Central Administrative Tribunal - Bangalore
Sanjeeda Tabasum M vs M/O Ayush on 15 February, 2023
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OA.No.480/2018/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00480/2018
ORDER RESERVED ON:09.12.2022
DATE OF ORDER: 15.02.2023
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
Sanjeeda Tabasum. M,
D/o M. Mohd. Jalal (Late),
Aged about 50 years,
Working as Biochemist,
National Institute of Unani Medicine,
Kottigepalya, Magadi Main Road,
Bangalore-560 091.
R/at: No.97, 2nd Stage, 2nd Block,
Nagarabhavi,
Bangalore - 560072. ....Applicant
(By Advocate Shri Vijaya Kumar Bajentri )
Vs.
1. Union of India,
Represented by its Secretary,
Ministry of Ayush,
Ayush Bhavan,
'B' Block, GPO Complex,
INA Colony,
Government of India,
New Delhi 110023.
2. The Director,
National Institute of Unani Medicine,
Kottigepalya,
Magadi Main Road,
Bangalore-560 091. ....Respondents
(By Shri Vishnu Bhat, Sr. Panel Counsel)
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OA.No.480/2018/CAT/Bangalore Bench
ORDER
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicants have filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
a) To quash order No.R.13015/ 12/2016-NI dated 17.04.2017, issued by the 1st respondent, (Annexure-A17), vide which her representations dated 25.2.2015 and 18.8.2015 requesting for grant of in-situ promotion benefits to her as per the In-situ promotion Scheme notified by the Department of AYUSH under the Ministry of Health and Family Welfare, have been rejected.
b) To quash order No.13015/14/2017-NI (NIUM) dated 17.01.2018 issued by the 1st respondent (Annexure-A22) vide which the applicant has been advised not to write to the Ministry directly.
c) To quash Order No.2-58/04-05/NIUM/B'lore/ESTT/5010, dated 29.01.2018, issued by the 3rd respondent (Annexure-A 23), vide which applicant was directed not to file repeated representations for grant of in-situ promotion and not to repeat such misconduct in future.
d) To direct the respondent No-1 & 2 to amend the recruitment Rules of the 2nd respondent institution, to apply In-situ promotion Rules to be applicable to 2nd respondent institution for the post of Biochemist in particular.
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e) To direct the respondents 1 to 3 to consider her claim for extending the benefit of In-situ promotion to the post of BIOCHEMIST and extend all consequential benefits retrospectively along with arrears that she would be entitled to by applying In-situ promotion scheme to a BIOCHEMIST in the 2nd respondent Institute.
f) To grant such other reliefs as this Tribunal deems fit in the facts and circumstances of the case.
2. This is the 2nd round of litigation in the matter. Earlier the applicant had filed OA.No.256/2016 praying for extension of in-situ promotion in her case. This Tribunal vide order dated 13.02.2017 directed the respondents to consider the representations and pass an appropriate order regarding extension of in-situ promotion. In compliance of the orders of this Tribunal, the respondents vide order dated 17.4.2017 had rejected the request of the applicant.
3. The present OA has been filed challenging the order of the respondents dated 17.4.2017 vide which her request has been rejected.
4. The facts of the case as pleaded by the applicant in her pleadings, are as follows:
a) She was appointed as a Biochemist on 23.12.2004 in the 2nd respondent Institute. Her pay was fixed in the pay scale of Rs.8000-275-13500.
b) The Applicant was having M.SC., degree with 5 years teaching experience while joining the institute as Biochemist. Later she received 4 OA.No.480/2018/CAT/Bangalore Bench her doctorate i.e. PhD. degree as an external candidate after getting permission from the Institute and by using the same laboratory without availing study leave. The Doctorate degree was awarded to her in the year 2013.
c) The National Institute of Unani Medicine Bangalore, is an Autonomous Institution, established by the 1st Respondent with the object of promoting the growth and development of Unani Medicine, to produce post-graduates in Unani Medicine, and to undertake Research on different branches of Unani System of Medicine.
d) This is an institution of National Importance, in the field of Unani Medicine, on par with All Indian Institute of Medical Sciences. Both the institutions were under the control of the 1st respondent that is Ministry of Health and Family Welfare. Later in November 2014, separate Ministry of AYUSH was established with by and large the same provisions for Recruitments and Promotions. Both the institutions have the posts of a Biochemist. The RR Rules of AlIMS, provide for promotional avenues from the cadre of Biochemist, to the next higher cadre of Senior Biochemist, etc. In the National Institute of Siddha, Chennai, which is also under the administrative control of the 1st respondent, provisions have been made under the C & R Rules, for appointment of Assistant Professor, Bio-Chemistry, with pay grade of 6600/- for the integrative approach towards development of the Siddha system.5
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e) The Applicant has served the institution on regular service for more than 13 years. She has established the Biochemistry Laboratory with the latest equipment and technology. She has contributed both in teaching and research work of the Institute. She is entitled for promotion to an appropriate teaching cadre of Asst. Professor/ Professor with due recognition of her additional teaching services to the institute without extra monetary benefit. Her experience may be further utilized for teaching and guiding the students of MD/MS in Unani Medicine for integrative approach.
