Central Administrative Tribunal - Hyderabad
D Veeranjaneyulu vs M/O Water Resources on 17 June, 2021
DA No.424/2015 £& CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH OAA2 004242015 HYDERABAD, this the 17" day of June, 202) Hon'ble Mr. Ashish Kalia, Judi. Member Hon'ble Mr. B.V. Sudhakar, Admn. Member @&D.Veeranjaneylu S/o D.Venkatramaiah, Aged 65 years, Occupation » Asst. Hydro-Meteoralogist (Retd}, R/o Plot No.304, Sai Angam Apariments, Street No.1, Patrikanagar, Behind Ratnadeep Super Market, Madhapur, Hyderabad 500081. Applicant (By Advocate > Mrs. K. Udaya Sri} Vs. L The Seeretary, Ministry of Water Resources, Government of India, Shram Shakthi Bhavan, New Delhi. ba The Chairman, Central Ground Water Board, Ministry of Water Resources, Government of India, Bhujal Bhavan, NH-4, Faridabad-121001, Haryana State. 3 .The Special Board of Assessment, The Central Ground Waiter Board, Head Office, Jam Nagar House, New Delhi- LO OLE. 4. The Regional Director, The Central Ground Water Board, Southern Region, Near GSI, Bandlaguda, Hyderabad ~ 500 O68, . Respondents (By Advocate : Mrs. K. Rajitha, Sr. CGSC) ene Page ] of? GA No. 42472015 ORAL ORDER
(As per Hon'ble Mr. B.Y. Sudhakar, Administrative Member) : 3% \ " _ Mhreugh Video Conferencing:
2. The OA is filed challenging the decision of the respondents in not promoting the applicant an in-situ basis under Flexible Complementing Scheme (for short "FCS"), Brief facts are that the applicant joined the respondents organization as Sr. Technical Assistant (Hydro-Meteorologist) in 1976, promoted as Assistant (Group-B) in 1998 and retired from service in July 2008. Under FCS, he was eligible to be granted in-situ promotion as Scientist B (Group-
A) after rendering 3 years of service as Assistant. The superior judicial fora have dealt with the issue and gave favorable orders to similarly situated employees and therefore, applicant earlier filed QA 751/2014 seeking similar relief. Tribunal directed to dispose of the pending representation of the applicant keeping in view the orders of the superior judicial fora, but the respondents rejected it and hence, the OA.
4, The contentions of the applicant are that he is eligible te be granted in-situ promotion under FCS scheme iniroduced on 28.35.1986, for pay scale Rs.650-1200 and above. When the FCS scheme was not extended to Asst. Chemists & Asst Hydro-geologists, OA 1032 of 1996 was filed, which was allowed and on challenge made by the Union of India in the Hon'ble High Court in WP No.22349/1999, it was directed by the Hon'ble High Court vide order dt. 10.9.2008 to apply the OM dated 28.5.1986 to the cadres in question. Later, when SLP was filed vide SLP (Civil) No.../2009 (CC 7347/2009) challenging the decision, it was dismissed on 31.08.2009, g Page 2 of 9 OA No.AZ4/2045 ity Lio Vinay Vidhyardhar & Ors when OA 370/2010 was filed, it was dismissed by this Tribunal and on being challenged by the said applicants in WP No.24452 of 2010, on 30.17.2010 the Hon"ble High Court has granted the benefit referring to the orders in WP No.22349/1999 and the dismissal of SLP filed against the said ay Writ Petition. Even the Review WPMP No.28475/2012 in WP 24452 of 2010 was dismissed by the Hon'ble High Court on $.12.2012 while making a clear observation that there is no cut-off date for applying the FCS scheme to those eligible, Further, the SLP(C) No..../2013 (CC 5329/2013) filed by Union of India contesting the Hon'ble High Court orders in WP No, 24452/2010 & Review WPMP No. 28475/2012 order was dismissed on 1.7.2013. Applicant, being similarly situated as Sri V.Vinay Vidyadhar, fled OA 7751/2014 wherein it was directed on 10.7.2014, to dispose of the pending representation keeping in view the orders of the Hor'ble High Court in WP No.24452/2010. Respondents rejecting the representation vide order dated 15.9.2014, stating that applicant was promoted as Assistant Hydro-Metrologist on 23.11.1998 after the cut-off date of 90.11.1998, and hence ineligible for the promotion, is illegal and arbitrary in the face of the orders of the superior judicial fora cited. Applicant did file CP {72/2014 in OA 7S1/2015 and the CP was closed in view of the order of rejection dated 15.9.2014. Therefore, the applicant is before this Tribunal in the present OA challenging the rejection order dt. 15.09.2014, a Page 3 of 8 GA No 424/2015
