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Navy Group 'C' and 'D' Industrial Posts (Tradesmen and Labourers) Recruitment Rules, 2000

 


 

IN THE HIGH COURT OF KERALA AT ERNAKULAM
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O.P.(CAT)NOS.37, 47, 53 AND 56 OF 2014 
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Dated this the 8th day of July, 2014 

OA. NO.1179/2012 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.


PETITIONER(S): 
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1. SOUTHERN NAVAL COMMAND CIVILIAN EMPLOYEES ASSOCIATION (AIDEF), VYAPARA BHAVAN, PERUMANOOR P.O., THEVARA, KOCHI- 682 015, 
REPRESENTED BY ITS GENERAL SECRETARY, K. BALAKRISHNAN, S/O.LATE M.GOVINDAN NAIR, AGED 59 YEARS, UDC, NAVAL ARMAMENT DEPOT, N.A.D. P.O., ALUVA, ERNAKULAM - 683 563, RESIDING AT KODENCHERY HOUSE, NOCHIMA, N.A.D. P.O,EDATHALA, ALUVA, ERNAKULAM. 
2. K.M. KRISHNAKUMAR, S/O.K.I. MADHAVAN, AGED 35 YEARS, MULTI TASKING STAFF (MINISTERIAL), INS VENDURUTHY, BOATSWAINSTORE, NAVAL BASE, KOCHI - 682 004, RESIDING AT KELOTHTHUNDY HOUSE, VYTTILA P.O., KOCHI - 19. 
3. BIJU. T.M., S/O.MOHANAN. T.K.,AGED 38 YEARS, MULTI TASKING STAFF (MINISTERIAL), INS DRONACHARYA, FORT KOCHI - 682 001, RESIDING AT THANDASSERY HOUSE, CHURCH ROAD, NJARAKKAL P.O.,PIN: 682 505. 
BY ADVS.SRI.M.R.HARIRAJ, SRI.P.A.KUMARAN, VINITHA. B., SRI.NIRMAL V.NAIR, SRI.K.RAJAGOPAL, SMT.M.A.JINSA MOL. 
RESPONDENT(S): 
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1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF DEFENSE, NEW DELHI. 
2. FLAG OFFICER, COMMANDING IN CHIEF, SOUTHERN NAVAL COMMAND, NAVAL BASE, KOCHI - 682 004. 
3. CHIEF STAFF OFFICER, SOUTHERN NAVAL COMMAND, NAVAL BASE, KOCHI - 682 004. 
R1 TO R3 BY ADV. SRI.P.PARAMESWARAN NAIR, ASG. OF INDIA. ADDL. R4 TO R14 BY SRI.P. RAVINDRAN, SENIOR ADVOCATE. ADV. SRI.SREEDHAR RAVINDRAN.
J U D G M E N T 

A.K.JAYASANKARAN NAMBIAR, J. 

As the issue involved in all these original petitions is the same, they are taken up together for disposal by this common judgment. For the sake of convenience, O.P.(CAT) No.37 of 2014 is taken as the lead case and the reference to the Exhibits and Annexures is as marked in the said case. The brief facts necessary for a disposal of these petitions are as follows: 

The petitioners in these original petitions, who were the applicants before the Central Administrative Tribunal (hereinafter referred to as the 'CAT'), comprise of a registered trade union of employees in the Navy and persons claiming to be Group D employees of the Navy. They approached the CAT, aggrieved by the attempt of the respondents to fill up vacancies that arose prior to 09.06.2012 in the cadre of unskilled labourer (since re-designated as Multi-Tasking Staff (Industrial)), through direct recruitment. It is their contention that the vacancies that arose prior to 09.06.2012, ought to have been filled up in the manner envisaged by the Recruitment Rules of 2000 (produced as Annexure A2) and not as per the Recruitment Rules of 2012 (produced as Annexure A4) that were promulgated with effect from 09.06.2012. As per Annexure A2 Rules, vacancies to the post of Unskilled Labourer were to be filled by absorption from among candidates in the feeder category and failing that by resort to direct recruitment. By Annexure A4 Rules, the mode of appointment to vacancies in the same post (since re-designated as Multi-Tasking Staff (Industrial)) was altered and confined to Direct Recruitment alone. It was in this factual backdrop that they challenged Annexure A3 notification that proposed to fill up 167 vacancies of Unskilled Labourers through direct recruitment, by contending that resort to direct recruitment could be had only after exhausting the method of recruitment by absorption for which they stood qualified as on the date of arising of the vacancies. 

