Kerala High Court
S.Veeraputhran vs Union Of India on 7 February, 2007
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
THURSDAY, THE 11TH DAY OF JANUARY 2018 / 21 ST POUSHA, 1939
WP(C).No. 31887 of 2014
PETITIONER:
S.VEERAPUTHRAN, AGED 48 YEARS,
S/O. T.SUBRAMANIAM, SCIENTIST (ECONOMICS) (SECIENTIST B),
ECONOMIC RESEARCH DIVISION, RUBBER RESEARCH INSTITUTE OF
INDIA, RUBBER BOARD, RUBBER BOARD PO., KOTTAYAM 686 009
(RESIDING AT QUARTER NO. 4/6, RRII CAMPUS, RUBBER BOARD P.O.,
KOTTAYAM 686 009)
BY ADV.SRI.T.SANJAY
RESPONDENT(S):
1. UNION OF INDIA,
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA,
MINISTRY OF COMMERCE & INDUSTRY, UDYOG BHAVAN, NEW
DELHI - 110 011.
2. THE RUBBER BOARD
REPRESENTED BY ITS SECRETARY, COLLECTORATE P.O.,
KOTTAYAM - 686 002.
R1 BY ADV. SRI.N.NAGARESH, ASG
R2 BY ADVS. SRI.V.ABRAHAM MARKOS
SRI.BINU MATHEW
SRI.TOM THOMAS (KAKKUZHIYIL)
SRI.ABRAHAM JOSEPH MARKOS
SRI.ISAAC THOMAS
SRI.NOBY THOMAS CYRIAC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-01-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
PBS
WP(C).No. 31887 of 2014 (I)
APPENDIX
PETITIONER(S)' EXHIBITS
P1 - A TRUE COPY OF ORDER NO. 27/16/1999 PLANT (B) DT. 06.7.06 OF THE
MINISTRY OF COMMERCE, GOVERNMENT OF INDIA.
P2 - A TRUE COPY OF OFFICE MEMORANDUM NO. 2/41/97-PIC DT. 09.11.98
GOVERNMENT OF INDIA.
P3 - A TRUE COPY OF OFFICE MEMORANDUM NO. AB 14017/31/2004-ESTT (RR) DT.
21.11.05 OF THE GOVERNMENT OF INDIA.
P4 - A TRUE COPY OF INTERVIEW ASSESSMENT DT. 02.7.14 OF THE ASSESSMENT
COMMITTEE.
P5 - A TRUE COPY OF PROCEEDINGS DT. 02.7.14 OF THE ASSESSMENT COMMITTEE.
P6 - A TRTUE COPY OF RULES FOR ASSESSMENT PROMOTION OF SCIENTISTS UNDER
FCS AS APPROVED BY THE BOARD IN ITS 156TH MEETING HELD ON 5TH
AUGUST 2006.
P7 - TRUE COPY OF THE CIRCULAR DATED 07.02.2007 UNDER REF.NO.
2/41/2007/EST.
P8 - TRUE COPY OF THE GOVT. ORDER NO.11/1/2006-PLANT(C) DATED 21-06-2007.
P9 - TRUE COPY OF RELIEVING ORDER MEMO NO.2/SB-2568/2007/RES DATED
31-07-2007.
P10- TRUE COPY OF THE STATEMENT OF ACR SCORES COLLECTED UNDER THE RTI
ACT.
P11- TRUE COPY OF THE OFFICE ORDER NO.985 DATED 02.04.2014.
RESPONDENT'S EXHIBITS
EXHIBIT R2(A) TRUE COPY OF THE OFFICE MEMORANDUM DATED 15TH NOVEMBER
2000 ISSUED BY THE UNDER SECRETARY TO GOVERNMENT OF
INDIA, MINISTRY OF PERSONNEL AND TRAINING.
EXHIBIT R2(B) TRUE COPY OF THE PROCEEDINGS NO.9/2006 DATED 13TH
SEPTEMBER 2006 ISSUED BY THE DEPUTY SECRETAY (P&A) OF
THE 2ND RESPONDENT.
