HON'BLE Mr. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER
1. These two O.As were heard together being identical and are disposed of by this common order.
2. Facts in brief are as under. The post of Coconut Development Officer (CDO, for short) in the Administration of Union Territory of Lakshadweep fell vacant on 08.01.1999. This post remained vacant till Dr. C.P. Hamzakoya was appointed vide order dated 07.02.2006. However, he was held ineligible for the post of CDO by this Tribunal vide order dated 20.03.2007 in O.A. No. 79/2006. Hon'ble High Court of Kerala in Writ Petition No.12983/2007 passed an interim order dated 13.04.2007 allowing him to continue in the post of CDO till fresh selection is over. Consequent on the death of Dr. C.P. Hamzakoya on 29.05.2008, fresh notification was issued on 22.09.2008 for filling up the said post to which the applicant n O.A. No. 777/09 responded with his application dated 22.10.2008. The application was not forwarded to the Union Public Service Commission (UPSC). Later, vide Employment Notice dated 07.09.2009, applications were invited to fill up the post by direct recruitment. The O.A No. 777/09 is filed, inter alia, to get the impugned Annexure A-8 Employment Notice quashed and to appoint the applicant therein as CDO in the existing vacancy. The applicants in O.A. No. 731/2009 also seek similar relief along with the following additional reliefs:
(i) To declare that first applicant is deemed to have been promoted to the category of Coconut Development Officer w.e.f. February, 2006 with all consequential benefits;
(ii)To declare that second applicant is deemed to have been promoted to the category of Plant Protection Officer w.e.f. February, 2006 with all consequential benefits.
2. At present, the post of CDO carries a pay scale of Rs. 15600-39100 + G.P. of Rs. 5400/-. It is to be filled up in consultation with UPSC. As per the Recruitment Rules, 1991, the post of CDO is to be filled up by promotion/ transfer on deputation (including short term contract) failing which by direct recruitment. The grades from which recruitment by promotion/ transfer on deputation is to be made are as under:
"Promotion/transfer on deputation(including short-term contract)-
1. Officers from the Central/State Governments/Union Territories/Agricultural Universities or Research Institutions/ Councils:-
(a) (i) Holding analogous post or
(ii) three years' regular service in posts in the scale of Rs. 2000-3500.
OR
(iii) with 5 years regular service in posts in the scale of pay of Rs. 1640-2900 or equivalent, and
(b) possessing the educational qualifications and experience laid down for direct recruits in Col. 8.
2. The Departmental Plant Protection Officer with 3 years' regular service in the grade in the grade will also be considered and in case he is selected for appointment to the post, the same shall be deemed to have been filled by promotion.
(The departmental officers in the feeder category who are in the direct line of promotion will not be eligible for consideration for appointment on deputation. Similarly, deputationists shall not be eligible for consideration for appointment by promotion. Period of deputation including period of deputation in another ex-cadre post held immediately preceding this appointment in the same or some other organisation / department of the Central Government shall ordinarily not exceed 3 years)."
A Plant Protection Officer with 3 years' regular service and an Agricultural Officer with 5 years experience in the next below cadre are in the feeder category for promotion to the post of the CDO. The post of Agriculture Demonstrator is next below the post of Agricultural Officer. The hierarchical promotional channel for various posts in the Agricultural Department of Union Territory of Lakshadweep is as follows:
Agriculture Demonstrator/Fertilizer Demonstrator/ Soil Conservation Assistant/Plant Protection Assistant/ Technical Assistant/Soil Analysist (Rs. 4500-7000)
5 years service for promotion
8 years service for transfer on deputation
Agricultural Officer
(Rs. 5500-9000)
5 years service for promotion
3 years service for transfer on deputation
Plant Protection Officer
(Rs. 6500-10500)
3 years service for promotion
5 years service for transfer on deputation
Coconut Development Officer
(Rs. 8000-13500)
3. The Krishi Vigyan Kendra (KVK) is a project of ICAR, New Delhi, which is registered under the Societies Registration Act, 1880. To the maximum extent, the officers of the Department of Agriculture, Fisheries and PWD having required qualifications and experience are spared to the KVK for appointment in the pay scales of the KVK which are higher than their pay scales in the parent departments. Such staff will continue to be on the strength of the Administration of Lakshadweep and they will be entitled for all privileges and facilities prevalent in the Administration structure. The administrative control of such staff vests in the Administration. Since no provision for incurring expenditure on pension contribution or leave salary contribution from ICAR, no appointment is made on deputation basis. Any appointment given under KVK will not be counted for any kind of weightage or merit or seniority on and above the seniority list maintained by the Department for promotion in the departmental posts. Such staff will continue to have lien over their substantive posts in the Lakshadweep Administration. In O.A. No. 79/2006, this Tribunal considered whether such staff in the KVK is eligible as per Recruitment Rules for consideration for appointment to the post CDO. The relevant part is extracted as under:
