Central Administrative Tribunal - Ernakulam
V P Mohanan vs M/O Defence on 30 October, 2017
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OANos. 43412016 & 86012015
CENT~AL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00434/2016
&
Original Application No. 180/00860/2015
Monday, this the 30th day of October, 2017
CORAM:
Hon'ble Mr. U.Sarathchandran, Judicial Member
Hon'ble Mr.E.K.Bharat Bhushan, Administrative Member
O.A.No. 434/2016
1. S. Vijayakumar,
S/o. Sukumaran Nair, Aged 55 years,
Leading Fireman, Fire Station,
INS Venduruthy, Naval Base,
Southern Naval Command,
Kochi - 682 004,
residing at Nekkunoor Veedu,
Chenchery, Nalanchira P.O.,
Thiruvananthapuram - 695 015.
2. P. G. Induchoodan,
S/o. Gangadharan Nair, Aged 58 years,
Leading Fireman, Fire Station,
INS Venduruthy, Naval Base,
Southern Naval Command,
Kochi - 682 004,
residing at Panachikkattil Mattathil House,
Pallarimangalam P.O., Pidavoor,
Ernakulam District, Pin - 686 671.
3. P.B. Surendran,
S/o. Balakrishnan, Aged 57 years,
Leading Fireman, Fire Station,
INS Venduruthy, Naval Base, Southern Naval Command,
Kochi - 682 004,
residing at Parambanath House,
Eroor P.O., Kochi - 682 306.
4. K.Ani,
S/o. Kannappan, Aged 50 years,
Leading Fireman, Fire Station,
INS Venduruthy, Naval Base, Southern Naval Command,
Kochi - 682 004,
residing at Ayyankoikkal, Kannanpally Bhagam,
I.K. Junction, Kayamkulam P.O.,
Pin - 690 502.
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OA Nos. 43412016 & 86012015
5. M.V. Jijith,
S/o. Velayudhah, Aged 35 years,
Leading Fireman, Fire Station,
INS Venduruthy, Naval Base, Southern Naval Command,
Kochi - 682 004,
residing at Mangalassery House,
Thiruvankulam P.O., Ernakulam District, Pin - 682 305.
6. T. Vipin,
S/o. K.P. Nandakumar, Aged 28 years,
Fireman, Fire Station,
INS Venduruthy, Naval Base, Southern Naval Command,
Kochi - 682 004,
residing at Nandanam House,
Palluruthy P.O., Kochi - 682 006.
7. Bijeesh Babu,
S/o. Jayachandrababu, Aged 35 years,
Fireman, Fire Station,
INS Venduruthy, Naval Base, Southern Naval Command,
Kochi - 682 004,
residing at Kandathil, Muhamma P.O.,
Alappuzha - 688 525.
8. S. Ratheesh,
S/o. Soman, Aged 28 years,
Fireman, Fire Station,
INS Venduruthy, Naval Base, Southern Naval Command,
Kochi - 682 004,
residing at Somapurath, Kannampally Bhagam,
Kayamkulam P.O., Pin - 690 502.
9. S. Sunilkumar,
S/o. T.S. Sasidhara Kurup, Aged 28 years,
Fireman, Fire Station,
INS Venduruthy, Naval Base, Southern Naval Command,
Kochi - 682 004,
residing at Tharaveettil Puthenveedu,
Nirartam North P.O., Thiruvalla,
Pathanamthitta District, Pin - 689 621 .
. 10. P.N. Mruthyurtjayan,
S/o. P.E. Narayanan, Aged 48 years,
Fireman, Fire Station,
INS Venduruthy, Naval Base, Southern Naval Command,
Kochi - 682 004,
residing at Pulitharanikathin House,
Mulavukadu P.O., Ernakulam District, Pin - 682 504.
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OA Nos. 43412016 & 86012015
11. A. Syam,
S/o. Aravirtdakshan Pillai, Aged 31 years,
Fireman, Fire Station,
INS Venduruthy, Naval Base,Southern Naval Command,
Kochi - 682 004,
residing at Thakidiyil House,
Kuruppankulangara P. 0 ., Cherthala, '
Alappuzha, Pin - 688 551.
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12. M. Ramesh,
S/o. Muthappan, Aged 34 years,
Fireman, FireStation,
INS Venduruthy, Naval Base, Southern Naval Command,
Kochi - 682 004,
residing at PRA 82, Puthuval Puthanveedu,
Parottukonam, Nalanchira P.O.,
Thiruvananthapuram - 695 ()15.
13. R. Vijayachandran,
S/o. Ramachandran Nair, Aged 31 years,
Fireman, Fire Station,
INS Venduruthy, Naval Base, Southern Naval Command,
Kochi- 682 004,
residing at Pulimoottil House,
Puthiyavila, PattoliMarket P.O.,
Alappuzha - 690 531.
14. Siji Sebastian,
S/o. Sebastian, Ag.ed 35 years,
Fireman, Fire Station,
INS Venduruthy, Naval Base, Southern Naval Command,
Kochi - 682 004,
residing at Kunnatha Parambu, Cheruvaranam,
Varanam P.O., Cherthala,
Alappuzha, Pin - 688 555. Applicants
(By Advocate - Mrs. K.R. Krishnakumari)
Versus
1. The Union of India represented by
the Secretary to the Government of India,
Ministry ofDefence, New Delhi - 110 001.
