High Court
Case Details
WP(C) 131/2008 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (CAV) Sharma, J This writ petition is directed against the judgement and order dated 9.8 .2006 passed by the Central Administrative Tribunal, Guwahati Bench, in the Orig inal Application being OA No. 283/2005 affirmed on review vide order dated 26.6. 2007 in RA No. 5/2006. By the impugned judgement and order, the learned Tribunal has issued direction to grant ACP to the applicant who is the respondent herein to the next upgradation from Rs. 4000/- to Rs. 6000/- to Rs. 4500 - 7000/- as M aster Craftsman from the date he was eligible for the ACP. On granting of the AC P, the respondent is to get notional benefit increasing his pensionary benefits. Be it stated here that the respondent has already retired from service on attai ning the age of superannuation. 2. The brief facts leading to filing of the writ petition are as follows : 3. The respondent, who was the applicant before the learned Tribunal was a civilian employee under the petitioners i.e. the Indian Army. He was enrolled in 1, Defence Base Workshop, EME (Corps of Electronics and Mechanical Engineering) on 31.1.1967. Thereafter he was absorbed as permanent civilian Pattern Maker in Defence Artisan Staff w.e.f. 1.1.1979. He having qualified in the prescribed tr ade test, was promoted from the post of Skilled Grade (Pattern Maker) to the Hig hly Skilled Grade-II w.e.f. 01.07.1987 in the scale of pay of Rs. 1200 - 1800/-. Thereafter, he having further qualified in the prescribed trade test, was furth er promoted from the post of Highly Skilled Grade-II to Highly Skilled Grade-I w .e.f. 10.8.1996 in the scale of pay of Rs. 1320 - 2040/-. The respondent belongi ng to Grade-C Industrial category retired from service on attaining the age of s uperannuation. At that point of time, he was in the pay scale of Rs. 4000 - 6000 /- (revised) of Highly Skilled Grade-I. 4. When the petitioner was absorbed under the petitioners as Skilled Grade, the Defence Artisan Staff in the Industrial Trade in various Defence establishm ents comprised of the following Grade structures :- i. ii. Highly Skilled - I Master Craftsman. Skilled. Highly Skilled -II iii) iv) A Skilled Grade Artisan was eligible to be promoted to the Highly Skille 5. d Grade-II subject to passing the prescribed trade test. Similarly, the Highly S killed Grade-II was eligible for promotion to Highly Skilled Grade-I on passing the prescribed trade test. An employee either working as Skilled of Highly Skill ed-II or Highly Skilled Grade-I or Master Craftsman, in the general term is know n as Tradesman. 6. The post of Master Craftsman (MCM) in the Defence Establishment was crea ted in the year 1982 vide Ministry of Defence letter dated 21.09.1982.The letter also laid down the criteria for promotion to the most of Master Craftsman which inter alia provided that the number of posts of MCM in each trade would be upto 10% of the total number of sanctioned posts in Highly Skilled Grade-I in each o rganisation. The worker should have rendered a total service of at-least 10(ten) years continuously in the same or allied trade in the Skilled Grade, out of whi ch 3 (three) years service should be in the Highly Skilled Grade-I. It was also provided that the post would be personal to the holders and would lapse with the retirement / wasting of the individuals. The letter also further provided that each Defence Establishment should constitute a Departmental Selection Committee for the purpose of selection applying the yardsticks and parameters laid down in the letter. 7. Pursuant to the Fifth Central Pay Commission recommendation, the Governm ent of India in the Ministry of Personnel and Public Grievances and Pension vide its OM dated 09.08.1999 had notified the Assured Career Progression for the Cen tral Govt. civilian employees. As per the said OM, the ACP scheme is applicable to Group - B, Group-C and Group-D categories of the service / posts to mitigate the hardship of acute stagnation either in a cadre or in a isolated post. The Go vernment of India keeping in view all relevant facts decided to grant two financ ial upgradations as recommended by the Fifth CPC and also in accordance with the agreed settlement dated 11.09.1997 on completion of 12 years and 24 years of re gular service respectively subject to the conditions stipulated therein. As per the said OM, the ACP Scheme should in no case affect the normal (regular) promot ional avenues available on the basis of vacancies and vacancy based regular prom otion, as distinct from financial upgradation under the SCP Scheme and that the same would continue to be granted after due screening by a regular DPC as per th e relevant rules / guidelines. The salient conditions for grant of the benefits under the ACP scheme are as follows :- (cid:28)1. The ACP Scheme envisages merely placement in the higher pay scale /grant of financial benefits (through financial upgradation) only to the Government se rvant concerned on personal basis and shall, therefore, neither amount to functi onal /regular promotion nor would require creation of new posts for the purpose. The financial benefits under the ACP Scheme shall be granted from the da 2. te of completion of the eligibility period prescribed under the ACP Scheme or fr om the date of issue of these instructions whichever is earlier.
Legal Reasoning
