Paridabi U.P. v Union of India & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ## **`&`** ## **`THE HONOURABLE MR. JUSTICE EASWARAN S.`** ``` TUESDAY, THE 2[ND] DAY OF JULY 2024 / 11TH ASHADHA, 1946 ``` ## **`OP (CAT) NO. 193 OF 2016`** ``` AGAINST THE ORDER DATED 23.06.2016 IN OA NO.466 OF 2013 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH ``` ## **`PETITIONER/S:`** ``` PARIDABI U.P. AGED 56 YEARS W/O.M.P.ATTAKOYA, GRAMA SEVIKA, WOMEN AND CHILD DEPARTMENT, KAVARATTI, RESIDING PERMANENTLY AT UMMATHABIYYAPURA, ANDROTH ISLAND. ``` ``` BY ADVS. SRI.M.R.HARIRAJ SRI.P.A.KUMARAN SMT.VINEETHA B. ``` ## **`RESPONDENT/S:`** - **`1 UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF WOMEN AND CHILD DEVELOPMENT, NEW DELHI 110 001.`** - **`2 ADMINISTRATOR UNION TERRITORY OF LAKSHADWEEP, KAVARATTI, 682 555.`** - **`3 DIRECTOR WOMEN AND CHILD DEVELOPMENT DEPARTMENT, KAVARATHI, UT OF LAKSHADWEEP, 682 555.`** - **`4 C.E.SAROMMABI RETD WOMEN AND CHILD DEVELOPMENT DEPARTMENT, KAVARATHI, UT OF LAKSHADWEEP, 682 555, RESIDING AT YAMINI RESIDENCY, NEAR KENDRIYA VIDYALAYA, KAVARATTI,PIN 682 555.`** - **`5 D.M.ZAHIRABI LVEO, WOMEN AND CHILD DEVELOPMENT UNIT OFFICE, ANDROTH 682551, AT PRESENT AT MINICOY PIN 682 559.`** O.P.(CAT) Nos.193 of 2016 2 - **`6 K.ASMABI LVEO, WOMEN AND CHILD DEVELOPMENT UNIT OFFICE, AGATHI, NOW WORKING AT KILTHAN, PIN 682 558.`** - **`7 C.P.BADANI, LVEO, WOMEN AND CHILD DEVELOPMENT UNIT OFFICE, AGATHI, PIN 682 553.`** - **`8 B.HAVVA RETD LVEO, WOMEN AND CHILD DEVELOPMENT UNIT OFFICE, KADAMAT, RESIDING AT VAYAPURAM HOUSE, KADAMATH,PIN 682 556.`** ``` BY ADVS. SRI.JAGADEESH LAKSHMAN, CGC ``` ``` SRI.S.P.ARAVINDAKSHAN PILLAY SRI.S.A.ANAND SHRI.SAJITH KUMAR V., SC, LAKSHADWEEP ADMINISTRATION ``` ``` THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 02.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` O.P.(CAT) Nos.193 of 2016 3 ## **AMIT RAWAL & EASWARAN S. , JJ. ------------------------O.P.(CAT) No.193 of 2016** **----------------------------------Dated this the 2[nd] day of July 2024** ## **JUDGMENT** AMIT RAWAL, J. The petitioner had approached this Court challenging the order dated 23.6.2016 rendered by the Central Administrative Tribunal (For short, the Tribunal) in O.A. No.466 of 2013 whereby the following claim of the petitioner/applicant has been allowed in part. ## i. To quash Annexure A8 ii. To direct the respondents to consider the applicant for grant of 2nd placement under Assured Career Progression Scheme with effect from 17.4.2006 or in the alternative to consider her for grant of 2nd placement under Modified Assured Career Progression Scheme with effect from 2009, iii. To direct the respondents to consider the applicant for promotion as Mukhya Sevika in preference to respondents 5 to 8 or any other person not having training qualification; O.P.(CAT) Nos.193 of 2016 4 iv. Grant such other reliefs as may be prayed for and the court may deem fit to grant, and v. Grant the costs of this Original Application. ## 2. The brief facts of the controversy are enumerated hereunder: 2.1. The applicant, prior to the joining of the Ladkshadweep Administration, was working in an automonous body under the control of the Boarder Area Project. On cessation of the aforementioned project, was recommended to be absorbed in 2004 and 2011 in the department of the Social Welfare and Culture. The department of Social Welfare and Culture has the cadre of Grama Sevika and Lady Village Extension Officer (herein after referred to as ‘LVEO’) who were being maintained separately. On being absorbed in the aforesaid department, the applicant set up a claim for promotion to the post of Mukhya Sevika. The feeder category post of O.P.