Union Of India And Anr vs Sobhana Bhaskaran And Ors
2016 Latest Caselaw 4906 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+        W.P.(C) 4516/2016
%                                                 Judgment dated 28 th July, 2016
         UNION OF INDIA AND ANR                  ..... Petitioners
                       Through : Mr.Kiriman Singh, CGSC, Mr.Waize
                                 Ali Noor and Mr.Pranav Agarwal,
                                 Advs.

                             versus

   SOBHANA BHASKARAN AND ORS             ..... Respondents

Through : Mr.R.K. Kapoor, Ms.Kheyali and Ms.Rekha Giri, Adv. for the respondents.

CORAM:

HON'BLE MR. JUSTICE G.S.SISTANI HON'BLE MR. JUSTICE I.S. MEHTA

G.S.SISTANI, J (ORAL)

1. Challenge in this writ petition is to the order dated 25.3.2015 passed by Central Administrative Tribunal (in short „the Tribunal‟) by which OA No.1421/2014 filed by the respondents herein was allowed. The petitioners also seeks to challenge the order dated 16.12.2015 passed by the Tribunal whereby four weeks‟ time was granted to the petitioners to report compliance. Challenge is also laid to the order dated 9.2.2016 passed by the Tribunal by which M.A.No.3170/2015 filed by the petitioners herein was dismissed as infructuous.

2. With the consent of counsel for the parties, we dispose of the present writ petition at the admission stage itself.

3. The brief facts of the case are that the respondents, who are working as a Scientist „E‟/‟D‟ with the petitioners, had approached the Tribunal by filing O.A.No.1421/2014, being aggrieved that they had been denied

uniform application of Flexible Complementing Scheme (in short „FCS‟), according to which in-situ promotions were to be granted to them on completion of minimum residency period subject to their fitness. According to the respondents, they were due for promotion in terms of the FCS much prior to the date from which they were entitled to such promotion under FCS on completion of minimum residency period. The respondents had made the following prayers in O.A.No.1421/2014:

"(a) Direct the respondents to consider and grant the benefit of FCS to the Applicants, with all consequential benefits along with arrears in the subsequent grades as well, and to suitably modify the dates of in situ promotions by antedating the same from the dates when the eligibility period was completed by the respective Applicants in the respective grades as per the details of the Applicants regarding their dates of eligibility to the various Grade, actual date of in situ promotion to the said Grade and the dates w.e.f. it should have been granted, as mentioned in the CHART annexed as Annexure A-6 with the OA;

(b) Direct the respondents to consider and grant the benefit of FCS to the Applicants, with all consequential benefits in the subsequent grades as well, and to suitably modify the dates of in situ promotion by antedating the same from the dates when the eligibility period was completed by the respective Applicants in the light of the orders of Hon'ble Supreme Court dated 02.05.2011 as passed in S.L.P. (Civil)-6864/2011 titled as U.O.I. vs. S.K.Murti in view of the provisions of Articles 141 and 144 of the Constitution of India, and the clarification given by the Ministry of law;

(c) Direct the respondents to maintain uniformity in application of minimum residency period in all the grades; and

(d) Any other relief/order which this Hon'ble Tribunal deems fit and proper in the facts and circumstances of the case may also be passed in favour of the applicants and against the respondents."

4. By the impugned order dated 25.3.2015, OA No.1421/2014, filed by the respondents herein, was allowed and the petitioners herein were directed to grant benefit of promotion to the Scientist „D‟ to „E‟ to Scientist „C‟ to „D‟ including respondents herein as per Flexible Complementing Scheme to the applicants from the due dates with all consequential benefits including pay fixation, payment of arrears and thereafter to consider them by the Assessment Board for in-situ promotion under the Modified Flexible Complementing Scheme for the current year. It was also directed that the directions with regard to pay fixation, payment of arrears and related benefits would be complied with within a period of two months from the date of receipt of the order.

5. Both the counsel for the parties have primarily relied upon upon the Office Memorandum No.AB-14017/37/2008-Estt.(RR) dated 10.9.2010, as per which the promotions are to be granted twice a year i.e. 1st January and 1st July. According to the petitioners, this Office Memorandum provides that their promotions cannot be awarded retrospectively.

