Allowed

Bashir Mohammed Pathan and Ors. v. Indian Institute of Geomagnetism (Iig), through Director and Ors.

Bombay HC2 May 2014WP/385/2014

Case brief

AI extract

What is this about?

This court upheld that in situ promotion under the Flexible Complementing Scheme must be granted from the date an officer becomes eligible, not a uniform date. Petitioners were entitled to retrospective benefits.

What did the court decide?

Petitioners directed to be treated as in situ promoted with effect from respective dates of eligibility, responses to modify order of 19.7.2013 and grant consequential benefits.

Bashir Mohammed Pathan and Ors. Vs Indian… — Pension and Retirement Benefits | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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APPELLATE SIDE CIVIL JURISDICTION

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WRIT PETITION NO.385 OF 2014

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1] Bashir Mohammed Pathan s/o. ] Lal Mohammed Pathan, aged 60 yrs. ] Occ.: Retired, R/o.1103, B/1, Anand ] Krupa Tower C.H.S, Hajuri Chowk,Wagle ] Estate, Thane (E), Dist. Thane, ] State of Maharashtra, pin code:400604 ] 2] Ramakant Laxman Asinkar s/o. ] late Shri. Laxman Ganpat Asinkar, ] Age 57 yrs., Occ. Service ] R/o. C/14, Vijay Apartment-II, Vijay Nagari ] Annex, Waghbil Naka, Ghodbunder Road, ] Thane (West), Dist. Thane, ] State of Maharashtra, pin code:400607 ]

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3] Chappidi Divakar Reddy, s/o. ] Chappidi Pedda Konda Reddy, aged 57 yrs] occ. Service, R/o. G-271 Raghunath Vihar ] Sector-14, Kharghar, Navi Mumbai, ] State of Maharashtra, pin code:410 210 ]

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4] Shyamoli Mukherjee d/o.Jnanedra ] Nath Joardar, Age 46 yrs., Occ. Service ] R/o. A-402, Garden Tower, Lokhandwala ] Compex, Kandivali (E), Mumbai, ] State of Maharashtra, pin code:400101 ]

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5] Ashwini Kumar Sinha s/o Hari Prasad] Srivastava, Age 47 yrs., Occ.Service ] R/o. 4-Cini Homes, Plot No.262, Sector-21 ] Nerul (E), Navi Mumbai-400 706. ] ….Petitioners

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Vs.

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1] Indian Institute of Geomagnetism ] (IIG) through the Director, having office ] at Kalamboli Highway, New Panvel, Navi ] Mumbai-410 218. ]

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2] Department of Personnel and ] Training (DOP& T) through the Secretary ] having office at : North Block, New Delhi ] 110 001. ]
3] Union of India, through Secretary ] to the Government of India, Department of ] Science and Technology, Technology ] Bhavan, New Mehrauli Road, New Delhi ] -110016. ]
4] Governing Council through ] its Chairman, The Indian Institute of ] Geomagnetism (IIG), having office at ] at Kalamboli Highway, New Panvel, Navi ] Mumbai-410 218. ]		….Respondents.

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Mr.Rahul Walia for the Petitioners. Mr. R.R. Shetty for Respondent Nos.1 & 4.

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CORAM : ANOOP V. MOHTA AND M.S.SONAK, JJ.

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Date of Reserving the Judgment : 28.04.2014 Date of Pronouncing the Judgment : 02.05.2014

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JUDGMENT:- (PER M.S. SONAK, J.)

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1 Rule. Rule is made returnable forthwith with the consent of the parties.

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2 The Petitioners on behalf of themselves, as also 33 other Scientific officers (listed in Exhibit-A to the petition) employed with the Indian Institute of Geomagnetism (IIG) impugn the decision / order dated 19.7.2013 to the extent it grants them in situ promotion under the Flexible Complementing Scheme (FCS) with effect from 1.1.2013, instead of the appropriate

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date/dates upon which they became eligible to obtain such promotion/upgradation.

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3 There is no dispute that IIG answers the definition of State within the meaning assigned to this term under Article 12 of the Constitution of India.

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4 There is no dispute that the FCS does not contemplate actual promotion to a higher post or position, but only involves financial upgradation, which would be personal to the incumbent. There is no dispute that the Petitioners have qualified to avail in situ promotion under the FCS in pursuance of recommendations made by the Committee appointed for the precise purpose. The only dispute concerns the date from which such in situ promotion needs to be granted to the Petitioners. As per the order dated 19.7.2013, the Respondents have granted such in situ promotion to each of the Petitioners with effect from uniform date 1.1.2013. The case of the Petitioners, however, is that in situ promotion under the FCS has to be granted with effect from the dates, when the respective Petitioners became eligible for grant of such promotion.

