Central Administrative Tribunal - Ernakulam
Muhammed K T vs Indian Council Of Agricultural ... on 20 October, 2022
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00311/2016
Thursday, this the 20th day of October 2022
CO RAM:
HON'BLE Mr.JUSTICE K.HARIPAL, JUDICIAL MEMBER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER
Muhammed.K.T.,
Aged 60,
S/o.Beeran,
Technical Officer, T-5,
Indian Institute of Spices Research (ICAR),
Marikkunnu P.O., Kozhikode.
Residing at Kollan Thoduvayil House,
Punnur Cherutpalam P.O.,
Marikkunni (via), Kozhikode. ...Applicant
(By Advocate Mr.P.V.Mohanan)
versus
1. Indian Council Agriculture Research,
represented by Secretary,
Indian Council of Agriculture Research,
Krishi Bhawan, New Delhi - 110 001.
2. The Director,
Indian Institute of Spices Research,
(Indian Institute of Spices Research),
Marikkunnu P.O., Kozhikode. ...Respondents
(By Advocate Mr.P.Santhoshkumar)
This application having been heard on 22 nd September 2022, the Tribunal on
20th October 2022 delivered the following :
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ORDER
Per: Hon'ble Mr. K. V. Eapen, Administrative Member The applicant in the O.A is a Technical Officer who was working in the Indian Institute of Spices Research (IISR), an institution under the Indian Council of Agricultural Research (ICAR). He had been holding the post of Technical Officer Grade T-5 in Category II in the ICAR Technical Services with effect from 01.01.2005. He had completed 5 years service in the Grade T-5 on 01.01.2010 and submits that he had the qualifications for promotion to Grade T-6 which falls in Category III. He submits that, at the time of filing the O.A, he had already completed more than 10 years of service in Grade T-5. He submits that he was eligible for promotion to Grade T-6 in Category III under the Modified ICAR Technical Services Rules (TSR) at least with effect from 01.01.2016. He further submits that there were two substantive vacancies in Grade T-6, which arose in November and December 2015 respectively, consequent on the retirement of two incumbents, namely, Shri V. K. Aboobacker Koya and Smt. Utpala Parthasarathy, and, therefore, he should have been promoted to Grade T-6 in Category-III at least with effect from 01.01.2016 with all consequential benefits. Further, as per the Pre-Modified Technical Service Rules governing his service, 33 1/3% of vacancies in the Grade T-6 in Category- III are to be filled up by promotion from Grade T-5 possessing qualifications prescribed for Category-III. The applicant also submits that he had opted for the Pre-Modified Technical Service Rules and had obtained required qualifications and experience, as stipulated in Appendix IV of the pre-modified Technical Service Rules. Thus, he prays for the following -3- relief:-
"(i) To declare that the applicant is qualified and eligible to be promoted to Grade T-6 in Category-III of Technical Service Rules based on the qualification stipulated in the Pre-Modified Technical Service Rules on due date, i.e., on completion of five (5) years service in Grade T-5 in Category II with all consequential benefits.
(ii) To direct the respondents to consider the claim of promotion of the applicant to the Grade T-6 in Category-III in the existing vacancies w.e.f. 1.1.2016 on completion of 10 years service in Grade T-5 in Category-II as envisaged in Annexure A9 Modified Technical Service Rules with all consequential benefits."
2. From the details in reply statement provided by the respondents as well as the information in the O.A, it appears that the IISR is an institute under the ICAR devoted to research on development of spice crops in the country. The scientists in the ICAR Institutes are supported by technical personnel in their research work. The recruitment and other personal policies of these technical personnel in the ICAR were governed by the Pre- Modified Technical Service Rules (TSR) which had come into force with effect from 01.10.1975. These Rules (TSR) were later modified and the modified Rules were implemented by the ICAR with effect from 03.02.2000. It appears that existing technical personnel were given an opportunity to opt either for the pre-revised Technical Service Rules (TSR), i.e., the Technical Service Rules in force upto 02.02.2000 or for the modified Technical Service Rules (TSR) implemented with effect from 3.2.2000. This option was to be exercised within a period of 30 days from the date of publication of the modified Technical Service Rules (TSR), i.e., on 03.02.2000. A copy of the Notification of the modified Technical Service Rules (TSR) has been provided by the respondent at Annexure R2(a).It is noted that paragraph 3 of these modified Rules mentions that, any existing -4- technical employee who would like to be governed only as per existing Technical Service Rules may do so specifically exercising an individual option in writing to the Director of the Institute within 30 days from the date of issue of the notification (03.02.2000). It has also been indicated as follows:- "Option once exercised shall be irrevocable and final". Further, it is mentioned therein that with the introduction of these modifications in the existing Technical Service Rules (TSR), the 33 1/3% promotion quota which existed would be only operative in Category-I at the level of Grade T-1.
