A. R. Ramadasan vs Union Of India & Ors

K. V. Eapen, Member A

The applicant in the O.A had joined the Naval Armament Depot (NAD) Aluva as Ammunition Repair Labour (ARL) in 1987. He was promoted as Ammunition Mechanic Grade-II (AM –II) with effect from 04.06.1999. His next promotion is to the post of Ammunition Mechanic Grade I (AM-I). The method of appointment to AM-I is by passing the Departmental Qualifying Test (DQT) held among the Ammunition Mechanics II who have passed VIIIth Standard in school and have not less than 5 years service in the grade – II. It is submitted that the respondents are obliged to conduct the DQT every year and promote qualified candidates to the sanctioned posts of AM-I.

The applicant submits that he has been eligible from the year 2004 onwards when he had completed 5 years of service in the grade of AM-II for promotion to AM-I. However, it appears that the DQT had been held in the year 2000 in the NAD and, after that, no further DQTs for promotion to the post of AM-I were held there till 2013. On the other hand, it is submitted that the other Naval Armament Depots in places like Visakhapatnam, Mumbai, Goa etc., held DQTs every year from the year 2000 onwards. Their eligible qualified candidates were promoted to the posts of AM-I on the due dates. Hence, it is submitted that there has been delay and slackness on the part of the respondents in conducting the DQT in NAD, Aluva and, therefore, the applicant and other similarly placed AM-IIs could not be promoted in time.

It is submitted that the said DQT was finally held on 31.12.2012 and the results of the same were declared on 21.01.2013. The applicant further submits that he had been declared qualified for the promotion to the post of AM-I. He was promoted as AM-I in the scale of pay of Rs. 5200-20200 + Grade Pay 2400 with effect from 01.04.2013, as per the order produced at Annexure A1. At the time of filing of the O.A on 12.10.2017, the applicant had submitted that he was continuing in the said post of AM – I till date and that he was due to retire on 31.05.2021. In effect, the point that he seeks to make is that he had stagnated in the post of Ammunition Mechanic Grade – II for about 14 years owing to the administrative lapses on the part of the respondents, and that, consequently, he missed his promotion to AM-I to which he was entitled to from the year 2004 in case the said DQT had been conducted in time.

It is submitted that the next promotion post is that of Chargeman (Ammunition Workshop) [CM-AWS]. The promotion to this post is governed by the Recruitment Rules (RRs), produced at Annexure A2. As per the Rules, promotion to CM-AWS is from among Ammunition Mechanic Grade – I employees having 8 years service in grade I rendered after appointment thereto on a regular basis in the scale of Rs.4,000-100-6000/-. They too need to pass a Departmental Test to become eligible for consideration for promotion. Further, it is laid down in the RRs that 33 1/3% posts of CM-AWS will be filled by direct recruitment and 66 2/3% of the posts by promotion, failing which by direct recruitment. It is submitted that the respondents had conducted a DQT for promotion to the post of CM-AWS in the year 2014. The applicant had taken part in the same and had been declared passed and placed at serial No. 2 in the list, as produced at Annexure A3. It is submitted that at the time of filing of the present O.A there were 9 substantive vacancies of CM-AWS remaining unfilled due to paucity of qualified candidates. It is submitted that in the normal course, after the test was held and the result declared on 05.05.2014, he (the applicant) should have been promoted to the post of CM-AWS with effect from that date. The applicant, therefore, seeks the following relief:

“ (i) To call for the records leading to Annexure A8 proceeding dated 12.5.2017 and set aside the same.

(ii) To direct the respondents to promote the applicant to the post of Chargeman (Ammunition Workshop) w.e.f 5.5.2014, the date on which the applicant had passed Departmental Qualifying Trade Test for promotion to the post of Chargeman (Ammunition Workshop) with all consequential benefits.

(iii) To direct the respondents to fill up the post of Chargeman (Ammunition Workshop) in Naval Armament Depot., Alwaye by promoting the applicant by relaxing the rigor of experience stipulated in the Recruitment Rule on just and reasonable ground.

(iv) To direct the respondent not fill up the post of Chargeman (Ammunition Workshop) in Naval Armament Depot., Alwaye by resorting to direct recruitment from open market.”

It is submitted that the applicant had given a representation on 16.09.2014 requesting for the promotion for the post of CM-AWS by considering his combined service in Ammunition Mechanic – II and Ammunition Mechanic – I together which had already exceeded 15 years, since there were two substantive vacancies in the post of CM-AWS in the year 2014 consequent on the promotion of two incumbents. However the representation was rejected since he had put in only one year service in the cadre of AM-I and, therefore, it was stated that his claim cannot be considered as he did not have 8 years of service as AM-I. The applicant then put in another representation to relax the rigor of the qualifying service and take into account his combined service of AM-II and AM-I as there were substantive vacancies remaining unfilled. He also submitted that there was no change of duties involved in the matter of promotion from AM-II to AM – I; it was submitted that the duties, responsibilities and functions of employees functioning as AM – II or AM – I are similar in nature. It appears that this representation, which is produced at Annexure A6, was acted upon by the respondent No. 4 at the NAD Aluva by taking it up with the respondent No. 2 (Director of Naval Armament, Directorate General Naval Armament, Integrated Headquarters (IHQ), Ministry of Defence (Navy) (MoD), New Delhi). The claim for relaxation was however rejected by the Directorate General of Naval Armament, IHQ, New Delhi which is now produced as the impugned order at Annexure A8. While it was accepted in the letter at Annexure A8 that there were vacancies in the post of CM-AWS and that a case seeking one time waiver of the MoD to fill up these vacancies of CM-AWS by AM– I employees with combined service of 12 years in the grade of AM – II and AM – I together was taken up with MoD, the Department of Personnel & Training (DoP&T) had intimated that as a policy, they do not grant relaxation for promotion on the basis of a combined service clause and, therefore, had not agreed to the proposal. Thus, it was informed that the vacancies which have remained unfilled through the departmental promotion route in the grade of CM-AWS will be filled up through the direct recruitment route. The applicant has also sought the quashing of this order at Annexure A8 as part of his relief array.

Thus, in a nutshell, the submission of the applicant is that he had completed 5 years service in the category of AM-II by the year 2004. Had the DQT been held in time, in the year 2004 itself, he could have been promoted as Ammunition Mechanic – I in the year 2004 itself. He could then have been considered for promotion as Chargeman (AWS) after the test result declared in the year 2014. Thus, his right of promotion was deprived due to inaction on the part of the respondents in not conducting the DQT on the due date. Following from this, it is prayed that the applicant should be promoted as Chargeman (Ammunition Workshop) by reckoning his combined service as Ammunition Mechanic Grade – I and Ammunition Mechanic Grade – II especially as the duties, responsibilities and functionalities of both are similar in nature. The applicant has also submitted that he relies on the judgment rendered by the Hon'ble Apex Court in P. N. Ramachandran v State of Kerala and others [2004 (1) SCC 245]. He also submitted in the O.A that it was just and reasonable that a relaxation should be granted to him in this matter as he was due to retire on superannuation on 21.05.2021 and, therefore, he could not be promoted to the post of Chargeman before his superannuation.

The applicant later filed an M.A 180/267/2018 in February 2018 seeking a direction from this Tribunal to stay the selection and appointment to the post of CM-AWS, pursuant to a notification produced by the respondents with their reply statement at Annexure R4(d), by which it had been notified that 7 vacancies of Chargeman (AWS) were proposed to be filled up by a direct recruitment. It appears that no orders have been passed on the M.A so far. Later, he filed another M.A 180/711/2021 on 03.10.2021 after his retirement. In this M.A he submitted that since he had got the grade of AM – I with effect from 01.04.2013, he had completed his 8 years service in the cadre of Ammunition Mechanic Grade – I on 01.04.2021. Thus, he had completed the 8 year period of time required to be promoted to the post of Chargeman (AWS). The 2nd respondent by Annexure A9 had intimated the 3rd respondent (the Flag Officer Commanding-in-Chief, Headquarters, Southern Naval Command) that employees who are eligible as per extant rules can be considered for promotion and that in case the applicant was eligible for promotion to the post of Chargeman (AWS), he should be considered for the same. Hence, it was prayed in the MA that the Tribunal may direct the respondents to promote the applicant to the post of Chargeman (AWS) with effect from 01.04.2021, with all consequential benefits, pending final disposal of the Original Application. These two MAs have not been disposed off so far and are pending.

