Jagan Shukla and Others vs The Union of India and Others

Sanjay Yadav, J.—Order dated 04.04.08 passed by Central Administrative Tribunal, Jabalpur Bench Jabalpur is being assailed vide this petition under Article 227 of Constitution of India. By impugned order, Original Application; O.A. No. 214/06; whereby; petitioners claimed the grant of benefit of first financial upgradation under Assured Carrier Progression Scheme, 1999, (referred as ACP) has been rejected.

Appointed on different Group ''C'' posts such as LDC, Auto Fitter, Turner, Machinist, Examiner, Checker, Filter etc., the petitioners were made Supervisor Grade ''B'' in scale of Rs. 380-560/-in the year 1978. The said promotion/appointment was against 20% quota fixed for direct recruitment. The appointment on the post of Supervisor Grade ''B'' as evident is governed by SRO 282 dated 29.8.73 and are filled in accordance with Rule 5 which stipulates that the 20% of post of Supervisor Grade ''B'' to be filled by direct recruits and 80% by promotion in accordance with provisions of Rule 8.

In the case at hand it is not in dispute that the procedure as is prescribed for filling the post reserved for direct recruitment was not adheared to instead group ''C'' personnels of the Ordnance Factories were promoted/appointed against 20% quota by holding a selection test. After being appointed/promoted as Supervisor Grade ''B'', the petitioners were granted revised pay scale of Rs. 1400-2300/-under 4th pay commission. Subsequently, the post of Supervisor ''B'' was redesignated as Chargeman Grade II, w.e.f. 1.1.96.

That, in pursuant to recommendation of 5th Central Pay Commission, the Ministry of Personnel Public Grievance and Pensions (Department of Personnel and Training) brought into effect an Assured Carrier Progress (herenafter to be referred as ''ACP Scheme'') vide office memorandum dated 9.8.99. The ACP scheme as apparent therefrom was introduced "to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues.

Annexure A-1 appended with the said office memorandum laid down conditions for grant of benefits under the ACP Scheme. It stipulated that under Scheme the first financial upgradation shall be allowed after 12 years of regular service and the second upgradation after 12 years of regular service from the date of first financial upgradation subject to fulfilment of prescribed conditions. 5-Clause 5.1 of Annexure 1 appended with OM dated 9.8.99 stipulates

5.1-Second Financial upgradation under the ACP Scheme in entire Government service carrier of an employee shall be granted against the regular promotion (including in-situ promotion and fast track promotion availed through limited departmental competitive examination) availed from grade in which an employee was appointed as a direct recruit. This shall amount to that two financial upgradations under the ACP scheme shall be availed only if no regular promotions during the prescribed period (12 & 24 years) have been availed by an employee. If an employee has already got one regular promotion, he shall qualify for second regular promotion only on completion of 24 years of regular service under the ACP scheme. In case second promotion on regular basis have already been received, no benefit under the ACP scheme shall accrue to him.

Construing the promotion/appointment as Supervisor Grade ''B'' as a direct appointment, petitioners approached the authorities for grant of first financial up gradation. The representations were however, turned down treating the appointment as Supervisor Grade ''B'' as promotion. The said decision was challenged by the petitioners before the Central Administrative Tribunal, Jabalpur, Bench Jabalpur,vide O. A. No. 214/06 during pendency whereof, the petitioners also challenged Clause 4 of paragraph 3 of order dated 18th September, 2000, which provided for that benefits under ACP scheme are limited to higher payscale and do not confer designation, duties and responsibilities of the higher posts; therefore, the incentive, bonus should be with reference to the post held by employee on the regular basis and not with reference to higher scale of pay granted on upgradation under ACP scheme.

