Central Administrative Tribunal - Delhi
Shri Sohan Lal Gupta vs Union Of India Through on 1 November, 2011
Central Administrative Tribunal
Principal Bench
OA No.1492 of 2010
MA No.1260 of 2010
New Delhi, this the 1st day of November, 2011
Honble Mr. Justice V.K. Bali, Chairman
Honble Dr. Ramesh Chandra Panda, Member (A)
1. Shri Sohan Lal Gupta
Aged about 49 years
S/o Shri Ram Gopal
R/o 98, Om Vihar, Phase IA
Shiv Shankar Road,
Uttam Nagar
New Delhi-110005
2. Shri Rajeev Kumar, aged about 49years
S/o Shri D P Gupta
R/o I- 145, Sarojini Nagar
New Delhi 110023. Applicants
(By Advocate Shri Sachin Chauhan )
VERSUS
1. Union of India through
Secretary,
Ministry of Water Resources,
Shram Shakti Bhawan,
New Delhi-1
2. Director,
Central Soil & Materials Research Station,
Ministry of Water Resources, Olof Palme Marg,
Hauz Khas, New Delhi-110016.
3. Secretary
DOP&T
Ministry of Personnel, Pension & Public Grievances
North Block
New Delhi
4. The Chairman,
Union Public Service Commission,
Dholpur House, Shahjahan Road,
New Delhi-110089. Respondents
(By Advocate: Shri Krishna Kumar)
: O R D E R :
Dr. Ramesh Chandra Panda, Member (A) :
The applicants are seeking directions to the Respondents to promote them to the grade of Chief Research Officer (CRO) under the Flexible Complementing Scheme (FCS) with effect from June 1995, when they completed five years in the grade of Senior Research Officer (SRO) and became eligible for promotion to the higher grade and not from 11.10.2006 when they were actually promoted. They are seeking the benefit of the judgment dated 9.07.2009 in OA number 1810/2007, in which the similarly placed applicants were given the relief, which the applicants herein are seeking in this OA. Their representation in this regard has been rejected by the Respondents by the impugned order dated 19.11.2008 and 12.2.2010 on the ground that benefit of the aforesaid judgment in OA No.1810/2007 cannot be given to them because the were not a party in that OA. The applicants have come to the Tribunal with following relief(s):
(A) Allow this Original Application of the Applicants with costs;
(B) To set aside the impugned orders with the direction
(i) That the applicants be granted the benefit of the judgment of the Honble Tribunal in OA No.1810/2007.
(ii) That the promotion of the Applicants from the post of Senior Research Officer to the post of Chief Research Officer should have been with effect from Sept., 1996 when the applicants became eligible for promotion, after completing 5 years of service in the grade of Senior Research Officer, under the Flexible Complementing Scheme (of in situ promotions), and not with effect from October 11, 2006 as the Applicants have not been promoted;
(iii) To antedate the promotions of the Applicants with effect from Sept., 1996 as provided under the Flexible Complementing Scheme of in situ promotion with all consequential benefits, including seniority, promotion and pay & allowances.
(C) pass such other and further order or orders, direction or directions as this Honble Tribunal may deem fit and proper in the facts and circumstances to meet the ends of justice.
