Central Administrative Tribunal - Ernakulam
Rekha J.Nair vs The Indian Council Of Agricultural ... on 27 August, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH O.A.No.92/2008 Wednesday, this the 27th day of August, 2008 CORAM :
HON'BLE DR.K.B.S.RAJAN, JUDICIAL MEMBER HON'BLE DR.K.S.SUGATHAN, ADMINISTRATIVE MEMBER Rekha J.Nair, Scientist (Selection Gr.), Central Marine Fisheries Research Institute, Kochi-18 Residing at No.49/1093-G, "Samkari" Airswarya Nagar, Edappalli, Kochi-24. ... Applicant.
By Advocate Mr.T C G Swamy V/s 1 The Indian Council of Agricultural Research, Krishi Bhavan, Dr.Rajendra Prasad Rd, New Delhi-110 001, Through its Secretary.
2 The Director, Central Marine Fisheries Research Institute, Kochi-18.
3 The Senior Administrative Officer, Central Marine Fisheries Research Institute, Kochi-18. ... Respondents By Advocate Mr.P.Jacob Varghese (This application having been heard on 19th August, 2008, the Tribunal on 27-08-08 delivered the following) (ORDER) Hon'ble Dr K.B.S.Rajan, Judicial Member The applicant has challenged the impugned Annexure A-1 order dated 14th February, 2008, whereby the respondents have withdrawn the office order dated 13-02-08 promoting the applicant to the post of Scientist (Selection Grade) w.e.f. 24-06-2007.
2. The brief facts of the case of the applicant are that she commenced her services under the respondents as Scientist in the scale of pay of Rs 8,000 13,500/- w.e.f. 24-06-1996. Effective from 27-07-1998 was a scheme of Career Advancement whereby, a scientist with Ph.D /M.Phil/M.Sc with respectively four/five/six years service would be eligible to ascend to the grade of Scientist (Senior Scale) in the pay scale of Rs 10,000 15,200/- subject to their being assessed meritorious. Next higher post is senior scientist/ Scientists (selection grade) for which the eligibility condition was Scientists (senior scale) with five years of service. Eligibility condition for further elevation to the post of Principal Scientist was eight years of service in the grade of senior scientist/Scientist Selection Grade. Annexure A-2 scheme dated 19th July, 2000 refers. In regard to the period of service in the feeder grade, para 4 of the scheme further provided as under:
"4. If the number of years required in a feeder cadre are less than those stipulated in this notification, thus entailing hardship to those who have completed more than the total number of years in their entire service for eligibility in the cadre, such candidates may be placed in the next higher cadre after adjusting the total number of years."
3. On the basis of a clarification in respect of the above provision issued by the U.G.C., respondents have also given a clarification to the effect that a scientist (sr. Scale)/Lecturer (Sr. Scale)/Asstt. Professor (Sr. Scale) with five years of service in the senior scale or with a total of 9 years of service (with Ph.D)/10 years service (with M.Phil)/11 years service would be eligible for promotion to the post of Sr. Scientist/Scientist (Sel. Grade)/Reader (promotion)/ Associate Professor (Promotion)/Lecturer (Sel. Grade). However, in respect of Principal Scientist, the stipulation of 8 years of service at the feeder grade of senior scientist was kept intact. Annexure A-3 order dated 19th April, 2001 refers. When the applicant was holding the post of Scientist (Sr. Scale) and had completed a total of 11 years service as scientist/scientist (Sr. Scale), vide Annexure A-3 communication dated 23rd July 2007, she was asked to furnish her self appraisal report for consideration by the DPC. And by Annexure A-7 order dated 13th February 2008, the Council had approved the promotion of the applicant to the grade of Scientist (Selection Grade -Pay scale 12000 18300) with retrospective effect from 24th June 2007. It is this order that has been withdrawn by the impugned Annexure A-1 order. Violation of Principles of natural justice, non affording of the reasons for withdrawal, discrimination in the action of the respondents are some of the grounds of challenge.
