Karnataka High Court
Union Of India vs Ravikala U Kamath on 23 December, 2010
Bench: V.G.Sabhahit, K.Govindarajulu
"-E'.1I3.Y'DI[RE'CTOR 1 IN THE HIGH COURT OF KARNATAKA, BANGALORE DATED THIS THE 23R" DAY OF DECEMBERH2f):.:1i'O._V' PRESENT Q C OOCGE THE HON'BLE MR. JUSTICE v.G.SABH_fAHIT:j: O 3 A AND C A A THE HON'BLE MR.JUSTI_CE WRIT PETITION No. OE O BETWEEN: 1. UNION OFINDIA, V ; BY ITS SECRETARY," MINISTRY;CE,ENVIRONM':EN*fC"'G.i_"- .. & A PARyAvA.RAN«:_;I_3HAv'A.N; ~ cc:-7'0 COMPLEXg:}V ' " LOOI ROAD',c~, 'A NEW. DELHI 2. I|\EDIAN"'PLYWG-OAE:a_INOUSTRIES _f;iE'SEARCH' SITRAINING INSTITUTE BAG NO'.'v--22'?3, TUMKU_R«ROAD, " BAN.GALORE 560 022 A H PETITIONERS (BI; SRI +<ALvAN BASAVARA3, ASSISTANT SOLICITOR GENERAL, FOR M/S. ASHOK HARANAHALLI, ADvS.,) 'SMT RAVIKALA u KAMATH, I A -.w/O SR1 UP KAMATH AGED 45 YEARS WORKING AS TECHNICAL OFFICER, SORIT DIVISION I¥7--'IRTI, TUMKUR ROAD, BANGALORE 560 022 (By SR1. A.R. HOLLA, ADv., C/R1) _ RE THIS wR:T PETITION IS FILED UNDER AVR.TIaéLE'"s 226 & 22? OF THE CONSTITUTIQ'NA"OF.IA_N"DIA."i§§iAYIN'G TO QUASH THE ORDER DT. 25.09.2IOQ3~--_if5ASSIEQ°i~E\3 232/2003 VIDE ANi\¥EXUF§E--»._:"Af THE'? CENTRAL ADMINISTRATI\[IE"' -.I",_I_"'RIE'.-,l_JI\1Ai_fl,A"'*-BANGALORE BENCH, BANGALORE," " "-.HAVIvN(3"§ BEEN HEARD AND RESERVED i%Oi'R[IO,ARD_E'Rs' AND COMING ON FOR PRONOU'NCEMEIN.TV'*Q'F'.:C3RDER THIS DAY, SAEHAHIT J, MA-DE THE FO'LLOW_I,NG: I~ an *_ ORDER \IJfit,:A.petition is flied by the respondents in O.A.
NO',-.232,/-2f)'_OT3AIbeing aggrieved by the Order passed by the V"'»Centra€.._A:' Administrative Tribunai, Bangaiore Bench, VIA'?-.,B'a.n§-aiore, (hereinafter sailed 'the Tribunal') dated __2§5.09.2003 as per Annexure 'A' to the Writ petition. '2 E
2. The respondent herein, who was wor§<ihg"'--as Technical Officer instituted an originai appiicai-ion::éTse"e'-firing'H forthefoliowing reiiefs: _ M "(i) To quash the torrierrio"A_'d.ated.._t_' 08.10.2002, Annexure:'A7'V41so':far it .>'p_eArtains to denial of promotion-_1t_'o~~..Vthe .a;:pli1can~t FCS, i i
(ii) to di'rer;t.'the {reVsb'0Vnd:'ents to grant the benefit of promot§.0rir'_to:»the-Vapoivi-cant under thef+?fi:S'.'(i5iexibie.V»'C0nrinie1n'ienting Scheme) in Ztierrns dot.'j'~-Niernoiwrarsdainin dated 04.02.1994, Arm_e'><:13re :_a'n.d""c0nsequent|y, extend her the i:i'enVefi1:_of the pay scale of 3 8000- 2j5-123500~.,~1;th-effect from 01.01.2002, A {i:i'Vi).--:" direct the respondents to impifierfient the terms of OM. dated ,.24.:O7.1990, Annexure 'A1' without delay and
(iv) to grant such other relief deemed fit, having regard to the facts and circumstances of the case."
