Central Administrative Tribunal - Delhi
Mr. Hasan Abdullah vs Union Of India Through on 30 August, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No. 4328/2011 M.A. No.3244/2011 Reserved on:22.08.2013 Pronounced on:30.08.2013 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (A) 1. Mr. Hasan Abdullah S/o Mr. AWB Qadari, R/o 44-A, Okhla Village, New Delh-110025. 2. Mr. Nakul Dev S/o Mr. Nand Lal R/0 2796 Sector-7A, Green Park, Faridabad-121006. 3. Mr. M.L. Soni S/o Mr. G.R. Soni R/o 6, Arjun Nagar, PO Safdarjung Enclave, New Delhi-110029. .. Applicants (By Advocate: Shri Sachin Chauhan) Versus 1. Union of India through The Secretary to Government Of India, Ministry of Water Resources, Shram Shakti Bhawan, Rafi Marg, New Delhi-110001. 2. The Director, Central Soil and Materials Research Station, Olof Palme Marg, Hauz Khas, New Delhi-110016. 3. The Secretary, DOPT, Ministry of Personnel, Pension & Public Services, North Block, New Delhi. 4. The Chairman, U.P.S.C., Dholpur House, Shahjahan Road, New Delhi. ..Respondents (By Advocate: Shri H.K. Gangwani) ORDER
By Honble Mr. G. George Paracken, Member (J) The grievance of all the three Applicants in this joint application is that in an arbitrary manner they have been denied the arrears of pay and allowances even after ante-dating their dates of promotion to the grade of Chief Research Officer (CRO for short) with effect from 28.06.1995, 14.02.1995 and 05.06.1995 respectively even though, in a number of similar cases including the case of Applicants themselves when they were earlier promoted to the post of SRO after antedating their dates of promotions, the Respondents have paid the arrears in full.
2. The brief facts of the case are that the Applicants were originally appointed as Research Officers (Engineering) in the office of the second respondent, namely, the Central Soil and Materials Research Station (CSMRS for short), New Delhi with effect from 28.6.1985, 14.2.1985 and 5.6.1985 respectively. The next promotional posts for them are Senior Research Officer (SRO for short) and CRO. The promotion to both these posts are governed by the Central Soil and Materials Research Station, New Delhi (Group A Posts) Recruitment Rules, 1983. According to Rule 5(2) thereof, the departmental officers are governed by the system of Flexible Complementing Scheme (FCS for short) of in-situ promotion to the higher grades. Further, according to Rule 5(4) thereof, the departmental officers who have rendered regular service of not less than 5 years in the respective grade, may be recommended by the Board of Assessment for promotion to the next higher grade on the basis of the assessment of the record of service and interview, for evaluating their scientific contribution and achievements. The said rules are reproduced as under:-
Rule 5.(2) The system of flexible complimenting and in situ promotion shall be followed in the matter of promotion of departmental officers in the grades of Research Officer, Senior Research Officer and Chief Research Officer to the respective higher grads, namely, Senior Research Officer, Chief Research Officer and Joint Director.
Rule 5 (4) The departmental officers who have rendered, in the respective grade, regular service of not less than 5 years may be recommended by the Board of Assessment for promotion to the next higher grade on the basis of assessment of the record of service and also an interview for evaluating their scientific contribution and achievements.
3. However, the Respondents failed to follow the aforesaid rules to promote them as SRO from the due dates in February/June, 1990. Instead, they promoted them from January, 1994. They have, therefore, approached this Tribunal vide OA No. 1715/1995 and OA No.1716/1995. The aforesaid OAs were allowed vide order dated 14.10.1999 with its operative part as under:-
12. In the circumstances, the OA succeeds and the respondents are directed to promote the applicants retrospectively w.e.f. the date when Applicants completed 5 years of regular service in the grade of Research Officer and became eligible for promotion and to grant of all consequential benefits
4. The Respondents, challenging the aforesaid order, approached the Honble Delhi High Court in C.W.P. No.2456/2000 but, vide order dated 19.07.2000 it was dismissed in limine. The Respondents carried the case to the Honble Apex Court in Civil Appeal Nos.4973-4974/2001 but could not obtain any stay and the same was also dismissed vide judgment dated 14.11.2007. The Honble Apex Court noted thus:
Having heard the learned counsel for the appellants, we see no reason to interfere with the well merited finding of the High Court. The appeals being devoid of merit are accordingly dismissed.
