Shri C. Gopala Krishna vs Bureau Of Indian Standards & Ors.
2011 Latest Caselaw 57 Del

 *          IN THE HIGH COURT OF DELHI AT NEW DELHI
 +                W.P.(C) No.15920/2006
 %                                                  6th January, 2011


SHRI C. GOPALA KRISHNA                          ...... Petitioner.
                                    Through:    Mr. J.P. Sengh, Senior
                                                Advocate       with   Mr.
                                                Sumit Batra, Advocate
                                                and        Mr.     Gaurav
                                                Bhardwaj, Advocate.
                        VERSUS

BUREAU OF INDIAN STANDARDS & ORS.               ...... Respondents

                            Through:            Mr.       B.K.      Sood,
                                                Advocate       with   Mr.
                                                Vipul             Sharda,
                                                Advocate.

 CORAM:
 HON'BLE MR. JUSTICE VALMIKI J.MEHTA

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

VALMIKI J. MEHTA, J (ORAL)

1. The petitioner, who is working as a Scientist with the

respondent No.1, has filed this writ petition under Article 226 of the

Constitution of India, challenging the action of the respondent No.1 in

denying him the promotion from the post of Scientist E to Scientist F.

2. The admitted case of the parties is that promotion takes

place on the basis of criteria for considering promotions under a

scheme titled as "Criteria for considering promotions under flexible

complementing scheme". This scheme reads as under:

"CRITERIA FOR CONSIDERING PROMOTIONS UNDER FLEXIBLE COMPLEMENTING SCHEME

(a) All officers will be first screened on the basis of gradings in the Annual Confidential Reports (ACRs) for consideration for promotion; the ACRs should be assessed on a 10 point scale giving 10 marks for "outstanding", 8 marks for "very good", 6 maks for "good", 4 marks for "average" and 0 for "poor" and only those officers who satisfy the minimum residency period linked to their performance as indicated in the table below be screened in.

            Number of years in the grade

            3             4           5          6      7         8

            Minimum percentage for eligibility

Scientist 90%             80%         70%        65%    60%       ----
B       to
Scientist
C

Scientist ---             90%         80%        75%    70%       60%
C       to
Scientist
D

Scientist ---             90%         80%        75%    70%       60%
D       to
Scientist
E




 Scientist ---           ---         90%       80%     75%       70%
E       to
Scientist
F

Scientist ---           ---         90%       80%     75%       70%
F       to
Scientist
G

Exceptionally meritorious candidates with all outstanding gradings may be granted relaxation in the residency period, the relaxation being not more than one year on any single occasion.

Such a relaxation will be limited to a maximum of two occasions in their entire career.

(b) As the procedure adopted for assessment of CRs in various Scientific Departments differ at present, it has been decided that an external member, from Department of Atomic Energy, Space or DRDO who have developed over the years a fine tuned system of screening in meritorious Scientists maybe co-opted in the selection process, till such time a system gets established in other Scientific Departments. The position will, however, be revised after 5 years from the date of issue of this Office Memorandum.

(c) All Officers who are screened-in will be called for an interview. The performance in the interview will also be graded similarly on a 10 point scale and the eligibility for promotion will be based on the same norms as in the above Table.

(d) Field experience in research and development and or experience in implementation of such scientific projects in compulsory for promotion of scientists recruited to the posts in the Secretariat of the Scientific Ministries/Departments to higher grades under FCS. Field experience of at least 2 years and 5 years respectively will be essential for promotion to Scientist F and Scientist G grades respectively. However, during the

transitional period, Committee may relax this requirement in case of meritorious candidate."

3. A reference to the above scheme shows that promotion

takes place on compliance of two requirements. The first is getting of

a minimum number of marks on the basis of the ACRs linked with the

residency period and the second requirement is of appearing before an

Interview Board which gives marks on a 10 point scale. The marking in

the interview and promotion consequently will be based on the same

norms as in the table giving the percentage of marks on the basis of

ACRs linked with the residency period.

4. Interviews in the present case were held by the respondent

No.1 on 26.6.2003 and the petitioner was not promoted because

though he had been brought into the zone of consideration on the

basis of seven years residency period requiring 75% marks, he only

obtained 70% marks in the interview.

5. The contention of the learned senior counsel for the

petitioner is that the interpretation of clause (c) of the flexible

complementing scheme as given by the respondent No.1 is flawed

because once the petitioner got 70% marks and which was good

enough for promotion of a Scientist who had completed an eight years

residency period then there was no reason to deny promotion to the

petitioner who in the meanwhile before appearing before the Interview

Board had completed eight years residency period though he was

called for the interview on the seven year residency period basis.

6. I am not able to agree with the contentions as raised by

the learned senior counsel for the petitioner for the following reasons:-

(i) Firstly, the scheme with its para (c) has been uniformly

applied by the respondent No.1 to all the persons and consequently it

is not as if the respondent No.1 has caused discrimination to the

petitioner by selective application of the scheme.

(ii) Secondly, the whole basis for bringing into zone of

consideration a person as per the table in clause (a) of the scheme is

that percentage of marks of the ACRs is necessarily linked with the

residency period whereby lesser marks are good only provided the

residency period is also longer and conversely, if a person is otherwise

successful in getting a higher percentage of marks on the basis of

lesser residency period such person is considered earlier for

promotion.

(iii) Thirdly, in my opinion, there is nothing illegal or arbitrary in

the respondents interpreting clause (c) of the scheme by holding that

in interview also the marks which are obtained must necessarily be at

least that percentage of marks as are required in the correlated

residency period on the basis of which a candidate is called for the

interview. This Court cannot substitute its interpretation for the

interpretation as is done by the respondent No.1/Departmental

Promotion Committee inasmuch as if two views are possible, unless the

view of the Department results in gross absurdity, this Court will not

substitute its interpretation/opinion for that of the Department, more

so when the scheme has been consistently applied. In my opinion

there is nothing wrong in requiring a person having lesser number of

years of residency to have higher proportionate marks on a 10 point

scale in the interview for being granted promotion because after all it

is a scheme for accelerated promotion and therefore requiring a higher

percentage of marks on the 10 point scale in the interview for

residency period is surely not an arbitrary requirement because as

already stated it gives accelerated promotions to persons with lesser

residency period.

7. In view of the above, I do not find any merit in the petition

which is therefore dismissed, leaving the parties to bear their own

costs.

JANUARY 06, 2011                                 VALMIKI J. MEHTA, J
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