(i) Any other relief which this Honble court deems fit and proper may also be awarded to the applicant. The facts of the case are that the applicants initially joined as Research Officers (RO) under the Central Soil and Materials Research Station (CSMRS), the second respondent, with effect from 2.9.1986 on direct recruitment to the post. The post is governed by the Central Soil and Materials Research Station, New Delhi (Group A) Posts Recruitment Rules, 1983 (the RR-1983). The higher posts in the hierarchy are Senior Research Officer (SRO) and Chief Research Officer (CRO), which are filled up by promotion from RO and SRO respectively, with five years of regular service in the respective grade. Rule 5 (2) of the Recruitment Rules, 1983 provides that FCS of in situ promotion will be adopted for promotion in the grade of RO to SRO and from SRO to CRO. Rule 5 (4) provides that departmental officers, who have rendered regular service of not less than five years in the respective grade, 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 interview for evaluating their scientific contributions and achievements. The FCS is applicable to the CSMRS by virtue of being declared as scientific / technological institution. The applicants completed five years of service in the grade of RO in September 1991 and became eligible for promotion to the grade of SRO. However, the applicants were promoted to the post of SRO w.e.f. 10.01.1994. The applicants and some similarly situated scientists of the 2nd Respondent approached this Tribunal in OA Nos.1715/1995 (Hasan Abdullah and another V. Union of India and another) and 1716/1995 (Nakul Dev and others V. Union of India and another). The applicants in the present OA were the applicants in OA number 1716/1995. The OA number 1715 of 1995 was decided in favour of the applicants therein on 14.10.1999, directing the respondents therein to promote the applicants retrospectively with effect from the date when they completed five years of regular service in the grade and became eligible for promotion and grant all consequential benefits. OA No.1716/1995, in which the applicants were also party, was decided on 18.01.2000, being covered by the judgment in OA No.1715/1995, in the same terms. The respondents approached the Honourable Delhi High Court in Writ Petition (C) No.2456/2000, challenging the order of this Tribunal in OA Nos.1715 and 1716 of 1995. The Writ Petition was dismissed in limine. The SLP filed against the judgment of the Delhi High Court was dismissed by the Supreme Court. It was only after further directions in CP No.681/2001 to comply with the judgment of the Tribunal in OA Nos.1715/1995 and 1716/1996 that the directions were complied with by order dated 15.04.2002 of the first Respondent, promoting the applicants in the aforesaid OAs to the grade of SRO vide order dated15.4.2002 and gave effect from 10.01.1994. Arrears of pay were also given. It is the case of the applicants that they having completed 5 years in SRO post became eligible for promotion to the post of CRO with effect from 10.1.1999.The applicants and other similarly situated persons were asked by the 2nd respondent by the OM dated 14.06.1999 and 13.09.2000 to submit their bio-data for consideration for promotion to the next higher grade of CRO. Again in January 2003 the 2nd Respondent asked the applicants to send bio-data in the prescribed form up to 31.12.1995 and bio-data supplement for each subsequent year up to 2002. Similar request was sent in May 2006 to submit the bio-data up to 1995 and thereafter for each subsequent year up to 31.12.2005. The applicants submitted bio-data as desired, but the assessment did not take place. At last the selection for the post of the CRO was held on 27.09.2006 and following the assessment, the applicants were promoted to the grade of CRO from 11.10.2006 and not from the due date, that is, September 1996. They gave representations for promoting them as CRO from 1996 but the representations were rejected by Memorandum dated 19.11.2008 indicating that promotion cannot be given with retrospective effect. It is further their case that meanwhile, similarly placed scientists, who were also the applicants in OA Nos.1715/1995 and 1716/1995, namely, Hasan Abdullah, Nakul Dev, M L Soni and others approached this Tribunal in OA No.1810/2007 seeking ante-dating of their promotion to the grade of CRO to 1995, by virtue of the fact that their promotion to the grade of SRO had been antedated to June 1990 on the directions of this Tribunal and upheld by the Delhi High Court and Honourable Supreme Court. The Tribunal by its judgment dated 09.07.2009 directed that the applicants in OA No.1810/2007 should be promoted with effect from the date they became eligible for promotion to the grade of CRO in 1995. The Respondents complied with this direction by order dated 17.02.2010, whereby the applicants therein were promoted to the grade of CRO from 1995. By a representation dated 05.01.2010 the applicants sought the benefit of the judgment in OA No.1810/2007, praying that they should also be promoted to the grade of CRO from 1996, as similarly placed scientists had been given the benefit of retrospective promotion. The representation was rejected by the impugned order dated 12.02.2010 on the ground that the applicants were not party to the OA 1810 of 2007.
Shri Sachin Chauhan learned counsel for the applicants highlighted that the case of the applicants is exactly the same as the applicant in OA No. 1435/ 2010 decided by the Tribunal on 24-2-2011 in the case of Shri N. Sivakumar versus Union of India and Others. He also cited the similar grievances already redressed in the case of National Institute of Hydrology (NIH), The Ministry of Water Resources has held in case of the scientists of NIH that the benefit of antedating of seniority should also be given to the scientists, who were not parties to the Original Applications, whereby the benefit of retrospective promotion was given to five scientists of the NIH. The applicants have placed on record, in the rejoinder affidavit, the order dated 04.02.2010, by which 5 scientists of the NIH were given antedated promotion from their respective anniversary dates, that is, the date of completing the qualifying service, on the directions of this Tribunal in OA number 2321/2008 with two other related OAs decided on 18.08.2009. By order dated 13.09.2010, in continuation of the office order dated 04.02.2010, adverted to above, the effective date of promotion of the 12 remaining scientists of NIH, who were not parties to any litigation, was also antedated to the date of completion of their qualifying service. The applicants in the instant OA are claiming the benefits of the Judgment of the Tribunal in OA No.1810/2007 which has been adopted in the judgment of the Tribunal in the matters of Shri N Sivakumar (supra) in OA No. 1435/2010 decided on 24.02.2011. He urges that the present OA should be allowed in terms of the judgment in Shri N Sivakumars case (supra).
