Central Administrative Tribunal - Delhi
B. R. Mishra S/O S. L. Mishra vs Union Of India Through on 11 October, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.1221 of 2010 Misc. Application No.1019/2010 New Delhi, this the 11th day of October, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) 1. B. R. Mishra S/o S. L. Mishra, R/o GP-13, CPWD Transit Hostel, Aliganj, New Delhi. 2. S. K. Jagwani S/o D. B. Jagwani, R/o III A/221 Rachna Flats, Vaishali, Ghaziabad (UP). Applicants (By Ms. Sriparna Chatterjee, Advocate ) Versus 1. Union of India through Secretary, Ministry of New and Renewable Energy, 14, CGO Complex, Lodhi Road, New Delhi-110003. 2. Deputy Secretary, Ministry of New and Renewable Energy, 14, CGO Complex, Lodhi Road, New Delhi-110003. Respondents ( By Shri D. S. Mahendru, Advocate ) O R D E R
Dr. Ramesh Chandra Panda, Member (A) Shri B. R. Mishra and Shri S. K. Jagwani, the applicants herein, have jointly filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 calling in question order dated 28.4.2008 (Page-12) only promoting them to the post of Scientist E, whereas they were entitled to be promoted as Scientist F under the Flexible Complimenting Scheme (FCS). They also seek setting aside of the orders dated 1.7.2008 (Page-13) and March, 2009 (Page-14) rejecting their representations seeking promotion to the post of Scientist F, and to direct the respondents to grant them in situ promotion under FCS from Scientist D to Scientist F w.e.f. 28.4.2008, when 17 other similarly situated persons were granted the same, with all consequential benefits.
2. Brief facts on which the above reliefs are sought to rest, as projected in the Original Application, reveal that the first applicant was granted in situ promotion under FCS from the post of Senior Scientific Officer-1 to that of Principal Scientific Officer in the scale of Rs.12000-375-16500 w.e.f. 23.3.1998, whereas the second applicant was granted the aforesaid promotion w.e.f. 5.8.1998. It is the case of the applicants that rules relating to in situ promotion under the FCS applicable to scientific and technical Group A posts in scientific departments were notified on 9.11.1998, and the erstwhile designations of the scientific and technical posts which came to be covered under the amended FCS in the Ministry of Non-Conventional Energy Sources (now redesignated as Ministry of New and Renewable Energy) (in short MNRE) were re-designated vide order dated 17.12.1998. It is the case of the applicants that under the unamended FCS or the Recruitment Rules, as they were then referred to, there was no post equivalent to Scientist E as shown under the modified FCS. Under the erstwhile unamended Recruitment Rules, which were referred to as the Department of Non-Conventional Energy Source Group-A Gazetted Posts (Non-Ministerial Scientific and Technical) Amendment Rules, 1989, the next promotion from the post of Principal Scientific Officer, i.e., Scientist D was to the post of Director (Technical), i.e., Scientist F. The eligibility criteria for promotion to the post of Director (Technical) (Scientist F) from the post of Principal Scientific Officer (Scientist D) was five years regular service in the grade. Rules pertaining to FCS underwent modification pursuant to the notification dated 9.11.1998. However, on 14.10.1999 a clarification was issued by DOP&T wherein it was specified that the relaxation was in respect of Principal Scientific Officer (Scientist D) who, under the erstwhile rules were eligible for promotion to the grade of Rs.5100-6300 (pre-revised), i.e., Director Technical or Scientist F directly from the scale of Rs.3700-5000 (pre-revised) i.e., Principal Scientific Officer/Scientist D, and was applicable only to those Principal Scientific Officers/Scientists D who were in position as on 9.11.1998. There is no condition that (i) they should have been assessed at least once for promotion to the higher grade of Rs.5100-6300 (Rs.16400-20000) as on 9.11.1998, and (ii) this relaxation is for only one more occasion. In other words, all those Scientists D who were in position as on 9.11.1998 and were eligible under the extant rules for promotion directly to the grade of Scientist F, would continue to be eligible for movement directly to the grade of Scientist F. On 26.4.2000, an office memorandum was issued as per which it was specified that all those Scientists D who were in position as on 9.11.1998 and were eligible for promotion directly to Scientist