Central Administrative Tribunal - Madras
D Dorai vs M/O Defence on 20 September, 2024
1 OA 310/01095/2015
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/01095/2015
Dated, the 20th day of September, Two Thousand Twenty Four
CORAM :
HON'BLE MR.M.SWAMINATHAN, MEMBER (J)
&
HON'BLE MR.SANGAM NARAIN SRIVASTAVA, MEMBER (A)
D. Dorai
Chargeman (FMT) P/A,
No.31416T 8 Base Repair Depot,
AF, Avadi, Chennai - 600 055 .... Applicant
By Advocate M/s.Paul & Paul
Vs.
1. Union of India,
Represented by Secretary,
Ministry of Defence, South Block,
New Delhi-110001.
2. Air Chief Marshal,
Air Head Quarters, Vayu Bhavan,
New Delhi-110 106.
3. Air Officer Commanding,
HQ Maintenance Command, IAF, O i/c PC,
Vayusena Nagar, Nagpur 440 007.
4. The Commanding Officer,
8, Base Repair Depot, Air Force Station,
Avadi, Chennai - 600055. .... Respondents
By Advocate Mr.K.Rajendran
2 OA 310/01095/2015
ORDER
(Pronounced by Hon'ble Mr.Sangam Narain Srivastava, Member(A)) The applicant has filed the present OA under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
"a) for a direction to the respondents to consider and promote the applicant as Foreman with the effect from the date of existing vacancy, if necessary by diverting the vacancy after required approval to be filled up by promotion, with all attendant benefits of pay fixation, arrears of pay and allowances, etc.;
b) for such further or other relief or reliefs as this Hon'ble Tribunal may deems fit and proper in the circumstances of the case and thus render justice."
2. The brief facts of the case are as follows:
2.1 At the time of filing this OA, the applicant was working as Chargeman, (FMT) under the control of 4 th respondent. He was originally appointed as MTM on 05.04.1982 and subsequently promoted on 20.04.1987, as FMT HS Grade-II.
Thereafter, he was further promoted to HS Grade-I in September 1988 and to the post of Chargeman (FMT) on 24.01.2001.
2.2 The next avenue of promotion for the applicant is to the post of Foreman and on completion of 5 years of service in the post of Chargeman, the applicant became eligible to be considered for promotion as Foreman. A vacancy in the post of Foreman arose on 01.05.2013, due to the retirement of 3 OA 310/01095/2015 one Foreman Sri R.Kasi on 30.04.2013.
2.3 The applicant, being the senior most eligible person, represented to the 4th respondent on 13.05.2013 for considering him for promotion. In response to the representation, the 4th respondent recommended the name of the applicant for promotion, but the said proposal was not accepted on the ground that the vacancy which arose in May 2013, was earmarked to be filled up by deputation, as per 2 nd respondent's letter, dated 12.04.2005, according to which 66.66% of the post to be filled up by promotion and the remaining 33.33% promotion by deputation. 2.4 Communications have also been sent from the 4 th respondent office for reconsideration of the issue and further requesting that if necessary the vacancy may be diverted and the same to be filled up by promotion, but nothing materialised. The applicant has also given his willingness to be considered provisionally for promotion till clarification is received from the competent authority and in case of refusal of approval, he is willing to forego the promotion. The 4 th respondent sent a communication to the applicant on 29.06.2015 setting out the series of action initiated by the office and informed him that no further action would be taken in the matter till clarification from the Head Quarters is 4 OA 310/01095/2015 received. Being aggrieved, the applicant has filed the present OA seeking the aforesaid relief.
2.5 The contention of the applicant is that the vacancy which arose in May 2013 was a 4 th point in the Roster which point was earmarked for appointment by promotion and not by deputation. His grievance is that there is no justification in keeping the post vacant for indefinite period, particularly, when he, the eligible candidate, is available from the department itself and any further delay will be against public interest and he is due for retirement on superannuation in August 2017.
