WP(C).24586 of 2016 and connected cases (Dr. Y.S. Rao et al. v Union of India & Others)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 27TH DAY OF MARCH 2019 / 6TH CHAITHRA, 1941** ## **WP(C).No. 24586 of 2016** ## **PETITIONER/S:** - **1 DR. Y.S.RAO SCIENTIST D & HOD, CROP IMPROVEMENT DIVISION INDIAN CARDAMOM RESEARCH INSTITUTE (ICRI SPICES BOARD)MYLADUMPARA, KAILASANADU PO.IDUKKI DST, 685553** - **2 DR. A. K. VIJAYAN SCIENTIST D & HOD, PLANT PATHOLOGY DIVISION, INDIAN CARDAMON RESEARCH INSTITUTE (ICRI SPICES BOARD)MYLADUMPARA, KAILASANADU PO., IDUKKI DST, 685553** - **3 DR. MARY MATHEW .K SCIENTIST D & HOD, BIO TECHNOLOGY DIVISION, INDIAN CARDAMON RESEARCH INSTITUTE (ICRI SPICES BOARD)MYLADUMPARA, KAILASANADU PO., IDUKKI DST, 685553** - **4 MR. B. A VADIRAJ SCIENTIST D & HOD, AGRONOMY & SOIL SCIENCE DIVISION, INDIAN CARDAMOM RESEARCH INSTITUTE (ICRI SPICES BOARD)MYLADUMPARA, KAILASANADU PO.IDUKKI DST, 685553** - **5 DR. K. DHANAPAL SCIENTIST D, PLANT PATHOLOGY & SCIENTIST IN CHARGE ICRI, REGIONAL RESEARCH STATION (RRS) TADONG, SIKKIM** **BY ADVS. SRI.ABRAHAM MATHEW (VETTOOR) SMT.BINI ELIZABETH SRI.ANIL ABEY JOSE SRI.SIJI ANTONY** ## **RESPONDENT/S:** **1 UNION OF INDIA REP. BY THE SECRETARY TO GOVERNMENT, MINISTRY OF** **WP(C).No. 24586 and conctd. cases** **2** **COMMERCE AND INDUSTRY,UDYOGBHAVAN, RAFI MARG, NEW DELHI 110001** - **2 SECRETARY TO GOVERNMENT MINISTRY OF PERSONNEL,PUBLIC GRIEVANCES AND PENSIONS, DEPARTMENT OF PERSONNEL AND TRAINING, (DOPT), GOVERNMENT OF INDIA, UDYOG BHAVAN, RAFI MARG, NEW DELHI 110 001** - **3 DEPARTMENT OF COMMERCE MINISTRY OF COMMERCE AND INDUSTRY, GOVERNMENT OF INDIA, UDYOG BHAVAN, NEW DELHI 110107 REP. BY ITS SECRETARY** - **4 THE COMPTROLLER & AUDITOR GENERAL OF INDIA POCKET-9, DEEN DAYAL UPADHYAYA MARG, NEW DELHI-110124** - **5 SPICES BOARD OF INDIA SUGANDHA BHAVAN, PALARIVATTOM, BY PASS RD, KOCHI 682025, KERALA** **REP. BY ITS SECRETARY,** - **6 THE CHAIRMAN SPICES BOARD OF INDIA,SUGANDHA BHAVAN,PALARIVATTOM BYPASS RD, KOCHI 682025** - **7 THE SECRETARY SPICES BOARD OF INDIA, SUGANDHA BHAVAN, PALARIVATTOM BY PASS RD, KOCHI 682025** - **8 THE DIRECTOR** **INDIAN CARDAMOM RESEARCH INSTITUTE (ICRI) MYLADUMPARA, KAILASANADU PO, IDUKKI DST, 685553** **BY ADVS. SRI.B.RAMACHANDRAN, CGC SRI.O.V.RADHAKRISHNAN (SR.) SMT.K.RADHAMANI AMMA, SC, SPICES BOARD SRI.ANTONY MUKKATH, SC, SPICES BOARD SRI.B.RAMACHANDRAN CGC SRI.O.V.RADHAKRISHNAN (SR.)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.03.2019, ALONG WITH WP(C).28348/2016, WP(C).38524/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 24586 and conctd. cases 3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 27TH DAY OF MARCH 2019 / 6TH CHAITHRA, 1941** ## **WP(C).No. 28348 of 2016** ## **PETITIONER/S:** **1 DR. B.GOPAKUMAR INDIAN CARDAMOM RESEARCH INSTITUTE, MYLADUMPARA, KAILASANADU P.O., IDUKKI DISTRICT-685553, NOW RESIDING AT T.C. 28/593, "GAYA", NALUMUKKU, KIATHAMUKKU, PETTAH P.O., THIRUVANANTHAPURAM-695024.** - **2 DR. S.VARADARASAN** **INDIAN CARDAMOM RESEARCH INSTITUTE, MYLADUMPARA,KAILASANADU P.O., IDUKKI DISTRICT685553, NOW RESIDING AT 1-1-26, CHOKKALINGANAGAR, 1ST STREET, KOODAL NAGAR, MADURAI-685018.** - **3 DR. K.M.KURUVILLA** **INDIAN CARDAMOM RESEARCH INSTITUTE, MYLADUMPARA,KAILASANADU P.O., IDUKKI DISTRICT685553, NOW RESIDING AT PADINGARAKARIKARA, "TOMS VILLA", THALAYAR, KUTTOOR P.O., THIRUVALLA-689106.** **4 DR. AJITH KUKMAR BISWAS INDIAN CARDAMOM RESEARCH INSTITUTE, REGIONAL STATION, TADONG P.O., GANGTOK, SIKKIM, NOW RESIDING AT 40/4, PIKHANA ROAD, BERHAMPORE, WEST BENGAL-742101.** - **5 DR. UTPAL GUPTA** **INDIAN CARDAMOM RESEARCH INSTITUTE, REGIONAL STATION, TADONG P.O., GANTOK, SIKKIM, NOW RESIDING AT SATADHA APARTMENT, 210 G, BAGHAJATIN, FLAT NO.3, KOLKATA-700086.** **BY ADVS. SRI.JOHN VARGHESE SRI.A.L.GEORGE** **WP(C).No. 24586 and conctd. cases** **4** ## **RESPONDENT/S:** - **1 UNION OF INDIA REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF COMMERCE AND INDUSTRY, DEPARTMENT OF COMMERCE, UDYOG BHAVAN, RAFI MARG, NEW DELHI-110001.