P.G. Kamalakshy Amma v. President, Indian Council of Agricultural Research; Director General, ICAR; Director, Central Plantation Crops Research Institute, Kasaragod

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN** **& THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **TUESDAY, THE 8TH DAY OF APRIL 2014/18TH CHAITHRA, 1936** ## **WP(C).No. 26230 of 2009 (Z)** **---------------------------OA NO.44/2003 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH DATED 17-11-2005** **...** ## **PETITIONER:** **--------------------------** **P.G.KAMALAKSHY AMMA,AGED 65 YEARS, SENIOR SCIENTIST, (RETIRED ON 30.6.2006) W/O.(LATE) SADASIVAN PILLAI, CENTRAL PLANTATION CROPS RESEARCH INSTITUTE, REGIONAL STATION, KAYAMKULAM, RESIDING AT 'JYOTHIS' KRISHNAPURAM PO.** ## **BY ADV. SRI.P.V.MOHANAN** ## **RESPONDENTS:** **----------------------------** ## **1. THE PRESIDENT,** **INDIAN COUNCIL OF AGRICULTURAL RESEARCH, KRISHI BHAVAN, NEW DELHI.** **2. THE DIRECTOR GENERAL, INDIAN COUNCIL OF AGRICULTURAL RESEARCH, KRISHI BHAVAN, NEW DELHI.** ## **3. THE DIRECTOR,** **CENTRAL PLANTATION CROPS RESEARCH INSTITUTE, KASARAGOD, POST KUDLU.** **R1 TO R3 BY ADV. SRI.P.SANTHOSH KUMAR (PANAMPALLI NAGAR)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-04-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.26230/2009 (Z)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1: COPY OF THE ORDER IN O.A.NO.44/2003 DATED 17/11/2005.** **EXHIBIT P2: COPY OF THE O.A.NO.44/2003.** - **EXHIBIT P3: COPY OF THE REPLY STATEMENT IN O.A.NO.44/2003.** - **EXHIBIT P4: COPY OF THE MISCELLANEOUS APPLICATION TO ACCEPT ADDITIONAL DOCUMENTS DATED 7/08/2005.** - **EXHIBIT P5: COPY OF THE REPLY STATEMENT DATED 2/11/2005.** - **EXHIBIT P6: COPY OF THE MISCELLANEOUS APPLICATION TO ACCEPT ADDITIONAL DOCUMENTS DATED 18/09/2005.** - **EXHIBIT P7: COPY OF THE JUDGMENT IN WPC.NO.23559/2002 DTD. 29/08/2006.** - **EXHIBIT P8: COPY OF THE REPRESENTATION DATED 25/10/2006.** - **EXHIBIT P9: COPY OF THE PROCEEDINGS F.NO.23559/2003-CONFL.DATED 12/12/2006.** ## **RESPONDENT'S EXHIBITS:** - **EXHIBIT R1: COPY OF THE MEDICAL CERTIFICATE OF THE PETITIONER.** - **EXHIBIT R2: COPY OF THE ABSTRACT OF SERVICE BOOK.** - **EXHIBIT R3: COPY OF THE LETTER NO.F1(14)87 PER/IV DTD. 28/10/1991.** - **EXHIBIT R4: COPY OF THE ICAR LETTER NO.21(10/99PER/IV DTD.10/07/2000.** - **EXHIBIT R5: COPY OF ICAR LETTER NO.21(10)/99 DTD. 19/04/2001.** - **EXHIBIT R6: COPY OF THE JUDGMENT DTD. 7/10/92 IN O.A.NO.1126/91.** - **EXHIBIT R7: COPY OF ICAR LETTER NO.10(1)/92-PER/IV DTD. 14/03/95.** - **EXHIBIT R8: COPY OF JUDGMENT DTD. 9/11/94 IN O.A.NO.1517/94.** - **EXHIBIT R9: COPY OF JUDGMENT DTD. 30/06/97 IN O.A.NO.949/95.** **EXHIBIT R10: COPY OF ACR OF PETITIONER FROM 1/1/70 TO 31/3/06. EXHIBIT R11: COPY OF ADVERSE ENTRIES IN THE CR FOR THE YEAR 1983. EXHIBIT R12: COPY OF ADVERSE ENTRIES IN THE CR FOR THE YEAR 1989.** **..2/-** **Kss** **==> picture [25 x 9] intentionally omitted <==** ## **WPC.NO.26230/2009(Z)** **EXHIBIT R13: COPY OF ADVERSE ENTRIES IN THE CR FOR THE YEAR 1994. EXHIBIT R14: COPY OF ADVERSE ENTRIESIN THE CR FOR THE YEAR 1995. EXHIBIT R15: COPY OF THE LETTER 5/99/86/AU (PT) DATED 16/07/2002 OF THE DG, ICAR.** **EXHIBIT R16: COPY OF THE LETTER NO.6-2001/AU (PT) DATED 16/07/2002 OF DG, ICAR.** **/TRUE COPY/** **P.S.TO JUDGE** **Kss** ## **THOTTATHIL B.RADHAKRISHNAN** ## **&** **==> picture [199 x 11] intentionally omitted <==** ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C).No.26230/2009 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ **Dated this the 8[th] day of April, 2014** **==> picture [278 x 11] intentionally omitted <==** ## **Thottathil B.Radhakrishnan, J.** We have heard the learned counsel for the petitioner and the learned standing counsel for the Indian Council of Agricultural Research (ICAR) quite _in extenso_ . We have also perused the Annual Confidential Reports (ACRs) of the petitioner for the periods from 01/07/1979 to 31/12/1981 and from 01/01/1983 to 31/12/1985 which were made available through the learned standing counsel for the ICAR following the order dated 20/03/2014. 2. The facts, in a nutshell, are that a scheme for career assessment of the Scientists of ICAR was brought in, upon the adoption of UGC Pay Package with effect from 01/01/1986. Petitioner, who was a Scientist in ICAR, could aspire for a placement in Senior Scale of pay of Rs.3000-5000 on satisfaction of the four conditions enumerated in item No.1 of that ``` W.P.(C).No.26230/2009 ``` -:2:- scheme. Petitioner was granted that, following different earlier orders even through the Tribunal. 2. Thereupon came the question as to whether the refusal to promote the petitioner as Scientist (Selection Grade) requires to be interfered with by the Tribunal in exercise of the authority under the Administrative Tribunals Act, 1985. 3. The scheme provides that four conditions have to be satisfied for a Scientist (Senior Scale) to be promoted as Scientist (Selection Grade). 4. Of formidable importance on the facts of this case is the contrast between the quality of performance appraisal reports as are noted, in the case for placement to Senior Scale and for promotion to Selection Grade. Placement in the Senior Scale calls for consistently satisfactory performance appraisal reports, whereas promotion to Selection Grade requires consistently good performance appraisal reports. 