Central Administrative Tribunal - Delhi
Anil Kumar Yenni vs National Informatics Centre on 15 January, 2025
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C-3/Item-41 OA-1391/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A./1391/2022
Reserved on: 19.12.2024
Pronounced on: 15.01.2025
Hon'ble Dr. Chhabilendra Roul, Member (A)
Hon'ble Mr. Ajay Pratap Singh, Member (J)
1. Anil Kumar Yenni
S/o Late Sri Y Mohan Reddy,
Aged 40 years,
R/o H. No. 9-207/4A,
Road No. 7, Near Suryodaya Supermarket,
Employees Colony Yapral,
Secunderabad, Telengana-500087
2. Bh. J.S. Phani Krishna,
S/o Shri S.B.V. Sarma,
Aged 42 years,
R/o 4-219, Behind A.E.W.,
Bypass Road, Tanuku,
Andhra Pradesh-543211
3. Mridul Deka,
S/o Prabhat Ch. Deka,
Aged 42 years
R/o House No. 6, Senduri Path,
Japorigog (Near Shankar Madhab Kala Kristi Kendra),
PO-Dispur, Guwahati, Assam-781005
4. Goman Bahadur Chhetry,
S/o Chitra Bahadur, Aged 42 years
R/o Naga River Lane, Near 2nd MR Gate
Imphal East, Manipur-795001
5. Sunil Kumar,
S/o Shri Asharfi Prasad Singh,
Aged 45 years,
R/o At Post Sahdulahpur, Hajipur,
Vaishali Bihar-844101
6. Prakash C. Kala,
S/o M.D. Kala,
Aged 41 years,
R/o 202/2 Aditya Suntech City Apartment,
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C-3/Item-41 OA-1391/2022
Sector 5, Vasundhara,
Ghaziabad, UP-201012
7. Rishi Kumar Rai,
S/o Shri B.L. Rai
Aged 46 years,
R/o MIG-166, Tatibandh Colony,
Raipur, Chhattisgarh-492099
8. Amit Agarwal
S/o Shri C. B. Agarwal,
Aged 41 years,
R/o Agarwal House 46/49
Sarkanda, Bilaspaur,
Chhattisgarh-495001.
9. Aradhana Thawait,
D/o Shri A. B. Thawait,
Aged 45 years,
R/o Street No. 1, Sector-3
Professor Colony, Raipur,
Chhattisgarh-492001
10. Sudhir Kumar,
S/o Govind Prasad,
Aged 45 years
R/o H. No. 164, Mayur Residency,
Faridnagar, Chandan Road,
Lucknow, U.P-226015
11. Vikrant Nawani
S/o Sh. V.D. Nawani
Aged 40 years
R/o-15/268, Lodhi Colony,
New Delhi-110003
12. Prite Joshi,
D/o Banshidhar Joshi
Aged 43 years
R/o H. No. 332 Village & PO
Shantipur No. 2, District Udham Singh Nagar,
Uttarakhand-263148
13. Alka Upadhyay,
D/o Ganga Prashad Sharma,
Aged 42 years
R/o Flat No. 316, Gaur Heights
Sector 4, Vaishali, Ghaziabad
UP-201010
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C-3/Item-41 OA-1391/2022
14. Nisha Gupta
D/o K.V. Nagpal, Aged 40 years
R/o E-94, Sector 72,
Noida, U.P.-201307
15. Kamlesh Pratap Singh
S/o Jang Bahadur Singh, Aged 42 years
R/o 833, AB Nagar, DSN College Road
Unnao, U.P-209801
16. Anil Kumar Negi
S/o Late Sh. Jagat Singh Negi
Aged 44 years
R/o H. No. 210, 2nd Floor, Old Minto Road Hostel,
Minto Road, New Delhi-110002
17. Viren Makodiya
S/o Somabhal H. Makodiya,
Aged 43 years
R/o Block No. F-402, Radhe 111 Society,
Kudasan, Gandhinagar, Gujarat-382421
18. Parveen Sharma
S/o Shri Kirpa Ram Sharma
Aged 42 years
R/o VPO Shakra, Tehsil Karsog
District Mandi,
Himachal Pradesh-175009
19. Ashwani Kumar S/o Ram Lal Sharma,
Aged 41 years,
R/o Village Ari, Tehsil Mendhar,
District Poonch
J&K-185211.
20. Allen Pramod Guduri,
S/o G.Prabhakar Rao, Aged 41 years,
R/o H. No. 53-1-58(2),
Cloughpet 4th Lane,
Ongole Prakasam District,
Andhra Pradesh-523001
21. T. Rajammal
D/o Shri S. Thulasi,
Aged 41 years,
R/o House No. 1/38, Nambi Rajan Street,
Thachanallur PO, Tirunelveli District,
Tamil Nadu-627358.