** - **2 THE DIRECTOR** **GOVERNMENT OF INDIA, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCE & PENSIONS, DEPARTMENT OF PERSONNEL & TRAINING, UDYOG BHAVAN, RAFI MARG, NEW DELHI-110001.** - **3 DEPARTMENT OF COMMERCE INDUSTRY UDYOG BHAVAN, RAFI MARG, NEW DELHI-110001, REPRESENTED BY ITS SECRETARY.** - **4 THE COMPTROLLER AND AUDITOR GENERAL OF INDIA POCKET-9, DEEN DAYAL UPADHAYA MARG, NEW DELHI-110124.** **5 SPICES BOARD (MINISTRY OF COMMERCE & INDUSTRY, GOVERNMENT OF INDIA, SUGANDHA BHAVAN, N.H.BY-PASS, P.B.NO. 2277, PALARIVATTOM P.O., COCHIN-682 025, REPRESENTED BY ITS SECRETARY.** **6 THE CHAIRMAN, SPICES BOARD (MINISTRY OF COMMERCE & INDUSTRY, GOVERNMENT OF INDIA), SUGANDHA BHAVAN, N.H.BY-PASS, P.B.NO. 2277,PALARIVATTOM P.O., COCHIN-682025,** **BY ADVS. SRI.JAISHANKAR V.NAIR, CGC SMT.K.RADHAMANI AMMA, SC, SPICES BOARD SRI.ANTONY MUKKATH, SC, SPICES BOARD SRI.JAISHANKAR V.NAIR CGC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.03.2019, ALONG WITH WP(C).24586/2016, WP(C).38524/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 24586 and conctd. cases** **5** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 27TH DAY OF MARCH 2019 / 6TH CHAITHRA, 1941** ## **WP(C).No. 38524 of 2018** ## **PETITIONER/S:** - **1 DR.B.GOPAKUMAR, NOW RESIDING AT T.C. 28/593, GAYA, NADUMUKKU, KAITHAMUKKU, PETTA P.O., THIRUVANANTHAPURAM-695024.** - **2 DR. S. VARADARASAN, NOW RESIDING AT 1-1-26, CHOKKALINGANAGAR, 1ST STREET, KOODAL NAGAR, MADURAI-685018.** - **3 DR. K.M. KURUVILLA, NOW RESIDING AT 'TOMS VILLA', THALAYAR, KUTTOOR P.O., THIRUVALLA-689106.** - **4 DR. AJIT KUMAR BISWAS, NOW RESIDING AT 40/4, PILKHANA ROAD, BERHAMPORE P.O., WEST BENGAL-742101.** - **5 DR. UTPAL GUPTA, NOW RESIDING AT SATADHA APARTMENT, 210 G. BAGHAJATIN, FLAT NO.3, KOLKATA-700 086.** **BY ADVS. SRI.JOHN VARGHESE SRI.A.L.GEORGE** ## **RESPONDENT/S:** - **1 UNION OF INDIA, REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF COMMERCE AND INDUSTRY, DEPARTMENT COMMERCE, UDYOG BHAVAN, RAFI MARG, NEW DELHI-110001.** - **2 THE SECRETARY TO GOVERNMENT OF INDIA, DEPARTMENT OF COMMERCE AND INDUSTRY, UDYOG BHAVAN, RAFI MARG, NEW DELHI-110001.** **WP(C).No. 24586 and conctd. cases** **6** - **3 THE COMPTROLLER AND AUDITOR GENERAL OF INDIA, POCKET-9, DEEN DAYAL UPADHAYA MARG, NEW DELHI-110124.** **4 SPICES BOARD, (MINISTRY OF COMMERCE AND INDUSTRY, GOVERNMENT OF INDIA), SUGANDHA BHAVAN, N.H. BY-PASS P.B. NO.2277, PALARIVATTOM P.O., COCHIN-682025, REPRESENTED BY ITS SECRETARY.** **5 THE CHAIRMAN, SPICES BOARD, (MINISTRY OF COMMERCE AND INDUSTRY, GOVERNMENT OF INDIA), SUGANDHA BHAVAN, N.H. BY-PASS P.B. NO.2277, PALARIVATTOM P.O., COCHIN-682025.** **BY ADVS. SMT.K.RADHAMANI AMMA SMT.O.M.SHALINA, CGC ANTONY MUKKATH, SC, SPICES BOARD, INDIA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.03.2019, ALONG WITH WP(C).24586/2016, WP(C).28348/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 24586 and conctd. cases** **7** ## **JUDGMENT** The substantial prayers raised in these writ petitions are against the decision taken by the Spices Board recalling the benefits of in-situ promotion/financial up-gradation granted to Scientists working in the Spices Board at the level of Scientist 'C'. The audit enquiry report of the CAG's audit party as well as the office memorandum issued by the Spices Board on 30.6.2016 recalling the benefits already granted are under challenge. 2. Heard Sri.John Varghese and Sri.Abraham Mathew Vettoor, learned counsel for the petitioners, Sri.Antony Mukkath, learned Standing Counsel appearing for the Spices Board, Sri.B.Ramachandran, learned Central Government Counsel, Sri.Jaishankar.V.Nair, learned Central Government Counsel and Sri.P.Vijayakumar, learned Assistant Solicitor General appearing for the Union of India. **WP(C).No. 24586 and conctd. cases 8** 3. W.P.