Central Administrative Tribunal - Delhi
R R Bakde vs M/O Environment And Forests on 4 January, 2023
1
OA No.2549/2015
Central Administrative Tribunal
Principal Bench: New Delhi
OA No.2549/2015
Reserved on: 15.12.2022
Pronounced on:04.01.2023
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
R.R. Bakde, Retd. Scientist 'C'
National Museum of Natural History,
Barakhamba Road,
New Delhi-110001.
S/o Shri Ram Chandra Ji Bakde,
R/o House No.34B, Pocket A,
Mayur Vihar, Phase-II,
Delhi-110091.
....APPLICANT
(By Advocate : Shri Vishwendra Verma)
Versus
1. The Secretary,
Ministry of Environment & Forests,
Indira Gandhi Paryavarna Bhawan,
Jor Bagh, New Delhi-110003.
2. The Director,
National Museum of Natural History,
(Ministry of Environment & Forests),
FICCI Museum Building,
Barakhamba Road, New Delhi-110001.
3. The Secretary,
Department of Personnel and Training & Pensions,
Ministry of Home, North Block,
New Delhi-3.
(By Advocate : Shri Gyanendra Singh for Shri Virendra
Singh)
2
OA No.2549/2015
ORDER
Mr. R.N. Singh, Member (J):
Applicant has filed this Original Application (OA) under Section 19 of the Administrative Tribunals Act, 1985, aggrieved by the order passed by the respondents on 09.03.2015 whereby his representation was not considered by the respondents as per the directions of the Hon'ble Supreme Court in SLP No.6864/2011 in the matter of Union of India v. S.K. Murti. He has prayed for the following reliefs:
"i) to allow the O.A. and direct the Respondents to antedate the award of promotion under the FCS to the next grade to the applicant as per their respective eligibility as mentioned above and as on the due dates mentioned above respectively after considering the period of services rendered by the Applicant with all consequential benefits; and/or
ii) to pass any other and further orders as may be deemed fit and proper in the interest of justice."
2. Brief facts of the case are that the applicant was selected as a Scientist SC under the category of Scheduled Tribe (ST) through an All India Level Selection and joined in National Museum of Natural History, which is a subordinate office 3 OA No.2549/2015 under respondent no.1, w.e.f. 17.05.1993 vide office order no.5-7/92 NMNH/Admn.
2.1 The respondents introduced Flexible Complementary Scheme (FCS) in respect of Scientific cadre for consideration of promotion vide notification dated 23rd September, 1987, according to which the departmental review committee was to be constituted twice a year, i.e., 1st January and 1st July of every year for those who have completed five years service on the post. The effective date of promotion for those who are found eligible for promotion would be 1st January or 1st July of the subsequent year as the case may be.
2.2 The respondent no.1 considered the case of the applicant and recommended his in-situ promotion w.e.f. 01.08.1988 under the FCS vide letters dated 15.01.1999, 15.10.1999, December, 1999, 16.11.1999, 21.03.2000 and 06.04.2000 (Annexure A-2 colly).
2.3 After a gap of 18 months the applicant was asked to appear before the selection committee on 19.06.2000 without giving any reason for the delay. The applicant was under the impression that 4 OA No.2549/2015 despite the delay he would be given in-situ promotion from retrospective date, i.e., 1st July, 1998 as per the practice being followed by the respondents. He was, however, shocked to see that his promotion was considered on the basis of modified FCS notification No.2/41/97-98/PIC issued vide office memorandum dated 09.11.1998 of Department of Personnel and Training, which is illegal in the opinion of the applicant. 2.4 The promotion of the applicant, however, could not be considered on the basis of the modified FCS as it was overdue since July, 1988 and pending for long before the modified FCS came into force. The applicant approached the respondents personally and requested them several times to grant promotion from the due date, i.e., 1st July, 1998. He was, however, given an impression that there was a case pending in the court on similar issue and that his case would be considered after the decision in the said case is available.
