Karnataka High Court
Union Of India vs Smt S Geethanjali on 13 February, 2017
Bench: Jayant Patel, S.Sujatha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF FEBRUARY, 2017
PRESENT
THE HON'BLE MR. JUSTICE JAYANT PATEL
AND
THE HON'BLE MRS. JUSTICE S.SUJATHA
WRIT PETITION NO.61691/2016 (S-CAT)
C/W
WRIT PETITION NO.61692/2016 (S-CAT)
IN WRIT PETITION NO.61691/2016
BETWEEN:
1. UNION OF INDIA
REPRESENTED BY ITS SECRETARY,
MINISTRY OF DEFENCE,
SOUTH BLOCK, NEW DELHI-110001
2. THE DEFENCE RESEARCH AND
DEVELOPMENT ORGANISATION
MINISTRY OF DEFENCE,
DRDO BHAVAN, RAJAJI MARG,
NEW DELHI-110105
REPRESENTED BY THE SCIENTIFIC ADVISOR TO
RAKSHA MANTRI & DIRECTOR GENERAL
3. THE AERONAUTICAL DEVELOPMENT
ESTABLISHMENT
NEW THIPPASANADRA, BENGALURU-560075
REPRESENTED BY ITS DIRECTOR
... PETITIONERS
(BY SRI. JAYAKARA SHETTY H, ADV.)
2
AND
SMT S GEETHANJALI
D/O N SHIVANNA,
TECHNICAL OFFICER GRADE-A,
AGED ABOUT 58 YEARS,
AERONAUTICAL DEVELOPMENT ESTABLISHMENT,
NEW THIPPASANDRA POST,
BANGALORE-560075
... RESPONDENT
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DTD:8.1.2016 AT ANNEXURE-A
MADE IN O.A.NO.1020/2013 PASSED BY THE HON'BLE
CAT BANGALORE AND DISMISS THE O.A.NO.1020/2013
FILED BY THE RESPONDENT AND ETC.
IN WRIT PETITION NO.61692/2016
BETWEEN
1. UNION OF INDIA
REPRESENTED BY ITS SECRETARY
MINISTRY OF DEFENCE
SOUTH BLOCK, NEW DELHI -110001
2. THE DEFENCE RESEARCH AND DEVELOPMENT
ORGANISATION
MINISTRY OF DEFENCE
DRDO BHAVAN RAJAJI MARG
NEW DELHI - 110105
REPRESENTED BY THE SCIENTIFIC ADVISOR TO
RAKSHA MANTRI & DIRECTOR GENERAL
3. THE AERONAUTICAL DEVELOPMENT
ESTABLISHMENT
NEW THIPPASANDRA
BENGALURU - 560075
REPRESENTED BY ITS DIRECTOR
... PETITIONERS
(BY SRI.JAYAKARA SHETTY H, ADV.)
3
AND
SMT S VIJAYAMMA
W/O M H SATHYANANDA
TECHNICAL OFFICER GRADE - A
AGED ABOUT 59 YEARS
AERONAUTICAL DEVELOPMENT ESTABLISHMENT
NEW THIPPASANDRA POST
BANGALORE - 560075
... RESPONDENT
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DTD.8.1.2016 ANNEX-A MADE IN
O.A.NO.1019/2013 PASSED BY THE HON'BLE CAT,
BANGALORE AND DISMISS THE O.A.NO.1019/2013
FILED BY THE RESPONDENT.
***
THESE WRIT PETITIONS COMING ON FOR ORDERS
THIS DAY, JAYANT PATEL J, MADE THE FOLLOWING:
COMMON ORDER
The present petitions are directed against the order dated 8.1.2016 passed by the tribunal in O.A.1020/2013 and O.A.1019/2013 respectively, whereby the tribunal for the reasons recorded in the order has allowed the applications.
2. We have heard Sri.Jayakara Shetty, learned counsel for the petitioners. 4
3. The contention raised on behalf of the petitioners is that Modified Assured Career Progression (MACP) scheme is not applicable to Flexible Complementing Scheme (hereinafter referred to as 'FCS'). He contended that the Office Memorandum dated 10.9.2010 which has been relied upon by the tribunal is only applicable to the Scientists and not to the Technicians. He also contended that so far as FCS is concerned, the same is exempted from the applicability of MACP scheme or any recruitment or regulations applicable to the central government staff. The aforesaid is not properly considered by the tribunal. Hence, this court may consider the same in the present petitions.
