Central Administrative Tribunal - Delhi
Ccrum Scientists Welfare Association ... vs Union Of India on 25 February, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A.NO. 1457 of 2012
New Delhi, this the 25th day of February, 2014
CORAM:
HONBLE SHRI ASHOK KUMAR, ADMINISTRATIVE MEMBER
AND
HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER
1. CCRUM Scientists Welfare Association (Regd.),
Through its Secretary,
Dr.S.A.Siddiqui,
S/o late Shri Mahboob Alam,
R/o E-48A, Abdul Fazal Enclave, Jamia Nagar,
New Delhi 110025
2. Dr.Zaki Ahmad Siddiqui,
S/o late Shri Julfiqar Ahmad Siddiqui,
E-32, Shaheen Bagh,
Jamia Nagar,
New Delhi 110025 . Applicants
(By Advocate: Shri Arun Bhardwaj)
Vrs.
1. Union of India,
Through Secretary,
Ministry of Health & Family Welfare,
Nirman Bhawan,
New Delhi 110011
2. Director General,
Central Council of Research in Unani Medicine,
Through its President,
Jawaharlal Nehru Bhawan,
61-65, Institutional Area,
D-Block,Janakpuri, New Delhi.
3. Secretary (AYUSH),
Department of AYUSH, Ministry of H& FW,
IRCS Building, 1, Red Cross Road,
New Delhi 110001 . Respondents
(By Advocates: Shri M.K.Bharadwaj for R-1
& Sh.C.Harishanar for R-2)
ORDER
Raj Vir Sharma, Member(J):
In this Original Application, the applicants have prayed for the following relief:
(i) The Office Memorandum dt.29.3.12 to the extent it withdraws the designation of Assistant Director and Deputy Director already granted to Applicants and to the extent it directs Applicants to continue with the designations of the same posts to which they were appointed prior to the grant of such in situ promotions, may be quashed and set aside being illegal with all consequential benefits.
Cost of the petition be also awarded to the Applicants.
Any other relief which this Honble Tribunal deems fit and proper may be passed in favour of Applicants and against the respondents.
2. Brief facts of the applicants case are that by Government of India, Ministry of Health & Family Welfare, Department of Ayurveda, Yoga & Naturopathy, Unani, Sidha and Homoeopathy (AYUSH), O.M.No.R-13016/46/99-HD(Vol.V), dated 2/3.9.2008 (Annexure A-6), the benefits under the Department of Health (Group A Gazetted Non-Medical Scientific and Technical Posts) In Situ Promotion Rules, 1990, notified on 28.11.1990 (hereinafter referred to as In Situ Promotion Rules,1990) were extended to the Medical Doctors and Non-Medical Scientists in the three Central Research Councils, namely, Central Council for Research in Ayurveda and Sidha (CCRAS), the Central Council for Research in Unani Medicine (CCRUM) and the Central Council for Research in Homoeopathy (CCRH) functioning under the Department of Ayush, Ministry of Health and Family Welfare. By O.M. dated 30.4.2010 (Annexure A-8) issued by Respondent No.3, the benefits of the In-Situ Promotion Rules 1990 were extended to Medical Doctors and Non-Medical Scientists of the said three Councils with retrospective effect from 23.3.2001.
2.1 Respondent No.3, by O.M. dated 12.9.2011 (Annexure A-10), decided that the persons to whom the benefits under the In-situ Promotion Scheme-2008 is extended/shall be extended shall continue to maintain the designation of the post to which they were appointed prior to the grant of In-situ promotion.
2.2 Consequent upon the clarification issued by the Department of AYUSH (respondent no.3) vide O.M. dated 12.9.2011 (Annexure A-10), respondent No.2-CCRUM issued O.M. dated 29.3.2012 (Annexure A-1) whereby the Councils corrigendum, dated 5.8.2009, stipulating that the officers on in-situ promotion to the Scientist Level II and Scientist Level III or IV shall be designated as Assistant Director and Deputy Director respectively in their respective discipline, was withdrawn with immediate effect. It was also stipulated therein that the officers upgraded under the In-situ Promotion Scheme 1990 shall continue to maintain the designation of the post to which they were appointed prior to the grant of in-situ promotion or the designation that they had acquired by virtue of their promotion to a regular sanctioned post through DPC along with Scientist Level to which they have been upgraded being indicated in parenthesis as Scientist Level II or Scientist Level III, etc., as the case may be.
