Central Administrative Tribunal - Delhi
Shri Arvind Cairae vs Union Of India : Through on 25 August, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.767/2009 New Delhi, this the 25th day of August, 2011 BENCH: HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) 1. Shri Arvind Cairae, S/o Late Shri M.P. Cairae, 2. Shri Kuldeep Sharma, S/o Late Shri Gopal Krishna Sharma Both are C/o National Sample Survey Organization, Ministry of Statistic & PI, Govt. of India, D P D Division, Pushpa Bhawan, New Delhi 3. Shri Md. Ali Asgar Mondal, S/o Late Shri Ishaque Mondal 4. Shri Ravi Shankar Mishra, S/o Shri Shashi Bhushan Mishra 5. Shri Subhangsu Ghosh, S/o Late Shri Harendra Nath Ghosh 6. Shri Rabi Rawat, S/o Shri Shyam Lal Rawat 7. Shri Subrata Bhattacharyya, S/o Shri Jitendra Nath Bhattacharyya 8. Shri Ashis Kumar Das, S/o Late Sadananda Das 9. Shri Soumendra Kr. Mohanty S/o Shri Lingaraj Mohanty 10. Shri Anurag Kr. Sinha, S/o Late B.P. Sinha 11. Shri Dharmendra Maharana S/o Late Murli Maharana 12. Shri Krishna Chandra Basak, S/o Shri Sunil Basak 13. Shri Sukirti Tirkey S/o Shri Erus Tirkey 14. Shri Kiran Kumar Ekka S/o Shri Birsen Benjamine Ekka 15. Shri Debasish Kar S/o Shri Amalendu Kar 16. Shri Somenath Chatterjee, S/o Shri Sourendra Nath Chatterjee 17. Shri Subrata Roy S/o Shri Dwipendra Narayan Roy 18. Shri Jagabandhu Biswas S/o Kate Sumanta Biswas 19. Shri Sabyasachi Ghosh S/o Shri Narayan Chandra Ghosh 20. Shri Pradip Ch. Mandal, S/o Shri Pasresh Chandra Mondal 21. Shri Kuldeep Minj S/o Late ASjit Kumar Minj 22. Shri Smarajit Das, S/o Shri Sukumar Das 23. Shri Mrinal Kanti Nandi S/o Late Mrityunjoy Nandi 24. Shri Sumit Kunda Das S/o Shri Subash Chandra Kunda Das 25. Shri Dipesh Gangopadhyay S/o Shri Dilip Kumar Gangopadhyay 26. Shri Subhadip Basu S/o Shri Tapan Basu 27. Shri Arpan Majumder S/o Shri Subimal Kanti Majumdasr 28. Shri Chandra Sekhar Mahapatra S/o Shri Satyanarayan Mahapatra 29. Shri Argha Sarkar S/o Shri Sudhangshu Kumar Sarkar All C/o National Sample Survey Organisation, Ministry of Statistic & PI, Govt. of India, D P Division (HQ), Mahalanobis Bhawan, 164, G L T Road, Kolkata-700 108 30. Shri Uttam Das S/o Late Shri Monotosh Ch Das C/o National Sample Survey Organisation, Ministry of Statistic & PI, Survey Design & Research Division, Govt. of India, Mahalanobos Bhavan, 164, G L T Road, Kolkata-700 108 .Applicants (By Advocate: Shri Pramod Kumar Sharma) Versus Union of India : Through 1. The Secretary, Ministry of Statistics & Programme Implementation, Government of India, Sardar Patel Bhavan, Sansad Marg, New Delhi 110 001 2. The Additional Director General, Head of the Department of Data Processing Division, National Sample Survey Organization, Mahalanobos Bhavan, 164, G L T Road, Kolkata-700 108 3. The Additional Director General, Survey Design & Research Division, Mahalanobos Bhavan, 164, G L T Road, Kolkata-700 108 4. The Secretary, Department of Personnel & Training, Government of India, North Block, New Delhi 110 001 Respondents (By Advocate: Shri Amit Anand) O R D E R
By Dr. Veena Chhotray:
OA 767/2009 is being considered afresh in pursuance of Delhi High Courts order dated 27.9.2010 in the Writ Petition (C) No.5370/2010. By this order, the Tribunals order dated 17.11.2009 allowing the OA has been set aside and restoring the OA, it has been remanded for fresh adjudication by the Tribunal.
2.1 The applicants are working as Data Processing Assistants Grade III & II employed in the Data Processing Division (DPD) and Survey Design & Research Division (SDRD) of the National Sample Survey Organization (NSSO) under the Ministry of Statistics and Programme Implementation, Govt. of India. Through this OA, third in the series, they are seeking absorption into the Subordinate Statistical Service (SSS) with effect from the date of inception. Challenging the respondents Office Memorandum dated 15.10.2008, passed in pursuance of the directions in the OA 812/2007 and rejecting the claims again, the instant OA seeks the following reliefs:-
8 a. This Honble Tribunal be pleased to direct the Respondents to issue the offer of option to the Applicants to be absorbed into the Subordinate Statistical Service as they absorbed in case of the employees of Field Operations Division working under the same organization i.e. National Sample Survey Organization i.e Respondent no.3 where the present applicants are also working w.e.f. date of inception of Subordinate Statistical Service.
