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WP(C) No. 131 of 2008 Page 1 of 25
IN THE GAUHATI HIGH COURT(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH)
WP(C) 131/2008
1. The Union of India, represented by the Secretaryto the Government of India, Ministry of Defence,New Delhi-110011.
2. The Director General of EME, Army Headquarters,New Delhi 110011.
3. The Estt. Officer, 1 Advance Base Workshop EME,C/o. 99 APO.
4. The Commandant, 1 Advance Base WorkshopEME, C/o. 99 APO.
...........Pet i t ioners
-Vs-
Shri Brij Nandan Sharma,Son of Late M. Sharma,Resident of Narangi Pathar Quarry,Near Anchalik College,P.O. Udayan Vihar,Guwahati -781026, Assam
.Respondent.
BEFORE
THE HONBLE MR. JUSTICE B.K. SHARMA
THE HONBLE MR. JUSTICE L. S. JAMIR
For the petitioner : Mr. J. Roy, Adv.Mr. M. Choudhury, Adv.
For the respondents : Mr. K.N. Choudhury, Sr. Adv.Mr. R. Dubey, Adv..
Date of hearing : 29.05.2013.
Date of judgement : 24.07.2013.
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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 Original 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 Master Craftsman from the date he was eligible for the
ACP. On granting of the ACP, the respondent is to get notional
benefit increasing his pensionary benefits. Be it stated here that the
respondent has already retired from service on attaining 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 trade
test, was promoted from the post of Skilled Grade (Pattern Maker) to
the Highly 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 further 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 belonging to Grade-C
Industrial category retired from service on attaining the age of
superannuation. At that point of time, he was in the pay scale of Rs.
4000 6000/- (revised) of Highly Skilled Grade-I.
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4. When the petitioner was absorbed under the petitioners asSkilled Grade, the Defence Artisan Staff in the Industrial Trade in
various Defence establishments comprised of the following Grade
structures :-
i. Skilled.
ii. Highly Skilled II
iii) Highly Skilled Iiv) Master Craftsman.
5. A Skilled Grade Artisan was eligible to be promoted to the
Highly Skilled Grade-II subject to passing the prescribed trade test.
Similarly, the Highly Skilled 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 Skilled-II or Highly
Skilled Grade-I or Master Craftsman, in the general term is known as
Tradesman.
6. The post of Master Craftsman (MCM) in the Defence
Establishment was created 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 aliaprovided
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
organisation. 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 which 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 Government of India in the Ministry of
Personnel and Public Grievances and Pension vide its OM dated
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09.08.1999 had notified the Assured Career Progression for theCentral 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 Government of India
keeping in view all relevant facts decided to grant two financial
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 regular service respectively
subject to the conditions stipulated therein. As per the said OM, the
ACP Scheme should in no case affect the normal (regular)
promotional avenues available on the basis of vacancies and vacancy
based regular promotion, 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 the relevant rules /
guidelines. The salient conditions for grant of the benefits under the
ACP scheme are as follows :-
1. The ACP Scheme envi sages mer ely placement in t hehigher pay scale /gra nt of f inancial benef i t s (t hrough
f inancial upgra dat ion) only t o t he Government
servant concerned on personal basis and shal l ,
therefore, nei ther amount to func t ional / regular
promot i on nor would requi re creat ion of new post s
f or t he purpose.
2. The f inancial benefi t s under t he ACP Scheme shal l begranted f rom the date of complet ion of the
el igib i l i t y per iod pr escri bed under t he ACP Scheme or
from the date of issue of these instruct ions
whichever is ear l ier .
3. The f i rs t f inancial upgradat ion under the ACPScheme shal l b e al lowed af t er 12 year s of regular
serv i ce and t he second upgradat ion af t er 12 years of
regular serv ice f rom t he dat e of t he f i r st f inanc ia lupgradat ion subjec t to fu l f i l lment of prescr ibed
condi t ion.
4. Tw o f inancial upgrad at ions under t he ACP Scheme int he ent i r e Government serv i ce car eer of an employee
shal l be counted against regular promot ions
(inc luding in-s i tu promot ion and fast- t rack
promot i on t hrough l imi t ed depart ment a l compet i t i ve
examinat ion) avai led f rom t he grade in w hich an
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employee was appointed as a direct recrui t . Thisshal l mean that t wo f inancia l upgradat ions under t he
ACP Scheme shal l be avai lable only if no regular
pr omot i ons duri ng t he prescribed per iods (12 and 24
years) have been avai led by an employee. I f an
employee has already got one regular p romot ion, he
shal l qual i fy for the second f inancial upgradat ion
only on complet ion of 24 year s of r egular serv i ce
under t he ACP Scheme. In case t wo p r ior pr omot ions
on regular ba sis have alr eady been receiv ed by an
employ ee, no benef i t under t he ACP Scheme shal l
accrue t o him.
5. Residency periods (regular serv ice) for grant ofbenefi t s under t he ACP Scheme shal l be count ed f orm
t he gra de in which an employee was appoint ed as a
d i rect recru i t .
