Kerala High Court
Dr Pradeepkumar. G vs The Secretary on 9 June, 2017
Author: P.V.Asha
Bench: P.V.Asha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
WEDNESDAY, THE 11TH DAY OF APRIL 2018 / 21ST CHAITHRA, 1940
WP(C).No. 31962 of 2017
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PETITIONER:
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DR PRADEEPKUMAR. G,
AGED 55 YEARS, S/O. GOPALAKRISHNA PILLAI,
SCIENTIST -G, RAJIV GANDHI CENTRE FOR
BIO TECHNOLOGY, JAGATHY, THYCAUD P.O.,
POOJAPPURA, TRIVANDRUM, RESIDING AT
SRA 125-1, PMV NAGAR LANE, ELIPOD,
VATTIYURKAVU P.O - 695 013, TRIVANDRUM.
BY ADVS.SRI.RAJESH SIVARAMANKUTTY
SRI.R.S.SARAT
SRI.ISAAC GEORGE
RESPONDENT(S):
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1. THE SECRETARY
DEPARTMENT OF BIO TECHNOLOGY,
NEW DELHI - 110 001.
2. THE DIRECTOR
RAJIV GANDHI CENTRE FOR BIO TECHNOLOGY,
THYCAUD P.O., POOJAPPURA,
TRIVANDRUM - 695 001.
R1 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
SMT.MAHESWARY.G., CGC
R2 BY DR.K.P.SATHEESAN (SENIOR ADVOCATE)
SRI.P.MOHANDAS (ERNAKULAM)
SRI.S.VIBHEESHANAN
SRI.K.SUDHINKUMAR
SRI.S.K.ADHITHYAN
SRI.MUHAMMED IBRAHIM ABDUL SAMAD
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 11-04-2018, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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WP(C).No. 31962 of 2017 (U)
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APPENDIX
PETITIONERS' EXHIBITS:
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EXHIBIT P1 TRUE COPY OF THE ORDER OF SUSPENSION BEARING
NO.RGCB/VIG/17/2017 DATED 09.6.2017 ISSUED BY THE
2ND RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE ORDER IN CRL.M.C NO. 3977/2017
DATED 08.09.2017.
EXHIBIT P3 TRUE COPY OF FIR NO. 0811/2017 OF POOJAPPURA
POLICE STATION, TRIVANDRUM DATED 24.5.2017.
EXHIBIT P4 TRUE COPY OF THE COMPLAINT SUBMITTED BY
MR.RAJEEV, DATED 19.5.2017 TO THE DIRECTOR OF
2ND RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED 08.9.2017
SENT TO THE 1ST AND 2ND RESPONDENT.
EXHIBIT P6 TRUE COPY OF ORDER NO. RGCB/VIG/17/2017
DATED 01.9.2017.
EXHIBIT P7 TRUE COPY OF ORDER NO. RGCB/VIG/2017
DATED 12.9.2017.
EXHIBIT P8 TRUE COPY OF THE ORDER NO.RGCB/DIR/19/2017,
DATED 11.9.2017.
EXHIBIT P9 TRUE COPY OF THE REPRESENTATION DATED 16.9.2017
MADE BY THE PETITIONER TO THE 2ND RESPONDENT
DIRECTOR.
EXHIBIT P10 TRUE COPY OF THE STATEMENT GIVEN BY THE
PETITIONER ON 18.09.2017 IN THE PRELIMINARY
ENQUIRY ON THE DISCIPLINARY PROCEEDINGS
SOUGHT TO BE INITIATED AGAINST HIM.
EXHIBIT P11 TRUE COPY OF THE COMPLAINT MADE BY RAJEEV R.V.,
LAB ASSISTANT, RCGB DATED 11.9.2017.
EXHIBIT P12 TRUE COPY OF ORDER NO. BT/PR3600/MED/31/299/2015
DATED 01.3.2017.
EXHIBIT P13 TRUE COPY OF ORDER NO. RGCB/ADML/1056/45/2017
DATED 03.10.2017.