Besides award of costs and passing any proper order under the facts and circumstances has been prayed.
2.2 As stated above, this is the third OA filed by the applicants. The first OA was No.1591/2006 with a grievance that the respondents had not considered the representations preferred by them regarding giving the opportunity to exercise or get option forms for absorption into the Subordinate Statistical Service. The OA was disposed in limine with a direction for disposing the pending representation by a speaking and a detailed order. In pursuance, O.M. dated 17.1.2007 was passed disposing the representation but rejecting the claims of the applicants. On a challenge to this order, the second OA No.812/2007 got decided vide the Tribunals Order dated 16.7.2008 again with a direction to the respondents to re-examine the claim of the applicants for induction in SSS and reconsider it in the light of similar treatment accorded to Sr. Investigators. This was to culminate into a reasoned order. Resultantly, the matter was reconsidered and a detailed order passed vide the O.M. dated 15.10.2008. The view reiterated was that the applicants do not fulfill the condition prescribed for inclusion in the feeder grade of Subordinate Statistical service at par with the erstwhile Senior Investigators in D/o Expenditure and D/o Public Enterprises. Therefore, the question of offering option for absorption in the Subordinate Statistical Service does not arise.
This is the impugned order in the present OA. While remanding the matter the Honble High Court has directed for dealing with the reasoning given in this order rejecting the claim. Besides it has been opined that merely the fact of a recommendation by an Expert Committee would not suffice to establish a claim, what was also needed was a consideration of the reasons for the view finally taken by the Government.
2.3 At the time of the consideration of the Writ Petition (C) 5370/2010, the Association of Statistical Service Officers Group B had sought impleadment through the CM No.12985/2010 on the ground that its employees had been adversely affected by the impugned order of the Tribunal. The application was disposed observing that it would be open to the Association to seek intervention before the Tribunal. In spite of opportunity being granted, the Association, however, has not impleaded itself.
3. To appreciate the issues in proper perspective, a brief introduction about the NSSO, the functional role of the Divisions to which the applicants belong vis-`-vis the Division which is the recipient of the benefits being claimed, and the Subordinate Statistical service would be appropriate.
NSSO: Initiated the 1950 as National Sample Survey (NSS) for a nation wide continuous survey operation to fill up data gaps for socio-economic planning; it was recognized in the year 1970 as National Sample Survey Organization. The NSSO comprises of four internal Divisions i.e. Survey Design & Research Division (SDRD), Field Operations Division (FOD), Data Processing Division (DPD) and Coordination & Publication Division (CPD).
The applicants before us are from the SDRD and the DPD. The claims they are agitating are to be treated on similar basis as those of the FOD. While the Field Operations Division is entrusted with the actual collection of statistical data; the Survey Design & Research Division is engaged in pre-field survey work and the Data Processing Division the post field survey work and providing IT solutions for processing the collected data. The detailed functions of these Divisions as enlisted in para 4.3 of the OA and supported by Annex. A/3 have been responded to as matter of record by the Respondents in their Counter Reply.
The Survey Design & Research Division, located at Calcutta, is stated to be responsible for planning the survey, formulating sampling designs, formulating concepts and definitions, drawing survey schedules, writing of instructions, preparations of validation and tabulation prgrammes, finalizing survey results, release of reports and providing technical guidance on sampling techniques to various official agencies.
The Field Operations Division (FOD) has its Headquarters at New Delhi and Agricultural Wing at Faridabad. Its functions are collection of data through various surveys, Annual Survey of Industries, Socio-economic Surveys, Price collection surveys, follow up surveys of Economic censures; updating blocks of Urban Frame Survey; sample check on area enumeration and crop cutting experiments, Providing technical guidance to the States for improvement of crop statistics and providing in-service training to NSSO officials.
The Data Processing Division (DPD) has its Headquarters at Calcutta. Its responsibility is said to provide complete IT solution from sample collection, software development to processing and tabulation of data canvassed through various socio-economic surveys of the NSSO. Its main functions include Maintenance of Sampling Frame and updation of Urban Frame Survey database;
Selection of samples and preparation of sample list for conducting socio-economic survey;
Preparation of data Processing Training Manual and Organizing Data Processing Training Workshops.
Receipt of schedules from field and their checking vis-`-vis sample;
Hot Scrutiny of filled-in schedules is undertaken during the initial period of the survey for obtaining first hand knowledge of the quality of survey operation as well as for finalization of data processing system taking into consideration the field reality;
Manual checking of identification particulars and extensive scrutiny of schedules before taking an input, properly known as per data input scrutiny;
Input of statistical information i.e. data transcriptions and verification of filled in schedules;
Validation of data through various stages covering both content check and coverage check, for which in-house validation packages;
Organization of scrutiny feedback workshops in collaboration with SDRD and FOD;
Preparation of director & multiplier files for estimation of parameters;
Tabulation of validated data as per approved tabulation plan for various schedules;
Processing and tabulation of monthly rural retail price schedules and release of quarterly bulletin;
Assistance to state Statistical Bureaus in processing of state sample data through facilities available at various centres of DPD to the States;
Identification of non sampling error;
Transcription for Society-Economic Survey Schedules.
