Central Administrative Tribunal - Ernakulam
Geological Survey Of India Scientific ... vs Union Of India on 26 October, 2016
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.283/2013
Wednesday, this the 26th day of October, 2016
CORAM:
HON'BLE Mr. JUSTICE N.K. BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Ms.P. GOPINATH, ADMINISTRATIVE MEMBER
1. Geological Survey of India Scientific Officers' Association,
represented by its Vice President A.C.Dinesh,
S/o.Sankaran, Sr.Geologist, Operation West Coast I,
Marine & Coastal Survey Division, Geological Survey of India,
Having its Registered Office at Mangaladevi Temple Road,
Pandeshwar, Mangalore - 575 001.
Residing at GSI Quarters, Mangaladevi Temple Road,
Pandeshwar, Mangalore - 575 001.
2. Dr.R.Sadasivan Nair, S/o.N.Raghavan Nair,
(Retd. Deputy Director General,
Geological Survey of India, Unit Kerala,
Manikanteswaram, Trivandrum).
Residing at Surabhi, VP.7/272A (B-4/1), Chitranagar,
Vattiyoorkavu P.O., Thiruvananthapuram - 695 013. . . . Applicants
(By Advocate Mr.T.C.Govindaswamy)
Versus
1. Union of India
represented by the Secretary to the Government of India,
Ministry of Mines, Shastri Bhavan, New Delhi - 110 001.
2. The Secretary to the Government of India,
Ministry of Personnel, Public Grievances & Pensions,
Department of Personnel & Training,
North Block, New Delhi - 110 001.
3. The Director General,
Geological Survey of India,
No.27, Jawaharlal Nehru Road,
Kolkata - 700 016. . . . Respondents
(By Advocate Mr.N.Anilkumar,Sr.PCGC [R])
This application having been heard on 23 rd September 2016, the
Tribunal on 26th October 2016 delivered the following :
ORDER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER The 1st applicant is the Geological Survey of India Scientific Officers' Association represented by its Vice President. The 2 nd applicant is a member of the 1st applicant Association and he also happens to be a retired Deputy Director General of the Geological Survey of India. In this O.A the Association represent 32 Scientific Officers of the Geological Survey of India, an attached office of the Ministry of Mines enlisted in Annexure A-1. The reliefs prayed for in the O.A are as follows :
1. Declare that the term 'promotional norms' in para 3 of Annexure I of Annexure A-3 cannot include the residency period for promotion from one post to another, as provided for in the Recruitment Rules, for such promotions in the organized Group A cadre of the Scientific Officers of the Geological Survey of India.
2. Declare that the applicants are also entitled to the benefit of non functional higher pay scales on the lines at par with the organized Group A Officers of the Survey General of India, Central Public Works Department etc.
3. Direct the respondents to grant the applicants the benefit of non functional higher grades in the light of declarations (i) and (ii) above, duly granting the applicants the benefit of fitment at par with those in the IAS cadre, senior by two years or more, who joined the Central Government on or after 1.1.2006.
2. The Scientific Officers of the Geological Survey of India (GSI for brevity) constitute an organized Group A cadre. The 6 th Central Pay Commission in its recommendations held :
'whenever any IAS officer of a particular batch is posted in the Centre to a particular grade carrying a specific grade pay in pay bands PB-3 and PB-4, grant of higher pay scale on non functional basis to the officers belonging to batches of organized Group A Services that are senior by two years or more should be given by the Government.'
3. This recommendation was accepted by the Government with a further rider that this would also be applicable to the Indian Police Service and the Indian Forest Service in their respective State cadres for which the relevant cadre controlling authorities will issue the orders. The acceptance of the recommendations of the 6th CPC, as mentioned above, can be seen from the Government Resolution bearing No.1/1/2008-IC dated 29 th August 2008. In purported implementation of the recommendations, A-3 order was issued by the Government of India. However, as part of the terms and conditions for grant of higher pay scale on non-functional basis as ordered by the DoPT, it was stated in para 3 of Annexure I of that order as follows :
'All the prescribed eligibility criteria and promotional norms including 'benchmark' for upgradation to a particular grade pay would have to be met at the time of screening for grant of higher pay scale under these orders.'
