Union Of India (Uoi) vs Scientists Association Of The ...
2002 Latest Caselaw 458 Del

JUDGMENT

S.B. Sinha, C.J.

1. A judgment and order dated 31.01.2001 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as 'the Tribunal') in O.A. No. 1786 of 1999 is the subject matter of this writ petition.

2. The first respondent herein is an association of scientists and the second respondent is its Member. They filed the aforesaid original application before the Tribunal impugning the Recruitment Rules for the post of Research Officer (in short, 'R.O.') notified on 08.07.1991 as also an advertisement being No. 46 issued by the respondent on 14.11.1987 for the following:-

"1. Department of Environment, Forest and Wildlife Scientific Group 'A' posts Rules, 1987 (Annexure A-7) issued on 27th september, 1987 (hereinafter Gr. A post Rules 1987),

2. Scientific and Technical Group 'A' (Gazetted Posts) in the Ministry of Environment, Forests and Wildlife, etc. (in-situ promotion under Flexible Complementing Scheme) Rules, 1998."

3. By reason of the said advertisement, the Union Public Service Commission (in short, 'UPSC') invited applications for ten posts of 'Research Assistant' (in short, 'R.A.') in the Department of Environment, Forests and Wildlife (in short, 'the Department').

4. In the said advertisement, it was categorically stipulated:-

"PROSPECTS OF FROMOTION: junior Environmental Officer in the scale of Rs. 2200-4000".

5. A number of members of respondent No. 1 applied where after five candidates were recruited to the rank of 'Junior Environmental Officer' (in short, 'J.E.O.') in the scale of Rs. 2200/-- Rs. 4000/-.

6. A representation was filed containing that the Rules known as Group 'A' Posts Rules, 1987 (in short, 'the said Rules') issued by the respondents on 23.09.1987 provide for avenues for promotion for the employees as well and despite the same they have been stagnant in the pay scale of Rs. 1,640/-- Rs. 2,900/- drawn by then as R.A.s.

7. The petitioner herein replied thereto to the said representation by a letter dated 06.03.1990 in the following terms:-

"Subject: Recruitment to the post of Research Assistant.

Shri/Smt/Km Om Prakash is informed that it has been accepted in principle by the Ministry of Environment & Forests that there will be promotions to the lowest rung of scientific group 'A' posts from group 'B' posts in the scale of Rs. 2000-3500. In order to provide this promotional avenue to the Research Assistants in the Environment Division, this Ministry is considering the creation of pots of Research Officer in the scale of Rs. 2000-3500. The promotional avenue thus being made available to the Research Assistants is brought to your notice so that you may take a decision regarding your absorption in this Ministry after completion of your probationary period. In case you don't wish to continue in this post of Research Assistant you may indicate your option in writing to administration by 31.3.90 failing which it will be presumed that the promotional avenue as outlined above is acceptable to you. In case the existing promotional avenues are not acceptable to you, you will be reverted to your parent department."

8. Yet again on 04.06.1990, on a further representation made by the respondents, it was stated:-

"Subject: Recruitment to the posts of Research Assistant

With reference to his/her representation dated 29.3.90 Shri/Smt/Km Om Prakash, Research Assistant is herby informed that his/her representation has bene re-considered. It is again pointed out that the prospect of promotion to the scale of Rs. 2200-4000 indicated in the advertisement referred to is not being denied to him/her. However, the channel of promotion which was not laid down earlier is now being established as already intimated to them vide not of even number dated 6.3.90.

It is therefore, requested that your option regarding absorption in the post of Research Assistant in this Ministry may kindly be sent so as to r each Administration (PGP-I) on or before 15.6.90 failing which further action regarding reversion to your parent Department will be taken."

9. The learned Tribunal inter alia held that in accordance with the aforesaid Rules, several employees have been promoted to the rank of R.O. and had been drawing the salary in the pay scale of Rs. 2,000/- Rs. 3,500/-.

10. Before the learned Tribunal as also before us, the contention of the petitioner is two-fold:-

"(i) Promotional chances to the post of J.E.O. were brought out in the aforementioned advertisement dated 14.11.1987 by an inadvertent mistake, as the said post never existed. Only at that point of time there had been a proposal, which never materialized.

(i) Having regard to Rule 5.3, the post of Scientists 'SC' are meant for fresh recruits and not for the promotes."

11. However, we may notice that our attention has been drawn to the fact that a Committee had bene constituted for looking into t he career prospects of Group 'B' Scientists and technical personnel in scientific Ministries/Departments under the Chairmanship of one Shri Y.S. Rajan and the matter is pending before the Ministry of Finance.

12. The respondents, on the other hand, would contend that only the post of J.E.O. had been re-designated as Scientist 'SC' and as such there cannot be any reason as to why they cannot be promoted to the re-designated post of Scientist 'SC'.

13. In any event, in terms of Rule 5.3 of the said Rules, their cases for recruitment as Scientists 'SC' by way of promotion can be considered.

14. Annexure 2 to the said Rules, which insofar as relevant for the purpose of this case, is as follows:-

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SC SD SE SF SG G H

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Rs. 2200- Rs. 3000- Rs. 3700- Rs. 4500- Rs. 5100- Rs 5900- Rs. 5900-

75-2800- 100-3500 125-4700 150-5700 200-5700 200-6700 200-7300 EB-100- 125-4500 150-5000 200-6300

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Master's degree
in Science or  Fresh  +5       +10
equivalent

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Bachelor's
degree   in
engineering,  Fresh    +5      +10
technology  or
equivalent.

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M.B.B.S.  or 
equivalent   Fresh    +5       +10

-------------------------------------------------------------------------------

Doctorate  in
Science,
technology or   -    Fresh     +5
engineering

-------------------------------------------------------------------------------

Note:

1. XXX

2. +5, +10 denote minimum number of years of experience required in addition to basis educational qualifications.

3. XXX

4. XXX

5. XXX

6. XXX

15. It is inconceivable that a mistake in the advertisement as regards existence of promotional avenue took place, which is sought to be rectified after the appoints had served the Organization for more than 10 years. The Apex Court in no uncertain terms in a number of decisions had categorically emphasized the need for providing promotional avenue for the employees.

16. In Dr. Ms. O.Z. Hussain v. Union of India & Ors. it was held:-

"7. This Court, has more than one occasion, pointed out that provision for promotion increases efficiency of the public service while stagnation reduces efficiency and makes the service ineffective. Promotion is thus a normal incidence of service. There to o is no justification why while similarly placed officers in other Ministries would have the benefit of promotion, t he non-medical 'A' Group scientists in the establishment of Director General of Health Services would be deprived of such advantage. On a welfare State, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health of attend to the representations of the Council and its members and provide promotional avenue for this category of officers. It is, therefore, necessary that on the model of rules framed by the Ministry of Science and Technology with such alterations as may be necessary, appropriate rules should be framed within four months from now providing promotional avenue for the 'A' category scientists in the non-medical wing of the Directorate."

17. In the aforesaid case, the Apex Court has clearly directed creation of such promotional posts. In the instant case, a specific statement was made in the advertisement to the effect that there exists promotional avenues.

18. The petitioner, unless there exist cogent reasons, cannot be permitted to resile from the said representation.

19. It is expected that the advertisement had been issued upon proper deliberation. The Rules must have been interpreted by the petitioner so as to enable it to find out that there existed promotional avenues as otherwise there was absolutely on reason as to why the same had been specifically mentioned. Had such promotional avenues been not there, the advertisement would not have reflected the promotional prospects of J.E.O.

20. In a latter dated 04.06.1999, the Ministry of Environment and Forests stated:-

"No. A-12013/2/85-PGP-I

Government of India

Ministry of Environment & Forests

Department of Environment, Forests & Wildlife

Paryavaran Bhawan,

CGO Complex,

Lodhi Road,

New Delhi-110003

Dated, 4th June, 1990

Subject: Recruitment to the post of

Research Assistant.

With reference to his/her representation dated 29.3.90 Shri/Smt/Km. Om Prakash, Research Assistant is hereby informed that his/her representation has been re-considered. It is again pointed out that the prospect of promotion to the scale of Rs. 2200-4000 indicated in the advertisement referred to is not being denied to him/her. However, the channel of promotion which was not laid down earlier is now being established as already intimated to them vide note of even number dated, 6.3.90.

It is therefore requested that your option regarding absorption in the post of Research Assistant in this Ministry may kindly be sent so as to reach Administration (PGP-I) on or before 15.6.90 failing which further action regarding reversion to your parent Department will be taken.

(ANJALI ANAND SRIVASTAVA)

UNDER SECRETARY TO THE GOVT. OF INDIA

Shri Om Prakash,

Research Assistant"

Yet again in the said Rules, it is categorically stated:-

--------------------------------------------

(1) (2)

--------------------------------------------

Junior Environment Officer,     Scientist SC
EF Scientist 1, FRI              -do-

--------------------------------------------

21. The very fact that the post of Scientist 'SC' the nomenclature of Scientists 'SC' came into being upon re-designation of the post of J.E.O., it is, in our opinion, ideal to contend that the post of J.E.O. was not available.

22. In fact, the respondents themselves had granted promotion to the said post to one Dr. R.K. Rai.

23. Furthermore, had there been a mistake in the said advertisement, it was expected that the same not only would have been found out by UPSC, but also by the authorities soon thereafter and a corrigendum therefore could have been issued. In any event, the power of relaxation could have been exercised by them.

24. In that view of the matter, the submission of Mr. Gangwani to the effect the matter has been considered by the Rajan Committee is of no relevance. The said Committee admittedly had been constituted for a limited purpose of promotional prospects of Group 'B' and 'C' posts where the educational qualifications are Bachelors Degree or less.

