* HON’BLE SRI JUSTICE GHULAM MOHAMMED AND * HON’BLE SRI JUSTICE G.BHAVANI PRASAD +WRIT PETITION No.22349 of 1999 % Dated:10-09-2008 +WRIT PETITION NO.22349 of 2007: Between: # The Union of India rep. By Secretary, Govt. of India, Ministry of Water Resrouces, Shramshakti Bhavan, New Delhi and another. .. Petitioners and $ V.Sambasiva Rao and others. .. Respondents < GIST : >HEAD NOTE: ? Cases referred: (2008) 1 SCC 683 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TENTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE G.BHAVANI PRASAD WRIT PETITION NO : 22349 of 1999 Between: 1 Secretary Govt of India The Union of India water Resources Shramshakti Bhavan , New Delhi 2 The Chairman Central Ground Water Board Ministry of Water Resources , C.G.O Complex , N.H.IV, Fairdabad ..... PETITIONER(S) AND 1 V.Sambasiva Rao son of V.Nargeshwar Rao working as Assistant Chemist in Central Ground Water Board at Hyderabad Region, Hyderabad 2 P.Vijayakuamr son of P.Ramachander working as Assistanth Hydorgeologists in Central Ground Wate Board at Hyderabad Region, Hyderabad 3 A.G. Sugriva Reddy son of A.M. Gunavan Reddy working as Assistanth Hydorgeologists in Central Ground Wate Board at Hyderabad Region, Hyderabad 4 K.Dwaraknath son of KAV Sivaramasarma working as Assistanth Hydorgeologists in Central Ground Wate Board at Hyderabad Region, Hyderabad 5 R.V.Vidyasagar son of R.V.Swamy working as Assistanth Hydorgeologists in Central Ground Wate Board at Hyderabad Region, Hyderabad 6 K.Lakshminarayana son of Nagaiah working as Assistanth Hydorgeologists in Central Ground Wate Board at Hyderabad Region, Hyderabad 7 B.Saibad son of Late B.A.Murhty working as Assistanth Hydorgeologists in Central Ground Wate Board at Hyderabad Region, Hyderabad 8 Mrs. Sabera Aijaz W/o Aijaz Akthar working as Assistanth Hydorgeologists in Central Ground Wate Board at Hyderabad Region, Hyderabad 9 B.Umamaheswara Rao son of B.Radharkrishnamurthy working as Assistanth Hydorgeologists in Central Ground Wate Board at Hyderabad Region, Hyderabad 10 M.Venkata Gopal son of M.Subbarao working as Assistanth Hydorgeologists in Central Ground Wate Board at Hyderabad Region, Hyderabad .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to to issue a writ or order or direction , more particularly one in nature of Writ of Certiorari calling for records in O.A.NO. 1032/96 on the ﬁle of central Adminstrative Tribunal, Hyderabad Bench and Quash the order dt. 19/04/1999 din the said OA. Counsel for the Petitioner:MR.A.RAJASHEKAR REDDY (ASST SOLICITOR GEN) Counsel for the Respondent No.: MR.G.VIDYASAGAR The Court made the following : . HON’BLE SRI JUSTICE GHULAM MOHAMMED AND HON’BLE SRI JUSTICE G.BHAVANI PRASAD Writ Petition No.22349 of 1999 ORDER: (Per Hon’ble Sri Justice Ghulam Mohammed) Union of India ﬁled this writ petition seeking to quash the order dated 19-4-1999 passed in O.A.No.1032 of 1996 on the ﬁle of Central Administrative Tribunal, Hyderabad Bench. At the outset, it is to be noted that this writ petition is listed before us pursuant to the common order passed by the Hon’ble Supreme Court in I.A.Nos.25-48 and 49-72 in Transfer petition (C) Nos.197-206 and 208-220 of 2005 dated 17-04-2007, by which the present writ petition was also remanded to this Court for deciding the same in accordance with law, after giving opportunity of hearing to all the parties. 2. The details relevant for deciding this writ petition are that the respondents herein ﬁled the above O.A. with the following the following relief: “ …to declare the exclusion of the posts of Assistant Chemist and Assistant Hydrogeologists in the pay scale of Rs.2000 to 3500 or Rs.650 to 1200 (pre-revised) scale from the purview of Central Ground Water Board (Group-A posts) Recruitment Rules 1987 (now under repeal) as also Central Ground Water Board (Group-A posts) Recruitment Rules, 1995 as illegal, arbitrary and discriminatory and to declare further as resulting in the deprival of the promotional avenues of the Applicants due to the operation of the said illegal, arbitrary and discriminatory Rules and to issue consequential directions to the Respondents to include Grades of Assistant Chemists and Assistant Hydrogeologists within the purview of Central Ground Water Board (Group-A posts) Recruitment Rules, 1995 w.e.f. 06-06-1987 i.e. the date of coming into force of Central Ground Water Board (Group-A posts) Recruitment Rules of 1987 with all attendant and consequential beneﬁts including promotions and further promotions, ﬁxation of seniority and arrears of diﬀerence of pay and allowances of each Grade and promoted Grade.” The first respondent is working as Assistant Chemist in Central Ground Water Board at Hyderabad while the other respondents are working as Assistant Hydrogeologists in the same Board and the pay-scale applicable to their posts is Rs.650-1200 (pre-revised) and