Central Administrative Tribunal - Delhi
Dr. Atul Kumar Gupta vs Union Of India (Uoi) And Ors. on 3 February, 2000
JUDGMENT
V. Rajagopala Reddy, Vice-Chairman
1. The brief facts of the case are as under:
The applicant who was an employee of the Central Government, was appointed as Scientific Assistant (Chemistry) in the Homeopathic Pharmacopoeia Laboratory (for short H.P. Laboratory), Department of Health, Government of India at Ghaziabad, U.P. It is submitted that the Ministry of Health created one post of Senior Scientific Assistant (Chemistry) (SSA (C) for short) and three posts of Research Officers, i.e. (i) Research Officer (Plant and Introduction), (ii) Research Officer (Homeopathy) and (iii) Research Officer (Chemistry) were created in 1987. We are concerned with two posts of SSA (C) and Research Officer (C). The said posts could not be filled up till 1992 when the Recruitment Rules were promulgated. As per the recruitment rules the next higher post of SSA (C) has to be filled up by promotion from the post of Scientific Assistants (Chemistry) with five years' regular service in the grade failing which by transfer on deputation. The post of Research Officer (C) is to be filled by way of promotion /transfer on deputation, failing which by direct recruitment. SSA (C) in the H.P. Laboratory with three years regular service is entitled for promotion by way of selection. Officers holding analogous posts in Central Government with 8 years service in posts in grade Rs. 1400-2300/2600, among others, are also entitled for consideration by way of transfer on deputation. Though he became eligible for the said post of SSA (C) in March, 1988 he was promoted as SSA (C) in 1993. The applicant submits that the post of Research Officer (Plant Introduction) was required to be filled up by promotion/transfer on deputation. Though the same was kept vacant, it was filled up in 1995 by promotion of one Dr. Rajat Rashmi. It is submitted that the post of Research Officer (Plant Introduction) and Research Officer (Chemistry) were deemed to be lapsed/abolished in view of the Government instructions dated 3.5.93 and 29.5.94, As per the above instructions if a post is kept vacant for a period of one year from the date of creation of the post, the post would be deemed to be lapsed/abolished. But in spite of the same Dr. Rajat Rashmi has been appointed as Research Officer (Plant Introduction) in 1995 reviving the lapsed post.
2. It is the grievance of the applicant and Shri G.D. Gupta, learned Senior Counsel for the applicant strenuously contends that as the post of Research Officer (Plant Introduction) which has been lapsed, has been revived in 1995 and one Dr. Rajat Rashmi has been promoted in the said post, there was no reason for not reviving the post of Research Officer (Chemistry) and appointing the applicant in the said post and hence the action of the respondents is discriminatory.
3. It is next contended that the recruitment rules for the post of Research Officer (C) are discriminatory and violative of Articles 14 and 16 of the Constitution as Research Assistants (C) with 8 years of service are not made eligible for promotion whereas officers outside the department with analogous posts in the same grade are made eligible by way of transfer on deputation.
4. It is the case of the respondents that the post of Research Officer (C) got lapsed in view of the instructions issued in May, 1993 to treat a post as lapsed/abolished which remained vacant for more than one year. By the time the post lapsed in 1995 the applicant was not eligible to be promoted as he has completed only two years of service as Senior Scientific Assistant. Hence he can have no grievance for the abolition of the post.
Consequent upon the finalisation of the recruitment rules the applicant was promoted as Senior Scientific Assistant (Chemistry) w.e.f. 3.3.93 and he joined the post without any protest. It is averred that it is for the UPSC to classify the posts and fix the qualifications and experience for each post and the applicant cannot make any grievance on any ground. The allegation of discrimination is denied. It is further averred that the process of filling up the post of Research Officer (Plant Introduction) was initiated before March, 1993 and an advertisement was also given calling for application and hence the post of Research Officer (Plant Introduction) was revived. It is also stated that the said post was the only post of its kind in the Pharmaceutical Chemistry Division of Pharmacopoeia Laboratory and it needed to be revived as a priority post. The post of Research Officer (Chemistry) was not revived as no steps were taken to fill up the post. It is not contended that the rules for promotion to the post of Research Officer (C) are not discriminatory.
5. We have given careful consideration to the arguments raised on either side and also perused the pleadings and the annexures closely.
6. The facts arc not in dispute in this case. As stated supra the applicant was appointed as a Scientific Assistant (Chemistry) in 1988 in the revised scale of Rs. 1400-2300. It is true that in 1987 itself two posts, one Senior Scientific Assistant (Chemistry) in the scale of Rs. 1640-2900 and other of Research Officer (Chemistry) in Rs. 2000-3500 were created in the Chemistry Division. The recruitment rules for filling up these posts could not be finalised and hence these posts were left unfilled. The rules were framed in 1992. As per the recruitment rules the Scientific Assistants (Chemistry) with five years regular service are entitled to be promoted to the post of Senior Scientific Assistant. For the post of Research Officer (Chemistry) SSA with three years service is entitled to be considered for promotion. As the applicant was eligible for promotion as he had more than five years of service he was promoted to the post of Senior Assistant on 3.1.93. It is true, as contended by the learned Counsel for the applicant that the respondents could have promoted the applicant to the post of SSA on ad hoc basis even prior to the recruitment rules had come into force. But it is stated in the counter-affidavit that the Ministry had not considered it necessary to fill up the post on ad hoc basis. It has also to be noticed that even if there is a regular vacancy for a post no employee can make a claim for filling up the post vide Dr. N.C. Singhal v. Union of India and Ors., 1980(3) SCC 29.
7. Moreover, the applicant did not make any grievance when he was appointed as SSA during 1993. He joined the post without any protest and he did not agitate before any forum that he should have been appointed as SSA with retrospective effect from the date of his acquiring eligibility.
