Rajasthan High Court - Jodhpur
Union Of India vs Bhartendu Gaur on 20 October, 2022
Bench: Sandeep Mehta, Farjand Ali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
(1) D.B. Civil Writ Petition No. 3840/2021
1. Union Of India, Through The Secretary, Ministry Of
Defence, Raksha Bhawan, New Delhi.
2. The Commander Works Engineer (Air Force), Bikaner.
3. The Garrison Engineer (AF), Nal Bikaner, Rajasthan.
----Petitioners
Versus
Bhartendu Gaur S/o Shri Dev Saran, R/o Behind Orphanage,
Vivek Nagar, Bikaner (Presently Working On The Post Of HS-I In
The Office Of Ge (AF) Nal Bikaner (Rajasthan)
----Respondent
Connected With
(2) D.B. Civil Writ Petition No. 3847/2021
1. Union Of India, Through The Secretary, Ministry Of
Defence, Raksha Bhawan, New Delhi.
2. The Commander Works Engineer (Air Force), Bikaner.
3. The Garrison Engineer (AF), Nal Bikaner, Rajasthan.
----Petitioners
Versus
1. Bharat Kumar Pant S/o Late Shri Anand Ballabh Pant, R/o
House No. 759, Bhagwan Pura Industrial Area, Rani
Bazar, Bikaner.
2. Kishan Ram S/o Late Shri Alphu Ram, R/o Village Lai,
Post Office Kheduli, Via Merta Road, District Nagaur.
3. Laxmi Narayan S/o Late Shri Ramlal, R/o Kamal Niwas,
Bramano Ka Mohalla, Bhinasar, Bikaner, Rajasthan.
----Respondents
(3) D.B. Civil Writ Petition No. 3857/2021
1. Union Of India, Through The Secretary, Ministry Of
Defence, Raksha Bhawan, New Delhi.
2. The Commander Works Engineer (Air Force), Bikaner.
3. The Garrison Engineer (AF), Nal Bikaner, Rajasthan.
----Petitioners
Versus
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1. Lalita Chhimpa W/o Late Shri Sampat Lal Chhimpa, R/o
Chhimpo Ka Mohalla, Ganga Shahar Road, Laxmi Plaza
Cinema Ke Samne, Bikaner
2. Manoj Chhimpa S/o Late Shri Sampat Lal Chhimpa, R/o
Chhimpo Ka Mohalla, Ganga Shahar Road, Laxmi Plaza
Cinema Ke Samne, Bikaner. (LRS Of Shri Sampat Lal
Chhimpa S/o Late Shri Moda Ram)
----Respondents
For Petitioner(s) : Mr. Muktesh Maheshwari
For Respondent(s) : Mr. S.K. Malik
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE FARJAND ALI
JUDGMENT
Date of Pronouncement <><><> 20/10/2022
Judgment Reserved on <><><> 14/09/2022
BY THE COURT : PER HON'BLE MEHTA, J.
1. These three writ petitions involve common questions of facts and law and hence, the same have been heard and are being decided together by this single judgment.
2. The Union of India, Ministry of Defence, has approached this Court through these writ petitions filed under Article 227 of the Constitution of India for questioning legality of order dated 10.01.2020 [(D.B. Civil Writ Petition No.3840/2021 (Union of India & Ors. Vs. Bhartendu Gaur)], order dated 20.12.2019 [(D.B. Civil Writ Petition No.3857/2021 (Union of India & Ors. Vs. LRS of Sampat Lal Chhimpa)] and order dated 10.01.2020 [(D.B. Civil Writ Petition No.3847/2021 (Union of India & Ors. Vs. Bharat (Downloaded on 21/10/2022 at 08:53:55 PM) (3 of 11) [CW-3840/2021] Kumar & Ors.)], passed by the Central Administrative Tribunal, Bench Jodhpur, accepting the original applications filed by the respondents.
3. Brief facts relevant and essential for disposal of the writ petitions are noted hereinbelow:-
Details of appointment and promotion of the respondents under the respondent-The Commander Works Engineer (Air Force), Bikaner, are mentioned hereinbelow in a tabular form for the sake of ready reference:-
S.No. Name Post Date of Promotion/ Appointme Direct nt appointment
1. Bhartendu A.) Initially 21.09.1983 Direct Gaur appointed on Appointment the post of DES B.) 06.07.1994 Redesignated to the post of DES to Fitter General Mechanic (SK) without any change in payscale.
1st ACP granted on 09.08.1999 on completion of 12 years of service.
Fitter General 08.04.2002 Promoted Mechanic (HS from the post II) of Fitter General Mechanic (SK) 2st ACP granted on 21.09.2007 on completion of 24 years of service.
Modified ACP to MACP w.e.f. 01.09.2008 (No benefit granted to the respondent writ petitioner)
2. Sampat Lal A.) Initially 30.03.1987 Direct Chhimpa appointed on Appointment the post of (Downloaded on 21/10/2022 at 08:53:55 PM) (4 of 11) [CW-3840/2021] DES B.) 06.07.1994 Redesignated to the post of DES to Fitter General Mechanic (SK) without any change in payscale.
