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Judgment
ORDER
Hon’ble Dr. Chhabilendra Roul, Member (A)
By way of the present OA, the applicant seeks the following relief:
“8.(A) That this Hon’ble Court be pleased to quash the order dated 26.12.2017 and treat the applicant senior to Ramesh Chand.
(B)That this Hon’ble Court be pleased to direct the respondents to promote the applicant to the post of M.C.M. at par with Ramesh Chand or w.e.f. 01.01.1996.
(C)That this Hon’ble Tribunal be pleased to direct the respondents to pay the applicant all consequential benefit along with 18% interest.
(D)That this Hon’ble Tribunal be pleased to award the costs of this Original Application in favour of the applicant, throughout.”
The factual matrix of the present case is as follows:
The applicant was initially appointed as Civilian Painter on 18.04.1979 in Unit 57(1), ASC in the pay scale of Rs.225-308. He filed OA No.922/2004 seeking promotion to the post of Highly Skilled Grade-II and Grade-I with effect from 15.10.1984, as per policy decision communicated by order dated 15.10.1984. A Coordinate Bench of this Tribunal vide order dated 28.10.2009 directed the respondents to promote the applicant to the post of Highly Skilled Grade – II and Highly Skilled Grade-I with effect from 15.10.1984. In pursuance of the aforesaid order of the Tribunal, the respondents conducted a review DPC and promoted the applicant to the post of Highly Skilled Grade-II with effect from 15.10.1984 and Highly Skilled Grade-I with effect from 15.10.1985 as well as to the grade of Master Craftsman (MCM) with effect from 20.05.2003. This was communicated to the applicant vide order dated 1.11.2012. The applicant has submitted that it was only in April 2013 that his pay was fixed as Highly Skilled II and Highly Skilled I with effect from 15.10.1984 and 15.10.1985 respectively. After coming to know about the said pay fixation, the applicant gave representation dated 17.06.2014 to the respondents requesting that his promotion to the post of MCM should be with effect from 1.01.1996 instead of 20.05.2003 in accordance with the circular dated 20.05.2003 issued by the respondents (Annexure A-2). The applicant submitted further representation on 21.11.2014 stating that one Shri Ramesh Chand who has been promoted to the post of HS-I with effect from 1987, has been promoted to the grade of MCM with effect from 1997. Citing that Shri Ramesh Chand, who was junior to him in the cadre of HS-I, has been promoted as MCM in 1997, the applicant states that his promotion was made effective with effect from 20.05.2003. Being aggrieved, he filed OA number 1382/2015 before this Tribunal. The Tribunal, after hearing the parties, passed the following order on 17.04.2017:
“Accordingly, the respondents are directed to promote the applicant to the post of M.C.M. w.e.f. 01.01.1996 at par with his junior Shri Ramesh Kumar, if the facts are not found otherwise, within a period of two months from the date of receipt of certified copy of this order. It is also made clear that whatsoever the consequential benefit will flow from the promotion, the applicant will be entitled for the same.”
The applicant approached the respondents for compliance of the order dated 17.04.2017 passed by this Tribunal by way of giving representation dated 7.11.2017. The respondents vide order dated 26.12.2017 rejected the claim of the applicant that he was senior to Shri Ramesh Chand. Being aggrieved, the applicant has filed the present OA seeking the aforementioned reliefs.
Notices were issued to the respondents and they have filed their counter reply, to which the applicant has also filed rejoinder. Supplementary affidavits and written submissions have also been filed by the learned counsels for the parties.
Learned counsel for the applicant, relying on the pleadings in the OA, has put forth the following grounds in support of the relief sought by the applicant:
The respondents have completely disregarded the directions issued by this Tribunal vide its order dated 17.04.2017 where this Tribunal directed the respondents to promote the present applicant as MCM w.e.f. 1.01.1996 at par with his junior Shri Ramesh Chand. Instead of complying with the order of the Tribunal, the respondents have rejected his claim that he is senior to Shri Ramesh Chand and further rejected his prayer for being placed as MCM with effect from 1.01.1996. The sole ground taken by the applicant in his OA, as reiterated by the learned counsel for the applicant, is that all throughout his career, the respondents have treated Shri Ramesh Chand as junior to the present applicant. The pay of Shri Ramesh Chand was fixed at Rs.4800/- in the pay scale of Rs.4000-106-6000 as on 1.01.1996 whereas the pay of the applicant as on 1.01.1996 was fixed at Rs.5000/- in the pay scale of Rs.4000-106-6000. Secondly, the applicant was promoted in the post of Painter H.S. Grade I with effect from 15.10.1985 whereas Shri Ramesh Chand was promoted and placed in H.S. Grade I with effect from 1987 after passing the trade test of Painter for H.S. Grade I. Earlier, both Shri Ramesh Chand and the applicant had been promoted in the post of Painter H.S. Grade – II and their pay was fixed at Rs.330/- per month in the pay scale of Rs.330-480 with effect from 15.10.1984. From all the above facts, the applicant states that Shri Ramesh Chand was always junior to the present applicant. As his junior, Shri Ramesh Chand, has been promoted to the post of MCM with effect from 1.01.1996, the applicant should have been promoted to the same rank with effect from 1.01.1996.
