Central Administrative Tribunal - Bangalore
S P Muthukumar vs Council Of Scientific And Industrial ... on 27 September, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00145/2020
DATED THIS THE 27TH DAY OF SEPTEMBER, 2023
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
S.P. Muthukumar
S/o S. Peddharaman,
Aged 48 years,
Working as Principal Scientist,
CSIR-CFTRI, Mysore- 570 020
And R/at
No. 1038, 10th Main Road,
MUDA Layout, Bogadhi II Stage,
Mysore- 570 026 ...Applicant.
(By Advocate Shri M. Narayana Bhat)
Vs.
1. Union of India,
Rep. by its Secretary,
Ministry of Science and Technology
C.G.O. Complex,
Lodhi Road, New Delhi- 110 001.
2. Council of Scientific and
Industrial Research (CSIR)
Head Quarters, Anusandhan Bhavan
No. 2, Rafi Ahmed Kidwai Marg,
New Delhi- 110 001, Rep. by its Director General.
3. CSIR-Central Food Technological
Research Institute (CFTRI)
K.R.S. Road, Mysore- 570 020.
Rep. by its Director. ... Respondents.
(By Shri K. Ananda, Advocate, for Respondents)
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O R D E R (ORAL)
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
a) To quash the order no. FT/2(2916)/2005/E.III dated 20.12.2019 (Annexure-A12) vide which the Non-Practicing Allowance being paid to the applicant has been stopped w.e.f., December, 2019 onwards.
b) To direct the Respondents to extend all benefits consequent upon quashing the Annexure-A12 with a further direction to continue the payment of non-practicing allowance on month-to-month basis.
c) Grant him cost of this petition.
d) Pass such other order or orders as this Hon'ble Tribunal deems fit and
expedient to grant in the circumstances of the case.
2. The facts of the case as averred by the applicant in his pleadings, are as follows:
a) The applicant has a Bachelor's Degree in Veterinary Science from Tamil Nadu Veterinary University of the year 1995. Subsequently, he did his Master's Degree in Veterinary Science (M.V.Sc) from Kerala Agricultural University, Trishoor and passed the same in 2004.
b) The applicant worked as Assistant Professor in the Kerala Agricultural University from 1997-1998. Subsequently, he was selected to the post of 3 OA.No.145/2020/CAT/Bangalore Bench Veterinary Surgeon by the Government of Kerala and worked in the said capacity from 1998-99.
c) The applicant applied for the post of Technical Officer in the year 2004.
He worked in the said post from 2004-05. While working, he had also submitted an application for the post of Scientist-E-I/Senior Scientist in the organisation of Respondent No. 2. The applicant was appointed as Scientist GR. IV(3) which was in the pay of Rs. 12000-375-16500/-.
d) The offer of appointment came to be issued on 04.10.2005. The applicant reported for duty with effect from 31.10.2005 forenoon. The pay of the applicant came to be fixed by an OM dated 11.02.2008. Non-practicing allowance also was allowed to him w.e.f., 28.02.2008. This was done in pursuant to the resolution passed by the 2nd Respondent-Society in its 170th Meeting held on 28.01.2008.
e) Applicant was promoted to the post of Principal Scientist vide Memorandum dated 27.07.2011 from retrospective effect i.e., from 31.10.2009. The pay of the applicant was fixed in pay band of Rs. 40,220 as on 01.07.2011 with a grade pay of Rs. 8,700/- and Non-Practicing Allowance (NPA) of Rs. 12,230/- and a Special Pay of Rs. 2,780/-
f) The applicant was further promoted to the cadre of Senior Principal Scientist by an order dated 01.08.2019. The second promotion was granted with retrospective effect from 31.10.2016. The non-practicing allowance was granted to him in pursuant to Annexure-A4 by the OM dated 02.06.2008 and this fact was also communicated to the applicant. 4
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g) The applicant is a professional Veterinarian and he has been recruited having regard to the fact the he possessed the prescribed professional degree in Veterinary Science which was the essential qualification prescribed to hold the post of Scientist in the organisations of Respondents No. 2 and 3.