The Subordinate Statistical Service (SSS) was constituted based on the 5th Central Pay Commissions recommendations. The initial order was dated 30.1.2002 grouping 3839 Group B and Group C statistical functions located in 40 Ministries/Departments. It comprised a four tier structure of statistical investigators Grades I, II, III & IV. The Recruitment Rules for Group B and Group C were notified separately on 12.2.2002, with the number of posts increased to 3894. The claims of the applicants are for induction in Group C SSS, comprising of Statistical Investigators Grade III & IV.
A copy of the relevant Notification enclosed as Annex. A/7 reveals that the Controlling Authority of the SSS is the Ministry of Statistics & Programme Implementation (Rule 6). Rule 7 makes clear that the members of the service are either appointed under Rule 8 or Rule 9. Rule 8 dealing with initial constitution of the service prescribes under sub rule (i).
(i) The initial constitution of the Service shall be made from amongst Group C statistical function posts spread over different Ministries / Departments / Organizations of the Government of India, which have been offered for inclusion in the Subordinate Statistical Service. Sub-Rule (ii) contains the modus operandi. The Controlling Authority is to constitute a Selection committee, on the prescribed lines, to determine the suitability of the existing departmental candidates for absorption in Statistical Investigator Grade IV and prepare an order of preference.
However, after the completion of the initial constitution, the future maintenance of the service is to be done as per the detailed methodology prescribed in Rule 9.
A list of participating Ministries / Departments along with the posts included in the service is as per Schedule IV read with Rule 24. However, as averred in Para 4.27 of the OA, the formation of the SSS is an on going process. In support, Annex. A/17 shows an Office Memorandum dated 21.3.2006 including one post of Sr. Technical Assistant in the Soil and Land use Survey Department of Agriculture, amending the 2002 Rules. Besides, another Office Memorandum of the same date encadring 5 posts of Senior Investigators in the Department of Expenditure, Ministry of Finance in the SSS has also been enclosed. The power to decide on inclusion or otherwise of a Group B Statistical function post, in the service after the initial constitution vests in the Controlling Authority (Rule 15 (iii)).
3.3 The applicants are aggrieved that though at one stage (2005-2006) the issue of amalgamating them into the SSS was accepted and circulars issued to ascertain their willingness for merger, subsequently, however, the same was withdrawn (Paras 4.24 & 4.25 with Annex. A/16). No clear factual rebuttal of this averment would be forthcoming as per the counter reply.
4.1 The applicants prime stand is that as they also perform essentially statistical functions, non according of the opportunity for absorption into the SSS to them has been arbitrary. This has been specifically directed qua the Group B and Group C posts holders under the Field Operators Division in the NSSO who got the opportunity for the switchover (Grounds 4.1 and 4.12).
4.2 To establish the validity of their claims, it has been argued that the qualification of Data Processing Assistant is Graduate in Statistics or Mathematics as one of the essential qualifications. Further, in the desirable qualifications along with the computer related training and experience and stipulation as to one years experience in statistical computation has been prescribed. In support, copy of relevant RRs have been enclosed (Annex. A/4).
4.3 As regards the nature of work performed, it is the stand of the applicants that their work mainly relates to application of statistical techniques, involving use of information and communication technologies for giving a meaningful shape to the data being collected through the field survey work. This is described as pre field and post field survey work such as Data Processing Work including Sample selection, Data interpretation, Tabulation and preparation of Statistical Tables and Data Analysis. Besides the detailed work content elaborated in the OA in its initial segments (Para 4.3), a number of other supportive proofs are sought to be relied upon by the applicants.
4.3.1 An advertisement issued by the Staff Selection Commission for recruitment to the posts of Data Processing Assistants in the year 1989 has been referred. As per this advertisement the job requirements of such post holders, besides operation of electronic data processing machines involved scrutiny of statistical data schedules, preparation of statistical tables etc (Para 4.15 read with Annex. A/10).
4.3.2 The clarifications given by the Administrative Ministry to the observations of the Staff Inspection Unit while carrying out the work measurement study have been referred (para 4.14 read with Annex. A/9). Objecting to the stand of the Administrative Ministry about the work of Data Processing Division of the NSSO being highly technical and scientific and hence not amenable to conventional work measurement norms the SIU had observed:
.it has been observed that DPD is a Statistical organization and processed data through its DP Centres and HQ, collected by the Field Operation Division of the NSSO relating to various rounds of surveys. Though Data Processing Division (DPD) deals with the statistical techniques mere application of statistical techniques do not make the work highly technical or scientific. Responding to these observations, the Ministry had acknowledged how through application of statistical techniques and use of Information Technologies. The DPD gave meaningful shape to the data being collected by the National Sample Survey. The highly trouble shooting nature of the work and hence not exactly falling within the confines of the conventional work measurement. Techniques had also been stressed by the Ministry.
4.3.3 Para 4.16 of the OA adverts to the views expressed by the National Statistical Commission. Recognizing that the nature of work carried out by the DPD is similar to that carried out by any statistical establishment, its merger with the proposed SSS had been opined. (However a copy of the relevant documentary proof stated to be annexed as A/11 was found to be a different document).
