Central Administrative Tribunal - Delhi
Coram vs Union Of India And Others Through on 4 March, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A.NO.2576 OF 2013 New Delhi, this the 4th day of March, 2015 CORAM: HONBLE SHRI ASHOK KUMAR, ADMINISTRATIVE MEMBER AND HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER . Balram, Aged about 53 years, s/o late Sh.Babu Lal, R/o House NO.607, Sarojini Nagar, Delhi Applicant (By Advocate: Shri Amit Anand) Vs. Union of India and others through 1. The Secretary, Government of India Press, Nirman Bhawan, New Delhi. 2. The Director, Directorate of Printing, Government of India Press, Nirman Bhawan, New Delhi. 3. The General Manager, Government of India Press, Minto Road, New Delhi. Respondents. (By Advocate: Shri M.S.Reen) .. ORDER
Raj Vir Sharma, Member (Judicial):
In this Original Application, the applicant has prayed for quashing and setting aside the order dated 13.6.2013 (Annexure A/1) issued by respondent no.3, whereby he was redeployed as Offset Machine Assistant in the Government of India Press, Minto Road, New Delhi, with effect from 13.6.2013. He has also prayed for a direction to the respondents to consider his redeployment in the post of DTP Operator.
2. Opposing the O.A., the respondents have filed a counter reply and an additional affidavit. The applicant has also filed two rejoinder replies refuting the stand taken by the respondents.
3. We have perused the pleadings and have heard Shri Amit Anand, learned counsel appearing for the applicant, and Shri M.S.Reen, learned counsel appearing for the respondents.
4. The applicant was initially appointed as a Lino Operator in the Government of India Press, Minto Road, New Delhi, on 9.3.1987 in the 4th CPC pay scale of Rs.1200-2000/- (corresponding to 5th CPC pay scale of Rs.4000-6000, and 6th CPC PB 1-Rs.5200-20200 + GP Rs.2400). He was granted 1st ACP financial upgradation in the 5th CPC pay scale of Rs.5000-8000 (corresponding to 6th CPC PB 2- Rs.9300-34800 + GP Rs.4200) with effect from 9.8.1999 on completion of 12 years of service. He was also granted 2nd MACP financial upgradation in the 6th CPC PB 2 Rs.9300-34800 + GP Rs.4600) with effect from 1.9.2008 on completion of 20 years of service.
5. Under the modernization scheme, some employees belonging to different categories, including the category of Lino Operator, in the Government of India Press, Minto Road, New Delhi, were declared surplus. Respondent no.3 issued a circular dated 29.6.2007 (Annexure Rej/3) calling upon those surplus employees to submit option for absorption/redeployment in other categories of posts available in the Government of India Press. It was, inter alia, stipulated in the circular dated 29.6.2007 ibid that selection of the surplus employees for absorption in various posts would be done strictly as per their seniority in the post opted for by them subject to their eligibility, and that the selected employees would be required to undergo training as prescribed in the relevant Recruitment Rules. A copy of the Training Schedule and Syllabus (Annexure Rej/3A) was also displayed by respondent no.3 for information and guidance of the surplus employees.
6. Respondent no.3, vide office circular dated 2.7.2007 (Annexure R/1A), notified the posts which were declared surplus, the categories of posts in which the surplus employees would be absorbed, and the number of vacancies in the posts available to be filled up by redeployment/absorption in the Government of India Press, Minto Road, New Delhi. In the said circular dated 2.7.2007, the surplus Lino Operator was mentioned to be redeployed and/or absorbed in the post of DTP Operator. It was also mentioned that only one vacancy in the post of DTP Operator was available to be filled up by way of redeployment/absorption of surplus Lino Operator in the Government of India Press, Minto Road, New Delhi.
7. The applicant submitted application-cum-option form on 11.7.2007 (Annexure Rej/1) for redeployment/absorption in the post of DTP Operator in the Government of India Press located at different places in the following order of preference:
1. Rashtrapati Bhawan, New Delhi
2. Ring Road, Mayapuri, New Delhi.
3. Faridabad Press
4. Aligarh Press
8. Subsequently, the applicant and 10 other surplus Lino Operators, however, made a joint representation dated 13.7.2007 (Annexure R/1 to the additional affidavit) to respondent no.3 to absorb them in the Government of India Press, Minto Road, New Delhi. The applicant and 9 other surplus Lino Operators again made a joint representation dated 1.8.2007 (Annexure Rej/1) to respondent no.3 for considering their redeployment/absorption in Security Section/DTP Section of the Government of India Press, Minto Road, New Delhi, as a special case by way of one time relaxation of the provisions of the Recruitment Rules.
