Central Administrative Tribunal - Delhi
Om Prakash vs M/O Environment And Forests on 29 January, 2024
1
OA No. 2701/2015
(C-III, item -44)
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 2701/2015
This the 29th day of January, 2024
Hon'ble Mr. Tarun Shridhar, Member (A)
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Om Prakash,
Scientist C (Retd.),
Aged about 62 years,
S/o Shri K. Singh,
Flat No. 639, Block No. 6,
Type III, Lodhi Colony,
New Delhi - 110003.
...Applicant
(By Advocate: Mr. Sudershan Rajan)
Versus
1. The Union of India represented by,
Secretary, Ministry of Environment, Forest & Climate
Change,
Indira Paryavaran Bhavan,
Jorbagh Road, Aliganj,
New Delhi - 110003.
2. The Secretary to the Govt. of India,
Department of Persoonel & Training (DoP&T),
North Block,
New Delhi - 110001.
...Respondents
(By Advocate: Mr. Ranjan Tyagi)
2
OA No. 2701/2015
(C-III, item -44)
ORDER (ORAL)
By Hon'ble Mr. Tarun Shridhar, Member (A):
The applicant was a Scientist in the Ministry of Environment, Forests & Climate Change, (MoEF&CC) and is stated to have been eligible for promotion from the post of Scientist (B) to Scientist (C) on completion of requisite qualified service under the scheme called Flexible Complementing Scheme (FCS). The applicant claims that he was due for promotion w.e.f. 01.01.2006 in terms of his eligibility by possessing the qualified service, however, his promotion was delayed and it was w.e.f. 02.07.2007 that the benefit of this promotion was extended to him. Further, he attained eligibility for promotion from Scientist (C) to Scientist (D) on 01.01.2010 but the benefit of such promotion was never extended in his favour and he retired on attaining the age of superannuation on 30.06.2013. Aggrieved by denial of what he claims is his legitimate entitlement, he has preferred the present OA seeking the following reliefs:
"(a) Declare that the impugned order dated 17-01-2013 whereby it has been contended that promotion with retrospective effect under FCS impermissible is illegal and unjust and is opposed to the law laid (order dated 02-05-2011 in SLP (C) CC No. 6864 of 2011) and accordingly quash and set the same aside.
(b) It be held that the applicant is entitled to ante-dating of his promotion from 01-01-2006 from the post of Scientist B to Scientist C and thus, his date of 3 OA No. 2701/2015 (C-III, item -44) promotions shall stand advanced from 02-07-2007 to 01-
01-2006.
(C) As a consequence thereof, it be declared that the applicant is also entitled to be considered for promotion from Scientist C to Scientist D on completion of residency period of four years from 01-01-2006 i.e. 01-01-2010 and the Respondent No. 1 be directed to consider the case of his in-situ promotion for the post of Scientist D w.e.f. 01- 01-2010.
(d) In view of the fact that the applicant has now superannuated, the drill of holding the interview be waived as in other cases (e.g. Nakul Dev (supra)).
(e) The consequential benefits of re-fixation of pay and working out of last pay drawn, revision of pension and other terminal benefits, payment of arrears thereof be also granted.
(f) As the Respondent No. 1 have unnecessarily dragged the applicant to litigation, deterrent cost be imposed against the Respondent No. 1 and in favour of the applicant.
(g) This Hon'ble Tribunal may pass such other suitable order or orders as this Hon'ble Court may deem fit to meet the ends of justice."
2. Learned counsel for the applicant briefly narrating the background and history of the case submits that under the FCS, Scientists are entitled for accelerated promotion on completion of a minimum qualifying service, subject to their fitness. He further submits that the fact that the applicant was eligible to be considered for promotion as Scientist (C) w.e.f. 01.01.2006 and further from Scientist (C) to Scientist (D) w.e.f. 01.01.2010 is not disputed at all. He draws attention to an OM dated 13.08.2013. The subject of the said OM reads as under:
4OA No. 2701/2015
(C-III, item -44) "Sub:- Grant of in-situ promotions under FCS - ante dating of dates of promotion-regarding."
3. This OM contains, as an annexure, a list of Scientists both working and retired, in the MoEF&CC giving the relevant dates of their actual promotion against the date of eligibility. In addition, the said list also contains a column which mentions the date on which antedating of the in-situ promotion is to be done. The name of the applicant figures at Sl. No. 42 of the said list and it clearly mentions the date of his eligibility for promotion to the post of Scientist (C) and Scientist (D) respectively as 01.01.2006 and 01.01.2010. Further, another column in the same list mentions that his in-situ promotion to the respective grade is to be antedated from these dates. Learned counsel argues that the basic fact of eligibility of the applicant not being disputed and on account of recommendations of the respondents vide the aforesaid OM, they have no option except to revise the order of promotion of the applicant from Scientist (B) to Scientist (C) so as to give him promotion w.e.f. 01.01.2006 and to further issue another order of his promotion to Scientist (D) w.e.f. 01.01.2010 along with consequential benefits.
