DR. K.B.S. RAJAN, JUDICIAL MEMBER
1. The applicant initially joined the respondents as a daily wage labourer on 10-05-1972 and was accorded temporary status on 06-02-1976 and by an order dated 18-06-1981, vide Annexure A-1, he was promoted as Painter in the grade of Rs 260 - 400 (which the applicant refuses to recognize as a promotion). He was next promoted as Painter Grade II in the grade of Rs 330 - 480 on 01-04-1983, vide Annexure A-4 and later on, he was further promoted in the grade of Rs 1320 - 2040 (Revised to Rs 4,500 - 7000) w.e.f. 01-01-1984, vide Annexure A-5.
2. In respect of the initial appointment and the pay scale attached to it, the applicant moved the labour court in C.P.C. No. 3/84, under Sec. 33C (2) of the Industrial Disputes Act, in which he had claimed that he should have been fixed in the scale of Rs 360 - 400 since he was engaged in a skilled post and claimed the difference as arrears of salary from 10-11-1972 to 05-10-1983. The finding of the Labour Court included that there was sufficient material on record to show that the petitioner was employed as a painter and he got temporary status on and from 10-11-1972. The finding also included that the applicant was entitled to the salary in the scale of Rs 260 - 400 from 10-11-1972 onwards. Thus, the claim of the applicant having been allowed by the Labour Court, the matter was taken up before the High Court by the respondents in O.P. No. 5572 of 1986 - L, which came to be decided on 31-07-1986, vider Annexure A-3. In this judgment, the High Court, after extracting the counter of the respondents filed in the labour court, the findings and conclusions of the Labour court, held inter alia, "The labour court according to me has rightly held that the first respondent has been treated by the Railway Authorities as a Painter right from the inception and therefore, is entitled to the benefits that post would bring in to the holder of that post."
3. In 2008, the applicant had filed OA No. 392 of 2008 wherein he had challenged the order of the respondents in transferring him from Painter to Tech. II on the ground that the earlier post of painter assigned to him was an ex cadre post. This was contested by the Respondents and ultimately, vide Annexure A-7 order dated 20-10-2008, the Tribunal allowed the OA holding as under:-
"18. In view of the above, the O.A. is allowed. Keeping in view the decision of the Labour Court as upheld by the High Court that the applicant has, right from inception (from casual labour period) been functioning as Painter, coupled with the fact that he has been granted promotion in that ladder of painters and allowed to continue till date, it is declared that the post he has been holding cannot but be treated as a cadre post. Consequently, Annexure A-1 order in so far as the same relates to the applicant is concerned, is quashed and set aside. Respondent shall allow the applicant to continue as painter only."
4. The Government had introduced Modified Assured Career Progression Scheme (MACP for short), replacing the earlier ACP Scheme and the said MACP scheme provided for financial upgradation upto three stages in case of non promotion, subject to certain conditions specified in the Scheme. The applicant preferred a claim for the third Financial Upgradation on the basis of his initial appointment in 1972, first promotion in 01-04-1983 (Annexure A-4) and second promotion w.e.f. 01-07-1985 (Annexure A-5) and thus, the applicant was not afforded the third promotion within thirty years of his career. Annexure A 9 representation dated 23-11-2009 refers. In response to the above representation, respondents have issued the impugned Annexure A-10 order dated 04-01-2010 inter-alia stating as under:-
"While working as Khalasi, you are promoted as Helper/I Basic Brush Hand on scale Rs.210-290 with effect from 11.6.1980.
Due to re-classification, you were promoted as Grade III in scale Rs.3050-4590 (Vth CPC) and allow to work as Painter/Gr.III on ex-cadre basis with effect from 22.6.81. Thereafter promoted as Painter/Gr.II in scale Rs.4000-6000 (Vth CPC) against re-classified post from 01.04.83 and Painter/Gr.I in scale Rs.4500-7000 (Vth CPC) with effect from 1.1.84 due to re-classification. You have been posted as Tech/Gr.II/Power (cadre) in scale Rs.4000-6000 and retained as Painter/Gr.I with effect from 21.7.99 on ex-cadre basis.
Thereafter you were posted as Tech/Gr.I/Power cadre in scale Rs.4500-7000 vide his office order No.J/E-13/2007. But you have not carried out the post and debarred for promotion for one year with effect from 2.4.2007 vide this office order No.J/E-08/2008 dated 23.02.08.
