Central Administrative Tribunal - Delhi
Sh. P.C.Meena vs The Municipal Corporation Of Delhi on 1 July, 2014
Central Administrative Tribunal
Principal Bench, New Delhi
OA NO. 3551/ 2010
Order Reserved on: 23.04.2014
Pronounced on: 01.07.2014
Honble Mr. V. Ajay Kumar, Member (J)
Honble Mr. V.N. Gaur, Member (A)
Sh. P.C.Meena
Executive Engineer (Civil),
Municipal Corporation of Delhi,
Office of Executive Engineer (M-III),
West Zone C-Block, Vishal Enclave,
New Delhi.
-Applicant
(By Advocate: Shri M.K.Bhardwaj)
VERSUS
The Municipal Corporation of Delhi, through
1. The Commissioner,
MCD,
Town Hall, Chandni Chowk,
Delhi-110006.
2. The Director Personnel,
MCD,
Town Hall, Chandni Chowk,
Delhi-110006.
-Respondents
(By Advocate: Sh. Arun Bhardwaj)
ORDER
By Honble Shri V.N.Gaur, Member (A) Brief facts of the case are that the applicant, who belongs to ST category, was appointed as Executive Engineer (Civil) in Municipal Corporation of Delhi (MCD) on ad hoc basis on promotion on 03.07.1995. Following the DPC held in the year 1996 he was given regular promotion to the post of Executive Engineer vide order dated 09.01.1997 and his name was at sl. no.16 in the select list. In the provisional seniority list that was published on 08.10.1999, the name of the applicant was shown at sl. no.18. This list was finalized vide circular dated 02.06.2000 and in that seniority list the position of the applicant was brought down to sl. no.44. The respondents had done so by applying the catch up rule laid down in the case of Ajit Singh Januja vs. State of Punjab, AIR 1996 SC 1189. According to the applicant even that the catch up rule was applied wrongly in his case as under that rule seniority of general category candidate at first promotion stage was not to be fixed above reserved category candidate. It was only at the stage of next promotion that the general category candidate could supersede the reserved category candidate. However, following a 85th amendment in the Constitution it became the law that the promotion for reserved category candidates would remain available at all the stages.
2. On 14.03.2002, MCD issued a circular restoring the seniority of the applicant at sl. no.18. However, this seniority list could not be finalised until 02.06.2010. In the final seniority list applicant is at sl. no.20. However, the officers at sl. no.23, 25, 26, 35, 37, 38 & 44 who were junior to the applicant are presently working as Chief Engineers. These junior persons were promoted as Superintending Engineer on ad hoc basis during the period 2000-2004. The immediate junior of the applicant was promoted as Superintending Engineer with effect from 28.07.2000 and on that date there was no disciplinary action/criminal case pending against the applicant. In the year 2002, an FIR was registered by CBI against certain officers and the name of the applicant was also mentioned in the said charge sheet. The CBI filed a closure report in that case. The disciplinary action initiated against the applicant in respect of the said irregularities was also dropped. In another case wherein the applicants name was not mentioned in FIR, the investigation report was filed in the year 2003. The name of the applicant figured in that report. The charges in that case were framed in the year 2006. The applicant has sought the following relief:
(i) To direct the respondents to give the consequential benefits of seniority list dated 02.06.2010 (Annexure A-1) to applicant.
(ii) To direct the respondents to give ad-hoc promotion to applicant as Superintending Engineer from the date of promotion of his immediate junior in seniority list dated 02.06.2010 with all consequential benefits such as further promotion as Chief Engineer and arrear of pay etc.
(iii) To direct the respondents to grant all the increment to the applicant withhold by them from due dates.
(iv) To direct the respondents to give ad-hoc promotion to the applicant w.e.f. the date of promotion of his junior.
(v) To allow the original application with cost of the litigation.
(vi) To pass such other and further order which their Lordships of this Honble Tribunal fit and proper in existing terms and circumstances of the case.
