Union of India v. Vinay Kumar

Delhi High Court · 18 Aug 2008 · 2023:DHC:9134-DB

V. Kameswar Rao; Anoop Kumar Mendiratta

W.P.(C) 12922/2023

2023:DHC:9134-DB

administrative appeal_dismissed Significant

AI Summary

The Delhi High Court upheld the Tribunal's order allowing deputation period to count towards residency for promotion under the Flexible Complementary Scheme, clarifying the applicability of the 2013 Rules excluding deputationists from FCS eligibility.

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W.P.(C) 12922/2023
HIGH COURT OF DELHI

JUDGMENT

delivered on: December 19, 2023

W.P.(C) 12922/2023, CM APPL. 50874/2023
UNION OF INDIA..... Petitioner
Through: Mr. Bhagvan Swarup Shukla, CGSC with Mr. Sarvan Kumar, Mr. Saksham Sethi, Mr. Shailendra Tripathi and
Mr. Abhinav Shukla, Advs.

versus

VINAY KUMAR..... Respondent
Through: Mr. L. R. Khatana, Adv.

CORAM:

HON'BLE MR. JUSTICE V. KAMESWAR RAO
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA

JUDGMENT

V. KAMESWAR RAO, J

1. The challenge in this writ petition is to an order dated March 10, 2023, passed by the Central Administrative Tribunal, Principal Bench, New Delhi (‘Tribunal’, for short) in Original Application No.4423/2015 (‘OA’, for short) whereby the Tribunal has allowed the OA filed by the respondent herein by stating as under:

“5. As we have already taken a view in O.P. Gaba’s case (supra) this matter is no more res integra. The respondents are directed to grant notional benefit to the applicant. However, the monetary benefits should be restricted to the

petitioner to the extent of three years prior to the filing of the O.A. This exercise shall be completed within a period of 120 days from the date of receipt of a certified copy of this order. With the above direction, the OA stands disposed of. There shall be no order as to costs.”

2. The facts as noted from the record are; the respondent while working as Senior Research Officer in Central Soil and Materials Research Station, Ministry of Water Resources in the scale of ₹10,000 – ₹15,200 (since July 30, 2001), joined the petitioner-Department of Scientific and Industrial Research (‘DSIR’, for short) as Scientist ‘D’ on August 28, 2007, on deputation. He was absorbed as Scientist ‘D’ w.e.f. August 28, 2009 in pay band-3 of ₹15600-39100 with grade pay of ₹7600/-.

3. The respondent had submitted representations dated February 07, 2011, April 07, 2011, November 09, 2011 and September 13, 2012 to the petitioner for counting the period of deputation prior to his absorption towards residency in the grade of Scientist ‘D’ for the purpose of promotion to Scientist ‘E’. The said representations were rejected with the approval of Secretary, DSIR on February 21, 2012 stating that minimum residency period will be counted from the date of absorption and the case of the respondent will be processed on completion of minimum residency period of four years as Scientist ‘D’ on August 27, 2013, for promotion to the next higher grade. Therefore, his case was considered on the cutoff date of January 01, 2014 and he was promoted to the grade of Scientist ‘E’ under Flexible Complementary Scheme (‘FCS’, for short) w.e.f. January 15, 2014.

4. The respondent filed OA No. 4423/2015 before the Tribunal challenging the O.M. dated December 02, 2014. It was his contention that the period spent on deputation as Scientist ‘D’ prior to his absorption should be counted towards minimum residency period and accordingly his case for promotion to the grade of Scientist ‘E’ under FCS be considered as on cutoff date July 1, 2011.

5. It may be stated there that the respondent has since been promoted as Scientist ‘F’ w.e.f. January 27, 2020.

6. We have already reproduced the operative part of the impugned order of the Tribunal wherefrom it can be seen that the OA of the respondent was allowed on the strength of the judgment of a coordinate bench of this Court in the case of Union of India & Anr. v. O.P. Gaba, W.P.(C) 4751/2011, decided on July 11, 2011.

