Central Administrative Tribunal - Ernakulam
C.Subash Chandran Nair vs The Director General on 9 November, 2015
Author: P.Gopinath
Bench: P.Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Applicaton No.831/2011
Monday this the 9th day of November 2015
CORAM:
HON'BLE Mr.JUSTICE N.K.BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Mrs.P.GOPINATH, ADMINISTRATIVE MEMBER
C.Subash Chandran Nair,
S/o.Chandrasekharan Pillai.P.,
Projector Operator, CIFT, Matsyapuri,
Cochin. 14/1835/K.K.V.Road.
Residing at Chullikkal,
Post Thoppumpadi, Kochi. . . . . Applicant
(By Advocate Mr.P.V.Mohanan)
Versus
1. The Director General,
Indian Council of Agriculture Research,
Krishi Bhavan, Dr.Rajendra Prasad Road,
New Delhi - 110 001.
2. The Director,
Central Institute of Fisheries Technology,
Matsyapuri P.O., Willingdon Island,
Kochi - 682 029. . . . . Respondents
(By Advocate Mr.P.Santhosh Kumar)
This application having been heard on 29 th September 2015 this
Tribunal on 9th November 2015 delivered the following :
ORDER
HON'BLE Mrs.P.GOPINATH, ADMINISTRATIVE MEMBER The applicant was initially appointed as Projector Operator in Central Institute of Fisheries Technology (CIFT) in the scale of pay of Rs.1200- 1800/- with effect from 2.1.1991. He was adjusted as Technician, Grade T.2 (Projector Operator) with effect from 23.11.1994 in the scale of pay of Rs.1200-2040/- in Technical Service. He was promoted to the next high grade, namely, Grade T-1-3 in Category I in Technical Service with effect from 23.11.1999 in the scale of pay of Rs.4500-7000/- on completion of 5 years service from 23.11.1994. Again he was promoted to Grade T-3 in Category II with effect from 23.11.2004 based on the Modified Technical Service Rule issued on 3.2.2000 on completion of 10 years service from 23.11.1994. The applicant submits that he obtained the qualification of SSLC, competency certificate in Cinema Operation by the Board of Examination, Government of Kerala and obtained Cinema Operator License and that there is no diploma course in the relevant field available. Therefore, he claims that the incumbents who obtained competency certificate issued by the Board are qualified for selection and appointment as Projector Operator in Category II of Technical Service Rules in ICAR.
2. The Technical Service Rule of ICAR was issued in the year 1977 with effect from 1.10.1975. The relevant provisions of Technical Service Rule and Appendix IV (Workshop including Engineering Workshop Staff) are extracted hereunder :
Clause 3.1 The Technical Services are grouped into three categories consisting of the following grades :
Category Grade Pay Scale
Category I T-I Rs.260-6-290-EB-6-326-8-366-EB-8-390-10-430
T-2 Rs.330-10-380-EB-12-500-EB-15-560
T-I-3 Rs.425-15-500-EB-15-560-20-700
Category II T-II-3 Rs.425-15-500-EB-15-560-20-700
T-4 Rs.550-25-750-EB-30-900
T-5 Rs.650-30-740-35-810-EB-35-880-40-1000-EB-40-1200
T-6 Rs.700-40-900-EB-40-1100-50-1300
T-7 Rs.1100-50-1600
Category III
T-8 Rs.1300-50-1700
T-9 Rs.1500-60-1800-100-2000
Clause 6.1 Career Advancement of person will be in their respective categories and will be done in the following manner :
Clause 6.2 There shall be a system of merit promotion from one grade to the next higher grade irrespective of occurrence of vacancies in the higher grade or grant of advance increment(s) in the same grade, on the basis of assessment of performance. The persons concerned will be eligible for consideration for such promotion or for the grant of advance increment(s) after the expiry of five years service in the grade.
