Central Administrative Tribunal - Madras
C Manogaran vs M/O Health And Family Welfare on 19 July, 2024
1 OA No. 1637/2014
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/01637/2014
Dated this, the 19th day of July, Two Thousand & Twenty Four
CORAM :
HON'BLE MR. VARUN SINDHU KUL KAUMUDI, Member (A)
HON'BLE MR. M. SWAMINATHAN, Member (J)
C. Manogaran, C/o. P. Jayaprakash,
No. C. 35, CMDA,
Truck Terminal Complex,
Madhavaram, Chennai 600110. .....Applicant
By Advocate M/s. S. Retnaswamy
Vs.
1. Secretary,
Ministry of Health & Family Welfare,
Nirman Bhavan, New Delhi 108
2. The Director General,
ICMR, Ansari Nagar,
New Delhi 29.
3. Director,
Tuberculosis Research Centre (NIRT), ICMR,
Mayor V.R. Ramanathan Road, Chetpet, Chennai 31. ....Respondents
By Advocate Mr. M. Kishore Kumar, SPC
2 OA No. 1637/2014
ORDER
(Pronounced by Hon'ble Mr. Varun Sindhu Kul Kaumudi, Member(A)) This OA has been filed by the applicant seeking the following reliefs:-
"i) to call for records from the Respondents and after going through them set aside the 2nd Respondent's letter No. 69/61/2014-ECD-I dated 22.07.2014 conveyed in third Respondent's letter Ref. NIRT/Estt/PM-90/13/2014-15-
1075 dated 01/02.09.2014 and direct the Respondents to appoint the Applicant to the post of Technical Officer-A in PB-2, Rs.9300-34800 + Rs.4600/- GP with effect from 01.08.2013 with all consequential benefits.
ii) Cost of this application.
iii) And pass such further order or orders as this Honourable Tribunal deemed it fit and proper in the circumstances of the case and thus render justice."
2. The facts of the case, as submitted by the Applicant, are as follows, in brief:-
The Applicant was selected for appointment as Medical Social Worker in the third Respondent's office. Since the applicant was not appointed even after a long time, the applicant filed O.A. No. 187 of 2010 before this Tribunal seeking appointment. The Tribunal allowed the Original Application and directed the Respondents to appoint the applicant, as per law, against available vacancies. Since the order of this Tribunal was not complied with, the applicant filed Contempt Application No. 88 of 2010 before this Tribunal. The Respondents filed W.P. No. 2195 of 2011, against the order of the Tribunal, which was dismissed by the Honourable High Court of Madras, on 17.02.2011. Taking this into consideration, the 3 OA No. 1637/2014 Respondents filed a reply in the Contempt Application stating that the applicant will be appointed against equal post in other institutions under the 2nd Respondent. The applicant was offered appointment in the scale of pay of PB-1 Rs 5200-20200 + GP of Rs.2800/-. However the equal scale of pay for the post to which the applicant was selected was PB-2 Rs 9300-34800 + GP of Rs 4600/-. This has been confirmed in the 3rd Respondent's letter dated 20.02.2012. This Tribunal closed the Contempt Application vide its order, dated 22.09.2011. The applicant did not accept the offer and gave a representation. Since the Respondents had initiated the process to fill up the post of Medical Social Worker, the applicant filed OA No 485 of 2012, seeking appointment in the scale of pay of Rs 9300-34800 plus Grade pay of Rs.4600/-. However, the respondents appointed the applicant in the scale of pay of Rs 9300-34800/- plus Grade Pay of Rs 4200/-, even though pre-
revised scale of pay of Rs 5500-9000/- is revised as Rs.9300-34800/- plus Grade Pay of Rs.4600/- . As per RR, the Medical Social Worker post is re-
designated as TO-A and the revised scale of pay of TO-A is PB-2, Rs.9300 -
34800 + 4600 Grade Pay, as per the Sixth Central Pay Commission. Therefore, it is quite clear that the Respondents had appointed the applicant to a post far lower than the one he was selected for and have falsely submitted before this Tribunal that the direction of the Tribunal had been complied with. Representation given, in this regard, is rejected by the 4 OA No. 1637/2014 2nd Respondent's letter, dated 22.07.2014. Aggrieved, the applicant has filed this OA.
