Central Administrative Tribunal - Allahabad
Arun Kumar vs Union Of India on 1 October, 2024
O.A./583/2009
(Reserved on 19.09.2024)
Central Administrative Tribunal, Allahabad
*****
Original Application No.583 of 2009
st
Pronounced on this the 01 Day of October, 2024.
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Arun Kumar, employed as Sr. DEO in Ordnance Factory, Kanpur aged
42 yrs. S/o Late BD Pandey, R/o 42/07, Vijay Nagar, Kanpur -208005
...........Applicant
By Advocate: Shri N.P. Singh
Versus
1. Union of India, Through The Secretary, Ministry of Defence,
Department of defence Production & Supplies, (D-Fys-II), South
Block New Delhi.
2. The Chairman, Ordnance Factory Board, 10-A, SK Bose Road,
Kolkata-700001.
3. The Sr. General Manager, Ordnance Factory, Kalpi Road
Kanpur-208009.
4. Ramesh Kumar Sharma employed as Chargeman-II (Tech) in
Ordnance Factory, Kanpur 4482 EWS Awash Vikash III Panki
Kalyanpur Road, Kanpur (U.P.).
...Respondents
By Advocate: Shri Krishna Kumar Ojha
ORDER
By Hon'ble Mr. Mohan Pyare, Member (A) Present Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
"i) To issue a Writ, order or direction in the nature of certiorari quashing the impugned order dated 26.04.2008 (Annexure-A-1 to the Compilation No.1).
ii) To issue a writ, order or direction in nature of mandamus directing the respondent No.3 to grant promotion to the Digitally MADHU signed by KUMARI MADHU Page 1 of 21 KUMARI O.A./583/2009 applicant from the same date from which his junior/juniors (i.e. the Respondent No.4) have been promoted with all consequential benefits including payment of arrears etc.
iii) To issue any other order or direction as this Hon'ble court may deem fit and proper in the circumstances of the case.
iv) To award costs to the applicant.
v) To issue a writ, order or direction in the nature of
certiorari quashing the order no.1717/MSC/CS dated 28.11.2008 (Annexure A 3) Passed by the respondents."
2. The brief facts of this case as narrated in the O.A. are that the applicant was initially appointed on the post of LDC w.e.f. 04.09.1989 under NIEs cadre from IES cadre i.e. from Labour (Unskilled) in the grade of Rs. 950-1500 (Revised to Rs. 3050-4000 w.e.f 01.01.1996). Subsequently, the applicant was appointed as Data Entry Operator/DEO on transfer of post in accordance with the existing provisions of SRO-14E w.e.f. 11.03.1996 in the pay scale of Rs.1150-1500. Thereafter, the applicant was promoted to the post of Sr. Data Entry Operator in the pay scale of Rs. 1350-2200 vide order dated 28.05.2004 w.e.f. 28.05.2004 itself. The Government in exercise of the powers conferred by the proviso to Article 309, made the rules to amend the Indian Ordnance Factories Group 'C' Supervisory and non gazetted cadre (Recruitment and Condition of Service) Rules 1989. The said amendment was notified vide SRO No. 101 dated 23.05.1994. Government of India, Ministry of Defence/MOD vide their letter No. 11(1)/2002/D(civ-I) dt. 20.05.2003 and directed all the factories that the dovetailed seniority between Master Craftsman (MC) and Highly Skilled (HS) be prepared. The applicant was aggrieved with the fact that the respondents never prepared a Inter-Se-Seniority list between Master Craftsman (MC)/ Highly Skilled (HS) and Sr. Data Entry Operators (Sr. DEO) and he moved representation dated 27.09.2008 against it Digitally MADHU signed by KUMARI MADHU Page 2 of 21 KUMARI O.A./583/2009 which was rejected by the respondents. Then the applicant sought certain information under RTI Act, 2005 in this connection. In the impugned letter 28.11.2008, Respondent no.3 mentioned that the case of the applicant is not covered under the existing rules as there is no quota prescribed.
3. We have heard learned counsel appearing for the parties.
4. Submission of learned counsel for the applicant is that Respondent No. 3 i.e. Sr. General Manager, Ordnance Factory, Kanpur is not following the laid down rules for preparation of Seniority/Inter-Se-Seniority for which the Rules are available. Government of India vide their OM No. 9-11/55-RPS, dated 22.12.1959, DOP&T OM No. 20019/2/83-Est(D) dt. 10.09.1985 and 2011/1/88-Est(D) dt. 12.12.1988 have laid down the General Principles for determining of Inter-Se-Seniority of promotees from different feeder Grades. But the Respondent No. 3 (i.e. Sr. General Manager, Ordnance Factory, Kanpur) never cared to follow above rules/Instructions, while preparing the Inter-Se-Seniority and promoted the Sr. Data Entry Operator/Sr. DEO on the next higher post of Chargeman Grade- II(Tech). Learned counsel for the applicant draws attention to the reply given by the respondents to the information sought by the applicant under RTI Act, 2005 which is tabulated below:
Applicant's application dated Reply vide 09.08.2008 under which RTI/OFC/2008-009 dt.
question 05.09.2008 of Respondent
raised in RTI. Act. No. 3 i.e Sr. General
Manager.
A(i) Please clarify as to whether (A) (i) बिन्द ु के सन्दर्भ में
DEO or Sr. DEO is a Feeder सचि
ू त किया जाता है कि
Grade to CM- II(Tech). एस०आर०ओ० सं० 101
Circulated vide OFB Letter
No. 419/IV/A/A DT.
25/08/1994 के अनस ु ार केवल
Sr.DEO ही कार्यवेक्षक ।।/ तक०
की फीडर ग्रेड है . DEO नहीं है ।
(ii). Whether the Instructions (ii) बिन्द ु के सन्दर्भ में सचि
ू त
given in Para 3 of OFB Letter किया जाता है कि सरकारी
No. आदे शों को ध्यान में रखते हुए ही
100/Misc/Policy/A/NG(Vol-II) Inter Se Seniority बनाई जाती
Digitally
MADHU signed by
KUMARI MADHU Page 3 of 21
KUMARI
O.A./583/2009
dated 30.10.2006 & DOP&T है । केवल अति कुशल ही
OM No. 200192/2/83-Estt(D) सामान्य जोन के विचार में आये
dt. 10.09.1985 & DOPT OM है । मास्टर काफ्टस मैन
No. 20011/1/88-Estt(D) dt. सम्भरक पद नहीं है । Sr.DEO
सामान्य जोन में विचार के बाहर
12.12.1988 were taken into
रहे ।
consideration while preparing
Inter- Se- Seniority of HS/MC
& Sr. DEO.
(iii) What the other norms (iii) बिन्द ु के सन्दर्भ में सचि
ू त
followed for preparation of किया जाता है कि बिन्द ु संख्या
dovetailed seniority of HS/MC (ii) में सन्दर्भित सरकारी आदे शों
& Sr. DEO. के अलावा वरीयता के लिए कोई
अन्य मापदण्ड नहीं है ।
(iv) What is the Seniority (iv) बिन्द ु के सन्दर्भ में सचि
ू त
position of the applicant in the सचिू त किया जाता है कि प्रार्थी
Dovetailed Seniority list which द्वारा लिखे गये निर्माणी आदे श
was given effect while effecting में केवल 06/07/94 तक के ही
अति कुशल की ही पदोन्नति की
promotions to the Grade of
गयी है जबकि प्रार्थी दिनांक
CM-II(Tech) as published Vide 28/05/2004 का Sr.DEO है ।
F.O. Pt-Il No. 342 dt. अतः प्रार्थी सामान्य जोन के
26.04.2008. बाहर था।
5. Learned counsel for the applicant argues that from the above table it is apparent that on one hand the Respondent No. 3 is stating that they are following guidelines enumerated in the OM dt. 22.12.1959, OM dt.10.09.1985 & OM dt. 12.12.1988 on the other hand they are deviating from the General Principles. It is further submitted that Respondent No. 3(i.e. Sr. General Manager/Ordnance Factory,Kanpur) in their reply dt. 28.11.2008 has mentioned that the case of the applicant is not covered under the existing rules as there is no quota prescribed. But on the other hand they are unable to disclose as to what rules are applicable in the matter of the applicant. The responsibility of fixing quota and framing rules is the responsibility of the employer. In this connection the Hon'ble Supreme Court while upholding the judgement of Hon'ble High Court, Andhra Pradesh in A.P. COOPERATIVE OIL SEEDS GROWERS FEDERATION LTD.
HYDERABAD, ANDHRA PRADESH V. D. ACHYUTA RAO & ORS [2007] INSC 282 (15 March 2007) held that where the promotions are not granted in accordance with the rules or fair and reasonable norms laid down for the purpose, and the promotion are at best fortuitous, such an uncertain event cannot be made the basis for Digitally MADHU signed by KUMARI MADHU Page 4 of 21 KUMARI O.A./583/2009 determining seniority which is a valuable right of an employee. The Hon'ble Supreme Court has agreed with the norms discussed in the above judgement of Hon'ble High Court. The details of norms discussed are as under:
"(a) The principle adopted for fixing the seniority cadre- wise is on the basis of date of joining of the employee in the previous immediate lower cadre.
(b) In the case of employees, where ranking was prescribed during the recruitment, the same ranking is maintained for the seniority in the present cadre.
(c) Wherever employees from various designations have been promoted to a common single care, seniority is fixed, based on the difference in the pay scales of these various designations i.e. the designation carrying higher pay scale is made senior.
(d) Wherever the date of joining is same, the date of birth is taken into account i.e., the employee with more age is placed as senior.
(e) This seniority list is fixed for the regular/permanent employees only.
(f) This seniority list is subjected to the final settlement of the disciplinary cases/court cases (pertaining to promotions only or these having a bearing on seniority only) pending, if any, against any employee."
6. It is further submitted by the applicant's counsel that where there does not exist any rule for determination of Inter-Se-Seniority and in absence of any rule the guidelines circulated under MHA OM dt. 22.12.1959 should be made applicable. In this connection the Hon'ble Supreme Court in the case of R.K. MOBISANA SINGH v. KH. TEMBA SINGH & ORS. [2007] INSC 1267 (12 December 2007) held in para 27 of the judgement as under:
"27. However, admittedly there does not exist any rule for determination of inter se seniority.
They were governed by some office memorandums. An Office Memorandum was issued on 22.12.1959 providing for general principles for determination of seniority in the general services wherein inter alia it was stated;
5. Promotees: (i) The relative seniority of persons promoted to the various grades shall be determined in the order of their selection for such promotions;
Provided that where persons recruited initially on temporary basis are confirmed subsequently in an order different from the order of merit Digitally MADHU signed by KUMARI MADHU Page 5 of 21 KUMARI O.A./583/2009 indicated at the time of their promotion, seniority shall follow the order of confirmation and not the original order of merit.
(ii) Where promotion to a grade are made from more than one grade the eligible persons shall be arranged in separate lists in the order of their relative seniority in their respective grades. Thereafter, the Departmental Promotion Committee shall select the persons for promotion from each list upon the prescribed quota and arrange all the candidates selected from different lists in a consolidated order of merit which will determine the seniority of the persons on promotion to the higher grade.
Note: If separate quotas for promotion have not already been prescribed in relevant recruitment rules, the Ministries/Departments may do so now, in consultation with the Commission wherever necessary.
6. Relative Seniority of Direct: Recruits and promotees. The relative seniority of direct recruits and of promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quotas of vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules.
28. The legal principles governing determination of inter se seniority is no longer res-integra. The question came up for consideration before a Constitution Bench of this Court in the Direct recruit (supra) wherein the following criteria were laid down; (A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.
The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted. (C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly.
(D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down. (F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule.
Digitally MADHU signed by KUMARI MADHU Page 6 of 21 KUMARI O.A./583/2009 (H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative."
7. Learned counsel for the applicant states that the Hon'ble Supreme Court in para 29 of the judgement referred to above further held that :
29. Inter se seniority between the parties keeping in view the peculiar fact situation obtaining herein is required to be considered. Before applying the principles laid down therein to the fact of this case, we may notice a few other decisions of this Court.
30. In Suraj Prakash Gupta Vs State of J& K & Ors. [(2000) 7 SCC 561], the Rule which was applicable therein was as under:-
53. Then comes the rule of seniority. Seniority is to be determined by the date of first appointment to such service, class or category or grade. It reads as follows:
24. Seniority (1) The seniority of a person who is subject to these Rules has reference to the service, class, category and grade with reference to which the question has arisen. Such seniority shall be determined by the date of first appointment to such service, class, category or grade, as the case may be.
Note 1. Interpretation The words date of first appointment occurring in the above Rule will mean the date of first substantive appointment, meaning thereby the date of permanent appointment or the date of first appointment on probation on a clear vacancy, confirmation in the latter case being subject to good work and conduct and/or passing of any examination or examinations and/or tests:
Provided that the inter se seniority of two or more persons appointed to the same service, class, category or grade simultaneously, will, notwithstanding the fact that they may assume the duties of their appointments on different dates by reason of being posted to different stations, be determined:
(a) in the case of those promoted by their relative seniority in the lower service, class, category or grade;
(b) in the case of those recruited direct (except those who do not join their duties when vacancies are offered to them) according to the positions attained by and assigned to them in order of merit at the time of competitive examinations or on the basis of merit and ability and physical fitness etc., in case no such examination is held for the purpose of making selections;
(c) as between those promoted and recruited direct, by the order in which appointments have to be allocated for promotion and direct recruitment as prescribed by the Rules.
Digitally MADHU signed by KUMARI MADHU Page 7 of 21 KUMARI O.A./583/2009 Note. - * * * It has to be noticed that the interpretation clause below Rule 24 is very wide and under that provision, seniority of a promotee depends on the date of the commencement of probation on a clear vacancy. Probation can be commenced in the case of a person promoted or recruited by transfer from the date of existence of a clear vacancy in the promotee/transfer quota and depending upon his eligibility, suitability based on ACRs. Having regard to the said Rule in mind this Court surveyed the precedents one way or the other to hold;
8. It is further argued on behalf of the applicant that if there exists no specific quota/ratio, the employer should frame rules and in the absence of any such rule, the Guidelines given in the OM dt. 22.12.1959 be followed. In the case of applicant, Respondent No. 2 & 3 failed to provide a specific quota/ratio. However the Respondent No. 2 i.e. Ordnance Factory Board, Kolkata/OFB has issued a substitute Rule vide their OFB Letter No. 100/Misc/Policy/A/NG(Vol.II) dt. 30.10.2006 wherein in para 3 it was directed that Inter-Se-Seniority between HS/MC and Sr. DEO will be determined on the basis of DOP&T OM No. 20019/2/83-Estt(D) dt. 10.09.1985 and OM No. 20011/1/88-Estt(D) dt. 12.12.1988. Respondent No. 3 has deviated from the above rules. In the above case of RK Mobisana Singh V. KH Temba Singh & Ors., [2007] INSC 1267 (12 December 2007) the Hon' ble Supreme Court further held that "If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down" and in such circumstances the General Principles laid down in OM dt. 22.12.1959 read with OM No. 20019/2/83-Estt(D) dt. 10.09.1985 and OM No. 20011/1/88-Estt(D) dt. 12.12.1988 should be made applicable. Learned counsel for the applicant contends that the applicant is holding the post of Sr. Data Entry Operator w.e.f. 