2. The claim of the petitioners was resisted by the respondents who, through statements filed before the CAT, took the stand that vacancies to the post of Unskilled Labourer in the Navy were normally filled by resort to Annexure A2 Rules, through absorption of qualified hands from among Group D employees. Although vacancies subsisted in the post even after resorting to absorption of Group D employees, the establishment was not resorting to direct recruitment as permitted in Annexure A2 Rules and this had led to an increase in the number of vacancies to the post of Unskilled Labourer to 235 vacancies. Faced with this situation, the establishment had called for applications from Group D employees vide Annexure R1 memorandum dated 16.02.2012. In all, 59 applications were received from Group D employees and from among them, 56 were found qualified as per Annexure A2 Rules and were accordingly absorbed as Unskilled Labourers. As the number of vacancies to the post was still huge and it was apparent that there were no qualified hands left for absorption, resort was taken to the mode of direct recruitment to fill up the remaining vacancies. It was also pointed out that, with the promulgation of Annexure A4 Rules with effect from 09.06.2012, the petitioners had ceased to be eligible for absorption to the post of Unskilled Labourer as the said post had been re-designated as Multi-Tasking Staff (Industrial) and the petitioners too had been re- designated as Multi-Tasking Staff (Ministerial) or Multi-Tasking Staff (Non-Industrial), as the case may be, with equal status as Multi-Tasking Staff (Industrial).

3. It will be noticed in this case that the stand taken by the Naval establishment is that they had resorted to direct recruitment, as envisaged in Annexure A2 Rules, only when it was found that there were no qualified hands remaining for filling up the vacancies through the mode of absorption. This stand is taken based on the interpretation given to Annexure A2 Rules, by the establishment, as per which only those Group D employees having 5 years regular service in the pre-revised pay scale of Rs.2550-55-2660-60-3200 would qualify for absorption as Unskilled Labourer. As against this, the interpretation sought to be placed on the Rule by the petitioners is that the requirement of 5 years regular service in the specified pay scale is one that is to be met only by those Group D employees who do not possess the qualification and experience laid down in Annexure A2 Rules for direct recruitment. It is their contention that, insofar as they are Group D employees who possess the qualification of 8th standard pass laid down for direct recruitment, they could aspire for absorption notwithstanding that they did not have 5 years regular service in the specified pay scale. Alternatively, they would also contend that Group D employees of the Navy are not required to have 5 years regular service in the specified pay scale at all as the said condition is applicable only to persons serving in analogous, equivalent or higher grades in the lower formation of the defence services. To appreciate the rival contentions, it would be apposite to extract the relevant portion of Annexure A2 Rules. S.R.O.150:-In exercise of the powers conferred by the proviso to article 309 of the Constitution, and in supersession of the Navy Group 'C' and 'D' Industrial Posts (Tradesmen and Labourers) Recruitment Rules, 1979, insofar as they relate to the posts of Tradesman Highly Skilled Grade-I, II, Tradesman Skilled, Semi-Skilled Worker - Unskilled Labourer, the President hereby makes the following rules regulating the method of recruitment to certain Group 'C' and 'D' posts in the Navy, Ministry of Defence, namely:- 

1. Short title and commencement:- 

(1) These rules may be called the Navy Group 'C' & 'D' Industrial Posts (Tradesmen and Labourers) Recruitment Rules, 2000. 
(2) They shall come into force on the date of their publication in the Official Gazette. 

2. Application:- 

These rules shall apply to the posts specified in column 1 of the Schedule annexed hereto. 

3. Number classification and scales of pay:- 

The number of the said posts, their classification and the scales of pay attached thereto shall be as specified in columns 2 to 5 of the said Schedule.  

4. Method of recruitment, age limit, other qualification, etc.:- 

The method of recruitment, age limit, qualifications and other matters connected therewith shall be as specified in columns 6 to 14 of the aforesaid Schedule.  

5. Disqualification:- 

No person- 
(a) Who has entered into or contracted a marriage with a persons having a spouse living; or 
(b) Who, having a spouse living, has entered into or contracted a marriage with any person, shall be eligible for appointment to any of the said posts; 
Provided that the Central Government may, if satisfied that such marriage is permissible under the personal law applicable to such person and the other party to the marriage and that there are other grounds for so doing, exempt any person from the operation of this Rule.  

6. Power to relax:- 

Where the Central Government is of the opinion that it is necessary or expedient so to do, it may, by order, and for reasons to be recorded in writing relax any of the provisions of these rules with respect to any class or category of persons.  