"19. In our considered opinion, there is considerable merit in the above argument of Shri Mohanan. According to the Recruitment Rules for the post of Coconut Development Officer, the method of recruitment is by promotion/transfer on deputation (including short term contract) failing which by direct recruitment. For promotion/transfer on deputation the first preference is given to the officers from the Central/State Governments/Union Territories/Agricultural Universities/ Research Institutions/Councils holding analogous post. The post of Coconut Development Officer carries the pay scale of Rs. 8000-13500. The 5th respondent was of course, holding the post of Training Associate (Plan Protection) in KVK in the scale of Rs. 8000-13500.However, the question is, just because the 5th respondent was having the same pay scale, whether it could be said that he was holding an "analogous post" . Analogous post has not been defined in any Service Rules. The word "analogous" according to Black's Law Dictionary has been derived from the Greek Word "ana" (up) and "logos" (ratio) and it means bearing some resemblance or likeness that permits one to draw an analogy. This meaning is of no help in the present case. However, we came across the Government of India, DOPand T O.M. No.AB 14017/71/89-Estt dated 3.10.89 which prescribed certain procedure to be followed in cases where the appointment is to be made by "transfer" or "transfer on deputation" basis. It read as under:
"Whenever the recruitment rules for a post prescribe 'transfer on deputation/transfer' as a method of filling up the post, they generally contain an entry in column 12 of the standard form of schedule stating inter-a!ia that the 'transfer on deputation/transfer' shall be made from amongst the officers hold!ng analogous posts on regular basis under the Central/State Governments. This Department has been receiving references from various Ministries/Departments asking for the definition of "analogous posts". It has, therefore, been considered appropriate to lay down the following criteria for determining whether a post could be treated as analogous to a post under the Central Government.
(i) Though the scale of pay of the two posts which are being compared may not be identical, they should be such as to be an extension or a segment of each other, eg., for a post carrying the pay scale of Rs. 3000-5000, persons holding posts in the pay scale of Rs. 3000-5000 will be eligible.
(ii)Both the posts should be falling in the same group of posts as defined in the Department of Personnel and Administrative Reforms Notification No. 13012/2/87-Estt(D) dated the 30'''' June. 1987 viz., Group 'A', Group 'B' etc.
(iii)The levels of responsibility and the duties of the two posts should also be comparable.
(iv)Where specific qualifications for transfer on deputation/transfer have not been prescribed, the qualifications and experience of the officers to be selected should be comparable to those prescribed for direct recruits to the 'post where direct recruitment has also been prescribed as one of the methods of appointment in the recruitment rules".
Where promotion is the method of filling up such posts; only those persons from other departments may be brought on transfer on deputation whose qualifications and experience are comparable to those prescribed for Direct Recruitment for the feeder grade/post from which the promotion has been made".
(emphasis added)
20. The Respondent No.5 in his parent department was only a Soil Conservation Assistant in the scale of pay of Rs. 4500- 7000. Above the post of Soil Conservation Assistant, there are two posts (i) Agriculture Officer in the scale of Rs. 5500- 9000 and (ii) Plant Protection Officer in the scale of Rs 6500-10500 which are eligible to be considered for promotion to the post of Coconut Development Officer in the scale of Rs. 8000-13500. In fact the post of Soil Conservation Assistant is not even an eligible category for consideration for appointment as Coconut Development Officer. The post of Coconut Development Officer is admittedly a departmental post. The Recruitment Rule is very clear. When the post of Coconut Development Officer is filled up on promotion/transfer on deputation basis, the officers from Central/State Governments/Union Territories/lAgricultural Universities or Research Institutions/Councils holding analogous post should be considered as first preference. The KVK admittedly being a Scheme/Project of the ICAR controlled by the Lakshadweep Administration, the post of Training Associate (Plant Protection) held by the 5th respondent in KVK cannot be equated with the post of Coconut Development Officer and consider it as an analogous post in the Central/State Govt. etc. In any case, it is not the case of the respondents that the levels of responsibility and duties of both posts were comparable.
21. Further, it is an admitted position that KVK is a Scheme/Project of the ICAR, New Delhi which is a Society registered under the Societies Registration Act, 1880. The ICAR meets the entire expenditure for running the KVKs. The KVK set up at Kiltan Island is one such project. it is very much on record that the 5th respondent was working in KVK, Kiltan as Training Associate (Plant Protection) in the scale of Rs. 8000- 13500 on deputation basis. Vide Annexure A-19 letter dated 23.3.2005, the second respondent has clarified that his appointment was on deputation basis. Further, it was made clear, as observed in Annexure A-13 minutes of the meeting held on 24.6.05 to review the appointment of staff of KVK that at any cost the appointment given under KVK will not be counted for any kind for merit or seniority on and above the seniority list maintained by the department for the promotions in the departmental post. Similar clarifications have also been made by the 2nd respondent vide the Annexure R2(1) order dated 17.7.98. The employees spared to the KVK are appointed from different departments of the Lakshadweep Administration and initially they are appointed for a period of one year and their services are extended further subject to their suitability. They are also considered when the concerned departments make the promotions based on the merit/selection. In the Annexure A-3 appointment letter of the 5th respondent as Training Associate (Plant Protection) in KVK, Kiltan, admittedly the Respondent No.2 has purposely avoided in stating that his appointment was on deputation. This is evident from their own submissions that it was because the ICAR have not made any provision for incurring expenditure on pension contribution or leave salary contribution, the appointment was not described as "appointment on deputation".
The administration have, therefore, treated those who have been spared to work in KVK on transfer basis. Generally, transfer is made between two comparable posts. It is quite obvious that a person holding the post of Soil Conservation Assistant in the scale of pay of Rs. 4500-7000 cannot be transferred and posted as Training Associate (Plant Protection) in the scale of Rs. 8000-13500. The staff pattern of the KVK including the Training Organizer in the scale of pay of Rs. 12000-16500, 5 Training Associates in the scale of Rs. 8000- 13500 etc. is such that the appointments to the aforesaid posts are made initially for a period of one year and they are continued subject to satisfactory performance of the incumbents. The Government employees can work in autonomous body either on transfer or on deputation for a specific period normally for three years, which, in any case does not exceed 5 years. According to the instructions issued by the Department of Personnel and Training, Government of India, tenure of deputation/foreign service is as under:
"8.1 The period of deputation/foreign service shall be subject to a maximum of three years in all cases except for those posts where a longer period of tenure is prescribed in the Recruitment Rules.
8.2 The Administrative Ministry/borrowing organisation may grant extension beyond this limit up to one year, after obtaining orders of their Secretary in the Central Government and Chief Secretary (in the State Government) equivalent level officer in other cases where such extension is considered necessary in public interest.
xx xx xx xx xx xx
8.6 For computing the total period of deputation/foreign service, the period of deputation/foreign service in another ex-cadre post(s) held preceding the current appointment without break in the same or some other organisation shall also be taken into account."
The Apex Court in State of Punjab and others Vs. lnder Singh and others (1997)8 sec 372 has clearly held that after the expiry period of deputation, the employee has to come back to his parent department to occupy the same position. The relevant part of the said judgment is extracted below:
"The concept of "deputation" is well understood in service law and has a recognized meaning. "Deputation" has a different connotation in service law and the dictionary meaning of the word "deputation" is no help. In simple words "deputation" means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent Department as per the Recruitment Rules. Whether the transfer is outside the normal field of deployment or not is decided by the authority who controls the Service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post. The law on deputation and repatriation is quite settled as we have also seen in various judgments which we have referred to above. There is no escape for the respondents now to go back to their parent departments and working there as Constables or Head Constables as the case may be. "
22. In view of the aforesaid settled position regarding deputation, we hereby hold that the appointment of the 5th respondent Dr. C.P. Hamzakoya as Coconut Development Officer, Department of Agriculture, Kavaratti in the Union Territory of Lakshadweep is contrary to rules, invalid and void ab initio. Accordingly, we quash and set aside the Annexure A-23 Office Order dated 7.2.2006.
The respondents 2 and 3 are directed to issue necessary orders cancelling the appointment of the 5th respondent immediately. They are further directed to fill up the vacancy of Coconut Development Officer strictly in accordance with the provisions of the Recruitment Rules. There shall be no order as to costs. "
The finding of this Tribunal was that even if the officer is Training Associate (later designated as Subject Matter Specialist) in the KVK in the scale of pay of Rs. 8000-13500, equivalent to the pay scale of the CDO, it cannot be said that he is holding an analogous post as the levels of responsibilities and duties of both the posts are not comparable. The applicant in O.A. No. 777/09 is a Subject Matter Specialist in the KVK, Kiltan Island, in the pay scale of Rs. 8000-13500, the same pay scale as that of the CDO. But his substantive post is as Agriculture Demonstrator in the Department of Agriculture, Lakshadweep Administration.
