Central Administrative Tribunal - Mumbai
Murlidhar Sandu Borade vs M/O Defence on 6 February, 2025
1 OA No.487/2018
CENTRAL ADMINISTRATIVE TRIBUNAL
MUMBAI BENCH, MUMBAI.
ORIGINAL APPLICATION No.487/2018
Dated this Thursday the 6th February, 2025
CORAM: Hon'ble Mr. Shri Krishna, Member (A)
Hon'ble Mr. Umesh Gajankush, Member (J)
Murlidhar Sandu Borade, Age 61 years
R/o house No.563-A/970,
Shri Borade Bhavan,
Near Shitala Devi Mandir,
At Post : Bhagur - 422 502,
Dist.Nasik (Maharashtra)
Retired as Fireman Grade-I from the
Office of the Commandant,
HQ School of Artillery,
Devlali - 422 401,
Dist. Nasik (Maharashtra) ... Applicant
(By Advocate Shri R.P. Saxena)
VERSUS
1. Union of India, through
The Secretary to the Govt. of India,
Ministry of Defence, South Block,
New Delhi - 110 001.
2. Director General of Artillery,
Dte Gen of Artillery (Arty-10),
General Staff Branch,
Integrated HQ of MoD (Army)
New Delhi - 110 011.
2 OA No.487/2018
3. The Commandant,
HQ School of Artillery,
Devlali - 422 401,
Dist. Nasik (Maharashtra) ... Respondents
( By Advocate Mrs. N.V. Masurkar )
ORDER
Per: Mr. Shri Krishna, Member (A)
The applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 to seek the direction to the respondent No.3 to conduct year-wise Departmental Promotion Committee (DPC) in each year beginning from the year 2009 and consider the case of the applicant for grant of promotion to the post of Leading Hand Fire.
2. Brief facts of the case as stated by the applicant in the OA are that he was appointed on Group 'D' post of Arty Lascar in the office of the respondent No.3 on 22.03.1979. In the course of time, he was promoted from Arty Lascar to Fireman Grade-II on 19.09.1984 and then to 3 OA No.487/2018 Fireman Grade I on 28.04.1998. After completing two years of service as Fireman Grade-I, he was entitled to be promoted to the next higher post of Leading Hand Fire subject to availability of vacancy.
2.1 The respondent No.3 conducted DPC and forwarded the DPC proceedings to respondent No.2 for his promotion from the post of Fireman Grade I to Leading Hand Fire on 11.07.2009. However, the respondent No.2 returned the said DPC proceedings on 05.10.2009 stating that Group 'C' and Group 'D' categories have been merged/upgraded w.e.f. 01.01.2006 and given common pay scales. The respondent No.3 again forwarded the DPC proceedings on 07.08.2013 to respondent No.2 for promotion from the post of Fireman Grade I to the next promotional post of Leading Hand Fire. The respondent No.2 vide letter dated 21.10.2013 returned the file stating "the pay scales of Fire Fighting Staff have 4 OA No.487/2018 already been upgraded and nomenclature as per CDS(RP) Rules, 2008 has been changed." It was stated that amended draft Recruitment Rules in respect of Fire Fighting Staff as per Recruitment Rules of Army Ordinance Corps may be submitted to the Directorate General for approval of Ministry of Defence/D (Appts) - the respondent No.1. 2.2 The applicant submits that through letters dated 18.11.2013, 19.04.2014 and 19.05.2014, the respondent No.3 has sought the advice of respondent No.2 as to whether the DPC proceedings of Fire Fighting Staff on the basis of Recruitment Rules of Fire Fighting Staff in Indian Air Force can be submitted for approval. The respondent No.2 has informed the respondent No.3 by letter dated 12.06.2014 that DPC for Fire Fighting Staff of Headquarters, School of Artillery cannot be convened on the basis of Recruitment Rules applicable for Fire Fighting Staff in Indian Air Force.
5 OA No.487/20182.3 The applicant submitted a representation dated 11.02.2016 to the respondent No.3 for his promotion. In response to his representation, the respondent No.3 has informed the applicant vide letter dated 16.02.2016 that draft RR of Fire Fighting Staff has been forwarded to respondent No.2 vide letter dated 17.09.2015 and the same was forwarded by respondent No.2 to the respondent No.1 for finalization. While the draft Recruitment Rules were under consideration, the applicant retired as Fireman Grade-I from the office of respondent No.3 on 31.05.2017 on attaining the age of superannuation. 2.4 It is the case of the applicant that he is entitled to be considered for promotion to the post of Leading Hand Fire w.e.f. 01.06.2009 on the basis of the then Recruitment Rules and in case he is found fit, he should be promoted to the post of Leading Hand Fire with all consequential benefits including arrears of pay 6 OA No.487/2018 as his promotion to the said post cannot be withheld on the pretext of non-availability of amended Recruitment Rules in respect of Fire Fighting Staff of Headquarters, School of Artillery.
2.5 It has been submitted that there is failure on the part of the officers to discharge their duties and the applicant should not be allowed to suffer as there is no fault on his part not to be considered for promotion.
3. On notice, the respondents have filed their affidavit in reply. It has been submitted that the pay scales of Artillery Lascar, Fireman Grade-II and Fireman Grade-I under the 6th Pay Commission are as under:
Sr. No. Post Pay Band Grade Pay (VIth CPC)
(a) Arty Lascar Rs.5200-20200 PB-1, GP Rs.1800
(b) Fireman Grade-II Rs.5200-20200 PB-1, GP Rs.1800
(c) Fireman Grade-I Rs.5200-20200 PB-1, GP Rs.1900 The DPC for promotion to the Leading Hand Fire 7 OA No.487/2018 was conducted in 2009 and sent to the respondent No.2 which returned the said proceedings unactioned on the ground that the Group 'C' and Group 'D' had come to be merged w.e.f.
01.01.2006. The proceedings were once again forwarded on 07.08.2013 but due to pendency of framing of fresh Recruitment Rules, he could not be promoted. The applicant has already retired from service on 31.05.2017 whereas he has been granted the IIIrd MACP in March, 2009 in the Grade Pay of Rs.2800 in PB-I whereas the promotion that he seeks from the year 2009 in the post of Leading Hand Fire is only in the Grade Pay of Rs.2000. Therefore, it seems to be an exercise in futility for a man who is already superannuated from service in 2017 and, therefore, the OA should be dismissed as frivolous.
3.1 It has been submitted that merely because a post is vacant, the applicant cannot 8 OA No.487/2018 demand promotion thereto and in any event promotion cannot be granted from the date of availability of vacancy but promotion is only prospective whereas in the present case since the applicant has filed the OA after his superannuation on 31.06.2017, the OA deserves to be dismissed as being frivolous and infructuous. 3.2 It has been submitted that the applicant was promoted from Arty Lascar to Fireman Grade II on 19.09.1984 and then from Fireman Grade II to Fireman Grade-I w.e.f. 28.04.1998 as per the Recruitment Rules SRO No.27 dated 12.02.1990. He became eligible for promotion to the post of Leading Hand Fire subject to availability of vacancy, after completing qualifying service of three years continuous service in the post of Fireman Grade-I. One Leading Hand Fire retired on 31.05.2009 creating a vacant post. Accordingly, on occurrence of vacancy, DPC Board proceedings for promotion from Fireman Grade-I to Leading 9 OA No.487/2018 Hand Fire were forwarded to IHQ of MoD(Army) on 11.07.2009 which were returned by Army Headquarters vide letter dated 05.10.2009 with an observation that Group 'C' and Group 'D' categories have been merged/upgraded w.e.f. 01.01.2006 as per the recommendations of 6 th CPC and as the Recruitment Rules are under revision, promotion to Class III posts have to be withheld. 3.3 It has been submitted that pay scales of Fire Fighting staff have already been upgraded and nomenclature as per CDS(RP) Rules, 2008 has been changed. The revised nomenclature and pay scales after 6th CPC in respect of Fire Fighting Staff were changed as under:
Sr. Pre-revised nomenclature Pre-revised pay Revised Revised Grade No. scale (Vth CPC) nomenclature Pay (Vith CPC)
(a) Fireman Grade-II Rs.2610-4000 Fireman PB-1 Fireman Grade-I Rs.2650-4000 GP Rs.1900 Rs.2750-4400
(b) Leading Hand Fire Rs.3050-4590 Leading PB-1 Fire Engine Driver Fireman GP Rs.2000
(c) Fire Supervisor Rs.4000-6000 Station PB-1 Officer GP Rs.2800 It has been submitted that as per para 6.4 of 10 OA No.487/2018 DoPT letter No.22011/5/86-Estt.(D) dated 10.04.1989 and Arty Directorate General letter No.A/10059-DPC/SoA/Arty-10B dated 01.06.2009, while promotions will be made in the order of consolidated select list, such promotions will have only prospective effect in cases where the vacancies relate to earlier year(s). The applicant is retired on 31.05.2017 and his promotional vacancy is related to earlier year and not prospective effect and, therefore, the OA has no merits and deserves to be dismissed.