5. One plea projected by the learned counsel for the petitioner is that on having found that the petitioner is entitled to be placed as Senior Scale Scientist with effect from 01/01/1986, the establishment could not have turned round to negative her right for promotion as Scientist (Selection Grade) with effect from the very next day, because the ACRs which will have to be considered would be the same. ``` W.P.(C).No.26230/2009 ``` -:3:- 6. We are not impressed by the arguments on behalf of the petitioner. What is required for Selection Grade is good performance appraisal reports and what is required for placement in Senior Scale is satisfactory performance appraisal reports, though there should be consistency in both. More importantly, we are unable to consider, in the domain of scientific research and institutions under ICAR, that the quality of consideration of ACRs for the purpose of promotion to the post of Scientist (Selection Grade) should be the same as the quality of consideration of the ACRs for placement in Scientist (Senior Scale). The constitution of the DPC and the identity of the officers included in the DPC, necessarily indicate that yardsticks at the hands of the DPC would vary when a comprehensive assessment is made to consider whether a particular Senior Scale Scientist is eligible to be promoted as Scientist (Selection Grade). 7. We are unable to accept the submissions made by the learned counsel for the petitioner relying upon the decision of the Apex Court in **Union of India and others vs. Lt.General Rajendra Singh Kadyan and another [AIR 2000 SC 2513]** and **State of Kerala and another vs. N.M.Thomas and others [AIR 1976 SC 490].** The latter among those precedents, related to the constitutional validity of Rule 13AA of the Kerala State and Subordinate Services Rules (KS & SSR) and in the crux of the ``` W.P.(C).No.26230/2009 ``` -:4:- discussions, the majority view also expressed as to what is meant by promotion. Those were cases dealing with the relevance and the applicability of the departmental examinations and other prescriptions in relation to promotions and the eligibility of the challenged sections of the society to support by rules of reservation in their onward march, by way of promotion in the hierarchy of public employment. The earlier one, **Lt.General Rajendra Singh Kadyan’s** case ( _supra_ ), was one where the appointment to the post of Army Commander was considered. That decision essentially points out that the criteria for promotions may fall into different categories and, generally, they fall into three categories. Senioritycum-fitness, Seniority-cum-merit and Merit-cum-suitability with due regard to seniority are the three categories identified. 8. In our considered view, on an onward march in terms of the constitutional goals envisioned in Articles 14 and 16, the principle of seniority-cum-fitness would dwindle, paving way to the operation of the principle of seniority-cum-merit as we go up in hierarchy, in an establishment. Higher up in an establishment, still higher would and should be merit-cum-suitability, with due regard to the suitability, where seniority by itself may have no say as well. 9. Admittedly, here, there is no question of _inter se_ seniority among Scientists. The promotion, therefore, is not a regular stream of ``` W.P.(C).No.26230/2009 ``` -:5:- promotion based on seniority. It is essentially a promotion by picking up those found eligible to be promoted. Even if the question of fitness is taken, ICAR is well within the authority to apply the doctrine of selection rather than the principle of weeding out the ineligible. This is the purposive approach in which principles of service law applicable to such posts will have to be judicially considered and applied. 10. Another aspect of this case is that the Tribunal noted that ICAR did not find the petitioner for promotion to Scientist (Selection Grade), for different reasons. One is, for not having consistently good performance appraisal report, which is a mandatory requirement. Next is that for the years 1983, 1984 and 1985, she got grading only as “below average” with adverse remarks during the period from 01/01/1982 to 31/12/1982. Tribunal found that the ACR entries for the year 1982 were communicated to the petitioner and she had represented against it and such representation was considered by the competent authority, disagreeing to accept her request to modify the ACR. That being so, we do not find our way to hold that non-communication of the other ACRs would by themselves infract the law laid by the Apex Court in **Dev Dutt v. Union of India and others [ (2008) 8 SCC 725]** and **Sukhdev Singh v. Union of India and others [(2013) 9 SCC 566]** . The plea in this regard also fails. ``` W.P.(C).No.26230/2009 ``` -:6:- 11. Having considered the totality of the facts and circumstances, we find no ground to interfere with the impugned order in visitorial jurisdiction under Article 227 of the Constitution of India. This writ petition, therefore, fails. In the result, this writ petition is dismissed. No costs. **Sd/-** ## **THOTTATHIL B.RADHAKRISHNAN, JUDGE** **Sd/-** ## **A.MUHAMED MUSTAQUE, JUDGE** ms