Central Administrative Tribunal - Ernakulam
M K Venugopalan vs All India Radio on 18 May, 2023
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00278/2016
Thursday, this the 18th day of May, 2023.
CORAM:
HON'BLE Mr. JUSTICE K.HARIPAL, JUDICIAL MEMBER
HON'BLE Mr. K.V.EAPEN, ADMINISTRATIVE MEMBER
M.K. Venugopalan, S/o. Rajappan Pillai
Aged 52 years, Motor Lorry Driver
Civil Construction Wing
All India Radio & TV, Kochi
Residing at 'Maliekkal House'
North Irimpanam PO
PIN-682 309, Ernakulam. - Applicant
[By Advocate: Mr. R. Sreeraj]
Versus
1. Union of India represented by the Secretary to
Government of India, Ministry of Information &
Broadcasting, New Delhi-110001.
2. The Prasar Bharati Broadcasting Corporation of India
represented by its Director General, All India Radio
New Delhi-110001.
3. The Superintending Engineer (Civil), Civil Construction
Wing, All India Radio, Chennai-600001.
4. The Station Engineer, All India Radio,
Thiruvananthapuram-695030.
5. The Executive Engineer, Civil Construction Wing
All India Radio & TV, Kakkanad, Kochi-37.
- Respondents
[By Advocate: Mr. N.Anilkumar, SPC]
The application having been heard on 10.03.2023, the Tribunal
on 18.05.2023 delivered the following:
O.A No.278/2016 2
ORDER
Justice K.Haripal Applicant is a Motor Lorry Driver Grade II of the Civil Construction Wing, for short, CCW, of All India Radio, Kochi, for short, AIR. It is the common case that he had commenced his service as casual labourer on 21.09.1984. When he was terminated on 10.09.1987, he approached this Tribunal with O.A.246/1988. The O.A. was disposed of directing the respondents to consider the case of the applicant for appointment in any of the Group D or Group C posts which were vacant or which will fall vacant. Thereafter, he was appointed as a Peon in Group-D on 08.09.1989 in the CCW of the AIR. On 16.10.1990 he was engaged to work as Motor Driver (Group C) and was later appointed as Group C Driver in the work charged establishment with effect from 30.07.1991. While so, he approached this Tribunal again with O.A.236/2000 seeking promotion as Driver Grade II with effect from 16.12.1999. That O.A. was dismissed and the Original Petition filed against that decision before the High Court was also dismissed. Thereafter, he submitted a representation to the competent authority seeking promotion as Driver Grade II. When that was not favourably considered, he filed O.A.746/2004 claiming grade promotion as Driver Grade II with effect from 30.11.2000. By Annexure-A1 this Tribunal disposed of that O.A. directing to consider and dispose of the representation. When that was rejected, he moved again with O.A.125/2005, which was allowed on O.A No.278/2016 3 03.11.2006 through Annexure-A1 order. By the said order, the respondents were directed to reconsider the claim of the applicant in accordance with the provisions of the Recruitment Rules against vacancies that had arisen after he had become fully qualified and to promote him to the post of Driver Grade-II, if qualified, subject to availability of vacancy. Thereafter, by Annexure-A2 order dated 30/17.6/7.2009, the applicant and six others were granted promotion as Grade II Driver in the scale of pay of Rs.4000-6000 with effect from 03.11.2006. Then by Annexure-A3 dated 11.08.2009 his pay was fixed at Rs.8,300/- in PB-1 with grade pay of Rs.2,400/- with effect from 03.11.2006. Then under Annexure-A4 dated 08/09.06.2011 he was granted grade promotion fixing his pay at Rs.4,000/- with effect from 30.07.2000. According to the applicant, by virtue of Annexure-A4 read with Annexure-A2 his promotion as Driver Grade II granted as per Recruitment Rules with effect from 03.11.2006 was pre-poned to 30.07.2000 on extension of the benefits of the time bound promotion scheme. Thus, though belatedly, according to him, the claim raised through O.A.125/2005 was granted on completion of 9 years as Driver. Annexures-A5 is the time bound promotion scheme for Staff Car Drivers and Annexure-A6 is the Modified time bound promotion scheme prevalent in Central Public Works Department, which is applicable to the applicant. Thereafter, he was granted 2 nd MACP on 30.07.2010. Under Annexure-A9 he was granted Selection Grade, following Annexure-A8, O.A No.278/2016 4 with effect from 30.07.1999. Thereafter, he gave Annexure-A10 representation which was rejected by Annexure-A11. According to the applicant, he should have been placed in Driver Grade I with effect from 30.07.2005 and Driver Special Grade with effect from 30.07.2008. But by Annexure-A11 that was rejected stating that he could not have been granted such promotion for want of vacancy. Such a stand taken by the respondents is illegal, arbitrary, unjust, unreasonable, irrational and violates Articles 14 and 16 of the Constitution. The respondents are deliberately mixing up promotion under the Recruitment Rules with time bound promotions, which was done by them earlier also. While functional promotions under the Recruitment Rules are vacancy bound, his placement in the same scales under the time bound promotions are dependent only on completion of specified number of years of service in a particular grade. This is evident from Annexure-A12. But his representation was rejected illegally and therefore he seeks a declaration that refusal on the part of the respondents to consider the case of the applicant for placement as Driver Grade I and Driver Special Grade with effect from 30.07.2005 and 30.07.2008 respectively is illegal and to direct the respondents to consider the case and pass orders within a time frame.
