Karnataka High Court

Sri.C.S.Talkal vs Union Of India on 2 February, 2023

Bench: G.Narendar, Venkatesh Naik T

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                                                     WP No. 25943 of 2022




                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                        DATED THIS THE 2ND DAY OF FEBRUARY, 2023
                                          PRESENT
                          THE HON'BLE MR. JUSTICE G.NARENDAR
                                             AND
                        THE HON'BLE MR. JUSTICE VENKATESH NAIK T
                         WRIT PETITION NO. 25943 OF 2022 (S-CAT)


                 BETWEEN:
                 1.    SRI.C.S.TALKAL
Digitally
signed by C            S/O LATE SRI H S TALKAL,
HONNUR SAB             AGED 59 YEARS
                       MACHINIST, T.NO.3089
Location: High
Court of
Karnataka        2.    SRI. PRADEEP KUMAR
                       S/O SRI GOVINDAN P
                       AGED 50 YEARS
                       MACHINIST HS, T.NO.3029

                 3.    SRI. V KUMAR,
                       S/O SRI VIJAYAN M,
                       AGED 41 YEARS,
                       MACHINIST, HS-II, T.NO.3117

                 4.    SRI K L ASHWATHANARAYANA,
                       S/O LATE SRI LAKSHMAIAH,
                       AGED 47 YEARS
                       MACHINIST, T.NO.3120

                 5.    SRI SHIVARAJ
                       S/O SRI HUCHAPPA,
                       AGED 46 YEARS,
                       MACHINIST HS-II T.NO.3121
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                                 WP No. 25943 of 2022




6.   SRI R M VASANTH KUMAR
     S/O SRI MUNIKRISHNAPPA D
     AGED 44 YEARS
     MACHINIST T.NO.3122

7.   RANGANATHA G
     S/O SRI C GOPALA,
     AGED 44 YEARS,
     MACHINIST HS-II T.NO.3123

8.   SRI CHANDRAKANT R M
     S/O SRI RAMACHANDRA N.M,
     AGED 42 YEARS,
     MACHINIST T.NO.3124

9.   SRI VENUGOPAL M.N.,
     S/O SRI NARAYAN M
     AGED 45 YEARS,
     MACHINIST T.NO.3166

10. SRI NANDAKUMAR S
    S/O SRI SEETHARAMU M
    AGED 42 YEARS
    MACHINIST T.NO.3169

11. SRI YERISWAMY H
    S/O SRI HANUMANTHAPPA
    AGED 48 YEARS
    MACHINIST T.NO.3173

12. SRI M CHEZHIYAN
    S/O LATE SRI A MUNUSAMY
    AGED 45 YEARS
    MACHINIST HS-II T.NO.3174

13. SRI DEVAPPA NAIK K,
    S/O SRI BALAKRISHNA NAIK
    AGED 49 YEARS
    MACHINIST HS-II T.NO.3140
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                                    WP No. 25943 of 2022




14. SRI T PILLAVENKATAPPA
    S/O TIRUMALAPPA
    AGED 46 YEARS
    MACHINIST HS-II T.NO.3145

                                           ...PETITIONERS
(BY SRI. P A KULKARNI., ADVOCATE)
AND:
1.   UNION OF INDIA,
     BY ITS SECRETARY
     MINISTRY OF DEFENCE
     SOUTH BLOCK
     NEW DELHI: 110001

2.   COMMANDANT AND MANAGING DIRECTOR
     515 ARMY BASE WORKSHIOP,
     HALASLURU,
     BENGALURU: 560008

3.   DIRECTORATE GENERAL OF EME
     MASTER GENERAL OF ORDANCE'S BRANCH
     INTEGRATED HQ OF MOD (ARMY)
     DHQ PO, NEW DELHI - 110105

4.   COMMANDER,
     515 ARMY BASE GROUP EME,
     MEERUT CANNT: 250 001

5.   SRI N CHINNASWAMY,
     AGED 44 YEARS
     S/O SRI P NALLINAN
     MACHINIST (HS-II), T.NO.3177
     515 ARMY BASE WORKSHOP
     BENGALURU: 560008
                                          ...RESPONDENTS
(BY SRI. SHIVAKUMAR. CGC FOR R1 TO R4,
 SMT. S.K.ANURADHA, ,ADVOCATE FOR R5.))
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                                             WP No. 25943 of 2022




     THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN
THE    NATURE   OF    CERTIORARI   OR   ANY    OTHER
WRIT/ORDER/DIRECTION QUASHING THE ORDER DATED
22/12/2022 IN OA 170/540/2022, ANNEXURE-A PASSED BY
CAT BENGALURU BENCH, BENGALURU AND ALLOW OA
170/540/2022 FILED BY THE PETITIONERS BEFORE CAT
BENGALURU BY GRANT OF PRAYER MADE THEREIN ETC.

     THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
G.NARENDAR J., MADE THE FOLLOWING:

                                 ORDER

Heard the learned counsel for the petitioners and the

learned CGC.

