Central Administrative Tribunal - Delhi
Y S Tanwar vs Ministry Of Electronics & Information ... on 12 May, 2023
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Item No. 35 (C-3) O.A. No. 2993/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No. 2993/2019
This the 12th day of May, 2023
Hon'ble Mr. Ashish Kalia, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
Y. S. Tanwar,
aged 63 years
S/o Late Sh. Charan Singh Tanwar,
R/o. H. No. 1090, Block-22, Lodi Colony,
New Delhi-110 003.
Retired as Scientist 'D' (Group-A)
from Ministry of Electronics & Information
Technology, New Delhi. ...Applicant
(By Advocate : Ms. Swati R. K)
VERSUS
Union of India, through
The Secretary,
Ministry of Electronics & Information Technology,
Government of India,
Electronics Niketan,
New Delhi - 110 003. .....Respondents
(By Advocate : Mr. N. K. Aggarwal)
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Item No. 35 (C-3) O.A. No. 2993/2019
ORDER (ORAL)
Hon'ble Mr. Ashish Kalia, Member (J) The applicant has filed this OA seeking the following main reliefs :-
"A. Set aside the Circular No. 2(4)/2017-PIII dated 06.03.2018 issued by the Ministry of Electronics & Information Technology.
B. Set aside the letter No. 13(8)/2016 P-III dated 03.10.2018 issued by the Ministry of Electronics & Information Technology rejecting the representation of the Applicant.
C. Direct the Respondents to place the Applicant‟s service records before the Screening Committees for their recommendations for promotion as Scientist „E‟ from 01.01.2014 in accordance with the Flexible Complementing Scheme for Group „A‟ S&T officers of the Ministry of Electronics & Information Technology issued vide Ministry of Electronics & I.T. OM No.-2(11)/2016 Pers-III dated 19.09.2016.
D. Direct the Respondent to grant him promotion as Scientist „E‟ with all consequential benefits such as revision of his pay and pension and the amount of leave encashment etc. if so recommended by the Screening Committees;
E. Pass any other further order or orders which this Hon‟ble Tribunal may deem fit and proper in the facts and circumstances of the case in the interest of justice."
2. The applicant who joined as Draftsman, was promoted as Scientist Group 'D' on 22.02.2010 after completion of 36 years of service. He superannuated on 3 Item No. 35 (C-3) O.A. No. 2993/2019 31.05.2015. It is stated that DPC took place sometime in 2017 as per Annexure A/7 page 70 whereIN the names of Mr. Bhupendra Kumar, Smt. Kamini Malik, Mr. D. K. Kalra, and Mr. Ashok Hanamsagar were considered. It is relevant to point out that on 01.01.2017 Mr. Hanamsagar had retired. The committee meeting was held on 06.03.2017.
3. The applicant alleged that since his colleagues Mr. Bhupendra Kumar, Smt. Kamini Malik, Mr. D. K. Kalra, and Mr. Ashok Hanamsagar were considered, his case also should have been considered by the respondents which they did not do.
4. Feeling aggrieved, he has made a representation to the respondents which has been rejected by the respondents vide impugned order dated 03.10.2018 where it is categorically stated that promotion in Group 'A' S & T officers is not vacancy based but post based and the OM of DoP&T dated 14.11.2014 cannot be made applicable in the case of the applicant for promotion to S 4 Item No. 35 (C-3) O.A. No. 2993/2019 & T post under MeitY's Personnel Policy since the applicant stood retired.
5. As per the impugned order passed by the respondents on 06.03.2018, a retired employee though may be considered for promotion, has no right for actual promotion as per DoPT OM dated 14.11.2014.
6. Notices were issued to the respondents who appeared and filed reply denying the averments made in the original application stating in paras 1, 2, 3 and 4.8 as under :-
"1. That the applicant had retired on 31.05.2015 on Superannuation almost more than seven years back. Obviously, his promotion could not be placed before the assessment committee as only those scientists who were still in service were still in service were considered for promotion.
2. That the representation of the applicant dated 14.03.2017 was replied to vice respondents letter dated 03.10.2018 as follows (ANNEXURE R-
1) "Please refer to your representation on the above Subject.
The matter has been examined and since the in-situ promotion of Group 'A' S & T officers are not vacancy based, the OM of DOPT dated 14.11.2014 cannot be made applicable in the case of promotions of S&T officers under MeitY's 5 Item No. 35 (C-3) O.A. No. 2993/2019 policy. Further, even if the retired employees are considered for promotion, they would not have rendered actual service in the promoted grade. Therefore, this Ministry has taken a decision that the S&T officers who have retired since the year 2011 cannot be considered for promotion under the Melty's Group 'A' S&T Policy. A copy of the circular dated 06.03.2018 issued by this Ministry is enclosed for ready reference.
Sd/-
(Roop Kishor) Deputy Secretary Tel: 2434591 Email [email protected]
3. That Shri D. Kalra and Ms. Kamini Malik were still in service at the time of assessments. The officers were promoted based on the recommendations of the Assessment Committee. Their promotions were granted from the date of promotion of their batches, whose promotions were considered under the MFCS as per the provisions of MeitY's OM dated 19.09.2016. The Scientist 'D' of 01.01.2014 batch under the MFCS (the batch mate of the applicant). were promoted on 24.10.2015. Accordingly, the promotions of Shri DK Kalra and Ms. Kamini Malik were made effective from the same date (ANNEXURE R-2).
4.8 That the contents of Para 48 of the OA, are wrong and denied and reply it is submitted the applicant was promoted to scientist (D) w.e.f. 22.10.2010 and became eligible for promotion to Scientist 'E' on 01.01.2014, after completing the minimum residency period of 4 years. The applicant has since retired on 31.05.2015. On superannuation the review exercise was conducted by the respondent for backlog scientists for the year 2011-2016 was initiated in the month of September, 2016 and the applicant was already retired at that time. Only those scientists who were still in service were considered for promotion."
6Item No. 35 (C-3) O.A. No. 2993/2019
7. Heard. On the basis of records, pleadings and arguments led by learned counsel for the applicant, we chose to decide this matter since this is pending since 2019 and the applicant who has since retired is suffering every day.
8. The short question raised by the applicant is whether the applicant is entitled to be considered for in situ promotion which is not vacancy based with effect from 01.01.2014 or not ? In this regard learned counsel for the applicant has drawn our attention to para 4 page 54 and para 9 page 56 of the paper book where it is mentioned as under :-
"4. All those S&T officials who have rendered the minimum residency period as indicated above, shall be eligible for consideration for promotion to the next higher grade. The crucial date for consideration shall be as on the 1st January and 1st July every year. The process for assessment should begin by October and April every year and end by mid-December and mid-June so that all promotions are given effect to as on 1st January and 1st July respectively every year. If, for some reasons, there are administrative delays in concluding the assessment process, the promotions shall, however, be given effect from as on 1st January/1st July of the eligible year.
9. The policy is to be made effective retrospectively w.e.f. 01.01.2011. Reviews already conducted since 2011 under the 7 Item No. 35 (C-3) O.A. No. 2993/2019 FCS/MFCS policies of DoPT would be treated as having been done under the new policy and past review cases will not be re-opened."
Meaning thereby that the promotion is to be considered for all Scientist Group B and E Grade with retrospective effect with effect from 01.01.2011 and it is only residency period which has to be considered. No other criteria has been specified in this circular meaning thereby that the applicant ought to have been considered along with his colleagues but the only rider put forth by the respondents in case of the applicant is that he has since retired and thus he cannot be considered.
9. Be that as it may, during the course of arguments, learned counsel for the applicant has drawn our attention to the Minutes of the Level -1 Screening Committee meeting held on 06.03.2017 wherein 'CONFIDENTIAL' is mentioned which is signed by R. K. Sudhanshu, Joint Secretary, MeitY Chairman along with two Members mentioning therein the names of Mr. Bhupendra Kumar, Smt. Kamini Malik, Mr. D. K. Kalra along with Mr. Ashok Hanamsagar who were considered for promotional post. 8 Item No. 35 (C-3) O.A. No. 2993/2019 It is astonishing to see that name of Mr. Ashok Hanamsagar has been considered for Scientist Grade-E who is similarly and identically placed with the applicant and has also retired on 01.01.2017 but has been considered by the respondents on 06.03.2017. When the DPC conducted on 06.03.2017 considered a person identically placed like the applicant, question comes for consideration that fair opportunity of promotion in case of the applicant is given or not?
10. In view of the above, we are of the considered view that the case of the applicant has not been examined carefully. We are in full agreement with the contention of the learned counsel for the applicant Ms. Swati R. K. and found that there is merit on her side on the basis of which we allow this OA and direct the respondents to place the records of the applicant before the promotion committee with effect from the date he became due for promotion i.e. w.e.f. 01.01.2014 on which date Mr. Ashok Hanamsagar was considered and granted promotion by the DPC.
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11. The respondents may take their own view and if he is otherwise eligible, shall be given promotion w.e.f. 01.01.2014 or from the date the vacancy arose during the years 2011 to 2016. However, since the applicant has not shouldered responsibility of Group 'E' Scientist post, he shall not be given any monetary benefits. His promotion should be given on notional basis and his pension and other benefits shall be considered accordingly.
12. With this observation, the OA stands disposed of.
There shall be no order as to costs.
(Dr. A. S. Khati) (Ashish Kalia) Member (A) Member (J) /Mbt/