Central Administrative Tribunal - Bangalore
Dr Rajani G Tumane vs Health And Family Welfare on 5 February, 2026
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O.A.No.170/48/2025/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00048/2025
DATED THIS THE 5th DAY OF FEBRUARY, 2026
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE DR. SANJIV KUMAR, MEMBER (A)
Dr.Rajani G. Tumane,
D/o Shri Ganpatrao Tumane,
Aged about 44 years, Technical Officer 'A',
Regional Occupational Health Centre (Southern),
ICMR Bhavan, Poojanahalli,
Bangalore-562 110 ...Applicant
(By Advocate Shri.B.S.Venkatesh Kumar)
Vs.
1. Union of India represented by Secretary to Government,
Ministry of Health and Family Welfare,
Nirman Bhavan, New Delhi-110 011.
2. The Director General, Indian Council of Medical Research
V. Ramalingaswami Bhawan
Ansari Nagar, New Delhi-110 029.
3. The Director,
ICMR-National Institute of Occupational Health,
Meghani Nagar, Ahmedabad-380 016 ...Respondents
(By Shri.S.Prakash Shetty for Respondent Nos.1 to 3)
SHAINEY VIJU
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O.A.No.170/48/2025/CAT/BANGALORE
O R D E R (ORAL)
PER: DR. SANJIV KUMAR, MEMBER (A)
This Original Application is filed under Section 19 of the Administrative Tribunals Act 1985, claiming the following reliefs:
"(a) Call for records of the case from the respondents and on perusal;
(b) Quash and set aside the impugned Letter bearing No.68/4/MBAPS/NIOH/2024-NCD-
II dated 9.8.2024 (Annexure A15) passed by second respondent,
(c) Issue a consequential direction to the respondents No.2 and 3 to immediately declare the result of the interview held on 22.11.2021 for promotion under the MBAPS/IRAR and if the applicant is found qualified then promote her from the said date with all consequential benefits; and
(d) Grant such other relief/s as this Hon'ble Tribunal deems fit to grant to the applicant in the circumstances of the case including an order as to costs."
2. The reliefs are claimed based on the following grounds:
"5.1. The third respondent issued Office Memorandum dated 18.11.2021 (Annexure A8) regarding implementation of merit based assessment promotion scheme and proposed holding of the interview on 22.11.2021 for being considering for promotion with effect from 1.4.2021. However, even after the lapse SHAINEY VIJU SHAINECAT BANGALORE Y VIJU 2026.02.24 14:08:27+05'30' 3 O.A.No.170/48/2025/CAT/BANGALORE of more than three years the respondents have not published the results of the said interview thereby the applicant has been subject to great prejudice inasmuch by non-
declaration of her result her promotion has been delayed. Therefore, the impugned action is arbitrary, unjust and illegal. 5.2. The applicant and others were transferred from NIMH to NIOH pursuant to the closure of the NIMH and they were absorbed in the appropriate post/pay scale. Even in such absorption the applicant has not been given her appropriate seniority. However, this point is made only to show that the contention of the respondents that the applicant and others have been absorbed in NIOH on supernumerary posts/pay scales and thereby not considering them for promotion on MABPS scheme and considering such officers under MACP scheme is illegal inasmuch wherever MABPS/IRAR scheme is applicable and MACP is not at all applicable.
5.3. In the impugned letter the second respondent has stated employees of NIMH were taken on contract basis and thereafter regularized and have gone on to state that as per clarification of DOPT service rendered only on regular basis will be considered for the purpose of MACP etc. This averment is totally irrelevant in the case of the applicant and other officers of NIMH because as can be seen from Memorandum dated 15.12.2010 that the applicant was absorbed on regular basis with effect from 19.12.2005 and was in fact granted promotion with effect from 1.1.2011. Therefore, the service of the applicant is on regular basis from 19.12.2005 itself and in that view of the SHAINEY VIJU SHAINECAT BANGALORE Y VIJU 2026.02.24 14:08:27+05'30' 4 O.A.No.170/48/2025/CAT/BANGALORE matter the several averments in the impugned letter is absolutely false, incorrect and liable to be rejected.
5.4. The erstwhile NIMH had in fact considered the case of the applicant for promotion to the next grade on the basis of NIMH Recruitment and merit scheme in the meeting held on 4.7.2016 and was promoted to the grade of Junior Scientific Officer from 1.1.2016 as can be seen from the office order dated 5.7.2016 (Annexure A19). If that be so now the respondents cannot contend that the case of the applicant will not be considered for MABPS/IRAR but will be entitled for MACP scheme. Therefore, the impugned letter dated 9.8.2024 is unsustainable. 5.5. The officers and staff of NIMH were enblock transferred to NIOH upon the closure of NIMH and it is not as if that the applicant or anyone else sought for transfer from NIMH to NIOH. If that be so the service conditions that were applicable to the employees of NIMH will have to be extended to them even after transfer/absorption in NIOH. Their service conditions cannot be altered to their disadvantage.
5.6. While the officials who were working in NIMH in the grade and rank held by the applicant and similar employees are eligible for consideration under MBAPS/IRAR Scheme and Scientists of NIMH are entitled to be considered for promotion under Flexible Complementing Scheme (FCS for short). The scientists of NIMH were being considered for promotion under the FCS. Several Scientists in various grades were also absorbed in NIOH along with the other employees of NIMH. Cases of such Scientists SHAINEY VIJU SHAINECAT BANGALORE Y VIJU 2026.02.24 14:08:27+05'30' 5 O.A.No.170/48/2025/CAT/BANGALORE have been considered under FCS and they have been promoted to the next higher grades as per office order dated 31.8.2023 and Office Memorandum 1/4.9.2023. Copies of both these orders are to A22 produced herewith and marked as ANNEXURES A20.
