Delhi High Court
Union Of India And Ors. vs Sandeep Kumar Swaroop And Ors. on 1 September, 2017
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION (CIVIL) No. 9413/2016
% Pronounced on:1st September, 2017
UNION OF INDIA AND ORS. ..... Petitioners
Through Mr. Ripu Daman Bhardwaj, CGSC
with
Mr. T.P. Singh, Mr. Sahaj Garg, Advocates.
versus
SANJAY KUMAR NAIK AND ORS. ..... Respondents
Through Mr. V.S. R. Krishna, Advocate.
WRIT PETITION (CIVIL) No. 1473/2017
UNION OF INDIA AND ORS. ..... Petitioners
Through Mr. Ripu Daman Bhardwaj and
Mr. T.P. Singh, Advocates.
Versus
SANDEEP KUMAR SWAROOP AND ORS...Respondents
Through Ms. Jyoti Singh, Sr. Advocate
with Mr. N. Raja, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE CHANDER SHEKHAR
W.P. (C) Nos. 9413/2016 & 1473/2017 Page 1 of 46
SANJIV KHANNA, J.
The question raised in the Writ Petition No. 9413/2016 and Writ
Petition No. 1473/2017 is whether the respondents (except Sandeep
Kumar Swaroop), who are working as Assistant Hydrogeologists, a
Group -B post in the Central Ground Water Board (CGWB for short),
are entitled to benefit of the Flexible Complementing Scheme (FCS).
Sandeep Kumar Swaroop, the first respondent in
WP(C)No.1473/2017, who is presently working as Scientist-B seeks
ante dating of his promotion under the FCS.
2. The respondents, in Writ Petition No. 9413/2016, 33 in number,
had filed OA No.4547/2014, which has been allowed by the Principal
Bench of the Central Administrative Tribunal (Tribunal, for short)
vide order dated 7th January, 2016, holding that the benefit of FCS
should be extended to the respondents in view of the order dated 3rd
March, 2011 of the Calcutta Bench of the Tribunal passed in OA
No.1004/2010, which stands affirmed by the Calcutta High Court vide
decision dated 8th October, 2012 in W.P.C.T. No.102/2012, Union of
India and Ors. Vs. Tarun Mishra and Ors. The Tribunal also
observed that the High Court of Andhra Pradesh, in its order dated
30.11.2010 passed in W.P. No. 24452/2010, Sri Vinay Vidyadhar &
Ors. v. Government of India & Ors., had approved the decision dated
18.04.1999 of the Hyderabad Bench of the Tribunal in OA No.
1032/1996 which was earlier upheld by the High Court vide order
dated 10.09.2008 passed in W.P. No. 22349/1999 ,Union of India
represented by Secretary, Ministry of Water Resources & Anr. v. V.
Sambasiva Rao. These decisions hold that the petitioners were under
an obligation vide O.M. dated 28.05.1986 as modified by O.M. dated
9.11.1998 to implement the FCS for Grade-B posts. SLP(C) CC No.
7347/2009 preferred against the decision of the Andhra Pradesh High
Court dated 10.09.2008 in V. Sambasiva Rao (supra) was dismissed
by the Supreme Court in limine, after condoning the delay, recording
that in the facts of the case they were not inclined to interfere. The
Tribunal, we would observe, has not independently referred to the
relevant provisions of different notifications and rules to examine the
contention whether FCS was applicable to Group B posts.
3. The respondents in WP(C)No.1473/2017, six in number, had
filed OA No.3761/2013. The first respondent had sought ante-dated
promotion as Scientist-B, whereas respondent Nos. 2 to 6 had sought
promotion to Scientist-B posts under the FCS from the date of
acquiring eligibility. The respondents had claimed parity with their
junior colleagues, i.e. Dr.Sudheer Kumar and Praveen Kumar
Gandharthi, who had filed O.A Nos.370 and 371/2010 before the
Hyderabad Bench of the Tribunal for upgradation to the level of
Scientist-B under the FCS.
4. OA No.3761/2013 has been allowed by the Tribunal by the
impugned order dated 1st August, 2016. This order is again not
detailed and does not examine the FCS on merits, albeit relies upon the
decisions of the Andhra Pradesh High Court in V.Sambasiva Rao
(supra) and Vinay Vidyadhar (supra) and holds that the petitioners
before us were obliged to implement FCS as revised by the DOP&T
vide Office Memorandum dated 9.11.1998, without giving any effect
to the cut-off date, viz. 9th November, 1998.
5. In order to fully grasp the controversy in issue, it is imperative
for us, at this stage, to discuss the FCS. Pursuant to recommendations
of the Third Pay Commission, the Department of Science and
Technology vide letter No. DST/MS/1(45)/82 dated 14/22.11.1983
had laid down guidelines introducing the FCS to ensure promotion of
Group-A Officers in Scientific Service from one grade to another after
the prescribed period of service. As per the guidelines, the FCS was
restricted to scientific posts in the grades of Rs. 700-1300, Rs. 1100-
1600 and Rs. 1500-2000. Department of Science and Technology vide
OM No. A-42014/2/86-A dated 28.05.1986 observed that some
scientific departments would induct officers in the scale of Rs. 650-
1200, who were outside the purview of the benefit granted by FCS.
Decision was taken to introduce and grant benefit of FCS to scientific
posts beginning with the pay scale of Rs. 650-1200, where this was the
direct recruitment grade, and to extend benefit of FCS to the scale of
Rs. 2500-3000. Stipulation of minimum residency of 5 years in each
grade for promotion was mandated.
6. The Central Ground Water Board (Scientific Group „A‟ Posts)
Recruitment Rules, 1987 („1987 Rules‟, for brevity) were enacted by
the Ministry of Water Resources vide G.S.R. 434 dated 18.05.1987
and notified in the Gazette of India on 06.06.1987. As per Rule 5,
existing posts in the CGWB were re-designated. The posts of Junior
Hydrogeologists, Junior Geophysicists, Chemists and Hydrogeologists
were re-designated as Scientist „B‟ in pay scale of Rs. 2200-4000 (pre-
revised scale of Rs. 700-1300), the lowest Group-A post as per the
1987 Rules. Rule 6 (3) of the 1987 Rules extended the benefit of the
FCS only to Group-A posts/grade, subject to certain conditions
specified therein. Thus, benefit of the OM No. A-42014/2/86-A dated
28.05.1986 i.e. FCS was not extended to officers in the pre-revised
pay scale of Rs. 650-1200 under the 1987 Rules. Assistant
Hydrogeologists in the pay scale of Rs. 650-1200 under the 1987
Rules were therefore denied benefit of FCS.
