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2008 DIGILAW 754 (AP)

The Union of India v. V. Sambasiva Rao

2008-09-10

G.BHAVANI PRASAD, GHULAM MOHAMMED

body2008
ORDER: (Per Hon'ble Sri Justice Ghulam Mohammed) Union of India filed this writ petition seeking to quash the order dated 19-4-1999 passed in O.A.No.1032 of 1996 on the file of Central Administrative Tribunal, Hyderabad Bench. At the outset, it is to be noted that this writ petition is listed before us pursuant to the common order passed by the Hon'ble Supreme Court in I.A.Nos.25-48 and 49-72 in Transfer petition (C) Nos.197-206 and 208-220 of 2005 dated 17-04-2007, by which the present writ petition was also remanded to this Court for deciding the same in accordance with law, after giving opportunity of hearing to all the parties. 2. The details relevant for deciding this writ petition are that the respondents herein filed the above O.A. with the following the following relief: " ...to declare the exclusion of the posts of Assistant Chemist and Assistant Hydrogeologists in the pay scale of Rs.2000 to 3500 or Rs.650 to 1200 (pre-revised) scale from the purview of Central Ground Water Board (Group-A posts) Recruitment Rules 1987 (now under repeal) as also Central Ground Water Board (Group-A posts) Recruitment Rules, 1995 as illegal, arbitrary and discriminatory and to declare further as resulting in the deprival of the promotional avenues of the Applicants due to the operation of the said illegal, arbitrary and discriminatory Rules and to issue consequential directions to the Respondents to include Grades of Assistant Chemists and Assistant Hydrogeologists within the purview of Central Ground Water Board (Group-A posts) Recruitment Rules, 1995 w.e.f. 06-06-1987 i.e. the date of coming into force of Central Ground Water Board (Group-A posts) Recruitment Rules of 1987 with all attendant and consequential benefits including promotions and further promotions, fixation of seniority and arrears of difference of pay and allowances of each Grade and promoted Grade." The first respondent is working as Assistant Chemist in Central Ground Water Board at Hyderabad while the other respondents are working as Assistant Hydrogeologists in the same Board and the pay-scale applicable to their posts is Rs.650-1200 (pre-revised) and Rs.2000- 3500 after revision. The posts held by respondents fall under Group-B (Class- II) Gazetted posts. It was the case of respondents that the posts of Junior Chemist/Junior Hydrogeologists, Senior Chemist/Senior Hydrogeologist and Director, are superior to the posts held by them, and that the said posts fall in the category of Group-A, and carry the pre-revised pay scale of Rs.700-1300; Rs.1100-1600 and 1200-3000 respectively. It was the case of respondents that the posts of Junior Chemist/Junior Hydrogeologists, Senior Chemist/Senior Hydrogeologist and Director, are superior to the posts held by them, and that the said posts fall in the category of Group-A, and carry the pre-revised pay scale of Rs.700-1300; Rs.1100-1600 and 1200-3000 respectively. In order to prevent the stagnation of employees in a particular post and to encourage merit and talent, the Department of Science and Technology laid down certain guidelines vide letter No.DST/MS/1(45)/82 dated 14/22-11-1983 pursuant to the recommendation of Third Pay Commission. Thus, the 'Flexible Complementing Scheme' (for short 'FCS') was introduced in the Scientific Departments to ensure that the promotion of an Officer in Scientific service from one grade to another take place after putting in a prescribed period of service. Further case of respondents was that as per the said letter, the FCS was made applicable to Group-A Officers and subsequently, extended to the scientific posts carrying the pay scale of Rs.650- 1200 vide Office Memorandum No.A-42014/2/86-A dated 28-5-1986. It is averred that the Central Ground Water Board is a scientific organisation under the control of Ministry of Water Resources and as such, the posts held by respondents are entitled to the benefit of FCS. 3. While so, the grievance of respondents before the Tribunal was that the Department of Science and Technology framed 'Central Ground Water (Group-A Posts) Recruitment Rules, 1987' (for short 1987 Rules') contrary to the earlier recommendation, thereby excluding the posts of Assistant Chemist and Assistant Hydrogeologist from the purview of FCS and denying the benefit of FCS. The respondents also contended that the 1987 Rules are also contrary to the guidelines laid down by the Department of Science and Technology dated 22-11-1983 as modified by O.M. dated 28-05-1986, which is much prior to 1987 Rules. The respondents having been excluded from the purview of 1987 Rules, seek direction to include the Grades of Assistant Chemists and Assistant Hydrogeologists within the realm of 'Central Ground Water Board (Scientific Group-A Posts) Recruitment Rules, 1995 (for short 1995 Rules') and grant consequential benefits with effect from 06- 06-1987 being the date on which 1987 Rules came into force, including promotions, fixation of seniority and arrears of salary in each grade and promoted grade. 4. 4. The case of the petitioner - Union of India before the Tribunal was that the benefit of FCS applicable to Group-A Scientists cannot be extended to Group-B of Central Ground Water Board, which was clarified by the Department of Science and Technology and that the recommendation of Fifth Pay Commission was that in view of the 'Assured Career Progression Scheme', the FCS has to be withdrawn for Group-B, C and D posts and the said recommendation is under consideration by the Government. Further, even the Group-A scientists covered by FCS get their promotion to the next higher grade on completion of the prescribed residency and the respondents are entitled to 50% quota in the promotions. The Tribunal after considering the rival contentions, directed the petitioners herein to extend the benefit of FCS to respondents and if necessary, by reviewing 1995 Rules and consider the claims of respondents for in situ promotion to Junior Chemist/Junior Hydrogeologist from the date of coming into force of 1987 Rules. 5. Heard learned Assistant Solicitor General for the petitioners and learned counsel appearing for respondents and perused the record. 6. Learned Assistant Solicitor General contended that the respondents have been holding Group-B posts and as such, the Government did not extend the benefit of FCS to them. He further contended that the Group-A officers are covered by FCS and the scheme is not applicable to Group-B posts and that the respondents have right to get 50% quota in promotions to the grade of Scientist- B. He also contended that the Tribunal had committed an error in directing the Central Government to review the 1995 Rules, if necessary, and extend the benefit of FCS; that it is impermissible for the Court to issue mandamus to frame Rules and it is for the rule-making authority to decide the matter; that the internal correspondence among the departments does not confer any right to seek the benefit of FCS. Further, the respondents cannot compare themselves with Group-A officers as the nature of duties are different, so also the channel of promotion. 7. Learned Assistant Solicitor General has relied upon the decision of the Apex Court in DIVISIONAL MANAGER, ARAVALI GOLF CLUB Vs. Further, the respondents cannot compare themselves with Group-A officers as the nature of duties are different, so also the channel of promotion. 7. Learned Assistant Solicitor General has relied upon the decision of the Apex Court in DIVISIONAL MANAGER, ARAVALI GOLF CLUB Vs. CHANDER HASS 1 wherein it was held that creation and sanction of posts is the prerogative of the executive and legislative authorities and not of the court and as such, the courts cannot direct the authorities to create the post and regularise an employee therein. 8. Sri G.Vidyasagar, learned counsel appearing for respondents has drawn our attention to Office Memorandum dated 09-11-1998 issued by Government of India, Department of Personnel and Training and contended that consequent upon the assent of the President of India, the Department of Science and Technology, the benefit of FCS was extended to Group-B officers also who are in the pay scale of Rs.650-1200 and up to the scale of Rs.2500-3000. Learned counsel further contended that when once the President has taken a policy decision, the authorities ought to have amended the Rules so as to include the Group-B officers also and non-inclusion of such officers creates anomaly and violates the equality clause. 9. We have considered the rival submissions and perused the material on record. The point that arises for consideration is whether the benefit of FCS can be extended to the respondents, who are admittedly holding Group-B posts? 10. At the outset, it is to be noticed that Central Ground Water Board (Scientific Group 'A' Posts) Recruitment Rules, 1995 have not been challenged before the Supreme Court in Civil Appeal Nos.2600-2601 of 2005 in the case of UNION OF INDIA Vs. S.K.SAIGAL. 