Central Administrative Tribunal - Mumbai
Vivek Hodar vs M/O Defence on 27 February, 2024
Mid
1 OA No. 3599/2014 & 600/2014
CENTRAL ADMINISTRATIVE TRIBUNAL
MUMBAI BENCH, MUMBAL.
ORIGINAL APPLICATION Nos.599/2014 & 600/2014
Dated this tuesday the 07th February, 2024
sd .
CORAM: Ms. Harvinder Kaur Oberoi, Member (J)
Mr. Shri Krishna, Member (A)
OA No.599/2014
1. Chandramany Chinaya Nainu
aged 26 Yrs, working as Tradesman Skilled
at Naval Dockyard Mumbai
& Residing at Qtr No.U/23,
Naval Civilian Housing Colony,
Kanjur Marg (W), Mumbai - 400 078.
2. Shri Laxminarayana Patro
Aged 25 yrs, working as Tradesman Skilled
at Naval Dockyard Mumbai
& residing at Flat No.303,
Shri Sai Leela CHS Ltd,
Diva Hill Road,
Near Prashant Nagar, Diva (E),
Thane - 400 612.
3. Shri Amarjeet Yadav, Aged 27 Yrs
Working as Tradesman Skilled
at Naval Dockyard Mumbai,
& Residing at Room No.67, 2/2
Gorakhpur Chawl, Sangam Nagar,
Antop Hill, Wadala (E),
Mumbai - 400 037.
4. Shri Rajnish Raman
Aged 25 years,
working as Tradesman Skilled
at Naval Dockyard Mumbai
& Residing at C/o Sanjay Maruti Jagdale,
Jai Shriram Colony, Chall No.1,
Room No.1, Haji Malang Road,
Kandivli, Kalyan (EE),
Thane - 421 306.
2 OA No.599/2014 & 600/2014
Shri Jitendra Kumar, Aged 27 Yrs,
Working as Tradesman Skilled
at Naval Dockyard Mumbai
& Residing at C/o Jitendra Kumar Mishra,
Qtr No.T/06, Naval Civilian Housing Colony,
Kanjur Marg ({W),
Mumbai - 400 078. © ... Applicants
( By Advocate Shri R:G. Walia )
VERSUS
The Union of India
Through The Secretary (Defence)
Ministry of Defence,
South Block,
New Delhi -- 110 OO1.
The Admiral Superintendent,
Naval Dockyard,
Shahid Bhagat Singh Road,
Mumbai - 400 023. .
The Officer-in~-Charge
Dockyard apprentice school
Naval Dockyard,
Shahid Bhagat Singh Road,
Mumbai -- 400 023.
The Personal and Administrative Manager,
Shahid Bagat Singh Road,
Naval Dockyard,
Mumbai - 400 023. -.. Respondents
( By Advocate Shri N.K. Rajpurohit )
1.
OA No.600/2014
Shri Vivek Hodar
Aged 29 years
Working as Tradesman Skilled
3 OA No.599/2014 & 600/2014
at Naval Dockyard Mumbai & Residing
at C/711 Shyam Héights, Y.K. Nagar (NX)
100 Feet Bypass, Bolin} Road, Virar (W),
Thane - 401 303
Mrs. Asmita Sohan Negi
27 years, Tradesman Skilled
At Naval Dockyard Mumbai ,
& Residing at Anandvan Society,
Sector-4, Nerul, Navi Mumbai - 400 706.
Arvind Kumar Dubey
Aged - 29 years
Working as Tradesman Skilled
at Naval Dockyard Mumbai
& Residing at : 301-A,
Jai Shiv Ambe Crupa CHS Ltd,
Sai Nagar, Jaibai Road, Katemanivali,
Kalyan (E), Thane - 421 306.
Bhagwan Sadashiv Kadam
Aged 29 years, Tradesman Skilled,
Naval Dockyard Mumbai
& Residing at : C-2/4
Ashtavinayam CHS Ltd,
Sector 48 Nerul (W),
Navi Mumbai ~-- 400 706.
Yogesh Sharma
Aged 28 years, Tradesman Skilled
Naval Dockyard Mumbai
& Residing at C/o Umesh Kumar Bhalotia,
Room No.4, Imandar Building,
Bari Pagodi, Tq-Uran, Dist Raigad,
Pin - 400 702,
Harish Saini
Aged 27 Years,
Tradesman Skilled,
Naval Dockyard, Mumbai.
& Residing at : C/o Krishna Dadaji Patil,
H No.930 Savitri Sadan, Kegoan,
Tq. Uran, Dist:Raigad, Pin - 400 702.
10.
il.
12.
