Central Administrative Tribunal - Kolkata
B Omana Kuttan vs Shipping on 20 September, 2023
1 O.A. No. 351/887/2017 CY CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA (CIRCUIT BENCH AT PORT BLAIR) O.A. No. 351/887/2017 M.A. No. 351/817/2018 M.A. No. 361/818/2018 M.A. No. 351/539/2020 Date of Order: 20.09.2023 Coram: Hon'ble Mr.Jayesh V. Bhairavia, Judicial Member Hon'ble Mr.AnindoMajumdar, Administrative Member In the matter of :
Shri B. Omana Kuttan, Aged about 53 years, S/O Late G. Bhaskaran Pillai, Working as Armature Winder, Under the Directorate of Shipping Services. Andaman & Nicobar Administration. R/o Marine Hill, Port Blair.
beseenes Applicant
-Versus-
4. The Union of india, Through the Secretary, Ministry of Shipping, Transport Bhavan, 1 Sansad Marg, New Delhi - 110
001.
2. The Andaman & Nicobar Administration.
through the Lt. Governor, Raj Niwas, Andaman & Nicobar Islands, Port Blair.
3, The Secretary (Shipping). Andaman & Nicobar Administration, Port Blair.
4. The Director,Directorate of Shipping Services, Andaman & Nicobar Administration. Port Blair.
5. The Assistant Director (Admn.) Directorate of Shipping Services. Andaman & Nicobar Administration. Port Blair.
bees Respondents For The Applicant(s): Ms. A. Nagi Counsel For The Respondent(s): Mr. R. Kumar, Counsel ORDER@ORAL) Per'Mr.Jayesh V. Bhairavia, Member (J) Heard Ld. Counsel on both sides.
2. In the instant O.A., being aggrieved by the order no. 984 dated 30.03.2017 (Annexure A/26) vide which the Commissioner-cum-
OQ 2 O.A. No. 351/887/2017 Secretary (Shipping), ic. the respondent no. 3 herein, had, in compliance to the directions issued by this Tribunal in O.A. 351/00164/AN/2015, considered and rejected the claim of the applicant to amend the Recruitment Rules for the post of Chargeman (Electrical) to include Armature Winder as a feeder post fer promotion to the said post and to allow him to appear for the Trade Test. Hence, the applicant has filed this O.A. under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
41. "An orderforders quashing the impugned orderdated 30/3/2017 passed by the respondent authorities.
2. Anorder / orders quashing the Circular dated 12.01.2015 passed by the Assistant Director (Admn.). Directorate of Shipping Services Andaman & Nicobar Administration.
3. An order directing the respondent authorities to amend relax the recruitment rules of Chargeman (Electrical) by including Armature Winder as feeder post to the post of Chargeman (Electrical) as observed by the Honourable High Court.
4. An order directing the respondent authorities to fill up the post of Chargeman (Electrical) only after amending/relaxing the recruitment rules in the manner prayed in the prayer a) above.
5. An order directing the respondent authorities to amend the rules for the post of Armature (Electrician) so that the applicant can get relief.
6. An order directing the respondent authorities to grant the pay scale / pay band of Electrician to the applicant.
7, Anorder directing the respondent authorities to grant arrears of pay to the applicant after granting him the pay scale / pay band of Electrician.
8. Anorder directing the respondent authorities to act in accordance with law.
9. An order do issue directing the respondents to produce the records of the case before this Hon'ble Tribunal so that conscious able justice may be done.
10. Such other or further order direction or directions, as your Lordships deem fit and proper in the interest of justice."
3. In the instant O.A., Ld. Counsel for the applicant would submit that though there was a positive recommendation of the department to make the post of Armature Winder a feeder cadre post of Chargeman (Elec.) and a direction was issued by Hon'ble High Court in W.P.C.T. No. 160/2014 dated 09.06.2014, the respondents had not taken any decision. Therefore, the applicant had approached this Tribunal in earlier round of litigation by way of filing O.A. 5 'e 3 O.A. No. 351/887/2017 351/00164/2015 which came to be disposed of vide order dated 05.10.2015 with a direction upon the respondents to take a conscious decision as directed by the Hon'ble High Court in the order dated 09.06.2014. However, again the respondents have rejected the claim inspite of the existence of a recommendation for amendment to be made in the Recruitment Rules so as to enable the applicant to get the benefit of promotion to the post of Chargeman (Electrical). The reason assigned in the impugned order is, as such, not tenable and the applicant has been erroneously deprived of the promotional avenue. Hence, this O.A.
4. On the other hand, the respondents have filed their reply and have denied the claim of the applicant. It is stated that Electrician and Armature Winder are two different types of posts having different duties and responsibilities with different requisite qualifications etc. Promotions as well as direct recruitments are being made in accordance with the existing Recruitment Rules as applicable to respective posts. No case can be considered beyond the provisions of the existing Recruitment Rules. The recommendation/proposal, as made by the Asstt. Director (Admn.), Directorate of Shipping Services, was rejected by the Secretary (Shipping). Thereafter, again, in the light of the judgment passed by the Hon'ble High Court and the order passed by this Tribunal, the case of the applicant was considered by the Commissioner-cum-Secretary, Directorate of Shipping Services, and, by assigning cogent reasons, the same was rejected vide impugned order dated 30.03.2017 which is just and proper and the applicant is hence not entitled to any relief sought for in this O.A.
