IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 30TH JANUARY 2009 / 10TH MAGHA 1930 WP(C).No. 17340 of 2006(S) -------------------------- OA.556/2004 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER(S): --------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF DEFENCE, NEW DELHI. 2. THE CHIEF OF NAVAL STAFF, NAVY BHAVAN, NEW DELHI. 3. FLAG OFFICER COMMANDING IN-CHIEF, SOUTHERN NAVAL COMMAND, KOCHI-4. 4. THE GENERAL MANAGER, NAVAL ARMAMENT DEPOT (NAD), ALUVA. BY ADV. SRI.TPM.IBRAHIM KHAN,SENIOR PANEL COUNSEL RESPONDENT(S): --------------- 1. P.S. VIKRAMAN, S/O. SIVANANDAN, AGED 40 YEARS, T.NO.800, AM II, NAD, ALUVA, RESIDING AT KANNATTUKONAM HOUSE, THAIKKATTUKARA PO ALUVA. 2. A.K. MURALEEDHARAN, S/O. KRISHNAN NAIR, AGED 38 YEARS, T.NO.876, AM II, NAD, ALUVA, RESIDING ARAKKAL HOUSE, SOUTH VAZHAKULAM P.O., ALUVA. 3. THE CENTRAL ADMINISTRATIVE TRIBUNAL, REPRESENTED BY THE REGISTRAR, ERNAKULAM BENCH. ADV. SRI.K.SHRIHARI RAO FOR R1,R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/01/2009, ALONG WITH WPC NO. 17360 OF 2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 17340/06 APPENDIX PETITIONERS' EXTS. EXT.P1 - A TRUE PHOTO COPY OF OA 556/2004 FILED BY P.S.VIKRAMAN AND ANOTHER. EXT.P2 - A TRUE PHOTO COPY OF REPLY STATEMENT FILED BY PETITIONERS IN OA 556/2004. EXT.P3 - A TRUE PHOTO COPY OF THE HON'BLE CAT ERNAKULAM BENCH'S ORDER DATED 2ND MAY, 2006 IN OA 556/2004. EXT.P4 - A TRUE PHOTO COPY OF DRAFT RECRUITMENT RULES FOR THE POST OF FITTER AMMUNITION REPAIR (NOW RE-DESIGNATED AS AMMUNITION MECHANIC - II) EXT.P5 - A TRUE PHOTO COPY OF RECRUITMENT RULES FOR THE TRADESMAN (SKILLED) UNDER ARTISAN CADRE. /TRUE COPY/ K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ----------------------------------------- W.P.(C) NOS.17340 & 17360/2006 ----------------------------------------- Dated 30th January, 2009. JUDGMENT Balakrishnan Nair, J. W.P.(C) No.17360/2006: The respondents in O.A.No.777/2004 before the Central Administrative Tribunal, Ernakulam Bench have filed this Writ Petition. The respondents herein were the applicants in that O.A. The O.A was filed, challenging Annexures A1, A2 and A3 orders produced along with the Original Application and also seeking consequential benefits. 2. The brief facts of the case are the following: The Ministry of Defence, accepting the recommendations of the Fifth Central Pay Commission, issued Annexure-A7 order concerning re-structuring of the posts of Ammunition Mechanic and Fitter Ammunition Repair in the Navy, as per the Ministry of Defence letter dated 13.5.2002 circulated along with the said order. The post of Ammunition Mechanic was to be re-designated as Ammunition Mechanic - I and the post of Fitter Ammunition Repair was WPC 17340 & 17360/06 2 to be re-designated as Ammunition Mechanic - II. The re-designated posts were to be filled up as per the Recruitment Rules. There was also a proposal to amend the existing rules. 3. While so, the Ministry of Defence issued Annexure-R1 communication dated 20.5.2003, dealing with the re-structuring of the posts of Artisan Staff in the Defence Establishment. As per that communication, the Artisan Staff were classified into Skilled, Highly Skilled and Master Craftsman cadres. The above three posts were having the scale of pay of Rs.3050 - 4590, Rs. 4000 - 6000 and Rs.4500 - 7000 respectively. The ratio between the first two posts was revised as 45% and 55% and 25% High Skilled posts were placed in the grade of Master Craftsman. It was also ordered in Annexure-R1 that there shall be a one-time relaxation of the Trade Test for the purpose of placement in the aforementioned posts. The writ petitioners, thinking that the relaxation will apply to Ammunition Staff also, issued Annexure-A5 promotion order. The applicants before the C.A.T were beneficiaries of that order. While so, the Ministry of Defence issued Annexure-A2 communication, stating that Annexure-R1 will not apply to re-structuring of Ammunition Mechanic cadre, but will apply only to Artisan Staff. The said communication also stated that revised Recruitment Rules are going to be notified. Upon receipt of Annexure-A2 WPC 17340 & 17360/06 3 clarification, the competent authority issued Annexure-A3 order dated 6.7.2004, cancelling Annexure-A5. Thereafter, for considering persons eligible for promotion to the re-structured posts in the Ammunition Wing, Annexure-A1 memo was issued for Trade Test. In the above background, the O.A was filed, challenging Annexure-A2 clarification, Annexure-A3 order cancelling Annexure-A5 and also Annexure-A1 memo, concerning the steps to hold the Trade Test. 4. The writ petitioners resisted the O.A., contending that Annexure- R1 applied only to Artisan Staff and not Ammunition Staff. The latter is governed by Annexure-A7 order, which does not stipulate any relaxation of Trade Test and therefore, the impugned orders were issued. 