Central Administrative Tribunal - Ernakulam
P.V. Babu vs The Administrator on 24 June, 2016
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A No. 646 OF 2013
Friday, this the 24th day of June, 2016
CORAM:
HON'BLE Mr. JUSTICE N.K. BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Mrs. P. GOPINATH, ADMINISTRATIVE MEMBER
P.V. Babu, S/o. P.K. Vasu,
WC Driver Grade III,
Lakshadweep Public Works Department (Civil),
Cochin. Residing at : Lakshadweep Residential
Complex, Panampilly Nagar. - Applicant
(By Advocate Mr. P.V. Mohanan)
Versus
1. The Administrator,
U.T of Lakshadweep, Kavaratti - 682 555.
2. The Superintending Engineer,
Lakshadweep Public Works Department,
Kavarathy - 682 555.
3. Union of India represented by Secretary,
Ministry of Personnel and Public
Grievances and Pension,
North Block, New Delhi - 110 001. - Respondents
(By Advocates Mr. S. Radhakrishnan for R-1&2)
Mr. S. Sreejith, ACGSC for R-3.)
The application having been heard on 10.06.2016, the Tribunal
on 24.06.2016 delivered the following:
ORDER
Per: Mrs. P. Gopinath, Administrative Member The applicant was appointed as Work Charged Driver (ordinary) on 31.03.1994 in the pay scale of Rs. 950-1500 (Revised as Rs. 3050-4590/-) on ad-hoc basis. The ad-hoc service was regularised with effect from 31.03.1994 by order dated 02.03.1995. The applicant was stagnated in the Grade. In terms of the provisions contained in the Assured Career Progression Scheme dated 09.08.1999, the applicant is entitled to get financial upgradation to the pay scale of Rs. 4000-6000 (Pre-revised) with effect from 31.03.2006 on completion of 12 years of service.
2. The Staff Car Drivers are covered by GOI Staff Car Drivers Scheme which provided three grades namely, Driver ordinary Grade, Grade II and Grade 1 in pay scale of Rs. 950-1500/-, Rs. 1200-1800/- and Rs. 1320-2040/- (Pre-revised) respectively in the ratio of Rs. 55:25:20.
3. The applicant avers that respondent Administrator by proceeding dated 18.08.2003 had re-structured the cadre strength of Staff Car Driver into 4 Grades namely Ordinary Grade, Grade II, Grade I and Special Grade on a scale of pay of Rs. 3050-4590/-, Rs. 4000- 6000/-, Rs. 4500-7000/- and Rs. 5000-8000/-. The Administrator by proceeding dated 27.04.2006 and 06.06.2007 had promoted Drivers working in Medical Department of Lakshadweep as Staff Car Driver Grade II and Grade I respectively. Since the incumbents therein were not granted Grade promotion on due date on completion of requisite years of service, driver in Medical and Health Services filed O.A No. 282/2008 seeking retrospective Grade promotion on due date on completion of requisite years of service. The above Original Application was allowed by order dated 07.07.2009 granting Grade promotions to Grade II (Rs. 4000-6000/-) and Grade I (Rs. 4500-7000/-) to Drivers working in Medical and Health Services. The applicant had not been granted grade promotion as contemplated above, nor had he been granted the benefits of Assured Career Progression Scheme.
4. To avoid stagnation, a Staff Car Driver Scheme was envisaged enabling the incumbent to get first higher grade on completion of nine years service and second grade on completion of six years of service after first higher grade. Assured Career Progression Scheme contemplated first higher grade on completion of 12 years and second higher grade on completion of 12 years thereafter. MACP Scheme introduced subsequent to ACP contemplates first higher grade on completion of 10 year and second and third higher grade on completion of 20 and 30 years thereafter. The applicant is denied benefits of first Assured Career Progression grade on completion of 12 years with effect from 31.03.2006. Clause 13 of the MACP Scheme dated 19.05.2009 reads thus:
'The Existing time-bound promotion Scheme, including in situ promotion Scheme, Staff Car Driver Scheme or any other kind of promotion Scheme existing for a particular category of employees in a Ministry/Department or its offices, may continue to be operational for the concerned category of employees if it is decided by the concerned administrative authorities to retain such scheme, after necessary consultation or they may switch over to the MACPS. However, these Schemes shall not run concurrently with the MACPS.b�
5. By O.M dated 30.07.2010, it is clarified that the benefits of the MACPS shall also be extended to the regular staff Car Driver of the Central Government Ministries/Department/Offices as fall back option, if they are unable to get promotion with the existing percentage based Scheme. Thus the staff car Driver Scheme and MACP Scheme shall run concurrently. By proceedings dated 19.12.2011, based on the recommendations of the Screening Committee for grant of benefits under MACPS, the applicant has been granted first MACP benefits in the pay band of Rs. 5200-20200 plus Rs. 2000/- Grade Pay with effect from 01.09.2008. Applicant avers that had he been granted the first ACP benefit on completion of 12 years in the Grade, the Grade Pay as on 01.09.2008 would be at Rs. 2400/- as per CCS (Revised Pay) Rules, 2008.