F grade under the recruitment rules in vogue prior to the introduction of the modified FCS, would continue to remain eligible as a special case only on completion of the minimum eligibility service as under the recruitment rules prior to 9.11.1998. It is the case of the applicants that as they fulfilled the aforesaid conditions, they were called for consideration by the Assessment Board for in situ and personal promotion from Scientist D to Scientist F. They were asked to be present at the meeting of the Assessment Board to be held on 19.9.2006 and 20.9.2006. The said meeting was, however, cancelled and the applicants were again called before the Board vide OM dated 24.1.2008 and 8.4.2008. The meeting of the Board was held on 16.4.2008 to consider grant of in situ promotion to 19 Scientists D to the grade of Scientist F under the unamended FCS. Vide notification dated 28.4.2008, 17 persons except the applicants were granted in situ promotion on personal basis under FCS in the pay scale of Rs.16400-20000. However, the names of the applicants were left out. Vide another order dated 28.4.2008, the applicants were appointed as Scientist E on personal basis under FCS. The applicants represented against the non-grant of in situ promotion to Scientist F on 9.5.2008, but it is their case that they were threatened with punitive action and were directed to report on the promotional post of Scientist E vide OM dated 6.5.2008, and that having no other alternative, they gave their joining letters on 7.5.2008 on the post of Scientist E, however, mentioning therein that their joining was without prejudice to their rights. The representation made by the applicants was rejected vide OM dated 1.7.2008. Aggrieved, they made yet another representation which met with the same fate vide OM dated March, 2009. Being aggrieved, the applicants filed OA No.961/2010 in this Tribunal which was allowed to be withdrawn with liberty to file fresh one after annexing typed copies of the illegible documents and annexing the FCS rules. It is in wake of the facts and circumstances as mentioned above that the present Original Application with the reliefs already indicated above has been filed.
3. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and by filing their counter reply contested the cause of the applicants. While giving the brief facts of the case, it has inter alia been pleaded that the applicants are working as Scientists E. Prior to appointment on the present post, both the applicants were working as Scientists D with effect from 23.3.1998 and 5.8.1998 respectively. The procedure adopted in the case is stated to be on the basis of guidelines as contained in DOP&T OM dated 9.11.1998 and notification of the even date for making in situ promotion of Scientists under FCS. It is pleaded that the initial screening of Scientists who possess the minimum residency period, is done on the basis of their respective ACRs by the Screening Committee under the chairmanship of Secretary, MNRE, Joint Secretary (Admn.) (member) and an external member. After initial screening, the screened-in Scientists are called for interview before the Assessment Board chaired by Secretary with Joint Secretary, MNRE as member, Additional Secretary/Joint Secretary, M/o Environment and Forests and DOP&T Nominees, and at least three experts as members. The recommendations of the Assessment Board for promotions to Scientist F and Scientist G levels are referred to the departmental Peer Review Committee. As per the guidelines on FCS contained in the DOP&T OM dated 9.11.1998, field experience of at least two years is required for in situ promotion to Scientist F, and as per DOP&T clarification dated 14.10.1999, Principal Scientific Officers [pay scale Rs.3700-5000 (pre-revised) (now Scientist D pay scale Rs.12000-375-16500 (revised) (further revised to Rs.15600-39100 + Grade Pay Rs.7600/- as per 6th CPC], who were in position as on 9.11.1998 and were eligible under the extant rules for promotion directly to the grade of Rs.5100-6300 (pre-revised) will continue to be eligible for promotion to the grade of Rs.16400-450-20000 after completion of the eligibility service as prescribed in the rules that existed prior to the amendment, as a one-time measure. The appointing authority for in situ promotion up to the level of Scientist F is the Minister (NRE) on the basis of recommendations of the assessment board and review by DPRC. Insofar as, the applicants are concerned, they