Karnataka High Court
Union Of India vs V. Soundararajan on 23 August, 2023
Author: P.S. Dinesh Kumar
Bench: P.S. Dinesh Kumar
W.P. No.8059/2020
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF AUGUST, 2023
PRESENT
THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR
AND
THE HON'BLE MR. JUSTICE T.G. SHIVASHANKARE GOWDA
WRIT PETITION NO.8059 OF 2020 (S-CAT)
BETWEEN:
1. UNION OF INDIA
REPRESENTED BY THE DIRECTOR GENERAL
INDIAN COUNCIL OF FORESTRY
RESEARCH AND EDUCATION
NEW FOREST P.O.
DEHRADUN-248 006
UTTARAKHAND STATE
2. THE SECRETARY
M/O ENVIRONMENT, FORESTS
AND CLIMATE CHANGE
PRITHVI BLOCK - I FLOOR
INDIRA PARYAVARAN BHAVAN
JOR BAGH ROAD
NEW DELHI-110 003.
3. THE SECRETARY
DEPARTMENT OF PERSONNEL & TRAINING
M/O PERSONNEL, PUBLIC GRIEVANCES
AND PENSIONS, NORTH BLOCK
NEW DELHI-110 001. ...PETITIONERS
(BY SHRI. B. PRAMOD, CGC ALONG WITH
SHRI. H. SHANTHI BHUSHAN, DSGI)
W.P. No.8059/2020
2
AND:
V. SOUNDARARAJAN
S/O SRI VELLAICHAMY
AGED ABOUT 46 YEARS
SCIENTIST-C, IT CELL
INSTITUTE OF WOOD SCIENCE
AND TECHNOLOGY, 18TH CROSS
MALLESHWARAM
BENGALURU-560 003 ...RESPONDENT
(BY SHRI. H. KANTARAJA, SENIOR ADVOCATE FOR
SHRI. V.S. VENKATESH GOWDA, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE JUDGMENT
AND ORDER DATED 31.07.2019 PASSED BY THE CENTRAL
ADMINISTRATIVE TRIBUNAL, BANGALORE BENCH IN ORIGINAL
APPLICATION NO.170/00766/2018 VIDE ANNEXURE-A TO THE WP.
THIS WRIT PETITION, HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 08.08.2023, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, P.S. DINESH KUMAR, J., PRONOUNCED THE
FOLLOWING:-
ORDER
This writ petition by the Union of India ('UOI' for short) is directed against order dated 31.07.2019 passed by the CAT1, Bengaluru allowing the application and directing the petitioners to issue necessary orders within three months from the date of the impugned order.
2. We have heard Shri. B. Pramod, learned CGC along with Shri. Shanthi Bhushan, learned Deputy Solicitor 1 Central Administrative Tribunal W.P. No.8059/2020 3 General for UOI and Shri. Kantharaj, learned Senior Advocate for the respondent.
3. Respondent approached the CAT with his application contending inter alia that in response to the Notification issued by the Indian Council for Forestry Research and Education, inviting applications for the post of Scientists-B in different Institutes, he submitted his application. He was appointed as Scientist-B vide order dated 03.04.2004. He was promoted as Scientist-C under FCS2 in 2009. The DoPT3 modified the FCS for all Scientists working in different Ministries and Research Institutes. As per the modified Scheme, Scientists having Masters Degree in Natural Science/Agricultural Science or Bachelors Degree in Engineering, Technology or Medicine were eligible for promotion to higher categories and directed the Ministries to implement the OM4 with effect from 01.01.2011. 2 Flexible Complementary Scheme 3 Department of Personnel & Training 4 Office Memorandum W.P. No.8059/2020 4 Accordingly, the Director General, ICFRE 5 (respondent No.1) brought the new Recruitment Rules in 2011 as per Annexure - A8 describing the educational qualifications. Respondent was due for promotion from Scientist - C to D in 2013, but he was not included in the list of eligible Scientists. He submitted a representation in 2015 and in response the Director General conveyed vide communication dated 04.11.2015(Annexure-A11) to the respondent that his request could not be acceded to. Feeling aggrieved, respondent filed his application before the CAT with following prayers:
"1. To quash the Annexure-A11 dated 04.11.2015 and
2. To modify the Annexure-A16 dated 17.04.2018 so as to include the name of the Applicant in the list of eligible Scientists for promotion from Scientist-C to Scientist-D.
3. The Respondent No.1 may be directed to apply his mind in this case and take necessary actions to promote the Applicant from Scientist C to D as on 01.07.2013 and from D to E as on 01.07.2017 with all financial benefits within three months from the date of receipt of the order of the Hon'ble Tribunal.
