Central Administrative Tribunal - Delhi
Smt. Durgesh Nandini vs Delhi Transport Corporation on 13 August, 2009
CENTRAL ADMINSTRATIVE TRIBUNAL PRINCIPAL BENCH T.A. No. 806/2009 With TA No. 821/2009 New Delhi this the 13th day of August, 2009 Honble Mr. Justice M. Ramachandran, Vice Chairman (J) Honble Mr. Shailendra Pandey, Member (A ) TA 806/2009 1. Smt. Durgesh Nandini, Manager (Traffic), P.T. No. 53267, W/o Mr. G.C. Vaeshney, R/o Quarter flat No.1, DTC Colony, Shadipur, New Delhi-110008. Sanjay Saxena, Manager (Traffic), P.T. No. 53260, S/o Shri K.C. Saxena, R/o A-154, MIG Brij Vihar Ghaziabad (UP). Applicants ( By Advocate Shri Anil Mittal ) VERSUS Delhi Transport Corporation, I.P. Estate, New Delhi-110002 (Through its Chairman-cum- Managing Director). Respondent (By Advocate Shri U.N. Tiwari ) TA 821/2009 1. Ravinder Kumar Jain, Manager ( Traffic), P. T. No. 53254, S/o late Shri J.L. Jain, R/o B-186, Sector-41, NOIDA. 2. Anuj Kumar Sinha, Manager (Traffic), P.T. No. 53258, S/o Dr. Umesh Kumar Sinha, R/o SRB-34 B, Shipra Riviera, Indirapuram, Ghaziabad (UP). ... Applicants (By Advocate Shri Manish Jain ) VERSUS Delhi Transport Corporation, I.P. Estate, New Delhi-110002 (Through its Chairman-cum- Managing Director). I.P. Estate, New Delhi. Respondent (By Advocate Shri U.N. Tiwari ) O R D E R
M. Ramachandran, Vice Chairman (J) The above transferred applications respectively arise from W.P (C) nos. 8667-70/2004 and 18980-81/2006 of the Delhi High Court. The two applicants in TA 821/2009 were among the four petitioners in the 2004 writ petitions, but they later on had withdrawn themselves from the proceedings, since they apparently felt that there might be conflict of interests, with liberty reserved to come up with fresh petition. This had led to the 2006 writ petitions. Thereafter they were being jointly heard, and have been transferred over to the CAT, in view of the proceedings of the High Court dated 25.2.2009 and 13.3.2009.
2. Mr. Anil Mittal and Manish Jain appeared on behalf of the applicants; Mr. U.N. Tiwari had represented the contesting respondent, the Delhi Transport Corporation. Records also show that in the earlier W.P., two individuals had got themselves impleaded. They have filed counter reply but no separate arguments had forth come from the said additional respondents, who are colleagues of the applicant. For convenience we have referred to documents produced in the earlier writ petition, while dealing with the matters.
3. The applicants feel that in the matter of adjudging seniority as between thirteen Traffic Superintendents (now known as Manager (Traffic) who had secured appointment simultaneously in the DTC in the year 1987, the employer has bungled in applying an acceptable principle and since the irrationality persists, necessary directions are warranted so as to rectify the defect and their fundamental rights should be so upheld. Although Annexure N had come to be issued on 29.1.2002 ( which is under direct challenge here) which advised the applicants of the decision of CMD that in my view it is too late to change the seniority, already decided. The applicant had been agitating thereafter, undaunted. Seniority position would be crucial in determining the upward progression in career, and according to the applicants, although the issue is being agitated for over a decade, no satisfactory steps were forthcoming. This constrained them to seek extraordinary jurisdiction of the High Court.
4. In fact there is difference of opinion as between the applicants in the two original applications, as to how the fixation ought to have been carried out, and it was, therefore, in the fitness of things that they had come up by way of two different petitions. We may refer to the facts in brief so as to better appreciate the bone of contentions. The stand of the DTC is that the issues as far as they are concerned are settled, and a belated attempt to re-open a closed issue hardly has any justification.
