Central Administrative Tribunal - Bangalore
Suchetana Biswas vs Department Of Water Resources, River ... on 3 June, 2024
1 OA 343/2022/CAT/BANGALORE BENCH
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00343/2022
DATED THIS THE 3RD DAY OF JUNE, 2024
HON'BLE MRS. JUSTICE S SUJATHA ...MEMBER(J)
HON'BLE DR. SANJIV KUMAR ...MEMBER(A)
Dr.Suchetana Biswas,
Aged about 34 years,
D/o Shyamal Biswas,
Residing at No.735,
Kshrisagar, 2nd Floor,
2nd Main, ITI Layout,
Near Kidzee School,
Bangalore, Karnataka-560068. ...Applicant
(By Advocate, Shri Azhar Ali Farooqi)
Vs.
1. The Union of India,
Represented by Secretary,
Ministry of Jal Shakti,
Department of Water Resources,
River Development and Ganga Rejuvenation,
6th Floor Cabin, Shram Shakti Bhawan,
Rafi Marg, New Delhi -110001.
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2. The Central Ground Water Board,
Represented by its Chairman,
Bhujal Bhawan,
CGO Complex Road, New Industrial Twp 4,
New Industrial Town, Faridabad,
Haryana 121001.
3. The Union Public Service Commission,
Represented by its Secretary,
Dholpur House, Shahjahan Road,
New Delhi -110069. ...Respondents
(By Advocates, Shri Vishnu Bhat for Respondents-1&2 and Shri
N.Amaresh for Respondent No.3)
O R D E R (ORAL)
Per: Justice S.Sujatha ...........Member(J)
The applicant has filed this application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"a. Pass necessary orders declaring that the order passed by the Respondent No.2 excluding the Applicant is illegal, arbitrary and wrongful and as a consequent quash the order dated 06.07.2022 issued by the Respondent No.2 (Annexure A13) .
3 OA 343/2022/CAT/BANGALORE BENCH b. Pass necessary order declaring the response dated 17.08.2022 issued by the Respondent No.2 as illegal and consequently strike it down.
c. Pass necessary orders directing the Respondent No.2 to issue a fresh list including the name of the Applicant in the list of names of the candidates who are eligible to participate for promotion from Scientist 'B' to Scientist 'C'.
d. Pass any other order/s or direction which this Hon'ble Tribunal deems fit in the interest of justice and equity.
e. Pass necessary orders directing the Respondent No.1 to include the name of the applicant in the list of candidates promoted vide order dated 21.09.2022.
f. Pass necessary orders quashing the orders dated 30.12.2022 issued by Respondent No.1 (Annexure A22) and order dated 31.12.2022 issued by Respondent No.2 (Annexure A23) and direct the Respondents to issue fresh orders of promotion from the date of eligibility of the candidates, based on the assessment already done of the 59 scientific officers.
4 OA 343/2022/CAT/BANGALORE BENCH g. Pass necessary order granting liberty to the applicant herein to make representation to the Respondents for consideration of her candidature for relaxation of residency period."
2. Briefly stated the facts as narrated by the applicant are that the applicant was working as a Scientist of the grade Scientist 'B' in the Respondent No.2 organization at the time of filing of the OA. Pursuant to successfully clearing the examination conducted by the UPSC in the year 2012 securing All India rank-2, the applicant was shortlisted for the post of Junior Hydrogeologist, Scientist 'B' (Group A) by the Respondent No.2. Respondent No.1 issued an offer of appointment to the applicant to join as Junior Hydrogeologist in the Respondent No.2 organization and the same was accepted by the applicant vide letter of acceptance dated 09.03.2015. The applicant was given time period of 35 days to join the office to discharge her duty, however, she joined on 23.03.2015 well within time prescribed for joining. Subsequent to the applicant taking charge as Junior Hydrogeologist, she was put on probation for two years and the same was concluded on 23.03.2017.
