K.M. Ravi & Ors vs Union Of India & Ors

K. Haripal, J

Both the applicants were appointed initially in the Integrated Fishery Project, presently the National Institute of Fishery, Post Harvest Technology and Training, as unskilled labourers. Later, the said project, along with the unskilled labourers, was transferred to the Fishery Survey of India in 2005. When they were denied promotion to the post of Slipway Workers they approached this Tribunal with O.A.1228/2012 and 916/2013 which were heard together and by Annexure-A1 order dated 30.10.2015 the applications were allowed and the respondents were directed to promote the applicants, subject to the conditions. According to the applicants, in purported implementation of Annexure-A1 order, by Annexure-A2 they were promoted as Slipway Workers Grade-II with effect from 01.08.2004 and 01.03.2003 respectively. The applicants further submitted that the Fishery Survey of India, Mumbai (Slipway Worker Grade-I and Slipway Worker Grade-II) Recruitment Rules 2011 was promulgated on 01.09.2011, marked as Annexure-A3. In terms of Annexure-A3, the vacancies in the cadre of Slipway Worker Grade I are to be filled by promotion of Slipway Worker Grade-II with three years regular service in the grade. Their grievance is that despite the promulgation of the Recruitment Rules, the respondents have not filled up the vacancies as per Annexure-A3 Recruitment Rules. Aggrieved by the inaction on the part of the respondents, they have approached this Tribunal seeking a declaration that non-feasance on the part of the respondents to convene the DPC and to consider and promote the applicants as Slipway Workers Grade I with effect from 01.04.2012 is arbitrary, discriminatory and unconstitutional, to direct the respondents to consider and promote the applicants with all consequential benefits with effect from 01.04.2012.

According to the applicants, in terms of Annexure-A3 Recruitment Rules, they are eligible to be considered and promoted against vacancies arose atleast with effect from 01.04.2012, non-feasance on the part of the respondents to convene the DPC and to promote the applicants is arbitrary, discriminatory and violating their fundamental rights. The respondents are bound to convene the DPC every year and to keep a list of eligible candidates ready as on 31st March of every year and to promote eligible candidates.

On behalf of all the respondents, the 3rd respondent filed a reply challenging the version of the applicants. According to him, the post of unskilled worker was identified as Multi Tasking Staff (MTS). Even though MTS was not a feeder post for promotion to the post of Slipway Worker Grade II, in the light of the verdict in Annexure-A1, they were granted the benefit of promotion after the DPC was conducted by the NIFPHATT on 03.06.2016 and the applicants along with other employees were promoted to the post of Slipway Worker Grade III redesignated as Slipway Worker Grade II, maintaining the seniority position. The DPC was held in June 2016. The Recruitment Rules for promotion to the post of Slipway Worker Grade I prescribes minimum three years in the post of Slipway Worker Grade II. The applicants yearning for promotion in succession is thoroughly immature. Consequent to the promotion of the applicants as Slipway Worker Grade II, a seniority list for the post including the names of the applicants were prepared on 01.01.2017 and forwarded to the Cochin Base of Fishery Survey of India for circulation among the employees. But the seniority list has not been received back which is considered as an important attribute for promotion. Moreover, in Annexure-R1 office memorandum, it has been clarified that seniority of promotees is de-linked from the vacancy and year of vacancy and the relative seniority of promotees shall be determined according to the rotation of vacancies. Moreover, proposal for considering the four senior employees on adhoc basis has been forwarded to the Ministry and the seniority of the applicants at positions 4 and 3 has been preserved towards the four vacancies of the post of Slipway Worker Grade I. Regular DPC for filling the post on promotion could not be met owing to the directions attached, regarding non-fulfillment of the necessary quorum. Vacancies of Slipway Worker Grade I could not be filled due to administrative reasons. Therefore, the applicants challenging the entitlement of post with effect from 01.04.2012 is unjustifiable. Further, the verdict for promotion to the post of Slipway Worker Grade II was heard only during October 2015 and subsequently the DPC met during June 2016 for granting promotion to the post. A proposal for considering promotion of the applicants on adhoc basis has been forwarded to the Ministry and on receipt of approval the promotions would be made effective as per the direction. Thus the O.A. is sought to be dismissed.

