Karnataka High Court
Commander (Retd) Devendra Singh vs Union Of India on 3 July, 2024
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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WP No. 9687 of 2020
C/W WP No. 9688 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
WRIT PETITION NO. 9687 OF 2020 (S-PRO)
C/W
WRIT PETITION NO. 9688 OF 2020 (S-R)
IN W.P.No.9687/2020:
BETWEEN:
1. COMMANDER (RETD.) DEVENDRA SINGH
S/O SHRI LATE KP SINGH
AGED ABOUT 55 YEARS,
COMMANDER (RTD)/ FLIGHT TEST ENGINEER-2
AERONAUTICAL DEVELOPMENT AGENCY
MINISTRY OF DEFENCE. GOVERNMENT OF INDIA
VIMANAPURA POST, BENGALURU-560017.
...PETITIONER
(BY SRI. M P SRIKANTH.,ADVOCATE)
Digitally
signed by
KIRAN AND:
KUMAR R
Location: 1. UNION OF INDIA
HIGH
COURT OF BY ITS SECRETARY
KARNATAKA DEPARTMENT OF DEFENCE RESEARCH
AND DEVELOPMENT,
MINISTRY OF DEFENCE.
GOVERNMENT OF INDIA.
DRDO BHAWAN, RAJAJI MARG
NEW DELHI-110011.
2. AERONAUTICAL DEVELOPMENT AGENCY
REPRESENTRED BY DIRECTOR GENERAL
ALSO SECRETARY
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WP No. 9687 of 2020
C/W WP No. 9688 of 2020
DEPARTMENT OF DEFENCE RESEARCH
AND DEVELOPMENT,
MINISTRY OF DEFENCE, GOVERNMENT OF INDIA,
DRDO BHAWAN, RAJAJI MARG
NEW DELHI-110011.
AND ALSO AVAILABLE AT
PB-1718, VIMANAPURA POST
BENGALURU-560017
3. PROGRAMME DIRECTOR (CA) AND DIRECTOR
AERONAUTICAL DEVELOPMENT AGENCY
MINISTRY OF DEFENCE, GOVERNMENT OF INDIA
PB-1718, VIMANAPURA POST
BENGALURU-560017.
4. DIRECTOR (ADMIN AND HR)
AERONAUTICAL DEVELOPMENT AGENCY
MINISTRY OF DEFENCE, GOVERNMENT OF INDIA
PB-1718, VIMANAPURA POST
BENGALURU-560017.
...RESPONDENTS
(BY SMT.K. SAROJINI MUTTANNA, CGC)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ENDORESEMENT DATED 20.05.2020 OF THE R-2
VIDE ANNEXURE-AAH, ETC.
IN W.P.No.9688/2020:
BETWEEN:
1. COMMANDER (RETD) DEVENDRA SINGH
S/O SHRI LATE KP SINGH, AGED ABOUT 55 YEARS
COMMANDER (RTD) FLIGHT TEST ENGINEER-2
AERONAUTICAL DEVELOPMENT AGENCY
MINISTRY OF DEFENCE. GOVERNMENT OF INDIA
VIMANAPURA POST, BENGALURU-560017
...PETITIONER
(BY SRI. M P SRIKANTH., ADVOCATE)
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WP No. 9687 of 2020
C/W WP No. 9688 of 2020
AND:
1. UNION OF INDIA
BY ITS SECRETARY
DEPARTMENT OF DEFENCE RESEARCH
AND DEVELOPMENT,
MINISTRY OF DEFENCE.
GOVERNMENT OF INDIA.
DRDO BHAWAN, RAJAJI MARG
NEW DELHI-110011.
2. AERONAUTICAL DEVELOPMENT AGENCY
REPRESENTRED BY DIRECTOR GENERAL
ALSO SECRETARY
DEPARTMENT OF DEFENCE RESEARCH
AND DEVELOPMENT,
MINISTRY OF DEFENCE, GOVERNMENT OF INDIA,
DRDO BHAWAN, RAJAJI MARG
NEW DELHI-110011.
AND ALSO AVAILABLE AT
PB-1718, VIMANAPURA POST
BENGALURU-560017
3. PROGRAMME DIRECTOR (CA) AND DIRECTOR
AERONAUTICAL DEVELOPMENT AGENCY
MINISTRY OF DEFENCE.
GOVERNMENT OF INDIA
PB-1718, VIMANAPURA POST
BENGALURU-560017.
4. DIRECTOR (ADMIN AND HR)
AERONAUTICAL DEVELOPMENT AGENCY
MINISTRY OF DEFENCE.
GOVERNMENT OF INDIA
PB-1718, VIMANAPURA POST
BENGALURU-560017.
...RESPONDENTS
(BY SMT.K. SAROJINI MUTTANNA, CGC)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
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DIRECT THE RESPONDENTS TO CONSIDER THE
REPRESENTATIONS DATED 25.07.2012, 31.05.2018,
20.06.2018, 22.07.2019 AND 20.12.2019 SUBMITTED BY THE
EPTITIONER WITH REGARD TO THE FIXATION OF PAY AND
DEDUCTION OF PENSION AMOUNT FROM HIS SALARY VIDE
ANNEXURES-AB, AV, AD, AF AND AG AND OTHER ASSOCIATED
SERVICE ALLOWANCES WITH IT, INCLUDING NPS, FPA, ETC.
THESE PETITIONS, COMING ON FOR DICTATING
ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. Commander (Retired) Devendra Singh--the petitioner herein holds a degree in Bachelor of Engineering (Mechanical) and was commissioned in the Indian Navy in the year 1986.
2. The petitioner states that he has completed the Marine Engineering specialization course in July, 1988 and is an alumnus of the Test Pilots School, ASTE, Indian Air Force, Bangalore and has graduated as First Naval Flight Test Engineer (fixed wing aircraft) in April, 1993. He also states that he is a member of the American Society of Flight Test Engineers and that he holds a Master's degree in Business Administration (Marketing). He also states that he possesses two post-graduate Diplomas in Management -5- NC: 2024:KHC:25226 WP No. 9687 of 2020 C/W WP No. 9688 of 2020 and has obtained his Ph.D. from Vishweshwaraiah Technological University, Belgaum in 2022. He also states that he is a Fellow of the Aeronautic Society of India and has been the Chairman of Goa Chapter, and also a Fellow of the Institution of Engineers (India), in addition to possessing a certificate as a Chartered Engineer obtained in February, 2007.
