Central Administrative Tribunal - Mumbai
Kiran R Patel vs M/O Defence on 21 December, 2022
CENTRAL ADMINISTRATIVE TRIBUNAL MUMBAI BENCH, MUMBAI. ORIGINAL APPLICATION Nos. 497/2017, 93/2017 & 239/2018. Order reserved on 16th November, 2022 Order pronounced on 21st December, 2022 Hon'ble Shri. Justice M.G. Sewlikar, Member (J) Hon'ble Dr. Bhagwan Sahai, Member (A) 1. Shri R. Venugopal / Age 47 years Working as Chargeman (GT Fitter) in Naval Dockyard Mumbai Kanjurmarg (w), Mumbai-400078 2. Shri Bimalananda Parija / Age 45 years Working as Chargeman (GT Fitter) in Naval Dockyard Mumbai Residing at B-201, Mauli Apartment, Sector-9 Kamothe, Navi Mumbai-410209. 3. Shri Dayanand Hanmant Shirke / Age 45 years Working as foreman (GT Fitter) in Naval Dockyard Mumbai Residing at B-206, Mauli Apartment, Sector-9 Kamothe, Navi Mumbai-410209 4. Shri Narayan Yashawant Dhuri / Age 59 years Working a Foreman (ICE Fitter) in Naval Docckyard Mumbai Residing at Uran Municipal House No.801 C13 Boripawbhat Uran, Dist. Raigad, Maharashtra-400702 5. Shri Shripad Dwarkanath Gupte / Age 56 years Working as Foreman (ICE Fitter) in Naval Dockyard Mumbai Resident of B007, Narmada CHS Ltd, River Park Rawalpada, Dahiser (East), Mumbai-400068 6. Shri Sudhakar Rambhau Avate / Age 51 years Working as Chargeman (Ship Fitter) in Naval Dockyard Mumbai Residing at 204/Michel Plaza, Behind SK Rai College PL Lokharde Marg, Chembur (East), Mumbai-400089. 7. Shri Sayavijay Dhondu Gawade / Age 51 years Working as Chargeman (Weapon Fitter) in Naval Dockyard Mumbai Residing at 202/Aai Nagar, Kalwa (W), Dist Thane, Maharashtra-400605. 8. Shri Pius Augustian N / Age 50 years Working as Foreman (Computer Fitter) in Naval Dockyard Mumbai Residing at 7401/Solitire-2 Wooden Garden, Mira Road (East) Dist. Thane, Maharashtra-401107 9. Shri Dhirendra Kumar / Age 37 years Working as HSK-I (GT Fitter) in Naval Dockyard Mumbai Residing at House No.1076, Kegaon (Vinayar) Taluka Uran, Dist. Raigad, Navi Mumbai-400702 10. Shri M Thangadurai / Age 36 years Working as HSK-I (GT Fitter) in Naval Dockyard Mumbai Residing at Building No.59/03, NCH Colony Kanjurmarg (West) Mumbai-400078. 11. Shri AN Arief / Age 36 years Working as HSK-I (GT Fitter) in Naval Dockyard Mumbai Residing at 3/204, Magit Apartment, Plot No.07 Kamote, Navi Mumbai-410209. 12. Shri Nitin Vinayak Jagdale / Age 37 years Working as HSK-I (GT Fitter) in Naval Dockyard Mumbai Residing at Krishnabai Chwal, JM Road Jamilnagar, Bhandup (W), Mumbai-400078 13. Shri Mahesh Anandrao Daundkar / Age 36 years Working as HSK-I (GT Fitter) in Naval Dockyard Mumbai Residing at D-403, Vastusunkalp Complex Sector-5, Kamote, Navi Mumbai-410209 14. Shri Kodamagulla Raghu / Age 36 years Working as HSK-I (GT Fitter) in Naval Dockyard Mumbai Residing at A-201, Mauli Apartment, Plot No.07 Sector-9, Kamote, Navi Mumbai-410209 15. Shri MV Bhaskara Rao / Age 34 years Working as HSK-I (GT Fitter) in Naval Dockyard Mumbai Residing at B-6/112, DGQA Complex Ghatkopar (West), Mumbai-400086 16. Shri Bihu Prasad Sahu / Age 36 Working as Ship Fitter in Naval Dockyard Mumbai Residing at 27/887, CGS Colony, Sector-7 Antop Hill, Mumbai-400037 17. Shri Lingaraj Panda / Age 35 Working as HSK-I (Ship Fitter) in Naval Dockyard Mumbai Residing at 119/15, NCH Colony, Kanjurmarg Mumbai-400078. 18. Shri Kandregula Santosh Kumar / Age 37 Working as HSK-I (Ship Fitter) in Naval Dockyard Mumbai Residing at B-004, Sai Arcade, 'B' Cabin Road Morivilli, Ambernath (E), Dist. Thane Maharashtra-421501 19. Shri Sudhkara Varma Sagi / Age 33 Working as HSK-I (Ship Fitter) in Naval Dockyard Mumbai Residing at Anmol garden, Building No.8 / 'A' Wing Flat No.105, Hajimali Road, Kalyan (E) Maharashtra - 421306 20. Shri PC More / Age 59 years Working as HSK-I (Machinist) in Naval Dockyard Mumbai Residing at 85/2382, Kanwarnagar 2 Vikhroli (East), Mumbai-400083 21. Shri TG Pradhan / Age 37 years Working as HSK-I (Machinist) in Naval Dockyard Mumbai Residing at 205/11, NCH Colony Kanjurmarg (E), Mumbai-400078 22. Shri K Das / Age 36 years Working as HSK-I (Machinist) in Naval Dockyard Mumbai Residing at O/31, NCH Colony Kanjurmarg (W), Mumbai 400078. ...Applicants in OA No.93/2017 (By Mr. Vicky Nagrani, Advocate) 1. Shri Kiran R Patel / Age 56 years Working as Foreman in Naval Dockyard Mumbai Residing at Kherwadi Pipe Line, Plot No.131 Dayma Road, Bandra (East), Mumbai-400023. 2. Shri Milind N Prabhu / Age 54 years Working as Foreman in Naval Dockyard Mumbai Residing at B-503/Bheem, N.L Complex Anand Nagar, Dahisar (East), Mumbai-400068 3. Shri SD Mohite / Age 28 years Working as Worker (Skilled) in Naval Dockyard Mumbai Residing at B/11/63, MHB Colony, Dnyneshwar Nagar, Sewree, Mumbai-400031 4. Shri PP Nikam / Age 35 years Working as Worker (HSK-II) in Naval Dockyard Mumbai Residing at B-303/Surpriya CHS Ltd, Sector-18 Kamothe, Navi Mumbai-400209. 5. Shri D Patro / Age 32 years Working as Worker (HSK-II) in Naval Dockyard Mumbai Residing at B-203 / Vesnavi Park, Nandivali Kalyan (East), Thane-421306 6. Shri Grish J Sarwankar / Age 28 years Workings as Worker (Skilled) in Naval Dockyard Mumbai Residing at A-1/Sidharth Nagar, Opposite Podelar Hospital, Worli, Mumbai-400018 7. Shri Neep Brahma / Age 27 years Working as Worker (Skilled) in Naval Dockyard Mumbai Residing at 5444/148, Sector-7, CGS Quarters Antop Hill, Mumbai-400037 8. Shri Nikhil H Parkar / Age 24 years Working as Worker [Skilled] in Naval Dockyard Mumbai Residing at plot No.50/C5, Susmagal CHS Gorai-1, Borivali (West), Mumbai-400092 9. Shri SY Nagral / Age 30 years Working as Worker (Skilled) in Naval Dockyard Mumbai Residing at 501 / Sai Crystals, Morivali Pada Ambvarnath (East), Thane-421501 10. Shri VS Shelar / Age 23 years Working as Worker (Skilled) in Naval Dockyard Mumbai Resident of 197/07, NCH Colony Kanjurmarg (West), Mumbai-400078 11. Shri SC Shaikh / Age 26 years Working as Worker (Skilled) in Naval Dockyard Mumbai Residing at Om Sai Chawl, Room No 297 Odaysree Road, Bhavani Nagar Bhandup (East), Mumbai-400042 12. Shri SK Maykar / Age 58 years Working as Worker (Skilled) in Naval Dockyard Mumbai Residing at 401/ Prafulban CHS Ltd 162, DL Vaidya Road, Dadar (W), Mumbai-400028. 