4.3.4 Para 4.22 has also referred to the report of the expert committee of Govt. of India, Ministry of Planning & Programme Implementation, Department of Statistics, making recommendations in their favour.
4.4 As a related argument, it has been averred that the supervisory Grade A officials of DPD doing the same processing work belong to the Indian Statistical Service, of which the SSS forms the feeder cadre.
4.5 The plea of formation of the SSS being an ongoing process has also been raised. In support, the orders issued in March 2006 regarding enlargement of the cadre by including one post of Sr. Technical Assistant in the Department of Agriculture and five posts of Sr. Investigator in the Department of Expenditure have been enclosed (Para 4.27 of OA/Annex. A/17).
5.1 The respondents stand on the contrary is that the applicants are categorized as Electronic Data Processing Staff and are not treated as statistical staff. Their non-inclusion in the Subordinate Statistical Service, which pertained to all statistical function posts, has been justified on that score. The point sought to be driven home is that the applicants have been treated differently from the purely statistical staff since 1989 onwards. They were given full benefits of the Rationalization of EDP staff as per the Sheshagiri Report, set up in pursuance of the 4th CPC recommendations for all EDP staff in various Ministries and Departments of the Union Government. In support, the Ministry of Finances OM dated 11.9.1989 (Annex R/1), Department of Statistics OM dated 2.7.1990 (Annex A/5 OA) have been referred. Further, based on the directions of the Honble Supreme Court, all the EDP staff in service on 1.1.1986 had been extended the benefits of Sheshagiri Committee Report vide orders dated 16.3.1998 (Annex. R/2) and Order dated 4.8.2000 (Annex A/6 OA).
Based on the OAs filed by the applicants as well as the National Sample Survey Employees Association before the Tribunal, in pursuance of the orders passed by the Calcutta Bench vide the Order dated 8.1.2007 promotional avenues had also been granted to the EDP employees in the DPD and SDRD (R/4). Even after the Vth CPC, the replacement scales specifically recommended for the personnel handling EDP work had been extended to the EDP staff in the DPC. In this context the directions of the Apex Court in H.S. Nimje & Others Vs Union of India & Others (SLP No.18948 of 1995) have also been referred. A copy of the relevant order dated 18.9.2001 by the respondents has been annexed as R/5.
Thus, as per the various benefits granted from time to time for the EDP personnel under the Government of India, the applicants have been covered under them. Their present demand resting on the premise of being treated as statistical functional posts is stated to run contrary to this entire preceding background. Further an averment has been made that if the stand of the concerned service Association was about theirs being statistical functional posts, they should not have agitated for or opted for the benefits of EDP personnel.
5.2 According to the respondents the applicants do not fulfill the prescribed condition for inclusion in the feeder grade of ISS. It is also contended that the inclusion of the EDP personnel may dilute the eligibility for induction in the ISS.
5.3 In the additional affidavit filed by the respondents on 4.5.2011, while reiterating their counter stand, it has been further emphasized: (i) the earlier recognition of the posts in DPD and SDRD as EDP posts and grant of various service benefits as such was with their due consent and without any opposition; hence they could not take a different stand now; (ii) Rebutting the rival contention as regards the Report of the Expert Committee, this is stated to be for a service doing pure statistical function. (iii) EDP is averred to be a non functional post which does only ancillary work to supplement the statistical data and cannot be clubbed with the personnel of SSS engaged in primary statistical work. (iv) It is further argued that accepting the demand would lead to administratively an anomalous situation on multiple counts such as : SSS has 2 pay grades whereas EDP has 3 pay grades; pay grade of DPA Grade I is higher than the existing SSS Grade; on merger DPA Grade-II employees will get promotion in terms of pay scale to which they are not entitled as on date; such an encadrement would result in a vacuum in the feeder cadre of DPA Grade and acute encumbrance in normal functioning of EDP; absorption of Grade-II and III in non-functional grade as it existed on 1.4.2004 would mean serious drop in emoluments and also foregoing of promotions earned in between with affecting recoveries.
Last of all, that creation of posts depends on operational necessity and the EDP staff cannot claim the shift to the SSS as a matter of right.
6. While remanding the case, the Honble High Court has attached special significance to the reasons given by the respondents in their speaking order dated 15.10.2008. Hence, it would be apt to mention in brief these grounds and the rebuttal endeavoured with regard to them in the OA.
6.1 The Tribunal in its order dated 16.7.2008 passed in the OA 812/2007 had referred to two orders encadring Sr. Investigators in the SSS and directed the respondents to reexamine the claim of the applicants in the light of the treatment accorded to the Sr. Investigators. Dealing with this aspect the order deals with the Office Orders dated 21.3.2006 and 5.5.2008 encadring respectively 5 posts of sr. Investigators in the Department of Expenditure and 3 posts of Sr. Investigators in the Department of Public Enterprises (no order dated 5.5.2008 has been produced before us, however, as stated above, there is an Order dated 21.3.2006 dealing with the same subject (Annex. 17 Page 194 of the paper book). Paras 4, 5 and 6 of the order makes a comparative listing of the duties and responsibilities of DPA Grade III and the Senior Investigators in the Department of Expenditure and the D/o Public Enterprises. The conclusion arrived at is that the duties attached to the post of Data Processing Assistants are by and large devoid of statistical functions. Further, it is mentioned that the DEP posts created in the EDP discipline in the D.P. Division are to cater to the needs of the Organization, the main function of which is data processing. Quite distinguishably, the Senior Investigators both in the Department of Expenditure as well as in the Department of Public Enterprises have duties to collect, compile, analyze and tabulate data and related matters, which is a statistical function.