2.3 Being aggrieved by the aforesaid decisions of respondent nos.3 and 2, vide Annexures A-10 and A-1 respectively, the applicants have filed the present O.A. 2.4 It has been contended by the applicants that the Executive Body of the CCRUM (respondent No.2), vide its minutes dated 17.12.1998(Annexure A-3), decided that all the Officers-in-charge of the Regional Research Institutes have to be re-designated as Deputy Directors and that when these officers are posted to Headquarters, they will be designated as Assistant Directors. The officers of different levels, who were granted in-situ promotions to the next higher levels in accordance with the In-Situ Promotion Rules, were so promoted to the grade of Assistant Director, or Deputy Director, etc., as the case may be. This position, according to the applicants, was also indicated in the counter reply filed by the respondents before this Tribunal in TA No.175 of 2009. In view of this, the applicants submit that the impugned decisions (Annexures A-10 and A-1) withdrawing the designations of Assistant Director and Deputy Director granted to applicant no.2 and the members of applicant no.1 Association consequent upon their in-situ promotion in accordance with the In-Situ Promotion Rules 1990 are bad, arbitrary and illegal and hence liable to be quashed.
3. Respondent nos. 1 and 3 have filed a counter reply resisting the claim made by the applicants. It is stated by them that the minutes of the meeting of the Executive Body of the Council held on 17.12.1998 pertain to the internal affairs of the Council, and that respondent no.3 has nothing to do with the same. The said respondents state that the In-Situ Promotion Rules 1990 nowhere stipulate that officers on in-situ promotion to the Scientist Level II and Scientist Level III or IV shall be designated as Assistant Director and Deputy Director respectively in their respective disciplines. It is pointed out by the said respondents that the Department of Health (Group A Gazetted Non-Medical Scientific and Technical Posts) In Situ Promotion Rules, 1990 were extended to the officers of respondent no.2-Council by the O.M. dated 2/3.9.2008. Referring to Rules 2(f) and 4 of the In-Situ Promotion Rules 1990, the said respondents have submitted that in-situ promotion of the officers of CCRUM from the existing Scientist level to the next higher Scientist level does not involve any change in the post or in the designation in as much as such in situ promotion is personal to them.
4. Respondent no.2 has filed a separate counter reply also resisting the claim of the applicants. It is stated by the said respondent that the Recruitment Rules pertain to grant of promotion in the cadre on functional basis, and that posts in higher grades are fixed. The In Situ Promotion Rules 1990 provide for financial upgradation in a time bound manner on in-situ basis. The minutes of the Executive Body are not relevant to the case. Under the Recruitment Rules, the vacancies in the post of Deputy Director (Institutes)/Assistant Director (Headquarters) are filled up 100% by promotion from the feeder grade of Research Officer (Unani) with five years regular service on all India seniority basis. Similarly, appointment to the post of Director, CRIUM and Joint Director (Headquarters) is made 100% by promotion from the grade of Deputy Director/Assistant Director(Headquarters) in the pay scale of Rs.10,000 -15200/- with five years regular service on all India seniority basis. It is submitted by the said respondent that Recruitment Rules and the In Situ Promotion Rules 1990 are two different Rules. Promotion to higher grade/post under the Recruitment Rules is based on occurrence of vacancy in the said higher grade/post, whereas in-situ promotion is made to the next higher Scientist level in a time bound manner and not against any vacancy in the higher post/grade.
5. The applicants have filed rejoinders to the respondents counters, refuting the stands taken by the respondents. In the rejoinders, the applicants have, more or less, reiterated the same averments and grounds as in the O.A.
6. We have perused the pleadings and heard the learned counsel appearing for the parties. We have also carefully gone through the decision in the case of Shergill G v Delhi State Civil Supplies Cop Ltd., 140(2007)DLT 140, cited by the learned counsel appearing for the applicants.
7. From the pleadings, the following issues arise for our determination:
(1) Whether the In-Situ Promotion Rules 1990 and the O.M. dated 2/3.9.2008 issued by the Department of AYUSH (respondent no.3) prescribe that the designation of the officers, on their in-situ promotion from the existing Scientist level to the next higher Scientist level under the In-Situ Promotion Rules 1990, shall be changed as Deputy Director/Assistant Director (Headquarters), or Joint Director/Deputy Director (Headquarters), as the case may be?