7. Saving:- 

Nothing in these rules shall affect reservations, relaxation of age-limit and other concessions required to be provided for the Scheduled Castes, the Scheduled Tribes, Other Backward Classes and other special categories of persons in accordance with the orders issued by the Central Government from time to time in this regard. 
SCHEDULE 
1 Name of the post Unskilled Labourer 
2 Number of Posts 4196* (2000) *subject to variation dependent on work load 
3 Classification General Central Service Group 'D' Now Gazetted Non-Ministerial Industrial 
4 Scale of Pay Rs.2550-55-2660-60-3200 
5 Whether selection-cum- Selection-cum-seniority seniority or selection by merit 
6 Age limit for direct recruits Between 18 to 27 years (Relaxable for Government Servants upto 40 years in accordance with instructions or orders issued by Central Government from time to time in this regard.) 
Note: 
1.The crucial date for determining the age limit shall be the closing date for receipt of applications from candidate except for the closing date prescribed for those in Assam, Meghalaya, Arunachal Pradesh, Mizoram, Manipur, Nagaland, Tripura, Sikkim, Ladak Division of Jammu and Kashmir State Lahaul and Spiti District and Pangi Sub Division of the Chamba District of Himachal Pradesh, Andaman and Nicobar Island or Lakshadeep). 
2. In the case of recruitment made through the Employment Exchange the crucial date for determining the age limit shall be the last date upto which the Employment Exchange are asked to submit the names. 
7 Whether benefit of added Not applicable years of service admissible under rule 30 of the Central Civil Services (Pension) Rule 1972 
8 Educational and other Essential: qualifications required for1. 8th Standard passed from a recognized direct recruits Board/Institution 
9 Whether age and educational Not applicable qualifications prescribed for direct recruits will apply in the case of promotions 
10 Period of Probation if any 01(one) years in case of direct recruits. No probation period of promotees/absorptionists. 
11 Method of recruitment By absorption failing which by direct whether by direct recruitment recruitment. or by absorption or by promotion and percentage of the posts to be filled by various methods. 
12 In case of recruitment by Absorption: Group D Employees of the Navy or promotion or absorption, persons serving in analogous, equivalent or grades from which promotion higher grades in the lower formations of the absorption to be made Defence Services with atleast 5(five) years regular service in the pay scale of Rs.2550-55- 2660-60-3200 Or Persons possessing the qualification and experience as laid down in column 8 for direct recruitment:-(the period of deputation including the period of deputation in another ex-cadre post held immediately proceeding this appointment in the same or some other organization/department of the Central Government shall ordinarily not exceed 03 (three) years). 
13 If a Departmental Promotion Group 'D' Departmental Promotion Committee Committee exists what is its consisting of:- composition Officer of the rank of Commander or Civilian Officer of equivalent rank or above of respective Command Headquarters - Chairman Two Officers of the rank of lieutenant Commander/Lieutenant of Civilian Officer of equivalent rank or above of respective Command Head quarters (one departmental and one from another Central Government Department preferably belonging to Scheduled Castes/Scheduled Tribes category - Members. 
14 Circumstances under which Not applicable Union Public Service Commission is to be consulted in making recruitment
4. The contention of the petitioners did not find favour with the Tribunal, which by its order dated 19.02.2014, dismissed the original applications preferred by the petitioners. Dealing with the specific contention of the petitioners with regard to the interpretation to be placed on Annexure A2 Rules, the Tribunal observed as follows: 
"7. It may at once be noticed that clause 12 in the Schedule of 2000 Rules stipulates that recruitment of unskilled labourers shall be "by absorption failing which by direct recruitment".  
The above clause is extracted hereunder for the sake of convenience:-  
12. Absorption:- Group-D employees of the Navy or persons serving in analogous, equivalent or higher grades in the lower formation of the defence services with at least 5 (five) years regular service in the pay scale of Rs.2550-55-2660-60-3200/-, Or Persons possessing the qualification and experience as laid down in column 8 for direct recruitment, (the period of deputation including the period of deputation in another ex-cadre post held immediately preceding this appointment in the same or some other organization/department of the Central Government shall ordinarily not exceed 03 (three) years)".  
8. A perusal of the above clause will unambiguously show that any Group-D employee of the Navy or any person serving in the Navy or in any analogous, equivalent or higher grades in the lower formation of the defence services with atleast 5 years regular service in the pay scale of Rs.2550-3200/- will be eligible for absorption as un-skilled labourer. According to the applicants the latter part of the clause extracted above, will unambigously show that any Group D employee possessing the qualification and experience as laid down in column 8 will be entitled to be absorbed in service as skilled labourer. It is contended by them that since they possess the minimum educational qualification of pass in 8th standard as provided in column 8 of the Rules, they fit the bill for absorption. In other words the contention is that the prescription of atleast 5 years regular service as Group-D employee is irrelevant or inapplicable in their case. In our view the above contention is wholly misconceived, if not presposterous.  
9. As has been noticed already, the eligibility criteria for absorption have been clearly spelt out in the former part of the clause under column 12. The latter part refers to the criteria for direct recruitment only. In our view, the above two clauses have to be read disjunctively since they are intended to meet two different and distinct contingencies. This interpretation is the most logical and sensible one as otherwise the criteria stipulated for absorption will become totally redundant or meaningless. If the interpretation sought to be given by the applicants is accepted, any Group-D employee who enters the service will automatically become eligible for absorption irrespective of the number of years of regular service. The very concept of absorption which envisages gaining some experience by the employee in the field of his work after his initial recruitment, will be rendered nugatory or absurd in such an eventuality. This could never have been the intention of the framers of 2000 Rules. Still furtehr, the above interpretatio given by the applicants will result in a paradoxical situation whereby two sets of eligibility criteria will be created for absorption; of employees with minimum of 5 years regular service and for those with no such minimum regular service at all. Such a prepostreous situation would not have been in contemplation of the rule makers." 
5. The Tribunal also found that insofar as the petitioners had not responded to Annexure R1 memorandum dated 16.02.2012, it could not be said that they were not provided with an opportunity to apply for absorption to the post. Having decided not to apply for absorption, they could not be heard to voice any complaint with regard to non-consideration for absorption. The relevant portion of the Tribunal's order reads as follows: 
"11. It is contended by the respondents that none of the applicants in these three Original Applications had got the requisite minimum five years of regular service as Group-D as on January 1, 2012 in order to make them eligible for absorption. A perusal of Annexure A1 list of the members of applicant No.1-Association will show that none of them had got five years regular service to their credit as on January 1, 2012. It is true that serial No.8 in Annexure A1 list had got the requisite qualification. However, it is pointed out by the respondents that the said employee had not applied in response to Annexure R1 notice. Therefore, it is obvious that all the applicants in these cases were very well aware when Annexure R1 notice was issued that they were ineligible to be considered for absorption since they did not have the requisite minimum regular service of 5 years as Group-D. For the aforesaid reasons the contention raised by the applicants that the respondents had not afforded them any opportunity to get themselves absorbed as un-skilled labourers is wholly untenable.  
12. Still futher, if in fact the applicants were of the view that minimum five years regular service was not required for absorption as is now being contended by them, they would have, under normal circumstances, made a clamour for such absorption much earlier. There is not even a whisper in their pleadings that such a request was ever made by them at any point of time. Significantly, Annexure R1 notice was never challenged by the applicants. Similarly they do not have a case that any Group-D employee with less than five years' service was ever absorbed as un-skilled labourer in the past. This aspect will also show that the applicants were fully conscious of the fact that regular service of atleast five years as Group-D was sine qua non for absorption as unskilled labourer".
It is these findings of the Tribunal that are impugned before us in the original petitions.

