Central Administrative Tribunal - Delhi
Posted At vs Union Of India Through The Secretary on 20 May, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No. 1735/2014 New Delhi this the 20th day of May, 2014 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (A) Shyam Bihari Singh Scientist-G, Age 53 years S/o Shri Hari Bansh A-801, Swagat Apartments, Sector-62, Noida. Posted at: NIC HQ, CGO Complex, New Delhi. Applicant By Advocate: (Ms. Shiwani Mahipal for Shri R.K. Kapoor ) Versus 1. Union of India through the Secretary, Department of Electronics and Information Technology (Deity), Ministry of Communications & Information Technology, Govt. of India, Electronics Niketan, 6, CGO Complex, Lodhi Road, New Delhi. 2. The Director General, National Informatics Centre, Department of Electronics and Information Technology, Govt. of India, A-Block, CGO Complex, Lodhi Road, New Delhi. 3. The Secretary, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel & Training) Govt. of India, New Delhi. Respondents ORDER (ORAL)
Honble Mr. G. George Paracken, Member (J) The Applicant has filed this OA seeking 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 respective Applicant in the respective grades as per the details of the Applicant regarding his dates of eligibility to the various Grade, 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 along with arrears in the subsequent grades as well, 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 SLP (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;
(c ) direct the respondents to maintain uniformity in application of minimum residency period in all the grades; and any other relief/order which this Tribunal deems fit and proper in the facts and circumstances of the case may also be passed in favour of the applicant and against the respondents.
2. The learned counsel for Applicant has submitted that this case is squarely covered by the order of this Tribunal in OA No.826/2013 Dr. S.K. Murti & Ors. Versus Union of India & Anr. decided on 03.12.2003. The operative part of the said judgment of this Tribunal reads as under:-
6. We have heard the learned counsel of the parties and have perused the materials available on record carefully.
7. There is no dispute that the vacancies existed when the DRC considered the cases of the applicants for FCS. The sole question for determination is whether the applicants could be given benefits of such promotions under the FCS from the date when they became eligible for such promotions. In this connection we may refer to the basic OM dated 10.11.1998 which contains the provisions relating to FCS for scientists in various scientific departments. It provides that it has been decided that the FCS should, as per its original objective, be made applicable only to scientists and technologists holding scientific posts in scientific and technology departments and who are engaged in scientific activities and services. It has also been decided that assessment norms for promotions under the FCS should be rigorous with due emphasis on evaluation of scientific and technical knowledge so that only the scientists who have to then credit demonstrable achievements or higher level of technical merit are recommend for promotion under the FCS. In order to achieve the objectives, the revised FCS procedure has been presented in Annexure-II to the Scheme. This provided that all the officers will be first screened on the basis of gradings in the Annual Confidential Reports (ACRs) for consideration for promotion. In order to achieve the objectives, an external member has to be co-opted initially. It has further been provided that all the officers who are screened-in will be called for an interview. The performance in the interview will also be graded similarly on the same norms as for ACR. The minimum length of service has also been prescribed for the purpose. It is also noticed that the OM dated 17.07.2002 is only a clarification and not a new decision which could be enforced prospectively as has been claimed by the applicants. A reference could also be made to the judgment dated 23.10.2001 by the Full Bench of this Tribunal in the case of All India Postal Officers (Accounts) Associate on through the General Secretary and Others Vs. U.O.I. and Others in OA No.702/1997 and connected cases wherein it has been held that the promotions made subsequent to the holding of DPC would take effect only form the date of holding of DPC. The applicants have placed reliance on the decision of the Honble Supreme Court in State of Bihar Vs. Dr. Braj Kumar Mishra and Others 1999 (9) SCC 546 which is based on its own facts and it has been made clear that the decision in that case will not be made a precedent for others. Therefore, that can also not help the applicants. As has been pointed out earlier, the promotions of the applicants depended on their being found suitable and not only on the basis of record reflected in ACRs but also on the basis of qualifying in the interview. Unless the applicants are so screened and found suitable, they could not be held eligible for holding the post to which they have been promoted from a date prior to the date of such DPC/selection. We hold accordingly.
8. It may also be mentioned that the applicants in their rejoinder have stated that there has been delay in time bound promotions after successfully qualifying the interview. Though this aspect was not fully argued at the time of hearing but it is held that the applicants were entitled for notional promotion from the date of their being declared successful by the DPC/Selection Committee. The applicants could have made such prayer. Therefore, the respondents as a modal employer are directed to look into the matter in view of the law stated earlier.
9. Subject to the remarks as in the preceding paragraph and for the reasons discussed above, this OA is disposed of without any order as to costs.
3. She has also submitted that the aforesaid order was upheld the Honble High Court of Delhi in WP(C) No.14263/2004 S.K. Murti Vs. UOI & Ors. decided on 05.10.2010. The operative part of the said judgment reads as under:-
Learned counsel for the respondent who appears on advance copy being served states that the application may be allowed provided the writ petition is heard today itself. The writ petition is heard today itself.
