Delhi High Court
Kaptan Singh & Ors vs Union Of India & Ors on 10 September, 2012
Author: Badar Durrez Ahmed
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 10.09.2012
+ W.P.(C) 3588/2012
KAPTAN SINGH & ORS ... Petitioners
versus
UNION OF INDIA & ORS ... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr Himanshu Upadhyay
For the Respondent : Mr Ankur Chibber
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SIDDHARTH MRIDUL
JUDGMENT
BADAR DURREZ AHMED, J. (ORAL)
1. The petitioners, who are eight in number, are aggrieved by the order
dated 11.10.2011 passed by the Central Administrative Tribunal, Principal
Bench, New Delhi in O.A. No.2952/2010. The petitioners were initially
appointed as Chowkidars/Mazdoors/Sweepers in the year 1971 in the office
of the Garrison Engineer (West), Delhi Cantonment, in the pay-scale of
`70-1-80-EB-1-85. Subsequently, they were appointed as Motor Pump
Attendants (MPAs) in the year 1976. Thereafter, the said post of MPA was
re-designated as Refrigeration Mechanic on 10.12.1982 in the pay scale of
`260-6-326-EB-8-350. Subsequently, the petitioners were also promoted to
the post of Refrigeration Mechanic (Highly Skilled) in the year 2003 in the
pay scale of `4000-100-6000.
2. The petitioners are seeking the second financial upgradation under
the Assured Career Progression Scheme (ACP) on having completed 24
years of regular service. They are claiming financial upgradation to the pay
scale of `5000-8000 under the said ACP scheme on 09.08.1999.
3. The only point of contention is whether the appointment of the
petitioners to the post of MPAs was on promotion or by way of direct
recruitment. If it was a case of promotion, then the petitioners would not be
entitled to the second financial upgradation, inasmuch as, they would have
had the benefit of two promotions. On the other hand, if it was a case of
direct recruitment, then the petitioners would be entitled to the second
financial upgradation under the said ACP scheme.
4. The learned counsel for the petitioners drew our attention to a letter
dated 15.07.2005 issued by the Headquarters, Commander Works Engineer,
Delhi Cantonment, which is to the following effect:-
"Headquarters
Commander Works Engineer
Delhi Cantt-10
1030/NBACP/277/EIP 15 Jul 2005
GE (North) Delhi-54
RECLASSIFICATION: INDL STAFF
1. Reference this office letter No.1030/NB/561/E1P dt 09
Jan 1975, 1030/NB/LRS/68/E1P dt 04 Apr 1977 and
1102/NB/2033/E1P dt 15 Jan 1981.
2. The following amendments may please be carried out
in this HQ letters quoted above:-
(a) Delete the existing word "Promoted" and
substitute "Reclassified".
3. All other entries will remain unchanged.
Sd/-
(S.K. Jain)
SE
Commander Works Engineer
Copy to:-
1. HQ CE WC Chandimandir
2. HQ CE Delhi Zone, Delhi Cantt. For info please
3. AAO CE (North) Delhi."
5. Based on the said letter, the learned counsel for the petitioners
submitted that the petitioners were not promoted to the post of MPAs but
that the posts of Chowkidars/Mazdoors/Sweepers were reclassified as
MPAs. Therefore, the petitioners would be entitled to the second financial
upgradation under the said ACP scheme.
6. The learned counsel for the petitioners also submitted that in fact
certain other employees who were similarly situated, have been granted the
second financial upgradation on the ground that the post of MPA was
reclassified. It was, therefore, contended on behalf of the petitioners that
the petitioners were entitled to the second financial upgradation under the
said ACP scheme and that the similarly placed individuals had already been
granted the benefit. Consequently, the learned counsel submitted that
denial of the second financial upgradation under the said ACP scheme was
illegal and the Tribunal had erred in rejecting the petitioner's said Original
Application.
7. The learned counsel appearing on behalf of the respondents
submitted that earlier the Tribunal by virtue of the order dated 20.10.2008
in O.A. No.646/2008 had directed the respondent to pass a speaking order
after considering the petitioners' claim for the grant of the second financial
upgradation under the said ACP scheme.
