THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO W.P.No.3719 of 2011 ORDER: ( PER GM,J) This writ petition is filed assailing the legality and validity of the order dated 27.07.2010 in O.A.No.447 of 2008 on the file of the Central Administrative Tribunal, Hyderabad. Respondents 1 to 23 herein are the applicants before the Tribunal. They filed the above O.A. to direct the petitioners herein to grant second Assured Career Progression (ACP) benefit to them as they have completed more than 24 years of service. It is the case of the applicants before the Tribunal that they were appointed as Turner-I in the Naval Establishment during the years 1978 and 1979 and that applicants 1 and 3 to 23 are presently working as Master Craftsmen and the second applicant is working as HSK-I in the scale of Rs.5000- 8000/-. While so, the Government of India, Ministry of Defence, vide letter dated 08.04.1986 had issued instructions regarding the fitment of industrial workers in pay scales recommended by the third pay commission, according to which a three grade structure in 23 common category jobs which have been allowed bench mark percentage in H.S. II and I categories was introduced. Pursuant to the introduction of ACP for Central Government Civilian employees, the applicants were granted first ACP on 29.09.2000 with effect from 09.08.1999. Though they have passed the qualifying examination and have completed 24 years of service by 2002 and 2003, they have not been granted the second ACP benefit. It is stated that the Ministry of Defence had taken a stand that the placement of the applicants in the scale of HSK-II i.e., Rs.330-400 was not a promotion but only a fitment. But the same has been wrongly interpreted by the Admiral Superintendent, Naval Dockyard, Visakhapatnam as a promotion and the second ACP is being denied to them. Petitioners herein have filed their reply affidavit before the Tribunal denying the allegations of the applicants and contending that the applicants have been promoted to Highly Skilled Grade II during the year 1984-85 in the pay scale of Rs.330-480 (pre-revised) and upgraded to the pay scale of Master Craftsmen on selection basis in the pay scale of Rs.4500-7000 but not in the pay scale of Rs.5000- 8000 as mentioned in the O.A. Since they were promoted to Highly Skilled Grade II, they are not entitled for first ACP. However, they are entitled for second ACP on completion of 24 years and accordingly they were granted ACP in the pay scale of Rs.5000-8000. According to the petitioners the post of Master Craftsmen is not a promotional post. It is a post carrying upgraded pay scale of Rs.4500-7000. It is stated that the contention of the applicants that since they are drawing the pay scale of Rs.5000-8000, they are entitled to second ACP in the scale of Rs.5500-9000 is not tenable, since they were recruited in the erstwhile pay scale of Rs.260-400 and promoted to Highly Skilled Grade II in the pay scale of Rs.330-480. It was observed by the Tribunal that on 16.10.1981, the pay scales of Turner category were revised as follows: Turner A Rs.380-560 Rs.380-560 Turner B Rs.260-400 Rs.260-400 Turner C Rs.225-308 Rs.260-400 The above revision was done in pursuance of the 3rd Pay Commission recommendations. 5% of the posts were upgraded from Skilled/HSKII to HSKII/HSKI respectively in certain specified trades. On 15.10.1984 based on the recommendations of Anomalies Committee, the Ministry of Defence issued directions for fitment of industrial workers of Indian Navy into pay scales recommended by the 3rd Central Pay Commission for provisional introduction of HS Grade II (Rs.330-480) and HS Grade I (Rs.380-560) from common category jobs classified as Skilled. The job of Turner was also one of the 21 Trades in the list of common category skilled jobs. The following was the benchmark percentage: Category Scale Benchmark Percentage Highly Skilled Grade I Rs.330-480 15% Highly Skilled Grade II Rs.330-480 20% Skilled Rs.260-400 65% However, while implementing the scheme instead of using the term ‘fitment’, the term ‘promotion’ has been used. The applicants’ contention is that the original scheme of fitment introduced by Ministry of Defence on 16.10.1981 and the Scheme of 15.10.1984 both speak in terms of fitment of industrial worker and the nomenclature given by the petitioners while implementing the orders is illegal and beyond the scope of the scheme. They have also pointed out that the Government while issuing clarifications on the implementation of ACP Scheme have clarified that when two pay scales are merged as a result of rationalization, the mobility under the ACP shall be in the hierarchy after the merger of pay scales by ignoring the promotion. An employee who got the promotion from lower pay scale to higher pay scale before the merger of pay scales shall be entitled for upgradation under the ACP ignoring the said promotion, otherwise he would be placed in a disadvantageous position vis-à-vis the persons entering into the next merged grade. In the instant case, the placement of the applicants in the