Central Administrative Tribunal - Delhi
Posted At vs Union Of India on 29 May, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH : NEW DELHI
OA No.1926/2013
Reserved on: 18.02.2014
Pronounced on: 29.05.2014
HONBLE SHRI SUDHIR KUMAR, MEMBER (A)
HONBLE SHRI A.K.BHARDWAJ, MEMBER (J)
Dr. A Duraisamy, Scientist-F
S/o Late Sh. N. Arumugam
R/o A-163, Pandara Road,
New Delhi-110003
Posted at
Ministry of Environment & Forests,
Govt. of India,
Paryavaran Bhawan,
CGO Complex, Lodhi Road,
New Delhi-110001. Applicant
(By Advocate: Shri R.K.Kapoor with Ms.Shivani Mahipal)
Versus
Union of India, through the Secretary,
Ministry of Environment & Forests,
Govt. of India, Paryavaran Bhawan,
CGO Complex, Lodhi Road,
New Delhi-110001. Respondent.
(By Advocate: Shri R.N.Singh)
ORDER
Per Mr.Sudhir Kumar, Member (A) The applicant of this OA is working as Scientist F posted in the Ministry of Environment and Forests, Government of India. He is aggrieved and has approached this Tribunal on account of denial to him of uniform application of residency period in implementation of Flexible Complementary Scheme (FCS, in short), according to which, the in situ FCS promotion has to be granted on completion of the prescribed minimum residency period, subject to fitness. The grievance of the applicant is that he was due for promotion in terms of FCS much prior to the date from which he has actually been granted such promotion. He has claimed that this decision is contrary to the judgment of the Honble Delhi High Court dated 05.10.2010 in CWP No.14263/2004 in the case of Dr.S.K.Murti vs. Union of India & Others, a copy of which has been produced by him at Annexure A-2, and the judgment of the Honble Apex Court delivered on 02.05.2011 in SLP (Civil) No.13133/2011 (C.C.6864/2011) in Union of India and Another vs. S.K.Murti, by which the judgment of the Honble Delhi High Court had been upheld.
2. The applicant has submitted that since the benefit under FCS Scheme has to be extended on completion of minimum residency period, the respondents are bound to maintain uniformity in the said residency period, and denial of the benefit under FCS from the date it became due, more particularly when he was assessed and found fit, is for no fault of him, and is solely attributable to the respondents. He has claimed that the actions of the respondent-authority are in violation of the Honble Apex Courts orders dated 02.05.2011 in Union of India and Another vs. S.K.Murti (supra) and are also violative of the principle to maintain uniformity in the matters of residency period, which decision is based upon the recommendations of the 5th Central Pay Commission (5th CPC, in short).
3. The applicant was appointed as Scientist D in the respondent-Ministry on 15.02.1989, and he was eligible and was assessed for promotion to the grade of Scientist E from 01.01.1994. His grievance is that he was, however, promoted to the grade of Scientist E only on 29.03.1995, even though the Departmental Screening Committee (DSC, in short) had recommended his case for promotion from the antedated due date i.e. from 01.01.1994, resulting in a delay of 14 months and 28 days. Thereafter, the applicant was assessed for promotion under the FCS to the grade of Scientist F as on 01.01.2000, whereas according to him, as per the residency criteria of five years from 01.01.1994, he should have been assessed for such promotion from 01.01.1999. Later on, he got promoted to the grade of Scientist F with effect from 31.03.2001, which according to him, once again resulted in a delay of 15 months.
4. The applicant has submitted that pursuant to the recommendations of the 6th CPC, the Department of Personnel and Training (DoP&T, in short) has vide OM dated 10.09.2010 introduced a modified FCS, modifying the earlier notified FCS vide OM dated 09.11.1998. In his pleadings, the applicant had sought to be equated with the applicants of OA 826/2003 titled as Dr.S.K.Murti & Others vs. Union of India and Another, which was disposed of by this Tribunal vide order dated 03.12.2003, after which the said Dr.S.K.Murti alone had approached the Honble Delhi High Court, and the sequence of events leading to the Honble Apex Courts orders already mentioned above in Union of India and Another vs. S.K.Murti (supra) came to be passed. He has, therefore, submitted that as an order has now been passed, and upheld by the Honble Apex Court that the Assessment Boards have to be constituted well in advance, keeping in view the fact that 1st January and 1st July of each year are crucial dates to effect FCS promotions, the law has now been settled by the Honble Apex Court that the promotions have to be granted from the date of eligibility, and, in fact, the Honble Apex Court had further ordered for the same benefit to be allowed to all similarly placed persons.
5. The applicant had thereafter relied upon the order of this Tribunal dated 22.05.2012 in OA 4098/2011, filed by Dr. Mohd. Asrarul Haque and Five Others vs. Union of India and Another. He has submitted that these latest orders of this Tribunal have also already been implemented by the respondents, by antedating their respective promotions, by giving the applicants of that OA benefit under FCS, and in proof thereof he had produced a copy of the order dated 26.03.2013 (Annexure A-5). The applicant has assailed the action of the respondents in not granting to him the benefit of in situ promotion under the FCS on the exact date of completion of minimum residency period, and thus not implementing the law, as laid down by the Honble Apex Couert in its judgment dated 02.05.2011 in Union of India and Another vs. S.K.Murti (supra), in which it was held that all similarly placed persons may be allowed the same Benefit.