7. The 1987 Rules remained in-force till G.S.R. 333 was published
by the Ministry of Water Resources on 28.06.1995 enacting the
Central Ground Water Board (Scientific Group „A‟ Posts) Recruitment
Rules, 1995 („1995 Rules‟), which were notified in the Gazette of
India on 15.07.1995. As per Rule 7 (2) of the 1995 Rules, benefit of
FCS was restricted and granted to Group-A scientific posts starting in
the pre-revised pay scale of Rs. 700-1300, pari materia with the 1987
Rules. Thus, officers in the earlier pay scale of Rs. 650-1200 were left
out of the purview of FCS.
8. During the interregnum, Communication No. 21-6/91-GW/1537
dated 10th August, 1994 was addressed by the Deputy Secretary to the
Government of India to the Union Public Serve Commission (UPSC)
in connection with consideration of amendments to the 1987 Rules
and enactment of new rules. The relevant portion of this letter reads:-
"i) Even though the proposal for inclusion of Group „B‟
officers in the different scientific streams in the scale of
Rs. 2000-3500 in the Flexible Complementing Scheme
was under consideration, a decision was taken with the
approval of Secretary (WR) to exclude them as inclusion
of Group „B‟ would have delay further the whole
exercise in view of review of Flexible Complementing
Scheme."
9. The promulgation of the 1987 and 1995 Rules gave rise to the
controversy and claims by Group B officers. OA No. 1032/1996, V.
Sambasiva Rao & Ors. v. UOI & Anr, was filed before the
Hyderabad Bench of the Tribunal challenging the 1987 Rules and
1995 Rules, insofar as the Rules had excluded Group „B‟, Assistant
Chemist/ Assistant Hydrogeologist, from the purview of FCS evolved
by the Department of Science and Technology in 1983 and notified in
1986 pursuant to the recommendation of the Third Pay Commission,
and thereby shutting out the prospect of time bound promotion as
Junior Chemist/Hydrogeologist (Scientist „B‟) and above. The
challenge was notwithstanding that the 1995 Rules did postulate
promotion of Assistant Chemist/Assistant Hydrogeologists as Junior
Chemists/ Hydrogeologists.
10. Pending the decision in OA 1032/1996, the Ministry of Water
Resources published G.S.R. 55 amending the 1995 Rules on
03.02.1998 which was notified on 07.03.1998. Pertinently, no changes
were made with regard to the applicability of the FCS.
11. Thereafter, on 09.11.1998 the Department of Personnel and
Training issued OM No. 2/41/97-PIC with instructions and modifying
the existing FCS in furtherance of the recommendations of the Fifth
Central Pay Commission. Paragraphs 3 and 5 to 7 of the OM dated
09.11.1998 are relevant and have been extracted below:-
"3. The recommendations of the Pay Commission that
the existing disparities in the operation of Flexible
Complementing Scheme in various scientific and
technical departments on the matter of designation of
posts, the number of pay scales and the residency period
should be removed and there should be uniformity in this
regard has been accepted. Accordingly all the posts
covered under the Flexible Complementing Scheme
shall carry the following uniform scales of pay,
designations and the minimum residency period linked
to performance:-
Scales of Pay Designation Minimum
Residency
period linked
to performance
(a) Rs. 8000-13500 Scientist B 3 Years
(b) Rs. 10000-15200 Scientist C 4 Years
(c) Rs. 12000-16500 Scientist D 4 Years
(d) Rs. 14300-18300 Scientist E 5 Years
(e) Rs. 16400-20000 Scientist F 5 Years
(f) Rs. 18400-22400 Scientist G -
In order to give immediate effect to the decision
contained in this para, an umbrella Notification has
been issued vide G.S.R. No. 660(E) dated 9.11.1998
XXX
5. It has further been decided that in order to extend the
benefit of in-situ promotions under the Flexible
Complementing Scheme to other Scientific Organisations
that are demanding the extension of FCS in their case, the
administrative Ministry of such institutions shall satisfy itself
that such institutions are scientific and technical institutions
and the officers are scientists holding scientific posts and are
involved in scientific and technical activities as defined in
the Annexure I to this office Memorandum and make its
recommendations to the Department of Science and
Technology. On receipt of such a request the Department of
Science and Technology shall set up a committee, including
the representatives of the Department of Personnel and
Training and of the Department of Expenditure as well as
eminent scientists relevant to the discipline, for examining
the proposal referred by the administrative Ministry
concerned. A final decision on the proposal of an
administrative Ministry for extension of FCS to other
scientific organisations shall be taken based on the
recommendations of this committee. Since it is not
necessary that all the pay scales under the Flexible
Complementing Scheme should be applicable in all the
scientific organisations, as the size of the organisation may
not justify introduction of the entire group of scales, the
committee, while making its recommendation, would take a
specific view as to the number of scales that should be
operated in the organisation as well as the appropriate
residency period for ensuring an even pace of promotion.
However, the progression under Flexible Complementing
Scheme will only be as per scales indicated in para 3 of this
office Memorandum.
6. It is requested that all the Ministries/Departments, where
the Flexible Complementing Scheme is in operation, may
initiate action for review of the provisions of the Flexible
Complementing Scheme and amend the provisions of the
relevant recruitment rules so that the scheme is brought in
conformity with the decisions/guidelines being conveyed
vide this office Memorandum. Results of the review may
also be conveyed to the Department of Science and
Technology, the nodal department for operation of the
Flexible Complementing Scheme. Action for extension of
the Flexible Complementing Scheme to other scientific
organisations, where the same is not in operation at present,
may be taken in accordance with the decision contained in
para 5 of this office Memorandum.
7. The relevant provisions of Department of Science &
Technology Office Memorandum No. A. 42014/2/86-
Admin.1(A) dated the 28th May, 1986 stand amended to
the extent the provisions of this Office Memorandum are
at variance with the provisions of the said Office
Memorandum."
12. OA 1032/1996 V. Sambasiva Rao & Ors. v. UOI & Anr.
was partly allowed by the Hyderabad bench of the Tribunal vide the
order dated 19.04.1999 directing that the 1995 Rules should be
reviewed to bring Group „B‟ posts in the pre-revised scale of Rs. 650-
1200 within the purview so as to entitle these posts to benefit of FCS.
13. The Union of India preferred W.P. (C) No. 22349/1999 before
the Andhra Pradesh High Court which was dismissed vide the
judgment dated 10.09.2008. We shall be referring to the exact
reasoning and nature of the directions given subsequently. The Union
then preferred SLP (C) CC No. 7347/2009, UOI & Anr. v. V.
