Central Administrative Tribunal - Delhi
Krishna Venakatarama Sharma vs M/O Earth Science on 14 January, 2026
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Item No. 42/C-IV OA No. 833/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O. A. No. 833/2016
Reserved on: 26.11.2025.
Pronounced on: 14.01.2026.
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Mr. Rajinder Kashyap, Member (A)
Krishna Venkatarama Sharma,
S/o: Shri V. Sankara Krishna Sharma,
Aged 51 Years,
Scientist ‗E',
Ministry of Earth Sciences,
Government of India,
Prithvi Bhawan, Lodhi Road,
New Delhi-110003.
resident of:
S-3, HUDCO Place Extension,
New Delhi-110049 ...Applicant
(By Advocate: Mr. T. R. Mohanty)
Versus
Union of India,
Through the Secretary,
Ministry of Earth Sciences,
Government of India,
Prithvi Bhawan, Lodhi Road,
New Delhi-110003 ... Respondent
(By Advocate: Mr. S. N. Verma)
NEETU Digitally signed by NEETU SHARMA
Date: 2026.01.15
12:15:46
SHARMA +05'30'
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Item No. 42/C-IV OA No. 833/2016
ORDER
Hon'ble Mr. Rajinder Kashyap, Member (A): -
By way of the present O.A. filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following reliefs: -
"8.1. to allow the present Application;
8.2. to issue a positive mandamus directing the Respondents to promote the Applicant as Scientist 'F' with effect from 01.01.2012 notionally and with effect from 29.06.2015 actually;
8.3. to consequently direct the Respondents to fix the salary of the Applicant in Pay Band 4,with Grade Pay Rs. 8,900/- as per Rules;
8.4. to grant the consequential financial benefits to the Applicant, including arrears of pay;
8.5. to grant compound interest to the Applicant on the arrears of pay @18% per annum, compounded annually, from the date it was due till the date of actual payment of monies die;
8.6. to allow exemplary costs of the application; and 8.7. to issue any such and further order/directions this Hon'ble Tribunal deems fit and proper in the facts and circumstances of the case."
FACTS OF THE CASE
2. Mr. T. R. Mohanty, learned counsel for the applicant submits that the applicant joined the respondent's Ministry as Scientist ‗C' under the Flexible Complementing Scheme in the year 1997 and the applicant was promoted as Scientist ‗D' and subsequently as Scientist ‗E' in Pay Band 4, with Grade Pay of Rs. 8,700/-. The applicant was due to be promoted as Scientist ‗F' w.e.f. 01.01.2012, a post in Pay Band 4, with Grade Pay of Rs. 8,900/-, on completion of five years of Service as Scientist ‗E'. However, the applicant was drawing this Pay Scale w.e.f. 20.06.2011 on his deputation post at Berlin.
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2.1 It is further submitted that the applicant was granted one
year Study Leave w.e.f. 03.08.2007 to complete a Ph.D and later on the applicant was granted an additional year of Study Leave for the same purpose. Thereafter, the applicant also took personal leave w.e.f. 03.08.2009 till 16.02.2010 to continue his research for the Ph.D programme. The applicant rejoined the respondent's Ministry on 17.02.2010. The applicant further submitted that he was not able to complete his Ph.D for several reasons beyond his control and was making all efforts to complete his Ph.D in his own time and at his own cost. It is also contended that the applicant was selected from amongst fifty candidates for deputation as Scientific Attaché in the Embassy of India at Berlin, which post is in Pay Band 4 with Grade Pay of Rs. 8,900/- w.e.f. 19.06.2011 and the initial period of deputation was for three years. The deputation of the applicant at Berlin was extended for a period of one year on the dint of his merit, which was completed on 19.06.2015. After availing preparatory leave of eight days w.e.f. 20.06.2015 to 27.06.2015, the applicant travelled to India on 28.06.2015 and joined his duties in the respondent's Ministry w.e.f. 29.06.2015.
2.2 In terms of the extant instructions, the period of Study Leave, leave taken for study purposes and the period of Foreign Deputation in a Scientific Post shall count towards the minimum residency period for promotion to the next higher grade. In terms of the extant instructions, the date of effect of promotion to the next higher Grade is either First of January, or the First of July of the concerned year.
