Central Administrative Tribunal - Jabalpur
S Muthukumar vs Home Affairs on 5 April, 2024
1 OA No.203/745/2022
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
CIRCUIT SITTING : BILASPUR
Original Application No.203/745/2022
Jabalpur, this Friday, the 05th day of April, 2024
HON'BLE MR. JUSTICE AKHIL KUMAR SRIVASTAVA, JUDICIAL MEMBER
HON'BLE MR. KUMAR RAJESH CHANDRA, ADMINISTRATIVE MEMBER
1. S. Muthukumar, S/o Shri Shubhash, aged about 57 years, working as
Pharmacist Grade-II, CRPF Hospital, Arang, R/o B-9, Jeevan Vihar
Colony, Telibandha, Raipur, Distt - Raipur (C.G.) 492001.
2. S. Kaushalya, W/o Shri S. Muthukumar, aged about 55 years, working as
Pharmacist Grade - II, CRPF Hospital, Arang R/o B-9, Jeevan Vihar
Colony, Telibandha, Raipur, Distt - Raipur (C.G.) 492001.
-Applicants
(By Advocate - Shri A.V. Shridhar)
Versus
1. Union of India through the Secretary, Ministry of Home Affairs, North
Block, New Delhi - 110001.
2. Director General (Central Reserve Police Force), CGO Complex, Lodhi
Road, New Delhi - 110001.
3. Director General (Medical Branch), CRPF, East Block - 7, Sector - 7,
R.K. Puran, New Delhi - 110066.
4. Inspector General of Police, CRPF, Chhattisgarh Sector, Sector - 17,
Kayabandha, Atal Nagar, Nava Raipur (C.G.) 492101 -Respondents
(By Advocate - Shri Shaleen Singh Baghel for official respondents and
Shri Himanshu Shrivastava for the intervener)
(Date of reserving order : 11.01.2024)
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2 OA No.203/745/2022
ORDER
By Akhil Kumar Srivastava, JM.-
The applicants are aggrieved that they have been brought down below in the gradation list of SI-Pharma/Pharmacist Grade-II circulated on 14.10.2019 (Annexure A-1).
2. The applicants have sought for the following reliefs:
"8.1 That the learned Tribunal may kindly be pleased to call the entire records pertaining to the case of the applicant.
8.2 That, the Hon'bel Tribunal may kindly be pleased to quash the impugned seniority list dated 14.10.2019 (Annexure A/1) and list dated 05.11.2019 (Annexure A/2) issued for the purposes of convening DPC to the post of SI Pharmacist (combatised)/Pharmacist Grade-I (non combatised). 8.3 That, the Hon'ble Tribunal may kindly be pleased to direct the Respondent Authorities to redraw the integrated seniority list of combatised and non combatised personnel strictly in accordance with the date of initial appointment.
8.4 Cost of the petition be awarded to the applicant.
8.5 Any other relief which the learned Tribunal deems fit and proper may be awarded."
3. Brief facts of the case are that the applicants were initially appointed in CRPF as non combatised Pharmacist on 10.06.1987 and 16.02.1987 respectively. On 19.09.1989, options were called from the personnel appointed in the non combatised sector for being posted/absorbed in the Page 2 of 13 3 OA No.203/745/2022 combatised sector with the stipulation that those who do not opt for combatisation will continue in civilian post until superannuation. 3.1 For combatised personnel, the avenue of promotion was SI Pharmacist to Inspector Pharmacist while the corresponding avenues of promotion for non combatised personnel was Pharmacist Grade-II to Pharmacist Grade -I. 3.2 The combatised personnel were governed under the Central Reserve Police Force Act, 1949 and for the non combatised personnel, CCS (CCA) Rules, 1965 were applicable to them.
3.3 Annexure A-3 is the separate seniority list for combatised and non combatised personnel and the name of the applicants were figured at serial Nos.34 and 28 of the list. However, the respondents have merged the seniority list of SI Pharmacist (combatised) and Pharmacist Grade-II (non combatised), as a result of which, the applicants have been brought down to serial nos.196 and 201 respectively. Now, on the basis of this gradation list, the respondents are in the process of convening DPC for promotion to the post of Inspector Pharmacist and Pharmacist Grade - I. 3.4 The applicants made representation against the said action taken by the respondents. Since no action was taken on their representation, the Page 3 of 13 4 OA No.203/745/2022 applicants approached the Hon'ble High Court of Madhya Pradesh in WP No.1822/2020. On 11.02.2020, the Hon'ble High Court, while issuing notices to the respondents, have directed that the proposed DPC for the promotion to the post of Inspector Pharmacists (Combatised)/Pharmacist Grade-I (Non-Combatised) for the year 2020 shall remain suspended till the next date of hearing. But, later on the said Writ Petition was dismissed on 02.08.2022 (Annexure A-6) as not maintainable before the Hon'ble High Court and liberty was granted to approach this Tribunal.
