Central Administrative Tribunal - Ernakulam
Nishant K vs M/O Defence on 7 November, 2022
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00850/2016
Monday, this the 7th day of November 2022
CORAM:
HON'BLE Mr.JUSTICE SUNIL THOMAS, JUDICIAL MEMBER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER
1. Nishant.K.,
S/o.Krishnan,
MES/604480, Chowkidar,
O/o.the Commander Works Engineer,
Military Engineer Services,
Ezhimala Naval Academy (P.O.),
Ezhimala - 670 310.
2. Ranjith.K.,
S/o.Sasidharan,
MES/610027, Chowkidar,
O/o.the Garrison Engineer (P) No.II,
Military Engineer Services,
Ezhimala Naval Academy (P.O.),
Ezhimala - 670 310.
3. Ajaya Kumar.M.K.,
S/o.M.K.Krishnan Paniker,
MES/610031, Chowkidar,
O/o.the Garrison Engineer (Maintenance),
Military Engineer Services,
Ezhimala Naval Academy (P.O.),
Ezhimala - 670 310.
4. Dhanaraj.P.,
S/o.Balakrishnan,
MES/610033, Chowkidar,
O/o.the Garrison Engineer (Maintenance),
Military Engineer Services,
Ezhimala Naval Academy (P.O.),
Ezhimala - 670 310.
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5. Muhammad Khabeer N.P.,
S/o.Aboobacker,
MES/610043, Safaiwala,
O/o.the Commander Works Engineer,
Military Engineer Services,
Ezhimala Naval Academy (P.O.),
Ezhimala - 670 310. ...Applicants
(By Advocate Mr.P.K.Madhusoodanan)
versus
1. The Chief Engineer, Head Quarters,
Southern Command, Pune - 411 001.
2. The Engineer-in-Chief,
Army Head Quarters,
Kashmir House, D.H.Q.(P.O.),
New Delhi - 110 011.
3. The Commander Works Engineer,
Military Engineer Services,
Ezhimala Naval Academy (P.O.),
Ezhimala, Kannur - 670 310.
4. The Commander Works Engineer (NW),
Military Engineer Services,
Kataribagh, Naval Base (P.O.),
Kochi - 682 004.
5. The Chief Engineer (NW),
Military Engineer Services,
Kataribagh, Naval Base (P.O.),
Kochi - 682 004.
6. Union of India represented by its Secretary,
Ministry of Defence, South Block,
New Delhi - 110 001. ...Respondents
(By Advocate Mrs.O.M.Shalina)
This application having been heard on 19 th October 2022, the
Tribunal on 7th November 2022 delivered the following :
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ORDER
Per : HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER The four applicants in this O.A are working as Chowkidars/Safaiwalas in the Military Engineer Services (MES) at the Ezhimala Naval Academy. They were appointed as Chowkidars/Safaiwalas between the years 2005-2008 in the pay scale of Rs.2550-3200/-. They are thus Group D employees in the MES who they submit are being denied consideration for promotion to the post of Mate (Semi Skilled)(Mate-[SS]). They have all passed the SSLC Examination and claim that they are eligible and qualified for promotion in Industrial line for the post of Mate (SS) as per the SRO 169 produced at Annexure A-1. It is submitted that Chowkidars/Safaiwalas are the feeder categories for promotion to Mate (SS) as per the SRO 169.
2. After the 6th Central Pay Commission (CPC) recommendations were accepted, the 6th respondent (Secretary, Ministry of Defence) had issued the letter produced at Annexure A-2 dated 08.02.2011. As per this letter it had been ordered that the Unskilled and Semi Skilled workers in the MES have to be merged together and placed in PB-1 (Rs.5200-20200/-) with a Grade Pay of Rs.1800/-. The orders were ordered to be implemented with effect from 09.09.2008, based on options given by the Group D employees. Accordingly, it is submitted that the applicants had given their options for the industrial line of promotion granting permission for merging and -4- redesignating their posts as Mate (SS). After this the 2 nd respondent, the Engineer-in-Chief, Army Head Quarters, New Delhi, issued Annexure A-3 dated 13.10.2011, wherein, it was clarified at paragraph 4 that Chowkidars and Safaiwalas who had opted for their promotion to Mate (SS) tradesman in the Industrial line are to be considered as Unskilled workers for the purpose of their promotion to Mate/Tradesman along with other Unskilled workers such as Mazdoors. Accordingly, such Chowkidars and Safaiwalas who had opted for their promotion in Industrial line were also to be merged with corresponding semi-skilled trades with effect from 09.09.2008 and should be placed junior to Semi Skilled workers in service as on 09.09.2008 in the order of their seniority. This instruction was sent to all the lower formations for compliance vide Annexure A-4 dated 15.10.2011.
3. Subsequent to this it is submitted that the respondents issued the orders dated 31.10.2011 produced at Annexure A-5 by which they were all redesignated as Mate (Semi Skilled) with effect from 09.09.2008. Orders in respect of 1st applicant and 5th applicant are produced in Annexure A-5 in which it is shown that the 1 st applicant, a Chowkidar was redesignated as Mate (Semi Skilled) and the 5 th applicant, a Safaiwala, was redesignated as Mate (Semi Skilled) with effect from 09.09.2008. After these orders were issued, it appears that the benefits which they were entitled to as Mate (Semi Skilled) were not paid to the applicants. The respondents did not implement the Annexure A-5 orders but seem to have kept it in abeyance. As this was -5- happening across the board, some similarly affected Chowkidars/Safaiwalas approached this Tribunal to challenge the order of abeyance in O.A.No.109/2012 as these orders had kept aside the merger of Chowkidars/Safaiwalas with the unskilled/semi-skilled workers, leaving only Mazdoors who were juniors to the applicants in the seniority list unaffected. The applicants, therein, not only prayed for a declaratory order that the Chowkidars/Safaiwalas like them were also entitled to be considered and merged/redesignated as Mate along with other like Mazdoors, but also to settle their seniority vis-a-vis Mazdoors and to give them whatever arrears of pay they were entitled to as a result. This Tribunal after considering the matter in detail, passed final orders as follows (produced at Annexure A-6) :
"6. ............The action taken by the respondents show that these letters travel in a direction reverse to the policy of the Government to integrate the cadres consequent to VI th CPC. They segregate the Chowkidars/Safaiwalas from the Mazdoors and nullify their promotion prospects inspite of the integrated seniority list and inspite of being in the feeder cadres and qualified for promotion to the post of Mate as per the Recruitment Rules. This is patent discrimination against the Chowkidars and Safaiwalas which is further aggravated by the division of Chowkidars and Safaiwalas by imposing the fortuitous cut off date of 08.02.2011 to protect those who have already been promoted as Mate. Those Chowkidars and Safaiwalas who could not be promoted before 08.02.2011 are left in the lurch. When the Mazdoors who are juniors to the applicants are made Mates, denial of the same to the applicants who are fully qualified for promotion as Mate is a clear violation of settled service conditions and the principle of equality and equality of opportunity enshrined in Articles 14 and 16 of the Constitution of India. The author of Annexure A-12 who requested to keep in abeyance the merger -6- of Chowkidar and Safaiwala with Mate (Semi Skilled) till further orders perhaps, did not realise what it does to the applicants who are subjected to discrimination, denial of natural justice and denial of consideration for promotion. Hence, in the interest of justice, the O.A is allowed as under.
7. Annexures A-12 dated 30.11.2011, A-13 dated 19.12.2011 and A-14 dated 19.12.2011 are quashed. The respondents are directed to grant all the benefits of the order at Annexure A-3 dated 08.02.2011 forthwith as well as to consider them for promotion to skilled posts keeping in mind their seniority in Annexure A-2 seniority list."
Accordingly, in follow up of the above orders, it appears that the respondents took action to implement the same by granting the promotion to the applicants therein to the Semi Skilled as well as Skilled grades.
4. It is the submission of the applicants that they are similarly situated to the applicants in Annexure A-6 O.A.No.109/2012 dated 12.12.2012. They had, therefore, requested the respondents to extend the benefits of the final order in Annexure A-6 to them by treating all similarly situated Chowkidars/Safaiwalas alike. It also appears that, initially, some steps were taken by the respondents to do this as, in April, 2013, a proposal was forwarded to the 4th respondent, the Commander Works Engineer (NW), MES, Kochi, including the names of the applicants in the list of personnel who would be permitted to appear in the trade tests to be held between 18.04.2013 to 20.04.2013. The applicants submit that they were also issued identification certificate and a temporary duty move to attend the aforementioned trade tests. However, when they reported for the trade test -7- on 18.04.2013, the officer conducting the said test, working under the 4 th respondent, did not allow them to participate but detained them till the time of the test was over and then sent them back. At the same time, without any clear explanation for the same, two among the personnel sent for the trade test from Ezhimala ( Shri.Nalinakshnan.P.P and Shri.K.Ravi) were allowed to appear for the trade test for Mate (FGM) and Mate (Carpenter) apparently unnoticed by the testing authorities who had prevented the applicants from attending the same. These two personnel were later declared passed along with others on 05.09.2014 as per the Annexure A-13 Trade Test results for promotion of Chowkidars/Safaiwala to the Skilled category.
5. Aggrieved by the above apparently discriminatory developments, it appears that the applicants approached the 3 rd respondent, the Commander Works Engineer (CWE), MES, Ezhimala, Kannur with an application addressed to the 5th respondent, the Chief Engineer (NW), MES, Kochi, requesting him to look into the matter and to take necessary steps to conduct the trade test at the earliest for consideration of their promotion and to protect their career prospects. These representations have been produced at Annexure A-14 and Annexure A-15 (as examples). However, this did not seem to have much effect on further developments in the matter, inspite of some internal correspondence among the officials like the 1 st respondent and 2nd respondent seeking clarification in respect of the cases where trade test were not conducted by CWE for Chowkidars and -8- Safaiwalas to Mate (Semi Skilled). This shows some issues were raised like whether trade tests can be conducted for all Chowkidars and Safaiwalas who were eligible up to 07.07.2013 (the date up till the old Recruitment Rules under SRO 169 were still applicable). However, there were no final decision taken on all these correspondences and the applicants submit that it is still not clear to them and other similarly placed Chowkidars/Safaiwalas, as to why they alone were not allowed to take part in the trade test on 18.04.2013 and sent back, whereas, some others were allowed to participate in the same and were later also granted promotions. In fact, the applicants made some further representations, produced at Annexure A-17 to Annexure A-21 to the Respondent Nos.1&2, on this issue. By then it appears that there were even further promotions from those who were allowed to have appeared in the trade test to higher posts (Skilled). These representations have also fallen on deaf ears.
6. The applicants submit that through their efforts, the only information as to why their placement in the industrial category and promotion to the Mate level was cancelled after being first allowed was done appears in the context of a letter written to a trade union by the 2 nd respondent produced at Annexure A-22 and Annexure A-23. As per this letter it is accepted by the respondents that there had been a practice in the MES to conduct trade test for promotion of Chowkidars/Safaiwalas to Tradesmen Mate at Commander Works Engineer (CWE) level as per the earlier SRO 169/2004. This SRO -9- 169/2004, however, revised and superseded by SRO 48/2013 and there was from that time no scope for Chowkidars/Safaiwalas to enter into the industrial category. The letter further goes on to state that, being a non- industrial category, the Chowkidar/Safaiwalas have got opportunities to appear in the departmental exam for promotion to Lower Division Clerk (LDC) in clerical cadre. Hence, conducting a fresh trade test for left out candidates, who could not appear in the trade test due to their 'unawareness', may not be possible vis-a-vis existing recruitment rules in vogue.
7. Drawing from the above developments and the sequence of events it is the contention of the applicants that they had a right to be considered and promoted to in industrial line of promotion to Mate (Semi Skilled) when it was open to them. However, it was illegally denied to them even after they had opted for the trade in the industrial category after the 6 th CPC. They were also stopped from appearing/undergoing the trade test though they had been deputed for appear in the same. None of their representations on these issues have been answered by the respondents. Further, the respondents have not been consistent in their treatment to the class of Chowkidar/Safaiwala. Two officials, namely, Shri.Nalinakshan.P.P., and Shri.Ravi, working under the 3 rd respondent were allowed to take part in the trade test and later even granted further promotions, whereas the applicants, though deputed along with them, were not allowed to do so. The Hon'ble Supreme Court in a decision reported in AIR 1982 SC 1572 has held that, -10- when a person is recruited after fulfilling all the requirements into the service of an organization, it is not for the particular job he was engaged in, but for a whole career with the ladder of promotion. Thus, any denial of consideration for promotion even though they are fully eligible for the same without allowing them to undergo trade test after deputing them for the same was, per se, illegal and unconstitutional. A decision of the 2 nd respondent, as indicated at Annexure A-23 letter to the trade union, cannot be forced upon the applicants. The so called supersession of SRO 169/2004 by SRO 48/2013 at a later stage cannot govern the issue and cannot be held against them. It is submitted that the relevant rule as on 18.04.2013 when they were deputed for the trade test has to be applied in their case and that the trade test should have been conducted for the applicants. The SRO 48/2013 has come into effect subsequent to the option given by them and they being deputed for the trade test. Thus, it follows that they should be allowed again to appear for the trade test and if they qualify, they should also be granted further promotions and consequential benefits as granted to their juniors and colleagues who were allowed to participate in the trade tests held during the period 17.04.2013 to 21.03.2013. Thus, they are not 'left out' or 'unaware' candidates who could not appear in the trade test due to their lack of knowledge as mentioned in the letter at Annexure A-23, but are those who actually applied and were deputed at the centre but were prevented from taking part by the officials of the 4 th respondent who sent them away. The point in the letter that they are eligible to appear for the -11- departmental examination for promotion to LDC in clerical cadre is not relevant in the issue, as they had opted for the industrial cadre of promotion and they should have been given further opportunities accordingly.
8. In addition to these points, learned counsel for the applicants has brought to our notice orders dated 06.09.2013 of the Karnataka Bench of this Tribunal allowing O.A.No.1019-1030/2012 filed by 12 similarly situated officials. The trade test was held in June, 2016 for them and the results were published on 13.07.2016 granting promotions accordingly with all consequential benefits. A copy of the permission to appear in the said trade test has been produced at Annexure A-24 and also produced by the learned counsel for the applicants at the time of oral submission. As per these orders it is seen that the O.A.No.1019-1030/2012 was allowed by the Karnataka Bench of this Tribunal fully relying on the earlier mentioned decision of Ernakulam Bench of this Tribunal in O.A.No.109/2012, produced at Annexure A-6. It is also seen from the documents provided during the time of oral submission that a decision had been taken by the respondents not to appeal against the Bangalore Bench order dated 12.07.2013 in O.A.No.1019-1030/2012. It is thus pointed out that similarly situated officials falling under the Bangalore Bench of this Tribunal and working in the same organization have been allowed to appear in the trade test relying on an order of this own Bench, whereas, they were stopped from appearing in the same by the authorities.
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9. The respondents have filed a short reply statement which is unfortunately marred by several errors including referring to the applicants as respondents. From the materials provided in the reply statement it appears that the contention being taken is that the applicants were not eligible for promotion to Mate (Semi Skilled) as they had not undergone trade test for promotion as trade test is mandatory for promotion from Chowkidar/Safaiwala to Mate. This appears on first reading to be a tautological point as it is the respondents themselves who stopped the applicants from appearing in the trade test. Further, it is also accepted by the respondents in the reply statement that, as per SRO 169/2004, Mazdoors/Chowkidars/Safaiwalas having four years regular service and having passed trade test for the post of the respective trade are eligible for promotion to Mate, being a feeder category. However, it is submitted that the Government Order dated 08.02.2011 at Annexure A-2 did not stipulate the categories of Chowkidars and Safaiwalas to be taken for merger of pay scale of unskilled categories. Their redesignation was thus cancelled due to ambiguity in the absence of clear guidelines as to whether the Chowkidar/Safaiwala who did not pass the trade test would also be required to be re-designated to Mate category or otherwise. In addition, it is submitted that the other Chowkidars/Safaiwalas who had appeared in O.A.No.109/2012 at Annexure A-6 had already passed the prescribed trade test for promotion to Mate before the issue of SRO 48/2013 and thus, they have been promoted and then subsequently promoted to skilled trade. The -13- respondents are thus trying to establish that the applicants herein, are not similarly situated to the applicants in O.A.No.109/2012. Further,they submitted that the applicants in O.A.No.109/2012 had already fulfilled the prescribed service for Mazdoors/Chowkidars/Safaiwalas by having four years regular service and were eligible for promotion to the post of Mate. It is submitted that the trade test which were conducted in April, 2016, in which the applicants were prevented from participating, was for promotion from the post of Mate (Semi Skilled) to Skilled posts from the eligible Chowkidars/Safaiwalas ie., those who had already passed the trade test of Mate. It is submitted the local formation of the MES at Ezhimala had detailed all the Chowkidars/Safaiwalas who had not passed this trade test for the same and the mistake was detected at the centre. However, the respondents also accept that Shri.Nalinakshan.P.P., was allowed to appear in the said trade test by a departmental error.
10. It is submitted by the respondents that due to administrative reasons it had not been possible for the department to redesignate all Chowkidars/Safaiwalas as Mate (Semi Skilled) enblock. Further, conducting a fresh trade tests for left out candidates who had not appeared in the trade test earlier conducted was not possible thereafter, due to the revised policy/implementation of SRO 48/2013. It is accepted by the applicants that the Chowkidar/Safaiwala were at one time the feeder category for promotion to Mate (Semi Skilled). However, it was -14- not possible for the department to redesignate them then as was done in the case of Mazdoors. It is submitted that after 2013, chowkidars/safaiwalas can only appear in the examination for promotion as LDC. However, till the coming into effect of SRO 48/2013 it is also accepted that the categories of Chowkidar/Safaiwala had been given chances to choose their promotion in the industrial line. Only those Chowkidars/Safaiwalas who had passed the trade test for Mate (Semi Skilled) were allowed to attend the trade test which was held on 18.04.2013 to 20.04.2013 for further skilled posts.
11. From the above contention of the respondents, a plain reading of which appears to contain contradictory and self defeating conclusions, a clear picture does not emerge. The respondents seems to be submitting that the Chowkidars/Safaiwalas were at first allowed to appear for the promotion in the industrial category under SRO 169/2004. However, the applicants did not passed the trade test to be considered as Mate (Semi Skilled). Hence, they were not allowed to appear further in any trade test held between 18 th to 20th April, 2013 for further promotion to the skilled category. In any case, after the coming into force the SRO 48/2013 this promotion channel was blocked and the applicants could not be considered any further. These contentions are contradictory since it appears that even when the applicants were eligible to appear in the trade test, no action was taken to enable them to do so inspite of their option to be conducted in the industrial line of -15- promotion. Further the impact of the order of this Tribunal at Annexure A-6 in O.A.No.109/2012 wherein a clear finding that the merger of Chowkidar/Safaiwala with Mate (Semi Skilled) which was kept in abeyance, while allowing Mazdoors to do so was found not correct has also not been considered at all and the applicants were left to their own devices. Thus, these points have been strongly contested by the applicants in their rejoinder, wherein, they have pointed out that the applicants had been denied promotion in the industrial line by cancelling their initial redesignation as Mate FGM/Refrigeration Mechanic, etc without notice and very much after obtaining necessary options from them in pursuance of the order dated 08.02.2011. The respondents, without conducting trade test in time for the applicants and without even calling or notifying the trade test, cannot be now allowed to contend that they had not undergone trade test for promotion. The merger and redesignation made in the case of those applicants in O.A.No.109/2012 was upheld by the Tribunal in its final order dated 12.12.2012, setting aside the cancellation effected in their cases. The applicants herein being similarly situated as that of the applicants therein should have been also considered.
12. It is submitted in the rejoinder that the conduct of the trade test is within the sole authority and power of the respondents and the non conducting of the same cannot devolve upon the applicants to be denied consideration for promotion. It is well settled and trite law that for the -16- default of departmental officials employees cannot be made to suffer. It is also submitted that the contention in the reply statement that the Annexure A-2 order issued by the respondents by which the unskilled and semi skilled workers were merged together did not stipulate the categories of Chowkidar and Safaiwala in the said merger and only stipulated Mazdoors is incorrect. It is also against the dictum in O.A.No.109/2012 dated 12.12.2012. That order has now become final and has been implemented by the respondents. At this late stage respondents cannot make submissions contrary to the findings in O.A.No.109/2012 that the applicants had misunderstood the Government Order. The redesignation given to them after the Annexure A-2 order along with the clarifications at Annexure A-3 and Annexure A-4 were cancelled without prior notice and without affording them any opportunity of being heard. It is submitted that the conduct of the trade test for Mate is mandatory only for regular promotion but not for redesignation. Their redesignation as Mate had been correctly given but was subsequently cancelled on the pretext that the Annexure A-2 order dated 08.02.2011 applied only to the category of Mazdoor and not to Chowkidar and Safaiwala which as has been stated earlier, was categorically found against the final order in O.A.No.109/2012. Thus, it is submitted by the applicants in their rejoinder that the respondents should have upheld the redesignation already granted to them and they should have rescinded the cancellation made erroneously.
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13. Further, without conducting the trade test the respondents cannot now be taking the plea that the applicants have not passed the trade test and, therefore, are not eligible for promotion as Mate. The applicants submit that it is to be noted that, since 2005, no trade test for promotion to the semi skilled post of Mate has been conducted for the Chowkidars/Safaiwalas in the MES particularly for the applicants working at Ezhimala. At any rate after the applicants completed their four years service period no trade test for consideration for promotion to Mate was conducted. Hence, when they were never called for or notified for any trade test until the notification came in April, 2016, for the conduct of another trade test, there is no merit in contending, as has been done in the reply statement, that the applicants never appeared in a trade test since their appointment. It is submitted that the respondents are only now taking the plea that the trade test which was conducted in April, 2016 was for promotion from the post of Mate (Semi Skilled) to the Skilled category which has been misunderstood by the lower formations at Ezhimala. If that was the case what prevented them to correct or atleast giving a reply to the representations made by the applicants? On the contrary, it is submitted that it was not at all a departmental error and the applicants were sent correctly for trade test for promotion by the concerned Garrison Engineer. However, due to the illegal conduct of certain officials of the respondents at Kochi all these applicants from Ezhimala were denied the opportunity to appear in the trade test and, therefore, denied further promotions. It is also submitted that the contradiction in the respondents' -18- position can be seen from the fact that they implemented the final order in O.A.No.109/2017 dated 12.12.2012 on 17.03.2014 much after the issuance of SRO 48/2013 and thereafter on 19.04.2014. Further, the acceptance on the part of the respondents that they had allowed by error Shri.Nalinakshan.P.P., to appear in the trade test is not explained as to why they have continued to perpetuate the error by giving him further promotion, without any demur. These facts appear only to be put forth by the respondents as after thoughts to defeat the claims of the applicants after committing irregularities and illegalities and treating the applicants with prejudice by not allowing them to undergo the trade test. Their promotional prospectus are thus being deferred forever, which has affected them drastically.
14. The respondents filed an additional reply statement, wherein, they again reiterate that the Annexure A-2 letter of the Ministry of Defence dated 08.02.2011 had clearly mentioned that for the unskilled and semi-skilled category of Industrial employees, those who have already placed as Mazdoor and Mate after passing required trade test from the category of Chowkidar/Safaiwala are only to be merged as Semi Skilled. The Annexure A-3 letter dated 13.10.2011 by the 3 rd respondent was a misinterpretation of this policy of the Ministry of Defence as it is inadvertently issued direction to the lower formation for considering the Safaiwala and Chowkidar who had not even appeared for the trade test to -19- opt for the industrial line of promotion. The respondents, are thus submitting that the Annexure A-3 clarification/circular dated 13.10.2011 was issued as an inadvertent error, which was later corrected and the order under which the applicants were redesignated as Mate was also cancelled. They also seek to make a distinction between the applicants in this O.A to that of the applicants in O.A.No.109/2012 where all the applicants redesignated had qualified by means of passing trade test for respective trades and had opted for promotion in the line of industrial in MES.
15. After due consideration and reflection we find that these different contentions have been taken late after filing contradictory and not clarificatory reply statements as earlier observed. The fact of the matter is that at different points of time the applicants were being considered in the industrial line of promotion for further promotion and even had orders issued in their names as Mate (Semi Skilled). Later these were cancelled, apparently on the ground that it was inadvertently issued by error. Next, the respondents have taken the plea that the applicants cannot be considered as Mate (Semi Skilled) because they had not appeared for the trade test for getting promotion as the Mate (Semi Skilled). But it appears uncontested that from 2005 right up to 2013 no such trade test was conducted by the respondents themselves, though they have also admitted that the Chowkidars/Safaiwalas had been considered along with Mazdoors for -20- promotion as Mate (Semi Skilled) for the industrial category. Now, they have gone to the extent of terming the clarification issued at Annexure A-3 dated 13.10.2011 by one of the respondents along with Annexure A-4 which appears to accept that the Chowkidars/Safaiwalas who have opted for their promotion in industrial line are to be merged with the corresponding Semi Skilled trades with effect from 09.09.2008 and should be placed junior to Semi Skilled workers in service as on 09.09.2008 in the order of their seniority, as erroneously issued in their additional reply statement.
16. Whatever be the case, such contradictions in positions and self defeating averments are not acceptable especially when arguments are put forth by responsible respondents in front of a judicial body like this Tribunal. We express our disappointment and unhappiness with the casual approach taken by the respondents. The larger point of the finding of this Tribunal in O.A.No.109/2012 dated 12.12.2012 was that those who were having the required service as Chowkidar/Safaiwala should be treated on a equal footing with those who had joined as Mazdoors. Once these orders were passed and also implemented and where there has been no further appeal, it stands to reason that similarly situated officials like the applicants herein whose only difference was that they were not allowed to appear in the trade test simply because it was not conducted, are also to be treated equally as the applicants therein. Further, it is even seen that in other stations such as Bangalore, the orders passed by the concerned Bench of -21- Tribunal there, even as late as 12.07.2013, were implemented inspite of the new rules as per SRO 48/2013 having coming into force based on the order of this Tribunal in O.A.No.109/2012.
17. Suffice it to say that we find that reasonable grounds have been made by the applicants for a proper reconsideration of their plea by the respondents. The applicants in their relief array have sought for a directions to the respondents to conduct a trade test afresh, as per their eligibility as per Annexure A-1, and to grant promotions and consequential benefits on the same basis as was granted to other Chowkidars/Safaiwalas who are similarly situated and who are allowed to participate in the trade test on 18.04.2013 to 20.04.2013. They have also sought for a declaration for consideration of promotion in the industrial line as they were eligible and entitled to be considered for promotion in the industrial line well before 07.07.2013 in accordance with the then prevailing rules as per the Annexure A-1 Recruitment Rules under SRO 169/2004. We would broadly agree with the spirit of these pleas. The respondents are thus directed to conduct a trade test for the applicants for consideration for placement as Mate (Semi Skilled) as well as for consideration to further promotion to other skilled categories, as per the rules which were prevailing at the time they were eligible i.e., as per SRO 169/2004. If the applicants clear this test, they may be considered further for other trade tests for further promotion as done in the cases of their colleagues and juniors. All the necessary actions in this -22- regard should be taken by the respondents within a period of three months from the date of receipt of a copy of this order. It is also made clear that these orders will apply only to the applicants in this O.A and will not apply to any other Chowkidars/Safaiwalas who have not come before this Tribunal praying for similar reliefs.
18. With these observations and directions, the O.A is allowed to the extent as indicated above. No order as to costs.
(Dated this the 7th day of November 2022)
K.V.EAPEN JUSTICE SUNIL THOMAS
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp
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List of Annexures in O.A.No.180/00850/2016
1. Annexure A-1 - A copy of the relevant extract of Government Notification of promotion in Industrial line to the post of Mate (Semiskilled) tradesman as per the SRO 169.
2. Annexure A-2 - A copy of the letter No.PC-
B/77030/VICPC/IND/CSCC/400/11/D-Works-II, dated 08.02.2011.
3. Annexure A-3 - A copy of the letter No.130090/GEN/POL/56/EIB(P), dated 13.10.2011.
4. Annexure A-4 - A copy of the letter No.10318/33/EINB, dated 15.10.2011.
5. Annexure A-5 - A copy of the Part II order dated 31.10.2011 issued by the 3rd respondent.
6. Annexure A-6 - A copy of the final order dated 12.12.2012 O.A.No.109/2012 passed by this Hon'ble Tribunal.
7. Annexure A-7 - A copy of the order No.10322/39/EINB, dated 17.03.2014.
8. Annexure A-8 - A copy of the order No.10322/44/EINB, dated 19.04.2014.
9. Annexure A-9 - A copy of the letter No.10306/112/E/1NB, dated 16.04.2013.
10. Annexure A-10 - A copy of the identification certificate in respect of the 1st applicant dated 17.04.2016.
11. Annexure A-11 - A copy of the Office Order No.23, dated 17.04.2013.
12. Annexure A-12 - A copy of the detention certificate dated 18.04.2013 issued to the 1st applicant on behalf of the 4th respondent.
13. Annexure A-13 - A copy of the letter No.10306/279/E/NB, dated 05.09.2014 issued for the 4th respondent.
14. Annexure A-14 - A copy of the representation dated 27.04.2013 submitted by the 1st applicant.
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15. Annexure A-15 - A copy of the representation dated 03.05.2013 submitted by the 2nd applicant.
16. Annexure A-16 - A copy of the letter No.132201/Pol/TT/983/E1B(S) (B-III), dated 04.03.2014.
17. Annexure A-17 - A copy of the representation dated 16.02.2015 submitted by the 1st applicant through proper channel.
18. Annexure A-18 - A copy of the representation dated 03.03.2015 submitted by the 2nd applicant through proper channel.
19. Annexure A-19 - A copy of the representation submitted by the 3 rd applicant through proper channel.
20. Annexure A-20 - A copy of the representation submitted by the 4 th applicant through proper channel.
21. Annexure A-21 - A copy of the representation dated 25.03.2015 submitted by the 5th applicant through proper channel.
22. Annexure A-22 - A copy of the letter dated 08.10.2015 by the 5 th respondent.
23. Annexure A-23 - A copy of the letter dated 04.09.2015 by the 2 nd respondent.
24. Annexure A-24 - A copy of the special PTO dated 03.08.2016 publishing the result of the incumbents therein.
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