6. We have heard learned Senior Counsel Sri.Jaju Babu, Adv. Sri.M.R.Hariraj and Adv.Sri.T.C.Govindaswamy on behalf of the petitioners, Senior Counsel Sri.P.Ravindran on behalf of the contesting respondents and the Assistant Solicitor General of India on behalf of the Union of India representing the Naval Establishment. The submissions advanced on behalf of the petitioners can be summarised as follows: 
  • The vacancies to the post of Unskilled Labourers that were notified by the Naval Establishment vide Annexure 3 notification, were those that arose prior to the promulgation of Annexure A4 Rules and hence were required to be filled in accordance with Annexure A2 Rules.
  • Going by Annexure A2 Rules, resort to direct recruitment for the purposes of filling up vacancies could be had only after exhaustion of the absorption route for filling up the vacancies. The petitioners were persons who qualified for appointment through absorption but were not considered for the same.
  • The Naval establishment had all along interpreted Annexure A2 Rules as treating only those Group D employees of the Navy, as had completed 5 years regular service in the specified pay scale, as qualified under the Rules for absorption as Unskilled Labourers. This interpretation of the Rules was wrong and could not be held against the rightful claim of the petitioners to be considered for absorption.
  • It was on account of the erroneous interpretation of Annexure A2 Rule by the Naval establishment that the invitation vide Annexure R1 memorandum was extended only to those Group D employees who had completed 5 years regular service in the specified pay scale. The petitioners had reason to believe that their category was not called and they were under the bona fide belief that they would be called soon. It is also relevant to note that Annexure R1 memorandum did not specify the number of vacancies that was proposed to be filled. The petitioners did not respond to this memorandum only because their category was not referred to in the said memorandum. No waiver could be inferred, or estoppel urged, based on their inaction in responding to the said memorandum.
  • The petitioners did not challenge Annexure R1 memorandum since they were under the bona fide belief that they would also be considered for absorption in due course and further, they were not claiming any seniority over the persons who were called through Annexure R1 memorandum.
  • Their challenge to Annexure A3 notification was pursuant to their becoming aware of the decision of the Naval establishment to resort to direct recruitment for filling up the vacancies and it was at that stage that the cause of action, for a challenge against the said notification, accrued to them.
  • While it is true that some of the petitioners had, during the pendency of the proceedings before the Tribunal, unsuccessfully subjected themselves to the selection procedure contemplated in Annexure A3 notification, this by itself would not deprive them of their right to claim consideration to the vacancies that had to be filled in through absorption if they were found qualified for the same as per Annexure A2 Rules.
7. Per Contra, the contentions of the respondents, briefly put are as follows: 
  • Annexure A3 notification calling for applications to the post of Unskilled Labourers for filling up through direct recruitment was issued only after exhausting the method of recruitment through absorption envisaged in Annexure A2 Rules.
  • The interpretation given to Annexure A2 Rules by the petitioners is patently erroneous and the Naval establishment has been consistently taken the stand that only those Group D employees who have 5 years regular service in the prescribed pay scale are entitled to be considered for absorption as Unskilled Labourers. Past recruitments have also been completed on this basis.
  • The petitioners knew all along that this was the correct interpretation to be placed on Annexure A2 Rules and it was in these circumstances that they chose not to respond to Annexure R1 memorandum issued by the Naval establishment. They could not be permitted to turn around and challenge their alleged exclusion at this stage. The fact that the Union is one of the petitioners is also pointed out. The Union was well aware of the manner in which the Rule was interpreted for the purposes of past recruitments to the said post.
  • The latter part of the rule actually does not contemplate absorption as such. What it contemplates is deputation. The deputation cannot go beyond the period of 3 years as contemplated therein. This has been the understanding of the Naval establishment as well as the employees.
  • Some of the members of the petitioner Union had responded to Annexure A3 notification and applied for the post of Unskilled Labourer through the Direct Recruitment route and subjected themselves to the selection procedure under the said notification. Having failed in their attempt at recruitment, they could not now turn around and contend that they were entitled to be considered under the absorption route of recruitment.
  • At any rate, the petitioners having chosen not to challenge Annexure R1 memorandum and the recruitment pursuant thereto, could not now challenge the present recruitment process. By the said date, the new recruitment Rules - Annexure A4 - has already come into force and under the said Rules, the petitioners were not qualified to seek promotion to the post notified.
  • Pursuant to an Office Memorandum of the Government of India dated 30.04.2010, all Group D posts have been upgraded as Group C posts and subsequently re-designated as Multi-Tasking Staff (Ministerial), Multi-Tasking Staff (Non-Industrial) and Multi-Tasking Staff (Industrial) as the case may be. In such circumstances, the petitioners could not, at any rate, claim the benefit of absorption in accordance with Annexure A2 Rules since they had ceased to be part of the feeder category of Group D employees for the purposes of those Rules.
8. The following issues arise for consideration in these original petitions: 
  • What is the correct interpretation to be placed on Annexure A2 Recruitment Rules and what are the categories of persons who comprise the feeder category to the post of Unskilled Labourers under the said Rules? 
  • Whether the petitioners are persons who ought to have been considered for the post, especially to the vacancies that arose in the said post prior to 09.06.2012? 
  • What, if any, was the effect of their not challenging Annexure R1 memorandum vis-a-vis the rights of the petitioners to claim consideration of their candidature for the post of Unskilled Labourer? 
  • What was the effect of re-designation of Group D posts as Group C on the claims of the petitioners for absorption in accordance with Annexure A2 Rules? 
  • Would the conduct of some among the petitioners, of having unsuccessfully participated in the selection procedure pursuant to Ext. P1 notification, affect the petitioners' claim for absorption in terms of Annexure A2 Rules? 
Issues (1) and (2): We shall first consider the interpretation to be placed on the Rule itself. It is clear from a reading of the Rule that the categories of persons from among whom absorption to the post of unskilled labourer could be considered are as follows: 

