Central Administrative Tribunal - Cuttack
S B Dash vs Central Ground Water Board on 1 December, 2021
1 OA 452/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH: CUTTACK
O.A.No. 260/000452 of 2019
Present: Hon'ble Mr. Swarup Kumar Mishra, Judicial Member
Hon'ble Mr. T.Jacob, Administrative Member
1. SASHI BHUSHAN DASH,
Aged about 52 years, Group C, S/o. Dukhi Shyam Dash, At-Ruranti,
PO. Kathapatna, Dist. Cuttack -754001, at present working as
Assistant Driller Cum Mechanic, Central Ground Water Board,
Division-X, Bhujan Bhawn, Khandagiri, Bhubaneswar, PIN - 751030
(Odisha).
2. HEMANTA KUMAR SAHOO,
Aged about 52 years, Group C, S/o. Biswanath Sahoo a permanent
resident of Village-Iswara, PO. Dorada, PS-Athagarh, Dist. Cuttack at
present working as Assistant Driller Cum Mechanic, Central Ground
Water Board, Division-X, Bhujan Bhawn, Khandagiri, Bhubaneswar,
PIN - 751030 (Odisha).
3. MADHAB CHANDRA MAHANTA,
Aged about 52 years, Group C, S/o. Late Mukunda Mahanta, At/Po.
Bhuluda, Via-Ukhunda, PS. Turumunga, Dist. Keonjhar, PIN-758 032
at present working as Technical Operator (Drilling), Central Ground
Water Board, Division-X, Bhujan Bhawn, Khandagiri, Bhubaneswar,
PIN - 751030 (Odisha).
4. GOLEKHA KANDI,
Aged about 45 years, Group C, Son of Gandharba Kandi resident of
At/Po. Narua, PS-Gop, Dist. Puri at present working as Technical
Operator (Drilling), Central Ground Water Board, Division-X,
Bhujan Bhawn, Khandagiri, Bhubaneswar, PIN - 751030 (Odisha).
5. SHIBA PRASAD SAHOO,
Aged about 52 years, Group C, S/o. Bhikari Charan Sahoo, At/Po.
Banguari, Ps. Balianta, Dist. Khurda-754 001, working as Driller Cum
Mechanic, Central Ground Water Board, Division-X, Bhujan Bhawn,
Khandagiri, Bhubaneswar, PIN - 751030 (Odisha).
6. AJIT KUMAR OJHA
aged about 45 years, Group C at present working as Assistant Driller
Cum Mechanic, Central Ground Water Board, Division-X, Bhujan
Bhawn, Khandagiri, Bhubaneswar, PIN - 751030 (Odisha).
7. INDRASMANI MALLICK,
Aged about 50 years, Group C, S/o. Bhramarbara Mallick, At-
Padatira, PO. Kasarda, PS-Niali, Dist. Cuttack at present working as
Assistant Driller Cum Mechanic, Central Ground Water Board,
2 OA 452/2019
Division-X, Bhujan Bhawn, Khandagiri, Bhubaneswar, PIN - 751030
(Odisha).
8. PRAKASH CHANDRA BEHERA,
Aged about 51 years, Group C, S/o. Gurubari Behera, At/Po.
Rushipoda, Via/PS. Kanpur, Dist. Cuttack at present working as
Assistant Driller Cum Mechanic, Central Ground Water Board,
Division-X, Bhujan Bhawn, Khandagiri, Bhubaneswar, PIN - 751030
(Odisha).
9. SANTOSH PAIK,
Aged about 51 years, Group C, S/o. Chita Paik, At/Po. Dipitpur, Via-
Melchhamunda, Dist. Bargarh-768 035 at present working as
Assistant Driller Cum Mechanic, Central Ground Water Board,
Division-X, Bhujan Bhawn, Khandagiri, Bhubaneswar, PIN - 751030
(Odisha).
10. DURYODHAN JENA,
Aged about 54 years, Group C, S/o. Late Mukunda Jena, a permanent
resident of At-Baliagoda, Po. Dhrupada, Via-Raisuan, Keonjhar, PIN-
758013 at present working as Technical Operator (Drilling), Central
Ground Water Board, Divison-X, Bhujal Bhawan, Khandagiri,
Bhubaneswar-751030 (Odisha).