8. The argument of the learned Counsel for the applicant is that when the employees outside the department with 8 years service in the grade of Rs. 1400-2300/2600 are made eligible the departmental Scientific Assistants (Chemistry) in the same grade were not made eligible though with 8 years regular service in the said grade. It is also argued to bring out further discrimination that as far as Research Officer (Plant Introduction) is concerned, rules provide for the same facility of promotion for the Scientific Assistants (Plant Introduction) with 8 years service. It is, therefore, contended that to this extent the recruitment rules of the post of Research. Officer (Chemistry) are discriminatory and violative of the Articles 14 and 16 of the Constitution. We do not agree. It has to be noted that what qualifications and experience that have to be stipulated in the recruitment rules for each post is in the domain of the Ministry concerned. The post of Research Officer (Plant Introduction) belongs to a different laboratory in different department of Botany. The post of SSA (Chemistry) has been created in the Chemistry Division of Homeopathic Pharmacopoeia Laboratory and the DOP&T as stated in the counter has considered that the experience of SSA was needed for the post of Research Officer. When there is an intervening post between the lower post and the higher post the promotion of departmental candidate will have to be made first to the intervening post and then to the higher post. The same is not the situation in the case of Research Officer (Plant Introduction) while there is no intervening post. Further, the applicant having joined the post of SSA in 1993 itself it is no longer open to him to raise this objection as to his eligibility for promotion to the post of Research Officer (Chemistry) from the post of Scientific Assistant or to the vires of the rules on this ground. He is no longer a Scientific Assistant. Thus no parallel can be drawn between the rules pertaining to two different parts. Hence, the difference in the recruitment rules cannot be said to be discriminatory as violative of Articles 14 and 16 of the Constitution.
9. It is next contended by the learned Counsel that there is discrimination in the matter of not reviving the post of Research Officer (Chemistry) whereas the post of Research Officer (Plant Introduction) has been revived in 1995. In the counter-affidavit it has been clearly explained why the post of Research Officer (Plant Introduction) has been revived in 1995. It was stated that the process of filling up the post of Research Officer (Plant Introduction) was started before 1993. Advertisement has also been issued, calling for applications. It was also stated that a decision was taken by the concerned department to fill up the post that in addition to the facts it was the only post of its kind in the Pharmacopoeia Section of Laboratory. Hence, it cannot be said that the respondents have shown discrimination in reviving the post without reviving the post of Research Officer (Chemistry). There is no reason why the explanation given by the respondents cannot be accepted. Moreover, we do not see how the applicant is aggrieved by the revival of the post of Research Officer (Chemistry) in 1995 along with the post of Research Officer (Plant Introduction), as the applicant was not eligible for the said post even if it had been revived in 1995. Since he was appointed in January 1993 in the post of SSA he would be eligible for the post of Research Officer only in 1996. On the date of filing of the OA he was not eligible for the post of Research Officer (Chemistry). We do not see how the applicant could question the action of the respondents in this regard. We are also of the view that the creation and abolition of the post is a matter of Government policy. In Dr. Singhal's case the Court observed :
"The need for the post or the requirements of the hospital or the need for an ad hoc or additional appointment is a matter which the Government is competent to decide and in the absence of requisite material the court cannot interpose its own decision on the necessity of creation or abolition of posts. Whether a particular post is necessary is a matter depending upon the exigencies of the situation and administrative necessity. The Government is a better judge of the interests of the general public for whose service the hospitals are set up. And whether a hospital catering to the needs of general public providing medical relief in different specialities has need for a particular post in a particular speciality would be better judged by the Government running the hospital. If Government is a better judge it must have the power to create or abolish the posts depending upon the needs of the hospital and the requirements of general public. Creation and abolition of posts is a matter of Government policy and every sovereign Government has this power in the interest and necessity of internal administration. The creation or abolition of post is dictated by policy decision, exigencies of circumstances and administrative necessity. The creation, the continuance and the abolition of post are all decided by the Government in the interest of administration and general public."
10. The learned Counsel for the applicant places reliance upon Ismail Abdul Latif Shaikh v. State of Maharashtra and Anr., 1996(2) SLR 42, in support of his contention. In this case the appellant an Excise Inspector was interviewed but he was not promoted on the ground that his chest measurement was less than the standard measurement. It was found that two other persons were promoted despite their being below the required height. The Court therefore, held that the same benefit has to be made available to the appellant. We are of the view that this judgment has no assistance to the applicant. In the instant case the respondents have given the explanation in what circumstances the post of Research Officer (Plant Introduction) has been revived and we are satisfied that the same circumstances were not available with regard to the post of Research Officer (Chemistry).
11. In B.K. Mohapatra v. State of Orissa, 1980(8) SLR 88, the question as to giving the benefit of the entire past service rendered by one group of Government servants has been considered. As the Court found that by working the scheme one group of Teachers of the Ex-District Board High Schools were found benefitted by the length of continuous service in the respective cadre for the purpose of reckoning seniority whereas the other group of Teachers in the Government schools were not given the same benefit. The Court held that the scheme formulated by the Government was irrational. The facts are entirely different and has no bearing on the question of revival of a post.
12. Lastly the learned Counsel relies upon State of Mysore and another v. H. Srinivasmurthy, AIR 1976SC 1104. In this case the Court found that the petitioner there in had been discriminated against since others who were similarly situated were absorbed in the Polytechnics from the date they initially joined duties and that there was no justification to depart from the said principle. We are of the view that this case does not help the applicant, either.
13. All the contentions raised are rejected.
14. We do not, therefore, find any merit in the OA. The OA is accordingly dismissed. No costs.