Central Administrative Tribunal - Jabalpur
Shekhar Kumar Gajbhiye vs M/O Defence on 2 January, 2025
1 OA 200/806/2019 & other connected OAs
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Applications Nos.200/806/2019, 200/125/2020 &
200/294/2022
Jabalpur, this Thursday, the 02nd day of January, 2025
HON'BLE MR. JUSTICE AKHIL KUMAR SRIVASTAVA, JUDICIAL MEMBER
HON'BLE MRS. MALLIKA ARYA, ADMINISTRATIVE MEMBER
1. Shekhar Kumar Gajbhiye, (Working as JWM (SG), Ordnance Factory
Khamaria, S/o Late Shri M. Gajbhiye, DOB : 13.09.1971, Resident :
Address : H.No.1299, Sai Dham Colony, Ward No.70, Lala Lajpat Rai
Ward, Manegaon, P.O. Khamaria, Jabalpur (M.P.) - 482005.
2. Durbadal Patel, (Working as JWM (SG), Ordnance Factory Khamaria,
S/o Late Shri Sunadhar Patel, DOB : 04.06.1962, Resident : Quarter
No.134/W, Near Gurudwara, Westland Khamaria, Jabalpur (M.P.) -
482005.
3. Chhote Lal Kol, (Working as JWM (SG), Ordnance Factory Khamaria,
S/o Late Bhulai Ram Kol, DOB : 18.06.1961, Resident : Quarter
No.183/W, Midland, Milan Mandir Marg, Westland, Khamaria, Jabalpur
(M.P.) - 482005.
4. Deepak Pandey, (Working as JWM (SG), Gun Carriage Factory, S/o Shri
Janki Prasad, D.O.B : 02.07.1975, Resident : Type IV-117, Abhyuday
Nagar-2, Near K.V. School No.2, G.C.F. Estate, Jabalpur (MP) - 482011.
5. Vinay Shrivastava, (Working as JWM (SG), Gun Carriage Factory, S/o
Late Shri P.N. Shrivastava, D.O.B : 04.07.1982, Resident : Qr. No.63/2,
Chittarnajan Marg, G.C.F. Estate, Jabalpur (MP) - 482011.
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6. Kunal Shukla, Working as JWM(SG), Gun Carriage Factory, S/o Late
Shri Ramesh Shukla, D.O.B.:11.04.1981, Resident : Qr. No.118/4,
Abhyuday Nagar-2, Near K.V. School No.2, G.C.F. Estate, Jabalpur (MP) -
482011.
7. Yugendar Macharla, Working as JWM(SG), Gun Carriage Factory, S/o
Shri Kommalu, D.O.B. : 12.05.1981, Qr. No.102/1, Type IV, New Colony,
G.C.F. Estate, Jabalpur (MP) - 482011.
8. Chandra Shekhar Sonker, Working as JWM(SG), Gun Carriage Factory,
S/o Late Sita Ram Sonker, D.O.B. 29.11.196, Q. 886, Badi Omti, Jabalpur
(MP) - 482001.
- Applicants in OA 200/806/2019
1. Chinta Mani Jha, (Retired as JWM(SG) From Ordnance Factory
Khamaria, Jabalpur (MP), S/o Late Shri Harshit Jha, DOB : 26.02.1959,
Resident : Address : C/o Shri Shekhar Kumar Gajbhiye, H.No.1299, Sai
Dham Colony, Ward No.70, Lala Lajpat Rai Ward, Manegaon, P.O.
Khamaria, Jabalpur (M.P.) - 482005.
2. Ashok Kumar Agarawal, (Working as JWM(SG) in Vehicle Factory,
Jabalpur (MP), S/o Late Shri Mithlesh Kumar Agarawal, DOB :
14.09.1980, Resident : Qtr. No.453, Type IV, Sector -II, Vehicle Factory,
Estate Jabalpur (MP) - 482009.
3. Lok Bahadur, (Working as JWM(SG) in Vehicle Factory, Jabalpur (MP),
S/o Late Shri D.C. Vishwakarma, DOB : 02.01.1962, Resident : Plot No.46,
Shivaji Nagar, Madhotal, Jabalpur (MP).
