Central Administrative Tribunal - Ernakulam
K.I. Akber vs Union Of India Represented By on 5 January, 2017
Author: P.Gopinath
Bench: P.Gopinath
Central Administrative Tribunal
Ernakulam Bench
OA/181/00270/16
Thursday, 5th day of January, 2017
CORAM
Hon'ble Mr.Justice N.K.Balakrishnan, Judicial Member
Hon'ble Mrs.P.Gopinath, Administrative Member
K.I. Akber, aged 51 years,
S/o K..K Koya,
Subject Matter Specialist (PP),
Holding the full additional charge of Programme Co-ordinator,
Krishi Vigyan Kendra, Kiltan Island
Permanently residing at 'Alaska Nivas',
Kavaratti Island, UT of Lakshadweep. Applicant
(By Advocate:Mr.M.R.Hariraj)
Versus
1. Union of India represented by
Administrator, UT of Lakshadweep,
Kavaratti.
2. The director (Agriculture),
UT of Lakshadweep, Kavaratti.
3. Indian Council of Agricultural Research
represented by the Director General
Indian Council of Agriculture Research,
Krishi Bhavan, New Delhi-110 001.
4. The Director
ICAR, Agricultural Technology
Application Research Institute
MRS H.A. Farm Post Hebbal,
Bengaluru-560 024. Respondents
(By Advocate: (Mr.S.Manu for R1&2)
(Mr.P.Santhosh Kumar for R3&4)
The Original Application having been heard on 15 th December, 2016,
this Tribunal delivered the following order on 5 th January, 2017:
ORDER
By P. Gopinath, Administrative Member The applicant in the OA contends that he is working as Subject Matter Specialist (SMS) of Krishi Vigyan Kendra (KVK for short), a project for Agricultural Research & Education, under the joint auspices of UT of Lakshadweep and ICAR. He was appointed as such, after a properly constituted selection by a Board in the year, 2009 while working as a Technical Assistant under the Department of Agriculture of the UT of Lakshadweep. The 2nd respondent was immediate controlling officer of the applicant. Krishi Vigyan Kendra, is a Project for Agricultural Research & Education, working under the joint auspices of UT of Lakshadweep Administration and ICAR. When it was rumored that KVK, Lakshadweep was being shifted to Andaman and Nicobar Islands, the applicant, fearing that he would be shifted to Andamans, submitted a request on 12.3.2015 for repatriation to his parent Department, i.e., Agriculture Department, in an equivalent post. However, it was later understood that only the administrative control was being withdrawn from the Lakshadweep Administration and that the Centre would be shifted from Kiltan Island to Kavaratti Island. He withdrew the request made on 12.3.2015 (Annexure A3) and requested for retention in KVK itself. While so, Annexure A1 order was issued based on Annexure A3 request, without considering his subsequent request made on 29.10.2015 for retention in KVK itself (Annexure A5). According to the applicant, Annexure A-1 order repatriating him to a lower post with lower pay is illegal and arbitrary and is liable to be quashed.
2. Respondent contests the claim stating that Annexure A1 order dated 04.03.2016 was issued in tune with his request dated 12.03.2015 to repatriate him to his parent department. The Administrator accepted his request and he was appointed as Agriculture Demonstrator in the Agricultural Demonstration unit of Androth, with the proviso that his present pay benefits will be regulated as per the Rule.
