Kerala High Court
Dr.E.S.Santhosh Kumar vs Kerala State Council For Science
Author: P.V.Asha
Bench: P.V.Asha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
TUESDAY, THE 31ST DAY OF OCTOBER 2017/9TH KARTHIKA, 1939
WP(C).No. 38522 of 2016 (M)
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PETITIONER(S):
------------------------
1. DR.E.S.SANTHOSH KUMAR,
TECHNICAL OFFICER GRADE - II,
PLANT GENETIC RESOURCES DIVISION,
JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND
RESEARCH INSTITUTE, KARIMANCODE P.O.,
PALODE, THIRUVANANTHAPURAM DISTRICT - 695 562.
2. DR.M.SALEEM,
TECHNICAL OFFICER GRADE - III,
PLANT GENETIC RESOURCES DIVISION,
JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND
RESEARCH INSTITUTE, KARIMANCODE P.O.,
PALODE, THIRUVANANTHAPURAM DISTRICT - 695 562.
3. DR.T.SABU,
TECHNICAL OFFICER GRADE - III,
GARDEN MANAGEMENT, EDUCATION,
INFORMATION AND TRAINING DIVISION,
JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND
RESEARCH INSTITUTE, KARIMANCODE P.O.,
PALODE, THIRUVANANTHAPURAM DISTRICT - 695 562.
4. DR.S.AJIKUMARAN NAIR,
TECHNICAL OFFICER GRADE - III,
PHYTOCHEMISTRY AND PHYTOPHARMACOLOGY DIVISION,
JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND
RESEARCH INSTITUTE, KARIMANCODE P.O.,
PALODE, THIRUVANANTHAPURAM DISTRICT - 695 562.
5. DR.M.ABDUL JABBAR,
TECHNICAL OFFICER GRADE - III,
PLANT GENETIC RESOURCES DIVISION,
JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND
RESEARCH INSTITUTE, KARIMANCODE P.O.,
PALODE, THIRUVANANTHAPURAM DISTRICT - 695 562.
6. DR.RAJU ANTONY,
TECHNICAL OFFICER GRADE - III,
GARDEN MANAGEMENT, EDUCATION,
INFORMATION AND TRAINING DIVISION,
JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND
RESEARCH INSTITUTE, KARIMANCODE P.O.,
PALODE, THIRUVANANTHAPURAM DISTRICT - 695 562.
2/-
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WP(C).No. 38522 of 2016 (M)
7. DR.BIJU H.,
TECHNICAL OFFICER GRADE - III,
MICROBIOLOGY DIVISION,
JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND
RESEARCH INSTITUTE, KARIMANCODE P.O.,
PALODE, THIRUVANANTHAPURAM DISTRICT - 695 562.
8. DR.ANIL JOHN J.,
TECHNICAL OFFICER GRADE - III,
PHYTOCHEMISTRY AND PHYTOPHARMACOLOGY DIVISION,
JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND
RESEARCH INSTITUTE, KARIMANCODE P.O.,
PALODE, THIRUVANANTHAPURAM DISTRICT - 695 562.
9. DR.V.S.USHA,
HERBARIUM ASSISTANT GRADE - III,
PLANT SYSTEMATICS AND EVOLUTIONARY
SCIENCE DIVISION, JAWAHARLAL NEHRU TROPICAL
BOTANIC GARDEN AND RESEARCH INSTITUTE,
KARIMANCODE P.O., PALODE,
THIRUVANANTHAPURAM DISTRICT - 695 562.
BY ADVS.SRI.S.P.ARAVINDAKSHAN PILLAY
SMT.N.SANTHA
SRI.K.A.BALAN
SRI.V.VARGHESE
SRI.PETER JOSE CHRISTO
SRI.S.A.ANAND
SMT.K.N.REMYA
SMT.L.ANNAPOORNA
RESPONDENT(S):
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1. KERALA STATE COUNCIL FOR SCIENCE
TECHNOLOGY AND ENVIRONMENT,
SASTHRA BHAVAN, PATTOM P.O.,
THIRUVANANTHAPURAM, PIN - 695 004,
REPRESENTED BY ITS EXECUTIVE VICE PRESIDENT.
2. JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND RESEARCH
INSTITUTE, KARIMCODE P.O., PALODE,
THIRUVANANTHAPURAM DISTRICT, PIN - 695 562,
REPRESENTED BY ITS DIRECTOR.
3. THE DIRECTOR,
JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN
AND RESEARCH INSTITUTE, KARIMANCODE P.O.,
PALODE, THIRUVANANTHAPURAM DISTRICT - 695 562.
