Central Administrative Tribunal - Delhi
Smt. Anand Bala vs Union Of India & Others Through on 31 October, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA NO. 358/2008 And OA NO. 1120/2008 New Delhi, this the 31st day of October, 2008 HONBLE SHRI JUSTICE V.K. BALI, CHAIRMAN HONBLE SHRI L.K. JOSHI, VICE CHAIRMAN (A) OA NO. 358/2008 1. Smt. Anand Bala w/o Vijay Bahadur Singh Mehora, R/o type-III/114, FRI, Dehradun. 2. Shri G.S.Rana, S/o Shri Ghanta Singh Rana, R/o 61, FRI, Dehradun. 3. Shri S.K.Sheel, Research Assistant Grade-I, ICFRE, Dehradun, S/o late Shri P.C.Sheel, R/o A/5 Lourie Road, FRI. 4. Shri Hari Singh Rawat, R/o B-61, FRI, Dehradun. 5. Shri H.S.Bedwal R/o B-67, FRI, Dehradun. 6. Shri Harshwardan Sharma, R/o 263, Dakra Bazaar, Dehradun. 7. Shri Vijay Singh Thapa, R/o House No.2, Dakra Bazaar, Cantt Road, Dehradun. 8. Kum. Sharad Kukreti R/o 140/4, Khurbura, Dehradun. 9. Smt. Madhu Patwal, R/o 25, Bhandari Bagh, Dehradun. 10. Smt. Nirmal Rao, 42, Kashmere Colony, Niranjan Pur, Dehradun. 11. Smt. Jamuna Lama, 77, Nesbillah Road, Dehradun. 12. Shri D.B.Gurung, 18, Garhi Cantt. Dehradun. 13. Smt. Nirmal Yadav, 18, Sri Enclave, Pandiwari, Dehradun. 14. Smt. Subhash Kaur, 39, Gobind Garh, Dehradun. Applicants OA NO. 1120/2008 1. Shri Nirmal Ram, Scientist D Ecology & Environment Division, Forest Research Institute, ICFRE, Dehradun (Uttarakhand). 2. Shri Vijay Singh Yadav, Research Assistant Grade-II, Wood Preservation Disciplines, Forest Research Institute, ICFRE, Dehradun (Uttarakhand). 3. Shri Roshan Singh Technical Assistant Grade I Wood Anatomy Discipline, Forest Research Institute, ICFRE, Dehradun (Uttarakhand). 4. Shri Vineet Dobhal, Mazdoor, FS&LR Division, Forest Research Institute, ICFRE, Dehradun (Uttarakhand). Applicants (By Advocate: Sh. G.D.Gupta, senior counsel with Sh. S.K.Sinha) Versus Union of India & Others through 1. Secretary, Ministry of Environment & Forests, Paryavaran Bhawan, CGO Complex, New Delhi. 2. Secretary, Department of Personnel & Training, Ministry of Personnel, Public Grievances And Pensions, North Block, New Delhi. 3. Indian Council of Forestry Research and Education through its Director General, Post Office, New Forest, Dehradun (Uttarakhand). Respondents (By Advocate: Sh. K.C.Mittal, senior counsel with Sh. Sanjay Katyal) ORDER Justice V. K. Bali, Chairman:
By this common order, we take in hand for disposal two Original Applications bearing OA No.358/2008 in the matter of Smt. Anand Bala & Others v Union of India & Others, and OA No.1120/2008 in the matter of Nirmal Ram & Others v Union of India & Others. The background of both the cases appears to be same, but the reliefs asked for in the two Applications are not identical and, therefore, facts of both cases and entitlement of the applicants for the reliefs asked for have to be dealt with separately. Before we may, however, do that, the backdrop of events culminating into filing of the present Applications would need a necessary mention.
2. The Government of India, it appears, in conformity with various international treaties and covenant relating to the conservation of forest and wild life has taken various steps to address the issue of rapid depletion of forest and the consequent ecological imbalance resulting in floods and uneven monsoon. In the pre-independent India, the government with an intention to promote scientific forestry, created an Institute in the name of Imperial Forestry Research Institute, which came into existence in 1906 and enjoyed the status of first Forest Research Institute in the whole South East Asia. It appears that the Government of India re-organized the Forest Research Institute and converted the same into Indian Council of Forestry Research and Education (ICFRE). The ICFRE and its Research Institutes were converted from a Central Government department to an autonomous organization w.e.f. 1.6.1991 vide Government of India, Ministry of Environment and Forests notification (published in Gazette of India) No.1-6/87-FE dated 30.5.1991. The ICFRE came to be registered as a Society under the Societies Registration Act, 1860. The employees of ICFRE and its Institutes were put on compulsory deputation with ICFRE Society vide orders dated 13.12.1991 with an option to be absorbed in ICFRE Society or else be declared surplus and re-deployed in other Central Government organizations. When repeated options given to the employees brought no tangible results and those who had thus not opted were declared surplus, an Original Application bearing OA No.1372/2001 by Van Anusandhan Sansthan Karamchari Sangh through its General Secretary and 9 employees of the Institute came to be filed before this Tribunal seeking quashing of the orders declaring them surplus for their re-deployment in other Government organizations, and directing the concerned respondents to maintain the applicants position as existed prior to passing of the impugned orders with all its consequences, as also to declare the action of the respondents in issuing the said impugned orders in declaring the applicants surplus as illegal, arbitrary, untenable in law, discriminatory and in violation of the principles of natural justice. The applicants sought yet another direction to be issued to the respondents to treat the same terms and conditions as the employees of other departments of the Government of India in similar circumstances. The last relief as mentioned above, which alone, it appears, was pressed during the course of arguments, reads as follows:
further direct the respondents to treat the same terms & conditions as the employees of other department to the Govt. of India have treated in like circumstances & also direct the Respondent No.1 to allow the like circumstances & also direct the Respondent No.3 without any deputation allowance till their superannuation etc. with consequential benefits. The OA referred to above was dismissed by order dated 3.1.2003. We may, at the outset, mention the reasons that prevailed with the Tribunal in dismissing the Application, which have been recorded in paras 8 and 9 of the judgment. The same read, thus:
8. We have carefully considered the matter and perused the documents brought on record. The applicants, working with Indian Council of Forest Research and Education and an Association representing them are aggrieved that they have been rendered surplus. When the same Council was converted into a registered society, the staff were sent on deputation and permitted to exercise the option to join the Society. To start with 1448 employees joined the society with 838 persons staying back as Govt. employees. Thereafter more people joined the society, leaving 651 individuals remaining aloof, which included the applicants. There persons are found to have been given as many as four opportunities to decide their future with the society. They did not do so. Obviously therefore they remained Govt. servants and when the Govt. decided by its order F.No.2-63-2001-FE of 6.5.2002 to commission a number of posts, including those held by the applicants have been rendered surplus. The applicants have sought to forestall by this OA, requesting that they should be kept on compulsory deputation as was done and permitted to demit office in that manner, on their superannuation. Respondents have justifiably contested the claims. Applicants also do not deny that they have been given options to join the society on 28.2.96, 31.12.96 and 21.5.98, but they had not done so, each time seeking some clarification or other and claiming that the respondents were holding vital information. It is also on record that the respondents had supplied to them, following the decision of the Allahabad Bench of the Tribunal in OA 660/92, Compendium of Rules and Regulations for the employees. This also has not satisfied them. Their only complaint is that the resolution of 22.6.90, converting the autonomous organization into a society has not been communicated to them which was improper. From the perusal of the said communication dated 22.6.90, brought on record by the respondent it is evident that it was only a letter intimating that the Govt. decided to convert the organization into a society. We are not at all convinced that this letter has affected the rights and service conditions of the applicants in any manner. On the other hand, we are confirmed in our view that the applicants have only been taking an intransigent attitude which no organization, much less a Govt. organization could be expected to put up with. It definitely is not for a minority of the staff to dictate terms as to how the concerned organization should function, when the Govt. at the highest level in spite of the baseless protestation by the applicants had taken a policy decision. It is also not for the staff to decide how they would like to be governed in the organization. While it may be justified by the staff to demand that their rights are not prejudicially affected the same right does not extend to directing that the organization should subjugate its interest to succumb to their demand. This is exactly what the applicants in this OA demand. In the facts and circumstances of the case as brought out on records it is clear that the respondents have acted fairly and reasonably. Nothing further could have been demanded by them.
