Karnataka High Court
The Indian Council Of Medical Research vs Dr A Nandakumar S/O Shri.K.Ambakumar on 8 July, 2013
Bench: D.V.Shylendra Kumar, B.S.Indrakala
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 8TH DAY OF JULY, 2013
PRESENT
THE HON'BLE MR. JUSTICE D. V. SHYLENDRA KUMAR
AND
THE HON'BLE MRS. JUSTICE B.S. INDRAKALA
WRIT PETITION No.9659/2009 (S-CAT)
BETWEEN:
1. The Indian Council of Medical Research,
Through Its Director General,
V. Ramalingaswami Bhawan,
Ansari Nagar, New Delhi-110 029.
2. Senior Deputy Director General (Admn.)
V. Ramalingaswami Bhawan,
Ansari Nagar, New Delhi-110 029. ...PETITIONERS
(By Sri. Shankar S. Bhat, Adv.)
AND:
Dr. A. Nandakumar,
S/o. Shri. K. Ambakumar,
Deputy Director General (Senior Grade)
Indian Council of Medical Research,
National Cancer Registry Programme,
No.557, 7th Main, New BEL Road,
Dollars Colony, Bangalore-560 003.
R/o. 37/1, 15th Cross, Malleswaram,
Bangalore-560 003. ...RESPONDENT
(By Vijaya Simha Reddy. D.V., Advocate
for Deshraj & P. Changalaraya Reddy for
Respondent No.1)
2
This Writ Petition is filed under Articles 226 and 227
of the Constitution of India praying to issue a writ of
certiorari directing to quash the order dated 20.06.2008,
passed by the Central Administrative Tribunal, Bangalore
Bench, Bangalore in OA No.261/2007 vide Annexure-A to
the writ petition.
This Writ Petition coming on for Hearing this day,
Shylendra Kumar. J., made the following:
ORDER
This writ petition is by the Indian Council of Medical Research (for short 'ICMR') through its Director General, New Delhi and Senior Deputy Director General (Administration), New Delhi and is directed against the order dated 20.6.2008 passed by the Central Administrative Tribunal, Bangalore Bench, Bangalore in Original Application No. 261/2007.
2. The writ petitioners have raised various contentions to urge that the impugned order is bad in law; that the order passed at the instance of the respondent, who was working as a Deputy Director General (Senior Grade), Indian Council of Medical Research, National Cancer Registry Programme (for short 'NCRP'), New BEL Road, Bangalore, to direct the petitioners to consider the 3 case of the applicant before the Tribunal for grant of merit promotion and advance increments as per Rule 11 of the Indian Council of Medical Research Rules and Regulations of the ICMR Research Cadre (for short 'the ICMR Rules') is not tenable in law; that it is in contravention of the very rules; that the post of Senior Deputy Director General (Grade-I) of Headquarters to which post he was aspiring, was not a post available by way of promotion but only for the direct recruitments and various other grounds were also raised.
3. The brief facts leading to the above writ petition is that the respondent was appointed as a Project Officer in the National Cancer Registry Project, Technical Wing and for extra mural project on pay of Rs.5,200/- per month in the pay scale of Rs.5,100/- to Rs.6,700/- in the year 1991, which was not a regular appointment under ICMR. Over a period of time, he had been transferred against the re- designated post of Deputy Director General (SG) in the same pay scale of Rs.5,100-6,300/- in the ICMR Headquarters with effect from 11.1.2007; that he was drawing the same pay scale and it was also indicated that 4 this pay scale had been revised to Rs.16,400-22,400/- as per the recommendations of the V Pay Commission.