EXHIBIT R2(C) TRUE COPY OF THE OFFICE MEMORANDUM NO.AB-14017/37/2008-
ESTT(RR) DATED 10TH SEPTEMBER 2010 ISSUED BY THE
DIRECTOR, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES &
PENSION, DEPARTMENT OF PERSONNEL & TRAINING.
/TRUE COPY/
PA TO JUDGE
PBS
P.V.ASHA, J.
--------------------------
W.P(C) No.31887 of 2014-I
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Dated this the 11th day of January, 2018
JUDGMENT
The petitioner, who is a Scientist (Economics) (Scientist B), has filed this writ petition challenging Ext.P6 Rules particularly Rule 5.5 framed by the Rubber Board-the 2nd respondent, alleging that the same is without jurisdiction. He also challenges the findings of the assessment committee by which he was found unfit for promotion under the Flexible Complementing Scheme (FCS).
2. He joined the Rubber Board as an Economic Assistant. He was promoted as Scientist B w.e.f 4.11.2004. The Flexible Complementing Scheme (FCS) was introduced by the Government of India as per Ext.P2 Office Memorandum issued on 09.11.1998. It was introduced in the Rubber Board as per Ext.P1 order w.e.f 6.7.2006. It was directed that the scheme would be implemented in the Rubber Board strictly in conformity with the guidelines/conditions of the scheme conveyed in Exts.P2 and P3 office memorandums issued by the W.P.(C).No.31887 of 2014 2 Department of Personnel and Training (DOPT) on 09.11.1998 and 21.11.2005. It was also directed that recruitment rules for the posts to be covered by the scheme may be modified with the approval of the competent authority in accordance with the residency period. Criteria for evaluation of merit, designation and other conditions are as contained in the guidelines.
3. As per Annexure II to Ext.P2 scheme, all the officers are to be screened on the basis of gradings in the annual confidential reports (ACRs) for consideration for FCS promotion. The ACRs are to be assessed in the order of outstanding, very good, good, average and poor respectively on a 10 point scale with marks at the rate of 10, 8, 6, 4 and 0 respectively. Criteria for assessing the performance was also indicated in the Annexure II. As per this the eligibility for FCS promotion from Scientists B to C for a residency period of 7 years was prescribed as 60%. If it is for 6 years, it is 60% and for 5 years it is 70%. Clause (c) of this annexure provided that all officers who are screened-in will be called for interview and their performance in the interview would be graded on a 10 point scale and the eligibility for promotion would be based on the same norms as given in the table.
4. The petitioner's case was assessed as per Ext.P4 W.P.(C).No.31887 of 2014 3 proceedings, which was stated to be the 'details of Scientist called for interview for assessment promotion under FCS Scientist to Sr. Scientist who was interviewed on 2.7.2014 in the discipline of Economics. His date of joining as Scientist in the pay band of Rs.15600-39100 (PB3) with GP Rs.5,400/- for the period from 4.11.2004 was assessed. The total period reckoned in Ext.P4 for FCS was 7 years and 5 months as on 31.3.2012. The grade to be awarded is of a Senior Scientist in pay band of Rs.15600-39100 (PB3) with GP Rs.6,600/-. He was awarded 63 marks out of 100 and was found unfit. Ext.P4 shows that the assessment committee consisted of 5 members, headed by the Chairman consisting of Director of Research, Rubber Production Commissioner and Secretary in charge of the Rubber Board and Professor in the Department of Economics, University of Calicut as outside subject expert. The Committee met at 3 p.m on 2.7.2014 for assessment of the petitioner for promotion from the post of Scientists as Senior Scientist under the FCS. It was stated in Ext.P4 that on the basis of evaluation/assessment/presentation of the work done, the petitioner was found unfit for awarding next grade of Senior Scientist.
5. The petitioner submits that the assessment was incorrect W.P.(C).No.31887 of 2014 4 as he had 7 years and 5 months of service for which the marks required was 60% only. At the same time, according to him, he was found unfit only because the respondent Board applied Rule 5.5 of Ext.P6 Rules for assessment promotion of Scientists under FCS, framed by the Rubber Board on 5.8.2006, which prescribes 75% marks for promotion. Rule 5.5 of the Rules provides for cut off mark for promotion, according to which Scientists scoring 75% marks or above in the assessment interview alone shall be considered fit for promotion to the next higher grade. The petitioner's case is that he was liable to be assessed as fit for FCS promotion in accordance with Exts.P2 and P3 office memorandums.
