Central Administrative Tribunal - Delhi
Bachchu Singh S/O Shri Shyam Singh vs Municipal Corporation Of Delhi on 3 August, 2011
Central Administrative Tribunal Principal Bench, New Delhi T.A.No.1319/2009 New Delhi this the 3rd day of August, 2011 Honble Mrs. Meera Chhibber, Member (J) Honble Dr. A.K. Mishra, Member (A) Bachchu Singh s/o Shri Shyam Singh r/o House No.A 88/1, Durga Vihar Devli, New Delhi. .Applicant (By Advocates: Shri Rajinder Nischal) Versus 1. Municipal Corporation of Delhi through its Commissioner Town Hall, Delhi-6 2. Dariyav s/o Shri Himmat Singh 3. Nayab Singh s/o Shri Basta Singh 4. Krishan Pal s/o Shri Bulay Singh 5. Shabd Sharan s/o Shri Ram Din 6. Rajender s/o Shri Kesh Ram 7. Ram Khilari s/o Shri Mishri Lal 8. Desh Pal Singh s/o Shri Pritam 9. Arvind Kumar s/o Shri Dahu Paswan 10. Mangey Ram s/o Shri Prabhu Dayal 11. Prem Raj s/o Shri Mam Chand 12. Jagpal Singh s/o Shri Nepal Singh 13. Ram Baran s/o Shri Sughar Singh 14. Jor Singh s/o Shri V Ram 15. Veer Mohammed s/o Shri Sardar Khan 16. Ram Naresh s/o Shri Dukhi Prasad 17. Kesar s/o Shri Kripol 18. Shiv Charan s/o Shri Malkhan 19. Beer Singh s/o Shri Pyare Lal 20. Arjun Lal s/o Shri Manohar Lal 21. Ram Dev Pal s/o Shri Ram Karan Pal 22. Kedar Nath s/o Shri Rameshwar Prasad 23. Babu Ram s/o Shri Batan Singh 24. Ranbir Singh s/o Shri Rich Pal Singh 25. Ram Prasad s/o Shri Manglu Ram 26. Hira Lal s/o Shri Radhey Shyam 27. Sher Singh s/o Shri Desh Raj 28. Jai Pal s/o Shri Nain Singh 29. Kailash Ram s/o Shri Gaj Raj 30. Jitender Verma s/o Shri Brahm Singh 31. Mahender Pal Singh s/o Shri Charan Singh 32. Satender Kumar s/o Shri Laxman Singh 33. Brijbir s/o Shri Budh Singh 34. Parmod Kumar s/o Shri Birbal 35. Daya Shankar s/o Shri Brij Bihas 36. Mukesh Kumar s/o Shri Khushi Ram 37. Suresh Kumar s/o Shri Amar Singh 38. Mange Ram s/o Shri Mamchand 39. Ranji Lal s/o Shri Manohar Lal 40. Silo Chand s/o Shri Ram Kishon 41. Rajender s/o Shri Amhak Singh 42. Inder Pal Sharma s/o Shri Shambhu Dayal 43. Madan Mohan s/o Shri Rawar Mal 44. Sukhpal s/o Shri Roop Ram 45. Mahesh Chand s/o Shri Latur Singh 46. Ranbir s/o Shri Vijay Pal 47. Mangat Ram s/o Shri Samey Singh 48. Beer Pal Singh s/o Shri Nawab Singh 49. Nand Kishore s/o Shri Ram Kishan 50. Kishan Pal s/o Shri Salak Ram 51. Prem Prakash s/o Shri Vardhan Ram Respondents (Service of respondent No.2 to 51 to be effected through respondent No.1) Respondents 2 to 51 are working in various Zones of Respondent No.1 (MCD) (By Advocate: Shri Rajinder Khatter). O R D E R
Honble Mrs. Meera Chhibber, Member (J) Writ Petition No.7209/2005 was initially filed by the Delhi Udhyan Karamchari Sangathan Union through General Secretary and one Bachchu Singh but vide order dated 29.4.2005 Delhi Udhyan Karamchari Sangathan Union and General Secretary were deleted from the array of parties. Now only Bachchu Sing is the petitioner. Petitioner had claimed the following relief:-
(i) That a writ of mandamus or any other directing respondent No.1, i.e., MCD to quash and set aside the result of the Trade Test held for the promotion to the post of Chaudhary;
(ii) Direct respondent No.1, i.e., MCD to hold a fresh Trade Test in a transparent manner and as per the provisions of law and Recruitment Rules;
(iii) Direct respondent No.1, i.e., MCD to hand over the matter to the Central Bureau of Investigation.
