IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 4TH DECEMBER 2008 / 13TH AGRAHAYANA 1930 WP(C).No. 32624 of 2008(S) -------------------------- OA.596/2005 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONERS: --------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY MINISTRY OF HOME AFFAIRS, NORTH BLOCK, NEW DELHI. 2. THE SECRETARY, DEPARTMENT OF PERSONNEL AND TRAINING, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSION, NORTH BLOCK, NEW DELHI. 3. THE DIRECTOR GENERAL OF ASSAM RIFLES MAHANIDESHALAYA ASSAM RIFLES, SHILLONG-11, ASSAM STATE. BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,SR.PANEL RESPONDENT: --------------- SENTIMON MATHEW, PUTHENPURAYIL HOUSE, P.O.PANATHADY, KOLICHAL, KASARAGOD - 671 532. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & V.K.MOHANAN, JJ. ---------------------------------------- W.P.(C) No.32624 OF 2008 ---------------------------------------- Dated this the 4th day of December, 2008 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The writ petitioners are the respondents in O.A.No.596/2005, a copy of which is produced as Ext.P4. The respondent herein was the applicant in that O.A. He filed the Original Application, aggrieved by the denial of the benefits under the ACP scheme to him. 2. It is common case that the respondent/applicant joined the service of Assam Rifles as Rifleman (Operator Radio & Line) on 16.9.1982. He passed the departmental examination and was re-mustered as Cipher-III on 5.4.1986. Thereafter, he underwent further training and was classified, later, as Cipher Grade-II and still later, as Cipher Grade-I. According to the applicant, he was entitled to get upgradation as Naik Subedar, on completion of 12 years of service from 16.9.1982. But, he was not given upgradation under the ACP Scheme. Therefore, W.P.(C) No.32624/2008 2 the O.A. was filed, seeking the following reliefs: “i. A DECLARATION that the remustering of the Applicant is only a conversion and not a financial upgradation as per the Assured Progression Scheme. ii) A DECLARATION that the petitioner is entitled for the 1st Financial Upgradation as per the ACP Scheme and to grant the consequential benefits.” 3. The respondents resisted the application, contending that on re-mustering into Cipher category, the applicant was posted as Havildar/Cipher in the scale of pay of Rs.975-1600. For the entry post of Rifleman (Operator Radio & Line) the scale of pay was Rs.200-260. So, his appointment as Havildar/Cipher has to be treated as promotion. Therefore, he is not entitled to get the benefit of ACP scheme, it was contended by the writ petitioners. The Tribunal, after considering the contentions of both sides, allowed the O.A by Ext.P1 order. The reasoning for allowing the O.A. is contained in Paragraph 7 of Ext.P1, which reads as follows: “7. The question that is to be decided is whether remusteration of the applicant as Havildar/Cipher in W.P.(C) No.32624/2008 3 1986 from Rifleman was a financial upgradation disentitling the applicant for the grant of first upgradation under the ACP Scheme which is the stand taken by the respondents. The respondents have relied on the instructions issued at point No.8 in the DOPT letter dated 10.2.2000 providing clarifications on the points of doubt raised by the Departments. According to this clarification, no.8, if the relevant Recruitment Rules provide for filling up of vacancies by direct recruitment, induction through limited departmental competitive examination may be treated as direct recruitment for the purpose of benefit under the ACP Scheme. The example given pertains to the cases of Grade-D employees appointed as LDCs or Stenographers Grade- D/Junior Stenographers inducted as LDCs. If the Recruitment rules, on the other hand provide for filling up of the vacancies on the basis of departmental examination, only such appointments shall be treated as promotion. Therefore the respondents contended that in the instant case, as per the Recruitment Rules at Annexure R-4, the post of Havildar is to be filled up by considering members of the Assam Rifles holding the rank of Rifleman in the trade of Operator Radio Line with 8 years service in the grade and not by direct recruitment. As such, the applicant's appointment as Havildar/Cypher has to be treated as promotion. These contentions are not acceptable for the reasons that in the first instance, no departmental examination has been prescribed under the Recruitment Rules and under column 13 thereof regarding constitution of DPC in the case of promotions, it has been clearly indicated that it is 'not applicable' making it clear that the consideration of the members of the Assam Rifles for conversion to Cypher category is not to be considered as 'promotion'. W.P.