Central Administrative Tribunal - Bangalore
P Chander vs M/O Defence on 6 November, 2023
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OA.No.170/00540/2020/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00540/2020
DATED THIS THE 06th DAY OF NOVEMBER, 2023
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE MR. RAKESH KUMAR GUPTA, MEMBER (A)
1) P Chander,
S/o. M. Papaiah,
Aged about 53 years,
working as Mate (SSK),
O/o Garrison Engineer (Maintenance)
Air Force, Jalahalli,
Bangalore-13.
2) S Mahesh,
S/o. Shankarappa,
Aged about 48 years,
working as Mate (SSK),
O/o Garrison Engineer (Maintenance)
Air Force, Jalahalli,
Bangalore-13.
3) N Bayalappa,
S/o Narayanappa,
Aged about 53 years,
working as Mate (SSK),
O/o Garrison Engineer (Maintenance)
Air Force, Jalahalli,
Bangalore-13.
4) G. Krishnaswamy,
S/o. V. Gopal,
Aged about 49 years,
working as Mate (SSK),
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OA.No.170/00540/2020/CAT/BANGALORE
O/o Garrison Engineer (Maintenance)
Air Force, Jalahalli,
Bangalore-13.
5) T S Mukesh,
S/o. Thagaraj,
Aged about 49 years,
working as Mate (SSK),
O/o Garrison Engineer (Maintenance)
Air Force, Jalahalli,
Bangalore-13.
6) H S Srinivas,
S/o. late Siddappa,
Aged about 49 years,
working as Mate (SSK),
O/o Garrison Engineer (Maintenance)
Air Force, Jalahalli,
Bangalore-13.
7) T Basavaraju
S/o. late G Thannaiah,
Aged about 49 years,
working as Mate (SSK).
O/o Garrison Engineer (Maintenance)
Air Force, Jalahalli,
Bangalore-13.
8) J Nagesh,
S/o. late Javaraiah,
Aged about 50 years,
Working as Mate (SSK),
O/o Garrison Engineer (Maintenance)
Air Force, Jalahalli,
Bangalore-13.
9) Lokesh,
S/o. Poojari,
Aged about 43 years,
working as Mate (SSK),
O/o Garrison Engineer (Maintenance)
Air Force, Jalahalli,
Bangalore-13.
10) M Srinivas,
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OA.No.170/00540/2020/CAT/BANGALORE
S/o. Mallaiah,
Aged about 44 years,
working as Mate (SSK),
O/o Garrison Engineer (Maintenance)
Air Force, Jalahalli,
Bangalore-13.
11) M Mahesh,
S/o. Mahadevappa,
Aged about 39 years,
working as Mate (SSK),
O/o Garrison Engineer (Maintenance)
Air Force, Jalahalli,
Bangalore-13.
12) M Hari Kumar
S/o. late P Muniswamy,
Aged about 47 years,
working as Mate (SSK),
O/o Garrison Engineer (Maintenance)
Air Force, Jalahalli,
Bangalore-13.
13). N Manjunath,
S/o. late V Nanjundappa,
Aged about 45 years,
working as Mate (SSK),
O/o Garrison Engineer (Maintenance)
Air Force, Jalahalli, Bangalore-13.
14) Arun Pitagi,
S/o. late Nemanna
Aged about 34 years,
working as Mate (SSK),
O/o Garrison Engineer (Maintenance) Air Force,
Jalahalli, Bangalore-13.
15) M. Chandrashekhar,
S/o. late Mayanna,
Aged about 48 years,
working as Mate (SSK),
O/o Garrison Engineer (Maintenance)
Air Force, Jalahalli, Bangalore-13.
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OA.No.170/00540/2020/CAT/BANGALORE
16) Smt. Shanthamma,
w/o. Raju,
Aged about 43 years,
working as Mate (SSK),
O/o Garrison Engineer (Maintenance)
Air Force, Jalahalli, Bangalore-13.
17) Smt. Venkatachalamma,
w/o. late Dhanapal,
Aged about 49 years,
working as Mate (SSK),
O/o Garrison Engineer (Maintenance)
Air Force, Jalahalli, Bangalore-13.