4 OA No.599/2014 & 600/2014
Mrs. Poonam Sandip Jena
Aged 28 years,
Tradesman Skilled,
Naval Dockyard Mumbai
& Residing at : Shiv Premal Cjhawl,
Room No.279, Ganpatipada,
Old Belapur, Near HP Petrol Pump,
Kalwa {E), Pin - 400 605.
Rajesh Kumar
Aged 33 years,
Tradesman Skilled,
Naval Dockyard Mumbai
& Residing at : C/o Mohd Tanvir Naki,
D~3/702 Shirish Lokudyan Complex,
Kalyan (W), Thane -- 421 301.
Sandip Gopi Jena
Aged 28 Years, Tradesman Skiled,
Naval Dockyard Mumbai
& Residing at : Shiv Premal Chawl,
Room No.279, Ganapatipada,
Old Belapur, Near HP Petrol Pump,
Kalwa (E), Pin --- 400 605.
Mrs. Anupa Vivek Hodar,
Aged 29 years,
Working as Tradesman Skilled
Naval Dockyard Mumbai
& Residing at. C/711 Shyam Heights
Y.K. Nagar, (NX), 100 Feet Bypass,
Bolinj Road, Virar (W), Thane - 401 303.
Ravindra Praful Nahak
Aged 28 years, Tradesman Skilled,
Naval Dockyard Mumbai
& Residing at : c/o Arun gouda
Room No.7 Fagu Yadav Chawl,
Farid Nagar, P.N. Road, Bhandup (W)
Mumbai - 400 078.
¥
Santosh Narsingh Panigrahi
Aged 29 years, Tradesman Skilled,
Naval Dockyard Mumbai
& Residing at : 10/2 Ramesh Sadan,
13.
14.
L5.
16.
17.
18.
5 OA No.599/2014 & 600/2014
Ganesh Nagar, Tisgoan Road,
Near Bylokgram, Kalyan (E),
Pin -- 421 306.
Harekrishna Samanta,
Aged 28 years, Tradesman Skilled,
Naval Dockyard Mumbai
& Residing at : C/o SC Swarnakar,
104 Gulmohar Lokvitka,
Kalyan (E), Thane ~ 421 306.
Daulat Sashibhusan Gauda
Aged 29 years, Tradesman Skilled,
Naval Dockyard Mumbai
& Residing at : 142/3 Naval
Civilian Housing Colony, LBS Marg,
Kanjur Marg (W), Mumbai - 400 078.
Sujit Shantaram Dekhane
Aged 28 years, Tradesman Skilled,
Naval Dockyard Mumbai
& Residing at : Plot No.12,
G/6, Baiganwadi, Govandi,
Mumbai - 400 043.
Mandar Laxman Naik
Aged 27 years, Tradesman skilled,
Naval Dockyard Mumbai
& Residing at : A/401 Prakash CHS Ltd,
Dindayal Cross Road, Dombivli (W),
Pin - 421 202.
Venumohan Chandramohan
Aged.27 years, Tradesman Skilled,
Naval Dockyard Mumbai
& Residing at : Room No.9,
Hemakunj Chawl, Pratapnagar,
Bhandup (W), Mumbai -- 400 078.
Manoranjan Sahu
Aged 28 years, Tradesman Skilled,
Naval Dockyard Mumbai
& Residing at : C/o Geeta Kailsh Panigrahi
Room No.7, Chawl No.5, Surji Vallabhadas,
Hariyali Village, Vikroli (E),
19.
20.
21.
2a.
23.
24.
6 OA No.599/2014 & 600/2014
Mumbai - 400 083.
Dattatray Dadabahu Pachpute
Aged 28 years, Tradesman Skilled,
Naval Dockyard Mumbai
& Residing at : Flat No.105,
Harshid Appartment, Amrai, Vijay Nagar,
Near Amraj Polic Chokie, Tisgoan,
Kalyan {E), Pin - 421 306.
Amit Kumar .
Aged 27 years, Tradesman Skilled,
Naval Dockyard Mumbai
& Residing at : A-2/33 DGOA
Residential Complex,
Rifle Range Road, Ghatkopar (W),
Mumbai -- 400 086,
Purushottam Baleya Kanigini
Aged 27 years, Tradesman Skilled,
Naval Dockyard Mumbai
& Residing at : Qtr No.134/6 Naval
Civilian Housing Colony,
Kanjur Marg (W), Mumbai - 400 078.
Akshay Kumar Singh
Aged 26 years, Tradesman Skilled,
Naval Dockyard Mumbai
& Residing at : B/401, Nebula Park,
Tanaji Nagar, Birla College Road,
Opp. Mohan Heights, Kalyan (W),
Thane -- 421 301.
Mukesh Kumar
Aged 28 years, Tradesman Skilled,
Naval Dockyard Mumbai
& Residing at : c/o Ramanand Rajak
Flat No.201, Swastik Appartment-B,
Cabin road, Navre Nagar,
Ambernath (EF), Pin - 421 501.
