Central Administrative Tribunal - Jabalpur
Pragati Gogia vs Dept Of Defence on 6 January, 2023
1 OA No.200/710/2021
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.200/710/2021
Jabalpur, this Friday, the 06th day of January, 2023
HON'BLE MR. JUSTICE AKHIL KUMAR SRIVASTAVA, JUDICIAL MEMBER
HON'BLE MR. KUMAR RAJESH CHANDRA, ADMINISTRATIVE MEMBER
Pragati Gogia, D/o Shri Dilip Kumar Gogia, Date of Birth : 26.07.1989,
Working as Chargeman Part-I, 506, Army Base Workshop Jabalpur, R/o-
2271, Dr. Barat Road, Napier Town, Jabalpur (M.P.) - 482001.
-Applicant
(By Advocate - Shri Manoj Sharma, Sr. Advocate assisted by S/Shri
Krishnendra Shukla and Samveg Tripathi)
Versus
1. Union of India through its Secretary, Ministry of Defence, South Block,
New Delhi 110001.
2. Director General of EME (Civ-4), Master General of the Ordnance Branch
Integrated HQ of Ministry of Defence (Army) DHQ PO, New Delhi 110011.
3. Commander Head Quarter Army Base Workshop Group EME (ORG &
Adm.) Sardhana Road, Meerut Cantt. Meerut (UP) - 250001.
4. The Sr. Record Officer, EME Records, C/O CA-3 Section Sikandrabad,
Telangana - 500021.
5. The Commandant & Managing Director 506, Army Base Workshop,
Jabalpur (MP) - 482005.
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2 OA No.200/710/2021
6. Shri Jagat Pal, Chargeman, P. No.4769 through the Commandant &
Managing Director 505, Army Base Workshop, Kirby Place, Delhi
Cantonment - 110010. -Respondents
(By Advocate - Shri D.S. Baghel)
(Date of reserving order : 13.12.2022)
ORDER
By Akhil Kumar Srivastava, JM.
The applicant is aggrieved that she has not been granted in situ promotion on the post of Foreman under Part-I cadre in 506, Army Base Workshop, Jabalpur despite the proposal of respondent No.5.
2. The facts of the case, in brief, are that the applicant was initially appointed as Chargeman on 15.06.2015 and posted at 516, Army Base Workshop Bangalore and thereafter she was transferred to 506, Army Base Workshop, Jabalpur on her own request. The next promotional post of Chargeman is Foreman Part-I, which is filled up 65% by promotion, 20% by direct recruitment and 15% by deputation. The applicant was considered by the DPC for the post of Foreman Part-I against the vacancy of 2021 and in pursuance to the recommendation made by the DPC, the promotion-cum- posting orders were issued on 17.04.2021 (Annexure A-4), wherein the name of the applicant has been reflected at Sr. No.(b) and she has been posted to 509 Army Base Workshop, Agra.
Page 2 of 13 3 OA No.200/710/2021 2.1 Subsequently, on 28.07.2021 (Annexure A-5), a list of promotion-cum- posting of Group 'B' Gazetted non Industrial Personnel centrally controlled Chargeman to Foreman was circulated with the details of vacancies of Foreman in 506 Army Base Workshop as on 17.04.2021. As per the said list, the sanctioned strength of Foreman Part-I in 506, Army Base Workshop Jabalpur is 15 and out of 15 sanctioned post, only 10 are working and 05 posts are lying vacant and out of 10 posts of promotion quota, 9 Foreman Part-I are working and 01 post has been shown vacant.
2.2 Similarly, the sanctioned strength of Foreman Part-II cadre has been shown as 08 and out of 08 sanctioned posts, only 04 are working and 04 posts of Foreman Part-II cadre is lying vacant as on 28.07.2021. 2.3 The applicant submits that after issuance of her promotion-cum-posting order dated 17.04.2021 (Annexure A-4), the respondent No.5 has sent a proposal to the respondent No.3 on 01.05.2021 (Annexure A-2) to grant in-situ promotion to the applicant and retain her in 506 Army Base Workshop Jabalpur itself. However, the same has been declined by the respondents Nos.3 & 4 on the ground that the vacancies available were filled up with in-situ promotion by EME Records in Part-I & II cadre.
