Dr.Munawwar Hussain vs Union Of India on 11 March, 2015

[Cites 2, Cited by 0]

Central Administrative Tribunal - Delhi

Dr.Munawwar Hussain vs Union Of India on 11 March, 2015

      

  

   

 CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH

O.A.NO. 3760 OF 2014
New Delhi, this the     11th    day of March, 2015

CORAM
HONBLE SHRI ASHOK KUMAR, ADMINISTRATIVE MEMBER
AND
HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMMER
..

1.	Dr.Munawwar Hussain,
	aged 53 years,
	s/o Rais Ahmed Kazmi,
	O/o CCRUM 61-65, Institutional Area,
	Jankpuri, Delhi 110058
	Applied for the post of Director General (CCRUM)

2.	Dr.Zubair Ahmed Khan,
	Age 57 years,
	s/o late Abubakar Khan,
	R/o RRC B-501/4 GTB Nagar,
	Allahabad, U.P.

3.	C.C.R.U.M Scientist Welfare Association,
	Through its General Secretary,
	Dr.S.A.Siddiqui,
	Aged 59 years,
	s/o late Mehboob Alam,
	R/o E-48A, Abul Fazal Enclave,
	1,Jamia Nagar, New Delhi 25				Applicants

(By Advocate: Ms.Harivender Oberoi)

Vs.

1.	Union of India, through its Secretary,
	Ministry of Health & Family Welfare,
	Department of AYUSH,
	Government of India,
	Ayush Bhawan, B-Block, G-Complex, INA, New Delhi.

2.	The Central Council for Research in Unani Medicine,
	Through its Director General,
	Jawaharlal Nehru AYUSH Anushandhan Bhawan,
	61-65, Institutional Area, Opp. D Block,
	Jankpuri, New Delhi 110058

3.	President,
	Governing Body, Central Council for Research in Unani Medicine,
	Department of AYUSH,
	Ministry of Health & Family Welfare,
	Govt. of India,
	Nirman Bhawan, New Delhi 1.		..		Respondents

(By Advocates: Shri Ashish Nischal for Shri Rajender Nishchal for R-1 and Shri S.Sunil for R-2)
					.

					ORDER
Shri Raj Vir Sharma, Member (J):

In this Original Application, the applicants have prayed for the following reliefs:

i) Quash and set aside the advertisement Dt.23-29 Aug.2014 inviting applications for the post of DG CCRUM only on deputation basis.

ii) Quash and set aside the RRs of 2012 for the post of DG CCRUM as the same are illegal, arbitrary and violative of DOPT OMs, as the same have been done away with the method of Direct recruitment/promotion for the post and left with only deputation.

iii) Direct the respondents not to consider/accept applications from candidates from private bodies such as Hamdard University, a private unaided university for appointment on deputation basis.

iv) All consequential benefits may be granted to the Applicants.

v) Any other relief, which this Honble Tribunal may deem fit and proper in the circumstances of the case, may also be passed in favour of the Applicants.

vi) Cost of the proceedings be awarded in favour of the Applicants and against the respondents.

2. We have perused the pleadings and have heard Ms.Harvindeer Oberoi, learned counsel appearing for the applicants, and Mr.S.Sunil and Mr.Ashish Nischal, learned counsel appearing for the respondents.

3. Applicant no.3 is the CCRUM Scientists Welfare Association. Applicant nos. 1 and 2 have been working under the Central Council for Research in Unani Medicine (CCRUM) since 1985/1986. Applicant no.1 was promoted to the post of Assistant Director (Unani) in PB 3 with Grade Pay Rs.6, 600/- in July 2014. Applicant no.2 was promoted to the post of Research Officer (PB 3 with Grade Pay Rs.5,400/-) with effect from 12.6.2001. Both of them have been drawing pay in PB 4 with Grade Pay of Rs.8,700/- since 2011, after they were granted in situ promotion under the Department of Health Group A Medical Officer In-Situ Promotion Scheme. They are not holding any post either in PB 3 with Grade Pay Rs.7600/- or in PB 4 with Grade Pay Rs.8,700/-.

4. In this case, the applicants main challenge is to the Recruitment Rules 2012 for the post of Director General, CCRUM (Rs.37,400-67,000/- + GP Rs.10,000/- + NPA as admissible as per the Govt. of India Rules).