3. The petitioner states that he was posted to work as a Naval Officer as a qualified Flight Text Engineer at the Aeronautical Development Agency ("the ADA") i.e., the 2nd respondent--organization in the year 2008 and worked at said organisation until his retirement on 28.04.2011, after which he applied to the ADA.
4. The facts relevant to the present petition are narrated hereinbelow.
5. On 25.05.2010, a notification was issued by the ADA calling for applications for various posts, including that of Scientist/Engineer 'F' with Pay Band 4: Rs.37,400 - -6-
NC: 2024:KHC:25226 WP No. 9687 of 2020 C/W WP No. 9688 of 2020 67,000/- and Grade Pay of Rs.8,900/-. The petitioner sought 'no objection' from the Naval Headquarters to apply to said post of Scientist/Engineer 'F', which was accordingly granted.
6. By the communication dated 14.06.2010 addressed to the petitioner, the ADA granted permission to the petitioner to apply to the post of Scientist/Engineer F. Pursuant to said permission being granted, the petitioner applied for being appointed to the post of Scientist/Engineer 'F' and was subsequently called for an interview.
7. The petitioner was successful in the interview and was issued an offer of appointment dated 19.01.2011. This offer contains 12 conditions. The 3rd condition, which would be relevant for this petition, reads as follows:
"(c) In the event of your release from Naval Headquarters on pre-mature retirement, your pay on joining ADA will be fixed as applicable to re-employed pensioners as per the provisions contained in DOPT OM No.3/1/85-Estt(PII) dated 31.07.1986. You will be -7- NC: 2024:KHC:25226 WP No. 9687 of 2020 C/W WP No. 9688 of 2020 entitled to draw other allowances as per Central Govt rules."
8. In light of the offer of appointment received by the petitioner, the petitioner sought premature retirement from the Navy, and the Navy proceeded to pass an order on 23.03.2011 permitting the petitioner to retire prematurely.
9. On 29.04.2011, the petitioner reported for duty to the post of Scientist/Engineer 'F'. The pay of the petitioner was also provisionally fixed on 23.05.2011 and while fixing the pay of the petitioner, the estimated pension was taken as Rs.31,360/- and his basic pay was adjusted to the pay band as Rs.21,350/- along with grade pay of Rs.8,900/-.
10. On 27.10.2011, the ADA proposed to frame a Scheme for appointment of Test Pilots and Flight Test Engineers ("FTE") at National Flight Test Centre ("NFTC")
- ADA. In this regard, the note put up by the Director vide Annexure-R3 to the affidavit of the Director (Admin & HR), -8- NC: 2024:KHC:25226 WP No. 9687 of 2020 C/W WP No. 9688 of 2020 ADA, dated 03.10.2023 is reproduced for the sake of clarity as under:
"AERONAUTICAL DEVELOPMENT AGENCY No.ADA:ADM:EST:RMT:NFTC:2011 27 Oct 2011 Sub: Appointment of Test Pilots and Flight Test Engineers at NFTC - ADA
1. National Flight Test Centre (NFTC) is a constituent of ADA. The objectives of NFTC include flight testing, planning, establishing the ground facilities for flight testing, monitoring, data acquisition, data analysis, etc. NFTC is currently headed by Technology Director (Flight Test), in the rank of Air Commodore on deputation from Indian Air Force. Five Test Pilots and five Flight Test Engineers are now on deputation from Indian Air Force (IAF)/ Indian Navy (IN) to form the team of NETC, along with Engineers from ADA, HAL and DRDO.
2. The Officers of the IAF/IN are on deputation normally for a period of one to three years based on the approval of IAF/INSTITUTION On completion of the tenure they are recalled by the IAF/INSTITUTION It was decided to employ few full time test Pilots(TP)/Flight Test Engineers(FTE) at ADA in addition to those from the IAF/IN, to maintain continuity from the Programme angle. Approval of the -9- NC: 2024:KHC:25226 WP No. 9687 of 2020 C/W WP No. 9688 of 2020 Governing Body of ADA has already been obtained to appoint 2 TPs and 2 FTEs within the overall sanctioned strength of ADA (Appendix 'A').
3. Discussions were held with Project Director (FT), NEFTC on the above. ADA would like to employ officers from the mainstream/officers choosing to remain in flying cadre. Qualified TPs and FTEs with continuity in prescribed flying experience on combat aircraft are not readily available. Test crew with no prior flight test experience on combat aircraft will impose a heavy strain and will not contribute to the programme's requirement and not recommended for permanent employment in ADA. Whilst sustained support from the IAF/IN for future flight operations of the LCA Aircraft is necessary, ADA may also employ a few officers on its own strength in order to maintain Programme continuity.
4. Towards this effort, a Scheme of guidelines governing the employment of TPs and FTEs. Spelling out the terms and conditions of their service etc., has been prepared and submitted herewith, based on the overall and guidance in the approval of the Governing Body of ADA.
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5. Approval of DG-ADA is sought for implementation of the Scheme placed at enclosure (Appendix 'B').
Sd/-
(C D Balaji) Director (Admn & HR)"
11. As could be seen from the above-extracted note, the ADA had decided to employ a few officers on its own strength in order to maintain programme continuity as against the prevailing practice of getting officers from the Indian Air Force/Indian Navy for a period of 1-3 years. The scheme that was proposed as a personnel policy indicated recruiting 2 Test Pilots and 2 Flight Test Engineers within the sanctioned overall strength.
12. It stated that for the post of Test Pilot-2 and FTE-2, the equivalent post offered in the ADA was that of Scientist/Engineer 'F'. This personnel policy which indicates that personnel who hold the post of FTE-2 and a rank of Group Captain/Captain in the grade pay and pay
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NC: 2024:KHC:25226 WP No. 9687 of 2020 C/W WP No. 9688 of 2020 band of Rs.8,700-37,400-67,000/- would be offered the post of Scientist/Engineer 'F' in the ADA.
13. With the petitioner having been appointed as a Scientist/Engineer 'F', it is obvious that this post was equated to the post of FTE-2 in the Air Force and the Navy. In other words, as the petitioner was holding the designation of an FTE-2 in the Navy, he was obviously being offered the post of Scientist/Engineer 'F'.
14. The personnel policy which is produced as an appendix to Annexure-R3 provides for pay and allowances, as well as assessment and promotion.
15. Clause 6(iii) of said personnel policy relating to pay and allowances reads as follows:
"6(iii) They will be entitled for the following additional allowances payable at the rate applicable to other FTP/FTE on deputation by NFTC of ADA as per GoI letter No.18011/2/2000/IF(R&D)/4156/D(R&D)/2000 dated 21.11.2000 (copy at Appendix 'C'). This amount will be revised as and when revised for
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• Flying Pay • Hazardous Flying Pay • FTE Allowance and Allowance for Pilot • Flying kit and Flying Kit Maintenance Allowance • Pre-flight Meal Allowance."
Thus, the persons to be recruited as FTE-2 were entitled to special allowances in consonance with Clause 6(iii) of the personnel policy.
16. Clause 7 of the personnel policy relating to assessment and promotion states that there would be promotional avenue from the post of FTE-2 to the post of Project FTE-3, for which the minimum residency period would be for five years, and the committee for assessment to be constituted would be a four-member committee comprising the following members:
(i) Director General ADA/ - Chairman
Distinguished Scientist nominated
By DG-ADA
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(ii) PGD(CA) & Director, ADA - Member
(iii) Project Director (FT),
NFTC, ADA - Member
(iv) Commandant, ASTE - External Expert
17. On 22.11.2013, the ADA took up the matter of posting of an FTE at the ADA with reference to the qualification and posting of the petitioner. The note put up for the approval of the Standing Committee regarding the posting of the FTE at ADA was as follows:
"Aeronautical Development Bangalore ADA/LCA NAVY/4037/MP 22 Nov 2013 1 Qualifications and posting details of Cdr Devendra Singh As FTE Encl-1A 2 Approval of Standing Committee of Governing Body of ADA for Test Pilots and Flight Test Engineers at ADA vide Note ADA/LCA/Admin/2008 dated 03 Nov 2008
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NC: 2024:KHC:25226 WP No. 9687 of 2020 C/W WP No. 9688 of 2020 Encl-2A 3 Flight Test Engineer (FTE) posting at ADA Introduction
1. The Light Combat Aircraft - Navy (LCA Navy), is the Naval version of the LCA, designed and developed at ADA, Bangalore and built at HAL, capable of operating from an aircraft carrier with a ski jump for take-off and arrested recovery for landing. The LCA Navy Programme is envisaged in two phases currently with five Naval prototype aircraft of Mk1 and Mk2 versions by Dec 2018.
Current Status of LCA Navy.
2. After its build and maiden flight on 27 Apr 2012, the first Naval Prototype aircraft, NP1 that is a two- seater variant is currently under flight test at Bangalore towards preparation for ski jump launch at Goa. Thereafter, aircraft will be ferried to Shore Based Test Facility (SBTF) Goa for extensive test flying to achieve Carrier Compatibility Tests (CCT). The second Naval Prototype aircraft NP-2 that is a Single seater is expected to join test fleet by mid 2014 and NP-5 by early 2016. Concept design of LCA Navy Mk-2 has been initiated and two LCA Navy Mk2 prototype
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3. The Flight Testing and Certification of such unique design features for LCA Navy requires consolidation of Flight Test Requirements, preparation of flight/development test plan and execution of flight test points. Thus, a qualified Flight Test Engineer (FTE) would provide the necessary support to undertake such complex tasks in a systematic and professional manner.
Shore Based Test Facility (SBTF), Goa
4. The SBTF is being developed at the Naval Air Station, INS Hansa, Goa by ADA, Bangalore, to meet the requirement to certify LCA (Navy) in an Aircraft Carrier environment, The facility will also be used for the training of Pilots on LCA Navy and MiG 29K aircraft. The facility is equipped with Restraining Gear System (RGS) with Ski-jump for take-off, Arresting Gear System (AGS) for landing. Optical Landing System, TV Landing Control System, Light Control System and other associated auxiliary systems. The SBTF has state-of-the-art Telemetry Building for flight test operations, data acquisition, storage and analysis. The design consultancy and specialized equipment has been provided by the Russian side. Additional Contract has been signed with RAC MIG to provide Russian
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Requirement of Flight Test Engineer (FTE).
5. The SBTF is a unique Flight Test facility for aircraft, and it is preferable to be manned by suitably qualified FTE with adequate overall knowledge of SBTF build, characteristics of specialized equipment and over all appreciation of the Test Facility. A qualified FTE with experience of SBTF will ensure efficient operational exploitation of SBTF and efficiently integrate specific flight test requirements of LCA Navy aircraft and exploitation of MiG 29K/KUB aircraft.
6. Presently, there is acute shortage of Flight Test Aircrew at ADA in general and Naval Flight Test crew in particular. Also, the presently serving Naval test crew is susceptible for transfer out of ADA.
Current Proposal and Justification.
7. Cdr Devendra Singh was posted from the Indian Navy to LCA Navy Programme Office, ADA on 02 Jul 2008 for Air Engineering and FTE duties with all Flight Test Aircrew allowances being paid by the Indian Navy.
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NC: 2024:KHC:25226 WP No. 9687 of 2020 C/W WP No. 9688 of 2020 During the period, he was assigned the main duties of SBTF and LCA Navy Flight Test coordination. He was assigned many key tasks related to SBTF including Member Secy for Ramp T/O Committee and National Design Review Committee for SBTF Telemetry Facility, to address all the Naval SBTF/CCT specific Flight Test issues. Thus, it can be seen that he has been employed in the related areas of Naval Flight Testing and SBTF related issues.
8. Cdr Devendra Singh applied for Premature Retirement from Naval Service through proper channel and joined ADA on 29 Apr 2011 as Scientist 'F' after due selection by RAC in response to ADA Recruitment advertisement. His employment and duties largely is towards coordination of the SBTF at Goa. It is intimated that he has not been paid financial allowances of FTE by ADA as he has been recruited as a Scientist 'F' and not as an FTE.
9. Cdr Devendra Singh has suitable qualification for coordination of SBTF activities and LCA Navy Flight Test requirements. With his Service Seniority, existing and demonstrated multi-disciplined technical and managerial skills, he is considered suitable for FTE duties especially for coordination at SBTF at Goa. His overall Flight-Testing experience and postings are placed at enclosure-1.
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10. Currently, the LCA Navy Programme has reached a crucial stage of development and Naval Flight Test Plan for SBTF/CCT has assumed critical importance. There is an urgent need for readiness of various activities concerning LCA Navy covering Flight Test Plan, Ski-jump and Arrested Landing Activities for CCT at SBTF and IOC. Converting the appointment of Cdr (Retd) Devendra Singh from that of a Sc 'F' to Flight Test Engineer (FTE) against an available vacancy already approved by the Governing Body of ADA (Enci-2) could assist the LCA Navy Programme towards LCA Navy Flight Testing requirements including testing from SBTF/CCT.
Approval Sought
11. Approval of Standing Committee of Governing Body of ADA is sought for converting appointment of Cdr (Retd) Devendra Singh, Scientist 'F' as Flight Test Engineer (FTE), against existing Governing Body approved vacancy, with full financial benefits as per the existing rules, as admissible to ADA FTES.
Sd/- 23.11.2013
(CD Balaji)
OS & PD LCA Navy."
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18. As could be seen from paragraph 10 of the above note, it is clear that the note recommended converting of appointment of the petitioner from that of a Scientist/Engineer 'F' to that of an FTE against the available vacancy which had already been approved by the Governing Body. Thus, it is clear from the above that though the petitioner had been appointed as a Scientist/Engineer 'F', his appointment was sought to be converted to that of an FTE.
19. In fact, the note of the Project Director (Flight Test) reads as follows:
"Existing Governing Body approval is for ensuring CONTINUITY of previous flight test experience at NFTC, in public interest. Re-appropriation is not recommended detailed comments are placed at enclosure 3 in file."
20. As could be seen from the above note of the Project Director, the existing Governing Body approved the request for converting the appointment for ensuring
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21. The Members of the Standing Committee of the Governing Body of the ADA approved said conversion of the petitioner's appointment as an FTE.
22. Since the note in the order of approval indicates that the appointment of the petitioner was being converted, it is obvious that, in essence, the appointment of the petitioner as a Scientist/Engineer 'F' was converted to that of an FTE by the ADA.
23. Pursuant to this approval of the Governing Body dated 22.11.2013, an office order was issued on 31.01.2014 re-designating the petitioner's post as FTE-2 in the pay band of Rs.37,400-67,000/- along with grade pay of Rs.8,900/- with effect from the date of his assumption of duty as an FTE-2. This order also declared that the petitioner was entitled to draw five special allowances with effect from the date of his assumption of duty as an FTE-2.
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NC: 2024:KHC:25226 WP No. 9687 of 2020 C/W WP No. 9688 of 2020 It was also made clear that on assuming charge as an FTE-2, the petitioner would cease to draw allowances/incentives which were applicable to Scientist/Engineer 'F', with effect from the date of assumption of duty as an FTE-2.
24. In light of this order, the petitioner proceeded to submit a communication dated 31.01.2014 to the Joint Director (Administration), ADA, informing him that he had assumed charge as an FTE-2 per the order dated 31.01.2014. He also stated that he was assuming charge in the re-designated post with effect from 29.04.2011. Essentially, the petitioner by said communication stated that since his post was converted, he was declaring that he had reported as an FTE-2 from the date of his original reporting as a Scientist/Engineer 'F' i.e., 29.04.2011.
25. However, the Joint Director of the ADA addressed a communication dated 25.04.2014 to the petitioner stating that the proposal converting the appointment from Scientist/Engineer 'F' to FTE-2 came into effect from
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NC: 2024:KHC:25226 WP No. 9687 of 2020 C/W WP No. 9688 of 2020 31.01.2014, and hence, the petitioner was required to submit a fresh joining report indicating that he had assumed charge as an FTE-2 on 31.01.2014.
26. It is thus clear that the ADA essentially appointed the petitioner -- initially as a Scientist/Engineer 'F' and, thereafter, converted the appointment of the petitioner to that of an FTE-2 along with allowances under the personnel policy of 2011.
27. The petitioner thereafter filed representations regarding his promotion and this issue was examined by the ADA, after which it issued a communication dated 24.06.2016. In this communication, the ADA stated that the petitioner was appointed as an FTE-2 in the ADA only on 31.01.2014 and was drawing various allowances thereafter, and his case for promotion to the post of Project FTE-3 would be taken up for consideration only after the completion of five years from the date of appointment as an FTE-2, subject to the condition that his APAR grading is 85% average or above.
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28. The ADA observed that the petitioner had not completed the minimum residency period of five years as an FTE-2, and his case for promotion to Project FTE-3 could not thus be considered. The said order would indicate that the ADA considered the petitioner as an FTE- 2 only from 31.01.2014 i.e., the date on which his post was re-designated. The ADA did not take into consideration the approval granted by the Governing Body for converting the appointment of the petitioner from that of Scientist/Engineer 'F' to that of FTE. The petitioner, thereafter, made further representations on 30.06.2016 and 06.10.2016 vide Annexures-AY and AZ.
29. These were, however, replied to by the ADA vide communication dated 14.10.2016, wherein it was stated that the earlier communication dated 24.06.2016 would be applicable. In other words, the ADA reiterated that the petitioner's residency period commencing from 29.04.2011 i.e., the day on which he was appointed as Scientist/Engineer F, would not entitle him for
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30. The petitioner was then directed to appear before the Assessment Board for promotion from FTE-2 to Project FTE-3 and the petitioner agreed to appear before the Assessment Board under protest and stated that he was required to be paid all pending special allowances and consider his promotion with effect from April, 2011, and that he should, in fact, be considered for two promotions. He also contended that the deduction of his pension from his salary should be stopped.
