Central Administrative Tribunal - Delhi
Dr. R. L. Sharma S/O B. D. Sharma vs Union Of India Through Secretary on 24 May, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.345 of 2008 Misc. Application No.320/2010 This the 24th day of May, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) 1. Dr. R. L. Sharma S/o B. D. Sharma, R/o 843-44, Rani Sati Nagar, Janpath, P.O. Shyamnagar, Ajmer Road, Jaipur-302019. 2. Dr. B. S. Rathore S/o H. S. Rathore, R/o 146, Janakpuri, Izatnagar, Bareilly-243122 (UP). 3. Dr. K. P. Mallick S/o Jagdev Lal Mallick, R/o C/3 Indirapuri Colony, Raja Bazar, Patna-800014 (Bihar). 4. Dr. Greesh Mohan S/o Tej Pal, R/o C-512, Rajendra Nagar, Izatnagar, Bareilly-243122 (UP). 5. Dr. I. V. Mogha S/o R. B. Mogha, R/o B-39 Rajendra Nagar, Avas Vikas Colony, Bareilly-243122 (UP). 6. Dr. Murari Lal S/o Ram Charan Saraswati, R/o 21 Trishul Enclave, I.V.R.I. Road, Izatnagar, Bareilly (UP). 7. Dr. B. D. Gupta S/o Chaturbhuj Das Gupta, R/o D-108/7, Rajiv Kunj Colony, Izatnagar, Bareily (UP). 8. Dr. Alakhdeo Narayan S/o Munshi Singh, R/o H. No.54, Mithlapuri, Phase-I, Delapeer, Izarnagar, Bareilly (UP). Applicants (By Shri S. S. Tiwari, Advocate ) Versus 1. Union of India through Secretary (DARE) & Director General, ICAR, Krishi Bhawan, Dr. R.P.Road, New Delhi-110001. 2. Director (Personnel), I.C.A.R., Krishi Bhawan, Dr. R. P. Road, New Delhi-110001. Respondents ( By Shri S. S. Lingwal, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Dr. R. L. Sharma and seven others have filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 calling in question orders/letters dated 9.2.2007 and 20.2.2007 vide which the applicants have not been given simultaneous assessment for antedating their promotion to Scientist S-2, and consequential merit promotion to the next higher grade of Scientist S-3. The prayer made in the Application is to set aside the orders aforesaid and in consequence of that, to implement their order dated 26.6.1995 in respect of granting simultaneous consequential benefit by way of merit promotion to the applicants to S-3 grade, as has been done in the case of other similarly placed over 200 scientists, and give all consequential benefits including pay/pension re-fixation, pensionary benefits, etc. Even though, the prayers made in the OA are as mentioned above, the crux of the matter is full implementation of the order passed by this Tribunal in OA No.246/1996 on 29.11.1999. Whereas, the case of the applicants is that in view of the judgment of this Tribunal they have to be simultaneously promoted as Scientist S-2 and S-3 grades, the respondents would contend that after the applicants were promoted as S-2, their service record of five years thereafter has to be seen for their promotion to S-3 grade, and it is only if they are found fit on the basis of their record that they have to be so promoted. The respondents further state that they are prepared to consider the case of the applicants for promotion to S-3 grade, but for that submission of assessment form by the applicant in the prescribed proforma is necessary, whereas, the applicant are insisting upon to be promoted on the basis of the same record on the basis of which they were promoted to S-2 grade.
2. The facts on which the reliefs as mentioned above are sought to rest reveal that subsequent to formation of Agricultural Research Services with effect from 1.10.1975, the post of Junior Class 1 Scientist and Assistant Research Officer (Class-II position) a common designation of Scientist S-1 was given by the respondents. In the process anomalies in seniority of the applicants and erstwhile JROs vis-`-vis AROs occurred. Consequent to the judgment of the Honble High Court of Delhi in the case of Dr. M. L. Lodha & others v Union of India [CWP No.1192/84 dated 5.3.1987], large number of similarly placed Scientists were granted antedation of their promotion as Scientist S-2 effective from 1.7.1976 vide orders dated 27.12.1988, 28.12.1988, 7.2.1989 and 16.3.1995. Subsequently, consequential promotion to next higher grade of Scientist S-3 was granted in terms of the policy decision dated 26.6.1995. The applicants were, however, not granted analogous benefits. Constrained, they filed OA No.1948/1995 and OA No.246/1996 before this Tribunal, wherein they prayed for grant of analogous benefits. Order dated 29.11.1999 came to be passed by the Tribunal in OA No.246/1996 in the case of applicant Dr. R. L. Sharma, whereby the respondents were directed to consider the case of the applicant for promotion from S-1 to S-2 grade. Operative part of the order aforesaid reads, thus:
7. Having considered the aforesaid arguments and the pleadings on record, we are of the opinion that it is not necessary for the purpose of relief sought for by the applicant to go into the question as to the date of appointment of the applicant. The main grievance of the applicant is that certain persons whose names have been mentioned in paragraph 4.7 of the O.A. and who were admittedly appointed as S-I on dates subsequent to that of the applicant in 1975, have been promoted to S-II grade earlier to the applicant. The dates of joining/appointment to SI grade of these Scientists begin with Dr. J.R.Rao (1.7.1978), Dr. H. C. Malviya (1.7.1976), Dr. M.N. Malhotra (25.9.1976), Dr. V. K. Srivastava and Dr. Ravi Chandra (1.7.1976), which are later than the date admitted by the respondents of the appointment of the applicant, namely, 18.12.1975. In case any of these have been considered for promotion from S-I to S-II earlier to the applicant then obviously the applicant has a cause for grievance.