The application is allowed and order dated 1.9.2010 is recalled. W.P. (C) No.14263/2004 is restored for disposal on merits.
1. Vide impugned judgment and order dated 3.12.2003 OA No.820/2003 filed by the petitioner was dismissed. Review whereof was declined vide order dated 14.1.2004.
2. The petitioner was promoted with effect from 19.9.2000 pursuant to the recommendation of a Departmental Review Committee which, after screening the names of eligible candidates, held them eligible to be promoted. Their claim was that they became entitled to be promoted with effect from 1.1.1996 and thus they should not be made to suffer on account of bureaucratic inefficiency and delay. Only one of them i.e. the petitioner remains to fight the battle.
3. It is not in dispute that the entitlement of the petitioner for being promoted endured with effect from 1.1.1999; but promotion was delayed on account of the fact that Departmental Review Committee was constituted late.
4. Office memorandum dated 17.7.2002 on which both parties rely, reads as under:-
The recommendations made by the Fifth Central Pay Commission for modifying the Flexible Complementing Scheme (FCS) in operation in scientific and technological departments for in situ promotion of scientific technical personnel with a view to removing the shortcomings/inadequacies in the scheme had been examined some time back and this Department in O.M. No.2/41/97-PIC dated 9.11.1998 had issued detailed guidelines modifying the then existing FCS. From a number of references received in this Department, it appears that an element of confusion exists in some scientific departments on the date from which in situ promotions under FCS are to be given effect. Promotions are made effective from a prospective date after the competent authority has approved the same. This is the general principle followed in promotions and this principle is applicable in the case of in situ promotions under FCS as well.
2. As a matter of fact, no occasion requiring application of promotion with retrospective effect should arise in FCS cases, as it is provided in the rules for scientific posts that the Assessment Boards shall meet at least once a year to consider cases of in situ promotions. Rules notified for scientific posts also contain a provision for review of promotion by the Selection Committee/Assessment Board twice a year before 1st January and 1st July of every year- and the Selection Committee/Assessment Board is required to make its recommendation on promotions keeping in view these crucial dates of 1st January and 1st July. The competent authority, which has to take a final view based on these recommendations, shall ensure that no promotion is granted with retrospective effect.
3. Hindi version will follow.
5. Suffice would it be to state that the memorandum requires Flexible Complementing Scheme in situ promotions to be effected each year and for which the circular mandates that the assessments should be made well in advance keeping in view the crucial dates being 1st January and 1st July with effect wherefrom the Flexible Complementing Scheme in suit promotions have to be effected.
6. The last sentence of para 20 is relied upon by the respondents to urge that the office memorandum clearly states that no promotion should be granted with retrospective effect. To this the answer by the petitioner is that the preceding two sentences makes it very clear that the Assessment Boards have to be constituted well in advance keeping in view the fact that 1st January and 1st April of each year are crucial dates to effect promotions.
7. Now, nobody can take advantage of his own wrong. Nothing has been shown to us by the respondents to justify not constituting the Assessment Board/Selection Committee in time.
8. That apart, instant case of promotion is not one where promotion has to be effected upon a vacancy arising. Subject to being found suitable the petitioner was entitled to be promoted in situ. The situation would be akin to granting a selection scale to a person and the date of eligibility would be the date wherefrom the benefit has to be accorded.
9. Under the circumstances we hold in favour of the petitioner and direct that the benefit granted to the petitioner be reckoned with effect from 1.1.1999 instead of 19.9.2000. Arrears would be paid within 12 weeks from today but without any interest.
10. No costs.
4. She has further submitted that the aforesaid order of the Honble High Court has been upheld by the Honble Apex Court vide its order in SLP No.13133/2011 Union of India Versus S.K. Murti dated 02.05.2011. The relevant part of the said judgment of the Apex Court is also reproduced below :-
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.
5. Further, according to her, this Tribunal itself has considered another similar case in OA No.1111/2012 Vinay Kumar Versus Union of India & Ors. and allowed the same vide order dated 27.09.2013. The operative part of the said order reads as under :-
6. Accordingly, we allow this O.A. and direct the respondents to consider granting benefit of promotion to Scientist-D and Scientist-E under the FCE Scheme to the applicant from the due date with all consequential benefits of pay fixation and payment of arrears as directed by Hon ble Supreme Court in the case of S.K. Murti (supra). This will be done within a period of six weeks from the date of receipt of a certified copy of this order. No costs.
6. In view of the above position, we dispose of this Original Application with the direction to the Respondents to consider the aforesaid reliefs sought for by the Applicant and in the light of the aforesaid orders/judgment to pass appropriate order under intimation to him. The Respondents shall comply with the aforesaid direction within a period of four weeks from the date of receipt of a certified copy of this order. No costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) /rk