Gopal Singh, Member (A)
1. Applicant, Rajendra Prasad Sharma, has filed this application under Section 19 of the Administrative Tribunals Act, 1985, praying for setting aside the impugned order dated 01.7.1994 (Annexure A/1) and order dated 09.7.97 (Annexure A/2) and for a direction to the respondents to promote the applicant on the post of HS-II with effect from 01.7.1994 with all consequential benefits, and payment of arrears of pay & allowance with interest @ 18% per annum.
2. Applicant’s case is that he was initially appointed on the post of skilled Carpenter scale 225-308 w.e.f. 1.6.81 with the respondent-department. Consequent upon introduction of three grade structure upgradation scheme w.e.f. 15.10.84, respondents conducted a trade test for Carpenter, Painter, Electric Auto Fitter etc., for promotion to HS-II in January, 1986, wherein applicant also appeared and declared qualified and on recommendations of the DPC, the applicant and two other were appointed to HS-II w.e.f. 15.10.84 vide order dated 03.1.1986. The applicant was reverted on 25.7.89, reversion taking effect from 15.10.84. This reversion order was set aside by this Tribunal vide order dated 23.8.1993 in O.A. No. 599/89. Thereafter, respondents issued a show cause notice to the applicant vide letter dated 16.11.1993, and the applicant was reverted w.e.f. 01.7.1994 as a consequence thereof. This reversion was again stayed by this Tribunal vide order dated 21.1.1997 in O.A. No. 455/94 directing the respondents to examine the representation to be made by the applicant before implementing reversion order dated 01.7.1994. Representation made by the applicant was rejected vide order dated 09.7.1997 (Annexure A/2). This order was further challenged in CP No. 28/97 decided on 17.4.1998 with the direction that if the applicant is aggrieved by the order dated 09.7.1997, he may file a fresh O.A. Hence, this application.
3. In the counter it has been stated by the respondents that because of change in the policy vide Government of India, Ministry of Defence letter dated 08.4.1986 (Annexure R-2) which provided that 20% of the vacancies in HS Grd.II as on 15.10.1984 shall be filled on the basis of seniority without obligation to qualify in the trade test, the upgradation to HS Grd. II was to be in the basis of seniority and not on the basis of trade test. Therefore, Hari Shankar being senior to the applicant was extended the benefit of upgradation as HS II by reverting the applicant who was upgraded as HS Grd. II on the basis of trade test. The application has also been contested by the respondents on the grounds of res judicata and non-joinder of necessary parties.
4. We have heard the learned Counsel or the parties, and perused the records of the case carefully.
5. Implementation of applicant’s reversion vide order dated 01.7.1994 (Annexure A/ 1) was stayed by this Tribunal vide order dated 21.1.1997 in O.A. No. 455/94 till the representation made by the applicant was decided by the respondents. This representation was decided on 09.7.1997 (Annexure A/2). In Contempt Petition No. 28/97, the applicant was given liberty to challenge the order dated 09.7.1997 in fresh O.A. This order dated 09.7.1997, has been challenged in this O.A. Therefore, we are of the view that the application is not barred by resjudicata. In regard to non-joinder of necessary parties it has been urged by the respondents that if this application is allowed, it will affect adversely Shri
Hari Shankar, who was promoted as HS-II in place of the applicant and, therefore, Shri Hari Shankar should have been impleaded as party-respondent, which has not been done in this application. Here, it is pointed out that Hari Shankar had retired on superannuation in December, 1991. Therefore, there was no occasion to implead Hari Shankar as party-respondents in this O. A. Thus, the arguments put forth by the respondents in regard to res-judicate and non-joinder of necessary party are not tenable and are hereby rejected.
6. For a better understanding of the controversy involved, we consider it appropriate to extract relevant portion of order dated 08.4.1986 (Annexure R-2) as under :
“I am directed to say that in this Ministry’s letter Nos 3808-3823/DS (E&M/ Civ-1/84 dated the 15th October, 1984, it was inter alia, clarified that Highly Skilled Grade II and Highly Skilled Grade I scale should be introduced in common category skilled jobs, listed in Annexure I of these letters, with bench mark percentages as laid down therein. It was clarified vide OM No. 1(2)/80/D(ECC)/IC/VoIII(C), dated 19 Apr’ 5, that pending framing of the formal Recruitment Rules, promotions to Highly Skilled Grade II and Grade I would be subject to passing of trade tests and experience as specified therein.
2. The matter has been reconsidered in consultation with Indian National Defence Workers Federation and all India Defence Employees Federation and as agreed approach arrived at, as in Annexure A to this letter. Accordingly, promotions to highly Skilled Grade II/Grade I shall be regulated in accordance with the provisions of Annexure A. Promotions already made but which are not in accordance with Annexure A, and excess/unauthorised payments in respect of such promotions shall be regulated in accordance with the normal rules. It should be noted that the one-time relaxation prescribed in Annexure A is applicable only to workers in the common category jobs enumerated in Annexure 1 to this Ministry’s letter Nos 3808-3823/DS (OKM)/Civ-I/84 dated the 15th Oct 84, and is not to be treated as a precedent in other cases.