4. The applicant has not filed any rejoinder to the above reply submitted by the respondents.
5. During the arguments, learned counsel Shri R.P. Saxena for the applicant submitted that when the DPC was conducted and the applicant was found fit, the DPC proceedings were forwarded by respondent No.3 to respondent No.2 for his promotion, he should have been promoted under the 11 OA No.487/2018 old rules. However, he has been given only MACP instead of promotion.
6. Learned counsel for the respondents Mrs. Masurkar on the other hand has reiterated the arguments taken in the reply and submitted that the applicant has retired in 2017 and was given MACP. There is no cause of action as the Grade Pay, given to the applicant because of the MACP, was higher than the Grade Pay which he would have got on promotion.
7. We have heard the learned counsels for both sides at length and carefully considered their submissions and perused the pleadings and documents submitted on record.
8. The applicant was appointed as Arty Lascar on 22.03.1979 in the pay scale of Rs.196- 232, was promoted to the post of Fireman Grade II w.e.f. 19.09.1984 and finally to the post of Fireman Grade-I on 28.04.1998. It is not in dispute that when vacancy of Leading Hand fire 12 OA No.487/2018 with the Grade pay of Rs.2000 arose in 2009, his name was considered and recommended by the DPC. However, because of the merger of Group 'C' and Group 'D' posts, the revised pay scale of the Fireman Grade I was Rs.2750-4400 with Grade Pay of Rs.1900 and that of Leading Hand Fire for which the applicant is seeking promotion was Rs.3050-4590 with Grade Pay of Rs.2000 in PB-1. It is also not in dispute that since he could not be promoted in 2009, he was granted all the financial benefits under ACP/MACP Scheme and upgradation in the Grade Pay of Rs.2800 in March, 2009 which was higher than corresponding Grade Pay of Rs.2000 of the promotional post of Leading Hand Fire and, therefore, no financial loss was caused to the applicant.
8.1 We find that since the Recruitment Rules were under revision because of the merger of the scales as recommended by the 6th CPC, the respondent No.3 sent a proposal to respondent 13 OA No.487/2018 No.2 on 21.10.2013 forwarded the DPC proceedings to respondent No.1 on 07.08.2013 in which the name of the applicant was included which were returned by respondent No.1 on 21.10.2013 on the ground that pay scales of Fire Fighting Staff have already been upgraded and nomenclature as per CDS(RP) Rules, 2008 has been changed and amended draft recruitment rules were directed to be submitted. The respondent No.2 vide their letter dated 18.11.2013 have requested the respondent No.1 to clarify whether the DPC Board proceedings of Fire Fighting Staff in Artillery (Army) can be based on the Fire Fighting Staff in Indian Air Force. The respondent No.2 has replied to the respondent No.3 vide their letter dated 12.06.2014 that DPC for Fire Fighting Staff of Headquarters, School of Artillery cannot be convened on the basis of Recruitment Rules applicable for Fire Fighting Staff in Indian Air Force. The respondent No.3 vide letter dated 14 OA No.487/2018 16.02.2016 has communicated to the applicant that he was already granted Grade Pay of Rs.2800/- w.e.f. 22.03.2009 ignoring the previous promotion/upgradation.