6. He had, therefore, prayed that the respondents are required to be directed to consider granting him all consequential benefits, in the subsequent grades as well, including the payment of arrears, and to suitably modify the dates of in situ promotions by antedating the same from the exact dates when the required minimum eligibility period was completed by the applicant. He had already represented in this regard to the respondent-Union of India on 16.08.2012 through Annexure A-8, and when no reply was received, another representation dated 25.02.2013 had been submitted through Annexure A-9.
7. Further grievance of the applicant is that 8 officers in the respondent-Ministry who were junior to him had been promoted as Scientist G, and some others who were more than five months junior to him were promoted as Scientist F on 27.09.2001, because of which, subsequently both of them had got promoted as Scientist G on 20.12.2012 and 30.12.2013 respectively under FCS. He has also pointed out that apart from these, six other officers, who are junior to him by 4 = years, were also promoted as Scientist G under FCS with effect from 06.09.2012, but for the reasons best known to the Administration, even though he was senior to all of them, his case had not been considered for assessment. He also submitted that one of the 6 applicants of OA No.4098/2011 in Dr.Mohd. Asrarul Haque (supra) was promoted to the grade of Scientist F from the grade of Scientist E on 29.03.1995 along with the applicant, but now, while the case of Dr.Mohd. Asrarul Haque has been considered for promotion as Scientist G, based on the order of this Tribunal, the case of the applicant has not been considered.
8. The applicant had invited a reference to the Minutes of the Meeting of the Committee of the Secretaries held on 04.06.2012, in which it was decided that till the time the Scientific Departments develop a cadre based structure for Scientists, so that a normal channel of promotion could become available to these officers, for which a time-limit should be laid down, the cases of Scientific officers that merit promotion, but do not fulfill the FCS norms relating to innovation and field experience, may be recommended by the Administrative Ministry, clearly giving details of work being handled by them and justifying the need for their promotion. The applicant had, thereafter, rephrased and re-worded these contentions in Grounds 5A to 5Q of this OA, which we need not reproduce here once again. The main contention raised in those grounds is that the respondents-Union of India are not maintaining uniformity in individual departments, while all the rules and regulations have to be uniformly & equally applied to all similarly placed employees, when the principle underlying is not being followed, whereby they are making classes of employees, without any intelligible differentia, & are treating equals as unequals, and some are granted relief in some cases, while others are being denied. Further ground taken by him was that when they have been working with the same Ministry, and orders of this Tribunal have already been implemented in respect of others, in respect of the applicants of a particular OA, by antedating their respective promotions, the respondents are liable to be directed to consider and grant the benefit of FCS to the applicant as well, with all consequential benefits, in the subsequent grades. He had also alleged that his case had not been considered for assessment, when DRC met to consider promotion of eligible officers to various grades under FCS. In the result, therefore, he had prayed for the following reliefs:
(a) direct the respondents to consider and grant the benefit of FCS to the Applicant, with all consequential benefits in the subsequent grades as well, and to suitably modify the dates of in situ promotion by antedating the same from the dates when the eligibility period was completed by the applicant in the respective grades as per the details of the applicant regarding his dates of eligibility to the Grades, actual date of in situ promotion to the said Grade and the dates w.e.f it should have been granted as mentioned in the CHART annexed as Annexure A-6 with the OA;
(b) direct the respondents to consider and grant the benefit of FCS to the Applicant, with all consequential benefits in the subsequent grades as well, including payment of arrears, and to suitably modify the dates of in situ promotions by antedating the same from the dates when the eligibility period was completed by the Applicant in the light of the orders of Honble Supreme Court dated 02.05.2011 as passed in S.L.P. (Civil)-6864/2011 titled as U.O.I. vs S.K. Murti in view of the provisions of Articles 141 and 144 of the Constitution of India, and the clarification given by the Ministry of Law, particularly when juniors have been granted;
(c) direct the respondents to maintain uniformity in application of minimum residency period in all the grades, particularly when juniors have been granted, and relief should be granted from the date of eligibility and in no case later than the date when juniors were granted the in situ promotions in corresponding grades;
(d) any other relief/order which this Honble Tribunal deems fir and proper in the facts and circumstances of the case may also be passed in favour of the applicant and against the respondents;
(e) award costs of a senior has to face; the proceedings.
9. The respondents filed their counter reply to the OA on 01.11.2013, explaining the rules position, and they made the following submissions:
(i) That as per Rule 8.2 of the Department of Environment, Forests and Wildlife Scientific Group A posts Rules 1987 (Annexure R-1), as amended from time to time, review for Promotion by the Departmental Review Committee under Flexible Complimenting Scheme (FCS), shall be done twice a year, i.e. before 1st January and 1st July of every year. The cases of those who have completed or will complete 5 years of service in a post during the period of 3 months before or 3 months after the 1st January or 1st July, as the case may be, are considered as on that date for review for promotion to the next higher grade.
(ii) The effective dates of promotion for those found eligible for promotion shall be 1st January or 1st July.
