Central Administrative Tribunal - Delhi
Sudhir Kumar vs M/O Environment And Forests on 22 July, 2019
Reserved
(On 25.06.2019)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
CIRCUIT SITTING AT NAINITAL
Dated: This the 22nd day of July 2019
Original Application No. 331/00617 of 2018
Hon'ble Ms. Ajanta Dayalan, Member - A
Hon'ble Mr. Rakesh Sagar Jain, Member - J
Sudhir Kumar, S/o Sh. Narain Singh, Scientist C, IT Division, Indian
Council of Forestry Research & Education, P.O.: New Forest, Dehradun.
. . .Applicant
By Adv: In person
VERSUS
1. Director General, Indian Council of Forestry Research &
Education, P.O.: New Forest, Dehradun - 248 006.
2. Union of India through the Secretary, Ministry of Environment,
Forest & Climate Change, Indira Paryavaran Bhawan, Jor Bagh
Road, New Delhi - 110 003.
. . . Respondents
By Adv: Shri Vikas Pandey
ORDER
By Hon'ble Ms. Ajanta Dayalan, Member - A The present OA has been filed by the applicant - Sudhir Kumar seeking directions to the respondents to consider and grant the benefit of Flexible Complementing Scheme (FCS) to him "from respective due dates in each category of his eligibility of in-situ promotion with consequential benefits including arrears in each category of promotion". He has also sought cost in his favour.
2. The basic facts of the case are that the applicant possesses qualification of Master's degree in Computer Application. On this basis, he was appointed as Scientist 'B' on 23.04.2003 in the Computer Application in Indian Council of Forestry Research and Education (ICFRE). On 01.07.2008 he was promoted to the post of Scientist 'C'. Vide impugned order dated 31.01.2012, the Council denied promotions to those Group A Scientists (including the applicant) possessing qualification 2 of MCA, M. Sc (IT), M. Sc (Statistics), M. Sc (Mathematics), MA (Operational Research) and M. Sc (Total Quality Management) by citing Frequently Asked Questions (FAQ) of the DOPT dated 23.09.2011. According to the applicant, he is due for in-situ up-gradation to the post of Scientist 'D' from 01.07.2012 and to Scientist 'E' from 01.07.2016. This has been denied to him in terms of FAQ of DOPT dated 23.09.2011.
3. The case of the applicant is that when he was initially appointed as Scientist 'B' in 2003 and was later on promoted as Scientist 'C' in 2008, he was appointed in Computer Application. The qualification for his post in the advertisement at the time of his initial appointment read as under
"Master Degree in Computer Application / M. Sc in Physics / Maths / Statistics with P.G. Diploma in Computer from Institute / University recognized by Government of India / B.E. / E. Tech (Computer Science), with first class or minimum 60% in aggregate".
In this application, he was considered as holding essential qualification of Master degree in Computer Application. He was also promoted as Scientist 'C' under ICFRE Group 'A' (Scientific Posts) Recruitment Rules 2001. As he was considered holding Master degree in Computer Application in 2003 and again in 2008, these essential qualifications cannot later be changed in 2011 denying him eligibility of promotion. The applicant argued that Frequently Asked Questions (FAQ) cannot be a basis for denying him eligibility for promotion.
4. The applicant has further raised the issue whether educational qualifications can be varied by changing service rules and whether this variation can be effected to the detriment of employees who were employed based on earlier qualifications deemed sufficient at the time of initial appointment. He has quoted the order of this Tribunal dated 05.05.2016 passed in OA No. 331/00039 of 2015 in the case of Dr. Harish Kumar vs. UOI & Ors in support of this contention.
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5. On the other hand, the respondents have contested the claim of the applicant and have filed detailed counter affidavit in support of their contention. They have stated that the Council is an autonomous body under Ministry of Environment, Forests & Climate Change. The Council is 100% funded by Government of India and is bound to follow the instructions laid down by the Government as issued from time to time. The instructions for in-situ promotion of Scientists under Modified Flexible Complementing Scheme are contained in DOPT OM dated 10.09.2010. These were adopted by Council vide notification dated 24.08.2011 (Annexure No. I to the CA). This notification defines scientific post as under:-
"Scientific Post Is the one, the incumbent of which is a 'Scientist or Engineer' defined as below in a scientific institution / organization declared as 'Scientific Department' as defined above and is engaged in creating new scientific knowledge or innovative engineering, technological or medical techniques or which is involved predominantly in professional research work and development."
Further, this notification goes on to define 'Scientists and Engineers' as under "Scientists and Engineers Persons a. Who possess academic qualification of at least Master's degree in Natural / Agricultural Sciences or Bachelors degree in Engineering / Technology / Medicine, and b. Hold scientific posts as defined above."