7. The submission of Mr. Bhagvan Swarup Shukla, learned CGSC appearing for the petitioner is primarily by drawing our attention to the Rules called Department of Science and Technology Group ‘A’ Gazetted posts (Non-Ministerial, Scientific and Technical) Rules, 2013 (‘Rules of 2013’, hereinafter) to contend that the promotion of Scientists shall be governed by Schedule III of the said Rules, which stipulates that promotion to Scientist ‘E’ shall be on attaining the eligibility of four years as Scientist ‘D’, in the pay band of ₹15600- 39100 with the grade pay of ₹7600.

8. He has also highlighted the fact that there shall be no retrospective promotion under FCS. The promotions under FCS shall be effective from the date the same is approved by the Appointing Authority. According to him, in view of this provision, the period spent on deputation by the respondent between 2007 and 2009 cannot be treated as residency period for promotion to the post of Scientist ‘E’.

9. In support of his submission, he has also relied upon the opinion of the Department of Personnel and Training (‘DoP&T’, for short) at page 141 of the paper book to contend that it is the service of the officer, from the date when he was absorbed which shall be considered for calculating eligibility for promotion and not the service before that.

10. He has also submitted that the judgment in the case of O.P. Gaba (supra) as relied upon by the Tribunal has no applicability to the facts of this case, more particularly the provisions of Schedule III. According to him, the said judgment pertains to an officer who was working in the Forest Survey of India, Dehradun and as such was not governed by the Rules and must be construed to mean that the same is in the facts of that particular case and has no applicability insofar as this case is concerned.

11. On the other hand, Mr. L. R. Khatana, learned counsel for the respondent has heavily relied upon the judgment in the case of O.P. Gaba (supra) to contend that in the said judgment, this Court was concerned with the same Rules with which we are concerned in this matter and this Court has clearly held that the deputation period before absorption shall be counted for the purpose of counting the residency period for promotion to the next higher post. He states that the present petition is totally misconceived and untenable and is liable to be dismissed.

12. Having heard the learned counsel for the parties, the short issue which arises for consideration is whether the period put in by the respondent during his deputation before absorption can be counted for the purpose of calculating residency period relevant for promotion to the next higher post of Scientist ‘E’. The answer to the said question has to be seen in the context of FCS and Schedule-III to the Rules. A reading of the FCS contemplates that the same contemplates in situ promotion scheme for Scientists, for which criteria will be proven merit and record of research. It contemplates that a Scientist appointed on deputation or contract shall not be eligible for promotion. Only regular scientists of the Department of Science and Technology shall be eligible for FCS promotion. It also states that there is no retrospective promotion. The promotion under FCS shall be effective from the date the same is approved by the appointing authority. There is no dispute that for the purpose of promotion to Scientist ‘E’, the eligibility / residency period is four years on the post of Scientist ‘D’.

13. The judgment of this Court in O.P. Gaba (supra) on which reliance has been placed by the Tribunal and Mr. Khatana was challenging the decision of the Tribunal in respect of a person who had come on deputation from Forest Survey of India to the Department of Science and Technology on April 7, 2004 as Scientist ‘C’ in the scale of Rs.10,000 – Rs. 15,000/-. In the parent department, i.e., Forest Survey of India, he was designated as Assistant Director. He was absorbed in Department of Science and Technology on permanent basis w.e.f. August 18, 2008. Under the Rules being followed by the DST, Scientist ‘C’ is eligible for promotion to the grade of Scientist ‘D’ under the FCS after four years of regular service in the grade of Scientist ‘C’. After his absorption in the DST, he made a representation for promotion to the grade of Scientist ‘D’, as he had completed four years of residency period in the grade of Scientist ‘C’ in the year 2008. The representation of O.P. Gaba was rejected on June 8, 2010.