Vaibhav Chandrakant Bhambid
Aged 29 years, Tradesman Skilled,
Naval Dockyard Mumbai
& Residing at : Morya Homes CHS Ltd
Transit Camp, Room No.216,
25.
26.
J27,
28.
29.
30.
7 OA No.599/2014 & 600/2014
Near Lakme Company,
Govandi Station Road,
Govandi (E), Mumbai --- 400 088.
K.V. Durgaprasad
Aged 28 years, Tradesman Skilled,
Naval Dockyard Mumbai
& Residing at : Room No.604, B Wing,
Kamal Park CHS Ltd., Near Mangatram,
LBS Marg, Bhandup,
Mumbai ---- 400 078.
Rinku Kumar
Aged 28 years, Tradesman Skilled,
Naval Dockyard Mumbai
& Residing at : B/401, Nebula Park,
Tanaji Nagar, Birla College Road,
Opp. Mohan Heights, Kalyan (W),
Thane - 421 301.
Hemnath Ashok
Aged 26 years, Tradesman Skilled,
Naval Dockyard Mumbai
& Residing at : C/o Shine
Shashidharan Sreejisangh,
A/501 Sector-7, Khanda Colony,
New Panvel -- 410 206.
Sanjay Kiran Bhalerao
Aged 30 years, Tradesman Skilled, ©
Naval Dockyard Mumbai
& Residing at : 304 Shubham CHS Ltd,
Barrage Road, Badlapur (W),
Pin ~ 421 503.
Naresh Yadav
Aged 29 years, Tradesman Skilled,
Naval Dockyard Mumbai
& Residing at : Building No.530,
Room No.15, chuna Bhatti,
Naval Station, Karanja, Tq:Uran,
Dist:Raigad, Pin - 400 704.
Shatrughna Sahu
Aged 26 years, Tradesman Skilled,
31.
32.
33.
34.
35.
8 OA No.599/2014 & 600/2014
Naval Dockyard Mumbai
& Residing at : L-301, Balaji Residency,
Adai village, Tq. Panvel,
Dist-Raigad, Pin - 410 206.
Nagesh Ramchandra Kamble
Aged 28 years, Tradesman Skilled,
Naval Dockyard Mumbai
& Residing at : L-301, Balaji Residency,
Adai village, Tq. Panvel,
Dist-Raigad, Pin ~- 410 206.
Sanjoy Das
Aged 30 years, Tradesman Skilled,
Naval Dockyard Mumbai
& Residing at : Room No.109,
Sai Kripa Apartment,
Behind Shankar Mandir,
Haji Malank Road, Nativali,
Kalyan (E), Thane -- 421 306.
P.P.V. Ranganayakulu
Aged 29 years, Tradesman Skilled,
Naval Dockyard Mumbai
& Residing at : Room No.604 B Wing,
Kamal Park CHS Ltd, Near Mangatram,
LBS Marg, Bhandup (W),
Mumbai ~ 400 078.
Mrs. Pragati Sandeep Shedge
Aged 28 years, Tradesman Skilled,
Naval Dockyard Mumbai
& Residing at : 303 New Sindhudurga
CHS Ltd, Chinchodyacha Pada, Subash Road,
Dombivli (W), Pin - 421 202,
Abhinav Kumar
Aged 25 years, Tradesman Skilled,
Naval Dockyard Mumbai
& Residing at : Shree Complex,
Phase-3, Building A/12, Flat No.704,
Adhar Wadi, Jail Gate Road,
Kalyan (W), Thane --- 421 301.
9 OA No. 599/2014 & 600/2014
36. Abhay Kiransinh Chavan
Aged 29 years, Tradesman Skilled,
Naval Dockyard Mumbai
& Residing at : F/47, 1/1,
Anandvan Society, Nerul,
Sector-4, Navi Mumbai ~- 400 706. ... Applicants
( By Advocate Shri R.G. Walia )
VERSUS
1. The Union of India
Through The Secretary (Defence)
Ministry of Defence,
South Block,
New Delhi - 110 001.
2. The Admiral Superintendent,
Naval Dockyard,
Shahid Bhagat Singh Road,
Mumbai --- 400 023.
3. The Officer-in-Charge
Dockyard apprentice school
Naval Dockyard,
Shahid Bhagat Singh Road,
Mumbai ~ 400 023.