Thus, the view taken is that the applicants are not identically placed with them.
6.2 With a view to validate their stand the respondents have also placed reliance on the Delhi High Court judgment in the case of Shri M.L. Zutshi filed for inclusion in Grade-IV of the ISS. It was held by the Honble High Court that the decision regarding inclusion or otherwise of an employee in a feeder cadre for promotion is exclusively within the domain of the Government. Further taking note of the view held by the expert committee that the applicants in this case were not performing statistical functions agitation of claims for inclusion in the feeder cadre of ISS was not a tenable proposition.
6.3 The decision of Calcutta Bench of the Tribunal has also been referred to where it had been opined that Senior Data Processing Assistants were not entitled to be included in the feeder cadre posts of Indian Statistical Service as their functions were basically different from these dealing statistical side.
6.4 The claims have been negated by considering the different conclusion of the Expert Committee, than the one being canvassed on behalf of the applicants.
6.5 The grant of all the benefits of rationalization of EDP posts in the Data Processing Division of the NSSU vide the OM dated 17.1.2007 has also been mentioned. Conclusively the view taken is that all the posts included in the SSS are statistical function posts as per the recommendation of the 5th CPC. Further, the applicants do not fulfill the prescribed conditions for inclusion in the ISS, nor are they at par with the erstwhile Senior Investigators in the Department of Expenditure and the Department of Public Enterprise.
A number of judicial rulings have also been adduced by the respondents in support of their legal proposition, which have been duly considered byus.
7.1 The OA seeks to rebut these contentions of the respondents. Para 4.21 questions their comparative statement of respective job profile and claims except collection of data, the job profile of applicants is of similar nature to those of the Sr. Investigators in question. As per the applicants, collection of data is not the only criterion of statistical functions, tabulation and compilation are equal criteria too. Further, it is argued that collection of data is in fact a secondary work. The applicants have also questioned the job profiles considered for the purpose as they have ignored DPA-II and mentioned only DPA-III.
7.2 The ground of the Expert Committee arriving at a different conclusion, unfavourable to the claims in the instant OA has also been rebutted.
We understand that the Government is seriously considering setting up a subordinate statistical (SSS), as a feeder for the ISS. This is expected to open up avenues of promotion. We recommend that all field staff and subordinate technical staff in DPD and SDRD other than those involved solely in routine data entry, or, computer operations should be brought under the SSS appropriately. According to our assessment, most of those designated as Data Processing Assistant have nothing much to do with electronic computers. Their main function is to keep track of schedules of enquiry and reconcile computer detected inconsistencies. This work requires statistical skills of a very high order and a wealth of experience, but is definitely not a computer job. It would be desirable to accommodate them in the SSS rather than create a separate computer cadre in the NSSO for their career prospect. A copy of the relevant document has also been annexed as Annex A/15.
The decision of the Honble Delhi High Court in M.L. Zutishis case is stated not to be applicable in the present case as the facts were distinguishable in as much as the same had pertained to induction in the ISS, which is not the case of the applicants.
In respect of the other grounds adduced in the speaking order, the applicants have reiterated their stand.
8.1 We have carefully considered the respective submissions of the learned counsels and perused the material on record. While deciding the issues before applying ourselves to the specific issues arising for adjudication in this OA, we find it apt to briefly sum up the law on the subject. As per the settled law, determination of service conditions of its employees, which include induction in a specific Cadre or Service, is within the legitimate domain of the executive. Even provision of promotional avenues to the employees recognized as a relevant factor for judicial review (though not a Fundamental Right as such) in service jurisprudence is a part of executive function. Any judicial interference can be justified only on ground of patent arbitrariness, discrimination, contravention of Fundamental Rights or not coming clean on the touchstone of fair play and reasonableness; or else it would amount to an exercise of stepping into the shoes of the administrative authorities and overreaching what is within the legitimate purview of judicial review.
Though this aspect has come in for consideration of the superior Courts in a catena of Judgments, we would cite here the observations of the Honble Apex Court only in two cases to illustrate the point. In P.U. Joshi & Ors Vs. Accountant General, Ahmedabad & Ors, (2003) 2 SCC 632, the Apex Court observed as follows:-
..Questions relating to the constitution, pattern, nomenclature of 0posts, cadres, categories, their creation, abolition, prescription of qualifications and other conditions of service including avenues of promotion and criteria to be fulfilled in such promotions pertain to the field of policy within the exclusive discretion and jurisdiction of the State subject of course to the limitations and restrictions envisaged in the Constitution of India. Again in Union of India Vs Pushpa Rani & Ors; (2008) 2 SCC (L&S) 857, the Honble Apex Court observed:
Matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres prescribing the source/mode of recruitment and qualifications, criteria of section, evaluation of service records of employees fall within the exclusive domain of the employer. What steps should be taken for improving the efficiency of the administration is also the preserve of the employer. It was further held:
Power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or vitiated by malafide..