9. Respondent no.2 issued OM dated 20.9.2007 (Annexure R/2 to the additional affidavit) conveying approval of the Ministry of Urban Development, Government of India, for an omnibus relaxation of various provisions of the Recruitment Rules as an one time measure only to facilitate redeployment of surplus employees in the Government of India Press located at different places.
10. By office circular dated 9.10.2007, the applicant and other surplus Lino Operators were selected to undergo six months training for redeployment in the post of Offset Machine Assistant. They were provided training which started from 9.10.2007.
11. The Manager, Government of India Press, Faridabad, issued O.M. dated 4.12.2008 (Annexure R/2 to the counter reply) declaring the applicant and 9 other surplus Lino Operators to have qualified the Trade Test for the post of Offset Machine Assistant. By the said O.M. dated 4.12.2008, 15 other surplus employees belonging to different categories were also declared to have qualified the required Trade Test for redeployment against the posts of Assistant Mechanic (Ptg. & Bdg.) and Offset Machine Attendant.
12. The pleadings of the parties do not reveal as to whether, or not, after declaration of the result of the Trade Test, vide O.M. dated 4.12.2008 ibid, the applicant was redeployed/absorbed in the post of Offset Machine Assistant until 13.6.2013 when the impugned order was issued by respondent no.3 redeploying the applicant in the post of Offset Machine Assistant in the Government of India Press, Minto Road, New Delhi, with effect from 13.6.2013.
13. The applicant filed the present O.A. on 26.7.2013. The Tribunal directed the respondents to maintain status qua the applicant, vide interim order dated 31.7.2013, which is still in force.
14. It was submitted by Shri Amit Anand, learned counsel appearing for the applicant that as per the Recruitment Rules (Annexure A/4) and the circular dated 29.6.2007 ibid, a Lino Operator could be absorbed only in the post of DTP Operator. As the applicant was possessing one-year Desk Top Publishing Certificate (Annexure A/5), the respondents ought to have absorbed him in the post of DTP Operator, instead of Offset Machine Assistant. There being a clear deviation from the norms laid down in the circular dated 29.6.2007, the redeployment of the applicant as Offset Machine Assistant is unsustainable. In support of his submission, the learned counsel invited our attention to the decision of the Honble Supreme Court in K.N.Prasad and others v. Union of India and others, 1988 (Supp) SCC 269, wherein it was held that if a statute prescribes a thing to be done in a particular manner, then it has to be done in the same manner.
14.1 Admittedly, the applicant submitted application-cum-option form dated 11.7.2007 (Annexure Rej/1) for redeployment/absorption in the post of DTP Operator in the Government of India Press located at any of the places, namely, (1) Rashtrapati Bhawan, New Delhi, (2) Ring Road, Mayapuri, New Delhi, (3) Faridabad Press; and (4) Aligarh Press. Subsequently, he along with 10 other surplus Lino Operators made a joint representation dated 13.7.2007 (Annexure R/1 to the respondents additional affidavit) to respondent no.3 for absorbing them in the Government of India Press, Minto Road, New Delhi. The applicant and 9 other surplus Lino Operators again made a representation dated 1.8.2007 (Annexure Rej/1) to respondent no.3 for considering their redeployment/absorption in Security Section/DTP Section of the Government of India Press, Mantu Road, New Delhi, as a special case by way of one time relaxation of the Recruitment Rules.
14.2 The Recruitment Rules lay down the following eligibility criteria for absorption in the post of DTP Operator:
Technical Assistant (Varitype) or Lino Operators, Mono Operators, Readers and Compositors Grade I with five years regular service in the grade with six months of successful training in Desk Top Publishing (DTP)operation and qualifying Trade Test. The applicant might have possessed a DTP Course certificate (AnnexureA/5) issued by a private registered institution. Whether such completion of the course imparted by a private registered institution would be construed as successful training in Desk Top Publishing (DTP) operation is a question to be considered and decided by the departmental authorities in accordance with rules and instructions issued by the Department. Even if it is assumed that the said certificate is acceptable, the applicant has not stated that he ever qualified the Trade Test for the post of DTP Operator so as to be eligible for absorption in the post of DTP Operator. Trade Test prescribed as one of the eligibility criteria is certainly the Trade Test conducted by the respondent-departmental authorities while holding selection for the post of DTP Operator and/or redeployment/absorption of surplus employees in the post of DTP Operator. It is not the case of the applicant that he ever appeared in and qualified the Trade Test conducted by the respondent-departmental authorities for the post of DTP Operator. Thus, the applicant cannot be said to have fulfilled the eligibility criteria for redeployment in the post of DTP Operator without going through the process of selection and without undergoing the training or qualifying the Trade Test for the post of DTP Operator as prescribed in the Recruitment Rules.