The Writ Petition was transferred to the Tribunal vide order dated 31.3.2009 and has been renumbered as TA 1319/2009.
2. It is submitted by the counsel for the petitioner that the petitioner was working as a Mali in the pay scale of Rs.2500-3200. He was eligible for the post Chaudhary.
3. MCD conducted a trade test wherein 50 Malis were declared successful. About 2000 candidates had appeared in the written test out of which 419 candidates were short-listed for practical and viva-voce even though there is no provision for viva voce in the RRs, therefore, viva voce could not have been held. Even otherwise, there has been total favoritism, nepotism and corruption in the trade test.
4. Shri Maharaj Singh Chaudhary of CPWD was part of the DPC who asked the candidates to identify the plants, seeds and flowers etc. Since he is himself Chaudhary, he could not have selected other candidates for the post of Chaudhary. As per the RRs, the DPC was to consist of the following:-
1. Director of Horticulture Chairman
2. Director of Horticulture Member
3. Assistant Director (Horticulture) Member
4. Asstt. Director (H)/SC Member
5. Administrative Officer (H) Convener whereas in the instant case practical and viva voce was conducted by the following:-
1. Director of Horticulture Chairman
2. Ex Deputy Director (Hort.) CPWD Member
3. Assistant Director (Horticulture) CPWD Member
4. Assistant Director (Horticulture) CPWD Member
5. Ram Kumar Malik, CPWD Sectional Officer
6. Maha Raj Singh, CPWD Chaudhary.
No one was present from SC community.
5. Being aggrieved, some of the candidates had filed complaints but no response was given, he, therefore, had no other option but to file the present petition.
6. Respondents have explained that a group of Malis working under the Corporation had initially filed Writ Petitions with regard to the alleged irregularities committed by the MCD while giving promotion to the post of Chaudharies. Honble High Court directed the respondents. i.e., MCD to initiate the process of filling up the vacant post of Chaudharies, which are falling in the promotee quota within 6 months from 26.02.04. In compliance to the order passed by the Honble Court, the MCD scrutinized large number of cases of Malis in order to prepare the seniority list from all the 12 zones of MCD including Malis, who had been transferred from DDA to the MCD.
7. Provisional Seniority list was issued for 6665 Malis, against which 2000 objections were received. In view of above, process of promotion couldnt be completed in time and the petitioners had filed C.P. before the Honle High Court of Delhi, therefore, in order to expedite the matter, MCD appointed Educational Consultants India Ltd., an independent agency working under Government of India to conduct the selections, therefore, allegations of corruption and nepotism are unfounded.
8. They have further explained that a meeting was held in the chamber of the Commissioner, MCD along with Delhi Pradesh Udhyan Vibhag Karamchari Sangh on 12.2.2005 and the minutes were circulated on 16.2.2005 thereof. The list of eligible Malis furnished by the respective Zones was also sent to all Deputy Directors (Hort.) of the concerned Zone with the directions to display the list on the Notice Board. A list of the eligible Malis was also displayed at Horticulture Department (HQ). Not only this, a Notice in two Hindi leading Newspapers and one in Urdu leading Newspaper was published to ascertain the names of eligible Malis in the list. Moreover MCD had also informed the Honble High Court about their decision to conduct the Trade Test through an independent agency. They have further stated that written, practical and viva voce were part of the Trade Test. 40:40:20 marks were allotted under each heading.