4 It is the case of the respondent herein in the appflcation that on 17.03.1997, the applicant who was Senior Library Attendant in the scale of 3"
E8--7S--2900 {Group 111(2)] wast.premoteeii'ae';.rechnicfaVi""
Officer with effect from o1.o1.1:9'97i."_i_'m'the "pay titties; % 2oo--6o--2300-Ea-75-32oo'§1ooV--35oo [oro't.§t§ f5(3)j...' The said promotion was gran_teudf.t_o"'t.he .a'p'piicar1t§ in terms of the provisions coVn'taiié'ned'-- Memorandum No.Adm/ss/94'jdeted''''ozi..fi2._i9'§;>.4i'' \ A?) by which fvitficheme (FCS) for career.timph,aif'erbi%se_nt scientific and technicai staff .to.§;o.1o;1992 and introduction of the ICFRS staff in the state of ? 22j?.:00+f4000 aboive, appointed on or after 30.10.1992 .9 It is further averred that the second ~re's.pon'de[_nt_ which the applicant is working is an aut'ono--mou"s body. According to the FCS for career 'imp_ro\V/ement in respect of scientific and technicai staff 7ap'pointed prior to 30.01.1992, the members of such staff 9 V' "are entitied for four promotions. The appticant had already earned two promotions and the third promotion, according r §'<.,j...'. 3; .-
{ 3 5 to her, was due on 01.01.2002. The applicant staked her claim for 3'" promotion under such scheme by means of representation dated 11.09.2002, which came ;to be rejected vide impugned order dated 08.10.2002.'..(?$.ii'iiex.iir'-ep 'AT to the application) on the ground that the applicant for promotion through"'a'sises'smen:t'"o_nde'l€'.~th'ey FCS cannot be accepted since Government of India is' applicable only to Svciexntists""'a--n:d-- 'the matter regarding uniform implementation' ii)rV0\/_i«siitiV'i_*..s"'contained in the Official Memorariaiim ij:l'0.V':ié;i:(::1)/VI'C:r'_S§ Vaatéd 24.07.1990 as per c;j:_., M'.F,VV'0..'M..:"l\iy0;'iZ?i:i;'3/'2-001~IC dated 21.02.2002 is under e><la~r:jinavti0'n."'Tiieirefore, the application was filed by the .rjespionden't therein for the above said reliefs. application was resisted by the res'pond..¢nts"V' averring that the impugned order dated rejecting the claim of the applicant for promotion under PCS is strictly in accordance with law and 'there is no illegality or arbitrariness whatsoever. The FCS is not applicable to the applicant and the same is 6 applicabie only to Scientists. The appiicability of Qfficiai Memorandum dated 24.07.1990 in the case:'*.o:f..1_0't--he applicant is under examination as the impii_eetio'h"-Ejf---.t:i'*:--eia same wouid curtail some of the _be.ne4fits_~'of'"t'hé§.e'i3f?4?ireanVt""
and shall be detrimental to;":.'th.,'e"r~';ap0pL!iC8:nt.:V' representations made by'0._v't.gr.1..e app:!ica_nt.iAirigppm_l§9ee:3._> responded by the officiai mem.oVra.r_ada.i»m dated_O§3ff10.2002. Therefore, the respon'd--eints"--ha{ve for dismissai of the app!ication._*- ._
4. The i}:i7ri"'pu.n'ai,1;a'fter'_"cor:si'd--ering the contentions of thegiearned°:o~u::nsel'-fo'i~-the parties and scrutinizing the materiai 'adduced _bayV.'t:ne"'*.parties before it, by the impugned ordeirtvdated 2S~~...09.20iJ3, heid that the applicant was given promotion treating her to be a technical ~staffra'r:d'_*'_v.by'V~0.;order dated 17.03.1997, she was promoted frorn the 'post of Senior Library Assistant to the post of V *i"e.c4hnic'ai officer under the same FCS scheme visuaiized by 7t:h'e"A'Officiai Memorandum dated 04.02.1994 (Aranexure 0 " A2' to the application) and wherefore, since appiicant was a member of scientific and technical staff of 7 respondent No.2 appointed prior to 30.01.1992, the applicant was entitled to the relief sought for and accordingly, allowed the application with a directioiito the respondents to take appropriate decision in respectl:'e.ff'the claim for third promotion under FCS SCheii'ie__A'\.iViStJ4Aél§.:§.'