R1 BY SRI.GEORGE ZACHARIAH ERUTHICKAL,SC,
R2 & R3 BY ADV. SRI.C.K.KARUNAKARAN, SC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 31-10-2017, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
sts
WP(C).No. 38522 of 2016 (M)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1 TRUE COPY OF THE RELEVANT EXTRACT OF THE MINUTES OF THE 7TH
ANNUAL GENERAL MEETING OF THE STATE COUNCIL OF KSCSTE.
P2 TRUE COPY OF THE RELEVANT EXTRACT OF THE MINUTES OF THE 22ND
MEETING OF THE EXECUTIVE COMMITTEE OF KSCSTE.
P3 TRUE COPY OF THE RELEVANT EXTRACT OF THE REPORT OF THE
COMMITTEE.
P4 TRUE COPY OF THE RELEVANT EXTRACT OF THE 30TH MEETING OF THE
EXECUTIVE COMMITTEE OF KSCSTE.
P5 TRUE COPY OF THE RELEVANT EXTRACT OF THE MINUTES OF THE 36TH
EXECUTIVE COMMITTEE MEETING OF KSCSTE HELD ON 31.3.2014.
P6 TRUE COPY OF THE MINUTES OF THE EXPERT COMMITTEE.
P7 TRUE COPY OF THE JUDGMENT DATED 24.2.2016 IN WPC NO. 8690/2015 -I
OF THIS HON'BLE COURT.
P8 TRUE COPY OF THE COUNCIL (M) ORDER NO. 53/2016, KSCSTE DATED
25.2.2016 OF THE EXECUTIVE VICE PRESIDENT OF KSCSTE.
P9 TRUE COPY OF HE MINUTES OF THE INTERVIEW BOARD.
P10 TRUE COPY OF THE MINUTES OF THE 44TH MEETING OF THE EXECUTIVE
COMMITTEE OF KSCSTE.
P11 TRUE COPY OF THE SUBMISSION DATED 02.3.2016 OF THE 3RD
RESPONDENT.
P12 TRUE COPY OF THE REPRESENTATION DATED 17.6.2016 SUBMITTED BY
THE PETITIONERS EXCEPT THE 2ND AND 7TH PETITIONERS BEFORE THE
HON'BLE CHIEF MINISTER AND PRESIDENT OF THE KSCSTE.
P13 TRUE COPY OF THE MINUTES OF THE 11TH ANNUAL GENERAL MEETING
OF THE STATE COUNCIL OF KSCSTE.
P14 TRUE COPY OF THE COUNCIL(M) ORDER NO.152/09/KSCSTE DATED
17.9.2009 OF THE 1ST RESPONDENT.
P15 TRUE COPY ORDER NO.G49/KFRI/ESTT/93 DATED 19.9.2009 OF THE
DIRECTOR, KFRI.
P16 TRUE COPY OF THE LETTER NO.4087/C3/2012/KSCSTE DATED 15/10/2013
OF THE CONTROLLER OF ADMINISTRATION OF THE 1ST RESPONDENT
COUNCIL.
2/-
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WP(C).No. 38522 of 2016 (M)
P17 TRUE COPY OF THE LETTER NO.80/AIO/2016/JNTBGRI DATED 21/12/2016
OF THE STATE PUBLIC INFORMATION OFFICER AND REGISTRAR OF
JNTBGRI.
P18 TRUE COPY OF THE APPLICATION DATED 14/11/2016 UNDER THE RIGHT
TO INFORMATION ACT,2005.
P19 TRUE COPY OF THE MINUTES OF THE 44TH EXECUTIVE COMMITTEE
MEETING.
P20 TRUE COPY OF G.O.(MS) NO.30/87/STED DATED 06/12/1987.
P21 TRUE COPY OF THE ORDER NO.99/2016/KSCSTE DATED 03/06/2016
P22 TRUE COPY OF THE ORDER NO.TBGRI/DR/681/2004 DATED 06/12/2004 OF
THE DIRECTOR, JNTBGRI.
P22(A) TRUE COPY OF THE LETTER NO.G129/KFRI/ESTS/2006 DATED 23/06/2015
OF THE PUBLIC INFORMATION OFFICER, ALONG WITH ITS
ENCLOSURES.
P22(B) TRUE COPY OF THE APPLICANT SUBMITTED BY ADV.G.UDAYABHANU
UNDER RI ACT,2005.
P22(C) TRUE COPY OF THE COUNCIL (M) ORDER NO.152/09/KSCSTE DATED
17/09/2009 OF THE CONTROLLER OF ADMINISTRATION OF THE 1ST
RESPONDENT COUNCIL.
