Jaivir Tyagi And Ors. vs Union Of India (Uoi) And Ors. ...
2005 Latest Caselaw 1465 Del

JUDGMENT

S. Ravindra Bhat, J.

Page 2180

1. In these proceedings under Article 226 of the Constitution of India, the narrow controversy requiring determination is in respect of the date from which 'in situ' promotion, as per the Assured Promotion Scheme has to be made effective.

2. The petitioners are scientists working in the National Institute of Hydrology ('The Institute') a registered society controlled by the Union Ministry of Water Resources. Clause 29 of the Bye-laws of the Institute provides that till such time separate regulations concerning its employees are framed, the concerned rules and orders applicable to Government employees would govern its officials, Page 2181 subject to modifications effected by the Governing Body of the Institute. All powers are reserved with the Governing Body of the Institute, which is also authorized to resolve any doubts.

3. The Institute had its own assessment promotion scheme (APS) in 1987. Pursuant to a letter of the Central Ministry of Water Resources, the Institute revised the APS in 1990. The main features of this APS were :

(1) Applicability to Cadres 1 to 4 (ie Scientists B,C,E and F)

(2) Eligibility of Cadre 1 to 3 scientists for promotion on completing 5 years service, subject to other conditions;

(3)APS from inter alia scientist C to E restricted to 30% of total strength of scientist B,C and E together;

(4) Promotion to be made effective from the date the scientist completed the qualifying service (called ' The anniversary date) " Rule 12(a).

(5) In promotion under the APS, the incumbent carried the post with him (Rule 10).

4. The petitioners were recruited by the Institute, and were working in different posts, of scientist. They aver that by notification, dated 9.11.1998 the Union Ministry of Personnel, Public Grievances and Pension, issued guidelines for "in situ" promotion of personnel in its Scientific and Technical Departments. After this, the Institute had referred the issue of modification/ changes to APS to its Standing Committee, for the purpose, in 1999-2000. Certain deliberations took place; ultimately on 168-2000, the Standing Committee formulated the modified APS. The modified APS were approved, by the Governing Body of the Institute, on 26-8-2000.

5. The salient features of the modified APS (hereafter 'APS-2000G') were :

(1) APS was to be performance based. The promotion, though in-situ, was to be on the basis of ACR and interview;

(2) Different qualifying 'residency' periods were laid down for each promotion;

(3) Transparent performance norms to be applied;

(4)Clauses 8 and 12 read as follows :

"8(a) Assessment period will be the financial year the assessment will be done once in a year. As far as possible, assessment should be completed by 30th September of the year and only scientists eligible as on 1st January will be considered for assessment promotion.

"8(b) Promotion under these rules will be given effect from the date on which a scientist completes the qualifying service in the year of review (called the Anniversary Date)."

"8(c) In case a scientist is not recommended for promotion after consideration by the Assessment Committee, his case will be renewed in subsequent successive years and when the Assessment Promotion Committee recommends his case on such review, the promotion will be given effect from the Anniversary date in the year of review."

Page 2182

"12. In addition to above the following conditions will also apply;

(a) All scientists who have completed 5 years or more of qualifying service/ residency period in respective grades prior to 1.1.1999 and satisfy minimum essential educational qualifications as per clause 2 will be eligible for consideration for assessment promotion under these rules with effect from 1.1.1999 provided they satisfy the performance screening criteria of clause 5(d). The anniversary date will not be applicable in their cases.

(b) All scientists who have completed the qualifying services/ residency period as per these rules on or after 1.1.1999 and satisfy minimum essential educational qualifications as per clause 2 will be eligible for consideration for assessment promotion u der these rules provided they satisfy the performance screening criteria of clause 5(d). The promotions in these cases will be with effect from their respective anniversary dates on or after 1.1.1999 in the year of review."

