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2011 DIGILAW 1235 (CAL)

Thomas Papachan v. UNION OF INDIA

2011-09-06

INDIRA BANERJEE, S.K.CHAKRAVARTY

body2011
Judgment :- S.K. CHAKRABARTI, J. 1. Since some common questions are involved in both these writ petitions the same are taken up for disposal by a common judgment for the sake of convenience. 2. In WPCT No. 1162 of 2011, the three writ petitioners namely Shri. Theodor Kujur, Shri K Ummer and Shri K.G.Krishna have challenged the legality and propriety of the common order dated 08.03.2011 passed in O.A. No. 140/AN/2009 and O.A. No. 56/AN/2009 by the Central Administrative Tribunal, Calcutta Bench, Circuit at Port Blair. The same order has been assailed by the writ petitioner Thomas Papachan in WPCT No. 1127 of 2011 separately. 3. While disposing of both the O.As, learned Tribunal has proceeded to consider the point at issue from the admitted fact from either side that under the Recruitment Rules namely Andaman & Nicobar Administration(Recruitment to Non- Gazetted post in Marine Department), Rules 1980, promotion in the post of Assistant Chargeman (Plater) will be 100% promotion, failing which by direct recruitment. In case of recruitment by promotion/deputation/transfer grade promotion it shall be made from amongst Boiler Makers, Platers and Welders Group ‘A’ who have put in 5 years of service in respective grades and qualify in the trade test which is by non-selection. In case of recruitment by promotion/deputation/transfer to be made – feeder grade will be from amongst Platers/Boilers with 3 years experience of plater in the Marine Department and who passed the trade test which is by selection. The applicants in O.A. No. 56/AN/2009 submitted representation dated 16.03.2006 and 28.08.2006 with a request to consider his promotion to the post of Chargeman(Plater) in pursuance to the result declared on 23.08.2000, in lieu of vacancy arising out of the demise of one Krishnamoorty. The applicants in O.A. No. 56/AN/2009 Shri Tarakeswar Rao and Mohd. Hanif were declared passed in trade test conducted for the post of Chargeman(Plater) in terms of letter dated 22.08.2000 in which Shri Tarkeswar Rao, Mohd. Hanif and the applicant were placed at Sl.Nos. 1, 2 and 3 respectively. 4. At that time there was administrative proposal as per letter dated 19.09.2000 for amendment to the existing Recruitment Rules for filling up the post of Assistant Chargeman, Chargeman etc. Hanif and the applicant were placed at Sl.Nos. 1, 2 and 3 respectively. 4. At that time there was administrative proposal as per letter dated 19.09.2000 for amendment to the existing Recruitment Rules for filling up the post of Assistant Chargeman, Chargeman etc. on the ground that the post of Chargeman is a supervisory post and the feeder post for the said post is to be from Assistant Chargeman whereas as per the existing Recruitment Rules, the feeder post is from Plater by skipping the intermediate post of Assistant Chargeman. There was a further proposal for amendment to the said Recruitment Rules in the letter dated 19.01.2007. 5. The learned Tribunal has also taken into account the fact that a Departmental Promotion Committee (DPC) was held on 10.01.2002 for promotion to the post of Foreman (Fitting), Chargeman(Fitting), Assistant Chargeman(Plater), Electrician, Mechanic etc. At that time Shri Tarkeswar Rao, Plater was considered for promotion to the post of Assistant Chargement (Plater) on regular basis. Subsequently, a DPC was held in 2004 for promotion to the post of Foreman (Plater), Chargeman(Plater), Assistant Chargeman(Ship Wright) and Assistant Chargeman(Plater). In the DPC the second person was considered for promotion to the post of Assistant Chargeman (Plater) on adhoc basis in terms of order dated 15.12.2004. It was also admitted fact that Shri Tarkeswar Rao was senior to the applicant in O.A. No. 56/AN/2009. The applicant and others approached the Labour Commissioner raising a dispute for consideration of their cases for promotion to the next post for category of posts as Chargeman(Plater Shop), Chargeman(Mechanic Shop) and that of Fitter Gr. II under the Marine Department, having been successful in the trade test held for the respective post to which they belong. It is the case of the applicant that he had already passed the trade test for the post of Chargeman in the year 2000, therefore, he should be considered for promotion to the post of Chargeman and he was no need to appear in the trade test again. 