters as are relevant to the FCS Scheme; and Departmental Peer Review Committee (hereinafter referred to as DPRC) for reviewing the suitability of promotion to the grade of Scientist F/Scientist G in additional to the normal FCS process involving Screening and Selection Committees. The promotion of Scientist F to Scientist G is a two stage process which starts with the Screening by the Screening Committee and interview by the Selection Committee. The FCS was introduced vide OM dated 09.11.1998 for Scientists in various Scientific departments on the basis of recommendations of the 5th Central Pay Commission. It was only applicable to scientists and technologists holding scientific posts under scientific and technology departments engaged in scientific activities and services. It also provided rigorous norms of evaluation of scientific and technical knowledge so that only the scientists with demonstrable achievements to their credits could get promoted under the FCS. In accordance with this Scheme put in place yardstick for evaluation depending upon the number of years in the grade as provided under Annexure-II of the Scheme. Schedule-II of the Scheme further provided a field experience of five years for promotion to Scientist G grade. However, the power of relaxation had been left with the Committee itself.
4. The case of the applicant is that he was due for promotion to Scientist Grade-G and his name was accordingly recommended by the Department under the approval from the Minister. However, the case of the applicant was rejected vide the impugned order dated 18.04.2009 merely intimating that the ACC has not approved the proposal for promotion of two officers including the applicant to Scientist Grade-G. The applicant was not called for successive selection in the years 2009 and 2010 for the post of Scientist Grade-G. The Scientists considered for promotion on 26.06.2009 were promoted as Scientists Grade-G vide order dated 10.12.2010. On 30.09.2010, the respondent no.1 wrote to the respondent no.2 to submit all pending cases of promotion from Scientists Grade-F to Scientists Grade-G under FCS along with those who would become eligible for upgradation prior to 31.12.2010. The respondent no.2 accordingly submitted all eligible pending cases of promotion relating to the years 2008, 2009 (June), 2009 (December of applicant) but did not forward not approved case of the applicant for the year 2007. The applicant made a representation on 22.11.2010 against this and his case was referred to Civil Services Board (CSB) which recommended that promotion cases of all Scientists scrutinized and recommended by the DPRC be placed before the ACC. It is the claim of the applicant that the impugned order dated 08.04.2009 had never been communicated to him and he could not only learn of it from one of his colleagues and under RTI Act. He has filed OA No.4279/2010 on 17.12.2010 and a Review Application No. 108/2011 in the aforesaid OA wherein the Tribunal directed the respondents to obtain decision of the ACC within a period of three months in respect of the applicant. On 22.09.2011, the applicant filed Contempt Petition for compliance of the afore order of the Tribunal, wherein the reply was filed by the respondents stating that the matter was processed by the Administrative Ministry and submitted to the Nodal Department for obtaining the approval of the ACC as per the directions of this Honble Tribunal. Accordingly, he matter was placed before the ACC and as per the directions of the ACC, it was submitted to the Central Services Board which considered it in its meeting held on 23.05.2011.
5. On 15.11.2011, the case of the applicant was rejected by the ACC whereas four Scientists were promoted to the ranks of Scientists Grade-G vide communication dated 15.11.2011. The same communication specifically mentions the ACC has not approved the promotion of Shri Sunil Alag, Scientists-F.
6. The applicant inter alia, has adopted the following grounds in support of the OAs:-
The impugned order dated 08.04.2009 in OA No.4231/2011 did not recite any reason for rejection. The applicant has referred to paragraph 4.18 of the counter reply wherein the respondents have stated that it was felt that the applicant was mainly engaged in application of scientific techniques, without directly contributing towards R&D activities is absolutely incorrect and that he has the field experience in R&D. The applicant, on the other hand, has implemented projects directly linked to R&D thereby making him eligible for promotion under FCS.
The case of the applicant has been recommended by the DPRC which has eminent Scientists whereas the ACC has no technical experts. Therefore, it is not fair on its part to overrule the conclusion of the highest experts in the country.
The ACC has allowed promotion to the applicant in the years 2004, 2005 and 2006 and then again in 2008 using the criteria as per the FCS. It cannot now take a different stand when the work of the applicant for the period from 2001 to 2006 was found excellent and earned recommendation for promotion as Scientist Grade-G on the basis of which the Experts had made their recommendations. However, while others have been promoted on this basis, the applicant has been singled out thereby meeting differential treatment to the applicant. The applicant argued that he is fit for promotion using the same criteria which has been used in the preceding years i.e. 2005, 2006 and later in 2008.
The applicant, using his scientific knowledge, implemented projects which resulted in development of new systems, products, processes, tools, technologies etc. like Learning Management System Brihaspati, Real time captioning of content in Indian language, Quality Assurance Framework, new courseware etc. which had in both innovative character and directly linked to R&D. This has been well recognized by the DPRC. The respondent no.2 has admitted vide letter dated 19.05.2008 that the project implementation of the applicant is at par with field experience and that the applicant has also implemented similar programmes of project implementation and covered under the FCS.
The applicant has cited several examples of such admissions on the part of the respondents. The applicant has further argued that the ACCs decision is based on conjectures and not on facts. Though the recommendations of the Selection Committee in 2008 were accepted, but of 2007 were rejected. Likewise, the recommendations of June, 2009 Selection Committee had been accepted while of December, 2009 had been rejected.
7. The respondents have filed their counter affidavit contesting the claim of the applicant on all counts. The respondents have raised an issue of limitation since the applicant seeks quashing of an order which relates to the period commencing from 01.01.2007. The applicant has come to this Tribunal in the year 2011. The power to condone the delay can only be exercised for a good and sufficient reason. In the present circumstances, the respondents submit that though the applicant has filed an application for condonation of delay but it does not contain good and sufficient reasons. The respondents further submit that it is true that the ACC is not a Body of Experts, but it is assisted by the Body of Experts. The framers of the rules were conscious that the Honble Prime Minister would not likely to be a Scientist yet the final decision has been vested into him. He can fall back upon a number of legal experts. There is no ground to assume that he was only looking at the note of the Cabinet Secretariat. In the second instance, the respondents have submitted in paragraph 4.18 of the reply to the corresponding paragraph of OA No.4231/2011 that the officer was mainly engaged in application of scientific techniques, without directly contributing towards R&D activities. The engagement of the officer in managing the autonomous bodies of the Department was not taken as having requisite field experience which is one of the basic requirements for promotion under FCS. It was, therefore, concluded that the officer was mainly engaged in application and promotion of scientific techniques in administrative capacity and had not added much by way of innovation. The respondents further argued that in the year 2009, the cases of officers were considered in two groups namely SS Garg and the applicant, which formed the First Group for review promotion whereas the cases of others, who had become eligible for promotion, formed the other Group. Both the Groups were interviewed separately. The DPRC found the applicant fit for promotion in its meeting held on 15.03.2010 and forwarded its recommendations to the DOP&T vide its OM dated 08.04.2010. The Screening Committee considered other Group on 11.05.2009 and recommended 12 officers for interview. The Selection Committee interviewed them on 26.06.2009 and recommended 5 officers. Hence, there is no anomaly in these sets of recommendations. The respondents have also submitted that there is no malafide involved nor are there any procedural latches. The respondents have further submitted, during the course of the arguments, that this Tribunal is not a substitute for the ACC and is not competent either to hold that whether a person is fit or not. Therefore, the Tribunal has no cause to interfere in the cases in hand.
8. Both these cases, being common in nature, have been heard together. We have carefully considered the pleadings and other documents submitted by the applicant as also by the respondents and have listened to the arguments of their respective counsels. On the basis of the above, we find that the following issues are germane for determination of these OAs:-
Whether these OAs are hit by limitation?
Whether the ACC, not being an Expert Body, has the competence to consider and set aside the recommendations of the Expert Body like DPRC?
Whether the applicant had the requisite field experience for promotion to Scientists Grade-G?
What relief, if any, can be granted to the applicant?