Fitter General 23.03.1995 Promoted Mechanic (HS from the post II) of Fitter General Mechanic (SK) Fitter General 31.01.2000 Promoted Mechanic (HS from the post I) of Fitter General Mechanic (HS II) Post of HS II and HS I were merged into category of HS w.e.f. 01.01.1996 Not entitled to grant of 1st and 2nd ACPS because of two promotions were given subsequently.
Modified ACPS to MACPS w.e.f. 01.09.2008 (No benefit granted to the respondent writ petitioner)
3. Bharat Kumar A.) Initially 22.02.1988 Direct appointed on Appointment post of Motor Pump Attendant B.) Post of w.e.f.
Motor Pump 06.07.1994
Attendant was
redesignated
as Pump
House
Operator and
further
redesignated
as Fitter
General
Mechanic (SK)
C.) Promoted 02.08.1995 Promoted to the post of from the post FGM (HS II) of FGM (SK) D.) Promoted 31.01.2000 Promoted to the post of from the post (Downloaded on 21/10/2022 at 08:53:55 PM) (5 of 11) [CW-3840/2021] FGM (HS I) of FGM (HS II) Not entitled to grant of 1 and 2nd ACP st because of two promotions were given subsequently.
Modified ACPS to MACPS w.e.f. 01.09.2008 (No benefit granted to the respondent writ petitioner)
4. Laxmi Narayan A.) Initially 24.02.1988 Direct appointed on Appointment post of Motor Pump Attendant B.) Post of w.e.f.
Motor Pump 06.07.1994
Attendant was
redesignated
as Pump
House
Operator and
further
redesignated
as Fitter
General
Mechanic (SK)
C.) Promoted 26.06.1995 Promoted to the post of from the post FGM (HS II) of FGM (SK) D.) Promoted 07.01.2000 Promoted to the post of from the post FGM (HS I) of FGM (HS II) Not entitled to grant of 1 st and 2nd ACP because of two promotions were given subsequently.
Modified ACPS to MACPS w.e.f. 01.09.2008 (No benefit granted to the respondent writ petitioner)
5. Kishan Ram A.) Initially 25.05.1990 appointed on the post of Peon B.) Post of 21.01.1984 Peon was reclassified as Motor Pump Attendant C.) Post of w.e.f.
Motor Pump 06.07.1994
Attendant was
redesignated
as Pump
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(6 of 11) [CW-3840/2021]
House
Operator and
further
redesignated
as Fitter
General
Mechanic (SK)
D.) Promoted 02.08.1995 Promoted to the post of from the post FGM (HS II) of FGM (SK) Not entitled to grant of 1 st and 2nd ACP because of two promotions were given subsequently.
Modified ACPS to MACPS w.e.f. 01.09.2008 (No benefit granted to the respondent writ petitioner)
4. Shri Sampat Lal Chhimpa promoted to the post of HS Grade- II w.e.f. 22.03.1995, was further promoted as HS Grade-I w.e.f. 31.01.2000. The posts of HS Grade-II and HS Grade-I were merged and redesignated as HS w.e.f. 01.01.1996 in the Pay Scale of Rs.4,000-6,000/-. After the recommendations of the 5 th Central Pay Commission, the cadre of Artisan Staff was restructured vide letter dated 20.05.2003. Under restructuring, the post of MCM (Master Crafts Man) was treated as HS and placement of these employees working as HS, was made as MCMs w.e.f. 01.01.1996. The 6th Central Pay Commission was introduced in the year 2008 and was made effective from 01.01.2006. The respondents adopted the MACP Scheme issued by the DOPT vide OM dated 19.05.2009.
5. The Employer Authority after placing the respondent employees in the cadre of MCM, treated them as having availed three promotions and thus, the benefit of 3rd Financial Upgradation (Downloaded on 21/10/2022 at 08:53:55 PM) (7 of 11) [CW-3840/2021] under the MACP Scheme was denied to them. Aggrieved thereby, the respondents herein approached the Central Administrative Tribunal by way of the Original Applications which have been allowed by the orders dated 10.01.2020, 10.01.2020 and 20.12.2019, which are assailed in these writ petitions.
6. Shri Muktesh Maheshwari Advocate representing the appellant Union of India, drew the Court's attention to the clarification letter dated 14.06.2010 issued by the Government of India, Ministry of Defence and urged that it is clearly stipulated in clause No.4 (i) of this letter that the post of Master Craftsman (MCM), shall be part of hierarchy and placement of Highly Craftsman of Highly Skilled Grade-I (HS Grade-I) in the grade of Master Craftsman, will be treated as a promotion. Thus, he contended that the respondents have already availed three promotions and hence, they are not entitled to the benefit of the Financial Upgradation under the MACP Scheme. He placed reliance on the Hon'ble Supreme Court judgment in the case of Union of India Vs. R.K. Sharma & Ors. reported in (2021) 5 SCC 579 particularly the observations made at para 11 wherein it was held that the employees are entitled for Financial Upgradation under MACPS only to the next Grade Pay and not to the Grade Pay of next promotional post.
