Central Administrative Tribunal - Delhi
Mehak Singh vs Govt. Of Nct Delhi & Ors. Through on 5 December, 2011
Central Administrative Tribunal Principal Bench OA No.681/2011 New Delhi this the 5th day of December, 2011. Honble Mr. M.L. Chauhan, Member (J) Honble Mrs. Manjulika Gautam, Member (A) Mehak Singh, S/o Sh. Bhawar Singh, R/o 9/16, Nehru Nagar, Lajpat Nagar, New Delhi. -Applicant (By Advocate Shri A.K. Bhakt) -Versus- Govt. of NCT Delhi & Ors. through: 1. The Chief Secretary, Govt. of NCT of Delhi I.P. Estate, New Delhi. 2. Chief Executive Officer, Delhi Jal Board, Varunalya Bhawan, Phase-II, Jhandewalan, Karol Bagh, New Delhi. 3. Administrative Officer, Delhi Jal Board, Govt. of NCT of Delhi, Varunalya Bhawan, Phase-II, Jhandewalan, Karol Bagh, New Delhi. -Respondents (By Advocate Shri N.K. Pandey) O R D E R (ORAL) Mr. M.L. Chauhan, Member (J):
Applicant has filed this OA, thereby praying for the following reliefs:
(i) Direct the respondents to grant the benefits of promotion w.e.f. 20.06.2003 in Grade I in pay scale of 4500-6000 and further grant the special Grade in pay scale 5000-8000/- with effect from 20.06.2006 in terms of office order No.125 (DIST.) dated 13.06.2002 with consequential benefits.
(ii) Direct the respondents to produce the records of the case.
(iii) Award exemplary costs for harassment of the applicant.
Pass such further order or orders which this Honble Tribunal may deem fit and proper in the facts and circumstances of the present case.
2. As can be seen from the prayer clause the grievance of the applicant, who is a Driver Grade-II, is that he should have been promoted in Grade-I w.e.f. 20.06.2003 when he had completed 6 years of regular service and further he should have been granted special grade of Rs.5000-8000 w.e.f. 20.06.2006 after completing 3 years of service in Grade-I. However, the applicant has been promoted as Driver Grade-I along with 131 persons as Vehicle Driver Grade-I vide order dated 15.09.2008 (Annexure R-1).
3. In order to decide this controversy, few facts may be noticed. The applicant was appointed as Beldar on 1.4.1989 and later on he was promoted as Vehicle Driver w.e.f. 20.06.1997. The case projected by the applicant is that in terms of the office order No.125 dated 13.06.2002 (Annexure A-3) Vehicle Grade-II are entitled to higher pay scale of Rs.4500-6000 in grade-I after completion of the residency period of 6 years regular service in grade-II or 15 years of combined regular service in ordinary grade and in grade-II. According to the applicant, he had completed 6 years regular service on 20.06.2003 thus entitled to promotion in grade-I on that date instead of 15.09.2008 when applicant along with 131 persons was promoted in grade-I. It is on the basis of these facts applicant has filed the aforesaid OA, thereby praying for the aforesaid reliefs.
4. Notice of this application was given to the respondents, who have filed their reply, wherein they have stated that the applicant is misinterpreting the office order dated 13.06.2002 and claiming promotion from Vehicle Driver Grade-II to Grade-I from the year 2003 when he completed his residency period. It is stated that the said office order provides for restructuring of the cadre of Vehicle Driver in Delhi Jal Board in which the eligibility is considered by his minimum residency in previous scale/grade required for promotion in the next scale from ordinary grade to grade-II and grade-I of the Vehicle Drivers. However, promotion would be granted only when the availability of the candidates is achieved to the optimum and with the approval of the appointing authority. According to the respondents, in the instant case the optimum level was achieved in the year 2008 and thereafter the promotion order was issued on 15.09.2008 for 131 grade-II Vehicle Drivers, including that of the applicant. A copy of the said promotion order is annexed with the reply of the respondents as Annexure R-1. Respondents have categorically stated that none of other Vehicle Drivers Grade-II, who are much more senior to the applicant, have agitated and claimed their promotion to the grade-I on the basis of wrong and misplaced interpretation of the office order dated 13.06.2002 like the applicant. Thus, according to the respondents the claim of the applicant is required to be rejected. According to the respondents maximum number of candidates available for promotion became available in the year 2008, as such the competent authority thereafter has decided to grant promotion and accordingly the promotion order was issued on 15.09.2008.