4. To facilitate implementation of A3 orders, A5 and A6 orders were issued by the Government indicating details of officers belonging to the Indian Administrative Service who have been posted in the centre in the various grades of PB-3 and PB-4 with effect from 1.1.2006.
5. Though the orders of the DoPT were implemented in full in other organizations like Surveyor General of India, Ministry of Science & Technology, CPWD etc., the benefits were not given effect to in the GSI, resulting in an Original Application being filed before the Jaipur Bench of the Tribunal. During the pendency of the said O.A certain benefits were given in purported implementation of A3 orders of DoPT. However, while implementing the same, the expression 'promotional norms' appearing in para 3 of Annexure I of A3 was interpreted to include the residency period in a functional post. Career advancement/promotions in the GSI, is vacancy based. Para 3 of Annexure I of A3 states as one of the terms and conditions for grant of higher pay scale, 'All the prescribed eligibility criteria and promotional norms including 'benchmark' for upgradation to a particular grade pay would have to be met at the time of screening for grant of higher pay scale under these orders.' The term 'promotional norms' used above is understood to have been interpreted by the 1 st respondent to include a residency period for promotion from the lower post to the higher post notwithstanding the residency period in existence for grant of non- functional higher grades. For example, in the normal course, a Group A officer in the junior time scale, for being promoted to the senior time scale, is expected to undergo a residency period of 4 years, which means, according to the respondents, an officer belonging to a junior time scale can be treated at par with an IAS officer 4 years junior who joins the Centre later. Similarly, the residency period for promotion from the senior time scale to the Junior Administrative Grade is 5 years and going by the norms adopted by the respondents to be eligible to be treated at par with an IAS officer who joins the Centre and to be granted the Junior Administrative Grade, one has to fulfill a minimum period of 9 years. As a matter of fact, those who are working in GSI will not get the benefit of promotion to the senior time scale or to the Junior Administrative Grade immediately on completion of the prescribed period of 4 years/5 years, as the case may be, since the promotions are vacancy based and, normally, it takes about 10-15 years for a Scientist of the GSI to get the senior time scale and another 14 years to get the Junior Administrative Grade; whereas in the IAS cadre, promotions are time bound and officers belonging to that cadre would get their promotions as a matter of course on completion of 4 years/5 years etc. as indicated above. When it comes to the GSI, it appears, going by the interpretation given by the respondents, a junior time scale officer would, without hitch, get his non-functional senior time scale on completion of 6 years from the date of his initial appointment, but for grant of the Junior Administrative Grade, the period of 5 years is counted not from the sixth year or the date on which the non-functional grade was given but only from the date from which the promotion to the functional post of senior time scale was granted on completion of 10-15 years, as indicated above. In contrast, going by the Government of India norms, an officer in the organized Group A service should get his JA grade also on completion of 11 years of his service as a matter of course.
6. Applicant submits that if the residency period in a promotional post is required to be fulfilled for satisfying the promotional norms mentioned in para 3 of Annexure-I of A3, the very object of the recommendations of the 6th CPC and the directions of the DoPT would be badly defeated. The fitments in higher scales as directed by the DoPT are only on non-functional basis and, in fact, identical terminology appearing in the order dated 9.8.1999 (Government of India, Department of Personnel & Training OM bearing No.35034/1/97-Estt.(D) dated 9 th August 1999) of the ACP Scheme has been clarified not to include the residency period meant for promotion. The said clarification would clearly show that the expression 'promotional norms' for the purpose of non-functional promotions/the financial upgradation, does not include the residency period on functional basis applicable for promotions. During the course of arguments one issue which arose was whether the Scientific Officers of GSI would constitute an organized Group A service. In this connection, a copy of the order of Bangalore Bench of the Tribunal in O.A.No.404/2009 dated 19.3.2012 is produced by the applicant. The order in O.A. was confirmed by the Hon'ble High Court of Karnataka in its judgment in W.P.No.45591/2012 (S-CAT) dated 21.4.2014. The order of the Bangalore Bench of the Tribunal held that the Scientific Officers of the GSI constituted an organized Group A service. The findings of the Tribunal and the Hon'ble High Court of Karnataka have become final. It was the case of the respondents that GSI became an organized Group A service only with effect from the date on which the new Recruitment Rules, viz., the Ministry of Mines, Central Geological Group A Rules, 2010 was published in the Gazette. A copy of that Recruitment Rule has been produced by the respondents along with a Memo dated 8.9.2016 on 19.9.2016. Rule 3 of the said Rules dealing with the 'Constitution of service' reads as follows :
'(i) On and from the date of commencement of these rules, the Geology stream of the Geological Survey of India, a Central organized Group A service is hereby constituted as 'the Ministry of Mines, Central Geological Service Group A'.