5. Respondents in their reply statement, confirmed the orders of the Hon'ble High Court and the Hon'ble Supreme Court as stated by the applicant. However, they pointed out that DOPT in the context of the s* CPC recommendations fas modified the FCS scheme by making it applicable to Group 'A' cadre vide its memo dated 9.11.1998. Therefore, )Sisince the applicant was promoted as Group B (Scientific) cadre on 23.11.1998, he is ineligible for the in-situ promotion under FCS scheme. Besides, it was also pointed that the SLP (CC) 5329/2013 filed challenging ithe orders in WP No.24452/2010 was dismissed for delay and not on merits. Hence the Ld. Additional Solicitor General while advising implementing the decision in WP No.24452 in respect of the respective petitioner has advised to challenge any further applications/ petitions filed before the judicial fora in future.
&. Heard both the counsel and perused the pleadings on record.
q OW The dispute is about applying the FCS to the applicant for granting in-situ promotion as Scientist B in the Group A cadre. The matter was adjudicated by the Hon"ble High Court of Andhra Pradesh in WP No. 22349/1999 filed by the respondents challenging the decision of this Tribunal in OA 1032/1996 favoring Sri V. Sambasiva Rao & ars. The operative portion of the judgment of the Tribunal and the Hor'bie High Court are extracted here under:
OA No, 1632/1996:
"17. In view of what has been stated and discussed above, if is held that the applicants (4yst. Chemist' -- Assistant "spe?
oyna a eee te fs a QA No 424 /2015 ia at :
| \ wg Hvdrogeclogisis} in this tine been incorrectly and arbitrarily excluded from Tie" operation of Flexible Complementing Scheme as extended ta the Respondent Organization by the Department of Science & Technology in November 1983, and extended further to the Group "B° Officers of their grade (Rs.650-1206 pre-revised)' Rs. 2000-3500 Revised) iy the same Department in May, 1986. It is also held that the posts af Assistant Chemist and Asst. Hydrogeologist are required fo be incorporated as No.4 under the column "Name of the Past"
in the Table appearing between Rule 3 and 6 af Government of india Notification containing the Central Ground Water Board Recruitment Rules, 1998. Suitable additions' mecdifications are required to be made in the said Rules, wherever appropriate and necessary, with a view fa extending the Flexible Complementing to these Applicants.
iS. it is directed therefore that a review be undertaken of the 1903 Rules to secure this objective. if necessary, the position of Flexible Complementing ta Group "B" afficers in the scale af Rs. 650-1200 Rs 2000-3500 in the eomparable scientific organizations and establishments of other Ministries may be ascertained. The review shall be undertaken and completed within six (6) months from the date of receipt of a copy of this order.
19. it is further directed that, consequent to such review of the Rules, the claims of the Applicants for in situ promotion to Junior Chemist! Junior Hydrogeologists from the date of coming into effect af the Recruitment Rules of 19S? be considered on merits and in accordance with the prescribed procedures within Ave (2) months thereafter.
20, Thus the OA is disposed of Ne costs."
