Central Administrative Tribunal - Delhi
Prem Prakash Sharma vs Union Of India Through on 6 September, 2011
Central Administrative Tribunal Principal Bench OA No.3692/2010 New Delhi, this the 6th day of September, 2011 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Prem Prakash Sharma, Statistician at LRS Institute of TB & Respiratory Diseases, Sri Aurobindo Marg (Near Qutab Minar), New Delhi, R/o N-41/B, Gali No.4, Vijay Vihar, Uttam Nagar, New Delhi-110059. Applicant ( By Shri Devesh Singh, Advocate ) Versus 1. Union of India through Secretary, Ministry of Health & Family Welfare (Department of Health), Nirman Bhawan, Maulana Azad Road, New Delhi-110011. 2. Secretary, Department of Personnel and Training (Establishment D Section), North Block, New Delhi. 3. Lala Ram Sarup Institute of TB & Respiratory Diseases through its Director Sri Aurobindo Marg, (Near Qutab Minar), New Delhi-110030. Respondents ( By Ms. Nidhi Bisaria, Advocate ) O R D E R Dr. Ramesh Chandra Panda, Member (A) :
The applicant, who holds the post of Statistician in Lala Ram Sarup Institute of TB and Respiratory Diseases (LRS Institute in short), seeks in situ promotion, at par with his counter parts in other similar Institutes, his post not being in any hierarchy, whereas the respondents granted him benefit of Assured Career Progression (ACP) Scheme, but would state that he would not be entitled for in situ promotion. We may, at the very outset, mention that whereas, financial upgradation benefit of ACP Scheme is granted to an employee if there are no promotional avenues, at the most, twice in his entire service career, on completion of 12 and 24 years of service, whereas in situ promotion is periodical upgradation where upgradation of pay is considered every five years up to a particular level. Both ACP Scheme and in situ Flexible Complementing Scheme (FCS) have the respective guidelines. The applicant visited this Tribunal on an earlier occasion when he filed OA No.947/2009, which was disposed of by us with directions to be referred to hereinafter, vide order dated 16.12.2009. Inasmuch as, the facts of the case and the basis on which the applicant claims in situ promotion continue to be the same as were when the applicant visited this Tribunal for the first time, we bodily lift our order dated 6.12.2009 up to paragraph 8, thus:
The grievance of the Applicant is that the Respondents are treating him to be holding an isolated post under the third Respondent, Lala Ram Sarup Institute of TB & Respiratory Diseases (hereafter the Institute), as a result of which he has been denied the benefit of in situ promotion, which has been given to employees similarly situated as the Applicant in the Institute and other institutions under the first Respondent, the Ministry of Health and Family Welfare, Government of India. His request for in situ promotion has been rejected by the third Respondent, in consultation with the first and the second Respondent, by the impugned order dated 28.08.2007 at Annex R-1. The following reliefs have been asked for:
a. To set aside order dated 28.8.2007 passed by the respondents treating applicants post as an isolated post;
b. To direct the respondents to frame appropriate rules within a specific time period providing for suitable promotional avenues to the applicant on the post of Statistician which is Group A Non Medical Scientific and Technical Post in the LRS Institute of Tuberculosis and Respiratory Diseases or in the alternative direct the respondent no.3 to adopt the rules framed by the Ministry of Health and Family Welfare at par with other Group A Non Medical Scientific and Technical posts in various other Medical Institutes under the Ministry of Health and Family Welfare and to give benefit of the same to the applicant;
c. To direct the respondents that the post of Statistician may also be re designated/ categorized as Scientist I as has been done in other organizations which are following the Govt. of India rules and regulations and that these rules issued by Govt. of India be utilized mutatis mutandis for providing in situ promotion to the applicant;
d. To provide that as a Group A Non Medical Scientist with LRS Institute the applicant is entitled to all such allowances as are available to similarly placed persons in other Institutes;
e. For any other relief or consequential relief for which the applicant may be found entitled to in the attending facts and circumstances of the case.