11. In this regard, it is relevant to refer to the Office Memorandum No.A-42014/2/86-Admn.I(A) dated 28-05-1986 issued by the Government of India, Department of Science and Technology, and the relevant portion reads as under: " Government of India have been considering for quite some time that with a view to enable the Scientific Departments and scientific organisations in non- scientific departments for effective realisation of result-oriented and time- bound programmes of scientific research and technological development, they should be provided a better executive support system than hitherto available to these departments. The President is now pleased to bring about certain changes in the following areas insofar as the S & T Departments are concerned: i) Finance Procedure ii) Personnel Policy iii) Procurement Management System iv) Technical Support Service (Civil Works) (i) FINANCE PROCEDURE: xxxxx ii) PERSONNEL POLICY: While certain general principles on personnel matters such as reservation, joint consultative machinery, notification of vacancies, etc., will continue to be followed strictly, the scientific departments would otherwise be responsible for administration and management of all aspects of personnel matters relating to scientific departments. Accordingly, the present requirement of reporting vacancies of all scientific posts to UPSC for recruitment will not be necessary and scientific posts will be exempt from the purview of UPSC. Scientific posts are those which require a minimum educational qualification of Masters degree in Science or Bachelors degree in Engineering, Technology, Medicine or equivalent. The duties attached to such posts should also be primarily of a scientific nature. However, each scientific department would follow the general principles in recruitment like notification of vacancies with qualifications as prescribed in the recruitment rules, following of reservation rules, etc. They should also constitute search-cum-selection committees for every level, which should have at least 50% members including experts from outside the department. Each department will work out detailed procedure in this regard. 2. Flexible Complementing providing in situ promotion to scientists whose work is satisfactory has already been introduced in scientific departments. This is, however, at present restricted to the Grades: Rs.700-1300; Rs.1100- 1600 and Rs.1500-2000, with a provision that the total number of posts in the grade of Rs.1500-2000 will not be more than 30% of the total number of posts in the three grades. A limited application of flexible complementing is also permissible to the posts in the scale of Rs.1800-2250. Having regard to the fact that in some scientific departments there has been induction of scientists in the scale of Rs.650-1200, it has been decided to introduce flexible complementing beginning with the grade of Rs.650-1200 where this also serves as a direct recruitment grade. It has also been decided to extend the flexible complementing scheme up to the scale of Rs.2500-3000. There will no restriction as regards percentages and full flexibility will be available in all grades up to Rs.2500-3000; proven merit and record of research will be the only criteria. It has also been decided to extend the flexible complementing scheme up to the scale of Rs.2500-3000. There will no restriction as regards percentages and full flexibility will be available in all grades up to Rs.2500-3000; proven merit and record of research will be the only criteria. A minimum residency of 5 years in each grade will be required for promotion under flexible complementing." 12. A reading of the above O.M. makes it clear that the Government of India had decided to extend the FCS in some of the scientific departments to the Scientists who are in the pay scale of Rs.650-1200. Admittedly, the first respondent at the relevant time was working as Assistant Chemist and the other respondents were working as Assistant Hydrogeologists in the Central Ground Water Board at Hyderabad, and the said posts fall under Group-B category and the posts carry pay scale of Rs.650-1200. Apart from this, the communication dated 14/22-11-1983 of Secretary, Department of Science and Technology to the Ministry of Irrigation under whose control the Central Ground Water Board functions, is to the effect that the Government have approved the implementation of FCS in scientific departments under its control and a list of scientific institutions in which the FCS has to be implemented has been annexed thereto. A perusal of the list shows that the Central Ground Water Board is identified as one of the scientific institutions to implement the FCS. A close reading of O.M. dated 28-05-1986 reveals that the implementation of FCS is pursuant to the Presidential Order and any Rules framed thereafter ought not to be contrary to the Presidential Order and not take away the benefit to the employees prior to the Rules. All the respondents have been appointed when 1987 Rules were in operation and they were holding Group-B Gazetted posts carrying pay scale of Rs.650-1200 (pre-revised) and post-revised at Rs.2000-3500. 