28.05.2004 and he is entitled for seniority/Inter-Se-Seniority and promotion to the post of Chargeman II(Tech) w.e.f. 26.04.2008. But the Respondent No 3 (i.e. Sr. General Manager, Ordnance Factory, Kanpur) considered and promoted those Master Digitally MADHU signed by KUMARI MADHU Page 8 of 21 KUMARI O.A./583/2009 Craftsmans, who are Juniors to the Applicant, including the Respondent No. 4 and made promotion order vide FO Pt-II No. 342 dt 26.04.2008. It is submitted that the applicant is entitled to get his seniority reckoned from the initial date of his appointment on the post of LDC (i.e. the post which he was holding against the permanent/substantive post of his first appointment in cadre/category and as such his seniority should be reckon w.e.f. 04.09.1989 in the light of Hon'ble Supreme Court judgement in RK Mobisana Singh V. KH Temba Singh & Ors. [2007] INSC 1267 (12 December 2007). Learned counsel for the applicant draws the Tribunal's attention towards Hon'ble Supreme Court's judgement in V. SIVA KUMAR & ORS. V. SECRETARY, MINISTRY OF DEFENCE & ORS. [2008] INSC 26 (8 January 2008) wherein Hon'ble Supreme Court held that any deviation in following the rules in its true spirit will lead to the consequential benefits in terms of these principles retrospectively. Thus, it is argued that the action of the Respondent No. 3 (i.e. Sr. General Manager, Ordnance Factory, Kanpur) is discriminatory in nature inasmuch as while preparing the Seniority/Inter-Se-Seniority in respect of HS/MCM and Sr. DEO for promotion to Chargeman-II(Tech), he opted for a different interpretation of rules which is contrary to the action taken by other sister Ordnance Factories functioning under the Ordnance Factories Board, Kolkata. In this connection a clarification letter No. 2641/PTS/LB dt. 01.12.2008 addressed to General Manager, Ordnance Equipment Factory, Kanpur (Both Sister Factories) is annexed as Annexure A-10 of the O.A.. It is further submitted that the Ordnance Factories Board, Kolkata (i.e. Respondent No. 2) to whom the matter under RTI, Act-2005 was referred for clarification has said that if any deviation is committed by any unit the matter should be taken up with the concerned administration.
9. Submission of learned counsel for the respondents is that The Hon'ble Supreme Court in the case of Class II Director Recruits Engineering Officers' Association Vs. State of Maharashtra held that "once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment Digitally MADHU signed by KUMARI MADHU Page 9 of 21 KUMARI O.A./583/2009 and not according to the date of his confirmation." As per MHA Office Memo dated 22.12.1959 "Where promotions to a grade are made from more than one grade, the eligible persons shall be arranged in separate lists in the order of their relative seniority in their respective grades. Hereafter, the Departmental Promotion Committee shall select persons for promotion from each list upto the prescribed quota and arrange all the candidates selected from different lists in a consolidated order of merit which will determine the seniority of the persons on promotion to the higher grade." It is worthwhile to mention here that no such quota has been prescribed in recruitment rules viz. SRO No.101 dated 23.05.1994 for promotion to Chargeman Grade II (T/Mech). As such in order to give opportunity to the employees of all feeder grades a combined Seniority list of these feeder grades is prepared reckoning their seniority from the date of their joining the feeder post of HS and Sr. DEO. The instructions as issued vide MHA Office Memo dated 22.12.1959 have been duly followed. Accordingly relative seniority was fixed taking into account the date of joining the feeder grades. Therefore the applicant holding the post of Sr. DEO w.e.f. 28.05.2004 was not considered as the last candidate considered for promotion was holding the post of HS w.e.f. 08.09.1994. It is further submitted that vacancies available for promotion to Chargeman Grade-II (T/Mech) in the year 2008-09 were 40 and as per DOPT Office Memo dated 08.02.2002 the zone of consideration for 40 post is 63 (i.e. 40*1.5+3). As such only 63 candidates were considered for promotion. Since the applicant was very junior in the combined seniority list of both the feeder grades, the applicant did not come even in the zone of consideration. As such the applicant was not considered for promotion and his seniors were promoted to the post of Chargeman Grade-II vide Factory order Pt. II No.342 dated 26.04.2008. Thereafter, the applicant forwarded representation dated 27.09.2008 requesting therein to fix his inter-se-seniority as senior to HS and MC in view of the DoPT Office Memo dated 10.09.1985 and Office Memo dated Digitally MADHU signed by KUMARI MADHU Page 10 of 21 KUMARI O.A./583/2009 12.12.1988. As per Govt. of India, Department of Personnel & Training Office Memo dated 10.09.1985 and Office Memo dated 12.12.1988 :-
"Where promotion to a grade are made from more than one grade, the eligible persons shall be arranged in separate lists in the order of their relative seniority in their respective grades. Thereafter, the Departmental Promotion Committee shall select persons for promotion from each list up to the prescribed quota and arrange all the candidates selected from different lists in a consolidated order of merit which will determine the seniority of the person on promotion to the higher grade.
Note: If separate quotas for promotion have not already been prescribed in the relevant Recruitment Rules the Ministries/Departments may do so now, in consultation with the Commission, wherever necessary.
Classification -Where the posts in the feeder grades are in different scales of pay or even in the identical or equivalent scales of pay, the officers up to the number of vacancies for each feeder grade as per the quota may be selected and interpolated in a combined select list according to the grading. The persons who are assigned the same grading by the DPC should be arranged in the consolidated order of merit with reference to the date arrived at after adding the requisite number of years of qualifying service in the feeder grade to their date of appointment, i.e. with reference to the date from which they became eligible for promotion after rendering the prescribed qualifying service in the feeder grade, maintaining their inter-se-seniority in the parent service/grade. Among the persons in the feeder grades given the same grading, those in the higher scales of pay will rank senior to those in the lower scale of pay."
He states that since no quota has been prescribed in recruitment rules viz SRO No.101 dated 23.05.1994 for promotion to Chargeman Grade-II (T/Mech), all the candidates of feeder grades were placed in a combined seniority list reckoning their seniority from the date of their joining the post of HS and Sr. DEO. Accordingly the applicant was replied to by vide letter dated 28.11.2008. It is also submitted that actually it was directed through Office Memo dated 12.12.1988 that when candidates come under zone of consideration and found eligible by DPC for promotion then only while making combined seniority list the candidates of higher pay will be placed senior. Apart from it the Digitally MADHU signed by KUMARI MADHU Page 11 of 21 KUMARI O.A./583/2009 question of preparing inter-se- seniority does not arise as no candidate from the seniority list of Sr. DEO was considered for the promotion to the post of Chargeman Grade-II (T/Mech). As such the claim of the applicant is liable to be rejected.
10. Learned counsel for the respondents further argues that, in Air Vice Marshal S.L. Chhabra VSM (Retd) Vs. Union of India 1993(3)SLJ, 49 (SC); 1993(2) SLR 805 it was held that "It is well known that a Selection Board, while considering the suitability of an officer for promotion to a higher post or rank takes into consideration several factors and it is not solely based on the appraisal report of the Controlling Officer. It was neither possible for the High Court, nor is possible for the Supreme Court to act as a Court of Appeal against the decision of the Selection Board, which has been vested with the power of selection of an officer for being promoted to the rank of Air Vice Marshal." That, in N.S. Kulkarni Vs. State of Karnataka (1985)3 SLR 351 Karn, it was held that "Civil Court or High Court cannot direct promotion of an employee. It can only issue a direction for consideration of the case of the employee."
11. In rejoinder, learned counsel for the applicant states that the Ordnance Factory Board vide their letter No.100/Misc/Policy/A/NG (Vol.-II) dated 30.10.2006 has clearly mentioned that in light of the OFB instruction dated 12.07.2003 the seniority of MCM will be counted from the date of holding the post of HS for the purpose of promotion to Chargeman-II (Tech). Further in para 3 of the above OFB letter it is clarified that inter-se-seniority HS/MCM and Sr. DEO will be determined on the basis of DoPT OM No. 20019/2/83-Estt (D) dt. 10.09.1985 and OM No. 20011/1/88-Estt (D) dated 12.12.1988. He states that from the above fact it is apparent that the above Ministry of Defence letter has been acted upon and taken into consideration while effecting the next promotion to the post of Chargeman-II (Tech). From the inter grade ratio provided by the Ministry of Defence, the total grades of eligible persons from HS/MCM Digitally MADHU signed by KUMARI MADHU Page 12 of 21 KUMARI O.A./583/2009 comes to 80% (55%+25%). It is clear from the above that the rest 20% is required to be filled from other eligible grade i.e. Sr. DEO appearing as one of the three feeder grades as per the Recruitment Rules in respect of appointment and promotion to the post of Chargeman Grade -II which has been notified vide letter dated 04.05.1989. From perusal of the column-12 of the SRO which describes the method for promotion to the post of Chargeman Grade-II Technical, the feeder cadre for promotion in Chargeman Grade-II is HS Grade-I with three years regular service and from HS Grade-II with six years regular service. After issuance of the said SRO, an SRO dated 23.05.1994 has been issued from the Ministry of Defence including SRO 101. By the aforesaid SRO, the Indian Ordnance Factories Group 'C' Supervisory and Non-gazetted Cadre (Recruitment and Condition of Service) Rules 1989 has been amended in the following manner:
(1) These rules may be called the Indian Ordnance Factories Group C Supervisory & Non-Gazetted Cadre (Recruitment and Conditions of Service) Amendment Rules 1994.
(2) They shall come into force on the date of their publication in the Official Gazette.
In the Indian Ordnance Factories Group C Supervisory and Non- Gazetted Cadre (Recruitment and Conditions of Service) Rules 1989:-
(i) after rule 7, for the words, "SRO FOR SUPERVISORY AND NON- GAZETTED CADRE IN ORDNANCE FACTORIES, MINISTRY OF DEFENCE, DEPARTMENT OF DEFENCE PRODUCTION, the word "schedule" shall be substituted,
(ii) In the Schedule, against the post of Chargeman Grade-II (Tech), under Column 12, for the existing entries the following shall be substituted, namely:-
"By promotion"
Promotion from Sr. Data Entry Operator with 3 years of service or Draughtsman or equivalent in the scale of Rs. 1200-2040 with 3 years service and promotion from H.S. Gde.I with 3 years of regular service failing which from H.S. Gde. II with 6 years regular service in respective category.
"By Transfer on passing trade test.
Digitally MADHU signed by KUMARI MADHU Page 13 of 21 KUMARI O.A./583/2009 By transfer Inter-se of Draughtsman in scale of Rs. 1400-2300 and Supervisor (Technical) or equivalent in scale of Rs. 1400-23 in respective category."
