Central Administrative Tribunal - Madras
B.Sc. Mlt Laboratory Technicians ... vs Union Of India (Uoi) And Anr. on 23 January, 2007
Equivalent citations: 2008(1)SLJ327(CAT)
ORDER
P. Shanmugam, J. (Vice-Chairman)
1. The first applicant is an association of Science Degree B.Sc. MLT-holders working as Laboratory Technicians in the second respondent's institution. The second applicant is one of the members of the association working as laboratory technician. They have prayed for the following relief:
1. This Hon'ble Tribunal may be pleased to issue directions directing the respondents to take a decision as to the equivalence of a certificate-holder and a diploma-holder in laboratory technology approved by All India Council for Technical Education in consonance with the requirement of the recruitment rules for the post of technical assistant and not otherwise.
2. And thereafter to effect promotions to the post of Technical Assistant by considering the qualification of Laboratory Technicians in consonance with the requirement of the recruitment rules, which is in force as on the date of arising of vacancies and as unamended today and
3. Pass such further and/or other order as this Hon'ble Tribunal may be deem fit and proper in the circumstances of the case and thus render justice.
2. According to the applicants, the members of the association are presently working as Laboratory Technicians in various departments (28 departments) namely Pre/Paraclinical, Surgical and Medical departments under the second respondent. The further avenue of promotion is to the post of Technical Assistant and as on date there are more than 18 vacancies lying. According to them, due to the inconsistent stand taken by the respondents contrary to the recruitment rules, promotion to the posts of Technical Assistant is being deprived and delayed and interfered with. The contrary position taken by the respondents is against the rule of law and settled principles of service law and therefore they have no other alternative but to file the above O.A. for the relief sought for.
3. The respondents have filed a reply. According to them, the selection to the post of Laboratory Technician is by non-selection method. If the seniors are overlooked for any reason, it would be violating the guidelines and Constitutional provision and hence they have taken a decision to promote the senior most Lab Technicians. According to them, if the respondents have to follow the notified recruitment rules, the applicants have to wait for the seniors to get qualified. Hence the respondents have to consider the senior most persons to the post of Laboratory Technicians considering their vast experience. They have specifically pleaded that the respondents have taken a decision to promote the senior most Lab Technicians with the minimum requisite qualification in the first instance, keeping in view all their experience in the post of Laboratory Technician and therefore they have prayed for the dismissal of the O.A.
4. We have heard the learned Counsel and considered their submissions carefully. The question that arise for consideration in this O.A. is:
Whether the promotion to the post of Technical Assistant is to be made as per the recruitment rules or not.
5. All the applicants are working as Laboratory Technicians. The qualification prescribed as per the notified rules under Article 301 of the Constitution of India namely, "The Jawaharlal Institute of Post Graduate Medical Education and Research, Pondichcrry (Group C & D Posts) Recruitment Rules, 1983" and schedule under Rule 4, Method of recruitment, Age limit, Qualification are as follows:
Name of post Educational and other qualifications
required
3. Technician/Laboratory (i) Matriculation or its equivalent
Technician (ii) Diploma in Laboratory Technology with
two years experience
or
Degree in Science with one year experience
The further promotion to the post of Laboratory Technician is Technical Assistant. The Government of Pondicherry framed a separate statutory rules under Article 309 of the Constitution of India called The Jawaharlal Institute of Post Graduate Medical Education and Research, Pondicherry, Technical Assistant Recruitment Rules, 1993. Under the schedule to Rule 4 providing for the method of recruitment and qualification as follows:
Name of Scale of Whether Whether age Method of In case of If a Departmental
Post Pay Selection and educational recruitment, recruitment by Promoton
post or qualifications whether by promotion/ Committee exists,
non- prescribed for direct deputation/ what is its
selection direct recruits recruitment transfer, grades composition
post will apply in or by from which
case of promotion promoton/
promotees or by deputation/
deputation/ transfer to
transfer and be made
percentages
of the
vacancies to
be filled by
various
methods
Technical Rs. 1400 Non- Age:No 100% by Promoton: 1. Director-
Assistant -40- selection Educational promotion Technical/ Chairman
1800- Qualification: failing Laboratory 2. Dean-Member
EB-50- No, but should which by techincian with 3. A Group 'A'
2300/- possess at least direct 5 years regular Officer preferably
Diploma in recruitment service in the belonging to
Laboratory grade Scheduled Caste
Technology or Scheduled
Tribe-member
4. Deputy Director
(Administration)-
Membcr.