22. Jilju V,
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C-3/Item-41 OA-1391/2022
D/o K.K. Viswanathan;
Aged 42 years, Rio Kiliveedu, DCNRA D 55,
Near Boat House, Pothujanam Road, Medical College
PO, Trivandrum, Kerala-695011
23. Sreelatha S.,
D/o Late Shri Sundaresan Nair K
Aged 39 years,
R/o #34, Palakkaparambil (H), DMC Road
Edappally North PO, Cochin,
Kerala-682024
24. Delan Prajapati
S/o Shri C.L. Prajapati
Aged 43 years
R/o Near Mata Madiya Kakaganj
District Sagar,
Madhya Pradesh-470002
25. Yatish Kumar Sisodiya
S/o Shri Mangilal Sisodiya
Aged 39 years
R/o F-15, Tripti Vihar, Indore Road
District Ujjain, Madhya Pradesh - 458010
25. Ranjeeta Rohit
D/o Late Shri T.R. Rohit
Aged 42 years
R/o H. No. 97, Geet Mohini, Phase 6
Ayodhya Nagar, Bhopal
Madhya Pradesh-462041
27. Omprakash Arya
S/o Purushottam
Aged 45 years,
R/o Tukum, Waghoba Chowk Road,
Chandrapur, Maharashtra-442402
28. Laishram Sharat Singh
S/o L. Manisana Singh,
Aged 44 years,
R/o Sogolband Moirang Hanuba Leirak
Imphal Manipur-795001
29. James Vanlalfakawma
S/o C. Ramsanliana. Aged 38 years
R/o Tlungvel Vengthar, Aizawl District
Mizoram-796161
30. H.C. Rochungnunga
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C-3/Item-41 OA-1391/2022
S/o H.C. Lalrohluna
Aged 37 years,
R/o H. No.86/A,
Bungkawn, Near Bungkawn
Vengthar, Angawanwadi, Aizawl
Mizoram-796001
31. Biswarajan Bhukta
S/o Shri Umesh Chandra Bhukta.
Aged 42 years
R/o Near S.S. International School
Dongriguda, Umerkote, Nabrangpur,
Odisha-764059
32. Manish Kumar Sharma
S/o Sh. Ramesh Chandra Sharma
Aged 43 years, R/0 58
Nemi Nagar, Jhalrapatan, District Jhalawar
Rajasthan-326023
33. Paramjeet Singh,
S/o Jogindra Singh,
Aged 30 years
R/o G-15, Mahadev Enclave,
Sri Ganganagar, Rajasthan-335001
34. Chandresh Kumar
S/o Shri Mohan Lal
Aged 42 years,
R/o II/5, GAD Colony, Sam Road
Jaisalmer, Rajasthan-345001
35. Navin Kumar Mathur,
S/o Lt. Shri Vinod Kumar Mathur,
Aged 37 years,
R/o Flat No. 303, B-21, Prateek
Panchsheel Colony, Ajmer Road,
Jaipur, Rajasthan-302019
36. Ashutosh Kumar Sherpa
S/o Mithilesh Kumar
Aged 45 years,
R/o 78-A, Dev Ashish House
Jago Niwas, Lane Matwari
Hazaribagh, Jharkhand-625301
37. Shakeena Nallagatla,
D/o Late Sri N. Vijay Kumar
Aged 40 years,
R/o 12-13-435, Flat No. 401,
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C-3/Item-41 OA-1391/2022
Shyam Arcade
Street No. 19, Opp. Bank of Baroda,
Tarnaka, Secundrabad, Telengana-500017
38. N Sree Laxmi Devi,
D/o N. Nageshwara Rao
Aged 50 years,
R/o H.No. 1232, BHEL MIC RC Puram,
Hyderabad-502032
39. Ravi Bandi
S/o Satyanarayana Bandi
Aged 41 years
R/o Flat No-101A, Drumatura's Jasmine
TRT-220, TRT Colony, Prashant Nagar,
Vidya Nagar Ext., Hyderabad-500044
40. Rajnish Chandra Srivastava
S/o 5/b St. Dhyan Chandra Lal,
Aged 41 years,
R/o D-47, VDA Colony, Badalapur,
Chandmari, Varanasi UP-221007
41. Saurabh Mishra
S/o Shri Shanti Shekhar Mishra,
Aged 44 years
R/o H. No. 1/244, Vikrant Khand Gomti Nagar,
Lucknow, U.P.-226010
42. Joy Shukla,
S/o Shri Girja Shankar Shukla,
Aged 43 years
R/o H. No. 725, Church Road, Civil Lines,
Sitapur, U.P.-261001
43. Krishnanand Yadav,
S/o Late Shri Lalsa Prasad Yadav
Aged 40 years
R/o Village Hariyapur,
Post Musahari, District Deoria,
U.P-274408
44. Avinash Sharma,
S/o Late Sh. B.L. Sharma
Aged 45 years, R/o D-47,
Ramapura, Varanasi,
UP-221001.