6. In DPC proceeding held on 07.06.2007 decision was taken to fill up one post of Chargeman in the chain of vacancy due to the death of one Shri T.Krishnamoorthy, Chargeman(Plater) which falls vacant with effect from 15.12.2005. The Committee decided that amongst some employees who have earlier appeared in the trade test for the post of Chargeman(Plater)in August, 2000 and declared passed. The Committee decided that amongst some employees who have earlier appeared in the trade test for the post of Chargeman(Plater)in August, 2000 and declared passed. Cases of Shri Tarkeswar Rao, Mohd. Hanif and Thomas Papachan who had appeared along with other Platers would be declared passed during August, 2000 but could not be accommodated due to non-availability of post of Chargeman would be considered. It was further held that they were in receipt of information that the trade test for the post of Assistant Chargeman(Plater) as well as Chargeman(Plater) was recently conducted i.e. pre-October, 2006 and the employees holding the post of Plater are suitable for the post of Chargeman(Plater) as recorded by the trade test committee in their report. The Committee further held that the post of Assistant Chargeman(Plater) is not a feeder post of Chargeman(Plater) and proposal for amendment for the post of Chargeman(Plater) was sent to the Administration during January, 2007 is under process and it will take time to finalize it by the competent authority. The Committee decided that Shri Tarkeswar Rao having experience of about 19 years of service in the respective trade and holding the post of Assistant Chargeman(Plater) at that time could be considered for appointment on adhoc basis pending amendment to the post of Chargeman(Plater). In respect of other applicant Thomas Papachan, it had decided that he was eligible for only those benefits which was bestowed upon his senior Shri Tarkeswar Rao, Mohd. Hanif and at the best his case can be considered for Assistant Chargeman(Plater) for which there was no available vacancy. 7. Then the applicant approached the learned Tribunal in O.A. No. 1/AN/ 2008 in which the 6th respondent was Shri Tarkeswar Rao. The relief granted in the said O.A was directed upon the respondents to give promotion to the applicant to the post of Chargeman(Plater) as he was duly selected in the trade test held in the year 2000 and DPC has also observed that the applicant was passed out candidate. The said O.A was disposed of with the following observations. “13. Admittedly, the Recruitment Rules have not yet been amended and therefore, the old recruitment rule still government the field. As per this Recruitment Rules the post of Assistant Chargeman is not a feeder post. The said O.A was disposed of with the following observations. “13. Admittedly, the Recruitment Rules have not yet been amended and therefore, the old recruitment rule still government the field. As per this Recruitment Rules the post of Assistant Chargeman is not a feeder post. However, the Hon’ble High Court has considered this position and directed for consideration of promotion of writ petitioner in WPCT No. 20 of 2000 to the post of Chargeman who was also holding the post of Assistant Chargeman like the private respondent. 14. Having considered the matter carefully and having gone through the direction of the Hon’ble High Court in the writ petition referred to above we dispose of this application with a direction to the respondent authorities to convene a DPC for treating the case of the promotion of the applicant, the private respondent no.6 and Mohd. Hanif who had cleared the trade test in the year 2000 against available vacancy of the Chargeman (Plater). Such consideration be made within three months from the date of communication of this order. We also provide that if the applicant is offered promotion in the post of Assistant Chargemen(Plater), as submitted by the respondents, he will be at liberty to accept the same. We further direct that the respondent authorities should pursue the matter regarding amendment of the Recruitment Rules and see that the rules are amended and notified as early as possible. No costs.” 8. In accordance with such direction, DPC was convened on 07.01.2009 for promotion to the post of Chargeman(Plater) and Assistant Chargedman(Plater). The Committed recommended to consider Shri G.Tarkeswar Rao, Assistant Chargeman(Plater) for appointment on promotion to the post of Chargeman(Plater) purely on adhoc basis till finalization of proposed amendment of Recruitment Rules against the existing vacancies of Late Krishnamoorthy, Ex-Chargeman(Plater). 9. In O.A. No 140/AN/99, it was contended that the applicants were called to appear for trade test for the post of Assistant Chargeman in the year 2006. They appeared and successfully came out. Initially Thomas Papachan moved the Tribunal for his promotion to the post of Assistant Chargeman without impleading other applicants who were subsequently impleaded and claimed for the promotion to the post of Assistant Chargeman(Plater). 10. The first applicant submitted representation dated 27.01.2009 and requested to fill up the post of Assistant Chargeman(Plater) since he passed the trade test in 2006. Initially Thomas Papachan moved the Tribunal for his promotion to the post of Assistant Chargeman without impleading other applicants who were subsequently impleaded and claimed for the promotion to the post of Assistant Chargeman(Plater). 