Kerala High Court
K.Solaman vs Indian Council Of Agricultural ... on 7 January, 2025
Author: Amit Rawal
Bench: Amit Rawal
2025:KER:2031
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TUESDAY, THE 7TH DAY OF JANUARY 2025 / 17TH POUSHA, 1946
OP (CAT) NO. 153 OF 2019
AGAINST THE ORDER DATED 26.10.2018 IN OA NO.1011 OF 2014 OF
CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH
PETITIONER:
K.SOLAMAN, AGED 59 YEARS
S/O.KUNJAPPAN, (M) 9048109263, TECHNICAL ASSISTANT,
T-1-3(NOW WORKING AS SENIOR TECHNICAL ASSISTANT-T-4 ON
PROMOTION W.E.F.1.1.2017) SOCIO ECONOMIC EVALUATION AND
TECHNOLOGY TRANSFER DIVISION, C.M.F.R.I., KOCHI - 682 018.
BY ADVS.
P.K.MADHUSOODANAN
SRI.P.M.BINOY KRISHNA
RESPONDENTS:
1 INDIAN COUNCIL OF AGRICULTURAL RESEARCH,
REPRESENTED BY ITS SECRETARY, KRISHI BHAVAN,
RAJENDRA PRASAD ROAD, NEW DELHI - 110 114.
2 THE DIRECTOR, CMFRI,
P.B.NO.1603, ERNAKULAM NORTH P.O., KOCHI - 682 018.
BY ADVS.
SRI.P.SANTHOSH KUMAR, SC, ICAR
Bhadra Kumari K.V.
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 07.01.2025, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P(CAT) 153/2019
2
2025:KER:2031
JUDGMENT
K. V. JAYAKUMAR, J The present OP(CAT) was preferred against the order of the Central Administrative Tribunal in O.A.No.1011/2014 dated 26.10.2018, whereby the Central Administrative Tribunal has dismissed the Original Application holding that it was hit by the principle of res-judicata.
2. The facts in brief for the disposal of this OP(CAT) is as follows:
The applicant, K. Solaman, joined the service of the respondents in the year 1988 in Category-I as Field Assistant (T-1) in the group of field/farm technician. He was promoted to T-2 in 01.01.1994 and T-3 in 2004. The Technical Service Rules (TSR) was amended in 2000, 2002 and 2006 bringing about changes in the service conditions. On the introduction of new TSR, all employees were directed to submit an option whether to shift over to the new TSR or opt to remain to be governed by old TSR.
3. The case of the applicant before the Tribunal was that, he submitted an option for old TSR in the year 2006 and accordingly, he was promoted to T-3 Category II under the old TSR. The applicant acquired a O.P(CAT) 153/2019 3 2025:KER:2031 BA degree in Economics in the year 2011. A degree obtained from the recognized University is a pre-condition for promotion to Category-II as per old TSR. The applicant sought promotion on the basis of a decree which he has obtained. Since there was no positive response, the petitioner filed O.A.No.524/2014 which was disposed of by the Central Administrative Tribunal on 21.07.2014 with a direction to issue a speaking order on the representation submitted by the applicant. Thereafter, the applicant received Annexure-A1 order rejecting the request for promotion.
4. In O.A.No.1011/2014, the prayers of the petitioner/applicant were to promote him to Category II in the light of the degree acquired by him and to cancel his option exercised by Annexure- R2(g) and grant all consequential benefits with cancellation. Thereafter, the applicant submitted a representation on 21.12.2013 in the following manner:
"(i) He is a graduate and is eligible to be promoted to Category to T-5 as per Old Technical Service Rules.
(ii) He had worked in T-3 post for more than 4 years and similarly placed persons who got degree while in service were given higher promotion.
(iii) His earlier promotion granted to him in 2004 cannot be cancelled because he had opted for old TSR.
At best it could have been cancelled only from the date on which he had opted for old TSR or date from which he was ordered to be demoted by ICAR whichever is favourable to him."
O.P(CAT) 153/2019 4 2025:KER:2031
5. The Central Administrative Tribunal, after noticing the rival contentions of the parties, rejected the claim of the applicant holding that it was barred by the principle of res-judicata.
6. The learned counsel for the petitioner/applicant submitted that the impugned order of the Central Administrative Tribunal is legally unsustainable.
