Central Administrative Tribunal - Ernakulam
Friday vs The Administrator on 8 July, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 839 of 2009
Friday, this the 08th day of July, 2011.
CORAM:
HON'BLE Mr. JUSTICE P.R. RAMAN, JUDICIAL MEMBER
HON'BLE Mr. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER
1 K.C. Sayeed, S/o. Indeen
Laboratory Technician
Government Hospital Minicoy Island
(Retired) Residing at Karachetta
Androth Island, U.T. of Lakshadweep
2 Zainalabid, S/o. Abdula Hajee
Laboratory Technician
Indira Gandhi Hospital
Residing at Kavarathy Island
U.T of Lakshadweep
3 P.V.P Badarudeen
S/o. E.K Attakoya
Laboratory Technician
C.H.C Androth Island
Residing at Androth Island
U.T. of Lakshadweep
4 M.C. Mohamed Koya
S/o. Ahamed Haji
Laboratory Technician
Indira Gandhi Hospital
Kavarathy, U.T. of Lakshadweep
Residing at Kavaratti.
5 K. Akbar Ali
S/o. Koyamma Koya
Laboratory Technician
C.H.C. Androth Island
Residing at Androth Island
U.T. of Lakshadweep
6 M.C. Mohammed Hussain
S/o. K. Ahamed Ali
Laboratory Technician
Public Health Centre, Kiltan Island
7 P.I. Attakoya, S/o. Koya Haji
Laboratory Technician
Community Health Centre
Agathi, U.T. of Lakshadweep ..... Applicants
(By Advocate Mr. P.V. Mohanan)
Versus
1 The Administrator
U.T. of Lakshadwee, Kavaratti
2 Union of India
Represented by Secretary to Government
Ministry of Personnel, Public Grievances
and Pension, New Delhi .... Respondents
(By Advocate Mr. S. Radhakrishnan for R-1)
(By Advocate Mr. Sunil Jacob Jose, SCGSC for R-2)
The application having been heard on 22.06.2011, the Tribunal on
08.07.11 delivered the following:
O R D E R
HON'BLE Mr. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER The applicants in this O.A. are Laboratory Technicians in the Department of Medical and Health Services, Union Territory of Lakshadweep. They were granted financial upgradations under the ACP Scheme in the pay scale of Rs. 5500-9000 and Rs. 6500-10500 on completion of 12 and 24 years of service vide Annexure A-2 and A-3 orders both dated 15.04.2000. The same was withdrawn by Annexure A-4 order dated 27.10.2003 without notice. This Tribunal had directed the respondents to reconsider the said order. The claim of the applicants was rejected by the respondents vide Annexure A-6 order dated 11.06.2009. Aggrieved, the applicants have filed this O.A.
2. The applicants submit that they are qualified for promotion for appointment to the post of Technical Assistant as per Recruitment Rules. They were granted the pay scale of Technical Assistant after verifying the service records. The fixation of pay has been revised without any notice to them which is arbitrary and illegal. The fixation of pay of similarly placed candidates is not revised. The post of Technical Assistant is a higher promotion post in the Department. It is not a mode of appointment , but the scale of pay which determines the nature of post. Therefore, the post of Technical Assistant is a hierarchical post in the Department.
3. The respondent No. 1 in his reply statement submitted that the applicants were directly recruited as Laboratory Technicians in the Department of Medical and Health Services, Lakshadweep. The post of Laboratory Technician and the Senior Laboratory Technician were merged in one grade of Rs. 4500-7000. They were granted higher pay scale of 5500- 9000 and 6500-10500 on 15.04.2000 under the ACP Scheme. The said order was revised because of the mistake in fixing the ACP scale at Rs. 5500-9000 instead of Rs. 5000-8000 while considering their case for grant of ACP. There are no hierarchical posts in the Department for promotion of Laboratory Technicians after the merger of pay scales of Laboratory Technician and the Senior Laboratory Technician in one grade. The post of Technical Assistant is a post under Aids Control Society, which is not a permanent post for providing promotion to the Laboratory Technician. Further, they are considered for appointment to the said post on deputation basis along with others as per the Recruitment Rules. This Tribunal directed the respondents in O.A. No. 204/2004 to consider the case of the applicants and issue a speaking order. The order at Annexure A-6 was issued in compliance. The post of Technical Assistant is a post under the Aids Control Society, which is to be filled up by transfer on deputation. The excess salary paid to the applicant consequent to the mistake of considering the post of Technical Assistant as a promotion post for the applicants is to be recovered from them. The Government of India had conveyed vide letter dated 27.09.1999 that the entry qualifications for filling up the post of laboratory Technician in the Directorate if NMEP is B.Sc. (Biology)/Bio-Chemistry/Micro- biology whereas the qualifications for the post of Laboratory Technician in the Union Territory of Lakshadweep is pass in Pre-Degree with Physics and Chemistry and Diploma course in Medical Lab Technology or Certificate course from a recognised institution and that the qualification/experience etc. of the Laboratory Technicians in Lakshadweep are comparable only with those of the lowest post of Insect Collectors in the Directorate of NMEP. The transfer on deputation of the applicants to this post will not confer on them the benefit of promotion as it is not a higher grade in the normal promotion hierarchy. After the merger of the scales of Laboratory Technician and the Senior Laboratory Technician, there is no hierarchical post in the Department for promotion to the post of Laboratory Technician. The proposal for creation of two posts of Technical Assistants is still pending with the Government of India. The applicants have already been allowed higher grade of ACP to which they are actually entitled.
