ORDER
B. Panigrahi, J. (Chairman)
1. The short facts leading to filing of this case are as follows:
2. The applicant, after due selection by the Selection Committee, was appointed as Senior Scientific Officer (Biology) in the scale of pay of Rs. 8,000-13500 (Group `A) by the Lt. Governor of NCT of Delhi vide order No. F19/7/96-Hom-111/23-36 dated 5.1.1999 in the Forensic Science Laboratory (for short `FSL) of the Government of NCT, Delhi on deputation basis. He joined that post on 4.3.1999. The deputation was originally for one year which was extendable further as per the respondents Order No. F.104/FSL/Estt./98 dated 5.3.1999. Respondent No. 1 virtually extended the applicants deputation period from time to time.
3. The applicant claims to have qualified M. Sc in Biotechnology and B. Sc with Botany, Zoology and Chemistry. He has also obtained Ph. D degree and contributed so many articles to Science and Forensic Science Publications. He participated in Conferences relating to Forensic Science. The applicant applied for the post of Senior Scientific Officer (Biology) in response to Respondent No. 1s advertisement for recruitment. The advertisement was made for filling up three posts by Transfer on deputation mode. The applicant has claimed to have completed seven years regular service in a post in the scale of pay of Rs. 1640-2900 or equivalent as contained in Column 12 of the Recruitment Rules. He applied for the said post through proper channel and his application was forwarded by the Government of Uttar Pradesh alongwith the dossiers and confidential reports. Accordingly, the applicant was appointed as Senior Scientific Officer under the respondents. Before joining the post of SSO (Biology) in the Forensic Science Laboratory of Govt. of NCT, Delhi, he worked as regular Senior Scientific Assistant in FSL (UP) at Lucknow from 24.10.1990 to 3.3.1999, i.e., for 8 years and 4 months in the scale of pay of Rs. 1600-2660. He was also appointed to this post on his selection for the same by the U.P. Subordinate Services Selection Board. From the comparative statement of scales of pay of the posts of Scientific Assistant and Senior Scientific Assistant before the 4th Central Pay Commission and after 5th Central Pay Commission in UP, Central Govt. and Delhi Govt., it will be observed that the pay scale of Scientific Assistant in UP to which the applicant was first appointed was higher than that for the same post in Government of NCT of Delhi as well as in the Central Government prior to 4th Pay Commission and thereafter it became equal in all of them. However, after implementation of the recommendations of 4th and 5th Pay Commissions, it is seen that the scale of pay of Senior Scientific Assistant in UP was slightly less than the scale of pay of Govt. of NCT and Central Government. But, according to the applicant, the status of these posts and the duties and responsibilities attached to these under all the above three Governments are same and equal. Finding the applicant competent and eligible for the post of Senior Scientific Officer (Biology), Government of NCT of Delhi recommended the applicants name to the Union Public Service Commission (for short `UPSC) for his permanent absorption against the said post. But, unfortunately, the UPSC being not agreed to the suggestions of NCT, turned down their proposal on the ground that it did not conform to the provisions of the Recruitment Rules. It appears that NCT of Delhi again wrote back to the UPSC stating that the terminology used `or equivalent in Column 12(a)(iii) of the Rules is intended to take care of these variations. Scale of Pay of an equivalent/same post is not the same in all States. Therefore, the UPSC rejected the suggestions of the NCT and returned the case of applicants absorption. Therefore, the applicant being aggrieved by the affect of the order of the UPSC, filed a case here. The Tribunal vide order dated 10.4.2003 rejected the applicants claim on the ground that he did not have the minimum requisite qualification and also did not hold the equivalent post before his deputation. Therefore, he could not have been absorbed as Senior Scientific Officer.
4. Being aggrieved by and affected with the order, the applicant had preferred Writ Petition No. 4516/2003 before the Honble High Court of Delhi. The Honble High Court vide its order dated 9.11.2005 has remanded the case to dispose it of on the lines of the directions passed by them. It has inter-alia been stated that the applicant must be treated to have possessed the minimum educational qualification for absorption to the post of Senior Scientific Officer since UGC after examination of the academic qualification have found that the applicant did possess the requisite qualification. In that view of the matter, the Tribunals judgement holding that the applicant did not possess the minimum qualification prescribed under the Rules could not further be sustained.