(2) Whether the respondents were justified in issuing the O.M. dated 12.9.2011 (Annexure A-10) and O.M. dated 29.3.2012 (Annexure A-1)? And (3) Whether the applicants are entitled to any relief?
8. Issue No.(1): For the purpose of deciding this issue, it is necessary to refer to Rules 2(f)& (g), 4 and 9 of the In-Situ Promotion Rules, 1990, which read thus:
2. Definitions-In these rules unless the context otherwise requires:
(f) In situ promotion means personal promotion of a candidate holding any post in Annexure II from the existing Scientist Level to the next higher Scientist Level without any change in the post or in the designation thereof.
(g) Scientist Level means the level indicated against the respective posts under column 4 of Annexure II.
xx xx
4. Categorization of scientists levels.-(1) Without prejudice the recruitment rules relating to the posts specified in Annexure II, all Group A scientific and technical officers who are working in the Department on a regular basis and were holding on the date of commencement of these rules, the posts specified in column (1) of Annexure II, shall be deemed to have been appointed to the corresponding posts specified in column 4 with Scientists levels specified in column 4 respectively of Annexure II for the purpose of application of these rules governing In Situ Promotion provided they possess the minimum qualifications prescribed in Annexure I. Provided that the Central Government may, in consultation with the Commission and for reasons to be recorded in writing re-categorize the Scientist Level or any of the posts referred to in Annexure II or Annexure III.
(2) The inter-se seniority of officers in each grade shall be determined in accordance with the date of their regular appointment to the respective grades:
Provided that their inter se seniority within the respective grade shall not be disturbed.
(3) The regular and continuous service of officers referred to in sub-rule (1) in the posts specified in column (2) of Annexure II which they were holding on regular basis prior to their deemed induction into corresponding posts with the corresponding Scientist Levels specified in column 4 of Annexure II shall count as qualifying service for the purpose of in (sic) promotion under these rules.
xx xx
9. Upgradation on promotion.-Where an officer is promoted under these rules, the grade of the post immediately held by him shall stand upgraded to the next higher level to which he has been promoted and shall revert to the original level on the vacation of it by the officer holding it:
Provided that where an officer is promoted further to higher levels in the course of time, the grade of the post shall continue to be upgraded to the level to which he has been promoted as personal to him and shall revert back to the level of original recruitment to the post, i.e., level 1, 2,3 or 4 as shown in the column 4 of Annexure II. 8.1 It is also necessary to quote the relevant provisions contained in the O.M. dated 2/3.9.2008 (Annexure A-6) by which the benefits under the In Situ Promotion Rules 1990 were extended to the Central Council for Research in Unani Medicine (CCRUM) as follows:
i. The details of posts to which the promotions would become applicable and the strength of the Group A Medical and Non-Medical posts shall be as specified in Annexure-1.
ii. Without prejudice to the Recruitment Rules for the posts specified in Annexure-I, all Group A Medical and Non-Medical Scientists who are working in the CCRAS, the CCRUM and the CCRH and were holding on the date of commencement of these rules, the posts specified in column 2 of Annexure-I shall be deemed to have been appointed to the corresponding posts with the Scientists levels specified in column 5 of Annexure-I for the purpose of application of these rules provided they possess the prescribed minimum qualification of a Masters Degree or equivalent in the subject concerned from a recognized University.
Scientist I level officers working in scale of pay of Rs.2200-4000 (revised scale of Rs.8000-13500 equivalent to the post of Research Officer in the Research Councils) shall be promoted to the S-2 level in the scale of pay Rs.3000-4500 (revised scale of Rs.10000-15200 equivalent to the post of Assistant Director in Research Councils) on completion of 5 years of regular service in the scale of pay of Rs.2200-4000 (revised scale of Rs.8000-13500) on the basis of assessment;
Scientist 2 level officers working in the scale of pay of Rs.3000-4500 (revised scale of Rs.10000-15200) shall be promoted to level S-3 in the scale of pay of Rs.3700-5000 (revised scale of Rs.12000-16500 equivalent to the post of Deputy Director (Institute) in the Research Councils) on completion of five years of regular service in the grade of Rs.3000-4500/Rs.3000-5000 on the basis of assessment;
Scientist 3 level officers working in the scale of pay of Rs.3700-5000 (revised scale of Rs.12000-16500) shall be promoted to the Scientist 4 level in the scale of Rs.4500-5700 (revised scale of Rs.14300-18300 equivalent to the post of Director (Institute) in the Research Councils) with five years of regular service in the scale of pay of Rs.3700-5000 (revised scale of Rs.12000-16500) on the basis of assessment.
