(Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorarified Mandumus to quash the order of the Hon'ble Central Administrative Tribunal, Madras Bench made in O.A.No.1041 of 2003 dated 14.10.2004 confirming the order of the 2nd respondent herein made in No.EP-13(16)/T3-ECD-1 dated 31.05.2002 after calling for the records and direct the 2nd respondent herein to extend the scheme of five yearly assessment for promotion on merit to the petitioner and advance increment in conformity with Dr.Ramamurty's Reviewing Committee report which has already been extended to ICMR Scientific Staff with effect from 01.01.1990 and consequently pay the arrears of salary and to grant promotion to the petitioner in conformity with Rule 8 of the Department of Health [Group 'A' Gazetted Non-Medical Scientific and Technical Posts] Insitu Promotion Rules, 1990 with effect from 01.01.1990 and pay the arrears of salary with interest.)
P. Kalaiyarasan, J.
1. The petitioner has preferred the present Writ Petition for issuance of Writ of Certiorarified Mandamus to quash the order of the Hon'ble Central Administrative Tribunal, Madras Bench made in O.A.No.1041 of 2003 dated 14.10.2004 confirming the order of the 2nd respondent herein made in No.EP-13[16]/T3-ECD-1 dated 31.05.2002 after calling for the records and direct the 2nd respondent herein to extend the scheme of five yearly assessment for promotion on merit to the petitioner and advance increment in conformity with Dr.Ramamurty's Reviewing Committee report which has already been extended to ICMR Scientific Staff with effect from 01.01.1990 and consequently pay the arrears of salary and to grant promotion to the petitioner in conformity with Rule 8 of the Department of Health [Group 'A' Gazetted Non-Medical Scientific and Technical Posts] Insitu Promotion Rules, 1990 with effect from 01.01.1990 and pay the arrears of salary with interest.
2. The petitioner s representation to the 2nd respondent was rejected in its order dated 31.05.2002 and he challenged the same before the Central Administrative Tribunal [herein after referred to as CAT] in O.A.No.1041 of 2003. The Tribunal also dismissed his application confirming the order of the 2nd respondent. The same is under challenge in this Writ Petition.
3. The facts in brief are that, the 2nd respondent namely, Indian Council of Medical Research [herein after referred to as ICMR] was constituted under the aegis of the Ministry of Health and Family Welfare, which controls the entire institution with regard to the service conditions and administrative matters of the employees. Though it is an autonomous body, it is under control of the 1st respondent. ICMR has two major categories of staff, namely, [a] Scientific Staff and [b] Technical Staff. The petitioner was promoted as Senior Technical Officer on 30.01.1985 and have been serving in that post for about 20 years till his retirement. The governing body of the 2nd respondent made a reference to the Dr.Ramamurty Committee to review the organisational set up, personnel policies and service conditions of ICMR staff, in the light of policies and practices prevailing in other agencies such as CSIR, ICAR, etc. The said Committee recommended in 1985 that the ICMR must speedily implement the five yearly assessment scheme for both Scientific and Technical staff. On approval of the governing body of the 2nd respondent, Integrated Recruitment and Assessment Scheme [herein after referred to as IRAS] was implemented for the Scientific Staff with retrospective effect from 01.07.1984. As far as Technical staff are concerned, the 2nd respondent did not implement the said scheme. Thus, the respondents were discriminating the Technical staff in implementing IRAS. Pursuant to the direction of the Hon'ble Supreme Court in a Writ Petition moved by non-medical wing in the Ministry of Health, Insitu Promotion Rules, 1990, was brought into force from 15.11.1989. The said rule is applicable to organisations attached or subordinate to the Health Department and therefore, ICMR will also be covered by the said rule. The difference between the scope of Dr.Ramamurty Committee recommendation and Insitu Rules is that, in the former, there is scope for promotion and latter, there is scope for up gradation of pay scales. As per the direction of this Court in W.P.No.12800 of 1997 moved by the petitioner, the 2nd respondent informed by its order dated 05.10.1999 that the petitioner is not entitled for consideration under the five yearly assessment scheme and he is being considered under Assured Career Progression [herein after referred to as ACP] scheme. Being aggrieved by the order, the petitioner approached the CAT in O.A.No.543 of 2001. The Tribunal following the Principal Bench CAT, New Delhi, directed the 2nd respondent to consider the application of Dr.Ramamurty's Committee recommendation of assessment scheme from the date, when the same was made applicable to the Scientific staff and also to consider the application of Insitu Promotion Rules, 1990. The respondents without any application of mind, summarily rejected the claim of the petitioner by order dated 31.05.2002. Against that order, the petitioner moved the Tribunal in O.A.No.1041 of 2003 and the Tribunal also dismissed the application by confirming the order of the 2nd respondent. Therefore, the petitioner has come forward with the present Writ Petition.
