Kerala High Court
Dr.Sushama Kumari vs Union Of India on 11 February, 2019
Author: P.V.Asha
Bench: P.V.Asha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
MONDAY ,THE 11TH DAY OF FEBRUARY 2019 / 22ND MAGHA, 1940
WP(C).No. 31879 of 2014-H
PETITIONER/S:
DR.SUSHAMA KUMARI
AGED 53 YEARS
W/O. G.SREEKUMAR, SENIOR SCIENTIST (SCIENTIST C),
BIOTECHNOLOGY DIVISION, RUBBNER RESEARCH INSTITUTE
OF INDIA, RUBBER BOARD, RUBBER BOARD P.O., KOTTAYAM
- 686 009. (RESIDING AT HARICHANDANAM,
KUMARANELLOOR P.O., KOTTAYAM - 686 016.
BY ADV. SRI.T.SANJAY
RESPONDENT/S:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF
INDIA, MINISTRY OF COMMERCE & INDUSTRY, UDYOG
BHAVAN, NEW DELHI - 110 011.
2 THE RUBBER BOARD
REPRESENTED BY ITSSECRETARY, COLLECTORATE P.O.,
KOTTAYAM - 686 002.
3 THE DIRECTOR OF RESEARCH
THE RUBBER RESEARCH INSTITUTE OF INDIA, RUBBER
BOARD, RUBBER BOARD P.O., KOTTAYAM 686 009.
4 DR.JAMES JACOB
DIRECTOR OF RESEARCH, THE RUBBER RESEARCH INSTITUTE
OF INDIA, RUBBER BOARD, RUBBER BOARD P.O., KOTTAYAM
- 686 009.
5 DR.R.KRISHNAKUMAR
SCIENTIST D (PRINCIPAL SCIENTIST), RUBBER RESEARCH
INSTITUTE OF INDIA, RUBBER BOARD, RUBBER BOARD
P.O., KOTTAYAM - 686 009.
6 DR.K.U.THOMAS
SCIENTIST D (PRINCIPAL SCIENTIST), RUBBER RESEARCH
INSTITUTE OF INDIA, RUBBER BOARD, RUBBER BOARD
P.O., KOTTAYAM - 686 009.
7 DR.MOLLY THOMAS
SCIENTIST D (PRINCIPAL SCIENTIST), RUBBER RESEARCH
INSTITUTE OF INDIA, RUBBER BOARD, RUBBER BOARD
P.O., KOTTAYAM - 686 009.
8 DR.S.SREELATHA
SCIENTIST D (PRINCIPAL SCIENTIST), RUBBER RESEARCH
INSTITUTE OF INDIA, RUBBER BOARD, RUBBER BOARD
P.O., KOTTAYAM - 686 009.
9 DR.M.B.MOHAMED SATHIK
SCIENTIST D (PRINCIPAL SCIENTIST), RUBBER RESEARCH
INSTITUTE OF INDIA, RUBBER BOARD, RUBBER BOARD
P.O., KOTTAYAM - 686 009.
10 DR.SHAJI PHILIP
SCIENTIST D (PRINCIPAL SCIENTIST), RUBBER RESEARCH
INSTITUTE OF INDIA, RUBBER BOARD, RUBBER BOARD
P.O., KOTTAYAM - 686 009.
11 DR.R.G.KALA
SCIENTIST D (PRINCIPAL SCIENTIST), RUBBER RESEARCH
INSTITUTE OF INDIA, RUBBER BOARD, RUBBER BOARD
P.O., KOTTAYAM - 686 009.
12 DR.K.KARUNAICHAMY
SCIENTIST D (PRINCIPAL SCIENTIST), RUBBER RESEARCH
INSTITUTE OF INDIA, RUBBER BOARD, RUBBER BOARD
P.O., KOTTAYAM - 686 009.
BY ADVS.