h) It appears that there were certain audit objections. One of the objections was the order of the department of expenditure bearing No. 7/23/2008- E. III (A) dated 30.09.2008. Another order is OM No. 12-2/2016-E.III A, dated 07.07.2017.
i) The applicant is a Veterinary Doctor. Having regard to the basic Bachelor's Degree and Master Degree in Veterinary Science also Ph.D which the applicant possessed, he was selected in pursuant to the advertisement issued at Annexure-A1 and also having regard to his experience as a Veterinary Surgeon. He was selected and appointed to the post of Scientist. Non-practicing allowance was given to him because he had registered himself as a Veterinary Doctor by the Veterinary Council of India. Non- practicing allowance is allowed because the professional does not practice his profession having regard to the work which is entrusted by the 2nd Respondent and the same is extended in lieu of private practice, which otherwise, the applicant would continue. The said allowance has been granted on the resolution of the 2nd Respondent- Society. The Administrative Officer or anyone else including the auditors have no power to regulate the order. The pay of the applicant was fixed in pursuant to the resolution of the 2nd Respondent Society. This has been stopped and hence this application. 5
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j) The Administrative Officer of the 3rd Respondent has quoted Annexure-
A10 and has ordered stoppage of non-practicing allowance to the applicant with effect from December 2019 onwards. Being aggrieved by the above, the applicant made a representation to the Director on 23.12.2019. The applicant made one more representation on 03.01.2020 and this was made after receipt of the audit objections which were communicated to him by e-mail.
3. The respondents have filed their written statement wherein they have averred as follows:
a) CSIR-CFTRI vide Advertisement No. REC 2/2004 had invited applications for various Scientific positions. In response to the above advertisement, the applicant, submitted his application for the Post of Scientist Gr. IV(3) - Post Code No. 435. The Essential Qualification for the Post Code No. 435 required First Class Masters in Veterinary Science with a minimum of five years of post-qualification R&D experience or Ph.D in Veterinary Science with a minimum of four years of post-doctoral R&D experience in R&D institutions/commercial research centres in the areas of veterinary science, animal breeding and animal house practices, with proven ability of cost competitive process development.
b) The Job requirement specified in the advertisement as reproduced below clearly states that the nature of work involved would be purely of R&D nature without any scope for medical practices. 6
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1. Development of innovative methodologies in veterinary science and animal breeding and modern methods for maintenance of animal house.
2. Generation of external cash flow by undertaking Sponsored and Consultancy Projects on veterinary science, animal breeding and animal house practices.
c) The Advertisement nowhere specified grant of Non-Practicing Allowance for the above Post. CSIR-CFTRI on completion of the recruitment procedure issued 'Offer of Appointment' vide CSIR- CFTRI Letter dated October 4, 2005 to the applicant for the Post of Scientist Gr. IV (3) on the basis of the recommendations of the Selection Committee and the approval of the Director CSIR-CFTRI.
d) The Offer of Appointment issued by CSIR-CFTRI as above clearly specified that the applicant would be eligible for an initial Basic pay of Rs. 12,000/- in the Scale of Pay of Rs. 12000-375-16,500 plus usual allowances as admissible under the rules applicable to the Council employees. While the Offer of Appointment issued by CSIR-CFTRI clearly stated the pay and allowances of the applicant, it nowhere specified that he would be eligible for Non-Practicing Allowance.
e) The Joining Report issued by CSIR-CFTRI again clearly stated that-
i) Dr. Muthukumar would draw a Basic pay of Rs. 12,000/- per month plus usual allowances as admissible under rules,
ii) He will be on probation for a period of one year from the date of joining, 7 OA.No.145/2020/CAT/Bangalore Bench
iii) He will be covered under the CFTRI Group Saving Insurance Scheme 1987 and
iv) that he will be covered under the New Pension Scheme of Government of India as applicable to new entrants joining CSIR Service on or after 1.1.2004.
f) The Joining O.M. issued by CSIR-CFTRI again did not mention that he would be eligible for the Non-Practising Allowance.