4. Respondents have contested the O.A. According to them, earlier effective from 01-01-1986 a career advancement scheme was in vogue, as per which the years of residency for placement from Scientist (Sr. Scale) to the post of Scientist (Sel. Grade)/Senior Scientist for Ph.D/M.Phil and M.Sc. Degree holders respectively was 5/7/8 years. By the present scheme, this period has been reduced to 4/5/6 years respectively, w.e.f. 27.07.1998. Para 4 of the notification (extracted above) was in fact made with the intention that some Scientists who are governed by the earlier scheme were at a disadvantageous position vis-`-vis the newly selected persons who joined subsequently and were provided undue and unintended advantage because of the reduction in the residency period which lead to undue benefits of consideration and placement in the subsequent higher scales. The Council issued clarificatory instructions vide letter dated 27th August, 1998 which specified that in case where a Scientist is not found fit for promotion on one or more occasions from the grade of Scientist to Scientist (Senior Scale), the effect of postponement of promotion by one year or more will also have the effect of increasing the total period of service required for promotion/placement from Scientist (Senior Scale) to the grade of Scientist (Selection Grade/Senior Scientist) beyond 16/15/13 years and now revised to 11/10/9 years. Annexure R-1 refers. It has also been stated that in case an incumbents placement has been postponed due to lack of performance, it would he logical and administratively tenable that the subsequent placements are also correspondingly postponed irrespective of the total years service. Further, it has been stated by the respondents in their reply that in the instant case, the applicant was appointed to the post of Scientist w.e.f. 24-06-1996 and was governed by the new Career Advancement Scheme. She became eligible for consideration for promotion/placement to the grade of Scientist (Senior Scale) w.e.f. 24-06-2002 after completion of 6 years service in the grade of Scientist. She was duly considered by a Selection Committee constituted by the Institute but was not recommended for promotion to the grade of Scientist (Senior Scale) as she did not fulfil the necessary criteria laid down in the Career Advancement Scheme. Subsequently, she was considered on the next occasion w.e.f. 24-06-2003 and recommended for promotion to the next higher grade i.e. Scientist (Senior Scale) w.e.f. that date. The effect of postponement of promotion by one year will also have the effect of postponing her promotion from the grade of Scientist (Senior Scale) to Scientist (Selection Grade) for a period of one year. If such cases are not regulated as per the clarifications contained in Council letter dated 27-08-1998 (Annexure R-1), it will be a great injustice and discrimination to those Scientists who were considered and placed in the higher scale from their respective due dates. Promotion of the applicant vide Annexure A-7 was made inadvertently by the Selection Committee without taking into account the provisions of the afore said Annexure R-1 clarificatory letter dated 27-08-1998 and the error was rectified immediately with the sole intention of avoiding further complications and pains of recovery of the monetary benefits. Respondents have also explained as to how unintended advantage to a junior recruited after the coming into existence of the new CAS would occur compared to his senior by way of the following tabular column:
Scientist A - Joins as Scientist with M.Sc degree - 01/01/90/ Scientist B - Joins as Scientist with M.Sc degree - 01.08.1992.
Scientist A -Promoted as Scientist (Senior Scale) as per the then CAS requiring 8 years service-01/01/98 / Scientist B - Promoted as Scientist (Senior Scale) as per existing CAS effective from 27.07.1998 requiring 6 years service.-01.08.1998.
Scientist A - Introduction of revised CAS - 27.07.1998./ Scientist B - -- --.
Scientist A -Shall be placed as Scientist (SG) after 5 years of service as Scientist(SS)- 01/01/03 / Scientist B - Shall be placed as Scientist (SG) after 5 years of service as Scientist(SS) -01/08/03.
Scientist A - Total service 13 years./ Scientist B - Total service 11 years.
It has also been stated that it is not only the promotion of the applicant but also of others as contained in Annexure R-2 letter dated 30th November, 2007 that are subjected to review.
5. The applicant has filed her rejoinder wherein it has been contended that the clarification vide Annexure R-1 was with reference to the previous scheme and once the present scheme came into existence, the previous scheme as well as its clarification would not apply to those who are governed by the present scheme. Again, the clarification at Annexure R-1 cannot nullify the Annexure A-3 clarification in respect of the present scheme. Again, in a number of cases respondents have invoked the provisions of Annexure A-3 clarification and in such cases also, placement to the grade of Scientist (senior scale) was postponed by one or more years. Thus, the contention that the effect of postponement of promotion will also have the effect of postponing the applicants promotion as Scientist (Selection Grade) for a like period is totally devoid of merits.
6. By a Misc. Application, the applicant had filed a copy of communication dated 19th December, 2007 wherein the names of four scientists (Sr. Scale) including that of the applicant were referred to the DPC for consideration for further placement to the grade of Scientists (S.G).
7. In addition to the rejoinder, an additional rejoinder had been filed, containing Annexure A-10 clarifications and Annexure A-9 corrigendum to Annexure A-10 and the relevant clarifications are as under:
Annexure A-10 clarification dated 19th April 2004 :-
Sl .No 7.
Points of doubt - Whether a scientist who has not been granted Sr. Scale is eligible for placement in Selection Grade after completion of total number of years of service as per para 2.6 of Career Advancement Scheme notified vide letter dated 19th July, 2000.