10. The first applicant submitted representation dated 27.01.2009 and requested to fill up the post of Assistant Chargeman(Plater) since he passed the trade test in 2006. At that time he was serving as Plater from 2005 in the Dockyard. It is also admitted fact that according to the final seniority list of Marine Dockyard as on 31.08.2005 the applicants in O.A. No. 140/AN/2009 are all platers and figured against serial numbers 6, 7 and 9 respectively. But the applicant in 56/AN/2009 was not in the list of platers. Earlier Shri Theodor Kujur, the first applicant filed the WPCT No. 20 of 2000 challenging the order dated 11.10.1999 in O.A No. 86/AN/1998. In the said case the respondents stated that there were two posts of Assistant Chargemen(Plater) and one post of Chargeman. The post of Assistant Chargeman(Plater) is higher than the post of Plater and on the recommendation of the DPC the applicant was promoted to the post of Assistant Chargeman (Plater) and therefore, the applicant cannot straightway be given promotion to the post of Chargemant(Plater) without recommendation of the DPC. The respondent also contended in the said writ petition that the petitioner has attended the trade test during July, 1992 for the post of Chargeman(Plater) and was qualified in the trade test along with others, as per the then provisions of Recruitment Rules for the post of Chargeman (Plater). In the meantime, the intermediate post of Assistant Chargeman (Plater) has been treated as a supervisory post. According to the Recruitment Rules for the post of Assistant Chargeman, the same vacancy should be filled up 100% by promotion from amongst the Boiler Maker, Plater and Welder grade-1. Accordingly, Tarkeswar Rao and Shri G. Krishnamoorthy were promoted to the post of Assistant Chargeman by an order dated 25.3.78. 11. According to the Recruitment Rules for the post of Assistant Chargeman, the same vacancy should be filled up 100% by promotion from amongst the Boiler Maker, Plater and Welder grade-1. Accordingly, Tarkeswar Rao and Shri G. Krishnamoorthy were promoted to the post of Assistant Chargeman by an order dated 25.3.78. 11. Learned Tribunal while considering such claim had taken into account the observation of the Hon’ble High Court as at para 8 of the judgment which is quoted below:- “From the aforesaid Recruitment Rules read with the said Circular, there cannot be any manner of doubt therefore, that not only the Assistant Chargeman was liable to be considered for promotion to the post of Chargeman for which the aforesaid trade test was scheduled to be held, the petitioner holding the post of Plater was equally eligible to be considered for promotion to the post of Chargeman and for which he was also asked to appear in the trade test. It is not disputed that the petitioner succeeded in the trade test, yet his case for promotion to the post of Chargeman was never considered, on the contrary the DPC considered his case only for the post of Assistant Chargeman. The fact that the writ petitioner along with other did not appear in the said trade test and also passed the same cannot also be disputed, inasmuch as Annexure ‘H’ to the writ petition is the result of the said trade test held by the respondents and published by them.” 12. The stand of the private respondent in O.A. No.56/AN/2009 was same as taken by the official respondents. Learned Tribunal has also taken notice of admitted fact that the respondents issued Circular Notice dated 29.08.2006 declaring that the employees who have already passed the trade test are not required to appear in the trade test. 13. The learned Tribunal had also taken into account that when occasion arises for filling up of the vacancies, the DPC proceeded according to the seniority list under the Recruitment Rules prevailing at that time pending finalization of the amendment and observed further that the respondent authorities while filling up the post of Assistant Chargeman(Plater) by promotion should comply with the direction of the Hon’ble High Court and are bound to follow the seniority list of the feeder grade i.e. Plater. Therefore, the learned Tribunal ultimately held that one has to pass the trade test as per the Recruitment Rules. After passing the trade test and fulfilling the eligibility criteria under the Recruitment Rules, only eligible candidates can be considered for promotion to the post of Assistant Chargeman(Plater). It is further observed that Shri Thomas Papachan is the junior most person and Shri Tarkeswar Rao is the senior person. Therefore the respondents were directed to consider the service particulars and the eligibility criteria under the Recruitment Rules and conduct the DPC proceeding for filling up the respective posts including post of the Assistant Chargeman(Plater) according to the direction of the Hon’ble High Court passed in WPCT 20 of 2000. The contention of the applicant in O.A.No. 56/AN/2009 that since he is junior he need not appear for trade test as per the circular dated 29.06.2006 was rejected as the said applicant could not make out a case for grant of relief. Accordingly, the learned Tribunal dismissed the O.A No. 56/AN/2009. 