w w w . L a w y e r S e r v i c e s . i n

M.N. Ashok Kumar & Others v/s Union of India, Rep. by the Director General, Fishery Survey of India, Mumbai & Others

Company & Directors' Information:- REP CORPORATION PRIVATE LIMITED [Strike Off] CIN = U26921TN2005PTC055138

Company & Directors' Information:- A. S. INDIA LIMITED [Active] CIN = U70100MP2009PLC022300

Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- A. KUMAR AND COMPANY PRIVATE LIMITED [Active] CIN = U19201UP1995PTC018833

Company & Directors' Information:- ASHOK AND CO INDIA PVT LTD [Active] CIN = U15549AS1992PTC003756

Company & Directors' Information:- S KUMAR & CO PVT LTD [Not available for efiling] CIN = U51909WB1946PTC014540

Company & Directors' Information:- S KUMAR AND COMPANY PRIVATE LIMITED [Converted to LLP] CIN = U45203DL1964PTC117149

Company & Directors' Information:- KUMAR (INDIA) PVT LTD [Strike Off] CIN = U51909WB1986PTC041038

Company & Directors' Information:- UNION GENERAL CO LTD [Strike Off] CIN = U10200WB1950PLC018697

Company & Directors' Information:- UNION COMPANY LTD. [Active] CIN = U36900WB1927PLC005621

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- P KUMAR & CO PRIVATE LIMITED [Strike Off] CIN = U27105WB1998PTC087242

Company & Directors' Information:- ASHOK AND COMPANY PRIVATE LIMITED [Active] CIN = U74899DL1986PTC024382

Company & Directors' Information:- M KUMAR AND CO PVT LTD [Strike Off] CIN = U18101DL1982PTC014823

Company & Directors' Information:- UNION COMPANY PRIVATE LIMITED [Dissolved] CIN = U99999KA1942PTC000292

    Original Application Nos. 1228 of 2012 & 916 of 2013

    Decided On, 30 October 2015

    At, Central Administrative Tribunal Ernakulam Bench


    For the Applicants: M.A. Shafik, Advocate. For the Respondents: K.C. Muraleedharan, ACGSC.

Judgment Text

P. Gopinath, Administrative Member.

1. Applicants are working as unskilled worker/Multi Tasking Staff under respondent no.3. Applicant in O.A 1228/12 has been recruited as such at the Integrated Fisheries Project (IFP for short) during 1990. In the year 2005, for administrative convenience, the applicant and some others have been transferred to Cochin base of Fishery Survey of India (FSI for short) along with the posts including vacant posts. The applicant belongs to Mala Araya community, a scheduled Tribe of Kerala. As per Annexure A-2 transfer order dated 19.05.2005 transferring staff from Integrated Fisheries Project to Fishery Survey of India, vacancies are existing since 1998, which is to be filled by promotion, which the respondents did not fill up. In the meantime one vacancy for ST was advertised for filling up by direct recruitment. Though the applicant is eligible and entitled for promotion, the respondents did not consider the candidature of the applicant. Hence the applicant has approached this Tribunal in O.A No.196/2011. The Original Application was disposed off with a direction to the respondents to dispose off his representation. The same is now rejected as per Annexure A-1 in 2014 on the ground that Recruitment rules for the post has been amended and method of recruitment is 100% direct recruitment. The respondents have also notified the amended Recruitment Rules which specifies the filling up of the Slipway worker post only by direct recruitment.

2. It is submitted that the next promotion to which the applicant can aspire for is to the post of Slipway Worker. As per the Recruitment rules relating to the post, in erstwhile IFP, unskilled worker with 5 years experience in a recognized Slipway or Dry dock who has studied up to 4th standard, with good physical health is entitled for promotion as Slipway worker. In fact, direct recruitment can be resorted to only if the mode of promotion fails as per old recruitment rules which were operative on date of existence of vacancy. The applicant had approached this Tribunal in O.A No.196/2011 praying for a direction to the respondents to promote the applicant as Slipway worker with effect from the date of arisal of the vacancy and to grant consequential benefits of fixation of pay and seniority and of pay etc. The respondents have filed a reply stating that the notification for the post for ST was a typographical error and on verification it is found that the vacancy falls on a reserved point for SC. Though the reservation roaster was produced before this Tribunal, after hearing the arguments in detail, this Tribunal was pleased to direct the respondents to dispose of the representation submitted by the applicant.

3. From 1998 onwards 5 posts of Slipway Worker are vacant. The contention of the respondents that out of 5 vacant posts, one post under promotion quota was reserved for SC is incorrect. There is no quota fixed for promotion or Direct recruitment. In fact as per Recruitment Rules for the post in question, the method of filling up is 'Promotion failing which by direct recruitment'. All the employees like the applicant has been re-designated as Multi Tasking Staff post VI Central Pay Commission. The respondents have also notified the revised Recruitment Rules making the filling up of Slipway worker purely by direct recruitment, without filling up the vacancies existing since 1998.