3. The applicant, prior to his appointment in KVK, was working as Agricultural Demonstrator/Technical Assistant in the Agricultural Department under UT Administration in the scale of pay of Rs. 4500-7000/- (pre revised) 5200-20200+2800 GP (revised) since 02.12.1991. While working in the grade, he was posted against the post of Training Associate (Subject Matter Specialist) in the Krishi Vigyan Kendra (KVK), Kiltan in the scale of pay of Rs. 15600-39100+ GP 5400 vide order dated 8.9.2009. On 12.03.2015, the applicant submitted Annexure A3 representation requesting the Administrator to place him back to his parent Department, i.e. Agriculture Department. Accordingly, the Agriculture Department, with the approval of the Administrator, posted him in the Agriculture Department as Agricultural Demonstrator by Annexure A1 order dated 04.03.2016. Subsequently, he submitted Annexure A5 representation stating that he is not interested to return to his parent department in the lower grade and he may be placed in the post of Coconut Development Officer in Agriculture Department. He was not promoted as Agricultural Officer/Plant Protection Officer, the intermediary post before the post of Coconut Development Officer, in the Agriculture Department. Therefore, his request for an out of turn promotion to the post of Coconut Development Officer (CDO for short), otherwise than in accordance with normal hierarchy, could not be considered as it would harm the interest of his seniors. The post of Agricultural Demonstrator, the post he is substantively holding, is not a feeder post of CDO. Feeder post to CDO is the post of Plant Protection Officer with 3 years regular service in the grade. Even though the applicant was working as Training Associate (Later re- designated as Subject Matter Specialist) in the KVK in the scale of pay Rs. 15600-39100 + GP 5400/- equivalent to pay scale of CDO, it cannot be said that he is holding an analogous post. Applicant is working as Subject Matter Specialist in KVK, Kiltan but his substantive post is Agriculture Demonstrator in the Department of Agriculture UTLA. It is the right of the UTL Administration through Secretary (Agri) to post any person in KVK or consider the request to post him back to his substantive post held in Agricultural Department as per order F.No.37 / 4/ 98-Agri (KVK) dated 17.7.1998. The applicant cannot aspire to get the post of Coconut Development Officer either under promotion category or under deputation, the respondents contend against the provison of the recruitment rules.
4. Respondent submits that the applicant is not holding a post b�analogous to that of Coconut Development Officer in the UT Administration. The question is, just because the applicant is having the same pay scale, whether it could be said that he was holding an 'analogous post'. Analogous post has not been defined in any Service Rules. However, there is a reference to this issue in the Government of India, DoP&T OM No.AB 14017/71/89-Estt. Dated 3.10.89 which prescribed certain procedure to be followed in cases where the appointment is to be made by 'transfer' or 'transfer on deputation' basis. It reads as under:
'Whenever the recruitment rules for a post prescribe transfer on deputation/ transfer as a method of filling Up the post, they generally contain an entry in column 12 of the standard form of schedule stating inter-alia that the b�transfer on deputation / transferb� shall be made from amongst the officers holding analogous posts on regular basis under the Central/State Governments. This Department has been receiving references from various Ministries/Departments asking for the definition of analogous posts'. It has, therefore been considered appropriate to lay down the following criteria for determining whether a post could be treated as analogous to a post under the Central Government:
(i) Though the scale of pay of the two posts which are being compared may not be identical, they should be such as to be an extension or a segment of each other, eg., for a post carrying the pay scale of Rs.3000-
5000, persons holding posts in the pay scale of Rs.3000-5000 will be eligible.
(ii) Both the posts should be falling in the same group of posts as defined in the Department of Personnel and Administrative Reforms Notification No.13012/2/87-Estt.(D) dated 30th June, 1987 viz., Group-A, Group-B etc.
(iii) The levels of responsibility and the duties of the two posts should also be comparable.
(iv) Where specific qualifications for transfer on deputation/transfer have not been prescribed, the qualifications and experience of the officers to be selected should be comparable to those prescribed for direct recruits to the post where direct recruitment has also been prescribed as one of the methods of appointment in the recruitment rulesb�.
(v) Where promotion is the method of filling up such posts, only those persons from other departments may be brought on transfer on deputation whose qualifications and experience are comparable to those prescribed for direct recruitment for the feeder grade/post from which the promotion has been made'(emphasis added).
5. It is contended that the Hon'ble Apex Court in (1999) 800 (L858) 669, V.N. Meenakshi v. Union of India, clarified that, to ascertain whether the two posts are analogous, it must be decided by comparing their duties, scales of pay and categories to which they belonged. Hence, the post of Junior Accounts Officer in office of the Comptroller and Auditor General is not analogous to the post of Joint Assistant Director in Border Security Force (BSF). In (1997) 3 SCC 561, M. Hara Bhupal v. Union of India, the Hon'ble Apex Court again held that if the post held in parent department and the post held in deputation are analogous, one is entitled to the benefit of OM dated 03.10.1989. It was also declared that merely because the persons performing analogous responsibilities are governed by two sets of rules, they cannot be treated to be on a par, for the purpose of getting seniority. Respondent argues that the applicant is not holding a post in Krishi Vigyan Kendra, which is analogous to CDC. Hence his request at Annexure A5 also could not be granted since he stands at 15 th position in the seniority list dated 15/12/2012 of Agriculture Demonstrator and similar grades, published by the Directorate of Agriculture.