Sambasiva Rao & Ors., which was dismissed by the Supreme Court
in limine by the order dated 31.08.2009. The order of the Andhra
Pradesh High Court in W.P. (C.) No. 22349/1999 upholding the
Tribunal‟s decision in OA 1032/1996 gained finality.
14. In wake of the decision in V. Sambasiva Rao (supra), three
other similarly placed officers, viz. V. Vidyadhar, Dr. Sudheer Kumar
and Praveen Kumar Gandharthi who were working with the CGWB as
Assistant Chemists/Assistant Hydrogeologists filed OA Nos. 370 and
371 of 2010, titled Sri V. Vidyadhar & Ors. v. Government of India,
Ministry of Water Resources, rep. by its Secretary & Ors. . These
OAs were dismissed by the common order dated 30.08.2010 passed by
the Hyderabad Bench of the Tribunal. However, W.P. No. 24452 of
2010 preferred against the Tribunal‟s order was allowed by a Division
Bench of the Andhra Pradesh High Court by order dated 30.11.2010,
which held:-
"Therefore, this Writ Petition is disposed of in terms of
and in accordance with the order of this Court dated
10.09.2008 rendered in Writ Petition No. 22349 of 1999.
No Costs."
15. Thus, the Andhra Pradesh High Court whilst considering W.P.
No. 24452 of 2010 felt that the controversy was squarely covered by
their order dated 10.09.2008 passed in V. Sambasiva Rao (supra). The
High Court overturned the decision of the Tribunal dated 30.08.2010
and granted the petitioners therein the relief as granted to the similarly
placed officers in V. Sambasiva Rao (supra).
16. Thereafter, on 05.12.2012 Review W.P. M.P. No. 28475 of
2012 preferred by the Government against the order dated 30.11.2010
was dismissed with the observation that the order dated 30.11.2010
had not been implemented and the applicants before the Tribunal (V.
Vidyadhar, Dr. Sudheer Kumar and Praveen Kumar Gandharthi) had
filed Contempt Case No. 1339 of 2011 before the Andhra Pradesh
High Court. The Government had filed a counter in CC No.
1339/2011 stating that the order dated 30.11.2010 had been
implemented vis-à-vis V. Vidyadhar but Dr. Sudheer Kumar and
Praveen Kumar Gandharthi had been appointed as Asst.
Hydrogeologists (Group B Officers) after 9.11.1998 and therefore the
FCS was not applicable to them. The High Court, dismissing Review
W.P. M.P. No. 28475 of 2012 vide order dated 5.12.2012, observed:-
" We have perused the OM dated 2.5.1986 as amended
by OM dated 9.11.1998. There is no cut-off date for
implementing the FCS, but however as per the said OM,
officers are entitled for the scheme subject to fulfillment
of the conditions stipulated therein. Therefore, we do not
see any error on the face of the record or any illegality
in the impugned order passed by this Court. The review
petition is without any merit and is liable to be
dismissed.
Accordingly, the review petition is dismissed"
(emphasis supplied)
17. The Government thereafter preferred SLP (Civil) CC No.
5329/2013 against the order dated 5.12.2012. The Special Leave
Petition was dismissed on the technical ground of inordinate delay of
694 days vide the order dated 01.07.2013.
18. Upon dismissal of the SLP on 01.07.2013, the order passed by
the High Court in W.P. No. 24452 of 2010 dated 30.11.2010 became
final and binding. Accordingly, Dr. Sudheer Kumar and Praveen
Kumar Gandharthi claimed and sought promotion to the post of
Scientist „B‟ in terms of the said order.
19. On the 12th and the 16th of September, 2013, the respondents in
WP(C) No.1473/2017 made a representation to the Chairman, Central
Ground Water Board submitting that the Board of Assessment‟s
proposal being sent to the UPSC included Dr. Sudheer Kumar and
Praveen Kumar Gandharthi. The respondents had asserted that they
being senior to said officers were entitled to identical benefit and
inclusion in the Board of Assessment‟s proposal. Thereafter, the
respondents in WP(C)No. 1473/2017 filed OA No. 3761/2013 before
the Principal Bench of the Tribunal which has passed the impugned
order dated 1st August,2016.
20. From the aforesaid it is quite clear that the department of
Science and Technology vide OM dated 28th May, 1986 had extended
FCS to other Scientific and Technical Departments with Financial
Procedure, Personnel Policy, Procurement Management System and
Technical Supports Service (Civil Work). This OM also noticed that
FCS was then restricted to the pre-revised grades of Rs.700 - 1300/-,
Rs.1100 - 1600/- and Rs.1500 - 2000/- with a provision that total
number of posts in the grade of 1500 - 2000/- would not be more than
30 % of the total number of persons in the three grades. The OM
records that having regard to the fact that in some scientific
departments there was induction of scientists in the scale of Rs.650 -
1200/-, it was decided to introduce FCS beginning with the scale of
Rs.650 - 1200/- where there was direct recruitment to the said grade.
In addition it was decided to extend FCS Scheme up to the scale of
Rs.2500 - 3000/-, without there being any restriction as regards
percentage and there would be full flexibility in all grades up to
Rs.2500 - 3000/- with merit and record of research being the only
criteria. The minimum residency of 5 years in each grade would be
required for promotion under the FCS.
21. However, the situation underwent a change in view of the
recommendations made by the 5th Pay Commission, who had
recommended introduction of the Modified FCS to Group-A posts in
all scientific Departments including the Department of Atomic
Energy, Department of Space and DRDO. With reference to these
three organizations, the Cabinet did not agree with the Pay
Commission and the Department of Atomic Energy, Department of
Space and DRDO were allowed to continue with the merit based
promotion scheme covering Group A, B and C scientists and technical
personnel. This is recorded in the detailed note F.O.2/41/97-PIC. This
note had recommended that the FCS existing on the said date in the
various departments could continue. It was noted that the Government
had left to the Secretaries of the Scientific Ministries /Department to
review and classify the posts and personnel, who would not be
covered. The thrust being that there should not be major change in the
FCS Scheme, but at the same time personnel who were not otherwise
eligible to be covered by FCS, i.e. non-scientific personnel should be
excluded. It was also recorded that there was demand of the
Engineers from the CPWD, CGWB etc. for extension of FCS to those
who were not involved in pursuit of scientific knowledge, but only in
its application.
22. This was followed by the Office Memorandum No.2/41/97/PIC
dated 9.11.1998, relevant portion of which has been quoted above. It
was held that the Pay Commission had observed on the existing
disparities in the operation of the FCS in various scientific and
technical departments in the matter of designation of posts, number of
pay scales and residency period and that these should be removed and
there should be uniformity in this regard. The suggestions were
accepted. Accordingly, all posts covered under the FCS would carry
the stipulated uniform scales of pay, designations and minimum
residency period linked to performance, namely:-
Scales of pay Designation Minimum Residency
period linked to
performance
(a) Rs. 8000- Scientist B 3 years.