The respondents filed a reply statement in the O.A, as well as a reply to the M.A 180/711/2021. In their reply statement to the O.A the respondents have sought to explain the delay in conducting of departmental examination for promotion to the post of Ammunition Mechanic – I was mainly because of the pendency of litigations. Till the year 2000 it is submitted that the Departmental Qualifying Examination was being conducted regularly in time and that promotion was being awarded to the eligible Ammunition Mechanic – IIs. However in the year 2002, the cadre of Ammunition Mechanic was restructured, making promotion subject to qualifying the departmental examination. A memorandum had been issued by the NAD Aluva inviting applications from Ammunition Mechanic – II in the year 2002; however, none of the employees applied for the examination and instead filed O.As before the Tribunal for getting a one time relaxation for appearing in the examination. The O.As were allowed by this Tribunal on 02.05.2006, which, in turn, was challenged by the Department before the Hon'ble High Court of Kerala, which allowed the writ petition and reversed the order of the Tribunal. The Order of the Hon'ble High Court was then challenged by the employees before the Hon'ble Apex Court in SLP(C) Nos. 9680-9681/2009, which was dismissed by the Hon'ble Apex Court only on 27.09.2010. After this, the examination was conducted in the year 2012. The applicant had participated in the same and had qualified. He was then accordingly promoted to the post of AM-I in the year 2013. Thus, the respondents submit that there were no lapses on their part. The other Naval Armament Depots had conducted the Departmental Examination for promotion to the post of Ammunition Mechanic –I in time as there was no challenge against the same there. The only challenge against the departmental examination for qualifying for the post of Ammunition Mechanic – I was at NAD Aluva by the employees of NAD Aluva. Hence, the examination could not be held in time.

Further in regard to the promotion to the post of Chargeman (Ammunition Workshop) it is submitted that an employee must possess 8 years' service in the grade of Ammunition Mechanic – I rendered after appointment thereto on a regular basis in the scale of pay of Rs. 4000-100-6000. He also must have passed in a departmental test to become eligible for consideration for promotion. It is submitted that NAD Aluva has a sanctioned strength of 11 Chargeman (AWS), of which 02 Chargemen are already in position on the date of filing of the reply statement. Thus, there were 9 vacancies of Chargeman (AWS) and there were no qualified persons to be promoted, as per the Recruitment Rules, as on the date of filing of the reply statement. The Government of India had thus notified 7 vacancies of Chargeman (AWS) to be filled up by direct recruitment as per the notification produced at Annexure R4D. It is submitted by the respondents that the criteria fixed by Annexure A2 Recruitment Rule for promotion of an Ammunition Mechanic – I to the post of Chargeman (AWS) is mandatory. There was no provision for relaxation of the Rules. The applicant had qualified in the departmental examination for CM-AWS on 05.05.2014 but he could only be considered for promotion on completion of 08 years of service in the post of Ammunition Mechanic – I to which he had been promoted on 01.04.2013 only.

Further, the applicant's contention that he should have been promoted as CM-AWS with effect from 05.05.2014, the date of the result of the Departmental Qualifying Test for the post of Chargeman (AWS), is not sustainable as it is submitted that the post of CM-AWS is a responsible supervisory post. It is for this reason that the RRs have insisted on 8 years' service in the cadre of Ammunition Mechanic – I before promotion. The Annexure A5 reply given to the representation of the applicant was not been challenged contemporaneously and so, the present claim of the applicant to promote him as Chargeman (AWS) with effect from the date he passed the Departmental Examination is belated and to be rejected. Notwithstanding thus, the respondents had taken up the issue of relaxation of RRs by giving weightage to the combined service of Ammunition Mechanic – I & II for 12 years. However, the DoP&T had turned it down and it had been intimated to the Department that, as a policy, relaxation for promotion on the basis of combined service cannot be granted. In addition the contention of the applicant that the duties, responsibilities and functionalities of the Ammunition Mechanic Grade – II and Grade – I are similar in nature is not correct as the pay scales of the two posts are different and duties and responsibilities are also different in nature. Thus, in essence, it is submitted by the respondents that as the applicant does not possess the requisite qualification as per the RRs and as there is no provision for any relaxation of qualifying service prescribed by the RRs and also as DoP&T has not agreed the respondents are in no position to give the applicant the relief sought for and in any case to which he is not entitled. In addition, in response to the relief sought in M.A 180/711/2021 to promote the applicant to the post of Chargeman (AWS) with effect from 01.04.2021 with all consequential benefits, the respondents have given a separate reply statement. They submit that the applicant had been promoted as AM-I on 01.04.2013 only and since, there were no eligible personnel qualified for promotion as Chargeman AWS as on 01.01.2021, the Departmental Promotion Committee (DPC) for promotion to the post of Chargeman (AWS) for the panel year 2021 was not conducted. This matter was also intimated by the Headquarters Southern Naval Command to the IHQ, MOD (Navy) vide letter dated 04.02.2021 produced at Annexure R4(E).

Later, however, the DoP&T had issued a circular, vide F.No. AB-14017/17/2018-Estt.RR dated 12.08.2021, as per which there was a relaxation given in the eligibility service, by changing the crucial date i.e., 1st January for the consideration of promotion. This Circular, a copy of which was produced by the applicant during the time of oral submissions, indicates that as per earlier instructions of the DoP&T, the Ministries/Departments were mostly following the financial year from April to March based vacancy year system till 2017-18 for consideration of promotion to various grades. They had been directed to shift to the Calendar year from January to December vacancy system from the year 2018 onwards. Consequent to this the crucial date for cut off for determining eligibility for qualification of service for promotion had changed from 1st April to 1st January from the year 2018 onwards. (It is for this reason that the eight year eligibility criterion for promotion of the applicant was not there as on 1st January of vacancy year 2021 having been promoted only on 01.04.2021.) However, the said DoP&T circular at paragraph 2 pointed out that due to the shift in the vacancy year and consequent change in the crucial date for determining eligibility, many employees who were completing eligibility service as on 1st April of the vacancy year, were not becoming eligible for consideration for promotion in that vacancy year and that such employees were becoming eligible for consideration for promotion for vacancies arising only next year with effect from 1st January subject to fulfillment of other conditions. It was also mentioned that requests were received for the vacancy year 2019 onwards for grant of relaxation of eligibility service by upto 3 months as on the crucial date of 1st January on the grounds of shifting of vacancy year from financial year wise to calendar year wise to enable employees to be considered for promotion in that year. It was also indicated that the department has been granting relaxation on case to case basis for the vacancy years 2019, 2020 and 2021.

Thus, with a view to enable timely holding of DPCs, where recruitment has been shifted from financial year wise to calendar year wise in the light of DoP&T's OM dated 08.05.2017, which allow the shift to the calendar year, it was decided by the DoP&T, in consultation with the Union Public Service Commission and approval of the competent authority to delegate powers to the Administrative Ministries and Departments (Cadre Controlling Authorities) to relax the eligibility service prescribed in the Recruitment Rules/Service Rules (Rrs/SRs) for these posts/cadre as on crucial date i.e., 1st January 2021 for upto a maximum period of 3 months. It was also, inter alia, indicated as follows in paragraph 4:- “Relaxation in eligibility service is to be accorded in such cases where the employees would have been eligible for being considered for promotion as on 1 st April 2021 but due to change in the crucial date to 1st January, 2021, they become ineligible for being considered for promotion during 2021. Similar relaxation is permitted for vacancy year 2022 and 2023, as indicated in the table below:

Vacancy Year

Crucial date of Eligibility

Maximum relaxation of eligibility service delegated to the Administrative Ministry/Department

2021

01.01.2021

Upto 3 months for those who have completed eligibility service prescribed in the RRs by 31st March, 2021

2022

01.01.2022

Upto 3 months for those who would complete eligibility service prescribed in the RRs between 1st January and 31st March, 2022.

