Union Of India And Ors. vs Vinay Kumar
2014 Latest Caselaw 3412 Del

$~14
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                             DECIDED ON: 30.07.2014

+       W.P.(C) 2357/2014 and C.M. No. 4963/2014 (stay)
        UNION OF INDIA & ORS                            ..... Petitioners

                          versus
        VINAY KUMAR                                     ..... Respondent

Appearance:

Mr Ankur Chhibber, Advocate for Petitioners-Union of India Mr D.R. Gupta, Advocate for Respondents with Respondent in person. CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE VIPIN SANGHI S.RAVINDRA BHAT, J. (OPEN COURT)

The petitioner-Union of India seems to be aggrieved by the order of Central Administrative Tribunal (CAT) dated 29th September, 2013, whereby respondents/applicant before the CAT, was directed to be given the benefit of promotion to Scientist-D to Scientist-E under the Flexible Complementing Scheme (FCS) from the date he became eligible for it. The brief facts of the case are that the respondent-applicant was appointed as Scientific Officer on 24th April, 1992, and was later given the benefit of Flexible Complementing as Scientist 'C' with effect from 01st January, 1999. His case for consideration as Scientist 'D' ought to have been undertaken after completion of four years; however, it was actually done with effect from 29th December, 2003. He apparently represented to the

W.P. (C) 2357/2014 Page 1 petitioner-Union of India claiming that he was entitled to be given the benefit of Flexible Complementing and, therefore, he be given the grade of Scientist 'D' with effect from 01st January, 2003. However, his representations were unsuccessful, therefore, he approached the CAT vide Original Application being OA No. 1476/2009, which allowed his claim.

The petitioner-Union of India argues that the impugned order of the Tribunal is contrary to an Office Memorandum of 17th July, 2002, which in its material part, directs that, while implementing such schemes such as Flexible Complementing Scheme, retrospective effect ought not to be given to promotions. It is argued by the learned counsel for the petitioner that the CAT fell into error in relying upon a decision of the Supreme Court in Union of India vs. S.K. Murti in SLP (Civil) No.6864/2011, dated 02.05.2011. Learned counsel for the petitioner also submitted that the CAT could not have, in the circumstances of the case, overlooked a binding Circular, which the petitioner and its officials are bound to implement.

This Court has considered the submissions of both the parties. The Office Memorandum of 17th July, 2002 was apparently considered by a Division Bench of this Court in S.K. Murti vs. Union of India and Ors. in W.P.(C) No. 14263/2004, which was ultimately affirmed by the Supreme Court. In the Division Bench judgment, the Office Memorandum of 17th July, 2002 was extracted. It would be profitable to notice what the Division Bench had to say on the submission, with respect to the applicability of that very Office Memorandum. The discussion by the Division Bench in S.K. Murti (supra) is extracted below:

"5. Suffice would it be to state that the memorandum requires Flexible Complementing Scheme in situ promotions to be

W.P. (C) 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 suit 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 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."

In the above view of the matter, especially having regard to the fact that in S.K. Murti (supra) itself, the Supreme Court had occasion to deal with this contention with respect to the applicability of the Office Memorandum dated 17th July, 2002, we are of the opinion that the Tribunal

W.P. (C) 2357/2014 Page 3 cannot be faulted for having directed the grant of relief to the respondent- applicant from the date he became eligible.

The writ petition is consequently dismissed as meritless.

S. RAVINDRA BHAT (JUDGE)

VIPIN SANGHI (JUDGE) JULY 30, 2014 BG

W.P. (C) 2357/2014 Page 4