Central Administrative Tribunal - Chandigarh
Unknown vs Union Of India Through Its Secretary on 30 September, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
(ORDER RESERVED ON 27.09.2016)
Date of filing: 12.01.2015
OA No. 061/00005/2015 Date of decision: 30.09.2016
CORAM: HONBLE MR. JUSTICE L.N. MITTAL, MEMBER (J)
HONBLE MRS. RAJWANT SANDHU, MEMBER (A)
Surinder Singh (working as Chargeman) son of Late Sh. Daljeet Singh, Unit 626, EME Bn. Western Command (Jammu), C/o 56 APO.
APPLICANT
BY ADVOCATE: Sh. Sanjeev Pandit.
VERSUS
1. Union of India through its Secretary, Ministry of Defence, Army Headquarter, New Delhi.
2. MG, EME, Western Command, Chandimandir.
3. OIC, Records, EME, Secunderabad.
4. Commanding Officer, Unit 626, EME Bn., C/o 56 APO, Pin-906626.
5. Commanding Officer, Unit 7015, EME Bn. Station Workshop, Northern Command, Srinagar.
6. Ravi Kumar Lalla, presently attached with Unit 626, EME Bn., C/o 56 APO, Pin-906626.
RESPONDENTS
BY ADVOCATE: Sh. Sanjay Goyal, counsel for respondents no.1 to 5.
None for respondent no.6.
ORDER
HONBLE MRS. RAJWANT SANDHU, MEMBER (A):-
1. This Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:-
8 (i) To quash the impugned promotion-cum-posting order dated 21.07.2014 (Annexure A-1) qua the applicant and further to quash the Seniority List dated July 2012 (Annexure A-3) of Tradesmen Part-1 Cadre who have passed the Supervisory Test qua the applicant and impugned order dated 13.09.2014 (Annexure A-6) vide which the claim of the applicant claiming seniority over and above respondent no.6 shown in the Seniority Roll of Part-1 Cadre Tradesmen who have passed Supervisory Test to become eligible for promotion to the post of Chargemen (Part-1 Cadre) had been illegally rejected.
(ii) To further issue directions to the official respondents to show the applicant over and above respondent no.6 in the Seniority List of Part-1 Cadre of Tradesmen who have cleared the Supervisory Test and further to retain the applicant at Unit No.626, EME Bn. (Jammu) being permanent senior most Instrument Mechanic after promotion to the post of Chargemen in the said Unit.
2. It is stated in the OA that the applicant was appointed on 15.02.1980 as Instrument Mechanic (Part-1 Cadre) against the regular vacancy at 14 EME Bn. (Command) C/o 56 APO. Thereafter, he was posted to Unit 313, Station Workshop, C/o 56 APO on 25.06.1984 which was lateron merged with 626, EME Bn. He had passed Supervisory Test in 2000 in order to secure further promotion to the post of Chargeman. One Sh. Ravi Kumar Lalla TCM (respondent no.6), Sh. Krishan Khosa TCM and Sh. Suman Kumar Moza TCM were temporary attached with the unit of applicant i.e. Unit 626, EME Bn. C/o 56 APO from their parent unit in 1992 and 2000 respectively. However, respondent no.6 is originally from parent Unit 7051, EME Bn. Northern Command (Srinagar). The DG EME (EME-CIV-3), Army Hq., New Delhi vide letter dated 12.01.1999 (Annexure A-2) addressed Hq. Northern Command (EME Branch), C/o 56 APO to the effect that willingness of such employees as to whether they wish to be posted at their present unit may be obtained and forwarded to DG for further submission and if they decline to give willingness, they will have to revert to their parent unit on return of normalcy in Kashmir Valley. Deficiencies generated by the migrants cannot be filled up as a permanent measure. The EME, Secunderabad issued a Seniority Roll of Part-1, Cadre of Tradesmen in July 2012 wherein the respondent no.6 has been shown senior to the applicant, although respondent no.6 is only temporarily attached with Unit 626, EME Bn. (WC), Jammu. A copy of impugned Seniority List is attached (Annexure A-3).
