Central Administrative Tribunal - Delhi
Shri Dalbir Singh vs Govt. Of N.C.T. Of Delhi on 9 November, 2012
Central Administrative Tribunal Principal Bench OA No.3608/2011 MA No.2634/2011 New Delhi, this the 9th day of November, 2012 Honble Mr. George Paracken, Member (J) Honble Mrs. Manjulika Gautam, Member (A)
1. Shri Dalbir Singh S/o late Shri Fateh Singh R/o 4/63, Near Ravidas Mandir, Gali No.1, Shankar Garden Line Par Bahadurgarh, Jhajjar
2. Shri Mahish S/o Shri Om Prakash R/o RZJ-17B, West Sagar Pur New Delhi-46
3. Shri Arun Kumar Duggal S/o Lt. Shri J.R. Duggal R/o 78, DA Flats Ashok Nagar, Phase-I, Delhi
4. Shri Ashish Mishra S/o Shri Raj Ji Mishra R/o T-326-B, Street No.8, Gautam Puri, Delhi-53
5. Shri Amit Kumar Singh S/o Shri Arun Kumar Singh R/o D-1/116-117, Second Floor, Sec-11, Rohini, New Delhi
6. Shri Amit Kumar S/o Shri Bipin Bihari Verma R/o H-1/210-211, Sec-11, Rohini, Delhi
7. Shri Dushyan Kumar S/o Shri Chaudhary Friloki Nath Rai R/o S-3, M-11, Mangalam Housing Society, Abhan Chand-III, Indratanam Ghaziabad, UP
