Central Administrative Tribunal - Hyderabad
Members Of The Ship Building Centr ... vs M/O Defence on 26 April, 2019
1 OA 897/2013
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH: HYDERABAD
Original Application No. 897/2013
Reserved on: 15.02.2019
Pronounced on: 26.04.2019
Between:
1. Members of the Ship Building Centre Civilian Employees Union,
Registered No. D/1829/2000, rep. by its General Secretary,
E. Srinivasa Rao, S/o. late Ramaswamy, aged 45 years,
Working as Construction Supervisor, O/o. The Project Director,
Ship Building Centre, Visakhapatnam - 530 014.
2. P.V.V.S. Subrahmanyam, S/o. P.V.S. Narayana Rao, aged 36 years,
Occ: Construction Assistant - C, O/o. The Project Director,
Ship Building Centre, Visakhapatnam - 530 014.
... Applicants
And
1. Union of India, Rep. by the Secretary, Ministry of Defence,
Government of India, South Block, New Delhi - 11.
2. The Scientific Advisor to Raksha Mantri and the Secretary,
Department of Defence (Research & Development), DRDO Bhavan,
Rajaji Marg, New Delhi - 105.
3. The Director General,
Head Quarters Advance Technology Vessels Programme (ATVP),
Akanksha Development Enclave, Rao Tula Ram Marg,
Delhi Cantt., New Delhi - 10.
4. The Project Director, Ship Building Centre, Godavari Gate,
Varuna Block, Naval Base, Visakhapatnam - 530 014.
... Respondents
Counsel for the Applicants ... Mr. K.R.K.V. Prasad
Counsel for the Respondents ... Mr. Bhim Singh, Advocate for
Mr. M. Brahma Reddy, Sr. PC for CG
CORAM:
Hon'ble Mr. Justice R. Kantha Rao, Member (Judl)
Hon'ble Mr. B.V. Sudhakar, Member (Admn.)
2 OA 897/2013
ORDER
{As per Hon'ble Mr. B.V. Sudhakar, Member (Admn.) }
2. The OA has been filed for not considering the training period to draw increments and grant of financial up gradation under ACP.
3. First applicant represents the workers of the Ship Building Centre, Vizag. Members of the applicant union have been selected by the respondents organisation for pre-induction apprentice training (Non-designated) as per Presidential orders dated 21.11.1986 and 14.11.1996. The selection for the non- designated apprentice training in North Yard Complex (NYC) (referred to as SBC-Ship Building centre) is governed by the Presidential orders issued on 18.7.1989, 31.5.1990, 24.2.1992, 20.4.1993 and 15.11.1994 along with the respective corrigendum issued from time to time. The pre-induction training for a period of 1/02 years was completed in the non designated trades from 1987 to 1997. As per order dated 18.7.1989, recruited personnel will be absorbed as Highly Skilled -II (HSK-II) and Highly Skilled -I (I) as per existing rules of Naval Dockyard. However, through a corrigendum dated 19.1.1990 it was made clear that the rules stipulated in Min of Defence letters dated 5.11.1971 & 21.11.1986 will be applicable. Recruitment rules were framed on 17.1.2000 by which time applicants put in more than 10 years of service. Applicant union represented on 24.4.2012 and the 2nd applicant on 6.6.2012 to reckon the pre- induction training period for the purpose of pensionable service, seniority, increments and financial up gradation, citing different Govt. orders on the subject. There being stoic silence on behalf of the respondents, the issue was raised by the Applicant union in the Apex committee where in it was informed that there is no provision to provide the relief sought. Hence, the OA. 3 OA 897/2013
4. The contentions of the applicants are that FR 9(6)(a)(i) states that duty includes service rendered as apprentice as well. OM dated 27.10.1990 also stipulates that the training period be treated as duty. DOPT issued orders on 29.3.1993 & 30.8.1994 reaffirming the order to treat training period as duty. Min of Home Affairs has also issued orders dated 22.12.1983, 12.9.1986 & 1.1.2004 extending the benefit of counting training period as qualifying service. Further, DOPT has issued another OM dated 10.2.2000 stipulating that the induction period be treated as eligibility service for promotions and financial up gradation under ACP. By not implementing the OMs cited, members of the applicant Union and the 2nd applicant have been put to monetary loss and also seniority.
