Central Administrative Tribunal - Ernakulam
Jacob Thomas vs Union Of India Represented By on 22 September, 2016
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/343/2014
Thursday, this the 22nd day of September, 2016
CORAM:
HON'BLE Mr. JUSTICE N.K. BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Mrs. P. GOPINATH, ADMINISTRATIVE MEMBER
Jacob Thomas
S/o.P.T Thomas
Junior Fisheries Scientist
Mumbai Base of Fishery Survey of India
Sassoon Dock, Colaba, Mumbai- 400 005
Permanent Address at : Pakkathukunnel
Amalagiri P.O, Kottayam-686 036 . . . Applicant
(By Advocate Mr.T.C.G Swamy)
Versus
1. Union of India represented by
the Secretary to the Government of India
Ministry of Agriculture, (Department of
Animal Husbandry, Dairying and Fisheries)
New Delhi - 110 001
2. The Director General
Fishery Survey of India, Botawala Chambers
Sir P.M Road, Fort, Mumbai - 400 001
3. The Zonal Director
Fishery Survey of India
Zonal Office, Kochi - 682 005 . . .Respondents
(By Advocate Mr.N.Anilkumar, Sr.PCGC(R))
This application having been heard on 18.8.2016, the Tribunal on
22.09.2016 delivered the following :
ORDER
HON'BLE MRS.P.GOPINATH, ADMINISTRATIVE MEMBER The applicant who is presently working as a Junior Fisheries Scientist in PB-2 + GP of Rs.4,800/- under the respondents is aggrieved by the denial of consideration for promotion to the post of Junior Fisheries Scientist (Group 'B' gazetted) from the date from which the promotion fell due. The applicant was initially appointed under the 2 nd respondent on 17.8.1993 as a Scientific Assistant in the then scale of pay of Rs.1400-2300 (IV CPC)/Rs.5000-8000 (V CPC). The applicant was promoted as a Senior Scientific Assistant in the then scale of pay of Rs.5500-9000 during the year 2005. The scales of pay of Scientific Assistant and Sr.Scientific Assistant of Rs.5000-8000 and Rs.5500- 9000 were merged together with effect from 1.1.2006 with a common replacement Pay Band of Rs.9300-34800/- with a GP of Rs.4,200/-. The applicant was granted the 1st financial upgradation under the MACP scheme with effect from 1.9.2008 in the pay band of Rs.9300-34800 with grade pay of Rs.4600/-.
2. The applicant submits that the next promotional avenue, as it existed, was Junior Fisheries Scientist II in the then scale of pay of Rs.6500-10500. The post of Junior Fisheries Scientist II are to be filled 100% by promotion from among the Sr.Scientific Assistants with 3 years regular service in the grade. The Junior Fisheries Scientist Gr.II had an avenue of being promoted as Junior Fisheries Scientist Gr.I (100%) . Earlier, the scale of pay attached to the post of Junior Fisheries Scientist Gr.I was Rs.7500-250-12000. On and with effect from 1.1.2006 the Junior Fisheries Scientist Gr.I and Junior Fisheries Scientist Gr.II got merged together with a common replacement Pay Band of Rs.9300-34800 +GP 4800/-. The applicant submits that after the merger of the grades, two vacancies arose in the Junior Fisheries Scientist (merged cadre) consequent upon the promotion of two of the incumbents as Fisheries Scientists. The two unreserved vacancies arose on and with effect from 23.3.2010. On finding that the DPC is not being convened, the applicant submitted a representation dated 7.9.2010, addressed to the 2 nd respondent. The applicant submits that in terms of Government of India, Department of Personnel & Training O.M bearing No.22011/9/98-Estt (D) dated 8 September 1998, the respondents ought to have finalized the panel of eligible candidates on 31 March 2010 and issued orders by promoting the eligible candidates. The applicant was the second senior-most candidate eligible to be considered and promoted against one of the two vacancies of the post of Junior Fisheries Scientist.
