Central Administrative Tribunal - Ernakulam
K.J. George vs Union Of India Represented By Secretary on 16 February, 2010
1
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A. NO. 764 OF 2008
Tuesday, this the 16th day of February, 2010.
CORAM:
HON'BLE Mr.GEORGE PARACKEN, JUDICIAL MEMBER
HON'BLE Mr.K.GEORGE JOSEPH, ADMINISTRATIVE MEMBER
K.J. George,
Engine Fitter (SK),
Naval Ship Repair Yard,
Naval Base, Kochi - 4,
Residing at Keettuparambil House,
Komarath Lane, Azad Road, Kaloor. ... Applicant
(By Advocate Mr. T.A. Rajan)
versus
1. Union of India represented by Secretary,
Government of India, Ministry of Defence,
New Delhi.
2. The Flag Officer Commanding-in-Chief,
Headquarters, Southern Naval Command,
Naval Base, Kochi - 4.
3. The Chief Staff Officer (P&A),
Headquarters, Southern Naval Command,
Naval Base, Kochi - 4.
4. The Commodore Superintendent,
Naval Ship Repair Yard,
Naval Base, Kochi - 4. ... Respondents
(By Advocate Mr. Sunil Jacob Jose, SCGSC)
The application having been heard on 16.02.2010, the Tribunal on
the same day delivered the following:
O R D E R
HON'BLE Mr. GEORGE PARACKEN, JUDICIAL MEMBER The applicant's prayer in this O.A. is to declare that he is entitled to get appointment to the post of Engine Fitter (SK) w.e.f. 21.08.2001. 2
2. The brief back ground of the case for the purpose of adjudication is as under :-
2.1. The applicant had undergone the apprenticeship training in Naval Ship Repair Yard, Naval Base, Kochi under the Apprenticeship Act of 1961 from 01.09.1988 to 31.08.1989 in the trade of Fitter and passed the prescribed trade test conducted by the National Council for Vocational Training.
Thereafter, he has been awaiting for his turn for appointment as a Fitter, in terms of the Recruitment Rules issued vide S.R.O. 338 (SL3) dated 19.11.1979 as amended by S.R.Os 131/84, 25/87, and 200/89 according to which the Ex-Naval Apprentices were to be given priority in the regular appointment. The said Recruitment Rules were amended by Annexure A2 Recruitment Rule No. S.R.O. 150 dated 01.06.2000 according to which 60% of the posts are to be filled up by absorption of the Ex-Naval Apprentices and the remaining 40% by promotion of semi skilled workers with four years regular service in the grade failing which by direct recruitment. After the notification of the aforesaid amended Recruitment Rules, the first vacancy in the trade of Fitter has arisen in the year 2001 and against it, one Shri. C.L. Sebastian was appointed vide Annexure A3 appointment letter No.CS2764/30 dated 24.01.2001. The next vacancy was filled up by promotion of the senior most semi-skilled person, namely, Shri. V.A. George vide Annexure A4 order No.CS2765/34 dated 24.01.2001. As the next Ex-Naval Apprentice expressed his unwillingness for appointment, the applicant was legitimately expecting his appointment against the next available vacancy. However, without considering him, the respondents, vide Annexure A5 letter No.CS2765/34 dated 21.08.2001, promoted Shri. A.K. Madhusoodhanan, a semi skilled worker to the post of Bench Fitter (SK).
3 2.2. The applicant challenged the appointment of Shri. Madhusoodhanan before this Tribunal in O.A. No.828/2001 seeking a declaration that his promotion to the post of Bench Fitter (SK) in preference to him was illegal. He has also sought for a direction to the respondents to consider him for appointment to the aforesaid post from the date of promotion of Shri. Madhusoodhanan with all consequential benefits. The Tribunal allowed the aforesaid O.A. holding that the respondents have erred in as much as the 60:40 ratio was not correctly followed and the vacancy ought to have been gone in favour of the applicant herein. Accordingly, the respondents were directed to consider the applicant for appointment to the post of Fitter (SK) against which Shri. Madhusoodhanan was appointed since it was an admitted fact that he was the seniormost Ex-Naval Apprentice waiting to be absorbed. The observation of the Tribunal while passing the aforesaid order was under :-
"On a consideration of the relevant records and the contentions of the learned counsel on either side, we find that the applicant has a case to be considered for the vacancy that was sought to be filled by A-11 order whereby the 4th respondent, the departmental candidate was considered. It is borne out from the records that there have been three vacancies of Fitter Trade to be considered after the coming into effect of A-4 Recruitment Rules. It is not disputed that A-4 came into effect on 29.07.2000. Out of the said three posts, we notice, the first one was given to the Senior-most Ex-Naval Apprentice, Shri. C.L. Sebastian by A-7 order.
