A. Gheevargheese v. Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY ,THE 26TH DAY OF NOVEMBER 2018 / 5TH AGRAHAYANA, 1940** ## **OP (CAT).No. 52 of 2018** **ORDER IN OA 161/2017 of CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH DATED 26-02-2018** ## **PETITIONER/S:** ## **A.GHEEVARGHESE** **AGED 44 YEARS, S/O.A.ALPHONSE, TURNER, MARINE ENGINEERING DIVISION, FISHERY SURVEY OF INDIA, FORE SHORE ROAD,COCHIN-682 016, RESIDING AT "MUTHIRAVILLA HOUSE", JANATHA ROD, VYTTILLA.P.O.,COCHIN.682 019. BY ADVS. SRI.P.V.SALEEM SMT.S.LAKSHMY SRI.M.A.SHAFIK** ## **RESPONDENTS:** - **1 UNION OF INDIA REPRESENTED BY SECRETARY, DEPARTMENT OF ANIMAL HUSBANDRY, DAIRYING AND FISHERIES, MINISTRY OF AGRICULTURE, NEW DELHI.110 001.** **2 THE DIRECTOR GENERAL FISHERY SURVEY OF INDIA, PLOT NO.2A,UNIT NO.12, SASSOON DOCK, COLABA, MUMBAI.400 005.** **3 THE ZONAL DIRECTOR, FISHERY SURVEY OF INDIA, KOCHI.682 016.** **4 S.KALESAN, AGED 53 YEARS, S/O.M.K.SREEDHARAN, MILLING MACHINE OPERATOR, FISHERY SURVEY OF INDIA, KOCHANGADI,KOCHI-682 005, RESIDING AT GOWRI BHAVAN, NO.16/1981-B, ST.MARY'S CHAPPEL ROAD, THOPPUMPADY, KOCHI.682 005.** **BY ADVS.** **SRI.M.ALFRED LIONEL WINSTON SRI.T.V.VINU, CGC SMT.KALA T.GOPI SRI.T.C.GOVINDA SWAMY THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 26.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** O.P.(CAT) No.52 of 2018 -2- ## **JUDGMENT** ## **V.G.Arun, J.** **This original petition is filed aggrieved by the order of the Central Administrative Tribunal in O.A.No.161 of 2017. The original application was filed by the petitioner herein seeking the following reliefs:** **“(i) To call for the records relating to Annexure A1 to A9 and to declare that the preference given for Milling Machine Operator under Column 12 of the Schedule and Note (4) of A-1 Recruitment Rules are discriminatory and against the Equality Clauses under Article 14 and 16 of the Constitution of India.** **(ii) To Quash A-1 Recruitment Rules to the extent it gives preference for Milling Machine Operator under Column 12 of the Schedule and the Note (A); being arbitrary and** O.P.(CAT) No.52 of 2018 -3- **discriminatory;** **(iii) To direct the respondents to amend the Recruitment Rules in order to give equal opportunity to all feeder cadres.** **(iv) To direct the respondents to conduct promotion to the cadre of Asst. Foreman (machine Shop) only after amendment as prayed for in prayer (iii) and to consider the applicant also on equal terms with Milling Machine Operator.”** **2. The case of the petitioner is that he had joined as Turner in the Integrated Fisheries Project on 18.2.1999. In the Integrated Fisheries Project, his next promotion was to the post of Assistant Foreman (Machine Shop). While the petitioner was continuing in the service of the Integrated Fisheries Project, the Ministry of Agricultural transferred certain posts in the Integrated Fisheries Project along with personnel** O.P.(CAT) No.52 of 2018 -4- **to the Fisheries Survey of India as per Annexure A2. Thereafter, Annexure A1 Recruitment Rules was framed by the Fisheries Survey of India. Under Annexure A1 Recruitment Rules, the post of Assistant Foreman (Machine Shop) at column 12, is to be filled up by way of promotion in the following manner:** **“(i) Milling Machine Operator in the pay scale of Rs. 5200-20200 with Grade Pay of Rs.2400 with five years service in the grade after appointment thereto on regular basis or a combined service of eight years in the post of Milling Machine Operator and Machinist in the pay scale of Rs.5200-20200 with Grade Pay of Rs.1900 put together.** ## **or** **(ii) Turner and Machinist in the pay scale of Rs.5200-20200 with Grade Pay of Rs.1900 with Diploma in Mechanical Engineering with five years regular service in the grade and those with Industrial Training Institute Certificate in Machinist.** **or** O.P.(CAT) No.52 of 2018 -5- **(iii) Turner Trade with ten years of service and those without Industrial Training Institute Certificate with fifteen years of service.** **Note : (a) On each occasion of promotion, the eligibility list shall be prepared duly placing the employees holding the post of Milling Machine Operator above the others, as per the seniority position in respective posts.”** **3. The petitioner had filed the original application being aggrieved by 'Note-(a)' on the premise that it completely defeats his chance of promotion, inasmuch as on each occasion of promotion, only the Milling Machine Operator will be considered and promoted and the other category cannot even aspire for promotion, if the Note is retained as such.