8. In view of the abovementioned position, we are inclined to dispose of this O.A. with a direction to the respondents to consider the case of the applicant for promotion from S-I to S-II grade from the earliest date from which any of the aforementioned officers had been so promoted. If the applicant is promoted as S-II and on that basis promoted to still higher grade, he will be entitled to all consequential benefits except monetary benefits in respect of backwages. [[ It is the case of the applicants that when the respondents would not implement the order dated 29.11.1999, the applicants were constrained to file contempt petitions bearing CP No.19/2001 in OA No.246/1996 and CP No.24/2001 in OA No.1948/1995. These contempt petitions were disposed of on 31.7.2001 with directions to the respondents to implement the order dated 29.11.1999. Subsequently, the Tribunal issued suo moto contempt notice. The contempt petitions were, however, finally dismissed and notices to alleged contemnors were discharged. The respondents filed a misc. application with an affidavit dated 9.10.2001 and stated that the applicants were to be assessed by the ASRB by following the same procedure as was followed in case of other scientists. It is also the case of the applicants that the respondents circulated a policy decision dated 26.6.1995 regarding grant of consequential benefits of assessment in favour of scientists whose promotion to S-2 grade was antedated w.e.f. 1.7.1976, analogous to the applicants. The said policy decision stated that the assessment and re-assessment wherever applicable would be carried out for the period on date 31.12.1981, 31.12.1982, 31.12.1983, 31.12.1984 and 31.12.1985, and it has, therefore, been decided to carry out the assessment as well as re-assessment, wherever applicable, of all the concerned scientists simultaneously. Finally, the respondents considered the applicants and issued orders dated 10.1.2002 and 2.7.2002, wherein the competent authority declared the applicants unfit for promotion. The decision aforesaid was questioned by the applicants by way of another OA No.1784/2004, which was decided on 2.6.2005, wherein it was held that the action of the respondents was de hors the rules and the applicants were being denied their due promotion even though, they had been recommended by ASRB. It is the case of the applicants that as per order dated 29.11.1999, their juniors have been promoted to S-2 grade prior to the applicants, yet the applicants are being denied promotion for undisclosed reasons. A writ came to be filed before the High Court of Delhi challenging the order of the Tribunal dated 2.6.2005, which was dismissed. It is then the case of the applicants that the respondents half-heartedly complied with the orders of the court, and vide order dated 28.3.2006 instructed to antedate promotion of eleven scientists including the applicants w.e.f. 1.7.1976, but despite that the applicants are yet to receive pension arrears, difference in commuted value of pension and revised latest pension order to bank etc. It is pleaded that the respondents have not monitored prompt execution of their order dated 28.3.2006 within the time limit accorded by Honble High Court in its order dated 15.2.2006. Subsequently the applicants made representation dated 15.9.2006 seeking information under RTI Act regarding delay in extending consequential benefits and procedures adopted in the past for antedating consequential promotion to similarly placed scientists. It is pleaded that three decades old past performance records were factually submitted in May, 2002, a few weeks before re-assessment, on 4.6.2002, and the records were forwarded by IVRI and ICAR authorities to ASRB after verification of entries as correct, in respect of assessment periods and posts etc. on Part-I of the document. On 21.5.2002, the Joint Director (Research) and Director IVRI endorsed their positive recommendations in Part IV and V of the document. The respondents confirmed that the said special re-assessment dated 4.6.2002 was in compliance with court orders, and also stated that the assessment for grade S-3 for the period 1976 onwards was not strictly as per ARS rules, but based on directions of the court under special circumstances. As regards consequential benefits, based on simultaneous assessment of three decade old material, 1975-83, submitted in May, 2002, the respondents, it is pleaded, have overlooked the self-speaking title of the document 1975-83, besides foot note instructions recorded on part V of the said records, and that they have overridden court directions and ICAR policy decision on simultaneous assessment, and further that they are yet to execute their orders in respect of consequential merit promotion to S-3 grade. It is further pleaded that time and again, the respondents were approached to communicate the rule position/court order that empowered/authorized them for evaluation/assessment of three decade old past performance material 1975-83. These records were time and again assessed (in case of applicant Dr. R. L. Sharma on 10.7.1984, 18.8.1987 and 4.6.2002) and were positively recommended by the ASRB, but the respondents are mute on this issue. ASRB and ICAR authorities were requested to communicate the bare facts under RTI Act, 2005, that authorized them to repeatedly insist on submission of fresh material for the period 1.7.1976 to 31.12.1985 (nine and half years) against factual residency period of five years (1.7.1976 to 31.12.1980) without disclosing ASRB findings/recommendations on assessment material for the period 1975-83 submitted in May, 2002. As per the case set up by the applicants, evidently it implies to preconceived decision, detectable to ASRB that the applicants may not be recommended consequential benefits including merit promotion to S-3 grade with effect from due date. There are pleadings as regards discrimination. In that regard, it is pleaded that the respondents have been adopting altogether different and discriminatory procedure/approach for unknown reasons, and that they did not part with bare facts in respect of the dates of re-assessment and number of occasions Dr. M. H. Khan and others faced ASRB prior to granting them analogous benefits including merit promotion vide order dated 5.7.1996. ICAR authorities made written submissions on affidavit dated 9.10.2001 and stated in para 3, the scientists (applicants) are to be assessed by ASRB by following the same procedure which was followed in the case of other scientists. However, it is the case of the applicants that in their case the respondents are adopting altogether different approach/procedure to extend consequential benefits including merit promotions to next higher grade(s), and, therefore, the applicants did approach ICAR and ASRB authorities under RTI Act to part with bare facts and communicate the date(s) and the number of occasion(s) Dr. M.H. Khan and others were subjected to simultaneous re-assessment or fresh repeated assessment for the period 1.1.1976 to 31.12.1980 onwards, to extend consequential benefits vide office order dated 5.7.1996, but the authorities are yet to communicate the bare facts. In view of office order dated 23.11.2000, it is the case of the applicants, the respondents ought to have considered the applicants for promotion from S-2 to S-3 grade on the basis of records from 1975-83 onwards as submitted in May, 2002, but the respondents without considering the orders passed by the High Court as well as this Tribunal, again passed the impugned orders. It is in the facts and circumstances as mentioned above that the applicants have filed this Original Application with the relief as already indicated in the earlier part of the judgment. When the matter came up for hearing before us on 27.2.2008, learned counsel representing the applicants sought adjournment to file an additional affidavit. In the impugned orders it has been mentioned that the applicants had agreed to submit the papers for reconsideration by the respondents with regard to relief to be granted to them and when the counsel was confronted that there were no pleadings to challenge the factual position mentioned in the impugned order, time was sought to file an additional affidavit. On 7.4.2008, an additional affidavit has been filed by applicant Dr. R. L. Sharma, wherein it has inter alia been mentioned that he had never agreed to file a fresh assessment form.
3. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and by filing their counter reply hotly contested the cause of the applicants. There are some preliminary issues, but inasmuch as, either no arguments have been addressed based thereon or the same may be repeated in the reply on merits, there would be no need to make a mention of the same. Before making reply on merits of the controversy, the respondents have given the background information required for better appreciation of facts and issues involved in the OA. It is stated that the crux of the grievance of the applicants is total compliance and implementation of the orders of this Tribunal in OA N.1948/1996 wherein it had been ordered that We are inclined to dispose of this OA with a direction to the respondents to consider the case of the applicant for promotion from S-1 to S-2 grades from the earliest date from which any of the aforementioned officers have been so promoted. If the applicant is promoted as S-2 and on that basis promoted to still higher grade, he will be entitled to all consequential benefits except monetary benefits in respect of backwages. It is pleaded that the bottom line of the orders of the Tribunal is, if the applicant is promoted as S-2 and on that basis promoted to still higher grade he will be entitled to all consequential benefits except monetary benefits in respect of back wages. Accordingly, the applicants have been assessed and orders have been issued for their placement as Scientist S-2 w.e.f. 1.7.1976. However, the procedures require that they should submit the required assessment proforma etc. for subsequent assessment to higher grade of S-3 as the subsequent assessment would be due after five years in the respective lower grade, i.e., w.e.f. 1.7.1981. In case the applicant was not found fit for being placed in the next higher grade of S-3, he could also be recommended for some advance increments, and for this the Board essentially requires his assessment proforma without which it would be incapable of assessing and recommending further placement/advance increments. It is pleaded that the first applicant has assumed that he should be considered as S-3 based on his earlier papers submitted for placement as S-2, and that the ASRB has clarified that this would not be administratively tenable. It is further pleaded that this precise matter was also raised by the first applicant in a contempt case no.239/2006 in this Tribunal, and the Tribunal while dismissing the contempt petition, upheld that this expression would mean that just as the records for a stipulated period are necessary for consideration for promotion from S-1 to S-2 grade, similarly records relating to the relevant period shall be considered for promotion for S-2 to S-3 Promotion to grades S-2 and S-3 cannot be on the basis of same records. Instead of complying with this requirement, it is pleaded, the applicants have been taking recourse to the RTI Act and after repeated failure have now again approached this Tribunal on the same issue, whereas the respondents have been incapable of total compliance because of the adamant and improper stand being taken by the applicants. It is then pleaded that the applicants have totally concealed the fact regarding the contempt petition filed by one of the applicants and its outcome as mentioned above.
4. While giving the brief facts of the case, it has been mentioned that the ICAR formed a service, namely, Agriculture Research Service for its scientists with effect from 1.10.1975. The incumbents who were holding scientific or technical positions in the pay scale of Rs.425-700 to Rs.2000-2500 as on 30.9.1975 and holding minimum educational qualifications as prescribed, were initially inducted into the service. The scientific and technical personnel holding the pay scale of Rs.650-1200 (Class II) and Rs.700-1300 (Junior Class I) as on 30.9.1975 were inducted as S-1 in the pay scale of Rs.700-1300. Subsequently, based on the judgment of the High Court of Delhi in case of Dr. M. L. Lodha & others in CWP No.1192/1984 and on the recommendations of a high powered committee, all such scientists who were holding junior class I positions in the pay scale of Rs.700-1300, were granted antedation of promotion as scientist S-2 w.e.f. 1.7.1976 in the pay scale of Rs.1100-1600 on the recommendations of the ASRB, which is an independent recruitment agency for ICAR on the pattern of UPSC. Orders were issues in respect of such scientists vide office order dated 27.12.1988, 28.12.1988, 7.2.1989 and 16.3.1995. Subsequently, consequential benefits of promotion to the next higher grade of S-3 or advance increments were granted to such scientists on the recommendations of ASRB as per procedure laid down vide circular dated 26.6.1995. It is pleaded that the applicants in the present OA and in OA No.1948/1995 and OA No.246/1995 were directly recruited as junior class I in the pay scale of Rs.700-1300 but all of them joined in the said pay scale after 1.10.1975, i.e., the constitution of the Agricultural Research Service, and as such, they were not entitled to the benefit of antedation of promotion to grade S-2 as per the judgment in CWP No.1192/1984. Twelve persons, including the applicants in the present OA, then filed OA No.1948/1995 and OA No.246/1996 in the Tribunal seeking the same antedation benefit which was granted to scientists as per the judgment of the High Court in the CWP as mentioned above. A common order came to be passed on 29.11.1999 in both OAs, operative part whereof has since already been reproduced hereinabove. It is pleaded that while examining the judgment of the Tribunal dated 29.11.1999, it was observed that wrong information was submitted by the applicants in para 4.7 of the OA which was inadvertently admitted as a matter of record by the respondents, and as such, the respondents filed a writ petition in the High Court, but the High Court observing that the impugned order did not suffer from a jurisdictional error or legal infirmity, dismissed the same in limine on 21.8.2000. The applicants then filed CP No.19/2001 in OA No.246/1996 and CP No.24/2001 in OA No.1948/1995 in the Tribunal, which were disposed of on 31.7.2001 with the direction to the respondents to implement the order dated 29.11.1999 within two months. The respondents then implemented the orders of the Tribunal by getting the applicants considered through ASRB for antedation of promotion to Grade S-2 w.e.f. 1.7.1976. ASRB recommended 11 applicants for antedation to Grade S-2 and did not recommend one of the applicants based on performance. The recommendations were then submitted to the competent authority, i.e., the Minister of Agriculture, but the same were not accepted by him as the applicants were not found fit for promotion to grade S-2 w.e.f. 1.7.1976. The result was communicated to the applicants vide letter dated 2.7.2002. Aggrieved, the applicants again approached this Tribunal by way of OA No.1784/2004 which was disposed of by the Tribunal vide order dated 2.6.2005 directing the respondents to implement its order dated 29.11.1999. Challenge to this order through a writ petition bearing WP(C) No.870-71 of 2006 failed. A direction came to be issued to the respondents to implement order dated 29.11.1999 within eight weeks. In compliance of the orders of the High Court, the respondents implemented the orders of the Tribunal dated 29.11.1999 by antedating the promotion of 11 applicants to the grade of S-2 w.e.f. 1.7.1976 as per recommendations of ASRB. For consequential benefit of promotion to the grade S-3/grant of advance