P23 TRUE COPY OF THE RELEVANT EXTRACT OF G.O(P) NO.82/99/STED
DATED 02/08/1999.
P24 TRUE COPY OF RULE RELATING TO THE PRE-COUNCIL JNTBGRI STAFF
RESPONDENT(S)' EXHIBITS AND ANNEXURES:
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ANNEXURE R2(A) COPY OF THE REQUESTS DATED 26/02/2016
ANNEXURE R2(B) COPY OF THE LETTER NO.96/C2/2016/KSCSTE, DATED 27/02/2016.
ANNEXURE R2(C) COPY OF THE ORDER NO.TBGRI/DR/57/2005, DATED 21/02/2005
/TRUE COPY/
P.S.TO JUDGE
sts
P.V.ASHA, J.
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W.P(C) No.38522 of 2016-M
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Dated this the 31st day of October, 2017
JUDGMENT
This writ petition is filed by Technical Officers of the 2nd respondent aggrieved by the denial of fast track promotion as Scientist-B, despite the assurances made to them since the year 2009, following the pattern adopted in Kerala Forest Research Institute (KFRI).
2. Petitioners 1 to 8 are Technical Officers and the petitioner no.9 is a Herbarial Assistant working under the 2nd respondent. The 2nd respondent- the Jawaharlal Nehru Tropical Botanic Garden and Research Institute ('JNTBGRI' for short) is a Research and Development (R&D) Institute under the 1st respondent Kerala State Council for Science Technology and Environment ('KSCSTE' for short). The 1st respondent is a Society registered under the Travancore Cochin Literary, Scientific and Charitable Societies Act, 1955 in the year 2002. Originally the 2nd respondent was under the control of Department of Science, Technology and W.P(C) No.38522 of 2016-M 2 Environment of the Government of Kerala. It was brought under the 1st respondent, along with 6 other research institutions including Kerala Forest Research Institute (KFRI). The service conditions of all these institutions are governed by KSCSTE Rules with effect from 19.06.2003.
3. The petitioners commenced their services as Technical Officers on various dates between 1995 and 1998. The Technical Officers in KFRI were granted promotion to Scientist-B category based on the decision of the State Council of the 1st respondent. The petitioners' grievance is that even though a decision was taken to give fast track promotion to technical officers of JNTBGRI as given in KFRI long back, that decision is not so far implemented. Petitioners submit that the State Council of the 1st respondent had in its Annual General Meeting (AGM) held on 19.08.2009, as per agenda item no. 07.08, decided that the technical staff under the KFRI who meet the relevant requirements be promoted as Scientist B. Simultaneously, the AGM authorised the executive committee to decide such similar cases arising in other centres. The technical staff of the 2nd respondent requested for fast track promotion as Scientist B, as was being given in KFRI. The Executive Committee of the Council, in its 22nd meeting held on 17.08.2010, (Ext.P2 minutes) as per agenda item no. 22.23, authorised the Executive W.P(C) No.38522 of 2016-M 3 Vice President to examine the process adopted in KFRI in the matter of Fast Track Promotion of Technical staff and to decide the matter accordingly. As per order dated 04.10.2010, the KSCSTE constituted a committee to examine the request and to place proposal on it. The Committee consisting of the then Controller of Administration, a Scientist, who was also a member of JNTBGRI and the then Registrar of KFRI thereafter submitted Ext.P3 report recommending that the Technical Officers of JNTBGRI having the qualification, eligibility and experience for the post of Scientist B who were recruited before 19.06.2003, may be promoted to Scientist B category under fast track promotion scheme envisaged in G.O(P). No.82/99/STE|D dated 2.8.1999, subject to the following conditions:
" i. The Fast Track Promotion Scheme will be restricted to qualified staff prior to the formulation of Council Rules ie., before 19.06.2003.
ii. Qualified and eligible hands will be assessed by constituting an assessment Committee to determine whether they are fit for promotion.
iii. During the assessment, the following conditions on qualification and eligibility will be ensured.
The qualification for the post of Scientist B ie., Ph.D should be from a University approved by UGC.
The Thesis of Ph.D should be in any of the subjects under the area of research of TBGRI.