9. We also note that the applicants are making a request that they be given status of compulsory deputationists with the Council/Society till their date of superannuation as in the case of ICAR, CSIR and Nuclear Power Corporation. The respondents have very clearly indicated that functions-wise and structure-wise the position in ICFRE is different from the other organization. We find the same to be so. We may mention that one of the pleas raised by the applicants in support of their claim was that vide resolution dated 22.6.1990, ICFRE was converted into an autonomous body, and, therefore, service conditions of the applicants had to be such as were applicable to employees of other autonomous bodies, similarly sent to such autonomous organizations from the status of Central Government employees. The Tribunal with regard to resolution dated 22.6.1990 observed that the applicants were harping on a non-existing document. Aggrieved, the applicants in the OA aforesaid filed a writ petition bearing No. WP(C) 1178/2003 in the High Court of Delhi. Mr. Sanjay Katyal, counsel representing the respondents (inadvertently mentioned to be counsel for the petitioners) on 24.7.2006 made a statement, which reads as follows:
The Central Government as a one time measure without it being a precedent is willing to absorb all the petitioners including all other eligible employees on deputation, who exercise their option to be absorbed with ICFRE within 30 days from today. The absorption shall be prospective. It is made clear that the period of deputation spent by the petitioners or other eligible employees who are similarly placed in service on compulsory deputation from Central Government, would be taken into consideration as past service for the purpose of determining the qualifying period for grant of pension. Pension is to be paid by ICFRE.
I have made this statement on the instructions of Mr. S. P. Singh, Secretary, ICFRE, who is present in Court. Shri S. P. Singh, Secretary of ICFRE, made a statement on the same day, which reads as follows:
I have heard the statement made by Mr. Sanjay Katyal, Central Government Standing Counsel, on my instructions. It would be the responsibility of the ICFRE to make the payment of pensionary benefits to eligible employees including petitioners and others, who exercise the option for being absorbed with ICFRE within 30 days from today. We shall also circulate and inform other employees/ deputationists of this last chance being provided. Due provision and necessary financial arrangement for pensionary benefits would be made by us with assistance from the Central Government. On the statements as reproduced above, the Division Bench of the Honble High Court recorded the order in the writ petition on the same day, relevant part whereof reads as follows:
Counsel for the petitioners at the outset submits that on the 12th line of the order dated 5.7.2006, it is mentioned Respondents have chosen to abolish 647 posts. This, he says, should be corrected to be Respondents have chosen to abolish 729 posts (630+99). Learned counsel for the respondents accepts this error. Accordingly, our order dated 6.7.2006 be modified to read Respondents have chosen to abolish 729 posts (630+99).
Learned counsel for the respondents Mr. Sanjay Katyal, Standing Counsel, Central Government and on behalf of ICFRE, on instructions from the Secretary, ICFRE Mr. S. P. Singh, who is present in Court, says that he is instructed to make statement. Let his statement be recorded without oath.
Counsel for the parties have nothing further to add. Parties shall abide by the statements made today in Court. In terms of the statements made, nothing survives in this petition.
Petition stands disposed of. It appears that CM No.10352/2006 came to be filed in the writ petition aforesaid in which an order came to be passed on 25.8.2006, relevant part whereof reads as follows:
As regards the remaining contents of the application, we are of the view that petitioners should first exercise their option and act on it and thereafter, whatever their legitimate grievances, can be represented to the Central Government and/or appropriate Appellate Forum and decided.
Mr. Sanjay Katyal, learned counsel for the respondent legitimately points out that the petitioners on the one hand are not exercising their option and want to continue with their current position.
Mr. Rajeshwar K. Gupta, learned counsel for the petitioners prays that 15 days time be granted for exercise of option as the option was circulated on 9th August, 2006. Learned counsel for the respondent has no objection to the same. Accordingly, time to exercise option is extended by 15 days i.e. latest by 08 September, 2006. Proceedings before the High Court in the final orders passed in the writ petition as also the CM aforesaid would manifest that the matter was given quietus by the respondents willing to give yet another opportunity to the petitioners to be absorbed in ICFRE and the petitioners accepting the same in a time bound manner. The matter thus appears to have come to an end on consensus arrived at between the parties. The order in the civil misc. application dated 28.5.2006, insofar as it mentions that As regards the remaining contents of the application, we are of the view that petitioners should first exercise their option and act on it and thereafter, whatever their legitimate grievances, can be represented to the Central Government and/or appropriate Appellate Forum and decided, in our view, at the most, gives liberty to the petitioners to ventilate their grievances that may possibly arise after they give their option either to stay in ICFRE or to be absorbed in other Central Government organizations. However, petitioners challenged the said order in the Honble Supreme Court in SLP No. CC 12886/2007. In the special leave to appeal, it was inter alia pleaded that the Government had taken a Cabinet decision dated 5.6.1990 and ICFRE was given autonomous status for speedy disposal of matters by taking independent decisions. ICFRE after acquiring the status of autonomous body vide notification dated 30.5.1991, without making/circulating any rules/terms and conditions governing the service conditions of its employees, asked the employees to opt for their merger in the ICFRE on permanent basis. Since the employees were neither prepared nor communicated the service conditions in autonomous ICFRE, this state of fluidity for option remained undecided for quite a long time, hence a large number of employees did not opt. It is also pleaded that some of the employees aggrieved of the act of ICFRE approached this Tribunal at Allahabad Bench, which directed the ICFRE to give compendium of the Council (set of rules and regulations) vide order dated 27.7.1993. Accordingly, in compliance of the order of the Tribunal, a compendium of rules was supplied to the employees, but it was incomplete for relevant service conditions including pensionary benefits. While giving reference of the impugned order passed by the Tribunal which was challenged before the High Court, with the result already indicated above, it was also pleaded that the respondents had submitted incorrect facts before the Tribunal with regard to the ICFRE not being either structure-wise or function-wise analogous to ICAR and/or CSIR, and that as per Cabinet note the ICFRE is analogous to ICAR/CSIR, and the Cabinet directive could not be overlooked by the Executive. While elaborating the plea aforesaid in ground (K) of the grounds enumerated in para 5, it had been mentioned/pleaded as follows:
K. Because the conduct of the respondents ICFRE had always been unfair and against the petitioners, hence, when a question was put regarding analogy of the Council before Central Administrative Tribunal, they had specifically denied, that the Council is neither structure-wise nor function-wise analogous to ICAR and/or CSIR, affecting the mind of the Court resulting the dismissal of OA. However, it is against the letter and spirit of the cabinet note where it has been envisaged analogous to ICAR/CSIR, which is indicative of the fact that the merits of the matter have never been touched by the Court of law. The SLP was dismissed by the Honble Supreme Court vide order dated 8.1.2008 by passing the following order:
Inordinate delay of 403 days has not been explained properly. Permission to file SLP is declined. Special leave petition is dismissed. In the backdrop of the facts as fully detailed above, present two Original Applications bearing OA Nos.358/2008 and 1120/2008 have been filed. Even though, as mentioned above, the background of the two cases may be same, the reliefs asked for are not identical. The relevant facts of both Applications would thus need necessary mention.O.A. NO.1120/2008
