Madhya Pradesh High Court
Tularam Chadar vs Union Of India on 9 October, 2012
HIGH COURT OF MADHYA PRADEESH JABALPUR
(Writ Petition No.12855/2009)
Tularam Chadhar
Vs.
Union of India and others
PRESENT : HONOURABLE SHRI JUSTICE AJIT SINGH
HONOURABLE SHRI JUSTICE SANJAY YADAV
Counsel for petitioner Shri, S. Chakravarty, Advocate
Counsel for Respondents Shri, S.A. Dharmadhikari, Advocate
O R D E R (9/10/2012) The following order of the Court was delivered by Sanjay Yadav, J : This petition under Article 227 of the Constitution of India is directed against order dated 26.5.2009, passed by Central Administrative Tribunal, Jabalpur Bench, Jabalpur; whereby Original Application Nos. 829 and 834 of 2007 have been dismissed.
2. Vide Original Application petitioner sought quashment of communication dated 12.9.2007 and a direction to respondents to promote petitioner as Highly Skilled Tool Maker w.e.f. 1.1.1996 and for grant of difference of salary.
3. Uncontroverted facts briefly are that, the petitioner in W.P. No. 12855/2009 : Tularam Chadhar was initially appointed as Grinder Skilled in pay scale of Rs.9501500 w.e.f. 16.7.1990. Promoted as Grinder High Silled II w.e.f. 29.3.1999 in pay scale of Rs.40006000. Thereafter was promoted as Tool Maker, High 2 W.P. NO. 12855/2009 Skilled Grade I in pay scale Rs.40006000 w.e.f. 6.6.2002. Thereafter w.e.f. 1.1.1999 he got the benefit of restructuring w.e.f. 1.1.1999 as Grinder High Skilled and further promoted as Chargeman (Tech) Grade II w.e.f. 21.3.2006 in pay scale Rs.50008000.
4. The petitioner in W.P. No. 12857/2009 was initially appointed as Turner Skilled in Grade Rs.260400 (revised as Rs.9501500 and Rs.30504590), thereafter promoted as Turner High Skilled in Grade Rs.40006000 w.e.f. 29.3.1999, and as Tool Maker High Skilled w.e.f 6.6.2002 in Grade Rs. 40006000. Thereafter w.e.f. 1.1.1999he got the benefit of restructuring w.e.f 1.1.1999 as Turner High Skilled.
5. Since equilibrium is sought with respondent No. 4 Shri S.K. Malviya (though not impleaded in W.P. No. 12855/2009, his Career Advancement may also be noted at this stage. He was appointed as Machinist Skilled in Grade Rs.260400 w.e.f. 16.9.1988, thereafter promoted as Machinist High Skilled Grade II w.e.f. 29.3.1999 in pay scale Rs.40006000, and as Toolmaker High Skilled I w.e.f. 6.6.2002. Thereafter w.e.f. 2.12.1996 he got the benefit of restructuring as Machinist High Skilled Grade I in pay scale 40006000.
6. The restructuring of cadre of Artisan Staff, whereunder the benefit has been conferred from retrospective date, i.e., from 1.1.1999 to the the petitioners and 2.12.1996 to respondent No. 4 was in deference to and in partial modification of the recommendations of the Fifth Central Pay Commission made in paragraphs 54.1618 and 5429 of its report, vide circular No. 11 (1)/2002/D(Civ.I) Govt. of India, Ministry of Defence dt. 20/5/2003 as a result whereof the pay scale of Defence Artisan Staff was modified w.e.f. 1.1.1996 as under:
3 W.P. NO. 12855/2009(i) Skilled Rs.30504590
(ii) Highly Skilled Rs.40006000
(HSI+HS2
(iii) Master Craftsman Rs.45007000
7. Furthemore, clause 3 (a), (b), (c), (d) (e) of circular dated 20.5.2003 provides for "3 (a) Wherever the grade structure in the Industrial as well as in the the NonIndustrial trades is already existing in the ratio of 65:20:15, in the erstwhile Skilled: HSII: HSI, the merger of HSII and HSI shall be treated to have come into effect from 1.1.96 and the grade structure of Skilled and Highly Skilled categories shall be in the ratio of 65:35 (20+5).
(b) The post of Master Craftsman shall not be part of the hierarchy and the placement in this grade will not be treated as promotion for Highly Skilled Grade either under normal promotion rules or under the ACP Scheme.
