Full Judgment Text
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CASE NO.:
Appeal (civil) 4657 of 2007
PETITIONER:
Bureau of Indian Standards
RESPONDENT:
S.K. Kanojia
DATE OF JUDGMENT: 05/10/2007
BENCH:
Dr. ARIJIT PASAYAT & TARUN CHATTERJEE
JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO. 4657 OF 2007
(Arising out of S.L.P.(C) No.8051 of 2006)
(With Civil Appeal No 4658/2007 @ SLP (C) No. 8363/2006)
Civil Appeal No 4659/2007 @ SLP (C) No. 8579/2006)
Civil Appeal No 4660/2007 @ SLP (C) No. 8592/2006)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. These appeals are directed against the judgment of a
Division Bench of the Delhi High Court dismissing the appeals
preferred against the order of a learned Single Judge who
allowed the writ petitions filed by the respondents.
3. Background facts in a nutshell are as follows:
The respondents had claimed for directions to the
appellants-Bureau of Indian Standards (hereinafter referred to
as ’BIS’) to promote them as Scientists-D in the pay-scale of
Rs.12000-375-16500 on the date of their completion of 5 years
of service in the lower grade under a scheme known as the
"Flexible Complementing Scheme" (hereinafter referred to as
’FCS’).
The BIS is governed by statutory regulations. The
relevant provision, viz. Regulation 9 of Bureau of Indian
Standards (Recruitment to Scientific Cadre) Regulation, 1988
(in short the "Regulation") reads as follows:
"9. Promotion to the Posts upto System
Scientist-E [Director (selection Grade)] " (1) The
selection for promotions shall be made from
amongst the scientific cadre officers serving in
the next lower grade by the standing staff
committee of Selection Committee ’A’ as the
case may be, on the recommendations of the
Assessment committee appointed by the
Director General under sub-regulation (3).
Selection of officers for promotion shall be
made on the basis of assessment procedure as
laid down by the Executive Committee which
shall take into account qualifications
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performance, merit, seniority, potential,
annual confidential reports for previous five
years and interview.
(2) The promotion of Selected officers to next
higher grade upto the System Scientist-E shall
be made in the same manner as laid down in
the Scheme of Flexible Complementing
formulated from time to time by the
Department of Science and Technology for
promotion of Scientists in scientific
organizations under the Central Government
and shall be effective from the date of
eligibility."
4. The BIS adopted recommendations of the Fifth Central
Pay Commission, with effect from 1-1-1996, and implemented
the FCS. The FCS contemplated promotion, after completion
of certain prescribed periods of service, in relation to each post
(known as the "residency period"). These pertained not only to
posts, but also to scales of pay. The relevant residency periods
were as follows:
Scales of Designation Minimum
Pay Residency period linked to
Performance
_________________________________________________________
a) Rs.8000\02713500 Scientist B 3 years
b) Rs.10000\02715200 Scientist C 4 years
c) Rs.12000-16500 Scientist D 4 years
d) Rs.14300-18300 Scientist E 5 years
5. The respondents were in the pay-scale of Rs.10,000-
15,200, and working as Scientist-C, with effect from 10.3.1994
and were to have been promoted to Scientist -D, after five
years in 1999. The promotions were granted only in March,
2003, with effect from March, 2001. The delay was attributed
by the BIS, to a contemplated change in the Service
Regulations. Changes were introduced to the FCS by an Office
Memorandum dated 9th November, 1998 which modified the
eligibility for benefits of the FCS linked to the Annual
Confidential Reports of the person concerned. Regulation 9
was amended by notification dated 3rd May, 2002, in exercise
of the powers conferred by Section 38 of the Bureau of Indian
Standards Act, 1986 (in short the "Act") to read as follows:
"9.Protmotion to the Posts up to Scientist-G
"(1) The selection for promotions shall be made
from amongst the Scientific Cadre officers
serving in the next lower grade by the
Assessment Committee appointed by the
Director General under sub-regulation (2).
Selection of officers for promotion shall be
made in the same manner as laid down in the
Scheme of Flexible complementing formulated
from time to time by the Central Government
for promotion of scientists in Scientific
Organizations under the Central Government
and shall be effective from the date of
eligibility. The Scheme of Flexible
Complementing as formulated by the Central
Government vide OM No.2/41/P1C-97 dated
the 9th November, 1998 would be effective for
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Scientific Cadre Officers upto and inclusive of
the level of Scientist-E from 9th November,
1998 and for the levels of Scientist-F and
Scientist G, the date of promotion would be
effective from the date of Gazette Notification of
this revised regulation."
