Union of India & Ors. v. K. Jayachandran

IN THE HIGH COURT OF JUDICATURE AT MADRASDate:- 06.08.2008CoramThe Honourable Mr. Justice P.K. MISRAandThe Honourable Mr. Justice K. KANNANW.P. No.6878 of 2008andM.P. Nos.1 and 2 of 20081. Union of India, rep. by Secretary, Government of India, Ministry of Defence, New Delhi.2. The Chief of the Naval Staff, Integrated Headquartersof MOD (Navy),New Delhi.3. The Flag Office Commanding-in-Chief, Headquarters Eastern Naval Command, Visakhapatnam.4. The Commanding Officer, INS Rajali, Camp Post, Arakkonam.... Petitioners / Respondents..vs..1. K. Jayachandran... Respondent/Petitioner2. The Central Administrative Tribunal, rep. by its Registrar, High Court, Chennai – 600 104.... RespondentWrit Petition filed under Article 226 of the Constitution ofIndia, praying to issue a writ of certiorari, to call for the recordsof the 2nd respondent pertaining to the impugned order in O.A. No.767of 2006 dated 7.11.2007 and quash the same. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr. R. Priyakumar, A.C.G.S.C.For Respondents: Mr. V. Parthiban for M/s. Paul and Paul for R1O R D E R(Order of the Court was made by P.K. MISRA, J.)Heard the learned counsel appearing for the parties.2. Though the matter was listed for considering thepetition for vacating the order of stay, since the very same questionis involved in the writ petition itself and the pleadings are alsocomplete, on the consent of the learned counsel appearing for eitherparties, the writ petition itself is taken up for final disposal.3. The present writ petition has been filed by the Union ofIndia against the order passed by the Tribunal in O.A. No.767 of2006. Such Original Application was filed by present respondent No.1for quashing the order dated 8.8.2006 passed by the presentpetitioner No.3 and for a direction to the Department to place him inthe grade of Master Craftsman with effect from 1.1.1996 or any otherdate.4. The undisputed facts are as follows :-Respondent No.1 was initially appointed as Welder at Port Blairin 1980 and subsequently promoted to the post of Welder HighlySkilled Grade II on 17.6.1983. Subsequently, he was transferred tothe Office of the Commanding Officer, INS Rajali, Arakkonam in April,1993. He was subsequently promoted as Welder Highly skilled Grade Iwith effect from 1.7.1996. Respondent No.1 submitted arepresentation dated 28.6.2004 followed by several reminders seekingappointment to the grade of Master Craftsman by grouping non-viablegrade. However, the Department under the order dated 8.8.2006,communicated that since there was only one post of Welder in theOrganisation where such employee was working, it was not possible topromote him as Master Craftsman. Thereafter, the petitioner filedO.A.No.767 of 2006 for quashing such communication and for issuing adirection to the Department for giving promotion to such applicant tothe post of Master Craftsman.4.1 Before the Tribunal, it was contended by the Department thatsince the petitioner was holding the solitary post of Welderavailable in the Organisation and since as per the previousinstruction 10% of the posts from Highly Skilled Grade I could be https://hcservices.ecourts.gov.in/hcservices/ promoted as Master Craftsman and since there was only one sanctionedpost in Welder trade in the Organisation, the ratio of 10% or 25%could not be worked out in respect of the single post of WelderHighly Skilled Grade available in the Organisation.4.2 The Tribunal on consideration of the respective stands ofthe applicant and the department, allowed the Original Application byjudgment dated 7.11.2007 and directed the Department to confer theMaster Craftsman Grade on the applicant with retrospective effectfrom the date on which he had fulfilled all the requirements i.e.,from 1.1.1999. Such order of the Tribunal is in question in thiswrit petition filed by the Union of India and other subordinateofficials.5. In the present writ petition, the Union of India andother writ petitioners have reiterated the stand which had beenhighlighted before the Tribunal. 