(c) The selection from Highly Skilled grade in the grade of the Master Craftsman shall be 10% of Highly Skilled Cadre (i.e. 10% of the grade of the Master and the placement in this grade shall be w.e.f. 1.1.96 and upto the date of the issue of these orders.
(d) The placement of the individuals in the posts resulting from the restructuring and ratio shall be made w.e.f.1.1.96, in relaxation of the conditions, if any, i.e. trade test etc. as one time measure.
(e) The above provisions may also be made applicable, as a special case, in relaxation of the existing rules/instructions to the employees who have either retired or died after 1.1.96.
(i) From the date of issue of these orders all the trades classified as Skilled shall now be modified in the following intergrade ratio
(i) Skilled (Rs.30504590) : 45%
(ii) Highly Skilled (Rs.40006000) : 55% 4 W.P. NO. 12855/2009
(iii)Master Craftsman (Rs.45007000) : 25% of the Highly Skilled Grade posts will be placed in the grade of the Master Craftsman. They will however, not be a part of the hierarchy.
(ii) The above mentioned itergrade ratio shall be worked out based on the sanctioed/authorized strength.
(iii) Since the post of Master Craftsman is not a part of the hierarchy, the placement in this grade shall not be treated as promotion for Highly Skilled Grade either under normal promotion rules or under ACP, Scheme.
(iv) The post of Master Craftsman shall continue to be considered as highly skilled grade for the purpose of promotion to the grade of ChargemanII (Rs.55008000).
(v) The benefit of the first and second ACP to the skilled workers will be as per the orders issued by the DOP&T under their O.M. Dated 9.8.99 and subsequent clarifications issued on the subject.
(vi) Where there is direct recruitment at the level of HSI/HS II in Defence Extts., the number of Master Craftsman (not exceeding 25% of Highly Skilled may be decided considering the functional requirements by the concerned administrative Sections in the Ministry of Defence in consultation with their concerned Integrated Finance.
(vii) The placement of the individuals in the posts resulting from the above restructuring and ratio revision shall be made from the date of issue of the orders, inrelaxation of the conditions, if any, as one time measure.
(viii) The procedure for selection to the grade of Master Craftsman shall be as laid down in para2 & 3 of Ministry Defence letter No.1(2)/80/D(Civ.I) dated 21st September, 1982, as amended with the exception that the number Master Craftsman in each trade shall be upto 25% of the total number of sanctioned posts in the Highly Skilled Grade in each Organization instead of 10% as was provided for in para2(i) of aforesaid Ministry of Defence letter.
5 W.P. NO. 12855/2009(ix) The existing recruitment rules for the Tradesmen may be amended accordingly."
8. That, regarding restructuring of cadre of Industrial cadre, it was clarified vide Head Quarter Director General Quality Assurance letter No. A/86320/DGQA/Recadre/Adm10 dated 13.11.2003 that:
"(a) Vide Govt. of India letter No.11(1)/2002/D(Civil) dated 20 May 03, the cadre of Industrial Staff has been restructured. The post of HS & I and HS II has been merged w.e.f. 1.1.96 and the present ratio has been changed to 35:65 in HSI and HSII & Skilled categories. As the resultant vacancy in the grade of HS are to be filled by the promotion a11 instructions pertaining to the reservation are to be followed.
(b) The administrative instructions vide this HQ letter No.A/86320/RR/Ind/DGOA Dr10 dated 18 Sept.93. That envisage holding of any review DPC in grade of HS/SkilledI. Therefore, there is no need of cancellation of any DPC held during the period 1.1.96, to 1 May 2003, except in the cadre of HS II and HS I.
(c) It is confirmed that benchmark percentage has to be maintained and any excess holding in prescribed percentage may be dealt with as per the provisions contained in letter No.07311/DGOA/Adm/RMD (PE)/2356/D(OA) dated 1.1.99
(d) Skilled trademan from any other trade can be promoted to the post of tool maker HS during the period 01 Jan.96 to 19 May 2003.
(e) It is confirmed that the Examiner HSII promoted as Toolmaker HSI during the period 1996 to 1997 may be held against the vacancy of Toolmaker HS till they are wasted.
(f) Yes the authorization of Toolmaker HS has to be bifercated into HS & Skilled in the ratio of 55:45 after 19 May 03.