4. The Personal and Administrative Manager,
Shahid Bagat Singh Road,
Naval Dockyard, ;
Mumbai ~ 400 023. -.. Respondents
(By Advocate Shri N.K. Rajpurohit)
ORDER
Per: Ms. Harvinder Kaur Oberoi, Member (J)
With the consent of both parties, OA Nos.599/2014 & 600/2014 were heard together and are a ae 10 OA No.599/2014 & 600/2014 being decided by this common order. OA 599/2014 is being taken up as a lead case. Applicants in OA Nos.599/2014 & 600/2014 have prayed for the following Similar reliefs:-
"(@) That this Hon'ble Tribunal be pleased to quash and set aside the impugned order dated 11.08.2011 and direct the respondents to fit the applicants on the basis of marks obtained by them in their apprenticeship as per the DTM 117 of 1999 along with all consequential benefits including further promotion as was done in respect of their erstwhile seniors 04, 05, 06 and 07 batches, all of which have commenced training post 2000 after issue of SRO.
(6) Arrears with 18% interest thereon be paid to the applicants.
(c) Such other order and further orders as may be deemed fit and proper in the facts and circumstances of the case be passed.
(d) Cost of this OA be provided for."
é, Issue in the present OA involves the fitment of the apprentices on the basis of the marks/gradings obtained by them, on their regular appointment in the Dockyard.
3. Learned counsel for the applicants. has submitted that applicants had applied for apprenticeship in response to the Advertisement issued in the Employment News in the first week of October 2005, under different trades. Applicants, who are five in number in OA No.599/2014, had applied for one year training whereas the applicants in OA Y 1] OA No. 599/2014 & 600/2014 No.600/2014 had applied for two years training programme. Both programmes were conducted by the Naval Dockyard Apprentice School.
4, Applicants, in the first OA No.599/2014, completed their training in April, . 2006 and likewise the applicants, in OA No.600/2014, completed their training in April, 2007. On completion of their training, the apprentices are assessed and graded as per their performance, during their training and examinations.
5. Counsel .§ appearing for the applicants submitted that initially the grading system was governed under the Dockyard Memo of '06/85. This Dockyard Memo was superseded by the next Dockyard Memo of 04/97. Thereafter, Dockyard | Temporary Memorandum (DTM) 117/99 was issued on 21.09.1999 which was superseded by the Dockyard Permanent Order (DPO) of 2/2007 issued on 19.05.2007. The contention of the applicants is that applicants were inducted in the training programme by the Naval Apprenticeship School in 2005. That at the relevant time, Dockyard Temporary Memorandum (DTM) 117/99, issued on 21.09.1999, was in vogue. Prior to the applicants tf | 12 OA No.599/2014 & 600/2014 induction in 2005, there have been other senior batches No. 04,05,06,and 07 who were inducted in or after the year 2000 before 2005. These batches have been graded under DTM 117/99 whereas the Same has . been denied to the applicants.
6. Counsel submitted that the training programme includes periodical assessment which is done throughout the training period. The applicants submit that the final grading achieved by the candidate determines the post/pay scale on which the applicant would be absorbed. Applicants submit that after completion of their training and at the time of appointment, they were granted increments and other benefits in tune with DPO 2/2007 instead of DTM 117/99. Grading in tune with DTM 117/99 was granted vide corrigendum, however, subsequently vide the impugned order issued in 2011, this benefit was withdrawn/cancelled by applying SRO 150/2000.
7. Counsel submits that DPO 2/2007 was issued on 19.05.2007 i.e. after applicants had completed their training, therefore, the same cannot be made applicable on them as throughout their training, they were assessed under DTM 117/99. Counsel for the 13 OA No.599/2014 & 600/2014 applicants while pointing to the impugned order read para Nos.2 and 3 of the impugned order and submitted that at the time of the initial appointment of the applicants, the applicants were granted the increments and grades as per the DPO 02/2007 instead of DIM 117/99. Since the same was not applicable, the respondents themselves were 'pleased to issue a corrigendum No.151/2011 for applicants of OA No.599/2014 and Corrigendum WNo.150/2011 for the applicants in OA No.600/2014. As per - these corrigendums, the grades of the applicants were revised and re-calculated as per DTM 117/99. For example, applicant No.1 of OA No.599/2014, who had been given the grade "Skilled with one increment" was revised to "Higher grade of HSK-II with Nil increment". That after issuance of this corrigendum, the applicants were satisfied that they have been granted the benefits correctly. However, vide the impugned order dated 11 August, 2011, this corrigendum was cancelled and SRO 150/2000 was applied on the applicants. As per SRO 1500/2000, respondents have been marked/granted "Skilled grade".
This has been given to all applicants/candidates, 14 OA No.599/2014 & 600/2014 irrespective of the gradings achieved by each individual. According to applicants, this action of the respondents is in violation of the law and Settled case law. Most of which is of the senior batches of the applicants. We shall refer to the case law a little later.
