Moving From Chowkidar To MPA/FGM Passing Trade Test Is Promotion, Not Entitled For Second ACP: Calcutta HC

Background Facts

The petitioners were appointed as Chowkidar/General Mazdoor in the Military Engineer Services. Later, they were promoted to the post of Motor Pump Attendant (MPA) after clearing the Trade Test. This post was later re-designated as Fitter General Mechanic. The Second Assured Career Progression Scheme was introduced. However, the Department denied benefit of scheme to the petitioners on the ground that they had already received a promotion.

Aggrieved, the petitioners approached the Tribunal. However, the Tribunal rejected their claim. Aggrieved by the Tribunal's order, the petitioners filed the writ petition before the Calcutta High Court.

It was argued by the petitioners that their movement from the post of Chowkidar/General Mazdoor to Motor Pump Attendant/Fitter General Mechanic was not a promotion. It was a reclassification or direct recruitment because they had cleared a Trade Test for the post.

The petitioners contended that other persons who were promoted as MPA were later reclassified as MPA. Reliance was placed on the document issued by the SE CWE (S) Barrackpore, which stated that Mazdoors reclassified/appointed as skilled tradesmen should be treated as “recruited” and not “promoted.” The petitioners further submitted that similarly situated employees working in Bhatinda, Delhi Cantonment and Barrackpore were granted the benefit of Second ACP because their appointment was considered as reclassification.

The petitioners also relied on Standing Order, 1971 issued by Army Headquarters. It was contended that the pay scale of the MPA falls within the ambit of semi-skilled category, therefore, they must be treated as direct recruits.

On the other hand, it was argued by the Department that the petitioners were promoted as MPA. It was a direct line of promotion as per the SRO 215 dated 24.07.1971. The Department contended that SRO 215 prescribes only three modes of induction to the post of MPA i.e. promotion from the feeder post of Mazdoor/Chowkidar, transfer, and by direct recruitment.

Further, the Department relied on its counter affidavit which stated that the benefits granted to employees at Bhatinda, Delhi Cantonment and Barrackpore were subsequently cancelled.

Findings of the Court

It was observed by the court that ACP Scheme was introduced by the Government to provide financial upgradations to stagnating employees after completing stipulated years of service. If during those stipulated years of service, the stagnating employee has not received any promotion, he gets financial upgradation under the ACP Scheme but if he had received a promotional benefit, then he is not entitled for the financial upgradation.

On the contention of petitioners that similar benefits were provided to similarly situated employees, it was observed that the benefits granted to employees at Bhatinda, Delhi Cantonment and Barrackpore were cancelled later. The GE (Delhi Cantonment) had informed that promotion granted was amended as 'Reclassified' instead of 'promoted', but later the reclassification was cancelled and promotion was restored. The CWE(S) Barrackpore had clarified that second ACP granted to two persons due to wrong entry in the service book as 'reclassified' had been withheld and recovery of excess amount paid had been ordered.

It was further observed that no advertisement was issued inviting applications from the open market. Further the petitioners did not participate in any selection process and got selected as direct recruitees.

It was held that the petitioner's contention that the benefits of ACP scheme should be given by treating the Post as “reclassified” is unacceptable. The method prescribed in S.R.O. 215 (Statutory Recruitment Rule) provide only three modes of induction i.e. by promotion, transfer and direct recruitment. Therefore, petitioners cannot be inducted in the post by way of reclassification, it was possible only by way of promotion.

The judgment in Dhananjaya Reddy vs. State of Karnataka was relied upon which held that if law prescribes a thing to be done in a particular manner, then things must be done in the same manner.

It was further held that if MPAs were treated as reclassified, then it is contrary to the statutory provisions of S.R.O. 215. Therefore, any benefit illegally acquired by any similarly situated persons contrary to S.R.O. 215 will not create any enforceable right in favour of the petitioners.

It was held by the Division Bench that the petitioners were not entitled to get the benefit of 2nd ACP as they were 'promoted' on the basis of MPA/FGM. With the aforesaid observations, the Tribunal's order was upheld by the Division Bench.

Consequently, the writ petitions filed by the petitioners were dismissed by the Division Bench.

Case Name : Kalipada Majumdar & Ors. Vs. Union of India & Ors.

Case No. : WP.CT 22 of 2015

Counsel for the Petitioners : Subir Sanyal, Sr. Adv., Tulsidas Ray, Tapan Roy, Sourojit Mukherjee

Counsel for the Respondents : Pramod Kr. Drolia,Rajesh Kr. Shah