Full Text
HIGH COURT OF DELHI
JUDGMENT
V.P.S.TOMAR ..... Petitioner
Through: Petitioner in person.
Through: Mr. Mukul Singh, CGSC with Ms. Ira Singh, Advocate for Respondents No.
1 & 2/ UOI.
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
1. The present writ petition has been filed by the Petitioner being aggrieved by the Order dated 12.08.2005 passed by the Central Administrative Tribunal in O.A. No. 604/2004. The facts of the case reveal that the Respondents came up with a new promotion policy for scientific officers working with the Government of India and considered all eligible Scientific Officers for the same, including the Petitioner before us. Upon assessment, the Petitioner was not found fit for promotion. Aggrieved thereby, the Petitioner has approached the Court impugning the entire Digitaaly policy, primarily on the ground that it is arbitrary, lacks objectivity and is discriminatory.
2. The facts that have led to the institution of the instant petition are that the Petitioner before this Court originally joined as Senior Scientific Officer- I in the Department of Science and Technology, Government of India. In 1998, in pursuance of the recommendations of the 5th Pay Commission, the Respondent introduced a new system of promotions for scientists working in various departments. The Government of India took a policy decision for grant of promotion in terms of a modified Flexible Complementing Scheme (FCS), meant for the promotion of Grade A officers of Science and Technology. Notably, the pre-existing FCS was amended from time to time, in view of the dynamic functional requirements and other material factors. The policy in question was issued by the Department of Personnel and Training vide Office Memorandum dated 09.11.1998 as a modified FCS for promotion of scientific officers.
3. In terms of the modified FCS, the Petitioner was deemed eligible for consideration for in situ promotion. Accordingly, his case was considered and, however, in light of the evaluation made by the Respondents, he was not found to be fit for promotion. Subsequent to the evaluation made by the competent authority, some scientific officers were promoted and others were not. Consequently, the Petitioner approached the Central Administrative Tribunal, Principal Bench, New Delhi (Hereinafter referred to as “the Tribunal”) stating that his case for promotion did not receive due consideration by the Respondents under the FCS Scheme and that other Respondents (officers who were promoted under the FCS Scheme) were unduly promoted as Senior Scientific Officer Grade I by applying the Digitaaly modified FCS. The Petitioner also urged that the Respondent Nos. 35 to 72 (before the Tribunal) were promoted as Principal Scientific Officer in contravention of the norms laid down under the FCS Scheme, and in supersession of the Petitioner. The Petitioner's challenge before the Tribunal primarily rested upon the methodology adopted for promotions as per the modified FCS.
4. The Tribunal, upon an elaborate analysis, did not find any merit in the Petitioner's challenge and refused to allow the prayers sought for vide Order dated 12.08.2005 passed in O.A. No.604/2004. The Tribunal turned down the Petitioner's prayer seeking promotion from the post of Senior Scientific Officer-I to Principal Scientific Officer w.e.f. 23.02.1999 and further promotion from the post of Principal Scientific Officer to Director w.e.f. 23.02.2004. By the same order, the Petitioner's prayer for setting aside the promotion orders of the Respondents was also denied, thereby leading to challenge present before us.
5. The impugned Order aptly deals with the concerns raised by the Petitioner and we may briefly go through the operative portion of the same. Speaking on the rationale behind the modified FCS for promotions, the impugned policy, the Tribunal noted that the policy is meant to promote merit and is a performance-based promotion scheme. The operative para reads thus:
As against the Petitioner‟s argument that the modified criteria is arbitrary and non-objective, the Tribunal observed thus: “12. The applicant during the course of arguments tried to demonstrate that formula for relative grading and grading on Digitaaly curve provided in the new scheme was not only arbitrary but also not practicable. In the rejoinder he has also mentioned about it. But we failed to appreciate as to how it could cause any prejudice to the applicant. The formula adopted was the best possible to assess the merit of the Scientist and could not work discriminatory or prejudicial to the case of the applicant alone. All the private respondents who have been impleaded by the respondents, were assessed by adopting the same norms and formula by a duly constituted screening committee. It may be pertinent to remember that the FCS promotion scheme does not have any element of inter-se competition between the scientists who were screened or assessed in the same batch. Each scientist is evaluated on the basis of the individual merit and achievement etc. individually and separately. If same yardstick and norms are applied to all the scientists, how can it work as injustice to the applicant. The contention of the applicant that his assessment should be based on the norms and yardstick laid down in the old FCS guide lines which were in operation w.e.f. 9.11.1998, to our view, has no merit and has to be rejected.
