Central Administrative Tribunal - Delhi
Mr. Chander Shekhar vs Delhi Jal Board on 19 September, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 2493/2010 NEW DELHI THIS THE 19th DAY OF SEPTEMBER, 2011 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. KHUSHI RAM, MEMBER (A) Mr. Chander Shekhar, S/o Shri Daulat Ram, Dy. Chief Security Officer, Delhi Jal Board, Govt. of NCT of Delhi R/o Qr. No. 15, Type II, Block No. II, Delhi Jal Board Staff Quarters Water Works, Wazirabad, Delhi-110054. Applicant. (By Advocate Shri H.K. Mehra) Versus 1. Delhi Jal Board, Govt. of NCT of Delhi Headquarter, Varunalaya Building, Phase II, Jhandewalan, New Delhi-110055. Through its Chief Executive Officer. 2. Shri Jai Pal Singh, S/o Shri Suraj Mal Security Officer Delhi Jal Board, Govt. of NCT of Delhi C/o EE (E&M), Haiderpur Water Works, Haiderpur, Delhi. 3. Shri Pyare Lal Meena S/o Shri Mohan Lal Meena, Dy. Chief Security Officer, Delhi Jal Board, Govt. of NCT of Delhi Varunlaya, Phase II, Jhandewalan, Karol Bagh, New Delhi-110005. Respondents. (By Advocates Shri N.K. Pandey for official respondents, Shri S.S. Tiwari for private respondents) ORDER
Mr. G. George Paracken:
This is the latest in the series of petitions and counter petitions filed by the applicant spanning over a period of about 6 years alleging discrimination in the matter of assigning him seniority and granting him promotion from the grade of Assistant Security Officer (ASO for short) onwards, ignoring the relevant rules of reservation.
2. Brief facts of the case: The applicant belongs to SC category. He has been working as Assistant Security Officer (ASO for short) with the respondents since 10.10.1996. His name appears at Serial No. 9 of the Annexure `A seniority list of ASOs circulated vide letter dated 07.09.2001. The respondent No.2 belongs to UR category and respondent No. 3 belongs to ST category and they are at Serial Nos. 5 and 8, respectively of the said seniority list. The Respondent No. 3 was initially appointed as a Chowkidar with the Respondent No. 1 w.e.f. 24.02.1991. Thereafter, he was appointed as ASO w.e.f. 19.09.1994 on temporary basis. The next promotional post is Security Officer (SO for short) and the promotion to the same is to be made on the basis of seniority with due consideration of the reservation roster. The sanctioned strength of the cadre of SOs being only 04, the 13 Point Reservation Roster would apply and the seventh point has been earmarked for SC candidate. On 02.09.1997 when the post based roster came into operation, there were three persons occupying the post of SO. They were S/Shri Rangal Ram, D.P.S. Nagar and Ranbir Singh. The fourth post was filled up on 06.10.1999 by promoting Shri Zile Singh. On availability of three vacancies of SOs later, the DPC was held on 07.02.2003 to fill up those vacancies against the 5th, 6th and 7th points in the 13 point Model Roster. According to the applicant, even though he was fully qualified for promotion as SO, the respondent No. 1, without any reasons, filled up only two vacancies by promoting Shri Kartar Singh (SC) and Sbrj Vijender Kumar Rai (UR) against the point Nos. 5 and 6 in the roster (Annexure `E dated 21.03.2003). The next DPC was held on 12.01.2004 and as per its Annexure `F minutes, there was only one vacancy and it was to be filled up against Point No. 7 in the roster. As the applicant was found fit, his name was recommended by the DPC but the respondents did not promote him. The minutes of the said meeting reads as under:-
A meeting of the DPC consisting of the following officers was held on 12.01.2004 for considering promotion to the post of Security Officer:-
1. Director (A&P) : Chairman
2. C.S.O. (W) : Member
3. Dy. A& F.O ( W) : Member
4. AC (B) : Member
5. AO (B) : Member/Secy.
The DPC was informed that there are o4 sanctioned post of Security Officer in Bulk-Side of Delhi Jal Board in the grade of Rs.5500-175-9000/- and as on date o3 posts stand filled in, whereas o1 post is lying vacant which will go to SC category at roster point-7, as per post based roaster of reservation. It was also informed in the previous DPC, which was held on 07.02.03 for filling up the o3 vacant posts of Security Officer that out of 03 vacant posts of o1 post reserved for SC category which was kept vacant due to scarcity of staff in feeder grade of Asstt. Security Officer. Thus, the one vacant post can now be filled in by SC category.
As per provisions of the recruitment rules approved by the Corporation, the method of recruitment to the post of Security Officer is by promotion, failing which by direct recruitment. In case of promotion, Asstt. Security Officer with 03 Yrs Regular service in the grade are eligible for promotion to the post of Security Officer.
After having considered all aspects i.e. as ACRs Vigilance report, Integrity certificate, roster & seniority list etc., Sh. Chander Sekher, Asstt. Security Officer is found fit for promotion in order of their seniority/selection. The DPC, therefore, recommends the name of Sh. Chander Sekher (SC) S/0 Sh. Daulat Ram for promotion to the post of Security Officer in the grade of Rs.5500-175-9000/-.
3. Thereafter, two more vacancies have arisen and the DPC for this purpose was held on 12.01.2005. According to the Annexure `G minutes of the said DPC, three names in the order of their seniority only, S/Shri Jaipal Singh, S.P. Dalal and Chander Shekhar (applicant) were found fit and they were recommended for promotion. Subsequently, they were also promoted as SOs vide the Annexure `H order dated 27.01.2005. According to the applicant, neither the minutes of the said DPC meeting nor the appointment letters issued to him and two others indicate that the respondents have taken the reservation according to the roster point into consideration while recommending the aforesaid persons for promotion. His contention is that his name should have come first in the selected list of candidates at the 7th point in the roster meant for SC candidate. He has, therefore, made several representations dated 07.03.2005, 07.04.2005, 09.05.2005 and 04.07.2005 against the action of the respondents in not following the reservation as per the roster point. Finally, vide the Annexure-I letter dated 26.07.2005, the respondents informed him that Shri Kartar Singh (SC) who was promoted on 21.03.2003 to the post of SO has already been given the benefit of reservation available to the Schedule Caste candidate as per the roster and therefore, he is not entitled to avail the benefit of reservation. Since Shri Jaipal Singh and Shri S.P. Dalal were senior to him in the feeder cadre, his claim for seniority over and above them cannot be accepted. Again, the applicant made the Annexure`J representation dated 03.08.2005 requesting the respondents to reconsider the matter of his promotion against the Point No. 7 as per the roster reservation for the SC category. As there was no response from the respondents to the aforesaid representation, he has sent a legal notice dated 24.08.2005. When the respondent No.1 did not respond to his aforesaid notice also, he filed writ petition No. 19893/2005 before the Honble High Court of Delhi. The relief sought by him in the said writ petition was to direct the respondents to promote him w.e.f. 21.03.2003 and also to declare him as senior to Respondents 2 and 3. During the pendency of the said writ petition, the Respondent No.1 vide Annexure `L Office Order dated 01.02.2007, promoted him as SO on notional basis w.e.f. 21.03.2003 and placed him at Sl. No. 6 and the Respondent No. 2 at Sl. No. 8 of the seniority list of SOs circulated vide Annexure M dated 22.06.2007. He was also promoted as Deputy Chief Security Officer (DCSO for short) on ad hoc basis vide Annexure O Office Order dated 07.01.2008. On that basis, the aforesaid writ petition was dismissed, vide Annexure `N judgment dated 13.08.2007. The relevant part of the same reads as under:
15. The case in hand is not of administrative error on the part of the respondent DJB in neglecting/overlooking the petitioner for promotion, but of duly considering the petitioner for promotion but not promoting him on account of administrative exigencies. Thus on the principle of No work, No pay, the petitioner cannot claim entitlement to the benefits of promotion with effect from 21st March, 2003.
16. It is also a settled position of law that then Court ought not to interfere with administrative actions in exercise of its powers of judicial review under Article 226 of the Constitution of India unless the impugned action is tainted with malafides, is based on extraneous considerations, is arbitrary or it amounts to abuse of power or what is sometimes called, fraud on power. The trend is that of judicial restraint in interfering with administrative actions unless at least one of the conditions as mentioned above, is satisfied. However, since none of the aforestated conditions are found to exist in the present case, this Court does not deem it appropriate to exercise its discretion and interfere with the decision of respondent DJB in not granting consequential benefits to the petitioner w.e.f. 21st March, 2003 i.e. the date from which he was granted notional promotion.
17. In view of the above discussion, as also the position of law, the present writ petition is dismissed as being devoid of merits. No order as to costs. The said order was followed by the Annexure `O-1 order dated 03.06.2010 allowing the applicant to continue upto 30.10.2010 or till such time the post was filled up on regular basis.
4. Aggrieved by the aforesaid orders of promotion of the applicant as SO and DCSO, the respondent No. 3, namely, Pyare Lal Meena filed Writ Petition No. 64477/2007 before the High Court of Delhi seeking a direction to revert the applicant from the post of SO to that of ASO. He challenged the promotion of the applicant on the ground that he (Respondent No. 3) belongs to ST category and, therefore, he should have been promoted to the post of S0 w.e.f. 01.04.2002 when the first SC candidate retired from service. During the pendency of the said writ petition, the Respondent No. 1 issued the impugned Office Order No. 277 and 278 dated 07.11.2008 promoting the respondent No. 3 to the post of S0 giving him notional promotion w.e.f. 21.03.2003 and canceling the Office Order No. 58 dated 01.02.2007 whereby the applicant was given notional promotion w.e.f. 21.03.2003. The respondent No. 1 has also issued a Circular dated 10.11.2008 along with the revised provisional seniority list of SOs whereby the respondents 2 and 3, namely, Shri Jaipal Singh and Pyare Lal Meena and another Om Pal Singh were shown senior to the applicant. By the said seniority list, the final seniority list of SOs issued on 22.06.2007 was once again re-cast as under:
Sl.No. Name Category SC/ST, if any Date of promotion As Security Officer 1. Sh.Ranbir Singh UR 17-3-1997 2. Sh.Kartar Singh SC 21-03-2003 3. Sh.Vijender Kr. UR 21-03-2003 4. Sh. Pyare Lal Meena ST 21-03-2003 5. Sh. Om Pal Singh UR 27-1-2005 6. Sh. Jai Pal Singh UR 27-1-2005 7. Sh.Chander Shekhar SC 27-1-2005
5. Against the aforesaid orders of the respondents, the applicant made the Annexure V representation dated 20.11.2008 to withdraw said circular dated 10.11.2008 as the Applicant has already filed writ petition No. 8209/2008 before the Honble High Court of Delhi challenging the Office Orders Nos. 277 and 278 dated 7.11.2008 and the circular dated 10.11.2008. The Respondent No.1 did not respond to the said representation but writ petition was disposed of on 21.11.2008 vide Annexure `W judgment and the relevant part of the same is as under:
The petitioner is working as Deputy Chief Security Officer in Delhi Jal Board. He is aggrieved by two orders bearing No. 277 and 278 passed by respondent No.1 on 7.11.2008. The petitioner is further aggrieved by a circular dated 7/10.11.2008 issued by respondent No.1 inviting objections against a seniority list of Security Officers of Delhi Jal Board within 15 days time. The petitioner is stated to have filed his objections against the seniority list circulated by respondent No.1 vide impugned circular dated 7/10.11.2008 (Annexure-5 at page 86 of the paper book). The petitioner is, in fact, aggrieved by wrong fixation of his seniority in the cadre of Security Officers and apprehends that he may be demoted by respondent No.1 and according to him in case if he is demoted then the petitioner is likely to suffer great prejudice.
Mr. Nishakant Pandey, Advocate is present on behalf of respondent No.1.
This writ petition has been taken up for final disposal at this stage itself because counsel for both parties have agreed for passing of a consent order in the matter.
The petitioner as on date is working as Deputy Chief Security Officer in Delhi Jal Board (respondent No.1 herein). He has not been demoted by respondent No.1 from the post of Deputy Chief Security Officer till date. The grievance of the petitioner in this writ petition is about wrong fixation of his seniority in the cadre of Security Officers. Respondent No. 1 vide impugned circular dated 7/10.11.2008 (Annexure 5 at page 86 of the paper book) has invited objections from the affected persons against seniority list circulated therewith. The petitioner has filed his objections to the provisional seniority list and his objections are yet to be decided by respondent No. 1. The apprehension of the petitioner is that he may be demoted by respondent No. 1 from the post of Deputy Chief Security Officer to a lower post. Mr. Nishakant Pandey, learned counsel appearing on behalf of respondent No. 1 says that the petitioner shall not be demoted from the post of Deputy Chief Security Officer until decision on his objections against the provisional seniority list and for a period of four weeks thereafter to enable the petitioner to exhaust his legal remedy in case he is still aggrieved by the decision of respondent No.1 with regard to determination of his final seniority in the cadre of Security Officers. In view of this statement made by the counsel for respondent No.1, counsel appearing on behalf of the petitioner says that he does not want to press the present writ petition in case the respondent No. 1 is directed to decide his objection against provisional seniority list expeditiously and not to demote him till expiry of four weeks from the date of decision of his objection.
In view of the above and having regard to the submissions made by the counsel for the parties, the respondent No. 1 is directed to decide the objections of the petitioner against the provisional seniority list in the cadre of Security Officers as expeditiously as possible and should not demote the petitioner from the post of Deputy Chief Security Officer presently held by him till expiry of four weeks from the date of decision on the objections of the petitioner. Needless to state that the respondent No. 1 shall communicate he decision on the objections of the petitioner against the provisional seniority list to him immediately on decision of the objections.
6. Thereafter, vide the impugned letter dated 16.02.2009, the Respondent No.1 considered the Applicants objections but once again held that their earlier orders No. 277 and 278 on 07.11.2008 and Circular dated 07/10/11/2008 were in order. The relevant part of the said letter dated 16.02.2009 is as under:-
With regard to appointment of Sh.P.L.Meena in the grade of Chowkidar, it is intimated that his appointment order was issued on 24-7-1991 after having been found him, inter alia, suitable for the post of Chowkidar by the then DPC (Selection Committee) keeping in view of the then Recruitment Rules, Reservation Roster etc. Moreover, the Committee may have considered Para-Military force personnel also suitable in addition to NCC/Home Guard personnel, as they are well trained (even better) than the candidates of NCC/Home Guard and therefore the Selection Committee might have assessed him suitable/capable candidate for appointment/holding the post of Chowkidar. Therefore, your such complaint at a very belated stage when he stands senior to you in the grade of Security Officer is not justified.
As regards the complaint pertaining to the appointment Shri PL Meena as Assistant Security Officer is concerned, he, inter alia, being departmental employee and undergone appropriate training programme /s in police force and having educational qualification etc as specified in the RRs of ASO, he was again appointed on 19-09-1994 against direct recruitment quota on the recommendation of the Selection Committee. Shri Meena was not recruited on promotion basis in the grade of ASO as complained by you.
Lastly, with regard to your representation towards objections relating to your placement in the provisional seniority list of Security Officer, it is intimated that you are not aware of the present (Changed) scenario. While examining representations a writ petition filed by Sh.PL Meena, ASO it was found that a vacancy meant for ST community was carried forward and could not be operated upon while implementing new 13 point post based roster in year 1997. The said ST Vacancy related to year 1991and as per minutes of the DPC held on 16 May 1996, since the said vacant post ST could not be filled for consecutive three years, it was proposed to be filled through exchange of vacancy by a SC Candidate who was facing vigilance enquiry then & could not be promoted due to non-exoneration. So, in order to take remedial measures a review DPC was held on 30-9-2008 which reviewed minutes of all the DPCs for recruitment year 1999 and onwards in the light of Recruitment Rules, Reservation Rosters, guidelines of Government of India issued from time to time etc. and recommended revised select lists for various recruitment years as per Appendix to this letter.
It is not observed that there was a carried forward point meant for ST community and could not be operated upon while implementing new 13 point post-based roster in place of 40 point reservation roster in year 1997 as per guidelines issued vide G.I. Deptt. of Per.& Trg OM No. 36012/2/96-Estt (Res) dated 02-07-97. So, consequent upon the reviewed select list, Sh.P.L.Meena was promoted against the above carried forward post of ST against point No.6 of meant for General category of 13 point post based roster so as to give suitable share to the said community. It is further intimated that since there was no vacancy available for SC category in year 2003, your notional promotion OO No. 58 dt.1-2-07 was not found justified and was withdrawn. Further, Review DPC also reviewed the minutes of the DPC dt 12-1-05 and recommended S/Sh. Ompal Singh, Jai Pal Singh and Chander Shekhar (SC) against 3 vacant posts ( 2UR & 1 SC) worked out for the same recruitment year in order of their seniority in the feeder grade of ASO. Post based roster is a tool to assist administrative departments to fix quota for various communities and the concerned administration has to see at the time of each occasion (recruitment year) whether quota of each community is represented in appropriate ratio as per their entitlement by way of counting the persons belonging to each community.
In view of the above, your promotion order issued vide this OO No. 52 dated 18-2-05 is in order and your placement in the provisional seniority list issued on 10-11-2008 is also in order.
7. Thereafter, they have also issued the impugned final seniority list of SOs vide Memo dated 18.02.2009 showing the Respondent No.3 at Sl. No.4 and the Applicant at Sl.No.7.
8. The Applicant was again back in litigation by filing OA 610/2009 before this Tribunal challenging the decision of the respondent No.1 in the aforesaid letter dated 16.02.2009 and the final seniority list dated 18.2.2009. The CWP 6447/2007 (supra) filed by the respondent No. 3 was also transferred to this Tribunal and registered as TA 1016/2009. This Tribunal heard both the O.A. 610/2009 and the TA 1016/2009 together. The challenge of Shri Pyare Lal Meena (Respondent No. 3 in the OA) was against the promotion of the applicant (Shri Chander Shekhar) as SO overlooking his seniority in the feeder cadre of ASO. In OA 610/2009, the applicants contention was that his seniority issue was considered in CWP 19893/2005 and his seniority position over Respondent No. 3 has already been recognized and accordingly he was promoted as Deputy Chief Security Officer (DCSO for short) w.e.f. 07.01.2008. But by the proceedings dated 07.11.2008, the respondent No. 1 has unsettled the issue and he challenged the same vide WP No. 8209/2008 before the High Court of Delhi which directed the Respondents to dispose of his pending representation.
9. This Tribunal disposed of both TA 1016/2009 (supra) and OA 610/2009 (supra) by the Annexure Y common order dated 25.09.2009 and its relevant part is as under:
8. Of course, we have to notice that Mr. Meena had come to be appointed as Assistant Security Officer, earlier than Mr. Chander Shekhar and in normal course when a vacancy arose, he had precedence over the latter for being considered for promotion as Security Officer. When in its wisdom, Supreme Court had directed that a roster should rather function, taking notice of post based position in the place of the vacancy based position, and when a roster was so drawn up, Mr. Meena had no cause of legal injury or complaint to brood over, while working out the roster. Though an ST candidate as claimed by him, his chances for promotion were disrupted to his disadvantage. When everybody in unison submits that the principle to be followed is post based roster, the advantage and disadvantage of the system are to be equally borne or suffered right through. But there is no satisfactory reply given by the respondents, about the contentions raised by the applicant that resort to carry forward vacancies were impermissible as had been operated in the case at hand. The submissions made by the Delhi Jal Board in their counter reply on the issue could be extracted as hereinbelow:
That prior to the applicability of the 13 point based roster, promotions/appointments were made as per the 40 point vacancy based roster. This roster was running roster and the vacancies were filled as per the reservation points indicated for specific category. As per this 40 point vacancy based roster, a vacancy for ST candidate arose in the year 1985. But due to non-availability of eligible candidate for promotion in the feeder grade, the vacancy was carried forward to next subsequent recruitment years. Thereafter, one promotion was made in the year 1991 by promoting Shri Duli Chand Tyagi. Another vacancy was filled in 1996 by promoting Shri D.P.S. Nagar to the post of Security Officer. During this period, the vacancy meant for ST remained vacant and continued to be carried forward. Consequently, this vacancy was approved to be filled through an SC candidate by exchange of this ST vacancy. Accordingly, a DPC was held on 16.5.1996 for assessing suitability of two candidates, one post was unreserved and the other was for an SC candidate against the exchanged vacancy of ST. The DPC recommended Sh. DPS Nagar against the unreserved vacancy and the recommendations in respect of Shri Kartar Singh i.e. the senior most SC candidate was kept in sealed cover as he was facing RDA and a charge sheet for minor penalty had been issued to him. But since the individual was not exonerated, the recommendations were not opened and the vacancy meant for ST (exchanged to SC) remained unfilled. Thereafter, one more unreserved vacancy arose in February, 1997 against which Shri Ranbir Singh was promoted. Till then no ST candidate became eligible for promotion to the post of Security Officer. But, however, Chander Shekhar has attempted to establish that prior to the operation of the new roster a ST post if it was carried forward, could never have been exchanged with the SC person. He stresses on the position that after operation of the new roster all appointments/promotions are to be based on post based roster. Particular reference had been made to Govt. of Indias clarification of 02.07.1997. The Govt. had observed that the reserved vacancies are to be determined as afresh on the basis of post based revised rosters and are to be carried forward for future adjustments.
10. Pursuant to the aforesaid directions of this Tribunal in Order dated 25.09.2009, the applicant and others were heard personally by a Committee of officers constituted by the Respondent No. 1 on 27.01.2010, 13.04.2010 and 05.05.2010. The applicant once again presented the entire facts before the Committee vide his Annexure AA representation dated 27.01.2010 but it came to the conclusion that he did not raise any new facts and held that the final seniority of SOs issued on 18.02.2009 is in order and informed him and others accordingly vide the respondents impugned letter dated 22.07.2010, the relevant part of which is as under:
The matter was further discussed by members pointwise on the issue raised by Sh. Chander Shekhar in his representations dt. 27.01.2010, 13-4-2010 & 5-5-2010 and representations of P.L. Meena and Sh. Viveka Nand. As regards the objections raised by S/Sh. Vivekanand and Chander Shekhar against operation of 13 point post based roster the committee examined, whether the rules provided for the relevant chapters have been followed or not. The committee observed that while operating the point based roster for the post of Security Officer, one ST point was not carried forward by DPCs held earlier during the DPC of 2003, which was operated at that time, could not be considered by mistake. The committee examined the decision and rectified in the Review DPC held on 30-9-2008 as per the guidelines contained in G.I., Dept. of Per. & Trg., O.M. No. 22013/1/97-Estt.(D), dated the 13th April, 1998. The action taken by the review DPC is correct vide which the plotting of point based roster has been given placement as per the guidelines envisages on the concerned chapter. The ST point should have been carried forward with reference to the C&AG., Cir. No. 9/NGE/98 No. 108/NGE (APP.)3-97 dt. 23-1-1998, mentioned at Clarification No. 9 (b). The committee also observed that the objections raised against redrawn seniority, circulated on 7/10-11-2008, were also dealtwith properly and the objections raised by the individuals were also replied. Accordingly, the reviewed final seniority list dt. 18-2-2009 was finalized.
The committee observed that no new facts came to the notice of the committee. Some of the facts, raised by Sh. Chander Shekhar regarding applicability of SLP No. 24327/2005, it was not applicable in the year 2003, from where Sh. P.L. Meena has been given placement in the seniority list.
The committee therefore, disposed off the matter with a view that placement already decided vide final seniority list issued on 18-2-2009 is in order as per rules and regulations.
11. Thereafter, the applicant has filed the present O.A. As observed by the Delhi High Court in the judgment dated 21.11.2008 in CWP 8209/2008 (supra), the basic dispute is regarding fixation of the seniority of the applicant vis-`-vis the third respondent in the cadre of SO. The applicant has, therefore, questioned all the appointments/promotions so far made in the case of respondent No. 3 starting from his appointment as Chowkidar w.e.f. 24.07.1991 to his last promotion to the post of SO retrospectively w.e.f. 21.03.2003 vide order dated 07.11.2008, consequent order dated 07.11.2008 by which the applicant who was promoted earlier as SO w.e.f. 27.01.2005 was cancelled and the Circular dated 07/10.11.2008 of respondent No.1 showing the respondent No. 3 as Senior to the applicant in provisional seniority list of Security Officers. His present grievance is that the post of DCSO lying vacant since 01.07.2001 is not being filled up deliberately and his apprehension is that after finalization of the provisional seniority list as published vide Circular No. 7-10.11.2008 showing the respondent No. 3 as senior to him, he will be promoted to the said post on regular basis. He has, therefore, sought the following reliefs in the O.A:
In view of above facts and circumstances, it is, therefore, most respectfully prayed that in the interest of justice, this Honble Tribunal may graciously be pleased to quash/set-aside:
Order No. F-35/DJB/AC (B/Prom/SO/08/D-298 dated 16.2.2009 and final Seniority List of Security Officer dated 18.2.2009.
Office Order No. 277 dated 7.11.2008 issued by respondent No.1;
Office Order No. 278 dated 7.11.2008 issued by respondent No.1;
Circular No. F.35 (2)/DJB/AO (B)/SO/Seniority/08/D-105763 dated 7/10.11.2008 issued by the respondent No.1;
Office Order No. 238 dated 24.7.1991 to the extent of appointment of the respondent No.3 on the post of Chowkidar issued by predecessor in interest of the respondent No. 1 i.e. DWS & SD Undertaking (MCD);
Office Order No.161 dated 19.9.1994 to the extent of promotion/selection of the respondent No. 3 on the post of Asstt. Security Officer issued by predecessor in interest of respondent No.1 i.e. DWS & SD Undertaking (MCD);
Office Order No. 59 dated 22.7.2010 issued by the respondent No.1;
direct the respondent No. 1 to regularize the applicant to the post of Dy. Chief Security Officer w.e.f. 1.7.2009;
pass any other order (s) as this Honble Tribunal may deem fit and proper in the facts and circumstances of the case in favour of the applicant and against the respondents. He has also sought the following interim reliefs:
In view of above facts and circumstances, it is, therefore, most respectfully prayed that this Honble Tribunal may graciously be pleased to stay the operation of the Order No. F-35/DJB/AC(B)/Prom/SO/08/D-298 dated 16.2.2009 with final seniority list of Security Officer dated 18.2.2009, Office Order No. 277 and 278 dated 7.11.2008 and Circular dated 7/10.11.2008 and Office Order No. 58 dated 22.7.2010 issued by the respondent No.1, till the pendency of the present O.A., in the interest of justice.
12. When this case was heard initially on 04.08.2008, we had made it clear that the promotion of the applicant and his status will be subject to the outcome of this OA. It is seen that the respondent No. 1 has been maintaining the status quo in the matter so far.
13. The main grounds taken by the applicant in this O.A are the following:
C. BECAUSE even otherwise, the respondent No. 3 belongs to S.T. Category and as per 13 Point post based reservation roster, the respondent No. 3 ought to have been promoted against Point No. 13 which is meant to S.T. Category and thus the Office Order No. 277 and 278 dated 7.11.2008 are illegal and arbitrary. However, in view of the judgment passed by Honble Supreme Court even the ST candidates are not entitled to any reservation in Delhi.
D. BECAUSE the respondent No. 1 also ignored the Notification of Govt. of NCT of Delhi dated 20.1.1995, in which, `Mina/Meena has been declared as OBC and hence the respondent No. 3 is not entitled to any benefit of the ST Candidate.
J. BECAUSE after coming into force of new 13 Point Reservation Roster, Shri Rangal Ram, Shri D.P.S. Nagar and Shri Ranbir Singh were holding the post of Security Officer with the respondent No. 1 and were adjusted in the roster against Point No. 1,2 and 3 respectively irrespective of the fact that point No. 1 was for unreserved category and Shri Rangal Ram belongs to S.C. Category as per the Govt. order and even otherwise Shri Rangal Ram was promoted to the post of Security Officer on his own merit on 18.8.1981 and thus the respondent No. 1 has no right to challenge the same.
N. BECAUSE the respondent No. 1 illegally held that there was a vacant post of ST candidate and the same was carried forward since 1985 whereas after the inception of 13 Point Reservation Roster which became effective from 2/7/1997, all the recruitment/promotions made on or after 2.7.97 have to be based on new post based rosters and a vacant post cannot be carried forward for more than 3 recruitment years. It was alleged that it was carried forward from 1985 to 1991 and then from 1991 to 1996 and from 1996 to Feb. 1997. Therefore, it cannot be carried forward after Feb. 1997 as has been illegally done in the present case.
O. BECAUSE the respondent No. 1 illegally held that they have carried forward the vacant post of ST since 1991 and now illegally alleging that in the year 2008 they have promoted respondent No. 3 against the said post whereas as per records no such proof of carrying forward has been given by the respondent No. 1 and it is also a matter of fact that no procedure for carrying forward for any post of Security Officer has been followed till date by the respondent No. 1, therefore, it is clear that the respondent No. 1 making false and frivolous ground that there was a vacant post of ST and the same was carried forward upto 2008.
P. BECAUSE the respondent No. 1 ignored that as per service rules if sufficient number of SC & ST candidates against the reserved posts are not available, such post can be de-reserved after following the prescribed procedure for de-reservation, and as such reserved post can be carried forward for the subsequent recruitment years, but in the present case, the department has admitted in reply to application under Right to Information Act that till date no vacancy of Security Officer has been de-reserved, therefore, question of carry forward of the reserved post of ST does not arise at all and that too from the back date as has been illegally done by the respondent No. 1 in the present case.
R. BECAUSE the respondent No. 3 was not entitled to be selected on the post of Asstt. Security Officer as his appointment itself is illegal and more so he does not fulfill the requirement of the post of Asstt. Security Officer as the respondent No. 3 is not Ex-Naik of Army or equivalent rank in the defence service.
T. BECAUSE the respondent No. 1 also ignored the Notification of Govt. of NCT of Delhi dated 20.1.1995, in which, `Mina/Meena has been declared as OBC and hence the respondent No. 3 is not entitled to any benefit of the ST candidate.
14. In support of the above contentions, the learned counsel for the applicant has relied upon the judgment of the Apex Court in Subhash Chandra & Anr. Vs. Delhi Subordinate Services Selection Board & Ors. (JT 2009 (10) SC 645) where it was held as under:
No Scheduled Tribe has been identified in the Union Territory. The Presidential Order in regard to the Scheduled Castes speaks of the residents of Delhi alone. Some of the Castes identified as Scheduled Castes in some other States also find place in the Presidential Order issued for Delhi.
15. The Respondent No. 1 in the counter reply has submitted as under:
6. That the allegations made in para 6 of the facts of the case of the application is wrong, baseless and is denied. It is respectfully submitted that prior to the applicability of the 13 point based roster, promotions/appointments were made as per the 40 point vacancy based roster. This roster was a running roster and vacancies were filled as per the reservation points indicated for specific category. As per this 40 point vacancy based roster, a vacancy for ST candidate arose in the year 1985. But due to non-availability of eligible candidate for promotion in the feeder grade, the vacancy was carried forward to next subsequent recruitment years. Thereafter, one promotion was made in the year 1991 by promoting Sh. Duli Chand Tyagi. Another vacancy was filled in 1996 by promoting Sh. D.P.S. Nagar to the post of Security Officer. During this period, the vacancy meant for ST remained vacant and continued to be carried forward. Consequently, this vacancy was approved to be filled through an SC candidate by exchange of this ST vacancy. Accordingly, a DPC was held on 16.5.1996 for assessing suitability of two candidates, one post was unreserved and the other was for an SC candidate against the exchanged vacancy of S.T. The DPC recommended Sh. DPS Nagar against the unreserved vacancy and the recommendations in respect of Sh. Kartar Singh i.e. the senior most SC candidate was kept in sealed cover as he was facing RDA and a charge sheet for minor penalty has been issued to him. But since Sh. Kartar Singh was not exonerated, the recommendations were not opened and the vacancy meant for ST (exchanged to SC) remained unfilled. Thereafter, one more unreserved vacancy arose in February, 1997 against which Sh. Ranbir Singh was promoted. Till then no ST candidate became eligible for promotion to the post of Security Officer.
However, dispute arose when the new 13 point based roster came into force and the three incumbents placed in the new roster but as regards one ST post being carried forward from 1985 remained vacant. Sh. Pyare Lal Meena/respondent No.3 herein, an ST candidate, was appointed as Assistant Security Officer w.e.f. 19.9.1994. Since the post meant for ST was kept vacant, he claimed for promotion against this point on completion of his three years regular service on 19.9.1997, which is a requirement for promotion as Security Officer. Till then he was not given placement in the seniority list of Security Officer. The old seniority list was issued in 1990 and the name of respondent No.3 was not included in the seniority list. Thereafter, in view of the applicability of new 13 point post based roster, it was observed that the vacant post meant for ST may be filled as per the new 13 point post based roster. Therefore, as per guidelines of OM No. 36012/2-96-Est. (Res.) dt. 2.7.1997, the vacancy was redrawn and it was observed that as per new 13 point reservation roster, applicable in case of sanctioned strength of below 13, the point No. 1 to 6 were meant for general candidate and after given placement to 3 working incumbents on 2.7.1997, 4th point was worked out to be filed through a general candidate. Accordingly, a DPC was held on 18.06.1999 for assessing suitability of eligible candidate against this post. The DPC considered 5 senior most ASOs namely Sh. Jile Singh Dahiya, Kartar Singh (SC), Dilbagh Singh, Vijender Kumar and Om Pal Singh against one vacancy. The name of Sh. Kartar Singh (SC) was at Sl. No. 2 in the consideration list and his ACRs for the period 1996-97 & 97-98 were below average and a penalty of Withholding of two increments without cumulative effect was imposed upon him vide Office Order No. 89 dated 31.10.1996. As per the representation of Sh. Kartar Singh, the penalty had been culminated on 31.12.1998. However, DPC recommended Sh. Zile Singh Dahiya, Assistant Security Officer against the general category, for promotion against this point who was further promoted to the post of SO vide AO(B)s Office Order No. 116 dated 6.10.1999.
A seniority list of Assistant Security Officers was issued on 7.2.2001 and the name of respondent No.3 was placed at Sl. No.8 in this seniority list and that of the applicant at Sl. No.9. Thereafter, 3 posts became vacant due to retirement of Sh. Zile Singh Dahiya on 30.04.2001, retirement of Sh. Rangal Ram on 31.03.2002 and retirement of Sh. D.P.S Nagar on 1.1.2003 but these posts were not filled during 2001, 2002 and 2003 respectively. Thereafter, a DPC was held on 7.2.2003 for filing up all these three vacancies. But DPC recommended only 2 individuals namely, Sh. Kartar Singh (SC) and Sh. Vijender Kumar and third was kept unfilled due to the reason that there is a scarcity of officials in the feeder grade. During this DPC Sh. Kartar Singh (SC) candidate was considered against the unreserved vacancy but he was allowed relaxation in the ACRs grading in the light of GOI, OM No. 36012/23/96-Estt. (Res.) dt. 3.10.2000, which provides the relaxation/concession in the matters of promotion for candidates belonging to SC/ST by way of lower qualifying marks, less standards of evaluation that existed prior to 22.7.1997 and as contained in the instructions issued by the DOPT from time to time. Since Sh. Kartar Singh was a SC candidate, his ACRs for the period 1999-2000 and 2000-2001 was read as Average, whereas it is required for general as good.
In the DPC dated 7.2.2003 applicant herein was not promoted against point 7 meant for SC category as there was scarcity in feeder grade of ASO. During this DPC neither the name of the applicant was recommended nor his suitability was assessed. Later, the applicant filed a court case that the reason for which his promotion was held up, was not genuine and challenged the act of withholding his promotion w.e.f. 21.3.2003 of his counterparts vide Office Order No. 58 dated 1.2.2007 but this time no review DPC was held for assessing his suitability.
A DPC was held on 12.01.2004, vide which the applicant was recommended for promotion but these minutes were not accepted by the Competent Authority. Applicant was later promoted vide Office Order No. 22 dated 27.01.2005 along with two others namely, Sh. Jai Pal Singh/respondent No. 2 ehrein and Sh. S.P. Dalal. Sh. Om Pal Singh was not considered fit due to adverse ACRs. The DPC observed that as per available ACRs, 1997-98 were adverse, as the remarks He did not take the correction in good spirt was communicated. The Committee also observed that the ACRs of Sh. Om Pal Singh for the period 1997-98, 1999-2000 and 2000-2001 were adverse. Out of these only the ACR for the period 1997-98 was processed and he was asked for explanation vide AC (W)s letter No. DJB/AC(W)/CR/F.7/99/2698 dt. 9.6.99. Sh. Om Pal Singh, however, failed to explain the reason, as such it was recorded as Adverse. However, the ACRs for the period 1999-2000 and 2000-2001 were not communicated due to some office errors. By giving benefit of doubt, the adverse remarks in these two ACRs were expunged purely on technical grounds. However, although these ACRs were not taken into account as adverse but still Competent Authorityhas not recorded his comments on it whether it should be rated as Average or Good. But since the adverse remarks have been expunged, the committee viewed it as Average. The ACR for the period 1998-1999 was not written. Overall 1997-98 and 2001-2002 are Good and 1999-2000 and 2000-2001 are Average. The DPC observed that his overall ACRs are above average. But since the last ACR of 2001-02 was Good, the DPC was of the opinion that he should have improved himself and can be entrusted with the work of higher post. As such Sh. Om Pal Singh was further allowed promotion ignoring adverse remarks in his ACRs.
