Central Administrative Tribunal - Delhi
Kanwar Singh S/O Rati Ram vs The Director on 25 February, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
CP No.291/2013 &
OA No.659/2013
MA No.1014/2013
MA No.1999/2013
Reserved on: 21.08.2013
Pronounced on: 25.02.2014
Honble Shri Sudhir Kumar, Member (A)
Honble Shri A.K. Bhardwaj, Member (J)
OA No.659/2013
Kanwar Singh S/o Rati Ram,
R/o Flat No.C-48, Z1,
Dilshad Garden, Delhi. Applicant.
(By Advocate: Shri Rajeev Sharma)
Versus
1. The Director, Local Bodies,
Govt. of NCT of Delhi, 9th Level,
C Wing, Delhi Secretariat, New Delhi.
2. The Commissioner,
North Municipal Corporation of Delhi,
Dr.S.P.Mukherjee Civil Centre,
J.L.N.Marg, Minto Road, New Delhi.
3. The Commissioner,
South Municipal Corporation of Delhi,
Dr.S.P.Mukherjee Civil Centre,
J.L.N.Marg, Minto Road, New Delhi.
4. The Commissioner,
East Municipal Corporation of Delhi,
Udyog Sadan, 419, Patparganj,
Industrial Area, Delhi-110092.
5. U.P.S.C.,
Through its Secretary,
UPSC, Shahjahan Road,
New Delhi. Respondents.
(By Advocate: Ms.Alka Sharma, Ms.Sangeeta Rai,
Shri Rajender Khatter & Shri R.K.Jain)
CP No. 291/2013
Kanwar Singh S/o Rati Ram,
R/o Flat No.C-48, Z1,
Dilshad Garden, Delhi. Applicant.
(By Advocate: Shri Rajeev Sharma)
Versus
1. Shri Manish Gupta
Commissioner, South,
Delhi Municipal Corporation
2. Shri B.N. Singh,
Director (Personal)
Centre Establishment Department, South,
Delhi Municipal Corporation -Contemnor
(By Advocate: Ms.Alka Sharma, Ms.Sangeeta Rai,
Shri Rajender Khatter & Shri R.K.Jain)
ORDER
Per Mr.Sudhir Kumar, Member (A):
In this particular case, the OA No.659/2013, the Contempt Petition No.291/2013, arising in terms of the order dated 05.03.2013 passed allowing the MA No.600/2013 which had been filed in the OA, and the MA No.1014/2013, & the MA No.1999/2013, were heard and reserved for orders together, and, therefore, they are being disposed of through a common order, separately dealing with the cases concerned.
2. MA No.1014/2013 had been filed on behalf of the Respondent No.3, praying for vacation of the interim directions dated 05.03.2013. On the other hand, MA No.1999/2013 had been filed by the applicant seeking a direction upon the respondents to grant the same benefit to him, as had been given to Shri Jas Ram Kaim, as he is also a similarly situated person. But we have to examine the facts of the OA first.
OA No.659/20133. This OA has been filed by the applicant, who was posted as Additional Director (Education), on current duty charge basis, with the East Municipal Corporation of Delhi (EMCD for short).
4. The genesis of this case lies in the earlier OA 3913/2010, filed by the present applicant, which was disposed of by this Tribunal on 05.01.2012, along with OA No.3912/2010, filed by one Shri Jas Ram Kaim, whose name has been mentioned by the applicant in the MA No.1999/2013. The order finally passed in that OA has been produced by the applicant through Annexure A-2. Facts of the present OA may be borrowed from the common order passed in those two OAs, in which also the facts had been extracted from OA No.3913/2010, filed by the present applicant himself. Paras 2 to 5 of the order in those OAs were as follows:
2. The applicant, earlier in point of time, filed OA No. 1731/2009, which came to be disposed of with OA No.1730/2009 vide common order dated 26.02.2010. He sought regularization in the post of Senior Inspector of Schools (Science), later re-designated as Assistant Education Officer (AEO) (Science), to which he was promoted on ad hoc basis from 11.08.1997. He was also promoted to the post of Deputy Education Officer (DEO) on ad hoc basis. It was his grievance that two AEOs from Physical Education stream had been promoted on regular basis, and further proposals had been sent by the respondent-Corporation for regularization of AEOs of General and Physical streams, but no such action had been taken for Science stream. The reason why the applicant was given only ad hoc promotion and was not being considered for regular promotion, was that the rules governing appointment and promotion of the post of the applicant were yet to be amended. The rules as regards AEO (Science) were finalized in 1999, which were approved by the Corporation on 20.09.1999, vide resolution number 217. The rules were even approved by UPSC and had been sent to the Department of Urban Development, Government of NCT of Delhi, for notification, but no notification had been issued by the time the OA came to be filed. As regards, promotion of the applicant on the post of DEO (Science), once again, no regular promotion was being given to him, even though he was promoted on the said post on ad hoc basis on 08.04.2004, for the reason that although recruitment rules for the post of DEO had been finalized by the respondent on 31.01.1997, but the same were pending before UPSC for approval. The plea raised by the applicant was that he could not be continued to occupy the post on ad hoc basis, and if the only hurdle in his way was that the rules had not been notified, this Tribunal should command the respondents to finalize and notify the same so that he could be given regular promotion, and then aspire to go to the higher echelons of the service. Learned counsel representing the applicant urged that the applicant had been working on ad hoc basis for the past 14 years, and could not be indefinitely continued on ad hoc basis as AEO and DEO. It was further urged that vacancies were in existence in 1996 and the fact that the applicant continued to work as AEO, without any break for eight long years, would show that there was a requirement of the post, and it was not a mere stop-gap arrangement; similarly, he had been working as DEO (Science) also since 2004, but again on ad hoc basis, and that he could not be punished for inaction on the part of the respondent in not notifying the recruitment rules, after approval by the Corporation in 1997. Rules pertaining to AEO had been approved by UPSC almost a decade back, but were yet to be notified. Recruitment rules for the post of DEO were pending for approval for nearly 13 years, and it was the case of the applicant that the respondent could not be justified in keeping the applicant in a state of suspended animation, because of the flagrant negligence on the part of the respondent in not taking any action to notify the recruitment rules. It was further urged that while the respondent-MCD had started the process of regularizing the services of AEO (Physical) and AEO (General) since June, 2008, as could be seen from the office memorandum dated 04.08.2008, no action was being taken to regularize the services of the applicant, and that would be discriminatory. It was also urged that the applicant was promoted on the post of AEO (Science) as per rules by the competent authority, on which post he continuously worked for eight years, even though on ad hoc basis, and, therefore, he should be regularized on that post from the date of his ad hoc promotion. The only plea raised on behalf of the respondent was that the applicant could not be promoted on regular basis in absence of notified recruitment rules, and that sincere efforts were being made to notify the recruitment rules of AEO (Science), so that services of the applicant could be regularized. It was, however, stated that the regular promotion would not be from retrospective effect. Taking into consideration the rival contentions of the learned counsel representing the parties, we observed, thus:
11. Some facts stand out in the case. It is not disputed that the Applicant is working as AEO since 3.07.1996 on the regular post of AEO (Science). The Recruitment Rules for the post had been approved by the Corporation in 1999 and concurred in by the UPSC in 2000. These were admittedly sent to the Department of Urban Development of the Government of NCT of Delhi in 2000. If these have not been notified in a decade, it speaks volumes for utter indifference of the concerned mandarins of the Respondent-MCD. The question, which immediately springs to mind is that if the Respondent continues its policy of masterly inactivity, should the Applicant just suffer in silence? We are of the considered opinion that the Respondents continuing the frustrating inactivity would be in clear violation of the principles of natural justice.