Clarification - A Scientist has to be first placed in the Sr. Scale and then may be considered for promotion as Scientist (Sel. Grade)/Sr. Scientist after putting in a total of 9 years of service in Scientist/Scientist (Sr.Scale) Annexure A-9 Corrigendum dated 21st May, 2008 to clarification No. 7 :
Sl .No 7.
Points of doubt - Whether a scientist who has not been granted Sr. Scale is eligible for placement in Selection Grade after completion of total number of years of service as per para 2.6 of CAS notified to State Govts. And Para 4 of letter dated 19th July, 2000 addressed to ICAR Institutes.
Clarification - A Scientist has to be placed in the grade of Sr. Scale in the first instance in order to be considered for the grade of Scientist Sel. Grade/Senior Scientist after rendering the total number of years of service as per revised Career Advancement Scheme notified vide circular no. 1(10)/99-Per. IV dated 19th July, 2000. As per the Scheme a Scientist (without Ph.D Degree), therefore, has to render a total of 11 years of service in the grade of Scientist and Scientist (Sr. Scale) in order to be considered for the grade of Scientists (Selection Grade) and a Scientist (with Ph.D degree) is required to render a total of 9 years of service in the grade of Scientist and Scientist (Sr. Scale) in order to be considered for the grade of Sr. Scientist.
8. Counsel for the applicant submitted that the applicant was appointed as Scientist, admittedly, after the introduction of the present Career Advancement Scheme. As such, her promotion matter has to be governed by the provisions of the said scheme only. In so far as the period of service required for eligibility to the higher post of Scientist (S.G) is concerned, Annexure A-3 clearly provides for 5 years of service as Senior Scale or 11 years of combined service as Scientist and Scientist Sr. Scale. Again, by clarification, vide Annexure A-9 as modified by corrigendum vide Annexure A-8, for becoming eligible for consideration to the post of Scientist Selection Grade, holding the post of Scientist Sr. Scale is a sine qua non but there is no stipulation that it must be a minimum of 5 years or that in case of postponement of placement at the time of consideration for the post of Scientist (Sr. Scale) a corresponding postponement would be effected irrespective of the total number of years of service. As such, when the applicant fulfils the twin conditions (a) must be a scientist (sr. Scale) and (b) 11 years combined service as Scientist and Scientist (Sr, Scale), on the basis of merit, she was to be (and actually she was) considered for promotion to the higher grade of Scientist (Sel. Grade). Invoking of the provisions of Annexure R-1 is thoroughly illegal as the said order cannot apply to the present scheme. Again, the counsel highlighted that in many cases promotion to the grade of Scientist (Sel. Grade) has been granted on the basis of the clarification now given, irrespective of whether the individual had been promoted to the senior scale on time or belatedly.
9. Counsel for the respondents submitted that Annexure R-1 order has not been superseded. Again, the only difference between earlier scheme and the present scheme is the difference in the total number of years of service and as such, any other condition attached to the basic scheme would apply to the present scheme as well.
10. Arguments were heard and documents perused. The main question to be considered is whether Annexure R-1 is applicable to the case of the applicant or for that matter to any one who is governed by the current Assured Career Scheme.
11. Annexure R-1 clarification dated 27th August 1998 reads as under:"
Attention is invited to the Council's letter No.1(14)/87Per. IV dated the 28th October, 1991 regarding Career Advancement Scheme adopted by the Council w.e.f. 1.1.86 for the Scientists. According to this scheme every Scientist in the pay scale of Rs.2200-4000 will be placed in the Senior Scale of Rs.3000-5000 if he/she has:
Completed 8 years of service after regular appointment as Scientist in the pay scale of Rs.2200-4000.
2 The Scheme further provide that every Scientist in the Senior Scale of Rs.3000-5000 will be eligible for promotion to the post of Scientist (Selection Grade)/Senior grade in the pay scale of Rs.3700-5700 if he/she has:
Completed 8 years of service in the Senior Scale provided the requirement of 8 years will be relaxed if his total service as Scientist is not less than 16 years."
3 This scheme also provides relaxation as follows:-
Scientists in the pay scale of Rs.2200-4000 for promotion to Scientist (Senior Scale) )(Rs. 3000-5000) and/ or Scientist (Selection (Grade) Rs.1700-5700) will also be entitled to relaxation in the years of service by 3 years or one year respectively if they hold Ph.D. Or M.Phil degree.