5. Another limb of the applicants case before the Honble High Court was that the applicant had seven years regular service in the scale of pay of Rs. 1640-2900 or equivalent. The Hon’ble Court noticed that this contention was, for the first time, raised before them but not before the Tribunal. Therefore, there was no occasion for the Tribunal to deal with such aspect as to whether the applicant was holding the scale of Rs.1640-2900 or equivalent. Hence, the Honble High Court has remanded the case for further hearing.
6. The UPSC, in their reply, have reiterated their stand that since the applicant did not qualify, therefore, there was no occasion to send intimation to the applicant for attending interview.
7. The UPSC further stated that before the matter was disposed of finally by the Honble High Court, pursuant to its order dated 14.7.2004, the question of eligibility as regards the educational qualifications prescribed in Clause 8 of the Recruitment Rules was further scrutinized by the Commission and it noticed that academic qualification of the applicant was equivalent qualification as required for the post as per Clause 8 of the Recruitment Rules but they noticed that the applicant having not held the post of SSA regularly for a period of seven years in the scale of pay of Rs.1640-2900 or equivalent, therefore, he could not be called for the interview and resultantly, he was found ineligible.
8. Mr. O.P. Gehlaut, learned Counsel appearing for the applicant has advanced his contention with strong intensity of conviction that the applicant was selected to the post of Senior Scientific Assistant by the Staff Selection Commission. Pursuant to this, he was appointed under the State of U.P. and worked from 24.10.1990 to 3.3.1999. Before that, he also worked as regular Scientific Assistant in that Laboratory from 18.2.1989 to 23.10.1990 in the revised scale of pay of Rs. 4500-7000. In the meanwhile, he came on deputation and accordingly, was appointed as Senior Scientific Officer. When the question of his regularization came, unfortunately, the UPSC took a `U turn and rejected the applicants claim for regularization on the ground that he did not possess the requisite qualification. Since before the Hon’ble High Court, the UPSC have candidly admitted that the applicant possessed the requisite qualification, now such stand that he did not have the requisite qualification is no longer available to them.
9. Learned Counsel for the applicant has further advanced a contention that as per the Requirement Rules (Annexure A/5), for the post of Senior Scientific Officer, 2/3rd of the posts have to be filled up by transfer on deputation/transfer failing which by direct recruitment. It is further claimed that the applicant has rendered 7 years regular service in the post in the pay scale of Rs. 1640-2900 or equivalent. In this regard, he invited our attention to the letter issued by the Government of NCT, Delhi dated 5.4.2002. It is indicated therein:
With regard to the qualifying service in the scale of Rs.1640-2900 or equivalent, it is to mention that it is the scale of the desired feeder post of Sr. Scientific Assistant (SSA), Group-C, Non-Gazetted, Non-Ministerial. Dr. Dhruw Sharma was working on the same post of Sr. Scientific Asstt., Group-C in the pay scale of Rs. 1600-2660 in Forensic Science Laboratory, U.P. The pay scale of Rs. 1640-2900/- does not exist in the pay structure of scientific posts of FSL (UP). It is also to mention that the feeder post of S.S.A. which is the post of Scientific Assistant, Group-C does exist in FSL (UP) as well as in the CFSLs & FSL, Delhi having exactly the same pay scale of Rs. 1400-2300/
10. From the submission, it is further transpired that the post of Senior Scientific Assistant in FSL, UP as well as in CFSL and FSL, Govt. of NCT comes under Group `C’ (Non-Gazetted) and have the similar nature of duties, i.e., to analyse the forensic biological exhibits and to assist in every respect to Senior Scientific Officer or Assistant Director in day-to-day work in FSL. Therefore, in that view of the matter, there appears to be no room for doubt that the applicant was holding equivalent post before he was absorbed as Senior Scientific Officer in FSL. In a recent letter, Director-cum-Chief Forensic Scientist has written to Direcotr, FSL, U.P., Lucknow regarding nature of duties and responsibilities of Senior Scientific Assistants working in the Central FSL. It is indicated therein that the posts of Senior Scientific Assistants working in FSL, UP in the scale of pay Rs. 1600-2660 are analogous to Senior Scientific Assistant posts in CFSLs in the scale of pay of Rs. 1640-2900. In that view of the matter, there can be no dispute that the applicant is fully eligible for being considered to the post of Senior Scientific Officer under Clause (a)(iii) to Rule 12 of the Recruitment Rules.