5. Respondents oppose the OA by stating that apprenticeship is only a qualification to become eligible to be recruited and the time spent on getting trained prior to getting employed against a regular sanctioned post, cannot be treated as service period. FR 9 (6) (i) is not applicable to the applicants since the pre-induction training under Apprentice Act 1951 is only to gain requisite skills but not a departmental training on a particular trade. DOPT memo dated 5.3.2008 has clarified that the period of departmental training taken prior to 1.1.2004 with stipend would be covered under CCS (Pension) Rules 1972 provided the training period is treated as qualifying service. In the instant case members of the applicant union have undergone training as apprentice and not as Govt. workers. The training given was not departmental training but was meant to impart skills to the apprentice. DOPT memo dated 10.2.2000 cannot be made applicable unless the authorities competent to appoint the Govt. servants to the said grade are empowered to treat the training period as qualifying service. Moreover, service before attaining the age of 18 years cannot be counted as qualifying service. Joining the Dockyard Apprentice School does not mean that 4 OA 897/2013 they have joined a job. Apprentice is not a post but a term used for a trainee. The apprentice training has been given as per provisions of apprentice act 1961. The contract executed while joining the training school stipulates that the applicant shall conduct himself as a trainee and not as a worker. It is just a qualification which would facilitate applying for suitable jobs. Unless they join against a regular post the period of training shall not be considered as qualifying service for ACP, increments etc.
6. Applicants filed a rejoinder wherein they have claimed that the respondents have accepted that the applicants have been given pre- induction training in non designated trades. Applicants have been recruited as per Presidential order and thereafter they have undergone training. Non designated trades would not come under apprentice act 1961. Min. of Defence letter dated 30.11.1977 provides for counting of apprentice service. DOPT OM dated 5.3.2008 is being misinterpreted. Central Govt. which is the competent authority has issued the Presidential order dated 30.11.1977 to count the apprentice training period as qualifying service for pension. Verdict of the Hon'ble High Court of Madras in WP no 21520/2010 in the case of BSNL v U.O.I and in WP no 15509/1998 in Nuclear Power Corporation v P.Ravindran as well as that of the Hon'ble Supreme Court in U.O.I v R. Sarangapani in SLP (C) 346/99 furthers the cause of the applicants. Non designated apprentice shall be appointed as per appendix A of the Presidential order dated 21.11.1986. As per DOPT memo dated 18.7.2001, if recruitment rules treat induction training period as qualified service, then it would apply for regular ACP as well. The Presidential order takes the place of the recruitment rules till the recruitment rules came into vogue in 2000.
5 OA 897/2013
7. Respondents filed an additional reply countering the rejoinder wherein they have asserted that the applicants were imparted pre-induction apprentice training and not pre induction training. The word apprentice has been deliberately omitted by the applicants to misguide the Tribunal. Presidential order gave sanction to employ 93 apprentices at Vizag SBC only after the apprentice training and not from the date of joining as apprentice. For major trades the apprentice ship act 1961 is applicable for non designated trades. There is no provision to consider the request of the applicants as per FR 16 of CCS (Pension) Rules. The competent authority at no stage has treated the apprentice training period as duty. Para 4 of the contract form states that the employer shall offer appointment based on merit in any of the Naval repair organisation. Apprentice is a trainee but not a worker and in support of this assertion respondents quoted the verdicts of labour courts. A similar case filed before the Tribunal in OA 1346/2010 was dismissed was another contention of the respondents.