4. Meanwhile, the Applicants filed C.P. No.681/2001 in the aforesaid OAs and after the order therein dated 18.3.2002, the Respondents vide their Office Order dated 15.4.2002 promoted the Applicants and other 6 similarly placed ROs as SROs retrospectively from the year 1990 with all consequential benefits including arrears of pay in the higher grade. The date of promotion of the Applicants were 28.6.190, 14.2.1990 and 05.06.1990 respectively. Thereafter, they became eligible for consideration for promotion to the post of CRO from the year 1995. However, the Respondents as in their earlier case did not promote them as CROs from the due dates but only w.e.f. 11.10.2006 vide the order of the same date. Therefore, the Applicants were constrained to approach this Tribunal again vide OA No.1810/2007 seeking direction to the Respondents to promote them as CROs retrospectively from the due dates in the year 1995. As this Tribunal found that their case was squarely covered by the principle followed in their earlier OA filed by them vide 1715/1995 and OA No.1716/1995, this Tribunal, vide order dated 09.07.2009, directed the Respondents to promote them as CROs with effect from the date they became eligible for such promotion in the year 1995 under the FCS of in-situ promotion. The relevant part of the said order reads as under:-
10. In view of the above discussion, the OA succeeds and Respondents are directed to promoted the Applicants with effect from the date they became eligible for promotion as CRO in 1995 under the FCS of in-situ promotion. The above direction shall be complied with within six weeks from the date of receipt of a certified copy of this order. There will be no order as to costs.
5. Accordingly, vide order dated 17.2.2010, the Respondents promoted all the three Applicants herein retrospectively from 28.6.1995, 14.2.1995 and 05.06.1995, respectively. They have also issued identical office orders dated 30.03.2010 in respect of all the Applicants herein, fixing their pay as CROs with effect from aforesaid dates with the entitlement to receive the arrears. However, subsequently, vide their impugned order dated 06.10.2010, the Respondents modified their aforesaid order dated 30.03.2010 and re-fixed their pay under FR 22 (1)(a) (2) and further decided that arrears to them would be paid only w.e.f. 11.10.1996, i.e., the date of actual assumption of the charge of the post of CRO in term of FR 17. The Applicants made representation against such refixation of their pay but they were rejected by the impugned identical orders dated 19.09.2011. The Applicants have challenged those impugned orders dated 06.10.2010 and 19.09.2011 in this Original Application seeking a direction to the Respondents to grant them arrears of pay and allowances between the period antedating of in-situ promotion to the grade of CRO as per order dated 17.2.2010, when they actually assumed the charge of the grade of CRO with all consequential benefits.
6. In this regard, the learned counsel for the Applicants Shri Sachin Chauhan invited our attention to the case of a similarly placed official, Shri N. Sivakumar who had also approached this Tribunal seeking the similar relief based on the aforesaid order of this Tribunal in OA No. 1810/2007 (supra) filed by the Applicants themselves. The said OA was allowed by this Tribunal vide order dated 24.2.2011 with a specific declaration that the Applicant therein would be entitled for consequential benefits which would accrue to him according to the Rules. The Applicants have, therefore, made representation that they cannot be denied the benefit of pay and allowances to the grade of CRO from the date of antedating of the promotion with all consequential benefits of pay and allowances irrespective of the actual assumption of the charge and FR 17 would not apply in their cases.
7. The Applicants have relied upon another order of this Tribunal in OA No.143/2008 filed by one Dr. Rajbal Singh seeking similar reliefs and this Tribunal, vide order dated 19.12.2010, directed the Respondents to convene review DPC for in situ promotion under FCS and if found fit, to promote him from the due date with all consequential benefits including arrears of pay and allowances. The Respondents duly complied with the aforesaid order also and antedating his promotion with all consequential benefits including arrears of pay and allowances.
8. Thereafter, Dr. Rama Devi Mehta and Another, Dr. V.K. Choubey and Dr. Rajendra Prasad Pandey & Another working in the National Institute of Hydrology, Roorkee filed OA Nos. 2321/2008, 2322/2008 and 2323/2008 respectively before this Tribunal seeking similar reliefs and this Tribunal vide Order dated 18.8.2009, held that the stand taken by the Respondents therein that only those who had gone to the court would get the desired relief was not acceptable. This Tribunal has also stated that the Respondents, as a model employer, ought to have implemented the judgment in similar cases on their own. This Tribunal was also of the view that in such circumstances, the Respondents should have been burdened with costs but it was not imposed because when the matter came up before this Tribunal, they realised their mistake agreed to grant the reliefs to the Applicants therein correct. They have also by a subsequent order antedated not only their dates of promotion from the dates of completion of their qualifying service, but also in the case of remaining 12 other similarly placed Scientists.