(CAT) Nos.193 of 2016 5 the aforementioned post was of Grama Sevika and LVEO much less counting of the adhoc service prior to the training. The case set up was that the private respondents who were serving as LVEO and promoted as Mukhya Sevika were much junior to the applicant as they had not undergone the training in view of the categoric stand taken in the reply and the information received. The claim for second financial up-gradation under the Modified Assured Carrier Progression with effect from 2000 was also claimed. 3. The respondent Administration, along with the party respondents, contested the aforementioned claim by taking the stand that since the applicant was an employee of the Boarder Area Project, the Lakshadweep Social Security Welfare Board though granted the 1[st] ACP but, the 2[nd] claim was not eligible. The Department of Women and Child Welfare though utilized the service of the O.P.(CAT) Nos.193 of 2016 6 Boarder Area Project Staff including the applicant only from 2011 but the fact remains that the applicant/petitioner was never absorbed against any post under the department and all efforts were made to grant service benefits to the applicant and her counterparts, including the ACP/MACP without delay subject to the availability of funds under the Grant-in-Aid. The recruitment rules for the post of LVEO dated 28.3.1981 specified the educational and other qualifications. The aforementioned rules on 28.7.1988 were notified afresh and the qualifications were refixed as pass in three years Diploma in Agricultural and Rural Development or SSLC or equivalent examination with VEOs training for one year at Government recognized training centre, with a note that in case the persons with one year training are not available or who have undergone less than one year’s training shall be appointed, they will be required to undergo further training in any recognized institution in O.P.(CAT) Nos.193 of 2016 7 the manner and period to be decided by the Administrator from time to time during the period of probation, failing which the period of probation will be extended. 4. On analysis of the aforementioned pleadings and the documents placed along with reply, the learned Tribunal declined the relief of promotion but directed the Administration to grant the next MACP and promotion as and when the vacancy arises. 5. Mr. Hariraj, the learned counsel appearing on behalf of the petitioner submitted that the Tribunal did not consider the fact that the petitioner had undergone the training as per the notification dated 2.4.1983, evident from Ext.A4 order dated 4.4.1986. On 16.5.2011, vide Ext.A5, the Department of Child and Welfare, in addition to the office order for absorption of the employees in the administration of the Women and Child Development in a phased manner and also envisioned creation of the post in O.P.