IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MAY, 2019 BEFORE THE HON' BLE MR.JUSTICE R. DEVDAS WRIT PETITION NO.36477 OF 2014(S-RES) c/w WRIT PETITION NO.27262 OF 2018(S-RES) IN W.P. NO.36477 OF 2014 BETWEEN SMT K T ANURADHA D/O LATE K.T.NARAIN AGED ABOUT 57 YEARS, PRESENTLY WORKING AS TECHNICAL OFFICER GRADE-III. JRD TATA MEMORIAL LIBRARY INDIAN INSTITUTE OF SCIENCE, BANGALORE-560012 ... PETITIONER (BY SRI ADITYA SONDHI, SENIOR COUNSEL FOR SMT B V NIDHISHREE, ADVOCATE) AND 1. THE UNION OF INDIA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HIGHER EDUCATION, MINSITRY OF HUMAN RESOURCE DEVELOPMENT NO.128, ‘C’ WING, SHASTRY BHAVAN, NEW DELHI-110015 2. THE DIRECTOR INDIAN INSTITUTE OF SCIENCE, BANGALORE-560012 3. THE REGISTRAR INDIAN INSTITUTE OF SCIENCE, BANGALORE-560012 (BY SRI SHIVANANDA D S, ADVOCATE FOR R1 ... RESPONDENTS SRI PADUBIDRI MOHAN RAO, ADVOCATE FOR R2 & R3) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-2 AND R-3 TO CONSIDER THE CLAIM OF THE PETITIONER FOR CONTINUATION OF HER SERVICES IN THE SCIENTIFIC CADRE FROM THE DATE OF HER INITIAL APPOINTMENT, I.E., W.E.F. 29.3.1989 AND GRANT HER ALL CONSEQUENTIAL BENEFITS THAT SHE WOULD BE ENTITLED TO ON CONTINUATION OF HER SERVICES IN THAT CADRE, INCLUDING PROMOTION, ARREARS OF SALARY ETS. IN TERMS OF HER REPRESENTATION DTD 27.3.2014 (ANNX-V)AND ETC.
IN W.P. NO.27262 OF 2018 BETWEEN SMT. K T ANURADHA D/O LATE K T NARAIN AGED ABOUT 60 YEARS, WORKING AS TECHNICAL OFFICER GRADE-III J R D TATA MEMORIAL LIBRARY INDIAN INSTITUTE OF SCIENCE BANGALORE-560012 (BY SRI ADITYA SONDHI, SENIOR COUNSEL FOR SMT B V NIDHISHREE, ADVOCATE) AND 1. THE UNION OF INDIA DEPARTMENT OF HIGHER EDUCATION ... PETITIONER MINISTRY OF HUMAN RESOURCES DEVELOPMENT REPRESENTED BY ITS SECRETARY NO.128, ‘C’ WING, SHASTRY BHAVAN NEW DELHI-110015 2. THE DIRECTOR INDIAN INSTITUTE OF SCIENCE BANGALORE-560012 3. THE REGISTRAR INDIAN INSTITUTE OF SCIENCE BANGALORE-560012 ... RESPONDENTS (BY SRI SHIVANANDA D S, ADVOCATE FOR R1 TO R3) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED MEMORANDUM DTD:25.5.2018 [ANNEXURE-A TO THE W.P.] AS WELL AS THE IMPUGNED COMMUNICATION DTD:2.8.2017 [ANNEXURE-B TO THE W.P.] BOTH OF WHICH ARE ISSUED BY THE R-3 AND ETC.
THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED ON 15.04.2019 AND COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY, THIS COURT MADE THE FOLLOWING:
COMMON ORDER The petitioner was appointed as Scientific Officer in the National Centre for Science Information (hereinafter referred to as “NCSI”), in the services of Indian Institute of Science (hereinafter referred to as “IISc”). The order of appointment was issued on 28.03.1989. In terms of the appointment order the petitioner was initially appointed for a period of five years and on probation for a period of one year. On 23.03.1990, the probationary period was declared as satisfactory. In terms of the letter of appointment the petitioner continued to work as Scientific Officer in NCSI, for a period of four years. On 05.04.1994, the Assistant Registrar of IISc issued a letter requesting a report on the work done by the petitioner in NCSI for review and for continuation of her services. On being satisfied with the work of the petitioner, by order dated 07.06.1994, the services of the petitioner was continued upto 31.03.1997 in NCSI.
2. On 13.07.1994, the petitioner submitted a representation stating that her services have to be continued in the cadre of Scientific Officer and sought promotion to the post of Senior Scientific Officer, Principal Research Scientist, etc. However, the selection committee, while evaluating the performance of the petitioner, took a decision to change the cadre from ‘scientific’ to ‘administrative’ and promote the petitioner as Technical Officer Grade-II (Administrative cadre). The decision of the selection committee in the note sheet dated 20.06.1996 culminated in an order dated 14.11.1996.
By letter dated 17.12.1996, the petitioner accepted the promotion to the post of Technical Officer Grade-II, however, she also requested that her next evaluation be made in three years instead of six years. The petitioner was further promoted to the post of Technical Officer Grade-III, on 29.06.2001.
3. The petitioner once again made a representation on 24.11.2005, requesting change of cadre from administrative to scientific/academic cadre. Subsequently, several other representations have been made by the petitioner. In one such representation dated 22.12.2009, the petitioner reminded the respondent IISc of the assurance that was given to her that if she acquires a Ph.D degree, change of cadre could be considered. It was also brought to the notice of the respondent that the petitioner registered herself for PhD degree in Mysore University in 1998, after getting the approval from the respondent to carry out the research work at Mysore University. It was also brought to the notice of the respondent that though the petitioner completed her thesis in 2006 and submitted the same in January, 2007, because of procedural and administrative problems, there was delay in conferment of PhD degree, which was finally awarded during February, 2009. However, by quoting a council resolution which was resolved in June, 2008, that there shall be no transfer of technical officers to scientific officers cadre, even if one acquires higher qualifications, such as ME/MTech/MSc. Engg./PhD, the request of the petitioner was rejected.
4. Subsequently, by letter dated 27.03.2014, the petitioner herein made a representation bringing to the notice of the respondents that the petitioner, having been selected to the post of Scientific Officer, as per the advertisement issued by the respondent, her cadre could not have been transferred from Scientific Officer to Technical Officer (Administrative). The respondents have replied by a communication dated 30.06.2014 narrating the events from the date of appointment. It was stated that during 1993, when the committee was constituted to evolve norms for implementation of revised pay scales to scientific and technical staff, the committee found that the qualifications held by the petitioner could be treated as equivalent to ME/MTech/MSc.Engg. However, during 1995, on completion of six years of regular service, the case of the petitioner was considered for promotion as per the provisions contained in the council resolution dated 13.03.1982 and thereafter, cadre was changed to Technical Officer Grade-II. Accordingly, the representation of the petitioner was rejected by the impugned communication dated 30.06.2014.
5. Subsequently, by issuing a communication dated 02.08.2017, the petitioner was informed that she will be reaching the age of superannuation on the afternoon of 31.07.2018. The details of the entitlement of leave benefits on retirement from the services of the respondent institute was also made known to the petitioner. However, it is an admitted fact that the petitioner was continued in service even after the date of retirement as was mentioned in the communication dated 02.08.2017. Therefore, a memorandum date 25.05.2018 was issued by the respondent institute that due to an erroneous entry made in the service book of the petitioner that she shall retire as on 31.07.2018, it was stated that the petitioner is deemed to have retire from service as on 31.08.2017. The impugned communication dated 02.08.2017 and memorandum dated 25.05.2018 have been challenged in a subsequent writ petition filed in W.P.No.27262/2018.
6. Shri. Aditya Sondhi, learned Senior Counsel representing the petitioner submitted that the petitioner having acquired Diploma in Information Science, was declared to have a degree equivalent to Master of Library Sciences. Moreover, the petitioner was selected to the prestigious Fulbright Fellowship for the year 1994-95 and was awarded the Fulbright Hays Act of the US Congress, which gives an opportunity to pursue higher studies in the US and undergo practical training in the latest developments in the profession. The learned Senior Counsel submits that having regard to the Masters degree obtained by the petitioner, the respondent institute had in fact permitted the petitioner to pursue PhD degree. It was also submitted that the council of the respondent institution had in fact clarified the council’s resolution dated 20.06.2008, by a subsequent resolution that promotional avenues as was existing prior to 20.06.2008, be restored in cases of those scientific assistants and technical officers who were on role as on that date and enrolled before 20.06.2008 for acquiring higher qualification such as ME/MTech/MSc.(Engg.)/PhD, pursued their studies and obtained such higher qualification after 20.06.2008.
7. The learned Senior Counsel therefore submitted that by virtue of the subsequent resolution of the council, the respondent institution was duty bound to consider the case of the petitioner for promotion having acquired PhD from Mysore University, having registered for the PhD in 1998 and having submitted her thesis in 2006, however, for reasons beyond the control of the petitioner, the degree of Ph.D was bestowed on the petitioner in February, 2009.
8. The learned Senior Counsel has also pointed out from the writ papers that the change of cadre from Scientific Officer to Technical Officer (Administration) was based on a wrong assumption that the petitioner did not have the required qualification. As noted above, the Diploma in Information Sciences, obtained by the petitioner has been equated to a Masters Degree. It was also pointed out that the petitioner is the only person whose cadre was changed from academic to administration.
9. The learned Senior Counsel further submits that the age of superannuation for Scientific Officer (Teaching Staff) is 65 years, while it is 60 years for Technical Officer (Non-teaching Staff). It is the contention of the petitioner that if her representations were considered in accordance with law, the respondent institution should have passed appropriate orders re-transferring the petitioner from the cadre of Technical Officer (Administration) to Scientific Officer (Academic) and the services of the petitioner should have been continued till August, 2022.
10. Per contra, the learned counsel for the respondent institution (IISc) in W.P.No.36477/2014, Sri Padubidri Mohan Rao, submitted that when the petitioner was transferred from the cadre of Scientific Officer to Technical Officer, by order dated 14.11.1996, the petitioner never raised any objection and accepted the said order without any demure. Now, after nearly eighteen(18) years after the order dated 14.11.1996, the petitioner has filed the instant petition. Therefore, it is submitted that the petition requires to be dismissed on the ground of delay and laches. The learned counsel for the respondent submitted that the instant petition is merely a speculative petition.
11. Sri D.S.Shivanand, learned counsel appearing for the respondent – Institution in W.P.No.27262/2018, submitted that the evaluation committee which met on 08.06.2018 reconsidered the representations made by the petitioner and having considered all the contentions and grievances of the petitioner, decided not to recommend the case of the petitioner for transfer to Scientific cadre.
12. Heard the learned Senior Counsel Sri Aditya Sondhi, for the petitioner, Sri Padubidri Mohan Rao and Sri D.S.Shivanand, for the respondent – institution (IISc) and perused the writ papers.
13. The petitioner herein had approached this Court in W.P.No.36477 of 2014, questioning the endorsement dated 30.06.2014, whereunder, the representations made by the petitioner starting from 13.07.1994 to 02.06.2014 was considered and by stating that the petitioner did not have the qualification equivalent ME/M.Tech/MSc (Engg.), as on 1995 when the committee considered the representations, rejected the same. However, based on the resolution of the Council dated 20.06.2008, the earlier resolution of the Council dated 13.03.1982, which had barred transfer of Technical Officer to Scientific Officer cadre even on acquiring higher qualification such as ME/M.Tech/MSc (Engg.)/PhD, was clarified permitting transfer of such employees from Technical to Scientific cadre, if they had enrolled for acquiring higher qualification before 20.06.2008 and obtained such higher qualifications after 20.06.2008. It is very important to notice that the Evaluation Committee, which met on 08.06.2018 also took note of the resolution of the Council dated 20.06.2008 and found that the petitioner herein had enrolled for Ph.D degree before 20.06.2008 i.e., during the year 1998 and submitted her thesis in January, 2007. Due to procedural and administrative delay, beyond the control of petitioner, the degree was awarded during February, 2009. Nevertheless, in terms of the resolution dated 20.06.2008, the claim of the petitioner was required to be considered. Curiously, the Evaluation Committee admits that as per the Council resolution dated 20.06.2008, the petitioner was eligible for evaluation for a possible transfer to Scientific cadre and proceeds to evaluate the petitioner. However, without assigning any reasons, the Evaluation Committee declines to recommend the case of the petitioners for transfer to Scientific cadre.
14. What is even more surprising is that while the Evaluation Committee met and decided the case of the petitioner on 08.06.2018, the impugned order or memorandum dated 25.05.2018 was issued, relieving the petitioner from her service with immediate effect. Though the memorandum is dated 25.05.2018, the same was delivered to the petitioner and the petitioner received the said memorandum, under protest on 25.06.2018. The chain of events would definitely create a doubt in the mind of this Court. The submission of the learned Senior Counsel that the decision of the Evaluation Committee was predetermined and without application of mind is hard to ignore. It is also possible that the impugned memorandum dated 25.05.2018 is back-dated and issued after the decision of the Evaluation Committee.
15. For the foregoing reasons, this Court is of the considered opinion that the impugned orders dated 30.06.2014 in W.P.No.36477 of 2014; Memorandum dated 25.05.2018 and the resolution of the Evaluation Committee dated 08.06.2018 in W.P.No.27262 of 2018 require to be set aside and are accordingly quashed and set aside.
16. The respondent Institution (IISc), shall reconsider the representations of the petitioner and treat the memorandum of writ petitions as further representations and pass speaking orders, in accordance with law and in the light of the observations made herein above, as expeditiously as possible and at any rate within a period of two months from the date receipt of certified copy of this order.
Accordingly, these writ petitions stand partly allowed in the above terms.
SD/- JUDGE DL/KLY