Central Administrative Tribunal - Delhi
Surya Bali Jaiswar vs Union Of India Through on 23 February, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 781/2010 MA 577/2010 New Delhi this the 23rd day of February, 2011 Honble Mr. Justice V.K.Bali, Chairman Honble Mr. L.K.Joshi, Vice Chairman (A) 1. Surya Bali Jaiswar S/o Late Bechan Ram, Deputy Director General of Meteorology, India Meteorological Department, Lodhi Road, New Delhi-03 2. L.R.Meena, Deputy Director General of Meteorology (ISSD), India Meteorological Department, Lodhi Road, New Delhi-03. Applicants (By Advocate Shri Amit Anand) VERSUS 1. Union of India through The Secretary Ministry of Earth Sciences ( M.O.E.S), CGO Complex, Lodhi Road, New Delhi. 2. Director General of Meteorology, India Meteorological Department, Mausam Bhawan, Lodhi Road, New Delhi-03 3. Dr. Surinder Kaur, Deputy Director General of Meteorology, Hydrology Section, India Meteorological Department, Lodhi Road, New Delhi-03 Respondents (By Advocate Shri R.V.Sinha ) O R D E R Mr. L.K.Joshi, Vice Chairman (A):
The Applicants have challenged the communication dated 26.02.2010 (Annex A-1) by which 18 Scientists E have been called for interview for promotion to the post of Scientist F under the Flexible Complementing Scheme (FCS) by the second Respondent, Director General of Meteorology, on the ground that in view of the extant Recruitment Rules for promotion to the post of Additional Director General, they should be considered for promotion on regular basis instead of promotion under the FCS on in situ basis. The post of Additional Director General (meteorology) is in the higher Pay Band (Rs. 10000/-) than the post of Scientist F, which is in the Pay Band of Rs. 8900/- only. The following relief has been sought:
A. Quash the office orders annexed at Annexure A-1 being contrary to the recruitment and other rules on the subject.
B. Direct the respondents to grant (sic) conduct a DPC in terms of the recruitment rules (being statutory in nature) for promotion to the post of Additional Director General of Meteorology.
2. One of the Applicants in this OA, namely, Shri LR Meena had approached this Tribunal earlier in OA number 2846/2009 with the grievance that he had been considered by the Departmental Promotion Committee (DPC) for the post of Additional Director General (Meteorology), which met in February 2009, but its recommendations were not given effect to. The Tribunal in its judgement dated 12.10.2009 directed the Secretary, Ministry of Earth Sciences, first Respondent herein and also in the aforesaid OA, to deal with the representation of the Applicant and pass a speaking order, with liberty to the Applicant to challenge the order passed by the Respondent. The second Applicant, Shri LR Meena, approached this Tribunal again, in the second round of litigation, in OA number 718/2010 against the decision in his representation by the first Respondent.
3. The issue in OA number 718/2010 was substantially the same as in the instant OA. The observations and the directions of this Tribunal in its judgement dated 14.12.2010 in OA number 718/2010 are reproduced below:
2. Briefly stated the facts of the case are that the Applicant is presently working as Deputy Director General of Meteorology in the India Meteorological Department (IMD). The Applicant entered the Department at the Group-A level. It is stated by the Applicant and not disputed by the Respondents that the Flexible Complementing Scheme (FCS) is implemented in the IMD for promotion from Meteorologist Grade II (equivalent to the scale of Scientist 'B') to Meteorologist Grade I (equivalent to the scale of Scientist 'C') and further to Director (equivalent to the scale of Scientist 'D'). Thereafter, the promotions are vacancy based in the next cadre.
3. It is also not disputed that the Respondents had convened a meeting of the Departmental Promotion Committee (DPC) for promotion from the post of Deputy Director-General Meteorology (DDGM) to that of Additional Director General Meteorology (ADGM) in February 2009. Two posts were vacant, namely, ADGM (Services) and ADGM (Sat. Com.) from 13.05.2008 and 01.01.2009 respectively. Further, two more posts fell vacant on 01.10.2009 and 01.02.2010 in the same grade as a result of retirement of two officers in those posts. In spite of these vacancies the Respondents have not acted on the recommendations of the DPC. The Applicant is at serial number 5 in the seniority list of DDGM as on 01.08.2008, which is placed at Annex A-2.
4. The Respondents decided to hold a meeting of the assessment board by their letter dated 16.09.2009 (Annex A-5) for considering the cases of eligible scientists in the cadre of Scientist D (Director) and Scientist E (DDG M) to the next grade. This caused apprehension in the mind of the Applicant that the Respondents did not have any intention of acting on the recommendations of the DPC. He then approached this Tribunal in OA number 2846 of 2009, in which the directions as quoted above were given to the Respondents. The impugned order has been passed in response thereto.