Placing reliance upon the judgment of the Honble Supreme Court in Maneka Gandhi v Union of India [(1978) 1 SCC 248], we further observed as follows:
The Respondent has been palpably unfair to the Applicant. The right for consideration for promotion is held to be a fundamental right by the Honourable Supreme Court [See Delhi Jal Board V. Mahinder Singh, (2000) 7 SCC 210 and Ajit Singh and others V. The State of Punjab and others, AIR 1999 SC 3471]. The Respondent has clearly thwarted the prospects of the Applicants consideration by its inexcusable inaction, which borders on callousness. Operative part of the order reads as follows:
13. The Recruitment Rules for the post of DEO (Science) have not yet been approved by the UPSC, though these had also been approved by the Corporation in 1997. Concurrence of UPSC is necessary for promotion to the post of DEO. It is a settled proposition of law that in such cases, service of an ad hoc employee can only be regularized from the date on which UPSCs concurrence has been received (See Union of India V. P. Srinivasulu, SLP No.10714/93 against the order of this Tribunal in OA number 1603/87 decided on 18.03.1993 and Jogla Paswan V. Union of India, OA number 1060/2007, decided on 18.07.2008). We, therefore, direct the Respondent-MCD to ensure the notification of the Recruitment Rules, as approved by the UPSC, and consider the regularization of the Applicant, as per the approved rules, to the post of DEO (Science), within six months of the receipt of the certified copy of this order.
14. The OA is thus partly allowed as per the directions given above. There will be no orders as to costs. Even though, the relief as indicated above was given to the applicant, he felt aggrieved, as in his view, the Tribunal had given only partial relief to him. That being so, he filed a writ petition bearing WP(C) No.6265/2010 in the High Court of Delhi, which was disposed of on 16.09.2010 by recording the following order:
1. Learned counsel for the petitioners states that the mandamus issued by the Tribunal has not been complied with within the time granted by the Tribunal and thus today a fresh cause of action has accrued to the petitioners to predicate the claim under the RRs as exists today and are in force as also under the proposed Recruitment Rules which were to be brought in force within 6 months of 26.02.2010.
2. Counsel states that in that view of the matter the petitioners be given liberty to withdraw the writ petitions with a clarification that the new right which has come into force in favour of the petitioners would afford a fresh action before the Tribunal.
3. Needless to state the petitioners would be entitled to be considered for promotion under the Recruitment Rules which were finalized and were in force when the petitioners approached the Tribunal. Alternatively they would be entitled to stake a claim under the mandamus issued by the Tribunal.
4. The Tribunal would adjudicate upon the issue if fresh Original Application is filed.
5. Liberty granted to withdraw the writ petition.
6. Dismissed as not pressed.
3. In the present case, the claim of the applicant is that under existing recruitment rules, he ought to have been given regular promotion. A direction has thus been sought to be issued to the respondents to regularize his services on the post of Senior School Inspector (Science), now re-designated as Assistant Education Officer (AEEO) (Science) from 04.07.1996, as also to regularize him on the post of Deputy Education Officer (DEO) since the year 2004, when on the said post he came to be given only ad hoc promotion. It is urged that despite the fact that almost a period of two years has gone by when mandamus came to be issued by this Tribunal to the respondent Corporation to notify the rules, but nothing in that regard has been done. We may mention here that the respondents earlier in point of time filed an application seeking clarification of the order, which was dismissed. Recently, the application seeking review of our order recorded in the OAs aforesaid has also been dismissed. The applicant has been permitted vide orders passed by the Honble High Court dated 16.09.2010 for his consideration for promotion under the existing recruitment rules, which had since already been finalized and were in force. It is not in dispute that rules for both the posts are in existence. Vide notification dated 18.02.1974, the respondent Corporation had made regulations under section 98 of its resolution number 669 dated 25.09.1973 in connection with recruitment to the post of Senior School Inspector (Science), which were approved by the Lt. Governor in pursuance of the provisions of sub-section (2) of section 40 of the Delhi Municipal Corporation Act, read with the Government of India, Ministry of Home Affairs notification dated 19.10.1966. The post of Senior School Inspector (Science), now re-designated as Assistant Education Officer (AEO) (Science), is to be filled by promotion as well, for which one has to be a School Inspector with three years service in the grade, having B.Sc. degree and degree in teaching education. Vide yet another notification the Corporation made regulation under section 98 of the DMC Act for the post of Deputy Education Officer (DEO). AEOs with three years service in the grade rendered after appointment thereto on regular basis, are eligible for promotion to the post of DEO. The only plea raised on behalf of the respondent is that since the recruitment rules are to be notified, for which resolutions have been passed and only notification has not been issued, the applicant cannot be given regular promotion. We do not find any merit whatsoever in the only plea raised by the respondents in contesting the cause of the applicant. It is too well settled a proposition of law that appointments and promotions are to be governed by existing recruitment rules, and once such rules and regulations are in position, the respondent cannot wait indefinitely for notification of the amended rules, and then to accord promotion to the applicant. As mentioned above, a period of almost two years has gone by when directions to the respondent were issued to notify the recruitment rules, but nothing in that regard has been done. The applicant cannot be crushed in the manner the respondent Corporation has endeavoured to do. On one hand, despite the directions given by this Tribunal, notification for amending the rules has not been issued, and on the other, the applicant under the existing rules would be given only ad hoc promotion.