3. While referring to establishment of Forest Research Institute in the year 1906, which was reorganized into ICFRE under the Ministry of Environment and Forests, and the objective behind the reorganization, it has inter alia been pleaded that in the year 1986, when the reorganization took place, a resolution was passed by the Government of India, MoEF on 31.12.1986 wherein it was provided that the institution would be developed on the lines of other scientific institutions and the personnel policies would also be comparable to that of other scientific institutions in order to attract best talent to the institution. The said objective was, however, not followed in its true spirit inasmuch as the council and its staff members were never treated at par with those of other scientific institutions, such as ICAR and CSIR, and the UGC pattern which was made applicable to ICAR, was not made applicable in the case of ICFRE or its constituent institutes, like FRI University. On 5.6.1990, the respondents came up with a proposal to grant autonomy to the ICFRE and its institutes and a note for the Cabinet was prepared for approval. The idea behind the grant of autonomy was that the ICFRE and its management committee, which were only advisory in nature, required autonomy so that for every decision the management need not refer the same to nodal Ministry. The counsel was to be run on the same lines as ICAR and CSIR, as would be evident from para 4 of the note for the Cabinet, which also deals with creation of scientific posts, finalization of recruitment rules and functional freedom to ICFRE and its institutes. The said note was finally approved by the Cabinet on 5.6.1990 (Annexure A-3). It is the case of the applicants that these documents were suppressed by the respondents and they have all along denied existence of the same on affidavits, and that the said documents have now been received by the applicants from MoEF under RTI in the year 2006. Vide order dated 30.5.1991, in pursuance of the aforesaid decision, the respondents constituted the ICFRE as an autonomous institution and the staff and employees under ICFRE were treated as on compulsory deputation with the Society, with service conditions protected and also provided for seeking option from the employees concerned for becoming regular employees of the Society. It is the case of the applicants that the respondents adopted a dubious mechanism and the autonomy, which was granted to ICFRE to strengthen the forestry research and education, was in fact used to weaken the council and divide the staff and employees of the council by using coercive measures, and that options were sought from time to time and every time threat was followed that the employees would be declared surplus or sent to far flung areas or terminated, if they did not opt for the autonomous council, and further that those who did not exercise their option in favour of ICFRE were subjected to step motherly treatment in the matters of promotion, transfer and other service conditions, though they were treated on compulsory deputation. It is further their case that the employees who did not opt for absorption in ICFRE are not against the grant of autonomy to the Council, but they only want that their service conditions should not be altered to their disadvantage especially in the matters of terminal benefits and pensions. It is the case of the applicants that the respondents ought to have framed rules and regulations governing service conditions of their employees and also the regulations for governing pension and terminal benefits at the threshold before asking for exercising the option, and that in fact, they put the cart before the horse, without disclosing the terms of their absorption, their service conditions after absorption and the source of their funding for pension and terminal benefits. It is pleaded that the compendium of rules and regulations of ICFRE received in January, 2008 under RTI contains very limited information on service conditions and terminal benefits even after 17 years of its existence, which would show the callousness and concern of the management regarding present/future of the employees. By way of illustration, it is pleaded as to how things turned out in the matter of pension. It is stated that so far the respondents have not been able to evolve any scheme for pension though they have claimed to continue CCS (Pension) Rules, and the Government of India very categorically refused to provide the source for funding of pension and pensionary benefits. It is then stated that no utilization of grant-in-aid can be permitted for meeting retiral dues of pensioners, and the Government has also refused to stand a guarantor for any default on this count by the ICFRE. It is further stated that the respondents have been utilizing the Government of Indias lump sum contribution towards the absorbed employees for meeting the pensionary liabilities and the funds are depleting at a tremendous speed, and that the Council has no other source of funding except grant-in-aid, and further that in such situation of uncertainty the employees of the Council could not exercise their option for getting absorbed in the autonomous body. The applicants have then in tabular form tried to project the difference between the ICFRE and ICAR/CSIR in the matter of autonomy in para 4.15 of the Application. It is their case that after grant of autonomy, things did not improve and the Council which is essentially a research organization is often headed by the officers belonging to officers belonging to Indian Forest Service/State Forest Service who are neither career scientists nor teachers, and in fact, employees of ICFRE are suffering on account of group bias, as their fate is dependent at the whims and fancies of the officers belonging to Indian Forest Service, who have no permanent stake in the council, and that the autonomy is, therefore, a misnomer, which has only been used as a weapon to suppress and exploit the employees of the ICFRE, which includes scientific, technical and other staff. It is then pleaded that the respondents treated the applicants on compulsory deputation from 1991 to 2001, but thereafter the respondents declared them surplus as a realization of threat as meted out to them on earlier occasions, but the fact remains that the posts were continued thereafter also in the sense that the applicants were asked to discharge same duties and responsibilities at the same place of posting. This action was, however, made the basis for denying them promotions etc., and it has now been revealed by the DOP&T that only in October, 2007 the applicants have been actually put on surplus roll and are now sought to be redeployed and in some such cases at the fag end of their career. The DOP&T has admitted in its correspondences that actually the applicants are being treated as surplus from 2007, and the logical conclusion of this arbitrary action is that the applicants are being deprived of seven years of seniority in service either in the parent organization or in the organization they will be redeployed at a later date.
4. In the pleadings made in the OA, reference is then to filing of OA No.1372/2001 and dismissal of the same. It is, however, pleaded that the OA was dismissed as this Tribunal was thoroughly misled by the respondents and false affidavits were filed stating that the said Cabinet decision which enjoined the respondents to develop ICFRE on the lines of ICAR and CSIR was not at all in existence. It is the case of the applicants that the said judgment would not come in their way as they were not parties to that case nor were they members of the union at that time. It is also emphasized that the said judgment was completely based on erroneous facts and considerations and this Honble Tribunal was thoroughly misled even as regards to abolition of posts, and that it was falsely averred before the Tribunal that 650 posts were abolished which is not correct., as these posts were lying vacant for a long time and were not of the applicants, as would be evident from the document dated 29.11.2004 (Annexure A-6). The applicants have then made reference to the writ filed against the order of the Tribunal in the aforesaid OA, and the result thereof, but while giving reference of the civil misc. application mentioned above, it is the case of the applicants that the Honble High Court was pleased to grant them liberty in case of any grievance to approach the appropriate forum, inasmuch as it was observed that the petitioners should first exercise their options and then only raise their grievances. The applicants contended before the respondents that they would opt to remain Central Government employees and that they should be treated on compulsory deputation as in the case of employees of ICAR and CSIR. The said request was declined and by the impugned order dated 1.10.2007 the applicants have been sought to be declared surplus and redeployed by the DOP&T. It is the case of the applicants that once, the question of exercising option was made available by the Honble High Court, the issue became res integra as the order declaring them surplus vide orders dated 1.1.2001 and 19.2.2001 was automatically rendered without any force and was impliedly set aside, and that the order dated 1.10.2007 would, therefore, give them fresh cause of action against which the present Application has been made. Present Application has thus been filed against the impugned order dated 1.10.2007 whereby the applicants have been rendered surplus by the DOP&T. It is the case of the applicants that it would give a fresh cause of action to them. The applicants, it is stated, have been treated to be on compulsory deputation so far and even otherwise they are entitled to be treated as such. The pertinent question that has been raised for decision by us is that when the respondents have not followed the decision of the Union Cabinet while deciding the structure and working as ICFRE, which was mandated to be on the lines of CSIR and ICAR, the very foundation of the entire exercise of declaring the applicants surplus is void ab initio and is liable to be quashed and set aside. It is the case of the applicants that it is an undisputed fact that in CSIR and ICAR, the persons who did not opt for absorption, they were and have been treated on compulsory deputation till their superannuation from service. Upon discovery of the facts as fully mentioned above, the applicants made representations to the respondents, but the respondents instead of doing the needful, have only come out to say that it is open to the employees to still opt for ICFRE, but the same is without any assurance towards the apprehension of the employees concerned regarding their pension and terminal benefits. The representation of the applicants has not been responded and hence, the present Application.