14. In respect of application in O.A.No. 140/AN/2009, learned Tribunal held that since applicants in particular applicant no.1 has not passed the trade test for the post of Chargeman in 2000, they are not eligible to be considered for promotion to the post of Chargeman(Plater). It, however, held that one of them certainly fulfil the condition for promotion to the post of Assistant Chargeman and as such from administrative interest one of them should be promoted on adhoc basis to the post of Assistant Chargeman (Plater). The learned Tribunal has also directed that it will be unusual to fill up level 3 posts(Chargeman) bypassing level 2 posts(Assistant Chargeman) and by promotion from level 1(Plater) to the post of Chargeman and the incumbent held a lien to such post and hence the post be kept vacant. 15. The learned Tribunal also observed that respondents are silent about the time frame in which Recruitment Rules should be amended. It is also silent as to whether the official respondents are to finalize the proposal of amendment of Recruitment Rules within a period of three months from the date of receipt of a copy of the order. So it observed “They should also consider if the post is required to be filled up, the minutes of the DPC are notwithstanding. If yes they should act as per the law. So it observed “They should also consider if the post is required to be filled up, the minutes of the DPC are notwithstanding. If yes they should act as per the law. O.A. No.140/AN/2009 is disposed of accordingly.” 16. Being aggrieved by and dissatisfied with such order Shri Thomas Papachan has preferred WPCT 1127 of 2011. He has contended inter alia that the respondent authorities have illegally ignored the candidature of the writ petitioner for filling up the post of Assistant Chargeman(Plater) by promotion in violation of the order passed by the Hon’ble Court in O.A. No. 1/AN/2008 dated 10.12.2008, though such assurance was given to the applicant before the Hon’ble court and, therefore, learned Tribunal is not justified in dismissing the application on the ground that the petitioner did not appear in the trade test for the post of Assistant Chargeman. 17. Similarly, being aggrieved by and dissatisfied with the same order, Shri Theodor Kujur, K. Ummer and Shri K.G. Krishna have filed WPCT No. 1062 of 2011 contending inter alia that the learned Tribunal has disposed of their application without giving any relief and has failed to appreciate the letter and spirit of the judgment dated 21.03.2000 passed in WPCT No. 020 of 2000 and, therefore, has sought for a direction upon the respondent authorities particularly the respondent no.5 to act in accordance with law and to consider the promotion of petitioner no.1 as he is senior most as per Recruitment Rules with further direction to consider promotion for the post of Assistant Chargeman as per seniority from the feeder post of Plater, subject to qualify in trade test as per Recruitment Rules by setting aside the impugned common order dated 08.03.2011 as aforesaid. 18. In their affidavit in opposition, the respondent authorities have claimed that the Recruitment Rules for the post of Chargeman(Plater) and Assistant Chargman(Plater) have been amended and notified in terms of notification No. 135 of 2011/ F.No. 42-517/2011-TR dated 26.05.2011. As per such amended Recruitment Rules, the post of Chargeman(Plater) is to be filled up by promotion from amongst the Assistant Chargeman(Plater) with 5 years regular service in the grade, failing which by direct recruitment. As per such amended Recruitment Rules, the post of Chargeman(Plater) is to be filled up by promotion from amongst the Assistant Chargeman(Plater) with 5 years regular service in the grade, failing which by direct recruitment. Similarly, the post of Assistant Chargeman(Plater) is to be filled up by promotion from amongst the Platers with 8 years of regular service in the grade and qualify in the departmental trade test which by direct recruitment and thus removed the anomalies for which such amendment was sought. 