Central Administrative Tribunal - Jabalpur
Dr Narmada Prasad Dwivedi vs M/O Defence on 17 December, 2021
1
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.200/00680/2019
Jabalpur, this Friday, the 17th day of December,2021
HON'BLE SHRI RAMESH SINGH THAKUR, JUDICIAL MEMBER
HON'BLE MS. NAINI JAYASEELAN, ADMINISTRATIVE MEMBER
Dr. Narmada Prasad Dwivedi
(Ex.JWM/OKF/Per No.846897
Now Section Officer/CAT Jabalpur
Resident of 107/A Jahangir Apartment
Near Leonard School South Civil Lines
Jabalpur (MP) 482001 -Applicant
(By Advocate -Shri Vijay Tripathi)
Versus
1. The Union of India, Through its Secretary Defence
(Production), South Block New Delhi 110011
2. The Chairman & Director General
Ordnance Factory Board
10-A Shaheed Khudiram Bose Marg
Kolkata (W.B.) 700001 - Respondents
(By Advocate -Shri S.P. Singh)
(Date of reserving the order: 17.03.2021)
ORDER
By Ramesh Singh Thakur, JM:-
Through this Original Application the applicant is challenging the action of the respondents in not granting proforma promotion in the post of Junior Works Manager (Selection Grade) to him w.e.f.01.01.2016.Page 1 of 12 2
2. The applicant has sought for the following reliefs:-
"8.1 Summon the entire relevant record from the possession of respondents for its kind perusal.
8.2 Upon holding that the decision of the Respondent No.2 is not inconsonance with the Statutory orders and also is violative of Article 14 and 16 of the constitution of India, direct the respondents to convene a review DPC for grant of pro forma promotion to the applicant to the post of JWM(SG) from the date when the post in higher grade of Rs.4800/- created i.e. w.e.f.01/01-2016 with all consequential benefit including seniority and other service benefits.
8.3 Any other writ/writs, order/orders, direction/direction which this Hon'ble Tribunal deems fit and proper.
8.4 Direct the respondents to pay cost of the litigation to the applicant."
3. The facts of the case are that the applicant was initially appointed as "Messenger Boy" w.e.f.27.01.1987 in Ordnance Factory Jabalpur on compassionate ground. The applicant was promoted to LDC on 12.8.1997 after qualifying LDCE exam. Later he was promoted to Chargeman through LDCE w.e.f.06.06.2001.
Then he was promoted to Foreman/JWM (NT/OTS) w.e.f.30.06.2009 till 10.09.2017. Thereafter the applicant was appointed as Section Officer on deputation w.e.f.24.10.2011 and got absorbed in Central Administrative Tribunal w.e.f.11.09.2017. In the seniority list of Junior Works Manager (NT/OTS) as on 01.01.2016, published by the Ordnance Factory Board, Kolkata vide letter dated 19.06.2019 (Annexure A/2) the name of the Page 2 of 12 3 applicant has been shown at serial No.156. As per recommendation under Para 11.12.105 of the report of the 7th Central Pay Commission and upon approval of the Government of India the post of JWM (SG) has been created w.e.f.01.01.2016 as notified in GSR 592 (E) dated 15.06.2017 (Annexure A/4). In pursuance to the provisions contained in GSR 592 (E), the Ordnance Factory Board Kolkata, vide order dated 13.09.2018 (Annexure A/1) has promoted 191 individuals from Junior Works Manager (Non Technical/Other than Store) (Group 'B' Gazetted] in level-7 of the Pay Matrix to the post of Junior Works manager (Selection Grade)/Tech/Non Tech) (Group 'B' Gazetted) in Level 8 of the pay Matrix w.e.f.13.09.2018. The applicant's name has not been included in the promotion order for the post of JWM (SG) where as his juniors (shown upto S.No.263 in seniority list have been promoted. Being aggrieved the applicant submitted a representation dated 10.10.2018 (Annexure A/3) to convene the review DPC for grant of pro forma promotion to the post of JWM (SG) from the date when the vacancies actually occurred in 2016. But the same was not answered by the respondents. The applicant filed O.A. No.363/2019 before this Tribunal which was disposed of vide order dated 26.04.2019 (Annexure A/6) to decide the applicant's representation as per rules and provisions contained in Page 3 of 12 4 Annexure A/5 and A/7 with a reasoned and speaking order. On compliance of the said order, the respondent department has rejected his representation vide order dated 02.07.2019 (Annexure A/7) without taking into consideration the provision contained in GSR 721 (E) dated 25.07.2016 and 592 (E) dated 15.06.2017. Hence this Original Application.