2. The respondents filed a reply statement denying the contentions of the applicant. It is true that the applicant is working as a Work Charged Motor Driver Grade II in work charged cadre which is O.A No.278/2016 5 governed by the provisions of the CPWD Manual Volume III and grant of pay scales and or any other anomaly to any work charged staff in CCW has to be dealt strictly as per the guidelines set forth in CPWD Manual only. They have relied on Annexure-R1(a) communication in this regard. According to them, he was granted Grade II after completion of 8 years of service. Now he has requested for Grade I promotion which can be granted after 15 years of service, only if vacancies are available, that also on the basis of seniority cum fitness, as initiated by the 3 rd respondent who is the cadre controlling authority of Work Charged Motor Lorry Drivers. As per Annexure-R1(b) promotion/upgradation has to be given to the Staff Car Drivers as per DoP&T Guidelines on percentage basis and on availability of vacancy in the grade. Therefore, they justify Annexure-A11 order.
3. Later, the respondents filed an additional statement along with Annexures-R1(c) to R1(e) and reiterated their contentions. According to the respondents, the applicant is trying to avail both the facilities, that is (i) placement in Selection Grade which he has already availed with effect from 30.07.1999 followed by grant of 2 nd and 3rd MACP on completion of 18 and 28 years of service as well as (ii) the promotion scheme for Motor Lorry Drivers introduced vide CPWD OM dated 26.02.2003. Both the schemes are seen running concurrently. The applicant is not entitled to avail himself of the benefits in both the schemes. Paragraph 5 pf the promotion scheme dated 26.02.2003 clearly O.A No.278/2016 6 states that the scheme is in lieu of the ACP scheme.
4. On 28.01.2023 the applicant filed a rejoinder contending that the statements of the respondents, the initial one and the additional statement, are mutually contradictory. Annexure-A4 contradicts the contention of the respondents that in Civil Construction Wing of the AIR time bound promotion scheme was not implemented for skilled category, such as Work Charge Motor Lorry Drivers. According to him, a reading of Annexures-A5 and A6 make it clear that appointment to Grade II and Grade I is not dependent on availability of vacancies but on completion of 9 years and 6 years in ordinary Grade and Grade II respectively. The contention that promotion/upgradation has to be given to the Staff Car Driver as per DoP&T guidelines on percentage basis and on availability of vacancies also is incorrect. Annexure-R1(b) or Annexure-A6 has been understood and interpreted wrongly by the respondents. According to them, Annexures-A5 and A6 are time bound promotion schemes which are not vacancy bound but time bound only and therefore, on completion of 15 years and then 3 years the applicant should have been granted Grade I and Senior Grade respectively as claimed by him. Moreover, contentions in the additional reply that there are two schemes running parallel, one with Selection Grade and thereafter MACP benefits and the other Annexure-A6 promotional scheme, is an imagination only. So, according to the applicant, the reliefs sought for are liable to be granted.
O.A No.278/2016 7
5. We heard Sri. R. Sreeraj the learned counsel for the applicant and Sri.N.Anilkumar, learned Senior Counsel for the respondents. They have reiterated the respective contentions.