6. The petitioners have been working for long periods. They were called upon by the Institute to furnish self- appraisals up to 1-1-1999; which they did. The Institute held interviews under the Scheme, in June 2001. By separate orders dated 9-8-2002, each one of them was given assessment promotion with effect from 18-7-2001, to the post of Scientist 'E1'.

1. It is claimed in these proceedings that as per the modified scheme, as also their own records, the petitioners' promotion have to be given at least with effect from 1-1-1999. The petitioners rely on Clause 12(a) for the purpose, and state that in view of this condition, although their "anniversary date" ie date of completion of qualifying service, was earlier, their right to be promoted under APS-2000 is limited in point of time to 1-1-1999.

2. The petitioners allege that they sought for promotions with effect from 1-1-1999; however, in the rejection letter, issued in 2003, the Institute took the stand that the promotions could not be retrospective. It is averred that this is contrary to the APS-2000. The petitioners attack the denial of promotions from the dates they completed the qualifying service, or at least from 1-1-1999, as arbitrary, and based upon non-application of mind. The petitioners also allege discrimination, stating that so persons were directly recruited on 31-3-1999, but were permitted to complete with the petitioners in the assessment process, and granted promotion.

3.The respondents, in their counter affidavit have averred that :

"The general principle of promotion is that promotions are made effective from a prospective date after the competent authority has approved the same. This is the general principle followed in promotions and this principle is applicable in the case if Institute promotions under Flexible Complementing Scheme as well. Ministry of Personnel, Public Grievances and Pension (Department of Personnel and Training) Govt. of India vide Office Memorandum No.AB-14017/32/2002-Estt.(RR) dated 17.07.2002 issued the instictions that the promotions are to be made effective from a prospective date (copy of the letter dated 17.07.2002 is enclosed as ANNEXURE-2)

Page 2183

The said office memorandum dated 17-7-2002 reads as follows :

"The recommendations made by the Fifth Central Pay Commission for modifying the Flexible Complementing Scheme (FCS) in operation in scientific and technological departments for in situ promotion of scientific/technical personnel with it view to removing the shortcomings/ inadequacies in the scheme had been examined some time back and this Department in O.M. No.2/41/97-PIC dated 9.11.1998had issued detailed guidelines modifying the then existing FCS. From a number of references received in this Department, it appears that an element of confusion exists in some scientific departments on the date from which in situ promotions under FCS are to be given effect. Promotions are made effective from a prospective date after the competent authority has approve the same. This is the general principle followed in promotions and this principle is applicable in the case of in situ promotions under FCS as well.

As a matter of fact, no occasion requiring application of promotion with retrospective effect should arise in FCS cases, as it is provided in the rules for scientific posts that the Assessment Boards shall meet at least once a year to consider cases of isitu promotions. Rules notified for scientific posts also contain a provision for review of promotion by the Selection Committee/ Assessment Board twice a year G" before 1st January and 1st July of every year and the Selection Committee/ Assessment Board is required to make recommendation on promotions keeping in view these crucial dates of 1st January and 1st July. The competent authority, which has to take a final view based on these recommendations, shall ensure that no promotion is granted with restrospective effect."

10.The Institute also avers, in Para 3.3.(f) that under the earlier APS --

"(f) The promotion under these rules will be given effect from the date on which a Scientist completes the qualifying service (Called the ANNIVERSARY DATE)"

11. It is averred that the Screening Committee as per APS found the petitioners eligible as on 1.1.1999. The petitioners' allegation of discrimination and wrongful denial of promotion is, however, refuted. The relevant averments are as follows :-

"The Screening Committee prescribed in the Assessment Promotion Rules, scrutinized the cases and the following candidates were found eligible as on 1.01.1999 for consideration for promotion from Scientist C to Scientist E1:

1. Sh. Avinash Agarwal

2. Sh. Jaivir Tyagi

3. Dr. Sudhir Kumar

4. Dr. Pratap Singh

5. Dr. C.K. Jain

6. Sh. R. Mehrotra

Page 2184

7. Sh. S.K. Jain

8. Dr. S.K. Mishra

9. Sh. Biswajeet Chakraborty

3.12 " 3.14 The contents of the corresponding paras needs no reply being a matter of record.

3.15 In reply to the corresponding para it is stated that the eight Scientists who were considered for promotion with effect from 01.01.1999 under the Assessment Promotion Rules from Scientist 'C' to Scientist 'E-1' it can be grouped as follows :-

(a) Scientists who were already in 'E-1' grade by selection through direct recruitment, the details are as follows :- S.No. Names Date of joining in 'E-1' by direct recruitment

1.Sh. Partap Singh 31.03.1999 2.Sh. C.K. Jain 31.03.1999 3.Sh. R. Mehrotra 31.03.1999 4.Sh. S.K. Jain 31.03.1999 5.Sh. S.K. Mishra 31.03.1999

(b)Scientist '":

Names

1.Sh. Avinash Agarwal

2.Sh. Jaivir Tyagi

3.Sh. Sudhir Kumar

The directly recruited Scientists in 'E-1' who were in the grade from 31.03.1999 would have become junior to the Scientist 'C' on implementation of promotion under Assessment promotion Rules from 01.01.1999. The case was examined in detail and it was decided in conformity with the instructions of the Government that promotions will be made from prospective date only.

The Assessment Promotion Committee's recommendations in the instant case were decided to be implemented from the date of convening of Assessment Promotion Committee i.e. 18.07.2001. Therefore, the promotions of the three Scientist " to Scientists 'E-1' were made from 18.07.2001. In respect of the five Scientists who were already in 'E-1'by direct recruitment from 31.03.1999, no change in their date of entry in 'E-1' was made. These Scientists were shown in 'E-1' from this date and therefore the were not assigned on earlier date by promotion through Assessment Promotion Rules. The promotions were made with the approval of Chairman, Governing Body and ratified by the next Governing Body meeting."

12. The respondents produced the original records containing the 25th, 56th, 57th and 58th meetings of the Governing Body of the Institute. These record the deliberations and the stages in which APS-2000 were formulated. By the 25th meeting, the Governing Body referred the issue of APS for consideration Page 2185 to the Standing Committee. The APS was formulated in the Standing Committee deliberations, and finalized on 16-8-2000. They were approved, by the Governing Body's meeting dated 23-8-2000.

13. On an analysis of the documents and pleadings, the following facts emerge:

(1)APS is a Scheme whereby consideration for promotion is based on a combination of factors, such as number of posts available for the higher post, performance (the standards being spelt out clearly), based on appraisals, and interview;

(2)Each post has a separate qualifying service ('residency period');

(3)The modified APS enabled promotions of candidates whose eligibility fell prior to 1-1-1999, only from that date;

(4)Clause 8(b) provided that promotions would be effective fromdate of completion of qualifying service in the year of review;

(5)Clause 12(a) provides that all Scientists completing 5 years or more residency period prior to 1-1-1999, with the requisite qualification, would be eligible for promotion with effect from 1-1-1999.

(6)In case of other Scientists, completing the qualifying service after 1-1-1999, Clause 12(b) entitled the official to promotion on the 'anniversary date'.

14. Mr. Saket Singh, learned counsel for the petitioners submits that the history of the APS and its objective has been to relieve stagnation, and frustration among scientists in the Institute. It is submitted that this is clear from one common condition in all the APS, ie that it is an 'in situ' promotion, based on certain screening, performance parameters, and subject to fulfillling educational and qualifying service criteria. Central to this whole scheme is the entitlement of a candidate, for promotion, on the date of completion of his requisite qualifying service. It was submitted that this concept existed in the previous APS, and has been incorporated in APS-2000 also.

15. It is submitted that the APS-2000 adopted a cut off date creating two classes of eligible persons. The first was a group comprising of officials whose promotions were long over due. For them the date from which the promotion was to be effective was 1.1.1999. In respect of the other category, namely, those becoming eligible after 1.1.1999, the entitlement to promotion was to be from their respective 'anniversary date' i.e. the date on which they completed the qualifying service. It was submitted that a careful reading of the rules shows that promotions though based on merit, are not premised upon existence of vacancy on the date or the only condition was that the total number of posts in the higher cadre ought not to exceed a certain prescribe limit. This is also re-inforced by the fact that incumbent is given 'insitu' promotion amounting in up-gradation, and the higher post would revert after his retirement or further promotion.

16. Learned counsel submitted that reference to the guidelines of the Government do not inhibit or restrict the benefits under APS. Even during the existence of recruitment rules framed under proviso to Article 309 of the Constitution, applicable to scientific and technical establishments under Page 2186 the Central Government, the Institute had formulated its own policy right from the year 1985-86; these were modified in the year 1990 and even thereafter. Hence, the reference to the Memorandum dated 17.7.2002 cannot justify the denial of promotion from the date the petitioners completed the qualifying service.

17. Mr. Harish Chandra, learned senior counsel appearing on behalf of the respondents submitted that the Fundamental and Supplementary rules govern establishment of the respondents. Accordingly, the Guidelines and Circulars issued from time to time were automatically attracted and regulated the officials and employees of the Institute. This was made in support of the submission that the Department of Personnel and Training, the concerned Ministry had issued a Circular on 17.7.2002 directing that no retrospective promotion could be granted under any circumstances. It was also submitted that as per the recruitment regulations adopted by the Institute as amended in the year 1991 there was no right vesting an official or employee to claim promotion from particular date.

18. Learned counsel for the respondents also submitted that the fundamental and supplementary rules as framed by the Government of India, and amendments made from time to time would apply mutates mutants to employees of the Institute. para 9 of the working Rule No. 2 of the Policy of the Institute were relied for the purpose. It was submitted that the original APS, which was in force since 1987 was reviewed/ revised in the year 1990. As per the Scheme review of the provisions had to be undertaken every three years. The Scheme was slightly modified in 1993. It was submitted that in accordance with the provisions of the Scheme the required percentage (for promotion under APS) got exhausted and no promotional avenues were left for the scientists who had become eligible for promotion in 1997. In this view the proposal to enhance the percentage was placed before the Governing Body. In the meanwhile, the DOPT by Notification dated 9.11.1998 had issued guidelines for in-situ promotions, which were supplemented by the circular dated 17.7.2002. The Governing Body referred the matter to the Standing Committee which formulated the APS-2000; it was ultimately adopted. It is submitted that DOPT vide Memorandum dated 8.8.1999 had clarified that certain deviations had been made to the modified APS of the Institute that were in vogue. This included the one deviation noticed earlier namely, that a scientist was to be given promotion from the date on which he completed the qualifying service in the year of review called the anniversary date, it was submitted amounted to promotion from retrospective date. Accordingly, a clarification was issued on 17.7.2002 to remove that element of doubt in some scientific and technical organizatioon. The promotions, therefore, could not be given from an anterior date.

19. Learned counsel relied upon the judgment of the Supreme Court reported as Union of India v. K.K. Wadhera to say that nobody has a right to claim promotion on retrospective basis.

20. Learned counsel for the respondents lastly submitted that the grievance of the petitioners are unfounded and that in any case the issue of discrimination raised is also baseless. He submitted that as far as the five Page 2187 officials who were given even grads on 31.3.1999 were concerned, they were directly recruited officials and not promoted under ACP.

21. The issue, which arises for consideration is whether in terms of APS-2000, the petitioners' claim for promotion with effect from the date they completed their qualifying service can be granted. It is not disputed that the APS was conceived to relieve stagnation and is in addition and not in derogation of the existing conditions of service. As averred by the respondents themselves the APS of 1990 on account of its having been operated, resulted in unavailability of further posts leading to stagnation at least from the year 1997. Hence, there was a felt need to formulate and implement a new Scheme. It appears that in spite of being aware of this problem the respondents were caught up in deliberations for quite sometime. Eventually, the APS-2000 as formulated and brought into force.

22. As noticed earlier the APS-2000 does not really entitle automatic promotion; it is a merit based, performance based in-situ promotion. There are, of course, certain vacancy restrictions in the sense that different percentages have been prescribed as outer limits for the number of promotions available under the Scheme, in respect of various categories of posts. Likewise, qualifying service/ residency periods also vary for each post. Once the official completes his qualifying service, he is required to complete his self- assessment and appraisals that eventually lead to the screening of his candidature; after screening, the official is interviewed and then cleared for promotion.

23.It would be immediately apparent from the above narrative that the Scheme, basically designed to relieve stagnation also was careful to ensure that only the merited and deserving were promoted. At the heart of the controversy is the proper approach to be adopted while interpreting clauses 8(b) and 12(a) and 12(b). Clause 8(b) spells out that a candidate would be given promotion from the date he completes his qualifying service in the year of review, which is called the anniversary date. This is unlike the previous APS-1990, which did not bring the concept of year of review. Clause 12(a), on the other hand, categorically states that in respect of those who completed five years qualifying service before 1.1.1999, promotion would be granted subject to other conditions with effect from that date and that the concept of anniversary date would be inapplicable to them.

24. As far as those completing qualifying service after 1.1.1999 are concerned, clause 12(b) states that they would be entitled to promotion on their anniversary date.

25. A reading of the APS-2000 would show that three concepts namely, completion of qualifying service 'anniversary date' and 'year of review' have been talked about. The last concept namely, year of review has not been defined. The pre-existing riles/ scheme enabled an official employee to be promoted, after approval of his promotion, with effect from the date he completed the qualifying service. The question, therefore, is whether Clauses 8(b) and 12(b) have altered the situation. A reading of he first part of clause 8(b) as also clause 12(a) shows that an official is entitled to promotion from the date of completion of qualifying service at least as far as those who became Page 2188 eligible prior to 1.1.1999 are concerned. The rationale for this is no far to seek; the object of introducing an APS-2000 was admittedly to provide for and relieve stagnation on account of drying up of promotional avenues in the previous Scheme which remained un-amended, since 1993. Several officials including the petitio ers had completed their eligibility held much prior to 1.1.1999. Therefore, even while prescribing for grant of promotion on the date of completion of qualifying service in the year of review, clause 12(a) relieved the restrictions in so far as those wh completed their eligibility prior to 1.1.1999. This is clear from clause 12 (a) itself; it states that in respect of such persons the anniversary date would not apply. This has both a restrictive as well as permissible meaning. Restrictive because su h persons would, otherwise, been entitled to promotion from a date interior to 1.1.1999 i.e the actual date of completing the qualifying service; permissible because it enables the authority to grant promotion with effect from 1.1.1999. Thus, I am of the opinion that for scientists and officials completing five years' qualifying service before 1.1.1999, there is no impediment in the APS-2000 for grant of promotion with effect from 1.1.1999; indeed, it provides for such a course of action. This conclusion is supported by two considerations; first, that clause 12(a) occurs after clause 8(b) in the Scheme and, therefore, acquires primacy and second, that if this interpretation were not to be given the very object of clause 12(a) would be defeated; indeed t at provision would be rendered redundant.