2.5 The applicant in the hope that he will get justice again approached respondent no.1 through 5 OA No.2549/2015 representation dated 12/13/04/2006, ventilating all his grievances. The said representation was followed by reminder dated 02.06.2007. The respondents, however, vide letter dated 29.08.2007 rejected the representation of the applicant. Aggrieved by rejection of his representation applicant submitted another representation dated nil to the respondents and also forwarded a copy of the same to the National Commission for SC. 2.6 The Hon'ble Supreme Court vide order dated 02.05.2011 in SLP(C) No.CC6864/2011 in the matter of Union of India & Anr. V. S.K. Murti directed the concerned authorities/departments to give promotions to the similarly situated persons from the date of eligibility and also directed that the similarly situated persons shall get the relief irrespective of whether they have approached the High Court or not.
2.7 The applicant submits that his case is completely similar and identical to the respondents in SLP (C) No.CC6864/2011 and have got the relief. The respondents have implemented the decision of the Hon'ble Supreme Court in S.K. 6 OA No.2549/2015 Murti's case (supra). It is further submitted that similar issue of effective date of promotion came up for adjudication before the Hon'ble High Court of M.P. in case no.WP/3073/1997 titled Dr. A.K. Mandal v. Director General ICFRE and Anr., where the Hon'ble High Court has allowed the similar claim. The applicant submits that in another similar case, 11 other Scientists of Botanical Survey of India filed Original Application No.826/2003 thereby praying for promotion with effect from the date of eligibility. The said, OA, however, was dismissed by the Tribunal. The review filed against the decision of the Tribunal was also dismissed by the Tribunal vide order dated 14.01.2004. The applicants therein challenged the decision of the Tribunal before the Hon'ble High Court of Delhi in Writ Petition (C) no.14263/2004. The Hon'ble High Court, however, allowed the Writ Petition and directed the respondents to give all the benefits to the applicants therein on the basis of deemed promotion w.e.f. 01.01.1999. It is, therefore, submitted by the applicant that being similarly situated he is also entitled to the same 7 OA No.2549/2015 relief/similar relief. The applicant has further submitted that similar view has also been taken by the Tribunal in OA No.4098/2011. When the applicant was not granted in-situ promotion, he had filed OA No.4581/2014 before this Tribunal. The Tribunal disposed of the said OA vide order dated 23.12.2014 with a direction to the respondents to consider the case of the applicant in the light of the decision of the Hon'ble Supreme Court in S.K. Murti's case (supra) within a period of eight weeks from the date of receipt of a certified copy of that order and communicate their decision to him. Thereafter, the applicant filed a representation requesting the respondents to refix his pay on the post of Scientist D (Scientist C) as on 01.07.1998 after antedating promotion with all consequential benefits and fix the annual increment till the date of retirement on 30.11.2011 and also to refix his pension accordingly. He has also prayed for payment of arrears. The said representation of the applicant was rejected by the respondents vide order dated 09.03.2015, without even considering the dicta of the Hon'ble Supreme Court in the case of S.K. Murti (supra) and other 8 OA No.2549/2015 decisions of this Tribunal in different OAs as mentioned above. Hence the OA.
3. Pursuant to the notices issued by this Tribunal the respondents entered appearance and filed their reply wherein they have denied the contentions of the applicant. In the additional affidavit, the respondents have submitted that as per FCS/MFCS issued by DoP&T vide OM No.14017/36/2011-Estt.RR dated 21.09.2012, the DoP&T had instructed that the competent authorities are required to ensure that no promotion under FCS/MFCS is granted with retrospective effect. It is further submitted that vide speaking order No.05/01/2014-P.III dated 09th March, 2015, the case of the applicant could not be considered as per Rule 8.4 of the Ministry of Environment, Forest and Wildlife Scientific Group 'A' Posts Rules, 1987 it is clearly laid down that there shall be no retrospective promotion. It is further submitted that vide OM No.09/12/2012- P.III dated 24th May, 2013 the respondent no.1 sought approval for grant of in-situ promotion in each grade(s) to the scientists of the Ministry from their due date(s)/eligibility date(s) from 01.01.1999 9 OA No.2549/2015 onwards keeping in view the judgments delivered in various court cases filed by scientists of the Ministry, but vide DoP&T communication No.1046246/14/US(Estt.RR-II) dated 27th November, 2014 the DoP&T advised the Ministry not to implement the order without approval of the ACC, which is the competent authority for FCS. It is further submitted that vide DoP&T OM No.09/2/2015-EO(SM.II) dated 28th January, 2022 the DoP&T has mentioned the names of 14 scientists recommended for promotion to the grade of Scientist 'G' as stated by DoP&T in the OM, their cases are cases of normal promotion to the grade of Scientist G and not the cases of promotion with retrospective effect. As such, their cases are different from that of Shri R.R. Bakde (applicant), involving antedating of promotion. It is further submitted that vide OM No.F.No.CS-
14017/6/2017-Estt.(RR) dated 03rd January, 2018 the 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 SLPs filed by MietY till the 10 OA No.2549/2015 final decision of the Apex Court in this case on the issue of ante-dating of promotion of Scientists. The OM dated 03.01.2018 reads as follows:
"OFFICE MEMORANDUM Sub: Ante-dating of promotion of Scientists on the direction of CATS/High Courts - reg.