From this it is clear that while the respondents have implemented FCS scheme for one set of employees of NIOH the same respondents deny the promotion cases of employees working in the technical cadre. This is clear case of discrimination. On this ground also the applicant is entitled for relief at the hands of this Hon'ble Tribunal. 5.7. The applicant herewith produces a copy of the order of Hon'ble High Court of Gujarat in the case of YASHVANAT BALAJI MESHRAM V. UNION OF INDIA R/SPECIAL CIVIL APPLICATION NO.20133/2023 and marks the same as ANNEXURE A23. The Hon'ble High Court while setting the order of the Ahmedabad Bench of this Hon'ble Tribunal has held that the termination of the petitioner thereon on the ground that he was contractual employee has not been accepted and the Hon'ble Bench held that the respondents ought to have followed the clauses No.6.3.2 and 6.3.3 of NIMH Recruitment and Merit Assessment Rules 2004 and granted relief to the petitioner therein. The applicant is entitled for relief under this judgment.
5.8. Viewed from any angle the impugned reply dated 9.8.2024 sent by the second respondent does not test the legal scrutiny and the applicant is entitled for relief from this Hon'ble Tribunal."
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3. The brief facts of the case, as mentioned in the synopsis, are that:
The applicant joined the service of the National Institute of Miners' Health, Nagpur, in the year 2005, initially on a contract basis, but was confirmed soon after her joining. She earned promotions from time to time. In 2019-20, after a cabinet decision, the National Institute of Miners' Health was merged with the National Institute of Occupational Health, with its main office at Ahmedabad and a regional office at Bangalore. Upon such merger, the applicant was first transferred to Ahmedabad and subsequently, upon her request, she was transferred to the Bangalore regional office. The applicant is entitled to be considered for promotion under the Merit Based Assessment Promotion Scheme after rendering a certain period of service in each post. The third respondent issued an office memorandum on 18.11.2021 to consider her case under MBAPS and fixed the interview on 22,11.2021. The applicant participated in the interview and performed very well, and was expecting a promotion order. However, despite a lapse of considerable time, the respondents did not announce the results, and therefore, the applicant submitted a series of representations. On 9.8.2024, the respondents issued the impugned order, which neither redresses her grievance nor rejects the SHAINEY VIJU SHAINECAT BANGALORE Y VIJU 2026.02.24 14:08:27+05'30' 7 O.A.No.170/48/2025/CAT/BANGALORE case of the applicant, but it was a vague reply. Being aggrieved by the said reply, the applicant has preferred this O.A.
4. On notice, the respondents have filed their reply statement to the O.A as well as an additional reply statement. A rejoinder has been filed on behalf of the applicant.
5. The case came up for final hearing on 5.2.2026. Learned counsel Shri.B.S.Venkatesh Kumar for the applicant and learned counsel Shri. S. Prakash Shetty for the respondents were present and heard.
6. We have carefully gone through the entire records and considered the rival contentions.
7. From the rival contentions, the following issues have come up for our consideration:
Q.1. Whether the merger of the two institutions, National Institute of Miners' Health, Nagpur (NIMH for short) Nagpur and ICMR National Institute of Occupational Health, (NIOH for short) Ahmedabad, was on SHAINEY VIJU SHAINECAT BANGALORE Y VIJU 2026.02.24 14:08:27+05'30' 8 O.A.No.170/48/2025/CAT/BANGALORE equal footing and, based on that, whether any distinction in service conditions can be made between the employees of ICMR NIOH and the erstwhile employees of NIMH after due merger?
Q.2. From which date will the applicant's appointment be considered as regular in the service of her being initially appointed on a contract basis in the NIMH and, subsequently, her services were retrospectively regularized from the date of her initial appointment? Q.3. Whether the respondents are justified in asserting that the applicant is holding only a supernumerary post which was created in the absence of a regular post when NIMH employees were taken over by the NIOH? Q.4. Is the assertion of the respondents that, MBAPS Scheme guidelines applies only to those Technical Staff initially on regular SHAINEY VIJU SHAINECAT BANGALORE Y VIJU 2026.02.24 14:08:27+05'30' 9 O.A.No.170/48/2025/CAT/BANGALORE Technical cadre strength of ICMR by direct recruitment, is supported by any rules or O.Ms?
Q.5. If so, what orders ?
8. From the pleadings and documents produced, it is clear that most of the facts are not denied by either party. The most fundamental facts are in Annexure A-3 on page 16, which is titled "Compliance Report on merger/amalgamation related issues of the National Institute of Miners' Health, Nagpur, with ICMR's National Institute of Occupational Health, Ahmedabad." Inter-alia other things, it mentions a cabinet decision which reads as follows:
"The Union cabinet, chaired by the Prime Minister Narendra Modi approved to dissolve National Institute of Miners' Health (NIMH), an autonomous Institute under Ministry of Mines (MoM) and merge / amlgamate with ICMR- National Institute of Occupational Health (NIOH), Ahmedabad, Ministry of Health & Family Welfare (MoH&FW) with all assets and liabilities; and absorb all the employees of NIMH in NIOH in the similar post/pay scale as the case may be and their pay be protected."
