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Judgment
Per : Hon’ble Mr Justice Rameshwar Vyas
The applicant is aggrieved by the order of revised restructuring of MES Artisan Staff dated 25.11.2016 (Annex. A/1) whereby the date of his placement in MCM grade has been revised from 01.01.1996 to 20.05.2003.
Facts of the case in brief are as under:
The applicant was initially appointed as a tradesman in the skilled category [SK] under the respondents on the post of Motor Pump Attendant [MPA] w.e.f. 01.02.1984. The post of MPA was subsequently redesignated as Pump House Operator [PHO]. Thereafter, pursuant to Ministry of Defence letter dated 06 July, 1994, total 08 trades in MES, i.e. PHO, Driver Engine Static [DES], Mechanic Petrol & Diesel Engine [MPDE], Driver Mobiole Plant [DMP], Operator Earth Moving Machinery [OEMM], Operator Pneumatic Tools [OPT], Boiler Attendant [BA] & Lift Mechanic [LM] were re-designated as Fitter General Mechanic [FGM] . After merger, the trade of the applicant was known as FGM. Thereafter, the applicant was promoted to the post of FGM Gr. II w.e.f. 21.04.1995 and FGM Grade I w.e.f. 08.08.1998.
On the recommendations of 5th Central Pay Commission, the cadre of HS-I and HS-II was merged as HS [Highly Skilled] vide order dated 20.05.2003 (Annex. A/3) issued by Ministry of Defence w.e.f. 01.01.1996. As per restructuring, a total three-grade structure was formed, i.e. Skilled [SK], Highly Skilled [HS} and Master Craftsman [MCM]. The Grade structure of the SK and HS categories was divided in the ratio of 65:35. The selection from HS grade to the grade of MCM was 10% of HS Cadre, i.e. 10% of 35% of HS post]. The placement of the individuals in the post resulting from the restructuring and ratio revision was made effective w.e.f. 01.01.1996 in relaxation of the conditions, if any, i.e. trade test etc. as a one-time measure. The placement of MCM was continued to be considered HS grade for promotion to the post of Chargemen and placement under this category was not treated as promotion.
Thereafter, vide corrigendum dated 27.03.2006 (Annex. A/4), it was clarified that “the individuals who got promotion by passing trade test etc. between 1.1.1996 to 19.5.2003 would be en-bloc senior to those who got promotion as result of restructuring of cadre in relaxation of conditions of passing trade test etc.”
Upon perusal of copy of order dated 14.02.2005 rendered by this Bench in OA No. 104/2004 filed by the applicant and others reveals that applicants were amongst the persons who passed trade test between 1.1.1996 to 19.5.2003 and were aggrieved by seniority list ignoring their seniority. The aforesaid OA was dismissed against which the applicants filed Writ Petition No. 1621/2005 before Hon’ble Rajasthan High Court which came to be allowed vide judgment dated 11.08.2005 in terms of the judgment passed in Writ Petition No. 1992/2005 being similar in nature.
Thereafter, vide order dated 26.02.2007 (Annex. A/2), total 22 FGM (HS) were placed in the grade of MCM w.e.f. 01.01.1996. It is mentioned in the order that with the issue of these placement, the direction issued by Hon’ble High Court of Rajasthan on 11.08.2005 has been complied with. After placement of the applicant as MCM w.e.f. 01.01.1996 by order dated 26.02.2007, another order on 25.11.2016 (Annex. A/1) has been passed whereby the date of placement of the applicant as MCM has been revised from 01.01.1996 to 20.05.2003.
Being aggrieved with the above revised date of placement as MCM, the applicant has come before this Tribunal with the case that no opportunity of hearing was given to him before passing of such order. By virtue of the impugned order, his service has been adversely affected not only by causing monetary loss but also by causing loss of seniority as he became junior to the employees who were working under him as junior. The third ground raised by the applicant is no reason was assigned for superseding the original order dated 26.02.2007 of the respondents. It is further averred that impugned order amounts to contempt of court as at one point of time the respondents passed the order dated 26.02.2007 to escape from contempt proceedings and now they changed the date of promotion without permission of Hon’ble Court. It is also the case of the applicant that the respondents cannot be allowed to unsettle the settled position.
With the above case, the applicant has prayed to quash the order dated 25.11.2016 (Annex. A/1) qua him and seeks direction to the respondents to treat him as promoted on the post of MCM w.e.f. 01.01.1996.
As per reply filed by the respondents, the case of the applicant alongwith similarly placed persons was considered for promotion to the post of MCM vide order dated 26.02.2007 after judgment passed in Writ Petition No. 1621/2005. However, the promotion was made subject to cancellation/amendment in case of any irregularity/mistake detected subsequently. It is the reply of the respondents that on scrutinising the record, it was found that MES 312990, Shri Krishan Lal was wrongly promoted as FGM HS-II, therefore, a review DPC for promotion from FGM (HS) to FGM (MCM) was carried out. As per clarification/amendment made vide letter dated 20.11.1995 (Annex. R/1), the following sentence was added at the end of para 8 of letter dated 21.07.1994:
“Prior to introduction of Three Grade Structure Fitter Engine (Now re-designated as MPDE) and DME (Now re-designated as Operator Earth Moving Machinery) were feeder category to Charge Mechanic HS-I) Now re-designated as Sr Mechanic. Therefore all the existing MPDE (SK) and DME (Now re-designated as Operator Earth Moving Machinery) will remain enmasse rank senior to all other merged trades for promotion to Fitter General Mechanic HS-II.”
