Kerala High Court
Nirmal Mathews vs The Director on 20 January, 2020
Author: V.G.Arun
Bench: K.Vinod Chandran, V.G.Arun
OP(CAT).2485/13 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
MONDAY, THE 20TH DAY OF JANUARY 2020 / 30TH POUSHA, 1941
OP (CAT).No.2485 OF 2013(Z)
AGAINST THE ORDER/JUDGMENT IN OA 299/2011 DATED 16-02-2012 OF
CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
PETITIONER/S:
NIRMAL MATHEWS
S/O.LATEM.V.MATHEWS, SANTHOSH BHAWAN, KADAVANTHRA
P.O., KOCHI-20.
BY ADVS.
SRI.P.K.MADHUSOODANAN
SRI.P.M.BINOY KRISHNA
RESPONDENT/S:
1 THE DIRECTOR, CENTRAL MARINE FISHERIES RESEARCH
INSTITUTE (CMFRI)
CENTRAL MARINE FISHERIES RESEARCH INSTITUTE
(CMFRI), (INDIAN COUNCIL OF AGRICULTURAL RESERACH)
P.B.NO.`1603, ERNAKULAM NORTH P.O., KOCHI-682 018.
2 THE DIRECTOR GENERAL
INDIAN COUNCIL OF AGRICULTURAL RESERACH
(ICAR),KRISHI BHAVAN, DR.RAJENDRA PRASAD ROAD, NEW
DELHI-110 001.
3 INDIAN COUNCIL OF AGRICULTURAL RESERACH ICAR
REPRESENTED BY ITS SECRERTARY, KRISHI BHAVAN,
DR.RAJENDRA PRASAD ROAD, NEW DELHI-110 001.
4 THE DEPUTY SECRETARY TECHNICAL
INDIAN COUNCIL OF AGRICULTURAL RESERACH ,KRISHI
BHAVAN, DR.RAJENDRA PRASAD ROAD, NEW DELHI-110 001.
5 UNION OF INDIA
REPRESENTED BY ITS SECRETARY, MINISRY OF
OP(CAT).2485/13 2
AGRICULTURE, NEW DELHI-110 001.
R1 BY SRI.T.C.KRISHNA, SC, CMFRI
R2-4 BY SRI.T.C.KRISHNA, SC, ICAR
R5 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 20.01.2020, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(CAT).2485/13 3
VINOD CHANDRAN
&
V.G.ARUN, JJ.
-----------------------------------------------
O.P(CAT).No. 2485 of 2013
-----------------------------------------------
Dated this the 20th day of January, 2020
JUDGMENT
Arun, J.
The petitioner had approached the Central Administrative Tribunal challenging Annexure A15 office memorandum, by which his request for promotion to T-6 Grade as per the Technical Service Rules (TSR) of the Central Marine Fisheries Research Institute (CMFRI), an institute under the Indian Council of Agricultural Research (ICAR), was rejected. The brief facts leading up to Annexure A15, as narrated in the original application, are as under;
The petitioner was appointed under the 1 st respondent as T-II-3 (Bosun) (Boat Crew) in Category II in the pay scale of Rs.425-700 with effect from 3.6.1980. The petitioner's qualifications were SSLC, Fishing 2nd Hand Training Certificate, Fishing 2nd Hand Competency Certificate, Competency (Skipper) Certificate from the Mercantile Marine Department (MMD). The petitioner was promoted as T-4 (Bosun) in the pay scale of Rs.1640-2900 with effect from 1.1.1986 and was further promoted to T-5 (Bosun) in the pay scale of Rs.2000-3500 with effect OP(CAT).2485/13 4 from 1.7.1991. After completion of five years service as T-5 (Bosun), he was granted three advance increments in the same grade with effect from 1.7.1996. The petitioner was governed by the TSR of ICAR which was in force with effect from 1.10.1975. As per the TSR, the career advancement of an individual employee are restricted within the respective categories, to be carried out in the following manner;
"There shall be a system of merit promotion from one grade to the next higher grade irrespective of occurrence of vacancies in the higher grade or grant of advance increment (s) in the same grade, on the basis of assessment of performance. The persons concerned will be eligible for consideration for such promotion or for the grant of advance increment(s) after the expiry of five years service in the grade. Since merit promotions are restricted within the category persons holding highest grades viz. Grade T-I-3 in Category I, Grade T-5 in Category-II and Grade T-9 in Category III are not eligible for further promotion as there was Category bar from crossing one category to the other. There is, however, no bar for grant of advance increments to such Technical Personnel who are in the highest grade of category subject to the maximum of three increments within the grade."
2. The minimum qualifications prescribed under Appendix-IV of TSR for sub group 'fishing and training vessel staff' belonging to the functional group of work shop staff, for entry into category-III was as under;
"(i) Certificate of competency as Skipper of the fishing vessels issued by the Mercantile Marine Department. Three years' Diploma/Bachelor's Degree in the relevant field.OP(CAT).2485/13 5
(ii) Secondary School Leaving Certificate or equivalent.
