Central Administrative Tribunal - Delhi
Pankaj Kumar vs Ministry Of Electronics & Information ... on 13 January, 2023
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O.A. No. 1574/2020
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No. 1574/2020
Friday this the 13th day of January, 2023
Hon'ble Mrs. Harvinder Kaur Oberoi, Member (J)
Pankaj Kumar
Dy Director(Software)
Room No. A-111, Computer Division
Indira Gandhi National Open University
Maidan Garhi, New Delhi - 110068
...Applicant
(By Advocate: Mr. Ravi Kumar)
Versus
National Institute of Electronics & Information Technology
Through Director General
PSP Pocket, Plot No. 3, Sector 8 Dwarka
New Delhi - 110077
...Respondents
(By Advocate: Mr. Gyanendra Singh)
Reserved on: 04.01.2023
Pronounced on: 13.01.2023
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O.A. No. 1574/2020
ORDER(ORAL)
The present application has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
(a) Quash the order dated 06/06/2019 (Annexure- Al)
(b) Direct the respondent to grant applicant three increments as the incentives for acquiring higher qualification w. e. f. 23.04.2009.
(c) Direct the respondent to give the applicant the interest on due amount every month because of increments (incentive) w. e. f. 23.04.2009 as per EPF Rates (9% of interest) from the date the amount got due to till date compounded monthly.
(d) Direct respondent to bear all the expenditure of legal proceedings done by the applicant. Cost of the litigation be also awarded in favour of the applicant.
(e) Pass any other further order/s which this Hon'ble Tribunal may deem fit and proper under the facts and circumstances of the case, in the interest of justice may kindly be passed.
(f) Direct respondent to have action against persons responsible for delay and arbitrary decisions.
2. The brief and relevant facts of the matter are that the respondent NIELIT erstwhile DOEACC Society erstwhile Regional Computer Centre(RCC), Chandigarh issued an advertisement dated 06-12.01.2000, for recruitment to the post of Software Engineer, Trainee System Analysts and Trainee Junior Programmers. In pursuance of the said advertisement, the applicant applied and was appointed to the post of Trainee System Analyst (TSA), based on his qualification of M.Sc.(Physics), vide letter dated 20.03.2001. On 02.04.2002, the applicant was 3 O.A. No. 1574/2020 confirmed/absorbed as System Analyst (SA), with probation of two years. In the month of December, 2002, RCC, Chandigarh, RCC, Kolkata and several other Centres for Electronics Design and Technology of India were merged to form DOEACC Society. The applicant thereafter wanted to pursue higher education i.e. M. Phil(Computer Science) and vide letter dated 10.07.2006, respondents granted him permission for pursuing the same. Accordingly, the applicant pursued M.Phil(Computer Science) from Annamalai University and completed the same in the year 2009. Vide letter dated 23.04.2009, the applicant informed the same to the respondent and requested for updation of his qualification details in the official records as well as for grant of incentive for acquiring higher qualification i.e. M.Phil(Computer Science). Due to inaction of the respondents upon the said representation, the applicant sent reminders dated 07.02.2014, 27.02.2015, 06.10.2016, 21.10.2016, 25.10.2016 and 20.06.2017, reiterating his request for incentive in the form of three increments for acquiring M.Phil(Computer Science) as per the NIELIT Service Rules and Delegation of Powers. However, no response was received from respondents whereas others were granted the said benefit, one Smt. R. Lakshmi who 4 O.A. No. 1574/2020 had completed her M. Phil(Computer Science) during the course of service alongwith the present applicant in the year 2009, was granted three increments w.e.f. 23.04.2009 for acquiring higher degree vide order dated 13.07.2015.
3. Another case of one Smt. Kanchan Rani was processed by the respondents and she too was granted increments for acquiring M. Phil(CS) as the same was higher than her qualification of MCA. It is another matter that the increments granted to Smt. Kanchan Rani were later withdrawn vide letter dated 06.06.2019 (impugned order), only to deny the same to the applicant.
4. Applicant came to know that his request for grant of increments for higher qualification of M.Phil(CS) had already been processed and rejected on 27.02.2015 in file without informing the applicant of the said rejection, for the reason that since the applicant was appointed on the basis of his M.Sc(Physics) Degree, which is also a post- graduate degree, increments cannot be granted for obtaining another degree of post-graduation. Consequently, applicant made a representation dated 20.03.2018 to the respondent challenging the rejection of his request for grant of increment while stating that M. Phil is a higher degree than M.Sc./MCA as M.Sc is the qualification degree 5 O.A. No. 1574/2020 for admission into the course for M.Phil(CS) Degree. Thereafter, the applicant wrote another letter dated 28.05.2018 reiterating that M. Phil is a higher degree than any other Masters Degree. Thereafter, the applicant filed various RTIs asking the respondents for the Recruitment Rules(RR) for the post of System Analyst as applicable in 2009, in response of which, he was informed that the Society RRs were only finalized in 2013 and that it does not have M. Phil as an essential or desirable qualification for Systems Analyst. On 10.12.2018, the applicant made a comprehensive representation to the IT Secretary(Chairman, Management Board, NIELIT) reiterating his request for grant of increments based upon the aforementioned grounds. That ultimately respondents decided to form a three member Committee to deliberate on the representation of the applicant alongwith other similar cases.
