Delhi High Court
Union Of India & Anr. vs Dalip Kumar on 26 September, 2014
Author: Vipin Sanghi
Bench: S. Ravindra Bhat, Vipin Sanghi
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 26.09.2014
% W.P.(C) 6603/2014 and C.M. No.15704-05 /2014
UNION OF INDIA & ANR.
..... Petitioner
Through: Mr. Jagjit Singh with Mr. J.K. Singh,
Advocates
versus
DALIP KUMAR
..... Respondent
Through: None
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE VIPIN SANGHI
VIPIN SANGHI, J. (OPEN COURT)
1. The petitioner/Union of India has preferred this writ petition under Article 226 of the Constitution of India to assail the order dated 22.05.2014 passed by the Central Administrative Tribunal (CAT/ Tribunal) in O.A. No.797/2014, whereby the Tribunal has allowed the said original application preferred by the respondent, and directed the petitioner to treat the respondent as eligible for 30% LDCE quota examination by counting his service in the grade of Depot Material Superintendant Grade III ("DMS-III") both in the North Eastern Railway as well as Northern Railway, and to further process the respondents case accordingly.
W.P.(C.) No.6603/2014 Page 1 of 62. The respondent/applicant was initially appointed in North Eastern Railway as senior clerk on 08.02.2002. Subsequently, he was promoted to the post of DMS-III with effect from 10.08.2004. On the voluntary request of the respondent, he was transferred to the Northern Railway, though on the lower post of senior clerk, where he joined on 05.12.2005. Subsequently, he earned promotion in the Northern Railway to the post of DMS-III with effect from 12.07.2007.
3. On 06.05.2013, the Northern Railway invited applications for selection to Grade B post under 30% LDCE quota. The advertisement, inter alia, invited all Group C employees having lien at the stores department of Northern Railway, holding posts in the grade minimum of Rs.5000-8000 (revised Rs.9300-34800 + 4200 or in higher Group C grades) with five years non fortuitous service in grade as on 01.04.2011 - which was treated as the crucial date of eligibility to appear in the LDCE.
4. The respondent applied against the said advertisement. The petitioner included the respondents name in the eligible candidates list issued on 26.09.2013, though on provisional basis. The respondent appeared in the written test. However, his result was not declared. He was informed that his candidature had been treated as cancelled on the ground that his previous service with North Eastern Railway had not been considered and, therefore, he was treated as not having completed five years of non fortuitous service in the grade of Rs.5000-8000, which was an essential eligibility condition. The respondent represented against the cancellation of his candidature on 25.02.2014, but to no avail. Consequently, he preferred the aforesaid original application.
W.P.(C.) No.6603/2014 Page 2 of 65. By an interim order dated 05.03.2013, the Tribunal permitted the respondent to appear provisionally in the viva voce test, if he had qualified in the written test. The petitioner, subsequently, informed the Tribunal that the respondent had cleared the written examination.
6. The Tribunal accepted the respondents plea that his service rendered in the post of DMS-III in the North Eastern Railway from 10.08.2004 to 05.12.2005 had to be taken into account to consider the respondents eligibility in terms of the advertisement. If the said service were to be added to his service as DMS-III in the Northern Railway, he would complete five years service in the grade of Rs.5000-8000 on the crucial date, i.e. 01.04.2011.
7. Mr. Jagjit Singh, learned counsel for the petitioner submits that since the respondent had come on transfer on his own request, he was liable to be assigned bottom seniority in the cadre of senior clerk in the Northern Railway, and as DMS-III in the Northern Railway. He submits that for this reason his past service as DMS-III in North Eastern Railway cannot be considered to determine his eligibility for the Grade B posts. The further submission is that his immediate senior Sh. Hemraj K was not eligible for selection on the crucial cut off date, i.e. 01.04.2011. Hence, the respondent could not be considered to be so eligible.
8. Having heard learned counsel for the petitioner and perused the impugned order as well as the applicable circulars, we are of the view that there is no error in the view taken by the Tribunal and the same does not call for interference in our jurisdiction to judicial review. The eligibility condition for 30% LDCE is five years service in the grade of Rs.5000-8000 W.P.(C.) No.6603/2014 Page 3 of 6 as on 01.04.2011. The said eligibility condition nowhere stipulates that the said five years service has to be on a continuous basis. The petitioner does not dispute the fact that the respondent had rendered service for nearly one year and four months as DMS-III in the North Eastern Railway, before being reverted as senior clerk in the Northern Railway.
9. The Tribunal relied on the judgment of the Supreme Court in Union of India & Anr. v. V.N. Bhat, (2003) Supp. 4 SCR 857, wherein the Supreme Court has observed:
"3. .... It is, therefore, not a case where promotion to the higher post is to be made only on the basis of seniority. Even in a case where the promotion is to be made on the selection basis, the concerned employee, even if he be placed at the bottom of the seniority list in terms of the order of transfer based in his favour, he cannot be deprived of being considered for promotion to the next higher post if he is eligible therefore. This aspect of the matter is clearly covered by the three decisions of this Court, namely, A.P. Seb v. R. Parthasarathi, 1998(9) SCC 425=1998(3)SLJ 245(SC), Scientific Advisor to Raksha Mantri v. V.M. Joseph, 1998(5)SCC 305 and Renu Mullick v. Union of India, 1994(1)SCC 373."
10. The same view was taken by the Tribunal in I.C. Joshi & Ors. v. Union of India & Ors. in O.A. No.651/1997 decided on 26.08.1997, while dealing with the case of an inspector who had taken transfer to Delhi Collectorate on their own request, and also accepted bottom seniority. The said decision - the Tribunal notices, was upheld by this Court in W.P. (C.) No.3776/2001 and the Special Leave Petition was also dismissed. Reliance placed by the petitioner on Circular No.34/2006 dated 21.03.2006 was also, in our view, rightly rejected by the Tribunal. The said circular, inter alia, provides:
W.P.(C.) No.6603/2014 Page 4 of 6"(i) while persons who seek transfer on request basis will continue to be assigned bottom seniority in new unit/cadre as per the extant procedure, the service rendered by them in the old unit may be reckoned for determining their eligibility wherever a minimum length of service is prescribed as a condition for promotion including promotion to General Posts in the new unit, subject to the condition that the service so allowed to be counted does not exceed the length of service of their immediate senior in the new unit; and
(ii) the benefit of counting of service at (i) above will be applicable only in those cases where the staff join the new unit on request transfer in the same category of posts. For example this benefit will be admissible in a case where an ASM/SM in the old unit joins on request transfer in another unit as ASM but not in a case where Commercial Clerk in the old unit joins on request transfer in another unit as Officer Clerk."
11. From the aforesaid, it would be seen that the respondent was entitled to count his service rendered in the North Eastern Railway as DMS-III to the extent of the length of the service rendered by his immediate senior in the new unit, i.e. Northern Railway as DMS-III. It is not the petitioners case that the service rendered by the immediate senior of the respondent in the Northern Railway as DMS-III was less than one year four months - which was the service rendered by the respondent as DMS III in the North Eastern Railway.
12. Para 2(ii) quoted above, in any event, had no application in the facts of the present case. The respondents case is not pertaining to selection for 70% of the posts; selection wherefor is based on seniority. The respondent is concerned with the eligibility to participate in the LDCE, which is open to all eligible candidates, irrespective of their seniority.
W.P.(C.) No.6603/2014 Page 5 of 613. For the above reasons, this Court finds no merit in the petition; the same is accordingly dismissed along with the pending applications. The time for compliance by the respondents is hereby extended by four weeks.
VIPIN SANGHI, J S. RAVINDRA BHAT, J SEPTEMBER 26, 2014 sr W.P.(C.) No.6603/2014 Page 6 of 6