.g:'t"(iA1 Official Memorandum dated 04I0.2;'n'."fl_994 _frotii*.:t1iie""date R eligibility within a period of three'e.mo'nLh:s :t'iie"Vd'ia.te::,o:f receipt of the certified of the aggrieved by the said of__ the «-Tirlibuivtial dated 25.09.2003, this Writ 'petitgio-n respondents in the applicationg V if if if "It is" aye'ri=e.d'--..i.inVthe writ petition that the order pas}lsedii.by thefifvribuiiial allowing the application is iiiegal .' and lifiiableto be set aside as the Tribunal has committed ~.aii..gerVroi'_"i.n directing the respondents to consider the claim of."the5applicant for promotion under the FCS scheme as if " per theofficiai memorandum dated 04.02.1994 (Annexure ). The Government of India has already accepted the "recommendation of the Fifth Pay Commission, wherein it is recommended that the FCS should be confined only to 8 persons hoiding Scientists and Technologists, who are holding scientific group 'A' posts. A decision has already been taken and the Government of Endia has aiso directed that all the earlier ruies for promotion of scyientificj-.oa'nid technical staff appointed prior to 30.10.1992' scrapped with immediate eff'ect"-vid'e vdiated 25.08.2000. The Board of o¢v«¢rli~e§%s 10»f.iAy'.t'h.e«. petitioner -- Institute are botirid by" tneitoipvléiiimeint of"
India direction and they have"'al~re'adyi..forwiard--od-nnew rules (Annexures L1 and L2 to the "and the same are pending consideratiorij i:3:eforei_At~i'f1e.._VGoveVrnment. Having regard to thVeVl'faoir,vthat-.the__old FCS scheme has been done away iwithi in'*so".fa.r':"'ais4'the persons other than those holiiijiingai. scientificv posts are concerned, the question of 'considseirind"~tVhe case of the respondent under the said .ys'c.hVern'e:"'i;;ouVl.d"not arise. The second petitioner -~ institute fulnctio'n.'vLi'nder the overail control of Ministry of lrfinvirolnment and Forests and the recruitment rules can be framed after prior approval of the Government of "India. In the Board of Governors meeting, the Board has already accepted the recommendation of the V pay «}s'- 2 9 Commission. The effect of the said acceptance ilvottld amount to discontinuance of the old system in the persons, who are not hoiding scientific posts ~ rules have been framed and are _awa_i_tingfth'e"--appro\fal of"
the Government of India. Therefore;t~the'~re'l"nan:d Dassed by the Tribunal is liabl.e"'t.o be asidetl
6. We have heard the'=«'.ear_ned 'As._sistant; Solicitor General appearing p-etitio,n'e.tslrespondents before the Tribunai) an_d the_.i._earned._V cou"n's,e'l":Vv.aVp*pearing for the respondent re th'e..:Tribu~nai).
__ .The_..,_i'ear'n,ed,..__ Assistant Solicitor General appearingélforlthee'petitioners submitted that the r-"cs visualized by'th_e'offic'ai.memorandum dated o4.o2.1994 dlliscontintied after the recommendation of the 5"' i?a»y_ has been approved and the said scheme would .n'ow.'«:'be applicable only to the Scientists and not to the app-licant, the respondent herein and the order passed it 'gby--the Tribunal is tiable to be set aside. He has produced
-»-cfopy of the recruitment Rules and the memorandum of i'\,é~" 'E?' 10 association and the Regulations of the second respondent
- Institute. The learned counsel further submitted that the Tribunal was not justified in extending the FCS to the applicant --- respondent herein and whereforei:'.t'he impugned order is liable to be set aside.
