Research › Search › Judgment

Madras High Court · body

2017 DIGILAW 2508 (MAD)

M. S. Kannan v. Union of India, Represented by its Secretary, Ministry of Defence

2017-08-08

G.JAYACHANDRAN, HULUVADI G.RAMESH

body2017
ORDER : G. Jayachandran, J. Seeking to quash the order passed by the sixth respondent Tribunal in O.A.No.182/2013 dated 21.07.2016, the petitioners are before this Court with this writ petition. 2. Today, the matter is listed under the caption for admission. No notice was issued to the respondents as the order which is proposed to be passed will not affect the respondents in any manner. 3. The writ petitioners were appointed as Artisan staff in Defence Establishment during the month of April 2003, in various Units. Soon after their appointments, there was a Scheme introduced by the Ministry of Defence re-structuring Artisan staff in the Defence Department in modification of the recommendation of the 5th Central Pay Commission. The said Scheme dated 20.05.2003 was widely circulated. The existing ratio of Skilled, Highly Skilled - II, Highly Skilled - I was revised. Based on the Scheme of restructuring, these petitioners who were just probationers at that time were placed as Highly Skilled Grade - II, within a month from their appointment as Skilled Artisans and they were continuing in their position for nearly 8 years until the Department realised the error in promoting certain persons from Skilled to Highly Skilled - II without satisfying the eligibility criteria. Therefore, the second respondent issued an order dated 03.05.2012. The relevant portion of the said order is extracted below:- “2. In this connection, it is stated that one-time relaxation granted by MoD in the case was not applicable for persons who were in probation. Therefore, the persons appointed on 15 April 2003 were not eligible for promotion to HS grade against the posts created through cadre re-structuring. In contravention to above, 04 skilled tradesman of FMT trade who were appointed on 15 April 2003, were promoted to Highly Skilled-FMT w.e.f 20 May 2003. 3. 8 BRD, AF vide their letter No.8BRD/3005/2/42483/PC dated 02 Jan 2012 has stated that the same was done as per Air HQ clarification issued vide letter No.Air HQ/23049/Skilled / PC-4 dated 12 Jan 2004. However, Air HQ clarification dated 12 Jan 2004, quoted in the comments furnished by the Unit, clearly stipulates that: “It appears that the civilian technicians who have been appointed w.e.f 15 Apr 2003 may not be eligible for promotion by the time the Govt. letter dated 20 May 2003 was forwarded vide Air HQ letter of 2 Jun 2003 is implemented in the unit. letter dated 20 May 2003 was forwarded vide Air HQ letter of 2 Jun 2003 is implemented in the unit. However, in case there is vacancy in higher grades by way of operation of the inter-grade ratio, the incumbents in the feeder category will also be eligible for relaxation as explained vide 2(d) of Air HQ letter dated 02 Jun 2003. Ofcourse such relaxation will be one-time while implementing the inter-grade ratio. However, it does not apply to newly appointed technicians.” 4. In view of above, the Unit may be directed to review their process adopted for implementation of re-structuring of Artisan cadre consequent to MoD letter dated 20 May 2003 and undertake the whole exercise de-nova, strictly in accordance with Govt., letter and clarification issued by Air HQ in this connection.” 4. The petitioners herein apprehending that their promotions and seniority will be affected. If the above order is implemented, filed Original Applications before the sixth respondent Tribunal, to call for the records pertaining to the second respondent impugned order vide their letter bearing No.Air HQ/23049/Artisan Policy/PC-4 dated 03.05.2012 and the consequential appointment of Department Promotion Committee vide 4th respondents' department routine order dated 30.10.2012 & 31.01.2013 and quash the same as illegal and to call for the records relating the De-Nova DPC 2004 concluded on 13.05.2013 and approved on 14.05.2013 and another DPC claimed to have been concluded on 10.03.2014 and declare the same as illegal and set aside. 5. The Tribunal, after considering the submissions made by the petitioners herein and the respondent Department, relying upon the judgment of the Hon'ble Supreme Court in Ram Chandra Tripathi vs. U.P.Public Services Tribunal ( 1994 5 SCC 180 ) has held that mistake committed by the Department could be rectified even without notice. 