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14. Before the Tribunal reliance was placed on the judgment in the case of K. Madhavan and Anr. v. Union of India and Ors. 1987 (4) SCC 566 for the argument that period of deputation would count towards regular service. The Tribunal accepted the plea referring to paragraph 10 of the judgment in K. Madhavan (supra), wherein the following has been stated:

“10. The 1975 Rules which are relevant for the purpose do not explain what is meant by the expression “on a regular basis”. The expression has created some ambiguity in the eligibility clause giving rise to this controversy. There can be no doubt that when a person is appointed to a post against a permanent vacancy on probation, his appointment is on a regular basis, but when a person is appointed to a post on a purely temporary or on an ad hoc basis, the appointment is not on a regular basis. The expression “on a regular basis” in the 1975 Rules cannot, in our opinion, be interpreted to mean as on absorption in the CBI as SP. The general principle is that in the absence of any specific provision to the contrary, the length of service from the date of appointment to a post should be taken into consideration for the purpose of either seniority in that post or eligibility for the higher post. As no explanation has been given in the 1975 Rules of the said expression, we do not think it desirable to deviate from the established principle of computing the length of service for the purpose of seniority or eligibility for the higher post from the date of appointment. In our view, therefore, the expression “on a regular basis” would mean the appointment to the post on a regular basis in contradistinction to appointment on ad hoc or stopgap or

purely temporary basis. Respondent 5, in our opinion, satisfied the eligibility test of the 1975 Rules for consideration for the post of DIG. But, it is not disputed by the parties that the petitioners and Respondent 5 have, by the lapse of time during the pendency of this litigation, become eligible for appointment to the posts of DIG. Indeed, they are holding the posts of DIG, may be on ad hoc basis, under the interim orders of this Court and there is no chance of their being reverted to the next lower post of SP. The question, therefore, boils down to the seniority of the petitioners, vis-àvis Respondent 5 in the post of DIG. That again will depend upon the decision on the question as to the seniority of the petitioners and Respondent 5 in the post of SP.”

15. The Tribunal in paragraphs 5 and 6 of the order has allowed the OA in favour of O.P. Gaba by stating as under:

“5. There is no force in the arguments of the Respondents. The issue regarding the counting of service during deputation as regular service has been decided by the Honourable Supreme Court in K Madhavan (supra) and subsequently followed by this Tribunal. The argument that the Applicant's scale of pay in the parent Department would be considered, while considering his eligibility for promotion and not the actual scale of pay, which he was drawing while on deputation is absolutely specious and does not have the sanction of the rules or guidelines. Admittedly, the Applicant was in the scale of Rs. 10,000-15, 200, the scale of Scientist 'C‟, while on deputation. He was working as Scientist 'C‟, while on deputation. It would be anomalous in the extreme that while counting his service on deputation as Scientist 'C‟ as regular service, his scale of pay should be considered to be Rs.8000-13,500, which was his scale in the parent Department in the post of Assistant Director. This argument is rejected as untenable. 6. In view of the above discussion, we are of the considered opinion that the impugned order dated 08.06.2010 is illegal. The impugned order is accordingly quashed and set aside.

The Respondents are directed to consider the Applicant for in situ promotion under FCS and promote him, if found fit, from the date he completed four years of residency after coming on deputation in the year 2004. Since the Applicant has not been promoted because of the fault of the Respondents, he would be eligible for all consequential benefits including arrears of pay from the date of his promotion and also count his eligibility for promotion to the grade of Scientist 'E' from that date in the year 2008. These directions would be complied with within four months of receipt of a certified copy of this order. No costs.”