6. The rationale for the amendment was spelt out in
Explanatory Memorandum to the notification, which stated,
inter alia that:
"The Scheme of Flexible Complementing (FCS)
was earlier introduced based on the guidelines
issued by the Department of Science and
Technology (DST) in November, 1983 for all
Scientific and Technical
Organizations/Institutions of the Government
of India, which was later modified vide
Department of Science & Technology’s OM
No.A.42014/2/86-Admn.1(A) dated the 28th
May, 1986. According to this scheme, the
promotion of an officer in scientific service
from one grade to the next higher grade would
take place after a prescribed period of five
years residency service on the basis of
assessment procedure as laid down by
individual organization. Promotions made
under this scheme would be in-situ and with
effect from the date of their eligibility as per
the residency period and personal to the officer
concerned irrespective of the occurrence of the
vacancy in the higher grade. Accordingly, in
Bureau of Indian Standards, all Scientific
Cadre Officers were considered eligible for
promotion from one grade to the next higher
grade after they had put in 5 years of
residency service in that grade. Thereafter,
based on the assessment procedure as laid
down by the Executive Committee of Bureau of
Indian Standards, which shall take Into
account qualifications, performance, merit,
seniority, potential, annual confidential reports
for previous five years and interview by the’
Assessment Committee appointed "by the
Director General, the officers would be
promoted to the next higher grade as per their
date of eligibility."
7. The respondents had approached the court, complaining
that the BIS acted arbitrarily in withholding promotions to
them to the cadre of Scientist D, from the date of their
eligibility; instead of the promotion rightfully due to them in
1999, they were given the benefit in 2001. During the
pendency of their writ petitions, another notification was
issued on 12-8-2004, and published in the Gazette of India.
By this notification Regulation 9 was again amended. The
Explanatory Memorandum clarified the purpose behind the
change. It stated that BIS Regulations, 2002 adopted the
Scheme formulated by the Central Government and its
benefits were to be given to employees with effect from 9th
November, 1998. It was felt that the BIS did not possess
powers to implement the Scheme retrospectively. The policy of
the Central Government was that the Scheme should apply to
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the Scientific Cadre Officers of the BIS only prospectively.
Therefore, the Notification was issued to rectify a mistake.
Regulation 9, as amended in 2004, read as follows:
"9.Promotion to the Posts up to Scientist-G "(1)
The selection for promotions shall be made
from amongst the Scientific Cadre officers
serving in the next lower grade by the
Assessment Committee appointed by the
Director General under sub-regulation (2).
Selection of officers for promotion shall be
made in the same manner as laid down in the
Scheme of Flexible Complementing formulated
from time to time by the Central Government
for promotion of scientists in Scientific
Organizations under the Central Government
subject to the condition that the said Scheme
shall be applicable to the Scientific Cadre
Officers of the Bureau from the date of
commencement of the Bureau of Indian
Standards (Recruitment of Scientific Cadre)
Amendment Regulations, 2004."
8. The original writ petitioners had also urged that other
employees, viz Shri H.J.S. Pasricha, Smt. D.G. Dastidar, Shri
G. Bhaskar, Shri Bijender Kumar Jain, Shri Jayanta Roy
Chowdhury and Smt. Mala Ayyappan, had been given the
benefit of automatic ’promotion’ to Class-D in December 1998,
although by that time the proposed changes had already been
effected.
9. The learned Single Judge allowed the writ petitions of the
respondents, relying upon the decisions of this Court in State
of Andhra Pradesh & Ors. v. Sreenivasa Rao & Ors. (1993 (3)
SCC 285); P. Mahendran & Ors. v. State of Karnataka & Ors.
(1990 (1) SCC 411); P. Murugesan & Ors. v. State of Tamil
Nadu & Ors. (1993 (2) SCC 340); and a decision of this Court,
in CW No.4555/2001 entitled Mr. N.C.Jain & Ors. v. New
Delhi Municipal Council & Ors., decided on September 16,
2003. He rejected the contention of the appellant BIS that by
virtue of the amendments, particularly of 2004, it was no
longer possible to grant benefit of retrospective promotion to
any official or employee.