(iii) Rule 8.4 of Department of Environment, Forests and Wildlife Scientific Group A posts Rules, 1987, stipulates that there shall be no retrospective promotion.
(iv) Rule 8.3 of the aforesaid Rules further stipulates that where an eligible Scientist is not physically available within the Department for review, due to his being on deputation or foreign service in India, or abroad, his case shall be considered in the immediate review falling due after his return to the Cadre.
(v) Rules 8.5 of the aforesaid Rules further stipulates that a person holding a scientific post who is not found fit for promotion after any review, shall become due for the next review only after a lapse of one year from the date of first review.
(vi) That as per the provisions contained in the Department of Personnel & Training O.M. No. 2/41/97-PIC dated 09.11.1998 (Annexure R-2) governing the Flexible Complementing Scheme (FCS), the Scientists are required to undergo a two-tier system of evaluation for ascertaining their suitability for promotion. The first stage involves a preliminary screening of the Scientists on the basis of their Annual Confidential Reports (ACRs), and the second stage is that of interview- the second stage being open only for those Scientists who qualify in the first stage of screening.
(vii) The Scientists who do not qualify in the screening will be considered again after the lapse of one year.
10. Thereafter, the respondents had explained the criteria for screening as prescribed in DoP&T OM No.2/41/97-PIC dated 09.11.1998 (Annexure R-2), and the criteria of selection by interview, and the procedure for assessing the ACRs for screening, as also prescribed by the same DoP&T OM dated 09.11.1998. The respondents had raised preliminary objection to the OA by submitting that no cause of action had accrued to the applicant to file the present OA, inasmuch as in his case neither any policy decision, nor any rule has been violated, and, therefore, the OA deserves to be dismissed. They also submitted that the OA is hopelessly barred by limitation, delay and latches, and, therefore, also it deserves to be dismissed.
11. They had pointed out that through this OA, the applicant has sought promotion from Scientist D to E with effect from 01.01.1994 in place of 29.03.1995; further from Scientist E to F with effect from 01.01.1999 in place of 31.03.2001, and has sought further promotion from Scientist F to G with effect from 01.01.2004, whereas he had filed the OA under reply in May/June, 2013, entailing the delay of 19 to 9 years in seeking the concerned reliefs, since the applicant has sought promotions stated to have become due to him on intervals of five years in three different grades. It was submitted that the OA is not maintainable on the ground of his seeking multiple reliefs in view of provisions of Rule 10 of the CAT (Procedure) Rules, 1987.
12. It was further submitted that even though the applicant has submitted that many of his juniors have been promoted as Scientist G, and he has been discriminated again, however, he has not impleaded anyone as parties-respondents in the OA. Therefore, it was argued that the OA is not maintainable for non-joinder of necessary parties.
13. It was pointed by the respondents that the applicant had through his application dated 25.09.2012 (Annexure R-3), which he has failed to produce as part of his OA, requested that since he had completed 10 years service in the grade of Scientist F with effect from 31.03.2001, which promotion was granted to him under FCS, he is now eligible for grant of financial upgradation under the Modified Assured Career Progression (MACP, in short) Scheme with effect from 31.03.2011. In support of his contention regarding his eligibility for financial upgradation under MACP Scheme, he had quoted the following part from the modified FCS, notified through OM dated 10.09.2010, which states as follows:
The modified ACP as approved for Central Government Civilian Employees would also be applicable to Scientists covered under FCS. This is expected to provide an alternate channel of development for Scientists and is expected to maintain the rigours of assessment required for assessment under FCS.
14. It was submitted that his request for such 3rd financial upgradation under MACP was considered favourably, and through order dated 30.01.2013, Annexure R-4, he had already been granted MACP in the Grade Pay of Rs.10000/-, i.e. Grade Pay of Scientist G post. In regard to the previous occasions, it was submitted that his FCS assessment to the grade of Scientist G could not be assessed by the DSC, due to non-availability of his ACRs for the relevant residency period, because he had not submitted the duly filled in ACR Forms, with his resume, to the concerned Reporting Officers, for assessment of his performance in the grade of Scientist F for the concerned residency period. In support of this contention, the respondents had produced through Annexure R-6 (Page 162 of the Paper Book) minutes of the meeting of the Department Screening Committee, in which it was recorded that his case could not be considered due to non-availability of his ACRs. It was pointed out that the applicant had submitted his ACRs formats in respect of periods from 01.08.2002 to 31.03.2003 and 01.04.2003 to 16.09.2003 only on 13.09.2006 to Dr. V.Rajgopalan, Chairman Central Pollution Control Board, who then entered his remarks in the capacity of Reporting Authority only on 16.04.2007.
15. The respondents had through Annexure A-9 once again shown that the applicant had submitted his ACRs belatedly for the period from 01.10.2003 to 31.03.2004 and 01.04.2014 to 15.11.2004 only on 14.10.2006, and through Annexure R-10, they had shown that he had submitted his Confidential Report for the period from 01.04.2006 to 31.03.2007 only on 04.02.2011, and the Confidential Report for the period from 01.04.2007 to 31.03.2008 only on 07.02.2011, and the Performance Appraisal Format for the period 01.04.2007 to 31.03.2008 and 01.04.2008 to 31.03.2009 only on 21.09.2012, and for 01.04.2009 to 31.03.2010 only on 07.02.2011, and that he had submitted his ACR format for the year 01.04.2010 to 31.03.2011 only on 03.06.2011. The respondents had produced Annexure R-11 to show that his ACR could not be thereafter reviewed or accepted, as Reviewing Authority had demitted the office, or Accepting Authority had demitted the office, and only in respect of the period from 01.04.2010 to 31.03.2010, the Reporting Authority, Special Secretary MoEF Shri J.M.Mauskar, had reported upon his performance, but the Accepting Authority had superannuated on 31.12.2010, because of which his ACR could not be reviewed/accepted.