(iii) 5 years practical experience on fishing vessels."
3. As per letter dated 14.9.1995, copy of which was produced as Annexure A1, technical personnel in Grade-T-5 who have put in not less than 12 years of service in that Grade could be considered for appointment to Grade-T-6 of Category-III, subject to their possessing minimum qualification for Category-III as prescribed in Appendix-IV of TSR and on the basis of clearance from the Agricultural Scientists Recruitment Board (ASRB). The approved persons were to be adjusted against existing vacancies and in the absence of such vacancies, the existing post in Grade-T-5 held by the approved incumbent was to be upgraded to Grade-T-6 on personal basis till such time as regular vacancies become available.
4. By Annexure A2 letter dated 3.2.2000, the ICAR introduced new Technical Service Rules (new TSR), modifying the qualification for direct recruitment of technical personnel at the entry grades in categories-I, II and III of the functional groups. As per the new TSR, for merit promotion from T-5 of Category-II to T-6 of Category-III, the following criteria was prescribed;
"(v) As per new TSR for merit promotion from T-5 of Category II to T-6 of Category III, the following are the criteria:-
(a) Technical personnel in T-5 grade (Rs.6500-10500) (pre-
revised) and possessing Master's Degree in the relevant field or equivalent qualifications from a recognized OP(CAT).2485/13 6 university, shall be eligible for assessment promotion to T-6 grade (Rs.8000-13500) after completing five years of service in T-5 grade.
(b) The T-5 technical personnel who do not possess the essential qualifications (i.e Master's Degree in the relevant field or equivalent qualifications) shall be eligible for assessment promotion to T-6 grade after completing 10 years of service in T-5 grade provided such technical personnel possess Bachelor's degree in Agriculture or any Science subjects or equivalent qualifications from a recognized university."
5. The new TSR was effective from 3.2.2000 onwards and the existing technical employees, who preferred to be governed as per the existing TSR, was given an opportunity to exercise individual options in writing to be governed by the old TSR. The option was to be exercised within a period of 30 days from the date of issue of the notification. Admittedly, the petitioner did not exercise the option and instead, submitted a request to extend the time for exercising the option, which was rejected under Annexure A8 memorandum dated 15.12.2006. The applicant pursued the issue with further representations and in the meanwhile, by Annexure A11 order, the revised recruitment rules of fishing vessel-II was published by the ICAR. In Annexure A11 it was stipulated that incumbents of other posts which are in different grades of Category-I and Category-II (Grade T-1 to Grade T-5) would be eligible for promotion on the basis of their existing qualifications up to Grade T- 5 only and not beyond and therefore, the qualifications for various OP(CAT).2485/13 7 fishing vessel posts have not been prescribed for Category-III. They would, however, be eligible for consideration for appointment to the post of Skipper/Chief Engineer subject to their eligibility in accordance with the revised recruitment rules for these posts and that in the event of their appointment as Skipper/Chief Engineer as per revised recruitment rules they would cease to be technical employees.
6. Aggrieved by the refusal to consider his request for promotion, the applicant approached the Central Administrative Tribunal by filing O.A.No.552 of 2009 and the same was disposed under Annexure A13 order (as revised by Annexure A14), directing the respondents to consider the representation of the applicant with utmost sympathy for granting him, either the pay scale of Rs.10000-15200 with effect from 14.8.2008 as per paragraph 2.2 in the notification dated 19.8.2008 or T-6 Grade in the pay scale of Rs.8000-275-13500 as per the old Rules with effect from the date he completed the required service in Grade T-
5. It was in terms of Annexure A14 that Annexure A15 order was issued by the respondents finding the applicant to be not eligible for promotion to T-6 under the new TSR and further holding that on occurrence of vacancy in the post of Skipper Grade-I at CMFRI in the pre-revised pay scale of Rs.10000-15200, the applicant can be considered for the post in accordance with the prescribed recruitment rules.
OP(CAT).2485/13 8
7. Heard Sri.P.K.Madhusoodhanan, learned counsel for the petitioner and Sri.T.C.Krishna, learned Standing Counsel for the ICAR and Sri.P.Vijayakumar, the learned Assistant Solicitor General of India appearing for the Union of India.
8. Learned counsel for the petitioner reiterated the contentions urged before the Tribunal. It is contended that rejection of his request was illegal in the light of the positive direction contained in Annexure A14 order. It is submitted that the petitioner had not exercised the option of electing to continue under the old TSR, since the respondents had informed him that his request for promotion was under
consideration. It was argued that the respondents ought to have considered the case of the petitioner under the old TSR and should have granted promotion to the petitioner to T-6 in Grade-III. The learned Standing Counsel for the ICAR stoutly opposed the contention and submitted that having twice failed to avail the opportunity of exercising the option, the petitioner cannot contend that his case should have been considered under the old TSR.
