Union Of India vs Bhartendu Gaur
2022 Latest Caselaw 12572 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
         (1) D.B. Civil Writ Petition No. 3840/2021

1.    Union Of India, Through The Secretary, Ministry Of
      Defence, Raksha Bhawan, New Delhi.
2.    The Commander Works Engineer (Air Force), Bikaner.
3.    The Garrison Engineer (AF), Nal Bikaner, Rajasthan.
                                                                ----Petitioners
                                 Versus
Bhartendu Gaur S/o Shri Dev Saran, R/o Behind Orphanage,
Vivek Nagar, Bikaner (Presently Working On The Post Of HS-I In
The Office Of Ge (AF) Nal Bikaner (Rajasthan)
                                                              ----Respondent
                           Connected With
         (2) D.B. Civil Writ Petition No. 3847/2021
1.    Union Of India, Through The Secretary, Ministry Of
      Defence, Raksha Bhawan, New Delhi.
2.    The Commander Works Engineer (Air Force), Bikaner.
3.    The Garrison Engineer (AF), Nal Bikaner, Rajasthan.
                                                                ----Petitioners
                                 Versus
1.    Bharat Kumar Pant S/o Late Shri Anand Ballabh Pant, R/o
      House No. 759, Bhagwan Pura Industrial Area, Rani
      Bazar, Bikaner.
2.    Kishan Ram S/o Late Shri Alphu Ram, R/o Village Lai,
      Post Office Kheduli, Via Merta Road, District Nagaur.
3.    Laxmi Narayan S/o Late Shri Ramlal, R/o Kamal Niwas,
      Bramano Ka Mohalla, Bhinasar, Bikaner, Rajasthan.
                                                              ----Respondents
         (3) D.B. Civil Writ Petition No. 3857/2021
1.    Union Of India, Through The Secretary, Ministry Of
      Defence, Raksha Bhawan, New Delhi.
2.    The Commander Works Engineer (Air Force), Bikaner.
3.    The Garrison Engineer (AF), Nal Bikaner, Rajasthan.
                                                                ----Petitioners
                                 Versus


                  (Downloaded on 21/10/2022 at 08:53:55 PM)
                                          (2 of 11)                 [CW-3840/2021]


1.     Lalita Chhimpa W/o Late Shri Sampat Lal Chhimpa, R/o
       Chhimpo Ka Mohalla, Ganga Shahar Road, Laxmi Plaza
       Cinema Ke Samne, Bikaner
2.     Manoj Chhimpa S/o Late Shri Sampat Lal Chhimpa, R/o
       Chhimpo Ka Mohalla, Ganga Shahar Road, Laxmi Plaza
       Cinema Ke Samne, Bikaner. (LRS Of Shri Sampat Lal
       Chhimpa S/o Late Shri Moda Ram)
                                                                ----Respondents


For Petitioner(s)        :     Mr. Muktesh Maheshwari
For Respondent(s)        :     Mr. S.K. Malik



           HON'BLE MR. JUSTICE SANDEEP MEHTA
             HON'BLE MR. JUSTICE FARJAND ALI

                             JUDGMENT

Date of Pronouncement                  <><><>                   20/10/2022
Judgment Reserved on                   <><><>                   14/09/2022




BY THE COURT : PER HON'BLE MEHTA, J.

1. These three writ petitions involve common questions of facts

and law and hence, the same have been heard and are being

decided together by this single judgment.

2. The Union of India, Ministry of Defence, has approached this

Court through these writ petitions filed under Article 227 of the

Constitution of India for questioning legality of order dated

10.01.2020 [(D.B. Civil Writ Petition No.3840/2021 (Union of

India & Ors. Vs. Bhartendu Gaur)], order dated 20.12.2019 [(D.B.

Civil Writ Petition No.3857/2021 (Union of India & Ors. Vs. LRS of

Sampat Lal Chhimpa)] and order dated 10.01.2020 [(D.B. Civil

Writ Petition No.3847/2021 (Union of India & Ors. Vs. Bharat

(3 of 11) [CW-3840/2021]

Kumar & Ors.)], passed by the Central Administrative Tribunal,

Bench Jodhpur, accepting the original applications filed by the

respondents.