45. Brijesh Tewari,
S/o Late Shri S.K. Tiwari
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C-3/Item-41 OA-1391/2022
Aged 44 years,
R/o 93, MIG Dayanand Vihar, Kalyanpur
Kanpur, UP-208017
46. Manish Verma,
S/o Sh. Ramnagina
Aged 40 years
R/o E-63, Trans Yamuna Colony, Phase-2
Agra, UP-282006
47. Gaurav Kumar
S/o Sh. Narayan Ram
Aged 37 years,
R/o Shivalaya Ward Takana Khet
Pithoragarh, Uttarakhand-2162501 ...Applicants
(Through Shri Tabrez Malawat with Ms.Rupali Jain,
Advocates)
VERSUS
1. Union of India
Through its Secretary,
Ministry of Communication &
Information Technology, Electronics Niketan,
6, CGO Complex,
Lodhi Road, New Delhi-110003
2. Director General
National Informatics Centre
Department of Electronics & Information Technology,
Ministry of Electronics & Information Technology
A Block, Lodhi Road, CGO Complex,
New Delhi-110003 ...Respondents
(Through Mr. Hanu Bhaskar and Mr. Rajpal Singh with Mr.
Bilochan Prasad, Advocates)
ORDER
Hon'ble Dr. Chhabilendra Roul, Member (A) By way of present Original Application filed under Section 19 of Administrative Tribunals Act 1985, applicants 8 C-3/Item-41 OA-1391/2022 have sought the main relief (as extracted from OA) as under:-
"(i) To quash and set aside the Impugned Office Memorandum dated 16.02.2022 passed by the Respondent No. 2 in response to the Representations dated 23.11.2019 and 30.07.2021 submitted by the Applicants and pursuant to the directions passed in Order 12.11.2021 by this Hon'ble Tribunal in O.A. No. 2450 of 2021 (Anil Kumar Yenni & Ors.
Vs. Union of India & Anr.) which rob the chance of Applicants from getting promotion into Group A and consequential benefits in relation to the same as was given to batchmates and junior of the Applicants;
(ii) To quash and set aside the Circular No. 19(9)/2020 - Pers. dated 21.09.2020 issued by the Respondent No.2 to extent it excludes Applicants herein from the ambit of the Personnel Policy of Group 'A' S&T Officers of MeitY - Office Memorandum No. 2(11)/2016 - Pers. III dated 19.09.2016 and rob the chance of Applicants from getting promotion into Group A and consequential benefits in relation to the same as was given to batchmates and junior of the Applicants;
(iii) To grant parity to the Applicants w.e.f 01.10.2009 and consequential benefits to the Applicants as was given to the batchmates of the Applicants;
(iv) Direct the Respondents to initiate Promotional review of the Applicants on an immediate basis under Personnel Policy for Group 'A' S&T officers of Ministry of Electronics and Information Technology (MeitY) dated 19th September 2016, on parity with Applicants' batch mates recruited in year 2006 and joined with them in June or July or October 2006 (recruited under the same advertisement No. 15(2)/2005- Pers. for recruitment of Scientific/Technical Assistant-B') and are presently covered under the Personnel Policy for Group 'A' S&T officers of Ministry of Electronics and Information Technology (MeitY) dated 19th September 2016 and reviewed/promoted under the same;
(v) To direct Respondents to provide all the promotional benefits should be given to the Applicants from retrospective basis, i.e., 1st October 2010 and from the date from when the batchmates were given promotions, being the date from which Applicants' promotion was first due for the post of Scientific Officer/ Engineer-SB and along with consequential benefits, which include promotion to Scientist-B w.e.f. 01.10.2013 and to Scientist-C w.e.f to 01.01.2017 and to process and accept APAR/ AWR for the post of Scientist-D so promotion to the said grade can be undertaken on 01.01.2021 under Policy of 19.09.2016 as being undertaken for the batchmates of the Applicants;
(vi) Pass on all consequential benefits for the delay in administrative process and antedate promotion; and 9 C-3/Item-41 OA-1391/2022
(vii) Pass any other order or such order, as this Hon'ble Tribunal may deem fit in present facts and circumstances of the case."