6. Ful f i l l ment of normal pr omot i on norms (bench-mark,depar t menta l examinat ion, senior i t y -cum-f i t ness in
t he case of Group D employees, et c) f or grant of
f inancial upgradat ions, per f ormance of such dut ies
as are entrusted to the employees together wi thret ent i on of old designat ions,f i nancial upgradat ions
as personal t o he incumbent f or t he st at ed purposes
and r est r ict ion of t he ACP Scheme for f inancial a nd
certain other benefi ts (House Building Advance,
al lotment of Government accommodat ions,
advances, et c) only wi t hout confer r i ng any pr iv i leges
re la ted to higher s tatus (e.g. inv i ta t ion to
ceremonial funct ions, deputat ion to higher posts,
et c) shal l be ensured f or grant of b enef i t s under t he
ACP Scheme.
7. Financial upgradation under the Scheme shal l begiven t o the next higher grade in accordance wi t h
t he exist i ng hierar chy in a cadr e/cat egory of post s
wi t hout creat ing new post s f or t he purpose.
8. Besides the aforesaid conditions, there are other conditions
which are required 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 clarifications, the authority in the Department of EME
had considered the said scheme in its entirety and thereafter the
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Director of EME issued a Standing Operating Procedure (SOP) videletter dated 15.5.2002 for implementation of the ACP Scheme duly
taking note of the conditions stipulated for financial upgradation
under the ACP Scheme. The said SOP also laid down the basic
conditions including the following :-
( i ) Ful f i l l ment of normal pr omot i on norms i .e. benchmar k as per ACR grading, senior i t y cum f i t ness for
Group D employees or Trade Test for Industr ia lemploy ees is a must .
( i i ) Employees who have completed el i g ibi l i t y serv ice ason 09.08.1999 but r et i red pr ior t o f i rs t meet ing of
Screening Committee may also be considered for
gra nt of benef it s under ACPS if assessment is based
on ACRs. T he same is not possib le i n cases where
passing of t rade t est / w r i t t en examinat ion et c . is
mandat ory f or p r omot i on, as assessment based on
such tests is not possible after the date of
superannuat ion.
10. Pursuant to the Fifth CPC recommendation, recommending for
restructuring of the cadre of Artisan staff in the Defence
establishment, the Government conveyed 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 :-
2. The grade st ruct ure in t he indust r i a l as wel l as in t henon-indust r ia l t rades, w herever al ready avai lab le
and t he pay scales of t he Defence ar t isan st af f shal l
st and modi f ied w .e. f . 1.1.96 as under : -
(i ) Ski ll ed Rs. 3050 4590 .
(i i ) Highl y Ski ll ed Rs. 400 6000.
(HS-I + HS-II )
( i i i ) Mast er Cra f t sman Rs. 4500-7000.
3.(a) Wherever t he grade st ruct ure in the Indust r i a l as
wel l as in the Non-Industr ia l trades is already
ex ist ing in t he rat ion of 65 : 20 : 15, in t he ers tw hi le
Ski l l ed : HS II : HS-I, t he mer ger of HS II and HS-I
shal l be t reated to have come into ef fec t f rom
1.1.96 and t he grad e st ruct ure of Ski l l ed and Highly
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Ski l l ed categori es shal l be in t he rat io of 65 : 35(20+15).
(b) The post of Mast er Craf t sman shal l not be part oft he hierar chy and t he placement in t h is grade wi l l
not be t reat ed as pr omot i on f or Highly Ski l led Gra de
ei t her under normal pr omot i on rules or under ACP
Scheme.
--------------------------------------
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4.( iv) The post of Mast er Craf t sman shal l cont inue to be
consid ered a s Highly Ski l led Grade f or t he purpose of
pr omot ion t o t he Gr ade of Char geman II (Rs. 5000-
8000).
(v ) The benef i t of t he f i rs t and second ACP t o t he ski l l edworkers wi l l be as per the orders issued by the
DOP&T under thei r OM dated 9.8.1999 and
subsequent clar i f icat ions issued on t he subject .
11. Pursuant to the said order dated 20.5.2003, the Ministry of
Defence, Government of India merged the 2 (two) artisan cadres
namely Skilled Grade-II and Highly 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, subject 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 Part-II cadre) and Chargeman II (Part-I
and Part-II cadre) Recruitment Rules, 2002, under which 66 & 2/3%
posts of Chargeman II are to be filled up by promotion and the
following categories of employees are eligible to be considered for
promotion :-
( i ) Tr adesman (Rs. 4000-6000) wi t h not less t han eight yyears service in the grade, subject to passing
necessar y t ra de t est .
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(i i ) Mast er Cr af t sman (Rs. 4500 7000 ) who hav e passed
Superv isory t est wi l l also be consider ed as per t hei r
t ra desmen senior i t y wi t h not less t han cont i nued 8
years serv i ce of t radesman and Mast er Craf t sman.