14. We have carefully examined the FCS for in situ promotion which became operational since 9.11.1998. The applicant has challenged its validity. But scrutiny of the Scheme does not show that it is impracticable to implement or it is in contravention of any statutory provision or it violates the principle of equality enshrined in Article 14 and 16 of the Constitution. It is also not unfair, unjust, biased or mala fide. The applicants who subjected himself to the evaluation/assessment for promotion to higher scales under FCS 1998 cannot turn around and challenge its very validity when failed to get selected for promotion. ”
5. Assailing the Order of the Tribunal, the Petitioner now contends that the impugned Order has failed to appreciate that the modified FCS is arbitrary and lacks objectivity as it is based on an unscientific conversion formula. It is contended that the Comprehensive Conversion Formula, Digitaaly meant for the conversion of the grade points obtained for ACRs (Annual Confidential Reports) into percentage of marks, is erroneous. The Petitioner further contends that it would be impossible to objectively convert grade points into percentage, thereby leading to the criteria being arbitrary and unreasonable, and thus violative of Article 14 of the Constitution. It is further contended that the modified FCS does not assign importance to research and development work carried out by the scientists and does not promote efficiency, thereby being violative of Articles 309 and 335 of the Constitution. It is urged before us that the new criteria does not provide for any mechanism to compare the performance of similarly placed scientists and leaves ample scope for arbitrary evaluation, as was done in the case of the Petitioner.
6. Per contra, the Respondents have steadily supported the modified promotion criteria by submitting that the same is meant for the promotion of excellence in scientific departments and does not suffer from any legal infirmity.
7. We have carefully gone through the original record before the Tribunal and have heard the parties at length. We may now proceed to examine the issue before us.
8. Succinctly put, our legal enquiry in this matter is restricted to two questions that arise for our consideration here – First, whether the modified FCS is arbitrary and unreasonable, and thus, constitutionally unsustainable. Second, whether the denial of promotion to the Petitioner was discriminatory and was a result of misapplication of the promotion criteria. Digitaaly
9. Both the issues are inter-twined with each other and thus, we may address both in our common discussion. Since the challenge is put to the modified FCS dated 09.11.1998, we deem it fit to reproduce the same as follows: ““No.2/41/97_PIC GOVERNMENT OF INDIA MINISTRY OF PERSONNEL, PUBLIC GRIEVANCE & PENSIONS DEPARTMENT OF PERSONNEL & TRAINING NEW DELHI, DATED 9th NOVEMBER, 1998 Sub:. Flexible Complementing Scheme for Scientists in various scientific departments - recommendations of the Fifth Central Pay Commission for modification of the Scheme- regarding. The undersigned is directed to say that in Chapter 51 of its report, the Fifth Central Pay, Commission has made a number of recommendations for modifying operation the existing Flexible Complementing Scheme in operation in Scientific & Technological Departments for in-situ promotion of scientists/ technical personnel, with a view to removing the shortcomings/inadequacies in the Scheme highlighted by the Commission. The recommendations of the Fifth Central Pay Commission in this regard have been I examined in consultation with the Secretaries of the Department of Science & Technology and some other major Departments and the following decisions have been taken:
1. The recommendation of the Pay Commission that the modified Flexible Complementing Scheme proposed by it should be applicable in all the Departments, including the Departments of Space, Atomic Energy, and DRDO without any special dispensation for any individual Department, has not been accepted. The existing scheme of merit based promotion system covering the Group A,B &C personnel, as presently applicable in the Deptt. Of Atomic Energy, Deptt. Of Space and DRDO shall continue. Digitaaly
2. The recommendation of the Pay Commission to "scientific administrators" and to exclude them from the benefit of in-situ promotions under Flexible Complementing Scheme and to bring them under the ambit of "Assured Career Progression Scheme" formulated by the Pay Commission has not been accepted. However, it has been decided that the Flexible Complementing Scheme should, as per its original objective, be made applicable only to scientists and technologists holding scientific posts in scientific and technology departments and who are engaged in scientific activities and services. It has also been decided that assessment norms for promotions under the Flexible Complementing Scheme should 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 are recommended for promotion under the Flexible Complementing Scheme. For achieving these the following discussions have been taken: a) The criteria for identifying institutions/organisations as scientific and technological institutions as well as for defining scientific activities and services, scientists and engineers and the scientific posts shall be as prescribed in Annexure -I to this Office Memorandum. The FCS shall not be applicable where the criteria specified vide this Office Memorandum are not fully met. b) A revised assessment procedure as prescribed in the Annexure II to this Office Memorandum shall henceforth be followed by all scientific Ministries/Departments considering advancement under FCS.