4. The tribunal in the impugned order has recorded at paragraphs 13, 14 and 15 as under:
"13. When the ACP Scheme was introduced in 1999, the DRDO has issued a communication on 1.9.1999 stating that the ACP Scheme which is introduced from 9th August 1999 shall not be applicable to the posts covered by 5 the Flexible Complementing Scheme. Subsequent to the 6th Central Pay Commission recommendation, the DOPT issued OMs dated 10.9.2010 and 1.5.2010 pertaining to the Modified Flexible Complementing Scheme for the scientist based on the recommendations of the Sixth Central Pay Commission which stipulated the following:
"The modified ACP as approved for Central Government Civilian employees would also be applicable to Scientists covered under FCS. This is expected to provide an alternate channel for development for Scientists and is expected to maintain the rigors of assessment required for assessment under FCS. Some illustrations are given below for clarity:
A Scientist 'B' is considered but does not get upgradation under the FCS. He would be entitled to grade of Scientist 'C', 'D' and 'E' on completion of 10/20/30 years of service subject to provisions of MACP notified vide 6 O.M.No.35034/3/2008-Estt. (D), dated the 19th May, 2009.
A Scientist 'B' gets upgradation to Scientist 'C' under FCS in second chance after 4 years. After prescribed residency, he does not qualify under FCS for three successive years for upgradation to Scientist 'D'. After completion of ten years in the grade pay of Scientist 'C' i.e., after 14 years of service he is upgraded to Scientist 'D' under MACPS, subject to provisions of MACP notified vide O.M.No.35034/3/2008-Estt. (D), dated the 19th May, 2009. After prescribed residency of 4 years in Scientist 'D', he would again be considered for upgrataion to Scientist 'E' under FCS. In case he does not qualify for three successive years, he would be upgraded to Scientist 'E' after completion of 10 years in the grade pay of Scientist 'D' i.e., after 24 years of service. Further upgradation to Scientist 'F' and 7 Scientist 'G' would only be under FCS as the Scientist would have got three upgradations and no further upgradation under MACPS would be permissible.
If a Scientist gets three
upgradations under the FCS
scheme, there would be no claim for any further upgradation under MACPS as the MAC{P scheme only allows three financial upgradation in the hierarchy of Pay Bands and Grade Pay on completion of 10, 20, and 30 years of service respectively.
14. It is apparent from the above that this provision regarding applicability of the MACP to Scientists covered in the FCS is intended to cover such cases of scientists who could not get promoted under the merit based Flexible Complimenting Scheme since there is a ceiling up to which the eligible employees can be promoted from one grade to another grade. As mentioned earlier there would be case where, even if a person meets the required bench mark, because of the ceiling limit for 8 promotion he cannot be considered for promotion to the next grade. Therefore under normal circumstances one should be entitled to the financial benefits as provided under the MACP. Under the Flexible Complimenting Scheme, a person is required to have a minimum 5 years of regular service to become eligible for the assessment to the next grade. But in MACP only after 10 years, he shall be entitled to get the financial benefits.
15. It appears from the records that the applicant got only one promotion in September, 1983 and she is still continuing in the same grade only. She did appear in the assessment board on several times over next few years but was not considered by the Board for promotion may be due to the ceiling limit. On having failed on number of times, she did not appear before assessment board in future."
5. The aforesaid shows that though initially ACP scheme was not applicable to the FCS, but subsequently by the office memorandum dated 9 10.9.2010 read with office memorandum dated 1.5.2012, it has been made applicable.
6. Under the circumstances, it is not possible to accept the contentions of the learned counsel for the petitioners that the MACP scheme is not at all applicable.
7. Distinction sought to be canvassed for scientists and the technicians is also ill founded in as much as office memorandum dated 10.9.2010 is concerned, there is no specific distinction for the post held by the scientists or post held by the technicians falling in the DRDO and the Department of Atomic Energy and Space.
8. In the office memorandum dated 10.9.2010, it has been interalia stated as under:
"The Commission has, however, recommended certain features to be incorporated in the existing schemes of FCS and merit based promotion scheme so as to make them more relevant to the context."10
9. Thereafter, at paragraph 2 of the said office memorandum, it has been observed as under:
"2. The recommendations of the Commission have been examined in detail in the context of FCS and a revised comprehensive scheme is enclosed for immediate necessary action by all concerned Ministries and Departments. All the Ministries I departments shall initiate action for review of the provisions of the Flexible Complementing Scheme and amend the provisions of relevant recruitment rules so that the scheme is brought in conformity with the decision I guidelines being conveyed vide this Office Memorandum. Assessment of Scientists from 01 .01.2011 shall be done accordingly."
10. The aforesaid shows that the scheme is made applicable for the staff of FCS.
11. There is no distinction in the scheme for scientists, officers or technical officers. Further, in the office memorandum dated 10.9.2010 at page 6, it has been stated as under:
11
"ix Scientists/Technical experts doing management/ administrative work in the Ministries should not be considered for up gradation under FCS, they should only be given benefit of up gradation under MACP"
12. The aforesaid shows that it applies to all staff working under the FCS even if they are doing management or administrative work in the Ministry.
13. In view of the above, we do not find that the ultimate decision taken by the tribunal calls for any interference. Under the circumstances, no case is made out for interference. Hence, petitions are dismissed.
Sd/-
JUDGE Sd/-
JUDGE DM/-