As per reply, before merger of FGM SK, the designation of Shri Krishan Lal was MPDE. As such, he was accorded seniority correctly as per letter dated 20.11.1995 and was placed at serial No. 5 while promoting him as FGM HS-II. It is the reply of the respondents that accordingly, a review DPC was convened on 14.03.2008 to review the promotion of Krishan Lal from FGM HS-II to FGM HS-I and consequently the revised promotion order was issued vide letter dated 02.06.2008 by respondent No. 3 reviewing the promotion orders issued vide letter dated 09.02.1999. Consequently, the seniority in the trade of FGM HS-I of Shri Krishan Lal was revised/corrected/upgraded by placing him at serial NO. 5 as per provisions contained in letter dated 20.11.1995 issued by Engineer-in-Chief’s Branch. In continuation of the promotion from FGM HS to FGM (MCM), a review DPC was convened in May, 2016 to review the promotion from FGM HS to FGM MCM and consequently revised promotion order was issued vide letter dated 25.11.2016 reviewing the promotion order issued on 26.02.2007. The exercise of correcting the seniority resulted into the impugned order dated 25.11.2016 (Annex. A/1) and date of promotion of the applicant as MCM was required to be changed/corrected from 01.01.1996 to 20.05.2003 for making room for Shri Krishan Lal who is admittedly senior to the applicant. Contradicting the claim of the applicant, the respondents prayed to dismiss the OA.
Heard learned counsel for the parties and perused the material available on record.
Learned counsel for the applicant submitted that vide order dated 26.02.2007 (Annex. A/2) issued pursuant to the direction issued by the Hon’ble Rajasthan High Court, the applicant was placed as MCM w.e.f. 01.01.1996 by the respondents. However, after a lapse of more than 09 years, vide impugned order dated 25.11.2016 (Annex. A/1), the respondents have changed the date of placement of the applicant from 01.01.1996 to 20.05.2003 and unsettled the otherwise settled position without any opportunity of hearing provided to him, which adversely affected his interests.
On the contrary, learned counsel for the respondents submitted that vide order dated 24.12.2016 (Annex. R/2), the respondents have issued reasons for revision of placement as FGM MCM in respect of the applicant. The date of placement of the applicant was due to rectification of mistake as Shri Krishan Lal was senior to the applicant in view of clarification dated 20.11.1995 issued by the E-n-Cs Branch but the said seniority was ignored by the DPC held on 27.07.1998 and review DPC held on 30.01.1999. The aforesaid exercise has been done to effect the lawful claim of Shri Krishan Lal, therefore, the applicant’s claim in this OA is baseless on merits.
Having regard to the submission made by learned counsel for the parties and material available on record, it is an admitted position that after coming into force the order dated 20.05.2003 (Annex. A/3)of restructuring of cadre of Artisan Staff in Defence Establishments after recommendations of 5th CPC, the applicant was placed as MCM from retrospective effective date 01.01.1996. It is also not in dispute that before restructuring came into force, the applicant was promoted from the post of FGM (SK) to FGM HS-II w.e.f. 21.04.1995 and HS-I w.e.f. 08.08.1998. Record reveals that before issuing the placement order dated 26.02.2007, the applicant alongwith others filed various OAs before this Bench seeking placement as MCM. After remaining unsuccessful before this Bench, they got relief from the Hon’ble High Court in DBCWP No. 1621/2005 decided on 11.08.2005. Thereafter, the order of placement of 22 FGM HS including the applicant as MCM was issued by the respondents on 26.02.2007. It is an admitted position that aforesaid order has been passed purportedly to be in compliance of the directions issued by the Hon’ble Rajasthan High Court in DBCWP No. 1621/2005 decided on 11.08.2005. After issuing the aforesaid placement order on 26.02.2007, the same remained in force for more than 09 years when the respondents issued a revised date of placement as MCM affecting the applicant and some other employees. It is also not in dispute that before revising the date of placement, no opportunity of hearing was given to the applicant to put his case before the authorities. The impugned order also does not mention the reasons for change of date of placement of the applicant as MCM from 01.01.1996 to 20.05.2003. In our view, the change in date of placement of the applicant as MCM has been done by the respondents in violation of principles of natural justice. The impugned order adversely affecting the interests of the applicant was issued without giving him any hearing opportunity. The respondents cannot be allowed to unsettle the position settled in 2007 pursuant to judicial direction.
The reasons for revision of date of placement has been issued by so called speaking order/show cause notice dated 24.12.2016 (Annex. R/2). It is surprising to note that this show cause notice has been issued after the order of revision of the date of placement of the applicant as MCM had already been issued on 25.11.2016 (Annex. A/1) by the respondents. This approach of the respondents seems to be a mere formality to justify their action.
So far as the reasons assigned in this order, we find no justification in revising the date of placement of the applicant as MCM. First of all, the respondents misguided themselves to treat the placement of MCM as a promotion order. The respondents failed to assign the reasons for treating the applicant junior to Krishan Lal. In the absence of the reasons, this Bench is unable to appreciate the action of the respondents revising the earlier placement date of the applicant. It is also pertinent to note that upon revising the date of placement, the respondents themselves have not revised the pay scale of the applicant. In view of the above, the order dated 25.11.2016 changing the placement date of the applicant from 01.01.1996 to 20.05.2003 is not sustainable in the eye of law.
Resultantly, while allowing the OA, order dated 25.11.2016 (Annex. A/1) qua applicant is quashed and set aside reviving the earlier order dated 26.02.2007 (Annex. A/2) qua applicant. The respondents are directed to treat the applicant placed as MCM w.e.f. 01.01.1996 without disturbing the placement of Shri Krishan Lal as MCM and give him consequential benefits, if any.
Accordingly, the instant OA is allowed with no order as to costs.