Central Administrative Tribunal - Gauhati
Nripomo Odyuo vs M/O Environment And Forests on 25 February, 2022
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CENTRAL ADMINISTRATIVE TRIBUNAL
GUWAHATI BENCH
Original Application No. 043/00123/2019
THE HON'BLE SMT. MANJULA DAS, CHAIRMAN
THE HON'BLE MR. N. NEIHSIAL, ADMINISTRATIVE MEMBER
Sri Nripemo Odyuo, S/o E Ramongo Odyuo, aged
about 49 years, Quarter No.6, Type-IV, Block-
3,Botanical Survey of India, Lower New Laitumkhrah,
Eastern Regional Centre, Shillong, Meghalaya
Posted at:
Scientist D, Botanical Survey of India, Eastern
Regional Centre, Shillong, Meghalaya.
...Applicant.
-Versus-
1. Union of India through its Secretary, Ministry of
Environment, Forest & Climate Change, Govt. of
India, Indira Paryavaran Bhawan, Jor Bagh Road,
New Delhi-3.
2. The Secretary, Ministry of Personnel Public
Grievances and Pensions (Department of Personnel &
Training) Govt. of India, New Delhi.
..Respondents
For the Applicant: Sri N Z Lotha & A I Kathar
For the Respondents: Sri V K Bhatra, Sr. C.G.S.C.
OA.043/123/2019
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Date of hearing: 21.01.2022 Date of Order:25.02.2022
ORDER
MANJULA DAS, CHAIRMAN:
1. In this OA, filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant is seeking following relief(s):-
(1) Quash and set aside the impugned order dated 28-02-2019.
(2) Direct the respondent authorities to antedate and grant in-situ promotion from Scientist-C to Scientist-D with effect from the due date of eligibility i.e. 01.01.2010 along with all consequential benefits of pay fixation and payment of arrears due with the promotion.
(3) Direct the respondents that the promotion order dated 14.02.2020, granted during the pendency of this instant OA whereby the promotion of the applicant from Scientist D to Scientist E has been effected on 11.02.2020 (Annexure-A-26), be antedated in-situ to the due date of eligibility i.e. 01.01.2014 along with all consequential benefits of pay fixation and payment of back wages due as arrears with such promotion.
(4) Direct the respondent authorities to initiate the Departmental Review and Assessment Board for the grant of promotion of the applicant from Scientist E to Scientist F and OA.043/123/2019 3 thereafter grant the promotion from the due date of eligibility.
(5) Direct the respondent authorities that the arrears which are due to the applicant from the antedated in-situ promotion form Scientist-
B to Scientist-C w.e.f. 01.01.2006 onwards and all other arrears accrued from time to time in the subsequent grades as well up to date be paid.
(6) Any other relief/reliefs which this Hon'ble Tribunal may deem fit and appropriate in the facts and circumstances of the case may also be passed in favour of the applicant and against the respondents."
2. The facts in brief are that the applicant was appointed as Scientist-B in the Botanical Survey of India under the respondent no.1 on 16.12.2002. He is currently posted as Scientist-E in the Botanical Survey of India, Eastern Regional Centre, Shillong, Meghalaya. According to the applicant, Flexible Complementing Scheme (FCS in short) is an in-situ promotion scheme for scientists recommended after the 5th CPC in 1998. In terms of the said policy, scientists and technologists holding Group A posts in Scientific and Technology departments and who are engaged in scientific OA.043/123/2019 4 activities and services are to be given time bound promotions in the following structures:-
Sl. Minimum
No. Pay Band and Grade Pay Designation Residency
Period
1 PB-3 (15600-39100) GP 5400/- Scientist-B 3 Years
2 PB-3 (15600-39100) GP 6600/- Scientist-C 4 Years
3 PB-3 (15600-39100) GP 7600/- Scientist-D 4 Years
4 PB-4 (37400-67000) GP 8700/- Scientist-E 5 Years
5 PB-4 (37400-67000) GP 8900/- Scientist-F 5 Years
6 PB-4 (37400-67000) GP 10000/-
Applicant contended that his promotion to Scientist C was due from 01.01.2006. However, it was given only in 2008. Though subsequently said promotion was antedated to 01.01.2006 in 2014, it was granted on notional basis without any financial benefits. According to the applicant, as per Modified Flexible Complementing Scheme (MFCS), applicant was due for further promotion to the post of Scientist D, Scientist E & Scientist F on 01.01.2010, 01.01.2014 and 01.01.2019 OA.043/123/2019 5 respectively. However, his promotion to the post of Scientist D and Scientist E was effected from 28.01.2015 and 11.02.2020 respectively. In contrast, whereas the case of the applicant for promotion under FCS was kept pending despite his representations, the respondents vide order dated 24.06.2015 promoted as many as 9 juniors to the applicant to the post of Scientist-D w.e.f. 09.05.2004. His repeated representations/reminders for promotions under FCS did not yield any result.
3. Being aggrieved by the inaction on the part of the respondent no.1 in granting promotion to the applicant, and the failure to take actions on the repeated representations, the applicant filed OA.266/2018 before this Tribunal. This Tribunal vide order dated 10.08.2018 disposed of the OA with direction to the respondents MoEF&CC (respondent no.1 in this OA) to give personal hearing to the applicant, and thereafter to redress his grievances in the light of the decision of the Hon'ble Supreme Court dated OA.043/123/2019 6 02.05.2011 in SLP No.6864/2011 (Union of India vs. SK Murti) and also CAT Principal decision in Bharat Singh vs Union of India. However, vide impugned order dated 18.02.2019, the prayer of the applicant was rejected. Hence this OA.