5. The reliefs sought for in the Application are to quash and set aside the impugned order dated 1.10.2007, whereby applicants have been declared surplus, and direct the respondents to crystallize, formulate and issue regulations, governing service conditions on the lines of the stated objective of the Union Cabinet decision of June, 1990 for grant of autonomy to ICFRE on the analogy of CSIR and ICAR, and to formulate a viable pension rule with adequate security and safety for the employees of the ICFRE before seeking option for absorption in the ICFRE. By way of interim relief, it is prayed that the operation of order dated 1.10.2007 be stayed whereby the applicants have been declared as surplus by the DOP&T and their names are being considered for redeployment under the surplus staff rules.
6. Pursuant to notice issued by this Tribunal, ICFRE, the 3rd respondent herein, has entered appearance and filed its counter reply through DCF, Van Vigyan Bhawan, New Delhi. While contesting the cause of the applicants, it has inter alia been mentioned in the counter reply that ICFRE and its Research Institutes were converted from a Central Government department to an autonomous organization w.e.f. 1.6.1991 vide notification dated 30.5.1991. ICFRE is registered as Society under the Societies Registration Act, 1860. Services of all the Central Government employees working in ICFRE and its institutes were placed on compulsory deputation with the ICFRE Society on the Central Government terms and conditions of service, which arrangement was to continue till such time as the Central government employees on compulsory deputation were absorbed permanently in the services of ICFRE Society on the basis of option exercised by them. In 1991 the Government approved the Memorandum of Association, bye-laws and rules of ICFRE, and ICFRE framed its own rules and regulations, approved by the board of governors and Government of India. According to these rules, the employees absorbed in regular service of ICFRE are eligible for promotion in the ICFRE and its institutes. The date fixed by the Central government for permanent absorption of the Central government employees in the service of ICFRE Society was 1.4.1993, and it was also made clear that the names of employees who opt to continue as Central Government employees would be sent to the surplus cell for redeployment elsewhere in other departments. After getting satisfied with the rules and regulations the majority of employees (1480) exercised their options for absorption and they were accordingly absorbed in the service of ICFRE Society w.e.f. 1.4.1993. The Ministry of Environment and Forests, it has been pleaded, has taken a number of steps including meeting with the so called Van Anusandhan Sansthan Karamchari Sangh (VASKS) to persuade the employees to join the regular services of ICFRE Society in the interest of the organization as well as their own benefit. Up to the year 2000, the Government had given as many as five chances to these employees to join the services of ICFRE, but only a few employees came forward to join ICFRE. The remaining Central Government employees insisted that they should be allowed to continue working in ICFRE on deputation till their retirement. They also insisted that they may be given the benefit of promotion etc. at par with the regular employees of ICFRE. The request was examined in consultation with the DOP&T and they categorically advised that the Central Government employees cannot be allowed to continue on deputation indefinitely. The Government of India finally declared the Central Government employees on compulsory deputation in ICFRE as surplus and forwarded their names to the DOP&T (Central Surplus Staff Cell) for their redeployment elsewhere in other departments vide OM dated 1.1.2001 and 19.2.2001. Reference is then to OA No.1372/2001 filed by VASKS and the reliefs prayed therein. With regard to the plea raised by the applicants that the respondents had in the proceedings of the OA aforesaid given false affidavits, it is pleaded that the said plea is absolutely wrong and misleading, and that the Ministry of Environment & forests and ICFRE have neither overlooked the directions of the Cabinet nor misled the Tribunal, and further that these issues have been dealt with by the Tribunal and the matter has attained finality till the Apex Court. It is then pleaded that it would be evident from judgment dated 3.1.2003 that a copy of the resolution dated 22.6.1990 (demanded by the applicants) was brought on record by the respondent and it was only a letter intimating that the Government decided to convert the organization into an autonomous society. The Bench observed that We are not at all convinced that this letter has in any way affected the rights and service conditions of the applicants in any adverse manner. Reference is then made to the writ petition filed before the Delhi High Court and the prayers made therein. Mention of prayer (d) made in the petition, at this stage, be only made. The same reads thus:
d) To treat the petitioners and other surplus employees in the same manner and on the same terms and conditions as the employees of other Departments in Govt. of India have been treated in the like circumstances and may also direct the Respondent No.2 to allow the applicants to remain on compulsory deputation to the Respondent 3 with all consequential benefits including promotions and without any deputation allowance till their superannuation. By referring to orders passed by the Division Bench of the Honble High Court, it is stated that nothing survived in the matter in view of the statements made by the counsel representing the parties. By making a reference to civil misc. application bearing CM No.10352/2006 and the order dated 25.8.2006 therein, it is mentioned that the applicants should first exercise their option and act on it, and thereafter, whatever their legitimate grievances, could be addressed by the concerned authorities. On the request of the counsel representing the petitioners, the Honble High Court extended time to exercise option by 15 days, i.e., latest by 8.9.2006. Accordingly the date of exercise of option by surplus Central Government employees was extended up to 8.9.2006, and in compliance of the High Court order only 96 employees exercised options and were absorbed in the service of ICFRE w.e.f. 9.9.2006. Rest of the employees (397) failed to comply with the orders passed by the High court and did not opt to absorption in the regular service of ICFRE. The surplus cell of DOP&T have taken these employees on their roll for redeployment elsewhere in other Central Government departments vide letter dated 1.10.2007. The posting orders in respect of approximately 70 employees have been received and communicated to them for necessary action. DOP&T also issued posting orders in respect of two scientists, namely, Dr. Y.P.Singh and Smt. Malabika Ray. On behalf of FRI Mazdoor Union and some of the representatives again, a writ petition was filed before the Honble Delhi High Court to stay the implementation of DOP&T letter dated 1.10.2007, which was allowed to be withdrawn on the statement made by the counsel with permission to seek remedy before appropriate forum in accordance with law. It is thereafter that the employees filed a petition seeking special leave to appeal before the Honble Supreme court, reference whereof has already been given above. It is the case of the respondents that the applicants have opted to remain as Central Government servants and are not willing to join ICFRE as an autonomous body in spite of several opportunities given by the Government and the Honble High Court, and that they are on DOP&T rolls awaiting redeployment in other departments, and since they are not the regular employees of the ICFRE, they are not eligible for promotion under ICFRE rules and their request for indefinite deputation has been declined by the DOP&T long back. Insofar as the plea raised by the applicants with regard to protection of pensionary benefits is concerned, it is pleaded that the Honble High court considered the request that some of the employees are keen to join the ICFRE if their pension is protected. It has been explained that the ICFRE is having its own pension scheme and Pension Fund Corpus. So far more than 450 employees of ICFRE and its Research Institutes in the country belonging to Groups A, B, C and D have retired from the regular service of ICFRE and are getting pension/family pension from the pension fund of ICFRE, and in addition, approximately 1700 employees are working in ICFRE and its Research Institutes on pensionable jobs and their services and pensionary benefits are secured in ICFRE. It is pleaded that the management of ICFRE is fully responsible about protection of pension/family pension and due provisions have been made in the Pension Fund Corpus till the last absorbee retired from the service of ICFRE Society. While justifying the difference in status of ICFRE and CSIR/ICAR or NPCIL, it is pleaded that ICFRE has been created to formulate, organize, direct and manage forestry research in the country; effect transfer of technologies to States and other user agencies including farmers; and also to oversee imparting of forestry education in the country; as also that forestry research education cannot be visualized in isolation from the territorial forests of the country, which are under the control of State Forest Departments; and execution of forestry research required suitable forest sites, and all out co-operation of the custodians of the forests, i.e., SFDs, and, therefore, the position in ICFRE is different from ICAR/CSIR or NPCIL. In ICFRE and institutes under it, approximately 255 scientists (Group A) and 65 IFS officers are working together. The selection procedure/recruitment rules for the posts of Director General/Deputy Directors General/Directors are same for the IFS officers and scientists. In addition a large number of research staff (Research Officers/Research Assistants) is also working. It is pleaded that the plea raised by the applicants that the ICFRE does not have autonomy is incorrect. Once again, while refuting the charge of the applicants that false affidavit was filed before the Tribunal in OA No.1372/2001, reference to para 4(j) of the counter reply filed in the OA aforesaid has been made, which reads as follows:
It is submitted that the Bharat Sanchar Nigam is an industrial organization whereas the ICFRE is scientific institution in the field of forestry research, education and extension. The terms and conditions of absorption and bye-laws of different organizations vary from each other. The case of ICFRE cannot be compared with ICAR, CSIR and Nuclear Power Corporation of India Ltd. (NPCIL). CSIR had never been a Government department and NPCIL which is under the Department of Atomic Energy was exempted from participation in the Surplus Cell Scheme. ICAR had decided to allow the permanent and quasi-permanent staff on Foreign Service with the Council who were already appointed against higher non-Government posts under the council to retain their lien under Government till March, 1971 or till the final date by which they were required to exercise their option for the Councils services was decided. The information available from ICAR does not show that the Government servants who were on deputation with ICAR on Foreign Service terms enjoyed the benefits of promotion and other facilities allowed to the regular ICAR employees. As such, their cases are not analogous to that of ICFRE. It is also pertinent to mention that the Central Government employees in ICFRE have been allowed promotions and facilities at par with ICFRE absorbees during the initial eight years even though they were not entitled to them under ICFRE Rules. The action taken by the government (i.e. to decide the employees as surplus) is strictly in accordance with the existing instructions issued by the DOP&T and after due consultation with the Department.
