Judgment:
(Hon'ble Mr. K. George Joseph, AM)
In this OA, the applicant prays for a direction to the respondents at Sl Nos.1-4 to treat the promotion granted to him as Assistant Foreman in the 4 Tier Structure w.e.f 11.3.2003 to be treated as promotion to the post of Senior Foreman in the 3 Tire Structure since there was vacancy and he was eligible for the same.
2. The facts of the case briefly stated, the applicant joined the Southern Naval Command in the cadre of Chargeman-I, re-designated later as Foreman on 26.7.99. He passed the qualifying test for Senior Foreman on 26.12.2001. On completing 3 years service as Foreman he was eligible to be promoted as Senior Foreman w.e.f 1.1.2003. Meanwhile, Govt of India on the recommendation of the 5th Pay Commission introduced 4 tier structure for the Technical Supervisory category in different establishments on 26.12.01. The table below shows the comparative structure of the Technical Supervisor cadre before 26.12.01 and after 26.12.01.
Before 26.12.01 After 26.12.01
Senior Chargeman(Rs.5000-8000) Chargeman II (Rs.5000-8000)
Foreman (Rs.5500-9000) Chargeman I (Rs.5500-9000)
Assistant Foreman (Rs.6500-10500)
Senior Foreman (Rs.7540-11,500) Foreman (Rs.7450-11,500)
3. The applicant's representation for promotion to the post of Sr.Foreman in the old structure was turned down on the ground that the 4 Tier Structure (for short 4TS) had been introduced w.e.f 26.12.01. The applicant was promoted as Assistant Foreman on 25.3.03 and as Foreman on 18.1.06. Meanwhile on 18.5.05 the Integrated Head Quarters of Ministry of Defence, Naval decided that till notification of new RRs, for promotions to the cadre of Foreman (erstwhile Sr.Foreman) should continue as previously in the 3 Tier Structure (for short 3TS). The representations of the applicant dated 22.11.06 and 10.4.08 for promotion to Foreman in the 4TS w.e.f 11.3.03 have not elicited any reply. Hence this O.A is filed.
4. The counsel for the applicant vehmently argued his case. The post Sr.Foreman was lying vacant since 22.4.99. As on 26.7.02, the applicant was the only qualified candidate for the post, having passed the qualifying test for Sr.Foreman and completed the minimum period of 3 years qualifying service. He was not promoted only because the 4TS was introduced on 26.12.01. But as mandated in the order of introduction of 4TS in Annx.A3, new Receuitment Rules (for short RRs) were not framed. De-horse the RRs the applicant was promoted as Assistant Foreman alongwith others on 25.3.03 as a one time measure with the approval of the UPSC. As new RRs could not be notified and delay was anticipated, the Integrated Headquarters of Ministry of Defence decided on 18.5.2005 that till notification of new RRs for promotion at the level of Foreman (erstwhile Sr.Foreman) should continue as previously in the 3TS with old RRs. Annx.A16 refers. Many Chargemen-I equivalent to Foreman (old structure) were promoted as Foreman in the 4 TS equivalent to Sr.Foreman in the old structure for which promotion the applicant was pleading for himself all along. One Chargeman-I, was promoted directly as Foreman and another without completing 3 years as Assistant Foreman. Even after the introduction of 4TS on 26.12.01, Smt. O.C.Alice (ST), Sr.Chargeman(AL) was promoted as Foreman (AL) in the 3TS on 26.2.02. Annx A25 refers. The respondents have adopted a highly discriminatory attitude towards the applicant and the nonfeasance and malfeasance on the part of the respondents are arbitrary, illegal and violative of Article 14 of the Constitution of India.
5. The respondents contested the OA. The applicant could not be promoted as Foreman (AS) in 2003 although the post was vacant, since the 3TS was replaced by 4TS in 2001. In the absence of new RRs eligible persons were promoted as AFMs in consultation with the UPSC. The applicant has been given two promotions from Chargeman-I to AFM on 11.3.03 and from AFM to Foreman on 18.1.06. Promotion once granted cannot be converted to another grade.
6. Heard the learned counsel for parties and perused the documents.
7. Admittedly there was a vacancy of Sr.Foreman and the applicant was the lone eligible candidate for promotion to that vacant post on 1.1.03 but for the stand of the administration that the 4TS was introduced on 26.12.01. At this point, to the extent it is visible, the stand of the administration is in the right perspective and in full consonance with the spirit of the recommendation of the 5th Pay Commission to provide optimum opportunity for promotion to the Technical Supervisory Cadre. Even in the absence of the introduction of the 4TS the right of the applicant is limited to consideration for promotion if he is eligible for consideration and if there is a vacancy of the post to which he can be promoted, because under no circumstances an employee has a vested right for promotion. With the stand taken that the 4TS is introduced the right of the applicant for consideration for promotion gets extinguished.
8. One can feel sympathy with the applicant whose chance of promotion which was within grasp was snatched away by the 4TS which entered the scene with the noble intention of maximising promotional opportunities to the employees in the Technical Supervisory cadre all over India. Whenever a new measure is introduced it is possible that some may face the slip between the cup and the lip. The affected persons have to grin and bear it and the administration cannot be faulted for this situation.