4. The respondents have submitted their reply to the Original Application wherein it has been submitted that the method outline in the GSR is promotion and this can be ordered only after DPC assesses the suitability of candidates. Hence although GSR 592(E) dated 15.06.2017 is deemed to have come into effect w.e.f. 01.01.2016 promotions can be ordered only DPC recommendations are received and competent authority approves the promotion. Hence these orders cannot be back dated. DPC has been conducted on 7/10.09.2018 for filling up of 70% posts of newly created posts JWM (SG) through promotion for the vacancy year 2018. The recommendation of DPC for promotion to JWM (SG) was accepted by DGOF & Chairman OFB on 13.09.2018 and promotion orders were issued on the same day. The applicant was not in the strength of O.F. Organization at the time of DPC for promotion to the post of JWM (SG). Hence granting proforma promotion to the applicant in the post of JWM (SG) does not arise.
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5. Heard the learned counsel for the parties and having gone through the pleadings and the documents annexed therewith.
6. The question for consideration before us in this case is that where promotion is to be granted in same post from JWM with Grade Pay 4600/- to JWM Grade Pay 4800/-, without involving advancement to a higher post, without involving any process of selection for conferment of the benefit of higher pay-scale. Whether it is treated as Promotion or Upgradation?.
7. Learned Counsel for the applicant has relied on the judgment of Hon'ble Supreme Court in the matters of BSNL Vs. R. S. Velusamy and Ors., (2011) 9 SCC 510, which reads as under:
"29. On a careful analysis of the principles relating to promotion and up-gradation in the light of the aforesaid decisions, the following principles emerge:
(i) Promotion is an advancement in rank or grade or both and is a step towards advancement to a higher position, grade or honour and dignity. Though in the traditional sense promotion refers to advancement to a higher post, in its wider sense, promotion may include an advancement to a higher pay scale without moving to a different post. But the mere fact that both--that is, advancement to a higher position and advancement to a higher pay scale--are described by the common term "promotion", does not mean that they are the same. The two types of promotion are distinct and have different connotations and consequences.
(ii) Upgradation merely confers a financial benefit by raising the scale of pay of the post without there being movement from a lower position to a higher position. In an upgradation, the candidate continues to hold the same post without any change in the duties and responsibilities but merely gets a higher pay scale.
(iii) Therefore, when there is an advancement to a higher pay scale without change of post, it may be referred to as upgradation Page 5 of 12 6 or promotion to a higher pay scale. But there is still difference between the two. Where the advancement to a higher pay scale without change of post is available to everyone who satisfies the eligibility conditions, without undergoing any process of selection, it will be upgradation. But if the advancement to a higher pay scale without change of post is as a result of some process which has elements of selection, then it will be a promotion to a higher pay scale. In other words, upgradation by application of a process of selection, as contrasted from an upgradation simpliciter can be said to be a promotion in its wider sense, that is, advancement to a higher pay scale.
(iv) Generally, upgradation relates to and applies to all positions in a category, who have completed a minimum period of service.
Upgradation can also be restricted to a percentage of posts in a cadre with reference to seniority (instead of being made available to all employees in the category) and it will still be an upgradation simpliciter. But if there is a process of selection or consideration of comparative merit or suitability for granting the upgradation or benefit of advancement to a higher pay scale, it will be a promotion. A mere screening to eliminate such employees whose service records may contain adverse entries or who might have suffered punishment, may not amount to a process of selection leading to promotion and the elimination may still be a part of the process of upgradation simpliciter. Where the upgradation involves a process of selection criteria similar to those applicable to promotion, then it will, in effect, be a promotion, though termed as upgradation.
(v) Where the process is an upgradation simpliciter, there is no need to apply the rules of reservation. But where the upgradation involves a selection process and is therefore a promotion, the rules of reservation will apply.
