Central Administrative Tribunal - Allahabad
Banmali Aged About 61 Years Son Of Shri ... vs Mohd. Abdula Khan (2006) 10 Scc 84: Air ... on 25 April, 2012
(RESERVED) CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD ALLAHABAD this the ____ day of _______ 2012. HONBLE MS. JAYATI CHANDRA, MEMBER A ORIGINAL APPLICATION NO. 128 OF 2008 Banmali aged about 61 years son of Shri Basante resident of Village and Post Hassari, Jhansi. Applicant VE R S U S 1. Union of India through Secretary, Ministry of Agriculture, Govt. of India, Krishi Bhawan, New Delhi. 2. Indian Council for Agricultural Research, Krishi Bhawan, New Delhi, through its Chairman. 3. Director, Indian Grassland and Fodder Research Institute Gwalior Road, Jhansi. ..Respondents Advocate for the applicant: Shri R.K. Nigam Advocate for the Respondents : Shri N.P. Singh Reserved on 25.4.2012. O R D E R
The instant O.A. has been instituted by the applicant under section 19 of Administrative Tribunals Act 1985 praying for quashing of impugned order dated 27.2.2007 (Annexure A-2).
2. The applicant has stated that he was appointed on the post of Junior Scientific Assistant (in short JSA) in the grade of Rs. 110-200 on 29.8.1968. His date of birth was 02.02.1947. The basic qualification for recruitment on the post of JSA was High School passed with Science. He had the requisite qualification (Annexure A-3). According to the applicant, the post of JSA belonged to the Scientific Cadre. As a matter of administrative anomaly, he was diverted without his consent from Scientific Cadre to Technical Cadre. The respondents thereafter had continued advancing him up to the last held post of T-5 (Grade Rs.6500-10500). The applicant continued to hold his lien in the Scientific Cadre. His lien was never terminated.
3. The date of retirement for persons belonging to the Scientific Cadre is 62 years and that of persons in the Technical Cadre is 60 years. The applicant by the impugned order has been retired at the age of 60 years in violation of his rights under Article 311 (2) of the Constitution as the action of the respondents amounts to removal from service before his due date of retirement.
4. Applicant has further averred that many persons junior to him have continued to work in the Scientific Cadre. He has specifically named one Kashi Prasad Niranjan, who continues to work in Scientific Cadre and will therefore get the benefit of higher age of retirement. The applicant had represented against the change of his cadre on 25.11.2005 and 24.1.2006 but those representations have not been decided. Moreover the malafide intention of the respondents very clear from the use of word relieve in the impugned order rather than retire.
5. In the Rejoinder affidavit, the applicant has laid maximum stress of the fact that he had never joined the technical wing of CSIR.
6. The respondents have raised two preliminary objections:
(a) Union of India in the array of parties should be impleaded through the Secretary, Ministry of Agriculture and Research and not Secretary, Ministry of Agriculture.
(b) I.C.A.R being an independent organization should be impleaded as a party through its Secretary and not Chairman.
7. Coming to the substantive issue, the respondents have denied all the averments made by the applicant. They have admitted that the applicant was initially appointed on the post of JSA in the pay scale of Rs.110-200 on 29.8.1968. This was a group C post with minimum qualification of High School (Science). After 3rd Pay Commission, the pay scale was revised as 260-6-240-EB-6-326-8-366-EB-8-390-10-430 w.e.f. 1.1.1973.
8. Vide order dated 29.7.1977 (Annexure CA-5) certain posts, including JSA were classified and categorized as Technical Cadre posts w.e.f. 30.9.1975. This exercise involved about 20 posts. Similarly certain other posts were categorized as Scientific Cadre posts. The comparison of the various pay band would reveal that the pay scale are totally different:-
Sl No. Scientific Category Grade
1.
Scientist (S) Rs.550-900
2. Scientist S-1 Rs.700-1300
3. Scientist S-2 Rs.1100-1600
4. Scientist S-3 Rs.1500-2000 Sl No. Technical category Grade
1. Category -1 T-1 Rs.260-430 T-2 Rs.330-560 T-1-3 Rs.425-700
2. Category II T-II-3 Rs. 425-700 T-4 Rs.550-25-750-EB-30-900 T-5 Rs. 650-30-740-35-810-EB-35-880-40-1000-EB-40-1200
3. Category -III T-6 Rs. 700-40-900-EB-40-1100-50-1300 Rs.1100-50-1600 T-7 Rs.1350-50-1700 T-8 Rs. 1500-60-1800-100-2000
9. The Technical Service Rules of the ICAR came into force w.e.f. 1.10.1975. All persons working against certain posts (about 20 different posts) whose nature of work was technical were brought under these Rules vide order dated 9.5.1977 (Annexure CA-2). All such persons were non-graduates. Applicant was placed at Sl. No. 27 of the order the total number of persons being 56.
10. The applicant, who was working as JSA (revised pay scale of 260-430) continued to hold a post in the same pay scale. His post was given grade number of T-1. While in the matter of cadre revision including categorizing of posts, his consent was not necessary, he had, in fact, been selected on the post of T-3 cadre in the pay scale of Rs.420-700 under the Direct Recruitment post through the process of selection on the basis of advertisement notification No.ICAR 3/87 (Annexure CA-4). Thereafter he was promoted in due course of time to T-4 to T-5 in the pay scale of Rs.6500-10500 w.e.f. 1.1.2003. Copy of Service Book is annexed at Annexure CA-8.
11. The age of retirement for all categories of posts in the various office of Respondent Nos. 2 and 3 was 60 years. The age of superannuation of Scientist working in the ICAR was raised from 60 years to 62 years by notification dated 30.10.2003. Applicant has been sanctioned his full pension and has been paid his retrial dues on reaching 60 years on 28.2.2007.
12 The case of Shri K.P. Niranjan is distinct and separate. At the time of extending the Technical Service Rules to various categories of posts by OM dated 9.5.1977 (Annexure CA-2), K.P. Niranjan was in the pay scale of Rs.425-700 and was designated as Technical Assistant (T-III). Applicant was JSA in pay scale of Rs.260-430. After acquiring Post Graduate Degree in Agriculture, K.P. Niranjan was inducted in grades of Scientific Cadre with pay scale of Rs.550-900.
13. I have heard both the counsel for the parties and gone through the records on file.
14. Lien is defined in various Service Rules. Fundamental Rules Section III, Ch.II Rule 9 (13) defines lien as the title of a government servant to hold substantively a permanent post, including a tenure post, to which he has been appointed substantively. In the case of S. Narayana Vs. Mohd. Abdula Khan (2006) 10 SCC 84: AIR 2006 SC 2224, the Apex Court has held that There is nothing like a lien on a post unless a person was made permanent in a post Although it is admitted that the applicant was appointed on the post of JSA, but there is no appointment order placed on record which would make it clear whether his appointment was substantive. There is nothing to show when, if ever, he was made permanent and against which permanent post. In absence of any such record, the question of holding a lien on a post remains inconclusive. However, both the parties have proceeded with the assumption that the applicant held a lien on some post or the other by implication that of JSA.
15. The next issue is the applicants claim that his lien was transferred from Scientific Cadre to Technical Cadre. He has place reliance on O.A. NO. 221 of 1987 N. Krishna Iyer Vs. Union of India and ors. (1990) 12 Administrative Tribunals Cases 883. Central Administrative Tribunal, Ernakulam Bench has held that any transfer outside the cadre even though (in this case) may be last for 16 years could not have the effect of terminating the lien in the original cadre.
16. In the case of the applicant he was not transferred from his post of JSA to any other post, but the post itself was re-categorized, even while the designation remained the same.
17. The logical question that arises is whether the respondents have overstepped their jurisdiction by carrying out the categorization of posts into Scientific category and Technical category in the year 1975/1977. In the case of P.U. Joshi and Ors. Vs. Accountant General, Ahmedabad and Ors. (2003) 2 Supreme Court Cases 632, Honble Supreme Court has laid down the following principles:-
determination of conditions of service, alternation thereof by amending rules, constitution, classification or abolition of posts, cadres or categories of service, amalgamation, bifurcation of departments, reconstitution, restructuring of the pattern etc., all pertain to executive policy and within exclusive discretion of the State, subject to limitations and restrictions envisaged in the Constitution. Government servants have only right to safeguarding rights or benefits already earned, acquired or accrued but they cannot challenge the authority of State to make such amendments or alterations in rules. Nor can Tribunal interfere with the exclusive discretionary jurisdiction of the State.
It is observed by the Honble Apex Court:-
There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service.