Earlier their conditions of service were governed by the Corps
of Electrical 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 become Highly Skilled Grade- w.e.f.
1.1.1996, subsequent to the aforementioned order dated 20.5.2003
merging the two cadres, namely, Highly Skilled Grade-II and Highly
Skilled Grade-I. It will be pertinent to mention here that the
recommendations for promotion of the respondent to Master
Craftsman were forwarded to the higher authorities during 1999,
2000 and 2001 but due to non-availability of vacancy 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, subsequent 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 scheme dated
20.5.2003, he was entitled to get financial upgradation to the scale
of pay of Master Craftsman with appropriate fixation of pensionary
benefits. According to the petitioners, though the respondent had
contended that his juniors were 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 respondent was
promoted, no example could be cited.
14. It is in the aforesaid back drop, the respondent had
approached the Tribunal 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 the authority and
consideration of the said representation in accordance with law.
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15. Pursuant to the aforesaid order dated 13.5.2005 passed by the
Tribunal in OA No. 104/2005, the representation submitted by the
respondent on 30.5.2005 was considered by the authority and
rejected by the impugned order dated 17.9.2005 (Annexue-10). Being
aggrieved, the respondent once again approached the Tribunal by
filing another OAregistered and numbered as OA No. 283/2005. The
said OA has been allowed with the following directions :-
7. In t he conspect us f act sand cir cumst ances, we ar e oft he considered v iew t hat t he appl icant cannot be
avai led the second promot ion ad therefore the
imp ugned order dat ed 17.9.05 has not b een issued
under i n good spir i t of l aw and t o be set a side. T he
appl icant is ent i t led t o get t he second ACP which is
on the normal basis to t he next up gradat ion f r om
Rs. 4000-6000/ - t o Rs. 4500-7000/ - as Mast er
Cra f t sman f rom t he date he is el ig ible f or ACP. We
make i t c lear t hat t he appl icant is only ent i t led t o
get not ional benef i t but t hat w i l l have an ef f ect on
his pensionary benef i t s, s ince he has already r et i r ed.
The re l ie f shal l be granted to the appl icant
f or t hwi t h in any case wi t h in 3 mont hs f rom t he dat e
of receip t of t h is order .
OA is al lowed. In t he cir cumst ances no order as t o
costs.
16. Being aggrieved by the said direction, the petitioners filed an
application for review of the said judgement under Section22(f) of
the Administrative Tribunal 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 petitioners
have filed the instant writ petition.
17. While admitting the writ petition, this Court was inclined to
pass an interim order to the effect that the payment as directed by
the learned Tribunal would be subject to the outcome of the writ
petition.
18. We have heard Mr. J. Roy, learned counsel along with Mr. M.
Choudhury, learned counsel for the petitioners. We have also heard
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Mr. K.N. Choudhury, learned senior counsel assisted by Mr. R. Dubey,learned counsel for the applicant/respondent. We have also
considered the entire materials on record. After giving our anxious
consideration to the submissions and the materials on record, our
findings and conclusions are recorded below :
19. In the original application filed before the Tribunal, the prayer
made was as follows:
8. RELIEFS SOUGHT FOR :
Under the fact sand circumstances stated
above, the appl icant humbly prays that Your
Lordships be pleased t o admit t his appl i cat ion and
not ice be issued t o t he respondents t o show cause as
t o why t he re l ie fs sought f or by t he applicant shal l
not be grant ed, cal l f or t he records of t he case and
on perusal of the records and after hearing the
par t ies on t he cause or causes t hat may be shown, bepleased to grant t he fo l lowing re l ie fs : -
8.1 Set -aside/q uash t he impugned Or der da t ed17.09. 2005 pa ssed by t he Respondent No.4.
8.2 Dir ect t he Respondent aut hori t ies to considert he case of t he appl icant f or promot i on t o the
post of Chargeman wi t h ef f ect f rom t he dat e
of implementation of the ACP Scheme on
not i onal basis.
8.3 Direct the Respondent authori t ies to makepayment of al l the pecuniary dues of the
appl icant inc lud ing arrear salary af ter
promot ing the appl icant on not ional basis
f rom t he date of implementat ion of t he ACP
Scheme.
8.4 Direct the Respondent authori t ies to reviseand make payment a l l t he pensionary benef i t s
o f the pe t i t i oner in te rms of the no ta t i on
promot ion.
8.5 Cost of t he appl i cat ion.
8.6 Any other re l ie f or re l ie fs to which theappl icant is ent i t led to, under t he f ac ts and
cir cumst ances of t he case as may be deemed
f i t and proper by t he Hon b le Tr ibunal .
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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 effect 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
entitled 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 noted 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 of chargeman.
4.9. That t he afor esaid represent at ions submi t t edby t he appl icant were deal t wi t h by t he Respondent
author i t ies v ide le t ters dated 29/05/2004 and
19/10/ 2004. T he Respondent aut hori t ies had issued
both t hese let t ers wi t hout any appl icat ion mind wi t h
an absolut e mechanical app r oach. The Respondent s
author i t ies fa i led to cons ider the fac t that the
appl icant was ent i t led for pr omot ion way back in the
year 1999. The Respondent authori t ies simply
re j ect ed t he aforesaid represent at ions submi t t ed by
t he appl icant only on t he ground t hat t he appl icant
had never worked as a Master Craf tsman to be
considered f or t he next grade of promot i on i .e . t he
Post of Chargeman. The Respondent authori t ies
fa i l ed t o take note o f t he fac t t hat t he app l i can t was
wor king in the grade of highly ski l led i n t he pay scale
of Rs. 4000- 6000/ -. As such, he wa s ver y much in t he
feeder cadre for being promoted to the post of
Char geman. Needless t o ment ion here t hat severa l
persons who were placed much below t he appl icant
had been arb i t rar i l y promoted by t he Respondent
aut hori t ies by superseding t he appl i cant .
4.10. That being highly aggri eved and di ssat is f ied
wi t h the repeat ed non-consider at ion of t he case of
the appl icant for being promoted to the post of
Char geman on a nat ional b asis by t he respondent s,
t he appl icant was lef t wi t h no ot her opt ion but t o
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approach t h is Honb le Tr ibunal by way of anOriginal Appl ication being OA No. 104 of
2005.
5.2. For t hat t he Respondent s aut hori t ies have
f a i led t o consider t he fac t t hat t he name of t he
appl icant was approved for the post of Master
Cra f t sman way back in t he year 1999 but could not
be placed in t he said post f or w ant of vacancy and
ef f or t s were made to create a new post of Mast er
Craf tsman for accommodat ing the appl icant. The
post of Mast er Cra f t sman being kept in t he same
hierar chy a s t hat of Highly Ski l l ed, as such t he
pet i t ioner in t erms of t he Assured Car eer Progression
Scheme had alr eady qual i f ied befor e his ret i r ement
f or being promoted t o the post of Chargeman, which
is the next grade in the hierarchy. As such, the
appl icant is ent i t led to be promoted in terms of t he
ACP Scheme even af t er his ret ir ement on not ional
basis wi t h al l consequent i a l benef i t s t hereof .
5.3. For t hat t he Respondent aut hori t ies haveacted in a manner cont r ary t o al l t he set t led and
establ ished princ iples of serv ice jur isprudence in
refus ing to promote the appl icant and promot ing
other persons who were much junior to the
appl icant . Such act ion on the par t of t he respondent
author i t ies is v iola t ive of Art ic les 14 and 16 of t he
Const i t ut ion of India. Al t hough an employee cannot
c la im promot ion as a mat t er of r ight , however , as
has been held by t he Hon ble Supr eme Court , t he
r ight to be cons idered for promot ion is a
fundamenta l r ight . In v iew of the fac ts andcircumst ances t hat have been nar ra t ed hereinabove,
i t was incumbent upon the r espondent s to consider
t he case of t he Appl icant in t he l ight of t he pol icy
decis ion of the Govt. of India. Moreover, the
f undament a l r ight guaranteed t o t he Appl icant under
Art ic le 16 of t he Const i t u t i on of Ind ia was inf r inged
t he moment his immediate j unior w as promot ed.
5.6. For t hat t he claim of t he appl i cant in OA No.
104 of 2005was that h is candidat ure was al ready
forwarded for the post of Master Craf tsman way
back in 1999, however , t he same did not ma t eria l ize
f or w ant of vacancy. However, af t er t he ACP Scheme
was implemented, the appl icant is f i t to be
considered for promot i on not i onal ly t o t he post of
Chargeman, which is the next higher post in the
hierarchy .
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5.8. For tha t t he Respondent No.4 whi le issuing t heimpugned Order dated 17/09/2005 completely
mis inter pr et ed the Ord er dat ed 13/05/ 2005 passed
by his Honbl e Tr ibunal i n OA No. 104 of 2005. The
Respondent No.4 under some miss concept ion of f act
as wel l as of law re j ec ted t he case of t he appl icant
and considered the case of the appl icant for
select ion to the post of Master Craf tsman only,
which was never t he case.
22. In the written statement that was filed by the respondent in
the Tribunal it was contended that the applicant was not entitled to
get promotion to the post 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 2003 as was stated
by the applicant. As noted above, the applicant was first promoted
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 by the respondents in their Written Statement
that the applicant having already earned two promotions he was not
entitled to get further promotions under ACP scheme. It was also
contended that for promotion to the post of chargeman, the
applicant was to earn his eligibility and that it was not automatic.
23. After the impugned judgment and order passed by the learned
Tribunal, the 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 error 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 automatic promotion. However the learned Tribunal by its
impugned judgement and order dated 26.6.2007 rejected the said
review application on the ground of non-availability 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 two financial upgradations as
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recommended by the Fifth CPC on completion of 12 years and 24years, 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 instructions, whichever is later.