EXHIBIT P14 TRUE COPY OF THE ALLOCATION OF DUTIES ISSUED BY
THE PETITIONER TO MR.RAJEEV R.V DATED 13.3.2017.
EXHIBIT P15 TRUE COPY OF THE FURTHER COMMUNICATION MADE
BY THE PETITIONER DATED 16.3.2017 TO THE
CONTROLLER OF ADMINISTRATION.
EXHIBIT P16 TRUE COPY OF THE REPLY COMMUNICATION GIVEN BY
THE CONTROLLER TO THE PETITIONER, DATED 20.3.2017.
WP(C).No. 31962 of 2017 (U)
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EXHIBIT P17 TRUE COPY OF MEMO OF CHARGES BEARING NO.RGCB/DIR/84/2017
DATED 9.10.2017.
EXHIBIT P18 TRUE COPY OF THEE-MAIL COMMUNICATION SENT BY THE
PETITIONER DATED 14.3.2017 ADDRESSED TO THE
PHD STUDENTS WORKING UNDER THE PETITIONER.
EXHIBIT P19 TRUE COPY OF ORDER NO.22/79/2010
EO(SM.2) DATED 20.10.2015.
EXHIBIT P20 TRUE COPY OF THE ANNUAL PERFORMANCE APPRAISAL REPORT
FOR THE PERIOD 2004-05 DATED 20.4.2006.
EXHIBIT P20 TRUE COPY OF THE REPRESENTATION DATED 6.6.2014(IA.20327/2017)
EXHIBIT P21 TRUE COPY OF THE NEWS PAPER REPORT PUBLISHED IN
ENGLISH DAILY DATED OCTOBER 16 TO 19.
EXHIBIT P22 TRUE COPY OF THE APAR FORMS SUBMITTED BY THE PETITIONER
FOR THE YEARS 2004-05, 2005-06, 2006-07, 2007-08
AND 2008-09.
EXHIBIT P23 TRUE COPY OF THE ASSESSMENT PROMOTION RULES, 2008.
EXHIBIT P24 TRUE COPY OF THE ASSESSMENT PROMOTION RULES 2010.
EXHIBIT P25 TRUE COPY OF THE APAR MARKS AWARDED TO THE PETITIONER
BY THE 2010 PROMOTION RULES 2011.
EXHIBIT P26 TRUE COPY OF THE ASSESSMENT PROMOTION RULES 2011.
EXHIBIT P27 TRUE COPY OF THE REPRESENTATION DATED 18.6.2013
GIVEN TO THE 2ND RESPONDENT.
EXHIBIT P28 TRUE COPY OF THE REPRESENTATION DATED 24.7.2013
FILED BY THE PETITIONER BEFORE THE CHAIRMAN
GOVERNING COUNSEL.
EXHIBIT P29 TRUE COPY OF THE APAR REPORT DATED 4.10.2013 ISSUED
BY THE 2ND RESPONDENT TO THE PETITIONER.
EXHIBIT P30 TRUE COPY OF THE REVISED APAR REPORT FURNISHED BY
THE 2ND RESPONDENT BEARING NO.DIR/ACAD/01/10/2013
DATED 1.10.2013.
EXHIBIT P31 TRUE COPY OF THE REPORT OF PEER REVIEWERS FOR THE
PERIOD 15.4.2004 TO 31.3.2013.
EXHIBIT P32 TRUE COPY OF THE COMPLAINT BY THE PETITIONER TO THE
CHAIRMAN GOVERNING COUNCIL CENTRE FOR RAJIV GANDHI
INSTITUTE OF BOI TECHNOLOGY.
EXHIBIT P33 TRUE COPY OF THE REPORT OF THE RAP DATED 28.8.2013.
EXHIBIT P34 TRUE COPY OF THE APPOINTMENT ORDER
NO.DIR/RGCB/RES/ADMIN/01/08/2016 DATED 17.8.2016 OF
DEAN AND ASSOCIATE DEANS.
WP(C).No. 31962 of 2017 (U)
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EXHIBIT P35 TRUE COPY OF THE REPRESENTATION DATED 27.10.2016.