5. Twenty vacancies of Management trainee officers had been notified by the DTC on 29.11.1985. The proposal was to recruit personnel proficient in different fields, train them and thereafter absorb them to various departments, to be designated accordingly. From over 400 applicants, twenty-two persons had been selected, and letters offering temporary appointment as Trainee Officers on consolidated stipend had been issued on 13.6.1986. Candidates were required to join latest by 1.7.1986. They were to undergo training for about 66 weeks. It is not disputed that the thirteen persons, including applicants and private respondents had joined within the time stipulated. All of them had successfully completed the training. Every one of them had been thereafter conferred with temporary appointment on a regular pay scale. Probation period had been noted as one year. The order is dated 23.9.1987, and the upper date limit for joining the service was 30.9.1987. It is submitted that the seniority list of the officers had not been published at that point or any time later, and this is one of the Central themes in the application.
6. Mr. Anil Mittal, appearing for applicants in OA 806/2009 submits that one stipulation in the letter dated 13.6.1986 might be crucial. It is about the qualifying marks. This he points out was in line with the text of the advertisement. The candidates were mandatorily to appear in a test, after the training. In case of failure, the memo. warned that the training was liable to be extended, with further option to the DTC to terminate the appointment. If the candidate was not adjudged as making up to the standard, absorption could be expected only to the next lower post. These, according to the counsel sufficiently indicated the importance of the test, as the real entry point of the candidates to the cadre. Therefore, whatever be the earlier position, and whatever can be the date of entry, it would have been fit and proper that the rank obtained in the test after conclusion of the training was to determine the seniority position.
7. But before going to the other aspects, as pointed out by the applicants in the connected case, and as highlighted by the DPC, the arguments in the above line forgets the inherent defect the proposition might have. The Memo. (Annexure A) dated 13.6.1986 only referred to the requirement to obtain qualifying marks fixed by the DPC. Thus only a minimum alone had been prescribed, and the test was obviously, therefore, not competitive in nature, but only one intended to measure the level of proficiency.
8. We find that the situation as above presented cannot be overlooked. Therefore, a fixation of seniority position on the basis of marks obtained in the test, after the training could not have been possible to be accepted as a criterion for assessing seniority. If that be the case, we may assure that the two sets of applicants are identically situated in their effort in attacking the position of seniority as presently being followed.
9. The applicants have disclosed in the OA their knowledge that in the instant case the yardstick adopted for assessment of seniority was the dates of birth of the competing candidates. In fact, as early as during 1994, the applicants had been informed about the position of seniority as had been assigned to them in the cadre. The recitals in the first paragraph of Annexure B dated 23.9.1987 issued by the DTC was in the following terms.
The following persons are hereby offered the temporary appointment to the post of Traffic Superintendents on basic pay of Rs. 650/- in the Scale 650-1200. Thirteen names had been given. Ist applicant is no. 10 there. The 2nd applicant is item 12. The Ist applicant in OA 821/2009 is item 11 and name of A.K. Sinha is the last entry in the list, who is the 2nd applicant in the OA. Therefore, it boils down that the last four persons had been agitating that position of seniority urging that seniority should have been based on some other concrete principle. That they were the youngest, being only an accident could not have had relevance in adjudging the seniority, especially when, from open market, a selection was being carried out, on the basis of minimum qualification prescribed. Their interse merit had been assessed by a process of interview, and methods followed by all public sector enterprises also were to be followed. Regulations of DTC also were to be interpreted in their favour.
10. In the appointment order, which followed AnnexureC, dated 1.10.1987, sequence of names given earlier had been followed. The appointment was shown as effective from 5.10.1987. The first request requiring information about the position of seniority had been submitted only on 13.5.1994 (Annexure D). She had been promptly informed that the position is 9 (Annexure E). To the next query also an answer had come by way of Annexure7 dated 19.9.1994 that the age of the individual is the criteria adopted for deciding seniority.