On the other hand, the respondents have filed their reply affidavit and clarified the guidelines in respect of the promotion of SROs to CRO. The main condition for in situ promotion is that there should be vacancies in the CRO posts for the appropriate year when the applicants become eligible. Further there should be assessment as per the FCS. He further contends that the NIH has a scheme different from the respondents. Under NIH all posts in the FCS insitu promotion are 100% with no links to vacancies whereas in case of the respondents the insitu promotion from RO to SRO is 100% but from SRO to CRO the insitu promotion is vacancy based which was removed only in the amended RR of 2010. Shri Krishna Kumar learned counsel representing the respondents would submit that the case of the applicant is fully covered by the latest judgment of the Tribunal in the case of Shri D N Bera and others versus Secretary, Ministry of Water Resources and others [OA No.1076/2007 decided on 11.10 2011].
5. It is noted that the relevant Recruitment Rules for the adjudication of the controversy are the Central Soil and Materials Research Station, New Delhi (Group-A) Posts Recruitment Rules, 1983 (RR-1983) notified on 29.10.1983 under the proviso to the Article 309 of the Constitution of India. Though, there is a reference to the amended fresh RR issued in the year 2010, the RR 1983 covers the field. RR 1983 being the relevant statutory Rules in the present case, the extract of the relevant Rules 5 (2), 5(3) and 5 (4), are reproduced below :-
I. Rule 5(2) of the aforesaid Rules is extracted below:
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 grades, namely, Senior Research Officer, Chief Research Officer and Joint Director. II. Rule 5(3) envisages the restrictive provision which reads as follows:-
At any given point of time, the number of posts in the grade of Joint Director and Chief Research Officer shall not exceed 30% of the total number of posts in the grade of Research, Senior Research Officer, Chief Research Officer and Joint Director put together. The number of posts in the grade of Joint Director shall not exceed 30% of the total number of posts in the grade of Joint Director and Chief Research Officer put together. The cut off date is 31st December of the year for consideration in the immediate following panel year. III. Rule 5(4) has also been reproduced below:
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 the assessment of the record of service and also an interview for evaluating their scientific contribution and achievement.
6. In the context of the above Rule position, it is apt to mention that RR-1983 of CSMRS envisages the identification of number of vacancies in different grades for the purpose of promotion as the RR mandates that at any given point of time the number of posts in the grade of Joint Director and Chief Research Officer shall not exceed 30% of the total number of posts in the grades of Research Officer, Senior Research Officer, Chief Research Officer. It would have been for the 1st and 2nd respondent to identify number of vacancies available for operating the in situ Promotion under FCS every year from 1997 to 2005. Admittedly, there were number of vacancies in these years (1996-2005), which were collectively taken in the year 2006 selection process. It could be possible for the 1st and 2nd respondents to work out for those years and find out who were eligible for the respective years. Further, it is trite law that when the DPC or Selection Committee meets to consider promotion for more than one year, the DPC/Selection Committee is legally duty bound to draw up panel for promotion for each year taking into account those who fall in the consideration zone for the respective years. DOP&T and UPSC are well aware of such well settled position in law. Thus, in our considered view, bunching of vacancies of CRO from 1997 to 2005 for one time mode is legally untenable.