Clause 6.6 The assessment of eligible persons for merit promotion/grant of advance increment in Categories I and II will be done by a Selection Committee to be constituted by the Appointing Authority. The Chairman of the Committee will be a person from outside the Institute/Headquarters to be nominated by the Chairman of the Agricultural Scientists' Recruitment Board.
Clause 6.8 A person who is not found fit for merit promotion or grant of advance increment may be considered again at a subsequent stage or stages.
Clause 6.9 The procedure for assessment of persons for grant of merit promotion or advance increment has been detailed in Appendix III.
Clause 7.3 vacancies in Grade T-6 in Category III may also be filled by promotion of persons in Category II possessing qualifications prescribed for Category III.
Clause 8.3 The minimum educational/trade qualifications prescribed for different groups of the three categories will be as per Appendix IV. Any modification to this appendix, if considered necessary, will be made in consultation with the Agricultural Scientist's Recruitment Board.
Seniority
12. There will be no interse seniority amongst the personnel of the service for purposes of promotion.
Annual Assessment
13. The annual assessment of performance of the persons appointed to the three categories of the service will be recorded in the forms at Appendix VI.
Workshop including Engineering Workshop Staff Category I Category II Category III Essential qualifications Essential qualifications Essential qualifications
(i) At least one year's Trade *(i) Three years *(i) Three years Diploma Certificate Diploma/Bachelor's Degree Bachelor's Degree in in relevant field. relevant field.
(ii) At least 3 year's (ii) At least 5 years Experience for Diploma experience.
holders or Desirable qualifications Desirable qualifications
(i) Higher Higher Certificate/Diploma (i) Experience of working in Certificate/Diploma in the in the Trade with five years an Trade. experience in the relevant organization/workshop/facto field. ry of repute in the relevant field.
(ii) Two years experience in (ii) Master's Degree in the the relevant field. subject.
In the fields where the duration of Diploma Courses available in the country two years, the minimum qualification will be two years Diploma instead of three years Diploma.
3. The institute of ICAR, Central Institute of Fisheries Technology had a sanctioned post of Projector Operator for operating the projector at the institute prior to the introduction of the Technical Service Rule. The scale of pay attached the post was Rs.330-480/-. When Technical Service was introduced from 1.10.1995, the post was classified as Technical and the incumbent was placed/inducted in the Grade T-2 with the scale of pay of Rs.330-560/-. But in the year 1982, the post was reclassified as Auxiliary and in the Recruitment Rules circulated vide letter dated 20.4.1988, the scale of pay was indicated as Rs.1350-2200/- which was equal to the pre- revised scale of pay of Rs.380-640/-. The qualification set in the Recruitment Rule for direct recruitment is :
1. Matriculation or its equivalent from a recognized Board/University.
2. Must have good knowledge of 16 and 35 MM sound projector Machine and equipment used and elementary knowledge of electricity.
3. Must be able to make precision, adjustments, locate minor faults and be able to set them right and service the equipment.
4. Must be able to train others in operation of 35 MM and 16 MM Projectors.
5. Must have experience 4 years of operating Audio Visuals equipment including projectors and Tape records etc.
6. Must have a license from a competent authority.
4. The applicant was selected and appointed by proceedings dated 22.8.1991. He was appointed as Projector Operator in the scale of pay of Rs.1200-1800/-. The post of Projector Operator was re-classified as Technical from 23.11.1994 vide ICAR letter dated 1.8.1995 and the incumbent, the applicant, was inducted to Grade T-2 in the Technical Service. The applicant obtained the certificate of Projector Operator issued by recognized institution and there is no recognized institution in India issuing diploma/certificate for Projector Operation for one year duration or more. The applicant is qualified for entering in grades in category II as per the qualification stipulated in the Appendix IV of Technical Service Rules. Therefore, the applicant who had commenced service in September 1991 and was inducted in grade T-2 and obtained the qualification for category II must be placed/inducted in the Grade T-II-3 in category II with effect from 1.1.1995. Similarly placed technical personnel who was working as Projector Operator in CMFRI and obtained only competency certificate issued by the Department and not Diploma qualification, had been inducted into Grade T-II-3 in category II with effect from 1.1.1995. Similar orders had been issued inducting large number of Technical Personnel in the different institutes of ICAR, namely, CPCRI, CMFRI, CTCRI etc. The applicant is similarly placed and is entitled to get identical treatment.