9. But the administration compromised with the spirit of 4TS in its implementation when promotions were made to the AFM without RRs. As admitted by the respondents, Annx.A8 order is not the RRs but order of granting promotion to the grade of AFM in the absence of RRs as one time measure which were issued based on the approval of UPSC for filling up of newly created posts. Without RRs there is no regular promotion. Whatever was done was a stop gap arrangement. In OA No.656/03 and OA 842/03, heard together on the issue of 4TS this Tribunal declared on 13.4.2006 as under:
" We, therefore, declare that these promotions which have been effected in accordance with Annx.A2 order of the respondents dated 10th October 2002 are dehors the Recruitment Rules and have to be treated as ad hoc or temporary till the finalisation and notification of Recruitment Rules. The respondents shall formulate and notify revised Recruitment Rules in keeping with the spirit of the recommendations of the 5th Central Pay Commission to provide optimum promotional opportunities for the supervisory cadre and notify such Recruitment Rules within a period of four months from the date of receipt of a copy of this order and till such Recruitment Rules are finalised, the promotions made to these grades would be deemed as temporary/adhoc. In the light of the above discussion we are not quashing any of the impugned orders which shall all remain subject to the directions above. There is no order as to costs."
As directed by this Tribunal, the administration was duty bound to notify RRs within 4 months or extended time, if extension was ever sought and given.
10. Caught in a quagmire of delay and incompetence, the administration takes an about-turn in introducing the 4TS by directing to fall back on the 3TS as far as promotion to the level of Foreman is concerned. As a result the newly introduced level of AFM become no nest till new RRs are notified. Those who gained from the introduction of the new level of AFM retained it. The complaint of those who suffered because of the introduction of the level of AFM assumes the colours of discrimination and insensitivity on account of malfeasance or non-absence as the case may be in the eyes of the sufferers. The Administration assumes that it can do no wrong, whatever it does is right and it should accepted as such. It holds that the 4TS is introduced on 26.12.2001 and assumes that it is implemented. The 4TS is implemented only when regular promotions are made to every level in the structure in accordance with the new RRs. From 26.12.2001 till the time new RRs are notified the Technical Supervisory Cadre is in a period of transition from 3TS to 4TS. The 3TS and 4TS have to be considered as two wholly distinct bodies with 3Tiers and 4Tiers respectively. It is not desirable to tinker with the 3TS as far as RRs are concerned. For smooth and flawless transition to the 4TS, a set of four new RRs are to be framed taking into account the introduction of the changes in the nomenclature of the levels and qualifications and experience for promotion to each level. The administration failed to see this elementary position in 2001 and continued in this state of affairs till 18.5.2005 when it fell back upon the 3TS. This is a classic example of good intention of the Government getting killed in its implementation. It is bad that even today almost 8 years since the introduction of the 4TS, it is not implemented. Vide Annexure A25 the order Smt. O.C. Alice (ST) Sr.Chargeman in the 3TS was promoted as Foreman in the 3TS in the pay scale of 5500-9000 on 26.2.02 contradicting the stand taken by the Administration that the 4TS was introduced on 26.12.01 on which ground the applicant was refused promotion as Sr. Foreman in the 3TS. In doing so, the administration practiced discrimination and violated Article 14 of the Constitution. There can be other cases of such promotions. After having made a mess in implementing the 4TS, the administration has to clear it. It would have made sense, had the administration continued promoting eligible persons to the existing vacancies in accordance with the existing RRs in th 3TS and the newly created posts and newly arisen vacancies were filled-up on an ad hoc basis pending notification of the RRs and made strenuous efforts for getting the RRs notified in the shortest time possible. This would have ensured a smooth transition to the 4TS. The purpose of the 4TS was to increase opportunities for promotion to the Technical Supervisory Cadre and not to take away the opportunities for promotion in the 3TS. In the instant case, the applicant was given two promotions but it remains a fact that he could have got promotion as Sr.Foreman in the 3TS equivalent to Foreman in the 4TS, 3 years back, had he been promoted directly from Foreman to Sr.Foreman without passing through the level of AFM as was done in the case of certain officers [Annx.A19(2) and A18(4)] refer. The applicant is made to suffer a loss of 3 years of service as Foreman in the 4TS. He became an unintended victim of the good intention of giving more promotional opportunities. The applicant would have no case if promotions were made according to new RRs and without discrimination.
11. The sixth respondent's case is that he was senior to the applicant in the cadre of Foreman in 3TS but he will becomes his junior in the cadre of Sr.Foreman in the 3TS if the applicant is promoted as per his prayer and jeopardise his chance for promotion to the post of Civilian Technical Officer. This contention is too hypothetical at this stage and therefore without merit. Moreover, it will be grossly unfair not to promote an eligible candidate to an existing vacancy for fear of affecting the chance for promotion of a person in another wing, some time in future. It is also an admitted fact that the applicant passed the departmental qualifying test one year before the sixth respondent. Therefore, coupled with the fact that there is an existing vacancy, the applicant is better placed for earlier promotion than the sixth respondent.
12. In the context of the discussion above, the O.A is partly allowed. The respondents are directed to dispose of the representations at Anns.A21 and A22 in a fair, just and non-discriminatory manner keeping in mind the spirit of 4TS within a period of 3 months from the date of receipt of a copy of this order, treating the said Annexures still pending even if they have been disposed of.
13. No order as to costs.