2023

01.01.2023

Upto 3 months for those who would complete eligibility service prescribed in the RRs between 1st January and 31st March, 2023.”

It is the contention of the applicant following from the above orders that, in spite of his retirement from service with effect from 31.05.2021, the benefit of the DoP&T circular should also have been extended to him as he would have completed 8 years of service on 31.03.2021 being promoted as AM – I on 01.04.2013. Learned counsel for the applicant during oral hearing submitted that the applicant had retired on 31.05.2021, two months after his completion of 8 years of service as AM – I on 31.03.2021. Hence, the benefit given by the DoP&T's circular above of 3 months relaxation in eligibility of service for the year 2021 upto 31.03.2021 should have been extended to him as well. Learned counsel also submits that the IHQ MoD (Navy), subsequent to the issue of the above DoP&T Circular dated 12.08.2021, had issued its own follow-up circular, produced at Annexure R4(F) dated 28 September 2021 by the respondents. This circular, referring to points made in the above referred DoP&T Circular, had directed various authorities, including Headquarters, Southern Naval Command Kochi, to review the Departmental Promotion Committee held for the year 2021, if required, in the light of the DoP&T OM dated 12 August 2021. Hence it is contended that the applicant's case should have been taken up in review for consideration in the DPC and, further, he should have been promoted as a result of the review DPC as Chargeman (AWS) with effect from the date of completion of the required experience period of 8 years i.e., 01.04.2021. When queried about the matter of the superannuation of the applicant before the aforementioned DoP&T Circular of 12.08.2021 and the IHQ MoD (Navy) circular of 28.09.2021 was issued, learned counsel submitted that the factum of retirement should not stand in the way of effecting consideration for promotion. He seeks, in this connection to rely on another another circular of DoP&T which also had been produced by the respondents with their reply statement at Annexure R4(G). This Circular dated October 12, 1998 is seen to be regarding procedure to be followed by the Departmental Promotion Committee (DPCs) in respect of retired employees. The learned counsel submits that it has been mentioned therein at paragraph 3, that, there is no specific bar in the aforesaid OMs of DoP&T as well as other related instructions of the DoP&T, for consideration of retired employees, while preparing year-wise panel(s), who were within the zone of consideration in the relevant year(s). It is also indicated at paragraph 3 of the Circular that it would not be in order if eligible employees, who were within the zone of consideration for the relevant year(s) but are not actually in service when the DPC is being held are not considered while preparing year-wise zone of consideration/panel and, consequently, their juniors are considered (in their places) who would not have been in the zone of consideration if the DPC(s) had been held in time. This is considered imperative to identify the correct zone of consideration for relevant year(s). It was also indicated that the names of the retired officials may also be included in the panels. Thus, on all the above considerations, the applicant should have been considered in the light of all the aforesaid circulars of the DoP&T and MoD IHQ for promotion, at least with effect from 01.04.2021, as Chargeman (AWS).

However refuting the above contentions, the Learned SCGSC drew attention to the fact submitted in her reply to the M.A 711/2021 that, as far as the Naval Armament Depot Aluva was concerned, the DPC for 2021 had not been held only because there were no eligible candidates for promotion as on 01.01.2021. This was also reported to the MoD (IHQ) as brought out in Annexure R4(E). Further, the applicant, once having proceeded on superannuation on 31.05.2021, is not covered by the circulars of the DoP&T and the MoD (IHQ) issued after his retirement which were in context of effecting promotions to serving employees, who otherwise would have had to await till the January of the next year for their promotion. These circulars will not be applicable to the case of the applicant. Further, the memorandum of DoP&T which has been produced by the respondents at Annexure R4(G) dated October 12, 1998 regarding retired employees only mentions that the names of retired officials may be included in the extended panels. However, it does not give retired officials any right for actual promotion in paragraph 3. It is only indicated that the DPC may, if needed, prepare extended panel as per the principles prescribed in the DoP&T's earlier OM dated April 9, 1996. Thus, in view of these facts, it was submitted that the applicant has no indefeasible right to be considered for promotion nor can he claim that he has been discriminated.