26. As far as scientists and officials who complete their eligibility after 1.1.1999 are concerned, the relevant rules would be Clauses 8(b) and 12(d). But for the introduction of the concept of year of review, there is no change in the intention to gran promotion from the date the official completed his qualifying service. As noticed earlier, 'year of review' has not been defined any where. If that expression were to be construed as the year in which the assessment is actually made, then there wou d be no objective standard because in respect of certain employees assessments might be made at the earliest whereas assessment in the case of others might be delayed considerably. Hence, the concept of 'year of review' has to be linked with the dat on which the person becomes eligible to be considered for promotion. In my opinion, the matter can be resolved by interpreting the expression 'year of review' to imply the requirement of having to consider the employee along with other eligible cand dates in the particular year in which he became qualified. Thus, for instance if an official completes his qualifying service on 1.1.2000 it would be reasonable for the respondents to consider his case as on 1.1.2000 along with other eligible officers i that year. This is consistent with Clause 8(a), which states that the assessment period will be the financial year; assessment will be done once in a year. It also mandates that as far as possible, assessment should be completed by 30th September of the year and only scientists eligible as on 1st January will be considered for assessment promotion.

27.The proper method of construing the provisions namely, clause 8(b) and 12(b) is to mandate the Institute to carry out the screening and assessment (review) immediately upon the completion of formalities by the concerned official who completes his qual fying service. This interpretation is supported Page 2189 by the respondents' conduct, which had required the officials to indicate their appraisals as on 1.1.1999.

28.I find merit in the submission of the petitioners that the subsequent circular of the Central Government dated 17.7.2002 cannot in terms apply to the present case. If the respondents' contentions were to be accepted, there would be no basis for the grant of promotion to the petitioners themselves. Admittedly, the petitioners were promoted on dates anterior to the passing of the orders. If the Circulars were to be applied in its own terms, there would have been no scope for such ante- dated promotions.

29. I find that the second rationale for depriving the petitioners the benefit of clause 12(a) namely, that it would result in their becoming their seniors to persons directly recruited on 31.3.1999 is arbitrary. If in accordance with the rules the petitioners were entitled to be considered and promoted from a particular date, as per Scheme on the basis of the APS, there is no question of that interfering with the rights of subsequent direct recruits. It is well-settled that direct recruits and promotee take their respective seniority on the basis of rules. Under the rules the petitioners are entitled to be promoted with effect from 1.1.1999. The wrongful denial of that benefit and the subsequent appointment on direct recruitment basis to some others cannot afford a legitimate justification to deprive the Petitioners' entitlement. I am also of the opinion that the reference to KK Wadhera's case is not apt; the Supreme Court there was concerned with a regular promotion. Here the promotion under APS is not a regular promotion under the Rules.

30. In view of the above conclusions, I am of the view that the petitioners are entitled to succeed.

31. The petitions, therefore, are allowed and a direction is issued to grant promotion to the petitioners with effect from 1.1.1999 in accordance with clause 12(a). WP(C) No. 4928/03 and WP(C) 20568-81/05

32. In these proceedings petitioners were denied promotions from the date of their having completed the qualifying service. These petitioners completed their qualifying services after 1-1-1999 In the light of the discussion in WP(C) 4916/03 and connected cases, the petitioners are entitled to the benefit of clauses 8(b) read with 12(b). Thus, they would be entitled to promotion on their anniversary date (ie date of completing the qualifying service in the year of review). As discussed earlier, in WP(C) 4 16/2003, the concerned officials have a right to be considered, in accordance with Clause 8(b) on particular dates. Correspondingly, the respondents are under an obligation to consider their cases as on the date they complete qualifying service, subject o the conditions in clause 8(a).

33. In these cases, therefore, the petitioners are entitled to be considered and promoted relative to the end of the period their appraisals were called, by the Institute. Having regard to the circumstance that the orders of promotion in these cases Hough made in the year December 2002, and January, 03 the respondent-Institute ought to treat it as applicable as on Page 2190 the dates when the appraisals were called for and as on the dates on which the review for the purposes of promotion fell due, as per clause 8(a). Thus, if the petitioners completed their qualifying service and were asked to submit their appraisals as of a particular date, such a date shall be their date for purposes of promotion. A direction is accordingly issued to carry out consequently amendments to the promotion orders issued to the petitioners.

34. These petitions are accordingly allowed to the extent indicated above, with no orders as to costs.