5. It is the contention of the applicants that the Recruitment Rules for the post of Director/Director General, CCRUM, as amended/revised in the years 2002, 2005 and 2010, had, inter alia, stipulated the eligibility criterion of 17 years experience, and three years regular service in the scale of pay of Rs.14,300-18,300/- or equivalent (corresponding to PB 4 with Grade Pay Rs.8700/-), or eight years regular service in the scale of Rs.12000-375-16500/- or equivalent (corresponding to PB 3 with Grade Pay Rs.7600/-). But in the Recruitment Rules 2012, the eligibility service/experience in Research and/or Teaching in a Group A level has been enhanced from 17 years to 20 years, and the words in a post have been inserted in A(3)(i) and (ii), vide column 12 of the Schedule to the Recruitment Rules 2012 with a view to making the departmental candidates, like applicant nos. 1 and 2, ineligible for being considered for selection and appointment to the sole post of Director General, CCRUM, although such departmental candidates, who were having three years regular service in PB 4 with GP 8700/- or eight years regular service in PB 3 with GP of Rs.7600/-, were eligible under the Recruitment Rules as revised/amended in 2010. The applicants have also laid emphasis on the words regular service in the scale appearing in the Recruitment Rules of 2002 and 2005. It is the further contention of the applicants that the Recruitment Rules have been amended in the year 2012 by the respondents with a view to selecting and appointing a person from outside the organization, which, according to the applicants, is evident from the impugned advertisement published in Employment News 23-29 August 2014 (Annexure A/1) for filling the post of Director General, CCRUM, by deputation including short-term contract for a tenure of 5 years or till the incumbent attains the age of superannuation.

6. It is also the contention of the applicants that the Recruitment Rules 2012 are violative of the DoP&Ts O.M. dated 31.12.2010 inasmuch as no note has been included in the Recruitment Rules 2012 that the eligibility service shall continue to be the same for persons holding the feeder posts on regular basis on the date of notification of the revised/amended rules, although the requisite period of experience, which was one of the essential qualifications prescribed in the Recruitment Rules of 2002, 2005 and 2010, has been enhanced from 17 to 20 years in the Recruitment Rules 2012.

7. On the other hand, it is the contention of the respondents that the departmental officers who fulfilled the eligibility criteria could always apply for consideration and appointment on short-term contract basis as prescribed in the Recruitment Rules 2012. The applicants were placed in PB 3 with Grade Pay of Rs.7600/- and PB 4 with Grade Pay of Rs.8700/- on the basis of in situ promotion under the Flexible Complementary Scheme (FCS). The placement of applicant nos. 1 and 2 in PB 3 with Grade Pay of Rs.7600/- or in PB 4 with Grade Pay of Rs.8700/- on in situ promotion under the Flexible Complementary Scheme can by no stretch of imagination be construed that they are holding any post in the PB 3 with Grade Pay of Rs.7600/- or in PB 4 with Grade Pay of Rs.8700/-. It is also contended by the respondents that the applicants have no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service. To buttress their submission, the respondents have placed reliance on the decision of the Honble Supreme Court in P.U.Joshi and others, etc. vs. The Accountant General, Ahmedabad and others, etc., (2003) 2 SCC 532.

8. In order to consider the rival contentions of the parties, it would be necessary to refer to and quote the relevant provisions of the Recruitment Rules for the post of Director/ Director General, CCRUM, as amended/revised in 2002,2005, 2010 and 2012, as follows:

Recruitment Rules 2002:

ESSENTIAL QUALIFICATIONS

1. Post Graduate Degree in Unani Medicine of a recognized University or Statutory State Board or Council or Faculty in Indian Medicine including in II. Enrolment in a Central/State Register for the relevant system of Medicine.

III. 17 years standing in the profession including 8 years as Head of the Post Graduate Department of a specialty in Unani Medicine of a University or Medical College or Research Institution or Teaching Institution or Hospital or Head of the Health Services in Unani Medicine.

xx                        xx                  xx
9
xx
xx
10
xx
xx
11
METHOD OF RECRUITMENT

Direct Recruitment failing which by deputation including short term contract. The departmental candidates fulfilling all eligibility conditions will also be considered along with the other candidates. In the event of selection of any departmental candidates the appointment will be treated as on promotion.

IN CASE OF RECRUITMENT BY DEPUTATION/SHORT TERM CONTRACT, GRADES FROM WHICH SELECTION IS TO BE MADE Deputation (including short term contract): Officers under the Central/State Government/Union Territories/ Universities/Recognized Research Institutions/ Public Sector Undertakings/ Autonomous Bodies or Statutory Organizations:

i)Holding analogous posts on regular basis; or

ii) With 3 years regular service in the scale of pay of Rs.14300-400-18300;

iii)with 8 years regular service in posts in the scale of Rs.12000-375-16500 or equivalent and

b) Possessing the qualifications and experience prescribed for Direct Recruitment.