13. Shri RB Shelke / Age 56 years Working as Worker (HSK-II) in Naval Dockyard Mumbai Residing at Pestan Sagar, P Lokhande Marg Ajanta Colony, Chembur, Mumbai 89 14. Shri RS Bharti / Age 55 years Working as Worker (Skilled) in Naval Dockyard Mumbai Residing at 4/B/208, Sanitra CHS Ltd Ashokvan, Dahisa (East), Mumbai-400068 15. Shri SN Malusare / Age 32 years Working as Worker (Skilled) in Naval Dockyard Mumbai Residing at 201/ Classik Avanue, B-Wing Uran, Dist. Raigad, Maharashtra-400702 16. Shri Sachin Kumar R Dixit / Age 33 years Working as Worker (skilled) in Naval Dockyard Mumbai Residing at Room No.56, 2/3, Dr. Ambedkar Nagar Vidyavihar Road, Kurla (West), Mumbai-400070 17. Shri Vikas Mehra / Age 30 years Working as Worker (Skilled) in Naval Dockyard Mumbai Residing at 5444/148, Sector-7, CGS Quarters Antop Hill, Mumbai - 400037 18. Shri Yogesh B Tayade / Age 36 years Working as Worker (Skilled) in Naval Dockyard Mumbai Residing at Room No.4/Anand Nagar, First Gate Ambernath Road, Ulhasnagar -3, Maharashtra -421003 19. Shri Mohan R Chaudhari / Age 29 years Working as Worker (Skilled) in Naval Dockyard Mumbai Residing at B-2/123, Umiya Complex-Phase-II Ganpati Mandir Road, Titwala, Thane-421605 20. Shri Santosh Behera / Age 27 years Working as Worker (Skilled) in Naval Dockyard Mumbai Residing at 504/R-5, MMRD Project Subhas Nagar, Nahur (West), Mumbai-400078 21. Shri Prasanjeet Sahu / Age 33 years Working as Worker (HSK-II) in Naval Dockyard Mumbai Residing at 1638/43, Sector-7, CGS Quarters Antop Hill, Mumbai -400037 22. Shri Manoj V Savarkare / Age 32 Working as Worker (Skilled) in Naval Dockyard Mumbai Residing at 01 / Moon Apartment, At Post Neral, Teh. Karjat, Maharashtra - 410101 23. Shri Rajeev Kumar / Age 29 years Working as Worker (Skilled) in Naval Dockyard Mumbai Residing at Room No.203, Sai Prasad, Atali Ambivli (West), Thane-421102 24. Shri Durga V Jidugu / Age 31 years Working as Worker (Skilled) in Naval Dockyard Mumbai Residing at P-1104, NCH Colony Milan Nagar, No.3, Ulhasnagar-3, Thane-421003 25. Shri Ramchandra Hansdah / Age 30 years Working as Worker (Skilled) in Naval Dockyard Mumbai Residing at B-9/Nav-Arpan, Rameshwadi Kulgaon Badlapur (West), Thane-421503 ...Applicants in OA No.497/2017 (By Mr. Vicky Nagrani & Mr. R.G. Walia, Advocate) 1. Naveen Employees Union Having its office at: 162/6, Jijina Mansion (Blosson), Modi Street, Fort, Mumbai-400 001 Through its General Secretary, Mr. R K Singh 2. Swapnil Suresh Shinde A/Painter, HSK - II, T.No.13653 - A Dept. CWH/SH 30 Add.3048/218, Sector-1, CGS Colony, Kane Nagar, Antophill, Sion East Material Organisation, LBS Marg, Ghatkopar West 3. Vivek Chandrakant Naik Shipwright, HSK - II, T.No.1342__-M Dept. NSD Sewri, SH - 45, Add. 1585/61, Kanamwar Nagar 02, Vikhroli East. 400083. Material Organisation, LBS Marg, Ghatkopar West 4. Pradeep J. Ubale MCM, T.No.46258 - L Dept. CTS P & R Ad.. Siddhi Neel Harmony, 202/21, Sector-02, Ulwe Road, Panvel, Navi Mumbai Material Organisation LBS Marg, Ghatkopar West 5. Sachin Bapusaheb Gaikwad Shipwright, HSK - II T.No.13638 - K Dept. CWH/GCP, Add. R.No.01, Gavdevi Chawl, No.03, Ganesh Nagar, Diva Eat, 400612 Material Organisation LBS Marg, Ghatkopar West 6. Shailesh H. Nevarekar Eng. Fitter, HSK - II T.No.13674 - R Dept. CWH/M.T Add. T-60/003, Matoshree Sadan, Pratiksha Nagar, Sion East-400022 Material Organisation LBS Marg, Ghatkopar West 7. Ramesh Surendra Sutar Shipwright, HSK - II T.No.13632 - H Dept. N.S.D. Sewri, SH-13 Add. 112, 1st Floor, Ashta Vinayak Apt. Sainath Nagar, Virar East Material Organisation LBS Marg, Ghatkopar West 8. Balwantrai B. Prajapati Shipwright, MCM T.No.52494-H Dept. NSO Dockyard, Add. P23/9, S.P.D.C. Colony, Sion Trombay Road, Mankhurd East Material Organisation LBS Marg, Ghatkopar West 9. Dinesh Gopa Kamble Ship Wright, HSK II T.No.13931-E Dept. CWH/ Carpenter Shop Add: P-21/01, SPDC Colony, Sion Trombay Road, Mankhurd (E) Material Organisation LBS Marg, Ghatkopar(W) 10. Sanket Manohar Ghadigaonkar Shipwright, HSK II T.No.13637-E Dept: CWH/Carpenter Shop, Add:57/1470, Kannamwar Nagar 01, Vikhroli (E) 400083 Material Organisation LBS Marg, Ghatkopar (W) 11. Nitin Shashikant Dhonde T.No.55805-T, Dept. CMP, R.S Section, Add: At Post, Agashi Bazar Peth, Bati Bandur Road, Virar (W), Tal: Vasai Dist: Palghar Material Organisation LBS Marg, Ghatkopar (W) 12. Devram Laxman Bhavari T.No.57188-W Dept: CWH/M.T Add : N.C.H. Colony, 258/12, Padila Marg, Powai, Kanjurmarg (W) 13. Ashok Sakharam Chikane Shipwright, HSK II T.No.13644-W Dept: NSD Sewri Sh-13 Add: TIFR Colony Anuradha-14 Sion Trombay Road, Mandala, Mankhurd-88 Material Organisation 14. Suhas Sudam Ughade A/Painter, HSK II T.No.13650-L Dept: NSD (Sewri) SH-13 Add : D-201, Kunj Comp. Plot No.47, Sector-11, Kamothe, Panvel, 410206 Material Organisation Ghatkopar (W) L.B.S. Marg 15. Shivaji Baburao Jadhav Ship Wright, HSK II T.No.13643-R Dept: NSD (Sewri) SH-13 Add: Plot No.20, Behind Ashvamedh Hotel, Santa Nagar, Pandharpur, Solapur, 413304 Material Organisation LBS Marg, Ghatkopar (W) 16. Shaik Faijan Meerbaksh Shipwright, HSK II T.No.13639-M Dept: CWH/GCP Add: P/17-05, SPDC Colony, Sion Trombay Road, Mankhurd (E) 400088 Material Organisation LBS Marg, Ghatkopar (W) 17. Nitin J. Mistry Shipwright, MCM T.no.52495-L Dept: CTS (Brt) Add: 105 J/22, Love Lane, Tarabaug, Mazgaon, 400010. Material Organisation LBS Marg, Ghatkopar (W) 18. Ranjeet Kumar A/Painter, HSK II T.No.13652-T Dept. CWH/MT Add: P44/06, SPDC Colony, Mankhurd-88 Material Organisation LBS Marg, Ghatkopar (W) 19. Sonali Sachin Sawant A/Painter, HSK II T.No.13651-N Add: A-202, Om Ashtavinayak Co. Housing Soc. Shankar Wadi, Jogeshwari (E) Mumbai-400060 Material Organisation LBS Marg, Ghatkopar (W) 20. Dinesh Manohar Ingale Shipwright, HSK II T.No.50140-E Dept: CWH/SH-29 Add: Lig Colony, N1-1(B) 35/9, Sector-10, Nerul(W) Navi Mumbai-400706 21. Kunal Vilas Parab Engine Fitter, HSK II T.No.13670-A Dept. CTS (Pip) Add: 3927/101, Sector-7, CGS Colony, Antophill, Mumbai-400037 Material Organisation LBS Marg, Ghatkopar (W) 22. Suresh Nivruti Ghokse T/Mate, USL Dept. Cpro T.no.57889-N Add. 2/11, Kannamwar Nagar 02, Santa Dyneshwar Nagar, Near Utkarsha Schook, Vikhroli East, Mumbai 400083 Material Organisation LBS Marg, Ghatkopar West ...Applicants in OA No.239/2018 (By Mr. Kartikey Bahadur, proxy for Mr. L.C. Kranti, Advocate) Versus 1. The union of India through The Flag Officer Commanding-in-Chief Headquarters, Western Naval Command Tiger Gate, Naval Dockyard Mumbai Mumbai - 400001. 2. The Admiral Superintendent, Naval Dockyard Mumbai, Lion Gate Mumbai - 400023. ...Respondents in OA Nos.93 & 497 of 2017 (By Mr. Kartikey Bahadur, proxy for Mr. Sangram Chinnappa, Mr. Suyash Kalbhor, proxy for Mr. R.A. Rodrigues, Advocate In OA 93/2017. Mr. R.R. Shetty, Advocate in OA 497/2017. ) 1. Union of India Through the Secretary Ministry of Defence, South Block New Delhi-110 011. 2. The Chief of Naval Staff Integrated Headquarters, Ministry of Defence (Navy) Sena Bhavan, New Delhi-110 011. 3. Flag Officer-Commanding-in-Chief Headquarters Western Naval Command Tiger Gate, Mumbai-400023 4. Material Organisation Through the Material Superintendent Naval Store Depot, L B S Marg, Ghatkopar West, Mumbai - 400086. ...Respondents in OA No.239 of 2018 (By Mr. R.R. Shetty, Advocate) ORDER Per : Hon'ble Shri. Justice M.G. Sewlikar, Member (J)
All these Original Applications are being disposed of by a common order as the issue involved in all these applications is the same.
