Central Administrative Tribunal - Delhi
Amarjeet Singh & Others vs Delhi Development Authority & Anr. on 9 September, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
NEW DELHI
O.A. NO.82/2008
with
T.A. NO.86/2009
This the 9th day of September, 2009
HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN
HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A)
O.A. NO.82/2008
Amarjeet Singh & Others Applicants
Versus
Delhi Development Authority & Anr. Respondents
T.A. NO.86/2009
R. K. Mittal & Another Applicants
Versus
Delhi Development Authority & Others Respondents
Advocates: Shri G.D.Gupta, Sr. Adv. and with him Shri Rahul Sharma, counsel for applicants in OA No.82/2008, and for private respondents in TA No.86/2009.
Shri Arun Birbal, Adv., for respondent DDA in OA No.82/2008 and TA No.86/2009.
Shri Ramji Srinivasan, Sr. Adv. and with him Shri Pramod Gupta, Shri Manish Kumar and Vastika Sahay, for applicants in TA No.86/2009 and for respondents 2 to 6 in OA No.82/2008.
O R D E R
Justice V. K. Bali, Chairman:
This case has a chequered history having its roots dating back to 1984. Inter se seniority dispute that started in 1984, is still on a hot pot. There have been two phases of litigation between the rival parties, as has also been noted by the Honble Supreme Court in its latest judgment in Shailendra Dania & Others v S. P. Dubey & Others [(2007) 5 SCC 535]. Whereas, the first phase, it appears, ended in the High Court, the second phase culminated into the order passed by the Honble Supreme Court in Shailendra Danias case. These two phases of litigation has a span of over two decades. The third phase starts now. Whereas, petitioners in WP (C) No.2819/1993, which has been transferred to this Tribunal under provisions of Section 29(2) of the Administrative Tribunals Act, 1985, and has been re-numbered as Transferred Application (TA) No.86/2009, were graduates with engineering degrees at the time of their entry in service, the applicants in OA No.82/2008 were diploma holders at the time of their entry into service, but all of them have obtained qualification of degree in engineering or equivalent qualifications during their service. We may not make an elaborate mention of the rules at this stage. Suffice it, however, to say that the inter se dispute is between those who entered into service as Junior Engineers with degree in engineering, and those who came initially as diploma holders, but improved their qualifications during currency of their service.
2. WP (C) No.2819/1993 (TA No.86/2009), which came up before a learned single Judge of the High Court, was referred to a Division Bench while issuing rule, and then, inasmuch as, a similar writ petition which had since already been referred to a Full Bench, the same came to be listed along with the said writ. The decision of the Full Bench dated 25.1.2002 in CWP No.4696/1993 in the matter of S. P. Dubey v Municipal Corporation of Delhi & Others was challenged before the Honble Supreme Court, and vide order dated April 17, 2007 in Shailendra Dania (supra) the same has been reversed. The operative part of the order aforesaid reads as follows:
For the above reasons, the appeals are allowed and the impugned judgment of the High Court is set aside. The writ petitions shall now be decided by the Division Bench of the High Court in accordance with law laid down herein. The writ petitions which were transferred to and registered as Transferred Cases in this Court, shall also be sent back to the High Court for their decision in accordance with law. Vide order dated 16.12.2008, a Division Bench of the High Court of Delhi ordered these matters to be listed before this Tribunal.
3. Insofar as, OA No.82/2008 is concerned, the same has been filed when after decision of the Honble Supreme Court, the respondent Delhi Development Authority arranged a meeting of DPC to be held on 9/10.1.2008 for promotion to the post of Assistant Engineer. Challenge in the OA is also to the opinion given by the law department after decision of the Honble Supreme Court in Shailendra Dania (supra), which goes against the applicants. In a way thus, the writ (TA) and the OA are cross cases.
4. Arguments were heard in these matters on 11.8.2009 and judgment was reserved. While, however, preparing the judgment, we found that insofar as OA No.82/2008 is concerned, the same has since already been partly heard by an Honble Bench of this Tribunal. However, when TA No.86/2009 came up before this Bench, we ordered the other connected matters also to be listed for hearing with the same, one of which was OA No.82/2008. We were not informed at that stage that OA No.82/2008 had since already been partly heard by a co-ordinate Bench of this Tribunal.
5. The primary plea raised by the applicants in TA No.86/2009 is that the DDA from 1984 to 1990 had been uniformly applying the principle of counting seniority in the quota of degree holders from the date of acquisition of degree and eligibility three years thereafter, and that way, diploma holders who were otherwise senior to degree holders, but had acquired degree subsequently and became eligible later, were placed junior to them in the so called combined seniority list, but were senior in their own quota of degree holders. This position was, however, altered in 1990 when Commissioner (Personnel), DDA, issued a circular dated 20.9.1990 whereby subsequently acquired degree holders became eligible for promotion in the quota of degree holders immediately on acquisition of degree provided they had three years experience as diploma holders. The said circular was struck down by the Division Bench of the Delhi High Court in LPA No.43/1991 vide judgment dated 12.2.1992. SLP against the said judgment was dismissed in limine on 20.8.1992. The applicants also naturally place reliance upon the latest judgment recorded by the Apex Court in Shailendra Dania (supra). The respondents in TA No.86/2009 and the applicants in OA No.82/2008 would, however, state that Shailendra Danias case deals only with one aspect of the case, i.e., eligibility of those who have improved their qualifications, to be eligible in the quota meant for degree holders and not seniority, and further that the issue of seniority has been left open by the Honble Supreme Court in its judgment relied upon by the applicants in TA No.86/2009. They also place reliance upon a recent decision of the Madras High Court in WP No.36948/2006 and connected matters in the matter of N. Sureshnathan v Governor of Pondicherry & Others decided on 27.1.2009, wherein the judgment of the Honble Supreme Court in Shailendra Dania (supra) has also been considered. An intricate situation has developed in this case. As per settled law, the Tribunal at Delhi has to follow the law laid down by the Delhi High Court, whereas the Tribunal at Madras would follow the law laid down by Madras High Court. There is no law on point as yet as to what would be the situation if two different High Courts may have expressed different opinion on the same subject. We may also mention that against the judgment of the Madras High Court in N. Sureshnathan (supra), SLP has been filed which stands admitted without any stay. No arguments were addressed by the learned counsel representing the parties as to how the Tribunal may proceed in case there is a conflict of opinion on the same point by two different High Courts. If we proceed in the matter without resolving this controversy, the outcome would be that in the Tribunal at Madras, the view taken by the Madras High Court would be followed, whereas a different and contradictory view would be followed by the Tribunal at Delhi. This issue needs to be resolved.
6. Considering the importance of the issue as mentioned above, and the intricate controversy on merits as well, we are of the opinion that the matter needs to be referred to a larger Bench for effective adjudication of the points as mentioned above. We are of the view that one of the Members of the Bench which partly heard OA No.82/2008 needs to be a Member of the Bench as well. Ordered accordingly. Registrar of the Tribunal would seek orders from one of us (Chairman) for constituting the Full Bench immediately.
7. Since the matter has been referred to a Full Bench, in the very nature of things, it would take some time to finalise these matters. Considering, however, that it is a long standing seniority dispute, every endeavour shall be made to expedite the decision of the cases. We find from the records of OA No.82/2008 that on 14.1.2008, the Honble Bench seized of the matter had directed further proceedings for promotion to the cadre of Assistant Engineers consequent to the DPC held on 9/10.1.2008 be stayed for a period of one week. On 22.1.2008, the following order came to be passed by the Bench presided over by Honble Shri Justice M. Ramachandran, VC(J):
Heard the learned counsel for the parties.
Interim order, earlier passed, may not be permitted to continue since it is pointed out that promotion orders have been issued on 11.01.2008 and that the concerned persons have already joined the respective posts.
Learned counsel of respondents seeks and is allowed three weeks time to file reply.
It is submitted on behalf of R-2 that he may not be a proper party to the proceedings.
Learned counsel of the applicant submits that he would be taking steps to delete his name and would file amended Memo of Parties.
List on 22.2.2008.
A copy of this order be given dasti to the parties. It would appear from the order aforesaid that the interim directions issued on 14.1.2008 have since been vacated, even though not so specifically stated. We do not know how despite the order dated 22.1.2008, it came to be recorded in the order dated 15.7.2008 that interim order would continue till next date of hearing. In subsequent orders also till such time the matter was adjourned to 5.3.2009 as part-heard, it has been mentioned that interim directions would continue. Once, promotion orders have since already been issued and the concerned persons have even joined their respective posts, we are of the considered view that there should be no further stay in the matter. Once, the same very Bench had clearly mentioned that the interim order earlier passed may not be permitted to continue, it appears to us that subsequent orders stating that the interim directions would continue, may be an inadvertent mistake. Once, DPC has been held, promotions ordered and the concerned employees have taken over their promotional posts, and are working on the same, there does not appear to be any justification for issuing any interim directions in OA No.82/2008. While, however, protecting the interest of the applicants, we order that promotions that have been made or may be made would be subject to the decision of the Full Bench.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/