3. It appears that the applicant in this O.A opted to be governed by the Pre-Modified Technical Service Rules (TSR) vide the option exercised by him on 25.01.2002 which is produced by the respondents at Annexure R2(c).
4. The technical posts in the ICAR were distributed in the pre-revised Rules of 1975 among three categories, namely Category I, Category II and Category III. For the purpose of recruitment each category was further classified into grades for providing promotional avenues to the technical personnel. Thus, Category-I contained Grades T1, and T2 and T-1-3. Similarly Category II contained Grades T-2-3, T4 and T5 and Category III contained Grades T6, T7, T8 and T9. Later by the modified Technical Service Rules (TSR) issued on 03.02.2000, the Grades of T-1-3 and T-2-3 were merged together and brought under Category II. Similarly Grades T7 and T8 were merged into a single grade of T7-8. It also appears that the -5- technical grades were under 9 functional groups in the pre-revised TSR. Normally, the direct recruitment of technical personnel was to be made only in the beginning grade of each category, which was considered as the entry level and direct recruitment across the category was only be made to correct the imbalance in staff composition in grades.
5. In the pre-revised TSR there was also a provision for career advancement within a Category through a 5-yearly assessment of performance by a Departmental Promotion Committee/Assessment Committee. The Technical personnel were given this so called 'merit' promotion on this basis after 5 years service in the concerned Grade to the next higher Grade. Alternatively they were granted advance increments on merit. It is to be noted that this promotion right from the entry grade in the category to the other higher grades within the category, was on a purely personal basis on merit and was not based on availability of posts. Also, such personal promotions were restricted initially within the concerned Category itself due to an existence of a 'category bar' between the different Categories. As brought out by the respondents, persons holding the highest grade of T-1-3 in Category I or grade T5 in Category T-II or grade T9 in Category -III were not eligible for further promotions, though they could be granted up to three advance increments if recommended by Departmental Promotion Committee/Assessment Committee/ Selection Committee. However, in spite of the category bar, the pre-revised TSR had a provision for promotion of in-service personnel to higher categories by reserving 33 1/3% of vacancies arising in the entry level of each category for promotion -6- of eligible persons. Thus, an employee in grade T5 in Category-II could be promoted to grade T6 of Category-III against this 33 1/3% vacancies reserved for in-service categories provided they possessed the qualifications prescribed for Category-III. However, as most of the promotions of the candidates to higher grades within a Category and also between categories were based purely on a personal basis, once the incumbent vacated the post due to superannuation, the post he or she occupied, reverted back to his original entry level grade. This meant, therefore, the vacancy could be filled only at the entry level grade.
6. This rather complex system, which was in prevalence in all the ICAR institutes for quite some time meant that many of the Technical Service personnel were, basically, only able to progress within their respective categories, on the basis of the upgradation given to them every 5 years, but then generally get stuck in the highest grade within the Category after some time. The ICAR then decided to relax the category bar across categories. For those in the highest grade of T-5 in Category II, this was done by on instruction dated 4.8.1995, a copy of which has been produced at Annexure R2(b) by the respondents and at Annexure A7 by the applicant in the O.A. As per this letter, the ICAR directed that, in order to improve the service condition of technical personnel in grade T5, technical personnel who had put in not less than 12 years of service in Grade T5 were allowed to be considered for appointment to Grade T6 in Category III, subject to their possessing minimum qualifications for Category III, as prescribed in Appendix IV of Technical Service Rules and also on the basis of clearance -7- by the Agricultural Services Recruitment Board (ASRB). It was also further indicated in the said letter of 04.08.1995 as follows:- " For this purpose, the approved persons are to be adjusted against existing vacancies in the respective fields. Where, however, no such vacancies exists the existing posts in grade T-5 held by the approved incumbents are to be upgraded to grade T-6 on personal basis till such time as regular vacancies in the latter grade become available. On the absorption of the persons against regular vacancies in grade T-6 upgraded posts will stand downgraded to the original grade T-5 and reverted to the cadre strength of Category-II."
7. Now we come to the specific case of the applicant in this O.A. The applicant had joined initially in Grade T1 in the Category-I of Technical Services in the functional group of Field Farm Technician Group-I. He was promoted to next higher grades as per the time prescribed in the Technical Service Rules and was placed in Grade T5 on 01.01.2005. On completion of 5 years' service in that grade he was assessed by an Assessment Committee on 19.01.2011 and, based on the recommendation of the Committee, he was granted two advance increments in that grade as per the pre-revised TSR with retrospective effect from 01.01.2010, i.e., on the date of completion of 5 years' service in grade T5. This order giving him two advance increments in grade T5 is produced by the respondents at Annexure R2(d). He then superannuated from service on 31.05.2016 in the technical Grade T5. The applicant submits that on the completion of 5 years of service in Grade T5 on 01.01.2010 and, also further, having the qualifications for promotion to Grade T6 in Category-III and having completed more than 10 years service -8- in Grade T5 on 1.1.2015, he was eligible for promotion to grade T6 in Category-II at least with effect from 01.01.2016 on the basis of the 33 1/3% promotion quota and availability of vacancy. At the same time, he also submits that he could have been granted promotion to grade T6 in Category- III with effect from 01.01.2010 itself, i.e., on completion of 5 years because as per the pre-revised Technical Service Rules, there was a system of assessment and promotion on merit basis every 5 years from one grade to another. Whatever be the case, he submits that he has been only given the advance increments with effect from 01.01.2010 and not the promotion to grade T6. Even if the respondents were not giving him the promotion with effect from 01.01.2010, because he had not completed the required period of 12 years with effect from 2005 as envisaged in Annexure A7, he could have still been considered under the 33 1/3% promotion quota. The pre-revised Rules had allowed 33 1/3% of vacancies in grades in Category-III of Grade T6 in Category-III to be filled by promotion from Grade T5 in Category-II. Further, he submits that he had all the qualifications stipulated for promotion to Grade T6 and, even though, he had qualified by a 2-year diploma programme in the relevant field, it had been clarified in the pre- revised Rules that in fields where minimum qualification was by a 2-years' Diploma instead of 3-years' Diploma which was otherwise prescribed as the essential qualification for Category-III posts, the same could be accepted. He submits that there were two substantive vacancies of grade T6 which arose in November and December 2015 respectively consequent upon the retirement of two incumbents namely one Shri V. K. Aboobacker Koya and Smt. Utpala Parthasarathy. Hence, he could have been promoted under the -9- 33 1/3% at least with effect from 01.01.2016. He had given representations for the same to the respondents but they had not been considered nor any response given to him.
8. To the above specific points and the case of the applicant, the respondents have replied that they have not contested in their reply statement that he does not have the prescribed essential qualifications for Category-III. They have also accepted that in fields where the duration of diploma available in the country is only 2 years the minimum qualification will be 2 years diploma in spite of a 3 years diploma. However, what was relevant was that the applicant had not completed 12 years of service in grade T-5 at the time of his superannuation on 31.05.2016. This was a clear requirement for promotion to Grade T-6 as per the ICAR's letter produced at Annexure R2(b) and at Annexure A7. The applicant had been promoted to Grade T-5 on 01.01.2005 and retired from service on 31.05.2016. Hence, he had retired before the completion of 12 years which has been prescribed. In addition to this, the applicant had opted for the pre-revised Technical Service Rules and, as per Annexure A2(a), options once exercised are irrevocable and final. Hence, his service can be only counted under these Pre-Revised Rules. It is submitted that there has been no violation of his rights under Article 16 of the Constitution of India. The category bar for promotion of technical personnel from a category to a higher category had been fully removed only in the modified TSR which was not applicable to him as he had opted for the pre-revised TSR.
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9. The only way that the applicant could have been considered for promotion to grade T6 as submitted by the respondents was under two conditions:-(a) promotion could have been considered in his case against the reserved quota by 33 1/3% in vacancies in Grade T6 for direct recruitment after 01.01.2010 (as 5-years' service is also an essential qualification for consideration to Grade T6) or (b) if he had completed the 12 years' service in Grade T5 for which he would have done if he was still in service on 01.01.2017. Regarding the condition (b), the applicant superannuated before completion of 12 years on 31.05.2016 and thus this was not possible in his case. Further he was not eligible for any personal upgradation either under the Rule. As regards condition(a) the respondents submit that the issue here is that there needed to be three clear vacancies in the Grade T6 if the applicant could be considered, as only 33 1/3% of the vacancies were reserved for promotion of technical personnel in Grade T-5. It is accepted that Shri.V.K.Aboobacker Koya who was in grade T9 superannuated from service on 30.11.2015 resulting in one clear vacancy in Grade T6. Vacancies at the Grade T6 and above in ICAR institutes are to be filled by Agricultural Scientists Recruitment Board(ASRB) in New Delhi and the ASRB had not initiated any action to fill up the T6 posts vacated on the retirement of Shri V. K. Aboobacker Koya at that time. However since the scheme of 33 1/3 percent promotion could be only considered when at least 3 posts arise in Grade T6, in any case, it does not appear that that was a possible option. It is true that another vacancy arose with the retirement of Smt. Utpala Parthasarathy who was a Grade T6 Technical Officer. However, she had joined the Institute and had been adjusted against a T4 post in the -11- Institutes' technical cadre strength. Therefore, as per Annexure R2(b) on her superannuation the post was again reverted back to Grade T4. Thus, the respondents submit that due to these considerations, the applicant's case could not be considered.
10. To Counter the above points the applicant has brought to notice the decision of this Tribunal in O.A 219/2004 dated 12.01.2006 in the matter of P. T Sebastian, Technical Officer (T-5) v Director General, ICAR and ors at Annexure A8 in the O.A. In that case, it had been decided by this Tribunal that the applicant who was a Technical Officer working in the Grade T5 was entitled to be promoted to T6. The applicant herein submitted that this Tribunal had found in O.A 219/2004 that the fixation of 12 years service for existing incumbents who obtained basic educational qualification conferred in the Technical Service Rules for promotion of grade T6 and fixation of only basic education qualification with 5 years experience for direct recruitment to Grade T6 was, per se, arbitrary, discriminatory and violative of Article 14 and 16 of the Constitution of India. However, on going through the order at Annexure A8, it is seen that this was not the finding of the Tribunal in the Annexure A8 order. It was only the contentions of the applicant that had been summarised in paragraph 7 of the O.A 219 of 2004. The said paragraph 7 produced at Annexure A-8 is as below: -
" 7. The applicant obtained the qualification of 3 years diploma in Engineering in the year 1977. Based on that qualifications and experience, the applicant was appointed to grade T-II-3 in category - II. Even after removal of category barrier, there was no change in qualification except the fixation of requisite years of service. Counsel for the applicant argued that there is no reasonable nexus in fixing the qualification of 12 years service for consideration for promotion to grade T-6. When the original Recruitment Rules -12- insisted only 5 years service for promotion from lower grade to higher grade of personnel who obtained qualification envisaged in Appendix IV. The methodology for promotion to grade T-6 in Technical Service Rules under clause 7.3 by proceeding No. 7 dated 20.09.1989 read thus : 33 1/3% of vacancies in grade T-6 may also be filled by promotion of person in grade T-5 possessing qualification prescribed for category III. It is relevant to note that for direct recruitment to grade T-6, there is no insistence of 12 years service with requisite educational qualifications. The fixation of 12 years service for existing incumbents who obtained basic educational qualification conferred in Technical Service Rules for promotion to grade T-6 and fixation of only basic educational qualification with 5 years experience for direct recruitment to grade T-6 is per se arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India".
