Central Administrative Tribunal - Bangalore
Bande Nawaj And Ors vs M/O Environment And Forests on 11 July, 2024
1 OA 307/2022/CAT/BANGALORE BENCH
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00307/2022
ORDER RESERVED : 11.06.2024
DATE OF ORDER : 11.07.2024
HON'BLE MRS. JUSTICE S SUJATHA ...MEMBER(J)
HON'BLE DR. SANJIV KUMAR ...MEMBER(A)
1. Shri Bande Nawaj,
S/o Samidsab aged about 34 years,
Working as MTS (Nursery Attendant),
Office of Institute of Wood Science
And Technology,
Malleswaram,
Bengaluru-560003.
2. Shri Venkateshamurthy V.G.,
S/o Govindaraju V.G.,
Aged about 36 years,
Working as MTS (Nursery Attendant),
Office of Institute of Wood Science
And Technology,
Malleswaram,
Bengaluru-560003.
3. Shri Anilkumar,
S/o Pandappa,
Aged about 37 years,
2 OA 307/2022/CAT/BANGALORE BENCH
Working as MTS (Nursery Attendant),
Office of Institute of Wood Science
And Technology,
Malleswaram,
Bengaluru-560003. ...Applicants
(By Advocate Shri M.Rajakumar)
Vs.
1. The Director General,
Indian Council of Forest Research
And Education,
PO New Forest,
Dehra dun-248006.
2. The Director,
Institute of Wood Science
And Technology,
Malleswaram,
Bengaluru-560003.
3. The Secretary,
Government of India,
Ministry of Environment,
And Forest, Paryavaran Bhavan,
C.G.O. Complex, Lodi Road,
New Delhi -110003. ...Respondents
(By Advocate, Shri Vishnu Bhat for Respondents)
3 OA 307/2022/CAT/BANGALORE BENCH
ORDER
Per: Justice S.Sujatha ...........Member(J)
The applicants have filed this application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"i) Issue writ of certiorari by quashing the impugned OM dated 29.07.2022 vide No.63-19/2020-ICFRE (Representation) and Revised Circular dated 05.08.2022 vide No.1-10/2019-20/IWST/1268 at Annexure A9 and A10 in this application issued by the 1st and 2nd respondents respectively, by superseding the circular dated 14.07.2022 vide No.1-10/2019-20/IWST/1036 at Annexure-A7 and further direct the 2nd respondent to promote the applicants as per promotion given to similarly situated candidates promoted under existing Technical Service Rules 2013.
ii) Issue Writ of Mandamus or any appropriate order or Writ to declare and hold that the applicants are eligible for promotion to Technician under seniority from the date of vacancy arose with all consequential benefits.
4 OA 307/2022/CAT/BANGALORE BENCH ii (a) Set aside the impugned circular dated 11.08.2023 issued by Respondents and same may be treated as nonest.
iii) To issue any other appropriate order or direction as this Hon'ble Tribunal deems fit in the facts and circumstances of the case, in the interest of justice and equity."
2. Facts in brief as narrated by the applicants are that they were initially selected on 09.07.2013 and appointed as Nursery Attendant (MTS) in the office of the 2nd Respondent through direct recruitment and have completed eight years regular service without any complaints. Indian Council of Forestry Research & Education, Technical Service Rules, 2013 ('TSR, 2013' for short) which came into force with effect from 18.12.2013 provides for 33.3% promotion to the post of Technician from MTS cadre. The 2nd Respondent promoted three persons under 33.3% quota as per the seniority in the year 2019 and 2020 conducting DPC. It is the grievance of the applicants that the 2nd Respondent taking a contradictory stand issued notification and fixed the date for conducting competitive examination for filling up three vacant 5 OA 307/2022/CAT/BANGALORE BENCH posts amongst the MTS for the subsequent promotion, the subject matter of this OA. Hence the applicants originally challenged the said circular/notification dated 14.07.2022 issued by the 2nd Respondent. During the pendency of the present OA proceedings, the 2nd Respondent has issued OM dated 29.07.2022 and revised Circular dated 05.08.2022 in supersession of earlier Circular dated 14.07.2022, it was decided to conduct written exam to the officials of Rs.1900/- Grade Pay and Rs.1800/- Grade Pay (MTS/Forest Guard/Driver/LDC). Accordingly, the said OM dated 29.07.2022 and revised Circular dated 05.08.2022 issued by the Respondent No.2 have been assailed in the present OA.
