Judgment:
Shekhar Agarwal, Member (A)
Following relief has been sought in this O.A.:-
œThat the Honble Tribunal may graciously be pleased to pass an order of quashing the impugned orders dated 5.12.2011, 16.12.2011 and 23.12.2011 (Annexure.A/1 to A/3) by which the respondents merged the post of Assistant Director (Bio-Chemistry, earlier junior Biochemist, with the post of Assistant Director (Chemistry), declaring to the effect that the same is illegal, arbitrary and against the rules.?
2. Brief facts of the case are that the applicants were working as Assistant Director (Chemistry) in the Central Insecticide Laboratory (in short CIL) in the Ministry of Agriculture and Cooperation. According to them the next promotional post for them is Dy. Director (Chemistry), then the Joint Director (Chemistry) and further Director (Chemistry). They have submitted that there were five posts of Scientific Officer in Chemistry Division whose pay scales were revised to Rs.15600-39100 + Grade Pay of Rs.5400 by the VI CPC. Two posts of Assistant Director (Chemistry) in the Chemistry Division of National Institute of Plant Health management, Hyderabad were also in the same pay scale. There was one post of Junior Biochemist in the Toxicology Division of CIL. This post was also in the same pay scale. Prior to recommendations of V CPC, the notified Recruitment Rules prescribed the following essential qualification for these posts:-
S.No. Scientific Officer Assistant Director (Chem) Junior Biochemist
1. Essential
(I) Master degree in Agriculture Chemistry, Organic Chemistry OR Analytical Chemistry
(II) Three years experience of Organic Chemical Analysis, Analytical Analysis OR Agricultural Chemical Analysis. Essential
(I) Master degree in Agriculture Chemistry, Organic Chemistry OR Analytical Chemistry.
(II) Three years experience of Organic Chemical Analysis, Analytical Analysis OR Agricultural Chemical Analysis. Essential
(I) Master Degree in Medical Bio-Chemistry OR Master Degree in Biochemistry with specialization in the field of Medical Biochemistry OR Master degree in Medical Laboratory Technology (Biochemistry) from a recognized University
(II) Ten years of experience in the field of Biochemical evaluation in pre-clinical/non clinical studies.
(III) Experience in handing of clinical analyzers used in biochemical evaluation in pre-clinical/non-clinical studies.
The duties of the posts prescribed were as follows:-
S.No. Scientific Officer Assistant Director (Chem) Junior Biochemist
1. (I) To conduct analysis of Pesticides and their formulations.
(II) Interpretation of analytical Methods used for the Pesticides analysis.
(III) Compilation Of analytical Methods used for the Pesticides analysis.
(I) To conduct analysis of Pesticides and their formulations.
(II) Interpretation of analytical result.
(III) Compilation of analytical Methods used for the Pesticides analysis. (I) to carry out the Clinical Test on Animals/Toxicological Test.
(II) Compilation of Medical Toxicological/Clinical Data.
2.1 The applicants have stated that from the above it is clear that while the duties and qualifications of Scientific Officer and Asstt. Director (Chemistry) were same, the qualification and duties of Junior Biochemist post were entirely different. The Junior Biochemist post was carrying Medical Specialist Qualification as M.Sc, Biochemistry. For this reason the V CPC recommended merger of Scientific Officer and Assistant Director (Chemistry), it did not recommend merger of Junior Biochemistry with these posts. However, the official respondents whimsically merged all the three cadres into a single cadre and re-designated them as Assistant Director (Chemistry) vide their order dated 04/13.05.2003.
2.2 The applicants have gone on to state that Assistant Director (Chemistry) and Scientific Officers were discharging the statutory duties as per the Insecticide Act, 1968, whereas Junior Biochemist was not notified to discharge these duties. Further for the post of Deputy Director (Chemistry) which is the next higher promotional post for Assistant Directors, the essential qualifications prescribed are as follows:-
œEssential Qualification:
M.Sc Degree in Agricultural Chemistry, Organic Chemistry OR Analytical Chemistry.
Seven years experience in administration of Organic Chemistry OR Analytical Chemistry OR Agricultural Chemistry.
Desirable Qualification:
Administrative Experience.
Doctorate Degree in the field of Insecticide/Pesticides.
Knowledge and experience of handling modern Instruments used in the analysis of Insecticide and Pesticides.?
2.3 The applicants have further gone on to state that in the Employment News dated 08-14.03.2008 the post of Deputy Director (Chemistry) was advertised by official respondents for filling up by direct recruitment. The private respondent No. 4 who at that time was working as Assistant Director (Chemistry) also applied for this post but was not called for interview by the Union Public Service Commission on the ground that she did not have the requisite qualification as per Recruitment Rules. She then approached the Tribunal seeking a declaration that M.Sc in Bio-Chemistry be treated equivalent to M.Sc in Agricultural Chemistry, Organic Chemistry OR Analytical Chemistry. This O.A. was, however, dismissed by the Tribunal and her candidature was rejected.