14.3 In the circular dated 29.6.2007 ibid, against the post of Lino Operator (Rs.4000-6000), both the posts of Offset Machine Man (Rs.4500-7000) and DTP Operator (Rs.4500-7000) are mentioned. This indicates that surplus Lino Operators could be absorbed/redeployed not only in the post of DTP Operator but also in the post of Offset Machine Man/Assistant in the Government of India Press, Minto Road, New Delhi. Therefore, the applicant is not correct to say that the circular dated 29.6.2007 ibid did not provide for absorption/redeployment of a surplus Lino Operator in the post of Offset Machine Assistant/Man. Besides, the circular dated 29.6.2007 ibid stipulated that the selection of the surplus employees for absorption in various posts had to be done strictly as per their seniority in the post opted for by them subject to their eligibility and that the selected employees would be required to undergo training as prescribed in the relevant Recruitment Rules. It is not the case of the applicant that at the relevant point of time he was the senior most surplus Lino Operator in the Government of India Press, Minto Road, New Delhi. As there was only one vacancy in the post DTP Operator available in the Government of India Press, Minto Road, New Delhi, the senior most surplus Lino Operator was selected to be absorbed/redeployed in the said vacant post. Accordingly, the applicant was selected and deputed to undergo training for the post of Offset Machine Assistant. The applicant accepted his selection and underwent training for redeployment in the post of Offset Machine Assistant in the year 2007 and 2008. In the above view of the matter, the decision in K.N.Prasads case(supra) is of no help to the applicant. Thus, we do not find any substance in the contention of the applicant that his redeployment in the post of Offset Machine Assistant is contrary to the circular dated 29.6.2007 ibid.
15. It was also submitted by the learned counsel for the applicant that the applicant having opted for absorption in the post of DTP Operator, and other surplus Lino Operators having been absorbed in the post of DTP Operator, the respondents ought to have absorbed/redeployed him in the post of DTP Operator, more so when there are clear vacancies in the post of DTP Operator. The other limb of submission of the learned counsel was that as the applicant has a right to be redeployed in the post of DTP Operator, the impugned order dated 13.6.2013 redeploying the applicant in the post of Offset Machine Assistant is discriminatory; that the applicant has a fundamental right to assail his redeployment in the post of Offset Machine Assistant as being discriminatory; and that the applicant cannot be said to have voluntarily got the discrimination or waived the said fundamental right against discrimination. To buttress his submission, the learned counsel invited our attention to the decision of the Honble Supreme Court in Basheshar Nath v. Commissioner of Income Tax, (1959) Supp. (1) SCR 528,wherein it was held that a person cannot voluntarily get discrimination or waive his fundamental rights against discrimination.
15.1 The respondents have emphatically asserted that in the year 2007/2008 when the process of redeployment of surplus employees was initiated, there was only one vacancy in the post of DTP Operator available in the Government of India Press, Minto Road, New Delhi; and that the senior most surplus Lino Operator was selected and redeployed in the said post of DTP Operator. It is not the case of the applicant that he was the senior most surplus Lino Operator. The applicant having retracted his option dated 11.7.2007 for absorption as DTP Operator in Government of India Press located at other places, as stated hereinbefore, and there being no vacancy available in the post of DTP Operator in the Government of India Press, Minto Road, New Delhi, he was considered and selected for absorption in the post of Offset Machine Assistant against the vacancies then available in the Government of India Press, Minto Road, New Delhi, and accordingly he was deputed to undergo training for the post of Offset Machine Assistant. It also transpires from the record that after undergoing the said training, he was declared to have qualified the trade test for the post of Offset Machine Assistant, vide O.M. dated 4.12.2008 ibid. Such decision of the respondent no.3 is based on the O.M. dated 20.9.2007 issued by respondent no.2 conveying approval of the Ministry of the Urban Development, Government of India, for an omnibus relaxation of the provisions of the Recruitment Rules. Having accepted the decision of respondent no.3 selecting him for absorption in the post of Offset Machine Assistant and deputing him to undergo the required training for the post of Offset Machine Assistant as per the Recruitment Rules and further having undergone the said training in 2007/2008, the applicant cannot be allowed to question his redeployment in the post of Offset Machine Assistant in the Government of India Press, Minto Road, New Delhi. In the above view of the matter, no discrimination can be said to have been meted out to the applicant at any point of time. Therefore, the question of the applicant voluntarily getting discrimination or waiving his fundamental right against the discrimination does not arise, and the decision of the Honble Supreme Court in Basheshar Naths case (supra) is of no help to the applicant.