4. Even though number of preliminary objections have been raised in the counter reply filed on behalf of the respondent Corporation, but during the course of arguments all that has been urged is that the present Original Application would be barred by the principle of res judicata. We do not find any merit whatsoever in the only preliminary objection raised during the course of arguments, in opposing the cause of the applicant. By specific order passed by the Honble High Court, the applicant has been given permission to seek his promotion under the existing recruitment rules. In fact, the applicant, it appears, was rightly aggrieved of our judgment, as we should have given relief to him under existing rules, and to consider him for whatever post that he may be entitled to, after amendment of the rules.
5. Normally, we would have issued direction to the respondent to consider regular promotion of the applicants on the post of Senior School Inspector (Science), now re-designated as Assistant Education Officer (Science) and that of Deputy Education Officer (DEO) respectively, but in our view, there would be no need to do so in this case as admittedly, the applicants were answering the eligibility criteria for promotion on the respective posts. As mentioned above, the posts were in existence and the applicants have worked on the respective posts continuously for a long time without being regularized. In these circumstances, we are of the view that the interest of justice would be served if while allowing the present Original Applications, we may order that the applicants shall be deemed to have been regularized on the two promotional posts of Assistant Education Officer (Science) and Deputy Education Officer from the dates they were given ad hoc promotion thereon. Ordered accordingly. We are of the view that the applicants have been unnecessarily harassed by an obdurate and wholly unjustified attitude adopted by the respondent Corporation, and, therefore, the applicants should be entitled to costs, which we quantify at Rupees ten thousand each. For this long harassment, the costs imposed upon the respondent would be only conciliatory and not compensatory to the applicants.
(Dr. Ramesh Chandra Panda ) ( V. K. Bali )
Member (A) Chairman
5. The Commissioner, NDMC, thereafter obeyed the orders of the Tribunal and passed an office order dated 01.01.2013, but being dissatisfied with the order, the applicant has come before this Tribunal once again in the present OA, assailing that office order as the impugned order Annexure A-1. While implementing the earlier orders of this Tribunal, the following orders have been issued by the Respondent No.2 Commissioner NDMC:-
4. The matter has been examined in details in the light of the orders of the Honble CAT dated 05.01.2012, legal opinion tendered by Shri Gaurang Kanth and the note of the CLO and it has been decided that S/Shri Jas Ram Kaim and Kanwar Singh, Additional Director (Edu.) on current duty charge basis, shall be deemed to have been regularized on the post of Assistant Education Officer (Science) w.e.f. 04.07.1996 and to that of Deputy Education Officer w.e.f. 25.05.2004 and 08.04.2004 respectively, i.e., the dates from which they were promoted on adhoc basis. However, no arrears for the past period would be admissible to them.
5. This issue with the approval of the Commissioner (NDMC).
6. Through the above orders, both Shri Jas Ram Kaim, the applicant in OA No.3912/2010, and the applicant, who had filed OA No.3913/2010, who were Additional Director (Education) on current duty charge basis, were ordered to be deemed to have been regularized on the post of Assistant Education Officer (Science) w.e.f. 04.07.1996, and to that of Deputy Education Officer w.e.f. 25.05.2004 and 08.04.2004 respectively, i.e., the dates from which they were promoted as DEO on adhoc basis. However, the applicant is still aggrieved, though his colleague, Shri Jas Ram Kaim, who was with him before this Tribunal in the earlier proceedings, has not approached this Tribunal in these proceedings. The applicant is aggrieved that even though he was entitled for substantive promotion to the post of Additional Director, but he has been only given current duty charge of the same post since 27.04.2012 through Annexure A-3. His claim is that he ought to have been first promoted to the post of Additional Director substantively, and then to the post of Director, which is the next higher post, as he is the senior-most Deputy Director, and there is no other person, who is or has been regular Deputy Director for the period, except Shri Jas Ram Kaim, who was earlier with him in the earlier round of litigation in that case.
GROUNDS TAKEN BY THE APPLICANT
7. The applicant has pointed out that the persons, who were junior to him, in the sense that they were not regularly or substantively appointed prior to him, have been shown to be his seniors. He has submitted that he had submitted a representation dated 31.08.2012 to the Director, Local Bodies of Govt. of NCT of Delhi, Respondent No.1, praying for being regularized as Additional Director (Education), and for being entrusted the charge of Director (Education) in EMCD, as he was fully eligible for regular promotion as Additional Director (Primary Education) way back in the year 2008, and as per notified RRs, he was also fully eligible to occupy the post of the Director (Primary Education). However, his grievance is that the Respondent No.1 had not sent his dossier to the Respondent No.5, UPSC, earlier, but the same has only now been sent, belatedly.
8. The applicant has further pointed out that in the month of March 2012, there were three vacancies available for the post of Additional Director, as two of the persons, who were holding the said post had retired, and one of them had expired. In fact, when trifurcation of the MCD had taken place on 01.05.2012, three more vacancies of the post of Additional Directors, and two more posts of Education Officer-cum-Director (Primary Education), have been created, and one post of Education Officer-cum-Director (Primary Education) was already there, meaning thereby that as of today, there are six vacancies for the post of Additional Director, and three posts of Education Officer-cum-Director (Primary Education) which are lying vacant.
8. The applicant has pleaded in this OA that since he is the senior-most regular Deputy Director, and the post of Additional Director is the next higher post, he was entitled for promotion to that post, and further to the next higher post of the Director, which is also lying vacant, for which also he is entitled for promotion. He has admitted that the post of Additional Director is a selection post, and the recruitment to the same has to be done through promotion, or through transfer on deputation, as per the Recruitment Rules (RRs, for short) produced through Annexure A-5, and even though he fulfilled all the requisite conditions for the post of Additional Director since 2008, since the respondents believe in adhocism, they have not even implemented the orders of this Tribunal dated 05.12.2012 (already reproduced above) in the proper perspective.
9. He has further pleaded that the RRs for the post of Education Officer-cum-Director (Primary Education) of the erstwhile undivided MCD, were proposed to be approved vide Resolution No.746 dated 04.02.2002, and were also concurred to by the UPSC on 16.04.2004, whereby the post of Education Officer-cum-Director (Primary Education) should be deemed to have been available for being filled up from April 2004, but still the amended RRs for that post have not yet been notified. The applicant has produced the said RRs through Annexure A-6. He has also submitted that in the absence of the RRs being notified, even after their having been approved, persons who are not eligible to fill up the posts of Education Officer-cum-Director (Primary Education) are being taken on deputation, which is contrary to law, and that he was seeking relief against the persons who have been so posted on deputation, contrary to the RRs, as approved, but not yet notified. He has submitted that there was a conspiracy behind not notifying the approved RRs, without any excuse whatsoever, perhaps in order to keep the persons, like the applicant away from the post. He has, therefore, taken the ground that he is entitled for promotion to the post of Additional Director, from the date he became entitled for consideration to the said post, and came within the zone of consideration, in the year 2008, and also from the date when the vacancy was available in that post. Since, in fact, there were three posts of Additional Director available in the year 2008 itself, he had further taken the ground that since he had been regularized as Deputy Director on regular basis from the year 2004, and as he had fulfilled the eligibility condition of four years service as Deputy Director, he was eligible for being considered for such antedated promotion with effect from 2008.
