Central Administrative Tribunal - Delhi
Kamini Kanta Das vs New Delhi Municipal Council on 23 November, 2009
Central Administrative Tribunal
Principal Bench, New Delhi.
TA No. 956/2009
New Delhi this the 23rd day of November, 2009.
Honble Sh. N.D. Dayal, Member(A)
Honble Dr. Dharam Paul Sharma, Member(J)
Kamini Kanta Das,
Bacteriologist,
Public Health Laboratory,
Water Supply Division,
Amrit Bhavan,
NDMC Chankyapuri,
New Delhi-21. . Applicant
(through Sh. Pawan Kumar, Advocate)
Versus
1. New Delhi Municipal Council
through its Chairman,
Palika Kendra,
Parliament Street,
New Delhi-1.
2. Secretary,
NDMC, Palika Kendra,
Parliament Street,
New Delhi-1.
3. Chief Engineer(Civil-I),
Civil Engineering Department,
NDMC, Palika Kendra,
Parliament Street,
New Delhi-1.
4. Assistant Engineer-V,
Water Supply Division,
Room No. 236-B,
Shahid Bhagat Singh Place,
New Delhi-1. . Respondents
(through Sh. Paras Chaudhary, Advocate)
ORDER (ORAL)
Mr. N.D. Dayal, Member(A) The applicant had filed this case before the Honble High Court of Delhi as Writ Petition No. 967/2003, which has been transferred to the Tribunal by the orders dated 16.03.2009 of the Court in terms of Notification No. S.O. 2580(E) dated 01.12.2008, under sub-section (3) of Section 14 of the Administrative Tribunals Act, 1985.
2. The applicant herein is seeking the following reliefs:-
(i) Direct the Respondents to frame the rules (as provided in M.C.D) to provide proper and better promotional avenues to the Petitioner, and/or
(ii) Direct the Respondents to consider the case of the Petitioner for further promotions in accordance with the appropriate framed rules, and/or
(iii) Pass any other writ/order/orders as this Honble Court may deem fit and proper in the facts and circumstances of the case.
3. It has been submitted that the applicant was given offer of appointment dated 01.06.1987 for the post of Bacteriologist after his selection. This post was in the pay scale of Rs. 425-700/-. He was given a consolidated salary of Rs. 1807/-. He joined the service on 03.07.1987. While this appointment was ad hoc he was subsequently regularized from the date of joining by Office Order dated 18.11.1987.
4. According to the applicant he was given independent charge of the department of Bacteriology and he was engaged in supervision of collection of samples, testing and interpretation of the Bacteriological reports. He also had the onerous responsibility of collecting water samples, testing and interpreting the Bacteriological examination of drinking water in the whole of New Delhi area including that supplied to VIP areas. Thus he being the only Bacteriologist his contribution was invariably full and final whereas in the Municipal Corporation of Delhi (MCD) the report of Bacteriological examination is tested and interpreted by experts at various levels. Further, since he is the only Bacteriologist he is compelled to work in the Laboratory in two shifts and has to discharge the function of Assistant Bacteriologist, Bacteriologist, Assistant Water Analyst and Chief Water Analyst.
5. The applicant has brought to notice that he is a post graduate in Science with specialization in Water and Sewage Analysis with experience of more than 15 years in the field of Bacteriological examination of water. Yet, despite such a position of the applicant he gets a lower pay scale even in comparison to Assistant Bacteriologist (Rs.1400-2600) of MCD in which the Bacteriologist gets the pay scale of Rs. 1600-2900/- which is higher than the applicants pay scale (Rs.1400-2300). This has been illustrated with a comparative chart of pay scales at Annexure P-4. Further, in comparison to MCD the applicant states that he has very poor promotional prospects even though the NDMC and MCD are parallel, local bodies discharging identical functions with similar objectives. In fact, the corresponding officers in MCD enjoy much better promotional avenues. The Assistant Bacteriologist (Rs.1400 2600) in MCD is promoted as Bacteriologist (Rs.1640-2900) and then Assistant Water Analyst (Rs.2000-3500) and thereafter to the post of Chief Water Analyst (Rs.3000-5000). And yet, the work and responsibility that the applicant has to shoulder is stated to be not only time consuming but involving greater risk to life as the culture containing the bacteria has to be destroyed otherwise it could have serious consequences.