8. Shri Rajeev Kumar S/o Shri Baleshwar Prasad R/o RZH-919, Raj Nagar-II Palam Colony
9. Shri Anil Verma S/o Shri B.R. Verma R/o 115, Garhi East of Kailash, New Delhi-65
10. Shri Vinod Kumar S/o Shri Chhotan Prasad R/o 37,IInd floor, Rampui, Kalkaji, New Delhi
11. Shri Santosh Kumar Gupta S/o Shri Rameshwar Prasad R/o H. No. 420/9, FF Lakshmi Vihar Burari, Delhi-84
12. Shri Rakesh Kumar S/o late Shri C.S.P. Sinha R/o 604, Aravali Tower, Kaushambi, Ghaziabad
13. Shri Rajeev Hayaran S/o Shri Shyam Sunder Hayana R/o S-1, 6/128, Sector 6, Vaishali, Ghaziabad
14. Shri Gopal Aggarwal S/o late Shri Ravi Shankar R/o 107, Hari Nagar Ashram, New Delhi-110014
15. Shri Kisalay Kumar Singh S/o Shri G.B. Singh R/o 5/430, Vaishali, Ghaziabad
16. Shri Manoj Kumar Ambasta S/o late Shri C.P. Ambasta R/o 134, Neelgiri Aptt. Sec-9 Rohini, Delhi
17. Shri Kamal Nayan S/o Shri Sadanand Singh R/o B-78, Delhi Admn. Flats, Timarpur, Delhi
18. Shri Kismat Prasad S/o Shri Net Lal Prasad R/o D16/77, Sec-3 Rohini, Delhi
19. Shri Ajaz Ahmed S/o Shri Anwar Ali R/o B-6, Transit Hotel, 1-A, Battery Lane, Rajpur Road, Delhi-54
20. Shri Avinash Kumar S/o Shri Shyam Deo Sharma R/o Flat No.9, Pocket 06 Sector-23, Rohini, Delhi
21. Shri R.P. Tripathi S/o Shri B.K. Tripathi R/o A-70, Surajmal Vihar, Delhi
22. Shri V.S. Nagi S/o Shri Bishan Singh R/o 2689, Outram Lines, SGT B Nagar, Delhi-9
23. Shri Balwant Singh, S/o Sh. Raghvir Singh, R/o D2A/91A, Janakpur, New Delhi.
24. Sh. Vicky Dhanwaria, S/o Sh. Kishori Lal, R/o 15-D, Randav Nagar, New Delhi-8
25. Sh. Amit Kumar, S/o Sh. Baldev Singh, R/o F-17/75, Sec-8, Rohini, Delhi-85
26. Sh. Salendra Kumar Yadav S/o Sh. Dharamvir Yadav, R/o 142, Gajjar Dariy, Gautam Nagar, New Delhi.
27. Sh. Rakesh Kumar, S/o Sh. Dharambir R/o B-75, Nehru Enclave, Alipur, Delhi-36
28. Sh. Manish Ranjan, S/o Sh. Birendra Prasad Veer, R/o C-5/189, IInd Floor, Yamuna Vihar, Delhi.
29. Sh. Devender Shoken, S/o Shri Raje Singh, R/o H.No.305, Dindar Pur, Najafgarh.
30. Sh. Karan Singh, S/o Late Sh. Devi Sahai, R/o D-79, Street No.3, East Chander Nagar, Krishna Nagar, Delhi-51
31. Sh.Santosh Kumar, S/o Shri Umesh Pandit, R/o J-16, Srijan Vihar, Indirapuram.
32. Sh. Deepak Kumar, S/o Hawa Singh Dhankhar, R/o 64, Gram Sabha, Pooth Kalan Extn,-86
33. Sh. Shishir Kumar Nagaria, S/o Sh. Jagdish Prasad Nagaria, R/o F-1, 306, Shalimar Garden Ext.-1, Ghaziabad, UP-201005
34. Sh. Satish Kumar S/o Late Sh. Diwan Chand, R/o BG-6-283-B Paschim Vihar, New Delhi.
35. Sh. Chandra Bhanu, S/o Shri S.N. Tiwari, R/o G-7/33, Sec-15, Rohini, Delhi-89
36. Sh. Shivendra Kumar, S/o Late Sh.M.N.Das, R/o H.No. 237/1, Gali No.9, Chandan Vihar, Burari
37. Sh.Arvind Kumar, S/o Sh. Gopal Prasad, R/o C-260, Sec-18, Rohini, New Delhi-89
38. Sh.Amar Kumar S/o Shri B.D.Vikal, R/o B-335, Delhi Admn. Flats, Timarpur, Delhi.
39. Sh. Shiv Shankar Kumar S/o Lt. Sh. Nageshwar Singh, R/o 16B/115, Vasundhara, Ghaziabad.
40. Sh. Dilim Kumar Mishra, S/o Late Sh. K.K.Mishra, R/o 73, Jagriti Aptt. Rani Bagh, Delhi-34
41. Sh. Vinod Kumar Dhatrawal, S/o Sh. Girdhari Lal Dhatrawal, R/o 106, DA Flats, Nirmi Colony, Delhi-52
42. Sh.Rajeev Kumar, S/o Sh. Ashok Kumar Sinha, R/o F-131, Raj Nagar-II, Palam Colony, New Delhi.
43. Sh. Ranjan Kumar, S/o Late Sh. Nand Lal, R/o A-6/55, Sec-17, Rohini, Delhi.
44. Sh. Rakesh Kumar Pandey, S/o Lt. Sh. Madan Kishore Pandey, R/o 126, DA Flats, Nimri Colony, Delhi.
45. Sh. M.C. Sharma, S/o Sh. K.M.Sharma, R/o VPO Kalsara, Distt. Alwar, Rajasthan.
46. Sh. Vijay Singh, S/o Sh. Rajender Singh, R/o RZ 4-248, Raj Nagar Part-II, Delhi.
47. Sh. Praveen Kumar, S/o Sh. S.C. Sharma, R/o 86, Gyai Khard II, Indirapuram.
48. Sh.Bipin Kumar Singh S/o Sh. Krishna Nand Singh, R/o 42, Pkt,-04, Sec-24, R Rohini, Delhi.
49. Sh. Naveet Kumar, S/o Shri Chattan Singh, R/o 40 D cc Block, Shalimar Bagh, Delhi.
50. Sh.Manoj Tomar, S/o Shri Samay Singh, R/o J-281/29, Kartar Nagar, Delhi.
51. Sh. Jaljit Dabas, S/o Sh. Randhir Singh, R/o U & PO Majra Dabas. . Applicants (By Advocate Shri Ajesh Luthra ) VERSUS
1. Govt. of N.C.T. of Delhi Through the Chief Secretary, 5th Level, A Wing, Delhi Secretariat, I.P.Estate, New Delhi.
2. The Principal Secretary, (Services), GNCT of Delhi, 7th Level, B Wing, Delhi Secretariat, I.P.Estate, New Delhi. Respondents (By Advocate Shri Vijay Pandita ) Order Mrs. Manjulika Gautam, Member (A) The present OA has been filed seeking the following reliefs:
(a) direct the respondents to draw year wise panels and thereupon consider the applicants on said basis and if found fit by DPC, the promotion order dated 7.2.2011 be modified accordingly and to promote the applicants to Grade-I (DASS) from back date i.e. when they were eligible as per provisions of relevant RRs.
and award all consequential benefits including monetary and seniority benefits.