10. The learned Single Judge held as follows:
"In 1999 the Petitioners had become entitled to
’promotion’ to Group-D and at that time Rules
to the contrary did not exist. The then
prevailing FCS ought to have therefore been
implemented in 1999 itself and had this been
so done the Petitioners would have been
promoted to Group-D after the expiry of five
years service in Group-C. It should also not be
overlooked that the effect of the Notification of
12th August, 2004 was to return to the regime
which entitled the Petitioner to automatic
progression to Group-D on their completing
five years in Group-C.
In these circumstances, the Writ Petitions
are allowed and the respondents are directed
to promote the Petitioners to the post of
Scientist-D in the pay-scale of Rs,12,000-375-
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16,500/- as soon as each of the petitioners
had rendered five years service in the post of
Scientist-C as per the Flexible Complementing
Scheme applicable on the said date."
11. The appellants preferred writ appeals before the High
Court which by the impugned judgment, dismissed the same.
The conclusions of the High Court are set out in paragraphs
13 and 14 of the judgment. The High Court was of the view
that the amendment introduced in 2004 for the first time
sought to introduce a bar against retrospective promotions i.e.
from the date the eligibility conditions of the officials aspiring
for promotion were fulfilled. Before the amendment no such
prohibition or condition existed. It was held that the
amendment is not retrospective in its operation. It was held
that though the term "retrospective" was used, the promotion
under the previous scheme as modified in 1996 and amended
in 1998 and 2002 created an entitlement in favour of the
officer in a feeder cadre to be promoted from the date he
fulfilled the eligibility condition. This, according to the High
Court, is evident from the Notification dated 9.11.1998 and
the amendment to Regulation 9 effective from 2002. The
limiting condition of the date of promotion being after the due
date of application of the notification was in respect of
promotions above the level of Scientist E. The High Court felt
that the rationale for this conclusion was that merely the post
was included in the scheme for the first time on 3.5.2002 and
the right to be considered and granted ’in situ’ promotion to
the petitioners from the dates they acquired eligibility after
completion of the residency period did not stand altered. The
prohibition introduced in 2004 was prospective and could not
take away their right to be dealt with as on the date they
became eligible to be promoted, which indeed was the date
when the promotion was to be effective. It was held that the
respondents were promoted in 2003.
12. In support of the appeals, learned counsel for the
appellants submitted that the true effect of Regulation 9 has
not been duly considered. The issue relates to entitlement of
Scientific Officers in Grade ’C’ to promotion under Scientific
Officer in Grade ’D’. FCS was introduced by a Notification
issued in the year 1983/1986 wherein the same to be
applicable to three levels i.e. S-I level in the pay scale of
Rs.700-1300, S-II level in the pay scale of Rs.1100-1600 and
S-III level in the pay scale of Rs.1500-2000. It was further
provided in the scheme that in exceptional cases the scheme
may be extended to next higher level i.e. S-IV in the pay scale
of Rs.1800-2250 on merits depending upon the extent of
stagnation at that level. In the year 1988 the BIS recruitment
to Scientific Cadre Regulations were promulgated. In order to
give benefit to scientific cadre officers of the BIS, Regulation 9
made the requisite provision.
13. It is pointed out that the order of the learned Single
Judge and the judgment of the Division Bench have failed to
take notice of a very crucial expression i.e. ’from time to time’.
On 16.3.1994 the respondents were promoted to the post of
Scientific Grade ’C’ under the FCS. As the scheme stood then
the respondents would be entitled to further promotion as
Scientists in Grade ’D’ under FCS upon completion of five
years of service i.e. w.e.f. March, 1999 provided the
respondents made it under assessment procedure laid down
by BIS. Before the respondents became eligible for promotion
the scheme itself was modified on 9.11.1998 where the
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minimum residency period for promotion was reduced from
five years to four years. However, the number of years in
which the Scientific Officer became eligible was to be
determined under a graded scheme depending upon the merits
in the ACR. Under the revised scheme of 1998 the promotion
under FCS was made more rigorous providing more emphasis
on evaluation of scientific and technical knowledge so that
only scientists with demonstrable achievements or higher level
of technical merit would be recommended for promotion under
the FCS. Under the revised scheme, respondents became
eligible for promotion in Scientists grade ’D’ after completion of
7 years of service in the Grade of Scientists Grade ’C’. Under
the amended scheme of 9.11.1998 Scientists in Grade ’F’ as
well as in Grade ’G’ were also included for being given the
benefit of FCS. Since the regulations of 1998 more
particularly, Regulation 9 provided for the benefit of FCS only
upto Scientists Grade ’E’, there was necessity to amend the
Regulation so that Scientists Grade ’F’ and ’G’ could also be
given the benefit. With effect from 3.5.2002, Regulation 9 was
amended.
