Union Of India vs B.R. More
2017 Latest Caselaw 1650 Bom

                                           1                            WP.124/2008(23)

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 ORDINARY ORIGINAL CIVIL JURISDICTION

                           WRIT PETITION NO. 124 OF 2008

Union of India                           ...Petitioner
through General Manager
Ordnance Factory Ambarnath
Dist: Thane.
      Vs.
B.R. More,                               ...Respondent
Ex-Examiner High Skilled,
3762/2586-QCA,
Residing at:
Block No.A-564/1128
Behind Shakti Apartments,
Ulhasnagar-421004.

Mr. Vinod Joshi a/w. Ms. Neeta Vinay Masurkar, Advocate 
for the Petitioner 
Mr. K.B. Talreja, Advocate for the Respondent 

                                   CORAM : SMT. V.K. TAHILRAMANI, &
                                               M.S. KARNIK, JJ.

Reserved on 6 th April, 2017 Pronounced on 17 th April, 2017

JUDGMENT [PER SHRI M.S. KARNIK, J.]

1. The Petitioner Union of India by this Petition challenges the order

passed by the Central Administrative Tribunal Bombay Bench, Mumbai.

The Tribunal by the impugned order has directed the Petitioner to

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consider and grant promotion to the Respondent to the post of

Mastercraftsman from the date his juniors were given the same with all

the consequential benefits including pay fixation, grant of arrears and

pension etc. The Tribunal accordingly allowed the O.A. filed by the

Respondent.

2. The brief facts based on which the Respondent approached the

Tribunal in a nutshell are as under:

(a) The Respondent was appointed as Labourer 'B' with effect from

17th September, 1976 in the Ordinance Factory, Ambarnath. The

Respondent was superannuated with effect from 31 st October, 2004

after completing more than 28 years of service. The Respondent started

getting pension from November, 2004 in the pay-scale of Rs.4000 -

8000 on the basis of last drawn basic pay which was Rs.5000/- p.m.

(b) According to the Respondent the Petitioner by introducing

restructuring scheme dated 13th August, 2003, which was issued by the

General Manager, about 106 staff including the Respondent became

entitled to be considered and promoted by way of upgradation under

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the said scheme. These promotions were from Highly skilled Grade to

Master craftsman in the pay scale of Rs.4500 - 7000. The Petitioners

further placed about 180 highly skilled industrial employees in the

grade of Master Craftsman in the pay scale of Rs.4500 - 7000 with

effect from 20th May, 2003 under the said restructuring scheme. The

Respondent finds his place in seniority list dated 31st December, 2003 as

corrected upto 31st December, 2004.

(c ) According to the Respondent he was not given upgradation under

the restructuring scheme and as such he made a representation on 10 th

September, 2004 before his retirement, but the needful was not done by

the Petitioners and in the meanwhile he superannuated. Even thereafter

he sought interview by letter dated 14 th July, 2005 and duly gave

reference to the earlier representation dated 10th September, 2004.

(d) According to the Respondent the same benefit for which he filed

the OA has already been extended to others including his juniors

retrospectively and the Respondent has been conveniently ignored. It is

only on account of the delay in considering the case of the Respondent

which is attributable to the Petitioners that the Respondent is put to

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prejudice. The Respondent cannot be blamed for this and made to

suffer.

3. The Petitioners by filing reply dated 16 th August, 2006 before the

Tribunal have relied upon Ministry of Defence letter No.11(I)/2002(D)

(Civ-I) dated 20th May, 2003 under letter No.01/Cadre-

Restructuring/A/I dated 12th July, 2003. Para 3 of the said letter reads

as under:

"Where ever the grade structure in the Industrial as well as in the Non-industrial trades is already existing in the ratio of 65:20:15, in the erstwhile Skilled, HS-II,HS-I. The merger of HS-II and HS-I shall be treated to have come into effect from 1.1.1996 and the grade structure of Skilled and Highly skilled categories shall be in the ratio of 65:35:, 10% of 35% HS will be for Mastercraftsman. The promotions/placements were to be made with retrospective effect from 1.1.96 onwards and a one time measure, the placement and promotions were to be made without holding Trade Test or DPC for the vacancies accrued up to 20.5.2003."

4. According to the Petitioners consequent on implementation of

revised ratio with effect from 1 st January, 1996 the HS-I and HS-II

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grades were merged with effect from 1st January, 1996 in various

Trades and seniority list was published as on 1 st January, 1996. The

Respondent occupied position at Sr. No.127 in the said list. The

vacancies were worked out after implementation of revised ratio as on

20th May, 2003 in various trades. There were 32 vacancies in the

trade/grade of Examiner/Master craftsman to be filled up with effect

from 1st January, 1996 to 19th May, 2003 and 16 vacancies were to be

filled up with effect from 20th May, 2003. The eligible candidates as per

seniority in the HS Scale were placed in the grade of Master Craftsman

in Examiner trade with effect from 1st January, 1996 vide F.O. Part II

No.999 dated 13th August, 2003 and from 20 th May, 2003 vide FO Part

II No.1000 dated 13 th August, 2003. The Respondent who occupied

127th position in the seniority list was not within the zone for which

vacancy was available and, therefore, not placed in the higher grade.

Another seniority list was prepared showing the position of employees

as on 20th May, 2003. The Respondent now occupied position at Sr. No.

15 in the Highly skilled grade of Examiner. 6 more vacancies of Master

craftsman were filled up by placement from Examiner/HS vide Factory

Order part-II No.1000A dated 13th August, 2003.

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5. According to the Petitioner in the seniority list published on 31 st

December, 2003, the Respondent occupied 9 th position. It is further

contended that Ordinance Factory Board, Kolkata vide letter 15 th

January, 2004 issued instructions that pending revision of trade grade

wise sanction strength in consultation with factories, vacancies arising

after 20th may, 2003 due to retirement/death etc. should not be filled

up until a clearance to that effect is issued from Ordinance Factory

Board. Further filling up of vacancies were put on hold awaiting

clearance from Ordnance Factory Board. In the meanwhile, the

Respondent vide letter dated 10th September, 2004 requested for a

promotion on the eve of his impending retirement after reaching the

age of superannuation with effect from 31 st October, 2004. The

Petitioners contended that the matter in clear terms was explained to

the Respondent in person and the Respondent appeared to be satisfied

on this count.

6. The Petitioner further contended that the Ordnance Factory Board

by letter dated 24th September, 2004 intimated allocation of revised

sanctioned strength of Industrial Establishment as on 1 st April, 2004.

The factories were asked to workout trade/grade wise distribution of

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revised sanctioned strength as on 1 st April, 2004 keeping in view the

revised inter-grade ratio. The details, thus, worked out were forwarded

to Ordnance Factory Board after duly getting the same vetted by local

Accounts office and prior to putting the same into operation. This

indeed superceded the earlier letter dated 15th January 2004. The

Ordnance Factory Board again vide letter dated 29 th September, 2004,

instructed factories to obtain the opinion of the JCM prior to

finalization of the revised distribution of trades/grades etc. The

trades/grades wise distribution of the revised sanctioned strength was

discussed in the meeting of the JCM (IV th level) held on 15 th October,

2004, 15th December, 2004 and 28th December, 2004. The distribution

of trade/grade was, thus, finalized and after due approval was sent to

local accounts office for vetting. The vetted copy of the same was

forwarded to Ordnance Factory Board on 1st January, 2005. Promotions

from skilled grade to Highly skilled grade and from highly skilled grade

to Master craftsman was initiated in January, 2005 with vacancy

position as on 1st January, 2005 and completed by May, 2005. Vacancy

position as on 1st January, 2005 was taken into account for all the

trades/grades and the promotions/placements were effected based on

the same. Since the Respondent had retired from service with effect

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from 31st October, 2004, consideration of his case for promotion, was

out of context and the contention of the Respondent that delay by

administration had deprived the Respondent of promotion also is not

good ground for consideration. The factory administration has carried

out the instructions issued by its Head Quarters and Ministry of Defence

from time to time.

7. The learned Tribunal was pleased to allow the O.A. The learned

Tribunal in para 6 held thus:

"6. We have heard the learned counsel for the parties at length and also perused the records annexed with the pleadings including Restructuring Scheme dated 12.07.2003. It is undisputedly true that promotions are given to officers on their satisfying the eligibility criteria and other conditions as per the Rule and purely based on available vacancies. In the present case, the promotions are based on seniority and subject to available vacancies. Initially when the cases of various incumbents were not considered in August, 2003(13.08.2003), sufficient vacancies were there to accommodate the applicant as per his seniority. However, when the allocation of revised sanctioned strength of Industrial Establishment as on 01.04.2004 was intimated by

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the Ordnance Factory Board vide its letter dated 24.09.2004 and when other details were worked out for promotion of various incumbents, the applicant had already retired on 31.10.2004 and the promotions were actually effected subsequently based on the seniority list of 01.01.2005.

