BUREAU OF INDIAN STANDARDS v. S.K. KANOJIA

Citation: [2007] 10 S.C.R. 574

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, TARUN CHATTERJEE

Case summary

BUREAU OF INDIAN STANDARDS v. S.K. KANOJIA.pdf

Judgment text

BUREAU OF INDIAN STANDARDS v. S. K. KANOJIA OCTOBER 5, 2007 [DR. ARIJITPASAYAT ANDTARUNCHATTERJEE,JJ. ] .. ~ -.... ' Service Law: Bureau ofIndian Standards (Recruitment to Scientific Cadre) Regulations, 1988-Regulation 9-Promotion-Under 'Flexible Complementing Scheme-Amendment of Scheme in 1998- Amendment adopted by the employer· in 2002-Promotion given as per 1998_amendment-Writ Petition claimingpromotion on the basis of unamended-Scheme-Courts below directing promotion on the basis ofunamended Scheme o-n the ground that at the time when the \promotions fell due, amended rules did not exist-On appeal, held: Employees not entitled to promotion under the unamendedScheme- The amendment having been given immediate effect to by the Notification ofthe date prior to the date the promotions fell due as per unamened Scheme, view ofcourts below not correct-Bureau of Indian Standards Act, 1986-s. 38. ~ 'FlexibleComplementaryScheme' (FCS), introduced in 1983/1986..

was adopted by the appellant-Bureau inJ996 after recommendation of Fifth Central Pay Commission. By a Notification dated 9. 11. 1998 changes were introduced in the FCSwhereby benefitofFCSwas based on scientific and technical knowledge; and eligibility for promotion was increased to 7years from 5years. The benefit ofFCSwas also extended to Scientist 'F' and 'G' thereby. The Bureau implemented the change rby amending Regulation 9 ofBureau oflndian Standards (Recruitment to Scientific Cadre) Regulations, 1988 in 2002. The benefit thereunder was to be given w. e. f. 9. 11. 1998. Respondents were working as Scientist 'C' w. e. f1994, in the pay-scale ofRs. 10,000-15,200 in the Bureau. They I were promoted under FCS in 2003 w. e. f. 2001. They filed Writ Petition on the ground thattheywereto be promotedas Scientist-Don completion of5years i. e. in 1999. The Bureau attributed the delay in promotion, to the change in Service Regulations.

During pendency of the petition, another Notification was issued in 2004, again amending Regulation 9 whereby a bar against retrospective implementation ofthe Schemewas introduced. Single Judge allowed the Writ Petitions holding that the petitioners (respondents herein) had become entitled to promotion as Scientist 'D' in 1999 and at that time Rules to the contrary did not exist Division Bench ofHigh Court held that the amendment of2004 being prospective in its operation was not applicable to the employees. The C order ofSingleJudge was upheld. Hence the present appeal.

Allowingthe appeal; the Court HELD: SingleJudge ofHigh Courtwas 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 been bro~ght, in the prevailing Flexible ComplementingScheme on the basis of1998 Notification and not underBureau ofIndian Standards (Recruitmentto ScientificCadre) Regulations, 1988. Clause3 ofNotification dated 9. 11. 1998 goes to show that itwas intend_ed to giveimmediate effectto the decision. The revised scheme of1998 shows the assessment norms for promotion. Definite focus was on evaluation ofscientific and technical knowledge. Uoder the revised scheme the respondents became eligible for promotion on completion of7years ofservice. Undisputedly, the Regulations of1988 in Regulation 9 provided that the benefit ofFCS was available upto Scientists grade 'E'.

Itwas therefore necessary to amend the Regulation so that the Scientists grade "F' and 'G' could be given the benefit of FCS. Single Judge was also not correct in directing promotion because promotion is not automatic and the Annual Confidential Reports had to be looked into. Regulation 9 provided that the promotion ofselected officers under the FCS was to be on the basis ofevaluation from "time to time". That being so, the Single Judge and the Division Bench were not correct in theirviews. The change in 2004 does not in any way cover the respondents. [Paras 17, 20, 21and22] [584-E-F; 585-E-H; 586-A] CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4657 of 2007. From the final Judgment and Order dated 6. 2. 2006 ofthe High Court ofDelhi at New Delhi in LP. A. No. 1689/2005. WITH C. A. Nos. 4658, 4659 and 4660of2007. ~ ·~.... Vikas Singh, A. S. G. , B. K. Sood and Indra Sawhney for the Appellant. J. P. Singh and S. S. Jauhar for the Respondent.

The Judgment ofthe Court was delivered by DR. ARIJIT PASAYAT, J. 1. Leave granted. 2. These appeals are directed against the judgment of a Division \- Bench ofthe 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 oflndian Standards (hereinafter referred to as 'BIS') to promote them as Scientists-Din the pay-scale ofRs. 12000-375-16500 on the date of -~ their completion of 5 years ofservice 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 ofBureau oflndian 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 staffcommittee ofSelection Committee 'A' as the case may be, on the recommendations ofthe Assessment committee appointed by the Director General under sub-regulation (3). Selection ofofficers for promotion shall be made on the basis ofassessment procedure as laid down by the Executive Committee which shall take into account qualifications 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 ofFlexible Complementing formulated from time to time by the Department of Science and Technology for promotion ofScientists in scientific organizations under the Central Government and shall be effective from the date ofeligibility. " 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 ofpay. The relevant residency periods were as follows: Scales of Designation Minimmn Pay Residency period linked to Perfmmance (a) Rs. 8000-13500 ScientistB 3 years (b) Rs. I0000-15200 Scientist C 4 years (c) Rs. 12000-16500 Scientist D 4 years (d) Rs. 14300-18300 ScientistE 5 years 5.

