Karnataka High Court
Sanjeeda Tabassum M vs Union Of India on 29 April, 2025
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WP No.11802/2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF APRIL, 2025
PRESENT
THE HON'BLE MR JUSTICE V KAMESWAR RAO
AND
THE HON'BLE MR JUSTICE T.M.NADAF
WRIT PETITION NO. 11802/2023 (S-CAT)
BETWEEN:
SANJEEDA TABASSUM.M,
D/O M.MOHMMED JALAL (LATE),
AGED ABOUT 55 YEARS,
WORKING AS BIO-CHEMIST,
NATIONAL INSTITUTE OF UNANI MEDICINE,
KOTTIGEPALYA, MAGADI MAIN ROAD,
BANGALORE-560 091,
R/AT NO.97, 2ND STAGE,
2ND BLOCK, NAGARABHAVI,
BANGALORE-560 072.
...PETITIONER
(BY SRI. VIJAYA KUMAR, ADVOCATE)
AND:
1. UNION OF INDIA,
REPRESENTED BY ITS SECRETARY,
MINISTRY OF AYUSH, AYUSH BHAVAN,
'B' BLOCK, GPO COMPLEX,
INA COLONY, GOVERNMENT OF INDIA,
NEW DELHI-110 023.
2. THE DIRECTOR,
NATIONAL INSTITUTE OF UNANI MEDICINE,
KOTTIGEPALYA, MAGADI MAIN ROAD,
BANGALORE-560 091.
...RESPONDENTS
(BY SRI. H.SHANTHI BHUSHAN, DSGI FOR R1, SRI. SREEDHARA.P, ADVOCATE FOR SRI. VISHNU BHAT, ADVOCATE FOR R2) -2- WP No.11802/2023 THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING (I) TO SET-ASIDE THE ORDER DATED 15.02.2023 PASSED IN O.A.NO.170/00480/2018 VIDE ANNEXURE-A PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, BANGALORE BENCH, AND ALLOW THE APPLICATION (II) TO PASS SUCH OTHER ORDER AS THIS HON'BLE COURT DEEMS FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 01.04.2025, COMING ON FOR 'PRONOUNCEMENT OF ORDER' THIS DAY, V KAMESWAR RAO J., DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR JUSTICE V KAMESWAR RAO AND HON'BLE MR JUSTICE T.M.NADAF CAV ORDER (PER: THE HON'BLE MR JUSTICE V KAMESWAR RAO) The challenge in this petition is to an order dated 15.02.2023 passed by the Central Administrative Tribunal, Bangalore Bench, Bengaluru ('the Tribunal' for short) in Original Application No.170/00480/2018 filed by the petitioner, whereby the Tribunal has dismissed the OA by stating in paragraphs No.16 to 20 as under:
"16. The in-situ promotion scheme has been extended by the respondents to scientists engaged in exclusive research work in CCUM only. It cannot therefore, be made automatically applicable to the posts in NIUM, on the grounds that both institutions are engaged in undertaking similar activities. The -3- WP No.11802/2023 NIUM as an institution, as well as the posts within NIUM are distinct from the CCUM and the posts within the CCUM. These cannot be considered as belonging to the same class/posts.
17. As far as the plea of the applicant to consider the post of biochemist as a scientific post is concerned, there is no doubt that keeping in view the qualifications prescribed for the post, as well as the nature of the work of the applicant, the functions/ work being undertaken by the applicant is technical in nature. However, the post held by her as Biochemist in the NIUM has not been notified as that of a scientist under the 1990 In-Situ Promotion Rules. The list of posts which are covered under these rules are specifically listed in Annexure II of these Rules, and the specific institutions covered under these rules are also listed in Annexure III of these Rules. The NIUM has not been notified as an institution covered under these rules.
18. The respondents have also categorically stated that the applicant is not engaged in any research work or teaching duties, and the post held by her is not categorized as that of a scientist.
19. Accordingly, the plea of the applicant seeking parity with the scientists engaged in research work in the CCUM, for the purpose of coverage under in-situ promotion scheme cannot be countenanced.-4- WP No.11802/2023
20. Keeping the above points in view, the OA does not have any merit and is liable to be dismissed. It is accordingly dismissed. However, there shall be no orders so as to costs."
2. The OA was filed by the petitioner before the Tribunal inter alia seeking the following reliefs:
"a) To quash order No.R.13015/ 12/2016-NI dated 17.04.2017, issued by the 1st respondent, (Annexure-A17), vide which her representations dated 25.2.2015 and 18.8.2015 requesting for grant of in-situ promotion benefits to her as per the In-situ promotion Scheme notified by the Department of AYUSH under the Ministry of Health and Family Welfare, have been rejected.
b) To quash order No.13015/14/2017-NI (NIUM) dated 17.01.2018 issued by the 1st respondent (Annexure-A22) vide which the applicant has been advised not to write to the Ministry directly.
c) To quash Order No.2-58/04-
05/NIUM/B'lore/ESTT/5010, dated 29.01.2018,
issued by the 3rd respondent (Annexure-A 23), vide which applicant was directed not to file repeated representations for grant of in-situ promotion and not to repeat such misconduct in future.
d) To direct the respondent No-1 & 2 to amend the recruitment Rules of the 2nd respondent institution, to apply In-situ promotion Rules to be -5- WP No.11802/2023 applicable to 2nd respondent institution for the post of Biochemist in particular.
e) To direct the respondents 1 to 3 to consider her claim for extending the benefit of In-situ promotion to the post of BIOCHEMIST and extend all consequential benefits retrospectively along with arrears that she would be entitled to by applying In-
situ promotion scheme to a BIOCHEMIST in the 2nd respondent Institute.
f) To grant such other reliefs as this Tribunal deems fit in the facts and circumstances of the case."
3. Though various prayers were been made in the OA, in substance the prayer is for extending to the petitioner the benefit of in situ promotion to the post of Biochemist with all consequential benefits, retrospectively.
4. The facts to be noted are, the petitioner was appointed as a Biochemist in respondent No.2-Institute. Her pay was fixed in the pay scale of Rs.8000-275- 13500. When she joined the service, she was having M.Sc. degree with 5 years teaching experience. Later she received her doctorate i.e., Ph.D. degree as an -6- WP No.11802/2023 external candidate. Respondent No.2 is an Autonomous Institution established by respondent No.1 with the object of promoting the growth and development of Unani Medicine; to produce Post-Graduates in Unani Medicine and to undertake research in different branches of Unani System of Medicine.
5. It was the case of the petitioner before the Tribunal that, she has served the Institution on regular service for more than 13 years; she has established the biochemistry laboratory with the latest equipment and technology; she has contributed both in teaching and research work of the Institute; she is entitled to promotion to an appropriate teaching cadre of Assistant Professor/Professor with due recognition of her additional teaching services to the Institute without extra monetary benefit.
6. It was also her case that, respondent No.1, vide order dated 02/03.09.2008, extended the Department of Health (Group-A Gazetted Non-Medical Scientific and Technical Posts) In situ Promotion Rules, 1990 dated -7- WP No.11802/2023 28.11.1990 to three Central Research Councils i.e., Central Council for Research in Ayurveda and Siddha (CCRAS), the Central Council for Research in Unani Medicine (CCRUM) and Central Council for Research in Homoeopathy (CCRH). The Rules were not extended to respondent No.2-Institution though the Institution is also involved in teaching and research work in Unani Medicine under the administrative control of respondent No.1. It was also her case that, though her nature of work involves teaching and research under non-medical scientific field, the in situ promotion scheme has not been made applicable to the said post. The C and R Rules of respondent No.2-Institution do not provide for any promotional avenues from the cadre of Biochemist. By order dated 17.04.2017, respondent No.1 rejected the claim of the petitioner for extending the benefit of in situ promotion on the following grounds:
"i. The said promotion scheme is applicable only to Research Council Employees.
ii. The NIUM being an autonomous body is governed by its own bye laws and not by the Research Council Rules & Regulations.-8- WP No.11802/2023
iii. The Recruitment Rules for the post of Biochemist in NIUM does not specify the post as a scientific post and the applicant having not been assigned any research activities, is not eligible for In-situ promotion."
7. It appears that, the petitioner made further representations to the respondents. The respondent No.1, vide its communication dated 17.01.2018, stated that the matter has already been examined in the Ministry and disposed of on 17.04.2017 and as such, the request having been considered confirming the earlier order dated 17.04.2017, the claim cannot be accepted. Being aggrieved by the said order, the petitioner had filed the OA before the Tribunal.