7. In this regard, we may briefly touch upon the FCS vis a vis CSMRS RR of 1983. It is not in dispute that the FCS for in situ promotion is provided for scientific departments and organizations including the Ministry of Water Resources. The CSMRS was declared scientific institution by office memorandum dated 28.12.1983. The FCS, inter alia, provides that it would ensure that promotion of an officer in scientific service from one grade to the next higher grade would take place after a prescribed period of service on the basis of merit. In the present case, it is provided that 5 years of service as SRO is required to become eligible for FCS in situ promotion to CRO. Though it was contended by the counsel for the applicant that FCS in situ promotion should take place irrespective of the occurrence of vacancy in the higher grade, it is noticed from the pleadings that on the basis of the Scheme made applicable to Group A services/cadres in scientific departments under the Government of India by letter dated 22.11.1983 of the Department of Science and Technology, irrespective of vacancy clause was not clearly applicable for this organization mainly due to restrictive provisions in Rule 5(3). It is noted that the Rule 5(3) does not prescribe vacancy in a higher grade per se. It only limits number of posts in a group to be 30% of their strength. It is seen that this limiting factor did not act against the interest of the applicants in those years. But bunching of vacancies for so many years have deprived the applicants to be considered in the concerned years for in situ promotion under FCS. Therefore, in our considered opinion, the applicants cannot suffer for administrative reasons of delay in holding the Assessment Board.
8. We may, however, refer to the Flexible Complementing Scheme (FCS) which has been in operation in the Government of India for promotion of the Scientists in different grade and the guidelines have been issued by the Department of Personnel & Training (DOP&T) which are applicable for all the Departments and more so in the Ministry of Water Resources. With a view to removing short comings and inadequacies in the Scheme, a detailed Office Memorandum dated 9.11.1998 was issued by the DOP&T spelling out the procedure to be adopted for promotion from Grade-A to Grade-G. From time to time the DOP&T has issued clarifications. Further clarifications have been issued by the Department of Personnel and Training (DO&PT) in OM No.AB-14017/32/2002-Estt.(RR) dated July 17, 2002. Counsel for the Applicants referred to the said OM to submit that the Respondents have violated the said DOPT OM as the Promotion Panels were not prepared every year. Thus, the OM dated 17.7.2002, we find, is very relevant for adjudication of the second issue for in situ promotion under FCS. The said OM reads as follows :-
No.AB-14017/32/2002-Estt(RR) Government of India Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) OFFICE MEMORANDUM Subject : - Flexible Complementing Scheme for scientists in Scientific and Technological Departments-Date of effect of promotions.
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.
9. The above OM goes forward to state that review by the Selection Committee/Assessment Board should take place twice a year. Hence, we are of the opinion that in situ promotion panel under FCS could have been drawn year wise from 1997 to 2005 even in the Selection process which was undertaken by UPSC in the year 2006
10. The next issue for our consideration is whether the selection process adopted by UPSC for in situ promotion to CRO grade confirms to the FCS prescribed procedure. As already contended by the Counsel for the UPSC, it adopted two phase selection process. First phase was screening of officers under consideration by a Screening Committee where CRs preceding five years were considered. At this stage, infirmity crept in. In the sense those who were eligible in the years of 1997, 1998, 1999 would automatically be eligible for consideration in the subsequent years on the point of five years of residency period. However, in case of some of the SROs, who came to the post of SRO in the year 1997, 1998 and 1999 would be eligible for consideration on the appropriate dates, but they were not even fulfilling the 5 years residency criteria in the position of SRO in those years. Hence, there is logic in the contention advanced for the applicants that some ineligible SROs were considered in the Screening Committee/Assessment Board which met in 2006. On this count, the selection process has been vitiated.
11. Another aspect needs our reference, relates to the DOP&T OM dated 9.11.1998 and clarifications issued by DOPT in OM dated 15.11.2000 and 29.11.2002. One of the clarifications in the OM dated 29.11.2002 inter alia stipulates the reduction of criteria of marks at the time of 1st opportunity from 90% to 85%. Annexure-II to the OM dated 9.11.1998 provides the following criteria for considering promotion under FCS which is extracted below:-
(a) All officers will be first screened on the basis of gradings in the Annual Confidential Reports (ACRs) for consideration for promotion; the ACRs should be assessed on a 10 point scale giving 10 marks for outstanding, 8 marks for very good, 6 marks for good, 4 marks for average and 0 for poor and only those officers who satisfy the minimum residency period linked to their performance as indicated in the table below be screened in.
Number of years in the grade 3 4 5 6 7 8 Minimum percentage for eligibility Scientist B to 90% 80% 70% 65% 60% .
Scientist C (85%) Scientist C to .. 90% 80% 75% 70% 60% Scientist D (85%) Scientist D to ... 90% 80% 75% 70% 60% Scientist E (85%) Scientist E to . .. 90% 80% 75% 70% Scientist F (85%) Scientist F to .. 90% 80% 75% 70% Scientist G (85%)
Exceptionally meritorious candidates with all outstanding gradings may be granted relaxation in the residency period, the relaxation being not more than one year on any single occasion. Such a relaxation will be limited to a maximum of two occasions in their entire career.