(g) As the authorised strength of all categories mentioned in Para 2 (g) are more than 2, therefore there is no need of 6 W.P. NO. 12855/2009 clubbing these categories into one group. These categories may be kept separate for granting promotion.
9. The petitioners in furtherance to cadre restructure of Defence Artisan Staff vide circular dated 20.5.2003 and subsequent circulars were though given the benefit of restructuring w.e.f. 1.1.1999, thus anti dating their placement in Grade Rs.40006000 from 6.6.2002 to 1.1.1999 in their respective trades. They still raised grievance claiming that they be given the benefit of restructuring in Toolmaker Trade w.e.f 1.1.1996 instead of the Trade they were holding, viz., Grinder and Turner, as three posts of Toolmaker High Skilled was lying vacant as in the year 1996. The representation made to that effect was turned down vide communication dated 12092007, for the following reasons, viz.,
(a) The restructuring of the industrial cadre took place vide Gol. MoD letter No. II(i) 2002/D/(CivI) dated 2052003 received vide HQ DGQA New Delhi letter No. A/92163/PAY COM/DGQA/ADM7B dated 04 Jul/Aug 2003. The modalities for restructuring the cadre in two Phases was issued vide HQ DGQA letter No. A/86320/RR/IND/DGQA/ADM10 dated 16 Sep 2003. Prior to receipt of these orders he was promoted to the grade of Toolmaker HSI wef 06062002 vide DO PartII No. 252 dated 09 Jul 2002. In accordance to the instructions contained vide ibid HQ DGQA letter Shri TR Chadar was placed in the grade of Grinder HS wef 01011000.
(b) Based on the effect of restructuring of cadre of industrial, Shri TR Chadar had been placed in the grade of Grinder HS wef 01011999 in terms of Gol, MoD letter No. II(i) 2002/D/(CivI) dated 20 May 2003. It is intimated that whatever trade the individuals were already promoted to prior to 20 May 2003 had not been disturbed and placement was done in the respective trades. The fact that Shri TR Chadar had been promoted to the grade of Toolmaker HS1 wef 06062002 vide DO PtII No. 252 dated 09072002 is the case of promotion prior to inplementation of restructuring of industrial Cadre vide Gol, MoD letter No. II(i) 2002/D/(CivI) dated 20 May 2003 received vide HQ DGQA New Delhi letter No. A/92163/PAY COM/DGQA/ADM7B dated 04 Jul/Aug 2003.
(c) That in view of the DO P & T UO No. C1151/DO(ESSTD) dated 22022006 and concurred vide Min of Def (Fin/AG/PB) vide their D No. 77/AG/PB/ 2006 dated 22032006 and the honorable CAT Ernakulam in its Judgment dated 17052005 on OA 7 W.P. NO. 12855/2009 882/2003, it is intimated that a clarification had already been conveyed to Shri TR Chadar vide this Controllerate letter No. 1876/TT/DPC/CQAW dated 31082006 clarifying that as per the judgment of the Hon'ble CAT Ernakulam, individuals who got promotion by way of passing trade test between 01011999 to 20052003 would be enblock senior to those who got promotion as a result of cadre restructuring. Therefore, the judgment of the Hon'ble CAT can not be applied in the present case. As such the contentions of Shri TR Chadar that he will remain as Grinder HS is not tenable.
(d) Placement to Master Craftsman is conducted by HQ New Delhi based on the inputs given by all the Armts Estt under the Director,DQA (A) New Delhi. Since the Toolmaker HSI came under the purview of Highly Skilled and Skilled grade in the ratio of 55:45 wef 20 May 2003 only, the placement of Master Craftsman in this Category was affected and as the trades to various Industrial cadre had already been allotted prior to 20 May 2003 the same was not disturbed and the inputs were accordingly submitted to HQ DQA(A) New Delhi/Nodal Cell for conducting DPC for placement to Master Craftsman. In this process, due to reduction in the authorized strength of Toolmaker HS as a result of application of 55:45 ratio those persons who had already been promoted to Toolmaker HSI as in the cases of Shri TR Chadar, C/MII had to wait for their turn till a vacancy of Master Craftsman occurs in the Toolmaker category. Hence the contention of Shri TR Chadar that the administration had failed to comply with instruction totally is incorrect and misplaced and no injustice done to him."