6. Applicant in the O.A prays to get the 1 st financial upgradation under the ACP Scheme with effect from 31.03.2006 and fix his pay with grade pay of Rs. 2400/-. It is also prayed that he should be given an option to come over to the Staff Car Driver Scheme and to have the higher grades fixed on completion of 9 and 15 years of service as Staff Car Driver and to have his pay fixed under MACP Scheme.
7. Respondents in the reply statement submits that the applicant commenced service as Work Charged Driver with effect from 31.03.1994. Respondent denies that applicant was stagnated in the Grade. The department had implemented the Staff Car Driver Scheme in order to devise a promotional scheme for Staff Car Drivers in the island, as per Annexure R-1(a) GOI OM dated 30.11.1993 as early on 22.12.1997. As per Staff Car Driver Scheme, the posts of Staff Car Drivers in the existing scale of Rs. 950-1500 were placed in the following three scales, viz. Rs. 950-1500, Rs. 1200-1800 and Rs. 1320- 2040 in the ratio of 55:25:20. The nomenclature of the posts in the three scales are as follows:-
Staff Car Drivers Ordinary Grade - Rs. 950-1500 Staff Car Driver Grade II - Rs. 1200-1800, and Staff Car Driver Grade I - Rs. 1320-2040
8. The minimum eligibility criteria for each grade are that on completion of 9 years of service Staff Car Driver Ordinary Grade (Rs. 950-1500) will be promoted to Grade II (Rs. 1200-1800) and Grade II Staff Car Drivers on completion of 6 years regular service will be placed as Staff Car Driver Grade I (Rs. 1320-2040). The promotion shall be on the basis of seniority cum fitness and passing trade test, completion of service being a qualification subject to availability of vacancy. It is further submitted that in accordance with the directions contained in the Office Memorandum dated 30.11.1993, the Administration had also re-designated the post of existing work charged Drivers in the scale of pay of Rs. 950-1500 under the LPWD as Staff Car Driver (Work Charged) by order dated 14.06.2001 (Annexure R-1(c).
Three ordinary drivers were promoted to Grade II under the work charged establishment of Lakshadweep PWD in accordance with the 30.11.1993 promotion scheme implemented by Annexure R-1(a). The applicant was appointed as Work Charged Driver on 31.03.1994 in the pay scale of Rs. 950-1500/- (Revised as Rs. 3050-4590/-) on ad-hoc basis. The ad-hoc service was regularised with effect from 31.03.1994 by order dated 02.03.1995. The contention raised by the applicant in the O.A that he was stagnated in the grade and as per the provisions contained in the Assured Career Progression Scheme, he was entitled to get financial upgradation under ACP to the pay scale of Rs. 4000-6000/- (pre-revised) with effect from 31.03.2006 on completion of 12 years of service is not admitted by the respondent. It is submitted that the Lakshadweep Administration and Lakshadweep Public Works Department has already implemented the Staff Car Driver Scheme, as per GOI OM dated 30.11.1993 in the year 1997. As per Annexure R- 1(f) point of doubt No. 59 of GOI clarification in O.M No. 35034/1/97- Estt. (D) (Vol. IV) dated 18.07.2001, it is stated that where the Staff Car Driver Scheme is applicable, ACP Scheme will not be applicable.
9. Heard learned counsel for the applicant and respondents and the written submission made.
10. ACP is not applicable to the applicant since the Staff Car Driver Scheme was already implemented in the Lakshadweep Administration and applicant cannot be simultaneously covered by 2 schemes. Hence, the argument that the applicant ought to have been granted the first financial benefits under ACP Scheme on completion of 12 years of service in the Grade is not tenable. It is submitted that as far as MACP Scheme is concerned, the situation is different. As per MACP Office Memorandum dated 30.07.2010 it was decided in consultation with the Department of Expenditure that the benefits of MACPS shall also be extended to the Regular Staff Car Drivers of the Central Government Ministries/Department/Offices as a fall back option, if they are unable to get promotion within the ratio based Staff Car Driver Scheme. It is also submitted that as the applicant was eligible for MACP benefits it has been allowed with effect from 01.09.2008 i.e. the date of implementation of the MACP Scheme. The Staff Car Driver Scheme is post based ie. total posts of existing drivers are distributed among various Grades as per the ratio norms. Hence, promotion of a driver in a lower grade to higher grade can be considered only if there is a vacancy in the higher grade. He will not be entitled for higher grade promotion merely on completion of requisite years of service as in the MACP Scheme. This Tribunal while disposing O.A No. 282/2008 dated 07.07.2009 directed as follows:-
'(i) Implement the Promotion Scheme for Staff Car Drivers in the ratio 55:25:20 w.e.f. 01.08.1993 as envisaged in O.M dated 30.11.1993 and in the ratio of 30:30:35:5 w.e.f. 8.11.1996 as envisaged in the O.M dated 15.02.2001 treating pass in trade test already conducted as void and conducting trade test for those who were not called for the same.