2.3 The applicant concedes that in terms of the extant rules, an officer on Foreign Deputation cannot be granted proforma promotion along with his juniors, but when the Officer returns from his Foreign Deputation, he is required to be granted his 4 Item No. 42/C-IV OA No. 833/2016 promotion from the date his junior was granted his promotion, with notional fixation of pay from the date and actual salary of the higher post from the date he joined his post in India. While the rules of proforma promotion may not be exactly applicable to the Flexible Completing Scheme as availability of posts are not a question here, but the principles may be applicable to the Flexible Complementing Scheme. Even then, the applicant has to be given a notional promotion to Scientist ‗F' w.e.f. 01.01.2012 with notional fixation from that date and actual arrears of salary w.e.f. 29.06.2015 onwards, the date on which the applicant returned from Foreign Deputation and joined the respondent's Ministry. After returning from Berlin, the applicant initially made several verbal requests for promotion to various officers in the respondent's Ministry but his requests were of no avail. Thereafter, the applicant has been submitting written requests in the form of several notes initially, followed by a letter dated 30.12.2015. However, the requests of the applicant have fallen in deaf years, forcing the applicant to approach this Tribunal.
2.4 There can be two and only two impediments in grant of promotion to the applicant. The first is refusal of Vigilance Clearance to the applicant and the second would be Adverse Remarks and Below Bench Mark Grading in the Annual Confidential Reports/Annual Performance Appraisal Reports. As far the first impediment is concerned, the Rules and the Law in this regard is well settled. There are three and only three circumstances/conditions when Vigilance Clearance for promotion may be denied, which are:―(i) Government servants under suspension; (ii) Government servants in respect of whom a charge-sheet has been issued and the disciplinary proceedings are pending; and (iii) Government servants in respect of whom prosecution for a criminal charge is pending‖. It is humbly 5 Item No. 42/C-IV OA No. 833/2016 submitted none of these conditions are applicable for the applicant and, therefore, Vigilance Clearance for promotion could not have been denied to the applicant. The applicant places on record Department of Personnel& Training OM dated02.11.2012 (Annexure-A/4). As far as the Annual Confidential Reports/Annual Performance Appraisal Reports of the applicant is concerned, the applicant believes that by the dint of his merit and hard-work he must have been graded as outstanding. In any case, the applicant has not been told of any Adverse Remarks or Below Bench Mark Grading in any of the Annual Confidential Reports/Annual Performance Appraisal Reports of the applicant and in such a situation, the rules and the law is very clear and well-settled.
2.5 While the applicant is not being told anything formally asto why he has not been granted promotion as Scientist ‗F', the applicant has been told informally that he is not being granted the promotion as he has not completed his Ph.D. for which he had been granted Study Leave. It is humbly submitted that non- completion of Ph.D. for which the applicant was granted Study Leave cannot be a ground to deny promotion to the applicant. There are no rules or regulation or law that supports such a course of action to deny promotion to the applicant, if at all the same is true. It is well-settled law that when any prejudicial/penal consequence is to follow, such an order must have the support of a statute empowering the same, as held by the Constitution Bench in State of Madhya Pradesh Vs. Thakur Bharat Singh, AIR 1967 SC1170:-
"(iii) All executive action which operates to the prejudice of any person must have the authority of law to support it, and the terms of Art. 358 do not detract from that rule. Article 358 expressly authorizes the State to take legislative or executive action provided such action was competent for the State to make or take, but for the provisions contained in Part III of the Constitution. Article 358 does 6 Item No. 42/C-IV OA No. 833/2016 not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and others: it merely provides that so long as the proclamation of emergency subsists laws may be enacted, and executive action may be taken in pursuance of lawful authority, which if the provisions of Art. 19 were operative would have been invalid."