18. The two orders related to recategorizing of posts and implementation of Rule 8 of the Service Rules for Technical Service as available at CA-3 & CA-2 pertains to executive policy and are therefore within the exclusive discretion of the Respondents. It has only to be examined if the applicant has, in any way, been adversely affected. In the matter of pay scale there is no reduction. The channel of promotion available through T-1 to T-6 posts have also not been challenged by applicant as being adverse. The applicant has continued to enjoy the benefit of promotion right up to the stage of T-5 in the pay scale of Rs.6500-10500. Thus in these matters there has been no curtailment of rights or benefits already earned, acquired or accrued. The age of retirement of all persons belonging to both Scientific Cadre and Technical Cadre was 60 years till 2003 long after the recategorization of posts. While certain benefits were made available as a result of administrative decision by the Competent Authority to persons working in the Scientific category, there has been no reduction in the retirement age of persons working against posts of Technical Category or against other administrative posts. Hence there is no denial of benefits accrued.
19. The last and final question to be answered is has there been a violation of Article 311 (2) of the Constitution. The Article reads :-
311 (2) No such personas aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.
By the impugned order, the applicant has been relieved at the age of 60 i.e. the age of retirement on 28.2.2007, date of birth being 02.02.1947
20. In the light of the above, O.A. is dismissed. No costs.
Member (A) Manish/-
. The applicant has shown all concerning particulars of service including date of birth etc. at Annexure A-2. According to the latest statutes of the Respondents, the age of retirement age for various Personnels/Officials of the Scientific cadre is 62 years. There are two cadres in the office of respondents, one Scientific Cadre and other is Technical Cadre. The date of retirement of persons belonging to Technical cadre is 60 years. These two separates cadre have their own channel of promotion, date of retirement and time scaleas under:-
Scientific Cadre Technical Cadre S 0 T S 1 T 1 S 2 T 2 PS T 3 T 4 T 5 T 6 T 7 T 8 T 9 The basic qualification in the Scientific Cadre and Technical Cadre are different. The applicant was recruited on the post of Junior Scientific Assistant, which has basic qualification of High School (Science). The many person junior to the applicant namely Kashi Prasad Niranjan is junior to the applicant in the Scientific Cadre but he continues to service in the age of 62 years. The applicant was diverted from Scientific Cadre to a Technical Cadre and the respondents have advanced the promotion up to the stage of T-5 with the grade of Rs.6500-10500. The applicant has represented against his change of cadre resulting in loss of 2 years of service on 25.11.2005 and 24.1.2006. The respondents have not disposed of those representations and he is being unilaterally relieved vide impugned order w.e.f. 28.2.2007. It is very clear from the warding of the impugned order that respondents are aware of their malafide in not retiring and are, therefore, using the word relieved and not retired. The basic contention of the applicant is that he is borne on the Scientific Cadre and, therefore, cannot be retired earlier than the age of 62 years.
3. In pressing the case verbally, the learned counsel for the applicant has stressed that the applicant holds his lien in the cadre of Scientific Assistant, his lien on the Scientific Assistant has never been terminated. It is against termination of lien of a person without his consent is illegal. He was transferred from Scientific Cadre to Technical Cadre in 1997. In transferring him, no option was taken from him but he was arbitrarily posted by order dated 30.3.1997.
4. The respondents have raised the preliminary objection in the array of the parties. I.C.A.R being an independent organization should be made a party through his Secretary and not Chairman as shown in the list of respondents. Moreover, Union of India should be impleaded through Scretary, Ministry of Agriculture and Research and not Secretary, Agriculture.
5. Coming to the merits of the case, the respondents have denied all averments made by the applicant. Their contention is that the applicant is appointed on the post of Junior Scientific Assistant in the pay scale of Rs. 110-200 on 29.8.1968. This post was a Group C post. After 3rd Pay Commission, the aforesaid pay scale was revised as 260-6-240-EB-6-326-8-366-EB-8-390-10-430 w.e.f. 1.1.1973. The Technical Service Rules came into effect in the I.C.A.R from 1.10.1975. All existing technical employees whose duties pertinent to performing technical service in support of Research and Education in the Laboratory, Workshop, Field or Library etc. were classified as the technical category. In continuation of such a categorization Technical Service Rules were remained effective from 1.10.1975 and all non-graduate and holding the post of Junior Scientific Assistant in the revised pay scale of Rs. 260-430 were adjusted in T-1 grade under the provisions of the Technical Service Rules. Vide office order dated 9.5.1977 (Annexure CA-2) the applicant was one amongst the 56 persons, who were so belonging to technical service cadre. Moreover, the applicant was appointed/selected on the post of T-3 cadre in the pay scale of Rs.420-700 under the Direct Recruitment post through selection process on the basis of advertisement notification No.ICAR 3/87 (Annexure CA-4). The applicant had accepted the post of T-III (Technical Assistant) by letter dated 28.4.1989 (Annexure CA-5). This post was initially temporary and so sanctioned up to 28.2.1990. The Junior Scientific Assistant post was redesignated as a result of induction of Service Rules for Technical category. The retirement age of Scientist in the ICAR from 60 years to 62 years was introduced by notification dated 31.01.2003 (Annexure CA-3). The applicant was given all promotions up to level of T-5 i.e. Technical Officer and he has been given all retirement benefits such as leave encashment, DCRG, leave commutation. He has ever been issued a regular Pension Paper Order. The respondents have produced a copy of the service record of the applicant (Annexure CA-8) in support of their claim that regular and due promotion was given to the applicant in the technical cadre. They have further denied fact that any persons junior to the applicant in his first post of appointment has been put in the Scientific Cadre and has been given the benefit of 62 years of service. The applicant has quoted the name of Scientist Shri K.P. Niranjan who was holding the post of Technical Assistant in the pay scale of Rs. 425-700 at the time of induction vide office order dated 9.5.1977. He was not only senior to the applicant, he was also holding higher post as Technical Assistant in the pay scale of Rs. 425-700. On acquiring Post Graduate Degree in the branch of Agriculture he was inducted in Grade S in the pay scale of Rs. 550-900 as per Agriculture Research Service Rules 1977.