7. Per contra, the learned counsel for the respondents supported the order of the Central Administrative Tribunal.
8. We have heard the rival submissions of the counsel for the parties. The sole issue arose for our consideration is whether O.A.No.1011/2014 is barred by the principle of res-judicata.
9. Admittedly, the petitioner Sri.Solaman has preferred O.A.No.653/2009 before the Central Administrative Tribunal and which was decided on 15.11.2010. The relevant portion of the judgment in O.A.No.653/2009 is extracted hereunder:
"5. Heard learned counsel for the parties and perused the records produced before us.
6. The applicant is challenging the office order dated 25.5.2009 changing the designation of the Technical staff including the applicant who have opted for Old TSR as T-1-3 instead of T-3. As per office order dated 29.1.2008 (A-11) the designation of the applicant on exercise of his option for Old Technical Service Rules was shown as T-3 (Technical Assistant). As per the revised option the applicant would be governed by the old Technical Service Rules. O.P(CAT) 153/2019 5 2025:KER:2031 Therefore, on submission of the revised option he will be governed by the old TSR and the benefits got under the New TSR will have to be surrendered by him. As per the old TSR, he is eligible for promotion upto T-1-3 in Category-I only and not beyond since he does not possess the minimum qualification of Degree for entry into Category-II.
7. The applicant who was working in category of T-2 Category-I was granted assessment promotion to T-3 in Category-II w.e.f. 1.1.2004 in accordance with the new TSRs in force, by order dated 7.10.2004 (A2). Fresh options within 30 days for opting for either old Technical Service Rules or New Technical Service Rules, were called for by circular dated 19.10.2006 (A-10) much after the assessment promotion was granted to the applicant. It was specified in the endorsement that if they do not submit fresh option within the above period it shall become automatically covered under the New Technical Service Rules. Therefore, it is clear that the applicant had submitted option for Old TSR.
8. The New Technical Service Rules was introduced by letter dated 3.2.2000 and the applicant having not submitted any option he is deemed to have opted for new TSR. To overcome the difficulties arising out of the implementation of the qualifications, etc it was decided to allow opportunity of fresh option to the employees for opting for either the Old or New TSRs. The applicant has opted for the Old TSRs on 30.11.2006.
9. The issue that comes up for consideration is whether the applicant is entitled to opt for the old TSR in response to circular dated 19.10.2006 on one hand and retain the assessment promotion granted to him under the new TSR vide AnnexureA-2 dated 7.10.2004.
xxxxxxxxxx
12. It is in this context that ICAR introduced new TSR and issued R-2 whereby higher qualification of O.P(CAT) 153/2019 6 2025:KER:2031 graduation was made mandatory for those inducted in Category-II and Post Graduation for such entrant in category- II for promotion upto T-6 grade in Category III. Acquisition of higher essential qualification for further promotion and the need to encourage excellence in performance and opportunity for growth for promotees, was elaborated in R-2 for bringing it to the notice of all the staff. ICAR, the 3rd respondent, while notifying the new TSRs on 3.2.2000 at R-1 vide its para 3 called for options from those who want to be governed by the old TSR. The applicant did not give any option. Therefore, the first respondent issued R-4, a list of 197 officials who would be governed by the new TSR w.e.f. 3.2.2000 as they did not opt to continue under the old TSR, which was in force upto 3.2.2000.
13. The main difference between old TSR and new TSR is that as per old TSR a person in T-2 grade who does not possess the required qualification of graduation for entry into category-II is eligible for promotion only upto T-1-3 grade. He will get promotion beyond T-1-3 only if he acquires graduation. However, as per new TSR, a person in T-2 grade with 10 years service can get promotion to T-3 grade in Category-II on the basis of assessment of performance. Therefore, had the applicant opted in 2000 for the old TSR, he could not have been promoted beyond T-1-3. Since he did not opt, he became the beneficiary for promotion to T- 3 grade in Category-II by virtue of 10 years of service, without getting the mandatory educational qualifications of graduation under the new TSR. It is noted above that, only on the request of staff union representatives, after deliberations at the highest level, an opportunity for exercising option in 2006 was permitted. Thousands of personnel all over the country would have availed this opportunity. So any further changes if needed, it has to be taken up by the staff union with the competent authority.