(Emphasis Supplied) 2.6 The impugned inaction is bad in law in view for another reason. It is submitted that the applicant has been subjected to unfair and unconstitutional treatment, to remedy which, this Tribunal, may step in to issue a positive mandamus as prayed for inasmuch as that if the applicant has to be promoted w.e.f. 01.01.2012, with all consequential benefits. The applicant would like to submit here that the respondent Ministry is well aware of the incidents that have resulted in non-completion of Ph.D. of the applicant for which the applicant had been granted Study Leave. The applicant submits that he had been granted permission for Foreign Deputation in 2011 and prior to 2013, when the case of the applicant was being considered for extension of Foreign Deputation for one year from 2014, in 2012,the respondent Ministry had issued a Show Cause Notice to the applicant on the issue of non-completion of Ph.D. of the applicant for which the applicant had been granted Study Leave and satisfied with the reply of the applicant thereto the respondent had granted extension of Foreign Deputation for one year to the applicant. Be that as it may, at this point of time, in terms of the extant rules and the well-settled law, no penal action can be taken against the applicant for non-completion of Ph.D. of the applicant for which the applicant had been granted Study Leave. The matter has to be treated as closed. In view of the above, the applicant prays that this Tribunal may be graciously pleased to issue a positive mandamus promoting the Applicant as Scientist ‗F' w.e.f. 01.01.2012.
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3. Pursuant to notice issued by this Tribunal, the respondents have filed their counter reply to which the applicant has also filed his rejoinder.
CONTENTIONS OF THE APPLICANT
4. Learned counsel for the applicant contended that the act of the respondents is both factually perverse and legally unsustainable on the following grounds:--
(a) In this regard the impugned inaction is violative in terms of the judgment in Emperor Vs. Sibnath Banerji, AIR 1945 PC 156;Jagannath Vs. State of Orissa, AIR, 1966 SC 1140; Abdul Rajjak Abdul Wahab Vs. Commissioner of Police, (1989) 2 SCC 222; Reita Rahman Vs. Bangladesh, 50 DLR (1998);
Rina Sen Vs. CIT [1999] 235ITR 219, 225-26 (Pat.); ITO Vs. James Joseph O'Gorman [1993] 204ITR 454, 458 (Cal.); New Central Jute Mills Vs. Dwijendralal Brahmachari, [1973] 90 ITR 467 (Cal.); Jai Singh Vs. State of Jammu & Kashmir, 1985 (1) SCALE 105 : (1985) 1 SCC 561 : 1985(17) UJ 410; and Ghaziabad Zila Sahkari Bank Ltd. Vs. Additional Labour Commissioner and Ors., JT 2007 (2) SC 566.
(b) The act of the respondents is violative in terms of the judgment in R. S. Garg Vs. State of U.P., AIR 2006 SC 2912; P. Mohanan Pillai Vs. State of Kerala, 2007 AIR 2840; M. P. State Co-op. Dairy Fedn. Ltd. Vs. Rajnesh Kumar Jamindar, (2009)15 SCC 221; Kalabharati Advertising Vs. Hemant Vimalnath Narichania, (2010) 9 SCC 437; Swaran Singh Chand Vs. Punjab State Electricity Board, AIR 2010 SC 151; and Ravi Yashwant Bhoir Vs. District Collector, Raigad, (2012) 4 SCC 407.
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(c) The official respondent has misdirected itself in law, on several counts. The illegal inaction of the official Respondent is a colourable non-exercise of power. The inaction of the official respondents is nothing but another means of harassing the present applicant.
(d) The impugned inaction is in fact an obstruction placed in the path of the legitimate rights of the applicant to be promoted as per his entitlement. The impugned inaction invites issuance of a positive mandamus from the Tribunal in terms of the judgment of the Hon'ble Supreme Court in Comptroller and Auditor General of India Vs. K. S. Jagannathan, AIR 1987 SC 537.