16. It was submitted that Rule 8.4 of Department of Environment, Forests and Wildlife Scientific Group A posts Rules, 1987, specifically stipulates that there shall be no retrospective promotion. The DoP&T OM No.14017/32/2002-Estt (RR) dated 17.07.2002 also stipulates that promotions can be made only from a prospective date, after the Competent Authority has approved the same. It was submitted that, therefore, the in situ promotions to various grades in respect of Dr. A.Duraisamy were effected from the date of approval of the Competent Authority, as per rules, and the allegations made by the applicant are false, misleading, and devoid of any merit, and do not deserve consideration. It was accepted that after the applicant having been promoted to the grade of Scientist F with effect from 31.03.2001 with the approval of the Competent Authority, even as per the FCS norms, the applicant had become due for promotion to the grade of Scientist G as on 01.01.2006. However, as no ACRs of his were available for assessing his case for promotion to the grade of Scientist G as on 01.01.2006, or on 01.01.2007, as he had not submitted his resume in ACR forms as per time schedule to the concerned Reporting Officers, his case could not be considered by the Departmental Screening Committee for grant of in situ promotion to the grade of Scientists G as on 01.01.2006, for want of his ACRs for the relevant residency periods. It was submitted that when the applicant himself had delayed in completing his ACRs, which is a necessary pre-requisite for consideration for promotion, he cannot blame the respondents for not considering him timely for promotion, in view of the settled proposition of law that one cannot derive benefit out of his own wrong.
17. The respondents still processed his case for promotion to the grade of Scientists G before DSC as on 01.01.2007, which again could not consider his case, due to non-availability of ACRs for the relevant residency period. For the same reason, his case could not be placed before DSC as on 01.07.2008, and onwards also. It was, therefore, submitted that since his ACRs for the period 2001-2002 are not available, and for the period 2002-2003 and 2003-2004 (01.04.2003 to 16.09.2003) have not been reviewed by the Reviewing Officer, his claim for consideration as an exceptionally meritorious candidate, with relaxation, as per DoP&T OM dated 10.09.2010, does not good hold, and is false, misleading and devoid of any merit.
18. They had thereafter described the case of Dr.S.K.Murti and 10 other Scientists, whose OA No.826/2003 was disposed of by this Tribunal on 03.12.2003, after which the said Dr.S.K.Murti had approached the Honble Delhi High Court in Writ Petition No.14263/2004, in which Honble High Court had in its order dated 05.10.2010, at Annexure R-6, directed that the benefit granted to the petitioner be reckoned from the retrospective date, i.e. 01.01.1999, instead of from 19.09.2000, and had directed that arrears be paid within 12 weeks from that date, but without any interest. When the matter was carried before the Honble Supreme Court through SLP (C) No.13133, C.C.No.6864/2011, the Honble Supreme Court had vide its order dated 02.05.2010 dismissed the SLP, and the petitioners were directed to give Dr. S.K.Murti all the benefits on the basis of his deemed promotion w.e.f. 01.01.1999, and the Honble Apex Court had further directed that similar order may be passed in respect of all similarly situated 10 other persons, despite the fact that they may not have approached the High Court questioning the order passed by the Tribunal in O.A. No.826/2003 filed by 11 applicants joining together. It was submitted that the Honble Supreme Courts order in S.K.Murtis case has already been implemented vide order dated 21.07.2011 at Annexure R-18 in respect of Dr. S.K.Murti and 10 other of his co-applicant Scientists of Botanical Survey of India, who had, together, filed O.A. No.826/2003.
19. However, six other Scientists of the Ministry had later filed OA No.4098/2011, titled as Dr. Md. Asrarul Haque & Others vs. Union of India in the Principal Bench of this Tribunal, and had prayed that they may also be allowed ante-dated in situ promotions in each grade, from the due dates, as has been given to Dr.S.K.Murti & 10 Others, as per the judgment of the Honble High Court of Delhi in WP(C) No.14263/2004 dated 05.10.2010, which was upheld by the Honble Apex Court in SLP (C) No.6864/2011 dated 02.05.2011, and as per the orders of the Tribunal in that OA 4098/2011, their case has also already been processed as per the FCS guidelines, and antedating orders in respect of these scientists, wherever applicable, have also been issued vide order dated 26.03.2013.
20. It was further submitted that in view of these two judgments of Dr.S.K.Murti (supra) and Dr.Md.Asrarul Haque (supra), another OA 2892/2013 Dr.Sujata Arora & Others vs. Union of India & Others, had also been filed claiming extension of similar benefits of antedating of in situ promotions from the due dates. Also, on the same issue some more petitions had also been filed, i.e. OA No. 106/2013 in Mumbai Bench, OA No.498/2012 in Allahabad Bench, and OA No. 626/2012 in Hyderabad Bench of this Tribunal. These three OAs pending before the Mumbai Bench, Allahabad Bench and Hyderabad Bench have also since been transferred to the Principal Bench, New Delhi.