7. A reading of the above provision itself indicates that the Geology stream of the GSI was a Central organized Group A service even prior to the promulgation of the new rules. Therefore, the contention of the respondents that the Scientific Officers of the Geology stream of the GSI did not belong to organized Group A service cannot be countenanced. This is a matter concluded by the Coordinate Bench of the Tribunal at Bangalore and is not required to be reagitated.
8. The recommendations of the 6th CPC in para (i) reads as follows :
' Whenever an Indian Administrative Services Officer of the State of Joint Cadre is posted at the Centre to a particular grade carrying a specific grade pay in Pay Band 3 or Pay Band 4, the officers belong to batches of Organized Group A Services that are senior by two year or more and have not so far been promoted to that particular grade would be granted the same grade on non-functional basis from the date of posting of the Indian Administrative Service Officers in that particular grade at the Centre.'
9. Hence the benefits to the officers belonging to the batches of organized Group A service that are senior by two years or more and who have not so far been promoted to that particular grade, 'would be granted the same grade on non-functional basis, from the date of posting of the Indian Administrative Service Officers in that particular grade at the Centre' to the applicants also is their argument.
10. The respondents in their reply statement submit that Group A posts in Geology stream of GSI prior to the notification GSR No.789 (Estts.) dated 29.9.2010 were classified as 'General Central Service' (GCS in short) and not as 'Organized Group A Service' and therefore none of the benefits which accrue to 'Organized Service' were extended to the officers of Geology stream and the NFSG posts (which are a component of JAG) were equivalent to 15% of the Senior Duty Posts in terms of DoPT's OM No.19/1/86-PP dated 14.8.1987. It was with the Notification of Recruitment Rules vide GSR No.789 (Estts.) dated 29.9.2010 that the Recruitment Rules for Geology stream conferred the status of 'Organized Service'. The new Recruitment Rules for Geology stream on organized pattern was published and implemented with effect from 29.9.2010 and thereafter the benefits of 'Organized Service' were provided from the date of notification of RR. The DoPT's notification dated 24.4.2009 and amendment thereof clearly stipulates that whenever an Indian Administrative Services Officer of the State of Joint Cadre is posted at the Centre to a particular grade carrying a specific grade pay in Pay Band 3 or Pay Band 4, the officers belong to batches of Organized Group A Services that are senior by two year or more and have not so far been promoted to that particular grade would be granted the same grade on non-functional basis from the date of posting of the Indian Administrative Service Officers in that particular grade at the Centre as per terms and conditions given in Annexure I (point No.3) to the said Office Memorandum which inter alia includes :
'All the prescribed eligibility criteria and promotional norms including 'benchmark' for upgradation to a particular grade pay would have to be met at the time of screening for grant of higher pay scale under these orders.'
11. It is further clarified in Annexure I of the said OM at (point No.10) that NFU to the next higher Grade Pay granted under the scheme is a fall back option only, to be applied in cases where officers have not been granted promotion to a particular grade in normal course. Therefore, all the prescribed eligibility conditions including the bench mark and residency period as in notified R.Rs etc. have to be met before the grant of NFU.
Moreover, clarification was sought from the DoPT-RR Division regarding the grounds claimed by the applicants in the instant OA; ie.
(i) Whether any special dispensation with regard to waving of the residency period have been granted to any other Organized Cadre under Central Govt.
(ii) Whether the condition as mentioned at Para 3 of Annexure I in DoPT's OM dated 24.4.2009 ie. 'all the prescribed eligibility criteria and promotional norms including Bench Mark for upgradation to a particular grade pay would have to be met at the screening for grant of higher pay scale under these orders' does not include the required residency period for granting NFU.