5. Applicant has filed the rejoinder, thereby reiterating the submissions made in the OA.
6. We have heard learned counsel of the parties and gone through the material placed on record. In order to decide the matter in controversy, it will be useful to quote the relevant part of the office order No.125 dated 13.06.2002 (Annexure A/3) which thus reads:
The Delhi Jal Board vide Resolution No.1145 dated 22.12.01 has approved the restructuring of the cadre of vehicle drivers in Delhi Jal Board as per details given below on the terms & conditions as contained in G.N.C.T.D. No.FIB/3779/94-GAD/1614 dated 20.3.2011.
Sr. No. Grade/Nomenclature of the Post Previous Strength Revised Strength Residency Period required for promotion.
1. Xxx xxx xxx xxx
2. Xxx xxx xxx xxx
3. Grade-I in the pay scale of Rs.4500-6000 --- 187 (30% of the sanctioned posts 6 years of regular service in Gr. II or 15 years of combined regular service in ordinary grade & grade-II
4. Special Grade in pay scale of Rs.5000-8000 --- 26 (5% of 533 posts) 3 years regular service in Gr.I The method of appointment to the post in Grade-II, Grade-I and Special Grade Vehicle Drivers will by promotion on non-selection basis (seniority-cum-fitness) and will be further subject to passing of a trade test of appropriate standard and prescribed syllabus, as laid down in the orders issued by the Govt. of India/Govt. of NCT of Delhi.
The category of ordinary grade and Gr.II vehicle drivers would be operated to its optimum only when eligible candidates are available and with the approval of appointing authority. The above re-structuring of the cadre of vehicle drivers is effective w.e.f. 7.5.1999.
Division/DDO wise re-allocation of posts will be made separately.
7. As can be seen from the portion quoted above, on account of restructuring 187 posts of Vehicle Drivers Grade-I became available. One of the eligibility conditions for promotion is 6 years regular service in Grade-II. The aforesaid order, inter alia, stipulates that the method of appointment to the post of grade-I Vehicle Driver will be by promotion, subject to passing of a trade test of appropriate standard and prescribed syllabus and further that the category of ordinary grade and grade-II Vehicle Driver would be operated to its optimum only when eligible candidates are available and with the approval of the appointing authority.
8. Simply because the applicant has put in 6 years of regular service in the Grade-II cannot claim promotion in Grade-I solely on this ground, as promotion in Grade-I has to be made subject to passing of the trade test of appropriate standard and prescribed syllabus, as laid down in the order issued by the Govt. of India/Govt. of NCT of Delhi. That apart, as per the aforesaid order promotion ordered according to the aforesaid restructuring has to be operative to its optimum only when eligible candidates are available with the approval of the Competent Authority. In the instant case the respondents have decided to grant promotion to Grade-I when sufficient numbers of candidates were available and thus applicant along with 131 other candidates was granted promotion as Vehicle Drivers Grade-I in the pay scale of Rs.4500-6000. In view of what has been stated above, we are of the view that the applicant has no legal right to compel the respondents to grant promotion retrospectively from the date when he had completed 6 years of regular service. Further the applicant has failed to show that he has passed the trade test of appropriate standard and prescribed syllabus, which is one of the requisite conditions for grant of promotion. Be that as it may, the applicant has got no indefeasible right to be promoted retrospectively from back date simply because vacancies in Grade-I on account of restructuring became available effective from 7.5.1999 and the applicant has fulfilled the eligibility criteria in the year 2003. Law on this point is no longer res integra. At this stage, we wish to refer to the decision of the Apex Court in the case of State of Uttranchal & Anr. V. Dinesh Kumar Sharma, (2007) 1 SCC 683, wherein, in para 32 of the judgment it was observed:
32. We are also of the view that the right to constitute the selection committee against the vacancy is vested in the government, and after adopting the due procedure of selection, the respondent had been substantively appointed by an order issued by the Secretary, Agriculture, Government of U.P dated 19.11.1999 and this decision of the Government in our view does not call for interference.
9. Further it will also be relevant to quote para-34 of the aforesaid judgment, which thus reads:
34. Another issue that deserves consideration is whether the year in which the vacancy accrues can have any relevance for the purpose of determining the seniority irrespective of the fact when the persons are recruited. Here the respondent's contention is that since the vacancy arose in 1995-96 he should be given promotion and seniority from that year and not from 1999, when his actual appointment letter was issued by the appellant. This cannot be allowed as no retrospective effect can be given to the order of appointment order under the Rules nor is such contention reasonable to normal parlance. This was the view taken by this Court in the case of Jagdish Ch. Patnaik & Ors. vs. State of Orissa & Ors. 1998(4) SCC 456.
10. Thus, from the reading of paras 32 and 34 it is clear that right to constitute the selection committee against the vacancies is vested in the Government and further that no retrospective effect can be given to the order of appointment from the date when the vacancies has arisen.
11. To the similar effect is the decision of the High Court of Delhi in WP(C) No.1188-90/2005 in Union of India & Ors. v. Vijender Singh & Ors., and connected matters, whereby the High Court in para-43 after noticing the judgment of the Apex Court has held as under:
It is thus apparent that service jurisprudence does not recognize the jurisprudential concept of deemed retrospective promotion and unless there exists a rule or there exists a residual power and in exercise of the implementation of the rule or in exercise of power conferred by the residual rule a decision is taken or can be taken to grant retrospective promotion no person can claim a right to be promoted from the date when the vacancy accrued and he must take the promotion with its benefits from the date of actual promotion.
12. The matter can also be looked form another angle. The applicant has put in 6 years of regular service in grade-II on 20.06.2003 and further was granted ad hoc promotion vide order dated 15.09.2008 (Annexure R-1). Applicant did not make any grievance regarding such promotion within the period prescribed under Section 21 of the Administrative Tribunals Act, 1985. The applicant filed this OA on 14.02.2011 beyond the prescribed period under Section 21 of the Administrative Tribunals Act, 1985. Thus, applicant has neither given any explanation for this inordinate delay nor moved any application for condonation of delay. As such, the present OA cannot be entertained and is required to be dismissed. At this stage, we wish to refer to the decision of the Apex Court in the case of D.C.S. Negi v. Union of India & others, Special Leave to Appeal (Civil) No.7956/2011, decided on 7.3.2011, whereby the Apex Court after noticing the provisions of Section 21 of the Administrative Tribunals Act, 1985 has made the following observations:
"21. Limitation.-(1) A Tribunal shall not admit an application,-
(a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;
(b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.
(2) Notwithstanding anything contained in sub-section (1), where-
(a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates; and
(b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or, as the case may be, clause (b), of sub-section (1) or within a period of six months from the said date, whichever period expires later.
(3) Notwithstanding anything contained in sub-section (1) or sub-section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period."
A reading of the plain language of the above reproduced section makes it clear that the Tribunal cannot admit an application unless the same is made within the time specified in clauses (a) and (b) of Section 21(1) or Section 21(2) or an order is passed in terms of sub-section (3) for entertaining the application after the prescribed period. Since Section 21(1) is couched in negative form, it is the duty of the Tribunal to first consider whether the application is within limitation. An application can be admitted only if the same is found to have been made within the prescribed period or sufficient cause is shown for not doing so within the prescribed period and an order is passed under Section 21(3).
In the present case, the Tribunal entertained and decided the application without even adverting to the issue of limitation. Learned counsel for the petitioner tried to explain this omission by pointing out that in the reply filed on behalf of the respondents, no such objection was raised but we have not felt impressed. In our view, the Tribunal cannot abdicates its duty to act in accordance with the statute under which it is established and the fact that an objection of limitation is not raised by the respondent/non applicant is not at all relevant.
13. Thus, in view of the law laid down by the Apex Court in the case of D.C.S. Negi (supra), as reproduced above, OA can be admitted/entertained only after the same is found to have been filed within the prescribed period of limitation or sufficient cause is shown for not doing so within the prescribed period and an order is passed under Section 21 (3) of the Administrative Tribunals Act, 1985. As already stated above, since the applicant has not made any application for condonation of delay and not shown any sufficient cause, whatsoever for not filing the OA within the prescribed period of limitation, as such no order for condoning the delay in terms of Section 21 (3) of the Act can be passed.
14. For the foregoing reasons, OA is found bereft of merit, which is accordingly dismissed. No costs.
(Smt. Manjulika Gautam) (M.L. Chauhan) Member (A) Member (J) San.