By the OA No. 93/2017 and OA No. 497/2017, the applicants are seeking fixation of seniority tradewise and by the OA No. 239/2018, the applicants are seeking the quashment of the circulars dated 20th November, 2015, 29th December, 2016, 30th April, 2015 and 10th January, 2018.
OA 93/2017.
The facts giving rise to this application can be briefly stated thus :
1. The applicants are working in different trades and grades of Artisan Staff and Technical Supervisor Staff in Naval Dockyard Mumbai. The total sanctioned strength of Artisan Staff and Technical Supervisor Staff has been allocated in different trades depending upon workload in different trades through a Manpower Allocation Committee. The allocated number of Artisan and Technical Supervisor Staff for a particular trade carry out their functional duties and responsibilities independently for that trade only. Total sanctioned posts have been sub-organized in different trades for better functional duties and resp0nsibilities.
2. The applicants have alleged that promotions of Technical Supervisors have been carried out as per tradewise seniority roster maintaining sanctioned ratio within grade whereas promotions of Artisan Staff have been carried out wrongly as per combined seniority roster of Artisan Staff pertaining to all trades resulting in non-availability or insufficient number of posting Master Craftsman in few grades for promotion to the next higher grade of promotion of Chargeman. The Cadre of Artisan Staff has been restructured from three grades to four grades along with prescribed ratio within grades with effect from 1st January, 2016 on the basis of MOD order dated 14th June, 2010 as a onetime measure. However, the placements of Artisan Staff have not been carried out as per tradewise seniority roster causing non-availability of Master Craftsman in the applicant's trade. Therefore, few of the applicants have been wrongly promoted directly from Highly Skilled Grade I worker to Chargeman bypassing the next promotion of Master Craftsman resulting into monetary loss of one increment which they could have earned through pay fixation if they had been promoted first from Highly Skilled Worker grade 1 to Master Craftsman. The revised grades for Artisan Staff are (i) Skilled (ii) Highly Skilled Grade II (iii) Highly Skilled Grade I (iv) Master Craftsman.
3. It is alleged in the application that some of the applicants made representation on 21st October, 2016 to respondent no. 2 to carry out promotion of Artisan Staff as per tradewise seniority roster in accordance with rules and Government instructions in this regard. However, resp0ndent no. 2 issued impugned seniority roster of Artisan Staff dated 16th January, 2017 in violation of existing rules and Government instructions.
4. In other Naval establishments, promotions of Artisan Staff have been carried our as per tradewise seniority roster strictly as per rules and Government instructions in that regard. But respondent no. 2 has not carried out promotions of Artisan Staff as per gradewise seniority roster. The Naval Material Organization, Mumbai has been making promotions of the Artisan Staff as per combined seniority roster of different trades instead of tradewise seniority roster. It was challenged by some staff members before this Tribunal vide OA No. 676/2014. The applicants in that OA withdrew the OA on the assurance of the respondents to review promotion of Artisan Staff on the basis of tradewise seniority roster. After withdrawal of OA No. 676/2014, the Naval Unit of Material Organization Mumbai held review meeting of DPC in December, 2016 for last five years as per tradewise seniority list only but the same has not been extended to the Artisan Staff working in Naval Dockyard, Mumbai although both these Naval Units are functioning under the same headquarters of Western Naval Command. The respondents thus turned down the representation made by the applicants.
5. It is further alleged that till promulgation of recruitment rules for the post of Master Craftsman, promotion will continue to remain on the basis of eligibility conditions prescribed under Ministry of Defence order dated 21st September, 1982 wherein it has been stipulated that number of post of Master Craftsman in each trade shall be up to 10 per cent of the total sanctioned posts of Highly Skilled Grade I in each organization which clearly provide equal percentage 0f Master Craftsman on the basis of Highly Skilled Grade I in each trade. Since the Artisan Staff have been restructured with effect from 1st January 2006 on the basis of Ministry of Defence order dated 14th June, 2010, Master Craftsman posts in each trade should be 25 per cent of 55 per cent of the strength of workers in each trade.
6. The applicants have further alleged that as per Column 11 of the Statutory Recruitment Rules 2012 for Tradesmen, the prescribed length of service for promotion to the next higher grade should be in a feeder grade and respective trades also. Therefore, the benefit of promotions against the strength of incumbents placed in one trade cannot be given to the incumbents placed in any other trade. Therefore, in view of the existing recruitment rules promotions of Artisan Staff should be given as per tradewise seniority roster by maintaining intergrades ratio within each trade also as prescribed in MoD order dated 14th June, 2010. Integrated Headquarters MoD/Navy has issued operative instructions to all Naval Commands vide letter dated 25th June, 2012. It is made clear that seniority list as per tradewise revised intergrade ratio depending upon sanctioned/authorized strength in each trade is required to be maintained.
7. Therefore, it is very much essential to review the erroneous promotions made after 1st January, 2006 on the basis of combined seniority roster.
8. Respondents filed their affidavit-in-reply. It is alleged in affidavit-in-reply that Naval Dockyard Mumbai has been granted a combined sanction of 6,037 Industrial Employees (Artisan Staff) and 1,235 Technical Supervisors who are further subdivided into 36 trades as per Rationalization of Trade Structure (RTS-2006) depending on the operational requirement of the Indian Navy. All the 36 different trades are equally important, crucial and work cohesively for undertaking repairs and maintenance work of Ships, Submarines and Yard Crafts. The individual trades are not completely independent and merged at different grades as per Rationalization of Trade Structure (RTS, 2006). These 36 trades have different authorized strength varying between 800 for Electrical Fitter Trade and 01 for Lagger Trade based on current DDMA recommendation. In view of large number of Tradesman with widely varying authorization and merging of trades at higher grades, it is not feasible to maintain gradewise ratio within each trade else it can have an adverse impact on promotion of trades with lower authorization at the expense of trades having higher authorization. Therefore, all trades in Artisan Staff, except at induction level which is Skilled for industrial staff and Chargeman for Technical Supervisor Staff, are being merged for conduct of departmental promotion committees. Since authorization for individual trade is fluid and is changeable by DDMA, maintenance of tradewise sanction for each grade may lead to adverse impact due to frequent changes in trade requirement based on allocation of manpower to various centers. Therefore, seniority in tradewise roster is maintained to ensure that promotion is granted as per seniority in trade although DPC meeting is conducted with gradewise sanction.
9. They contended that promotion from Highly Skilled Grade I (HSK-I) to Chargeman (C/Man) is in order and as per existing SRO. They denied that few of the applicants were wrongly promoted from HSK-I to Chargeman. They have further contended that promotion is being effected based on tradewise seniority and no junior in a particular trade had been promoted ahead of his senior. The strength of Naval Dockyard, Mumbai is much larger than the strength of have 285 tradesman at Material Organization Mumbai{MO(Mbi)}. In view of the large number of Tradesman for widely varying trades, it is not feasible to maintain gradewise ratio within each trade.
10. They have further contended that the option of merging various trades for administrative viability had been provided in IHQ, MoD (Navy) letter dated 25th June, 2012 and the same is being followed in several other organizations within the MoD as indicated in order dated 7th February, 2014. Feasibility to conduct DPC meeting for Artisan Staff based on tradewise sanction for each grade has been discussed with staff/registered Unions of the Naval Dockyard, Mumbai on various occasions. Naval Dockyard administration and staff side are of the view that the current procedure of merging of trades for promotion to grade of HSK-II, HSK-II and MCM is beneficial for all the employees of the Yard irrespective of the trade. It ensures harmonious relation between the employees of different trades working together, especially in multi-trade centers.
11. The applicants have filed rejoinder. In the rejoinder they have contended that vide order dated 25th June, 2012 instructions have been issued to all Naval Command Headquarters to maintain tradewise grade ratio and if there are non-viable trades for meager number of workers, those trades should be grouped together to arrive at a viable ratio. Therefore, all the units in Naval commands except Naval Dockyard, Mumbai have been making promotions of Artisan Staff on the basis of tradewise seniority roster maintaining prescribed grade ratio in each grade. They have denied that the trades are not completely independent and expert in one trade cannot be of any assistance to other trades. Therefore, the benefit of promotion available for one trade's worker on the basis of their strength in their trade cannot be given to other trade workers. They have further contended that the cadre of Artisan Staff and Technical Supervisor Staff has been restructured vide OM dated 14th June, 2010 and 5th April, 2010. After merger of Chargeman-II with Chargeman -I, Chargeman-II is no more in existence. Therefore, as per existing rules there is no provision for direct promotion from HSK-II to HSK-I to Chargeman.
12. The respondents have filed affidavit-in-reply to rejoinder. No new point has been raised in affidavit-in-reply to rejoinder. Therefore, the same needs no mention.
