Central Administrative Tribunal - Allahabad
Gulab Chand Aged About 59 Years vs The Union Of India on 21 May, 2013
Reserved on 30.04.2013 CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH, ALLAHABAD Original Application No. 393 of 2009 Allahabad this the, 21st day of May, 2013 Honble Mr. Justice S.S. Tiwari, Sr. J.M./HOD Honble Mr. Jayati Chandra, Member (A) Gulab Chand aged about 59 years, Son of late Kanhai, Employed as Tracer in Ordnance Equipment Factory, Kanpur, R/o Near Shanu Tent House, Golaghat Cantt., KANPUR 208 004. Applicant By Advocate: Sri R.K. Shukla Versus 1. The Union of India, Through the Secretary, Ministry of Defence, Deptt. Of Defence Production & Supplies, New Delhi-11. 2. The Addl. D.G.O.F., Ordnance Equipment Factories Group HQrs., Ayudh Upaskar Bhawan, G.T. Road, Kanpur Nagar. 3. The General Manager, Ordnance Equipment Factory, Kanpur. Respondents By Advocate: Sri S.N. Chatterji O R D E R
By Honble Mr. Justice S.S. Tiwari, Sr. J.M./HOD Instant O.A. has been filed by the applicant for the following relief(s): -
(i) To issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 1.12.2003 (Annexure A-I) canceling the petitioners pay fixation & benefits in the pay scale of Rs.4500-7000 w.e.f. 9.8.1999, under ACP-I Scheme.
(ii) To issue a writ, order or direction in the nature of Mandamus directing the respondents to restore the applicants pay at the same basic pay and scale of Rs.4500-7000 w.e.f. 9.8.1999 which he was drawing before passing of order dated 1.12.2003.
(iii) To issue a writ, order or direction in the nature of Mandamus directing the respondents to refund back the amount of arrears already recovered by the respondents after cancellation of ACP-I benefits.
(iv) To issue any other suitable writ, order or direction in the facts and circumstances of the case which this Honble Tribunal may deem fit and proper.
(v) To award cost of the petition.
2. The facts giving rise to this O.A. may be mentioned as follows: -
That the applicant was initially appointed on the post of unskilled labourer in the pay scale of `196-3-220-EN-3-230 in Ordnance Equipment Factory, Kanpur. Subsequently, he was appointed on the post of Tracer at the minimum of pay scale of `260-6-300-EB-8-340-10-380-EB-10-430 against the existing vacancy w.e.f. 01.10.1982 with a probation period of two years. Consequent upon the implementation of Fifth Central Pay Commission Report on the matter of Assured Career Progression (hereinafter referred to as ACP) Scheme in order to mitigate the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotion avenues, the department launched the ACP Scheme w.e.f. 09.08.1999. Since the applicant was directly recruited, firstly on the post of unskilled labourer and subsequently on the post of Tracer, and has also completed 12 years of service, the respondent No. 3 i.e. General Manager, Ordnance Equipment Factory, Kanpur granted him financial up gradation under ACP Scheme-I w.e.f. 09.08.1999 in the pay scale of `4500-7000/- vide order No. 1712 dated 02.08.2000 and his pay was fixed at `4625/- w.e.f. 09.08.1999. The enhanced pay was paid to the applicant for about more than two years. The respondent No. 3 issued a show cause notice on 10.11.2003 to the applicant as to why his financial up gradation granted under ACP-I in the pay scale of `4500-7000/- may not be cancelled as he had already availed one fast track promotion from Labour to Tracer and up gradation/placement in higher pay scale in the post of Tracer, he is not eligible for financial up gradation under ACP-I. The applicant replied to the above show cause notice vide representation dated 14.11.2003 but the respondent No. 3 without considering his representation cancelled the applicants ACP-I benefits illegally on the sole ground that the applicants appointment to the post of Tracer from unskilled Labour was a fast track promotion and hence he was not eligible for financial benefits under ACP-I Scheme. Accordingly, his pay was revised and fixed at `4400/- w.e.f. 20.04.1999 vide Order No. 63 dated 10.01.2000. This contention of respondent No. 3 is absolutely wrong as no recruitment through departmental examination in respect of unskilled labour to any promotion was conducted in the department. As per existing recruitment rules also the post of Tracer is not a promotional post and cannot be filled in either through regular/routine promotion or through Limited Departmental Competitive Examination. It can only be filled by direct recruitment and the applicant was directly recruited on the post of Tracer w.e.f. 01.10.1982 on the non-industrial establishment (Group C). The post of unskilled labour is not a feeder post for promotion of Tracer as per existing recruitment rules. The respondent No. 3 not only cancelled the ACP-I benefits granted to the applicant but also made recovery of amount already paid to the applicant as arrears w.e.f. 09.08.1999 for no fault of the applicant. This recovery is also illegal and unjustified. Once the benefit of ACP Scheme is granted to the applicant, it cannot be withdrawn by issuing clarification unless the Government amends the scheme in accordance with law. Since the respondents did not pay any heed to the request of applicant, the present O.A. has been filed mainly on the grounds that the order/action of respondent No. 3 cancelling the applicants up-gradation under ACP-I Scheme in the pay scale of `4500-7000/- and reducing his pay after two years is patently illegal, arbitrary and discriminatory because in similar situation benefit of financial up gradation under ACP-I Scheme, granted to other employees, has not been withdrawn. The respondents action of treating the applicants appointment on the post of Tracer as a fast track promotion is contrary to the existing rules. Unless the ACP Scheme is amended or clarified, the action of respondent No. 3 is not justified. The matter of recovery being a civil consequence cannot be made without issuing show cause notice.
3. The respondents have denied the allegations made in the O.A. and contended that the applicant was initially appointed to the post of Labour B w.e.f. 01.06.1976 in the pay scale of `196-232/- and after passing the requisite trade test he was re-designated to the post of Labour A in the pay scale of `196-232 + 10/ Spl. Pay w.e.f. 01.09.1980 revised to that of `210-290/- w.e.f. 16.10.1981. Inadvertently taking the services of the applicant from the date of appointment to the post of Tracer w.e.f. 01.10.1982 and on completion of 12 years of service, he was allowed financial benefit (ACP-I) under ACP Scheme w.e.f. 09.08.1999 in the pay scale of `4500-7000/-, and his pay was accordingly fixed. The contention of applicant otherwise is misconceived and misleading. A show cause notice dated 10.11.2003 was given to the applicant to explain as to why the financial up gradation granted to him in ACP-I Scheme in the pay scale of `4500-7000/- should not be cancelled and after careful consideration of his representation financial up-gradation granted vide F.O. Part-II No. 1712 dated 02.08.2000 was cancelled by a reasoned and speaking order dated 28.11.2003. It is further submitted that the movement of departmental candidate to a higher post i.e. from the post of Labour A to Tracer shall be treated as Fast Track Promotion, and shall be counted as regular promotion for the purpose of ACP Scheme. Since the applicant was already granted two up-gradations i.e. first from Labour A to Tracer (fast track promotion) and second up gradation on recommendation to the higher post of Tracer hence, he was not eligible for financial up gradation under ACP Scheme. The Ordnance Factory Board vide letter dated 18.09.2000 has clarified that the movement of departmental candidates to higher post in such cases through Limited Departmental Selection Process shall be treated as a fast track promotion and shall be counted as regular promotion for the purpose of ACP Scheme. Such incumbent shall be eligible for second ACP if otherwise eligible. Since the applicant was appointed to the post of Tracer from Labour A accordingly his movement from Labour A to Tracer has been treated as a fast track promotion. The post of Tracer is promotional post. As per SRO, the mode of filling up the post of Tracer is by transfer failing which by promotion after adjustment of surplus failing which by direct recruitment. The applicant was appointed by promotion to the post of Tracer (NIE) from Labour A through Limited Departmental Competitive Examination. As per SRO for promotion to Tracer, Blue Printer and Record Supplier are the feeder grade. The applicant was holding the post of Labour A and through Limited Departmental Examination, he was appointed to the post of Tracer on 01.10.1982. The applicant has got no case and the O.A. deserves to be dismissed.
4. The applicant has filed the Rejoinder Affidavit mainly reiterating the earlier stands taken by him in the O.A. and denying the averments made in the Counter Affidavit.
5. The applicant has placed reliance on some documentary evidence, which is annexure A-1 to A-11, filed by the applicant on record. Subsequently, the applicant has also filed a copy of the Order passed by the Central Administrative Tribunal, Mumbai Bench in O.A. No. 28 of 2004.
6. The respondents have not filed any documentary evidence in support of their contentions.
7. We have heard the learned counsel for the parties and perused the papers on record.
8. The main issue in this O.A. is as to whether the applicant was directly recruited on the post of Tracer, as alleged by him, or he was appointed on that post by way of fast track promotion through Limited Departmental Competitive Examination. Learned counsel for the applicant has vehemently argued that there was no procedure for fast track promotion in the department. The applicant was directly recruited to the post of Tracer. On the other hand, learned counsel for the respondents has contended that the applicant was not directly recruited on the post of Tracer rather initially he was appointed to the post of Labour B w.e.f. 01.06.1976 in the pay scale of `196-232/- and after passing the requisite trade test, he was re-designated as Labour A in the pay scale of `196-232+` 10/- as special pay w.e.f. 01.09.1980, revised to that of `210-290/- w.e.f. 16.10.1981. The respondents have also relied upon the extract of Ministry of Defence, Department of Defence Production and Supplies, New Delhi letter No. 45 (1)/98/III/D (Fy)-II dated 20.04.1999, received vide OFB letter No. 595/Tracer/A/NI/96 dated 18.05.1999 regarding revision of pay scale of Tracer in Ordnance Factory Organization, which is as under: -
The existing Tracers of Ordnance Factories Organizations who are in the pay scale of Rs.3200-4900 should be placed in the higher pay scale of Rs.4000-6000 if they have completed 7 years of service in the pre revised pay scale of Rs.975-1540/- revised to Rs.3200-4900/- w.e.f. 01.01.1996 on the date of issue of letter. On the basis of aforesaid letter, the applicant had been granted up-gradation in the higher pay scale of `4000-6000/- and his pay was fixed at `4400/- w.e.f. 20.04.1999 from the date of issue of the order. It has further been submitted by the respondents counsel that the movement of departmental candidate to a higher post i.e. from the post of Labour A to Tracer shall be treated as fast track promotion and shall be counted as regular promotion for the purpose of ACP Scheme. Since the applicant was already granted two up-gradations, first from Labour A to Tracer (fast track promotion) and secondly up gradation on replacement in the higher pay scale to the post of Tracer, he was not eligible for financial up-gradation under ACP Scheme which was inadvertently granted to him and subsequently the mistake was corrected. He has further argued that as per clarification in the OFB letter dated 18.09.2000, the movement of departmental candidates to higher post in such cases through Limited Departmental Selection Process, shall be treated as a fast track promotion through Limited Departmental Competitive Examination, and shall be counted as regular promotion for the purpose of ACP Scheme. The applicant through Limited Departmental Competitive Examination was appointed to the post of Tracer in the pay scale of `260-430/- revised to `975-1540/- w.e.f. 01.01.1986 and `3200-4900 w.e.f. 01.01.1996, which is treated as fast track promotion. Admittedly, the applicant had joined the service as Labour B on 01.06.1976. He has not come with a case that after joining the service, he resigned from it and there was an advertisement for conducting the examination of Tracer, he appeared in that examination as a direct recruit and was selected and, thus, he was directly recruited to the post of Tracer. He never says that there was any kind of break in his service right from 01.06.1976. In other words, if he was in the service of department, on what basis he says to have been directly recruited to the post of Tracer, has not been clarified in this O.A. On the other hand, the respondents have come with a definite case that initially the applicant was appointed as Labour B on 01.06.1976, subsequently he was re-designated as Labour A on 01.09.1980, and thereafter he was appointed as Tracer on 01.10.1982 through Limited Departmental Competitive Examination. A perusal of annexure-3, at page 17, which is a representation given by the applicant to the General Manager, Ordnance Factory Board, Kanpur for grant of benefit of ACP Scheme, in which he has himself admitted that he was given appointment on the post of Tracer on 11.10.1982 after passing a departmental test in IES to NIES. In view of this admission of the applicant himself, his contention that he was directly recruited to the post of Tracer is falsified.
9. As regards the contention of applicant that the benefit of ACP given to him, has illegally been cancelled, also does not carry any force in view of the above facts that he had already been given promotion by way of fast track promotion through Limited Departmental Competitive Examination on the post of Tracer from the post of Labour A and also his pay was revised subsequently on the post of Tracer in view of clarification letter issued by the Ministry of Defence, Department of Defence Production and Supplies, New Delhi, which has already been referred to above. If any financial benefit was granted to him under some wrong impression or inadvertently, its recovery is not illegal.
10. As regards the Order passed in O.A. No. 28/2004 by C.A.T., Mumbai Bench, the applicant cannot get any benefit of it as its facts and circumstances are different from the present case.
11. In view of above discussions, we are of the view that the applicant could not make out a case in his favour and no relief can be granted to him. O.A. lacks merit hence, it is hereby dismissed. No order as to costs.
(Ms. Jayati Chandra) {Justice S.S. Tiwari}
Member A Member J
/M.M/
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