There should be publications in Peer reviewed Indexed Journals There should be a minimum of 8 papers published in Peer Reviewed Indexed Journals in which 3 should be in international iv. The fast track promotion suggested for Technical Officers as above will be one time for the institution v. Promotion will have only prospective effect."W.P(C) No.38522 of 2016-M 4
4. The executive committee examined the proposal in Ext.P3 and in its 30th meeting held in January, 2013, it was resolved not to approve the proposal in the present form and decided to refer the matter to the committee constituted to look into the modification of KSCSTE Rules for considering opportunity for upward mobility ensuring career improvement for technical staff of KSCSTE and its R&D Centres. It was also decided to call for the details of the fast track promotion allowed in KFRI. The matter was again considered in the meeting of the 36th executive committee held on 31.3.2014 as per item No.36.03. The Director of JNTBGRI, who was specifically invited for presenting the item, informed the executive committee that though the proposal was originally forwarded from her office in December, 2012 and placed in the Executive Committee, she was of the opinion that there was no merit in the proposal and she had requested the Chief Minister to withdraw these items from the agenda. The Executive Director of CWRDM, who presented the matter with respect to CWRDM, recommended an appropriate career advancement scheme for the qualified and experienced technical officers in the CWRDM, suggesting that it would be a one time promotion for the institution and would have prospective effect. It further took note of the fact that the 30th meeting of the Executive W.P(C) No.38522 of 2016-M 5 Committee had rejected the proposal for fast track promotion as per item No.30.07. As per decision no.36.03 of the same meeting, the Executive Committee resolved to create a separate career advancement scheme for technically qualified staff which will not merge with scientists' career advancement scheme at any stage. The EC authorised the Chairman to constitute an expert committee with two Directors of the R&D Institutes under Council and three experts from the CSIR, DST and DBT system. The Committee was to submit a report to the EC after interacting with the representatives of the technical cadre.
5. The six member expert committee under the Chairmanship of Dr. P.G.Latha, Director of JNTBGRI, thereafter examined the matter and found that 9 Technical Officers in JNTBGRI and in CWRDM, were appointed as Technical Staff before the formation of the Council and are having the qualification for the post of Scientists, acquiring higher degrees while in service. It found that CSIR had abandoned direct promotion of technical staff as Scientists long back. Direct promotion as Scientist was given in KFRI once. After interaction with the Technical Officers, who placed their demands and requests, the expert committee, as per its Ext.P6 minutes of its meeting held on 22.01.2016, recommended (1) the pre- W.P(C) No.38522 of 2016-M 6 Council Technical staff who joined with B.Sc and later acquired M.Sc and Ph.D may be given a suitable career advancement scheme, (2) The fast track promotion of Technical officers as Scientist B shall not affect the seniority of existing Scientific staff since it will have only notional effect from the date of appointment, (3) committee recommended implementation of an assessment promotion structure to the technical staff, (4) technical staff be given Scientist B Grade after assessing and notionally promoting them after protecting their salary, without giving retrospective effect, (5) notional promotion shall be through a rigoruous selection procedure by a duly appointed committee of experts chosen at national level, (6) From Scientists B level, they are eligible for further assessment as per KSCSTE rules, (7) when they retire from service, those posts would revert back to technical career, (8) they will carry out Scientific work, along with assigned responsibolities from Head of Divisions, (9) Director should organise their work, if necessary to avoid conflict of interest with Scientists, (10) assessment when done, only from that date Scientist B position would be conferred on them, (11) this should not bring any financial commitment to the Institute as a one time measure and should be done based on the precedence of KFRI and (12) All the decisions taken shall be subject to the W.P(C) No.38522 of 2016-M 7 receipt of the withdrawal of the petition filed before the Honourable High Court against JNTBGRI and its Director.
6. The petitioners, who had filed W.P(c).No.8690/2015 before this Court seeking implementation of the decision of the 1st respondent to effect fast track promotion, accordingly, sought for withdrawal of the writ petition which was allowed as per Ext.P7 judgment dated 24.02.2016 with liberty to move again.
7. Thereafter, as per Ext.P8 order issued on 25.02.2016, a selection committee was constituted with 6 subject experts and 3 other members, for conducting the interview of Technical officers for one time assessment to Scientist B. As seen from Ext.P9 minutes of the meeting held on 29.02.2016, the expert committee after asessment of the officers, unanimously recommended that candidates who have scored 60% or more may be considered for placement in the scientific cadre; as all the candidates were found to have scored more than 60%, all of them were recommended for placement w.e.f 1.3.2016. All the 9 petitioners were accordingly recommended and included in the list in Ext.P9, for placement as Scientists W.P(C) No.38522 of 2016-M 8 B.
8. On 02.03.2016, the Executive Committee held its 44th meeting. Fast track promotion of Technical Staff of the 2nd respondent was included as additional agenda item no.44.20.02. However, the decision in Ext.P10 minutes was to refer the matter to the State Council for their decision, saying that it involved category change causing additional financial burden. The committee also requested to call for the details of the candidates. As the Member Secretary informed the executive committee that a few more candidates had also represented their cases to KSCSTE for similar category change, executive committee recommended that the same procedure shall be applied to all such candidates, if implemented, before placing it to the State Council.