) pass any other order/direction which this Honble Tribunal deem fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case.
2. 51 applicants in this OA were working as Grade-II (DASS) in the Delhi Administration Subordinate Services. As per DASS Rules, 1967 placed at Annexure A-1, officers of DASS Grade II are entitled for promotion to the next higher level i.e. Grade I (DASS) for which a DPC is required to be convened by the Government to consider the service records of eligible officers. The promotional post of Grade I (DASS) is to be filled 100% by promotion from amongst Grade II (DASS) officers who have completed five years of regular service in the grade. The final seniority list of Grade II (DASS) officials issued by the Government vide letter dated 1.09.2009 is annexed as Annexure A-2. The total sanctioned strength of Grade I (DASS) is 1423 and out of that at least 650 posts are lying vacant. The eligible candidates were available for promotion but the DPC was not being held, as a result there was absolute stagnation at all levels of DASS cadre and promotion at all stages was virtually stopped. It was prescribed by the DoP&T vide OM dated 8.09.1998 that the DPCs should be convened at regular annual intervals to draw panels which could be utilized for making promotions against the vacancies occurring during the course of a year. DPCs should be convened every year and the ministries/departments should lay down a time schedule for good cadre management. It is also prescribed vide DoP&T OM dated 14.12.2000 that non-adherence to prescribed time frame is a serious concern and responsibility for the lapse is to be fixed. In spite of this provision, the Government of NCT of Delhi did not adhere to these instructions. The applicants made representations dated 6.10.2009 and 5.01.2010 and finally filed OA No.2379/2010. This OA was disposed of vide order dated 18.11.2010 (Annexure A-8). Thereafter, during the pendency of the Contempt Petition filed by some of the applicants, the respondents convened a DPC meeting in January, 2011 and issued impugned promotion orders dated 7.02.2011 (Annexure A-9). These orders have been challenged by the applicants in the present OA.
3. The respondents have filed their counter affidavit and clarified the position. According to them, in the earlier OA 2379/2010, the following orders were passed:
1. It is common ground that the DPC could not be held at the required time on account of the non-availability of certain record etc. This OA is disposed of, on consensual basis, with a direction to the respondents to hold the DPC within a period of one month from the date of receipt of a copy of this order.
Issue Dasti.
4. Thus, according to the respondents, the present OA is barred by the principles of constructive res judicata. The Tribunal in its order had stated that because of the fact that DPC could not be held at the required time on account of non-availability of service record and keeping in mind this, the Tribunal directed the respondents to hold the DPC within a month. Thus, no directions were given by the Tribunal to hold yearwise selections at that stage. It is also stated that once a relief claimed has not been granted, it is to be deemed to have been rejected. The earlier OA had been disposed of on consensual basis with direction to hold the DPC within a period of one month from the date of receipt of the order. The orders had been complied with and now the demand of yearwise panels and making a Select List cannot be made. It is also the case of the respondents that promotions can only be prospective and in support of this, they have relied upon guidelines as contained in DoP&T OM dated 9.04.1996, para 6.4.4 whereof reads as follows:
6.4.4 Promotions only prospective While promotions will be made in the order of the consolidated select list, such promotions will have only prospective effect even in cases where the vacancies relate to earlier year(s).
5. The respondents have also indicated that the applicants were appointed by way of direct recruitment/ promotion to Grade II (DASS) from the year 2003 onwards. The seniority list of Grade II (DASS) officials has been circulated vide letter dated 1.09.2009. The prescribed minimum qualifying service of six years is required for promotion to the post of Grade I (DASS) from Grade II (DASS) in accordance with the provisions of Recruitment Rules read with GOI, DoP&T OM dated 25.05.1998. In the seniority list issued on 1.09.2009, some junior officers had completed six years of service as Grade II DASS whereas senior officers had completed only five years of service as Grade II DASS but there is no provision in RRs also to consider senior when his junior is fulfilling the eligibility criteria earlier to him. The matter was placed before the Honble Lt. Governor to approve the following provision:
If any officer appointed to any grade of the service is considered for the purpose of promotion to the higher post, his senior would also be considered, provided that he is not short of the requisite qualifying or eligibility service by more than half of such qualifying of eligibility service or two years, whichever is less, and has successfully completed the probation period for promotion to the next higher grade along with the juniors who have already completed such qualifying or eligibility service.