14. We notice that the old 'TSR was in force only till 3.2.2000. In that case, the applicant will be governed by the old TSR and therefore he shall not be entitled to the O.P(CAT) 153/2019 7 2025:KER:2031 assessment promotion granted to him vide order dated 7.10.2004 under the new TSR. Therefore, the applicant having exercised the opportunity of revising the option and elected to opt for the Old TSR, he shall be governed by the Old TSR throughout his career, hence, he has to forgo all the benefits received by him under the new TSR.
15. In this view, we do not find any infirmity in the order at Annexure A12. The O.A lacks merit and accordingly it is dismissed. No costs."
10. The aforementioned order of the Tribunal was assailed before this Court and the same was dismissed.
11. The petitioner/applicant has claimed the following reliefs in the O.A.No.1011/2014.
i) To call for the reads leading to Annexure Al and Quash the same.
ii) To declare that applicant is eligible for promotion to category II in view of his degree secured by him while in service.
iii) To direct the respondents to consider his entire service under respondents and grant further promotion to T5 category, forthwith.
iv) Issue any other order or direction as deemed just, fit and necessary in the facts and circumstances of the case.
v). To direct the respondents to permit the applicant to cancel his option exercised by R2(g) and grant all benefits after such cancellation or in the alternative grant applicant to another chance for re-option and grant benefits due to him.
vi). To direct respondents to grant all benefits due to him pursuant to Annexure A13 order promoting them to the post of T-1-3 with effect from 1/1/2001 after taking into consideration his new option and additional qualification acquired by him during his service and granting promotion to O.P(CAT) 153/2019 8 2025:KER:2031 the post of T6 as is given to similar placed employees under the respondents.
12. On perusal of the order in the former Original Application and the reliefs claimed in the subsequent O.A.No.1011/2014, it is crystal clear that the matter in issue in the former and subsequent Original Applications are substantially the same. An issue which had been finally heard and disposed of by the Central Administrative Tribunal is again agitated by filing another original petition by the petitioner/applicant, which is impermissible in law. The Tribunal noticing all the aforementioned facts has dismissed the original petition.
13. We will be failing in our duty if we do not extract the penultimate portion of the order of the Tribunal.
"9. The Tribunal having gone into the matter in depth had arrived at a conclusion that the applicant having exercised the option for old TSR shall be governed by old TSR throughout his career and he has to forgo all the benefits received by him under the new TSR. This order of the Tribunal had been assailed before the jurisdictional High Court and the same was dismissed as withdrawn. Hence the order in O.A.No.653/2009 is final. This application is hit by the principle of res-judicata as prayer and grounds urged in this O.A have already been considered in a former suit and orders passed by this Tribunal in O.A.No.653/2009 on 15.11.2010 have attained finality. The Tribunal while passing orders in above O.A had ordered that "the applicant having exercised the opportunity of revising the option and elected to opt for the old TSR, he shall be governed by the old TSR throughout his career, hence he has to forgo all the benefits received by him O.P(CAT) 153/2019 9 2025:KER:2031 under the new TSR." Therefore the applicant's prayer for allowing him to re-exercise the option is not admissible in view of the final orders of the Tribunal in O.A.No.653/2009.
10. The O.A is dismissed accordingly. No costs."
14. On perusal of the paper book and upon hearing the submissions of the counsels for the parties, we are of the view that the Tribunal has correctly appreciated the facts, legal principles and circumstances of the case and arrived at a proper conclusion.
15. In the light of the above discussion, we do not find any good ground for interference.
O.P(CAT) No.153/2019 fails and is dismissed.
Sd/-
AMIT RAWAL JUDGE Sd/-
K. V. JAYAKUMAR JUDGE Sbna/ O.P(CAT) 153/2019 10 2025:KER:2031 APPENDIX OF OP (CAT) 153/2019 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE ORDER OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN O.A.NO.180/1011/2014 DATED 26/10/2018. EXHIBIT P2 O.A.NO.180/1011/2014 BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. Annexure A1 TRUE COPY OF OFFICE MEMORANDUM DATED 16/09/2014 OF THE 1ST RESPONDENT.
Annexure A2 TRUE COPY OF APPOINTING ORDER OF THE APPLICANT DATED 25/3/1988 Annexure A3 TRUE COPY OF THE ORDER DATED 2/8/1994 PROMOTED THE APPLICANT AS JUNIOR TECHNICAL ASSISTANT IN T-2 GRADE.