8. Per Contra, counsel appearing for respondents has raised a preliminary objection with respect to the limitation. The impugned order was issued on 118 August, 2011 and the same has been challenged vide the OAs filed in 2014. He submitted that the cause of action, if any, had initially arisen in the year 2008 when applicants were appointed as per DPO 02/2007 and if not then, atleast in the year 2011, when the corrigendum was issued and DIM 117/99 was applied. Thereafter, when the same was withdrawn vide the impugned order dated 11% August, 2011. He submits that the OAs have been filed in the year 2014, as such, there is evident delay in approaching the Tribunal and, therefore, the Original Applications be rejected on this ground alone.
9, Further the counsel defended action of the respondents in issuing the impugned order and 15 OA No.599/2014 & 600/2014 submitted that RRs were published in the Gazette vide SRO 150/2000 on O015* June, 2000 SRO are as under:-
. Relevant excerpts of "S.R.O.150- In exercise of the powers conferred by the proviso to article 309 of the Constitution and it is supersession of the Navy Group 'C" and 'D' Industrial Posts (Tradesmen and Labourers) Recruitment Rules, 1979, in so far as they relate to the posts of Tradesman Highly Skilled Grade-I, If, Tradesman Skilled, Semi Skilled Worker ...Unskilled Labourer, the President hereby makes the following rules regulating the method of recruitment to certain Group 'C' and 'D' posts in the Navy, Ministry of Defence, namely:-
1.
Short title and commencement-(1) These rules may be called the Navy Group 'C" & 'D Industrial Posts (Tradesmen and Labourers) Recruitment Rules, 2000.
Name of the post Method of recruitment whether by direct recruitment or by absorption or by promotion and percentage of the posts to be filled by various methods Feeder Cadre
1. Tradesman Highly Skilled Grade -1 failing which by of Ex-
By promotion deputation/re-employment servicemen
- | Examination.
Promotion: Tradesman Highly Skilled Grade-II with 03(three) years regular service in the grade and in the réspective trade also and who have passed in a departmental qualifying test to become eligible for| consideration for promotion qualifying marks of which shall be 50% aggregate, failing that Tradesman having 04(four) years combined service in the grade of Highly Skilled Grade-IE & Skilled Grade and who have passed in the Departmental Qualifying
2.Tradesman Highly Skilled Grade II By promotion failing which by deputation/re-employment of Ex-
servicemen Promotion:Tradesman Highly Skilled Grade- | I with O5(five) years regular service in the grade and in the respective trade also and who have passed in a departmental qualifying test to become eligible for consideration for promotion, qualifying marks of which shall be 50% aggregate, failing that Tradesman having O8(eight) years combined service in the grade of Highly Skilled Grade & Semi-Skilled Grade and who have passed in the Departmental Qualifying Examination.
3. Tradesman Skilled Designated Trade:60% by absorption of ex-Naval Apprentices of Designated Trades and 40% by promotion failing which by direct recruitment.
Promotion:Semi-Skilled Workers -- with 04(four) years regular services in the grade and in the respective trade also having a pay scale of Rs.2650-65-3300-70-4000 and who have passed in a departmental qualifying test to become eligible for consideration for 16 OA No.599/2014 & 600/2014 ~ promotion, qualifying marks of which shall be 50% aggregate.
4 Senior Skilled] By promotion failing which by direct} Promotion:Unskilled-Labourers with Worker recruitment 04(four) years regular services in the grade and in respective trade also and who have passed in a departmental qualifying test to become eligible for consideration for promotion, qualifying marks of which shall be 50% aggregate.
5.Unskilied By absorption failing which direct] Absorption:Group D Employees of the Navy Labourer recruitment or persons serving in analogous, equivalent or higher grades in the lower formations of the Defence services with at least 5(five) years regular service in the pay scale of Rs.2550-55-2660-60-3200..
Counsel, while relying upon the SRO above, submitted that grade of HSK is a promotional grade and, therefore, the same could not have been granted at the time of appointment to the applicants. He submits that the SRO has precedence over DTM and DPOs issued by the respondents from time to time. That the mistake committed by respondents in granting grades as per DIM and DPOs to the senior batches of the applicants has been finally corrected vide the impugned order.