The applicants filed a rejoinder. According to them, the submission of the respondents that the respondents have conceded the eligibility of the applicants to be considered for promotion and that papers have been sent for adhoc promotion is an admission that there are vacancies in the cadre of Slipway Worker Grade I. Moreover, there are statutory Rules regarding the convening of DPCs and timely promotion of employees. The delay in finalising the Departmental

Later, the respondents filed M.A.220/2022 seeking to close the Original Application. According to them, the applicants were appointed as unskilled workers on 07.12.1992 and 16.04.1990 respectively, both were promoted as Slipway Worker Grade II with effect from 01.08.2004 and 01.03.2003 respectively. The pay scales of unskilled worker and Slipway Worker Grade II have become the same on implementation of recommendations of the 6th CPC. They were granted 1st MACP in Pay Band 1 of Rs.5200-20200 plus Grade Pay of Rs.1900/-, which is equivalent to the post of Slipway Worker Grade I with effect from 01.09.2008. Similarly, they were given 2nd MACP with effect from 07.12.2012 and 16.04.2010 respectively. The first applicant will be eligible for the 3rd MACP on completion of 30 years of service. The second applicant has already been granted 3rd MACP on 16.04.2020. Moreover, Annexure-R3 office memorandum dated 12.04.2017 issued by the Ministry of Finance and Department of Expenditure indicates that posts remaining vacant for five years stand abolished and thus the O.A. has become infructuous.

We heard the learned counsel on both sides. The learned counsel for the applicants submitted that from the stand of the respondents it is clear that the applicants have been denied promotion purposely. Both the applicants had become qualified and promoted as Slipway Worker Grade II long before. The DPC should have been met in 2012. After 2011 DPC has not met and Annexure-A4 representation has not been considered. According to the learned counsel, the statement of the 3rd respondent that there is no quorum for convening the DPC warrants strong adverse comments. Regarding Annexure-R3, he submitted that directions may be issued for reviving the post.

On the other hand, according to the learned Standing Counsel, by Annexure-R3 office memorandum the posts remained vacant for five years stand abolished and thus the O.A. has become infructuous, and the applicants do not deserve any favourable orders.

Either unskilled labourers or Slipway Workers Grade II/Grade I, these are posts of last grade employees. The applicants had entered service as unskilled labourers in the Integrated Fishery Project, later transferred to Cochin base of Fishery Survey of India. When they were denied the post of Slipway Workers Grade II, they approached this Tribunal. By Annexure-A1 order dated 30.10.2015 their grievances were redressed and the respondents were directed to grant them promotion. Pursuant to the same, Annexure-A2 order was passed on 06.06.2016 whereunder the applicants were posted as Slipway Worker Grade II on regular basis with effect from 01.08.2004 and 01.03.2003 respectively. Now, relying on Annexure-A3 Recruitment Rules dated 01.09.2011 the applicants want to say that the DPC should have been convened promptly and they should have been granted promotion with effect from 01.04.2012 and should be given consequential benefits. The respondents have denied the contention. According to them, the applicants were promoted as Slipway Worker Grade II only in June 2016 after the DPC had met on 03.06.2016 and the yearning for promotion in succession is thoroughly immature. It is further stated that by Annexure-R1 office memorandum dated 07.02.1986 seniority of promotees is to be delinked from vacancies and year of vacancies.

