T. Satheesh Babu v Union of India and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE SHIRCY V. THURSDAY, THE 13TH DAY OF JULY 2017/22ND ASHADHA, 1939 **OP (CAT).No. 3600 of 2011 (Z) ------------------------------** AGAINST THE ORDER IN OA 364/2009 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 16.06.2011 PETITIONER/APPLICANT: ------------------------ T.SATHEESH BABU, ASSISTANT ENGINEER (WORKSHOP),, FISHERIES SURVEY OF INDIA, MARINE ENGINEERING, DIVISION, KOCHI-682 016, RESIDING AT, KISHOREKUDI, AROOR P.O., ALAPPUZHA DISTRICT-, 688 534. BY ADVS.SMT.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI RESPONDENTS/RESPONDENTS: -------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF AGRICULTURAL,, DEPARTMENT OF ANIMAL HUSBANDRY,, DAIRYING AND FISHERIES, KRISHI BHAVAN,, NEW DELHI-110 037. 2. THE DIRECTOR, INTEGRATED FISHERIES PROJECT,, FORE SHORE ROAD, KOCHI-682 016, (FORMERLY), THE DIRECTOR, NATIONAL INSTITUTE OF FISHERIES, POST HARVEST TECHNOLOGY AND TRAINING, KOCHI- 682 016 (PRESENTLY). 3. THE DIRECTOR GENERAL, FISHERY SURVEY OF INDIA, BOTAWALA CHAMBERS, SIR P.M.ROAD, MUMBAI. 4. THE ZONAL DIRECTORATE, KOCHI BASE FISHERY SURVEY OF INDIA,, KOCHI-682 016. R1-R4 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 13-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **OP (CAT).No. 3600 of 2011 (Z)** **APPENDIX** ## **PETITIONER'S EXHIBITS** EXHIBIT P1- PHOTOCOPY OF ORDER NO.5-16/2002-FY.(T.5)(II) DATED 19.5.2005 OF THE IST RESPONDENT. EXHIBIT P2- PHOTOCOPY OF OFFICE ORDER NO.87/2005 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER VIDE LETTER NO.A6/1-13(TRANSFER) 2005/1337 DATED 13.10.2005. EXHIBIT P3- PHOTOCOPY OF FISHERY SURVEY OF INDIA (MECHANICAL MARINE ENGINEER) RECRUITMENT RULES. EXHIBIT P4- PHOTOCOPY OF O.A.NO.364 OF 2009 PREFERRED BY THE PETITIONER BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXHIBIT P5- PHOTOCOPY OF ORDER DATED 16.6.2001 IN O.A.NO.364 OF 2009 RENDERED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXT.P6 TRUE COPY OF ANNEXURES A1 TO A8 PRODUCED ALONG WITH O.A.NO.364 OF 2009. EXT.P7 TRUE COPY OF MA..NO.627 OF 2010 IN O.A.No. 364 OF 2009 FOR ACCEPTING ANNEXURE A9 DOCUMENT. EXT.P8 TRUE COPY OF MA.A. No.627 of 2010 IN O.A.No.364 of 2009 TO ACCEPT ADDITIONAL ANNEXURE A10 DOCUMENT EXT.P9 TRUE COPY OF ADDITIONAL REJOINDER FILED BY THE APPLICANT TO THE REPLY STATEMENT FILED BY RESPONDENTS 1-4 IN O.A.No.364/09 ALONG WITH ANNEXURE A11 AND A12. EXT.P10 TRUE COPY OF APPLICATION TO ACCEPT ANNEXURE A13 DOCUMENT FILED IN O.A.No.364 of 2009 EXT.P11 TRUE COPLY OF ADDITIONAL REJOINDER FILED BY THE APPLICANT TO THE ADDITIONAL AFFIDAVIT FILED BY THE RESPONDENTS 1-4 IN O.A. 364/2009 ALONG WITH ANNEXURES A14 TO A16 EXT.P12 TRUE COPY OF NOTIFICATION AMENDING FISHERY SURVEY OF INDIA, SERVICE ENTINEER (INVENTORY AND CONTROL) RECRUITMENT (AMENDMENT)RULES, 2001 DT.08.11.2001 ISSUED BY MINISTRY OF AGRICULTURE. EXT.P13 TRUE COPY OF NOTIFICATION NO GSR 656 DT.23.11.2001 ISSUED BY DEPARTMENT OF ANIMAL HUSBANDRY AND DAIRYING./ EXT.P14 TRUE COPY OF OFFICE ORDER NO.F.1-29/99 E.II DT.06.05.2003 ISSUED BY FISHERY SURVEY OF INDIA. RESPONDENTS' EXHIBITS : NIL. /TRUE COPY/ P.S. TO JUDGE. ## **P.R. RAMACHANDRA MENON & SHIRCY V, JJ.** .............................................................................. ## **O.P.(CAT)No.3600 OF 2011** ......................................................................... **Dated this the 13[th] July, 2017** ## **J U D G M E N T** ## **P.R. Ramachandra Menon, J.** Correctness and sustainability of Ext.P5 verdict passed by the Tribunal declining the reliefs sought for, holding that the petitioner is not entitled to get the benefit of second ACP for want of qualification to be promoted to the next post, is under challenge in this Original Petition. There is another grievance to the effect that, by virtue of change of relevant recruitment rules, copy of which has been produced as Annexure A7, the essential qualification of 'Degree' has been taken away and as such, the petitioner, a Diploma holder, ought to have been promoted to the post of Mechanical Marine Engineer w.e.f 01.02.2001. 2. The petitioner joined the service of the second respondent (IFP) as Superintendent (Operation and Repair) way back on 18.01.1979 in the scale of pay of Rs.550-900/-, which came to **2** ## **O.P.