8. The learned counsel :_-~apfpea,ringj*- io;«L vthe respondent -~ applicant submitted thatllthe the Tribunal is justified and the'-same doestnot suffer from any error or illegality 'asfto 'call;for~--.i_ntérference in this writ i3etition. ' * We careful consideration to the cor_itent.ions "o-iiwitiae iiearned counsel appearing for the . 'pa_rtEesiand'scrutinized the material on record. The scrutiny of the material on record would it * clgflarlyy" show that the respondent herein (applicant before 'lithe: Tribunal) entered into service with the second "petitioner (respondent No.2 before the Tribunal) -- Indian Plywood Industries Research and Training Institute as '1 L '5 11 Junior Technical Assistant on 21.03.1986 in the pay scaie of Q" 425 to ? 700. As per the existing ruies, the appiicant was promoted as Senior Library Assistant Group II1_..{__Z) in the pay scale of %" 1640-60~2600-EB~~75~2900 from 01.01.1991 and again promoted as Group III (3) in the pay scale Official Memorandum dated "fig. applicant was revised froni.,:vL'"'t~i.rne itoi__Linié.'as"'"pei' the'-it recommendation of the Pay vAC.ornmis.sion.' "it-is Vciear from the material on record"thiat.tn,e 5re.sponfden.t_~ applicant has claimed promotion tinder*th'e 'ion the basis of the Official'cwiewrriorairiddrii_ dated 04.02.1994 as per Annexure_ petition. The applicant --
resp.nndent r;erein" stibrnitted an application on 11.09.2002 . as"3oer."i=Ani'nexureV'A0' to the application to the second stating that she is due for assessment of pii'»o:motVioni':~.i.since January 2002 and her request for assessment of promotion may be considered as per the e;<i.s'ting promotion poiicy of the institute or in the alternative, to ensure uniform impiementation of provision of OM. No.19(1)/1C/86 dated 24.07.1990. The Tribunai has proceeded on the basis that when the eartier directions i A 'E,j.;.§i,<'3 'Q;
12 were given on the basis of the order dated 04.02.1994, which was in existence and applicable to both Scientists and Technical staff, the third promotion could riot.,be denied to the applicant -- respondent herein impugned directions. The Tribunal has o_v'er:I.ool§'ed lithe', 0' material fact that the Government Soft india, of. Finance, Department of Expenditure has issu_ed'va'n memorandum on 21.02.2002'--vi.,,.foir payi' scaie recommended by the 5F"'Centra'i"i.Ffay ('Zommission and that resoiution was passed of the second respondent -5, rr'ecommendation of the v'i.evvSiof the acceptance of the recomn1.enidation"of~.ttie_:iVi'F».ifti1 Central Pay Commission, by orderof the CV_3'ov,eVrnn-1_eh'ii'iVof India, Ministry of Environment arvi'd5'i"o,_'restsA, dated'---08.02.1999, the FCS has been modified an'.dith'e:_sia,m,e' has been confined to Scientists and further, .i't»'i's ciai:Vifi_e.tithat subjects such as Sociology, Library Scien.ce,.:_ 'Documentation and Mtiseology have been ie$<ic«.l..uded from the purview of the new FCS. Therefore, the envisaged under the memorandum dated 04.02.1994 0 "is no more available to the applicant -- respondent herein and in the endorsement that is given by the second 13 petitioner - institute to the applicant - respondent as per Annexure 'A7' to the appiication dated 08.10.2002, it is cleariy stated that 2 the FCS is not applicable to-.gthe respondent as she is a member of the Technicai...§L_aff' FCS would be available only to the Scienti'5_tsfE_I'nvd alternative prayer of the respVon'den--t .;for"'«__unif:orm; implementation of the provisions 1c_o.ntain'e»_d"».in. Memorandum l\io.19(1)/IC/86'*v.,rd'awted under"? examination. in viewvcsfthe 'fact-that"-vthe F«CS'-envisaged in the Memorandum dated applicable to the technical staff.a:'nd_ to G-oi;re"rnment of india's decisionimiirrrp:r5e_Vme3ht'in:g'the recommendation of the Fifth Central-. 'Pay separate Rules, namely, Recru_itment andV'Vi3ro--mo~t"iVon Rules in respect of Technical {_Ainn_exure"'L~2---'«to the application) have been framed _' ''the-.:s'ec'ond--_petitioner -- Institute, which Rules had not been fra'rnTedr1'when the matter was pending consideration befioreviitheé Tribunai, it is ciear that the impugned order 2 ipasseds by the Tribunai allowing the original Application on the ground that since the earlier two promotions 0' "were given to the applicant -~ respondent herein under the FCS envisaged under the Memorandum dated 04.02.1994, 'ii, ii 14 her ciaim for third promotion could not be denied under the said scheme is illegal and cannot be sustained and is liable to be set aside. Accordingly, we hold that_ltl_:3'etw_rit petition is entitled to be allowed and pass order:--
The Writ petition is allowed. T'raev"order,pass,e_d tide Central Administrative Blaancgellaiorelis Bench, Bangalore, in O.A. No.'2'32/zoolsftested..s25.o9[2oo3 is set aside and O.A. No.232/2O(')3l_Visldism,l-5s'eAd_;:l__'However, there shall be no orgle:*«.a's--to cost th«is"\}i1_r'--itibetition. Sdfg JUDGE It ..... Sdf;
FUDGE V' "sn"":a