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2021 DIGILAW 921 (KER)

K. Savad v. Abdul Salam Koya C. T.

2021-10-07

A.BADHARUDEEN, ALEXANDER THOMAS

body2021
JUDGMENT : Alexander Thomas, J. Being aggrieved by impugned Ext.P3 final order dated 16.9.2020 as affirmed in the impugned Ext.P5 final order dated 27.11.2020 in Review Application No.8/2020 arising out of OA No.594/2020 rendered by the said Tribunal, the original applicant therein has approached this Court by filing the instant original petition under Articles 226 and 227 of the Constitution of India with the following reliefs: (see 15 of the paper book of this OP) "(1) Call for the records leading to the issue of Ext.P3 and P5 and set aside Ext.P3 and P5. (2) Direct the respondents 2 to 4 to ensure that the review Departmental Promotion Committee considers filling up of all the 3 vacancies in the category of Port Assistant Grade B/Signaller strictly in terms of the Recruitment Rules which provides for a "failing which" Clause for filling up the post of Port Assistant grade B/Signaller from among Multi Skilled Employee (Technical) in Grade pay of Rs.1800/-with 10 years' service and requisite educational qualification. (3) Direct the respondents to give effect to Annexure A1 in Ext.P1 in respect of the petitioners' promotion as Port Assistant Grade B/Signaller. 4. Any other further relief or order as this Hon'ble Court may deem fit and proper to meet the ends of justice." 2. Heard Sri. Vishnu S.Chempazhanthiyil, learned Counsel appearing for the petitioners in the OP/ contesting respondents R4 and R5 in the OA, Sri.T.C. Govindaswamy, learned Counsel appearing for R1 in the OP/sole applicant in the OA before the Tribunal and Sri.S.Manu, learned Senior Central Government Standing Counsel for Union Territory of Lakshadweep Administration appearing for official respondents 2 to 4 in the OP/R1 to R3 in the OA. 3. R1 herein (original applicant) has filed the instant Ext.P1, OA No.594/2019 before the Central Administrative Tribunal, Ernakulam Bench with the following prayers (see Page No.25 of this OP) "(a) Call for the records leading to the issue of Annexure A1, and quash the same to the extent it relates to respondents 4 and 5. (b) Direct the respondents to consider the applicant by convening a review DPC for promotion as Port Assistant Grade-B/Signaller, and direct further to promote the applicant as Port Assistant Grade B/Signaller with effect from the date of Annexure-A1 with all consequential benefits arising therefrom; (c) Award costs of and incidental to this Application. (b) Direct the respondents to consider the applicant by convening a review DPC for promotion as Port Assistant Grade-B/Signaller, and direct further to promote the applicant as Port Assistant Grade B/Signaller with effect from the date of Annexure-A1 with all consequential benefits arising therefrom; (c) Award costs of and incidental to this Application. (d) Pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances of the case;" 4. The Tribunal after hearing both sides has rendered Ext.P3 final order dated 16.9.2020 allowing the main pleas of the said OA, whereby it was ordered that the impugned Annexure A1 order of promotion granted in favour of contesting respondents 4 and 5 in the OA/petitioners in the present OP is set aside and the official respondents in the OA have been directed to conduct a review DPC and consider the name of the original applicant for promotion in the light of the findings made by the Tribunal in the said verdict within three months etc. The contesting respondents 4 and 5 in the OA/petitioners herein had preferred a review application as RA No.8/2020 before the CAT, Ernakulam Bench to impugn Ext.P3 final order in the OA. 5. The Tribunal after hearing both sides has rendered impugned Ext.P5 final order dated 27.11.2020 dismissing the above review application on the finding that there is no error apparent on the face of the record, as far as Ext.P3 final order is concerned and that no other ground for review are made out. It is thereafter that the contesting respondents 4 and 5 in the OA have preferred the instant original petition before this Court as above. 6. A brief reference to the factual details in this case would be pertinent. The original applicant/R1 herein had joined the Department of Port, Shipping & Aviation of Lakshadweep Administration as Multi-Skilled Employee (Technical) [MSE (T)] on 13.7.1993 and subsequently he was promoted to the next post of Tally Clerk w.e.f.12.5.2011 in the scale of pay of PB-I with Grade Pay of Rs.1900/-. The next promotion of the incumbent/original applicant, who was holding the post of Tally Clerk is to the post of Port Assistant Grade B/Signaller PB-I Grade pay of Rs.2400/-. The original applicant was denied promotion by the official respondents, whereas contesting respondents 4 and 5 in the OA/petitioners herein, who are juniors to the original applicant were promoted. The next promotion of the incumbent/original applicant, who was holding the post of Tally Clerk is to the post of Port Assistant Grade B/Signaller PB-I Grade pay of Rs.2400/-. The original applicant was denied promotion by the official respondents, whereas contesting respondents 4 and 5 in the OA/petitioners herein, who are juniors to the original applicant were promoted. From the pleadings and materials on record, it appears that the post of Tally Clerk is a promotion post of the lower feeder category post of [MSE (T)] having three years regular service in the grade with SSLC or equivalent qualification. Whereas, promotion to the next higher post of Port Assistant is made from two feeder categories: Tally Clerk, failing which from among [MSE (T)] hands with requisite experience. 