25. It may or may not be concerned with the posts wherefor the qualifications are Post Graduates Degree.

26. Furthermore, the Ministry of Environment and Forests had three wings, namely,

(i) Forest Survey of India;

(ii) Wildlife; and

(iii) Autonomous institutions coming under Ministry of Environment and Forests

27. In all those wings, promotion from the pay scale of Rs. 1,640/---Rs. 2,900/- is to the post of pay scale of Rs. 2,200/-- Rs. 4,000/-. Thus, there cannot be any reason as to why such promotional prospects be denied to the respondents.

28. In any event, the said Rule 5.3 of the said Rules clearly spells out the mode of recruitment of Group 'A' Scientists posts. Such posts can be filled up also by way of promotion.

29. Even in order of sequence, promotion comes first where after the cases of direct recruitment would come.

30. The expression "fresh" appearing in the said Rules for Group 'A' Scientists cannot be equated with the expression "direct recruitment" . No reason therefore has been assigned nor in the precedent in relation thereto has been cited. The word "fresh" in its ordinary meaning and particularly having regard to the context must be held to mean that the same would denote that no experience is necessary therefore.

31. The aforesaid argument is fortified by the fact that in relation to other posts, fresh 5 years has been mentioned, which would denote that in such cases 5 years experience would be necessary.

Furthermore, Rule 5.3 of the said Rules reads thus:-

"5.3. Recruitment shall be by promotion, transfer on deputation (including short term contract), transfer or by direct recruitment. The particular method of recruitment for each vacancy shall be decided by the Secretary. Whenever the posts are to be filled up by direct recruitment the posts shall be advertise din the newspaper or by such appropriate methods as the Secretary deems fit."

32. The aforesaid Rule clearly specifies appointment for promotion as one of the modes of appointment and in that view of the mater, the word" fresh", in our opinion, cannot be construed in a narrow or pedantic sense nor the suggestive meaning of "direct recruitment" can be assigned to it.

33. The very fact that a specific provision has been laid down in the aforesaid Rule 5.3 of the said Rules to the effect that whenever posts are to be filled up, the same shall be advertised in the newspaper or by such appropriate methods as the Secretary deems fit, is clearly suggestive of the fact that for the said post, the cases of the respondents could have also been considered.

34. In Council of Scientific and Industrial Research and Anr. v. K.G.S. Bhatt and Anr. it has been held:-

"9. That then is the scope of bye-law 71(b)(ii). But that does not mean that we should interfere with the relief granted to respondent 1. By pointing out the error that crept into the decision of the Tribunal we need not to take to its logical end which will defeat justice. Respondent 1 is not a layman. He is a highly qualified engineer. Although he joined service with a diploma in engineering he later passed Bachelor of Engineering (B.E.) and also acquired M. Tech. Degree and one more diploma (D.P.M.). He was, however, left without opportunity for promotion for about twenty years. This is indeed a sad commentary on the appellants management. It is often said and indeed, adroitly, an organization public or private does not hire a hand' but engages or employs a whole man. The person is recruited by an organization not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organization. It is an incentive for personnel development as well. (See Principles of Personnel Management, Flipo Edwin B., 4th edn. p. 246) Every management must provide realistic opportunities for promising employees to move upward. "The organization that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low morale, and ineffectual performance, among both non-managerial employees and their supervisors."

(See Personnel Management, Dr. Udai Pareek, p.

277) There cannot be any modern management much less any career planning, manpower development, management development, etc. which is not related to a system of promotions. (See Management of Personnel in Indian Enterprises, Prof. N.N. Chatterjee, Chap. 12, p.128) The appellant appears to have overlooked this basic requirement of management so far as respondent 1 was concerned till NR & AS was introduced.

10. Respondent 1 has alleged in the counter-affidavit that electrical engineers, mechanical engineers, refrigeration engineers, glass blowers, etc. were promoted treating them as 'technical' personnel. He has stated that electrical engineer deals with electrical service. Mechanical engineer looks after laboratory equipments. Glass blower takes care of glass apparatus. Refrigeration engineer provides cold storage.It is said that they got benefit of promotion under bye-law 71(b)(ii). Not merely that even some of the plumbers, masons, mates, polishers, etc. who were working under respondent 2 were said to have been classified as 'technical' for giving them promotion. These averments have not been denied or disputed in the reply affidavit filed on behalf of the appellant. We have referred to these averments only to highlight the injustice done to respondent 1 and not to impeach the validity of categorization. Indeed, we cannot meddle with the categorization since it was done by the Expert Committee."

35. We are, therefore, having regard to the peculiar facts and circumstances of this case, of the opinion that it is not a fit case where this Court in exercise of its jurisdiction under Article 226 of the Constitution of India would interfere with the order of the learned Tribunal.

36. This writ petition is accordingly dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.