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Judgment
PER: RAJINDER SINGH DOGRA, JUDICIAL MEMBER:
The applicant has approached this Tribunal to seek the following relief:
“8.1.That the Hon‘ble Tribunal be pleased to set aside and quash the impugned rejection letter bearing No. 15(1)/2020-PA(TA) dated 04.08.2021 (Annexure- A1).
8.2.That the Hon’ble Tribunal be pleased to direct the respondents to grant benefit of ante-dating promotion due and admissible to the applicant from the date of attaining eligibility w.e.f. 01.10.2014 under MeitY’s below Group ‘A’ policy or alternatively at least w.e.f. 01.01.2015 in terms of MeitY’s Group ‘A’ policy in the cadre Scientist ‘C’ in modification of the impugned promotion order dated 28.06.2018 (Annexure- A2) with all consequential benefit including arrear monetary benefit.
8.3.Cost of the application.
8.4.Any other relief(s) as this Hon’ble Tribunal may deem fit and proper.”
Applicant who was initially appointed as Scientific Assistant ‘A’ joined on 28.07.1994 GP-4200/-and got promoted as Scientific Assistant ‘B’ on 01.10.1998 and was further promoted as Scientific Officer (SO/SB) in the year 2005 and was further promoted to the post of Scientist ‘B’ Level 9 w.e.f. 04.08.2011 from the grade of SO ‘SB’ on 05.09.2011.
He is aggrieved with the impugned letter dated 04.08.2021 whereby claim of the applicant for ante-dating his promotion in the cadre of Scientist ‘C’ Level 11 w.e.f. 01.01.2015 has been rejected without assigning any valid reason. He has also approached this Tribunal praying for a direction upon the respondents to grant ante-dating promotion in the cadre of Scientist ‘C’ Level 11 w.e.f. 01.01.2015 with all consequential benefits by way of modification of the impugned promotion order dated 26.08.2018 moreso when the 7 juniors of the applicant have been granted ante dated promotion in the cadre of Scientist ‘C’ Level 11 w.e.f. 01.01.2016 vide promotion order dated 28.01.2020 which has caused serious prejudice to the service prospect of the present applicant. He preferred representations at Annexure A-15 but the same has not been considered. Hence, this O.A.
Learned counsel for the applicant submits that the impugned rejection letter dated 04.08.2021 (Annexure A1) has been issued without assigning any valid reason while rejecting the bonafide claim of the applicant for ante-dating his promotion, alleging that since the educational qualification of the applicant as per the Service Book on 29.04.2016, therefore he would be eligible on completion of 3 years of service after 29.04.2016 which is highly arbitrary and illegal as because it is an admitted fact that the applicant has already upgraded to Group “A” i.e. Scientist “B” Level 9 to Scientist “B” Level 10 as per office order dated 10.10.2016 (Annexure- A4), therefore such a ground is not sustainable in the eyes of law. Moreover when the applicant is otherwise eligible in the absence of qualification of MSc. (IT) way back on 01.10.2014 as per qualification already recorded earlier at the time of entry in his service in normal course under Below Group A Policy for the purpose of promotion to the cadre of Scientist ‘C’ but such, a fact of eligibility of the applicant has been deliberately overlooked and ignored by the respondents which is evident from interview call letter dated 16.04.2018 (Annexure- A7). Therefore on that score alone, the impugned letter dated 04.08.2021 is liable to be set aside and quashed with exemplary cost.
That, when there are two sources available for consideration of promotion i.e., under the MeitY’s Below Group A Policy and also under the Group A Policy in the cadre of Scientist ‘C’, moreso when the applicant has attained his eligibility admittedly on 01.10.2014, therefore case of the applicant ought to have been considered for promotion in the cadre of Scientist ‘C’ as per his eligibility w.e.f. 01.10.2014. But the respondents caused inordinate delay of nearly 4 years in holding the interview for his promotion to the post of Scientist ‘C’. Such administrative lapses has caused serious prejudice to the applicant in the matter of effecting his promotion only w.e.f. 10.06.2018 moreover there is no whisper in the impugned rejection letter dated 04.08.2021 as to why the case of the applicant has not been considered for promotion w.e.f. 01.10.2014 when the Personnel Policy is a Time Bound Promotion Scheme notwithstanding existence of a vacancy; as such, the impugned letter dated 04.08.2021 is liable to be set aside and quashed with direction upon the respondents to ante-date the promotion of the applicant either w.e.f. 01.10.2014 under below Group ‘A’ policy or alternatively w.e.f. 01.01.2015 as per Group A Policy with all consequential benefit in modification of the impugned promotion order dated 28.06.2018.
