Central Administrative Tribunal - Allahabad
Samar Bahadur Singh vs Union Of India Through Secretary ... on 20 May, 2011
Reserved CENTRAL ADMINISTRATIVETRIBUNAL,ALLAHABAD BENCH, ALLAHABAD (THIS THE 20TH DAY OF MAY, 2011) Honble Dr. K. B. S. Rajan, Member (J) Honble Mr. D. C. Lakha, Member (A) Original Application No. 796 of 2007 (U/S 19, Administrative Tribunal Act, 1985) 1. Samar Bahadur Singh, Son of late Ram Dev Singh, Resident of Village-Kondar, Post-Gurbux Singh, District-Rae Bareili, presently posted as Fitter Electronics, Section - E.P.S., T.No. E.P.S. 18, P.No.501004, residing at C-13/4 New Type-III, O.F.D. Estate, Raipur, Dehradun (Uttranchal) Pin 248008. 2. Rajesh Bhandari, son of Sri B.B. Bhandari, posted as Fitter Electronics (HS) OPTO Electronics, Section-E.P.S., T.No. E.P.S. 38, P. No. 500489, Raipur, Dehradun (Uttranchal) Pin 248008. 3. Mahi Pal Aswal, Son of H.S. Aswal, posted as Fitter Electronics (H.S.) OPTO Electronics, Section Q.M.S., T.No.Q.M.S. 08, P.No. 501003, Raipur, Dehradun (Uttranchal) Pin 248008. 4. Dev Raj Singh, Son of Om Prakash Singh, Posted as Fitter Electronics (HS) OPTO Electronics, Section QF. T.No. Q.F.03, P.No. 501005, Raipur, Dehradun (Uttranchal) Pin 248008. . Applicants By Advocate: Shri Kunwar U.B. Singh Versus 1. Union of India through Secretary Defence, Central Government, New Delhi. 2. General Manager, OPTO Electronics Factory, Raipur, Dehradun (Uttranchal). 3. Assistant Works Manager (A), OPTO Electronics Factory, Raipur, Dehradun (Uttranchal). 4. Board of Ordinance Factories, Shaheed Khudi Ram Bose Road, Opposite Eaden Garden, Calcutta (West Bengal) through its Chairman. 5. Shri M.P. Shiman, Fitter Electronics (HS) OPTO Electronics Factory, Section EPS, T.No. EPS-016 P.No. 501019, Raipur, Dehradun (Uttranchal). 6. Shri Karan Singh, Fitter Electronics (HS) OPTO Electronics Factory, Section Assy-II, T.No. A-II, 030, P.No.501023, Raipur, Dehradun (Uttranchal). 7. Shri Jagat Pal, Fitter Electronics (HS), OPTO Electronics Factory, Section Assy-I, T.No.A-1-035, P.No.501020, Raipur, Dehradun (Uttranchal). .. . Respondents By Advocate: Shri R.D. Tiwari O R D E R
(Delivered by Honble Dr.K.B.S.Rajan, Member (J)
1. The contention of the applicant is that Ernakulam Bench judgment in OA No. 741 of 2003 has been wrongly interpreted in fixation of seniority. Again according to the applicant, the decision of the Apex court in Union of India vs. Vir Pal Singh (1998) 6 SCC 684.] and Ajit Singh (1999) 7 SCC 209 supports the case of the applicant that seniority of the general candidates gets restored on their being promoted to the higher grade when their juniors belonging to Reserved Category got accelerated promotion by virtue of quota, in advance of the general candidates.
BRIEF FACTS:
(a) The applicants were initially appointed as semi-skilled workmen in 1990 and became skilled in 1992 and later on highly skilled in 1999. In the seniority list prepared in 2003, their seniority position was 175,173,174 and 176 respectively. In the promotion list 30.09.2003 of highly skilled fitters, the names of the applicants figured at serial no. 3,1,2 and 4 respectively and the names of private respondents at serial no. 5,6 and 7 respectively. The promotion under the above order was retrospective from 1.1.1996. The applicants were all general candidates.
(b) In 2006, respondents published a list of skilled labourers as on 1.1.1996 in which the names of the applicants were respectively reflected at serial no. 408, 406, 407 and 409 and the names of private respondents at serial no. 410, 411 and 412 respectively.
(c) The Ernakulam C.A.T bench of this tribunal decided OA No. 740 of 2003, 741 of 2003 and 882 of 2003 on 17.05.2005 and the point raised there wherein was how to effect the merger of a feeder grade and promotional grade into one unified grade ignoring the promotions already availed under valid recruitment rules by following regular procedure against identified vacancies. The decision in that case is as under :
5. The contentious point is how to effect the merger of a feeder grade and a promotional grade into one unified grade ignoring the promotions already availed under valid recruitment rules by following the regular procedure, against identified vacancies. The learned counsel for the applicant argued that Para 3(d) of the impugned A3 orders permitted retrospective placement by relaxing the requirement of mandatory trade test, which when implemented, would allow those who failed to be promoted to HS-I due to not passing the trade test, to reclaim their lost seniority over those who had been legitimately promoted suspending them, by passing the tests, earlier. This would restore the lost seniority to those who had failed at expense of those who had passed. He further pointed out that those who failed to make the grade, would now rank senior to those who made the grade and eventually become Master Craftsmen not due to any excellence in their trades, but solely due to the arithmetic of numbers. Thus, the learned counsel for the applicant argued, A3 order would result in disrupting the cadre and in giving benefits to the undeserving.
6. The respondents have not advanced any reasonable argument as to why the retrospective placement should not be held as arbitrary. They seem to be thinking that as the A3 order sought to restructure the cadre of Highly Skilled categories trade base, they had no option but to revert to a trade case entailing forfeiture of promotions unrelated to trades but available for promotion for a group of tradesmen placed together in the feeder grade. For instance, under the trade structure circulated on 7.6.1986 (Annexure R1) Borers, Drillers, Millers, Turners, Grinders, Tool makers, etc. are placed together for the next higher grade of Machinist without any trade link. A3 orders, they argue, sought to remove imbalance among trades by resorting promotional opportunities to a trade base, thereby making Annexure R1 clarification inoperable and redundant.
7. The respondents have failed to convince us that A3 orders are reasonable. They seem to be imparting quite a bit of extra sense into the letter to suit their argument. For instance, we do not see any instruction to the effect that the trade base at HS-II level should be restored. As a matter of fact A3 communication makes it absolutely clear that selection to the Master Craftsman would be from the Highly Skilled Grade, and not from the trade. If 25% of the Highly Skilled Grade Posts would be placed in the grade of Master Craftsman outside the hierarchy, then where is the question of trade linked reconstitution of cadre? We are afraid, the respondents have grossly misread A3 letter. It is of course to be admitted that the Mistry of Defence in deciding to restructure the cadre of Artisan staff in defence Establishment in modification of the recommendations of the Vth CPC, five years too late, should have kept in view the implications of retrospective application. It is surprising that the field formations have been allowed their own modalities on such an important matter, without any guidelines from the Ministry. The Ministry (fourth respondent) have not even considered the need to bring the recruitment rules in line with the unified grade structure.
8. In the light of the foregoing discussion, we hold that while the whole of Annexure A3 may not be bad in law, its application by the respondents, particularly para 3(d) in the absence of adequate guidelines from the Ministry could lead to disparate reading producing highly dissimilar and discordant effects. We are also of the view that it would be wrong to deprive an employee of the benefit of seniority enjoyed by virtue of regular promotion, by an act of retrospective revision of cadre structure entailing forefeiture of promotion seniority already availed. Accordingly, we set aside Para 3(d) of MOD letter No.11(1)2002/D(Civil) dated 20.5.2003 extracted in Annexure A3 and direct the respondents to issue necessary procedural guidelines for uniform compliance by Defence Establishments within a period of three months from the date of issue of these orders and consider the applicants representation denovo in that light for appropriate speaking orders to be issued within a month of circulation of the guidelines. No order as to costs.
(d) In the wake of the above decision of the Ernakulam Bench, the Ministry of Defence had issued order dated 27-03-2006, which was reproduced in the letter of respondent No. 3 dated 24-12-2006. The said letter reads as under:-
Honble Central Administrative Tribunal, Ernakulam in its judgment dated 17.05.2005 delivered in O.A.No.882/2003 set aside para (d) of Ministry of Defence letter of even number dated 20.05.2003. In pursuance of Honble Central Administrative Tribunal, Ernakulam directives, Para 3 (d) of MOD letter of even number dated 20.05.2003 may be substituted as under:-
The placement of the individuals in the posts resulting from the restructuring and ratio revision shall be trade w.e..f 01.01.1996, in relaxation of conditions, if any, i.e. trade test etc as one time measure. However, the individuals who got promotions by way of passing trade test etc between 01.01.1996 to 19.05.2003 would be en-bloc senior to those who got promotion as result of restructuring of cadre in relaxation of condition of passing trade test etc. Cases of recovery/re-fixation of pay as a result of restructuring of cadre may be settled in the light of said clarification.
This issue with the approval of DOP&T vide their U.O. No.C-1151/DO(Estt.D)/06, dated 22.3.2006 an concurrence of Ministry (Fin. AG/PB) vide their ID No.77/AG/PB/2006 dated 22.3.2006.
(e) On the basis of the above, the respondents issued annexure A-9 and A-10 letters and invited objections to the seniority fixed on the basis of the decision of the Ernakulam Bench. The applicants whose seniority was affected by the wrong interpretation of the judgment of the Ernakulam Bench filed their objections, vide Annexure A-11.
(f) Thereafter, the respondents published a seniority list on 21.3.2007[Annexure 1-4] whereby the names of the applicants were placed at Serial no. 13,11,12 and 14 respectively and the names of respondents 5 to 7, at serial no 15,16 and 17. Annexure A-12 refers.
(g) So far, so good. However another seniority list was issued consequent to which letter dated 16.6.2007 calling for objections, if any to the amended seniority list. In the set amended seniority list the names of the applicants were reflected respectively at serial no. 30,28,29,31 while the respondents, 5 to 7, at 23,24 and 25.
(h) The applicants represented. However, there was no response.
(i) Hence this OA has been filed for quashing of the order dated 21.3.2007 and for restoration of the seniority of the applicants at the proper place.
2. The respondents have contested OA. According to them, respondents 5-7 belong to Reserved Category and were junior to the applicants in the skilled grade[Annexure-CA-1]. They were promoted to the highly skilled grade against the vacancies earmarked for reserved category on 25.1.1996, 25.1.1996 and 12.2.1996 respectively. On the other hand, the applicants could be promoted under the general category to the highly skilled grade only w.e.f 29.1.1999 after qualifying the requisite trade test.
3. Cadre restructuring was introduced vide letter dated 20.5.2003. The salient features of the said restructuring are as under:-
(a) The post of Highly Skilled-II and Highly Skilled-I have been declared merged w.e.f. 01.01.1996.
(b) The ratio of Skilled and Highly Skilled was stipulated as 65:35 for the period 01.01.1996 to 19.05.2003. Earlier, it used to be 65:20:15 for Skilled: Highly Skilled-II Highly Skilled-I.
(c) 10% of Highly Skilled were to be given placement to the post of Master Craftsman during the period from 01.01.1996 to 19.05.2003.
(d) From 20.05.2003, the ratio for Skilled and Highly Skilled was provided as 45:55 respectively.
(e) 25% of Highly Skilled to be given placement to the post of MCM from 20.05.2003 onwards.
(f) Above said Intergrated ratio was required to be worked out on Authorized/Sanctioned strength.
(g) One time relaxation in Trade Test, DPC etc., was granted.
4. According to the above restructuring, eight vacancies occurred w.e.f from 1.1.1996 in the cadre of Fitter [Electrical] to which the applicants and private respondents belong as per the 40 point roster, 4 vacancies were to go for general category, 3 to S.C and 1 to S.T. As the applicants and the private respondents were falling within the zone of consideration, they were all considered for promotion w.e.f. the said date and were granted notional promotion accordingly, irrespective of the passing in the trade test, by relaxing the rule in this regard. During 2006, the Ministry of Defence, vide their letter dated 27-03-2006 (referred to earlier vide (d) above), referred to the judgment dated 17-05-2005 of the Ernakulam Bench (referred to above) and incorporated the paragraph as contained therein. The said letter provided for fixation of seniority of those who had qualified in the trade test between 01-01-1996 to 19-05-2003 as en mass senior to those who were promoted under the restructuring, by relaxation of the Rules. The contention of the respondents is that prior to restructuring, the applicants stood promoted to highly Skilled on 29-01-1996 and respondents No. 5 to 7 stood promoted to Highly Skilled grade on 25-011996/12-02-1996 and for this purpose, they had qualified in the trade test prior promotion. On 01-01-1996 the applicants had not qualified the trade test but were notionally promoted by relaxng the conditions of trade test as prescribed under para 3(d) of Ministry of Defence letter dated 20-05-2003. They could qualify in the trade test only in 1999.