11. Applicants have made reference to the profuse representations submitted thereafter, but it was evident that the Corporation was adhering to their stand. The applicants had not at that time thought of resorting to any constitutional remedies to challenge the position. But they had occasion to re-agitate their claim when they found that in respect of next batch of Managers (Traffic) the seniority had been assigned on the basis of the position obtained by the candidates in the selection proceedings. On a plea that her representations of 1995, 96 etc. were yet to be disposed of, and pointing out the yardstick employed vis-`-vis the junior batch had been altogether different Durgesh Nandini had represented on 5.1.1998 requesting for appropriate orders on the claims. She had highlighted the practices followed by other public sector enterprises. Also an argument had been put up to the effect that the seniority position of her batch had never been notified as required by Regulations 5 and 8. The Rules, according to her, obliged the DTC to determine and notify the position of seniority as respects officers who had joined service on the same date. This was to ensure finality.
12. By Annexure N, she had been informed that in the view of the Chairman and Managing Director, it was too late to change the seniority already decided. Impliedly the stand was reiterated that the seniority duly had been fixed earlier. The communication is dated 29.1.2002. The applicants had waited for some years, before finally resorting to the writ petition.
13. The merits of the contentions could be examined at this juncture. The argument is that the initial merit as assessed by the interviewing Committee was relevant in any case, and when the materials were available DTC erred in conferring seniority going by the date of birth.
14. The second point urged is that Regulations laid down in clear terms the procedure to be followed in the matter of seniority, and when once it was settled, it should have been notified to have binding effect. This had never been done.
15. The third point canvassed is of the discrimination. When the junior batch of 1989, and also a senior batch of officers had been conferred seniority position on the basis of performance assessed in the selection process, it was inconceivable nor was it explained as to why and under what authority, different parameters were brought in. If not biased, if certainly would have been favoritism.
16. Mr. Tiwari in reply had invited our attention to the notification inviting the applications, and pointed out that in assigning seniority of the batch concerned, any other method than that had been adopted could have been characterized as arbitrary. He asserts that the seniority had been fixed early in their career, and it was not as if they were not aware of the principle followed. In respect of other selections, parameters could be applied in homogenous manner, without there being blame of irrationality. With reference to the averments in the counter statement it is submitted that all aspects had been taken notice of by the competent authority. According to him, it was rather an indiscretion to allege bias or favoritism, when the applicants were fully aware that no body at the helm of affairs at any point of time had any axe to grind. The belated writ petition was experimental if not a speculation.
17. We may examine the contentions and the situations, as the area of dispute has been brought to a narrow field.
18. In respect of an earlier selection to the category of Assistant Traffic Superintendents held in 1978, it is submitted that a serious contention supplying full details has not been raised. But it was to a lower post, and the methodology adopted was never challenged. It is also not relevant. Even if merit might have been the yardstick, it was a selection to a single post, by candidates who were equally situated in matter of qualifications. That again was the case in the selection of Traffic Superintendents in the year 1989 as well.
The qualifications prescribed were similar in all respects, and assignment of seniority on the basis of marks obtained in the selection did not pose a problem. However, the selection of 1986-87 was unique and dissimilar from the other two, and close attention required to be bestowed so as to avoid a criticism that there was arbitrariness in assigning seniority.
19. Mr. Tiwari points out that the post notified was Management trainee; and not a specific post. A person with a first class degree in Mechanical Engineering, Automobile Engineering, Electrical Engineering or Civil Engineering could have responded. Likewise, a fellow of Charted Accountancy or cost and Works Accountancy was eligible to apply. A post graduate with first class in Arts, Science or Management as well could have responded to the selection. After initial interview, they were to be taken in as trainees. On the conclusion of the training if they cleared a test, they could have been considered for appointment as management trainees. The notification, therefore, had specifically made it clear that applications were being invited for Management Trainees for Repairs and Maintenance, Material Management, Traffic Operations, Audit and Accounts, and General Administration.