11. Mrs. B. Rana, learned Counsel appearing for Respondent No. 2(UPSC) has advanced an inexorable plea by stating that albeit the applicant has possessed the minimum educational qualification under Clause 8 of the Recruitment Rules but he having no qualifying regular service under Clause 12 of the Rules, was, therefore, not considered for absorption as Senior Scientific Officer even though the Govt. of NCT recommended his case. From her further submission, it has transpired that the UPSC could not have relaxed the conditions in so far as the applicant was concerned. When there are group of employees affected by certain stringent provisions, the Commission could have advised the Government for relaxation of Rules. In an individual case, the Commission is very strict in enforcing the Rules in letter and spirit. Since the applicant was not having the scale of pay of Rs. 1640-2900 or equivalent, therefore, he was rightly ignored for being regularized. There are no regular SSAs in the scale of pay of Rs. 1600-2660 under Government of NCT. Therefore, the applicant did not qualify the eligibility criteria for being considered to the post of SSO. She has drawn our attention to the letter of Ministry of Personnel dated 28.12.2004 whereby the applicant’s case was considered. The Department of Personnel have also observed that the applicant having not received the scale of pay Rs. 1640-2900 during the period he worked under FSL, UP from 24.10.1990 to 3.3.1999, his case was, therefore, rightly rejected by the UPSC.
12. After hearing the submissions and counter submissions advanced by both the parties and on going through the different provisions of the Recruitment Rules, we noticed that in Rule 12 of the Recruitment Rules, it is stipulated as follows:
Transfer on Deputation (Including short term contract)/Transfer:
Officers under the Central/State Governments/UTs/Recognised Research Institutions/Public Sector Undertakings/Semi-Government/Autonomous Organisation:
(i) Holding analogous posts on a regular basis; or
(ii) With 3 years regular service in posts in the scale of Rs. 2000-3200/3500 or equivalent; or
(iii) With 7 years regular service in posts in the scale of Rs. 1640-2900 or equivalent and Possessing the educational qualifications and the experience prescribed for direct recruits under column 8.
(The departmental officers in the feeder category who are in the direct line of promotion shall not be eligible for consideration for appointment on deputation. Similarly, deputationists shall not be eligible for consideration for appointment by promotion.)
(Period of deputation/contract including period of deputation/contract in another ex-cadre post held immediately preceding this appointment in the same or some other organization/department of the Central Government shall ordinarily not exceed 3 years. The maximum age limit for appointment by transfer on deputation (including short term contract)/transfer shall be not exceeding 56 years as on the closing date of receipt of applications.)
Note: Only officers of Central/State Governments/UTs are eligible for being considered for appointment on transfer basis.
13. There is no dispute that the applicant was permitted to work as Senior Scientific Officer of Government of NCT but when the question of his regularization came before the UPSC, they were of the view that the applicant could not be regularized because, as he was not holding the scale of pay of Rs. 1640-2900 or equivalent before joining as Senior Scientific Officer. Therefore, from the above submission, it is to be construed as to whether the words `and/or equivalent’ would convey the meaning of posts or the scale of pay. Different slabs in the scales of pay are being allowed by different State Governments. At some places, salary given by the State Governments is slightly higher than the others. Therefore, keeping this in mind, let us advert to the situation as to what post the applicant was holding and what were his nature of duties and responsibilities prior to assuming functions as Senior Scientific Officer on deputation under NCT. In this regard, the letter dated 19.4.2005 written by Director-cum-Chief Forensic Scientist to the Director, FSL, UP, Lucknow is very significant.
He has stated that the posts of SSA in FSL, UP in the scale of pay of Rs. 1600-2660 are analogous to Senior Scientific Assistant post in CFSLs in the scale of pay Rs. 1640-2900. They are having same duties and responsibilities as their counter parts in CFSLs. Their duties are enumerated as follows:
Forensic Analysis of exhibits
In charge of high tech. Instruments of the laboratory.
To attend crime scene and help the IOs in collection of clue materials
Attending Courts from time to time to dispose evidences
Impart assistant to seniors in R&D work
To maintain exhibits in the laboratory
Impart assistant to senior officers when police, judiciary and forensic experts visit the laboratory.
14. During the pendency of the Writ Petition before the Hon
ble High Court, it seems that the Government of NCT relieved the applicant of his duties as a reason whereof, he once again joined the FSL, UP, Lucknow. However, the Honble High Court in their order has directed to keep one post vacant which shall abide by the result of this application.
15. Mr. O.P. Gehlaut, learned Counsel for the applicant relied upon the Hon’ble Supreme Courts Judgment in the case of Sub-Inspector Rooplal and Anr. v. LT. Governor Through Chief Secretary, Delhi and Ors. . In the aforesaid case, the Honble Supreme Court has held:
17. In law, it is necessary that if the previous service of a transferred official is to be counted for seniority in the transferred post then the two posts should be equivalent. One of the objections raised by the respondents in this case as well as in the earlier case of Antony Mathew is that the post of Sub-Inspector in BSF is not equivalent to the post of Sub-Inspector (Executive) in the Delhi Police. This argument is solely based on the fact that the pay scales of the two posts are not equal. Though the original Bench of the Tribunal rejected this argument of the respondent, which was confirmed at the stage of SLP by this Court, this argument found favour with the subsequent Bench of the same Tribunal whose order is in appeal before us in these cases. Hence, we will proceed to deal with this argument now. Equivalency of two posts is not judged by the sole fact of equal pay While determining the equation of two posts many factors other than pay will have to be taken into consideration, like the nature of duties, responsibilities minimum qualification etc. It is so held by this Court as far back as in the year 1968 in the case of Union of India v. P.K. Roy . In the said judgement, this Court accepted the factors laid down by the Committee of Chief Secretaries which was constituted for settling the disputes regarding equation of posts arising out of the States Reorganisation Act, 1956. These four factors are: (i) the nature and duties of a post; (ii) the responsibilities and powers exercised by the officer holding a post, the extent of territorial or other charge held or responsibilities discharged; (iii) the minimum qualifications, if any, prescribed for recruitment to the post and (iv) the salary of the post. It is seen that the salary of a post for the purpose of finding out the equivalency of posts is the last of the criteria. If the earlier three criteria mentioned above are fulfilled then the fact that the salaries of the two posts are different would not in any way make the post not equivalent. In the instant case, it is not the case of the respondents that the first three criteria mentioned hereinabove are in any manner different between the two posts concerned. Therefore, it should be held that the view taken by the Tribunal in the impugned order that the two posts of Sub-Inspector in BSF and Sub-Inspector (Executive) in the Delhi Police are not equivalent merely on the ground that the two posts did not carry the same pay scale, is necessarily to be rejected. We are further supported in this view of ours by another judgement of this Court in the case of Vice Chancellor, L.N. Mithila University v. Dayanand Jha wherein at SCC para 8 of the Judgement, this Court held: (SCC pp.10 & 11).
Learned Counsel for the respondent is therefore right in contending that equivalence of the pay scale is not the only factor in judging whether the post of Principal and that of Reader are equivalent posts. We are inclined to agree with him that the real criterion to adopt is whether they could be regarded of equal status and responsibility…. The true criterion for equivalence is the status and the nature and responsibility of the duties attached to the two posts.
16. Mrs. B Rana as well as Mr. Ajesh Luthra, learned Counsel appearing for the respondents have submitted that S.I. Roop Lals case is not applicable to the present factual background. The question for consideration in the cited case was as to whether the previous service of the incumbent could be counted for seniority or not. Here, the question of eligibility being prime consideration, therefore, the rationale of that Judgement could not be applicable to the present case. While seriously pondering over their submissions, we have gone through the observations of the Honble Supreme Court. The Apex Court in the aforesaid judgement have considered with regard to `equivalence of the two posts. The salary of those two posts may be slightly different or not exactly identical but that by itself will not construe that the two posts held by the incumbents were different. While determining the equivalent posts, it is to be noticed (i) the nature and duties of a post; (ii) the responsibilities and powers exercised by the officer holding a post, the extent of territorial or other charge held or responsibilities discharged; (iii) the minimum qualifications, if any, prescribed for recruitment to the post and (iv) the salary of the post. The salary of a post for the purpose of finding out the equivalency of posts is the last criteria. If the earlier three criterias are fulfilled, even though the salary may not be identical, still it can be held as `equivalent’ post. In the instant case, after carefully considering the contentions, we found that the responsibilities and exercise of power by the applicant is the same and identical with the responsibilities of the post which he is holding at FSL, UP, Lucknow. The nature of duties and responsibilities is also same and so also the qualifications. Three of the critaries having been fulfilled, the salary even though may not be identical and slightly variant, it cannot be construed that both the posts/scales are not identical.
17. There is no dispute that one post is available to be filled up by transfer on deputation. In view of the above discussion, the applicant seems to have fulfilled all the requirements for being considered to the post of Senior Scientific Officer. Accordingly, whenever there would be an advertisement for filling up the posts on transfer/deputation, he may submit an application and the UPSC can consider his suitability in accordance with the observations stated above.
18. With the above observations, the application succeeds.