f) The 1st respondent vide an order dated 2/3 September 2008, extended the Department of Health (Group A Gazetted Non-Medical Scientific and Technical Posts) In-Situ promotion rules 1990 dated 28.11.1990 to three Central Research Councils, i.e., Central Council for Research in Ayurveda and Siddha (CCRAS), the Central Council for Research in Unani Medicine (CCRUM) and Central Council for Research in Homoeopathy (CCHR) under the Ministry of AYUSH who are engaged in Research work.
g) These rules have not been extended to 2nd respondent (NIUM), though NIUM is also involved in teaching and research work of Unani Medicine, under the administrative control of the 1st respondent.
h) The Applicant submits that though her nature of work involves teaching and research under Non-medical Scientific field, the In-situ Promotion scheme has not been made applicable to the said post. The 6 OA.No.480/2018/CAT/Bangalore Bench C & R rules, of the 2nd respondent institution also do not provide for any promotional avenue from the cadre of Biochemist.
i) The Applicant submitted representation enclosing a copy of the order dated 13.02.2017 of this Tribunal. Now, by order dated 17.04.2017, the 1st respondent has rejected the claim of the Applicant for extending the benefit of In-situ promotion, on the following grounds:
i. The said promotion scheme is applicable only to Research Council Employees.
ii. The NIUM being an autonomous body is governed by its own bye laws and not by the Research Council Rules & Regulations.
iii. The Recruitment Rules for the post of Biochemist in NIUM does not specify the post as a scientific post and the applicant having not been assigned any research activities, is not eligible for In-situ promotion.
j) The Applicant once again made representation, bringing it to the notice of the 1st respondent that she is entitled for the benefit of promotion under the In-situ scheme on the grounds that the Government Order dated 22.09.1994 specifically includes the post of Biochemist as a Scientific post; that NIUM is an Apex Institute of Post Graduate Teaching, Training and Research in Unani System of Medicine and was established with an objective of undertaking Research at different branches; that the applicant has been involved in Research activities by 7 OA.No.480/2018/CAT/Bangalore Bench means of guiding and validating the Laboratory Research work in Biochemical Analysis for the students of M.D./M.S. and the applicant also holds a PhD in the Unani System of Medicine for the efficacy of Unani drugs, regimen, prevention and intervention during and after trial.
k) On 23.06.2017 she was issued with a memorandum that making such representations, requests, repeatedly for grant/implementing In-situ promotion, would be viewed seriously, as the competent authority has conveyed its displeasure for the same. The Applicant submits that again on 11.09.2017 she submitted representation followed by another representation on 22.12.2017.
l) Now, by the impugned order, No.13015/14/2017-NI (NIUM) dated 17.01.2018 the 1st respondent directed that the matter has already been examined in the Ministry and disposed of on 17.04.2017 and as such the requests have been considered confirming the earlier order dated 17.04.2017. The 3rd respondent has issued the impugned Order, No.2-
58/04-05 NIUM/B'lore/ESTT/5010, dated 29.01.2018 intimating the decision of the 1st respondent. Being aggrieved, the applicant has preferred this O.A.
5. The respondents have filed their written statement wherein they have averred as follows:
a) The 2nd respondent is an Autonomous Body registered under the Karnataka Societies Registration Act, 1960 and governed by the Govt. 8
OA.No.480/2018/CAT/Bangalore Bench of India Ministry of AYUSH. The 2nd respondent is notified under Sec. 14(2) of the Administrative Tribunals Act, 1985 for the purpose of jurisdiction U/Sec.14.
b) The applicant joined the 2nd respondent institute as Biochemist on 23.12.2004 in the pay scale of Rs.8000-275- 13500 (Group-A).
c) The Ministry of Health and Family Welfare, Department of AYUSH vide memorandum dated 2/3rd Sept. 2008 extended the promotion scheme namely Department of Health (Group-A Gazetted non-medical scientific and technical posts) In-Situ Promotion Rules 1990 to Medical Doctors and non-medical scientists in the three Central Research Councils namely CCRAS, CCRUM and CCRH under the Department of AYUSH. The said Memorandum is subsequently modified vide Memorandum dated 03.3.2009 (Annexure-A11 and A12).
