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2022 DIGILAW 2648 (RAJ)

Union of India, through the Secretary, Ministry of Defence, New Delhi v. Bhartendu Gaur S/o Shri Dev Saran

2022-10-20

FARJAND ALI, SANDEEP MEHTA

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JUDGMENT : SANDEEP MEHTA, J. 1. These three writ petitions involve common questions of facts and law and hence, the same have been heard and are being decided together by this single judgment. 2. The Union of India, Ministry of Defence, has approached this Court through these writ petitions filed under Article 227 of the Constitution of India for questioning legality of order dated 10.01.2020, D.B. Civil Writ Petition No. 3840/2021 (Union of India and Others vs. Bhartendu Gaur), order dated 20.12.2019, D.B. Civil Writ Petition No. 3857/2021 (Union of India and Others vs. LRs. of Sampat Lal Chhimpa) and order dated 10.01.2020, D.B. Civil Writ Petition No. 3847/2021 (Union of India and Others vs. Bharat Kumar and Others), passed by the Central Administrative Tribunal, Bench Jodhpur, accepting the original applications filed by the respondents. 3. Brief facts relevant and essential for disposal of the writ petitions are noted herein-below: Details of appointment and promotion of the respondents under the respondent-The Commander Works Engineer (Air Force), Bikaner, are mentioned herein-below in a tabular form for the sake of ready reference: S. No. Name Post Date of Appointment Promotion/Direct appointment 1. Bhartendu Gaur (A) Initially appointed on the post of DES 21.09.1983 Direct Appointment (B) Redesignated to the post of DES to Fitter General Mechanic (SK) without any change in payscale. 06.07.1994 1st ACP granted on 09.08.1999 on completion of 12 years of service. Fitter General Mechanic (HS II) 08.04.2002 Promoted from the post of Fitter General Mechanic (SK) 2nd ACP granted on 21.09.2007 on completion of 24 years of service. Modified ACP to MACP w.e.f. 01.09.2008 (No benefit granted to the respondent writ petitioner) 2. Sampat Lal Chhimpa (A) Initially appointed on the post of DES 30.03.1987 Direct Appointment (B) Redesignated to the post of DES to Fitter General Mechanic (SK) without any change in payscale. 06.07.1994 Fitter General Mechanic (HS II) 23.03.1995 Promoted from the post of Fitter General Mechanic (SK) Fitter General Mechanic (HS I) 31.01.2000 Promoted from the post of Fitter General Mechanic (HS II) Post of HS II and HS I were merged into category of HS w.e.f. 01.01.1996 Not entitled to grant of 1st and 2nd ACPS because of two promotions were given subsequently. Modified ACPS to MACPS w.e.f. 01.09.2008 (No benefit granted to the respondent writ petitioner) 3. Modified ACPS to MACPS w.e.f. 01.09.2008 (No benefit granted to the respondent writ petitioner) 3. Bharat Kumar (A) Initially appointed on post of Motor Pump Attendant 22.02.1988 Direct Appointment (B) Post of Motor Pump Attendant was redesignated as Pump House Operator and further redesignated as Fitter General Mechanic (SK) 06.07.1994 (C) Promoted to the post of FGM (HS II) 02.08.1995 Promoted from the post of FGM (SK) (D) Promoted to the post of FGM (HS I) 31.01.2000 Promoted from the post of FGM (HS II) Not entitled to grant of 1st and 2nd ACP because of two promotions were given subsequently. Modified ACPS to MACPS w.e.f. 01.09.2008 (No benefit granted to the respondent writ petitioner) 4. Laxmi Narayan (A) Initially appointed on post of Motor Pump Attendant 24.02.1988 Direct Appointment (B) Post of Motor Pump Attendant was redesignated as Pump House Operator and further redesignated as Fitter General Mechanic (SK) 06.07.1994 (C) Promoted to the post of FGM (HS II) 26.06.1995 Promoted from the post of FGM (SK) (D) Promoted to the post of FGM (HS I) 07.01.2000 Promoted from the post of FGM (HS II) Not entitled to grant of 1st and 2nd ACP because of two promotions were given subsequently. Modified ACPS to MACPS w.e.f. 01.09.2008 (No benefit granted to the respondent writ petitioner) 5. Kishan Ram (A) Initially appointed on the post of Peon 25.05.1990 (B) Post of Peon was reclassified as Motor Pump Attendant 21.01.1984 (C) Post of Motor Pump Attendant was re-designated as Pump House Operator and further redesignated as Fitter General Mechanic (SK) 06.07.1994 (D) Promoted to the post of FGM (HS II) 02.08.1995 Promoted from the post of FGM (SK) Not entitled to grant of 1st and 2nd ACP because of