4. The applicant has completed 21 years of service under the respondents. He has completed the required number of qualifying years of service during the year 1995 itself and is fully qualified to be promoted as Slipway Worker. As per column no.11 of the schedule of Recruitment Rules the qualifications sought for are:

'Unskilled worker in the scale of pay of Rs.196-232 with 5 years service in the grade.'

5. Three years experience in a recognized Slipway or Dry dock who have studied up to 4th standard, with good physical health is entitled for consideration on direct recruitment. The applicant thus possesses all the qualifications required for direct recruitment also.

6. Therefore, the applicant in O.A 1228/12 approached this Tribunal praying that he is entitled to be promoted to the vacancy of Slipway Worker earmarked for reserved community or any other open vacancy with effect from the date of arisal of the vacancy in 1998 or later and to grant consequential benefits of fixation of pay and seniority etc and other benefits on the basis of such promotion.

7. Respondent in their reply statement submit that with the introduction of new pay structure as per C.C.S (Revised Pay) Rules, 2008, the posts of Slipway worker Grade III and Slipway Worker Grade II in the pre-revised pay scales of Rs.2610-4000 and Rs.2750-4400 respectively were merged together and re-designated as Slipway Worker Grade II with the replacement pay band of Rs.5200-20,200 + 1800 G.P. Therefore, the then existing Recruitment Rules for the post of Slipway Worker Grade II has since been revised and prescribes the method of recruitment to the post by 100% Direct Recruitment. Therefore, no feeder cadre exists for the post of Slipway Worker Grade II.

8. It is submitted that a vacant post of Slipway Worker (Slipway Worker Grade III as classified in April, 2004) reserved for S.C was one among the 116 posts transferred to F.S.I from IFP vide Annexure A-1 transfer order. The method of recruitment for the post of Slipway Worker as per the Recruitment Rules of I.F.P the respondent admits was by promotion from Unskilled Worker (the post Applicant was holding), failing which by Direct Recruitment. Following transfer of posts to FSI, IFP had intimated FSI on 25.11.2005 that one post of Slipway Worker earmarked for S.T should be filled up during Special Recruitment Drive for SC/ST posts. Accordingly, the vacancy was advertised by 2nd respondent. The applicant vide his representation dated 07.07.2007 stated that he belonged to S.T category and that he was eligible for promotion to the post of Slipway Worker. Therefore, the process of recruitment was stopped and in consideration of the above representation, the 1st respondent initiated action to fill up the vacancy by promotion. At that stage, the respondents noticed a grade system introduced to the post of Slipway Worker vide Office Order No.70-2006 dated 25.09.2006 of the Director-in-charge, I.F.P, Cochin. After examining the matter, the Director, NIFPHATT had clarified vide letter No.A1/4-2/2007/1924 dated 30.05.2011 that the earmarking of the post of Slipway Worker for S.T. Vide Annexure R1 was a typographical error and that the vacancy was reserved for S.C. As the vacancy was not reserved for S.T., but S.C., the applicant cannot claim promotion to the post. Applicant's representation was right at that point of time, but become non-est after it was clear that the post was reserved for S.C. As per the post based roster for promotion, only sixth point was reached. ST point was only at 14th point. There was only one vacant SC post in the list of posts transferred to FSI from IFP and no post was earmarked for ST. It is submitted that five vacancies of Slipway Worker shown in Annexure A-2 could not be filled up due to merger of posts of Slipway Worker Grade III and Slipway Worker Grade II and revision of Recruitment Rules for the re-designated post of Slipway Worker Grade II. Post VI Central Pay Commission Revised RR for the post of Slipway Worker Grade II prescribes 100% Direct Recruitment.

9. In O.A 916/13, applicants were erstwhile Unskilled Labourers re-designated as Multi Tasking Staff. Issue involved in this matter is whether the applicants are eligible to be considered for promotion as Slipway worker or not. The three applicants were appointed on 01.02.1989, 16.04.1990 and 22.06.2000 respectively. As in the earlier O.A in terms of Annexure A-2 recruitment rules applicants who were Unskilled workers were entitled to be considered for promotion as Slipway Workers. In 2005, a part of Integrated Fisheries Project - a large number of posts and existing incumbents were transferred to Fishery Survey of India as Unskilled Workers. Third applicant Shri.Ashok Kumar was appearing at serial no.7. First applicant Mr.K.M.Ravi at 72 and the second applicant Mr.P.J.George at 74. At serial No.60, 61, 62, 63 and 64 five vacant posts were also transferred. Hence a total of 17 posts of Slip Way Workers were transferred to FSI, of which 5 were vacant from 1998 onwards. The FSI did not have its own Slip Way prior to the transfer of the Marine Engineering Division of the IFP and the cadre after transfer consisted of only some incumbents against posts and some vacant posts that were transferred from the IFP. The post of Slip Way Worker gives rise to further promotional avenues. Applicants aver that vacancies existed prior to transfer of posts and 6th CPC recommendations and hence applicants were eligible to be considered for promotion and had a legitimate claim also. DPC's should be held every year as per Government of India instructions. This group's avenue for promotion has been totally cut off by the amended recruitment rules. Recruitment Rules was amended in 2011. The vacancy existed prior to 2011 and the applicants could be considered for such vacancies which existed prior to amendment of Recruitment Rules in 2011 or prior to 6th CPC implementation in 2008 or 01.01.2006 when CPC recommendations were made effective.