SRI.P.VIJAYAKUMAR, ASSISTANT SOLICITOR GENERAL
SRI.MATHEWS K.UTHUPPACHAN
SRI.V.ABRAHAM MARKOS
SRI.ABRAHAM JOSEPH MARKOS
SRI.BINU MATHEW
SRI.ISAAC THOMAS
ASSISTANT SOLICITOR GENERAL
SRI.NOBY THOMAS CYRIAC
SRI.P.VIJAYAKUMAR
SRI.TERRY V.JAMES
SRI.TOM THOMAS (KAKKUZHIYIL)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
30.01.2019, ALONG WITH WP(C).11458/2018, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
MONDAY ,THE 11TH DAY OF FEBRUARY 2019 / 22ND MAGHA, 1940
WP(C).No. 11458 of 2018
PETITIONER/S:
DR. SUSHAMA KUMARI.S
AGED 56 YEARS, W/O. SREEKUMAR,SCIENTIST C,
BIOTECHNOLOGY DIVISION, RUBBER RESEARCH INSTITUTE
OF INDIA, RUBBER BOARD P.O., KOTTAYAM-686 009,
(RESIDING AT ''HARICHANDRAM'', KUMARANELLOR P.O.,
KOTTAYAM-686 016).
BY ADV. SRI.R.REJI KUMAR
ADV. SRI.T.SANJAY
RESPONDENT/S:
1 THE CHAIRMAN AND EXECUTIVE DIRECTOR,
THE RUBBER BOARD, KEEZHUKUNNU, COLLECTORATE P.O.,
KOTTAYAM-686 002.
2 THE RUBBER BOARD
REPRESENTED BY ITS SECRETARY,KEEZHUKUNNU,
COLLECTORATE P.O.,KOTTAYAM-686 002.
BY ADVS.
SRI. V. ABRAHAM MARKOS, SC, RUBBER BOARD
SRI.V.ABRAHAM MARKOS
SRI.ABRAHAM JOSEPH MARKOS
SRI. ABRAHAM JOSEPH MARKOS SC RUBBER BOARD
SRI.HARAN THOMAS GEORGE
SRI.ISAAC THOMAS
SRI. ISAAC THOMAS SC RUBBER BOARD
SRI. V. ABRAHAM MARKOS SC RUBBER BOARD
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
30.01.2019, ALONG WITH WP(C).31879/2014, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
P.V.ASHA, J.
----------------------------
W.P.(C) Nos.31879 of 2014 &
11458 of 2018
----------------------------
Dated this the 11th day of February, 2019
JUDGMENT
W.P.(c) No.31879 of 2014
The petitioner who was working as Scientist-C in the Rubber Board filed this writ writ petition, aggrieved by the denial of promotion under the Flexible Complementary Scheme (FCS) seeking the following reliefs:
1. Declare that Ext.P7-Rule framed by the 2nd respondent Board is without any authority, power or jurisdiction and the same ultravires Exts.P2 and P3 schemes of the Central Government and accordingly unenforceable.
2. Call for records more especially the selection proceedings, ACRs and Form No.1 in respect of private respondents and quash the entire proceedings inconcequence of the operation of Ext.P7-Rule such as Exts.P5 dated 11.7.14, P6 dated 11.7.14 and P8 dated 8.8.14 to the extend it relates the respondents 5 to 12 by issue of a writ of certiorari or appropriate writ or orders or directions.
3. Direct the 2nd respondent Board to codncut fresh unbiased assessment in respect of the private respondents 5 to 12 and the petitioner for promotion to the psot of Scientist D in PB3 with grade pay of Rs.7600/- striclty in accordance with Exts.P2 and P3-Schemes from the due date and release all the consequential monetary and other benefits with retrospective effect by issue of a writ of mandamus or appropriate writ or orders or directions.
4. Call for records and quash Ext.P9-circular dated 19.11.2014 by issue of a writ of certiorari or appropriate writ or orders or directions.
