Kerala High Court
P.K.Harikumar vs The Director on 24 January, 2011
Author: P.R. Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MRS. JUSTICE SHIRCY V.
TUESDAY, THE 6TH DAY OF JUNE 2017/16TH JYAISHTA, 1939
OP (CAT).No. 1167 of 2011 (S)
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AGAINST THE ORDER IN OA 1008/2010 of CENTRAL ADMINISTRATIVE
TRIBUNAL,ERNAKULAM BENCH DATED 24.1.2011
PETITIONER:
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P.K.HARIKUMAR, TECHNICAL OFFICER
CENTRAL MARINE FISHERIES RESEARCH INSTITUTE, (INDIAN
COUNCIL OF AGRICULTURAL RESEARCH), P.B.NO.1603, KOCHI-682 018.
BY ADVS.SRI.P.K.MADHUSOODANAN
SRI.P.M.BINOY KRISHNA
RESPONDENTS:
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1. THE DIRECTOR, CENTRAL MARINE FISHERIES
RESEARCH INSTITUTE, (INDIAN COUNCIL OF AGRICULTURAL
RESEARCH), P.B.NO.1603,, KOCHI-682 018.
2. INDIAN COUNCIL OF AGRICULTURAL RESEARCH,
REPRESENTD BY ITS SECRETARY, KRISHI BHAVAN,
NEW DELHI-110114.
3. DIRECTOR GENERAL, INDIAN COUNCIL OF
AGRICULTURAL RESEARCH, KRISHI BHAVAN,
NEW DELHI-110 114.
4. AGRICULTURAL SCIENTISTS RECRUITMENT
BOARD, REPRESENTED BY ITS CHAIRMAN, KRISHI ANUSANDHAN
BHAVAN, PUSA, NEW DELHI-110012.
5. UNION OF INDIA REPRESENTED BY ITS
SECRETARY, MINISTRY OF AGRICULTURE,
KRISHI BHAVAN, NEW DELHI-110114.
R,R1-R3 BY ADV. SRI.VIVEK VARGHESE P.J.
R5 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 06-06-2017, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
APPENDIX:
OPCAT 1167/2011
PETITIONER'S EXTS:
P1. COPY OF THE ORDER PASSED BY THE CAT ERNAKULAM BENCH IN OA
1008/2010 DT. 24.1.2001.
P2. COPY OF OA 1008/2010 BEFORE THE CAT EKM BENCH
P3 COPY OF INTERIM ORDER DT. 26.11.2010.
P4. COPY OF MISC. APPLICATION NO. 950/2010 IN OA 1008/2010.
P5. COPY OF ORDER DT. 8.12.2010 IN MA 950/2010 IN OA 1008/2010.
P6. COPY OF REPLY STATEMENT DT. 13.12.2010 FILED BY RESPONDENTS 1 TO
4.
P7: COPY OF REJOINDER DT. 23.12.2010 FILED BY THE PETITIONER.
P8. COPY OF ARGUMENT NOTE FILED BY THE PETITIONER.
P9 COPY OF MA FILED BY THE RESPONDENTS 1 TO 4.
P10. COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS 1 TO 4.
RESPONDENTS EXTS:
R1. COPY OF ASSESSMENT CRITERIA OF SCIENTIST FOR MERIT PROMOTION.
R2. COPY OF SCHEDULE II OF AGRICULTURAL SERVICE RULES.
R3. COPY OF UNIVERSITY GRANTS COMMISSION NOTIFICATION NO. F3-1/94
(PS) DT. 24/12/1998.
R4(I) COPY OF MODEL QUALIFICATIONS NO. 8-1/89 PER.IV DT. 8.11.1989
FRAMED BY COUNCIL AFT ER ADOPTED OF UGC PAY PACKAGE.
R4(II) COPY OF MODEL QUALIFICATIONS NO. 8-(3)95 PER/IV DT. 6.2.1995
FRAMED BY COUNCIL AFT ER ADOPTED OF UGC PAY PACKAGE.
R4(III) COPY OF MODEL QUALIFICATIONS NO. 8-(01)/07 PER/IV DT.
7.11.2007FRAMED BY COUNCIL AFT ER ADOPTED OF UGC PAY PACKAGE.
R4(IV) COPY OF MODEL QUALIFICATIONS NO. 8-(1)2007 PER/IV DT.
11.6.2007 FRAMED BY COUNCIL AFT ER ADOPTED OF UGC PAY PACKAGE.
R4(V) COPY OF MODEL QUALIFICATIONS NO. 8-(1)2007 PER/IV DT.
