Central Administrative Tribunal - Delhi
Lalit Kumar S/O Sh. Ram Kishan vs Municipal Corporation Of Delhi on 1 August, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
OA No.1795/2011
THIS THE 1ST DAY OF AUGUST, 2012
HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. SUDHIR KUMAR, MEMBER (A)
In the matter of :-
1. Lalit Kumar S/o Sh. Ram Kishan
H.No. 1827, Ward 31,Azad Nagar,
Near Double Phatak Rohtak,
Haryana -124001
2. Deep Chand S/o Sh. Jag Mal
Village-kakroli Hathi, P.O.Kakroli Sardara
Distt. Bhiwani, Haryana 12730
3. Mukesh Kumar S/o Sh.Babu Lal
Village & Post Office Maihera,
Tehshil Charkha Dadari,
Distt. Bhiwani, Haryana 127026.
4. Bansi Lal S/o Sh. Deva Singh
VPO Gaibipur, Via-Barwala
Distt & Tehsil-Hisar, Haryana
5. Gulshan Kumar S/ Sh. Charan Dass Chauhan
H.no. 716 Ward No. 21 Kailash Colony
Rohtak Haryana -124001
6. Karam Veer S/o Sh. Daya Kishna
Village Munimpur, P.O. Bamnula Distt.
Jhajjar Haryana -124105
7. Vinod Kumar S/o Sh. Randhir Singh
VPO Kahnaur, Distt. Rohtak,
Haryana -124412
8. Ravinder S/o Sh. Rattan Singh
H.No. 11 Meham Distt. Rohtak
Haryana -124112.
Suresh Nagar S/o Sh. Mahavir Singh
Badhwana Gate, Kabir Nagar
Charkhi Dadri, Bhiwani,
Haryana, 127306
Rohtash S/o Sh. Nafe Singh
Village Katwara, ,Post Sanghi, Distt. Rohtak
(Haryana) Pin-124303
Rajesh Kumar S/o Sh. Iswar Singh
Jai Jagdamba Juice Corner,
Near Dr. Narender Sharma, Hospital,
Nai Wali Chauk, Rewari, Haryana-123401
Satya vir S/o Sh. Ram Dhari
Rz.1/223, J.Block, West Sagarpur,
New Delhi -110046
Surender S/o Sh. Daya Chand,
Rz. 22A Goptal Nagar, Najafgarh
New Delhi -110043
Sunil Dutt S/o Sh. Sher Singh
RZ-500, Gopal Nagar, Phase II,
Gate No. 26, Surakh Pur Road,
Nazafgarh, New Delhi-110043.
Ram Dass Punia S/o Sh. Prabhu Dayal
MCD Primary School, Anand Parbat-II
Delhi 110005.
Balwan Singh, S/o Sh. Ramji Lal
Nagar Nigam Prathamik Vidyalaya
J.J. Camp, Narayana-II
New Delhi-110012.
Ram Bag S/o Sh. Chatter Singh
H.No.29, Near Rice Factory DCM Gate,
Shiv Nagar Hissar Haryana -125001.
Mahan Lal S/o Sh. Tara Chand
Address: Village Hamirwas
P.O. Aggwankhurd
VIA Surajgarh, Distt. Jhunjhunu (Raj.)
Suresh Kumar S/o Sh. Thandu Ram
Badhwana Gate, Kabir Nagar, Charkhi Dadari,
Bhiwani Haryana -127306
Raj Pal Jataw S/o Sh. Parbhati Lal Jatav
MC Primary School, Raja Pur Khurd,
Delhi.
Rajesh Kumar S/o Sh. Ram Partap Singh
H.No. 381, Dani Kishan Dutt, Gali No.17
Hisar, Haryana -125001.
Bhanwar Lal Bairwa S/o Sh. Chanda Lal
VPO Jhag VIA Mozamabad Thana Phagi
The. Mazamabad Distt. Jaipur Rajasthan 303009
Poonam Toppo S/o Sh. Ignas Toppo
VPO Bara Karonja Thana Joshpur Nagar
Distt. Joshpur Nagar Chhatisgarh -496338
Ishwar Prashad Meena S/o Sh. Tulsi Ram Meena
VPO Dhingai VIA sadulpur Distt. Churu
Rajasthan 331023
Bakil Meena S/o Sh. Ram Gopal Meena
VPO Bhogepura Tehsil Mandura Distt.