3. The recommendations of the Pay Commission that the existing disparities in the operation of Flexible Complementing Scheme in various scientific and technical departments in the matter of designation of posts, 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 the Flexible Complementing Scheme shall carry the uniform scales of pay, Digitaaly designations and the minimum residency period linked to performance:- Scale of pay Designation Minimum Residency period linked to performance a) Rs. 8000-13500 b) Rs. 10000-15200 c) Rs. 12000-16500 d) Rs. 14300-18300 e) Rs. 16400-20000 f) Rs. 18400-22400 Scientist B Scientist C Scientist D Scientist E Scientist F Scientist G 3 years 4 years 4 years 5 years 5 years 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. The recommendation of the fifth central pay commission for introducing a cooling off period of 3 years before an officer is considered for the flexible complementing scheme on the second occasion at the same level has not been accepted. The recommendation for disqualification of the candidate permanently from the FCS in case of failure to qualify thrice at the same level etc, has also not been accepted. Therefore, the existing system of assessing the officer every year would continue. It has further been decided that in order to extended the benefit of in-situ promotion under the Flexible Complementing Scheme to the other Scientific Organizations that are demanding the extension of FCS in their cases, 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 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 & Technology shall set up a Committee, including the representatives of Department of Personnel & Training and of the Department of Expenditure as well as Digitaaly eminent scientists relevant to the discipline, for examining the proposal 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 recommendations would take a special view as to the number of scales that should be operated in the organization 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 & Technology, the nodal Department for operation 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.A42014/2/86-Admn.l(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. Sd/- (Smt. Bhavani Thyagarajan) Director” (emphasis supplied) Digitaaly
10. A careful scrutiny of the modified scheme reveals that the scheme is a conscious policy departure from the earlier regime for promotion of scientists working in the departments of Government of India. The scheme, adopted in pursuance of the recommendations given by the 5th Pay Commission, is meant for a defined class of personnel, i.e. scientists and technologists, holding scientific posts in science and technology departments. Some of the salient features of this scheme can be listed as follows: i. The scheme is a marked departure from the usual vacancy-based promotion schemes. A higher vacant post is not required for promotion to the next higher scale. ii. It is a merit based in-situ personnel up-gradation scheme in which a scientist, if recommended by a duly constituted Assessment Board for promotion to the next higher scale, carries his own original post upwards. iii. The concept of minimum benchmark based on inter-se seniority or juniority are absent in the scheme. The modified criteria mandates a rigorous assessment of eligible scientists with special focus on scientific and technical knowledge. iv. Each scientist is evaluated on the basis of his own achievements during the residency period under evaluation, which are demonstrable to his credit or which demonstrate a higher level of technical merit. The scheme, essentially, is a performance-linked scheme. v. Under the FCS, there is a minimum residency period prescribed for promotion from one scale to the next higher scale which ranges from 3 to 5 years. Digitaaly vi. The modified FCS ensures uniformity in matters of designation, pay scales and residency period for scientists working in different departments of the Respondent and functions on the criteria of merit and performance.
