Mr. T. Jacob, Member (A)
1. This OA has been filed by the applicant under Sec.19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-
In view of the facts and grounds mentioned in paras-4 & 5 above the applicant pray that this Hon'ble Tribunal may be pleased to
(i) | Set aside the order No Admn-I/Pro/II (16)/2015 dated 01.09.2021 passed by 3” respondent and set aside the notification calling for application for the post of Senior Stores Officer in No.JIP/Admn-I/Dep/ 1(3 1 PDY/ 2021 dated 19.12.2021 and consequently to direct the 274 respondent to appoint the applicant as Senior Stores Officer by granting one time relaxation and
(ii) Pass such further orders of as are necessary to meet the ends of justice.
(iii) Award exemplary cost and thus render justice.
2. The brief facts of the case as submitted by the applicant are as follows:-
The applicant is now working as Chief Pharmacist. Earlier he worked as Pharmacist / Senior Pharmacist / Stores Officer. The post of Senior Stores Officer was created in JIPMER on 12.07.2013 and since no suitable candidates are available in the feeder cadre at JIPMER, the administration decided to fill the post on a deputation basis. In such factual situation, the application had applied for the post of Senior Stores Officer on a deputation basis on 27.06.2014, 13.11.2015, 17.04.2017 and 14.03.2020. On the representation made by the applicant earlier on 26.06.2015 and on 17.08.2016, the Grievance Committee assured that the plea of the applicant will be considered positively, but no effective action had been taken. Based on the DOPT OM.No AB 1407/61/2008 Estt. (RR) dated 24.03.2009, the applicant had submitted a representation to the 2™ respondent herein on 11.07.2018 praying to amend the Draft Recruitment Rules by including the condition Grade Pay 4200 with 10 years experience for the post of Senior Stores Officer and Grade Pay £200 with 8 years experience for the post of Purchase Officer. When the grievance of the applicant was submitted fourth time before the Grievance Committee on 01.08.2018, wherein it has been directed the 2™ respondent to consider the case of the applicant for promotion after amending the Recruitment Rules by incorporating Grade pay 4200 and revised notification is to be issued. Instead of settling the Grievance, the 2" respondent constituted a sub- committee to examine the feasibility of filling the post of Senior Stores Officer and Purchase Officer on 03.01.2020. The subcommittee overruled the decision of the Grievance committee and noted that the post of Senior Stores Officer is in the promotion of Store Cadre, not in the Pharmacy Cadre, the proposal for restructuring of the pharmacy cadre was sent to Ministry. Hence, it is not desired to amend the RR for the post of Senior Stores Officer at this stage. If the promotion had given in right time with right pay scale, he would have automatically eligible for the post of Senior Stores Officer. The 2"4 respondent failed to rectify the pay scales for the past 30 years, which is discriminatory and unethical which is against the Principles of natural justice. He had submitted a detailed representation on 18.11.2021 to all the respondents, that the decisions of the sub-committee is not valid. Without considering the request of the applicant, the Deputy Director Administration issued an Office Memorandum on 01.09.2021 citing that as per the Recruitment Rules in operation at present, the post of Senior Stores Officer can only be filled up from the cadre of Purchase Officer with 5 years of regular service in the grade. Since Chinnapparaj belongs to the Pharmacy cadre, which is not the feeder cadre for the post of Senior Stores Officer, his promotion to the post of Senior Stores Officer is not feasible and hence his request cannot be acceded to. Hence this Original Application.
3. The applicant has sought the aforesaid relief. Inter alia, on the following grounds:-
a) The applicant is having experience of 38 years in the JIPMER administration with highest qualifications than any other candidature and whenever he voiced his grievances, they had been placed before the Grievance Committee, that though the Grievance Committee headed by eminent persons recommended the case of the applicant to consider favourably, the 2"¢ respondent simply brushed aside such request.
b) The letter sent by the JIPMER administration to the Under Secretary, Ministry of Health, Family Welfare, New Delhi stating that the applicant is not eligible for the post of Senior Stores Officer by letter dated 15.05.2017 would clearly show the discriminatory attitude of the 24 respondent.
c) When such suitable candidate is available and when the applicant is available as an Institute candidate, the act of the 2"4 respondent in not allowing to continue the services of the applicant, an experienced candidate with 38 years of service with background of possession of so many certificates on academic excellence, would clearly show the discriminatory attitude of the 2" respondent towards the applicant.
d) Though Grievance Committees recommended the case of the applicant to be considered favourably, the 24 respondent mechanically rejected the candidature of the applicant on flimsy grounds,
e) The Ministry of Health and F amily Welfare, Government of India instructed to bring uniformity in the Recruitment Rules, Nomenclature, Qualifications, Pay scales of various Non- Faculty posts in AIIMS, new Delhi, PGIMER, Chandigarh and JIPMER, Pondicherry vide. Letter dated.03.08.2016.
f) When the All India Institute of Medical Services, Patna by its advertisement dated 20.11.2021 called for applications for the post of Senior Procurement cum Stores Officer by relaxing service rules, the act of the 2" respondent in not relaxing the Service Rules and to put the applicant in that post is arbitrary, illegal and violative of principles of natural justice.
g) The posts of Senior Stores Officer and Purchase Officer are being looked after by the Faculties/Specialists of JIPMER on part time basis since its creation.
This is affecting the stake holders of the own domain, and they are neglected for promotion in their own area.
4. The respondents have filed detailed reply It is submitted that on 12.07.2013, the post of Senior Stores Officer was created at JIPMER in the Grade pay of PB-3, Grade Pay Rs. 6600/-. As per the Recruitment Rules for the post of Senior Stores Officer, it is to be filled through 100% promotion, failing which deputation. As Since there is no eligible candidate for promotion in the feeder post of Purchase Officer to the post of Senior Store Officer, it was decided to fill up the post of Senior Store Officer on deputation as per Recruitment Rules. Accordingly, advertisement dated 27.06.2014, 13.11.2015, 01.08.2018 and 14.03.2020 was issued to fill the post of Senior Stores Officer on deputation. The applicant also applied for the post of Senior Store Officer to the aforesaid advertisements, stating that he was in the pay scale of Grade pay of Rs. 5400/- In view of repeated representations from the applicant, the issue of eligibility of the applicant to the post of Senior Store Officer on deputation was taken up with the administrative Ministry of the Institute (Ministry of Health and F amily Welfare) for clarification vide letter No. JIP/Admin.I/deputation/1 (18)/2017 dated 15/12/2019 and 28/2/2019. The Ministry finther clarified that vide File no. Z.16013/49/2019.INLI dated 27/06/2019 clarified that “after going through the matter it has been observed that the applicant is getting the G.P. Rs. 5400/-, but under MACP since 24.03.2014. However as per RR of the Senior Store Officer, a person with 5 years of regular service in the post of in the PB3 with G.P. Rs. 5400/- will be eligible. Service in Grade pay Rs. 5400/- by MACP could not be counted as regular service in the post in the PB-3 with G.P Rs.5400/-.
5. It is further submitted that, the DoPT order dated 24/03/2009 is regarding minimum qualifying service of a Govt. Servant for promotion not for recruitment / deputation. Hence, the application of Sh. A. Chinnaparaj is not eligible under this clause. This clarification from. the Ministry was conveyed to the applicant vide O.M. No. JIP/Admin.I/Dep./(18)/2017 dated 10/08/2019.
6. It is submitted that the post of Senior Stores Officer is by promotion from Purchase Officer with 5 years of regular service in the grade. The post of Purchase Officer is by promotion from Stores Officer with 3 years regular service in the grade. Hence, the posts of Senior Stores Officer and Purchase Officer come under the Store Cadre.
7. ‘It is further submitted that the applicant vide letter dated 09.05.2020 requested to consider him for the post of Senior Stores Officer and Purchase Officer by amendment of Recruitment Rules and for cancellation of deputation advertisement for the post of Senior Stores Officer dated 14.03.2020. The said letter of the applicant was considered and the applicant was informed vide Note No. Admin-1/RR/Gen.Corress./205-16(PF) dated 30-6-2020 and 1-7-2020 that "the Advertisement notification for the post of Senior Stores Officer and Purchase officer (Both on deputation basis) published on 14.03.2020 is as per the existing recruitment rules and existing vacancy /incumbent position in the feeder cadre earmarked for promotion basis to the next level in the hierarchy. Thus, your request for cancellation of advertisement for the said post is not being acceded to. It is further submitted that the posts of Purchase Officer and Senior Scores Officer are higher promotional posts in the Stores Cadre in JIPMER. The Pharmacy and Stores cadres have different hierarchies in JIPMER. Hence, the recruitment Rules for the posts of Purchase Officer and Senior Stores Officer cannot be amended to consider for promotion from Chief Pharmacists."
8. It is also submitted that since the Institute was unable to “ill the post of Senior Stores Officer on deputation vide previous advertisemert for want of suitable candidates, the Institute again decided to fill the post of Senior Store Officer on deputation basis. Accordingly, an Advertisement vide No. JIP/AdmnI/Dep/1 (34)/PDY/2021 dated 19.12.2021 was issued to fill the post of Senior Store Officer on deputation basis with last date for receipt of application on 14.2.2022. The applicant has not applied for the post of Senior Stores Officer. This shows that the applicant knows very well he is ineligible for the post of Senior Stores Officer as he lacks the required essential conditions for appointment by deputation as per RR and also that he is overaged. Many other candidates who have applied for the post of Senior Stores Officer on deputation, in response to this advertisement dated 19-12-2021, but none of them fulfilled the eligibility criteria prescribed for deputation.
9. It is further submitted that in spite of repeated replies to the applicant conveying that he cannot be considered for promotion for the post of Senior Store Officer, he has filed this O.A with the ulterior motive of stalling the deputation process without any valid grounds. It is further submitted that the suggestion given by the grievance committee to consider the case of the applicant for promotion after amending the recruitment rules by incorporating Grade pay 4200/- and revived notification was discussed in the Committee constituted by the 2™ respondent vide Oder No. Admin.II/Committee/2019 dated 03/01/2020. The committee convened on 29.10.2020 found that the DoPT O.M shown by the applicant before the committee is applicable only for promotion, not for appointment on deputation.
10. It is further submitted that the committee noted that the post of Senior Store Officer is in the line of Promotions for the Store Keeper cadre and not of the Pharmacist cadre to which the applicant belongs. Since a proposal for restructuring of the Pharmacy cadre is already with the Ministry, it is not desirable to amend the RR for the post of Senior Store Officer at this stage and the request of the applicant cannot be considered. Hence, the findings of the Committee are not ultra vires as contended by the applicant, and instead as per rules and facts.
11. The applicant's representation dated 08.03.2021 was examined at length and a detailed reply vide O.M No. Admin1/Pro/1 1(16)/2015 dated 1-9-2021 was issued by the 3" respondent highlighting the previous replies given to the applicant and also findings of the committee that the "Applicant belongs to the Pharmacist cadre, which is not feeder cadre for the post of Senior Stores Officer, his promotion to the post of Senior Stores Officer is not feasible and hence request cannot be acceded to" The respondents pray for dismissal of the OA.
12. Heard Learned counsel for both the parties and perused the pleadings and documents .
13. The issue for consideration in this OA is whether the applicant who is working as Pharmacist is entitled to be posted as Senior Stores Officer either on promotion or on deputation.
14. The facts are not in dispute. On completion of 20 years of service in the post of Pharmacist, the applicant was granted MACP- I and II on 01.09.2008 in the next grade pay of Rs 4600 and Rs 4800/-, respectively. In the meanwhile, he was appointed to the post of Store Officer on deputation w.e.f, 07.02.2011. On 01.07.2011, while he was on deputation, he was promoted to the substantive post of Sr. Pharmacist in the Grade Pay of Rs.4200. On 30.1.2013, he was reverted to his substantive post of Sr. Pharmacist. On 24.03.2014, he was granted MACP -II in the Grade Pay of Rs. 5400/- on completion on 30 years of service. Further he was promoted to the Chief Pharmacist on adhoc basis w.e.f. 24.10.2018, and was regularized in the post of Chief Pharmacist on 09.10.2018 in the grade pay Rs. 4200/- vide order dated 18.2.2019. The next promotion post for the applicant is Clinical Pharmacist. The post of Clinical Pharmacist is not vacant at present.
15. On 12.07.2013, the post of Senior Stores Officer was created at JIPMER in the Grade pay of PB-3, Grade Pay Rs. 6600/-. As per the Recruitment Rules for the post of Senior Stores Officer, it is to be filled through 100% promotion, failing which deputation. The post of Senior Store Officer in the highest promotional post in the hierazchy of promotion in the Store Cadre.
16. As per Recruitment Rules, the post of Senior Store Officer is a promotional post from the feeder post of Purchase Officer with 5 years of regular service in the grade, Since there is no eligible candidate for promotion in the feeder post of Purchase Officer to the post of Senior Store Officer, it was decided to fill up the post of Senior Store Officer on deputation as per Recruitment Rules. Accordingly, advertisement dated 27.06.2014, 13.11.2015, 01.08.2018 and 14.03.2020 was issued to fill the post of Senior Stores Officer on deputation with following Essential criteria/qualification/ experience.
“Essential:
Officers of the Central/State/Union Territory Government/ Universities / Statutory / Autonomous Bodies/ Public Sector Undertakings/ Research & Development Organizations
a)i. Holding analogous posts on regular basis
li. With 5 years of regular service in the post in PB - 3 Level-10 (Rs.56100-177500) (pre revised PB-3+ Grade Pay of Rs. 5400)
lil. With 6 years of regular service in the post in PB-2 Level-8 (Rs.47600-151100) (pre revised PB-2+ Grade Pay of Rs.4800) iv. With 7 years of regular service in the post in PB-2 Level-7 (Rs.44900-142400) (pre revised PB-2+ Grade Pay of Rs.4600)
b) Possessing the following qualification and experience:
i. Any Postgraduate Degree/ Diploma in Materials Management from a recognized University / Institution or equivalent; and
ii. Not less than 5 years! experience in a supervisory capacity in handling stores.”