3. After notice, the respondents have entered appearance through their counsel and filed their reply statement refuting all the averments made in the OA, except those which are admitted on facts.
3.1 The respondents submitted that 8 BRD, AF, has establishment of three posts of Foreman. As per RRs of the Foreman post 66.66% of vacancies are to be filled by promotion mode and remaining 33.34% of vacancies are to be filled by deputation mode. Therefore, out of three posts, one post of Foreman should be filled by deputation mode. The other two posts of Foreman at 8 BRD, AF have already been filled from promotion mode. This position has already 5 OA 310/01095/2015 been clarified to HQMC, IAF and 8 BRD, AF, vide Air HQ letter No. Air HQ/23049/Tech Supervisor/PC-4, dated 30.04.2014. 3.2 The 2nd Respondent vide letter, dated 30.04.2014, had issued directions to fill up the vacancy through deputation failing which the case can be taken up with Ministry of Defence/UPSC for diversion of the deputation mode to promotion mode. Based on the advice, the 4th Respondent initiated the process to fill up the Foreman post by Deputation by issuing Signal PC/43 dated 06 May 2014 to all the units under the 2nd Respondent. However, no response has been received from the units due to which the Foreman post could not be filled and is still vacant. The said Foreman post can not be filled by promotion mode as the same is against the provisions of the Recruitment Rules of the post. The AIR HQ had proposed 'method of recruitment' as 100% by promotion in Draft RRs. However, during the process, UPSC did not agree with the proposal and approved the 'method of recruitment' as 70% by promotion and 30% by deputation including short-term contract in draft RRs. 3.3 The willingness of the applicant to consider him provisionally for the post of Foreman by promotion mode is not acceptable as this single post of Foreman at 8 BRD, AF is earmarked for deputation mode only. It is further submitted 6 OA 310/01095/2015 that the provisions of RRs should be complied in letter and sprit while making appointments against any post. Hence they prayed for dismissal of the OA.
4. Heard learned counsels, Mr.Paul & Paul, for the applicant and Mr.K.Rajendran, for the respondents.
5. We observe that there were total 3 posts of Foreman which were to be filled only by way of promotion from Chargeman. There is no provision of direct recruitment to Foreman. The promotion has to be in the ratio of 66.66% & 33.34% from promotion and deputation, respectively. All 3 posts were occupied. A vacancy arose on 01.05.2013 for the post of Foreman on the retirement of one Mr.Kasi. The applicant made a request to the competent authority for promotion, as he was the senior most eligible person. The competent authority finding the applicant suitable for the post recommended him for the promotion in the DPC held for the purpose. The same was not accepted by the Air HQ/MoD as according to them the post was to be filled by deputation and not promotion. Subsequently, the respondent No.4 initiated series of action to expedite the promotion of the applicant, including requesting diversion of post from deputation to promotion as no suitable candidate was available from deputation; shortage of manpower in 7 OA 310/01095/2015 supervisory cadre; that since there was only one vacancy arising, it was not possible to fill through deputation and the quota would amount to 1/3rd post which could not be rounded off to 1. He actually mentions that "this is a situation where there is no vacancy for deputation at all on account of non- availability of sufficient number (less than 0.5). He specifically mentions that the "depot is established for 3 Foreman vacancies and all the vacancies have already been filled up. Hence the 4th vacancy of Foreman at this Depot is to be filled up by promotion only and not by deputation, as per Maintenance of Recruitment Roster issued by Air HQ, vide Lr.No. AirHQ/23049/Tech Supervisors/PC/04 dated 27 th January 2014. Hence, Shri D.Durai, Chargeman, PA No.31416-T may be considered for promotion to the post of Foreman accordingly."
6. All the actions taken by the respondent no.4 were rejected by the Air HQ/MoD and he was advised to ask to write to MoD/UPSC for conversion of vacancy from deputation to promotion and not to promote the applicant till such time. Reference was made but no reply received from MoD/UPSC.