.....Applicants
Through Legal practitioner :M/s. J.M.Pattnaik, J.R.Behera,
Advocates.
-Versus-
1. The Secretary, Ministry of Water Resources (RD &GR), Government
of India, At-Shrama Sakti Bhawan, New Delhi-110 001.
2. The Chairman, Central Ground Water Board, Government of India,
Bhujal Bhawan, NH-IV, Faridabad-1, PIN-121001.
3. The Director Administration, Central Ground Water Board,
Government of India, Bhujal Bhawan, NH-IV, Faridabad-1, PIN-
121001.
4. The Regional Director, Central Ground Water Board, Government of
India, South Eastern Regoin, Bhujal Bhawan, Khandagiri,
Bhubaneswar, PIN-751 030.
5. Executive Engineer, Division No. X, Central Ground Water Board,
Bhujal Bhawan, Khandagiri, Bhubaneswar-751 030.
6. Administrative Officer, Governmnet of India, Ministry of Water
Resources, RD & GR, Central Ground Water Board, N.HIV,
Faridabad-121001.
.....Respondents
Through Legal practitioner :Mr. M.R.Mohanty, Counsel
3 OA 452/2019
Reserved on: 03/08/2021 Pronounced on: 01/12/2021
ORDER
MR.SWARUP KUMAR MISHRA, MEMBER (JUDL.) Applicants' case, in nutshell, is that they are working as Technical Operator of Drilling (TOD). The Post of Welder was not the feeder post of Assistant Driller Cum Mechanic (ADCM). As per Recruitment Rules, 90% post of ADCM was/is to be filled up from among the employees of TOD and 10% from Compressor Operator. The post of TOD as per the Rules filled in by way of direct recruitment having the eligibility condition/criteria Matriculation with ITI whereas the post of Welder is filled up with the qualification of non matriculate. The Ministry vide letter dated 12/09/2005 accorded approval to the merger of 102 sanctioned posts of Welder with 250 sanctioned post of ADCM w.e.f. 01/01/1996. CGWB amended the Recruitment Rule for the post of ADCM and DCM in 2006 and 2007 respectively and fixed the inter se seniority of ADCM and Welder without considering the cases of applicants who are continuing as TOD long since thereby blocking their avenues of promotion. It has also been alleged that as per pre amended rule for promotion from TOD to ADCM, 10 years regular service was the pre requisite qualification. There were 250 sanctioned posts of ADCM before the amended Rule came into force. All the applicants were eligible as per the pre existing rules to be promoted. The said vacancies ought to have been filled up by pre amended rules but not the amended rules which came into effect much later. Thus by allowing the welder to occupy the vacancies meant for the Applicants their interest was adversely affected. In this regard, the Applicants have relied on the decision of the Hon'ble Apex Court in the cases of P.Mahendran v State of Karnataka, 1990 AIR 405 and Y.V.Rangaiah v J.Sreenivasa Rao (1983) 3 SCC 284 to justify that filling up of the vacancies existing prior to amendment rule came into effect by the amended rule is bad in law.
4 OA 452/2019
2. The Applicants had earlier filed OA No. 353 of 2018 which was disposed of on 10/07/2018. Operative part of the order reads as under:
"7. Therefore, we are of the view that ends of justice would be met if we dispose of this OA at this stage with direction to the Respondent No.2 to consider the grievance of the Applicants, keeping in view the discussions made above and communicate the decision in a well reasoned order to the Applicants within a period of 60 (sixty) days from the date of receipt of a copy of this order. We hope and trust that the Respondent No.2 shall do well to defer the DPC, if at all it is going to be convened in the meantime till a decision is taken in the matter. Ordered accordingly. No costs."
