Central Administrative Tribunal - Ernakulam
Thomas Zeno vs Union Of India on 9 August, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 782 of 2009
Tuesday, this the 09th day of August, 2011
CORAM :
HON'BLE MR. JUSTICE P.R. RAMAN, JUDICIAL MEMBER
HON'BLE MR. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER
Thomas Zeno, aged 31 years, S/o. T. Sebastian,
Junior Engineer (Electrical), Department of Lighthouse
& Lightships, (Ministry of Shipping, Road Transport &
Highways), Deep Bhavan, Gandhi Nagar,
Kadavanthara, Cochin-682 020, Residing at :
No. C.52, CPWD Quarters, Kunnumpuram,
Kakkanad P.O., Ernakulam District. ..... Applicant
(By Advocate - Mr. T.C.G. Swamy)
V e r s u s
1. Union of India, represented by the Secretary to the
Government of India, Ministry of Shipping, Road
Transport & Highways, Department of Lighthouses &
Lightships, No. 1, Parliament Street, New Delhi-110 001.
2. The Director General of Lighthouses & Lightships,
(Ministry of Shipping, Road Transport & Highways),
Deep Bhavan, A-13, Sector 24, Noida, District : Gautam
Budh Nagar (UP).
3. The Director - Regional Department of Lighthouses &
Lightships, (Ministry of Shipping, Road Transport &
Highways), Deep Bhavan, Gandhi Nagar, Kadavanthara,
Cochin-682020.
4. Shri Jimy Zacharias, Technician (Electrical),O/o. The
Director (Regional), Department of Lighthouses & Lightships,
(Ministry of Shipping, Road Transport & Highways),
Deep Bhavan, Gandhi Nagar, Kadavanthara,
Cochin-682 020.
5. Shri R. Saravana Kumar, Asst. Engineer (Electrical),
O/o. The Director (Regional), Department of Lighthouses &
Lightships, Deep Bhawan No. 5/20, Jaffar Syrang Street,
Chennai-600001.
6. Shri C. Rathnaswamy, Technician (Electrical), O/o. The Director
(Regional), Department of Lighthouses & Lightships,
Deep Bhawan No. 5/20, Jaffar Syrang Street,
Chenni-600001.
7. Shri Santhoshi Lal, Technician (Electrical), O/o. The Director
(Regional), Department of Lighthouses & Lightships,
Deep Bhavan, M.G. Road, Ghatkopar (East),
Mumbai - 400 077.
8. Shri D.K. Dey, Technician (Electrical), O/o. The Director
(Regional), Department of Lighthouses & Lightships, Deep
Bhavan, D-372/2, Taratala Road, Kolkatta - 700 088.
9. Shri M.K. Pathak, Technician (Electrical), O/o. The Director
(Regional), Department of Lighthouses & Lightships,
Deep Bhavan, 44-B.S. Road, Portblair-744101.
10. Shri Ananda Kr. Bhar, Technician (Electrical),
O/o. The Director (Regional), Department of Lighthouses &
Lightships, Deep Bhavan, 44-B.S. Road, Portblair-744101.
11. Shri Sunil Dhabai, Technician (Electrical), O/o. The Director
General, Department of Lighthouses & Lightships, Deep Bhavan,
A-13, Sector 24, Noida, District : Gautam Budh Nagar (UP).
12. Shri B. Raghu, Technician (Electrical), O/o. The Director
Regional),Department of Lighthouses & Lightships,
Deep Bhavan, No. 5/20, Jaffar Syrang Street, Chennai-600001.
13. Shri K. Siva Kumar, Technician (Electrical), O/o. The Director
(Regional), Department of Lighthouses & Lightships, East Wing,
5th Floor, Dock Labour Board, Karmik Jyothi, Port Area,
Vishakapatnam-530035. ..... Respondents
[By Advocate - Mr. M.V.S. Nampoothiry, ACGSC (R1-3)]
This application having been heard on 4.8.2011, the Tribunal on
09.08.11 delivered the following:
O R D E R
By Hon'ble Mr. K. George Joseph, Administrative Member -
Aggrieved by the Recruitment Rules relating to the post of Assistant Engineer (Elec) Group 'B' Gazetted to the extent it treats unequals, namely the Technicians (Elec) in the pay band of Rs. 5200- 20200 + GP Rs. 2800/- as equals to Junior Engineers (Elec) in pay band Rs. 9300-34800 + GP Rs. 4200/-, thus denying a fair and equitable consideration for promotion to the post of Assistant Engineer (Elec), the applicant has filed this O.A for the following reliefs:
(i) Declare that the col.12 of A1 Recruitment Rules to the extent it treats the Technicians (Elec) and Junior Engineer (Elec) in the scale of pay of Rs. 4500-7000 (PB Rs. 5200-
20200 + GP Rs. 2800/-) and Rs. 5000-8000 (PB Rs. 9300- 34800+GP Rs. 4200/-) respectively as equals for promotion to the post of AE (Elec) is arbitrary, discriminatory, unreasonable and unconstitutional;
(ii)Call for the records leading to the issue of A-1 Recruitment Rules and quash the same to the extent it enables the Technicians (Elec) to be considered for promotion to the post of AE (Elec);
(iii)Direct the respondents to consider and promote the applicant to the post of Assistant Engineer (Elec) Group 'B' Gazetted against one of the existing vacancies forthwith with all consequential benefits;
(iv)Call for the records leading to the issue of Annexure A-2 eligibility list and Annexure A-4 promotion list and quash the same;
(v)Award cost and incidental to this application;
(vi)Pass such other orders or directions as deemed just fit and necessary in the facts and circumstances of the case.
2. The applicant is a Junior Engineer in the Electrical wing of the Department of Light Houses and Lightships under the respondents 2 and 3. In that department, there are 2 subordinate cadres, namely, JE (Elec) and Tech. (Elec.). The minimum educational qualification for appointment as JE (Elec) is a Degree in Electrical Engineering or Diploma in Electrical Engineering with 3 years service whereas the minimum educational qualification for for direct recruitment of Tech. (Elec.) is only Matriculation with three years experience or Diploma in Electrical Engineering with 2 years experience. The normal method of recruitment to Tech. (Elec) is by promotion for which the age and educational qualification as applicable for direct recruitment is not applicable. The direct recruitment to the post of Tech. (Elec) is only in case of the method of recruitment by promotion fails. The scale of pay attached to the Tech. (Elec) prior to 01.01.1986 was Rs. 425-640 whereas the scale of pay attached to the post of JE (Elec) was Rs. 425-
700. With effect from 01.01.1986, the scale of pay of Rs, 425-640 and Rs. 425-700 were given a common replacement scale of Rs. 1400-2300. The 1st respondent thereafter promulgated the Department of Lighthouses and Lightships (Group 'B' Technical Posts) Recruitment Rules, 1994, for filling up of the vacancies in the cadre of AE (Elec) by promotion for which eligibility as per Col.12 of the Schedule thereto is as under :
"(a) JE (Electrical) (Pay Scale Rs. 1400-2300) with 8 years regular service in the grade;
(b) Technician (Electrical) (Pay Scale Rs. 1400-2300) with 8 years regular service in the grade.
Note: the eligibility list for promotion in the case of above officers shall be prepared with reference to the date of completion by these officers of the prescribed qualifying eligibility service in the relevant grade/post". With effect from 01.01.1996, the JE (Elec) was granted higher scale of pay of Rs. 1600-2660, which was given a replacement scale of of pay of Rs. 5000-8000 by the V Central Pay Commission. The VI CPC gave a replacement pay band of Rs. 9300-34800 + GP Rs. 4200/- as against pay band Rs. 5200-20200 + GP Rs. 2800/- given to Tech. (Elec). The applicant was initially appointed as a direct recruit JE (Elec) only in the scale of Rs. 5000-8000 on 26.08.2002. He is listed at serial No. 11 in the combined eligibility list for promotion to the post of AE (Elec) circulated by the 3rd respondent vide letter dated 08.07.2009 at Annexure A-2. It is seen that the Tech. (Elec) in the lower scale of pay are placed above the applicant in the matter of promotion to the post of AE (Elec). After this O.A. was filed, the 2nd respondent issued Annexure A-4 order dated 17.11.2009 promoting the 4th and 5th respondents herein as AE (Elec). The respondents No. 4 and 5 are the persons who were working in the cadre of Tech. (Elec) which was in the scale of pay of Rs. 4500- 7000 (PB Rs. 5200-20200 + GP Rs. 2800/-) and listed at serial Nos. 1 and 7 in Annexure A-2. Hence the O.A.