10. As a follow-up ground, the applicant has submitted after he is so deemed to have been promoted to the post of Additional Director with retrospective effect since 2008 onwards, he ought to be further treated as being entitled for promotion to the post of Education Officer-cum-Director (Primary Education), from the date he became entitled to and eligible for that post, and the vacancy was also available. He had further submitted that there are three vacancies available, which have not been filled up since the RRs for the post of Education Officer-cum-Director (Primary Education), as amended, and concurred to by the UPSC also, have not yet been notified, the respondents ought to have considered him for promotion to the post of Education Officer-cum-Director (Primary Education) with the Office of Respondent No.2, Commissioner, NDMC, as he is the senior-most among the cadre and the NDMC is the Nodal Agency dealing with the Central Service Department of all the trifurcated MCDs.
11. He had further assailed the impugned order dated 01.01.2013 to the extent that in Para-4 of that order (as already reproduced above), it had been mentioned that even though the applicant will be deemed to have been promoted on regular basis to the post of Assistant Education Officer, and then to the post of Deputy Education Officer since 08.04.2004, but no arrears in respect of his past service will be admissible. He has submitted that such arrears cannot be denied to him qua those posts, and, accordingly, the respondent-authorities are duty bound to change his pay fixation and other entitlements, and other benefits flowing therefrom, to which he has become legally entitled for. He has further pleaded that the directions need to be issued to the respondents-MCD to notify the RRs for the said post of Education Officer-cum-Director (Primary Education), which are already available, and have been approved, and then his case for promotion being considered, by repatriating those persons, who have been presently posted on the post of Education Officer-cum-Director (Primary Education) on deputation basis, as they are not eligible to hold those posts under the approved RRs, which were not yet notified though. In the result, the applicant has prayed for the following reliefs:
(i) Set aside the order dated 01.01.2013 to the extent to which it refers that no arrears for the past period would be admissible to the applicant;
(ii) direct the respondents to pay all the arrears to the applicant and re-fix the pay and grade of the applicant, to which he is legally entitled for from the respective dates i.e.04.07.1996 and 08.04.2004;
(iii) direct that the applicant will be deemed to be promoted to the post of Additional Director (Education) since the years 2008 onwards as he became entitled for and came within the zone of consideration for that post and the post was available or treat the applicant being promoted to the post of Additional Director from the date the vacancy in that cadre was available along with all the benefits attached to the said post;
(iv) direct the respondents to promotion the applicant to the post of Education Officer-cum-Director (Primary Education) and post him with the office of North M.C.D. being the senior most;
(v) direct the respondents to notify the amended Recruitment Rules passed vide Resolution No.746 dated 04.02.2002 and which has been concurred by the UPSC vide its letter dated 16.04 and direct the removal and repatriation of all the persons posted with the office of any of the M.C.D.s to the post of Education Officer-cum-Director (Primary Education) as their posting on deputation is contrary to the eligibility conditions mentioned in the Recruitment Rules.
(vi) pass any other or further orders as this Honble Tribunal deems fit and proper in the facts and circumstances of the case, in favour of the applicant.
12. It may be pointed here itself that the reliefs initially prayed for at Sr. Nos. (iv) and (v) were dropped partially, as not pressed in regard to the deputationists, during the course of arguments of this case.
MISCELLANEOUS APPLICATION FILED IN BETWEEN
13. The applicant had filed MA No.600/2013, which had been considered by a Concurrent Bench on 05.03.2013. In this MA, the applicant had stated that the respondent-MCD is filling up the post of Education Officer-cum-Director (Primary Education) by way of deputation, while according to the approved RRs, which have not yet been notified, the method of recruitment to the said post is only by promotion from the post of Additional Director, with five years regular service, failing which by transfer and by deputation. Considering his MA favourably, by order dated 05.03.2013, the Concurrent Bench had directed that the respondents-MCD shall not go ahead with filling up of the post of Education Officer-cum-Director (Primary Education) by way of deputation without first availing of the procedure of promotion, as laid down in the RRs mentioned above, though it appears that perhaps it was not pointed out before the Bench, which considered the MA on that day, that the RRs behind which shelter had been sought by the applicant in that MA, had not yet been notified. These interim orders passed on MA 600/2013, have been alleged by the applicant to have been violated, because of which, the CP 291/2013 had been filed by the applicant/petitioner, and the proceedings started from 21.05.2013 with that the CP being listed for hearing, but we shall revert to the CP a little later.
GROUNDS TAKEN BY THE RESPONDENTS AND MAs FILED
14. The respondents on their part first filed their response through Respondent No.3, Commissioner, SDMC, while no replies were filed by Respondent No.2, the Commissioner, NDMC, or the applicants immediate superior employer, Respondent No.4, the Commissioner, EDMC, or by Respondent No.5, the UPSC. A separate counter reply was, however, filed on behalf of Respondent No.1, Director of Local Bodies. These counter replies were, however, filed piecemeal in this case.
15. First, an MA No.1014/2013 was filed by respondent no.3, Commissioner of SMCD, praying for vacation of the interim directions dated 05.03.2013 passed by this Tribunal. It was submitted in this MA that the applicant had not come before this Tribunal with clean hands. It was submitted that as per the notified RRs for the post of Education Officer-cum-Director (Primary Education), the officer concerned should have five years regular service in the relevant pay scale or equivalent, and should be possessing requisite length of service, as prescribed in the RRs dated 05.06.1997 in vogue, which were annexed to the MA. It was submitted in the MA that the applicant is not even entitled for consideration for promotion to the post of Education Officer-cum-Director (Primary Education), as he does not possess five years of regular service in the feeder grade, and was holding merely current duty charge of the post of Additional Director (Education), and he was not even appointed to that post on regular or substantive basis. It was further pointed out that even this current duty charge of the post of Additional Director has been given to the applicant only on 27.04.2012, and hence he does not have even five years current duty charge, and, therefore, he has no right for consideration of his promotion to the post of Director, as sought for by him, and on this ground alone, the interim order dated 05.03.2013 is liable to be vacated.