Respondents considered the representation of the Applicant and communicated the decision vide order dated 31st August, 2018 under Annexure- A/2. Full text of the order is reproduced herein below:
Sub: Petition against the merger of Welder into ADCM to DCM and fixation of seniority thereof - regarding The Hon'ble CAT, Cuttack Bench, Cuttack has passed an Order on 10.07.2018 in O.A. No.260/353/2018 and M.A. No.260/209/2018 filed by S. B. Dash & Ors V/S Union of India. The operative part of the judgment/order is re-produced as under:-
"Therefore, we are of the view that ends of justice would be met if we dispose of this OA at this stage with direction to the respondent No.2 to consider the grievance of the applicants, keeping in view the discussions made above and communicate the decision in a well reasoned order to the Applicant s within a period of 60 days from the date of receipt of a copy of this order. We hope and trust that the Respondent No.2 shall do well to defer the DPC, if at all it is going to be convened in the meantime till a decision is taken in the matter."
In this context, point wise reply to the representations submitted by the applicants to this OA is placed as under:-
Point No-1: Particularly, TO(D)/TOM/TOS, the backbone of the drilling unit/divisional set-up of the Department are being deprived from the time of the 4th CPC. Even Nothing has been considered in last 7th CPC.
Reply: The post of 'Welder' in CGWB came into existence in 1976 while the post of TOD in CGWB came into existence in 1987 only. Welder was a feeder post for promotion to the post of ADCM while TODs previously designated as 'Work-charged helpers' was the feeder post of 5 OA 452/2019 the post of 'Mate' which in turn used to get promotion to the post of ADCM as per RRs of ADCM notified in 1976.
Point No-2: When educational qualification of Peon, Chowkidar, Safaiwala and Welder were non-Matric qualification at that time, TODs education qualification was matriculate with desirable ITI. Normally at the time of recruitment only the ITI holders are given preference in the interview from the scrutiny level till end of personal interview by the committee. And these desirable qualification of ITI automatically had become essential in the eyes of Board and accordingly the candidates were got selected in the interview in merit list.
Reply: the petitioners (TODs) on one hand are trying to establish that their technical know-how is superior than the employees who were previously holding the post of Welder and have been redesignated as 'ADCM' due to merger of the post of Welder and ADCM. On the other hand, they want the government to accept that their matriculation qualification is superior to the ITI qualification of 'Welders'. After merger of the posts of Welder with 'ADCM', a seniority list as on 1.1.2006 was prepared according to which 134 previous ADCMs (out of 232) were having Under-Matric qualification, and only 19 ADCMs were having any technical qualification.
The principal RRs for the post of Welder were notified vide GSR No.1131 dated 31.7.1976, according to which the ITI was essential qualification for recruitment as Welder. The qualification for recruitment was Welder was never a non-matriculation only.
The ITI was only a desirable qualification for TO(D)s till 2017. As on 1.1.2018, 262/550 TO (D)s were having an ITI or any other technical qualification.
Thus, the petitioners' submission that educational qualification of 'Welder' was non-matriculation, at any stage, is wrong.
Point No.3: During the year 2006, Welder became ADCM by the way of merging Welder with ADCM without any field experience and within 10 years of service all Welders jumped over to DCM with a great financial benefit but the TODs remained the same.
Reply: Before merger, the 'Welders' were performing welding-job at the workshop as well as at the Drill sites for fabrication of well assembly and lowering of Assembly. After merger they were exposed to extra duty of 'drilling' which was field-based. Further, the merger did not imply any financial burden on the government because the posts of 'Welder' and 'ADCM' carried the same pay-scale even before the merger.6 OA 452/2019
On the other hand, the post of TO(D) always carried a pay scale and entry-qualification' lower to that carried by the post of 'Welder'. In 5th CPC, when the post of 'Welder' carried a pay-scale of Rs.4,000-6,000 and essential entry- qualification of ITI, the post of TO(D) was carrying a pay- scale of Rs.2650-4000/- and essential entry-qualification of matriculation only. Further, no issue regarding under- utilisation of the incumbents of the post of TO(D) was in existence at that time.
Further, it may also be seen that a set of RRs fro the post of DCM was notified vide GSR No.162 dated 8.5.2004, whereby the post of 'Welder' was made one of the feeder post, along with the post of ADCM, for the promotion to the post of DCM.
Thus, even if the 'Welders' enjoyed the consequential benefit of quick further promotion to the post of DCM, the government as a whole was at a gain only, because Welders were now shouldering higher responsibility of the jobs of ' 'Welding and Drilling' without payment of any extra remuneration/salary.
