IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 21ST MAY 2008 / 31ST VAISAKHA 1930 WP(C).No. 35690 of 2004(S) --------------------------------------- PETITIONERS: --------------------- 1. DIRECTOR GENERAL, INDIAN COUNCIL OF AGRICULTURAL RESEARCH, KRISHI BHAVAN, NEW DELHI. 2. THE DIRECTOR, CENTRAL INSTITUTE OF FISHERIES TECHNOLOGY, MATSYAPURI P.O., KOCHI-29. 3. DIRECTOR, N.R.C. FOR OIL PALM, PEDAVEGI-534 450, WEST GODAVARI DISTRICT, ANDHRA PRADESH. BY ADV. SRI.P.JACOB VARGHESE, SC, ICAR. RESPONDENTS: ----------------------- 1. SHRI T.BALAN, S/O. THEVAN THEVAN, DEEKHAN (T-3), CENTRAL INSTITUTE OF FISHERIES TECHNOLOGY, MATSYAPURI P.O., COCHIN-29. 2. SHRI.PHILIP DURAM, S/O. MICHLE DURAM, SENIOR CARPENTER (T-3), CENTRAL INSTITUTE OF FISHERIES TECHNOLOGY, COCHIN-29. 3. SHRI.G.CHANDRASEKHARAN NAIR, S/O. GOVINDA PILLAI, RESIDING AT MANJULA NIVAS, THONNAKKAL P.O., THIRUVANANTHAPURAM, TECHNICAL ASSITANT (T-I-3), N.R.C. FOR OIL PALM, PALODE-695 562. BY ADV. SRI.P.V.MOHANAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/04/2008, ALONG WITH W.P.(C). NOS. 22437/2005 & 25310/2005 THE COURT ON 21/05/2008 DELIVERED THE FOLLOWING: W.P.(C). NO.35690/2004-S: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE O.A. NO. 697/01 ALONG WITH ITS ANNEXURES DTD. 07/07/2001. EXT.P.2: COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS IN O.A. NO. 697/01 ALONG WITH ITS ANNEXURES DTD. OCTOBER 2001. EXT.P.3: COPY OF THE REJOINDER FILED BY THE RESPONDENTS IN O.A. NO. 697/01 ALONG WITH ITS ANNEXURES. EXT.P.4: COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE PETITIONERS IN O.A. NO. 697/01 ALONG WITH ITS ANNEXURES DTD. 08/08/03. EXT.P.5: COPY OF THE JUDGMENT IN O.A. 697/01 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. C.N. Ramachandran Nair & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos.35690/04, 22437/05 & 25310 of 2005 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of May, 2008. JUDGMENT T.R. Ramachandran Nair, J. These three writ petitions are filed by the petitioners challenging the common order passed by the Central Administrative Tribunal in O.A. Nos.697/01, 923/01 & 935/01. The Tribunal allowed the Original Applications partly and directed the respondents to count the experience of the applicants in T-I-3 grade for reckoning a period of 15 years from the date of their promotion to T-I-3 grade in order to consider them for assessment promotion to T-4 grade from their position of fitment in T-3 grade. Challenging the above direction, the respondents have approached this court. 2. The short facts leading to the dispute are the following: The applicants in O.A. No.935/2001 except the 6th applicant have been placed in the revised T-3 grade with effect from 3.2.2000 consequent on the introduction of the modified Technical Service Rules from that date. As far as the applicants in O.A. No.697/2001 are concerned, they have also opted for the modified Technical Service Rules of 3.2.2000 and were placed in the WPC 35690/04 etc. -2- merged grade T-3 with effect from that date. There is only one applicant in O.A. No.923/2001. Initially, the option submitted by him under the modified Technical Service Rules was rejected and pending the O.A., he was placed in the merged T-3 grade with effect from 3.2.2000, subject to the outcome of the O.A. The prayers are identical and the applicants have sought for a declaration that they are entitled to count the service rendered in the Grade T-I-3 for the assessment promotion from the grade T-3 to T-4. 3. Before going into the merits of the matter, some of the relevant aspects governing the issue are also to be considered. The Technical Service Rules of Indian Council of Agricultural Research (shortly known as ICAR) came into being in 1977 with effect from 1.10.1975. The Technical Services are grouped into three categories, viz. Category I, Category II and Category III. Category I originally consisted of three grades, viz. T-1, T-2, T-1-3. Category II consisted of T-II-3, T-4 and T-5 and Category III consisted of T-6, T-7, T-8 and T-9. As per the original rules, and as modified in the year 2000, para 6.1 provides that 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 increments in the same grade, on the basis of the assessment of performance. The persons concerned will be eligible for consideration for such promotion or for grant of advance increments after the expiry of the number of prescribed WPC 35690/04 etc. -3- years of service in the grade. Originally, there was a category bar for assessment promotion, viz. persons in category I cannot be promoted by assessment to the grades in the next higher category. The assessment promotion was limited within the category. Ultimately, by adoption of the amended rules with effect from 1.2.1995, this category bar was taken away. The relevant copy of the same has been produced as Annexure A5 in