6. In order to appreciate the rival contentions, it isnecessary to refer to the scheme of upgradation applicable to theDepartment and the changes made therein from time to time in achronological manner.6.1 As per the recommendations of Third Pay Commission, theGovernment sanctioned creation of new Grade of Master Craftsman inthe scale of Pay of Rs.425-15-560-EB-20-640 for the workers in theHighly Skilled Grade I (Scale Rs.38-560), which was communicated byorder dated 21.9.1982. Annexure-I to such letter contained the listof Highly Skilled Trades (Industrial) in the Grade of Rs.380-560eligible for the grade of Master Craftsman. The trade of Welder wasincluded as S.No.42 of such annexure. Paragraph 2 of theCommunication dated 21.9.1982, which prescribes the procedure forselection to the grade of Master Craftsman, is as follows :-“2. The procedure for selection to the grade of MasterCraftsman shall be as follows :-(i)The number of posts of Master Craftsman ineach trade shall be upto 10 per cent ofthe total number of sanctioned posts inHighly Skilled Grade I in eachOrganisation. (ii)The workers should have rendered a totalservice of at least ten years continuouslyin the same or allied trade in the Skilledgrade, out of which three years serviceshould be in the Highly Skilled Grade I. https://hcservices.ecourts.gov.in/hcservices/ (iii)These posts will be personal to theholders of the posts and will lapse withthe retirement / wasting out of theindividuals.(iv)There will be no Trade Test, instead,Assessment Reports on the individualworkers shall be obtained in the proformaattached as Annexure II.6.2 Subsequently, on the basis of the recommendation made by theAnomalies Committee, the Government communicated a letter, dated15.10.1984, whereunder certain other jobs from Semi-skilled Gradewere upgraded to Skilled Grade. This scheme also envisage interalia:-“… (ii) Provision/ introduction of Highly SkilledGrade II (Rs.330-480) and Highly Skilled Grade I (Rs.380-560) for common category jobs listed in Annexure Iclassified as Skilled depending on the functionalrequirement of highly skilled jobs, in the following manneras a benchmark percentage:-(a) Highly Skilled Grade I (Rs.380-560)15%(b) Highly Skilled Grade II(Rs.330-480)20%(c) Skilled grade (Rs.260-400)65%This should be given to the trades enumerated in Annexure Iwith viable number of jobs and if there are non-viabletrades, these should be grouped together for the purpose ofgiving the above benefit. In the trades where the abovebench-mark percentages are introduced, the selection gradefor the skilled grade, if provided, will standsimultaneously abolished as a one time measure.”(Emphasis added)6.3 Subsequently, on the basis of the recommendation of the VthPay Commission, the Government of India issued a letter dated205.2003 regarding restructuring of Cadre of Artisan staff in theDefence Establishments. The relevant paragraphs of suchrestructuring of Artisan Staff are extracted hereunder :-“2. The grade structure in the industrial as well as in thenon-industrial trades, wherever already available and the payscales of the Defence artisan staff shall stand modified w.e.f.1.1.96 as under:-(i)Skilled: Rs.3050-4590 https://hcservices.ecourts.gov.in/hcservices/ (ii)Highly Skilled:Rs.4000-6000(HS-I + HS-II)(iii)Master Craftsman:Rs.4500-7000(a)Wherever the grade structure in the Industrial aswell as in the Non-Industrial trades is alreadyexisting in the ratio of 65:20:15, in theerstwhile Skilled :HS-II ; HS-I, the merger ofHS-II and HS-I shall be treated to have come intoeffect from 1-1-96 and the grade structure ofSkilled and Highly Skilled categories shall be inthe ratio of 65:35 (20+15).(b)The post of Master Craftsman shall not be part ofthe hierarchy and the placement in this gradewill not be treated as promotion for SkilledGrade either under normal promotion rules orunder ACP Scheme.(c)The selection from Highly Skilled grade to thegrade of the Master Craftsman shall be 10% ofHighly Skilled Cadre (i.e. 10% of 35% of thetotal) and the placement in this grade shall bew.e.f. 1-1-96 and upto the date of the issue ofthese orders.(d)The placement of the individuals in the postsresulting from the restructuring and ratiorevision, shall be made w.e.f. 1.1.96, inrelaxation of the conditions, if any, i.e. tradetest, etc., as one time measure.