11. The aforesaid analysis of the modified FCS conveys that there is no element of inter-se competition between various scientists being screened or assessed in the same batch. Each scientist is being evaluated on the basis of their own individual merit and achievements, separately on the basis of a uniformly devised criteria. The procedure involves screening, which is done by a regularly constituted Screening Committee, on the basis of ACRs etc. during the residency period spent by the scientist in the relevant grade. Screening is followed by assessment, which is done on the basis of research and development work, peer reviewed wherever applicable, and on the basis of performance in an interview conducted by an Assessment Committee consisting of eminent experts in the relevant disciplines. The central theme underlying the modified scheme is to promote excellence through research work.
12. At the screening stage, the ACRs are assessed on a 10-point scale, with 10 marks for "Outstanding", 8 marks for "Very Good", 6 marks for "Good", 4 marks for "Average", and 0 for "Poor". Corresponding to the grades assigned in the ACR, they are converted into percentage terms as per a well-defined conversion formula. Additionally, for screening, the officers are required to satisfy the minimum residency period linked to their performance (evaluated in percentage terms) as indicated in the table below: Digitaaly Number of years in the grade 3 4 5 6 7 8 Minimum percentage for eligibility Scientist „B‟ to Scientist „C‟ 90% 80% 70% 65% 60% ----- Scientist „C‟ to Scientist „D‟ --- *90% 80% 75% 70% 60% Scientist „D‟ to Scientist „E‟ ----- *90% 80% 75% 70% 60% Scientist „E‟ to Scientist „F‟ ---- ---- *90% 80% 75% 70% Scientist „F‟ to Scientist „G‟ --- ---- *90% 80% 75% 70%
13. Thus, the criterion is an intelligent fusion of performance linked with corresponding residency period as with the increase of the residency period, the requirement of percentage (indicative of performance) is reduced, thereby giving due recognition to experience (indicated by residency period) in such cases. Moreover, minimum percentage of marks have to be obtained to get in-situ promotion under the new scheme viz. 60% in case of Scientist „B‟ after seven years, 60% in case of Scientist „C‟ & „D‟ after eight years and 70% in case of Scientist 'E' & 'F" after eight years. Thus, despite relaxation in certain circumstances, the minimum criteria has not been compromised so as to preserve the essence of promotion on the basis of Digitaaly merit. Furthermore, exceptionally meritorious candidates, with all outstanding gradings, may be granted relaxation in the residency period, the relaxation being not more than one year on any single occasion, with a further condition that such a relaxation will be limited to a maximum of two occasions in their entire career.
14. The aforesaid analysis of the modified policy indicates that the policy is based on a uniform criteria based on objectivity and contains sufficient safeguards to prevent arbitrariness. The conversion of the 10-point scale into percentage terms is meant to synchronize and scale the ACRs and performance reports. The Petitioner's submission that the conversion formula is impractical and unintelligent deserves to be rejected. The formula is duly adopted in the form of a chart and leaves no scope for arbitrary application on a case to case basis. Furthermore, the percentage conversion is merely a step at the stage of screening and is not conclusive of the entire assessment of a candidate. The screening stage is followed by an assessment stage wherein the case of an officer is evaluated on the basis of research and development work and an interview before a panel of experts. The indicators adopted in the modified FCS are of a qualitative nature and the policy must be understood as a whole. It is not meant to be dissected, as Petitioner seeks to do.
15. We must be cognizant of the fact that the scope of judicial review of a State policy is restricted. It does not fall within the domain of a constitutional Court to dissect the rationale behind a policy and substitute its own version of a good promotion policy in place of the State policy, as long as the policy falls within the four corners of the Constitution. It is equally beyond the scope of judicial review to strike at the root of a policy decision Digitaaly on the ground that there could have been a better policy in place. What we are concerned with is legality and constitutionality. The Petitioner has alleged that the modified FCS is violative of Article 14 of the Constitution. The jurisprudence governing the judicial review under Article 14 has experienced a substantial shift from the reasonable classification test to the test of arbitrariness. It has evolved to recognize that even reasonable classification could result in arbitrariness.