increments, the applicants were required to be considered again by the ASRB on furnishing necessary five yearly assessment proforma and supplementing information as per procedure laid down vide letter dated 26.6.1995 which had already been provided to them. The applicants have, however, not submitted the desired proforma thereby delaying the total compliance of the order of the Tribunal dated 29.11.1999. It is pleaded that unless the applicants fulfill the requisite requirements, the grievances of the applicants cannot be redressed. In the Agricultural Research Service, it is pleaded, there is a provision of five yearly assessment of scientists, and that promotion to the next higher grades is irrespective of occurrence of vacancies and on the basis of rigorous periodic assessment by an external panel of eminent scientists headed by Chairman/Member, ASRB. A scientist can be allowed to have a personal scale of pay higher than that of his grade, while continuing in service on the basis of a procedure for assessment prescribed by the controlling authority in consultation with ASRB. As per criteria and methods of five yearly assessments for scientists of the ARS as laid down in the ARS Rules, duly filled in prescribed proforma are to be submitted by the concerned scientists as and when occasion arises for his assessment or re-assessment. ASRB considers the cases of such scientists through an assessment committee and submits its recommendations to the ICAR headquarters for obtaining the approval of the competent authority, i.e., President, ICAR, who is Minister of Agriculture in the Central Government. The applicants, it is pleaded, have contended that their cases for consequential benefits are not being considered in accordance with the provisions of OM dated 26.6.1995. Their contention is that they should have been considered from Grade S-1 to Grade S-3 simultaneously. The interpretation of the applicants of the OM dated 26.6.1995 is stated to be absolutely wrong, and that a plain reading of the above OM would clarify the position. The letter aforesaid has been issued with specific reference of the scientists mentioned in the two office orders dated 16.3.1995. All the scientists mentioned in the above office orders have been given the benefit of antedation of their promotion to scientists grade S-2 w.e.f. 1.7.1976 extending the benefit of the judgment dated 5.3.1987 in WP No.1192/1984 of the High Court of Delhi. These scientists have been granted the benefit of antedation as per recommendations of the ASRB. In view of the provisions of letter dated 26.6.1995, the following category of scientists are to be considered for consequential benefits of promotion to the next higher grade S-3 or grant of advance increments as provided in the ARS Rules:
a) The scientists who were junior in Class I position as on 30.9.1995 and had not been assessed for the period ending 31.12.1975.
b) Such scientists who were earlier assessed in the erstwhile grade S-2 without taking into consideration the fact of antedating of their promotion to the erstwhile grade S-2 based on the above office order. The eligibility of such scientists for assessment in the erstwhile grade S-2 has undergone change consequent to the antedation of their promotion to erstwhile grade S-2.
It is pleaded that all the scientists who have been placed in grade S-2 by granting antedation have been asked to furnish their five yearly assessment proforma for the period from 31.12.1981, 31.12.1982, 31.12.1983, 31.12.1984 and 31.12.1985, and that it has been decided to carry out the assessment as well as re-assessment, wherever applicable in respect of the scientists mentioned in office orders dated 16.3.1995 only. It is further pleaded that it becomes clear that only those scientists whose promotion was antedated to grade S-2 w.e.f. 1.7.1976 or subsequent date as mentioned in two office orders dated 16.3.1995 have been asked to furnish their five yearly assessment proforma and supplementary information for considering them for the consequential benefits of grade S-3 or advance increments. The letter aforesaid nowhere mentions that scientists from grade S-1 to grade S-3 and from grade S-2 to grade S-3 are to be considered simultaneously as contended by the applicants, which is neither as per provisions of the ARS Rules nor administratively logical. The cases of the applicants for consequential benefits have also to be considered from grade S-2 as per the provisions of the letter dted 26.6.1995. Accordingly, they have been asked to submit the five yearly assessment proforma for the specific period for which they are to be considered along with supplementary information as per the procedure laid down vide the letter aforesaid. Reference is then to the contempt matter which was dismissed, as already adverted to above. Copy of the order has been placed on records as Annexure R-3. It is the case of the respondents that the applicants have deliberately and purposely concealed the above judgment of the Tribunal, which would leave no scope of doubt that the applicants have to submit the necessary five yearly assessment proforma along with supplementary information as laid down in OM dated 26.6.1995. The respondents, it is pleaded, are keen to implement the judgment of the Tribunal dated 29.11.1999 in totality and, therefore, have provided necessary proforma to the applicants in 2002 itself for submission to the Council duly filled in, so that their assessment from grade S-2 to grade S-3 could be considered by ASRB as per the procedure laid down in the ARS Rules and vide OM dated 26.6.1995, but the applicants are reluctant and hesitant in submission of the required proforma, and they are trying to get the consequential benefit of promotion to grade S-3 without being assessed by ASRB, but the procedure laid down in the ARS Rules and in the OM dated 26.6.1995 has to be followed in their case as has been done in all similar cases. It is pleaded that the applicants are neither ready to follow the prescribed procedure not they are showing any respect for the judgment of this Tribunal vide which the issue of submission of the five yearly assessment proforma has already been decided. As regards the three decade old records, it is the case of the respondents that the so called three decade old records submitted by the applicants were not as per the requirement of five yearly assessment and they are now required to submit the information in proper format. The concept of simultaneous assessment, it is pleaded, is the produce of their own imagination and is not in consonance with the rules and procedure laid down vide letter dated 26.6.1995. As regards information sought for by the applicants, it is pleaded that all the issues that have been raised by them in their request for information under RTI Act have been clarified and disposed of. Copies of the same have been annexed as Annexures R-4 and R-5.
5. The applicants have filed rejoinder to the counter reply filed on behalf of the respondents. The pleadings made therein are by and large reiteration of the pleadings made in the OA. There would be no need to refer to the averments mae therein as nothing in particular based upon the averments made therein has been urged during the course of arguments. The applicants have also filed an affidavit dated 16.8.2009 with some accompanying documents, to which also a counter reply has been filed by the respondents. The applicants have filed yet another affidavit dated 21.8.2009, to which counter and sur-rejoinder have been filed by the respondents and the applicants respectively.