5OA No. 2701/2015 (C-III, item -44)
4. Learned counsel draws attention to an order of this Tribunal dated 05.03.2012 in OA No. 1861/2010 titled Nakul Dev & Anr. Vs. Union of India & Ors. Learned counsel argues that the subject of the said OA was also FCS and therein the Tribunal had unambiguously held that even though assessment and promotion may have taken place at a later date, however, the actual benefits of the said promotion shall be extended with effect from the date the applicants attained the eligibility for the same. He further submits that while allowing the said OA and directing ante-dating of the promotion, the Tribunal had also directed release of all consequential benefits including financial arrears. He further draws support from orders passed in OA Nos. 2549/2015 & 3016/2015 wherein too, the Tribunal had held that entitlement for promotion will be from the date the person obtains eligibility for the same and accordingly, the promotion along with the consequential benefits has to be necessarily extended from such a date.
5. Mr. Ranjan Tyagi, learned counsel for the respondents, at the outset, raises a preliminary objection of limitation submitting that the claim of the applicant is of the year 2010 while he has filed this OA after a long lapse 6 OA No. 2701/2015 (C-III, item -44) of time. In our considered view it is too belated stage to raise this issue since the OA is now pending for about 10 years and pleadings since long complete. Accordingly, it is brushed aside.
6. Mr. Ranjan Tyagi, learned counsel for the respondents relying upon the specific averments made in the counter reply contests the OA as also the arguments put forth by the learned counsel. At the outset, he draws a distinction between the facts of the present OA with that of Nakul Dev's case (supra), upon which much reliance has been placed by the learned counsel for the applicant. He submits that in the Nakul Dev's case the assessment was to be made by virtue of an interview whereas the same is not the case here. As far as the applicant's promotion to the grade of Scientist (C) is concerned, the same has been accorded to him immediately after evaluation of his eligibility along with others and he should have no cause for any grievance. The issue of the applicant's claim for promotion to the post of Scientist (D) stands foreclosed since before the promotion could be made, the applicant retired. Accordingly, the benefit of promotion cannot be granted to a retired person.
7OA No. 2701/2015 (C-III, item -44)
7. Mr. Tyagi, learned places before us an order dated 08.05.2019 passed in OA No. 1408/2015 titled Dr. Satapathy vs. UoI & anr. He submits that an identically placed applicant had claimed ante-dating of his in-situ promotion under FCS in the said OA but the claim was considered to be devoid of any merit and the OA was dismissed. Mr. Tyagi, draws our attention to the relevant DoP&T OM governing the subject and further submits that the MoEF&CC had taken up the issue with DoP&T since the matter required the approval of ACC. A copy of the relevant communication is placed at Annexure R-5 to counter reply. He also draws our attention to Annexure R- 8, which categorically submits that ante-dating of promotion with respect to the Scientists who have already retired cannot be considered in terms of extant rules. Mr. Tyagi goes on to argue that this position has been elaborately explained in the counter reply specifically in para No. 6 under the heading "brief facts of the case"
clarifying that the promotion cannot be retrospective as that would be in contravention to the recruitment rules and instructions of the DoP&T. He submits that as clarified in para No. 9 of the counter affdavit, the matter was taken up with DoP&T for ante-dating the promotion and the DoP&T 8 OA No. 2701/2015 (C-III, item -44) gave a categorical advice that such an ante-dating could not be resorted to without the approval of ACC, which is the sole authority under the FCS. It would be worthwhile to quote from para 4.15 of the counter reply wherein the entire factual background of the case has been given and argued by the respondent No. 1 as also contents of para 4.23 to 4.25.
"4.15 That the contents of para 4.15 of this OA are wrong, false, and denied. It is submitted that the Ministry with the approval of the Competent Authority had issued an O.M No. 09/12/2012- P.III dated 24.05.2013 (Annexure R-3) regarding grant of benefit of antedating of in-situ promotions under FCS in respect of the Scientists of Ministry, including its Attached/Subordinate Offices, from their date of eligibility in the different grades of scientific posts.
Meanwhile, DoP&T vide their Dy No. 1046246/14/US(Estt. RR-II) dated 27 11 2014 (Annexure R-5) advised this Ministry to ensure not to implement order dated 24.05.2013 without approval of Appointment Committee of Cabinet (ACC), who is the competent authority for promotion under FCS. Accordingly, vide D.O. letter dated 11 12.2014 and 27.04 2015 (Annexure-R-4) requested the DoP&T for seeking the approval of the ACC for implementation of O.M. dated 24.05.2013 issued by the Ministry for granting the benefit of antedated promotions to the Scientists of the Ministry, including its attached/subordinate organizations. The decision of the ACC in the matter is still awaited.