6. In this application the applicant, therefore, expresses the grievance that despite his excellent record he has not been granted even a single promotion during the entire 15 years of service with NDMC. He submits that the Honble Supreme Court has frequently appreciated the need for promotion and its importance in increasing efficiency and reducing stagnation which is for the benefit of the organization. There is a fundamental right to get promotion and his specialization has brought no appreciation. The applicant says that it is absurd to have Recruitment Rules (RRs) in NDMC for promotion from Bacteriologist (Rs.1400 2300) to the post of Chemist (Rs.1640-2900). There are no proper rules for promotion to higher posts like in MCD right upto Chief Water Analyst. ACWP No. 5439 of 1999 is stated to have also been filed before the Honble High Court for equal pay with Bacteriologist of MCD and quashing of RR for promotion to the post of Chemist, and is pending disposal.
7. The respondents by their counter reply submit that the relief claimed in Writ Petition No. 5439/99 is substantially the same as in the present application and therefore the latter is not maintainable. By presenting an illustrative chart the respondents clarify that in NDMC the posts in Water Quality Monitoring Unit under Public Health are in a certain hierarchy from Lab Attendant to Chemist and there is only one post of Bacteriologist in the revised pay scale of Rs.4500-7000/- beyond which there is only one post of Chemist in the pay scale of Rs. 5500-9000/-. Further, a reference is made to the RRs which contain the essential qualifications for Bacteriologist in both NDMC and MCD to highlight that they are quite different and incomparable. It is contended that when the applicant accepted appointment as Bacteriologist in NDMC he was well aware that promotion would be to the post of Chemist and now after so many years he cannot challenge the relevant RRs. The nature of work is significantly different between NDMC and MCD particularly in that water to be examined by Delhi Jal Board/MCD is from the river whereas the NDMC gets water which has already been treated by Delhi Jal Board and only distributed in NDMC areas. Besides, the NDMC area is far less than the MCD area and the test reports of samples collected from the two areas also show the difference in the nature of work.
8. The respondents say that it is wrong for the applicant to complain about his future prospects because on completion of 12 years of service he was given First Assured Career Promotion (ACP) in the pay scale of Rs. 5500-9000/- from 09.08.1999 as evident from order at Annexure R-1. This is the scale admissible for the post of Chemist which is the next higher post in hierarchy. This fact has been concealed by the applicant. The Financial upgradation under the ACP Scheme may be to a lower scale in most of those cases where the next higher post is not available in the hierarchy for promotion. It is submitted that the RRs for promotion of Bacteriologist to the post of Chemist are reasonable and fair and the NDMC cannot be compared with MCD and expected to have identical Rules. Since the two organizations are governed by different Acts and their mandate being not identical, it is not reasonable to draw a comparison in respect of the RRs, pay scales and promotional avenues for individual posts.
9. It is further argued that since NDMC does not have any department of Bacteriology, the applicant could not have been made a head of any such department. The Bacteriologist works under the supervision of Chemist, who is the Laboratory Incharge for interpretation, checking and onward submission of the water samples which are tested with the help of Laboratory staff and Public Health Engineers. The water samples are collected on the direction of the senior officers and not at the sole discretion of the Bacteriologist. The unit is under control of an Epidemiologist and headed by an MBBS doctor.
10. The task which is done by a Bacteriologist in NDMC is performed by Assistant Bacteriologist in MCD. It is wrong for the applicant to claim that he has to discharge the functions of various other officers such as Assistant Water Analyst/Chief Water Analyst etc. because the water received has not only been treated by Delhi Jal Board but it has already passed through strict quality control measures and standards as a result of which the NDMC does not require the same man power as is required by MCD. It is contended that the applicant had no previous experience or background of Bacteriologist and he was a B.Sc. with Physics, Chemistry and Maths. The Recruitment Rules for promotion of Bacteriologist in NDMC to the post of Chemist have been validly approved and the relief sought by the applicant is not tenable.