OA 497/2017.
13. The allegations in this OA are almost identical with the allegations made in OA No. 93/2017. In this OA allegations are that the applicants are working as Skilled Workers, Highly Skilled Grade-II workers (HSK-II) and Foremen in Naval Dockyard, Mumbai. The combined sanction of Artisan and Technical Supervisor Staff has been divided in 36 trades as per Rationalization of Trade Structures (RTS) to meet operational requirement of Indian Navy. The channel for promotion is (i) Skilled (ii) Highly Skilled Grade-II (iii) Highly Skilled Grade-I (iv) Master Craftsman (v) Chargeman(vi) Foreman. Out of all these six grades the post of Skilled, Chargeman and Foreman are filled on the basis of tradewise seniority but rest three grades are filled as per combined seniority roster. Remaining allegations are similar as are made in OA No. 93/2017. The applicants contended that it is therefore, essential to review the erroneous promotions made on the basis of combined seniority list instead of tradewise roster with effect from 01st June, 2006.The applicants preferred representations dated 01st& 3rd February, 2017 & 03rd& 21st March 2017. However, the representations have been turned down by the respondents vide order dated 10th March, 2017. They have therefore, prayed for quashing of the orders dated 10th march, 2017, promotion panels dated 29th March, 2017 and promotion orders dated 27th May, 2017 and that they are entitled to promotions on the basis of gradewise seniority maintaining prescribed trade ratio in their trade and that the benefit of review DPC recommendations granted to the naval staff be extended to the similarly affected colleagues working in Naval Dockyard Mumbai.
14. Respondents have raised similar contentions as have been raised in OA No. 93/2017. The applicants filed rejoinder to the affidavit-in-reply of the respondents and raised similar points and therefore, the same needs no mention. In the sur-rejoinder also similar allegations as found in OA No. 93/2017 are made.
15. The respondents filed reply to rejoinder and again raised similar contentions.
OA 239/2018.
16. By this OA No. 239/2018, applicant no. 1, Naval Employees Union assailed the order of demoting the applicants no.2 to 22 and similarly placed individuals and has also sought quashing of the order dated 20th November, 2015, 29th December, 2016, 30th April, 2015 and 10th January, 2018. Applicant nos. 2 to 22 were promoted and thereafter demoted, the details of which are given in a tabulated form thus:
Applicantno.
Name/Trade.
Promotion & Date of Promotion.
Demotion & Date of Demotion.2
Swapnil Suresh Shinde/A/Painter trade HSK-II/2009 SKL/31.10.2013 3 Vivek Chandrakant Naik/Shipwright trade HSK-II/2010 SKL/31.10.2013 4 Pradeep J. Ubale/Millwright Fitter trade MCM/2014 HSK-I/29.12.2016 5 Sachin Bapusaheb Gaikwad/Shipwright trade HSK-II/2009 SKL/31.10.2013 6 Shailesh H. Nevarekar/Engine Fitter trade HSK-II/2016 SKLD/13.09.2017 7 Ramesh Surendra Sutar/Shipwright trade HSK-II/2010 SKL/31.10.2013 8 Balwantrai B. Prajapati/Shipwright trade MCM/2014 HSK-I/29.12.2016 9 Dinesh Gopal Kamble/Shipwright trade HSK-II/2010 SKL/31.10.2013 10 Sanket Manohar Ghadigaonkar/ Shipwright trade HSK-II/2009 SKL/31.10.2013 11 Nitin Shashikant Dhonde/Engine Fitter trade HSK-II/2009 SK/29.12.2016 12 Devram Laxman Bhavari/1 C Fitter (Crane) trade Skilled/2009 T/MATE/29.12.2016 13 Ashok Sakharam Chikane/Shipwright trade HSK-II/2010 SKL/31.10.2013 14 Suhas Sudam Ughade/A/Painter HSK-II/2009 SKL/31.10.2013 15 Shivaji Baburao Jadhav/Shipwright trade HSK-II/2010 SKL/31.10.2013 16 Shaik Faijan Meerabaksh/Shipwright trade HSK-II/2010 SKL/31.10.2013 17 Nitin J. Mistry/Shipwright trade MCM/2013 HSK-I/29.12.2016 18 Ranjeet Kumar/A/Painter HSK-II/2010 SKL/31.10.2013 19 Sonali Sachin Sawant/A/Painter HSK-II/2009 HSK-I/29.12.2016 20 Dinesh Manohar Ingale/Shipwright trade HSK-I/2009 HSK/31.10.2013 21 Kunal Vilas Parab/Engine Fitter trade HSK-II/2010 SKL/31.10.2013 22 Suresh Nivruti Ghokse/T/MATE trade
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17. It is further alleged that on 14th June, 2010 the Ministry of Defence, Government of India modified the 6th Pay Commission recommendations made at para 3.8.27 and consequently amended the Civilian Staff Rules (Revised Pay Rules 2008) in effect restructuring the artisan staff in Defense Establishments. This corresp0ndence reorganized the existing Artisan cadre into (i) Skilled (ii) Highly Skilled Grade-II (iii) Highly Skilled Grade-I and (iii) Masters Craftsman. For determining who would fall where was to be on the basis that 45 per cent of the existing cadre would be granted the pay scale of Skilled Worker (Pay Band of 1900), 25 per cent of the remaining would be granted the pay scale of Master Craftsman (pay band of 4200) and the remaining would be split equally into as Highly Skilled Worker Grade-II (Grade pay of 2400) and Highly Skilled Worker Grade-I (Grade pay of 2800). This was made effective from 1st January, 2006. Vide communication dated 13th October, 2013 the applicants were promoted. Promotions in Material Organization (R-1) have been on the basis of Grade. This mass restructuring was assailed by some employees from the Artisan Staff as a 'Trade versus Grade' controversy by filling OA No. 676/2014. Material Organization referred the controversy to the Flag Officer Commanding in Chief, Western Naval Command, vide communication dated 10th September, 2014. Vide communication dated 14th October, 2014, Western Naval Command replied to the Material Organization that the matter be re-examined at Material Organization in consultation with staff side members of the industrial staff and recommendations along with proposed tradewise list be communicated to the respondents for ensuring immediate action. It is further alleged that contrary to what was being asserted in correspondence dated 14th October, 2014 of the Western Naval Command the Material Organization vide communication dated 14th October, 2014 sought to portray that they had been given permission by Western Naval Command for undertaking restructuring of artisan staff and vide temporary memorandum No. 287 of 2014 constituted a Board consisting of Cdr. Subrat Panda, Mr. Rahul Tyagi, Smt. S.R. Bhosle, Mr. V.C. Naik and Mr. Sharad Kale on the term of reference detailed in that letter.
18. It is further alleged that setting up an ad hoc committee was bad in law , arbitrary and sans substance in terms of practice or procedure. The ad hoc committee conducted the proceedings in an arbitrary, prejudiced and predetermined manner. Respondent no. 4 vide letter dated 30th April, 2015 cancelled the promotion list and demoted applicant no. 4, 11 and 99. This action was met with tremendous protest by the applicants, Naval Employees' Union and other unions registered their protest vide their communication dated 18th August, 2015, 7th September, 2015 and 8th October, 2015. Western Naval Command vide its communication dated 23rd September, 2015 asked the Material Organization to re-examine the issue in the light of the Government of India, Ministry of Defence's correspondence. Directorate of Civilian Personnel, Integrated Headquarters vide its correspondence dated 20thNovember, 2015 clarified its position that restructuring of the artisans will be carried out as per tradewise seniority. Material Organization sought clarification from Western Naval Command vide communication dated 26th February, 2016 as to the date for effecting these changes. The respondents are now trying to recover salary that had been paid to the applicants.
19. The applicants are therefore, seeking quashing of the orders dated 20th November, 2015, 29th December, 2016, 30th April, 2015, and 10th January, 2018 as being illegal and bad in law. It is the case of the applicants that promotions based on grades ensure that there is parity between all the workers whereas tradewise promotion will lead to discrimination between them as small trades will be at a disadvantage to larger trades. Some trades have a sanctioned strength of less than five posts of artisan and tradewise promotions will adversely affect employees working in these trades. Having promotions based on trade instead of grade will lead to various anomalies. Various vacant posts which are to be filed through promotion will lie vacant if no departmental candidate is made available in particular trade while other eligible candidates of other trades will not be promoted despite availability of vacancies in those trades.
20. Respondents filed affidavit-in-reply. It is the case of the respondents that the policy in question was laid down by the Integrated Headquarters (Navy), Government of India, Ministry of Defence, Directorate of Civil Personnel, New Delhi vide their office memorandum dated 25th June, 2012. The tradewise distribution was sought to be done in consonance with the directions specifically set out in Para. 3 of the said circular in the ratio set out by the Government of India, Ministry of Defence in its office memorandum dated 14th June, 2010 whereby restructuring of cadre of Artisan was done in the Defence Establishments. It is further contended that the question of tradewise and grade-wise promotions to be granted to the Tradesmen is not new and is no longer res integra. In the OA No. 676/2014 present applicants were the private respondents and they cannot now agitate about the said cause of action as the Division Bench of this Tribunal has also rendered its decision on it. OA No. 239/2018 is barred by limitation. Tradewise restructuring of staff has been done with effect from 1st January, 2006 to 24th January, 2010 as a one time measure. Review DPC (tradewise) meeting have been conducted for the years 2010-2015, post approval of competent authority. Restructuring of tradewise promotions have been implemented under the restructuring of Artisan Staff. A Board has been constituted for implementing tradewise restructuring of cadre, fixation of tradewise seniority and organizing Artisan Staff at MO (MB), strictly adhering to IHQ/HQWNC directives.