17. The applicant is however a part of Pharmacist cadre, which is distinct and separate from the Store Cadre with the two cadres having different hierarchy of posts and promotion channel. The applicant also applied for the post of Senior Store Officer to the aforesaid advertisements, stating that he was in the pay scale of Grade pay of Rs. 5400/- (Level 9 of 7th CPC) vide MACP. But the minimum eligibility condition as per RR for deputation is 7 years of regular service in the post in PB - 2 Level-7 (Rs.44900-142400) (pre revised PB-2+ Grade Pay of Rs.4600), whereas the substantive Grade Pay of the applicant is Rs.4200. The pay grade level acquired as a result of MACP cannot be counted for this purpose. Hence, the applicant did not fulfil the required essential conditions required for deputation, and was not found eligible for this post. This was also confirmed by the Ministry vide File no, Z.16013/49/2019.INLII dated 27/06/2019. Further the applicant has not applied for the post of Senior Stores Officer (one deputation). vide notification No. JIP/Admn-1/Dep./1 (34V/PDY/2021 dated 19.12.2021
18. As regards promotion to the post of Senior Stores Officer, the applicant's representation dated 08.03.2021 was examined at length and a detailed reply vide O.M No. Admin1/Pro/11(16/2015 dated 1-9-2021 was issued by the 3" respondent highlighting the previous replies given to the applicant and also findings of the committee that the "Applicant belongs to the Pharmacist cadre, which is not feeder cadre for the post of Senior Stores Officer, his promotion to the post of Senior Stores Officer is not feasible and hence request cannot be accedec to”.
19. The grounds raised by the applicant are devoid of merits and facts, and are not supported with material evidence and facts. The fact as conveyed to the Ministry vide letter dated 15.05.2017 that the applicant is not eligible for the post of Senior Stores officer on deputation as he belongs to the Pharmacist cadre is in no way discriminatory, as claimed by the applicant.
20. Mere applying to the post of Senior Stores officer on deputation, whenever the post was advertised, does not make the applicant suitable to be considered unless he fulfil the eligibility criteria prescribed in the Requirement Rules for deputation. Even assuming without accepting the fact that a person in the cadre of Pharmacist could apply for deputation in the Stores Department, even then he does not fulfil the qualifications for the said post. Completion of 37 years of service and experience is not a substitute for the prescribed eligibility condition to be considered for the post of Senior Stores Officer on deputation. Absence of regular service with grade pay of Rs 4,600/- as the applicant’s regular service carries only Rs 4,200/- the higher GP available to the applicant being only as a result of a financial upgradation, under no stretch of imagination could it be held that he fulfils the requisite qualification for the post of Senior Stores Officer.
21. In Umapati Choudhary Vs. State of Bihar (1999) 4 SCC 659, it has been held thus:- "8. Deputation can be aptly described as an assignment of an employee (commonly referred to as the deputationist) of one department or cadre or even an organization (commonly referred to as the parent department or lending authority) to another department or cadre or organization (commonly referred to as the borrowing authority). The necessity for sending on deputation arises in public interest to meet the exigencies of public service. The concept of deputation is consensual and involves a voluntary decision of the employer to lend the services of his employee and a corresponding acceptance of such services by the borrowing employer. It also involves the consent of the employee to go on deputation or not."
22. It is trite that an employee does not get any right to be absorbed on a deputation post (See Ratilal B.Soni Vs. State of Gujarat - AIR 1990 SC 1132.)
23. Thus the right of a deputationist having been clearly defined and delineated in law, we have no hesitation to hold that the contentions raised by the applicant are totally misconceived and untenable. The borrowing Cepartment has, in unequivocal terms, made it clear that the applicant does not meet the requirements of the Stores Department. That settles the issue once and for all.
24. The post of Senior Stores Officer naturally relates to the stores cadre in JIPMER. It is for the employer organization to determine what cadre the newly created post should belong to. The applicant is from the Pharmacist cadre and he * no right to claim that the post of Senior Stores Officer should belong to his cadre. He has not been discriminated against either under Art 14 or 16 of Constitution as the ground for any claim will arise only if he formally fulfils the Qualification Requirement mentioned in the Recruitment Rules for the post of Senior Stores Officer. In recruitment by deputation, the employer has the right to shortlist the best available candidates from amongst those who fulfil the RR requirements.
25. Original Application fails and it is accordingly dismissed. In the peculiar facts and circumstances of the case, the parties are directed to suffer their respective costs.