** **4. From a reading of the impugned order, it is seen that elaborate arguments were advanced in support of the prayer to declare Note-(a) to** O.P.(CAT) No.52 of 2018 -6- **column 12 of Annexure A1 Recruitment Rules as unconstitutional, the same being discriminatory and against the equality clauses under Article 14 and 16 of the Constitution of India. It may also be pertinent to mention that other than the grounds based on the violation of equality clauses, the petitioner had also raised a challenge against Note-(a) to Column 12 of Annexure A1 Recruitment Rules on the ground that it is in violation of the agreement, which the parties had entered into at the time of transfer effected as per Annexure A2. Based on the pleadings and the arguments advanced, the Tribunal had raised a question regarding the issue to be decided in the following manner:** **“11. The short question to be considered is whether Annexure Al Recruitment Rules which gives priority to the Milling Machine Operator above** O.P.(CAT) No.52 of 2018 -7- **the Turners and Machinists for promotion to the post of Assistant Foreman (Machine Shop) in FSI is to be declared unconstitutional or not ?”** **5. Thereafter, though, in the impugned** **order, the arguments advanced by the learned counsel for the applicant therein is extracted** _**in extenso**_ **, the consideration of the issue involved is limited to the question as to whether the alleged undertaking would bind the Department in the matter of promotion to the post of Assistant Foreman (Machine Shop) and if so, whether that could be taken as a ground for setting aside Note-(a) to column 12 of Annexure A1 Recruitment Rules. Based on the decision of the Honourable Apex Court in CMD/Chairman, BSNL and others v. Mishri Lal and others in Civil Appeal No.427 of 2008, the Tribunal went on to hold that the applicant has no valid ground to challenge** O.P.(CAT) No.52 of 2018 -8- **Annexure A1 Recruitment Rules for the reason that the same is not in tune with the undertaking made by the official respondents as reflected in Annexure A5. After a careful scrutiny of the order of the Tribunal, we are unable to find any specific consideration and finding on the question raised by the Tribunal in the impugned order. The legality of Note-(a) to Column 12 of Annexure A1, based on the main grounds of challenge canvassed by the petitioner is not seen to have been considered and answered in the impugned order.** **6. In that view of the matter, we deem it appropriate that a decision is rendered by the Tribunal on the question involved viz; as to whether the preference given to Milling Machine Operator as per Note-(a) to column 12 of Annexure A1 Recruitment Rules is valid and** O.P.(CAT) No.52 of 2018 -9- **sustainable. For the said purpose, we hereby remand O.A.161 of 2017 to the Tribunal for fresh consideration based on the pleadings on record. Therefore, the finding of the Tribunal that there are no vitiating circumstances like arbitrariness or unconstitutionality violating equality provisions of Articles 14 & 16 of the Constitution, is hereby set aside. Since the matter is being remanded for the limited purpose of considering the question formulated above, it would be appropriate if the Tribunal renders a decision on the original application within a period of two months from the date of receipt of a copy of this judgment.** **The interim order dated 16.3.2018 granted by this Court staying the appointment to the post of Assistant Foreman (Machine Shop) will be retained till the final decision in the original** O.P.(CAT) No.52 of 2018 -10- ## **application is rendered by the Tribunal.** **The writ petition is disposed of as above.** **Sd/C.T.RAVIKUMAR JUDGE** **sd/V.G.ARUN JUDGE** **Scl/26.11.** O.P.(CAT) No.52 of 2018 -11- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE ORIGINAL APPLICATION NO.180/00161/2017 FILED BEFORE THE C.A.T.** **EXHIBIT P2** **TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENT IN THE O.A.NO.180/161/2017.** **EXHIBIT P3** **TRUE COPY OF THE M.A.NO.660/2017 FILED BY THE 4TH RESPONDENT.** **EXHIBIT P4** **TRUE COPY OF THE REJOINDER FILED BY THE BEFORE THE C.A.T. IN O.A.NO.161/2017.** **EXHIBIT P5 TRUE COPY OF THE ADDL. REPLY STATEMENT FILED BY THE RESPONDENTS 1-3.** **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 26.2.2018 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL IN O.A.NO.180/161/2017.**