3. The first financial upgradation under the ACP Scheme shall be allowed af ter 12 years of regular service and the second upgradation after 12 years of reg ular service from the date of the first financial upgradation subject to fulfill ment of prescribed condition. 4. Two financial upgradations under the ACP Scheme in the entire Government service career of an employee shall be counted against regular promotions (incl uding in-situ promotion and fast-track promotion through limited departmental co mpetitive examination) availed from the grade in which an employee was appointed as a direct recruit. This shall mean that two financial upgradations under the ACP Scheme shall be available only if no regular promotions during the prescribe d periods (12 and 24 years) have been availed by an employee. If an employee has already got one regular promotion, he shall qualify for the second financial up gradation only on completion of 24 years of regular service under the ACP Scheme . In case two prior promotions on regular basis have already been received by an employee, no benefit under the ACP Scheme shall accrue to him. Residency periods (regular service) for grant of benefits under the ACP 5. Scheme shall be counted form the grade in which an employee was appointed as a d irect recruit. 6. Fulfillment of normal promotion norms (bench-mark, departmental examinat ion, seniority-cum-fitness in the case of Group ’D’ employees, etc) for grant of financial upgradations, performance of such duties as are entrusted to the empl oyees together with retention of old designations, financial upgradations as per sonal to he incumbent for the stated purposes and restriction of the ACP Scheme for financial and certain other benefits (House Building Advance, allotment of G overnment accommodations, advances, etc) only without conferring any privileges related to higher status (e.g. invitation to ceremonial functions, deputation to higher posts, etc) shall be ensured for grant of benefits under the ACP Scheme. 7. Financial upgradation under the Scheme shall be given to the next higher grade in accordance with the existing hierarchy in a cadre/category of posts wi thout creating new posts for the purpose. (cid:29) Besides the aforesaid conditions, there are other conditions which are r 8. equired to be fulfilled for grant of ACP as laid down in the said OM dated 09.08 .1999 (Annexure-II). Certain clarifications was issued in respect of the said OM dated 09.08.1999 vide OM dated 10.2.2000. 9. Pursuant to the introduction of the ACP scheme and the subsequent clarif ications, the authority in the Department of EME had considered the said scheme in its entirety and thereafter the Director of EME issued a Standing Operating P rocedure (SOP) vide letter dated 15.5.2002 for implementation of the ACP Scheme duly taking note of the conditions stipulated for financial upgradation under t he ACP Scheme. The said SOP also laid down the basic conditions including the fo llowing :- Fulfillment of normal promotion norms i.e. bench mark as per ACR grading (cid:28)(i) , seniority cum fitness for Group ’D’ employees or Trade Test for Industrial emp loyees is a must. (ii) Employees who have completed eligibility service as on 09.08.1999 but re tired prior to first meeting of Screening Committee may also be considered for g rant of benefits under ACPS if assessment is based on ACRs. The same is not poss ible in cases where passing of trade test/ written examination etc. is mandatory for promotion, as assessment based on such tests is not possible after the date of superannuation. (cid:29) 10. Pursuant to the Fifth CPC recommendation, recommending for restructuring of the cadre of Artisan staff in the Defence establishment, the Government conv eyed its sanction for the said restructuring of the cadre of Artisan Staff vide its order dated 20.05.2003, the relevant extract of which are as follows :- The grade structure in the industrial as well as in the non-industrial t (cid:28)2. rades, wherever already available and the pay scales of the Defence artisan staf f shall stand modified w.e.f. 1.1.96 as under :- (i) (ii) (iii) Skilled Highly Skilled (HS-I + HS-II) Master Craftsman Rs. 3050 - 4590. Rs. 400 - 6000. Rs. 4500-7000. 3.(a) Wherever the grade structure in the Industrial as well as in the Non-Ind ustrial trades is already existing in the ration of 65 : 20 : 15, in the erstwhi le Skilled : HS -II : HS-I, the merger of HS - II and HS-I shall be treated to h ave come into effect from 1.1.96 and the grade structure of Skilled and Highly S killed categories shall be in the ratio of 65 : 35 (20+15). (b) The post of Master Craftsman shall not be part of the hierarchy and the placement in this grade will not be treated as promotion for Highly Skilled Grad e either under normal promotion rules or under ACP Scheme. -------------------------------------- ------------------------------------- The post of Master Craftsman shall continue to be considered as Highly S 4.(iv) killed Grade for the purpose of promotion to the Grade of Chargeman -II (Rs. 500 0-8000). The benefit of the first and second ACP to the skilled workers will be a (v) s per the orders issued by the DOP&T under their OM dated 9.8.1999 and subsequen t clarifications issued on the subject. (cid:29) Pursuant to the said order dated 20.5.2003, the Ministry of Defence, Gov 11. ernment of India merged the 2 (two) artisan cadres namely Skilled Grade-II and H ighly Skilled Grade-I in a single grade of Highly Skilled with effect from 01.01 .1996 and the next higher posts for which they became eligible to be considered for promotion was that of Chargeman -II, which falls in the supervisory grade, s ubject to fulfillment of the norms prescribed. 12. The recruitment and appointment to the post of Chargeman - II is covered by the Corps of Electrical and Mechanical Engineers Chargeman - I (Part-I and P art-II cadre) and Chargeman - II (Part-I and Part-II cadre) Recruitment Rules, 2 002, under which 66 & 2/3% posts of Chargeman -II are to be filled up by promot ion and the following categories of employees are eligible to be considered for promotion :- (cid:28)(i) Tradesman (Rs. 4000-6000) with not less than eighty years service in the grade, subject to passing necessary trade test. (ii) Master Craftsman (Rs. 4500 - 7000) who have passed Supervisory test will also be considered as per their tradesmen seniority with not less than continue d 8 years service of tradesman and Master Craftsman. (cid:29) Earlier their conditions of service were governed by the Corps of Electr ical and Mechanical Engineers Recruitment Rules, 1977. 