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3. Respondents Nos.1 to 5 have filed their reply, wherein they have made the following submissions:
3.1 As per Para 9 of the policy dated 12.08.2016 (Annexure R-I) for posting of Group 'A' & 'B' civilian personnel, the promotion-cum-posting is to be ordered in the sequence in which the names appear in the select panel and all Group 'B' personnel are to be adjusted in-situation subject to availability of vacancies after adjustment of all special cases viz compassionate posting, physically challenged category etc. 3.2 Five vacancies of Foreman (Part-I cadre) in respect of promotion quota were available as on 17.04.2021 in 506 Army Base Workshop, Jabalpur and hence the promotion quota was filled by the incumbents senior to the applicant for the panel year of 2020 vide promotion-cum-posting order dated 17.04.2021.
3.3 The applicant was considered for promotion for the panel year 2021 and not against the vacancy of 2021 and since there was no vacancy available in 506 Army Base Workshop, Jabalpur, the applicant was promoted against the existing vacancies in the Corps of EME and posted to 509 Army Base Workshop, Agra vide order dated 17.04.2021.Page 4 of 13 5 OA No.200/710/2021
3.4 The applicant has never represented with regard to in-situ promotion and the respondent No.5 took suo-motu action by forwarding the proposal for retention of the applicant at 506 Army Base Workshop Jabalpur. The respondent No.3, who is the next higher authority of the applicant examined the case in detail and found that the vacancies available were filled up with in-
situ promotion by the Respondent No.4 in Part-I cadre and hence the proposal sent by the respondent No.5 was returned unactioned. In any case, the proposal on administrative ground do not confer any enforceable right to claim her retention (in-situ promotion) on the basis of such proposal. 3.5 The applicant is not alone the person who has received 'Base Level Repair and Maintenance' training on upgraded L-70 Gun and at the time of forwarding the proposal in respect of the applicant, 09 civil technicians of 506 Army Base Workshop had also undergone the same training. 3.6 The respondent No.6 has been promoted to the post of Foreman against the vacancies occurring in the Corps of EME on 01.07.2022 and posted to 506 Army Base Workshop, Jabalpur vide order dated 18.06.2022 (Annexure A-8) 4.6 As regards the vacancy created as on 01.05.2022 due to retirement of one Foreman Shri Krishna Kumar Verma, the same was created after issuance of Page 5 of 13 6 OA No.200/710/2021 applicant's promotion-cum-posting order dated 17.04.2021 and, therefore, vacancy being future/anticipated cannot be claimed by the applicant.
4. Learned counsel for the applicant argued that a strong recommendation was made by the respondent No.5 to accord in-situ promotion to the applicant at 506 Army Base Workshop, Jabalpur. As per clause 18 and 19 of the policy for posting of Group 'A' & 'B' civilian personnel for specialized job, the proposal of respondent No.5 ought to have been forwarded to the Director General of Electronics and Mechanical Engineer for approval, which has not been done in the applicant's case.
4.1 The promotion-cum posting order in respect to Group 'B' Gazetted non industrial personnel centrally controlled Chargeman to Foreman was issued on 17.04.2021. While the persons who were promoted against the vacancy year of 2020, were given in-situ promotion, the applicant has been discriminated and posted out from Jabalpur despite the availability of one post w.e.f. 01.05.2021 on account of retirement of Shri Krishna Kumar Verma, Foreman Part-I in the month of April, 2021. Moreover, the persons whose names were mentioned in the letter dated 14.08.2021 (Annexure A-1), were promoted against the vacancy year of 2020, whereas the applicant has been promoted for the panel Page 6 of 13 7 OA No.200/710/2021 year 2021 and as per the vacancies position of Foreman circulated vide letter dated 28.07.2021 (Annexure A-5), one post of Foreman Part-I cadre was lying vacant in 506 Army Base Workshop Jabalpur as on 28.07.2021. 4.2 It has also been argued that the respondent No.6, who has been promoted against the vacancy of 2022, has not joined yet though the promotion orders were issued way back in June, 2022.