(e) The impugned inaction is arbitrary and discriminatory. The impugned inaction is against the legitimate expectations of the applicant. The impugned inaction is without any cogent reason. In this regard the impugned inaction is violative of the judgment in M. J. Sivani Vs. State of Karnataka, AIR 1995 SC 1770,Kumari Shrilekha Vidyarthi Vs. State of U. P., AIR 1991 sc 537, Assistant Commissioner, Commercial Tax Department, Works Contract & Leasing, Kota Vs. M/s Shukla & Brothers, (2010) 4 SCC 785; S.N. Mukherjee Vs. Union of India,(1990) 4 SCC 594; Siemens Engineering and Manufacturing Co. of India Ltd. Vs. Union of India and Anr., AIR 1976 SC 1785; McDermott International Inc. Vs. Bum Standard Co. Ltd. and Ors.,(2006) SLT 345; Gurdial Singh Fijji Vs. State of Punjab, (1979) 2SCC 368; State of Maharashtra Vs. Vithal Rao Pritirao Chawan,[(1981) 4 SCC 129]; L.I.C. of India & Anr. Vs. Consumer Education and Research Centre & Ors., AIR 1995 SC 1811; Union of India Vs. M. L. Capoor & Ors., AIR 1974 SC 87; Mahesh Chandra Vs. Regional Manager, U. P. Financial Corporation & Ors., AIR 1993 SC 935; State of West Bengal 9 Item No. 42/C-IV OA No. 833/2016 Vs. Atul Krishna Shaw & Anr., AIR 1990 SC 2205; Krishna Swami Vs. Union of India & Ors., AIR 1993 SC 1407; Sant Lal Gupta & Ors. Vs. Modern Co-operative Group Housing Society Ltd. & Ors., (2010) 13 SCC 336; Institute of Chartered Accountants of India Vs. L. K. Ratna & Ors., AIR 1987 SC 71; and Ravi Yashwant Bhoir Vs. District Collector, Raigad, (2012) 4 SCC 407.
(f) The impugned inaction is violative of the judgment in State of Madhya Pradesh Vs. Thakur Bharat Singh, AIR 1967 SC1170. The impugned action is bad in law as it runs counter to the provisions of Department of Personnel & Training OM dated 02.11.2012. The impugned inaction is bad in law as the respondents owe the applicant the Duty of Care not only to the applicant, but towards the family of the applicant. Consideration of the applicant for promotion as Scientist ‗F' after completion of the residency period is a fundamental right and cannot be curtailed/denied.
REPLY OF THE RESPONDENTS
5. Learned counsel for the respondents, by referring to the counter affidavit filed on 15.01.2017, submitted that the bone of contention on behalf of the respondents is that the applicant has failed to complete the approved course of study for which he was granted Study Leave for a period of two years and leave in continuation and this period could not be considered as qualifying for the purpose of completing the mandatory residency period of five years. After completion of residency and availability of APARs he was considered and granted promotion as Scientist F on the recommendation of Assessment Board. Therefore, the claim of the applicant that he was due for promotion with effect from01.01.2012 is misleading and not covered by any Rules or provisions of the MFCS.
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5.1 Learned counsel for the respondents stated that the
competent authority decided not to consider the period spent on study leave as qualifying for count of residency for in-situ promotion under MFCS due to non-submission/non-completion of approved course of study for which study leave was sanctioned.
5.2 Learned counsel for the respondents submitted that the respondents' Ministry has two cadres viz. Scientific and Administrative. The posts in Administrative Cadres belonging to CSS/CSSS/CSCS (three central services) are under cadre control of Department of Personnel & Training (DoP&T) and posts in Scientific Cadres are under administrative control of Ministry of Earth Sciences. The recruitment, promotion and service conditions are governed as per notified Recruitment Rules from time to time.
5.3 It is further stated that the Scientists in Scientific Ministries are granted promotion (in situ) in terms of Department of Personnel & Training guidelines on Flexible Complementing Scheme (FCS) contained in their OM No. 2/41/97-PIC dated 09.11.1998. These guidelines have been notified and included in the RRs vide GSR No.156 dated 28th April, 2005 (Annexure- R/1). The in-situ promotion scheme was modified by DoP&T after implementation of 6th Central Pay Commission and called as Modified Flexible Complementing Scheme (MFCS). DoP&T has issued extended guidelines governing the modified scheme vide their OM No. AB-14017/37/2008-Estt (RR) dated 10.09.2010 and subsequent instruction issued from time to time. The MFCS guidelines have also been included and notified in Ministry's RRs vide GSR No703 dated 19.09.2012 (Annexure-R/2). MFCS for grant of in-situ promotion to scientists is not linked with vacancy and is a merit-based promotion scheme where scientists are assessed on completion of prescribed residency. There are two 11 Item No. 42/C-IV OA No. 833/2016 levels of assessment of which the first one shall be internal level for screening purpose and the next level for assessment purposes. Consideration for up-gradation by the Assessment Board shall be done twice a year, i.e. before the 1st January and the 1st July of every year and those who have completed or will complete that specified period of residency in a post during a period of three months before or three months after the 1st January or the 1st July as the case may be, shall be considered for up-gradation (in-situ promotion) to the next higher grade. Thus, the promotion under MFCS cannot be claimed merely on completion of residency but is granted after assessing the suitability of the scientists. As per the scheme, the field experience of at least 2 years and 5 years respectively shall be essential for promotion to the posts of Scientist F and Scientist G grades respectively. Scientists or Technical experts doing management or administrative work in the Ministry/Department shall not be considered for up-gradation under MFCS and they shall only be given benefit of up gradation under Modified Assured Career Progression Scheme. Thus, as per the scheme 2 years field experience is mandatory for promotion to the grade of Scientist F. Sh. K. V. Sharma joined Ministry of Earth Sciences (erstwhile Department of Ocean Development) as Scientist 'C' (erstwhile Senior Scientific Officer) w.e.f. 08.08.1997. He got in-situ promotion to the post of Scientist 'D' w.e.f. 01.07.2001 under FCS and to the post of Scientist 'E' w.e.f. 01.01.2007 under the scheme.
5.4 Learned counsel for the respondents further submitted that while working as Scientist 'E', Sh. K. V. Sharma was granted study leave for a period of one year from 03.08.2007 to 02.08.2008 to pursue Ph.D from JNU. On sanctioning of study leave, he executed the necessary bond as provided in CCS (Leave Rules), 1972. The competent authority sanctioned an extension of study 12 Item No. 42/C-IV OA No. 833/2016 leave for a further period of one year (2nd year) from 03.08.2008 to 02.08.2009. Sh. K. V. Sharma, Scientist E executed the necessary bond in terms of CCS (Leave Rules), 1972. It is also stated that the Government has made provisions under Leave Rules that if a Government servant, after coming into service, wants to achieve a higher degree and the competent authority feels that the degree is in the public interest and beneficial for the concerned department/ministry, the Government servant may be allowed Study Leave attaching with the condition that after completion of the study, he has to submit the certificate of examinations otherwise he/she has to refund the leave salary paid to him/her against the study period along with the applicable interest thereon. In this regard, the Government servant has to execute a bond also. During the entire service period, a Government servant is granted Study Leave maximum for a period of 2(two) years suffixing entitled leave but in no case the entire period (study leave + entitled leave) should exceed 36 (thirty six) months against the Study Leave in his/her entire service (Annexure-R/3). On completion of sanctioned two years study leave and regular leave in continuation of study leave availed by Sh. K. V. Sharma, Scientist E, he joined duty with effect from 17.02.2010. On joining duty, he had not submitted the proof of submitting the thesis with JNU and intimated in writing that the research work (writing of dissertation & analysis) to be done from other institutes remains to be done and is expected that the ‗Thesis' would be submitted by the end of this year i.e., in the year 2010 (Annexure-R/4).