The respondents were in the pay-scale ofRs. 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 H for benefits ofthe FCS linked to the Annual Confidential Reports ofthe 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 ofofficers 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 ofscientists in Scientific Organizations under the Central Government and shall be effective from the date ofeligibility. The Scheme ofFlexible Complementing as formulated by the Central Government vide OM No. 2/41/P1C-97 dated the 9th November, 1998 would be effective for Scientific Cadre Officers upto and inclusive ofthe level of Scientist-E from 9th November, 1998 and for the levels ofScientist-F and Scientist G, the date ofpromotion 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 oflndia, which was later modified vide Department of Science & Technology's OM No. A. 42014/2/86-Admn. l(A) dated the 28th May, 1986. According to this scheme, the ,, promotion ofan 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 ofassessment procedure as laid down by individual organization.

Promotions made under this scheme would be in-situ and with effect from the date oftheir 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 B years ofresidency 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 reportsfor previous five years and interview by the' C Assessment Committee appointed "by the Director General, the officers would be promoted to the next higher grade as per their date ofeligibility. " 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 oftheir eligibility; instead of the promotion rightfully due to them in 1999, they were given the benefit in 2001. During the pendency oftheir writ petitions, another notification was issued on 12- 8-2004, and published in the Gazette of India. By this notification E 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 F retrospectively. The policy ofthe Central Government was that the Scheme should apply to the Scientific Cadre Officers ofthe BIS only prospectively. Therefore, the Notification was issued to rectify a mistake.

Regulation 9, as amended in2004, read as follows: "9. Promotion to the Posts up to Scientist-G "(l) The selection for promotions shall be made from amongst the Scientific Cadre officers serving in the next lower grade by the Assessment Connnittee appointed by the Director General under sub-regulation (2). Selection ofofficers for promotion shall be made in the san1e manner as laid down in the Scheme of Flexible Complementing { 'l formulated from time to time by the Central Government for promotion ofscientists in Scientific Organizations under the Central Government subject to the condition that the said Scheme shall be applicable to the Scientific Cadre Officers ofthe Bureau from the date of commencement of the Bureau of Indian Standards (Recruitment ofScientific 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 ofautomatic '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 ofthis Court in State ofAndhra Pradesh & Ors. v. Sreenivasa Rao & Ors. , [1993] 3 SCC 285; P. Mahendran & Ors. v. State ofKarnataka & Ors. , [1990] 1 SCC 411; P. Murugesan & Ors. v. State ofTamil Nadu & Ors. , [1993] 2 SCC 340 and a decision of this Court, in CW No. 4555/2001 entitled Mr. NC. Jain & Ors. v. New Delhi Municipal Council & Ors. , decided on September 16, 2003. He rejected the contention of the appellant BIS that by virtue ofthe amendments, particularly of2004, 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 itselfand had this been so done the Petitioners would have been promoted to Group-Dafter the expiry offive 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. f ! In these circumstances, the Writ Petitions are allowed and the r respondents are directed to promote the Petitioners to the post of Scientist-0 in the pay-scale ofRs,12,000-375-16,500/- as soon as each ofthe petitioners had rendered five years service in the post ofScientist-Casper 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 1-) ofthe High Court are set out in paragraphs 13 and 14 ofthe judgment. The High Court was ofthe 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 ofthe 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 ofthe officer in a feeder cadre to be promoted from the date he fulfilled the eligibili1:y 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 ofthe date ofpromotion being after the due date ofapplication ofthe notification was in respect ofpromotions above the level ofScientist E. The High Court felt that the rationale for this C( .. 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 perfonnance as Number of years in the grade 3 4 5 6 7 8 Minimum percentage for eligibility Scientist B to 90% 80% 70% 65% 60% Scientist C · Scientist C to 90% 80% 75% 70% 60% ScientistD Scientist D to 90% 80% 75% 70% 60% Scientist E Scientist E to 90% 80% 75% 70% Scientist F Scientist F to 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 oftwo occasions in their entire career. " 17. The revised scheme of 1998 shows the assessment norms for promotion. Definite focus was on evaluation ofscientific and technical knowledge. Under the revised scheme the respondents became eligible for promotion on completion of 7 years of service. Undisputedly, the Regulations of 1988 in Regulation 9 provided that the beneijt ofFCS 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 ofFCS. 18. The crucial expressions in the Notification of9th November, 1998 contain certain stipulations which are as under. In clause 2 it has been inter-alia stated as follows: ".......

It has also been decided that assessment norms for promotions under the Flexible Complementing Scheme should be rigorous with due emphasis on evaluation ofscientific and technical knowledge so that only the scientists who have to their credit demonstrable achievements or higher level ofte9hnical merit are recommended for promotion under the Flexible Complementing Scheme. " 19. Again in Clause 3 it has been stated as follows: "..................... Accordingly, all the posts covered under the Flexible Complementing Scheme shall cany the following unifonn j scales ofpay, designations and the minimum residency period linked ,_; to perfonnance:- Scales of Pay Designation Minimum Residency Period linked to Performance (a) Rs. 8000-13500 Scientist B 3 years (b) Rs. l0000-15200 Scientist C 4 years (c) Rs. 12000-16500 ScientistD 4 years (d) Rs. 14300-18300 ScientistE 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 ofabove quoted clause goes to show that it was intended to give immediate effect to the decision, an umbrella Notifi~ation 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 itselfamendment had been brought in the prevailing FCS on the basis of 1998 Notification and not under 1988 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 ofevaluation 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. K. K. T. Appeals allowed.