5. That applicant filed OA No. 2902/2019 while his representation remained pending with the respondents. During the pendency of OA, the respondents passed order dated 06.06.2019 thereby rejecting the representation of the applicant stating that he is not entitled for any increments as per the pre-merger RCC's Recruitment Rules 6 O.A. No. 1574/2020 read with Rule 2.21.9(e)[Guidelines] of DOECC Staff Rules, 2004. Accordingly, the applicant withdrew OA No. 2902/2019 with liberty to file the present OA in order to enable him to challenge the rejection order dated 06.06.2019. In this way the present OA came to be filed.
6. In response respondents have filed Affidavit in reply, wherein they have stated that there was no post such as Trainee System Analyst in the then prevailing Recruitment Rules of RCC, Chandigarh and the applicant was selected as a trainee for the post of System Analyst for undergoing the pre-appointment requisite training for the post and absorption to the said post. It is further stated that the NIELT's policy for grant of incentive upon acquiring fresh higher qualification from time to time is bound to adhere to para 8.1 of DOPT OM dated 15.03.2019, which provides criterion/guideline for granting incentive for acquiring fresh higher qualifications to the effect that the incentive will not be available for the qualifications which are laid down as essential or desirable qualifications in the recruitment rules for the post. It is further stated that the case of Smt. Kanchan Rani was re-examined (by the three member committee) whereupon administrative lapses were identified and accordingly, the entire incentive amount drawn by her 7 O.A. No. 1574/2020 was recovered. It is further stated that the case of Smt. R. Lakshmi is not comparable with the applicant as she joined at a junior post ie. Junior Programmer in Group 'B' carrying different eligibility criteria while the applicant was absorbed to Group 'A' post as System Analyst and as such, the applicant does not satisfy clause 2.21.9(e) of the Recruitment Rules of RCC, Chandigarh. It is further submitted that the Internal Committee constituted for the purpose of deliberating on the representations of the applicant as well as several others consisted of senior officers who have varied and rich experience in dealing with administrative and establishment matters and dealt with the representations in a fair and rational manner. It is further submitted that the parity drawn by the applicant is not in line with the fundamental spirit of incentive policy but just to justify his own claim. It is submitted that the stand of NIELET is that M.Phil is a post graduate degree and cannot be considered as higher in case where having a post graduate degree is essential/desirable qualification.
7. The applicant has filed rejoinder wherein he has reiterated the averments made by him in the Original Application.
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8. Heard learned counsel for the parties at length. I have carefully gone through the original application, reply affidavit, rejoinder as well as the submissions of the parties.
9. The main issues involved in the present OA are whether M. Phil(CS) can be said to be a higher qualification than M.Sc (Physics), based on which the applicant was recruited and whether M. Phil was an essential qualification at the time of applicant's recruitment to the post of Trainee System Analyst.
10. The advertisement dated 06-12.01.2001 issued by Regional Computer Centre in pursuance of which the applicant was recruited is Annexed as A02 in the present OA. The relevant portion of the same is reproduced below:
"Trainee System Analysts Stipend: Rs. 4500/-P.M. for first six months & S500/- for subsequent six months Age Limit: 28 Yrs. as on 1.6.2001 Period of Training: 6 months Qualifications:B.E.(Computer Science)/MCA/B level of DOEACC OR Master's degree in Science,Mathematics, Statistics, Economics, Commerce, Operations Research with 'A' level from DOEACC/ Post-Graduate diploma in Computer Science/ Applications from a recognised University/Institution OR B.Tech/B.E, with 'A' Level from DOEACC/PGDCA with 60% marks in aggregate in cach degree/diploma."9 O.A. No. 1574/2020
From the aforesaid advertisement, it is clear that the essential qualification for the post of Trainee System Analyst was an Engineering or a Master's degree. No where in the advertisement/RR's has the degree of M. Phil been mentioned as essential or desirable. Even a Bachelor's degree in Computer Science was considered enough to become eligible for the said post and as such, the applicant based on his Masters degree of M.Sc (Physics) got selected for the said post. Just because a Masters Degree was essential/desirable and mentioned in the RR's and that Masters degree is a post Graduate degree would not mean that MPhil would come in the category of a Masters Degree. The UGC Guidelines as discussed below become relevant here as they point out to the hierarchy amongst various degrees offered by the Universities.