(C) No.32624/2008 4 Secondly, these Recruitment Rules as averred by the respondents have been issued in the year 2000 only. The applicant had been remustered into Cypher category in 1986. It is therefore evident that these rules were not also applicable at that point of time. It is also noticed that the applicant was remustered to the post of Havildar/Cypher before he had completed even four years of service. Therefore going by all these special circumstances, it has to be concluded that his appointment in the Cypher category can only be termed as 'conversion' and not as 'promotion' as contended by the respondents. This view is buttressed further by the clarification on the ACP Scheme at Annexure A4 communicated by the Ministry of Home Affairs regarding personnel of the Border Security Force (BSF) wherein at points (c) and (d) thereof it has been clearly stated that appointment of Constable (General Duty) after qualifying in the conversion test and appointment into Cypher category will be treated as conversion and promotion. Though the respondents contended that these clarifications were relevant only for BSF personnel, we are not convinced why the same cannot hold good for the personnel in Assam Rifles when the categories being similar and duties and functions are more or less similar though technically they belong to two different organisations. Further as already stated above even the clarification of DOPT dated 10.2.2000 relied on by the respondents and the Recruitment Rules to the post of Havildar do not lend any support to the stand taken by the respondents.” W.P.(C) No.32624/2008 5 4. Based on the above finding, the writ petitioners were directed to give the respondent herein upgradation as per the ACP scheme on completion of 12 years' service from 1986. Feeling aggrieved by the above said order of the CAT, this writ petition is filed. 5. The learned counsel for the petitioners vehemently contended that the respondent's posting as Havildar/Cipher in the scale of 975-1600 is a promotion and therefore he is ineligible for further upgradation, in view of the total service rendered by him. The applicant was discharged from service on 1.9.2004, based on his application for voluntary retirement. So, he did not render sufficient service, without getting promotion, to make him eligible for upgradation. But, we notice that the appointment of the applicant as Havildar/Cipher is not a promotion, which will dis-entitle him for the benefit of upgradation under the ACP scheme. The above fact is clear from the clarification issued by the department as per Ext.P5(20). The relevant clarification reads as follows: W.P.(C) No.32624/2008 6 Points of doubt Clarification “Appointment on the basis of limited departmental examination by which an employee joined a new service should be treated as promotion or not. For example, in case of Group D employees appointed as LDCs or Grade D stenographers appointed from amongst LDCs should be treated as direct recruits or not in the respective higher grades. If the relevant recruitment Rules provide for filing up of vacancies of Stenographers Grade 'D'/Junior Stenographers by direct recruitment, induction of LDC's to the aforesaid grade through Limited Departmental Competitive Examination may be treated as direct recruitment for the purpose of benefit under ACPS. However, in such cases, service rendered in a lower pay scale shall not be counted for the purpose of benefit under ACPS. The case of Grade 'D' employees who become LDCs on the basis of departmental examination stand on different footing. In their case, relevant Recruitment Rules prescribe a promotion quota to be filled up on the basis of departmental examination. Therefore, such appointments shall be counted as promotion for the purpose of ACPS. In such situation, past regular service shall also be counted for further benefits, if any, under the scheme.” 6. The above clarification would show that if a person in the lower grade comes to the higher grade through limited departmental competitive examination, the same will be treated as direct recruitment for the purpose of ACP scheme. But, if a W.P.(C) No.32624/2008 7 person clears the departmental examination and gets appointment in the promotion quota as per the recruitment rules, the same shall be treated as promotion for the purpose of said scheme. In this case, we are of the view that the case of the applicant almost falls under the 1st part of the above clarification issued as per Ext.P5. At any rate, it cannot be treated as promotion. Only a promotion will deny him the benefits under the ACP Scheme. Ext.P2 is the rule, as per which the applicant was appointed to the Cipher category. Rule 5 of Ext.P2 shows the method of selection. The said rule reads as follows: “Procedure for selection The preliminary assessment of suitability of volunteers for transfer to cipher category will be made by a board of officers (including one cipher officer /JCO). The board will be convened under the arrangements of this Headquarters (CSO's Branch). The Board will ensure a satisfactory standard of volunteers in respect of the following:- a) Knowledge of English. b) Aptitude for figure work. c) General Knowledge of military matteers. d) Simple mathematics.” 