Central Administrative Tribunal - Ernakulam
P.K. Krishnakutty vs Central Plantation Crops Research ... on 6 August, 2015
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 1128 of 2012
Thursday, this the 6th day of August, 2015
CORAM:
Hon'ble Mr. Justice N.K. Balakrishnan, Judicial Member
Hon'ble Mrs. P. Gopinath, Administrative Member
P.K. Krishnakutty, S/o. P.K. Kandai,
aged 54 years, T2, JTA, CPCRI Head Office,
Kasargod, residing permanently at Padoor House,
Manakody PO, Thrissur. ..... Applicant
(By Advocate : Mr. M.R. Hariraj)
Versus
1. Central Plantation Crops Research Institute,
represented by its Director CPCRI, Kasargod -671 124.
2. Chief Administrative Officer, CPCRI,
Kasargod - 671 124.
3. Director General, ICAR, New Delhi.
4. Secretary, Indian Council for Agricultural Research,
Krishi Bhavan, New Delhi -110 001.
. . . . Respondents
(By Advocate : Mr. Varghese M. Easo)
This application having been heard on 27.7.2015, the Tribunal on
6.8.2015 delivered the following:
ORDER
Hon'ble Mr. Justice N.K. Balakrishnan, Judicial Member Complaining of denial of promotion to the applicant to the grades of Junior Technical Assistant (T-2) and to the higher grade T-1-3 based on his preponement of promotion as Junior Technical Assistant (T-1) this application has been filed.
2. The case of the applicant is stated in brief as follows:
2.1. The applicant commenced service as Lab Attender Grade-I on 27.8.1986. He belongs to SC community. On 23.12.1999 the applicant was superseded. He approached this Tribunal by filing OA 309/2000. It was allowed as per order dated 27.3.2002 directing the respondents to constitute a review DPC. Pursuant thereto the review DPC met on 19.9.2002 and ratified the proceedings of the earlier DPC. More juniors of the applicant came to be promoted by order dated 6.2.2002. Hence, the applicant again filed OA 27/2003. As per order dated 28.4.2006 it was declared that the applicant is entitled to be promoted as T-1, JTA with effect from 25.2.2009 but without arrears of pay and allowances. As evidenced by Annexure A1 that was challenged by the respondents before the High Court but it was dismissed vide Annexure A2. Thereafter, the respondents issued an order granting notional promotion to the applicant to the post of T-1-JTA with effect from 28.12.1999 as evidenced by Annexure A3. During the pendency of the case the applicant was promoted as T-1 by Annexure A4 order dated 1.3.2005. Based on Annexure A4 the applicant was further promoted as T-
2- JTA with effect from 1.4.2010. That promotion was due on completion of 5 years service as T-1, JTA in view of Annexure A5 order dated 10.1.2011. The juniors of the applicant who were promoted as T-1, JTA and JTA on 20.12.1999 were given promotion as T-2, JTA with effect from 27.12.2004 as per Annexure A6 order dated 7.10.2005. On completion of 5 years service as T-2, JTA the applicant is entitled to be considered for further promotion as T-1-3, JTA. For that purpose Annexure A7 representation was given by him on 6.7.2012. The applicant was then informed that his promotion by Annexure A3 was yet to be confirmed by the 3rd respondent and so his Annexure A7 representation cannot be considered. The applicant is entitled to be considered for grant of further promotion with effect from the date of promotion of his juniors. The applicant contends that he is entitled to be promoted as T-2 and T-1-3 with effect from 27.12.2004 and 27.12.2009 respectively. The applicant further seeks direction to the respondents to consider the applicant for promotion as T-2 and T-1-3. The applicant seeks a further direction that the respondents be directed to effect the promotions with all consequential benefits including arrears of pay and allowances with interest.
3. The respondents filed reply statement contending as follows:
3.1. CPCRI i.e. Central Plantation Crops Research Institute, Kasaragod is one of the constituent units of ICAR which is an autonomous organization.