5. Award cost towards to this petition.
W.P.(C) Nos.31879/14&11458/18 :5:
2. The grievance of the petitioner is on the denial of promotion of Scientist C to D and the method adopted by the respondents contrary to the provisions contained in Ext.P2 Scheme and the Office Memorandums issued by the Department of Personnel and Training, Government of India. Ext.P2 Scheme was extended to the Rubber Board as per Ext.P1 letter No.27/16/1999- Plant(B) of the Ministry of Commerce & Industry on 06.07.2006, up to the level of Scientist-C (Rs.10,000- 15,200) with effect from 06.07.2006, the date of that order.
3. The case of the petitioner is that as per Ext.P2 FCS, a Scientist-C would be eligible for consideration for promotion as Scientist-D in PB(3) with grade pay of Rs.7,600/- on completion of a minimum period of four years' residency period. Petitioner became a Scientist-C (Senior Scientist) on direct recruitment in the Rubber Board on 28.06.2006. Though promotions were made on the basis of assessment made on 11.07.2014, in which petitioner was found unfit, a series of audit objections were raised as against those W.P.(C) Nos.31879/14&11458/18 :6: promotions. Apart from that the Government of India has in Ext.R2(f) letter informed the Rubber Board that the question of FCS promotion of Scientist-C to the next scale equivalent to that of Scientist-D does not arise in Rubber Board as insitu promotion under FCS was agreed to only upto the level of Scientist-C. The Rubber Board has issued Ext.R2(g) letter cancelling the promotions granted under FCS to Scientist-D.
4. The petitioner has not challenged Ext.R2(f) letter. When FCS promotion is not admissible as per Ext.P1 as clarified in Ext.R2(f), it is unnecessary to go into the claims raised by the petitioner.
5. Hence WP(C) No.31879 of 2014 is dismissed, without prejudice to the right of the petitioner to take up the claim in the event of any modification to Ext.R2(f) or (g) orders.
W.P.(C) No.11458 of 2018
The petitioner claims the benefit under Modified Assured Career Progression (MACP) Scheme on the ground that the second financial upgradation is not granted to her. Petitioner claims that she has got 30 years of W.P.(C) Nos.31879/14&11458/18 :7: service and she got only one grade promotion. Petitioner was initially appointed as Jr.Scientist in the Rubber Board on 20.7.1987. Thereafter she was appointed as Scientist-B by direct recruitment in PB(3) in the grade pay of Rs.5,400/- on 18.03.1992. She claims financial upgradation to the next grade pay of Rs.6,600/- on completion of 12 years of regular service from March 2004 onwards under the ACPS. She was granted upgradation under the ACP Scheme with effect from 29.12.2005. The petitioner claims that she was eligible for the same with effect from 18.03.2004 considering her service on direct recruitment. She was appointed as Scientist-C in PB(3) with the same grade pay pay of Rs.6,600/- on 28.6.2006. She claims that she is entitled to the next financial upgradation in the grade pay of Rs.7,600/- under MACPS with effect from 18.03.2012 on completion of 10 years of service. According to her, she is the only person who is denied the benefit of MACP, which was available to her on completion of 12 years of service. From 19.05.2005 onwards the upgradation is provided under MACPS on W.P.(C) Nos.31879/14&11458/18 :8: completion of 10, 20 and 30 years and therefore financial upgradation is admissible to her on completion of 10 years of service.
2. The respondents have filed counter affidavit objecting the maintainability of the writ petition. According to them, the petitioner who filed WP(C) No.31879/2014 claiming promotion under the FCS cannot be heard to claim MACP also. The only objection raised by the respondents for granting her the benefit of MACPS is the pendency of the writ petition claiming FCS. Even though the pendency of the writ petition did not stand in the way of granting the benefit of MACPs, I find that petitioner ought to have disclosed in this writ petition about the writ petition filed by her claiming FCS when it was pending before this Court.
3. Now that the other writ petition is disposed of, there cannot be any impediment for the respondents in granting the benefit to the petitioner. W.P.(C) Nos.31879/14&11458/18 :9:
4. Therefore, there shall be a direction to the respondents to consider the case of the petitioner for grant of financial upgradation under MACPS in tune with Ext.P2 Scheme within a period of one month from the date of receipt of a copy of the judgment and to pass orders thereon and to grant her the consequential benefits with effect from the date on which she became eligible, within a further period of one month.