4. Ram Prasad Maravi (Working as JWM(SG) in Vehicle Factory, Jabalpur
(MP), S/o Late Shri Teji Singh Maravi, D.O.B. : 04.09.1960, Resident : Qr.
No.402, Type-IV, Sector-I, V.F.J. Estate, Jabalpur (MP) - 482009.
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5. Chanchal Kumar Dubey, (Working as JWM(SG) in Ordnance Factory
Khamaria, Jabalpur (MP), S/o Late R.K. Dubey, D.O.B. : 25.09.1962,
Resident : H.No.173, Chandan Colony, Ranjhi, Jabalpur (MP) - 482005.
6. Jagjiwan Ram Bhagat, (Working as JWM(SG) in Ordnance Factory
Khamaria, Jabalpur (MP), S/o Shri Tembu Ram Bhagat, D.O.B. :
05.06.1970, Resident : Flat No.885/1, Pooja Apartment, Behind Home
Guard Headquarter, South Civil Lines, Jabalpur (MP) - 482001.
- Applicants in OA 200/125/2020
1. P. Vimal Kumar (Ex. JWM/OFK/846855), S/o Late Shri K.P.
Prabhakaran, D.O.B. 15.11.1957, Resident : 314, Ashit Apartment, South
Civil Lines, Jabalpur (MP) - 482001.
2. Sunil Kumar Jain, (Ex. JWM/OFK/846901), S/o Late Shri D.C. Jain,
D.O.B. 11.03.1960, Resident of : 828, Shahi Naka, Garha, Jabalpur (MP) -
482003.
3. Ashok Kumar Duryam (Ex. JWM/OFK/847140), S/o Late Shurahn Lal
Duryam, D.O.B. 04.10.1959, Reisdent of : H.No.210/1, Near Gullauya
Chowk, Garha, Jabalpur (MP) - 482003.
4. Umesh Chandra Singh (JWM/OFK/846964), S/o Late Shri Kailash Nath
Singh, D.O.G. 14.05.1958, Resident of : H.No.894/2, Plot No.136, Near
Mother Dairy, Shakti Nagar, Gupteshwar, Jabalpur (MP) 482001.
5. Surjeet Kumar Kapila, (Ex. JWM/OFK/846852), S/o Shri A.L. Kapila,
D.O.B. 12.10.1957, Resident : H.No.10, Saket Colony, Near Tighara,
Khamaria, Jabalpur (MP) - 482005 - Applicants in OA 200/294/2022
(By Advocate : Shri Vijay Tripathi)
Versus
1. The Union of India through its Secretary Defence (Production), South
Block, New Delhi - 110011.
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2. The Chairman & Director General, Ordnance Factory Board, 10-A,
Shaheed Khudiram Bose Marg, Kolkata (W.B.) - 700001.
- Common respondents
(By Advocate - Shri Surendra Pratap Singh in all five OAs)
(Date of reserving order : 13.12.2024)
COMMON ORDER
By Akhil Kumar Srivastava, JM.-
The applicants are aggrieved that they have not been granted promotion to the post of Junior Works Manager (Selection Grade) from the vacancy year 2016. Since the issue involved in all the three Original Applications is common, they are being decided by way of a common order. For the purpose of this order, the facts and the documents pleaded in OA No.200/806/2019 have been referred to for brevity.
2. Brief facts of the case are that the employees of the Indian Ordnance Factories and are posted (some of them retired) as Junior Works Manager (SG) in the different units of the Ordnance Factory. As per the recommendations of the 7th CPC, the post of JWM (SG) has been created w.e.f.01.01.2016 as notified in General Statutory Rules (GSR) 592(E) dated 15.06.2017 (Annexure A-3). In pursuance to the provisions contained in the said GSR, the Ordnance Factory Board, Kolkata vide order dated Page 4 of 14 ANUPAM ANUPAMMISHRA MISHRA 2025.01.03 11:14:31+05'30' 5 OA 200/806/2019 & other connected OAs 13.09.2018 (Annexure A-1) has promoted the applicants from JWM (Group 'B' Gazetted) in Level -7 of the Pay Matrix to the post of JWM (SG) in Level -8 w.e.f.13.09.2018.
