Uttarakhand High Court
Dr. N.K. Saini And Others. ... vs Union Of India And Others on 11 June, 2019
Author: Alok Kumar Verma
Bench: Ramesh Ranganathan, Alok Kumar Verma
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
CLMA Misc. Application No. 7239 of 2019
In
Writ Petition (S/B) No. 349 of 2015
Dr. N.K. Saini and others. ...........Petitioners
Vs.
Union of India and others. ...Respondents
Sri Rajendra Dobhal, learned Senior Counsel assisted by Sri Tarun Lakhera, learned counsel for
the petitioners.
Sri Rakesh Thapliyal, learned counsel for Wadia Institute of Himalayan Geology.
CLMA Misc. Application No. 7237 of 2019
In
Writ Petition (S/B) No. 423 of 2015
Dr. H.K. Sachan and others ...........Petitioners
Vs.
Union of India and others. ...Respondents
Sri Rajendra Dobhal, learned Senior Counsel assisted by Sri Tarun Lakhera, learned counsel for
the petitioners.
Sri Rakesh Thapliyal, learned counsel for Wadia Institute of Himalayan Geology.
&
CLMA Misc. Application No. 7238 of 2019
In
Writ Petition (S/B) No. 442 of 2015
Pyar Singh Negi ............Petitioner.
Vs.
Union of India and others. ...Respondents
Sri D.S. Patni, learned counsel for the petitioner.
Sri Rakesh Thapliyal, learned counsel for Wadia Institute of Himalayan Geology.
Dated: 11th June, 2019
Coram: Hon'ble Ramesh Ranganathan, C.J.
Hon'ble Alok Kumar Verma, J.
Ramesh Ranganathan, C.J. (Oral) These three applications (Civil Misc. Application Nos. 7239, 7237 and 7238 of 2019) are filed by the Wadia Institute of Himalayan Geology pursuant to the order passed by the Supreme Court in Petition for Special Leave to Appeal (Civil) Nos. 7189- 7191 of 2017 dated 19.03.2018.
22. The respondents herein are the petitioners in Writ Petition (S/B) Nos. 442 of 2015, 423 of 2015 and 442 of 2015. A Division Bench of this Court, by its order in Writ Petition (S/B) Nos. 349 and 423 of 2015 dated 14.12.2016, had directed the respondent- applicants herein to extend the benefit of the Modified Flexible Complementing Scheme (for short the 'MFCS') from the date the petitioners (who are all Scientists) had completed five years of service. In the said order, the Division Bench had observed that the petitioners were working as Scientists at different levels; failure to consider their claim for being extended the benefit of MFCS was on account of the delay attributable solely to the respondents; the delay was admitted by the respondents in their counter affidavit; MFCS was issued in the year 2010, and was adopted by the Institute on 01.01.2011; the period of service required to be rendered in each cadre was reduced from the earlier period of five years; there was, however, no change in the procedure that required assessment to be carried out twice in a year; the issue had been examined by the Delhi High Court in its order dated 05.10.2010; the SLP preferred thereagainst was dismissed by a reasoned order; and while there was, no doubt, a mofidification of the Flexible Complementing Scheme (for short 'FCS') by introduction of MFCS, there was no change in the procedure that required the assessment to be carried out twice in a year; the Supreme Court had held that the respondents could not take advantage of their own wrong; if meetings are held in a timely fashion, there would be no occasion to seek the benefits with retrospective effect, and the benefits would be made available when they are due; this would mean that, by the time the residency period was over, proceedings should have been initiated and completed; the petitioners therein were held entitled for promotion on completion of the residency period; the Fifth Pay Commission Report contemplates grant of benefits with effect from the date of completion of the residency period which was, in turn, based on the necessity to hold timely meetings twice in a year; the order dated 3 21.09.2012 was a reiteration of the existing position; when the period of residency was reduced from five years to three or four years, holding of two evaluation assessments in the year in question, in which they completed the requisite service under the reduced period of residency, may not have been possible; and there was, however, no justification for not holding it after completion of five years.