5. The Tribunal, after hearing both sides, allowed the O.A by Ext.P3 order, which is impugned in this Writ Petition. The Tribunal found that the non-grant of relaxation to Ammunition Staff is a hostile discrimination. So, without insisting for Trade Test, promotion should be ordered, it was held. Based on that finding, the impugned orders were quashed. Aggrieved by the said order of the C.A.T., this Writ Petition is filed by the official respondents therein. 6. The learned counsel for the writ petitioners submitted that Annexure-A7 governs re-structuring of Ammunition Staff and Annexure-R1 WPC 17340 & 17360/06 4 governs re-structuring of Artisan Staff. Therefore, under the wrong impression that Annexure-R1 will apply to Ammunition Staff also, Annexure-A5 promotion order was issued. Upon receipt of Annexure-A2 clarification from the Ministry of Defence, Annexure-A5 was cancelled by Annexure-A3and notification for Trade Test was issued as per Annexure- A1. There is nothing illegal about it, it is submitted. The writ petitioners have acted strictly in accordance with the Recruitment Rules, which stipulate the clearing of a Trade Test for promotion. Annexure-A7 order providing for re-structuring, does not provide for any relaxation, it is submitted. 7. The learned counsel for the respondents submitted that as per Annexure-A5 promotions were implemented and entries were made in the service books of the respondents. Subsequently, the writ petitioners changed their stand without notice or hearing to them. Further, in an earlier O.A., which was pending before the Tribunal, the writ petitioners submitted that by the issuance of Annexure-A5, they have implemented the re- structuring and therefore, the O.A happened to be closed. Therefore, the writ petitioners cannot, now, be allowed to turn around and take a different stand. 8. We notice that appointments to various posts under the writ WPC 17340 & 17360/06 5 petitioners are governed by the Recruitment Rules. Unless the Recruitment Rules or some special orders issued by the Government, invoking its power to relax, provide for waiving the Trade Test, we find nothing wrong with the stand of the writ petitioners that promotions can be granted to the respondents only on their clearing the Trade Test. Admittedly, Annexure- A5 order was issued without the incumbents clearing the Trade Test, provided as per the Recruitment Rules. Annexure-A7, which deals with the re-structuring of Ammunition Staff, does not provide for any relaxation. Therefore, if the writ petitioners insist for Trade Test for placement in the re-structured posts contemplated under Annexure-A7, we find nothing wrong with that. Every authority must be conceded freedom to correct the mistake committed by it. The concept of lack of power for review etc., is applicable only to judicial and quasi-judicial determinations and not to administrative functions. Since the Artisan Staff and Ammunition Staff belong to separate streams, if the rule making authority or the competent authority thinks that there cannot be any relaxation for one stream, the same cannot be described as arbitrary or discriminatory. The incumbents can claim promotion only in accordance with the Recruitment Rules or as per the re-structuring orders. Only when there is a right, the same can be enforced through the application before the C.A.T. In the absence of any WPC 17340 & 17360/06 6 challenge to Annexure-A7, we find the decision of the C.A.T is unsupportable. In the result, the Writ Petition is allowed. The impugned order Ext.P3 is quashed and O.A.No.777/2004 is dismissed. W.P.(C) No.17340/2006: 9. In view of the judgment in W.P.(C) No.17360/2006, this Writ Petition is also allowed. The impugned order Ext.P3 is quashed and O.A.No.556/2004 is dismissed. K.BALAKRISHNAN NAIR, JUDGE. P.N.RAVINDRAN, JUDGE. nm/