7. The applicant has taken the following grounds:-
i. The vacancy arose on 01/05/2013 is 4 th point in the Roster and, therefore, earmarked for promotion quota.
8 OA 310/01095/2015 ii. No candidates were available to be appointed by deputation and the applicant is the senior most eligible candidate available in the department.
iii. Non consideration of the applicant and keeping the post vacant is against public interest iv. That non-consideration under the circumstances is opposed to principles of legitimate expectation. v. That non-consideration for promotion on the ground that the vacancy is earmarked for deputationist suffer from non-application/misapplication of mind. vi.That non-promotion even provisionally, pending clarification/approval and subject to reversal is arbitrary, unjust and unreasonable.
8. The respondents have, in their reply, stated that the post was for deputation candidates and that no suitable candidate could be found despite circulation of vacancy. It was also mentioned that the draft RRs for 100% through promotion has not been accepted by the UPSC.
9. During the course of proceedings before us, the applicant filed copies of RTI query made to respondent no.3 and his reply, vide his letter MC/5219/1/3/RTI dated 09.02.2017, under the RTI Act. The query and the reply is 9 OA 310/01095/2015 reproduced below:-
Query (a) In Recruitment Rule for Foreman, 33% is to be kept for Deputation. Please clarify whether the 33% for deputation has been filled by Deputation from other department in 8 BRD Chennai in the last 15/20 years.
Reply (a) No post of Foreman has been filled through deputation from other department in 8 BRD AF, Chennai in the last 15/20 years due to non- availability of suitable candidates.
10. The above reply makes it abundantly clear that there has been no promotion from deputation in 8BRD AF, Chennai (place of posting of the applicant) in the past 15/20 years. The post of Foreman is to be filled only by promotion. There are 3 posts of Foreman in the unit. It can be safely deduced from the RTI reply that all the three posts were filled by promotion and not deputation, otherwise the reply would mention that there was filling of vacancy by deputation. Therefore, when in the past, deputation vacancy was filled by promotion, there is no reason why the same principles are not applied to the applicant's case.
11. Be that as it may, the 3 posts of Foreman were all occupied till one Mr.Kasi retired on 30.04.2013. If it has to 10 OA 310/01095/2015 be considered that those were filled as per the RRs in ratio of 66.66% & 33.34% for promotion and deputation respectively, then the 1st two would have been promotion and the 3 rd from deputation. The current vacancy being the 4 th on the Roster will have to be filled by promotion. It is an absurd proposition to consider it as stand alone vacancy in the DPC year and treat it as for deputation when the nature of vacancy has to be determined as per Roster maintained in accordance with Recruitment Rules. It also does not make any difference if the remaining 2 incumbent Foreman were from promotion quota. Whenever a vacancy arises, the nature has to be determined in accordance with the point on the running Roster. This fact, that it is the 4 th vacancy as per Maintenance of Recruitment Roster, and hence to be filled by promotion, has been accepted by respondent no.4 and informed to the HQ/MoD, vide his letter of 24.12.2014. The HQ has rejected this without giving any reason.
12. Under the circumstances, we have no hesitation in holding that the vacancy on the retirement of Mr.Kasi arsing on 01.05.2013, being 4th vacancy on the Roster, was on account of promotion quota and since the applicant was found eligible on all other parameters and recommended for promotion, we direct that the applicant is to be granted 11 OA 310/01095/2015 promotion notionally to the post of Foreman from the date of vacancy, i.e., 01/05/2013 with all consequential benefits, including retiral benefits. The respondents are directed to complete the abovesaid exercise, within a period of three months from the date of receipt of a certified copy of this order. OA is allowed to the extent indicated above. No order as to costs.
(SANGAM NARAIN SRIVASTAVA) (M.SWAMINATHAN)
MEMBER(A) MEMBER (J)
20.09.2024
MT