Central Administrative Tribunal - Delhi
All India Mes Barrack And Store Cadre ... vs Department Of Personnel And Training on 21 November, 2022
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O.A. No.935/2022
Item No.40
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 935/2022
This the 21st day of November, 2022
Hon'ble Mr. R N Singh, Member (J)
Hon'ble Mr. Tarun Shridhar, Member (A)
1. All India (MES) Barrack and Store Cadre
Association,
Western Command, Chandimandir
through its President Shri Arvind Kumar Mehta,
S/o Late Shri N D Mehta,
age 58 years,
working as Barrack Store Officer in the Office of
Garrison Engineer,
MES, Basoli(J&K)- 184201.
2. MES No. 510239, Surinder Singh
S/o Shri Gandharb Singh,
Age 40 years,
Working as Barrack Store Officer in the O/o
Commander Works Engineer,
Jammu,PIN-900172 C/o 56 APO.
3. MES No. 122070, Kaushik Ganguli
S/o Shri Ranjit Kumar Ganguli
age 41 years,
working as Barrack Store Officer in the O/o Garrison
Engineer, (South) Akhnoor PIN-181201(J&K).
4. MES No. A/716842, Utpal Dutta
S/o Late Shri S.K.Dutta,
age 52 years,
working as Barrack Officer in the O/o Garrison
Engineer (AF) Pathankot PIN-145001.
5. MES No. 486344, Vijay Kumar Verma
S/o Bihari Lal Verma age 35 years,
working as Barrack Store Officer in the O/o Garrison
Engineer (South), Bathinda PIN-151004.
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O.A. No.935/2022
Item No.40
6. MES No. 462578, Raj Kumar
S/o Shri S B P Singh,
age 37 years,
working as Barrack Store Officer in the O/o Garrison
Engineer (South), Ambala PIN-133001.
7. MES No. 316735, Vikrant Singh
S/o Shri Chanan Singh,
age 35 years, working as Barrack Store Officer in the
O/o Garrison Engineer (AF), Ambala PIN-133001.
8. MES No. 470471, Dhirendra Singh
S/o Shri Maharaj Singh,
age 37 years, working as Barrack Store Officer in the
O/o Garrison Engineer, Palampur PIN-176061.
All are group A Officers
...Applicants
(By Advocate : Mr. A.K. Behera, Sr. Advocate assisted
by Shri Yogesh Sharma)
Versus
1. Union of India
Through its Secretary
Department of Personnel and Training,
Govt. of India,
Ministry of Personnel, Public Grievances & Pensions,
North Block New Delhi-110001.
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O.A. No.935/2022
Item No.40
2. The Secretary,
Ministry of Defence,
Room No.101-A South Block,
New Delhi.110011
3. Engineer-in-Chief,
Military Engineer Services,
Engineer-in- Chief's Branch,
Integrated HQrs of MoD (Army),
Kashmir House, Rajaji Marg, New Delhi-110011.
4. Director General (Personnel),
Pers Directorate of E-in-C's Branch
Integrated HQrs of MoD (Army), Kashmir House,
Rajaji Marg, New Delhi-110011.
5. Central Record Officer,
Office of CRO (Officers), Delhi Cantt- 110010.
6. Sh. S.P. Singh,
Director, CSCC Section,
Pers Directorate, Engineer-in-Chief's Branch,
Kashmir House, Rajaji Marg, New Delhi-110011.
7. Chief Engineer,
Headquarter Western Command,
Chandimandir C/o 56 APO-134-107.
8. Chief Engineer,
Headquarter Northern Command,
Udhampur (J&K) PIN 914698 C/o 56 APO.
