Kerala High Court
Union Of India vs T. Karthikeyan on 22 January, 2020
Bench: K.Vinod Chandran, V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 22ND DAY OF JANUARY 2020 / 2ND MAGHA, 1941
OP (CAT).No.130 OF 2018
AGAINST THE ORDER/JUDGMENT IN OA 1086/2014 DATED 10-10-2017
OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
PETITIONER/S:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT
OF INDIA, MINISTRY OF AGRICULTURE & FARMERS
WELFARE, DEPARTMENT OF ANIMAL HUSBANDRY,
DAIRYING & FISHERIES, KRISHI BHAVAN, NEW DELHI
-110001.
2 THE DIRECTOR
CENTRAL INSTITUTE OF FISHERIES, NAUTICAL AND
ENGINEERING TRAINING (CIFNET), MINISTRY OF
AGRICULTURE & FARMERS WELFARE, DEPARTMENT OF
ANIMAL HUSBANDRY, DAIRYING & FISHERIES,
FORESHORE ROAD, KOCHI - 682016.
3 THE SENIOR ADMINISTRATIVE OFFICER
CENTRAL INSTITUTE OF FISHERIES, NAUTICAL AND
ENGINEERING TRAINING (CIFNET), MINISTRY OF
AGRICULTURE & FARMERS WELFARE, DEPARTMENT OF
ANIMAL HUSBANDRY, DAIRYING & FISHERIES,
FORESHORE ROAD, KOCHI - 682016.
BY ADVS.
ASSISTANT SOLICITOR GENERAL
SRI.T.V.VINU, CGC
O.P(CAT) No.130 of 2018
2
RESPONDENT/S:
T. KARTHIKEYAN
S/O. THIRUNAVUKARASU, COOK GR-I, CENTRAL
INSTITUTE OF FISHERIES, NAUTICAL AND
ENGINEERING TRAINING (CIFNET), CHENNAI UNIT,
MINISTRY OF AGRICULTURE & FARMERS WELFARE,
DEPARTMENT OF ANIMAL HUSBANDRY, DAIRYING &
FISHERIES, ROYAPURAM, CHENNAI-13 AND RESIDING
AT 22 THIRUVALLUVAR PETTAI, 1ST CROSS STREET,
ANKAPUTHUR, CHENNAI - 600070.
R1 BY ADV. SRI.T.A.RAJAN
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 22.01.2020,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P(CAT) No.130 of 2018
3
JUDGMENT
O.P(CAT) No. 130/2018
Dated this the 22nd day of January, 2020 Vinod Chandran, J.
The petitioner-Union of India is aggrieved with the order of the Tribunal directing the 2nd financial up-gradation as per Assured Career Progression Scheme (for short ACP Scheme) to be granted to the petitioner. On the brief facts, it is to be noticed that the applicant was appointed as 'Topass' on an ad-hoc basis by Annexure A1 dated 23.06.1982. He was regularised as a Cook Grade II as on 07.06.1984 evidenced from Anexure A3 and A4. By Annexure A5 the applicant is re-designated as Jr. Deckhand-cum-Cook with effect from 23.05.1986 and promoted as Cook Grade I by Annexure A6 dated O.P(CAT) No.130 of 2018 4 16.10.1996. His claim is for 2nd upgradation as per ACPS as on 23.06.2006 being eligible to count the ad-hoc service also for the purpose of upgradation.
2. The learned Central Government Standing Counsel(CGSC) argues that if at all the appellant is entitled for ACP, he is so entitled only from 07.06.2008 counting his regular service from 07.06.1984. Without prejudice to the aforesaid contention it is submitted that the applicant being not in an isolated post and also having no further promotional avenues there can be no financial upradation granted to the applicant.
3. The learned Counsel for the applicant however, submits that there is a specific circular which speaks of identification of analogous posts if there is no promotional avenues. The ACPS was referred, to contend that the benefit of O.P(CAT) No.130 of 2018 5 upgradation is granted in all cases where there is no adequate promotional avenues. It is asserted that he is entitled to treat the ad-hoc appointment as a regular appointment since he was sponsored through the Employment Exchange appointed on the basis of such sponsorship and continued till regularisation.
4. We have already held that ad-hoc appointment cannot inure to the benefit of an employee for consideration of financial upgradation under the ACPS and MACPS as has been earlier found in Union of India and others v. P.J.Mary [(2011)1 KHC 861]. The ACPS under which the claim is raised specifically speaks of regular service as reckoned for promotion and there could be no reckoning of ad-hoc service. Further, we notice that if the ad-hoc service is reckoned from 1982, the O.P(CAT) No.130 of 2018 6 entitlement of the petitioner for the first ACP arises on 12 years completion, 1994 at which point he never sought for it. As far as the second upgradation as per ACPS, it would arise on 24 years from the initial entry, if, in the second 12 year period he has not obtained any promotion. After 1994, the applicant was promoted as Cook Grade I on 16.10.1996 which dis-entitles him from the second financial upgradation. We observe so only to point out the fallacy in the argument of the applicant that he should be entitled to reckon his ad-hoc service also for consideration under the ACPS.