WP Na, 223 49/1999:
"Thus, the Group B posts were excluded in view of the delay in review of FCS and not hecause they are nat eligible if appears the decisian to implement FCS for Group B paxts held &y the respondents has not heen faken so far, pursuant to the said cammnumication.
if. Government of ineia, Ministry of Personnel, Public Grievances and Pensions, vide its Office Memorandum No. 24 1/97-IPC dated 09.21.1998 had issued further instructions and the relevant partion, reads as under:
"ht is requested that all the Ministries / Depariments, where the Flexible Complementing Scheme is in operation, may initiate action for review of the provisions of the Flexible Complementing Scheme and amend the provisions of the relevant recruitment rules sa that the scheme is brought i1 conformity Page 5 of § OA No. A24/2075 with the decisions / guidelines being conveyed vide this Office Memorandum, Results of the review may also be conveyed to the Department af Science and Technology, the nodal department for aperation of the Flexible Complementing Scheme. Action jor extension of the Flexible Complementing Seheme to other scientific organizations, where the same is not in operation at present, may be taken in accordance with the decision contained in para -~ 3 of this Office Memorandum. The relevant provisions of Department af Science and Technology Office Memoranduni No.4-42014/2/86-Admiri (A) dated 02-05-1986 stand amended te the extent the pravisions of this Office Memorandum are at variance with the provisions of the said Office Memorandian."
18. dn the circumstances, the Tribunal ought not to have directed the petitioners to revise 1993 Rules so as ta include the benefit af FCS for the Group B posts. However, having regard to the Presidential Order, which has statutory force, pursuant ta which the Department of Science and Technology issued OA dated 02,035. 1986 and the consequent OM dated 09.11.2998, we are of the cansidered view that the petitioner is under obligatian to implement OM dated 02.05. 1986, as modified by OM 09.11.1998 and take further action ta implement the FCS in respect of respondents ~ applicants.
16. Subject to the aforesaid modification, the writ petition Is dixniissed, ~ The SLP (CC) No.7347 of 2009 filed challenging the order of the Har' ble High Court was alse dismissed on 31.8.2009.
ll. Later Sri V- Vinay Vidhaydhar & others filed WP 24452/2010 when the OA 376/2010 filed by them was dismissed by this Tribunal. The 'said WP was disposed by the Hon'ble High Court in favour of the petitioners as under:
"The learned counsel on either side fairly conceded that the controversy involved in this Writ Petition is squarely covered by an order of this Court dated 10.09.2008 rendered in Writ Petition No. 22349 of 1999 which was fled by the State agerieved by the order dated 19.04.1999 passed in OA No. HI32 of 1996 by the Tribunal. In the said judgment, it is held as follows:
a f Page 6 of 9 going 5 on oe ett * Ss : x ;
ip Phesgee >, oo O4 No.42a/2038 "Yn the clrcumsi REE wihe hibuncal "Ought not fo heave directed the petitioner tx Yevise 1995 Rules so as to include the benefit af FCS for the Group B posts, Hawever, faving regard to the Presidential Order, which has statutory force, pursuant to which the Department of Science and Technology issued OAM dated 02.03.1286 and the consequent OM dated 04.72.7998, we are af the considered view that the petitioner is under obligation to implement OM dated 02.03, 1986, as madified by OM 09.11.1998 and take further action fo implement the FCS in respect of respondents -- applicants.
Subject to the aforesaid modification, the writ petition is dismissed."
if is stated that the Apex Court by order dated 31.08.2000 dismissed the Special Leave ta Appeal (Civil) in Co Na. 7347 af 2009 filed by the Union of India affirming the arder dated 10.09.2008 in Writ Petition No. 22349 of 1999, Therejore, this Writ Petition is disposed of in terms of and in @ecordance with the ard. jer of this Court dated 1, 09,2008 rendered in Writ Petition No. 22349 af 1999. No casts.