9. Thereafter the 3rd respondent, as per Ext.P11 letter dated 02.03.2016, requested the Chief Minister, who is the President of the KSCSTE to approve grant of provisional promotion of the petitioners. It was pointed out that the executive committee had referred the matter to the General Council and the general council which was to meet after a month may not be able to take any policy decision because of the ensuing general election to the Kerala Legislature Assembly and the petitioners were losing W.P(C) No.38522 of 2016-M 9 their chance to rebuild their research career. She requested for permission to place the matter for ratification by the General Council.
10. As no action was taken thereafter, the petitioners submitted Ext.P12 representation before the Chief Minister on 17.6.2016. Thereupon, the matter was considered in the 11th Annual General Meeting of the 1st respondent and as per Ext.P13 minutes the council decided to constitute another high level committee to study the fast track promotion of technical officers at JNTBGRI and CWRDM. This writ petition was filed at that stage.
11. The petitioners claim that they were recruited before 19.06.2003, i.e, the date on which the rules for KSCSTE were formulated and they are fully qualified for promotion as Scientist B. The petitioners point out that they were already found eligible for fast track promotion and that there is no financial commitment involved in the matter. They claim that they are also similarly situated like the Technical Officers of KFRI who were promoted as Scientist B. The petitioners point out that the decisions are being taken for implementing the fast track promotion right from the year 2010 as can be seen from the minutes of the meeting of the executive committee as well as the annual general meeting from Ext.P2 onwards and it W.P(C) No.38522 of 2016-M 10 was arbitrary to again place the matter before other committees to be constituted; whereas the technical officers of the KFRI got promotion as per Exts.P14 and P15 orders issued on 17.09.2009 and 19.9.2009 of respondents 1 and 2, in implementation of Ext.P1 decision, of the 7th AGM held on 19.08.2009. It is pointed out that when the apex body had already decided to implement the decision, it was unfair and arbitrary to place it before another committee and in between the petitioners were assured the promotion also, based on which they had to withdraw the writ petition.
12. The 2nd respondent has filed statements through the Standing Counsel and the 1st respondent has filed a counter affidavit. It is admitted that all the 9 petitioners are having Ph.D degree and they had joined the respondent well before commencement of KSCSTE Rules and that they have rendered more than 18 to 20 years of regular service. As per the statement of the 2nd respondent, the fast track promotion was implemented in KFRI on the basis of the order issued on 17.09.2009, as per the decision in Ext.P1 of the 7th AGM held on 19.08.2009. While admitting the contentions raised by the petitioners regarding various decisions taken and recommendations made right from 2009, it is stated that 2 more officers i.e, one Dr. M.Navas and Dr. B.Gopakumar, had also submitted requests for W.P(C) No.38522 of 2016-M 11 considering them for fast track promotion in the interview scheduled on 29.2.2016, by way of their representations dated 26.2.2016. It is stated that they had also joined before the commencement of KSCSTE and they are possessing Ph.D degree and are having more than 18 years of regular service and experience and other qualifications. It was also stated that the State Council has again decided to constitute a high level committee to study the fast track promotion and decision of the selection committee can be implemented only after the clearance from the executive committee and approval from the Government.
13. Additional statement was filed by the learned Standing Counsel for the 2nd respondent thereafter stating that the KFRI had implemented the fast track promotion on the basis of Ext.P14 based on the norms specified in Ext.P23 order, in accordance with the conditions specified therein. One of the conditions was that the fast track promotion is applicable only to those employees who have the qualifications prescribed on the date on which the rules came into effect.