two promotions were given subsequently. Modified ACPS to MACPS w.e.f. 01.09.2008 (No benefit granted to the respondent writ petitioner) 4. Shri Sampat Lal Chhimpa promoted to the post of HS Grade-II w.e.f. 22.03.1995, was further promoted as HS Grade-I w.e.f. 31.01.2000. The posts of HS Grade-II and HS Grade-I were merged and redesignated as HS w.e.f. 01.01.1996 in the Pay Scale of Rs. 4,000-6,000/-. After the recommendations of the 5th Central Pay Commission, the cadre of Artisan Staff was restructured vide letter dated 20.05.2003. Under restructuring, the post of MCM (Master Crafts Man) was treated as HS and placement of these employees working as HS, was made as MCMs w.e.f. 01.01.1996. 4,000-6,000/-. After the recommendations of the 5th Central Pay Commission, the cadre of Artisan Staff was restructured vide letter dated 20.05.2003. Under restructuring, the post of MCM (Master Crafts Man) was treated as HS and placement of these employees working as HS, was made as MCMs w.e.f. 01.01.1996. The 6th Central Pay Commission was introduced in the year 2008 and was made effective from 01.01.2006. The respondents adopted the MACP Scheme issued by the DOPT vide OM dated 19.05.2009. 5. The Employer Authority after placing the respondent employees in the cadre of MCM, treated them as having availed three promotions and thus, the benefit of 3rd Financial Upgradation under the MACP Scheme was denied to them. Aggrieved thereby, the respondents herein approached the Central Administrative Tribunal by way of the Original Applications which have been allowed by the orders dated 10.01.2020, 10.01.2020 and 20.12.2019, which are assailed in these writ petitions. 6. Shri Muktesh Maheshwari Advocate representing the appellant Union of India, drew the Court’s attention to the clarification letter dated 14.06.2010 issued by the Government of India, Ministry of Defence and urged that it is clearly stipulated in clause No. 4 (i) of this letter that the post of Master Craftsman (MCM), shall be part of hierarchy and placement of Highly Craftsman of Highly Skilled Grade-I (HS Grade-I) in the grade of Master Craftsman, will be treated as a promotion. Thus, he contended that the respondents have already availed three promotions and hence, they are not entitled to the benefit of the Financial Upgradation under the MACP Scheme. He placed reliance on the Hon’ble Supreme Court judgment in the case of Union of India vs. R.K. Sharma and Others, (2021) 5 SCC 579 particularly the observations made at Para-11 wherein it was held that the employees are entitled for Financial Upgradation under MACPS only to the next Grade Pay and not to the Grade Pay of next promotional post. He submitted that the order passed by the Tribunal amounts to granting benefit of Financial Upgradation to the respondent employees on the Grade Pay of the next promotional post and thus, the impugned orders are bad in the eyes of law and deserve to be reversed. 7. He submitted that the order passed by the Tribunal amounts to granting benefit of Financial Upgradation to the respondent employees on the Grade Pay of the next promotional post and thus, the impugned orders are bad in the eyes of law and deserve to be reversed. 7. Per contra, Shri S.K. Malik, learned counsel representing the respondents, drew the Court’s attention to the order dated 10.05.2018 passed by the Division Bench of this Court in D.B. Civil Writ Petition No. 6061/2018 (Union of India and Others vs. Girdhari Lal Saini and Another) wherein, it was held that merger of the post of HS Grade-II into HS Grade-I, would require one promotion to be ignored on account of merger of the Pay Scales of the upgraded posts as recommended by the 6th Central Pay Commission. Shri Malik urged that this order of the Division Bench was challenged by the Union of India by filing a SLP before the Hon’ble Supreme Court which has been dismissed. He also drew the Court’s attention to the explanatory Note dated 28.08.2009 issued by the Ministry of Defence as per which, the HS workers have been placed at the Feeder category and the next promotional post is of Master Craftsman. No further promotional avenue is available to Master Craftsman. He submitted that the Department, while issuing the MACP Scheme has issued an illustrative chart wherein, the officer who is placed in the Grade Pay of Rs. 4,200/- on completion of 30 years of service, would get the benefit of 3rd ACP in the Grade Pay of Rs. 4,600/-. Shri Malik thus, submits that the judgment in the case of Union of India vs. R.K. Sharma and Others (supra), helps the cause of the respondents because, no promotional avenue is available to the Craftsmen given placement as MCMs and resultantly, the Financial Upgradation of such Craftsmen has to be made as per the MACP Scheme guidelines. He urged that the view taken by the Tribunal while accepting the original applications, is absolutely just and legal and the writ petitions deserve rejection. 8. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the impugned orders and the material placed on record. 9. It is admitted that the respondent employees were initially appointed as Diesel Engine Static (DES) (skilled). 8. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the impugned orders and the material placed on record. 9. It is admitted that the respondent employees were initially appointed as Diesel Engine Static (DES) (skilled). Though initially, they were given two promotions as HS (Highly Skilled) Grade II and then HS Grade I but later on, these two posts i.e. HS Grade II and HS Grade I were merged and re-designated as HS w.e.f. 01.01.1996. With the merger of the posts, one promotion would have to be ignored as has been held by Division Bench of this Court in the case of Union of India and Others vs. Girdhari Lal Saini and Another (supra) which view has been affirmed by Hon’ble the Supreme Court. The respondent employees were given placement in the Grade of MCM pursuant to restructuring of the cadre of Artisan Staff. No doubt, MCM is a promotional post from the post of HS but as one of the earlier promotions was required to be ignored after merger of the two posts as referred to supra, it is clear that the respondents had been given only two promotions, first, from DES to HS and the second, from HS to MCM. 10. Resultantly, by virtue of MACP Scheme, 2009, the respondents were definitely entitled to the benefit of 3rd Financial Upgradation after completion of ten years’ service on the post of MCM. The fervent contention of Shri Maheshwari for assailing the direction given by the Tribunal to this office was that the same is in conflict with the observations made by Hon’ble the Supreme Court in the case of R.K. Sharma (supra). He urged that the Grade Pay of Rs. 4,600/- which has been granted by the Tribunal to the respondents, is the Grade Pay of the next promotional post. We find this argument of Shri Maheshwari to be fallacious. It is not in dispute that the employees placed as MCMs do not have any further promotional opportunity in the cadre and the post of MCM is a stagnation post. There is no merit in the contention of the petitioners that Grade Pay of Rs. 4,600/- is applicable to the next promotional post from the post of MCM because no such promotional avenue is available in the rules. There is no merit in the contention of the petitioners that Grade Pay of Rs. 4,600/- is applicable to the next promotional post from the post of MCM because no such promotional avenue is available in the rules. Thus, the explanation issued by the Government of India, Ministry of Defence in the letter dated 14.06.2010 is of no avail to the petitioners. As against this, the illustrations provided under the MACP Scheme, 2009, attention whereto was drawn by Shri Malik, learned counsel representing the respondent employees, clearly manifests that the employee who gets second promotion in the Grade Pay of Rs. 4,200/- on completion of 23 years of service, would be entitled to 3rd ACP on completion of 30 years of service and such upgradation would be in the Grade Pay of Rs. 4,600/-. This precisely was decided by the Tribunal while accepting the Original Applications submitted by the respondents. 11. Having appreciated the entire material available on record, we are of the firm opinion that the conclusions drawn by the Tribunal in the impugned order accepting the Original Applications of the respondents are unimpeachable as the same are in consonance with the MACP Scheme, benefit whereof was rightfully sought for by the respondents. 12. The impugned orders do not suffer from any infirmity, illegality or perversity whatsoever, warranting interference in the supervisory writ jurisdiction of this Court. 13. Hence, the writ petitions fail and are dismissed as being devoid of merit. 14. A copy of this order be placed in each file.