6. The respondents have stated that the applicant, who holds qualification of Master degree in Computer Application, was appointed as Scientist 'B' in the Council on 23.04.2003. In the advertisement of 2001 (Annexure 2), there was no mention of any service rules or provisions to be applied to the successful candidates. There is also no mention of any service rules or provisions during his service in the terms and conditions conveyed to him in the offer of appointment dated 03.04.2003 (Annexure II to the CA). On the other hand, para 2 (v) of this offer of appointment clearly states as follows:-
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"All other terms and conditions of the service will be governed by the relevant rules and orders of this Council in force from time to time".
Therefore, as per terms and conditions conveyed to the applicant through offer of appointment, he was to be governed by relevant rules and orders in force from time to time.
7. The respondents have further averred that promotion of scientists in the Council is regulated by the criteria laid down by DOPT under Modified Flexible Complementing Scheme. The DOPT vide OM dated 10.09.2010 issued detailed instructions for implementation of Modified FCS under which only such scientists would be eligible for promotion under the Scheme who not only possess the requisite qualification but are also engaged in creating new scientific knowledge or engaged in innovative activities as distinct from the mere application of technical knowledge.
8. The respondent department have further stated that as per clarification received from Ministry of Environment, Forests & Climate Change, the officers having qualification such as MCA, M.Sc (IT), M.Sc (Statistics), M.Sc (Computer Science), M. Tech. (Information Technology), M.Sc (Maths) are not eligible for in-situ promotion under Modified Flexible Complementing Scheme. Considering the qualification of the applicant and nature of his post, the applicant was not found fulfilling the criteria for eligibility laid down for consideration of in-situ promotion under Modified FCS.
9. It is also averred by the respondents that there is no change in the service conditions of the applicant as claimed by him. The in-situ promotion of the applicant and other employees under Modified Flexible Complementing Scheme is governed by the instructions of the DOPT and he is not eligible there under.
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10. The respondents have further stated that the applicant has mis- quoted the order dated 05.05.2016 as in that order, the Tribunal only directed the respondents to issue a fresh order after considering the representation given by the applicant. This order further stated that in case the applicant is still aggrieved by the order passed, 'he will be entitled to file appeal before Chairman, ICFRE who shall decide the same after giving the applicant an opportunity of personal hearing' (Annexure A-3). Dr. Harish Kumar, the applicant in that case, filed Contempt Petition No. 331/00125 of 2017 and in compliance of the interim order dated 23.05.2018 passed by the Circuit Bench of this Tribunal at Nainital, the DG, ICFRE issued fresh order dated 23.08.2018, again rejecting his claim. Thereafter, the Circuit Bench of this Tribunal at Nainital dismissed the Contempt Petition and notices were discharged. Thus, Dr. Harish Kumar has not got benefit of Modified Flexible Complementing Scheme.
11. The respondents have further stated that the applicant will continue to get at least 3 financial up-gradations as prescribed by the DOPT under provisions of Modified Assured Career Progression Scheme. However, he cannot be considered for in-situ promotion under the provisions of Modified FCS. It is further stated that FAQs issued by the DOPT merely clarify the rule position already issued by the DOPT vide OM dated 10.09.2010.
12. In view of all above, the respondents have concluded that the applicant is not entitled for consideration for in-situ promotions under FCS. The OA is, therefore, against rules and regulations and is liable to be dismissed.
13. We have heard Sudhir Kumar, the applicant in person and Shri Vikas Pandey, learned counsel for the respondents. We have also gone 6 through the pleadings of the case as well as written arguments filed by the applicant. We have also given out thoughtful consideration in the matter.
14. We find that the facts of the case are undisputed. The applicant was appointed to the post of Scientist 'B' in Computer Application vide Council's appointment letter dated 03.04.2003. He was promoted as Scientist 'C' in 2008. In 2010, DOPT came up with Modified FCS for Scientists based on recommendations of 6th Central Pay Commission. These instructions contain the definition of Scientific Posts as quoted in para 5 above. As per these, to justify a post as scientific post and for eligibility to FCS, the post has to be in a scientific department and the incumbent had to be engaged in creating new scientific knowledge or innovative engineering, technological or medical techniques or which is involved predominantly in professional research work and development.
15. Further, the same order amplifies the term 'Scientists and Engineers' as quoted in para 5 above. Thus, we see that any person holding Master's degree in Natural / Agricultural Sciences or Bachelor's degree in Engineering / Technology / Medicine and holding Scientific Post only was eligible for this Scheme. We find that as per Collin's Dictionary, the term 'natural sciences' means branches of science which deal with the study of the physical world i.e. physics, chemistry, zoology and botany; and excludes abstract or theoretical sciences such as mathematic as well as applied sciences. Other dictionaries also define the term with the same import, though in different phraseology. As such Computer Application cannot be covered under 'natural sciences'. The applicant was not possessing Master's degree in natural / agricultural sciences or Bachelors degree in engineering, technology or medicine and was, therefore, not covered under the Scheme.