9. In so far as the first issue is concerned, it is necessary to look at a certain dates. The order of rejection of the case of the applicant was communicated by the Secretariat of the ACC, Department of Personnel & Training vide its communication dated 08.04.2009. However, the applicant has submitted that he did not have knowledge as no copy was endorsed to him. He only came to know of this rejection vide the information derived from another colleague and subsequently under Right to Information Act, 2005. It appears from the perusal of the impugned order that no copy had been endorsed to the applicant. In the meantime, the applicant had moved OA No.4279/2010 on 17.12.2010 followed by Contempt Petition No.778/2012. The cause of action in the instant case has apparently arisen with a communication of rejection on 08.04.2009. The fact that the applicant had moved the earlier OA on 17.12.2010 seeking a direction to be issued to the respondents to decide his case for promotion to the post of Scientist Grade-G clearly proves that he was not having knowledge of the actual affairs. The present OA has been filed on 05.01.2011. This makes us to arrive at the view that the delay has been reasonable explained. In any case, since the case has been heard substantially on merit, it is better that it should be decided on its merits rather than dismissing the case on ground of limitation. Hence, this question is answered negatively in favour of the applicant.
10. In so far as the second issue is concerned, we have to start our discussion with the issue of responsibility and supremacy of the Cabinet. The principle of supremacy of the Parliament remains unquestioned in the Indian Constitution. The Prime Minister is the leader of the party who enjoys the confidence of Parliament. The real executive authority of the Union is exercised by the Prime Minister and his Council of Ministers. India has adopted a cabinet system of government. Article 74 of the Constitution lays down that there shall be a Council of Ministers with the Prime Minister at the head to aid and advice the President who shall in the exercise of his functions act in accordance with such advice. The office of the Prime Minister has been created by the Constitution. Article 74 of the Constitution of India provides as under:-
74. Council of Ministers to aid and advise President.
[(1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice:] [Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.] (2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court. This Article is to be read along with Article 73 which provides the extent of executive power of the Union. The President of India is a Constitutional Head. Article 74 leaves no doubt that he is to act on the advice of the council of ministers. There are no discretionary or individual judgment power of the President as has been held by the Honble Supreme Court in the case of Shamsher Singh versus State of Punjab and Others [1974 (2) SCC 831]. The Honble Apex Court in this case overruled its earlier decision in the case of Sardari Lal V. Union of India (1971-AIR(SC)-1547) wherein it had been held that where the President or the Governor makes an order under Article 311(2) proviso (c) that in the interest of the security of the State it is not expedient to hold an enquiry for dismissal or removal or reduction in rank of an officer, the satisfaction of the President or the Governor is his personal satisfaction. Instead, the Honble Supreme Court has firmly affirmed the principle of Cabinet supremacy holding that even if an advice was to be tendered by the Cabinet and he abides by it, the responsibility and not of the President. The judgment in Sardari Lal versus Union of India (supra) had, in the words of the Honble Supreme Court, sparked off mini constitutional crisis. The Honble Supreme Court relied upon the statement of Dr. B.R. Ambedkar while introducing the draft Constitution on November 4, 1948 that the President of Indian Union will be generally bound by the advice of his Ministers. He can do nothing contrary to their advice nor can he do anything without their advice. The President of the United States can dismiss any Secretary at any time. The President of the Indian Union has no power to do so, so long as his Ministers command a majority in Parliament. However, the Honble Supreme Court has summed up the issue as under:-
138. Of course, there is some qualitative difference between the position of the President and the Governor. The former, under Article 74 has no discretionary powers the latter too has none, save in the tiny strips covered by Articles 163 (2), 371-A (1)(b) and (d), 371-A(2)(b) and (f), VI Schedule para 9(2) (and VI Schedule para 18(3), until omitted. recently with effect from 21-1-1972). These discretionary powers exist only where expressly spelt out and even these are not left to the sweet will of the Governor but are remote-controlled by the Union Ministry which is answerable to Parliament for those actions. Again, a minimal area centering round reports to be despatched under Article 356 may not, in the nature of things, be amenable to ministerial advice. The practice of sending periodical reports to the Union government is a preconstitutional one and it is doubtful if a Governor could or should report behind the back of his Ministers. For a centrally appointed constitutional functionary to keep a dossier on his Ministers or to report against them or to take up public stances critical of Government policy settled by the Cabinet or to interfere in the administration directly - these are unconstitutional faux pas and run counter to parliamentary system. In all his constitutional Functions it is the Ministers who act; only in the narrow area specifically marked out for discretionary exercise by the Constitution, he is untrammelled by the State Minister's acts and advice. Of course, a limited free-wheeling is available regarding choice of Chief Minister and dismissal of the Ministry, as in the English practice adapted to Indian conditions.