4. The respondents in their written statement contested the claim of the applicant. According to the respondents, mere completion of the residency period in a particular grade does not confer the right to promotion under FCS. The respondents contended that though the respondent no.1 had earlier issued OM dated 24.05.2013 regarding ante-dating of in-situ promotion in respect of Scientists of the Ministry, including its attached and subordinate offices from their due dates of eligibility in the different grades of scientific posts, the DoPT vide its Dy. No.L046246/74/US (Estt.RR-II) dated 27,11.2014 advised the respondent no.1 not to implement the order dated 24.05.2013 without the approval of the ACC, who is the competent authority in the matter of grant of FCS. It was also OA.043/123/2019 7 submitted that the ante-dating of in-situ promotion under FCS is not feasible in view of Para No.12(4) and 12(5) of the revised Recruitment Rules notified by the respondent no.1 vide DGS 53(E) dated 23.01.2015 which stipulates that "The date of in-situ promotion for those suitable for in-situ promotion to the next higher grade under FCS shall be the date on which the competent authority approves in-situ promotion and there shall not be retrospective in-situ promotion". In view of the above position and also on the fact that applicant has not actually held the post during the inventing period of his effective and actual date of promotion, respondents claimed that the applicant's request for ante-dating his dates of promotion cannot be acceded to.
5. Sri N.Z.Lotha, learned counsel for the applicant submitted that the issue is no longer res-integra as it has already been decided by the Hon'ble Supreme Court in the case of Union of India vs S K Murti in SLP(C) No.6864/2021 vide judgment dated 02.05.2011. Similar OA.043/123/2019 8 issue has already been decided by the Apex Court in Civil Appeal No.6359/2016 (Union of India &Ors vs Vinay Kumar) on 25.08.2021. Learned counsel submitted that the present applicant is exactly similarly situated with the petitioners in the aforementioned cases, wherein promotion of the petitioners was delayed on account of delay in convening of the Departmental Review Committee/Selection Committee which 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. According to the learned counsel, as already quoted above, the Hon'ble Supreme Court in SK Murti (supra), directed the respondents to pass similar orders in respect of all similarly situated persons who may not have approached the court.
6. On the other hand, Sri V K Bhatra, Sr. C.G.S.C. appearing for the respondents submitted that after the dismissal of Civil Appeal No.6359/2016 by the Hon'ble Supreme Court, the matter had been referred to the respondent no.1, i.e., the DoPT vide F No.05/02/2015- OA.043/123/2019 9 CSB dated 14.10.2021 for furnishing their advice, being the being the nodal agency. Subsequently also the respondent no.1 wrote to the respondent no.2 to expedite their advice for dealing with all the matters relating to grant of ante-dating of promotion under FCS. However, reply from the respondent is awaited.
7. We have heard both sides, perused the materials placed on record and the decisions relied on. It is not in dispute that the issue has already been decided by the Hon'ble Supreme Court in the aforementioned cases. In the case of S.K.Murti (supra), the Hon'ble Supreme Court held as under:-
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.
OA.043/123/2019 10 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.
OA.043/123/2019 11 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) In the case of Vinay Kumar (supra), the Apex Court had passed the following orders:-
"13. The decision presently under challenge was based on the earlier decision rendered by the High Court in S.K.Murti which was affirmed by this Court. The view taken by the High Court that the interest of the concerned Scientists could be put to prejudice as a result of delay in constituting the Assessment Committee in time, was affirmed by this Court.
The subsequent office memoranda dated 19.9.2016 and 12.02.2019 carry and seek to implement the same principle.
14. In the circumstances, we see no reason to take a different view in the matter. Affirming the view taken by the High Court which his presently under challenge, we dismiss the Civil OA.043/123/2019 12 Appeal No.6359 of 2016 without any order as to costs.
(emphasis supplied)
8. It is also not disputed that the applicant is similarly situated to the petitions in the aforesaid cases.
The Hon'ble Supreme Court had already issued necessary directions to issue similar orders in case of all the similarly placed employees who did not approach the court. The only stand taken by the respondent no.1 is that they have already sent the matter to the respondent no.2 for their advice to deal with the issue in hand. Admittedly, the proposal was sent to the respondent no.2 vide letter dated 14.10.2021. Thereafter also vide OM dated 12.11.2021 reminder was sent, followed by DO letters on 08.12.2021 and 20.01.2022 but no decision from the respondent no.2 is forthcoming.
9. In view of the above, we are of the considered opinion that since the matter is pending before the respondent no.2, ends of the justice would be met if the OA.043/123/2019 13 respondent no.2 is directed to take a decision within a time frame. Accordingly, respondent no.2 is directed to take the final decision in the matter and communicate the same to the respondent no.1 within a period of two months from the date of receipt of this order. On receipt of such decision of respondent No.2, the respondent no.1 shall pass appropriate orders in respect of the applicant as regards ante-dating his promotions as per MFCS within a period of one month thereafter.
10. The OA is disposed of as above. There shall be no order as to costs.
(N. NEIHSIAL) (MANJULA DAS)
ADMINISTRATIVE MEMBER CHAIRMAN
/BB/
OA.043/123/2019