4. The aforesaid order of this Tribunal was challenged before Hon'ble High Court of Kerala in Writ Petition No. 12983/2007, which was dismissed as abated on 04.11.09, consequent to the death of the petitioner. The applicant in O.A. No. 777/2009 was not a party in O.A. No. 79/2006. The Hon'ble High Court vide its order dated 20.07.2010, gave an option to the applicant to raise all his contentions which are legally available to him in the instant O.A. Accordingly, the applicant submitted an order No. F.No.58/1/2001-Agri. dated 03.02.2001, which reads as under:
"....... In terms and conditions, it has been specifically indicated that the staff to be recruited under the Krishi Vigyan Kendra will be on the strength of the Administration of Lakshadweep and they will be entitled for all privileges and facilities prevalent in the administration structure. The administrative control over the staff shall vest in the Administration. Since no provision for incurring expenditure on pension contribution or leave salary contribution from ICAR, no appointment will be made on deputation basis. To the maximum extent, officers/officials of the Department of Agriculture, Fisheries, PWD having required qualifications and experience will be spared to KVK and appointment to the extent of the scale of the KVK structure will be issued. Further, the KVK Lakshadweep will be part and parcel of the Department of Agriculture of Lakshadweep Administration. Therefore, the Administrator, U.T. Of Lakshadweep is pleased to order that as in the case of the staff of Department of Agriculture, the pensionary claims of the KVK staff irrespective of technical or ministerial, will be processed and sanctioned from the Department of Agriculture, Lakshadweep Administration. The Director of Agriculture is also authorized to sanction all the retirement benefits of the staff of the Krishi Vigyan Kendra."
The applicant in O.A. No. 777/09 contends that the terms and conditions of appointment of staff in the KVK were not considered in O.A. No. 79/2006. The applicant further submits that this Tribunal in O.A. No. 362/2009 had directed the respondents to consider the representation of the applicant dated 16.03.2009 for forwarding his application for consideration of appointment to the post of the CDO to the UPSC on the basis of the notification dated 22.09.2008.
5. The applicant in O.A. No. 777/09 further submitted that he was interviewed by the UPSC along with Dr. C.P. Hamzakoya and Shri Kunhikoya for the post of CDO. Dr. C.P. Hamzakoya was selected and he died in 2007. The other candidate, Kunhikoya retired in 2006. Therefore, the applicant is only the remaining candidate from the Lakshadweep, who is eligible to get the post of CDO. Therefore, there is no justification for publishing the Employment Notice to fill up the vacancy of CDO by direct recruitment.
6. The arguments of the applicant in O.A. No. 731/09 run as under. The then Plant Protection Officer was eligible for promotion as Coconut Development Officer in the vacancy that arose on 8.1.1999. If that was done, the first applicant herein could have been promoted as Plant Protection Officer with effect from 8.1.1999 and thereafter as CDO from February, 2006, and the 2nd applicant would have been promoted as Plant Protection Officer with effect from February, 2006.
7. The respondents countered the arguments of the applicants as under. The applicant in O.A. No. 777/09 is still in the regular post of Agriculture Demonstrator / Soil Analyst. He is not even promoted to the post of Agricultural Officer or Plant Protection Officer which are in the feeder category for promotion to the post of the CDO. His application was not forwarded to the UPSC as his service in KVK cannot be taken as service in analogous post of the CDO as held by this Tribunal in O.A. No. 79/2006. Since there are no eligible officers in the feeder category of the CDO, the second method of transfer on deputation was resorted to by the respondents. But none of the candidates fulfilled the eligibility criteria prescribed in the Recruitment Rules under the method of transfer on deputation also. Therefore, the issuance of Annexure A-8 Employment Notice inviting applications for the post of the CDO by direct recruitment is legally and procedurally correct.
8. The additional respondent in MA. Nos. 699/10 and 700/10 in O.A. No. 731/09 submitted that none of the applicants for direct recruitment including him is not impleaded in the O.A. None of the applicants in O.A. No. 731/09 is qualified at all to be appointed by promotion to the post of the CDO. The applicant No.1, who though is a Plant Protection Officer, is not having three years regular service as Plant Protection Officer. The applicants 2 to 4 are only Agriculture Officers not falling within the feeder category for promotion.
9. In the rejoinder, the 1st applicant submitted that the 1st applicant in O.A. No. 79/2006 who was promoted as Plant Protection Officer in 1986 was eligible to be promoted as the CDO on 8.1.99 for which he had represented on 1.6.2002. The applicants No. 1 and 2 in O.A. No. 731/09 had also submitted representations seeking promotion to the category of Plant Protection Officer and Agriculture Officer respectively.