13500
(b) Rs. 10000- Scientist C 4 years.
15200
(c) Rs. 12000- Scientist D 4 years.
16500
(d) Rs. 14300- Scientist E 5 years.
18300
(e) Rs. 16400- Scientist F 5 years.
20000
(f) Rs. 18400- Scientist G
22400
In order to give immediate effect to the decision, an umbrella
Notification vide G.S.R. No. 660 (E) dated 9.11.1998 was issued.
23. A reading of the aforesaid paragraphs of the revised FCS
resonates that there was a marked shift from the earlier FCS Scheme,
because a restricted and limited benefit was to be given and it was to
only apply to scientists and technologists, holding the specified
scientific posts in Scientific and Technical Departments and engaged
in scientific activities and service. However, exception was made in
the case of department of Atomic Energy, Department of Space and
DRDO where their own schemes were applicable. Paragraph 2 clause
(a) had stipulated that the FCS shall not be applicable where criteria
specified in the Office Memorandum were not fully met. The grades
to be covered by the FCS were also indicated in paragraph 3 and the
lowest post indicated was that of Scientist-B. Group „B‟ posts were
not included in paragraph 3. It was also stated that to give the
decision taken in paragraph 3 immediate effect, an umbrella
notification was issued vide G.S.R. No.660(E) dated 9th November,
1998. This is clear from paragraphs 5, 6 and 7 of the OM dated 9 th
November, 1998, reproduced above. Office Memorandum No. A.
42014/2/86-Admn.1(A) dated the 28th May, 1986 of the Department of
Science and Technology stood amended to the extent the provisions of
this office Memorandum were at variance with the provisions of the
said office Memorandum. Paragraphs 5 and 6 of the Office
Memorandum dated 9.11. 1998 had directed that cases of other
scientific organizations who were demanding extension of FCS would
be taken up with the administrative Ministry of the said
organisation/institution and, upon being satisfied that such institutions
were scientific and technical institutions and the officers were
scientists holding scientific posts, the administrative Ministry would
make a representation to the Department of Science and Technology,
which would set up a committee to examine the proposal forwarded
by the administrative Ministry. It was also observed that it was not
necessary that all pay scales under FCS should be applicable in all
scientific organizations, as the size of the organizations might not
justify introduction of entire group of scales. The Ministries/
departments were required to initiate action for review of the
provisions of FCS and ensure that they were brought in conformity
with the decision / guidelines mentioned in the office Memorandum
dated 9.11.1998.
24. Thus, the directions given in paragraphs 5 and 6 of the Office
Memorandum dated 9.11.1998, required a further exercise by the
different ministries. The effect Office Memorandum dated 9.11.1998
was not that the organizations or posts which were covered by Office
Memorandum dated 28th May, 1986 would continue to get the said
benefit. This would be clearly contrary to the language of not only
paragraph 6 but would also defeat what is stated in paragraphs 5 and 7
of the Office Memorandum dated 9.11.1998. Appropriate in this
regard would be Annexures-I and II to the office Memorandum dated
9.11.1998, which had prescribed different criterion and point scales
for promotion from one grade to the other. Minimum percentage for
eligibility was prescribed in a point scale. Obviously, Annexure-II
would not apply to Group „B‟ posts for it did not relate to the said
grade and did not prescribe selection or assessment criteria on the 10
point scale.
25. The aforesaid Office Memorandum was followed by umbrella
notification G.S.R. 660 (E) published in the gazette of India issued in
exercise of power conferred under Article 309 of the Constitution by
the President to come into force on the date of publication in the
official gazette. Paragraphs 2 and 3 of the gazette notification G.S.R.
660 (E) dated 9.11.1998 are relevant and read as under:-
"2. Application:
These rules shall apply to all the Scientific and Technical Group
"A" (Gazetted) posts in the Department of Science and
Technology, the Department of Scientific and Industrial
Research, the Ministry of Non-conventional Energy Sources,
the Department of Ocean Development, the Ministry of
Environment, Forests and Wild Life, the Department of Bio-
Technology and the Department of Electronics governed by the
Recruitment Rules/Instructions specified in the Schedule
annexed to these rules.
3. In - situ promotion under Flexible Complementing
Scheme:
Notwithstanding anything contained in the Recruitment Rules
or instructions specified in the Schedule annexed to these rules,
the following provisions shall apply in the matter of in-situ
promotions for Scientific and Technical Group "A"(Gazetted)
posts in the Department of Science and Technology, the
Department of Scientific and Industrial Research, the Ministry
of Non-Conventional Energy Source, the Department of Ocean
Development, the Ministry of Environment, Forests and Wild
Life, the Department of bio-Technology and the Department of
Electronics under the Flexible Complementing Scheme,
namely:-
(a) The scales of pay to which the Flexible Complementing
Scheme shall apply the minimum residency period linked to
performance for in-situ promotion to the next higher grade and
the uniform designations of the Scientific and technical posts
covered by the Flexible Complementing Scheme shall be as
given in the Table below:-
TABLE
Designation Scale of Pay Minimum
Residency period
linked to
(1) (2) performance
Scientist B Rs. 8000-275-13,500 3 years,
Scientist C Rs. 10,000-325-15,200 4 years,
Scientist D Rs. 12,000-375-16,500 4 years,
Scientist E Rs. 14,300-400-18,300 5 years,
Scientist F Rs. 16,400-450-20,000 5 years,
Scientist G Rs.18,400-500-22,400
(b) No person other than a person possessing the essential
educational qualification of at least a Master‟s Degree in
Natural/Agricultural Sciences or a Bachelor‟s Degree in
Engineering or Technology or Medicine, shall be eligible for in-
situ promotion under the Flexible Complementing Scheme.
THE SCHEDULE
(See Rules 2 & 3)
Sl. Name of Short title of the Recruitment
No. Ministry/Department Rules/Instructions
1. Ministry of Science The Department of Science and
and Technology Technology Group „A‟ Gazetted
(Department of Posts (Non-Ministerial, Scientific
Science and and Technical) Rules, 1984.
Technology and
Department of
Scientific and
Industrial Research)
2. Department of Bio- The Department of Bio-
Technology Technology Group „A‟ Gazetted
Posts ( Non- Ministerial, Scientific
and Technical ) Recruitment Rules,
1989.
3. Department of Personnel Policy and Practicess for
Electronics and the Group „A‟ Scientific and Technical
National Informatics Officers/Posts in the Department of
Centre, Planning Electronics/ Electronics
Commission Commission office Memorandum
No. A- 12018/1/81 PP dated the
11th August, 1981, as amended
from time to time.
