Central Administrative Tribunal - Ernakulam
Dr. E. Vivekanandan vs Icar And Others) Wherein The Tribunal on 3 October, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH Original Application No. 684 of 2007 Friday, this the 3rd day of October, 2008 C OR AM: HON'BLE DR. K B S RAJAN, JUDICIAL MEMBER HON'BLE MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER Dr. E. Vivekanandan, S/o. E.K. Elayaperumal, Head of the Division/Principal Scientist, Central Marine Fisheries Research Institute (CMFRI), Kochi, Residing at No. 65/1119, Mother Teresa Road, Pachalam, Kochi-682 012 ..... Applicant. (By Advocate Mr. T.C. Govindaswamy) v e r su s 1. The Indian Council of Agricultural Research, Through its Secretary, Krishi Bhavan, New Delhi. 2. The Director, Central Marine Fisheries Research Institute (CMFRI), Kochi : 682 018 3. The Senior Admistrative Officer, Central Marine Fisheries Research Institute (CMFRI), Kochi: 682 018 .... Respondents. (By Advocate Mr. P. Jacob Varghese) The Original Application having been heard on 23.09.08, this Tribunal on 3.10.08 delivered the following: O R D E R
HON'BLE DR. K B S RAJAN, JUDICIAL MEMBER The applicant has challenged the issue of Annexure A-1 order dated 25th October 2007 whereby, the respondents have withdrawn the two advance increments granted to the applicant in 1998, vide order dated 05-01-2006 (Annexure A-4) and rescheduled his pay.
2. Brief facts:- The applicant joined the 2nd respondent Institute as Scientist S1 on 29-12-1976. At that time itself he had at his credit a doctorate degree. He was promoted as Scientist S2 on 01-07-1983 and as Senior Scientist w.e.f. 01-01-1986. Since 27-07-1998 the applicant has been functioning as Principal Scientist after his promotion from the post of Senior Scientist.
3. In the wake of the V Pay Commission recommendations, revised pay scales of the Scientists of ICAR were introduced by order dated 27-02-1999 vide Annexure A-3. The said order provides for an incentive in respect of those holding Ph.D as under:
(i) Four and two advance increments will be admissible to those who hold Ph.D. and M.Phil degrees, respectively at the time of recruitment as Scientists.
(ii) One increment will be admissible to those Scientist, who acquire Ph.D. within 2 years of recruitment;
(iii) A scientist with Ph.D will be eligible for 2 advance increments when he moves into the selection grade as Senior scientist.
(iv) A scientist will be eligible for 2 advance increments as and when he acquires a Ph.D degree in his service career.
4. It appears that there were some clarifications required in regard to implementation of the above incentive scheme and finally, in pursuance of Council Clarificatory letter dated 14th November 2005, the Central Marine Fisheries Research Institute issued order dated 05-01-2006 whereby a number of Scientists at various grades, including the applicant were afforded certain advance increments from various dates. According to the same, the applicant had been granted 2 advance increments @ Rs 450/-w.e.f. 27-07-1998 and the remarks column reflected, "For acquiring Ph.D in his service career" Pay fixation on the basis of the above order was also made, vide Order dated 27-042006 at Annexure A-5. However, by the impugned order dated 25-10-2007, the respondents have chosen to withdraw the advance increments granted to the applicant and hence this O.A. with the following relief(s) claimed by the applicant:
(i) Call for the records leading to the issue of Annexure A-1 and quash the same;
(ii) Declare that the applicant is entitled to be granted the benefit of six additional increments on and with effect from 27-07-1998 as granted in Annexure A-6 on and direct the respondents to grant the same accordingly with effect from 27-07-1998 with all arrears of pay and allowances emanating therefrom.
5. The applicant relies upon a decision dated 08-08-2007 of this Tribunal in OA No. 280/05 (Dr. B. Sasi Kumar vs ICAR and others) wherein the Tribunal held that the applicant therein who was possessing a Ph.D qualification at the time of initial recruitment as Scientist is entitled to the said advance increments.
6. Respondents have contested the O.A. According to them, the incentive of two advance increments was intended to be given only to those Scientists who acquired Ph.D degree during service career on or after 01-01-1996. This was to encourage and grant incentive to the non-Ph.D Scientists who are in service so as to complete Ph.D degree. The incentive for Ph. D/M. Phil degree was introduced w.e.f. 01-01-1986 in the UGC pay package and, therefore, the Scientists who joined service with Ph.D. Degree prior to 01-01-1986 are not eligible for two advance increments for possessing Ph.D degree as it did not exist in their case.
7. Applicant has filed his rejoinder in which he has submitted that as a matter of fact, he is entitled to six increments. He has also cited certain examples, where, in case the applicants advance increments be withdrawn as proposed vide the impugned order, then many a junior would be drawing more pay than the applicant, which would mean infringement of the Fundamental Right of the applicant under Art. 14 and 16 of the Constitution of India.
8. At the time of hearing, counsel for the applicant made available two judgments of the Honble High Court of Kerala and the same are as under:
(a) W.P(C)34046/2007 (filed by the respondents herein against the order dated 08-08-2007 in OA No. 280/05), decided on 26th November, 2007.
(b) WP(C) No. 13969 of 2008-S decided on 26th May, 2008.
9. For reference, the judgments are reproduced as hereunder:
WP (C) 34046/2007:
x x x xx x "2. Respondent joined the first petition/organization as Scientist on 29-04-1985. At the relevant time, he was having Ph.D qualification also, apart from the prescribed qualifications.
He was placed in the senior scale on 29-04-1990. Thereafter he was promoted as senior Scientist on 29/04/1998. Soon thereafter, first petitioner introduced Career Advancement Scheme for grant of promotion to the Scientists working under the organization. One Smt. J. Rema joined the post of Scientist on 14/08/1987. She acquired Ph.D soon thereafter while working under the first petitioner. She was promoted to the post of Senior Scientist under the Carer Advance Scheme on 27/07/1998. As per the new scheme, those who joined the organization with Ph.D. will get four increments. On their promotion to the post of Senior Scientist, they will get further two increments. A Scientist who joined the service without Ph.D. on acquiring the said degree will get two advance increments. He will also get two advance increments on placement in the post of Senior Scientist.
3. The respondent/applicant was not granted the said benefit under the above scheme, copy of which is produced as Annexure A1 in Ext. P 3 O.A., on the ground that he joined organization before the Scheme was introduced and he was promoted also before the introduction of the said scheme on 27/07/98.
4. The Tribunal found that the above interpretation would result in the juniors of the applicant drawing higher pay. So the Tribunal took the view that with effect from 27/07/98, the applicant is also entitled to get the four increments for having Ph.D prior to his appointment and also two increments on being promoted to the post of Senior Scientist. Ext. P7 is the order of the Central Administrative Tribunal. This Writ petition is filed challenging Ext. P.7.
5. According to the petitioners, the Scientists who joined service after 27/07/98 or who were promoted after the said date alone can claim the benefit of advance increment and according to them, the respondent/applicant is not covered by the scheme as he was appointed and promoted prior to the aforesaid date. The Tribunal rejected the contention of the petitioners and upheld the claim of the respondent/applicant.
6. If there is any vagueness in the scheme, we feel the same has to be interpreted without violating the fundamental rights of the applicant enshrined under Articles 14 and 16 of the Constitution of India. If the contentions of the writ petitioners are accepted, the same will result in the junior drawing higher pay than the senior. Therefore, we are inclined to uphold the view adopted by the Tribunal and reliefs granted to the first respondent. Therefore, the Writ petition fails and is dismissed.
W.P. No. 13969 of 2008 S x x x xx x "2. The respondent/applicant claimed two additional increments on the ground that he is a Ph.D holder and also another two increments on his placement in the post of Senior Scientist. Initially, two increments were granted to him on being promoted to the post of Senior Scientist. Later, that was also withdrawn. In the above background, the above said OA was filed. During the pendency of the OA, the ICAR itself came forward and granted two increments to Scientists having Ph.D degree. In other words, the writ petitioners only resisted the claim of the applicant for two increments on being promoted as Senior Scientist. The prayer of the applicant for granting two increments on promotion was allowed by the CAT, relying on its earlier judgment in OA No. 280/05. It is common case that the judgment in OA 280/05 was challenged before this court unsuccessfully and WP(C) No. 34046/07 filed against judgment in that OA was dismissed by this Court in view of the above position, we notice that the challenge raised against Ext. P6 is covered by the judgment of this Court in Writ Petition (C)No. 34046/07. Accordingly, the Writ Petition is dismissed."
9. Counsel for the respondent did not deny the existence of the above said judgments.
10. Arguments were heard and documents perused. The contention by the respondents in the afore said OAs 280/05 and 279/05 is the same as the one raised in this OA. The same is the ground for withdrawal of the advance increments granted to the applicant. The impugned order is dated 25th October, 2007, while the judgments of the High Court are posterior to the same rejecting the identical contentions raised by the respondents before the High Court. Hence, the judgments as above would equally apply to the case of the applicant herein.
11. Consequently, the OA succeeds. Order dated 25th October, 2007 impugned herein is hereby quashed and set aside in so far as the same relates to the applicant. (It is for the respondents to apply this order to others similarly situated, in view of the recommendations of the V Pay Commission vide Para 126.5 of the Report). It is declared that the benefits made available to the respondents in the above two writ petitions (i.e. the applicants in OA No. 280 of 05 and 279/05) would be equally available to the applicant herein. Respondents are, therefore, directed to pass suitable orders in this regard on the same lines as they may issue orders in the above case and afford the applicant the benefits accordingly. This drill shall be complied with, within a period of three months from the date of communication of this order.
12. No order as to costs.
(Dated, the 3rd October, 2008) (K. NOORJEHAN) (Dr. K B S RAJAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER