Central Administrative Tribunal - Mumbai
Jayesh C Sarang vs M/O Defence on 2 January, 2025
1 OA No.272/2020
Central Administrative Tribunal
Mumbai Bench: Mumbai
OA No.272/2020
Order reserved on: 04.12.2024
Order pronounced on: 02.01.2025
Hon'ble Mr. Justice M.G.Sewlikar, Member (J)
Hon'ble Mr. Santosh Mehra, Member (A)
1. Jayesh C. Sarang,
P.No.7291N,
Residing at B-27,
Indiranagar, Salt-Pan Road,
Wadala (East),
Mumbai-400 037.
Email ID: [email protected]
2. Mithilesh Kumar Saw
P.No.70001A,
Residing at Flat No.302,
Om Durvankar Building,
Veer Savarkar Marg,
Narangi Phata, Virar (East),
Vasai-401303, Dist.-Palghar.
Email ID: [email protected]
3. Sudip P.Hazra
P.No.72985B,
Residing at 8/199,
Naval Civilian Housing Colony,
L.B.S.Road, Kanjur Marg (West),
Mumbai-400 078.
Email ID:[email protected]
All the Applicants are working as
Engine Driver in the Office of
2 OA No.272/2020
Commodore of Yard (Resp. No.3),
C.No.69, Boat Pool, S.B.SRoad,
Lion Gate, Naval Dockyard,
Mumbai-400 023.
....Applicants
(By Advocate: Mr. Anurag R. Saxena)
Versus
1. The Union of India through
The Secretary to Govt. of India,
Ministry of Defence, South Block,
New Delhi-110001.
2. The Admiral Superintendent,
Naval Dockyard,
Shaheed Bhagat Singh Road,
Mumbai-400 023.
3. Commodore of Yard
C.No.69, Boat Pool, S.B.S.Road,
Lion Gate, Naval Dockyard,
Mumbai-400 023.
4. Senior Manager (PRP),
Naval Dockyard,
Mumbai-400 023.
5. G.V.Koyande, P.No.72753E,
Working as Engine Driver-II,
In the office of: Commodore of Yard
C.No.69, Boat Pool, S.B.SRoad,
Lion Gate, Naval Dockyard,
Mumbai-400 023.
6. A.B.Koyande, P.No.72624E
Working as Engine Driver-II,
In the office of: Commodore of Yard
C.No.69, Boat Pool, S.B.SRoad,
Lion Gate, Naval Dockyard,
Mumbai-400 023.
3 OA No.272/2020
7. D.S.Koli, P.No.72800N
Working as Engine Driver-II,
In the office of: Commodore of Yard
C.No.69, Boat Pool, S.B.SRoad,
Lion Gate, Naval Dockyard,
Mumbai-400 023.
8. K.N.Choulkar, P.No.72809H
Working as Engine Driver-II,
In the office of: Commodore of Yard
C.No.69, Boat Pool, S.B.SRoad,
Lion Gate, Naval Dockyard,
Mumbai-400 023.
9. J.N.Wagle, P.No.72843H
Working as Engine Driver-II,
In the office of: Commodore of Yard
C.No.69, Boat Pool, S.B.SRoad,
Lion Gate, Naval Dockyard,
Mumbai-400 023.
10. K.D.Kokate, P.No.72844L
Working as Engine Driver-II,
In the office of: Commodore of Yard
C.No.69, Boat Pool, S.B.SRoad,
Lion Gate, Naval Dockyard,
Mumbai-400 023.
11. V.R.Singh, P.No.72991N
Working as Engine Driver-II,
In the office of: Commodore of Yard
C.No.69, Boat Pool, S.B.SRoad,
Lion Gate, Naval Dockyard,
Mumbai-400 023.
(Respondents Nos.5 to 11 are private respondents in their
representative capacity to be served through Respondent
No.3)
... Respondents
(By Advocate: Mr. N.K.Rajpurohit)
4 OA No.272/2020
ORDER
By Justice M.G.Sewlikar, Member (J) Applicant is seeking the quashing of order of promotion dated 21st March, 2020 in favour of respondents No.5 to 11 to the post of Engine Driver-II and direction to the respondents to hold review DPC and to grant promotion to the applicants w.e.f. 1st January, 2020 with all consequential benefits.