Fulfillment of normal promotion norms i.e. bench mark,
departmental examination, 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 employees together with
retention of old designations was also emphasized. Clause 6 and 7 of
the said OM are quoted below :
6. SCREENING COMMIT TEE
6.1 A depar t mental Screening Commit t ee shal l be
const i t ut ed f or t he purpose of pr ocessing the cases f or
grant of benefi t s under t he ACP Scheme.
6.2 T he compo sit ion of t he Screening Commit t ee
shal l be t he same as t hat of t he DPC pr escri bed under t he
relevant Recrui t ment/ Serv ice Rules f or r egular pr omot i on
t o the higher grad e to which f inancial up-gra dat ion is t o be
granted. However, in cases where DPC as per the
pr escribed r ules is headed by t he Chairman/Member of t he
UPSC, t he Screening Commi t t ee under t he ACP Scheme
shal l , i nst ead, be headed by t he Secret ar y or a n off icer of
equivalent r ank of t he concerned Minist r y / Depart ment . In
respect of isolat ed post s, t he composi t ion of t he ScreeningCommi t t ee (wi t h modi f i cat ion as not ed above, i f requi red)
shal l be t he same as t hat of t he DPC f or pr omot ion t o
analogous grade in t hat Minist ry /Depar t ment .
6.3 In ord er t o pr event operat ion of t he ACP Scheme
from resul t ing in to undue st ra in on the admin is t ra t ive
machinery , t he Screening Commit t ee shal l f ol low a t ime-
schedule and meet t wi ce in a f inancial year pr efer ably in
t he f i r st week of Januar y and July f or advance processing
of t he cases. Accord ingly, cases mat uring duri ng the f i r st -
hal f (Apr i l -September) of a par t icular f inanc ia l year f orgrant of benef i t s under t he ACP Scheme shal l be t aken up
f or considera t ion by t he Screening Commit t ee meet i ng in
t he f i rs t week of January of t he prev ious f inanc ia l year .
Simi l ar ly , t he Screening Commit t ee meet ing in t he f i r st
week of July of any f inancial y ear shal l pr ocess t he cases
t hat would be mat uring during t he secondhal f (October-
March) of the same f inancial year. For example, the
Screening Commit t ee meet ing in t he f i r st week of January,
1999 would pr ocess t he cases t hat w ould at t ain mat uri t y
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duri ng t he period Apri l 1, 1999 t o Sept ember 30, 1999 andt he Screening Commit t ee meet ing in t he f i r st week of July,
1999 would pr ocess the cases t hat would mat ure duri ng the
peri od October 1, 1999 t o Mar ch 31, 2000.
6.4 T o make t he Scheme operat ional , t he Cadr e
Contr ol l ing Aut hori t ies shal l const i t ut e t he f i rs t Screening
Commi t t ee of t he curr ent f inanc ia l year wi t h in a month
f rom t he dat e of issue of t hese inst ruct ions t o consider t he
cases t hat have alr eady mat ured or w ould be mat uring up
t o Mar ch 31, 2000 f or grant of b enef i t s under t he ACP
Scheme. T he next Screening Commit t ee shal l be const i t ut edas per t he t ime-schedule suggest ed above.
7. Ministr ies/Depar t ments ar e advised to explore t he
possibi l i ty of effect ing savings so as to minimize the
addi t iona l f inancia l commi t ment t hat in t roduct ion of t he
ACP Scheme may ent ai l.
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 :-
F. No. 35034/ 1/ 97-Est t (D)(Vol.IV)Government of India,
Ministr y of Personnel, Publ i c Gr ieva nces and Pension
(Depart ment of Personnel a nd Tr aining)
New Delhi, 110001
Februar y 10,2000
OFFICE MEMORANDUM
Subj ect : Assured car eer Pr ogression Scheme f or t he
Cent r al Gover nment Civ il ia n Empl oyees
Clar i f icat ions regardi ng.
The unders igned is dir ect ed t o invi t e ref erence to
the Department of Personnel and Training Off ice
Memorandum of even number dat ed August 9, 1999
r egar di ng t he Assur ed Car eer Progression Scheme
(ACPS). Consequent upon int r oduct ion of t he Scheme,
c lar i f icat ions have been sought by v ar ious Minist r ies
/ Dep ar t ment s about cer t a in i ssues i n connect i on w i t h
imp lement at ion of t he ACPS. The doubt s r aised by
var ious quart ers have been duly exami ned and point -
wi se clar i f icat ions have accord ingly been indicat ed
in t he Annexur e.
2., The ACP scheme should str ict ly b e
implemented in keeping with the Department of
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Personnel and Tr aini ng Of f ice Memora ndum of evennumber dated August 9, 1999 read with the
af oresaid clar i f icat ions (Annexure), cases where t he
ACP Scheme has al r eady been impl ement ed shall be
rev iewed / r ect i f ied i f t he same are not f ound as t o
be in accordance wit h t he scheme/c lar i f icat ions.
3. Al l Ministr ies / Depart ments may give wi de
c i rcu la t ion to th is c lar i f i catory ins t ruc t ions for
general guidance and appropriate act ion in the
ma t t e r .