3. Brief facts relevant and essential for disposal of the writ

petitions are noted hereinbelow:-

Details of appointment and promotion of the respondents

under the respondent-The Commander Works Engineer (Air

Force), Bikaner, are mentioned hereinbelow in a tabular form for

the sake of ready reference:-

S.No. Name              Post                   Date    of Promotion/
                                               Appointme Direct
                                               nt         appointment
1.     Bhartendu        A.)    Initially 21.09.1983 Direct
       Gaur             appointed on                Appointment
                        the post of
                        DES
                        B.)            06.07.1994
                        Redesignated
                        to the post of
                        DES to Fitter
                        General
                        Mechanic (SK)
                        without   any
                        change      in
                        payscale.
                        1st ACP granted on 09.08.1999                    on

completion of 12 years of service.

Fitter General 08.04.2002 Promoted Mechanic (HS from the post II) of Fitter General Mechanic (SK) 2st ACP granted on 21.09.2007 on completion of 24 years of service.

Modified ACP to MACP w.e.f. 01.09.2008 (No benefit granted to the respondent writ petitioner)

2. Sampat Lal A.) Initially 30.03.1987 Direct Chhimpa appointed on Appointment the post of

(4 of 11) [CW-3840/2021]

DES B.) 06.07.1994 Redesignated to the post of DES to Fitter General Mechanic (SK) without any change in payscale.

Fitter General 23.03.1995 Promoted Mechanic (HS from the post II) of Fitter General Mechanic (SK) Fitter General 31.01.2000 Promoted Mechanic (HS from the post I) of Fitter General Mechanic (HS II) Post of HS II and HS I were merged into category of HS w.e.f. 01.01.1996 Not entitled to grant of 1st and 2nd ACPS because of two promotions were given subsequently.

Modified ACPS to MACPS w.e.f. 01.09.2008 (No benefit granted to the respondent writ petitioner)

3. Bharat Kumar A.) Initially 22.02.1988 Direct appointed on Appointment post of Motor Pump Attendant B.) Post of w.e.f.

                     Motor    Pump 06.07.1994
                     Attendant was
                     redesignated
                     as       Pump
                     House
                     Operator and
                     further
                     redesignated
                     as       Fitter
                     General
                     Mechanic (SK)

C.) Promoted 02.08.1995 Promoted to the post of from the post FGM (HS II) of FGM (SK) D.) Promoted 31.01.2000 Promoted to the post of from the post

(5 of 11) [CW-3840/2021]

FGM (HS I) of FGM (HS II) Not entitled to grant of 1 and 2nd ACP st

because of two promotions were given subsequently.

Modified ACPS to MACPS w.e.f. 01.09.2008 (No benefit granted to the respondent writ petitioner)

4. Laxmi Narayan A.) Initially 24.02.1988 Direct appointed on Appointment post of Motor Pump Attendant B.) Post of w.e.f.

                       Motor    Pump 06.07.1994
                       Attendant was
                       redesignated
                       as       Pump
                       House
                       Operator and
                       further
                       redesignated
                       as       Fitter
                       General
                       Mechanic (SK)

C.) Promoted 26.06.1995 Promoted to the post of from the post FGM (HS II) of FGM (SK) D.) Promoted 07.01.2000 Promoted to the post of from the post FGM (HS I) of FGM (HS II) Not entitled to grant of 1 st and 2nd ACP because of two promotions were given subsequently.

Modified ACPS to MACPS w.e.f. 01.09.2008 (No benefit granted to the respondent writ petitioner)

5. Kishan Ram A.) Initially 25.05.1990 appointed on the post of Peon B.) Post of 21.01.1984 Peon was reclassified as Motor Pump Attendant C.) Post of w.e.f.

