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Judgment
A.K. Bishnoi, Member (A)
The present OA has been filed by the applicants seeking the following reliefs:-
"(i) To call for the records of the case and allow this original application.
(ii) To quash and set aside the impugned advertisement at Annexure A-1 to this application.
(iii) To direct the respondents to convene the requisite DPC for promotion to the merged post of Draughtsman Gr.I (Proposes Senior Draughtsman) in the Grade Pay of Rs. 4200/- and consider the applicants for promotion.
(iv) To direct DOP&T to approve proposed amendment in RR"s of Draughtsman Gr-I (proposed Designation Senior Draughtsman) submitted by Navy in January, 2015 without waiting for preparation of model RR"s for single post as RR"s of lower post already amended.
(v) To pass such other and further orders which the Hon"ble Tribunal deem fit and proper in the existing facts and circumstances of the case.
(vi) To allow the Original Application with cost."
Briefly the facts of the case, as stated by the applicants, are that All India Naval Draughtsman Association represents Draughtsman and all applicants, working as Draughtsman in different branches in the Ministry of Defence/Navy. Earlier, their hierarchy for the Draughtsman in the Navy was as below:-
Sl. No
Designation
Scale of Pay
Category as per RRs
1
Draughtsman Gr-III
Rs. 4000-6000
Group "C"
2
Draughtsman Gr-II
Rs.5000-8000
Group "C"
3
Draughtsman Gr-I
Rs.5500-9000
Group "B" Non Gazetted
2.1 After the implementation of the recommendations of the 6th Central Pay Commission, Draughtsman Grade-I and Grade-II were merged w.e.f. 01.01.2006 and became Senior Draughtsman vide order dated 05.04.2010. After merger, the position emerges as follows:-
Sl. No
Designation
Revised Scale of Pay of 6th CPC
Grade Pay
Category as per RR"s
1
Draughtsman
Rs. 5200-20200 (Pay Band-I)
Rs.2400/-
Group "C"
2
Draughtsman Gr-I (Proposed Senior Draughtsman)
Rs.9300-348000 (Pay Band-2)
Rs. 4200/-
Group "B" Non-Gazetted
2.2 Subsequently, the Navy issued the order of merger of these cadres through order dated 21.12.2010. However, despite the lapse of substantial time, the Recruitment Rules (RRs) of Draughtsman after the merger are still not finalised.
2.3 The Navy then notified for recruitment of 486 post of Draughtsman with Grade Pay of Rs.4200/- Group "B". It has been submitted that the qualifications prescribed in the advertisement for this post are lesser than of the existing Draughtsman, which is the feeder cadre of Draughtsman Grade-I (now re-designated as Senior Draughtsman).
2.4 The applicants have challenged this Advertisement for Draughtsman Grade-II mainly on the following grounds:-
i) After the merger of Draughtsman Grade-I & Grade-II w.e.f. 01.01.2006, Draughtsman Grade-II does not exist and it has been re-designated as Senior Draughtsman with Grade Pay of Rs. 4200/-.
ii) After the merger as per DoPT memorandum dated 24.03.2009 DPCs have to be constituted for the higher/highest grades for the merged grade. The applicants, who were working as Draughtsman (earlier Draughtsman Grade-III), are the feeder cadre for the post of this merged cadre, in which the higher merged grade is that of Draughtsman Grade-I. They should have been considered for promotion, failing which the option to fill up the post by deputation should have been explored.
The respondents in their counter while admitting the factual situation regarding merger of Draughtsman Grade-I and Grade-II have submitted that the RRs for Senior Draughtsman have not yet been finalized. Out of the sanctioned strength of 1038, 486 posts of Senior Draughtsman are lying vacant. As per the existing RRs, there is no provision of direct recruitment for Draughtsman Grade-I. Since the method of promotion and deputation has failed, the only way to fill up the vacancies was to go for direct recruitment by following the Recruitment Rules of erstwhile Draughtsman Grade-II. They have cited difficulties that would result in not filling up of the vacancies.
The applicants have filed rejoinder, more or less reiterating the points raised in the main OA.
We heard the learned counsel for the applicants and the respondents.
Learned counsel appearing on behalf of the applicants submitted that the respondents have invited applications for recruitment to the post of Draughtsman Grade-II in the Mechanical/Construction and the Electrical Disciplines while there is no Grade-II now after merger with Grade-I. However, the pay structure that has been given in the advertisement is that which is applicable for the merged cadre of Draughtsman Grade-I and Grade-II (now re-designated as Senior Draughtsman). If the respondents are following the existing RRs, as the RRs have not been amended after the merger then they should have as per standing instructions followed the procedure which is laid down for Draughtsman Grade-I and as per this direct recruitment is not allowed. The qualifications which have been prescribed are also that of the erstwhile Grade-II largely. Here also certain changes have been inexplicably made. Whereas for the erstwhile Grade-II the relaxation in age for Government servants was upto the age of 40 years in case of general candidates and 45 years in case of SC/ST candidates the advertisement mentions it as 05 years. It is contended that in the absence of valid RRs, recruitment cannot be made as per the advertisement issued in the Employment News of 30th July-5th August, 2016.
The learned counsel for the applicants has also placed on record the Clarifications issued by IHD MoD (Navy), Dte. of Civilian Manpower Planning and Recruitment regarding recruitment of merged posts.
(a) The relevant portion of the Communication dated 10.02.2015 reads as under:
"3.......It needs to be ensured that all essential/desirable qualifications of the higher posts of the posts so merged, are considered for the recruitment process. Additionally, the minimum educational qualification for any post is to be specified as Matriculation (10th Class Pass) in the Advertisement."