9. The Respondents have filed their reply stating that as per FR 17 the Applicants would be entitled for pay and allowances only from the date they assumed charge of the post as per FR 17. In this regard, they have relied upon the OM No.AB-14017/36/2011-Estt.(RR) dated 21.09.2012 issued by the Ministry of Personnel, Public Grievances and Pension, Department of Personnel & Training stating that under the FCS, promotion is not effected upon arising of a vacancy. However, it is made subject to Scientists concerned being found suitable to be promoted under in situ. The relevant part of the said OM reads as under:-
3. This Department has received a number of proposals from various Ministries/Departments on the issue of antedating the promotion/ retrospective promotions under FCS based on court orders, etc. The delay in assessment for promotions is cited on account of various administrative reasons, non availability of ACRs., etc. The Hon'ble Courts/Tribunal while giving directions for giving promotions from a retrospective date have made references to the provisions of the DOPT OM dated 17.7.2002 which requires in situ promotions under FCS to be effected each year and mandates timely assessments should be made well in advance keeping in view the crucial dates. Attention is also invited to the DOPT instructions vide OM No. 21011/02/2009-Estt (A) dated 16th February 2009 which prescribes the Time Schedule for preparation of Confidential Reports by the various Ministries/Departments. Delay in convening of Assessment Board meetings due to administrative reasons leads to delayed promotions which in turn has a bearing on subsequent promotions also.
4. Under FCS, promotion is not effected upon arising of a vacancy. Subject to being found suitable, the Scientists are entitled to be promoted in situ. The guidelines however lay down that assessment norms for promotions under the FCS should be rigorous with due emphasis on evaluation of scientific and technical knowledge so that only scientists who have to their credit demonstrable achievements or higher level of technical merit are recommended for promotion. Giving the benefit of promotions from a retrospective date or from the date of completion of residency period without timely assessment as prescribed in our guidelines would dilute the spirit of FCS instructions on rigorous assessment and would be akin to granting of financial upgradation as in other such schemes.
5. The Ministries/Departments may bring the above to the notice of all concerned for necessary action and strict compliance.
10. We have heard the learned counsel for the Applicants, Shri Sachin Chauhan and the learned counsel for the Respondents, Shri H.K. Gangwani. In our considered view, the Respondents have taken a very obstinate and illogical stand in refixing the pay of the Applicants under FR 17 saying that they will be paid the pay and allowances of the promoted post only from the date they have assumed its charge thereby denying them the arrears of pay and allowances from the due dates of their promotion to the post of CRO. Further, it is seen that the Respondents themselves were well aware that the Applicants were entitled for arrears of pay and allowances between the period they became due for promotion and the actual dates as in exactly similar situation, when they were promoted as SRO, the Respondents have granted them all arrears. That was also preciously the reason why the Respondents on their own correctly fixed their pay in terms of the provisions under FR 22 (1)(a)(I) vide Office Order dated 30.03.2010. But for unexplained reasons, they modified the aforesaid Office Order in an arbitrary manner and without notice to the Applicants vide the impugned identical Office Orders dated 06.10.2010. The irony of the situation is that the Applicants themselves were the first three employees who were instrumental in challenging the inaction of the Respondents in granting them in-situ promotion under the FCS and successfully got their promotions as SRO antedated from the respective due dates with all consequential benefits under the order of this Tribunal. Subsequently, a number of similarly placed Scientists from their own Research Station as well as from other institutions approached this Tribunal seeking similar benefits based on the order of this Tribunal and in their cases, they got favaourable orders including arrears and all other consequential benefits. But in the case of the Applicants alone, the Respondents took the arbitrary stand that they will be governed by FR-17 and they will get the higher pay and allowances in the promoted post only from the date of assuming its charge. Such an action on the part of the Respondents is in total violation of equality and fair play. As a result, the Applicants are forced to approach this Tribunal again seeking the consequential benefits from the date of antedating of their promotion as CRO in spite of the direction of this Tribunal in its Order dated 9.7.2009 in OA No. 1810/2007 (supra) wherein the Respondents were directed to promote them with effect from the date they became eligible for promotion as CRO in 1995 under the FCS of in-situ promotion.
11. In a similar case, this Tribunal has observed that in such cases, heavy cost should be imposed on the respondents who are not considering such cases when similarly placed persons have been given antedated promotion and arrears of pay and allowances. However, this Tribunal did not impose any cost as, on their own, they realized their mistake and they expressed their preparedness to promote those Applicants with all consequential benefits. In this case, the Respondents are still adamant and they still hold that the Applicants are not entitled for such reliefs. Moreover, we have seen that this is 4th round of litigation by the Applicants for their entitled promotions and it has become a habit for the Respondents to grant the reliefs to the Applicants only if the Courts direct them to do so.
12. We, in the above facts and circumstances of the case, quash and set aside the impugned orders dated 6.10.2010 (colly) and 19.09.2011 (colly). We also direct the Respondents to pay the applicants all the consequential benefits including arrears of pay and allowances on their antedated promotion to the post of CRO with effect from their respective dates of promotion, i.e. w.e.f. 28.6.1995, 14.2.1995 and 05.06.1995. Considering the facts that the Applicants were discriminated in the matter of payment of arrears of pay and allowances on such antedating and for no reason they were dragged into litigation once again incurring expenses, we hold that the respondents are also liable to pay a cost of Rs.3000/- each to the Applicants in the present OA and ordered accordingly. The aforesaid directions shall be complied with, within a period of one month from the date of receipt of a copy of this order.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
Rakesh