2. Facts leading to this application are that the applicants are working as Engine Drivers. For promotion to the post of Engine Driver-II, the essential qualifications in terms of integrated Headquarters, Ministry of Defence (Navy) Group-C Non-Industrial Rules (Boats Crew) posts Recruitment Rules, 2017 (RRs of 2017) are as under:
(a) 10th pass from a recognized institute or Board
(b) 1st Class Engine Driver Certificate granted under Inland Vessels Act, 1917 or Merchant Shipping Act, 1958
(c) Two years experience as Syrang or Tindal on a registered vessel of over 400 British Horse Power.
3. In terms of RRs of 2017, feeder cadre is as under: 5 OA No.272/2020
"Promotion: Engine Driver in Level-4 (Rs.25500-81100) in the Pay-Matrix with five years regular service in the grade.
Note 1: Where juniors who have completed their qualifying or eligibility service are being considered for promotion, their seniors would also be considered provided they are not short of the requisite qualifying or eligibility service by more than half of such qualifying or eligibility service or two years whichever is less and have successfully completed their probation period for promotion to the next higher grade along with their juniors who have already completed such qualifying or eligibility service.
Note 2:- The eligibility or qualifying service for the existing officials holding the post of Engine Driver/Syrang as on the date of coming into force of these rules shall continue to be three years."
4. According to the applicants, they fall under criteria of Note-2, i.e., the eligibility or qualifying service for the existing officials holding the post of Engine Driver/Syrang as on the date of coming into force of these rules shall continue to be three years. They contend that the applicants are in pay matrix of Rs.25500-81100 Level-4 as on 30th April, 2016 and they have completed three years of service in the cadre of Engine Driver as on 30th April, 2019. They further contend that all the applicants have passed 10th standard and were qualified to be considered for promotion to the post of Engine Driver-II. The crucial date for promotion to the post of Engine Driver-II was 1st January, 2020. The private respondents No.5 to 11 6 OA No.272/2020 though senior to the applicants did not possess Certificate of Competency (CoC) as on 1st January, 2020. Still in the DPC meeting dated 31st December, 2019, the candidature of private respondents No.5 to 11 was considered though they had not been issued CoC by Maharashtra Maritime Board (MMB).
5. On learning this, the applicants made representation on 9th January, 2020 to Senior Manager (PRP), PM Department, Naval Dockyard, Mumbai - respondent No.4 raising objection to the said panel for promotion for the vacancy year 2020. Since this representation was not decided, they preferred OA No.252/2020 in which respondents were directed to decide the representation in a time bound manner. On 4th February, 2020, the Board of Examination for Seafarers Trust, Navi Mumbai issued notice to the successful candidates to pay certification fees, and thereafter, CoC would be issued.
6. On 14th February, 2020, the respondents rejected the representation of the applicants, and therefore, the applicants have filed this OA. It is the contention of the 7 OA No.272/2020 applicants that private respondents No.5 to 11 were not granted CoC as on 31st December, 2019, i.e., the date on which DPC was held. They further contend that respondents No.6 to 10 did not pass 10th standard examination which is a primary requirement for being considered for promotion to the post of Engine Driver-II. They, therefore, seek the following relief:
"8.1 This Hon'ble Tribunal may be pleased to call for the record which led to the passing of the impugned promotion order dated 21/03/2020 (Annexure A-1) and after examining its proprietary, legality and constitutional validity be pleased to quash and set aside the promotions of Respondents Nos.5 to 11 to the posts of Engineer Driver-II.
8.2 This Hon'ble Tribunal may be pleased to hold and declare that the impugned Promotions to the post of Engine Driver-II dated 21/03/2020 are de hors the rules and therefore cannot be sustained.
8.3 This Hon'ble Tribunal may be pleased to order and direct the respondents to hold a Review DPC which led to the issuance of the Promotion Order dated 21/03/2020 and to grant promotion to the "Eligible candidates"
(Applicants) with effect from 01/01/2020 with all consequential benefits.
8.4 To award the costs and to pass any further order/s as this Hon'ble Tribunal may deem fit and proper in conspectus of facts and nature of the case."
7. Respondents filed their reply. They contend that the promotion of the respondents to the post of Engine Driver- II is strictly in consonance with the rules. They contend 8 OA No.272/2020 that the CoC was passed on 26th December, 2019 is valid from 26th December, 2019 to 25th December, 2024. Crucial date of eligibility of officials to be considered for promotion was 1st January, 2020. Home Department (Port & Transport), MMB letter dated 1st January, 2020 states that the result declared by MMB may be considered for grant of departmental promotion. Accordingly, promotion order was issued on 21st March, 2020. They further contend that private respondents had undergone requisite examination conducted by MMB in December 2019 for the first class Engine Driver certificate granted under Inland Vessels Act, 1917 or Merchant Shipping Act, 1958 also known as Certificate of Competency (CoC) conducted by the Board of Examinations for Seafarers Trust (BES), MMB, Mumbai. The final result was uploaded on official website of BES on 26th December, 2019. From that result, it revealed that the private respondents passed first class Engine Driver examination to fulfil the eligibility criteria for consideration by the DPC-2020 as per SRO No.39/2017 for promotion to the grade of Engine Driver-II. The other criterion for promotion is 10th standard pass and three years regular service in the grade of Engine Driver. Since 9 OA No.272/2020 the private respondents had passed the examination for CoC, the DPC considered them eligible for promotion. The promotion orders were issued only after receipt of the CoC of private respondent No.7. Therefore, the contention of the applicants that the said promotions were effected without CoC is factually incorrect. The DPC was, therefore, conducted in a fair, just and non-discriminatory manner.
8. The competent authority for grant of CoC, i.e. MMB, had also intimated that the distribution of CoC for 'Pass' candidates was in process, and therefore, result declared by MMB may be considered for departmental promotion. They contend that with regard to the Matric qualification essential for promotion to the post of Engine Driver-II, an extensive training was conducted for all employees working with respondent No.2, i.e. Naval Dockyard, Mumbai, who did not possess Matric qualification in accordance with guidelines promulgated vide Integrated Headquarters, Ministry of Defence. A syllabus was prepared and training to all yard employees '2214', who were not in possession of Matric qualification was conducted at the office of 10 OA No.272/2020 respondent No.2 to make them equivalent to 10th pass or Matric. Accordingly, private respondents No.6, 8 & 10 possess the requisite essential qualification equivalent to 10th standard pass. They contend that as per DoP&T OM dated 28th April, 2014, the DPC enjoys full discretion to devise their own method and procedure for objective assessment of the suitability of candidates who are to be considered by them, including those officers on whom penalty has been imposed. They contend that the DPC was conducted in fair and proper manner, and therefore, the OA deserves to be dismissed.
9. Applicant filed the rejoinder. The applicant contend that no list of personnel along with consignment number for dispatch of CoC of first Class Engine Driver for private respondents was published until 27th December, 2019. Such consignment number can only be published when CoC is issued. They have annexed copy of the consignment number at Annexure A-12. They further contend that CoC was issued in favour of private respondents and comes into force from 16th January, 2020. Thus, it is proved from the CoC that the private respondents can act as first Class 11 OA No.272/2020 Engine Driver only from 16th January, 2020 and not from 26th December, 2019. The private respondents were not authorized to sail the vessel from 16th January, 2020, and therefore, they were not liable to be considered for DPC which was held on 31st December, 2019. They further contend that the panel for promotion was prepared on 31st December, 2019 and the letter issued by MMB is dated 1st January, 2020 which was received by the respondents on 8th January, 2020 vide Annexure A-14. This shows that respondents had illegally prepared the panel for promotion of the successful candidates. Applicants contend that the respondents have not produced any document in support of their contention that respondents No.6, 8 & 10 have completed any course which makes them equivalent to matric qualification.
10. Respondents filed reply to rejoinder. No new point is brought on record in reply to rejoinder.
11. We have heard the learned counsel for the applicant and learned counsel for the respondents.
12 OA No.272/2020
12. Learned counsel for the applicant submitted that in terms of Section 21 of the Inland Vessels Act, 1917 and Section 76 & 78 of Merchant Shipping Act, 1958, CoC is granted. He submitted that without this certificate no one can act as a first class master, second class master or Syrang or as an engineer, first class engine driver or second class engine driver, as the case may be, on board an inland mechanically propelled vessel. For promotion to the post of Engine Driver, the qualification, as prescribed in the rules for Engine Driver-II is first class Engine Driver certificate, i.e. COC, granted under Inland Vessels Act, 1917 and Merchant Shipping Act, 1958. The crucial date for eligibility was 1st January, 2020. The private respondents did not possess the CoC on 1st January, 2020, and therefore, they were not eligible for promotion.