10. . Furthermore, it was submitted that no right had accrued to the applicants to claim grading as per DTM 117/99, Since the advertisement had not mentioned the grade/DTM/DPO under which the applicants would be appointed. Learned counsel for the respondents submits that as per the SRO, the grade of HSK-I and 17 OA No.599/2014 & 600/2014 HSK-II are promotional grades, over and above the skilled grade. He. submits that the appointment letters dated 18th December, 2008 in the case of applicant No.1 in OA No.599/2014 itself stated that the applicant No.1 was appointed as a Welder in the skilled grade on provisional basis. He submits that the corrigendum was issued on 04t4 February, 2011 and the skilled grade with one increment for the applicant No.1 was directed to be read as HSK-If with Nil increment. He submits on instructions that although the corrigendum was issued but the actual financial benefits of the said corrigendum were never transferred to the applicants. He has relied upon the decision of the Tribunal in batch matter OA _No.369/2009 & Ors. [G. Ravisankar & Ors. Vs. UOL, Ministry of Defence, ND _& Ors.] dated 26" April, 2013 to submit that the DTM 117/99 was not issued with prior approval of the competent authority and that the said DTM being. not in consonance with the SRO does not give any legal right of the applicants and could not have been made applicable on the applicants.
11. Counsel for the applicants in rejoinder relied upon para 6 of the Dockyard Permanent Memo SERRE cour 18 OA No,599/2014 & 600/2014 (DPO) 117/99 wherein the grading of the apprentices is earmarked/fixed as per the marks/performance of the candidate. A chart has been provided as per which the grades are granted as per the total percentage achieved. He submits that the grade of HSK-II is not a promotional grade rather the same is granted on the basis of the performance of the apprentices. Whosoever is able to get 70% and above marks in the final assessment is granted the HSK-II grade. Anybody who gets above 80% is granted HSK-II with one increment and a candidate getting 85% and above is appointed under HSK - II with two increments.
12. On the objection of limitation, applicants state that they had submitted their representations against the impugned orders which were ultimately rejected in the year 2013. In 2014 the OAs were filed, as such, there is no delay in approaching the Tribunal. Applicants have relied upon the judgments of the Hon'ble Apex Court in the case of Union of India _ and Others Vs. M.K. Sarkar, (2010) 1 SCC(L&S) 1126 and also D.C.8. Negi Vs. Union of india and Others, (2019) 1 SCC (L&S) 321 in this regard and submit that as the impugned action of the respondents 19 OA No.599/2014 & 600/2014 involves financial relief which will impact their salary, cause of action arises each month.
13. We have perused the documents and heard the arguments at length.
14. Both parties have placed reliance on the order in QA No.369/2009 & Ors. [G. Ravisankar & Ors. Vs, UOT, | Ministry of Defence, ND & Ors] dated 26% April, 2013, whereby a batch of OAs was decided wherein similar issue was raised. In those OAs, the issue was whether the. grading to the applicants therein, ought to be in terms of Dockyard Memorandum 6/1985 only. Simultaneously prayer for quashing of Dockyard Temporary Memorandum 4/1997, Dockyard "Temporary Memorandum 35/1997 and Dockyard Temporary Memorandum 117/1999 was sought. Contention of the applicants therein was that they had wrongly been graded under DTM 117/1999 instead of Dockyard Memorandum 6/1985. Whereas the specific case of the respondents therein was that the Naval Dockyard has been applying Dockyard Temporary Memorandum/Temporary Dockyard Memoranda, promulgated from time to time, while appointing Ex-Apprentices as employees in Skilled (SKL)/Highly Skilled (HSK) grade, and not from the 20 OA No.599/2014 & 600/2014 date of commencement of training in Dockyard Apprentice School. This being done in accordance with statutory requirements and in terms of the provisions contained in the Apprentice Act, 1961. It. was also contended by the respondents that the gradation of the candidates is being carried out by the Dockyard School on the basis of their performance in NCVT Examination, Terminal Examination and Internal Assessment by Officer~in-Charge on the basis of their conduct and discipline, participation in sports, NCC etc. as specified.
15. The Admiral Superintendent of the Naval Dockyard, being the Administrative Authority of the Naval Dockyard at Bombay, is responsible for the day to day administration and maintenance of law and order within the premises as empowered by the prescribed Statute, Rules and Regulations. The administrative directives issued in the form of Dockyard memoranda, have the force of law in accordance with sub para 3 of para 1 of Article 13 of the Constitution of India. Applicants therein had commenced their apprenticeship training on Apr Ol, 1998 and completed the two year apprenticeship course 21 OA No.599/2014 & 600/2014 on May 31, 2000. Therefore, the issue was that they ought to be graded Dockyard Memorandum 6/1985 instead of DTM 117/99. That ultimately the Tribunal vide order dated 16° June, 2003 upheld action of the respondents in applying the gradation system as applicable at the relevant point of time. The order dated 16° June, 2003 passed by the Tribunal was challenged before the Hon'ble High Court in Union of India through the Secretary, Ministry of Defence, New Delhi --1 & Ors Vs, Shri Raghubir Omprakash Singh & 76 Others, Writ Petition No.638/2003 decided on 10 April, 2008.