8. Thereafter, the respondent/Competent Authority had passed a
speaking order on 05.02.2009. From a reading of the said speaking order it
is apparent that the petitioners' claim was reconsidered/reviewed by the
Competent Authority as per the extant Government Rules/various Policies.
In the said speaking order, with regard to the petitioner Kaptan Singh, the
following factual position was narrated:-
"4. In view of the information held on record, the facts of the
case for grant of ACP in your case are as under:-
(a) You were appointed as Chowkidar on 01 Apr 1971 in GE
(West) Delhi Cantt in the Pay Scale of Rs.70-1-80-EB-1-
85. An extract of PTO entry as recorded on Page 5 of SB
Pt-1 is enclosed. (Exhibit-I)
(b) You were subsequently promoted as MPA on 03 Feb 1976
as per provisions contained in Recruitment Rules. The
MPA comes in the direct line of promotion of
Mazdoor/Chowkidar as per SRO No.215, as such one
promotion was granted to you. An extract of PTO entry
as recorded on page 17 of SB Pt-I is enclosed. (Exhibit-II)
(c) You were re-designated as Refg. Mech from MPA with
effect from 10 Dec. 1982 in the pay scale of Rs.260-6-
326-EB-8-350. An extract of PTO entry as recorded on
Page 27 of SB Pt-I is enclosed. (Exhibit-III)
(d) Thereafter you were also promoted to Mech Refg. Highly
Skilled with effect from 20 May 2003 in the pay scale of
Rs.4000-100-6000. An extract of PTO entry as recorded
on Page 26 of SB Pt.-III enclosed. (Exhibit-IV)"
9. The said speaking order also indicated that as per paragraph 13 of the
of the Engineer-in-Chief's branch, Army Headquarters, standing order,
appointment of service employees to a higher post, which is not in direct
line of promotion, is to be treated as re-classification. It was clarified that
in other words the definition of re-classification is direct recruitment to a
particular post. It was further stated in the said speaking order that,
therefore, the petitioners' case was not covered under the definition of re-
classification. The conclusion arrived at in the speaking order was as
under:-
"6. In view of above, it is crystal clear that you have
already been granted two promotions, one of MPA (re-
designated as Refg. Mech) and 2nd of Refg. Mech HS. Hence
benefit of further financial up-gradation under ACP scheme
in the pay scale of Rs.5000-8000 can not be extended to you."
10. Thus, according to the learned counsel for the respondents, the
petitioners were not entitled to the second financial upgradation, inasmuch
as their appointments as MPAs was on the basis of promotion and not
through direct recruitment.
11. The learned counsel for the respondents also drew our attention to
paragraph 11.3 of the impugned order wherein the relevant portion of the
Recruitment Rules for filling up the post of Motor Pump Attendant were
extracted. The said paragraph 11.3 of the impugned order is as under:-
"11.3 The relevant portions of the Recruitment Rules for filling up
the post of Motor Pump Attendant (MPA) are extracted below:
Name of Classification Scale of Pay Whether Age limit Educational
the Post selection for direct and other
post of non- recruits qualificatio
selection ns required
post for direct
recruits
Motor Military Rs.75-2-85- Non- 25 years Essential
Pump Engineer EB-2-95 selection Middle
Attendant Services post standard
Class Non- pass
Gazetted
Industrial
Whether Period of Method of In case of If a DPC Circumsta-
age and probation, if recruitment recruitment exists nces in
qualificat any whether by by what is its which
-ions direct promotion compositi
UPSC is to
prescribe- recruitment or transfer on
ed for by promotion grades from be
direct or transfer which consulted
recruits and promotion to in making
will apply percentage of be made recruitment
in the vacancies to
case of be filled by
promot- various
ees methods
Age- No. Six months 100% by Promotion: Class IV Not
Qualifica- promotion Departm- Applicable
tions failing which Maz-doors, ental
Yes by transfer chowkidars, Promotion
and failing sweepers Commit-
both by direct who have tee
recruitment passed
recruitment
trade test for
the post
prescribed
by the
Engineer-in-
Chief, with
three years
service in
the grade.