5 Indian Council for Forestry Research and Education W.P. No.8059/2020 5
4. The Respondent No.2 may be directed to an appropriate decision on the resolution vide the Annexure-A12 dated 05.02.2016.
5. To invalidate/quash the definition of Scientists and Engineers given by the Respondent No.3 in the Annexure-II of the Annexure-A6 dated 10.09.2010 issued by the Respondent No.3.
6. Any other order/direction to the Respondents in the interest of justice and equity and in the circumstances of this case."
4. The CAT has allowed the application. Feeling aggrieved, the UOI is before this Court.
5. Shri. Pramod, learned CGC, praying to allow this writ petition submitted that:
Petitioner has been appointed as per Annexure-A5 with a specific condition that all terms and conditions of service would be governed by the relevant Rules and orders of the Council in force from time to time;W.P. No.8059/2020
6 The DoPT, vide OM (Annexure-A6), based on the recommendation of the 6th CPC6 suggested certain modifications in the existing FCS for Research and Development Professionals for the Departments of Atomic Energy, Space and DRDO. Based on the said Official Memorandum, the Council adopted the modified FCS proposed by the DoPT with effect from 01.01.2011;
the Rules have been subsequently modified in 2018;
as per the amended Recruitment Rules7, the Scientists and Engineers mentioned in Clause 5.8.3 of the Rules are eligible for consideration of FCS Scheme;
Respondent has approached the CAT after 2018 Rules coming into force. Neither the 2011 Rules nor 2018 Rules have been challenged by the respondent;
6 Sixth Central Pay Commission 7 Indian Council of Forestry Research and Education Group 'A' (Scientific Posts) Rules, 2001 W.P. No.8059/2020 7 If a Scientist/Engineer does not qualify for FCS, he shall be entitled for MACP8.
6. In reply, Shri. Kantharaj, learned Senior Advocate supporting the impugned order submitted that:
based on his qualification, he was appointed in the year 2003 as per the Rules in force at that point of time;
it is not open to the petitioners to amend or alter the Rules which shall have effect on respondent's service conditions, after appointment; respondent having been promoted from Scientist - B to C, issuance of Annexure-A11 is unsustainable in law, as the reason mentioned in the said communication is that the M.Tech (Computer Application) qualification is not covered under the extant Rules/Guidelines laid down by DoPT; Para 2(v) in Appointment Order (Annexure-A5) must be construed to mean that respondent would 8 Modified Assured Carrier Progression W.P. No.8059/2020 8 be governed by only such amendments which would not be detrimental to respondent's interests; after the amendment in 2011, the promotion given to the respondent to the Grade of Scientist-C has not been withdrawn. Thus, petitioners have admitted that respondent is entitled for further promotion; The impugned order is based on a judgment of the Apex Court in Grid Corporation of Orissa & Ors. Vs. Rasanand Das9. Therefore, it does not call for any interference.
7. We have carefully considered the rival contentions and perused the records.
8. Undisputed facts of the case are, respondent has been appointed as per Annexure -A5. Para 2(v) of the appointment letter reads as follows:
"2. xxxxx
(i) xxxxx 9 (2003)10 SCC 297 W.P. No.8059/2020 9
(ii) xxxxx
(iii) xxxxx
(iv) xxxxx
(v) All other terms and conditions of the service will be governed by the relevant rules and orders of this Council in force from time to time."
9. The DoPT, based on the 6th CPC has recommended certain modifications in FCS. The same has been adopted by the ICFRE as per Annexure-A7 with effect from 01.01.2011. The Scientists and Engineers have been described in Clause 5.8.3 and it reads as follows:
"5.8.3 Scientists and Engineers:
Persons, a. Who possess academic qualification of at least Master's degree in Natural/Agricultural Sciences or Bachelor's degree in Engineering/Technology/Medicine; and b. Hold scientific posts as defined above."
10. Admittedly, respondent's qualification is M.Tech (Computer Application). Based on the assessment, he has been promoted from Scientist B to C prior to 2011 Rules coming into force. Rule 5.8.3 of the Rules extracted W.P. No.8059/2020 10 hereinabove, exclude consideration of respondent based on his qualification.
11. The criteria and procedure of assessment for promotion is provided in Rule 6 of the Rules. The assessment is done twice a year. Those who have completed or will complete the residency period in a post during the period of three months before or three months after the 1st January or 1st July, would be considered as on the date for review for promotion to the next higher grade. We may record that as per Rule 6.5 of the Rules, provision has been made for relaxation of the residency period in cases of exceptionally meritorious candidates with all outstanding grading in overall assessment of Annual Work Report.