(vi) Where there is a restructuring of some cadres resulting in creation of additional posts and filling of those vacancies by those who satisfy the conditions of eligibility which includes a minimum period of service, will attract the rules of reservation. On the other hand, where the restructuring of posts does not involve creation of additional posts but merely results in some of the existing posts being placed in a higher grade to provide relief against stagnation, the said process does not invite reservation.
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30. In this case, the BCR scheme did not involve creation of additional posts but merely restructured the existing posts as a result of which 10% of the posts in Grade III were placed in a higher grade (Grade IV) to give relief against stagnation. This is evident from the terms of the BCR scheme and the clarification contained in the letter dated 7.5.1993 that no posts were sanctioned, as far as 10% BCR was concerned.
31. In this case, the BCR scheme dated 16.10.1990 provided that the persons who had completed 26 years of service would be screened by a duly constituted Review Committee to assess the performance and suitability for advancement. The screening was for the limited purpose of finding out whether the service record of the employee contained any adverse entries or whether the employee had suffered punishment. The screening process did not involve consideration of comparative merit nor involve any selection. The 10% posts were upgraded strictly by seniority subject to screening. This is evident from the terms of BCR scheme and the Circular dated 13.12.1995 which provided that the promotions to Grade IV were to be based on seniority in the basic grade from among the officers in Grade III, subject to fitness determined as per OTBP manner, that is screening to ascertain whether there are any adverse comments or punishment against the employee concerned.
32. To sum up, the BCR scheme was an upgradation scheme to give relief against stagnation. It did not involve creation of any new posts. It did not involve advancement to a higher post. It did not involve any process of selection for conferment of the benefit of higher pay-scale. The upgradation was given to the senior most 10% of BCR scale employees in Grade III strictly as per seniority. BCR scheme as per circular dated 16.10.1990 was thus a scheme for upgradation simplicitor without involving any creation of additional posts or any process of selection for extending the benefit. Such a scheme of upgradation did not invite the rules of reservation.
32. We accordingly allow these appeals, set aside the orders of the High Court and the Tribunal and dismiss the Original Applications challenging the order of the telecom department dated 8.9.1999." Page 7 of 12 8
8. In a similar case of Ashok Kumar Shrivastava and Ors. v. UOI and Ors. (T.A. No. 139/86), passed by this Tribunal on 24.03.1987, taking into consideration facts and circumstances of the case the Hon'ble CAT Jabalpur was held that the upgradation to DMOs did not involve either a selection or a promotion, that it is simply nomination or placing of some senior to the upgraded posts with better pay scale on the basis of seniority subject to suitability. In para 18 the Tribunal has stated as hereunder:
"18. Consequently we are of the view that in the present case the upgradation of ADMOs to DMOs involves neither a selection nor a promotion. It is simply nomination or placing of some seniors to the upgraded posts with better pay scale, on the basis of seniority subject to suitability. In the circumstances of this case placing of these few seniors to their upgraded posts with better pay scale does not amount to any fresh appointment by promotion and, moreover, these persons, so nominated to the higher grade, do not leave behind vacant their earlier posts."
9. On perusal of the above, we find that in the instant case as per GSR-592, dated 15/06/2017 (Annexure-A/3) 70% of posts, earmarked to be placed in higher grade of Rs.4800/-, are to be filled up by promotions of existing JWMs holding the grade pay of Rs.4600/-. As per GSR, the promotion is to be effected in the same post i.e. from JWM (Grade pay of Rs. 4600/-) to JWM (Grade pay 4800/-). Obviously, the candidate continues to hold the same post without any change in the duties and responsibilities but merely gets a higher pay scale. It did not involve creation of any new Page 8 of 12 9 post. It did not involve advancement to a higher post. It did not involve any process of selection for conferment of the benefit of higher pay-scale. Thus, up-gradation in higher grade pay of Rs.4800/- by way of promotion against these 70% upgraded posts is to be given strictly as per order of seniority. Despite that as per GSR-592(E) "Method outlined in the GSR is promotion" this scheme is thus a scheme for up-gradation as per recommendations of 7th CPC, without involving any creation of additional posts or any process of selection for extending the benefit of higher grade pay.
