Central Administrative Tribunal - Delhi
Sh.Adarsh Kumar Malik vs Delhi Development Authority on 25 February, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A.NO.1344 OF 2013 New Delhi, this the 25th day of February, 2014 CORAM: HONBLE SHRI ASHOK KUMAR, ADMINISTRATIVE MEMBER AND HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER . Sh.Adarsh Kumar Malik, Aged 59 years Approx, s/o late Sh.N.L.Malik, Superintending Engineer (Civil), R/o M-484, Guru Harkishan Nagar, Paschim Vihar, New Delhi 110087 . Applicant (By Advocate: Shri Rajesh Katyal for Shri S.S.Katyal) Vrs. 1. Delhi Development Authority, Through its Vice-Chairman, Vikas Sadan (B-Block), 1st Floor, Near INA, New Delhi 110023 2. The Lieutenant Governor of Delhi, 5, Raj Niwas Marg, Delhi 3. Sh.Umesh Kumar, Chief Engineer (Civil), Working as Chief Engineer (Civil), Current Duty Charge, Service to be effected through Respondent No.1Respondents (By Advocate: Shri Manish Garg) .. ORDER Raj Vir Sharma, Member(J):
In this Original Application, the applicant has prayed for the following relief:
(i) To quash and set aside the order dt.28.03.2013 as passed by the Respondents whereby the Respondents have given the current duty charge of the Chief Engineer to Sh.Umesh Kumar, the Respondent No.3 who is junior to the applicant.
To direct the respondents to hold the review DPC/DPC for considering the case of the applicant as on 28.01.2013 i.e. the original date of DPC for promotion to the post of Chief Engineer (Civil) against the vacancy that has/is arisen/arising on 01.02.2013 due to the retirement of Sh.V.S.Jainth on 31.01.2013 due to the retirement of Sh.V.S.Jainth on 31.01.2013 and consequently appoint him as Chief Engineer (Civil) with all consequential benefits.
To pass such other and further order which this Honble Tribunal may deem fit and proper.
2. Brief facts of the applicants case are that he joined Delhi Development Authority (respondent No.1) as Junior Engineer on 11.6.1976 and was promoted to the post of Assistant Engineer (Civil) on 3.12.1980, to the post of Executive Engineer (Civil) on 12.01.2001and to the post of Superintending Engineer (Civil) on 21.1.2008. The Lt. Governor issued order relaxing the eligibility condition for promotion to the post of Chief Engineer (Civil) for the year 2012-13, and a Superintending Engineer (Civil) having 5 years of service in the grade would be eligible for promotion to the post of Chief Engineer (Civil). The D.P.C. met on 28.1.2013. Seven officers including the applicant and respondent no.3 were in the zone of consideration. The D.P.C. recommended Shri V.S.Jainth for promotion to the post of Chief Engineer(Civil). The said Shri V.S.Jainth was promoted to the post of Chief Engineer (Civil), vide order dated 31.1.2013 (Annexure A-2) and retired on superannuation on the same day. According to the applicant, the D.P.C., which met on 28.1.2013, ought to have prepared extended panel by considering his case and including him in the panel for promotion to the post of Chief Engineer (Civil) against the vacancy which arose on 1.2.2013 as per the guidelines issued by the DoP&T. He made representation on 1.2.2013(Annexure A-5) requesting the Commissioner (Personnel), D.D.A., to promote him to the post of Chief Engineer (Civil). He also made further representations on 6.2.2013, 15.2.2013, 22.2.2013, 1.3.2013, 6.3.2013 and 14.3.2013(Annexure A-5 Collectively) making same request, but to no effect. It is contended by the applicant that the action of the Selection Committee and the official respondents is in total violation of the DoP&Ts O.Ms. dated 14.9.1992, 09.04.1996, 15.5.2007, 07.07.2008 and 02.11.2012 (Annexure A-6). In support of his contentions, the applicant has relied on the decision of the Honble Supreme Court in Union of India v. N.R.Banerjee, 1997 (9) SCC 287. It is also his case that respondent no.1-DDA, vide E.O.No.499, dated 28.3.2013 (Annexure A-1), assigned the current duty charge of the post of Chief Engineer (Civil) to respondent no.3, who is junior to the applicant, with a mala fide intention to deny promotion to the applicant to the post of Chief Engineer (Civil) as the relaxation given by the Lt. Governor for the year 2012-13 was to expire on 31.3.2013.