16. A co-ordinate bench of this Court, in a writ petition filed by the Union of India challenging the decision, agreed with the conclusion reached by the Tribunal and dismissed the writ petition. This Court while deciding the issue has in paragraphs 3 to 7 has held as under:

“3. The question raised before the Tribunal was whether or not the respondent was entitled to in-situ promotion under the Flexible Complementing Scheme (FCS) as per the provisions of the Department of Science and Technology Group „A‟ Gazetted Posts (Non-ministerial, Scientific and Technical) Rules, 2004. The relevant portion of Rule 6(2) reads as under:-

4. Rule 6(1)(b),(c) & (d) are also relevant and read as under:-

“6. In-situ promotion under Flexible

Complementing Scheme (FCS):-

(1) (a) xxxx

(b) There will be complete interchangeability without any restriction except that the total number of posts of Scientist „B‟, Scientist „C‟, Scientist „D‟, Scientist „E‟, Scientist „F‟ and Scientist „G‟ put together should not exceed the total sanctioned strength.

(c) The Department of Science and Technology will be free to vary the number of posts in the different scales so as to ensure promotion of an officer from junior scale to senior scale for in-situ promotion under Flexible Complementing Scheme (FCS) and proven merit and record of research will be the only criteria.

(d) In-situ promotions under Flexible Complementing Scheme (FCS) will be personal to the officer concerned and would not result in specific vacancy in the lower grade on that account. The post being currently held by the concerned officer will be upgraded automatically and personal to him for the duration of his stay in the in-situ promotion post. The post will revert to the original level once the officer vacates the higher post by superannuation, resignation or otherwise.”

5. A reading of the aforesaid sub-clauses shows that in-situ promotion is personal to the officer concerned and does not result in a specific vacancy in the lower grade. The in-situ promotions are given after an officer has completed a minimum residency period linked to performance in the prescribed scale of pay. For Scientist „C‟, the prescribed pay-scale is 10000-15200/- and the minimum residency period linked to performance is four years. It is not possible to agree with the contention of the petitioner that the period between 7th July, 2004 to 18th August, 2008, when the respondent was on deputation should be ignored and treated as non-existing under Rule 6(2). There is no such stipulation in the rules. It is not the case of the petitioner that respondent was taken on deputation contrary to the rules. The deputation and absorption thereafter is one of the prescribed modes for recruitment for Scientist „C‟ as per Rule 5.

6. O.M. dated 27th March, 2001, as quoted above deals with seniority. It stipulates that for the purpose of inter-se seniority between officers, the date of absorption is the criteria which is determinative. We are not concerned with the inter-se seniority in the present case. The O.M. cannot be applied for the purpose of computing minimum residency period linked to performance stipulated in Rule 6(2). Further, as noticed above, in-situ promotion in FCS are personal to the officer concerned and they cannot and do not affect other officers. The aforesaid view taken by us is in consonance and finds resonance in the decision dated 11th October, 2006 in Writ Petition (Civil) No. 14097-100/2005, Dr. Rajendra Kumar & Ors. vs. Govt. of NCT of Delhi. In the said case, the Division Bench was examining whether the petitioners therein who had joined as Senior Scientific Officers on deputation were eligible and had completed five years of service for being considered for promotion as Assistant Directors. A question arose whether the period of service on deputation as Senior Scientific Officer before permanent absorption should be counted for qualifying service. The Division Bench held as under:-

“14. Ms. Avnish Ahlawat on behalf of the respondent sought to justify the decision of the Tribunal. She submitted that there were no recruitment rules, which would have enabled these appointments on regular basis. Some of these petitioners have been working in posts lower than in the rank of Senior Scientific Officers, such as, Senior Scientific Inspector, Sub-Inspector etc. prior to being taken on deputation as Senior Scientific Officers. Her submission is that in respect of

