Central Administrative Tribunal - Mumbai
Shri Annasaheb Dattatraya Desai vs M/O Defence on 26 November, 2024
1 OA No.691/2015
CENTRAL ADMINISTRATIVE TRIBUNAL
MUMBAI BENCH, MUMBAI.
ORIGINAL APPLICATION No.691/2015
Dated this Tuesday the 26th November, 2024
CORAM: Hon'ble Mr. Shri Krishna, Member (A)
Hon'ble Shri Umesh Gajankush, Member (J)
1. Shri Annasaheb Dattatraya Desai
Son of Dattatraya Balvant Desai
Age - 41 years, working as Telecom
Mechanic/HS-I in the office of
512, Army Base Workshop, Kirkee,
Pune, residing at 38/1, B3, Road
No.02, Shree Nagar, Pimple-Gurav,
Pune - 411 061.
2. Shri Digambar Dattu Riddiwade,
Son of Dattu Sidhnath Riddiwade,
Age 41 years, working as Telecom
Mechanic/HS-I in the office of
512, Army Base Workshop, Kirkee,
Pune, residing at Varun Niwas,
Ayoddha Nagari Colony, Kokane
Nagar, Kalewadi, Pune - 411 017.
3. Shri Devendra Sitaram Pisal, Son of
Sitaram Ramchandra Pisal, Age 41 years
Working as Telecom
Mechanic/HS-I in the office of
512, Army Base Workshop, Kirkee,
Pune, residing at E-403, Mayur
Nagari, Phase-I, Pimple-Gurav,
Pune - 411 061.
4. Shri Ravindra Ramesh Kumbhar
Son of Ramesh Raghunath
2 OA No.691/2015
Kumbhar, Age 39 years working as
Telecom Mechanic/HS-I in the
Office of 512, Army Base,
Workshop, Kirkee, Pune, residing at
Kumbhar Wada, House No.202,
Katrajgon, Haveli, Pune - 411 046.
5. Shri Prashant Balasaheb Dhanve
Son of Balasaheb Savlaram
Dhanve, Age 41 years working as
Telecom Mechanic/HS-I in the
Office of 512, Army Base,
Workshop, Kirkee, Pune, residing at
A/P-Urulikanchan, Behind
Shivkrupa Karyalaya, Tal. Haveli,
Dist. Pune - 412 202.
6. Shri Balasaheb Revappa Kamatkar
Son of Revappa Krushna Kamatkar,
Age 42 years working as Telecom
Mechanic/HS-I in the office of
512, Army Base Workshop, Kirkee,
Pune, residing at Survey No.
82/2/31, Sudarshan Nagar, Pimple-
Gurav, Pune - 411 061.
7. Shri Shrinivas Ramchandra Kadgi
Son of Ramchandra Tippna Kadgi,
Age 44 years working as Telecom
Mechanic/HS-I in the office of
512, Army Base Workshop, Kirkee,
Pune, residing at 560, Mahatma
Phule (Ganj) Peth, Near Parachi
Talim, Pune - 411 042.
8. Shri Vinay Nagesh Gulavani, Son
of Nagesh Krushna Gulavani, Age
39 years working as Telecom
Mechanic/HS-I in the office of
3 OA No.691/2015
512, Army Base Workshop, Kirkee,
Pune, residing at Sector No.24, Plot
No.237, Near Central Bank,
Pradhikaran, Nigdi, Pune - 411 044.
9. Shri Vinayak Shyam Shete
Son of Shyam Mahadev Shete, Age
39 years, working as Telecom
Mechanic/HS-I in the office of
512, Army Base Workshop, Kirkee,
Pune, residing at K-201, Phase-II,
Mayurnagari, Pimple-Guarv, Pune
411 061.
10. Shri Ratnakar Bharat Bhagwat, Son
Of Bharat Janardan Bhagwat, Age 32
Years working as Telecom Mechanic /
HS-I in the office of 512, Army Base
Workshop, Kirkee, Pune, residing at
Flat No.A/30, Green City, NDA Road,
Rahul Nagar, Shivane, Near Shivane
Bus Stop, Tal. Haveli, Dist.