11. We have heard the counsel for both sides and perused the pleadings. No rejoinder has been filed by the applicant to the counter affidavit of the respondents. We notice from the order-sheet that the Honble High Court on 5.2.2003 had observed that the present petition should be listed along with Writ Petition No.5439/99 since the challenge in the latter was to the existing Rules of promotion whereas the present application was for framing of new Rules. It has been stated at the Bar that Wit Petition No.5439/99 has since been dismissed for default by the Honble High Court and the applicant has no intention of taking any steps to seek restoration of the same.
12. In this petition, the applicant is mainly seeking re-framing of the RRs on the lines of MCD to provide better promotional avenues. The RRs enclosed with the pleadings show the following educational and other qualifications for Bacteriologist both in NDMC and MCD as well as qualifications for Assistant Bacteriologist in MCD and Chemist in NDMC:
Designation NDMC MCD
Of post
Asstt. Bacteriologist - A) i) Masters Degree in Bio-
Chemistry/Microbiology/
Bacteriology of Recognized University or
equivalent.
ii) Some experience in
Bacteriology examination of water
OR
i ) Degree in Science with
Chemistry/Biology/Microbiology/Bacteriology of a
recognized University of equivalent.
ii) 5 years experience
in Bacteriological
examination of water.
Bacteriologist i) B.Sc.(Science Graduates A. i) Masters Degree in
with Chemistry/Bio-Chemistry/ Bio-Chemistry Microbiology /
Biology/Micro Biology/ Bacteriology of
Bacteriologist from a recognized University or
Recognized university equivalent.
or equivalent.
ii) Experience 3 years in ii)Two years experience
Bacteriological examination in Bacteriology
of water. examinationof water.
Or
B. i) Degriee in Science with Chemistry/Biology/
Microbiology/ Bacteriology
of a recognized University of equivalent.
ii)5 years experience in Bacteriological
examination of water.
Chemist i) Masters Degree in Chemistry -
from a recognized University
or equivalent.
ii) 2 years experience in quality
control, analysis or treatment of
water in a public health
la/treatment plant.
Or
i) B.Sc(Science Graduate with
Chemistry) from a recognized
University.
ii) 5 years experience in quality
control, analysis or treatment
of water in a treatment plant
or public health laboratory.
13. Perusal of the qualifications would show that the Assistant Bacteriologist in MCD is required to possess inter alia Masters Degree in Bio-Chemistry etc. with some experience in Bacteriology or Degree in Science with Chemistry etc with five years experience in Bacteriological Examination of Water. Bacteriologist in NDMC is required to be a Science Graduate with Chemistry etc. with 3 years experience in Bacteriological Examination of Water. Thus, prima facie it would appear that the qualifications required of an Assistant Bacteriologist in the MCD are of the same or a higher level as compared to the qualifications required of a Bacteriologist in NDMC. On the other hand, the qualifications required of a Chemist in NDMC are by and large of a similar nature as the qualifications required of a Bacteriologist in MCD. No doubt, these qualifications have been prescribed for direct recruitment but that only goes to show the background considered necessary for doing the job. While recruitment to the post of Bacteriologist in NDMC is by promotion from Lab Technician, failing which by direct recruitment, the recruitment to the post of Chemist is by promotion from Bacteriologist failing which by direct recruitment. On the other hand, in the case of Assistant Bacteriologist in MCD, the recruitment is only provided for by direct recruitment and there is no element of promotion. In the case of Bacteriologist in MCD, the recruitment is by promotion from Assistant Bacteriologist failing which by direct recruitment. The recruitment to the post of Assistant Chief Water Analyst in MCD as evident from RRs at pages 32-33 of the TA is by promotion failing which by direct recruitment and for the post of Chief Water Analyst in MCD by promotion failing which by transfer on deputation from officers holding analogous post under the Central/State Governments as well as MCD and once again failing that by direct recruitment.