5.5 The applicant failed to produce the certificate of submission of Thesis by end of year 2010 as per his undertaking in the year 2010 (Annexure-R/4). The applicant requested JNU for de- registration from the PhD program and his request was acceded to 13 Item No. 42/C-IV OA No. 833/2016 by JNU vide letter dated 18.11.2010 and he was allowed to de- register from PhD program w.e.f. 22.07.2010 and this was subject to condition that Sh. K. V. Sharma will re-register and submit Ph.D thesis within the period of four years from the date (07.08.2007) of confirmation to the Ph.D program as stipulated under clause 9 (iv) of the Ph.D Ordnance (Annexure-R/5). Sh. K. V. Sharma submitted an application for the post of Scientific Attaché in Indian Mission at Washington, Moscow, Tokyo and Berlin and his application was forwarded to Department of Science and Technology. On his selection to the post of Scientific Attaché in the Indian Mission at Berlin, Germany, he was relieved w.e.f. 18.05.2011. By that time he could not submit any proof to his competent authority about completion of his thesis. As per the JNU communication/directions dated 18.11.2010, Sh. K. V. Sharma was to submit Thesis by 06.08.2011 i.e. four years from the date of his confirmation to Ph.D program i.e. 07.08.2007 and even knowing this fact he submitted an application dated 18.05.2011 requesting for waiver of Ph.D submission within four years of joining after availing study leave as he would be in Berlin as Scientific Attaché in the Indian Embassy (Annexure-R/6). As per JNU communication dated 18.11.2010, Sh. K. V. Sharma was to submit ‗Thesis' by 06.08.2011. However, he proceeded to Berlin overlooking the facts that he had to submit the proof against the completion of study. In lieu of it, he requested to competent authority for waiver of Ph.D submission within four years of joining after availing of Study Leave as he would be in Berlin. Ministry of Earth Sciences vide letter No.16.06.2011 sought rule position under which his aforesaid request can be acceded to. However, Sh. K. V. Sharma did not reply to Ministry's communication (Annexure-R/7).
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5.6 A show-cause notice was issued to Shri K. V. Sharma vide
letter dated 29.03.2012, intimating him that since he had not completed the prescribed course of study and had failed to furnish the certificate evidencing submission of the thesis, which he was required to complete and submit, he would be liable to refund the actual amount of leave salary, allowances, fellowship, etc., in terms of Rule 63 of the CCS (Leave) Rules, 1972. The said notice, inter alia, called upon him to explain as to why the period of study leave and the leave taken in continuation thereof from 03.08.2007 to 16.02.2010 should not be treated as non-qualifying service for the purpose of calculation of the residency period for in-situ promotion under the MFCS (Annexure-R/8). Not satisfied with the reply received from Sh. K.V. Sharma, the competent authority decided not to consider the period spent on study leave as qualifying for count of residency for in situ promotion under MFCS due to non-submission/non-completion of approved course of study for which study leave was sanctioned. The Screening Committee held on 14.10.2011 to consider internal screening of scientists for promotion from ‗Scientist E' to ‗Scientist F' w.e.f. 01.01.2012 screened out Sh. K. V. Sharma's case for further assessment to grant him in-situ promotion from 01.01.2012 noting that as per the then Rule 4 (d) of notified RRs GSR No. 156 dated 28.04.2005, he has not completed required residency period as he was on study leave for 02 (two) years from 03.08.2007 to 02.08.2009 and thereafter, taken entitled leave and moreover, he submitted that during the study leave he had to wait for 6 months to obtain clearance/permission from Ministry of Environment & Forests for collection of coral reef samples from the Gulf of Mannar National Marine Biosphere Reserve (Annexure-R/9). Thereafter, Screening Committee held on 05.10.2012 to consider internal screening of scientists for promotion from ‗Scientist E' to ‗Scientist F' w.e.f. 01.01.2013 15 Item No. 42/C-IV OA No. 833/2016 screened out Sh. K. V. Sharma's again due to non submission of requisite documents required for assessment as he was on deputation abroad and also non fulfillment of required residency due to exclusion of study leave period (Annexure-R/10). Taking into account the non qualifying period of 2 years and leave taken in, continuation of Study Leave for which Sh. K. V. Sharma failed to produce certificate of submission of Thesis to JNU, the Competent Authority decided to consider him in 01.07.2014 slot i.e. on completion of required five year residency. Screening Committee held on 07.05.2015 to consider internal screening of scientists for promotion from Scientist E to Scientist F w.e.f. 01.07.2015 screened out Sh. K. V. Sharma due to non availability of APARs. (Annexure-R/11).
5.7 It is also stated that Sh. K. V. Sharma joined the Ministry w.e.f. 29.06.2015 on completion of three years and one year extension of deputation as Scientific Attaché in Indian Mission at Germany. He was again considered and assessed for promotion for the slot 01.07.2016 and screened in by the internal Screening Committee based on APARs. The APARs for the period from 2011- 2012, 2012-13 and 2013-14 for the period he served as Scientific Attaché to Embassy of India at Berlin were received from D/o Science and Technology only on 11.04.2016. Based on requisite documents including APARs, he was assessed by the Assessment Board and recommended for in-situ promotion from the post of Scientist 'E' to Scientist 'F'. Accordingly, Sh. K. V. Sharma, Scientist E has been promoted as Scientist F w.e.f. 25.07.2016 after taking the approval of competent authority (Hon'ble Minister for Earth Sciences) (Annexure-R/12).