g) CSIR vide Letter dated 29/02/2008 conveyed the approval of the Governing Body, CSIR in its 170th meeting held on 28/01/2008 for extending the benefit of Non Practicing Allowance @ 25% of their Basic Pay to Scientist Gr. IV having MBBS & MD, MBBS & Ph.D, B.VSc & MVSc and BVSc & Ph.D qualifications, in order to attract medical and veterinary professionals for CSIR R&D programmes in drug and pharmaceuticals, biomedical and biotechnology areas.
h) In pursuance of the communication of CSIR as above, the applicant was granted Non-Practicing Allowance @ 25% of his Basic Pay effective from the date of issue of CSIR letter i.e., 28/02/2008 vide CFTRI O.M. dated 02/06/2008.
i) The CSIR O.M. as above clearly stipulates that the grant of NPA would be subject to the condition that the Basic Pay + NPA + DP does not exceed Rs. 44,250/- per month. In the instant case of Dr. Muthukumar, he exceeds the limit of Rs. 44,250/- laid down with effect from 31/10/2009 and thereby becomes ineligible for Non-Practicing Allowance as per CSIR orders also.
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j) CAG Audit during its auditing at CSIR-CFTRI on 21/05/2019 had submitted its observations vide Para 12 regarding grant of inadmissible Non-Practicing Allowance to the tune of Rs. 4.34 lakh. The observations of the audit are produced below:
i. In terms of Department of Expenditure, Ministry of Finance O.M. No.7(10)/2008.EIII(a) dated 30.9.2008, the Non Practicing Allowance should be restricted to those Medical Posts for which a medical qualification recognized under the Indian Medical Council Act, 1956 or under the Dentists Act, 1948 or has been prescribed as an essential qualification and to those veterinary posts for which minimum qualification of a Degree of B.V.Sc & AH with registration in the Veterinary Council of India is required.
ii. Further, in terms of O.M. NO. 12-2/2016-EIII A dated 7/7/2017, the NPA should be restricted to the posts with the qualification as mentioned in (1) above taking into consideration the conditions that the post is
(i) a clinical one
(ii) whole time post
(iii) ample scope for private practice and
(iv)necessary to prohibit private practice in public interest iii. The definition of a 'Clinical Position' clearly defines that the incumbent will have face to face contact with patients, examine the patients for the purpose of diagnosis and provides treatment and ongoing care. The duties performed by Dr. Muthukumar at CSIR-CFTRI is purely R&D in nature and is not performing in any way the duties of a 'Clinical Post' in terms of above definition.
iv. From the sanctioned strength of CSIR-CFTRI, there was no medical veterinary post sanctioned to the Institute till now. The 9 OA.No.145/2020/CAT/Bangalore Bench Audit has observed that Dr. S P Muthukumar, Emp. No. 2219 was appointed and reported as Scientist Gr. IV(3) on 31.10.2005 and is still holding Scientist Post under CSIR-CFTRI sanctioned position of manpower.
v. As there was no sanctioned veterinary post in the Institute and the above official was appointed against a scientist post under CSIR- CFTRI, the grant of Non-Practicing Allowance was irregular and was in violation of the OM of Ministry of Finance.
vi. The Audit has recommended for recovery of inadmissible amount and DA thereon so far paid to him.
k) In view of the observations of CAG Audit as above, clarifications of CSIR were Sought. CSIR after careful consideration of the matter with Finance, has clarified that it has not been found possible to extend the above orders to the Scientists working in National Laboratories/Institutes for the reasons that they are not holding the posts of Veterinary Doctors although they may be possessing degree in Veterinary Science. Further Non-Practicing Allowance is permissible only to the practicing Veterinary Doctors for not doing the practice outside the normal duty hours (CSIR Letter dated 24/05/1990 refers).
l) In view of the CAG Observations, Clarifications from CSIR and based on the recommendations of the Finance & Accounts Section as approved by the Competent Authority, CSIR-CFTRI was constrained to withdraw the grant of Non-Practicing Allowance vide CSIR-CFTRI O.M. dated 20/12/2019.