(e)The above provision may also be made applicable,as a special case, in relaxation of the existingrules/instructions to the employees who haveeither retired or died after 1.1.96.(i)From the date of issue of these orders, all the tradesclassified as Skilled (including left out trades) in theIndustrial as well as in the non-Industrial Estts. shall now bemodified in the following inter-grade ratio:-1. Skilled (Rs.3050-4590) : 45%2. Highly Skilled (Rs.4000-6000) : 55%3. Master Craftsman(Rs.4500-7000) : 25% of the HighlySkilled Grade posts will beplaced in the grade of theMaster Craftsman. They willhowever, not be a part of thehierarchy. https://hcservices.ecourts.gov.in/hcservices/ (ii) The above-mentioned inter-grade ratio shall be workedout based on the sanctioned/authorized strength.(iii) Since the post of Master craftsman is not part of thehierarchy, the placement in this grade shall not be treated aspromotion for Highly Skilled Grade either under normal promotionrules or under ACP Scheme.(iv) The benefit of the first and second ACP to the skilledworkers will be as per the orders issued by the DOP & T undertheir O.M. dated 9.8.99 and subsequent clarifications issued onthe subject.(v) and (vi) . . . (omitted as not necessary)(vii) The placement of the individuals in the postsresulting from the above restructuring and ratio revision shallbe made from the date of issue of the orders, in relaxation ofthe conditions, if any, as one time measure.(viii) The procedure for selection to the grade of MasterCraftsman shall be as laid down in para-2 & 3 of Ministry ofDefence letter No.1(2)/80/D(Civ.I) dated 21st September, 1982, asamended with the exception that the number Master Craftsman ineach trade shall be upto 25% of the total number of sanctionedposts in the Highly Skilled grade in each Organisation insteadof 10% as was provided for in para-2(i) of the aforesaidMinistry of Defence letter.(ix) . . . (omitted as not necessary) “7. The contention of the present petitioners, which was notaccepted by the Tribunal, is to the effect that as per such Schemeapplicable in 1982 or 2003, 10% (subsequently enhanced to 25%) of theHighly Skilled Grade I in each Organisation can be selected to thegrade of Master Craftsman. It is highlighted by the petitioners thatas per para 2(i) of the communication dated 21.9.1982, number ofposts of Master Craftsman in each trade shall be upto 10 per cent ofthe total number of sanctioned strength in Highly Skilled Grade I ineach Organisation and since in the concerned Organisation there isonly one post of Welder in the Highly Skilled Grade I, the questionof selecting the applicant to the grade of Master Craftsman was notavailable. It has been further submitted that in the restructuringof Cadre, as per letter, ated 20.5.2003, this position has not beenchanged. Therefore, as per para (viii) of the communication, dated20.5.2003, the procedure for selection in the grade of MasterCraftsman is required to be as laid down in para 2 & 3 of the letterdated 21.9.1982. 8. This submission of the counsel for the petitioners iscombated by the counsel for the contesting respondent by inviting ourattention to the letter dated 15.10.1984, wherein, in para (ii), https://hcservices.ecourts.gov.in/hcservices/ while laying down the percentage available to the Highly SkilledGrade I, the Highly Skilled Grade II and Skilled Grade, it has beenspecifically stated “This should be given to the trades enumerated .. . with viable number of jobs and if there are non-viable trades,those should be grouped together for the purpose of giving the abovebenefit”. It has been further submitted that as per para (viii) ofthe communication dated 20.5.2003, the procedure for selection shallbe as laid down in paras 2 and 3 of the communication dated 21.9.1982as amended with the exception that the number of Master Craftsman ineach trade shall be upto 25% of the total number of sanctionedstrength in the Highly Skilled Grade in each organization instead of10% as was provided earlier. Therefore, it was submitted by him thatsince the instructions in the communication dated 21.9.1982 has beenamended as per the communication dated 15.10.1984, to that extent,the communication dated 20.5.2003 should be interpreted in the lightof the communication dated 15.10.1984.9. Having heard the counsels for