14. It is submitted that before the respondents became
eligible the scheme itself had undergone a change and 1986
scheme had been superseded in view of introduction of the
new scheme on 9.11.1998. There was no vested right to be
considered for promotion merely on completion of 5 years of
service. The High Court erroneously held that even if the
amendment existed there was vested right. In essence, it was
submitted that both the learned Single Judge as well as the
Division Bench committed a manifest mistake by holding that
the respondents had a vested right in the year 1999 to be
promoted to the grade of Scientists Grade ’D’ on mere
completion of five years of service. It was also submitted that
out of 180 officers who were covered by the change in the
scheme w.e.f. 9.11.1998 only four had filed writ petitions and
rest accepted the change.
15. In response, learned counsel for the respondents
submitted that the explanatory memorandum at the time of
amendment on 12.8.2004 made the position clear and the
High Court’s view was right. It was clearly stated that the
appellant had no power to implement the scheme
retrospectively. The respondents are entitled to be considered
as per the earlier FCS and promoted in situ w.e.f. 10.3.1999.
Therefore, it was submitted that the appeals deserve to be
dismissed.
16. Under the amended scheme there are gradings according
to the ACRs and the criteria for being considered for promotion
under the FCS have been laid down. They read as follows:
"(a) All officers will be first screened on the
basis of gradings in the Annual Confidential
Reports (ACRs) for consideration for
promotion; the ACRs should be assessed on a
10 point scale giving 10 marks for
"outstanding", 8 marks for "very good", 6
marks for "good", 4 marks for "average" and 0
for "poor" and only those officers who satisfy
the minimum residency period linked to their
performance as
Number of years in the grade
3 4 5 6 7
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8
Minimum percentage for eligibility
Scientist B to 90% 80% 70% 65% 60% \005.
Scientist C
Scientist C to \005 90% 80% 75% 70% 60%
Scientist D
Scientist D to \005 90% 80% 75% 70% 60%
Scientist E
Scientist E to \005 \005. 90% 80% 75% 70%
Scientist F
Scientist F to \005 \005. 90% 80% 75% 70%
Scientist G
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. Such a relaxation will be
limited to a maximum of two occasions in their
entire career."
17. The revised scheme of 1998 shows the assessment norms
for promotion. Definite focus was on evaluation of scientific
and technical knowledge. Under the revised scheme the
respondents became eligible for promotion on completion of 7
years of service. Undisputedly, the Regulations of 1998 in
Regulation 9 provided that the benefit of FCS was available
upto Scientists grade ’E’. It was therefore necessary to amend
the Regulation so that the Scientists grade "F’ and ’G’ could be
given the benefit of FCS.
18. The crucial expressions in the Notification of 9th
November, 1998 contain certain stipulations which are as
under. In clause 2 it has been inter-alia stated as follows:
"\005\005.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."
19. Again in Clause 3 it has been stated as follows:
"\005\005\005\005\005\005\005Accordingly, 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
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(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 Not available
_______________________________________________________________________
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"
20. As a bare reading of above quoted clause goes to show
that it was intended to give immediate effect to the decision,
an umbrella Notification G.S.R.No.660(E) dated 9.11.1998 was
being issued. The criteria for promotion have already been
quoted above.
21. Stand before the High Court was that the eligibility was
after 1999 and there was a vested right. It is to be noted that
under the 1998 Regulations also the same could not have
been applied to Grade ’F’ and ’G’ and so the amendment as
noted above was necessary. Learned Single Judge was not
right in holding that in 1999 the respondents had become
eligible for promotion to Grade ’D’ and at that time rules to the
contrary did not exist, overlooking the fact that in 1998 itself
amendment had brought in the prevailing FCS on the basis of
1998 Notification and not under 1986 Regulations. Learned
Single Judge was also not correct in directing promotion
because promotion is not automatic and the Annual
Confidential Reports had to be looked into. The change in
2004 does not in any way cover the respondents.
22. Regulation 9 provided that the promotion of selected
officers under the FCS was to be on the basis of evaluation
from "time to time". That being so, the learned Single Judge
and the Division Bench were not correct in their views. The
appeals deserve to be allowed which we direct. The order of the
learned Single Judge as affirmed by the High Court stands set
aside. There will be no order as to costs.