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CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH

Original Application No. 180/00646/2015

Thursday, this the 10th day of January, 2019

CORAM:

Hon'ble Mr. E.K. Bharat Bhushan, Administrative Member Hon'ble Mr. Ashish Kalia, Judicial Member

Selin Joseph, aged 60 years, D/o. P.J. Joseph (Late), Assistant Library & Information Officer, Indian , Naval Academy PO, , District, Pin – 670 310, permanently residing at Pandinjare Purakkal House, Meenmutti (PO), Kodenchery, District...... Applicant

(By Advocate : Mr. Dinesh P.T.)

V e r s u s

1. Union of , represented by Secretary to the , Ministry of Defence, South Block, New Delhi.

2. The Chief of Naval Staff, Integrated Head Quarters, Sena Bhawan, New Delhi, Pin – 110 011.

3. The Director of Civilian Personnel, Integrated Head Quarters, Ministry of Defence (Navy), Directorate of Civilian Personnel, Sena Bhawan, New Delhi – 110 011.

4. The Deputy Director (G), Integrated Head Quarters, Ministry of Defence (Navy), Directorate of Civilian Personnel, Sena Bhawan, New Delhi – 110 011.

5. Flag Officer Commanding-in-Chief, , – 682 004.

6. The Commandant, Indian Naval Academy, Ezhimala, Pin – 670 310...... Respondents

(By Advocate : Mr. N. Anilkumar, SCGSC)

This application having been heard on 04.01.2019 the Tribunal on

10.01.2019 delivered the following: 2

O R D E R

Hon'ble Mr. Ashish Kalia, Judicial Member –

The relief claimed by the applicants are as under:

“i) Declare that non providing of the timely promotion to the applicant as Library & Information Officer at Indian Naval Academy, Ezhimala with effect from 29.12.2004 irrespective of the availability of the vacancy as highly illegal, arbitrary, unjust and against the legitimate expectation of the applicant.

ii) Declare that applicant is eligible to be promoted as Library & Information Officer at Indian Naval Academy, Ezhimala with effect from 29.12.2004.

iii) Declare that applicant is eligible to be promoted notionally as Senior Library & Information Officer in the grade pay of Rs. 7600/- at Indian Naval Academy, Ezhimala with effect from 29.12.2009.

iv) Declare that applicant is eligible to be promoted notionally as Director in the grade pay of Rs. 8700/- at Indian Naval Academy, Ezhimala with effect from 29.12.2014.

v) To direct the respondents to appoint applicant as Library & Information Officer at the Indian Naval Academy, Ezhimala with effect from 29.12.2004 in the available vacancy and to notionally promote her to the post of Senior Library & Information Officer in the grade pay of Rs. 7600 with effect from 29.12.2009 with all consequential benefits and to notionally promote her to the post of Director in the grade pay of Rs. 8700/- with effect from 29.12.2014 with all consequential benefits.

vi) To call for the reasons leading to Annexure A11 and quash the same.

vii) To grant such other reliefs as may be prayed for and as the Tribunal may deem fit to grant, and

viii) Grant the cost of this Original Application.”

2. The brief facts of the case are that the applicant was appointed as

Assistant Librarian on 1.2.1984 and which was re-designated as Library

Information Assistant [(Rs. 1400-2,600/- pre-revised) (Rs. 5,000-8,000/- revised)]. The next post is Sr. Library & Information Assistant. She was promoted to the rank of Assistant Library & Information officer on

25.5.2009. The post of Library & Information Officer was sanctioned in the 3

Indian Naval Academy, Ezhimala on 29.11.204. A person in the grade pay of Rs. 4,200/- with ten years experience is entitled to get Grade Pay of Rs.

6,600/- which is equivalent as Library & Information Officer and as such she is entitled to be promoted as Library & Information Officer as early as in 1994 itself but since the post of Library & Information Officer was sanctioned only on 29.12.2004 she is entitled to be appointed as Library &

Information Officer on 29.12.2004 itself. Further a person in the grade pay of Rs. 6,600/- and five years experience in the grade pay of Library &

Information Officer is entitled to be appointed as Senior Library

Information Officer and Senior Library Information Officer can be appointed in Category III libraries also. Therefore, the applicant is entitled to be appointed notionally as Senior Library & Information Officer with effect from 29.12.2009 and in the same pattern she is entitled to be appointed notionally as Director with effect from 29.12.2014. So far no

Recruitment Rules for library cadre is made for though the same is made for other establishments. The applicant is aggrieved by the non-granting of the timely promotion to her as Library & Information

Officer at Indian Naval Academy, Ezhimala irrespective of the upgradation of the post and availability of vacancy. She is claiming the subsequent promotion to the post of Senior Library and Information Officer notionally in the grade pay of Rs. 7,600/- with effect from 29.12.2009 with all consequential benefits and further promotion as Director w.e.f. 29.12.2014.

As per the memorandum dated 24.7.1990 and 26.10.1990 the Government had decided to introduce pay structure for library staff. Accordingly as per paragraph 2.2 of report of Review Committee on Library staff, all the 4

Ministries and Departments were advised to modify their Recruitment

Rules. The Command Reference Library, Cochin, INS Venduruthy and

Naval Reference Library, INA Ezhimala were categorized as category No.

3. In category No. 3 Library, the post and designation of the Head of the

Library is Library & Information Officer. On 29.12.2004 the post of Library and Information Officer was created in the Indian Naval Academy,

Ezhimala based on the sanction by the president of India. The applicant preferred Annexure A9 representation but the same was rejected vide

Annexure A11. During the pendency of this OA the applicant retired from service on 31.10.2015.

3. Notices were issued to the respondents. They entered appearance through Shri N. Anilkumar, SCGSC. Respondents contended that the applicant was initially appointed as Library and Information Assistant (LIA) with effect from 1.1.1985 in the pay scale of Rs. 5000-8000/-. She was granted financial upgradation under ACP in the scale of pay of Rs. 6,600-

10,500/- which is the pay scale of Assistant Library & Information Officer with effect from 9.8.1999. This pay scale was revised to Rs. 9,300-34,800/- with Grade Pay of Rs. 4,600/- under 6th CPC. Applicant was promoted as

Assistant Library and Information Officer (ALIO) w.e.f. 25.5.2009 in pay band Rs. 9,300-34,800/- with Grade Pay of Rs. 4,600/- under 6th CPC on occurrence of the vacancy against the newly sanctioned post at INA,

Ezhimala. As per Government sanction of INA, Ezhimala, 1 post each of

Library and Information Officer (LIO) and Assistant Library and

Information Officer has been sanctioned and the complements were to be 5 inducted in a phased manner. The applicant was promoted to the grade of

Assistant Library & Information Officer (in short ALIO) against the sanctioned post on 25.5.2009. Though various posts were sanctioned for

Ezhimala in 2004 but the unit was not functional till 2009. The action to fill up the post of LIO in PB-3 of Rs. 15,600-39,100/- with Grade Pay of Rs.

6,600/- was not initiated as no incumbent was eligible for consideration as per requirement of minimum eligibility service in the grade of ALIO for promotion to the post of LIO. The notification of Recruitment Rules for the post of LIO is also under process and is likely to be notified shortly.

4. The formulation of Recruitment Rules for the post of LIO has taken time due to the fact that the letter through which the post of LIO was sanctioned at INA, Ezhimala was not specifying the pay scale/classification and moreover the post indicated as LIO was sanctioned for Naval War

College at wherein the pay scale was indicated as 9,300-34,800/- with

Grade Pay of Rs. 4,800/-. As this pay scale was not available in the cadre structure of the Library Staff, considerable time had elapsed in the process of obtaining clarification.

5. The delay in notification of the Recruitment Rules had not affected any incumbent as non one is eligible for promotion to the grade of LIO till date in accordance with the draft Recruitment Rules. As per the draft

Recruitment Rules the minimum qualifying service for promotion from a post with Grade Pay of Rs. 4,600/- to a post with Grade Pay of Rs. 6,600/- is 7 years. As per who has completed the minimum qualifying service as on 6

1st April of the year is deemed to eligible for consideration for promotion in the DPC year commencing from 1st April. Since the minimum eligibility service for promotion to the Grade Pay of Rs. 6,600/- from the feeder grade of Grade Pay of Rs. 4,600/- is 7 years the applicant could become eligible only on 1st April, 2017 for the DPC year 2017-18. Applicant retired on superannuation on 31st October, 2015 before the date of her eligibility.

6. The pay scale of the applicant was upgraded to Rs. 10,000-15,200/- on

2nd ACP w.e.f. 1st February, 2008 which is the pay scale of LIO. Consequent to the implementation of MACP scheme she was granted the pay scale of

Rs. 15,600-39,100/- with Grade Pay of Rs. 7,600/- w.e.f. 30th April, 2015 on completion of 30 years. She was granted financial upgradation to the pay scale for which the functional post does not exist in Navy. Hence, the applicant has been granted all the legitimate dues for which she was eligible before her retirement.

7. Heard Shri Dinesh P.T., learned counsel appearing for the applicant and learned Senior Central Government Standing Counsel appearing for the respondents. Perused the records.