EXHIBIT P36 TRUE COPY OF THE REPLY BEARING NO.RGCB/BIR/GPK/0126/2016
DATED 27.10.2016 GIVEN BY THE 2ND RESPONDENT TO THE
PETITIONER.
EXHIBIT P37 TRUE COPY OF THE STUDENT FEEDBACK SHEET OF COURSE
LECTURES OF DR.PRADEEP KUMAR FOR THE YEAR 2014.
EXHIBIT P38 TRUE COPY OF THE ORDER DATED 20TH FEBRUARY 2018.
RESPONDENTS' EXHIBITS:
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EXHIBIT R2(A) TRUE COPY OF THE ORDER DATED 11.1.2018 IN
CRL.M.A.NO.12501/2017 IN CRL.M.C.NO.3977/2017.
EXHIBIT R2(B) TRUE COPY OF THE PROCEEDINGS OF THE SCIENTISTS'
ASSESSMENT COMMITTEE DATED 17.12.2010.
EXHIBIT R2(C) TRUE COPY OF THE PROCEEDINGS OF THE PROMOTION SCREENING
COMMITTEE FOR FCS - ASSESSMENT OF SCIENTISTS 2012.
EXHIBIT R2(D) TRUE COPY OF THE MINUTES OF THE GOVERNING COUNCIL OF
RAJIV GANDHI CENTRE FOR BIOTECHNOLOGY HELD ON 12.09.2013.
EXHIBIT R2(E) TRUE COPY OF THE PROCEEDINGS OF THE REVIEW COMMITTEE
OF RAJIV GANDHI CENTRE FOR BIOTECHNOLOGY GOVERNING COUNCIL
DATED 13.7.2016.
EXHIBIT R2(F) TRUE COPY OF THE LETTER GIVEN BY THE ADVISOR
DEPARTMENT OF BIOTECHNOLOGY, MINISTRY OF SCIENCE AND
TECHNOLOGY, GOVERNMENT OF INDIA DATED 4.8.2016.
EXHIBIT R2(G) TRUE COPY OF THE RECRUITMENT RULES OF THE POST OF
DIRECTOR, RAJIV GANDHI CENTRE FOR BIOTECHNOLOGY,
THIRUVANANTHAPURAM AS APPROVED BY THE COMPETENT
AUTHORITY DATED 28.9.2012.
EXHIBIT R2(H) TRUE COPY OF THE COMPLAINT FILED BY SHRI RAJEEV R.V
DATED 11.9.2017.
EXHIBIT R2(I) TRUE COPY OF THE REPORT FILED BY THE 2ND RESPONDENT
BEFORE THE KERALA STATE COMMISSION FOR SCHEDULED CASTE
AND SCHEDULED TRIBES DATED 13.10.2017.
EXHIBIT R2(J) TRUE COPY OF THE REPORT FILED BY THE 2ND RESPONDENT
BEFORE THE NATIONAL COMMISSION FOR SCHEDULED CASTE
DATED 16.10.2017.
EXHIBIT R2(K) TRUE COPY OF THE LETTER GIVEN BY THE 2ND RESPONDENT
TO THE PETITIONER DATED 15.07.2013.
WP(C).No. 31962 of 2017 (U)
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EXHIBIT R2(L) TRUE COPY OF THE ABSTRACT OF THE AGENDA AND
MINUTES OF ITEM NO. 13 OF THE 8TH GOVERNMENT
COUNCIL MEETING HELD ON 12.09.2013 WAS GIVEN TO
THE PETITIONER ALONG WITH A COVERING LETTER BY
THE 2ND RESPONDENT DATED 28.11.2013.
/TRUE COPY/
P.S.TO JUDGE
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13.04.2018.
P.V.ASHA, J.
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W.P(C) No. 31962 of 2017-U
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Dated this the 11th day of April, 2018
JUDGMENT
The petitioner, who is a Scientist G in the Rajiv Gandhi Centre for Bio Technology, has filed this writ petition aggrieved by Ext.P7 order retaining him under suspension and Ext.P17 memo of charges issued to him.