3. The applicant submits that Annexure A-1 Recruitment Rules to the extent it indicates that the Tech. (Elec) in the pay band of Rs. 5200- 20200 + GP Rs. 2800/- and JE (Elec) in the pay band of Rs. 9300-34800 + GP Rs. 4200/- as equals in the matter of promotion to the post of AE (Elec) Group 'B' Gazetted is arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution. JE (Elec) and Tech. (Elec) by no stretch of imagination can be treated as equals. JE (Elec) comes under the technical supervisory category whereas the Tech. (Elec) comes under the artisan category and mainly for the purpose of maintenance. At present, in all the cadres of AE Group 'B' Gazetted, persons belonging to the feeder category are only from the feeder category of Junior Engineers in the pay band of Rs. 9300-34800 + GP Rs. 4200/-. The only exception is in the case of AE (Electronics) in which case, Senior Radio Technicians and Head Light Keepers in identical scales of pay or Rs. 5500-9000 were being considered together alongwith Technician (Electronics) in a lower pay scale of Rs. 4500-7000. However, Technician (Electronics) is deleted from the feeder category by an amendment promulgated in the year 2007. The Technicians do not have direct line of promotion as Assistant Engineer in any of the department of the Central Government. The Junior Engineers who belong to the technical supervisory cadre in higher scales of pay were always on higher footing than the Technicians who are in the cadre of Artisans, utilised for the purpose of maintenance and not for supervision. Annexure A-4 in so far as it promotes the respondents 4 and 5 overlooking the priority of the persons like the applicant working in the higher grades, is arbitrary, discriminatory and contrary to law. The Junior Engineers, like the applicant, who were granted replacement scale of Rs. 9300-34800 with GP of Rs. 4200/- to be treated as Group 'B'. There can be no comparison of a Group 'B' Junior Engineer with a Group 'C' Technician in the matter of promotion to the post of Assistant Engineer. Therefore, the applicant prays for setting aside the Annexure A-2 eligibility list as well as Annexure A-4 promotion orders.
4. The respondents opposed the O.A. In their reply, they submitted that they have followed the Recruitment Rules applicable at the time of occurrence of vacancies for convening the DPC and for issuing promotion orders. They are taking all necessary steps to amend the Recruitment Rules for the post of Assistant Engineer (Electrical). The amendment of Recruitment Rules is likely to take time as they are to be approved by the different departments. The applicant will become eligible for promotion only on 26.08.2010 as per the Recruitment Rules in vogue. The post can be filled only as the Recruitment Rules in vogue at the time of occurrence of vacancies and the respondents are acting as per the guidelines issued by the Government from time to time. Therefore, the O.A is liable to be dismissed.
5. In the rejoinder, the applicant has produced the order of Madras Bench of this Tribunal in O.A. No. 747/2004 and the judgement of Hon'ble High Court of Madras in W.P. No.34106/2005 stating that the applicant herein is identically situated like the applicant in the aforesaid case and he is entitled to an identical relief.
6. Notice was served on all party respondents. Party respondents 9 and 11 in identical letters submitted that the reply filed by the Directorate is sufficient and that they would abide by the action by the Directorate to defend the case.
7. We have heard Mr. T.C. Govindaswamy, the learned counsel for the applicant and Mr. MVS Nampoothiry, the learned ACGSC appearing for the respondents and gone through the materials on record.
8. According to column 12 of the Schedule to the Department of Lighthouses and Lightships (Group 'B' Technical Posts) Recruitment Rules, 1994, the JE (Elec) and Tech. (Elec) are treated at par and as equal in the matter of promotion to the post of AE (Elec).
