Central Administrative Tribunal - Ernakulam
A.C.Jowharthbi D/O K.Koyamma vs The Administrator on 15 October, 2015
Author: P.Gopinath
Bench: P.Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
ORIGINAL APPLICATION NOs. 868/2013
and 887/2013
Thursday this the 15th day of October, 2015
CORAM
Hon'ble Mr. Justice N.K.Balakrishnan, Judicial Member
Hon'ble Mrs. P.Gopinath, Administrative Member
OA 868/2013
1 C.P.Abdussaleem S/o M.K.Kasmikoya, aged 38 years
working as Paper Issuer, Lakshadweep government Press,
Kavaratti (residing at Chemmanampally House,
Kalpeni Island, Union Territory of Lakshadweep).
2 T.P. Mohammed Shafi Kurashi S/o Ahammed, aged 38 years
working as Mazdoor, Lakshadweep Government Press,
Kavaratti (residing at Thithikuttiyapura House,
Kavaratti Island, Union Territory of Lakshadweep)
OA 887/2013
1 A.C.Jowharthbi D/o K.Koyamma, aged 47 years
working as Galley Proof Pressman, Lakshadweep Government
Press, Kadamat (residing at Ambathchetta House, Androth
Island, Union Territory of Lakshadweep).
2 P.S.Kasmikoya S/o Subrambi Khalid, aged 44 years
working as Gally Proof Pressman, Lakshadweep government
Press, Kadmat (residing at Puthiya Surambi House, Kadmat
Island, Union Territory of Lakshadweep).
3 Hamzakoya PS S/o Subrambi Khalid, aged 32 years
working as Packer, Lakshadweep Government Press,
Kadmat (Residing at Puthiya Surambi House, Kadmat Island
Union Territory of Lakshadweep)
. . . . Applicants
(By Advocate Mr. Joby Cyriac)
Versus
1 The Administrator, Union Territory of Lakshadweep
Kavaratti-682555.
2. The Union of India, represented by the Secretary
Ministry of Urban Affairs and Employment
Department of Urban Development, New Delhi-1
3. The Director, Department of Printing & Stationary,
Kavarartti-682555.
. . . . . Respondents in OA 868/2013
(By Advocate Mr. S.Radhakrishnan of R. 1 &3
Advocte Mr. P.G.Jayan for R.2)
1 The Administrator, Union Territory of Lakshadweep
Kavaratti-682555.
2. The Director, Department of Printing & Stationary,
Kavarartti-682555.
3. The Union of India, represented by the Secretary
Ministry of Urban Affairs and Employment
Department of Urban Development, New Delhi-110 001.
. . . . Respondents in OA 887/2013
(By Advocate Mr. S.Radhakrishnan for R.1&2
None for R.3)
This application having been finally heard on 06.10.2015, the Tribunal on
15.10.2015 delivered the following:
ORDER
Per: Justice N.K.Balakrishnan, Judicial Member The two applicants in OA 868/2013 and the three applicants in OA 887./2013 have filed these Original Applications seeking similar reliefs. They seek quashment of the impugned orders. They also seek a direction to be given to the respondents 1&2 to conduct trade test to the applicants within a time frame and to promote the applicants to the post of Machineman Grade III on the basis of the provisions of Annexure A1 Recruitment Rules.
2. Brief facts necessary for the case can be stated thus.
3. The applicants were working in the Government Press, Lakshadweep as Paper Issuer, Mazdoor, Galley Proof Pressman and Packer. They were working for more than four years. Five posts of Machineman Grade III were lying vacant under the department. As per Annexure A1 Recruitment Rules in force those promotional posts are to be filled by promotion failing which by direct recruitment. As per Clauses 11 and 12 of Annexure A1 promotion to the post has to be made from the post of LGP in the Grade Pay of Rs. 1800/- with three years regular service subject to qualifying trade test. Thus according to the applicants they are entitled to be promoted subject to their qualifying in the trade test. Representations were given to the respondents to promote the applicants to the vacant posts as mentioned above. No decision was taken on those representations. The respondents contend that the promotion post will be filled up only after amendment of Annexure A1 Recruitment Rules (vide Annexure A3 and A3(a) orders). Annexure. A3 and A3(a) orders are illegal. Post lying at a point of time is to be filled in terms of the Recruitment Rules in force at the time of occurrence of vacancy and only if no candidate is found to be qualified the same can be filled by amended Recruitment Rules, if any. Hence the applicants contend that promotion may be effected as per Annexure A1 Recruitment Rules after conducting trade test.
4. The respondents resisted the OA contending as follows; 5 Due to implementation of advanced technology, Letter Press has given way to Offset Printing Technology and hence the existing Compositors (24 Posts) became surplus, the department initiated action to deploy them to other sections by re-designating the 12 posts of Compositor Gr.II as Assistant DTP Operator and remaining 12 posts as Machineman Gr.III since these posts are carrying same pay scales. The department has given ample opportunities to the Compositors to exercise their option vide Annexure R1(a). The pay for the posts of Compositor Gr.II and Machine man Gr.III is one and the same ie. Rs.5200-20000 GP Rs. 1900/-. Except one person no one has chosen the re-designated post of Machineman Gr.III Hence no decision was so far taken on distribution of Compositor of Gr.II to the two categories, namely Asst.DTP Operator and Machine man Gr.III.
5. All persons who are working as Compositor Gr.II approached this Tribunal filing OA 663/2013 and connected cases. As per order dated 19.7.2013 this Tribunal directed the Administration to forward the representation to the Ministry of Urban Development. In OA 663/2013 this Tribunal directed the first respondent to refer the matter to the second respondent, who will consider the mater, if necessary with the third respondent, on the same line as action taken in identical matters and to take a decision on up-gradation of the pay of the post of Compositor Gr.II at par with Government of India press vide Annexure R1(b). The matter is pending before the Govt. of India, Ministry of Urban Development for a decision. Some of the printing staff working in LGP filed OA 317/2011 for upgradation of scale of pay of Machineman Gr.III as applicable to similar persons of other Govt. of India presses. Those representations were also forwarded to the Ministry of Urban Development as directed by this Tribunal vide Annexure R1(c). The Ministry has directed the Administration to amend the Recruitment Rules for the upgraded post including Machine man Gr.III at par with Government of India Press and designate the posts as Offset Machineman. The department approached the Ministry as well as the Director of Printing, Government of India to get a copy of the amended Recruitment Rules as per the 6th CPC. But the Ministry has informed that the Recruitment Rules of the posts except Assistant Plate Maker has not been revised since the Government of India has not so far finalized the Recruitment Rules as per the 6th CPC. It was also decided to keep in abeyance all appointments pending amendment of the Recruitment Rules since the 6th CPC had recommended higher pay scale with higher qualification. The administration has taken a conscious decision not to fill up the existing vacancy pending amendment of the Recruitment Rules. The vacancies can be filled up only in accordance with the amended Recruitment Rules. Hence the respondents contend that the relief sought for in the applications cannot be granted
6. A rejoinder has been filed by the applicants stating that the third respondent has granted its approval to re-designate as Offset Machine man and revised the scale and in that order the Administrator has also directed to make suitable amendment in the Recruitment Rules. That order was passed by the Ministry on 12.1.2012. Thereafter on 27.3.2012 the employees working as Compositor Gr.II were given option by the Administrator to select their choice to work either as Astt. DTP Operator or Machineman Gr.III. The said post will become non-extant only on the amendment of the present Recruitment Rules. The direction given by the third respondent to carry out suitable amendment in the existing Recruitment Rules has not been done. The 'conscious decision' stated to have been taken by the Administrator not to fill up the existing vacancies is vitiated by arbitrariness.
7. An additional reply statement has been filed by the respondents reiterating the contention that the Recruitment Rules has to be revised at par with Government of India Presses as directed by the Ministry. The Government of India has not amended the Recruitment Rules so far as per the 6th CPC.
8. The point for consideration is whether the respondents should be directed to promote the applicants to the post of Machineman Gr.III on the basis of the existing Recruitment Rules?
9. Annexure R1(b) is the order passed by this Tribunal on 19.7.2013 in OA 663/13 and connected cases. In the light of the earlier orders passed by this Tribunal that OA was also disposed of with a direction to the the first respondent Administrator, UT of Lakshadweep to refer the matter to the 2nd respondent Union of India, Ministry of Urban Affairs and Employment,Department of Urban Development to consider the representations of the applicants, if necessary in consulation with the 3rd respondent, Ministry of Finance, Govt. of India on the same lines as done in the past in identical matters. Annexure R1(c) is the order passed by the Government of India, Ministry of Urban Development dated 12.I.2012 as per which the respondents were directed to consider the representations of the applicants in OA 317/2011 which was an identical matter considered by this Tribunal in Annexure R1(b). In compliance of that direction, the Ministry of Urban Development passed the following order:
'(i) A proposal was received from the UT of Lakshadweep for revision of scales of pay for the posts of Machineman Gr.III from Rs. 950-1500 to Rs. 1400-2300, Machineman Gr.II from Rs. 1200-2040 to Rs. 1400-2300 and Senior Printer (Offset) from Rs. 1320-2040 to Rs. 1400-2300 in the Department of Printing & Stationery, Lakshadweep w.e.f.31.10.1989 and re-designation of the posts as Assistant Offset Machineman.
(ii) The proposal received form UT of Lakshadweep and the representations of the applicants to OA No.317/2011 have been examined in accordance with the provisions contained in Ministry of Finance, Department of Expenditure OM No.31(1)-IC/88 dated 31.10.1989.
(iii) Taking into consideration the nature of duties & responsibilities and eligibility requirements for appointment to the posts of Machineman Grade III/Machineman Gr.II/Senior Printer (Offset) in the UT of Lakshadweep vis-a-
vis the post of Offset Machineman in Govt. of India Presses, these posts in UT of Lakshadweep have been found comparable with similar posts in Govt. of India presses and therefore approval is hereby granted for re-designation of the posts as Offset Machineman and revision of scale of pay from Rs. 950-1500/Rs.1200-2040/Rs, 1320-2040 to Rs. 1400-2300 w.e.f. 31/10/1989. However, UT of Lakshadweep may make suitable amendments in the Recruitment Rules for these posts so as to bring them at par with Govt. of India Presses.'
10. In view of what is stated above it can be seen that there was change in the nature of duties and responsibilities and eligibility requirements for appointment to the post of Machineman Gr.III/Gr.II/Sr.Pritner(Offset) in the UT of Lakshadweep vis-a-vis the post of Offset Machineman in Govt, of India Presses. These posts in UT of Lakshadweep were found to be comparable with similar posts in Govt. of India Presses. Approval was granted by the Ministry for re-designation of the posts as Offset Machineman and revision of pay scale was also allowed. There is a clause that UT of Lakshadweep may make suitable amendments in the Recruitment Rules for these posts so as to bring them at par with Government of India Presses. There was upgradation/re- designation of the post. There was consequent revision of scale also. When there is a re-designation and upgradation of post with consequential revision of scale, the employer will legitimately expect more qualified, talented and experienced persons to be selected for the said post. As such it is well discernible that the first respondent has made a conscious decision not to fill up the vacancies as per the existing Recruitment Rules. When the present essential qualifications are of lesser degree consequential amendment of the Recruitment Rules should be there and so it can be certainly found that there was a conscious decision not to fill up the vacancies as per the existing Recruitment Rules.
11. The learned counsel for the respondents would submit that in the light of the recommendation of the 6th CPC, Recruitment Rules with regard to similar posts in Govt. of India Presses was to be made by the Govt.of India and only in tune with the same the first respondent Administrator would be able to amend the Recruitment Rules. The 2 nd respondent has not amended the Recruitment Rules to make it in tune with the recommendation of the 6th CPC. Therefore, it is contended by the Ist respondent that if only the second respondent in consultation with the third respondent amends the Govt. of India Press Rules applicable in Govt. of India Presses with regard to similar posts, similar amendments can be brought about by the first respondent. It is also contended that the recommendations made were forwarded by the first respondent to the second respondent but no action was taken by the 2nd respondent. Therefore, the first respondent wanted to pass the buck on to the 2 nd respondent stating that unless the Recruitment Rules applicable to the Government of India Presses is amended, no amendment can be made by the first respondent so as to keep it on par with the similar posts of Govt. of India Presses.