31. The Assessment Board then assessed the case of the petitioner and that of another person for promotion.
32. The affidavit filed by Mr. Sankaraiah Mada, Director (Admin and HR) on 03.10.2023 indicates that the CAO submitted a tabular column to the Committee for consideration of promotion of the petitioner and Group
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NC: 2024:KHC:25226 WP No. 9687 of 2020 C/W WP No. 9688 of 2020 Captain-Malteesh Prabhu, wherein it was stated that the petitioner had the average of 85.83% APAR marks for 6 years' residency period from 2014 to 2019 and average of 84.8% marks for 5 years, as compared to 94.8% for 6 years and 94.75% by said Malteesh Prabhu (as per Annexue-R5 to the affidavit).
33. It is obvious from the above that the petitioner did possess the APAR grading of over 85% as intimated to the petitioner under the communication dated 24.06.2016 vide Annexure-AX. The Committee for assessment of promotion assessed the case of the petitioner on 04.03.2020 and proceeded to make a recommendation in respect of the petitioner to the effect that he was not fit for promotion.
34. The Committee, however, stated that the other candidate i.e., the Group Captain-Malteesh Prabhu was fit for promotion and should be considered for promotion with a residency period of 5 years. The assessment sheet produced along with the affidavit dated 03.10.2023 indicates that the marks required to be obtained in the
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NC: 2024:KHC:25226 WP No. 9687 of 2020 C/W WP No. 9688 of 2020 interview was 85 and the petitioner had secured only 81. Thus, according to the assessment, the petitioner had not secured minimum prescribed marks in the interview in order to be considered for promotion.
35. The petitioner thereafter addressed a communication dated 20.05.2020 stating that his case for promotion had not been approved by the Competent Authority and, therefore, his case for promotion could not be made in light of the recommendation of the Assessment Board.
36. The petitioner, being aggrieved by this refusal of his claim for promotion, has preferred W.P.No.9687/2020.
37. When this matter was listed on a separate occasion, it was averred by the counsel for the petitioner that the petitioner's promotions were being deliberately held back and that as per the affidavit to the counter filed by the respondent counsel, the candidates were to be assessed objectively. It was further pointed out that the provision to conduct an interview ought to have been made in the
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NC: 2024:KHC:25226 WP No. 9687 of 2020 C/W WP No. 9688 of 2020 recruitment and promotion rules of the organisation and since there was no such requirement, the conducting of an interview and stating that he was not fit for promotion on the basis of his performance in the interview would be illegal.
38. In this petition, the petitioner is challenging the order by which he has been posted to the NFTC and is also seeking a direction to consider his case for promotion to FTE-3 and further to FTE-4, which were due in 2016 and in 2019. The petitioner is also seeking a declaration that non- assignment of duties as FTE-2 and the order of posting dated 01.09.2017 posting him to NFTC were illegal and that he was entitled to continue with the duties attached to said post.
39. The petitioner is also challenging the order by which payment of special allowances was withheld with effect from 01.09.2017 under the order dated 26.09.2017 and prays for a direction to implement the order of posting dated 01.09.2017.
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40. The petitioner is also seeking a direction that he be paid the allowances admissible to FTE-2 from the date of his appointment i.e., 29.04.2011 till 31.01.2014, during which he actually carried on the duties of an FTE-2.
41. As could be seen from the abovesaid facts, the petitioner is aggrieved by the refusal on the part of the ADA to consider him as an FTE-2 with effect from 29.04.2011. The petitioner states that by virtue of the decision of the Governing Body, his appointment as Scientist/Engineer F was converted to that of an FTE and the refusal of the ADA to consider his residency from 29.04.2011 for the purpose of being promoted as an FTE-3 is illegal.
42. The petitioner is also aggrieved by the ultimate refusal of the ADA in promoting him as an FTE-3 on the ground that the Assessment Board found him unsuitable and did not recommend him for promotion. The petitioner is also seeking payment of special allowances which were
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NC: 2024:KHC:25226 WP No. 9687 of 2020 C/W WP No. 9688 of 2020 granted to him on the conversion of his post, since these allowances had been withheld.
43. Apart from the above writ petition, the petitioner has filed yet another writ petition on the very same day i.e., W.P.No.9688/2020 in which he is seeking a direction to be issued to the ADA to consider his representations by which he had sought fixation of pay, and demanded that the pension amount not be deducted from his salary, along with a direction that his arrears of naval pension should be paid to him along with interest.
44. In response to the petition, the ADA admits that the petitioner was appointed to the post of Scientist/Engineer 'F'. It further states that in the year 2013, since there was an urgent need for an FTE to establish a Shore Based Test Facility ("SBTF") at Goa, and since the petitioner had expressed his inclination for being re-designated as an FTE, his name was moved for converting his appointment from Scientist/Engineer 'F' to FTE with effect from 31.01.2014. It is stated that the petitioner's name was
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NC: 2024:KHC:25226 WP No. 9687 of 2020 C/W WP No. 9688 of 2020 forwarded only for specific emergent requirement of building SBTF and not for filling up any vacancy of FTE-2 at the NFTC. It is stated that the post of FTE-2 was a cadre post at the NFTC and this vacancy was filled up on deputation by the serving Air Force/Navy Engineering officers who possessed the requisite qualification and experience on specific requirement of the NFTC.
45. It is stated that the petitioner's name was recommended for converting his appointment from Scientist/Engineer 'F' to FTE only for limited purpose of co- ordinating the work of SBTF while the project was on, and, as a consequence, he became entitled to all allowances due to FTE-2.
46. It is stated that there was no job as the FTE-2 in the ADA and the petitioner, on being re-designated as an FTE and though he was made a co-ordinator of SBTF at Goa, he did not relocate to Goa, but remained with the ADA, Bangalore. It is stated that in order to utilize his expertise, he was posted to another DRDO unit in Bangalore for flight
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NC: 2024:KHC:25226 WP No. 9687 of 2020 C/W WP No. 9688 of 2020 test duties, but did not report to said place and, thereafter, he was once again posted to the NFTC in September, 2017.
47. It was their further averment that there were remarks against the petitioner that he was considered a flight safety hazard since he did not possess the requisite experience and was also not successful in the interview that followed. It was thus stated the rejection of the petitioner's promotion, for these reasons as well, was justified.