ICAR is the apex body in the Country to co-ordinate agriculture, fisheries, animal husbandry etc. The rules and orders issued by the Ministries/Department of Government of India are mutatis mutandis followed in ICAR. Four categories of employees are working in the ICAR namely, scientific, technical, administration and supporting staff. The recruitment of the employees are made based on the rules framed by the Governing Body of ICAR from time to time. Under the ICAR the Scientists are supported in their work by a large number of technical staff. Promotion scope are available in the Recruitment Rules for qualified skilled supporting staff to the administrative post of Lower Division Clerk and technical post of T-1-Junior Technical Assistant. In order to enable the members of the technical services to give their best to the organization, ICAR introduced from 1.10.1975 new personnel policies for its technical services called TSR. TSR was further modified vide ICAR letter dated 3.2.2000 [Annexure R1(a)]. There exists a separate promotion policy; namely, assessment for the scientific and technical staff working under ICAR. It is decided by a duly constituted assessment committee and the promotion of administrative and supporting staff are decided by the Departmental Promotion Committee. The applicant had only passed SSLC and had typewriting (English lower). He has not acquired any other qualification. As per career promotion system of technical personnel his five years performance in T-1 grade was assessed by the duly constituted assessment committee. The committee recommended his promotion to T-2 grade with effect from 1.4.2010 and it was accepted by the competent authority. Promotion to the next higher grade from T-1 to T-2 is not automatic by mere completion of particular years in a grade. The assessment case of technical personnel is considered by the assessment committee on the basis of the materials furnished in the 5-10 yearly assessment proforma submitted by the concerned applicant, performance record files maintained by the technical personnel, bio-data and career information of the technical personnel through out in their service in the ICAR and CCRs for the past 5/10 years as the case may be. Though the applicant was notionally promoted with effect from 28.12.1999 he started performing the duty of the technical personnel with effect from 1.4.2005 only. As per the Technical Service Rules the service rendered in other categories will not be taken in to consideration for grade promotion under the assessment system. As per the option exercised by the applicant he is governed under the Modified Technical Service Rules
- MTSR. As the applicant does not possess the required qualification for T- 3 grade for direct recruitment he shall become eligible for assessment promotion to T-3 grade only after ten years in T-2 grade. Hence, the applicant is yet to complete 10 years service in T-2 grade for his further promotion to T-3. The applicant was promoted to T-1-Junior Technical Assistant with effect from 28.12.1999 notionally and consequent thereto his pay was enhanced from Rs. 3,090-3,200/- plus other usual allowances. The work performance in supporting category cannot be taken into consideration for assessment promotion to the next higher grade of T-2. According to his performance in T-1 grade, promotion to T-2 grade was awarded with effect from 1.4.2010. Further promotion to T-3 can be considered only after completing ten years in T-2 grade.
4. A rejoinder was filed by the applicant stating that the conditions of the service of the technical staff are governed by the TSR, brought into force with effect from 1.10.1975. The applicant is not governed by the modified TSR. The ICAR had, by order dated 19.10.2006, decided to grant opportunity of fresh option to the employees for opting, either the old TSR or new TSR as evidenced by Annexure A10 dated 19.10.2006. It was communicated to the technical staff by order dated 22.1.2007, vide Annexure A11. Annexure A11 clearly states that old TSR means the rules in existence prior to the date of Annexure R1(a). Pursuant to Annexure A11 the applicant submitted a fresh option (Annexure A12) in the prescribed form as appended to Annexures A10 and A11 opting to be governed by the old TSR. It was communicated to the 1 st respondent as evidenced by Annexure A13. Thus, the applicant is governed by Annexure A9 old TSR. As per paragraph 6.2 of Annexure A9 promotion contemplated shall be from one grade to the next higher grade in respect of occurrence of vacancy in the higher grade or grant of advance increment in the same grade. The person concerned will be eligible for consideration on such or for the grant of advance of increments after the expiry of five years service in the grade. Thus, the applicant who was promoted as T-1-JTA, with effect from 20.12.1999 is entitled to be granted grade promotion to T-2 with effect from 27.12.2004 as he completed five years service in T-1 grade. Paragraph 6.2 states that the employees with five years of service in grade T-2 and not possessing qualification prescribed for entry to category T-2 by direct recruitment will be placed in grade T-1-3 in the event of merit promotion through five yearly assessment. Thus, the applicant on anti-dating of his promotion to T-2 with effect from 27.4.2004 is entitled to be granted promotion to T-1-3 grade with effect from the completion of five years service in T-2 grade. The requirement of ten years service in T-2 grade is applicable only to technical employees who have opted to be governed by new TSR. One Smt. K. Sreedevi Amma was promoted as T-1-3 (Technical Assistant) with effect from 20.1.2007 on completion of five years service in T-2 grade, vide Annexure A14.
5. In the reply to the rejoinder the respondents contended that the chance for submitting revised option in terms of the ICAR letter dated 19.10.2006 was meant for the technical persons who were in technical service of ICAR prior to 3.2.2000 and not to the technical personnel appointed on or after 3.2.2000. The promotion of the applicant from supporting staff to the post of T-1, JTA with effect from 28.12.1999 was on notional basis. Paragraph 3 of ICAR notification No. F.18-1/97-Estt.IV, dated 3.2.2000 clearly states that any existing technical employees who may like to be governed only as per the existing technical service rules may do so by specially exercising an individual option in writing to the Director of the Institute within a period of 30 days from the date of issue of that notification. Hence, his option dated 15.2.2007 (Annexure A12) was not accepted by the competent authority. The applicant is governed by the new TSR and so his next promotional avenue is T-3 in category-II; as the applicant is not possessing the qualification prescribed for T-3 he will be eligible for assessment to T-3 only after ten years of service in T-2 grade. Therefore, the promotion notionally effected retrospectively on 28.12.1999 will not confer on the applicant any right to get promotion to T-3.