1987 Rules contemplated implementation of FCS in respect of in situ promotions to the officers of Scientist-B carrying pay scale of Rs.2200-4000 to the higher grades. Thus, the respondents are entitled to the FCS under 1987 Rules. 13. It is pertinent to state that 1987 Rules were repealed and 1995 Rules have come into effect. 1987 Rules contemplated implementation of FCS in respect of in situ promotions to the officers of Scientist-B carrying pay scale of Rs.2200-4000 to the higher grades. Thus, the respondents are entitled to the FCS under 1987 Rules. 13. It is pertinent to state that 1987 Rules were repealed and 1995 Rules have come into effect. Though the FCS was sought to be implemented in respect of in situ promotions of departmental officers in Scientist-B grade to 'C' and 'D' grades, the scientific officers who were in the pay scale of Rs.650- 1200, were not included in 1995 Rules. In fact, the communication No.21-6/91-GW/1537 dated 10-8-1994 of Deputy Secretary to Government of India, had been addressed to the Union Public Service Commission in connection with amendment to Central Ground Water Board (Scientific Group 'A' Posts) Recruitment Rules, 1987 wherein certain clarifications were made and the relevant one is as under: "i) Eventhough the proposal for inclusion of Group 'B' officers in the different scientific streams in the scale of Rs.2000-3500 in the Flexible Complementing Scheme was under consideration, a decision was taken with the approval of Secretary (NR) to exclude them as inclusion of Group 'B' would have delay further the whole exercise in view of review of Flexible Complementing Scheme." Thus, the Group-B posts were excluded in view of the delay in review of FCS and not because they are not eligible. It appears the decision to implement FCS for Group-B posts held by the respondents has not been taken so far, pursuant to the said communication. 14. Government of India, Ministry of Personnel, Public Grievances and Pensions, vide its Office Memorandum No.2/41/97-IPC dated 09-11-1998 had issued further instructions and the relevant portion reads as under: It is requested that all the Ministries/Departments, where the Flexible Complementing Scheme is in operation, may initiate action for review of the provisions of the Flexible Complementing Scheme and amend the provisions of the relevant recruitment rules so that the scheme is brought in conformity with the decisions/guidelines being conveyed vide this Office Memorandum. Results of the review may also be conveyed to the Department of Science and Technology, the nodal department for operation of the Flexible Complementing Scheme. Results of the review may also be conveyed to the Department of Science and Technology, the nodal department for operation of the Flexible Complementing Scheme. Action for extension of the Flexible Complementing Scheme to other scientific organizations, where the same is not in operation at present, may be taken in accordance with the decision contained in para-5 of this Office Memorandum. 7. The relevant provisions of Department of Science and Technology Office Memorandum No.A-42014/2/86-Admn.I(A) dated 02-05-1986 stand amended to the extent the provisions of this Office Memorandum are at variance with the provisions of the said Office Memorandum." 15. In the circumstances, the Tribunal ought not to have directed the petitioners to revise 1995 Rules so as to include the benefit of FCS for the Group-B posts. However, having regard to the Presidential Order, which has statutory force, pursuant to which the Department of Science and Technology issued O.M. dated 02-05-1986 and the consequent O.M. dated 09-11-1998, we are of the considered view that the petitioner is under obligation to implement O.Ms dated 02-05-1986, as modified by OM 09-11-1998 and take further action to implement the FCS in respect of respondents - applicants. 16. Subject to the aforesaid modification, the writ petition is dismissed.