Group D Employees of the Navy or persons serving in analogous, equivalent or higher grades in the lower formations of the Defence Services with at least 5 (five) years regular service in the pay scale of Rs. 2550-55-2660-60-3200 OR Persons possessing the qualification and experience as laid down in Column 8 for direct recruitment. (The period of deputation including the period of deputation in another ex-cadre post held immediately preceding this appointment in the same or some other organization/department of the Central Government shall ordinarily not exceed 03 (three) years) 

9. The petitioners would contend that the Rule takes in three categories of persons viz. 
  • Group D employees of the Navy with at least five years regular service in the pay scale of Rs.2550-55-2660-60- 3200;
  • Persons serving in analogous, equivalent or higher grades in the lower formations of the Defence Services with at least five years regular service in the pay scale of Rs.2550-55-2660-60-3200; and
  • Persons possessing the qualification and experience as laid down in Column 8 for direct recruitment viz. A pass in the 8th standard from a recognised Board/Institution. 
10. It is the further contention of the petitioners that there were two avenues of promotion, by absorption, available to Group D employees of the Navy depending upon whether or not they possessed the qualification of a pass in 8th standard from a recognised Board/Institution - the qualification laid down for direct recruitment. The purport of the Rule, according to them, was to offer a chance of absorption to even those Group D employees who did not have five years regular service in the prescribed pay scale, but who nevertheless possessed the qualification that had to be possessed by a person seeking absorption through direct recruitment to the post in question. An alternate submission was put forth by Adv. Sri. Govindaswamy, on behalf of some of the petitioners, that the Rule could also be interpreted as limiting the qualification, of possession of five years regular service in the prescribed pay scale, to only the second category of persons viz. "Persons serving in analogous, equivalent or higher grades in the lower formations of the Defence Services" and that Group D employees of the Navy, on account of their mere classification as such, could be considered for absorption without any further requirement as regards experience or qualification. 

11. Per Contra, the respondents would argue that the Rule had been consistently interpreted as allowing a consideration of only those Group D employees of the Navy who had at least five years regular service in the pay scale of Rs.2550-55-2660-60-3200. It is pointed out that the third category viz. "Persons possessing the qualification and experience as laid down in Column 8 for direct recruitment viz. A pass in the 8th standard from a recognised Board/Institution" would not take within its fold Group D employees of the Navy, even if they possessed the qualifications applicable for direct recruitment, because they were treated as a separate category for the purposes of the Rule. It is also pointed out that the qualification of 8th standard pass is a requirement across the board and in relation to all similar posts in Annexure A2 Rules and hence there cannot be a classification of Group D employees on the basis of the said qualification. To a pointed question as to who would be covered under the third category, it is contended that the said category would comprise only of persons appointed by deputation. Reliance is placed on the bracketed portion of the Rules to contend that the mention therein, of the maximum permissible period of deputation, was sufficient indication that the third category applied to those seeking appointment by way of deputation. 