Department of Personnel & Training (DoP&T) is receiving various proposals seeking comments/approval of DoP&T for implementation of order of Hon'ble CATS/High Courts in the matter of anti-dating of in-situ promotion of Scientists working in various scientific Ministries/Departments/Organizations.
2. Hon'ble Supreme Court in Dr. S.K. Murti's case had uphold the decision of Hon'ble Delhi High Court that in the cases of promotion under MFCS delayed due to administrative reasons, benefits of promotions would be granted from the date the candidate became eligible for promotion. However, Hon'ble CAT Principal Bench, New Delhi in its order dated 29.05.2014 in CA No. 1926/2013 filed by Dr. A. Duraiswami, Scientist 'F' working in Ministry of Environment Forests and Climate Change held that the directions of the Hon'ble Apex Court was inpersonam in respect of. 10 similarly situated co-applicants of Dr. S. K. Murti in the ()A No. 826/2003, and cannot be meant to be extended in rem to the Scientists of all the Scientific Ministries/Departments.
3. Various court cases have been filed before Hon'ble CATs/ High Courts seeking promotions with retrospective effect referring the order of Hon'ble Supreme Court in the Dr.S.K. Murti case. As per MFCS scheme issued by DoP&T vide OM No. AB-14017/37/2008-Estt. RR dated 10.09.2010 and DOP&T OM No. AB-
14017/36/2011-Estt. RR dated 21.09.2012, the Competent Authority are required to ensure that no promotion under FCS/ MFCS is granted with retrospective effect.
4. The issues relating to ante-dating of promotion of Scientist in the Ministry of Electronics & Information Technology (Miet Y) was examined by MietY in consultation with Solicitor General of India in connection with a case filed by Shri Vinay Kumar, Scientist 'E' NIC, in CAT, Principal Bench, 11 OA No.2549/2015 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)
4. Hon'ble Supreme Court in its order dated 08.07.2016 has directed in the SLP No. 4155/2016 that the impugned judgment shall remain suspended during the pendency of the appeal.
5. 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."
The respondents have also relied on a decision of this Tribunal in RA No.157/2017 in OA No.2894/2012, decided on 17.08.2019, where this Tribunal has allowed the review filed by the respondents and dismissed the OA filed by the original applicants seeking similar/identical relief. 12 OA No.2549/2015
4. We have heard the learned counsels appearing for both the parties and have also gone through the pleadings on record, including the judgments of this Tribunal, Hon'ble High Court of Delhi and Hon'ble Supreme Court, relied upon by both the parties. We are of the view that once the decision of the Tribunal has been upheld by the Hon'ble Supreme Court it has to be followed by all courts, including this Tribunal.
5. Their Lordships of the Supreme Court in the matter of Satrucharla Vijaya Rama Raju v. Nimmaka Jaya Raju and others, (2006) 1 SCC 212, followed in the matter of Deccan Paper Mills Co. Ltd. v. Regency Mahavir Properties and others, AIR 2020 SC 4047, described the judgment in rem as under: -
"10. ... A judgment in rem is defined in English law as "an adjudication pronounced (as its name indeed denotes) by the status, some particular subject-matter by a tribunal having competent authority for that purpose..."