4. Ministry of The Department of Environment,
Environment, Forests Forests and Wild Life Scientific
and Wild Life Group „A‟ Posts Rules, 1987.
5. Ministry of Non- The Department of Non-
conventional Energy Conventional Energy Sources
Sources Group „A‟ Gazetted Posts (non-
ministerial, Scientific and
Technical Rules, 1988.
6. Department of Ocean The Department of Ocean
Development Development Recruitment (Group
„A‟ posts) Rules 1996.
26. This notification was issued in exercise of powers conferred
under the proviso to Article 309 of the Constitution and, therefore,
restricts the benefits of the said rules to all the Scientific and Technical
Group „A‟ (Gazetted) posts as specified. The Schedule specifies the
list of the Ministries as well as the recruitment rules relating to Group
'A' posts to which the said O.M. would be applicable.
27. During the course of arguments the respondents had drawn our
attention to the recommendations of the 5th Pay Commission. We feel
that these are not required to be considered or delved into, as these
were considered and thereafter notification dated 9.11.1998 under
Article 309 have been enacted and enforced.
28. We have also gone through the judgment of the Andhra Pradesh
High Court in V.Sambasiva Rao (supra). The said judgment refers to
the 1987 and 1995 Rules wherein Group „B‟ Scientists who were in
the pre-revised pay scale of Rs.650 - 1200 were not included.
Thereafter reference was made to a communication dated 10 th August,
1994 of the Deputy Secretary of the Government of India addressed to
the Union Public Service Commission for amendment of the 1987
Rules with a clarification that the decision to exclude Group „B‟ posts
from the FCS was taken to avoid any delay in the whole exercise.
Thus, the Division Bench observed that Group „B‟ posts were
excluded to avoid delay in the implementation of the FCS and not
because they were not eligible. Thereafter reference was made to
Office Memorandum No.2/41/97- PIC dated 9.11.1998 with specific
reference to the assertions made in paragraph 5 thereof. This decision
does not note or take into account the gazette notification dated 9 th
November, 1998 i.e. GSR 660 (E) issued under the proviso to Article
309 of the Constitution. Thereafter the judgment records that the
Office Memorandum dated 2nd May (sic. 28th May), 1986 was
amended by the Office Memorandum dated 9.11.1998 and thus the
Tribunal ought not to have directed the authorities to amend the 1995
Rules, which had statutory force. At the same time the Division
Bench went on to observe that the Office Memoranda dated 28 th May,
1986 and 9th November, 1998 were Presidential Orders which had
statutory force and therefore, the authorities were under an obligation
to implement them and to take further action to implement the FCS.
Relevant portion of the judgment dated 10.9.2008 is reproduced
below:-
"13. It is pertinent to state that 1987 Rules were repealed
and 1995 Rules have come into effect. Though the FCS was
sought to be implemented in respect of in situ promotions of
departmental officers in Scientist-B grade to 'C' and 'D'
grades, the scientific officers who were in the pay scale of
Rs.650- 1200, were not included in 1995 Rules. In fact, the
communication No.21-6/91-GW/1537 dated 10-8-1994 of
Deputy Secretary to Government of India, had been
addressed to the Union Public Service Commission in
connection with amendment to Central Ground Water Board
(Scientific Group 'A' Posts) Recruitment Rules, 1987
wherein certain clarifications were made and the relevant
one is as under:
"i) Even though the proposal for inclusion of Group 'B'
officers in the different scientific streams in the scale of
Rs.2000-3500 in the Flexible Complementing Scheme was
under consideration, a decision was taken with the approval
of Secretary (WR) to exclude them as inclusion of Group 'B'
would have delay further the whole exercise in view of
review of Flexible Complementing Scheme."
14. Government of India, Ministry of Personnel, Public
Grievances and Pensions, vide its Office Memorandum
No.2/41/97-IPC dated 09-11-1998 had issued further
instructions and the relevant portion reads as under:-
"It is requested that all the Ministries /
Departments, where the Flexible Complementing
Scheme is in operation, may initiate action for
review of the provisions of the Flexible
Complementing Scheme and amend the provisions
of the relevant recruitment rules so that the scheme
is brought in conformity with the decisions /
guidelines being conveyed vide this Office
Memorandum. Results of the review may also be
conveyed to the Department of Science and
Technology, the nodal department for operation of
the Flexible Complementing Scheme. Action for
extension of the Flexible Complementing Scheme
to other scientific organizations, where the same is
not in operation at present, may be taken in
accordance with the decision contained in para - 5
of this Office Memorandum.
7. The relevant provisions of Department of
Science and Technology Office Memorandum
No.A-42014/2/86-Admn.I (A) dated 02-05-1986
[sic. 28-05-1986] stand amended to the extent the
provisions of this Office Memorandum are at
variance with the provisions of the said Office
Memorandum."
15. In the circumstances, the Tribunal ought not to
have directed the petitioners to revise 1995 Rules so
as to include the benefit of FCS for the Group -B
posts. However, having regard to the Presidential
Order, which has statutory force, pursuant to which
the Department of Science and Technology issued
O.M. dated 02-05-1986 [sic. 28-05-1986] and the
consequent O.M. dated 09-11-1998, we are of the
considered view that the petitioner is under obligation
to implement O.M. dated 02-05-1986 [sic. 28-05-
1986], as modified by O.M. 09-11-1998 and take
further action to implement the FCS in respect of
respondents - applicants."
SLP(C) CC No. 7347/2009 against this decision was dismissed
by the Supreme Court in limine observing that in the facts and
circumstances of the case the Court was not inclined to interfere.
29. The Andhra Pradesh High Court in W.P. No. 24452/2010, Sri
Vinay Vidyadhar & Ors. v. Government of India & Ors., had quoted
paragraph 14 of the judgment passed in V.Sambasiva Rao (supra), and
also noted that the SLP against the order in V.Sambasiva Rao (supra)
was dismissed. The court in Vinay Vidyadhar (supra) held that the
authorities were required to comply with the order passed in
V.Sambasiva Rao (supra). However, confusion really arose when a
review application was filed in the case of Vinay Vidyadhar (supra)
by the Ministry of Water Resources, New Delhi, in which it was held
as under:
"This Court disposed of the said writ petition by order
dated 30.11.2010 in terms of and in accordance with the
order passed by this Court in W.P.No 22349 of 1999 dated
10.9.2008 whereunder this Court while dismissing the writ
petition filed by the Government of India, held that having
regard to the Presidential Order, which has statutory force,
pursuant to which the Department of Science and
Technology issued Office Memorandum (OM) dated
2.5.1986 and the consequent O.M. dated 9.11.1998, we are
of the considered view that the Government is under
obligation to implement O.M. dated 2.5.1986 as modified by
O.M. dated 9.11.1998 and take further action to implement
the FCS in respect of respondents-applicants. As the said
orders were not implemented the writ petitioners filed
contempt case in C. C. No. 1339 of 2011. Government filed
counter in the said contempt case stating that they have
decided to implement the orders insofar as 1 st petitioner is
concerned and insofar as petitioners 2 and 3 are concerned,
they were appointed as Assistant Hydro Geologists i.e. Gr. B
Officers after 9.11.1998 and therefore the FCS is not
applicable to them.