8.2 In view of the aforesaid propositions of law, there can be no two views that the applicants cannot claim any vested or legally enforceable right for induction in the Subordinate Statistical Service. Similarly, competence of the decision in the matter vests quintessentially on the respondents. All that we can consider in judicial review is whether there has been any arbitrariness / discrimination on the part of the respondents or want of adequate consideration of material factors or any other vitiating factor in their impugned decision not favouring the claims of the applicants for induction.
9. The basic stipulation behind the constitution of the Subordinate Statistical Service is to provide a separate Service for the Statistical personnel holding Group B and Group C posts. This is true both from the existing personnel being included under the initial constitution of the Service as well as the new personnel recruited for its further maintenance. Rule 8 dealing with Initial Constitution of the Service of direct relevance in the present context clearly prescribes the basic prerequisite of the personnel being limited only to the statistical function posts. Rule 8 (i) runs as here under:
The Initial Constitution of the Service shall be made from amongst Group C statistical function posts spread over different Ministries / Departments / Organizations of the Government of India, which have been offered for inclusion in the Subordinate Statistical Service. Likewise, for future recruitment, the essential educational qualification prescribed for Direct Recruitment (90% quota) read with Schedule-II is Graduation degree in Statistics or Economics/Mathematics/Commerce (with Statistics as one of the subjects at degree level). Thus the foundational premises of the Subordinate Statistical service is that it must be confined only to the Statistical personnel. As argued on behalf of the applicants, the composition of the Service is an ongoing process; however, this remains subject to the aforesaid essential conditions. While emphasizing this aspect, the respondents have drawn a fine distinction between what they term as pure Statistical Function Posts as distinguished from Incidental Statistical Function Posts.
10. Against the above background, the following specific issues are formulated for our consideration and adjudication:-
Are the functions performed by the applicants essentially/predominantly statistical in character?
Does the grant of benefits to them as EDP personnel pose an impediment in the claimed induction in SSS?
Are the respondents justified in taking the impugned decision of non-inclusion of the applicants in SSS taking into account the views taken by the expert bodies and even admitted by the administrative Ministry at some point of time.
Does the decision of the respondents suffer from any vitiating factor warranting interference in judicial review?
11.1 Varying and mutually conflicting versions have come before us as regards the nature of the functions performed by the applicants. This is quite evident from the averments in the OA to the effect that the personnel of the two Divisions i.e. Survey, Design & Research Division and Data Processing Division are respectively engaged in pre-Filed Survey and post-Field Survey Works, which comprises essentially statistical functions of tabulation and computation of the collected data. It has also been averred that their job comprises application of statistical techniques involving use of information and communication technologies for purposes of giving a meaningful shape to the dates collected through the Filed Survey Work of the NSSO.
The emphasis on the part of the applicants throughout the prolonged course of litigation has been the admission on the part of the respondents about the applicants also performing statistical functions. This would be the tenor of the argument of the learned counsel, Shri P.K. Sharma before us.
11.2 However, the respondents stand is quite different. According to them, the applicants are essentially EDP (Electronic Data Processing) personnel, who do not come within the category of statistical personnel. It is also argued that their jobs cannot be categorized as Statistical Function Posts. While admitting that in course of their duties, they do perform some functions which may be called statistical in nature, it is contended that by this very fact an inference cannot be drawn of the nature of their functions being essentially/predominantly statistical. This stand comes out very clearly from the impugned order, their counter affidavit/reply as well as the additional affidavit filed by the respondents. We have also noted the nature of duties listed in various orders issued by the administrative Ministry from time to time granting service benefits to the applicants as EDP personnel.
11.3 To clarify this point, the respondents were directed to submit a comprehensive and authentic job profile of the applicants. Accordingly they have placed before us a copy of the letter dated 17.8.2011 from the Director, Data Processing Division, Kolkatta addressed to the Joint Secretary of the Ministry enclosing a recently complied job profile. Para 2 of this letter is extracted below:
2. Based on the recommendations of the Mohanan Committee, a restructuring proposal for EDP Cadre is under the consideration of the Ministry of Finance which will provide further promotional avenue to EDP cadre in Group A. Committee has compiled the job profile of different grades which is enclosed herewith for ready reference. It may please be noted that the job profile prescribed vide MOS&PI Order No.A.12018/1/96-Ad. IV dated 16.03.1998 could not be implemented because in compliance to the order of the honourable supreme court of India, all the EDP Officials were placed in Data Processing Stream and no one could be placed in the Data Entry Stream. Till date the Data Entry Stream is inoperative. In the restructuring proposal, only Data Processing Stream has been conceived. The duties and responsibilities of Data Processing Assistant Grade-III and Grade-II (both applicants in the present OA) as well as the Data Processing Assistant Grade-I (the top most rung of the hierarchy in this cadre, though not the applicants in the present OA), are listed as below:
Post: Data Processing Assistant Grade III Duties and Responsibilities All types of data input/data entry/data transcription/typing on computer/creation of inputs/including alpha numeric and graphic data, voice entry, optical entry etc. through any computer terminal, computer system, network based system, either on-line or off-line.