48. It is contended that the petitioner was officially re- designated as an FTE-2 with effect from 31.01.2014 and until then, he was holding the post of a Scientist/Engineer 'F' and was not performing any flight test duties and, hence, was not entitled to any flight allowance.
49. It is stated that the five-year residency period for promotion can be considered only for Scientist/Engineer 'F' and not for FTE-2, and the petitioner completed five years
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NC: 2024:KHC:25226 WP No. 9687 of 2020 C/W WP No. 9688 of 2020 of residency in the designation of FTE-2 only in 2019 and his case was considered by the DPC on 04.03.2020 before recommending that he was not fit for being promoted as Project FTE-3 in the ADA.
50. Thus, the ADA essentially contended that the petitioner was appointed as a Scientist/Engineer 'F' and the conversion of his appointment was only because of the emergent requirement of building an SBTF and the petitioner was asked to perform the role of a co-ordinator and his appointment was not converted for filling up any vacancy of FTE-2 in the NFTC.
51. When a specific query was put forth by this Court to point out the provisions in the Recruitment Rules which enabled for an interview to be conducted, the counsel for the ADA pointed out that since the petitioner held a post equivalent to that of a Scientist/Engineer-F, the same promotion rules were to be applied.
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NC: 2024:KHC:25226 WP No. 9687 of 2020 C/W WP No. 9688 of 2020
52. In other words, though the Governing Body converted the appointment of the petitioner from Scientist/Engineer 'F' to that of FTE, the ADA in its counter contends that the conversion and re-designation would not have the effect of treating the petitioner as an FTE-2 from the date of his appointment i.e., 29.04.2011.
53. The petitioner, however, contends on the contrary and claims that he should be considered as an FTE from the date of his appointment as Scientist/Engineer 'F', since his appointment was converted.
54. As already extracted above, the ADA wanted to convert the appointment of the petitioner from Scientist/Engineer 'F' to that of an FTE, in view of the fact that the Light Combat Aircraft ("LCA") Navy programme had reached a crucial stage of development and as the Naval Flight Test Plan for SBTF/CCT had assumed critical importance, there was an urgent need for readiness of various activities concerning the LCA Navy covering Flight Test Plan, Ski-jump ad Arrested Landing Activities for CCT
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NC: 2024:KHC:25226 WP No. 9687 of 2020 C/W WP No. 9688 of 2020 at SBTF and IOC. In light of this clear note found at paragraph - 10 of Annexure-AC dated 22.11.2013, it is obvious that the conversion of the petitioner's appointment was not because the petitioner had expressed his inclination to be appointed as an FTE, but as a matter of fact, this was the requirement of the ADA itself.
55. The Governing Body of the ADA approved the recommendation of the ADA to convert the appointment of the petitioner from Scientist/Engineer 'F' to that of FTE. It is to be noticed here that when the Members of the Standing Committee of the Governing Body of the ADA (comprising the Financial Advisor (DS), Secretary, Defence Production, Secretary, Department of Defence (R&D)/Chairman, Governing Body of the ADA) had approved the conversion of the very appointment of the petitioner from Scientist/Engineer 'F' to FTE, it would not be permissible for the ADA to thereafter state that the conversion of petitioner's appointment was essentially a
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NC: 2024:KHC:25226 WP No. 9687 of 2020 C/W WP No. 9688 of 2020 re-designation and would only come into effect from 31.01.2014.
56. The effect of appointment to one particular post to be converted to another post would essentially relate back to the very date of appointment. In fact, in the note, it was stated that the petitioner had been posted from the Indian Navy to LCA Navy Programme Office, ADA in the year 2008 for Air Engineering and he was assigned with FTE duties with all Flight Test Aircrew allowances being paid by the India Navy. It is also stated that he was assigned with main duties of SBTF and LCA Navy Flight Test Co-ordination and was also assigned with many key tasks related to SBTF including Member Secretary for Ramp T/O Committee and National Design Review Committee for SBTF Telemetry Facility to address all the Naval SBTF/CCT specific Flight Test issues. It was categorically stated that he had been employed in the related areas of Naval Flight Testing and SBTF related issues.
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NC: 2024:KHC:25226 WP No. 9687 of 2020 C/W WP No. 9688 of 2020
57. The note at Annexure-AC also indicates that the petitioner was not paid financial allowances of FTE by ADA as he was recruited as Scientist/Engineer 'F' and not as an FTE. This note, by itself, indicates that the service of the petitioner was utilized in the areas of naval SBTF/CCT specific flight test issues, as he was found suitable for FTE duties. If the appointment of the petitioner was converted after noticing that he was qualified and suitable to discharge the duties of FTE and was tasked with duties associated with an FTE during his tenure, it cannot also be contended by the ADA that the petitioner was officially appointed as an FTE only from 31.01.2014.
58. It is no doubt true that the allowances applicable to an FTE were given to the petitioner pursuant to the order of redesignation; but this would not lead to an inference that he can be considered as an FTE-2 only from the date of redesignation. The allowances would automatically become payable once the post was converted, and what is important to be noticed is that the ADA in the
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NC: 2024:KHC:25226 WP No. 9687 of 2020 C/W WP No. 9688 of 2020 aforementioned note acknowledges the fact that the petitioner was assigned duties commensurate with that of an FTE, though he was appointed as a Scientist/Engineer F.
59. The Personnel Policy also indicates that a policy decision was taken for employment of FTE in the NFTC at the ADA and in respect of FTE-2, an equivalent post to that of Scientist/Engineer 'F' was offered by the ADA and the grade pay of both FTE-2 and Scientist/Engineer 'F' were the same as that of FTE.
60. If about six months after the petitioner was appointed the ADA itself had formulated the policy to offer the post of Scientist/Engineer 'F' to those who worked as FTE-2 in the Air Force/Indian Navy, the entitlement of the petitioner to be considered for appointment as FTE-2 cannot be denied.
61. In light of the facts narrated in the note that the petitioner had been tasked with duties relatable to an FTE
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NC: 2024:KHC:25226 WP No. 9687 of 2020 C/W WP No. 9688 of 2020 and that the Governing Body approved the conversion of the petitioner's appointment from Scientist/Engineer F to that of FTE-2, it would necessarily have to relate back to the date of the petitioner's initial appointment as Scientist/Engineer 'F'. The refusal of the ADA in considering the residency from the date the petitioner was appointed as Scientist/Engineer 'F' from 29.04.2011 for considering his case for promotion to FTE-3 would thus be illegal.