Learned counsel for the review petitioners submitted that
earlier Writ Petition No.22349 of 1998 filed by (10) persons
have joined the department prior to 9.11.1998 and therefore
the said OMs are applicable to them only, whereas
respondents 2 and 3 herein have joined the department after
9.11.1998 and therefore they are not covered by FCS. He
further contended that this Court disposed of W.P.No. 24452
of 2010 without considering the facts and merits of the case
and since the respondents 2 and 3 have joined after
9.11.1998, they are not eligible to be considered for FCS as
per the OMs.
We have perused the OM dated 2.5.1986 as amended by
OM dated 9.11.1998. There is no cut-off date for
implementing the FCS, but however as per the said OM,
officers are entitled for the scheme subject to fulfilment of
the conditions stipulated therein. Therefore, we do not see
any error on the face of the record or any illegality in the
impugned order passed by this Court. The review petition is
without any merit and is liable to be dismissed.
Accordingly, the review petition is dismissed."
30. The authorities had thereafter preferred an SLP(Civil)
No.5329/2013 against the order in the review application dated 5 th
December, 2012, which was dismissed on the ground of inordinate
delay of 694 days.
31. Similar issue had arisen before the Calcutta Bench of the
Central Administrative Tribunal in OA No.1004/2010, Tarun Mishra
& Ors. Vs. Union of India. Aggrieved by the decision of the
Tribunal, the Union of India had filed W.P.C.T.No.102/2012 before
the Calcutta High Court. The writ petition was dismissed observing
that the Tribunal, Calcutta Bench had followed the decision of the
Andhra Pradesh High Court which was confirmed by the Supreme
Court.
32. It would be relevant to also refer to another order dated 7th
December, 2015 passed by the Division Bench of the Andhra Pradesh
High Court in contempt case [CC No.1380/2014], V.Vinay Vidyadhar
& Ors. Vs. Secretary, Government of India, Ministry of Water
Resources and Anr. This order is fairly detailed and refers to both the
Office Memoranda dated 28th May, 1986 and 9th November, 1998 and
also notices the decision in Civil Contempt Petitions filed earlier. The
Contempt Petition was disposed of observing that the question was not
free from doubt for paragraph 7 of the Office Memorandum dated 9 th
November, 1998, if independently taken into consideration, it might
appear that the whole or entire office Memorandum dated 28 th May,
1996 was amended. To avoid any confusion, we would reproduce the
relevant paragraphs of the said order which are as under:-
"The answer to this question is not free from doubt. If
paragraph No.7 of Office Memorandum dated 09.11.1998 is
independently taken into account and consideration, it might
appear as if the whole contents of Office Memorandum
dated 09.11.1998 should be treated as an intended
amendment to what is contained in Office Memorandum
dated 28.05.1986. If that were to be the intention of the
Government of India, there would not have been any
necessity for them to refer to the notification G.S.R.No.660
(E) dated 09.11.1998 in paragraph No.3 of this Office
Memorandum dated 09.11.1998, in as much as Office
Memorandum dated 28.05.1986 covers both Group-A and
Group-B Scientific officers and Technologists.
In view of the contents of paragraph No.3 of Office
Memorandum dated 09.11.1998 specifically adverting to
G.S.R.No.660 (E) dated 09.11.1998, the view canvassed by
Sri K.M.Nataraj, learned Assistant Solicitor General, that the
contents of paragraph No.3 of the Office Memorandum
dated 09.11.1998 will be applicable to Group-A servants
alone cannot be brushed aside lightly. It all depends upon the
construction which is liable to be placed on the contents of
Office Memorandum dated 09.11.1998. That would be a
part of substantial adjudication of the lis itself. That having
not been done by any Court, it will not be fair for us to
construe that the action of granting in-situ promotions to the
petitioners as Scientists B, C and D, as the case may be,
with effect from specified dates as a deliberate and willful
violation of the orders passed by this Court amounting to
contemptuous conduct. Further, while exercising
jurisdiction under Article 215 of our Constitution, the
adjudicatory power and jurisdiction available, a substantial
one at that, cannot be telescoped. When once the respondents
have passed an order on 30.09.2015 according benefits to the
petitioner Nos.2 and 3 also as per the eligibility as
determined by the respondents, we feel that there was a
faithful compliance at long last with the directions issued by
this Court in W.P.No.24452 of 2010. In view of the possible
confusion prevailing in the minds of the respondents though
the delay that occurred till 30.09.2015 for implementing the
judgment is an unreasonable period consumed but yet that
alone should not lead to an inevitable conclusion that the
respondents have acted with deliberate intent to violate the
orders of this Court, for them to be penalized.
We are, therefore, of the opinion that by 30.09.2015, the
judgment rendered by this Court in W.P.No.24452 of 2010
on 30.11.2010 and the review order dated 05.12.2012 stood
implemented.
Hence, we dismiss this contempt case duly discharging the
notice issued earlier. Accordingly, the contempt case is
dismissed. No costs.
However, we hope and trust that the Government of India
would not take such a long time for implementing the writs
issued by this Court henceforth."
The last portion of the said order refers to the directions issued
by the Andhra Pradesh High Court to comply with the paragraph 5 of
the Office Memorandum dated 9th November, 1998, i.e. to decide
whether or not to implement FCS in the case of Group „B‟ posts. We
agree with these observations.
33. We do find difficulty in accepting the reasoning given in
paragraphs 14 and 15 of the judgment of the Andhra Pradesh High
Court in V. Sambasiva Rao (supra) . O.M. dated 9th November, 1998
was also issued in the same manner and under the same power and
authority as O.M. dated 28th May, 1986. The latter O.M. has been
issued under executive instructions in terms of the power conferred
under Article 77 of the Constitution.
34. It is not possible to accept that the O.M. dated 28th May, 1986
would apply even if the O.M. dated 9th November, 1998 withdraws
and rescinds the former notification in respect of Group-B services. To
this extent the O.M dated 28th May, 1986 was at variance and was
amended/modified. We have quoted paragraph 7 of the O.M. dated 9th
November, 1998 in paragraph 11, above. We have also noted one
distinguishing factor, i.e. that the respondents in W.P. No.