11. Admittedly, the Cabinet does not consist of Experts yet the Cabinet which is headed by the Prime Minister is the source of all executive powers in the country being constitutionally exercised. It functions on the principle of collectively responsibility as enshrined in the Constitution that it shall be collective responsible to the House of the people. The Appointment Committee of the Cabinet or the ACC, as it is better referred to, has been framed under the powers conferred under Article 77 of the Constitution of India dealing with the conduct of business of the Government of India. Sub-clause (3) of which provides that the President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business. Accordingly, it is a Sub-Committee of the Cabinet which is headed by the Prime Minister. This Committee is a fountain head of all powers and has the full authority to overrule the advice of the Experts or Bodies of Experts. The powers of the Appointment Committee are derived from the powers of the Cabinet and the same principles of Cabinet responsibility and supremacy of the Parliament are also applied to them ipso facto.
12. We close this issue by holding by conclusively holding that the power of the Appointment Committee of the Cabinet flows out of the powers of the cabinet and is not open to challenge on the ground that it lacks in expertise to overrule the recommendations of an expert body. In fact it would be against both the express provisions of the constitution and its spirit to do so.
13. This brings us to the next issue that whether the decisions of the ACC are beyond the realms of law or they are subject to question before this Tribunal. This question could also be framed differently that whether the decisions of the ACC lied within the purview of natural justice and are therefore subject to the jurisdiction of this Tribunal. We start by recognizing that the ACC is not a legal person in itself. It is just a committee of the Cabinet like 11 others. Cabinet is the central decision-making body of executive government. It is a collective forum for Ministers to decide significant government issues and to keep colleagues informed of matters of public interest and controversy. Cabinet is central to Parliamentary system of the government. In practice, however, all significant decisions or actions taken by the Executive are first discussed and collectively agreed by Cabinet. Cabinet determines and regulates its own procedures. Final decisions on Cabinet procedures rest with the Prime Minister, as the chair of Cabinet.
14. In the case of Vineet Narain & Others vs UoI & Another, 1998(1) SCC 226, the Honble Supreme Court was faced with an identical question that whether the executive decisions of the ACC were subject to judicial review. The Honble Supreme Court has held as under:-
These writ petitions under Article 32 of the Constitution of India brought in public interest, to begin with, did not appear to have the potential of escalating to the dimensions they reached or to give rise to several issues of considerable significance to the implementation of rule of law, which they have, during their progress. They began as yet another complaint of inertia by the Central Bureau of Investigation (CBI) in matters where the acquisition made was against high dignitaries. It was not the only matter of its kind during the recent past. The primary question was : Whether it is within the domain of judicial review and it could be an effective instrument for activating the investigative process which is under the control of executive ? The focus was on the question, whether any judicial remedy is available in such a situation? However, as the case progressed, it required innovation of a procedure within the constitutional scheme of judicial review to permit intervention by the Court to find a solution to the problem. This case has helped to develop a procedure within the discipline of law for the conduct of such a proceeding in similar situations. It has also generated awareness of the need of probity in public life and provided a mode of enforcement of accountability in public life. Even though the matter was brought to the Court by certain individuals claiming to represent public interest, yet as the case progressed, in keeping with the requirement of public interest, the procedure devised was to appoint the petitioners' counsel as the amicus curiae and to make such orders from time to time as were consistent with public interest. Intervention in the proceedings by everyone else was shut out but permission was granted to all, who so desired, to render such assistance as they could, and to provide the relevant material available with them to the amicus curiae for being placed before the Court for its consideration. In short, the proceedings in this matter have had great educative value and it does appear that it has helped in future decision making and functioning of the public authorities.
15. However, in the case of Union of India & Another versus Pradeep Kumar Kedia etc., where the respondents had challenged the decision of the ACC that no further appointment of members in the Income Tax Appellate Tribunal would be made until the Income-tax Appellate Tribunal (Recruitment and Conditions of Service) Rules 1963 were to put in place. The Principal Bench of this Tribunal had allowed the OA directing consideration of appointment of the waitlisted candidates. In a writ petition the Honble Delhi High Court held that the only way of reducing the backlog is to fill up the vacancies at the earliest and by not doing so, the Union of India was merely prolonging the agony of a large number of assesses apart from depriving itself of its legitimate dues which depends upon the verdict of the Income Tax Appellate Tribunal in appeals pending before it. The High Court, therefore, did not accept the explanation given by the Union of India in not making appointments and dismissed the writ petition and further directed the Union of India to process the case for the appointment of the 3 wait-listed candidates against the respective vacancies and thereafter place the matter before the Appointments Committee of the Cabinet for further directions within the period of eight weeks. The Honble Supreme Court held while rejecting a SLP against this that it was not open to the Government to ignore the panel which has already been approved and accepted by it and resort to a fresh election process without giving any proper reason for resorting to the same. Accordingly the Madras High Court has disposed of writ petition No. 8288 of 2007 on 24.04.2007 with a direction to the appellants to place the matter before the Appointments Committee and further directed to give effect to the selection list as approved by the Selection Board in the light of the decision in R.S. Mittal v. Union of India (supra) and A.P. Aggarwal v. Govt. of NCT of Delhi and Another (supra). Against these directions of the Madras High Court, the Honble Supreme Court dismissed the special leave petition filed against this and directed the Union of India to complete the formalities and give effect to the selection list. The appellants in this case again the Honble Supreme Court to consider whether the selection list has been given effect to by the appellants in the light of the decisions in R.S. Mittal v. Union of India (supra) and A.P. Aggarwal v. Govt. of NCT of Delhi and Another (supra). The Honble Apex Court in due consideration of the matter held that As has been held by this Court in Director, SCTI for Medical Science & Technology and Another v. M. Pushkaran (supra) each case must be considered on its own merits and where the Court does not find any reason for the authorities not to offer any appointment to the candidate placed in the selection panel the Court can direct appointment. In the facts of the present case, the Madras High Court did not see any justification on the part of the Central Government in not giving effect to the select panel when there was a very large pendency of cases in the Income Tax Appellate Tribunal resulting in hardship to the litigant public as well as loss to the exchequer, but after the Appointments Committee approved appointments of 16 selected candidates found suitable for appointment as members of the Income Tax Appellate Tribunal, the immediate need for filling up the vacancies was met and if the Appointments Committee has taken a view that any further appointments will be considered only after the rules are amended, the Court should not compel the Central Government to make the appointments from the wait-listed candidates recommended by the Selection Board by a writ of mandamus. In our considered opinion, the circumstances in which this Court dismissed the Special Leave Petition against the order of the Madras High Court no longer subsisted after the Appointments Committee approved the appointment of the 16 selected candidates so as to warrant a direction by the Delhi High Court to the Central Government to appoint the 3 wait-listed candidates as members of the Income Tax Appellate Tribunal.
16. We conclude the discussions on this issue with the findings the ACC is undeniably a decision making authority. Its decisions have to conform to the laws of natural justice and other related statutory provisions. These decisions are not beyond the purview of the courts where they deviate from the law of natural justice. However, there can be no uniform prescription in this regard. Every case will have to be judged on its own merit. However, the courts are precluded going into the merits of the decision and supplementing the same with their own decisions.