62. However, it is to be noticed here that since the order of appointment did not specifically grant allowances which were applicable to an FTE and special allowances were provided for the petitioner, he would not be entitled to the allowances which are applicable to FTE from 29.04.2011. The petitioner, however, from the moment his appointment was converted to that of FTE-2, would be entitled to all the allowances applicable to FTE-2.
63. It may be pertinent to state here that the fact as to whether the petitioner assigned the duties of an FTE-2 or
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NC: 2024:KHC:25226 WP No. 9687 of 2020 C/W WP No. 9688 of 2020 not would not really be of much relevance, since the very post that he was holding was converted to be that of FTE- 2 and a specific order was passed holding that he was entitled for allowances. Admittedly, the order dated 31.04.2014 does not indicate that he would be entitled for special allowances only if he discharges the duties of FTE-
2. In other words, once the petitioner's appointment was converted and a specific order was passed holding that he was entitled for special allowances by virtue of his post being re-designated as FTE-2, these allowances cannot be withheld or recalled. Consequently, it is held that the petitioner would be entitled to special allowances attached to the post of FTE-2 from 31.01.2014 and withholding of these allowances would be illegal and that the ADA would, therefore, have to pay the allowances prescribed to the post of an FTE.
64. As regards the claim for promotion, the ADA has framed Recruitment and Promotion Rules in the year 1990. Clause 6.4 provides for departmental promotion for
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NC: 2024:KHC:25226 WP No. 9687 of 2020 C/W WP No. 9688 of 2020 Scientific and Technical Staff. It stipulates that departmental promotions should be made from amongst the officers possessing the experience as given in Schedule-IV and the selection of officers for promotion should be made in accordance with the manner stipulated thereunder, on the basis of individual merit. It is stipulated that the Assessment Board meeting should be convened once a year and the first step in the procedure of assessment would involve a screening process by a committee appointed for the purpose. It is also stipulated that the guidelines for screening would be prescribed by the Director General, ADA from time to time and those 'screened in' would be eligible for further assessment/interview.
65. Clauses 6.4 (d), (e), (f) and (g) would be relevant and the same are extracted as under:
"6.4(a) ******
(b) *****
(c) *****
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NC: 2024:KHC:25226 WP No. 9687 of 2020 C/W WP No. 9688 of 2020
(d) All Scientists/Engineers of the Society who have completed the prescribed number of years of service in the grade shall be eligible for consideration for assessment for promotion to the next higher grade under a Flexible Complementing Scheme.
(e) In evaluating the suitability of the officers for promotion, the Assessment Board shall take into consideration their performance, merit, seniority etc, as applicable. The selection shall be on the basis of written test/skill test wherever prescribed, confidential report and interview. The Assessment Board shall draw up a list of officers who are assessed as fit for promotion to the next higher grade.
(f) Recommendations of the Assessment Board after approval by the competent Authority shall be implemented from July 01st (FN) of every year. Officers who are away on leave on that date shall assume charge in the grade to which they are promoted with effect from the date they resume duty but this shall not affect their date of selection and towards counting residency period for the next review for promotion. In so far as persons undergoing training in India or Abroad are concerned and if they are sponsored by the Society, the candidate will be interviewed on his/her return and if found suitable, will be appointed with retrospective effect had he/she not proceeded on training subject to the following conditions being fulfilled:
(i) The period of such training is treated as duty.
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NC: 2024:KHC:25226 WP No. 9687 of 2020 C/W WP No. 9688 of 2020
(ii) They have been screened and approved for promotion to the next higher grades by an Assessment Board/Competent Authority. g. In regard to promotion of officers to the higher grades under the Flexible Complementing Scheme, the required number of posts in the grade shall automatically stand upgraded within the total number of posts sanctioned for the Scientific/Technical category."
66. As could be seen from the above, all Scientists/Engineers who had completed the prescribed minimum number of years of service in that grade would be eligible to be considered for assessment for promotion to the next higher cadre under a Flexible Complementing Scheme.
67. As could be seen from the above, under the Flexible Complementing Scheme, the required number of posts in the grade should automatically stand upgraded within the total number of posts sanctioned for the Scientific/Technical category. In other words, there is a specific rule prescribed for promotion and said rule also stipulates that for evaluating the suitability of the officers
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NC: 2024:KHC:25226 WP No. 9687 of 2020 C/W WP No. 9688 of 2020 for promotion, the Assessment Board should take into consideration their performance, merit, seniority, etc., as applicable and the selection should be made on the basis of written test/skill test wherever prescribed, confidential report and interview. There is no stipulation of securing any predefined minimum marks in the interview or for that matter the conducing of an interview for promotion to the post of FTE-3 under the Personnel Policy.
68. It may also be pertinent to state here that the ADA while communicating the refusal of promotion to the petitioner on 24.06.2016 stated that the case of the petitioner would be considered for promotion on completion of five years from the date of appointment as FTE-2, subject to the condition that APAR grading should be 85% average or above. Thus, if the petitioner had secured the APAR grading of 85% and above, he would have to be considered as being suitable for promotion. The condition of requirement of securing 85 marks in an interview is not stipulated either in the statutory rule or in
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NC: 2024:KHC:25226 WP No. 9687 of 2020 C/W WP No. 9688 of 2020 the guidelines framed in exercise of rules. It is, therefore, clear that the recommendation of the Assessment Board that the petitioner was not fit for promotion since he had not secured the prescribed 85 marks in the interview cannot be tenable.
69. As already stated above, since the ADA itself had stated that the case of the petitioner would be considered for promotion if he had the APAR grading of 85% average and above, it is obvious that the petitioner ought to have been promoted upon completion of five years of residency.