22349/1999, V. Sambasiva Rao (supra), were employees of the
Central Ground Water Board who had been appointed in Group-B
prior to 9th November, 1998. The respondents in the present case were
appointed after 9th November, 1998. As noticed above, the SLP
preferred against the decision in V. Sambasiva Rao (supra), was
dismissed in limine by the Supreme Court vide order dated 10.09.2008
specifically observing that in the facts and circumstances of the case
the Court was not inclined to interfere with the impugned order. The
said dismissal would not constitute a binding ratio or precedent
declared by the Supreme Court. We have also examined the judgment
of the Calcutta High Court in W.P. C.T No. 102/2012, Tarun Mishra
(supra). This decision makes reference to the Andhra Pradesh High
Court decision in W.P. No. 24339/1999 which was confirmed by
SLP(C) CC No. 7347/2009, and dismissed the contention raised by the
petitioner-Authorities therein that the judgment of the Supreme Court
in (2007) 14 SCC 556, UOI & Ors. v. S.K. Saigal & Ors. dated
15.11.2006 was not considered. This contention was rejected
observing that the Andhra Pradesh order was confirmed much later in
2011. We do not find that this decision lays down any specific ratio
decidendi.
35. One more important aspect which arises for consideration is the
contention of the respondents that a number of Group „B‟ officers
have been granted benefit of FCS. The petitioners were asked to
ascertain the said fact and as per the affidavit placed on record they
have accepted that 8 Group „B‟ officers appointed on or after 9 th
November, 1998 had been granted benefit of FCS. After the judgment
in W.P.(C) 1473/2017 was reserved on 21st February, 2017, the
respondents had filed CM No.17941/2017 for placing on record
additional documents. The respondents had relied upon Office Order
dated 1st May, 2017 by which in-situ promotion under the FCS was
granted to 8 other officers pursuant to the contempt petition filed
before the Tribunal. The petitioners were asked to file response and
have filed reply affidavit accepting the said position. It is however,
stated that promotion to these 8 officers was granted in compliance
with the order dated 26th April, 2014 passed in OA No.1182/2012 and
the order passed in Contempt Petition No. 279/2015 thereafter.
36. Reading of the said order dated 26th April, 2014 would indicate
that the petitioners herein were directed to consider the claim of all
applicants therein for grant of consequential benefits arising from
issuance of revised seniority list where same benefits had been
extended to persons junior to them. Thus promotional scales under the
FCS were directed to be granted in all cases where juniors had been
granted the said benefits. We may note that the seniority list for Group
„B‟ posts had undergone a change pursuant to the said litigation in OA
No. 1182/2012. The stand taken by the authorities in the reply
affidavit that there was an inadvertent lapse by not noticing the gazette
notification GSR 660(E) dated 9th November, 1998 and consequently
wrong legal opinion was tendered. Therefore, the order dated 26 th
April, 2014 passed by the Tribunal was never challenged.
37. In these circumstances we had heard the arguments which were
concluded and judgment was reserved on 21st July, 2017. As per the
respondents 19 officers who were inducted and joined Group „B‟
grade on or after 9th November, 1998 were granted benefit of the FCS.
As per the petitioner there are 16 such officers. The question which
arises for consideration is whether in the aforesaid circumstances, we
should or should not interfere with the impugned order of the
Tribunal. The respondents highlight the contradiction and
inconsistency which would arise if benefit of FCS is granted to some
and not others. The earlier decisions even if debatable, as per the
Respondents, should be applied universally as judgment in rem
deciding the controversy.
38. Sections 40 to 44 of the Evidence Act deal with relevancy of
judgments of Courts of justice. Section 41 stipulates that a final
judgment, order or decree of a competent Court in exercise of
jurisdiction of probate, matrimonial, admiralty or insolvency
jurisdiction, which confers upon or takes away from any person legal
character, or which declares that any person is entitled to such legal
character or to any specific thing as against any specified person, is
relevant when the existence of such legal character or title of such
person to such thing is relevant. The section thus pontificates when a
judgment, order or decree is a conclusive proof. Strictly, the
judgments specified in Section 41 are judgments in rem.
39. Section 42 states that judgments, orders or decrees, other than
those mentioned in Section 41, are relevant if they relate to matters of
public nature relevant to the enquiry, but they are not conclusive proof
of what they are saying. The first provision, i.e. Section 40, states that
any previous judgment to bar second suit or trial is relevant when the
Court decides whether it should take cognizance of such suit or hold
such trial.
40. Section 43 states that the judgments, orders or decrees, other
than those mentioned under Sections 40, 41 and 42 are irrelevant
unless existence of such judgment, order or decree is a fact in issue or
is relevant under some other provisions of the Act. Section 44 deals
with fraud or collusion with which we are not concerned.
41. The aforesaid provisions bring out the distinction between what
is strictly judgment in rem, which is covered and falls within the four
corners of Section 41, and other decisions which may be relevant
under Section 40 or 42. Section 40, as noticed above, deals with the
principle of res judicata, which in legal jurisprudence is different from
the principle of precedents or stare decisis. As a common law
country, doctrine of precedents is applied and applicable in India.
Decisions of the Supreme Court and the High Court are binding
precedents, which means they have to be followed or else
distinguished. The principle of res judicata applies to the decision,
while the principle of precedents operates as to the rule of law
involved. In this sense, it binds everyone including those who come
before the Court in other cases. This principle has a binding effect, and
therefore operates in rem, i.e. it applies to other cases.
42. Judgments in personam are original judgments between parties
to the case of contract, tort or criminal, whereas judgments in rem
affect a person‟s status, but as noticed above, judgments in rem can be
classified into two classes; one, which is conclusive against all the
world, and the other, which is not conclusive, though admissible and
treated as a precedent in other proceedings. The latter decisions, not
being conclusive, can be reversed (see Hill Vs. Clifford, [1907] 2 Ch.
236 at page 244).
43. The aforesaid principle finds recognition in service law in K.
Ajit Babu & Ors. Vs. Union of India & Ors. (1997) 6 SCC 473,
which dealt with the benefits and advantages of adherence to the
principle of precedents. This judgment dealt with the question of a
decision of the Central Administrative Tribunal on certain principles
of law determining seniority of employees which had affected the
employees who were not parties to the lis, and the course of action
available to them. It was observed, consistency, certainty and
uniformity in the form of judicial decisions were benefits arising from
the doctrine of precedent and, therefore, the Tribunal would be bound
by earlier judgments which act as precedents. Third parties, who are
adversely affected, would be persons feeling aggrieved and in terms of
provisions of Section 22 of the Administrative Tribunals Act, 1985
could seek review by re-opening the case. If the Tribunal dissents
from the view expressed earlier, the matter can be referred to a
larger/full bench. Of course, against the rejection of the said
application for review, the aggrieved party can file a writ petition.