16. The respondent No. 3 in his reply has taken a preliminary objection that the O.A. is not maintainable against him due to the fact that he belongs to ST category and he has been given promotion as per the reservation policy as one post/point was not carried forward by the respondent No.1. Further, the relief against him relates to years 1991 and 1994 and it is not maintainable as the same is barred by limitation as well as delay and laches. The learned counsel for the respondent No. 3 Shri Tiwari has also taken the objection that the applicant has sought multiple reliefs in this O.A. and, therefore, the O.A. itself is not maintainable in view of Rule 10 of the CAT Procedure Rules as all the reliefs sought in this O.A. are not consequential to one another.
17. The applicant has filed rejoinder to the counter affidavit filed by the respondent No. 1 specifically denying the preliminary objections taken by them. He has also reiterated his stand taken in the Original Application. He has also filed rejoinder to the counter affidavit filed by the respondent No. 3 specifically denying the preliminary objections taken by him. He has also denied that the applicant has been given promotion against ST vacancy. He has submitted that as per 13 Point Reservation Roster, the reservation given to ST category comes at Serial No. 13 in the said roster and turn of the serial no. 13 has not come till date. Therefore, it cannot be said that he has been given promotion against ST vacancy. He has again reiterated his stand taken in the O.A.
18. We have heard the learned counsel for the parties. We have also perused the entire documents available on record and the case laws relied upon in the matter. As already observed, the dispute is basically regarding the seniority of the applicant vis-`-vis the Respondent No.3. The applicant has, therefore, tried to establish that the initial appointment of Respondent No. 3 as a Chowkidar itself was illegal. But he is adversely affected by his promotion as S.O. w.e.f. 21.03.2003 granting him the benefit of reservation as an `ST category candidate and the subsequent promotion as ACSO. The respondent Delhi Jal Board has been blowing hot and cold from the beginning. Initially, they were with Respondent No. 3. Later they took side with the applicant for some time. Again, they went back. Now they are firmly with the Respondent No. 3. The undisputed position in this case is that Respondent No. 3 belongs to ST category and the applicant belongs to SC category. The respondent No. 3 was appointed as ASO w.e.f. 19.09.1994 and the applicant from 10.10.1994. Thus, the respondent No. 3 was senior to the applicant as ASO and the final seniority list of ASOs published on 07.09.2001 also reflects the aforesaid position. The other undisputed position is that as per the provisions of the Recruitment Rules for the post of SO, the method of recruitment is by promotion failing which by direct recruitment. In the case of promotion, ASOs with 3 years regular service in the grade are eligible for promotion. As the applicant was appointed as ASO on regular basis w.e.f. 10.10.1994, he became eligible for promotion as SO w.e.f. 10.10.1999 itself. The total sanctioned strength of SOs was 4. Meanwhile, the post based roster came into operation w.e.f. 02.09.1997 and as on that date, only 3 SOs were working and 1 post was lying vacant. As the total strength of SOs was only 4, undisputedly the 13 point roster is applicable. At the point of initial operation of the roster, the three SOs occupying their posts were S/Shri Rangal Ram, D.P.S. Nagar and Ranbir Singh. All of them belonged UR category and they have been rightly shown against Point Nos. 1, 2 and 3 in the 13 Point roster. The next vacancy became available w.e.f. 06.10.1999 and it was filled up by the senior most ASO Shri Zile Singh and his name was again shown rightly against Point No. 4 in the said roster. The next eligible senior most ASO were Shri Kartar Singh belonging to SC category, Shri Vijender Kumar belonging to UR category, Shri Om Pal Singh belonging to UR category, Shri Jai Pal Singh belonging to UR category, Shri S.P.Dalal belonging to UR category, Shri Pyare Lal Meena (Respondent No. 3) belonging to ST category and the Applicant belonging to SC category of Respondent No.1 with Respondent No.3. Thereafter, 3 vacancies occurred and the DPC was held for considering the eligible persons for promotion as SOs on 07.02.2003. However, the DPC, without assigning any reason, considered only 2 ASOs, namely, Shri Kartar Singh (SC) and Shri Vijender Singh (UR) who were at Serial Nos. 1 and 3 in the seniority list of ASOs and they were also rightly posted at point Nos. 5 and 6 of the roster. According to the minutes of the DPC held on 07.02.2003 also, Shri Kartar Singh was promoted on the basis of his own merit as he was the senior most ASO as per the seniority list. The Respondent has also considered him as promoted against Point 5 in the 14 point roster which is earmarked for unreserved candidate. The DOP&T, vide its OM No. 36028/17/2001-Estt (Res) dated 11.7.2002 has also clarified that the candidates appointed by promotion on their own merit and not owing to the reservation or relaxation of qualification will not be adjusted against the reserved points of the reservation roster and they will be adjusted against the unreserved points. The said OM (Annexure K) reads as under:
Test of Dept. of Per & Trg., O.M. No. 360238/17/2001Estt. (Res) dated 11.07.2002 Treatment of SC/ST Candidates Promoted on their own merits, in the Reservation Rosters The undersigned is directed to say that this department has been received references from various Ministries, etc regarding adjustment of SC/ST candidates promoted on their own merit in the reservation rosters introduced vide DOPTs O.M.No. 36012/2/96-Estt. (Res) dated 02.07.1997. While it is clear from the OM, dated 02.07.1997 that the SC/ST/PBC candidates appointed by direct recruitment on their owns merits and not owing to reservation will be adjusted against unreserved points of the reservation roster, doubts have been raised about SC/ST candidates promoted on their own merit. It is hereby clarified that:-
(i) The SC/ST candidates appointed by promotion on their own merit and not owing to reservation or relaxation of qualifications will not be adjusted against the reserved point.
(ii) If an unreserved vacancy arises in a cadre and there is any SC/ST candidate within the normal zone of consideration in the feeder grade, such SC/ST candidate cannot be denied promotion on the plea that the post is not reserved. Such a candidate will be considered for promotion alongwith other candidates treating him as if he belongs to general category. In case he is selected, he will be appointed to the post and will be adjusted against the unreserved point.
(iii) SC/ST candidates appointed on their own merit (by direct recruitment or promotion) and adjusted against unreserved points will retain their status of SC/ST and will be eligible to get benefit of reservation in future/further promotions, if any.
2. All Ministries/departments are requested to bring the contents of this O.M. to the notice of all authorities under them for information and compliance.