12. It was held by the Hon'ble Supreme Court in Shankersan Dash Vs. Union of India - (1991) 3 SCC 47 : AIR 1991 SCW 1583:
'7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha and Others, [1974] 1 SCR 165; Miss Neelima Shangla v. State of Haryana and Others, [1986] 4 SCC 268 and Jitendra Kumar and Others v. State of Punjab and Others, [1985] 1 SCR 899. ' The said position was reiterated by the Hon'ble Supreme Court in State of Bihar and others Vs. MD. Kalimuddin and others - 1996 (2) SCC 7. In that case also the Government have taken a decision to revise the policy of reservation pending decision of the appointment of the wait-listed candidates was deferred. In that case it was contended that the Government had acted malafide that notwithstanding the availability of trained personnel the State Government was inclined to change the rules in that behalf. But the Apex Court held that it is not a valid ground to contend that the government had acted malafide. It was further held in that case:
'For the above reasons, we are of the opinion that even if it is assumed that the panel or select list had not expired at the date of filing of the writ petition, the refusal on the part of the Government to make appointments from the panel or select list, vide letter dated 27.5.1993,could not be condemned as arbitrary, irrational and or malafide. We therefor, reverse the view taken by the High Corut, set it aside and hold that that the original writ petition was liable to be dismissed and we hereby dismiss the same. No order as to costs.' In Union of India Vs./ K.V.Vijesh, (1996) 3 SCC 139 it was held that the government has identified to fill up the vacancy as per the existing vacancy position on the relevant date, referring to the decision of the Supreme Court in Y.V. Rangaiah and others Vs. J.Sreenivasa Rao and others, AIR 1983 SC 852. In Vijesh's case supra it was held that the existing vacancies were required to be filled up as per the law which stood prior to the date of the amended rules and that the mere fact that rules came to be amended subsequently does not empower the government not to consider persons who were eligible prior to the date of appointment. It is seen that the case related to the Rules which existed prior to the amendment of the rules. There, two sources were available for appointment as Sub Registrar, namely UDCs and LDCs. Subsequently, rules came to be amended taking away the right of the LDCs for appointment as Sub Registrar. The Hon'ble Supreme Court in Rangiah's case (supra) pointed out that prior to the amendment of the rules vacancies were existing and eligible candidates were required to be considered in accordance with the prevailing rules. If the government have not taken any conscious decision not to fill up the existing vacancies pending amendment of the rules the question may be different, the respondents contend. According to Respondents the govt. have taken a conscious decision not to make any appointment till the amendment of the rules.
13. Admittedly vacancies are in existence. The letter was sent by Respondent No.1 to Respondent No.2 in Jan. 2012. So far the rules have not been amended. When that is the position, should persons like the applicants be denied of their right of promotion till a decision is taken to amend the rules is the pertinent question put by the learned counsel for the applicants. As per Annexure R1(c) dated 12.1.2012 it was held that the post of Machineman Gr.II/Machineman Gr.II/Senior Printer (offset) in the UT of Lakshadweep have been found comparable with similar posts in the Government of India Presses and approval was granted for re-designation of the posts as Offset Machineman; revision in the pay scales was also ordered. The recruitment process has not been initiated by first respondent in view of the fact that the amendment to the Recruitment Rules was not brought about by 2nd respondent. As per Annexure R1(c) the Ministry of Urban Development, Government of India directed the first respondent to make suitable amendment in the Recruitment Rules for the post as aforesaid so as to bring them at par with Govt. of India Presses. As stated earlier the first respondent contends that similar amendment to the rules was not effected by the Union of India and so the Recruitment Rules could not be amended by the first respondent. Since there is upgradation and redesignation of the post, certainly experience required for such posts may also vary. The Recruitment Rules is to be amended and selection process is to be followed based on such Recruitment Rules, but it will not be proper on the part of this Tribunal to direct Respondent No. 2 to cause amendment of the Rules in a particular manner nor can the upgradation or re-designation of the post as ordered in Annexure R1(c) be set at naught. At the same time we cannot ignore the grievances voiced by the applicants. Considering the totality of the circumstances, we are inclined to dispose of the two O.As as follows:
(i) The first respondent will again make a request/recommendation to Respondents 2 and 3 to amend the Recruitment Rules as desired/directed in Annexure R1(c).
(ii) If the Ministry concerned of the Union of India does not amend the Recruitment Rules within four months from the date of production of a copy of this order, the first respondent can amend the Recruitment Rules in tune with Annexure R1(c).
(iii) If the Recruitment Rules is amended the selection process shall be completed within six months from the date the 2nd respondent/or first respondent causes amendment to the rules.
Or
(iv)if the Recruitment Rule is not amended respondents will initiate the selection process under the existing Recruitment Rules (Annexure.A1) to promote the applicants and similarly situated persons for the post of Machineman Grade III and complete the process within six months from the date of expiry of the period fixed for amendment of the Recruitment Rules.
(v) No order as to costs..
(P.Gopinath) (N.K.Balakrishnan)
Administrative Member Judicial Member
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