HONBLE MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER

1. The applicant is challenging the office order dated 2.5.2008 (A-12) modifying his designation as T-I-3(Technical Assistant) instead of T-3.

2. The applicant joined the service of the Central Marine Fisheries Research Institute, Kochi as Field Assistant (T-1) on 14.3.1988. He was granted promotion as Junior Technical Assistant in T-2 w.e.f. 1.1.1994. As per the relevant Technical Service Rules in force, he is eligible to be considered for five yearly assessment and promotion irrespective of vacancies in the promotion post. But, instead of granting promotion, he was granted two advance increments w.e.f. 1.1.99. While so, by Annexure A-2 order, he was promoted as Technical Assistant (T3) in Category II on the recommendation of the Assessment Committee w.e.f. 1.1.2004. His pay was fixed at Rs. 5125 + 75(PP) w.e.f. 1.1.2004. Thus, even an increment has not been granted on his promotion to T-3, however, the personal pay of Rs. 75/- was recovered from him. The applicant submitted representation which was rejected by A-5. He again submitted A-6 and A-7 representations which were replied to by A-8. In the meanwhile, the respondents called for fresh option either for old or new TSR. The office order at Annexure A-11 shows that the applicant is in the grade of T-3. While so, without any notice or prior intimation, A-11 was modified by A-12 office order by which the applicant was placed in Technical Assistant T-I-3. The applicant should have been fitted in T-II-3 in Category- II. Aggrieved by A-12, he submitted A-13 followed by a lawyer notice (A-14). As there was no reply, he filed this O.A to set aside A-12 so far as it affects the change of designation as T-1-3 instead of T-3, to grant promotion to T-4 in category II by five yearly assessment, to refix his pay in T-3 Category I as envisaged in A-15 as per FR 22(I)(a)(i) w.e.f. 1.1.2004, to refund the amounts recovered from him as per A-16 and to restore him to T-3 in Category II as if A-12 is not in existence.

3. The respondents filed reply statement opposing the contentions in the O.A. The Technical Service Rules of ICAR came into force with effect from 1.10.1975. It is grouped into 3 categories consisting of the following grades:

Category I T-1, T-2 & T-I-3

Category II T-II-3, T-4 & T-5

Category III T-6,T-7,T-8 & T-9

The Career Advancement of the personnel will be in their respective categories and will be done in the following manner:

There shall be a system of merit promotion from one grade to the next higher grade irrespective of occurrence of vacancies in the higher grade or grant of advance increment(s) in the same grade on the basis of assessment of performance. The persons concerned will be eligible for consideration for such promotion or for the grant of advance increment(s) after the expiry of five years service in the grade. Since merit promotions are restricted within the category of persons holding highest grades viz. Grade T-I-3 in Category I Grade T-5 in Category-II and Grade T-9 in Category III are not eligible for further promotion. There is , however, no bar for grant of advance increments to such Technical Personnel who are in the highest grade of category subject to the maximum of three increments with in the grade."

The category bar between Category I and Category II was removed by the 3rd respondent vide order dated 1.2.2005 according to which an employee with 5 years of service in Grade T-2 and possessing qualifications for entry to Category II by direct recruitment, in the event of merit promotion through five yearly assessment will be placed in the grade T-II-3. However, the employees with five years of service in grade T-2 and not possessing qualifications prescribed for entry into Category II by direct recruitment will be placed in T-1-3 grade in the event of merit promotion through Five Yearly Assessment. Such employees in the event of merit promotion through Five Yearly Assessment and employees in the event of improving their qualification and acquiring degree/diploma etc. will in case of merit promotion be placed in Grade T-II-3.

The ICAR introduced New Technical Service Rules vide letter dated 3.2.2000 by which model qualification for direct recruitment of technical personnel at the entry grades in Category I, II and III irrespective of the functional groups was also notified(R-1). As per the new TSR the Technical Services are grouped into 3 categories consisting of the following grades:

Category-I T-1 &T-2

Category II T-3, T-4 and T-5

Category III T-6,T-7,T-8 and T-9

As per the new rules the entrants of Category I at T-1 grade will be eligible for assessment promotion to T-2 grade after completion of five years service. The T-2 personnel possessing the qualification of Degree would be eligible for assessment promotion to T-3 grade after 5 years of service while those not possessing Degree shall become eligible for assessment promotion to T-3 grade only after 10 years of service in T-2 grade. However, the assessment promotions from T-3 to T-4,T-4 to T-5 shall continue to be regulated at 5 years interval.

