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Rajasthan High Court · body

2005 DIGILAW 2132 (RAJ)

Radhey Shyam Chhimpa v. Union of India

2005-08-11

R.S.CHAUHAN

body2005
Judgment 1. Heard learned Counsel for the parties. 2. This writ petition is directed against the order of the Central Administrative Tribunal, Jodhpur date 14.02.2005 passed in Original Application No. 134/2004 by which three applications were decided by a composite order. 3. The controversy concerns the assignment of seniority amongst high skilled personnel (HS) as a result of merger of High Skilled (Gr. II) and High Skilled (Grade-I) by order dated 20.05.2003 with retrospective effect w.e.f. 01.01.1996. 4. The petitioners were appointed initially as skilled artisan under the respondents during the year 1982-1983. In the course of time, they were promoted to the post of Highly Skilled Gr. II (for short HS II) on various dates in the year 1995. Thereafter, the process of selection for appointment in High Skilled Gr. I began and they were appointed as High Skilled Gr. I by order dated 24.08.1998 which was to take effect w.e.f. 08.08.1998. Promotion was accorded to one Shri Nathu Ram w.e.f. 06.01.1997 and others on various dates in 2000. 5. Until the order dated 20.05.2003 was passed effecting merger of two cadres of High Skilled Gr. II and Gr. I, the scheme of cadre was that from skilled artisan, a person so promoted to High Skilled Gr. II and High Skilled Gr. II to Scale I and from High Skilled Gr. II to next stage of promotion was on the basis of muster roll to the extent of 25% of high skilled category. 6. According to the seniority rule prevalent until order dated 20.05.2003 was made and two cadres were merged, a person in higher skilled category ranked senior to person in lower cadre. Subsequent to the merger, an order was issued on 24.02.2004 (Annexure-3) stating inter alia that certain individuals who were juniors as HS II and have been promoted after 01.01.1996 as HS I on passing the trade test, their seniority will be fixed appropriately in the combined list of highly skilled. This was part of the guidelines issued for restructuring the cadre of artisan staff in MES. Soon after issuance of order dated 24.02.2004, other guidelines/instructions were issued from the Director General of Personnel (MES) vide order dated 03.03.2004 addressed to Chief Engineers, Southern, Western, Eastern, Central and Northern Command and Commandant under QME, BEG, NEG of the Department. These directives have been issued with reference to the order dated 20.05.2003. Soon after issuance of order dated 24.02.2004, other guidelines/instructions were issued from the Director General of Personnel (MES) vide order dated 03.03.2004 addressed to Chief Engineers, Southern, Western, Eastern, Central and Northern Command and Commandant under QME, BEG, NEG of the Department. These directives have been issued with reference to the order dated 20.05.2003. After the letter dated 03.03.2004 was issued, the respondents issued a combined seniority list of high skilled cadre in different categories on 02.04.2004. According to the applicants/petitioners, the names of the applicants found place in the list at appropriate place. 7. The grievance of the petitioners arose when the process for filling up the next grade in highly skilled category of Master Craftsman (for Short MCM) in scale of Rs. 4,500-7,000/-to the extent of 25% of HS category started. The respondents while filling the posts, ignored the seniority list published on 24.02.2004 and promoted the persons on the basis of total length of service rendered as Highly Skilled Gr. II and Highly skilled Gr. I combined by ignoring the promotion granted prior to the actual date of merger of two cadres and by ignoring the published seniority according to which the persons who had already been promoted to High Skilled I had acquired a higher position in the service prior to 20.05.2003 than those who were not promoted until that date. The petitioners also alleged that their seniority published on 02.04.2004 has not been cancelled. Against the aforesaid apprehended injury on account of the proposed action of the respondents not to give effect to the published seniority of the personnel by falling back upon the determination of seniority on the basis of continuous service in the cadre of highly skilled by ignoring the distinction of two cadres existing until 19.05.2003. 8.This led to filing of original application seeking a direction to the respondents for considering the case of applicants as per their seniority at Annexure-A/6 and as a corollary, it was also prayed that the respondents be restrained from making promotion to the post of MCM ignoring the seniority list Annexure-A/4 or ignoring the promotions granted to the applicants as HS I and grant seniority according to the date of promotion on the post of HS I due to which they became seniors to those, who were not so promoted but were seniors in lower cadre and after taking into consideration any other seniority list. 9. 