12. In the OM issued by the DoPT, as per Annexure-A6, it is noted that the 6th CPC has examined merit based Promotion Schemes and observed that various time bound promotion schemes were necessary for Scientific W.P. No.8059/2020 11 Organizations to keep the morale of Scientists high, in order to keep them motivated and to stop the flight of talent from Government Organizations involved in research and scientific activities. Based on CPC's recommendation, the DoPT has suggested the changes and the same has been adopted by the ICFRE.
13. In order to give impetus to the scientific development in the Country, Government of India through DoPT take necessary actions from time to time. It is relevant to note that modifications are pursuant to the recommendation of the 6th CPC. Thus, the amendments have been brought by way of 2011 Rules based on the study and recommendation at various levels in the Government of India. These are all policy matters. It is settled that the Court shall not ordinarily interfere with the policy matters.
14. It is also relevant to note that the Scientists who would not be eligible or qualified for FCS, shall always be entitled for benefit under the MACP Scheme. W.P. No.8059/2020 12
15. It was rightly urged by Shri. Pramod that both 2011 Rules, as also 2018 Rules are not under challenge and the instant application was presented after 2018 Rules coming into force. In the absence of any challenge, the CAT has recorded a finding as follows:
"10. ....... The applicant has an M.Tech in Computer Application and by no stretch of imagination, this can be considered as not being an equivalent qualification prescribed as per the Rules."
16. The above finding by the CAT is unsustainable for more than one reason. Firstly because, it is always for the employer to decide with regard to the qualifications required for accelerated promotions. In this case, the amendments have been brought based on the OM issued by the DoPT and the said OM is based on the recommendation of the 6th CPC. Secondly because, the terms of appointment extracted hereinabove, make it clear that respondent shall be bound by the relevant Rules and order by the Council, 'in force' from 'time to time'. Thirdly because, Court shall not substitute its opinion with that of the policy makers. W.P. No.8059/2020 13
17. The first contention urged by Shri. Kantharaj is that the Rules could not have been amended after appointment. This contention is wholly untenable particularly in view of the condition mentioned in paragraph 2(v) of the Appointment letter (Annexure-A5). The second contention is that respondent was promoted from Scientist - B to C and the same has not been withdrawn by the petitioners. We may record that promotion from Scientist - B to C was based on the assessment and the Rules in force at the material point of time. Hence, this contention also does not merit any consideration.
18. The third contention is that the impugned order is based on the judgment of the Apex Court in the case of Grid Corporation. We have carefully perused the said authority. The issue involved in that case was, the employees on 'work charges basis' in Hirakud Dam Project recruited prior to 01.04.2016 were allowed to continue in the same scale and those employed subsequent to the above date are given pay W.P. No.8059/2020 14 scales applicable to the employees of 'Work Charged Establishments' of the State Government. The State Government terminated the services of those who were working prior to 01.04.2016 and offered them fresh appointments which gave raise to a dispute and in such circumstances, the High Court had held that there was a bar to change the service conditions and that was upheld by the Hon'ble Supreme Court of India. In contradistinction, in the case on hand, we are concerned with promotion to meritorious Scientists based on the amended Rules which are not under challenge. Therefore, the authority relied upon by Shri. Kantharaj does not lend any support to respondent's case.
19. The petitioners have placed reliance on Hardev Singh Vs. UOI and another10, wherein, it is held that it is always open to an employer to change its policy in relation to giving promotion to the employees. Referring to Balco 10 (2011)10 SCC 121 (paras 25 & 26) W.P. No.8059/2020 15 Employees' Union Vs. UOI11, the Apex Court has held that the Court cannot strike down a Policy decision taken by the Government merely because it feels that another policy would have been fairer or wiser or more Scientific or logical. It is not within the domain of the Court to weigh the pros and cons of the policy or to test the degree of its beneficial or equitable disposition.
20. In view of the above, the view taken by the CAT is contrary to the settled position of law and therefore, not sustainable. Resultantly, this petition merits consideration. Hence, the following:
ORDER
(a) Writ petition is allowed.
(b) Order dated 31.07.2019 in O.A. No.170/00766/ 2018 passed by the CAT is quashed. 11 (2002)2 SCC 333 W.P. No.8059/2020 16
(c) O.A. No. 170/00766/2018 on the file of CAT, Bangalore Bench is restored to file.
No costs.
Sd/-
JUDGE Sd/-
JUDGE SPS