19. The 2nd in the list, Shri Dilbagh Singh was unfit. The 3rd vacancy was to be filled by an SC candidate against point No. 7 earmarked SC in the roster but the DPC without assigning any reason did not consider any one against that vacancy and it was allowed to remain vacant. During this period the Applicant made several representations to consider him for promotion against the SC vacancy as he was eligible for the same. Finally, the DPC was again convened on 12.01.2004 and it recognized the fact that the post lying vacant belongs to SC category which falls at Point No. 7 in the roster point and the Applicant was the only eligible person to be promoted to that post. Accordingly, he was recommended to be promoted as S.O. In the said minutes, it was revealed for the first time that the DPC held on 07.02.2003 did not recommend anyone for promotion against the 3rd vacancy due to scarcity of staff in the feeder cadre of ASO. But again for unexplained reasons, the respondents did not implement the said recommendation of DPC held on 12.01.2004 and did not promote the applicant as SO.
20. Thereafter, two more vacancies have occurred and the DPC was convened for 12.01.2005 to recommend 3 ASOs for promotion against those vacancies and the one vacancy which was not considered by the DPC dated 7.2.2003 and again kept unfilled even after the recommendation of the last DPC held on 12.01.2004. This time, the DPC finally considered the applicant along with Shri Jai Pal Singh and Shri S.P. Dalal both UR candidates in the order of seniority as SOs ignoring the reservation roster. Thereafter, they were promoted as SOs vide order dated 27.01.2005, again maintaining the same seniority in the grade of ASOs. Hence, the applicant made representation to the respondents stating that he was entitled to be promoted as S.O w.e.f. 02.03.2003 against the roster point No. 7 reserved for SC candidate. It is quite obvious that in the DPC held on 12.01.2005, the Applicant was reconsidered for promotion as an SC candidate as his senior in the grade of ASO, namely, S/Sh. Vivdekanand and Pyare Lal Meena (ST) were not considered. However, the contention of the respondent No. 1 was that Shri Kartar Singhs promotion w.e.f. 21.03.2003 was after giving him reservation as SC candidate and after he was retired, the applicant was promoted w.e.f. 27.01.2005 and as the other two ASOs, Shri Jai Pal Singh and S.P. Dalal are senior to him, they were given seniority over him as S.O. It is quite obvious that the aforesaid contention of the respondent was false and frivolous. The aforesaid stand of the Respondent is obiously against the DOPTs clarification issued vide its aforesaid O.M. dated 11.07.2002 referred to above. Moreover, the respondents themselves have followed the aforesaid instructions as the Minutes of the DPC held on 07.02.2003 do not contain any indication that Shri Kartar Singh was promoted against any reserved vacancy.
21. As the Respondent No. 1 did not consider the aforesaid request of the applicant, he filed CWP No. 19893 of 2005 before the High Court of Delhi. Just before the case was heard on 31.7.2007, the Respondent No. 1 suo moto came out with their Office Order No. 58 dated 01.02.2007 promoting the applicant notionally as S.O. with retrospective effect from 21.03.2003. They repeated the justification for not promoting him from the due date as pure administrative measure, i.e. the absence of adequate staff in the feeder cadre. Their further justification was that the possession of qualification wass not enough to be considered for promotion as it does not confer any automatic right on the claimant. However, the High Court, noting the fact that the respondent No. 1 has already promoted the applicant as SO with retrospective effect from 21.03.2003, dismissed the aforesaid petition vide its judgment dated 13.08.2007. Thereafter, they have also promoted him as DCSO on ad hoc basis w.e.f. 07.01.2008. The Respondent No. 3, however, challenged the promotion of the applicant as S.O. w.e.f. 21.03.2003, in CWP No. 6447/2007. As if the respondent No. 1 was waiting for such a Writ Petition to be filed challenging the appointment of the applicant, contrary to their own contention before the High Court in CWP 19893/2005 (supra), they issued the Office Order Nos. 277 and 278 on 07.11.2008 promoting the Respondent No. 3 as S.O. with retrospective effect from 21.3.2003 and cancelling the promotion of the applicant from that date. Simultaneously, the Respondent No. 1 has also issued circular dated 7-10/11/2008 again recasting the seniority list of SOs showing the applicant as junior to Respondent No. 3.
22. In our considered view, the aforesaid action of the Respondent No. 1 is nothing but an abuse of the process of law. It must have borne in mind that it was on its submission that the applicant has already been promoted as S.O retrospectively w.e.f. 21.03.2003 vide its order dated 01.07.2007, the Honble High Court dismissed the CWP No. 19893/2005 filed by the applicant denying him the opportunity to get his case adjudicated on merit. The applicant had no choice but to approach the High Court again vide CWP No. 8209/2008 but the same was disposed of on 21.11.2008 with the direction to the Respondent No. 1 to finalize the aforesaid provisional seniority list of SOs issued vide circular dated 7-10/11/2008. Respondent No. 1, thereafter, finalized the aforesaid draft seniority list of SOs circulated on 7-10.11.2008 vide their circular dated 18.2.2009 which is the impugned order in this O.A. Even though the CWP 8209/08 was already disposed of by the High court vide its order dated 21.11.2008, respondent No. 1 still stated in the circular dated 18.02.2009 that it was being issued subject to the outcome of the aforesaid writ petition.
23. From the above position, what is emerging is that the claim of the applicant for his promotion as S.O. with effect from 21.3.2003 still remaining to be adjudicated. He has been left with this predicament only because of the misleading statement of the Respondent No. 1 before the Honble High Court during the pendency of the writ petition No. 19893/2008 by which the Applicant was seeking promotion as SO w.e.f. 21.3.2003 that he has already been promoted as S.O w.e.f. 21.03.2003 vide their order dated 01.07.2007. Therefore, the allegation of collusion made by the applicant gets its credence from the conduct of the Respondent No. 1 itself. It is seen that immediately after the Respondent No. 1 has promoted the Applicant, vide its order dated 01.07.2007, retrospectively w.e.f. 21.03.2003, the Respondent No. 3 filed the Writ Petition No. 6447/2007 before the High Court against the aforesaid order and without any direction from the High Court, the Respondent No. 1 reviewed the proceedings of the DPC held on 07.02.2003 by holding another DPC on 17.07.2008 and promoted the Respondent No. 3 in the place of the applicant with retrospective effect from 21.03.2003 and cancelled applicants promotion from the same date. In our considered view the Respondent No. 1 has committed both administrative and judicial impropriety in issuing the said orders without notice to the applicant and without the leave of the Honble High Court before which they made the statement during the pendency of CWP No. 19893/2005 (supra) that the applicant has already been promoted as SO with retrospective effect from 21.03.2003 and on that basis the High Court dismissed the writ petition.
24. Now let us consider the case on merit. At least at this belated stage, it is necessary to adjudicate the right of the applicant and the Respondent No. 3 for promotion as SO w.e.f. 21.03.2003. First of all, the reason given by the Respondent No. 1 that the 3rd vacancy of S.O as on 21.03.2003 was not filled up because there was scarcity of staff in the feeder grade of Assistant Security Officer is absolutely absurd and illegal. As held by the Apex Court in Dwarka Prashad and Ors. Vs. Union of India (2004 (1) ATJ (SC) 591, right to be considered for promotion on fair and equal basis without discretions may be claimed as a legal and fundamental right under Articles 14 & 16 of the Constitution of India. Therefore, denying the promotion on the ground that there was scarcity in the feeder cadre is totally illegal and arbitrary. Moreover, the Minutes of the DPC held on 07.02.2003 do not reveal any such administrative exigency faced by the Respondent No. 1. When the applicant made a series of representations against his non-consideration for promotion, the Respondent No. 1 realized the consequences of scrutiny in the matter particularly when the WPC No. 19893/2005 (supra) filed by the applicant was pending and they had to do a lot of explaining as to why he was not even considered in the DPC held on 07.03.2003. They had, therefore, no other option but to call the DPC again on 12.01.2004 and recommended the applicant for promotion. In its minutes, it was also recorded that the post of S.O. was lying vacant and the previous DPC held on 07.02.2003 did not consider it. They have also agreed that the said post was against Point No. 7 in the roster and it was to be filled up by an SC candidate. Even then, the Respondent No. 1 did not promote the applicant and waited till the next DPC held on 12.01.2005. Finally, when he was promoted as an SC candidate, they did not follow the reservation roster.
