@JUDGMENTTAG-ORDER
Elipe Dharma Rao, J.@mdashThese writ petitions are directed against the common order dated 21.9.2010 passed by the Central Administrative Tribunal in O.A. Nos. 218 to 223 of 2009wherein the Original Applications filed by the present petitioners challenging the fixation of seniority were dismissed.
2. The brief facts leading to filing of these writ petitions are as follows:
The Petitioners, by virtue of their apprenticeship and interview, were appointed in the semi-skilled postssuch as Fitter, Millwright, etc., in the third respondent factory in the year 1998 and subsequently,got promoted in the Skilled and High Skilled grade as Fitter, Millright, etc., in 2000 and 2003 respectively.It is the grievance of the Petitioners that though they are in the top of the seniority list, as some of the persons below them could join earlier due to receipt of Police Verification Report immediately, they are over looked. Pointing out this aspect, they had made representations, however, they were rejected.Subsequently, the third Respondent published the seniority list on the basis of the date of entry in to service, thus by violating the instructions is suedunder Office Memorandum No. 2001/3/90-Est.(D), dated04.11.1992 and depriving the meritorious employees of their status at due place. Thereafter, the Petitioners made several representations and against the order of rejection of those representations, they had filed Original Applications before the Tribunal for fixation of seniority.
3. The Tribunal, on consideration of the contentions raised, by relying on the decision of the Central Administrative Tribunal, Hyderabad Bench, in O.A. No. 763 of 1993, which was confirmed by the Division Bench of the Andhra Pradesh High Court in W.P. No. 14929 of 1997 dated 08.8.2001 and the decision of the Central Administrative Tribunal, Madras Bench, in O.A. No. 703 of 2008, dated 28.10.2009, dismissed the Original Applications. Aggrieved by the said order, the present writ petitions have been preferred.
4. The only contention raised by the learned counsel for the Petitioners is that while notifying the seniority list in the skilled grade, the seniority assigned in the lower grade, namely, the semi-skilled grade, with reference to their position based on the merit/select list should be taken into consideration.In other words, the seniority should not be counted from the date of promotion to the skilled grade.
5. Learned Addl. Solicitor General appearing for the Respondents has supported the order passed by the Tribunal, which is based on the earlier decisions of the Tribunal and the Andhra Pradesh High Court.Learned Addl. Solicitor General by relying on the O.F.Board Letter dated 24.12.2002 contended that the petitioners are not entitled for the relief sought for.
6. The Petitioners were appointed in the year1998 in a semi-skilled post like Millwright, fitter, etc. after undergoing apprenticeship in their respective trade. On completion of two years of training period in the aforesaid grade, they were appointed in the Skilled grade in 2000. The claim of the Petitioners is that seniority of a person regularly appointed to a post should be determined by the order of merit indicated at the time of initial appoint ment and not as per the date of confirmation in the subsequent post, namely, the skilled post. The stand of the Department is that seniority will be counted from the date of promotion to the skilled grade. On the afore said scenario, the question to be decided is whether the seniority would be counted from the date of promotion in the skilled grade or from the date of initial appointment as semi-skilled worker.
7. The question remains no res integra. The issue has been substantially decided by the Central Administrative Tribunal of Hyderabad Bench in O.A. No. 763 of 1993, dated 18.3.1997, wherein the Tribunal by observing that there was no statutory rule governing fixation of seniority of the employees who are to be promoted to the skilled grade from the semi-skilledgrade, allowed the Original Application. The said decision of the Tribunal was also confirmed by a Division Bench of the Andhra Pradesh High Court in the appeal preferred by the Department in W.P. No. 14929 of1997. It is not in dispute that the aforesaid decision has become final and the Department has implemented the decision of the Division Bench by issuing Office Memorandum dated 24.12.2002 to the effect that seniority would be counted from the date of promotion to skilled grade and not from the date of induction /entry / promotion in Semi-Skilled grade.
8. At this stage, the learned Counsel for the petitioners by relying upon a decision of the Supreme Court in
47. To sum up, we hold that:
(A) Once an incumbent is appointed to a post according to rule, hisseniority has to be counted from the date of his appointment and not according to the date of his confirmation.The corollary of the above ruleis that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.
(C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are frame din this regard they mustor dinarily be followed strictly....
9. We have no quarrel over the proposition that once a person is appointed to a post according to rule,his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The facts in the present are entirely different to the relied on case. In the present case,the Petitioners got appointed as apprentice in a specific trade and after undergoing training as semi-skilled, they had got promoted to the post of skilledgrade. The Andhra Pradesh High Court in a similar circumstances pointed that there was no statutory rule governing fixation of seniority of the employees who are to be promoted to the skilled grade from the semi-skilled grade, where a senior could not report to the promoted post for some or the other reason before his junior reported for duty in the promotion grade. The Proceedings dated 24.12.2002 issued following the aforesaid decision, has specifically made it clear that" Semi-skilled posts are training posts for Skilled posts" and "Seniority will be counted from the date of promotion to Skilled grade and not from the date of induction/entry/promotion in Semi-skilled grade".
10. To strengthen our aforesaid conclusion, the Department of Personnel and Training, Government of India, had issued Official Memorandum No. 35034/1/2000-Estt.(D), dated 11/14th September,2001, which reads as follows:
2. Department of Per. and Trg. have offered their comments as under:
If in respect of skilled trade,recruitment is made against postssanctioned in the skilled grade(Rs. 3,050-4,590) but the incumbents are allowed semi-skilled grade for first two years for direct recruit with III of NCUT Certificate or for 3 years for persons who are promoted from a lower grade after passing the prescribed trade test before they are placed in the skilled grade,then the semi-skilled grade in such cases may need to be viewed only as a train eescale and such placement in the skilledgrade after putting in the specific length of service in the semi-skilled grades may not be treated as promotion /up gradation and may not be offset against entitlements under ACP Scheme. However,in respect of trade where posts may be sanctioned only in semi-skilled grades,if any, then regular incumbents of such posts in semi-skilled grade on promotion to skilled grade, where such avenues exist will be treated as being appointed on promotion and will not be covered by the above clarification.
11. A reading of the aforesaid Official Memor and umissued with the concurrence of the Defence (Finance/AG)Department, makes it abundantly clear that the persons promoted from a lower grade after passing the prescribed trade test before they are placed in the skilled grade, then the period undergone by them in the semi-skilled grade, should be viewed only as a traine escale and the length of service put in the semi-skilled grades may not be treated as promotion / upgradation.When there is a specific Official Memorandum issued in concurrence with the Defence Department and it was madeclear in the earlier Proceedings dated 24.12.2002, the petitioners cannot contend that the decision of the Supreme Court in
12. For the aforesaid reasons, we do not find any illegality or infirmity in the order passed by the Tribunal and it is accordingly, confirmed.Consequently, the present Writ Petitions are dismissed.
13. There will be no order as to costs.