5. Heard both Ld. Counsel. Perused the materials on record.
oe 4 O.A. No. 351/887/2017
6. It is noticed that in compliance to the direction issued by this Tribunal in O.A, 351/164/2015, the respondents have passed the speaking order dated 30.03.2017 which is impugned herein. To appreciate the submissions of both the parties, it is appropriate to refer and reproduce the said order dated 30.03.2017 which reads as under for ready reference:-
"WHEREAS an application bearing OA No. 167/AN/2012 filed by Shri Omana Kuttan before the Central Administrative Tribunal (CAT), Circuit Bench at Port Blair, praying for direction upon the Respondents to merge the post of Armature Winder with that of Electrician and the amendment of the RRS of Chargeman (Electrical) to make Armature Winder a feeder post of Chargeman (Electrical).
AND WHEREAS the Ld. Tribunal (CAT) after hearing the Counsel of the applicant and going through the records dismissed the aforesaid OA by its order, dated 13.12.2012;
AND WHEREAS the applicant aggrieved by the orders of Ld. Tribunal for not allowing his OA, filed WPCT bearing No. 028 of 2013 before the Hon'bie High Court, Circuit Bench at Port Blair with almost similar prayers which he made before the Ld. Tribunal;
AND WHEREAS the Hon'ble High Court disposed of the aforesaid WPCT by its order, dated 29.01.2013, directing the Secretary (Shipping) (Respondent No. 3) to act on the recommendation made by the Assistant Director (Administration) vide letter dated 09.03.2011 within eight weeks from the date of communication of the order and to pass a reasoned order to be communicated to the petitioner within a stipulated period of 08 weeks;
AND WHEREAS to implement the aforesaid order of the Hon'ble High Court, the Respondents sought for extension of time by filing application CAN No. 57 of 2013. and the said application has been disposed of on 07.06.2013 by the Hon'ble High Court in which another eight weeks' time had been granted to comply the order, dated 29.01.2013;
AND WHEREAS, the Secretary (Shipping), A&N Administration after going through the reference dated 09.03.2011 made by the Assistant Director (Administration) of Directorate of Shipping Services, Port Blair and having considered the facts/records as available on the records found that the Grade Pay of Armature Winder of Directorate of Shipping Services, which is held by the Shri Omana Kuttan (Applicant), cannot be up-graded from 1900 to 2400 in PB-1 merely in order for parity with that of the post of Electrician as proposed by department in their aforesaid reference and communicated the same to Shri Omana Kuttan vide Memorandum No. 42-763/2013-TR dated 31.07.2013 and a copy of the said Memorandum was also endorsed to Director of Shipping Services, Port Blair.
AND WHEREAS, Shri Omana Kuttan filed a WPCT No.140 of 2014, which was disposed of by the Hon'ble High Court by its order, dated 09.06.2074. On the issue of merger, the Hon'ble High Court observed justitication in the order passed by the Secretary (Shipping) and held that it is very often, two different posts would attract identical qualification and experience. Yet, nature of job performed by them is totally distinct from the other. Hence question of merger of post may not be of any assistance. However, it is for the Administration to 5 O.A. No. 351/887/2017 consider whether it would be beneficial for them. The Court of Law cannot issue any mandate cn that score.
In the concluding part of the order the Hon'ble High Court held *....his experience for the job that an electrician would perform could be treated as an experience for the promotional post of "Chargeman" that would only be possible when armature winders are also alfowed to compete along with electrician, subject to their adequate experience to perform as an electrician. it is only possible through amendment of Rules giving appropriate relaxation to the post of armature winder. We leave it open to the authority to consider this issue and consider whether it is possible to give some relaxation to the armature winders to compete for the promotional post of "Chargeman" along with the "electrician" subject to adequate experience referred to above. The order of the Tribunal stands modified. We abundantly make it clear, the order of the Tribunal so merged in the order of this Court should not be considered as a mandated...".
AND WHEREAS, the Ld. Tribunal while disposing the OA No.351/00164/2015 by its order, dated 05.10.2075 directed the Respondent Administration to take a conscious decision as directed by the Hon'ble High Court in its order, dated 09.06.2014 and communicate the same immediately thereafter to the applicant and till then the post of Chargeman (Electrical) may not be filled in.