3. In the counter reply, the official respondents, while refuting the averments contained in the O.A., have resisted the claim made by the applicant. It is stated that four Superintending Engineers (Civil) including the applicant and respondent no.3, were in the zone of consideration. The D.P.C., which met on 28.1.2013, assessed two officers (Sl.No.1 and 2) for promotion to the post of Chief Engineer (Civil) and recommended to place its finding in respect of Sl.No.1, Shri Brij Pal, Superintending Engineer (Civil), in a sealed cover and empanelled Shri V.S.Jainth, Superintending Engineer (Civil), who was at Sl.No.2 of the zone of consideration, for promotion to the post of Chief Engineer. Accordingly, the said Shri V.S.Jainth was promoted to the post of Chief Engineer (Civil), vide E.O.No.163 dated 31.1.2013. The said D.P.C. did not assess the applicant. It was decided by the D.P.C. that the Recruitment Rules as applicable to the post should be followed. The Dy. Director (Vigilance), vide U.O. letter dated 22.1.2013 intimated that the disciplinary authority had ordered to initiate a major penalty proceedings on 3.12.2012 against the applicant who was at Sl.No.3 of the zone of consideration. As no charge sheet was issued to him, the applicant was in the zone of consideration on 16.7.2012 and 28.1.2013 when the meetings of the D.P.C. were held. Finally, a charge sheet was issued to the applicant, vide Memo No.27 (10)12/EE(Vig.)-IV/DDA/3411 dated 15.3.2013. In the above context, the official respondents submit that there was no illegality or irregularity committed by the D.P.C. and the official respondents.
4. Private respondent no.3 has not filed any counter reply.
5. The applicant, in the rejoinder reply, while refuting the stand taken by the official respondents in their counter, has reiterated more or less the same averments and grounds as in the O.A.
6. We have perused the pleadings and heard the learned counsel appearing for the parties.
7. At the outset, it is pertinent to mention here that as per Section 20 of the Administrative Tribunals Act, 1985, a Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him as to redressal of grievances. In paragraph 6 of the O.A. the applicant is stated to have availed of all the departmental remedies available to him by referring to his representations dated 1.2.2013, 6.2.2013, 15.2.2013, 22.2.2013, 1.3.2013, 6.3.2013 and 14.3.2013. The copies of the said representations have been filed along with the O.A. as Annexure A-5 Collectively. A perusal of the said representations reveals that in none of the said representations, the applicant has stated about the purported illegalities and/or irregularities committed by the D.P.C. in not assessing him along with Sh.V.S.Jainth (Sl.No.2 in the zone of consideration) and others and in not empanelling him, along with the said Shri Jainth for promotion to the post of Chief Engineer (Civil), by extending the panel in terms of the DoP&Ts guidelines referred to by him, as a consequence of which he was not promoted to the post of Chief Engineer (Civil) after retirement of the said Shri Jainth. What he claimed in the said representations was to promote him to the post of Chief Engineer (Civil) consequent upon retirement of the said Shri Jainth. Besides, the period of six months as mandated in Section 20(2)(b) of the Administrative Tribunals Act, 1985, having not expired from the date of his first representation, the Original Application filed on 22.4.2013 being premature cannot also be entertained by the Tribunal. So far as his grievance against the impugned order dated 28.3.2013 (Annexure A-1) is concerned, it appears that he has not even made a representation to the official respondents in relation thereto. In D.C.S. Negi v. Union of India & Ors., SLP (C) No.7956/2011(CC No.3709/2011) decided on 07.03.2011, the Honble Supreme Court, while dismissing the Appeal, has emphasized that the Administrative Tribunal established under the Act cannot abdicate its duty to act in accordance with the statute under which it is established. Therefore, in our view, the provisions of the Administrative Tribunals Act, 1985 have to be strictly followed, and we are duty bound to first consider whether the application filed by the applicant is within the provisions of the Administrative Tribunals Act, 1985. As already observed above, the applicant has approached this Tribunal without exhausting the remedy available to him. We, therefore, hold that the Original Application is not maintainable and is liable to be rejected.
8. However, we would like to observe that if the applicant is so advised, he may make appropriate representation to the official respondents for redressal of his grievances. We hope and trust that if such representation is made by the applicant, the official respondents will bestow due consideration to the applicants representation and dispose of the same by passing a reasoned and speaking order as expeditiously as possible.
9. With the above observation, the Original Application is rejected. No costs.
(RAJ VIR SHARMA) (ASHOK KUMAR) JUDICIAL MEMBER ADMINISTRATIVE MEMBER AN