14. The 1st respondent KSCSTE, in its counter affidavit stated that the 7 research institutions coming under it are governed by KSCSTE Rules w.e.f 19.06.2003. All the 7 institutions were separate entities with their own W.P(C) No.38522 of 2016-M 12 service rules till the formation of KSCSTE. While admitting that while taking the decision to effect fast track promotion to Technical Officers in KFRI, the 7th AGM of the Council had authorised the Executive Committee of the 1st respondent to decide on such cases existing, in other R& D Centres, the 1st respondent admits that recommendations were placed by the committee constituted by the KSCSTE for fast track promotion of Technical Officers qualified as on 19.06.2003, after asessment by expert committee, on conditions regarding qualification, eligibility etc. specified by them. It is stated that eventhough the proposal to earmark a portion of vacancies of Scientists for promoting qualified and competent technical officers was approved, that decision could not be implemented for want of sufficient number of vacant positions in Scientist B Grade under the 2nd respondent since promotion to Scientist B Grade was already effected in JNTBGRI during 2010 based on directions of this Court. It is stated that the proposal on fast track promotion of the qualified technical officers of JNTBGRI and CWRDM to Scientist B Grade was submitted to the former Chief Minister, the then President of the 1st respondent Council, for orders in file no. 560/C2/2011/KSCSTE; the file was thereafter forwarded to the Finance (PUC) Department, on orders of the Chief Minister; the Finance W.P(C) No.38522 of 2016-M 13 Department, after examining it, retransmitted it to KSCSTE to obtain specific recommendation of executive committee and the matter was again placed before the executive committee as per agenda item 30.07, when it was decided not to approve the proposal in the present form and decided to refer it to the committe constituted to look into the modification of KSCSTE Rules and to call for the details of promotion effected in KFRI. Thereafter, the Executive Director of JNTBGRI forwarded a report on the representation of the employees congress for grant of one time fast track promotion to qualified technical officers, in tune with the recommendation of the committee constituted to study the proposal, to the Chief Minister. The file was circulated to the Chief Minister informing that there is no provision for fast track promotion as such and seeking permission for amending recruitment and promotion rules; the Chief Minister ordered to obtain details regarding the criteria adopted by KFRI to effect fast track promotion to technical officers; thereupon the original file pertaining to promotion of technical staff in KFRI was called for from the Director. But the same was not submitted. It is stated that as per the report of the 2nd respondent there were only 9 Ph.D holders, among the technical officers of JNTBGRI, qualified for the post of Scientist B and the matter was again W.P(C) No.38522 of 2016-M 14 placed before 36th executive committee when it was decided to have an interaction with the representatives of the technical cadre. It is admitted that the six member expert committee constituted as per order dated 20.07.2015 submitted their report after interaction with the officers and thereafter the Executive Committee decided to constitute a selection committee and the selection committee after asessment conducting interview, recommended placement of all the petitioners as Scientist B. It is stated that the 44th executive committee decided to refer the matter to State Council for appropriate decision since it involves category change and it causes additional financial burden. As some more candidates requested for category change, it was decided to consider them also after placing the matter before the State Council. Thereafter, the case of 4 more technical officers came up for consideration and as at present there are 13 technical officers from JNTBGRI and 2 technical officers from CWRDM with Ph.D aspiring to get fast track promotion.
15. It is stated that there is no provision for fast track promotion in the present recruitment and promotion rules pertaining to KSCSTE and its constituent R&D centres. A separate career advancement scheme was proposed to be created in the 36th executive committee for technically W.P(C) No.38522 of 2016-M 15 qualified hands which will not match with Scientist Career Advancement Scheme in any State. It is contended that the proposed scheme for giving fast track promotion to qualified technical officers is likely to affect the absorption of qualified hands as sanctioned post of Scientist B in each institution is limited. The facility if extended, the qualified technical officers coming under KSCSTE and other R&D centres may aspire for getting promotion in the same manner. The State Council in the 11th Annual General Meeting held on 3.10.2016 decided to constitute a high level committee to study the fast track promotion of technical officers and accordingly a committee was constituted as per order dated 17.02.2017 to study the various aspects relating to the issue. According to them, such a decision was taken without any malafide intention.