4.23 to 4.25That the contents of para 4.23 to 4.25 are of this OA are wrong, false, and denied. It is submitted that the Ministry of Environment, Forest and Climate Change vide letter dated 4th October, 2013(Annexure-R-8) conveyed to all the Cadre Controlling Divisions to send the proposals of Scientists pertaining to their respective Division who are due for promotion from 11.2011 upto 1.1.2014 and whose cases have no relation with the antedating of in-situ promotion in the previous grade (i.e. the Scientists who are due for promotion to the next higher grade for the 1st time in their career.) 9 OA No. 2701/2015 (C-III, item -44) The in-situ promotion case of Dr Om Prakash, Scientist 'C' (retired) could not be considered along with the above mentioned cases due from 1 1.2011 upto 01.01.2014 as his case was covered for benefit of antedating promotion in the grade of Scientist 'C' as per O.M. dated 24.05.2013 issued by the Ministry of Environment, Forest and Climate Change and he had superannuated from the service when the OM dated 04.10.2013 (Annexure-R-8) was issued. The benefit of ante-dating of promotion for Dr. Om Prakash can be considered only after approval of the ACC for implementation of O.M. dated 24.05.2013 issued by the Ministry."
8. Learned counsel for the respondents concludes his arguments by drawing attention to annexure R-7, which quotes Rule 8.4, specifically stating that there should be no retrospective promotion.
9. We have heard the learned counsel for the parties at length and also gone through the pleadings on record. We have given due consideration to the different orders of this Tribunal relied upon by the respective parties. There is no dispute with respect to the facts of the case. There is also no dispute with respect to the eligibility and entitlement of the applicant for in-situ promotion to the grade of Scientist (C) and thereafter, Scientist (D). Therefore, since the facts have already been narrated above, we shall not be repeating the same.
10. The very limited issue calling for adjudication is whether promotion can be and should be antedated by 10 OA No. 2701/2015 (C-III, item -44) giving it from the date of eligibility or should it be only from the date orders of such promotion are issued. As far as the applicant's promotion as Scientist (C) is concerned, the same was ordered vide an order dated 13.07.2007 but promotion was given w.e.f. 02.07.2007. This means that the actual date of promotion was antedated for about 11 days. There may have been cogent reasons for the same, however, the order of promotion issued on 13.07.2007 does not disclose the same and it merely mentions that "The President is pleased to appoint the following Scientist in the Ministry of Environment and Forests to the post mentioned against names, on promotion under the modified Flexible Complementing Scheme (FCS), with effect from 2.07.2007 (forenoon) until further orders". The applicant's name figures at Sl. No. 4 in the table given below this order.
11. The OM dated 13.08.2013 has been issued by the MoEF&CC and it indicates details of Scientists for consideration of ante-dating of in-situ promotion. We reiterate that the subject of enclosed list is "ante-dating of in-situ promotion". The list contains as many as 51 names and this tabular list mentions the date of ante-dating of promotion of the applicant herein to the grade of Scientist (C) as 01.01.2006 and from Scientist (C) to (D) as 11 OA No. 2701/2015 (C-III, item -44) 01.01.2010. We find that it is a categorical recommendation of the respondent No. 1 that such an ante-dating of promotion should be done stating that the respondent No. 1, i.e., the cadre controlling authority of the applicant has sought the approval of respondent No. 2 for the same. We do appreciate the arguments put forth by the learned counsel for the respondents as also the averments made in the counter reply, but we find that no where has the claim of the applicant been opposed or contested. The sole reason being repeatedly stated for not extending the benefit of promotion from the due date is awaiting the decision of the ACC in the matter. In our considered view, this cannot be considered as a sufficient and enough reason to deny the claim, which has been expressly recognized and admitted.
12. Moreover, the issue has been conclusively adjudicated upon by a Coordinate Bench of this Tribunal in OA No. 1861/2010 vide order dated 05.03.2012. The said order was further affirmed by the Hon'ble High Court. In fact, there are consistent judgments to this effect by the Coordinate Benches of this Tribunal. No doubt, in OA No. 1408/2015, a similar claim was rejected by a Coordinate Bench of this Tribunal and learned counsel for the 12 OA No. 2701/2015 (C-III, item -44) respondents has relied upon the same. However, we find that facts and circumstances of the said OA would not be relevant herein as the applicant in that OA, at the relevant time, was in foreign service and not in actual service of the respondents so as to incur eligibility for FCS.
13. In view of what has been detailed herein above, the OA is allowed. As a sequel, the respondents are directed to forthwith issue the following orders:
(a) Amend the order dated 13.07.2007 vide which the applicant has been given promotion under FCS to the grade of Scientist (C) w.e.f. 02.07.2007 by granting such promotion w.e.f. 01.01.2006.
(b) Issue order with respect to the applicant's in-situ promotion to the grade of Scientist (D) w.e.f.
01.01.2010.
14. As a consequence of these directions, the applicant shall be entitled to all consequential benefits including, but not restricted to, financial benefits along with arrears that would accrue in his favour.
15. Directions contained herein shall be implemented in their totality within a period of ten weeks from the date of receipt of a certified copy of this order. Learned counsel for 13 OA No. 2701/2015 (C-III, item -44) the applicant does not pray for award of costs. Accordingly, there shall be no order regarding this.
(Pratima K. Gupta) (Tarun Shridhar)
Member (J) Member (A)
/as/