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5 The promotion review committee under the FCS, had in fact recommended grant of in situ promotion to the Petitioners with effect from the respective dates on which they attain their eligibility. In so far as the Petitioners are concerned, the respective dates are as follows:

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SR.NO	EMPLOYEE NAMES	DATE OF ELIGIBILITY
1	B.M. Pathan	1.1.2012
2	R.L. Asinkar	1.1.2011
3	C.D. Reddy	1.07.2011
4	S. Mukherjee	1.7.2011
5	N. Basavaiah	1.7.2012
6	R.V. Reddy	1.7.2011
7	A.K. Sinha	1.1.2012
8	A.T. Deshmukh	1.1.2011
9	R.N. Maurya	1.1.2011
10	B.D. Kadam	1.7.2011
11	A.G. Patil	1.1.2012
12	S.Banola	1.1.2012
13	S.B. Waknis	1.7.2011
14	V.J. Jacob	1.7.2011
15	Ganpat Surve	1.7.2011
16	Smita Chandra	1.1.2012
17	P.K. Birthare	1.7.2012

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18	Rakesh Nimje	1.7.2012
19	P.Patro	1.7.2011
20	B.I. Panchal	1.7.2011
21	S.P. Sawant	1.1.2012
22	K.Unnikrishnan Nair	1.1.2011
23	Satish Kumar	1.7.2012
24	Jeeva	1.1.2012
25	P. Elango	1.7.2012
26	Gopal C. Rathod	1.1.2012
27	M. Sridharan	1.7.2011
28	Anil Iype	1.7.2011
29	Mahesh K. Choudhary	1.7.2011
30	Narayan Gadai	1.7.2011
31	Meterbridge Nonkhlaw	1.7.2011
32	Piyush Das	1.7.2011
33	P.T. Patil	1.7.2012
34	Manohar Lal	1.1.2011
35	K. Vijaykumar	1.7.2012
36	Prabhakar Tiwari	1.7.2012

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37	R. Nishad	1.7.2011
38	J.A. Ahangar	1.7.2012

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The aforesaid is an extract from out of the recommendations made by the review performance committee.

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6 Mr. Rahul Walia, the learned counsel appearing for the Petitioners

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submitted that the issue raised in the present petition is no longer res integra . The Delhi High Court in the case of S.K. Murti vs. Union of India & ors. , [Writ Petition No. 14263 of 2004 decided on 05.10.2010] , in the context of FCS has ruled that in situ promotions have to be granted from the date the officers attain eligibility and not when the review performance committee actually makes its recommendation or from any other uniform date. The decision of the Delhi High Court has been upheld by the Supreme Court in Civil Appeal No. 6864 of 2011 decided on 02.05.2011. Accordingly, Mr. Walia submitted that the grant of in situ promotion from 01.01.2013 and its consequent denial from the date the scientific officers attained eligibility, is ex facie arbitrary, illegal and unconstitutional.

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7 Mr. R.R. Shetty, learned counsel appearing for Respondent Nos.1 and 4 submitted that promotions are to be normally granted with prospective effect. In the present case, the promotion review committee had no authority to recommend promotion with effect from retrospective dates. In such circumstances, grant of in situ promotion with effect from

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1.1.2013 is legal and proper.

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8 The rival contentions now fall for our determination.

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9 There is certain difference between promotion per se and in situ promotion as contemplated by FCS. The FCS does not contemplate de facto promotion to the next higher post. In situ promotion contemplates financial up-gradation in the same post. In situ promotion is personal to the incumbents and post held by them consequent to in situ promotion would revert to the lowest grade in the group on vacating their posts. Accordingly, the principle that promotions are normally not to be given with retrospective effect, will not be attracted to the present fact situation.

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10 The Delhi High Court in Writ Petition (C) No.14263 of 2004 ( S.K. Murti vs. Union of India & ors. ) had occasion to consider this very issue in the context of FCS. In its judgment and order dated 5.10.2010, the Delhi High Court upon considering the FCS and the circumstance that in situ promotions have no nexus with the vacancy position ruled that in situ promotions have to be granted from the date of eligibility and not from the date when the Review Performance Committee actually makes its recommendation.