                       Motor    Pump 06.07.1994
                       Attendant was
                       redesignated
                       as       Pump



                                          (6 of 11)                       [CW-3840/2021]


                         House
                         Operator and
                         further
                         redesignated
                         as       Fitter
                         General
                         Mechanic (SK)

D.) Promoted 02.08.1995 Promoted to the post of from the post FGM (HS II) of FGM (SK) Not entitled to grant of 1 st and 2nd ACP because of two promotions were given subsequently.

Modified ACPS to MACPS w.e.f. 01.09.2008 (No benefit granted to the respondent writ petitioner)

4. Shri Sampat Lal Chhimpa promoted to the post of HS Grade-

II w.e.f. 22.03.1995, was further promoted as HS Grade-I w.e.f.

31.01.2000. The posts of HS Grade-II and HS Grade-I were

merged and redesignated as HS w.e.f. 01.01.1996 in the Pay

Scale of Rs.4,000-6,000/-. After the recommendations of the 5 th

Central Pay Commission, the cadre of Artisan Staff was

restructured vide letter dated 20.05.2003. Under restructuring,

the post of MCM (Master Crafts Man) was treated as HS and

placement of these employees working as HS, was made as MCMs

w.e.f. 01.01.1996. The 6th Central Pay Commission was introduced

in the year 2008 and was made effective from 01.01.2006. The

respondents adopted the MACP Scheme issued by the DOPT vide

OM dated 19.05.2009.

5. The Employer Authority after placing the respondent

employees in the cadre of MCM, treated them as having availed

three promotions and thus, the benefit of 3rd Financial Upgradation

(7 of 11) [CW-3840/2021]

under the MACP Scheme was denied to them. Aggrieved thereby,

the respondents herein approached the Central Administrative

Tribunal by way of the Original Applications which have been

allowed by the orders dated 10.01.2020, 10.01.2020 and

20.12.2019, which are assailed in these writ petitions.

6. Shri Muktesh Maheshwari Advocate representing the

appellant Union of India, drew the Court's attention to the

clarification letter dated 14.06.2010 issued by the Government of

India, Ministry of Defence and urged that it is clearly stipulated in

clause No.4 (i) of this letter that the post of Master Craftsman

(MCM), shall be part of hierarchy and placement of Highly

Craftsman of Highly Skilled Grade-I (HS Grade-I) in the grade of

Master Craftsman, will be treated as a promotion. Thus, he

contended that the respondents have already availed three

promotions and hence, they are not entitled to the benefit of the

Financial Upgradation under the MACP Scheme. He placed reliance

on the Hon'ble Supreme Court judgment in the case of Union of

India Vs. R.K. Sharma & Ors. reported in (2021) 5 SCC 579

particularly the observations made at para 11 wherein it was held

that the employees are entitled for Financial Upgradation under

MACPS only to the next Grade Pay and not to the Grade Pay of

next promotional post.

He submitted that the order passed by the Tribunal amounts

to granting benefit of Financial Upgradation to the respondent

employees on the Grade Pay of the next promotional post and

thus, the impugned orders are bad in the eyes of law and deserve

to be reversed.

(8 of 11) [CW-3840/2021]

7. Per contra, Shri S.K. Malik, learned counsel representing the

respondents, drew the Court's attention to the order dated

10.05.2018 passed by the Division Bench of this Court in [D.B.

Civil Writ Petition No.6061/2018 (Union of India & Ors. Vs.

Girdhari Lal Saini & Anr.)] wherein, it was held that merger of

the post of HS Grade-II into HS Grade-I, would require one

promotion to be ignored on account of merger of the Pay Scales of

the upgraded posts as recommended by the 6 th Central Pay

Commission. Shri Malik urged that this order of the Division Bench

was challenged by the Union of India by filing a SLP before the

Hon'ble Supreme Court which has been dismissed.