Verification of all types of data entered, including text processing, through any computer terminal or computer system or network based system either on-line or ofline.
Accounting, documentation and maintenance of register/computer files for receipt/dispatch/movements of schedules and computer media like floppy, CD, cartridge, pen drive etc between different section of DPD or outside agencies like FOD, SDRD, CSO, DES etc. and correspondences for any mismatch/discrepancy or reconciliation or any other purpose with those agencies.
Operation of computer for general of outputs based on the system and software flow-chart developed by the organization and despatch of outputs to concerned section/unit for necessary checking/verification/follow-up actions.
Pre-data-entry scrutiny jobs, coverage checking, howler checking, error list checking etc and correspondences with FOD/SDRD/DES, wherever necessary.
On-line or off-line correction/updation of data files through scrutinized schedules or through verified/checked hard copies like coverage list, howler list, error list etc. Data entry/transcription/optical entry of frame (UFS) schedules and maintenance of frame data and necessary correspondence with FOD, SDRD whenever necessary.
Assistance to senior officers in execution of their functions and responsibilities including data back-ups and operation of networks/internets and also its administration.
Any other duties or responsibilities assigned by the superior officers from time to time.
Post Data Processing Assistant Grade II Duties & Responsibilities Allocation of works amongst the DPA Grade III and supervision of those works .
All types of scrutiny of schedules, coverage checking, howler checking, error list checking, etc. and correspondences with FOD/SDRD/DES, whenever necessary.
Corrections/updations of computer data files through the scrutinized schedules or hard copies like coverage list, howler list, error lists etc. either on-line or off-line.
Generation of outputs through computer operations based on flowcharts for the system and software already developed by the organization and distribution of outputs to concerned sections/units/officials for further course of action.
Maintenance and management of schedules and other documents and reconciliation and correspondences with FOD/SDRD/DES whenever necessary.
Maintenance and management of computer back-ups of data files through floppies, cartridges, CDs etc. and maintenance of hardware/software in the section.
Retrieval and transmission of data through networks/internets.
Assistance to senior officers in execution of their functions and responsibilities.
Assistance to senior officers for day to day administrative works of the section.
Any other duties and responsibilities assigned by superior officers from time to time.
Post Data Processing Assistant Grade I Duties and Responsibilities Allocation of works amongst the DPA Grade II in the section and supervision of those works, including training and guidance.
Assistance and support to higher officers in the preparation of scrutiny coverage checking, howler checking and error-list programmes meant for data processing.
Maintenance and administration of hardware and software (including data entry packages and their documentation), and computer stationeries used in the section.
Overall maintenance of data back-ups and transmission/retrieval of data through networks/internet.
Coordination between different sections of the Centre/Division.
Coordination and liaison works with FOD, SDRD, DES and other agencies.
Day-to-day administrative works of the Section.
Any other duties and responsibilities assigned by the senior officers. A perusal of these duties clearly reveals that the duties and responsibilities of the Data Processing Assistants of all rungs cannot be termed as purely/predominantly statistical in nature.
11.4 Coming to the impugned order, the respondents clear stand is that whereas the Senior Investigators of the Department of Expenditure or of the Department of Public Enterprises are engaged in the statistical functions to collect, compile, analyze and tabulate the data and matters relating to the said data, the duties attached to the post of Data Processing Assistants mainly are data processing and are devoid of statistical function by and large.
We find no reason to differ from the aforesaid views of the respondents on the basis of the nature of functions of different posts submitted before us.
12.1 The fact of the applicants having been granted various service benefits subsequent to the 4th Pay Commission, in pursuance of the recommendations of the Sheshagri Committee Report treating them as EDP personnel and the continuation of the same through the 5th Pay Commission and even the 6th Pay Commission is not disputed. Even the fact of the concerned Employees Associations approaching from time to time the judicial for a upto the Apex Court to secure such benefits is an admitted fact. The respondents have enclosed detailed orders in support by which these benefits were granted. In the additional affidavit the respondents have strongly objected to the present claims of the applicant as a volte-face. It has been contended that the applicants who have been treated differently from the pure statistical staff and have been granted various benefits treating them as EDP personnel are now requesting for inclusion in the Statistical Subordinate Service. The learned counsel Shri Amit Anand would describe the stance of the applicants as one having the cake and eating it too. It would also be averred that if the Associations of the EDP Staff were of the opinion that they were handling statistical matters and not EDP matters, they should not have opted/agitated for the service benefits granted by the Ministry while rationalizing the EDP posts in the Government. The learned counsel, Shri Anand would also raise the legal plea of the present claim being barred by the doctrine of estoppal.
12.2 No effective rebuttal of these contentions of the respondents has come forth on behalf of the applicants. Their tenor of argument is onlythat whereas the Sheshagiri committee Report and the other benefits were anterior in time, the constitution of the Subordinate Statistical service was much later. It would also be their stand that both the issues stood on a separate footing and could not be juxtaposed.