25. The new found reason of the Respondent No. 1 to cancel the aforesaid appointment of the applicant as SO w.e.f. 07.02.2003 is that one ST post was not carried forward by DPC held earlier and the DPC of 2003 did not consider the same by mistake. Therefore, the new DPC held on 30.09.2008 has only corrected the mistake in terms of G.I DOP&T OM No. 22013/1/97-Estt. (D) dated 13.04.1998 and the judgment of the Apex court in SLP No. 24327/2005, Subhash Chandra & Anr. Vs. Delhi Subordinate Services Selection Board & Ors. (JT 2009 (10) SC 645) relied upon by the applicant was not applicable in the year 2003. According to them prior to the introduction of the 13 point roster, promotions were made as per the 40 point roster and as per the said roster, a vacancy for ST candidate has arisen in the year 1985 but due to non-availability of eligible candidates, the said vacancy was carried forward to subsequent recruitment years. Finally, the said ST vacancy was unreserved to be exchanged with an SC candidate, namely, Shri Kartar Singh but since he was facing departmental proceedings, the proposed exchange also did not take place and the ST vacancy exchanged with SC remained unfilled.
26. As observed earlier, the Respondent No. 1 has been shifting stands every now and then. Their first contention was that on 21.03.2003, the applicant could not be promoted as there was scarcity in the feeder grade of Assistant Security Officer. From there, they shifted the stand and said that the promotion of Shri Kartar Singh (SC) w.e.f. 21.03.2003 was after giving him the benefit of reservation of applicable SC candidate. Now they have dug up the records of the year 1985 and said that an ST vacancy was being carried forward from that time onwards and in between it was exchanged with an SC vacancy and again it was not filed up and now the Respondent No. 3 was accommodated against it w.e.f. 21.03.2003. In other words, according to the Respondent No. 1, they have carried forward an ST vacancy for 24 years i.e. for 1985 to 2007 in order to promote the Respondent No. 3 with retrospective effect from 21.3.2003 vide their order dated 07.11.2008. Finally, when the applicant has confronted the Respondent No. 1 that there is no reservation for ST candidate under the Delhi Government or in its undertakings as held by the Apex Court in Subhash Chandras case (supra), their argument was that it was not applicable in the year 2003, forgetting the fact that they have issued the order promoting the Respondent No.3 retrospectively w.e.f. 21.3.2007 vide its order dated 1.7.2007 when the said judgment was undisputedly in existence. Moreover by the aforesaid judgment of the Apex Court is only stating a fact that there are no Scheduled Tribes in Delhi and, therefore, there is no reservation for them.
27. We are, therefore, of the considered view that the actions of the respondent No. 1 was unfair fair and they lacked transparency throughout. Rather, their attempt all along was to deprive the applicant of his fundamental right of reservation for promotion as S.O right from the year 2003. In their attempt to do so, they went on giving cooked up reasons from time tot time. They have also not hesitated to play foul with the court in their over enthusiasm to bestow the undeserved promotions to Respondent No. 3 illegally treating him as a ST candidate whereas according to the judgment of the Apex Court in Subhash Chandras case (supra),no Scheduled Tribe has been identified in the Union Territory of Delhi. The relevant portion of the said judgment is as under:-
25.2. It is not denied or disputed that services in the Union Territory is essentially different from All India Services. It is also beyond any controversy that machinery for recruitment is also different. Indisputably again, not only the conditions of recruitment but also conditions of service differ.
25.3. Before us, it has furthermore been conceded that for the purpose of Union Territory of Delhi no separate notification in respect of Scheduled Tribes has been issued.
28. Above all, special provision for reservation in services in favour of Scheduled Castes and Scheduled Tribes made in Article 16 (4-A) of the Constitution is the safeguarded for public employment. To ensure due compliance of the aforesaid provision, Government has issued various orders from time to time to ensure prompt disposal of the grievances of employee belonging to those classes. One of such order issued by the Government of India, Department of Personnel and Administrative Reforms No. 36013/6/84-Estt (SCT) dated 29.8.1984 says that the rules and procedures regarding reservation and other concessions for SCs/STs are to be followed strictly, which should be watched at every stage. Further, glaring case of discrimination, deliberate infraction, cases of negligence or lapse in the matter of the orders relating to reservations and concessions in favour of SC/ST employees in any office/Establishment should be brought to the notice of the appropriate authorities for suitable action.
29. As regards the back wages is concerned, as held by the Apex Court in State of Kerala and Ors. Vs. E.K. Bhaskaran Pillai (2007 (6) SCC 524, when the promotion from due date was wrongly denied to an employee, he should be given full benefits including back wages. The relevant part of the said judgment is as under:
So far as the situation with regard to monetary benefits with retrospective promotion is concerned, that depends upon case to case. There are various facets which have to be considered. Sometimes in a case of departmental enquiry or in criminal case it depends on the authorities to grant full back wages or 50 per cent of back wages looking to the nature of delinquency involved in the matter or in criminal cases where the incumbent has been acquitted by giving benefit of doubt or full acquittal. Sometimes in the matter when the person is superseded and he has challenged the same before Court or Tribunal and he succeeds in that and direction is given for reconsideration of his case from the date persons junior to him were appointed, in that case the Court may grant sometime full benefits with retrospective effect and sometimes it may not. Particularly when the administration has wrongly denied his due then in that case he should be given full benefits including monetary benefit subject to there being any change in law or some other supervening factors. However, it is very difficult to set down any hard and fast rule. The principle 'no work no pay' cannot be accepted as a rule of thumb. There are exceptions where courts have granted monetary benefits also.
30. In view of the above facts and circumstances, this O.A. is allowed in favour of the Applicant and against the Respondents 1-3. Consequently, the impugned order/circular of the Respondent No. 1 dated 16.02.2009, 18.02.2009, 07.11.2008 (2 orders), 7-10.11.2008 and 22.07.2010 are quashed and set aside. Further, the Respondents Office Order No. 58 dated 01.02.2007 promoting the applicant as Security Officer and the circular dated 22.06.2007 by which the final seniority list of Security Officers and the order dated 07.01.2008 promoting him as Deputy Chief Security Officer are restored. As the applicant was denied promotion as SO w.e.f. 21.03.2003 deliberately, illegally and with mala fides, he shall be entitled to full pay and allowances attached to the post of Security Officer with upto date arrears. In view of the series of writ petitions/original applications filed by him so far the protection of his rights, he is also entitled for Rs.25,000/- (Rupees twenty five thousand only) as cost. The Chairman, Delhi Jal Board, if considered necessary, may recover the aforesaid amount from the pay and allowances of the officers responsible for denying promotion to the applicant, after notice to them. The aforesaid directions shall be complied with within a period of two months from the date of receipt of a copy of the order. There shall be no order as to costs.
31. Though the applicant has vehemently argued that the appointment of Respondent No. 3 as Chowkidar itself was ab initio void, we do not intend to go into those aspects in this O.A at this belated stage.
( Khushi Ram) ( G. George Paracken ) Member (A) Member (J) SRD