6. Mr.Singh, learned counsel appearing on behalf of the petitioners, has strongly urged before this Court that the Tribunal has exceeded its jurisdiction by ignoring the Office Memorandum and the Rules by which the retrospective promotions cannot be granted. It is further submitted that the Tribunal has failed to consider Rule 6 Sub-Clause (7)(b) of the Department of Science and Technology Group „A‟ Gazetted Posts (Non-Ministerial, Scientific and Technical) Rules, 2004, i.e. the Recruitment Rules in terms of which the promotion from a retrospective date was impermissible. Mr.Singh also contends that the

Tribunal has completely ignored the strong reasons for delay in granting promotions. It is submitted that delay was caused on account of the directions issued by DoPT that the Recruitment Rules be amended. The process for amending the Recruitment Rules was initiated and a Committee to consider the revision of the Recruitment Rules was constituted on 3.3.2011 in accordance with Office Memorandum dated 10.9.2010. Simultaneously, the petitioners called upon the respondents to submit their Annual Work Reports (AWR) to enable the Department to fill up their ACRs. The respondents, vide communication dated 12.4.2012, were requested to submit their AWRs. Despite the fact that the AWRs were not forthcoming from the respondents to show their bona fides, petitioner no.1 on 16.7.2012 started to process the case of in-situ promotion under FCS through the modified as well as the old format of the Scheme so that the instructions contained in both the versions were complied with. Pursuant to the said direction, the cases of departmental scientists for in-situ promotion under FCS were processed. Reminders were also sent to the respondents from time to time to submit their AWRs. The respondents submitted their AWRs after November, 2012.

7. It is submitted by the counsel for the petitioners that in November, 2012, Internal Screening Committee was constituted to carry out the assessment with regard to the scientists (respondents herein). Subsequently, an Assessment Board was constituted on 21.2.2013, interviews were held on 30.3.2013 and orders for promotion were issued on 22.4.2013. Mr.Singh also points out that the Recruitment Rules were actually amended post the order of promotion.

8. It has been strongly urged before us by the learned counsel for the petitioners that the events, as detailed above, would show that the

petitioners were acting in a bona fide manner and they made every effort and endeavour to promote the respondents in the shortest possible time. It is further contended that the delay was also caused by the respondents as some of the applicants did not complete the forms, which led to the delay.

9. Mr.Singh also contends that the judgment rendered by a Division Bench of Delhi High Court in the case of S.K. Murthi v. Union of India & Ors., W.P.(C) 14263/2014, would not be applicable to the facts of the present case as in the aforesaid case, the Department alone was responsible for the delay while in the case at hand the Department was prevented from carrying out the promotions on account of directions issued by DoPT for amending the Recruitment Rules. It is contended that the delay caused is inter-departmental and further the delay caused on account of some of the respondents not completing the paper work.

10. Per contra, Mr.Kapoor, learned counsel appearing on behalf of the respondents, submits that the present case is fully covered by the decision rendered in the case of S.K. Murti (supra). Counsel further submits that the decision rendered in the case of S.K. Murti (supra) has been upheld by the Supreme Court of India vide its order dated 2.5.2011 in Union of India & Anr. v. S.K. Murti, SLP(Civil) 13133/2011. Counsel also submits that the Supreme Court of India had dismissed the Special Leave Petition filed by the petitioners herein vide order dated 2.5.2011 which is a reasoned order and it was not a case where the Special Leave Petition was dismissed in liminie. The aforesaid matter also pertains to scientists as also to FSC Scheme.

11. Mr.Kapoor also goes on to state that in fact the order dated 2.5.2011 passed by the Supreme Court in the Special Leave Petition is binding

on all future appointments as it is an order under Article 141 of the Constitution of India, which is evident upon reading the concluding para of the order of the Supreme Court, wherein the Apex Court has directed that similar order shall be passed for all similarly situated persons despite the fact that they have not approached the High Court questioning the order passed by the Tribunal. The purpose of issuing such a direction according to the Supreme Court was to avoid further litigation in the matter.

12. Relevant para of the order dated 2.5.2011 reads as under:

"Since the time fixed by the High Court for compliance of the direction given by it has already expired, we direct the petitioners to do the needful within four weeks from today. Similar order shall be passed for all similarly situated persons despite the fact that they may not have approached the High Court questioning the order passed by the Tribunal. This direction is being given to avoid further litigation in the matter."

13. Learned counsel for the respondents further submits that the place of scientists is their laboratory and not Courts. Counsel contends that despite a decision rendered by the Division Bench of the High Court, which was upheld by the Supreme Court of India, the respondents have again been dragged into unnecessary litigation. It is also contended that even after the directions issued by the Tribunal, the petitioners did not comply with the same, neither they challenged the same for a period of one year and in fact they made an application to the Tribunal, which was vague as the cause title of the said application suggests that time was sought for complying with the order but the prayer made therein was to seek further time for taking a decision regarding compliance of the order passed by the Tribunal.