2.1 In pursuance to the CCS (RP) Rules, 2016, the Ministry of Defence has published CDS (RP) Rules, 2016, as S.R.O. No.11(E) dated 09.08.2016 for implementation of the recommendations of the 7th CPC. Thereafter, in pursuance to the CCS (RP) (Amendment) Rules, 2017, the MoD has notified the CDS (RP) (Amendment) Rules, 2017 in S.R.O. No.20(E) dated 10.07.2017 and inserted five posts in the original list of upgraded posts of MoD as per recommendations of the 7th CPC. The rules made by the Government of India in the GSR 721(E) dated 25.07.2016 and GSR No.592(E) dated 15.06.2017 have been accepted by the MoD and, therefore, the rules are same and there is no change in the provisions.
2.2 Being aggrieved by the decision of respondent No.2 by effecting promotion to the post of JWM (SG) w.e.f.13.09.2018 instead of 01.01.2016, the applicants have submitted representations (Annexure A-2 collectively) and requested to consider their case for grant of promotion to the post of Page 5 of 14 ANUPAM ANUPAMMISHRA MISHRA 2025.01.03 11:14:31+05'30' 6 OA 200/806/2019 & other connected OAs JWM (SG) w.e.f.01.01.2016. However, their representations have not been decided by the respondents.
2.3 It has been averred by the applicants that no specific Recruitment Rules were existed for promotion to the post of JWM (SG) on the day of creation/upgradation of the post i.e. 01.01.2016 and the promotions have been granted in pursuance to the GSR 592 in the absence of Recruitment Rules. In the promotion order dated 13.09.2018, the vacancy year is shown as '2018'. However, the Rules made in GSR 592(E) clearly states that it shall be effected from 01.01.2016. Thus, the creation of the post of the JWM (SG) inter alia shall be effected from 01.01.2016.
3. In their reply, the respondents have stated that being a newly crated post, the relevant SROs/Recruitment Rules for the said post of JWM (SG) stipulating all statutory provisions of method of recruitment is yet to be framed. However, based on the method of recruitment prescribed in the subject Govt. notification, process was initiated for filling up 70 percent posts in the level of JWM (SG) through promotion and after duly holding DPC, promotion orders from JWM to JWM (SG) were issued w.e.f.13.09.2018. As per rules, promotion can only be effected from a Page 6 of 14 ANUPAM ANUPAMMISHRA MISHRA 2025.01.03 11:14:31+05'30' 7 OA 200/806/2019 & other connected OAs prospective date only and, therefore, the applicants cannot be given retrospective promotion form a date without holding DPC.
4. We have heard the learned counsel for the parties and perused the pleadings and the documents available on record.
5. Learned counsel for the applicant submits that the same issue was also involved in Original Application No.200/680/2019 filed by Dr. Narmada Prasad Dwivedi before this Tribunal and this Tribunal vide order dated 17.12.2021 has directed the respondents to grant the proforma promotion to the applicant to the post of JWM (SG) from the date when the post in higher grade of Rs.4800/- created i.e. w.e.f.01.01.2016 to 11.09.2017 (the date on which the applicant absorbed in CAT, Jabalpur Bench) with all consequential benefits including seniority and other service benefits.
6. Learned counsel for the respondents averred that promotion cannot be made effective from retrospective date.
7. We find that issue involved in this Original Application is no longer res integra as the same has already been decided by this Tribunal in the case of Dr. Narmada Prasad Dwivedi (supra). The operative paragraph of the order passed in the aforesaid case, reads as under:
Page 7 of 14ANUPAM ANUPAMMISHRA MISHRA 2025.01.03 11:14:31+05'30'
8 OA 200/806/2019 & other connected OAs "6. The question for consideration before us in this case is that where promotion is to be granted in same post from JWM with Grade Pay 4600/- to JWM Grade Pay 4800/-, without involving advancement to a higher post, without involving any process of selection for conferment of the benefit of higher pay-scale. Whether it is treated as Promotion or Upgradation?.