7. The applicants have filed rejoinder by and large refuting the defence projected by the respondents and reiterating the pleadings and contentions raised in the application.
8. Before we may evaluate, comment and determine the rival contentions of the learned counsel representing the parties on the issues involved in the case, we may mention that, at the very outset, Shri Mittal, learned Sr. Advocate representing the respondents has raised the plea that present Application would be barred by principles of res judicata. He contends that the precise controversy as involved in the present case, has since been subject matter of adjudication by this Tribunal in OA No.1372/2001, which received a quietus and thus came to be finalized by the statements made by respective parties before the Honble High Court of Delhi, confirmed by the Honble Supreme Court by dismissal of the SLP filed on behalf of Van Anusandhan Sansthan Karamchari Sangh & others. There is no dispute raised on behalf of the applicants that insofar as the core issue in the case is concerned, the same was subject matter of decision by this Tribunal in OA No.1372/2001. It is, however, urged that the decision that was rendered by this Tribunal in the OA aforesaid came into being because the respondents not only suppressed the vital documents, but also misled the Tribunal by filing false affidavits that such vital documents were not in existence. It is then urged that the applicants were not parties before this Tribunal or before the High Court or the Honble Supreme Court. It is further urged that fresh cause of action would accrue to the applicants in view of permission granted by the Honble High Court while disposing of civil misc. application No.10352/2006.
9. Taking the grounds of defence raised by the counsel representing the respondents in reverse order, we may mention that while disposing of writ petition No.1178/2003 on the statements made by the learned counsel representing the parties, it was observed by the High Court in the order dated 24.7.2006 that counsel for the parties had nothing further to add and that parties would abide by the statements made before the Court. It was further observed that in terms of statements made, nothing further survived in the petition. In civil misc. application No.10352/2006, after making a mention of some corrections that were required to be made in the order dated 24.7.2006 passed in WP No.1178/2006, it was observed that as regards the remaining contents of the application, the petitioners should first exercise their option and act on it and thereafter, whatever their legitimate grievances, could be represented to the Central Government and/or appropriate appellate forum and decided. We are of the firm view, as already observed, that the applicants, if at all, were given permission to ventilate their grievances, if any, only after they had given their options. It is quite obvious that such grievances, at the most, could be in case the applicants were to opt to stay back in ICFRE Society, with regard to their service conditions, promotions and the like. If they were not to opt to stay back in ICFRE and were to be redeployed in other Central Government organizations, the same could be for their proper adjustment on proper posts and pay scales. It is quite evident that the liberty to ventilate their grievances, if any, would pertain to the consequence of their staying back or being adjusted on redeployment. In the OA culminating into orders passed by the High Court, the primary plea of the applicants was to stay back in ICFRE on deemed deputation till they were to superannuate. This is the precise plea raised in the present OA as well. The applicants, in our considered view, were not given any liberty to re-open the issue given quietus by the order passed by the High Court in WP No.1178/2003 on 24.7.2006.
10. Insofar as, the defence of the applicants to meet the plea of res judicata raised by the respondents based on their not being party to the litigation is concerned, we may mention that the OA was filed by Van Anusandhan Sansthan Karamchari Sangh representing members of the union and even if, therefore, the applicants may not have been, at that time, as is pleaded in the present OA, members of the union, the OA was in a representative capacity. Surely, number of employees of ICFRE would be members of the Sangh. The Sangh as a trade union or whatever nomenclature, had no stake in the litigation. It was espousing the cause of its members, which is identical to the cause of the applicants in present lis. The Sangh staked claim for its members in a representative capacity. The OA was also filed, in addition to the Sangh, by some of the concerned employees, equally situate as the applicants. In that context also the OA can be said to be in a representative capacity. In our considered view, an issue tried and adjudicated upon, cannot be re-opened on the only ground that the applicants in the subsequent proceedings were not parties and, therefore, the judgment recorded would not be inter partes, when the earlier litigation may have come into being in a representative capacity for and on behalf of persons equally situate. We are of the considered view that if result of that OA was to turn in favour of the applicants therein, the respondents could not, likewise, raise a plea that the decision recorded by the Tribunal would be binding upon them only insofar as the applicants of that case were concerned. The applicants could have surely taken advantage of the said judgment by simply pleading that the case was covered in their favour by the decision recorded by a court of competent jurisdiction. Assuming, however, that the plea of the respondents with regard to the present OA not being competent being barred by principles of res judicata, is not maintainable for the simple reason that the applicants were not party applicants as such, the decision recorded in that OA can be treated to be a precedent, and unless we may find reasons to differ with the same and refer it to a larger Bench, it has to be accepted as such. The only surviving defence by the applicants in their endeavour to meet the plea of res judicata is that some vital documents having crucial bearing upon the case were suppressed by giving false affidavit that they were not in existence.
11. Suppression and giving false affidavits, as per case set up, was with regard to the Cabinet note dated 5th May/June, 1990 (Annexure A-3). It is not in dispute that the resolution dated 22.6.1990 converting the autonomous organization into a society was brought on records by the respondents, as is clearly recited in the order dated 3.1.2003 passed in OA No.1472/2001. The Tribunal recorded the contention of the applicants based upon resolution dated 22.6.1990 only to repel it. Even though, the relevant part of the order passed by the Tribunal, reproduced above, contains the same, for facility of reference, the exact portion dealing with the issue is reproduced once again:
.Their only complaint is that the resolution of 22.6.90, converting the autonomous organization into a society has not been communicated to them which was improper. From the perusal of the said communication dated 22.6.90, brought on record by the respondent it is evident that it was only a letter intimating that the Govt. decided to convert the organization into a society. We are not at all convinced that this letter has affected the rights and service conditions of the applicants in any manner. It is no doubt true that the Tribunal also observed that one of the pleas raised by the applicants in support of their claim was that vide resolution dated 22.6.1990 ICFRE was converted into an autonomous body, and, therefore, service conditions of the applicants had to be such as were applicable to employees of other autonomous bodies, similarly sent to such autonomous organizations from the status of Central Government employees, and the Tribunal while dealing with the contention aforesaid observed that resolution dated 22.6.1990 on which the applicants were harping was a non-existing document. That, however, seems to be an inadvertent mistake and if something was to hinge on the same, surely, the applicants in the OA would have taken the plea before the Division Bench of the Delhi High Court. It appears to us that the resolution aforesaid has since already been taken into consideration by the Tribunal and decision has been given. We may mention that as on today, the argument is not that the resolution dated 22.6.1990 was suppressed even though, some advantage is sought to be taken from the observation of the Tribunal that the same was not in existence. The plea of the applicants pertaining to suppression is of the Cabinet note dated 5th May/June, 1990, which has now been made available to the applicants while seeking information under the RTI Act, and as mentioned above, has been annexed with the OA as Annexure A-3. We would deal with Annexure A-3 in the later part of the judgment, but while dealing with the plea of res judicata raised by the respondents, we may observe that if the applicants had discovered the material document, which would have, as is sought to be projected, great deal of bearing upon the core issues involved in the case, it could, at the most, be a case for seeking review of the judgment passed by the Tribunal and not to agitate the same very issue in a separate Application.