9. The respondents in their reply while did not dispute the factual averments and did not give any clue as to what is their defence except to say that they are acting in accordance with the directions. However, from the order of the Tribunal, we find that they placed reliance on Clause (g) of Para 3 of order dated 03.03.2004 prescribing “promotions made from HS II to HS I after 01.01.1996 shall become infructuous in view of the merger of posts” and urged that since the promotions made after 01.01.1996 have become infructuous, no benefit flowing from such promotions could be granted to those persons who have been promoted after 01.01.1996 because those persons who had not been promoted have also become high skilled now from 01.01.1996, their inter se seniority as on 01.01.1996 in existing cadre of HS Gr. II remain intact. This was so interpreted to be consequences of declaration that such promotions have become infructuous. The logical consequences of the respective promotion flows from Clause (g) of order dated 03.03.2004. .10. The Tribunal relying on this clause of the order dated 03.03.2004 opined that since the order dated 20.05.2003 is not under challenge, Clause (g) in the order dated 03.03.2004 is only consequential and natural corollary of the said order. Therefore, in the absence of any challenge to order dated .20.05.2003 challenge to Clause (g) of order dated 03.03.2004 cannot be sustained. Founding on the aforesaid conclusion, the Tribunal held that petitioners are not entitled to any relief . 11. Having given our anxious consideration to the controversy in this petition namely, whether the petitioners who have already attained the higher position in the service prior to order dated 20.05.2003 are deprived of that position as an automatic result of the merger. .12. Undoubtedly, two cadres lower and higher were merged with retrospective effect but the mechanism of working out the effect in an equitable and balanced manner was not a part of the order dated 20.05.2003 itself , and, therefore, it needed further separate instructions. .12. Undoubtedly, two cadres lower and higher were merged with retrospective effect but the mechanism of working out the effect in an equitable and balanced manner was not a part of the order dated 20.05.2003 itself , and, therefore, it needed further separate instructions. We have already noticed that first instruction relevant for the present purposes was issued vide communication dated 24.02.2004 by the Director General of Personnel M.E.S. envisaging that the post of HS I and HS II shall be merged retrospectively w.e.f. 01.01.1996, it reads as under:- .(ii) Certain individuals, who were junior as HS-II as on 01.01.1996 and have been subsequently (i.e., after 01.01.1996) promoted as HS-I on passing trade test, their seniority may be fixed appropriately in the combined seniority list of HS. .13. Subsequent thereto, in furtherance of this clause, the directions were clearly issued in Annexure-4 dated 03.03.2004 which reads as under:- 1. Reference Government of India, Ministry of Defence letter No. 11(1)/2002/D (civil) dated 20.05.2003 circulated this HQ letter No. B/21770/EIC (3) dated 27.06.2003. 2. As per the above letter, the grade structure of industrial Cadre has been revised in two phases as under :- From 01.01.1996 to 19.05.2003 3. The grade structure in the industrial as well as in the non-industrial trades, wherever already available and the pay scales of the defence artisan staff shall stand modified w.e.f. 01.01.1996 as under:- (i) Skilled: Rs. 3,050-4,590/- (ii) Highly Skilled: Rs. 4,000-6,000/- (iii) Master Craftsman: Rs. 4,500-7,000/- .(a) The post of HS I and HS II shall be merged retrospectively w.e.f. 01.01.1996 HS I will be enblock senior to HS. II. .(b) All existing HS I and HS II employees in the strength on 01.01.1996 (including those who were wasted out due to retirement death etc. on or after 01.01.1996 but prior to 19.05.2003) shall be re-designated as Highly Skilled and placed in the corresponding scale of pay. .(c) Theabove merger shall be effective from 01.01.1996 and in relaxation of trade test DPC etc., as one time exception. .(d) Vacanciesarising between 01.01.1995 and 19.05.2003 in HS post will be filled by promotion to the tune of 35% based on seniority without any trade test as one time measure. .(f) A trade wise seniority list of all highly skilled as on 01.01.1996 (after merging) should be prepared and circulated to all concerned. .(d) Vacanciesarising between 01.01.1995 and 19.05.2003 in HS post will be filled by promotion to the tune of 35% based on seniority without any trade test as one time measure. .(f) A trade wise seniority list of all highly skilled as on 01.01.1996 (after merging) should be prepared and circulated to all concerned. .(g) Promotions made from HS II to HS I after 01.01.1996 shall become infructuous in view of the merger of posts. 