6. The official profile of the applicant is not in dispute. Following the orders passed by this Tribunal in O.A.246/1988 he was appointed as Peon, a Group-D post on 08.09.1989. It is also claimed that he had been engaged as Driver from 16.10.1990. Whatever it may be, he was posted as a Group D Driver on 30.07.1991 and was promoted as Driver Grade II on 03.11.2006. Later, basing on Annexure-A5, Annexure- A4 was issued under which he was granted grade promotion in the same scale, that is Rs.4000-6000 from 30.07.2000 onwards. In other words, his posting as Driver Grade II and granting of scale of Rs.4000-6000 was advanced by 6 years by Annexure-A4 order. It is very patent that Annexure-A4 grade promotion was granted following Annexure-A5 communication granting grade promotion.
7. As noticed earlier, he was granted grade promotion on 30.07.2020. Thereafter, on 30.07.2010 he was granted 2 nd MACP and was conferred with the scale of Rs.5200-20200 with grade pay of Rs.2,800/-. Again, Annexure-A9 indicates that basing on Annexure-A8 he was granted Selection Grade from 30.07.1999; advancing the promotion granted on 30.07.2000 and 03.11.2006 once again to 30.07.1999. On that basis, his date of 2nd MACP was also advanced to 30.07.2009, by one year in modification of Annexure-A7 order.
O.A No.278/2016 8
8. Now the claim of the applicant is that by virtue of Annexures- A5 and A6 communications, he is entitled to get posts of Driver Grade-I with effect from 30.07.2005 on completion of 15 years and then as Special Grade Driver from 30.07.2008, on completion of further 3 years. This is based on Annexure-A6 scheme. But the respondents have rejected the plea on the ground that, for want of vacancies, such a posting cannot be granted. The correctness of that finding is under challenge.
9. In the additional reply, the respondents have maintained that the applicant was not granted time bound promotion since it was not implemented in the case of Work Charged Motor Drivers. This argument has been seriously contested by the learned counsel for the applicant basing on Annexures-A4 and A9. We have no doubt that the respondents have taken prevaricative stands. The documents produced by the applicant and also some of the documents produced by the respondents indicate that Grade Promotion Scheme was implemented in the establishment of the respondents. Annexures-A4 and A9 are standing testimony for the same. Therefore, we are afraid, how the respondents could be heard to say that such a scheme was not implemented nor the benefit of the same was granted to the applicant.
10. In other words, documents produced by the applicant clearly prove that after promoting him as Driver Grade II, at first he was granted grade promotion with effect from 30.07.2000, basing on the same, 2 nd O.A No.278/2016 9 MACP was granted on 30.07.2010. Later, he was granted Selection Grade. His date of Selection Grade was further advanced to 30.7.1999. On that basis, date of 2nd MACP was also advance d to 30.07.2009.
11. But here the crucial question is whether there is justification in the applicant claiming posting as Grade I on completion of 15 years and then Special Grade on further completion of 3 years. After hearing the learned counsel on both sides and perusing the records we do not find reason to uphold the claim. Firstly, such a scheme was introduced under Annexure-A5 office memorandum dated 30.09.1993. The scheme is known as Promotion Scheme for Staff Car Drivers. By that scheme a device has been formulated for promotion of Staff Car Drivers in three Grades, that is ordinary entry grade with basic pay of Rs.950-1500, then on completion of 9 years of regular service in the ordinary grade as Grade II Staff Car Driver with the then scale of Rs.1200-1800 and on completion of 6 years of regular service as Grade I Staff Car Driver in the scale of Rs.1320-2040. Posting had to be made in the ratio of 55:25:20. In Annexure-A5 it is further stated that method of appointment to the posts in Grade II and Grade I of Staff Car Driver was by promotion on Non- selection (Seniority-cum-Fitness) basis and subject to passing of a trade test of appropriate standard, as contained in Annexure-I to the OM. It is also subject to the application of reservation orders as applicable to the grades. It is also stated that the posting will be done subject to availability of vacancies.
O.A No.278/2016 10
12. Annexure-A5 is dated 30.11.1993, came into force on 01.08.1993. Annexure-A6, the modified promotion scheme for Motor Lorry Drivers dated 26.02.2003, effective from 01.12.2001. Here, four grades of Motor Lorry Drivers were postulated, one is ordinary grade in scale of pay of Rs.3050-4590, then Grade II in Rs.4000-6000, then Grade I with Rs.4500-7000 and lastly Special Grade with scale of pay of Rs.5000- 8000. The ratio of posting the Motor Lorry Drivers is 30:30:35:5. Driver putting in 9 years of regular service in Ordinary Grade is entitled to get the benefits of Motor Lorry Driver Grade II. Then Motor Lorry Driver Grade II putting in 6 years of regular service is entitled to be posted as Motor Lorry Driver Grade I. Similarly, a person who has put in 3 years of regular service in Grade I is entitled to be posted as Special Grade Driver. The method of appointment to the post of Grade II and Grade I of Motor Lorry Drivers will be promotion on non-selection (seniority-cum fitness basis) and will be further subject to passing of a trade test of appropriate standard contained in Annexure-I of the OM. It is also made clear that they have to pass trade test of appropriate standard, that will be subject to the application of reservation orders and that Motor Lorry Drivers who have rendered not less than 15 years of service may be considered for appointment to the post of Grade I direct, to the extent of availability of vacancy in the Grade subject to satisfying other conditions. In paragraph 5 it is stated that Staff Car Driver Scheme has been adopted for the Motor Lorry Drivers of CPWD in lieu of the Assured Career Progression O.A No.278/2016 11 Scheme.
13. From both Annexures-A5 and A6 it is clear that promotion scheme for Drivers had been formulated and different grades of Drivers are indicated to be posted in a particular ratio as stated in Annexures-A5 and A6 for getting promoted to the Higher Grade. Even though it is a non-selection and seniority-cum-fitness basis, it is subject to passing of trade test of appropriate standards prescribed in the OM, rules of reservation are also applicable and availability of vacancy is the sine qua non.
14. The applicant claims for Grade I and then Special Grade as if it is a routine posting on completing 15 years or 18 years of service as the case may be. But after going through Annexures-A5 and A6, especially Annexure-A6, we have no doubt that such an argument cannot be upheld and therefore Annexure-A11 decision cannot be found fault with.
15. Annexures-A5 and A6 are not a time bound promotion as in the case of schemes under ACP or MACP. In both Annexures-A5 and A6 it is not stated that it is a time bound promotion, but it is only a promotion scheme in contrast to time bound promotion. It is a grade promotion; such promotions from the entry grade to the higher grades are conditioned by passing of trade test despite the fact that it is stated that it is non-selection, on seniority-cum-fitness basis. At the same time, a person aspiring for higher grades should pass the trade test; it is further conditioned by the availability of vacancies. To put it in other words, if O.A No.278/2016 12 there are 100 places of drivers, as per the ratio available, only the senior most 5 persons can be posted as Special Grade Drivers. But they should have passed the trade test; availability of vacancies is very inevitable. Similar is the case of Grade I and Grade II Drivers. In other words, if all the posts in the category of Grade I and Special Grade Drivers remain filled, a Driver in the cadre of Grade II, despite the fact that he had put in 15 or 20 years of service in the lower grade, cannot aspire for the higher post even if he satisfies all the other conditions.
16. It is certain that the applicant is moving under a misconception that it is purely a time bound promotion, which is not correct. It is controlled by the stipulations stated in Annexure-A5 and A6. Even though Annexure-A8 is a truncated document, from Annexure- R1(e), which gives the full text, and from Annexure-A6 clause 5 it is clear that such a scheme has been evolved in lieu of the Assured Career Progression Scheme. That means, though the respondents had taken the contention that the Assured Career Progression and this scheme are concurrent, still from paragraph 5 of Annexure-A6 it is clear that such a scheme has been adopted in lieu of the ACP scheme.
17. After going through the promotion scheme and having taken judicial notice of the ACP/MACP scheme, we have no doubt that this promotion scheme remains on a totally different footing. To bear repetition, in Annexures-A5 and A6, it is not stated that it is a time bound promotion, but it is only a grade promotion scheme conditioned by O.A No.278/2016 13 passing of trade test and also a ratio has been fixed for each category or grades. But in time bound promotion such fetters are not incorporated. It is purely time bound, granted as a matter of course where no ratio is fixed. Moreover, in grade promotion scheme, when higher grades are given, nomenclature of the post also change. The post is changed as Driver Grade II, Grade I, Special Grade etc. But in the case of ACP or MACP no such change in nomenclature takes place. It is intended to remove stagnation in categories, without promotion for over 12,24/10, 20, 30 years. Moreover, time bound promotion is purely personal and have no relation with the designation or seniority, etc. To put it in other words, promotion scheme is totally different, even though it also might have been envisaged for the purpose of removing stagnation. Now after the introduction of the ACP scheme, the said scheme has lost its relevance.