On introduction of the new Technical Service Rules, an opportunity was given to the then existing technical employees who desires to be governed as per the existing (old)TSRs by specifically exercising an individual option in writing to the Director of the Institute within a period of 30 days from the date of issue of the Notification. It was also mentioned therein that in the case of those officials who do not exercise any option within the prescribed period, they will be deemed to be governed by the new TSR and that the option once exercised shall be irrevocable and final. The 3rd respondent issued clarification with regard to relevance of qualification for career advancement through promotions under New TSR vide Circular dated 20.1.2005 (Annexure R-2).

To overcome the difficulties due to implementation of the model qualifications notified vide Annexure R-1 notification dated 3.2.2000, the Governing Body of the 3rd respondent decided to make some amendment in the model qualifications and accordingly revised qualifications for recruitment/assessment promotion of technical personnel under various functional groups was notified vide letter dated 24.2.2006 (Annexure R-3).

A meeting of Central Joint Staff Council of ICAR a forum constituted with elected members of the employees to present grievances/hardships of the employees to the authorities of ICAR, was held in the month of April, 2006 and the Staff side representatives requested for allowing fresh option to the Technical employees for opting either Old TSR which was in force prior to 3.2.2000 or new TSR (came into effect from 3.2.2000. Similar requests from various constituent units were also received by the 3rd respondent. This issue was discussed in detail and after careful examination of the matter, it was decided by the Competent Authority in the ICAR to allow opportunity of fresh option to the employees for opting for either the Old TSRs or New TSRs vide ICAR letter dated 19.10.2006 (Annexure A-10). The Technical personnel were instructed to exercise their option very cautiously by keeping in mind the points of doubts frequently raised in the past as well as the clarifications thereof provided in Annexure A- 10, without having any misreading or misunderstanding of the TSRs. The employees were also directed to submit their option within a period of 30 days from the date of circulation of Annexure A-10. It was also mentioned in A-10 that the option exercised shall be irrevocable and final.

The applicant who possesses the qualification of Pre-degree, was initially appointed as T-1 in the pay scale of Rs. 975-1540. He was promoted as T-2 in the pay scale of Rs. 1200-2040 w.e.f. 1.1.1994. After completion of 5 years in T-2 grade his performance was assessed and the Committee recommended for granting 2 advance increment w.e.f. 1.1.1999. His performance was assessed again in the next year and one more advance increment was granted w.e.f. 1.1.2000. On introduction of new TSR no option was exercised by the applicant as per Annexure R-1, therefore, he was deemed to have opted for new TSR. Accordingly Annexure R-4 was issued. As per the new TSR after completion of 10 years service in T-2 grade his performance was assessed by a duly constituted Assessment Committee and granted promotion to T-3 grade in Category II in the pay scale of Rs.4500-7000 w.e.f. 1.1.2004. However, when a chance of exercising new option was given the applicant exercised his option (Annexure R-5). On the basis of the revised option, necessary order considering him to be governed by Old Technical Service Rules was issued (Annexure A-11). As per the old TSR, a technical person appointed in T-1 grade in Category-I who does not possess degree can get promotion uptoT-I-3 grade only. Unless he improves his qualification and acquire Degree/Diploma he cannot be considered for further promotion. His claim for granting promotion to T3/T-4 grade as per new TSR cannot be accepted.

As regards fixation of pay it is stated that as per the guidelines contained in ICAR letter dated 29.7.1990 the advance increments granted to a technical personnel on the basis of five yearly assessment should not be counted for fixation of pay on promotion to the next higher grade as a result of subsequent assessment but it should not be less than the pay plus advance increments drawn in the lower grade. The applicant had opted for fixation of pay in the promoted post w.e.f. 1.1.2004 and therefore his pay in the promoted post was fixed as per provisions contained in FR 22(I)(a)(1). By fixing the pay of the applicant as per the above method, his pay was less than the amount of basic pay plus advance increments drawn in the lower post. Therefore, the balance amount of Rs. 75/- was shown as personal pay.

4. The applicant filed rejoinder stating that since 1.1.2004 on accepting the new TSR, the applicant was granted T-3 grade in Category-II. The applicant exercised his option pursuant to A10. He further stated that no intimation was given to him stating lack of performance. The Assessment Committee granted three advance increments. He has opted only after Annexure A-11 in the fag end of the year 2006 when he has completed almost three years in the promoted post. Therefore, the reversion of the applicant is illegal, unreasonable, erroneous and perverse. He has produced Annexure A-17 withdrawing the order issued for not counting of advance increment as part of pay.

5. Heard learned counsel for the parties and perused the records produced before us.

6. The applicant is challenging the office order dated 25.5.2009 changing the designation of the Technical staff including the applicant who have opted for Old TSR as T-I-3 instead of T-3. As per office order dated 29.1.2008 (A-11) the designation of the applicant on exercise of his option for Old Technical Service Rules was shown as T-3 (Technical Assistant). As per the revised option the applicant would be governed by the old Technical Service Rules. Therefore, on submission of the revised option he will be governed by the old TSR and the benefits got under the New TSR will have to be surrendered by him. As per the old TSR, he is eligible for promotion upto T- I-3 in Category-I only and not beyond since he does not possess the minimum qualification of Degree for entry into Category-II.