6. The 2nd respondent has filed counter affidavit stating that the residency period of petitioner was reckoned after excluding the period of one year and four months he spent on deputation to a non- scientific post, in tune with Ext R2(b) Office Memorandum. It is stated that the petitioner was on non- scientific deputation from 31.07.2007 to 10.11.2008. Therefore, even though Ext.P4 shows the residency period of the petitioner as 7 years and 5 months, as the period on non- scientific deputation could not be added to the minimum residency period, as per Ext R2(a) OM dated 15.11.2000, W.P.(C).No.31887 of 2014 5 the petitioner had only 6 years and 2 months for which a minimum grade of 65% was required under the FCS Ext.P2. According to the respondents, the interview committee had assessed the performance of the petitioner in accordance with rules and the conditions stipulated in Ext.P2. It is stated that the Rubber Board has been following the DOPT Guidelines based on which Ext.P6 rules also were issued on 13.09.2006. It is also pointed out that as per Ext.R2(c) DOPT Office Memorandum issued on 10.09.2010, only those having Masters Degree in Natural Science or Agricultural Science or Bachelor Degree in Engineering/Technology/Medicine and holding scientific posts are entitled for promotion under FCS. Ext.R2(c) specifically excludes non Scientific posts from the purview of FCS.
7. The petitioner has filed a reply affidavit, stating that several persons have already been granted the FCS promotion though, they are also Scientists/Economists like him. Producing Ext.P7 Circular dated 07.02.2007 by which the respondent Board invited applications for deputation in the Secretariat of the Association of Natural Rubber Producing Countries (ANRPC), petitioner asserts that his deputation was for the post and job of Economist which included Research & Development activities. According to him the job W.P.(C).No.31887 of 2014 6 descriptions of Economist given in the Appendix to the Circular Ext.P7 was the very same job description of the post of Economist/Scientist B in the 2nd respondent Board. He stated that he was sent on deputation as per Ext.P9 order with the approval of Government of India granted in Ext.P8 order dated 21.06.2007. Petitioner therefore stated that his deputation was not to any non- scientific post so as to exclude the period of deputation during the assessment for FCS promotion. It is also pointed out that in Ext.P10 statement of his ACR scores the period of deputation was shown 'eligible' and therefore the exclusion of deputation period is illegal. It was further stated that as per order dated 05.06.2014, 5 Scientists from Economic Research Division were included in FCS. Referring to the definition of Scientist under the Ext P6 rules, petitioner points out that a person occupying the post of Scientists B or higher or equivalent posts in the Rubber Research Institute of India or who has been directly engaged in R & D activities on Rubber Board are entitled to the benefit of FCS. It is also pointed out that as per Section 8(2)(a) of the Rubber Act 1947, Economic Research is one of the functions of the Rubber Board. It is also stated that while issuing Ext.P1 OM extending FCS in Rubber Board all the Scientists were W.P.(C).No.31887 of 2014 7 brought under it, without any distinction; Rubber Research Institute was identified as a Scientific and Technical institution which satisfied the criteria laid down in Ext.P2. It is the case of the petitioner that in case the recruitment rules were amended in tune with Exts.P2 and Ext.P3 Office Memorandums there would not have been any difficulty in implementing FCS notwithstanding Ext.R2(c) OM.
8. The first respondent has not filed any counter affidavit. Heard the learned counsel for the petitioner as well as the learned Standing Counsel for the 2nd respondent.
9. On consideration of the contentions on either side it is seen that the assessment committee has not stated any reason in Ext.P4 proceedings for arriving at the conclusion that petitioner was unfit. In Ext.P4, his residency period is shown as 7 years and 5 months and marks awarded are 63, whereas the marks required as per Annexure II to Ext.P2 for residency period of 7 years is only 60%. However in the counter affidavit the respondents have stated that his deputation to a non-scientific post for one year and four months was excluded on the basis of Ext.R2(a) Office Memorandum issued on 15.11.2000, which reduced his residency period to 6 years and one month for which 65% marks is required. That means in case the W.P.(C).No.31887 of 2014 8 deputation period was reckoned he would have been found fit for FCS promotion. It is therefore necessary to examine Ext.R2(a) as well as the orders by which petitioner was sent on deputation.