4. In his rejoinder to the reply, the applicant has pleaded as follows: - 10
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a) The NPA is granted to the doctors practising medicine and Doctors practising veterinary medicine having regard to the Statutory compulsions. Veterinary Doctors are required to get themselves registered under the State Veterinary Councils coming under the Veterinary Council of India established under Indian Veterinary Act 1984 under Section 24 of Chapter-Ill of the said Act.
b) Under Section 57 of Chapter-VIII, nobody could practice veterinary medicine unless he is a registered Veterinary practitioner. In addition to the above, Govt. of India has framed rules in exercise of its powers under section 17 of the Prevention of Cruelty to Animals Act 1960 and the said rules are called as "Breeding of and Experiments on Animals (Control and Supervision) Rules 1998". The CFTRI is an establishment as defined under Rule 2(d) of the said rules. It breeds animals and is a breeder within the meaning of Rule 2(b). It conducts experiments as defined under Rule 2(e). It has institutional animal's ethics committee as defined under Rule 2(f). It also conducts collaborative research as defined under Rule 2(h). It is a registered establishment for breeding of animals as stated in Rule 3.
c) Applicant is the member Secretary of the Committee stated in Rule 2(f). He is described as a Veterinarian by the Govt. Of India having regard to the mandate of Rule 9 of Annexure A-18. To practise veterinary science, a registration and degree in veterinary science is mandatory.
d) Applicant is certified as Veterinarian and having regard to his qualification and registration with the Veterinary Council of India, he 11 OA.No.145/2020/CAT/Bangalore Bench has been appointed as Member Secretary. There is a Statutory requirement and a statutory obligation on the breeding institute which conducts experiments on Animals to have a veterinarian involved in the care of animals to be a part of the Committee. The Govt. of India by its communication dated 01/02/2019 has reiterated requirement of full-time veterinarian in all Institutes and Breeding centres. In compliance of Annexure A -21 the Third Respondent issued a written order to treat/appoint the Applicant as a full-time veterinarian.
e) There is a statutory compulsion on the Third Respondent to maintain a practising veterinary doctor. Non-practising allowance is given when a medical practitioner or veterinary doctor is required to discharge his professional duties. Non-practising allowance is one item allowed to medical practitioners and to veterinary practitioners. The non-
practising allowance ought to have been extended to the Applicant. On pointing out the omission to extend the same, it was allowed in the case of Applicant. When the pay rules allow the NPA, and when the advertisement at Annexure A-1 clearly states application of pay rules, it is not open to the Respondents to avoid the said payments. The NPA is allowed to Scientists from the medical practitioner streams. In other Organisations, Veterinary Doctors are also extended with NPA. There is no special reason not to extend the said NPA in the CFTRI. Respondents admit that they employ MBBS and BVSc qualified doctors, payment of NPA is a must for the reasons already stated.
f) The limit of 44,250/- paid under the head of NPA as per the 5th CPC has been revised to 85,000/- under the 6th CPC w.e.f 01/01/2006. It was 12 OA.No.145/2020/CAT/Bangalore Bench further revised to 2,37,500/- under the 7th CPC from 01/01/2016. The respondents failed to appraise the CAG auditors of the correct facts and rule positions which are applicable for extension of NPA. The statute cannot be flouted either by the Respondents or by them at the instance of CAG.
g) The fact that applicant was appointed without NPA was illegal. The said illegality was cured by recommendations made by the 170th Governing Body held at CSIR vide OM dated 02/06/2008.
h) Applicant is a registered veterinary doctor. The post held by the applicant was clinical one which is whole time post. It is also not unknown fact that there is ample scope of private practice beyond normal duty hours which calls for necessary rule for prohibition in public interest. Applicant fulfils all the 04 conditions and entitled to NPA. Hence the contention that applicant does not full fill eligibility to get NPA is devoid of merits and same be rejected.
5. Heard learned counsels for the parties and perused the pleadings made by them.
6. In the present case, the applicant is working as Principal Scientist in CSIR-
CFTRI, Mysore. He had earlier been granted Non-Practicing Allowance w.e.f., 28.02.2008 on the basis of approval of the CSIR Governing Body in its 170th meeting held on 28.01.2008. Grant of this Non-Practicing benefit was in order to attract medical and veterinary professionals for CSIR R & D programmes in drug and pharmaceuticals, bio-medical and biotechnology areas. This benefit was extended to Scientist Gr. IV having MBBS & MD, 13 OA.No.145/2020/CAT/Bangalore Bench MBBS & Ph.D, BVSc & MVSc and BVSc & Ph.D. qualifications, subject to the condition that Basic pay + NPA+DP does not exceed Rs. 44, 250/- per month.