6. The Constitution Bench of the Supreme Court in the matter of Ambika Prasad Mishra v. State of U.P. and others, (1980) 3 SCC 719, has held that every new discovery or argumentative 13 OA No.2549/2015 novelty cannot undo or compel reconsideration of a binding precedent. It was pertinently observed by their Lordships as under:
"6. It is wise to remember that fatal flaws silenced by earlier rulings cannot survive after death because a decision does not lose its authority "merely because it was badly argued, inadequately considered and fallaciously reasoned". ..."
7. The above-stated principle of law qua the binding effect of judgment was followed by the Supreme Court in the matter of State of Gujarat and another v. Justice R.A. Mehta (Retired) and others, (2013) 3 SCC 1. It was observed as under: -
"Binding effect of the judgment
61. There can be no dispute with respect to the settled legal proposition that a judgment of this Court is binding, particularly when the same is that of a coordinate Bench or of a larger Bench. It is also correct to state that even if a particular issue has not been agitated earlier or a particular argument was advanced but was not considered the said judgment does not lose its binding effect, provided that the point with reference to which an argument is subsequently advanced has actually been decided. The decision therefore, would not lose its authority "merely because it was badly argued, inadequately considered or fallaciously reasoned". The case must be considered taking note of the ratio decidendi of the same i.e. the general reasons or the general grounds upon which the decision of the court is based, or on the test or abstract from the specific peculiarities of the particular case which finally gives rise to the decision."
8. Similarly, in the matter of State of Uttar Pradesh and others v. Arvind Kumar 14 OA No.2549/2015 Srivastava and others, (2015) 1 SCC 347, it was held by their Lordships of the Supreme Court that declaration of law can be treated as judgment in rem and its benefit is available to all similarly situated persons irrespective of whether they had approached court or not. It was observed as under:
"22. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under.
22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.
22.2. However, this principle is subject to well- recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.
22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With 15 OA No.2549/2015 such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma v. Union of India, (1997) 6 SCC 721). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence."
9. Likewise, the Supreme Court in the matter of Anil Ratan Sarkar and others v. State of W.B. and others, (2001) 5 SCC 327 has clearly held that administrative instructions/ circulars /orders cannot infiltrate on to an arena covered by judicial orders. It was observed by their Lordships as under: -
"Administrative ipse dixit cannot infiltrate on to an arena which stands covered by judicial orders."
10. Moreover, a Division Bench of this Tribunal where both of us constituted the Bench have allowed a similar matter in OA No.3576/2017 - Harcharan Lal & Ors. v. Union of India & Ors., vide order dated 02.12.2022.
16OA No.2549/2015
11. We have also gone through the OM dated 03.01.2018, which has been relied upon by the respondents to contend that the issues relating to ante-dating of promotion of Scientist in the Ministry of Electronics & Information Technology (MietY) was examined by MietY in consultation with the learned Solicitor General of India in connection with a case filed by Shri Vinay Kumar, Scientist 'E' NIC, in CAT, Principal Bench, New Delhi where the applicant also sought ante-dating of his promotion to Scientist 'D' and Scientist 'E' due to delay in considering review promotion. Subsequently, they have filed SLPs before Hon'ble Supreme Court challenging the order of Hon'ble High Court in SLP CC No.4155/2016 - Union of India & Ors. v. Vinay Kumar, SLP CC No.7196/2016 - Union of India & Ors. v. Santosh Wadhwa and SLP CC No.26757/2016 - Union of India & Ors. v. Iqbal Hasan and Ors. Keeping this in view 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 learned Solicitor General of India and the stand 17 OA No.2549/2015 taken in the SLP filed by MietY till the final decision of the Apex Court in the matter on the issue of ante-dating of promotion of Scientist.