That, Govt. of India DoPT issued specific instructions from time to time that a vacancy is liable to be filled up on the date of occurrence of the vacancy by holding DPC in advance to prepare a panel for promotion so that the said panel can be utilized by granting promotion on the date of occurrence of the vacancy or on the date when promotion is due under the time bound promotion scheme but such instructions have been deliberately ignored and overlooked which has caused serious prejudice to the present applicant so far his service prospect is concerned.
It is a well settled position of law that a junior cannot be promoted ahead of the senior but the respondents in a most arbitrary manner with a malafide intention deliberately ignored such cardinal principle of law of service jurisprudence.
For that, when as many as 7 (seven) juniors of the present applicant namely, S. Kar, A. Dasgupta, A. Dutta, K. Mallesham, G. Venketa Lakshmi, Amit Tyagi, Sandhya Das, have been promoted retrospectively w.e.f. 01.01.2016 pursuant to the promotion order dated 28.01.2020 (Annexure- A6), in terms of MeitY’s personnel policy of Group ‘A’ S&T officers as such, the applicant being senior is also legally entitled to benefit of promotion in the cadre of Scientist ‘C’ w.e.f. 01.10.2014 under MeitY’s below Group ‘A’ policy or at least w.e.f. 01.01.2015 as per Group ‘A’ MeitY’s personnel Policy of S&T officers with all consequential benefit in modification of the impugned promotion order dated 28.06.2018. The applicant has been meted out with hostile discrimination in the matter of retrospective/ante-dating promotion in the cadre of Scientist ‘C’ without assigning any valid reason. As such applicant, has acquired a valuable legal right being senior to the aforesaid juniors, for antedating his promotion either w.e.f. 01.10.2014 or at least w.e.f. 01.01.2015.
Respondents in their reply have stated that the S&T officials in STQC Directorate are governed by two Personnel Policies of MeitY. The group ‘A’ S&T officials having educational qualification upto Diploma in Engineering level are governed by the Personnel Policy and Practices issued by Ministry of Electronics & Information Technology (MeitY), erstwhile Department of Electronics vide OM No. A-12018/10/81-PP dated 18.07.1983 and amended from time of time. The officials can be promoted upto the level of Scientist ‘C’ as per the provisions of this policy. However, they can be further promoted after acquiring the requisite higher qualification as per the MeitY’s Personnel Policy notified vide its OM dated 19.09.2016 subject to the fulfilment of prescribed criteria. Personnel Division MeitY vide OM no. 2(11)/2016-Pers. III dated 19.09.2016 notified the Personnel Policy for Group ‘A’ S&T Officers of MeitY and its organisations.
Applicant was promoted from Scientist ‘B’ along with other S&T officers to the post of Scientist ‘C’ as per the said Policy of below Group ‘A’ S&T Policy of MeitY on 11.06.2018. He acquired the higher qualification i.e. M.Sc. (IT) which was updated in the service records on 29.04.2016. Pers. III Section, MeitY (nodal section of Personnel Policy) vide OM dated 15.02.2019 conveyed the decision for granting promotions from the date of eligibility in respect of officers who were considered as per the said Group A S&T Policy notified on 19.09.2016 with the approval of the competent authority. Thus Group-A S & T officers who were promoted after the issuance of the said policy got the benefit of delayed promotions as mentioned in the said OM dated 15.02.2019. As the applicant was not considered as per the Group A S&T Policy, he is not entitled for the benefit of promotion granted to other eligible S&T officers from the date of eligibility.
The claim of the applicant that Smt. Banani Das, was considered and he was not, the respondents have stated that Smt. Banani Das, who was also promoted to the post of Scientist C on 11.06.2018 submitted representation for considering her case as per Group ‘A’ S&T Policy as she was fulfilling the eligibility criteria laid down in the policy. Her case was taken up for consideration as per Group A S&T Policy after verification of records pertaining to educational Qualification of M. Sc (IT) in 2008 at par with officers considered as on 01.01.2015 for promotion from Scientist ‘B’ to the post of Scientist ‘C’. She was promoted after following the due procedure with the approval of competent authority. Further it was also conveyed that cases of similarly placed officers may also be considered subject to fulfilment of provisions of the said Policy. Thereafter, the issue was taken up in respect of the applicant, Sh. Tulshi Patar, it has been observed after verifying the records received from ETDC, Guwahati that he acquired educational qualification of M. Sc. (IT) in 2016 which makes him eligible for consideration as per Group A S & T Policy of MeitY. As he was not meeting the eligibility criteria as per Group ‘A’ S&T policy i.e. requisite qualification along with length of service, he was not considered for promotion as on 01.01.2015. He was not eligible for consideration for promotion from Scientist ‘B’ to Scientist ‘C’ as on 01.01.2015 because he had acquired the requisite qualification of M. Sc (IT) in 2016. The officer has to render 03 years of regular service after meeting the essential qualification criteria.