(C) No.24586 of 2016 is being referred to as a lead case and the parties and the documents are being referred to as arrayed therein. The prayer in the said writ petition is for quashing Exts.P11 and P13 Audit Enquiry Report and Office Memorandum. Prayers are sought for commanding respondents 2,3,5,6 and 7 to continue to make stipulated assessments of the petitioners for Annual Performance Assessment Report for grant of in-situ promotions and to fix their pay band. A declaration is sought that the Scientists under the 5[th] respondent are entitled for in-situ promotion to the level of Scientists 'D' with eligibility for financial up-gradation in Pay Band-3 (Rs.15,600-Rs.39,100) with grade pay of Rs.7,600/-. 4. The petitioners are persons, who had been appointed as Scientists under the Spices Board. It is stated that the Flexible Complimenting Scheme (FCS) was made applicable to the Spices Board in terms of Ext.P1 order of the Union of India dated 6.7.2006. Ext.P1 stated that the scheme would be introduced in the Spices and Rubber Boards up to the **WP(C).No. 24586 and conctd. cases 9** level of Scientist 'C' (Rs.10,000-15,200). It was stated that the recruitment rules for the post covered under the scheme would be modified with the approval of the competent authority in accordance with the residency period, criteria for evaluation of merit, etc., as contained in the scheme. 5. The scheme is produced as Ext.P2. It is contended that the scheme provided for grant of in- situ promotions in respect of eligible Scientists on the basis of rigorous evaluation process so as to grant them financial benefits applicable to higher posts to prevent the loss of talent from the scientific institutions in the country. It is stated that after due deliberations and proper consultative process, the Union of India had decided to implement the scheme in the identified commodity boards as well by Ext.P1 order. 6. Pursuant to the implementation of the FCS, several persons who were in pay band of Rs.10,00015,200 ie., the pay band applicable to the post of Scientist 'C' had been granted financial up- gradation/in-situ promotion at the said level to the **WP(C).No. 24586 and conctd. cases 10** scale applicable for Scientist 'D'. It is stated that long after the benefits had been granted to the eligible Scientists on the basis of the evaluation procedure and on their having completed the residency periods, an Audit objection had been raised by the Audit party of the CAG by Ext.P11 dated 14.11.2014. The audit noted that, it is clear from Ext.P1 that the FCS scheme was implemented in Spices Board only up to the level of Scientist 'C'. The audit understood Ext.P1 to mean that Scientists in Scientist 'B' category would be entitled for one promotion from Scientist B (Rs.8,000-13,500) to Scientist 'C' (Rs.10,000-15,200) under FCS. It was therefore stated that the Spices Board had granted in-situ promotions to Scientist 'C' to the pay scale of Scientists 'D' ie., Rs.12,000-16,500 under FCS scheme. This was held under objection. Further, the retrospective effect given to the FCS upgradations was also objected to. The further objection as to simultaneous effect of the MACP and FCS was also raised. 7. Though a reply was given to the audit ## **WP(C).No. 24586 and conctd. cases 11** enquiries and Ext.P12 request for clarification was made to the Union of India, no reply was received from the Central Government. However, by Ext.P13 memorandum, relying on a reply dated 17.3.2016 received from the Ministry to the Rubber Board in respect of the similar query, the Spices Board decided to withdraw the FCS granted to all Scientists 'D' and to revert them to Scientist 'C' and to recover the financial benefits already enjoyed by them. It was stated that the pension of retired Scientists will not be recovered, however future pension will be reduced based on the legal opinion received from the legal advisors. The names of the persons, against whom action is proposed, in pursuance to the office memorandum was also provided therein. 8. The learned counsel for the petitioners would contend that Ext.P1 specifically provided grant of financial upgradation/in-situ promotion up to the level of Scientist 'C'. Referring to the terms of the Flexible Complementing Scheme, it is contended that what is contemplated is only in-situ promotions in ## **WP(C).No. 24586 and conctd. cases 12** the post of Scientists held by the petitioners and a reference to implementation of the scheme up to the level of Scientist 'C' would indicate that persons placed in the pay scale attached of Scientist 'C' ie., Rs.10,000-15,200 would also be eligible for the benefit of the FCS. It is contended relying on Ext.P15 file notes as well as Ext.P17 letter of the Ministry dated 15.3.2013 that in the case of the Coffee Board, where the scheme was made applicable up to the level of Scientists 'D' financial upgradation to the level of Scientists 'E' had been granted and had not been objected to. It is stated that detailed representations preferred by the petitioners did not yield any results. 9. A counter affidavit has been placed on record on behalf of respondents 5 to 7. It is contended therein that by Ext.P1, the Flexible Complementing scheme was implemented up to the level of Scientist 'C' with pay scale of 10,000-15,200. It is contended that some of the petitioners, who were in the scale of pay attached to Scientist 'C' had been granted financial upgradation in the scale **WP(C).No. 24586 and conctd. cases 13** of pay of Rs.12,000-16,500. It is contended that this was a mistake committed by the Spices Board and that in view of the language used in Ex.P1, the petitioners were not entitled for such financial upgradation. It is stated that though replies had been preferred to the audit objections and Ext.P12 request for clarification had been sent to the Ministry, no reply had been received. However, in view of a letter issued to the Rubber Board in reply to a query of a similar nature, Ext.P13 office memorandum had been issued stating that the mistake is liable to be corrected and the benefits of FCS are liable to be granted only up to the level of Scientists 'C'. It is stated that Ext.P5 office memorandum had been implemented in the Spices Board by Ext.P6. It is stated that in view of the fact that benefits had already been granted, no recovery was being made from persons had retired from service and only a re-fixation and a correction of a mistake was contemplated. It is stated that the petitioners cannot rely on Ext.P4 and wrong orders issued by the Board since Ext.P13 office memorandum has been issued **WP(C).No. 24586 and conctd. cases 14** cancelling the orders earlier issued, after considering the letter issued by the Government to the Rubber Board in reply to a query raised in respect of the matter. It is stated that since Ext.P1 is identically made applicable to the Rubber Board and the Spices Board, the reply of the Government given to the Rubber Board would be binding on the Spices Board as well. 10. A reply affidavit has been placed on record by the petitioners pointing out that the Government before and after implementing the FCS had correctly understood the implication of the usage “up to the level of Scientist 'C'” since the total number of Scientists in the pay band applicable to Scientist 'C' and the financial implication of the upgradation to be granted to them to the next level had been specifically taken note of and approved before Ext.P1 had been issued. Ext.P24 proceedings dated 26.5.2014 extending the benefit of in-situ promotion from the post of Scientists 'D' to 'E' in the Coffee Board is also produced to contend that the term “up to the level of Scientists C” would entail financial **WP(C).No. 24586 and conctd. cases 15** upgradation in the post of Scientist 'C' as well. 11. An additional counter affidavit has been placed on record by respondents 5 to 7 producing documents as well. It is stated that while implementing the FCS in the Spices Board, a conscious decision had been taken, not to include the highest post in the Unit in the scheme. It is stated that the highest post in the Unit in question is that of Director (Research) which is in the pay band of Rs.15,600-39,100 with grade pay of Rs.7600 and as such, a financial upgradation to the said post would be outside the purview of Ext.P1. The learned Standing counsel also relies on the decisions of the Apex Court in _**Laxminarayan R. Bhattad and Others Vs. State of Maharashtra and Another [(2003) 5 SCC 413] and Union of India and Another vs. Ashok Kumar Aggarwal [(2013) 16 SCC 147)**_ to contend that notings in a file would by no means amount to an order passed and unless an order is passed as provided by the Rules of the procedure, it would not be binding in nature. 12. A statement has been placed on record by ## **WP(C).No. 24586 and conctd. cases 16** the Central Government Counsel on behalf of respondents 1 to 4. It is contended that FCS had been implemented in the Spices Board up to two levels that is Scientists 'B' to 'C' and Scientist 'C' to 'D'. It is stated that the audit party had objected to the upgradation granted to Scientist 'C' to 'D' on the ground that Ext.P1 was implemented in the Spices Board only up to the level of Scientist 'C'. It is stated that the Board had sought a clarification from the Ministry and a reply had been addressed to the Rubber Board on 17.3.2016. It is stated that the Rubber Board is another commodity board under the same Ministry in which the FCS was sanctioned along with the Spices Board in the same order and under same conditions. It is therefore contended that the reply given to the query raised by the Rubber Board would be applicable to the Spices Board as well. It is stated that it has been clarified that the FCS had been implemented in the Rubber and Spices Boards only up to the level of Scientist 'C' and therefore the financial upgradation granted to the level of Scientist 'D' is irregular and the amounts paid are ## **WP(C).No. 24586 and conctd. cases 17** liable to be recovered. It is stated that the usage 'up to the level' is perfectly clear and no further consideration is required. It is stated that since Ext.P1 is not under challenge, the petitioners are not entitled to any of the benefits as sought for by them. It is further contended that the request of the fist petitioner for financial upgradation under the MACP scheme had been kept in abeyance, in view of the pendency of these writ petitions. 13. The petitioners in W.P.(C) No.24586 of 2016 submit that they had been granted the benefit of financial upgradation from Scientists 'C' to 'D' by competent orders of the Spices Board. It is stated that the scale of pay of the Director of the Rubber and Spices Boards had been revised by Ext.P13 order to Rs.14,300-18,300. It is therefore contended that the question of the highest post in the Unit having the same scale as the financial upgradation granted does not arise since the post of Director is placed in a higher scale of pay. It is stated that the petitioners who had retired from service are being mulcted with financial liability on the ground that ## **WP(C).No. 24586 and conctd. cases** **18** the placements granted to them were erroneous. Relying on the decisions of the Apex Court in _**D.S Nakara and Others v. Union of India [(1983) 1 SCC 305], State of Punjab and Others v. Rafiq Masih (White Washer) and Others [(2015)4 SCC 334] and High**_ _**Court of Punjab & Haryana and Others v. Jagdev Singh**_ _**[(2016) 14 SCC 267],**_ the learned counsel would contend that the pension is not a bounty and is a valuable right accrued on account of long years of service and that there can be no retrospective reduction in the same. 14. I have considered the contentions advanced at