10. According to Ext.R2(a) OM, the period spent on deputation/foreign service to a non-scientific post shall not count towards minimum residency period. The relevant portion of Ext R2(a) OM reads as follows:
"The matter has been considered in all its aspects. It has been decided in consultation with the Ministry of Science & Technology that the period spent on deputation/foreign service to another Scientific post, which helps a Scientific to acquire Scientific experience in a diverse set up and the necessary field experience now made mandatory for promotion to Sr. Scientific posts, as well as the period of Study Leave/any other Leave taken for improving the academic accomplishments shall count towards the minimum residency period necessarily required to be put in the lower grade for promotion to the next higher grade. However, the period spent on deputation/foreign service to a non-scientific post and the period of leave including leave on medical grounds, EOL etc. availed on personal grounds shall not count towards the minimum residency period."
11. It is pertinent to note that petitioner was considered for the FCS in his capacity as Scientist (Economics), as evident from Ext.P4. He was working as an Economist. From Ext.P7 Circular inviting applications from eligible hands for nomination as Economist in Secretariat Association of Natural Rubber Producing Countries, the job description was provided in its appendix. Petitioner asserts that the job of an Economist that is a post held by him was also the same. His deputation was with the approval of Government of India as can W.P.(C).No.31887 of 2014 9 be seen from Ext.P8 order dated 21.06.2007. That being so, there is no justifiable reason either for describing the very same post of Economist as non-scientific or to exclude part of such service on the ground of para 3 of Ext R2(c) saying that it is a non-scientific post.
12. From Ext P7, it would also appear that petitioner was nominated in the interest of the 2nd respondent institution. Such a deputation cannot result in detriment of the petitioner as long as he was not informed of any such consequences.
13. Petitioner has also produced the orders by which the benefit of FCS was granted to several other Economists. Therefore the petitioner cannot be singled out in the matter of extending the benefit of FCS.
14. Even otherwise petitioner is a Scientist as defined under clause V of Rule 2 of Ext.P6 Rules of the Board, as he is a person occupying the post of Scientist B in the Institute directly engaged in research and developmental activities on Rubber. Therefore he is entitled to be considered under FCS introduced as per Ext.P1 treating him as a Scientist for the entire period of 7 years and 5 months including the deputation period taking into account the fact that Economic Research is one of the functions of the Rubber Board in W.P.(C).No.31887 of 2014 10 terms of Section 8(2)(a) of the Rubber Act 1047. At any rate, petitioner cannot be denied the benefit of FCS scheme on any reason other than the one based on which the assessment committee found him unfit. When that reason is non-reckoning of deputation period and when it is found that such exclusion in the case of petitioner is illegal, the petitioner who got 63% marks in the assessment is liable to be assessed as fit for promotion from the date from which it was due to him based on the assessment made on 02.07.2014.
15. Even though, the petitioner has challenged Rule 5.5. of Ext.P6 rules on the assumption that the reason for the denial of promotion was the marks fixed in it contrary to Ext.P2 OM, the respondents do not have a case like that. Therefore, I find it unnecessary to consider the contentions regarding the same.
16. In the above circumstances:-
(i) Exts.P4 and P5 proceedings to the extent it found the petitioner unfit after excluding the period of deputation ordered as per Exts.P8 and P9 and denied promotion under FCS are set aside and declared illegal ;
(ii) there shall be a direction to the 2nd respondent to take expeditious steps for re-considering the case of petitioner for W.P.(C).No.31887 of 2014 11 promotion under FCS from Scientist B to Scientist C in accordance with Exts.P2 and P3 schemes reckoning the entire residency period shown in Ext.P4 without any exclusion on account of deputation and
(iii) to grant him promotion with effect from the due date and to grant all consequential benefits to the petitioner within a period of 'three months' from the date of receipt of a copy of the judgment.
Sd/-
(P.V.ASHA, JUDGE) rtr/AS