5. Learned counsel for the respondents in addition to the averments made in the reply has argued that this Original Application is not maintainable under Section 19(1) of the Administrative Tribunals Act, 1985 as the applicant does not come within the definition of 'person aggrieved'. He brought our attention to Para15 of the judgment dated 08.01.2020 passed by the Hon'ble Uttarakhand High Court in Writ Petition (S/B) No.445 of 2016 [(Union of India & another vs. Associations of Class I (Group 'A') Officer & others], wherein it has been held as under:
"15. In examining the question whether the respondents herein (applicants before the Central Administrative Tribunal) had the locus standi to invoke the jurisdiction of the Central Administrative Tribunal for grant of the reliefs sought for them in the O.A, certain provisions of the Administrative Tribunals Act, 1985 needs to be noted. Chapter III of the Administrative Tribunals Act, 1985 (the "1985 Act" for short) relates to the jurisdiction, powers and authority of Tribunals. Section 14 thereunder relates to the jurisdiction, powers and authority of the Central Administrative Tribunal. Chapter IV of the 1985 Act Page 7 of 13 8 OA No.200/710/2021 prescribes the procedure, and Section 19 thereunder relates to applications to the Tribunals. Under Section 19(1), subject to the other provisions of the 1985 Act, a person aggrieved by any order, pertaining to any matter within the jurisdiction of a Tribunal, may make an application to the Tribunal for the redressal of his grievance. It is not any person who can make an application to the Tribunal, but only a "person aggrieved by any order" who is entitled to do so, and that too only for the redressal of his grievance, and not of anyone else."
5.1 Learned counsel for the respondents has also placed on record the judgment of Hon'ble Apex Court in the case of Rajendra Singh vs. State of U.P. & others passed ini Civil Appeal No.4975 of 2009 dated 31.07.2009 to say that the applicant has no vested right to remain posted at a place of her choice nor can she insists that she must be posted at one place or the other.
6. We have heard the learned counsel for the parties and perused the pleadings and the documents available on record.
7. The respondent No.2, i.e. Directorate General of Electronics and Mechanical Engineers had introduced a policy dated 12.08.2016 (Annexure R- I) for posting of Group 'A' & 'B' civilian personnel with the objective to ensure effective and efficient functioning of the units/establishments as also to enhance exposure of activities. As per the policy, the posting of officers is to be done as per their employability based on their academic qualification, courses done, the service experience etc. Further, there is a specific provision Page 8 of 13 9 OA No.200/710/2021 under clause 19 of the said policy for requirement of a particular officer for specific/specialized jobs/hi technology appointments, which reads as under:
"19. Requirement of having a particular officer for specific/specialized jobs/hi technology appointments will be examined on receipt of cases from various establishments. Such cases shall be fwd to Director General of Electronics and Mechanical Engineers with specific recommendations of Senior Electronics and Mechanical Engineers Officer for approval by the Director General of Electronics and Mechanical Engineers."
8. After the issuance of promotion order of the applicant dated 17.04.2021 to Foreman Part-I cadre and her posting to 509 Army Base Workshop, Agra, a proposal (Annexure A-2) was sent by the office of respondent No.5 in terms of the provisions contained in clause 19 of the policy dated. The same is extracted below for ready reference:
"STATEMENT OF CASE FOR IN-SITU PROMOTION AND POSTING IN RESPECT OF P.NO.14693120W CHARGEMAN PRAGATI GOGIA OF 506 ARMY BASE WORKSHOP, JABALPUR INTRODUCTION
1. 506 Army Base Workshop is a Centre of Industrial and Technical Excellence for Armament and Small Arms. The role of 506 Army Base Workshop is to undertake base overhaul and base repairs of armament equipment and small arms like 105/37mm IFG, 105/37mm LFG, 130mm M46 gun, 155mm SOLTAM gun, 155mm FH 77BO2 Bofors and 40mm L-70 guns of entire Indian Army (IA).
