Central Administrative Tribunal - Delhi
Sachidanand vs M/O Defence on 22 February, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA No. 1508/2006
MA No. 2721/2015
Order reserved on : 18.12.2015
Order Pronounced on: 22.02.2016
Hon'ble Mr. A. K. Bhardwaj, Member (J)
Hon'ble Mr. V.N. Gaur, Member (A)
Sachindanand
S/o Sh. Thakur Dutt Sharma
R/o Ward No.16, New Defence Colony,
Behind Railway Quarters,
Murad Nagar,
Distt.Ghaziabad (UP).
- Applicant
(By Advocate: Sh. Yogesh Sharma)
Vs.
1. Union of India through the Secretary,
Ministry of Defence,
South Block,
New Delhi.
2. The Chairman/Director General,
Ordnance Factory Board,
Govt. of India,
Kolkata.
3. The Sr. General Manager,
Ordnance Factory,
Ministry of Defence,
Murad Nagar,
Distt. Ghaziabad (UP).
- Respondents
(By Advocate: Sh. V.S.R.Krishna)
2 OA No.1508/2006
ORDER
Hon'ble Shri V.N.Gaur, Member (A) The applicant, who retired on 31.05.2002 as Operator Material Handling Equipment (OMHE), Highly Skilled, has filed the present OA claiming promotion to the post of Master Craftsman (MCM) with retrospective effect in accordance with the provisions contained in the circular dated 12.07.2003 and for quashing the impugned order dated 01.03.2005 whereby his request for such promotion had been rejected by the respondents.
2. According to the learned counsel for the applicant, the respondents had merged all trades of Driver into one, namely, OMHE w.e.f. 21.01.1990 including the post of Driver Crane which the applicant was holding at the time of such merger. The Ministry of Defence restructured the cadre of Artisan Staff in Defence Establishment in modification of recommendations of 5th CPC by letter dated 12.07.2003. The Highly Skilled-I (HS-I) and Highly Skilled-II (HS-II) grades were merged to constitute Highly Skilled (HS) grade in the scale of Rs.4000-6000 and the post of Master Crafts Man (MCM) was placed in the grade of Rs.4500- 7000. These posts of Skilled and HS were to be in the ratio of 65:
35 and the post of MCM 10% of the HS grade i.e. 10% of 35%.
MCM was also not to be a part of the hierarchy and the placement in that grade was not to be treated as promotion from HS grade under normal promotion rules or under ACP Scheme. 10% of HS 3 OA No.1508/2006 grade personnel were to be placed in the grade of MCM w.e.f. 01.01.1996 and up to the date of issue of that order, i.e., 20.05.2003. Such placement of the individuals in posts resulting from restructuring and revision of the ratio, was to be made w.e.f. 01.01.1996 in relaxation of the conditions, if any, such as exemption from with trade test etc. as a onetime measure. These provisions were made applicable as a special case in relaxation of the existing rules/instructions to the employees who had retired or died after 01.01.1996. According to the learned counsel, the applicant's request was squarely covered by the provisions of this letter and he should have been upgraded to the post of MCM against the 10% stipulation as he was among the senior most, and exempted from trade test in terms of that policy letter.
3. The applicant filed the present OA in 2006 which was allowed by this Tribunal vide order dated 14.02.2007. The respondents, however, filed Writ Petition No.8939/2007 in the Hon'ble Delhi High Court which was decided on 27.09.2013. The Hon'ble High Court has remanded the OA to the Tribunal for a fresh adjudication by taking into account the observations made in that order.
4. Elaborating further, the learned counsel for the applicant stated that the respondents in this OA have taken a plea before the Hon'ble High Court that the letter dated 20.05.2003 had two 4 OA No.1508/2006 parts. The first part is applicable to those trades where the hierarchy of Skilled, HS-II/HS-I and MCM existed prior to the restructuring in 2003, the benefit of retrospective upgradation to the grade of MCM w.e.f. 01.01.1996 was given, even to those who had retired or died after 01.01.1996. The second part which applies to other trades, MCM grade has been introduced albeit to the extent of 25% of HS grade posts but with effect from the date of issue of that letter. The benefit of introduction of MCM in the left out trades was not extended with retrospective effect. According to the learned counsel, the respondents did not place the true picture before the Hon'ble High Court, as according to the recruitment rules the promotion channel in the grade of OMHE was Semi-Skilled to HS-II, from HS-II to HS-I and from HS- I to Line Mistry Trade. The Line Mistry Trade was eligible for promotion to the grade of Chargeman in the scale of Rs.5000- 8000. Thus in the OMHE trade the same hierarchy existed as required for the application of the provision of para 3 of the circular dated 20.05.2003. The respondents have therefore wrongly denied the benefit of that circular to the applicant with effect from 01.01.1996. He referred to Supreme Court's judgment in Director General of Posts and others vs. B.Ravindran and another, 1997 (1) SCC 641, where it was held that the respondents could not have, under the guise of a clarificatory order, taken away the right which had accrued to such employee 5 OA No.1508/2006 by the main order. In this case also by issuing some clarificatory order the applicant cannot be denied his legitimate claim of seeking the benefits of circular dated 20.05.2003. He also referred to Full Bench judgment in Shri Parkash Chand vs. Union of India &ors., 2005 (2) ATJ 617 that clarification cannot take away their right which has been accorded by the main rules/scheme.
5. Learned counsel for the respondents submitted that this Tribunal had erred in applying para 3 of the letter dated 20.05.2003 which was applicable only to those trades which already had the grade structure of Skilled, HS-II/HS-I and MCM. The applicant's trade OMHE did not have this structure, and therefore, the stipulation in para 3(d) and 3(e) that selection from HS Grade to MCM will be effective from 01.01.1996 even to those individuals who have retired or died, would not apply to the applicant. In fact, for the trades like that of the applicant, the letter under reference contained provision in para 4. Though para 4 lays down the ratio of the posts of skilled, HS and MCM as 45:55:25, there is no mention of its application w.e.f. 01.01.1996 or to those who had already retired. In fact, para 4 (vii) clearly states that the placement of individuals in the posts resulting from the restructuring would be onetime measure and shall be made from the date of issue of that order. The Hon'ble High Court had noted this position in its order dated 27.09.2013 and 6 OA No.1508/2006 stated that Tribunal in its order dated 14.02.2007 had not noted para 2, 3 (b), (c) and (e) as also sub para (vii) of para 4. According to the learned counsel, in view of the provisions noted by Hon'ble High Court in the abovementioned order, the benefit of introduction of the grade of MCM cannot be extended to the applicant who retired before the issue of circular dated 20.05.2003. The hierarchy of OMHE trade was from Skilled to HS-II, HS-II to HS-I and HS-I to Line Mistry, the grade of the grade of MCM was not relevant. It was also not true that the respondents have taken away any statutory entitlement of the applicant through any letter or clarification.
6. We have heard the learned counsels and perused the record. The applicant has prayed for benefit of the order dated 20.05.2003 to the extent of his placement in the MCM grade from 01.01.1996 by applying the relaxation that was provided in the above mentioned order as a onetime measure. This Tribunal had allowed the OA vide order dated 14.02.2007. The relevant portion of that order is reproduced below:
"8. From the perusal of the Presidential Order issued on 20.5.2003, the basic object by acceptance of partial modification in implementation of recommendations of Vth CPC is to create promotional avenues and career progression. In case of Scheme implemented in various trades particularly by carving out three categories into one i.e. Highly Skilled, which has merged into Highly Skilled I and Highly Skilled II, into another category of Master Craftsman and subsequent decision of the Government not to treat the placement in the grade as a promotion to Highly Skilled Grade either in normal promotion or ACP Scheme and in case it can be treated as promotion when Master Craftsman seeks promotion to the post of Chargeman Grade II. As such the decision of the Government to the 7 OA No.1508/2006 effect that in the matter of placement of 10% Highly Skilled grade where the promotional post exist in the respective trades or not is not relevant. Moreover, what we find from the respondents' Presidential Order is that placement of the individuals in post resulting from restructuring shall be made w.e.f. 1.1.1996 in relaxation of the conditions, if any, i.e. trade test etc, as one time measure. This has been reiterated in Operating Instruction wherein it is made clear in paras 1(f) and (e) that a trade wise seniority list of all Highly Skilled as on 1.1.1996 (after merging) should be prepared and circulated to all concerned and Highly Skilled I will be en bloc senior to Highly Skilled II and promotions made from HS II to HS I after 1.1.1996 shall become infructuous in view of the merger of posts. Further para 1(H) of the Operating Instruction provides that second ACP for eligible Skilled/HS employees should be given in the pay scale of Rs.5000-8000 since Master Craftsman in the pay scale of Rs.4500-7000 is not a part of the hierarchy and placement in this grade shall not be treated as promotion for Highly Skilled grade either under normal promotion rules or under ACP Scheme. In the present case, the applicant, who was holding Highly Skilled post, is to be promoted as Master Craftsman between the period from 1.1.1996 to 19.5.1993. What has been laid down vide Scheme date d20.5.2003 that 25% posts will be placed as per the seniority in the grade of Master Craftsman is integrated ratio in respect of Highly Skilled grade and left out grades are to be considered. It is not a defence of the respondents that the trade of the applicant, i.e., Operator Material Handling Equipment is not a left out trade. The aforesaid instructions would have no applicability in the case of applicant's trade and consideration thereto for Master Craftsman.
9. In above view of the matter, when post of Master Craftsman and placement thereto is not to be treated as promotion, whether any post of Master Craftsman exists in the trade of the applicant would not matter. What matters is the seniority list prepared and percentage of 10% of the Higher Skilled posts, which are to be considered for promotion to Master Craftsman. The methodology for consideration is prerogative of the respondents but the fundamental right of consideration cannot be denied to the applicant on the basis of clarification, which has overshot the Presidential Order and rather supplanted it, which is not permissible under law.
10. In the result, for the foregoing reasons, OA is allowed. Impugned order is set aside. Respondents are directed to consider the case of the applicant for the post of Master Craftsman and in such an event, on being found 'fit', he would be accorded the benefits from the due date and in such and event, he will not only be entitled to consequential benefits but also the consequential retiral benefits in accordance with law. This shall be done within a period of three months from the date of receipt of a copy of this order. No costs."
7. Hon'ble High Court by order dated 27.09.2013 remanded the latter back with the following order:
8 OA No.1508/2006
"1. Unfortunately, the Tribunal has not discussed the real issue which arises for consideration. Regretfully, the Tribunal has not even noted the material clauses of the policy circular dated May 20, 2003 pertaining to restructuring of the cadre of Artisan staff in Defence Establishment. The Tribunal has not noted paragraph 2, 3(b), (c) and (e) as also sub-para (vii) of para 4, which we note read as under:-
"2. The grade structure in the industrial as well as in the non-industrial trades wherever already available and the pay-scales of the Defence artisan staff shall stand modified w.e.f.1.1.96 as under:-
(i) Skilled : Rs.3050-4500
(ii) Highly Skilled : Rs.4000-6000
(iii) Master Craftsman :Rs.4500-7000
3. (a) xxxx
(b) The post of Master Craftsman shall not be part of hierarchy and the placement in this grade will not be treated as promotion for Highly Skilled Grade either under normal promotion rules or under ACP Scheme.
(c) The selection from Highly Skilled grade to the grade of Master Craftsman shall be 10% of Highly Skilled Cadre (i.e. 10% of 35% of the total and the placement in this grade shall be w.e.f. 1.1.96 and upto the date of the issue of these orders.
(d) xxxx
(e) The above provision may be made application, as a special case. In relaxation of the existing rules/instructions to the employees who have either retired or died after 1.1.96.
4 (i) to (vi) xxxx
(vii) The placement of the individuals in the posts resulting from the above restructuring and ratio revision shall be made from the date of issue of the orders, in relaxation of the conditions, if any, as one time measure."
2. Whereas sub-para (vii) of paragraph 4 clearly states that placement of the individuals in the posts resulting from the restructuring would be a onetime measure and shall be made from the date of issue of the order, sub-para (c) and (e) of paragraph 3 require the cadre restructuring and placement in the grads with effect from 1.1.96. As per sub-para (b) of para 3 the post of Master Craftsman is not a part of the hierarchy. At the same time sub-para (e) of para 3 states that the applicability of the policy circular shall be treated as a special case and in relaxation of the existing Rules/ instructions. 9 OA No.1508/2006
3. Whereas the writ petitioner argues that there being no post of Master Craftsman above the post of Operator Material handling equipment (OMHE) which the respondent was holding and thus would urge that the question of there being any Recruitment Rules for the post does not arise and thus the occasion for applicability of sub-para (e) of para 3 does not even come into being. On the contrary, the respondent would urge that as a result of three grades, irrespective of posts being in existing or not, benefit has to flow.
4. It was for the Tribunal to have noted the provisions as also the respective contentions and thereafter dealt with the same.
5. Accordingly, we dispose of the writ petition setting aside the impugned order dated February 14, 2007. We restore OA No.1508/2006 for fresh adjudication and for which parties shall appear before the Registrar of the Tribunal on November 11, 2013.
6. No costs."
8. The issue before us, therefore, is whether in terms of the circular dated 20.05.2003 the applicant is entitled for upgradation to the post of MCM w.e.f. 01.01.1996, having retired on 31.05.2002. The argument of the applicant is that MCM is not a promotion post, as it was created to the extent of 10% out of the posts of HS and the order dated 20.05.2003 squarely stated that the post of MCM would not be a part of the hierarchy. The post of Line Mistry was also HS grade and therefore the provision of para 3(c) would be applicable to him. We however find that the opening sentence of para 2 the order dated 20.05.2003 states that the grade structure in the Industrial or Non-Industrial trades "wherever already available" and the pay scales shall stand modified w.e.f. 01.01.1996 as under:
10 OA No.1508/2006
(i) Skilled : Rs.3050-4500
(ii) Highly Skilled : Rs.4000-6000
(HS-I & HS-II)
(iii) Master Craftsman : Rs.4500-7000
9. The first condition for the application of the revised scales is that the hierarchy of Skilled to HS-II/ HS-I or MCM should have existed in the concerned trade and only in that case, the provisions of para 3 (a) (b) (c) (d) and (e) would be applicable. Para 3 (c) states that the selection of MCM shall from HS grade to the extent of 10% of their strength and shall be placed in that grade w.e.f. 01.01.1996 and up to the date of issue of that order i.e. 20.05.2003 and this benefit will be available to those employees also who had retired during this period. On the other hand, para 4 of that letter talks of all the trades including the left out trades, obviously referring to those trades where the grade structure, Skilled/HS-II/HS-I/MCM, did not exist. The respondents introduced the grades of Skilled, Highly Skilled and MCM in the ratio of 45:55:25 but did not make it applicable w.e.f. 01.01.1996 or to the retired employees. This was made more explicit in para 4 (vii) stating that the placement of individuals in the posts resulting from the above restructuring and ratio revision shall be made from the date of issue of the orders, i.e. 20.05.2003.
11 OA No.1508/2006
10. The question that arises is whether the post of MCM existed in the hierarchy of applicant's trade i.e. OMHE. The respondents have placed on record a copy of SRO 185 dated 01.11.1984 which deals with the ordinance factories Group-C and Group-D Industrial Posts Recruitment Rules. The trade and name of posts, their classification and scales of pay attached have been given in the Schedule to the SRO. The trades and grades of the posts have also been defined in Annexure 'A' & 'B' of the said Schedule. The trade of OMHE finds mention at Sl. No. 27 of Annexure-B and it indicates that the posts exist in that trade in the grades of semi- skilled and HS-II; promotion in HS-I shall be in Line Mistry Trade. Learned counsel for the applicant had argued that since Line Mistry Trade is equivalent to HS-I and the next promotion as per practice is to the post of Chargeman-II, the post of MCM not being a part of hierarchy, it cannot be said that the hierarchy was any different from that envisaged in para 3 of the circular dated 20.05.2013. However, we find that this argument to be rather tenuous as the schedule to SRO 185 does not mention MCM among the posts available in the hierarchy of OMHE while it does so in respect of many other trades. Some examples that show MCM/Line Mistry as part of hierarchy have been reproduced below:
Sl.No. Name of Trade Grade in which post exist.
2. Bar Nill operator Semi Skilled to Master Craftsman
3. Borer -do-12 OA No.1508/2006
5. Cane Worker Semi-skilled-Further line of promotion in the trade of Carpenter
6. Chemical Plumber Semi-skilled to Master Craftsman 6A Chemical Process Worker Semi-skilled to skilled. Promotion to HS Gr.II and HS Gr.III will be in Line Mistry Trades.
8. Danger Building Worker Semi-skilled to skilled promotion to HS Gr.II and HS Gr.III will be in Line Mistry.
9. Driver Locomotive (Steam Semi-skilled to HS-II-promotion to HS Gr.I shall be in Line Mistry Trade.
10. Driver Tractor Semi-skilled and skilled Promotion to HS Gr.II and Gr.I shall be in Line Mistry Trade.
11. Engraver Semi-skilled to Master Craftsman
14. Forgeman Semi-skilled to HS.Gr.I
15. Heat Treatment Operator Semi-skilled to HS Gr.I
16. Jig Borer Semi-skilled to HS Gr.I
22. Line Mistry Semi-skilled to HS Gr.I
25. Optical worker Semi-skilled to Master Craftsman.
27. Operator Material Handling Semi-skilled to HS Gr.II Promotion in HS Gr.I shall be in Equipment Line Mistry Trade.
11. A perusal of the above table will show that wherever MCM was intended to be a part of the hierarchy that has been specifically mentioned in Annexure-B. It can be thus concluded that the provisions contained in para 2 & 3 of the letter dated 20.05.2003 do not apply to the applicant. Instead, the provision of para 4 of the letter would be applicable to the applicant, the benefit of which has been made effective from the date of issue of that order i.e. 20.05.2003. The applicant having retired on 31.05.2002, therefore, would not be eligible for that benefit.13 OA No.1508/2006
12. In the light of the foregoing discussion and for the reasons stated, we find that the request of the applicant is not covered by the provisions contained in restructuring letter issued by the respondents dated 20.05.2003 and the OA is, therefore, dismissed being devoid of merit.
( V.N. Gaur ) ( A.K.Bhardwaj ) Member (A) Member (J) February 22, 2016 'sd'