Karauli (Raj) 322251.
Ram Narayan Bairwa S/o Sh. Manohar Lal Bairwa
42-A K-I Mohan Garden
UttamNagar Delhi-59
Babu Lal Meena S/o Sh. Dhanna Lal Meena
VPO Chherera Tehsil Dist. Dause
Rajasthan -303505
Hukum Chand S/o Sh. Hari Ram
VPO Jharoda, The Kosli (Rewari) Haryana 123303
Hari Pal S/o Khem Chand
Village Ghagada Post Office Bamla
Distt. Bhiwani Haryana 127021
Singara Singh S/o Shriya Ram
Village Surbara The Marwana
Distt. Jind, Haryana.
Applicants
(By advocate: Sh. H.D. Sharma)
VERSUS
Municipal Corporation of Delhi
Through its Commissioner
Town Hall Delhi
2. Delhi Subordinate Services Selection Board
Through its Secretary
Govt. of NCT of Delhi
3rd Floor, UTCS Building,
Vishwas Nagar, Shahdara,
Delhi-110032.
Respondents
(By Advocate: Sh. Rahul Singh for R.1 and Mrs. Sumedha Shama for R.2.)
ORDER(ORAL)
Mr. G. George Paracken, Member(J) The applicants are Assistant Teachers working with the respondents-Municipal Corporation of Delhi (MCD for short). They belong to Scheduled Caste/Scheduled Tribe categories. Their grievance is that even though the respondents have delayed their appointment due to pendency of some litigation regarding the eligibility of SC/ST candidates for appointment in the MCD, they have not been given the same benefits as given to the General Category candidates belonging to their batch who were given appointment on time.
2. The brief facts of this case are that on the basis of the requisition given by the respondents MCD, the Delhi Subordinate Service Selection Board (DSSSB for short) has issued an advertisement on 03.06.2002 in the leading newspapers inviting applications for the post of Assistant Teachers. The applicants had also applied for the same. They appeared in the examination held on 27.10.2002 and qualified for the aforesaid post. However, the respondent DSSSB has declared the result of only general category candidates in December, 2002. Thereafter, the Respondent-MCD has also offered appointment to them in June, 2003 and they have reported for duty, immediately thereafter. The applicants have filed one such appointment letter in respect of general category candidate, Shri Yogesh Bhardwaj, dated 27.06.2003. The candidates who belonged to the reserved category and who have been denied such appointments have filed a number of Writ Petitions in the High Court of Delhi challenging the action of the respondents. One such WP bearing number C.W.P. No. 5061/2001 Kanwar Pal and Ors. Vs. GNCT of Delhi and Anr. was decided by the Honble High Court, vide its annexure A-2 order dated 31.05.2002. By the aforesaid judgment, the High Court issued a mandamus to the respondents to appoint the petitioners therein who are born and brought up in Delhi and whose caste has been notified as a reserved caste in Delhi but the certificate issued to them was on the basis of the certificate issued to their fathers who were the migrants from other states. The respondents have challenged the aforesaid order in LPA No. 625/2002 and connected cases but the same was also dismissed vide judgment dated 13.05.2005 (annexure A-3). Thereafter, the respondents have issued offers of appointment to the petitioners therein during the period between October, 2005 to July, 2006. The applicants herein being some of those petitioners have also been given the appointment letters and accepted them and joined the posts of Assistant Teachers in the year 2006 on different dates. A copy of the appointment letter issued to one of the petitioner Shri Lalit Kumar has been annexed as Annexure A-4 with the petition. However, the respondents have not been grating them same pay as was being granted to the general candidates of their batch who have been given appointment in the year 2003. They have, therefore, made representation to the respondents to grant them also the same pay and allowances from the same dates as has been given to the general category candidates who belong to their batch. Since the respondents have not taken any action on their requests, they approached this Tribunal by this OA alleging discrimination amongst the similarly situated persons. They have also stated that they were in no way at fault for their delayed appointment and once the respondents have appointed them, they should be given equal treatment with the similarly placed candidates who belong to the general category.