...Respondents
(By Advocate : Mr. S.N. Verma)
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O.A. No.935/2022
Item No.40
O R D E R (ORAL)
Hon'ble Mr. Tarun Shridhar, Member (A):
The applicants belong to what is known as Barrack and Stores Cadre of Military Engineering Service and are aggrieved that after a long standing wait, the cadre review, which they had sought and which was approved, has been held in abeyance arbitrarily. They challenge the said decision to keep the said cadre review in abeyance by virtue of the present OA seeking the following relief:
"i) That the impugned letters dated 17.9.2018(A-28), 31.8.2018(A-29) 8.10.2018 (A30) be quashed and set aside.
ii) That it be declared that the First Cadre Review of B/S cadre of MES was rightly granted by the Competent Authority i.e. respondents No.2 and 3 and sanctioned by the President of India vide letter dated 15.12.2017 and implemented vide letter dated 10.5.2018.
iii) That the respondents be directed to implement the first Cadre Review of B/S in MES in toto forthwith and consequently release all consequential benefits.
iv) That the respondents be directed to process the case of activation of the post of Jt DG (Resources) and moulding officer cadre of BS cadre as organized Group 'A' service namely Indian Defence Stores & Revenue Service (IDSRS)and get approval of the competent authority in a time-bound manner.5 O.A. No.935/2022
Item No.40
v) That the respondents be directed to process & finalise the DPC of promotion from SBSO to PBSO and DPC for promotion from BSO to SBSO as per the approved first Cadre Review of Barrack & Stores Cadre of MES in a time- bound manner.
vi) That it be declared that the Engineers Cadre cannot control the Administration duties like posting Transfer, promotions, policies etc as the Administrative officers are already posted in the office of respondent no. 3, hence the senior, administrative appointments of Engineer-in-Chief's Branch below DG (Pers) level be filled-up from administrative cadre or other non-technical cadre officers of MES.
vii) That the suitable directions be issued to respondent No.2 & 3 to get all the complaints of All India (MES) Barrack & Stores Cadre Association raised vide their letter dated 22 Mar 2016 & letter dated 15 Feb 2018 examined by an independent officer of the level of Joint Secretary & above within fixed time-frame so that suitable corrective measures be taken by the Ministry/ department in terms of COCS (Conduct) Rules.
vii) That this Hon'ble Tribunal may also pass any other order in favour of the applicant which it may deem fit in the peculiar facts and circumstances of the case.
ix) That cost of the application may also be awarded in favour of the applicant."
2. Learned counsel for the applicants briefly takes us through the history of the case and submits that the cadre of Barrack and Stores was created as a specialized cadre in the Military Engineering Service as far back as the year of 6 O.A. No.935/2022 Item No.40 independence. He submits that a disjointed cadre was in existence till recently when the long standing demand and grievance of the members of the cadre was taken up in right earnest by the appropriate authority in the Ministry of Defence and detailed meetings were held w.e.f. 24.06.2014. Positive recommendations for cadre review were made, which have been annexed with the OA as annexure A/3. The recommendations of the Board which reviewed the cadre, including several other issues were according to the following terms of reference :-
"(a) To assess the functional requirement of B/S cadre officers/ staff in all formations of MES in terms of increased work-load & Barrack Memorandum.
(b) To check the promotional aspects of the cadre.
(C) To find out the cause of stagnation in promotion process at various post of B/S Cadre, if any.
(d) Any policy/ guidelines of MoD/ DoP&T with regard to better promotional aspect of the Cadre.
(e) Consider increase in Cadre strength of B/S Cadre.
(f) Consider representations received from 'All India MMES Barrack & Store Cadre Association' regarding the functional requirement of B/S Cadre Officers/ staff.
(g) Consider the recommendations of 5" CPC regarding B/S Cadre.7 O.A. No.935/2022
Item No.40
(h) Consider the previous Cadre Review Proposal of B/S Cadre.
(i) Consider the requirement to make B/S Cadre an organized service."
3. The recommendations of the Board were considered at the highest level in the Ministry of Defence and after detailed consideration and consultation lasting for a period of more than three years, on 15.12.2017 a comprehensive order of cadre restructuring, which included creation/abolition of certain posts was issued with a direction that the recruitment rules of the said posts may also be revised in terms of the revised cadre structure. The said official order specifically refers to the concurrence of the Ministry of Finance, Department of Expenditure having been obtained in the said proposal.
4. Learned counsel submits that this order was subsequently given effect to with respect to the entire cadre review including creation of posts, except for the single post of the Joint Director General Resources, since this was a level 14 post and in accordance with the Rules of Business of the Government it required the approval of the Cabinet and such a requirement has been expressly recorded by the 8 O.A. No.935/2022 Item No.40 relevant competent authority. The procedure for obtaining the approval of the Cabinet mandates inter-ministerial consultation and hence the draft Cabinet memorandum was circulated for such an inter-ministerial consultation. At that stage the Department of Personnel and Training (DOP&T) raised an objection that the cadre review had taken place contrary to the guidelines issued by the DOP&T vide OM dated 14.12.2010. The DOP&T, in the said communication, inter-alia, mentions that proposals for formation of Group 'A' Service as was envisaged in the said cadre review required the proposal to be vetted by a committee headed by the Cabinet Secretary and in the instant case such an exercise never took place.
5. Learned counsel pointed out that all the previous communications issued by the Ministry of Defence pertaining to the cadre review had been endorsed to the DOP&T and hence it was within the knowledge of the DOP&T that cadre review had taken place, posts created and subsequently the proposals implemented, all with the concurrence of the Ministry of Finance. Hence, at this belated stage, DOP&T could not have raised this objection that too purely on procedural and technical issue without 9 O.A. No.935/2022 Item No.40 going into the merits of the exercise which had already taken place and which had the approval at the highest level of Ministry of Defence.
6. Learned counsel, concluding his arguments, submits that the issue referred to the DOPT was limited to vetting/concurring to the Cabinet note and its subject was creation of the post of Joint Director General Resources. However, the DOP&T exceeded its brief by reopening the entire gamut of issues involved in cadre review. Learned counsel for the applicant further draws attention to the DOP&T guidelines dated 14.12.2010 under the strength of which the respondents have justified the action of withdrawing the cadre review orders, pointing out that the said circular is applicable only with respect to cadre review of organized Group 'A' services and the very subject of the said OM is not applicable in the present case as the Barrack and Store Cadres of Military Engineering Services was neither an organized cadre nor an existing Group 'A' service. He further submits that the said circular also stipulates that the applicability of the provisions of the same shall only be with respect to cadres wherein the entry 10 O.A. No.935/2022 Item No.40 level is also a Group 'A' post; on this parameter too, the said circular is not relevant in the instant matter.
7. The learned counsel for the respondents strongly contests the averments made in the OA and the arguments put forth by the learned counsel for the applicants. He submits that once a procedural error was detected, especially on account of the fact that the said proposal had been finalized without adhering to rules of the business of the Government, it was incumbent upon the respondents to correct the same by way of withdrawing the approval they had already issued. He further submits that the DOP&T had given a categorical advice that since the entire cadre restructuring proposal amounted to creation of an organized Group 'A' service, the subject fell within the domain of the DOP&T and, hence, before finalizing the proposal and issuing orders to this effect, the Ministry of Defence should have adhered to the laid down provisions under the Rules, which called for detailed inter-ministerial consultation, consideration by the committee headed by the Cabinet Secretary and thereafter approval of the Council of Ministers.
11O.A. No.935/2022 Item No.40
8. Learned counsel draws attention to the specific averments he has made in his counter reply, pointing out that it was a serious but inadvertent error and in accordance with the advice of the DOP&T, the respondents did intend to re-visit and review entire issue so that the cadre review is taken to its logical conclusion after adhering to the provisions laid down in the rules, especially the rules requiring consultation and concurrence of the DOP&T and Department of Expenditure. He submits that the respondents could not undertake this exercise of re- visiting and reviewing the cadre review proposal on account of the pending litigation in the Tribunal and further assures that the respondents would be inclined to take up the matter in right earnest once this matter is disposed of by the Tribunal. He reiterates that while the respondents would like to review the matter and undertake the cadre review and cadre restructuring exercise afresh, they would like to ensure that this is done strictly in accordance with the rules and procedure laid down in the rules of business of the Government, especially, the guidelines of the DOP&T which is the nodal department for all personnel related matters and cadre review being one 12 O.A. No.935/2022 Item No.40 such matter, falls under the domain of the DOP&T. He further submits that if the present cadre restructuring proposal is implemented, it would drastically change the character of the Barrack and Store Services, which is primarily a Group B and C cadre by converting it into pre- dominantly a Group A service. In addition, he submits that because a large number of higher level posts are getting created, it would also have huge financial implications and would be a precedent for other cadres to raise similar demands.
9. We have given a long and patient hearing to the learned counsels for the parties. We have also meticulously gone through the voluminous documents on record.
10. The sequence of the events and basic facts of the case are not contested. The Barrack and Store personnel belong to a cadre, whether organized or otherwise in the Military Engineering Services, existing since long. Over a period of time, the personnel belonging to the Military and Barrack Services had been raising various demands and aspirations with respect to their career and promotional prospects and 13 O.A. No.935/2022 Item No.40 venting their grievances in appropriate fora and channels. The appropriate authority in the Ministry of Defence commenced an exercise in the year 2014, precisely on 24.06.2014, undertaking wide consultation and considering various suggestions and proposals for the cadre restructuring of Barrack and Store Services. The terms of reference of the Committee constituted for this purpose were detailed ones, which have already been listed in the preceding paragraphs of this order. The Board constituted for this purpose made its recommendations after deliberating on the issue for nearly three years and the said recommendations were considered in the Ministry of Defence at the highest level, in consultation with the Department of Expenditure, Ministry of Finance and this resulted in issuance of a Presidential order dated 15.12.2017, restructuring the Barrack and Store Cadre of Military Engineering Services. The said communication bears the subject "First Cadre Review of Barrack and Store Cadre of Military Engineer Services (MES"). At the outset, the said order states as under :-
"I am directed to convey the sanction of the President to the First cadre Review of Barrack and Store Cadre of Military Engineer Services (MES) as follows :-14 O.A. No.935/2022
Item No.40 Existing Structure Approved Structure Designation/ Existing Designation/ Revised Pay Scale Strength Pay Scale Strength Officers Grade Nil Nil Jt DG 01(+1) (Resource) PB-4 GP 10000 PBSO 02 PBSO 26(+24) PB-3 GP PB-4 GP 8700/-
7600/-
Nil Nil SBSO (NFSG) 100 |38 (+38) (30%
Pb-3 GP 7600 (+22)|of 127 SDP=
| 38
62
SBSO 78 SBSO
PB-3 GP PB-3 GP 6600/-
6600/-
BSO 291 BSO 295(+04)
PB-2 GP PB-3 GP 5400/-
4600/-
Reserve Nil Reserve 20(+20)
At JTS level
Subordinate
Grade
Supervisor 709 Supervisor 696 (-13)
Barrack & Barrack & Store
Store PB-2 GP 4600
PB-2 GP-
4200
Store 491 Senior Store & 715(+224)
keeper Revenue
Grade-I Assistant
PB-I GP PB-I GP 2800
2400
Store 798 Store & 939(+141)
Keeper Revenue
Grade-II Assistant PB-I
PB-I GP GP 1900
1900
Meter 36 Meter Reader 0(-36)
Reader (MCM)
(MCM) PB-1GP 2800/-
PB-1 GP
2800/-
Meter 218 Meter Reader 0(-218)
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O.A. No.935/2022
Item No.40
Reader (HSG)
(HSG) PB-1 GP 2400/-
PB-1 GP
2400/-
Meter 462 Meter Reader 0(-462)
Reader (SK) (SK)
PB-1 GP PB-1 GP 1900/-
1900/-
Total 3085 Total 2792(-293)
While outlining the proposal as approved in a tabular form and thereafter giving directions with respect to the modes of implementation, this order closes with the following lines:-
"5. This issues with the concurrence of MoF DoE ID No.2(65)/E-III Desk/2017 dated 01.12.2017 and MoD (Fin) UO No.510/Fin/W-III/17 dated 15.12.2017."
11. A bare reading of this order shows that it was issued after following the due procedure and provisions, as set out in the relevant rules. It had the sanction of the President and it had the concurrence of the Ministry of Finance. Further it gave a categorical direction that subsequent to this cadre review, Recruitment Rules should also be revised; and how they should be revised was also clearly directed. In the normal circumstances, this order would have since long been given effect to and the matter would 16 O.A. No.935/2022 Item No.40 have rested there. However, amongst the thousands of posts involved in this cadre review, there was one single post of Joint Director General (Resource) which was in the Grade Pay of Rs.10,000/- and hence required the approval of the Council of Ministers for its creation. Accordingly, as required by Rules of business, a draft Cabinet Note was prepared for consideration of the Cabinet and it was circulated for inter-ministerial consultation. At this stage, the DOP&T, instead of restricting its remit to giving its opinion on the proposal contained in the Cabinet Note, questioned the entire cadre review which had taken place and which had ordered to be implemented vide order dated 15.12.2017, which was a Presidential sanction issued after concurrence of Ministry of Finance.