8. The case of the respondents before the Tribunal was, the claim of the petitioner that she should be promoted as Associate Professor/Professor is not at all justified, as the post of Biochemist is an isolated post and as such, there is no promotional post to which she can be promoted, that too in teaching cadre. It was also stated that, the petitioner is not at all teaching to the PG -9- WP No.11802/2023 students or involved in research activities. She was asked to take classes for PG students during the period 2007-08 to 2010-11, since her workload was very much less, as the number of tests daily done in the laboratory were not more than 100. Her spare time was used in the interest of the Institute to handle the classes for PG students instead of allowing her to sit idle. Accordingly, she was entrusted with the work of teaching in the absence of required workload to her. From the year 2011 onwards, no class has been given to her, as separate teachers have been engaged to teach the subjects. Insofar as the claim for in situ promotion is concerned, it clearly specifies that the scheme is applicable only to the medical and non-medical scientists engaged purely in research activities in the three research institutions i.e., the CCRUM, CCRAS, and the CCRH. The said scheme is not at all applicable to other National Institutes under the respondents, as these institutes are not exclusively engaged in research activities. It is also stated, the post of Biochemist in respondent No.2 is an isolated post and as such, the
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WP No.11802/2023benefit of MACP has been extended to her and also as applicable to all other eligible members of the Institute. Further, as the C and R Rules of the Institution do not specify the post of Biochemist as a Scientific post, the in situ promotion scheme cannot be made applicable in the Institution. The Unani teaching faculty employed in the Institute are also not involved in any research activities except teaching the students in doing their research activities. It is a false statement that she is guiding and validating the lab research work for the students of MD/MS/Ph.D in Unani. Based on the research activities conducted by the students, giving lab report on it does not constitute research activities.
Analysis:
9. Having heard the learned counsel for the parties, the issue which arises for consideration is, whether the petitioner is entitled to the benefit of in situ promotion?
10. There is no dispute that, the in situ promotion is primarily applicable to research council employees. At least, nothing has been placed before us by the petitioner
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WP No.11802/2023to show that it is equally applicable to respondent No.2- Institution. This is for the reason that, in situ promotion is largely made applicable to research organizations. Respondent No.2-Institution is not a research organization like CCRUM, CCRAS, and CCRH. Respondent No.2 herein is a National Institute of Unani Medicine. Hence, there is a difference between the respondent No.2 and CCRUM. Though an oral prayer has been made by the petitioner which includes grant of promotion as Associate Professor/Professor, as there are no promotional avenues being an isolated post, the petitioner has been granted the benefit of 1st MACP after completion of 10 years of service. The 2nd MACP shall further be granted in her favour in the year 2025.
11. During the course of his submissions, learned counsel for the petitioner has conceded to the fact that the benefit of MACP has been granted to the petitioner. We find that, the petitioner has prayed for multiple reliefs before the Tribunal. On one hand, she sought the benefit of promotion to the post of Associate Professor/Professor,
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WP No.11802/2023at the same time she has also sought the benefit of in situ promotion Scheme. Before us, learned counsel has made extensive submissions for grant of benefit of regular promotion and other connected issues. Having noted the reasoning given by the Tribunal and for our additional reasons in as much as the petitioner is seeking regular promotion, though on isolated post, which does not have promotional avenues, we are of the view that, this Court in exercise of powers under Article 226 of the Constitution of India, cannot give a direction for grant of benefit of regular promotion, that too on the post of Associate Professor/Professor. As, no such avenue can be provided for an isolated post, which pre-supposes, the fact that such post has been created, because there is limited work available to be discharged by one person unlike post with promotional avenues in a defined cadre.