He also drew the Court's attention to the explanatory Note

dated 28.08.2009 issued by the Ministry of Defence as per which,

the HS workers have been placed at the Feeder category and the

next promotional post is of Master Craftsman. No further

promotional avenue is available to Master Craftsman. He

submitted that the Department, while issuing the MACP Scheme

has issued an illustrative chart wherein, the officer who is placed

in the Grade Pay of Rs.4,200/- on completion of 30 years of

service, would get the benefit of 3 rd ACP in the Grade Pay of

Rs.4,600/-. Shri Malik thus, submits that the judgment in the case

of Union of India Vs. R.K. Sharma & Ors. (supra), helps the

cause of the respondents because, no promotional avenue is

available to the Craftsmen given placement as MCMs and

resultantly, the Financial Upgradation of such Craftsmen has to be

made as per the MACP Scheme guidelines.

He urged that the view taken by the Tribunal while accepting

the original applications, is absolutely just and legal and the writ

petitions deserve rejection.

                                          (9 of 11)                 [CW-3840/2021]




8.   We    have    given     our     thoughtful         consideration   to   the

submissions   advanced at bar               and have gone through the

impugned orders and the material placed on record.

9. It is admitted that the respondent employees were initially

appointed as Diesel Engine Static (DES) (skilled). Though initially,

they were given two promotions as HS (Highly Skilled) Grade II

and then HS Grade I but later on, these two posts i.e. HS Grade II

and HS Grade I were merged and redesignated as HS w.e.f.

01.01.1996. With the merger of the posts, one promotion would

have to be ignored as has been held by Division Bench of this

Court in the case of Union of India & Ors. vs. Girdhari Lal

Saini & Anr. (supra) which view has been affirmed by Hon'ble

the Supreme Court. The respondent employees were given

placement in the Grade of MCM pursuant to restructuring of the

cadre of Artisan Staff.

No doubt, MCM is a promotional post from the post of HS but

as one of the earlier promotions was required to be ignored after

merger of the two posts as referred to supra, it is clear that the

respondents had been given only two promotions, first, from DES

to HS and the second, from HS to MCM.

10. Resultantly, by virtue of MACP Scheme, 2009, the

respondents were definitely entitled to the benefit of 3 rd Financial

Upgradation after completion of ten years' service on the post of

MCM. The fervent contention of Shri Maheshwari for assailing the

direction given by the Tribunal to this office was that the same is

in conflict with the observations made by Hon'ble the Supreme

(10 of 11) [CW-3840/2021]

Court in the case of R.K. Sharma (supra). He urged that the

Grade Pay of Rs.4,600/-, which has been granted by the Tribunal

to the respondents, is the Grade Pay of the next promotional post.

We find this argument of Shri Maheshwari to be fallacious.

It is not in dispute that the employees placed as MCMs do

not have any further promotional opportunity in the cadre and the

post of MCM is a stagnation post. There is no merit in the

contention of the petitioners that Grade Pay of Rs.4,600/- is

applicable to the next promotional post from the post of MCM

because no such promotional avenue is available in the rules.

Thus, the explanation issued by the Government of India,

Ministry of Defence in the letter dated 14.06.2010 is of no avail to

the petitioners.

As against this, the illustrations provided under the MACP

Scheme, 2009, attention whereto was drawn by Shri Malik,

learned counsel representing the respondent employees, clearly

manifests that the employee who gets second promotion in the

Grade Pay of Rs.4,200/- on completion of 23 years of service,

would be entitled to 3rd ACP on completion of 30 years of service

and such upgradation would be in the Grade Pay of Rs.4,600/-.

This precisely was decided by the Tribunal while accepting the

Original Applications submitted by the respondents.

11. Having appreciated the entire material available on record,

we are of the firm opinion that the conclusions drawn by the

Tribunal in the impugned order accepting the Original Applications

of the respondents are unimpeachable as the same are in

consonance with the MACP Scheme, benefit whereof was rightfully

sought for by the respondents.

(11 of 11) [CW-3840/2021]

12. The impugned orders do not suffer from any infirmity,

illegality or perversity whatsoever, warranting interference in the

supervisory writ jurisdiction of this Court.

13. Hence, the writ petitions fail and are dismissed as being

devoid of merit.

14. A copy of this order be placed in each file.

(FARJAND ALI),J (SANDEEP MEHTA),J

Devesh Thanvi/-

Powered by TCPDF (www.tcpdf.org)