3. The respondents No.1 has filed its reply. It has not denied the factual statements made by the applicants in the OA. However, it has stated that the written examination for the post of Assistant Teacher (Primary) in MCD was held on 27.10.2002. Out of them, only the results of 246 candidates who belonged to the unreserved category were declared on 27.12.2012 and those candidates were provisionally selected and appointed. The results of the candidates belong to SC/ST categories were kept pending in view of the fact that LPA No.625/2002 and connected cases (supra) was pending before the Honble High Court of Delhi but in the aforesaid LPA, they were also declared later on the basis of the judgment dated 13.05.2002 and those candidates including the applicants have also been given appointment. However, according to them, since the applicants were appointed only in the year 2006 they are not entitled for any increments from the year 2003, that is the year in which the general category candidates belonging to their batch have been appointed. They have also submitted that the applicants cannot claim seniority in the cadre of Assistant Teacher (Primary) when they were not even born in that cadre.
4. They have also relied upon the judgment of this Tribunal in OA No.2133/2010-Hemlata Singh Vs. Commissioner, MCD and Ors. The applicant in the said case had applied for the post of Assistant Teacher (Primary) under the OBC category in MCD, NDMC and GNCTD pursuant to the advertisement issued by the DSSSB in June, 1998. The cut ofF date for submitting the caste certificate was 20.06.1998 on that date the applicant therein did not submit the requisite certificate. On that ground the applicant was denied appointment by the respondents. However, she challenged the aforesaid decision of the respondents before the Honble High Court of Delhi in WP(C) 6357/1999. On the direction of the Single Judge of the Honble High Court, the case of the applicant was examined but the same was rejected. Again, the applicant challenged the rejection of her candidature in WP(C) 8732/2006 which was allowed vide judgment dated 02.08.2007 with the direction to the DSSSB to forward her name to MCD within four weeks for appointment to the post of Primary Teacher against the earliest available vacancy in the said post. However, the applicant claimed seniority and increments from the year 1998 but the respondents took the stand that the High Court vide its judgment dated 02.08.2007 directed the MCD to give appointment to the applicant as Assistant Teacher (Primary) against the earliest available vacancy in the said post. Therefore, they were not bound to give any appointment to the applicant from a previous date.
5. We have heard the learned counsel for the applicant, Sh. H.D. Sharma and the learned counsel for the respondents Sh. Rahul Singh and Mrs. Sumedha Sharma. The undisputed fact in this case is that the DSSSB had advertised 2195 vacancies (consisting 421 vacancies for UR candidates, 465 vacancies for OBC candidates, 647 vacancies for SC candidates and 662 vacancies for ST candidates). The applicants have qualified the competitive examination and they have been included in the merit list. But the DSSSB has declared the result of only 246 UR candidates who have qualified the examination vide its order dated 27.12.2002 and withheld the results of the SC/ST categories only on the ground that the dispute regarding their eligibility to get appointment was pending before the High Court of Delhi. However, the aforesaid dispute was settled by the Honble High Court in favour of the SC/ST candidates vide its judgment dated 13.05.2005 referred above. It was thereafter that the applicants who belonged to the SC/ST categories have been given appointment in the MCD.
6. It is a well settled law that the seniority of the employees depends upon their respective positions in the merit list, which is common to all. The candidates who are appointed in terms of an earlier merit list will be treated enblock senior to the candidates who have been appointed on the basis of the merit list of a subsequent selection. However, the fact of the matter in the present case is that the applicants who belonged to the SC/ST category could not be appointed along with the general category candidates not because of any of their fault, rather it is also not because of any fault of the respondents. It was only due to the pendency of dispute before the Honble High Court regarding the eligibility of the SC/ST candidates for appointment in the MCD, NDMC and GNCT of Delhi etc., which was beyond the control of both parties. Once that dispute has been settled in favaour of the applicants, the applicants should not be visited with any other adverse effects in their career. However, it is also a fact that the applicants have not worked from the date their counterparts belonging to the general category candidates who have been given appointment earlier have been working. Therefore, they cannot claim any salary and allowances for the period they have not worked but in all other respect they have to be treated at par with the general category candidates who secured their appointment earlier.
