ORDER
S.B. Sinha, CJ.
1. This writ petition is directed against a judgment and order dated 29-1-1999 passed by the Central Administrative Tribunal in OA No.1259 of 1997 whereby and whereunder the Original Application filed by the second respondent herein was disposed of directing:
“In view of the foregoing the impugned order dated 9-5-1997 is set aside. The respondents are directed to reconsider the promotion of the applicant to the post of Tradesman-F & G as per the Merit Promotion Scheme. His promotion to the Tradesman-D should be updated to the year 1986 in accordance with the Merit Promotion Scheme. However his pay in the Tradesman-D should be fixed
notionally and he is eligible for arrears if any from the date he actually shouldered the responsibility of Tradesman-D. In case he is promoted to the higher grades of Tradcsman-D the fixation of pay in higher grades will be done on the basis of his national pay fixation, in Tradesman-D category and arrears if any, on that basis will be awarded to him”.
2. The basis fact of the matter is not in dispute. The second respondent herein was an employee at all material times and still is working in Nuclear Fuel Complex, Department of Atomic Rncrgy, Government of India, Hyderabad. He was, in the year 1980, was Grade-C Tradesman. He was charge-sheeted and a departmental proceeding was initiated against him. He, however, was not found guilty and the charges levelled against him and was reinstated in service on 28-8-1990. He did not serve the organisation from 20-2-1982 to 27-8-1990.
3. The question of his promotion having regard to the fact that he was directed to be reinstated with all consequential benefits came up for consideration before the appropriate authority and by reason of an order dated 6-4-1996, it was directed:
“Chief Admn. Officer, NFC appoints Shri B.P. Mamdelu, Tradesman/C, EC.No. 1498, EM to officiate as Tradesman/D in an industrial temporary capacity in NFC w.e.f. 1-2-1992.
While so officiating, Shri Mamdelu will be paid an initial pay of Rs.1680/- in the scale of pay of Rs. 1320-30-1560-EB-40-2040 plus usual allowances admissible under Central Government Rules. There will be no change in other terms and conditions of his appointment as communicated at the time of his initial appointment”.
4. Yet again on or about 6-3-1997 a Memorandum was issued, as a result whereof his scale of pay was revised in the following manner:
“In supersession of this Office OM No.NFC/PAR/2-96/451 dated 6-4-1996, approval of Chief Administrative Officer, NFC., is hereby conveyed to the promotion of Sri B.P. Mamdelu, EC No.1498, EM., to the grades of Tradesman (D) w.e.f. 1-2-1982 and Tradesman (E) w.e.f. 1-2-1995.
Consequently, the pay of Sri Mamdelu from time to time is regulated as detailed below:
Month and Year Grade Pay fixed Remarks
1-2-1982 T/D Rs.428/- Pre-revised scale
1-2-1983 T/D Rs.440/-
1-2-1984 T/D Rs.452/-
1-2-1985 T/D Rs.464/-
1-1-1986 T/D Rs.1470/- Rs. 1320-3-1560-EB-40-2020 (Revised scale of
pay)
1-2-1986 T/D Rs. 1500/-
1-2-1987 T/D Rs.1530/-
1-2-1988 T/D Rs.1560/-
1-2-1989 T/D Rs.1600/-
1-2-1990 T/D Rs.1640/-
1-2-1991 T/D Rs.1680/-
1-2-1992 T/D Rs.1720/-
1-2-1993 T/D Rs.1760/-
1-2-1994 T/D Rs.1800/-
1-2-1995 T/E Rs.1900/- Scale of pay Rs. 1400-40-1800- EB-50-2300 1-2-1996 T/E Rs.1950/- 1-2-1997 T/E Rs.2000/- There will be no change in other terms and conditions of his appointment as communicated at the time of his initial appointment".
5. The second respondent, thereafter, filed a representation on 30-4-1997, inter alia, praying for promotion to the posts of Grade-F and Grade-G on the ground that Sri D. Krishna Rao, Sri Sunder Babu, Sri A. Rajaiah, Sri R. Narsing Rao and Sri G. Madlmsitdhan, who are junior to him, had been promoted. The said representation of the second respondent was rejected by the petitioners herein by an order dated 9-5-1997, which is in the following terms:
”With reference to his representation dated 30-4-1997, Shri B.P. Mamdelu, T/E, EC No.1498, EM is hereby informed that under Merit Promotion Scheme, promotion of Tradesman has to be considered on merit but not on the basis of seniority. As such his request for promotion to the higher grades on part with his juniors is not accepted to by the competent authority.”
6. Thereafter, the aforementioned application was filed by the second respondent herein before the Central Administrative Tribunal. The learned Tribunal has noticed that in the reply filed by the petitioners herein before if, it had been stated that his case for further promotion could not be considered having regard to the fact that he was not in actual service from 20-2-1982 to 27-8-1990. The Tribunal further noticed that in reply it has been contended that he had been adequately been compensated by treating the said period as on duty and his back wages for the said period had also been paid and further more even promotions have been granted and as such he is not entitled to seek further promotions of Grade-G with effect from the date of his said representation and as alleged in the
said OA., before the Central Administrative Tribunal.
7. Mr. L. Narasimha Reddy, learned Counsel appearing on behalf of the petitioners herein raised a short question in support of this application. The learned Counsel contends that merit promotion scheme is applicable in the case of the Department Atomic Energy. Such a scheme, according to Mr. Reddy, was evolved having regard to the performance of the Scientists. The learned Counsel would urge that higher posts are neither selection posts nor even existence of any vacancy required therefor. All promotions of higher scales of pay are granted on the basis of the performance of the officers concerned and thus there is no occasion for considering the cases of the said officers on merit-cum-suitability basis.
8. Mr. Vemuri Venkateswara Rao, learned Counsel appearing on behalf of the second respondent, on the other hand, submitted that the reasons assigned, by the petitioners in their reply before the learned Tribunal cannot be held to be relevant for the purpose of invoking the aforementioned merit promotion scheme. Mr. Rao would urge that if the second respondent could be promoted with retrospective effect from 1982 when he was not in actual service, there is absolutely no reason as to why his past performance, as also performance from 1990 cannot be taken into consideration for further promotion. The procedure for promotion of scientific and technical staff is as follows:
“Scientific Promotions
There are several checks and balance built into the system to ensure that evaluations and recommendations for promotions are done in a systematic and balanced manner. For example, there is a system of confidential report, originating from the candidate assessed by the
immediate superior, reviewed and countersigned by the Head of the Division or Director of the Group. In the assessment form there is enough scope to reflect on the work carried out by the officer as well as his individual qualities.
On the basis of the confidential report, a Standing Screening Committee recommends the cases for promotion on the basis of standards and guidelines prescribed and it is ensured that no deserving person has been overlooked. Confidential dossiers are made available to the Screening Committee for assessing the outstanding abilities, achievements and managerial experience. The Screening Committee will be composed of immediate supervisors and balancing member from other Divisions/Units of the Department so that a uniformity exists in the entire Department.
Based on the recommendations of the Screening Committee, a selection Committee interviews the individuals and during interview detailed assessment of the candidates is made and suitable recommendations made.
Technical
Procedure for promotion of technical staff is more or less similar to the scientific personnel.
Recommendations for promotion of technical staff are screened by the Screening Committee on the basis of norms prescribed and recommendations are made on the basis of confidential reports of the individuals. Each case is assessed on its merits taking into account factors like qualification, length of service, his ability, record of work, amenability to discipline, devotion to duty, relations with colleagues etc., and only those considered deserving of
promotion on an overall assessment are recommended for promotion. Technical personnel recommended for promotion are given trade tests before they are interviewed. Based on the outcome of the trade tests and personal interview, promotions arc considered.
Approval of the recommendation for promotion both under scientific/technical categories are required to be approved by the appropriate authority who has been delegated with powers. While processing these cases, it is necessary to ascertain whether:
(a) the candidates were on duty on the dates from which they are recommended for promotion.
(b) there is no disciplinary action pending or contemplated against them.
On important aspect of the Merit Promotion Scheme is that seniority of an individual officer is not a criterion. Generally a list of all those candidates arranged with respect to the number of years they have spent in a particular grade is made available to the Screening Committee. Base on the gradings obtained in CR and personal interview, the brighter candidates pass through every grade in the shortest possible time to reach higher levels much before his colleagues who have may have joined before him or along with him. This has been accepted by the scientific and technical community in this Department. Therefore the normal definition of seniority and inter se seniority do not apply to the promotion policy for Scientists, Engineers and Technical personnel in this Department”.
9. The validity of the aforementioned scheme is not in question. The learned Central Administrative Tribunal therefore, in our opinion, has rightly proceeded to
consider the respective cases of the parties having regard to the said scheme only. It may be that in a given case having regarding to the peculiar nature of the said scheme, the case of the second respondent could not have been considered for further promotion, but as indicated hereinbefore, such a case has not been made out by the petitioners. The second respondent had been reinstated in service with all consequential benefits, which would include consideration of his case for promotion in terms of the existing Unit’s rules. It may be that the second respondent was not in actual service for a long time viz., from 20-2-1982 to 27-8-1990. But that did not, as indicated hereinbefore, stand in his way in obtaining promotion from Group C to D from 1-2-1982 and further promotion from Group D to E from 1-2-1995.
10. Thus, the second respondent’s case for promotion had been considered, atleast, from Group C to D and D to E, although he was not in service from 1982 to 1990. We are, therefore, of the opinion that such an order of promotion must have been passed having regard to the performance of the second respondent either prior to initiation of departmental proceeding and consequent order of suspension issued against him and after his reinstatement, which took place on 28-8-1990. The writ petitioners, therefore, having not considered this aspect of the matter must be held to have erred in law in issuing the order dated 9-5-1997, which was impugned before the learned Central Administrative Tribunal.
11. We, however, may notice that the learned Tribunal in its impugned order committed a mistake insofar as it directed grant of promotion to the second respondent from 1986 to the post of Tradesman-D in accordance with the Merit Promotion Scheme and thereafter fixing his pay notionally. The learned Tribunal further erred in directing that he should be
considered eligible for arrears, if any, from the date he actually shouldered the responsibility of Tradesman-D. Having regard to the nature of the Merit Promotion Scheme, as noticed hereinbefore, such a direction was uncalled for having regard to the fact that the second respondent \vas entitled to an order of up-gradation strictly in terms of the said Scheme and not otherwise. Although a person is not entitled to an order or promotion, but having regard to the scope and purport of Article 16 of the Constitution of India, he is only entitled to be considered therefor in terms of the extent rules. We therefore, in modification of that order passed by the learned Tribunal, direct that the case of the second respondent for further promotion may be considered, despite the fact that he was not in actual service from 20-2-1982 to 27-8-1990 keeping in view the performance since 1990 in the light of the observations made hereinbefore.
12. The writ petition is disposed of with the aforementioned directions.