4. The respondents in the reply before the Tribunal contend that Dr.Ramamurty's Committee recommendation could not be made applicable to Technical staff of ICMR as in the recommendation itself, it has been emphasised that the scales of pay being provided by CSIR to comparable post with comparable qualifications will be made applicable to ICMR staff in Technical cadres. The claim of the petitioner on the mere ground of recommendation of Committee is unsubstantial. Since ICMR is not a subordinate office within the purview of Insitu Promotion Rules of Department of Health, the same could not be applied to the Technical staff of ICMR. The petitioner was granted financial up gradation under ACP during the pendency of O.A.No.543 of 2007. The 3rd respondent though filed a separate reply before the Tribunal, the same contentions as raised by the 2nd respondent were reiterated.
5. The 1st respondent filed an affidavit of the Director General of ICMR and Secretary, Department of Health Research, Ministry of Health and Family Welfare before this Court saying that the 2nd respondent, without approval of the Government, issued a letter dated 29.09.2015 resulting to various orders by this Court. It is further averred that submissions of 2nd respondent before this Court are factually not correct and the case before the High Court of Delhi is altogether a different case.
6. The learned counsel for the petitioner repletedly contends that the identical relief sought for before the Principal Bench, CAT, New Delhi by one R.C.Verma and Others was granted and the same has been upheld by the High Court of Delhi in W.P.[C].No.5710 of 2001 and by the Hon'ble Supreme Court in S.L.P.[C] No.1816 of 2016 and Review Petition [C] No.2178 of 2016 in S.L.P.[C] No.1816 of 2016. As far as the merits of this case is concerned, the learned counsel for the petitioner argued that the impugned Official Memorandum dated 31.05.2002 discriminating the Technical staff of ICMR saying that there is no IRAS in existence in ICMR, after having implemented the same scheme to the Scientific staff is totally illegal. He further contends that Insitu Rules is also applicable to ICMR staff members, as ICMR also comes under the Department of Health and Family Welfare, though an autonomous body.
7. The learned Additional Solicitor General contends that the order of the High Court of Delhi in W.P.[C] No.5710 of 2001 culminated in S.L.P.[C] No.1816 of 2016 is altogether a different case and therefore, this case is to be decided on its own merits. He contends that ICMR being an autonomous body, is not governed under the Insitu Rules. Considering the difference in educational qualification between the Scientific and Technical cadre and the post they held, Government have not accepted the recommendation to implement the five yearly IRAS to the Technical staff, after visualising the repercussions of such implementation. Further, fixation of pay and framing of rules and scheme with respect to a promotion, all rest with the appointing authority. Therefore, the Writ Petition is liable to be dismissed.
8. The admitted facts are that ICMR has two major cadres of staff, namely, [a] Scientific Staff and [b] Technical Staff. The 2nd respondent made a reference to the Dr.Ramamurty Committee to review the organisational set up, personnel policies and service conditions of ICMR staff, in the light of policies and practices prevailing in other agencies such as CSIR, ICAR, etc. The said Committee recommended to implement the five yearly assessment scheme for both Scientific and Technical staff of ICMR. As per the approval of the governing body of the ICMR, five yearly IRAS was implemented for the Scientific Staff of the ICMR with retrospective effect from 01.07.1984. The said scheme has not been implemented to the Technical staff of ICMR. On representation of the petitioner, the petitioner was awarded with ACP with an order that he is not entitled under five yearly assessment scheme. It is needless to say that ACP is not a substitute for promotion. This scheme is only to help those whose promotion is delayed. The impugned Official Memorandum dated 31.05.2002 of ICMR reads thus,
"1. Dr.B.Ramamurthy Committee recommended the grant of pay scales as prevalent in CSIR, to Technical staff working in ICMR. The said recommendations cannot be made applicable to Technical staff working in ICMr as there is no IRAS in existence in ICMR, which was existing in CSIR.