From the above statutory rules, it is mandatory for a Laboratory Technician to possess matriculation with Diploma in Laboratory Technology with two years experience and the educational qualification required for a promotee Technical Assistant is Diploma in Laboratory Technology with 5 years service in the grade. The post of Technical Assistant is to be filled up 100% by promotion.
6. As far as the importance of the required qualification for Technical Assistant is concerned, the Director General Services, New Delhi in his letter dated 2.1.96 has stated as follows:
With reference to your letter No. Estt. 12-9/87-Vol. II dated 2.1.1996 on the subject noted above, I am directed to say that the post of Technical Assistant is a higher post in the hierarchy of Laboratory service. Incumbents of the posts have to perform very responsible duties. In this era of high proper performance of duties attached to the post. There is an appreciable difference in the quality of working and understanding of Laboratory techniques between a MLT diploma-holder and a non-diploma technician. It would be a retrogressive step to do away with the recruitment of diploma it is therefore necessary to keep the qualifications of MLT diploma for promotees to the post. It is also suggested that all Laboratory Technician should be encouraged to acquire the qualification of Diploma or at least should get in service training for MLT.
(Emphasis Added)
7. Thus, it could be seen that besides the statutory recruitment rules and the first respondent has categorically spelt out the educational requirement of the Technical Assistant. While so, the stand of the second respondent in the reply filed in this O.A. is contrary to the Recruitment Rules and the Director General's letter. Their reply is as follows:
It is submitted that as per the GOI guidelines in respect of promotion made by Non-Selection method, if the seniors are overlooked for any reason, then that decision will clearly violate the guideline of GOI and the Article 309 of the Constitution of India as well as against the statutory rule. Hence, the respondents have taken a decision to promote the senior most Lab. Technician in the first instance keeping in view of their experience in the post of Laboratory Technician. Further, the subsequent decisions in this matter are only the directions of the Hon'ble CAT and High Court of India. Hence, there is no reluctance of inconsistency in taking a decision on the part of the respondents.
It is submitted that the respondents are very much aware of the concept of Certificate, diploma and degree, whereas in the instantcase, the basis criteria to be considered is that the method and mode of selection. Hence, the respondents have taken a decision to promote the senior most Lab. Technicians with minimum requisite qualification in the first instance keeping in view of their experience in the post of Laboratory Technician.
8. It is not open to the second respondent to deviate the method of recruitment and the qualification prescribed for the recruitment. In our view, the second respondent has misunderstood the scope of the non-selection method of promotion by holding that a senior Laboratory Technician can be promoted notwithstanding the lack of required educational qualification overlooking a senior Laboratory Technician for promotion for want of essential qualification cannot violate Government of India instructions and the Constitution of India. This in our view is per se wrong and illegal approach.
Even though the prayer of the applicant is for a direction to the respondent to take a decision as to the equivalence of the certificate-holder and a diploma-holder in consonance with the recruitment rules, we find that the second respondent has taken a decision as set out in Paragraphs 5, 7 and 9 of the counter to promote the senior most technicians without reference to the educational qualification. The said decision is therefore clearly arbitrary and illegal. Consequently, the applicants who possess the qualifications prescribed in the recruitment rules have to be considered for the promotion.