(ii) Declare that the applicant is eligible to be considered for promotion to Grade-II w.e.f. 01.08.1993 itself and for Grade-I in his turn based on his position in the seniority list, subject to availability of vacancies within the identified posts of 14 drivers in Grade-I. Hence, the applicability of the Staff Car Driver Promotion Scheme has already been adjudicated in this Tribunal and the orders passed therein are final. This was done in 2009 when both ACP and MACP were in operation and hence the choice of ACP was closed due to the above order of this Tribunal.
11. The applicant was covered by the earlier Staff Car Driver Scheme and is now covered by the MACP Scheme both of which were introduced to remove the malice of stagnation. Applicant refers to C.A No. 3967 of 1987 which was the forerunner of the ACP Scheme, wherein the Apex Court in Council of Scientific and Industrial Research and another v. K.G.S. Bhatt and another held:
'........It is often said and indeed, adroitly, an organisation public or private does not 'hire a hand' but engages or employs a whole man. The person is recruited by an organisation, not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personnel development as well. (See Principles of Personnel Management by Flipo Edwin B.4th Ed.p. 246) Every management must provide realistic opportunities for promising employees to move upward. 'The organisation that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low morale, and ineffectual performance, among both non-managerial employees and their supervisors.b� (See: Personnel Management by Dr. Udai Pareek p.277). There cannot be any modern management much less any career planning, man-power development, management development etc. which is not related to a system of promotions.
11. There is yet another reason for not interfering with the relief given by the Tribunal. We have accepted tribunalisation of justice by diverting jurisdiction of the High Courts with regard to service matters. The service Tribunals have been constituted under the Administrative Tribunals Act, 1985, as final arbiter of controversies relating to conditions of service of officials. The Administrative Tribunal Act was enacted on the recommendations of this Court made in Harjeet Singh v. Union of India (1980) 3 SCR 459 at p.464 :(AIR 1980 AC 1275 at P.1277) and in Kamal Kanti Datta v. Union of India, (1980) 3 SCR 811 at P. 823 : (AIR 1980 SC 2056 at P. 2058). There, this Court observed that the Tribunal should decide disputes as to service matters without being tied down to strict rules of evidence. In fact sub-section (1) of Sec. 22 of the Administrative Tribunal's Act, 1985, provides that a Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908, but shall be guided by the principle of natural justice, etc. Section 27 provides finality to orders of the Tribunal. Section 28 excludes the jurisdiction of Courts except the Supreme Court, or any Industrial Tribunal, Labour Court.
12. But this Court under Article 136 exercises power only when there is supreme need. The decision on individual disputes of seniority, promotion, reversion, suspension, pay fixation, etc are not ordinarily interfered with eventhough it is viewed as erroneous. The Tribunal may fall into some legal errors but if substantial justice has been rendered to a person, this Court will not interfere with such a decision. In Rashpal Manhotra v. Satya Rajput (1987) 4 SCC 391 : (AIR 1987 SC 2235), this Court expressed the view that even if legal flaws might be electronically detected in the order of the Tribunal or Court, this Court will not interfere unless there is manifest injustice or substantial question of public importance.'
12. The above observation of the Apex Court has been fully implemented in respect of the applicants. The applicant has been given the opportunity to advance on the basis of two schemes - the Staff Car Driver Scheme and MACP. The Staff Car Driver Scheme was introduced in December, 1993 and was already in existence when ACP was introduced in 1999. ACP was not made applicable to applicants. Further ACP had two promotions on completion of 12 and 24 years whereas SCDS provides three/four promotions. Hence, the charge of stagnation or negation of career advancement cannot hold good. The applicant's prayer is for ACP. This Tribunal in judgment dated 07.07.2009 in O.A 282/2008 had already directed implementation of the Promotion Scheme for Staff Car Driver in the ratio of 55:25:20 with effect from 01.08.1993 and in the ratio of 30:30:35:5 with effect from 08.11.1996. Hence, the applicant's prayer for ACP is in conflict with the order of the Tribunal in O.A 282/2008, which had closed the matter with its directions. This disposes of the first prayer of applicant.
13. The applicant has also been granted MACP with effect from 01.09.2008 vide order dated 19.12.2011 and hence his prayer 'B' has already been granted. The first prayer of applicant is in conflict with the order in above mentioned O.A No. 280/2008, and the ACP Scheme excluded staff car drivers as the Staff Car Driver Scheme had already been formulated prior to introduction of the ACP Scheme.
14. Since both the prayers do not stand, the Original Application is dismissed. No order as to costs.
(Dated, this the 24th June, 2016)
(Mrs. P. GOPINATH) (N.K. BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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