3. Learned counsel for the applicant stated that following the case of M. Nagraj & ors. vs. Union of India & ors., Writ Petition No.61/2002 decided on 19.10.2006, the law is absolutely clear with regard to the position of the applicant in the seniority list of Executive Engineers even then the respondents have promoted his juniors to the post of Superintending Engineer and Chief Engineer without considering the case of the applicant. There is only one case against the applicant in which charges were framed in the year 2006 but fact remains that on that day his immediate junior stood promoted to the post of Superintending Engineer in the year 2000. There was no charge or disciplinary proceeding against the applicant. The respondents have illegally denied promotion to the applicant despite the fact that he fulfilled all eligibility conditions and his junior got promotion. In this context the learned counsel relied on this Tribunals decision in B.S.Bola, IPS vs. UOI, OA No.1919/2008. Learned counsel for applicant also relied on the following cases:
(1) Pradeep Bansal and ors. vs. MCD and ors., WP (C) No.4337/2010 decided on 18.01.2012 by High Court of Delhi.
(2) UOI vs. Om Prakash, WP (C) No.7810/2008 decided on 27.11.2008 by High Court of Delhi.
(3) Inspr. Rajinder Singh vs. UOI, OA No.214/2011 decided on 05.07.2011 by this Tribunal.
(4) Mahavir Prasad vs. UOI & Ors., OA No.3029/2011 decided on 08.02.2013 by this Tribunal.
(5) Hariom Gupta vs. Govt. of NCT of Delhi & ors., OA No.293/2008 decided on 22.11.2008 by this Tribunal.
4. Learned counsel for the respondents in his submission stated that the circular dated 02.06.2010 is a revised final seniority list of Executive Engineer (Civil) in the General Wing of MCD appointed up to 12.08.1994. The Honble High Court of Delhi vide order dated 02.07.2010 passed in WP (C) no.4337/2010 titled Pradeep Bansal (supra) has stayed the operation of the said circular/seniority list dated 02.06.2010, and therefore, the respondents were not in a position to give effect to that seniority as prayed by the applicant. It was also submitted that applicant was facing a criminal proceeding vide case no. 1527/SIO(P)/2001/CBI as per report received from the Vigilance Department on 09.02.2011.
5. We have considered the submissions made by the learned counsels from both the sides and perused the records. The first issue for our consideration is whether there is any case pending against the applicant or not. It is an admitted fact that there is a CBI case pending against the applicant in which the charges were framed in the year 2006. The immediate junior of the applicant was promoted as Superintending Engineer on 28.07.2000. Accordingly, the applicant should at least be promoted with effect from 28.07.2000 and at that time there was no case or departmental proceeding against the applicant. The only problem was that the position of the applicant in the seniority list of Executive Engineer was not finalized due to the effect of the case of Ajit Singh Januja (supra) and 85th amendment of the Constitution of India had not been coming into force on 28.07.2000. Once these issues are settled and seniority lists have been finalized vide circular dated 02.06.2010 issued by the respondents, the applicant is entitled for consequential benefits with effect from the date his junior was promoted in the cadre. The statement of learned counsel for the respondents that seniority list dated 02.06.2010 was stayed by High Court of Delhi was contested by the learned counsel for the applicant submitting that writ petition no. 4337/2010 has been dismissed as withdrawn. The applicant has also filed a copy of the order of Honble High Court dated 18.01.2012 where the Honble High Court had dismissed the petition as withdrawn. That being the case there should be no hindrance in giving effect to the circular dated 02.06.2010 and its consequential benefits to the applicant.
6. In this view of the case, respondents are directed to give effect to the circular dated 02.06.2010 by convening review DPC in respect of the applicant to consider his promotion to the next grade with effect from the date his immediate junior was promoted to the post of Superintending Engineer and to the post of Chief Engineer keeping in view the pending criminal case against the applicant in accordance with the rules and law applicable in such circumstances. OA is disposed of accordingly. No costs.
(V.N. Gaur) (V. Ajay Kumar) Member (A) Member (J) sd