According to respondents, applicant is not entitled for promotion to Scientist ‘C’ w.e.f. 1.1.2015, however he would only be eligible for promotion to the post of Scientist ‘C’ level on completion of residency period of four years i.e. on or after 30.04.2020 in the light of provision of the Personnel Policy for Group “A” S&T Officers notified vide office memorandum no. 2(11)/2016-Pers.III dated 19.09.2016 whereas his other juniors who were got promoted to the post of Scientist ‘C’ level, had the requisite prescribed qualification as indicated above as on that date.
The claim of the applicant that the old Rule is applicable is factually incorrect, however if it is held to be applicable then also under the old rules the applicant was not eligible for promotion to the post of Scientist - C prior to 1.1.2016 as at that point of time he had not fulfilled the condition of requisite qualification of Bachelor Degree in Engineering/ Technology (BE/B-Tech)/ DOEACC B-Level/AMIE/ Graduate IETE or Master Degree in Science (MSc) or Master in Computer Application or Master Degree in Engineering/Technology (ME/M-Tech) or Masters Degree in Philosophy (MPhil) or Doctorate(PhD) for promotion to the post of scientist ‘C’ Level.
Sri M. Chanda, learned counsel for the applicant avers that in the RTI reply dated 20.05.2022, respondents have admitted that the present Applicant has entered in Group 'A' category w.e.f.29.04.2016 and his name is placed at serial no. 7 of the said RTI reply and Smti. Banani Das also placed at Sl. No. 3 and her entry in the Group 'A' category has been shown as 11.06.2018 i.e., long after the entry of the present Applicant in Group 'A' category. However, she has been granted benefit of ante-dating promotion in cadre of Scientist 'C' w.e.f. 25.05.2015 vide order dated 11.06.2018 as evident from another RTI reply bearing no. STAQC/R/E/22100023134. Besides, it would be further evident from RTI reply supplied to the Applicant bearing no. STAQC/R/E/2210005011 wherein it would be further evident that one Shri Tridip Kumar Saha who entered in service as senior technical assistant having educational qualification of Diploma in Mechanical and Electrical Engineering who was subsequently promoted in the cadre of scientist 'C' but acquired higher qualification only on 25.06.2004 but he was further promoted to cadre of Scientist 'D' within a span of eight(8) months without insisting for completion of residency period of Four (4) years period. Therefore, it appears that the Respondents are taking different stand in different occasion.
So, learned counsel for the applicant submits that since the Applicant has been placed in Group 'A' Category after his promotion to the cadre of Scientist 'B' in the scale of pay of Rs. 15600-39100 with Grade Pay of Rs. 5400, as per CCS (Revised) Pay Rules, 2008, as such there is no scope on the part of the Respondents to alter/modify the classification of the post of Scientist 'B' on the pretext that the Applicant has acquired higher qualification of MSc. IT in the year 2016. It is emphatically stated that since the Applicant has been promoted in the cadre of Scientist 'B' and his pay has been fixed in Pay Band 3, as such there is no scope on the part of the Respondents to deny the promotional benefit in the cadre of Scientist C at least w.e.f. 01.01.2015 and the contentions of the Respondents that the Applicant had acquired higher qualification of MSc. IT only in the year 2016 has no nexus with his claim for ante-dating promotion to the cadre of Scientist 'C' w.e.f. 01.01.2015 instead of 11.06.2018 as granted to the Applicant vide impugned promotion order dated 28'06.2018 (AnnexureA2, Page No. 67-69 of the O.A.). In the facts and circumstances stated herein above the instant O.A. deserves to be allowed with exemplary cost.
Learned counsel for the applicant relies on the following judgements to buttress his arguments;
(1). Order dated 21.02.2017 passed by the CAT, Principal Bench in the case of Dr. Anjum N. Rizvi, -vs- Union of India & Others in OA NO. 1781/2015 & MA.544/2017, relevant paras is as under: wherein it was held that
“7.The present case is squarely covered by the aforesaid judgment. The applicant is entitled to in situ promotion from the date he acquired eligibility. His eligibility has otherwise been approved, as is evident from the promotion order dated 02.02.2015. It is also not the case of the respondents that he was not eligible on the date on completion of four years of residency as Scientist 'C'. Hon'ble Supreme Court has not only granted the relief but also held that all similarly situated Scientists will be entitled to similar benefits.
8.In this view of the matter, this OA is allowed. Respondents are directed to ante date the promotion of the applicant w.e.f. 01.07.2012 with all consequential benefits within a period of three months from the date of receipt of a certified copy of this order. There shall be no order as to costs.”