14. A perusal of these clauses read together leaves no room of doubt that the determination of seniority of merger was governed by Clause (a) and Clause (a) was directives to determine the combined seniority of cadre given to HS II. It is to be noticed that order of merger was issued on 20.05.2003, up to that date, many persons would have been promoted until 19.05.2003 by passing trade test and many of them may have been promoted ahead of their juniors and as per the existing scheme of the cadre, the position of those persons who had been promoted are on a higher pedestal and ordinarily could not have been reduced to lower rank to stand with those who were already standing lower. Since, the cadre strength was to take effect retrospectively, obviously, their designation and the pay scales would have been the same notwithstanding that earlier they were drawing different pay scales as on the date order dated 20.05.2003 was made. However, their inter se seniority as on that date was kept intact by ordaining that those persons who are HS I shall remain en block senior to those who are HS Gr. II Clause (g) has to be read with and in the context of Clause (a) in a manner to decide what has been affected by Clause (a) is not nullified. 15. Undoubtedly, while the Tribunal has referred that the order has to be read as a whole, but has committed the mistake of not reading the order as a whole. In the absence of reading Clause (a) of Para 3, wholly untenable and arbitrary view of whole merger exercise has been projected by simply reading Clause (g) in isolation. 15. Undoubtedly, while the Tribunal has referred that the order has to be read as a whole, but has committed the mistake of not reading the order as a whole. In the absence of reading Clause (a) of Para 3, wholly untenable and arbitrary view of whole merger exercise has been projected by simply reading Clause (g) in isolation. It is conspicuous that Tribunals attention was not drawn at all to this part of the order which was dealing with combined seniority of merged cadre of HS as on 20.05.2003 by taking into account what has been the position until that date. Inter se seniority of combined cadre has nothing to do with Clause (g), which clearly states that since merger has taken place from 01.01.1996, and all high skilled workers are now falling in certain category with effect from the date, the effect of promotions has otherwise become meaningless as far as designation is concerned. 16. It is not the case of respondents either that Clause (a) has been withdrawn or was not given effect to. As a matter of fact, after this order was issued, combined seniority was issued on 02.04.2004 giving effect to this clause by pointing out those persons, who have been promoted until 19.05.2003 were shown senior to those who were not promoted until then. If this position is accepted, the further consequences is clear that 25% posts of the combined HS cadre are set out for placing the officers in the pay scale of MCM on the basis of seniority which ought to follow the seniority as determined under Clause (a) of the combined cadre which came into being on 20.05.2003 17. In view of this clear position, we are of the opinion that the Tribunal has erred by ignoring this aspect of the matter and taking too harmonious view by reading Clause (g) of order dated 03.03.2003 in solution. This has resulted in ignoring the principle of seniority of the combined cadre in the order dated 03.03.2004 which has been binding on the respondents and which has been given effect to by putting senior most persons and which could not have been ignored while directing promotions to MCM by 25% strength on the basis of seniority alone. This has resulted in ignoring the principle of seniority of the combined cadre in the order dated 03.03.2004 which has been binding on the respondents and which has been given effect to by putting senior most persons and which could not have been ignored while directing promotions to MCM by 25% strength on the basis of seniority alone. The said order dated 02.04.2004 fixing seniority having remained undisturbed depicting right seating position and remain operative, there was no occasion for the petitioner to challenge order dated 29.05.2003 by which merger of cadre took place. It was merely a case of seeking mandamus to place HS personnel in MES pay scale as per seniority published on 02.04.2004 and operative. The Tribunal seriously erred in ignoring operative seniority list dated 02.04.2004 which has been issued after order dated 02.02.2004 and which remained operative, by refusing to give direction on wholly untenable ground not examining the merit of this contention because order dated 29.05.2003 was not challenged for which there was no occasion. 18. Accordingly, this writ petition succeeds and is allowed. The order of the Tribunal under challenge is set-aside and the respondents are directed to give effect to seniority list published on 02.04.2004 in the matter of future promotions by considering that seniority wherever it is so required to be taken into consideration. 19. There shall be no order as to costs.