7. Learned Counsel for the applicant has relied on the judgment of Hon'ble Supreme Court in the matters of BSNL Vs. R. S. Velusamy and Ors., (2011) 9 SCC 510, which reads as under:
"29. On a careful analysis of the principles relating to promotion and up-gradation in the light of the aforesaid decisions, the following principles emerge:
(i) Promotion is an advancement in rank or grade or both and is a step towards advancement to a higher position, grade or honour and dignity. Though in the traditional sense promotion refers to advancement to a higher post, in its wider sense, promotion may include an advancement to a higher pay scale without moving to a different post. But the mere fact that both--that is, advancement to a higher position and advancement to a higher pay scale--are described by the common term "promotion", does not mean that they are the same. The two types of promotion are distinct and have different connotations and consequences.
(ii) Upgradation merely confers a financial benefit by raising the scale of pay of the post without there being movement from a lower position to a higher position. In an upgradation, the candidate continues to hold the same post without any change in the duties and responsibilities but merely gets a higher pay scale.
(iii) Therefore, when there is an advancement to a higher pay scale without change of post, it may be referred to as upgradation or promotion to a higher pay scale. But there is still difference between the two. Where the advancement to a higher pay scale without change of post is available to everyone who satisfies the eligibility conditions, without undergoing any process of selection, it will be upgradation. But if the advancement to a higher pay scale without change of post is as a result of some process which has elements of selection, then it will be a promotion to a higher pay scale. In other words, upgradation by application of a process of selection, as contrasted from an upgradation simpliciter can be said to be a Page 8 of 14 ANUPAM ANUPAMMISHRA MISHRA 2025.01.03 11:14:31+05'30' 9 OA 200/806/2019 & other connected OAs promotion in its wider sense, that is, advancement to a higher pay scale.
(iv) Generally, upgradation relates to and applies to all positions in a category, who have completed a minimum period of service. Upgradation can also be restricted to a percentage of posts in a cadre with reference to seniority (instead of being made available to all employees in the category) and it will still be an upgradation simpliciter. But if there is a process of selection or consideration of comparative merit or suitability for granting the upgradation or benefit of advancement to a higher pay scale, it will be a promotion. A mere screening to eliminate such employees whose service records may contain adverse entries or who might have suffered punishment, may not amount to a process of selection leading to promotion and the elimination may still be a part of the process of upgradation simpliciter. Where the upgradation involves a process of selection criteria similar to those applicable to promotion, then it will, in effect, be a promotion, though termed as upgradation.
(v) Where the process is an upgradation simpliciter, there is no need to apply the rules of reservation. But where the upgradation involves a selection process and is therefore a promotion, the rules of reservation will apply.
(vi) Where there is a restructuring of some cadres resulting in creation of additional posts and filling of those vacancies by those who satisfy the conditions of eligibility which includes a minimum period of service, will attract the rules of reservation. On the other hand, where the restructuring of posts does not involve creation of additional posts but merely results in some of the existing posts being placed in a higher grade to provide relief against stagnation, the said process does not invite reservation.
30. In this case, the BCR scheme did not involve creation of additional posts but merely restructured the existing posts as a result of which 10% of the posts in Grade III were placed in a higher grade (Grade IV) to give relief against stagnation. This is evident from the terms of the BCR scheme and the clarification contained in the letter dated 7.5.1993 that no posts were sanctioned, as far as 10% BCR was concerned.
31. In this case, the BCR scheme dated 16.10.1990 provided that the persons who had completed 26 years of service would be screened by a Page 9 of 14 ANUPAM ANUPAMMISHRA MISHRA 2025.01.03 11:14:31+05'30' 10 OA 200/806/2019 & other connected OAs duly constituted Review Committee to assess the performance and suitability for advancement. The screening was for the limited purpose of finding out whether the service record of the employee contained any adverse entries or whether the employee had suffered punishment. The screening process did not involve consideration of comparative merit nor involve any selection. The 10% posts were upgraded strictly by seniority subject to screening. This is evident from the terms of BCR scheme and the Circular dated 13.12.1995 which provided that the promotions to Grade IV were to be based on seniority in the basic grade from among the officers in Grade III, subject to fitness determined as per OTBP manner, that is screening to ascertain whether there are any adverse comments or punishment against the employee concerned.