considerable length and perused the pleadings and documents placed on record. The Flexible Complementing Scheme was introduced for granting financial benefits to persons working under scientific organizations within the country. The scheme provides for in-situ promotions or financial upgradations. It is evident that the scheme is intended only to apply to persons, who are engaged in the scientific cadre in the eligible organisations. Appropriate decisions had been taken by the Union of ## **WP(C).No. 24586 and conctd. cases 19** India identifying the commodity boards and the research institutions under the boards as scientific and technical organisations to which the scheme could be applied. The issue specifically sought to be addressed by the scheme is the stagnation and loss of morale and the resultant brain drain of Scientists working within the country in view of the better financial and other prospects available elsewhere. The order implementing the scheme would show that in the Spices and the Rubber Boards, the decision by Ext.P1 was to implement the scheme “up to the level of Scientist 'C'”. The implementation of the scheme to the level of Scientist 'C' would entail the consideration of financial upgradation/in situ promotion at the level of Scientist 'C'. This apparently is the intention of Ext.P1 and this was how it had been understood by both the Boards as well. Scientists had been granted upgradation from Scientist 'B' to the scale applicable to Scientist 'C'. Those persons who had completed the residency period and had been successful in the evaluation process had been granted further upgradation at the ## **WP(C).No. 24586 and conctd. cases 20** level of Scientist 'C' to the pay scale applicable to the post of Scientist 'D'. The contention of the audit was that such upgradation from Scientist 'C' to 'D' was not contemplated by Ext.P2. From a careful consideration of Ext.P1 and the audit notes as contained in the query raised by the audit party, it appears that the audit party was under the impression that the scheme provided only for upgradation from Scientist 'B' to 'C' in the Spices and Rubber Boards. Since Ext.P1 specifies that the FCS is applicable up to the level of Scientist 'C' and since what has been granted is a financial upgradation at the level of persons holding the scale of pay of Scientist 'C' to the scale of pay applicable to scientist 'D', which is not a promotion going by the provisions of the scheme, I am of the opinion that the contention raised that Ext.P1 provides for only one financial upgradation ie., to Scientist 'B' to 'C' is an an erroneous premise. From a reading of Ext.P1, I am of the opinion that no such conclusion is liable to be reached and that the stand now taken by the Union Government that is clearly the import of ## **WP(C).No. 24586 and conctd. cases 21** Ext.P1 cannot be accepted. 15. In any view of the matter, I find that the query raised by the Rubber Board in view of the objection raised by the audit party had been answered only by a communication dated 17.3.2016. The said communication is in the form of a letter. It is not expressed as an executive order in terms of Article 77(2) of the Constitution of India. The communication also does not refer to or reveal any consideration of the issue at the proper level in the Government. Though it is contended by the learned Central Government Counsel that the communication was preceded by proper deliberations, reading of the communication by itself would reveal that no such deliberations or considerations are apparent from the same. The issue therefore, is as to whether the implementaion of the FCS scheme up to the level of Scientist 'C' would make the persons who have been placed at the level of Scientist 'C' also eligible for financial upgradation. As a matter of fact, such financial upgradation had been granted to the persons who were found eligible by the Spices Board in pursuance to Ext.P7. No proper answer is **WP(C).No. 24586 and conctd. cases 22** forthcoming to the query raised by the Spices Board on the basis of the audit objections. 