6. Relying upon the said judgment of the Hon'ble Supreme Court, in State of Punjab and Others vs. Rafiq Masih (White Washer) in C.A.No.11527 of 2014 dated 18.12.2014, the Tribunal has disposed of the Original Applications holding that the order of the second respondent dated 03.05.2012 referred in Annexure 7 cannot be set aside for the grounds set out in the application. Whereas, the respondent Department was directed to consider as to whether the applicants are similarly circumstanced like the personnel in Annexure A51 and if those persons in that Annexure were found treated favourably, then the same benefit shall be considered for being extended to the applicants also. 7. Aggrieved by the said order of the Tribunal, the present writ petition has been filed on the ground that the Tribunal failed to take note of the fact that the petitioners were promoted following the procedures laid down and holding the higher post for a long time and therefore, there should not be a unsettled as a consequence of the impugned order. Further, the order to convene de-nova DPC for the year 2004, in the year 2012, is barred by limitation and it will amount to re-open the issue settled long back in compliance with the Scheme framed under 6th Central pay commission. Apprehending reduction of salary to the tune of Rs.10,000/-, the petitioners press for quashing of the order passed by the second respondent dated 03.05.2012. 8. On reading the impugned order of the second respondent dated 03.05.2012, it could be clearly seen that after restructuring of the cadre of Artisan staff, these petitioners who were appointed as Skilled Artisans just a month back were promoted as Highly Skilled. This has occurred even before they could complete their probation period. Wrong understanding and wrong implementation of restructuring process pursuant to 5th Central pay commission has been realised after several representations and litigations. Hence, to rectify the error and to set at right the seniority issue, the Department thought fit to conduct de-nova DPC. When implementing a policy decision or a Scheme, if any error creeps in due to improper understanding of the provision, it is always open to the Policy Maker to undo or redo the exercise. The petitioners herein cannot prevent the Policy Makers to rectify the error on the sole ground that the claim has become stale. In Ram Chandra Tripathi vs. U.P.Public Services Tribunal (cited supra), the Hon'ble Supreme Court has observed as follows:- “9.After giving our anxious consideration to the facts and circumstances of the case and submissions made by the learned counsel for parties, it appears to us that the appellant was not made permanent in the post of Junior Engineer. In Ram Chandra Tripathi vs. U.P.Public Services Tribunal (cited supra), the Hon'ble Supreme Court has observed as follows:- “9.After giving our anxious consideration to the facts and circumstances of the case and submissions made by the learned counsel for parties, it appears to us that the appellant was not made permanent in the post of Junior Engineer. Although he was made permanent, as indicated herein before, such order was passed in complete violation of the interim order of injunction passed by the High Court in the writ proceedings which debarred the respondents from confirming any Junior Engineer. Since the order of confirmation of the appellant was made in violation of the injunction order, the mistake committed in passing the order of confirmation was corrected. In our view, in such circumstances, the appellant was not required to be given no occasion to take one view or the other in the matter of correction of the said mistake on the basis of the representation to be made by the appellant. The order of confirmation was pre se illegal and in violation of the order of injunction passed by the High Court and the same being invalid was got to be corrected, in any event.......” 9. The Tribunal has gone into the facts and the legal position and has correctly held that there is no legal infirmity in the order passed by the second respondent dated 03.05.2012. At the same time, being conscious of the fact that if there is going to be any change in salary to the detrimental to any of the persons who have already been enjoying, due to erroneous implementation of the Scheme, the monetary benefits what they have accrued earlier is protected by Tribunals order. Therefore, the Original Applications as well as the Writ Petition are premature and unsustainable. Therefore, this Court finds no reason to interfere in the order of the Tribunal. 10. In the result, Writ Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.