4. Hindi vers ion would f ol low.
( K.K. Jha )
Dir ect or (Est abl i shment ).
26. Consolidating the instructions in reference to the ACP,
Annexure-C guidelines was issued which is dated 15.5.2002. As per
the said guidelines, the fulfillment of normal promotion norms i.e.
bench mark as per ACR grading, seniority-cum-fitness, trade test for
industrial employees is a must. Laying down the hierarchy in the
matter of promotion it was laid down as follows :-
8. HIERARCHY
(a) Group C Non-indust r i a l cent ra l ly cont rol l ed
cat egori es as giv en in Annexur e-I t o t his SOP ar e not
requi red t o appear f or any test and the i r f inanc ia l
upgradat ion wi l l be considered by Departmental
Screening Commit t ee t o be conduct ed by EME
Recordi ng af t er assessment of t hei r sui t abi l i t y .
(b) Group D Non-indust r i a l local ly cont r ol led
cat egori es ar e giv en in Annexure-II wi l l be given t he
f inancial upgrada t ion by publ i shing DO par t - II af t er
approval by the Uni t Promot ion Commit tee
conducted at uni t level af ter assessing their
su i tab i l i t y .
Group C & D Indust r ial Personnel
(Local ly / Unit cont r ol led ) as given Annexure-III wi l l b egiven the f inancial upgradat ion after passing the
t rade tes t , as per RPs and af ter approval by
Departmental Screening Committee after assessing
t hei r su i tab i l i t y .
(d) Select ion grade or in-si t u pr omot i on which is
not a par t of Hierarchy shal l not count as promot i on
e.g. Mast er Craf t sman is not par t of h ierar chy f or
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employ ees in t he Gde I. However , t he post of MCM ispersonal t o t he indiv idual i n t he pay scale of Rs.
7000/ - and is not t o be t r eated as promot ion v ide
Min. of Def. let t er No. 1(2)/80/ D(Civ. I) dat ed 21 Sep
1982 and fur t her amendment s. In this case, i f an
indi vi dual has been elevat ed as MCM and has passed
superv isor t est and is el ig ible f or f i r st or second in
t he scale of Rs. 5000-8000, his pay i s t o be f ix ed as
clar i f ied vi de ser.2 of DOP/OM No. 35034/ 1/97/ Est t
Dy(Vol IV) dat ed 10 Feb 2000.
(e) Higher pay scale grant ed wi t hout any
condi t ion not to count as promot ion the case of
Dr aught sman t he pay scale of Dr aughtsman Gde-I
wer e upgraded t o Rs. 5000-8000 and Rs. 5500 -9000
inst ead of equivalent scale of Rs. 4500-7000.
27. As regard the trade test it was laid down as follows :
12. TRADE TEST
(a) Empl oyees who are el i gible for ACP on
09.8 .1000 but qua l i f i ed the t rade tes t in f i rs t
a t t empt af t er 09.8.1999 t o be al lowed benef i t s of
ACP f rom 09.8.1 999 and not f r om dat e of passing
t rade test .
(b) Those who qual i f y in subsequent at t empts t o
be al l owed benef i t s of ACP f rom da t e of pa ssing
t rade test .
(c) No benef i t f rom 09.8.99 t o t hose who
appeared and f a i led in t rade t est before 09.8.999 or
not appeared at a l l or not passed the t rade test .
(d) ACP Scheme not linked w it h vacancy. ACP t o be
implemented w i t hout wai t ing for i ssue of rev ised
PETITIONER & a s per ex ist ing RPs.
(e) Hence t rade t est of Indust r i a l employees
completing 12 or 24 years service can be held
i r r espect ive of rat io / zone of considerat ion as perDepart ment a l r egulat ions i f any.
( f ) The t rade t est is of t wo t ypes, as under : -
( i ) The t rade t est f rom Labour t o Mat e,
mat e t o Ski l l ed, Ski l l ed t o HS-II and HS-II
t o HS-I.
( i i ) Superv i sor s t est for promot i on f rom
t ra desman t o Chargeman.
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(g) Screening Commit t ee f or t ra de t est wi l l meet
t wi ce in a year (i .e.) in t he month of Jan and July.
Accordingly superv i sory t rad e t est is to be conducted
in May/Nov. El igib i l i t y f or t he superv isor y t rade t est
wi l l b e as under :-
( i ) EME Record wi l l c i rculat e t he l is t of
persons who were in t he consider at ion
zone f or pr omot i on and have not cleared
t he t rade test .
( i i ) The Uni t wi l l f orwar d t he name of t he
indiv i duals who are l ikely t o complet e
12 year s of serv ice and ar e due for ACP
t o t he respect i ve Base Workshop w here
t he t r ade test is to be conducted.
( i i i ) a l l other t rade t est wherever appl icab le
for ACP wi l l be conducted by the
respect i ve Uni t /Base Workshop.