2. The 40mm L-70 is the mainstay gun with Army Air Defence. This 40mm L-70 gun has been recently upgraded electronically by M/s BEL Chennai. A team of technicians of 506 ABW headed by P.No14693120W Chargeman Pragati Gogia has been trained at M/s BEL Chennai on Upgraded 40mm L-70 gun. Chareman Pragati Gogia has been promoted to Foreman under Pt-1 cadre and has been posted to 509 Army Base Workshop, Agra with immediate effect. 506 Army Base Workshop will thus lose out on the expertise gained by Chargeman Pragati Gogia in case she moves out to 509 Army Base Workshop, Agra.Page 9 of 13 10 OA No.200/710/2021
Chargeman Pragati Gogia on promotion to Foreman should be retained at 506 Army Base Workshop in organisational interest to handle upgraded and non-upgraded 40mm L-70 gunds.
PROPOSAL
3. It is proposed that sanction be accorded for in-situ promotion and posting in respect of P.No.14693120W Chargeman Pragati Gogia of 506 Army Base Workshop, Jabalpur.
JUSTIFICATION
4. 506 ABW is responsible to undertake base overhaul of variants of Arty guns, 40mm L- 70 AD gun and base repairs of many small arms. The 40mm L-70 Air Defence gun is the mainstay with Army Air Defence. Around 300 qty of 40mm L-70 gun has been upgraded electronically by M/s BEL Chennai since year 2017. Presently 506 ABW is overhauling 40mm L-70 guns and subsequently will be handling upgraded L-70 guns as well. A team of technicians of 506 ABW headed by P.No.14693120W Chargeman Pragati Gogia has been trained at M/s BEL Chennai on Upgraded 40mm L-70 gun (Certificate of training enclosed as Encl-1). Chargeman Pragati Gogia is establishing Servo Technical Testing (STT) facility at 506 ABW for trouble shooting and testing of upgraded L-70 gun system.
5. Chareman Pragati Gogia has been promoted to Foreman under Pt-1 cadre (Panel Year 2021) vide EME Records letter No 1621/T-10/Prom/FM(Pt-I)/82/CA-3 dated 17 Apr 21 (Letter enclosed as Encl-2) and has been posted to 509 Army Base Workshop, Agra with immediate effect. 506 Army Base Workshop will thus lose out on the expertise gained by Chargeman Pragati Gogia in case she moves out to 509 Army Base Workshop, Agra. Also Chargeman Pragati Gogia is actively involved in the overhaul and base repairs of electronics and hydraulics of L-70 gun at present.
6. Moreover, 506 ABW is authorized 23 x Foreman and as on date there are only none posted. It is also pertinent to mention that Personal No. 14691457A Foreman (Pt-1) Krishna Kumar Verma posted in 506 ABW retired on 30 Apr and his vacancy created in 506 ABW.
This aspect has not been considered by EME Records. Moreover, Pragati is senior most (from 506 ABW) in Select panel of Calendar year 2021 (Letter enclosed as Encl-3), she will be eligible for posting in-situ, on promotion if this vacancy created, is considered by EME Records. In view of the above and in the interest of organisation, Chareman Pragati Gogia should be promoted in-situ and posted to 506 Army Base Workshop, Jabalpur.