both the parties andhaving given our anxious consideration to the questions raised, weare of the considered opinion that the contentions raised by thecounsel for the petitioners cannot be accepted.10. If such contentions were to be accepted, it may sohappen that where the number of posts in a grade of Highly Skilledwould be less than four, a person occupying such post of HighlySkilled Grade I in a particular grade would be deprived of beingpromoted as Master Craftsman, even though juniors to him in othertrades, merely because of more numbers in such trade, would bepromoted as Master Craftsman. Such a narrow interpretation aspropounded by the petitioners would defeat the very object of theRecommendations of the Vth Pay Commission as well as the order whichwas issued in the communication dated 15.10.1984, as per theRecommendation of the Anomalies Committee. It is also to be noticedin this context that, even though in the Communication dated21.9.1982 it was indicated that the number of posts of MasterCraftsman in each trade shall be upto 10%, the Anomaly Committeereconsidered the matter and a subsequent order dated 15.10.1984 wasissued, wherein it was specifically and categorically indicated thatthe percentage of the Highly Skilled Grade I, the Highly SkilledGrade II and Skilled Grade in the ratio of 15 : 20 : 65 is to begiven to the trades with viable number of jobs and if there are non-viable trades, those should be grouped together for the purpose ofgiving the above benefit. In other words, it was clearly intendedthat in case the number of posts in a particular trade was above theviable number, such posts could be worked out and, on the other hand,if the number of posts in the particular trade was non-viable in thesense that only one or few were available, which could not be divided https://hcservices.ecourts.gov.in/hcservices/ by 10, all such non-viable trades were required to be groupedtogether so that necessary percentage could be worked out and thepersons could be fitted against the particular grade such as theHighly Skilled Grade I, the Highly Skilled Grade II or Skilled Grade.11. The above interpretation of ours, receives considerablesupport from the slight change in the language used in thecommunication dated 20.5.2003. Moreover, it is indicated thereinthat the placement in the Grade of Master Craftsman shall not betreated as promotion for the Highly Skilled Grade. 12. Learned counsel for the petitioners emphasised that ithas been clearly indicated that upto 25% shall be treated as MasterCraftsman, which would obviously mean 25% of the trade in question. In our considered opinion, all the instructions contained in thecommunication dated 20.5.2003 should be read along with the previousinstructions and also should be considered harmoniously in order toprevent the possibility of any inequality to the employees, who wouldbe deprived of promotion merely because number of posts in that tradein a particular Organisation is not a viable one or is lesser isnumber.13. Learned counsel for the petitioners has also reliedupon an earlier decision passed by the Tribunal in O.A.No.877 of2004. Such decision has been distinguished under the impugnedjudgment by the Tribunal. That apart, we are unable to accept thebasis of such earlier decision as, in our considered opinion, such anarrow and restricted interpretation is likely to affect many seniorHighly Skilled artisans on the basis of mere fortuitous circumstancethat number of employees of his grade and trade was less than four,making it impossible to work out 25% of such number. Law is wellsettled that a provision is required to be interpreted so as to avoidany anomalous situation so as to avoid the possibility ofinfringement of right to equality. 14. For the aforesaid reasons, we do not find any merit inthis writ petition and it is accordingly dismissed. No costs.Consequently, the connected miscellaneous petitions are closed.Sd/-Asst. Registrar/true copy/ssa/dpkSub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ ToThe Registrar,The Central Administrative Tribunal,High Court, Chennai 600 104.+1 cc to M/s. Paul and Paul, Advocate, SR.No.43041+1 cc to Mr.R. Priyakumar, Advocate, SR.No.43467ORDER IN WP.NO.6878/2008VS(CO)SMK/17.9.08