6. Before we may advert to the rival contentions of the learned counsel representing the parties, comment and adjudicate upon the same, it would be useful to have a look at the impugned orders/communications dated 9.2.2007 and 20.7.2007. Order/communication dated 9.2.2007 is addressed to the 1st applicant. This was in reference to his letter dated 18.1.2007 addressed to DG, ICAR and Chairman, ASRB. It has been stated therein that he has totally misinterpreted the contents of letter dated 26.6.1995. The letter, it is stated, was issued for grant of consequential benefits of assessment/review assessment in the erstwhile grade S-2 only and not for the higher grade S-3 simultaneously. The evaluation of his records for the period 1975-1981, it is further stated, was earlier made for promotion to the scientist grade S-2 as per the provisions of ARS Rules. However, the current process of evaluation is stated to be for higher grade S-3 during the same period as per the directions of the Tribunal/High Court. It is clarified that it is not possible to consider the applicant on the basis of same documents for a higher grade for which he was earlier considered for grade S-2, and, therefore, a fresh proforma for the period 1976-1981 and supplementary information for the years 1982, 1983, 1984 and 1985 is necessary for consideration of his case by the ASRB for the grade S-3. This position, it is stated, has been endorsed and upheld by the Tribunal in its orders dated 3.8.2006 in CP No.239/2006 filed by the applicant. The applicant was also informed that he has misinterpreted the contents of ICAR letter dated 23.11.2000 in his own interest, and that the sentence, Having considered the scientist for S-2 grade, ASRB may consider them for S-3 grade also, as per order of the Honble Tribunal would not imply that his promotion for grade S-2 and S-3 has to be considered simultaneously. The intention of the letter, it is further mentioned, was to inform ASRB that in compliance of court directions, the applicants are to be considered for antedation to grade S-2 first and then to allow them consequential benefits of further promotion to grade S-3. It was again made clear that consequential benefits of further promotion to S-3 grade were subject to the acceptance and approval of the competent authority to the recommendations of the Board for antedation of his promotion to grade S-2, and, therefore, the Board was to initially assess the placement in S-2 and subsequently for the next higher grade of S-3, and that it is not an automatic process. The applicant, it is stated, had been time and again requested to submit necessary assessment proforma and supplementary information for being placed before the ASRB, which would resolve the so-called long standing distortions in his seniority and other issues pertaining to pay fixation and revised pension etc. The applicant was again requested to submit the necessary papers to the Council so that the compliance of the directions of the Tribunal is made without any further delay. It is rather mentioned that the Council has been made incapable of fully complying with the directions of the Tribunal/Court because of the delaying tactics and non-cooperative attitude of the applicant, and that further delay would rest squarely on him. The order/ communication dated 20.7.2007, it appears, has been passed by the Council on a reference made to it by CIC. It appears that against the order dated 9.2.2007 the applicant had filed an appeal and the matter then came to be disposed of by the appellate authority constituted by the department to deal with the appeal. The entire background of the case has been given. Reference is made to all the court cases in the Tribunal and High Court, as also the order passed in contempt, already adverted to above. We may only reproduce the relevant part of the order. The same reads as follows:
15. It was explained to the Appellant that this latest judicial pronouncement in his matter on the specific issue of whether the same assessment papers can be considered for promotion from S1 to S2, and S2 to S3, or he needs to file separate papers, leaves no scope for doubt that he has to file assessment papers for 1976-1980 separately. This is what the ASRB and authorities have been requesting him. It was also explained to him that instead of complying with this, recourse to a large number of repeated applications under RTI on the same core matter, with minor variations, chokes the administrative machinery unnecessarily in preparing replies to him. He has also been in the habit of seeking new information at the Appeal stage. To any sane person his entire approach in this matter would appear to be vexatious with no particular purpose.
16. After detailed discussions and persuasion the Appellant was finally convinced that his whole approach in this matter has been somewhat obdurate and not based on any rational analysis of objective situation consistent with the basic objective in the matter. In the light of the legally adjudicated position the applicant agreed to forward the assessment papers in the specified formal. On his request a copy of the specified format was again handed over to him to enable him to forward his papers to the ICAR/ASRB for his subsequent placement from S-2 to S-3 in compliance of the directions of the Honble CAT.
17. With these observations the Appeal(s) of the applicant is disposed off. It is expected that the applicant shall forward the required assessment performa to the Council at the earliest possible as agreed to enable the ASRB to consider his placement to the next higher grade.
7. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. Even though, the issue which may now appear to be surviving is limited, the applicants have filed OA, two affidavits, rejoinder and sur-rejoinder. The respondents have also matched them in pleadings in equal measures. The identifiable issue as may now survive needs mention of the background in the context of the pleadings and accompanying documents, as culled out by us, by ignoring unnecessary verbiage. The Agricultural Research Service (hereinafter to be referred as ARS) was constituted with effect from 1.10.1975. Prior to formation of the ARS, there existed 12 categories of posts with the following pay scales:
(1) Rs.425-700 (2) Rs.550-900 (3) Rs.650-1200 (4) Rs.700-1300 (5) Rs.1100-1600 (6) Rs.1300-1700 (7) Rs.1500-1800 (8) Rs.1500-2000 (9) Rs.1800-2000 (10) Rs.1800-2250 (11) Rs.2000-2250 (12) Rs.2000-2500 After promulgation of the Rules of 1975 and the formation of ARS, the following grades and pay scales were introduced:
GRADE PAY SCALE Scientist (S) Rs.550-900 Scientist 1 (S-1) Rs.700-1300 Scientist 2 (S-2) Rs.1100-1300 Scientist 3 (S-3) Rs.1500-2000 [ In view of the Rules of 1975, scientists could be appointed to Grades S-1, S-2 and S-3 on promotion on the basis of merit as determined in the manner specified in rule 19, which reads as follows: 19. Merit Promotion and Advance Increments - There shall be a system of merit promotion from one grade to the next higher grade and advance increment within the same grade in the manner specified below:
(1) The number of posts sanctioned shall relate to the total number in the group of grades as a whole, and not to each individual grade. Promotion from one grade to the next higher grade shall be done periodically on assessment of performance by a procedure to be prescribed by A.S.R.B. The promotion of deserving scientists to the next higher scale will be irrespective of the occurrence of vacancies in the higher scale.