13. Learned counsel for respondents submitted that result of the examination for grant of CoC was declared on 26th December, 2019. The private respondents had cleared the examination, and therefore, they became eligible for promotion to the post of Engine Driver-II. He submitted that the DPC is competent to devise its own procedure and 13 OA No.272/2020 method for objective assessment of the suitability and merit of the candidates being considered by it. He submitted that evaluation made as per the Expert Committee should not be easily interfered with by the Court. The MMB had communicated to the respondents that the process of issuing certificate was in progress, and therefore, the DPC deemed it appropriate to consider private respondents to be eligible for promotion to the post of Engine Driver-II. He submitted that the minutes of DPC show that in the year 2016-17, 2017-18 and 2018-19, the DPC had followed this procedure, and therefore, this is perfectly in accordance with the rules, and therefore, no interference from this Tribunal is warranted.
14. Learned counsel for the applicants in reply submitted that the DPC completely flouted the rules. He invited our attention to the letter dated 1st January, 2020 by which the respondents were informed that issuance of CoC to the successful candidates was in progress. He submitted that this letter bears the date 1st January, 2020 and it was received by the respondents on 8th January, 2020 and minutes of the DPC are of 31st December, 2019. He 14 OA No.272/2020 submitted that these dates clearly show malafides on the part of DPC.
15. We have given thoughtful consideration to the submissions made by the learned counsel on both the sides. We have gone through the OA, reply, rejoinder and sur-rejoinder. Learned counsel on both the sides took us through the entire pleadings.
16. In terms of RRs of 2017, the essential qualifications for promotion to the post of Engine Driver-II as per SRO No.39/2017 are as under:
(a) 10th pass from a recognized institute or Board
(b) 1st Class Engine Driver Certificate granted under Inland Vessels Act, 1917 or Merchant Shipping Act, 1958
(c) Two years experience as Syrang or Tindal on a registered vessel of over 400 British Horse Power.
17. Rule 5 of the RRs of 2017 gives power of relaxation in any of the provisions of these rules with respect to any class or category of persons to the Central Government. 15 OA No.272/2020
18. The respondents could not point out any OM or circular or any notification indicating that the declaration of results is to be treated as eligibility for promotion to the post of Engine Driver-II. The respondents in their reply have stated that the private respondents cleared the written/oral examination conducted in December, 2019 for the first class Engine Driver certificate granted under Inland Vessels Act, 1917 or Merchant Shipping Act, 1958 also known as Certificate of Competency (CoC). They further allege that thereafter their final result was uploaded on the official website of BES on 26th December, 2019. Accordingly, the private respondents passed the first class Engine Driver examination to fulfil the eligibility criteria for consideration by the DPC-2020 as per SRO No.39/2017 for promotion to the grade of Engine Driver-II.
19. We have gone through the entire SRO No.39/2017. We did not find any provision to the effect that passing of the examination for first class Engine Driver certificate, i.e. CoC is the eligibility criteria. The eligibility criteria is the date of grant of CoC. Thus, the DPC has determined the eligibility criteria in violation of the RRs of 2017. As 16 OA No.272/2020 indicated earlier, there is nothing on record to show that the criteria regarding eligibility was relaxed by the Central Government. We have gone through the certificate issued by the MMB, which is annexed at Annexure R-3. It shows that this certificate has been granted in favour of private respondents on 16th January, 2020. This goes to show that they were permitted to drive the vessel only after 16th day of January, 2020. Therefore, when Engine Driver-II is permitted to drive the vessel only on receipt of certificate, he cannot be treated to be eligible merely on the date of passing of the examination. The provision of Section 21 shows that mere passing of the examination is not a criteria for determining the eligibility. Section 21 of the Indian Vessels Act, 1917 reads as under:
"21. Grant of masters', serangs', engineers', and engine- drivers' certificates of competency.--
(1) The State Government or such officer as it may, by notification in the Official Gazette, appoint in this behalf, shall grant to every person who is reported by the examiners to possess the prescribed qualifications, a certificate of competency to the effect that he is competent to act as a first-class master, second-class master or scrang, or as an engineer, first-class engine driver or second-class engine-driver, as the case may be, on board an inland 1 [mechanically propelled vessel]:
Provided nevertheless that, before granting a certificate of competency under this Act, the authority empowered to grant such certificate may, if it considers the report of the examiners regarding any applicant for such certificate to be defective, or has reason to believe that such report has 17 OA No.272/2020 been unduly made, require a further examination or a re
-examination of the applicant.