O.A. No.935/2001 and para (i) of the same is extracted below: “i) The existing employees at level T-I-3 who possess qualifications prescribed for entry to Cat. II by direct recruitment will be placed in Grade T-II-3 of Cat. II with effect from 1.1.1995. The employees who do not possess such qualifications will in the event of improving their qualification and acquiring degree/diploma/any other qualification prescribed for entry in Cat. II by direct recruitment will be placed in grade T-II-3 from the 1st January of the year following the year in which degree/diploma/certificate is awarded. For subsequent merit promotion from grade T-II-3 to T-4 the service rendered in T-I-3 grade will count towards computation of five years of service for merit promotion.” This amendment was introduced based on the recommendation of a High Power Committee. 4. When the Technical Service Rules were modified with effect from 3.2.2000, the grades of T-I-3 and T-II-3 which were carrying the same scale of pay (Rs.4500 – 125 – 7000) have been merged into one grade, i.e. T-3. Para 6.2 of the amended rules provides the modified grade structure in categories I and II after the overlapping grades have been merged. WPC 35690/04 etc. -4- Revised Category I consists of T-1 and T-2 and Category II consists of T-3, T-4 and T-5. The applicants contended that the pre-revised scale of pay in the grades T-1-3 and T-II-3 are with the same duties and responsibilities and the service under the grade T-1-3 must be reckoned for assessment promotion from grade T-3 to T-4. Reliance is placed on para 6.9 of the modified rules. The main part of para 6.9 is extracted below: “6.9 For determining the eligibility of a person for the grant of merit promotion or advance increments, the entire period of the service in the grade including the service rendered in the pre-revised scale of pay will be counted.” 5. The applicants also placed reliance upon the order in O.A. No.2072/1997 of the Principal Bench of the Tribunal in support of the plea. It is pointed out that the same stands confirmed in Writ Petition No.2869/2001 by the Delhi High Court, as the writ petition filed against the order of the Tribunal has been dismissed. 6. Learned Senior Counsel appearing for the petitioners contended that the grade T-3 is in category II and there is no express provision in the Technical Service Rules enabling the counting of the period covered by the service in T-I-3 for assessment promotion to T-4 category. It is argued by relying upon paras 6.3 and 6.8 that merit promotion or grant of advance increments will be given only after the completion of five years of service in the grade, i.e, for assessment promotion from T-3 to T-4 they should WPC 35690/04 etc. -5- complete five years of service in T-3 grade after fulfilling the necessary qualifications prescribed for category II. It is pointed out that the Tribunal has not considered the effect of the relevant paragraphs of the modified rules while directing to reckon the service rendered in T-1-3 grade for the purpose of assessment promotion to T-4 grade. Per contra, learned counsel for the applicants placed heavy reliance upon para 6.9 to contend for the position that the same will apply on all fours and according to which, the entire period of service including the service in the pre-revised scale will be counted for determining the eligibility for grant of merit promotion or advance increments. 7. An analysis of the modified Technical Service Rules of 2000 reveals the following aspects. The overlapping grades of T-1-3 and T-II-3 have been merged into one grade, viz. T-3. The existing technical employees were given right of option and all the applicants have accordingly opted for the modified rules. The scales of pay in T-1-3 and T- II-3 grade stood at Rs.4500 – 125 – 7000 after the recommendation of the Vth Central Pay Commission. Under the recommendation of the IVth Commission also, the scales were identical. The authorities have merged these two overlapping grades into one after finding that the assessment promotion from T-1-3 to T-II-3 had become redundant. This is evident from para 6.2 of the modified rules. It is true that going by para 6.3, the WPC 35690/04 etc. -6- entrants of Category I at T-1 grade will be eligible for assessment promotion to T-2 after five years of service. Personnel in T-2 grade who are having the qualification as per the modified notification of February, 2000 for category II for direct recruitment will be eligible for assessment promotion to T-3 grade after five years of service, while those not possessing such qualifications, shall become eligible for assessment promotion to T-3 grade only after 10 years of service in T-2 grade. The assessment promotions from T-3 to T-4 and T-4 to T-5 will continue to be regulated at five years interval. It is evident that the stipulation contained in the said para does not expressly provide anything in respect of persons who have already obtained assessment promotion in the T-1-3 grade and who have been placed in T-3 as per the modified rules. Therefore, the question is whether they will be governed by para 6.9 of the relevant rules. 