12. On a consideration of the rival submissions, we are of the view that there is considerable merit in the first view advanced on behalf of the petitioners namely that the Rule takes in three categories of persons and that there were two avenues of promotion, by absorption, available to Group D employees of the Navy depending upon whether or not they possessed the qualification of a pass in 8th standard from a recognised Board/Institution, the qualification laid down for direct recruitment. This view appeals to us as rational more so because we notice that, as a matter of fact, the category of Group D employees of the Navy comprises of both, persons who have the qualification of a pass in 8th standard and those who do not have those qualifications. It is apparent, therefore, that the Rule makers thought it fit to permit such of those Group D employees of the Navy, who possessed the qualification of pass in 8th Standard, to apply for absorption along with their less qualified colleagues who had to have the minimum required experience of 5 years in the prescribed pay scale in the absence of a qualification of pass in 8th standard. In other words, the tenor of the Rule seems to be to consider 5 years experience in the prescribed pay scale as equivalent to a qualification of pass in 8th standard, so far as Group D employees of the Navy are concerned. No doubt the same rationale would also apply to the second category of persons viz. Persons serving in analogous, equivalent or higher grades in the lower formations of the Defence Services with at least five years regular service in the prescribed pay scale, but we are not concerned with such persons in the cases before us. We also notice that while it was urged on behalf of the respondent that the qualification of a pass in 8th standard was one that was prescribed across the board for similar posts in Annexure A2 Rules, as rightly pointed out by counsel for the petitioners, the said prescription is only as a desirable qualification in those posts. We must hasten to add, however, that we are not impressed with the alternate view advanced by Adv.Sri.Govindaswamy that the qualification, of possession of five years regular service in the prescribed pay scale, would apply to only the second category of persons viz. "Persons serving in analogous, equivalent or higher grades in the lower formations of the Defence Services" and that Group D employees of the Navy, on account of their mere classification as such, could be considered for absorption without any further requirement as regards experience or qualification. For the reasons we have stated above, such an interpretation of the Rule would frustrate the object of the Rule and would further result in treating persons possessing the qualification of pass in 8th standard and those without such qualifications as equals for the purposes of the Rule. This would result in patent arbitrariness for one would then be treating unequals as equals for the purposes of the Rule. Such an interpretation has necessarily to be eschewed.

13. The issue that must next engage our attention is the meaning to be ascribed to the bracketed portion of the Rules dealing with the maximum permissible period of deputation. In this connection, we must note that, unlike in the case of other posts in Annexure A2 Rules, where deputation is expressly provided as a method of recruitment in addition to other methods of recruitment, the Rule in the instant case provides for absorption as the sole method of recruitment. It is therefore apparent that deputation was not intended as a method of recruitment to the post of Unskilled Labourer. Recruitment Rules are but manifestations of recruitment policies and we have to gauge the intention of the Rule maker from the express provisions in the Rules. In that process, we have to necessarily refrain from reading into the Rules something that is not expressed therein. The bracketed portion of the Rules must therefore be treated as qualifying the deputation, if any, undergone by a candidate seeking appointment to the post of Unskilled Labourer through absorption. This is the only meaningful way in which we can read the Rule. 

14. If the Rule is interpreted in the manner we have indicated, then it follows that the petitioners, who were Group D employees of the Navy and who possessed the qualification of a pass in the 8th standard, stood included in the feeder category of persons eligible for absorption. They had a right to be considered for absorption to the post of unskilled labourer as per Annexure A2 Rules. Non-consideration of their candidature for absorption in terms of the said Rules was therefore wholly unjustified. There is no merit in the contention of the official respondents that if such a view is accepted then anyone who has worked for even a year or less can get absorbed by reason of mere possession of the requisite qualification. We are of the view that the purport of the Rule is to allow absorption either based on five years experience or possession of educational qualification and only in the absence of in-service candidates possessing either, can there be a resort to direct recruitment. 

Issue 4: Having found that the petitioners were eligible to be considered for promotion, by absorption, in terms of Annexure A2 Rules, to the post of Unskilled Labourers, we must now deal with the contention on behalf of the Naval establishment that the petitioners had, pursuant to an upgradation of posts in the year 2006, ceased to be Group D employees and had since become Group C employees. The argument advanced on behalf of the establishment is that insofar as the petitioners had ceased to be Group D employees after 2006, they could not be considered for appointment to the post of Unskilled Labourers in terms of Annexure A2 Rules as the said Rules included within the feeder category only Group D employees of the Navy. Although, at first blush, the argument appears to be attractive, we find that it cannot be accepted. No doubt, the upgradation effected in 2006 resulted in a change in the classification of the posts from Group D to Group C. A perusal of the upgradation order dated 30.04.2010 makes it clear that it was not a mere financial upgradation or an upgradation in pay bands, as contended by the petitioners, for the order clearly states that pursuant to the upgradation, there was to be no further recruitment to Group D posts. This is sufficient indication of the fact that the upgradation effectively resulted in a change in the very classification of the post. It is also not in dispute that classification of posts is itself based on pay scales and the pay scales in this case were upgraded. It is also seen from a perusal of the upgradation order that for persons who could not be immediately upgraded, a training was envisaged, so as to render them suitable for the upgraded post. The order also envisaged the framing of new recruitment rules for Group C posts considering the change in classification. These factors, taken together, leave us with no doubt that the upgradation of posts resulted in a change in the classification of the post from Group D to Group C. The question, however, is whether this would affect the claim of the petitioners for promotion to the post of Unskilled Labourer. The answer is to be found in the conduct of the Naval establishment, which had to fill vacancies by resort to an un-amended recruitment rule. We note that although the upgradation took effect from 2006, the amended recruitment rules were promulgated only in 2012. In the interregnum, the Naval establishment was constrained to fill vacancies to the post of Unskilled Labourers owing to the shortage in work force that was felt by them. This they did, through Annexure R1 memorandum, by resort to Annexure A2 Rules and by ignoring the classification change of Group D employees. Their action was prompted by necessity and in a situation where they had to effect recruitments using a Rule that was not otherwise workable. This is clear from the averments in paragraph 3 of the counter affidavit filed on behalf of the Naval establishment on 17.06.2014 in OP (CAT) 37/2014, which reads as follows: 
"At the outset it is humbly submitted that on implementation of 6th CPC recommendations, all group D posts of Navy have been redesignated and upgraded to Group C with effect from 01.01.2006 with revised pay scale in Pay Band I with Grade Pay of 1800 as evident from annexure A-5 and the post of USL has been redesignated as MTS (Industrial) and now Tradesman Mate (TDM). Now all the petitioners are working as MTS in Group 'C' post. Accordingly Recruitment Rules (hereinafter referred to as RR) have also been revised. Resultantly, A-2 Recruitment Rules have been replaced by A-4 (SRO 43 dated 18 May 12) Recruitment Rules. However, necessary action had already been initiated by the respondents on 16 February 2012 vide Office Memorandum CS 2702 dated 16 February 2012 (Annexure R-1) for absorption of the entitled Personnel against the vacancy of USL in accordance with pre- revised RR. Accordingly 56 individuals were absorbed and actions were taken to fill up the remaining 235 vacancies by Direct Recruitment (hereinafter referred as DR) considering the acute shortage of manpower in the Naval units which seriously affected the operations of the organisation. It is pertinent to mention that the respondents were bound to act as per annexure A-2 as A-4 was received only after publication of notification for DR." 
Having chosen to interpret the Rule in a manner that rendered it workable in respect of vacancies that arose prior to the promulgation of Annexure A4 Rules, they could not deny the petitioners, who were no different than those who were appointed pursuant to Annexure R1 memorandum, the same treatment by adopting a technical stand in the matter. What's sauce for the goose is also sauce for the gander. Had the Naval establishment interpreted Annexure A2 rules correctly, and in the manner we have indicated, there would have been no occasion to exclude the petitioners from a consideration to the vacancies that were sought to be filled through issuance of Annexure R1 memorandum. We are, therefore, of the view that the establishment cannot rely on the classification change brought about in 2006 to deny the rightful claim of the petitioners for consideration to the post of Unskilled Labourer in terms of Annexure A2 Rules. 

Issue 3: We must now address the argument of the respondents that the petitioners were estopped from challenging the direct recruitment notification as they chose not to challenge their exclusion in Annexure R1 memorandum. The contention appears to be premised on the principles of estoppel and waiver and the issue to be examined is whether the petitioners had, through their conduct, waived their right to be considered for the post of unskilled labourer. As we have already noted, the Naval establishment was of the bonafide belief that Annexure A2 Rules did not envisage the inclusion of a Group D employee of the Navy, without five years regular service in the prescribed pay scale, in the feeder category to the post of Unskilled Labourer. Although we have found that the said interpretation of the Rule was flawed, the fact remains that Annexure R1 memorandum called for applications only from those persons whom the Naval establishment considered as qualified. This, quite evidently, did not include either persons such as the petitioners herein or even those falling in the second limb of the first part of Annexure A2 Rule. It was a situation where all players were labouring under a mistake as to the true scope and ambit of the Rules. Past recruitments had also been conducted in the same manner. The contention, with regard to their right to be considered in terms of Annexure A2 rules, was urged by the petitioners for the first time only when the Naval establishment proposed to fill the remaining vacancies, in the post of Unskilled Labourer, through direct recruitment. It is no doubt true that in the O.A. there is no mention of Annexure R1 leave alone a challenge to the same. Further in the rejoinder it is inter alia contended that calling for volunteers with five years experience is against the rules. 