16. It was further pointed out in the MA that there is no official presently working with the answering respondent, who is having the minimum requisite length of five years substantive service as Additional Director (Education), as prescribed in the RRs notified on 05.06.1997 which are still in vogue, to be recommended for being considered for promotion to the post of Education Officer-cum-Director (Primary Education). It was submitted that since this post is a very vital post, having vast duties and responsibilities in connection with the Schools of the Corporation, imparting education mostly to the poor children of the National Capital of Territory of Delhi, the functioning of the Department would collapse if the post remains vacant for the next five years, in the absence of any candidates being eligible for promotion, and since under the RRs which are in vogue the post can be filled up by deputation, the interim directions dated 05.03.2013 passed by the Tribunal were prayed to be vacated.
17. A detailed counter affidavit on behalf of respondent no.3, the Commissioner, SMCD was filed on 01.05.2013. It was pointed out in this counter reply that the applicant is praying for promotion to the post of Education Officer-cum-Director (Primary Education) not on the basis of existing RRs dated 05.06.1997, which are still in vogue, but on the basis of the newly drafted RRs, which have not yet been notified till date. It was submitted that it is well settled law that a person is entitled for promotion etc. under the existing RRs, which are in vogue, and not under the RRs which have been drafted, and approved, but are yet to be notified. They had, therefore, prayed that the OA is not maintainable on this ground alone.
18. It was further submitted that the applicant is praying for promotion to the post of Education Officer-cum-Director (Primary Education) with Respondent No.2, NDMC even though he is an employee of the Respondent No.4, EDMC and he is not seeking any relief for appointment to the post of Education Officer-cum-Director (Primary Education) with the answering respondent no.3, SDMC, and hence the OA is liable to be dismissed at least against the answering respondent no.3 on this ground alone. They had further submitted that having been assigned the current duty charge of the post of Additional Director (Education), EDMC, only on 27.04.2012, and having not yet been promoted to the post of Additional Director (Education) on regular or substantive basis, the applicant was not at all entitled for promotion to the post of Education Officer-cum-Director (Primary Education), as prayed for by him, which requires five years regular or substantive service in the post which was still held by him in current duty charge only, and, therefore, it was submitted that the applicant has no right even for consideration for the said post as prayed for by him.
19. It was further submitted that even if the applicants promotion to the post of Additional Director (Education) with effect from March 2012 gets regularized as substantive appointment, and even then he would not become eligible for the promotion, as prayed for by him, in the absence of five years experience in regular substantive appointment against that post. It was denied that the modified RRs as drafted and approved are purposely and deliberately not being notified, and it was submitted that after trifurcation of the erstwhile MCD, the task of framing of the RRs had been assigned to Respondent No.2, NDMC, and they have later, thereafter, to be notified by the Delhi Government through R-1, and since the post concerned cannot be kept vacant, it is presently filled up only on deputation basis under the existing RRs dated 05.06.1997 which are still in vogue. It was, therefore, prayed that the OA may be dismissed in favour of the answering respondent no.3.
20. The counter reply on behalf of respondent no.1 was filed on 13.05.2013, denying the very maintainability of the OA. It was submitted that the respondent no.1, Director of Local Bodies, is not dealing with the seniority and promotion matters, which are being dealt with by respondent no.2, NDMC, which is In-charge of the Central Establishment Department after trifurcation of the erstwhile MCD, and it was further submitted that no proposal for further amendment of the RRs for the post of Education Officer-cum-Director (Primary Education)/Assistant Director (Education) after such trifurcation had been received, and it was prayed that the name of answering respondent no.1 may be deleted from the array of parties, as having been unnecessarily impleaded.
21. A separate counter reply was filed on 12.07.2013 on behalf of the applicants employer, respondent no.4, EDMC. A preliminary objection was taken in the said counter reply that the OA is barred because of plurality of reliefs sought for in the OA, and deserves to be dismissed on that ground alone. It had been further submitted that the reliefs sought by the applicant pertain only to respondent no.2, NDMC, which is now the Nodal Body dealing with the promotion matters and fixing the seniority etc. for all the three trifurcated MCDs, and, as such, no reliefs had been prayed for by the applicant from his own employer, the answering respondent no.4. In support of this contention, they had filed Minutes of the Fourth Coordination Meeting held on 02.06.2012, circulated by respondent no.1 on 05.06.2012, by which it was decided that the respondent no.2, NDMC, would continue to be the Nodal Corporation for all the establishment matters of all the three trifurcated MCDs.
22. The applicant chose to file his rejoinder affidavit to the counter reply of Respondent No.3 on 06.05.2013. He had more or less reiterated his contentions raised in the OA, and had submitted that the respondent no.3 should have placed on record the existing RRs dated 06.05.1997, but is trying to take shelter behind the amended RRs, which have not yet been notified, but are already being followed by the respondents. He had further assailed the stand of the respondent no.3 in regard to his having been placed only on current duty charge, and he had reiterated that he was entitled for the claimed promotion to the post of Director (Education), as he became Deputy Education Officer in the year 2004, on the basis of the above reproduced order of this Tribunal and within four years thereafter, he has to be deemed to be entitled for promotion to the post of Additional Director, and then just after completion of five years thereafter in 2013, he should be automatically deemed to be entitled for the post of Director (Education). He submitted that he cannot be made to suffer on account of lack of action on the part of the respondents, and that he is entitled for the reliefs, as prayed for by him, on the basis of the existing rule position for the promotion first as Additional Director from April 2008, and the promotion later as Director since 2013. It was further submitted that since the new RRs had not yet been notified, and only earlier RRs were in vogue, he was eligible for such promotions on an automatic basis, and the posts concerned cannot be filled up by the persons taken on deputation, by denying to the applicant his eligible promotions. He had, therefore, submitted that the counter affidavit filed is contrary to law, and the OA deserves to be allowed, by passing appropriate orders against R-3 for acting contrary to the spirit of the law.
23. The MA 1999/2013 was filed by the applicant on 23.07.2013, pointing out that it has come to his notice that vide order dated 15.03.2013, Shri Jas Ram Kaim, who was his co-applicant in the OA which had been decided in the first round of litigation, had been given adhoc promotion for one year to the post of Additional Direction (Education) in NDMC, and had annexed a copy of that order. He had submitted that he is otherwise senior to said Shri Jas Ram Kaim, and he ought to have been promoted first, or at least promoted to the post of Additional Director along with Shri Jas Ram Kaim. The applicant had alleged that he and Shri Jas Ram Kaim are similarly situated persons, and yet the respondents are discriminating between the similarly situated persons, as he had approached this Tribunal, while they were duty bound to treat all the similarly situated persons at par. He had, therefore, submitted that the respondents have also committed a contempt of the earlier order of this Tribunal, and had prayed for passing appropriate orders, and directing the respondents to grant at least the same benefit, as has been granted to Shri Jas Ram Kaim, and promoting him also on adhoc basis, and for passing any such further orders as this Court may deem fit. He had also filed another MA a day earlier, on 22.07.2013 praying for early hearing of the OA.
