Kerala High Court
Union Of India vs V.J. Xavier on 3 December, 2024
Author: Amit Rawal
Bench: Amit Rawal
2024:KER:91112
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TUESDAY, THE 3RD DAY OF DECEMBER 2024 / 12TH AGRAHAYANA, 1946
OP (CAT) NO. 223 OF 2017
AGAINST THE ORDER DATED IN OA NO.678 OF 2014 OF CENTRAL
ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH
PETITIONERS/RESPONDENTS 1 & 2:
1 UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE
GOVERNMENT OF INDIA, MINISTRY OF AGRICULTURE & FARMERS
WELFARE, DEPARTMENT OF ANIMAL HUSBANDRY, DAIRYING &
FISHERIES, KRISHI BHAVAN, NEW DELHI 110 001
2 THE DIRECTOR, CENTRAL INSTITUTE OF FISHERIES, NAUTICAL AND
ENGINEERING TRAINING (CIFNET), MINISTRY OF AGRICULTURE 7
FARMERS WELFARE, DEPARTMENT OF ANIMAL HUSBANDRY,
DAIRYING & FISHERIES, FORESHORE ROAD, KOCHI 682 016
BY ADV SRI.T.V.VINU, CGC
RESPONDENT/APPLICANT:
V.J. XAVIER, S/O. JOSEPH, RETIRED AS MATE FROM CENTRAL
INSTITUTE OF FISHERIES NAUTICAL AND ENGINEERING TRAINING
UNIT,
CHENNAI AND RESIDING AT VELIVIL HOUSE, BTS ROAD,
DEVANKULANGARA, EDAPPALLY, KOCHI 682 024
BY ADV SRI.T.A.RAJAN
THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 03.12.2024, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P(CAT) No.223/2017
2
2024:KER:91112
JUDGMENT
Amit Rawal, J.
The present O.P(CAT) is directed against the judgment of the Tribunal dated 04.10.2016, whereby the following claims made by the respondent/applicant have been accepted:
I) Declare that the applicant is entitled to get promotion to the post of Mate with effect from 1.11.2006 and also furhter promotion to the post of Skipper.
II) Direct the respondents to promote the applicant to the post of Mate with effect from 1.11.2006 and also direct to promote the applicant to the post of Skipper in one of the existing vacancies.
III) Award costs of and incidental to this application.
IV) Grant such other relief, which this Honourable tribunal may deem fit and proper in the circumstances of the case.
2. Succinctly the facts in brief for adjudication of the dispute are as under:
O.P(CAT) No.223/20173
2024:KER:91112 Respondent/applicant before the Tribunal retired as a Skipper-in-charge with effect from 31.10.2013 while working in the Central Institute of Fisheries, Nautical and Engineering Training, Chennai Unit.
3. He was originally appointed as Fishing Second Hand which was later re-designated as Bosun on 06.06.1980. On account of non-availability of the Skipper, was assigned the officiating charge of Skipper from 2006 onwards. However, since there was no avenue of promotion, was granted two financial upgradations under the Assured Career Progression (ACP) Scheme, the first was in the pay scale of Mate and the second was in the pay scale of Skipper. As per the recruitment rules, the next promotion post from Bosun was Mate and thereafter, the Skipper. A person who had rendered seven (7) years of service as Mate shall be entitled to be promoted as Skipper, however the period of seven (7) years expired on 01.11.2013, whereas the respondent/applicant retired on 31.10.2013.
4. The case of the applicant in brief as noticed above was that, since he was discharging the officiating duties of Skipper, was entitled to be promoted as Mate with effect from 01.10.2016 when the O.P(CAT) No.223/2017 4 2024:KER:91112 post of Mate had fallen vacant as per the information obtained under the Right to Information Act, evident from Ext-A1. Noticing all these facts, the learned Tribunal allowed the Original Application O.A.No.678/2014 on 04.10.2016 with the following directions:
'Hence, considering the peculiar facts and circumstances of the case, we have no hesitation to hold that the applicant is entitled to be promoted to the post of Mate with effect from 01.11.2006 and thereafter to the post of Skipper on completion of the requisite residency period in the post of Mate. Appropriate orders shall be passed by the respondents within two months from the date of receipt of a copy of this order. This Original Application is disposed of as above. No order as to costs.'