21 It was further submitted that keeping in view the already decided Court cases, and the judgment and order passed in OA No.4098/2011, the Competent Authority has since accorded blanket approval for grant of in situ promotions to the Scientists in the Ministry in each grade(s) from their due date(s)/eligibility date(s) from 01.01.1999 and onwards, and has accordingly issued an OM dated 24.05.2013, Annexure R-19. It was submitted that individual orders of in situ promotion under FCS flowing this blanket approval in respect of Scientists of the Ministry, including its attached and subordinate offices, would be issued after considering their due dates of eligibility in the different grades.
22. It was further submitted that though the Honble Apex Courts order in Dr.S.K.Murtis case covers only those 10 other Scientists of Botanical Survey of India, who were his co-applicants before this Tribunal in OA No.826/2003, but had not approached the Honble High Court, and whose matters were not under consideration before the Honble Supreme Court, but the Honble Supreme Court had in its orders directed to extend the benefit of promotion to those 10 other Scientists at par with Dr. S.K.Murti. It was further submitted they had not promoted Dr. S.K.Murti and 10 other Scientists from the due dates under FCS. Hence, the claim of the applicant for his entitlement to be considered for promotion from the date he became due for in situ promotion does not deserve any consideration, in view of the Honble Apex Courts judgment dated 02.05.2011 (applicable for only Dr.S.K.Murti & 10 others who were his co-applicants before this Tribunal), and would rather flow from the blanket orders now passed through OM dated 24.05.2013 Annexure A-19, which states as follows:
No.09/12/2012-P.III Government of India Ministry of Environment and Forests 9th Floor, Paryavaran Bhavan, CGO Complex, Lodi Road, New Delhi-110003.
Dated the 24th May, 2013 OFFICE MEMORANDUM Subject: Ante-dating of in-situ promotions under Flexible Complimenting Scheme (FCS) in respect of Scientists of this Ministry including its attached and subordinate offices from their due date of eligibility in the different grades of Scientific posts.
The undersigned is directed to refer to the subject mentioned above and to convey that the Competent Authority has accorded approval for grant of in-situ promotions in each grade(s) to the Scientists of the Ministry from their due date(s)/eligibility date(s) from 01.01.1999 onwards, keeping in view the Judgments delivered in various court cases filed by the Scientists of this Ministry.
2. The pay of the Scientists, who are due for ante-dating their in-situ promotion in each grade from their due date/eligibility date shall, however, be fixed on notional basis without any payment of arrears, where such promotions are belatedly granted to them. All such ante-dating of in-situ promotion in each grade shall be subject to clearance from vigilance angle.
3. However, those Scientists who could not be either cleared/screened by the Departmental Screening Committee or not recommended in the interview for appointment to the next higher grade in-situ promotion under FCS as on their due date(s)/eligibility date in each grade, shall not be entitled for ante-dating of their in-situ promotion from their date of eligibility/due date. Such Scientists shall be eligibility to be considered for in-situ promotion after a gap of one year as per rules. Further, if they are recommended for in-situ promotion to the immediate next higher grade, they shall be eligible for in-situ promotion from their actual date of eligibility after completion of one year gap period, as the case may be.
4. All the concerned authorities are accordingly, requested to take immediate action in the matter and ensure to verify from the respective Service Books/Records of the Scientists concerned their date(s) of eligibility/due date(s) in each grade before issuing ante-dating orders to effect their in-situ promotions under FCS in the relevant grade(s). They are also requested to send the proposals complete in all respects to this Ministry in respect of those Scientists, who become due/eligible, for their in-situ promotion under FCS due to ante-dating of their promotion in the previous grade(s), to assess their suitability by the Departmental Screening Committee (DSC) and Departmental Peer Review Committee (DPRC) for consideration of their in-situ promotion in the next grade(s) due under FCS. (Emphasis supplied)
23. It was pointed out that in its judgment and order dated 22.05.2012 in OA 4098/2012, this Tribunal had directed that the pay of the six Scientists, who were applicants of that OA, shall be notionally fixed from the date of antedating of their in situ promotions in each grade, wherever found eligible, and there shall be no arrears paid for such notional fixation of their pay from the antedate in each grade, except in respect of Ms.Madhumita Biswas, one of the six applicants, who had filed OA No.4098/2011.
24. It was submitted that since the case of the present applicant, Dr. A. Duraisamy, could not be considered by the DSC for promotion as Scientists F and G due to absence of his ACRs, he had made an alternative prayer to the respondents, and requested that he may be considered for 3rd financial upgradation to the grade of Scientist G under the MACP. Thereafter, his case has been considered accordingly by the DSC, and he was found suitable, after assessment of his late written ACRs, and MACP, as prayed for by him, was granted to him in the grade of Scientist G with effect from 30.03.2011, vide office order dated 22.01.2013. It was, therefore, submitted that since his case for FCS benefits could not be considered by the DSC in the absence of his ACRs forms, he had already been provided the benefit of 3rd MACP, to the same grade of Scientist G, and he cannot now be allowed to claim for antedating of his in situ promotion at par with the six Scientists covered under the FCS by the judgment dated 22.05.2012 in OA 4098/2011. It was further submitted that the other judgments relied upon by the applicant are out of context, and are not applicable, and the present OA is devoid of merit, and deserves to be dismissed with cost against the applicant, and in favour of replying respondents.