were appointed as Scientist D on in situ basis under the FCS with effect from 23.3.1998 and 5.8.1998 respectively. They were in position on the post of Scientist D on 9.11.1998 and had completed the minimum residency period of five years. Therefore, they were eligible to be considered for in situ promotion to Scientist F under FCS. The eligible Scientists D including the applicants were screened by the Screening Committee on 4.4.2008. Thereafter, all the screened Scientists were invited for interview by the Assessment Board. The board in its meeting held on 16.4.2008 considered 19 Scientists-D grade and recommended two applicants, for in situ promotion from Scientist D to Scientists E, and further recommended other 17 Scientists D to be taken up for review by the DPRC. The recommendations of the Assessment Board were submitted for approval of the competent authority, i.e., Minister (MNRE), who approved the promotion of both the applicants from Scientist D to Scientist E on in situ basis under FCS on 28.4.2008. However, on consideration of the representations submitted by the applicants were rejected. Primarily, it is the case of the respondents that the applicants could not be promoted from Scientist D to Scientist F as they were not found fit by the Assessment Board. With regard to the plea of the applicants that they fell under the special case wherein PSO/Scientist D were allowed promotion directly to Scientist F, and hence there was no scope or provision for promotion to Scientist E under the extant rules, it is stated that the applicants are ignorant with regard to in situ promotion under FCS as against promotion based on seniority. It is pleaded that in the instant case, only the guidelines/provisions under FCS which was applicable to scientific and technical (Group A) posts in Ministries including MNRE are relevant as the meeting of the Assessment Board was convened for considering the scientists under FCS only and not on the basis of seniority under the provisions of recruitment rules. It is further pleaded that the post of Scientist E was introduced by the DOP&T consequent on the issue of guidelines under the modified FCS in November, 1998, and the respondent Ministry had issued an order dated 17.12.1998 to all concerned mentioning the revised designations of scientists including the newly introduced Scientist E on the basis of DOP&T notification dated 9.11.1998 regarding FCS for information, necessary action and compliance. As per DOP&T clarification dated 14.10.1999 all those Scientists D who were in position as on 9.11.1998 and were eligible under the extant rules for promotion directly to the grade of Rs.5100-6300 would continue to be eligible directly to the grade of Rs.16400-20000 (scale further revised after 6th CPC). However, in response to their representations at the time of their in situ promotion to Scientist E, the applicants were informed on 1.7.2008 that mere eligibility for promotion to Scientist F by being in position as Scientist D on 9.11.1998 would not entitle one to be promoted automatically to Scientist F, as promotions under FCS are based on merit and not on seniority basis and that after screening by the committee, the assessment board assesses the scientists for promotion to the appropriate grades. Thereafter, recommendations of the Assessment Board were considered and approved by the competent authority in the Ministry.
4. We heard Ms. Sriparna Chatterjee, learned counsel for the applicants and Shri D. S. Mahendru, learned counsel for the respondents. With their assistance, we also perused the pleadings.
5. Before we analyse the issues raised in the OA and repelled by the respondents, we may briefly refer to the Flexible Complementing Scheme (FCS). The FCS 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 (DOPT) which are applicable for all the Departments and more so in the Science and Technology Department. These provide in situ promotion. With a view to remove short comings and inadequacies in the Scheme, a detailed Office Memorandum dated 9.11.1998 was issued by the DOPT giving the procedure to be adopted for promotion from Grade-A to Grade-G. From time to time the DOP&T has issued clarifications. Both the parties in support of their respective contentions relied on the Department of Personnel and Training (DOPT) OM dated 9.11.1998. Further clarifications were 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 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.
