IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 06.08.2008 Coram The Honourable Mr. Justice P.K. MISRA and The Honourable Mr. Justice K. KANNAN W.P. No.6878 of 2008 and M.P. Nos.1 and 2 of 2008 1. Union of India, rep. by Secretary, Government of India, Ministry of Defence, New Delhi. 2. The Chief of the Naval Staff, Integrated Headquarters of MOD (Navy),New Delhi. 3. The Flag Office Commanding-in-Chief, Headquarters Eastern Naval Command, Visakhapatnam. 4. The Commanding Officer, INS Rajali, Camp Post, Arakkonam. ... Petitioners / Respondents ..vs.. 1. K. Jayachandran ... Respondent/Petitioner 2. The Central Administrative Tribunal, rep. by its Registrar, High Court, Chennai – 600 104. ... Respondent Writ Petition filed under Article 226 of the Constitution of India, praying to issue a writ of certiorari, to call for the records of the 2nd respondent pertaining to the impugned order in O.A. No.767 of 2006 dated 7.11.2007 and quash the same. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr. R. Priyakumar, A.C.G.S.C. For Respondents : Mr. V. Parthiban for M/s. Paul and Paul for R1 O R D E R (Order of the Court was made by P.K. MISRA, J.) Heard the learned counsel appearing for the parties. 2. Though the matter was listed for considering the petition for vacating the order of stay, since the very same question is involved in the writ petition itself and the pleadings are also complete, on the consent of the learned counsel appearing for either parties, the writ petition itself is taken up for final disposal. 3. The present writ petition has been filed by the Union of India against the order passed by the Tribunal in O.A. No.767 of 2006. Such Original Application was filed by present respondent No.1 for quashing the order dated 8.8.2006 passed by the present petitioner No.3 and for a direction to the Department to place him in the grade of Master Craftsman with effect from 1.1.1996 or any other date. 4. The undisputed facts are as follows :- Respondent No.1 was initially appointed as Welder at Port Blair in 1980 and subsequently promoted to the post of Welder Highly Skilled Grade II on 17.6.1983. Subsequently, he was transferred to the Office of the Commanding Officer, INS Rajali, Arakkonam in April, 1993. He was subsequently promoted as Welder Highly skilled Grade I with effect from 1.7.1996. Respondent No.1 submitted a representation dated 28.6.2004 followed by several reminders seeking appointment to the grade of Master Craftsman by grouping non-viable grade. However, the Department under the order dated 8.8.2006, communicated that since there was only one post of Welder in the Organisation where such employee was working, it was not possible to promote him as Master Craftsman. Thereafter, the petitioner filed O.A.No.767 of 2006 for quashing such communication and for issuing a direction to the Department for giving promotion to such applicant to the post of Master Craftsman. 4.1 Before the Tribunal, it was contended by the Department that since the petitioner was holding the solitary post of Welder available in the Organisation and since as per the previous instruction 10% of the posts from Highly Skilled Grade I could be https://hcservices.ecourts.gov.in/hcservices/ promoted as Master Craftsman and since there was only one sanctioned post in Welder trade in the Organisation, the ratio of 10% or 25% could not be worked out in respect of the single post of Welder Highly Skilled Grade available in the Organisation. 4.2 The Tribunal on consideration of the respective stands of the applicant and the department, allowed the Original Application by judgment dated 7.11.2007 and directed the Department to confer the Master Craftsman Grade on the applicant with retrospective effect from the date on which he had fulfilled all the requirements i.e., from 1.1.1999. Such order of the Tribunal is in question in this writ petition filed by the Union of India and other subordinate officials. 5. In the present writ petition, the Union of India and other writ petitioners have reiterated the stand which had been highlighted before the Tribunal. 6. In order to appreciate the rival contentions, it is necessary to refer to the scheme of upgradation applicable to the Department and the changes made therein from time to time in a chronological manner. 6.1 As per the recommendations of Third Pay Commission, the Government sanctioned creation of new Grade of Master Craftsman in the scale of Pay of Rs.425-15-560-EB-20-640 for the workers in the Highly Skilled Grade I (Scale Rs.38-560), which was communicated by order dated 21.9.1982. Annexure-I to such letter contained the list of Highly Skilled Trades (Industrial) in the Grade of Rs.380-560 eligible for the grade of Master Craftsman. The trade of Welder was included as S.No.42 of such annexure. Paragraph 2 of the Communication dated 21.9.1982, which prescribes the procedure for selection to the grade of Master Craftsman, is as follows :- “2. The procedure for selection to the grade of Master Craftsman shall be as follows :- (i) The number of posts of Master Craftsman in each trade shall be upto 10 per cent of the total number of sanctioned posts in Highly Skilled Grade I in each Organisation. (ii) The workers should have rendered a total service of at least ten years continuously in the same or allied trade in the Skilled grade, out of which three years service should be in the Highly Skilled Grade I. https://hcservices.ecourts.gov.in/hcservices/ (iii) These posts will be personal to the holders of the posts and will lapse with the retirement / wasting out of the individuals. (iv) There will be no Trade Test, instead, Assessment Reports on the individual workers shall be obtained in the proforma attached as Annexure II. 6.2 Subsequently, on the basis of the recommendation made by the Anomalies Committee, the Government communicated a letter, dated 15.10.1984, whereunder certain other jobs from Semi-skilled Grade were upgraded to Skilled Grade. This scheme also envisage inter alia:- “… (ii) Provision/ introduction of Highly Skilled Grade II (Rs.330-480) and Highly Skilled Grade I (Rs.380- 560) for common category jobs listed in Annexure I classified as Skilled depending on the functional requirement of highly skilled jobs, in the following manner as a benchmark percentage:- (a) Highly Skilled Grade I (Rs.380-560) 15% (b) Highly Skilled Grade II(Rs.330-480) 20% (c) Skilled grade (Rs.260-400) 65% This should be given to the trades enumerated in Annexure I with viable number of jobs and if there are non-viable trades, these should be grouped together for the purpose of giving the above benefit. In the trades where the above bench-mark percentages are introduced, the selection grade for the skilled grade, if provided, will stand simultaneously abolished as a one time measure.” (Emphasis added) 6.3 Subsequently, on the basis of the recommendation of the Vth Pay Commission, the Government of India issued a letter dated 205.2003 regarding restructuring of Cadre of Artisan staff in the Defence Establishments. The relevant paragraphs of such restructuring of Artisan Staff are extracted hereunder :- “2. The grade structure in the industrial as well as in the non-industrial trades, wherever already available and the pay scales of the Defence artisan staff shall stand modified w.e.f. 1.1.96 as under:- (i) Skilled : Rs.3050-4590 https://hcservices.ecourts.gov.in/hcservices/ (ii) Highly Skilled : Rs.4000-6000 (HS-I + HS-II) (iii)Master Craftsman : Rs.4500-7000 (a) Wherever the grade structure in the Industrial as well as in the Non-Industrial trades is already existing in the ratio of 65:20:15, in the erstwhile Skilled :HS-II ; HS-I, the merger of HS-II and HS-I shall be treated to have come into effect from 1-1-96 and the grade structure of Skilled and Highly Skilled categories shall be in the ratio of 65:35 (20+15). (b) The post of Master Craftsman shall not be part of the hierarchy and the placement in this grade will not be treated as promotion for Skilled Grade either under normal promotion rules or under ACP Scheme. (c) The selection from Highly Skilled grade to the grade of the 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 w.e.f. 1-1-96 and upto the date of the issue of these orders. (d) The placement of the individuals in the posts resulting from the restructuring and ratio revision, shall be made w.e.f. 1.1.96, in relaxation of the conditions, if any, i.e. trade test, etc., as one time measure. (e) The above provision may also be made applicable, as a special case, in relaxation of the existing rules/instructions to the employees who have either retired or died after 1.1.96. (i) From the date of issue of these orders, all the trades classified as Skilled (including left out trades) in the Industrial as well as in the non-Industrial Estts. shall now be modified in the following inter-grade ratio:- 1. Skilled (Rs.3050-4590) : 45% 2. Highly Skilled (Rs.4000-6000) : 55% 3. Master Craftsman(Rs.4500-7000) : 25% of the Highly Skilled Grade posts will be placed in the grade of the Master Craftsman. They will however, not be a part of the hierarchy. https://hcservices.ecourts.gov.in/hcservices/ (ii) The above-mentioned inter-grade ratio shall be worked out based on the sanctioned/authorized strength. (iii) Since the post of Master craftsman is not part of the hierarchy, the placement in this grade shall not be treated as promotion for Highly Skilled Grade either under normal promotion rules or under ACP Scheme. (iv) The benefit of the first and second ACP to the skilled workers will be as per the orders issued by the DOP & T under their O.M. dated 9.8.99 and subsequent clarifications issued on the subject. (v) and (vi) . . . (omitted as not necessary) (vii) The placement of the individuals in the posts resulting from the above restructuring and ratio revision shall be made from the date of issue of the orders, in relaxation of the conditions, if any, as one time measure. (viii) The procedure for selection to the grade of Master Craftsman shall be as laid down in para-2 & 3 of Ministry of Defence letter No.1(2)/80/D(Civ.I) dated 21st September, 1982, as amended with the exception that the number Master Craftsman in each trade shall be upto 25% of the total number of sanctioned posts in the Highly Skilled grade in each Organisation instead of 10% as was provided for in para-2(i) of the aforesaid Ministry of Defence letter. (ix) . . . (omitted as not necessary) “ 7. The contention of the present petitioners, which was not accepted by the Tribunal, is to the effect that as per such Scheme applicable in 1982 or 2003, 10% (subsequently enhanced to 25%) of the Highly Skilled Grade I in each Organisation can be selected to the grade of Master Craftsman. It is highlighted by the petitioners that as per para 2(i) of the communication dated 21.9.1982, number of posts of Master Craftsman in each trade shall be upto 10 per cent of the total number of sanctioned strength in Highly Skilled Grade I in each Organisation and since in the concerned Organisation there is only one post of Welder in the Highly Skilled Grade I, the question of selecting the applicant to the grade of Master Craftsman was not available. It has been further submitted that in the restructuring of Cadre, as per letter, ated 20.5.2003, this position has not been changed. Therefore, as per para (viii) of the communication, dated 20.5.2003, the procedure for selection in the grade of Master Craftsman is required to be as laid down in para 2 & 3 of the letter dated 21.9.1982. 8. This submission of the counsel for the petitioners is combated by the counsel for the contesting respondent by inviting our attention to the letter dated 15.10.1984, wherein, in para (ii), https://hcservices.ecourts.gov.in/hcservices/ while laying down the percentage available to the Highly Skilled Grade I, the Highly Skilled Grade II and Skilled Grade, it has been specifically stated “This should be given to the trades enumerated . . . with viable number of jobs and if there are non-viable trades, those should be grouped together for the purpose of giving the above benefit”. It has been further submitted that as per para (viii) of the communication dated 20.5.2003, the procedure for selection shall be as laid down in paras 2 and 3 of the communication dated 21.9.1982 as amended with the exception that the number of Master Craftsman in each trade shall be upto 25% of the total number of sanctioned strength in the Highly Skilled Grade in each organization instead of 10% as was provided earlier. Therefore, it was submitted by him that since the instructions in the communication dated 21.9.1982 has been amended as per the communication dated 15.10.1984, to that extent, the communication dated 20.5.2003 should be interpreted in the light of the communication dated 15.10.1984. 9. Having heard the counsels for both the parties and having given our anxious consideration to the questions raised, we are of the considered opinion that the contentions raised by the counsel for the petitioners cannot be accepted. 10. If such contentions were to be accepted, it may so happen that where the number of posts in a grade of Highly Skilled would be less than four, a person occupying such post of Highly Skilled Grade I in a particular grade would be deprived of being promoted as Master Craftsman, even though juniors to him in other trades, merely because of more numbers in such trade, would be promoted as Master Craftsman. Such a narrow interpretation as propounded by the petitioners would defeat the very object of the Recommendations of the Vth Pay Commission as well as the order which was issued in the communication dated 15.10.1984, as per the Recommendation of the Anomalies Committee. It is also to be noticed in this context that, even though in the Communication dated 21.9.1982 it was indicated that the number of posts of Master Craftsman in each trade shall be upto 10%, the Anomaly Committee reconsidered the matter and a subsequent order dated 15.10.1984 was issued, wherein it was specifically and categorically indicated that the percentage of the Highly Skilled Grade I, the Highly Skilled Grade II and Skilled Grade in the ratio of 15 : 20 : 65 is to be given to the trades with viable number of jobs and if there are non- viable trades, those should be grouped together for the purpose of giving the above benefit. In other words, it was clearly intended that in case the number of posts in a particular trade was above the viable number, such posts could be worked out and, on the other hand, if the number of posts in the particular trade was non-viable in the sense that only one or few were available, which could not be divided https://hcservices.ecourts.gov.in/hcservices/ by 10, all such non-viable trades were required to be grouped together so that necessary percentage could be worked out and the persons could be fitted against the particular grade such as the Highly Skilled Grade I, the Highly Skilled Grade II or Skilled Grade. 11. The above interpretation of ours, receives considerable support from the slight change in the language used in the communication dated 20.5.2003. Moreover, it is indicated therein that the placement in the Grade of Master Craftsman shall not be treated as promotion for the Highly Skilled Grade. 12. Learned counsel for the petitioners emphasised that it has been clearly indicated that upto 25% shall be treated as Master Craftsman, which would obviously mean 25% of the trade in question. In our considered opinion, all the instructions contained in the communication dated 20.5.2003 should be read along with the previous instructions and also should be considered harmoniously in order to prevent the possibility of any inequality to the employees, who would be deprived of promotion merely because number of posts in that trade in a particular Organisation is not a viable one or is lesser is number. 13. Learned counsel for the petitioners has also relied upon an earlier decision passed by the Tribunal in O.A.No.877 of 2004. Such decision has been distinguished under the impugned judgment by the Tribunal. That apart, we are unable to accept the basis of such earlier decision as, in our considered opinion, such a narrow and restricted interpretation is likely to affect many senior Highly Skilled artisans on the basis of mere fortuitous circumstance that number of employees of his grade and trade was less than four, making it impossible to work out 25% of such number. Law is well settled that a provision is required to be interpreted so as to avoid any anomalous situation so as to avoid the possibility of infringement of right to equality. 14. For the aforesaid reasons, we do not find any merit in this writ petition and it is accordingly dismissed. No costs. Consequently, the connected miscellaneous petitions are closed. Sd/- Asst. Registrar /true copy/ ssa/dpk Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To The Registrar, The Central Administrative Tribunal, High Court, Chennai 600 104. +1 cc to M/s. Paul and Paul, Advocate, SR.No.43041 +1 cc to Mr.R. Priyakumar, Advocate, SR.No.43467 ORDER IN WP.NO.6878/2008 VS(CO) SMK/17.9.08 https://hcservices.ecourts.gov.in/hcservices/