13. As stated above, the applicant/respondent retired form service on 30.09. 2003 in the pay scale of Rs. 4000-6000/- as Highly Skilled Grade-I, which had be come Highly Skilled Grade- w.e.f. 1.1.1996, subsequent to the aforementioned ord er dated 20.5.2003 merging the two cadres, namely, Highly Skilled Grade-II and H ighly Skilled Grade-I. It will be pertinent to mention here that the recommendat ions for promotion of the respondent to Master Craftsman were forwarded to the h igher authorities during 1999, 2000 and 2001 but due to non-availability of vaca ncy for Pattern Maker for Master Craftsman, the respondent could not be promoted . Pursuant to his retirement from service he has already received all pensionary benefits commensurating his position as Highly Skilled Grade. However, subseque nt to his such retirement, he submitted representation dated 14.5.2004 and 20.9. 2004 contending inter alia that in view of the particular clause in the ACP sch eme dated 20.5.2003, he was entitled to get financial upgradation to the scale o f pay of Master Craftsman with appropriate fixation of pensionary benefits. Acco rding to the petitioners, though the respondent had contended that his juniors w ere promoted but he failed to cite any example. During the course of hearing of the instant writ petition also, on being asked as to whether any junior to the r espondent was promoted, no example could be cited. 14. It is in the aforesaid back drop, the respondent had approached the Trib
Decision
unal by filing OA No. 104/2005 which was disposed of by order dated 13.5.2005 at the admission stage itself directing the respondent to make representation to t he authority and consideration of the said representation in accordance with law . 15. Pursuant to the aforesaid order dated 13.5.2005 passed by the Tribunal i n OA No. 104/2005, the representation submitted by the respondent on 30.5.2005 w as considered by the authority and rejected by the impugned order dated 17.9.200 5 (Annexue-10). Being aggrieved, the respondent once again approached the Tribun al by filing another OA registered and numbered as OA No. 283/2005. The said OA has been allowed with the following directions :- (cid:28)7. In the conspectus fact sand circumstances, we are of the considered view that the applicant cannot be availed the second promotion ad therefore the impu gned order dated 17.9.05 has not been issued under in good spirit of law and to be set aside. The applicant is entitled to get the second ACP which is on the no rmal basis to the next up gradation from Rs. 4000-6000/- to Rs. 4500-7000/- as M aster Craftsman from the date he is eligible for ACP. We make it clear that the applicant is only entitled to get notional benefit but that will have an effect on his pensionary benefits, since he has already retired. The relief shall be gr anted to the applicant forthwith in any case within 3 months from the date of re ceipt of this order. OA is allowed. In the circumstances no order as to costs. (cid:29) 16. Being aggrieved by the said direction, the petitioners filed an applicat ion for review of the said judgement under Section 22(f) of the Administrative T ribunal Act, 1985. The said application was registered and numbered as RA 5/2006 but the same having been rejected by judgement and order dated 26.6.2007, the p etitioners have filed the instant writ petition. 17. While admitting the writ petition, this Court was inclined to pass an in terim order to the effect that the payment as directed by the learned Tribunal w ould be subject to the outcome of the writ petition. 18. We have heard Mr. J. Roy, learned counsel along with Mr. M. Choudhury, l earned counsel for the petitioners. We have also heard Mr. K.N. Choudhury, learn ed senior counsel assisted by Mr. R. Dubey, learned counsel for the applicant/re spondent. We have also considered the entire materials on record. After giving o ur anxious consideration to the submissions and the materials on record, our fin dings and conclusions are recorded below : 19. as as follows: In the original application filed before the Tribunal, the prayer made w (cid:28)8. RELIEFS SOUGHT FOR : Under the fact sand circumstances stated above, the applicant humbly prays that Your Lordships be pleased to admit this application and notice be issued to the respondents to show cause as to why the reliefs sought for by the applicant shal l not be granted, call for the records of the case and on perusal of the records and after hearing the parties on the cause or causes that may be shown, be plea sed to grant the following reliefs :- 8.1 dent No.4. Set-aside/quash the impugned Order dated 17.09.2005 passed by the Respon 8.2 Direct the Respondent authorities to consider the case of the applicant for promotion to the post of Chargeman with effect from the date of implementati on of the ACP Scheme on notional basis. 8.3 Direct the Respondent authorities to make payment of all the pecuniary d ues of the applicant including arrear salary after promoting the applicant on no tional basis from the date of implementation of the ACP Scheme. 8.4 sionary benefits of the petitioner in terms of the notation promotion. Direct the Respondent authorities to revise and make payment all the pen 8.5 Cost of the application. 8.6 Any other relief or reliefs to which the applicant is entitled to, under the facts and circumstances of the case as may be deemed fit and proper by the Hon’ble Tribunal. (cid:29) 20. If we go by the aforesaid prayer, it is seen that the applicant i.e. the respondent herein had aspired for promotion to the post of chargeman with effec t from the date of implementation of the ACP scheme on notional basis, There was no prayer for promotion to the post of MCN as has been provided by the learned Tribunal. As to what is the direction contained in the impugned judgment of the Tribunal has been noted above. As per the said direction, the applicant is entit led get second ACP on notional basis as Muster craftsman from the date he became eligible for ACP. However, the same was not the prayer made in the O.A. As note d above, the prayer was for promotion to the post of chargemen. 21. It will be pertinent to refer at this stage the specific averments made by the applicant in his O.A. in respect of his claim for promotion to the post o f chargeman. (cid:28)4.9. That the aforesaid representations submitted by the applicant were dealt with by the Respondent authorities vide letters dated 29/05/2004 and 19/10/2004 . The Respondent authorities had issued both these letters without any applicati on mind with an absolute mechanical approach. The Respondents authorities failed to consider the fact that the applicant was entitled for promotion way back in the year 1999. The Respondent authorities simply rejected the aforesaid represen tations submitted by the applicant only on the ground that the applicant had nev er worked as a Master Craftsman to be considered for the next grade of promotion i.e. the Post of Chargeman. The Respondent authorities failed to take note of t he fact that the applicant was working in the grade of highly skilled in the pay scale of Rs. 4000-6000/-. As such, he was very much in the feeder cadre for bei ng promoted to the post of Chargeman. Needless to mention here that several pers ons who were placed much below the applicant had been arbitrarily promoted by th e Respondent authorities by superseding the applicant. 4.10. That being highly aggrieved and dissatisfied with the repeated non-consi deration of the case of the applicant for being promoted to the post of Chargema n on a national basis by the respondents, the applicant was left with no other o ption but to approach this Hon’ble Tribunal by way of an Original Application b eing OA No. 104 of 2005 & & & & & & & & & & & & & &. 5.2. For that the Respondents authorities have failed to consider the fact th at the name of the applicant was approved for the post of Master Craftsman way b ack in the year 1999 but could not be placed in the said post for want of vacanc y and efforts were made to create a new post of Master Craftsman for accommodati ng the applicant. The post of Master Craftsman being kept in the same hierarchy as that of Highly Skilled, as such the petitioner in terms of the Assured Career Progression Scheme had already qualified before his retirement for being promot ed to the post of Chargeman, which is the next grade in the hierarchy. As such, the applicant is entitled to be promoted in terms of the ACP Scheme even after h is retirement on notional basis with all consequential benefits thereof. 5.3. For that the Respondent authorities have acted in a manner contrary to a ll the settled and established principles of service jurisprudence in refusing t o promote the applicant and promoting other persons who were much junior to the applicant. Such action on the part of the respondent authorities is violative of Articles 14 and 16 of the Constitution of India. Although an employee cannot cl aim promotion as a matter of right, however, as has been held by the Hon’ble Sup reme Court, the right to be considered for promotion is a fundamental right. In view of the facts and circumstances that have been narrated hereinabove, it was incumbent upon the respondents to consider the case of the Applicant in the ligh t of the policy decision of the Govt. of India. Moreover, the fundamental right guaranteed to the Applicant under Article 16 of the Constitution of India was in fringed the moment his immediate junior was promoted. 5.6. For that the claim of the applicant in OA No. 104 of 2005was that his ca ndidature was already forwarded for the post of Master Craftsman way back in 199 9, however, the same did not materialize for want of vacancy. However, after the ACP Scheme was implemented, the applicant is fit to be considered for promotion notionally to the post of Chargeman, which is the next higher post in the hiera rchy. 5.8. For that the Respondent No.4 while issuing the impugned Order dated 17/0 9/2005 completely misinterpreted the Order dated 13/05/2005 passed by his Hon’bl e Tribunal in OA No. 104 of 2005. The Respondent No.4 under some miss conception of fact as well as of law rejected the case of the applicant and considered the case of the applicant for selection to the post of Master Craftsman only, which was never the case. (cid:29) 22. In the written statement that was filed by the respondent in the Tribuna l it was contended that the applicant was not entitled to get promotion to the p ost of Muster craftsman. Referring to his two promotions he had already earned, it was also contended that the ACP scheme was implemented in 1999 and not in 200 3 as was stated by the applicant. As noted above, the applicant was first promot ed from skilled to HS Grade-II on 1.1.1987 and from HS Grade-II to HS Grade-I on 10.8.1996 i.e. before implementation of the ACP scheme. Thus it was contended b y the respondents in their Written Statement that the applicant having already e arned two promotions he was not entitled to get further promotions under ACP sch eme. It was also contended that for promotion to the post of chargeman, the appl icant was to earn his eligibility and that it was not automatic. 