9. They have further explained that as per Recruitment Rules for the post of Chaudhary, the essential qualification is Matric or High School pass with Agriculture as one of the subject from the recognized Board/School/University or equivalent. However, educational qualification was not applicable in case of the departmental candidates, who are holding the post of Hedgemen/Machineman/Mali/Bullockman and Chowkidar on regular basis on date of commencement of recruitment rules. As far as complaints regarding mal-practices are concerned, they are absolutely baseless and concocted. The alleged complaints as filed by the Petitioner along with the writ petition as Annexure-10 are unsigned and name of the complainant is not given therein. Thus, the complaints/documents seem to be manufactured by the Petitioner at a later date. No such complaints were received. They have thus stated that the allegations of favoritism are absolutely baseless, the TA may, therefore, be dismissed.
10. We have heard both the counsel and perused the pleadings also.
11. Perusal of the file shows the TA was initially disposed of by the Tribunal on 4.8.2010 page 156 at 159 with the observation that if the applicant prefers representation to the respondent-MCD within one week from today, his claim shall be considered by the respondent-MCD within three weeks thereafter.
12. Bachchu Singh filed W.P. NO. 8621/2010 before the Honble High Court against order dated 4.8.2010. Honble High Court observed as follows:-
The Tribunal could not abdicate the judicial function of relegating the decision to the Executive. Needless to state, the order passed by the Tribunal amounts to requiring the Municipal Corporation of Delhi to be a judge in its own case. and restored the TA No.1319/2009 vide judgment dated 23.12.2010 with a direction to the Tribunal to summon the relevant record of selection and pass a reasoned order after looking into the record.
13. Pursuant to the above directions of the Honble High Court of Delhi, respondents produced the record of selection for our perusal.
14. Before we deal with the selection, it would be relevant to give little background of the case. It seems even though vacancies of Chaudhary in Horticulture Wing of the MCD were available since 1988, no exercise was being undertaken by the MCD to fill up those posts. On the contrary, MCD issued order dated 19.2.2002 to the effect that only those persons would be appointed as Chaudhary, who are eligible as per the RRs. Since no trade test was conducted after 1988, many Malis had become overage, therefore, batch of Writ Petitions were filed by such Malis challenging the order dated 19.2.2002. Leading case being that of Brijesh Kumar Writ Petition No.7669/2002, the batch of Writ Petitions were disposed of vide judgment dated 26.2.2004 by observing as follows:-
9. As noted above, a perusal of the Recruitment Regulations would show that for the purpose of promotion and for the purpose of direct recruitment, age bar has been prescribed. On 19.2.2002, Municipal Corporation of Delhi has issued an office order that only those persons would be appointed as Chaudhary who are eligible as per the Recruitment Regulations.
10. Apart from other consequences which may flow, effect thereof would be that persons who have become overage would not be considered for promotion as Chaudhary. Why should these persons suffer because of the inertia and supine indifference shown to the law by the Municipal Authorities.
Following directions were given to the MCD:-
12. The writ petitions aforesaid are accordingly disposed of with the following directions:
Office order dated 19.2.2002 is quashed.
Within a period of four weeks from today, M.C.D. shall initiate the process of filling up the vacant posts of Chaudhary falling in the promotee quota.
Yearwise vacancies to the post of Chaudhary falling in the promotee quota would be identified and displayed on the notice board in all the Zonal Offices of M.C.D. Service record of Malis working under M.C.D. would be scrutinized and all eligible candidates as of the year of vacancy would be considered for promotion to the post of Chaudhary.
M.C.D. shall not club the vacancies which have accrued yearwise to fill up the same as a single lot vacancy.
Promotions to the post of Chaudhary would be effected by the M.C.D. from amongst the eligible Malis. Vacancies shall be filled up year wise as per the directions aforesaid. The process of promotion would be completed within a period of six months from today.
Pending process of regular promotion, the existing position would not be disturbed by the M.C.D. Persons promoted would be entitled to their seniority with effect from the year when the vacancy arose.
Persons promoted and if have been made to perform the function of Chaudhary in the past would be paid wages in the grade of Chaudhary from the date on which promotion would be effected in their favour subject to the condition that in the past they were functioning the duties of Chaudhary. It is clarified as example, that a person promoted as Chaudhary, say from 1995 has worked as a Chaudhary from the year 1998, his wages as Chaudhary would be paid from the year 1998.