The Tribunal after considering the rival contentions, negatived the claim put forth by the petitioners by the impugned order dated 4.4.08. The Tribunal held

9-The issue germane to the case is whether the appointment of the applicants against the direct recruitment quota can be treated as a fast track promotion for the purpose of ACP scheme. There is no doubt that in the instant case, the appointment of the applicant as Supervisor ''B'' has been made against 20% direct recruitment quota but this fact in itself does not prove it conclusively that the appointment has to be treated as direct recruitment. Many a time, recruitment rules are relaxed to fill up direct recruitment quota through departmental candidates with a view to remove stagnation for want of suitable candidates in the market. Admittedly, no outsiders were allowed to take part in the selection process, which is the subject matter of the OA. There is nothing on record to show that any effort was made by the authorities to get candidates from the market, by issuing open advertisement or by circulating the vacancies to the employment exchange. The fact that the applicants of this OA were asked to appear for interview along with their employment exchange card does not ipso facto prove that the employment exchange was requested to circulate the vacancies to outside candidates. In view of these facts there is no doubt that the said appointments were made in relaxation of Recruitment Rules with a view to give quick promotions to the existing employees in the lower scale. These recruitments therefore, although made against direct recruitment quota, have rightly been treated as fast track promotion. The impugned circular (Annexure R-4) only clarifies a position that is crystal clear.

The Tribunal also observed that in case of two employees with whom comparison was made by the petitioners, the respondents have withdrawn the benefit extended in one case; whereas, in respect of another it was held that, since he participated in a selection for a direct recruitment along with the outsiders, the same was treated as a direct appointment rather than promotion.

Aggrieved, by the order passed by Tribunal, present petition is filed. Learned Counsel for the petitioner reiterates the submission as were put forth before the Tribunal that having been appointed against 20% posts reserved for direct recruits, the petitioners cannot be treated as promotees. It is urged that, petitioners were direct recruits and therefore, the service antecedents prior to the appointment as Supervisor ''B'' ought not to have been taken into consideration while declining the benefit of first financial upgradation. That the petitioner were therefore, entitled for first financial upgradation. It is urged that in absence of any order relaxing the Rules for filling up the posts reserved for direct recruits by departmental personnel, appointment of the petitioners as Supervisor ''B'' ought to be treated as a direct recruitment. The contentions though attractive, however, falls apart when examined in the light of SRO/Recruitment Rules, which permits relaxation, and even if there is no express orders of relaxation, the action of respondents in confining the recruitment i.e. filling the post of Supervisor Group ''B'' from departmental personnels against 20% posts reserved for direct recruits would tantamount to implied relaxation.

In this context reference can be had of a decision in G.S. Lamba and Others Vs. Union of India (UOI) and Others, wherein Supreme Court observed

26... Undoubtedly, when the power to relax any of the provisions of the Rules is exercised, the controlling authority must be of the opinion that it is necessary or expedient so to do for reasons to be recorded in writing before exercising the power. It is well-settled that failure to record reasons will not invalidated the exercise of power. Once the power to relax a given, mandatory rule exists and an action in derogation of the rule has been repeatedly taken year after the year, it would be a permissible inference that the action was taken in relaxation of the rule for which the power exists and in this case is located in Rule 29(a). To hold otherwise would be to come to rather disconcerting conclusion that a body like the Government of India acted deliberately in contravention of the mandatory rule from year to year. It would as far as possible be proper to avoid such an inference unless it is inescapable. In this case as pointed out earlier for years 1965 to 1972 b there was no direct recruitment and even for the later years only an indent was placed and not recruitment done, and during all these years a large number of persons from Grade IV were promoted as departmental promotees to the Integrated Grade II and III.A body like the Government of India presumably knew that there is a statutory quota for recruitment but is also presumably knew that it had power to relax and for exigency of service repeatedly acted in derogation of the quota rule, and therefore it would be permissible to infer that the action was taken in relaxation of the mandatory quota rule....

In view whereof, contentions on behalf of the petitioner''s that in absence of express order of relaxation, the promotion of petitioner as Supervisor ''B'' should be treated as appointment cannot be given much credence and has been rightly rejected by the Tribunal.

The material on record leaves no iota of doubt that the petitioners who held Group ''C'' posts were promoted as Supervisor ''B'' against 20% direct recruitment quota. That being so, the petitioners were rightly declined the benefit of first financial upgradation as they had already earned promotion. Regarding comparison with an employee who has been given the benefit of first financial upgradation, we are not commended to any material as would cause dent to the findings by the Tribunal that said employee appeared along with the outsiders in a selection against post reserved for direct recruitment and earned appointment.

In view of above the impugned order cannot be faulted with as would warrant an interference. In the result, petition fails and is hereby dismissed.