Central Administrative Tribunal - Delhi
Shri Pradeep Kappor vs Municipal Corporation Of Delhi on 5 August, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI TA NO.1173/2009 New Delhi, this the 5th day of August, 2010 CORAM: HONBLE MR. SHANKER RAJU, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) 1. Shri Pradeep Kappor, S/o Shri S.K. Kapoor, R/o A-J, 63-B, Shalimar Bagh, Delhi 2. Shri Brahma Nand, S/o Late Shri Nathu Singh, R/o B-2/415, Yamuna Vihar, Delhi 3. Shri Vinod Kumar Vats, S/o Shri M.S. Vats, R/o C-34, Street No.4, Mahendru Enclave, Delhi 33 4. Shri Sanjeev Kumar Verma, S/o Shri Nepal Singh, R/o H-172, Sector 12, Pratap Vihar, Ghaziabad 5. Shri Ravi Kant, S/o Late Shri Chandra Prakash, R/o 29, Akash Kunj, Sector-9, Rohini, Delhi 6. Shri Rajesh Kumar Sharma, S/o Shri D.S. Sharma, R/o B-5/158, Yamuna Vihar, Delhi Applicants (By Advocate : None) versus 1. Municipal Corporation of Delhi, Through its Commissioner, Town Hall, Chandni Chowk, Delhi 2. The Commissioner, Municipal Corporation of Delhi, Town Hall, Chandni Chowk, Delhi 3. Director (Personnel), Municipal Corporation of Delhi, Town Hall, Chandni Chowk, Delhi 4. Engineer-in-Chief, Municipal Corporation of Delhi Town Hall, Chandni Chowk, Delhi Respondents (By Advocate: Shri Alok Singh) O R D E R By Dr. Veena Chhotray, Member (A):
The T.A. 1173/2009 has arisen out of the Writ Petition (Civil) No.2568 of 2007 transferred vide the Delhi High Court Order dated 31.03.2009. Considering that this is a case pertaining to the year 2007 and any further delay in the decision would not be in the interest of justice, the matter is being decided under Rule 15 of CAT (Procedure) Rules, 1987. However, while passing this order the submissions made by the applicant in the OA as well as in the rejoinder have been duly considered.
The applicants, 6 in number, are the Laboratory Staff of various ranks in the Technical Laboratory under the Respondent-Corporation MCD. Through this TA they are challenging the Resolution No.896 dated 05.03.2007 passed by the MCD and praying for issuance of a writ of certiorari quashing the same as illegal and unconstitutional. Further a writ of mandamus has been sought directing the Respondents for declaring the Technical Laboratory as independent to the Engineering Department of MCD and functioning under the supervision and control of Chief Vigilance Officer, MCD. The TA also seeks a direction for not appointing employees and officers of the Civil Engineering in the Lab and only appoint and post specialized officers as per the Recruitment Rules. As an omnibus clause any other order as deemed fit and proper in the facts and circumstances of the present case and in the interest of justice has been prayed.
2.1 The brief facts of the case are that the Technical Laboratory has been functioning under the MCD since 1957-58. As per the averments in the TA, the applicants had been appointed in this Laboratory in different capacities as per the Recruitment Rules and have been working there for the last several decades. The Recruitment Rules for the Laboratory Staff are stated to have been framed in the year 1973. The applicants are aggrieved at the Respondents decision vide the Repopulation No.896 dated 5.3.2007 by which while restructuring and strengthening the Laboratory, they have been totally eliminated from the Non-Engineering Laboratory staff and instead have decided all the posts to be filled up from officials of the Engineering Department. As regard the Laboratory staff, it has been decided to utilize them in other Departments under the MCD. This is under challenge in the instant TA.
2.2 It is the case of the applicants that the passing of the aforesaid Resolution is a classic case of non-application of mind on the part of the MCD. The basic objection raised is that by this Resolution, the object of establishment of a Technical Laboratory for independent testing of materials stand defeated by handing over the same to the Civil Engineering Department which happens to be also the executants. As per the averments made in the TA, the impugned decision has been taken because of the influential engineering lobby that had prevailed at all levels. To reinforce their stand, the functioning of the Laboratory of the CSIR such as the CRRI, NCCB, CBRI, RTC, NTH which are not manned by the officials of the Engineering Department has also been cited.