These directions shall apply to all persons working as Malis and would not be limited to the petitioners. With the directions aforesaid, the writ petitions stands disposed of.
15. Respondents have explained in the counter affidavit that since 50% of the posts of Chaudhary were to be filled up by way of promotion after passing the trade test, they first undertook the task of preparing the seniority list of Malis. Provisional seniority list of 6665 Malis was issued pursuant to the Honble High Courts directions. However, against it, they received 2000 objections. It was not humanly possible to complete the process of selection within 4 weeks with such enormous number of objections specially when petitioner had also filed Contempt Petition, therefore, in order to expedite the matter, a meeting was called by the Commissioner of MCD on 12.2.2005 and in the presence of General Secretary of Delhi Pradesh MCD Udhyam Vibhag Karamchari Sangh and other senior officers of MCD following decisions were taken:-
(i) The promotions to the post of Chaudhary may be done considering all eligible persons as per provisions of RRs.
(ii) A list of the eligible candidates must be prepared in the Zones.
(iii) The list of eligible candidates will be displayed in the zones.
(iv) Since thousands of Malis, Hedgeman, Chowkidars etc. have to be considered for promotions based on a trade test, the test may be entrusted to an independent agency.
(v) File an affidavit in the High Court on the Contempt Petition indicating a road map for recruitment.
16. In view of above, an independent agency, Educational Consultant India Limited (hereinafter referred to as ECIL an agency of Governtment of India) was called upon to conduct the Trade Test for MCD so as to ensure impartiality in the Trade Test. This development was duly explained to the Honble High Court in C.P. No. 720/2004 as is evident from page 18 at 22.
17. From the records produced by the respondents it is further seen that a letter was written by the MCD to the ECIL on 13.4.2005 giving the break up of year-wise vacancies of Malis with a request to provide year-wise panel/result as per the vacancies and eligibility list.
18. The Trade Test was finally fixed for 27.3.2005 which was given vide publicity by way of circulars and publication in Newspapers in advance.
19. On our directions, respondents have also produced the list of experts who had examined the candidates for practical and viva voce conducted by ECIL which reads as under:-
S.No. Name of the Expert Designation No. of candi-dates exam-ined for Practical and Viva-Voce Test No. of candi-dates absent Name of the Zone
