Central Administrative Tribunal - Mumbai
Date Of Decision:- 5.12.2013 vs Union Of India on 5 December, 2013
1 OA No.431/2008 CENTRAL ADMINISTRATIVE TRIBUNAL, BOMBAY BENCH, MUMBAI. ORIGINAL APPLICATION NO.: 431 OF 2008 Date of Decision:- 5.12.2013 CORAM :HON'BLE SMT CHAMELI MAJUMDAR, MEMBER(J) HON'BLE DR. MRUTYUNJAY SARANGI, MEMBER (A) Shri Devram Baburao Bhangre (590041) Ammunition Factory, Khadki, Pune 3. R/at. H Type 34/B, Range Hilla, Pune 411 020. ... Applicant (By Advocate Shri R.C. Ravlani) VERSUS 1. Union of India, Through the Secretary, Department of Defence Production, South Block, New Delhi 110 011. 2. The Chairman, Ordnance Factories Board 10-A, Shaheed Khudiram Bose Road, Kolkata 700 001. 3. The General Manager, Ammunition Factory, Khadki, Pune 411 003. 4. Shri D.S. Gaikwad Driver Fire Brigade Gr.I, Fire Brigade Section, Ammunition Factory, Khadki, Pune 411 003. 5. Shri D.K. Kamble Driver Fire Brigade, Gr.I, Fire Brigade Section, Ammunition Factory, Khadki, Pune 411 003. ... Respondents (By Advocate Shri R.R. Shetty) 2 OA No.431/2008 O R D E R (ORAL) Per: Smt. Chameli Majumdar, Member (J)
The applicant, working as Driver in Fire Brigade, Ammunition Factory, Khadki, Pune-3, has filed this application seeking for the following reliefs:-
1. to treat the applicant as Driver FB, Grade II only
2. to rectify the seniority of the applicant, wrongly granted in the grade of CMD (OG),
3. to continue, seniority of the applicant in his original grade as Driver F.B. Gr.II
4. grant the consequential benefits, i.e. Financial upgradation under ACP scheme, and promotion to higher grades, at par with his juniors.
5. direct the respondents to pay the arrears of pay and allowances, consequent to (4) above,
6. The Hon'ble Tribunal may be pleased to pass any other orders, as deemed necessary in the interest of justice.
2. Briefly stated the case as made out by the applicant is that the applicant was appointed as Driver Fire Brigade (FB) Grade-II on 02.05.1990 in Special Recruitment Drive in ST vacancies and posted at Fire Brigade section. The applicant has annexed his appointment letter dated 25.04.1990. In the appointment letter, it is mentioned that the applicant was offered an appointment as Driver (FB) Grade-II at Ammunition Factory, Khadki on a 3 OA No.431/2008 starting pay of Rs.950/-per month in the scale of Rs.950-20-1150-EB-25-1500/-. The applicant, thereafter, passed the departmental examination for the post of 'Civilian Motor Driver' (CMD in short) in the year 1998 and was appointed as CMD (OG) with effect from 01.06.1998. The pay scale of both the posts i.e. Driver (FB) Grade-II and CMD (OG) are same and identical. However, the applicant was not allowed to join the duty as CMD (OG) and he was not released by the officer of Fire Brigade. He was asked to continue his duty as Driver (FB), as such the applicant never joined the post of CMD (OG).
3. The grievance of the applicant is that the applicant was never released and allowed to join his post as CMD (Grade -II). At the same time, although he has been working as Fire Engine Driver, he was not granted seniority/promotion at par with his juniors who were drivers in the Fire Brigade. The applicant submitted various representations which were rejected. Hence the applicant has filed this Original Application.
4. The prayer of the applicant is that treating the applicant as Driver Fire Brigade (Grade-II) the applicant should be given seniority and other consequential benefits available to the grade of 4 OA No.431/2008 Driver Fire Brigade. The applicant should be allowed to continue in his original grade as Driver Fire Brigade, Grade-II. He should be given all consequential benefits i.e. Financial upgradation under ACP scheme and promotion to higher grades, at par with his juniors in the said grade.
5. The Hon'ble Tribunal vide its order dated 28.01.2013 directed the respondents to produce documents to show that the applicant has actually and physically worked as Civilian Motor Driver (OG) and to explain Annexure A-8 of the Original Application which is the pay slip of the applicant and which shows that the applicant worked as Driver Fire Brigade and also Annexure A-12 whereas his work as Fire Brigade Driver has been appreciated. From the documents produced by the respondents pursuant to the order of this Tribunal, it appeared that the department described the applicant as CMD but did not say whether he has physically and actually performed the duty of Civilian Motor Driver. The applicant, thereafter, vide his application dated 22.04.2013 under Right to Information Act, 2005 requested the respondent No.3 to supply the copies of his daily attendance report forwarded by Fire Brigade Section, Khadki for the 5 OA No.431/2008 period from 01.01.2012 to 28.02.2013. The respondents forwarded 332 numbers daily attendance report. From those reports, it would be evident that the applicant has been discharging his duty as Fire Engine Driver (FED) and not as CMD (OG). The applicant has annexed one of the order sheets for each month from January 2012 to February, 2013.