21. Vide letter dated 27th April, 2016 intimation was given that as per MoD letter dated 14th June, 2010, placement of the individuals in the posts resulting from the restructuring shall be made as on 1st January, 2006 by splitting HSK grade into HSK-II and HSK-I. Reversions have not been effected till date.
22. Applicants filled their rejoinder. They contended that OA NO. 676/2014 was withdrawn by the applicants and instructions were given that the private respondents in the said OA were at liberty to approach an appropriate forum to address their grievances. No new point has been raised in the rejoinder. Respondents filed reply to rejoinder. No new point has been made in the reply to rejoinder. Therefore, the same needs no mention.
23. Heard Mr. V.A. Nagrani, learned counsel for the applicants in OA No. 93/2017 & 497/2017, Mr. R.G. Walia, learned counsel for the applicants in OA No. 497/2017 , Mr. Kartikey Bahadur, learned proxy for Mr. L.C. Kranti, learned counsel for the applicants in OA No. 239/2018, Mr. Kartikey Bahadur, learned proxy counsel for Mr. Sangram Chinnappa, learned counsel for the respondents in OA No. 93/2017, Mr. Suyash Kalbhor, learned proxy counsel for Mr. R.A. Rodrigues, learned counsel for the respondents in OA No. 93/2017 & Mr.R.R. Shetty learned counsel for the respondents in OA No. 239/2018 & 497/2017. Mr. V.A. Nagrani, learned counsel for the applicants and Mr. R.R. Shetty have filed written arguments, which have been read by us.
24. Mr. V.A. Nagrani submitted that recruitment rules framed in the year 2012 clearly indicate that seniority has to be fixed tradewise and not gradewise. Clauses 10 & 11 of the Schedule unmistakably show that the seniority has to be tradewise. He submitted that the Integrated Headquarters, Ministry of Defence, Navy ( IHQ MoD) has clarified vide letter dated 14th June 2010, 25th June, 2012 and 20th November, 2015 that the seniority shall be maintained tradewise. These letters have been specifically addressed to the Western Naval Command under which the applicants are working. In para. 2 & 3(a) of OM dated 14th June 2010, it is categorically mentioned that grade structures/ratio even grades in industrial and non-industrial trades stand modified with effect from 1st January, 2006, which clearly imply that all four grade structures and prescribed ratio should be maintained uniformly in all trades.
25. He further submitted that respondents have not produced any document to show that the seniority is to be maintained gradewise for promotion in any Unit under Western Naval Command. He further submitted that the respondents do not dispute that in some of the Units under Western Naval Command, the respondents are maintaining tradewise seniority for promotions pursuant to implementation of MoD orders dated 14th June, 2010 and 25th June, 2012. The principle of tradewise seniority for promotions is being followed throughout the country except the Naval Dockyard, Mumbai. The jobs of Artisan Staff in Navy have been divided into 4 levels Vis.(i) Skilled (ii) Highly Skilled Grade-II (HSK-II) (iii) Highly Skilled Grade-I (HSK-I) and Master Craftesman (MCM) in prescribed ratio of 45:20.5:20.5:14, respectively. Promotions of Artisan Staff is to be carried out as per tradewise seniority roster, so as to maintain prescribed grade-ratio in each trade for functional requirement which cannot be compromised under any circumstances. He further submitted that in office memorandum dated 21st September, 1982 issued by MoD on the subject matter the procedure for selection to the grade of Master Craftsman was laid down, that a number of posts of Master Craftsman in each trade shall be upto 10 per cent of the total number of sanctioned post in Highly Skilled Grade-I in each organization pursuant to the recommendations of the 5th Central Pay Commission (5th CPC). This Office Memorandum was further clarified vide office memorandum dated 20th May, 2003 whereby restructuring of cadre of Artisan Staff in Defence establishment was modified and it was decided that the procedure for selection to the grade of Master Craftsman shall be as laid down in Para. 2 & 3 of MoD OM dated 21th May, 1982 with the exception that the number of Master Craftsman(MCM) in each trade shall be upto 25 per cent of the total sanctioned posts in the Highly Skilled Grade in each organization instead of 10 per cent earlier. Pursuant to the recommendations of 6th CPC MoD issued another OM dated 14th June, 2010 whereby it was further clarified that the post of Master Craftsman shall be part of hierarchy and the placement of Highly Skilled Grade-I in the grade of Master Craftsman will be treated as promotion. Thus MCM was treated as promotion pursuant to the recommendations of 6th CPC with effect from 01st January, 2006.
26. He further submitted that the action of respondents promoting the existing employees from HSK-I to Chargeman bypassing the promotional post of MCM is absolutely illegal. By the OM dated 25th June, 2012 it has been categorically clarified that the commands should work out the tradewise revised intergrade ratio under the sanctioned/authorized strength as on 1st January, 2006. If there are non-viable trades having meager number of workers those trades should be grouped together to arrive at a viable ratio. The said OM further clarified that HSK-I shall be senior to HSK-II and no separate seniority list should be prepared for HSK-I & HSK-II tradewise. Restructuring of Artisan Staff is to be carried out as per tradewise seniority with effect from 1st January, 2006. Pursuant to the various instructions and OMs issued on the subject matter, the recruitment rules for the post of HSK-I were framed in the year 2012. These rules clearly indicate that tradewise seniority has to be framed. He further argued that promotions were granted tradewise even before 1st January, 2006. Therefore, there is no substance in the contentions of the respondents that for last 200 years gradewise seniority is maintained for the promotions of HSK-II to HSK-I, , the eligibility criterion is five years regular service in the respective grade also. He submitted that these rules clearly indicate that seniority has to be on the basis of trades and not on the basis of grades.
27. He further submitted that in terms of OM dated 21st September, 1982 the grade of MCM was created and it is clarified that number of MCM in each trade shall be up to 10 per cent of the total number of sanctioned posts in HSK-I. This provision was subsequently modified vide letter dated 20th May, 2003 that the post of MCM will be 25 per cent in each trade in place of 10 per cent as laid down in OM dated 21st September,1982. The OM dated 14th June, 2010 clarified that the posts of MCM shall be part of hierarchy and the placement of Highly Skilled Grade-I in the grade of MCM shall be treated as promotion. Despite this the applicants are not getting promotions to the post of MCM and are directly being promoted from HSK-I to the post of Chargeman. This is happening because of the combined seniority list.
28. Mr. R.G. Walia, learned counsel for the applicants in OA No. 497/2017 submitted that the respondents have not pointed out any rule to show that the seniority is to be followed gradewise. On the contrary the OM placed on record clearly indicate that seniority has to be followed tradewise. The OM dated 20th November, 2015 clearly show that restructuring of Artisan Staff has to be carried out as per tradewise seniority. He submitted that the communication dated 25th June, 2012 clearly show that seniority has to be tradewise. He further submitted that clause ee of the said letter shows that Highly Skilled Grade-I shall be en-bloc senior to Highly Skilled Grade-II and separate seniority lists should be prepared for Highly Skilled Grade-II to Highly Skilled Grade-I tradewise. The post of Master Craftsman shall be part of the hierarchy and the placement of Highly Skilled Grade-I in the grade of Master Craftsman will be treated as promotion. He submitted that employees are not being promoted as Master Craftsman, they are directly being promoted as Chargemen in violation of the letters of the IHQ, MoD owing to which the applicants are suffering financial loss.
29. Mr. Sangram Chinappa, learned counsel for the private respondent no. 4 to 7 in OA No. 93/2017 submitted that RHHO, MoD Navy has issued operative instructions wherein it is directed to maintain tradewise intergrade ratio if the vacancies in the trade are 5 or above. Mr. Sangram Chinappa, learned counsel submitted that promotions based on trade instead of grade will lead to various anomolies. Various vacant posts which are to be filed through promotions will lie vacant if no departmental candidate is made available in a particular trade while other eligible candidates of other trades will not be promoted despite availability of candidates in those trades. He invited attention to a communication dated 10th September 2014, stipulating that restructuring is to be worked out as tradewise revised intergrade ratio. The said letter further states that this organization does not have tradewise sanction.