5. The ICAR by letter no.F2102/IA-VI dated 18.11.2004 after considering the proposal, advised the CIFT to decide the issue in consultation with the State Education Department or Ministry of HRD. On query the Chief Electrical Inspector, Government of Kerala, certified that the Department of Electrical and Board of Examination are not conducting any diploma course in the relevant field. Even then no final order was passed.
6. In the meantime, the 2nd respondent by proceedings dated 27.6.2007 recommended to place the applicant in grade T-II-3 in terms of qualification obtained by him. However, the 2nd respondent by letter dated 28.8.2009 requested ICAR to grant induction to applicant into Grade T-II-3 in Category II. The applicant had submitted a detailed appeal petition on 22.3.2010 to ICAR seeking to consider the issue and promote with effect from 23.11.1999. Reference is made for placement granted to Shri.KC Chacko and N Naresh Kumar to grade T-II-3 with effect from 1.1.1995, who had obtained identical qualifications. The appeal petition was forwarded to ICAR by CIFT with recommendation that the applicant may be placed in Grade T-II-3 in Category II with effect from 23.11.1999, the date on which he was promoted to Grade T-I-3.
7. On introduction of the Modified Technical Service Rules with effect from 3.2.2000, the applicant had not opted the Modified Rules by express order. The post of Projector Operator is not incorporated in the relevant Group even after reclassification. The applicant, could not, by volition exercise option for pre modified Technical Service Rules as his claim is finalized only recently by the impugned order. The applicant is deemed to have opted the Modified Technical Service Rules by operation of the Modified Technical Service Rules. The applicant is certainly entitled to exercise option of the Pre-Modified Technical Service Rules in the light of the order passed in the O.A.No.219/2004 and confirmed by judgment in Writ Petition No.9827 of 2006 dated 19.3.2009 in identical case. The applicant is entitled to get induction/placement in grade T-II-3 in the Pre-Modified Technical Service Rules either with effect from 1.1.1996, the date on which the applicant had completed five years service as a Projector Operator (Technical T-2 Grade) or on 23.11.1999, the date on which the applicant was placed/promoted to the Grade T-I-3, which the 2 nd respondent recommended to do so. Instead, the applicant was placed in the Grade T-3 in the Modified Technical Service Rules with effect from 3.10.2004 causing grave hardship. The applicant was qualified to be appointed in terms of the Recruitment Rules. No recognized Institution/Government Organization is conferring Degree/Diploma in the relevant field. Therefore, it is an impossibility to obtain Diploma/Degree in the relevant field. Thus, the applicant must be deemed to have been inducted to Grade T II-3 in category II in Technical Service Rules with effect from the date on which the applicant has been inducted to Grade T-I-3 in category I in Technical Service Rules. He submits that he ought to have been inducted to grade T- II-3 in Category II of Technical Service Rule with effect from 1.2.1995 based on the amendment of the Technical Service Rules issued by the ICAR dated 1.2.1995. He prefers this O.A seeking induction/placement to grade T II-3 with effect from 1.2.1995 in the Pre-Modified Technical Service Rules and for all consequential benefits.
8. In the reply statement filed by the respondents in the case it is submitted that the technical posts are classified into seven (7) Groups viz.