5. The learned counsel for the Applicant would contend that the Director General, Additional Director General and Deputy Director-General of Meteorology (Group 'A' posts) Recruitment Rules, 1994 (Annex A-3) are still in force and promotions have to be regulated as per these rules only. It was pointed out that even in the impugned order dated 29.01.2010, the Respondents had admitted that the promotions are to be considered as per the extant recruitment rules till they are amended as per the established procedure. He would contend that it was most objectionable for the Respondents still to contend that the recommendations of the DPC were under consideration, after more than one year had elapsed since its meeting in February 2009. It was contended that the Respondents were deliberately flouting the prescribed guidelines in order to frustrate the recommendations of the DPC. Posts have been lying vacant for more than two years and yet these have not been filled up as per the prescribed procedure under the rules. The attempt of the Respondents to hold the meeting of the assessment board for promotion from Scientist E and scientist D is against the existing Recruitment Rules. Reliance has been placed on Nirmal Chandra Bhattacharjee and others V. Union of India and others, 1991 Supp (2) SCC 363 and Management of M/S MS Nally Bharat Engineering Co. Ltd. V. State of Bihar and others, (1990) 2 SCC 48.
6. The learned counsel for the first and the second Respondents, namely, Ministry of Earth Sciences and Director General of Meteorology has pressed only two arguments before us that one, the action for the amendment of the Recruitment Rules is already under way and, therefore, the Respondents are fully justified in withholding the results of the DPC and two, the Applicant had already been promoted to the Grade of Scientist E and had already assumed the charge of that post. The Union Public Service Commission, the fourth Respondent has stated in its counter affidavit that a DPC met on 25.02.2009 to consider the eligible officers for promotion to the grade of ADGM in the IMD for the vacancy year 2009-10 for three vacancies. The Applicant was considered by the DPC and was assessed to be 'Fit' for promotion to the grade of ADGM in place of one Shri D. Chakrabarti, due to retire on 31.01.2010. It is further stated that the recommendations of the DPC have been sent to the first Respondent.
. . .
8. It is clear from the above facts of the case that the Respondents have acted most unjustly against the legitimate interests of the Applicant by withholding the result of the DPC for now nearly two years to thwart his promotion on the ground that the Recruitment Rules are likely to be amended. The Respondents have acted contrary to the Recruitment Rules, which cannot be justified only on the ground that the extant Recruitment Rules are being amended. The action of the Respondents is not maintainable as it is in the teeth of the Recruitment Rules, which continue to hold the field till amended.
9. In the light of the above discussion, the OA succeeds. The Respondents are directed to act on the recommendations of the DPC of 25.02.2009. The Respondents shall not take the plea that the panel has become inoperable due to the flux of time because in the first place the panel has illegally been suppressed and second, it has never been revealed. Since the fourth Respondent, UPSC, has already stated that the Applicant has been declared 'fit' for promotion, he shall be promoted to the grade of Additional Director General Meteorology, subject to other administrative requirements. This direction would be complied with within one month of the receipt of a certified copy of this order. No costs. (emphasis added) Meanwhile, before the final decision in the OA number 718 of 2010 in December 2010, the first Applicant, Shri Surya Bali Jaiswar and the second Applicant, Shri LR Meena, approached this Tribunal in OA number 781/2010 in March 2010 for the relief mentioned above. The issue has already been decided in OA number 718 of 2010 that as long as the Director General, Additional Director General and Deputy Director General of Meteorology (Group 'A' Posts) Recruitment Rules, 1994 (the Recruitment Rules) remain in existence, these have to be followed scrupulously by the Respondents for making promotion from the post of Deputy Director General to Additional Director General, Meteorology. The Respondents could not have put the Applicants in disadvantageous position by calling them for promotions from Scientist E to Scientist F under the FCS of in situ promotion because the Pay Band for Scientist F is less than the Pay Band for the post of Additional Director General of Meteorology.
4. Directions with regard to the promotion of the second Applicant, Shri LR Meena, to the grade of Additional Director General (Meteorology) have already been given in OA number 718/2010. The same directions have to be given in regard to the first Applicant, Shri Surya Bali Jaiswar, also. As per the Recruitment Rules there are five posts of Additional Director General, Meteorology. The Respondents are directed to consider the first Applicant for the post of Additional Director General, Meteorology, if any post is vacant, and if he is found to be 'Fit' for promotion to the aforesaid post, he would be so promoted. These directions would be complied with within two months from the date of receipt of a certified copy of this order. There will be no orders as to costs.
( L.K.Joshi ) ( V.K.Bali ) Vice Chairman (A) Chairman sk