30. Mr. R.R. Shetty, learned counsel for the respondents has also filed written arguments. He submitted that in the communication dated 25th June, 2012 it is categorically mentioned that wherever the grade structure in the industrial as well as non-industrial trades is already exisiting in the ratio of 45:55, the erstwhile Skilled and Highly Skilled Grades, and 25 per cent Highly Skilled in the grade of Master Craftsman, then the ratio will be 45 per cent of the posts be granted skilled grade, 25 per cent of the remaining 55 per cent i.e. 13.75 per cent are to be granted the grade pay of Master Craftsman i.e. Grade pay of Rs. 4200, in the pay band PB-2 and finally the remaining posts which happen to be 20.625 per cent each are to be granted HSK-II & HSK-I respectively. Communication dated 15th October,2013 has clarified that MoD circular dated 14th June 2010 does not specify restructuring to be done tradewise or otherwise. Communication dated 25th June, 2012 can be interpreted as a group of trades (including the trade of the Yard as a whole) and continue with process already in practice since inception. Tradewise allocation is not mandatorily required to be done but a homogenous mix has to be followed in order to advance the intention of the executive in using the workers in the best possible manner to achieve their objective. Competent authority vide communication dated 3rd June, 2011 has issued necessary clarifications/instructions for carrying out the restructuring of Artisan Staff based on the MoD communication dated 14th June, 2010. Out of the total 6037 Artisans who are divided into 36 grades, only few of them in the current OA have invoked the jurisdiction of this Tribunal seeking tradewise promotion. Communication dated 27th May, 1969 shows that the strength of Industrial employees should be a mix of tradesman, labourers and miscellaneous at 4887 without giving any further tradewise break up. Therefore, promotions are to be granted tradewise. This procedure has been followed since time immemorial. If policy of gradewise promotions are to be followed from inception, the vertical and horizontal relativities in the organization of persons in one trade as compared to other will be severely disturbed.
31. The option of clubbing of trades for administrative convenience finds place in Para. 3(aa) of the communication dated 25th June,2012. This Naval Dockyard has a bulk sanction and any tradewise sanction and tradewise strength allocation needs to be changed to meet the technological advancement in the Indian Naval Ships. Promotions from HSK-I to Chargeman have been ratified by the Ministry of Defence and accepted by Principal Controller of Defence Accounts (Navy) {PCDM(N)} vide order dated 21st December, 2016. He further submitted that letter dated 20th May, 2015 pertains to conduct of Review DPCs of Artisan Staff of MO(Mbi). In view of large number of tradesman with widely varying authorization and merging of trades at higher grades, it is not feasible to maintain tradewise ratio within each grade since it can have an adverse effect on promotion of trades with lower authorization at the expense of trades having higher authorization. Therefore, all trades in Artisan Staff are being merged for conduct of Departmental Promotion Committees. He submitted that the applicants have not pointed out any instance of any junior being promoted ahead of his senior. The Naval Dockyard, Mumbai since its inception has been following gradewise promotions of Artisan Staff wherein individuals who have completed qualifying criteria as promoted to higher grade based on overall vacancy in that grade. This procedure ensures that no junior in his own trade or other trades is promoted ahead of the senior.
32. He further submitted that some of the applicants have been promoted on the basis of combined seniority list. Therefore, they are estopped from contending how that tradewise seniority be introduced as they got the promotion on the basis of gradewise seniority.
33. Mr. R.A. Rodrigues, learned counsel for the Union of India submitted that there is delay in challenging the seniority. Restructuring of the staff was ordered in the year 2010 and applicants are challenging the same in 2018. In the meantime several promotions have taken place and they cannot be disturbed. He further stated that the applicants are guilty of delay and laches and ,therefore, they are not entitled to any kind of relief.
34. We have given thoughtful considerations to the submissions made by the learned counsels for the applicants in all the OAs and learned counsels for the respondents in all the OAs.
35. There are no clear instructions/guidelines as to how the seniority is to be fixed in the Navals organizations. In some organizations it is fixed tradewise and in some organizations like the present one it is a combined list i.e. tradewise and gradewise. Also It appears that the seniority list is being prepared on the basis of the OMs. OM No. 11(5)/2009-D(Civ.I), Government of India, Ministry of Defence dated 14th June, 2010 for restructuring cadre and Artisan Staff in Defence Establishments in modification of recommendations of 6th CPC was issued. By this OM sanction of the President for restructuring of cadre of Artisan Staff in different establishment was accorded. This OM further states that the grade structure in the Industrial as well as non-industrial trades and the pay scales of the Defence Artisan Staff shall stand modified with effect from 1st January, 2006. The grades were restructures as Skilled, Highly Skilled Grade-II, Highly Skilled Grade-I and Master Craftsman.
36. This OM states that wherever the grade structure in the industrial as well as non-industrial trades is already existing in the ration of 45:55, the erstwhile Skilled and Highly Skilled, and 25 per cent of Highly Skilled in the grade of Master Craftsman, the following will apply:
(i)45% of the post may be granted the pay scale of Skilled Worker(Grade pay of Rs. 1900 in the Pay Band PB-I)
(ii)25% of the remaining 55 per cent may be granted the pay scale of MCM(Grade Pay of Rs. 4200 in the pay band PB-2)
(iii)The remaining posts may be divided in a ratio of 50:50 and redesignated as Highly Skilled Worker Grade-II (Grade Pay of Rs. 2400 in Pay Band PB-I) and Highly Skilled Worker Grade-I (Grade Pay of Rs.2800 in Pay Band PB-I)
(iv) The placement of the individuals in the posts resulting from the restructuring shall be made w.e.f. 1.1.2006, in relaxation of the conditions, if any, i.e. trade test etc. as one time measure.
(v) Highly Skilled Grade I shall be en-bloc senior to Highly Skilled Grade II.
37. The letter further states that the post of Master Craftsman shall be part of the hierarchy and the placement of Highly Skilled Grade I in the grade of Master Craftsman will be treated as promotion.
38. This OM nowhere states that the seniority should be fixed tradewise. The contents of the OM even remotely do not suggest that seniority should be fixed tradewise and not gradewise. Therefore, this OM is of no assistance to the applicants for determining whether seniority is to be fixed tradewise.
39. Heavy reliance is placed on the letter dated 25th June, 2012 by Mr. V.A. Nagrani & Mr. R.G. Walia, learned counsels for the applicants. They contended that Para. 3(aa), 3(ee) & 3 (gg) of the letter shows that the seniority is to be fixed tradewise. These paras are quoted for facility of reference:
"3(aa) The commands should work out the tradewise revised inter-grade ratio on the sanctioned/authorized strength as on 01.01.06 in the ratio as mentioned in para 9 (iii) above as clarified vide M of D letter referred at 2 (a) above. If there are non-viable trades having meager number of workers (say less than five), those trades should be grouped together to arrive at a viable ratio.
3(ee) Highly Skilled Grade-I shall be en-bloc senior to Highly Skilled Grade-II and separate seniority lists should be prepared for Highly Skilled Gr-I & Highly skilled Gr-II tradewise. The said seniority lists will be circulated to all concerned.
3(gg) The post of Master Craftsman shall be the part of the hierarchy and the placement of Highly Skilled Grade-I in the grade of-Master Craftsman will be treated as promotion. No. DQE, to be conducted for placement of personnel in Artisan structure w.e.f 01.01.2006 to 14.06.2010, thereafter DPCs to be conducted as per the prevalent RRs. MCM will be part of hierarchy."
40. At the first blush it appears that this letter contains directions to fix seniority tradewise but on close scrutiny it does not appear to be so. Para 1 & 2 of the letter clearly envisage that this letter does not pertain to the Artisan Staff/Cadre. Para 1 & 2 is quoted for facility of reference:
"1. The Operative instructions for implementing the revised cadre structure of Artisan staff in the Navy are based on various orders issued by the Govt. on the subject.
2. Consequent to re-structuring of the Artisan Cadre vide the following letters
(a) Mod ID No. 11 (5)/2009-D(civ-I) dtd.14th June,2010.
(b)Mod ID No. 11 (5)/2009-D(civ-I)dtd.1stDec, 2010.
(c)Mod ID No. 11 (5)/2009-D(civ) dtd.8th Jul,2011.
the grade structure in the Industrial Cadre has been revised as under:-
(i) As per para-2 of the M of D letter at 2 (a) above, the grade structure of the industrial Cadre and the pay scales/Pay Bands and grade pays shall stand modified w.e.f 01-01-2006 as under:-
SL.No. GRADE PAY BAND GRADE PAY I Skilled PB-1,Rs.5200-20,200 Rs. 1,900/-
II Highly skilled, Grade-II PB-1,Rs.5200-20,200 Rs. 2,400/-
III Highly Skilled, Grade-I PB-1,Rs.5200-20,200 Rs. 2,800/-
IV Master Craftsman PB-2,Rs.9,300-34,800 Rs. 4,200/-
(ii) In the Navy, in the Industrial Trades the existing grade structure was in the ratio of 45:55 for the erstwhile skilled and Highly Skilled Grades and 25% of Highly Skilled Grade posts were in the grade of Master Craftsman in accordance with M of D Letter No. 11(1)/2002/D(Civ-I)dt. 20.05.2003.