When your case is considered for the benefits under MACT, you have completed 30 years of service on 24.11.2007 in which your got three promotions as detailed above.
After engagement of Group D in Railway you have got first promotion as Tech/Gr.III (Painter/Gr.II) with effect from 22.6.81. Thereafter your promoted as Painter/Gr.II with effect from 1.4.83 and Painter/Gr.I with effect from 01.01.84 due to reclassification duly considering your seniority in cadre post of Tech/II/Power with effect from 21.7.1991.
Therefore in total you had enjoyed three promotion.
In as much as you have enjoyed three promotions in your Railway services, no financial upgradation under MACP scheme, 2008 is admissible for you on the plea that you have spent ten years continuously in the same grade pay.
Therefore, your request for grant of financial upgradation under MACP scheme is not agreed to."
5. Referring to the Labour Court judgment (referred to above), the applicant again represented for review of the decision contained in Annexure A-10, vide Annexure A-11 representation dated 20-01-2010. He has also filed this OA claiming the following reliefs:-
(a) Call for the records leading to Annexures A-10 and A-12 and to quash the same.
(b) Declare that the applicant is entitled to be considered and granted the benefit of third financial upgradation under the MACP scheme in the pay band of Rs.9300-34800 with a grade pay of Rs.4200 w.e.f. 1.9.2008.
(c) Direct the respondents to grant the applicant all consequential benefits of arrears of pay and allowances arising therefrom.
(d) Award interest on the delayed payment of amounts legally admissible to the applicant.
(e) Award exemplary costs to be paid by the respondents to the applicant, incidental to this application.
6. Respondents have contested the O.A. They have contended that vide Annexure R-1 letter dated 04-02-2010, the applicant was informed that the award of Labour Court is having limited scope of computing wages due. The award would not confer any right on an employee for claiming regularization in the skilled grade. The regular appointment of the employee is only in the unskilled grade which is not altered by any court order. They have reiterated that there are already three promotions granted to the applicant (i.e. Annexure A-1, Annexure A-4 and A-5 referred to above.)
7. The applicant had filed his rejoinder, enclosing a copy of the service book. He had reiterated his contentions contained in the O.A. Additional reply had been filed by the respondents enclosing a copy of para 159 of the IREM and also a copy of the Railway Board circular dated 20-02-2010.
8. Counsel for the applicant took us through the labour court order, the judgment of the High Court and of this Tribunal to contend that once the Labour court and this Tribunal have held the status of the applicant, and once the pay scale right from the beginning had been 260-400, there is no question of the first promotion as per Annexure A-1, which also contained the same pay scale. Thus, the Annexure A-4 order promoting the applicant to Painter Grade. II from 01-04-1983 is the first promotion, the second being in 1984. In that case, the applicant is entitled to be considered for the third MACP.
9. Counsel for the respondents argued that the initial appointment of the applicant was only as a casual wager and that on the grant of temporary status, the applicant was placed in the regular pay scale. His initial appointment as a daily wager did not alter, though the pay had been held to be in the scale of Rs.260 - 400 and that his engagement was held to be from 1972. The applicant qualified in 1981 in the trade test for promotion to the post of Painter and accordingly he was promoted as a Painter vide Annexure A-1. Thus, this was the first promotion, and later he was granted two promotions vide Annexure A-4 and A-5. Hence, the applicant having been afforded three promotions, there is no scope to extend the benefit of the MACP Scheme. The counsel further argued that in so far as the decision by the Labour Court/High Court and that by the Tribunal referred to by the counsel for the applicant, the Labour Court decided only the fact whether the job performed by the applicant at the material point of time was one coming under the unskilled or skilled character for the purpose of ascertaining the entitlement to a certain pay scale and having rendered the finding that the job was one coming under skilled, the labour court awarded that the applicant was entitled to the higher scale of pay of Rs 260 - 400. The lower court had neither considered the question as to whether the appointment of the applicant in 1972 was one of regular nature much less held that the post held by the applicant prior to 1981 was one of Painter on regular basis. All that it decided was about the pay scale admissible to the nature of the job performed by him. As regards the decision by the Tribunal, the same relates to the fact whether the post held by the applicant is one of cadre or ex cadre post and the definite finding was that the post is one of cadre post. Thus, none of the judicial forum considered whether the applicant was initially appointed as a regular painter, in which case only his first promotion would be the one granted to him in 1984 (vide Annexure A-4) but that was not the case here. At this juncture the counsel has taken us through the relevant portion (Para 159) of IREM filed along with the additional reply and stated that the method of recruitment for Skilled Artisan carrying the erstwhile pay of Rs 950 - 1500 is as under:-
"159(1) The vacancies in the category of Skilled Artisans Grade III in scale Rs.950-1500 in various Engineering Departments will be filled as under:
(i) 25% by selection from course completed 'Act Apprentices'. ITI passed candidates and Matriculates from the open market; serving employees who are course completed Act Apprentices or ITI qualified could be considered against this quota allowing age relaxation as applicable to serving employees.
Note: Act Apprenticeship/ITI in the relevant trade is the only qualification and no other qualification is acceptable.
(ii) 25% from serving semi-skilled and unskilled staff with educational qualification as laid down in Apprentices Act; and
(iii) 50% by promotion of staff in the lower grade as per prescribed procedure."
10. The counsel submitted that if the appointment of the applicant as painter is not by way of promotion but as a direct recruitment, then he ought to have been possessing the requisite qualification as provided in the Apprentices Act, whereas, the applicant does not possess the same. Instead, his case falls in the other category of promotion in that he was functioning in the lower grade and had participated in the trade test and thus was promoted as per the prescribed procedure.
11. Arguments were heard and documents perused. The entire case clings on the fact whether the initial engagement in 1972 as painter is one of promotion or direct recruitment and is on regular basis.
12. Counsel for the applicant argued that since the initial pay scale itself was Rs 260 - 400 right from 1972 as per the award of the labour court, which had been upheld by the high Court, there is no question of Annexure A-1 order being construed as a promotion to the applicant. For this purpose, the counsel relied upon the decision of the Labour Court as upheld by the High Court, vide Annexure A-2 and A-3.
13. The Labour Court did hold that the applicant had been engaged as a painter and was granted temporary status. It's finding was to the extent that the initial engagement was from 1972 and the his job was one of skilled character, for which the pay scale is Rs 260 - 400. There is no quarrel upto this part. But the question is whether the applicant was appointed as painter on 'regular basis' in 1972 in which case alone Annexure A-1 order cannot not be treated as an order of promotion. Admittedly, the temporary status was initially granted to the applicant w.e.f. 06-06-1976 and later on the same was advanced to 10-11-1972. It is trite that temporary status is granted only when the post held is not one of regular in nature. Thus, it cannot be stated that the applicant at the very initial stage was appointed as a painter on regular basis. He having participated in the Trade Test and qualified in the said test after which he was appointed as a regular painter vide Annexure A-1 would only go to show that his appointment as Painter comes under the category of promotion envisaged in para 159(1)(iii) of the IREM. It is not the case of the applicant that he fulfilled the qualification condition for direct appointment as Painter as early as in 1972. All that the Labour Court decided, as rightly contended by the counsel for the respondents is that the functional responsibilities attached to the applicant warranted the same to be held as one of skilled character and what is paid to the regular skilled artisan should have been paid to him. This benefit under this Award of the Labour court could be extended only as to the date of induction in service (1972 and not 1976) and the pay scale to which the applicant was entitled to (260-400 and not Rs 196 - 232). The scope of the award cannot be extended to the extent that the appointment of the applicant in 1972 was one of regular in nature and as a painter in the skilled grade. Thus, the award of the Labour Court as upheld by the High Court is of no help to the applicant to support his contention that his initial appointment being in the grade of Rs 260 - 400, Annexure A-1 order cannot be considered as a promotion.
14. One aspect has to be mentioned at this juncture. The Respondents have annexed copy of para 159 of the IREM. This is the provision as per 1989 Edition of the IREM. The provisions contain the pay scale of Rs 950 - 1500 which is the revised scale to the earlier pays scale of Rs 260 - 400 and pertains to the period of 1986 and thereafter. It is presumed that the qualification requirement for direct recruitment as in para 159 would have been existing even prior to 1989 as the applicant has not produced any rule pertaining to 1972 or thereafter, with any provisions of which varied from para 159 of the IREM.
15. Once the Annexure A-1 order is considered as the first promotion of the applicant, Annexure A-4 and A-5 afforded the second and third promotion, thereby, there is no scope for MACP being pressed into service in the case of the applicant.
16. The OA being devoid of merits, is therefore, dismissed. No costs.