Himanshu Shrivastava vs Union Of India & Ors.

By Smt. Mallika Arya, JM.-

By way of the present original application, the applicant has prayed to set aside the order dated 20.10.2009 (Annexure A-2) whereby the promotion order dated 20.11.2008 of the applicant has been cancelled. Prayer has also been made to set aside the O.M dated 16.10.2015 (Annexure A-3) whereby a cut-off date has been prescribed for fixation of pay on promotion after implementation of 6^th CPC.

The facts of the case, in brief, are that the applicant while working as Charge Man Gr. II was promoted to the post of the Charge man Grade I on 20.11.2008 (Annexure A-1) and he was given with the benefit of revised pay in terms of the provisions contained in Fundamental Rule 22(1)(a)(1). Later on, pursuant to the recommendation of the sixth pay commission, both the posts of Charge man Grade II (non-technical) and Charge man Grade 1 (non technical) were merged w.e.f. 01.09.2008. Therefore, the applicant was served with a show cause notice dated 12.9.2009 as his promotion to the post of Charge Man Gr. I became inconsequential. The applicant filed a reply to the said show cause notice. Thereafter, the respondents vide order dated 20.10.2009 have cancelled the promotion of the applicant.

The learned counsel for the applicant has submitted that since the recommendation of the 6^th Pay Commission was only to the extent of merger of the grade pay of the said posts, therefore, the action of the respondents in cancelling the promotion order of the applicant is arbitrary, unjust and unlawful. The learned counsel for the applicant has also submitted that the respondents have not considered the points raised by the applicant in his representation and cancelled the promotion order of the applicant by a single stroke of pen.

Learned counsel for the applicant has further contended that the respondents have issued an Office Memorandum 16.10. 2015 (Annexure A-3) whereby they have prescribed a cut-off date to protect the promotion which took place in the pre-revised pay structure i.e. between 01.01.2006 and 29.8.2008 and the pay fixation of such employees has been done in terms of FR 22(1)(a)(1). This action of the respondents is arbitrary and unjust as the applicant got promoted as Charge man Grade Il in the pre revised pay structure. Therefore, the applicant is also entitled to protection at par with the employees who were promoted between 01.01.2006 to 29.8.2008 and were given the benefit of pay protection and also that of promotion. Therefore impugned action of the respondents in prescribing the cut-off date as 29.8.2008 is arbitrary, unjust, and unlawful and deserves to be set aside.

The respondents have contested the OA and have filed their reply. Referring to the contents of the reply, the learned counsel for the respondents has stated that after receipt of the Government decision to accept recommendation of the 6th CPC regarding merger of grade pay and pay band with respect to the posts of Chargeman Gr-II & Chargeman Gr -I, the promotion of the applicant has become inconsequential. Therefore, pursuant to the orders issued by the Ordnance Factory Board on 01.09.2009 (Annexure R-1), the promotion orders of the applicant have been cancelled vide order dated 20.10.2009 (Annexure R-2) and the reasons for cancellation was duly intimated to the applicant vide letter dated 20.10.2009. The learned counsel for the respondents has further submitted that there is no illegality or arbitrariness in fixing the cut-off date and hence prayed that the OA may be dismissed.

The applicant has filed rejoinder in which nothing new has been added.

We have heard both the learned counsel for the parties and perused the pleadings on record. We have also considered the rival contentions.

It is not disputed that the applicant was promoted to the post of Charge Man Gr. I vide order dated 20.11.2008. However, the same has been cancelled due to the merger of grade pay and pay band in respect of the posts of Chargeman Gr-II & Chargeman Gr –I. The said merger has been made effective and all promotions which took place in pre-revised structure between 01.01.2006 and 29.09.2008 when the CCS (RP) Rules 2008 were notified have been protected. Since the applicant was promoted vide order dated 20.11.2008 i.e. after the effective date of merger of posts, therefore, pursuant to the letter dated 01.09.2009 (Annexure R-1), his promotion to the post of Charge Man Gr. I has been cancelled having become inconsequential. The applicant has nowhere pleaded or raised any grievance as to whether after cancellation of his promotion order, his pay has been affected or any adverse financial implication has occurred. The O.M dated 16.10.2015 clearly envisaged that it was only with respect to the promotions which took place in pre-revised pay structure i.e. between 01.01.2006 and 29.08.2008 and on account of merger of posts of Charge Man Gr. –II and Charge Man Gr-I into a single grade /post.

In view of the above, we are of the opinion that since the promotion of the applicant to the post of Charge Man Gr. I took place on 22.11.2008 i.e. after the cut-off date, the same has become insignificant. Hence, we do not find any ground for interference with the impugned orders. Accordingly, the Original Application No. 1117/2017 is dismissed.

There will be no order as to costs.