In fact, we cannot comprehend as to how the applicants could claim promotion to the post of Slipway Worker Grade I with effect from 01.04.2012. From their own showing it is evident that Annexure-A2 office order was issued on the strength of Annexure-A1 order of this Tribunal dated 30.10.2015. Following Annexure-A1, the DPC met in June 2016 and promotion was granted to both the applicants with effect from 01.08.2004 and 01.03.2003 respectively. Annexure-A3 Recruitment Rules dated 01.09.2011 indicates that there were four vacancies in the category of Slipway Worker Grade I in 2011. The method of recruitment is by promotion and the qualification in feeder category is Slipway Worker Grade II with three years regular service in the grade. Even though the applicants were granted promotion to the post of Slipway Worker Grade-II with effect from 01.08.2004 and 01.03.2003 respectively, in fact they had put in regular service in the grade only on 06.06.2016, that is from the date of Annexure-A2. That means, in our view, both of them would become eligible to be considered for promotion as Slipway Worker Grade-I only with effect from 06.06.2019 after putting in regular service for three years. Therefore, their claim that they should have been considered for promotion with effect from 01.01.2012 has little meaning.

All the same, lack of consistency in the case of the respondents is liable to be exposed. They said that the seniority is delinked from vacancies and year of vacancies. Such a version is in contrast to Annexure-A3 Rules, where method of recruitment is by promotion only. In our opinion, if only there is division of vacancies between promotees and direct recruitees, Annexure-R1 has any application.

Secondly, from the reply itself it is very clear that the respondents have seriously contemplated to promote the applicants atleast on adhoc basis and that was how it is stated that their names have been sent to the Ministry for promotion on adhoc basis. At the same time, relying on Annexure-R3 they say that there is deemed abolition of posts. If there was deemed abolition of the posts, it is not explained, how the names of the applicants were sent to the Ministry for promotion on adhoc basis. These versions also cannot go together.

We cannot appreciate the stand of the respondents that DPC could not be met for want of quorum. It shows the sad state of affairs in the office of the respondents 2 and 3. After all, DPC consists of (1) the 2nd respondent Director General, Fishery Survey of India as the Chairman, (2) Deputy Director General (Fisheries) or Deputy Director General (Engineering) or Director(Engineering), Fishery Survey of India, (3) Senior Administrative Officer, Fishery Survey of India, and (4) officer-in-charge or representative of Central Institute of Research on Cotton Technology or Central Marine Fisheries Research Institute, Mumbai, as members. As suggested by the learned counsel for the applicants, if the DPC is not being met as per the standing instructions, that calls for adverse comments. Any how, it is not in the interest of any organisation to say that DPC could not be met for want of quorum.

The stand of the respondents that since the 2nd applicant was already granted all the three MACPs and that the 1st applicant also will be granted the 3rd MACP on completion of 30 years so that they should not aspire for promotion also cannot be accepted in good taste. In fact this Tribunal has already made certain observations on the subject in the Annexure-A1 order. Granting benefits under the MACP and giving promotion to a higher grade are two different concepts. Both of them have obtained financial upgradation is no explanation for the inaction and lethargy on the part of the respondents in not convening the DPC and considering their entitlement for promotion. In Annexure-A1 the Tribunal had already observed that there was conscious decision not to fill up the posts which affected the legitimate aspirations of the applicants. Moreover, it was observed that when a person is recruited by an organisation not just for a job, but for a whole career; but such observations, sad to say, have fallen on deaf ears.

As we observed earlier, on completion of three years in Slipway Workers Grade-II, both the applicants have become eligible to be promoted as Slipway Workers Grade-I. From the version of the respondents it is clear that their names have already been forwarded for promotion on adhoc basis. That means, Annexure-R3 office memorandum had no effect and they have acted as if the posts exist.

In the circumstances, the respondents are hereby directed to take speedy steps for considering the eligibility of the applicants for promotion by convening the DPC within a period of 90 days from today. In case the posts stand abolished, DPC shall be convened after reviving the same.

The Original Application is allowed as above. Costs will follow the event.

(Dated, this the 30th March, 2023)