3. Learned Counsel Shri M.Rajakumar representing the applicants submitted that the applicants and previously promoted candidates in the year 2019 and 2020 were selected and appointed in the same selection. The yardstick of seniority applied while giving promotion to the candidates during 2019 and 2020 under the TSR, 2013 has not been applied to the applicants. The 2nd Respondent indeed had constituted a committee for examining the 6 OA 307/2022/CAT/BANGALORE BENCH representations given by the present applicants for promotion from MTS to Technician, the said committee which met on 29.11.2021 held that, earlier promoted candidates and present applicants belong to one MTS batch, earlier three candidates have been promoted from MTS to Technician based on the seniority and as such the said committee has come to the conclusion that the same procedure may be followed for the remaining candidates of the said batch. Further the 2nd Respondent had issued the Circular dated 14.07.2022 ignoring the committee's recommendation as well as the previous promotion made on the basis of seniority. The applicants in their representations sought for a direction to the 2nd Respondent to cancel the written examination, but unfortunately Respondent No.1 has added MTS/Forest Guard/Driver/LDC(Administration) for written examination under 33.3% quota by issuing the revised Circular dated 05.08.2022. The respondents have no competency to issue the OM dated 29.07.2022 and revised Circular dated 05.08.2022 sans the approval from Respondent No.3. TSR, 2013 not being amended, the 2nd Respondent issuing the Circular dated 7 OA 307/2022/CAT/BANGALORE BENCH 05.08.2022 during the pendency of the present OA is unjust and arbitrary. Accordingly seeks for the reliefs claimed.
4. Learned Counsel Shri Vishnu Bhat representing the respondents submitted that as per the TSR, 2013, Technical Service means services under which technical staff of Indian Council of Forestry Research and Education (ICFRE) are covered for their direct recruitments and assessment promotions. The technical services are grouped into three categories consisting of eight posts. The lowest post is 'Technician', which is under Category-I. According to the TSR, 2013, 33.3% promotion quota will be operative only in Category-I at the level of Technician. The promotion to the post of Technician under the TSR, 2013 is to be made on the basis of selection(s). Essential educational qualification required for promotion, by selection, against 33.3% quota are (i) Matriculation + three years of regular service in Rs.1900/- Grade Pay including two years experience in assisting staff of any functional group of technical service/Scientist in technical works or (ii) Matriculation + 5 years regular service in 8 OA 307/2022/CAT/BANGALORE BENCH Rs.1800/- Grade Pay including two years experience in assisting staff of any functional group of technical service/Scientist in technical works. The 2nd Respondent promoted the senior most MTS staff in Rs.1800/- Grade Pay with required educational qualification and experience to the post of Technician during 2019 and 2020 as there were no candidates under Grade Pay of Rs.1900/- who were assisting the staff of any functional group of technical services/Scientist in technical works.