9. In reference to the question whether the certificate-holders without the required qualification of diploma came up for consideration before this Tribunal in O.A. No. 331/98, this Tribunal by order dated 1.9.1999 has held as follows:
In Misc. Application No. 422/99 the applicant has impleaded two respondents namely 18th and 19th respondent, one Mr. T.S. Sivasubramanian and Shri K. Kaliaperumal. As we have already stated the promotion in challenge on the ground that the promotees do not fulfil the recruitment rules in the sense that they do not possess the diploma in Laboratory Technology and as such the DPC in our view have overlooked the applicant's claim. According to the arguments of the learned Counsel for the applicant, when there were persons who have been called according to the recruitment rules, the DPC should have considered them than promoting, persons who do not fulfil the essential educational qualifications. Though it is a settled law within the ad hoc promotion, the Tribunal need not interfere but as per the Union Territory of Pondicherry is concerned the practice where all the promotion are granted only on ad hoc basis it is allowed for number of years. As such the Union Territory of Pondicherry is concerned, we have to take factual matrix and if it is taken account, we are of the view though promotion was given on officiating basis or temporary basis, they are against the recruitment rules. As such the promotions granted to the private respondents are set aside and DPC is directed to review the cases once again, a direction is given to the official respondent to hold a review DPC and consider the names of the eligible Lab Technicians who have to be promoted as Technical Assistants. In so far as the 12th respondent is concerned, the official respondent should consider the fact whether there was any recruitment rules in 1966 which required a particular qualification. The impugned orders are set-aside. The application is stand allowed. The review DPC to be conducted within a period of one month from the date of receipt of a copy of this order. The original application is allowed accordingly.
(Emphasis added)
10. As against the selection of the qualified Lab Assistant another batch of O.As. were filed before this Tribunal in O.A. 342/2000. This Tribunal by order dated 1.2.2001 while holding that diploma and training certificate is not equivalent but considering the letter of the Director General dated 2.1.1996, quashed the selection and directed the official respondents to consider whether the applicants therein were holding equivalent qualification. The said order of the Tribunal was confirmed by the Hon'ble High Court in W.P. No. 6965/ 2001 dated 4.7.2006. The Hon'ble High Court held as follows:
As could be seen from the facts stated above, the minimum Qualification required for the promotees is at least a Diploma in Laboratory Technology. Further it could be seen that the respondents 4 to 10 are possessing a certificate in Lab Technology which is a one year course. The Tribunal has also issued a specific direction to consider whether the applicants therein also possess the equivalent qualification as that of a diploma. The Tribunal has also drawn the support from the letter dated 21.6.1996 addressed to the third respondent by the Director General of Health Services, wherein it is stated that all Laboratory Technician should be encouraged to acquire the qualification of Diploma or at least should get in service training in Medical Laboratory Technology. Therefore, the Tribunal based on the above said reasonings has come to such a conclusion of quashing the selection of the private respondents therein and directed the third respondent to consider the case of the respondents 4 to 10, which in the circumstances of the case needs no interference by this Court. Accordingly, we dismiss the writ petition. However, we make it clear that after considering the case of the respondents 4 to 10, the petitioners have to be considered and promoted and their seniority shall be fixed as per rules. In the circumstances, there will be no order as to costs.
(Emphasis added) It is relevant to mention here that the Director of JIPMER in O.A. 342/2000 took up a stand that certificate Lab Technician courses are not sufficient qualification for promotion to the post of Technical Assistant. It is stated by him as follows:
It is humbly submitted that the Recruitment Rules arc not approved by the respondents themselves and they are streamlined at various channels and approved by the DOPT, New Delhi. The respondent No. 3 conducted the review DPC according to the notified Recruitment Rules and as per the directives of the Hon'ble Central Administrative Tribunal and those who satisfy the RecruitmentRules were promoted.
It is humbly submitted that the 7th respondent is a Science (B.Sc) (Physical) degree-holder apart from certificate in Lab Technology Course and hence he satisfies the Recruitment Rules and therefore he cannot be compared with the applicants who do not possess the science degree.
It is humbly submitted that all the applicants were considered in the review DPC held on 7.11.99 but they could not be promoted as they were not satisfying the Recruitment Rules.
The question that arises before us is whether the issue regarding the 1993 Recruitment Rule relating to Technical Assistant in reference to the requirement of educational qualification has been settled.