6. As per MoU dated 17.7.1998 signed between UTLA and ICAR, for establishment of KVK at Kiltan, the staff to be recruited under KVK will be on the strength of the Administration of Lakshadweep and they will be entitled for all privileges and facilities prevalent in the Administration structure. The Administrative control over the staff engaged shall vest in the Administration. The appointment given under KVK will not be counted for any kind of weightage of merit or seniority on and above the seniority list maintained by the Department for promotion in the departmental posts. In all aspects the employees spared to the KVK will also be taken into consideration when the concerned Department is making promotions based on the merit/selection.
7. Respondents further contend that as per the judgment in O.P.(CAT) No.3147/ 2011 filed by Sri C.P.Mullakoya, the High Court declared that he may be considered for appointment as Coconut Development Officer subject to outcome of UPSCb�s decision. It means that the selection to the post of Coconut Development Officer is to be made by UPSC. But the High Court quashed the employment notice dated 07.09.2009. Hence, there is no employment notice issued for the post of CDO and applicant had also not submitted any application for selection to the post. Moreover the Post of Coconut Development Officer is to be filled up by promotion/deputation from the feeder post of Plant Protection Officer. The applicant is placed in the Agriculture Demonstrator grade which is not the feeder post of Coconut Development Officer and hence, respondent argues that the claim of the applicant is not maintainable.
8. Applicant's contention is that since in KVK he is holding a post carrying the same pay scale as Coconut Development Officer, he should be considered for the post on deputation basis. We hold that as and when the post is advertised for being filled by deputation, the applicant's case be considered as a person holding an analogous post if the definition covers persons drawing the same pay scale as post advertised. But an appointment without following the procedure laid down in the Recruitment Rules is not advised. We also note that appointment as CDO is not a prayer in the OA.
9. Respondent informs that the UPSC had issued the final decision stating that Sri C.P.Mullakoya is ineligible to hold the promotion post of CDO. Since he had not rendered 3 years regular service as Plant protection Officer and thus he is ineligible for consideration on promotion basis. The UPSC had directed the Administrator to take necessary action to fill up the post as per the existing Recruitment Rule since the proposal to fill up the post on promotion had become infructuous. As such the claim of the applicant is also liable to be rejected and not sustainable as he is similarly placed.
10. The proposal for shifting of KVK Lakshadweep came in September 2015 from ICAR. Prior to that, the applicant, as early as on 12.3.2015, had submitted an application for repatriation stating that he is the senior most qualified man to get promotion in his parent department after the retirement of Sri. C.P. Mullakoya in June 2015. By Annexure A4 letter F.No.2- 325/ZPD/2012-13 dated 01.09.2015, the ICAR informed the Lakshadweep Administration that the competent authority of ICAR has decided to transfer the Administrative control of KVK, Lakshadweep from the Lakshadweep Administration to the ICAR-Central Island Agricultural Research Institute (CIARI), Port Blair. In Annexure A4 Clause No.3, it was also stated that the Lakshadweep Administration may consider absorbing one one Subject Matter Specialist who has been exclusively recruited for KVK. Alternatively the SMS will have to continue in the KVK under CIARI, Port Blair. In tune with Annexure A4, the Administration by order dated 22.04.2016 proposed to repatriate all the Administration staff to their concerned parent department except Dr. V.M. Abdul Ghafoor SMS (VS) since he is the only man who was appointed exclusively for KVK. Hence the instructions of IARI were complied and orders for repatriation of the applicant on the basis of his application was ordered.
11. Heard the counsel for both sides and perused the written submissions made.
12. A reading of Annexure R(1)(a) appointment order reveals that the nature of appointment is not indicated. In the government, appointment can be made by deputation, by promotion, by transfer or by direct recruitment. In Annexure R(1)(a) appointment order, it is stated that applicant's selection for the post is purely on the recommendation of the selection committee. This is also not helpful, as selection can be by the mode of deputation or by direct recruitment and the specific mode is not indicated in the said appointment order. If the mode of selection is by deputation then applicant on repatriation will return to his erstwhile post. If selection is by way of direct recruitment, any down-gradation is not permissible.