(i) Field/Farm Technicians (ii) Laboratory Technicians (iii) Workshop Staff (including Engineering Workshop staff) (iv)Library/Information/ Documentation staff (v) Photography staff (vi) Artists and (vii) Press and Editorial staff. All technical posts under the Council with different designations are grouped and maintained for the purpose of identification of different duties performed by different functionaries based on the qualification/competency prescribed under the relevant Recruitment Rules. The applicant was appointed as Project Operator initially in the Auxiliary Category with effect from 2.9.1991. He was inducted into Technical Service in T-2 Grade with effect from 23.11.1994 under the Functional Group-II Laboratory Technician. He was granted merit promotion in T-1-3 grade (Cat.1) with effect from 23.11.1999. As the qualification prescribed for placement in T-11-3 grade (Cat.II) was Bachelor's Degree/3 years Diploma which was not possessed by the applicant his placement into T-II-3 grade could not be possible. Based on the modified Technical Service Rules applicable from 3.2.2000 which were duly opted by the applicant he was placed into T-3 grade (under Cat.-II) with effect from 23.11.2004 after completion of 10 years combined service in T-2 & T-1-3 grades. As per clause 6.2 of the Career Advancement Scheme prescribed in the Technical Service Rules in ICAR, the performance of the applicant for a further period of 5 years was got assessed by a duly constituted Assessment Committee for the purpose of merit promotion to the next higher grade of T-4 grade with effect from 23.11.2009. The Assessment Committee recommended for grant of advance increment to the applicant instead of promotion which was granted to him from 23.11.2009. Again after one year his case was considered by the Assessment Committee and as per recommendation the applicant has been granted merit promotion to T-4 grade with effect from 23.11.2010. The applicant will become due for promotion to next higher grade of T-5 (Cat.II) with effect from 23.11.2015.
9. It is submitted that the process of his initial induction into Technical Services with effect from 23.11.1994 as T-2 and further merit promotions granted upto the level of T-4 grade from 23.11.2010 was dealt with in accordance with the provisions of Rules related to Group II Laboratory Technician for which the essential qualification for placements in Category is 3 years of Diploma/Bachelors Degree/equivalent qualification in the relevant field which was not possessed by the applicant. The applicant had opted to be governed under the Modified Technical Services Rules effective from 3.2.2000. Accordingly he was placed in T-3 grade under Cat.II with effect from 23.11.2004 after completion of ten years combined service in T- 2 & T-I-3 grades. As the applicant did not possess the requisite qualification of 'Three year's Diploma/Bachelor's Degree/equivalent qualification in the relevant field' he was not eligible to be placed in to T-II- 3 grade (Cat.II) with effect from 23.11.1999. The Certificate of Competency in Cinema Operation possessed by him is not equivalent to 'Three year's Diploma/Bachelor's Degree/equivalent qualification in the relevant field' as required under the Recruitment Rules for Technical posts under Category-II of Technical Service Rules in ICAR. For want of requisite qualification the applicant is not entitled to placement into T-II-3 grade (Cat.II). But on the basis of the qualification and competency certificate actually possessed by the applicant his service conditions have been properly and promptly regulated under Category-I of the TSR. As a result the applicant was rightly placed in T-I-3 grade (Cat.I) and subsequently placed in T-3 grade under the modified Technical Service Rules with effect from 23.11.2004 after completion of ten years combined service in T-2 & T-I-3 grades. It is submitted that as per the advice from the 1st respondent it was ascertained from the Chief Electrical Inspector, Government of Kerala that it is not conducting any Diploma Course in the field of Cinema Operation vide Annexure R-2c letter No.G2-17593/06/CEI dated 15.11.2006. Respondents submit that the same procedure was also applicable to the case of Shri.K.Chacko. However, the representation of Shri.K.Chacko for placement into T-II-3 grade was erroneously processed under the provisions prescribed for the Technical posts under Group - III - Workshop Staff (including Engineering Workshop Staff) for which an alternative qualification of competency/proficiency certificate such as license for driving vehicles and duties in the vessels was prescribed. After granting placement of Shri.K.Chacko in T-II-3 grade with effect from 1.1.1995 the applicant had submitted his representation for similar benefit. However, on examination of his representation it was found that the same cannot be acceded to as he did not belong to the Functional Group - III - Workshop Staff (including Engineering Workshop Staff). At the time of processing his representation it was found that the placement in T-II-3 grade from 1.1.1995 granted to Shri.K.Chacko was wrong and a decision was taken to re-process the case for rectification. This, however, could not be done due to the fact that Shri.Chacko had already retired on superannuation on 31.5.2007, and become a pensioner and recovery from his pension was not possible in his case at this belated stage.