14. Learned counsel for the respondents contends that after the decision of

the Supreme Court of India the petitioners herein should not have contested the matter before the Tribunal, however, despite the order of the Supreme Court of India not only was the matter contested before the Tribunal but even after the decision was rendered an MA was filed to further prolong the matter and the present writ petition has been filed by the petitioners after a period of one year.

15. It is also contended by counsel for the respondents that no delay was caused on account of the conduct of the respondents. It is further submitted that there was delay in completing the paper work by some of the respondents, but that was not the cause for delay as it would be evident from the fact that the delay was caused as the petitioners were interested in amending the Recruitment Rules despite the Office Memorandum and the Rules which provide that promotions are to take place on 1st January and 1st July. It is contended that there would be no bar for carrying out the promotions and simultaneously amending the Recruitment Rules as the amended Recruitment Rules would obviously be made applicable after the same were amended.

16. Mr.Kapoor, counsel for the respondents, also contends that as per the own showing of the petitioners, the Committee for carrying out the promotions was constituted in November, 2012, and the vacancies were available on 30.3.2013 and not filled up on the basis of the old Recruitment Rules.

17. We have heard learned counsel for the parties and also considered their rival submissions. The basic facts of the case are not in dispute as both the parties rely on the Office Memorandum dated 10.9.2010 and the Recruitment Rules. As per the petitioners, there was no wilful and deliberate delay on the part of the petitioners in filling up the vacancies, thus, the decision rendered in the case of S.K. Murthi (supra), relied

upon by the respondents, would not be applicable to the facts of the present case. It is also the submission of counsel for the petitioners that the judgment rendered in the case of S.K. Murthi (supra) was based on equitable grounds and in the present case the petitioners cannot be held solely responsible for the delay. Thus, the short question, which aris es for consideration, is as to whether the delay in carrying out the promotions was solely attributable to the petitioners and as to whether some of the respondents have attributed to the delay in carrying out the promotions.

18. It is worthwhile to note that in the present case the promotions were dependent on vacancies. It is for this reason that the Office Memorandum dated 2.5.2011 and the Recruitment Rules provide that promotions are to be carried out on two specific dates every year i.e. 1 st January and 1st July. The object of fixing the precise dates for promotions to be carried out twice a year would show the eagerness that promotions should be carried out without any delay. Thus, to achieve such an object, it is expected that all paper work and all other preparations for carrying out the promotions should be done in advance. Otherwise, the very purpose and objective of fixing specific dates would be defeated.

19. The arguments of Mr.Singh, no doubt, are attractive, but unfortunately the same cannot be accepted as both the dates i.e. 1st January and 1st July were to be followed strictly, the paper work had to be completed before that date and the Committee was to be constituted in advance to ensure that promotions were made on time.

20. The place of scientists certainly is not Court but laboratories. The Sixth Central Pay Commission has examined these schemes in detail and observed that various time-bound promotion schemes may be necessary

for scientific organizations as the morale of the scientists has to be kept high in order to keep them motivated and to stop the flight of talent from Government organizations involved in research and scientific activities. This was to discourage the brain drain of the scientists of this country.

21. In this case, the stand of the petitioners is that delay was caused on account of the fact that the petitioners, following the directions of the DoPT were carrying out the amendments to the Recruitment Rules. This argument is not borne out from the record as the promotions were in fact carried out as per the old Recruitment Rules and one day prior to the amendment.

22. In our view, the present case is fully covered by the decision rendered in the case of S.K. Murthi (supra), which has been upheld by the Supreme Court of India. Relevant portion of the order dated 5.10.2004 passed by the Delhi High Court reads as under:

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

23. It would also be useful to reproduce the observations made by the Supreme Court of India in the case of Union of India & Anr., (supra):

"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 as 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 petitioners 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 14.1.2004. 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 the impugned order does not suffer from any legal error warranting interference under Article 138 of the Constitution.

It is not in dispute that vacancies exited 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.

Since the time fixed by the High Court for compliance of the direction given by it has already expired, we direct the petitioners to do the needful within four weeks from today. Similar order shall be passed for all similarly situated persons despite the fact that they may not have approached the High Court questioning the order passed by the Tribunal. This direction is being given to avoid further litigation in the matter."

24. For the reasons stated above, we find no grounds to interfere in the order passed by the Tribunal. We are informed that the appointments have already taken place.

25. Writ petition stands dismissed. No costs.

G.S.SISTANI, J

I.S. MEHTA, J JULY 28, 2016 msr