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9. This decision of the Cabinet was converted into merger/amalgamation proceedings. Further, it mentions in paragraph 2 the following:
"2. Issue of transfer order for NIMH's regular staff:
Consequent upon ICMR's O.M No.68/14/2017- NCD-1 (Merger) dated 10.06.2020, necessary order for transfer/absorption of staff of NIMH with NIOH were issued vide NIOH office order No.File No.DIC/61/RRT-NIMH/2015/2020- 21/400 dated 23.06.2020 and accordingly 14 employees of NIMH joined their duties at ICMR- NIOH, Ahmedabad and its ROHC(S), Bangalore respectively. The details are as under:
Sl. Name & Place of Designation Date of No. Designation posting/joining joining 1 Dr.Sarang Dhatrak Ahmedabad Scientist D 03.07.2020 2 Mr.Debasis Bangalore Scientist D 02.07.2020 Chatterjee 3 Dr.Shubhangi Bangalore Scientist D 06.07.2020 Pingle 4 Dr.S.Prajapati Ahmedabad Scientist B 03.07.2020
5. Dr.Nikhil Kulkarni Ahmedabad Technical 03.07.2020 Officer-B
6. Mr.Umesh Dhumne Ahmedabad Technical 03.07.2020 Officer-B
7. Mrs.Shilpa Inglore Bangalore Technical 03.07.2020 Officer-B
8. Mrs.Aruna Jawade Ahmedabad Technical 06.07.2020 SHAINEY VIJU SHAINECAT BANGALORE Y VIJU 2026.02.24 14:08:27+05'30' 11 O.A.No.170/48/2025/CAT/BANGALORE Officer-B
9. Mrs.Priyanka BangalorR Technical 06.07.2020 Mankar Officer-A
10. Dr.Rajani Tumane Ahmedabad Technical 06.07.2020 Officer-A 11 Ms.Shweta Gupta Ahmedabad Technical 06.07.2020 Assistant 12 Mr.Raj Kumar Ahmedabad Sr.Admn 06.07.2020 Officer 13 Mr.Milind Dixit Ahmedabad Personal 07.07.2020 Secretary 14 Mr.Yashwant Ahmedabad Driver 06.07.2020 Meshram
10. Further in paragraphs 3, the same proceedings mention the following:
"3. Proposal to ICMR for re-designation of existing NIMH's regular staff according to ICMR guidelines.
The proposal for re-designation of existing NIMH's regular staff according to ICMR guidelines has already been sent to Council vide email dated 12.06.2020. The details are as under:
Sl. Name & Present Proposed
No. Designation designation re-
held in designation
NIMH in ICMR
1 Dr.Sarang Dhatrak Assistant Scientist D
Director
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O.A.No.170/48/2025/CAT/BANGALORE 2 Mr.Debasis Assistant Scientist D Chatterjee Director 3 Dr.Shubhangi Assistant Scientist D Pingle Director 4 Dr.S.Prajapati Research Scientist B Officer
5. Dr.Nikhil Kulkarni Research Scientist B Officer
6. Mr.Umesh Scientific Technical Dhumne Officer Officer - B
7. Mrs.Shilpa Inglore Scientific Technical Officer Officer - B
8. Mrs.Aruna Jawade Scientific Technical Officer Officer - B
9. Mrs.Priyanka Jr.Scientific Technical mankar Officer Officer - A
10. Dr.Rajani Tumane Jr.Scientific Technical Officer Officer - A 11 Ms.Shweta Gupta Sr.Scientific Technical Assistant Assistant 12 Mr.Raj Kumar Sr.Admn Sr.Admn Assistant Officer 13 Mr.Milind Dixit Personal Personal Secretary Secretary 14 Mr.Yashwant Driver- Driver Meshram cum-Lab Attendant SHAINEY VIJU SHAINECAT BANGALORE Y VIJU 2026.02.24 14:08:27+05'30' 13 O.A.No.170/48/2025/CAT/BANGALORE These tables clearly substantiated that the applicant Dr.Rajani Tumane who was Junior Scientific Officer in the erstwhile NIMH joined ICMR - NIOH on 06.07.2020, was re-designated as Technical Officer-A.
11. Further in paragraphs 4, the same proceedings mention the following:
"4. Seniority of Staff:
It was discussed and finalized during the meeting held on 09.06.2020 under the chairmanship Under Secretary, DHR wherein the officials of ICMR Hqrs., ICMR-NIOH and NIMH officials were present. Dr.R.Lakshminarayanan, ADG, ICMR informed that as of now, no seniority is maintained in the ICMR as far as Scientific and Technical Staff, since these staff are covered under FCS and MBAP schemes respectively. However, seniority in respect of administrative staff, is being maintained centrally at ICMR from the post of Assistant and above. Thus, the seniority list of administrative staff will be prepared at ICMR."
12. Simple reading of the above shows that based on the Cabinet decision, the staff of the old NIMH were merged equitably with the ICMR NIOH. It mentions that at that point of time, no seniority was maintained in the ICMR as far as the Scientific and Technical Staff were concerned, since those staff were covered under FCS and MBAP SHAINEY VIJU SHAINECAT BANGALORE Y VIJU 2026.02.24 14:08:27+05'30' 14 O.A.No.170/48/2025/CAT/BANGALORE schemes respectively. However, it clarified that the seniority in respect of administrative staff was being maintained centrally at ICMR from the post of Assistant and above. From the Cabinet decision placed before us, and from the proceedings of the merger, it is clear that there was no proposal for making any distinction between similarly placed employees of NIMH and those of NIOH. This document is neither disputed nor has its content been challenged by the respondents.