5 OA 343/2022/CAT/BANGALORE BENCH As part of regular transfer scheme, the applicant was transferred vide office order dated 05.06.2018 from Raipur to CGWB office at Bangalore and joined her duties at the office of the Respondent No.2. To encourage and incentivise the Scientists in India, the Department of Personnel and Training (DOPT) has formulated a scheme known as "Flexible Complementing Scheme" (FCS). The FCS is a scheme by which the scientific personnel, such as applicant herein, are provided with a promotional, financial and grade incentive, if they are found fit in the assessment conducted by the Board of Assessment to the various positions like Scientists 'B' to Scientists 'C' and Scientist 'C' to Scientists 'D'. The Recruitment Rules which govern the Respondent No.2 are affected by this FCS issued by the Department of Personnel and Training and in-situ promotion of the Scientists is governed by the Recruitment Rules. In the backdrop of the Recruitment Rules and the existing FCS, the Respondent No.2 called for Annual Work Reports (AWR) from the prospective candidates on 03.03.2020 and subsequently on 08.07.2021 and 06.04.2022. The applicant who 6 OA 343/2022/CAT/BANGALORE BENCH was eligible for consideration under the FCS, sent reports dated 30.04.2020, 21.07.2021 and 12.04.2022.
3. It is the grievance of the applicant that her name was not included in the list of candidates, who were required to submit their bio-data in furtherance to email dated 06.07.2022 issued by the Respondent No.2 for consideration by the Board of Assessment for in-situ promotion under the FCS from the grade of Scientist 'B' to the grade of Scientist 'C'. The names of the persons who qualified the entrance examination along with the applicant but scored lesser than the applicant, have been included in the said list. The representation submitted by the applicant for consideration of her name not being responded to, nor acted upon, the applicant approached this Tribunal in OA No.283/2022, which came to be disposed of vide order dated 25.07.2022 directing the Respondent No.2 to decide the applicant's pending representation dated 07.07.2022 and pass a reasoned and speaking order in accordance with law, within a period of six weeks from the date of receipt of a certified copy of the order. The response dated 17.08.2022 sent by the Respondent No.2 and the order passed by Respondent No.1 7 OA 343/2022/CAT/BANGALORE BENCH excluding the applicant for in-situ promotion under FCS were challenged by the applicant finally in the present OA. In the reply statement filed on behalf of the respondents, the order dated 30.12.2022 issued by the Respondent No.1 and the office order dated 31.12.2022 issued by the Respondent No.2 were referred to, inasmuch as the promotion of 59 Scientist 'B' promoted on in-situ basis under FCS to the grade of Scientist 'C' in the Central Ground Water Board from the date of assumption of duties in the higher grade and until further orders. Relating to the assessment year 01.07.2020, the name of the applicant has been shown at Sl.No.1 in the said year, in the said orders. As such subsequent to the filing of the reply statement, the applicant sought for amendment of the OA and challenged the said orders dated 30.12.2022 and 31.12.2022 issued by the Respondent No.1 and 2 respectively along with the reliefs claimed in the original OA.
4. Learned Counsel Shri Azar Ali Farooki representing the applicant submitted that the Respondent No.2 called for Annual Work Reports of eligible candidates for promotion on three occasions, namely on 03.03.2020, 08.07.2021 and 06.04.2022. On 8 OA 343/2022/CAT/BANGALORE BENCH all the occasions, the name of the applicant was included in the list of eligible candidates and accordingly, the applicant had submitted her Annual Work Report to Respondent No.2. On the fourth occasion vide communication dated 06.07.2022 made by the Respondent No.2 calling for submission of the bio-data of the eligible candidates, the name of the applicant was excluded arbitrarily and illegally without assigning any reason. Hence the order dated 06.07.2022 is wholly arbitrary and deserves to be set aside. Learned Counsel further submitted that the applicant had completed more than seven years with impeccable record in the respondent organization. The Recruitment Rules, 2020, prescribes that upon completion of three years of service of Scientist 'B' , they are considered for promotion under the FCS. The Recruitment Rules, 2020 requires the Respondent No.2 to review the candidature of the eligible candidates every six months. Learned Counsel submitted that excluding the applicant in the order dated 21.09.2022 issued by the Respondent No.1 vide which 93 candidates have been promoted from Scientist 'B' to Scientist 'C' is against the Recruitment Rules, 2020. The applicant, who secured a better rank when compared to Ms.Prachi Gupta, cannot be excluded 9 OA 343/2022/CAT/BANGALORE BENCH from the list of promotees. The arbitrary act of respondents has resulted into a situation which made the applicant continue as Scientist 'B' upto 31.12.2022, whereas Ms.Prachi Gupta has been elevated to the rank of Scientist 'C' much earlier.