He submitted that the order passed by the Tribunal amounts to granting benefit of Financial Upgradation to the respondent employees on the Grade Pay of the next promotional post and thus, the impugned orders are bad in the eyes of law and deserve to be reversed.
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7. Per contra, Shri S.K. Malik, learned counsel representing the respondents, drew the Court's attention to the order dated 10.05.2018 passed by the Division Bench of this Court in [D.B. Civil Writ Petition No.6061/2018 (Union of India & Ors. Vs. Girdhari Lal Saini & Anr.)] wherein, it was held that merger of the post of HS Grade-II into HS Grade-I, would require one promotion to be ignored on account of merger of the Pay Scales of the upgraded posts as recommended by the 6 th Central Pay Commission. Shri Malik urged that this order of the Division Bench was challenged by the Union of India by filing a SLP before the Hon'ble Supreme Court which has been dismissed.
He also drew the Court's attention to the explanatory Note dated 28.08.2009 issued by the Ministry of Defence as per which, the HS workers have been placed at the Feeder category and the next promotional post is of Master Craftsman. No further promotional avenue is available to Master Craftsman. He submitted that the Department, while issuing the MACP Scheme has issued an illustrative chart wherein, the officer who is placed in the Grade Pay of Rs.4,200/- on completion of 30 years of service, would get the benefit of 3 rd ACP in the Grade Pay of Rs.4,600/-. Shri Malik thus, submits that the judgment in the case of Union of India Vs. R.K. Sharma & Ors. (supra), helps the cause of the respondents because, no promotional avenue is available to the Craftsmen given placement as MCMs and resultantly, the Financial Upgradation of such Craftsmen has to be made as per the MACP Scheme guidelines.
He urged that the view taken by the Tribunal while accepting the original applications, is absolutely just and legal and the writ petitions deserve rejection.
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(9 of 11) [CW-3840/2021] 8. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the
impugned orders and the material placed on record.
9. It is admitted that the respondent employees were initially appointed as Diesel Engine Static (DES) (skilled). Though initially, they were given two promotions as HS (Highly Skilled) Grade II and then HS Grade I but later on, these two posts i.e. HS Grade II and HS Grade I were merged and redesignated as HS w.e.f. 01.01.1996. With the merger of the posts, one promotion would have to be ignored as has been held by Division Bench of this Court in the case of Union of India & Ors. vs. Girdhari Lal Saini & Anr. (supra) which view has been affirmed by Hon'ble the Supreme Court. The respondent employees were given placement in the Grade of MCM pursuant to restructuring of the cadre of Artisan Staff.
No doubt, MCM is a promotional post from the post of HS but as one of the earlier promotions was required to be ignored after merger of the two posts as referred to supra, it is clear that the respondents had been given only two promotions, first, from DES to HS and the second, from HS to MCM.
10. Resultantly, by virtue of MACP Scheme, 2009, the respondents were definitely entitled to the benefit of 3 rd Financial Upgradation after completion of ten years' service on the post of MCM. The fervent contention of Shri Maheshwari for assailing the direction given by the Tribunal to this office was that the same is in conflict with the observations made by Hon'ble the Supreme (Downloaded on 21/10/2022 at 08:53:55 PM) (10 of 11) [CW-3840/2021] Court in the case of R.K. Sharma (supra). He urged that the Grade Pay of Rs.4,600/-, which has been granted by the Tribunal to the respondents, is the Grade Pay of the next promotional post.
We find this argument of Shri Maheshwari to be fallacious. It is not in dispute that the employees placed as MCMs do not have any further promotional opportunity in the cadre and the post of MCM is a stagnation post. There is no merit in the contention of the petitioners that Grade Pay of Rs.4,600/- is applicable to the next promotional post from the post of MCM because no such promotional avenue is available in the rules.
Thus, the explanation issued by the Government of India, Ministry of Defence in the letter dated 14.06.2010 is of no avail to the petitioners.
As against this, the illustrations provided under the MACP Scheme, 2009, attention whereto was drawn by Shri Malik, learned counsel representing the respondent employees, clearly manifests that the employee who gets second promotion in the Grade Pay of Rs.4,200/- on completion of 23 years of service, would be entitled to 3rd ACP on completion of 30 years of service and such upgradation would be in the Grade Pay of Rs.4,600/-. This precisely was decided by the Tribunal while accepting the Original Applications submitted by the respondents.
11. Having appreciated the entire material available on record, we are of the firm opinion that the conclusions drawn by the Tribunal in the impugned order accepting the Original Applications of the respondents are unimpeachable as the same are in consonance with the MACP Scheme, benefit whereof was rightfully sought for by the respondents.
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12. The impugned orders do not suffer from any infirmity, illegality or perversity whatsoever, warranting interference in the supervisory writ jurisdiction of this Court.
13. Hence, the writ petitions fail and are dismissed as being devoid of merit.
14. A copy of this order be placed in each file. (FARJAND ALI),J (SANDEEP MEHTA),J Devesh Thanvi/-
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