2. The Chief of Naval Staff,
Naval Headquarters, New Delhi - 110 001 .
.3. The Flag Officer Commanding in Chief,
Southern Naval Command,
Kochi - 680 004.
4. V.P. Mohanan,
Aged 59 years, S/o. Padmanabhan,
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OA Nos. 43412016 & 86012015 ·
Fire Engine Driver, Fire Station,
INS Vendm;uthy, Naval Base,
Cochin - 682·004, ·
residing at Vadakke Athir Kandathil,
Thekkumbhagom, Tripunithura P.O~,
Emakulam District, Pin - 682 301.
· 5. V.T. Sunil Kumar, .
Aged 40 years, S/o. Thankappan,
Fire Engine Driver, Fire .Station,
NAD,Aluva,
residing at Vadakkedan House,
Velupadam P.O., Trichur - 680 303.
6~ · T. B. Vinod Kumar,
Aged 47 years, S/o. Bhaskaran,
. / Fire Engine Driver, Fire Station,
·NAD, Aluva,
residing at Thermala Thadathil,
Pattimattom P.O., Emakulam District, Pin - 683 562.
7~ Dileep Kumar K.R.,
Aged 48 years, S/o. V.K. Rajan (late),
Fire Engine Driver, Fire Station,
NAD,Aluva,
residing at Kunnathuparambil,
Pachalam P.O., Emakulam District, Pin - 682 012. .. ... Respondents
(By Advocate-:-Mr. N. Anilkumar Sr;PCGC (Rl to R3))
(By Advocate - Mr. T.C. Govindaswamy (R4 to R7)
O.A.No. 860/2015
I. V.P. Mol).anan,
Aged 58 years,.S/o. Late Padmanabhan,
Fire Engine Driver, Fire Station,
· INS Vendui-uthy, Naval Base,
Cochin- 682 004,
Residing at Vadakkeathir Kandathil,
Thekkumbhagom; Tripunithura P.O.,
Emakulam District.
2. G. Unnikrishnan,
Aged 53 years, S/o. Govindan,
Fire Engine Driver, Fire Station,
Naval Armaments Depot (NAD), Aluva,
Residing at Nediyath House, Karthikappally P.O.,
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OA Nos. 43412016 & 86012015
Alappuzha District - 690 516.
3. V.K. Unni,
Aged 58 years, S/o. Krishnan,
Fire Engine Driver, Fire Station, INS Dronacharya,
Kochi - 682 001,
Residing at Vattarambath House, Panangad P.O.,
Ernakulam District - 682 506.
4. K.J. Denny,
Aged 50 years, S/o. Joseph,
Fire Engine Driver, Fire Station,
Naval Armaments Depot (NAD), Aluva,
Residing at Kanjirathinga! House,
Kanjoor P.O., Aluva Taluk-683 057. Applicants
(By Advocate - Mr. T.C. Govindaswamy)
Versus
I. Union of India,
Represented by the Secretary to Government of India,
Ministry ofDefence (Navy),
New Delhi- 110 001.
2. The Chief of Naval Staff,
Integrated Head Quarters,
Ministry of Defence (Navy),
New Delhi - 110 011.
3. The Flag Officer Commanding-in-Chief,
·Head Quarters Southern Naval Command,
Naval Base, Kochi - 682 004.
4. The Chief Staff Officer (P&A),
Head Quarters, Southern Naval Command,
Kochi - 682 004.
5. P.K. Vijayan Pillai,
Station Officer, Fire Station, INS Venduruthy,
Naval Base, Kochi - 682 004. ..... Respondents
(By Advocate-Mr. N. Anilkumar Sr. PCGC(Rl.to R4))
The above Original Applications having been finally heard jointly on· 11.10. 2017, the
Tribunal on 30.10.2017 delivered the following:
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OANos. 43412016 & 86012015
ORDER
Per: E.K. Bharat Bhushan, Administrative Member O.A.No. 434/2016 is filed by 14 applicants who are working as Leading Fireman/Fireman under the Southern Naval Command, Kochi challenging Column No. I 0 of Serial No.3 in the Schedule appended to the Indian Navy J(Group D and Group C) Firefighting Staff Recruitment Rules, 1982 issued by the first 'respondent.
2. O.A.No.860/2015 has been filed by four applicants who are working as Fire Engine Drivers under the Indian Navy challenging Annexure A1 order dated 31.3.2015 for promotion to the post of Station Officer from Leading Firemen Stream and Annexure A2 order dated 21.9.2015 promoting one P.K. Vijayan Pillai, Leading Fireman to the post of Station Officer.
3. Since the issue involved in both these 0.As is one and the same, these O.As are disposed of through a common order.
4. The reliefs sought in OA No. 434/2016 are as under:
(a) to call for the records relating to Annexures Al to A5 and to quash Column No.JO in Serial No.3 in the schedule appended to Annexure A 1 Recruitment Rules to the extent of including the cadre ofFire Engine Driver in the feeder category for promotion to the post ofSupervisor (Fire) since the same is in clear violation ofArticles 14 and 16 of the Constitution ofIndia.
(b) to declare that the cadre of the applicants, ie., Leading Hand Fire (Leading Fireman) alone is to be included in the feeder category for promotion to the post ofSupervisor (Fire).
(c) to declare that the applicants alone, who are incluc!ed in the feeder category of Leading Hand Fire, are entitled to be promoted as Supervisor (Fire);
(d) to direct the respondents to effect promotions only from the feeder category of Leading Hand Fire in which the applicants are included to the post of Supervisor (Fire);
(e) to direct the respondents to amend Column No.JO in Serial No.3 in the Schedule appended to Annexure A 1 Recruitment Rules excluding the feeder category of Frier Engine Driver for promotion to the post of Supervisor (Fite);
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(f) to direct the respondents to consider and pass orders on Annexures A6 and A 7 representations submitted by the applicants 1 and 2 in the light of Annexures A3 and A5 orders of this Hon'ble Tribunal, within 9 time limit;
(g) To grant such other reliefs as may be prayed for and the Tribunal may
deem fit to grant; and
(h) To grant costs ofthis Original Application.
5. The brief facts of the case in OA No. 434/2016 are as under:
Ist applicant entered service under respondents as Fireman and was promoted as Leading Fireman on 1.4.2009, 2nd applicant entered service as Fireman on 3.5.1983 and was promoted as Leading Fireman on 1.5.2010, 3rd applicant entered service as Fireman on 3.5.1983 and was promoted as Leading Fireman on 10.8.2012, 4th applicant entered service as Fireman on 1.10.1991 and was promoted as Leading Fireman on 5.6.2012, 5th applicant entered service as Fireman on 16.10.2006 and was promoted as Leading Fireman on 1.4~2016, Applicants 6 to 10 entered service as Fireman on 16.10.2006, Applicants 11 & 12 joined service as Fireman on 16.7.2007, 13th applicant entered service as Fireman on 28.12.2007 and the 14th applicant entered service as Fireman on 12.2.2008. The promotional avenue of Leading Fireman is to the post of Supervisor (Fire )/Station Officer. As per the present Recruitment Rules the feeder cadre to the post of Supervisor (Fire) is Leading Fireman/Leading Hand Fire and Fire Engine Driver in the ratio of 50:50. As per the Recruitment Rules for promotion, the- Leading Fireman must have passed Matriculation and must be conversant with all types of fire extinguishers, hose fitting, various fire appliances and equipments like fire engines, trailer, fire pumps etc. whereas the Fire Engine Driver must have passed Middle School examination and must possess heavy vehicle driving licence. Hence the inclusion of the cadre of Fire Engine Driver who has less qualification and is not conversant with firefighting for promotion to the post of Supervisor (Fire) as per the L • 8 OA Nos. 43412016 & 8601201.'i Recruitment Rules is violation of Articles 14 and 16 of the Constitution of India. The du.ties and responsibilities of the Supervisor (Fire) is to effectively supervise and guide the subordinate staff. He should have training in handling all types of firefighting appliances and equipments and experience in various types of firefighting techniques, whereas the Fire Engine Driver, if promoted as Supervisor, will not be having actual experience and knowledge in these items of work. Hence the above duties cannot be entrusted to a Fire Engine Driver. A Fireman will get promotion as Leading Fireman only after serving for 20 years. This is because of inclusion of unqualified Fire Engine Drivers in the place of qualified Leading Fireman in the category for promotion to the post of Supervisor. The inclusion of Fire Engine Drivers has seriously affected the performance of firefighting staff.
6. Similarly situated employees approached this Tribunal filing OA No .. 824 of 2004 challenging the inclusion of Fire Engine Drivers for promotion to the post of Supervisor (Fire). That OA was disposed of, directing the respondents to consider the representation of the applicants, While considering the representation the third respondent was directed to redress the grievance of Leading Fireman for promotion to the grade of Supervisor (Fire) vide letter dated 17th June, 2008 of the Integrated HQ of Ministry of Defence (Navy). However no steps were taken to implement that direction. Another set of persons filed OA 354/2009 challenging the Recruitment Rules to the extent it includes the category ofFire Engine Drivers. By order dated 12.12.2011 this Tribunal disposed of OA No. 354/2009 with a direction that the grievances of the applicants should be dealt with expeditiously by the respondents and they should also consi4er whether the Recruitment Rules for the post of Supervisor (Fire) in the Navy should be on par with the Recruitment Rules for the same in the Army and the Air Force ·-· 9 OANos. 43412016 & 86012015 and if so consider amendment of the Recruitment Rules. This order may be seen at Annexure-A5. However, the direction still remains not complied with. ·
7. The inclusion of unqualified Fire Engine Drivers in the feeder category for the post of Supervisor (Fire) has brought on a situation where qualified Leading Firemen like the applicants were not getting promotion to the post of Supervisor (Fire) despite being fully qualified, whereas, persons in FED feeder category who were not qualified were getting the benefit of promotion and were made Supervisor (Fire). This situation had been the subject matter of several representations including those which may be seen at Annexures A6 and A7 respectively. A situation came about where a majority of Supervisors (Fire) were promotees from the cadre of FEDs, who were Juniors to the Firemen, if one considers their total length of service in the Department. Even more important consideration ought to be the expertise which the two· categories have acquired in the course of their service. Whereas, an FED promotee Fire Supervisor would be unaware of several nuances of modem fire fighting operations, he is yet mandated to supervise the work of the Fire Fighting Crew. The primary duty of the Fire Engine Driver is to take the Fire Fighting Units to the site of the fire and also to take them away by driving the fire truck. In contrast, the Firemen from the date of their entry into service are intensely exposed to the different aspects of modem fire fighting. In the Ordinance Factories under the same Ministry, Fire Engine Drivers are not considered for promotion to the post of Supervisor (Fire). In Kerala Fire Service also promotional avenues for the Fire Engine Drivers are restricted to Driver (Mechanic). and Vehicle Supervisor/Mechanical Supervisor and they are not allowed to come to .a position where they will be required to supervise fire fighting operations.
8. As grounds for relief the applicants point out that the academic qualification l > •• •• 10 OA Nos. 43412016 & 8601201.'i . required itself is dissimilar in the sense that an LHF is required to have passed a matriculate examination whereas the FED cadre is to acquire middle school qua]ification. And the higher qualification required for an FED is only to have driving Jicense and no experience is required of fire fighting. Thus, these two categories are not equals yet are being treated as equals as per the impugned column No. 10 in Serial No. 3 in the schedule appended to Annexure-Al Recruitment Rules which is under challenge. Again the post of Supervisor (Fire) is a key post among the total 24 Fire Crew Posts and a person whose expertise is in driving a Fire Engine and tending to the pump is obviously incapable of supervising a total crew of Firemen. The duties and responsibilities of Supervisor (Fire) are to effectively supervise and guide the subordinate staff, a quality which would be too much to expect from a Fire Engine Driver. Besides, a person to be promoted to the post ought to have skiU in handling all types of fire fighting appliances and equipments and experience in fighting various types of fires such as chemical fire, electric fire, oil fire, explosive fire etc. A Fire Engine Driver does not have an opportunity to undergo training or pass a departmental trade test where expertise in fire fighting can be acquired/assessed. As has been mentioned in the ma!n OA such an avenue for promotion is not available to Fire Engine Drivers who ·work in the Army or Air Force and also in civil sections such as the Kerala Fire Department.
9. By Annexure-A3 order dated 09.02.2007 in OA 824/2004 this Tribunal had directed the respondents to consider the representation to be submitted by the applicants. On receipt of the Annexure-A3 orders Respondent No.2 considered the issue of undue advantage to FED in promotion to the Grade of Supervisor (Fire) and requested the 3rd respondent to redress the grievances of LHFs for promotion to the grade of Supervisor.
l • 11 OANos. 43412016 & 86012015 However, no steps were taken in consequence to this communication. Again ·by Annexure-A5 order dated 12.12.2011 this Tribunal had observed that the grievances of the applicants should be dealt . with expeditiously and while doing so, they ought to consider whether the Recruitment Rules for the post of Supervisor (Fire) in the Navy should be brought on par with the Recruitment Rules of the same in the Army and Air Force and if necessary, they should consider amendment of the Recruitment Rules in the interest of justice and fair play. This order had also specifically directed the 2nd Respondent to ensure the disposal of the representation to be submitted by the applicants through a speaking order within four months from the date of receipt of the same. However, till date nothing has been done on this.
I 0. Per contra, the respondents have actively contested the demand of the applicants who belong to the LHF category that they alone may be included in the feeder category for promotion to the post of Supervisor (Fire). They find no injustice in Column No; 10 iri serial No. 3 in the Schedule appended to Annexure-Al Recruitment Rules by which Fire Engine Drivers were also included to be considered for promotion to the post of Supervisor (Fire). In accordance with existing Recruitment Rules which is at Annexure-Al, the promotion to the post of Station Officer is governed by the ratio of 50:50 from eligible Leading Firemen and Fire Engine Drivers respectively. It is admitted that upto the year 2008 the system in vogue was to allow promotions alternately from both the feeder categories viz., LHFs and FEDs. However, as there was room for direct recruitment to the post ofFEDs, it came about that FEDs appointed as Supervisor (Fire) were younger in age in comparison to LHFs when promoted and a situation developed where nearly 75 percent of the strength of Station Officers (Supervisor-Fire) belonged to the FED stream as persons from the LHF stream, being more aged came to retire t > •• 12 OA Nos. 43412016 & 8601201.'i much quicker leading to further vacancies which in tum were divided alternately bet_ween the two categories. Being seized of the issue vide Annexure-A4 it was decided that due representation of LHFs stream in Supervisor (Fire) category accorded under the provisions of the Recruitment Rules should be strictly followed. Hence, since 2008 both the streams FEDs and LHFs have availed the benefits of 50:50 ratio and have shared the number of vacancies without any shortfall in either category. From this point of view, no injustice can be claimed by the applicants that there has been a shortfall in the number of posts being offered to that category.
11. FEDs themselves have no avenue for promotion and the Station Officers' post is the only one which they can look upto. It would not be in the interest of justice to deny FEDs this sole avenue for advancement, as otherwise, there would be large scale stagnation at the level of FEDs. As per the schedule at Annexure R~ it may be seen that adequate physical abilities are ensured as necessary qualification while recruiting Fire Engine Drivers and there is no justification in alleging that they are incapable of discharging the duties of Supervisor (Fire). When the case was heard on 18.07.2016 further action in the selection process was ordered to be kept in abeyance and this interim order has been continued from time to time and they are still in force.
12. Ms. Krishnakumari argued at length that unequals are being treated as equals under the impugned part of the Recruitment Rules. She stated that in order for a Fireman to rise to the level to the post of Supervisor (Fire) or Station Officer, it requires decades of experience in Fire Fighting operations. The category of Firemen are the most numerous in the Fire Department and there are instances where people have spent 20 years or more in the initial level of posting i.e., Fireman. After having qualified through a selection process as Leading Fireman or LHF, they find that the promotion > c...
•• 13 OA Nos. 43412016 & 8601201.'i avenues which are few to Supervisor (Fire) posts are divided between them and Fire Engine Drivers. The Fire Engine Drivers whose expertise is elsewhere are relatively young as there is an avenue for direct recruitment into this category. Hence, a ratio of 50:50 is unfair and discriminatory considering the just aspirations of the Firemen category.
13. Smt. Sreekala representing Shri. T.C.Govindaswamy who appeared on behalf of the party respondents i.e., those who belong to the Fire Engine Driver category argued that the provision equating Fire Engine Drivers with Leading Firemen was evolved after due consideration and it would not be correct t.o say that the FED category is getting any undue benefit out of the present dispensation. Ms. Thanuja who appeared on behalf of the official respondents representing Shri. N. Anilkumar, Sr. Standing Counsel for the Government, pointed out that there were complaints that the provisions in the Recruitment Rules were not being strictly adhered to and this has been rectified. As a result of this rectification, the 50:50 ratio is being correctly enforced. The number of people in both categories are more or less equal and it would not be prudent to reduce the avenues to one category in relation to the other. Hence, it would be necessary to persist with the present 50:50 ratio if equity is to be ensured. She also brought to our attention a decision of C.A.T Jodhpur Bench in OA 434/2016 wherein it is stated that due reasoning has to be given to any decision that Government is required to take. She prayed that the balance which has been arrived at after due consideration by fixing the ratio should not be upset without adequate examination. She also mentionedthatthe stay order in force for the last one year has resulted in a situation where promotions which the respondents wanted to give effect to, have been stopp_ed and requested that the stay may be vacated at the earliest, so that the panel already drawn up may be considered for c: ) •• 14 OA Nos. 43412016 & 860/20) 5 promotion.
14. M.A.No.584/2017 has been filed by certain outsiders to implead them as Additional Respondents 4 to 7. This has been allowed vide order dated 27.6.2017. Applicants filed MA No.198/2017 for a direction to the respondents to effect promotions to the existing vacancies of Supervisor (Fire) exclusively f~om the qualified feeder category of LHF, which is being considered in this order. Newly impleaded respondents 4 to 7 filed an MA No.583/2017 for vacating the order dated 18.7.2016 passed by this Tribunal and to make promotions to the post of Supervisor (Fire) in accordance with Annexure Al Recruitment Rules, to which the applicants to the OA filed a reply. This MA is pending consideration.
15. The applicants had filed a rejoinder pointing out that the so called equity which has been brought about by the said Clause in the Recruitment Rules which is under challenge has brought no equity at all. It is pointed out that from among the 6 persons who are at present working as Supervisor (Fire) 5 are promotees from the post of FEDs and the remaining 1 person is the sole promotee from the category of LHF. The 5 posts of Supervisor (Fire) to which LHF are entitled to be promoted are kept vacant. It was further maintained that the directions given in the two OAs by this Tribunal have not been complied with by the respondents and this has caused considerable distress to the LHF category also.
16. By way of filing MA 638/201 7 some documents have also been brought before this Tribunal. These are:
True copy of the relevant pages of the report of 6th Central Pay Commission in March, 2008 (Annexure-A8), true copy of the relevant extract of the minutes of 12th > L •• 15 OANos. 43412016& 86012015 main meeting of the XII term of JCM III Level Council (DGQA) dated 9.2.2012 (Annexure-A9), true copy of the letter dated 07.05.2012 issued by the 3rd Respondent (Annexure-Al 0), true copy of the panel for promotion - Fire Fighting Staff dated 31.03.2015 (Annexure-A 11) issued by the 3rd Respondent and true copy of the relevant pages of the order of promotion Fire Engine Drivers from Grade II to Grade I dated 13.05.2016 (Annexure-A12). The first two documents primarily indicate the existence of different grades for Fire Engine Driver category. While the Pay Commission report is a recommendation the other relates primarily to the Army.
l 7. The reliefs sought in OA No. 860/2015 are as under:
(a) Call for the records leading to the issue of Annexure A 1 and quash the same, in so far as it empanels the 5th respondent and those below him, overlooking, the priority of the /st applicant and others in the Fire Engine Drivers Stream;
(b) Call for the records leading to the issue of Annexure A2 and quash the same, in so far as it promotes the 5th respondent, overlooking the priority of the /st applicant;
(c) Declare that the /st applicant is entitled to be considered and promoted in preference to the eh respondent and direct the respondents to promote the /st applicant as the Station Officer, with all consequential benefits, including arrears of pay and allowances w.e.f the date of Annexure A2.
(d) Direct the respondents to prepare the panel for promotion as Station Officers applying the ratio of 1:1 (Leading Firemen and Fire Engine Drivers) against vacancies and direct further to fill up the existing andfuture vacancies on that basis;
(e) Award costs of and incidental to this application; and
(f) Pass such· other orders or directions as deemed just, fit and necessary in the facts and circumstances of the case.
18. The brief facts in OA No. 860/2015 are as under:
Applicants are challenging as illegal the panel prepared by the official respondents for promotion to the post of Supervisor (Fire)/Station Officer from among the Leading Firemen. As per the prevalent Recruitment Rules, 50% of the vacancies are
-· L •• 16 OA Nos. 43412016 & 860/2fll.'i to be filled by promotion of Leading Firemen and remaining 50% by promotion of Fire Engine Drivers. While the applicants were waiting for promotion, the impugned panel has been published promoting a Leading Fireman and none of the Fire Engine Drivers are included in the panel. The Ist applicant was informed that while applying the quota rota rules, the respondents are adopting' the post based roster as applicable to the reservation of members of SC/ST/OBC, which is totally against the statutory rules. Ist applicant filed detailed representation on 16.7.2015 to the 3rct respondent, but without considering the same Annexure A2 was issued promoting the 5th respondent overlooking lst applicant's priority. Hence applicants have filed this OA. Applicants submit that overlooking the Fire Engine Drivers, the promotion granted to Respondent No.5 is discriminatory and unconstitutional and violative of Articles 14 and 16 of the Constitution of India. Respondents are bound to follow the vacancy 'based roster and not post based roster, as per the statutory rules. The Annexure Al panel without applying the ratio of 1: 1 in empaneling persons for promotion as Station Officers is illegal and unconstitutional and applicants are entitled for the declaration sought in this OA.
19. Per contra, official respondents have filed a reply stating that they have strictly adhered to the rules in vogue and existing practice to ensure equal representation of Leading Fireman and Fire Engine Driver in promotion to Station Officer. Upto the year 2008, DPCs were conducted according to the Recruitment Rules and eligible individuals from both the feeder categories viz., Leading Fireman and Fire Engine Drivers were given promotions alternately. Most of the Fire Engine Drivers who were appointed on direct recruitment were younger in age compared to the Leading Fireman who were promoted from the post of Fireman. Hence Leading Firemen were getting .. > L • 17 OA Nos. 43412016 & 86012015 promotion to the post of Station Officer at the fag end of their service. There arose a . situation where 75% of the strength of Station Officers belong to the individuals promoted from FEDs. The Integrated Headquarters of Ministry of Defence directed that aue representation need to be given to the Leading Firemen stream in accordance with the Recruitment Rules. Accordingly the Station Officer post is now filled up on 50:50 basis giving equal representation to both cadres. Annexures Al and A2 have been issued strictly in accordance with the Recruitment Rules ensuring 50:50 representation of Leading Fireman and Fire Engine Drivers in the promotion post and there is nothing illegal as stated by the applicants. During 2015-16 there were 6 anticipated vacancies in the post of Station Officer due to retirement of 5 individuals from leading Firemen Stream and 1 from FED stream. However, during that period the 11th vacancy was due for Leading Fireman and accordingly all the 06 vacancies had to be offered to Leading Firemen to which they were entitled. During 2014-15 out of 3 vacancies, 2 were provided to FEDs, 01 being their replacement vacancy and the other to which their stream was entitled. Hence respondents states that there is nothing illegal in the action taken by the respondents and they prayed for dismissal of OA.
20. Ms. Sreekala appearing on behalf of Shri T.C.Govindaswamy, learned counsel for the applicants and Ms. Thanuja appearing on behalf of Shri N.Anil Kumar, Senior Panel Counsel for the respondents have been heard and the documents/records perused.
21. The issue raised in the two contesting O.As are one and the same. The categories of Leading Firemen and Fire Engine Drivers are disputing the ratio looking at it from their different individual perspectives. The dispute/grievances of both sides can be settled only through a comprehensive evaluation of their stated positions. We are > c •• 18 OA Nos. 43412016 & 86012()/5 attempting to do this through a combined order.
22. The dispute is with respect to the opportunity for promotion being offered to two distinct categories of employees who work in the Fire Force Wing of the Indian Navy. The category of Leading Hand Fire/Leading Firemen are promotees from the level of Firemen who are promoted after having worked in that catego'ry for around 20 years and have mastered the different aspects of fire fighting operations. They are, in more sense than one, ideally suited fo be considered for promotion as Supervisor (Fire). The second category is that of Fire Engine Drivers. They also fulfill a very important task in fire fighting operations, in the sense, their duty is to take the team to the site of the fire without loss of time and to tend to the pumps which have to be primed and kept in continuous operation. The impugned provision in the Recruitment Rules mention the eligibility for the post of Supervisor (Fire) as below:
"50% by promotion from Leading Hand Fire (Selection Grade) and 50% from Fire Engine Driver Grade L failing that by transfer and failing that by direct recruitment. "
23. This is the third round of litigation before this Tribunal on the given subject. According to submission made by the learned counsel for the applicants there are 65 personnel in the seniority list of Leading Firemen as on 31st March 201 7 whereas there are 54 personnel in the seniority list of Fire Engine Driver (Grade II) as on 31st March 2017. The total sanctioned strength in the post of Station Officers is 11 which is to be divided between 5 LFM and 5 FEDs with one vacancy given to LFM and FED alternately. It has been pointed out that this ratio is now been scrupulously followed in order to retain the proportion of 50:50. A panel of 6 LFMs have been drawn up for the vacancy year 2015-2016, promotion of which has been stayed on account of interim stay issued by this Tribunal.
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24. On the subject of who is better suited to take up for the post of Supervisor (Fire), it would be useful to refer to the orders in OA No. 354/2009 issued on 12111 December, 2011 (Annexure-A5).
"6. It stands to reason that a LHF with his ability, experience and training in fire fighting is a better choice for the post of Supervisor (Fire) than a FED, whose expertise is in driving. The Supervisor (Fire) has to effectively supervise and to train the subordinate staff in fire fighting. A FED is not expected to have the ability to impart training for the Fire Crew and to do the maintenance of all fire fighting equipments. Yet a FED ·without having undergone a training or a departmental trade test or experie11ce in fire fighting is promoted as Supervisor (Fire) and is made to supervise fire fighting.
7. A LHF is having higher scale ofpay than a FED. The FEDs have another avenue of promotion. The FEDs have no qualification or experience in fire fighting. Therefore, the respondents should consider whether it is necessary to curtail the chances ofpromotion of LHFs by giving preference and benefit of reservation o/50% of posts to FEDs in the matter of promotion to the post of Supervisor (Fire), which is a key postamong a total of 24 crew.
8. In the given circumstances, it would appear that there is discrimination against LHFs in the matter of promotion to the post ofSupervisor (Fire). Primafacie, there is unfair advantage to the FEDs in keeping 50% ofposts reserved for them, though they do not have qualification or experience in fire fighting. The respondents themselves admitted that the vacancy based rotation method ofpromotion in 50:50 ratio resulted in excess representation of FEDs in Supervisor (Fire) grade. Moreover, they reach to the grade of Supervisor (Fire) after crossing only 2 stages, whereas the LHFs have to cross 4 stages to reach the post of Supervisor. The duties ofLHFs differ from that ofFED. The method of granting promotion to the post of Supervisor (Fire) adopted by the Army, Air Force appear to be more reasonable and equitable than the method adopted by the Navy.
9. OA No. 82412004 filed by LHFs was disposed of by this Tribunal on 09.02.2007 with a direction to the applicants therein to file a representation to the respondents who appeared to be inclined to consider the case of the applicants. The fate of the representation at Annexure A5 is not known. The inclination of the respondents to consider the case of the applicants, shown years ago needs to be translated into positive action without further delay.
JO. The FEDs are not a party to this OA. As they were not heard, we do not enter a finding as to the illegality and arbitrariness in c • 20 OA Nos. 43412016 & 86012015 including the FEDs in the feeder category for the post of Supervisor (Fire) and the order at Annexure A-2 issued by the 3rd respondent.
25. We cannot agree more with the conclusion arrived at by this Tribunal in the quoted OA. Fire Fighting particularly in modem days is increasingly becoming a high- tech operation with the variety of fires increasing manifold. Conventibnal fire fighting skills have to be updated regularly and also built on a foundation of developed expertise and vast knowledge which only experience can bring. From this perspective it would not be an exaggeration to state that Leading Firemen category are better suited to hold the post of Supervisor (Fire) or Station Officer. While saying so, we do not wish to belittle the importance of the Fire Engine Driver in a fire fighting operation. Naturally, it involves highly developed skills as also expertise in specialized areas of such operations as tending to the pumps and keeping them working satisfactorily while the operation is in progress. Their grievance relating to limited career advancement oportunities also cannot be dismissed out of hand. Hence, it is necessary to arrive at a solution giving due weightage to the claims of both sides. It was with this purpose in mind that this Tribunal had on two occasions in the past directed the respondents to examine the issue in detail and arrive at a satisfactory ratio/solution. As pointed out, in the orders at Annexure-A5 the relative qualification for holding the post of Supervisor (Fire )/Station Officer is not the same as is represented by the two categories. In other words, the ratio deserves to be looked at afresh.
26. Yet it is a matter of regret that the respondents have not chosen to comply with the directions given in the two OAs referred to and instead have stood by silently allowing the dispute to fester over the years. There are models which .are available in the Army and Airforce Fire Fighting Wings as well as in civilian Fire Forces of the
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OA Nos. 43412016 & 86012015 States which could provide useful templates on which the particular requirements of the Navy can be plotted and a satisfactory solution arrived at. Inaction would provide no solution at all. We feel that this issue cannot be ignored any longer as an integral component of a proud fighting arm of the Indian Union should not be beset with such demoralising disputes. We direct the respondent No. 3 to hear both sides to the dispute and adjudicate the matter in detail and come to a suitable decision which can be taken up directly before the competent authority for amendment to the impugned notification, if necessary. Again we hasten to add that we have neither the domain knowledge nor the expertise to pronounce on what constitutes the eligible share for each category in the promotion post. We would much rather leave it to the competent powers to take a final view. However, we direct that this consolidated view should be taken and the Recruitment Rules amended, if necessary, within a period of one year from the date of this order.
27. We understand that all promotions to the Supervisor (Fire) category have been stayed since July, 2016 pending final disposal of OA No. 434/2016. We vacate this stay order. We do not propose to stand in the way of the authorities in making promotions to available posts of Supervisor (Fire) as per existing Recruitment Rules observing the 50:50 ratio between the two categories for the present. This measure would continue until the official respondents take a final view on the fair share for each category which they shall do within the time limit prescribed in the previous paragraph. We hope that the respective concerns of the two categories will be finally addressed to the satisfaction of both, once the competent authority applies their mind to the issue raised in the dispute.
28. The OANo. 434/2016 andOANo. 860/2015 are disposed ofwith the above > L •• 22 OA Nos. 43412016 & 8601201.'i directions. Parties will suffer their respective costs.
29. In view of the disposal of these O.As M.A.Nos. 198/2017 and 583/2017 in OA 434/2016 also stand disposed of.
(E. . arat Bhushan) (U. Sara~hchandran)
Administrative Member Judicial Member
kspps
List of Annexures of applicants in OA 434/2016
Annexure A-1 True copy of the relevant extract of the Indian Navy (Group D and
Group C) Firefighting Staff Recruitment Rules, 1982, obtained by the applicants under RTI Act.
Annexure A-2 True copy of the relevant extract of Fire Orders of INS Venduruthy. Annexure A-3 True copy of the Order of this Hon'ble Tribunal dated 09.02.2007 in O.ANo. 824of2004. .
Annexure A-4 True copy of the Letter No. CP (NG)/2805/Corrdated 17th June, 2008 issued from the Integrated Headquarters of Ministry of Defence (Navy) to the third respondent.
Annexure A-5 True copy of Order ofthis Hon'ble Tribunal dated 12.12.2011 in OA No. 354/2009.
Annexure A-6 True copy of representation dated 18.10.2015 submitted by the 1st applicant before the third respondent.
Annexure A-7 True copy of the representation dated 18.10.2015 submitted by the 2nd applicant before the third respondent.
Annexure A-8 True copy of the relevant pages of the Report of the Sixth Central Pay Commission in March 2008.
Annexure A-9 True copy of the relevant extract of the Minutes of the 121h main meeting of the XII term of JCM Ill Level 13 to 16 Council (OGQA) dated 09.02.2012.
Annexure A-10 True copy of the letter dated 07.05.2012 issued by the third respondent.
Annexure A-11 True copy of the Panel for Promotion - Firefighting Staff dated 31.03.2015 issued by the third respondent.
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Annexure A-12 True copy of the relevant page of the Order of Promotion: Fire
Engine Drivers from Grade II to Grade I dated 13.05.2016. List of Annexure of respondents 1 to 3 in QA 434/2016 Annexure R-1 True copy of the Recruitment Rule of Fire Engine 'Driver.
List of Annexures of applicants in QA 860/2015 Annexure A-1 True copy of the Panel for promotion - Fire Fighting Staff issued under Memorandum No. 2760/8 dated 31st March, 2015 issued on behalf of the 3rd respondent.
Anriexure A-2 True copy of the Promotion order of Fire Fighting Staff issued under No. 2760/08 dated 21st September, 2015 issued on behalf of the 3rd respondent.
Annexure A-3 True copy of the recruitment Rules of Supervisor (Fire) present designation-Station Officer] communicated (under SRO dated 15th March, 1982 amended by SROs 33 dated 11.01.1985 and 340 dated 08.12 ..1988.
Annexure A-4 True copy of the communication bearing No. CP (NG)/ 2805/222/CC/D(Apptts.) dated 5th August, 2004, issued from the office of the 1st· respondent.
Annexure A-5 True copy of the panel for promotion of Fire Fighting Staff as published on behalf of the 3rd respondent under No. CS2760/8 dated 1st April, 2014. · Annexure A-6 True copy of the representation submitted by the applicant dated 16.07.2015, addressed to the 3rd respondent.
Annexure A-7 True copy of the Government of India, Department of Personnel and Training OM No. AB-14017/2/1997 -
Estt. (RR)/PT. Dated 19.01.2007.
List of Annexure of respondents 1 to 4 in QA 860/2015 Annexure R-1 True copy of IHQ MOD(N) letter CP (NG)/ 2805/ Corr dated 17 June 2008.
PPS to Member