5. Learned Counsel further submitted that promoting staff of MTS only based on seniority may lead to denial of opportunity to eligible employees carrying Grade Pay of Rs.1800/- and Rs.1900/-, more particularly in view of different seniority lists existing for different cadres. The matter being referred to ICFRE HQ for clarification, the fist respondent vide letter dated 05.03.2021 clarified that the Director (2nd Respondent) being the appointing authority for the post of Technician Category-I, should take decision as per extant provision of Rule 7.1. of ICFRE TSR, 2013. Based on the clarification received from the Secretary, ICFRE, 2nd 9 OA 307/2022/CAT/BANGALORE BENCH Respondent framed procedure for promotion to Technician vide office order dated 27.08.2021 and communicated to the first Respondent vide letter dated 30.08.2021. The OM of ICFRE dated 02.09.2021 emphasises that selection through competitive examination on merit basis would facilitate filling up of the post through fittest candidates and some of the institutes i.e., Forest Research Institute (FRI) had organised the LDCE to fill vacant promotional post of Technician. The 2nd Respondent being the appointing authority for the post of Technician Category-I, took a decision for holding the examination for promotion to 33.3% quota from amongst MTS staff, who possess (i) Matriculation + three years of regular service in Rs.1900/- Grade Pay including two years experience in assisting staff of any functional group of technical service/Scientist in technical works or (ii) Matriculation + 5 years regular service in Rs.1800/- Grade Pay including two years experience in assisting staff of any functional group of technical service/Scientist in technical works and issued Circular dated 14.07.2022. Some MTS staff made representations to 1st Respondent through 2nd Respondent to review the matter and 10 OA 307/2022/CAT/BANGALORE BENCH provide necessary guidelines to promote them to the post of Technician. Such representations were sent to the Respondent No.1. It was clarified that the promotion quota is available to all employees in the Grade Pay of Rs.1800/- and Rs.1900/- by selection and not limited to only Multi-Tasking Staff (MTS) by seniority. The selection through competitive examination on merit basis was found to be more feasible to select the eligible candidates from different cadres with different seniority list. Accordingly a revised Circular dated 05.08.2022 was issued by the 2nd Respondent to provide an opportunity to all the eligible candidates with Grade Pay of Rs.1800/- and Rs.1900/- for promotion to the post of Technician under promotion quota. Thus justifying the action of the respondents, learned counsel sought for dismissal of the OA.
6. We have carefully considered the submissions of the learned Counsel for the parties and perused the material on record.
7. The points that arises for our consideration are:
1. Whether the OM dated 29.07.2022 and the revised circular dated 05.08.2022 issued by Respondent No.2 for conducting 11 OA 307/2022/CAT/BANGALORE BENCH LDCE for the officials of the Grade Pay of Rs.1800/- and Rs.1900/- namely, MTS/Forest Guard/Driver/LDC eligible for promotion to the post of Technician (Field/Lab Research), who have two years experience in Technical work as assistant to a Scientist or Technical Officer as per Rule 7.1 of ICFRE TSR-2013 is justifiable?
2. Whether the applicants are eligible for promotion to the post of Technician Category-I on seniority basis as per the recommendations of the representation committee dated 30.11.2021 (Annexure A5)?
8. Re: Point No.1 : It is true that the applicants and the candidates who were promoted during 2019 and 2020 were selected under a common list dated 09.07.2013 (Annexure A1), amongst them, Shri M.Prashanth, Ms.M.Mamatha and Shri B.M.Chandrasen, have been promoted from MTS to Technician based on the seniority. The applicants herein are claiming their promotion on the same yardstick. The defence of the respondents that while promoting the candidates during 2019 and 2020, no candidates 12 OA 307/2022/CAT/BANGALORE BENCH under the Grade Pay of Rs.1900 were coming under the zone of consideration for the post of Technician Category-I has some significance. Having regard to the candidates coming under zone of consideration being in one cadre of MTS, it was thought fit to make the selection based on seniority. The selection of the candidates during 2019 and 2020 is not under challenge but the applicants are claiming to apply the same yardstick for selection on seniority basis instead of going for competitive examination for the subsequent promotion as well. This relief would have been considered if the candidates coming under the zone of consideration are of the same cadre, but it is not the situation prevailing at this point of time.
9. It is apt to refer to Rule 7.1 of TSR 2013 and the same is quoted hereunder for ready reference:
"7.1 In accordance with Technical service rules, the 33.3% promotion quota will be operative only in Category-I at the level of Technician. It is clarified that promotions to the posts of Technician under the Technical service rules are to be made on the basis of selection(s). Essential educational qualification required for promotion (by 13 OA 307/2022/CAT/BANGALORE BENCH selection) against 33.3% quota will be (i) Matriculation + 3 years regular service in 1900/- grade pay including two years experience in assisting staff of any functional group of technical services/Scientist in technical works or (ii) Matriculation + 5 years regular service in 1800/- grade pay including two years experience in assisting staff of any functional group of technical services/Scientist in technical works."
10. In terms of this rule, the promotion to the post of Technician has to be made on the basis of selection(s). The feeder cadre for this promotion comes from two categories (1) Matriculation + three years regular service in Rs.1900/- Grade Pay and (2) Matriculation + five years regular service in Rs.1800/- Grade pay. Two years experience in assisting staff of any functional group of technical service/Scientist in technical works is necessary for both the categories. In the context of different cadres coming under the zone of consideration, each cadre having a separate seniority list, it would not be feasible to promote the candidates on the basis of seniority. Hence Respondent No.2 14 OA 307/2022/CAT/BANGALORE BENCH proceeded to conduct the competitive examination for the candidates coming under the different cadre for selection.
11. It is apparent that originally this OA was filed by the applicants challenging the impugned Circular dated 14.07.2022 whereby the Respondent No.2 had decided to conduct written examination for the eligible seven candidates mentioned therein, who were all coming under MTS category. On the clarification sought as to whether the vacant post be filled through LDCE or through seniority and which post from MTS/Forest Guard/Driver/LDCE are eligible for promotion to the post of Technician Category-I, the matter was examined by the competent authority and it has been decided that the Director of the Institute being the appointing authority for the post of Technician Category-I and the decision in this matter be taken at their level as per extant provision of Rule 7.1 of ICFRE-TSR 2013. With regard to eligibility of MTS/Forest Guard/Driver/LDC is concerned, it is stated that as per Rule 7.1 of ICFRE-TSR 2013, only those officials of Grade Pay of Rs.1800/- and Rs.1900/- are eligible for promotion 15 OA 307/2022/CAT/BANGALORE BENCH to the post of Technician (Field/Lab Research), who have two years experience in technical work as an assistant to a Scientist or technical officers. It has been further held that it shall not be out of context to mention that the selection through competitive examination or merit basis would facilitate filling up of the post by fittest candidates. Subsequent to the issuance of OM dated 29.07.2022, a revised Circular dated 05.08.2022 was issued by the Respondent No.2 in supersession of the Circular dated 14.07.2022, whereby it has been decided to conduct written examination for officials of Rs.1900/- Grade Pay and Rs.1800/- Grade Pay and thereby the date, time and venue of the written exam has been fixed. Subsequent to the amendment of OA, the challenge now relates to the OM dated 29.07.2022 and the revised Circular dated 05.08.2022 (Annexure A9 and Annexure A10 respectively).
12. It is trite that the promotion to Technician Category-I has to be made in terms of Rule 7.1 of ICFRE TSR 2013. In order to interpret the word 'selection', learned Counsel for the applicant has placed reliance on the OM dated 08.02.2002 issued by the DOPT 16 OA 307/2022/CAT/BANGALORE BENCH regarding the procedure to be observed by the Departmental Promotion Committees and thus argued that as per Clause-3.2 of the revised guidelines issued under the said OM dated 08.02.2002, the DPC shall determine the merit of those being assessed for promotion with reference to the prescribed bench-mark and accordingly grade the officers as 'fit' or 'unfit' only. Only those who are graded 'fit' by the DPC (i.e., who meet the prescribed bench-mark) shall be included and arranged in the select panel in order of their inter-se seniority in the feeder grade. Those officers who are graded 'unfit' (in terms of the prescribed bench-mark) by the DPC shall not be included in the select panel. The bench-mark for promotion prescribed in Clause 3.2. would certainly be applicable provided the select panel can be arranged as per the inter-se seniority in the feeder grade. This OM has been issued so that immediate steps are taken to amend the Service Rules/Recruitment Rules of various services/posts/grades so as to appropriately incorporate the mode of promotion as 'selection' ( in accordance with the said instructions) in place of 'selection by merit' and 'selection-cum-seniority (as was prescribed by the O.M. 17 OA 307/2022/CAT/BANGALORE BENCH dated March 27, 1997) as the case may be. It appears, accordingly in TSR 2013, mode of promotion is shown as selection(s). Depending on the bench-mark, DPCs can assess the candidates as fit or unfit, but the next question would be how to select the inter-se seniority of the applicants to arrange them in select panel. There would not have been any dispute if there was only one category in the feeder grade but this is not so, in the present set of facts. In such circumstances, conducting LDCE for promotion to Technician Category-I from amongst the candidates possessing the eligibility i.e., the officials of Rs.1900/- Grade Pay and Rs.1800/- Grade Pay cannot be faulted with.