Issue No.4:
17. This issue relates to the subject that whether the applicant was having requisite experience when his case was considered by the ACC. We pre-qualify our discussion by the statement that this Tribunal is not a superior appellate body to ACC and does not go into the merits of the case. It is a well accepted position of law that the power of judicial review is confined to three elements whether the case is marred by procedural latches; whether there is malafide reflected; and whether there has been some violation of some statutes. We find that there has been no violation of any of the statutes. Earlier in this order, we have discussed the setting up and the functions of the permanent Committees of the Cabinet. It has neither been alleged nor do we find any such violation. We do not either find any evidence of malafide or malice in law having been alleged against any person or that anyone has been impleaded as party respondent in personal capacity.
18. However, without going into the merits of the issue, we do take cognizance of the fact that the case of the applicant had been cleared by two successive DPRCs in the year 2007 & 2009. This review has been made on the basis of the different requirements of promotion. As it has already been discussed, the criteria for promotion under FCS has been laid down in OM dated 09.11.1998 whereby the Scheme was made applicable to the respondent-department. For the sake of clarity, the criteria for considering promotions under FCS are being reproduced as under:-
CRITERIA FOR CONSIDERING PROMOTIONS UNDER FLEXIBLE COMPLEMENTING SCHEME All the officers will be first screened on the basis of gradings in the Annual Confidential Reports (ACRs) for consideration for promotion; the ACRs shall be assessed on a 10 point scale giving 10 marks for outstanding, 8 marks for very good, 6 marks for good, 4 marks for average and 0 for poor and only those officers who satisfy the minimum residency period linked to their performance as indicated in the table below be screened in.
Number of years in the grade 3 4 5 6 7 8 Minimum percentage for eligibility Scientist B to C 90% 80% 70% 65% 60% Scientist C to D 90% 80% 75% 70% 60% Scientist D to E 90% 80% 75% 70% 60% Scientist E to F 90% 80% 75% 70% Scientist F to G 90% 80% 75% 70% Exceptionally meritorious candidates with all outstanding gradings may be granted relaxation in the residency period, the relaxation being not more than one year on any single occasion. Such a relaxation will be limited to a maximum of two occasions in their entire career.
(c) All the officers who are screened-in will be called for an interview. The performance in the interview will also be graded similarly on a 10 point scale and the eligibility for promotion will be based on the same norms as in the above Table.
(d) Field experience in research and development and/or experience in implementation of such scientific projects is compulsory for promotion of scientists recruited to the posts in the Secretariat of the Scientific Ministries/Departments to higher grade under FCS. Field experience of at least 2 years and 5 years respectively will be essential for promotion to Scientist F and Scientist G grades respectively. However, during the transitional period, Committee may relax this requirement in case of meritorious candidate. The said OM also prescribes field experience in research and development and/or experience in implementation of such scientific projects is compulsory for promotion of Scientists recruited to the post in the Secretariat of the Scientific Ministries/Departments to higher Grades under FCS. The field experience of 2 years and 5 years respectively will be essential for promotion to Scientist F and Scientist G candidates. However, the Committee may relax this requirement in case of meritorious candidates. This has been further reiterated vide OM dated 06.08.2001 which prescribes as under in the Tabular form:-
TABLE Designation Scale of pay Minimum Residency period linked to performance (1) (2) (3) Scientist B Rs.8000-275-13,500 3 years Scientist C Rs.10,000-325-15,200 4 years Scientist D Rs.12,000-375-16,500 4 years Scientist E Rs.14,300-400-18,300 5 years Scientist F Rs.16,400-450-20,000 5 years Scientist G Rs.18,400-500-22,400 -
(C) No person other than a person possessing the essential educations qualification of at least Masters Degree in Science/Maths/Computers/Electronics or Bachelors Degree in Engineering or equivalent or Technology shall be eligible for in-situ promotion under the Flexible Complementing Scheme.
19. As discussed earlier, the applicant was recommended following the two level screening processes in the years 2007 and 2009 by the Selection Committee and the DPRC. It appears from the perusal of the relevant file that a one page note was also enclosed by the department wherein it has been mentioned under the column of field experience:-
Academic Excellence Field Experience:
M.Tech Integrated Electronics and Circuits, IIT Delhi.