14. Therefore, in the NDMC the pay scale of Chemist may become available upon promotion of Bacteriologist with qualifications, which are similar or slightly inferior to those of Assistant Bacteriologist in MCD, whereas similar pay scale in MCD being received by Bacteriologist would become available upon promotion from the post of Assistant Bacteriologist recruited only by direct recruitment with qualifications noticed above. Thus, even though Bacteriologist in NDMC may be getting lower pay scale than Assistant Bacteriologist in MCD he could have been inducted by promotion from the grade of Lab Technician and subsequently promoted as Chemist in a pay scale equivalent to that of Bacteriologist in MCD, thus doing a job as Chemist with qualifications that were originally those of a Lab Technician in NDMC. Therefore, it is difficult to compare the requirement of the job and qualifications prescribed of such posts in NDMC and MCD.
15. The applicant has submitted that he was inducted in NDMC by direct recruitment on ad hoc basis and subsequently regularized. He has claimed that he is post-graduate in Science with specialization in Water and Sewage Analysis and has experience of more than 15 years in the field of Bacteriological Examination of Water. However, no documents have been placed on record to substantiate such contention. The respondents have opposed such claim of the applicant by stating in their counter reply that at the time of appointment, the applicant was B Sc. with Physics, Chemistry and Maths and had no professional or academic background of Bacteriology. His previous experience was technical with Maruti Udyog Limited and he had only chemical background. As such, in the absence of any document placed even by the respondents, the facts in this regard remain in doubt.
16. From a perusal of the pleadings and the stand taken by both sides, it is evident that there is appreciable difference between the hierarchy and job requirement as well as qualifications prescribed for the incumbents of the various posts between the NDMC and MCD. The applicant has not rebutted the stand taken by the respondents by filing any rejoinder to the same nor has any contention been raised during the hearing which might controvert the averments in the counter reply. It cannot be said that the applicant was unaware of the promotional prospects in NDMC or had not acquiesced in the same when he accepted the offer of appointment as Bacteriologist. No doubt, the promotional avenues available to him in NDMC are not the same as may have been available to him if he had joined MCD perhaps as Assistant Bacteriologist, but, as is well settled in law, the chances for promotion would not constitute any right that could be enforced since mere chances of promotion are not a condition of service and no cause can lie on this as held by the Honble Supreme Court in SP Shiv Prasad Pipal Vs. Union of India and Others, 1998(3)SLJ 108 (SC) and Ramchandra Shankar Deodhar & Ors. Vs. The State of Maharastra & Ors.,(1974) 1 SCC 317. Similarly in Sri Krishan Kapania and Others Vs. The State of Punjab through the Chief Secretary to Government of Punjab and Others, 1975(1)SLR 366, the Punjab and Haryana High Court held that if chances of promotion were diminished this would not constitute a violation of the conditions of service and the right to be considered for promotion is not affected thereby.
17. The question of equal pay depends upon several factors such as duties and responsibilities as well as the qualifications possessed and experience held. It would be ordinarily difficult to make such claim stick if there is qualitative difference in the functions and responsibilities also. It was held by the Honble Supreme Court in Orissa University of Agriculture and Technology and Another vs. Manoj K. Mohanty, (2003) 5 SCC 188 by reference to its order in State of Haryana & Ors. vs. Jasmer Singh & Ors., JT 1996 (10) SC 876 that there are inherent difficulties in comparing and evaluating work done by different persons in different organizations or even in the same organization. In Randhir Singh vs. Union of India, AIR 1982 SC 879 it was observed by the Apex Court that the classification of officers into two grades with different scales of pay could be reasonably sustained on the basis of higher qualification for the higher grade which may be either academic qualification or experience based on length of service.
