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Dr. Ramesh Chandra Panda, Member (A) Shri B. R. Mishra and Shri S. K. Jagwani, the applicants herein, have jointly filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 calling in question order dated 28.4.2008 (Page-12) only promoting them to the post of Scientist E, whereas they were entitled to be promoted as Scientist F under the Flexible Complimenting Scheme (FCS). They also seek setting aside of the orders dated 1.7.2008 (Page-13) and March, 2009 (Page-14) rejecting their representations seeking promotion to the post of Scientist F, and to direct the respondents to grant them in situ promotion under FCS from Scientist D to Scientist F w.e.f. 28.4.2008, when 17 other similarly situated persons were granted the same, with all consequential benefits.

2. Brief facts on which the above reliefs are sought to rest, as projected in the Original Application, reveal that the first applicant was granted in situ promotion under FCS from the post of Senior Scientific Officer-1 to that of Principal Scientific Officer in the scale of Rs.12000-375-16500 w.e.f. 23.3.1998, whereas the second applicant was granted the aforesaid promotion w.e.f. 5.8.1998. It is the case of the applicants that rules relating to in situ promotion under the FCS applicable to scientific and technical Group A posts in scientific departments were notified on 9.11.1998, and the erstwhile designations of the scientific and technical posts which came to be covered under the amended FCS in the Ministry of Non-Conventional Energy Sources (now redesignated as Ministry of New and Renewable Energy) (in short MNRE) were re-designated vide order dated 17.12.1998. It is the case of the applicants that under the unamended FCS or the Recruitment Rules, as they were then referred to, there was no post equivalent to Scientist E as shown under the modified FCS. Under the erstwhile unamended Recruitment Rules, which were referred to as the Department of Non-Conventional Energy Source Group-A Gazetted Posts (Non-Ministerial Scientific and Technical) Amendment Rules, 1989, the next promotion from the post of Principal Scientific Officer, i.e., Scientist D was to the post of Director (Technical), i.e., Scientist F. The eligibility criteria for promotion to the post of Director (Technical) (Scientist F) from the post of Principal Scientific Officer (Scientist D) was five years regular service in the grade. Rules pertaining to FCS underwent modification pursuant to the notification dated 9.11.1998. However, on 14.10.1999 a clarification was issued by DOP&T wherein it was specified that the relaxation was in respect of Principal Scientific Officer (Scientist D) who, under the erstwhile rules were eligible for promotion to the grade of Rs.5100-6300 (pre-revised), i.e., Director Technical or Scientist F directly from the scale of Rs.3700-5000 (pre-revised) i.e., Principal Scientific Officer/Scientist D, and was applicable only to those Principal Scientific Officers/Scientists D who were in position as on 9.11.1998. There is no condition that (i) they should have been assessed at least once for promotion to the higher grade of Rs.5100-6300 (Rs.16400-20000) as on 9.11.1998, and (ii) this relaxation is for only one more occasion. In other words, all those Scientists D who were in position as on 9.11.1998 and were eligible under the extant rules for promotion directly to the grade of Scientist F, would continue to be eligible for movement directly to the grade of Scientist F. On 26.4.2000, an office memorandum was issued as per which it was specified that all those Scientists D who were in position as on 9.11.1998 and were eligible for promotion directly to Scientist F grade under the recruitment rules in vogue prior to the introduction of the modified FCS, would continue to remain eligible as a special case only on completion of the minimum eligibility service as under the recruitment rules prior to 9.11.1998. It is the case of the applicants that as they fulfilled the aforesaid conditions, they were called for consideration by the Assessment Board for in situ and personal promotion from Scientist D to Scientist F. They were asked to be present at the meeting of the Assessment Board to be held on 19.9.2006 and 20.9.2006. The said meeting was, however, cancelled and the applicants were again called before the Board vide OM dated 24.1.2008 and 8.4.2008. The meeting of the Board was held on 16.4.2008 to consider grant of in situ promotion to 19 Scientists D to the grade of Scientist F under the unamended FCS. Vide notification dated 28.4.2008, 17 persons except the applicants were granted in situ promotion on personal basis under FCS in the pay scale of Rs.16400-20000. However, the names of the applicants were left out. Vide another order dated 28.4.2008, the applicants were appointed as Scientist E on personal basis under FCS. The applicants represented against the non-grant of in situ promotion to Scientist F on 9.5.2008, but it is their case that they were threatened with punitive action and were directed to report on the promotional post of Scientist E vide OM dated 6.5.2008, and that having no other alternative, they gave their joining letters on 7.5.2008 on the post of Scientist E, however, mentioning therein that their joining was without prejudice to their rights. The representation made by the applicants was rejected vide OM dated 1.7.2008. Aggrieved, they made yet another representation which met with the same fate vide OM dated March, 2009. Being aggrieved, the applicants filed OA No.961/2010 in this Tribunal which was allowed to be withdrawn with liberty to file fresh one after annexing typed copies of the illegible documents and annexing the FCS rules. It is in wake of the facts and circumstances as mentioned above that the present Original Application with the reliefs already indicated above has been filed.

3. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and by filing their counter reply contested the cause of the applicants. While giving the brief facts of the case, it has inter alia been pleaded that the applicants are working as Scientists E. Prior to appointment on the present post, both the applicants were working as Scientists D with effect from 23.3.1998 and 5.8.1998 respectively. The procedure adopted in the case is stated to be on the basis of guidelines as contained in DOP&T OM dated 9.11.1998 and notification of the even date for making in situ promotion of Scientists under FCS. It is pleaded that the initial screening of Scientists who possess the minimum residency period, is done on the basis of their respective ACRs by the Screening Committee under the chairmanship of Secretary, MNRE, Joint Secretary (Admn.) (member) and an external member. After initial screening, the screened-in Scientists are called for interview before the Assessment Board chaired by Secretary with Joint Secretary, MNRE as member, Additional Secretary/Joint Secretary, M/o Environment and Forests and DOP&T Nominees, and at least three experts as members. The recommendations of the Assessment Board for promotions to Scientist F and Scientist G levels are referred to the departmental Peer Review Committee. As per the guidelines on FCS contained in the DOP&T OM dated 9.11.1998, field experience of at least two years is required for in situ promotion to Scientist F, and as per DOP&T clarification dated 14.10.1999, Principal Scientific Officers [pay scale Rs.3700-5000 (pre-revised) (now Scientist D  pay scale Rs.12000-375-16500 (revised) (further revised to Rs.15600-39100 + Grade Pay Rs.7600/- as per 6th CPC], who were in position as on 9.11.1998 and were eligible under the extant rules for promotion directly to the grade of Rs.5100-6300 (pre-revised) will continue to be eligible for promotion to the grade of Rs.16400-450-20000 after completion of the eligibility service as prescribed in the rules that existed prior to the amendment, as a one-time measure. The appointing authority for in situ promotion up to the level of Scientist F is the Minister (NRE) on the basis of recommendations of the assessment board and review by DPRC. Insofar as, the applicants are concerned, they were appointed as Scientist D on in situ basis under the FCS with effect from 23.3.1998 and 5.8.1998 respectively. They were in position on the post of Scientist D on 9.11.1998 and had completed the minimum residency period of five years. Therefore, they were eligible to be considered for in situ promotion to Scientist F under FCS. The eligible Scientists D including the applicants were screened by the Screening Committee on 4.4.2008. Thereafter, all the screened Scientists were invited for interview by the Assessment Board. The board in its meeting held on 16.4.2008 considered 19 Scientists-D grade and recommended two applicants, for in situ promotion from Scientist D to Scientists E, and further recommended other 17 Scientists D to be taken up for review by the DPRC. The recommendations of the Assessment Board were submitted for approval of the competent authority, i.e., Minister (MNRE), who approved the promotion of both the applicants from Scientist D to Scientist E on in situ basis under FCS on 28.4.2008. However, on consideration of the representations submitted by the applicants were rejected. Primarily, it is the case of the respondents that the applicants could not be promoted from Scientist D to Scientist F as they were not found fit by the Assessment Board. With regard to the plea of the applicants that they fell under the special case wherein PSO/Scientist D were allowed promotion directly to Scientist F, and hence there was no scope or provision for promotion to Scientist E under the extant rules, it is stated that the applicants are ignorant with regard to in situ promotion under FCS as against promotion based on seniority. It is pleaded that in the instant case, only the guidelines/provisions under FCS which was applicable to scientific and technical (Group A) posts in Ministries including MNRE are relevant as the meeting of the Assessment Board was convened for considering the scientists under FCS only and not on the basis of seniority under the provisions of recruitment rules. It is further pleaded that the post of Scientist E was introduced by the DOP&T consequent on the issue of guidelines under the modified FCS in November, 1998, and the respondent Ministry had issued an order dated 17.12.1998 to all concerned mentioning the revised designations of scientists including the newly introduced Scientist E on the basis of DOP&T notification dated 9.11.1998 regarding FCS for information, necessary action and compliance. As per DOP&T clarification dated 14.10.1999 all those Scientists D who were in position as on 9.11.1998 and were eligible under the extant rules for promotion directly to the grade of Rs.5100-6300 would continue to be eligible directly to the grade of Rs.16400-20000 (scale further revised after 6th CPC). However, in response to their representations at the time of their in situ promotion to Scientist E, the applicants were informed on 1.7.2008 that mere eligibility for promotion to Scientist F by being in position as Scientist D on 9.11.1998 would not entitle one to be promoted automatically to Scientist F, as promotions under FCS are based on merit and not on seniority basis and that after screening by the committee, the assessment board assesses the scientists for promotion to the appropriate grades. Thereafter, recommendations of the Assessment Board were considered and approved by the competent authority in the Ministry.

13. We may now advert to the other issues raised by the parties. It is not in dispute that the Recruitment Rules of 1989 provided for the promotion from the post of Principal Scientific Officer to that of Director. But the Flexible Complementing Scheme coming into force from 1998 various levels were provided for in situ promotion personally to the Scientist/Technical Officers. This introduced Level-E for the Scientists between Level D & F. It is seen from the order dated 17.12.1998 available at Page 15 of the paper book issued by the respondents that the Scientist-E has been introduced consequent to the FCS implementation. Admittedly, the promotion to the post of Director (Technical) was from the feeder category of Principal Scientific Officer. But the revised designation, scale of pay for Scientist-B to Scientist-G was introduced by the said order dated 17.12.1998. Even in the Recruitment Rules the method of recruitment to the post of Director was by selection which means merit was the basis. Even for the sake of applying the earlier RR, the applicants would not have made the mark for Directors post as the Assessment Board had declared him fit for Scientist E and did not recommend for Scientist F.