23. After the impugned judgment and order passed by the learned Tribunal, th e respondents i.e. the petitioners filed the review application being R.A. No. 5 /2006. In the review application, it was specifically contended that there was e rror apparent on the face of the record and that even for promotion to the post of chargeman, which in fact was the prayer of the applicant, the normal rules of promotion was to be followed and that the applicant could not have claimed auto matic promotion. However the learned Tribunal by its impugned judgement and orde r dated 26.6.2007 rejected the said review application on the ground of non-avai lability of any ground for review of the earlier judgement and order. 24. Annexure-4 is the Office Memorandum dated 09.08.1999 on the ACP Scheme. As laid down in the said OM, the incumbents under the said OM are entitled to tw o financial upgradations as recommended by the Fifth CPC on completion of 12 yea rs and 24 years, which however, would be subject to the conditions laid down in Annexure-1 to the said OM. As per the conditions for grant of benefits under the ACP Scheme, the financial benefits under the said Scheme is to be granted from the date of completion of the eligibility period from the date of issue of the i nstructions, whichever is later. Fulfillment of normal promotion norms i.e. benc h mark, departmental examination, seniority-cum-fitness in the case of Group ’D’ employees etc for grant of financial upgradations, performance of such duties a s are entrusted to the employees together with retention of old designations was also emphasized. Clause 6 and 7 of the said OM are quoted below : (cid:28)6. SCREENING COMMITTEE 6.1 A departmental Screening Committee shall be constituted for the purpose of p rocessing the cases for grant of benefits under the ACP Scheme. 6.2 The compo sition of the Screening Committee shall be the same as that of the DPC prescribed under the relevant Recruitment/Service Rules for regular promoti on to the higher grade to which financial up-gradation is to be granted. However , in cases where DPC as per the prescribed rules is headed by the Chairman/Membe r of the UPSC, the Screening Committee under the ACP Scheme shall, instead, be h eaded by the Secretary or an officer of equivalent rank of the concerned Ministr y/Department. In respect of isolated posts, the composition of the Screening Com mittee (with modification as noted above, if required) shall be the same as that of the DPC for promotion to analogous grade in that Ministry/Department. 6.3 In order to prevent operation of the ACP Scheme from resulting into undue st rain on the administrative machinery, the Screening Committee shall follow a tim e-schedule and meet twice in a financial year - preferably in the first week of January and July for advance processing of the cases. Accordingly, cases maturin g during the first-half (April-September) of a particular financial year for gra nt of benefits under the ACP Scheme shall be taken up for consideration by the S creening Committee meeting in the first week of January of the previous financia l year. Similarly, the Screening Committee meeting in the first week of July of any financial year shall process the cases that would be maturing during the sec ondhalf (October-March) of the same financial year. For example, the Screening C ommittee meeting in the first week of January, 1999 would process the cases that would attain maturity during the period April 1, 1999 to September 30, 1999 and the Screening Committee meeting in the first week of July, 1999 would process t he cases that would mature during the period October 1, 1999 to March 31, 2000. 6.4 To make the Scheme operational, the Cadre Controlling Authorities shall cons titute the first Screening Committee of the current financial year within a mont h from the date of issue of these instructions to consider the cases that have a lready matured or would be maturing up to March 31, 2000 for grant of benefits u nder the ACP Scheme. The next Screening Committee shall be constituted as per th e time-schedule suggested above. 7. Ministries/Departments are advised to explore the possibility of effecting sa vings so as to minimize the additional financial commitment that introduction of the ACP Scheme may entail. (cid:29) 25. The aforesaid Annexure-4 OM dated 9.8.1999 was followed by Annexure-5 OM dated 10.2.2000, by which certain clarifications had been issued. The relevant portions of the said clarifications are quoted below :- (cid:28)F. No. 35034/1/97-Estt(D)(Vol.IV) Government of India, Ministry of Personnel, Public Grievances and Pension (Department of Personnel and Training) New Delhi, 110001 February 10,2000 OFFICE MEMORANDUM Subject : Assured career Progression Scheme for the Central Government Civilian Employees - Clarifications regarding. The undersigned is directed to invite reference to the Department of Personnel a nd Training Office Memorandum of even number dated August 9, 1999 regarding the Assured Career Progression Scheme (ACPS). Consequent upon introduction of the Sc heme, clarifications have been sought by various Ministries /Departments about c ertain issues in connection with implementation of the ACPS. The doubts raised b y various quarters have been duly examined and point-wise clarifications have ac cordingly been indicated in the Annexure. 2., The ACP scheme should strictly be implemented in keeping with the Depart ment of Personnel and Training Office Memorandum of even number dated August 9, 1999 read with the aforesaid clarifications (Annexure), cases where the ACP Sche me has already been implemented shall be reviewed /rectified if the same are not found as to be in accordance with the scheme/clarifications. 