petitioners, who are working at posts lower than that of Senior Scientific Officers, their service in the parent department are not to be taken into consideration. The above plea to our mind is of no avail. The question to be considered is whether the services rendered as Senior Scientific Officer on deputation with the respondent can be regarded as regular service in the grade/scale. Ms. Ahlawat submits that recruitment rules were framed in 1998 in consultation with UPSC. Accordingly, these petitioners were permanently absorbed on 29th April, 2002 as Senior Scientific Officers. Their service for purpose of promotion to the post of Assistant Director, accordingly, has to be counted from the date of absorption when their appointment stood regularized. She further submitted that these persons could not be considered as regular appointees as they had joined the respondent on deputation and held their lien in other posts held by them prior to their absorption. We have already noted that the appointment of petitioners on deputation was admittedly after following due procedure. The non existence of statutory rules, at the relevant time, cannot convert the service rendered by them as irregular and result in their service being disregarded for being counted for the purposes of eligibility condition. As noticed earlier, each of the petitioners possess the requisite academic qualifications and have the requisite experience to meet the eligibility condition.

15. We find merit in the petitioners‟ submission, as noted above. Petitioners in view of the decision in K. Madhavan & Others Vs. Union of India (Supra) and K.B. Rajoria vs. Union of India & Ors. (Supra) are entitled to have the period of service on deputation with the respondent counted towards eligibility period for the post of Assistant Director.

16. The Tribunal had also relied on the factor that the period of deputation should not be counted towards regular service because the petitioners during the period of deputation and prior to permanent absorption had a lien on their posts in the parent department. Without going into the question as to whether lien was retained or not, we find the same to be contrary to the dictum, laid down in Rudra Kumar Sain and Others vs. Union of India and others reported at (2000) 8 SCC 25. In the cited case, the Supreme Court noted the contention that the conclusion arrived at by the Committee of the High Court that a person promoted to higher judicial service under Rules 16 and 17 of the Rules to a post against which some other person had a lien, would ipso facto make such appointment ad hoc/fortuitous/stop gap, is contrary to the conclusion reached by the Supreme Court in O.P. Singla Vs. Union of India reported at (1984) 4 SCC 450 regarding continuous length of service.

17. From the foregoing, it would follow that simply because a lien was retained by the earlier incumbent to the post, the subsequent appointment to the post which is otherwise made in accordance with the rules would not be rendered ad hoc/fortuitous/stop gap because of the lien. Hence similar plea regarding lien as is sought to be raised would also not be available to the respondent.”

7. For the aforesaid reasoning, we do not find any merit in the present writ petition and the same is dismissed.”

17. A perusal of the judgment would show that the co-ordinate bench had only referred to Rule 6(2) which contemplates minimum residency period and Rule 6(1)(b), 6(1)(c) and 6 (1)(d) which relate to in situ promotion. There is a finding of this Court in paragraph 5 of the judgment rejecting the submissions made on behalf of the Union of India that the period between July 7, 2004 and August 18, 2008 when O.P. Gaba was on deputation need to be ignored and treated as nonexisting under Rule 6(2) by stating that there is no such stipulation in the Rules. With due respect, the Coordinate Bench of this Court in O.P. Gaba has not considered Schedule-III of the Rules which we have reproduced above which contemplates that the Scientist appointed on deputation or contract shall not be eligible for FCS and only regular Scientist in the Department of Science and Technology shall be eligible for FCS.

18. It is important to state here that the Court in O.P. Gaba (supra) was concerned with the Department of Science and Technology Group- A Gazetted (Non-Ministerial, Scientific and Technical) Rules, 2004. The said rules have been repealed by the Rules of 2013. Both 2004 and 2013 Rules have been annexed along with the petition. It appears that 2004 Rules annexed to the petition does not have any Schedule attached to it unlike 2013 Rules. Be that as it may, Rule 5 and 6 of 2004 Rules on which reliance has been placed by this Court in O.P. Gaba’s case are reproduced as under:

“5 Absorption / Deputation (including short-term

contract).-

The Scientists or Technologists working in the Central or State

Governments or Universities or Recognised Research

Institutions or Semi Government, Statutory or Autonomous

Organisations in India or abroad may be recruited on

absorption or deputation (including short -term contract) basis

subject to fulfillment of the following conditions:-

(i) The Scientists or Technologists possess minimum educational; qualifications and experience as specified in Rule 3(3).

(ii) The Scientists or Technologists should be holding a post analogous to the post applied for:-

(a) For Scientist 'C’:- with five years' service in post in the scale of Rs. 8000-275 - 13500/- or equivalent. (b) For Scientist 'D':- with five years' service in post in the scale of Rs. 10,000-325- 15,200 or equivalent.

(c) For Scientist 'E':- with five years' service in post in the scale of Rs. 12,000-375- 16,500 or with 10 years' service in post in the scale of Rs. 10,000-325-15,200 or equivalent.

(d) For Scientist 'F’:- with two years' service in post in the scale of Rs. 14,300- 400- 18,300 or with seven years' Rs. 12,000-375-16,500 or (e) For Scientist 'G':- with two years' service in post in the scale of Rs. 16,400- 450-20,000 or with four years' Rs. 14,300-400-18,300 or

(iii) The period of deputation, including the period of deputation in another ex-cadre post held immediately preceding this appointment in same or some other Organisation or Department of the 'Central Government, shall not ordinarily exceed three years, which may be extended further with the approval of the competent authority.

(iv) The departmental Candidates in the feeder category, who are in the direct line of in situ promotion, under Flexible Complementing Scheme (FCS) shall not be eligible for consideration for appointment on deputation except, for the ex-cadre post for which they are not the feeder grade officers. Similarly deputationist shall not be eligible for consideration for in-situ promotion under Flexible Complementing Scheme (FCS).

(v) The maximum age limit for appointment by deputation shall not exceed 56 years as on the closing date of receipt of application.

6. In-situ promotion under Flexible Complementing Scheme (FCS).- (1) (a)The system of in-situ promotion under Flexible Complementing Scheme (FCS) shall be followed in the matter of promotion of departmental officers in the grade of Scientist 'B', Scientist 'C‟, Scientist 'D', Scientist 'E', Scientist 'F‟ and; Scientist 'G'. If the Assessment Board finds an officer, fit for in-situ promotion to the post of Scientist 'C‟, Scientist 'D', Scientist „E‟, Scientist 'F' and, Scientist 'G' and such posts are not available within the sanctioned strength.at that time, the promotion may be given by upgrading the posts of Scientist 'B' to Scientist 'C, those of Scientist -'C‟ to 'Scientist 'D', those of Scientist 'D' to ' Scientist 'E', those of Scientist 'E' to Scientist 'F' and those of Scientist 'F' to Scientist 'G'. (b) There will be complete interchangeability without any restriction except that the total number of posts of Scientist 'B', Scientist 'C', Scientist 'D', scientist 'E', Scientist „F' and Scientist „G' put together should not exceed the total sanctioned strength.

(d) In- situ promotions under Flexible Complementing

Scheme (FCS) will be personal to the officer concerned and would not result in specific vacancy in the lower grade on that account. The post being currently held the concerned officer will be upgraded automatically and personal to him for the duration of his stay in the in-situ promotion post. The post will revert to the original level once the officer vacates the higher post by superannuation, resignation or otherwise. (e) No person other than a person possessing the essential educational qualifications 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. (f) The Flexible Complementing Scheme shall be made applicable only to scientists arid Technologists holding scientific posts and who are engaged in scientific activities and services. The assessment norms for in-situ promotions under Flexible Complementing Scheme shall be rigorous with due emphasis on evaluation of scientific and technical knowledge so that only the scientists who have to their credit demonstrable achievements or higher level of technical merit will be recommended for promotion under the Flexible Complementing Scheme. (2) The scales of pay to which the Flexible Complementing. Scheme (FCS) shall apply, the minimum residency period linked to performance for in-situ promotion of the next higher grade and the uniform designations of the scientific and technical posts covered by the Flexible Contemplating Scheme shall be as given in the table below:- Designation Scale of pay Minimum Residency Period linked to performance

Union of India v. Vinay Kumar

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