13. Further, in Annexure A-6 we find the letter dated 19.11.2019, from the Director General of ICMR to the Senior Administrative Officer of NIMH with the subject, "Merger of National Institute of Miner's Health Nagpur with ICMR - National Institute of Occupational Health, Ahmedabad - reg.", which further mentions the following:
"Sub: Merger of National Institute of Minor's Health Nagpur with ICMR- National Institute of Occupational Health, Ahmedabad-reg. Sir, This is with reference to your letter dated NIMH/Admin-77 (Merger)/2019-20/857 dated 31.10.2019 on the above mentioned subject. It is informed that since this proposal of merger has already been approved by the Cabinet which is binding on ICMR, you may SHAINEY VIJU SHAINECAT BANGALORE Y VIJU 2026.02.24 14:08:27+05'30' 15 O.A.No.170/48/2025/CAT/BANGALORE proceed with de-registration. ICMR agrees to the following
1. All the employees of NIMH will be absorbed in NIOH in the similar post/ pay scale as the case may be and seniority & pay will be protected.
2. Merger will be effective from that date of the De-resignation certificate issued by Registrar of Society Act, Kolar (Karnataka).
3. A separate appointment /absorption letter will be issued by NIOH to each individual clearly mentioning his/her new designation in NIOH/ICMR along with protection of seniority/pay scale and date of absorption. This issues with the approval of the Competent Authority."
Simple reading of the above shows that the understanding of ICMR on the date of the said letter, 19.11.2019, about the cabinet decision on the merger of the National Institute of Miner's Health Nagpur with ICMR - National Institute of Occupational Health, Ahmedabad was that since this proposal of merger had already been approved by the Cabinet which was binding on the ICMR, so NIMH may be de-registered and ICMR agreed to certain terms including the condition that all the employees of NIMH will be absorbed in NIOH in the similar post/pay scale as the case may be and the seniority and pay will be protected. Hence, this document clearly stated that there was an unconditional merger of the equivalent SHAINEY VIJU SHAINECAT BANGALORE Y VIJU 2026.02.24 14:08:27+05'30' 16 O.A.No.170/48/2025/CAT/BANGALORE cadres between the two organisations and for those coming from outside, their seniority and pay were fully protected. Protection of seniority means eligibility for promotion and other service benefits of those in equivalent or similar posts/pay scales. Further, it mentions that the merger will be effective from the date of the de-registration certificate issued by the Registrar of Society Act, Kolar (Karnataka) and that a separate absorption letter will be issued by NIOH to each individual, clearly mentioning his/her new designation in NIOH along with protection of seniority/pay scale and date of absorption. This document has also not been denied or controverted or rescinded or challenged by the respondents. And at this belated stage the respondents are barred to plead anything different, as an estoppel will operate on them.
14. Further, Annexure A-7 letter of ICMR dated 17.11.2020 with the subject, "Merger of NIMH with ICMR-NIOH, Ahmedabad - discrepancies found in service books by the Committee" mentions that the merger formalities of NIMH, Nagpur, with NIOH Ahmedabad, including de-registration of NIMH, have already been completed. All 14 (fourteen) staff have also been taken into the strength of NIOH, Ahmedabad of substantive basis. Hence, there is SHAINEY VIJU SHAINECAT BANGALORE Y VIJU 2026.02.24 14:08:27+05'30' 17 O.A.No.170/48/2025/CAT/BANGALORE no requirement for the creation of any post. This letter is also neither denied nor controverted by the respondents. It also further shows, as a matter of fact, that the NIOH of ICMR had sufficient vacancies at the appropriate level to absorb those 14 staff who were being merged from the abolished NIMH, and there was no creation of any supernumerary post.
15. Further, a document has been placed as Annexure A-5 with the subject, "Combined Seniority of National Institute of Miner's Health (NIMH) personnel and ICMR - National Institute of Occupational Health (NIOH) personnel." Therein at serial No.55, the applicant Dr Rajani Tumane is identified as Technical Officer-A in Level 7, and it is shown that her date of appointment was 19.12.2005 and the date of her last promotion was 01.01.2016. The respondents have also not disputed this document, nor has anyone placed on record whether this seniority list was ever challenged or set aside. Hence, it is clear that in terms of the merger, as the Cabinet had decided that all the employees of NIMH to be absorbed into NIOH on a similar post/pay scale, as the case may be, and their pay would be protected. Clearly, absorption of employees in similar posts and pay scales in NIMH into similar posts and pay scales in NIOH with pay SHAINEY VIJU SHAINECAT BANGALORE Y VIJU 2026.02.24 14:08:27+05'30' 18 O.A.No.170/48/2025/CAT/BANGALORE protection meant equitable seniority to the employees coming from the abolished organisation, and the same intent we find was rightly translated into the 13.01.2022 combined seniority list of NIMH employees and NIOH employees. In their reply statement at paragraph 7, the respondents have asserted that the seniority list referred by the applicant is not for the purpose of claiming MBAPS by the applicant. But when the merger was equitable, any such pleading is contrary to the facts on record and in contravention of the "Cabinet decision", and its understanding and implementation by the respondents.
