Delhi High Court
Sanjeev Chawla & Anr vs Union Of India & Anr on 26 September, 2014
Bench: S. Ravindra Bhat, Vipin Sanghi
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% DECIDED ON: 26.09.2014
+ W.P. (C) 6592/2014
C.M. No.15684/2014
SANJEEV CHAWLA & ANR ..... Petitioners
Through: Mr. M.K. Bhardwaj, Advocate.
versus
UNION OF INDIA & ANR ..... Respondents
Through: Mr. Vikram Jetley, CGSC for R-1&2.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE VIPIN SANGHI S.RAVINDRA BHAT, J. (OPEN COURT)
1. Issue notice. Mr. Vikram Jetley, CGSC accepts notice on behalf of respondents.
2. The petitioner challenges an order of the Central Administrative Tribunal (hereafter referred to as "CAT") dated 7.3.2014 passed in OA 295/2013. The petitioners‟ claim for promotion on the basis of Flexible Complimenting Scheme (hereafter referred to as "FCS") in the respondents‟ organisation - National Technical Research Organization (hereafter referred to as "NTRO") to the grade of Scientist F was rejected.
They, therefore, approached this Court under Article 226 of the Constitution of India.
3. Briefly, the facts are that the petitioners were working as Deputy Director (Engineering) in the pay scale of Rs.10,000-15,2000 revised to `15,600-39,100 in All India Radio. They were deputed to the NTRO as Scientist „E‟ in the pay scale of `37,400-67,000 w.e.f. 5.10.2005. In terms W.P. (C)6592-14 Page 1 of the prevailing FCS permitting onward career progression, all employees working in the NTRO, with 5 years‟ service in the grade of Scientist „E‟ are entitled to be considered for promotion/upward placement as Scientist F, a higher grade. The petitioners were absorbed on regular basis in the NTRO w.e.f. 29.05.2009. They contended that based upon their initial officiation (or joining in the grade of Scientist E, in the NTRO w.e.f. 5.10.2005), they were entitled to be considered after the expiry of 5 years and placed in the grade of Scientist F. This contention was rejected by the NTRO which was of the opinion that the petitioners were entitled to reckon their services w.e.f. 29.5.2009 when their absorption was approved and secondly they were ineligible since they did not possess requisite prescribed qualification of a first class master‟s degree. The NTRO‟s further elaboration in respect of the first submission was that they were not entitled to reckon the period of officiation prior to their absorption also because they were not holders of analogous post in their parent department, i.e., All India Radio. It was also contended that the grant of non-functional grade in their parent department sometime in the year 2012 w.e.f.1.7.2006 could not have resulted in any consequential benefit of seniority or claim for promotion to the higher post in the borrowing organisation, i.e., NTRO.
4. The petitioners‟ contentions - based upon the decision of this Court in O.P. Gauba v. UOI (W.P.(C) 4751/2011), decided on 11.07.2011 and the earlier decision of the Supreme Court in K. Madhavan & Anr. v. Union of India and Others, 1987 (4) SCC 566 was rejected by the CAT which accepted the NTRO‟s contentions that the petitioners could not claim, as a matter of right, reckoning of the period of service spent in the parent organisation and also that the period of service within NTRO as deputed Scientist E till the date of absorption could not be reckoned for the W.P. (C)6592-14 Page 2 purposes of promotion to Scientist „F‟. The CAT also accepted the NTRO‟s contentions that the concerned rules spelt out the eligibility criteria of first class master‟s degree which had not been satisfied. In this regard, the NTRO had relied upon the District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram and Another v. Tripura Sundari Devi, 1990 (3) SCC 655, to the effect that the conditions of eligibility for filling a post cannot be overlooked.
5. Learned counsel for the petitioner urges that the Tribunal fell into error on two counts. It was firstly contended that the claim in the proceedings was not for the reckoning of entire period of service spent in the parent organization (All India Radio) but effectively from the date the applicant/petitioners joined NTRO as Scientist E, i.e., from 5.10.2005. The CAT‟s reasoning, contended counsel, contains no rationale why the 4 years‟ period between 5.10.2005 and 29.5.2009 should not be taken into consideration. It was next emphasized that the Tribunal fell into clear error in assuming that in order to be promoted to the post of Scientist „F‟, the incumbent in the feeder grade, i.e., Scientist „E‟ had to possess first class master‟s degree. In this regard, reliance was placed upon the prevailing policy containing the Recruitment Rules which did not require the incumbent as Scientist „E‟ to possess first class master‟s degree but only spelt out that the holder of the post must have a "Master's Degree in Physical Science Subjects or at Graduate Degree in Engineering or Technology from a recognized University or equivalent". It was lastly contended that the CAT fell into error in rejecting the ruling of the Supreme Court in K. Madhvan's case as well as the decision of the Division Bench in O.P. Gauba (supra).
6. Learned counsel for the respondents contended that the CAT‟s order is sound and does not call for interference. It was contended that the W.P. (C)6592-14 Page 3 advertisement issued in 2010 clearly envisioned that to fill the post of Scientist „F‟, the holder of the post of Scientist „F‟ had to possess first class master‟s degree. He also submitted that the upgradation of the petitioners‟ scales in their parent department made in 2012 though w.e.f. 1.6.2007 expressly stated that they would not be entitled for the benefit for the purposes of seniority and promotion. By the same analogy, they could not claim the period of service spent in the NTRO prior to their absorption for the purposes of reckoning the eligibility for promotion.
7. The first ground urged by the petitioners, i.e., absence of any rationale to exclude more than 4 years spent before absorption (w.e.f. 29.5.2009) in the Court‟s opinion, plainly exposes the CAT‟s error. There is no dispute that during this period, the petitioners worked as Scientist „E‟ and discharged the tasks assigned to that post. All that the FCS requires - by way of eligibility - is 5 years‟ working experience as Scientist „E‟. That NTRO chose note to make an absorption order in favour of the petitioners, was something beyond their control. Therefore, the respondents could not have ignored the period spent in NTRO to reckon eligibility for the purpose of promotion as Scientist „F‟.
8. So far as the second argument - with respect to qualification - is concerned, the records show that the relevant recruitment rules clearly state that Scientist „F‟ is a promotional post to Scientist „E‟ and the essential requirement of the holder of the post (Scientist „F‟) to be a master‟s degree graduate "in physical science subjects" is not prefaced with "first class"
post graduation requirement. Possibly that might hold true for direct recruits; the 2010 advertisement sought applications to fill a direct recruit vacancy. These facts were overlooked by the CAT, which concluded - without basis - that the petitioner did not hold the requisite qualifications.
9. For the above reasons, the Court is of the opinion that the impugned W.P. (C)6592-14 Page 4 order cannot be sustained; it is accordingly set aside. The respondents are hereby directed to consider the cases of the petitioners and pass appropriate orders of promotion subject to their fulfilling all other parameters required to fulfil apart from the original criteria of 5 years which have been pronounced upon. The necessary consequential orders in this regard shall be issued within eight weeks from today.
The writ petition is allowed in the above terms.
Order dasti.
S. RAVINDRA BHAT (JUDGE) VIPIN SANGHI (JUDGE) SEPTEMBER 26, 2014 /vikas/ W.P. (C)6592-14 Page 5