32. To sum up, the BCR scheme was an upgradation scheme to give relief against stagnation. It did not involve creation of any new posts. It did not involve advancement to a higher post. It did not involve any process of selection for conferment of the benefit of higher pay-scale. The upgradation was given to the senior most 10% of BCR scale employees in Grade III strictly as per seniority. BCR scheme as per circular dated 16.10.1990 was thus a scheme for upgradation simplicitor without involving any creation of additional posts or any process of selection for extending the benefit. Such a scheme of upgradation did not invite the rules of reservation.
32. We accordingly allow these appeals, set aside the orders of the High Court and the Tribunal and dismiss the Original Applications challenging the order of the telecom department dated 8.9.1999."
8. In a similar case of Ashok Kumar Shrivastava and Ors. v. UOI and Ors. (T.A. No. 139/86), passed by this Tribunal on 24.03.1987, taking into consideration facts and circumstances of the case the Hon'ble CAT Jabalpur was held that the upgradation to DMOs did not involve either a selection or a promotion, that it is simply nomination or placing of some senior to the upgraded posts with better pay scale on the basis of seniority subject to suitability. In para 18 the Tribunal has stated as hereunder:
"18. Consequently we are of the view that in the present case the upgradation of ADMOs to DMOs involves neither a selection nor a promotion. It is simply nomination or placing of some seniors to the upgraded posts with better pay scale, on the basis of seniority subject to suitability. In the circumstances of this case placing of these few Page 10 of 14 ANUPAM ANUPAMMISHRA MISHRA 2025.01.03 11:14:31+05'30' 11 OA 200/806/2019 & other connected OAs seniors to their upgraded posts with better pay scale does not amount to any fresh appointment by promotion and, moreover, these persons, so nominated to the higher grade, do not leave behind vacant their earlier posts."
9. On perusal of the above, we find that in the instant case as per GSR-592, dated 15/06/2017 (Annexure-A/3) 70% of posts, earmarked to be placed in higher grade of Rs.4800/-, are to be filled up by promotions of existing JWMs holding the grade pay of Rs.4600/-. As per GSR, the promotion is to be effected in the same post i.e. from JWM (Grade pay of Rs. 4600/-) to JWM (Grade pay 4800/-). Obviously, the candidate continues to hold the same post without any change in the duties and responsibilities but merely gets a higher pay scale. It did not involve creation of any new post. It did not involve advancement to a higher post. It did not involve any process of selection for conferment of the benefit of higher pay-scale. Thus, up- gradation in higher grade pay of Rs.4800/- by way of promotion against these 70% upgraded posts is to be given strictly as per order of seniority. Despite that as per GSR-592(E) "Method outlined in the GSR is promotion" this scheme is thus a scheme for up-gradation as per recommendations of 7th CPC, without involving any creation of additional posts or any process of selection for extending the benefit of higher grade pay.
10. Further, the Learned counsel for applicant emphasised to Para 2 of DoPT O.M. dated 04.02.1992 which stipulates that:
"2. The following criteria may be adopted in assessing the suitability of the incumbents of the post/deciding the date of appointment to upgrade post:
1. "Where the up-gradation involves only a higher replacement scale without any additional responsibility/ higher qualification/higher eligibility service, the suitability of the incumbents need not be assessed and they may be appointed to the post with the higher replacement scale with effect from the date notified by the Government, giving effect to the recommendations of the Pay Commission or similar bodies etc.
11. We find that specific plea, regarding applicability of provisions of DoPT OM dated 04.02.1992, raised repeatedly by the applicant on that behalf in the body of the OA which has never refuted in the reply filed on behalf of the respondents. However, on perusal of GSR-592(E) it is very clear that no additional responsibility/ higher qualification/ higher eligibility service is Page 11 of 14 ANUPAM ANUPAMMISHRA MISHRA 2025.01.03 11:14:31+05'30' 12 OA 200/806/2019 & other connected OAs laid down in the GSR-592(E) for effecting promotions against 70% of upgraded post and therefore in this case the above guidelines ought to have been adhered to by the respondents.