16. The respondents further asserted in paragraph 7 of the reply statement that on 14.09.2016, a Merit Based Assessment Promotion Scheme (briefly referred to as MBAPS) for Technical Staff of only ICMR was introduced. The guidelines were also issued vide O.M No.16/47/2016 - Admin.II dated 14.09.2016 for the implementation of MBAPS for the Technical Staff. The guidelines clearly encompass general instruction, eligibility criteria, an option to switch over to MBAPS and other relevant procedures. The respondents further assert that it is very clear in the guidelines that the said scheme applies to those Technical Staff appointed initially on the regular Technical SHAINEY VIJU SHAINECAT BANGALORE Y VIJU 2026.02.24 14:08:27+05'30' 19 O.A.No.170/48/2025/CAT/BANGALORE Cadre Strength of ICMR on direct recruitment. It is applicable to those technical staff governed by vacancy-based promotion who are appointed on a regular basis initially through direct recruitment. The respondents further assert that the appointment of the applicant, Dr.Rajani G Tumane, was not on the regular cadre and was initially on a contract basis. The applicant was appointed on 19.12.2005, and her appointment letter is filed as Annexure R-1. The respondents further produced Annexure R-2, which regularised retrospectively from the date of initial contract engagement of the applicant vide letter dated 15.12.2010, which is also produced as Annexure A-1.
17. Further, the respondents have filed the document in Annexure R-3, which is the impugned order at Annexure A-15 dated 09.08.2024, with the subject, "Request of Dr.Rajani Tumane to consider her promotion assessment under the MBAPS scheme - regarding." We will come to this document subsequently.
18. Further, in paragraph 7 itself, the respondents argue that on being superannuated/leaving the job/death, the post shall not remain with NIOH, Ahmedabad for further action and has to be SHAINEY VIJU SHAINECAT BANGALORE Y VIJU 2026.02.24 14:08:27+05'30' 20 O.A.No.170/48/2025/CAT/BANGALORE abolished as it is not a sanctioned post of ICMR and accordingly, the request of the applicant is rejected as she is not entitled to MBAPS as it is not the case as if all the Technical Staffs are eligible for MBAPS automatically. We do not find these assertions supported by any document, evidence, or rule.
19. Let us examine some of the related documents which may shed more light on these assertions. The MBAPS guidelines dated 14.09.2016 have been filed by the applicant along with Annexure A-
15. The respondents have not shown the relevant clause in the guidelines to show that the scheme applies to those Technical Staff appointed initially on a regular Technical Cadre Strength of ICMR on direct recruitment only, and that it is applicable for those Technical staff governed by vacancy-based promotion who are appointed on a regular basis initially through direct recruitment.
20. We have particularly examined this document dated 14.09.2016 with the subject, "Guidelines for implementation of Merit Based Assessment Promotion Scheme (MBAPS) for Technical Staff of Indian Council of Medical Research - reg.". It mentions in paragraph 2.1 that:
SHAINEY VIJU SHAINECAT BANGALORE Y VIJU 2026.02.24 14:08:27+05'30' 21 O.A.No.170/48/2025/CAT/BANGALORE " 2.1. The existing Technical staff as on 1.1.1986 onwards who are governed by vacancy-based promotion will have the option to switch over to the Merit-Based Assessment Promotion Scheme within 7 days from the date of issue of these guidelines. "
21. Obviously, in this organisation, earlier this scheme was not there; only vacancy-based promotion was there. Hence, such an option was created, and the rules of all government organisations envisaged an exactly similar scheme of vacancy-based promotion. Hence, no discrimination can be made based on such provisions, as the merger of the two organisations had happened on equitable terms as per the Cabinet decision. It is clear that the Cabinet had clearly decided following:
"The Union cabinet, chaired by the Prime Minister Narendra Modi approved to dissolve National Institute of Miners' Health (NIMH), an autonomous Institute under Ministry of Mines (MoM) and merge / amlgamate with ICMR- National Institute of Occupational Health (NIOH), Ahmedabad, Ministry of Health & Family Welfare (MoH&FW) with all assets and liabilities; and absorb all the employees of NIMH in NIOH in the similar post/pay scale as the case may be and their pay be protected."
(Annexure A-3)
22. Further, the said document mentioned about the seniority of staff in paragraph 4 (Annexure A3) in the following manner:
SHAINEY VIJU SHAINECAT BANGALORE Y VIJU 2026.02.24 14:08:27+05'30' 22 O.A.No.170/48/2025/CAT/BANGALORE "4. Seniority of Staff:
It was discussed and finalized during the meeting held on 09.06.2020 under the chairmanship Under Secretary, DHR wherein the officials of ICMR Hqrs., ICMR-NIOH and NIMH officials were present. Dr.R.Lakshminarayanan, ADG, ICMR informed that as of now, no seniority is maintained in the ICMR as far as Scientific and Technical Staff, since these staff are covered under FCS and MBAP schemes respectively. However, seniority in respect of administrative staff, is being maintained centrally at ICMR from the post of Assistant and above. Thus, the seniority list of administrative staff will be prepared at ICMR."
23. The same is further supported by the letter dated 19.11.2019 of ICMR to NIMH (Annexure A-6), which clearly mentioned that all the employees of NIMH will be absorbed into NIOH on a similar post/pay scale, as the case may be, and seniority and pay will be protected.