Per contra, the learned counsel for the respondents refers to the counter affidavit filed by the respondents and states that the career progression of both the applicant and Shri Ramesh Chand are different and they have been recruited from the different channels. He refers to paragraph 6 of the counter affidavit which reads as follows:
“6.That in reply to the contents of paragraph nos 4.1 of the O.A. it is submitted that the applicant was initially appointed as Painter (semi skilled) on 18.04.1979 in 57(1) Supply ASC in pay scale of Rs.225-300. However the applicant and other persons subsequently rendered surplus and consequent thereto the applicant was transferred and posted in Military Engineering Service on 28.04.1982. It is further pointed out that during the tenure of posting as Painter in MES the Ministry of Defence Govt. of India issued a circular dated 15.10.1984 by which semi skilled grade having pay scale of Rs 210-290 has been upgraded to skilled grade having pay scale of Rs.260-400 w.e.f. date of issuance of the aforesaid circular, the benefit of the aforesaid circular was also extended to the applicant. Moreover, after introduction three grade structure in Industrial Personnel by the Government of India on 15.10.1984, the provision was made applicable for skilled grade, who were getting the scale of Rs.260-400 and consequently selection for highly skilled grade-II and grade-1 based on seniority without passing the Trade Test for one time relaxation of quota till finalization of recruitment rules was considered. Therefore the applicant could not be considered for one time relaxation quota for promotion against 35% (15%+20%) as he was junior to those persons who were considered for the same under the provisions of circular dated 15.10.1984 as the applicant was remain in 65% quota in semi skilled category.”
Learned counsel for the respondents further states that the applicant was earlier promoted from Skilled to Highly Skilled Grade II with effect from 1.01.2006 and as High Skilled Grade I with effect from 1.01.2008 and further as MCM on 20.05.2003. The applicant filed OA No.922/2004 in Allahabad Bench of this Tribunal to promote him at par with his junior namely Shri Kailash Chandra with all consequential benefits. The Allahabad Bench of the Tribunal vide order dated 28.10.2009 directed the respondents to consider the case of the applicant for grant of similar benefit of upgradation from the date his junior namely Shri Kailash Chandra has been granted upgradation but without consequential benefits. Accordingly, a review DPC was convened on 26.10.2012 and the applicant was promoted as Painter Highly Skilled Grade II with effect from 15.10.1984 and as Painter Highly Skilled Grade I with effect from 15.10.1985 and further as MCM with effect from 20.05.2003. All these facts have been admitted by the applicant in his OA.
Earlier the applicant had preferred OA No.983/2013 before the Coordinate Bench of this Tribunal at Allahabad for grant of upgradation with all consequential benefits. The Tribunal vide order dated 28.11.2014 directed the respondents to calculate all consequential benefits with effect from 15.10.1984 and pay the differential amount to the applicant deducting the amount which has already been paid to him. The respondents preferred a Writ Petition before the Hon’ble High Court of Allahabad which, vide order dated 13.05.2016, quashed the order dated 28.11.2014 passed by the Tribunal. The said Ramesh Chand against whom the applicant is seeking parity is senior to the applicant as he was appointed more than ten years earlier to the applicant. The Coordinate Bench of this Tribunal at Nainital directed the respondents to promote the applicant as MCM with effect from 1.01.1996 at par with his junior namely Shri Ramesh Chand, if the facts are not found otherwise. The competent authority has considered the entire matter in compliance of the order of the Tribunal and found that Shri Ramesh Chand was appointed as Painter during 1966 and the applicant was appointed in 1979. Hence, the applicant is much junior to Shri Ramesh Chand and there is no comparison between both the employees relevant at this stage. In view of this, the competent authority has passed detailed, reasoned and speaking order dated 26.12.2017 (impugned order), rejecting the claim of the applicant that he is senior to Shri Ramesh Chand and consequently he could not be given promotion to the post of MCM with effect from 1.01.2006. A comparative detailed chart of the applicant and Shri Ramesh Chand has been provided in the counter affidavit filed by the respondents, which is reproduced below:
| Ser No | Name | Date of Birth | Date of Appointment | Date of Promotion and Pay scale | Promotion after review DPC as per CAT, Allahabad judgment order dated 28.10.2009 | Remarks |
| (a) | MES-461386 Shri Ramesh Chand, MCM | 05.10.1947 | 16.10.1966 (Painter) 01.07.1972 (Painter Pt) | Painter Skilled 16.10.1981 (260-400) Painter HS-II 15.10.1984 | - | Individual retired on 31.10.2007 |
| (330-480) Painter HS-I 15.10.1985 (380-560) Painter MCM 24.04.1999 (4500-7000)* | *As per 5th CPC | ||||||
| (b) | MES-4484 Shri Raj Kumar, MCM | 16.04.1957 | 18.04.1979 (in ASC) 28.04.1982 (in MES) | Painter Skilled 16.10.1981 (260-400) Painter HS-II 01.01.2006 Painter HS-I 01.01.2008 Painter MCM 14.10.2010 | Painter HS-II 15.1.1984 (330-480) Painter HS-I 15.10.1985 (380-560) Painter MCM 20.05.2003 (9300-34800)# | Individual retired on 30.04.2017 As per 6th CPC | |
As Shri Ramesh Chand was always senior to the present applicant, the speaking order dated 26.12.2017 has been legitimately passed and there is no infirmity in the said order.
We have heard the learned counsels for the parties and gone through the records of the case thoroughly. We have also perused the supplementary affidavits and written submissions filed by both the parties.
In the instant OA, the applicant is seeking relief to treat him senior to Shri Ramesh Chand and quashing the order dated 26.12.2017, which has declined the claim of the applicant to declare him senior to Shri Ramesh Chand and give consequential benefits of pay fixation at par with Shri Ramesh Chand, when he was given the grade of MCM with effect from 1.01.1996. It is pertinent to mention here that no specific seniority order has been challenged in the instant OA.
Parity does not come from assertion that Ramesh Chand was junior to him by quoting certain pay scales etc. given to the said Ramesh Chand and to the applicant.
During the service period of two employees, many episodes do take place. An employee who is senior to another at the beginning of the service, might be relegated to a lower seniority on account of movement/promotion by the other employee. Hence, just stating that another employee was junior to him/her at a particular period and hence he/she shall remain junior to the present applicant all the times till retirement is not acceptable.
The respondents in their supplementary affidavit have given a comparative chart of the grant of pay-scales to the applicant and Shri Ramesh Chand during various periods. The applicant has failed to assail as to which entry in respect of the applicant is wrong and why? Just stating that at a particular period, Ramesh Chand was junior and both of them were drawing the same grade/salary is not sufficient to prove that the present applicant was senior to Ramesh Chand and he is entitled to get the benefits granted to Ramesh Chand.
The respondents have fairly submitted that the periods of entry of the present applicant and Ramesh Chand are different; their dates of retirements are also different. Both of them have been granted various scales at different periods. The applicant had once challenged granting of certain scales to one Kailash Chand in OA No.922/2004. This Tribunal (Nainital Bench) vide order dated 28.10.2009 directed the respondents to consider the case of the applicant to treat at par with Kailash Chand and grant various grades/promotion in parity with said Kailash Chand. The applicant challenged the order of the respondents in OA No.983/2013 and the Tribunal allowed the OA. However, the Allahabad High Court vide order dated 16.11.2015 stayed the Tribunal’s order and finally it was quashed by the High Court. In other words, the decision of the respondents vide order dated 01.11.2012 granting the promotion as Painter HS-II w.e.f. 15.10.1984, Painter HS-I w.e.f. 15.10.1985 and further MCM w.e.f. 20.5.2003 has attained finality.
Vide the impugned speaking order, the respondents have clearly established that Sh. Ramesh Chand was senior to the applicant in the service by citing the date of entry, date of retirement and grant of various grades/scales to him. In absence of impugning any specific seniority list, the applicant has failed to convince this Tribunal that he is senior to Ramesh Chand. Seniority in a cadre is not determined by an employee’s comparison with others. Others might have been given wrong seniority. By pleading parity with the said employee, would amount to pleading for negative equality, which is impermissible by law. The applicant has not adduced any evidence nor effective submission to convince this Tribunal that his seniority position vis-à-vis Sh. Ramesh Chand is different than what has been determined by the respondents.
The OA lacks merit and hence is dismissed. No order as to costs.