12. Further, on perusal of records we find that respondents considered the vacancy year as "2018", whereas they considered APAR Grading for the period from 2010-11 to 2014-15 which is required to be considered for promotions in case of vacancy for year 2016. This contradiction shows inconsistency in their action.
13. It is an admitted fact that the applicant was holding the post of JWM(NT/OTS) in O.F. Organization i.e. OFK w.e.f. 30.06.2009 to 10.09.2017 till permanent absorption in the post of Section Officer/Court Officer in CAT Jabalpur.
14. Further, the Learned counsel on behalf of respondents never disputed on specific plea raised on behalf of applicant that his name has been shown at S.No.156 in the seniority list as on 01.01.2016 and as on 01.01.2016 total 177 vacancies for JWM (SG) were assessed for un-reserved category. Accordingly, he is well within the normal zone of consideration for getting benefit of higher pay if it is granted on or before his absorption i.e. 10/09/2017.
15. Consequently, we are of the view that in the present case as per GSR- 592(E), the promotion against 70% posts upgraded in higher grade, is to be effected in the same post i.e from JWM (Grade pay of Rs. 4600/-) to JWM (Higher Grade pay of Rs. 4800/-) strictly on the basis of seniority as the candidate continues to hold the same post without any change in the duties and responsibilities but merely gets higher pay scale. It did not involve creation of any new post. It did not involve advancement to a higher post. It did not involve any process of selection for conferment of the benefit of higher pay-scale. Despite Method outlined in the GSR is promotion; this scheme is thus a scheme for upgradation simplicitor, without involving any creation of additional posts or any process of selection for extending the benefit. Thus, we find that decision of the Respondent No.2, by rejecting the claim of applicant is inconsonance with the statutory orders and also is violative of Article 14 and 16 of the constitution of India.
16. We also find that in terms of Para 2(1) of DoPT OM 04.02.1992, in the instant case, the suitability of the Applicant need not be assessed and appointment through promotion be made to the applicant in higher replacement scale of Rs.4800/- (Level-8) with effect from the date notified by Page 12 of 14 ANUPAM ANUPAMMISHRA MISHRA 2025.01.03 11:14:31+05'30' 13 OA 200/806/2019 & other connected OAs the Government, giving effect to the recommendations of the 7th CPC i.e. 01.01.2016.
17. Since entire exercise undertaken by the respondents is contrary to the GSR-592(E), dated 15/06/2017 and GSR-721, dated 25.07.2016 as well as DoPT OM dated 04.02.1992; it cannot be sustained in law.
18. Accordingly, the present Original Application is allowed. The impugned letter dated 02/07/2019 (Annexure-A/7) is quashed and set aside.
19. Consequently, the respondents are directed to grant the proforma promotion to the applicant to the post of JWM (SG)from the date when the post in higher grade of Rs. 4800/- created i.e. w.e.f. 01.01.2016 to 11.09.2017 ( the date on which the applicant absorbed in CAT, Jabalpur Bench) with all consequential benefits including seniority and other service benefits. 20. This exercise should be completed within a period of 60 days from the date of receipt of a certified copy of this order. However, the applicant shall not be entitled for any interest on payment of arrears. No costs."
8. On bare reading of the order passed in the case of Dr. Narmada Prasad Dwivedi (supra), it would be evident that a similar prayer was made therein to antedate the promotion from the date when the post in higher grade JWM (SG) was created w.e.f.01.01.2016 and this was allowed by this Tribunal. Learned counsel for the applicants has pointed out that he has filed an MA No.200/180/2023 for taking documents on record, in which, he has filed an Office Order dated 19.09.2022 vide which the respondents have implemented the order passed by this Tribunal in the case of Dr. Narmada Prasad Dwivedi (supra).
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9. Thus, considering the overall facts and circumstances of the present cases coupled with our order passed in the case of Dr. Narmada Prasad Dwivedi (supra), we have no hesitation to hold that the present applicants are also entitled for similar relief. Accordingly, we allow all these Original Applications in terms of our order passed in the case of Dr. Narmada Prasad Dwivedi (supra). Let this order be implemented within a period of 60 days from the date of receipt of a copy of this order. No order as to costs.
(Mallika Arya) (Akhil Kumar Srivastava)
Administrative Member Judicial Member
am/-
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