FINANCIAL EFFECT
7. There shall be no financial effect as the proposal is for in-situ promotion and posting of one Chargeman.
CONCLUSION
8. 40mm L-70 is the mainstay gun with Army Air Defence and base overhaul and base repairs are being undertaken at 506 Army Base Workshop, Jabalpur only. This gun system is being electronically upgraded. To render efficient and effective engg support to this gun system by 506 Army Base Workshop, retention of trained manpower is required. P.No 14693120W Chargeman Pragati Gogia has been trained at M/s BEL Chennai on Upgraded 40mm L-70 gun. It is strongly recommended that sanction be accorded for in-situ promotion Page 10 of 13 11 OA No.200/710/2021 and posting of P.No 14693120W Chargeman Pragati Gogia of 506 Army Base Workshop, Jabalpur."
9. A plain reading of the proposal made by respondent No.5 to respondent No.3, makes it clear that the recommendation for in-situ promotion was made on account of interest of organisation as the applicant has been trained on upgraded 40mm L-70 gun and has also headed over the team of technicians of 506 Army Base Workshop while their training at M/s BEL Chennai on upgraded 40mm L-70 gun. Hence, she was recommended for retention at 506 Army Base Workshop on account of requirement of trained manpower. Not only this, it was also proposed that the applicant could have been adjusted at 506 Army Base Workshop itself on account of creation of one vacancy w.e.f. 01.05.2021 after the retirement of Shri Krishna Kumar Verma. However, both these aspects have been lost sight by the respondent No.3 while issuing the promotion order of the applicant vis-à-vis the persons promoted on same date, i.e. 17.04.2021. Nevertheless, as per the policy guidelines the proposal made by respondent No.5 should have been forwarded to Director General of Electronics and Mechanical Engineers (respondent No.2) for its approval.
10. It is also apparent from record that all the five persons posted at 506 Army Base Workshop, belonging to 2020 panel, were given in-situ promotion Page 11 of 13 12 OA No.200/710/2021 (at the same place) and the applicant was the next incumbent to be considered for promotion. It can safely be said that the applicant was under the legitimate expectation to be retained at same place after in-situ promotion of her seniors and, thus, posting out to the applicant only does not seem to be justified in view of the equal treatment guaranteed under Article 14 of the Constitution of India. Hence, the applicant can certainly said to be aggrieved particularly when she has not been given an equal treatment vis-à-vis persons similarly situated to that of applicant. We also take note of the fact that one post of Foreman Part-I was lying vacant in the 506 Army Base Workshop Jabalpur w.e.f 01.05.2021 on account of retirement of one Shri Krishna Kumar Verma just mere a short span of 13 days from the issuance of promotion-cum-posting order of the applicant and other five persons dated 17.04.2021, and the applicant could have been easily adjusted against that vacant post especially due to the availability of vacancy position as on 28.07.2021 detailed in Annexure A-5. Moreover, when the policy (Annexure A-6) itself provides for requirement of having particular officer likewise the applicant for specialized job for which a strong recommendation was made by the respondent No.5, the authority should have considered such proposal within the parameters of the policy giving full regards to the provision contained in the policy. It is quite Page 12 of 13 13 OA No.200/710/2021 surprising to note that the post in the cadre of Foreman Part-I at 506 Army Base Workshop Jabalpur remained vacant till 18.06.2022 when the promotion- cum-posting order of respondent No.6 was issued and if the applicant could not be granted promotion in-situ earlier, she could have been accommodated during interregnum. In any case, the respondent No.6 has not joined yet as contended by learned counsel for the applicant, which has also not been refuted by learned counsel for the respondents.
11. Having considered the entire facts and material placed before us, we are of the view that the applicant is entitled to be considered for in-situ promotion as Foreman Part-I at 506, Army Base Workshop Jabalpur w.e.f. the date of creation of vacancy on 01.05.2021. Ordered accordingly. Let the necessary exercise and orders in this regard be passed within a period of three months from the date of receipt of a copy of this order.
12. In the result, this Original Application is allowed, without there being any order as to costs.
(Kumar Rajesh Chandra) (Akhil Kumar Srivastava)
Administrative Member Judicial Member
am/-
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