He submits that the principal rules were published in the Gazette of India vide SRO 13E dated 04.05.1989 and from bare perusal of clause 2 (ii) under Column 12 Sr. Data Entry Operator with 3 years of service have been included for promotion to the post of Chargeman-II Technical as feeder cadre. By S.R.O.-13(E) dated 04.05.1989 and subsequent S.R.0.-101 dated 23.05.1994 by way of introducing SRO 101, this fact has been established on the face of records that the feeder cadre for the post of Chargeman Grade-II was from Sr. Data Entry Operator and HS Grade-1 and HS Grade-2. Ignoring the aforesaid rule position which has been framed by the Ministry of Recruitment Rules to the post of Chargeman Grade-II in pay scale of Rs. 5000-8000, the respondents organization has passed illegal and arbitrary order dated 26.04.2008 by the Head of Subject NG Group-C Promotion to the Post of CM-II (Tech), from the cadre of MCM which was not the feeder cadre for the promotion to Chargeman-II as per SRO 13E and Subsequent SRO 101, therefore, the instant promotion order is liable to be set aside, which is contrary to the spirit of recruitment rules. Thus, he argues that the respondents have wrongly contended that DoPT instructions dated 10.09.1985 and 12.12.1988 are not applicable in the case of the applicant.
12. Amongst both the feeder grade there is no quota prescribed in Existing SRO-13E dt. 04.05.1989. In this connection para 1. of the DOPT OM No. 200019/2/83-Estt.D dt. 10.09.1985 is relevant which reads as follows:" As the Ministries/Departments of the Government of India are aware, the general principles of seniority for civil services/posts have been laid down in the MHA OM No. 9/11/65- RPS dt. 22.12.59. According to principle 5(ii), where promotions to a grade are made from more than one grade and quotas have been laid down for each feeder grade, the eligible persons are to be arranged in separate lists in the order of their relative seniority in their respective grades. Thereafter, the Digitally MADHU signed by KUMARI MADHU Page 14 of 21 KUMARI O.A./583/2009 Departmental Promotion Committee is to select persons for promotion from each list upto the prescribed quotas and arrange all the candidates selected from different lists in a consolidated order of merit which will determine the seniority of the persons on promotion to the higher grade. The 'NOTE' given below that principle gives a direction to the Ministries/Departments to the effect that if quotas for promotion have not already been prescribed in the recruitment rules, they may do so, in with the UPSC where necessary. Despite this clear direction, it has come to the notice of this department that in a large number of cases separate quotas for the feeder grades have not been prescribed with the result the difficulties arises preparation of in a panel the of promotees. It is, therefore, necessary to initiate action to review the existing recruitment rules with a view to considering the feasibility of laying down quotas for the feeder grades, in consultation with this department and the Union Public Service Commission where necessary."
However it is apparent that despite instruction and guidelines issued Respondent No. 3 i.e. to Sr. General Manager, Ordnance Factory, Kanpur who failed to prescribe quota and in absence of quota as alleged, failed to follow the instruction of DOP&T issued on dated 10.09.1985 and 12.12.1988 and Ordnance Factory Board, Kolkata directions to follow the same in the matter of promotion of HS/MCM and Sr. DEO as per provisions of SRO-13E dt. 04.05.1989. If the alleged facts narrated by Respondent No. 3 in the Counter Affidavit have been taken as correct, he has to fix quota before proceeding further for effecting promotion to the post of Chargeman-II (Tech). It further submitted that as per is the alleged contention of the Respondents No. 3 when there is no quota prescribed for each feeder grade i.e. HC/MCM and Sr. DEO, giving 100% quota to one stream/feeder grade i.e. HC/MCM amounts to discrimination in the matter of promotion to the higher post of Chargeman-II (Tech). As per General Principle 5(ii) of letter dt. 22.12.1959 a reference of which is made in DOPT letter dt. 10.09.1985 says that "where promotion to a grade Digitally MADHU signed by KUMARI MADHU Page 15 of 21 KUMARI O.A./583/2009 are made from more than one grade, the eligible persons shall be arranged in separate lists in the order of their relative seniority in their respective grades." the above rule has further elaborated by giving an example in OM No. 20020/4/89- Estt (D) dt. 07.02.2009 in Para 1 of the above letter which relates to preparation of Inter-se-seniority of promotees from more than one feeder grades. He avers that the case laws cited by the respondents does not come for their rescue because in the instant case, the applicant has challenged the eligibility criteria of promotion vide order dated 26.04.2008 in which the feeder cadre of chargeman (T/M) is not as per SRO 13E and subsequent notification dated 23.05.1994 introducing new SRO 101.