A. INFORMATION OF THREE GRADE STRUCTURE IN 23 COMMON CATEGORY JOBS WHICH HAVE BEEN ALLOWED BENCH MARK PERCENTAGES IN HIGHLY SKILLED GRADE II AND HIGHLY SKILLED GRADE I 1. Units under DGUF/DGI
(a) In any unit in which Ministry of Defence (Department of Def. Production) letter No. 1(32) /82/D (inspection), dated 11.4.1985 has been even partially implemented, the benefits of letter dated 11.4.1985 shall be allowed to all eligible functionaries covered under Ministry of Defence letter Nos. 3808-3823/DS (O&M)/Civ-l/84 dated 15.10.84. Implementation shall mean the issue of an order by the Head of the Unit concurred notifying the name of the workers who have been promoted to Highly Skilled Grade I, or Highly Skilled Grade II, to elucidate, if such implementation has taken place in respect of even one worker in given unit, all the remaining eligible workers in that unit shall be similarly benefited viz., promoted from Skilled to Highly Skilled Grade II and from Highly Skilled Grade II to Highly Skilled Grade I, as the case may be, in terms of the Ministry of Defence Letters of 15.10.84 referred to above, and arrears paid accordingly.
(b) In a unit in which Ministry of Defence (Department of Defence Production) letter of 11.4.85 referred to above has not been implemented as defined in (a) above, and not even a single worker has been promoted by the unit’s management to Highly Skilled Grade I or Highly Skilled Grade II) under the relaxation stipulate in the Ministry of Defence (Department of Defence Production) letter dated 11.4.85, no worker will be given the benefit of Ministry of Defence letter of 11.4.85. All the workers in such units shall be covered as under Para II below,
B. PROMOTION FROM SKILLED GRADE TO HIGHLY SKILLED GRADE II
(a) In units in which Recruitment Rules exist, the same shall be enforced to cover all promotion cases.
(b) In units in which Recruitment Rules are not enforced, the promotion of workers shall be as follows: (i) 20% of the vacancies, as on 15,10.84 shall be filled merely on the basis of seniority, without obligation to qualify in the trade test. (ii) Out of the 20% Slb, as in (i) above, all workers who are due to retire within the period from 15.10.84 to 30.4.86 shall be included. If the number of such "retires" exceeds 20%, only upto that extent, the 20% stipulation for Highly Skilled Grade II shall be exceeded.
(iii) Over and above, the 20% vacancies, referred to in (i) above, a further 15% posts will be operated at Grade II level till promotions are made to Grade I on the basis of trade test referred to in 1(b) above and skilled workers will be promoted to Grade II subject to their passing the trade test within two chances by 30.4.86. Those who qualify shall get the benefit of promotion w.e.f. 15.10.84. If, however, the number of promotees to Highly Skilled Grade II exceeds 20% due to the number of retirees being large, the additional 15% shall be reduced pre-rate so that the total number of worker getting on to Highly Skilled Grade II on 16.10.84 shall not exceed 35%.”
7. From the above, it is clear that the scheme was effective from 15.10.84. Upgradation/ promotion to HS II/HS I on the basis of policy dated 15.10.84 was subject to passing the trade test and in terms of policy dated 8.4.86, upgradation/promotion to HS II was on the basis of seniority. It is also clear that if the policy dated 15.10.84 has been implemented in any of the units even in respect of one worker, all the remaining eligible workers of that unit will be extended the benefit of scheme dated 15.10.84. In other cases scheme dated 8.4.86 would be applicable.
8. In the instant case, the applicant was extended the benefit of upgradation under the scheme dated 15.10.84 vide order dated 03.1.86 i.e., prior to the introduction of the scheme dated 08.4.86 and as such we are firmly of the view that the applicant was rightly promoted/ upgraded on HS-II and his reversion vide order dated 01.7.94 (Annexure A/1) is not tenable and deserves to be set aside,
9. In the light of above discussion, we find that the application has such merit and deserves to be allowed. Accordingly, we pass the following order :
10. The Original Application is allowed. Impugned order dated 01.7.94 (Annexure A/ 1) and order dated 09.7.97 (Annexure A/2) are quashed and set aside. The applicant would
continue to enjoy the benefit of upgradation/promotion as HS Grd.II with effect from 01.7.1994 (the date of reversion) with full pay and allowances and other consequential benefits like seniority, promotion etc. Respondents are given three months time from the date of receipt of this order to comply with this order. No costs.