6. The applicant has cited the case law of N. Krishna Iyer Vs. Union of India and ors. (1990) 12 Administrative Tribunals Cases 883 passed in O.A. NO. 221 of 1987. Central Administrative Tribunal, Ernakulam Bench has held that any transfer outside the cadre even though it may be for last 16 years could not have been terminated in the lien in the original cadre. In this particular case, the applicant who was confirmed as a Stenographer was not in the cadre of any a particular State but All India Radio, Trivandrum as confirmation was subject to his eligibility to be transferred only under the Public Corporation and not to any other State. But he was sent on posting to Karnataka and he was consequently disentitled to promote in the State of Kerala but there was no order or instruction to indicate as transfer to Kerala resulted in termination or transference of his lien in the State of Kerala.
7. The basic question that has to be decided is does the applicant had a lien in the Scientific Cadre and if so does he then is entitled to the benefit of higher age of retirement. As per the conditions and existence of Service/Executive Police, lien cannot the right of civil servant to hold the post substantially to which he is appointed.
5. In the compilation, there are no orders of promotion from one category to another and whether the promotion is adhoc or otherwise. There is no seniority list in any one cadre to show that there is a permanent claim on basis of seniority for any kind of post. The copy of the service book filed by the respondents as Annexure CA-8 shows promotion from the post of T-4 in the pay scale of Rs.5500-9000 w.e.f. 1.9.1998. Promotion to T-5 in the pay scale of 6500-10500 w.e.f. 1.1.2006 but the page of service book do not disclose the status of his confirmation or whether the promotion is permanent or temporary in nature. Right to retain lien is reflected in various service rules for example r. 9 (13) of the Fundamental Rules provides as follows:-
Lien means the title of a Government servant to hold substantively, either immediately or on the termination of a period of periods of absence, a permanent post, including a tenure post, to which he has been appointed substantively. In the leading case of Parshotam Lal Dhigra Vs. Union of India, the Honble Supreme Court pointed out the incident of a substantive appointment in these words:
A substantive appointment to a permanent post in public service confers normally on the servant so appointed a substantive right to the post and he becomes entitled to hold a lien on the post. This lien is defined in Fundamental Rules, Section III, Ch. II, Rule 9 (13) as the title of a Government servant to hold substantively a permanent post, including a tenure post, to which he has been appointed substantively.
6. Therefore, it has conclusively proved that applicant had hold lien on any post by virtue of inability to provide the relevant documents.