3. The applicant approached this Tribunal by filing O.A No.1079 of 2011 challenging the non-feasance on the part of the respondents to consider and promote the applicant against the existing vacancies of Junior Fisheries Scientists and to direct the respondents to consider and promote the applicant as a Junior Fisheries Scientist at least with effect from 1.4.2010, with all consequential arrears of pay and allowances arising there from. During the pendency of the O.A the respondents considered the applicant and promoted him as a Junior Fisheries Scientist in PB-2 with GP Rs.4800/- by an Office Order bearing No.2-8/2012 -E.I dated 3.10.2012. In Annexure A-7, the benefit of promotion was given effect to with prospective effect and not with effect from 01.4.2010 as prayed for in the O.A. The applicant had also joined the post in Mumbai during December 2012 and taking judicial notice of Annexure A-7, the Original Application no.1079 of 2011 was disposed of by order dated 1st November 2012. This Tribunal taking notice of the applicant's left over grievance held as follows:
b� However, if the applicant wants to make a representation, we leave open the right to make such a representation and as when the same is filed the respondents will consider the same and dispose of in accordance with law. b�
4 After joining Mumbai, the applicant submitted Annexure A-10 representation dated 27.4.2013 for granting the benefit of retrospective promotion. Aggrieved by the inaction on Annexure A-10 and the failure to grant the benefit of promotion with retrospective effect, the applicant approached this Tribunal by filing O.A No.1157/2013, praying for a direction to the respondents to consider and take a decision on Annexure A-10 representation and to grant him the benefit of promotion as Junior Fisheries Scientist with effect from 1.4.2010. O.A 1157/2013 was disposed of by order dated 4.12.2013 with a direction to the respondents to consider and pass orders on Annexure A-10 representation strictly on merit and in accordance with law within four months. In purported implementation of the directions in Annexure A-11, the 2nd respondent issued Annexure A-12 memorandum bearing No.F.14- 22/2013-E.II dated 4.2.2014. Applicant is aggrieved by Annexure A-12 order. Relief sought by the applicant is as follows:
' Declare that the respondents are bound to consider and ante-date the promotion of the applicant as Junior Fisheries Scientist with effect from 1.4.2010 with all its consequential benefits. ' 5 Respondent in the reply statement submit that the applicant was initially appointed to the post of Scientific Assistant in Fishery Survey of India in the IVth CPC pay scale of Rs.1400-2300 w.e.f 17.8.1993. He was promoted to the post of Sr.Scientific Assistant in the Vth CPC pay scale of Rs.5500-9000/- w.e.f 11.4.2005. Having completed three years service in the post of Sr.Scientific Assistant he became eligible for next promotion to the post of of Jr.Fisheries Scientist Gr-II in the Vth CPC pay sclae of Rs.6500-10,500/- on 11.4.2008, subject to availability of vacancy and taking into account seniority in the cadre. For want of vacancy of Jr.Fisheries Scientist Gr.II the applicant could not be promoted for the next 4 months i.e upto 29.8.2008. With the introduction of VIth CPC pay bands on 29.8.2008 with retrospective effect from 1.1.2006, the applicant's promotion channel from the post of Sr.Scientific Assistant to Jr.Fisheries Scientist Gr.II ceased to exist as the pay scales of feeder post of Sr.Scientific Assistant (Rs.5,500-9000) & promotional post of Jr.Fisheries Scientist Gr.II (Rs.6500-10,500) were merged and replaced by a single pay band (PB-2) of Rs.9300-34,800/- + Grade Pay 4200. The Recruitment Rules also brought about a change in qualifying service by increasing it from four to six years service in the post of Sr.Scientific Assistant for promotion to the post of Junior Fisheries Scientist. The applicant completed 6 years of service in the feeder post of Sr.Scientific Assistant on 10.4.2011 to qualify for promotion to the post of Jr.Fisheries Scientist. Recruitment Rules for the post of Jr.Fisheries Scientist having been notified in August, 2012, DPC papers were prepared and processed and the applicant was promoted to the post of Jr.Fisheries Scientist on 3.10.2012 vide O.O No.2- 8/2012-E.I dated 3.10.2012. The applicant was therefore promoted to the post of Jr.Fisheries Scientist within two months from the date of notification of R.R for the promotional post after preparing & processing D.P.C papers. Respondent avers that from the position detailed above there was no delay in promoting the applicant.