2.3 The above Resolution has also been challenged on grounds of alleged violation of Articles 14 and 16 of the Constitution of India as the applicants, who had been recruited in accordance with the Recruitment Rules have been thrown out without any valid reason. It is also the contention of the applicants that admittedly their performance had been outstanding and there has not been any aspersion by the Respondents on that account. The competence of the Respondents-Corporation has also been questioned on the ground of the said Resolution having been passed by a Care Taker House.
3.1 On behalf of the Respondents, a detailed counter affidavit has been filed. It is their stand that the reorganization and strengthening of the Technical Laboratory has been done for its smoothing and efficient functioning. The main contention of the Respondents is that during the last 25 years the Lab had been running in a very shabby condition with extremely dissatisfactory functioning. It is also stated that the quality control had taken an utter nose-dive.
Explaining the background of the Resolution in question, it has been stated that on the matter being brought to the knowledge of the then Commissioner MCD, he made a surprise inspection along with the Director of Vigilance and the Chief Engineer concerned and it was observed that there was no proper system of testing machines / equipments and materials brought as samples for testing. Besides this, most of the samples tested in their presence were found below specification. It is also stated that proceedings for major penalty had been initiated against all the officials from Technical Assistant to the Director. Further it was decided that henceforth Municipal Lab will be headed by Superintending Engineer and other Technical subordinate staff from the Engineering Wing.
It is the stand of the respondents that since then there has been tremendous change in the working of the Lab and effective steps have been taken to modernize the Lab at par with international standards. The learned counsel for the respondents would submit that was no valid basis on the part of the applicants to attribute motives to this decision of the respondents which had been taken only in the interest of improving the efficiency of the Organization. The learned counsel would also bring it to the notice of the Tribunal that the same Laboratory was now striving to obtain ISO 9001 certification.
3.2 The contentions in the TA regarding taking over of the Laboratory by the Engineering staff has been rebutted with the averments that since 2004 there has been no Director and the Laboratory had been working under the control of the Superintending Engineer. It is also stated that right from its inception, the Technical Laboratory has been working under the administrative control of the Municipal Engineer cum Engineer in Chief. Para-10 of the counter affidavit has distinguished the work done in the Municipal Lab from that in the other Laboratories cited by the applicants. It is stated that whereas the Laboratories like CRRI, NCCB and CBRI are mainly dedicated to research work; in the Municipal Lab the work of testing of civil engineering material is carried out besides the job of mix designing is also carried out, which does not amount to research. As per the Respondents, this comparison is totally misleading. On the other hand, the practice prevailing in the Technical Lab in the Departments such as CPWD, PWD, DDA & NDMC where also the objective is to ascertain the physical properties of different categories of material being used for civil engineering projects had been cited in support of the decision. As the competence of the House to pass the Resolution and the allegation of its having been passed without following the prescribed procedure has been rebutted. As regard the legitimate claims of the applicants, it is stated that the promotional avenues of the applicants would be adhered to in accordance with the Govt. of India guidelines i.e. ACP Scheme etc. 3.3 The learned counsel for the respondents would submit about there being absolutely no justification for judicial intervention in the present case since the subject matter fell within the prerogative of the executive. In support, the learned counsel would also cite the decisions of the Apex Court in K. Rajindran & Ors vs. State of Tamil Nadu and Ors {Supreme Court Service Rulings Vol.1 page 48}. As per the learned counsel, the applicants could have no valid grievance since their service interest had been protected and they were being deployed in material management.