9. The DoPT issued a clarification vide their letter No.DOP&T Dy No.3505/CR/2009-Estt(RR) dated 13.08.2009 in which it has been stated in para (iv)that promotions granted in the merged scale during the period 01.01.2006 to the date of amendment of recruitment rules would be ignored since both the posts have been merged/upgraded from 01.01.2006 and given a common scale/grade pay/pay scale. The same was communicated by the Ministry of Defence vide their ID No.410/2009/D(Civ-I), dated 24th August, 2009. These communications have not been challenged. Since on the date of vacancy, there were no recruitment rules notified and old rules were not applicable as the scales were merged as per the recommendations of the 6th CPC, the applicant was 15 OA No.487/2018 not promoted. The respondents have placed reliance on the communication of the respondent No.1 dated 01.06.2009 in which they have referred to the DoPT OM No.22011/8/87-Estt(D) dated 09.04.1996 wherein it is stated that promotion is effective from a prospective date and not retrospective, even in cases where vacancies relate to earlier years, and is made effective from the date of assumption of higher post. The DoPT OM dated 09.04.1996 has not been challenged in this OA. They have also referred to the DoPT OM dated 10.04.1989 wherein it was stated that promotion should be made in the order of the consolidated select list, such promotions will have only prospective effect even in cases where the vacancies relate to earlier year(s).
10. Thus, the above OMs make it clear that an employee has the right to be considered for promotion but promotion will be granted only from the prospective effect and will be effective from 16 OA No.487/2018 the assumption of the charge. In this case, the candidature of the applicant was considered and his name was recommended by the DPC. However, since Recruitment Rules were not framed, he was granted financial upgradation under MACP in which he was given Grade Pay of Rs.2800/- from 22.03.2009 as against the Grade Pay of Rs.2000/- which he should have got in the promotional grade.
11. The Hon'ble Supreme Court in the case of Bihar State Electricity Board and Others Vs. Dharamdeo Das, 2024 SCC Online SC 1768 has considered the similar issue and held that even if there was a vacancy, it would not have automatically created a valuable right in favour of the applicant for claiming retrospective promotion. For sake of convenience, para 29 of the above judgement is extracted herein as under:
"29. In the instant case, records reveal that there was no vacancy to the post of Under Secretary in the appellant- Board on the said post being reduced from six to three. 17 OA No.487/2018 This step was taken by the Board due to administrative exigencies. We do not find any infirmity in the said decision. Even otherwise, assuming that there was a vacancy to the subject posts, it would not have automatically created a valuable right in favour of the respondent for claiming retrospective promotion to the next higher post. It is only when an actual vacancy arose that the respondent was granted the benefit of accelerated promotion and that too on going through the prescribed process." {Emphasis supplied} Thereafter, the Hon'ble Supreme Court has again considered the similar issue in the case of Government of West Bengal and Others Vs. Dr. Amal Satpathi and Others, 2024 OnLine SC 3512 and held in para 21 as under:
"21. While we recognize respondent No.1's right to be considered for promotion, which is a fundamental right under Articles 14 and 16(1) of the Constitution of India, he does not hold an absolute right to the promotion itself. The legal precedents discussed above establish that promotion only becomes effective upon the assumption of duties on the promotional post and not on the date of occurrence of the vacancy or the date of recommendation. Considering that respondent No.1 superannuated before his promotion was effectuated, he is not entitled to retrospective financial benefits associated to the promotional post of Chief Scientific Officer, as he did not serve in that capacity."
12. The above judgements make it clear that an applicant has a right to be considered for promotion which was done by the respondents, however, he does not hold an absolute right to 18 OA No.487/2018 the promotion itself.
13. In view of the law laid down by the Hon'ble Apex Court in the above judgements, we do not find any merit in this OA and the same deserves to be dismissed and is, accordingly, dismissed. Pending MAs, if any, stand closed. No order as to costs.
(Umesh Gajankush) (Shri Krishna)
Member (J) Member (A)
ma.
Digitally signed by Milan Jackson Alphanso
Milan Jackson
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