4. On 29.08.2022, while issuing notices to the respondents, this Tribunal has granted interim protection in favour of the applicants and had directed the respondents to maintain the status-quo. However, this interim relief was subsequently modified on 13.09.2023 to the extent that two posts shall remain vacant qua the applicants in respect of Inspector Pharmacist (Combatised) by promotion of SI Pharmacist (Combatised)/Pharmacist Grade-II (Non Combatised) against the vacancy year 2020, till the final outcome of this Original Application.
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5. An MA No.1453/2022 has been filed for intervention by one Shri Sita Ram Shukla, working as SI/Pharmacist resisting the case of the applicants on the following grounds:
5.1 The Ministry of Home & Affairs vide order dated 19.09.1989 took a policy decision to start recruitment of combatised Pharmacists to strengthen the CRPF troops with combat medical staff/Pharmacists (trained in fighting with weapons). Accordingly, weapons, combatised drill and operational strategic training was started and imparted to all Pharmacist recruited after 1989. An option was also given to all available Civilian Pharmacists to accept for combatisation and to undergo combatisation course with the objective that the combatisation will enable the medical staff to get the status at par with the Force personnel for all purposes. 5.2 Some civilian Pharmacists accepted for combatisation and underwent weapons, combatised drill and operational strategic training and were known as Combatised Pharmacist governed by CRPF Act, 1949 and Rule, 1955 and the officers who did not accept for combatisation continued to govern under CCS (CCA) Rules, 1965. The applicants did not accept for Page 5 of 13 6 OA No.203/745/2022 combatisation under CRPF Act and Rules and expressed to continue to serve as Civilian/Non-Combatised Pharmacists under CCS Rules. 5.3 In the year 1998, some of the officers, who accepted the Combatised/Pharmacist, filed a case before the Hon'ble High Court at Jammu & Kashmir and prayed for parity in ranking of Combatised rank of Pharmacist at par with combatised Pharmacist in Indo-Tibetan Border Police (ITBP) and the said issue was decided in favour of Combatised Pharmacist and also upheld by the Hon'ble Supreme Court. 5.4 The applicants have already denied to opt for combatised post in the year 1989 and now they are claiming seniority over and above the combatised personnel without impleading them party. 5.5 A similar case for separation of seniority list-2015 as well as Recruitment Rule-2011 of combatised and non combatised Pharmacist is pending before the Double Bench of Hon'ble High Court at Delhi in WP(C) No.10346/2019.
6. The respondents have also filed their reply and have also stated that the applicants have not opted for combatisation and remained in the non combatised civilian post of Pharmacist in CRPF. As per the Recruitment Page 6 of 13 7 OA No.203/745/2022 Rules, there are no earmarked separate posts for civilian non combatised Pharmacist and combatised ASI/Pharmacist in CRPF. As such, a common gradation list including combatised and non-combatised Pharmacists of their respective rank and grades is maintained.
6.1 In pursuance to the direction of Hon'ble Apex Court in SLP (C) Nos.15552-15553/2016 dated 16.01.2016, an order dated 19.04.2018 (Annexure R-8) was issued for upgrading eligible ASIs/Pharmacist for granting them rank an pay of SI/Pharmacist in the pay scale of Rs.1400-40- 1800-50-2300 (pre-revised) at par with their counterparts in ITBP. Since eligible combatised ASI/Pharmacist appointed up to 29.03.2004, have been upgraded to SI/Pharmacists as per directives of Hon'ble Apex Court w.e.f. their date of enlistment and they are holding the post of SI/Pharmacist w.e.f. their date of enlistment in combatised post, combined Gradation List of SI/Pharmacist (combatised) and Pharmacist Grade-II (Non combaised) as on 01.10.2019 was prepared by the Board of Officers in accordance with the relevant instructions.
7. The applicants have also filed their rejoinder and have reiterated that they have been made juniors to the combatised personnel who were Page 7 of 13 8 OA No.203/745/2022 appointed in the year 2004, which has resulted into loss of seniority positions and promotional avenues to the applicants.
8. We have heard the learned counsel for the parties and perused the pleadings and the documents available on record.
9. Learned counsel for the applicants argued that in case of merger of cadre of combatised and non combatised personnel, the seniority principle other than the date of initial appointment is discriminatory. He placed reliance on the judgment of Hon'ble High Court of Madras in W.P. No.8361 of 2004 decided on 13.04.2007, wherein it has been held as under:
"13. The Tribunal, relying on the Supreme Court judgment in State of Maharashtra v. Chandrakant Anant Kulkarani , held that the seniority principle stipulated in the impugned notification is unfair to the ministerial cadre of the Department and considering any other date than the date of initial entry into the service as LDC is discriminatory and arbitrary and, accordingly, quashed Rule 5(ii) of STA RR, 2003 and Rule 4(4) of TA RR, 2003. The Tribunal directed the department to apply fair, just and rational principle in determining the seniority while integrating the different cadres and to evolve an acceptable solution. The department was further directed to have a consultation process with the employees representative/association concerned and recast the seniority rule.
xxx xxx xxx
46. We have given our anxious consideration to all the aspects of the case put forth by both sides and found that the Tribunal has analysed the case in a proper perspective and having regard to the guidelines issued by the Apex Court regarding fixation of inter se seniority in such cases and has arrived at an unerring conclusion to hold that the seniority principle stipulated in Page 8 of 13 9 OA No.203/745/2022 the impugned notifications is unfair to the ministerial cadre of the Department and considering any other date than the date of initial appointment is discriminatory and arbitrary. We are unable to find any illegality or irregularity or perversity in approach in the well considered and merited decision arrived at by the Tribunal. Therefore, we see no merit in the contentions raised by the petitioners/Data Entry Operators and the same deserve to be rejected."