3. tory instructions for general guidance and appropriate action in the matter. All Ministries / Departments may give wide circulation to this clarifica 4. Hindi version would follow. ( K.K. Jha ) Director (Establishment). (cid:29) 26. Consolidating the instructions in reference to the ACP, Annexure-C guide lines was issued which is dated 15.5.2002. As per the said guidelines, the fulfi llment of normal promotion norms i.e. bench mark as per ACR grading, seniority-c um-fitness, trade test for industrial employees is a must. Laying down the hiera rchy in the matter of promotion it was laid down as follows :- (cid:28)8. Group ’C’ Non-industrial centrally controlled categories as give n in Annexure-I to this SOP are not required to appear for any test and their fi nancial upgradation will be considered by Departmental Screening Committee to be HIERARCHY (a) conducted by EME Recording after assessment of their suitability. (b) Group ’D’ Non-industrial locally controlled categories are given in Anne xure-II will be given the financial upgradation by publishing DO part-II after a pproval by the Unit Promotion Committee conducted at unit level after assessing their suitability. ' Group ’C’ & ’D’ Industrial Personnel (Locally/Unit controlled) as given Annexure-III will be given the financial upgradation after passing the trade tes t, as per RPs and after approval by Departmental Screening Committee after asses sing their suitability. (d) Selection grade or in-situ promotion which is not a part of Hierarchy sh all not count as promotion e.g. Master Craftsman is not part of hierarchy for em ployees in the Gde I. However, the post of MCM is personal to the individual in the pay scale of Rs. 7000/- and is not to be treated as promotion vide Min. of D ef. letter No. 1(2)/80/D(Civ. I) dated 21 Sep 1982 and further amendments. In th is case, if an individual has been elevated as MCM and has passed supervisor tes t and is eligible for first or second in the scale of Rs. 5000-8000, his pay is to be fixed as clarified vide ser.2 of DOP/OM No. 35034/1/97/Estt Dy(Vol IV) dat ed 10 Feb 2000. (e) Higher pay scale granted without any condition not to count as promotion the case of Draughtsman the pay scale of Draughtsman Gde-I were upgraded to Rs. 5000-8000 and Rs. 5500-9000 instead of equivalent scale of Rs. 4500-7000. (cid:29) 27. As regard the trade test it was laid down as follows : (cid:28)12. TRADE TEST Employees who are eligible for ACP on 09.8.1000 but qualified th e trade test in first attempt after 09.8.1999 to be allowed benefits of ACP from (a) 09.8.1999 and not from date of passing trade test. (b) rom date of passing trade test. Those who qualify in subsequent attempts to be allowed benefits of ACP f (c) efore 09.8.999 or not appeared at all or not passed the trade test. No benefit from 09.8.99 to those who appeared and failed in trade test b (d) g for issue of revised PETITIONER & as per existing RPs. ACP Scheme not linked with vacancy. ACP to be implemented without waitin Hence trade test of Industrial employees completing 12 or 24 years servi (e) ce can be held irrespective of ratio / zone of consideration as per Departmental regulations if any. (i) d HS-II to HS-I. The trade test from Labour to Mate, mate to Skilled, Skilled to HS-II an (f) The trade test is of two types, as under :- (ii) Supervisor’s test for promotion from tradesman to Chargeman. (g) Screening Committee for trade test will meet twice in a year (i.e.) in t he month of Jan and July. Accordingly supervisory trade test is to be conducted in May/Nov. Eligibility for the supervisory trade test will be as under :- (i) ion zone for promotion and have not cleared the trade test. EME Record will circulate the list of persons who were in the considerat The Unit will forward the name of the individuals who are likely to comp (ii) lete 12 years of service and are due for ACP to the respective Base Workshop whe re the trade test is to be conducted. (iii) e respective Unit/Base Workshop. (cid:29) all other trade test wherever applicable for ACP will be conducted by th 28. Learned counsel for the parties have exclusively referred to the Annexur e-7 circular letter dated 20.5.2003 to sustain their points of arguments. The sa id circular letter is on the subject of restructuring of cadre of Artisan staff in Defence Establishments in modification of the recommendations of Fifth CPC. F or a ready reference, the said circular letter dated 20.5.2003 is quoted below : (cid:28)No. 11(1)/2002/D(Civ.1) Government of India Ministry of Defence. New Delhi, the 20th May, 2003. To The Chief of Army Staff The Chief of Air Staff The Chief of Naval Staff The DGOF & all the Heads of Inter Services Organisations. Subject : Restructuring of Cadre of Artisan Staff in Defence Establishments in m odification of recommendations of 5th CPC. Sir, The matter regard restructuring of Cadre of Artisan Staff in Defence Establishme nts has been under consideration of the Government for quite some time. Now in p artial modification of the recommendations of the Vth CPC made in paras 54.16-18 and 54.29 of its report, I am directed to convey the sanction of the President as under 2. The grade structure in the industrial as well as in the non-industrial t rades, wherever already available and the pay-scales of the Defence artisan staf f shall sand modified w.e.f. 1.1.196 as under :- (i) Skilled : Rs. 3050-4590. (ii) (HS-I + HS-II) Highly Skilled : Rs. 4000-6000. (iii) Master Craftsman : Rs. 4500-7000. 