REJOINDER TO THE REPLY OF RESPONDENTS
6. In rebuttal to the reply filed by the respondents, the applicant has filed rejoinder on 10.07.2017 reiterating the contentions as 16 Item No. 42/C-IV OA No. 833/2016 stated in the O.A. It is also submitted that the denial, not being specific, is also liable to be rejected, leading to the conclusion that the submissions in the O.A. stand admitted on account of doctrine of non-traverse also. The law on the subject is clear that even bland denials are not to be accepted and only denials backed by proof is to be accepted. The following judgments are relied upon in this regard:
(i) Bir Singh Chauhan Vs. State of Haryana, (1997) 6 SCC 282; (ii) Muni Suvrat-Swami Jain S. M. P. Sangh Vs. Arun Nathuram Gaikwad, AIR 2007 SC 38; (iii) Sheikh Abdul Sattar Vs. Union of India, AIR 1970 SC 479; (iv) J. K. Iron and Steel Co. Ltd., Kanpur Vs. The Iron and Steel Mazdoor Union, Kanpur, AIR 1956 SC 231; and (v) Regional Manager, S.B.I. Vs. Rakesh Kumar Tewari, AIR 2006 SC 839.
6.1 In rejoinder, learned counsel for the applicant highlights the O.M. dated 15.11.2000 and submits that merely the applicant did not complete the course in question does not ipso facto defeat the right of the applicant, insofar as applicability of flexible complementary scheme. More so, the amount has already been recovered.
ANALYSIS
7. We have perused the pleadings available on record and considered the submissions made by the learned counsels for the parties and have also gone through the Orders/Judgments referred to and relied upon by the learned counsel for the applicant carefully.
8. It is an admitted fact that the applicant joined the respondent Ministry as Scientist ‗C' in 1997 under the Flexible 17 Item No. 42/C-IV OA No. 833/2016 Complementing Scheme and was duly promoted up to Scientist ‗E'. Having completed the requisite residency period, he became eligible for promotion to Scientist ‗F' w.e.f. 01.01.2012. According to the applicant, his periods of study leave, leave for study purposes, and foreign deputation in a scientific post are, under extant rules, required to be counted towards eligibility for promotion. During his foreign deputation as Scientific Attaché in Berlin (2011-2015), he was already drawing the pay scale applicable to Scientist ‗F'. Although proforma promotion is not granted during foreign deputation, the settled principle mandates that upon return, the officer must be accorded promotion from the date his juniors were promoted, with notional fixation from that date and actual monetary benefits from the date of rejoining in India. Accordingly, the applicant claims entitlement to notional promotion as Scientist ‗F' w.e.f. 01.01.2012 and actual benefits from 29.06.2015, when he rejoined duty.
9. At the outset, it is well settled that promotion under the Flexible Complementing Scheme/Modified Flexible Complementing Scheme is not automatic upon completion of the residency period. The scheme envisages merit-based assessment, subject to fulfilment of all prescribed eligibility conditions, including qualifying service, field experience, and availability of complete APARs.
10. The scheme further empowers the competent authority to assess whether the residency requirement has been duly fulfilled, and such assessment necessarily includes determining what period qualifies as residency under the applicable rules.
11. It is an admitted position that the applicant was sanctioned Study Leave specifically to pursue a Ph.D. degree and that he 18 Item No. 42/C-IV OA No. 833/2016 executed the requisite bonds under CCS (Leave) Rules, 1972. It is equally undisputed that:
The applicant neither completed the Ph.D. nor submitted the thesis;
He was de-registered from the Ph.D. programme;
He failed to furnish the mandatory certificate of completion/submission of thesis.
12. Rule 63 of the CCS (Leave) Rules, 1972 clearly empowers the Government to take consequential action where the employee fails to complete the approved course of study. The Show Cause Notice dated 29.03.2012 and the subsequent decision of the competent authority not to treat the Study Leave period as qualifying service cannot, therefore, be said to be without authority of law.