4. The respondent had also aspired for higher post on a couple of occasions but he had not been selected based on his merit. In this background, the respondent had approached the Central Administrative Tribunal claiming merit promotion to the post of Director by filing O.A.No. 389/2006. That application had come to be allowed directing the writ petitioners to consider the representation of the respondent in accordance with law within 3 months etc. It is claimed that pursuant to such direction, the writ petitioners had passed an order dated 11.6.2007 elaborately giving reasons as to why the respondent is not entitled for promotion or higher pay scale to which he had sought for in the representation. As per this order, it was also indicated that Flexible Complementary Scheme (FCS) was not a scheme which was extended to scientists and many of them are even senior to the respondent and therefore, the respondent cannot be given benefits as claimed from 11.9.1996 onwards and consequential benefits etc. The respondent 5 had again approached the Tribunal claiming the benefit in terms of his representation dated 11th January 2007 but by the impugned order dated 11.6.2007, he had been denied that it is not correct etc. The Tribunal issued notice to the writ petitioners to consider the rival contentions and in terms of its order dated 20th June 2008 has allowed the application and had issued the following directions:
"We have carefully examined the rule position and the submissions made from either side. To consider the case of the applicant for merit promotion the respondents have not applied their mind under Rule 11 of the Rules. Accordingly, we direct the respondents to consider the case of the applicant for merit promotion under Rule 11 of the Rules. Since we are not granting the entire relief as prayed for in para 8(b) of the O.A. on the submissions made by the learned Counsel for the applicant, we mould the relief and issue direction to the respondents to grant the merit promotion in accordance with Rule 11 of the Rules".6
5. It is aggrieved by this order and direction, the present writ petition by the Indian Council of Medical Research.
6. Sri Shankar S. Bhat, learned Counsel for the petitioners has reiterated the grounds urged in the writ petition and has drawn our attention to the order dated 11.6.2007 which according to the learned Counsel, gives elaborate reasons as to why the respondent is not entitled for relief. It is also submitted that the Tribunal could not have issued a direction to regularize the case of the respondent and to grant him promotion in accordance with Rule 11 of the ICMR Rules inspite of the clear and cogent reasons that had been given in the impugned order dated 11.6.2007 as to how the respondent was not entitled for it.
7. Notice had been issued to the respondent and the respondent is represented by Counsel, Sri D.V. Vijaya Simha Reddy. Learned Counsel appearing for the respondent on the other hand has drawn our attention to Rule 11 of the ICMR Rules and Regulations 1965:
Rule 11 of the ICMR Rules reads as under:7
"11. Merit Promotion and Advance Increments.
There shall be a system in merit promotion from one grade to the next higher grade and advance increment within the same grade in the manner specified below:-
1. The number of posts sanctioned shall relate to the total number in the group of grades as a whole, and not to each individual grade. Promotion from one grade to the next higher grade shall be done periodically on assessment of performance by a procedure to be prescribed by the Governing Body. The promotion of deserving scientists to the next higher scale will be irrespective of the occurrence of vacancies in the higher scale.
2. A scientist will be eligible for screening for promotion or advance increments, after the expiry of a period of five years service in the particular grade.
3. The Promotion of deserving scientists to the next higher scale will be irrespective of the occurrence of vacancies in the higher scale 8 and that in all cases a person carries the post with him and when he vacates, the post that falls vacant is the one at the entry level i.e. Grade-V (Research Officer).
a. A person will carry a post with him and when he vacates, the post that will fall vacant will be the one at the entry level grade. However, if there is a need to fill the vacancy at the level at which it has become available or at any other level due to any special reason, specific approval of the competent authority (i.e. Director General/Executive Committee/Governing Body) should be taken to create the position at the required level. When the competent authority gives its approval, the entry level position should stand abolished.
b. Whenever a post has been specially created at a particular level and if it falls vacant it should normally be filled at that level by the usual procedure and not by direct recruitment.
c. Lateral entry by direct recruitment through open advertisement to the grade is permissible to the extent it is required, for 9 specific reasons, to fill a particular post by direct recruitment.
d. According to the "Five Yearly Assessment Scheme" on promotion to the higher grade, the person will carry the post with him and perform the same duties, and/or higher duties, as may be assigned to him by the Director-General/Chief of the Division of Hqrs/ the Director (as the case may be). Note:
Deputy Director/Special Grade Director General on promotion to Grade I under the Five Yearly Assessment Scheme will be designed as "Director Grade Scientist".