(iii) Consequent upon the issue of M of D letter No. 11(5)/2009-D(Civ-I) dated 14.06.10, the ration of the grades in the industrial trades shall be as per para 3(a) of the said letter with effect from 01.01.2006 and the same is as follows:-
(a) 45% of the posts may be granted the pay scale/Pay Band & Grade Pay of Skilled Worker (Grade pay of Rs. 1,900 in the Pay Band PB-I)
(b) 25% of the remaining 55% may be granted the pay scale/Pay Band & Grade Pay of MCM (Grade Pay of Rs. 4,200 in the pay band PB-2);and
(c) The remaining posts may be divided in the ration of 50:50 and re-designated as Highly Skilled Worker Grade-II (Grade Pay of Rs. 2,800 in Pay Band PB-I) The revised ratio/percentage of different grades in the industrial trades is summarized as follows:
SL.No. GRADE PERCENTAGE I Skilled 45 II Highly Skilled, Grade-II 20.625 III Highly Skilled, Grade-I 20.625 IV Master Craftsman 13.75
41. This letter clearly shows that restructuring of the Artisan Cadre was done and now grade structure in the Industrial trades has been revised. Remaining paras contain instructions as to how revised structure in the industrial cadre has to be carried out. From the tenor and language of the letter it is more than clear that these instructions do not pertain to Artisan Cadre/Staff but they pertain to the industrial cadre. Admittedly industrial cadre in Naval Dockyard followed tradewise seniority. In para 2 of the letter dated 25th June, 2012 there is a reference of Mod ID No. 11 (5)/2009-D(civ-I) dtd.14th June,2010. This para 2 indicates that restructuring of Artisan Staff has been done. The letter dated 14th June, 2010 is placed on record (page 45). It deals with restructuring of cadre of Artisan Staff in Defence Establishments in modifications of recommendations of 6th CPC. The tenor and language of this letter does not indicate that the seniority is to be fixed tradewise or gradewise but only contains instructions to modify the grade structure into Skilled, Highly Skilled Grade-II, Highly Skilled Grade-I and Master Craftsman. The important clause in this letter are para 3 & 4. The same is quoted for facility of reference:
"3. (a) wherever the grade structure in the industrial as well as non-industrial trades is already existing in the ratio of 45:55, the erstwhile Skilled and Highly Skilled, and 25 per cent of Highly Skilled in the grade of Master Craftsman, the following will apply:
(i) 45% of the post may be granted the pay scale of Skilled Worker (Grade pay of Rs. 1900 in the Pay Band PB-I)
(ii) 25% of the remaining 55 per cent may be granted the pay scale of MCM (Grade Pay of Rs. 4200 in the pay band PB-2)
(iii) The remaining posts may be divided in a ratio of 50:50 and redesignated as Highly Skilled Worker Grade-II (Grade Pay of Rs. 2400 in Pay Band PB-I) and Highly Skilled Worker Grade-I (Grade Pay of Rs.2800 in Pay Band PB-I)
(iv) The placement of the individuals in the posts resulting from the restructuring shall be made w.e.f. 1.1.2006, in relaxation of the conditions, if any, i.e. trade test etc. as one time measure.
(v) Highly Skilled Grade I shall be en-bloc senior to Highly Skilled Grade II.
4. (i) The post of Master Craftsman shall be part of the hierarchy in the placement of Highly Skilled Grade I in the grade of Master Craftsman will be treated as promotion.
(ii) In the case of Defence Establishments where there is no category of Skilled Workers and direct recruitment is made 100% at the level of Highly Skilled, the posts of Master Craftsman existing as on 1.1.2006 will be placed in PB-2 + GP-4200 and the remaining posts of Highly Skilled Workers may be bifurcated in HS-I and HS-II in the ratio of 50:50
(iii) In view of the above re-structuring, the artisan staff may be allowed to give revised option for pay fixation w.e.f. 1.1.2006 within three months from the date of issue of orders in this regard\
(iv) The existing recruitment rules for the Tradesman may be amended and RRs for the post of MCM may be framed accordingly."
42. This letter nowhere indicates that seniority is to be fixed tradewise or gradewise. It deals with the effect of restructuring of cadre of Artisan Staff on account of modifications on recommendations of 6th CPC.
43. Heavy reliance has been placed on clause 10 & 11 of schedule of the integrated Headquarters Ministry of Defence (Navy) Group 'C' Industrial posts (Tradesman) Recruitment Rules, 2012. Relevant paras of the rule for the post of Highly Skilled Grade-I has been quoted for facility of reference:-
(10) (11) By promotion failing which by deputation/re - Promotion: Employment of Ex-servicemen.:
Tradesman Highly Skilled Grade-II with 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 fifty percent aggregate, failing that Tradesman Skilled having thirteen years combined service in the grade of Tradesman Highly Skilled Grade-II and Tradesman Skilled and who have passed in the departmental qualifying examination.
____________________________________________________________ _________________________________________________________________
44. It was argued that the works and the grade in the respective trade also (Clause 11), clearly indicate that seniority has to be fixed tradewise. We are not impressed with these submissions. Clause 11 lays down the eligibility criteria for the promotion of tradesman, Highly Skilled Grade-I. Tradesman, Highly Skilled Grade-II is the feeder post for promotion to Tradesman Highly Skilled Grade-I. This Clause 11 has no concern with fixation of seniority. It only stipulates the eligibility conditions for the promotion to the post Tradesman-Highly Skilled Grade-I.
45. Another letter on which reliance was placed is the letter dated 15th October, 2013. This letter simply speaks about restructuring of Artisan Staff by working out the tradewise revised intergrade ratio on the sanctioned/authorized strength as on 01st June, 2006. It nowhere shows that seniority should be fixed tradewise and not grade-wise. The letter dated 10th September, 2014 shows that this organization does not have tradewise sanction. None of these letters shows that seniority list should be fixed tradewise. None of these correspondences shows that there is any direction to fix the seniority tradewise. The entire correspondence shows that the directions are to the effect that there should be restructuring of grades and tradewise revised intergrade ratio. Restructuring of grade and tradewise revised intergrade ratio does not convey the meaning that the seniority should be fixed tradewise.
46. Reliance was placed on letter dated 20th November, 2015. This letter states that as per letter dated 14th June, 2010, the placements of the individuals in the posts resulting from the restructuring shall be made w.e.f 1st January, 2006 in relaxation of the conditions, if any, i.e. trade test etc be given as one time measure. Therefore, it implies restructuring of Artisan Staff to be carried out as per tradewise seniority. It was argued that this clearly shows that seniority has to be prepared tradewise. We cannot accede to this submission. It only shows that restructuring of Artisan Staff has to be carried out as per tradewise seniority. It does not show that the seniority list should be prepared tradewise. Entire correspondence only shows that the focus was on restructuring of the cadre. The letter dated 14th June, 2010 is regarding modifications of grade structure in industrial as well as non-industrial trades. The letter dated 14th June, nowhere indicates that seniority should be fixed tradewise. Para. 3 (b) only shows that the placements of individuals in the posts resulting from the restructuring shall be made w.e.f. 1.1.2016, in relaxation of the conditions, if any, i.e. trade test etc. as one time measure. The letters dated 25th June, 2012 and 15th October, 2013 indicate that restructuring of industrial cadre is to be carried out as per tradewise revised intergrade ratio on the sanctioned/authorized strength as on 1st January, 2006. This does not indicate that the seniority should be fixed tradewise. Therefore, on the basis of a stray statement in letter dated 20th November, 2015, it cannot be concluded that seniority is to be prepared tradewise.
47. It was argued that because of fixation of seniority gradewise the employees lose one chance of promotion as Master Craftsman, secondly they lose benefit of one increment. It was pointed out inletter dated 14th June, 2010 that the post of Master Craftsman shall be part of the hierarchy and the placement of HSK-I in the grade of Master Craftsman will be treated as promotion. If the applicants are placed in HSK-I in the grade of Master Craftsman, it will be treated as promotion. Naturally they will be entitled to the Pay Scale of Master Craftsman. Moreover it is not explained as to how they will lose one increment and that will affect their ultimate pay. Some of the applicants have been directly promoted as Chargeman instead of promoting them as Master Craftsman. Therefore, they have got higher Pay Scale. The applicants should have come up with calculations to show that by bypassing the promotion as Master Craftsman and promoting directly to Chargeman they will lose one increment and that will adversely affect them financially. Without such calculations, on the basis of a bald statement it cannot be concluded that their direct promotion will have adverse financial implications.
48. Even if it is assumed for the sake of the arguments that seniority is to be fixed tradewise, applicants still don't stand to gain. Instructions were first issued on 14th June, 2010 and they were made effective from 1st January, 2006. Some of the applicants have been promoted as HSK-I and some of the applicants have been promoted as Chargeman. It clearly shows that they reaped the benefit of gradewise seniority. After obtaining promotions they cannot turn around and say that the seniority should have been fixed tradewise and not gradewise. Mr. R.R. Shetty, learned counsel for the respondents placed reliance on the case of OM Prakash Shukla Vs. Akhilesh Kumar Shukla And Others,1986 (Supp) Supreme Court Cases285. Para 24 of the judgement is quoted for facility of reference:
"24. Moreover, this is a case where the petitioner in the Writ Petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates who had appeared here. The same yardstick should have been applied to the candidates in the district of Kanpur also. They were not responsible for the conduct of the examination."
49. These observations of the Apex Court squarely apply to the facts of the case in hand. Some of the applicants got the promotion on the basis of seniority fixed gradewise. If they had any objection regarding fixation of seniority gradewise, they should have raised objections at the first instance. However, they raised it after they got the promotion.