13. Learned counsel for the applicant has also asserted that that the identical controversy has been raised before the Hon'ble Supreme Court by one Dr. Rajendra Singh Vs. State of Punjab in Appeal (Civil) No.2720 of 2001 and the same has been decided by the Hon'ble Apex court vide order dated 11.04.2001 and while passing the aforesaid order the Hon'ble Apex Court observed as mentioned below:-
"The settled position of law is that no government order, notification or circular can be a substitute of the statutory rules framed with the authority of law. Following any other course would be disastrous inasmuch as it would deprive the security of tenure and right of equality conferred upon the civil servants under the constitutional scheme. It would be negating the so far accepted service jurisprudence. We are of the firm view that the High Court was not justified in observing that even without the amendment of the rules, the Class II of the service can be treated as Class I only by way of notification. Following such a course in effect amounts to amending the rules by a government order and ignoring the mandate of article 309 of the constitution. As respondent no.3 was not eligible for consideration to the post of Deputy Director, Health Services, the Departmental Promotion Committee committed a mistake in recommending him. Consequent promotion of respondent no.3 on the basis of recommendation of the Departmental Promotion Committee being contrary to law is liable to be set aside"
The aforesaid case has been filed against the executive order passed by the respondents by which they have implemented promotion to those individuals whose cadre has been merged and new feeder cadre has come into existence and aforesaid all the Digitally MADHU signed by KUMARI MADHU Page 16 of 21 KUMARI O.A./583/2009 exercise has been done as per circular dated 20.05.2003(S.A.1) without making any amendment in statutory rules. An identical controversy has been decided by the Principal Bench, C.A.T. New Delhi vide order dated 27.02.2015 in O.A. No.2430 of 2014 Omprakash and 07 others Vs. UOI & others and this matter is related to promotion from the post of Highly Skilled-1(HS) to the post of Master Craftsman (MCM) and it has been argued by respondents before the Principal bench and same has been observed in para-5 of the judgment, the same is quoted below:-
"5. We have heard the learned counsel for both parties. Learned counsel for the applicants Shri Yogesh Sharma contended that once the promotions have been given on the basis of Recruitment Rules, subsequent Annexures A/1, A/2 and A/3 whereby certain provisions are sought to be introduced are contrary to the Recruitment Rules. Learned counsel for the respondents Shri Rajinder Khatter, admitted that the said communications which were issued are contrary to the existing Recruitment Rules, but are with a view to supplement the Rules ibid. We notice that the subsequent communications by way of SROs are not supplementary but are rather contrary to the existing Recruitment Rules."
He submits that against the aforesaid order dated 27.02.2015 passed in OA No.2430 of 2015, the Union of India has preferred review application and same has been turned down by order dated 03.07.2015 and against the aforesaid order the Union of India has preferred the Writ Petition No.8642 of 2015 and CM No.18864 of 2015 and 5998 of 2019 Union of India Vs. Shri Om Prakash and others and aforesaid connected all the writ petition has been dismissed by the Hon'ble Delhi High Court vide its order dated 25.04.2019 by the Division bench. The controversy involved in present O.A. is identical in nature and aforementioned facts has already been adjudicated before Principal Bench and High Court and Hon'ble Apex Court. He further avers that the Government of India, Ministry of Defence, Department of Defence Production has issued an office memorandum no.1(5)/2021/OF/ DP(Plg-V)/ 02 dated 24.09.2021. By the aforesaid memorandum the dissolution of Ordnance Factory Board and transfer of employees (Group- A,B,&C) of Ordnance Factory Board to new Defence Public Sector, Directorate of Ordnance (Coordination & Service) Digitally MADHU signed by KUMARI MADHU Page 17 of 21 KUMARI O.A./583/2009 as per para-3 of the aforesaid memorandum the Government has decided that all the employees of OFB (Group A,B & C) belonging to production unit and also the identified non-production unit as per structure set out in Annexure-A to the new DPSUS undertakings on term of foreign service without any deputation allowance (deemed deputation) initially for a period of two years from the appointment date, in accordance with Rule 37-A of the Central Civil Service (Pension) Rules, 1972 the cut-off date given in the aforesaid memorandum is 01.10.2021 from the aforesaid cut-off date the two years is going to be completed in the applicants case is 01.10.2023 meaning thereby the previous structure and promotional avenues will be dissolved and they will be merged in new DPSUs.
14. Per contra, learned counsel for the respondents states that MOD letter No. 11(1)/2002/D(Civ.1) dt: 20/05/2003 has referred that the post of Master Craftsman shall continue to be considered as Highly Skilled Grade for the purpose of promotion to the post of Chargeman Gr-Il. As per SRO No. 101 dt 23/05/1994 the seniority for promotion to the post of Chargeman Grade-II (T/Mech.) was reckoned from the date of holding the post in feeder grade only i.e. date of holding the post of Sr. Data Entry Operator and Highly Skilled as per recommendation of DPC which considered the eligible individuals in feeder grade as per normal zone of consideration. As the criteria for consideration to the post of Chargeman Grade-II was considered from date of holding feeder grade i.e. Sr.DEO & Highly Skilled at that time, applicant was holding post of Sr.DEO in feeder grade w.e.f. 28/05/2004 who was not considered even as the last candidate in zone of consideration for promotion to the post of CM(T/Mech). It is further submitted that as per SRO 13(E) dated 04-05-89, HS-1 and HS-II are feeder grades for promotion to the post of Chargeman Gr. II (Tech) but subsequently the posts of Highly Skilled-I and Highly Skilled-II were merged and known as Highly Skilled. In the note 8 of SRO 13(E) it has also been mentioned that promotion indicated in Col. 12 of this schedule will normally be from feeder(s) grade Digitally MADHU signed by KUMARI MADHU Page 18 of 21 KUMARI O.A./583/2009 indicated in Col. 12 but where two or more feeder grades are declared to be 'allied grades' by the General Manager of the Factory or Ordnance Factory Board, selection or promotion will be made from common seniority list of eligible persons in the allied grades. As such Highly Skilled & Master Crafts Man were declared as feeder grades of Chargeman Gr. II(Tech) vide Ordnance Factory Board letter dated 12-07-03 (page 4 point no.
(d)) issued in the light of Ministry of Defence letter no.11(1)/2002/D(Civ.I) dated 20-05-03. All the candidates have been promoted in accordance with rules. As such the applicant is not entitled for any relief from this Tribunal.
15. He argues that a review application was also filed against the Hon'ble CAT (Principal Bench), New Delhi order dated 27/02/2015 and same was turned down vide order dated 03/07/2015. Later, a WP No. 8642/2015-UOI & Ors Vs Om Prakash & Ors was also filed before the Hon'ble High Court of Delhi Challenging the Hon'ble CAT (Principal Bench) New Delhi order dated 27/02/2015 in OA No. 2430/2014 which was also dismissed. However, the implementation of the order of the Principal Bench has been kept in abeyance till disposal of WP No. 9800/2020. Therefore, the matter is sub-judice at present. It may also be noted that as per records of NII Section of Directorate the said policy of this department has not been agitated yet before the Hon'ble Apex Court. Meanwhile, through a circular it was also intimated by this Directorate to all factories to continue the promotion from HS-1/MCM to CM (Tech) as per extant policy. However, the same has also been challenged by some employees by filing a Civil Misc. Application in WP No. 9800/2020 before the Hon'ble High Court of Delhi. Upon hearing the said Misc Application on 03/02/2023 a stay has been imposed on the above said circular of this Directorate till 10/04/2023 with the direction that the department cannot make any promotion till next hearing. Therefore, all the promotions from HS-1/MCM to CM (Tech) have been kept on hold after the order dated 25/04/2019. Thereafter, as per directives of MoD, the Hon'ble CAT (Principal Digitally MADHU signed by KUMARI MADHU Page 19 of 21 KUMARI O.A./583/2009 Bench) order dated 27/02/2015 was implemented only in personam. It is further submitted that referring to the Hon'ble Tribunal (Principal Bench) New Delhi order dated 27/02/2015 in OA No. 2430/2014, some other employees have also filed OA before the Hon'ble CAT (Principal Bench), New Delhi seeking similar benefits. The same was also allowed vide order dated 11/11/2020. However, it was challenged by filing WP No. 9800/2020 before the Hon'ble High Court of Delhi and vide an interim order dated 26/03/2021 of Hon'ble High Court, the order dated 11/11/2020 of Hon'ble CAT (Principal Bench) as the above mentioned stay order is yet to be vacated by the Court. The next date of hearing of the case was scheduled on 29/04/2024. Further as per directives of MoD, the exercise of amendment/revision of Recruitment Rules (RRs) of CM (Tech) has already been taken up incorporating the post of MCM as the only feeder grade/post for promotion to the post of CM (Tech) and the same is currently under process.
16. We have considered the rival submissions of learned counsel appearing for the parties, and gone through the entire documents on record.
17. As per SRO 13(E) dated 04-05-89, HS-1 and HS-II were the feeder grades for promotion to the post of Chargeman Gr. II (Tech) but subsequently the posts of Highly Skilled-I and Highly Skilled-II were merged and known as Highly Skilled. Vide SRO dated 23.05.1994, the Indian Ordnance Factories Group 'C' Supervisory and Non-gazetted Cadre (Recruitment and Condition of Service) Rules 1989 has been amended and Senior DEO was introduced along with Highly Skilled with same terms and conditions as a feeder cadre for the post of Chargeman Gr.II. The MCM were not in the feeder category but were promoted as they were brought in the feeder category by the executive order dated 20.05.2003. As per the observation of the law laid down by the Hon'ble Apex Court in the case of Dr. Rajendra Singh Vs. State of Punjab in Appeal (Civil) No.2720 of 2001 as quoted in para 13 Digitally MADHU signed by KUMARI MADHU Page 20 of 21 KUMARI O.A./583/2009 above no government order, notification or circular can be a substitute of the statutory rules framed with the authority of law. It is a matter of fact that similarly situated employee as the applicant has agitated this matter before the Principal Bench of this Tribunal through O.A./2430/2014 which has been allowed vide order dated 27.02.2015 against which the respondents had also filed review which was dismissed and the Writ filed by the respondents before the Hon'ble High Court against the said order has also been dismissed vide its order dated 25.04.2019 and the order of the CAT Principal Bench has been implemented in personam. The applicant was promoted to the post of Sr. Data Entry Operator in the pay scale of Rs. 1350-2200 vide order dated 28.05.2004 w.e.f. 28.05.2004 itself. Thus, the applicant was eligible to be promoted as Chargeman Gr. II (Tech) after three years of regular service as per SRO 101. Thus, the applicant should have been considered as per his seniority for promotion to the post of Chargeman-II as he belonged to the feeder cadre and the respondents should have issued the promotion order dated 26.04.2008 after duly preparing a list of the eligible candidates including the applicant belonging to the feeder cadre in order of their seniority. In view of the above, the impugned order dated 26.04.2008 is liable to be quashed.
18. Accordingly, the impugned order dated 26.04.2008 is hereby set aside. The respondents are hereby directed to include the applicant in the order of his seniority as an eligible candidate belonging to the feeder cadre while reconsidering the promotion to the post of Chargeman-II for the vacancy year under question and reissue the promotion order within a period of three months from the date of receipt of a certified copy of this order.
19. Thus, the O.A. stands allowed to the above extent. All associated M.A.s also stand disposed of. No order as to costs.
(Mohan Pyare) ( Justice Om Prakash VII)
Member (A) Member (J)
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