2. The factual matrix of the case is that the applicant was initially appointed as Scientific Technical Assistant -B in the year 2006. The applicants completed three years of residency in 2009. As per the office memorandum dated 18.07.1983, which contained the Personnel Policy and Practices for Scientific and Technical Officers and Staff Below Group 'A' level issued by the respondents, after completion of three years of residency, the applicants were supposed to be considered for the next higher scale. The respondents vide order dated 08.09.2009 decided to hold the reviews for Scientific and Technical (S & T) Officers of below Group "A" level to next higher grade in terms of aforementioned FCS and the prevalent guidelines of DoP&T. 2.1 It is the claim of the applicants that though the S&T Officers were called for review promotion by the screening committee for promotion to the post of Scientific Officer Engineer (SOE-SB), some of the applicants were not even called upon for the said review promotion. Even the applicants were not considered for review promotion as per the modified FCS guidelines issued on 10.09.2010. 2.2 Subsequently, after a gap of four years, the respondents considered the case of the applicants for 10 C-3/Item-41 OA-1391/2022 promotion to the next higher scale under the FCS Scheme on 27.06.2013. Being aggrieved that he should have been given a promotion with effect from 01.10.2010 instead of 2013, the applicant submitted oral as well as written submissions to the respondents to consider his case for antedating his promotion to the rank of SOE-SB. However, the respondents did not consider his oral representations. Subsequently, the applicant submitted formal representation on 23.11.2019 followed by another representation dated 30.07.2021. The respondents did not consider the said representations of the applicant. Being aggrieved he approached this Tribunal by way of filing OA No. 2450/2021 and this Tribunal vide order dated 12.11.2021 passed following order:
"6. According to learned counsel, the applicants made representation dated 23.11.2019 and 30.07.2021 in this regard to the respondents for ventilating their grievance, but the same are yet to be decided by the respondents. He stated that he would be satisfied if a direction is given to the respondents to decide the aforesaid representations of the applicants in a time bound manner.
7. Keeping in view, the prayer of the learned counsel for the applicants, the respondents are directed to consider and dispose of the representations dated 23.11.2019 and 30.07.2021 of the applicants by a passing a reasoned and speaking order within a period of three months from the date of receipt of a copy of this order."
2.3 In pursuance of the said order the respondents considered the representation of the applicant and vide their office memorandum dated 16.02.2022 declined the claim of the applicant for antedating his promotion with effect from 11 C-3/Item-41 OA-1391/2022 01.10.2010, as prayed in this representation, to the rank of SOE-SB. Being aggrieved, he has filed the present OA seeking the aforementioned reliefs.
2.4 The learned counsel for the applicants states that as per the policy of 1983 issued vide office memorandum dated 18.07.1983, the applicants are entitled to promotion from 2010. He refers to para 5 of the same, which reads as under:
"5.1. The minimum length of service for the first notional review for promotion to all grades of and below the level of Scientist/Engineer Grade SC (Rs. 700-1300) will be three years, the standardized date. This yardstick may be changed later by Secretary, DOE, If found necessary, in the light of experience gained/changed circumstances."
2.5 According to the learned counsel for the applicants, the applicants had completed three years of residency in the month of October 2010 and hence they should have been given promotion to the next higher rank under the FCS Scheme in the month of October 2010.
2.6 The learned counsel for the applicants further states that though this Tribunal vide order dated 12.12.2021 had directed the respondents to consider the representation of the applicant by giving a reasoned and speaking order, the order dated 16.02.2022 is not a reasoned one explaining as to why the applicants could not be given promotion from an antedate.
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C-3/Item-41 OA-1391/2022 2.7 The learned counsel for the applicants further states
that the applicants have claimed for antedated promotion in view of the settled law of the land. In support of his averments, he refers to the judgment of the Apex Court in the case of UOI & Anr Vs. S.K. Murti, SLP (C) No.6864/2011 decided on 02.05.2011, wherein the Apex Court has considered a similar case of Scientist Grade-D in the Botanical Survey of India, who became eligible for promotion under FCS w.e.f. 01.01.1999, however on account of the delayed convening of the Departmental Review Committee/Selection Committee, the applicant therein was given delayed promotion. The matter was originally considered by this Tribunal and this Tribunal vide order dated 14.01.2004 rejected the claim of the applicant therein. Subsequently, the applicants filed a Writ Petition before the Hon'ble High Court and the Hon'ble High Court reversed the order of this Tribunal and held that the applicants therein were eligible to get a promotion from the date of their eligibility. The Apex court considered the case and decided the case in the following manner:
"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."13
C-3/Item-41 OA-1391/2022 2.8 The learned counsel for the applicants further refers to
the decision of the Apex Court in Union of India & Ors. Vs. Vinay Kumar, Civil Appeal No. 6359/2016, particularly referring to para 2, wherein in a similar Flexible Complementing Scheme, the administrative authorities did not consider the case of the scientists therein for promotion to the next higher rank within the prescribed time limit. He refers to paras 4, 6, 7, 13 & 14, which read as under:
"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. 2357/2014 Page 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 14 C-3/Item-41 OA-1391/2022 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 from 1.1.1999 instead of 19.9.2000. Arrears would be paid within 12 weeks from today but without any interest."