16. In the above view of the matter, I am of the opinion that the recalling of benefits already granted and the financial upgradations effected on the strength of Ext.P1 on the basis of a letter issued to the Rubber Board which also does not reveal any proper consideration of the issue and which is not an executive order issued by the Government of India, cannot be sustained. In the above view of the matter, the impugned orders in these writ petitions are set aside. There will be a direction to the respondents to grant the financial benefits due to the petitioners herein on the strength of Ext.P1 taking note of the financial upgradations/in-situ promotion granted to the petitioners from Scientist 'C' to the scale of pay attached to the post of Scientist 'D' and to grant them all pensionary benefits, accordingly. It is stated that the benefits of the 7[th] pay revision have not been made available to the petitioners due to the pendency of these writ petitions. The time bound **WP(C).No. 24586 and conctd. cases 23** grade promotions, if any withheld are also liable to be granted to them. The respondents shall take appropriate steps to see that the said benefits are also calculated and released to the petitioners. The benefits shall be calculated and released to the petitioners within a period of four months from the date of receipt of a copy of this judgment. These writ petitions are ordered accordingly. ## **Sd/-** **ANU SIVARAMAN** sab **JUDGE** **WP(C).No. 24586 and conctd. cases 24** ## **APPENDIX OF WP(C) 24586/2016** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE-R1(A) A TRUE COPY OF REPLY LETTER DATED 10/02/2017 SEND TO THE 1ST PETITIONER. EXHIBIT P1: TRUE COPYOF THE OFFICE MEMORANDUM ISSUED BY THE 3RD RESPONDENT INTRODUCING THE FCS SCHEME IN THE COFFEE, RUBBER AND SPICES BOARD DATED 06.07.2006** - **EXHIBIT P2: TRUE COPY OF THE OFFICE MEMORANDUM PUBLISHED BY THE DEPARTMENT OF PERSONAL AND TRAINING (2ND RESPONDENT) AS NO.2/41/97-PIC DATED 9.11.1998** **EXHIBIT P3: TRUE COPY OF THE OFFICE MEMORANDUM NO.ADM/PRO/02/99/6537 ISSUED BY THE 5TH RESPONDENT DATED 07-12-2007 EXHIBIT P4: TRUE COPY OF THE OFFICE MEMORANDUM NO.ADM/PRO/02/99/6536 DATED 07-12-2007 EXHIBIT P5: TRUE COPY OF THE DOPT ORDERNO. A 14017/37/2008 DATED 10-09-2010 EXHIBIT P6: TRUE COPY OF THE OFFICE MEMORANDUM DATED 29-04-2011 EXHIBIT P7: TRUE COPYOF THE DETAILED NOT EISSUED BY DOPT ISSUED AS PER OFFICE MEMORANDUM DATED 21-09-2012** **EXHIBIT P8: TRUE COPY OF THE EARLIER MEMORADUM ISSUED BY THE DOPT DATED 23-07-2009 EXHIBIT P9: TRUE COPY OF THE MEMORANDUM DATED 20-112013 EXHIBIT P10; TRUE COPYOF THE OFFICE MEMORANDUM NO.ADM/PRO/2(1) 2012-13 DATED07-02-2014 EXHIBIT P11: A TRUE COPY OF THE AUDIT ENQUIRY REPORT DATED 14-11-2014 EXHIBIT P12: THE 5TH RESPONDENT SOUGHT A CLARIFICATION FROM THE 3RD RESPONDENT WITH REGARD TO THE IMPLEMENTATION OF FCS IN THE SPICES BOARD AS PER ITS LETTER DATED 16-12-2014** **WP(C).No. 24586 and conctd. cases 25** **EXHIBIT P13: TRUE COPY OF THE MEMORANDUM DATED 30-062016** **EXHIBIT P14: TRUE COPY OF THE DEPARTMENT NOTES ISSUED BY MINISTRY OF FINANCE, DEPARTMENT OF EXPENDITURE DATED 19-06-2006** - **EXHIBIT P15: TRUE COPY OF THE COMMUNCATION ISSUED BY THE 2ND RESPONDENT AS DOPT DY. NO.1141548 DATED 15-03-2016** - **EXHIBIT P16: TRUE COPY OF THE COMMUNICATION ISSUE DBY THE 3RD RESPONDENT TO THE 2ND RESPONDENT DATED 17-03-2016** - **EXHIBIT P17: TRUE COPY OF THE LETTER NO.27/16/1991 PLANT -B (VOL.III) ISSUED BY THE 3RD RESPONDENT DATED 15-03-2013** - **EXHIBIT P18: TRUE COPY OF THEMEMORANDUM SUBMITTED BY "ICRI (SPICES BOARD) SCUEBTUST'S FORUM ' TO THE 6TH RESPONDENT DATED 02-091-2015** - **EXHIBIT P19; TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 3RD PETITIONER TO THE 6TH RESPONDENT DATED 28.12.2015** - **EXHIBIT P20 A TRUE COPY OF THE REPRESENTATION MADE ON 19/10/2016 ADDRESSED TO THE 6TH RESPONDENT.