15. It is in the light of the above facts that we have to decide the issue as to whether the conduct of the petitioner, in not challenging their exclusion in Annexure R1 memorandum, would be fatal to their claim for consideration to the post. The principle of estoppel has its origins in Equity and the willingness of Courts to prevent an injustice that could arise from an unconscionable conduct of the party estopped. Similarly, for the principle of waiver to apply, it must be demonstrated that a person well aware of his rights, had through his unambiguous conduct and mindful of the consequences thereof, relinquished the same. When viewed in the factual backdrop of the instant case, where an all-pervasive air of ambiguity prevailed in the matter of interpretation of Annexure A2 Rules, we find ourselves unable to infer either an estoppel or a waiver from the conduct of the petitioners. More importantly it is also significant to note that the petitioners do not seek to impugn the selection done pursuant to Annexure R1 memorandum or claim any seniority over the persons so selected. That apart, as noted earlier, this is a case where all the persons covered by the first part of the Rule were not invited to apply. The claim of the petitioners is restricted to an inclusion, in the feeder category to the post, in respect of vacancies that had to be filled through an application of Annexure A2 Rules. There would, therefore, be no prejudice caused to those appointed pursuant to Annexure R1 memorandum if the petitioners are also considered for absorption to the post in question. As far as the Naval establishment is concerned, they cannot complain of any prejudice if all that is contemplated is a proper recruitment in accordance with the Rules. Issue 5: We now turn to the contention of the respondents that some of the members of the petitioner Union had participated in the selection procedure notified through the Direct Recruitment notification and had emerged unsuccessful. The said persons, it is urged, cannot now turn around and challenge the process of direct recruitment. No doubt the said persons would contend that this is not a case where, having applied under a notification and failed, they were attempting to impugn the selection procedure itself. Rather, they would point out that the selection by direct recruitment had been impugned well prior to their participation in it. They contend, therefore, that although no formal protest was lodged by them, while opting for direct recruitment, the institution of the OA had to be deemed as the protest. We are not impressed with this contention. We are of the view that those members of the petitioner Union who chose to abandon their claim for absorption as unskilled labourer, by choosing to participate in the selection process envisaged for direct recruitment under Ext.P1 notification, cannot now insist on a re-consideration of their claim for absorption. Their overt act of choosing an alternate route of recruitment to the post virtually rendered their action inconsistent with their original stand thereby depriving them of any benefit that could stem from the exercise of a discretionary jurisdiction. We are of the view, therefore, that such persons forfeited their right to claim absorption as per Annexure A2 Rules. In this view of the matter, therefore, we are not impresssed with the aforementioned contention of the respondents and we reject the same.

In the result, these original petitions have to succeed. We allow the same by holding as follows: 
  • Annexure A2 Rules, in their application to the post of Unskilled Labourer, must be seen as including within the ambit of the feeder category, three categories of persons namely, 
(i) Group D employees of the Navy with at least five years regular service in the pay scale of Rs.2550-55- 2660-60-3200, 
(ii) Persons serving in analogous, equivalent or higher grades in the lower formations of the Defence Services with at least five years regular service in the pay scale of Rs.2550-55-2660-60-3200; and 
(iii) Persons possessing the qualification and experience as laid down in Column 8 for direct recruitment viz. A pass in the 8th standard from a recognised Board/Institution. 
  • In its application to Group D employees of the Navy seeking absorption to the post of Unskilled Labourer, Annexure A2 Rules must be seen as conferring two avenues of promotion, by absorption, to such employees depending upon whether or not they possess the qualification of a pass in 8th standard from a recognised Board/Institution, the qualification laid down for direct recruitment.
  • The Naval establishment cannot rely on the classification change, brought about in 2006 in respect of Group D employees, to deny the rightful claim of the petitioners for consideration to the post of Unskilled Labourer in terms of Annexure A2 Rules. 
  • The mere fact that the petitioners had not challenged Annexure R1 memorandum cannot be a reason to non suit them in a legitimate pursuit of their rights or to deny them the benefit of the Rules.
  • In the case of those members of the petitioner Union who chose to abandon their claim for absorption as unskilled labourer, by choosing to participate in the selection process envisaged for direct recruitment under Ext.P1 notification and failed in the same, they cannot resurrect their claim for absorption as per Annexure A2 Rules. The said persons, we feel, have forfieted their right to claim absorption as per Annexure A2 Rules.
  • We set aside the impugned order of the Central Administrative Tribunal and allow the OA by quashing Annexures A3 and A7 to the extent they contemplate the filling up of vacancies that arose prior to 9.6.2012 in the category of unskilled labourers by resort to direct recruitment. We further direct the Naval establishment to consider the candidature of those among the petitioners who stand qualified as per this judgment to the said vacancies.
  • We make it clear that after providing for such of the petitioners as indicated above, the Naval establishment will be free to fill up the remaining vacancies by way of direct recruitment pursuant to Annexures A3 and A7 notifications. 

K.M.JOSEPH JUDGE 
A.K.JAYASANKARAN NAMBIAR JUDGE 
prp
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