7. The above quoted rule would show that the method of appointment is by transfer from volunteers. The selection is W.P.(C) No.32624/2008 8 made by a Board convened for the said purpose. So, it cannot be said to be a promotion as per the above quoted clarification. Though this is not direct recruitment, it should be treated as direct recruitment for the purpose of ACP Scheme, as it is an appointment by transfer from among the volunteers, who clear the selection process. Further, Ext.P3 would show that the minimum rank of Operator Cipher will be Havildar. The relevant rule is Rule 5 of Ext.P3, which reads as follows: “5. To Hav (Cipher). The minimum rank of operator Chipher will be Havildar. There will be no direct recruitment to this trade. Candidates to undergo Cipher conversation training will be drawn from all trades of Signal personnel after a selection examination to be conducted by CSO Assam Rifles. On successful completion of the Cipher conversion training they will promoted to the rank of Hav under orders from HQ IGAR.” 8. So, the volunteers who come on transfer from other categories have to occupy the post of Havildar, which is the lowest post. Though the above quoted rule speaks of promotion to that post, in effect, it is not promotion as contemplated under Ext.P5, but, only an appointment after undergoing Limited W.P.(C) No.32624/2008 9 Competitive Departmental Examination. So, we are of the view that the order of the C.A.T, which treated his appointment as Cipher/Havildar as direct recruitment for the purpose of ACP scheme, cannot be said to be illegal or irrational. We agree with the reasons and conclusions of the Tribunal. 9. The learned counsel for the writ petitioners pointed out that the applicant is a member of one of the armed forces of the Union, namely, Assam Rifles. Therefore, by virtue of Section 2 of the Administrative Tribunals Act, the C.A.T. has no jurisdiction to deal with his service matter. But, we notice that though the said point was taken in the reply statement filed before the C.A.T., the same was not argued before the Tribunal. So, the Tribunal did not deal with that point. The C.A.T. cannot be blamed for not considering a point raised before it. Since the respondent is a retired employee, he could have approached any Bench of the C.A.T., provided, the Tribunal has jurisdiction to entertain the matter. But, we feel that if the writ petitioners do not have a case on merit, this Court is not justified in interfering with the impugned order on technical grounds, invoking its W.P.(C) No.32624/2008 10 jurisdiction under Article 226 of the Constitution of India. The said jurisdiction is conferred to advance justice and not to stifle it. The view taken by us is supported by the decision of the Apex Court in Mohammad Swalleh v. Third Additional District Judge, Meerut [1988 (1) SCC 40]. In the said decision the Apex Court held as follows: “7. It was contended before the High Court that no appeal lay from the decision of the Prescribed Authority to the District Judge. The High Court accepted this contention. The High Court finally held that though the appeal laid (sic no appeal lay) before the District Judge, the order of the Prescribed Authority was invalid and was rightly set aside by the District Judge. On that ground the High Court declined to interfere with the order of the learned District Judge. It is true that there has been some technical breach because if there is no appeal maintainable before the learned District Judge, in the appeal before the learned District Judge, the same could not be set aside. But the High Court was exercising its jurisdiction under Article 226 of the Constitution. The High Court had come to the conclusion that the order of the Prescribed Authority was invalid and improper. The High Court itself could have set it aside. Therefore in the facts and circumstances of the case justice has been done though, as mentioned hereinbefore, technically the appellant had a point that the order of the “District Judge was illegal and improper. If we reiterate the order of the High Court as it is setting aside the order of the Prescribed Authority in exercise of the jurisdiction under Article 226 of the Constitution then no exception can be taken. As mentioned hereinbefore, justice has been done W.P.(C) No.32624/2008 11 and as the improper order of the Prescribed Authority has been set aside, no objection can be taken.” Accordingly, the writ petition is dismissed. The writ petitioners are given one month's time from today to implement the order of the C.A.T. (K.BALAKRISHNAN NAIR, JUDGE) (V.K.MOHANAN, JUDGE) ps