2. The Applicant has been working in the Institute in the post of Statistician from 1.02.1994 in the scale of Rs.8000-13500 (revised). The post is not in any hierarchy, as a result of which the Applicant has remained in the same post, without any promotion.
3. The Institute, which was set up in 1952, was taken over by the Government of India in 1991. It is now an autonomous institute under the Union Ministry of Health and Family Welfare. The Secretary, Ministry of Health and Family Welfare is the Chairman of its Governing Body. It is governed by the bye-laws framed under Rule 46 of the Lala Ram Sarup Institute of Tuberculosis and Respiratory Disease Bye-Laws 1992. The bye-laws and schedule to bye-laws, adverted to in the OA are extracted below:
14. Creation, abolition and Classification of Posts The Governing Body shall be the authority competent to create posts, subject to specific provisions in the budget and observance of economy instructions and the guidelines as may be issued by the Government of India from time to time, on scales of pay applicable to similar posts under the Government or on scales of pay approved by the Government, classify them into grades and specify their designations. xxxx xxxx xxxx xxxx 26. Scales of pay of Posts The scales of pay and allowances for the posts in the Institute shall be as given in the Appendix.
Provided that nothing contained in this Bye-Law shall adversely affect any existing employee holding any post specified in the Appendix and carrying a higher scale of pay than that specified against such posts in the Appendix. The Governing Body with prior approval of the Government shall be competent to make changes in the pay scale of any post or category/ categories of post as may be deemed necessary from time to time. xxxx xxxx xxxx xxxx 31. Application of Fundamental Rules & the Supplementary Rules In regard to all matters concerning the service conditions of the employees of the Institute, the fundamental and supplementary Rules and General Financial Rules framed by the Government and such other Rules and orders issued by the Government from time to time shall mutatis mutandis apply to the employees of the Institute. xxxx xxxx xxxx xxxx 42. Other Conditions of Service In respect of matters not provided for in these Bye-Laws, the rules as applicable to Central Government Servants regarding the general conditions of service, pay, allowances including traveling and daily allowances, leave salary, joining time, foreign services terms etc. and orders and decisions issued in this regard by the Central Government from time to time shall apply mutatis mutandis to the employees of the Institute. Schedule:
Statement showing the posts Visualized for the Institute S.No. Post Scale of Pay Scale of Pay (pre-revised) (revised) xx xx xx
10. Statistical 2200-75-2800-EB-100-4000 8000-275-13500 Officer
4. In November 1990, the first Respondent, Ministry of Health and Family Welfare notified rules called the Department of Health (Group `A Gazetted Non-Medical Scientific and Technical Posts) In situ Promotion Rules, 1990 (hereafter Rules of 1990). These were applicable retrospectively from 15.11.1989. The Rules 8 and 9 of the aforesaid Rules of 1990 are reproduced below:
8. The Schedule of Promotion - (1) A scientific or technical Officer holding Group A post shall be eligible for promotion upto and including the grade of Scientist 4 level carrying a pay scale of Rs.4500-5700 as follows :-
(a) Scientist 1 level officers working in the grade of Rs.2200-4000 shall be promoted to the S-2 level in the grade of Rs.3000-4500 (non-teaching) [Rs.3000-5000 (teaching) on completion of 5 years of regular service in the grade of Rs.2200-4000 on the basis of Assessment.
(b) Scientist 2 level Scientists/officers working in the grade of Rs.3000-4500/ Rs.3000-5000 shall be promoted to S-3 level in the scale of Rs.3700-5000 on completion of 5 years of regular service in the grade of Rs.3000-45000/ Rs.3000-5000 on the basis of Assessment.
(c) Scientist 3 level scientists/officers working in the grade of Rs.3700-5000 shall be promoted to Scientist-4 level in the scale of Rs.4500-5700 on completion of 5 years of regular service in the grade of Rs.3700-5000 on the basis of Assessment.
2. Promotion to the 8 floating posts in the Scientist level 5 in the scale of Rs.5900-6700, shall be made from a common eligibility list of all non-medical Scientists having at least three years of regular service in the scale of Rs.4500-5900, the eligibility list being drawn on the basis of the length of their regular service in the scale of Rs.4500-5900.