Pune - 411 023. ... Applicants
( By Advocate Shri Vishal Shirke )
Versus
1. Union of India,
Through the Secretary,
Ministry of Defence,
Department of Defence Production
(EME),
South Block, New Delhi - 110 011.
2. The Director General of Electronics
Mechanical Engineering,
Integrated HQ of Ministry of Defence
(Army), DHQ PO, New Delhi - 110 011.
4 OA No.691/2015
3. The Commandant
Base Workshop Group
EME, Meerut Cantonment
Meerut, UP 282 001.
4. The Commandant,
512 Army Base Workshop,
Kirkee, Pune - 411 003. ... Respondents
( By Senior Advocate Shri R.R. Shetty a/w Dr.
V.B. Joshi and Ms. J.K. Rehel )
Order reserved on : 23.10.2024
Order pronounced on : 26.11.2024
ORDER
Per: Mr. Shri Krishna, Member (A)
The applicants 10 in number have filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 to claim the following reliefs:
"8(a) This Hon'ble Tribunal may graciously be pleased to call for the records of the case from the respondents and after examining the same, quash and set aside Para (b) of Daily Order Part-I No.720 dated 03.09.2015 and hold and declare that placement of the applicants were Telecom Mechanic Highly Skilled-II to Telecom Mechanic Highly Skilled-I is not a promotion for the purpose of MACP 5 OA No.691/2015 Scheme.
(b) This Hon'ble Tribunal may further be pleased to direct the respondents to grant First Financial Upgradation in the Grade Pay of Rs.4200/- under Modified Assured Career Progression Scheme with effect from the dates of their entitlements as specified in the last column of the chart at Annexure A-2.
(c)Costs of the application be provided for.
(d) Any other and further order as this Hon'ble Tribunal deems fit in the nature and circumstances of the case be passed."
2. The brief facts as stated in the OA are that the applicants are challenging the impugned order dated 03.09.2015 issued by the respondent No.4 to the extent of treatment of movement of the applicants from the post of Highly Skilled-II (HS-II) to Highly Skilled-I (HS-I) as promotion. It has been averred that by letter dated 14.06.2010, the Ministry of Defence directed that the placement of individuals resulting from the restructuring shall be made in relaxation of conditions like trade test etc. as a one time measure. Subsequently, by letter dated 6 OA No.691/2015 28.05.2014, the respondent No.2 directed that since the process of selection was not to be held while effecting promotions from HS-II to HS-I during the period from 01.01.2006 to 14.06.2010, the said movement is not treated as promotion and, therefore, the principle of reservation is not applicable for such placement. The respondent No.3 has now issued impugned order dated 03.09.2015 effecting promotions to the post of HS-I by which the applicants have been promoted from various dates ranging from 01.01.2006 to 01.09.2008. Such placement as HS-I has not been treated as promotion and principle of reservation is not made applicable. However, the said order states that for the purpose of ACP/MACP benefits placement of applicants to HS-I will be treated as promotion.
3. It has been submitted that the respondents illegally applied principle of reservation while bifurcating the post of HS-I 7 OA No.691/2015 and HS-II as on 01.01.2006 as well as while effecting further placements upto 14.06.2010. On 15.10.2012, the respondent No.1 circulated copy of judgment of the Hon'ble Supreme Court in the case of Bharat Sanchar Nigam Limited Vs. R. Santa Kumari Vellusami holding that the principle of reservation is not applicable for upgradations. Subsequently, respondent No.2 issued letter dated 28.05.2014 directing that principle of reservation is not applicable in the restructuring of cadre of Artisan Staff as per letter dated 14.06.2010 from 01.01.2006 to 14.06.2010.
3.1 The applicants made representations for removal of element of reservation in respect of placement done in HS-I from 01.01.2006 to 14.06.2010. However, no action was taken. Therefore, the applicants filed OA No.226/2015 praying that the principle of reservation should not be applicable while effecting placements to the post of HS-I during 01.01.2006 to 14.06.2010. 8 OA No.691/2015 They also prayed for grant of First Financial Upgradation under the MACP Scheme in the Grade pay of Rs.4200/-. The said OA was disposed of by this Tribunal vide order dated 09.04.2015 granting liberty to the applicants to make representation regarding MACP and direction to the respondents to dispose of the representation on grant of MACP and also regarding element of reservation.
3.2 The representation of the applicants dated 05.05.2015 was decided vide impugned order dated 03.09.2015 thereby antedating upgradation of the applicants as Telecom Mechanic HS-I. On account of removal of element of reservation, dates of placement of applicants Nos.3 to 10 as HS-I were slightly modified. However, it has been stated in the impugned letter that placement of HS-II to HS-I would be treated as promotion for the purpose of ACP/MACP benefits w.e.f. 01.01.2006. Aggrieved by the above communication, 9 OA No.691/2015 the applicants have filed this OA.
4. On notice, the respondents have filed their affidavit in reply and contested the OA. It has been submitted that the applicants are working in the 512 Army Base Workshop, Kirkee, Pune which is a Military establishment of the Indian Army functioning under the Ministry of Defence. This unit is overhauling the military equipment. It has a work force of approximately 2000 civilians and 400 military personnel. Its functioning is governed by the Rules and Regulations formulated by the Govt. of India and Ministry of Defence which are disseminated down the channel through various Headquarters in the organizational structure. This unit follows these rules and regulations explicitly in letter and spirit.
4.1 It has been submitted that Government of India, Ministry of Defence vide letter No.II/(5)/2009-D(Civ-I) dated 14.06.2010 10 OA No.691/2015 introduced new grade structure in the industrial as well as in the non industrial trades w.e.f. 01.01.2006. The earlier grade structure as per Govt. of India Min. of Defence letter No.11(1)/2002/D(CViv-I) dated 20.05.2003 the then and the new grade structure are as under:-
Srl Grade structure as Ratio Grade structure as Ratio No. per GOI MoD letter per GOI MoD letter dated 20 May 2003 dated 14.06.2010 a. Skilled (Sk) Pay 45% Skilled, Pay Band 45% scale Rs.3050-4590 5200-20200 + Grade Pay Rs.1900/-
b. Highly Skilled 55% Highly Skilled Gde- After placing
(HS) Pay scale II(HS-II) Pay Band 25% as MCM
Rs.4000-6000 5200-20200 + Grade the remaining
Pay Rs.2400/- be divided in
the ratio of
50:50, i.e. HS-
II and HS-I
Highly Skilled Gde-
I (HS-I) Pay Band
5200-20200 + Grade
Pay Rs.2800/-
c. Master Craftsman 25% Master Craftsman 25% of 55%
(MCM)(Not Part of (MCM) (Will be part
hierarchy and of of hierarchy and
Centrally Centrally controlled
controlled post at HS post at Headquarters Headquarters Base Base Wksp GP) Pay Wksp GP) Pay Band 9300-34800 + scale Rs.4500-7000 Rs.4200/-11 OA No.691/2015
Accordingly, the above said restructuring of 14.06.2010 had been implemented w.e.f. 01.01.2006 in the following manner:
(a) Skilled 45% - Pay Band PB-1, Grade Pay Rs.1900/-
(b) HS-II - Pay Band PB-1, Grade Pay Rs.2400/-
(c) HS-I 55%* - Pay Band PB-1, Grade Pay rs.2800/-
(d) MCM - Pay Band PB-2, Grade Pay Rs.4200/-
* After placing 25% as MCM the remaining divided in the ratio of 50 : 50 i.e. HS-II and HS-I. 4.2 It has been submitted that as per para 3(a) of GOI letter dated 14.06.2010, the restructuring has been carried out by respondent No.4 i.e. Comdt & MD 512 Army Base Wksp, Pune. The resultant vacancies i.e Skilled to HS-II and HS-II to HS-I had also been filled up.
4.3 It has been further submitted that the applicants were initially appointed as TCM. As per GoI MoD letter dt 14.06.2010, the applicants amongst others have been placed as Highly Skilled Grade I with Grade Pay of Rs.2800/- effective from 01.01.2006 and arrears of pay have been 12 OA No.691/2015 disbursed. GOI MoD vide ID No.11(5)/2009-D(Civ-I) dt.01.12.2010 vide para 2(i) amply clarified that placement of 50% of the existing Highly Skilled Workers (Grade Pay Rs.2400/-)as Highly Skilled Worker Grade - I (Grade Pay Rs.2800/-) with effect from 01.01.2006 will be treated as promotion. MoD vide ID 11(5)/2009-D(Civ- I)dt.20.06.2011 clarified that 50% of erstwhile Highly Skilled Workers as Highly Skilled Grade-I for the purpose of ACP/MACP has been reconsidered in consultation with the Department of Personnel & Training and Ministry of Finance and reiterated the earlier stand i.e. placement of 50% of the erstwhile Highly Skilled Workers Grade-I with effect from 01.01.2006 will be treated as promotion for the purpose of ACP/MACP. Therefore, stand taken by the respondents in respect of the applicant of the present OA is correct. Since the applicants have been granted the Grade Pay of Rs.2800/- as HS Grade-I which will be treated as 13 OA No.691/2015 one promotion. Therefore, they are not eligible for further upgradation under MACP ignoring the placement of HS-I in the Grade Pay of Rs.2800/-.
5. The applicants have filed rejoinder to the reply reiterating the same argument which are taken in the OA.
6. During the arguments, learned counsel for the applicants has reiterated the same argument. He has placed reliance on the decision of Hon'ble High Court of Judicature at Madras order dated 24.06.2019 in Writ Petition No.26447/2016 [Union of India and Ors. Vs. H. John Nepomission & Ors) in which the Hon'ble High Court has held that the placement of the Highly Skilled personnel in the post of Highly Skilled Grade-I would not amount to promotion. He has further placed reliance on the judgment of Hon'ble High Court of Karnataka, Bengaluru dated 04.03.2016 in the case of Union of India and Ors. Vs. Shri Ashwathanarayana K.L.& Ors whereby the order of the Tribunal dated 14 OA No.691/2015 21.08.2014 in OA No.597-599/2014 to the extent of directing the petitioners to maintain status-quo of the grade of the applicants as on 21.04.2014 (if they have not been reverted) and their position on the promoted posts have to be continued, was quashed.
7. Senior Advocate Shri R.R. Shetty appearing for the respondents on the other hand would submit that the claim of the applicants not to treat the upgradation from HSK-II to HSK-I as promotion is not correct. He submitted that it was a policy decision of the Government of India to restructure the cadre of Highly Skilled to create two grades from Highly Skilled (HS) into HSK-II and HSK-I in 2010 with retrospective effect 01.01.2006. Shri Shetty submits that as per clarification issued by DoPT, the placement from HS-II to HS-I by giving one time relaxation from the trade test has been treated as promotion and element of reservation has been applied. If 15 OA No.691/2015 the decision of the Government is reversed, many persons who have been promoted from HS-II to HS-I because of the reservation would have to be reverted. Therefore, those persons who are likely to be adversely affected were necessary and proper parties. However, the applicants have not made affected persons as party respondents and therefore, the OA suffers from non-joinder of parties as held by the Hon'ble Supreme Court in the case of Udit Narain Singh Malpaharia Vs. Additional Member Board of Revenue, Bihar, 1963 Supp (1) SCR 676. Shri Shetty would further argue that by non-joinder of parties, promotions already granted cannot be upset in absence of making the affected parties as party respondents. He has further placed reliance on the decision of Hon'ble Supreme Court in the case of Khetrabasi Biswal Vs. Ajaya Kumar Baral and Others, 2003 SCC Online SC 1292 to argue that if the parties are not impleaded in the OA, it has to be dismissed.
16 OA No.691/20157.1 Shri Shetty would further argue that the department has restructured the cadre of Highly Skilled to create two grades of HSK-I and HSK-II and, therefore, promoting 50% of HSK-II to HSK-I is a promotion. He submits that relaxation of trade test was given as a one time measure. He further submits that Government policy decision dated 01.12.2010 by which the new cadres were created has not been challenged by the applicants. Further, the order of Government of India, Ministry of Defence dated 14.06.2010 has also not been challenged by the applicants. He has placed reliance on the judgment of Hon'ble Supreme Court in the case of State of Rajasthan Vs. Fateh Chand Soni, (1996) 1 SCC 562,and on the judgment of Three Judges Bench of Hon'ble Supreme Court in the case of Jarnail Singh and Others Vs. Lachhmi Narain Gupta and Others, 2022 SCC Online SC 96 to argue that the applicants' promotion to HSK-I was a promotion and not upgradation simplicitor.
17 OA No.691/20157.2 Mr. Shetty would further submit that the Nodal Ministry for official/employees of the Government of India is department of Personnel and Training and they have treated it as promotion. He submitted that as per the Ministry of Defence ID No.11(5)/2009 D(Civ-I) dated 01.12.2010 clarified by Director General of EME (Civ) vide letter PO B/15251/MACP/EME Civ (C-4) dated 18.03.2015 placement from Highly Skilled II idn(Grade Pay 2400/-) to Highly Skilled Grade-I idn(Grade Pay 2800/-) will be treated as promotion for the purpose of ACP/MACP benefits w.e.f. 01.01.2006. He submits that the communication dated 03.09.2015 was only to convey the decision of the Government dated 01.12.2010 and clarification issued by the Director General dated 18.03.2018 which has not been challenged by the applicants.
7.3. Shri Shetty would further argue that para 9 of the Office Memorandum dated 19.05.2009 18 OA No.691/2015 which has issued the MACP Scheme makes it clear that any interpretation/clarification of doubt as to the scope and meaning of the provisions of the MACP Scheme shall be given by the Department of Personnel and Training (Establishment-D). The scheme would be operational w.e.f. 01.09.2008. In other words, financial upgradations as per the provisions of the earlier ACP Scheme (of August, 1999) would be granted till 31.08.2008. He submits that the scheme itself provides the authority to DoPT to interpret/issue clarification of doubts as to the scope and meaning of the provisions of the MACP Scheme. He submits that the said DoPT OM dated 19.05.2009 has also not been challenged by the applicants. He further argued that para 9 of the MACP scheme provides that financial upgradation under the MACP Scheme shall be purely personal to the employee and shall have no relevance to his seniority position. As such, there shall be no 19 OA No.691/2015 additional financial upgradation for the employees on the ground that the junior employee has got higher under the MACP. He submits that the applicants have not challenged MACP Scheme. Therefore, he submits that the OA is devoid of any merit and needs to be dismissed with cost.
8. We have heard learned counsels for both the sides and perused the pleadings and documents filed on record.
9. The issue involved in this OA is whether the promotion from Highly Skilled Grade-II to Highly Skilled Grade-I is a promotion and if so, whether element of reservation was applicable and whether the applicants are entitled to First Financial Upgradation in the Grade Pay of Rs.4200/-.
10. It is an admitted fact that earlier there was only one post of Highly Skilled. The Ministry of Defence vide order dated 14.06.2010 has introduced a new structure in the Industrial 20 OA No.691/2015 as well as in the Non-Industrial trades w.e.f.01.01.2006 in place of earlier grade structure which was prevailing in view of earlier Ministry of Defence letter No.11(1)/2002/D(Civ-I) dated 20.05.2003 as under :
Srl Grade structure as Ratio Grade structure as Ratio No. per GOI MoD letter per GOI MoD letter dated 20 May 2003 dated 14.06.2010 a. Skilled (Sk) Pay 45% Skilled, Pay Band 45% scale Rs.3050-4590 5200-20200 + Grade Pay Rs.1900/-
b. Highly Skilled 55% Highly Skilled Gde- After placing
(HS) Pay scale II(HS-II) Pay Band 25% as MCM
Rs.4000-6000 5200-20200 + Grade the remaining
Pay Rs.2400/- be divided in
the ratio of
50:50, i.e. HS-
II and HS-I
Highly Skilled Gde-
I (HS-I) Pay Band
5200-20200 + Grade
Pay Rs.2800/-
c. Master Craftsman 25% Master Craftsman 25% of 55%
(MCM)(Not Part of (MCM) (Will be part
hierarchy and of of hierarchy and
Centrally Centrally controlled
controlled post at HS post at Headquarters
Headquarters Base Base Wksp GP) Pay
Wksp GP) Pay Band 9300-34800 +
scale Rs.4500-7000 Rs.4200/-
21 OA No.691/2015
The perusal of the above table shows that entire cadre of the skilled was restructured by creating two posts of Highly Skilled Grade-II (HS-II) Pay Band Rs.5200-20200 with Grade Pay of Rs.2400/-
and Highly Skilled Grade-I (HS-I) Pay Band Rs.5200-20200 with Grade Pay of Rs.2800/-. In the earlier scheme, Skilled (SK) employees in the pay scale of Rs.3050-4590 were promoted to the Highly Skilled (HS) in the pay scale Rs.4000-6000. After restructuring, skilled employees were put in Pay Band of Rs.5200-20200 with Grade Pay Rs.1900. On promotion from Skilled to Highly Skilled, they were put in Highly Skilled Grade II (HS-II) in Pay Band Rs.5200-20200 with Grade Pay of Rs.2400/-. Out of the above, 25% are promoted to the Master Craftsman (MCM) and remaining are divided in the ratio of 50:50 in the grade of HS- II and HS-I. In the earlier scheme of 2003, Master Craftsman (MCM) was not a part of hierarchy and was a centrally controlled post at 22 OA No.691/2015 Headquarters Base Workshop in the pay scale of Rs.4500-7000. However, in the new restructure, the post of Master Craftsman has been brought in the hierarchy and centrally controlled post at Headquarters Base Workshop in Pay Band Rs.9300- 34800/- with Grade Pay of Rs.4200/-. While the post of HSK-II and HSK-I are in pay band I, the post of Master Craftsman is in pay band II. In the new scheme, to be promoted to Master Craftsman, the employee has to first to be placed in HS-I. Thus, the post of HS-I becomes a feeder cadre for promotion to Master Craftsman. Therefore, it cannot be said that HS-II and HS-I are the same post or in same grade.
11. Learned Senior counsel for the respondents Shri Shetty has argued that the grade of HS-II and HS-I were created and one time relaxation of trade test was given as a one time measure for promoting 50% of HSK-II to HSK-I. He submitted that the Government Policy decision 23 OA No.691/2015 dated 01.12.2010 by which the new cadres were created has not been challenged by the applicants. Therefore, the scheme has been accepted by the applicants.
12. We find that the order of Government of India, Ministry of Defence dated 14.06.2010 has not been challenged by the applicants and, therefore, they have accepted the restructuring scheme as it is. Therefore, it is not open for the applicants to claim that by creating all together new cadre of HS-I which was not there earlier and placing the applicants in HS-I by giving them one time relaxation from the trade test was not a promotion.
13. We further find that the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of personnel and Training) vide OM No.35034/3/2008-Estt.(D) dated 19.05.2009 has issued Modified Assured Career Progression Scheme (MACPS). The DoPT is a nodal 24 OA No.691/2015 Ministry for Central Government employees belonging to Group 'A', 'B' and 'C'. Para 9 of the scheme says that any interpretation/clarification of doubt as to the scope and meaning of the provisions of the MACP Scheme shall be given by the Department of Personnel and Training. For the sake of convenience, para 9 of the OM dated 19.05.2009 is extracted herein as under:
"9. Any interpretation/clarification of doubt as to the scope and meaning of the provisions of the MACP Scheme shall be given by the Department of Personnel and Training (Establishment-D). The scheme would be operational w.e.f. 01.09.2008. In other words, financial upgradations as per the provisions of the earlier ACP Scheme (of August, 1999) would be granted till 31.08.2008."
Thus, the plain reading of the above para makes it clear that the only DoPT is competent to interpret/issue clarification in respect of DoPT. Para 11 of the OM further states as under:
"11. It is clarified that no past cases would be re-opened. Further, while 25 OA No.691/2015 implementing the MACP Scheme, the differences in pay scales on account of grant of financial upgradation under the old ACP Scheme (of August 1999) and under the MACP Scheme within the same cadre shall not be construed as an anomaly."
14. Admittedly, the OM dated 19.05.2019 has not been challenged by the applicants. Moreover, the MACP Scheme has been upheld by the Hon'ble Supreme Court in the case of Union of India and Others Vs. M.V. Mohanan Nair, (2020)2 Supreme Court Cases (L&S) 1. Since para 9 of the DoPT OM dated 19.05.2009 has not been challenged which empowers the DoPT to issue clarification/interpretation, it is not open for the applicants at this stage to say that promotion from HS-II to HS-I by giving them only one time relaxation from the trade test was not a promotion.