13. Re: Point No.2: ICFRE TSR 2013 has been framed exercising the powers conferred under the proviso to Rule 38 (read with sub section (b) (iv) of Section 22 and sub-section (ii) in (iii) of section 24 of the Rules of the Indian Council of Forestry Research and Education Society and in supersession of all the existing recruitment rules in so far as they relate the Technical posts in the Indian Council of Forestry Research and Education (ICFRE) , 18 OA 307/2022/CAT/BANGALORE BENCH Ministry of Environment, Forest & Climate Change, Government of India has approved the said Technical Service Rules. These Rules have come into force with effect from 18.12.2013. Rule 7.2 of TSR 2013 reads thus:
"7.2 Promotions will be made on the recommendation of the Selection Committee (s) constituted as per the Revised Composition of Selection committees/Departmental Promotion Committees for various posts under different categories under the Council. The details of Selection Committees/Departmental Promotion Committees for promotion, completion of probationary period and confirmation are given in Appendix V."
14. Appendix V reads thus:
SELECTION/DEPARTMENTAL PROMOTION COMMITTESS FOR VARIOUS POSTS UNDER DIFFERENT CATEGORIES OF TECHNICAL SERVICES OF ICFRE.
1. Direct recruitment ......................................
2.(a) Promotion (for filling up 33%) of vacancies of Technician of category-I. 19 OA 307/2022/CAT/BANGALORE BENCH
(b) Absorption/probationary period/efficiency bar confirmation etc. for posts from technician to Technical Officer of Cat.I & II."
ICFRE Research Institutes 1. Director of the Chairman Concerned Institute
2. Director/Deputy Member Secretary/under Secretary Under Secretary (Forest Estt.) MoEF&CC or Representative or MoEF& CC from its Organizations.
3. Head of Division of Member Concerned Institute.
4. In case of recruitment Member to (ten) or more posts and Lady candidates are expec-
ted for the service/post, one lady member of appropriate status.
5. Group"A" Officer Member from any office of Govt.
of India.
6. Under/Secretary/ Member Officer of equivalent Grade of concerned Institute.
15. This Appendix V 2(a) deals with the constitution of Selection/Departmental Promotion Committee for promotion of filling up of 33% of vacancies of Technician Category-I. The 20 OA 307/2022/CAT/BANGALORE BENCH description of selection/ Departmental Promotion Committees are mentioned. The said committee consists of Chairman and five members. This Rule 7.2 Appendix-V-2(a) would not come to the assistance of the applicants to substantiate their arguments that the recommendations made by the representation committee has a binding nature under Rule 7.2.
16. Annexure A5, proceedings of the meeting of the committee constituted to examine the representations received from some of the MTS staff for promotion from MTS to LDC/Technician, cannot be considered as the recommendations made by the selection committee constituted as per the revised composition of Selection Committees/Departmental Promotion Committees as prescribed under Rule 7.2 of TSR 2013. It is apparent that Annexure A5 is the recommendation made by the Committee of three members namely, Chairman and two Members, who have examined the representations submitted by the applicants and decided that the procedure followed for the promotion of Smt.Mamatha M., Shri B.M.Chandrasena and Shri M.Prashanth 21 OA 307/2022/CAT/BANGALORE BENCH has to be followed for promotion of MTS to Technician based on the seniority. This observation/decision of the representation committee cannot be construed as the recommendations made under Rule 7.2. Strong reliance has been placed on Annexure A5 by the learned Counsel for the applicants to contend that the same has to be considered and followed by the 2nd Respondent. As observed earlier, at the time of promotion of the candidates during 2019 and 2020, no candidates of Rs.1900/- Grade Pay were available. Now while considering for promotion to the post of Technician-I, the candidates under Rs.1800/- Grade Pay and Rs.1900/- Grade Pay being available, it makes difference. Blindly the mode of selection adopted in the previous years cannot be followed ignoring the Recruitment Rules. Statutory Rules prevail over the decision of the representation committee.