11. While this Tribunal in O.A. 331/98 has taken a clear view that non-possessing of diploma and laboratory technology would not entitle a promotion to the post of Technical Assistant as per the Recruitment Rules whereas this Tribunal in O.A. 342/2000 did not hold that the Recruitment Rules are not to be followed and that training certificate is equivalent qualification to that of a diploma. The Tribunal has only directed the respondents to consider the equivalence. The Hon'ble High Court has upheld the said direction. Now, the respondents have taken a decision that the qualification is not relevant for the purpose of promotion. As we have seen that the stand of the second respondent is directly opposite to the Director General's letter dated 2.1.1996 in reference to the subject of promotion to the post of Technical Assistant and the importance of the qualification of diploma. This Tribunal in O.A. 342/2000 has stated clearly as follows:
We are not holding that diploma and training certificate is equivalent.
But however liberty was given to the respondents to take a decision on its equivalence. Therefore, it cannot be stated that the issue regarding qualification has been finally settled.
12. Learned Counsel Mr. M.T. Arunan strenuously pleaded that there are four Laboratory Technicians who entered the service even prior to 1982 with a training certificate and they are continuing as such without further promotion to the post of Technical Assistant. They being the senior most Laboratory Technicians can be considered for further promotion. This argument forgets the stand of the Director Genera! in his letter dated 2.1.1996 wherein it is stated that to consider the case of certificate-holders would be retrogressive step and it will he necessary to keep the qualification of MLT diploma for promotees to the post. It is to be seen that the certificate-holders do not even satisfy the minimum qualification prescribed for Laboratory Technician and if really the respondents wanted to provide them further avenue of promotion they could have either modified the rules or relaxed the rules if so permitted under the rules in favour of the certificate-holders or provided them in service training for M.L.T or encourages to acquire qualification of Diploma. The plea of the learned Counsel for the respondents is mainly to support the case of the certificate-holders. It has to be borne in mind that a statutory recruitment rule cannot be watered down to suit the convenience or the requirement of few individuals. The statutory rule has to be given due weight and force in its applicability.
13. It is well settled principle of law that when a qualification is prescribed for promotion, a promotee has to satisfy the qualification. In Subash Jain v. Desu , a Three Bench of the Hon'ble Supreme Court held as follows:
It is equally clear that when a qualification has been prescribed for a post, that cannot be obliterated by posting those who do not have that qualification as against those who have that qualification.
In Purandas v. Union of India , the Hon'ble Supreme Court held that promotion of a person not having requisite basic qualification under the rules at the time of consideration for promotion is illegal. Their Lordships observed as follows:
The appellant could not be considered for promotion as he did not have the basic qualification under the Indo-Tibetan Border Police (Non-Gazetted Telecommunication Cadre) Rules, 1983 (in short "the Rules"). The appellant had qualified Grade II test and Grade I test in March 1984 and June 1986 respectively. He became eligible for promotion test i.e. 'D' list test and became qualified subsequently. The question of giving any retrospective effect to his qualification is clearly impermissible.
In Mohd. Sartaj v. State of U.P. , the Hon'ble Supreme Court held that a candidate should possess the requisite qualification on the date of recruitment and not at a lower stage. Their Lordships held as follows:
It is settled law that that qualification should have been seen which the candidate possessed on the date of recruitment and not at a later stage unless rules to that regard permit it. The minimum qualification prescribed under Rule 8 should be fulfilled on the date of recruitment.
In Rajkumar v. Rohtas 2006 SCC (L&S) 648, the Hon'ble Supreme Court held that a promotee should have therequired qualification at the date of promotion and not subsequently. In P.M. Latha v. State of Kerala 2003 SCC (L&S) 339, the Hon'ble Supreme Court held that prescription for particular qualification is a policy decision. Their Lordships observed as follows:
Whether for a particular post, the source of recruitment should be from the candidates with TTC qualification or B.Ed, qualification, is a matter of recruitment policy. We find sufficient logic and justification in the State prescribing qualification for the post of primary teachers as only TTC and not B.Ed. Whether B.Ed. qualification can also be prescribed for primary teachers is a question to be considered by the authorities concerned but we cannot consider B.Ed, candidates, for the present vacancies advertised, as eligible. Equity and law are twin brothers and law should be applied and interpreted equitably but equity cannot override written or settled law. The Division Bench forgot that in extending relief on equity to B.Ed. candidates who were unqualified and yet allowed to compete and seek appointments contrary to the terms of the advertisement, it is not redressing the injustice caused to the appellants who were TTC candidates and would have secured a better position in the rank list to get appointment against the available vacancies, had B.Ed. candidates been excluded from the selections.
In Yogesh Kumar v. Government of NCT, Delhi 2003 SCC (L&S) 346, the Hon'ble Supreme Court held that recruitment of public service should be held strictly in accordance with the recruitment rules. Deviation from the rules allowing entry to ineligible persons deprives the qualified persons for the posts. It was also held by their Lordships that merely because there was some deviation in the past and departure was made, the same cannot be allowed to continue.
14. It is also settled principle that the qualification and its equivalence is the matter of decision of the recruiting authority. The stand of the respondents that it would be against equality not to promote the seniors on the ground that since they are seniors they are entitled to be considered for promotion cannot be sustained. Equality cannot override written or settled law. The said view is confirmed by the Hon'ble Supreme Court in Dilip Kumar Ghosh, v. Chairman . It was held that fixation of qualification is a matter of recruitment policy. Learned Counsel for the respondents Mr. M.T. Arunan referred to the judgment of the Division Bench in a Contempt Petition No. 29/1006 dated 15.3.2006. In the said order their, Lordships held as follows:
We have no doubt in our mind that the certificate obtained by the petitioner from the Government of Tamil Nadu can be considered as equivalent to a Diploma issued by the other institutions including the private institutions. Therefore, on that score the candidature of the petitioner should not be rejected.
It is seen that the Hon'ble High Court did not go into the recruitment rules and its mandatory requirement. Their Lordships also did not go to the details as to how the certificate obtained by the petitioner in that case could be considered equivalent to a diploma. Therefore, in our view, the said order in contempt petition should be applicable to the facts of that case and cannot be of any assistance to the respondents in this case. It is settled law that the principle of underlying decision is a binding precedent:
30(c). In C.I.T. v. Sun Engineering Works (P.) Ltd. , Their Lordships of the Hon'ble Supreme Court held as follows:
...A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the Courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reasonings.
(Emphasis added) 30(d). In P.A. Shah v. State of Gujarat and Ors. , Their Lordships held that a decision ordinarily is a decision on the case before the Court while the principle underlying the decision would be binding as a precedent in a case which comes up for decision subsequently. The Court has to carefully ascertain the true principle laid down in the previous decision. It was held that the scope and authority of a precedent should never be expanded unnecessarily beyond the needs of a given situation.
30(e). In Ambica Quarry Works etc. v. State of Gujarat and Ors. , the Hon'ble Supreme Court has held that the ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides and not what logically follow from it.
30(f). In Ashwani Kumar Singh v. U.P. Public Service Commission and Ors. 2004 SCC (L&S) 95, it was held that Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid's theorems or as persons of the statute. These observations must be read in the context in which they appear.
15. Applying the ratio of the Hon'ble Supreme Court on the binding precedent, it will not be possible to accept the case of the respondents that there was deviation in reference to the requirement of diploma in certain cases and that there was a direction to consider the case of the equivalence and therefore the certificate-holders can also be considered for promotion dehorse the statutory rules.
16. After considering the arguments, we are of the view that the statutory rules both to the entry level as well as for the promotion post are clear with no ambiguity. There is no scope for introducing a lesser qualification than the minimum prescribed. If really the respondents wanted to modify the required qualification they could have done so only by amending the Recruitment Rules. On the other hand, we find that their earlier stand and the Director General's letter are categorical to the effect that the requirement of diploma is essential. It is pertinent to point out that the Drugs and Cosmetics (Second Amendment) Rules, 1999 requires only diploma and degree in medical laboratory technology and the certificate-holders are not to be treated as Technician. For all the above reasons, we are of the view that the applicants have made out a case for a direction as prayed for. Accordingly, we direct the respondents to consider the applicants for promotion to the post of Technical Assistant by taking into account their qualification as prescribed by the Recruitment Rules within a period of two months from the date of receipt of a copy of this order. O.A. is allowed. No costs.