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.
xxxx xxxx xxxx QUALIFICATIONS MASTERS DEGREE IN SCINECE OR BACHELORS DEGREE IN ENGINEERING / TECHNOLOGY FROM A RECOGNIZED UNVERSITY/ INSTITUTION OR EQUIVALENT. Annex-II to the Rules of 1990 provided a list of Group `A Non-Medical Scientific & Technical Posts under DGHS/Ministry of Health & F.W. Annex-III gives a list of 21 institutes/ hospitals to which these Rules of 1990 are applicable. The Institute is not included in this list of 21, because it had not yet been taken over by the Union Government.
In 1997, the Applicant approached the Director of the Institute to consider him for promotion to the next higher scale on in situ basis. Eight representations, placed at Annex 7 (colly), were made during the year. In 1998, the Respondent-Institute asked the Applicant whether any organization under the Government had considered the post of Statistician as post of Scientist or Research Officer. The Applicant informed the Respondent by a letter dated 20.11.1998 that the Indian Council of Medical Research (ICMR), an autonomous body under the first Respondent, had treated the post of Statistician as a scientific post and redesignated it as Research Officer (Statistics), to which rules of in situ promotion were applicable. The ICMR further redesignated the post of Research Officer as Scientist B, in the scale of Rs.8000-13500 (Annex A-9, colly). The Applicant then sent reminders on 9.02.2000, placed at Annex A-10 and 2.06.2000, at Annex A-11. By his reminder dated 27.07.2000 the Applicant informed the Respondent Institute regarding redesignation of posts in the ICMR, AIIMS and the Ministry of Health and Family Welfare, by the following table in his representation at Annex A-12:
Organisations Designation before Redesignation/ Categorisation & Scale of Pay Designation after Redesignation/ Categorisation & scale of pay Office circulate for Redesignation/ Categorisation Indian Council of Medical Research (ICMR) Statistician Rs.2200-4000 (pre-revised) Research Officer (Statistics) Rs.2200-4000 pre-revised ICMR circular No.P-4(23)85 PERS dated 17.3.88).
(Annexure-1) AIIMS Non Medical Scientific & Technical Gr. A Posts in the scale of Rs.2200-4000 (Pre-revised) Categorised as Scientist-I Rs.2200-4000 (Pre-revised) AIIMS circular No.F-1-34/93 Estt.-I dated 17.4.95 (Annexure II).
Department of Health, Min. of Health & Family Welfare, Govt. of India Non Medical Scientific & Technical Gr. A posts in the scale of rs.2200-4000 (Pre-revised)* Categorised as Scientist-I Rs.2200-4000 (Pre-revised) Gazette of India no.519, NOV, 30, 1990 (Annexure-II) *(Revised scale : Rs.8000-13500)
6. However, in February 2006, the Applicant was given upgradation under the Assured Career Progression (ACP) Scheme in the scale of pay of Rs.10,000-15,200. The Applicant pointed out, by his representation dated 1.08.2007, that he would be entitled to a scale of Rs.12,000-16,500, had he been granted the benefit of in situ promotion (Annex A-15). In reply, the Respondent Institute rejected his representation by the impugned order dated 28.08.2007, which is quoted below:
No.Adm./2007/3522 Dated: --25/28th August, 2007 To Sh.P.P. Sharma Statistician LRS Institute of TB & RD Sri Aurobindo Marg, New Delhi-110030 Subject: Request for Promotion.
Sir, This is with reference to your letter dated 01.08.2007 on the subject cited above.
The Ministry vide its letter dated 2.2.2006 had informed that the Institutes proposal regarding In-Situ promotion to the employees working on the isolated posts was considered in consultation with department of Personnel & Training. They had clarified that the in-situ promotion scheme for Non-Medical Scientists in the Ministry of Health & Family welfare is applicable only to the posts covered under the scheme. The scope of the scheme can not be extended to include posts in other Institute to the scheme be viewed as a basis for extension of similar benefit to other personnel.
The DOP&T has further observed that all these posts are isolated posts having no promotional avenues and are covered by the Assured Career Progression Scheme which is applicable to Group-B, C and D posts as well as the holders of the isolated Group-A post. Therefore, incumbents of these posts will be covered by the general provisions of the ACP Scheme.
Therefore, you were given the benefit of ACP Scheme w.e.f. 1.2.2006 on completion of 12 years of service.
Yours faithfully Administrative Officer For Director
7. In another representation dated 18.09.2007, the Applicant further represented the post of Statistician has wrongly been considered as an isolated post. He also pointed out that incumbents of other post in the Institute such as Research Officers, Senior Research Officers, Epidemiologist, AMS etc. were given the benefit of promotion by matching their qualifications with other similar posts for whom the rules of promotion were available in other organizations under the Government. He pleaded that similar treatment should have been given to the Applicant also. He also pointed out that the Respondent Institute did not figure in the list of the institutions notified in 1990 by the first Respondent because the Respondent Institute was taken over by the Government in 1991 (Annex A-16).
8. The ICMR further revised the nomenclatures of various posts by communication dated 1.01.2008 (A-17, colly.), which is reproduced below:
Sl.
No Existing nomenclature Revised nomenclature Scale of pay
1. Research Officer Scientist `B Rs.8000-275-13500
2. Senior Research Officer Scientist `C Rs.10000-325-15200
3. Assistant Director/ Assistant Director General Scientist `D Rs.12000-375-16500
4. Dy. Director/ Dy. Director General Scientist `E Rs.14300-400-18300
5. Dy. Director/ Dy. Director General (Sr. Grade) Scientist `F Rs.16400-450-20000
6. Director/Sr. Dy. Director General Scientist `G Rs.18400-500-22400
7. Additional Director General Additional Director General Rs.22400-525-24500 The contest shown by the respondents at that stage in denying the relief to the applicant has been dealt in paragraph 14 of the order which reads as follows:
14. The learned counsel for the Respondents, on the other hand, has confined himself to pointing out the contents of paragraph 4.8 of the counter affidavit, which according to him is the sum and substance of the Respondents argument. The aforesaid paragraph is quoted below:
4.8 That the contents of this para need no reply, being matter of record. However, it is submitted that the matter regarding grant of in-situ promotion to the employees working against an isolated post was referred to the Ministry of Health & FW and the decision of the Ministry is as under:-
In-situ promotion scheme for Non-Medical Scientists in the Ministry of Health & F. Welfare is applicable only to the posts covered under the Scheme. The scope of the Scheme can be extended to include posts in other Institute to the scheme be viewed as a basis for extension of similar benefits to other personnel. The DOP&T has further observed that all these posts are isolated posts having no promotional avenues and are covered by the Assured Career Progression Scheme, which is applicable to Group B, C and D posts as well as holders of the isolated group A posts. Therefore, incumbents of these posts will be covered by the general provisions of the ACP Scheme. (Emphasis supplied) The operative part of the order disposing of the OA with directions as contained in paragraphs 16 and 17 of the Tribunal order dated 16.12.2009 reads as follows:
16. The Institute is an autonomous institution under the first Respondent. There is sufficient force in the argument of the learned counsel for the Applicant that it would have been included in the Annex-II of the Rules of 1990 along with 21 institutions, which were included in the list, but for the fact that the Institute was taken over by the first Respondent one year after the notification of the Rules of 1990. It has also not been denied by the Respondents that three isolated posts in the Institute were given the benefit of the scheme of in situ promotion. In another autonomous institution, namely, ICMR, the post of Statistician has indeed been given the benefit of in situ promotion by being redesignated as Scientist/ Research Officer, in tune with the qualifications prescribed under the Rules of 1990. Many other instances have also been cited by the Applicant, in which most of the examples are from the institutions under the first Respondent. There would thus be little or no force in the argument of the Respondent that DoP&T does not permit extension of the scheme of in situ promotion beyond what is given in the Rules of 1990. Having permitted extension of the same to similarly situated employees, refusing it to the Applicant would amount to hostile discrimination.
17. In the result, the OA is partly allowed. The first Respondent is directed to consider the repeated pleas of the Applicant for inclusion under the scheme of in situ promotion and not to treat his post as an isolated post after considering all aspects of the case and keeping our observations in mind. Should the Applicants plea not find favour with the Respondent - Ministry of Health and Family Welfare, a detailed, reasoned and speaking order would be passed, taking into account all the arguments of the Applicant. The Applicant would be at liberty to challenge any order passed by the Respondent through a fresh OA. The above exercise should be completed within eight weeks of the receipt of a certified copy of this order. No costs.
2. Pursuant to directions aforesaid, the respondents have passed order dated 26.2.2010 (Annexure A-1) which has now been called in question by the applicant in his second attempt for the same relief, i.e., in situ promotion. In the impugned order the respondents considered the applicants claim of parity with the Statisticians working in AIIMS and other Institutes relating to the applicability of in situ promotion benefits of the Rules dated 28.11.1990 and claimed specific treatment as the Statistician in the ICMR having been granted in situ promotion was re-designated as Research Officer (Statistics). Third respondent consulted the 1st respondent and rejected his claim on many grounds which can be grouped in the following way. (i) The applicant had been granted 1st financial upgradation under ACP Scheme as he had been occupying an isolated post. (ii) The Notification dated 30.11.1990 applied the in situ Promotion Scheme to 21 Institutions under the control of the 1st respondent, but the LRS Institute having been taken over (in the year 1991) after the said Notification, obviously, the LRS Institute did not figure in the list of Institutions appended to the Notification and as such the benefits accruing to the employees in those Institutes are not always available to the employees in LRS Institute. (iii) The post of Statistician in LRS Institute cannot be treated as Scientific and Technical post to come within the ambit of Notification dated 30.11.1990 as MA/ MSc (Maths), MA/MSc (Statistics) are not treated as educational qualification under natural Science. (iv) The essential qualifications required for the Research Officer (Statistics) redesignated Scientist B in those Institutes as Ph. D Statistics) whereas Statisticians qualification in the LRS Institute is MA/MSc (Statistics) and (v) The post of Statistician in LRS Institute is not comparable with the post of Statistician in ICMR/AIIMS..
3. It is noticed that on the point of hostile discrimination the Tribunal in its order dated 16.12.2009, observed in following terms:-
.Having permitted extension of the same to similarly situated employees, refusing it to the applicant would amount to hostile discrimination. Ultimately, the respondents disposed of the applicants representation highlighting the invidious discrimination rejecting his claim vide its order dated 26.02.2010 in the following manner:-
NOW THEREFORE, it is found that the post of Statistician in LRS Institute is not comparable with the post of Research Officer in ICMR since the essential qualifications are not alike, as aforesaid, and the post of Statistician cannot be treated as a scientific/technical post as the qualifications of MA/M.Sc (Statistics) even in the Group A post are not equivalent to the qualifications of M.Sc. in Natural Science/Agro Science. The post of the Statistician in LRS Institute is a Group A post but can be treated as an isolated post only to which the provisions of ACP Scheme shall apply and the provisions of in situ promotion rules dated 28.11.1999 cannot be extended to the post of Statistician in LRS Institute in light of the discussions made above. Accordingly, the representation made by Shri Prem Prakash Sharma is disposed of.