7. Coming to the question of the post of Junior Scientific Assistant being part of a specific cadre is concerned, it is clear that at the time of initial appointment to the post of Junior Scientific Assistant there were no separate cadre of Technical Assistant. As per respondents, the creation of a Technical Service cadre came into effect on 1.10.1975 and all the existing technical employees of the Council where the duties of post pertain to performing technical service in support of research and education whether in the Laboratory, Workshop, Field, Library, Communication etc. are classified in the technical category and these posts came to be governed by the Technical Service Rules dated 1.10.1975. It is clear from the office order dated 9.5.1977 (Annexure CA-2) that around 56 employees including applicant holding various posts were adjusted into the cadre and pay scale shown against each. As per provision under Rule 4 of the Technical Service Rules, this adjustment was effective from 1.10.1975. The designation of the Junior Scientific Assistant is one of the designations, which are reflected in the office order. By another office order dated 29.7.1977 (Annexure CA-3) some of the posts were re-designated and reclassified, Junior Scientific Assistant in the pay scale of Rs. 260-430/- was classified as Technical and redesignated as Field Assistant. A perusal of the various designations and the categorization show that only posts above the pay scale of 650-1200 i.e. Assistant Analytical Chemist was classified as Scientific. All the posts except the post of Junior Engineer (Repairs and Maintenance) in the pay scale of Rs.700-1200 and Junior Engineer in the same pay scale were lower than the minimum pay scale of a post having scientific classification. It has been held by the Honble Supreme Court in the case of P.U. Joshi and Ors. Vs. Accountant General, Ahmedabad and Ors. (2003) 2 Supreme Court Cases 632 as under:-
determination of conditions of service, alternation thereof by amending rules, constitution, classification or abolition of posts, cadres or categories of service, amalgamation, bifurcation of departments, reconstitution, restructuring of the pattern etc., all pertain to executive policy and within exclusive discretion of the State, subject to limitations and restrictions envisaged in the Constitution. Government servants have only right to safeguarding rights or benefits already earned, acquired or accrued but they cannot challenge the authority of State to make such amendments or alterations in rules. Nor can Tribunal interfere with the exclusive discretionary jurisdiction of the State.
8. Since the terms of recruitment including the age of retirement at the time of initial appointment has not been disclosed by the applicant and inferring from the date raising the age limit for the post under the Scientific classification from 60-62 being in the year 2005. The issue of higher age level of 62 for posts which are classified as Scientific cadre was introduced in the year ----2005 by which time it has been well stated that substantive post of Junior Engineer and Junior Scientific Assistant on which the entire case of the applicant stands has been redesignated as Field Assistant and thereafter including the Technical Cadre, moreover, he had availed of all promotions. The applicant was to be retired at whichever age was prevalent at the point of retirement i.e. 58 years and subsequently to 60 years. Therefore, by redesignation of the post by the Competent Authority, he has incurred no rights and benefits, which have already been earned, acquired or accrued.
9. The applicant entered service in the year 1968. At that point of time, the retirement age was 58 for all Government employee. Subsequently he was occupying the post in the technical category and service rules came into existence in 1977. Once again the date of retirement as per General Central Government Policy was 58 years, the higher retirement age of 60 for all categories of Government servant came into existence on _______________. It is only 2003 that long after the two extreme Scientific Cadre and Technical Cadre had been reflected that the 62 years age for retirement was introduced for Scientific Cadre. By then the applicant had been given regular promotions from T-3 cadre to T-5 cadre. Even if it is taken that his lien on his original post of Junior Scientific Assistant is maintained the post itself does not remain any more in any cadre and right of the Administration to do a reorganization as opined by Honble Supreme Court. This lie within the purview of the Court. Hence O.A. is dismissed. No costs.
Member A Manish/-
5. No appointment order has been available on record to show the conditions of appointment of the applicant being permanent on the post of JSA or the appointment is on probation subject to confirmation or the appointment is against a temporary post. Therefore, it is not conclusively proved by the applicant that he holds lien on the post of Junior Scientific Assistant. The definition of lien. There is nothing like a lien on a post unless a person was made permanent in a post as held in the case of S. Narayana Vs. Mohd. Abdula Khan and ors. Therefore, the post itself must be permanent in nature.
8. Certain posts in the ICAR including that of JSA which were rendering technical assistance to scientific work were classified and categorized in the technical cadre w.e.f. 30.9.1975. The service of the persons working in the technical cadre were to be governed under the Technical Service Rules, which became effective in the ICAR from 1.10.1975. It is clear that about 20 designations were involved in the Organization all of whom were given revised grades numbers ranging from T-1 to T-6. The post of JSA in the pay scale of Rs.260-430 was given the revised grade number of T-1. Further by office order dated 29.7.1977, certain posts were re-categorized into Scientific and Technical Cadre. Lowest pay scale of post in the Scientific Cadre was 650-12 and highest pay was in the pay scale 1100-1600 where as lowest pay for technical category was 260-430 and highest pay scale was 700-1300. Thus care was taken to ensure that through this recategorization, the pay scales were not tempered with the I.C.A.R. as two esteem of post which are ranged as below:-
Scientific Cadre Technical Cadre S 0 T S 1 T 1 S 2 T 2 PS T 3 T 4 T 5 T 6 T 7 T 8 T 9 ??
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??20 O.A. NO. 128/08