12. We have given anxious consideration to the contention of the respondents. We find that the cases mentioned in the OM of DoP&T have since been decided by the Hon'ble Supreme Court in Civil Appeal No.6359/2016 -Union of India & Ors. v. Vinay Kumar with Civil Appeal No.7234/2016, Civil Appeal No.2575/2017 and Special Leave Petition (C) No.29605/2018. For the sake of convenience, the decision of the Hon'ble Supreme Court in Union of India & Ors. v. Vinay Kumar (supra) is reproduced below:
"1. In this group of matters, Civil Appeal No.6359 of 2016 challenging the judgment and order dated 30.07.2014 passed by the High Court1 in Writ Petition(C) No.2357 of 2014 is taken as the lead matter and the facts pertaining to said appeal are stated in brief for the purposes of dealing with the issues raised in this batch of cases.
2. The respondent-Vinay Kumar was appointed as Scientific Officer on 24th April, 1992 and was given requisite benefit under "Flexible Complementing Scheme ("the Scheme" for short) as Scientist 'C' with effect from 1st January, 1999. In terms of the Scheme, his case for being considered for the next higher grade as Scientist 'D' ought to have been taken up soon after completion of four years but it was done around December, 2003.
3. The respondent therefore represented that in terms of the Scheme, he be given the scale of Scientist 'D' with effect from 1st January, 2003. His 18 OA No.2549/2015 representation having been rejected, he approached the Central Administrative Tribunal ('the Tribunal', for short) by filing Original Application No.1476 of 2009. The Tribunal allowed his application relying upon the decision of the High Court in Writ Petition (C) No.14263 of 2004 [S.K. Murti vs. Union of India & Ors.].
4. The decision so rendered by the Tribunal was questioned by the appellant by filing Writ Petition (C) No.2357 of 2014 in the High Court, which relied upon the following observations made by the High Court in S.K. Murti:
"Suffice would it be to state that the memorandum requires Flexible Complementing Scheme in situ promotions to be W.P.(C) No. 2357/2014Page 2 effected each year and for which the circular mandates that the assessments should be made well in advance keeping in view the crucial dates being 1st January and 1st July with effect wherefrom the Flexible Complementing Scheme in situ promotions have to be effected.
6. The last sentence of para 20 is relied upon by the respondents to urge that the office memorandum clearly states that no promotion should be granted with retrospective effect. To this the answer by the petitioner is that the preceding two sentences makes it very clear that the Assessment Boards have to be constituted well in advance keeping in view the fact that 1st January and 1st April of each year are crucial dates to effect promotions.
7. Now, nobody can take advantage of his own wrong. Nothing has been shown to us by the respondents to justify not constituting the Assessment Board/Selection Committee in time.
8. That apart, instant case of promotion is not one where promotion has to be effected upon a vacancy arising. Subject to being found suitable the petitioner was entitled to be promoted in situ. The situation would be akin to granting a selection scale to a person and the date of eligibility would be the date wherefrom the benefit has to be accorded.
9. Under the circumstances, we hold in favour of the petitioner and direct that the benefit granted to the petitioner be reckoned with effect 19 OA No.2549/2015 from 1.1.1999 instead of 19.9.2000. Arrears would be paid within 12 weeks from today but without any interest."
The aforesaid Writ Petition (C) No.14263 of 2004 was thus dismissed by the High Court.
xxx xxx xxx
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 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. It must be noted that the decision of the Division Bench in S.K. Murti was challenged in this Court in SLP (C) No.6864 of 2011 which challenge was rejected with following observations:
"The respondent, who was working as Scientist Grade-D in the Botanical Survey of India became eligible for promotion under FCS with effect from 1.1.1999. However, on account of delayed convening of the Departmental Review Committee/Selection Committee, his promotion was delayed and by an order dated 20.10.2000, he was promoted with effect from 19.9.2000.
The respondent and 10 other Scientists of Botanical Survey of India filed Original Application No.826/2003 for directing the petitions to promote them with effect from the date of eligibility i.e. 1.1.1999. The Tribunal dismissed the original application and held that in view of the clarification given in O.M. dated 10.11.1998, the applicants were not entitled to promotion with retrospective effect. The review petition filed by the respondent was dismissed by the Tribunal vide order dated 14.01.2004. However, Writ Petition (C) No.14263/2004 filed by the respondent was allowed by the Division Bench of the High Court and the petitioners were directed to give him all the benefits on the basis of deemed promotion with effect from 1.1.1999.20 OA No.2549/2015
In our view, reasons assigned by the High Court for directing the petitioners to promote the respondent with effect from the date of acquiring the eligibility are legally correct and the impugned order does not suffer from any legal error warranting interference under Article 136 of the Constitution.