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.
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 15 C-3/Item-41 OA-1391/2022 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."
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."
2.9 Lastly, in support of the claim of the applicants that they are entitled to promotion from 01.10.2010, the learned counsel for the applicants refers to the decision of a coordinate Bench of this Tribunal in OA No. 3576/2015 with MA 3216/2015, pronounced on 07.12.2022, highlighting paras 7, 8, 9, 13, 14 & 15, which read as under:
"7. In order to adjudicate the controversy raised, we may reproduce the relevant part of the judgment of the Hon'ble High Court in Union of India & Anr. v. Dr. Anjum as follows:16
C-3/Item-41 OA-1391/2022 "10. It is observed that the Tribunal has relied on the decision of the co-ordinate Bench of this Court in Dr. S.K. Murti (supra), which has been approved by the Supreme Court and consequently, held that the respondents are entitled for grant of promotion under FCS from their due dates which would be 1st July or 1st January of the relevant year and they are also entitled to arrears along with all consequential benefits.
11. In Dr. S.K. Murti (supra), the respondents therein had relied on an Office Memorandum ('OM') dated 17.07.2002, which had specifically provided that promotions are made effective from a prospective date after the Competent Authority has approved the same and the said principle is also applicable in case of in situ promotion under FCS as well.
12. Reliance was placed by the Department in that case on an OM, which specifically provided that no promotion should be granted with retrospective effect. The co-ordinate Bench in S.K. Murti (supra) noticed that the Assessment Boards had to be constituted well in advance, keeping in view the fact that 1st January and 1st July of each year are crucial dates to effect promotions.
13. The view taken by the co-ordinate Bench in Dr. S.K. Murti (supra) was that nobody can take advantage of its own wrong and no justification was shown for not constituting the Assessment Boards/ Selection Committee in time. Further, the co-ordinate Bench has noticed that the said case of promotion was not the one where promotion has to be effected upon a vacancy arising and subject to being found suitable, the petitioner therein was entitled to be promoted in situ and 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 awarded.
14. The facts in the present case are identical to the said case inasmuch as, it is mandatory as per the Recruitment Rules to constitute an Assessment Board/ Committee on 1st July and 1st January respectively. The respondents herein are also not to be promoted upon a vacancy arising. Subject to being found suitable they are entitled to be promoted in situ, which is akin, as noticed in Dr. S.K. Murti (supra) to granting a selection scale. Consequently, the respondents would be entitled from the date they become eligible.17
C-3/Item-41 OA-1391/2022
15. As noticed hereinabove, the decision of the co-ordinate Bench in Dr. S.K. Murti (supra) was assailed before the Supreme Court and the Supreme Court by its order dated 02.05.2011 rejected the petition holding that the view taken by the co-ordinate Bench of this Court in directing the Department to promote the officer with effect from the date of acquiring the eligibility, is a legally correct view.
16. It may also be noticed that in this petition one of the grounds taken by the petitioner is that the judgment in Dr. S.K. Murti (supra) is under consideration by the Supreme Court in Civil Appeal No. 6359/2016 titled as "Union of India vs. Vinay Kumar".
17. It may be noticed that the Supreme Court has finally disposed of the said Civil Appeal No. 6359/2016 by judgment dated 25.08.2021. In Vinay Kumar (supra), the Department had also referred to an OM dated 19.06.2016, wherein also the crucial date for consideration was stipulated as 1st January and 1st July of every year.
18. Reference was made by the Department to an OM dated 12.02.2019, which stipulated that in case of delay in completion of the procedure for conducting the review promotion of future batches for any reason, the promotion shall be effected from the date of approval by the Competent Authority.
19. The Supreme Court in Vinay Kumar (supra) after considering the above referred OMs has held that the view taken by the High Court in S.K. Murti (supra), which was affirmed by the Supreme 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 had been affirmed in S.K. Murti (supra) and thus, the Supreme Court was of the view that there was no reason to take a different view in the matter.
20. As noticed hereinabove, the case of the respondents is identical to that of the petitioners to that Dr. S.K. Murti (supra) and Vinay Kumar (supra).
21. Reference drawn by learned counsel for the petitioners to Sub Rule 12, 14 and 15 of the Recruitment Rules is of no consequence for the reason that in similar circumstances, where the Department rules provided that the promotion would be prospective from the date 18 C-3/Item-41 OA-1391/2022 of approval by the Competent Authority, it has been held in S.K. Murti (supra) and in Vinay Kumar (supra) that the dates 1st January and 1st July for constituting the Assessment Board/ Committee are mandatory and the Department has to constitute the Boards so that no prejudice is caused to the concerned officers. Department cannot take benefit of the delay in constituting the Board on the prescribed dates as the officers who are eligible for consideration cannot be denied promotion solely on the ground that the Board was not constituted in time as mandated by the rules.
22. Further, as noticed hereinabove, the Recruitment Rules referred to by learned counsel for the petitioner itself stipulates that the assessment 'shall' be done twice a year and the cases maturing for promotion during January to June 'shall' be taken up for assessment in the month of July of that year and cases maturing for promotion during July to December of a year 'shall' be taken up for assessment in the month of January of the next year.
23. The fact that the expression 'shall' has been used shows that it is mandatory on the part of the Department to constitute the Boards for conducting the assessment within the stipulated period.
24. In the present case, there is no fault attributed to the respondents for delay in consideration of their respective cases. The only reason is that the Board was not constituted within time and that cannot be a ground to deny the promotion from the date the concerned officers became eligible as has been held in Dr. S.K. Murti (supra) and in Vinay Kumar (supra).
25. In view of the above, we find no merit in the petitions. The petitions along with pending applications are consequently dismissed.
26. Petitioners are directed to implement the impugned decision of the Tribunal dated 21.02.2017 (W.P.(C) 5317/2018) and 10.03.2017 (W.P.(C) 7171/2018) expeditiously preferably within a period of two months from today."
8. In view of the above, we will now consider the claim of the applicants in the background of the above decision. The respondents have submitted that the OM dated 17.07.2002 does not provide for antedating of in situ promotions. We find that this OM had already been considered by the 19 C-3/Item-41 OA-1391/2022 Tribunal in S.K. Murti (supra) and more particularly in para-4 of the order of the Tribunal. Once the said decision of the Tribunal has been upheld upto the level of Hon'ble Supreme Court, the applicants are entitled to get their promotions antedated under FCS with effect from the date of their eligibility and this OM cannot come in their way.
9. As regards the plea of the respondents that in spite of the decision of the Tribunal in S.K. Murti (supra) a coordinate Bench of this Tribunal has dismissed an identical claim in OA No.3910/2014, we are of the considered view that once the decision of this Tribunal in S.K. Murti (supra) has been upheld, it has become binding on us and we are called upon to follow the same beingbinding precedent under Article 141 of the Constitution of India. Moreover, the coordinate Bench of this Tribunal has not considered the latest decision of the Hon'ble Supreme Court in Union of India & Ors. v. Vinay Kumar (supra) while dismissing OA No.3910/2014. 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.
13. Similarly, in the matter of State of Uttar Pradesh and others v. Arvind Kumar 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 20 C-3/Item-41 OA-1391/2022 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 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 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."
14. 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."
15. In view of the above analysis, we allow this OA. and direct the respondents to grant antedated promotions to the applicants under the FCS from the date of their eligibility keeping in view the decisions of this Tribunal in S.K. Murti (supra) as upheld by the Hon'ble Supreme Court, decision of the Hon'ble Supreme Court in Union of India &Ors. v. Vinay Kumar (supra) and the decision of the Hon'ble High Court of Delhi in Dr. Anjum Rizvi (supra) by suitably modifying the date(s) of in situ promotions by antedating the same from the date(s) when the eligibility period was completed by the respect applicants, as mentioned in the Annexure A-l chart. The applicants shall be entitled to the consequential benefits in accordance with the relevant rules and law. The directions shall be complied 21 C-3/Item-41 OA-1391/2022 by the respondents within 12 weeks from the date of receipt of a copy of this order."
3. Per contra, the learned counsel for the respondents vehemently opposes for grant of any relief to the applicants contending that the impugned order dated 16.02.2022 is a detailed and a reasoned one giving cogent reasons for declining the request of the applicant for antedating their promotion w.e.f 2010. He states that as per the policy of 1983, the applicants were considered for the next promotion w.e.f. 1.10.2009. He refers to para 4.3. of the counter reply filed by them where reasons have been given for denying promotion to the present applicants. The first 21 applicants were found unfit of the post in question by the Screening Committee, the remaining applicants could not be considered for want of requisite residency period. He states that it is incorrect on the part of the applicants to state that they were never considered for promotion and there was unreasonable administrative delay in considering the case of the applicants for promotion.
3.1 Subsequently, when the applicants were supposed to be considered for promotion in the next year or after the completion of the residency period, the respondents considered scrapping the 1983 policy and scrapped the same on 28.03.2011 w.e.f. 01.10.2009. In view of this, none of these applicants could have been considered in the period 22 C-3/Item-41 OA-1391/2022 starting from 01.10.2009 to 28.03.2011. Subsequently, the policy for below Group "A" S & T Personnel to which the applicants belong was restored in June 2013. Accordingly, the applicants were given promotion to the next rank on 27.06.2013. In view of this, there is no delay on the part of the respondents to consider the case of the applicants for promotion to the next rank. Between the period 23.03.2011 to June 2013, there was no policy to give promotions to the below Group "A" S & T personnel.
3.2 He further states that the element of FCS Policy which the applicants are referring to time and again is not there in the 1983 policy for the below Group "A" category of scientists personnel. The element of FCS Policy was originally there in the 1981 FCS Policy for Group "A" Scientists. The present applicants were not initially recruited as Group "A" Scientists. Subsequently, in the year 2016, the respondents came out with a policy for FCS which is effective from 2011. Again this policy is not applicable to below Group "A" Scientific personnel in the department. The impugned order has considered the case of the applicant and at the appropriate time, the applicants were found unfit to be considered for the next promotion or for want of the requisite residency period they could not be promoted. As there was no policy for promotion to the next higher scale, the applicants could not be given promotion to the next higher 23 C-3/Item-41 OA-1391/2022 scale till 27.06.2013. However, after the revival of the Policy for below Group "A" category of Scientists personnel, the applicants were given promotion. The same has been mentioned in the impugned order. In para 4 (vi) of the impugned order, it is clearly mentioned that the applicants were promoted to the grade of Scientist-B on 26.10.2016 under the BGA Policy and accordingly eligible for consideration to the grade of Scientist-C as on 01.10.2020 under the BGA S&T Policy as stated in the circular No. 19 (9)/2020-Pers. Dated 21.09.2020. He states that in view of this, there is no irregularity committed by the respondents by not considering the demand of the applicant for giving antedated promotion w.e.f 01.10.2010.
3.3 The learned counsel for the respondents further states that on 01.10.1984, the policy for below Group "A" S &T Personnel was further modified and in note 7 of the said policy it was mentioned as under:
"Note 7: The ceiling upto which a Scientific/ Technical Assistant and Scientific Officer/Engineer Grade 'SB', recruited initially with the qualification of M.Sc./B.Sc./Diploma in Engineering can be considered for promotion, will be the grade of Scientist/Engineer 'SD (Rs.1100-1600). For promotion beyond 'SD', the officer must fulfil the basic educational qualifications prescribed for those grades"
3.4 Countering the arguments of the learned counsel for the applicants, the learned counsel for the respondents states that unless the S & T Personnel below Group "A" level 24 C-3/Item-41 OA-1391/2022 have the educational qualifications, they will not rise to the level where directly recruited Group "A" Scientists go. Instead, there is a ceiling that they will be considered for promotion till the grade of Scientist/Engineer 'SD' (Rs. 1100- 1600).
4.1 Countering the arguments of the learned counsel for the respondents, the learned counsel for the applicants states that though the first consideration took place in the year 2009 for giving promotion to the present applicants and they were found unfit for one reason or another, they should have been considered immediately after completion of one year as per the extant policy of the Government. However in the instant case, the same has not been done by the respondents, thereby depriving the applicant of their promotion between the period October 2010 to 26.03.2011 when the Policy of 1983 was scrapped. It is the crucial period and if the respondents would have considered the case of the applicants in the relevant period then they could have gotten their next promotion between 2010 to 2011, depending upon the residency period.
4.2 The learned counsel for the applicants further states that the policy of 2016 states that people below Group "A" personnel who were earlier promoted can be covered in the policy of 2016. Had the respondents given promotion to the 25 C-3/Item-41 OA-1391/2022 present applicants in time because that policy was effective from 2016, they would have also gotten promotion similar to their batchmates.
Analysis Here the crucial issue is whether the applicants could have been considered for promotion to the rank of Scientific Officer, Engineer (SOE-SB) during the period 1.10.2010 to 26.03.2011, when the 1983 policy was scrapped. 5.1 There is personnel policy for Scientist & Technical Officers & Staff below Group 'A' level. The policy is contained in letter dated 18.07.1983 (Annexure-A3, Page/86 of OA) from Deptt. of Electronics and it was effective from 1.10.1983. For clarity, the relevant portion of the said policy is reproduced herein:
"5.0 Promotions and normal annual increments will be effective from either of the two fixed dates, viz. 1st April and 1st October. The rationalization of the dates of increments of existing personnel will be done in the same manner as in the case of Group `A' S & T officers.
5.1 The minimum length of service for the first normal review for promotion to all grades of and below the level of Scientist/ Engineer Grade 'SC' (Rs.700-1300) will be three years on the standardized date. This yardstick may be changed later by Secretary, DOE, if found necessary, in the light of experience gained/changed circumstances.
5.2 The assessment, for the purpose of promotion upto the grades of Rs.550-900/- will consist of the following:-
(i) The assessment of performance, as reflected in the official's Confidential Reports;26
C-3/Item-41 OA-1391/2022
(ii) Trade test (only where these have been
prescribed for direct recruitment); and
(iii) Interview.
Where no trade test has been prescribed, the assessment will be on the basis of the CRs and interview.
5.3 The assessment, for the purposes of promotion, to the grade of Scientific Officer/Engineer Grade 'SB' (Rs.650-1200) and to the grade of Scientist/Engineer Grade 'SC' (Rs.700-1300) will be as follows:-
(i) Screening, by a Screening Committee on the basis of performance, as reflected in the Officer's Confidential Reports; and
(ii) Interview, by a Selection Committee Only those officers who pass the screening stage, in terms of the performance evaluation norms laid down for the purpose, will be called for interview and final assessment for promotion by a Selection Committee.
5.4 An official who does not qualify for promotion at a given review, will be eligible for his next review after a lapse of one year."
5.2 The applicants joined as S&T Assistants in various months of 2006 and one applicant in January 2007. Admittedly, they completed 3 years residency in 2009/2010 respectively. The applicants who completed 3 years residency by 1.10.2009 were considered for promotion to the rank of Scientific Officer/Engineer (SB). The applicants in the present OA were either found unfit as they did not complete 3 years residency period by 1.10.2009. Hence, it is incorrect on the part of the applicants and his counsel to assert that the respondents did not consider their case for promotion till 2015. As per 1983 policy, the applicants would have been considered for promotion to the rank of 27 C-3/Item-41 OA-1391/2022 Scientific Officer/Engineer after one year i.e. 1.10.2010. However, the respondents have admittedly submitted they were considering scrapping of the 1983 policy. It was scrapped vide OM dated 28.03.2011. Hence, when the respondents were contemplating scrapping of a policy, it is legitimate that they did not consider promotions under the same policy. The policy remained scrapped till 6.06.2013, when it was reintroduced. Hence, they were considered for promotion to the rank of Scientific Officer/Engineer (SB) as on 1.06.2013 (as per OM dated 12.06.2013 by the respondents, Page 107 of the OA, the date for consideration is June-July of the year). It is admitted by the parties that the applicants were given promotion as Scientific Officer/Engineer (SB) as per extent policy for below Group 'A' S&T officers w.e.f. 27.06.2013. We do not find any anomaly in the action of respondents, as the policy of 1983 remained under suspension and this action by the respondents was not challenged by any affected party. 5.3 The respondents considered the promotion of the below Group 'A' level Scientific Officers/Engineer (SB) to the rank of Scientist Grade 'B' (old SC) on 26.10.2016 after completing residency period of 3 years (from 27.6.2013). Hence, we find no infirmity in the action of the respondents. Subsequently, the applicants were promoted to the rank of Scientist - C as on 1.10.2020 under BGA S&T policy. Again, 28 C-3/Item-41 OA-1391/2022 we find no infirmity in the action of the respondents in promoting the applicants to the rank of Scientist-C w.e.f. 1.10.2020.
5.4 The learned counsel has tried to impress upon this Tribunal regarding the Flexible Complementing Scheme (FCS) introduced by the respondents vide Office Memorandum No.2/41/97-PIC dated 9.11.1995. It has been clearly demonstrated by the respondents in their counter affidavit as well as by their counsel during arguments that the FCS policy is meant for Group 'A' Scientists and is not applicable for Below Group 'A' S&T officer with the respondents. The only point worth as asserted by the learned counsel for the applicant is that the respondents suspended the 1983 policy for Below Group 'A' S&T officers from 28.03.2011 to 6.06.2013. Had the respondents not suspended this policy, the applicants would have had a fair chance of being promoted to the rank of Scientific Officer/Engineer (SB) by 2011-2012. But, as it has been mentioned earlier, this policy of suspension was not challenged by any of the affected parties. Conclusion
6. In view of the above analysis, the present OA lacks 29 C-3/Item-41 OA-1391/2022 merit and hence is dismissed. No order as to costs. Pending MAs, if any, also stand disposed of.
(Ajay Pratap Singh) (Dr. Chhabilendra Roul) Member (J) Member (A) /dkm/