5. The ACP Scheme itself speaks so: "The ACP Scheme needs to be viewed as a 'Safety Net' to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of O.P(CAT) No.130 of 2018 7 adequate promotional avenues." The only provision according to the learned CGSC for providing upgradation in the event of no promotional avenues is as per clause (7) which speaks of isolated posts. The applicant's post is not an isolated post since it has a feeder category. In this context we have to look at the circular referred to in the reply statement filed by the respondents which is produced as Ext.P2. Specific reference is made to clarification issued at Sl.No.32 vide DOPT O.M. No.35034/1/97-Estt.(D) (Vol-IV) dated 10.02.2000. The clarification reads as follows:
"such a cadre/hierarchy shall not fall in the isolated category as defined at Sl.No.31 above. Hence the standard/common pay scales mentioned Annexure II of the Office Memorandum dated 09.08.1999 shall O.P(CAT) No.130 of 2018 8 not be applicable in such cases. Action in such cases may, therefore, be taken as per following clarifications: (I) if such cadre/hierarchy exists in the Ministry/Department concerned, the second upgradation may be allowed in keeping with the pay scale of an analogous grade of a cadre/post in the same Ministry/Department. However, if no such grade exists in the Ministry/Department concerned, comparison may be made with a analogous grade available in other Ministries/Departments.
(ii) In the case of attached/subordinate offices, the second upgradation under the ACPS may be given in keeping with the pay scale of an analogous grade of a cadre/post of the concerned office. However, if no O.P(CAT) No.130 of 2018 9 such cadre/post exists in the concerned office, comparison may be made with an analogous grade available in other attached/subordinate offices of the Ministry/Department concerned."
6. In such circumstances, the clarification clearly indicates the upgradation to be given to the scale of an analogous higher post.
7. In the present case, it is the specific contention of the Department that there is only an analogous post of Bosun for which the applicant does not have the essential qualification. We do not think such a contention can be sustained. When there is no promotional avenue and the scheme specifically provides a 'safety net' insofar as stagnation for reason of no O.P(CAT) No.130 of 2018 10 adequate avenues for promotion and the clarification also provides for identification of an analogous post, there is no question of looking at the qualification required for in the analogous post. It is only because the applicant does not have a promotional avenue and is unqualified to be posted in any analogous post, the 'safety net' is provided for the purpose of financial upgradation to mitigate the hardship of stagnation. If he had the qualification he necessarily could seek consideration for promotion or financial upgradation sought for if there is dearth of vacancy. The provision to find an analogous post, in the event of no promotion avenues being available, is only for granting the financial upgradation. In such circumstances, we do not find any reason to deny the benefit to the applicant and O.P(CAT) No.130 of 2018 11 we direct the order of the Tribunal to be implemented to grant second financial upgradation under the ACPS. In that event necessarily there should be a revision of MACP. The second financial upgradation under ACP as also the third upgradation under the MACP which was due to the applicant even when the O.A was filed would also be granted on the due dates. We direct that the directions shall be complied with within a period of four months from the date of receipt of a certified copy of this judgment. No order as to costs.
Sd/-
K. VINOD CHANDRAN, JUDGE.
Sd/-
V.G. ARUN, JUDGE.
Jma/ APPENDIX O.P(CAT) No.130 of 2018 12 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE OA NO.1086 OF 2014 DATED 30.11.2014 FILED BY THE APPLICANT. ANNEXURE A9 TRUE COPY OF ORDER F.NO.PF.497/ADM/517 DATED 18.12.2014 OF THE 3RD RESPONDENT ANNEXURE A1 TRUE COPY OF THE OFFICE MEMORANDUM F.2- 2/81 ADMN.DATED 17.06.1982 ANNEXURE A2 TRUE COPY OF THE OFFICE ORDER NO.PO.F.249/ADMN.DATED 23.06.1982 ANNEXURE A3 TRUE COPY OF THE MEMORANDUM NO.F2-5/84- ADMN.DATED 5.6.1984 ANNEXURE A4 TRUE COPY OF THE OFFICE ORDER NO.POF 249/ADMN DATED 15/27.6.1984 ANNEXURE A5 TRUE COPY OF THE OFFICE ORDER NO.GF.70/ADMN DATED 3.6.1986 ANNEXURE A6 TRUE COPY OF THE OFFICE ORDER NO.F.NO.12-1/96 ADMN.DATED 16.10.1996 ANNEXURE A7 TRUE COPY OF THE OFFICE ORDER F.NO.35- 2/2009-ADMN.DATED 30.11.2009 ANNEXURE A8 TRUE COPY OF THE REPRESENTATION DATED 14.08.2014 SUBMITTED BY THE APPLICANT ANNEXURE A10 TRUE COPY OF THE APPLICATION DATED 6.1.2015 O.P(CAT) No.130 of 2018 13 ANNEXURE A11 TRUE COPY OF THE PUBLIC INFORMATION OFFICER, CIFNET, KOCHI BY ORDER BEARING F.NO.1/2014/PIO/VOL.17/248 DATED 3.2.2015 EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT DATED 04.11.2015 FILED BY THE PETITIONERS. EXHIBIT P3 TRUE COPY OF THE REJOINDER DATED 12.02.2016 FILED BY THE APPLICANT.
ANNEXURE A12 TRUE COPY OF ORDER DATED 13.4.2011 IN CIVIL APPEAL NO.3562/2007 OF THE HON'BLE SUPREME COURT ANNEXURE A13 TRUE COPY OF THE ORDER DATED 04.06.15 IN O.A.NO.601/2012 OF THIS HON'BLE TRIBUNAL ANNEXURE A14 TRUE COPY OF THE ORDER DATED 7.10.15 IN O.A.NOO.761/2012 OF THIS HONBLE TRIBUNAL, ERNAKULAM BENCH EXHIBIT P4 TRUE COPY OF THE ORDER IN OA NO.1086 OF 2014 DATED 10.10.2017 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.