3.1. The respondents have filed their reply opposing the relief prayed for by the applicant. It is submitted that the applicant, Mr. C. Manogaran, had applied for the post of Medical Social Worker at the TRC, Chennai, and was called for interview and written test on 23.10.2007. He was recommended by the Selection Committee and the panel of names were shortlisted for the said post. The post of Medical Social Worker could not be filled up at that time.
3.2. Mr C. Manogaran, subsequently, filed a case under OA No.187 of 2010 seeking direction to the Respondent to appoint him to the post of Medical Social Worker in the scale of pay of Rs.5500-175-9000 (pre- revised) as per the Rs. 5000-8000 of the applicant, As per VI-CPC recommendations scale of Rs.5500-9000 has been granted GP of Rs.4200. 3.3. Accordingly, all vacant posts of Medical Social Worker were re- designated as Technical Assistant with GP of Rs.4200 and new individuals were recruited in GP of Rs.4200. Moreover, the applicant requested to give him any post lying vacant in Rs. 5500-9000 (pre-revised). As per his request he was appointed as Technical Assistant in GP of Rs. 4200. 5 OA No. 1637/2014 3.4. The Tribunal, by its orders, dated 15.09.2010, directed the respondents to issue an appointment order to the applicant, as per law, for the available vacancies.
3.5. Since the order of the Hon'ble Tribunal could not be complied with due to change of post and pay, the applicant filed contempt application against the Respondents in C.A.No.88 of 2010 and the same was dismissed on 22.09.2011.
3.6. The Respondents filed a Writ Petition before the Hon'ble Madras High Court challenging the CAT order, dated 15.09.2010, but the Hon'ble High Court dismissed the said Writ Petition vide the order, dated 17.02.2011. 3.7. Mr. C. Manogaran was offered an appointment to the available post of Technician-C, lying vacant in the scale of pay in PB-1, Rs.5200-20200 + GP Rs.2800/- by the Respondent, vide order, dated 21.09.2011, informing him to join duty at the RMRIMS, Patna, latest by 06.10.2011, against the Tribunal's order in O.A. No. 187 of 2010.
3.8. Mr. C.Manogaran, vide letter dt. 30.09.2011, gave his unwillingness to join the post on the grounds that he was selected for appointment as Medical Social Worker in the pre-revised scale of pay of Rs.5500-175-9000 (revised scale of pay being Rs.9300-34800 + GP 4600) but was appointed in the revised scale of pay of PB-1, Rs.5200-20200 + GP 2800. 6 OA No. 1637/2014 3.9. The Applicant vide letter, dated 07.12.2011, requested that he may be appointed either as Medical Social Worker or in any other post carrying equal scale of pay of PB-2, Rs.9300-34800+ GP 4200 (pre- revised Rs.5500- 9000).
3.10. In response, the 2nd Respondent, vide letter, dated 21.12.2011, replied as follows: "I am directed to inform you that efforts shall be made to find out Technical Assistant (MSW) post in the pay band of Rs.9300-34800+ GP 4200 is lying vacant under DR quota in Hqrs. Office as well as in ICMR Centres/Instts. As and when any DR post in the said Grade Pay will be available, you will be appointed against that post". 3.11. In response to the reply received under RTI, vide his letter, dated 03.03.2012, the applicant requested the 2nd respondent, i.e., DG, ICMR, to appoint him either as Medical Social Worker or any other post carrying equal scale of pay of PB-2, Rs.9300-34800 + GP 4200 (pre-revised Rs.5500- 9000).
3.12. In terms of the letter issued by the ICMR, Mr. C. Manogaran was offered the post of Technical Assistant in the pay scale of PB-2, Rs.9300- 34800 + GP 4200, vide letter, dated 31.05.2013, and he joined duty on 01.08.2013, accepting the offer of the post of Technical Assistant. 3.13. Again, the applicant, vide letter, dated 27.12.2013, represented that he may be appointed as Technical Officer-A in the pay scale of PB-2, Rs.9300- 34800+ GP 4600, w.e.f. 01.08.2013, with all consequential benefits. 7 OA No. 1637/2014 3.14. Based on the representations given by the applicant and forwarding the same to the ICMR Hqrs. by the 3rd respondent, the 2nd respondent, i.e., DG, ICMR, vide his letter, dated 22.07.2014, has rightly rejected the claim of Mr.C.Manogaran. The text of the letter is reproduced below:
"I am directed to state that up-gradation of posts were made in 2009 by the ICMR and the applicant who had applied for the post of Medical Social Worker in the pay scale of Rs.5500-9000 in 2007, joined in 2013 after the order of Hon'ble CAT, in the grade pay of Rs.4200 as Technical Assistant (MSW) in NIRT as per terms and conditions of offer of appointment dated 01.08.2013. As such he is not eligible for appointment in upgraded/higher post of Technical Officer-A in the GP of 4600 with retrospective effect. He may be given seniority in the post of TA from the date of joining and he can be considered for promotion to the post of TA-A as per his seniority. The reason for not accepting the argument of applicant and NIRT is that Mr.C.Manogaran has been given the replacement post and pay scale of GP 4200 (PB-2) equivalent to Medical Social Worker in pre-revised pay scale of Rs.5500-9000 as CAT's order. There is no provision for revising the pay scale given in advertisement and offer of appointment as offer given is person to the applicant. If the post of TA (MSW) is not available in NIRT in that case his pay and allowances may continue to be drawn against any vacant post of Technical Assistant.
In view of the above the request of Mr.C.Manogaran, TA for upgradation/appointment to the post of TO-A in the grade pay of Rs.4600 w.e.f.01.08.2013 may not be acceded to."
3.15. Hence, according to the Respondents, the applicant is not eligible for appointment in the upgraded/higher post of Technical Officer-A, in the GP of 4600, with retrospective effect. However, he can be given seniority in the post of Technical Assistant, from the date of his joining, and can be considered for promotion to the post of Technical Officer-A, as per his seniority.
3.16. Accordingly, the respondents have prayed for dismissal of the OA.
4. The applicant has filed a rejoinder reiterating the facts in the OA. 8 OA No. 1637/2014
5. Heard both sides and perused the records.
6. The issue herein has been coming before this Tribunal repeatedly. The first in the series was OA 187/2010, wherein the applicant, who had applied for the post of Medical Social Worker and had stood first among the candidates in October, 2007, sought to be appointed, against the post advertised in the Hindu daily. The OA was decided on 15.09.2010 in favour of the applicant. The operative para is extracted below :-
"6. It is an admitted position that the respondents have called for applications from eligible candidates through newspaper advertisement. It is also an admitted position that the respondents have conducted the written test and interview and the applicant stood first in the selection process. Such being the case, there is no reason for the respondents to approve or disapprove as the case may be due to administrative reasons. The respondents have not produced any authority to support their stand as stated in their reply statement. After the selection process is over, the respondents are required to publish the result. It is not the case of the respondents that some malpractice has taken place in the selection process either in the written examination or in the interview. In that view of the matter, we direct the respondents to publish the select panel as recommended by the Selection Committee, which was already furnished to the applicant under RTI Act. Thereafter, the respondents shall issue appointment orders to the applicant as per law for the available vacancies. This exercise shall be completed by the respondents within a period of two weeks from the date of receipt of a copy of this order.
7. With the above direction, the OA is allowed. No costs."
7. The OA was followed by C.A. No. 88 of 2010 in OA 187/2010, wherein this Tribunal ordered as follows on 22.09.2011:-
"2. After issue of notice to the respondents in the CA, they have filed reply statement and today learned counsel for Respondents R2 & 3 submitted that the respondents have complied with the directions of this Tribunal in OA 187/2010 dated 15.9 2010 by issuing appointment order dated 21.9.2011 in which the applicara has been appointed to the post of Technician 'C' in the scale of pay of Rs 5200-20200/- + Grade pay Rs. 2800/- + usual allowances as applicable for ICMR employees at RMRI, Patna and the same is sent to the applicant. The applicant has been asked to report at Patna latest by 6.10.2011.9 OA No. 1637/2014
The counsel for the respondents has produced the copy of the order dated 21.9.2011 which is taken on record.
3. Learned counsel for the applicant submitted that the applicant has not received the order dated 21.9.2011. He is given a copy of the order dated 21.9.2011 today.
4. Considering the submission made from either side, since the respondents have already complied with the directions of this Tribunal, we are not inclined to proceed with the contempt application against the respondents and the contempt proceedings are dropped. CA is closed. Notices discharged."
8. Prior to offering the job as above, the Respondents had unsuccessfully challenged the order of the Tribunal in OA 187/2010, vide a WP in the Hon'ble High Court of Madras. The Hon'ble High Court, in WP No. 2195 of 2011, filed by DG, ICMR and the Director, TRC, ordered as follows on 17.02.2011 :-
" The petitioners challenge the order 15.09.2010 made in O.A.No.187 of 2010 by the Tribunal, whereby the application filed by the first respondent herein seeking to direct the respondents therein to appoint him as Medical Social Worker as per the Selection list dated 2.1.2009 was allowed directing the authorities to publish the select panel as recommended by the Selection list Committee, which was already furnished to the first respondent/applicant under the RTI Act and thereafter to issue appointment orders to the applicant as per law for the available vacancies.
2. We have gone through the entire materials placed on record especially the impugned order. Though the first respondent/applicant stood first among the 41 candidates, who appeared in the written examination for the post of Medial Social Workers, the petitioners in their reply statement, has stated that the panel of name shortlisted by the Selection Committee is only recommendatory in nature and it is the discretion of the appointing authority either to accept the same or disagree or even keep the issue on hold for decision for various administrative reasons or to fill up the vacancies by fresh appointment, which in our view, has been asserted without assigning any reason. We also make it clear that on the ground of administrative reasons, the appointing authority has no right either to approve or to disapprove the selection panel, without assigning any valid reason. Therefore, we find no ground to interfere with the well considered and merited order passed by the Tribunal. Accordingly, the writ petition fails and the same is dismissed. No costs. M.P.No.1 of 2011 is closed."10 OA No. 1637/2014
9. The applicant was first offered appointment, on 21.09.2011, to the post of Technician 'C' at RMRI, Patna. The applicant protested against it, stating that post offered was in the PB- 1 Rs. 5200-20200 & GP Rs. 2800/-, whereas the post of MSW, for which he had appeared, was in the pay scale of Rs. 5550-9000/- (pre-revised) and, later, in PB 2 Rs. 9350-34850/- + GP Rs. 4200/-. He was informed that as and when any DR post in the said GP is available, he would be appointed against that post. He was, subsequently, offered the post of Technical Assistant on 31.05.2013, which he joined on 01.08.2013. His Joining Report is annexed by the Respondents as R-10. This post carried the pay scale of PB-2, Rs. 9350-34850 + GP Rs. 4200/-.
10. The applicant comes before us now against rejection of his letter, dt. 24.12.2013 (Ann. A-2) to place him in the GP 4600, vide letter, dt. 22.07.22014 (R-11) of the ICMR, conveyed vide Memo, dt. 01/02-09-2014, of the NIRT (formerly TRC), Chennai, (Ann. A-1). Direction is sought for appointing him to the post of Technical Officer - A in PB-2, Rs. 9300-34800 + GP Rs. 4600 w.e.f. 01.08.2013 with all consequential benefits.
11. We have gone through the order of this Tribunal passed on the 24 th July, 2013, in OA No. 465 of 2012 & MA No. 488/2012, filed by the applicant. The order therein is reproduced below :-
" The applicant has filed this OA under Section 19 of the Administrative Tribunals' Act, 1985 seeking the following relief:
"To call for records from the respondents and after going through them set aside the 4th Respondent's order No.RMRI/ICMR/Estt./1276/2011- 11 OA No. 1637/2014
12 dated 21.9.2011 and direct the respondents to appoint the applicant to the post of Medical Social Worker or to the post of TO-A in PB-2, Rs.9300-34800+ Rs.4600/-GP."