12. The DoPT - RR vide its note dated 9.10.2013 has in its reply to the clarification sought above submitted that in respect of para (i) it may be clarified that it is compulsory that all the prescribed eligibility criteria and promotional norms including 'Bench Mark' for upgradation to a particular pay and the residency period would have to be met at the screening for grant of higher pay scale under these orders. In respect of para (ii) it was clarified that DoPT has not allowed any special dispensation with regard to waiving of the residency period to any other Organized Cadre.
13. Thus Geological Survey of India is granted the NFU as per the Government of India's rules and regulation and if any other Central Government Organization are following any rules contrary to the extant policy of the Government of India, respondents argue that they are put to proof of their action. The notification of Geology Stream as an Organized Cadre was notified on 29.9.2010 with the notification of RR vide GSR 789 (Estts.) dated 29.9.2010 and hence the Scheme is applicable to Geology Stream only with effect from 29.9.2010. However, as a special dispensation obtained from DoPT the NFU was granted to Group A officers of Geology Stream who met the eligibility criteria with effect from 1.1.2006. The residency period till 28.9.2010 was as per old Recruitment Rules and residency period from 29.9.2010 is as per Service Rules notified on 29.9.2010. The Group A posts in Geology Stream of GSI prior to the notification GSR No.789 (Estts.) dated 29.9.2010 were classified as 'General Central Service' and not as 'Organized Group A Service' and therefore none of the benefits which accrue to 'Organized Service' were extended to the officers of Geology Stream and also the NFSG posts (which are a component of JAG) were equivalent to 15% of the Senior Duty Posts in terms of DoPT's OM No.19/1/86-PP dated 14.8.1987.
14. Respondent argues that the applicant is trying to make out a case by misleading the Tribunal by concealing the vital facts which are important terms and conditions for grant of Non-functional Upgradation to the officers. The conditions to be fulfilled for grant of NFU are as under :
(a) All the prescribed eligibility criteria and promotional norms including 'Bench Mark' for upgradation to a particular grade pay would have to be met (point 3 of Annexure I of OM). The word prescribed eligibility criteria includes that the applicant has to fulfill the requisite residency period as per the R.Rs to become eligible for the promotion.
(b) The point (i) of OM Dated 24.4.2009 clearly states the officers belonging to batches of Organized Group A Services that are senior by two years or more and have not so far been promoted to that particular grade would be granted the same grade on non-functional basis. The applicant is emphasizing on the two year seniority whereas the DoPTs OM clearly states that the parity effected should be with reference to IAS officers of the State posted at the Centre that are senior by two years or more.
(c) The NFU to the next higher Grade Pay granted under the scheme is a fall back option only.
(d) The point (i) of the OM dated 24.4.2009 is subject to the point (ii), the DoPT's OM dated 25.9.2009 (which has to be read with terms and conditions contained in the DoPT's OM dated 24.4.2009).
15. Respondents submit that it was not feasible to strictly apply 'batch' concept or 'length of service' as a criterion to grant NFU to the officer of Geology Stream. If 'Batch' parity is resorted to then it is not possible to adhere to eligibility criteria. This is because that Geology Stream was regulated prior to 29.9.2010 by the provisions of General Civil Service and the sanctity of 'Batch' or year of recruitment was distorted. As the promotion was vacancy based, it is not necessary that the entire Batch would get promoted at one go, some large Batches for eg. Batches of 1977, 1978, 1980 etc. were cleared in two or three DPCs for promotion from JTS to STS and also in subsequent promotions, thus creating real disparity amongst the officers of same batch recruited in the same year.
16. Heard the detailed arguments of the learned counsel for the parties and perused the written submissions made. The point raised in the plaint pertains to implementation of Non-functional Selection Grade to the officers of Central Geological Service Group A in the respondent organization. It is the contention of the applicants that their cadre has been denied the full benefits of NFSG unlike other organized Group A services. It has also been argued that the term 'promotional norms' cannot include the residency period for promotion from one post to a higher post as stipulated in the Recruitment Rules. The applicants therefore pray to direct the respondents to grant them NFSG disregarding the residency period.