Annexure A4 TRUE COPY OF ORDER DATED 7/10/2004 PROMOTING THE APPLICANT TO T-3 POST FROM 01/01/2004. Annexure A5 TRUE COPY OF THE ORDER DATED 25/5/2009 Annexure A6 TRUE COPY OF THE DEGREE CERTIFICATE ACQUIRED BY THE KERALA UNIVERSITY TO THE APPLICANT Annexure A7 TRUE COPY OF THE LETTER FROM THE APPLICANT FORWARDING THE DEGREE CERTIFICATE TO THE 2ND RESPONDENT.
Annexure A8 TRUE COPY OF THE REPRESENTATION DATED 21.12.2019 Annexure A9 TRUE COPY OF THE ORDER DATED 19/8/2014 Annexure A10 TRUE COPY OF THE ORDER OF THIS HON'BLE TRIBUNAL IN O.A.180/524/14 DATED 21/7/2014 Annexure A11 TRUE COPY OF THE LETTER FROM ICAR TO THE DIRECTORS DATED 1.2.1995.
Annexure A12 TRUE COPY OF THE PROFORMA DATED 18/11/2014 Annexure A13 TRUE COPY OF THE ORDER DATED 18/6/2016 GRANTING MERIT PROMOTION TO THE GRADE OF T-1-3. Annexure A14 TRUE COPY OF THE LETTER DATED 12/1/2006. O.P(CAT) 153/2019 11 2025:KER:2031 Annexure A15 TRUE COPY OF THE DEGREE CERTIFICATE ISSUED BY ANNAMALAI UNIVERSITY IN MAY, 2015.
Annexure A16 TRUE COPY OF THE ORDER OF THE ICAR DATED 2/8/94 Annexure A17 TRUE COPY OF THE ORDER ISSUED BY THE CMFRI DATED 18/6/2016 Annexure A18 TRUE COPY OF THE ORDER OF THE CMFRI DATED 2/3/2017 EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS IN O.A.NO.180/1011 OF 2014. Annexure R2(a) TRUE COPY OF LETTER NO.18(1)/97-EXTN. 1 DATED 3.2.2000 OF THE 1ST RESPONDENT.
Annexure R2(b) TRUE COPY OF LETTER NO.19(10-2004-E-IV DATED 19.10.2006 OF THE 1ST RESPONDENT.
Annexure R2(c) TRUE COPY OF THE ORDER DATED 15.11.2010 IN O.A.NO.653 OF 2009 OF THIS HON'BLE CAT. Annexure R2(d) TRUE COPY OF THE JUDGMENT DATED 7.1.2013 IN O.P. (CAT) NO. 969 OF 2011 OF THE HON'BLE HIGH COURT OF KERALA.
Annexure R2(e) TRUE COPY OF OFFICE ORDER F.NO.15-4/2001- ESTT.
DATED 18.5.2011 OF THE 2ND RESPONDENT. Annexure R2(f) TRUE COPY OF THE OFFICE ORDER F.NO.15/1/2012 ESTT. DATED 6.7.2013 OF THE 2ND RESPONDENT Annexure R2(g) TRUE COPY OF OPTION FORM DATED 30.11.2006 SUBMITTED BY THE APPLICANT.
EXHIBIT P4 TRUE COPY OF THE REJOINDER FILED BY THE APPLICANT IN O.A.NO.180/1011/2014.
EXHIBIT P5 TRUE COPY OF THE REPLY TO THE MISCELLANEOUS APPLICATION FOR AMENDMENT IN THE O.A.FILED BY THE RESPONDENTS.
EXHIBIT P6 TRUE COPY OF THE ORDER IN O.A.NO.92/2012 DATED 31/1/2014 BY THE CO-ORDINATE BENCH OF THE TRIBUNAL.
EXHIBIT P7 TRUE COPY OF THE FILE NOTE OF THE ICAR LEGAL CELL, WHICH OBTAINED UNDER THE RTI ACT. O.P(CAT) 153/2019 12 2025:KER:2031 EXHIBIT P8 TRUE COPY OF THE LETTER DATED 19/8/2016 FROM ICAR.
EXHIBIT P9 TRUE COPY OF OFFICE ORDER NO.F.NO.27(1)/2017- ESTT. DATED 13/11/2017.
Exhibit P10 TRUE COPY OF THE OFFICE ORDER DATED 18.6.2016 PROMOTING THE PETITIONER FROM T-2 TO T-1-3