Thereafter, a vacancy arose in the trade of Engine Fitter which was understandably allotted to a departmental candidate, Shri. V.A. George, by A-8 order. These orders cannot be faulted. However, the 3rd vacancy occurring in the trade of Bench Fitter (Skilled) is the one which is under dispute as it was given to a departmental candidate i.e. the 4th respondent. In this respect, we are afraid, the respondents have erred in as much as the 60:40 ratio is not correctly followed. As a matter of fact, that 4 vacancy ought to have gone in favour of one Shri. P.C. Varghese, Ex-Naval Apprentice who, however, had relinquished his claim well in time. This is an admitted fact. That being so, that post ought to have been given to the next Ex-
Naval Apprentice in the waiting list who is none other than the applicant. Thus, we are convinced that the A-11 order is erroneous in as much as it has failed to consider the applicant's legitimate right and proceeded to give the appointment incorrectly to the 4th respondent. The applicant's claim therefore has to be upheld and this O.A. has to be allowed."
2.3. The respondents filed W.P.(C). No.15323 of 2004 before Hon'ble High Court challenging the aforesaid order of this Tribunal. The High Court, after considering entire facts and circumstances of the case, directed the respondents by an interim order dated 15.11.2004 that the applicant shall be accommodated in the post of Engine Fitter which arose in 17.09.2002 provisionally and subject to the final approval of the Finance Ministry. The said order of the High Court is as under :-
"An affidavit has been filed on behalf of the petitioners. It is stated in paragraph 3 of the affidavit that a post in the Engine Fitter trade had become vacant with effect from 17th September 2002, but deficiency in the Engine Fitter trade cannot be filled up at the 2nd petitioner' level. Further, it is stated that as per the Government of India, Ministry of Finance OM No.7(3)/E-Coord/99 dated 23rd October, 2000 prior approval of the Government is mandatory for filling up of a given vacancy. Considering the entire facts and circumstances of the case, we are of the view that the first respondent be accommodated in the post of Engine Fitter provisionally and subject to the final approval to be obtained from the Finance Ministry."5
2.4. Based on the aforesaid interim order, the applicant was appointed as Engine Fitter (SK) on 29.12.2004. Thereafter, the respondents have not pursued the aforesaid writ petition filed by them before the Hon'ble High Court and it was finally dismissed for non prosecution by judgment dated 05.09.2007. As a result, both the applicant as well as Shri. Madhusoodhanan were just continuing in the cadre of Fitter from the respective dates of their appointment. 2.5. The applicant has, therefore, made the Annexure A9 representation dated 01.02.2008 indicating the aforesaid facts and requesting the respondents to antedate his date of appointment to the post of Engine Fitter (SK) to 21.08.2001, the date of promotion of Shri. A.K. Madhusoodhanan to the post of Fitter and to grant him all consequential benefits. However, the Southern Naval Command Headquarter rejected the aforesaid representation of the applicant stating that he has already fully accepted his appointment as Engine Fitter (SK) w.e.f. 29.12.2004 as communicated to the applicant by the 4th respondent vide Annexure A10 letter No. PA/03/2670/01 dated 26.08.2008 which reads as under :-
"In compliance with the direction of the Hon'ble High Court of Kerala vide judgment dated 15 Nov 2005 in WP(C) No.15323/2004 Shri. K.J. George was appointed as Engine Fitter (SK) with effect from 29 Dec 2004. In this regard, it is stated that while hearing the Writ Petition, the findings of Hon'ble CAT, Ernakulam Bench in order dated 15 Dec 2003 in OA 828/2001 and the contentions raised in the WP(C) filed by the Department against the Hon'ble CAT order were discussed in detail and thereafter the Hon'ble High Court directed that "considering the entire facts and circumstances of the case we are of the view that the first respondent be accommodated in the post of Engine Fitter provisionally and subject to the final approval to be obtained from the Finance Ministry". It is further stated that prior to arrival of such decision, the Hon'ble High Court had ascertained the vacancy position and 6 department's inability to fill up the same in the absence of ARP clearance through the affidavit filed by the department as directed vide interim order 08 Nov 2004.
It is further stated that the appointment as Engine Fitter (SK) with effect from 29 Dec 2004 was fully accepted by you and compliance report had been submitted before the Hon'ble CAT as per their Order dated 15 Dec 2003. Accordingly, the Contempt Petition (C) 62/2004 in OA 828/01 filed by you was closed by the Hon'ble Tribunal."
3. The respondents in their reply have submitted that when vacancies arise in the trades of Engine Fitter, Bench Fitter and Millwright Fitter, Ex-Apprentices in the trade of Fitter were generally considered for appointment. However, the position was changed after the Recruitment Rules were issued vide SRO 150/2000 (Annexure A2) which stipulates that 60% of the post is to be filled in by absorption of Ex-Apprentices and 40% by promotion of semi skilled workers. Accordingly, out of 07 posts of Bench Fitter (SK), 04 posts (60%) are earmarked for Ex-Apprentices and 03 posts for Departmental Promotion. Separate rosters are also maintained for these three trades and the posts are filled as per the prescribed ratio in the Recruitment Rules. Though the applicant was the senior most among the Apprentices in the waiting list, the vacancy of Bench Fitter (SK) which has arisen in the year 2001 has to be filled up by Departmental Promotion as 04 posts (60%) have already been filled up by the Ex-Apprentices. According to them, appointments in the ratio 60:40 were made based on the authorized strength of each trade and not on the basis of the number of vacancies being filled in. Since there were only 04 posts earmarked for Ex-Naval Apprentices out of the total of 07 posts and all those 04 posts were already filled up, the applicant was not appointed against the vacancy which has arisen in the year 2001, it was filled 7 up by promotion of Shri. A.K. Madhusoodanan. They have also submitted that the promotion of the departmental candidate was strictly in accordance with the Annexure A2 Recruitment Rules (SRO 150/2000). They have further submitted that the applicant was given promotion in the available vacancy in the trade of Engine Fitter (SK) w.e.f. 29.12.2004 as directed by the Hon'ble High Court of Kerala and the appointment was accepted by him. Therefore the applicant's claim for antedating his appointment to that of the date on which Shri. Madhusoodhanan was promoted in another trade and the vacancy of which was earmarked for promotion, is not only sustainable but also untenable in law.
4. We have heard learned counsel for the applicant and respondents. The entitlement of the applicant to be considered for appointment as Fitter against the vacancy which has arisen w.e.f. 21.08.2001 and the wrong promotion of Shri. A.K. Madhusoodhanan in his place have already been considered in detail by this Tribunal in its order dated 15.12.2003 in O.A. No. 828/2001 (Annexure A6). The Tribunal has considered the fact that there have been 03 vacancies of Fitter trade to be filled up after coming into operation of the Annexure A2 Recruitment Rules published vide SRO 150/2000. Out of the 03 vacancies arisen thereafter, the first was given to senior most Ex-Naval Apprentice, Shri. C.L. Sebastian. The next one was given to a departmental candidate, Shri. V.A. George. The 3rd vacancy which has arisen thereafter legitimately belongs to the category of the Ex-Naval Apprentice following the aforesaid ratio of 60:40. The applicant being the senior most among them, he was entitled to be appointed to that post. Even though the respondents had challenged that order before the Hon'ble High Court of Kerala in W.P.(C). No.15323 of 2004, they did not pursue the matter. 8 Accordingly, their writ petition was dismissed for non-prosecution. The respondents have also not taken any steps to restore the writ petition and to get it disposed of, on merit. Shri. A.K. Madhusoodhanan who was Respondent No.2 in the said writ petition has also not taken any steps in its final disposal by the Hon'ble High Court. Consequently the order of this Tribunal dated 15.12.2003 in O.A. No.828 of 2001 has attained its finality.
5. In view of the above decision, we quash and set aside the Annexure A10 letter of the respondents dated 26.08.2008 and allow this O.A. Consequently, we declare that the applicant was entitled to be appointed to the post of Engine Fitter w.e.f. 21.08.2001. The respondents shall, therefore, antedate his appointment to the aforesaid post to 21.08.2001 and grant all consequential benefits including seniority. However, the applicant will not be entitled for any back wages. The aforesaid direction shall be carried out within a period of two months from the date of receipt of a copy of this order. There shall be no order as to cost.
(Dated, the 16th February, 2010.)
K. GEORGE JOSEPH GEORGE PARACKEN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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