8. Para 6.9 expressly provides that for determining the eligibility of a person for the grant of merit promotion or advance increments, the entire period of the service in the grade including the service rendered in the pre- revised scale of pay will be counted. This aspect has also to be read along with the Order No.14(3)/94-Estt. IV dated 1.2.1995, the relevant portion of which has been noticed already. There is an express provision therein that “for subsequent merit promotion from grade T-II-3 to T-4 the service rendered in T-1-3 grade will count towards computation of five years of WPC 35690/04 etc. -7- service for merit promotion.” Thus, the indication to count the service rendered in T-1-3 grade was already there in the Technical Service Rules, going by the above notification. If para 6.9 is read along with the above, it is clear that the service rendered by the applicants in T-1-3 grade should be counted for subsequent merit promotion from T-3 grade to T-4 grade. Otherwise, the parties will be put to severe hardship. An interpretation which should avoid hardships, has to be adopted. 9. The argument raised by learned Senior Counsel against the said interpretation, according to us, cannot be sustained. Learned Senior Counsel was emphasising on para 6.8 to contend for the position that completion of five years in the grade is essential. Going by the modified rules, the entire scheme provided under the various paragraphs have to be read together and if so read, para 6.8 is subject to para 6.9. There is nothing to show that the rule making authority had intended not to count the period covered by the service rendered in T-1-3 grade when the two grades were merged and the applicants were placed in m T-3 category by the respondents themselves. In fact, the Principal Bench of the Tribunal in O.A. No.2072/1997, had considered an identical question and held that the applicants therein were entitled for the benefit of the order dated 1.2.1995. 10. The reasoning of the Tribunal is contained in para 20 of the order. The Tribunal was of the view that the applicants who have come WPC 35690/04 etc. -8- over to the new T-3 grade on the same scale with effect from 3.2.2000 can be considered on a level of parity with those who had earlier come over to the T-II-3 grade through a special dispensation. It was held that the applicants should become entitled for the assessment promotion to T-4 grade on completion of 15 years in T-1-3 grade or five years in T-3 whichever is earlier, subject further to the condition that in no case would they be entitled to be considered earlier than 3.2.2000. The Tribunal, by the above process, noted the position of the respective applicants counting 15 years from the date of their promotion to T-1-3 grade as follows:- “ Promoted Due date for consideration to T-1-3 assessment promotion to T-4 ---------------- ---------------------------------- T. Gangadharan 1.1.1996 1.1.2001 V.G. Surendranathan 1.1.1989 1.1.2004 K. Chandran 1.1.1989 1.1.2004 P. Swapnalatha 1.1.1989 1.1.2004 P. Sivadasan 1.1.1989 1.1.2004 T. Balan 1.1.1983 3.2.2000 (1.1.98) Philip Duram 1.7.1982 3.2.000 (1.7.97) G. Chandrasekharan Nair 1.1.1986 1.1.2001” It was also found that two of the applicants , viz. Shri V. Ravindran and Shri K. Soman have not yet been promoted to T3. Learned counsel for the applicants, therefore, is justified in pointing out that at any rate, the interpretation given by the Tribunal cannot be said to be against the relevant scheme, as the Tribunal has assessed the respective position based on the relevant date 3.2.2000, the date on which the modified rules came into WPC 35690/04 etc. -9- force. It was also submitted that such class of people are of a vanishing category. We find, on a reading of the order passed by the Tribunal and on an interpretation of para 6.9 that there is nothing in the scheme which goes against the interpretation adopted as above. It cannot be said that the Tribunal has acted perversely in the matter. Apart from that, going by the scheme, for further promotion to different grades, the personnel should have the specific qualifications prescribed under the relevant rules itself. The applicants who have gained entry into T-1-3 grade and who have been placed in the modified T-3 grade, cannot be deprived of the service rendered in T-1-3 grade for the purpose of assessment promotion to T-4 grade. In the above view of the matter, we uphold the order passed by the Tribunal and dismiss the writ petitions. (C.N. Ramachandran Nair, Judge.) (T.R. Ramachandran Nair, Judge.) kav/