7. The Rates of Non-Practicing Allowance for veterinary posts were revised by the Government of India, Ministry of Finance vide OM dated 07.07.2017 (Annexure-A10). As per these revised rates. the NPA entitlement was revised to the rate of 20% of basic pay in the revised pay structure in vogue based on the recommendations of the 7th Central Pay Commission., as contained in the CCS(RP) Rules, 2016, subject to the condition that the sum of basic pay and NPA does not exceed Rs. 2,37,500/-. The conditions specified for grant of NPA included the following: -
"NPA shall continue to be restricted to those veterinary posts for which minimum qualification of a Degree of B.V.Sc & AH with registration in the Veterinary Council of India is required. The following conditions shall also be fulfilled as hitherto: -
i. The post is a clinical one.
ii. The post is a whole-time post.
iii. There is ample scope for private practice, and
iv. It is necessary to prohibit private practice in public interest."
8. The Respondents have stated that the duties performed by the applicant at CSIR-CFTRI are purely R&D in nature and he is not performing in any way the duties of a 'Clinical Post' in terms of above definition. 14
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9. A perusal of the impugned OM dated 20.12.2019 (Annexure -A12) vide which the NPA being paid to the applicant has been stopped states as follows: -
"The Director, CSIR-CFTRI, is constrained to stop payment of Non- Practicing Allowance to Dr. S.P. Muthukumar, Principal Scientist, with immediate effect from salary of December 2019 onwards in accordance with the Ministry of Finance OM cited under reference above."
10. The impugned order does not specify any reason for stopping of payment of NPA to the applicant, except stating that it is in accordance with the OM F. No. 12/2/2016-EIII dated 7th July 2017 of Ministry of Finance. The order is cryptic and does not give the detailed reasons as to why the grant of NPA has been stopped from the salary of December 2019 onwards.
11. The reasons for stopping the NPA have only now been given in the reply statement furnished by the respondents.
12. The law is well settled that the validity of an order has to be judged by the reasons stated in the order itself and not by anything else, otherwise, an order bad in the beginning, by the time it comes to the Court on account of a challenge, gets validated by additional grounds later brought out. This was held in Bharati Rathore Vs. UOI and others in W.P.(C) 5229/2019 in the High Court of Delhi in their order dated 20th May 2021.
13. The Honourable Apex court in Commissioner of Police v. Gordhandas Bhanji, 1952 AIR 16, 1952 SCR 135, vide order dated 23.11.1951, has held as follows:
"...public orders, publicly made, in the exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the 15 OA.No.145/2020/CAT/Bangalore Bench officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself ".
14. Reference may also be made to the decision of the Apex Court in Mohinder Singh Gill and Anr. v. Chief Election Commissioner, New Delhi and Ors. (1978) 1 SCC 405, where the Apex Court reiterated the above principle in the following words:
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out."
15. The Honourable Apex court in East Coast Railway v. Mahadev Appa Rao., Civil Appeal No. 4964 of 2010, vide orders dated 7 July, 2010 observed as follows:
"..There is no quarrel with the well-settled proposition of law that an order passed by a public authority exercising administrative/executive or statutory powers must be judged by the reasons stated in the order or any record or file contemporaneously maintained. It follows that the infirmity arising out of the absence of reasons cannot be cured by the authority passing the order stating such reasons in an affidavit filed before the court where the validity of any such order is under challenge".
16. In the present case, the impugned order is cryptic and does not provide any specific reason for the respondents to stop the payment of NPA to the applicant. Accordingly, this OA is disposed of with the following directions: 16
OA.No.145/2020/CAT/Bangalore Bench ORDER OM dated 20.12.2019 (Annexure-A12) is quashed and the matter is restored to the file of the Respondent No. 3 to consider the matter afresh and pass appropriate reasoned and speaking order in accordance with law after providing an opportunity of personal hearing to the applicant. All the rights and contentions of the parties are left open.
17. The present OA is disposed of with the above directions. However, there shall be no order so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
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