18) Smt. Thangamani
w/o M Anbu,
Aged about 50 years,
working as Mate (SSK),
O/o Garrison Engineer (Maintenance)
Air Force, Jalahalli, Bangalore-13. .... Applicants
(By Shri. M Subramanya Bhat, Advocate)
Vs.
1. Union of India
Through its Secretary
Ministry of Defence
Central Secretariat, New Delhi 110 001.
2. Engineer in Chief,
Engineer in Chief's Branch,
Army Head Quarters, DHQ (PO),
New Delhi-01.
3. The Chief Engineer,
Headquarters,
Southern Command,
Engineer's Branch, Pune-01.
4. The Chief Engineer,
Headquarters,
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OA.No.170/00540/2020/CAT/BANGALORE
Yashwanthpur Post, Bangalore-22.
5. Commander Works Engineer (AF-North),
Bellary Road, Bangalore-06.
6. Garrison Engineer (Air Force),
Jalahalli, Bangalore-63.
7. Sri R Ravi Kumar
Father Name not known
Aged about 36 years
Working as HS II FGM
Garrison Engineer (M), Air Force,
Jalahalli Unit, Bangalore-13
8. K Manikhanthan
Father's Name not known
Aged about 42 years
Working as REF M
Garrison Engineer (M), Air Force,
Jalahalli Unit, Bangalore-13
9. S Devdas
Father's name not known,
aged about 56 years,
Working as HS II FGM
Garrison Engineer (M), Air Force,
Jalahalli Unit, Bangalore-13
10. Chidanand,
Father's name not known
aged about 32 years,
Working as Electrician SK
Garrison Engineer (M), Air Force,
Jalahalli Unit, Bangalore-13
11. Rajesh SR
Father's name not known
Aged about 41 years,
Working as Electrician SK
Garrison Engineer (M), Air Force,
Jalahalli Unit, Bangalore-13 ....Respondents
(By Shri. S Sugumaran, Senior Panel Counsel for Respondents
No.1 to 6, None for Respondents No.7 to 11)
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OA.No.170/00540/2020/CAT/BANGALORE
O R D E R (ORAL)
PER: JUSTICE S. SUJATHA, MEMBER (J)
This application is filed by the applicants under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"i) ISSUE A WRIT OF MANDAMUS or any other appropriate order or direction, directing the respondents 2 to 6 to consider the claim of the applicants for promotion to the posts of Skilled, Highly Skilled-II and Highly Skilled-I, as and an when they become eligible for the same or from the date on which their immediate juniors in the cadre of Mates are promoted to the Skilled, Highly Skilled-II and Highly Skilled-
I cadres and further grant them the consequential benefit of arrears pay, fitment and seniority in the aforesaid posts, in the interest of justice;
ii) Issue any other incidental or consequential relief/s as deemed fit in the facts and circumstances of the case and in aid of the main relief sought for, in the interest of justice and equity."
2. Briefly stated the facts as narrated by the applicants are that the applicants were initially appointed in Group - D ministerial posts as Chowkidars/Safaiwalas in the Military Engineering Services during the years 1996, 1997, 1998, 2001 and 2008. As per the Military Engineering Services Recruitment Rules which were in vogue till 08.07.2013, these posts of Mates are required to be filled up from among 7 OA.No.170/00540/2020/CAT/BANGALORE Mazdoors/Chowkidars/Safaiwalas based on seniority and subject to passing of trade test prescribed for the posts of Mates. As per these rules, Mazdoors/Chowkidars/Safaiwalas were required to pass trade test prescribed for being qualified for promotion as Mates (semi- skilled). It is stated by the applicants that though the applicants were eligible and qualified to appear for the trade test, Respondent No.4 never conducted the trade test despite the Respondent No.6 notifying the names of the applicants, (except the 14th applicant) on 02.09.2006 for conducting trade test as a part of promotion process to the posts of Mates.
3. Meanwhile, in the year 2006, 6th Central Pay Commission noticed the injustice caused to these workmen and recommended for merger of Group - D posts into Group - C posts. Based on which, the 1st Respondent issued a circular dated 08.02.2011, classified and re-designated the Mazdoors working in Industrial establishment as Mates w.e.f 01.01.2006.The Circular further stated that all unskilled trades may be merged with the corresponding semiskilled trades w.e.f 09.09.2008. Some of the Chowkidars/Safaiwalas approached the Ernakulam Bench of this Tribunal in OA No.109/2012, seeking for an appropriate direction to extend the benefit of the order dated 08.02.2011 to them. The Ernakulam Bench as per the order dated 12.12.2012 allowed the OA and quashed the impugned endorsements therein directing the 8 OA.No.170/00540/2020/CAT/BANGALORE respondents therein to grant all the benefits flowing from the order dated 08.02.2011 and to consider them for promotion to the skilled posts keeping in mind their seniority.
4. Some of the applicants herein who were working as Chowkidars/Safaiwalas in the Office of Garrison Engineer (Maintenance), Air Force, Jalahalli filed OAs No.1019-1030/2012 on the file of this Tribunal claiming similar benefits granted by the Ernakulam Bench. This Tribunal allowed said OA as per the order dated 12.07.2013 holding that the applicants herein are also entitled to the similar benefit to the same extent as has been granted by the Ernakulam Bench in OA No.109/2012. Since the said order was not acted upon, some of the applicants herein again filed OAs No.1460-1484/2015 on the file of this Tribunal inter alia seeking a direction to the respondents to conduct trade test for the post of Mates in terms of Recruitment Rules dated 09.11.2004 and promote them as Mates with all benefits. When the said OA was listed for hearing, the respondents filed a memo dated 02.06.2016 agreeing to conduct the trade test. In view of the said memo, OAs No.1460-1484/2015 came to be disposed of, vide order dated 09.06.2016. Thereafter, the respondents conducted the trade test on 15.06.2016 on the applicants. They were declared as passed in the trade test. Subsequently, they were promoted as Mates (semi-skilled) on 12.09.2016. Being aggrieved by the denial 9 OA.No.170/00540/2020/CAT/BANGALORE of re-designation as Mates w.e.f 09.09.2008 and also denial of further promotion to the Skilled and Highly Skilled posts in their respective trades on par with their juniors, the applicants filed Original Applications No.181-198/2018 before this Tribunal which came to be disposed of, remitting the matter back to the respondents to find out when each Mate person has become eligible for the enhancement and after passing of the trade test become eligible as having crossed the suitability barrier. There upon, it was directed that the respondents will grant notional benefits to the applicants from that earliest point of time. They need not give any consequences of this benefit to them since they have not worked in the said posts.
5. Pursuant to which the review DPC was held to consider the case of the applicants for grant of promotion from the post of Mates to the higher posts. Waiver of passing the trade test for retrospective promotion to the post of Mates was also recommended and sanction of additional vacancies was also solicited. However, the respondents did not proceed further to implement the directions issued by this Tribunal.
6. Being aggrieved, the applicants preferred CP No.170/05/2020 before this Tribunal. During the pendency of the contempt proceedings, Respondent No.5 issued a special part-II 10 OA.No.170/00540/2020/CAT/BANGALORE order dated 10.08.2020, notionally promoting the applicants to the post of Mate w.e.f 09.09.2008. As such, contempt proceedings were dropped, reserving liberty to the applicants to avail the remedy available in law. A comprehensive legal notice issued by the applicants to the respondents demanding further promotion to be granted to them consequent upon notional promotion granted to them as Mates w.e.f 09.09.2008 has not fetched any positive result, hence this OA.
7. Learned counsel Shri. M Subramanya Bhat representing the applicants submitted that the denial of promotional benefits to the applicants has resulted in negation of Fundament Rights guaranteed to them under Articles 14 and 16 of the Constitution. The Office Order dated 08.06.2020 makes it clear that the Hon'ble President of India has accorded sanction to implement the order passed in OAs No.181-198/2018 and review DPC was also formed and additional vacancies are also sought to be sanctioned. However, ultimately, the 6th Respondent has washed off his hands by promoting the applicants to the posts of Mates w.e.f 09.09.2008 denying the promotion to the applicants for the post of Skilled, Highly Skilled Grade - II and Highly Skilled Grade - I on par with the private respondents who were all juniors to the applicants. Accordingly, seeks for interference of this Tribunal. 11
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8. Learned counsel Shri. S Sugumaran representing the Respondents 1 to 6 submitted that the applicants No.1 to 8, 12 to 15, 17 and 18 are now promoted from the post of Semi-Skilled (SSK) to Skilled (SK) vide orders dated 18.09.2021 and 20.09.2021 in the vacancy available as per Estt Sanction from 01.04.2018 to 31.12.2020. Applicants No.9 to 11 and 16 could not be promoted for want of vacancy. Further promotion from the post of Mates to the post of Skilled, Highly Skilled Grade - II and Grade - I are subject to availability of vacancies as per year wise sanction issued. Now the promoted applicants were already drawing the benefit of promoted scale by virtue of I MACP granted w.e.f 01.09.2008 in GP Rs.1900/- and II MACP w.e.f 26.09.2017 in GP Rs.2000. Hence, this application deserves to be dismissed as having rendered infructuous.
9. Learned counsel has filed a memo dated 14.08.2023 along with copy of the Convening Order dated 08.06.2020 and the cancellation of Convening Order dated 17.07.2020, promotion order dated 18.09.2021 and the Recruitment Rules to contend that three years regular service in the Grade and passing the trade test for the promotional posts is necessary.
10. We have heard the learned counsel for the parties and perused the material on record.
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11. This Tribunal vide order dated 22.01.2019 in OAs No.181-198/2018 remitted the matter back to the respondents to find out when each Mate person has become eligible for the enhancement and after passing of the trade test become eligible as having crossed the suitability barrier. A direction was issued that the respondents will grant notional benefits to the applicants from that earliest point of time. They need not give any consequences of this benefit to the applicants since they have not worked in the said posts. Pursuant to the said order, the applicants were declared successful in the trade test as per the trade test result from Chowkidars/Safaiwalas to Mates (SSK) received from GE (M)(AF) Jalahalli vide letter dated 13.07.2016, notional promotion was granted to the applicants herein from Chowkidars to Mates(SSK) w.e.f 09.09.2008. Now the controversy relates to the consequential promotion to Skilled post/ Highly Skilled Grade - II/Highly Skilled Grade - I.
12. In view of the notional promotion granted to the applicants from Chowkidars to Mates (SSK) w.e.f 09.09.2008 vide order dated 10.08.2020 issued by the respondents during the pendency of the contempt proceedings pending before this Tribunal, pursuant to the orders passed in OAs No.181-198/2018 dated 22.01.2019, the applicants are claiming further promotion 13 OA.No.170/00540/2020/CAT/BANGALORE on par with their juniors. Private respondents are said to be juniors to the applicants and their service particulars are given as under:
Names Date of Date of Date of Date of Date of
appoint merger to promotion promotion to promotion
ment as Mate as to Highly to Highly
Mazdoo Skilled Skilled -II Skilled -I
rs posts
Ravikumar 7.11.08 7.10.2011 1.7.2012 1.7.2015 TT done
K Manikhantan 25.11.08 7.10.2011 26.7.2013 1.9.2016 TT done
Devadas 10.3.09 7.10.2011 1.7.2012 1.1.2016 TT done
Chidananda 11.3.13 11.3.2013 1.1.2017 1.1.2017 NA
Rajesh S R 2.3.13 2.3.2013 1.1.2017 1.1.2017 NA
13. Admittedly, the private respondents were appointed as Mazdoors and they were promoted to Skilled posts since they were merged in the cadre of Mates w.e.f 09.09.2008. In compliance with the order passed by this Tribunal in OAs No.181-198/2018, notional promotion has been granted to the applicants as Mates (SSK) w.e.f 09.09.2008 on par with the private respondents. However, this Tribunal has categorically observed that they need not give any consequences of this benefit to the applicants as they have not worked in the new post.
14. We have perused the Recruitment Rules for the promotion from Mate to Skilled/HSK - II/HSK - I. The Recruitment Rules published in the Gazette of India dated 05.10.1991 contemplates the eligibility of three years regular service in the grade or Mate with two years regular service having 14 OA.No.170/00540/2020/CAT/BANGALORE ITI qualification and have passed trade test for the post of Skilled from Mate as prescribed by Engineer-in-Chief. Similarly, for the promotion from Skilled to Highly Skilled Grade -II, three years regular service in the grade and qualified in the trade test for the post of Highly Skilled Grade II as prescribed by Engineer-in-Chief is mandatory. Further, for promotion from HSK II to HSK I, the required criteria prescribed under the RR is, three years regular service in the grade and qualified in the trade test for the post of Highly Skilled Grade I as prescribed by Engineer-in-Chief. Thus, three years regular service in the concerned grade is one of the mandatory requirement. Indisputably, the applicants have cleared the trade test for Mates during 2016. Though by virtue of special part II order dated 10.08.2020 the applicants have been promoted notionally as Mates w.e.f 09.09.2008, they have actually worked in that post from September 2016 subsequent to the declaration of the trade test results.
15. Yet another essential criteria fixed under Recruitment Rules is qualification in the trade test for the respective post. The applicants herein have been qualified in the trade test for the post of Skilled in the year 2021. Accordingly, promotion from Semi Skilled to Skilled for the year 2018 and for the year 2020 has been issued by the respondents vide letter dated 18.09.2021 with the available vacancies and based on the Establishment sanction in the 15 OA.No.170/00540/2020/CAT/BANGALORE interest of state. Thus, availability of vacancies also plays a significant role in extending promotion. Merely for the reason that the applicant became eligible to take the trade test in the year 2019 for having putting the regular service of three years in the post of Mates sans complying with the other requirements specified in the Recruitment Rules i.e. passing of the trade test and the availability of the vacancies, no promotion could be extended in the higher post. At the cost of repetition, it is observed that no notional promotion could be given like the post of Mates to the higher post. In view of the extant Rules and the observations made by this Tribunal in OAs No.181-198/2018 that the respondents need not give the consequences of the benefit to the applicants because they have not worked in the new post, what was required to be extended being granting of notional benefit to the applicant from that earliest point of time, and the same being extended, further seeking notional promotion on par with the juniors who indeed were differently placed at the earliest point of time as Mazdoors, cannot be countenanced.
16. No doubt a review Departmental Promotion Committee constituted for the purpose of granting promotion to the applicants in OA No.181-198/2018 refers to the revised GSL sanction for relaxation with respect to Recruitment Rules for implementing 16 OA.No.170/00540/2020/CAT/BANGALORE CAT judgement with respect to (i) waival of passing trade test for promotion to the post of HSK/SK/HS II/HS I (ii) relaxation regarding performing requisite service in the feeder post for fulfilling the eligibility condition for promotion to the post of SK/HS as applicable (iii) release/sanction of additional vacancies for industrial category respective grade as received to implement the judgement as per the Convening Order dated 08.06.2020, the said Convening Order has been cancelled in terms of the cancellation of Convening Order dated 17.07.2020 issued by the Office of the Commander Works Engineer (AF) (North), Bangalore. Again the Convening Order dated 17.07.2020 has been ordered considering the effective date of promotion to the applicants with their corresponding immediate juniors as well as seniors in the respective category as on 09.09.2008 except one applicant who had joined the service after 09.09.2008 i.e. Shri. Arun Pitagi, who has joined the service on 10.11.2008. Accordingly, his date of applicability will be his date of joining i.e. 10.11.2008. No orders could be issued for promotion/notional promotion retrospectively to the applicants on par with their juniors in contrary to RRs.
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17. For the reasons aforesaid, we find no merit in the OA. In the result, OA stands dismissed.
No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
/rk/