13. The applicant's contention that non-completion of Ph.D. cannot have any service consequence is untenable. The grant of Study Leave is conditional and purpose-specific. Once the underlying purpose fails, the employer is legally entitled to deny ancillary benefits flowing from such leave, including counting it towards qualifying service for promotion.
14. The record reveals that the applicant was considered on multiple occasions by the Screening Committees for the slots of 01.01.2012, 01.01.2013, 01.07.2015 and thereafter. On each occasion prior to 2016, he was screened out for valid reasons such as:
Non-fulfilment of residency due to exclusion of Study Leave period;
Non-availability of APARs during foreign deputation;
Non-submission of requisite documents.19
Item No. 42/C-IV OA No. 833/2016
15. These decisions are based on objective criteria and cannot be termed arbitrary or mala fide. It is settled law that Courts and Tribunals should not sit in appeal over the assessment of expert bodies unless perversity or illegality is demonstrated, which is conspicuously absent in the present case. The applicant, who is a Scientist, is stated to be covered under FCS/MFCS for promotion.
The period spent by the applicant on study leave to pursue his Ph.D falls within the eligibility period claimed by the applicant, however, the applicant has neither completed his Ph.D nor submitted his ‗Thesis' despite extending the time upto 06.08.2011. Therefore, we are of the view that the applicant is not engaged in any Scientific Activity and services as laid down in Annexure-A/1 while introducing FCS for Scientists in various scientific department. In the facts and circumstances of the case, the respondents were well within their right in excluding the said period from the computation of the Residency period. It is profitable to extract the relevant portion of the said scheme:-
"Scientists and Engineers: Persons,
(a) who possess academic qualification of atleast Master's degree in Natural/Agricultural Sciences or Bachelor's Degree in Engineering/Technology/Medicine; and
(b) working in those capacities, use or create scientific knowledge, and engineering and technological principles, i.e. persons with scientific or technological training who are engaged in professional work on S&T activities, high level administrators and personnel who plan, direct or coordinate the execution of S&T activities;"
16. The applicant's reliance on the principles of proforma promotion is misplaced. MFCS is a distinct scheme and does not confer an enforceable right to retrospective promotion merely because juniors may have been promoted earlier. Moreover, even as per the applicant's own admission, proforma promotion during foreign deputation is not permissible, and the grant of notional promotion is subject to fulfilment of eligibility conditions, which the applicant admittedly did not satisfy at the relevant time.
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17. The respondents have not denied promotion on the ground of vigilance clearance. On the contrary, the delay in promotion was occasioned by the applicant's own failure to fulfil eligibility conditions and the non-availability of APARs from the borrowing organization, which were received only in April 2016.
18. Once the requisite APARs were received and the applicant fulfilled the eligibility criteria, he was duly assessed and promoted as Scientist ‗F' w.e.f. 25.07.2016. This conduct of the respondents negates the allegation of arbitrariness or discrimination.
19. The plethora of judgments relied upon by the applicant lay down general principles of administrative law relating to arbitrariness, non-application of mind, and duty to give reasons. There is no quarrel with the propositions laid down therein. However, the same are distinguishable on facts, as the respondents in the present case have acted strictly in accordance with statutory rules and notified guidelines, supported by reasoned decisions at each stage.
20. Promotion is not a fundamental right; only consideration for promotion is. The applicant was considered repeatedly and eventually promoted. Hence, no enforceable legal right of the applicant has been infringed.
21. In view of the foregoing discussion, this Tribunal finds that the respondents were justified in excluding the period of Study Leave from qualifying residency period due to non- completion of the approved course and the applicant was not found eligible for promotion as Scientist ‗F' with effect from 01.01.2012; the promotion granted to the applicant w.e.f. 25.07.2016 is in accordance with law and MFCS guidelines; and no arbitrariness, illegality, or violation of constitutional or statutory provisions is made out.
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22. The Original Application is devoid of merit and is accordingly dismissed.
23. There shall be no order as to costs.
(Rajinder Kashyap) (Manish Garg)
Member (A) Member (J)
/neetu/