2. The case of the petitioner is that he has been working under the 1st respondent for more than 2 decades. He is a Ph.D holder in Bio Technology. 17 students have already completed Ph.D under him and 8 students are undergoing Ph.D under him; apart from that several post doctoral fellows have already undergone training under him. He is a reviewer of international journals and has secured several awards in recognition of his contribution towards Bio Technology. While working in the Rajiv Gandhi Centre for Bio Technology (hereinafter referred to as `the Centre'), he was placed under suspension as per Ext.P1 order pursuant to a crime registered against him in Poojapura Police Station based on a complaint of one Rajeev.R.V, a Laboratory Assistant in the Centre alleging W.P(C) No. 31962 of 2017-U 2 that he ignored him since he belonged to Scheduled caste community and he insulted him referring to his caste name and thus acted in contravention of SC and ST (Prevention of Atrocities) Act, 1980. The petitioner challenged the FIR registered before the Poojapura Police Station, Trivandrum in Crl.M.C.No.3977 of 2017 and this Court as per Ext.P2 order quashed the same. In the Crl.M.C the petitioner alleged that the complainant was only a tool in the hands of the 2 nd respondent and that the 2nd respondent and persons interested in seeing that the petitioner is not appointed as Director of the Centre for which selection was due, were behind this move. The contention of the petitioner was accepted by this Court. Immediately after the FIR was quashed by Ext.P2 order, the complainant submitted Ext.P11 complaint before the 2nd respondent on 11.09.2017, with a slight change in the averments. Even though the substance of this complaint also was that the petitioner called him by caste name and had been harassing him, in the first complaint the allegation was that the petitioner harassed him inside the cabin. In Ext.P11 the complainant's allegation was that the petitioner harassed him by calling his caste name.
3. The petitioner points out that the FIR was quashed on the ground that there was no allegation that any incident alleged by the complainant occurred in public. Allegation was that the incident occurred W.P(C) No. 31962 of 2017-U 3 inside the cabin of the petitioner and the complainant did not have a case that anyone saw or heard what transpired there. The petitioner, who was placed under suspension as per Ext.P1 order pursuant to the crime registered against him, was retained under suspension by the 2 nd respondent by issuing Ext.P7 order dt.12.9.2017. In fact Ext.P1 order of suspension was extended for a further period of 90 days as per Ext.P6 order on 01.09.2017 w.e.f 6.9.2017. Ext.P7 order was passed after the crime registered against him was quashed.
4. In the meanwhile the 2nd respondent proceeded to take departmental action against the petitioner, based on the complaint dt.19.5.2017 of Sri Rajeev.R.V. As per Ext.P8 order dt.11.9.2017 the 2 nd respondent entrusted Dr.R.Ashok, Registrar of the Centre to conduct a preliminary enquiry against the petitioner on the misconduct alleged to have been committed by the petitioner in the light of RGCB Rules for Disciplinary Procedure read with relevant rules in Central Civil Services (Classification, Control and Appeals) Rules, 1965.
5. Immediately after this Court quashed the criminal proceedings, the petitioner had submitted a request for revocation of his suspension. Thereafter, by Ext.P9 representation he again requested to revoke the suspension and to allow him to join duty. In the preliminary enquiry, the W.P(C) No. 31962 of 2017-U 4 petitioner's statement was taken in which he denied the allegations against him and explained the circumstances leading to the suspension and registration of crime. The petitioner stated that he did not make any complaint against the said Rajeev about any disobedience or of his conduct in the lab to the administration and that he had only stated in his letter dt.16.3.2017 that no job could be assigned to him as he refused to accept any of the assigned jobs and that was the most polite way he could have requested the administration to transfer him to another lab where he might be willing to do jobs of his liking. He also stated that he had allotted job to other persons working. He had stated that he does not have the qualification or expertise to perform the duties assigned to him as he is not from Science stream. The complaint of Sri Rajeev was that the petitioner did not respond when he says good morning to the petitioner. He stated that Rajeev was one among those who were in the first row of his lab and Sri. Rajiv was the only person who never used to reciprocate to his greetings. He stated that he did not have any complaint over that. Yet another complaint of Rajiv was that other staff members in the lab do not talk to him. The petitioner stated that other staff had been working with him but Rajiv refused to do any job assigned to him.