16. The petitioners have filed a reply affidavit stating that the fast track promotion is a policy decision taken by the apex body of the Council as a onetime measure in favour of the fully qualified technical officers of various R&D institutions including JNTBGRI, who were in regular service as on 19.06.2003. Apart from the petitioners, there are only 2 more technical officers who are eligible for fast track promotion, in tune with the decision taken as per Exts.P1 to P3. The petitioners point out that all of W.P(C) No.38522 of 2016-M 16 them are fully qualified for direct promotion as Scientist B in tune with the recruitment rules, provided there is relaxation in age limit, which is always given to internal candidates for direct recruitment. The expert committee had recommended to give fast track promotion to all the qualified staff in regular service as on 19.06.2003. Producing Ext.P16 letter dated 15.10.2013 of the Controller of Administration of the 1st respondent, the petitioners point out that the 1st respondent has misinterpreted the recommendations of the expert committee. By Ext.P16 letter, the Contoller of Administration had called for the list of Technical Officers who were in service in JNTBGRI as on 19.06.2003 qualified for the post of Scientist B, with Ph.D as on the date of that letter, in order to include the same in the status report to be submitted to the Chief Minister. Producing Exts.P17 and P18 letters received under the Right to Information Act on 21.12.2016, it is pointed out that the fast track promotion is not a cadre promotion as the technical officers are only upgraded to Scientist B grade and that there need not be any vacancy and no new post is to be created for implementation of the fast track promotion. According to them, the assessment promotion to Scientist is not given against vacancies of Scientist and such promotions were never made against existing vacancies. Fast track promotion is not a W.P(C) No.38522 of 2016-M 17 cadre promotion and that it is only an upgradation of the existing posts for which no vacancy is necessary. Producing Ext.P19 minutes of the 44th Executive Committee held on 02.03.2016, petitioners assert that Ext.P6 report for fast track promotion was approved by majority on circulation. According to the petitioners, the promotion due to them are unnecessarily delayed despite the fact that there is no financial commitment involved in the assessment promotion as the petitioners are drawing pay more than that of the Scientist. It is their case that out of the 42 scientists in the JNTBGRI, 28 were appointed by promotion and therefore the fast track promotion, which is not vacancy based, will not stand in the way of the promotion of those who are in the feeder category. It is also pointed out that the persons who joined the JNTBGRI as technical officers subsequent to the coming into force of the rules in 2003, are also being brought in along with the petitioners. The petitioners submit that the technical officers in the KFRI who were granted promotion as Scientist B were having only B.Sc and BLSc/M.Sc at the time of their entry in service and they acquired further qualification while they were in service. It is also pointed out that the 1st respondent itself had taken the decision to give fast track promotion to the technical officers of the KFRI, which was implemented in the year 2002. W.P(C) No.38522 of 2016-M 18
17. According to the JNTBGRI, the petitioners do not have any statutory right or vested right to get promoted. The JNTBGRI is only an autonomous body and except when the petitioners allege any violation of statutory right, this Court cannot issue any writ of mandamus. Relying on para. 2 of the judgment of the Apex Court in K.V.Rajalakshmiah Setty and Anr. v. State of Mysore and Anr. [AIR 1967 SC 993 : 1967 KHC 615] it was argued that the decision to grant fast track promotion cannot be enforced by way of a writ.
18. In the judgment referred to, the Apex Court found that just because a concession was granted to the first batch of 41 persons, the court cannot show any indulgence to grant such concession, as long as there is no violation of the rules. In that case it was observed that the State of Mysore might have shown some indulgence to some of them, but a writ of mandamus cannot be issued directing the Government to show such indulgence in the absence of any transgression of rules.
19. The learned counsel for the respondents submits that the Rules governing the petitioners do not provide for promotion of any technical officers like the petitioners to the category of Scientist. Therefore, there is absolutely no valid ground based on which the reliefs are sought in this writ W.P(C) No.38522 of 2016-M 19 petition. The judgment of the Apex Court in Surya Dev Rai v. Ram Chander Rai and Ors. [(2003) 6 SCC 675] is also relied on with specific reference to paragraph 38. It was argued that there is no circumstance for interference by this Court and any such direction to the respondents to grant fast track promotion would amount to overstepping of jurisdiction by the High Court under Article 226 of the Constitution. It was also argued that the writ petition is premature as the matter is still under consideration.
20. According to the learned counsel for the KSCSTE, the petitioners do not have any right to fast track promotion. It is their case that the petitioners who acquired Ph.D subsequent to the commencement of the Rules in 2003 cannot have any claim for fast track promotion. Only those who were qualified as on 1999 were proposed to be promoted. It is also pointed out that promotions were effected in KFRI before the council had taken over KFRI. Pointing out that the petitioners do not have any vested right for promotion, in the absence of any provision in the Rules for such a promotion, it was argued that the writ petition itself is not maintainable. The judgment of this Court in Bindu K.B v. State of Kerala & Ors. [2014 (4) KHC 772] was relied on in support of the contention that the writ petition is not maintainable against the JNTBGRI. In that judgment it was W.P(C) No.38522 of 2016-M 20 held that it is only against a public body or a body discharging public function, a writ petition under Article 226 can be maintained. In order to bring the issue under the scope of Article 226 it should be either a public body or a private body discharging public function. Even if a public body is discharging a public function, that dispute which arises out of or during the course of discharge of public duty alone would be amenable to the jurisdiction.
21. The learned Counsel for the petitioners submit that the petitioners had to withdraw the writ petition on the basis of the recommendations and assurance in Ext.P6. Even after they were found suitable for appointment by the assessment made by the expert committee, the action of the respondents in delaying the matter further is unfair and unjust. According to the petitioners, there cannot be any question of maintainability as far as the JNTBGRI is concerned.