(2) Every certificate granted under this section shall be in the prescribed form."
20. This proviso shows that simply on passing the examination, the certificate cannot be granted. Proviso shows that before grant of CoC the authority empowered to grant such certificate has the power to require such examination or re-examination of the applicant whose certificate is found to be defective or has reason to believe that such report has been unduly made. This shows that after passing the examination, these two aspects have to be considered by the authority empowered to grant certificate in appropriate cases and thereafter such certificate is granted. Therefore, mere passing of the examination cannot be treated as an eligibility criteria. The makers of the RRs of 2017 have thoughtfully considered the eligibility criteria to grant CoC. The certificate in some cases will be granted only after further examination or re-examination of the candidate. In these circumstances, it was not proper on the part of the DPC to treat the private respondents as eligible for promotion to the post of Engine Driver-II. 18 OA No.272/2020
21. The case of private respondents No.6, 8 & 10 is even worse. These respondents admittedly have not passed the 10th standard. The respondents have given following justification:
"With regards to the matric qualification essential for the said promotion, an extensive Training was conducted to all employee working at respondent no.2 i.e. Naval dockyard, Mumbai who were not possessing Matric qualification in accordance with guideline promulgated vide Integrated Headquarters Ministry of Defence (IHQ MoD), Navy vide its letter No.CP/Trg/7360/Gp D dated 27/02/2009. A syllabus was prepared and training to all yard employees '2214' who were not in possession of Matric qualification was conducted at office of the respondent no.2 to make them equivalent to 10th pass or Matric. Accordingly, private respondent no.6, 8 and 10 are in possession of the requisite essential qualification equivalent to 10th pass and 1st class Engine Driver pass to become eligible for consideration by DPC-2020. Therefore the alleged contention of the applicants that the action of the respondents in empanelling the private respondent no.5 to 11 is in infraction of rules is precisely incorrect."
22. The respondents have not produced any rule or regulation to show that the candidates who have not passed the 10th standard, they can undergo a course which is equivalent to 10th standard. Even the respondents have not produced any certificate to show that private respondents no.6, 8 & 10 had undergone such a course. Even if there is such a course, what sanctity it has as against the RRs of 2017 which require 10th standard pass 19 OA No.272/2020 from a recognized institute or board. In the SRO there is no such provision indicating that those candidates who have not passed 10th standard can undergo a course devised by the respondents to make them equivalent to 10th standard examination. The RRs of 2017 do not permit adoption of such a course. In view of the above, it is clear that the respondents no.6, 8 & 10 lack essential qualification of 10th standard pass. Therefore, they were not eligible for promotion to the post of Engine Driver. No doubt, the DPC enjoys full discretion to devise its method and procedure for objective assessment of suitability and merit of the candidates being considered by it. It can devise its own method for determining suitability but not eligibility. Eligibility has to be determined on the basis of rules and not on the discretion of the DPC.
23. It was argued on behalf of the respondents that the DPC has been following this practice since 2016-17, and therefore, for the promotion in question DPC followed this procedure. We find no substance in this contention. Any practice de hors rules is illegal. It was argued on behalf of the respondents that though the respondents No.5 to 11 20 OA No.272/2020 were considered eligible, but promotion was granted only after issuance of CoC. This submission instead of helping the respondents goes against them. When promotions were given after grant of CoC, clearly goes to show that the respondents were aware that the eligibility criteria is grant of CoC. Otherwise, there was no reason for them to wait till the grant of CoC.
24. It was further argued that the letter dated 1st January, 2020 shows that the MMB communicated to the respondents that the grant of CoC is in process. This letter was received by the respondents on 8th January, 2020 and DPC was held on 31st December, 2019. This shows that on the date of holding DPC, DPC was not having any document to show that the respondents No.5 to 11 were granted CoC. Therefore, this submission cannot be considered.
25. In this view of the matter, the promotion of private respondents no.5 to 11 cannot be sustained. OA is allowed. The promotion order dated 21 st March, 2020 to the extent of private respondents No.5 to 11 is quashed and set aside. Respondents are directed to hold a review 21 OA No.272/2020 DPC and consider to grant promotion to the applicants. If the applicants are found fit for promotion, they shall be entitled to promotion w.e.f. 1st January, 2020 with all consequential benefits. No order as to costs.
26. Pending MAs, if any, stand disposed of.
(Santosh Mehra) (M.G.Sewlikar) Member (A) Member (J) 'SD'