The Departmental Officers in the feeder category who are in the direct line for promotion shall not be eligible for consideration for appointment on deputation. Similarly, deputationists shall not be eligible for consideration for appointment by promotion.

(Period of deputation or contract including period of deputation or contract in another ex-cadre post held immediately preceding this appointment in the same or some other organization/department of the Central Government shall ordinarily not exceed four years. The maximum age limit for appointment by transfer on deputation (including short term contract) shall be not exceeding 56 years as on the closing date of receipt of applications) Recruitment Rules 2005:

Educational and other qualifications required for direct recruitment Essential:

1. Post Graduate Degree in Unani Medicine of a recognized University or Statutory State Board or Council or Faculty in Indian Medicine including in

2. Enrolment in a Central/State Register for the relevant system of Medicine.

3. 17 years standing in the profession including 5 years as Head of the Department of a specialty in Unani Medicine of a University or Medical College or Research Institution or Teaching Institution or Hospital in a capacity equivalent to Professor rank.

xx                        xx                  xx
9
XX
XX
10
XX
XX
11

Method of recruitment whether by direct recruitment or by promotion or by deputation/transfer and percentage of vacancies to be filled by various methods:

Direct Recruitment failing which by deputation including short term contract. The departmental candidates fulfilling all eligibility conditions will also be considered along with the other candidates. In the event of selection of any departmental candidates the appointment will be treated as on promotion.

In case of recruitment by promotion/deputation/transfer, grades from which promotion/deputation/transfer to be made Deputation (including short term contract): Officers under the Central/ State Government/ Union Territories/ Universities/ Recognized Research Institutions/ Public Sector Undertakings/ Autonomous Bodies or Statutory Organizations:

i)Holding analogous posts on regular basis; or

ii) With 3 years regular service in the scale of pay of Rs.14300-400-18300;

iii)with 8 years regular service in posts in the scale of Rs.12000-375-16500 or equivalent and

b)Possessing the qualifications and experience prescribed for Direct Recruitment.

Method of recruitment whether by direct recruitment or by promotion or by transfer on deputation or on contractual basis By on deputation (including short term contract) failing which on contractual basis.

XX XX 10 XX XX 10 In case of recruitment by deputation (including short term contract) grades from which recruitment to be made Officer under the Central/State Government/U.Ts./Universities/Recognized Research Institutions/ Public Sector Undertakings/ Autonomous Bodies or Statutory Organizations:

Holding analogous posts on regular basis;

Or 3 years regular service in Pay Band-4 with Grade Pay Rs.8700 or equivalent; Or 8 years regular service in Pay Band-3 with Grade Pay Rs.7600.

Essential:

(i) Essential

(i) Educational * Post-graduate degree in Unani Medicine of a recognized University or Statutory State Board or Council or Faculty in Unani medicine included in the 2nd Schedule Part B of IMCC Act 1970 * Enrolment in a Central/State Register for Unani Medicine.

(ii) Experience * 17 years standing in the profession in the profession including 8 years as Head of the Post Graduate Department of a specialty in Unani Medicine or a University or Medical College or Research Institution or Teaching Institution or Hospital or Head of the Health Services in Unani Medicine.

(iii) Desirable:

*Ph.D in Unani Medicine of a recognized University or Statutory Board or Council of Faculty in Indian Medicine or equivalent.

*Extensive practical and administrative experience, and *Working knowledge of English, Hindi and Urdu/Persian/Arabic.

Recruitment Rules 2012:

Method of Recruitment By deputation/short term contract for a tenure of 5 years or till the incumbent attains the age of superannuation, whichever is earlier.

In case of recruitment by promotion/ deputation/ absorption, grades from which promotion/deputation is to be made. Officers of the Central/State Government/ autonomous bodies/ Research Institutions /Public Sector undertakings/ Semi Government statutory or Autonomous Organizations funded by the Government with: A. Essential qualifications:

1. PG Degree in Unani Medicine included in the 2nd Schedule of Indian Medicine Central Council Act, 1970.

2. Enrolment in the Central/State Register of Indian Medicine.

3. 20 years experience in Research and/or Teaching in a Group A level post having:

(i) a minimum three years regular service in a post in PB 4 with GP of 8700 or equivalent/ corresponding pay scale or applicable to the post.