The above promotions will be on the principle of in-situ promotion without any reference to the vacancies but on the basis of assessment and subject to standards of performance expected from medical and non-medical scientists in similar scientific establishments. The composition of the Assessment Board to assess the suitability of the scientists for promotion and guidelines for in-situ promotion are indicated in Annexure-II.
The inter-se seniority of officers in each grade shall be determined in accordance with the date of their initial appointment on a regular basis to the respective grade.
These orders will come into effect from the date of issue and in-situ promotion shall take effect prospectively only. xx xx 8.2 So far as Central Council of Research in Unani Medicine (CCRUM) is concerned, Annexure-I to the said O.M. dated 2/3.9.2008 reads thus:
CCRUM Number of posts Medical Non-Medical 1 2 3 4 5 1 Joint Director,HQ(Tech) Director(CRIUM) 01 0 Joint Director (Hqrs) Director(CRIs) 14,300-18,300/-(S4) 2 Assistant Director (Hqs) Deputy Director(CRIs/RRIs) 01 02 Deputy Director (CRIs/RRIs/(Hqs) (S-3) 12,000-16,500(S-3) 3 Research Officer (U) 132 32 Assistant Director 10,000-15,200 (S-2) 8.3 From a combined reading of the above quoted provisions of the In Situ Promotion Rules 1990, the O.M. dated 2/3.9.2008,and Annexure I, it is clear that in situ promotion is a personal promotion of an officer holding any post from the existing Scientist Level to the next higher Scientist Level without any change in the post or in the designation thereof. On such in situ promotion of an officer, the grade of the post immediately held by him shall stand upgraded to the next higher Scientist level to which he has been promoted. Scientist I level officers working in scale of pay of Rs.2200-4000 (revised scale of Rs.8000-13500 equivalent to the post of Research Officer in the Research Councils) shall be promoted to the S-2 level in the scale of pay Rs.3000-4500 (revised scale of Rs.10000-15200 equivalent to the post of Assistant Director in Research Councils) on completion of 5 years of regular service in the scale of pay of Rs.2200-4000 (revised scale of Rs.8000-13500) on the basis of assessment. Scientist 2 level officers working in the scale of pay of Rs.3000-4500 (revised scale of Rs.10000-15200) shall be promoted to level S-3 in the scale of pay of Rs.3700-5000 (revised scale of Rs.12000-16500 equivalent to the post of Deputy Director (Institute) in the Research Councils) on completion of five years of regular service in the grade of Rs.3000-4500/Rs.3000-5000 on the basis of assessment. Scientist 3 level officers working in the scale of pay of Rs.3700-5000 (revised scale of Rs.12000-16500) shall be promoted to the Scientist 4 level in the scale of Rs.4500-5700 (revised scale of Rs.14300-18300 equivalent to the post of Director (Institute) in the Research Councils) with five years of regular service in the scale of pay of Rs.3700-5000 (revised scale of Rs.12000-16500) on the basis of assessment. The above promotions will be on the principle of in-situ promotion without any reference to the vacancies, but on the basis of assessment and subject to standards of performance expected from medical and non-medical scientists in similar scientific establishments. It has been laid down that on in situ promotion, an officer is promoted to the next higher Scientist level and not to any higher post. The post and pay scale have been mentioned in column 5 of Annexure-I only to exemplify as to the Scientist level and pay scale to which an officer would be entitled on his in situ promotion. Thus, it cannot be construed that an officer gets promoted to a higher post on his in situ promotion from the existing Scientist level to the next higher Scientist level. In the O.M. No.13016/46/1999-HD, dated 30.4.2010 (Annexure-8), issued by the Department of AYUSH(respondent no.3), it has been mentioned that before introduction of the in-situ promotion scheme, ACP scheme dated 9.8.1999 was introduced in the Councils wherein employees were allowed promotion after 12 years and 24 years respectively. Since the proposal for in-situ promotion is to be implemented retrospectively from 23.3.2001, ACP benefits cannot be availed concurrently. In the event of the in-situ scheme being introduced