Central Administrative Tribunal - Ernakulam
K. Musthafa vs Union Of India Represented By on 5 November, 2015
Author: P.Gopinath
Bench: P.Gopinath
Central Administrative Tribunal
Ernakulam Bench
OA 962/2011
Thursday, this the 5th day of November, 2015
CORAM
HON'BLE MR.JUSTICE N.K.BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Mrs. P.GOPINATH, ADMINISTRATIVE MEMBER
K. Musthafa, 41 years
S/o Hamsa
Karimbanakal House
Perimbadari P.O.
Palakkad District. . . . . . Applicant
(By Advocate : Mr.T.A.Rajan)
Versus
1. Union of India represented by
Secretary to Govt of India
Ministry of Defence
New Delhi-1.
2. The Flag Officer Commanding-in-Chief
Headquarters, Southern Naval Command
Naval Base, Kochi-4.
3. The Chief Staff Officer (P&A)
Headquarters, Southern Naval Command
Naval Base, Kochi-4. . . . . . Respondents
(By Advocate: Mr.N.Anil Kumar, Sr.PCGC)
The OA having been finally heard on 30 th September, 2015, this Tribunal
delivered the following order on 5.11.2015:-
ORDER
By Mrs.P.Gopinath, Administrative Member Through this OA, applicant seeks a declaration that he is eligible and entitled to be considered and appointed as Pipe Fitter (SK) in the existing vacancy reserved for OBC and a direction to the respondents to consider appointing him as Pipe Fitter.
2. The brief facts of the case are that the applicant possesses ITI certificate in the trade of Plumber. He had undergone apprenticeship training in the trade of Plumber in the Apprentice Training School, Naval Ship Repair Yard, Kochi. As per Navy Group- C and D Industrial Posts (Tradesman and Labourers) Recruitment Rules, 2000 (Annexure A4), 60% of the posts are to be filled up by absorption of Ex-Naval Apprentices and 40% by promotion of semi skilled workers with four years of regular service in the grade, failing which by direct recruitment. Ministry of Defence by order dated 20.5.2003 restructured the industrial cadre as follows:-
Skilled - 45%
Highly Skilled - 55%
Master Craftman - 25% of the highly skilled grade posts
will be placed in the grade of Master
Craftsman. They will, however, not be
part of the hierarchy.
Against 55% of Highly Skilled Grade 14 persons are now working. As 14 employees are working in the 55% quota, the number of employees in the skilled grade will be 11. There are 12 sanctioned posts of Pipe Fitter (SK)and as against this, 9 persons are working. Thus at present, 3 posts of Pipe Fitter (SK) are lying vacant. A 13-point roster is maintained in the trade of Pipe Fitter (SK). It is seen from Annexure A6 that the 4th and 8th points in the roster are to be given to OBC employees. One Sri M.R.Ashokmani was appointed to the post of Pipe Fitter (SK) against the 4 th point in the roster under OBC quota on 25.7.2007. Thereafter the following appointments were made by the respondents in the post of Pipe Fitter (SK):-
Name Date of Appointment
1. K.T.Madhavan 07.04.2008
2. A.P.Sabore 09.02.2009
3. P.Y.Sabu 27.05.2009
4. Joe Abraham 03.11.2010
5. A.N.Sathyan 03.11.2010
6. C.Krishnan 20.12.2010
None of the above persons belongs to OBC. Applicant is the next OBC candidate awaiting appointment to the post of Pipe Fitter (SK). Respondents have not filled up the OBC post (8th point in the roster). Applicant submitted a representation dated 3.11.2010 (Annexure A7) which was rejected by the respondents by order dated 12.11.2010 (Annexure A8) on the ground that age limit for absorption was under
examination at Integrated Headquarters, New Delhi. Hence this OA.