Rs.2000-3500 after revision. The posts held by respondents fall under Group-B (Class-II) Gazetted posts. It was the case of respondents that the posts of Junior Chemist/Junior Hydrogeologists, Senior Chemist/Senior Hydrogeologist and Director, are superior to the posts held by them, and that the said posts fall in the category of Group-A, and carry the pre- revised pay scale of Rs.700-1300; Rs.1100-1600 and 1200-3000 respectively. In order to prevent the stagnation of employees in a particular post and to encourage merit and talent, the Department of Science and Technology laid down certain guidelines vide letter No.DST/MS/1(45)/82 dated 14/22-11-1983 pursuant to the recommendation of Third Pay Commission. Thus, the ‘Flexible Complementing Scheme’ (for short ‘FCS’) was introduced in the Scientiﬁc Departments to ensure that the promotion of an Oﬃcer in Scientiﬁc service from one grade to another take place after putting in a prescribed period of service. Further case of respondents was that as per the said letter, the FCS was made applicable to Group-A Oﬃcers and subsequently, extended to the scientiﬁc posts carrying the pay scale of Rs.650-1200 vide Oﬃce Memorandum No.A-42014/2/86- A dated 28-5-1986. It is averred that the Central Ground Water Board is a scientiﬁc organisation under the control of Ministry of Water Resources and as such, the posts held by respondents are entitled to the benefit of FCS. 3. While so, the grievance of respondents before the Tribunal was that the Department of Science and Technology framed ‘Central Ground Water (Group-A Posts) Recruitment Rules, 1987’ (for short ‘1987 Rules’) contrary to the earlier recommendation, thereby excluding the posts of Assistant Chemist and Assistant Hydrogeologist from the purview of FCS and denying the beneﬁt of FCS. The respondents also contended that the 1987 Rules are also contrary to the guidelines laid down by the Department of Science and Technology dated 22-11-1983 as modiﬁed by O.M. dated 28-05- 1986, which is much prior to 1987 Rules. The respondents having been excluded from the purview of 1987 Rules, seek direction to include the Grades of Assistant Chemists and Assistant Hydrogeologists within the realm of ‘Central Ground Water Board (Scientiﬁc Group-A Posts) Recruitment Rules, 1995 (for short ‘1995 Rules’) and grant consequential beneﬁts with eﬀect from 06-06-1987 being the date on which 1987 Rules came into force, including promotions, ﬁxation of seniority and arrears of salary in each grade and promoted grade. 4. The case of the petitioner – Union of India before the Tribunal was that the beneﬁt of FCS applicable to Group-A Scientists cannot be extended to Group-B of Central Ground Water Board, which was clariﬁed by the Department of Science and Technology and that the recommendation of Fifth Pay Commission was that in view of the ‘Assured Career Progression Scheme’, the FCS has to be withdrawn for Group-B, C and D posts and the said recommendation is under consideration by the Government. Further, even the Group-A scientists covered by FCS get their promotion to the next higher grade on completion of the prescribed residency and the respondents are entitled to 50% quota in the promotions. The Tribunal after considering the rival contentions, directed the petitioners herein to extend the beneﬁt of FCS to respondents and if necessary, by reviewing 1995 Rules and consider the claims of respondents for in situ promotion to Junior Chemist/Junior Hydrogeologist from the date of coming into force of 1987 Rules. 5. Heard learned Assistant Solicitor General for the petitioners and learned counsel appearing for respondents and perused the record. 6. Learned Assistant Solicitor General contended that the respondents have been holding Group-B posts and as such, the Government did not extend the beneﬁt of FCS to them. He further contended that the Group-A oﬃcers are covered by FCS and the scheme is not applicable to Group-B posts and that the respondents have right to get 50% quota in promotions to the grade of Scientist-B. He also contended that the Tribunal had committed an error in directing the Central Government to review the 1995 Rules, if necessary, and extend the beneﬁt of FCS; that it is impermissible for the Court to issue mandamus to frame Rules and it is for the rule-making authority to decide the matter; that the internal correspondence among the departments does not confer any right to seek the beneﬁt of FCS. Further, the respondents cannot compare themselves with Group-A oﬃcers as the nature of duties are diﬀerent, so also the channel of promotion. 7. Learned Assistant Solicitor General has relied upon the decision of the Apex Court in DIVISIONAL MANAGER, ARAVALI GOLF CLUB Vs. CHANDER HASS [1] wherein it was held that creation and sanction of posts is the prerogative of the executive and legislative authorities and not of the court and as such, the courts cannot direct the authorities to create the post and regularise an employee therein. 8. Sri G.Vidyasagar, learned counsel appearing for respondents has drawn our attention to Oﬃce Memorandum dated 09-11-1998 issued by Government of India, Department of Personnel and Training and contended that consequent upon the assent of the President of India, the Department of Science and Technology, the beneﬁt of FCS was extended to Group-B oﬃcers also who are in the pay scale of Rs.650-1200 and up to the scale of Rs.2500-3000. Learned counsel further contended that when once the President has taken a policy decision, the authorities ought to have amended the Rules so as to include the Group-B oﬃcers also and non-inclusion of such oﬃcers creates anomaly and violates the equality clause. 9. We have considered the rival submissions and perused the material on record. The point that arises for consideration is whether the beneﬁt of FCS can be extended to the respondents, who are admittedly holding Group-B posts? 10. At the outset, it is to be noticed that Central Ground Water Board (Scientiﬁc Group ‘A’ Posts) Recruitment Rules, 1995 have not been challenged before the Supreme Court in Civil Appeal Nos.2600-2601 of 2005 in the case of UNION OF INDIA Vs. S.K.SAIGAL. 11. In this regard, it is relevant to refer to the Oﬃce Memorandum No.A-42014/2/86-Admn.I(A) dated 28-05-1986 issued by the Government of India, Department of Science and Technology, and the relevant portion reads as under: “ Government of India have been considering for quite some time that with a view to enable the Scientiﬁc Departments and scientiﬁc organisations in non-scientiﬁc departments for eﬀective realisation of result-oriented and time-bound programmes of scientiﬁc research and technological development, they should be provided a better executive support system than hitherto available to these departments. The President is now pleased to bring about certain changes in the following areas insofar as the S & T Departments are concerned: i) Finance Procedure ii) Personnel Policy iii) Procurement Management System iv) Technical Support Service (Civil Works) (i) FINANCE PROCEDURE: xxxxx ii) PERSONNEL POLICY: While certain general principles on personnel matters such as reservation, joint consultative machinery, notiﬁcation of vacancies, etc., will continue to be followed strictly, the scientiﬁc departments would otherwise be responsible for administration and management of all aspects of personnel matters relating to scientiﬁc departments. Accordingly, the present requirement of reporting vacancies of all scientiﬁc posts to UPSC for recruitment will not be necessary and scientiﬁc posts will be exempt from the purview of UPSC. Scientiﬁc posts are those which require a minimum educational qualiﬁcation of Masters degree in Science or Bachelors degree in Engineering, Technology, Medicine or equivalent. The duties attached to such posts should also be primarily of a scientiﬁc nature. However, each scientiﬁc department would follow the general principles in recruitment like notiﬁcation of vacancies with qualiﬁcations as prescribed in the recruitment rules, following of reservation rules, etc. They should also constitute search-cum-selection committees for every level, which should have at least 50% members including experts from outside the department. Each department will work out detailed procedure in this regard. 2. Flexible Complementing providing in situ promotion to scientists whose work is satisfactory has already been introduced in scientiﬁc departments. This is, however, at present restricted to the Grades: Rs.700-1300; Rs.1100- 1600 and Rs.1500-2000, with a provision that the total number of posts in the grade of Rs.1500-2000 will not be more than 30% of the total number of posts in the three grades. A limited application of ﬂexible complementing is also permissible to the posts in the scale of Rs.1800-2250. Having regard to the fact that in some scientiﬁc departments there has been induction of scientists in the scale of Rs.650-1200, it has been decided to introduce ﬂexible complementing beginning with the grade of Rs.650- 1200 where this also serves as a direct recruitment grade. It has also been decided to extend the ﬂexible complementing scheme up to the scale of Rs.2500-3000. There will no restriction as regards percentages and full ﬂexibility will be available in all grades up to Rs.2500-3000; proven merit and record of research will be the only criteria. A minimum residency of 5 years in each grade will be required for promotion under flexible complementing.” 