7. The rule as existed at the relevant time regarding method of appointment to the post of Port Assistant Grade B are as follows : '(a) Tally Clerk having 8 years' regular service; (b) Failing which, [MSE (T)] with requisite experience with 10 years regular service in the grade having Plus Two or equivalent qualification from a recognized University' (emphasis supply) 8. The cut off date fixed by the DPC for determining the eligibility of the candidates concerned for promotion to the post of Port Assistant Grade B was 1.1.2019. The original applicant was having 7 years and 7 months of service in the post of Tally Clerk as on 1.1.2019. The DPC had taken up the stand that Tally Clerk to be eligible to be promoted as Port Assistant Grade B should have eight years regular service in the grade of Tally Clerk. Since the original applicant did not have eight years of regular service as Tally Clerk as on 1.1.2019, the DPC held that the original applicant is not qualified and eligible to be promoted to the post of Port Assistant Grade B. Accordingly, the DPC considered the case of the contesting respondents 4 and 5 in the OA/petitioners in the OP, since they were holding the post of MSE (T) and they had more than 10 years regular service in the grade of MSE (T) as on 1.1.2019. Accordingly, the DPC recommended the names of contesting respondents 4 and 5 in the OA for promotion to the post of Port Assistant Grade B and consequently, competent authority had issued Annexure A1 promotion order dated 6.8.2019 ordering the promotion of contesting respondents 4 and 5 in the OA to the post of Port Assistant Grade B 9. The Tribunal, after hearing both sides has held that the words “8 years regular service” appearing in Clause (a), above in the case of Tally Clerk is not qualified with the condition that the said eight years service should be in the Grade, viz. in the grade of Tally Clerk. Whereas the rule making authority has consciously stipulated in Clause (b) thereof that in the case of alternative method of appointment of MSE (T) hands such incumbents should have 10 years regular service in the Grade i.e. in the grade of MSE (T) and that where the recruitment rule making authority has intended that the regular service stipulated in the rule should be in the grade, they have stated so with all clarity and explicitly as in the case of Clause (b). Whereas in the case of Clause (a) for considering the personnel in the post of Tally Clerk for promotion as Port Assistant Grade B, all they need is only eight years regular service and that need not necessarily be eight years regular service as Tally Clerk, but could be eight years regular service in any grade or capacity. Hence, the Tribunal has held that the decision of the DPC in holding that the original applicant was not qualified to be promoted from category A, since he had altogether 26 years regular service in various grades was clearly illegal and wrong, and that the constitutional decision of the DPC in making promotion in favour of contesting respondents 4 and 5, who are holding the lower feeder category post of MSE (T) was clearly wrong, inasmuch as that the original applicant should have been treated as duly qualified and eligible to be promoted to the above post in question, since he fulfills the eligibility conditions and qualifications as on the cut off date of 1.1.2019. The Tribunal has declared the above said position and has ordered for quashment of impugned Annexure A1 promotion order and has consequently directed that the case of original applicant should be considered for promotion to the post of Port Assistant Grade B, since they are holding the post of Tally Clerk and had more than 26 years regular service as on 1.1.2019 in various grades. 10. It is this final verdict of the Tribunal as affirmed in Ext.P5 final order dismissing the review application that has been challenged by the contesting respondents 4 and 5 in the OA before us. 11. It is pointed out by Sri. Vishnu S.Chempazhanthiyil, learned Counsel appearing for the petitioners in the OP that Annexure R1 (a) proceedings dated 24.3.2009 and it's Annexure thereto given on Page No. 72 (a) of the paper book of this OP, would show that as per the new norms pursuant to the 6th Central Pay Commission recommendations ordered as per Annexure R1 (a), if an incumbent is to be promoted from a post of Grade Pay of Rs.1900/-to a post of higher grade of Rs.2400/-, then he should necessarily have at least 8 years regular service in the former grade and the said elementary aspect borne out in Annexure R1 (a) dated 24.3.2019 is not seen reflected in recruitment rules thereafter framed as per Annexure A3 recruitment rules dated 31.1.2011 by the respondent Lakshadweep Administration. It is also urged by him that the expression that the promotion from the grade of Tally Clerk in the grade pay of Rs.1900/-having 8 years regular service, without stipulating that the regular service should be in the grade pay of Rs.1900, may only be an inadvertent omission made by the rule making authority, as the above said norms in that regard as per Annexure R1 (a), more particularly, which schedule is an elementary aspect, which has been insisted by none other than the higher authority concerned namely, the Union Government in the Department of Personnel and Training, whereas Annexure A3 dated 31.1.2011 is subsequent recruitment rule framed by the respondent-Lakshadweep Administration subordinate to the Union Government. 