(CAT)No.3600 OF 2011** be revised as Rs.1640-2900, pursuant to the acceptance and recommendation of the 4[th] Central Pay Commission. The petitioner put up a claim for granting higher pay scale of Rs.2000-3200/- and since the said claim was not entertained positively, he was compelled to approach the Tribunal by filing O.A. 712 of 1990. Based on the verdict passed by the Tribunal, the said higher pay scale was awarded to him. In the meanwhile, the petitioner came to be promoted as Asst. Engineer (Workshop) on 22.09.1992, which carried the pay scale of Rs.2000-3500/-. Later, by virtue of implementation of the report of the 5[th] Pay Commission w.e.f. 01.01.1996, there was merger of the above two scales of Rs.2000-3200/- and Rs.2000-3500/-. However, the original/entry post of Superintendent (O&R), which was being held by the petitioner remained without change, carrying the scale of pay of Rs.1640-2900/-. 3. In the course of time, taking note of lesser chance for promotion and also because of inadequacy of sufficient higher posts, the Government introduced an Assured Career Progression Scheme (ACP) w.e.f. 09.08.1999. The first ACP benefit was to be **3** ## **O.P.(CAT)No.3600 OF 2011** given on completion of 12 years and the second one on '24' years. By the time the said Scheme was introduced, the petitioner was already given the first promotion as Assistant Engineer (Workshop), from the post of Superintendent. As such, according to the respondents, he was eligible only for the 'Second ACP', which was to be given only on completion of 24 years. Even though 24 years' of service was completed by the petitioner as on 18.01.2003, the benefit of the 'Second ACP' was not given, placing reliance on condition No.6 of the Scheme to the effect that it would be extended only if the incumbent possessed all the requisite qualifications, to be promoted in the post in the hierarchy. Since the next post in the hierarchy was Mechanical Marine Engineer, carrying the basic qualification of Degree and further since the petitioner was not having Degree but only a Diploma, the benefit was not given to him. It was in the said circumstance that the petitioner had approached the Tribunal by filing O.A.757 of 2005 to cause the relevant rules to be amended. 4. The above O.A. was considered and finalised by the Tribunal as per Annexure A3 judgment dated 26.10.2005, ## **O.P.(CAT)No.3600 OF 2011** **4** whereby the respondents were directed to consider the representation preferred by the applicant projecting his grievance. The matter was considered and Annexure A4 order came to be passed on 08.02.2006 stating that the recruitment rules were being amended. But since nothing transpired in the positive, the petitioner approached the Tribunal again by filing O.A.No.18 of 2007, which was disposed of as per Annexure A5 judgment dated 30.01.2007, directing the respondents to finalise amendment of the recruitment rules within the time as stipulated therein. The petitioner was constrained to move the Tribunal by way of Contempt of Court Proceedings, which came to be closed as per Annexure A6 order dated 18.04.2007, taking note of the ongoing steps to have amendment of the rules. It was accordingly, Annexure-A7 rules were brought into force from 30.01.2007, taking away the basic qualification of 'Degree' for being promoted to the post of Mechanical Marine Engineer, in turn enabling the persons like the petitioner who were having Diplomas, also to be considered. 5. The petitioner approached the Tribunal again by way of **5** ## **O.P.(CAT)No.3600 OF 2011** O.A. 364 /2009 seeking to give retrospective application of Annexure A7 Rules and also to grant him the benefit of the 'Second ACP'. The prayers raised in the O.A. are in the following terms: _“i) Direct the respondents to give retrospective effect to Annexure A7 amendment of Recruitment Rule with effect from 9.8.1999 , the date of implementation of ACP Scheme._ _ii) to direct the respondents to grant 1[st] ACP in the pay scale of Rs.10000-15200 with effect from 9.8.1999 and 2[nd] ACP in the scale of Rs.12000-16500 with effect from 18.1.2003 on completion of his 24 years of service._ _iii) to direct the respondents to promote the applicant as Mechanical Marine Engineer with effect from 1.2.2001 with all consequential benefits”_ 6. The prayers were resisted from the part of the respondents. After hearing both the sides, the Tribunal held as per Ext.P5 order dated 16.06.2011, that the petitioner was not entitled to have any relief, particularly with regard to the promotion to the post–Mechanical Marine Engineer w.e.f. 01.02.2001, as the amendment of the rules, whereby he was made eligible to aspire for the post was having effect only from 30.01.2007. It has been clearly conceded from the part of the petitioner that the rules have been implemented w.e.f. **6** ## **O.P.