19. It is further contended that Theodor Kujur(Plater) has already passed the trade test for the post of Assistant Chargeman(Plater) in terms of Directorate’s Order No. 2516 dated 29.06.2006 and as such his case is going to be placed for consideration by the DPC along with all other eligible candidates. It is also claimed that the private respondents would have no claim for appointment in the post of Assistant Chargeman (Plater) as admittedly he did not qualify in the trade test for such promotion. As per revised Recruitment Rules, the post of Assistant Chargeman(Plater) is a non selection post to be filled up by 100% promotion from amongst the Platers with 8 years of regular service in the grade and qualify in the departmental trade test. 20. It is further claimed by the respondents that since the Recruitment Rules have been amended and further promotion to the above higher posts shall be made in accordance with the revised Recruitment Rules shortly, there is no merit in these applications which should be dismissed with costs. 21. From the rival contentions of both the parties, it appears to us that the only point for consideration is that as to whether the impugned composite order of the learned Tribunal requires interference following amendment of the relevant recruitment rule in 2011 for the purpose of filling up of vacancy which arose prior to such amendment and directed to be filled up by the learned court of competent jurisdiction much earlier. 22. Learned lawyer for the writ petition of WPCT 1127 of 2011 has contended that the petitioner as well as the private respondents appeared in the trade test in August, 2000 and were declared as successful on 23.08.2000 along with two others platers Shri Tarkeswar Rao and Mohd. Hanif while the private respondents could not succeed in the said test. The DPC recommended promotion of Tarkeswar Rao on 05.02.2002 and Mohd. Hanif while the private respondents could not succeed in the said test. The DPC recommended promotion of Tarkeswar Rao on 05.02.2002 and Mohd. Hanif on 14.12.2004 for the purpose of filling up the post of Assistant Chargeman (Plater). It has been further contended that respondent authority has issued a circular dated 29.08.2006 publishing the list of candidates for conducting trade test amongst the employees of Dockyard and it has been categorically mentioned therein that the trade test passed employees need not appear in the trade test again. It is further contended that the DPC has recommended promotion of two other senior successful candidates on 07.06.2007 for the purpose of filling up the post of Chargeman(Plater) by Shri Tarkeswar Rao and the post of Assistant Charageman(plater) by Mohd. Hanif on the basis of their success in trade test held earlier. The petitioner is on the same footing but his claim was not considered though he was qualified in the trade test held in 2000 for want of vacant post. The present grievance, however, of the petitioner is that in terms of order passed by learned Tribunal on 10.12.2008, the respondents have conducted the DPC on 07.01.2009 and in the said DPC, they have recommended promotion of Shri Tarkeswar Rao for the post of Chargeman(Plater) but withheld the question of filling up the post of Assistant Chargeman(Plater) till amendment of the existing Recruitment Rules which is arbitrary and not tenable in law. 23. In their affidavit in opposition the respondent have not denied observations of the DPC dated 7th June, 2007 that the question of promotion of the petitioner to the post of Assistant Chargeman(Plater) will be considered when such post will fall vacant. Admittedly the post of Assistant Chargeman(Plater) is lying vacant from 2009 on account of promotion of Tarkeswar Rao to the post of Chargeman(Plater). 24. After careful consideration of the entire matter and earlier decisions so far acted upon, it appears to us that in terms of Circular dated 29th August, 2006, the respondents have exempted the employees who have already passed the trade test from appearing at the further trade test to fill up future vacancies. The petitioner Thomas Papachan was on the same footing with all other trade test passed candidates who have been already promoted on the basis of the result of the trade test held in August, 2000. The petitioner Thomas Papachan was on the same footing with all other trade test passed candidates who have been already promoted on the basis of the result of the trade test held in August, 2000. Thus, he has accrued certain rights which cannot be forfeited or denied on account of administrative delay in the process of amendment of relevant Recruitment Rules for removal of certain anomalies. When a right is conferred or accrued for promotion and remedy is available under recruitment rules prevailing at that time there should not be any discriminatory treatment of a section of employees belonging to same group by favoring some other employees of such group. While considering his claim, we are also of not oblivion of the commitment made by the DPC held on 7th June, 2007 wherein they have decided that as there was no vacancy the question of promotion of the petitioner in the post of Assistant Chargeman will be considered as soon as vacancy will arise. Administration should adhere to such commitment to prove their bonafide intention so placed on record. 