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3.2 It is also contended by the applicant that there is no restriction on the number of promotions on merit in the case of employees in the Administrative Service of ICAR, whereas the number of promotions to the personnel in the Technical Service of ICAR has been restricted to two. Such restriction on the number of promotions in the case of the personnel in the Technical Service of ICAR, being discriminatory, is violative of Articles 14 and 16 of the Constitution of India. 

 OA 862/14                             6                 Kay Prasad v. DG,ICAR & ors




3.3          Referring to the DoP&T's O.M. No.1/1/2010-Estt.(Pay-I),

OA 862/14 7 Kay Prasad v. DG,ICAR & ors

4. In their counter reply, the respondents have, inter alia, stated that the ICAR is a society registered under the Societies Registration Act. The Governing Body, constituted in terms of its Memorandum of Association, manages its affairs. The Governing Body is competent to frame Rules and also to amend them. The power to make Rules and amend them also includes the power to give retrospective effect to the Rules so framed. In the present case, the Governing Body took a conscious decision to amend Rule 6.1 and paragraph 6.13 of Appendix III for Categories I, II and III under Rule 6.13 of the Technical Service Rules retrospectively. It is settled law that even the accrued rights, or vested rights, can be taken away, if it is so expressly provided by the legislature, or the Rule making authority, as the case may be. In the present case, it has been expressly provided that the amendment would be effective from 2006, i.e., retrospectively. The concept of vested rights, or accrued rights, would arise only, if it is expressly provided that the amendment would not be retrospective. The Technical Service Rules, as originally framed, provided for three advance increments to compensate an employee for lack of promotional avenues. However, it was found that advance increments granted were way beyond the benefits that would accrue to the same employee consequent upon promotion. It is in that perspective that the matter was reviewed, and the Rule was amended. Thus, it cannot be said that the amendment providing for one advance increment is arbitrary or unreasonable. As per Rule 21 of the Bye-laws of the Society, the posts in the Council are categorized as: (a) Scientific, (b) OA 862/14 8 Kay Prasad v. DG,ICAR & ors Technical, (c) Administrative, and (d) Supporting. The parity sought to be drawn between the employees who belong to Administrative Service, and those who belong to Technical Service, is misconceived. The two services belong to separate streams, and there can be no comparison between the two classes. The merit promotions are granted to the employees in the Technical Service of the ICAR from one grade to the next higher grade on the basis of assessment of performance, irrespective of the occurrence of vacancies in the higher grade(s), as per the provisions of the Technical Service Rules, whereas the promotions to the personnel in the Administrative Service are granted on the occurrence of vacancies in the higher grade(s) in their cadre as per the rules governing their promotions. Hence, the personnel in the Administrative Service of the ICAR are placed on a footing different from that of the personnel in the Technical Service of the ICAR. In view of the above, the respondents have submitted that the applicant is not entitled to any of the reliefs prayed for in the O.A.

10. As regards the DoP&T's O.M. dated 6.12.2012, ibid, relying on which the applicant also questions the validity and legality of the circulars dated 11.6.2012 and 22.4.2013, ibid, we have found that the said DoP&T's O.M. dated 6.12.2012 relates to the Stenographers in Subordinate Offices of the Central Government, while the ICAR is a Society registered under the Societies Registration Act, and the Governing Body of the Society is the authority which is competent to frame and amend the Rules relating to grant of advance increments to the personnel in the Technical Service of ICAR. When the Rules governing the promotions and grant of advance increments to the personnel in the Technical Service of the ICAR, and the Rules governing the promotions and the decisions regarding the grant of advance increments to the Stenographers in Subordinate Offices of the OA 862/14 14 Kay Prasad v. DG,ICAR & ors Central Government are distinctly different, the applicant or, for that matter, other personnel in the Technical Service of the ICAR, cannot claim as a matter of right to be granted advance increments as admissible to the Stenographers of Subordinate Offices of the Central Government. Therefore, the DoP&T's O.M. dated 6.12.2012, ibid, is of no help to the case of the applicant.

11.2 Admittedly, the applicant was granted three advance increments with effect from 1.1.2007 under the provisions of the Technical Service Rules, vide office order dated 17.12.2008 (Annexure A/5). The excess amount paid to the applicant and other similarly placed personnel in the Technical Service of ICAR was not on account of any misrepresentation made by them, nor was it on account of any fraud committed by them. The excess amount became recoverable from them only in terms of the circulars dated 11.6.2012 and 22.4.2013, ibid, by which Rule 6(1) and paragraph 10 of Appendix III for Categories I, II and III under Rule 6.13 of the Technical Service Rules were amended with effect from 1.1.2006. Therefore, as per the ruling given by the Hon'ble Supreme Court in paragraph 12 (iii) of the judgment in State of Punjab & others, etc. Vs. Rafiq Masih (White Washer), etc. (supra), the recovery of the excess amount from the applicant and other similarly placed personnel in the Technical Service of ICAR, as ordered by the respondents in June 2012 and April 2013, is impermissible in law.