By no means can the summarizing of the position of the applicant as above be misconstrued as a 'finding' of the Tribunal. What was at issue in the O.A was whether the fact that the applicant who had not exercised any option after the introduction of the modified Service Rules could be considered to be covered under the modified Rules, as per Annexure A9 order. The Tribunal found that if the employees otherwise eligible for the benefit and due option is being thrust upon his service condition which will have adverse consequential development of benefits then that option should not be made effective in the given circumstances. It was found that the benefit, which otherwise the applicant would have got was being denied under the guise of this deemed option for which he had not given anything in writing and, thus, this cannot be a reason for denying the benefits of promotion. The issue in the O.A 219/2004 at Annexure A-8 was not relating to the non- completion of 12 years service in Grade T5 which the applicant therein already had completed as he was promoted with effect from 01.01.1991 to Grade T-5 and given three advance increments with effect from 01.01.1996. Thus he had completed more than 12 years while being still in service by -13- the time the orders were passed. The main issue, as pointed out by the respondents in this O.A, was in relation to whether his qualification of three years diploma could be considered equal to the essential qualification prescribed for Grade T6 in Category-III as per the Rules. In any case the ICAR had clarified that 3 year diploma should hold good for promotion to the Category-III vide their letter dated 07.03.2003 produced at Annexure R2(e). Hence, it is submitted that the finding in O.A 219/2004 is nowhere in any way related to the case of the applicant.
11. We have gone through these contentions and find that a definite distinction can be drawn in this O.A from the O.A 219/2004. There is also the matter that a specific option was exercised by the applicant for being governed by the old Technical Service Rules as produced at Annexure R2(c). If that is the case, he then automatically gets, covered by the Circular produced at Annexure R2(b)/ Annexure A-7 under which only those who have not less than 12 years of service in Grade T-5 can be considered for promotion in Grade T6. Since he retired on 31.05.2016 he had not completed the prescribed 12 years period by that time from the date of his promotion to Grade T5 on 01.01.2005. Regarding the issue relating to his promotion under the 33 1/3% quota, we accept the clarifications by the respondents that there could be only one vacancy caused by the retirement of Shri V. K. Aboobacker Koya which resulted in a vacancy in the Grade T6. The retirement of Smt. Utpala Parthasarathy only caused a vacancy in Grade at the T4 level.In any case, as pointed out by the respondents, his claim could have been considered under this quota only -14- when at least 3 posts were available in Grade T6. There were no such sufficient vacancies till the time he retired under which he could have been considered under the 33 1/3% quota for direct recruitment.
12. Due to facts as pointed out above, there does not appear that there has been any discrimination or delay in the case of the applicant. He appears to have received promotions and advance increments as per his due during the course of his service. Hence we do not find an infraction of the Pre- Modified Technical Service Rules, including of Rule 7.3 relating to the 33 1/3% promotion to Grade T-6. We, therefore, do not accept the contentions in the O.A. The Original Application is accordingly dismissed. No order as to costs.
K.V.EAPEN JUSTICE K.HARIPAL
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
bp
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List of Annexures
1. Annexure A-1 - A copy of the Certificate in Agricultural Science.
2. Annexure A-2 - A copy of the Order of promotion to Grade T-I-3 with effect from 01.01.1990.
3. Annexure A-3 - A copy of the Order of promotion to Grade T-5 in category II with effect from 01.01.2005.
4. Annexure A-4 - A copy of the proceeding F.No.9(67)/2000/Estt., dated 20.01.2011.
5. Annexure A-5 - A copy of the representation dated 02.03.2016.
6. Annexure A-6 - A copy of the Pre-Modified Technical Service Rule.
7. Annexure A-7 - A copy of the proceeding No.14-3/94-Estt.IV(Vol.II) dated 04.08.1995.
8. Annexure A-8 - A copy of the order in O.A.No.219/2004 dated 12.01.2006.
9. Annexure A-9 - A copy of the Modified Technical Service Rule.
10. Annexure A-10 - A copy of the Order F.No.4-29/2002-IA-VI dated 07.03.2003.
11. Annexure R2(a) - A copy of the Notification No.18-1/97.Estt.IV dated 03.02.2000.
12. Annexure R2(b) - A copy of the Council's Letter with No.14-3/94- Estt.IV (Vol.II) dated 04.08.1995.
13. Annexure R2(c) - A copy of the communication opting the pre- revised TSR by the applicant.
14. Annexure R2(d) - A copy of the Office Order granting two advance increments in Grade T-5 to the applicant.
15. Annexure R2(e) - A copy of the Council Letter No.F.No.4-29/2002- IA-VI dated 07.03.2003.
16. Annexure R2(f) - A copy of the Transfer Order of Dr.Ulpala.
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