10. The 3 MACPs will not give the same financial benefit as compared to channel of promotion of Slipway worker to Slipway Worker Grade I and higher industrial cadres including Master Craftsman. As per old recruitment rules, which were amended in 2011, the applicants had the option of promotion and their non-promotion due to the inaction to constitute DPC is arbitrary. The re-designation to MTS does not change the nature of work.

11. O.A No.1228/12 has only one applicant who is the 3rd applicant in O.A 916/13.

12. Heard the counsel for applicant and respondents and perused the written submissions made.

13. Applicant filed O.A 196/2011. This O.A was disposed of by this Tribunal on 02.04.2012. Annexure A-7 order as follows:-

'The applicant does not have a right to be promoted to a post reserved for SC but he can have legitimate aspirations for promotion which the respondents are bound to consider. Granting of financial up-gradation is no substitute for regular promotion. A quick glance at the roster register shows that respondents have carried forward reservation point for general category and promoted a SC candidate against a vacancy in the general category. The same could be possible in the case of the applicant also if it does not cause prejudice to anybody as and when the new recruitment rules are notified. Therefore, in the interest of justice the respondents are directed to first consider the representation of the applicant for promotion vide his letter dated 7.7.2007 and inform him of the decision thereupon by a speaking order before effecting any promotion to a post to which the applicant is eligible to be considered for promotion.'

14. As per Annexure A-2 transfer of posts order from IFP to FSI dated 19.05.2005 there were 5 posts of Slipway Workers vacant on 01.02.1998, 05.03.2001, 01.03.2003, 01.06.2004 and 01.09.2004 of which the post vacant on 01.02.1998 was a promotion quota SC post. The applicants had a legitimate claim to be considered for promotion on the above dates of vacancy of posts. By not doing so the respondents have adversely affected the legitimate right and aspiration of applicants for promotion which is covered by a plethora of judgments of the judicial forum. That there were vacancies is an undisputed fact. The respondents have not explained the reason for not filling up the posts pre-2005 transfer of staff. There appears to have been a conscious decision not to fill the posts which affects the legitimate aspiration of applicants. The new recruitment rules affect the promotion of MTS to LDC and hence closing another avenue of promotion to the clerical cadre.

15. The posts have been vacant since 1998 prior to the VI CPC and merger of Slipway Worker Grade II and Grade III and the issue of new MTS recruitment rules. As pointed out in the earlier judgment in the matter, there are alternate ways in which reserved category candidates could have been considered for promotion and which respondents could have resorted to.

16. Absence of promotional prospects is one of the disgruntling factors that adversely affect the morale and interest of any employee. Promotion is therefore a normal incidence of service. A person is recruited by an organization not just for a job but for a whole career, which incorporates the opportunity to advance which was available in this case, but was quashed by the ineffectiveness of the respondent to keep the promotional interest of the applicants in mind.

17. Matters l

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ike promotion fall exclusively within the domain and jurisdiction of the executive. Judicial interference is warranted only when there is malafides, discrimination or patent injustice to litigants. This is a case where the legitimate aspiration of an employee for promotion in turn and as per availability of vacancy has been adversely affected by the lethargy of the respondent. This phenomenon is symptomatic of a sense of injustice and is subversive of devoted attention to official duties which ensures a satisfied and dynamic government system. Statutory rules and executive instructions on timely promotion existed, lack of implementation of which, has in this case resulted in applicants being at the receiving end of injustice. 18. Original Application is disposed of as stated below: The respondents are directed to promote the applicants as per seniority and as on the respective date of occurrence of vacancy as shown in Annexure A-2 transfer of staff order dated 19 May 2005 and as per recruitment rules existing on the date of occurrence of vacancy and grant all consequential benefits of pay and allowances. The ST candidate may exercise the option of being promoted against an unreserved vacancy or by de-reservation if no ST vacancy is available, as no ST point is available for adjusting him. The entire exercise be completed within four months from the date of receipt of a copy of this order. No order as to costs.