15. We further find that Ministry of Defence vide ID No.11(5)/2009 D(Civ-I) dated 01st December, 2010 clarified by Director General of 26 OA No.691/2015 EME(Civ) has clarified that placement from Highly Skilled II idn (Grade Pay Rs.2400) to Highly Skilled Grade-I idn (Grade Pay Rs.2800/-) will be treated as promotion for the purpose of ACP/MAO benefits w.e.f. 01.01.2006. This communication of the Ministry of Defence has not been challenged by the applicants.
16. Learned Senior counsel for the respondents Shri Shetty has raised the issue of non-joinder of parties on the ground that those persons who have been promoted from HS-II to HS-I will be adversely affected, if the same is not treated as promotion. However, since they have not been made as party respondents, they are not before this Tribunal to defend their case and, therefore, this OA suffers from non-joinder of parties. In support of his arguments, Shri Shetty has relied on decision of Hon'ble Supreme Court in the case of Udit Narain Singh Malpaharia vs. Additional Member Board of Revenue, Bihar and 27 OA No.691/2015 Another, 1962 SCC OnLine SC 130. We have gone through the above judgment of Hon'ble Supreme Court which was decided by bench of Four Hon'ble Judges of the Hon'ble Supreme Court. It will be appropriate to extract para Nos.9 to 15 of the judgement herein as under:
9. The next question is whether the parties whose rights are directly affected are the necessary parties to a writ petition to quash the order of a tribunal. As we have seen, a tribunal or authority performs a judicial or quasi- judicial act after hearing parties. Its order affects the right or rights of one or the other of the parties before- it. In a writ of certiorari the defeated party seeks for the quashing of the order issued by the tribunal in favour of the successful party. How can the High Court vacate the said order without the successful party being before it.
Without the presence of the successful party the High Court cannot issue a substantial order affecting his right. Any or that may be issued behind the back of such a party can be ignored by the said party, with the result that the tribunal's order would be quashed but the right vested in that party by the wrong order of the tribunal would continue to be effective. Such a party, therefore, is a necessary party and a petition filed for the issue of a writ of certiorari without making him a party or without impleading him subsequently, if allowed by the court, would certainly be incompetent. A party whose interests are directly affected is, therefore, a necessary party.
10. In addition, there may be parties who may be described as proper parties, that is parties whose presence is not necessary for making an effective order, but whose presence may facilitate the settling of all the questions that may be involved in the controversy. The question of making such a person as a party to a writ proceeding depends upon the judicial discretion of the 28 OA No.691/2015 High Court in the circumstances of each case. Either one of the parties to the proceeding may apply for the impleading of such a party or such a party may suo motu approach the court for being impleaded therein.
11. The long established English practice, which the High Courts in our country have adopted all along, accepts the said distinction between the necessary and the proper party in a writ of certiorari. The English practice is recorded in Halsbury's Laws of England, Vol.11, 3rd Edn. (Lord Simonds') thus in paragraph 136 :
"The notice of motion or summons must be served on all persons directly affected, and where it relates to any proceedings in or before a court, and the object is either to compel the court or an officer thereof to do any act in relation to the proceedings or to quash them or any order made therein, the notice of motion or summons must be served on the clerk or registrar of the court, the other parties to the proceedings, and (where any objection to the conduct of the judge is to be made) on the judge........"
In paragraph 140 it is stated :
"On the hearing of the summons or motion for an order of mandamus, prohibition or certiorari, counsel in support begins and has a right of reply. Any person who desires to be heard in opposition, and appears to the Court or judge to be a proper person to be heard, is to be heard notwithstanding that he has not been served with the notice or summons, and will be liable to costs in the discretion of the Court or judge if the order should be made......"
.............