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16. The terms and conditions of the appointment (Annexure No. II to the CA) given to the applicant at the time of his initial appointment in 2003 also clearly state in para 2 (v) as under:-
"2 (v). All other terms and conditions of the service will be governed by the relevant rules and orders of this Council in force from time to time."
17. We are, therefore, of the view that there is no infringement of the rights or terms and conditions as offered to the applicant at the time of his initial appointment by denial of benefit of Modified Flexible Complementing Scheme to him. In fact, Modified Flexible Complementing Scheme is a new scheme which has been framed by DOPT in 2010 and has been adopted by the Council in 2011.
18. FAQ are only clarifications on the Scheme with a view to clarify some of the doubts being raised by various institutions / field officers regarding the Scheme. These do not change the Scheme and are not inconsistent or violative of the Scheme. Hence, we do not find any illegality or impropriety in issue of FAQ.
19. We also find that the applicant continues to be entitled to MACP. His entitlement of 3 up-gradations during his whole service career as per that Scheme has not undergone any change. He, therefore, cannot plead grievance only because of denial of benefit under FCS when he is not entitled for the same. FCS is a different scheme than MACP and has, therefore, different bench-mark than MACP. The applicant is clearly not meeting this criterion in terms of conditions laid down in FCS Scheme and, hence, he cannot rightfully claim benefits there under.
20. The respondents have already clarified the position regarding order dated 05.05.2016 in the case of Dr. Harish Kumar being relied upon by the applicant. Firstly, there is no order regarding entitlement of the applicant in that case at all. The order is only to the extent of 8 directing the respondents to decide his representation and later appeal if preferred by him. Even thereafter, the respondents have not granted Dr. Harish Kumar the benefit of FCS. Contempt Petition filed by Dr. Harish Kumar was dismissed by this Tribunal. As such, this case does not substantiate the claim of the applicant. If at all, it goes against him.
21. The applicant has quoted some other judgments and rulings. However, none of them is applicable in the present case in view of the specific and clear facts of the case as narrated above.
22. To recapitulate and to sum up, the case basically raises two questions of law before us:-
1. Whether service rules applicable to the employees can be changed during their service period; and
2. Whether the applicant is entitled for Modified Flexible Complementing Scheme.
23. Regarding the first question, the answer, according to us is in clear affirmative. In fact, rules are frequently changed and conditions of service also continuously change with time and to meet various situations and changed needs. There can be reasonable riders to amendment of rules. Firstly, retrospective effect to the amendment of rules needs to be restricted. Secondly, rules may not be amended to the detriment of employees already in service. In the instant case, none of these restrictions hold good. The rules have not been amended retrospectively and they are not to be detriment to the employees, including to the applicant himself. In fact, the new Scheme - Flexible Complementing Scheme - is an improved scheme applicable for certain posts identified as scientific post and for scientists and engineers manning such posts. These posts involve creating new scientific knowledge or innovative engineering etc. or research work and knowledge. This 9 Scheme is better than Modified Assured Career Progression Scheme available to some other employees. For persons not entitled to Flexible Complementing Scheme, the Modified Assured Career Progression Scheme continues to hold good. Hence, no employees is adversely affected by introduction of this new Flexible Complementing Scheme. Moreover, the alleged change in rules being challenged by the applicant is not for the post for which he was appointed. Rather, he is claiming that even rules for promotional post should not be changed. The terms and conditions at the time of initial appointment never made any commitment regarding his future promotion and only stated that he shall be governed by the rules in force from time to time. Hence, we find no illegality in the introduction of Flexible Complementing Scheme by the Government qua the applicant.
24. Regarding the second question i.e. whether the applicant is entitled for Modified Flexible Complementing Scheme, our answer is in negative. Flexible Complementing Scheme is only for scientists and engineers manning scientific posts as defined in the Scheme itself. Clearly the applicant does not fall in that category as has been discussed in the proceeding paragraphs. Definition of 'Scientists and Engineers' is contained in the Scheme. So is the definition of 'Scientific Post' contained in the Scheme. For the reasons given in the preceding paragraphs, we find that the applicant is not entitled for the benefit under Flexible Complementing Scheme, as he does not possess the requisite qualification as given in the Scheme itself.
25. We also note that the applicant continues to be entitled for the benefits under Modified Assured Career Progression Scheme to which he has been entitled so far. Accordingly, he is, in no manner, adversely placed by introduction of the new Scheme. What he is trying to get is the benefit of the better and new Scheme framed by the DOPT even though 10 he is not entitled for the same as per terms of that Scheme. He has, therefore, no genuine grievance and is not entitled for any relief.
26. In view of all above, we are of the view that the applicant is not entitled to the relief sought by him. The OA is devoid of merit and is accordingly dismissed. There is no order as to costs.
(Rakesh Sagar Jain) (Ajanta Dayalan)
Member - J Member - A
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