2. The applicants who are holders of civil posts in the

Ministry of Defence working in the 'Machinist' trade in 515

Army Base Workshop at Bengaluru, had approached the

Tribunal being aggrieved by the show cause notices issued by

the respondent calling upon them to show cause as to why the

promotions given to them by proceedings as per DO Part II

Serial No.30/IND dated 09.03.2011 (applicants - 1 to 12) and

DP Part-II No.46/IND dated 27.04.2011 (applicants - 13 and

14) respectively, should not be reversed in view of the order

passed by this Court in a petition filed by the respondents and

involving employees who are similarly situated as the

petitioners.

WP No. 25943 of 2022

3. The facts and the issues have been considered by the

coordinate bench while allowing the writ petition

Nos.31240/2015 and another connected petition, the

coordinate bench while allowing the petitions preferred by the

respondents has observed in paragraphs 6, 7, 8, 9, 10 and 11

as under:

"6. The dispute arose only in the year 2008. A letter was issued by the Headquarters, Base Workshop Group EME and on account of the aforesaid letter, the trade of Tool maker was treated as a separate trade for the purpose of promotion for promoting the employees as per common seniority list. Based upon the aforesaid letter, the promotion order was issued on 28th March 2011 promoting large number of persons, who were junior in the consolidated gradation list. The promotions of juniors in the consolidated gradation list was challenged before the Tribunal.

7. The undisputed facts make it very clear that so-called juniors promoted in the year 2011 were not impleaded as respondents before the Tribunal. The basic question in the present cases is, whether after the enactment of Recruitment Rules in the year 2006, after the various trades were merged as stated aforesaid, i.e., after enactment of Corps of

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Electronics and Mechanical Engineers (Industrial) Recruitment Rules, 2006, can the Department promote persons on the basis of seniority list existing prior to the merger of the trades.

8. Learned counsel for the parties have fairly submitted that there was no amendment to the Recruitment Rules after 2006 and as per the Recruitment Rules, 2006, promotions were to be made on the basis of the unified gradation list and the same has not been done.

9. It is also an undisputed fact that on account of order of promotion dated 9th March 2011, the persons, who were junior in the unified list, have been promoted and the Tribunal in paragraphs-14 to 17 has held as under:

"14. It seems that the grade structure stood modified w.e.f. 01.01.2006 and the merger of trade became effective on 18.02.2006. Promotion was effected in respect of trade prior to the merger accordingly and the promotion was given to persons taking into account the vacancies available in specific trade prior to the merger even though they were juniors to applicant in the combined Seniority list. The issue therefore is whether subsequent to merger of different trades into one and preparation of a combined seniority list, it is

WP No. 25943 of 2022

justified to give promotion taking into account vacancy position and position in the original trade completely ignoring their relative position in the combined seniority list. In this context the Hon'ble Apex Court in Civil Appeal No. 4483-85/2010 S. Sivaguru v. State of Tamil Nadu reported in (2013) 2 SCC (L&S) 725 and (2013) 7 SCC 335. Civil Appeals Nos. 4483-85 of 2013 with Nos. 4486-4504 of 2013, Contempt Petition (C) No. 133 of 2012 in Civil Appeal No. 4498 of 2013 and Contempt Petition (C) No. 145 of 2012 in Civil Appeal No. 4492 of 2013, decided on May 7, 2013, held that classification/differential treatment based on birthmark that stood obliterated after integration of officers coming from different sources into a common cadre/category, would be wholly unjustified and discriminatory. Para 62 of the said judgment states:

"The birthmark was obliterated on the merger of the post of Leprosy Inspector with Health Inspector Grade I. There was no justification of putting Health Inspector Grade IB in the pay scale of Rs. 1200- 2010, whilst Health Inspector Grade IA was placed in the pay scale of Rs. 1350-

220. At the time of integration, both the categories had to be given the same pay

WP No. 25943 of 2022

scale i.e, Rs. 1350-2200. In this respect, the principle of law laid down by this Court, time and again, is that a classification based on the birthmark that stood obliterated after integration of officers, coming from different sources into a common cadre/category, would be wholly unjustified and discriminatory. This principle was relied upon by this Court in B. Manmad Reddy wherein this Court reiterated the observations of this Court in para 5 of Roshan Lal Tandon v. Union of India : (AIR p. 1893)"

14. In Civil Appeal No. 933-35 of 2004 with Nos. 937-39 of 2004, decided on February 17, 2010 B. Manmad Reddy v. Chandra Prakash Reddy reported in (2010) 3 SCC 314 in Para 3, 16 & 17 the Hon'ble Apex Court held as follows:--

"3. The short question that falls for consideration and that was argued at considerable length before us by the learned counsel for the parties is whether persons drawn from different sources and integrated into one class/cadre/category can be classified into separate categories for purposes of promotion on the basis of

WP No. 25943 of 2022

the source from which they were drawn.

The question is, in our opinion, squarely covered by the decisions of the this Court which we shall presently refer but before we do so, we may briefly set out the factual backdrop in which the controversy arises.