12. 12. Taking note of the above said contention, we have passed an order on 15.3.2021 in this OP, and we have ordered the Lakshadweep Administration to give specific instructions to their learned Standing Counsel on this crucial aspect urged by learned Counsel appearing for the petitioner and we have also requested the learned Standing Counsel for the respondent-Lakshadweep Administration to make available a copy of the previous recruitment rules (recruitment rules prior to Annexure A3), relating to the post of Port Assistant Grade B/Signaller as it existed prior to Annexure A3 notification dated 31.1.2011 for the perusal of this Court. So far the respondent Lakshadweep administration has not taken a definite stand on the above said aspects urged by the learned Counsel for the petitioner. However, they have filed I.A.No.1/2021 along with an accompanying affidavit in the above OP praying that they may be permitted to make provisional promotion to the post of Port Assistant Grade B in compliance with the verdict of the Tribunal at Ext.P3 as affirmed in Ext.P5. 13. Sri.S.Manu, learned Senior Central Government Standing Counsel for the Lakshadweep Administration appearing for the official respondents has made available the copy of the previous recruitment rules, as notified in Gazatte of India dated 1.7.1987, containing the notification dated 22.4.1987 issued by the U.T. of Lakshadweep, Kavaratti Island etc. The schedule appended to said rules contained three categories, namely, Port Assistant Grade A, Cargo Superintendent and Port Assistant Grade B. The Schedule appended to the above said prior recruitment rules published in the gazette dated 1.7.1987, to the extent it relates to Category No.1, Port Assistant Grade A, Category No.3 Port Assistant Grade B/Signaller provide as follows: Sl.No. Name of Post No. of posts Classification Scale of pay Whether selection or non-selection post Age limit for direct recruitment Whether benefit of added years of service admissible under rule 30 of the Central Civil Service (Pension) Rule, 1972 Educational and other qualification require d for direct recruitment. Whether age and education al qualification prescribed for direct recruitment Period of probation Method of recruitment, whether by direct recruitment or by promotion or transfer and percentage of the vacancies to be filled by various method In case of recruitment, by promotion/transfer/deputation grades from which promotion/transfer to be made If a DPC exists, what is its composition. 1. Whether age and education al qualification prescribed for direct recruitment Period of probation Method of recruitment, whether by direct recruitment or by promotion or transfer and percentage of the vacancies to be filled by various method In case of recruitment, by promotion/transfer/deputation grades from which promotion/transfer to be made If a DPC exists, what is its composition. 1. Port Assistant Grade A 4(Four) General Central Service Group 'C' Non Gazetted Non Ministerial Rs.1350 Selection 30 1440 40 1800 EB -50 2200 Selection Between 18 years and 25 years (Relaxable for Government servants up to 35 years No Degree from a recognised University or equivalent No 2 years By promotion filing which by direct recruitment Port Assistant Grade B/Signal lers having minimum of 5 years service in the grade 1. Collector cum Development Commisioner (Chairman) 2. Secretary (Administration) (member) 3. Director of Agriculture (member) 4. Assistant Executive Engineer (Ele.member) 5.Settlement Officer (member Secretary) 3. Port Assistant Grade 'B' Signaller 4( Four) General Central Service Group 'C' Non- Gazetted Non-Ministerial Rs.1200 -30 -1540- EB -40-2040 Selection Between 18 years and 25 years (Relaxable for Government servants up to 35 years No Degree from a recognised Univers ity or equivalent No 2 years By direct recruitm ent failing which by transfer deputation. Transfer/deputation from the Ex-service men of Signal branch of Army/Airforce/ 14. From the reading of the aforesaid prior recruitment rules, it can be seen that for the post Port Assistant Grade B Signaller, the method of appointment is by direct recruitment, failing which by transfer or deputation. Therefore, it appears that the method of appointment to the post of Port Assistant Grade B/Signaller is significantly different from that as prescribed in subsequent recruitment rules at Annexure A3 for the same post. However, the prescription for the qualification and conditions in relation to the method of appointment to the higher category post