3. (a) Wherever the grade structure in the Industrial as well as in the Non-Industrial trades is already existing in the ration of 65:20:15, in the ers twhile Skilled : HS-II : HS-I, the merger of HS-II and HS-I shall be treated to have come into effect from 1.1.96 and the grade structure of Skilled and Highly Skilled categories shall be in the ratio of 65:35 (20 + 15). (b) The post of Maser Craftsman shall not be part of the hierarchy and the p lacement in this grade will not be treated as promotion for Highly Skilled Grade either under normal promotion rules or under ACP Scheme. (c) The selection from Highly Skilled grade to the grade of the Master Craft sman shall be 10% of Highly Skilled Cadre (i.e. 10% of 35% of the total) and the placement in this grade shall be w.e.f. 1.1.96 and upto the date of the issue o f these orders. The placement of the individuals in the posts resulting from the restruc (d) turing and ratio revision, shall be made w.e.f. 1.1.96, min relaxation of the co nditions, if any i.e. trade test etc., as one time measure. The above provisions may also be made applicable, as a special case, in (e) relaxation of the existing rules/instructions to the employees who have either r etired or died after 1.1.96. 4. (i) From the date of issue of these orders, all the trades classifie d as Skilled (including left out trades) in the Industrial as well as in the non -Industrial Estts. Shall now be modified in the following inter-grade ratio :- 1. Skilled 2. Highly Skilled (Rs. 4000-6000): (Rs. 3050-4590) : 45% 55% 3. Master Craftsman (Rs. 4500-7000):25% of the Highly Skilled Grade posts will b e placed in the grade of the Master Craftsman. They will, however, not be a part of the hierarchy. (ii) anctioned/authorized strength. The above-mentioned inter-grade ratio shall be worked out based on the s Since the post of Master Craftsman is not part of the hierarchy, the pla (iii) cement in this grade shall not be treated as promotion for Highly Skilled Grade either under normal promotion rules or under ACP Scheme. The post of Master Craftsman shall continue to be considered as highly s (iv) killed grade for the purpose of promotion to the grade of Chargeman-II (Rs. 5000 -8000). (v) The benefit of the first and second ACP to the skilled workers will be a s per the orders issued by the DOP&T under their OM dated 9.8.99 and subsequent clarifications issued on the subject. (vi) Where there is direct recruitment at the level of HS-I/HS-II in Defence Estts., the number of Master Craftsmen (not exceeding 25% of Highly Skilled) may be decided considering the functional requirements by the concerned administrat ive Sections in the Ministry of Defence in consultation with their concerned int egrated Finance. The placement of the individuals in the posts resulting from the above r (vii) estructuring and ratio revision shall be made from the date of issue of the orde rs, in relaxation of the conditions, if any, as one time measure. (viii) The procedure for selection to the grade of Master Craftsman shall be as laid down in para- 2 & 3 of Ministry of Defence letter No. 1(2)/80/D(Civ.I) dat ed 21st September, 1982, as amended with the exception that the number Master Cr aftsmen in each trade shall be upto 25% of the total number of sanctioned posts in the Highly Skilled grade in each organisation instead of 10% as was provided for in para-2(i) of the aforesaid Ministry of Defence letter. (ix) gly. The existing recruitment rules for the Tradesmen may be amended accordin 5. fence Services Estimates. The expenditure involved will be debitable to the respective heads of De 6. de their U.O. No. 350/PG/03 dated 19.5.2003. This issues with the concurrence of the Ministry of Defence (Finance) vi Yours faithfully, Sd/- (Piara Ram) Under Secretary to the Government of India. (cid:29) 29. On perusal of the said letter it is seen that the post of Master Craftsm an shall not be part of the hierarchy and placement in this grade will not be tr eated as promotion for Highly Skilled Grade either under normal promotion rules or under ACP Scheme. On the other hand, the selection from Highly Skilled Grade to the grade of Master Craftsman shall be 10% of Highly Skilled cadre (i.e. 10% of 35% of the total) and the placement in this grade shall be with effect from 1 .1.1996 and upto the date of the issue of the circular letter. The placement of the individuals in the posts resulting from the restructuring and ratio revision , shall be made w.e.f. 1.1.1996, in relaxation of the conditions, if any, i.e. t rade test etc, as one time measure. 25% of the Highly Skilled Grade posts will b e placed in the grade of MCM. However, they will not form part of the hierarchy. 30. Mr. J. Roy, learned counsel representing the petitioners submitted that the post of MCM being not in the hierarchy of promotion, the learned Tribunal co uld not have issued direction for promotion of the applicant to the said post, M r. Choudhury, learned senior counsel representing the respondent on the other ha nd submitted that the benefit that would accrue to the applicant is because of t he restructuring about which clause-D of the circular letter has indicated. Acco rding to him the said clause is applicable to the applicant which may not be und er the ACP. 31. By the aforesaid circular letter dated 20.5.2003, the Govt. of India in the Ministry of Defence had restructured the cadre of Artisan Staff in Defence E stablishment in modification of the recommendation of Fifth CPC. As noted above, the applicant although was recommended for promotion to the post of MCM in the years 1999, 2000 and 2001, but due to non-availability of vacancy for Pattern Ma ker for MCM he could not be promoted. Apart from the fact that neither the Tribu nal nor this Court can issue any direction for creation of the post of MCM for p romotion of the applicant. Even the respondent authority could not create any po st as the same was fixed for each trade as per their strength. Moreover, the pos t of MCM being not in the avenue of promotion but being only a case of placement , in absence of any vacancy there could not have been any direction for promotio n of the applicant to the said post. As to whether because of the restructuring as indicated in the aforesaid circular letter dated 20.5.2003, the applicant was to be promoted /placed in the post of MCM against the available quota is a matt er to be decided by the authority. However, falling back on the ACP scheme, the Tribunal could not have directed the petitioners for granting the benefit of the same by placing the applicant in the post of MCM as promotion. 