25. In this connection, learned lawyer for the petitioner has referred to and relied upon the principle laid down in the case of State of Rajasthan –vs- R. Dayal and Others reported in (1999 10 SCC 419]. The ratio of the aforesaid case is quoted below:- “The posts which fell vacant prior to the amendment of the rules would be governed by the original rules and not by the amended rules. As a necessary corollary, the vacancies that arose subsequent to the amendment of the rules are required to be filled up in accordance with the law existing as on the date when the vacancies arose. Even a carried-forward vacancy is required to be considered in accordance with the law existing unless suitable relaxation is made by the government.” 26. From the materials on record we find that the process of selection to fill up the vacant post of Assistant Chargeman(Plater) was initiated while the DPC decided to fill up the post of Chargeman(Plater) by way of promotion of Tarkeswar Rao at their meeting held on 7.1.09 but decided to keep the post of Assistant Chargeman(Plater) vacant till finalization of the amendment of recruitment rules. Such decision is a clear proof of the fact that the respondent has decided to carry forward the existing vacancy of post of Assistant Chargeman till amendment of necessary Recruitment Rules in 2011 and obviously with the intention to bring him within the purview of amended recruitment rules thereby depriving of his accrued claim for promotion at par with other trade test passed candidates similarly promoted on the basis of recruitment rules prevailing at that time. Such a decision seems to be arbitrary and not sustainable in law. 27. From annexure – A-4 to the affidavit in opposition filed in connection with WPCT No. 1062 of 2011, we further find that the said notification dated 26th May, 2011 amending the existing Recruitment Rules was published with the declaration in terms of Rule1 (ii) that the same shall came into force on the date of their publication in the Official Gazette i.e. 26th May, 2011 having no retrospective effect. Thus state has not relaxed the rules for bringing old pending vacancies within its fold and so such amendment is prospective in operation. 28. Therefore relying upon the principle laid down in the said case of State of Rajasthan –vs- R.Dayal and Others, we further hold that the vacant posts of Assistant Chargeman (Plater) which were carried forward before publication of such amended rule should be filled up in accordance with Rules existing on the date of occurring of the vacancy. Therefore, in our considered opinion, the case of the present petitioner for the purpose of filling up vacant post of Assistant Chargeman(Plater) should be considered in accordance with the Recruitment Rules prevailing on the date when vacancy arose and when DPC initiated selection process on 7.1.09. We also further hold that the writ petitioner Shri Thomas Papachan who was already qualified in the trade test of 2000 is not required to appear in the trade test since the respondent exempted the successful candidates by the notification and as such cannot forfeit the existing right of the petitioner in fulfilling eligibility criteria to be considered for the purpose of filling up the carried forward vacant post of Assistant Chargeman (Plater) under the pre-amendment Recruitment Rules. From this point of view the composite order of learned Tribunal requires interference for giving further effect to the aforesaid direction in the present context by suitable modification. 29. From this point of view the composite order of learned Tribunal requires interference for giving further effect to the aforesaid direction in the present context by suitable modification. 29. Accordingly, we direct the respondents to consider the claim of promotion of the writ petitioners in both these cases in terms of Recruitment Rules prevailing prior to 26.05.2011 for the purpose of filling up the vacancies which have been carried forward till publication of the amended Recruitment Rules subject to fulfilling their eligibility criteria and that the writ petitioner in WPCT No. 1127 of 2011 need not appear in the trade test further since admittedly he has qualified in the trade test conducted in August, 2000. The composite order dated 08.03.2011 passed in O.A. No. 140/AN/2009 shall stand modified to the above effect. 30. We further direct that the process of selection to fill up the vacant post of Assistant Chargeman (Plater) carried forward so far which arose prior to amendment of the rule shall have to be completed by the respondents within three months from the date of communication of this order in terms of previous Recruitment Rules. 31. Both the writ petitions are, thus, disposed of. 32. Urgent Photostat copy of this judgment be supplied to the parties, if applied for, on usual undertakings. I agree.