10. Heard counsel for the parties and considered the written submissions made. A similar case of Junior Laboratory Assistant covered by Technical Service Rules in CIFT was considered in O.A.No.219/2004 which was brought to the notice of the Bench.
11. The applicant had the qualifications set out in the Recruitment Rules as set out in para 3 above. Applicant has a certificate of competency and claims that there is no diploma in the relevant field available or conducted by the government or approved organization and hence he could not obtain the same. The respondents also have not refuted this contention. The respondents amended/revised the Recruitment Rules to provide a higher qualification and excluded the qualification earlier prescribed for the feeder grade. Instead of completely excluding the feeder grade from the promotional avenues they should have included as a corollary or rider the earlier lower qualification of certificate of competency of the feeder grade in the new Recruitment Rules to be operative till such time as persons in the feeder grade recruited under the said qualification and rules are phased out by promotion to higher grade or by attrition/retirement. So upgrading of the competency certificate to diploma/bachelor's degree qualification, has completely excluded applicant from higher promotional avenues. Applicant points out similarly placed employees in CMFRI and other allied institutes of ICAR who with a competency certificate has been inducted into T - II - 3 in 1995. This precedent appears to have been in the mind of the respondents when they promoted Shri.K.C.Chacko and N.Naresh Kumar to T - II - 3 in 1995 as they had identical qualification. A lot of correspondence appears to have taken place between 1 st and 2nd respondents in the applicant's case but leading to no relief for the applicant. In the meanwhile, Modified Technical Service Rules were brought into force with effect from 3.2.2000 but applicant, because of his nebulous status, did not opt for the said rules. As per advice of 1 st respondent, the 2nd respondent has obtained advice from Government of Kerala that it is not conducting any Diploma Course in Cinema Projector Operation. Hence there was/is no opportunity for upgrading applicant's qualification. Therefore, though the applicant was given higher grades in CAT.I his mobility to CAT.II was stymied in view of the fact that the qualification sought was not available to applicant as the state did not provide for such course of study for achieving the educational qualification in any of its institutions.
12. Whenever new qualifications are prescribed in Recruitment Rules as a consequence of restructuring, a small window of opportunity should be provided for protecting the right of the existing incumbent, not only for continuing in the existing post but also for promotion to the next higher post without insisting on the new qualification, by giving weightage to the experience on the job. The benefit which he would have so got is being denied on the ground of deemed option, for which he has not given anything in writing. Therefore it cannot be a reason for denying the benefits.
13. In the light of what have been stated above, the applicant's prayer to exercise option of pre Modified Technical Service Rules in the light of the order passed in a similar case of the same respondent in O.A.No.219/2004, confirmed by judgment in W.P.No.9827/2006 of 19.3.2009, is allowed. Applicant shall be placed in Grade T- II-3 in pre Modified Technical Service Rules with effect from 1.1.1996, the date on which he completed 5 years service as Projector Operator (Technical T-2 Grade). Consequential Assessment Promotion to higher grades in Category II based on Modified Technical Service Rules shall also be given subject to the condition that any benefits he has got in the earlier promotion/career progression which he is not entitled to as a result of relief granted above shall be refunded to the Institute within a period of one month from the date of receipt of a copy of this order. Applicant is entitled to be considered with available qualification for the above post with consequential benefits arising out of such promotion. No order as to costs.
(Dated this the 9th day of November 2015)
P.GOPINATH N.K.BALAKRISHNAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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