12. A reading of the above O.M. makes it clear that the Government of India had decided to extend the FCS in some of the scientiﬁc departments to the Scientists who are in the pay scale of Rs.650-1200. Admittedly, the ﬁrst respondent at the relevant time was working as Assistant Chemist and the other respondents were working as Assistant Hydrogeologists in the Central Ground Water Board at Hyderabad, and the said posts fall under Group-B category and the posts carry pay scale of Rs.650-1200. Apart from this, the communication dated 14/22- 11-1983 of Secretary, Department of Science and Technology to the Ministry of Irrigation under whose control the Central Ground Water Board functions, is to the eﬀect that the Government have approved the implementation of FCS in scientiﬁc departments under its control and a list of scientiﬁc institutions in which the FCS has to be implemented has been annexed thereto. A perusal of the list shows that the Central Ground Water Board is identiﬁed as one of the scientiﬁc institutions to implement the FCS. A close reading of O.M. dated 28-05-1986 reveals that the implementation of FCS is pursuant to the Presidential Order and any Rules framed thereafter ought not to be contrary to the Presidential Order and not take away the beneﬁt to the employees prior to the Rules. All the respondents have been appointed when 1987 Rules were in operation and they were holding Group-B Gazetted posts carrying pay scale of Rs.650-1200 (pre-revised) and post-revised at Rs.2000-3500. 1987 Rules contemplated implementation of FCS in respect of in situ promotions to the oﬃcers of Scientist-B carrying pay scale of Rs.2200-4000 to the higher grades. Thus, the respondents are entitled to the FCS under 1987 Rules. 13. It is pertinent to state that 1987 Rules were repealed and 1995 Rules have come into eﬀect. Though the FCS was sought to be implemented in respect of in situ promotions of departmental oﬃcers in Scientist-B grade to ‘C’ and ‘D’ grades, the scientiﬁc oﬃcers who were in the pay scale of Rs.650-1200, were not included in 1995 Rules. In fact, the communication No.21-6/91-GW/1537 dated 10-8-1994 of Deputy Secretary to Government of India, had been addressed to the Union Public Service Commission in connection with amendment to Central Ground Water Board (Scientiﬁc Group ‘A’ Posts) Recruitment Rules, 1987 wherein certain clariﬁcations were made and the relevant one is as under: “i) Eventhough the proposal for inclusion of Group ‘B’ oﬃcers in the diﬀerent scientiﬁc streams in the scale of Rs.2000-3500 in the Flexible Complementing Scheme was under consideration, a decision was taken with the approval of Secretary (NR) to exclude them as inclusion of Group ‘B’ would have delay further the whole exercise in view of review of Flexible Complementing Scheme.” Thus, the Group-B posts were excluded in view of the delay in review of FCS and not because they are not eligible. It appears the decision to implement FCS for Group-B posts held by the respondents has not been taken so far, pursuant to the said communication. 14. Government of India, Ministry of Personnel, Public Grievances and Pensions, vide its Oﬃce Memorandum No.2/41/97-IPC dated 09-11-1998 had issued further instructions and the relevant portion reads as under: “ It is requested that all the Ministries/Departments, where the Flexible Complementing Scheme is in operation, may initiate action for review of the provisions of the Flexible Complementing Scheme and amend the provisions of the relevant recruitment rules so that the scheme is brought in conformity with the decisions/guidelines being conveyed vide this Oﬃce Memorandum. Results of the review may also be conveyed to the Department of Science and Technology, the nodal department for operation of the Flexible Complementing Scheme. Action for extension of the Flexible Complementing Scheme to other scientiﬁc organizations, where the same is not in operation at present, may be taken in accordance with the decision contained in para-5 of this Office Memorandum. 7. The relevant provisions of Department of Science and Technology Oﬃce Memorandum No.A-42014/2/86-Admn.I(A) dated 02-05-1986 stand amended to the extent the provisions of this Oﬃce Memorandum are at variance with the provisions of the said Office Memorandum.” 15. In the circumstances, the Tribunal ought not to have directed the petitioners to revise 1995 Rules so as to include the beneﬁt of FCS for the Group-B posts. However, having regard to the Presidential Order, which has statutory force, pursuant to which the Department of Science and Technology issued O.M. dated 02-05-1986 and the consequent O.M. dated 09-11-1998, we are of the considered view that the petitioner is under obligation to implement O.Ms dated 02-05- 1986, as modified by OM 09-11-1998 and take further action to implement the FCS in respect of respondents – applicants. 16. Subject to the aforesaid modiﬁcation, the writ petition is dismissed. ___________________________ GHULAM MOHAMMED, J. ________________________ G.BHAVANI PRASAD, J. 10-09-2008 bsc [1] (2008) 1 SCC 683