Transfer:
Persons
working in
similar,
equivalent
or higher
grades in the
lower
formations
of Defence
Services
12. It was, therefore, contended by the learned counsel for the
respondents that the movement of the petitioners from
Chowkidars/Mazdoors/Sweepers to MPAs was on account of promotion
and not on account of direct recruitment.
13. The Tribunal examined the entire controversy and came to the
conclusion that the petitioners were appointed as MPAs on promotion and,
therefore, they were not entitled to the second financial upgradation under
the said ACP scheme. Being aggrieved thereby the petitioners are before
us.
14. After having heard the learned counsel for the parties and having
examined the matter at some length, we are of the view that the document
dated 15.07.2005 which had been shown to us by the learned counsel for
the petitioners and which indicates that the petitioners were not promoted
but that they were simply reclassified, is contrary to the Recruitment Rules.
The Recruitment Rules have been set out above and they clearly indicate
that the post of Motor Pump Attendant is to be filled up100% by promotion
failing which by transfer and failing both by direct recruitment. It is an
admitted position that all the petitioners were in service as
Chowkidars/Mazdoors/Sweepers. It is also to be seen from the
Recruitment Rules, that the promotion to the post of MPAs was to be from
the feeder post of Chowkidars/Mazdoors/Sweepers and the criteria for
promotion was that such Chowkidars/Mazdoors/Sweepers should have
passed the recruitment trade test prescribed by the Engineer-in-Chief and
they were also required to have three years service in the said grade.
15. From this it is clear that direct recruitment to the post of Motor Pump
Attendant could only be undertaken if there were no individuals available
in the category of Chowkidars/Mazdoors/Sweepers who had served three
years in that grade and had passed the recruitment trade test. But, the facts
of the present case indicates that all the petitioners were qualified for
promotion in the sense that they were Chowkidars/Mazdoors/Sweepers;
they had passed the recruitment trade test for the post of MPA as prescribed
by the Engineer-in-Chief; and, each of them had three years service in the
grade of Chowkidars/Mazdoors/Sweepers. Therefore, their movement
from the post of Chowkidars/Mazdoors/Sweepers to the post of Motor
Pump Attendant cannot but be regarded as promotion. The contention of
the learned counsel for the petitioners that they were appointed through the
process of direct recruitment, runs counter to the Recruitment Rules.
Consequently, we agree with the Tribunal in its finding that the so-called
re-classification was contrary to the recruitment rules and, therefore, cannot
be given effect to.
16. Another point which ought to have been noted by the Tribunal but
has not been noticed is the fact that insofar as direct recruitment to the post
of MPA is concerned, the age limit has been stipulated as 25 years. It is an
admitted position that the petitioners were all above the age of 25 years on
the date on which they were promoted to the post of Motor Pump
Attendant. Thus, had it been a case of direct recruitment, the petitioners
would not, in any event, have been eligible. This is another pointer in the
direction that the petitioners were promoted as Motor Pump Attendants and
had not been directly recruited as such.
17. The submission of the learned counsel for the petitioners that there
were others who were similarly situated and who have been given the
benefit of second financial upgradation under the said ACP scheme on the
ground that the post of MPA was a re-classification of the post of
Chowkidars/Mazdoors/Sweepers had been rightly rejected by the Tribunal,
inasmuch as the petitioners cannot claim negative quality contrary to the
Recruitment Rules. Had the Recruitment Rules permitted this, perhaps, the
petitioners may have had a case but, in view of the fact that the Recruitment
Rules do not permit a re-classification of Chowkidars/Mazdoors/Sweepers
as MPAs, this argument of the learned counsel for the petitioners is also
untenable.
18. Therefore, in view of the fact that the petitioners had been promoted
as MPAs, there is no question of them being entitled to the second financial
upgradation under the said ACP scheme inasmuch as, admittedly, they have
also been promoted as Refrigeration Mechanics (Highly Skilled) during
this period of 24 years. Hence, the petitioners, having had two promotions,
would not be entitled to any financial upgradation. Consequently, the
impugned order cannot be faulted.
19. The writ petition is dismissed. There shall be no order as to costs.
BADAR DURREZ AHMED, J
SIDDHARTH MRIDUL, J
SEPTEMBER 10, 2012
dn