3. It is further stated that the respondent no.4 had issued promotion-cum-posting order dated 21.07.2014 (Annexure A-1) of various Tradesmen Part-1 Cadre to the post of Chargemen Part-1 Cadre in the pay band of Rs.9300-34800+4200 GP against the existing vacancies of Corps of EME. In this order, the applicant has been shown at Sr. No.(ad) promoted w.e.f. 25.04.2014 as Chargemen and posted out to Unit 151 FWC (7015) EME Bn., Srinagar, whereas respondent no.6 (Sh. Ravi Kumar Lalla) who was temporary attached to Unit 626, EME Bn. (Jammu) had been promoted as Chargeman w.e.f. 25.04.2014 but he has been retained by the official respondents wrongly in the same Unit 626, EME Bn. (Jammu) C/o 56 APO. Furthermore, Sh. Jai Krishan Khosa TCM and Sh. Suman Kumar Moza TCM were also promoted as Chargemen and transferred out to 11 Corps Zone Workshop. After the promotion-cum-posting order dated 21.07.2014 (Annexure A-1) was issued the applicant had submitted a representation for retaining him in Unit 626, EME Bn. after promotion to the post of Chargeman on the ground that he had joined as Instruments Mechanic on 15.02.1980 against the regular vacancy at 14 EME Bn. (Command) C/o 56 APO and thereafter, he was posted to Unit 313, Station Workshop, C/o 56 APO on 25.06.1984. The said Unit 313, Station Workshop, C/o 56 APO was later on merged with Unit 626, EME Bn. It has been further mentioned in the representation dated 29.08.2014 (Annexure A-4) that the applicant had cleared supervisory test in the year 2000 in order to secure further promotion to the post of Chargeman. The applicant has further stated that according to the Seniority Roll of Part-1 Cadre Tradesmen of July 2012, the respondent no.6 was attached to the unit of applicant i.e. Unit 626, EME Bn. (Jammu) on temporary basis on 18.06.1992 and since then he is enjoying his seniority from his parent unit i.e. 7015, EME Bn. NC, (Srinagar) from the date of his enrolment after enjoying many compassionate/mutual postings. The respondent no.6 had also got 3-4 opportunities for promotion to the post of Chargeman from his parent unit but he refused to accept his promotion from his parent unit i.e. 7015, EME Bn. NC, (Srinagar). The applicant has further apprised the respondent no.3 that if respondent no.6 wanted to get promotion to the post of Chargeman, then he can only be promoted from his parent unit i.e. 7015, EME Bn. NC, (Srinagar) and not from the unit of applicant i.e. 626, EME Bn. WC, C/o 56 APO as the respondent no.6 is temporarily attached to the said unit. The applicant has requested that he be retained in Unit 626, EME Bn. WC (Jammu) being senior most employee in Part-1 Cadre of Tradesmen.
4. This representation of the applicant was forwarded to EME Records (CA-3), Secunderabad by the Commanding Officer of 626, EME Bn. on 31.08.2014 (Annexure A-5). Respondent no.3 vide letter dated 13.09.2014 (Annexure A-6) informed respondent no.4 that respondent no.6 (Sh. Ravi Kumar Lalla) TCM, Jai Krishan Khosa TCM & Sh. Suman Kumar Moza TCM were posted to 626, EME Bn. as a special case and they were treated as migrant employees. It has been further clarified in the letter that in terms of IHQ of MOD letter no.66237/J&K/EME CIV-3 dated 13.03.1997 the four employees who have opted to be retained in the parent unit should be posted back to their parents unit. Till then, they may continue on temporary attachment and have the seniority in their parent units and should be considered for promotion and promoted as and when they are due for it by their parent unit. Thus the seniority assigned in respect of the migrant employees is in order. This information was conveyed to the applicant vide letter dated 30.09.2014 (Annexure A-7).
5. The applicant had sent a registered legal notice dated 17.10.2014 (Annexure A-8) to the respondents. In the said legal notice, the applicant stated that the respondent no.6/Ravi Kumar Lalla is attached to the Unit 626, EME Bn. WC, (Jammu) on temporary basis whereas the applicant was taken on strength of the said unit on 25.06.1984, much prior to respondent no.6. The respondent no.6 has joined the Unit 626, EME Bn. WC (Jammu) on 18.06.1992 being temporary employee of Unit 7015, EME Bn. NC, (Srinagar). The applicant has further mentioned in the said legal notice that according to IHQ of MOD letter no.66237/J&K/EME CIV-3 dated 13.03.1997 it has been clarified that a temporary employee can be considered for his promotion from his parent unit as and when he is due for it. The respondent no.6 is admittedly a temporary employee of Unit 7015, EME Bn. NC, Srinagar attached to Unit 626, EME Bn. WC (Jammu) and if he is seeking promotion to the post of Chargeman then he is to go back to his parent Unit 7015, EME Bn. NC (Srinagar). The official respondents have wrongly retained respondent no.6 in the present unit of applicant i.e. Unit 626, EME Bn. WC (Jammu) after promotion to the post of Chargeman despite the fact that respondent no.6 had joined armed forces on 07.04.1980 i.e. later than the applicant. The respondents did not reply to the legal notice. Hence this OA.
6. In the written statement filed on behalf of respondents no.1 to 5, it has been stated that private respondent no.6 namely, Ravi Kumar Lalla is senior to the applicant though temporarily attached with the 626 EME Bn. in terms of IHQ of MoD (Army) letter dated 13.03.1997. It was clarified in this letter that on examining the case at appropriate level the four employees who have opted to be retained in the present unit should be posted back to their parent unit. Till then, they may continue to be on temporary attachment and have the seniority in their parent unit and should be considered for promotion and promoted as and when they are due for it by their parent unit. Promotion-cum-posting order dated 12.07.2014 in respect of Tradesmen Part-1 cadre to the post of CM is absolutely in order and applicant has been posted to 151 Fd. Wksp. Coy. (7015 EME Bn.) since no vacancy existed in 626 EME Bn.