2. When the matter came up for hearing today, learned Additional Solicitor General, Mr.P. Wilson appeared for the respondents and produced the order in Ref.No.NIRT/Estt/Rectt/TA/2013-14 dated 31.5.2013 wherein the applicant has been offered appointment to the post of Technical Assistant in the pay scale of PB-2, Rs.9300-34800 +GP Rs.4200/- plus usual allowances as admissible under the rules in NIRT, Chennai. He further submitted that the post of Medical Social Worker for which the applicant had been selected was already abolished and therefore the applicant was given the above offer of appointment to the post of Technical Assistant in the pay scale of PB-2, Rs.9300-34800 +GP Rs.4200/-.
3 Learned counsel for the applicant Mr.S.Retnaswamy submitted that the applicant has not yet received the order in Ref No.NIRT/Est/Rectt/ TA/2013-14 dated 31.5.2013. He was given a copy of the order in Ref No NIRT/Estt/Rectt/ TA/2013-14 dated 31.5.2013 in the open court today and the same was also taken on record."
12. The applicant has now brought to our notice, in the Rejoinder filed on the 16th of Feb., 2017, that -
"2. I submit that in the second Respondent's letter dated 22.07.2014, it is stated that the applicant applied for the post of Medical Social Worker in the pay scale of Rs.5500-9000 in 2007, joined in 2013 after the order of honourable CAT in the grade pay of Rs. 4200 as Technical Assistant (MSW) in NIRT as per terms and conditions of offer of appointment dated 01.08.2013. As such, he is not eligible for appointment in up-graded/higher post of Technical Officer-A in the GP of Rs.4600 with retrospective effect.
3. The applicant submits that the third respondent, in reply to a RTI application, has stated in his letter dated 20.02.2012 as follows:
"As per RR, the Medical Social Worker post is re-designated as TO-A and the revised scale of pay of TO-A is PB-2, Rs.9300-34800 plus Rs.4600 as per sixth Pay Commission." (emphasis added)
4. The applicant submits that one similarly placed person namely Shri Senthil. S who was appointed as Medical Social Worker in February, 2009 in the Grade Pay of Rs.4200/- got his pay revised in the scale of pay of PB-2, Rs.9300- 34800 plus Rs.4600 with effect from 04.11.2009.
5. The applicant submits that the applicant joined the third respondent's office on 01.08.2013 and in view of the up-gradation given to a similarly person like the applicant, the applicant is also entitled for a similar treatment and is eligible 12 OA No. 1637/2014 to be placed in the Grade Pay of Rs. 4600/- with effect from 01.08.2013 in the post of Technical Officer-A. The relevant documents are submitted before this Honourable Tribunal for perusal."
We find that this point has not been covered in the earlier OAs.
13. In this regard, the representation, dt. 3rd Dec., 2012, of the said Senthil S., to the Director, NIRRH (ICMR), (A-3), reads as follows :-
"I am Senthil. S joined in Department of Clinical Research, NIRRH on 13.02.2009, as Social Worker through direct recruitment under the pay seale of PB-2, Rs. 9300-34800 + Grade pay Rs. 4200/-. As per ICMR Recruitment Rules and relevant orders, my designation changed as Technical Officer 'A' and placed in the same Pay Band with GP Rs. 4600/ w.e.f 04.11.2009 (ref. NIRRH Office Order No.: P-64(305)/09-Estt. Dated 3 September, 2010 & ICMR letter no.6/1/2009-Admn.II (NIRRI) dated 17.6.2010).
As per The Gazette of India Extraordinary Part II Section 3 (1), notification dated 29 August, 2008 under the first schedule (rules 3 &4) Part A Section II the pay scale of PB-2 9300-34800+ Grade pay Rs. 4600, entry pay in the revised pay structure for the direct recruits appointed on or after 1.1.2006 for PB-2, basic pay will be Rs. 12540 + GP Rs. 4600 = Rs. 17140 (Total).