9. By virtue of Pay Band Rs. 9300-34800 with GP of Rs. 4200/-, the JEs (Elec) like the applicant are to be treated as Group 'B' whereas the Tech. (Elec) in the Pay Band Rs. 5200-20200 + GP Rs. 2800/- belong to Group 'C'. The JE (Elec) comes under the technical supervisory category whereas the Tech. (Elec) comes under the artisan category. The minimum educational qualification for appointment to the post AE (Elec) is a degree in electrical Engineering or Diploma in Electrical Engineering with 3 years experience whereas for Tech. (Elec), it is Matriculation pass with 3 years experience or Diploma in Electrical Engineering with 2 years experience which is not applicable for promotion, failing which only direct recruitment is resorted to. In terms of educational qualification, the nature of work, scale of pay and status, the post of JE (Elec) is superior to the post of Tech. (Elec). The JE (Elec) and Tech. (Elec) are clearly unequal. The Tech. (Elec) cannot be treated as equal to JE (Elec) for promotion to the post AE (Elec) Group 'B' gazetted. Treating unequals as equals is against the spirit of equality enshrined in Articles 14 and 16 of the Constitution.
10. Subsequent to the introduction of Department of Lighthouses and Lightships (Group 'B' Technical Posts) Recruitment Rules, 1994, the IV, V and VI Central Pay Commissions have consistently accorded higher status and pay to the JE (Elec) for which the minimum qualification is Diploma in Electrical Engineering.
11. At present, in all the cadres of AE Group 'B' Gazetted, persons belonging to the feeder category are only from the feeder category of Junior Engineers in the pay band of Rs. 9300-34800 + GP Rs. 4200/-. With the deletion of Technician (Electronics) from the feeder category for promotion to the post of AE (Electronics) by an amendment to the Recruitment Rules in the year 2007, the only exception now to the above general principle is the cadre of Tech. (Elec) who has been treated at par with JE (Elec) for promotion to the post of AE (Elec). This invidious anomaly needs to be removed.
12. Having realised the inequity of treating Tech. (Elec) at par with JE (Elec) for promotion to the post of AE (Elec) Group 'B' gazetted, the respondents have taken action to amend the Recruitment Rules way back in 2004, but so far not much progress has been made and the applicant and the JEs (Elec), like him, are put to irreparable harm. The respondents submitted that they are only following the Recruitment Rules in vogue as per the direction of the Government of India. However, they forgot that invariably there is a direction from the Government of India in the wake of introduction of new pay scales to amend the Recruitment Rules. In the instant case, the respondents have miserably failed to amend the Recruitment Rules in time. As held by the Apex Court in Bhoop vs. Matadin Bhardwaj, (1991) 2 SCC128 and in Nirmal Chandra Bhatacharjee vs. Union of India, 1991 Supp (2) SCC 363, that the mistake or delay on the part of the department should not be permitted to recoil on the party. Therefore, it is incumbent upon the respondents to remedy the injustice caused to the JEs (Elec) on account of delay on their part in amending the Recruitment Rules.
13. In O.A. No. 747/2004 (Randhir Singh vs. Union of India), the Madras Bench of this Tribunal in an identical matter pertaining to promotion to AE (Electronics), held as follows :
"4. ..... ....... The respondents have accepted that an anomalous situation exists and that the recruitment rules are under revision. The applicant is right in contending that when the anomalies have been the result of the Vth Pay Commission's recommendation which came into effect from 1996, the respondents should have taken prompt action to get the rules amended. The Department of Personnel and Training have also instructed to all Ministries and departments to review the recruitment rules. Had the respondents taken prompt action such a situation would not have arisen. If the respondents go ahead with the filling up of vacancies on the basis of these existing rules, it would cause immense hardship and irreparable harm not only to the applicant but to others as well those who are at the verge of retirement. We are therefore of the view that it would be appropriate for the then take up the promotions. We do not wish to express any opinion on the nature of the amendments to be made and the grouping of posts, etc. as prayed for by the applicant as this aspect comes within the domain of the administration. We are sure that they will keep in mind the anomalies pointed out by the applicant while finalising the amendments.