20. An interview was to precede the preliminary selection. The traits to be assessed with respect to different groups were dissimilar, thus making it impossible to apply a general standard/norms or yard stick. Four hundred candidates were to be interviewed over a period of a couple of weeks. The interviewing Board was also not always the same; exigencies required that persons who were to interview the candidate at times changed. Therefore, the marks secured by the candidates, could not at all have been a measure vis-`-vis their calibre and merit. Further, at that point of time, there was no requirement for assigning seniority, as they were to be accommodated for training, and their entry to the organization was contingent on other factors.
21. These features as presented are not disputed. At this distance of time, what is expected of us is only to see whether there were violent violations of any specifically laid down norms. It has to be assumed that the methodology to be employed for assessing the suitability of the candidates might have been discussed earlier, by the Committee, and before the selection. Perhaps as between engineering hands, there could have been assessment of merit possible with some common parameters, but the same would not have been basically applicable to an accounts person, or management graduates, who might have been looking forward to a post of general administration.
22. Therefore, the selection might have been of the best persons from the respective faculties, and twenty two persons were earmarked for training. Ultimately only 12 or 13 persons had completed the training, and came out successful after the test. It was only after these processes that all of them by a common order had been conferred appointment from 5.10.1987.
23. Although supporting papers have not forth come the preliminary steps and the appointment order indicate that there was a conscious decision to treat the senior most in age, as the first person in the table of seniority. Even if it is suggested that it is madness, we have to observe that there is a method in the madness, so as not to hurt anybody or block the chances of promotion by favoring the junior most to come to the first position. On the available materials, and taking note of the diversity of candidates to be selected, this, we feel was an acceptable, as well as reasonable, method employed by the DPC. Therefore, we hold that the assignment of seniority is not hit by arbitrariness.
24. The second argument is on the basis of Regulations 5 and 8 of the DRJA Regulations. Rule 5 prescribes that in matters of direct recruitment, order of merit is to be the criterion. Regulation 8 refers to a duty to notify the seniority for the purpose of general information. The contention is that these were not observed, and the legal position will be that the seniority as assigned should be considered as provisional, and not binding on the applicants.
25. In view of the discussion as made above, we do not think that there is intrinsic merit in either of the arguments. Merit could be assessed as between similar candidates, and could be applied only in such a selection. The notified selection of 1986 had its own characteristics. Mr. Mittal, thereupon submits that even as late as in the year 2000, the Chairman had occasion to observe that a notification about the seniority of 1986 batch is not seen to have been published. But that does not lead us anywhere. As early as in 1994 the inquisitive persons among the group were told about the criterion followed, and the definite position of seniority, that were assigned to them, with reference to records. Such records might have been there, they were very much acted upon. The applicants cannot dump all responsibilities on the respondents to come with materials, when they had been sitting on their claims for decades together. Persons who might have deliberated on the issues at that time might have been dead and gone. The DTC is a vast organization, having more than ten thousand persons on their pay roll. The applicants claims as presented now could be characterized as stale in these context. The most we can say about Annexure N is that the choice of words could have been happier, but the cold nature of the message well fitted to the situation.
26. As regards adoption of different yardsticks in different selections, we had occasion to deal with the contention in a different context, earlier. But we notice that they were selections confined to specific posts and recognition of merit as recorded by the interview board would have been a simple and straight forward process. We find from the records that it had been specifically noted by the CMD that while adopting the method in the year 1989, it may not be necessary that the past cases are to be re-opened. There is nothing untoward or arbitrary in the decision. It is how administrative machinery works, and this per se cannot amount to an instance of discrimination. Such a contention needs examination with reference to all attendant factors.
27. The sum total of the discussion, therefore, leads us to conclude that the applicants have not made out a case for interference or grant of relief. Therefore, we are not directly answering the issue, as to whether the challenge was belated and any of them were lethargic. Like wise, since we are not upsetting the current seniority list, in operation, we do not find it necessary to answer the objection as to whether the applications were defective for non-joinder. These aspects have become really non issues.
28. The two T.As are dismissed. Parties are to bear their respective costs.
Copy of this order be placed in TA 821/2009.
( Shailendra Pandey ) ( M. Ramachandran) Member (A) Vice Chairman (J) sk