4. Challenging the decision of the 3rd respondent, Shri Devesh Singh, learned counsel for the applicant would contend that post of Statisticians in other Institutes had been treated as Scientific and Technical post and redesignated as Research officer or Scientist-I or Scientist B and on the same analogy the Statistician post in the 3rd respondents Institute should be redesignated. Referring to the Department of Health (Group a Gazetted Non-Medical Scientific Technical Posts) in situ Promotion Rule, 1990, which prescribes Masters Degree in Science (not in natural Science), as essential education qualification, he submits that the criteria for Scientist-B in ICMR is the First Class Masters Degree in Statistics i.e. M.Sc (Statistics). Further, Shri Singh would contend that Bye Laws of the LRS Institute provided that the rules of the Government of India would be applicable for the incidence of service. Shri Singh placing his reliance on the dicta of the Honble Supreme Court in Dr. Ms. O. Z. Hussain versus Union of India [1990 (Suppl) SCC 688] would submit that where the contract between the employer and employee was silent on the issue of promotion and where the extant statutory rules would not cast duty on the employer to provide for appropriate promotional opportunities on the lives at par with similarly situated persons in similar organization/Institutes, the employee would be in a position to enforce his right. He contends that third respondent has adopted Central Health Scheme orders for various posts which are single or isolated posts and similarly situated employees get the benefits of in situ promotion but the applicant has not been granted the same which should be termed as hostile discrimination. The discriminatory approach of the respondents is violative of Article 14 and 16 of the Constitution of India. Treating the applicants post as isolated one and granting ACP Scheme but not the in situ promotion has caused grave prejudice to the applicant. In view of these contentions, he pleads that the OA should be allowed with appropriate directions to the respondents.
5. On receipt of the Notice from the Tribunal, the 3rd respondent entered appearance through M/s Sikri and Company and filed the reply affidavit on 31.01.2011. Other two respondents, despite receiving the notice, preferred to remain silent by not submitting counter reply and not even represented by the counsel. It must be stated here that the issues which would need the attention and consideration of the 1st respondent, would be determined in this order despite the fact. Granting as many as 6 opportunities to them, we did not have the benefit of the views of 1st and 2nd respondents. Nor they were represented by the Counsel. We finally heard the case on 5.08.2011.
6. Opposing the contentions raised by Shri Devesh Singh, Ms. Nidhi Bisaria, learned counsel for the 3rd respondent, would submit that the Tribunals order dated 16.12.2009 was fully complied with by the 3rd respondent in its order dated 26.02.2010 wherein all the grounds taken by the applicant in his representation dated 11.01.2010 were dealt and disposed of, concluding that the applicant was only entitled to ACP Scheme financial upgradation as the post was an isolated post, and not for the in situ promotion. She reiterated the grounds taken by the 3rd respondent in the impugned order and argued to dismiss the OA.
7. We find that the applicants post i.e. Statistician is no doubt a non-medical post. It is also not in dispute that the post is not in a hierarchy for promotion and is an isolated post. The issue for our determination is whether the applicants post can be termed as non-medical Scientific and Technical post and whether the applicant is entitled to in situ promotion as his counter parts in other similar Institutes are getting?
8. The main controversy in the present OA was already addressed by us and have directed the respondents while allowing the OA partly to consider the plea of the applicant for inclusion under the Scheme of in situ promotion and the said post should not be treated for the ACP Scheme financial upgradation as an isolated post. The respondents did consider some of the pleas but have not carefully checked up that the Statistician post in ICMR and few other Institutions have already been designated as Research Officer/Scientist-B. The claim of the applicant though repelled by the respondents, the reasons brought for such rejection are more or less on the same grounds when the applicant came to this Tribunal for the first time. It would be appropriate for us to state here that the respondents should have considered two consequential steps, namely, to declare the LRS Institute as one of the Institutes to come under the Notification dated 30.11.1990 issued by the Respondents. Once the LRS Institute gets notified automatically the applicant would be entitled for the in situ promotion as is applicable to the similarly placed person in the 21 Institutes which come under the purview of the Notification dated 30.11.1990. The process of three steps should have been applied in the present case. First step is to extend the benefits of Rules of 1990 which envisages grant of in situ promotion to the non-medical Scientific and Technical employees to the employees of LRS Institute. Second step is to change the designation of the post of the Statistician in LRS Institute to a designation like Research Officer/Scientist. Next step would be to issue appropriate orders extending the benefits of in situ promotion to the applicant. There is an alternative process too. In case the LRS Institute to be brought under the Notification dated 30.11.1990 will take some time, it is the duty of the respondents to designate the post of the Statistician in LRS Institute to a Scientific/Technical post and for such Notification good reasons are already available in our order dated 16.12.2009.
