Judgment:
G. George Paracken, J.
1. Applicants have filed this Original Application seeking the following main reliefs:-
(a).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 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 date of in situ promotions by antedating the same from the dates when the eligibility period was completed by the respective Applicants in the light of the orders of Honble Supreme Court dated 02.05.2011 as passed in SLP (Civil) No.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 clarifications given by the Ministry of Law; and
(c ). Direct the Respondents to maintain uniformity in application of minimum residency period in all the grades. 2. According to the learned counsel for the Applicants, the case of the Applicants is squarely covered by the judgment of the Apex Court in the case of Special Leave to Appeal (Civil) No.13133/2011 - Union of India Vs. S.K. Murti decided on 02.05.2011. The operative part of the said order reads as under:-
This petition is directed against order dated 5.10.2010 passed by the Division Bench of the Delhi High Court whereby the writ petition filed by the respondent against the order passed by the Principal Bench of the Central Administrative Tribunal (for short, `the Tribunal') dismissing the original application filed by him for issue of a direction to the petitioners herein to promote him under the Flexible Complementing Scheme (FCS) with effect from the date of eligibility was allowed.
We have heard Smt. Indira Sawhney, learned counsel for the petitioners and Mr. Jitendra Mohan Sharma, learned counsel for the respondent, who has entered on caveat and carefully perused the record.
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 was 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. 826/203 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 136 of the Constitution.
It is not in dispute that vacancies existed 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.
3. The learned counsel for the Applicants has also submitted that this Tribunal following the dictum in the aforesaid judgment of the Supreme Court allowed OA No. 1111/2012 Shri Vinay Kumar Vs. The Secretary, Department of Electronics and Information Technology and Others decided on 27.09.2013. The operative part of the said order reads as under:-
2. Facts of the case are that applicant has been working with the respondents and was promoted as Scientist-C under the Flexible Complementing Scheme (FCE) on 01.01.1999. He became due for promotion as Scientist-D on 01.01.2003 and thereafter the Scientist-E on 01.01.2007. However, the respondents have promoted him not from the due date but from a date much after the same. The applicant is seeking ante dating of his promotion to Scientist-D as well as Scientist-E. He has sought this relief, mainly, on the ground that Honble Supreme Court in the matter of UOI and Anr. Vs. S.K. Murti on 02.05.2011 had upheld the judgment of the Honble High Court of Delhi in Writ Petition No. 14263/2004 dated 05.10.2010 in which the Honble High Court of Delhi has ruled as follows:-
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.
No costs.
1. The applicant has sought grant of the same benefits to him as have been given to Sh. S.K. Murti vide the aforesaid Court orders.
2. The respondents have filed their reply in which they have not disputed the basic facts regarding eligibility of the applicant for promotion to Scientist-D and Scientist-E from 01.01.2003 and 01.01.2007 respectively. However, they have contended that the promotion under the FCE Scheme as per DoPandT guidelines is to be given only after the Assessment Board has suitably assessed the officer and found him fit and thereafter the recommendations of Assessment Board have been approved by the Competent Authority. They have relied on the DoPandT O.M. No. AB-14017/32/2002-Estt.(RR) dated 17.07.2002, which stipulates as under:-
œPromotions are made effective from a prospective date after the competent authority has approved the same. This is the general principal followed in promotions and this principle is applicable in the case in situ promotions under FCS as well?.
Further, they have stated that when the case of the applicant was referred to DoPandT they advised that the benefit of the judgment in the case of S.K. Murti (supra) have been given only to the applicants of the case therein and have not been extended to others. On this basis, the respondents had rejected the representation of the applicant vide the impugned order dated 09.02.2012.
3. We have heard both sides and have perused the material on record.
4. In our opinion, the case of the applicant is squarely covered by the judgment of the Honble High Court of Delhi as upheld by the Honble Supreme Court in the case of S.K. Murti (supra). The stand taken by the respondents, therefore, is unjustified. Honble Supreme Court in the case of Inderpal Yadav Vs. UOI, 1985(2) SCC 648 have ruled as under:-
œTherefore, those who could not come to the court need not be at a comparative disadvantage to those who rushed in here. If they are otherwise similarly situated, they are entitled to similar treatment, if not by anyone else at the hands of this court?.
5. Accordingly, we allow this O.A. and direct the respondents to consider granting benefit of promotion to Scientist-D and Scientist-E under the FCE Scheme to the applicant from the due date with all consequential benefits of pay fixation and payment of arrears as directed by Honble Supreme Court in the case of S.K. Murti (supra). This will be done within a period of six weeks from the date of receipt of a certified copy of this order. No costs.
4. Respondents have filed their reply opposing the OA filed by the Applicants.
5. We have head the learned counsel for the parties. We agree with the learned counsel for the Applicants that this case is squarely covered by the judgment of the Apex Court in the case of S.K. Murti (supra) as followed by this Tribunal in OA No. 1111/2012 - Vinay Kumar (supra). We, therefore, allow this OA and direct the Respondents to consider granting benefit of promotion as Scientist-D and Scientist-E under the FCE Scheme to the Applicants from the due date with all consequential benefits of pay fixation and payment of arrears as directed by Honble Supreme Court in the case of S.K. Murti (supra). The aforesaid direction shall be implemented within a period of six weeks from the date of receipt of a certified copy of this order.
6. There shall be no order as to costs.