We have considered the above contentions and we feel, on balance, after a scrutiny of the above mentioned circulars, that the aim of the amendment relaxing the eligibility service by 3 months in the DoP&T Circular of 12.08.2021 was to extend a facility to serving Government employees, by giving them the relaxation of eligibility service upto 3 months for the vacancy year 2021 by extending the crucial date of eligibility from 01.01.2021 to 31.03.2021, as otherwise they would have been eligible to be considered for promotion only by 01.01.2022. The DoP&T circular dated 12.08.2021, or the subsequent follow up circular of the IHQ MoD (Navy) dated 28.09.2021 at Annexure R4(F) does not, in any way, indicate that they relate to retired government employees. The purpose seems to be for ensuring promotions to a class of serving employees, who would have otherwise had to wait for the subsequent year for their promotion, because of the change in vacancy year with effect from 2018 from financial year to calendar year. Further, both these circulars were issued as was noted earlier, after the applicant retired on 31.05.2021 and it has nowhere been indicated that retired employees too can be brought under their purview. A contention taken by the applicant was that, in case, the applicant had been promoted immediately after the dismissal of the SLP on 27.09.2010 as AM – I, instead of delaying the same till 2013, then he could have possibly completed the required 8 years service by 2019 or so, which, would have made him eligible for promotion as Chargeman (AWS) in that year or by 2020. However this aspect is explained by the learned SCGSC by submitting that this was not due to any intentional delay but was due to the usual administrative procedures initiated soon after the SLP was dismissed, which involved collection of data, etc. Whatever be the case, we cannot at this point of time interfere and immediately order consideration of his promotion from an earlier date than to the date when he was actually promoted in 2013. It is to be noted that any case of promotion is also dependent not just on the length of service but also on personal records, as well as other conditions, including vacancies occurring on that point of time. Further, it can be argued that the DPC would have been held on time and promotion could have taken place accordingly but the proximate real reasons for the delay for so many years was also the fallout of the long pending litigations arising from this Tribunal upto the Hon'ble Apex Court, which finally got dismissed only on 27.09.2010.

We are unable, therefore, in these facts and circumstances to allow the prayer of the applicant to consider his promotion with effect from the date that he had passed the Chargeman (AWS) Qualifying Trade Test, that is, with effect from 05.05.2014. On that date he had completed only one year of service in the grade of Ammunition Mechanic – I. The Recruitment Rules are clear that there needs to be at least 8 years of service in this grade before consideration for promotion. No convincing case has been made for relaxation of these Rules and there are no provisions for relaxation in these circumstances. Further, the prayer undertaken at the time of oral pleadings that he could have been considered for promotion with effect from 01.04.2021 cannot be considered at this stage. The DoP&T's circular (and other circulars) were issued after his proceeding on superannuation. There was no vacancy on 01.01.2021, when he was still in service and from that point of time to 31.05.2021 when he retired, the calendar year vacancy cut off date of January 1st 2021 was still in force and was the law. Thus, he did not have the qualifying service in terms of the same. A subsequent concession of 3 months given to benefit serving employees cannot be claimed by him for consideration after his retirement. In addition, the provision given for retired employees to be considered as part of zone of consideration or panel, which has been indicated in the OM produced dated October 12, 1998, makes it clear that retired officials will have no right for actual promotion but only may be part of the extended panels of the DPCs.

Therefore, neither on the basis of the Rule position nor on the basis of the circulars which have been issued by the Government is a case is made for consideration of the prayer of the applicant. We, therefore, are dismissing the O.A. No order as to costs.

(Dated this the 31st day of October 2022)