7. It is also a well settled position of law that because of the mere pendency of a case in a Court of Law, no litigant, whether the petitioner or the respondent, can BE deprived of any benefit unless otherwise ordered by the court itself. As a corollary of the said principle, no person needs to suffer for the act of the Court and in case an interim order has been passed, the petitioner can take advantage thereof. Rather, in such cases law permits promotion with retrospective effect. The aforesaid position of law has clearly been laid by the Apex Court in Kalabharati Advertising versus Hemant Vimalnath Narichania & others 2010 (9) SCC 437 and Amarjeet Singh & others versus Devi Ratan & Others 2010 (1) SCC 417. In Kalabharati Advertising (supra), the Apex Court has held as under :-
15. No litigant can derive any benefit from the mere pendency of a case in a Court of Law, as the interim order always merges into the final order to be passed in the case and if the case is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrongs by getting an interim order and thereafter blame the Court. The fact that the case is found, ultimately, devoid of any merit, or the party withdrew the writ petition, shows that a frivolous writ petition had been filed. The maxim "Actus Curiae neminem gravabit", which means that the act of the Court shall prejudice no-one, becomes applicable in such a case. In such a situation the Court is under an obligation to undo the wrong done to a party by the act of the Court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralised, as the institution of litigation cannot be permitted to confer any advantage on a party by the delayed action of the Court. (vide: Dr. A.R. Sircar v. State of Uttar Pradesh & Ors., 1993 Supp. (2) SCC 734; Shiv Shanker & Ors. v. Board of Directors, Uttar Pradesh State Road Transport Corporation & Anr., 1995 Supp. (2) SCC 726; the Committee of Management, Arya Inter College, Arya Nagar, Kanpur & Anr. v. Sree Kumar Tiwary & Anr., AIR 1997 SC 3071; GTC Industries Ltd. v. Union of India & Ors., AIR 1998 SC 1566; and Jaipur Municipal Corporation v. C.L. Mishra, (2005) 8 SCC 423).
8. Again in Amarjeet Singh & Others, the Apex Court has held as under :-
26. There is another aspect of the matter. The appellants and the respondents have been considered by the DPC held on 19.12.1998 to fill up 42 vacancies under the unamended rules. However, at the cost of repetition, it may be pertinent to mention here that only 30 candidates/appellants were found suitable by the DPC held on 19.12.1998 and had been promoted, under the unamended Rules on the criterion of "merit". The respondents had been promoted under the amended rules by carrying forward 12 vacancies, by another DPC held subsequently on 22.1.1999 on different criterion, i.e., "Seniority subject to rejection being unfit". Indisputably, these 12 officers/respondents were found unsuitable for promotion under the unamended rules by the DPC held on 19.12.1998. Subsequent thereto, both set of officers had been promoted notionally from the back dates. The appellants had been given promotions as AEC against the vacancies for the year 1994-95 while the respondents were given notional promotions against the vacancies for the years 1996 and 1997. The seniority list dated 12.7.2000 was prepared accordingly. As the appellants had been given notional promotion w.e.f. 6.12.1995 and the respondents w.e.f. 28.2.1997 and 13.8.1997, their inter se seniority had rightly been determined while issuing seniority list dated 12.7.2000.
9. In the above facts and circumstances of the case, we allow this OA with the direction to the respondents to grant notional seniority to the applicant as per their respective positions in the merit list prepared by the DSSSB in the year 2002. They shall also be given appointments on notional basis from the dates the first general category official has joined duty. Consequently, they will be entitled for notional increments and fixation of pay and other benefits like GPF, Pension, etc. as admissible to their batch mates belonging to the unreserved category. The respondents shall pass appropriate orders in this regard within two months from the date of receipt of a copy of this order. There shall be no order as to costs.
( Sudhir Kumar ) ( G. George Paracken ) Member(A) Member (J) vb