Sd/-
P.V.ASHA JUDGE rkc W.P.(C) Nos.31879/14&11458/18 :10: APPENDIX OF WP(C) 31879/2014 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 P1 -A TRUE COPY OF ORDER NO .27/16/1999 PLANT (B) DT. 06.7.06 OF THE 1ST RESPONDENT.
EXHIBIT P2 P2 - A TRUE COPY OF OFFICE MEMORANDUM NO. 2/41/97/PIC DT. 09.11.98 OF THE 1ST RESPONDENT.
EXHIBIT P3 P3 - A TRUE COPY OF OFFICE MEMORANDUM NO. AB 14017/31/2004 ESTT (RR) DT. 21.11.05 OF THE 1ST RESPONDENT EXHIBIT P4 P4 - A TRUE COPY OF SELF APPRAISAL REPORT OF THE PETITIONER.
EXHIBIT P5 P5 - A TRUE COPY OF PROCEEDINGS DT.
11.7.14 OF THE ASSESSMENT COMMITTEE.
EXHIBIT P6 P6 - A TRUE COPY OF INTERVIEW ASSESSMENT DT. 11.7.14 OF THE ASSESSMENT COMMITTEE.
EXHIBIT P7 P7 - A TRUE COPY OF RULES FOR ASSESSMENT PROMOTION OF SCIENTISTS UNDER FCS AS APPROVED BY THE BOARD IN ITS 156TH MEETING HELD ON 5TH AUGUST 2006.
EXHIBIT P8 P8 - A TRUE COPY OF OFFICE MEMORANDUM NO. 3/25/1(1)/2014/EST DT. 08.8.14 OF THE RUBBER BOARD.
EXHIBIT P9 P9 - A TRUE COPY OF CIRCULAR NO.
3/23/2014/EST DT. 19.11.14 OF RUBBER BOARD.
EXT.P10. TRUE COPY OF OFFICE MEMORANDUM NO.2/42/2011/EST DT.4.3.11 FOR WINNING W.P.(C) Nos.31879/14&11458/18 :11: BEST PAPER AWARD FOR FIRST SCIENTIFIC PAPER EXT.P11 TRUE COPY OF OFFICE MEMORANDUM NO.2/42/2011/EST DT.4.3.11 FOR WINNING BEST PAPER AWARD FOR SECOND SCIENTIFIC PAPER EXT.P12 TRUE COPY OF DOPT OM NO.AB.14017/11/2004-ESTT. (RR) DT.30.7.07 EXT.P13 TRUE COPY OF THE OFFICIAL COMMUNICATION NO.27/17/1991 PLANT (B) DT.9.8.06 OF THE DEPT. OF COMMERCE EXT.P14 TRUE COPY OF OFFICIAL COMMUNICATION NO.ADM/EB.I9R) MACPS/2011-12/5222 DT.23.1.13 OF THE SECRETARY, COFFEE BOARD EXT.P15 TRUE COPY OF THE OFFICIAL COMMUNICATION NO.27/16/1991-PLANT-B (VOL.III) DT.15.3.13 OF THE DEPT OF COMMERCE EXT.P16 TRUE COPIES OF RELEVANT PAGES OF FILE NOTING OF DEPT. OF COMMERCE, GOVT. OF INDIA COLLECTED BY THE ASSOCIATION OF SCIENTISTS UNDER RTI ACT EXT.P17 RELEVANT PAGES OF REPORT OF SIXTH CENTRAL PAY COMMISSION, GOVERNMENT OF INDIA EXT.P18 TRUE COPY OF OM NO.A-12046/6/2000-RECTT DT.27.7.01, DEPT OF SCIENCE&TECHNOLOGY, GOVERNMENT OF INDIA RESPONDENTS' EXHIBITS EXT.R2A TRUE COPY OF PROCEEDINGS DT.13.9.06 ISSUED BY THE CHAIRMAN OF THE 2ND RESPONDENT.