retrospectively with effect from 23.3.2001, the ACP scheme already availed by the employees of the Councils will stand withdrawn. Accordingly, it was, inter alia, laid down in the said O.M. dated 30.4.2010 that those employees who have already availed of ACP benefits and would wish to opt for the new scheme, would have to surrender the benefits availed which would be merged with the benefits available under the new scheme, and that those employees who opt for continuing in the old ACP Scheme dated 9.8.1999 would, however, receive only those benefits which would accord to them under the said ACP Scheme along with the modifications issued by the Government from time to time, but they would not be considered under the new in-situ promotion scheme for grant of any benefit under the later scheme. Thus, the promotion earned by an officer under the In-situ Promotion Rules 1990 is in the nature of financial upgradation as prescribed in the ACP Scheme dated 9.8.1999 issued by the Government of India. The conclusion is, therefore, irresistible that the In Situ Promotion Rules 1990 and the O.M. dated 2/3.9.2008 issued by the Department of AYUSH (respondent no.3) do not lay down that the designation of an officer, on his in-situ promotion from the existing Scientist level to the next higher Scientist level under the In-Situ Promotion Rules 1990, shall be changed corresponding to the grade/post of Deputy Director/Assistant Director (Headquarters), or Joint Director/Deputy Director (Headquarters), or Director/Joint Director (Headquarters) as the case may be. Accordingly, issue No.(1) is decided against the applicants and in favour of the respondents.
9. Issue No.(2): The applicants have not produced any material before us showing that consequent upon implementation of the O.M. dated 2/3.9.2008 and grant of in situ promotion to the next higher Scientist level, any of the members of applicant No.1 Association or applicant no.2 was designated as Assistant Director, or Deputy Director, as the case may be. From the memorandum dated 30.7.2009 (annexed to MA No.1920 of 2012 filed by respondent no.2) it is seen that several Research Officers (U) were promoted in situ and placed in the next higher level, i.e., Scientist 2 (S2) and they were not designated as Assistant Director or Deputy Director. After the said memorandum dated 30.7.2009 was issued, the respondent no.2 issued a corrigendum dated 5.8.2009(annexed to the said MA No.1920 of 2012 filed by respondent no.2) stating that the designations on in situ promotions might be amended and the officers upgraded to Scientist II shall be designated as Assistant Directors and those upgraded to Scientists III and IV shall be designated as Deputy Directors. By O.M. dated 12.9.2011 (Annexure A-10), the Department of AYUSH (respondent No.3) clarified that the persons to whom the benefits under the in situ promotion scheme are extended or shall be extended shall continue to maintain the designation of the post to which they were appointed prior to the grant of in-situ promotion. Consequent upon the said clarification (Annexure A-10), the Central Council of Research in Unani Medicine (CCRUM) issued O.M. dated 29.3.2012 (Annexure A-1), withdrawing its corrigendum dated 5.8.2009 and laying down that officers upgraded under in situ promotion scheme shall continue to maintain the designation of the post to which they were appointed prior to the grant of in situ promotion or the designation that they had acquired by virtue of their promotion to a regular sanctioned post through DPC along with Scientist level to which they have been upgraded. In view of our finding on issue no. (1), the office memorandum dated 29.3.2012 (Annexure A-1), being in conformity with the In Situ Promotion Rules 1990 and the O.M. dated 2/3.9.2008 (Annexure A-6), cannot be faulted. Therefore, issue no.(2) is decided against the applicants and in favour of the respondents.
10. Issue No.(3): In view of our findings on issue nos. (1) and (2) as above, the applicants are not entitled to the relief as claimed by them in the O.A.
11. In the result, the Original Application being devoid of merit is dismissed. The interim order passed by the Tribunal on 30.5.2012 stands vacated. No costs.
(RAJ VIR SHARMA) (ASHOK KUMAR) JUDICIAL MEMBER ADMINISTRATIVE MEMBER AN