13. The appointment letter of applicant to KVK is dated 8.9.2009 and issued by Department of Agriculture, U.T. of Lakshadweep. However, the applicant's name finds a mention in the seniority list of Technical Assistant (TA) issued by the Island Administration on 5/12/2012 i.e., after his appointment as Subject Matter Specialist (SMS), KVK. Applicant's name in Annexure R(1)(b) Technical Assistant seniority list is at S.No.15. If the applicant had been selected as a direct recruit to the post of SMS in KVK, then his lien in the gradation list of TA would not have been maintained. This makes us derive the conclusion that the appointment as per Annexure R(1)(a) is not by direct recruitment. Whereas mode of recruitment should have been categorically stated in Annexure R(1)(b) appointment order, this has, however, been omitted. The use of the words 'selection' and 'appoint' and 'selection committee' can relate to the method of appointment by deputation also. Deputation can be to a post in the same pay scale or to a post in a higher pay scale.
14. We have perused the MoU between ICAR and Island Administration, to have a better understanding of the applicant's claim. Para 6 of the MOU between the Island Administration and ICAR states that the Council and the Island Administration:
'......have decided to pool their resources like money, scientific manpower, skills, equipments and others.....'.
Hence there was an agreement to pool manpower resources and not absorb them in the KVK. The said agreement under Article II para 9 states that the items of assistance would inter-alia include:
9(i): Competent scientists and Technical staff provided in the guidelines specially provided for the KVK.
The use of the phrase 'specially provided for the KVK' would indicate that such pooling of staff would be used for the KVK work only and cannot be shared to do the work of the Island Administration also. This is supported by Article III 10 (v):
10(v): Not to direct any scientific, technical and office staff for any other work other than the activities of the KVK.
15. The exclusivity of the use of such pooled staff for the KVK and banning use of their services by the Island Administration in the erstwhile post held by them, does not change the status of the pooled staff resource. How such pooled staff resource would be selected is stated in 10 (ix) of the MOU:
10 (ix) seek approval of the Council for constituting selection committee and proceedings of the selection committee before issuing letter of appointment.
may be with the intention of selecting appropriately qualified staff to man the KVK. That is since the staff of KVK were engaged for farm research, demonstration and training in the field of agriculture and allied areas, any unqualified or inappropriately qualified person cannot be deputed to KVK. The person so share-pooled with KVK, cannot be any person who can be spared or unwanted by the agriculture department, but had to be one who could undertake the above specified activities and hence there arose a need for selection and a selection committee so that the pooled resource is one who is technically qualified to undertake the Krishi Vikas Kendra activities on a full time basis. This selection or selection committee did not change the status of pooling the available manpower resources.
16. Para 10(xiv) of MOU also states:
Para 10(xiv): To take the responsibility for providing alternative employment /absorption of KVK staff in other projects, if any, in the even of closure of the project. The above clause rests the responsibility of employment/absorption on the Island Administration thereby indicating that the applicant does have a right to be absorbed in the KVK. That is KVK will operate on the basis of borrowed/pooled staff who are selected and appointed on the basis of their technical/scientific qualification/knowledge and in the event of closure of KVK, the staff reverts to the Island Administration and do not have any rights vis-a-vis KVK as the KVK itself is created with staff pooled from the Island Administration.
17. Para 11 (ii) of the MOU states:
Para 11 (ii): The administrative control over the staff employed under the Scheme shall vest in the Administration of U.T. of Lakshadweep (SAUs/Institutes/NGO-Second Party). That is even if the staff had been taken from an institute or NGO or the Island Administration, the administrative control shall vest with the respective institute/NGO/Island Administration as the case may be. Hence the borrowing or pooling is established despite selection, on which applicant lays much emphasis and the administrative control of applicant will thus rest with the Island Administration and his repatriation or closure is a fait accompli. This establishes the fact that absorption or appointment by deputation was not visualized.
18. The above could also account for the fact that on closure of KVK in Kiltan, all the staff, except applicant who had a stay order from the Tribunal, were returned to the Island Admn. Had the stay not been in operation, the applicant would have also been returned to the Island Administration as his administrative control vested with the Island Admn. And as per clause 10
(xiv) of the MOU, the responsibility for providing alternative employment/absorption of KVK staff in the other projects, if any, in the even of closure of Kiltan Project rested with the Island Administration. A further direction is received from Article VII Clause 14 (i):
Clause 14 (i): In the event of termination of the scheme due to unforeseen reasons the equipment and other articles including assets purchased and/or created under the scheme shall remain the property of the Council. The same clause not stated in respect of the staff who have been borrowed/pooled with the Island Administration and whose administrative control vests with the Island Administration.
19. Article IX of the MoU states the status of the KVK project as a 'cooperative venture', to be read as cooperation between ICAR and Island Administration wherein the responsibility of the two agencies has been clearly defined and laid down and the responsibility for providing the staff rested with the Island Administration.