(b) As the procedure adopted for assessment of CRs in various Scientific Departments differ at present, it has been decided that an external member, from Departments of Atomic Energy, Space or DRDO who have developed over the years a fine turned system of screening in meritorious Scientists may be co-opted in the selection process, till such time a system gets established in other Scientific Departments. The position will, however, be reviewed after 5 years from the date of issue of this Office Memorandum.
(c) All Officers who are screened-in will be called for an interview. The performance in the interview will also be graded similarly on a 10 point scale and the eligibility for promotion will be based on the same norms as in the above Table.
(d) Field experience in research and development and/or experience in implementation of such scientific projects is compulsory for promotion of scientists recruited to the posts in the Secretariat of the Scientific Ministries/Departments to higher grades under FCS. Field experience of at least 2 years and 5 years respectively will be essential for promotion to Scientist F and Scientist G grades respectively. However, during the transitional period, Committee may relax this requirement in case of meritorious candidates.
12. In view of the above RR, the statutory position and the Guidelines under FCS, we may refer to the judgment of this Tribunal in Shri Sivkumars case (supra) relied on by the applicants counsel. The relevant part reads as follows:-
10. The Respondents had delayed the promotion of the Applicant and similarly situated person to the grade of SRO also because of their lethargy. The Applicant and others were dragged in litigation up to the Honourable Supreme Court. Even after that they had to file contempt petition to get their dues. Again the Respondents delayed the implementation of the FCS for unconscionably long time of 11 years. The Applicant and other similarly situated persons were again dragged into litigation. The Ministry of Water Resources has been following different yardsticks for different institutions under it as would become clear from the example of the NIH in whose case the 12 scientists were given the benefit of antedating of their promotion on the basis of the promotion granted to the five scientists on the basis of the directions of this Tribunal. It was clearly mentioned in the order promoting the 12 scientists that they were not party to any litigation and they were being promoted retrospectively on the basis of the decision of this Tribunal in the OAs filed by the five scientists. NIH is also a scientific institution like the Respondent- CSMRS and FCS is applicable to NIH also. The order rejecting the representation of the Applicant on the ground that he was not a party to the litigation was passed on 04.03.2010 and the order promoting the 12 scientists of NIH, who were also not parties to the litigation, was passed on 13.09.2010. This, to say the least, is not reasonable attitude on the part of the Ministry of Water Resources.
11. On the basis of the above discussion the OA is allowed in the same terms as OA number 1810/2007. The Respondents are directed to promote the Applicant from the date of eligibility in the year 1995 to the grade of CRO as expeditiously as possible, but not later than one month from the receipt of a certified copy of this order. The Applicant would be eligible for all consequential benefits, which may accrue to him according to the rules. There will be no orders as to costs.
13. We may advert to the relevant part of our judgment in Shri D. N. Beras case (supra) which is extracted below :
19. Having given our careful and thoughtful considerations to the facts and circumstances of the case and in view of our above discussions and conclusions on three issues, we are of the considered view that the applicants have established their case. Thus, the OA succeeds. The Respondents are directed to convene Screening Committee and Assessment Board for in situ promotion under FCS for each year from 1997 to 2005. If the applicants are found fit for any of those years for promotion, they should be granted in situ promotion under FCS. Resultantly, they will be entitled to all consequential benefits including seniority, and arrears of pay and allowances.
20. In the result, OA is allowed in terms of our above orders, directions and observations. There is no order as to costs.
14. The respondents counsel relied on the judgment of the Tribunal in Shri D. N. Beras case (supra). Though, both counsel of the rival parties gave impression that the decisions in Shri N. Sivakumar case and Shri D. N. Beras case are opposite to each other, we do not find any such position. Rather, our order in Shri D. N. Beras case (supra) is an improvement and entrusts the executive to carry out the proper consideration. We are of the considered opinion that the judgment of this Tribunal in Shri D. N. Beras case (supra) fully covers the case of the applicants in the instant OA. We order accordingly. The 1st and 2nd respondents are directed to carry out the exercise as expeditiously as possible but at least within a period of nine weeks. In case the applicants get the promotion to CRO post, they will be entitled to all consequential benefits. In terms of our above directions, the OA is allowed, leaving the parties to bear their own costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /pj/