(CAT) Nos.193 of 2016 8 the department during the next Plan. There are four(4) sanctioned posts which are manned by the party respondents. Factum of the party respondents having not undertaken the training program is evident from Ext.P9 whereby the exemption was granted after the decision by the Tribunal. In such circumstances the petitioner was liable to be considered as senior to the party respondents and therefore ought to have been promoted as Mukhya Sevika as the scale of LVEO and Grama Sevika were identical, both were the feeder post for purpose of promotion. The petitioner has been working in the Boarder Area Project since 14.4.1982 as evident from Ext.A1. 6. On the other hand, the learned counsel appearing on behalf of the Lakshadweep Administration opposed the aforementioned submissions by supporting the findings of the Tribunal on the premise that the petitioner/applicant O.P.(CAT) Nos.193 of 2016 9 failed to place on record any rules or seniority list prepared after absorption. In fact there was no such case of absorption owing to the fact that all the four posts are being manned and until and unless fresh posts are not created, therefore, cannot stake a claim for promotion much less ask for reversion of the respondents on the basis of the alleged seniority on account of having undertaken the training. The training period as per Ext.P9 dated 3.2.2017 has already been exempted. Even otherwise, services of all the party respondents was regularised in 1983 as per Ext.A9 order. The said order was never challenged. In the absence of any material on record, the Tribunal rightly rejected the claim of the petitioner and issued order in contemplation that there would be creation of posts and prays for dismissal of the petition. O.P.(CAT) Nos.193 of 2016 10 7. We have heard the learned counsel for the parties and appraised the paper book. 8. It is settled law that on absorption the absorbed employees have to be placed under the already employed employees who have been manning the posts having the same cadre or pay scale and for the purpose of promotion to the higher post, would be deemed to be senior. If at all the petitioner/applicant had been senior owing to the fact that he had undergone a training and exemption was granted in 2017, no reference of rules or seniority list has been placed on record to establish the seniority over the party respondents. We would be failing in duty in not relying upon Ext.P8 dated 13.3.2017, the contents of the same reads as under : ## GOVT OF INDIA ## LAKSHADWEEP ADMINISTRATION DEPARTMENT OF WOMEN & CHILD DEVELOPMENT KAVARATTI-682555 F.NO.35/1/2017-W&CD Dated 13-03-2017 O.P.(CAT) Nos.193 of 2016 11 OFFICE ORDER Sub:-W&CD-Establishment-Awarding of Financial up gradations under MACP Scheme to Grama Sevika-Orders issued Ref:- 1. O.M. No.35034/3/2008-Estt (D) Dated: 19-05-2009 of Department Personnel and Training, New Delhi. 2. Minutes Dated: 15-02-2017 of Screening Committee. On the recommendation of the Departmental Screening Committee constituted for the purpose of processing the cases for grant of benefits under the MACP Scheme for Group posts, the Secretary (Women & Child Development) U.T. of Lakshadweep is pleased to order the awarding of 3 Financial up gradations under the MACP Scheme to the following Govt. employees with effect from the dates and on the scale of pay noted against each, in accordance with the instructions contained in the Ministry's O.M. 1[st] cited and subsequent clarification orders thereon |Sl.No.