AND WHEREAS, the hierarchy for promotion to the higher post of Electrical Wing of the department is as follows;
Foreman (Electrical) Chargeman (Electrical) Electrician Electrical (Fitter) Sub-Station Attendant AND WHEREAS, as per above hierarchy, individual holding the posts of Electrical Fitter is only eligible to consider for promotion to the post of Electrician. In the event of allowing Armature Winder to appear for trade test for promotion to the post of Chargeman (Electrical), the career progression of incumbents holding the post Electrical Fitter will be affected and they may also approach the Court of Law:
AND WHEREAS, it may be relevant to mention here that Shri Omana Kuttan was aware that the post of Armature Winder is an isolated post and had offered his candidature for the post accordingly before he got employed. A demand later to create promotion avenue to the post would affect these officials. This is not the only isolated post in the Directorate of Shipping Services and there are other posts which do not have the promotion avenue. Isolated posts are there in other departments of the A&N Administration. To mitigate the hardship of the Central Government Civilian Employees due to acute stagnation in cadre/lack of adequate promotional avenue, Govt, of India, Ministry of Personnel, PG & Pension (Department of Personnel & Training), New Deihi vide their OM No. 35034/1/97-Estt (D) dated 09.08.1999 has introduced Assured Carrier Progression Scheme (ACP). As per the Scheme, two financial up-gradation in the higher scale of pay shall be allowed to a Govt. servant in the entire service career, first financial up- gradation on compietion of 12 years of regular service and second up- gradation after 12 years of regular service from the date of first financial up-gradation subject fulfillment of prescribed conditions. to Subsequently, on the recommendation of the 6th CPC, Govt. of India had introduced "Modified Assured Career Progression Scheme (MACPS)" for the Central Government Civilian Employees, effective 6 O.A. No. 351/887/2017 from 01.09.2008. As per MACP Scheme, a Govt. servant is entitled for three financial up-gradation on completion of 10, 20 and 30 years of service. The benefits of the scheme has been extended to ali the eligible employees including Shri Omana Kuttan (Applicant) by the DSS;
AND WHEREAS, in a catena of judgements the Ld. Tribunal, Hon'ble High Court and the Apex Court held that when a post become vacant, it should be filled strictly as per the provisions of the RRS which was/is in force and there is no possibility to depart from RRS in force at that point of time;
NOW, THEREFORE, the undersigned having considered the facts/records as available on records and the case as explained above, finds that there is no possibility to amend the RRS for the post of Chargeman (Electrical) to include Armature Winder as feeder post for promotion to the post of Chargeman (Electrical) and/or to allow him to appear for the trade test This is issued in compliance of solemn order, dated 05.10.2015 of the Ld. Tribunal, Circuit Bench at Port Blair in OA No.351/00164/2015 and CPC No.11/AN/2016 dated 26.09.2016."
7. It can be seen that the competent authority has considered the order and direction passed by the Hon'ble High Court as well as that of this Tribunal.The respondents have also taken into consideration the hierarchy of promotion to the higher post of Chargeman (Elect.) and to mitigate the hardship of the Central Government civilian employee due to acute stagnation in cadre/lack of adequate promotional avenue, the Government of India, Ministry of Personnel, PG & Pension (DoP&T), New Delhi, vide O.M. dated 09.08.1999 had introduced Assured Carrier Progression Scheme (ACP). Subsequently, upon recommendation of the 6t CPC, G.O.I had introduced Modified Assured Carrier Progression Scheme (MACPs} w.e.f. 01.09.2008. Undisputedly, the applicant herein, along with other similarly placed employees were granted the benefit of financial upgradation in terms of the said ACP/MACP Scheme by the respondents. The said averment of the respondents has not been refuted by the applicant.
Further, at this stage, it is apt to mention that, it can be seen that the Hon'bie Calcutta High Court in its Circuit Bench at Port Blair had categorically made it clear that "the applicant's experience for 7 O.A. No. 351/887/2017 the job that an electrician would perform could be treated as an experience for the promotional post of "Chargeman"that would only be possible when armature winders _are also atlowed to compete along with electrician, subject to their adequate experience to perform as an electrician, It is only possible through amendment of Rules giving appropriate relaxation to the post of armature winder, We leave it open to the authority to consider this issue and consider whether it is possible to give some relaxation to the armature winders to compete for the promotional post of "Chargeman" along with the "electrician"
subject to adequate experience referred to above. The order of the Tribunal stands modified. We abundantly make it clear, the order of the Tribunal _so merged in the order of this Court should not be considered as a mandated...".
Therefore, the submission of Ld. Counsel for the applicant that the respondents have not considered the direction issued by the Hon'ble High Court for amendment to the rules for creation of promotional avenue is, in our considered view, not tenable in the light of what is stated herein above. The Hon'ble High Court has evidently made it clear that the observation/direction issued should not be considered as a mandate. The respondents have assigned cogent reason regarding the impossibility of amending of the Recruitment Rules for the post of Chargeman (Electrical) to include Armature Winder as feeder cadre post for promotion to the post of Chargeman (Electrical} and had decided not to allow the applicant for the Trade Test for such post. It suffices to say that to amend the Recruitment Rules is the prerogative of the competent authority/ administration and the Court/Tribunal would not interfere with the matters 8 O.A. No. 351/887/2017 pertaining to policy decisions which undisputedly fall under the domain of the employer. We, therefore, do not find any legal infirmity in the finding recorded in the impugned speaking order dated 30.03.2017.
8. In the light of the aforesaid discussion, this O.A. stands dismissed. No costs. on wan u (AnindoMajumdar) (Jayesh V. Bhairavia) Member (A) Member (J) UW