5. Mr.T.V.Vinu, learned counsel appearing on behalf of the Union of India assailed the aforementioned order on the premise that the relaxation provided under the rules cannot be applied for the reason that the applicant had not completed the period of seven (7) years while discharging duties as Mate, therefore could not be accorded the status of Skipper. In other words, the status, in case his contentions are accepted, on retirement, would be that of a Mate, though there was no financial burden as two financial upgradations have already been granted to the respondent/applicant. Moreover, the said relaxation provided under Rule 5 of the Central Institute of Fisheries, Nautical and O.P(CAT) No.223/2017 5 2024:KER:91112 Engineering Training (Skipper) Recruitment Rules 2012 is applicable only to any class or category of persons.
6. On the other hand, Mr.T.A.Rajan, learned counsel appearing on behalf of the respondent/applicant defended the aforementioned decision of the Tribunal on the premise that two financial upgradations, one as Mate and the other as Skipper, had already been given, therefore the applicant ought to have been treated as Skipper as was officiating duties of Skipper with effect from 2006.
7. We have heard the learned counsel for the parties and appraised the paper book.
8. The information obtained under the Right to Information Act regarding the occurrence of vacancy of Skipper and Mate is as follows:
'Skipper - 9.11.2000, 17.05.2001, 30.12.2002, 31.10.2003, 01.05.2007 Mate - 1.11.2006, 1.12.2009.'
9. The Central Institute of Fisheries, Nautical and Engineering Training (Skipper) Recruitment Rules, 2012 has a Schedule prescribing the guidelines for claiming promotions to different posts. As O.P(CAT) No.223/2017 6 2024:KER:91112 far as promotion to Mate is concerned, it has a pay scale of Rs.9300 - 34800 with grade pay of Rs.4600 with seven (7) years of regular service in the grade. The feeder cadre to the post of Skipper is from Mate. Concededly the respondent/applicant had not completed seven (7) years of service in Mate as he retired on 31.10.2013 if the period of seven (7) years is calculated from 01.11.2013.
10. Clause 5 of the Recruitment Rules dealing with the relaxation is extracted hereinbelow:
'Where the Central Government is of the opinion that it is necessary or expedient so to do, it may, be order, for reasons to be recorded in writing and in consultation with the Union Public Service Commission, relax any of the provisions of these rules with respect to any class or category of persons.'
11. No doubt the aforementioned powers to relax is with respect to any class or category of persons. Applicant had been offficiating duties of Skipper, is the testimony that there was no recruitment or promotion of the Skipper. In such circumstances, we are of the view that the direction issued by the Tribunal, though apparently against the rules, in the peculiar facts and circumstances of the case, need not be interfered. We do not take into consideration the O.P(CAT) No.223/2017 7 2024:KER:91112 applicability of the rule in stricto senso and uphold the findings of the Tribunal by holding that this shall not be treated as a precedent.
OP (CAT) stands dismissed.
Sd/-
AMIT RAWAL JUDGE Sd/-
K. V. JAYAKUMAR JUDGE Sbna/03.12.24 O.P(CAT) No.223/2017 8 2024:KER:91112 APPENDIX OF OP (CAT) 223/2017 PETITIONER ANNEXURES ANNEXURE A1 TRUE COPY OF THE ORDER F. NO.1/2010/PIO/VOL9 DATED 18/10/2010.
ANNEXURE A2 TRUE COPY OF THE NOTIFICATION F. NO.13- 19/2010-ADM. PUBLISHED IN EMPLOYMENT NEWS DATED 16/08/2013.
ANNEXURE A3 TRUE COPY OF THE NOTIFICATION F. NO.3-21/2013- ADMN. V. DATED 27/09/2013.
ANNEXURE A4 TRUE COPY OF THE REPRESENTATION DATED 02/09/2013 SUBMITTED BY THE APPLICANT. ANNEXURE A5 TRUE COPY OF THE ORDER F. NO.13-19/2010-ADMN.
DATED 25/10/2013.
EXHIBIT P1 TRUE COPY OF THE OA NO 180/00678/2014 DATED 04-10-2016 FILED BY THE RESPONDENT BEFORE THE CAT, ERNAKULAM EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT IN OA NO 180/00678/2014 FILED BY THE PETITIONERS EXHIBIT P3 TRUE COPY OF THE ORDER IN OA NO.
180/00678/2014 DATED 04-10-2016, OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH