Delhi District Court
Sh. Brijesh Chaturvedi vs . Association Of State Road Transport ... on 16 August, 2018
Suit No. 26017/16 Page 1 of 17
IN THE COURT OF DR. JAGMINDER SINGH
JSCC-cum-ADDITIONAL SENIOR CIVIL JUDGE
cum-GUARDIAN JUDGE, DWARKA COURTS, DELHI
Suit No. : 26017/16
In the matter of :
1) Sh.Brijesh Chaturvedi,
W/o Sh.Manoj Chaturvedi,
R/o O.4/B-4, Dilshad Garden,
Delhi-95.
........Plaintif
Versus
1) Association of State Road
Transport Undertakings,
ARSTU Bhawan, Plot No.4A,
Sector-8, Dwarka,
New Delhi-75.
Through Its Executive Director/
Principal Officer.
......Defendant
Date of institution of the suit : 22.11.2011
Judgment Reserved on : Not Reserved
Date of Judgment : 16/08/2018
Final Decision : DISMISSED
SUIT FOR MANDATORY INJUNCTION
Sh. Brijesh Chaturvedi Vs. Association of State Road Transport Undertakings
Suit No. 26017/16 Page 2 of 17
JUDGMENT :-
1. This is a suit for mandatory injunction.
2. Brief facts necessary for the disposal of the present suit as mentioned in the plaint are that plaintiff was employed as temporary junior clerk by the defendant vide order dated 22/08/1983 and subsequently she was regularized in her service. As per the roster of Service- Seniority of the defendant dated 26/08/2005, the plaintiff was at Sr. No.8. Vide order No.ASRTU/ADMN./5162, Dated:
31/10/2005, her junior Sh.Naresh Kumar was promoted to the post of Asstt. Superintendent by superseding the plaintiff. When plaintiff protested and objected the promotion of her junior by superseding her, the defendant had not given any reasonable reply. Again vide order No.ASRTU/ADMN./0185/047, dated: 30/07/2010, one Mukesh Kumar Sharma Sr. Asstt. was promoted to the post of Asstt. Superintendent who was also junior to the plaintiff, in violation of the relevant rules & regulations. Sh. Brijesh Chaturvedi Vs. Association of State Road Transport Undertakings Suit No. 26017/16 Page 3 of 17
3. Thereafter, plaintiff had filed a writ petition (C) No.6077/2010 against defendant no.1 before Hon'ble High Court of Delhi. During pendency of the said writ, the plaintiff was promoted to the post of Asstt. Superintendent vide order No.ASRTU/ADMN./2010/068, dated: September, 15/2010 w.e.f. 13/09/2010 instead of 31/10/2005. Thereafter, the said writ was dismissed as withdrawn with permission to file afresh. The plaintiff had again filed a writ petition before the Hon'ble High Court of Delhi seeking direction to the defendant to promote the plaintiff w.e.f. from 31/10/2005, however, same was also dismissed as withdrawn by the Hon'ble High Court of Delhi by holding that the writ petition is not proper remedy to the plaintiff for relief prayed. Hence, the present suit is filed seeking mandatory injunction directing the defendant to promote the plaintiff w.e.f. 31/10/2005 to the post of Asstt. Supdt., when her Junior Sh.Naresh Kumar was promoted to said post, as per seniority of plaintiff with back wages, service benefits & benefits of recommendations of pay commissions Sh. Brijesh Chaturvedi Vs. Association of State Road Transport Undertakings Suit No. 26017/16 Page 4 of 17 etc. along with payment of arrears to the plaintiff.
4. On the suit of the plaintiff, summons were issued to the defendant. Written statement has been filed by the defendant opposing the plaintiff's suit. Preliminary objections are raised that suit is bad due to non-joinder of necessary parties i.e. Sh.Naresh Kumar & Sh.Mukesh Kumar, the plaintiff has concealed material facts, the plaintiff had not approached the Court with clean hands. In para wise reply, it has been submitted on behalf of defendants in WS that a departmental promotion committee (DPC) was constituted in year 2005 for considering the case of Group-C employees for their promotion. The broad criteria for promotion which was approved by the competent authority is as under :-
Parameter Weightage (Marks) Seniority 40 ACRs 15 Written Test 30 Computer Literacy 05 Interview 10 Sh. Brijesh Chaturvedi Vs. Association of State Road Transport Undertakings Suit No. 26017/16 Page 5 of 17
--------------------------------------------------------------------------------- Total 100
--------------------------------------------------------------------------------
5. The selection committee which was constituted by the Executive Director, ASRTU considered the cases of all eligible group-C officials including the plaintiff in the light of the aforesaid criteria/parameters against 6 available vacancies of Asstt. Supdt. In the merit list drawn by the selection committee, the plaintiff secured 12 th position and Sh.Naresh Kumar secured 8th position. Hence, promotion to Sh.Naresh Kumar was given as per his ranking in merit list. It has been further mentioned in the WS that the defendant undertaking is having its own service rules & regulations as mentioned in the 'ASRTU/CIRT Service Regulations, 1993, Vol.-1' and 'ASRTU/CIRT Service Regulations, 2001.' As per the rules & regulations, the executive committee is empowered to frame policies, staff regulations, to appoint and dismiss servants/employees and to fix their wages etc. As per the relevant service regulations, the qualifications for the post of Asstt. Supdt. by promotion from UDC are that he Sh. Brijesh Chaturvedi Vs. Association of State Road Transport Undertakings Suit No. 26017/16 Page 6 of 17 should have worked for 5 years as UDC and he must be a graduate. The promotions to the post of Asstt. Supdt. were made on the basis of resolution approved by the Executive Committee in its 110th meeting held on 29/04/2005, whereby it was decided that promotion to the higher grade scale would be selection based on merit and suitability where seniority will be one of the criteria but not the sole criteria. It was further mentioned in the WS that the plaintiff was promoted on the same DPC Selection List on the basis of her ranking in the said merit list, when further vacancy arose on the promotional post and therefore, she cannot get promotion from a date on which Sh.Naresh Kumar or Sh.Mukesh Sharma got promotions based upon their ranking in the merit list vis-a-vis availability of vacancies.
6. In replication to the WS, the plaintiff reiterated the version of her plaint. The plaintiff denied the allegations that suit is bad for non-joinder of necessary parties as she had not claimed any relief against any other party than the defendant.
Sh. Brijesh Chaturvedi Vs. Association of State Road Transport Undertakings Suit No. 26017/16 Page 7 of 17
7. On the basis of the pleadings of both the parties, the following three issues were framed :-
(i) Whether the suit is bad on account of non-joinder of necessary parties? OPD.
(ii) Whether the plaintiff is entitled for the decree of mandatory injunction, as prayed for? OPP.
(iii) Relief.
8. Thereafter, the matter was fixed for plaintiff's evidence and plaintiff examined two witnesses.
9. PW1 Smt.Brijesh Chaturvedi tendered her affidavit Ex.PW1/A in her evidence and she had relied upon the documents i.e. Ex.PW1/1 to Ex.PW1/9 and PW2 Sh.Manoj Chaturvedi tendered his affidavit Ex.PW2/A in his evidence. Thereafter, plaintiff's evidence was closed.
10. Defendant examined only one witness as DW1 Sh.Prashant Kumar Samal who tendered his affidavit Ex.DW1/A in his evidence and he relied upon the documents Ex.DW1/1 to Ex.DW1/8. In his statement, he further de- exhibited the documents i.e. Ex.DW1/4, DW1/6 & DW1/7 and DW1/8 being the photocopies.
Sh. Brijesh Chaturvedi Vs. Association of State Road Transport Undertakings Suit No. 26017/16 Page 8 of 17
11. Thereafter, defendant's evidence was closed and matter was fixed for final arguments.
12. Final arguments heard. Ld. Counsel for plaintiff argued that the plaintiff was deliberately denied her promotion to the post of Asstt. Supdt. w.e.f. 31/10/2005 by the defendants and other officials Junior to her were promoted by superseding her seniority in violation of relevant rules & regulations. On the other hand, Ld. Counsel for defendants argued that no any promotion was done in arbitrary manner. The plaintiff was given promotion w.e.f. 13/09/2010 as per her seniority and suitability. She was not given promotion w.e.f. 31/10/2005 as at that time, her rank in the merit list of promotion was below from the other officials who were given the promotions.
13. I have considered the submissions of both parties and perused the record. The first issue was framed that whether the suit is bad for non-joinder of necessary parties. Onus of proving of this issue is upon the defendant. In WS, defendant raised this issue in preliminary objection stating Sh. Brijesh Chaturvedi Vs. Association of State Road Transport Undertakings Suit No. 26017/16 Page 9 of 17 that the plaintiff is seeking a relief in the form of her promotion with retrospective effect i.e. from the date of promotion of her juniors namely Sh.Mukesh Sharma and Sh.Naresh Kumar along with seniority over them. It is true that Sh.Mukesh Sharma & Sh.Naresh Kumar are not parties of this suit. However, as per the prayer clause of the plaint, the plaintiff had not sought the relief of seniority over Sh. Naresh Kumar & Sh.Mukesh Sharma. The plaintiff had sought relief regarding her promotion to the post of Asstt. Superintendent w.e.f. 31.10.2005 when her junior Sh.Naresh Kumar was promoted to said post along with other relevant service benefits. The plaintiff had not sought any relief against either Sh.Mukesh Sharma or Sh.Naresh Kumar. During evidence also, the defendant could not prove that the plaintiff had sought any relief against Sh.Mukesh Sharma or Sh.Naresh Kumar. The defendant also failed to prove that without making the aforesaid persons parties in the suit, the suit cannot be properly decided. Therefore, in view of the facts & circumstances and documents placed on Sh. Brijesh Chaturvedi Vs. Association of State Road Transport Undertakings Suit No. 26017/16 Page 10 of 17 record, issue no.1 is decided in favour of the plaintiff and against the defendant.
14. Issue no.2 is that whether the plaintiff is entitled for relief of mandatory injunction in her favour and against the defendant, thereby directing the defendant to promote her w.e.f. 31.10.2005 to the post of Asstt. Superintendent i.e. the date when her junior Sh.Naresh Kumar was promoted to the said post along with other service benefits. It is admitted fact, as not denied by the defendant in WS, that vide office order no. ASRTU/ADMN./5162, Dated:
31/10/2005, Sh.Naresh Kumar was promoted to the post of Asstt. Superintendent who was junior as per seniority list from the plaintiff. According to the facts mentioned in the WS, Sh.Naresh Kumar secured 8th rank against the plaintiff who secured 12th rank in their overall performance in the procedure laid down by selection committee for promotion including written test. As per the contentions of the plaintiff, the alleged criteria for promotion made by the defendant was against the relevant rules and regulations and she was Sh. Brijesh Chaturvedi Vs. Association of State Road Transport Undertakings Suit No. 26017/16 Page 11 of 17 denied the promotion from 31.10.2005 on arbitrary grounds. Therefore, it is upon the plaintiff to prove that the promotion criteria in question was illegal, arbitrary or against the rules and regulations and thereby she was, denied the promotion from 31.10.2005 without any reason.
15. During evidence, PW1 placed on record seniority list dated 26.08.2005 Ex.PW1/1, according to which name of the plaintiff is at Sr. No.8 and as per Ex.PW1/3D, the written test & interview was held on 30.08.2005 & 31.08.2005 respectively. Thereafter, as per Ex.DW1/5 i.e. ranking list for promotion of Senior Asstt. to Asstt. Superintendent prepared on the basis of written test in question, the rank of the plaintiff is shown as 12th. According to the plaintiff, the written test on the basis of her rank was shown as 12 th and she was denied the promotion, was not approved by the competent authority and it was against relevant rules & regulations. In the WS, it is admitted by the defendant that as per the ASRTU/CIRT Service Regulation, 1993, Volume-I, Page-73, criteria for promotion to the post of Asstt. Sh. Brijesh Chaturvedi Vs. Association of State Road Transport Undertakings Suit No. 26017/16 Page 12 of 17 Superintendent is that, a) he should have work for 5 years as UDC and b) he must be a graduate. It is admitted fact that plaintiff fulfills the both conditions. However, the promotion list in question through which plaintiff was not given promotion due to lower rank was made on the basis of the merit prepared through the written test.
16. During evidence of DW1, a document Ex.DW1/3 (Colly) is placed on record on behalf of defendant, according to which Executive Director of the defendant had constituted a committee comprising of one chairman and two members in which criteria/parameter for promotion was clarified. Five parameters i.e. Seniority (40 marks), ACRs (15 marks), Written Test (30 marks), Computer Literacy (5 marks) & Interview (10 marks) were formulated to select a candidate for promotion. Minutes of meeting regarding these parameters of the selection committee Ex.DW1/3 (Colly) is also placed on record, in which each of the parameter was discussed in detail. In response to the contention of the plaintiff that the said criteria of written Sh. Brijesh Chaturvedi Vs. Association of State Road Transport Undertakings Suit No. 26017/16 Page 13 of 17 test was prepared by the defendant without any approval of competent authority, the defendant had placed on record document Ex.PW1/4 during evidence of PW1 which is Agenda and Notes for the 110th meeting of the Executive Committee of ASRTU dated 29.04.2005. In its item no. 110.7.0 (4), it was resolved that, promotions to the higher grades would be through selection based on merit and suitability, where seniority will be one of the criteria but not the sole criteria. Therefore, it is clear that although in ASRTU/CIRT Service Regulation, 1993, there is no mention of word 'Merit & Suitability' but through 110th meeting of executive committee of the ASRTU dated 29.04.2005, this criteria was inserted for the purpose of promotion. Moreover, it is clear from the criteria prepared by the selection committee Ex.DW1/3 that the written test is not the only parameter for promotion but other parameters i.e. Seniority, ACRs, Computer Literacy & Interview are also considered. Seniority is given maximum weightage i.e. 40 marks. Although plaintiff was at Sr. No.8 as per General Sh. Brijesh Chaturvedi Vs. Association of State Road Transport Undertakings Suit No. 26017/16 Page 14 of 17 Seniority List dated 26.08.2005 but she had secured 12 th rank by obtaining 57.52 marks out of total 100 marks of the promotion criteria test.
17. During statement as PW1, the plaintiff herself had given contradictory statement. During cross- examination, first she had stated that no examination have been conducted for promotion of any of the employees, whereas in answer to another question, she had admitted that she had appeared in the departmental test conducted in year 2005. Then again at one place, she had stated that she was not informed with respect to the criteria fixed for promotion. Whereas in her further cross-examination, she had admitted that a circular was issued in respect of the departmental test prior to the test. Moreover, in a letter written by her (plaintiff) to the President, ASRTU Ex.PW1/3D, she had discussed in detail the parameters/criteria of the test along with marks prescribed for each parameter. This letter is having date 24.08.2005 which reflects that the plaintiff was duly informed about the details of criteria of the Sh. Brijesh Chaturvedi Vs. Association of State Road Transport Undertakings Suit No. 26017/16 Page 15 of 17 examination prior to the date of examination i.e. 30.08.2005. PW1 further admitted in her cross-examination that the decision with respect to the promotion was taken by the director of ASRTU and Management Committee and interview was taken by a board which also comprised of Under Secretary, Ministry of Surface Transport, Govt. of India. It is further stated by PW1 that her husband had also given departmental test in year 2005 and he was given promotion after the departmental test.
18. PW2 i.e. husband of the plaintiff when appeared before the Court, supported the version of defendant and in his cross-examination, he had stated that in year 2005, he had appeared in the selection test conducted by the department and got promoted. He had further stated that on the basis of Govt. Notification duly approved, he got promoted. PW2 further clarified in his cross-examination that the selection test conducted in year 2005 was for Senior Assistant/Asstt. Superintender/Superintendent only and around all Junior Clerk/Senior Clerk/Asstt. Sh. Brijesh Chaturvedi Vs. Association of State Road Transport Undertakings Suit No. 26017/16 Page 16 of 17 Superintendent participated in the said test, and there was a criteria of totalling 100 marks. He had also admitted that his wife/plaintiff had participated in the said test for the post of Asstt. Superintendent, however, according to him, she had participated in the test on the verbal assurance regarding her promotion given by the then Director Sh. P.S. Shrimali, however no such fact is mentioned by plaintiff in her plaint.
19. In view of the aforesaid discussion, Court comes at the conclusion that the plaintiff had failed to prove on record that the criteria in question fixed by the defendant for promotion including written test was against the relevant rules & regulations or the plaintiff was denied the promotion w.e.f. 31.10.2005 in an arbitrary manner and without any reason. The plaintiff had failed to make a prima-facie case in her favour regarding her prayer seeking mandatory injunction to the defendant to promote her w.e.f. 31.10.2005. On the other hand, the defendant had successfully established its defence that the plaintiff was Sh. Brijesh Chaturvedi Vs. Association of State Road Transport Undertakings Suit No. 26017/16 Page 17 of 17 denied promotion w.e.f. 31.10.2005 due to her low rank in the concerned criteria/parameter fixed by the defendant for the promotion. Accordingly, issue no. (ii) is decided against the plaintiff and in favour of the defendant.
20. Relief: Suit of the is dismissed.
21. No order as to costs
22. Decree sheet be prepared.
23. File be consigned to record room after due compliance.
Announced in the open court Digitally signed
by JAGMINDER
on this 16th day of August, 2018 SINGH
JAGMINDER
Date:
SINGH 2018.08.16
16:26:14
+0530
(DR. JAGMINDER SINGH)
JSCC-ASCJ-cum-Guardian Judge,
Dwarka Courts : Delhi
Note: This judgment is having Seventeen pages and each page is bearing my signatures.
(DR. JAGMINDER SINGH) JSCC-ASCJ-cum-Guardian Judge, Dwarka Courts : Delhi Sh. Brijesh Chaturvedi Vs. Association of State Road Transport Undertakings