8. The applicant made Annexure A9 representation to the respondents.

The relevant portion is extracted below:

“My promotion to Library and Information Officer is due since long time. In this regard refer Govt. of India sanction Letter No. CS/4518/NHQ/1722/US/(MP)/D(N-11)GOI (MoD) dated 29 Dec 2004.

I will be retiring from service on 31 Oct 15. It is saddening that the delay for promotion and the related privileges like higher scale accommodation 7

and related facilities are also pending for such a long time.

In view of the above facts, your kind attention is requested towards filling the vacant post of Library and Information Officer that exists in INA Library, Ezhimala, which would certainly open up the promotion prospects and fulfill the long pending dream of Librarians.”

The Department after considering the same rejected the representation on the grounds that; as per the Government sanction to INA, Ezhimala vide letter dated 29th December, 2004, one post each of Library and Information

Officer and and Assistant Library and Information Officer had been sanctioned and the action to fill up the post of Library and Information

Officer in PB-3 of Rs. 15,600-39,100/- with Grade Pay of Rs. 6,600/- was not initiated as no incumbent was eligible for consideration as per requirement of minimum eligibility service in the grade of Assistant Library

& Information Officer; the Recruitment Rules for the post of Library &

Information Officer is also under process and is likely to be notified shortly; though various posts were sanctioned to Ezhimala in 2004, the unit was not functional till 2009 and the vacancies were filled up on need basis after requisition made by the Unit and that the classification of posts and pay scale attached to the post were not mentioned in the sanction letter of the

Government.

9. As per model Recruitment Rules for the post of Library &

Information Officer dated 28th March, 2013 which is a review of DoP&T

OM dated 22nd February, 1993, the classification of Library and Information

Officer is General Central Service Group 'A' Gazetted post with PB-3 Rs.

15,600-39,100/- with Grade Pay of Rs. 6,600/-. The post of Library &

Information Officer sanctioned vide Ministry of Defence letter dated 21st 8

December, 2011 is in PB-2 with Grade Pay of Rs. 4,800/-. As per the

Recruitment Rules the minimum qualifying service for promotion from a post with Grade Pay of Rs. 4,600/- in order to get next post of Library &

Information Officer with Grade Pay of Rs. 6,600/- is seven years.

10. Therefore, a person who has completed the minimum qualifying service as on 1st January of the year is deemed to be eligible for consideration for promotion in the next vacancy year commencing from

April. Further different Ministry/Department may have different grade with similar nomenclature. Thus, the post of Library & Information Officer sanctioned in Navy is specified under PB-2 9,300-34,800/- with Grade Pay of Rs. 4,800/- which is a Group 'B' gazetted post. However, the next post of

Library & Information Officer is carrying Grade Pay of Rs. 6,600/- the minimum eligibility service for promotion from feeder grade of Grade Pay of Rs. 4,600/- is seven years and as such applicant will only complete the eligibility of service on 1st January, 2017 for the DPC year 2017-18.

Therefore, the basic thrust of the Government's stand is that the posts became operational in INA, Ezhimala only in the year 2009 and vacancies are filled up on need basis. Different Departments of Government/Ministry have different pay scales and Naval Department had adopted PB-2 in 9,300-

34,800/- with Grade Pay of Rs. 4,800/- for Library & Information Officer.

The action to fill up the post of Library & Information Officer in PB-3 of

Rs. 15,600-39,100/- with Grade Pay of Rs. 6,600/- was not initiated as no incumbent was eligible for consideration as per the requirement of minimum eligibility service in the grade of Assistant Library & Information 9

Officer.

11. Moreover, the applicant had already been considered for 2nd ACP w.e.f. 1.2.2008 in the pay scale of Rs. 10,000-15,200/- which is the pay scale of Library & Information Officer & 3rd MACP on completion of 30 years of service w.e.f. 30.4.2015 in PB-3 of Rs. 15,600-39,100/- with Grade

Pay of Rs. 7,600/-. The applicant was given her legitimate dues for which she was eligible before her retirement. This Tribunal is of the view that sanctioning and filling up of posts is the domain of the executives. The judiciary has no role to interfere in it. Further the Department had adopted

PB-2 Rs. 9,300-34,800/- with Grade Pay of Rs. 4,800/- as the pay scale to the post of Library and Information Officer and the applicant cannot claim that some of the Departments in Ministry of Defence has the pay scale in

PB-3. The unit was functional w.e.f. 2009 and the posts can be filled on need basis. The applicant was immediately promoted to the post of Assistant

Library & Information Officer on 25.5.2009 itself. The Hon'ble apex court in the case of S.S. Balu v. State of - (2009) 2 SCC 479 held as under:

“The state as an employer has a right to fill up all the posts or not to fill them up. Unless a discrimination is made in regard to the filling up of the vacancies or an arbitrariness is committed, the concerned candidate will have no legal right for obtaining a writ of or in the nature of mandamus.”