18. We are not apprised that the said scheme is still followed in CPWD etc. We are not called upon to pronounce on this aspect. From Annexure-A6 it is very clear that it can be granted only if vacancies are available and therefore the stand taken by the respondents is right and there is justification in rejecting the claim of the applicant the posts of Grade I and Special Grade on completion of 15 and 18 years respectively.
19. No doubt, the respondents do not have a consistent case and have taken different stand. Even though they wanted to convince the Tribunal that the promotion scheme is not implemented in respect of O.A No.278/2016 14 Drivers, Annexures-A4, A8, A9 etc. clearly indicate that the applicant was granted the benefit of the scheme. On that basis, his date of posting as Grade II was also advanced. Thereafter, the date of 2 nd MACP was also advanced.
20. Moreover, it has become very clear that this scheme was implemented in lieu of ACP scheme, once the ACP and MACP schemes were introduced the applicant is not justified in claiming the benefit of the same again. The applicant does not have a case to stand upon and Annexure-A11 is liable to be sustained.
Again, it is the settled proposition of law that without challenging the wrong, remedy for the wrong cannot be claimed. Without challenging Annexure-A11 the applicant wants reliefs of declarations which is not sustainable. In that view also, the Original Application is liable to be dismissed. Dismissed. No costs.
(Dated, this the 18th May, 2023)
K.V.EAPEN JUSTICE K.HARIPAL
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
ds
O.A No.278/2016 15
List of Annexures
Annexure A-1: True copy of the final order dated 3.11.2006 in OA 125/2005 Annexure A-2: True copy of the Memorandum No. SE (C)M-1/ (3)WC(MLD)/2009-S/463 dated 30/6-17/7.2009 issued by the 3rd respondent Annexure A-3: True copy of the Order F. No. EEC/CHN-
1(14)/2007/8/732 dated 11.8.2009 issued by the 5th respondent Annexure A-4 True copy of the Order File No. EEC/CHN/1(14)/2010-S/666 dated 8/9.6.2011 issued by the 5th respondent Annexure A-5: True copy of the time bound promotion scheme of Motor Drivers (Original) dated 30.11.1993 Annexure A-6: True copy of the Modified Time Bound Promotion Scheme of Motor Drivers (Government of India, Directorate General of Works, Central Public Works Department Office Memorandum No. 19/4/2002- EC.X dated 26.2.2003) Annexure A-7: True copy of the Order File No. EEC/CHN.1(18)2011- S/1418 dated 4.10.2011 issued by the 5th respondent Annexure A-8: True copy of the Government of India, Directorate General, Central Public Works Department Office Memorandum F. No. 19/117/2001 (Pt) dated 9.6.2011 Annexure A-9: True copy of the Order No. EEC/CHN-
1(14)/2012/806 dated 12.6.2012 issued by the 5th respondent Annexure A-10: True copy of the representation dated 5.11.2013 submitted by the applicant to the 3rd respondent O.A No.278/2016 16 Annexure A-11: True copy of the Letter No.SE(C)M-1(7)WC/2013- 14/40 dated 16.1.2014 issued on behalf of the 3rd respondent Annexure A-12: True copy of the Order No. 25/04/2014/S-VI/679 dated 23.12.2015 issued on behalf of the Director General, All India Radio Annexure-R1(a) True copy of the letter dated 8.9.2014 Annexure-R1(b) True copy of the letter No.25/06/2016-S-VI/393 dated 30.6.2016 Annexure-R1(c): Tue copy of OM No. SE(T)13(23)/II/WC/CCW/AIR/163 dated 15-06-2011. Annexure-R1(d): An extract of CPWD Manual Volume III Para 9.10 Annexure-R1(e): True Copy of CPWD Office Memorandum No. 19/117/2001 (Pt.) dated 09.06.2011 **********