5. The Recruitment Rules, 2020, required Annual Work Report of three years, whereas Respondent No.2 vide its order dated 06.10.2022 has demanded the applicant and other candidates to submit a consolidated Annual Work Report of five years. Further giving benefit of FCS scheme from the date of assumption of charge and not from the date of eligibility of the Scientific Officer, is against the final order dated 25.08.2021 passed by the Hon'ble Apex Court in Civil Appeal No.6359/2016 and connected matters [Union of Indian and others vs. Vinay Kumar]. Heavily placing reliance on the said judgment of the Hon'ble Apex Court in the case of Vinay Kumar supra, learned Counsel submitted that the interest of the concerned Scientists could not be put to prejudice as a result of delay in constitution of the Assessment Committee in time, the benefit ought to be reckoned with effect from the date of eligibility of the applicant and not from the date of assumption of 10 OA 343/2022/CAT/BANGALORE BENCH charge in the higher grade as indicted in the impugned orders at Annexures A22 and A23. Further placing reliance on Rule 6(c) of Recruitment Rules, 2020, submitted that the exceptionally meritorious candidates with outstanding gradings may be granted relaxation in the residency period. Accordingly, seeks for interference of this Tribunal.
6. Learned Counsel Shri Vishnu Bhat representing the respondents No.1 and 2 submitted that the applicant was appointed as Scientist 'B' Hydrogeology on 23.03.2015. As per the Recruitment Rules notified on 07.03.1998, Scientist 'B' and 'C' who have completed five years of regular service are eligible for consideration for in-situ promotion to the grade of Scientist 'C' and 'D' respectively under FCS. Accordingly, a proposal for considering in-situ promotion of Scientist 'B' to Scientist 'C' under FCS was submitted to the Ministry/UPSC comprising 94 officers who have completed their residency period i.e., five years as on 01.01.2020, in which the name of the applicant was not included for the reason that she had not completed the residency period of five years regular service as on 01.01.2020. As per the DOPT OM 11 OA 343/2022/CAT/BANGALORE BENCH dated 10.09.2010, the department amended the Recruitment Rules of 1998 and the new Recruitment Rules were published vide GSR No.35 dated 22.02.2020. As per the new Recruitment Rules, Scientist 'B' with three years of service is eligible for in-situ promotion to the grade of Scientist 'C' under FCS and the screening committee shall be done twice in a year i.e., before 1st January and 1st July of every year. Accordingly, the applicant became eligible for in-situ promotion from the grade of Scientist 'B' to Scientist 'C' under FCS with effect from 01.07.2020. The Department has issued letter to the concerned authorities for verification of character and antecedents in respect of Ms.Prachi Gupta and the applicant on the same day i.e., 20.06.2014. The character verification in respect of Ms.Prachi Gupta was received on 19.09.2014 and accordingly she was given offer of appointment vide letter dated 11.12.2014. The character verification of the applicant was not received in time and as such reminders dated 30.10.2014, 12.11.2014 and 02.12.2014 respectively were issued. Finally the character verification of the applicant was received on 09.02.2015. Accordingly, offer of appointment was issued to the applicant on 02.03.2015. In-situ Promotion under FCS is personal 12 OA 343/2022/CAT/BANGALORE BENCH and consideration of Ms.Prachi Gupta before the applicant based on five years regular service as on 01.01.2020 is justifiable. Two more Annual Work Reports for the year 2021 and 2022 for the candidates who are eligible as on 01.07.2020, were required to be assessed i.e., for 2021 and 2022 also. Thus justifying the action of the respondents in issuing the orders impugned, learned counsel sought for the dismissal of the OA.