Point No. 4: Prior to this promotional avenue of TOD to ADCM was 100%.
Reply: As per RRs for the post of ADCM notified vide GSR No.654 dated 22.8.1987, the vacancies of ADCM were to be filled up 100% by promotion from feeder grades of Welder., Compressor Driver and TO(D), with respective quota of 15%, 10% and 75%. The post of Compressor Driver was later on merged with the post of TO(D) and this status continued till merger of the post of 'Welder' with 'ADCM' in 2006.
Point No.5: After merging of Welder to ADCM and again re-designated as DCM, the scenario of the Department is within 10 years is completely changed and all welders became DCM and getting promotion to the post of DIC through DPC, but the TODs are suffered and unchanged even if after serving 30 years or more in the department. Only MACP-I, MACP-II & MACP-III with little bit enhancement of Grade pay i.e. Rs. 100/- and after 7th CPC accordingly pay fixation was made.
Reply: All the 73 incumbents of the posts of Welder, en-block, were junior only to 5(five) ADCMs after retrospective merger of the posts of 'Welder' with 'ADCM' in 2006 with effective date of merger as 1.1.1996. The remaining got consequential benefit of promotion to the pos of DCM earlier than most of the ADCMs and all the TO(D)s , but as explained at S.No.2 above, the merger of the posts of 'Welder' and 'ADCM' was in interest of department/government only and petitioners' grievance 7 OA 452/2019 regarding grant of more benefit in 'Welders' is not correct and cannot be accepted.
Point No.6: The matter of above anomaly of pay scales has been reported by proper forum to the pay Anomaly Committee constituted in the Ministry of Water Resources during the month of April 1999. The Anomaly Committee agreed and recommended for upgradation of pay scales of Rs.950-1500 (Revised Rs.3050-4590). The Department of Expenditure, Ministry of Finance has not conveyed their concurrence to the recommendations for years and advised to refer the matter of anomalies to 6th CPC. But, 6th CPC did not consider any anomalies arose out of the recommendations of 5thCPC.
Reply: The petitioners' have not provide any documentary proof to their contention about anomaly committee's recommendation. However, it is seen that even if their contention is accepted the pay scale of Rs.3050-4590 was not eligible for merger with Welder's /ADVM's pay scale of Rs.4000-6000/-.
Point No.7: The promotional avenue of TOD and Welder was same i.e. ADCM, DCM, DIC. The Anomaly Committee recommended the scale of TOD : 3050-4590, ADCM: 4500-125-7000 , DCM: 5000-150-8000, which was pending in Ministry. But, department merged the 'Welder' post with 'ADCM' by abolishing the 'Welder' post and changed their scale to Rs.4000-100-6000/-.
Reply: does not need any reply/clarification. Point No.8: A detailed comparison table between 'TO(D)' & 'Welder' in CGWB is prepared and annexed herewith.
Reply: The principal RRs for the post of ADCM were notified in 1976, wherein the post of 'Mate' was the feeder post for promotion to it. The post of 'Work Charge helper' was never a feeder post for promotion to the post of ADCM. However, the incumbents of the post of Work charged helper used to get promotions to the post of 'Mate' at the time of 'Mate' at the time of 3rd CPC.
The 3rd CPC tabled its report before government in March - 1973, while the post of Welder came into existence in July-1976 and essential entry qualification for it was ITI at that time. As per 1987 RRs for the post of ADCM, Welder was feeder post for promotion to it.
Thus, the comparison table provided by the petitioners does not establish any equivalence/ supremacy of the post of TO(D) with/over the post of Welder.
Point No.9: In this connection the following documents are enclosed for your ready reference and further consideration.8 OA 452/2019
Annexure-I : Report on case History Reply: The case history provided by the petitioners is replete with errors, some of which are as per the principal RRs, the post of Mate was the feeder grade for promotion to the post of 'ADCM', which in turn was the feeder grade for promotion to the post of 'ADCM', which in turn was filled up by promotion from the post of 'Work charge Helper'. The post of Work charge Helper was later redesignated as TO(D).
Annexure-II: Disparity in salaries because senior employees got less salary than juniors/ inexperienced cadres forced to perform duties beyond their capabilities.
Reply: No example/document has been provided by the petitioner to support this statement. However, it is presumed that they mean to say that the 'Welders' who have been re-designated as 'ADCM' as a result of merger, are not experienced for the field-work related to the post of 'ADCM'.
In this connection, it is submitted that after merger of 'Welder' & 'ADCM' posts a seniority list, as on 1.1.2006 was issued according to which only 19-ADCMs (out of 232) were having some Technical Qualification and of remaining 213-ADCMs, 134 were having under-Matric qualification.
Further, it is also submitted that as per the said seniority list on 1.1.2006, only 05 (five) ADCMs were appointed before the senior most 'Welder'. All the remaining ADCMs were appointed as ADCM only after the junior most 'Welder'.
Annexure III&IV: Ground of Relief and Pay scales of
3 and 4th CPC.
rd Reply: Not explained by petitioners. However, it is observed that the principal of 'Equal pay for equal work' is not breached in the process, because juniors cannot claim parity of pay with seniors on the grounds that the nature of jobs performed by them are same/similar. Pay scale and educational qualification attached to the post of Welder are higher than that of 'TODs' since inception. Thus, claim of petitioners (TODs) for parity of pay scale with that of Welder after 30 years of inception, holds no ground. Instead of the set of duties attached to a post, it is the method of recruitment and qualifications attached to it which are decisive regarding the pay scale to be attached to it.
Thus, petitioners' mention of pay scales and duties of 'Sweeper' and 'Peon', in this petition is totally irrelevant. The Petitioners want the government to accept that their qualifications were superior to that of 'Welder'. In this connection, the seniority list of ADCM as on 1.1.2006 shows that 134 previous ADCMs were possessing under- 9 OA 452/2019 Matric qualification and only 19 were having any kind of technical qualification.
As such, the contention of the petitioners that they are technically stronger than 'Welder' is not acceptable.
Annexure -V: Pay scale of 4th, 5th and 6th CPC and corresponding Grade Pay.
Reply: No comments required.
Annexure-VI: Comparison table of TODs and Welder in CGWB Reply: The post of TOD came into existence in 1987 i.e. at the time of 4th CPC. The erstwhile 'Work charge helpers' were redesignated as TOD. Before this the 'Work charge helper' post was feeder post for promotion as 'Mate', which in turn was feeder post for promotion to the post of 'ADCM'. The promotional avenue of TOD has not changed since its inception. Only the post of 'Welder' has been merged with its promotional post of 'ADCM' to garner clear benefits for the department, because the 'Welders' were now made to perform extra duties. There is no mention of non- matric in principal RRs of 'Welder'. Instead ITI (Welding) was the required essential qualification, which by no means can be conserved as inferior to 'matriculation'. The post of 'Welder in CGWB was a group-C post since its inception in 1976.
Annexure-VII: Comparative statement of pay scale of Technical Operators of CGWB GSI and Kalasi in Railways.
Reply: The RRs for the posts of TOD in GSI and Khalasi skilled-III have not been provided by the Petitioners. Thus, their equivalence with TODs of CGWB cannot be analysed/established, in absence of principal RRs of the said posts and their subsequent amendments.
In addition to the above, it is informed that both TO(D) and Welder were feeder cadre of the post of ADCM. As per Recruitment Rule during 4th CPC, ADCM post were filled form TO( D), Welder and Compressor Operator in the ratio of 75%;15%:10% respectively and the pay scale of TO ( D) was Rs. 750-12-870-EB-14-940 and that of Welder was Rs. 1150-25-1500/-. During 5th CPC the pay scale of TO(D) was fixed at Rs. 2650-65-3300-70-7000/- and that of ADCM and Welder was fixed at Rs. 4000-100-6000/-. Thus, Welders who were feeder grade of ADCM in 4th CPC came at par with ADCM i.e. 4000-100-6000/-.
. The posts of Welder and ADCM were also merged for optimum utilization of Welders in the field of drilling operations as well as welding jobs can be undertaken as they were restricted to do only welding job which is not a full time job for them. By merging the posts, welders can 10 OA 452/2019 perform the duties on drilling rigs, thereby gaining experience from the drilling sites, prior to their promotion to the post of DCM. Thus, 102 sanctioned posts of Welders were merged with 250 sanctioned posts of ADCM as per Ministry's approval conveyed vide letter No. 25/13/2005- CGWB dated 12/09/2005 and accordingly Welders were redesignated as ADCM in the interest of Government work and policy of the Government."
Challenging and impugning the aforesaid order of rejection, the Applicants have filed this Original Application inter alia praying as under:
".......to quash the order No. 6-03/2018-Engg.Estt.-5266 dated 31/08/2018 rejecting the claim of contrary to the order of this Hon'ble Tribunal dated 10/07/2018 in OA No. 353 of 2018;
To declare that the law laid down by the Hon'ble Apex Court in the cases of P.Mahendran vs State of Karnataka, 1990 AIR 405 and Y.V.Rangaiah v J.Sreenivasa Rao (1983)3 SCC 284 to the effect that vacancies available prior to amendment will have to be filled up by the pre amended rules is binding on the Respondents as per the mandate enshrined in Article 142 of the Constitution of India;
And declare that effecting the merger of WELDER to ADCM w.e.f. 01/01/1996 instead of 06/06/2009 is bad in law;
And/or to declare filling up of the vacant posts of ADCMs existing prior to 06/06/2009 instead of 01/01/1996 with WELDER is bad in law being contrary to the law laid down by the Hon'ble Apex Court;
To declare the decision of merger of welder to ADCM without considering the cases of TODs is ultra vires to constitution of India;
To direct the Respondents to promote the applicants to the post of ADCM from the date the welders were allowed to occupy the post of ADCM with all consequential service and financial benefits retrospectively;
And further be pleased to pass any other order/orders as deemed fit and proper;
And to allow this OA with costs."
3. Respondents have filed their counter inter alia stating that the post of TOD came into existence in 1987 in CGWB and the applicants were appointed as TOD within the year 1987 to 1989 and the post of 'Welder' came into existence in 1976 where the essential qualification for appointment as welder was ITI but for appointment to the post of TOD was only ITI as desirable qualification and the 11 OA 452/2019 TODs are previously designated as Work Charged Helper. For promotion to the post of ADCM welder was a feeder post, where the TODs (previously designated as Work Charged Helper) was the feeder post of the post of Mate, which in turn used to get promotion to the post of ADCM as per RRs of ADCM notified in 1976. Ministry vide letter No. 25/3/2005-CGWB dated 12.09.2005 has approved the merger of 102 sanctioned posts of Welder with 250 sanctioned post of ADCM w.e.f. 01.01.1996 (Annexure-R/2). Accordingly, CGWB amended the Recruitment Rules for the post of ADCM and DCM in 2006 & 2007 respectively. After merger w.e.f. 01.01.1996 inter se seniority lit as on 01.01.2006 was issued in which all the incumbents of the post of Welder were placed below the junior most ADCM who joined before 01.01.1996 (Annexure-R/3). It has been stated that out of 232 ADCMs, 134 persons were having undermatric qualification and only 19 ADCMs were having technical qualification. The principal RRs for the post of Welder were notified vide GSR No. 1131 dated 31/07/1976, according to which the ITI was essential qualification for recruitment to the post of Welder. The qualification for recruitment as Welder was never a non matriculate only. The ITI was only desirable qualification of TO(D) till 2017. As on 01.01.2018, 262/550 TO (D) were having ITI or any other technical qualification. Before merger, the Welders were performing welding job at the workshop as well as at the drill sites for fabrication of well assembly ad lowering of Assembly. After merger they were exposed to extra duty of drilling which was field based. Further the merger did not imply any financial burden of the government because the posts of Welder and ADCM carried same pay scale even before the merger. Further it has been stated that promotional avenue of TOD and welder was same i.e. ADCM, DCM, DIC. The Anomaly committee recommended the scale of TOD: 3050-4590/- ADCM: Rs. 4500-125- 7000, DCM :Rs.5000-150-8000 which was pending in Ministry. But department merged the welder post with ADCM by abolishing the welder post and changed 12 OA 452/2019 their scale to Rs. 4000-100-6000/-. Accordingly, respondents have opposed the prayer of the applicants.