10. The 6th respondent in O.A. No. 731/09 who is the applicant in O.A. No. 777/09 filed a reply statement reiterating the points in O.A. No.777/09.
11. We have heard Mr. M.P. Krishnan Nair and Mr. P.V. Mohanan, learned counsel for the applicants and Mr. Sunil Jacob Jose, SCGSC, Mr. S. Radhakrishnan, Mr. Thomas Mathew Nellimootil and M/s. Ramakumar and Associates appearing for the respective respondents and perused the records.
12. The short issue to be decided in these O.As is whether the official respondents are legally right in proceeding to fill up the post of the CDO by direct recruitment or not.
13. The contention of the applicants in O.A. No. 731/09 is that had the then eligible Plant Protection Officer been promoted as CDO on 8.1.99, the post of Plant Protection Officer would have fallen vacant to which the 1st applicant in O.A. No. 731/09 could have been promoted. If that had happened, he could have been promoted as CDO in February, 2006, in which eventuality the 2nd applicant could have been promoted as Plant Protection Officer in February, 2006. This line of argument is to hypothetical and far fetched and unreasonable. Those who did not get promotion in time, should have sought remedy at the appropriate time in the appropriate forum. Not having done so, they have forfeited their right for promotion at the right time. As a result, at present none of the applicants are eligible to be promoted as CDO as per Recruitment Rules for want of not having the requisite number of years of service in the feeder cadre or for not being in the feeder cadre at all, as the case may be.
14. As regards the second method of appointment by transfer on deputation, the applicant in O.A. No. 777/09 is working in the KVK. The officers from the Research Institutions/Councils should be holding analogous post or should be having 3/5 years regular service in posts in the stipulated scales of pay. The officers from the Agriculture Department of Lakshadweep Administration working in the KVK under the ICAR are not holing analogous post nor are having regular service in the stipulated scales of pay. The service in the KVK does not count for promotion in the Departmental posts. The posts they hold in the KVK are not regular permanent posts over which they have lien. The post of Subject Matter Specialist carries a pay scale of Rs. 8000-13500, the same as the pay scale of the CDO. But it is not an analogous post as the duties and responsibilities of the post the Subject Matter Specialist and the CDO are not comparable, as held by this Tribunal in O.A. No. 79/2006. The learned counsel for the applicant in O.A. No. 777/09 emphatically argued that the officers in KVK are not on deputation. The applicant has been transferred to a post in the KVK, an ex-cadre post with higher salary. But any appointment given under the KVK counts for nothing as far as promotion in the departmental posts is concerned. The staff transferred to the KVK will continue to have lien over their substantive posts in the Lakshadweep Administration. Therefore, in the case of the applicant in O.A. No. 777/09 for the purpose of promotion to the post of CDO, his substantive post is that of the Agriculture Demonstrator, which is not a feeder cadre to the post of CDO. The service of the applicant in the KVK cannot be counted as regular service for the purpose of promotion in the departmental post in the Lakshadweep Administration. Therefore, the respondents are right in holding the view that there are no eligible candidate for promotion to the post of the CDO by the method of transfer on deputation also. Therefore, they are left with no choice but to resort to direct recruitment.
15. The applicant in O.A. No. 777/09 was one of the officers interviewed by the UPSC for appointment to the post of CDO. He was in the same boat as Shri C.P. Hamzakoya. If Shri C.P. Hamzakoya was not eligible for consideration for promotion as CDO then he also is not eligible. Therefore, the respondents were justified in not forwarding his application pursuant to a later notification to the UPSC, he being ineligible for consideration as per the decision of this Tribunal in O.A. No. 79/06. It is not the contention of the applicant in O.A. No. 777/09 that the duties and responsibilities of the post of Subject Matter Specialist is comparable to those of the post of the CDO. Following the decision of this Tribunal in O.A. No. 79/06, we hold that service of the applicant in O.A. No. 777/09 in the KVK as Subject Matter Specialist cannot be taken as service in analogous post of CDO and as such ineligible for consideration for promotion to the post of CDO.
16. In the light of the discussion above, it is clear that the respondents are justified in proceeding to fill up the post of the CDO by direct recruitment in the absence of eligible candidates for appointment by promotion or by transfer on deputation as per the Recruitment Rules. However, we would observe that whether the terms and conditions of appointment in the KVK should be such as to render the service in the KVK as of no value in the consideration for promotion to departmental posts, should be considered by the respondents in the interest of fairness and justice to the staff appointed in the KVK.
17. The O.As are dismissed with no order as to costs.