8. Applicants submitted a rejoinder to the additional reply statement stating that the applicants were appointed based on Presidential sanction vide order dated 21.11.1986 and that they were not trained under apprentice act 1961. Min. of Defence letter clarifying that the Non designated apprenticeship training period has to be considered for pension has not been contested by the respondents. There is no difference between pre-induction and pre - induction apprentice training. The fact that the respondents admitted that they needed trained employees for SBC goes to prove that the applicants were recruited prior to apprentice training. The certificate issued to the applicants is for non designated trades like weapon fitter. The orders of the labour court are not applicable to the 4th respondent organisation as it has been exempted from the ID 6 OA 897/2013 act 1947 vide G.O.I notification dated 7.1.2003. The OA 1346/2010 is not applicable as the facts are different.
9. Heard both the counsel and perused the documents/material papers submitted.
10. The issue is about treating the apprentice ship training as qualifying service for the purpose of ACP, increments and pension. Respondents claim that the applicants are only apprentice who joined the Naval Apprenticeship schools to acquire required skills and that they have to be treated as trainees and not as workers. The training imparted is apprenticeship training and not departmental training which is given after being selected to the post. Applicants are covered by the Apprenticeship Act and the contract they signed at the time of joining the apprentice school affirms this averment. Respondents main contention is that the applicants have been appointed after the training and that orders of DOPT referred to do not apply. The competent authority has not issued any order favouring the applicant. Respondents rely on OA 1346/2010 dismissed by the Tribunal in support of their defence. In contrast, applicants claim that they are not covered by the Apprenticeship Act and that they joined the Naval Apprentice School in non designated trades only after the Presidential order selecting them against clear vacancy. Several DOPT instructions and fundamental rules are in their favour. Applicants have relied on the judgments of the Hon'ble Apex Court and that of the Hon'ble High Court of Madras to put forth their point of view.
11. Against the above background, we have examined the case and our findings are as under.
I) To begin with Applicants were brought on to the roll of the respondents organisation by issue of series of Presidential orders from 1989 to 7 OA 897/2013 1997 with the associated corrigendum. A specimen of such order dated 31.5.1990 is given below:
"The sanction of the President is also herby accorded for induction of 93 apprentices (non designated) through Dockyard Apprentices Schools at Bombay and Vishakpatnam."
The Presidential order has accorded sanction for induction of the applicants. In other words the applicants have been inducted into service the moment they are appointed as per the Presidential Order. Any sanction will be against clear vacancies. The selection and appointment was thus made against clear sanctioned vacancies/posts of North yard Complex vide Presidential orders from 1989 to 1997 with the associated corrigendum. This has not been denied by the respondents anywhere in the reply statement except to state that they have been recruited after the training. The argument of the respondents does not have force since the Presidential order is about induction from the stage of Apprentice.
II) Further, Ministry of Defence letter dated 21.11.1986 makes it explicit that sanction is accorded for annual recruitment of apprentice to different Apprentice schools of the respondents organisation in trades not designated under the apprentice act 1961. The intake of apprentices for designated trades will be in accordance with the Apprentices Act 1961. Paras (f) and (g) of the said order prescribe different educational qualifications for the designated trades and the non designated trades. Appendix A specifies the terms and conditions of recruitment to the non - designated trades. An important one is given hereunder:
"On successful completion of apprenticeship in respect of non -designated trades, the apprentices shall serve anywhere in India for a minimum period of 5 years in appropriate grade depending upon their merit in the passing out in the final examination on the pay scale and allowances admissible from time to time in the grade to which they are appointed."8 OA 897/2013
Implying that the applicants are recruited to serve the respondents organisation subject to coming out successful in the training. Training is thus a departmental training with the proviso that they have to come out successful to be confirmed. Once confirmed on successful completion of the training the period spent on training becomes a part of the service. Such conditions are not uncommon. Further, applicants submitted a sample certificate issued by the Naval Dockyard Apprentice School in the non designated trade of weapon fitter. This is a trade which has utility only to the respondents organisation. Requirements of training and qualifications are very specific to such trades. Thus Non designated trades are those which are designed to induct manpower required for special establishments like the respondents organisation. Designated trades are those which are of universal nature and those trained can be engaged in any Industry and such trades are exclusively covered by the Apprentice ship act 1961. After completion of training in the designated trades certificates are issued by the National council for Vocational Training whereas in respect of non designated trades it is given by the vocational school which is conducting the course, like the respondents organisation. Therefore designated trades are governed by the Apprenticeship act 1961 and for non designated trades they are governed by the orders of the concerned ministry as we have seen in the case of Ministry of Defence by the letter dated 21.11.1986, wherein Paras (f) and (g) make this aspect clear. Hence the contention of the respondents that the non - designated trades are covered by the Apprentice Act 1961 is incorrect.
III) The services of Govt. Servants are governed by fundamental rules which form the edifice on which the mammoth administrative machinery operates. They provide the direction and the basis for taking decisions in regard 9 OA 897/2013 to matters of administrative importance. Important among them are reproduced to enable us to reflect on the issue and take a view.
a) F.R 9 (6) (a) (i) Duty includes service as probationer or apprentice provided that such service is followed by confirmation.
b) FR 9 (6) (b) A Government servant may be treated as on duty:
(i) During a course of instruction or training in India or In the case of a student, stipendiary or otherwise who is entitled to be appointed to the service of Government on passing through a course of training at a University, College or School in India , during the interval between the satisfactory completion of the course and his assumption of duties.
c) FR 22 of CCS (Pension) Rules:
The Govt may, by order, decide whether the time spent by a Govt. servant under training immediately before appointment to service under the Government shall count as qualifying service.
As is seen from the above, duty includes the apprentice period provided such service is followed by confirmation. Applicants have been absorbed in service after the apprenticeship training and therefore as per F.R. 9(6)(a)(i), apprenticeship training period of the applicants has to be treated as duty. Presidential order speaks about inducting the applicants as apprentice and after successful completion of the training they were absorbed in the respondents organisation and hence the period of apprentice training shall have to be treated as duty in accordance with the proviso FR 9(6)(b). The final touch is given by FR 22 of CCS (Pension) Rules wherein it is stated that the Govt. by an order 10 OA 897/2013 decide that the training period shall count for qualifying service. To answer this question we need to look at the orders issued by DOPT.
IV) DOPT, as per Govt. of India Allocation of Business Rules, is the nodal Ministry to formulate policy in regard to staff matters, which is binding on the Ministries of the Govt. of India. Any changes if required specific to a Ministry shall be in consultation with DOPT. Respondents organisation, being a Central Government Ministry has to, in general, follow the DOPT rules. DOPT orders issued from time to time on the subject of treating the training period as qualifying service for ACP, increments, pension etc are reproduced hereunder to analyse the issue from the point of the view of the Govt. of India, which is the competent authority.
a) DOPT Memo 22.12.1983 The request made by the staff side of the National Council has been examined and it has now been decided that in respect of Group C and D employees, who are required to undergo departmental training relating to jobs before they are put on regular employment, training period up to one year may be treated as qualifying service for pension, if the training is followed immediately by an appointment. This benefit will be admissible to all Group C and D employees even if the officers concerned are not given the scale of pay of the post but only a nominal allowance.
In the instant case, applicants were appointed immediately after the training in HSK (Highly Skilled grades) and hence the DOPT memo is binding.
11 OA 897/2013
b) DOPT OM 12.9.1986 The staff side of the National Council (JCM) raised a demand that the restriction of one year imposed in respect of treating the period of training as qualifying service for retirement benefits in respect of Group C & D employees may be removed. The Matter has been discussed by the committee of the National Council in the meeting held on 25.10.1994 and Government agreed to remove the restriction.
Applicants have undergone 1/02 years of apprentice training and the cited memo makes things easier for the applicant.
c) DOPT memo dated 22.10.1990 The matter has been considered in the National Council (JCM) and it has been decided that in case where a person has been selected for regular appointment and before formally taking over charge of the post for which selected, the person is required to undergo training, training period undergone by such Government servant whether on remuneration of stipend or otherwise may be treated as duty for the purpose of drawing increments.
Presidential order has inducted the applicants as apprentices and before formally taking over the assignment they were made to undergo the required training.
d) DOPT Memo dated 31.3.1992 "The undersigned is directed to say that in accordance with the orders contained in this Ministry's O.M , No.16/16/89 Estt (Pay-I) dated 22.10.90 the period spent on training is treated as duty for the purpose of 12 OA 897/2013 increment in cases where a person has been selected for regular appointment but before formally taking over charge of the post for which selected has to undergo training. These orders take effect from 1.10.90. On the demand of the staff Side in the National Council(JCM) the matter has further been examined and the president is pleased to decide that the benefit of treatment of such training as duty for the purpose of increment may be allowed in the case of those Govt, servants also who had undergone such training on or after 1.1.86. However, in such cases the benefit of counting period for pay shall be admissible on notional basis from 1.1.86 and actual basis from 1.10.90."
Memo is applicable to the applicants as they have been inducted after 1.1.1986.
e) DOPT memo dated 10.2.2000 The cited memo has called for a review of the ACP scheme in case it has not been implemented as per the scheme. Respondents appear not to have made an exercise in this direction as they have taken the stand that an apprentice is not a worker and that he is just being trained to acquire a special skill. Applicant has not undergone any departmental training to consider the training period as qualifying service. Unless they are selected against a regular post and undergo training such training period cannot be reckoned as qualifying service for pension, ACP etc. Applicants have been appointed against clear vacancies which are evidenced by the Presidential order and they have undergone pre- induction training which was specially designed by the respondents organisation in non -designated trades.
f) DOPT memo dated 11.10.2006 The request made by Staff Side of the National Council has been examined and it is clarified that the employees who were put on induction training after their appointment prior to 1.1.04 are paid salary from that date would be covered under CCS (Pension ) Rules, 1972.
13 OA 897/2013
Applicants were appointed prior to 1.1.2004 and hence come under the ambit of CCS (Pension) Rules 1972.
g) DOPT memo dated 5.3.2008 The matter has been further examined and it is now clarified that the employees who were required to undergo departmental training relating to jobs prior to 1.1.04 before they were put on regular employment and were in receipt of stipend during such training would also be covered under the CCS (Pension) Rules, 1972 provided the period spent on such training was eligible for being counted as qualifying service under the CCS (Pension) Rules, 1972.
Central Govt which is the competent authority has issued orders cited supra to count the training period as qualifying service. Thus, the sum and substance of the DOPT orders referred to above is that the training period, during which period trainees are paid remuneration or nominal allowance or stipend, when followed by regular appointment then such training period can be reckoned for drawing increments, ACP and pension. In regard to pension DOPT memo of 2008 clarifies that the Govt has to issue an order stating that the training period was treated as qualifying service. In the instant case, applicants have been recruited as apprentice by Presidential orders and after the training they have been absorbed as HSK (Highly skilled) workers in the respondents organisation. Hence, based on the DOPT orders cited supra, it is lucid that the apprentice period has to be treated as qualifying service for drawing increments and financial up gradation. When the training period is treated as qualifying service, auto magically the CCS (Pension) Rules, 1972 apply to the applicants. Consequently, the apprentice training period has to be 14 OA 897/2013 considered for pensioanary benefits. The above observation gets reinforced when the DOPT orders are read in tandem with the fundamental rules. Both together, further the cause of the applicants.
V) Respondents cited the obligation of Apprentice, in their defence which is stated hereunder:
"The apprentice shall conduct himself as a trainee and not as a worker, learn his trade conscientiously and diligently and endeavour to qualify himself as a skilled craftsman in his trade before the expiry of the period of training. Provisions of any law with respect to labour will not be applicable to him."
There can be no two views that the apprentice has to conduct himself as a trainee so that he can learn the skill properly and prepare himself to take on the responsibility with finesse when entrusted in future. The worker is one who has already learnt the skill and the apprentice is in the process of learning. To bring out this differentiation the apprentice trainee is impressed upon to learn and not to behave as if he has learned the skill as is the case in respect of a worker. In this context the word worker was used. In the instant case we are not dealing with any labour laws but are looking as to whether Govt. orders on the subject have been implemented. Even otherwise, this Tribunal is empowered to examine whether the legitimate rights of the applicants have not been trampled upon in the context of the law of the land. Therefore, the contract of obligation of apprentice being signed by the applicants does not in any way come in the way of the applicants to make them ineligible for the relief sought. VI) The other line of defence taken by the respondents is that in OA 1346/2010 a similar relief when sought was dismissed. We have gone through the OA and the essential elements of the order are extracted hereunder to examine as to whether the averment made by the respondents holds. 15 OA 897/2013
"The employer shall after successful completion of the apprenticeship training offer suitable appointment in his establishment known as Naval Dockyard, Vishakapatnam and other Base Repair Organisations in Tradesman grade -I or grade -II depending on the merit of the Apprentice's passing out in the final examination on the completion of the apprenticeship and the apprentice shall serve the Employer in that capacity for 5 years on the pay scales and the allowances admissible from time to time in the grade to which he is appointed.
The obligations of the employer and also the apprentice are enclosed in separate schedule to this contract. The entire terms and conditions or the obligations of both the parties indicates only in respect of the contract of apprenticeship but not in respect of recruitment. Clause -4 of the contract also clearly indicates, suitable appointments shall be offered on successful completion of the apprentice training of the candidates. From this it is clear that this contract is only in respect of contract of apprenticeship, but not in respect of absorption /appointment. The claim of the applicants is justified, if they have undergone training after their recruitment/selection for the particular post."
It would be pertinent to recall the Presidential order issued to the applicants wherein it was stated that the applicants have been inducted in the respondents organisation as an apprentice. Now let us apply the verdict in the cited OA wherein it was stated that if they were appointed before training they would be eligible for the relief sought. Through the Presidential orders cited supra the applicants joined the Naval apprentice school and after successful completion of the training they got absorbed in the respondents organisation as Highly skilled workers. Hence the OA cited is in support of the cause of the applicants. In fact, the fundamental rules and the DOPT memos referred to when read in tandem with the above judgment, the scales of justice swing towards the applicants. VII) Being on law, the Honorouble High Court of Madras in W.P NO 15509/1998 & 15062/1997 in Nuclear Power Corporation v P.Ravindran has held as under:
"A perusal of the materials placed on record shows that though the petitioner corporation has selected the respondents concerned as "Stipendary Trainees" and that during the training period they were paid stipend on consolidated basis, they were given a guarantee of absorption in 16 OA 897/2013 regular post carrying the time scale of pay and further they are governed by the rules and regulations framed by the petitioner corporation from time to time. Further, the respondents concerned, on their selection as trainees, were required to execute a bond giving an undertaking to the petitioner corporation that they would work for a period of five years. The only objection raised by the petitioner corporation is that F.R.26 and Clause (1) of the Government of India's orders on F.R.26 prescribe the condition that all duty in a post on a time-scale counts for increments in that time-scale and the training period during which a Government servant is not remunerated in the scale of pay attached to the post cannot be treated as duty. However, it is seen that when the Staff Side in the National Council have raised a demand that the training period should be counted for the purpose of drawing increments as otherwise the concerned staff, particularly the non-gazetted in the technical departments, where the training period is a long one is put to perpetual disadvantage, vis-a-vis the staff in non-technical jobs who are recruited along with technical staff in the same scale of pay, the Government of India issued office memorandum dated 22-10-1990 clarifying the position that in case where a person has been selected for regular appointment and before formally taking over charge of the post for which the selected person is required to undergo training, the training period undergone by such a Government servant whether on remuneration of stipend or otherwise may be treated as duty for the purpose of drawing increments. By the subsequent office memorandum dated 31-3-1992, this benefit of treatment of such training as duty for the purpose of increment was allowed to the Government servants who have undergone such training on or after 1-1-1986, with actual effect from 1-10-1990 . Therefore, in the present case, though the petitioner corporation selected the respondents concerned as trainees, with no time scale of pay, for all practical purposes they were given the guarantee of absorption after completion of training. Therefore, it is implied that the respondents concerned were selected against the anticipated regular posts, carrying the time scale of pay. The respondents concerned on their selection were given training and instead of giving them the time scale of pay, they were paid on consolidated basis. Further, such trainees, on successful completion of their training, continued their service with the petitioner corporation when they were absorbed in the regular posts carrying the time scale of pay. In such circumstances, we are of the considered view that the respondents concerned are entitled for the benefits under the office memoranda dated 22-10-1990 and 31-3-1992. Therefore, we are unable to appreciate the contention of the learned counsel for the petitioner that the respondents concerned were selected only as stipendary trainees to undergo the training and no job guarantee was given after completion of training and that they were paid only a consolidated remuneration as stipend during the training period. We are also unable to appreciate the contention of the learned counsel for the petitioner that after completion of the training, there is another selection process for appointment in a substantive post carrying the time scale of pay and, therefore, the training underwent by the respondents concerned was a pre-recruitment training having no relevance or connection to their absorption in the regular post. As we have already observed, though the respondents were called as trainees, it was a training given to them after their selection to the regular post and prior to formally taking over the 17 OA 897/2013 charge of the regular post. The only objection taken by the petitioner corporation is that the respondents were not given any time scale of pay, but were paid only consolidated pay. F.R.9 and F.R.26 read with the office memoranda dated 22-10-1990 and 31-3-1992 clarify the position that the training period undergone by such a Government servant whether on remuneration of stipend or otherwise may be treated as duty for the purpose of drawing increments. Therefore, there is no question of adopting a strict interpretation of the term "consolidated pay" to deny the respondents' claim for grant of increments. In view of the above we are thoroughly satisfied that the stand of the petitioner corporation is not correct. Accordingly we hold that the period of training which the respondents concerned have undergone training before their absorption in the regular posts is to be counted as duty period for the purpose of grant of increments. The Tribunal was perfectly justified in allowing the claim of the respondents. We see no ground to interfere with the impugned order passed by the Tribunal. "
Applicants have been selected against clear vacancies by Presidential Orders and are liable to serve in any part of India for a minimum period of 5 years. After completing the training successful they have been placed in HSK posts. They were trained in non designated trades in the Naval apprentice school of the respondents organisation. Fundamental rules and DOPT instructions are clear that the training period has to be treated as duty and once treated as duty the consequent benefits like ACP, increments etc thereof are liable to be granted. The Hon'ble High Court has dealt with the subject in terms of rules and law and has emphatically decided that the training period has to be treated as duty for grant of increments. Thus the judgment referred is squarely applicable to the instant case.
Hon'ble Apex Court in Union of India v R.Saranga pani in SLP (C) 346/99 dated 15.3.2000 has also dealt with the import of the DOPT memos dated 22.10.1990 & 31.3.1992 in the context of drawing increments for apprentice training and upheld their application.' In yet another judgment Hon'ble Apex Court has held that apprenticeship counts as part of experience in Krishan Lal v. State of Haryana,(2009) 14 SCC 745, as under:
18 OA 897/2013
"Respondent 4 was an apprentice in Maruti Udyog Ltd. for a period of one year. The said period must also be counted."