Worked in Bharat Electronics Ltd. Ghaziabad (1982 to 87) in D&D Div. on Design of Defense Electronic Eqpt. Working in DOE/DIT from 1987 to till date in the following areas:
- Conceptualized, initiated and implemented e-learning/ Digital Library/ HRD Technology Dev.
- Drafter Semiconductor Integrated Circuits Layout Design Act and Rules with Law Ministry.
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- Member Technical of the UNDP sponsored Project entitled Center for VLSI Design and Prototyping in DIT. Academic Excellence Imparted six trainings programme (each one week duration -40 hrs.) on VLSI designing using VHDL to faculty of more than 60 engineering colleges/polytechnics from 1998-2001.
20. The department is consistently of the view that the officer was endowed with the necessary field experience. The note of one N. Ravi Shankar, Joint Secretary in the respondent department dated 08.04.2010 is also specific relevant part of which is as under:-
5.Shri Sunil Alag has contributed in drafting a Subordinate Legislation under Semiconductor Integrated Circuits Layout Design Act, which has come into force. Promoted applications of electronics and Information Technologies in education in new and emerging area of e-learning. Technologies developed included Development of Open Source Brihaspati Learning Management System, Real-time captioning of content in Indian languages, Quality Assurance Frame work etc., Development of Multimedia rich content in e-security, engineering courses, Animation and Multimedia etc., Capacity Building 240 Teachers (each programme of 04 weeks). These successful pilot initiatives have led to mega projects on ICT by MHRD. In the Digital Library area, identified content & institute and set up complete Digital Library Chain. Efforts in this area has led to strengthen countrys identity by digitally preserving national heritage and intellectual output.
6. Shri Sunil Alag, as M.Tech, has sufficient experience of more than 05 years in executing the scientific projects and fully meets the eligibility criteria laid down in the FCS guidelines. The recommendations of the DPRC have been approved by the Honble Minister for Communications & Information Technology. This was endorsed by the Secretary, DOP&T dated 25.02.2009. However, the Cabinet Secretary in his note dated 13.03.2009 has recorded that-
Establishment Officer has stated that from the bio-data and the note regarding their achievements, made available by the Department, it is seen that the Scientists are mainly engaged in application of scientific techniques, without directly contributing towards R&D activities. Managing the 6 autonomous bodies of the Department cannot be taken as having requisite field experience. Hence, there is little justification in support of the proposal of the Department.
In the present case, the brief provided by the Department shows that the two officers are mainly engaged in application and promotion of scientific techniques in administrative capacities and have not achieved much by way of innovation.
21. From the above, it appears that two sets of drawbacks have been found with the proposal that the Scientists were engaged in routine implementation and not in original R&D; and that they did not have the requisite field experience.
22. Further note is to be taken to the fact that the FCS is not a routine but has to be taken only in deserving cases. We take note of the arguments of the applicants counsel that the same set of criteria were used in respect of the years 2004, 2005 & 2006 and any departure from the same would be discriminatory to the applicant. We do not, however, subscribe to this argument for the simple reason that we find that the respondents have been quite strict in implementing the Scheme. For the year 2009, out of 12 cases of fresh candidates recommended, only 5 have been promoted to the post of Scientists Grade-G. We take cognizance of the fact that the standard of judgment for both the cases is the same. Had it been a case of field experience alone, this argument could have been rebutted by taking a stand that the successive DPRCs and the respondent no. 2 had found him having the requisite field experience. However, the rejection is on the ground of field experience and merit. As mentioned earlier, this Committee is not competent to go into the issue of merit. We have already discussed while dealing with Issue No.1 that whether a Committee comprising non-technical persons could override the recommendations of the Technical Committee and we found this argument unacceptable as it strikes the very root of the democratic process.
23. In consideration of the facts and circumstances of the case and on account of the issues having been answered, the way that they have been answered, we find both these Original Applications devoid of merit and are hence dismissed. There shall be no order as to costs.
(Dr. Birendra Kumar Sinha) (Syed Rafat Alam)
Member (A) Chairman
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