6. Heard the learned counsel for the parties. We have also gone through the pleadings and documents produced by the parties.
7. The point for consideration is whether the applicant is entitled to be promoted as T-2-JTA and T-1-3 with effect from 27.12.2004 and 27.12.2009 respectively ?
8. It is vehemently argued by the learned counsel for the applicant that the conditions of service of the technical staff are governed by the Technical Service Rules (Annexure A9) as it stood prior to the coming into force of modified TSR. But the learned Sr. Counsel appearing for the respondents would submit that if the applicant wanted to be governed by Annexure A9 he should have filed his option statement within 30 days from 3.2.2000. The applicant admittedly did not submit the option statement within the prescribed time to allow him to continue under the old TSR. As such the present contention raised by the applicant that he should be governed by the old TSR (Annexure A9) cannot be countenanced at all, the respondents contend. It is further submitted if the applicant is governed by the modified TSR [Annexure R1(a)] then certainly the applicant is not entitled to get promotion to T-3 because admittedly he did not acquire the qualification for the post under direct recruitment and if he is to get promotion as T-3 he can aspire for the same only after ten years of service in T-2 grade.
9. The main thrust of the contention advanced by the learned counsel for the applicant is that the applicant is governed by Annexure A9. It is submitted by the learned counsel that the Council (ICAR) had by order dated 19.10.2006 decided to allow opportunity of filing fresh option to the employees, opting either the old TSR or the new TSR, in support of which Annexure A10 has been pressed in service. It is clear from Annexure A10 dated 19.10.2006 that the ICAR had addressed the Director all the Institutes/NRCs/PDs etc. that in the CJSC meeting held on 26-27 th April, 2006 the staff side requested for allowing of fresh option to the employees of technical category for opting either the old TSR in force prior to 3.2.2000 or new TSRs. Annexure A10 shows that the issue was examined in the Council and it was decided to allow opportunity of fresh option to the employees for opting for either the old TSR or new TSRs. Therefore, in the light of Annexure A10 the applicant submitted an option statement evidenced by Annexure A12 dated 15.2.2007 as per which he opted to be governed by old TSR, with effect from 3.2.2000. It seems that was the form prescribed for submitting the option statement. That option statement was filled up and submitted by the applicant as can be seen from Annexure A12. Since such a decision was taken by the ICAR as evidenced by Annexure A10 and since the applicant had submitted the option statement vide Annexure A12, the respondents cannot now successfully contend that the applicant cannot claim to be governed by Annexure A9 (old TSR).
10. Paragraph 6.2 of Annexure A9 has been pressed into service by the applicant which reads:
'6.2. There shall be a system of merit promotion from one grade to the next higher grade irrespective of occurrence of vacancies in the higher grade or grant of advance increments(s) in the same grade, on the basis of assessment of performance. The person concerned will be eligible for consideration for such promotion or for the grant of advance increment(s) after the expiry of five years service in the grade.' Therefore, according to the applicant since he was promoted as T-1, Junior Technical Assistant with effect from 28.12.1999 he is entitled to be granted the grade promotion to T-2, Junior Technical Assistant with effect from the date from which he completed five years of service in T-1 grade. Thus, the applicant is entitled to get his promotion to T-2 to be reckoned from 27.12.2004. Thus, the applicant contends that he is entitled to be granted promotion to T-1-3 the next stage on completion of five years of service in T-2 grade.
11. The respondents resisted the claim contending that the applicant was governed by the new TSR. True, if the applicant is governed by the new TSR the requirement of ten years service in T-2 grade is applicable in which case the applicant cannot sustain his claim as made in this OA. But in view of the fact as revealed by Annexures A10 and A11 the applicant had submitted his option statement evidenced by Annexure A12 and so it has to be held that he is governed by the old TSR. So much so, the applicant is entitled to get the graded promotion on completion of five years in that grade.
12. The applicant contends that another Technical Assistant namely Smt. K. Sreedevi Amma was granted promotion as T-1-3 with effect from 20.1.2007 on completion of five years of service in T-2 grade. Annexure A14 is that order pertaining to Sreedevi Amma mentioned above. Annexure A14 also refers to Annexures A10 & A11. It is stated that the promotion to T-2 and T-1-3 was given to Smt. Sreedevi Amma based on paragraphs 6.2 and 6.3 referred to earlier and which was read with pre-modified Technical Service Rules of the ICAR read with other guidelines referred to therein. Hence, we are of the considered view that the applicant is entitled to succeed.
13. In the result, this Original Application is allowed declaring that the applicant is entitled to be promoted as T-2 on 27.12.2004. He is entitled to be promoted as T-1-3 on 27.12.2009. Applicant is entitled to get the consequential benefits pursuant to the same. The respondents shall give effect to the same within two months from the date of receipt of a copy of this order. No order as to costs.
(P. GOPINATH) (N.K. BALAKRISHNAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER SA