REPLY FILED BY RESPONDENT NO.2
24. A short reply on behalf of respondent no.2 NDMC was filed on 27.07.2013, adopting the counter reply earlier filed by respondent no.4, SDMC, as part and parcel of their reply, and making some further submissions. Paragraphs 4 to 7 of this counter reply may be reproduced as follows:
4. It is submitted that on the complaint of Sh. Vijay Pal Singh the Vigilance Branch of Govt. of NCT of Delhi registered a case against Sh. Kanwar Singh, Tara Gupta, Prem Lata Katarya, Swantra Bala, Sh. Jai Bhagwan, Sh. Chander Bhan, Officials of MCD & Ors., wherein a sum of Rs.12200000/- was credited in the account of Director of Education, MCD for SSA/UEE (Universalisation of Elementary Education) for construction of 610 toilets in Govt. School of MCD. A case FIR No.16/12 dated 01.10.2012 u/s 13(1)(c)(d) & 13(2) of Prevention of Corruption Act read with Section 120 of Indian Penal Code was registered on 03.10.2012.
5. It is submitted that the case of the applicant for grant of ad-hoc promotion to the post of Additional Director in pay band-4 Rs.37400-67000 + Grade Pay Rs.8700/- was considered by the Screening committee under the Chairmanship of Commissioner, North Delhi Municipal Corporation on 23.01.2013.
6. It is submitted that as per the para 7 & 8 of Chapter 15 of Sealed Cover Procedure (F/B) the position is as under:
But where FIR has been registered and decision to initiate proceedings is based on the FIR, Sealed Cover Procedure may be adopted without issued of Charge Sheet.
Though the issue of charge sheet is precondition for applying the sealed cover procedure, but the Supreme Court clarified in H.C. Khurana case, that the term issued does not include actual receipt of the charge memo by the employee where the charge sheet has been framed and steps taken to dispatch it. It is further clarified in Union of India Vs. Kewal Kumar, AIR 1993 SC 1585, that the very requirement of issue of charge sheet was held dispensed with in a case where the decision to initiate disciplinary proceedings is based on an FIR. The reason is that the FIR itself lists the allegations.
7. It is submitted that it is crystal clear that the case of the applicant since a FIR has been registered and in view of the judgment of the Honble Supreme Court the applicant cannot be promoted to the post of Education Officer-cum-Director but however, the applicant has already been given the current duty charge of post of Additional Director (Education) on 27.04.2012 as alleged by him.
(Emphasis supplied).
25. Through the above submissions, the Respondent No.2 had submitted that since the promotion case of the applicant had been kept under sealed cover by the Screening Committee held under the chairmanship of Commissioner, NDMC on 23.01.2013, and an FIR has been registered against him, the applicant cannot be promoted to the post of Education Officer-cum-Director even though he has already been given current duty charge of Additional Director (Education) on 27.04.2012 in which he was continuing.
26. During the course of hearings of the OA, the applicant had filed MA No.600/2013 on 27.02.2013. Through this MA, the applicant had claimed that the MCD-Respondents are going to take persons on deputation on the post of Education Officer-cum-Director (Primary Education), while the applicant is within the feeder cadre for that post, and he is entitled to be promoted to the said post. He had, therefore, prayed for grant of interim orders, submitting that if such interim orders are not granted, the respondents will go ahead to take persons on deputation from outside, which action is not only illegal, but also malafide. The Bench, which considered his MA on 05.03.2013, had passed the following orders, and had thereafter fixed the OA for hearing on 22.04.2013:-
MA No.600/2013This MA has been filed by the applicant stating that the respondents-MCD is filling up the post of Education Officer-cum-Director (Primary Education) by way of deputation. The contention of the learned counsel for the applicant is that according to the recruitment rules, the method of recruitment to the aforesaid post is by promotion from Additional Director (Primary Education) with five years regular service failing which by transfer and by deputation.
It is seen that the applicant had already filed OA No. 659/2013 against the order of the respondents dated 01.01.2013. One of the prayer of the applicant in the said OA was to promote him to the post of Education Officer-cum-Director (Primary Education) and post him with the office of North MCD being the senior most. Notice in the said OA was issued to the respondents-MCD on 25.02.2013 and the case has now been listed for 22.04.2013.
In our considered view, during the pendency of the aforesaid OA, if the respondents are going ahead with the filling up of the post of Education Officer-cum-Director (Primary Education) by deputation without resorting to the first method of recruitment, namely, promotion from among the eligible Additional Directors, it will amount to frustrating of this case.
In view of the above position, we direct that the respondents-MCD shall not go ahead with the filling up of the post of Education Officer-cum-Director (Primary Education) by way of deputation without first availing of the procedure of promotion as laid down in the recruitment rules stated above.
In terms of the above directions, this MA is allowed CP No.291/2013
27. Soon thereafter, the applicant had also filed Contempt Petition No.291/2013, naming Shri Manish Gupta, Commissioner, SDMC and Shri B.N.Singh, Director (Personal) Central Establishment Department, SDMC, as alleged contemnors, and had submitted that even after the above interim relief had been granted to him, he had learnt that an order dated 01.04.2013 posting a DANICS Officer in that post had been passed on the one hand, and, on the other hand, the respondents had filed MA 1014/2013 on 18.04.2013, seeking recall of the interim relief granted to him by this Tribunal on 05.03.2013. On 21.05.2013 notices were issued in that Contempt Petition to the alleged contemnors, and the C.P. was ordered to be listed on 05.07.2013. On 05.07.2013, learned counsel for the respondents put in her appearance, and sought time for filing reply in the CP, which time was allowed, as prayed for, and the C.P. was ordered to be listed on 05.08.2013. On 05.08.2013, the MA, CP and OA came to be clubbed for being heard together, and the cases were heard at quite some length on 07.08.2013, and at that days hearing, the learned counsel for the respondents sought time to produce the file in which the order had been passed, on the basis of which the CP No.291/2013 had been filed, which time was allowed. It was further ordered that the OA will be heard only after the CP had been disposed of, and the connected OA, CP and MAs were ordered to be listed together on 13.08.2013. Ultimately the matter was heard in part on 13.08.2013, and on 21.08.2013. Thereafter, on 21.08.2013, the matter was finally heard and reserved for orders.
28. In the Contempt Petition, the contention of the petitioner/applicant is that even though he had been granted interim relief by way of a direction that the Respondent-MCD shall not go ahead with the filling up of the post of Education Officer-cum-Director (Primary Education) by way of deputation without first availing of the procedure of promotion, as laid down in the recruitment rules, the SDMC had not only passed such an order dated 01.04.2013, taking a DANICS Officer on deputation against that post, but they had not brought that order even to the notice of their counsel, who had, in parallel, already filed their Miscellaneous Application for recalling of the interim orders of this Tribunal. He had, therefore, alleged that the alleged contemnors had willfully and deliberately violated the order of this Tribunal, and, in fact, the action on the part of the respondents amounts to perjury also, and one had to be truthful to the Tribunal in regard to the controversy with which this Tribunal was seized of. It was submitted that nobody has any right to violate the orders of this Tribunal or to do any act which affects the authority and majesty of the order passed by this Tribunal. Therefore, it was prayed that the action on the part of the alleged contemnors of having committed a contempt is writ large and clear from the facts, he had therefore prayed for initiating contempt proceedings against the alleged contemnors for violating the interim orders dated 05.03.2013, and had prayed for punishing them in accordance with law, in the interest of justice. Along with the Contempt Petition, he had filed a copy of the said office order dated 01.04.2013 passed by the SDMC, Central Establishment Department, which reads as under:
Office Order Further to this Departments Office Order No.AO/CED/SDMC/2013/534 dated 25.03.2013 and in supersession of the previous orders, the following postings/transfers of Deputy Commissioners are ordered with immediate effect:-
a) Shir Brij Mohan Mishra, IAS (AGMU:2008) is posted as Deputy Registrar, Central Zone vice Shri Krishan Kumar, DANICS.
b) Shri Krishan Kumar, DANICS, is relieved of the charge of Dy.Commissioner, Central Zone and is posted as Director (Primary Education). Shri Krishan Kumar will hold additional charge of the Community Services Department as Deputy Commissioner (CSD) and shall head the Community Services Deptt. Director (CSD) shall report through DC(CSD).
2. This issues with the approval of the Competent Authority.
(Sunil Bhardwaj) Asstt. Commissioner/East
29. However, it is seen that while allowing the MA 600/2013, in Para-2 of its order dated 05.03.2013, as already reproduced above, the concurrent Bench, which had passed the interim order on the basis of which this Contempt Petition has been filed, had noted that the prayer of the applicant in the OA was to promote him to the post of Education Officer-cum-Director (Primary Education), and to post him with the Office of NDMC, on account of his being the senior most. It is also an admitted fact that the petitioner/applicant was himself posted in the EDMC.
30. While passing its interim orders dated 05.03.2013, the Bench that day had not specifically directed as to which of the three respondent Municipal Corporations, Respondent No.2 NDMC, Respondent No.3 SDMC, and Respondent No.4 EDMC, were restrained by it from filling up their posts of Education Officer-cum-Director (Primary Education) on deputation basis. It is clear that one person cannot be allowed to lay a claim to occupy the posts of Education Officer-cum-Director (Primary Education) in all the three Municipal Corporations. Since the employer of the petitioner/applicant was EDMC, where he was posted on current duty charge basis as Additional Director, a presumption would first arise that the interim direction issued by the Bench on 05.03.2013, while allowing MA No.600/2013, was directed only against the applicant/petitioners own employer EDMC. However, as it has been noted by us above also, the main prayer of the applicant in the OA was to promote him to the post of Education Officer-cum-Director (Primary Education) in NDMC, under Respondent No.2. Therefore, since the said MA No.600/2013 had been filed in conjunction with, and in furtherance of the applicants prayers as made in the OA pending for adjudication before this Tribunal, the prayer made by the petitioner/applicant in that MA could only be construed to be linked to the prayers made in the OA itself, i.e., the prayer for posting in the relevant post in NDMC, under Respondent No.2. It appears to us that it could not have been the intention of the Bench, which had passed the interim order dated 05.03.2013, while allowing the petitioner/applicants MA No.600/2013, to block all the three posts with all the three Municipal Corporations, Respondent No.2 NDMC, Respondent No.3 SDMC and Respondent No.4 EDMC, for the sake of one single person. Since the petitioner/applicant was neither an employee of SDMC Respondent No.3, nor had sought a posting with SDMC, Respondent No.3, the issuance of the order dated 01.04.2013 by SDMC impugned in these Contempt Proceedings cannot be construed to impinge upon any of the vested rights of the applicant, or any of the prayers of the applicant pending adjudication before this Tribunal, as petitioner/applicant had never wanted or prayed to be allowed to occupy the post of Education Officer-cum-Director (Primary Education) with SDMC.
31. Unfortunately, the Bench had on 05.03.2013 not clearly indicated as to whether its order was directed to EDMC, Respondent No.4, who was the applicants employer as on that date, or in respect of Respondent No. 2, NDMC, with which the applicant had sought posting after promotion, as prayed for, as Education Officer-cum-Director (Primary Education). In any case, the applicant had never made out any claim, or made any request in respect of posting to SDMC, after his promotion as prayed for. But, in this Contempt Petition, the petitioner/applicant has assailed the action of SDMC, Respondent No.3, in having passed the impugned office order dated 01.04.2013, posting one DANICS Officer Shri Krishan Kumar, as Director (Primary Education) in the SDMC, while continuing to hold the additional charge of the Community Services Department of the SDMC as Deputy Commissioner (CSD). The petitioner/applicant has also arrayed as respondents in this Contempt Petition, only the Commissioner of SDMC, Respondent No.3, and the Director (Personal), Central Establishment Department, SDMC, as party-respondents by name in this CP.
32. It is quite clear that when neither the petitioner/applicant was working with SDMC, Respondent No.3, at the time of filing of MA 600/2013, nor had he sought any posting in SDMC as Education Officer-cum-Director (Primary Education), after his promotion as claimed in the O.A. which was pending adjudication, and nor had the Bench, which passed the interim order on 05.03.2013, issued a direction to the SDMC, Respondent No.3, not to post an Education Officer-cum-Director (Primary Education), against the vacant post available with them, the petitioner/applicant cannot be allowed to plead any contempt of this Tribunal having been committed on the part of the officers at the helm of affairs in that body corporate, SDMC, against whom nor any kind of permanent or even interim relief had been sought for by him, nor had he been granted any directed interim relief through the interim orders dated 05.03.2013 of this Tribunal. It is clear that he could have obviously made out a case of contempt only if any such orders (as the impugned order passed by Respondent No.3, SDMC, on 01.04.2013) had been passed by either his employer, the Respondent No.4, EDMC, or by the Respondent No.2, NDMC, in respect of which his prayer was pending adjudication in the O.A. pending before this Tribunal. Therefore, this present Contempt Petition No.291/2013 is wholly misplaced, misconceived, and misdirected, and does not lie. Hence, the Contempt Petition is dismissed, and the notices issued to the respondents/alleged contemnors are discharged.
FINDINGS ON OA NO. 659/201333. Coming to the main OA, as per the documents submitted during the hearing of the OA on 21.08.2013, the status report submitted by the Deputy Director (Local Bodies) in the Office of Local Bodies of Govt. of NCT of Delhi, which was verified by the concerned officer on 02.08.2013, had stated as follows:
STATUS REPORT It is respectfully submitted that the draft proposal for amendment in RRs for the post Education Officer-cum-Director (Primary Education) has been received from the North DMC on 2.7.2013 which is under process with RR Committee, constituted by the Director of Local of Local Bodies for this purpose.
(Ramesh Kumar) Deputy Director (Local Bodies)
34. Since now a further process of amendment in the RRs for the three posts of Education Officer-cum-Director (Primary Education), with the three trifurcated bodies corporate, NDMC, EDMC, & SDMC, is under progress, and the applicant had during the course of hearing of the case partially dropped his prayers at 8 (iv) and (v) of the O.A. as not pressed in regard to deputationists, as already mentioned earlier also, the respondents shall be at liberty to expeditiously consider the draft proposal for the further amendments in the RRs, for the three posts of Education Officer-cum-Director (Primary Education) in the three bodies corporate, which has been stated to have been, since submitted by the NDMC to the office of Director of Local Bodies of Govt. of NCT of Delhi, and to notify the same after its approval by the Committee for considering those RRs constituted by the Director Local Bodies.
35. On an examination of the prayers of the applicant in the O.A. as reproduced by us in Para-11/above, it is seen that while passing its order dated 26.02.2010 in the applicants earlier O.A., the Bench had recorded its findings as follows:-
.As mentioned above, the posts were in existence and the applicants have worked on the respective posts continuously for a long time without being regularized. In these circumstances, we are of the view that the interest of justice would be served if while allowing the present Original Applications, we may order that the applicants shall be deemed to have been regularized on the two promotional posts of Assistant Education Officer (Science) and Deputy Education Officer from the dates they were given ad hoc promotion thereon. Ordered accordingly. We are of the view that the applicants have been unnecessarily harassed by an obdurate and wholly unjustified attitude adopted by the respondent Corporation, and, therefore, the applicants should be entitled to costs, which we quantify at Rupees ten thousand each. For this long harassment, the costs imposed upon the respondent would be only conciliatory and not compensatory to the applicants.
(Emphasis supplied)
36. The respondents have thereafter taken the stand in the order dated 01.01.2013, Annexure A-1, the relevant portion of which has been produced in Para-5/above, that since the Bench had directed that the duties performed by two applicants in those two connected OAs decided together were only on ad-hoc basis, they shall be deemed to have been regularized on the post of Assistant Education Officer (Science) w.e.f. 04.07.1996, and to that of Deputy Education Officer w.e.f. 25.05.2004 and 08.04.2004 respectively, i.e., the dates from which they were promoted on ad hoc basis. It has also been decided by the Respondent No.2, Commissioner, NDMC, that no arrears of the past periods would be admissible to the two applicants of the two OAs decided together then. Since the Bench has re-compensated the applicants while deciding their OAs earlier by awarding costs to the extent of Rs. 10,000/- each to both the applicants of the two OAs, it does not flow from the order, as passed by the Bench that day. that they were also held to be entitled to any arrears of pay in respect of the past periods. We have, therefore, not been able to find any fault with the orders as passed by Respondent No.2, Commissioner, NDMC on 01.01.2013, which appear to have been passed on the basis of a correct appreciation of the concurrent Benchs order dated 05.01.2012, and the prayers at Para-8 (i) & (ii) are, therefore, rejected.
37. The whole issue of the entire service career of the two applicants of the two OAs was under consideration before the previous Bench. However, the Bench had decided those two OAs and ordered to give them deemed regularization only against two of their promotional posts, firstly of Assistant Education Officer (Science), and secondly of Deputy Education Officer, from the dates they were given ad hoc promotion thereon. We are bound by that finding dated 05.01.2012 of the Coordinate Bench. The present applicant has since been given only current duty charge of the post of Additional Director (Education), EDMC, and has never been given ad hoc charge of the post of Additional Director (Education). The respondents are right in having submitted that without his having actually performed the work as Deputy Education Officer for a period of 5 years, the applicant cannot, as a matter of right, claim to be substantively promoted, or even claim to be deemed to be promoted to the post of Additional Director (Education) during the year 2008 onwards, when he considers himself to have become entitled, and to have come within the zone of consideration for that post, merely by virtue of the operation of the previous orders of this Tribunal in his OA No. 3913/2010. When the RRs for the relevant post require 5 years substantive occupation of the feeder post, merely deemed occupation of that feeder post cannot suffice. Therefore, it is clear that the prayer at Para-8 (iii) in the prayer clause cannot also be granted to the applicant.
38. As has been noted in Paragraph-12 above, during the course of the arguments in this case, the learned counsel for the applicant had partially dropped the prayers at Para-8 (iv) & (v), as prayed for in the OA. These prayers having been dropped, the applicant cannot be held to be entitled to any relief against them.
39. Lastly, his prayer at Para-8 (vi) was to pass any other or further orders as this Tribunal may deem fit and proper in the facts and circumstances of the case. Normally, we may have been inclined to grant some relief to him on the basis of equity. But since it has been brought on record that the case of the applicant was indeed considered by the DPC for promotion to the post of Additional Director (Education), but had to be kept in a sealed cover, because of his involvement in a criminal case, and an FIR having been registered against him along with many others, which facts had been noticed by the Departmental Promotional Committee on the report of the Vigilance Branch of the Govt. of NCT of Delhi, in such circumstances, we refrain ourselves from granting any relief to the applicant even by way of equity, which he is otherwise not entitled to on merits.
40. With these observations, the OA is, therefore, rejected, but there shall be no order as to costs.
41. The Contempt Petition having been disposed of as dismissed, has already been recorded above in Paragraph-32 above. The associated MAs No.1014/2013 and 1999/2013 are also, therefore, disposed of accordingly.
(A.K.Bhardwaj) (Sudhir Kumar) Member (J) Member (A) /kdr/