28. Learned counsel for the parties have exclusively referred to
the Annexure-7 circular letter dated 20.5.2003 to sustain their points
of arguments. The said circular letter is on the subject of
restructuring of cadre of Artisan staff in Defence Establishments in
modification of the recommendations of Fifth CPC. For a ready
reference, the said circular letter dated 20.5.2003 is quoted below :
No. 11(1)/20 02/ D(Civ .1)Government of India
Minist ry of Defence.
New Delhi, t he 20t hMay, 2003.
To
The Chief of Army St af f
The Chief of Air St af f
The Chief of Naval St af f
The DGOF& al l t he Heads of Int er Serv ices Or ganisati ons.
Subj ect : Rest ruct ur ing of Cadr e of Art isan St af f in
Defence Establ ishments in modi f icat ion of
recommendat ions of 5t hCPC.
Sir,
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The mat t er r egard rest ruc tur ing of Cadre of Art isanStaff in Defence Establ ishments has been under
consider at ion of t he Government f or qui t e some t ime. Now
in par t ia l modi f i cat ion of t he recommendat ions of t he Vt h
CPC made in par as 54.16-18 and 54.29 of i t s report , I am
dir ect ed t o convey t he sanct ion of t he President as under
2. The grade st ruct ure in t he indust r i a l as wel l as in t he
non-indust r i a l t rades, w herever al ready avai lab le and t he
pay-scales of t he Defence art isan st af f shal l sand modi f ied
w.e. f . 1.1.196 as under : -
(i ) Ski l led : Rs. 3050-4590 .
(i i ) Highly Ski l led : Rs. 4000-6000 .
(HS-I + HS-II )
( i i i ) Mast er Cra f t sman : Rs. 4500-7000.
3. (a) Wherever t he grade st ruct ure in t he Indust r i a l
as well as in the Non-Industrial trades is
a l ready ex ist ing in t he rat ion of 65:20:15, in
t he erst whi le Ski l led : HS-II : HS-I, t he mergerof HS-II and HS-I shal l be t r eat ed t o have come
into ef fec t f rom 1.1.96 and the grade
st r uct ure of Ski l led and Highly Ski l l ed
cat egories shal l be in t he rat io of 65: 35 (20 +
15).
(b) The post of Maser Cra f t sman shal l not be par to f t he hierar chy and t he placement in t h is
grade wi l l not be t reated as promot ion for
Highly Ski l led Grade ei ther under normal
pr omot ion r ules or under ACP Scheme.
(c) The select ion f rom Highly Ski l l ed grade t o t hegrade of t he Mast er Cra f t sman shal l be 10% of
Highly Ski l led Cadr e (i .e. 10% of 35% of t he
t ot al ) and t he placement in t his grade shal l be
w.e. f . 1.1.96 and upto t he date of t he issue of
t hese or ders.
(d) The placement of t he indiv iduals in t he post sresu l t ing f rom the res t ruc tur ing and rat io
revis ion, shal l be made w.e. f . 1.1.96, minre laxat ion of t he condi t ions, i f any i .e . t r ade
t est etc. , a s one t ime measure.
(e) The above provisions may also be madeappl i cable, as a special case, in rela xat ion of
the exist ing rules/ instruct ions to the
employees who have ei ther ret i red or died
a f t e r 1 .1.96.
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4. ( i ) From t he dat e of issue of t hese order s, al l t het ra des classi f ied as Ski l l ed (inc luding lef t out
t ra des) in t he Indust r i a l as wel l a s in t he non-
Indust r i a l Est t s. Shal l now be modi f ied in t he
f o l lowing int er-grade rat io : -
1. Ski l l ed (Rs. 3050 -4590) : 45%
2. Highly Ski l led (Rs. 4000-6000 ): 55%
3. Master Craftsman (Rs. 4500-7000):25% of
t he Highly Ski l led Gr ade post s wi l l b e placed in
t he grade of t he Mast er Craf t sman. They wi l l ,
however , not be a part of t he hierar chy .
( i i ) The above-ment ioned inter-grade rat io shal lbe worked out based on the
sanct i oned/ aut horized st rengt h.
( i i i ) Since t he post of Mast er Craf t sman is not par tof t he hierar chy, t he placement i n this gra de
shal l not be t reat ed as promot ion f or High ly
Ski l l ed Gra de ei t her under normal pr omot i on
rul es or under ACP Scheme.
( iv ) The post of Mast er Cra f t sman shal l cont i nue t obe consider ed as highly ski l led grade f or t he
purpose of promot ion to the grade of
Char geman-II (Rs. 5000-8000).
(v ) The benef i t of t he f i r st and second ACP t o t heski l l ed wor kers wi l l be as per t he orders issued
by t he DOP&T under t hei r OM dat ed 9.8.99
and subsequent clari f ications issued on the
subject .
(v i ) Where t here is di rect recru i t ment at t he leve lof HS-I/HS-II in Def ence Est t s., t he number of
Master Craftsmen (not exceeding 25% of
Highly Ski l led) may be decided consider ing t he
funct ional requirements by the concerned
administ ra t ive Sect ions in t he Minist r y of
Defence in consul t at ion wi t h t hei r concerned
int egra t ed Finance.