70. It is also specified in the Office Memorandum issued by the Ministry of Personnel, Public Grievances and Pensions under the Department of Personnel and Training stipulating the guidelines on DPC dated 10.04.1989 in relation to the procedure to be observed by DPC as follows:
"5. Each Departmental Committee should decide its own method and procedure for objective assessment of the suitability of the candidates. No interviews
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NC: 2024:KHC:25226 WP No. 9687 of 2020 C/W WP No. 9688 of 2020 should be held unless it has been specifically provided for in the recruitment rules for the post/service. Whenever promotions are to be made by the method of 'Selection' by DPC and the administrative ministry desires that an interview should form part of the selection process, necessary provision should be made in the recruitment rules."
71. As could be seen from the above, interviews can be conducted only if they are specifically provided for in the Recruitment Rules (short for "the Promotion and Recruitment Rules, 1990") for the post. Admittedly, there is no rule which provides for an interview to be conducted for promotion to the post of FTE-3 and, thus, the ADA could not have conducted an interview to assess the suitability of the petitioner.
72. In fact, said clause also stipulates that if promotions are to be made through selection by the DPC and the administrative ministry desires to conduct an interview as a part of the recruitment process, a provision to that effect should made in the Recruitment Rules. The implication of this is that even if the DPC and the Ministry desires to
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NC: 2024:KHC:25226 WP No. 9687 of 2020 C/W WP No. 9688 of 2020 conduct an interview, it can do so only if a provision is made in the Recruitment Rules. Admittedly, no such provision is made in the Recruitment Rules providing for an interview and therefore the conduct of the interview would be contrary to the Recruitment Rules.
73. The ADA has also put forth the contention that the period of five years would have to be construed only from the date on which the post of the petitioner was re- designated. This contention, as already held above, cannot be accepted. If the appointment to a particular post i.e., Scientist/Engineer 'F' is converted by the ADA to that of FTE, it is obvious that this appointment would relate back to very date of appointment and not to the date of re- designation, though the entitlement for allowances would only be from the date on which the formal order of redesignation had been passed. In this view of the matter, the case of the petitioner would have to be considered for promotion to the post of FTE-3 upon completion of five years from 29.04.2011 and since the petitioner had the
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NC: 2024:KHC:25226 WP No. 9687 of 2020 C/W WP No. 9688 of 2020 requisite of 85% of the APAR grading, he would have to be considered as promoted to the post of FTE-3 with effect from 29.04.2016.
74. The respondent, on one hand, contended that the promotion rules applicable to the post of Scientist/Engineer-F is applicable to the petitioner since he holds an equivalent post i.e., that of an FTE-2, but on the other hand contended that the residency period for the purpose of promotion would not be considered upon redesignation of the petitioner to such equivalent post. This practice adopted by the respondent is improper and irrational.
75. As a result, the case of the petitioner for further promotion to the post of FTE-4 shall be considered on completion of three years from 29.04.2016 i.e., 29.04.2019. The petitioner would also be entitled for payment of allowances that was granted to him under the order dated 31.01.2014 and withholding of these allowances would be illegal. Consequentially, the ADA
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NC: 2024:KHC:25226 WP No. 9687 of 2020 C/W WP No. 9688 of 2020 would have to pay allowances, from the period for which it is withheld, within a period of three months from the date of receipt of a copy of this order.
76. The reliance placed on the Confidential Note dated 03.10.2017 to contend that the petitioner was not fit for promotion cannot also be accepted. In this note, it is stated that the petitioner does not possess any unique skills of qualifications which qualify him for his employment as FTE at the NFTC. It is also concluded in this note that the posting of the petitioner as an FTE in the NFTC is not acceptable, and as the commissioning of the SBTF was complete, the requirement of an FTE to undertake tasks no longer exists. This note, thus, indicates that nearly 3 years after the Governing Body of the ADA approved the converting of the appointment of the petitioner from Scientist/Engineer F to FTE, the confidential note seeks to nullify the conversion. This is obviously illegal and impermissible since the decision of the Governing Body cannot be questioned by an authority
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NC: 2024:KHC:25226 WP No. 9687 of 2020 C/W WP No. 9688 of 2020 (Project Director) who is subordinate to the Governing Body.
77. It is without any doubt clear that by virtue of conversion of the petitioner's appointment from Scientist/Engineer 'F' to that of FTE-2, the petitioner would have to be considered as FTE-2 and he ought to be assigned with duties of FTE-2. Even if he is not assigned with the duties, he would nevertheless be entitled for allowances attached to the post of FTE-2.
78. Accordingly, W.P.No.9687/2020 is allowed in part.
79. As for W.P.No.9688/2020 filed for a direction to consider the representation submitted by the petitioner with regard to fixation of pay and deduction of pension, the order passed in W.P.No.9687/2020 would cover the issues insofar as salary and allowances are concerned.
80. However, as for the deduction of pension amount, it is to be noticed that the petitioner, when offered the appointment to the post of Scientist/Engineer 'F', was
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NC: 2024:KHC:25226 WP No. 9687 of 2020 C/W WP No. 9688 of 2020 imposed with a specific condition, and the same reads as follows:
"(c) In the event of your release from Naval Headquarters on pre-mature retirement, you pay on joining ADA will be fixed as applicable to re-employed pensioners as per the provisions contained in DOPT OM No.3/1/85-Estt(PII) dated 31.07.1986. You will be entitled to draw other allowances a per Central Govt rules."
81. As indicated above, it was made clear to the petitioner that fixation of pay was as applicable to re- employed pensioners as stipulated in DOPT OM No.3/1/85- Estt(PII) dated 31.07.1986. The ADA, therefore, has rightly contended that as per said Official Memorandum dated 31.07.1986, a portion of the pension would have to be deducted from the pay and, therefore, this contention of the petitioner that there should be no deduction in the salary cannot be accepted.
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NC: 2024:KHC:25226 WP No. 9687 of 2020 C/W WP No. 9688 of 2020
82. In fact, in the fixation of pay, the ADA has taken into consideration two components of pension -- one is the excludable pension and the other is the non-excludable pension -- and it has proceeded to take only the non- excludable portion of pension while fixing the pay of the petitioner. Since the petitioner is unable to establish that the Official Memorandum dated 31.07.1986 does not permit a situation that no pension is to be deducted, his case for a direction being issued to the ADA to not deduct the pension that he was getting from the Navy cannot be accepted.
83. WP.No.9688/2020 is accordingly dismissed.
Sd/-
JUDGE PKS List No.: 1 Sl No.: 92