17. It is pertinent to note that an affidavit dated 25.09.2023 has been filed on behalf of the respondents. It is submitted that in the promotion quota of 33.3% out of six posts, four employees were already working and two posts were vacant. The appointing 22 OA 307/2022/CAT/BANGALORE BENCH authority has framed the Rules vide order No.108/2021 dated 27.08.2021 for conducting Limited Departmental Competitive Examination (LDCE) amongst the employees working in the Grade Pay of Rs.1800/- and Rs.1900/- as per the instructions of the Secretary, ICFRE letter No.63-19/2020-ICFRE(TSR) dated 05.03.2021. Accordingly, a Circular dated 14.07.2022 was issued by the competent authority informing the exam scheduled to be held on 12.08.2022 amongst the employees working in Rs.1800/- Grade Pay. A revised Circular dated 05.08.2022 was issued informing the exam scheduled to be held on 12.08.2022 amongst the employees working in Rs.1900/- Grade Pay and Rs.1800/- Grade Pay as per the instructions of the Secretary, ICFRE letter dated 29.07.2022.
18. It is further stated that as per the Order No.108/2021, dated 27.08.2021 the minimum qualifying marks for promotion to Technician/LDC post is 40%. In the written examination conducted pursuant to Circular dated 05.08.2022, 12 employees appeared for the examination in forenoon session and 11 employees in the 23 OA 307/2022/CAT/BANGALORE BENCH afternoon session. Only four employees had qualified in the exam, out of four qualified employees in the written exam, only one employee had the experience of two years in assisting staff of any functional group of technical services/Scientists in technical works. The Departmental Selection Committee which was held on 25.01.2023, recommended only one employee having the experience of two years in assisting staff of any functional group of technical services/Scientists in technical works for promotion to the post of a Technician. The appointing authority has promoted Ms.J.Sushmitha, LDC, who is having the educational qualification of M.Sc. (Biotechnology) serving in Rs.1900/- Grade Pay. Out of two posts, one post was vacant due to non-availability of employees having two years experience. The Secretary, ICFRE vide letter dated 13.07.2023 has sanctioned six more posts under Technician Category-I, Level-3. Under 33.3% promotion quota, two more posts fell vacant, exam was conducted on 28.08.2023 for three posts as per the earlier procedure. Out of nine eligible employees only eight employees appeared for the exam in the forenoon session and seven employees appeared in the afternoon session. As per the 24 OA 307/2022/CAT/BANGALORE BENCH directions of this Tribunal, the results were kept in the sealed cover after evaluation.
19. It is pertinent to note that the applicants had approached the Hon'ble High Court of Karnataka in W.P.No.15876/2022 challenging the order dated 14.07.2022 (Annexure A7), OM dated 29.07.2022 (Annexure A9) and revised Circular dated 05.08.2022 (Annexure A10), interalia seeking a direction to the 2nd Respondent to promote the applicants as per promotion given to similarly situated candidates, who are promoted under existing Technical Service Rules, 2013. The said Writ Petition was disposed of by the Hon'ble High Court of Karnataka vide order dated 11.08.2022 observing thus:
"4. In the facts and circumstances of the case, we direct that if petitioners choose to write the ensuing examination, the same shall be subject to the outcome of this writ petition.
5. Learned Senior Advocate for the petitioners submits that nothing further survives in this petition since the main matter is pending before the CAT.
25 OA 307/2022/CAT/BANGALORE BENCH
6. In our view, disposal of the main matter by the CAT is appropriate. Accordingly, we request the CAT to expedite the matter."
20. Further as per the additional Affidavit filed on behalf of the respondents as aforesaid only four employees had qualified in the said examination, out of which only one candidate had the experience of two years in assisting staff of any functional group of technical service/Scientist in technical works. Accordingly, DPC which was held on 25.01.2023 recommended only one employee. The appointing authority has promoted the said employee Ms.J.Sushmitha, LDC. Pursuant to six more posts under the Technician Category-I having been sanctioned, under 33.3% promotion quota two more posts fell vacant. Accordingly, LDCE was conducted on 28.08.2023. The applicants have also participated in the said examination. From the sealed cover opened by the Tribunal, it is found that the applicants are not qualified in the said examination. Be that as it may, we direct the respondents to announce the results of the LDCE conducted on 28.08.2023 for promotion to three posts under Technician 26 OA 307/2022/CAT/BANGALORE BENCH Category-I and shall proceed with the promotion process in accordance with law.
21 . For the reasons aforesaid, OA lacks merit. Resultantly OA stands dismissed. No order as to costs.
(DR.SANJIV KUMAR) (JUSTICE S.SUJATHA)
MEMBER(A) MEMBER(J)
sd.