4 Certain clarifications in this regard have been issued by the Council vide letter of even No.dated the 5th August, 1992 and 21st November, 1995. Para 2 of Council's letter of even no.
dated 21st November, 1995 inter-alia clarified that a Scientist who is not found suitable for placement/promotion on a due date, may be re-considered after completion of one year qualifying service from the date from which he was considered earlier but not recommended for promotion. It was also clarified that in such cases, a Scientist cannot be recommended for promotion from back date. In other words, the unsuitability of a Scientist for promotion/placement on a due date will have the effect of postponing his promotion/placement for a period of one year (or more) as the case may be.
It is further clarified in this regard that the effect of postponement of promotion of Scientist for one year or more will also therefore have the effect of postponing his/her promotion on the second occasion for the next grade irrespective of whether it may have the effect of increasing the total period of service required for promotion/placement from the Scientist scale to the scientist Selection Grade/Sr. Grade beyond 16/15/13 years as the case may be.'
12. When the above clarification was issued, the scheme that was in force was the earlier scheme effective from 01-01-1986. The present scheme, though effective from 27-07-1998, in fact, was published only on 19th July, 2000. Once the present scheme came into existence, any clarification relating thereto alone should apply and not the one which related to the previous scheme. Of course, if the previous clarification is a basic condition precedent and is specifically extended to the new scheme, the same should certainly be applicable. If the said condition is scheme specific, application of the same has to be restricted to that scheme only and cannot be extended to the present scheme.
13. Respondents contention is that the very purpose of clarification vide Annexure A-3 was with a view to ensuring that the scientists covered under the earlier scheme are not put in a disadvantageous position or put in other words, scientists in the new scheme should not derive undue benefits. If this were the intention, that would have been specifically mentioned in the very clarification that in order to mitigate hardship to those who were inducted when the earlier scheme was in existence, eligibility for promotion to the post of Scientists (Selection Grade) would be either five years of service as Scientist (Sr. Scale) or 11 years combined service of Scientists and Scientist (Sr. Scale). This was not so specified. The clarification as given in Annexure A-3 being unconditional, is universally applicable, both to those who were earlier governed by the previous scheme as well as to those who are governed by the current scheme. It must be pointed out here that the condition imposed vide Annexure R-1 has a significant and telescopic impact, as the same has the effect of postponing future promotions and thus, if it were to be kept under currency, it would have certainly been repeated as and when opportunity occurred, as for example, when further clarification had been issued vide Annexure A-9 as modified by Annexure A-8. This has not been the case here. Thus, viewed from any angle, when the scheme vide Annexure A-2 read together with clarification vide Annexure A-9 as modified by Annexure A-8 is analysed applicability of Annexure R-1 provision to the present scheme cannot be said to be existing.
14. Annexure A-9 is clear and unambiguous. It puts forth only two conditions for becoming eligible for consideration for higher post of Scientist (Selection Grade) which are as under:
(a)That the incumbent should be a scientist (sr. scale); and
(b)That he should have either 5 years of service as Scientist (Sr. Scale) or a combined 11 years of service as Scientist and Scientist (Sr. Scale).
15. When the above two conditions are fulfilled, the individual should be considered for promotion to the next grade of Scientist (Selection Grade). Any further condition of postponement of promotion when initially at the time of promotion to the post of Scientist (Senior Scale) there had been a postponement, is beyond the scope of the above laid down conditions.
16. It is pertinent to point out here that while for promotion to the post of Scientist (sel. Grade), the minimum period of service as Scientist (senior scale) has not been prescribed when combined service of 11 years is considered, in so far as Principal Scientist is concerned, the stipulation of completion of 8 years of service has been re-emphasized. Thus, for promotion to Scientist (Selection Grade) there is no bar to consider the case when the aforementioned twin conditions are satisfied. Thus, the question of postponement of promotion on the ground that the earlier promotion was postponed does not arise.
17. The example given in the tabular form vide para 15 of the counter, as also extracted above, is totally misplaced.
18. In view of the above, we have no doubt in our mind that the earlier clarification vide Annexure R-1 cannot be extended to the present scheme. The applicant was rightly considered for promotion on completion of 11 years of service and no deviation from the rules had taken place when Annexure A-7 order has been passed and consequently, there was no need to keep the same either withdrawn or keep in abeyance. Annexure A-1 order dated 14-02-2008 is, therefore, quashed and set aside. Respondents are directed to operate the promotion granted to the applicant vide Annexure A-7 order dated 13-02-2008 and afford all consequential benefits to the applicant.
19. The O.A. is allowed on the above terms. Directions as above shall be complied with, within a period of 2 months from the date of communication of this order.
20. No costs.
(Dated, the 27th August, 2008) DR.K.S.SUGATHAN DR.K.B.S.RAJAN ADMINISTRATIVE MEMBER JDUCIAL MEMBER