6. Ext.P17 memo of charge was issued to the petitioner on W.P(C) No. 31962 of 2017-U 5 9.10.2017 proposing to take action against him under the provisions contained in Rule 12.3 of the Rajiv Gandhi Centre for Biotechnology Rules (`RGCB Rules' for short) for disciplinary proceedings r/w Rule 14 of Central Civil Services (Classification, Control and Appeal) Rules 1965. Along with Ext.P17 memo, statement of allegation, articles of charges as also a list of documents and list of witnesses were annexed. The petitioner was directed to submit his statement of defence and to inform whether he desired to be heard in person. Ext.P17 memo of charges were issued during the pendency of the writ petition. The petitioner stated that the 2 nd respondent Director's intention was to harass him and in order to see that the petitioner is not considered for appointment as Director, he obtained another complaint from Sri. Rajeev and issued the memo of charge for the same incident.
7. The petitioner has got a further case that the allegations raised against him in the memo of charges are the same as those which were contained in the FIR which was quashed by this Court. Relying on the judgment in G.M.Tank v. State of Gujarat & Ors. [2006 (3) KLT 514 (SC) : 2006 (5) SCC 446], the petitioner points out that the memo of charges were issued to him immediately after he filed this writ petition challenging the order of suspension on the ground that there was no memo W.P(C) No. 31962 of 2017-U 6 of charge based on which he could be continued under suspension. Immediately on receipt of notice in the writ petition, the petitioner was served with a memo of charge and another order of suspension. The ground on which the petitioner was proceeded against is that he had been adopting a discriminatory approach towards Sri Rajeev. According to the petitioner, he is the only Scientist in the Centre, who is qualified for consideration to the post of Director as per the Rules. It is stated that the 2 nd respondent had already completed 2 terms as Director and he was granted extension till February, 2018 and it was at that stage in order to avoid the consideration of the petitioner that, proceedings are initiated against him. It is also stated that the present Director as well as the petitioner were contestants for the post of Director in the year 2005. According to the petitioner, he was overlooked on political consideration. It is also stated that the petitioner lost his opportunities for promotion to Scientist G when he was due for assessment promotion in 2009 as there was no assessment promotion committee meeting held in 2009 ad 2010 though he had completed 6 years of residency period as Scientist F. It is stated that he was denied promotion in 2011 and 2012 modifying the RGCB Promotion Rules. According to him, the 2nd respondent, who was the chairman of the promotion committee, was instrumental for changing the rules in order to deny him promotion. It W.P(C) No. 31962 of 2017-U 7 is stated that after the petitioner took up the matter before the higher authorities in 2013, he was promoted as Scientist G on the 9 th year of his residency period as Scientist F. The petitioner has alleged very serious irregularities on the part of the 2nd respondent in not promoting him.