9. It is not in dispute that under the newly introduced TSR, there is no opportunity of promotion for the petitioner, since he lacks the requisite qualification and that the only chance of promotion for the petitioner is under the old TSR. In this regard it is pertinent to note that under Annexure A2, bringing about modifications to the existing TSR, the ICAR had given an option to all its technical employees to be OP(CAT).2485/13 9 governed by the existing TSR, provided they exercise such option within one month. A further opportunity to exercise the option was granted to the petitioner under the letter dated 19.10.2006. Having foregone both the opportunities, the petitioner cannot seek promotion in terms of the old TSR. As rightly held by the Tribunal, the petitioner does not have a vested right to be promoted and his right is limited to consideration for promotion in accordance with the recruitment rules. The recruitment rules in force does not contain any provision for promotion of personnel in T-5 to T-6 in category-III. In such circumstances, the respondents were fully justified in rejecting the petitioner's representation and finding that the petitioner can be considered for promotion to the post of skipper Grade-I at CMFRI in the revised pay scale of Rs.10000-15200, as and when vacancy arises.
Therefore, we find no reason to interfere with the well-founded order of the Tribunal. In the result, the original petition is dismissed. No order as to costs.
Sd/-
VINOD CHANDRAN JUDGE Sd/-
V.G.ARUN JUDGE vgsx OP(CAT).2485/13 10 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 EXHIBIT P1.TRUE COPY OF THE OA NO.299/2011 SUBMITTED BY THE PETITIONER BEFORE THE CAT, ERNAKULAM.
ANNEXURE A15 TRUE COPY OF THE OFFICE MEMORANDUM F.NO.14(6)/2006-ESTT..IV DATED 11-10-2010 ISSUED BY THE 4TH RESPONDENT.
ANNEXURE A1 TRUE COPY OF THE CIRCULAR NO. 14(3)/94- ESTT-IV(VOL.II) DATED 4-8-1995 ANNEXURE A2 TRUE COPY OF THE NOTIFICATION NO. 18-1/97 ESTT.IV DATED 3-2-2000 ISSUED BY 3RD RESPONDENT ANNEXURE A3 TRUE COPY OF THE MEMORANDUM DATED 4-6-2003 ISSUED BY SENIOR ADMINISTRATIVE OFFICER OF THE 1ST RESPONDENT.
ANNEXURE A4 TRUE COPY OF THE MEMORANDUM DATED 5-1-2005 ISSUED BY SENIOR ADMINISTRATIVE OFFICER OF THE 1ST RESPONDENT.
ANNEXURE A5 TRUE COPY OF THE MEMORANDUM DATED 19-08- 2006 BY THE ADMINISTRATIVE OFFICER AND MEMBER SECRETARY, GRIEVANCE COMMITTEE, CMFRI, KOCHI 18 ANNEXURE A6 TRUE COPY OF THE LETTER DATED 19-10-2006 ISSUED BY 2ND RESPONDENT.
ANNEXURE A7 TRUE COPY OF THE REPRESENTATION DATED 29- 11-2006, TO THE 1ST RESPONDENT.
ANNEXURE A8 TRUE COPY OF THE MEMORANDUM DATED 15-12- 2006 ANNEXURE A9 TRUE COPY OF THE REPRESENTATION DATED 18- 12-2006 SUBMITTED TO THE 3RD RESPONDENT ANNEXURE A10 TRUE COPY OF THE REPRESENTATION DATED 19- 08-2008 SUBMITTED TO THE 3RD RESPONDENT.OP(CAT).2485/13 11
ANNEXURE A11 TRUE COPY OF THE RELEVANT EXTRACT OF ORDER DATED 19-08-2008 ISSUED BY THE 3RD RESPONDENT ANNEXURE A12 TRUE COPY OF THE LETTER NO. 14(6) 2006- ESTT.IV DATED 18-09-2009 ISSUED BY 3RD RESPONDENT.
ANNEXURE A13 TRUE COPY OF THE ORDER DATED 7-6-2010 IN O.A NO. 552/09 PASSED BY THIS HON'BLE TRIBUNAL.
ANNEXURE 14 TRUE COPY OF THE ORDER DATED 5-8-2010 IN R.A NO. 18/10 IN O.A 552/09 PASSED BY THIS HON'BLE TRIBUNAL.
EXHIBIT P2 EXHIBIT 2.TRUE COPY OF THE REPLY STATEMENT IN OA NO.299/2011 BEFORE THE CAT, ERNAKULAM BENCH , FILED BY THE RESPONDENTS EXHIBIT P3 EXHIBIT P3.TRUE COPY OF THE LETTER VIDE F.NO.14(6)/2006-ESTT-IV DATED 20/1/2012 OF THE 4TH RESPONDENT EXHIBIT P4 EXHIBIT P4.TRUE COPY OF THE REJOINDER IN OA NO.299/2011 BEFORE THE CAT, ERNAKULAM BENCH, TO THE REPLY STATEMENT FILED BY THE PETITIONER.
EXHIBIT P5 EXHIBIT P5.TRUE COPY OF THE FINAL FINAL ORDER DATED 16/2/2012 IN OA NO.299/2011 PASSED BY THE HONOURABLE CAT, ERNAKULAM BENCH.