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11 The Union of India carried the matter in appeal before the Supreme

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Court of India (Special leave to Appeal (Civil) No.6864 of 2011), which was decided by the Supreme Court on 2.5.2011. The view taken by the Delhi High Court to the effect that in situ promotions ought to be granted from the date of eligibility came to be upheld. The relevant observations from the judgment and order passed by the Supreme Court of India on 2.5.2011, reads thus:

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'2. Flexible Complementing Scheme (FCS) with effect from the date of eligibility was allowed. We have heard Smt. Indira Sawhney, learned counsel for the petitioners and Mr. Jitendra Mohan Sharma, learned counsel for the respondent, who has entered on caveat and carefully perused the record. The respondent, who was working as Scientist Grade-D in the Botanical Survey of India became eligible for promotion under FCS with effect from 1.1.1999. However, on account of delayed convening of the Departmental Review Committee/Selection Committee, his promotion was delayed and by an order dated 20.10.2000, he was promoted with effect from 19.9.2000. The respondent and 10 other Scientists of Botanical Survey of India filed Original Application No.826/203 for directing the petitioners to promote them with effect from the date of eligibility i.e. 1.1.1999. The Tribunal dismissed the original application and held that in view of the clarification given in O.M. Dated 10.11.1998, the applicants were not entitled to promotion with retrospective effect. The review petition filed by the respondent was dismissed by the Tribunal vide order dated 14.1.2004. However, Writ Petition (C)No.14263/2004 filed by the respondent was allowed by the Division Bench of the High Court and the petitioners were directed to give him all the benefits on the basis of deemed promotion with effect from 1.1.1999. In our view, reasons assigned by the High Court for directing the petitioners to promote the respondent with effect from the date of acquiring the eligibility are legally correct and the impugned order does not suffer from any legal error warranting interference under Article 136 of the Constitution. It is not in dispute that vacancies existed when the Departmental Review Committee considered the case of the respondent and other similarly situated persons

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for promotion. It is also not in dispute that in terms of paragraph 51.25 of the Vth Pay Commission Recommendations, the Departmental Review Committee/ Assessment Board was required to meet every six months, i.e., in January and July and the promotions were to be made effective from the date of eligibility. Therefore, it is not possible to find any flaw in the direction given by the High Court. The special leave petition is accordingly dismissed. Since the time fixed by the High Court for compliance of the direction given by it has already expired, we direct the petitioners to do the needful within four weeks from today. Similar order shall be passed for all similarly situated persons despite the fact that they may not have approached the High Court questioning the order passed by the Tribunal. This direction is being given to avoid further litigation in the matter.

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(Emphasis supplied)

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12 From the aforesaid, it is clear that the issue raised in the present petition stands answered in favour of the petitioners by the Delhi High Court and the Supreme Court of India.

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13 There is no dispute that promotion review committee in fact recommended grant of in situ promotion to Scientific Officers listed in paragraph 5 of this judgment and order with effect from respective dates on which they attained their eligibility. The respective dates on which Scientific Officers attained their eligibility has also been set out in the list at paragraph 5 of this judgment and order. There is no dispute whatsoever in this regard as well. As such there is no reason to remand the matter to the promotion review committee once again.

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14 Accordingly, the Petition is liable to succeed. The Petitioners and

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other Scientific Officers listed in paragraph 5 of this judgment and order are entitled to benefit of in situ promotion with effect from the respective dates which they may have attained their eligibility, alongwith all consequential benefits.

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15 Although Mr. Walia made a plea that the Respondents be directed to pay interest at the rate of 21% per annum upon arrears, in the facts and circumstances of the present case, we are not inclined to award any interest. This is because no mala fide as such can be attributed to the Respondents in adopting interpretation which they did. Besides, the Scientific Officers have already been awarded benefits of in situ promotion with effect from 1.1.2013. Accordingly, we decline to consider the plea for award of any interest.

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16 Rule is made absolute to the aforesaid extent. The Respondents are jointly and severally directed to treat the Petitioners and other Scientific Officers listed in paragraph 5 of this judgment and order as in situ promoted with effect from respective dates on which they attained eligibility. On this basis, the Respondents are jointly and severally directed to suitably modify the decision/order dated 19.7.2013 and further grant to the Petitioners and other Scientific Officers listed in paragraph 5 of this judgment and order arrears and all other consequential benefits within twelve weeks from today.

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