Further, the assessment scheme, which is in operation and made applicable to scientific staff of ICMR cannot be applied to Shri.T.R.Mani, who is a Technical staff and not a Scientific staff.
2. The Insitu Promotion Rules 1990 is applicable to staff of Department of Health of Ministry of Health and Family Welfare and its subordinate offices. Since, ICMR is not a subordinate office within the ambit of Insitu Promotion Rules 1990, the same cannot be applied to the Technical staff of ICMR. Shir.T.R.Mani, STO can not be therefore considered for application of Insitu Promotion Rules 1990 of Department of Health."
9. A cursory perusal of the above said paragraph No.1, discloses the contradictory version. In the first part, it is stated that the recommendation cannot be made applicable to Technical staff as there is no IRAS in existence in ICMR which was existing in CSIR. Whereas, in the second part, it is said that the assessment scheme which is in operation and made applicable to Scientific staff of ICMR cannot be applied to the petitioner, who is a Technical staff and not a Scientific staff. Though IRAS is not in existence in ICMR, the scheme was made applicable to Scientific staff; but the petitioner is not entitled as he is a Technical staff. It is not the case of the respondent that scheme was not recommended to both Scientific and Technical staff. It is the specific case that though ICMR recommended to implement the scheme, it could not implement for want of approval by the Government. When the same petitioner challenged the earlier order dated 26.11.1999 conferring ACP, the Madras Bench CAT in O.A.No.543 of 2001 passed a detailed order directing to consider implementation of IRAS scheme for technical staff on ICMR as done to the Scientific staff. The Tribunal in the present impugned order ignoring the discussions and finding of the Tribunal in the earlier order has erroneously confirmed the order of the 2nd respondent. The order of the 2nd respondent is nothing but discriminatory. Though the respondents contend that IRAS cannot be implemented to the Technical staff, no proper justification has been offered either before the Tribunal or before this Court. The only answer is that different posts have different qualification and scale of pay. This cannot be a reason for non-implementation of the scheme. It is pertinent to note that even in the Judgment of High Court of Delhi in W.P.[C] No.5710 of 2001, it has been held that IRAS has been implemented to some of the Technical staff of ICMR also apart from Scientific staff. Therefore, there is absolutely no justification for non-implementation of the said scheme to all the Technical staff of ICMR. Denial of the said scheme to the petitioner, stagnated in the post of Senior Technical Officer for about 20 years, by the respondent is discriminatory.
10. Since this Court has decided that the petitioner is entitled to IRAS scheme as recommended by Dr.Ramamurty Committee, the applicability of Insitu Rules need not be gone into. Further, nothing has been brought to the notice of this Court to show that the said Rules is applicable to ICMR.
11. The learned counsel for the petitioner also brought to the notice of this Court the order in the Writ Petition in W.P.[C] No.5710 of 2001 and also the order of the Hon'ble Supreme Court in S.L.P.[C] No.1816 of 2016 and Review Petition [C] No.2178 of 2016 in S.L.P. [C] No.1816 of 2016. In the above proceedings, the applicants who are Technical staff of ICMR, have been deprived of IRAS moved the CAT at New Delhi, alleging discrimination. Challenging the said order, The Director General of ICMR and another filed the above Writ Petition before the High Court of Delhi and the High Court of Delhi, up held the order of the Tribunal holding that non-implementation of scheme to the part of the Technical staff of ICMR is discriminatory. The Special Leave Petition and the Review Petition preferred against that order were also dismissed. The petitioner in the instant Writ Petition also stands on the same footing as the applicants before the High Court of Delhi. The petitioner herein as well as the applicant before the High Court of Delhi challenge the non-implementation of IRAS to the part of Technical staff in ICMR alleging discrimination. Therefore, the order passed by the High Court of Delhi in W.P.[C] No.5710 of 2001 culminating in S.L.P.[C] No.1816 of 2016 and Review Petition [C] No.2178 of 2016 in S.L.P. [C] No.1816 of 2016 before the Hon'ble Supreme Court covers this case. The arguments of the learned Additional Solicitor General is not sustainable.
12. For the reasons stated supra, the Writ Petition is allowed and the order of the Tribunal dated 14.10.2004 in O.A.No.1041 of 2003 is set aside. The respondents 1 to 3 are directed to consider the application of the scheme of IRAS to the petitioner, who is a Technical staff of ICMR from 01.01.1996, within eight weeks from today. No cost.