10. Further, the Learned counsel for applicant emphasised to Para 2 of DoPT O.M. dated 04.02.1992 which stipulates that:
"2. The following criteria may be adopted in assessing the suitability of the incumbents of the post/deciding the date of appointment to upgrade post:
1. "Where the up-gradation involves only a higher replacement scale without any additional responsibility/ higher qualification/higher eligibility service, the suitability of the incumbents need not be assessed and they may be appointed to the post with the higher replacement scale with effect from the date notified by the Government, giving effect to the recommendations of the Pay Commission or similar bodies etc.
11. We find that specific plea, regarding applicability of provisions of DoPT OM dated 04.02.1992, raised repeatedly by the Page 9 of 12 10 applicant on that behalf in the body of the OA which has never refuted in the reply filed on behalf of the respondents. However, on perusal of GSR-592(E) it is very clear that no additional responsibility/ higher qualification/ higher eligibility service is laid down in the GSR-592(E) for effecting promotions against 70% of upgraded post and therefore in this case the above guidelines ought to have been adhered to by the respondents.
12. Further, on perusal of records we find that respondents considered the vacancy year as "2018", whereas they considered APAR Grading for the period from 2010-11 to 2014-15 which is required to be considered for promotions in case of vacancy for year 2016. This contradiction shows inconsistency in their action.
13. It is an admitted fact that the applicant was holding the post of JWM(NT/OTS) in O.F. Organization i.e. OFK w.e.f. 30.06.2009 to 10.09.2017 till permanent absorption in the post of Section Officer/Court Officer in CAT Jabalpur.
14. Further, the Learned counsel on behalf of respondents never disputed on specific plea raised on behalf of applicant that his name has been shown at S.No.156 in the seniority list as on 01.01.2016 and as on 01.01.2016 total 177 vacancies for JWM (SG) were assessed for un-reserved category. Accordingly, he is Page 10 of 12 11 well within the normal zone of consideration for getting benefit of higher pay if it is granted on or before his absorption i.e. 10/09/2017.
15. Consequently, we are of the view that in the present case as per GSR-592(E), the promotion against 70% posts upgraded in higher grade, is to be effected in the same post i.e from JWM (Grade pay of Rs. 4600/-) to JWM (Higher Grade pay of Rs. 4800/-) strictly on the basis of seniority as the candidate continues to hold the same post without any change in the duties and responsibilities but merely gets higher pay scale. It did not involve creation of any new post. It did not involve advancement to a higher post. It did not involve any process of selection for conferment of the benefit of higher pay-scale. Despite Method outlined in the GSR is promotion; this scheme is thus a scheme for upgradation simplicitor, without involving any creation of additional posts or any process of selection for extending the benefit. Thus, we find that decision of the Respondent No.2, by rejecting the claim of applicant is inconsonance with the statutory orders and also is violative of Article 14 and 16 of the constitution of India.
16. We also find that in terms of Para 2(1) of DoPT OM 04.02.1992, in the instant case, the suitability of the Applicant need Page 11 of 12 12 not be assessed and appointment through promotion be made to the applicant in higher replacement scale of Rs.4800/- (Level-8) with effect from the date notified by the Government, giving effect to the recommendations of the 7th CPC i.e. 01.01.2016.
17. Since entire exercise undertaken by the respondents is contrary to the GSR-592(E), dated 15/06/2017 and GSR-721, dated 25.07.2016 as well as DoPT OM dated 04.02.1992; it cannot be sustained in law.
18. Accordingly, the present Original Application is allowed. The impugned letter dated 02/07/2019 (Annexure-A/7) is quashed and set aside.
19. Consequently, the respondents are directed to grant the proforma promotion to the applicant to the post of JWM (SG)from the date when the post in higher grade of Rs. 4800/- created i.e. w.e.f. 01.01.2016 to 11.09.2017 ( the date on which the applicant absorbed in CAT, Jabalpur Bench) with all consequential benefits including seniority and other service benefits.
20. This exercise should be completed within a period of 60 days from the date of receipt of a certified copy of this order. However, the applicant shall not be entitled for any interest on payment of arrears. No costs.
(Naini Jayaseelan) (Ramesh Singh Thakur)
Administrative Member Judicial Member
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