I was drawing my salary with grade pay Rs. 4200/- till I was relieved from NIRRH. The revised pay fixation was done after I was transferred to NIRT, Chennai (ref. Office Memorandum No.: P-19(86)/Estt-09 dated 24.07.2012). My basic pay was not fixed as Rs. 12540/- corresponding to the GP Rs.4.600 w.e.f. 04.11.2009.
Kindly rectify this anomaly in my pay fixation at the earliest."
14. In response to the representation of the said Senthil S., vide OM, dt. 11.02.2013, the Sr. Administrative Officer, for the Director, National Institute for Research in Reproductive Health Genetic Research Center National Center for Primate Breeding and Research, replied as follows -
"I am directed to refer letter dated 03.12.2012 requesting to revise the pay of Shri. Senthil S. in the pay scale of PB-2 Rs.9300-34800+ Grade Pay Rs.4600/- and to inform that the post of Social Worker was advertised in the pay scale of 13 OA No. 1637/2014 PB-2 Rs.9300-34800+ GP Rs.4200/- and on his selection, appointment letter was issued on 05.02.2009. Accordingly his pay at entry level was fixed at Rs.9300 as per the advertisement and notification dated 29th August 2008 with Grade Pay Rs.4200/-. Subsequently the post of Social Worked was re- designated as Technical Officer-A and granted Grade pay of Rs.4600/- w.ef 04.11.2009. Accordingly his pay was revised vide office memorandum No P- 19(86)/Estt-09 dated 24.07.2012. Therefore, we do not find any anomaly in the revised pay fixation."
15. From the above communication, dt. 11.02.2013, to Shri. Senthil S., and the RTI reply, dt. 20.02.2012, to the applicant, it is clear that the post of Medical Social Worker has been redesignated as Technical Officer - A and the pay scale of Technical Officer - A has been revised as PB-2, 9300- 34800 with GP of Rs. 4600. Both the candidates, the applicant and Senthil S., had applied for the post of Medical Social Worker. In fact, the applicant had applied against the advertisement in the Hindu, dt. 24.06.2007, and stood first in the merit list. Senthil S had applied against the advertisement and notification, dt. 29.08.2008. The applicant was finally given the offer of appointment, after protracted legal battle, on 31.05.2013, and he joined the post of Technical Assistant (Social Work) on 01.08.2013.
16. From the facts brought to our notice in the Rejoinder, which have not been controverted by the Respondents, it is clear that the revised scale of pay for the redesignated post of Technical Officer - A is PB - 2 Rs. 9300-34800 with GP Rs. 4600. It has been implemented by the department in the case of another similarly placed official, Senthil S., who was selected on the basis of a subsequent notification / advertisement and who joined on 13.02.2009. 14 OA No. 1637/2014 There is no reason forthcoming from the Respondents, as pointed out by this Tribunal and the Hon'ble High Court above, as to why no appointments were made in pursuance of the notification of 2007, against which the applicant had applied and topped the list of successful candidates. On the direction of this Tribunal, he was offered a much lower post and, finally, the post of Technical Assistant with GP Rs. 4200/-. Allowing the designation and pay scale carrying higher grade pay in the case of an official who had applied for the same post of Medical Social Worker, against a later notification, and denying the same to the applicant is a clear case of discrimination and violation of Articles 14 and 16 of the Constitution of India. We, therefore, direct the Respondents to redesignate the applicant as Technical Officer - A and extend the revised pay scale of Technical Officer
- A to the applicant along with all consequential benefits from the date of his joining, ie., 01.08.2013. The above exercise shall be completed within a period of four months from the date of receipt of a copy of this order.
17. The OA is disposed of in the above terms. Pending MAs, if any, are closed. No order as to costs.
(M. Swaminathan) (Varun Sindhu Kul Kaumudi)
Member (J) Member (A)
19.07.2024
SKSI