7. No reply was filed on behalf of respondent no.6, despite deemed service.
8. In the replication to the written statement filed on behalf of respondents no.1 to 5 the content of the OA has been reiterated. It is also stated that in the seniority list the parent unit of the respondent no.6 is wrongly mentioned as 626 EME. Respondent no.6 has only been temporarily attached with the 626 EME Bn. and his parent unit is 7015 EME Bn. The applicant is submitting the following table for consideration.
Sr. no.
Number, Trade, Name & Unit` Date enrolment Date of TOS in 626 EME Bn.
Date of supervisory test passed
1. T-134 Inst. MACH Surinder Singh, 626 EME Bn.
15.02.1980 25.06.1984 as regular posted Year 2000
2. T-164 TCM, Ravi Kumar Lalla, 626 EME Bn. (wrongly mentioned, 7015 EME Bn.) 07.04.1980 18.06.1992 as temporary posted July 2001
9. In a subsequent affidavit filed on 29.02.2016 on behalf of the respondents, it has been stated that EME (R) is the competent authority for maintaining seniority, promotion and posting. Respondent no.6 is shown at Sr. no.5 of the list, whereas, the applicant is shown at Sr. No.33 as per EME letter dated 07.01.2014. Copy of the seniority rule of Part-1 cadre Tradesmen who have passed supervisory test to become eligible for promotion to charge-men (Part-1) Cadre is attached (Annexure R-2). The applicant is on permanent posting 626 EME Bn. on compassionate grounds, w.e.f. 25.06.1984 as per Army letter dated 31.05.1984. Entry to this effect has been endorsed in the service-book of the individual. Photocopy of the same is attached (Annexure R-3). Seniority of the applicant is being maintained from that date as per CPRO 73/73.
10. Another affidavit was filed on behalf of the respondents on 04.07.2016, wherein it has been stated that respondent no.6 was originally appointed on 07.04.1980 as TCM. Vide order dated 11.06.1992, respondent no.6 was transferred from 301 Station Workshop EME to 313 Station Workshop EME. Station Workshop 301 has been disbanded and the Station Workshop 313 has been merged with 626 EME Bn. Thus, with respect to letter dated 13.03.1997 the parent department of respondent no.6 is the present respondent department and as such he would be eligible for being considered for promotion from the date of 07.04.1980 as it is clear that the persons engaged on temporary attachment would have seniority in their parent unit and be considered for promotion as and when due in their parent unit only. The applicant would be considered for promotion from the date he was taken on the strength of 626 EME i.e. 25.06.1984. He is junior to respondent no.6. Respondent no.6 came in the zone of consideration for the post of Charge-man amongst others and accordingly has been promoted to the post of Charge-man w.e.f. 25.04.2014 and adjusted in-situ on availability of clear vacancy and being senior to the applicant. The applicant has also been promoted w.e.f. 25.04.2014 and due to non availability of vacancy the applicant has been promoted to 151 FWC (7015 EME Bn.) Srinagar. Thus, the order promoting respondent no.6 in situ and transferring the applicant is legally valid and justified.
11. Arguments advanced by learned counsel for the parties were heard, when learned counsel for the applicant reiterated the facts and grounds taken in the OA and the replication filed by him.
12. Learned counsel for the respondents stated that it was very clear from the documents on record that respondent no.6 was senior to the applicant, and hence, the claim in the OA for in situ promotion based on the applicants contention that he himself was senior to the respondent no.6 was belied.
13. We have given our careful consideration to the matter. From the material on record it is evident that seniority of applicant in 626 EME Bn. is w.e.f. 25.06.1984. This was confirmed to the applicant vide letter dated 13.09.2014 (Annexure A-6). On the other hand, respondent no.6 is seen to have joined as TCM 301 Station Workshop EME on 07.04.1980 and was moved to 313 Station Workshop EME on 11.06.1992. 313 Station Workshop was merged with 626 EME Bn. while 301 Station Workshop was disbanded. Effectively therefore, the parent unit of respondent no.6 became 626 EME Bn. from the beginning of his service in 1980 and he has to rank senior to the applicant who came to 626 EME Bn. in 1984. In view of this position, respondent no.6 had a preferential claim to in situ promotion as Chargemen in 626 EME Bn. There being only one vacancy of Chargemen in this Unit, respondent no.6 has rightfully got his promotion and posting in 626 EME Bn. and the applicant had to be posted elsewhere on his promotion as Chargemen.
14. We therefore, conclude that the position of respondent no.6 in the seniority of TCM being above that of the applicant is in order and there is no merit in the claim of the applicant for quashing the promotion-cum-posting order of respondent no.6 issued on 21.07.2014. OA is accordingly rejected.
(RAJWANT SANDHU) MEMBER (A) (JUSTICE L.N. MITTAL) MEMBER (J) Place: Chandigarh.
Dated: 30.09.2016.
rishi 1 O.A No.061/00005/2015