20. We note that the agreement between ICAR and Island Administration was signed in 1998-99 when the need for agricultural research was intense and nature of such development was therefore different. Due to advancement and scientific development in agriculture, the need in the period 2010 onwards i.e., after 20 years for agricultural research would have undergone a change and the ICAR cannot be fettered with the old arrangements of the center or the scientific staff required. Whereas we agree that the changing research needs have to be catered to, unfettered by individual demands of staff, these needs should have been visualized and provided more clearly in the agreement. In the event of termination of the scheme, as in Kiltan, whereas ICAR has made arrangements in the clause 14 (i) of the MoU to establish ownership of equipment etc the responsibility of providing alternate employment to staff rendered surplus lies with the Island Admn. The Island Administration is faced with the difficulty of absorbing the applicant, whose original cadre is lower than the one in which he was engaged in KVK i.e., in a higher cadre in comparison with the cadre in which he was working in Island Administration. Such a move, as per MoU, to absorb the applicant in Island Administration in the post of Coconut Development Officer to which he has no right by birth or by right of having worked as Plant Protection Officer thereon for any period of time, would cause a grievance to those who exercised the choice to continue to work with the Island Administration and look forward to move to the higher post, by virtue of seniority and passage of time and provision of recruitment rules. The post of Coconut Development Officer is the promotion post of Plant Protection Officer and the rights of PPO cannot be infringed by the applicant.
21. Vacancy notification indicates that the filling up the post of the Subject Matter Specialist (Plant Protection) to which applicant had applied, was temporary. Hence, on this ground also, the applicant was kept informed of the temporary status of his engagement. Subsequent developments would not change the temporary status of his engagement. Hence, his repatriation on the ground of his temporary engagement, would also not violate any rights of applicant.. Para 6 of Annexure A8(1) produced by the applicant also states that the staff to be recruited under KVK will be on the strength of the Island Administration and will be entitled to all privileges and facilities prevalent in the Administration structure. Hence on this ground also, repatriation of applicant cannot be challenged. In para 7 of Annexure A8 it is stated that KVK Lakshadweep will be part and parcel of the Department of Agriculture, Lakshadweep and Secretary, Agriculture will be the controlling officer.
22. The KVK has been shifted from Kiltan to Kavaratti and the surplus staff has been repatriated to Island Administration. ICAR and the Island Administration have retained Dr.V.M.Abdul Ghafoor, Subject Matter Specialist (Poultry & Animal Science) in KVK, Kavaratti as he is not an employee of Union Territory of Lakshadweep and hence cannot be absorbed or given any alternate employment in the Island Administration. Hence no purpose would be served by giving the relief of SMS to applicant by disturbing Dr.Ghafoor as this would give rise to another cause of grievance.
23. There is no doubt that applicant had put in a request for repatriation on 12.3.2015 which he withdrew later, whereas the other SMS has not put in such a request as he had held no post in the Island Administration and was recruited for KVK. Applicant was relieved from KVK on 4.3.2016 as per above request for repatriation. He approached the Tribunal on 30.3.2016. Respondent argues that KVK Lakshadweep was under the administrative control of Secretary, Agriculture Lakshadweep and applicant has not submitted any leave application since his relief from KVK and therefore is on unauthorized absence. His absence is an issue to be sorted out by the Secretary, Agriculture. The fact remains that the applicant was relieved on 4.3.2016 before the status quo order was issued by the Tribunal on 30.3.2016. Hence retention of applicant or continuation of applicant in KVK is no longer feasible. Since applicant stands relieved from KVK, he has to report to the Island Administration. Whereas posting the applicant in any promotional post above his seniors would cause injustice to seniors, we direct that on repatriation to parent department, the higher pay drawn by the applicant in KVK be protected till such time as the applicant is promoted in turn, in his parent cadre to the scale of pay drawn in KVK.
24. OA is dismissed with above direction. No order as to costs.
25. MA/181/01240/16 is filed by the applicant for a direction to the respondents to give effect to the interim order dated 30.3.2016 by restoring status quo ante with respect to Krishi Vigyan Kendra, Kiltan, as on 30.3.2016 and to permit the applicant to rejoin duty as Subject Matter Specialist having additional charge of Programme Coordinator. In view of the order passed dismissing the OA, the MA has become infructuous and the same is also dismissed.
(P.Gopinath) (N.K.Balakrishnan) Administrative Member Judicial Member aa.