|Name|Designation|Date on which 3rdFinancial up<br>gradation awarded and scale of pay| |---|---|---|---| |1|Smt. UP Paridabi|Grama Sevika|9300-34800+4600 (GP)| The financial up gradation now awarded is purely personal to the employee and have no relevance to their seniority position. As such, there shall be no additional financial up gradation for the senior employee on the ground that the junior employee in the grade have got higher pay scale under the MACP Scheme. The pay of the employee will be fixed under the provision of FR22(1)(a)(1) Department of Personnel and Training O.M.No.16/8/2000- Estt (Pay-I), dated: 2502-2003. The financial benefit allowed under the MACP Scheme shall be final and no pay fixation benefit shall accrue at the time of regular promotion, ie on posting against a functional post in the higher grade. Grant of higher scale of pay shall be conditional to the fact that an employee while accepting the said benefit shall be deemed to have given her unqualified acceptance for regular promotion on occurrence of vacancy subsequently. O.P.(CAT) Nos.193 of 2016 12 This issues with the approval of Secretary (Women & Child Development) vide Diary No.468 Dated: 12-03-2017. (Ashok Kumar) Director Department of Women & Child Development Kavaratti 9. The aforementioned order leaves no manner of doubt that the promotion would be only when there is occurrence of the vacancy which has not so far concededly been in existence. In fact focus ought to have been on creation of posts instead of assumption of being senior to the party respondents. The ACP, after the recommendation of the 6[th] pay commission, was modified and termed as MACP and the benefit were accorded to such incumbent/employees who had no scope for promotion. In other words, stagnated after having rendered the service of 10, 20 and 30 years. No doubt the benefit of MACP and promotion can co-exist if it preceded the promotion, but the order dated 13.3.2013 supra leads to the irresistible conclusion that there was no scope of O.P.(CAT) Nos.193 of 2016 13 promotion and rightly so, the learned Tribunal ordered release of 2[nd] MACP. 10. At this stage Sri.Hariraj, the learned counsel submitted that instead of complying with the order of the Tribunal, the petitioner has been granted the benefit of only 3[rd] MACP. 11. In answer to the above, learned counsel for the Administration submitted that it would be some clerical mistake and would be clarified to the petitioner in due course. For the reasons aforementioned we do not find any illegality or perversity in the order of the tribunal. Original Petition is dismissed accordingly. Sd/- ## **AMIT RAWAL, JUDGE** Sd/- ## **EASWARAN S., JUDGE** NS O.P.(CAT) Nos.193 of 2016 14 ## **`APPENDIX OF OP (CAT) 193/2016`** ## **`PETITIONER ANNEXURES`** - **`ANNEXURE A1 A TRUE COPY OF APPOINTMENT ORDER ON ADHOC BASIS AS GRAMA SEVIKA BY ORDER NO.05/08/81 -SWC DATED 14-041982.`** - **`ANNEXURE A2 A TRUE COPY OF THE LAKSHADWEEP ADMINISTRATION VILLAGE EXTENSION OFFICER(LADY)(GROUP C) RECRUITMENT RULES, 1981.`** - **`ANNEXURE A3 A TRUE COPY OF THE VILLAGE EXTENSION OFFICERS(LADY) (GROUP C NON GAZETTED) RECRUITMENT (AMENDMENT) RULES, 1983.`** - **`ANNEXURE A4 A TRUE COPY OF THE REGULARIZATION ORDER IN THE POST OF GRAMA SEVIKA WITH EFFECT FROM 06-09-1985 BY AN ORDER NO.05/08/81-SWB DATED 04.04.1986.