32. Above apart, as noted above, the own case of the applicant before the Tr ibunal was for his promotion to the post of Chargeman. However, even under the A CP scheme upgradation cannot be claimed as a matter of right as the same is also subject to fulfillment of other mandatory conditions. The Tribunal also failed to consider that the Grade of Master Craftsman is not in the existing hierarchy as per the recommendation of the Fifth CPC. An employee in the grade of Highly S killed in the pay scale of Rs. 4000 - Rs. 6000/- cannot be granted financial upg radation under the ACP Scheme to the grade of MCM in the pay scale of Rs. 4500 - 7000/-. Further, to be eligible for the financial upgradation under the ACP sc heme, one has to fulfill all the normal promotion norms. One of the mandatory e ligibility conditions for promotion of a Highly Skilled Tradesman to the supervi sory Grade Chargeman-II under the recruitment rules is the passing of the trade test. Further, at -least 8 years of service in the feeder grade is required. It will be pertinent to mention here that the applicant has not passed the Supervis or’s Trade Test for promotion from Tradesman to Chargeman. 33. All the above relevant aspects of the matter escaped the notice of the T ribunal. On the other hand, although the applicant never prayed for promotion to the post of MCM but his case was one of promotion to the post of Chargeman, the learned Tribunal by its impugned judgement and order directed the respondents t o grant promotion to the applicant. While issuing the said direction, the Tribun al did not consider that even under the ACP Scheme one is to qualify for upgrada tion as per normal rules of recruitment. The applicant having not cleared the tr ade test etc., whether could have been promotion or not was not at all considere d by the Tribunal and instead straightway issued the above quoted direction for promotion of the applicant. As noted above, the ACP Scheme was not applicable to the case of the app 34. licant. Mr. Choudhury, learned counsel representing him fairly admitted that the case of the applicant might not be under the ACP Scheme but would be one under the aforesaid circular letter dated 20.5.2003 (Annexure-7) quoted above. It was emphasized by him that the selection from Highly Skilled Grade to the Grade of M CM being 10% of Highly Skilled Cadre (i.e. 10% 35% of the total), the applicant in view of his earlier recommendations for promotion to the post of MCM was enti tled to get the said benefit upon restructuring and ratio revision made effectiv e 1.1.1996. As noted above, it is the specific case of the petitioners that alth ough the applicant was recommended for promotion to the post of MCM on three occ asions but could not be promoted for want of vacancy. 35. The learned Tribunal proceeded with the matter altogether on a different notion of the same. According to the Tribunal, the applicant was entitled to ge t promotion under the ACP Scheme and accordingly issued the aforesaid direction for his promotion from the due date. However, on both counts i.e. an incumbent w ill have to be qualified to earn the upgradation under ACP scheme and the applic ant himself did not ask for his promotion to the post of MCM, but to the post of Chargeman, the Tribunal could not have issued the direction for promotion of th e applicant to the post of MCM. 36. Above being the position, we are of the considered opinion that the impu gned judgement and order dated 09/08/2006 passed by the learned Tribunal in OA N o. 104/2005 is not sustainable in law. Accordingly, the same stands set aside an d quashed. This now leads us to the issue as was argued by Mr. Choudhury, learned c 37. ounsel for the applicant that irrespective of the ACP scheme the applicant was e ntitled to get consideration under the restructuring and ratio revision as envis aged under Annexure-7 circular letter dated 20.5.2003. The circular letter has b een quoted above. In terms of the said circular selection from Highly Skilled gr ade to the grade of MCM shall be 10% of Highly Skilled Cadre. The placement of t he individual in the post resulting from restructuring and ratio revision shall be made w.e.f. 1.1.1996, in relaxation of the conditions, if any, i.e. trade tes t etc. as one time measure. 38. As to whether the applicant would have come under the said scheme of res tructuring and ratio revision is a matter to be decided by the petitioners. Alth ough it has been contended by the petitioners that inspite of the recommendation of the applicant in 1999, 2000 and 2001 for promotion to the post of MCM, he co uld not be promoted for want of vacancy, but it may have to be considered as to whether it being a case of placement and not promotion, the applicant would have earned his placement upon restructuring and ratio revision as envisaged in the said circular letter dated 20.5.2003. Accordingly, while setting aside and quash ing the impugned judgement of the learned Tribunal the matter is remanded back t o the respondents i.e. the present petitioners for consideration of the case of the applicant under the said restructuring and ratio revision. Let a speaking or der be passed in this regard as expeditious as possible preferably within three months from today. 39. The writ petition is disposed of in the above manner leaving the parties to bear their own costs.