12. In view of discussion made above, we are of the considered view that present Application is barred by general principles of res judicata, based upon the principle that no one should be vexed twice for the same cause of action. Having observed as above, we would, however, deal with the Cabinet note dated 5th May/June, 1990, as this long pending controversy cannot be allowed to go unabated. Surely, with the observations as made above, the application for review would come and, therefore, it would be better to deal with this additional document which, as per the case set up by the applicants, was suppressed by the respondents. Before we may, however, deal with that, we may mention that no material has been placed on record to show that false affidavits were given. We may also observe that during the course of arguments, it was put to the learned counsel representing the parties as to what difference would it make if the ICFRE was to have an autonomous status as a cooperative society, or an autonomous body such as CSIR, ICAR etc. Would it make any difference in the conditions of service of the applicants, would they stand to gain in the matter of their emoluments or promotional avenues, or would have any other additional benefit which may not be available to them if ICFRE was to be a cooperative society having an autonomous status, but not akin to CSIR, ICAR etc., no plausible reply is forthcoming. It is rather amusing to note that all that has been urged before this Tribunal is that ICFRE is located at Dehradum and the applicants wish to continue at that place where they are living since several past years and if the autonomous status of ICFRE was to be akin to the status of CSIR, ICAR etc., the applicants may be continued on deemed deputation till such time they were to superannuate. It may be recalled at this stage that the applicants have made the same prayer, i.e., to remain on deemed deputation with ICFRE till their superannuation, without any deputation allowance. Service conditions of the applicants were to remain the same whether ICFRE was to have an autonomous status similar to CSIR, ICAR etc., with the only difference that the applicant would remain on deemed deputation till their superannuation. We are of the considered view that the respondents had successfully pleaded in OA No.1372/2001 that function-wise and structure-wise, the position of ICFRE is different from other organizations. The plea raised by the applicants for their compulsory deputation with the council/society was repelled by the Tribunal by specifically observing that function-wise and structure-wise the position of ICFRE was different from other organizations. The mere fact that employees of ICFRE were to be on compulsory deputation till the date of superannuation would not provide any ground to the applicants based upon discrimination. Even if the status of ICFRE and other organizations was to be alike, the service conditions of one institution would not automatically apply to the other. This is dependent upon variety of factors, and such factors have indeed been given in the counter reply filed on behalf of the respondents. It has inter alia been pleaded that the ICFRE has been created to formulate, organize and manage forestry research in the country, effect transfer of technologies to States and other user agencies including farmers; to oversee imparting of forestry education in the country; forestry research and education cannot be visualized in isolation from the territorial forests of the country, which are under the control of State Forest Departments; execution of forestry research required suitable forest sites, and all out cooperation of the custodians of the forests, i.e., SFDs; and, therefore, the position in ICFRE is different from ICAR/CSIR/NPCIL. It is further pleaded that in ICFRE and institutes under it, approximately 255 scientists (Group A) and 65 IFS officers are working together, and that the selection procedure/recruitment rules for the posts of Director General/Deputy Director General/Director are same for the IFS officers and scientists, and further that in addition, large number of research staff (Research Officers/Research Assistants) are also working. In the set up of ICFRE it is not possible to retain the applicants on deemed deputation, which may be possible in other organizations referred to above. No case of differential treatment based upon Article 14 of the Constitution can be successfully pleaded. There is a rationale for treating the employees of ICFRE differently than the employees of CSIR, ICAR etc., and, therefore, the plea of discrimination has to be repelled.
13. Cabinet note dated 5th May/June, 1990 (Annexure A-3) under the caption Introduction recites that the ICFRE was established at Dehradun vide Government order dated 31.12.1986. It has members from ICAR, CSIR, UGC, State Agricultural Universities, National Wasteland Development Board, Directorate General of Technical Development, Ministry of Environment and Forests, State Forest Department, Kerala Forest Research Institute, Wildlife Institute of India and Indian Institute of Forest Management. The chairman of the council is Director General, ICFRE. Under the caption Proposed organization, it has been recorded that ICFRE would be an autonomous body registered as a Society on the analogy of CSIR and ICAR. Under the caption Basis of the proposal, it has inter alia been mentioned that unlike other councils such as ICAR and CSIR, the ICFRE is not an autonomous organization and is under the administrative control of the Ministry of Environment and Forests. Under the caption Point for decision, it is mentioned that Approval of the Cabinet is solicited to declare Indian Council of Forestry Research and Education as an autonomous body and to be registered as a society under the societies registration act, 1860 as mentioned in para 3 above. Even though, it might have been mentioned that the ICFRE would be an autonomous organization on the analogy of CSIR and ICAR, it has also been mentioned that unlike other councils such as CSIR and ICAR, the ICFRE is not an autonomous organization and is under the administrative control of the Ministry of Environment and Forests. In the ultimate analysis, proposal for approval is that the ICFRE should be an autonomous body which may be registered as a Society under the Societies Registration Act, 1860. It is quite apparent that after the Cabinet note referred to above, resolution dated 22.6.1990 came to be passed. This resolution was indeed available and was also subject matter of discussion and decision of this Tribunal in OA No.1372/2001. The same reads as follows:
I am directed to say that the Cabinet has approved the proposal of declaring ICFRE as an autonomous body and to be registered as a Society under the Societies Registration Act, 1860. It is requested that necessary action may be taken for registration of the ICFRE as Society within a fortnight so that formal notification can be issued within a period of one month i.e. before 19th July, 1990. It is by virtue of this resolution dated 22.6.1990 that notification dated 30.5.1991 (Annexure a-4) came into being. Vide order dated 30.5.1991, Government of India took a decision to constitute the ICFRE Society, a subordinate office of the Ministry of Environment and Forests into an autonomous institution, based upon resolution dated 22.6.1990. The Society was constituted and registered as such under the Societies Registration Act, 1860. The Government vide the notification aforesaid, transferred with effect from 1.6.1991, Forest Research Institute, Dehradun; Institute of Forest Genetics and Tree Breeding, Coimbatore; Institute of Wood Science and Technology, Bangalore; Institute of Deciduous Forest, Jabalpur; Institute of Arid Zone Forestry Research, Jodhopur; and Institute of Rain & Moist Deciduous Forest Research, Jorhat, to the ICFRE Society. Director General of ICFRE and every employee holding any office under him immediately before the handing over of the Council to the Society, was to be treated as on deputation with the Society but was to hold his office in the Society by the same tenure and upon the same terms and conditions of service as respects remuneration, leave, provident fund, retirement or other terminal benefits, as he would have in such office had the Society not been constituted and would continue to do so until the