7. Learned Counsel Shri N.Amaresh appearing on behalf of Respondent No.3 sought for dismissal of the OA, supporting the arguments advanced by the learned Counsel for the Respondents No.1 and 2 .
8. We have carefully considered the submissions of the learned Counsel appearing for the parties and perused the material on record. Now the fulcrum of dispute mainly revolves around the effective date given in Annexure A22 and A23, whereby the applicant has been given in-situ promotion under FCS.
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9. In terms of the Recruitment Rules of the Central Ground Water Board (Scientist Group 'A' Posts) Recruitment (Amendment) Rules, 1997 dated 3rd February, 1998, for the post of Scientist 'C' for Hydrology discipline essential qualification required were:
i. Master's degree in Geology or Hydrology or degree in Civil Engineering from a recognised University or equivalent. ii. 5 years' practical experience in Hydrology preferably in ground water Hydrology.
10. The applicant had not completed five years experience as on 01.01.2020. In terms of the new Recruitment Rules published vide GSR No.35 dated 22.02.2020, Scientist 'B' with three years of service is eligible for in-situ promotion to the grade of Scientist 'C' under FCS and the screening Committee shall be done twice in a year i.e., before the 1st January and 1st July of every year and all the candidates who have completed the prescribed period of residency shall be reviewed for promotion by Assessment Board twice a year namely, before 1st January and the 1st July of every year. New Rules have come into force on the date of the publication in the official Gazette i.e., 22.02.2020.
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11. Procedure for in-situ promotion under FCS under these Rules of 2020 is as under:
"6. Procedure for in-situ Promotion under Flexible Complementing Scheme (FCS).-
(i) In situ promotion from Scientist 'B' to Scientist 'C' and Scientist 'C' to Scientist 'D' will be done as per guideline issued by the DoP&T OM No.AB-14-
17/37/2008-Estt (RR) dated 10.09.2010 and as amended from time to time. In-situ promotion under Flexible complementing Scheme is applicable to Group 'A' Scientist posts only. Scientists or Technical experts doing management or administrative work in the Departments or Ministries should not be considered for up gradation under Flexible Complementing Scheme, they should only be given benefits of up gradation under Modified Assured Progression Scheme.
(ii) All the posts covered under Flexible Complementing Scheme shall carry the following uniform level in the pay matrix, designation and the minimum residency period linked to performance.
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Designation Level in the Minimum
of post. Pay Matrix Residency period
linked to
performance
Scientist Level- 12 -
'D' (Rs.78800) in
the pay
matrix
Scientist Level-11 Four years.
'C' (Rs.67700) in
the pay
matrix.
Scientist Level- 10 Three years.
'D' (Rs.56100) in
the pay
matrix.
(iii) There shall be two level of assessment, the first level shall be at internal level for screening purposes and the next level shall be the next level shall be for external assessment purposes for selection and for this purpose:
(a) (i) The review for promotion under Flexible Complementing Scheme by the Screening Committee shall be done twice in a year, before 1st January and 1st July of every year.
(ii) All candidates who have completed the prescribed period of residency shall be reviewed for promotion by the Assessment Board twice a year namely before the 1st January and the 1st July of every year.
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(iii) The cases maturing for promotion under Flexible Complementing Scheme during January to June of the year shall be taken up for review in the month of July of that year and the cases maturing for promotion during July to December of a year shall be taken up for review in the month of January of the next year.
