1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. JUDGMENT Director General Council of Scientific and Industrial Research (CSIR) & others. Versus J.S. Sharma (deceased) & others. DB CIVIL WRIT PETITION NO.3451/2005. Under ARTICLE 226 & 227 OF THE CONSTITUTION OF INDIA. DATE OF ORDER: 24th September, 2010. PRESENT HON'BLE MR. JUSTICE ARUN MISHRA HON'BLE MR. JUSTICE SATYA PRAKASH PATHAK Mr. V.S. Gurjar for the petitioners. Mr. S.B. Mathur for the respondent. AS PER, HON'BLE ARUN MISHRA,J. By filing this writ petition, the legality of the order dated 24.9.2004 passed by the Central Administrative Tribunal, Jaipur Bench, Jaipur in Original Application No.395/2002 has been assailed. Original Application was preferred by J.S. Sharma who died during the pendency of the original application. His legal representatives were substituted. The relief prayed in the application was with respect to next higher grade of Scientist under erstwhile bye-law 71(b). 2 Vide orders dated 30.10.2001 (A/1) and 30.10.2002 (A/2) issued by the Council of Scientific & Industrial Research (CSIR), representation for granting merit promotion under Byelaw 71(b) was rejected. A prayer was made to quash the aforesaid orders and to accord benefit of promotion with effect from 1.2.1987 of Scientist-F in pay scale of Rs. 5100-6300, to fix his salary for the subsequent period and to allow all consequential benefits including pensionary benefits admissible to him under the Rules. Deceased J.S. Sharma was appointed on 1.11.1957. He was given promotion in different grades of Scientist. He was ultimately promoted as Scientist E-II with effect from 1.2.1982 in the pay scale of Rs.4500-5700 with basic pay of Rs.4650/- per month. The deceased employee retired on 30.6.1994. His case was that he having completed the residency period of five years as Scientist E-II on 1.2.1987, submitted an application which was duly forwarded and recommended by the Director, CBRI to the Director General, CSIR that his promotion as Scientist-F be made effective from the stipulated assessment period as applicable in all the merit and normal assessment schemes for that purpose. The grading given to him was 'outstanding'. His application proforma was forwarded to the CSIR. The two referees approved by the CSIR also gave their assessment as 'outstanding'. His case was duly recommended by the CBRI, RAC to CSIR for the purpose of clearing the case but despite this his case was not considered by the committee for merit promotion. The applicant received a letter 3 dated 11.7.1997 (A-6) from the respondents that no case of merit promotion/advance increments has been processed and such cases will be considered only when a decision to operate the Merit Promotion Scheme is taken. By another letter dated 16.11.1998 (A-7), the deceased employee was informed that as per instructions given by the CSIR, the scheme of merit promotion under MANAS (revised) was under consideration, hence for optees of erstwhile bye-law 71(b) merit promotions were kept in abeyance. Having failed to obtain relief despite of representation, the original application has been preferred. Beside the objection as to limitation, it was admitted that the case of the applicant was to be examined under the erstwhile bye-law 71(b) being the optee of merit Promotion Advance Increment (MP-AI) Scheme. The said scheme was not operated effectively although some exercise was done to call for the particulars of the employees for grant of benefit as another scheme Merit and Normal Assessment Scheme (MANAS) was being revised. It was decided by the Director General, CSIR that since the scheme under MANAS(R) was not being operated, therefore, MP-AI scheme should also not be operated for the optees of bye-law 71(b) till the scheme is revised and a final decision is taken. The original applicant filed certain documents along with rejoinder indicating that vide office memorandum dated 17.1.2003 (A-22), K.C. Naithani and N.N. Bhise who retired on 4 30.6.1998 and 31.5.2000 respectively were optees for promotion for the post of Scientist E-II to that of Scientist-F under the normal assessment scheme of the revised MANAS, have been promoted to the higher post of Scientist-F with retrospective effect. The Tribunal has found that the case of the deceased employee was recommended by various authorities including two referees approved by the CSIR for promotion to Scientist-F after completing of five years of residency period as Scientist E-II on 1.2.1987. This fact was not disputed. Final selection was deferred on the ground that decision was to be taken on merit promotion. The reason for deffering the case of the original applicant was that since the scheme under MANAS (R) was not being operated, therefore, MP- AI scheme should also not be operated for the optees of bye-law 71(b). Under normal assessment scheme of MANAS (R), benefit was given with retrospective effect in respect of promotion of Scientist E-II and Scientist-F. It was incumbent upon the respondent to extend the benefit of assessment promotion to Scientist E-II to the grade of Scientist-F in respect of optees of bye-law 71(b). The Tribunal has also observed that the case was adjourned from time to time to consider the case of the original applicant in the light of subsequent events but nothing tangible has been done by the respondents. The action has been found to be arbitrary and discriminatory. Thus, the application has been allowed and a direction has been issued to place the matter of the original applicant before assessment committee for the 5 assessment promotion to the next higher grade of Scientist-F under erstwhile bye-law 71(b) and on the basis of recommendations so made by the assessment committee, if the original applicant is found fit for grant of assessment promotion to the grade of Scientist-F, he shall be extended the benefit of assessment promotion from the retrospective due date as was done in the case of assessment promotion of Scientists E-II to the grade of Scientist-F under normal assessment scheme of MANAS (R). Such exercise will be done within a period of three months from the date of receipt of a copy of the order. Other consequential benefits have also been ordered to be extended accordingly. Aggrieved by the order passed by the Central Administrative Tribunal, the instant wirt petition has been preferred. Shri V.S. Gurjar, learned counsel appearing on behalf of the petitioner has submitted that MP-AI scheme for optees of bye-law 71(b) was not being operated, thus, no case was made out so as to issue direction by the tribunal. Shri S.B. Mathur, learned counsel appearing on behalf of the respondents has supported the order passed by the Central Administrative Tribunal. After hearing learned counsel for the parties, we are of the opinion that no reason has been advanced why the benefit of assessment promotion was not extended to the scientists covered under MPAI scheme. It is not disputed on facts that the benefit was extended to the optees of MANAS scheme. The decision 6 taken to with hold the promotion exercise of conferring benefit upon petitioner of MPAI scheme was due to the fact that final decision was yet to be taken with respect to MANAS (R). The benefit has been extended to the incumbents of MANAS (R) with retrospective effect. No reason was assigned why after the decision was taken to operate MANAS scheme and the benefit was conferred with retrospective effect why the case of the applicant was not considered with retrospective effect when it was due for consideration. The MPAI scheme available for optees of bye-law 71 (b) provided for promotion to the grade of Scientist F from the grade of Scientist E-II with stipulation that 50% of the scientists eligible during a particular year would be promoted if found suitable. It was also not in dispute that such a promotion was to be granted after completion of five years residency period as Scientist E-II. These requirements were fulfilled by the original applicant on 1.2.1987 and his case was also recommended for promotion to Scientist-F by various authorities including two referees approved by the CSIR and his performance was rated 'outstanding'. In view of aforesaid discussion, we find that there is no illegality in the order passed by the Central Administrative Tribunal granting the aforesaid relief. 7 Resultantly, the writ petition being devoid of merits deserves to be dismissed and the same is hereby dismissed. However, we leave the parties to bear their own costs. (SATYA PRAKASH PATHAK),J (ARUN MISHRA),J. BBLM