4.1 It is no more res integra that determination of conditions of service of employees is within the legitimate domain of the State and its instrumentality. Further, the scope of judicial review in such matters as in the field of policy is extremely limited. To cite only a few by way of illustration : in P.U. Joshi & Ors vs. Accountant General, Ahmedabad & Ors {(2003) 2 SCC 632}, the Apex Court had observed as follows:-
Para 10. xxxxx Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation, abolition, prescription of qualifications and other conditions of service including avenues of promotion and criteria to be fulfilled in such promotions pertain to the field of policy within the executives discretion and jurisdiction of the State subject of course to the limitations and restrictions envisaged in the Constitution of India. It was further held There is no right in any employee of the state to claim that rules governing conditions of service should be forever the same as the ones when he entered the service for all purposes and except for ensuring or safeguarding rights and benefits already earned, acquired or accrued at a particular point of time a Government servant has no right to challenge the authority of the State to amend, alter or bring into force new rules relating to an existing service. Again in Union of India vs Pushpa Rani & Ors {(2008) 2 SCC (L&S) 857}, while reiterating the above settled principle of law with regard to such matters falling within the executive domain, it was observed that what steps should be taken for improving the efficiency of the administration is also the preserve of the employer. However, this is not construed to mean a complete foreclosing of the scope of judicial review in such matters. The Apex Court had also observed in this very case as under:
Power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or vitiated by malafide xxxxxxx It would also be appropriate at this point to state the general proposition of law about fair play and reasonableness being the touchstone of any administrative action. As was observed by the Apex Court in Man Singh vs State of Haryana & Ors {(2008) 7 SCALE:
xxxxxx. Any act of the repository of power whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair minded authority could ever have made it."
4.2 In the context of the claims raised in the instant TA, the law on the subject may be summed up by stating that even though determining the service conditions of its employees or bringing any change by way of restructuring the cadres or taking any steps for improving the efficiency of the Organization is within the legitimate domain of the executive; however, such an action must satisfy the touch-stone of reasonableness and fairness. Even more importantly the actions must be in accordance with law and any allegation of violation of statutory or constitutional provisions or any patent arbitrariness would bring such actions within the purview of judicial review.
5.1 A perusal of the impugned Resolution No.896 dated 5.3.2007 (Annexure N/3 pages 30 33 of the paper book) reveals that it pertained to the subject of Restructuring of Technical Laboratory of Engineering Department. This resolution had been passed in supersession of the earlier Resolution of the MCD No.210 dated 22.7.2002. The Resolution is a detailed one and contains references of discussions in a meeting chaired by the Honble Lt. Governor, Delhi in August, 2005 stressing the need to strengthen the mechanism of internal quality assurance at different levels of the Organization. Further, the Resolution had been passed pursuant to a proposal submitted by the Commissioner, MCD vide his letter dated 21.2.2007 and further recommendations by the Standing Committee vide its Resolution No.637 dated 22.2.2007 before the passing of the final Resolution by the Corporation. The objective of the entire exercise is stated to be to improve the functioning of the Laboratory which had been set up for carrying out physical quality check of the raw Civil Engineering material and the finish product of the Civil Engineering contract works. Manifold increase of work and similar practices prevailing in Departments like CPWD, PWD, DDA and NDMC have also been cited.
5.2 It has also been shown that as against the sanctioned strength more personnel had been working at different levels. Under the restructuring exercise, the number of posts at various levels was enhanced by merging these posts with those in different ranks of the Engineering Cadre and it had been further augmented by bringing certain more posts from within the sanctioned strength of the Engineering Cadre only. A brief summing up of these details on the basis of the relevant Resolution is being reproduced as here under for the sake of clarity:
Existing Structure Revised Structure Post/Category Sanctioned Strength No.of persons actually working Category No. of posts Remarks Director (Tech) 1 - S.E.(Civil) 1 The existing sanctioned post of Director (Tech) will be converted to the post of SE(C) STO cum Dy. Director 2 2 Ex.Engr (Civil) 3 2 sanctioned post of Dy. Director (Tech) will be merged with the post of Ex.Engr (C) and one post will be filled from the overall sanctioned post of Executive Engineer (C) in Engineering Deptt.
Technical Officer 6 8 Asstt. Engr. (Civil) 9 6 sanctioned post of Tech Officer will be merged with the post of A.E.(C) and 3 posts of AE will be filled up from the overall sanctioned post of AE(C) in Engineering Deptt.