25. The applicant filed his rejoinder on 06.12.2013, and more or less reiterated his contentions, as raised in the OA, and had denied the contentions raised by the respondents in the counter reply. He had again submitted that consideration of his case to the grade of Scientist E under FCS was delayed by 15 months from the due date of eligibility from 01.01.1994, and that he was assessed for promotion to the grade of Scientist F from 01.01.2000, whereas he should have been assessed from 01.01.1999, the due date of his FCS eligibility, as already described in detail above. He had again claimed for antedating of two in situ promotions of Scientist E and Scientist F on the basis of due dates of eligibility under FCS, and had assailed the action of the respondents in not having considered his case, even though six other officers, junior to him in the grade of Scientists, were considered and promoted as Scientist G in proper time. It was reiterated that since he has been denied uniform application of residency period by the respondents in implementation of the FCS, due to which, he had to suffer delay of 30 months from the due date of eligibility for his two promotions, and his case has not at all been considered for the next higher grade of Scientist G in time, in spite of his fulfilling all the criteria required for promotion. He had submitted that he had given representations regarding his claim for promotion from the grade of Scientist F to Scientist G under FCS from the due date, but no action has been taken on those representations, and pending consideration of his claim under FCS, when an alternative request was made by him for grant of 3rd financial upgradation under the MACP Scheme, that has been granted to him, since modified FCS Scheme has been made applicable in respect of the Scientists covered under the FCS for the purpose of promotions, but MACP benefits are granted to those who have not been granted promotion under the FCS. His grievance was reiterated that while the residency period for FCS is five years, the MACP is granted after completion of 10 years in a particular grade, and the Scheme further states that MACP is only a financial upgradation, involving only change of Grade Pay, and does not entitle the applicant for change of designation also to Scientist G.
26. He had shifted the blame for non completion of his ACR/APARs on time onto the respondents, who ought to have ensured timely completion of ACRs/APARs which they had not done, because of which, his case could not be assessed for FCS by the DSC. It was further submitted that the DoP&T OM dated 17.07.2002 referred to by the respondents is not relevant in his case, as he had submitted his ACRs/APARs for the relevant residency period, well in time, and their completion was later not ensured by the respondents, while it is the duty of the Reporting/Reviewing Officers to ensure that the reports in respect of their Subordinate Officers are completed by them in time. He had submitted that his case is not of retrospective promotion, but is only for the antedating of his two in situ promotions, from the grade of Scientist E to the grade of Scientist F from the due date of eligibility, and the consideration of FCS promotion to the grade of Scientist G from the due date of eligibility. He had claimed that the Honble Apex Courts order in Dr. S.K.Murti (supra) covered his case also, and that the benefit of the same had not been provided to him by the respondents, for reasons best known to them. It was submitted that that Dr. Md. Asrarul Haque, who was promoted as Scientist F on the same date as the applicant, had been considered for FCS promotion as Scientist G, while even though the applicant is senior to him, his case was not considered for FCS assessment. Other contentions raised in OA were repeated once again, and it was submitted that the request for grant of financial upgradation under MACP had been made by way of only an alternative prayer, due to consideration of his promotion under FCS having been kept pending by the respondents. Therefore, he had prayed for that OA be allowed.
27. During the course of the arguments, learned counsel for the applicant had filed a compilation of judgments and OMs issued by the Ministry of Environment and Forests, which read as follows:
1) Dr.S.K.Murti & 10 Others vs. Union of India through Secretary, Ministry of Environment and Forests and Another, in OA 826/2003 decided on 03.12.2003.
2) Dr.S.K.Murti vs. Union of India & Others in CWP No.14263/2004 decided by the Honble Delhi High Court 05.10.2010.
3] Union of India and Another vs. S.K.Murti, decided by the Honble Apex Court on 02.05.2011 in SLP No.13133/2011.
4. Dr.V.S.Rao Chintala & Others vs. Union of India through Secretary to the Government of India, Ministry of Earth Sciences and Others passed in OA 2296/2009 decided on 04.08.2010.
5. Shri Vijay Kumar vs. Secretary, Department of Electronics Information Technology, Ministry of Communication Secretary to the Government of India, Ministry of Earth Sciences and Others passed in OA 1111/2012 decided on 27.09.2013.
6. A copy of Office Memorandum dated 20.12.2013 issued by the Ministry of Environment and Forests.
7. A copy of Office Memorandum dated 15.03.2013 issued by the Ministry of Environment and Forests.
8. A copy of Office Memorandum dated 26.03.2013 issued by the Ministry of Environment and Forests.
9. A copy of Order dated 26.03.2013 issued by the Ministry of Environment and Forests.
10. A copy of Notification dated 26.03.2013 issued by the Ministry of Environment and Forests.
11. A copy of Order dated 21.07.2011 issued by the Ministry of Environment and Forests.
28. About two weeks after the case was reserved for orders on 18.02.2014, learned counsel for the applicant also submitted a copy of the judgment dated 21.02.2014 passed by a Coordinate Bench in OA No.1809/2013 Iqbal Hasan and Others vs. Union of India & Others, which has also been perused by us.
29. We have given our anxious consideration to the facts of the present case. The respondents had in turn relied upon the case of Union of India & Others vs. M.K.Sarkar, 2010 (2) SCC 59, to buttress their arguments that repeated representations cannot give rise to a fresh cause of action. They had also relied upon the judgment of S.S. Rathore vs. State of Madhya Pradesh, AIR 1990 SC 10, to support their submissions in this case, and had also produced a copy of the Honble Apex Courts orders in CC No.3709/2011 decided on 07.03.2011 in D.C.S. Negi vs. Union of India & Others, and had pressed for the aspect of delay and latches on the part of the applicant in filing of this OA to be considered first.
30. The case of the applicant, in a nutshell, is that there had been a delay of 15 months at the time of his being granted promotions as Scientist E and Scientist F in the past. We find that as per the DoP&T OM dated 09.11.1998, governing the Flexible Complementary Scheme, the Scientists are required to undergo a two-tier system of evaluation for ascertaining their suitability for promotion, and only those Scientists, who qualify in the first stage of screening on the basis of their Annual Confidential Reports, the second stage, that of interview, is resorted to, and the case of those Scientists who do not qualify in the screening, are considered again after the lapse of one year. Further, the residency periods, as prescribed, are the minimum residency periods, and not the maximum. The claim of the applicant has to be considered after completion of the minimum residency period, and if he does not qualify even in the screening, his case can then be considered again only after the lapse of one year, as he is not eligible for being included in the second stage of FCS evaluation, comprising of interview. Therefore, when the applicant himself had not submitted his ACRs in time, and his ACRs/APARs were missing for the first stage of preliminary screening, the applicant cannot now be allowed to claim that the respondents have adopted unknown or unwarranted procedure for considering his case under FCS.
31. Further, Rule 8.4 of the Department of Environment, Forests and Wildlife Scientific Group A posts Rules, 1987, clearly stipulates that there shall be no retrospective promotion, which aspect has been reiterated also by the DoP&T OM dated 17.07.2002, that the promotions are made effective only from a prospective date, after the competent authority has approved the same. Even if they have to be given from an earlier date due to the orders of the Court/Tribunal, normally such orders clearly indicate that such antedated fixation of salary will be done only notionally, and no arrears of salary will be payable, and that actual disbursement of enhancement of entitlement due to such promotion due takes place only from the date the competent authority gives the approval for such promotion.
32. We have carefully gone through the orders passed by the Honble Apex Court dated 02.05.2011 in C.C.No.6864/2011 in SLP (C) No.13133/2011, in Union of India and Another vs. S.K.Murti, in which the Honble Apex Court had noted that the respondent Dr.S.K.Murti and 10 other Scientists of Botanical Survey of India had filed OA 826/2003 before this Tribunal, praying for directing the petitioners to promote them with effect from the dates of their eligibility under FCS, i.e. 01.01.1999. The Tribunal had dismissed the Original Application, and held that in view of the clarification given in the FCS OM dated 10.11.1998, the applicants were not entitled to the promotion with retrospective effect. Writ Petition No. 14263/2004 was filed before the Honble Delhi High Court against the order of the Tribunal by only Dr.S.K.Murti, and, as a result, the said Dr.S.K.Murti was the only respondent before the Honble Apex Court, when it considered the SLP (C) No. 6864/2011, CC No.13133/2011 and decided it on 02.05.2011. Therefore, while dismissing the said SLP, the Honble Apex Court passed the following orders:
This petition is directed against order dated 5.10.2010 passed by the Division Bench of the Delhi High Court whereby the writ petition filed by the respondent against the order passed by the Principal Bench of the Central Administrative Tribunal (for short, `the Tribunal') dismissing the original application filed by him for issue of a direction to the petitioners herein to promote him under the Flexible Complementing Scheme (FCS) with effect from the date of eligibility was allowed.
We have heard Smt. Indira Sawhney, learned counsel for the petitioners and Mr. Jitendra Mohan Sharma, learned counsel for the respondent, who has entered on caveat and carefully perused the record.
The respondent, who was working as Scientist Grade-D in the Botanical Survey of India became eligible for promotion under FCS with effect from 1.1.1999. However, on account of delayed convening of the Departmental Review Committee/Selection Committee, his promotion was delayed and by an order dated 20.10.2000, he was promoted with effect from 19.9.2000.
The respondent and 10 other Scientists of Botanical Survey of India filed Original Application No. 826/203 for directing the petitioners to promote them with effect from the date of eligibility, i.e. 1.1.1999. The Tribunal dismissed the original application and held that in view of the clarification given in O.M. Dated 10.11.1998, the applicants were not entitled to promotion with retrospective effect. The review petition filed by the respondent was dismissed by the Tribunal vide order dated 14.1.2004. However, Writ Petition (C) No.14263/2004 filed by the respondent was allowed by the Division Bench of the High Court and the petitioners were directed to give him all the benefits on the basis of deemed promotion with effect from 1.1.1999.