3. Respondents in their additional reply statement point out that the total sanctioned strength of Pipe Fitter is 24 including one vacany of INA Ezhimala. As per Ministry of Defence letter dated 14th June 2010, the grade structure of industrial cadre stands modified with effect from 1.1.2006 as 45% of the total posts is to be catered by the Skilled Grade and the balance 55% to be bifurcated amongst the Master Craftsman @ 25% of 55% and 75% of 55% to be divided amongst Highly Skilled Grade-I and Highly Skilled Grade-II in the ratio of 50:50. Therefore the percentage distribution is as under:-
Name of Post Percentage Percentage arrivated at as per calculation Skilled Grade 45% 45.000 Master Craftsman 25% of 55% 13.750 Highly Skilled Grade-I 75% of 55% in the ratio 50:50 20.625 Highly Skilled Grade-II 75% of 55% in the ratio 50:50 20.625 3.1 Based on the above percentage, 24 posts sanctioned in the trade of Pipe Fitter have been bifurcated by catering 4 posts for Master Craftsman and 5 each for HSG-I and HSG-II and the remaining 10 vacancies were kept for the entry grade of Skilled Tradesman. The calculation of posts, therefore, is to be as under:-
Skilled Grade 45% of 24 posts 10.8 (rounded off to 10)
Master Craftsman 25% of 14 posts 3.5 (rounded off to 4)
HSG-I 50% of 10 posts 5
HSG-II 50% of 10 posts 5
While justifying the rounding off of the calculation of 10.8 to 10 and 3.5 to 4, it is cited that one individual will be benefited by way of higher grade pay of Rs.4200.
Moreover, the existing Master Craftsman, HSG-I and HSG-II posts cannot be curtailed as individuals holding such posts are to be retained as per restructure orders of 1.1.2006. While carrying out the restructure of artisan cadre as per order dated 14 th June 2010, the newly sanctioned post for INA Ezhimala was also included for calculation and hence the 10 SK posts include the INS Ezhimala post. Since separate rosters are maintained for ex-apprentices and promotees, out of the 10 posts available in the trade of Pipe Fitter Skilled, 6 posts are to be filled by ex-apprentices and 4 posts by promotion. Of the 4 posts available for promotees, 3 have been filled up and only one post is left to be filled by promotion from departmental candidates. This was the only vacancy available in Pipe Fitter Trade at the time of filing OA by the applicant and the same has already been filled through promotion from feeder category so that the promotees quota of 40% can be completed.
3.2 Respondent submits that OA 721/2010 was filed by M.P. Polchan, ex- apprentice in the trade of Pipe Fitter .While disposing of the above OA, the Tribunal held as under:-
'The point in controversy is as to whether there is one more vacancy available to be filled up from Ex-apprentice quota or to fill up by promotion? According to the respondents, there is no vacancy at present for ex-apprentice to be appointed. Going by the factual figures and admitted facts when there are 24 posts available, both inclusive of Skilled and Highly Skilled 45% are to be filled from Skilled and 55% from HSG, 45% of 24 is 10.8 and therefore it has to be taken as 11. Out of the posts, 60% if worked out comes to 6.6. to be filled up by ex-Naval Apprentices. If 0.5 and above is considered as one there will be 7 posts available to be filled up. Admittedly, only six have been appointed from ex-apprentices. Therefore, the remaining post is to be filled up by appointing ex- apprentices. We accordingly declare that the remaining vacancy of one post will go to ex-Naval Apprentices and the applicant is the 4 th in the seniority list, of the three above him, two have relinquished their claim and applicant is the next available person. This is not in dispute. In the circumstances, there will be a direction to the 2 nd respondent to consider the case of the applicant for being appointed in the ex-Naval Apprentices quota in the skilled category before appointing anybody else. This shall be done as early as possible, at any rate, within a period of three months from the date of receipt of copy of this order.' Polachan was senior to applicant in the seniority list of ex-naval apprentices. 3.3 In compliance of the above directions, the 7th vacancy of Tradesman (Skilled) in Pipe Fitter trade was filled . The following individuals were appointed from amongst ex-apprentices against 7 vacancies available in the 60% quota meant for ex-
apprentices in the Pipe Fitter Trade.
1. Thomas T.Kuriakose (UR)
2. A.P.Sabore (UR)
3. P.Y.Sabu (UR)
4. M.R.Ashokmaony (OBC)
5.A.N.Sathiyan (appointed in compliance of Court order in OA 144/2009).
6. Joe Abraham (appointed in compliance of Court order in OA 426/2009
7. M.P.Polachan (appointed in compliance of Court order in OA 721/2010).
Remaining posts were occupied by promotees:-
1) K.Vijayan (UR)
2) K.T,Madhavan (UR)
3) C.Krishnan (SC candidate appointed on merit against UR vacancy) Thus all 10 posts were filled. The next vacancy arose on promotion of Thomas T.Kuriakose to HSG-II, which was in January 2013. No vacancy was available prior to January, 2013.