Society duly absorbed such employee in its regular service. It was specifically mentioned that any such employee who had in respect of the proposal of the Society to absorb him in its regular service intimated within such time as may be specified in that behalf by the Society, his intention of not becoming a regular employee of the Society, would not be absorbed by the Society. Be it the Cabinet note dated 5th May/June, 1990, resolution dated 22.6.1990 or the notification dated 30.5.1991, it is clear that the ICFRE, even though, may have an autonomous status, but not as compared to ICAR/CSIR etc., if it was to be constituted into a cooperative society. The resolution dated 22.6.1990 approving the Cabinet note dated 5th May/June, 1990 is not at variance with the Cabinet note. So is the position with regard to the notification dated 30.5.1991. In the circumstances, as mentioned above, even if the Cabinet note dated 5th May/June, 1990 was to be produced, the same would not have made any difference in the decision recorded by this Tribunal in OA No.1372/2001. Insofar as, the matters relating to service conditions of the employees are concerned, the same stand mentioned only in the ultimate notification that came into being on 30.5.1991. It is clearly recorded therein that every employee of ICFRE was to be treated as on deputation with the Society but was to hold his office in the Society by the same tenure and upon the same terms and conditions of service as respects remuneration, leave, provident fund, retirement or other terminal benefits, as he would have in such office had the Society not been constituted and would continue to do so until the Society duly absorbed such employee in its regular service. They were to give option as to be absorbed or not. If at all, some conditions of service of the employees came to be spelled out, the same emanated only from the notification dated 30.5.1991. The Cabinet note does not touch the issue of service conditions of the applicants. There is not even a whisper that the employees of ICFRE would have the status of employees of other autonomous organizations like CSIR, ICAR etc. The Cabinet note, at the most, states that the Society would be constituted on the analogy of CSIR and ICAR, but as mentioned above, and it is also specifically mentioned that unlike other councils, the ICFRE is not an autonomous organization and is under the administrative control of the Ministry of Environment and Forests. We are of the considered view that even if the Cabinet note, suppression whereof has been stated to be a ground to re-open the entire issue, was on the records and even if the same had been pressed into service, the same would have provided no solace to the applicants. We are also of the view that it cannot be of any interest or advantage to the applicants if ICFRE Society was to be an autonomous body under the control of Ministry of Environment and Forests, as surely, they are no body to command the employer as to how it has to organize itself and its activities. They can, at the most, be interested with their service conditions, and we may reiterate, the only service condition stated to be to their disadvantage is that whereas in other institutes like ICAR, CSIR etc., the employees were given choice to be on deputation till their superannuation, the same was not given to the applicants. We have already commented upon this contention and repelled the same.
14. Shri G. D. Gupta, learned Senior Advocate representing the applicants, also touched on the aspect of the applicants having not been apprised of the service conditions by which they would be governed, and in particular, how their post-retiral dues would be taken care of. Even though, this aspect was touched by the applicants in OA No.1372/2001, the same was met by observing that It is also on record that the respondents had supplied to them, following the decision of the Allahabad Bench of the Tribunal in OA 660/92, Compendium of Rules and Regulations for the employees, yet, even if it may be opined that there was no elaborate discussion on the issue, the same cannot be permitted to be re-agitated. However, inasmuch as, elaborate arguments have been addressed on this issue, we may once again deal with the issue simply to allay and dispel their feeling that the issue has not been properly discussed.
15. Employees of ICFRE, it emanates from the records and the compilations given to us during the course of arguments, were provided the entire compendium of rules and regulations for employees in 1992 itself. This factor has also been recorded in the order dated 3.1.2003 in OA No.1372/2001. The respondents have brought to our notice the Indian Council of Forestry Research and Education Group A (Scientific Posts) Rules, 1991. Rule 2 makes a mention of designations and grades of scientific posts in ICFRE. Recruitment norms; age limit and experience for direct recruitment; induction; recruitment, review and promotion; departmental review committee; review and promotion through flexible complementing; review process; computation for service of review; probation; avenues of promotion; deputation from outside agencies; benefit of added years of service; and general instructions, are contained in the rules aforesaid. The respondents have also referred to recruitment and promotion rules in respect of administrative staff, known as ICFRE and its Institutes (Pay, Recruitment and Promotion) Rules, 1991. They have also brought to our notice TA/DA rules of ICFRE, as also recruitment and promotion rules in respect of technical staff, and service conditions under ICFRE. It is the case of the respondents, which remained unrebutted, that vide letter dated 31.7.1992 a note on service conditions of employees of the ICFRE was forwarded to Secretary, ICFRE and publicized among the employees/association/union. Accordingly vide letter dated 31.8.1992, Secretary ICFRE forwarded the letter aforesaid along with the accompanying clarificatory note to all Directors of ICFRE Institutes and the same was duly publicized amongst the employees. On 29.9.1992, Registrar, ICFRE provided clarifications for the benefit of employees of ICFRE. Vide letter dated 18.3.1993 clarification regarding issues related to absorption of employees were provided and publicized among employees. On 29.6.1993, service conditions of Group A officers who had got absorbed in ICFRE were provided and the same were publicized amongst employees. Vide letter dated 17.1.1996 the last date of absorption into ICFRE was extended up to 28.2.1996 and the same information was publicized amongst employees and their associates. Vide letter dated 22.5.1998, a letter dated 21.5.1998 with detailed clarifications to the employees was publicized amongst them. CCS (Pension) Rules, 1972 were made applicable to the applicants. In addition to that, pension of the applicants was ensured by the respondents when the counsel representing them made the statement to that effect before the Division Bench of the High Court of Delhi, as mentioned above, as also orders that ultimately came to be passed by the High Court. The plea of the applicants that they were not apprised of the service conditions that were to govern them if they were to remain in ICFRE, in our view is buried under the various documents proving to the hilt otherwise.
16. The applicants were given number of opportunities from 1993 up to 24.7.2006 when the High Court of Delhi passed order on WP (C) No.1178/2003 on the statement made by the counsel representing the parties. There does not seem to be any earthly reason for the employees to forestall their option. During the course of arguments, we asked the counsel representing the respondents if the respondents may give yet another option to the applicants for their absorption, as a concession, but the same is not acceptable to the respondents for good reasons. Surely, the applicants have no good ground to continue demanding their deemed deputation in ICFRE till such time they were to superannuate.
17. Finding no merit whatsoever in this Application, we dismiss the same. This may be one case where the respondents need to be compensated by way of granting them some costs, for totally obdurate and wholly unjustified attitude of the applicants, but considering the fact that the applicants are nonetheless employees trying to cater their needs only on their pay, we leave the matter at that.