6 Heard the learned counsel for parties and perused the written submissions made.
7 Applicant does not complete six years service in the post of Sr.Scientific Assistant as on 23.3.2010 i.e date of occurrence of vacancy, to qualify for promotion to the post of Junior Fisheries Scientist as per Recruitment Rules. The applicant had qualified for promotion to the post of Junior Fisheries Scientist only on 11.4.2011. Recruitment Rules for the post of Junior Fisheries Scientist having been notified in August, 2012, applicant's Annexure A-4 representation dated 7.9.2010 was premature in as much as he did not complete qualifying service of six years in the feeder post of Sr.Scientific Assistant for promotion. Applicant completed six years service only on 11.4.2011, as the date of promotion of the applicant to the feeder post of Sr.Scientific Assistant was 11.4.2005. Two vacancies of Junior Fisheries Scientist occurred on 23.3.2010 under the vacancy year 2009-2010 and the crucial date for determining eligibility was 1.1.2009. As the applicant had completed six years service in the feeder post of Sr.Scientific Assistant only on 11.4.2011, he was not eligible to be considered for promotion as on the crucial date of 1.1.2009. The applicant being eligible for promotion to the post of Junior Fisheries Scientist only on 11.4.2011, his claim for promotion w.e.f 1.4.2010 is premature. It is submitted that with the introduction of VI CPC pay band on 29.8.2008 with retrospective effect from 1.1.2006, the applicants promotion channel from the post of Sr.Scientific Assistant to Jr.Fisheries Scientist Gr.II ceased to exist as the pay scales of the feeder post of Sr.Scientific Assistant (Rs.5500-9000) & its promotional post of Jr.Fisheries Scientist Gr.II (Rs.6500-10,500) were merged and replaced by a single pay band and grade pay of Rs.9300-34,800 + 4200/- G.P).
8 The VI CPC while providing higher pay scales and providing for merger of posts had also directed that the Recruitment Rules for merged posts be revised accordingly in tune with upgraded pay scale. The upgraded pay scales therefore came with a rider of revision of recruitment rules with condition to match the upgraded pay scales. Applicant was a Sr.Scientific Assistant. His promotional post was Jr.Fisheries Scientist Gr.II. The VI CPC merged the post of Sr.Scientific Assistant and Junior Fisheries Scientist Grade II. On the merger of the promotional post of applicant i.e, Junior Fisheries Scientist Grade II in scale Rs.6500-10,500 with the next higher post i.e, Junior Fisheries Scientist Grade I in pay scale Rs.7500-12000 and its re-designation as Junior Fisheries Scientist with scale Rs.9300-34800 + GP 4800/-, the applicant became eligible for the above merged post. Whereas it is admitted that the merged post is required to be covered by a new set of recruitment rules, the delaying of promotion awaiting the drawing up of new Recruitment Rules is not justified. Till such time as the new Recruitment Rules was drafted the respondent had the option of operating the old Recruitment Rules of the higher merged post to which applicant was entitled in the V CPC. As per Annexure A-2 old recruitment rules for the post Junior Fisheries Scientist Grade II three years regular service in the post of Senior Scientific Assistant was required. However, operating the old Recruitment Rules for JFS Grade II, had the disadvantage of excluding the service qualification of JFS Grade I the merged post. The experience qualification is necessary particularly in scientific posts so that holders of the post can gain specific required experience before moving into the higher grade and provide better quality scientific research input to the country and the target population for whom the scientific body was created to serve. The total experience qualification for promotion to both posts i.e, JFS Grade II and JFS Grade I was 3+3 years. Taking this experience of 6 years, temporarily, till such time as new Recruitment Rules were drafted the applicant would have also got the benefit of promotion. Not having done the above, the second option was to promote the applicant w.e.f the date he completes six years of service as Sr.Scientific Assistant as required under the amended recruitment rules for promotion to JFS. The applicant completed 6 years of service as Sr.Scientific Assistant on 10.4.2011 to qualify for promotion to the post of JFS on 10.4.2011. Hence, the respondent is directed to antedate the promotion of the applicant as JFS w.e.f 10.4.2011, the date he completes six years service as required under the operation of VI CPC pay scales and the connected revised recruitment rules.
9 The Original Application is disposed of as above. No costs.
(MRS.P. GOPINATH) (N.K.BALAKRISHNAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER sv