2.4 The applicants have also stated that the Ministry of Agriculture vide its order dated 21.09.2010 gave In-principal approval for implementation of Good Laboratory Practices policy in Medical Toxicology (MT), Division of CIL as well as in the Directorate of Plant Protection Quarantine and Storage. In pursuance of this policy DAC passed order dated 22.02.2011 by which the post of Junior Biochemist was again de-merged from the post of Assistant Director (Chemist) and restored to Medical Toxicology Division with immediate effect. This was followed up by order dated 17.06.2011 by which the respondent No.4 was re-designated as Assistant Director (Biochemistry) instead of Assistant Director (Chemistry). However, vide impugned order dated 05.12.2011 the respondent No.2 has again de-merged and restored the post of Assistant Director (Biochemistry) to the Chemistry Division retrospectively vide order dated 05.12.2011. Further on 16.12.2011 by another order respondent No. 4 was re-designated as Assistant Director (Chemistry). Aggrieved by these orders, the applicant No. 3 made a representation but this was rejected by the respondents vide their impugned order dated 22.12.2011. Hence, this O.A. has been filed. Applicants have contended that promotional posts in their cadre are limited and merging an outsider like respondent No.4 in their cadre, blocks their promotional avenues.
3. In reply filed on behalf of official respondents, it is stated that V CPC had recommended to improve in promotional opportunities of those holding isolated posts where the promotional opportunity was almost non-existent. In compliance of these recommendations, the post of Junior Biochemist was merged in Chemistry discipline and re-designated as AD (Chemistry) vide order dated 07/13.05.2003. The Recruitment Rules notified in the official gazette on 16.03.2004 gave affect to this merger. Further, in these Rules, exemption was given with respect to qualifications for promotion to Deputy Director and Joint Director (Chemistry) to enable junior Bio-chemist also to become eligible for such promotion. The respondent No.4 is in the seniority list of AD (Chemistry) since August 2004 after framing of these rules.
3.1 The official respondents have further stated that even prior to V CPC one Assistant Director, namely, Dr. Day having Biochemistry qualification was posted in Chemistry Division of CIL. The functions of Junior Bio-chemist in Toxicology and Scientific Officer (Chemistry) in Chemistry Division of CIL are complementary and supplementary so far as conducting of analysis of insecticides are concerned. Therefore, the basic requirement related to analysis of pesticide is sufficient to en-cadre the post of Junior Biochemist in Toxicology Division in the organized cadre of Scientific Officer (Chemistry) re-designated as Assistant Director (Chemistry) of CIL.
3.2 On this basis, the official respondents have contended that the averments of the applicants are baseless. Respondent No.4 has been in the seniority list of AD (Chemistry) since 2004 whereas the applicants who are junior to her have been promoted as AD(Chemistry) only w.e.f. 01.10.1997 and 10.07.2007 respectively. They have all along been junior to respondent No.4. Even in the final seniority list of AD (Chemistry) issued on 30.12.2011 all the three applicants have been shown junior to respondent No.4.
4. Private respondent No.4 has also filed reply in which she has stated that the present O.A. is totally misconceived and hopelessly barred by limitation. This is because the applicants are essentially challenging merger of the post of Junior Biochemist with that of Assistant Director (Chemist) which took place in the year 2003 as a part of over all restructuring of the department though they have impugned orders dated 05.12.2011, 16.12.2011 and 22.12.2011. This is only a veiled attempt to challenge the order dated 07/13.05.2003. The aforesaid order had been given a statutory recognition by the Recruitment Rules notified in the Gazette of India on 03.04.2004. Further, the respondent No. 4 has argued that applicants have no locus standi to challenge this merger because when it took place they were not even born in the cadre of Assistant Director (Chemistry). It is also settled law that merger, de-merger and restructure of cadres/posts etc. is a policy decision of the Government and falls in the exclusive domain of the administrative authorities. The Courts/Tribunals have no role to play therein. In this regard the respondent No.4 has relied on the judgment of Honble Supreme Court in the case of P.U. Joshi and Ors. Vs. Accountant General, Ahmedabad and Ors., (2003) 2 SCC 632.
4.1 Respondent No.4 has further argued that when the final seniority list of AD (Chemistry) was circulated by the official respondents on 30.12.2011, the applicants who were placed below her did not raise any objections at that time. Further, she has stated that she was promoted as Dy. Director in the year 2012 whereas applicant No.1 and applicant No.2 became eligible for promotion in January 2013 and got promoted in July 2013. Even now there are vacancies of Dy. Directors but there is no eligible person having five years of requisite service.
