Central Administrative Tribunal - Delhi
Mcd Translator Association (Regd.) vs Shri R.K. Srivastava on 7 March, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
C.P. No.161/2012 In
T.A. No. 200/2009
M.A. No. 1894/2012
M.A. No. 2251/2012
Order Reserved on:18.02.2014
Pronounced on 07.03.2014
Honble Mr. V. Ajay Kumar, Member (J)
Honble Mr. V.N. Gaur, Member (A)
MCD Translator Association (Regd.)
Through its Member Shri Madan Lal
R/o C-72, Ganesh Nagar, New Delhi-110018.
-Applicants
[By Advocate: Shri M.K. Bhardwaj]
Versus
1. Shri R.K. Srivastava
Secretary,
Urban Development Department,
Govt. of NCT of Delhi,
10th Level, C-Wing,
Delhi Secretariat, I.P. Estate,
New Delhi.
2. Shri R.K. Srivastava,
Director, Local Bodies,
New Secretariat,
I.P. Estate,
New Delhi.
3. S.S. Yadav
Commissioner,
East Delhi Municipal Corporation,
Udyog Sadan,
419, Patparganj Industrial Area,
Delhi-110092.
4. Manish Gupta
Commissioner,
South Delhi Municipal Corporation,
Shyama Prasad Mukherjee Civic Centre,
Minto Road, New Delhi-110002.
5. P.K. Gupta
Commissioner,
North Delhi Municipal Corporation,
Shyama Prasad Mukherjee Civic Centre,
Minto Road,
New Delhi-110002.
6. A. Bhattacharya
Secretary,
UPSC, Dholpur House,
Shahjahan Road,
New Delhi.
-Respondents
(By Advocates: Mrs. Rashmi Chopra, Shri R.K. Jain and Shri Naresh Kaushik).
O R D E R
Mr. V.N. Gaur, Member (A):
Aggrieved by the non-implementation of the direction given by this Tribunal in TA-200/2009 on 13.05.2009 the applicants have filed this Contempt Petition no.161/2012. In the order dated 13.05.2009 this Tribunal had given the following directions:
2. Translators in MCD, who seeks promotion as Administrative Officers, are aggrieved by the reduction of their quota from 10% to 5% in consultation with the UPSC. The Urgent Business No.161 - Resolution dated 14.1.2008 indicates that by way of amendment in the Recruitment Rules, the percentage of feeder category of Translator has been raised from 5% to 10%. However, the matter has to be placed before the Corporation and also to be notified for its being come into effect for application.
3. In the above view of the matter, we dispose of this TA with a direction to the respondents to give effect to Urgent Business No.161 by publication on approval regarding 10% quota of Translator for promotion to the post of Administrative Officer and thereafter to consider the claim of the applicants for promotion within a period of three months from the date of receipt of a copy of this order. No costs.
2. The respondents filed Writ Petition (Civil) no.12713/2009 in the Honble High Court of Delhi, which was disposed of on 15.07.2010 with the following order:
1. For the post of Administrative Officer, amongst others is the post of Translator which serves as a feeder cadre post. The Corporation, with the approval of UPSC, reduced the quota for promotion of Translators to the post of Administrative Officers from 10% to 5%. However, having a re-look to the number of persons in the different feeder category posts in the cadre, the Corporation initiated a resolution to re-amend the notified recruitment rules so that the translators would regain the 10% quota in the promotional cadre.
2. The post of Administrative Officer is a category B post and as per the provision of Delhi Municipal Corporation Act, 1957 the amendment to the recruitment rules requires prior permission of the Central Government which in turn seeks the opinion of the Union Public Services Commission.
3. Notwithstanding that the corporation had itself initiated the resolution to amend the recruitment rule, the Tribunal has vide an order dated 13.5.2009, directed as under:-
In the above view of the matter, we dispose of this TA with a direction to the respondents to give effect to Urgent Business No. 161 by publication on approval regarding 10% quota of Translator for promotion to the post of Administrative Officer and thereafter to consider the claim of the applicants for promotion within a period of three months from the date of receipt of a copy of this order. No costs.
4. The petitioner appears to be aggrieved by the fact that direction has been issued to it for giving effect to its resolution.
5. Learned counsel for the claimants before the Tribunal, who are impleaded as respondents No.1 and 2 in the writ petition, states that by incorporating the words by publication on approval the intention of the Tribunal is that the resolution would be given effect to only once approval is accorded by the Central Government.
6. Learned counsel for the petitioners states that if the direction issued by the Tribunal is to read that the necessary action has to be taken by the Corporation only after the Central Government grants the necessary approval to the resolution of the Corporation, then the petitioner has no grievance.
7. We dispose of the writ petition clarifying that the direction issued by the Tribunal would mean that the Corporation would have to give effect to its resolution only after the same meets the approval of the Central Government.
8. Noting that the Central Government is not a party in the present proceedings nor was it a party before the Tribunal, we can but only hope and expect that the Central Government would expedite the consideration of the matter emanating from the resolution of the Corporation as proposed in the agenda item No. 161 dated 14.1.2008. But since the Municipal Corporation of Delhi is before us we direct the petitioner to expedite the consideration of the matter by the Central Government by sending an urgent reminder to the Central Government to expedite the consultative process with UPSC. Further, since UPSC is a respondent before us and is represented through counsel, we direct UPSC to expedite the opinion which UPSC has to render to the Central Government.
9. Needless to state the MCD would act as the nodal agency and would ensure that its resolutions are sent to the concerned authorities with utmost despatch and are processed with utmost despatch.
10. No costs CM No. 13405/2009 (stay) Since the writ petition has been disposed of, this application has become infructuous. Dismissed accordingly.
3. This Tribunal vide order dated 11.11.2009 gave two weeks time to the respondents to file compliance report and disposed of the CP-414/2009 filed in TA no.200/2009. The respondents, however, in the meantime continued to promote officials from the cadre of Administrative Officer (AO)/Assistant Assessor and Collector (AA&C)/ Superintendents/Translators/Senior Stenographers on the basis of the old Recruitment Rules (RRs) vide orders dated 08.10.2010, 18.03.2011 and 31.03.2011. The applicants filed this CP-161/2012 on 22.02.2012 seeking a direction to the respondents to implement this Tribunals order dated 13.05.2009 passed in TA no.200/2009 and initiate contempt proceedings against the respondents for their willful disobedience. The applicants filed MA-1894/2012 on 04.07.2012 with a prayer to restrain the respondents from filling up the vacancies of AO/AA&C in terms of advertisement dated 26.06.2012 on the plea that in the absence of the modified RRs within 10% quota of promotion their interest will be prejudiced if these posts are filled up. The applicants filed another MA-2251/2012 on 13.08.2012 with a prayer to take the amended memo of parties filed on 17.05.2012 on record, impleading Secretary, Urban Development Department, Govt. of NCT of Delhi, Director, Local Bodies, Commissioners of all MCD and Secretary, UPSC. The respondents filed Writ Petition (Civil) no.7086/2012 against the order dated 18.10.2012, where the following order was passed:
2. In fact, vide urgent business Resolution No.161, the Municipal Corporation of Delhi had already resolved to increase the quota of Translators for promotion to the post of Administrative Officer from 5% to 10%, keeping in view the cadre strength of Translators and other feeder category posts.
3. With the trifurcation of the Corporation, Director (Local Bodies),Government of NCT of Delhi stands empowered to resolve inter-se issues between the three statutory trifurcated Corporations as also the employees of the erstwhile Municipal Corporation of Delhi.
4. The Honble High Court stayed the order of this Tribunal in the contempt proceedings and accordingly CP-161/2012 was closed on 19.11.2012. The applicants filed MA-1298/2013 on 25.04.2013 for revival of the contempt petition after the Honble High Court disposed of WPC-7086/2012 taking on record the submission of the respondents that the proposal for 10% quota for the Translators had been sent by Director (Local Bodies) to the UPSC on 22.02.2013 on an application by Director (Local Bodies) the Honble High Court noted that the proposal sent to the UPSC included 5% for the Translators and not 10%. However the question whether such a change in the proposal amounted to contempt of the order of this Tribunal dated 13.05.2009 in TA-200/2009 was left open.
5. The issue on hand is whether the respondents have committed contempt of this Tribunals order dated 13.05.2009 in TA-200/2009. The Tribunal had directed in that order (i) to give effect to Urgent Business No.161 by publication on approval regarding 10% quota of Translator for promotion to the post of Administrative Officer and (ii) to consider the claim of the applicants for promotion within a period of three month. The publication of the amended RRs on the basis of the Urgent Business no.161 was contingent to approval. The Honble High Court in the order dated 15.07.2010 dealt with the words by publication on approval and directed that direction issued by the Tribunal would mean that the Corporation would have to give effect to its resolution only after the same meets the approval of the Central Government. The MCD was also directed to act as a nodal agency to expedite the process of approval by the authorities. According to the counter filed on behalf of the MCD on 04.05.2012 the matter was pending with the UPSC and the consultations were in progress. In its status report filed by the UPSC-respondent no.6 on 17.10.2013 intimated that the UPSC had been corresponding with the MCD to get the supplementary information for consideration of the RRs. However, they were not getting expeditious reply and made a prayer for discharging from the list of the respondents in the contempt petition. In another status report filed on behalf of the Director (Local Bodies)- respondent no.2 on 24.07.2012 it was intimated that the RRs for the posts of AO/AA&C in South, North and East Delhi Corporations had been notified after concurrence of the UPSC and approval of Lieutenant Governor, Delhi vide notification dated 17.06.2013.
6. The applicants filed MA-1890/2013 on 19.07.2013 with a prayer to restrain the respondents from making any further promotion to the grade of AO on the basis of the RRs that had been notified vide notification dated 17.06.2013. In its reply the Director (Local Bodies)-respondent no.2 submitted that the department came into existence on 04.05.2012 after the trifurcation of MCD and was not a party in the original OA. Further, Urgent Business no.161 Resolution was an internal matter of MCD and Director, Local Bodies was not a party there. The Honble High Court order dated 15.07.2010 in WPC no.12173/2009 clearly stated that the RRs will have to be published after the same met with the approval of the Central Government and in this case it took time to obtain the necessary approval for notification of the RRs. In the meeting held on 20.12.2012 in compliance of the direction of the Honble High Court the North MCD agreed to send the draft RRs for the posts of AO/AA&C within a week to Directorate of Local Bodies so that the same could be submitted to the Services Department and then to UPSC for concurrence. The MCD sent the draft RRs to the answering respondents on 01.01.2013 wherein 5% quota was prescribed for Translators for promotion to the post of AO, which in turn was forwarded to the UPSC on 14.01.2013. This fact of reduction from 10% to 5% was brought on record by the Director, Local Bodies in its submission to the Honble High Court on 22.02.2013. Thus, the Director, Local Bodies was never a party in the modification of the promotion quota of Translators. It was further submitted that the order of the Tribunal dated 13.05.2009, which merged with the orders of the Honble High Court dated 15.07.2010, 22.12.2010, 16.01.2013 and 22.01.2013 could not be considered in isolation to allege contempt when none existed. The applicants at all stages have been aware and participated in all proceedings and cannot allege fraud. The learned counsel relied on an order of this Tribunal in CP-644/2012 in OA-878/2011 Manoj Kumar v. Shri Neeraj Kumar and decision in J.S. Parihar v. Ganpat Duggar and others, (1996) 6 SCC 291, where it has been held by the Honble Supreme Court that once there is an order passed by the Govt. on the basis of the direction issued by Court there arises a fresh cause of action to seek redressal in an appropriate forum.
7. The learned counsel for the North MCD, respondent no.5 stated that in their reply filed on 24.12.2013 steps taken by the erstwhile MCD and subsequently North MCD have been elaborated. There have been a series of correspondence between the MCD, Urban Development department and UPSC with regard to the RRs and the matter could not be finalized as there were certain queries, first from Urban Development department and later from UPSC. The MCD had sent a proposal on 16.03.2011 for framing of RRs in relation to 10% quota for Translators to the Principal Secretary, Urban Development department, Govt. of NCT of Delhi. In response to that letter certain clarifications were sought from the Urban Development department from this Tribunal in TA no.200/2009 and it was at that stage that this Tribunal directed the Commissioner, NDMC to appear in person on the next date of hearing. This order of the Tribunal was challenged by the NDMC in the Honble High Court in WPC no.7076/2012 on the ground that the Corporation was not competent to notify the RRs and the same are to be done by the Govt. of NCT of Delhi. The Honble High Court vide order dated 30.11.2012 issued notice and recorded that both the parties had assured that they would sit together to sort out the matter finally. In compliance of that order a meeting took place between the NDMC and the Additional Director (Local Bodies) in the office of the Additional Director (Local Bodies) on 20.12.2012. As a follow up the NDMC vide letter dated 01.10.2013 sent copy of the amended RRs to the Director (Local Bodies) as per the discussions in the meeting held on 201.12.2012, who has in turn forwarded it to the UPSC, a fact which was noted by the Honble High Court in its final order in WPC no.7086/2012. It has already been taken on record by the Honble High Court that the proposal sent was for 5% quota for the Translators. It was submitted that the decision to propose only 5% promotion quota for the Translators was taken in the meeting held on 20.12.2012. However, this fact was not recorded in the minutes of the meeting placed on record by the respondents and the respondents counsel failed to satisfy this Tribunal that such a decision was taken in that meeting. In fact, the learned counsel for the respondent no.2, Director (Local Bodies) categorically stated that they had forwarded the RRs as received from the NDMC, implying thereby that the proposal to retain the quota of 5% was contained in the draft RRs sent by the NDMC. The Director (Local Bodies) had no hand in it.
8. From the applicants side, on the other hand, it was vehemently argued that the action of the respondents in reducing the 5% quota for Translators from 10% was a blatant act of contempt of the order passed by the Tribunal in TA-200/2009. The respondents were given time repeatedly for implementation of that direction but in the end they manipulated the whole process to defy the direction of the Tribunal. The Honble High Court had held that it was for the Tribunal to decide the respondents action in mentioning 5% quota for Translators would constitute contempt or not, the Honble High Court did not consider the issue regarding the percentage of quota for Translators on merit. It was further alleged that it was the handy work of Shri S.K. Sharma, the then Assistant Commissioner, who had forwarded the draft RRs to UPSC with the provision of 5% quota despite clear resolution of the MCD as well as direction of this Tribunal and, therefore, it was a proven case of contempt on the part of the respondents.
9. We have gone through the material placed on record and the arguments presented by the counsels from both the sides. From the sequence of events as narrated in preceding paragraphs it is obvious that the matter has now gone back to the order dated 13.05.2009 in TA-200/2009, through which, according to the applicants, this Tribunal had directed the respondents to finalize the RRs with 10% promotion quota for Translators. Even though the fact that the draft RRs sent to the UPSC by the Director (Local Bodies)-respondent no.2 contained a provision for 5% quota, was taken on record by the Honble High Court, the issue of contempt was left to this Tribunal to decide. Before proceeding further, we can have a close look at the order passed by this Tribunal on 13.05.2009, as reproduced below:
Heard the learned counsel for the parties.
2. Translators in MCD, who seeks promotion as Administrative Officers, are aggrieved by the reduction of their quota from 10% to 5% in consultation with the UPSC. The Urgent Business No.161 - Resolution dated 14.1.2008 indicates that by way of amendment in the Recruitment Rules, the percentage of feeder category of Translator has been raised from 5% to 10%. However, the matter has to be placed before the Corporation and also to be notified for its being come into effect for application.
3. In the above view of the matter, we dispose of this TA with a direction to the respondents to give effect to Urgent Business No.161 by publication on approval regarding 10% quota of Translator for promotion to the post of Administrative Officer and thereafter to consider the claim of the applicants for promotion within a period of three months from the date of receipt of a copy of this order. No costs.
10. It can be seen that the Tribunal had noted the grievance of the Translators with regard to the reduction in their quota from 10% to 5% in consultation with the UPSC. It had also noted that the Urgent Business No.161 Resolution dated 14.01.2008 indicated that by way of amendment in Recruitment Rules, the percentage of feeder category of Translator has been raised from 5% to 10%.
11. After noting these facts the Tribunal directed the respondents to give effect to the Urgent Business no.161 by publication on approval regarding 10% quota of Translator for promotion to the posts of Administrative Officer. It can be seen from this order that the Tribunal did not go into the merits of the fixation of percentage quota for promotion of Translators. It had only taken note of the MCDs own decision to raise the quota from 5% to 10% and directed the respondents to implement its own decision by notifying the RRs with such a provision. The emphasis in the direction was to implement the decision taken by the respondents themselves and the Tribunal had not examined the demand of the Translators that it should not be reduced from 10% to 5%. Within the MCD somewhere down the line there has been a deviation from the Urgent Business no.161 Resolution dated 14.01.2008 while finalizing the RRs over a period of time. The records produced by the respondents nowhere show as to who and at what point in time decided to change the quota from 10% to 5% contrary to the Resolution passed by the concerned body of the MCD. It is also not clear from the records what approvals are required for notifying the RRs because it is recorded in the Tribunals order that the Urgent Business no.161 Resolution was to be placed before the Corporation and later it has been submitted that it requires the approval of the Central Government also. Finally it is not clear whether the RRs that have been notified did get the approval of the Corporation and the Central Government, as had been pleaded at different stages by the respondents. However, with reference to the order passed by this Tribunal in TA-200/2009 on 30.05.2009 we are of the considered view that the quota that has to be fixed for the Translators in the RRs was not the issue which this Tribunal had adjudicated on merit as it simply took note of the Resolution of MCD and directed for time bound finalization and publication of the RRs in accordance with respondents own decision on quota for feeder grade of Translator. Therefore, a change in the percentage from 10% to 5% contrary to the Urgent Business no.161 Resolution dated 14.01.2008 may be a retraction on, or a failure to implement, respondents own decision but it cannot be said to be a violation of the order of this Tribunal, which had directed the respondents to implement their own decision.
12. In the above view of the matter and aforesaid reasons, we do not find that the respondents have committed contempt of the order of this Tribunal dated 13.05.2009 and accordingly the C.P. is closed and the notices are discharged. MA no.1894/2012 and MA no.2251/2012 are dismissed as infructuous in view of the present order in CP no.161/2012.
(V.N. Gaur) (V. Ajay Kumar) Member (A) Member (J) San.