9. One of the main arguments against the applicants claim is the qualification to be the basis for not granting scientific/technical status to him. We have perused the qualification prescribed for Scientist-B post in ICMR as is available at Page 109 of the paper book which indicates the required qualification in scientific or engineering or technical subject and subjects like first class Masters Degree in Statistics from a recognized University as also one of the qualifications or second class Masters Degree in Statistics with Ph.D from a recognized university. Admittedly, in the LRS Institute the post of Statistician also has qualification of Post Graduation Degree in Statistics. We find the same educational qualification being prescribed for the post of Statistician in AIIMS, ICMR and other similar Institutes and all of them discharging similar statistical functions the applicant could not be invidiously discriminated.
10. The next ground on which the applicants claim has logic and rationality relates to the fact that the LRS Institute of Tuberculosis and Respiratory Diseases is an autonomous Central Institute coming under the control of Government of India. Bye Law No.42 prescribes that the conditions of service of its employees are governed by the rules applicable to the Central Government servants from time to time and the same would be applicable mutatis mutandis to the employees of the Institutes. It further stipulates in Bye Law No.31 that FRSR as are applicable in the employees of Government of India are also applicable for the employees of the LRS Institute. That being so, on Rules front, the applicant being Statistician in LRS Institute cannot be in a different footing from the Statisticians getting benefits in other similar Institutes.
11. While passing the order of rejection, the respondents took the ground that Statistics is not a natural science. The applicant does not claim the Statistics as a natural Science. Our understanding is that Statistics is Scientific and technical subject.
12. One more angle needs to be considered which supports the case of the applicant i.e. uniformity needs to be the hall mark of the respondents in dealing with the employees of such Specialist, Scientific and Technical Institutes. The post of Statistician in one set of Institutes has been recognized as Scientific in some other as Research Officer and in the case of LRS Institute the Statisticians post continues as such and the said post is being continued terming it as a non-technical and non-scientific post. In our opinion, the Statistician post is certainly a Scientific/Technical post and the same should be treated as such in the LRS Institute.
13. Looking the case from a different angle, it must be noted that the post of the Statistician in the Institutes like LRS Institute, ICMR, AIIMS etc. is a non medical post and numbers are very small. These are and will continue to be isolated post as their Scientific/technical function is narrow confined to medical data collection, collation, compilation and analysis. The in situ promotion applicable to 21 Institutes for the employees coming under the non medical Scientific and Technical cadres, is neutral to the posts, be the same as isolated or hierarchical. Whether the post is isolated or there is a hierarchy of promotion, in situ promotion is granted only to the person occupying to the post irrespective of the fact whether vacancies exists or do not exist. Further, when the in situ promotion is granted, the post get automatically upgraded in the appropriate higher scale. Hence, we wonder why the respondents deny the applicant in situ promotion calling the post isolated. As the ACP is applicable to the incumbents in hierarchical and isolated posts, so also the in situ promotion is applicable to the employees in hierarchical and isolated posts.
14. It is noted that the in situ promotion Scheme is better than the Accelerated Career Progression Scheme (ACP) for financial upgradation. In ACP, two stage financial upgradation is granted. Of course, the 6th CPC has notified the modified ACP Scheme and brought in three financial upgradation for such post where there is stagnation at the interval of 10 years, 20 years and 30 years. But the in situ Promotion Scheme envisages shorter period than the 10 years which would be positively advantageous to the applicant. It is needless to mention that rigors of test to be successful in situ promotion would also be applicable to the applicant when the same scheme is notified to be applicable for the applicant.
15. Considering the totality of facts and circumstances of the case, and in view of our above discussions and reasons, we are of the considered opinion that the applicant is entitled to be considered under the in situ promotion scheme. Accordingly, we direct the respondents to grant the same to the applicant by extending the in situ promotion scheme to the post of Statistician either by notifying the LRS Institute as part of the Notification dated 30.11.1990 or by an independent executive order for which the in situ promotion could be accorded within a period of three months from the date of receipt of certified copy of this order. Resultantly, the OA is allowed in terms of our above directions, leaving the parties to bear their respective costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /pj/