It is not in dispute that vacancies existed when the Departmental Review Committee considered the case of the respondent and other similarly situated persons for promotion. It is also not in dispute that in terms of paragraph 51.25 of the Vth Pay Commission Recommendations, the Departmental Review Committee/Assessment Board was required to meet every six months, i.e. in January and July and the promotions were to be made effective from the date of eligibility.
Therefore, it is not possible to find any flaw in the direction given by the High Court. The special leave petition is accordingly dismissed."
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.
9. The fact situations in the accompanying matters are more or less identical.
10. Two subsequent developments must now be adverted to: -
(A) On 19.09.2016, an Office Memorandum was issued with the approval of the Hon'ble Minister for Electronics and Information Technology. The policy document appended to this Office Memorandum set out the essential features as under:
"The Electronics Commission was constituted by way of a cabinet resolution in the year 1971 and the department served as its executive arm. Initially, appointment to Group 'A' S&T posts were made on contract 21 OA No.2549/2015 basis for 5/6 years and a few appointments were made on deputation basis also.
The Electronics Commission and the Prime Minister approved a Personnel Policy and Practice for Group 'A' S&T officers. This policy was given effect to w.e.f. 1.1.1982. The same policy, mutatis mutandis, was extended to below Group 'A' level S&T officials.
2. The salient feature of this policy was that it enabled every scientist to progress at the rate determined by their merit rather than the constraints of availability of posts. This policy was modeled on the basis of practice prevalent in the Department of Space and Department of Atomic Energy. On the recommendation of the Vth CPC, the Government of India in the DOPT notified and FCS for Group 'A' S&T officers for seven departments, including this department. On the recommendation of the VIth CPC, a modified FCS was notified by DoPT. The modified FCS has been made applicable only to those possessing a minimum qualification of a degree in engineering or a master's degree in natural science. As a result, a large number of S&T Officers who were recruited by the department and its institutions with qualifications other than those prescribed in the Modified FCS have been left outside the purview of this scheme. In view of this, a necessity has arisen in the department to draft its own policy which will take into consideration the special circumstances prevailing not only in the Department but also in its subordinate and attached offices as also in the autonomous organizations under the department.
3. The policy shall cover all the existing Group A S&T Officers who are holding a Group A S&T post.
xxx xxx xxx All those S&T officials who have rendered the minimum residency period as indicated above, shall be eligible for consideration for promotion to the next higher grade. The crucial date for consideration shall be as on the 1st of January and 1st of July every year. The process for assessment should begin by October and April every year and end by mid-December and mid- June so that all promotions are given effect to 22 OA No.2549/2015 as on 1st January and 1st July respectively every year. If, for some reasons, there are administrative delays in concluding the assessment process, the promotions shall, however, be given effect from as on 1st January/ 1st July of the eligible year.
..... ..... .....
9. The policy is to be made effective retrospectively w.e.f. 01.01.2011. Reviews already conducted since 2011 under the FCS/MFCS policies of DOPT would be treated as having been done under the new policy and past review cases will not be re-opened."
It was thus clearly laid down that the assessment must be undertaken as on 1st January and 1st July every year and if for some reason, there was any administrative delay, the promotions must be given effect from as on 1st January/1st July of the eligible year.