5. We have heard the parties and have perused the material on record.
5.1 In our opinion, confusion has been created by official respondents who have been passing contradictory orders repeatedly. First they decided to merge the post of Junior Biochemist with Assistant Director (Chemistry) and passed an order on 07/13.05.2003. They even notified the Recruitment Rules incorporating this merger. However, again on 22.02.2011 they passed an order de-merging the post of Asstt. Director (Chemist). Consequently, they also re-designated respondent No.4 as Assistant Director (Biochemist) vide their order dated 17.06.2011. Thereafter, again they passed the order dated 05.12.2011 superseding the order dated 22.02.2011 by which the post of Asstt. Director (Biochemist) had been demerged from the cadre of Asstt. Director (Chemist). Thereafter, they also passed an order dated 16.12.2011 again designating respondent No.4 as Asstt. Director (Chemist). As a consequence of these orders, they also rejected the representation of applicant No. 3 vide their order dated 22.12.2011. Had it not been for these contradictory orders which were issued and then rescinded, the position would have been as it stood after passing of order dated 07/13.05.2013 by which the post of Junior Biochemist was merged in the cadre of Asstt. Director (Chemist). Thus, there is merit in the contention of the private respondent that the applicants are in effect challenging the merger which took place in 2003. Since they have done so only by filing this O.A. on 12.01.2012, we agree with respondent No.4 that this case is barred by limitation.
5.2 On merits also we do not find force in the arguments of the applicants. We notice that the merger affected in 2003 was also provided as statutory lacking by the Recruitment Rules notified on 03.04.2004. In our opinion, the orders passed by the official respondents on 22.06.2011 (by which post of Junior Biochemist was demerged) and order dated 17.06.2011 (by which private respondent No.4 was redesignated as Asstt. Director (Biochemist) were contrary to the provisions of the Recruitment Rules. In their arguments, the private respondent No.4 has stated that this was done because the Ministry on thinking of creating a separate cadre for Toxicologists. However, later on they abandoned this idea as they were not able to create Toxicologist post of Deputy Director and Joint Director level and was left with no promotion post of AD (Biochemist). Consequently, they rescinded these orders by their orders dated 05.12.2011 and 11.12.2011.
5.3 The applicants had taken the argument that the post of Deputy Director did not have Biochemist qualification and consequently the candidature of the respondent No.4 had been rejected by UPSC when she had also applied for this post in response to an advertisement issued in Employment News dated 08-14.03.2008. This rejection was also upheld by the Tribunal when OA. filed by respondent No.4 against this rejection was rejected by the Tribunal. However, we notice that this rejection was for direct recruitment. As far as promotion is concerned, it is mentioned in the Recruitment Rules that the prescribed educational qualifications will not be required for incumbents holding the post of Asstt. Director (Chemist). Even for the next higher post of Joint Director (Chemist) the Recruitment Rules prescribe that in case of promotion incumbents holding the post of Junior Biochemist re-designated as Asstt. Director (Chemist), educational qualification would not be required. Moreover, these Recruitment Rules have not been challenged by the applicants. Hence, on the basis of rejection of her candidature for the post of Deputy Director as a direct recruit, we cannot infer that merger of her post of Junior Biochemist with Asstt. Director (Chemist) was unjustified.
5.4 The applicants had argued that the qualification prescribed for the post of Asstt. Director (Chemistry) was entirely different and a degree in Biochemistry which the respondent No.4 possesses cannot be in any way treated equal to a Chemistry Degree. Further, they stated that even the duties prescribed for the post of Asstt. Director and Junior Biochemist were different. This has been disputed by the official respondents who have stated in their reply that the functions of Junior Biochemist in Toxicology and Scientific Officer (Chemistry) in that Division of CIL were complementary and supplementary so far as conducting of analysis of insecticides are concerned. Therefore, the basic requirement related to analysis of Pesticides is sufficient to encadre the post of Junior Biochemist in the organized cadre of Scientific Officer re-designated as Asstt. Director (Chemistry). In view of this categorical assertion of the official respondents we are inclined to agree with them in this regard. In any case, this issue falls in the domain of the Executive and official respondents are best placed to decide this.
5.5 The applicants also stated that they were notified to discharge statutory functions under the Insecticides Act, 1968 whereas Junior Biochemist was not notified as such. The respondent No. 4 in her reply has stated that she has also been duly notified for carrying out these statutory duties. In this regard we have seen the Notification dated 14.12.2011 issued under the powers conferred by Section-20 of Insecticides Act, 1968 read with Rule-26 of Insecticides Rules, 1971. In this Notification various officers/employees have been notified to perform statutory functions under this Act. At Serial Nos. 25 to 28 the applicants as well as respondent No.4 have been notified. This Notification is available at pages 197 to 205 of the paper-book.
5.6 Lastly, the applicants had argued that merger of an outsider like respondent No. 4 in their cadre will block their promotional avenues since in any case very limited number of posts are available for their promotion. This contention has also been disputed by respondent No. 4 who has stated that she got promoted as Deputy Director in 2012 whereas applicants No. 1 and 2 were so promoted in July, 2013. Further, she has stated that even now vacancies of Deputy Director are available but there is no eligible person having requisite 05 years of service for promotion. In view of these submissions, we do not find merit even in this argument of the applicants.
6. On the basis of the above analysis, we come to the conclusion that not only this O.A. is barred by limitation but it also lacks merit. The actual merger of Junior Biochemist with Asstt. Director took place in the year 2003 and this was given statutory backing by the Recruitment Rules amended on 03.04.2004. The applicants have not only delayed filing this O.A. but have also not challenged the Statutory Rules giving sanction to this merger. Moreover, none of the grounds taken by the applicants has any force. Consequently, we dismiss this O.A. No costs.