18. The Courts would also not intervene in matters of rule making which lie within the domain of the executive authorities. The Honble Supreme Court in Mullikarjuna Rao and Others etc. etc. vs. State of AP and Others etc.etc., AIR 1990 SC 1251 held in paras 10 & 12 that it is neither legal nor proper for the High Courts or the Administrative Tribunals to issue directions or advisory sermons to the executive in respect of the sphere which is exclusively within the domain of the executive under the Constitution. The Special Rules have been framed under Art.309 of the Constitution. The power under Art.309 of the Constitution to frame rules is the legislative power. This power under the Constitution has to be exercised by the President or the Governor of a State as the case may be. The High Courts or the Administrative Tribunals cannot issue a mandate to the State Government to legislate under Art.309 of the Constitution. The Courts cannot usurp the functions assigned to the executive under the Constitution and cannot even indirectly require the executive to exercise its rule-making power in any manner. The Courts cannot assume to itself a supervisory role over the rule-making power of the executive under Art.309 of the Constitution. The Apex Court in P.U.Joshi and Others vs. Accountant General, Ahmedabad and Others with Union of India and Others vs. Basudeba Dora and Others, 2003 SCC (L&S) 191 has held:
10. We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of policy is within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the statutory tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenue of promotion or impose itself by substituting its views for that of the State. Similarly it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/ subtraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing the existing cadres/posts and creating new cadres/posts.
19. However, the importance of adequate promotional opportunity has been the subject matter of consideration in many cases before the Honble Supreme Court from time to time. There can be no gainsaying the fact that adequate promotional prospects bring about a win-win situation for both employees as well as the employers. A greater satisfaction on the job and its effect in terms of better motivation and sense of well being with positive consequences for the employer could hardly be under-estimated. It is the people who make the organization and the benefits in terms of better efficiency and higher productivity may be significant for the employer. The grant of financial upgradation under the ACP Scheme may to some extent relieve the financial difficulties but it could not take the place of better promotional avenues which lead not only to higher pay scale but also to greater responsibilities, the shouldering of which would normally bring about a sense of achievement leading to greater commitment and more effective contribution by the employees on the job. The Apex Court in Raghunath Prasad Singh vs. Secretary Home (Police) Department, Govt. of Bihar and Others, AIR 1988 SC 1033 deprecated the absence of adequate promotional prospects and observed that reasonable promotional opportunities should be available in every wing of public service as it generates efficiency in service and fosters the appropriate attitude to grow for achieving excellence in service. In the absence of promotional prospects, the service is bound to de-generate and stagnation kills the desire to serve properly. The Honble Supreme Court in Council of Scientific & Industrial Research & Another vs. Mr. K.G.S.Bhatt and Another, 1989(2) Scale 395 observed that:
9It is often said and indeed, adroitly, an organization public or private does not hire a hand but engages or employees a whole man. The person is recruited by an organization not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organization. It is an incentive for personnel development as well. (See : Principles of Personnel Management by Flipo Edwin B. 4th Ed. P.246). Every management must provide realistic opportunities for promising employees to move upward. The organization that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty n terms of administrative costs, misallocation of personnel, low morale, and ineffectual performance, among both non managerial employees and their supervisors. (See : Personnel Management by Dr. Udai Pareek p. 277). There cannot be any modern management much less any career planning, man-power development, management development etc. which is not related to a system of promotions. (See : Management of Personnel in Indian Enterprises by Prof. N.N. Chatterjee, Chap. 12 p. 128)
20. In view of the above discussion, we are not persuaded that the applicant has been able to make out a case to justify the grant of the relief sought by him. The TA is therefore dismissed but without any order as to costs. However, we would suggest that the respondents may, if so advised, like to satisfy themselves of the possibilities, if any, that may exist for extending improved promotional opportunity in the light of the judgments of the Honble Supreme Court which empower them in this regard and spell out the advantages of the same.
(Dr. Dharam Paul Sharma) (N.D. Dayal)
Member(J) Member(A)
/vv/