d) The applicant in the year 2015 submitted a representation to extend in-
situ promotion to her in the light of Annexure-A11 and A12 vide her representation dated 25.2.2015 and 18.8.2015. This Tribunal vide order dated 13.2.2017 passed in OA.No.256/2016, directed the 1st respondent to consider the representation and pass appropriate orders regarding the extension of in-situ promotion. In compliance of the orders of this Tribunal dated 13.2.2017, the 1st respondent vide order dated 17.4.2017 rejected the request of the applicant on the ground that the applicant is not entitled for in-situ promotion under the existing rules. 9
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e) In spite of the issuance of the order dated 17.4.2017, the applicant went on making representation which was also considered by the competent authority and passed appropriate orders thereon. In this circumstances, the applicant has approached this Tribunal with this application.
f) The applicant did her Ph.D. on her own through distant education mode, which was not in the interest of the institute and as such was not eligible for study leave.
g) The averment made by the applicant that she has contributed both in teaching and research work of the institute is not accepted, as she has not been appointed as a teaching faculty member but only as Biochemist. She is therefore, not eligible for promotion to an appropriate teaching cadre of Assistant Professor/Professor etc.
h) The claim of the applicant that she should be promoted as Associate Professor/Professor is not at all justified, as the post of Biochemist is an isolated post and there is no promotional post available to her for promotion in the teaching cadre. Due to this fact, the Government has extended the benefit of MACP scheme to such post. Incidentally, the applicant has already been sanctioned the 1st MACP scheme benefits from the date of completion of 10 years of service i.e. w.e.f. 10.01.2015.
i) The applicant is not at all teaching to the PG students or involved in research activities. She was asked to take the class of PG students during the period 2007-08 to 2010-11, since her workload was very 10 OA.No.480/2018/CAT/Bangalore Bench much less, as the number of tests daily done in the laboratory was not more than 100. Her spare time was used in the interest of the institute to handle the class for PG students instead of allowing her to sit idle.
j) As per point No.36 Bye Laws of the institute, employees of the institute are whole time servants. The said rules depicts as follows.
"Unless otherwise provided, the whole-time of an employee of the Institute shall be at the disposal of the Institute and he may be employed in any manner required by the proper authority of the Institute without any claim for additional remuneration".
k) Accordingly, she was entrusted the work of teaching in the absence of required workload to her. From the year 2011 onwards, no class have been given to her, as separate teachers have been engaged to teach the subjects namely Shri. Ravi Kumar H. and Shri. Hidyayathulla.
l) The 1st respondent has introduced a scheme called in-situ promotion from 1990 as per Annexure A-11 to the O.A. The said annexure clearly specifies that the scheme is applicable only to the medical and non- medical scientists engaged purely in research in the three research institutions i.e. the CCRUM, CCRAS, and the CCRH. The said scheme is not at all applicable to other National Institutes under the respondents, as these institutes are not exclusively engaged in research activities.
m) The averments of the applicant is completely misleading one, as her nature of work does not involve teaching and research activities. The 11 OA.No.480/2018/CAT/Bangalore Bench post of Biochemist at NIUM is an isolated one. As such, the benefit of MACP has been extended to her also as applicable to all other eligible employees of the Institute.
n) The C & R Rules for NIUM employees do not specify the post of Biochemist as scientific one, the applicability of in-situ promotion cannot be implemented at NIUM.
o) The Unani teaching faculty employed in the institute are also not involved in any research activities except teaching the students in doing their research activities. It is a false statement that she is guiding and validating the lab research work for the students of MD/MS/Ph.D in Unani. Based on the research activities conducted by the students, giving LAB report on it does not constitute research activities.
p) As none of the employees including the teaching faculty are eligible for in-situ promotion, the applicant cannot demand the same which is totally against the laid down procedure.
6. Heard learned counsels for the parties and perused the pleadings made by them.
7. In the present case, the applicant is seeking grant of in-situ promotion benefits to her under the In-situ Promotion Rules, 1990 notified by Ministry of Health and Family Welfare, Department of AYUSH, vide OM dated 2nd and 3rd September, 2008. The scheme which was applicable to only the notified posts under these rules was extended to Medical and non-medical scientists engaged purely in research work in the Central Council for 12 OA.No.480/2018/CAT/Bangalore Bench Research in Ayurveda and Siddha (CCRAS), the Central Council for Research in Unani Medicine (CCRUM) and the Central Council for Research in Homeopathy (CCRH). All these councils are autonomous bodies under the Department of AYUSH.
8. The applicant is seeking extension of the scheme to the post held by her i.e, the post of Biochemist in NIUM, on the ground that she is also a scientist conducting research work in Unani medicine and is, therefore, entitled to be covered under the scheme. She has also pleaded that in the current post, she does not have any further avenues of promotion as a Biochemist in the organisation.