6. At this stage, we may refer to the trite law on the role of Courts and Tribunals concerning the functioning of Selection Committees / Assessment Boards to select candidates for post. We are referring these judicial precedents as the applicants have sought our interference to direct the respondents in their selection. As stated earlier, the Scientists to be considered for in situ promotion under FCS, three stage scrutiny and selection take place. Screening Committee to screen the ACRs to find their eligibility, the Assessment Board to assess through personal interaction and interview to find out the suitability for a particular grade of Scientist. Then comes the Peer Review Committee.
7. The Honble Supreme Court in the case of Chandra Prakash Tiwari and Others versus Shakuntala Shukla and Others [2002-6-SCC-127] has also taken the view that powers of judicial review in the matters of recruitment, selection process, comparative evaluation of the merits of the competing candidates are rather limited and those fall within the exclusive domain of the employer/executive. The Tribunal can interfere if the action of the Official Respondents is contrary to Recruitment Rules or arbitrary or vitiated by malafide. In M. V. Thimmaiah Versus. Union Public Service Commission [2008-2-SCC-119] the Hon'ble Supreme Court considered a catena of its judgments to come to the following conclusion:
"Normally, the recommendations of the Selection Committee cannot be challenged except on the ground of mala fides or serious violation of the statutory Rules. The Courts cannot sit as an appellate authority to examine the recommendations of the Selection Committee like the Court of appeal. This discretion has been given to the Selection Committee only and Courts rarely sit in court of appeal to examine the selection of the candidates nor is the business of the Court to examine each candidate and record its opinion."
8. In Dalpat Abasaheb Solunke & Ors. Versus Dr.B.S. Mahajan & Ors. [(1990) 1 SCC 305] the Hon'ble Supreme observed as follows:
"It is not the function of the court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The court has no such expertise. In the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so called comparative merits of the candidates as assessed by the court, the High Court went wrong and exceeded its jurisdiction. "
9. In National Institute of Mental Health and Neuro Sciences versus Dr. K. Kalyana Raman & Ors. [ 1992 Supp. (2) SCC 481], the Hon'ble Apex Court held that the expert committee finding should not be lightly interfered with, and observed thus:
"The function of the Selection Committee is neither judicial nor adjudicatory. It is purely administrative. Where selection has been made by the assessment of relative merits of rival candidates determined in the course of the interview of candidates possessing the required eligibility and there is no rule or regulation brought to the notice of the Court requiring the Selection Committee to record reasons, the Selection Committee is under no legal obligation to record reasons in support of its decision of selecting one candidate in preference to another. Even the principles of natural justice do not require an administrative authority or a Selection Committee or an examiner to record reasons for the selection or non-selection of a person in the absence of statutory requirement."
10. In the case of Tariq Islam Versus Aligarh Muslim University and Others [(2001) 8 SCC 546], where Apex Court stated the law thus This Court stated that normally, it is wise and safe for the courts to leave the decision of academic matters to experts who are more familiar with the problems they face than the courts generally are. Area of interference by courts would be limited to whether the appointment made by the academic body had contravened any statutory or binding rule and while doing so, the Court should show due regard to the opinion expressed by the experts and on whose recommendations the academic body had acted and not to treat such expert body as a quasi-judicial tribunal, deciding disputes referred to it for decision. Equivalence of a qualification pertains purely to an academic matter and courts would naturally hesitate to express a definite opinion, particularly, when it appears that the experts were satisfied that the equivalence has already been considered and declared by it
11. The above law was relied on and reiterated by the Supreme Court in Sanjay Kumar Manjul Versus Chairman, UPSC [2006-8-SCC-42] and held as follows :-
25. The statutory authority is entitled to frame statutory rules laying down terms and conditions of service as also the qualifications essential for holding a particular post. It is only the authority concerned who can made ultimate decision thereof.
26. The jurisdiction of the superior courts, it is a trite law, would be to interpret the rule and not to supplant or supplement the same.
27. It is well-settled that the superior courts while exercising their jurisdiction under Article 226 or 32 of the Constitution of India ordinarily do not direct an employer to prescribe a qualification for holding a particular post.