12. In view of the above, we do not find any merit in this Original

Application. Accordingly, the OA is dismissed. No order as to costs.

(ASHISH KALIA) (E.K. BHARAT BHUSHAN) JUDICIAL MEMBER ADMINISTRATIVE MEMBER 10

“SA”

Original Application No. 180/00646/2015

APPLICANTS' ANNEXURES

Annexure A1 - True copy of the order No. CP(SC)/1890 dated 4.2.1991 by the Deputy Director of Civilian Personnel for Chief of the Naval Staff.

Annexure A2 - True copy of the relevant part of the report of Review Committee on Library Staff under purview of Central Government.

Annexure A3 - True copy of the order No. CS 2030/43 dated 16.12.1991 issued for the Flag Officer, Commanding-in-Chief.

Annexure A4 - True copy of the letter No. CP(SC)/40042/SJ/CC/193/D (N-III) dated 7.2.1997 by the Director (CS), Ministry of Defence, Government of India.

Annexure A5 - True copy of the order No. ED/1908/1/ (MP)/09/US(MP)/D (N-II)/12 dated 27.1.2012 by the Under Secretary to the Government of India, Ministry of Defence.

Annexure A6 - True copy of the letter NO. ED-1908/1/MP dated 30.1.2012, the Director of Naval Education, Integrated Head Quarters, Ministry of Defence (Naval).

Annexure A7 - True copy of the order No. ED/5120/13 dated 23.2.2012 by the Senior Staff Officer (Education) for Flag Officer, Commanding-in- chief.

Annexure A8 - True copy of the Office Memorandum No. AB- 14017/54/2005-Estt.(RR) dated 28.3.2013 by the Government of India, Ministry of Personnel, PG and Pensions, Department of Personnel & Training along with the Model Recruitment Rules for the various categories of Group A and Group B posts in the Library Discipline.

Annexure A9 - True copy of the representation dated 12.5.202 filed by the applicant. 11

Annexure A10 - True copy of the order dated 11.12.2013 in OA No. 41/2013 by the Hon'ble Central Administrative Tribunal, Ernakulam Bench.

Annexure A11 - True copy of order No. CP(G)/0667/SJ/CC dated 2.8.2013 by the Deputy Director (G), Directorate of Civilian Personnel, Ministry of Defence (Navy).

Annexure A11(a) - True copy of the MOD letter No. CS/4639/IHQ (N)/1335/US(MP)/D(N-II/11) dated 21.12.2011 enclosed along with Annexure A-11.

Annexure A11(b) - True copy of the details of pay scale and qualifying service for promotion as per DOPT OM No. AB 14017/61/2008-Estt.(RR) dated 24.3.2009 and 12.3.2010 enclosed along with Annexure A-11.

Annexure A12 - True copy of the clarification/review submitted by the applicant on 29.1.2014 to the Deputy Director (G), Integrated Head Quarters, Ministry of Defence (Navy).

Annexure A13 - True copy of the order No. CS 2700/11 dated 19.2.2010 by the Staff Officer (Civilian Personnel) for Flag Officer Commanding in- chief.

Annexure A14 - True copy of the order NO. CS 2762/33/Macp dated 21.5.2015 by the Staff Officer (Civilian Personnel) (AOL) for the Flag Officer Commanding-in-Chief.

Annexure A15 - True copy of the relevant part of the Ministry of Defence, Headquarters Integrated Defence Staff, National Defence Academy, Khadakwasla, Library Cadre (Group A and Group B) posts Recruitment Rules, 2011 notified under SRO 73 dated 23.11.2011.

Annexure A16 - True copy of the National Research Laboratory for Conservation of Cultural property (Library & Information Officer) Group A post Recruitment Rules, 2015 issued as per G.S.R. 46(E) dated 19.1.2015 by the Minstry of Culture. 12

Annexure A17 - True copy of the relevant part of the order No. CS/4518/NHQ/1722/US(MP)/D(N[II) dated 29.12.2004 by the Under Secretary to Government of India, Ministry of Defence.

RESPONDENTS' ANNEXURES

Annexure R1 - True copy of the letter dated 29.12.2004.

Annexure R2 - True copy of the Draft RR for Library Staff in Navy.

Annexure R3 - True Copy of the relevant page of OM dated 24.3.2009 & 12.3.2010.

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