5. In the circumstances stated above, we direct the respondents not to go ahead with the promotions to the post of Assistant Engineer (Electronics) on the basis of the existing rules and we hereby set aside the combined eligibility list dated 29.7.2004. The respondents are also directed to complete the exercise of amending the recruitment rules within a period of six months from the date of receipt of a copy of this order. The OA is allowed. There will be no order as to costs."
14. The Writ Petition No. 34106/2005 filed before Hon'ble High Court of Madras challenging the aforesaid order of the Madras Bench of this Tribunal, was disposed of affirming the decision of the Tribunal and declared that the inclusion of the category of Technicians (Electronics) in the feeder category for promotion to the post of AE (Electronics) is unconstitutional. The relevant part of the said order of the Hon'ble High Court is reproduced as under :
"9. We are in agreement with the conclusions of the Tribunal in having set aside the eligibility list dated 29.7.2004, which did include such of those persons in the post of Technician (Electronics), even though as on the date of the drawl of the said eligibility list dated 29.7.2004, they continued to remain in Group-C non-gazetted poss while the other two categories, namely Head Light Keeper (S.S.) and senior Radio Technician were already classified as Group-B non-gazetted post in the scale of pay of Rs. 5,500-9,000/-. The inclusion of Technicians (Electronics) who were Group-C non-gazetted in the eligibility list, was certainly invalid inasmuch as by virtue of the nature of classification of the said post, they can never be compared with the other two positions, namely Head Light Keeper (S.S) and Senior Radio Technician, who were holding the higher post, namely Group-B non-gazetted. In effect, a comparison of Technician (Electronics) along with the Head Light Keeper (S.S) and Senior Radio Technician, would amount to inequals being considered together for the purpose of promotion to a higher post. For the very same reason, the Rule providing for such eligibility to Group-C non-gazetted post, namely Technician (Electronics) cannot also be approved.
10. Since the discrepancy in the said Rule is quite apparent on the face of the record, though this Writ Petition has been preferred by the Union of India, challenging the order of the Central Administrative Tribunal, we are of the view that it will be appropriate for this Court to set right the said discrepancy in order to ensure that at least in future, the discrepancy should not cause any injustice to the incomparable categories. We are, therefore, of the view that the Rule insofar as it related to the post of Assistant Engineer (Electronics) providing for the eligibility of Technician (Electronics) in the pay scale of Rs. 1,400-2,300 (pre-revised), the now revised as Rs. 4,500-7,000/- with eight years regular service in the grade, is unconstitutional and the same is accordingly set aside. It is however open to the petitioners/Union of India to come forward with appropriate amendment in the Rules, if for any special reasons, the post of Technician (Electronics) drawing the scale of pay on par with Head Light Keeper (S.S.) and Senior Radio technician to be made eligible for being considered for the post of Assistant Engineer (Electronics) by improving their status on par with the other two really eligible categories, viz., Head Light Keeper (S.S) and Senior Radio Technician. As rightly held by the Central Administrative Tribunal, till such time such amendments are brought to the Rules, it will not be permissible for the petitioners to consider the post of Technicians (Electronics) for promotion to the post of Assistant Engineer (Electronics)."
15. In the light of the above, it is obvious that there can be no comparison of JE (Elec) Group 'B' with the Tech. (Elec) Group 'C' in the matter of promotion to the post of AE (Elec). Following the ratio of the decision of the Hon'ble High Court of Madras in W.P. No. 34106/2005, we allow this O.A. as under.
16. It is declared that the Department of Lighthouses and Lightships (Group 'B' Technical Posts) Recruitment Rules, 1994, to the extent it treats JE (Elec) and Tech. (Elec) at par is unconstitutional. Consequently, Annexure A-2 eligibility list dated 08.07.2009 and Annexure A-4 promotion order dated 17.11.2009 are hereby quashed and set aside. The respondents are directed to amend the above Recruitment Rules suitably at the earliest but at any rate, within a period of six months from the date of receipt of a copy of this order and then to promote eligible candidates to the post of AE (Elec.) as per the amended Recruitment Rules.
17. No order as to costs.
(Dated, the 09th August, 2011)
(K. GEORGE JOSEPH) (JUSTICE P.R.RAMAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
cvr.