12. In the case of Dr. Ms. O.Z. Hussain -Vs.- Union of India [1990 (Supp) SCC 688], the Supreme Court is concerned with the facts, wherein the petitioner was working as a Group 'A' Scientist in Non-medical
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WP No.11802/2023Wing of the Director General of Health Services and did not had any promotional avenues, though the Scientist Cadre in the Ministries had the same. The plea of the petitioner was that, not providing promotional avenues is discriminatory. The Supreme Court in paragraph No.7 of the said decision, has stated as under:
"7. This Court, has on more than one occasion, pointed out that provision for promotion increases efficiency of the public service while stagnation reduces efficiency and makes the service ineffective. Promotion is thus a normal incidence of service. There too is no justification why while similarly placed officers in other Ministries would have the benefit of promotion, the non-medical 'A' Group scientists in the establishment of Director General of Health Services would be deprived of such advantage. In a welfare State, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenue for this category of officers. It is, therefore, necessary that on the model of rules framed by the Ministry of Science and Technology with such alterations as may be necessary, appropriate rules should be framed within four months from now providing promotional avenue for
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the 'A' category scientists in the non-medical wing of the Directorate. This Writ Petition is allowed and the following directions are issued:
1. Within four months from today, the Ministry of Health and Family Welfare of the Union of India shall frame a set of appropriate rules, inter alia, providing suitable promotional avenue for the 'A' Group scientists in the non-medical wing of the establishment of Director General of Health Services;
2. These 'A' Group scientists shall be entitled to book allowance, higher degree allowance, risk allowance and conveyance allowance at the same rate as is admissible to doctors in the medical wing in the Directorate w.e.f. 1.4.1989;
3. Government shall examine the tenability of the claim of equal pay scales for this category of officers within four months from today.
There shall be no directions for costs. Petition is allowed."
13. Insofar as the judgment relied upon by the counsel for the petitioner in the case of Dr. Ms. O.Z. Hussain (supra) is concerned, the same is clearly distinguishable in as much as in that case, the plea of the petitioner was of discrimination as promotional avenues were provided in the Ministry and
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WP No.11802/2023not in the DGHS. It is not such a case of the petitioners herein. That apart, in the case of Dr. Ms. O.Z. Hussain (supra), the post in question is not an isolated post. That apart, it is not a case where the benefit of MACP was made applicable and the benefit thereof was given to the petitioner-Dr. Ms. O.Z.Hussain. But in the case in hand, the benefit of MACP has been granted, to the petitioner.
14. Insofar as the judgment of the Supreme Court in the case of State of Tripura and Others -Vs.- K.K. Roy [(2004) 9 SCC 65] is concerned, the same shall not help the case of the petitioner herein. Rather, it supports the case of the respondents in as much as the Supreme Court in that case, has directed that the respondent therein be granted two higher Grades, one upon expiry of a period of 12 years from the date of joining of service and other, upon expiry of 24 years thereof. It is precisely a similar benefit which has been given to the petitioner after she has put-in 10 years of service. The next MACP is sought to be given in this year as the petitioner shall be completing 20 years of service.
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WP No.11802/2023It may be stated here that the said judgment recognizes the fact that, if the financial up-gradation is given on timely basis, that would suffice the requirement of lack of promotion avenues. Insofar as the case of Food Corporation of India and Others -Vs.- Parashotam Das Bansal and Others [(2008) 5 SCC 100] is concerned, we have seen that the said judgment shall not be applicable to the issue, which arises for consideration in this petition. Though a reference has been made to the judgment of the Hon'ble Supreme Court in Dr. Ms. O.Z. Hussain's case (supra) and also to the judgment in the case of K.K. Roy (supra), the same was only to answer the plea that the respondents have been stagnating in their post. In fact, the prayer of the respondents therein was for providing promotional avenues including formulating the scheme akin to assured career promotion i.e., ACP. Since the post akin to ACP i.e., MACP has been provided to the petitioners. The said judgment shall answer the issue that the grievance if any of the petitioner for not providing promotional avenues has been met with by granting the
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WP No.11802/2023benefit of MACP, as such, the judgment is clearly distinguished in the case of Prasad Kurien and Others
-Vs.- K.J. Augustin and Others [(2008) 3 SCC 529].
15. Having seen the facts of that case, we are of the view that the said judgment is not applicable to the issue which arises for consideration in this case.
16. In view of our discussion above, the present writ petition filed by the petitioner is devoid of merits and the same is dismissed.
17. In view of the order in the petition, pending application(s), if any, shall stand disposed of.
Sd/-
(V KAMESWAR RAO) JUDGE Sd/-
(T.M.NADAF) JUDGE PA / KGR