11. Remarks dated 30.11.2015, on the notesheet regarding grant of increments to Smt. Kanchan Rani, reads as follows:
"In my opinion all degrees after graduation fall under 'Postgraduate degree' including M. Phil/Ph.D. M. Phil is a research degree and minimum qualification/essential qualification for admission is M. Phil program is master degree. Even for Admission in M. Tech course, MCA is eligibility criteria. This is 10 O.A. No. 1574/2020 very clear that M. Phil is higher degree than MCA."
The noting would show that even as per respondents themselves M.Phil is a higher qualification than MCA. Applicant has also relied upon the gazette notification issued by the University Grants Commission (UGC). As we know UGC being a statutory Organization of the Government of India, for the coordination, determination and maintenance of standards of teaching, examination and research in university education has issued this notification describing the levels od various degrees.The relevant portion of the Gazette of India, July 5: University Grants Commission, Specification of Degrees, March 2014 reads as follows:
Universal/Common to All Disciplines Abbreviated Expanded Level Minimu Entry m Qualifica Duration tion 1 M. Phil Master of Pre 1-1/2 MASTER' Philosophy Doctoral S Bare perusal of the remarks on the notesheet of Smt. Kanchan Rani coupled with the aforesaid Gazette makes it clear that Master's degree being the Entry 11 O.A. No. 1574/2020 qualification/pre-requisite for M. Phil makes, M.Phil a higher qualification than Masters degree. As such following the UGC Notification MPhil ought to be considered higher that masters degree and respondents ought to have given the incentive to the applicant for obtaining M. Phil(CS).
12. Further, another set of notings received by the applicant under RTI vide letter dated 03.09.2019, also clearly mention that M. Phil is higher qualification in comparison to M.Sc. The relevant portion of the same is quoted below:
"M. Phil(Computer Science) is higher qualification in relation to the Masters in Computer Science or Science etc. Accordingly, 3 increments granted to Smt. R. Lakshmi, STO vide Office Order No. NIELIT/NDL/592(35)/1041 dated
13.07.2015 is found to be in order."
13. Applicant claims incentive increment for acquiring Higher degree M.Phil. The very purpose of granting incentive increment is to encourage the employees to acquire higher qualification as the same would ultimately benefit the organizations. The knowledge acquired by the employees by acquiring higher qualification is rewarded by way of incentive increment. The Applicant acquired Post Graduate Degree of M.Phil, after due permissions and information to the respondents that he was pursuing the 12 O.A. No. 1574/2020 same, qualification for which incentive increment ought to have been paid.
14. But unfortunately, the three member committee while considering the case of the applicant errerred in declaring that applicant is not entitled to incentive increment for higher qualification by treating MPhil as merely a post graduate degree and not higher qualification.
15. I do not think the aforesaid observation of the Committee can stand the scrutiny of logic or even reality. The obvious intention in granting an incentive increment is for attracting higher qualified people or for encouraging the existing employees to acquire higher qualification, even though in service, so that the quality of service would improve. This is obviously on the assumption that a higher qualified person could work more efficiently. Therefore, it defies logic as to why a person who was already qualified and holding Masters degree (which is a post graduate degree) would take the pain to purse and obtain an M.Phil Degree (entry qualification for which is Masters) and would not get an incentive increment, if such an incentive increment is given to a lower qualified person in service, who acquires subsequently such higher qualification. Such a differential treatment would not stand the scrutiny of 13 O.A. No. 1574/2020 right to equality as enshrined in Articles 14 and 16 of the Constitution.
16. Considering the above facts and circumstances, as well as the stand of the respondents in their noting coupled with the Gazette of India dated 5th July, 2014, it is crystal clear that M. Phil is a higher qualification than M.Sc and the colleagues of the present applicant were granted increments upon acquiring M. Phil(CS). Though the increment of Mrs. Kanchan Rani were withdrawn, the increment of Mrs. Lakshmi was found to be in order as per the above quoted notesheet. In view of this, in my considered opinion, the impugned order dated 06.06.2019 is unjust and unfair. I hereby quash and set aside the same. Respondents are further directed to grant increments to the applicant for obtaining the degree of M.Phil(CS) as per the rules while considering that M.Phil(CS) is a higher qualification in comparison to M.Sc. Such increments should be granted within a period of six weeks from the date of receipt of this order without any interest. I am denying interest to the applicant as applicant has delayed in approaching the Tribunal. He is claiming incentive w.e.f. 2009 and he has filed this OA after 06.06.2019 when the three member committee considering 14 O.A. No. 1574/2020 the case rejected the same. Although the applicant is found to be entitled to the incentive he could have approached the Tribunal after 2009 and need not have waited for the rejection of his representation for 10 years. OA is allowed in the aforesaid terms. Pending MA(s) if any shall stand disposed off. There shall be no order as to costs.
(Harvinder Kaur Oberoi) Member(J) /gm/