Central Administrative Tribunal - Delhi
Sundeep Kumar Sharma vs Municipal Corporation Of Delhi on 7 July, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI TA No.790/2009 (W.P. [C] 9551/2007) New Delhi, this the 7th day of July, 2009 HONBLE MRS. MEERA CHHIBBER, MEMBER (J) HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) 1. Sundeep Kumar Sharma S/o Shri S.S. Sharma 37 years R/o S.D. 245, Shastri Nagar, Ghaziabad. 2. Shri Vishnu Kumar Rawat S/o Shri D.R. Rawat R/o E-20/192-163 Ist Floor, Sector-3, Rohini, New Delhi-50. 3. Shri Santosh Kumar S/o Shri Ravindta Prasad R/o Flat-106, Shipra Apartment, Kaushambi, Ghaziabad (UP)-201010. 4. Shri Vikas Jain S/o Shri Naresh Jain R/o C-2/5A, West Enclave, Pitampura, Delhi-110 034. ..Petitioners By Advocate: Ms. S. Janani. Versus 1. Municipal Corporation of Delhi Through its Commissioner, Town Hall, Chandni Chowk, Delhi. 2. Additional Commissioner (Engineering), Municipal Corporation of Delhi Town Hall, Chandni Chowk, Delhi. 3. The Director (Personnel) Municipal Corporation of Delhi Town Hall, Chandni Chowk, Delhi. Respondents By Advocate: Shri A.K. Paul. ORDER
By Honble Mrs. Meera Chhibber, Member (J) Petitioners had initially filed Writ Petition No. 9551/2007 which has been transferred to this Tribunal vide order dated 2.2.2009 in view of Notification dated 1.12.2008. The petition has now been numbered as TA 790/2009.
2. Petitioners have challenged the seniority list of Assistant Engineers (Electrical)[hereinafter referred to as AE{E}] in Municipal Corporation of Delhi (hereinafter referred to as MCD) with a direction to the respondents to recast the seniority list of AE(E) by rotating the vacancies between promotees of 1998 and direct recruits.
3. It is submitted by the petitioners that they were appointed as AE (E) by Delhi Subordinate Service Selection Board (hereinafter referred to as DSSSB) in the year 2002-03 against the 50% direct recruitment quota. However, prior to their appointment, no direct recruitment was made, instead the vacancies of direct recruit quota were filled by the promotees without any selections on a look after basis which was later made ad hoc and subsequently regularised. The direct recruit quota was advertised after several years in the year May, 2002 for 8 posts out of which 4 were for general category while 4 were for reserved category. It is stated by the petitioners that the final seniority list of AE (E) was issued in May, 1994 but thereafter a provisional seniority list was issued by the respondents in January, 2006 wherein promotees have been placed en-block senior to the petitioners who have all been bunched together. Feeling aggrieved, petitioners gave their objections but ignoring their objections the list has been finalized.
4. Grievance of the applicants is that the respondents have not followed the principle of rota-quota. According to the counsel for the petitioners the seniority should have been rotated on the basis of 1:1 because as per the Recruitment Rules (hereinafter referred to as RRs) 50% are to be filled up by direct recruitment and 50% by way of promotion. According to the petitioners their seniority should be fixed as follows:-
1. Sundeep Sharma Promotee of 1998 Vishnu Kumar Rawat Promotee of 1998 Santosh Kumar Promotee of 1998 Vikas Jain Promotee of 1998.
They have thus prayed that their petition may be allowed.
5. Respondents have opposed this petition. They have stated petitioners have challenged the seniority list of AE (E) in MCD and have prayed to recast the seniority list of AE(E) by rotating the vacancies between promotee of 1998 and direct recruits of 2003 and 2004. They have explained that a requisition was sent to the recruiting agency, i.e. DSSSB for recruitment of AEs (E) against 7 vacancies of AEs vide letter bearing No.F.5(30)/CED(II)/2000/20013 dated 21.7.2000. However, after due selection process, the DSSSB vide its letter dated 2.7.2003 forwarded the dossier of S/Shri Sundeep Kumar Sharma, Vishnu Kumar Rawat and Santosh Kumar as per the merit list. Further the dossier of Shri Vikas Jain was forwarded by DSSSB vide its letter dated 19.1.2004. Thus in the year 2003 and 2004, on the recommendation of DSSSB and with the approval of Commissioner, MCD, 4 candidates were given appointment to the post of AE (E) in the pay scale of Rs.6500-10500.
6. That a final seniority list of AE (E) comprising the name of three Assistant Engineers, who were recommended by the DPC held in the year 1998 was issued vide Circular dated 6.8.2002. Thereafter, a DPC was held in the year 2002 and 2004 and 5 officials were given regular promotion to the post of AE (E).
7. They have explained as per the RRs for the post of AE (E) the quota for appointment in AE (E) is as follows:-
Method of recruitment. Whether by direct or by promotion or by deputation/transfer and percentage of the vacancies to be filled by various methods. 50% by promotion, failing which by direct recruitment and falling both by transfer on deputation/transfer and 50% by direct recruitment failing which by transfer on deputation/transfer.
but there is no provision in the RRs for the fixation of inter-se seniority between the direct recruits and promotees, therefore, the respondents are following well settled principle that both the categories are assigned seniority when they are born in the cadre. They have relied on the judgment of Suraj Prakash Gupta and Others Vs. State of Jammu and Kashmir decided on 28.4.2004 in Civil Appeal No.3034 to 3047/2007 wherein it was clarified that direct recruits cannot claim seniority from the date of vacancy in the quota before their selection. A direct recruit can claim seniority only from the date of his regular appointment. He cannot claim seniority from the date when he was not born in the service. They have also placed reliance on the judgments in the case of N.K. Chauhan Vs. State of Gujarat reported in 1997 (1) SCC 308 and A.N. Pathak Vs. Secretary to the Government reported in 1987 (Suppl) SSC 783 as well as on OM dated 3.7.1986. They have thus prayed that the petition may be dismissed.
8. We have heard both the counsel and perused the pleadings.
9. In the instant case though petitioners have sought quashing of the seniority list with a further direction to place them above the promotees in the ratio of 1:1, but none of the promotees have been impleaded as a party in this case. The law is well settled that no orders can be passed in the matter of seniority if it can cause prejudice to the others unless they are impleaded as respondents. Petitioners in the instant case have claimed they should be placed above the persons as mentioned in para 3 above. It goes without saying, if the relief, as prayed by them is granted, it would definitely affect the rights of those persons above whom petitioners want to be placed in the seniority list, therefore, they were necessary party in this case. This petition is, therefore, liable to be dismissed for non-joinder of necessary parties.
10. Counsel for the petitioners submitted that since they have challenged the seniority list on the basis of principle there was no need to implead the private respondents as parties. This argument cannot be accepted because the fact remains that the petitioners want to be placed above some of the promotees, therefore, this contention is rejected. The petition could have been dismissed on this ground alone but we find there is no case even on merits.
11. The method of recruitment as per the RRs is as follows:-
Method of recruitment. Whether by direct or by promotion or by deputation/transfer and percentage of the vacancies to be filled by various methods. 50% by promotion, failing which by direct recruitment and falling both by transfer on deputation/transfer and 50% by direct recruitment failing which by transfer on deputation/transfer.
12. From above, it is clear that there is no quota as such for direct and promotees alone. In fact though 50% of the posts are required to be filled by way of promotion but if eligible candidates are not available then these posts could be filled by way of direct recruitment and if direct recruitment was also not available then the posts could be filled even by transfer on deputation/transfer. Similarly though 50% of the posts were required to be filled by way of direct recruitment but if due to some reason direct recruitment was not possible it could be filled by transfer on deputation/transfer. It is thus clear that it is not a case where 50% of the posts were necessarily to be filled either by way of promotion or 50% by way of direct recruitment alone. Since another mode was made available in the RRs itself, therefore, the question of rotating the vacancies in the ratio of 1:1, i.e., promotee & direct recruitment does not arise. Respondents have rightly assigned them the seniority from the date they were born in the cadre. As per petitioners own case, they were appointed only in the year 2002 or 2003 whereas they want to be placed above the persons who were promoted in the year 1998. If the prayer of the petitioners was to be accepted, it would mean giving them seniority from the date when they were not even born in the cadre of the AE (E). This position has already been clarified by the Honble Supreme Court in the case of Suraj Prakash Gupta and Others Vs. State of Jammu and Kashmir decided on 28.4.2004 in Civil Appeal No.3034 to 3047/2007.
13. In view of above, we find no merit in the petition. The same is accordingly dismissed. No order as to costs.
(Dr. Ramesh Chandra Panda) (Mrs. Meera Chhibber)
Member (A) Member (J)
Rakesh