16. The ratio of the decision in Roshan Lal Tandon case 2 was reiterated by Their Lordships in the following words: (Triloki Nath cas1, SCC p. 38, para 44)

"44. The key words of the judgment are: 'The recruits from both the sources to Grade D were integrated into one class and no discrimination could thereafter be made in favour of recruits from one source as against the recruits from the other source in the matter of promotion to Grade C. By this was meant that in the matter of promotional opportunities to Grade C, no discrimination could be made between promotes and direct recruits by reference to source from which they were drawn. That is to say, if apprentice train examiners who were recruited directly to Grade D as train examiners

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WP No. 25943 of 2022

formed on common class with skilled artisans who were promoted to Grade D as train examiners, no favoured treatment could be given to the former merely because they were directly recruited as train examiners and no discrimination could be made as against the latter merely because they were promotes. This is the true meaning of the observation extracted above and no more than this can be read into the sentence next following: 'To put it differently, once the direct recruits and promotes are absorbed into one cadre, they form one class and they cannot be discriminated for the purpose of further promotion to the higher Grade C.' In terms, this was just a different way of putting what had preceded."(emphasis in original)

17. In the light of the above pronouncements, the Tribunal and the High Court were, in our view, justified in holding that Note 6 to Rule 3 was unconstitutional inasmuch as the same classified officers eligible for appointment against Class II category 1 posts depending upon whether they

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WP No. 25943 of 2022

were direct recruits or promotes. Such a classification based on the birthmark that stood obliterated after integration of officers coming from different sources into a common cadre/category would be wholly unjustified and discriminatory.

15. The above observations, of the Hon'ble Apex Court clearly indicates that when there is merger of cadres, the Original cadre stands obliterated and it would be unjustified to taken into account, the classification based on the birthmark which becomes obliterated after the integration of the cadres. In this case the respondents in the process of restructuring of trades merged five specific trades into one trade and also prepared a combined Seniority list following the merger of the trades. Once the integration took place and a combined Seniority list prepared, the original trades ceased to exist for all purposes. Therefore, after a lapse of four years awarding promotion to persons belonging to a particular trade and based on availability of vacancy in that particular trade prior to the merger doesn't appear and justified. It also tends to nullify the combined seniority list because persons junior in the seniority list have been given promotion ignoring the seniors and

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WP No. 25943 of 2022

have become thereby. Apparently the situation cropped up following 6th Pay Commission recommendation, when the two grade structure was modified to 4 grade structure w.e.f. 01.01.2006 where as the merger took place on 18.02.2006. However once the authorities have merged the cadres into one, it would not be appropriate to consider any action based on the original cadre and the availability of vacancy therein and to effect the promotion to some completely ignoring their position in the combined seniority list. Any promotion in terms of the new grade structure could have been based on the merged cadre and should have been given effect from 18.02.2006 taking into consideration the combined seniority list so that no anomalous situation was created. The stand taken by the respondent authority in their letter dated 29.03.2011 saying that promotion shall be applicable to the individual trades before merger of the trades w.e.f. 18.02.2006 is therefore unjustified. Once the merger of the trades has taken place, all subsequent actions relating to availability of vacancies and promotion there should be based on the combined seniority list following the merger and not by reverting back to the original position in respect of specific trade only.

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WP No. 25943 of 2022

16. After detail consideration of the whole issue, we are of the view that the action on the part of the respondents in promoting persons junior to the applicants in the considered seniority list and based on vacancies in a specific trade prior to the merger is unjustified and is discriminatory and has affected the interests of applicants who were senior in the combined seniority list adversely. Therefore we hold that the applicants are also entitled to get promotion to the highly skilled grade at par with their juniors and from the same date on which the juniors were promoted. They are also entitled to receive all consequential benefit thereon including seniority.

17. Accordingly, the O.A. is allowed. The respondents are directed to issue necessary order giving promotion to the applicants in term of the above direction within a period of three months from the date of receipt of the order. No order as to costs."

10. In the considered opinion of this court, the Tribunal should not have ordered promotion of the applicants to the highly skilled posts at par with the persons promoted prior to 9th March 2011. There are large number of persons senior to the present applicants who are before this court. However, this

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court at the same time is not putting a stamp of approval in respect of promotion done by order dated 9th March 2011. In fact, the order dated 9th March 2011 is contrary to the Recruitment Rules. Once the unified list was issued, all promotions were required to be done based on the unified list only.

11. Resultantly, the orders passed by the Tribunal are hereby set aside. The petitioner/Union of India shall be free to review all promotions done after the year 2006 keeping in view the statutory Recruitment Rules known as Corps of Electronics and Mechanical Engineers (Industrials) Recruitment Rules, 2006. It is needless to mention that in case any situation arises for reversion of an employee, the petitioners shall issue proper show cause notice before reverting any employee while finalizing the promotions keeping in view the Recruitment Rules. Resultantly, the orders passed by the Tribunal stand set aside."

4. From a reading of the above it is apparent that the

coordinate bench has clearly permitted the review of all

promotions done after the year 2006. It is the case of the

petitioners that their promotions are against vacancies that

arose prior to 2006, but the fact remains that the order of

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promotion is made in 2011, which order in respect of similarly

situated persons was the subject matter in the earlier round of

litigation before this Court and the coordinate bench having

observed and held as stated supra, the Tribunal was right in

rejecting the challenge to the show cause notices. Accordingly,