1. Dr. K.V.K. Sinha Former Deputy Director of Horticulture (CPWD) 45 --- Narela (R), Najafgarh (R) and Rohini
2. Dr. K.V.K. Sinha and Sh. Desh Raj Singh .. Do..
S.O.(Hort) CPWD 54 4 West Zone, Sadar Pahar Ganj Zone, Karol Bagh Zone, City HQ
3. Dr. R.B. Verma Director of Horticulture (CPWD) 49 3 Narela (R), Najafgarh (R) and Rohini
4. Dr. R.B. Verma Dr. S.S. Sindhu .. Do ..
Sr.Scientist (Hort) IARI 49 -- West Zone, Sadar Pahar Ganj Zone, Karol Bagh Zone, City HQ Dr. S.S. Sindhu .. Do .. 50 1 South Zone and Central Zone Dr. S.S. Sindhu .. Do .. 55 2 Shahdara (N), Shahdara (S) & Civil Line Zone
5. Dr. V.K. Verma Director Horticulture (CPWD) 52 1 South Zone and Central Zone
6. Dr. V.K. Verma .. Do .. 54 1 Shahdara (N), Shahdara (S) & Civil Line Zone Sh. R.S. Sharma Retd. Asstt. General Manager (Hort.), Airport Authority of India 11 -- South Zone & Central Zone TOTAL 419 12
20. Perusal of above chart shows candidates were put to practical and viva voce test in different batches under respective zones under the supervision of different Sr. expert officers in the field of Horticulture, therefore, the Ist contention of the counsel for the applicant that 419 candidates could not have been examined in a single day is misconceived. Perusal of the mark-sheet further shows that candidates were distributed in small groups as per the different zones. It is not as if all the 419 candidates were examined by one expert. It is also relevant to note that each mark list is signed by the expert e.g. the marks list of West Zone, Sadar Paharganj, Karol Bagh was signed by Shri K.V.K. Sinha former Dy. Director of Horticulture, CPWD and Shri Desh Raj Singh, SO Horticulture, CPWD. The other batch of candidates from West Zone, Sadar Pahar Ganj, Karol Bagh were examined by Dr. R.B. Verma, Director, Horticulture, CPWD and Dr. S.S. Sidhu, Sr. Scientist (Hort.), IARI. In case of any cutting or overwriting, it is duly countersigned by the expert, meaning thereby the marks were given by the expert engaged by the independent agency. There is nothing on record to show that the candidates were interviewed/or marks were given by the Chaudharies of MCD, as alleged in the Writ Petition. It is settled law that the one who makes allegation has to prove the same also. In the instant case, apart from making bald allegations, no evidence has been placed on record by the applicant to show that Chaudhary of MCD Shri Maharaj Singh had conducted the test. In fact since trade test was conducted by an independent agency, we find no substance in the allegation made by the applicant that tests were conducted by Shri Maharaj Singh, Chaudhary, CPWD.
21. It is also revealed from the marks sheets that 40+10 marks were fixed for practical test while 10 marks were fixed for viva voce. The written paper was for 30 marks which was duly mentioned in the question paper itself. While dictating the judgment, a doubt had arisen because under the Heading written, marks were given in fraction e.g. 32.33 or 34.6 etc. etc. so we had called the officers of MCD as well as ECIL, who explained the marks were shown in percentage in the final merit list under the written marks. It is also seen that none of the candidates were given more than 10 marks in viva voce and the total marks for viva voce were fixed as 10. It is thus clear that total marks given for viva voce were out of 10 marks. Moreover, total marks under the Heading Practical were 50 which were further bifurcated in two parts 40:10. 40 marks were for identification of seeds, plants etc. etc. and 10 marks were for practical as to how the plant is to be planted or cutting made etc. These marks have been given to all the candidates in same form so it is again wrong to suggest that viva was for more than 15%. Simply because MCD had written 20 marks were kept for viva voce, it would not vitiate the selections because records show that total marks for viva voce test were 10, therefore, we do not find any substance in this contention also.
22. Moreover, a person only has a right of consideration. It is relevant to note that Bachchu Singh was also duly considered. He had scored 61.00 marks in total and ranked at Sl.No.91 whereas posts to be filled were 55 out of which 9 were for SC, 4 for ST and 42 for General. . All the persons above him had scored more marks than him, therefore, it was due to his low ranking that he could not be appointed as Chaudhary and not due to any mala fides as wrongly alleged by the applicant.
23. Counsel for the petitioner strenuously argued that DPC was not as mentioned in the RRs whereas we have already noted above that in view of the facts as explained above, it was decided to get the Trade Test conducted by an independent, impartial body who had invited the experts from different departments. Moreover, the fact of getting the Trade Test done through an independent body was duly informed to the Honble High Court, therefore, it had their tacit approval, therefore, there is no substance in this contention also.
24. Counsel for the petitioner further submitted that there was no mention of viva voce in the RRs. However, perusal of RRs show the post of Chaudhary is a selection post and selection has to be done on the basis of a Trade Test. How Trade Test is to be conducted has not been explained. If independent agency decided to conduct the trade test in 3 parts viz. written, practical and viva voce, it would not vitiate the selection because as a Mali or a Chaudhary, their task is to grow plants, take care and maintain them. The practical test is the best way to know how much work they really know as a Mali. We, therefore, do not find any merit in this contention also.
25. Since the test was conducted by an independent body, allegations of arbitrariness, favoritism and nepotism are baseless and not substantiated. The same are accordingly rejected.
26. In view of above, we find no merit in the TA. The same is accordingly dismissed. No costs.
(DR. A.K. MISHRA) (MRS. MEERA CHHIBBER)
MEMBER (A) MEMBER (J)
Rakesh