Both the English rules and the rules framed by the Patna High Court lay down that persons who are directly affected or against whom relief is sought should be named in the petition, that is all necessary parties should be impleaded in the petition and notice served on them. In "The Law of Extra-ordinary Legal Remedies" by Ferris, the procedure in the matter of impleading parties is clearly described at p.201 thus: 29 OA No.691/2015
"Those parties whose action is to be reviewed and who are interested therein and affected thereby, and in whose possession the record of such action remains, are not only proper, but necessary parties. It is to such parties that notice to show cause against the issuance of the writ must be given, and they are the only parties who may make return, or who may demur. The omission to make parties those officers whose proceedings it is sought to direct and control, goes to the very right of the relief sought. But in order that the court may do ample and complete justice, and render a judgment which will be binding on all persons concerned, all persons who are parties to the record, or who are interested in maintaining the regularity of the proceedings of which a review is sought, should be made parties respondent."
This passage indicates that both the authority whose order is sought to be quashed and the persons who are interested in maintaining the regularity of the proceeding of which a review is sought should be added as parties in a writ proceeding. A Division Bench of the Bombay High Court in Ahmedalli v. M. D. Lalkaka (3) laid down the procedure thus :
"I think we should lay down the rule of practice, that whenever a writ is sought challenging the order of a Tribunal, the Tribunal must always be a necessary party to the petition. It is difficult to understand how under any circumstances the Tribunal would not be a necessary party when the petitioner wants the order of the Tribunal to be quashed or to be called in question. It is equally clear that all parties affected by that order should also be necessary parties to the petition."
A Full Bench of the Nagpur High Court in Kanglu Baula v. Chief Executive Officer (4) held that though the elections to various electoral divisions were void the petition would have to be dismissed on the short ground that persons who were declared elected from the various constituencies were not joined as parties to the petition and had not been given an opportunity to be heard before the order adverse to them was passed. The said decisions also support the view we have expressed.
30 OA No.691/2015
12. To summarise : In a writ of certiorari not only the tribunal or authority whose order is sought to be quashed but also parties in whose favour the said order is issued are necessary parties. But it is in the discretion of the court to add or implead proper parties for completely settling all the questions that may be involved in the controversy either suo motu or on the application of a party to the writ or an application filed at the instance of such proper party.
13. In the present case Phudan Manjhi and Bhagwan Rajak were parties before the Commissioner as well as before the Board of Revenue. They succeeded in the said proceedings and the orders of the said tribunal were in their favour. It would be against all principles of natural justice to make an order adverse to them behind their back; and any order so made could not be an effective one. They were, therefore, necessary parties before the High Court. The record discloses that the appellant first impleaded them in his petition but struck them out at the time of the presentation of the petition. He did not file any application before the High Court for impleading them as respondents. In the circumstances, the petition filed by him was incompetent and was rightly rejected.
14. That order was made on July 3, 1962; and the special leave petition was filed on July 18, 1962. Even in the special leave petition the said two parties were not impleaded. Learned counsel for the appellant suggests that this Court may at this very late stage direct them to be made parties and remand the matter to the High Court for disposal. This request is belated and cannot, therefore, be granted. In this view it is not necessary to express our opinion on the other questions raised.
15. The appeal fails and is dismissed with costs. Appeal dismissed.
31 OA No.691/2015It is clear from the above judgment of Hon'ble Supreme Court which was decided by Four Hon'ble Judges in the present case also those persons who were promoted from HS-II to HS-I by applying the element of reservation are necessary and proper parties. Since the applicants have failed to make them as party respondents, we agree with the submissions of learned senior counsel for the respondents Shri Shetty that the OA suffers from non-joinder of parties and, therefore, deserves to be dismissed on this ground alone.
17. Further, looking to the order dated 03.09.2015 and list appended thereto as many as 30 Telecom Mechanic HS-I as on 14.06.2010 have been treated promoted for the purpose of ACP/MAO benefits w.e.f. 01.01.2006. The present OA has been filed by the applicants whose names are placed at serial Nos.21 to 30 in the aforesaid list without being impleading any employees who are above in the aforesaid list.
32 OA No.691/2015
18. In these circumstances and in view of the aforesaid discussion following the proposition of law laid down by the Hon'ble Supreme Court in the case of Udit Narain Singh Malpaharia (supra), the present Original Application is liable to be dismissed and is hereby dismissed. Pending MAs, if any, stand closed. No order as to costs.
(Shri Umesh Gajankush) (Mr. Shri Krishna)
Member (J) Member (A)
ma.
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