In our view, reasons assigned by the High Court for directing the petitioners to promote the respondent with effect from the date of acquiring the eligibility are legally correct and the impugned order does not suffer from any legal error warranting interference under Article 136 of the Constitution.
It is not in dispute that vacancies existed when the Departmental Review Committee considered the case of the respondent and other similarly situated persons for promotion. It is also not in dispute that in terms of paragraph 51.25 of the Vth Pay Commission Recommendations, the Departmental Review Committee/Assessment Board was required to meet every six months, i.e. in January and July and the promotions were to be made effective from the date of eligibility. Therefore, it is not possible to find any flaw in the direction given by the High Court.
The special leave petition is accordingly dismissed.
Since the time fixed by the High Court for compliance of the direction given by it has already expired, we direct the petitioners to do the needful within four weeks from today. Similar order shall be passed for all similarly situated persons despite the fact that they may not have approached the High Court questioning the order passed by the Tribunal. This direction is being given to avoid further litigation in the matter.
(Emphasis supplied)
33. It is clear from the above highlighted sentence in the order of the Honble Apex Court that the direction given was not in rem, but was only in personam, in respect of the 10 co-applicants of Dr. S.K. Murti, who had not approached the Honble High Court challenging the order passed by the Tribunal in OA No.826/2013, ordering that similar order may be passed in respect of all similarly situated persons, despite the fact that they may not have approached the High Court questioning the order passed by the Tribunal and could have related only to the other earlier portion of the Apex Courts order, in which it was noted that the respondent S.K.Murti had filed OA 826/2003, which OA had been dismissed by the Tribunal, and against which a Writ Petition No14263/2004 had been filed by Dr.S.K. Murti. Therefore, the directions of the Honble Apex Court in respect of similarly situated persons related in personam to only 10 co-applicants of Dr. S.K.Murti in the OA 826/2003, and cannot at all be meant to extend in rem to the Scientists of all the Scientific Ministries and Departments, of all over the country, who were not at all party in the case of Union of India vs. S.K.Murti (supra), as appears to have been viewed by the Coordinate Benches, while deciding the OA No. 1111/2012 and OA No. 2296/2009.
34. Therefore, while we beg to disagree with the conclusion arrived at by the Coordinate Benches that the Honble Apex Courts order in the case of Union of India vs. S.K.Murti (supra), was in rem, the benefit of which can be claimed by all the Scientists of all the Scientific Ministries and Departments of Government of India, who can all claim the same benefit, without consideration of their case on merits, and we also do not agree that the Honble Apex Courts order could automatically be applied to all the Scientists of Ministry of Environment & Forests, Govt. of India, since we are of the view that those directions were in personam, and were limited to only the 10 co-applicants of Dr S.K.Murti in OA 826/2003, who had not approached the Honble Delhi High Court, and were, therefore, not party before the Honble Apex Court, as party-respondents, but still, in view of the Honble Apex Courts orders, in K.Ajit Babu & Others vs. Union of India & Others, AIR 1997 SC 3277, and SI Roop Lal & Anr vs. Lt.Governor through Chief Secretary Delhi & Others (2000) 1 SCC 644, we are bound by these orders passed by the Coordinate Benches.
35. However, MA 2926/2011 had been filed by the co-applicants of Dr. S.K.Murti, who were applicants in the OA 826/2003, namely Dr. J.R.Sharma and Dr.H.J.Chowdhery, and their MA was disposed off through order dated 12.03.2014, passed by another Coordinate Bench, in which one of us [Member (A)] was a party to the judgment. During the hearing of that MA, the respondents had produced a copy of the OM dated 24.05.2013, in which also, a decision regarding the antedating of in situ promotions under FCS in respect of Scientists of Ministry of Environment of Forests, and including its attached offices, from the dates it was due, to the eligibility in the different grades of Scientists, had been taken. The said OM, which was produced in the order dated 12.03.2014 in M.A.No.2926/2011, has already been reproduced in para 22/above.
36. Therefore, since now the respondents themselves have taken a policy decision in regard to antedating of in situ promotions, which O.M. dated 24.05.2013 has not been noticed by the Coordinate Benches in their judgments in the OAs mentioned above, those orders are sub silentio, in so far as the rule position prevailing as on the date, even though both these judgments had been pronounced after the OM dated 24.05.2013 had been issued, without taking notice of that. Therefore, these Coordinate Benches judgments, which are sub silentio as to the correct prevailing rule position as on date of pronouncement of the orders are not binding upon us.
37. We, therefore, direct that the case of the present applicant Dr. A.Duraisamy should be considered by the respondents in terms of the latest OM dated 24.05.2013, and appropriate orders may be passed, making it clear that if he is found to be eligible for grant of ante-dated promotion under FCS, from the appropriate date in respect of Scientist G, the benefit of 3rd MACP to the grade of Scientist G already granted to him, shall be withdrawn or adjusted against any dues which may accrue to him, after such in situ FCS promotions having been antedated.
38. With this, the OA stands disposed of, but there shall be no order as to costs.
(A.K. Bhardwaj) (Sudhir Kumar) Member (J) Member (A) /kdr/