W.P.(C) Nos.31879/14&11458/18 :12: EXT.R2B TRUE COPY OF ORDER DT.29.11.02 ISSUED BY THE DEPUTY SECRETARY TO THE GOVERNMENT OF INDIA.
EXT.R2C TRUE COPY OF OFFICE MEMORANDUM
DT.22.8.11 ISSUED BY THE DEPUTY
SECRETARY OF THE 2ND RESPONDENT
EXT.R2D TRUE COPY OF ORDER NO.985 DT.2.4.14
ISSUED BY THE SECRETARY-IN-CHARGE OF THE 2ND RESPONDENT EXT.R2E TRUE COPY OF ORDER NO.1002 DT.23.6.15 ISSUED BY THE SECRETARY-IN-CHARGE OF THE 2ND RESPONDENT EXT.R2F TRUE COPY OF LETTER DT.17.3.16 ISSUED BY THE UNDER SECRETARY TO THE GOVERNMENT OF INIDA TO TEH CHAIRMAN OF THE 2ND RESPONDENT EXT.R2G TRUE COPY OF OFFICE ORDER NO.1004 DT.8.1.16 ISSUED BY THE SECRETARY IN CHARGE OF THE 2ND RESPONDENT W.P.(C) Nos.31879/14&11458/18 :13: APPENDIX OF WP(C) 11458/2018 PETITIONER'S/S EXHIBITS:
EXT.P1 COPY OF THE DOPT OFFICE, MEMORANDUM NO.35034/1/97/ESTT(1) DATED 09/08/1999.
EXT.P2 COPY OF THE DOPT OFFICE MEMORANDUM NO.35034/3/2008-ESTT(D) DATED 19/05/2009.
EXT.P3 COPY OF THE FAQS ISSUED BY DOPT VIDE REFERENCE NO.AB-14017/35/2011-ESTT(RR) DATED 23/09/2011.
EXT.P4 COPY OF THE RELEVANT PAGES OF DOPT OFFICE MEMORANDUM NO.AB-1401713712008- ESTT(RR) DATED 10/09/2010.
EXT.P5 COPY OF THE DOPT OM NO.35034/3/2008- ESTT(D) DATED 18/02/2015.
EXT.P6 COPY OF THE PETITIONER'S REPRESENTATION DATED 10/06/2017.
EXT.P7 COPY OF THE PETITIONER'S SECOND REPRESENTATION /REMINDER DATED 29/12/2017.
EXT.P8 TRUE COPY OF OM NO.35034/3/200-ESTT(D)
(VL.III) DT.4.7.17 OF DEPT. OF
PERSONNEL&TRAINING, GOVT. OF INDIA EXT.P9 TRUE COPY OF OM NO.3/23(2)/2016/EST DT.16.8.16 OF THE RUBBER BOARD EXT.P10 TRUE COPY OF OM NO.3/23(2)/2016/EST DT.22.11.16 OF THE RUBBER BOARD EXT.P11 TRUE COPY OF OM NO.3/23(2)/2016/EST DT.8.12.16 OF RUBBER BOARD EXT.P12 TRUE COPY OF OM NO.3/23(2)/2016/EST DT.26.12.16 OF THE RUBBER BOARD W.P.(C) Nos.31879/14&11458/18 :14: EXT.P13 TRUE COPY OF OM NO.3/3/2018/CPS DT.28.6.18 OF THE RUBBER BOARD EXT.P14 TRUE COPY OF THE OFFICE ORDER NO.987 DT.5.6.14 OF THE RUBBER BOARD RESPONDENTS' EXHIBITS EXT.R1A TRUE COPY OF THE RECRUITMENT RULES TO THE POST OF DY. DIRECTOR BEFORE AMENDMENT OF 29.12.05 EXT.R1B TRUE COPY OF THE RECRUITMENT RULES TO THE POST OF DY. DIRECTOR AFTER AMENDMENT ON 29.12.05.