16. In this case, the modified policy applies to a well-defined class of persons working as scientists and technologists. Furthermore, it applies to persons who are working in certain designated science and technology departments. The policy delineates the procedure to identify such departments and to identify the persons who qualify as scientists and technologists. Upon such identification, the policy applies a uniform formula to all the candidates, consisting of screening and assessment stage. The differentia involved in identifying and classifying scientists as a different category of officers is fairly intelligible, in view of the nature of research and development work undertaken by the scientists. Furthermore, in view of the increasing emphasis on scientific advancement and its role in the progress of the country, the classification is reasonable in light of the object sought to be achieved by laying greatest emphasis on merit and performance is justified.
17. The aforesaid discussion further indicates that the criterion is not only uniformly applicable to all the scientists but is also objective, intelligent and efficient. There is no indication of arbitrariness so as to attack the policy as violative of Article 14. The policy is tailor made to provide career advancement to all classes of scientists, depending on their residency period Digitaaly and performance indicators. It promotes merit while maintaining a minimum threshold at the same time.
18. The Petitioner has urged that the two-tier scheme of obtaining 85% marks in screening and assessment separately, is on the higher side. In our considered view, this contention holds no merit. The very essence of the new criteria is to promote excellence and to incentivize research and development in the field of science and technology. The higher benchmark is meant to enable the assessment committee to filter out unworthy candidates. To say that the benchmark is on the higher side cannot be regarded as a legally sustainable argument to question the policy. The Petitioner must bear the burden to show that the higher benchmark is either arbitrary or discriminatory. A simpliciter argument that the benchmark envisaged in the policy is stricter or higher could be used to propose a better policy, however, it cannot be regarded as a legal argument to question the policy by way of judicial review. Neither the Court nor the Petitioner is expected to substitute the State policy with its own policy. If the contention of the Petitioner is accepted, it will defeat the very basis and rationale of the FCS, that too without any finding of illegality or unconstitutionality.
19. The Petitioner was appointed as SSO-I (now scientist 'C") in the Department Science and Technology w.e.f. 23.02. 1994 and became eligible for consideration for promotion under the FCS as on 1.1.1999. His case for promotion under FCS was considered along with other eligible scientists as per the revised FCS guidelines issued by the DP&T vide their Notification (O.M. No. 2/41/97-PIC dated 9.11.1998 (Annexure-R-2). He was screened in and interviewed as per the procedure on 11.8.1999. However, he was not recommended for promotion by the Assessment Board. He was again Digitaaly considered for in-situ promotion along with other eligible scientists as on 01.01.2000. He was screened in and interviewed on 10.06.2000. However, he was again not recommended for promotion by the Assessment Board. However, despite non-recommendation, the Petitioner was duly considered for promotion under the prevailing Guidelines for promotion.
20. The other scientists, listed as Respondents, were treated uniformly at par with him and were recommended for promotion as per the existing FCS and on an assessment of their respective merits, field experiences etc. All norms of fairness and equity appear to have been followed in the promotion of other scientists. Merely because the norms are allegedly strict in nature, this Court would be stepping out of line to disapprove of the same. Moreover, we find ourselves in agreement with the Respondent‟s stance that the modified promotion scheme is a fast track, merit based, in-situ, personal up-gradation scheme, wherein elevation to the next scale is swift as compared to the usual vacancy based promotion scheme in vogue. The applicable yardstick is higher scientific/technical merit and demonstrable research work.
21. Moreover, the norms are uniformly applied to all scientists under assessment without any discrimination. We should also not lose sight of the fact that the Petitioner never challenged the rationale and validity of the new scheme until he himself was not recommended by the Assessment Board. If the scheme was grossly unjust, as alleged by the Petitioner, he could have challenged it earlier.
22. Be that as it may, we have considered the challenge in depth and both the issues framed by us stand decided in favour of the Respondents. The scheme stands the test of constitutionality and the Petitioner has failed to Digitaaly demonstrate any discrimination in the application of the scheme vis-à-vis other scientists who were recommended for promotions.
23. In view of the aforesaid discussion, we find no merit in this petition. Accordingly, the petition stands disposed of as dismissed.
24. Interim applications, if any, also stand disposed of in the aforesaid terms. No costs. (SATISH CHANDRA SHARMA)
CHIEF JUSTICE
JUDGE FEBRUARY 23, 2023 Digitaaly