`** - **`ANNEXURE A5 A TRUE COPY OF THE OFFICE ORDER MADE BY THE HONOURABLE ADMINISTRATOR, UTL REGARDING THE ABSORPTION OF BORDER AREA PROJECT STAFF WITH THE DEPARTMENT OF WOMEN AND CHILD DEVELOPMENT BY AN ORDER NO.28/1/2010-WCD DATED 16-05-2011`** - **`ANNEXURE A6 A TRUE COPY OF THE ORDER FOR THE GRANTING OF 1ST FINANCIAL UPGRADATION TO THE APPLICANT BY AN ORDER NO.05/7/2001-SWB DATED 29-01-2009`** - **`ANNEXURE A7 A TRUE COPY OF THE MINUTES OF THE SCREENING COMMITTEE FOR AWARDING ACP UPGRADATIONS HELD ON 07.06.2006.`** - **`ANNEXURE A8 A TRUE COPY THE OFFICE ORDER FOR THE GRANTING OF ACP PLACEMENTS TO THE RESPONDENTS 5 TO 8 BY AN ORDER NO.01-03-2005 W & CD(PART) DATED 27-06-2012.`** - **`ANNEXURE A9 A TRUE COPY OF THE APPOINTMENT ORDER NO.9/18/83-SWC DATED 15.12.1983.`** - **`ANNEXURE A TRUE COPY OF THE REPRESENTATION MADE BY THE A10 APPLICANT DATED 22.12.2012.`** O.P.(CAT) Nos.193 of 2016 15 |**`ANNEXURE`**|**`A TRUE COPY OF THE RECRUITMENT RULE TO THE POST OF`**| |---|---| |**`R2(a)`**|**`GRAMASEVIKA.`**| |**`ANNEXURE`**|**`A TRUE COPIES OF THE APPLICANT'S CERTIFICATES.`**| |**`R2(b)`**|| |**`SERIES`**|| |**`ANNEXURE`**|**`A TRUE COPIES OF THE SENIORITY LIST`**| |**`R2(c)`**|| |**`ANNEXURE`**|**`A TRUE COPY OF THE LETTER DATED 12.05.2011`**| |**`R2(d)`**|| |**`ANNEXURE`**|**`A TRUE COPY OF THE TWO REPRESENTATIONS.`**| |**`R2(e) & f`**|| |**`ANNEXURE`**|**`A TRUE COPY OF THE ORDER NO.9/18/82-SWC DATED`**| |**`R2(g)`**|**`15/12/1984`**| |**`ANNEXURE`**|**`A TRUE COPY OF THE CERTIFICATE F.NO.91680-SWC DATED`**| |**`R5(A)`**|**`25.02.1985 ISSUED BY THE 8TH RESPONDENT-SOCIAL`**| ||**`WELFARE OFFICER, U.T.OF LAKSHADWEEP.`**| |**`ANNEXURE`**|**`A TRUE COPY OF THE LETTER NO.C/84/73 DATED`**| |**`A11`**|**`24.05.1974 ISSUED BY THE PRINCIPAL, EXTENSION`**| ||**`TRAINING CENTRE, THALIPPARAMBA.`**| |**`ANNEXURE 12`**|**`A TRUE COPY OF THE ORDER F.NO.2/5/2005 - SERVICES`**| ||**`DATED JUNE, 2011 ISSUED BY THE DIRECTOR, SERVICES.`**| |**`ANNEXURE`**|**`A TRUE COPY OF THE D.O.NO.12-1/2001-CSWB DATED`**| |**`A13`**|**`31.12.2004 ISSUED FOR THE 1ST RESPONDENT.`**| |**`ANNEXURE`**|**`A TRUE COPY OF THE LETTER NO.F12-1/2001-CSWB DATED`**| |**`A14`**|**`26.05.2005 ISSUED FOR THE IST RESPONDENT.`**| |**`ANNEXURE`**|**`A TRUE COPY OF THE RECRUITMENT RULES DATED`**| |**`R2(h)`**|**`28.7.1988.`**| |**`ANNEXURE`**|**`A TRUE COPY OF THE OFFICE ORDER F.NO.28/1/2010-WCD`**| |**`R2(i)`**|**`DATED 16.05.2011.`**| |**`ANNEXURE`**|**`A TRUE COPY OF THE ORDER F.NO.3/1/2011-SWB DATED`**| |**`R2(j)`**|**`16.04.2014.`**| |**`EXHIBIT P1.`**|**`COPY OF ORIGINAL APPLICATION ALONG WITH THE`**| ||**`ANNEXURES THEREOF.`**| O.P.(CAT) Nos.193 of 2016 16 - **`EXHIBIT P2. COPY OF REPLY STATEMENT WAS FILED BY THE RESPONDENTS 2 AND 3, ALONG WITH ANNEXURES THEREOF.`** - **`EXHIBIT P3. COPY OF REPLY STATEMENT FILED BY RESPONDENTS 5 TO 8 ALONG WITH THE ANNEXURES THEREOF.`** - **`EXHIBIT P4. COPY OF REJOINDER FILED BY THE PETITIONER, ALONG WITH THE ANNEXURES THEREOF.`** - **`EXHIBIT P5. COPY OF REPLY STATEMENT FILED BY THE IST RESPONDENT.`** - **`EXHIBIT P6. COPY OF ADDITIONAL REPLY STATEMENT FILED BY THE RESPONDENTS 2 AND 3.`** - **`EXHIBIT P7. COPY OF FINAL ORDER DATED 23.6.16 IN OA 466/13 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.`** - **`EXHIBIT P8 TRUE COPY OF THE OFFICE ORDER F NO.35/1/2017-W &CD DATED 13.3.2017.`** ``` EXHIBIT P9TRUE COPY OF THE OFFICE ORDER F.NO.03/02/2017 -WCD DATED 24.08.2017 ```