3. The Division Bench declared that all the petitioners, except the first petitioner in Writ Petition (S/B) No. 349 of 2015, were entitled to the benefit of the Scheme from the date when they completed five years. With regards the first petitioner, in Writ Petition (S/B) No. 349 of 2015, the Division Bench directed the respondents to consider and pass an order as to whether he would fall within the 30 percent limit, which was prevalent prior to the enhancement of the limit from the 30 percent to 100 percent by order dated 15.06.2012; if it was found that he fell within the 30 percent limit, he would also get the benefit from the expiry of five years; and, otherwise, he would be given the benefit with effect from 30.06.2012 i.e. two weeks from the date of passing of the order dated 15.06.2012. The decision rejecting the representation, as also the decision of the Governing body dated 11.11.2014, were quashed.
4. The Division Bench further held that the petitioners would be entitled for the benefit in view of the delay attributable to the respondents in holding the exercise; the benefit must be given to the petitioners from the date on which they completed the period of residency of five years; and the exercise of granting them the benefit must be carried out within a period of two months from the date of receipt of a copy of the judgment. Thereafter, the Division Bench disposed of Writ Petition (S/B) No. 442 of 2015 by order dated 09.01.2017 following its earlier order in Writ Petition (S/B) Nos. 349 and 423 of 2015 dated 14.12.2016.
45. Aggrieved thereby, the Wadia Institute of Himalayan Geology carried the matter in appeal to the Supreme Court filing SLP (Civil) Nos. 7189-7191 of 2017. In its order dated 19.03.2018, the Supreme Court recorded the submission of the applicant-Institute that they had taken note of the grievance of the respondents, and they proposed to make a viable solution in the peculiar facts and circumstances of the case that, for the first year of delay, a grace period of six to eight months could be given; and, in future, there would be no delay. The Supreme Court was of the view that the applicant-Institute should be permitted to make such a submission before the High Court. The matter was remitted to the High Court in the light of the submissions made on behalf of the Institute. The Supreme Court made it clear that, in the process of hearing, the chart filed by the applicant-Institute may also be taken into consideration. The SLP was, accordingly, disposed of.
6. It is evident for a reading of the order of the Supreme Court, and has in fact not been disputed before us either by Sri Rakesh Thapliyal, learned counsel for the applicant-Institute or by Sri Rajendra Dobhal, learned Senior Counsel and Sri D.S. Patni, learned counsel appearing on behalf of the respondents-writ petitioners, that, except for the date from which the respondents- writ petitioners were to be extended the relief, the Supreme Court had not interfered with the order of the Division Bench. We are, therefore, required to confine our examination, in these applications, only to the request made on behalf of the Institute before the Supreme Court that, for the first year of delay, a grace period of six to eight months be granted; and, for the years thereafter (the second year onwards), there would be no delay, and the benefits would be extended to the petitioners, if they were found entitled on assessment, from the actual date of their entitlement. Enclosed along with the applications are charts indicating the names of the petitioners, the date of joining in the previous grade, the eligibility date a per the applicants' claim, the eligibility date after taking five 5 years of residency period as per the Division Bench's judgment, the date from which promotion was approved, the time gap in holding the assessment process as per the applicants' claim, and the time gap in holding the assessment process as per the High Court's judgment.
7. It has not been disputed before us, by the learned Senior Counsel and the learned counsel appearing on behalf of the respondents-writ petitioners, that computation of the time-gap, as reflected in the charts, suffers from any infirmity. We, therefore, accept the details furnished in the said charts, and grant the applicant-Institute a grace period of six months for the first year of delay alone, and not thereafter. The entitlement of the respondents- writ petitioners shall be reckoned with respect to the first year, six months from the date on which they had completed their residency period of five years, and for the subsequent years from the actual date on which they had completed the prescribed residency period. The applicant shall complete this exercise, and extend to the respondents-writ petitioners the benefits they are entitled to under the MFCS, at the earliest and, in any event, within two months from the date of receipt of a certified copy of this order.
8. All the three applications are, accordingly, disposed of.
(Alok Kumar Verma, J.) (Ramesh Ranganathan, C.J.) 11.06.2019 11.06.2019 Rathour