24. Further Annexure A-7 letter dated 17.11.2020 from ICMR with the subject, "Merger of NIMH with ICMR-NIOH, Ahmedabad - discrepancies found in service books by the Committee" shows that all the 14 (fourteen) staff have also been taken into the strength of NIOH, Ahmedabad of substantive basis. Hence, there is no requirement for the creation of any post. This document contradicts SHAINEY VIJU SHAINECAT BANGALORE Y VIJU 2026.02.24 14:08:27+05'30' 23 O.A.No.170/48/2025/CAT/BANGALORE the later assertion of the respondents in paragraph 7 of the reply statement. And as once the staff of NIMH are taken on substantive regular posts of NIOH of ICMR and as per earlier documents, their seniority and pay scale have to be protected, and they have been absorbed in similar equivalent posts with the same pay scale, no discrimination can be made by the respondents at this or subsequent stages by telling that the applicants were not initially appointed by the ICMR on a direct recruitment basis. Merger of two Organisations based on an unusual Cabinet decision due to unusual administrative exigencies and reorganisation, is an exceptional event, and one cannot over read any particular provision of the ordinary service rule to deny any benefit to an employee by telling that he was an outsider. Hence, the understanding that the rule contained in O.M dated 14.09.2016 in No.16/47/2016-Admn.II with the subject, "Guidelines for implementation of Merit Based Assessment Promotion Scheme (MBAPS) for Technical Staff of Indian Council of Medical Research - reg.", will not apply to the applicant is erroneous and incongruous with the cabinet decision, and all the earlier documents of the respondent department.
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25. Further in Rule 2(2) of the same document, it mentions that the employee will have the option to switch over to the scheme from the date of their appointment on a regular basis through direct recruitment. In this case, his/her service for eligibility for assessment to the next grade will be counted from the date of such appointment. Employees appointed on or after the implementation of these guidelines shall be covered under the Merit Based Assessment Promotion Scheme, and no option for vacancy-based promotion shall be available to them. The paragraph only mentions their appointment on a regular basis through direct recruitment for identifying their respective switch over dates. It only means switching over will be from the date of regular recruitment, and it does not mean a person who is regularly and directly recruited will only have option to switch over.
26. And in the case of the applicant, although the applicant was appointed on a contract basis initially vide order dated 24.11.2005, which refers to NIMH/PER/2005-06/988 wherein inter alia other things, paragraph 1 mentions that:
SHAINEY VIJU SHAINECAT BANGALORE Y VIJU 2026.02.24 14:08:27+05'30' 25 O.A.No.170/48/2025/CAT/BANGALORE "1.Initially, the appointment is for a period of 5 years from the date of assumption of charge. "
27. But vide their order dated 15.12.2010 in NIMH/Personnel(17)/2010-11/1213 with the subject, "Absorption on Regular Service and Promotion on Successful Completion of Contract Period" inter alia other things, it mentions that:
"This is to inform that the Governing body has approved absorption of Miss Rajani Tumane, Scientific Assistant in the pay scale of Rs.4500- 125-7000 on a regular basis w.e.f 19/12/2005 and promotion to the post of Senior Scientific Assistant in the pay band 2 Rs.9300-34800 with grade pay Rs.4200/- with effect from 1.1.2011."
From the simple reading of this, it is evident that the Governing Body had approved the absorption of the applicant on successful completion of her probation and she had been regularized from the date of her initial appointment on 19.12.2005. Hence, it cannot be said that the person was not directly recruited nor was regularly recruited. These are dated documents of the year 2005 and 2010 and merit of the same cannot be examined by the respondent at this stage. NIMH was also a Government institution equally responsible. Unless anything to the contrary shown and proved, it has to be presumed that the applicant was selected through a lawful process, against a sanctioned SHAINEY VIJU SHAINECAT BANGALORE Y VIJU 2026.02.24 14:08:27+05'30' 26 O.A.No.170/48/2025/CAT/BANGALORE post, and served NIMH uninterrupted continuously on probation but on contract basis and was found suitable and eligible, and so NIMH in the year 2010 duly regularised her services retrospectively from 2005. And considering her as regular employee of NIMH, as per Cabinet decision her services were absorbed in NIOH of ICMR. Anyone in Government are estopped from doubting, discrediting or re- interpreting this early chain of events, old decisions and facts. In our considered opinion, we cannot deny the claim of the applicant for opting for the MBAPS scheme at this juncture, which is otherwise available to an equivalently situated employee who was directly recruited by the ICMR.
28. The wording used in paragraph 2.2 is only showing the characteristics of certain employees on the day of their appointment. It does not exclude any technical staff who are otherwise qualified for MBAPS or to opt for a further scheme. The second reading of the paragraph 2.2 is essential, which mentions that the employees will have the option to switch over from the date of their appointment on a regular basis through direct recruitment. The said clause means the option to switch over from their date of direct recruitment, and not only do the direct recruits have the option to switch over. This notion SHAINEY VIJU SHAINECAT BANGALORE Y VIJU 2026.02.24 14:08:27+05'30' 27 O.A.No.170/48/2025/CAT/BANGALORE and assertion of the respondents that anyone who is not appointed on a regular and direct recruitment basis by the ICMR will not be eligible is further refuted by the same circular, which mentions who joined the technical post of Scientist B based on LDCE will also have the option to revert to the MBAPS. Hence, we do not find any support for any of the assertion of the respondents in paragraph 7 of the reply statement, and hence, we reject those assertions completely.