O.A. No.358/200818. While referring to the autonomous status of ICFRE and its registration under the Societies Registration Act, 1860, vide notification dated 30.5.1991, it is pleaded that according to the said notification every employee holding any office would be treated as on deputation with ICFRE Society by the same terms and conditions of service, until the Society duly absorbs such employees in its regular service. Thereafter, options were invited by the respondents from the transferred employees either to opt for absorption in favour of ICFRE Society or to remain in the service of the Government of India. During the period of compulsory deputation, the staff and employees of the erstwhile ICFRE were granted promotions in terms of the recruitment rules for the posts/cadre to which the employees belonged. Large number of employees, i.e., about 1250 at that time, did not opt for absorption in ICFRE Society in the absence of basic material documents, such as the terms and conditions of their service after their absorption and especially their pensionary benefits etc. It is the case of the applicants that the respondents also concealed material documents, such as the decision of the Union Cabinet which led to grant of autonomy to the ICFRE and which provided that the Council would have to be developed on the same lines as in the case of other autonomous scientific institutions and organizations, such as CSIR and ICAR. In this regard, reply given by the respondent No.1 to the various queries made by some of the employees denied access to the Union Cabinet decision, upon which the entire exercise was undergone, which would also reveal that there was no safety to pension and terminal benefits of the employees. It is the case of the applicants that litigation ensued, and as a coercive measure the respondents threatened to declare those employees who did not opt in favour of ICFRE Society as surplus, though the posts and need to man the posts continued in the organization. It is further the case of the applicants that in order to translate their threat, in 2001 the respondents declared 650 employees as surplus due to non-opting in favour of the service of ICFRE Society, which turned out to be only a threat and no steps were taken to place these employees in the surplus cell of the DOP&T for re-deployment, and it was rather now revealed as per the information sought under RTI Act that it was merely an identification of the staff to be declared surplus. From the year 2001 to 2007 the applicants continued to hold the posts held by them, performed their duties and responsibilities. The applicants who became due for promotion thereafter were, however, not considered for promotion on the ground that they have been declared surplus. Thereafter application under RTI Act was filed on 5.4.2006 by some of the colleagues of the applicants, whereby it was asked to supply copy of the orders containing instructions given to ICFRE/FRI for dropping Central Government employees for promotion. In reply to this, the Ministry of Environment and Forests stated that the employees working in ICFRE have been only identified as surplus by the said Ministry, but the employees have not been declared surplus so far and have not been transferred to the surplus cell of DOP&T for further redeployment. It is the case of the applicants that an employee is declared surplus on acceptance of DOP&T and then only he is not considered for promotion till he is redeployed in some other organization. The DOP&T confirmed that these employees had not so far been taken on the surplus roll and, therefore, the question of redeploying them in other Central Government organizations does not arise. It is pleaded that it has, however, now come on records that the applicants were declared surplus without any acceptance by the DOP&T, whereas the DOP&T has clarified that only when an employee is declared surplus on acceptance by them, then only he will not earn his promotion in the parent organization. Consequently, representations were made by some of the applicants that since they had not yet been declared surplus and had not been treated as such, withholding of their promotions, especially when their juniors were promoted, was totally arbitrary and without foundation. In the meantime, the Ministry of Environment & Forests, under RTI, has accepted that till 19.5.2006 and 19.6.2006, the acceptance of applicants as surplus by the DOP&T was not received so far. It is the case of the applicants that the net result of the correspondence mentioned above is that for the period of seven years, i.e., from 2001 to 2007, the applicants have been denied promotion illegally and unauthorisedly and their juniors have superseded them, despite the fact that the applicants were very much holders of the posts and continued to function on the posts in the same hierarchy. By way of illustration, it is pleaded that applicant No.1 Smt. Anand Bala Mehra, a UDC, who was at serial no.25 and applicant no.2, Shri G.S.Rana, who was at serial no.37 in the seniority list of UDCs, were ignored for promotion during the period 2001 to 2007, while the persons at serial nos. 30, 31, 34, 41, 42, 43, 44, 46 and 48 were promoted. Similarly, applicant no.3, who was at serial no.83 of the seniority list of Research Assistant Grade-I was ignored for promotion to the post of Research Officer, and his juniors at serial no. 84, 88, 91 and 94 were promoted. It is the case of the applicants that the effect of declaring a government servant surplus has a very serious repercussion in the careers of an employee inasmuch as, his entire past service stands obliterated for the purposes of seniority and promotion from the date he is redeployed in some other department, and that he can even be forced to join on a post lower than his substantive post in his parent department, which would be in addition to the displacement he is made to suffer on that account. It is further the case of the applicants that to add to their injury, seven years of their service have been taken out which will neither be counted in the parent department for purposes of seniority and promotion nor will it be counted in the department where they are redeployed after they are declared surplus by the DOP&T. Constrained under the circumstances, the applicants made representations praying for their promotion before they may be declared surplus and redeployed, but when the same brought no tangible results, present Original Application came to be filed. The relief sought for by the applicants is for a declaration that they are entitled for promotion from the dates their juniors have been promoted during the period February, 2001 till September 30, 2007 with further direction to the respondents to crystallize the positions held by the applicants before they can be rendered surplus for deployment in any other department, as also to direct the respondents 1 and 2 to keep the order dated 1.10.2007 in abeyance and orders, if any, of redeployment of applicants to other departments till the exercise as prayed for in prayer aforesaid is carried out.
19. Pursuant to notice issued by this Tribunal, respondents have entered appearance and by filing their counter reply hotly contested the cause of the applicants. We need not, at this stage, give the defence as projected in the counter reply for the simple reason that employees equally situate, with the only difference that whereas the applicants herein have not given their option despite extended date for giving option as came about by virtue of the orders passed by the High Court of Delhi in WP (C) No.1178/2003, had filed OA No. 2171/2007 with the prayer that in the seniority list, they should be shown senior to those who were junior to them, and the applicants were shown junior only for the reason that they had not given option as required from them. We may make a mention of the precise case and reliefs asked for by the applicants in OA No.2171/2007 and the outcome of the same, as also their present status hereinafter.
20. Ram Prakash and 22 other employees of ICFRE, on identical facts, filed OA bearing No.2171/2007 before this Tribunal which was decided on 31.3.2008. In the OA aforesaid, wherein the facts pleaded are identical as the one in hand, challenge was to the seniority list. The matter was contested by the respondents. The OA was, however, allowed. The operative of the order reads as follows:
32. Resultantly, for the foregoing reasons, the respondents omission to reckon the erstwhile service of applicants for the purpose of seniority is not sustainable in law. As juniors to the applicants have been made parties, this OA is partly allowed. Impugned seniority list insofar as it places private respondents through amended memo of parties over and above the applicants is set aside. Respondents are directed to re-fix the seniority of applicants by counting their service in the parent department and on compulsory deputation. As a consequential relief, respondents are also directed to consider applicants for promotion in accordance with law. This shall be done within a period of three months from the date of receipt of this order.
21. We have heard the learned counsel representing the parties and with their assistance examined the records of the case.
22. The applicants have asked for the same reliefs as had been asked for by the applicants in OA No.2171/2007. The only difference in the prayers is that in the present OA, it is also prayed that the applicants be not re-deployed till such time they are promoted, for variety of reasons, like being treated as fresh employees etc., as fully enumerated above. The other difference which may not be material is that whereas, the applicants in OA No.2171/2007 had given their option to remain in ICFRE Society and had been even absorbed, the applicants herein have not given their option. The same may not make any difference in the result of the case, inasmuch as, till such time options were open to the applicants, they ought not to have been overlooked by their juniors, if one is to follow the decision recorded by this Tribunal in OA No.2171/2007. The orders of this Tribunal in OA No.2171/2007 have since been challenged before the Delhi High Court in WP (C) No.3090/2008, and the operation of the judgment passed by the Tribunal impugned in the said writ petition has since been stayed. Learned counsel representing the applicants is conscious of this fact and has yet sought disposal of this OA. One way of looking at the things could be to adjourn this matter sine die, awaiting the decision of the High Court in WP (C) No.3090/2008. However, as the counsel for parties have required us to decide the matter, we would only say that the decision of the High Court that may be ultimately taken in the matter of promotion of those who have been absorbed would be final. There is no need for us to reconsider the issue in view of the same very issue being sub judice before the Honble High Court. Since the parties have sought decision and the fact is that the operation of the judgment passed by this Tribunal has been stayed by the Honble High Court, the only direction besides stating that the decision rendered by the High court would be binding upon the parties, would be that if ultimately the writ filed before the High Court is dismissed, the applicant who are to be redeployed, would be at liberty to seek adjustments on the posts against which they may be redeployed in consequence of the promotions that may be given to them in ICFRE over and above their juniors. The case of the applicants for seniority and promotion would be considered only up to the date of option from them to continue in the service of ICFRE Society, and if by that date, persons junior to them were promoted. We make it clear that if any one junior to the applicants might have been promoted after the last date of opting by the applicants to remain in ICFRE Society, surely, the applicants would have no case for seeking seniority and promotion.
23. OA No.358/2008 is accordingly disposed of leaving, however, the parties to bear their own costs.
( L. K. Joshi ) ( V. K. Bali ) Vice Chairman (A) Chairman /as/