8. The respondents have filed counter affidavit and additional counter affidavit denying the allegations of the petitioner. According to them, disciplinary proceedings were initiated against the petitioner after obtaining concurrence from the Department of Bio Technology, Govt. of India and the same is on the basis of a complaint received from Sri. Rajeev and the 2nd respondent does not have any direct involvement in the complaint or in the enquiry. The petitioner was placed under suspension and subsequently he has been reinstated and a departmental inquiry is conducted by a very senior officer of the Central Govt. who does not have any connection with the Centre. It is stated that the petitioner would be given sufficient opportunity to prove is innocence in the inquiry. While denying allegations against the 2 nd respondent it is stated that selection and appointment to the post of Director is not through departmental promotions. It is an open recruitment on all India basis after selection through selection committee as per instructions of DOBT and selection is finalised after approval of appointment committee of W.P(C) No. 31962 of 2017-U 8 the cabinet of the Government of India. It is stated that as per the norms, Scientists having outstanding track records with 5 years service in the grade pay of Rs.10,000/- and who is not more than 56 years is eligible to apply. It is stated that the post is not restricted to Scientists of RGCB alone and any Scientists in India can apply for the post. It is stated that the tenure of 2 nd respondent is upto 31.8.2020 and that he continues as Director based on his performance as Director and a Medical Scientist. It is stated that his continuation as Director till his superannuation on 31.8.2020 has already been recommended by the governing body of the institute and the Dept. of Biotechnology and it has further been approved by the Minister for Science and Technology, Govt. of India and it was sent to the Prime Minister for approval. According to the 2 nd respondent, even if the Govt. of India invites application, the petitioner would not be eligible to apply for the post of Director since the requirements of having track records as a Scientist with 5 years service in the grade pay of Rs.10,000/- are necessary. While denying the allegations of bias against the 2 nd respondent it is stated that the assessment committee for promotion assessed the performance of the petitioner and the petitioner was not found eligible for promotion and the committee is an independent committee chaired by nationally renowned external scientist comprising of senior well known Scientists of the country W.P(C) No. 31962 of 2017-U 9 in the relevant fields.
9. Along with I.A.No.20327, the petitioner produced Ext.P20 representation he submitted on 06.06.2014 before the Chairman of the Governing Council of the Centre, explaining how he was denied promotion till 2013, the illegal procedure adopted by the present Director who took charge on 01.03.2005, in obtaining bulk performance appraisal reports for the years 2004-05, 2005-06, 2007-08 and 2008-09 and the violation of the rules and procedure both in assessment and assessment promotion. He also pointed out that out of the 5 members in the Committee for assessment for promotion, 2 are the nominees of Director and one is the Director himself. There is only one member who is not nominated by the Director. Explaining the marks awarded by those members, the petitioner alleges that his promotion was purposefully delayed at the instance of the present Director till the year 2013 and now at the time when the selection is due for the post of Director, the 2nd respondent again wants to see that the petitioner is not considered and for that purpose he has made Sri. Rajeev a tool.
10. In the reply affidavit, the petitioner stated that in the ACR for 2004-05 he was assessed as outstanding. But after the present Director took charge, the rule itself was changed so as to deny the career prospects of the petitioner. It is stated that but for the changes effected in the rules of the W.P(C) No. 31962 of 2017-U 10 game after the selection process started, the petitioner would have got appointment as Director. The ex-officio President was given the discretion to select one from the panel, by changing the rules during the pendency of proceedings for selection. He claims that he was no.1 among the 3 Scientists selected. But by amending the Rules, the 2 nd respondent was appointed though he was No.3. It is therefore stated that the 2 nd respondent has always been adopting a hostile attitude towards the petitioner, based on which he had to wait for promotion till the year 2013. It is stated that the Director did not provide APAR forms from 2005-06 to 2008-09 and he was asked to submit the same together in December 2009, based on which he submitted Ext.R22 series for those years; it is alleged that since the APAR marks satisfied the eligibility requirement for promotion, the 2 nd respondent got the rules amended allocating only 25% marks for APAR as per Ext.P24 Rules in 2010. The rules were made drastic again in 2011 by issuing Ext.P26. It is stated that he had tuned his research and work in accordance with the rules which were in force prior to 2010. But the alterations made from time to time, put him to serious prejudice. Producing Exts.P29 to P31, the petitioner submits that the 2nd respondent was bent upon in lowering the marks of the petitioner in the APAR and that those marks were not even disclosed to him. He has produced the representation Ext.P27 to the 2 nd respondent and W.P(C) No. 31962 of 2017-U 11 Exts.P28 and P32 to the Chairman pointing out the manipulations in the APAR, referring to Exts.P29 to P31 APAR marks awarded by the 1 st respondent and the peer reviewers. It is stated that even from 2013 onwards, the APARs are not maintained properly. The petitioner points out that despite all these, the RAP (Research Area Panel) consisting of highly reputed elite Scientists has assessed his performance as b