29. Further, we do not find anywhere in the said MBAPS guidelines that it is only applicable to the sanctioned posts of ICMR and that the applicant was in a supernumerary post. But this fact is completely controverted by the contents of the cabinet decision at Annexure A-6, and the letter dated 19.11.2019 of ICMR and Annexure A-7 letter dated 17.11.2020 of ICMR and further from the seniority list which is enclosed with the letter of ICMR dated 13.01.2020 placed as Annexure A-5. The letter No.68/4/MBAPS/NIOH/2024-NCD-II dated 09.08.2024 placed as Annexure A-15 (impugned order) mentions the following:
"Reference to the above mentioned subject. In reference to the representation made by the applicant to ICMR, this is to inform that the SHAINEY VIJU SHAINECAT BANGALORE Y VIJU 2026.02.24 14:08:27+05'30' 28 O.A.No.170/48/2025/CAT/BANGALORE matter has been examined and observation are as follows:
With reference to the Guidelines of MBAPS of ICMR's Office Memorandum No. 16/47/2016- Admn. II dated 14th Sept., 2016 (copy attached), at para 1.2, it is mentioned that "All Group 'B', 'C' & 'D' Technical Staff on regular Technical Cadre strength of ICMR ...... are covered under the Scheme." At para 2.2 of the said OM., it is specifically mentioned that "The employees will have the option to switch over to the Scheme from the date of their appointment on regular basis through direct recruitment."
2. The staff of NIMH were initially on contract basis and subsequently regularized. Similarly, the cases of ICMR, wherein the contract services were regularized with the approval of the Department of Expenditure, M/o Finance, GOI, the matter was forwarded to DHR seeking opinion of DoPT regarding grant of consequential benefits such as pension, gratuity, ACP/MACP etc. in response, in the DHR's Letter No. C. 30011/34/2013-HR (Pt. 5) dated 7th Sept. 2017 (copy attached), at para 1, it is specifically mentioned that DOPT has observed that "the regular services for the purpose of MACPS shall commence from the date of joining of a post in direct entry grade on a regular basis on direct recruitment basis or on absorption/re- employment basis. Services rendered on contract/adhoc basis before regular appointment on pre-appointment training shall not be taken into reckoning."
This is for your information and necessary action."
SHAINEY VIJU SHAINECAT BANGALORE Y VIJU 2026.02.24 14:08:27+05'30' 29 O.A.No.170/48/2025/CAT/BANGALORE
30. Simple reading of the same shows that the MBAPS guidelines for ICMR O.M dated 14th September 2016, ( para 1.2) "All Group B, C and D Technical Staff on regular Technical Cadre strength of ICMR are covered under the Scheme and at paragraph 2.2, it specifically mentions that the employees will have the option to switch over to the Scheme from the date of their appointment on regular basis through direct recruitment. The NIMH staff were initially on a contract basis and subsequently regularised. This paragraph makes the case simpler, as it recognises that MBAPS was applicable to Technical staff of ICMR who were on regular Technical Cadre strength and as per Cabinet decision and the merger proceedings of the ICMR and their subsequent action, ICMR have equitably taken over and merged the NIMH employees with their equivalent cadres in regular and substantive vacancies, hence all such merged employees will be eligible for MBAPS if their counterparts in the ICMR were eligible.
31. Further the said order mentions some unrelated case of ICMR employees, wherein the contract services were regularised with the approval of the Department of Expenditure, M/o. Finance, GOI, the matter was forwarded to DHR seeking the opinion of DoPT regarding SHAINEY VIJU SHAINECAT BANGALORE Y VIJU 2026.02.24 14:08:27+05'30' 30 O.A.No.170/48/2025/CAT/BANGALORE grant of consequential benefits such as pension, gratuity, ACP/MACP, etc. in response, in the DHR's Letter MP/C/30011/34/2013-HR (Pt.5) dated 7th Sept., 2017. At para 1, it is specifically mentioned that DoPT has observed that "the regular services for the purpose of MACPS shall commence from the date of joining of a post in direct entry grade on a regular basis on direct recruitment basis or on absorption/re-employment basis. Services rendered on a contract/ad hoc basis before the regular appointment, including pre-appointment training, shall not be taken into account. Simple reading of this shows that subject matter of this clarification from DoP&T, was unrelated, and erroneously the respondents are trying to link those with the case of the applicant. The nature of earlier contractual appointment (from 2005) and retrospective unconditional regularisation (2010) effective from 2005 by NIMH are not issues which can legally be visited by the NIOH-ICMR at this juncture. The only course of action after equitable merger open to respondent was to extend all service benefits to the applicant as was available to any other NIOH-ICMR employee of the same rank and pay.
32. We further find that the impugned order does not explain what is rejected and what is being decided, to that extent it remains a non- SHAINEY VIJU SHAINECAT BANGALORE Y VIJU 2026.02.24 14:08:27+05'30' 31 O.A.No.170/48/2025/CAT/BANGALORE speaking, unintelligible and a perverse order. We are unable to make any sense out of this. Although this is read and explained by the respondents in light of their para 7 assertions in the reply statement. It may come out that, essentially, they are trying to say that only regular ICMR appointees who were initially appointed through direct recruitment are eligible for the MBAPS scheme, and that the applicant, being a merged employee, would not be eligible for the same benefits. We completely disagree with the creative explanation and arguments of the respondents.
33. The respondents have failed to show us the document which shows any similar advice from the DoP&T specifically for the merged employees, whose services were merged in exceptional circumstances by a Cabinet decision. The second paragraph mentions some reference to MACP, but it does not make any sense in terms of applicability of MBAPS. Consideration of adhoc contract service and regular appointment for the purpose of MBAPS are two different matters. In this particular case, the primary issue was whether the MBAPS applies to all technical staff of ICMR institutions of Group B, C, and D as mentioned and will it only be for direct recruits who are initially appointed by the ICMR and shall not apply to a person who started his SHAINEY VIJU SHAINECAT BANGALORE Y VIJU 2026.02.24 14:08:27+05'30' 32 O.A.No.170/48/2025/CAT/BANGALORE job on contractual employment and were regularized retrospectively from her initial date of appointment in some other Organisation, and came to the NIOH-ICMR subsequently by merger. These explanations are creative over reading of two unrelated matters and an afterthought only to discriminate against the merged employees of NIMH, hence we reject all such explanations completely.