6. The respondents have contended in additional reply, affirmed by an Assistant Works Manager/Administration working in the office of the General Manager, Ammunition Factory, Khadki, that the applicant passed the departmental examination for the post of CMD (OG), but he was not released to Motor Transfer Section from Fire Brigade Section due to exigencies of service and hence never worked as CMD. He has all the working knowledge of Fire Brigade Section and he is better equipped to work there compared to other CMDs who had no knowledge of Fire Brigade Work. However, the respondents contended that the applicant was well aware of the fact of his appointment as CMD and his seniority in the grade of CMD. The applicant received all financial upgradation and promotion in the grade of CMD Grade-II. He never objected to holding of post in CMD till 19.07.2007. However, his designation in 6 OA No.431/2008 the pay slips inadvertently remained as Fire Brigade Engineer due to clerical omission. He made representation only after he noticed that the promotional avenues of Fire Brigade Driver have become better than that of CMD due to cadre review. The respondents again admitted that the errors in the pay slips and cash award of the applicant inadvertently remained as Fire Engine Driver due to clerical mistake.
7. We have heard Shri R.C. Ravlani, learned counsel for the applicant and Shri R.R. Shetty, learned counsel for the respondents at length.
8. We have gone through the order dated 06.08.2007 issued in connection with the representation of the applicant for promotion in the grade of Fire Engine Driver. The said order says as follows:-
Sub:- Promotion Scheme for Fire Engine Drivers.
Ref:-Your application dated 31.07.2007 & 01.08.2007 With reference to your above quoted applications, it is intimated that, you were appointed as a Driver Fire Brigade w.e.f.02.05.1990 and subsequently appointed as a CMD (OG) w.e.f. 01.06.1998. On your appointment as CMD (OG), you were posted to Fire Brigade section for duty and your seniority has been fixed in CMD seniority list w.e.f. 01.06.1998. As such you are not entitled for the seniority in Driver Fire Brigade and you will be 7 OA No.431/2008 considered for further promotion in CMD grade as and when your turn come which may be noted.
9. This order appears to be wholly unreasonable and arbitrary. The mere appointment of the applicant in the post of Civilian Motor Driver (OG), although he never joined or worked in the said post, cannot estopp him from claiming his seniority and other benefits in the grade of Fire Engine Driver inasmuch as the authorities for their benefit used him in the Fire Brigade section and never allowed him to work as CMD. The impugned order also exposes highly illogical stand and arbitrary action on the part of the respondents in admitting that although the applicant was appointed as CMD (OG) but he was posted to Fire Brigade Section for duty. No reason has been given as to why he was posted at Fire Brigade Section but his seniority will be fixed as CMD. The fact remains that the applicant was not released from Fire Brigade section and his service was taken as Fire Brigade Driver for some reasons not disclosed in the above letter. In a later correspondence dated 19.04.2008 the respondents admitted that on appointment as CMD (OG) the applicant was not released from Fire Brigade Section and he has been 8 OA No.431/2008 still continuing to work as Fire Brigade Driver till that date.
10. The fact remains that although the applicant qualified and actually appointed in the post of CMD as back as in 1998, he was not released by the administration for their own benefits. It is not the case that the applicant volunteered to work in the post of Fire Brigade Driver and refused to join the post of CMD. Admittedly, the applicant although appointed in the post of CMD never joined in the post of CMD. He continued to work as Fire Engine Driver since 1990. The applicant was confirmed in the post of Driver Fire Brigade with effect from 06.08.1992. The applicant has also annexed the seniority list of the Fire Brigade Drivers.
11. Learned counsel for the applicant submits that those who are juniors to the applicant in the said seniority list has been given higher grade and higher pay scale and other consequential benefits. But the applicant could not avail those benefits of seniority, etc. in the grade of Fire Brigade Drivers. The applicant has impleaded his juniors by name in this Original Application as Respondent No.4 and 5.
12. In our view, the respondents by not 9 OA No.431/2008 considering the applicant's prayer of seniority as well as financial benefits in the Fire Brigade Driver Grade has denied justice to the applicant. Service career of an employee at the lower rung of Driver cannot hang on a decision of his superiors which is prejudicial and does not enure to his benefits in the service career. The respondents, having extracted the service of the applicant as Fire Engine Driver, which is more onerous and risky, the respondents now cannot deny the benefits attached to the post of driver in the Fire Brigade section to the applicant, who has actually served as Fire Engine Driver for such a long spell of time.
13. The Original Application is allowed.
(a) The respondents are directed to treat the applicant as working in his original grade of Fire Brigade Driver, Grade-II.
(b) confer the benefit of seniority, pay fixation and promotion from the date his juniors were promoted.
(c) grant all consequential benefits including financial upgradation under ACP scheme and promotion to the higher grade at par with his juniors in his original grade of Driver Fire 10 OA No.431/2008 Brigade.
14. The respondents are directed to complete this exercise of fixation of his seniority, promotion, pay and other consequential benefits as mentioned above within twelve weeks from the date of the receipt of the copy of the order. MP Nos.56/2013 & 195/2013 also stand closed. No costs.
(Dr. Mrutyunjay Sarangi) (Smt. Chameli Majumdar) Member (A) Member (J) ma.