22. On anxious consideration of the pleadings and contentions on either side, it is seen that the respondents initiated the process of considering the case of the Technical Officers like the petitioners right from 19.08.2009, while deciding on the implementation of fast track promotion in KFRI to the Technical Officers, authorising the Executive Committee of the W.P(C) No.38522 of 2016-M 21 1st respondent to decide on similar cases in other institutions. It is an admitted fact that the fast track promotion is not covered by recruitment rules, even in KFRI, where it was implemented. Petitioners were assured such promotions on the basis of recommendations by various expert committees constituted for the same; they were found qualified and suitable after interview and assessment by selection committee consisting of large number of experts. Recommendations were made for such promotion in Ext.P6, on the basis of the current qualification of the Technical officers who were working in the 2nd respondent as on 19.06.2003. However, the version of the respondents in their statements/counter affidavit is, that the promotion is admissible only to those who acquired Ph.D even before 19.6.2003. This is contrary to the recommendations made by the expert committee. But the documents produced by petitioners as Exts.P17 and P18 would show that those who were benefited by Ext.P1 in KFRI acquired Ph.D only subsequently. According to the petitioners, there is no financial commitment involved, as petitioners are already drawing pay more than that admissible to Scientist B. All of them acquired Ph.D while in service. Unless they are inducted as Scientists B they would not be accepted as guides. It is their case that no separate post or vacancy is necessary in the W.P(C) No.38522 of 2016-M 22 category of Scientists B for fast track promotion as only an upgradation of posts occupied by them alone is necessary. By subjecting them to assessment and interviews coupled with recommendations to grant them fast track promotions, they had been legitimately expecting fast track promotion as done in KFRI. They even to withdraw the writ petitions filed by them in tune with one of the recommendations in Ext.P6. This process went on right from October 2010 and even after they were found eligible in all respects for the promotion by the selection committee it is being delayed by constitution of further committees on the ground of financial commitment, category change, other eligible hands who claimed subsequently, etc. According to the first respondent yet another high level committee was constituted on 17.02.2017 to look into their case. All these committees are seen constituted in the absence of provisions in the recruitment rules itself.
23. The recruitment and assessment promotion of scientific staff is governed by the KSCSTE Scientists/Recruitment and Promotion Rules. As per Rule 9.2, the Managing committee is the appointing authority of Scientist B. Promotion from grade B to G is made by assessment promotion, for which vacancy is not necessary. Part 5 of these Rules deals with the rules for recruitment and assessment of technical staff. W.P(C) No.38522 of 2016-M 23
24. The sequence of events as explained in the writ petition will show that a decision was taken to consider the question of granting fast track promotion to the technical officers in other centres under the first respondent, as per Ext.P1 minutes and even after more than 8 years the process is going on without any final decision, despite the fact that petitioners had to withdraw their writ petitions based on the recommendations and they were subjected to the assessment procedure for induction as Scientists B by the expert committee and they were found suitable, eligible and qualified for such promotion, in the process of selection. The matter is being referred to one or other committees even thereafter. The only conditions for promotion was that the technical staff should have been duly qualified. The qualification prescribed for appointment as Scientist is Ph.D. The expert committees recommended fast track promotion of those who joined the 2nd respondent before 19.06.2003 and having the qualification for the post of Scientist B by upgradation. Petitioners submit that as there is no financial commitment involved in their promotion, there is no justification in delaying the finalisation further.
25. The 1st respondent council was constituted as a registered society under the Travancore Cochin Literary, Scientific and Charitable W.P(C) No.38522 of 2016-M 24 Societies Registration Act, which came into existence on 21.11.2002. The Society is constituted to manage 6 research institutes engaged in scientific research and development. Therefore, it cannot be said that there is no public duty cast upon the JNTBGRI or on the KSCSTE. The petitioners have approached this Court seeing that the decisions taken by the executive council, the expert committees constituted by the respondents, the selection committee which assessed them, etc. are not being implemented. The petitioners who have been working as technical officers were considered for fast track promotion to Scientist B, which is a matter relating to their opportunity to employment, by virtue of their experience, qualification, etc. Therefore, it cannot be said that they cannot approach this Court seeking finalisation or implementation of the decision taken by their employer.
26. The respondents do not dispute the recommendations made by the expert committee or the result of the assessments made by the selection committee which are evident from Exts.P2 to P11. It is only fair and just on the part of the respondents that the appropirate action is taken at the earliest in the matter, especially when no financial commitment is involved in the matter and it is pointed out that only an upgradation is necessary, without requirement of vacancy.
W.P(C) No.38522 of 2016-M 25
In the above circumstances, I deem it appropriate to direct the respondents to see that a final decision is taken on the recommendation made in Ext.P6 based on the findings in Ext.P9 on the question of fast track promotion of Technical Officers as Scientists B, within a period of two months from the date of receipt of a copy of the judgment, having regard to Ext.P1 decision.
With the above directions, the writ petition is disposed of.
Sd/-
(P.V.ASHA, JUDGE) rtr/