10. Aggrieved, petitioners respectively preferred Original Application No. 829/2007 and 834/2007. The Tribunal vide impugned order dismissed the claim, holding :
"10. We may note that vide impugned communication dt. 16th September, 2007, the respondents have categorically stated that cadre of Industrial staff had been restructured vide Govt. of India letter dt. 20th May, 2003, which had been endorsed by Ministry of Defence to all DEQA Estts. On 16th September 2003. DGQA issued certain clarification on 13th Nov. 2003, which were endorsed to all concerned 15th Jan, 2004 (RJ2), wherein para (b) it has been specifically stated that : "The administrative instructions issued vide this HQ letter No. A/86320/RR/Ind/DGQA/Adm10 dated 16 Sep 03 do not envisage holding of any review DPC in grade of HS/Skilled Grade. Therefore, there is no need of cancellation of any DPC held during the period 1.1.1996 to 19 May 2003 except the .. HS II to HS I." We may 8 W.P. NO. 12855/2009 further note that circular dated 19th Nov. 2004 (AnnexureII) filed along with MA No. 13909 in specific recites that : " In 1984 inter grade ratio of 15:20:35 (HSI :
HSII : SK) was introduced in the 19 common skilled categories vide Govt. order No. 5846/DS(O & M)/Civ I/84 dated 15 Oct 84 circulated vide this HQ letter No. A/ 94486/Gen/II/DGI (Adm7B) dated 20/26 Oct 84. The isolated categories were not covered by these orders".
The isolated categories in DGQA, mentioned in the said circular, under the category of HSI included the post of "Tool Maker". We may observe that said circular dated 19112004 is of great significance & has not been challenged in present OAs.
11. Thus perusal of the above would establish that there had been subsequent clarification in the nature of Circular dated 13th Nov. 2003 which makes the position absolute clear that as the circular dt. 20th May, 2003 did not require cancellation of DPC held for grade of HS/Skilled Grade during 1.1.96 to 19.5.2003, the applicants' contention that their promotion to the post of Grinder HS w.e.f. 1.1.1999, and thereafter further promotion to the grade of Toolmaker HS GrI w.e.f. 6.6.2002 are rendered null & void cannot be accepted. Specific directions have been issued therein not to cancel the effect of any DPC held during 1.1.96 to 19.5.2003, the period during which the applicant had been promoted as Grinder HSI as well as Toolmaker HSI. We may also note that though he made reference to Ernakulam Bench judgment dt. 17.5.2005 in OQ No. 882/2003, but copy of said Order has neither been placed on record nor produced during the course of hearing, and therefore, we will not be justified to make any comment on said aspect. We may further note that applicants have not pointed out which person belonging to isolated categories, though granted benefits of HS and HSI during 1.1.96 to 20.5.2003 treated in any other manner, and therefore contention of arbitrariness and discrimination has not been established. As such we are of view that the applicants have miserably failed to establish any illegality in the impugned order dated 12.9.2007. Therefore, they are not entitled to any relief."
11. Though the petitioners have challenged the order passed by Tribunal on the ground that the Tribunal has failed to appreciate facts and the circulars issued from time to time in right perspective, however, no material is brought on record to dislodge the finding that the promotions, which were effected between 1196 to 1952003 were not to be cancelled to make way to the restructure as brought in vogue vide circular dated 2052003.
9 W.P. NO. 12855/200912. On the contrary, the fact reveals that the benefit of restructuring was extended to the petitioners from retrospective date in their respective parent Trade. The claim for grant of benefit from 1196 in Toolmaker trade was rightly denied as till 6.6.2002 the petitioners respectively were Grinder and Turner and the respondent No. 4 (not impleaded in the petition) was Machinist. The benefit from 1196 in Toolmaker Trade cannot be extended as the petitioners were not been in said Trade. The promotion in Toolmaker Trade from other trade took place on 662002 because of certain policy decision, prior to said date petitioners embraced their respective trades and it is not their case that in their respective trade vacant posts were available prior to 1199. Respondent No. 4 since was a Machinist there cannot be any comparison in case he gets benefit of restructuring because availability of posts in his trade earlier than the petitioners.
13. In view of above analysis we find no substance in the petition as would warrant an interference with the orders passed by the Tribunal.
14. In the result petition fails and is hereby dismissed. However, no costs.
(AJIT SINGH ) (SANJAY YADAV)
JUDGE JUDGE
VT/