3.4 It is contended by respondents that the criteria for determining and conferring OBC status is an OBC certificate along with 'non-creamy layer certificate' issued by the competent authority and both these certificates have not been produced by the applicant. The 8th roster point could not be filled due to non-availability of a candidate at that time. The unfilled 8th point in the roster against OBC has now been utilized by one Sreekumar Yesodharan, who has been posted to Kochi on compassionate ground from Naval Dockyard Mumbai on 13.1.2014 against the vacancy created due to promotion of Thomas T.Kuriakose, the senior most ex-naval apprentice as HS-II. Since this vacancy had arisen before promulgation of Annexure R3 Recruitment Rules, the applicant could not be considered. Respondent contends that Annexure A5 is a letter issued by Headquarters Southern Naval Command to INA Ezhimala asking for their requirement of Tradesman. The propriety of annexing this order by the applicant to show one vacancy of Pipe Fitter at Ezhimala is not understood. Therefore, the applicant cannot be considered for absorption due to non-availability of a vacancy in the trade of Pipe Fitter (Skilled) after issuance of Annexure R3 Recruitment Rules, contend the respondents.
4. Heard the counsel for applicant and respondents and perused the written submissions made. The prayer of the applicant is to be considered and appointed to the post of Pipe Fitter (SK) in the existing vacancy of OBC.
5. It is admitted that 4th & 8th points in the roster are OBC points. Against the 4th point one Sri Asokamani has been appointed. Hence applicant's claim is for the 8 th point.
6. The percentage of distributuon of posts and the consequent calculation of the percentage into number of posts has been brought out by respondents as per recruitment rule allocation and this is accepted including the rounding off of percentages in favour of higher posts thereby improving promotional prospects which logic is rational. The higher number of personnel working as against this allocation has also been explained as not distrubing the existing incumbants till they are promoted/retired as they are already borne on the strength before the restructure orders. Thereafter, the number of occupants as per percentage fixed will be maintained. The highly skilled is not a simple 55% as understood by the applicant but is 75% of 55% to be distributed in the ratio of 50:50 between HSG-I and HSG-II and the 25% balance is allocated to MC. Hence as per order dated 10.9.2012 of the Tribunal in OA 485/2012, the distribution of posts in the categories as per recruitment rules is accepted in view of calculation provided in the reply of respondent in this OA also. Applicant in his rejoinder submits that 9 persons are working in the skilled grade and hence one vacant post is available in the quota prescribed as per recruitment rules and this is confirmed by respondents. Against this vacancy one Sri Sreekumar Yesodharan, an OBC official as contended by respondent, who has been brought on comnpassionate ground to Kochi from Mumbai has been brought on bottom seniority. Respondent submits that such a facility is availble to employees and there was no stay of the Tribunal on its operation. Applicant has also not pointed out any contrary order to this facility. However, the respondent at the appropriate time of implementing the transfer should have brought the matter to the notice of this Tribunal as the matter of filling OBC vacancy was sub judice.
Annexure R3 Recruitment Rules were issued in June 2012 before the occurence of vacancy due to promotion of Thomas T. Kuriakose in January 2013. The applicant is over-aged for being considered for direct recruitment as he was 41 years of age at the time of filing OA. The Recruitment Rules in force at the time of occurence of above vacancy provides age limit of 35 years for government servants and relaxable by 5 years for SC/ST, educational qualification of 10 th pass and subject to a competitive qualifying test to assess suitability for the post. The recruitment rules as drawn up competely cuts off the promotional quota, which as brought out in a plethora of judicial pronouncements is a normal incidence of service. Completely negating the promotional avenue is a disincentive which will promote disgruntlement. When an official enters an organization he looks forward to career advancement and a realistic opportunity for upward movement. Hence, the feeder grade to SK cannot be totally cut off from promotion to higher grades. Respondents will re-examine Annexure R3 Recruitment Rules to provide a minimum of 10% reservation of posts in SK for the feeder grade, age restriction not being a bar.
7. The applicant in 2011 had filed an OA for considering his eligibility and entitlement to be considered as Pipe Fitter (SK) in the existing OBC vacancy and hence the filling of this vacancy by another OBC candidate during the pendency of this OA was not in order. Respondent is directed to consider appointing the applicant against the 8th roster point OBC vacancy within a period of three months subject to verification of his OBC status.
(Mrs.P.Gopinath) (N.K.Balakrishnan) Administrative Member Judicial Member aa.