ARIJIT PASAYAT, J. - (1.) LEAVE granted.
(2.) THESE appeals are directed against the judgment of a Division Bench of the Delhi High Court dismissing the appeals preferred against the order of a learned Single Judge who allowed the writ petitions filed by the respondents. Background facts in a nutshell are as follows: The respondents had claimed for directions to the appellants-Bureau of Indian Standards (hereinafter referred to as 'BIS') to promote them as Scientists-D in the pay-scale of Rs.12000-375-16500 on the date of their completion of 5 years of service 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 of Bureau of Indian 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 staff committee of Selection Committee 'A' as the case may be, on the recommendations of the Assessment committee appointed by the Director General under sub-regulation (3). Selection of officers for promotion shall be made on the basis of assessment 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 of Flexible Complementing formulated from time to time by the Department of Science and Technology for promotion of Scientists in scientific organizations under the Central Government and shall be effective from the date of eligibility." 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 of pay. The relevant residency periods were as follows: JUDGEMENT_1039_TLPRE0_2007Html1.htm
(3.) THE respondents were in the pay-scale of Rs.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 for benefits of the FCS linked to the Annual Confidential Reports of the 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 of officers 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 of scientists in Scientific Organizations under the Central Government and shall be effective from the date of eligibility. THE Scheme of Flexible 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 of the level of Scientist-E from 9th November, 1998 and for the levels of Scientist-F and Scientist G, the date of promotion would be effective from the date of Gazette Notification of this revised regulation." 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 of India, which was later modified vide Department of Science and Technology's OM No.A.42014/2/86-Admn.1(A) dated the 28th May, 1986. According to this scheme, the promotion of an 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 of assessment procedure as laid down by individual organization. Promotions made under this scheme would be in-situ and with effect from the date of their 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 years of residency 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 reports for previous five years and interview by the' Assessment Committee appointed "by the Director General, the officers would be promoted to the next higher grade as per their date of eligibility." ;