4. In the rejoinder, the applicants have submitted that in view O.M.No. 35034/1/97-Estt(D)(Vol.IV) dated 18.07.2001 (Annexure A-9), the post of Technical Assistant is a hierarchical post and the methodology of appointment is not a criterion.
5. In the additional reply statement, the respondent No. 1 submitted that the Laboratory Technicians in Delhi are having higher academic qualifications than the applicants and therefore, the above clarification dated 18.07.2001 will not be applicable and that the post of Technical Assistant is not a hierarchical post in the line of promotion as stated by the applicants.
6. We have heard Mr. P.V. Mohanan, learned counsel for the applicant, Mr. S. Radhakrishnan, learned counsel for the respondent No. 1 and Mr. Sunil Jacob Jose, learned SCGSC appearing for the respondent No.2 and perused the records.
7. On realizing that there was an error in considering the post of Technical Assistant as a hierarchical post to which the applicants could be promoted while granting them ACP, the order dated 15.04.2000 was revised by the respondents and the applicants were granted upgradation to which they were entitled to. The impugned order dated 11.06.2009 is a speaking order giving reasons for correcting the mistake that had crept into the earlier orders granting financial upgradations to the applicants. The respondents are entitled to correct the mistake that had crept in while granting the financial upgradation under the ACP Scheme on 15.04.2000. The applicants are not entitled to the benefit of an unintended mistake.
8. The crux of the issue in this O.A is whether the post of Technical Assistant is a promotion post in the normal line for the applicants. The applicants have joined as Laboratory Technicians in the Department of Medical and Health Services , Union Territory of Lakshadweep. The post of Technical Assistant is under the Lakshadweep Aids Control Society. It is not a permanent post. The method of recruitment for this post is by transfer on deputation failing which by short term contract only. Officers under the Central/State Government/U.T. Administrations/Autonomous Organizations holding analogous posts on a regular basis or with 5 years regular service in the post of Senior Laboratory Technician or with 10 years regular service in the post of Laboratory Technician are eligible to be considered for being posted as Technical Assistant under the Aids Control Society. The Laboratory Technician under the Union Territory of Lakshadweep is only one of the feeder categories for transfer on deputation to the post of Technical Assistant under the Aids Control Society. Therefore, it is quite clear that the aforesaid post under the Aids Control Society is not hierarchical post available in the Department of Medical and Health Services, U.T. of Lakshadweep for promotion from the post of Laboratory Technician. The Government of India had rejected the representations of the applicants stating that the entry qualification of Laboratory Technician in Lakshadweep is much lower than the entry qualification for filling up the post of Laboratory Technician elsewhere. Therefore, they are not entitled to the benefit of clarification dated 18.07.2001 as there is no post of Technical Assistant in the hierarchy for the applicants for promotion and also because of the lower entry qualifications of the applicants. As such, there is no merit in the contentions of the applicants. The O.A. is liable to be dismissed.
9. However, the applicants are in no way responsible for the mistake on the part of the respondents. They benefited from the mistake which occurred not on account of any fraud or misrepresentation on their part. They are low paid employees with no prospect of promotion. They might have already spent the amount they got on account of the financial upgradations to the wrong pay scale. The recovery of the amount now would cause undue hardship to the applicants. Hence, the respondents are directed not to recover the excess payment already made.
10. The O.A is dismissed with a direction not to recover the excess amount paid to the applicants so far. No order as to costs.
(Dated, the 08th July, 2011)
(K. GEORGE JOSEPH) (JUSTICE P.R. RAMAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
cvr.