No Retrospective promotion allowed to Scientists under Flexible Complementing Scheme (FCS)- Delhi HC

Title: UOI versus Vinay Kumar

+ W.P.(C) 12922/2023, CM APPL. 50874/2023

Decided on: December 19, 2023



Facts of the Case:

The respondent, formerly a Senior Research Officer in the Ministry of Water Resources, joined the Department of Scientific and Industrial Research (“DSIR”) as Scientist ‘D’ on deputation on August 28, 2007. He was absorbed as Scientist ‘D’ from August 28, 2009, onward. Despite submitting representations for counting deputation period toward residency in the grade of Scientist ‘D’ for promotion to Scientist ‘E’, these were rejected by DSIR in a letter dated February 21, 2012. The rejection stated that residency would be counted from the absorption date, leading to consideration for promotion on January 01, 2014. Consequently, the respondent was promoted to Scientist ‘E’ on January 15, 2014, under the Flexible Complementary Scheme.

Challenging an Office Memorandum dated December 02, 2014, the respondent filed Original Application No. 4423/2015 before the Central Administrative Tribunal, Principal Bench, New Delhi (“Tribunal”). He argued that the deputation period as Scientist ‘D’ should count towards the minimum residency period for promotion to Scientist ‘E,’ advocating for consideration as of July 1, 2011. It’s worth noting that the respondent has since been promoted to Scientist ‘F’ as of January 27, 2020.

The present writ petition challenges an order dated March 10, 2023, issued by the Tribunal in Original Application No. 4423/2015. The Tribunal, relying on the judgment of a co-ordinate bench in Union of India & Anr. v. O.P. Gaba, W.P.(C) 4751/2011, decided on July 11, 2011, directed the respondents to grant notional benefits to the applicant. However, the monetary benefits were limited to the petitioner for three years preceding the filing of the Original Application. The Tribunal instructed completion of this exercise within 120 days of receiving a certified copy of the order, and no costs were awarded.

Laws Involved:

Department of Science and Technology Group ‘A’ Gazetted posts (Non-Ministerial, Scientific and Technical) Rules,1975

Department of Science and Technology Group ‘A’ Gazetted posts (Non-Ministerial, Scientific and Technical) Rules, 2004

Department of Science and Technology Group ‘A’ Gazetted posts (Non-Ministerial, Scientific and Technical) Rules, 2013

Issues framed by the Court:

  1. Whether the applicant is eligible for in-situ promotion under FCS?
  2. Whether the judgment in the case of O.P. Gaba is applicable to this case?
  3. What is the seniority of the petitioners compared to Respondent 5 in the post of DIG?

Courts Judgment and Analysis:

The Tribunal allowed the OA in favor of the applicant, stating that the impugned order dated 08.06.2010 is illegal. The impugned order was quashed and set aside. 

The respondents were 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.

A Cordinate bench of this Court dismissed the writ petition filed by the Union of India challenging the decision of the Tribunal.

The Tribunal found that the expression “on a regular basis” in the 1975 Rules cannot be interpreted to mean as on absorption in the CBI as SP. Respondent 5 satisfied the eligibility test of the 1975 Rules for consideration for the post of DIG. The Division Bench concluded that the services rendered as Senior Scientific Officer on deputation with the respondent can be regarded as regular service in the grade/scale.

The regular services rendered, excluding ad-hoc service/non-qualifying service, in a post shall count for the purpose of review for promotion to the next higher grade under the Flexible Complementing Scheme (FCS).

The eligibility criteria for in-situ promotion under FCS include proven merit and records of research. Only regular Scientists of the Department of Science and Technology are eligible for FCS promotion. There shall be no retrospective promotions under FCS. The promotions under FCS are limited to posts carrying a grade pay of Rs. 10,000/- or lower. The process for assessment for FCS promotion is undertaken twice a year, on January 1st and July 1st. Field experience of at least two years and five years respectively is essential for promotion to Scientist ‘F’ and Scientist ‘G’ grades respectively.

The Court held that the applicant is eligible for in situ promotion under FCS. The judgment in the case of O.P. Gaba is not applicable to this case. The seniority of the petitioners compared to Respondent 5 in the post of DIG needs to be determined. The impugned order dated 08.06.2010 is illegal and has been quashed and set aside.

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Written by- Aditi

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