7. The applicant who was working in category of T-2 Category-I was granted assessment promotion to T-3 in Category-II w.e.f. 1.1.2004 in accordance with the new TSRs in force, by order dated 7.10.2004 (A2). Fresh options within 30 days for opting for either old Technical Service Rules or New Technical Service Rules, were called for by circular dated 19.10.2006 (A- 10) much after the assessment promotion was granted to the applicant. It was specified in the endorsement that if they do not submit fresh option within the above period it shall become automatically covered under the New Technical Service Rules. Therefore, it is clear that the applicant had submitted option for Old TSR.

8. The New Technical Service Rules was introduced by letter dated 3.2.2000 and the applicant having not submitted any option he is deemed to have opted for new TSR. To overcome the difficulties arising out of the implementation of the qualifications, etc it was decided to allow opportunity of fresh option to the employees for opting for either the Old or New TSRs. The applicant has opted for the Old TSRs on 30.11.2006.

9. The issue that comes up for consideration is whether the applicant is entitled to opt for the old TSR in response to circular dated 19.10.2006 on one hand and retain the assessment promotion granted to him under the new TSR vide Annexure A-2 dated 7.10.2004.

10. In the preamble to the reply statement, the respondents have mentioned about the objective and organisation set up of ICAR under which the respondents unit CMFRI comes. The ICAR, is a Society registered under Societies Registration Act, 1980 Presently, it has 47 Research Institutes, 5 National Bureaus, 26 National Research Centres, 10 Project Directorates, 594 Krishi Vigyan Kendras and 73 All India Coordinated Research Projects, etc. It is financed wholly by grant from Ministry of Agriculture (Department of Agricultural Research & Education). As per Bye laws of the ICAR, except in regard to matters for which specific provision has been made in the Rules, Bye laws, Regulations or orders made or issued by the Society, the Service and Financial powers framed by the Govt. ofIndia and such other Rules or orders issued by the Government of India shall apply mutatis mutandis to the employees of the ICAR Society.

11. The ICAR was set up to facilitate research, higher education and extension of fruits of such research to the fishermen, farmers, etc, as agriculture, continues to be the occupation of many, in our country. Therefore, having the scientific and technical expertise of the personnel in the network of Research Institutes/National Bureau, Project Directorate, etc under ICAR, is of utmost importance.

12. It is in this context that ICAR introduced new TSR and issued R-2 whereby higher qualification of graduation was made mandatory for those inducted in Category-II and Post Graduation for such entrant in category-II for promotion upto T-6 grade in Category III. Acquisition of higher essential qualification for further promotion and the need to encourage excellence in performance and opportunity for growth for promotees, was elaborated in R-2 for bringing it to the notice of all the staff. ICAR, the 3rd respondent, while notifying the new TSRs on 3.2.2000 at R-1 vide its para 3 called for options from those who want to be governed by the old TSR. The applicant did not give any option. Therefore, the first respondent issued R-4, a list of 197 officials who would be governed by the new TSR w.e.f. 3.2.2000 as they did not opt to continue under the old TSR, which was in force upto 3.2.2000.

13. The main difference between old TSR and new TSR is that as per old TSR a person in T-2 grade who does not possess the required qualification of graduation for entry into category-II is eligible for promotion only upto T-1-3 grade. He will get promotion beyond T-1-3 only if he acquires graduation. However, as per new TSR, a person in T-2 grade with 10 years service can get promotion to T-3 grade in Category-II on the basis of assessment of performance. Therefore, had the applicant opted in 2000 for the old TSR, he could not have been promoted beyond T-1-3. Since he did not opt, he became the beneficiary for promotion to T-3 grade in Category-II by virtue of 10 years of service, without getting the mandatory educational qualifications of graduation under the new TSR. It is noted above that, only on the request of staff union representatives, after deliberations at the highest level, an opportunity for exercising option in 2006 was permitted. Thousands of personnel all over the country would have availed this opportunity. So any further changes if needed, it has to be taken up by the staff union with the competent authority.

14. We notice that the old TSR was in force only tilll 3.2.2000. In that case, the applicant will be governed by the old TSR and therefore he shall not be entitled to the assessment promotion granted to him vide order dated 7.10.2004 under the new TSR. Therefore, the applicant having exercised the opportunity of revising the option and elected to opt for the Old TSR, he shall be governed by the Old TSR throughout his career, hence, he has to forgo all the benefits received by him under the new TSR.

15. In this view, we do not find any infirmity in the order at Annexure A12. The O.A lacks merit and accordingly it is dismissed. No costs.