(2) A scientist will be eligible for screening for promotion of advance increment after the expiry of a period of five years service in the grade.
(3) The first screening of scientists for promotion of advance increment shall be made within one year of the introduction of Agricultural Research Service and thereafter, once a year as early as practicable after 1st January in respect of all who have become eligible for consideration for promotion on or before the last day of the previous year ending on 31st December.
(4) Promotion or grant of advance increment to the successful scientist shall be given with effect from 1st July of the year in which the assessment is made. As may appear from the rule reproduced above, promotion was to be made by judging the individual merit on the basis of service record.
8. Dr. R. L. Sharma, one of the applicants herein, filed OA No.246/1996 pleading therein that he initially joined as SRA in Class II service of the ICAR in the year 1972. In 1975 he applied for Class I post of scientist in the pay scale of Rs.700-1300. He claimed that he was selected on 8.8.1975 and on 22.9.1975 he submitted his joining report as well. He was aggrieved that the respondents had changed their stance and were treating him as having been appointed with effect from 18.12.1975, the date on which his medical fitness documents were received. The Tribunal while dealing with the matter observed that the genesis of the case lied in the relaxation granted to certain Class II departmental candidates on their induction into the ARS, which was constituted w.e.f. 1.10.1975, and that in exercise of powers conferred under rule 19(2) of the Rules of 1975, Director General accorded relaxation to the Class II officers who were allowed to count their Class II service towards assessment for appointment as Scientist Class I. This led to a similar claim on the part of directly recruited Class I officers for similar relaxation, and their plea was allowed by the Tribunal in Dr. M. L. Lodha v ICAR & others, decided on 28.1.1992. The applicant submitted that by showing him as appointed later than 1.10.1975, he had been deprived of the benefit of the High Courts orders for grant of similar relaxation for promotion from S-1 to S-2 scale in the ARS. After so observing the Tribunal referred to the order dated 22.4.1977 passed by the respondents, whereby the applicant along with 188 others had been shown to have been appointed in ARS (S-1 scale) w.e.f. 1.10.1975. Attention of the Tribunal was also drawn to decision of ICAR dated 18.11.1978, which reads as follows:
3. Induction into ARS when appointed after 01.10.1975 but recruitment action initiated before that date. Scientific and Technical personnel possessing prescribed qualifications and holding posts in specified grades, who were in regular service of the Council on 01.10.1975 and scientists who were appointed after 01.10.1975 are/were also eligible for induction into ARS provided the recruitment action was initiated prior to that date i.e. 01.10.1975. In relaxation of Rule 23 of ARS Rules, Technical personnel appointed in councils service after 01.10.1975 on the basis of the recruitment action (advertisement, interview) initiated prior to that date may be considered for induction with effect from the date of their joining the Councils service (in Technical posts) subject to possession of Masters Degree qualification on that date. The plea of the applicant was that the recruitment of officers to the post to which he had been appointed had been initiated well before 1.10.1975, and, therefore, he was entitled to induction into ARS w.e.f. 1.10.1975, and that number of other persons who were appointed as scientists under ICAR after the applicant and were allowed the benefit of relaxation had been on that basis promoted from S-1 to S-2 grade before the applicant. The Tribunal, after making a mention of the defence projected by the respondents, observed that it was not necessary for the purpose of relief sought for by the applicant to go into the question as to the date of appointment of the applicant. The main grievance of the applicant was that certain persons whose names had been mentioned in paragraph 4.7 of the O.A. and who were admittedly appointed as S-1 on dates subsequent to that of the applicant in 1975, had been promoted to S-2 grade earlier to the applicant. Names of such persons with the dates of their promotion have been mentioned in the order itself. They were Dr. J.R.Rao (1.7.1978), Dr. H. C. Malviya (1.7.1976), Dr. M.N. Malhotra (25.9.1976), Dr. V. K. Srivastava and Dr. Ravi Chandra (1.7.1976). The OA, while observing so, was disposed of with the direction to the respondents to consider the case of the applicant for promotion from S-1 to S-2 grade from the earliest date from which any of the aforementioned officers had been so promoted, and further that if the applicant was promoted as S-2 and on that basis promoted to still higher grade, he would be entitled to all consequential benefits except monetary benefits in respect of backwages. The respondents would not implement the judgment aforesaid, as they were of the view that wrong information came to be furnished to this Tribunal in para 4.7 of the OA, which was inadvertently admitted as a matter of record by the respondents, and as such a writ petition came to be filed before the High Court, which was dismissed. A contempt petition thereafter came to be filed, wherein a direction was given to the respondents to implement the order dated 29.11.1999 within two months. The respondents would yet not grant the desired relief to the applicants, as in purported compliance of the orders passed by the Tribunal, they came to the conclusion that the applicants were not found fit for promotion to S-2 grade w.e.f. 1.7.1976. The result was communicated to the applicants vide letter dated 2.7.2002. Aggrieved, the applicants filed another Original Application bearing OA No.1784/2004, wherein the stand of the respondents that the applicants were not found fit for promotion to S-2 grade was held to be incorrect, as a direction had already been issued to them to promote the applicants to S-2 grade from the date persons named above had been promoted. In para 13 of its order the Tribunal observed that the rights and contentions of the applicants and the respondents stood decided in accordance with the order dated 29.11.1999. It was further observed that from the order dated 29.11.1999 it was clear that the persons named above were held to have been appointed to S-1 grade after the appointment of the applicants, and that there was a clear finding of the Tribunal that the applicants were appointed on 18.12.1975. As regards the defence of the respondents that the applicants were not found fit for promotion, it was observed that the respondents in their counter reply had stated that the cases of the applicants were referred to ASRG for consideration and recommendations were received, but the recommendations were placed before the Agriculture Minister, who is the President of ICAR, and he had held that the applicant were not fit for promotion from the dates claimed by them, and that it was not understood how the applicants were not fit for promotion from the dates their juniors were promoted to S-2 when the Tribunal in earlier OAs had recorded a clear finding and passed an order in that regard. It was further observed that it was not the case that the applicants were not recommended by ASRB for promotion; the respondents could not have taken a decision contrary to the finding recorded by the Tribunal in OA Nos.246/1996 and 1948/1995 and hold that the applicants were junior to the scientists whose name appeared in para 7 of order dated 29.11.1999. In fact, after the finding recorded by the Tribunal in para 7 of its order, it was further observed, it would not lay in the mouth of the respondents to have taken a stand that the applicants were not fit for promotion to the S-2 grade from the dates claimed by them. The applicants were clearly held senior to the four scientists who were mentioned in para 7 and they were directed to be granted the benefit of promotion at par with those scientists. The operative part of the order dated 2.6.2005 in OA No.1784/2004 reads as follows:
18. As a result of the above, the OA is allowed. The order dated 2.7.2002, Annexure-A to the OA is set aside. The respondents are directed to promote the applicants from Grade S-I to Grade S-II in accordance with the direction of the Tribunal dated 29.11.1999 reproduced above. The applicants will be granted benefit strictly in conformity with the order of this Tribunal as given in operative portion of the order in OA 246/1996 reproduced above.