5. In their rejoinder, the applicants had contended as under:-
That the contents of Para 19 of the second part of counter affidavit are not admitted as stated. In so far as the contents relates to the matter of record, they do not call for any reply.
As regards reply of sub para starting from page 32, it is submitted that although the petitioners qualified their Trade Test in the year 1999 and respondents No.5 to 7 qualified their test in the year 1996, yet the criteria of promotion or the fix date which was proposed was 01.01.1996 and that too after restructuring of cadre. It was as a result that notional promotion to the petitioner as well as to the respondents no.5 to 7 was given w.e.f. 01.01.96 after restructuring of cadre and at that time the petitioners were found senior to the respondents No.5 to 7. It is wrong to say that as per the judgment of the CAT, Ernakulam, the proposition of law laid down that the petitioners should become junior to the respondents No.5 to 7. The reason is that the promotion of the petitioners in the highly skilled grade was after passing of the Trade Test and not after relaxation of any condition.
6. The applicants had filed a written submission also, resting their claim upon the decision of Veer Pal Chauhan and Ajit Singh (supra). They had also relied upon the following decisions:
(a) State of Haryana and others v. Rameshwar Dass (2009)7 Supreme Court Cases 400
(b) R.K. Mobisana Singh v. Kh. Temba Singh and others (2008) 1 Supreme Court Cases 747.
(c) Mansoor Ahmad and others v. State ofJammu and Kashmir and others (2009) 4 Supreme Court Cases 544.
(d) State of Bihar and Others v. Kameshwar Prasad Singh and another (2009) 9 Supreme Court Cases 94.
7. Arguments advanced, written submission as well as documents were all taken into account.
8. The restructuring got the benefit of preponing the promotion to the post of Highly Skilled Grade from 01-01-1996. At that time, as a n one time measure, relaxation with regard to passing of trade test was granted. The said promotion was to be necessarily based on seniority. Admittedly, in the skilled grade, the applicants are senior to the private respondents. As such, when there has been relaxation with regard to trade test, the same is available to the applicants. Thus, notwithstanding the fact that the private respondents had qualified in the trade test prior to the applicants, the restructuring having provided for relaxation, and the promotion being based on seniority in the skilled grade, in the seniority list of Highly skilled Grade, in the wake of the promotion of the applicants and that of respondents w.e.f. 01-01-1996 the seniority position should be so construed as to retain their seniority in the grade of skilled grade. In so far as the subsequent clarification, i.e. those who had qualified in the trade test between 01-01-1996 to 19-05-2003, it should apply to those who did not qualify in the trade test at all but were, under relaxation, .promoted to the higher Grade i.e. Highly skilled under the restructuring scheme. Perhaps, the applicants would have been placed so, had they not qualified in the trade test in 1999.
9. The applicants have, therefore, made out a case in their favour. Their seniority shall, in the grade of highly skilled, be corresponding to their seniority in the grade of skilled grade. Their placement in the next higher grade i.e. MCM shall be based on such seniority. If there had been any placement in the grade of MCM had been made on the basis of the earlier seniority in which the applicants were shown junior to the private respondents, the same shall be reviewed and the recommendations of the review DPC shall hold good. In that process, if the private respondents were to be downgraded to the post of Highly skilled, respondents may consider, if their service in the grade of MCM is for a substantial period, for creation of supernumerary post so that reversion could be avoided. Driven to the wall, if reversion is inevitable, the same shall be in accordance with law, by following the principles of natural justice.
10. The OA is allowed accordingly. Respondents are directed to restore the seniority of the applicant in the grade of Highly skilled corresponding to their position as skilled category and conduct review DPC for placement of MCM (if the same is warranted) and afford necessary consequent benefit of pay and allowances to the applicants notionally from the date they were due to be placed in that position and actually from the date they actually shouldered the responsibilities as of MCM.
11. This order shall be complied with, within a period of four months from the date of communication of this order. No cost.
Member A Member J
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