Order dated 22.09.2017 passed by the CAT, Principal Bench, New Delhi in OA/2747/2014 (Dr. Parveen Arora, & Ors-vs- Union of India & Others), held as under:
“7.11As far as the contention of Sh. Sinha that granting retrospective promotion would be against the Recruitment Rules, it is noteworthy that respondents themselves have violated the Rules by delaying holding of Screening Committee Meetings and obtaining approval of competent authority well in advance. Such situation has not been envisaged in the Rules, which are framed with the assumption that Screening Committee Meetings shall be held on 1st January and 1st July every year well in advance so that by the time the date of eligibility of as a Scientist arrives, he can be granted promotion to the next grade. Hon'ble High Court of Delhi while deciding the case of Dr. S.K. Murti (supra) has observed that the respondents cannot be allowed to take advantage of their own fault of delaying Selection Committee Meetings and make the employee suffer for that. This finding of Hon'ble High Court has been upheld by the Apex Court in the SLP filed against the same order.
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9.In view of the above analysis, we are inclined to allow this O.Α. and direct the respondents to grant ante dated promotions to Grade-'G' to the applicants under the FCS from the date of their eligibility. The applicants shall also be entitled to consequential arrears. Considering the facts and circumstances of the case, we are not inclined to allow any interest on the arrears. The benefits may be given to the applicants within a period of 08 weeks from the date of receipt of a certified copy of this order. No costs.
(3.) Order dated 04.08.2010 passed by the CAT, Principal Bench, New Delhi in OA/2296/2009 (Dr. V.S. Rao Chintala, & Ors -vs- Union of India & Others), held as under:
“15.Considering the facts and circumstances of the case and statutory provisions available for the in situ promotion and our detailed analysis on the issues, we direct the Respondents to consider each of the Applicants case for in situ promotion under FCS to Scientist-G grade according to their fulfillment of the residency period. If they are found eligible, they should be granted in situ promotion to the grade of Scientist-G with effect from 1st January or 1st July of the respective year, they are found to be eligible and the consequential benefits would accrue to them. The Respondents are further directed to review the case of the Applicants through appropriate Committee/Board as per FCS and such an exercise should be completed within a period of three months from the date of receipt of a certified copy of this order.
16.The Original Application is, therefore, allowed in terms of our above directions to the Respondents. In view of the typical nature of this case, we direct the respective parties to bear their own costs.”
(4.) Order dated 29.05.2014 passed by CAT, Principal Bench, in OA No. 1926/2013, (Dr. A Duraisamy, Scientist-F, New Delhi & Another, -vs-Union of India, through the Secretary, New Delhi) held as under:
“37.We, therefore, direct that the case of the present applicant Dr. A. Duraisamy should be considered by the respondents terms of the latest OM dated 24.05.2013, and appropriate orders may be passed, making it clear that if he is found to l eligible for grant of ante-dated promotion under FCS, from the appropriate date in respect of Scientist G, the benefit of 31 MACP to the grade of Scientist Galready granted to him, shall be withdrawn or adjusted against any dues which may accrı to him, after such in situ FCS promotions having been antedated.”
(5). Judgment and order dated 02.05.2011 passed by the Hon'ble Supreme Court of India in the case of Union of India & Anr. Vs S.K. MURTI. [CC 6864/2011) wherein the Hon’ble Supreme Court affirmed the Delhi High Court's ruling, holding that scientific and technical employees cannot be denied promotion or delayed benefits under the Flexible Complementing Scheme (FCS) due to administrative inaction in convening assessment boards on time.
Heard the learned counsel for the parties and perused the records as well as the pleadings.
It is admitted position that the applicant was promoted from Group A Scientist to Group B in 2011 and thereafter he was on residency period for 3 years and thereafter promoted to Scientist C. He claims that he deserves to be promoted to Scientist C in 2014. The Reply by the respondent department states that applicant is not eligible for promotion to the post of Scientist - C prior to 1.1.2016 as, at that point of time, he had not fulfilled the condition of requisite qualification in M.Sc IT which he got in 2016 so he deserves to be promoted in 2016 but he was promoted from 2018 and juniors were promoted in 2016. Hence, the action of the respondents is not at all sustainable in the eyes of law.
In view of the foregoing discussion as well as after going through the decision referred by the learned counsel for the applicant, we are of the considered opinion that the applicant is entitled for antedated promotion from the date he acquired eligibility since he has completed the residency period of 3 years.
Accordingly, O.A stands allowed. Respondents are directed to promote the applicant from the date when his juniors were granted promotion i.e w.e.f. 01.01.2016 with all consequential benefits within a period of 04 months from the date of receipt of certified copy of this order. Consequently, the impugned letter dated 04.08.2021 (Annexure A1) is quashed and set aside. No order as to costs.