4. Applicants have also filed rejoinder along with the copies of the citations relied on in support of the prayer.
5. Heard the arguments advanced by the respective parties and perused the records including the decisions relied on by the learned counsels.
6. Learned counsel for the applicant submitted that since amendment taken place vide GSR 86 on 6.6.2009 and at that relevant time out of 250 sanctioned posts of ADCM 102 posts were lying vacant which ought to have been filled up as per the pre-amended rules as per the decision of Hon'ble Apex Court in the case of P.Mahnndran -vs- State of Karnataka [1990 AIR 405] and Y.V.Rangaiah -vs- J.Sreenivasa Rao [(1983) 3 SCC 284]. In support of his contention that the amendment was effected with effect from 6.6.2009 and not on 1.1.1996, learned counsel for the applicant laid emphasis on the noting obtained by the applicant under RTI Act, 2005 which note has got approval by the highest authority in the Ministry. Hence the learned counsel for the applicant has prayed for the relief claimed in the OA.
7. On the other hand learned counsel for the respondents has submitted that some of the employees like the present applicants have approached before CAT Jodhpur Bench in OA No. 50/2006 and OA No. 63/2006 (Onkar Lal Panwar & Ors.
-vs- UOI & Ors. and Chanwar lal Panwar & Ors. -vs- UOI & Ors.). CAT, Jodhpur Bench after taking into consideration the decision in the case of P. Mahendran (supra) and Y.V.Rangaiah (supra) did not interfere on the ground that the amendment was carried out w.e.f. 1.1.1996 and it has been contended that the matter is under consideration before the Hon'ble High Court of Rajasthan. Hence he has prayed for dismissal of the present OA.
13 OA 452/2019
8. The relevant portion of the note is quoted hereinbelow :
"But it is observed that if this merger had not taken place, many of these Welders would have been junior to intermittent TO(D)s on promotion to the post of ADCM. Thus, although the incumbents of the posts of 'Welder' did not get any immediate financial benefit, they were at gain in terms of seniority to TO(D)s and also to 227 ADCMs, who joined the posts of ADCM after 1,.1.1996. Further, it is also submitted that no Gazette notification regarding antedated merger of these posts has ever been published. First RRs for the post of ADCM, after merger of the post of 'Welder' with it, were notified vide GSER No. 86 dated 6.6.2009. Thus, the date of effective merger of the posts of 'Welder' and 'ADCM' is 6.6.2009 and not 01.01.1996.
Further, it is also submitted that as the matter is already subjudice before Jodhpur High Court vide two (2) Nos. separate OAs filed by Sh. Onkar Singh Panwar and Sh. Bhanwar Lal Bhati, ADCMs. Tjhus, we have no other option then to wait for final outcome of those cases."
9. We find that nothing has been whispered in the counter or in the notes of submissions filed by the respondents relating the specific case of the applicant that as per the notes the amendment was carried out w.e.f. 6.6.2009 vide GSR 86 and not 1.1.1996. From the order of CAT, Jodhpur Bench it is seen that this aspect of the matter was not placed before the Jodhpur Bench. No matter has been placed that after obtaining the noting quoted above the applicants have ever raised their grievance before the competent authority that the amendments were carried out w.e.f. 6.6.2009 and not 1.1.1996. We may record that as per the law laid down in the case of P.Mahendran (supra) vacancies existing prior to the amendment are to be filled up by the pre-amended rules is a settled position of law.
10. For the discussions made above, we have no option but to quash the impugned order of rejection No. 6-03/2018-Engg.Estt-5266 dated 31.8.2018 and remit the matter back to the respondent No.2 to consider the matter in its entirety keeping in mind the approval note vide Annexure A/3 (No. 6-03/2018-Engg.Estt- 5266) and the settled position of law that vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules and communicate the result of such consideration in a reasoned and speaking order 14 OA 452/2019 to the applicants within a period of 45 days from the date of receipt of copy of this order.
11. In the result this OA stands allowed to the extant stated above. No costs.
(T.JACOB) (SWARUP KUMAR MISHRA) MEMBER (A) MEMBER (J) I.Nath