(Vide Minutes of the 60th Governing Body Meeting held on 19.05.1986) There will be a scale of pay of Rs.5100- 6300 (Revised) for promotions in future from the scale of pay of Rs.4500-5700 as per the Govt. of India, Minister of Health and FW, Letter No.V. 25011/173/86-R dated the 28th August 1987.
4. The selection will be made by a Committee specially constituted for the purpose, consisting of 5 Scientists to be chosen by 10 the Director General, out of which at least two shall not be employees of the ICMR.
The Committee will meet as and when found necessary.
5. Assessment will be done once in a calendar year. Only eligible scientist who have completed a residency period of 5 years, during the year upto 31st December, will be considered for promotion or advance increments. As far as possible this assessment process should be completed by 30th June of the year.
6. Promotion or grant of advance increments to the scientists recommended by the Selection Committee shall be given with effect form the date on which they complete the residency period of 5 years in their respective grades. However, this benefit will be available only to those who have become eligible for consideration for promotions or advance increments on or before 31st December, 1990 and not to those who have already been promoted on or before 1st July, 1990 under the existing scheme."
11
8. Specific attention is drawn to Sub-Rule (3) of Rule 11 of the ICMR Rules. It is submitted that scientist attains eligibility for screening for promotion or advance increments after having completed 5 years of service in particular grade as per Rule (2) of Rule 11 of the ICMR Rules and that the respondent has been serving in the post since 12.6.1991; that he has neither been given any increment nor promotion so far and his case should have been considered after the expiry of 5 years and the Tribunal having directed to consider his case in accordance with Rule 11 of the ICMR Rules, no exception can be taken by contending that Flexible Complementary Scheme is not applicable to the post of the respondent etc.
9. Whether the respondent qualifies under the scheme or otherwise is a matter which has to be examined and it is also linked to Rule 11 of the ICMR Rules in case he is eligible etc under the Scheme, but even otherwise whether there is a Scheme or not, the respondent has attained the eligibility after completion of 5 years in the Grade and in terms of Rule 11 of the ICMR Rules either promotion or increment being irrespective of occurrence of 12 vacancies in the higher scale, vacancy position is not a criteria but only the other consideration as indicated in Sub-rules (2) and (3).
10. In so far as the grievance of the writ petitioner that the Tribunal should not have directed it to grant merit promotion itself and to that extent it preempts consideration by the writ petitioners, Sri Vijaya Simha Reddy, learned Counsel for the respondent submits that the respondent will be content if his case is considered in terms of Rule 11 of the ICMR Rules that he is the only person, who was appointed by way of direct recruitment to the post that he is holding; that he has been stagnated in the very post for all these years; that he had not been given any promotion or increments so far; that all others are by way of promotion holding equivalent grade and promoted from the lower cadre; that his case is a unique case and therefore he cannot be denied a benefit which he is otherwise entitled by Rule 11 of the ICMR Rules by making comparisions with other employees etc. 13
11. We make it clear that the Tribunal having directed the authorities to consider the case of the respondent - the applicant before it in terms of Rule 11 of the ICMR Rules and there being no dispute that Rule 11 of the ICMR Rules is still holding the field and is applicable to the employees of the petitioner - Council and though the Tribunal said to grant promotion it is nevertheless qualified by the words in accordance with Rule 11 of the ICMR Rules which only means that the respondent can get only such benefits as are available to him and permitted under Rule 11 of the ICMR Rules and nothing more.
12. With these clarifications, we find there is no need to interfere with the orders passed by the Tribunal and dispose of the petition accordingly.
Sd/-
Judge Sd/-
Judge Nsu/-