lil. Respondents cantention is that the nodal Ministry namely DOPT has modified the FCS scheme in the context of $" CPC by making it clear that the FCS is applicable only to the Group "A" cadre vide its OM dated 9.11,1998 and therefore, the applicant, who was promoted to Group B cadre as Assistant Hydro-Metrologist on 23.11.1998, would be ineligible for promotion under FCS. In other words, respondents are latching on to the aspect that all those who are eligible to be prornoted as Scientist B would be considered for promotion under FCS prior to 9.11.98 and nat later. However, the Hen*ble High Court has adjudicated this issue and made it explicit that the cut-off date docs not apply te the FCS scheme while dismissing Review WPMP No. 28475 of 2012 filed by the respondents on $.12.2012 in WP No.24452/2010, The order of the Hon"ble High Court in Review WPMP 284795 of 2012 is hereunder extracted:
OA No.424/2015"Tearned counsel far the review petitioners submitted that earlier Writ Petition No. 22349 of 1998 filed by (10) persons have joined the \ department priar te 9.11,1998 and therefore the said OMs are applicable to Shem only, whereas respondents 2 and 3 herein heave joined the department . Jafier 911.1998 and therefore, they are not covered by FCS. He further # contended that this Court disposed of WP Na. 24452 ef 2010 weithiout "considering the facts and merits of the case and since the respondents 2 and 3 have joined after 9.11,1998, they are not eligible to be cansidered for a iN FCS as per the CMs.
We have perused the OM dated 2.5. 1986 as amended by OM dated 19.11.1998, There is no cut off date for implementing the FCS, but however, "as per the said OM, officers are entitled for the seheme subject te fulfillment of the conditions stipulated therein. Therefore, we do not see any error on the face of the record or any iHegality in the impugned order passed by this court. The review petition is without any merit and is liable to be dismissed.
Accordingly, the review petition is dismissed."
Further, the SLP CC No.$329 of 2013 challenging the order of the Han"ble High Court met the same fate on 1.72013 on grounds of delay. The Ld. Additional Solicitor General of India opined on 23.07.2013 that since the SLP was not dismissed on merit, the issue need to be agitated, when any fresh cases are filed in future, as under:
"The SEP has not been dismissed on merits. Therefore, no ground for review exists and the review cannot be filed The order of the Court may be complied with to avoid contempt. fn some other case which may arise in future, the matter cai be properly contested at all levels beginning from Central Administrative Tribunal, High Court andé or Hon'ble Supreme Court on merits."
IV. The stand of the respondents is that the order of the Hon'ble High Court in WP No.24452/2010 bas not merged with the orders of the Hon'ble Supreme Court since the SLP under reference was not dismissed on merits and that the issue has not attained finality with no finding delivered by the Hon'ble Apex Court on the question of law. However, as ov Page 8 of 9 DA Na 424/2015 ~ Court in WP No.24452/2010 halds oO aa® Y ge™ Xs : N SS Nae) on date, the order of the Hon'ble High the ground in regard to the dispute on hand, as per the principles laid down by the Hon'ble Supreme Court in Kuahayammed & Ors vs State of Kerala & Anr an £9 Judy, 20080, As long as the decision of the Hon'ble High Court . is not interfered with by the Hen"ble Apex Court, the respondents are ginal ag ee <055 ee slbound to implement the orders of the Hon'ble High Court. Therefore, the <<" contention of the respondents that the applicant is ineligible for the reef sought, by citing the cut off date of 9.11.1998 will not hold good and therefore, it is incumbent upon the respondents to examine grant of relief as per the orders of the superior judicial fora referred to above.
V. Hence, we direct the respondents to grant relief to the applicant as sought, in the light of the orders of the Hon'ble High Court of Andhra Pradesh in WP No.24452/2010 dated 30.11.2010 and keeping in view the fact that Review WPMP No.28475 of 2012 in WP No. 24452/2010 and SLP CC No.$329 of 2013 were dismissed on 53.12.2012 and 1.7.2013 respectively. Tome granted to implement the decision is 3 months from the date of receipt of this order.
With the above direction, the OA is disposed of with no orders as to p CUStS.
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