Lab Assistant 6 3 Junior Engr (Civil) 18 These posts will be filled up fm the overall sanctioned post of JE (C) in Engineering Deptt.
Lab. Bearer 8 - Group D Employees 36 These posts will be filled up from the overall sanctioned post of Group D employees in Engineering Deptt.
With regard to the present incumbents constituting the Laboratory personnel at various levels, it was stated that they would be utilized in Health Department/other Departments.
5.2 The TA has not questioned the competence of the Respondents to make these changes except as an averment of the Resolution being passed by a Care Taker House, which need not be relied upon in view of its rebuttal by the respondents. Further, as the entire exercise was stated to have been carried out with a view to improve the efficiency of the Organization to achieve its objective better, after deliberations at various high level formations; we may also not have any reasons to quibble with the same. However, what we notice is that in this exercise which purports to be by way of restructuring and strengthening of the Laboratory set up, the existing Laboratory personnel find no place. On the other hand, in the new scheme of things all these posts are to be completely and exclusively manned by the officials of the Engineering Cadre. No justification about this vital aspect flows from this Resolution nor is there any indication of the matter having been deliberated by the Corporation before such a decision was taken.
5.3 The stand of the applicants is that their performance as such had not been faulted by the Respondents. In fact, this has been taken as a specific ground 15 (A) in the TA. The Respondents, of course, have in their counter affidavit tried to make it a case of mal-functioning on the part of the existing personnel, as revealed in course of the surprise inspection at the level of the Commissioner, which had also culminated in initiation of major penalty proceedings against the concerned officials. However, applying the test of a common prudent man acting reasonably the Respondents stand that the existing incumbents of the Laboratory staff had been indulging in mal-practices besides being incompetent; the same should have been properly reflected in the final decision of the Corporation.
5.4 There is another aspect too. The TA has contended that the Respondents had framed Rules for appointment of the Laboratory staff at various levels in the year 1973. Para-5 of the TA contains a comparative chart of the prescribed qualifications of Technical Officers and Technical Assistant vis-`-vis the Assistant Engineers (Civil) and Junior Engineers (Civil). The important point to note is that in the former along with an educational degree there is also a prescription for experience of a stipulated duration in the relevant field in a Laboratory of standing. It is the stand of the applicants that the present staff who are specialists of testing and had been working in the Lab for the last 20-30 years, are by this decision being thrown out of their legitimate filed and made to work in other Departments(Ground-I). The deployment of the Engineering staff not having the requisite experience of testing has also been challenged.
5.5 In their counter affidavit, the Respondents stand is that after the restructuring a lot of improvements have taken place in the functioning of the Laboratory adding modern machines, tools and plants have also been mentioned. However, there is no mention as to whether the rules for appointment of the Laboratory personnel have also been changed by the respondents. There is also no mention regarding the elimination of the Laboratory personnel completely under the new Scheme and switch over of manning by the Engineering staff. As is borne out by the detailed scrutiny vis-`-vis the relevant Rules in the foregoing paragraphs, we do not find the respondents action on these aspects satisfying the touchstones of the reasonableness as well as being in consonance with the statutory provisions.
5.6 Being guided by the law as laid down by the Apex Court in this regard, we do not propose to step into the shoes of the administrative authorities as to what constitutes best in the interest of improving the functioning of the Laboratory. However, we find the present case as one where as regards the treatment meted out to the applicants, there is a case for review. Resultantly, the OA is allowed to the limited extent of remitting the matter to the Commissioner, MCD (Respondent No.2) for a re-look at the decision insofar as it concerns the claims of the applicants, including, inter alia, the matter of relevant Recruitment Rules and the apparent unreasonableness of the diversion of the personnel recruited for this specialized job with prescribed qualifications being deployed else where. While doing this reconsideration, the Commissioner, MCD is directed to treat the averments in this TA as a representation and also take into account our observations in the body of this order. Further, the above directions are to be complied by passing a speaking ord