Or

(ii) eight years regular service in a post in PB 3 with GP of Rs.7600/- or equivalent/corresponding pay scales as applicable to the post.

4. Quality research work published in peer reviewed research journal.

xx xx

9. We have carefully considered the rival contentions of the parties. On a perusal of the Recruitment Rules for the post of Director/Director General, CCRUM, as amended/revised in 2002,2005 and 2010, we have found that the words grades and in posts are mentioned therein at some places with reference to the service on regular basis in pay scale and/or Pay Band. Though the words in posts or in a post do not occur therein at some places, yet, considering the context in which the words grades and in posts are mentioned therein at some places, we are of view that there is some inadvertent omission from mentioning the words in posts or in a post. The eligibility of officers for promotion to a higher post is certainly adjudged with reference to the feeder grade or post in a particular pay scale or Pay Band, as the case may be. Therefore, the insertion of the words in a post in the Recruitment Rules 2012 cannot be said to have been made arbitrarily or unreasonably and with a view to eliminating the departmental candidates, like the applicants, for being considered for recruitment to the post of Director General, CCRUM, on short term contract basis.

10. The other contention of the applicants is that when the eligibility service/experience has been enhanced from 17 to 20 years under the Recruitment Rules of 2012, a note ought to have been included in the Recruitment Rules of 2012 to the effect that the eligibility service shall continue to be the same for persons holding the feeder posts on regular basis on the date of notification of the revised rules in terms of paragraph 3.1.3 of the DoP&Ts O.M. dated 31.12.2010. According to the applicants, the Recruitment Rules 2012, in the absence of the aforesaid note, is violative of the DoP&Ts O.M. dated 31.12.2010 and therefore, liable to be quashed. We do not find any substance in the contention of the applicants. The experience clause, as mentioned in the Recruitment Rules of 2002, 2005, 2010 and 2012, has to be read coupled with the other eligibility criteria, such as, essential qualifications, feeder grade post, pay scale/pay band, regular service in the feeder grade/post, etc.. Admittedly, there is no post carrying PB 4 with Grade Pay of Rs.8700/- available in the CCRUM. As applicant nos. 1 and 2 are yet to be promoted to a post in PB 3 with Grade Pay of Rs.7600/- and they have been placed in PB 3 with GP of Rs.7600/- and PB 4 with GP of Rs.8700/- after they were granted in situ promotion/financial upgradation under the Flexible Complementary Scheme/Department of Health Group A Medical Officer In-Situ Promotion Scheme, it cannot be said that applicant nos. 1 and 2 are holding any post either in PB 3 with Grade Pay of Rs.7600/-, or in PB 4 with Grade Pay of Rs.8700/- and therefore, the question of continuing the same eligibility service/experience for them and other similarly placed persons on the date of notification of the Recruitment Rules 2012 does not arise. The applicants have not demonstrated before this Tribunal as to how the enhancement of the eligibility service/experience from 17 to 20 years, as stipulated in the Recruitment Rules of 2012, is arbitrary and unreasonable. The applicants cannot claim as a matter of right that the Recruitment Rules for the post of Director/Director General, CCRUM, should be for ever the same as the one when they entered service for all purposes. They have also no right to challenge the authority of the respondents to amend, alter and bring into force new rules relating to even an existing service.

11. As regards framing of policy decisions by Government, the Honble Apex Court in Col. A.S.Sangwan v. Union of India and others, 1980 (supp.) SCC 559, held that policy decisions can be changed by Government at any time and a new policy can be made. Provided it is not arbitrary, Court should not interfere with such policy decision.

12. In P.U.Joshis case, the Honble Supreme Court held thus:

Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenue of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and after or amend and vary by addition/subtraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service.

13. In the light of the above discussions, we hold that the applicants have not been able to make out a case for the reliefs claimed by them. The O.A. being devoid of merit is liable to be dismissed. Accordingly, the O.A. is dismissed. As a consequence, MA No.4095/14 filed by the applicants for an interim direction to the respondents to consider the applicants for selection and appointment to the post of DG, CCRUM, is dismissed. No costs.

(RAJ VIR SHARMA)				(ASHOK KUMAR)
JUDICIAL MEMBER 			ADMINISTRATIVE MEMBER


AN

Legal Document View

Unlock Advanced Research with PRISMAI

Central Administrative Tribunal - Delhi

Dr.Munawwar Hussain vs Union Of India on 11 March, 2015