16. The present OAs involve identical questions. With the passage of time DTM 117/99 has been superseded by DPO 07/2007. Applicants are claiming gradation under DTM 117/99 instead of DPO 07/2007 for the same reason that they had entered the Apprentice training school in 2005 when DTM 117/99 was in vogue. However, there is a distinct change in the stand of the respondents. Before adverting to the stand of the respondents in the present OAs, it would be. appropriate to note the salient features of the DTM 117/99 issued on 21.09.1999, under which grades had to be allocated with or without increment as follows:
22 OA No.599/2014 & 6060/2014S.No. | Total Performance (TP) Grade | Eligible for} Additional Awarded Employment as_| Increments 1% Attempt 24/3"4 Attempt
(i) 85 & above © - H2 HSK 2
(ii) (80 TO 84.99 - H1 HSK II i
(iii) | 70 TO 79.99 - H HSK II NIL
(iv) |65 TO 69.99 85 & ABOVE |S82 SKL 2
(v) |50 TO 64.99 70 TO 84.99 |S1 SKL 1
(vi) (45 TO 49.99 50 TO 69.99 |S SKL NIL
(vii) | Below 45 Below 50 U Unfit for|-
employment Later Admiral Superintendent issued DPO 02/2007 dated 19.05.2007, under which grades had to' be allocated as under: -
S.No. Total Performance (TP) Grade Eligible for Additional Awarded { Employment as | Increments 1 Attempt 2¢/3"4 Attempt
(i) 75 & above |. 85 & above $3 SKL 2
(ii) 60 to 74.99 75 to 84.99 $2 SKL I (iit) 45 to 59.99 50 to 74.99 Sl SKL NIL
(iv) Below 45 Below 50 Ui. Unfit for "-
employment This order supersedes Dockyard 'Temporary Memorandum No.117/99."
17. One thing is clear that DTM 117/99 is rather beneficial than DPO 02/2007. Counsel for the applicants has heavily relied upon the judgments of the Hon'ble Bombay High Court in the case of Union of | 23 OA No.599/2014 & 600/201 4 India through the Secretary, Ministry of Defence, New Delhi -- I & Ors Vs. Shri Raghubir Omprakash Singh & 76 Others (supra). Relevant part is reproduced hereinunder:
". From these authorities, it is clear that the criteria.of the selection cannot be altered in the middle or after process of selection has commenced. In the present case, the selection process was determined and certain scales and grades were prescribed by DM 6/85. If they are read with clause 'e' in paragraph 15 of the contract signed by the apprentices, it is clear that apprentices while entering into that contract were assured about the particular process of selection and allotment of particular grades on the basis of their merits in performance. However, by the subsequent DTMs, not only the whole procedure was changed but the grades and scales were also modified to the detriment of those apprentices. It appears that due to this promise or assurance incorporated in the form of DM 6/85 read with terms of the contract, the concerned apprentices had legitimate expectation to be awarded particular grades and increments based on their performance as per prevailing selection process. The petitioner could not amend or change the said procedure to the detriment of the concerned apprentices. --
10. It is also material to note that while DM 6/85 was issued with approval of Head Quarters office and, therefore, even though it contains administrative instructions, it has certain sanctity. It could not be modified by issuing temporary memo without approval of Head Quarter's office. Therefore, it can be said that Admiral Superintendent could not supersede DM 6/85, which was. issued with approval of the Head Quarter's office. In view of this, it may be held that the supersession of DM 6 of 85 was not valid, atleast in respect _of apprentices, who had entered into apprenticeship contract when DM 6/85 was in force. Therefore, even if subsequent DTMs could be valid in respect of persons joining as apprentices after_issuance of these DTMs, such DTM could not be given retrospective effect in respect of apprentices, who had already joined when DM 6/85 was in force."
(Emphasis supplied) Tn view of the law as settled above by the Hon'ble High Court, the DTM/DPO in force on the date the 24 OA No.599/2014 & 600/2014 candidate enters the school of apprenticeship would be relevant to regulate his grade on appointment/absorption. Applicants submitted that when the corrigendum was issued financial benefit under the corrigendum was received at least by one Shri D.D Pachpute. Therefore, it is denied that the corrigendum was withdrawn before the benefits could be received by the applicants.
18. Now herein shift in the stand of the respondents vis-a-vis their earlier stand becomes relevant. Now the respondents submit that the SRO 150 issued on O1st June, 2000 holds precedence over the DTM/DPO. Respondents submit that the SRO has been issued under Article 309 of the Constitution of India. Therefore, the DTM/DPO issued by the Admiral Superintendent in exercise of delegated powers cannot overrule the SRO. How the DTM/DPO continued to be issued and put to use for the senior batches 04,05,06 and O7 between the year 2000 to 2005 has not been explained. Furthermore, SRO was in existence when the DPO 02/2007 was issued. How the Admiral superintendent issued the DPO 02/2007, which is more beneficial to the applicants, when compared to the 25 OA No. 599/2014 & 600/201 4 SRO remains unexplained. The DPO 02/2007 allows appointment in SKL with increments, based on performance. This is contrary to the RRs which do not provide any incentive for good performance during apprenticeship. As per the SRO, only requirement is successfully completing the apprenticeship course. Once course of candidate is complete, he becomes eligible for appointment. It is surprising that the SRO was in existence when the earlier OA and Writ Petition referred to above was decided, however, the same was never brought to the notice of the Tribunal or the High Court.