6. The Honble Lt. Governor considered the matter and sought advice of the UPSC. In the meantime, OA No.2379/2010 was filed. This was followed by a Contempt Petition, which was decided by order dated 5.01.2011. It reads as follows:
MAs-30 & 31/2011 have been filed for extension of time in implementing the order of this Tribunal in OA No.2379/2010 and for condonation of delay in filing the MA. We are not convinced by the reasons set out for not holding the DPC, as agreed to, on the basis of which the order was passed. MAs are, therefore, dismissed.
Issue notice on CP-01/2011 to the respondents with a direction to file the status report regarding the present position of the availability of records and all other relevant information for holding the DPC within two weeks, failing which Shri Kailash Chand, Special Secretary (Services) will appear in person and explain as to why the DPC can not be held.
7. Accordingly the respondents held the DPC on 28.01.2011 and issued promotion orders dated 7.02.2011. Copy of the minutes of the DPC and orders dated 7.02.2011 were placed before the Tribunal on the date of hearing of the Contempt Petition No.1/2011. The following orders were passed:
Respondents have brought to our notice the minutes of the DPC held on 28.01.2011 and also the promotion order No.47 dated 07.02.2011 issued pursuant to the DPC proceedings.
In view of such development, the present C.P. does not survive. Notices issued to the respondents are hereby discharged. It is however made clear that in case the applicants are aggrieved by the aforesaid promotion order made pursuant to the DPC, it will be open for them for file a substantive OA. Accordingly, the present OA has been filed.
8. We have heard both the learned counsel and perused the record on file. We have also perused the original minutes of the DPC held on 28.01.2011.
9. It is seen that in the counter affidavit filed by them, the respondents have stated that there is a difficulty in making yearwise panels since in the zone of eligibility, some juniors have completed six years of service whereas those senior to them have completed only five years. A proposal was sent to the Honble Lt. Governor of Delhi for amending the Recruitment Rules and providing for consideration of a senior before consideration of a junior officer, if the senior is not short of the requisite qualifying or eligibility service by more than half of such qualifying of eligibility service or two years, whichever is less, and has successfully completed the probation period for promotion to the next higher grade. The advice of the UPSC had been sought. The UPSC, vide letter dated 12.04.2010, informed that the department may send a revised proposal based on revised guidelines of the DoP&T but there was difficulty in sending the same as pay scale of Grade-I DASS was not finalized. The Lt. Governor of Delhi, in exercise of powers conferred by the proviso to Article 309 of the Constitution read with Govt. of India, Ministry of Home Affairs Notification dated 13.07.1959, accorded approval in principle, to operate Non Functional Scale of Rs.8000-13500 in respect of Grade-I DASS on completion of four years of regular service and revised the pay scale of Grade II DASS to Rs.5500-9000 but the Ministry of Home Affairs, vide letter dated 9.04.2010, advised to withdraw the abovesaid pay scales. After that, Government of NCT of Delhi had constituted a Committee vide orders dated 12.05.2010. The Committee was to look into all aspects of grant of Non Functional Scale to Grade I and Grade II DASS. The report of the Committee is still awaited. The respondents have stated that when the Tribunal vide order dated 18.10.2010 in OA No.2379/2010 directed the respondents to hold the DPC within a month, the approval of the Lt. Governor was taken for insertion of the clause referred to earlier in the RRs and the DPC was held on 28.01.2011 and promotion orders issued on 7.02.2011.
10. Considering all the facts stated by the respondents, we are satisfied that looking at the circumstances of the case and with a view to implement the orders of the Tribunal dated 18.10.2010, whatever could be done was done by the respondents. In the earlier OA filed by the applicants, they had agreed to the fact that DPC would be held. After consideration of all the facts, the Tribunal had taken the decision regarding holding of DPC within a month from the receipt of the order. In view of the fact that yearwise vacancies had not been calculated and yearwise selections had not been made, a decision to hold the DPC forthwith was taken and promotion orders issued. The principle of promoting a senior person prior to junior person was also maintained.
11. We are of the opinion that the matter should be given a quietus now as promotions are effective only from prospective date and no purpose would be served now by going into the issue of yearwise panels and Select List. Accordingly, we see no reason to intervene in the matter. OA is accordingly dismissed. No costs.
( Manjulika Gautam ) ( George Paracken ) Member (A) Member (J) /dkm/