17. The applicant argues that Government accepted the recommendations of the VI CPC that whenever any IAS officer of a particular batch was posted at the Centre to a particular grade carrying a specific grade pay in Pay Band PB-3 and PB-4, higher pay on non-functional basis could be granted to officers belonging to batches of Organized Group A Service that are senior by two years or more. Accordingly, orders were issued by the Government vide A-3 produced before us. We have perused the said document which prescribes as follows :
Whenever an Indian Administrative Services officer of the State or of Joint Cadre is posted at the Centre to a particular grade carrying a specific grade pay in Pay Band-3 or Pay Band-4, the officers belong to batches of Organized Group A Services that are senior by two years or more and have not so far been promoted to that particular grade would be granted the same grade on non-functional basis from the date of posting of the Indian Administrative Service officers in that particular grade at the Centre.
18. In Annexure I of A3 OM, the DoPT has stated that non-functional upgradation under the said orders will be based on empanelment and posting of a particular batch of IAS officers in the Centre and the said upgradation would not be linked to the vacancies in the grade as the upgradation was non-functional. The said OM also prescribes the conditions for grant of this non-functional upgradation ie. it should meet all prescribed eligibility criteria and promotional norms including 'Bench Mark' for upgradation to a particular grade pay at the time of screening for grant of higher pay scale. We observe that these terms are similar to those fixed for three upgradation on completion of 10, 20 and 30 years under the MACP Scheme by the VI CPC. A Screening Committee would assess the suitability of officers for such upgradation. As and when regular vacancy occurs, the officer will be considered for regular promotion in consultation with the UPSC by constituting a Departmental Promotion Committee (DPC) as per provisions of the Recruitment Rules. It is also clarified that non- functional upgradation to the next higher grade pay under the scheme is a fall back option only to be used when officers of a particular service have not been granted promotion to a particular grade in the normal course.
19. Thus financial upgradation does not do away with the fulfillment or meeting the criteria as in a normal promotion. The prescribed norms collectively constitute the eligibility criteria. This would broadly include a benchmark record of service, vigilance clearance and the minimum length of service put in by the candidate in the existing service as per provisions of the Recruitment Rules. The only difference is that non-functional upgradation has been delinked from vacancies. Thus an officer would draw the financial benefits of a higher post without being functionally placed in the higher grade, till regular promotion occurs.
20. The applicants in this O.A argue that since the non-functional grade is not vacancy based, a 'residency period' would be redundant. It is their argument that an officer of the service has to spend inordinate length of time if 'residency period' criterion is followed. The respondent submits that on this aspect a reference was made to the nodal Ministry ie. Department of Personnel. Department of Personnel had clarified that all eligibility norms would apply.
21. The purpose of residency has to be understood as part of the conditions for grant of non-functional upgradation ie. it should meet all the prescribed eligibility criteria at the time of screening for grant of higher pay scale including minimum length of service as prescribed in the Recruitment Rules. Grant of non-functional grade is intended to mitigate the hardship of not getting the regular vacancy based promotion but the conditions other than vacancy are required to be screened by the Screening Committee. When such a condition of time bound promotion as a part of Assured Career Progression (MACP) has been upheld by the judiciary in various judgments for grant of MACP non-functional grade pay for lower level posts, the exemption from the same for higher level posts appears to be unintended.
22. Prior to VI CPC, career progression in organized services was vacancy based. Whereas the residency period in each scale of pay pre-VI CPC would vary from service to service, there is some degree of relativity in the VI CPC recommendation and the Government's decision thereon to grant the non-functional upgradation in relation to a particular batch of IAS. This is intended to act as an equalizer, subject to the condition of eligibility for promotion. Whereas vacancy is not relevant, all prescribed eligibility criteria and promotional norms prescribed are applicable to non-functional upgradation.