(Emphasis supplied)
(b) The relevant portion of the communication dated 06.04.2015 regarding advertisement for vacant posts after merger reads as under:
"1. It has come to the notice of IHQ/MoD (Navy) that while advertising for various posts for recruitment, especially for posts that have been merged, the column for essential and desirable qualifications is strictly not as per the Statutory Recruitment Order (SRO)/RRs/guidelines from time to time.
The qualifications for the posts are mentioned in each SROs. SROs being statutory in nature, no administrative order can override the same.
In case of merger of one or more posts, the SROs of higher post will be applicable."
(Emphasis supplied)
Learned counsel for the respondents argued that because of the large number of existing vacancies it is necessary to start the process of direct recruitment as the other avenues of promotion and deputation have not succeeded for filling up of the vacancies.
In support of the act of the respondents towards filling up of the vacancies in the absence of amended RRs, the learned counsel for the respondents also referred to Part-II Frequency of Meetings of OM dated 08.09.1998 of DoP&T, the relevant portion of which reads as under:
"Holding of DPC meetings need not be delayed or postponed on the ground that Recruitment Rules for a post are being reviewed/amended. A vacancy shall be filled in accordance with the recruitment rules in force on the date of vacancy, unless rules made subsequently have been expressly given retrospectively effect. Since amendment to Recruitment Rules normally have only prospective application, the existing vacancies should be filled as per the Recruitment Rules in force."
The learned counsel for the respondents relied on the decision of the Hon"ble Apex Court in Union of India & Others v. Somasundram Viswanath & Others, [AIR 1988 SC 2255] on the issue of conflict between executive instructions and rules made under Article 309 and law made by the appropriate Legislature.
The learned counsel for the private respondents referred to the order of the Hon"ble Supreme Court in the case of Nagpur Improvement Trust v. Yadaorao Jagannath Kumbhare & Others, [(1999) 8 SCC 99] and drew attention to the portion as reproduced below:
"8.....In this view of the matter and concededly, no rules having been framed by the State Government in exercise of power under Section 21 of the Act, the Trust/Board was fully empowered to take administrative decisions in the matter of appointments and promotions to different posts including the posts requiring professional skill and consequently the resolution of the Board taken in accordance with sub-section (2) of Section 22 of the Act deciding to promote the employees to the post of Assistant Engineer cannot be said to be invalid or inoperative. The High Court, therefore, in our view fell in error to hold that the appointments made to the posts of Assistant Engineer are invalid in law. He has also contended that the OA is not maintainable since multiple reliefs have been sought.
We have carefully gone through the pleadings and documents on record and also the arguments advanced by the learned counsel for both sides.
It is an admitted fact that Draughtsman Grade-I and Grade-II after having merged with effect from 01.01.2006 were re-designated as Senior Draughtsman with Grade Pay of Rs.4200/- and Draughtsman Grade-III has been re-designated as Draughtsman in the Grade Pay of Rs.2400/-. It is also admitted that fresh RRs after the merger have not yet been finalized. On the issue of RRs in the case of merger of posts it has been settled by IHQ MoD (Navy), Dte. of Civilian Manpower Planning and Recruitment through Clarification dated 10.02.2015 that pending revision of RRs all essential/desirable qualifications of the higher posts of the posts so merged. Their communication dated 06.04.2015 also makes it clear that in case of merger of one or more posts, the SROs of higher post will be applicable. The DoPT Memorandum dated 24.03.2009 also mandates that:
"Where two or more scales have been merged, higher/highest grade will be the DPC for the merged grade."
Though this is not a case of promotion the principle remains the same.
As regards the decision of the Hon"ble Apex Court cited by the learned counsel for the respondents in the case of Union of India & Others v. Somasundram Viswanath & Others (supra), it lays down the larger position of law, which is not a subject matter in the instant OA. As regards the decision in the case of Nagpur Improvement Trust (supra), it is clear that the facts and circumstances of the case were quite different from those in the present matter. Hence no justification can be provided by the respondents in favour of the action by relying on this judgment.
On the issue of multiple reliefs, we find that this argument is not well founded as the reliefs that have been sought in the OA form part of the same pack of grievances which are intrinsically linked.
In the light of the above, it is evident that the respondents have gravely erred in inviting applications through the advertisement published in the Employment News of 30th July-5th August, 2016 under the caption "Draughtsman Grade-II" when the said Grade-II was no longer in existence having already been merged with Grade-I and the merged grade being re-designated as Senior Draughtsman. While doing so, they have mentioned that it is now Senior Draughtsman and the pay structure has also been indicated as that of Senior Draughtsman. However, the qualifications that have been prescribed are similar to that for the erstwhile Draughtsman Grade-II. Thus, it is a strange case of picking up some aspects of the post-merger scenario and mixing them with some from the pre-merger situation. Even while doing so, instead of following the procedure as was prescribed for the erstwhile Draughtsman Grade-I, being the higher grade, as has been clarified in Para-7 above, it has been aligned to that for the erstwhile Draughtsman Grade-II, both in terms of method of recruitment as also qualifications. It may be noted that the RRs for the erstwhile Draughtsman Grade-I prescribed the method of recruitment as promotion failing which by deputation and there was no scope for direct recruitment as is sought to be done through the process advertised.
In the circumstances, the OA is allowed to the extent that the impugned advertisement dated 30th July-5th August, 2016 is quashed and set aside. However, this order shall not preclude the respondents from filling up the Senior Draughtsman Grade Posts, by following the RRs of Draughtsman Grade-I, pending finalisation of the RRs for Senior Draughtsman Grade, if they are advised so or the circumstances warrant.
All pending MAs stand disposed of accordingly. No costs.