10. Learned counsel for the official respondents contended that the seniority list of combatised and non combatised officers has been drawn on the basis of directives of Hon'ble High Court of Jammu and Kashmir at Jammu in LPASW No.228/2002 & MP No.278/2002 decided on 12.08.2015 in favour of the Pharmacist (non-combatised), who were seeking pay parity and ranks as had been given to their counterparts in the ITBP. The decision of the Hon'ble High Court of Jammu and Kashmir has also been upheld by the Hon'ble Apex Court in SLP (C) Nos.15552- 15553/2016 dated 16.01.2018. Hence, the Directorate General (Medical Branch), CRPF, New Delhi had issued an order dated 19.04.2018 (Annexure R-8) thereby mentioning the names of ASIs/Pharmacist enlisted as combatised w.e.f. 17.10.1989 to 28.03.2004 and were granted the rank and pay scale of Sub Inspector/Pharmacist at par with their counterparts in ITBP.
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11. Learned counsel for the intervener brought our attention to the order passed by the Hon'ble High Court of Madhya Pradesh at Jabalpur in Writ Petition No.1822 of 2020 dated 02.08.2022. He averred that while dismissing the Writ Petition on account of maintainability though the Hon'ble High Court has granted liberty to the applicants to approach this Tribunal, but has also discussed the issue in detail and observed that the terms and conditions, service conditions of combatised and non-combatised personnel are totally different.
12. We have given our thoughtful consideration to the entire matter.
13. The issue regarding grant of pay scale and rank at par with the Pharmacists recruited as SI (Pharmacist) in the ITBP, was assailed by the aggrieved ASI (Pharmacists) of CRPF before the Hon'ble High Court of Jammu and Kashmir in Writ Petiton No.186/1998, which had allowed the case in favour of the petitioners therein vide order dated 19.04.2001 (Annexure R-3). Thereafter, the CRPF had filed an LPASW No.228/2002 before the Division Bench of Hon'ble High Court of Jammu and Kashmir and the Division Bench of the Hon'ble High Court had considered the issue extensively and passed the judgment on 12.08.2015 rejecting the appeal Page 10 of 13 11 OA No.203/745/2022 preferred by the CRPF. Subsequently, the Hon'ble Supreme Court has also declined to interfere with the order of the Hon'ble High Court of Jammu and Kashmir and directed the Union of India to implement the judgment of Hon'ble High Court vide order dated 16.01.2018 (Annexure R-5). It is thus after the directives of Court, the ASIs/Pharmacist enlisted as combatised w.e.f. 17.10.1989 to 28.03.2004 were granted the rank and pay scale of Sub Inspector/Pharmacist.
14. Apparently, it is not the case of the applicants that they have opted for combatisation when a policy decision was taken by the Ministry of Home & Affairs in the year 1989. The applicants continued as non combatised Pharmacists covered under CCS Rules while the persons who have opted for combatisation were imparted certain trainings and they came to be governed under CRPF Act, 1949. The rank of ASI/Pharmacists (non- combatised) in CRPF after combatisation was upgraded to SI/Pharmacist on account of the judicial verdict and the combined seniority list of combatised and non combatised personnel has correctly been re-assigned and the combatised SI/Pharmacist, who were enlisted as combatised w.e.f. 17.10.1989 (the date of combatisation) to 28.03.2004, have marched over Page 11 of 13 12 OA No.203/745/2022 and above the ASI/Pharmacist (non combatised) irrespective of their date of appointment.
15. It is the case of the applicants that the seniority amongst these two cadres ought to have been determined separately based on difference of nature of duties in both the cadre, if not, the date of initial appointment in the cadre (combatised or non combatised) is to be reckoned as a guiding principle to maintain their seniority position. In this regard, they have cited the judgment of Hon'ble High Court of Madras in W.P. No.8361 of 2004 (supra). We are in respectful agreement with the decision of Hon'ble High Court of Madras in the aforesaid case. But, at the same time, we also cannot ignore of the fact that the position of ASI /Pharmacists, combatised before 28.03.2004, has now since been changed after the judgment of Hon'ble Supreme Court in SLP (C) Nos.15552-15553/2016, therefore, even though the applicants were appointed prior to those persons, have no locus standi to unsettle the seniority position particularly without impleading them as necessary party in this case.
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16. Considering the overall facts and circumstances of the case, we do not find any merit in this Original Application. Accordingly, the Original Application is dismissed. No order as to costs.
(Kumar Rajesh Chandra) (Akhil Kumar Srivastava)
Administrative Member Judicial Member
am/-
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