7. It is an admitted position of record that the applicant was enjoying the position No.9 in the seniority list as on 1.1.2004. Incidentally, he retired in October, 2004 and, therefore, as in January, 2005 his name was not to be found in the seniority list and as such despite revised sanctioned strength by the Ordnance Factory Board letter dated 24.09.2004, which duly took into account vacancies this case is that although the consideration for promotion of various incumbents, including the juniors of the applicant, was done in January 2005 but actually it was in respect of vacancies prior to that period i.e. on 1.1.2004 when the applicant was in service and also the benefits were extended retrospectively. It is, thus, evident that the applicant is possess a vested right to be promoted when the vacancies become available during the period when he was in service and cannot be promoted due to long procedure taken by the respondents in considering and promoted various incumbents in response to the Ordnance Factory Board letter dated 24.09.2004 in which juniors to the applicant were promoted.

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8. In the circumstances, we feel that the applicant has made out a case for consideration and grant of promotion to the post of Mastercraftsman from the date his juniors were given the same with all the consequential benefits including pay fixation, grant of arrears and pension etc."

8. According to the Tribunal the Respondent possessed a vested right

to be promoted when the vacancies became available during the period

when he was in service. The Respondent's case was not considered

prior to his retirement on account of the long procedure taken by the

Petitioner in considering and promoting various incumbents in response

to the Ordnance Factory Board letter dated 24 th September, 2004 in

which juniors to the Respondent were promoted. According to the

Tribunal, though the consideration for promotion of various incumbents

including the juniors of the Respondent was done in January 2005, but

actually it was in reference of the vacancies prior to that period i.e. as

on 1st January, 2004 when the Respondent was in service and also as

the benefits were extended retrospectively, the Tribunal was of the

opinion that the Respondent has made out a case for consideration and

grant of promotion to the post of Master craftsman from the date his

juniors were given the same with all consequential benefits.

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9. In our opinion when admittedly the Respondent had retired from

service with effect from 31st October, 2004 and the consideration of

promotion of various incumbents was initiated only in January, 2005

with vacancy position as on 1st January, 2005, the Petitioners were

justified in not considering his case for promotion. The Petitioners have

explained the circumstances in which the decision was taken to initiate

the process of promotion in January, 2005 when the vacancy position as

on 1st January, 2005 was taken into account for all the trades/grades

and the promotions / placements were effected based on the same.

Further more we do not find the delay in completing the procedure is

malafide or unjustified. The view taken by the Tribunal that

Respondent possessed a vested right to promotion when the vacancies

were available during the period when he was in service, therefore,

calls for interference. In the circumstances, it is difficult to sustain the

judgment of the Tribunal.

10. A profitable reference in this context can be made to the decision

of the Apex Court in the case of Union of India & Ors. Vs. K.K. Vadera

& Ors. 1989 Supp(2) SCC 625. Para 5 of the decision of the Apex

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Court reads thus:

"5. There is no statutory provision that the promotion to the post of Scientist 'B' should take effect from July 1 of the year in which the promotions is granted. It may be that, rightly or wrongly, for some reason or other, the promotions were granted from July 1, but we do not find any justifying reason for the direction given by the Tribunal that the promotions of the respondents to the posts of Scientist 'B' should be with effect from the date of the creation of these promotional posts. We do not know of any law or any rule under which a promotion is to be effective from the date of creation of the promotional post. After a post falls vacant for any reason whatsoever, a promotion to that post should be from the date the promotion is granted and not from the date on which such post falls vacant. In the same way when additional posts are created, promotions to those posts can be granted only after the Assessment Board has met and made its recommendations for promotions being granted. If on the contrary, promotions are directed to become effective from the date of the creation of additional posts, then it would have the effect of giving promotions even before the Assessment Board has met and assessed the suitability of the candidates for promotion. In the circumstances, it is difficult to sustain the judgment of the Tribunal."

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11. For the reasons stated above we set aside the order of the

Tribunal directing consideration and grant of promotion to the

Respondent to the post of Master craftsman from the date his juniors

were given the same with all consequential benefits.

12. The Writ Petition is accordingly allowed in terms of prayer clause

(a). Rule is accordingly made absolute with no orders as to costs.

     (M.S. KARNIK, J.)                     (SMT. V.K. TAHILRAMANI, J.)