12. We also cannot but fail to notice, as pointed out by the learned counsel for the applicants that this order of 15.12.2017 has also been endorsed to the DOP&T; whether it was seen at an appropriate level in DOP&T or not, is not for us to go into at this stage.
13. Now, the DOP&T may have had its reasons for raising objections on the entire cadre review order by pointing out 17 O.A. No.935/2022 Item No.40 that this was not in accordance with the guidelines determining the subject of cadre review and that consultation with the DOP&T was essential before issuance of the order, however, this is essentially an internal matter between the two Ministries of the Government. If some procedural error at all, had crept in, it was for the two Ministries to sit down and sort it out, especially, when an order in the name of President of India had already been issued. However, the DOP&T chose to direct that the said order be withdrawn and the Ministry of Defence immediately agreed rather than bringing out the implications of withdrawing the Presidential order, without following the norms governing such a decision, especially, when all possible approvals had been taken, that too, after an exercise which continued for more than three years. Moreover, after going through the DOP&T guidelines on the subject and the specific objections conveyed by the DOP&T in its advice to the Ministry of Defence, it has repeatedly been stated that the cadre review guidelines of 14.12.2010 should have been adhered to in this cadre review proposal.
14. We have gone through the said guidelines time and again and cannot help but agree with the contentions of 18 O.A. No.935/2022 Item No.40 the learned counsel for the applicants that the said guidelines by itself were not applicable on the present cadre review as what was being reviewed is not a Group 'A' service but a disjointed cadre of several personnel of different categories, and the exercise was basically aimed at organizing them in a way as to provide fair and reasonable opportunities for career progression. Moreover, if we take note of the contentions of the respondents in the counter reply that a grave error had been committed and some of the officers of the Ministry of Defence over reached their authority by issuing orders which did not have the approval of the competent authority, we do not find any averment to the effect that any action was taken against any officer/official of the concerned Ministry.
15. We believe that once DOP&T has put a spanner in the proposal which has already been finalized and ordered to be implemented, the respondents probably are trying to justify their action of keeping it in abeyance and by calling it a grave mistake. If at all there is a mistake, at best, it is a small procedural and technical error. Nowhere has the DOP&T commented upon the merits of the proposal. 19 O.A. No.935/2022 Item No.40
16. What was referred to DoPT was only a proposal through a draft Cabinet Note for creation of a post of Joint Director General (Resource); the cadre review/restructuring of Barrack and Stores Cadre was not the subject referred to the DoPT at that stage. Even if the DoPT came to the opinion that some procedural infirmity had crept in while finalizing the cadre review/cadre restructuring, there is nothing on record or in the communication of the DoPT that any such material was before the DoPT for reaching such a conclusion. Moreover, since it was a Presidential sanction issued after concurrence of the Department of Expenditure, Ministry of Finance, whether the DOP&T by itself was competent to advise/order the withdrawal of such a sanction has also not been explained.
17. Accordingly, we have no hesitation in setting aside the impugned communication dated 19.09.2018, vide which it has been directed that the cadre restructuring/review, specifically the pay and 20 O.A. No.935/2022 Item No.40 allowance of Barrack and Store cadre be kept in abeyance and also setting aside all associated communications to this effect. While allowing the Original Application we further direct the respondents to give effect to, in letter and spirit, the sanction/ approval of the first cadre review of Barrack and Stores cadre issued vide letter dated 15.12.2017 bearing No. 76002/1st CR/ BS Cadre/ CSCC/23(1)/2017/D(W-II). The said directions shall be implemented within a period of twelve weeks from the date of receipt of a certified copy of this order.
18. The OA stands allowed against the background of the aforesaid directions.
There shall be no order as to costs.
( Tarun Shridhar ) ( R N Singh )
Member (A) Member (J)
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