44. K. Ajit Babu (supra), therefore, dealt with a case where a
judgment had wider repercussions and had the effect of a judgment in
rem in the second sense. (see Wazir Singh & Ors. Vs. State of
Haryana and Ors. 1995 (suppl.) 3 SCC 697, wherein with reference
to litigation by the State of Haryana, it was observed that multiplicity
of litigation should be avoided. When there is an earlier decision, it
should be made applicable to non-parties as well, as the principle of
law was settled).
45. Recently, the Supreme Court in State of Uttar Pradesh and
Ors. Vs. Arvind Kumar Srivastava & Ors., (2015) 1 SCC 347 had
examined this issue on the question of judgments in service law which
lay down a principle and, therefore, are treated as judgments in rem in
the second sense. Several decisions on both sides were referred to and
the following legal principles were set out:-
"22. The legal principles which emerge from the reading of
the aforesaid judgments, cited both by the appellants as well
as the respondents, can be summed up as under.
22.1. The normal rule is that when a particular set of
employees is given relief by the court, all other identically
situated persons need to be treated alike by extending that
benefit. Not doing so would amount to discrimination and
would be violative of Article 14 of the Constitution of India.
This principle needs to be applied in service matters more
emphatically as the service jurisprudence evolved by this
Court from time to time postulates that all similarly situated
persons should be treated similarly. Therefore, the normal
rule would be that merely because other similarly situated
persons did not approach the Court earlier, they are not to be
treated differently.
22.2. However, this principle is subject to well-recognised
exceptions in the form of laches and delays as well as
acquiescence. Those persons who did not challenge the
wrongful action in their cases and acquiesced into the same
and woke up after long delay only because of the reason that
their counterparts who had approached the court earlier in
time succeeded in their efforts, then such employees cannot
claim that the benefit of the judgment rendered in the case of
similarly situated persons be extended to them. They would
be treated as fence-sitters and laches and delays, and/or the
acquiescence, would be a valid ground to dismiss their
claim.
22.3. However, this exception may not apply in those cases
where the judgment pronounced by the court was judgment
in rem with intention to give benefit to all similarly situated
persons, whether they approached the court or not. With
such a pronouncement the obligation is cast upon the
authorities to itself extend the benefit thereof to all similarly
situated persons. Such a situation can occur when the
subject-matter of the decision touches upon the policy
matters, like scheme of regularisation and the like (see K.C.
Sharma v. Union of India [K.C. Sharma v. Union of India,
(1997) 6 SCC 721 : 1998 SCC (L&S) 226] ). On the other
hand, if the judgment of the court was in personam holding
that benefit of the said judgment shall accrue to the parties
before the court and such an intention is stated expressly in
the judgment or it can be impliedly found out from the tenor
and language of the judgment, those who want to get the
benefit of the said judgment extended to them shall have to
satisfy that their petition does not suffer from either laches
and delays or acquiescence."
A careful reading of the aforesaid principles reveals that the
principle of in rem in the second sense is not absolute. It is preferable
to follow the said principle so that there is no discrimination or
violation of Article 14 in service matters for all similarly situated
persons should be treated alike and not differently. However, delay
and laches as well as acquiescence can be a ground to deny benefit to
fence sitters. Those who do not approach the Court in a timely and
prompt manner can be denied "equal treatment". Thus, it will be right
to hold that doctrine of in rem in the second sense is not unconditional
or unimpeachable. However, this exception would not apply where the
earlier judgment pronounced by the Court is with the intent to give
benefit to all similarly situated persons, whether they had approached
the Court or not. Benefit should not be extended when the said intent
is not there and the judgment expressly or impliedly states that the
benefit of the judgment would be extended to those, who had sought
to enforce their rights and their petitions were not stale on account of
delay and laches or acquiescence.
46. Similar issues have also arisen under taxation laws as it has
happened that the tax authorities do not file appeals in similar matters
or earlier years. The consensus, it appears, is that the tax or the
revenue authorities should not be barred or prohibited from preferring
appeal where there is just cause for doing so, it is in public interest or
where divergent views have been expressed by the Tribunal or the
High Courts. [see C.K. Gangadharan & Anr. Vs. Commissioner of
Income Tax, Cochin, (2008) 8 SCC 739, Commissioner of Central
Excise, Bangalore Vs. Bal Pharma Ltd., Bangalore and Ors. (2011)
2 SCC 620 and Catholic Syrian Bank Ltd. Vs. Commissioner of
Income Tax (2012) 3 SCC 784].
47. In view of the aforesaid discussion we would allow the present
writ petitions and set aside the directions given in the impugned orders
dated 7th January, 2016 in OA No. 4547/2014 and 1st August, 2016
passed in OA No. 3761/2013. However, at the same time, it has to be
directed that in order to ensure compliance with paragraphs 5 and 6 of
the OM dated 9th November, 1998 the petitioners would undertake an
exercise as mandated to decide, whether or not benefit of FCS should
be extended and granted to Group „B‟ employees of CGWB appointed
on or after 9th November, 1998. While carrying out the said exercise
the petitioners would keep in mind the fact that 16 or 19 such Group-
B officers have been given benefit of FCS as the petitioners did not
challenge the orders passed by the Tribunal and there are judgments of
the two High Courts which have attained finality. They would ensure
that there is no disparity or unequal treatment especially in cases
where juniors have been granted benefit of FCS. This would not be
acceptable, even if we have held that FCS was not immediately or per
se applicable to Group-B employees, and had required a considered
examination. Noticeably, there has been considerable and unexplained
delay. Normally, we would not have fixed any time limit and only
directed the petitioners to conduct the aforesaid exercise
expeditiously. However the matter has remained pending since 9th
November, 1998 and has created litigation all over the country in spite
of the mandate given in paragraphs 5 and 6 of the OM dated
9.11.1998. In such circumstances, we direct the petitioners to
undertake the said exercise within six months from the date of receipt
of a copy of this order. The Secretary of the Ministries and the head of
the CGWB would ensure that the task and exercise is completed
within the said period and no application for extension of time is
moved. We also observe that if any application for extension of time is
made, the Court would take a strict view of the matter and may even
impose costs, if justified.
48. With the aforesaid directions, the writ petitions are disposed of
without any order as to costs.
(SANJIV KHANNA)
JUDGE
(CHANDER SHEKHAR)
JUDGE
September 1St , 2017
ssn