(v i i ) The placement of t he indiv iduals in t he post sresul t ing from the above restructur ing andrat io rev ision shal l be made f rom t he dat e of
issue of the orders , in re laxat ion of the
condi t ions, i f any, as one t ime measure.
(v i i i ) The procedure f or select ion to t he grade ofMaster Craf tsman shal l be as laid down in
par a- 2 & 3 of Ministr y of Defence let t er No.
1(2)/8 0/D(Civ. I ) dat ed 21stSept ember, 1982 ,
as amended wi th the except ion that the
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number Mast er Cra f t smen in each tr ade shal lbe upto 25% of t he t ot al number of sanct i oned
posts in the Highly Ski l led grade in each
organisat ion inst ead of 10% as was provid ed
f or in para-2( i ) of t he af oresaid Minist r y of
Defence let t er.
( i x ) The ex is t ing recru i tment ru les for theTr adesmen may be amended accordi ngly.
5 . The expendi t ure invo lved wi l l be debi tab le t o t he
r espect ive heads of Defence Serv ices Est imat es.
6. This issues wi t h t he concurr ence of t he Ministr y of
Defence (Finance) vide their U.O. No. 350/PG/03 dated
19.5.2003.
Yours f a i t h fu l l y ,
Sd/-
(Pia r a Ram)
Under Secret ar y t o t he Government of India.
29. On perusal of the said letter it is seen that the post of Master
Craftsman shall not be part of the hierarchy and placement in this
grade will not be treated 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. trade test etc, as one time
measure. 25% of the Highly Skilled Grade posts will be 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 could not have issued direction for
promotion of the applicant to the said post, Mr. Choudhury, learned
senior counsel representing the respondent on the other hand
submitted that the benefit that would accrue to the applicant is
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because of the restructuring about which clause-D of the circularletter has indicated. According to him the said clause is applicable to
the applicant which may not be under 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 Establishment 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 Maker for MCM he could not be promoted. Apart from the
fact that neither the Tribunal nor this Court can issue any direction
for creation of the post of MCM for promotion of the applicant. Even
the respondent authority could not create any post as the same was
fixed for each trade as per their strength. Moreover, the post 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 promotion 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 matter 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 Tribunal was for his promotion to the post of Chargeman.
However, even under the ACP 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 Skilled in the pay scale of Rs. 4000 Rs. 6000/- cannot be
granted financial upgradation under the ACP Scheme to the grade of
MCM in the pay scale of Rs. 4500 7000/-. Further, to be eligible for
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the financial upgradation under the ACP scheme, one has to fulfill allthe normal promotion norms. One of the mandatory eligibility
conditions for promotion of a Highly Skilled Tradesman to the
supervisory 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 Supervisors Trade Test for
promotion from Tradesman to Chargeman.
33. All the above relevant aspects of the matter escaped the
notice of the Tribunal. 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 to grant
promotion to the applicant. While issuing the said direction, the
Tribunal did not consider that even under the ACP Scheme one is to
qualify for upgradation as per normal rules of recruitment. The
applicant having not cleared the trade test etc., whether could have
been promotion or not was not at all considered by the Tribunal and
instead straightway issued the above quoted direction for promotion
of the applicant.
34. As noted above, the ACP Scheme was not applicable to the
case of the applicant. 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 MCM
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 entitled to get the said benefit upon
restructuring and ratio revision made effective 1.1.1996. As noted
above, it is the specific case of the petitioners that although the
applicant was recommended for promotion to the post of MCM on
three occasions but could not be promoted for want of vacancy.
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35. The learned Tribunal proceeded with the matter altogether ona different notion of the same. According to the Tribunal, the
applicant was entitled to get 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 will have to be
qualified to earn the upgradation under ACP scheme and the
applicant 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 the applicant to the post of MCM.
36. Above being the position, we are of the considered opinion
that the impugned judgement and order dated 09/08/2006 passed by
the learned Tribunal in OA No. 104/2005 is not sustainable in law.
Accordingly, the same stands set aside and quashed.
37. This now leads us to the issue as was argued by Mr. Choudhury,
learned counsel for the applicant that irrespective of the ACP scheme
the applicant was entitled to get consideration under the
restructuring and ratio revision as envisaged under Annexure-7
circular letter dated 20.5.2003. The circular letter has been quoted
above. In terms of the said circular selection from Highly Skilled
grade to the grade of MCM shall be 10% of Highly Skilled Cadre. The
placement of the 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 test etc. as one time measure.
38. As to whether the applicant would have come under the said
scheme of restructuring and ratio revision is a matter to be decided
by the petitioners. Although 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 could 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 quashing the impugned
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judgement of the learned Tribunal the matter is remanded back tothe respondents i.e. the present petitioners for consideration of the
case of the applicant under the said restructuring and ratio revision.
Let a speaking order 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.
JUDGE JUDGE
Sukhamay