(b) Where an eligible officer is on foreign service or study leave in India or abroad, his or her case shall be considered and if such person has been approved for in- situ promotion under the Flexible Complementing Scheme to the next higher grade, the effective date of such promotion shall be from the date of resumption of duty in the Central Ground Water Board and financial benefit shall accrue from the same date and no travelling allowance or dearness allowance shall be provided to attend the interview;
(c) The exceptionally meritorious candidates with all outstanding grading may be granted relaxation in the residency period, the relaxation being not more than one year on any single occasion, limited to a maximum of two occasions in their entire career. The assessment under the Flexible Complementing Scheme for next grade shall only be three times and thereafter, the Scientist would be covered under Modified Assured Career Progression (MACP) Scheme according to provision of that scheme 17 OA 343/2022/CAT/BANGALORE BENCH and the Scientists who have been granted any grade under Modified Assured Career Progression Scheme may be considered for next grade under Flexible Complementing Scheme."
12. Minimum residency period of three years for Scientist 'B' is prescribed in the Recruitment Rules of 2020, which has come into force on 22.02.2020. As per Rule-6(iii)(a), the review for promotion under Flexible Complementing Scheme by the Screening Committee shall be done twice in a year, before 1st January and 1st July of every year. Indisputedly, the applicant acquired five years experience on 23.03.2020 subsequent to the Recruitment Rules of 2020 coming into force. Accordingly, screening committee ought to have considered the promotion of the applicant from 01.07.2020. The respondents placing reliance on OM dated 03.01.2018 granted promotion to the applicant on in-situ basis under FCS to the grade of Scientist 'C' applicable with effect from the date of assuming charge in the higher grade vide order dated 30.12.2022. DOPT vide OMs dated 21.09.2012 and 03.01.2018 had directed to ensure that no promotion under FCS/MFCS is granted with retrospective 18 OA 343/2022/CAT/BANGALORE BENCH effect. In the OM dated 03.01.2018 regarding ante-dating of promotion of Scientists, it has been observed thus:
"4. The issues relating to ante-dating of promotion of Scientist in the Ministry of Electronics & Information Technology (Miet Y) was examined by Miet Y in consultation with Solicitor General of India in connection with a case filed by Shri Vinay Kumar, Scientist 'E' NIC, in CAT, Principal Bench, New Delhi. In this case, the petitioner also sought ante-dating of his promotion to Scientist 'D' and Scientist 'E' due to delay in considering review promotion.
5. Subsequently MeitY has filed SLPs before Hon'ble Supreme Court challenging the order of Hon'ble High Court in the following cases wherein a prayer has been made for ante-dating of promotion in case of:-
(i) SLP CC No. 4155/2016 (Union of India and Ors Vs. Vinay Kumar)
(ii) SLP CC No.7196/2016 (Union of India and Ors Vs. Santosh Wadhwa, Scientist-E and Ors.)
(iii) SLP CC No.26757/2016 (Union of India and Ors Vs. Iqbal Hasan and Ors) Hon'ble Supreme Court in its order dated 08.07.2016 has directed in the SLP No. 4155/2016 that the impugned
19 OA 343/2022/CAT/BANGALORE BENCH judgment shall remain suspended during the pendency of the appeal.
In the light of above, all scientific Ministries/ Departments/Organizations are advised to defend the court cases on the subject matter in view of the laid down policy of DOP&T, on the basis of advice of Solicitor General of India and the stand taken in the SLP filed by MietY till the final decision of the Apex Court in this case on the issue of ante-dating of promotion of scientist. A copy of the opinion of Ld. Solicitor General is also enclosed for ready reference in this case."
13. It is significant to note that Civil Appeal No.6359/2016 (SLP (C) CC No.4155/2016) and connected matters referred to in the OM dated 03.01.2018 have been finally dismissed by the Hon'ble Apex Court vide order dated 25.08.2021. The Hon'ble Apex Court in Para-6 and 8 of the said judgment, has observed thus:
"6. In S.K.Murti, the High Court was called upon to consider the effect of delay occasioned as a result of non- constitution of the Assessment Board/Committee in time. The High Court found that the concerned candidate having become eligible, the delay on part of Assessment 20 OA 343/2022/CAT/BANGALORE BENCH Board/Committee could not deprive him of his entitlement and as such the benefit ought to be reckoned with effect from the date of his eligibility.
7. .........................................
8. When the instant appeal was admitted on 08.07.2016, this Court proceeded to direct that the operation of the impugned judgment would remain suspended during the pendency of the appeal. It was, however made clear that the officers promoted pursuant to the order under challenge would continue to function in the promoted category during the pendency of the appeal."
Finally in Para-13 and 14, it is held thus:
"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 not 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.
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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 is presently under challenge, we dismiss this Civil Appeal No.6359 of 2016 without any order as to costs."
14. Despite the aforesaid judgment passed by the Hon'ble Apex Court, clarificatory affidavit has been filed on behalf of the respondents on 25.01.2024, justifying the promotion of the applicant to the post of Scientist 'C' effective from the date she joined as Scientist 'C' i.e., 31.12.2022, placing reliance on the OMs dated 21.09.2012 and 03.01.2018. The respondents being the appellants in Civil Appeal No.6359/2016 and connected matters, ought to have implemented the final order passed by the Hon'ble Apex Court dated 25.08.2021. But strangely placing reliance on the interim order passed in the said Civil Appeals referred to in the OM dated 03.01.2018 promoted the applicant with effect from 31.12.2022. Thus promoting the applicant from the date of assumption of duties in the higher grade cannot be approved as the same runs contrary to the legal principles enunciated by the Hon'ble Apex Court in CA No.6359/2016 and connected matters. The date 22 OA 343/2022/CAT/BANGALORE BENCH of eligibility being the crucial date, the delay on the part of the Assessment Board/Committee could not deprive the applicant of her entitlement i.e., from 01.07.2020. No reliance could be placed on the interim order subsequent to passing of the final judgment by the Hon'ble Apex Court in Civil Appeal No.6359/2016.
15. The argument advanced by the learned Counsel for the applicant that the applicant has to be placed above Ms.Prachi Gupta in the seniority list cannot be considered by this Tribunal at this stage, more particularly in the absence of Ms.Prachi Gupta arrayed as a party to the proceedings. Even the relaxation of residency period under Rule 6(c) of Recruitment Rules, 2020 would not create any absolute right to the applicant and the same requires to be considered by the respondents.
16. For the reasons aforesaid, we pass the following:
ORDER
1) Annexure A22 dated 30.12.2022 issued by the Respondent No.1 and the Office order at Annexure A23 dated 31.12.2022 issued by the Respondent No.2 granting promotion on in-situ 23 OA 343/2022/CAT/BANGALORE BENCH basis under FCS to the grade of Scientist 'C' with effect from the date of the applicant assuming charges in the higher grade, are quashed qua the applicant is concerned.
2) The Respondents No.1 and 2 are directed to issue fresh orders to the applicant in the light of the judgment passed by the Hon'ble Apex Court in the case of Union of India and Ors. Vs. Vinay Kumar in Civil Appeal No.6359/2016 and connected matters (DD: 25.08.2021).
3) Compliance shall be made in an expedite manner, in any event, not later than 12 weeks from the date of receipt of the certified copy of the order.
4) The applicant is at liberty to make representation to the respondents for relaxation of residency period and if such representation is made, the same shall be considered by the respondents before passing the fresh promotion orders under FCS.
5) OA stands disposed of in terms of above.
No order as to costs.
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(DR.SANJIV KUMAR) (JUSTICE S.SUJATHA)
MEMBER(A) MEMBER(J)
sd.