(B) Thereafter, another Office Memorandum was issued on 12.02.2019 which was to the following effect:
"Ministry of Electronics & Information and Technology (MeitY) has examined the issues regarding granting of in-situ promotions of Group 'A' S&T officers of MeitY and its organizations from the date of their eligibilities under the extant policy dated 19.09.2016 vis-a-vis DoPT's OM No. CS- 14017/6/2017-Estt. (RR) dated 03.01.2018 regarding ante-dating of promotions of scientists on the directions of CAT/High Courts in consultation with DoPT. The matter has been deliberated at length and based on the comments received from DoPT and also keeping in view the fact that MeitY's Policy was introduced in the year 2016 but made effective from 01.01.2011, delegating the powers to the Competent Authority to decide the date of promotions, this Ministry has taken the following decisions for implementations of promotions under MeitY's Group 'A' S&T policy:-
i. With regard to promotion of Group 'A' S&T officers of MeitY, its Attached Offices and Statutory Bodies, for which the Appointing Authority is Hon'ble MEIT, promotions may be granted in respect of all the pending cases of batches prior to 01.07.2019/01.01.2020 (as the case may be), from the date of eligibility, in terms of ACC's direction mentioned in Para 1(a) of MeitY's OM dated 19.09.2016, so as to maintain uniformity.23 OA No.2549/2015
ii. Provisions as per Para (I) with regard to promotions with effect from the date of eligibility will be made applicable suo-moto on the proposals already got approved/granted promotion from the date of approval of Competent Authority in MeitY, its Attached Offices and Statutory Bodies.
iii. With regard to the upcoming batches eligible as on 01.07.2019/01.01.2020 (as the case may be) and thereafter, all the organizations would be require to mandatorily complete the promotion exercise well in advance as laid down in the para 4 MeitY's personnel policy so as to ensure that the promotions are effected from the date of eligibility.
iv. In case of delay in completion of the procedure for conducting the review promotion of future batches for any reason, the promotions shall be effected from the date of approval by the Competent Authority only.
2. All the organizations under MeitY are advised to ensure that the backlog review promotions are completed within the prescribed time and decisions of this Ministry are scrupulously followed while conducting the review promotion exercises of Group 'A' S&T officers under the MeitY's Policy dated 19.09.2016. In order to avoid delays in promotion in future, all the organizations under MeitY are also advised to complete the review promotions process well in advance of the due date.
3. This issue with the approval of Hon'ble MEIT." According to this office memorandum, the Policy dated 19.09.2016 was continued without any qualification. The only occasion where the promotions would be effected from the date of approval by the Competent Authority was dealt with in sub-clause-iv that is to say where review promotions were in issue.
11. Ms. Madhavi Divan, learned Additional Solicitor General for the appellant submitted that the decisions of the High Court were incorrect and the entitlement of the concerned candidates would be only after the date of assessment by the Assessment Board/Committee.
12. Mr. R. Venkataramani, learned Senior Advocate appearing for some of the respondents submitted that in terms of Policy Documents dated 19.9.2016 24 OA No.2549/2015 and 12.02.2019, all the benefits were required to be and as a matter of fact had been made over or extended to the concerned respondents.
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.
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."
13. The reliance on the decision of this Tribunal in RA No.157/2017 in OA No.2894/2012 in Union of India & Anr. v. Vinod Kumar Jain & Ors. (supra) by the respondents to contend that the decision of the Hon'ble Supreme Court is a judgment in personam and hence cannot be extended to all similarly placed persons, is of no help in view of the above decision of the Hon'ble Supreme Court where the Hon'ble Supreme Court has held the same as a judgment in rem. We are of the considered view that a decision of the Supreme Court is binding on all Courts/Tribunals. By Article 141 of the Constitution of India it is laid down that the law declared by the Supreme Court 25 OA No.2549/2015 shall be binding on all courts within the territory of India.
14. In view of the dicta of the Hon'ble Supreme Court in Vinay Kumar (supra), and also for parity of reasons, we allow this O.A. and direct the respondents to ante date the award of promotion to the next grade to the applicant under the FCS from the date of eligibility keeping in view the decisions of this Tribunal in S.K. Murti (supra) as upheld by the Hon'ble Supreme Court. The applicant shall be entitled to all consequential benefits, including re- fixation of pay, pension and arrears thereof, in accordance with the relevant rules and law. These directions shall be complied with by the respondents within 12 weeks from the date of receipt of a copy of this order.
15. There shall be no order as to costs.
(Dr. Anand S. Khati) (R.N. Singh)
Member (A) Member (J)
'San.'