50. These instructions were issued on 14th June, 2010 and for the first time after seven years the applicants are challenging on the ground that the instructions are not followed and that they should now be followed. Representation were made on 3rd February, 2017 and 21st March, 2017. So from the year 2010 to 2017, no steps have been taken by the applicants for implementing the said instructions by framing the seniority list tradewise. Therefore, they are not entitled to the relief on account of unexplained delay and laches.
51. Mr. R.R. Shetty placed reliance on the case of Union of India of India And Others Vs. M.K. Sarkar, (2010) 2 Supreme Court Cases 59, in which it is held thus:
"15. When a belated representation in regard to a "Stale" or "dead" issue/ dispute is considered and decided, in compliance with a direction by the court/tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the "dead" issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches."
52. After 7 years this issue is being challenged. In the meantime several promotions must have taken place that cannot be upset.
53. Mr. R.R. Shetty, learned counsel for the respondents submitted that applicants have not impleaded all the other employees who would be affected because of fixation of seniority tradewise. For this purpose he placed reliance on the case of State of Bihar And Others Vs. Kameshwar Prasad Singh And Another, (2000) 9 Supreme Court Cases 94. Para 26 of the Judgement read thus:
"26. It appears that the High Court totally lost sight of the fact that in this petitions filed from time to time Brij Bihari Prasad Singh had not impleaded any of his seniors as party-respondents. In the absence of persons likely to be affected by the relief prayed for, the writ petitions should have normally been dismissed unless there existed specific reasons for non-impleadment of the affected persons. Neither was any reason assigned by the writ petitioners nor did the court feel it necessary to deal with this aspect of the matter. Ignoring such a basic principle of law has resulted in the supersession of 168 Inspectors and 407 Deputy SPs. The writ petition filed by Brij Bihari Prasad Singh being totally misconceived, devoid of any legal force and prayers made being in contravention of the rules applicable in the case deserved dismissal, which was unfortunately not done with the result that the interests of many seniors have been threatened, endangered and adversely affected. The appeal of the State has, therefore, to be allowed by setting aside the impugned judgement.
54. He has also placed reliance on the case of B.V. Sivaiah And Others Vs. K. Addanki Babu And Others, (1998) 6 Supreme Court Cases 720. We cannot cannot agree with the submission of the learned counsel for the respondents. The applicants are not challenging the seniority of specific individuals. They contend that gradewise seniority should be done away with as the same is in contravention of the policy of the respondents. The policy of the respondents is to fix seniority tradewise. Therefore, the only authority whose presence is necessary is the respondents and they have been made parties. In the case of A. Janardhana VS. Union of India And Others, (1983) 3 Supreme Court Cases 601, following observations were made:
"36. It was contended that those members who have scored a march over the applicant in 1974 seniority list having not been impleaded as respondents, no relief can be given to the appelant. In the writ petition filed in the High Court, there were in all 418 respondents. Amongst them, first two were Union of India and Engineer-in-Chief, Army Headquarters, and the rest presumably must be those shown senior to the appelant. By an order made by the High Court, the names of respondents 3 to 418 were deleted since notices could not be served on them on account of the difficulty in ascertaining their present addresses on their transfers subsequent to the filling of these petitions. However, it clearly appears that some direct recruits led by Mr. Chitkara appeared through counsel Shri. Murlidhar Rao and had made the submissions on behalf of the direct recruits. Further an application was made to this court by nine direct recruits led by Shri. T. Sudhakar for being impleaded as parties, which application was granted and Mr. P.R. Mridul, learned senior counsel appeared for them. Therefore, the case of direct recruits has not gone unpresented and the contention can be negatived on this short ground. However, there is a more cogent reason why we would not countenance this contention. In this case, applelant does not claim seniority over any particular individual in the background of any particular fact controverted by that person against whom the claim is made. The contention is that criteria adopted by the Union Government in drawing up the impugned seniority list are invalid and illegal and the relief is claimed against the Union Government restraining it from upsetting or quashing the already drawn up valid list and for quashing the impugned seniority list. Thus the relief is claimed against the Union Government and not against any particular individual. In this background, we consider it unnecessary to have all direct recruits to be impleaded as respondents. We may in this connection refer to G.M., South Central Railway, Secundrabad v. A.V.R. Siddhanti. Repelling a contention on behalf of the appelant that the writ petitioners did not implead about 120 employees who were likely to be affected by the decision in the case, this court observed [SCC para 15, p. 341 (l&S) p. 296] the respondents (origina petitioners) are impeaching the validity of those policy decisions on the ground of their being violative of Articles 14 and 16 of the Constitution. The proceedings are analogous to those in which the constitutionality of a statutory rule regulating seniority of government servants is assailed. In such proceedings, the necessary parties to be impleaded are those against whom the relief is sought, and in whose absence no effective decision can be rendered by the court. Approaching the matter from this angle, it may be noticed that relief is sought only against the Union of India and the concerned Ministry and not against any individual nor any seniority is claimed by anyone individual against another particular individual and therefore, even if technically the direct recruits were not before the court, the petition is not likely to fail on that ground. The contention of the respondents for this additional reason must be negatived"
55. This decision of the Hon'ble Supreme Court squarely applies to the facts of the case in hand. In the instant case also the applicants are not challenging the seniority of particular employees, but they want the policy of fixing seniority grade wise to be implemented. For this relief, presence of other employees is not absolutely necessary. It is a settled law that party is a necessary party without whose presence matters in controversy cannot be effectively adjudicated upon. In the case in hand, what is tried to be implemented is the policy of the respondents in fixing seniority of individual employees. Hence, affected employees are not necessary parties to the application. Therefore, their non-addition cannot result in non-suiting the applicant.
56. Mr. R.G. Walia, learned counsel for the applicants in OA No. 497/2017 placed reliance on the case of State of Karnataka And Others Vs. C.Lalitha, (2006) 2 Supreme Court Cases 747 and Uttaranchal Forest Rangers' Assn (Direct Recruit) And Others Vs. State of U.P. And Others, (2006) 110 Supreme Court Cases 346, for the proposition that seniority is to be governed according to the provisions of seniority rules existing and enforced at the time of appointment.
57. The seniority is being fixed on the basis of the circulars and the letters. As indicated earlier none of the correspondence contains any direction regarding fixation of seniority tradewise.
58. Reliance was also placed by Mr. R.G. Walia, learned counsel for the applicants in OA No. 497/2017 on the case of State of Uttar Pradesh Vs. Singhara Singh And Others, (1964) 4 SCR 485: AIR 964 SC 358: (1964) 1 Cri LJ 263 (2), for the proposition that when an order is given to do a thing in a certain way, it must be done in that way or not at all. He also placed reliance on the case of M/s. Hindustan Aeronautics Ltd., Banglore Vs. Commissioner of Income-Tax, Karnataka-I, AIR 2000 Supreme Court 2178, for the proposition that circular/office memorandum/letter issued contrary to the law cannot be directed to be effected.
59. Applicants have not pointed out a single instance to show that a junior has been promoted ahead of the senior or junior applicants did not get timely promotions in lower grades.
60. In the case of Malcom Lawrence Cecil D'Souza Vs. Union of India And Others, (1976) 1 Supreme Court Cases 599, relied on by Mr. R.A. Rodrigues, learned counsel for the official respondents in O.A. No. 93/2017 following observations are made:
"9. Although security of service cannot be used as a shield against administrative action for lapses of a public servant, by and large one of the essential requirements of contentment and efficiency in public services is a feeling of security. It is difficult no doubt to guarantee such security in all its varied aspects, it should at least be possible to ensure that matters like one's position in the seniority list after having been settled for once should not be liable to be reopened after lapse of many years at the instance of a party who has during the intervening period chosen to keep quiet. Raking up old complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of some time."
61. In this case also there is delay of six years in agitating their grievance. At such a late stage no direction can be given to upset the seniority which has been earlier fixed.
62. Now the question is with respect to OA No. 239/2018. By this application the applicants are seeking quashment of the order dated 29th December, 2016, thereby 100 employees, including the applicants have been reverted. They are also seeking quashment of the letter dated 20th November, 2015. The applicants have not challenged the first letter dated 14th June, 2010 by which restructuring of grade was directed to be effected with effect from 1st January, 2006. They have also not challenged the letter dated 25th June, 2012 on the same subject. Without challenging these two letters, the letter dated 20th November, 2015 & 14th June, 2010 cannot be challenged. In view of this challenge to this letter fails. So far reversion of the applicants is concerned, it is worth noting that the applicants challenged it after two years. The applicants in fact have not been reverted, the order of promotion was cancelled. They had nowhere alleged that before cancelling the promotion order they were not given hearing. Having regard to the fact that Material Organization is a Trade Organization and considering the number of employees in the Material Organization i.e. 285, we do not deem it appropriate to direct the respondents to carry out promotions on the basis of tradewise seniority. In view of this, all the applications are devoid of merit. Hence the order:
All the applications (OA No. 497/2017, 93/2017 & 239/2018) stand dismissed. No costs.
(Dr. Bhagwan Sahai) (Justice M.G. Sewlikar)
Member (A) Member (J)
/ac/
58
O.A. No. 497/2017, 93/2017 & 239/2018.