12. In view of the above ratio, it is noted that there are common threads of law which run through the cited judgments of Honble Supreme Court. We bring out those briefly. (i) The Assessment Boards are independent to draw up selection process in conformity with the Recruitment Rules and the schemes for promotion (in the instant case FCS); (ii) The expert body is competent to conduct interview as per the criteria already drawn up in just, fair, transparent and equitable manner; (iii) The Assessment Board / Interview Board / Selection Committee is competent to assess the performance of the candidates to select the best; (iv) The Interview Board / Selection Committee / Assessment Board need not record the reasons for selection of some candidates and non-selection of other candidates. (v) The Courts and Tribunals cannot normally interfere in the selection except in cases selection attracts malafide and is de hors the RR and Schemes for promotion.
13. We may now advert to the other issues raised by the parties. It is not in dispute that the Recruitment Rules of 1989 provided for the promotion from the post of Principal Scientific Officer to that of Director. But the Flexible Complementing Scheme coming into force from 1998 various levels were provided for in situ promotion personally to the Scientist/Technical Officers. This introduced Level-E for the Scientists between Level D & F. It is seen from the order dated 17.12.1998 available at Page 15 of the paper book issued by the respondents that the Scientist-E has been introduced consequent to the FCS implementation. Admittedly, the promotion to the post of Director (Technical) was from the feeder category of Principal Scientific Officer. But the revised designation, scale of pay for Scientist-B to Scientist-G was introduced by the said order dated 17.12.1998. Even in the Recruitment Rules the method of recruitment to the post of Director was by selection which means merit was the basis. Even for the sake of applying the earlier RR, the applicants would not have made the mark for Directors post as the Assessment Board had declared him fit for Scientist E and did not recommend for Scientist F.
14. It is further noted that the respondents have granted only one time exemption for those who were eligible to be promoted to the level of Scientist-F from the Scientist-D grade. The Screening Committee, on scrutiny of ACRs, finalized the eligibility list of Scientist-D. Those eligible Scientist-D were to be considered for the promotion to the Scientist-E and F grades. Accordingly, the Assessment Board did consider 19 such Scientists in Grade-D including 2 applicants. Of the 19 they have submitted their recommendation of the 17 to be considered for in situ promotion to the Scientist-F grade but found 2 applicants to be considered only for Scientist-E grade. It is trite law as stated within that Courts and Tribunals should not interfere in the matters of selection and recruitment undertaken through Screening Committee, Selection Committee or through the Assessment Boards. We have already cited above various judgments to bring home that the extent of judicial review in the matters of selection conducted by the Assessment Board is rather limited. We do not find any malafide or arbitrariness or violation of any Rules, calling for our interference in the selection process for the applicants. It is also admitted fact that the in situ promotion as one time relaxation from Scientist-D to Scientist-F was undertaken and that too only on merits. Seniority has no role in the selection process. Though the eligibility is one of the important criteria, if the juniors have better scientific contribution and achievements and perform well before the Assessment Board. if they are eligible along with their seniors, the juniors would march over the seniors in such selection process. We are of the considered opinion that the Assessment Board having selected 2 applicants only to the Scientist-E grade, it would not be judicially appropriate for us to interfere in the mater.
15. The contention raised by the applicants that every year such relaxation should be granted to consider eligible Scientist-D for direct promotion to the Scientist-F does not find support from us. We find that those contentions are not tenable as the Executive in their considered wisdom have decided to grant such relaxation as one time measure only.
16. Considering the totality of facts and circumstances of the case and guided by the trite law pertaining to the role of the Tribunal in interfering in the matters of selection process conducted by the Assessment Board, we are of the considered conclusion that the respondents action in issuing the orders dated 28.04.2008 by which the applicants have been promoted to Scientist-E and the orders dated 1.07.2008 and March, 2009 rejecting the representations of both the applicants are sustainable in the eyes of law. Both the applicants have failed miserably to convince us to interfere in the matter.
17. Resultantly, the OA being devoid of merits is dismissed, leaving the parties to meet their respective costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /pj/