9. The respondents on the other hand, have rejected her representations on the ground that she is not involved in any research work. Moreover, the in-situ promotion scheme is not applicable to the NIUM. She is not involved in any teaching work and hence, the request for grant of in-situ promotion benefit cannot be accepted.
10. A perusal of the rules and regulations of the National Institute of Unani Medicine, Bangalore clearly indicate that the main objects for which the National Institute of Unani Medicine is established are as follows:
i) To promote the growth and development of Unani Medicine in the country;
ii) To produce graduates and post-graduates of the Unani Medicine; 13
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iii) To undertake research on different branches and to provide and assist in providing services and facilities for research, evaluation, education training, consultation and guidance in respect of Unani Medicine;
iv) To provide medical relief through Unani Medicine to the suffering Humanity on 'No profit no Loss' basis;
v) To conduct experiments and develop patterns of teaching in under graduate and graduate education post in all branches of the Unani Medicine;
vi) To conduct refresher courses for Unani under graduate and post graduate teachers;
11. The Institute has a Governing Body. As per Rule 17(i) of the rules of NIUM the Governing Body has full powers to make such by-laws as it thinks essential for the regulations of the business of the Institute and, in particular with reference to (i) the keeping of account (ii) the preparation and sanction of budget estimates (iii) the sanctioning of expenditure (iv) entering into contracts (v) the appointment of staff and determination of their conditions of service and (vi) any other purpose that may be necessary."
12. As per Rule 33 (b) of National Institute of Unani Medicine By-Laws, the provisions relating to the recruitment and appointment of staff from time to time is as under:
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OA.No.480/2018/CAT/Bangalore Bench "Recruitment, appointment and promotion to all posts shall be made according to the National Institute of Unani Medicine Service Rules as laid down by the Governing Body and also as per guidelines/ orders/rules of the Govt. of India issued from time to time. Selection shall be made through the Selection Committee/ Departmental Promotion Committee as specified in the NIUM Service Rules."
13. From the above provisions it is apparent that it is for the Governing Body to formulate rules concerning conditions of service applicable to the employees of NIUM after following the guidelines and rules of Government of India issued from time to time. The OM issued by Government of India dated 2/3rd September, 2008 provides for extension of in-situ promotion Rule 1990 to only the three Central Councils which are engaged exclusively in Research i.e., CCRAS, CCRUM & CCRH. Government of India has not extended this scheme to any of the other Institutes under the AYUSH, including the NIUM. The Governing body of NIUM has also not formulated any scheme for in-situ promotion of its staff as provided for in the 1990 in- situ promotion rules.
14. A perusal of the Memorandum of NIUM indicate that it has many responsibilities which include providing treatment through Unani Medicine, teaching the Graduates and Post Graduates students of Unani Medicine, and to promote the growth and development of Unani Medicine in the Country.
15. From a perusal of these objects for which NIUM has been established, it is clear that it is not an exclusive body for research only and it is required to undertake many other functions relating to medical treatment through Unani 15 OA.No.480/2018/CAT/Bangalore Bench Medicine, unlike the Central Council for Research in Unani Medicine (CCRUM), which has been set up for exclusive research in the field of Unani Medicine. Hence, it cannot be considered that the work being done by NIUM is identical to the work undertaken by CCUM.
16. The in-situ promotion scheme has been extended by the respondents to scientists engaged in exclusive research work in CCUM only. It cannot therefore, be made automatically applicable to the posts in NIUM, on the grounds that both institutions are engaged in undertaking similar activities. The NIUM as an institution, as well as the posts within NIUM are distinct from the CCUM and the posts within the CCUM. These cannot be considered as belonging to the same class/posts.
17. As far as the plea of the applicant to consider the post of biochemist as a scientific post is concerned, there is no doubt that keeping in view the qualifications prescribed for the post, as well as the nature of the work of the applicant, the functions/ work being undertaken by the applicant is technical in nature. However, the post held by her as Biochemist in the NIUM has not been notified as that of a scientist under the 1990 In-Situ Promotion Rules. The list of posts which are covered under these rules are specifically listed in Annexure II of these Rules, and the specific institutions covered under these rules are also listed in Annexure III of these Rules. The NIUM has not been notified as an institution covered under these rules.
18. The respondents have also categorically stated that the applicant is not engaged in any research work or teaching duties, and the post held by her is not categorized as that of a scientist.
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19. Accordingly, the plea of the applicant seeking parity with the scientists engaged in research work in the CCUM, for the purpose of coverage under in-situ promotion scheme cannot be countenanced.
20. Keeping the above points in view, the OA does not have any merit and is liable to be dismissed. It is accordingly dismissed. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S SUJATHA)
MEMBER (A) MEMBER (J)
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