16. It was further submitted by the learned counsel appearing for the applicant that the impugned order dated 13.6.2013 redeploying the applicant in the post of Offset Machine Assistant in the PB 1 Rs.5200-20200 + GP Rs.2800/- and stipulating that no pay fixation would be admissible, is unsustainable inasmuch as he is in receipt of PB 2 Rs.9300-34200 + GP Rs.4600/- and his redeployment in the post of Offset Machine Assistant in the Grade Pay of Rs.2800/- amounts to his demotion.
16.1 It is found that the applicant has misconstrued the said stipulation contained in the impugned order dated 13.6.2013. As already noted, the applicant was granted 2nd MACP financial upgradation in PB 2 & GP of Rs.4600/-. On 13.6.2013, i.e., the date when the impugned order of redeployment was issued, the applicant was holding the post of Lino Operator carrying the 6th CPC PB 1 Rs.5200-20200/- + GP Rs.2400 or GP Rs.2800. The Offset Machine Assistant also carried the same Pay Band & GP of Rs.2800. The PB-2 + GP Rs.4600/- granted to the applicant by way of grant of 2nd MACP financial upgradation was personal to him. His redeployment in the post of Offset Machine Assistant does not amount to either promotion or demotion necessitating any change in the pay which he was getting as Lino Operator on grant of the 2nd MACP financial upgradation. The grant of 2nd MACP financial upgradation to the applicant in the 6th CPC PB 2 and GP of Rs.4600/- did not amount to promotion of the applicant to a post carrying the 6th CPC PB 2 & GP of Rs.4600/-. The post held by him is Lino Operator carrying the 5th CPC pay scale of Rs.4000-6000 and 6th CPC PB 1 + GP of Rs.2400 or GP Rs.2800. The post of Offset Machine Assistant also carries PB 1 + GP of Rs.2800 as mentioned in the impugned order. The applicant on his redeployment in the post of Offset Machine Assistant is certainly entitled to get the same pay as he was getting as Lino Operator with 2nd MACP financial upgradation in PB 2 + GP Rs.4600/-. Thus, it has rightly been stipulated in the impugned order that there would be no pay fixation on the redeployment of the applicant (Lino Operator) in the post of Offset Machine Assistant. Therefore, there is no infirmity in the impugned order dated 13.6.2013 stating that there would no be no pay fixation on redeployment of the applicant in the post of Offset Machine Assistant.
16.2 Indisputably, there were vacancies in the post of DTP Operator available in the Government of India Press located at places other than Minto Road, New Delhi, at the relevant point of time, and that the only vacancy then available in the Government of India Press, Minto Road, New Delhi, was filled up by the senior most surplus Lino Operator. In the letter dated 1.7.2013 issued by the Manager, Government of India Press, Ring Road, Mayapuri, New Delhi, which was filed by the applicant in support of his plea of availability of vacancies in the post of DTP Operator, it has been stated that there are 20 vacancies in the post of DTP Operator available in the said Press. Admittedly, during 2007 and 2008 there were vacancies in the post of DTP Operator available in the Government of India Press located at (1)Rashtrapati Bhawan, New Delhi;(2) Ring Road, Mayapuri, New Delhi; (3)Faridabad Press; and (4) Alligarh Press, and the applicant, vide his option dated 11.7.2007, opted for redeployment/absorption in the Government of India Press located at either of the said four places and also indicated his preferences. But he had retracted the option dated 11.7.2007 and made a representation dated 13.7.2007 for absorption in the Government of India Press, Minto Road, New Delhi. The other letter dated 20.12.2013, relied on by the applicant in support of his plea of availability of vacancies in the post of DTP Operator in the Government of India Press, Minto Road, New Delhi, states that there are three vacancies in the post of DTP Operator available at the said place. The said letter does not state that these three vacancies were available during 2007 or 2008 when the applicant was selected and deputed for undergoing training and when he was declared to have qualified the trade test for the post of Offset Machine Assistant. In the above view of the matter, the availability of vacancies, as pleaded by the applicant, does not support the claim of the applicant as raised in the present O.A.