** - **EXHIBIT P21 A TRUE COPY OF THE CIRCULAR DATED 14/07/2017 ISSUED BY THE RESPONDENT TOGETHER WITH ALLIED DOCUMENTS.** - **EXHIBIT P22 A TRUE COPY OF THE REPRESENTATION MADE ON 03/08/2017 ADDRESSED TO THE RESPONDENTS 6, 7 AND 8.** - **EXHIBIT P23 RELEVANT PAGES OF THE INFORMATION RECEIVED UNDER THE RTI FROM THE MINISTRY OF COMMERCE, WITH REGARD TO THE IMPLEMENTATION OF FCS IN THE COMMODITY BOARDS.** - **EXHIBIT P24 A TRUE COPY OF THE PROCEEDINGS OF THE CHAIRMAN, COFFEE BOARD DATED 26/05/2014.** - **EXHIBIT P25 A TRUE COPY OF THE RELEVANT PAGES OF THE COMPILATION OF DELEGATION OF POWERS PUBLISHED IN THE WEB SITE OF SPICES BOARD.** **WP(C).No. 24586 and conctd. cases** **26** ## **APPENDIX OF WP(C) 28348/2016** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE MEMORANDUM DT. 30-06-2016 ISSUED BY THE 5TH RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE OFFICE MEMORANDUM ISSUED BY THE 3RD RESPONDENT DT. 06-07-2016.** **EXHIBIT P3 TRUE COPY OF THE OFFICE MEMORANDUM PUBLISHED BY THE 2ND RESPONDENT DT. 09-111998.** **EXHIBIT P4 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DT. 10-09-2010.** **EXHIBIT P5 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DT. 29-04-2011. EXHIBIT P6 TRUE COPY OF THE MEMORANDUM ISSUED BY THE 2ND RESPONDENT DT. 21-09-2012. EXHIBIT P7 TRUE COPY OF THE MEMORANDUM ISSUED BY THE 2ND RESPONDENT DT. 23-07-2009. EXHIBIT P8 TRUE COPY OF THE OFFICE MEMORANDUM ISSUED BY THE 5TH RESPONDENT DT. 07-02-2014. EXHIBIT P9 TRUE COPY OF THE AUDIT REPORT SUBMITTED BY THE 4TH RESPONDENT DT. 14-11-2014. EXHIBIT P10 TRUE COPY OF THE LETTER DT. 16-12-2014 ISSUED BY THE 5TH RESPONDENT TO THE 3RD RESPONDENT. EXHIBIT P11 TRUE COPY OF THE ORDER ISSUED BY THE MINISTRY OF FINANCE DT. 19-06-2006. EXHIBIT P12 TRUE COPY OF THE REPLY ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT DT. 15-033016. EXHIBIT P13 TRUE COPY OF THE REPLY FURNISHED BY THE 3RD RESPONDENT DT. 17-03-2016. EXHIBIT P14 TRUE COPY OF THE LETTER DT. 15-03-2013 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P26 A TRUE COPY OF THE COMMUNICATION NO.ADM/PRO(MACP)/2(8)2017/5101 ISSUED BY** **WP(C).No. 24586 and conctd. cases** **27** ## **THE 8TH RESPONDENT.** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R5 A** PHOTOCOPY OF THE LETTER NO.27/16/1991-PLANT-B (VOL.III) DATED 15/03/2013 OF THE UNDER SECRETARY TO GOVERNMENT OF INDIA. **EXHIBIT R5 B** PHOTOCOPY OF THE SPICES BOARD (RECRUITMENT) REGULATIONS 2016 WITH SCHEDULE. **EXHIBIT R5 C** PHOTOCOPY OF THE OFFICE MEMORANDUM NO.AB14017/37/2008-ESTT(RR) DATED 10/09/2010 WITH FLEXIBLE COMPLEMENTING SCHEME. **EXHIBIT R5 D** PHOTOCOPY OF THE COFFEE BOARD (CADRE AND RECRUITMENT) RULES, 2014 AS PER NOTIFICATION DATED 14/03/2014. ## **APPENDIX OF WP(C) 38524/2018** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE OM DATED 30/06/2016 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P2 TRUE COPY OF THE ORDER OF THIS HON'BLE COURT DATED 06/09/2016 IN WPC NO.28348/2016. EXHIBIT P3 TRUE COPY OF THE LETTER DATED 15/05/2018 ISSUED BY THE 1ST RESPONDENT TO THE 5TH RESPONDENT. EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 05/07/2018 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 4TH RESPONDENT. EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 04/07/2018 SUBMITTED BY THE 2ND PETITIONER BEFORE THE 4TH RESPONDENT. EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 06/07/2018 SUBMITTED BY THE 3RD PETITIONER BEFORE THE 4TH RESPONDENT. EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 05/07/2018 SUBMITTED BY THE 4TH PETITIONER BEFORE THE 4TH RESPONDENT. EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 06/07/2018 SUBMITTED BY THE 5TH PETITIONER** **WP(C).No. 24586 and conctd. cases 28** ## **BEFORE THE 4TH RESPONDENT.** **EXHIBIT P9 TRUE COPY OF THE ORDER DATED 27/12/2018 ISSUED BY THE 1ST RESPONDENT.**