34. The case of the applicant is on a distinct and different footing as it is a case of a merger of two organizations of Government of India in administrative contingency, and the cabinet's decision is very clear that the merger is on an equitable basis and the cabinet decision is also rightly translated as such in terms of pay protection and seniority which is evident from the compliance report on merger dated 10.06.2020, and the seniority list dated 13.01.2020 (Annexure A-15). Further, in Annexure A-6, the merger details dated 19.11.2019, clearly mention that all the employees of NIOH are on similar post/pay scales, as the case may be, and the seniority and pay will be protected and further the Annexure A-7, mentions that the 14 staff of NIMH have also been taken into the strength of NIOH on substantive post and there is no requirement for creation of any post. In view of these documents, it is amply clear that impugned SHAINEY VIJU SHAINECAT BANGALORE Y VIJU 2026.02.24 14:08:27+05'30' 33 O.A.No.170/48/2025/CAT/BANGALORE order erroneously, perversely and illegally excluded by implication the equitably merged employees of erstwhile NIMH from the purview of MBAPS thus violating Article 14 and 16 of the Constitution.
35. Further, in paragraph 7, the respondents have tried to say that the applicant is on a supernumerary post and on their superannuation/leaving job or death, the post will not remain with NIOH, and will be abolished as it is not a sanctioned post of ICMR, etc. But these facts are not at all supported by any document, and they are clearly contradicted by the records (Annexure A-7). Those contradictory submissions are contemptuous and amounting to knowingly misleading the Court. Hence, in the light of the documents placed before us and averments of the parties, our answers to the issues framed are:
Answer to question No 1: From the evidence placed before us and as discussed above, the merger of the employees of the two institutions, NIMH and NIOH, was on equal footing and, based on that, no distinction in service conditions can be made between similarly situated (equivalent post) employees of NIMH and NIOH of ICMR after merger. SHAINEY VIJU SHAINECAT BANGALORE Y VIJU 2026.02.24 14:08:27+05'30' 34 O.A.No.170/48/2025/CAT/BANGALORE Answer to Question No.2: In the case of the applicant, as initially, the appointment was on a contract basis whose period was treated as probation for 5 years, but her service had long been duly and retrospectively regularized from the date of her initial appointment on 19.12.2005. Hence, her service has to be counted regularly from that date and whatever prevailing rules in the merged cadre shall be applicable to her and no distinction in her salary, seniority or any other service benefits can be made. Cabinet decision and its translation into actions by ICMR shall not allow any distinction to be made between the merged employees of NIMH and the employees who were originally borne on the cadre of NIOH. After cabinet decision, and completion of merger of cadres, there is no scope for ICMR or NIOH to revisit any service issues which were settled long back by the applicant's previous employer.
Answer to Question No.3: We are surprised by the respondents' assertion that the applicant is holding only a supernumerary post. As they now change their version that a supernumerary post was created for the applicant in the absence of a regular post when numerous employees of NIMH SHAINEY VIJU SHAINECAT BANGALORE Y VIJU 2026.02.24 14:08:27+05'30' 35 O.A.No.170/48/2025/CAT/BANGALORE were merged with NIOH as asserted in the reply statement, but the Annexure A-7 dated 17.11.2020 is very clear that no such supernumerary post was created, and that the merger was substantive and on equitable terms. Hence, the assertion of the respondents is not supported by any document and is rejected.
Answer to Question No.4: As discussed, we do not find any support from any document for the assertion of the respondents that MBAPS scheme guidelines apply only to those technical officials on regular technical cadre strength of ICMR on direct recruitment, and it will not apply to any merged employees. This assertion is not supported by any employees rules, O.Ms, etc., and there was no scope of any discrimination between any employees who are on the regular employment of ICMR-NIOH, whether merged or otherwise, as it is against the Articles 14 and 16 of the Constitution.
36. After considering all the contentions and examining the evidence placed, we are of the firm opinion that no discrimination can be made between the merged and the original employees of NIOH in the identical cadre, as it would be against the cabinet decision. Hence, we pass the following orders:
SHAINEY VIJU SHAINECAT BANGALORE Y VIJU 2026.02.24 14:08:27+05'30' 36 O.A.No.170/48/2025/CAT/BANGALORE The Original Application is allowed. The impugned order in Annexure A15 dated 09.08.2024 issued by respondent no.2 is quashed and set aside. The matter is restored to the file of the second respondent to reconsider the matter and to pass a speaking, reasoned and appropriate order in accordance with law, having regard to the request made by the applicant for consideration of her case for promotional assessment under the MBAPS scheme, not under the MACP scheme.
Compliance shall be made in an expeditious manner in any event not later than eight weeks from the date of receipt of a certified copy of the order.
Original Application stands disposed of accordingly. All associated M.As, if any pending, are disposed of accordingly. No order as to costs.
Sd/- Sd/-
(DR. SANJIV KUMAR) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
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SHAINEY VIJU
SHAINECAT
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Y VIJU 2026.02.24
14:08:27+05'30'