(CAT)No.3600 OF 2011** 30.01.2007 and that since the petitioner had retired from the service only on 31.03.2007, the 2[nd] financial upgradation was given to him w.e.f. 30.01.2007, also granting the consequential benefits . However, the fact remains, whether the stand taken by the respondents that the second benefit of ACP was not to be extended to the petitioner for want of necessary qualification to be promoted to the next post, as accepted and upheld by the Tribunal, is correct or not. 7. The above issue had come up for consideration before the Apex Court , particularly as to whether for claiming the benefit of ACP, was it necessary to possess the higher qualification attached to the higher post. After detailed deliberation, the Apex Court made it clear that promotion to the post on possessing the higher qualification is one thing; whereas grant of benefit under the ACP is a different concept, where qualification does not have any relevance. It was accordingly, that verdict was rendered by the Supreme Court as per order dated 13.4.2011 in **M.N. Raghunatha Kurup and others v. Union of India and others** (Civil Appeal No.3562 of 2007). **7** ## **O.P.(CAT)No.3600 OF 2011** Since the position of law has been asserted in crystal clear terms, this Court does not require any second thought to hold that the reasoning given by the Tribunal in Ext.P5 to deny the benefit of the 'Second ACP' to the petitioner/applicant for not possessing the qualification of 'Degree' is not correct or sustainable. We find that the prayer No.2 raised by the petitioner is liable to be entertained and since the respondents have conceded that the petitioner had completed 24 years' of service on 18.01.2003, we declare that the petitioner is entitled to get the benefit of the 'Second ACP' with effect from that date. 8. The learned Standing Counsel appearing for the respondents submits that the petitioner was given the benefit attached to the post of Mechanical Marine Engineer pursuant to the amendment of the Recruitment Rules before his retirement, w.e.f. 30.01.2007 and hence there may not be much difference with regard to the financial aspects. This is a matter to be considered by the respondents, particularly by virtue of declaration given by this Court that the petitioner is eligible to get the benefit of the 'Second ACP' w.e.f. 18.01.2003. This shall **8** ## **O.P.(CAT)No.3600 OF 2011** be worked out and the deficit, if any, shall be disbursed to the petitioner at the earliest, at any rate within 'three months' from the date of receipt of a copy of the judgment. The Original Petition stands allowed to the said extent. 9. Smt. Sumathy Dandapani, the learned Sr. Counsel asserted before this Court as to the right of the petitioner to get the benefit of the amended rules (Annexure A7) retrospectively w.e.f. 09.08.1999. Absolutely no ground is raised to justify the said prayer. The only reason stated is as to the ongoing battle which was being fought by the petitioner for several years by way of different O.As and incidental proceedings. It is also stated that, both the Institutions (Employers)-'IFP' and 'FSI' are coming under the same Ministry. But that by itself is not sufficient. There may be different scales even within the same Department; the feeder category may differ; the qualifications may differ; and as such, merely because the petitioner has been transferred from the 'IFP' to the 'FSI', it will not lead to any automatic promotion or to give vertical placement in the hierarchy of posts in the latter Institution; unless the rules enable to have such an **9** ## **O.P.(CAT)No.3600 OF 2011** exercise. That apart, Annexure A7 Rules were brought into existence as per the Gazette Notification dated 11.08.2007, however retrospectively w.e.f. 30.1.2007. This Rule, as such is not subjected to challenge in the Original Petition, but for simply making a prayer to give retrospective effect to the said rules. We find it difficult to accept the said proposition. It is turned down accordingly. **P.R. RAMACHANDRA MENON, JUDGE** **SHIRCY V, JUDGE** lk