of Port Assistant Grade A may throw light to the above controversy. The method of appointment to the post of Port Assistant Grade A as per the previous recruitment rules is by promotion, failing which by direct recruitment. In the case of recruitment by promotion etc. it is stipulated that Port Assistant Grade B/Signaller having minimum five years of service in the grade should be considered. The method of appointment to the post of Port Assistant Grade A as per the previous recruitment rules is by promotion, failing which by direct recruitment. In the case of recruitment by promotion etc. it is stipulated that Port Assistant Grade B/Signaller having minimum five years of service in the grade should be considered. Hence it is clear that the rule making authority has explicitly provided in the case of Category No.1, Port Assistant Grade A as per the previous rules that five years service should be in the grade of Port Assistant in the feeder category concerned. Whereas the subsequent recruitment rules at Annexure A3 dated 31.1.2011, as quoted above provide that the method of appointment to the instant post of Port Assistant Grade B/Signaller is by two methods, viz. method (a) and method (b) (supra). As per method (a), it is by appointment of promotion of Tally Clerk having 8 years regular service, failing which method (b) should resorted to, wherein MSE (T) hands with 10 years regular service in the grade having the requisite qualification should be considered for promotion. Thus, it can be seen that in the light of these aspects that the Tribunal has held that wherever the recruitment rule making authority, has intended that the regular service should necessarily be the grade of the same feeder category, it has explicitly stated so and that is so provided in Clause (b) of the present rules, whereas, the insistence that 8 years regular service for Clause (a) should necessarily be in the same grade is conspicuously absent in the case of method (a). In the light of these aspects the Tribunal has held that as far as method (a) appointment is concerned the Tally Clerk need to have only 8 years of regular service as on the cut off date and the said eight years regular service can be in any grades or capacities, but so long as it is regular service and that the original applicant was having 26 years of regular service in various grades as on that day, though he did not have 8 years regular service in the grade of Tally Clerk as on that date. The above said interpretation placed by the Tribunal appears to be a reasonably plausible view of the matter, in exercise the power of judicial review. The above said interpretation placed by the Tribunal appears to be a reasonably plausible view of the matter, in exercise the power of judicial review. It is all the more so, in the light of the previous recruitment rules notified on 1.7.1987. The contention of the petitioners on the basis of Annexure Ra (1) dated 24.3.2009 cannot be brushed aside. But it has to be borne in mind that inspite of the recommendations in the executive order as per Ext.R1 (a) dated 24.3.2009, the statutory recruitment rules framed subsequently as per Annexure A3 on 31.1.2011 has provided as follows: 12 Grade from which recruitment by promotion/deputation/transfer/short-term contract/re-employment is to be made Promotion: from the grade of Tally Clerks in Grade Pay of Rs.1900 having 8 years regular service failing which MSE (T) in the Grade Pay of Rs.1800 with 10 years regular service in the grade possessing minimum general educational qualification of a pass in Plus 2 or equivalent from a recognized University/Board Deputation: Officers of Central Govt. Union Territory working in analogous post possessing the qualification prescribed in Col.12 15. The prescriptions in Annexure A3 statutory rules as above, may be in deviance from the recommendations made as per an executive order at Annexure Ra(1) 24.3.2009. Since Annexure A3 is a statutory rule, and since the above said conditions as interpreted by the Tribunal cannot be said to be per se unreasonable or perverse and since it is certainly a reasonably plausible view of the matter, we are not in a position to interfere with the impugned verdict of the Tribunal in this matter. We have cautioned and reminded ourselves that this jurisdiction is mainly in the province of judicial review and judicial superintendence, especially in the task of supervision to ensure that the Tribunals remain within the bounds of law. The issue is quite nuanced and subtle and merely because another reasonable view may be possible, is no ground for this Court sitting in judicial review and judicial superintendence to upturn the impugned verdict of the Tribunal which is a court of first instance to exercise the powers under Article 226 of the Constitution of India as envisaged in Article 323A of the Constitution of India r/w the provisions contained under the Administrative Tribunals Act, 1985. Therefore, we have to keep our hands off the matter like this and uphold the decision making process of the Tribunal, and not to interfere with the final order of the Tribunal. Hence we are not in a position to judicially interfere in this matter. Accordingly, the original petition will stand dismissed.