19.4.2007 FRAMED BY COUNCIL AFT ER ADOPTED OF UGC PAY PACKAGE.
R5. COPY OF LETTER F. NO. 8(7)/95.PER IV DT. 14.2.08 PRESCRIBING AGE
LIMIT/RELAXATION FOR APPEARING IN AGRICULTURAL RESEARCH SERVICE
EXAMINATION AND NUMBER OF ATTEMPTS FOR APPERING IN SAID EXAMINATION.
KS.
True copy
P.S. (Hr.Gr.)To Judge
P.R. RAMACHANDRA MENON & SHIRCY V.,JJ.
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O.P. (CAT)No. 1167 OF 2011
==============================
Dated this the 6th day of June, 2017
JUDGMENT
P.R. Ramachandra Menon, J.
Ext.P1 order passed by the Central Administrative Tribunal, Ernakulam declining interference in the O.A. preferred by the applicant mainly seeking for a direction and declaration that the 2nd respondent/Indian Council of Agricultural Research (ICAR) is not justified in proceeding with Annexure A-1 selection before finalising the Recruitment Rules for the Post of Scientist( S-3) and also before passing an order after considering Annexure-A2 representation is the subject matter of challenge in this original petition.
OPCAT 1167/2011 2
2. The sequence of events reveals that the petitioner was selected and appointed as a Technical Officer in the Central Marine Fisheries Research Institute(CMFRI), Cochin under the establishment of ICAR. In the course of his service, several promotions were obtained by him in the technical cadre. While serving as an Officer in the grade of T-III level, he came across Annexure-A1 notification issued by the 4th respondent, Agricultural Scientists Recruitment Board, for selection and appointment of Senior Scientist (S3) from open market prescribing the qualification as Doctoral Degree and Research Experience as stated therein. The said notification was issued way back in the year 2009 and the last date of submitting the application was 23.8.2010. On coming across the notification, the petitioner submitted Annexure A-2 representation before the 2nd respondent mainly pointing out that the course pursued by the authorities for selecting the candidates and to fill up the vacancies for the post of Senior Scientists from open market was not correct and sustainable, especially in view of the OPCAT 1167/2011 3 fact that more than 600 persons having academic and professional qualification are serving in the establishment, virtually doing the same or similar work pertaining to research. It was also pointed out that appropriate Recruitment Rules shall be made so as to open up an avenue of promotions for the Technical Staff-Scientist Cadre before proceeding with further steps pursuant to Annexure-A1.
3. On finding that no action has been pursued by the respondents to have the grievance projected in Annexure-A2 considered, the petitioner approached the Tribunal by filing O.A. with the following prayers:
(a) Declare that selection and appointment proposed to the intermediary posts of Senior Scientists as per Annexure-A1 without the issuance of necessary Recruitment Rules for the same is highly arbitrary, discriminatory and opposed to law and therefore the same is illegal;
(b) issue necessary directions to the respondents not to proceed with Annexure-A1 only in so far as it proceeds to select fresh candidates from open market as Senior Scientists, before considering and passing orders on OPCAT 1167/2011 4 Annexure-A2 in accordance with law and also without laying down specific Recruitment Rule for the post of Senior Scientist for selection from open market;
) issue necessary directions to the respondents not to proceed with Annexure-A1 only in so far as it proposes to conduct selection and appointment to the post of Senior Scientists;
(d) issue necessary directions to the 2nd respondent to consider and pass orders on merit on Annexure-A2 before proceeding to conduct selection to the post of Senior Scientists;
(e) Award costs of these proceedings; and
(f) Grant such other and further reliefs as this Hon'ble Tribunal deems fit and proper.
4. The relief sought for was opposed on the part of the respondents by filing a detailed reply statement. On filing a rejoinder, an additional reply affidavit was also filed disputing the facts and figures. It was also pointed out that the applicant did not have any locus standi, as he was not qualified for the post and that the Department had already issued the model qualification for selecting the best suitable person to hold the post of Scientist (S3) and selection OPCAT 1167/2011 5 process commenced from April 2010.
5. After hearing both the sides, the Tribunal found force in the contention raised on the part of the Department and held that there was absolutely no merit or bona fide in the application, whereby interference was declined and the O.A. was dismissed. This in turn is under challenge in this Original Petition.
6. Mr. P.K.Madhusoodhanan, learned counsel appearing for the petitioner submits that the finding and reasoning given by the Tribunal is not at all correct and that the case projected by the petitioner was not correctly appreciated by the Tribunal while rendering the verdict. The basic case of the petitioner projected before the Tribunal was that direct recruitment was being sought for and pursued by the respondents/Department without any regard to the relevant Rules. It is stated that by virtue of the mandate under the Rules 11(3) and (4) of the Agricultural Research Service Rules (hereinafter referred to as 'the ARS Rules'), the vacancies have to be filled up only by promotion and only in OPCAT 1167/2011 6 the absence of eligible hands in the feeder category/lower hierarchy, will the respondents be justified in going to resort to the 2nd Schedule of 'open market recruitment'. In so far as the rule has been given a 'go-bye', the Tribunal ought to have interfered with the situation and hence the petition.
7. Ms. Jismol Thomas who entered appearance on behalf of the respondents made a submission that the idea and understanding of the petitioner are thoroughly wrong and misconceived in all respects. Admittedly, despite the notification issued by the respondent concerned, the petitioner did not make any application to the post in question. It is also pointed out that the petitioner admittedly does not have the Doctoral Degree to make him eligible for applying for the post and this being the position, merely for the reason that he had already filed Annexure A-2 representation, the steps being pursued by the respondents should not have been sought to be interfered with. Learned counsel further submits that the petitioner belongs to the 'Technical Stream'; whereas Annexure-A1 Notification is in OPCAT 1167/2011 7 respect of the 'Scientist Stream' under the Agricultural Research Service wing (ARS Wing). They belong to different cadres governed by different set of Rules and Norms. It is also pointed out that at the time of selection and appointment in the year 1985, the petitioner was only a graduate and it was much thereafter, that he secured a post graduate degree. It also remains as a fact that the petitioner was granted as many as 4 or 5 promotions and that he is now holding the post of Technical Officer T 7-8. There is no vested right for the petitioner to contend that he has to be considered for promotion to the post of Scientist Cadre, i.e. in the Agricultural Research Service.
8. By virtue of the undisputed facts especially with regard to the non-possession of Doctoral Degree and such other qualifications as stipulated in Annexure-A1 and that the petitioner admittedly had not made any application in response to Annexure-A1, the point of consideration acquires a narrow compass, whether the Tribunal has erred in dealing with the matter in exercise of its power and OPCAT 1167/2011 8 jurisdiction while passing Ext.P1 and whether there is any violation of the relevant rules, detrimental to the rights and interest of the petitioner in any respect.
9. Admittedly, the petitioner has not made any application pursuant to Ext.A1 and since he does not possess the requisite qualification notified therein, it is not open for the petitioner to contend that he is eligible to be considered, unless violation of any specific provision of law which otherwise makes the petitioner eligible to apply for the post, is brought to the notice of the court or substantiated. The submission of the learned counsel for the petitioner with reference to ARS Rules 11(3) and (4) gathers momentum in this context. The said ARS Rules are extracted hereunder for convenience of reference.
"11. Future Maintenance of the Service.
xx xx (3) A Scientist may be appointed to Grade S-I, S-
2 and S-3 on promotion on the basis of merit as determined by appropriate assessment in the manner OPCAT 1167/2011 9 specified in Rule 19.
(4) The vacancies that cannot be filled up under Sub-rule (3) shall be filled by direct recruitment through the Board in the manner prescribed in Schedule II. The scientists selected may, if holding permanent posts in other organization, be initially appointed under the Council on deputation against the ARS posts for a period not exceeding 3 years, without excluding the posts from the purview of the service."
10. On going through the said ARS rules, on the basis of the submissions for moulding the case that the post of Scientist (S3) should have been filled up by promoting the candidate in lower level before proceeding with further steps for direct recruitment, it is to be noted that the said Rule is having application only among the Scientists occupying different levels/grades in the Agricultural Research Service. A reference to Rule 6 of the ARS Rules will be worthwhile in this regard which is quoted below:
OPCAT 1167/2011 10
"6. Grades There shall be the following grades in the service with pay scales, subject to revision from time to time, as indicated against each:
Grade Pay scale
Scientist (S) Rs.550-25-750-EB-30-900
Scientist 1(S-1) Rs.700-40-900-EB-40-1100-50-1300 Scientist 2 (S-2) Rs. 1100-50-1600 Scientists 3 (S-3)R.1500-60-1800-100-2000"
From the above, it is clear that the Scientists are in four different levels; the lowest being Scientist(S), the next one Scientist S1, then Scientist S2 and last one Scientist (S3). Rule 11(3) deals with the appointment of Scientist to Grade-I, S1, S2 and S3 on promotion on the basis of merit as determined in the appropriate assessment in the manner specified in Rule 19 of the ARS Rules. The vacancies arising in Scientist (S), as a result of promotion envisaged in Rule 11(1)(b) are to be filled up by selection on the basis of performance during the last five years by the Board from amongst the persons serving in the post recognized from time to time for this purpose by the controlling authority. OPCAT 1167/2011 11 No case is put forth by the petitioner that such posts have been identified by the Controlling Authority and that the petitioner is occupying one of such posts. The verticular elevation from Scientists S1, S2 and S3 by way of promotion is of course a vested right before the post in Scientist (S3) grade is sought to be filled up by direct recruitment and such a grievance, if at all any, has to be projected by the persons who are actually aggrieved and situated in the next lower level. Admittedly, the petitioner is serving in the 'Technical Stream' and not in the 'Scientist Stream' in the Agricultural Research Service. In so far as the petitioner is not a Scientist in the Agricultural Research Service as Graded under Rule 6, the channel of promotion for filling up the vacancies as prayed for, under ARS Rules 11(3) and (4) exclusively dealing with the promotion post of Scientist does not come to the support of the petitioner in any manner.
11. The issue can be approached in a different angle as well. The cause of action stated by the petitioner with OPCAT 1167/2011 12 reference to non-consideration of Annexure A-2 could be examined in this context. What has been stated by the petitioner in Annexure-A2 addressed to the 2nd respondent is that Annexure A-1 notification has been issued for recruiting as many as 1000 Scientists in the 'Council' to overcome the shortage of Scientists Cadre Strength and that this can be tackled by considering the traits and credentials of the persons who are already serving in the establishment in the Technical Cadre who possess the requisite qualifications. According to the petitioner, as many as 600 persons academically and professionally qualified are serving as Technical Officers and that a channel has to be cut open to make available the field of selection and post in the scientific service open for them as well. The petitioner has stated in the 2nd paragraph (unnumbered) that the unfortunate situation as on date is that the talents of the technical officers serving in the establishment have not been fully utilized by the 'Council' because of the prevailing policy of the ICAR. It is in the said OPCAT 1167/2011 13 circumstances that a channel is sought to be cut open to have an entry into the 'Scientists Cadre', for persons having the requisite qualification, but serving in the 'Technical Cadre'. The prayer portion contained in Annexure A-2 reads as follows:
"Hence, in the light of above, I humbly pray to the Hon'ble Chairman that academically qualified technical personnel (Category-III) may be absorbed in to ARS system by conferring ARS, based on qualification and seniority in technical service (Category-III) as done in Civil Service. This will undoubtedly cut the expenditure on the exchequer of the country at a crucial time and it is a genuine and just minimum demand of the technical personnel (Category-III). All these officers have served the Council for more than 20 years with sincerity and dedication in research work. It will certainly boost the morale of qualified technical staff in the Council which certainly enrich and uplift the agricultural research sector of the country."
12. On going through the said representation, it can be seen that the petitioner does not have a case that he is OPCAT 1167/2011 14 qualified as per Annexure A-1, nor that he is a person who is eligible to be considered as per the relevant Rules as on date. On the other hand, it is stated that the existing policy being pursued by the ICAR is quite unscientific, or inadequate in all respects to make use of the actual and available talent of the officers serving in the establishment, though in the 'Technical Cadre', and that some change in policy is necessary. This, of course, comes within the realm of the employer and it is for the employer to decide whether the existing policy is adequate enough or the same is to be changed or not. It is settled law that the Court does not have any expertise to say what shall be the policy for meeting the best interest of the organization and hence it is not for this Court to dictate terms to the respondents as to the moulding of the policy. This being the position, the petitioner who was not having the requisite qualification as stipulated in Annexure A-1 notification, was in no way eligible to have considered for selection and appointment to the Cadre of Scientist (S3). In the said circumstances, the OPCAT 1167/2011 15 verdict passed by the Tribunal by way of Ext.P1 declining interference and dismissing the O.A. is perfectly within the four walls of law, which is not assailable under any circumstances. We find that there is no violation of ARS Rules 11(3) and 11(4).
Interference is declined and the petition is dismissed accordingly.
Sd/-
P.R. RAMACHANDRA MENON JUDGE Sd/-
SHIRCY V. JUDGE ks.
True copy
P.S. (Hr.Gr.)To Judge
OPCAT 1167/2011 16
OPCAT 1167/2011 17