17. It was further submitted by the learned counsel for the applicant that the applicant was not given 6 months training for the post of Offset Machine Assistant and therefore, he ought not to have been redeployed as Offset Machine Assistant in the Government of India Press, Minto Road, New Delhi.
17.1 The applicant has not produced before this Tribunal any material showing that he was not given the required training in the trade of Offset Machine Assistant during 2007-2008. It has been emphatically asserted by the respondents that vide office circular dated 9.10.2007, the applicant and other surplus Lino Operators were selected for six months training for redeployment in the post of Offset Machine Assistant in the Government of India Press, Minto Road, New Delhi. They were provided training which started from 9.10.2007 and were declared to have qualified the trade test for the post of Offset Machine Assistant, vide O.M. dated 4.12.2008 (Annexure R/2). The O.M. dated 4.12.2008 ibid was issued by the Manager, Government of India Press, Faridabad, declaring the applicant and 24 other employees belonging to different categories of posts, who were declared surplus, to have qualified the Trade Test held in the said Press on 3.11.2008 and 4.11.2008 for the post(s) mentioned against each employee in a tabular form. It transpires from the said O.M. dated 4.12.2008 that the applicant and nine other surplus Lino Operators, whose names appear at Sl.Nos. 2 to 11, were declared to have qualified the Trade Test for redeployment in the post of Offset Machine Assistant in the Government of India Press, Minto Road, New Delhi. In view of this and in the absence of any material being produced by the applicant in support of his plea of not being given training for the post of Offset Machine Assistant, we have no hesitation to hold that the applicant had undergone the training and qualified the Trade Test for redeployment in the post of Offset Machine Assistant in the Government of India Press, Minto Road, New Delhi.
18. The last submission of the learned counsel for the applicant was that the applicant throughout worked in the post of Mono/Lino Operator and in the clerical cadre, and that prior to issuance of the impugned order dated 13.6.2013, the applicant was working in the clerical cadre carrying GP of Rs.4200/- and therefore, the respondents ought to have redeployed him in the post of DTP Operator which carries GP of Rs.4200/-, instead of Offset Machine Assistant. In support his submission, the learned counsel invited our attention to an office order dated 20.4.2000, annexed as Annexure Rej/5 to the rejoinder reply.
18.1 The office order dated 20.4.2000 ibid appears to have been issued by the Assistant Manager (Admn.) posting the applicant and 8 other Lino Operators to the Clerical Branches with immediate effect. It is not understood as to why the applicant and 8 other Lino Operators were posted to work in Clerical Branches, vide office order dated 20.4.2000 ibid. The office order dated 20.4.2000 ibid does not reveal that the applicant and other Lino Operators were posted in the Clerical Branches to discharge the duties of any post carrying the Grade Pay of Rs.4200/-. Even if it is assumed for a moment that the applicant was discharging the duties of any clerical post carrying GP of Rs.4200/-, the same would not entitle him to be redeployed in the post of DTP Operator because he was selected and deputed to undergo training, and was also declared to have qualified the Trade Test for redeployment in the post of Offset Machine Assistant in the year 2008. The applicant is also not correct to say that the post of DTP Operator carries the Grade Pay of Rs.4200/-. It transpires from the record that both the posts of Offset Machine Assistant and DTP Operator carry the GP of Rs.2800/-. Therefore, we do not find any substance in the said contention of the learned counsel for the applicant.
19. In the light of the above discussions, we hold that the applicant has not been able to make out a case for the reliefs claimed by him in the O.A. The O.A. being devoid of merit is liable to be dismissed.
20. Accordingly, the O.A. is dismissed. The interim order stands vacated. No costs.
(RAJ VIR SHARMA) (ASHOK KUMAR) JUDICIAL MEMBER ADMINISTRATIVE MEMBER AN