19, During the course of arguments on 07.02.2024, we had directed respondents. to produce the rules under which the authorities/powers had been issuing DTM /DPO from time to time. Counsel for the respondents has produced a letter dated 06.02.2024 whereby he has been informed that DTM and DPOs were issued under delegated powers vested in Admiral Superintendent by Naval Headquarters order dated 04.08.1979. These local orders are only meant to amplify the higher orders and cannot take precedence over the Statutory Rules/laws.
26 OA No.599/2014 & 600/201420. Relevant issue for our purpose is as to which shall hold superintendence. DPO issued by the Admiral Superintendent or the SRO issued under Article 309 of the Constitution. Somewhat similar situation was before the Apex Court in the case of S&.
L. Sachdev & Anr. Vs. Union of India & Ors., reported in /98] ee SCR(D 971. The Hon'ble Apex Court has held as under:-
"Apart from this consideration, we are unable to understand how the Director General could issue any directive which is inconsistent with the Recruitment Rules of 1969 framed by the President in the exercise of his powers under Article 309 of the Constitution. Those rules do not provide for the kind of classification which is made by the Director General by his letters to the Heads of respective Circles of the new organisation. It may be recalled that the Recruitment Rules only provide jor a classification on the basis of the length of service in the new organisation. Any directive which goes beyond it and superimposes a new criterion on the Rules will be bad as lacking in jurisdiction. No one can issue a direction which, in substance and effect, amounts to an amendment of the Rules made by the President under Article 309, That is elementary. We are unable to accept the learned Attorney General's submission that the directive of the Director General is aimed at further and better implementation of the Recruitment Rules. Clearly, it introduces an amendment to the Rules by prescribing one more test for determining whether U.D.Cs. drawn from the Audit Offices are eligible jor promotion to the Selection grade/Head Clerks Cadre."
21. In State of i Maharashtra _ ys, Jagannath _Achyut Karandikar, 1989 SCC (SUPP) I 393, also the Apex Court held as under
"Executive instructions cannot amend or supersede the Statutory rules or add something therein, nor the orders be issued in contravention of the statutory rules for the reason that an administrative instruction is not a statutory Rule nor does it have any force of law; while Statutory rules have full force of law provided the same are not in conflict with the provisions of the Act."27 OA No.5 99/2014 & 600/2014
22. In Secretary, State of Karnatka and Others Vs. Umadevi and Others, AIR 2006 SC 1806, the Apex Court held as under
"5, The power of a State as an employer is more limited than that of a private employer inasmuch as it is subjected to constitutional limitations and cannot be exercised arbitrarily (See Basu's Shorter Constitution of india). Article 309 of the Constitution gives the Government the power to frame rules for the purpose of laying down the.conditions of service and recruitment of persons to be appointed to public services and posts in connection with the affairs of the Union or any of the States. That Article contemplates the drawing up of a procedure and rules to regulate the recruitment and regulate the service conditions of appointees appointed to public posts. It is well acknowledged that because of this, the entire process of recruitment for services is controlled by detailed procedure which specify the necessary qualifications, the mode of appointment etc. If rules have been made under Article 309 of the Constitution, then the Government can make appointments only in accordance with the rules..."
23. In the present case "DIM/DPOs were issued from time to time and were in use, however once the SRO 150/2000 was issued under Article 309, the Admiral Superintendent could not in exercise of his delegated powers issue such instructions which were inconsistent with the SRO. Therefore, the DPO 02/2007 to the extent the same is inconsistent with the SRO cannot be sustained. DPO/DTM are required to regulate the course and its activities and even discipline in the Naval Dockyard School. However, the same cannot grant a benefit not provided in the RRs/SRO. In view of our discussion above, we find that the executive 28 OA No.599/2014 & 600/2014 instructions will not override or prevail over the statute or statutory rules framed while exercising power under Article 309 of the Constitution of India. 24, Taking totality of the facts and circumstances of the case discussed above, we do not find any merit in these OAs. Accordingly, the same are dismissed. Pending MAs, if any, Stand closed. No costs.
i (Mr. Shri Krishna) (Harvilider Kaur Oberoi) Member (A) Member (J) ma.