Therefore, in view of the observations of the Hon'ble Supreme court and the Hon'ble High Court in regard to treating of the training period as qualifying service, the observation of the labour courts which the respondents have cited would not be relevant.
VIII) Respondents also claimed that the competent authority has not issued orders to treat the training period as qualifying service for pension. This is rather surprising. Min. of Defence has vide letter dated 30.11.1977 has clarified that the sanction of the President to the counting of the apprentice service rendered by the apprentice in the Naval Dockyard from the date of attaining age of 18 years towards pension, provided he had been a paid apprentice and employed against a sanctioned post during the period. The letter was issued with the concurrence of Ministry of Finance.
A few years later another letter dated 2.12.1993, based on the letter of Ministry of defence dated 30.11.1977 communicated by the Naval Headquarters, the Southern Naval Command, has ordered as under:
"In view of the position explained above, the apprenticeship service rendered by the individuals as explained in para 2 above will alone be counted towards pensionary benefits. For which confirmation to the effect that the individual has rendered apprenticeship service as paid apprentices and employed against sanctioned post be obtained from the concerned unit where the individual had completed apprenticeship service and necessary endorsement be made in the service documents and obtain countersignature by DCDA (Navy) Cochin for counting of apprenticeship service for pensionary benefits."
The above letters were furnished under RTI by the Integrated Head Quarters, Ministry of Defence vide their letter dated 9.2.2013. Therefore, the competent authority has decided to grant pension by considering the apprentice training 19 OA 897/2013 period. Hence the respondents claiming that the competent authority has not given clearance for granting pension by taking the training period into consideration is incorrect. It is not out of place to state that the respondents should not obviate rules as directed by the Hon'ble Supreme Court in Seighal's case (1992) (1) supp 1 SCC 304 wherein it was held that "Wanton or deliberate deviation in implementation of rules should be curbed and snubbed."
IX) Before we part, we need to mention that the respondents organisation being an instrumentality of the State, they have to be fair to the employees as observed by the Hon'ble Supreme Court in Bhupendra Nath Hazarika & Anr vs State Of Assam & Ors on 30 November, 2012 in CA Nos 8514-8515 of 2012.
48. Before parting with the case, we are compelled to reiterate the oft- stated principle that the State is a model employer and it is required to act fairly giving due regard and respect to the rules framed by it. But in the present case, the State has atrophied the rules. Hence, the need for hammering the concept.
49. Almost a quarter century back, this Court in Balram Gupta vs Union of India & Anr. [1987 (Supp) SCC 228] had observed thus:
"As a model employer the Government must conduct itself with high probity and candour with its employees."
We are aware of the fact that the applicants had to wage a protracted legal battle for years on in OA1932/2000 till the Hon'ble Supreme Court has given quietus to the issue by placing them in the eligible higher grade of Rs 1200-1800 (4th CPC). Again in the present case we find that the respondents appear to be disinclined to favour the applicants though a plethora of rules and law is in favour of the applicants.
20 OA 897/2013
12. Therefore based on the aforementioned facts and law, action of the respondents is against rules, arbitrary and illegal. Consequently respondents are directed to consider as under:
i) To consider grant of financial up gradation to the applicants as per ACP/MACP with consequential benefits thereof, from the dates they are due, taking the length of service from the date members of the applicant union and the 2nd applicant have crossed 18 years of age and by considering the period of apprentice training with remuneration/stipend/allowance as qualifying service.
ii) Time allowed to implement the judgment is 3 months from the date of issue of this order.
iii) The order at (i) be treated as in rem in order not to force other similarly placed employees to approach this Tribunal for a similar benefit and to save the National resources in terms of money, manpower and time consumed in pursuing litigation.
iii) With the above directions the OA is allowed. No order as to costs.
(B.V. SUDHAKAR) (JUSTICE R. KANTHA RAO)
MEMBER (ADMN.) MEMBER (JUDL.)
Dated, the 26th day of April, 2019
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