12.3 The special benefits granted to the applicants treating them as EDP personnel had its origin in the recommendations of the 4th Central Pay Commission which had requested the Department of Electronics to examine and suggest reorganization of the existing Electronic Data Processing Posts in the various Departments/Ministries/Organizations of the Government and prescribe uniform pay scales and designations. Accordingly, an exercise for rationalization of pay grades and designations was undertaken by the Government and the first order issued was on 11.9.1989 by the Department of Expenditure, as a common guiding order to the efifferent Ministries and Departments for reviewing the matter in respect of posts under their control and issuing specific orders (Annex. R/1). Subsequent to this, orders were issued by the Department of statistics, which had included the posts of which the present applicants are the holders. This trend had continued further by dint of various judicial directions through the 5th Pay Commission and even the 6th Pay Commission.
Thus there is no doubt that as an established background, the applicants have been constantly treated as those belonging to the EDP Cadre and have been in receipt of all the special benefits meant for them. Their present stand agitating totally different claims would be like shifting from the North Pole to the South Pole.
In their Additional affidavit, the respondents have also stated that the inclusion of the EDP personnel in the Subordinate Statistical service would not only dilute the eligibility and character of the induction in the Indian Statistical service (of which the SSS form the feeder cadre), it would also harm the working of the Establishment in toto. It has been stated that for the effective functioning of the Department, it required different cadres which includes the EDP personnel as well as the Statistical personnel. Further, it has been stated that encadrement of DPA-II and DPA-III employees in the SSS shall create a vacuum in the feeder cadre of DPA Grade-I thereby stalling or creating encumbrances in the normal functioning of the EDP. This is stated not to be in the administrative interest of the smooth functioning of the Organization.
We find considerable merit in the contention of the respondents.
12.4 Coming to the third issue regarding the recommendations of the Expert Bodies, the reliance placed by the applicants would not really help the case in view of the settled proposition of law that such recommendations cannot be treated as binding in nature and the competence to take the final decision vests in the concerned administrative authorities. The respondents leaned counsel would make a submission that after due application of mind the respondents had not found such recommendations [incidentally the only effective expert committee recommendations being referred to is a March 1999 Report of a Committee to review the functioning of the National Sample Survey Organization formed by the administrative Ministry] (Annex. A/15) as feasible. It would also be submitted by the learned counsel that the reasons for not accepting these recommendations have been clearly stated by them in their impugned order, counter reply as well as in the additional affidavit.
13.1 Another important aspect is the administrative implications of the present proposal. The respondents in their additional affidavit have spelt them out in no unclear teams. These have also been summed up by us in Para 5.3 above. In course of the hearing, the learned counsel Shri Amit Anand would highlight the fact that the Data Processing Assistants Grade-I who also constituted a rung of the hierarchy were not agitating any claims for induction in the statistical Subordinate Service. He further clarified that this was because their present pay grades are higher than those of the existing SSS grades. This means that even if the demand of the applicants was accepted, it would tantamount to a piecemeal induction of the DPA Cadre. Further some more administrative complications have also been pointed out by the respondents. Not only it would mean claims by the Grade-II employees for promotion in terms of the pay scale to which they would not be entitled but also foregoing of the higher scales already granted to the Grade-II and Grade-III DPAs as on 1.4.2004 and promotions earned in between with resultant recoveries for the personnel of DPA Grade-II and III. A copy of the relevant order would also be produced by the learned counsel.
When confronted with these projections of administratively anomalous scenario, the applicants learned counsel would really have no reply except a submission that the claims were only in respect of the present applicants. Such a contention, particularly in the matter of induction in a different cadre, which has to be treated in an overall perspective is not found to be acceptable.
We find no reason to disagree with the stand of the respondents that while considering the claims of the applicants, the administrative interests of the Organization cannot be relegated to a back seat.
The impugned order has also adverted to the decision of the Honble Delhi High Court in Shri M.L. Zutshis case where it was held:
..It is not for an employee to assert whether his post should or should not be included in the feeder cadre for promotion. That is a matter that is exclusively within the legislative field of the Central Government.. The endeavour on the part of the applicants to treat it as irrelevant on the ground that this had pertained to claims for inclusion in the feeder cadre for the purposes of promotion to Grade IV in the Indian Statistical Service, in our view, would not really affect the aforesaid ratio decidendi pertinent to the basic issue of the present case.
This view is also reinforced by the decision of the Calcutta Bench holding that the Senior Data Processing Assistants were not entitled to be included in the feeder cadre posts of the Indian Statistical Service because their functions were basically different from those who are working on the Statistical side. This decision had been relied upon by the Honble Delhi High Court in Shri M.L. Zutshis case, and has again been referred to by the respondents in support of their stand.
13.2 Some other ancillary grounds taken like the prescribed qualifications for the posts of DPA or their being sent for some training would not really affect the core issue in view of their claims being found untenable on the basic parameters.
14. To conclude, we have reconsidered the issue carefully as per the remand directions of the Honble High Court. For a variety of reasons discussed in the foregoing paragraphs, we have not found the claims in the OA as legally tenable. Resultantly, the OA is found to be devoid of merit and dismissed hereby with no order as to costs.
(DR. VEENA CHHOTRAY) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) /pkr/