9. The respondents, it appears, promoted the applicants as Scientist S-2 from 1.7.1976. This is, however, stated by the applicants to be only half-hearted implementation of the order dated 29.11.1999. It is their case that simultaneously or along with their promotion to S-2 grade, they ought to have been promoted to S-3 grade as well. The dispute as may subsist today is that the applicants would seek simultaneous promotion to S-3 grade, whereas the respondents would insist upon that on promotion to S-2 grade, their service record of next five years has to be examined to find out as to whether they are fit for promotion, and inasmuch as, the applicants are not submitting fresh assessment forms in the duly prescribed proforma, they have rendered the respondents incapable of passing appropriate orders. It may be recalled that in the impugned orders it has been clearly mentioned that the applicants had agreed to submit the relevant assessment forms, but vide additional affidavit adverted to above, they would deny such concession made by them before the respondents. We need not go into this question as it would be more appropriate to decide the controversy on merits, even though, we may hasten to add that factual aspects contained in the impugned orders unless challenged on some cogent grounds, are to be treated as correct. In the present case, as mentioned above, the affidavit came to be filed only when the applicants were confronted that they had not denied the factual position mentioned in the impugned orders, in the OA.
10. We have already referred to the provisions of the Rules of 1975. Rule 19 deals with merit promotion and advance increments. There are three grades of scientists, i.e., S-1, S-2 and S-3 grades. Promotion is from one grade to the next higher grade. This has to be done periodically on the assessment of performance by a procedure to be prescribed by ASRB. The promotion of deserving scientists to the next higher scale is to be irrespective of the occurrence of vacancies in the higher scale. In para 4.1 of the counter reply, the respondents have pleaded that there is provision of five yearly assessment of scientists, and that promotion to the next higher grade is irrespective of occurrence of vacancies and on the basis of rigorous periodic assessment by an external panel of eminent scientists headed by the Chairman/Member ASRB, and further that a scientists can be allowed to have a personal scale of pay higher than that of his grade, while continuing in service on the basis of a procedure for assessment prescribed by the controlling authority in consultation with ASRB. As per criteria and method of five yearly assessments for scientists as laid down in the Rules of 1975, duly filled in prescribed proforma are to be submitted by the concerned scientist as and when occasion arises for his assessment or re-assessment. ASRB considers the cases of such scientists through an assessment committee and submits its recommendations to the ICAR for obtaining approval of the competent authority, i.e., President, ICAR who is the Minister of Agriculture in the Central Government. The applicants would not refer to anything as regards the rules and instructions mentioned above in the OA. In the rejoinder that has been filed on behalf of the applicants, reply to the corresponding para is that the respondents are trying to mislead this Tribunal. The facts and circumstances how the respondents are trying to mislead the Tribunal have been enumerated. It has been mentioned that the claim of the respondents that ASRB assessment committee comprises external panel of eminent scientists would not always be true, and that on 4th June, 2002 the applicants witnesses that some members of the committee did not even born as researchers/academicians as on the fateful date of antedating, i.1., 1.7.1976, and were far junior to the applicants. It is then pleaded that the instant case is of one time re-assessment under court orders dated 6.3.2002, and that it would not be judicious to equate the case with routine first ever fresh cases of assessment, and further that the procedure discussed in the para under reply would be applicable to fresh assessment cases only. It is then pleaded that correct interpretation of the order of the respondents would need careful collective reading and analysis of the first line of para 1, and contents of paras 3 and 5 of ICAR policy decision dated 26.6.1995, and that the applicants fulfilled all laid down conditions for simultaneous re-assessment on 4.6.2002 at ASRB. It is then pleaded that the correctness of these facts would be further substantiated by the respondents own order dated 23.11.2000, when a modest beginning of implementation exercise was made and two sets of past performance records of the applicants were duly recommended by the competent authority and were forwarded to ASRB for evaluation and recommendation, prior to simultaneous re-assessment dated 4.6.2002. There are only arguments but no specific denial to the procedure as envisaged under the rules and instructions for merit promotion from one grade to another. At this stage, it may be relevant to mention that when the orders passed by this tribunal in OA No.1784/2004 decided on 2.6.2005 were not being implemented, the applicants filed a contempt petition in this Tribunal which was dismissed on 3.8.2006. In para 3 of the order passed in the contempt petition it has been mentioned that the counsel representing the applicant relying on Annexure CCP-IV which was office order dated 23.11.2000, stated that ICAR had taken the view that the applicant among others was to be considered for promotion to the grades S-2 and S-3 on the basis of five yearly pro forma/supplementary information/AARs for the period 1975-79, and further that the counsel maintained that the respondents had vide order dated 23.8.2006 (Annexure CCP-II) ventured to take action for considering the applicant, among others, for the next higher grade of S-3 after completion of five years service in grade S-2. Vide Annexure CCP-III dated 15.6.2006 IVRI had forwarded forms for assessment/promotion to the grade of scientist S-3, for onward transmission to the Councils headquarters/ASRB. The contention of the counsel that while the respondents were to consider the applicant for promotion to S-3 grade on the basis of the same record of five years for which he had been considered for grant of grade S-2, and therefore, their action would be deliberate violation of the directions of the Tribunal, has been noted. The Tribunal was shown Annexure CCP-IV dated 23.11.2000 by the counsel for the applicant to contend that the respondents were considering the applicant for promotion to S-2 grade and further promotion on the basis of ACRs for the periods ending 1975, 1976, 1977, 1978 and 1979, and as such their action for gathering ACRs for further periods for considering him for promotion to S-3 grade would be unwarranted. The Tribunal then noted the relevant part of the order dated 29.11.1999 passed in OA No.246/1996, as also OA No.1784/2004. Para 7 of the order containing reasons for rejecting the contempt petitions reads as follows:
7. Reliance has been placed on Annexure CCP-IV dated 23.11.2000 contending that earlier on respondents were considering applicant for promotion to S-2 grade and S-3 grade on basis of ACRs for the years 1975-1979 and as such respondents action to collect ACRs for further periods was unnecessary. It has further been contended on behalf of applicant that in terms of directions contained in order dated 29.11.1999 in OA No.246/1999, applicant ought to have been considered for further promotion from S-2 to S-3 on the basis of the same records as formed the basis of consideration for promotion to S-2 grade. In our considered view the expression on the same basis stated in orders dated 29.11.1999 in OA No.246/1996 does not imply that the provisions in the rules for promotion have to be given a go bye. This expression would mean that just as the records for a stipulated period are necessary for consideration for promotion from S-1 to S-2 grade, similarly records relating to the relevant period shall be considered for promotion from S-2 to S-3. Respondents have accorded to applicant antedation of promotion to the grade of Scientist S-2 w.e.f. 1.7.1976 vide CCP-II dated 28.3.2006. Respondents action towards considering applicant for the next higher grade of S-3 cannot be faulted. Applicants claim has to be considered by respondents in terms of the relevant rules and instructions. Promotion to grades S-2 and S-3 cannot be on the basis of same records. The claim has to be considered after completion of five years service in grade S-2.
11. Shri Tiwari, learned counsel representing the applicants, relies upon the same sentence, and in particular, the words on the same basis stated in order dated 29.11.1999 to urge that the case for promotion of the applicants to S-2 and S-3 grades ought to have been considered simultaneously, and as regards the findings of the Tribunal reproduced above, he would contend that the same are summary in nature and cannot be binding on the applicants. We do not find merit in the contention of the learned counsel as noted above. At this stage, even there is no need to go into the relevant provisions of the rules and instructions, as the case of the applicants is only to implement the order of this Tribunal dated 29.11.1999 fully, but yet we have gone through the same and our independent view is that there has to be a periodic assessment of the services rendered by a scientist seeking promotion from one grade to higher grade. It cannot be automatic and on the basis of same record which may be relevant for one grade. The applicants want simultaneous assessment for their promotion to S-2 and S-3 grades, and that too based upon the same records. We may accept that if by the time the applicants were given promotion to S-2 w.e.f. 1.7.1976, and those whose names have been mentioned above had been promoted to S-3 grade, the applicants may have been simultaneously considered for promotion to S-2 and S-3 grades, but by no stretch of imagination can it be said that promotion to S-3 grade would be on the basis of same record as was required to be considered for promotion to S-2 grade. The findings recorded by this Tribunal in the contempt petition may be tentative or not binding as rendered in summary proceedings, but we are in complete agreement with the same. There is no material whatsoever brought on record which may show that the applicants by virtue of orders of the Tribunal dated 29.11.1999 have to be given promotion both to S-2 and S-3 grades on the same day, and that too based on the same record. It is the positive case of the respondents not disputed anywhere that the record of those for the relevant period who were promoted to S-3 grade was taken into consideration and the competent authority had found them fit for promotion. The applicants would not allow this procedure to be gone into by the respondents and would obdurately stick to their stand by wrongly interpreting the orders passed by this Tribunal that they had to be promoted to both S-2 and S-3 grades on the same day based on the same records. We may repeat and reiterate that even if the applicants had to be promoted if others named above had been promoted to S-3 grade by the time the applicants were promoted to S-2 grade, but it is only the record after 1976 onwards for five years which had to be taken into consideration, which the applicants would not permit the respondents to do. Even though, an affidavit has been filed by the applicants that they had not agreed to submission of fresh assessment forms in the prescribed proforma for consideration of their promotion to S-3 grade, as mentioned in the impugned orders, but the denial by them seems to be only when confronted by this Tribunal. The same does not appear to be true. From the records, we find that it is not that the respondents are the stumbling block in the way of the applicants for promotion to S-3 grade. In fact, they want to consider their promotion to S-3 grade in strict compliance of the orders passed by the Tribunal, but there is a procedure to be gone into. It would not be possible for the respondents to promote the applicants to S-3 grade without going through the required procedure. We are of the firm view that instead of rushing to this Tribunal, the applicants would have done better to comply with the directions by filling up the assessment proforma, which was actually given to them, and return the same to the respondents after filling it so that their cases for promotion to S-3 grade could be considered. The applicants can yet fill up for assessment forms and hand them over to the respondents. It appears to us that the applicants have retired and if that be so, the respondents would render them full assistance in having access to their records to fill up the prescribed proforma by permitting them to visit the office and see the records. If the applicants may choose to do so and submit the prescribed proforma after filling the same, the respondents will deal with the cases of the applicants for their promotion to S-3 grade as expeditiously as possible and preferably within a period of three months from the date needful is done by the applicants. Surely, if the applicants are found fit for promotion to S-3 grade, they would be so promoted from a date persons named above were promoted to S-3 grade. The applicants may not be entitled in that case to pay and allowances of the promoted post, but surely, their pension would be fixed as if they had retired on the post in S-3 grade. If some of the applicants may not have retired they will get the actual pay from the date the orders promoting them to S-3 grade are passed.
12. We hope and wish that this matter, which is lingering on eversince 1999 for implementation of the orders passed by this Tribunal, is given a quietus by observations and directions as mentioned above. In the peculiar facts and circumstances of the case, however, there shall be no order as to costs.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/