scale of Rs.330-480 had taken place in 1985, much before the introduction of ACP Scheme. It was done based on the recommendations of the Anomalies Committee. It is seen from letter dated 15.10.2004 of the Ministry of Defence that 20% of the jobs in the enumerated trades (including Turner) were earmarked for Highly Skilled Grade II in the scale of Rs.330-480. The applicants were given this scale by letter dated 20.02.1985. Though this letter uses the word promotion, in effect it was only fitment. Before the Tribunal, the applicants have relied upon a decision of the Hon’ble Supreme Court of India in KASHMIRI LAL AND OTHERS Vs. STATE BANK OF PATIALA[1] decided on 09.02.1988 in which it was held that fitment does not amount to promotion, and the same was reiterated in TARSEM LAL GAUTAM Vs STATE BANK OF PATIALA AND OTHERS[2] decided on 09.02.1988. In DIRECTOR GENERAL, RICE RESEARCH INSTITUTION, CUTTACK Vs K.M.DAS[3], the Hon’ble Supreme Court held that promotion is different from fitment by way of rationalization and initial adjustment. In P.S.RAJPUT AND TWO OTHERS Vs UNION OF INDIA AND OTHERS, a Full Bench judgment of Allahabad Tribunal, it was held that the upgradation of a cadre as a result restructuring or adjustment of existing staff will not be termed as promotion. Applying the above principles, the Tribunal has observed that the upgradation of the applicants to the scale of Rs.330-480 in view of the benchmark percentage fixed for different categories can only be termed as a ‘fitment’ and not as ‘promotion’. Consequent to the implementation of 4th and 5th Central Pay Commission Scales, the earlier scales had been revised as follows: 3rd CPC 4th CPC 5th CPC Rs.260-400 Rs.950-1400 Rs.3050-4590 Rs.330-480 Rs.1200-1800 Rs.4000-6000 Rs.380-560 Rs.1320-2040 Learned counsel for the petitioners contended that the order of the Tribunal is erroneous and, therefore, it has to be set aside. Learned counsel for the applicants – respondents herein on the other hand contended that the order of the Tribunal is correct and needs no interference by this Court. As can be seen from the 5th Central Pay Commission, the two scales of Rs.1200-1800 and Rs.1320-2040 were merged and a common scale of Rs.4000-6000 was evolved. Since the scale corresponding to the scale of Rs.330-480 in which the applicants were earlier placed worked out to Rs.4000-6000 after the 5th Central Pay Commission recommendations, they were given first ACP to Rs.5000- 8000. It is the case of the respondents herein that pursuant to the introduction of ACP for Central Government Civilian employees, they were granted first ACP on 29.09.2000 with effect from 09.08.1999. The earlier order placing them in the scale of Rs.4500-7000 has been modified to Rs.5000-8000 in Civil Establishment order/A/12/2004 dated 09.1.2004. Even this order shows that the applicants have been given the first upgradation to the scale of Rs.5000-8000 with effect from 09.08.1999. Therefore, the Tribunal held that they are entitled for second upgradation if they had not obtained any promotion after 1999 to the pay scale of Rs.5500-9000. Thus, on the scrutiny of the material available on record and on perusal of the order impugned passed by the Tribunal, it is evident that on 15.10.1984, based on the recommendations of Anomalies Committee, the Ministry of Defence issued directions for fitment of pay of industrial workers of Indian Navy into pay scales as recommended by the 3rd Central Pay Commission in respect of provisional introduction of H.S. Grade II (Rs.330-480) and H.S. Grade I (Rs.380- 560) from common category jobs, classified as Skilled. The job of Turner was also one of the 21 Trades in the list of common category skilled jobs. However, while implementing the scheme instead of using the term ‘fitment’, the term ‘promotion’ has been used. The applicants’ contention is that the original scheme of fitment introduced by Ministry of Defence on 16.10.1981 and the Scheme dated 15.10.1984 speak in terms of fitment of industrial worker and, therefore, the nomenclature given by the petitioners in implementing the orders, is illegal and beyond the scope of the scheme. Therefore, the Tribunal after taking into consideration, the order placing the applicants in the scale of Rs.4500-7000 which has been modified to Rs.5000-8000 in Civil Establishment order/A/12/2004 dated 09.1.2004 which also shows that the applicants have been given the first upgradation to the scale of Rs.5000-8000 with effect from 09.08.1999 and by following the principles laid down in the judgments referred to above, has rightly allowed the O.A. to the effect that the applicants are entitled for second upgradation, if they had not obtained any promotion after 1999, to the pay scale of Rs.5500-9000. Therefore, the writ petition is liable to be dismissed and accordingly, it is dismissed. No costs. GHULAM MOHAMMED,J N.R.L.NAGESWARA RAO,J Dt.21.02.2011 lvl THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO W.P.No.3719 of 2011 ( PER GM,J) Dt. 21.02.2011 [1] Civil Appeal No. 566/1983 [2] W.P.No.13369 of 1984 [3] AIR 1995 SC 122