23. The Bangalore Bench of the Tribunal in the order in O.A.No.404/2009 dated 10.4.2012 had addressed and settled the issue of the service being an organized Group A Service. Being recognized as one, the applicants are entitled to Annexure A-3 (i) benefits read with all the conditions contained in Annexure I to Annexure A-3. We note from Annexure A-1 attached to Annexure A-3 that nowhere does it mention that the said grade pay should be given only if applicant has been in receipt of all the previous grade pay in the upward ladder. However, it is also presumed that all lower steps of the ladder should be climbed till one reaches the higher step intended. This may take away the benefit for those services like the applicants whose promotional chances are slow, and for whose stagnation this provision was intended. Clause 3 of above attached Annexure merely states that all prescribed eligibility criteria and promotional norms including benchmark for upgradation to a particular grade pay has to be met. The eligibility criteria is required to be read as the minimum number of years of residency indicated in the Recruitment Rules. And the benefit as provided in Government of India Memo Annexure A-3 would become viable and overcome the stagnation the Government has tried to address for all cadre of staff and officers.
24. Respondent contends that Group A posts in the Geological Survey of India were conferred the status of 'Organized Service' only with the notification of the Recruitment Rules vide GSR No.789 (Estts) dated 29.9.2010 and the benefits would ensure to incumbents in Group A posts only after the said notification. This is a settled matter vide order in O.A.No.404/2009 of Bangalore Bench of the Tribunal which had held that vide Annexure A to OM dated 31.7.1982 of DoPT the Geological Survey of India is listed as an organized Group A Service under Ministry of Steel & Mines. Respondents argue that non-functional upgradation to the next higher grade pay granted under the scheme is a fall back option only, to be applied in cases where officers of a particular service have not been granted promotion to a particular grade in normal course according to the due procedure. The applicants case is that this fall back option has to be activated as the applicant gets STS in 10-15 years and JAG after another 14 years.
25. In the 2012 Recruitment Rules for the service we notice that the Rule III below the conditions for Geologist has incorporated the provisions of DoPT OM Annexure A-3. Hence the respondents had intended to give the benefit, but are unable to, in view of the actual residency period in various grade pay due to stagnation. It takes anywhere between 10-15 years for a Scientist in GSI to come to Senior Time Scale and another 14 years to get Junior Administrative Grade as these promotions are vacancy based. Hence A-3 benefits can never be operated for applicants as intended ie. for those who are senior by two years or more after an IAS officer of a particular batch posted at the Centre had got the grade. It is necessary therefore to mould the relief so that the applicants can draw the benefit intended to relieve the stagnation. We note from the Recruitment Rules produced that the residency period from Geologist to Senior Geologist is 4 years, from Senior Geologist to Superintending Geologist is 5 years. Hence a minimum residency period is already prescribed in the Recruitment Rules though the same may be only a paper prescription as actual residency on vacancy based promotion is higher. There is also a provision that a Superintending Geologist is eligible for non-functional grade, who has entered the fourteenth year of service on the 1st of January of the year calculated from the year following the year of examination on the basis of which such member was recruited. Hence if the applicants have completed the above minimum residency period as per above provisions in the Recruitment Rules he is entitled to the benefit of non-functional higher pay scale, subject to the proviso under clause (1) of A-3 OM of DoPT dated 24.4.2009 which states that whenever an Indian Administrative Services Officer of the State of Joint Cadre is posted at the Centre to a particular grade carrying a specific grade pay in Pay Band 3 or Pay Band 4, the officers who belong to batches of Organized Group A Services that are senior by two years or more, and have not so far been promoted to that particular grade, would be granted the same grade on non-functional basis from the date of posting of the Indian Administrative Service Officers in that particular grade at the Centre. This non-functional higher pay scale will also be subject to all other conditions stipulated in Annexure I of A-3 DoPT OM cited above inclusive of condition (3) of Annexure I of Annexure A-3 DoPT OM dated 24.4.2009. The functional promotion will, however, be vacancy based as provided in the Recruitment Rules. Taking note of the fact that the O.A has been filed in 2013 the arrears shall be restricted to a period of 3 years immediately prior to the filing of OA as held by the Supreme Court in Union of India & another Vs. Tarsem Singh, reported in (2008) 8 SCC 648.
26. The Original Application is allowed as above. No costs.
(Dated this the 26th day of October 2016)
(P.GOPINATH) (N.K. BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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