Central Administrative Tribunal - Delhi
Roop Chand vs Municipal Corporation Of Delhi on 23 September, 2024
1 OA No.1848/2023
Item No. 39 (C-3)
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 1848/2023
Reserved on : 13.09.2024
Pronounced on : 23.09.2024
Hon'ble Ms. Harvinder Kaur Oberoi, Member (J)
Hon'ble Dr. Sumeet Jerath, Member (A)
Roop Chand
S/o Sh. Prabhati @ Prabhat
R/o 130-C, Pocket-B,
Dilshad Garden, Delhi-110 095
(aged about 50 years)
(Group 'A')
(Exe. Engineer (Electrical) in MCD) ....Applicant
(By Advocate: Mr. Ajesh Luthra)
Versus
1. Municipal Corporation of Delhi
Through its Commissioner
Civic Centre, New Delhi - 110 002.
2. Union Public Service Commission,
Through the Secretary,
Dholpur House, Shahjahan Road,
New Delhi-110 069. ....Respondents
(By Advocate: Mr. R. V. Sinha, Mr. Amit Sinha, Ms. Nishi Singh,
Ms. Shriya Sharma and Mr. Dhruv Tamta)
2 OA No.1848/2023
Item No. 39 (C-3)
ORDER
Hon'ble Dr. Sumeet Jerath, Member (A):
The instant OA has been filed by the applicant Mr. Roop Chand under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs :-
"8 (a) Hold and declare that the applicant has been wrongly assigned empanelment year 2018 for promotion to the post of Executive Engineer (Electrical) whereas he is entitled to earlier vacancy year(s) i.e. 2012-2013/2013-2014 or in the alternate, 2014-2015 or 2015-2016, as the case may be
b) Direct the respondents to assign appropriate vacancy year for purposes of regular promotion to the post of Executive Engineer (ELec.) and modify order dated 11.04.2023 (Annexure A/1) accordingly.
c) accord all consequential benefits.
d) award costs of the proceedings.
e) Any other relief which this Hon'ble Tribunal deems fit and proper in favour of the applicant."
2. The factual matrix of the case as per the applicant is that he was initially appointed as a Junior Engineer (Electrical) on regular basis in Municipal Corporation of Delhi w.e.f. 29.12.2000. Later, he was promoted as Assistant Engineer (Electrical) [AE (Elec)] on regular basis vide order dated 15.10.2007. Subsequently, he was promoted as Executive Engineer (Electrical) and then Superintending Engineer 3 OA No.1848/2023 Item No. 39 (C-3) (Electrical) on ad hoc basis, along with others vide order dated 20.09.2013 and 29.10.2020 respectively. In the seniority list of AE (Elec) the applicant was placed at serial no. 38 whereas Sh. Bharat Singh Lakhpuria, Sh. Pankaj Kumar Sharma, Sh. Arun Singh Rathore, Sh. Harvinder Singh and Sh. Virender Singh were at seniority number 39, 41, 43, 45 and 47 respectively. Later, on 28.03.2023 a DPC was held in the UPSC for regular promotion to the post of Executive Engineer (Electrical) [EE (Elec.)] on year wise basis, wherein the applicant was placed at Sl. No. 18 as per the panel order dated 11.04.2023. According to him, he was entitled to be placed in the panel for 2012-13 as he met the eligibility criteria for that post and also the vacancies were available too. Pursuant to the panel order dated 11.04.2023, the respondents had issued order dated 07.06.2023 giving regular promotion to the post of EE (Electrical). In spite of having greater length of service than others, the applicant's name figured at Sl. No. 3 and he got promotion later than others. It was stated that the applicant had earned degree in Electrical Engineering from Jamia Millia University, Delhi in 2012 which was in consonance with the recruitment rules dated 24.08.1974. Hence, he was entitled to be considered for promotion for the vacancy year 2012-13 and if not then 2013-14 4 OA No.1848/2023 Item No. 39 (C-3) in case the date of eligibility fell later to the year 2012-13. It was further submitted that he had never been under a cloud and his service record was unblemished throughout. It was further stated that the respondents had failed to amend the Recruitment Rules in sync with the 6th CPC recommendations. It was further submitted that various juniors of the applicant had been assigned vacancy year 2016-17 ignoring the applicant even after he acquired the required degree qualification in the year 2012 itself. Aggrieved, the applicant submitted representation dated 02.05.2023 followed by reminder dated 24.05.2023 which have not been considered and hence, the instant OA.
3. Para 11 of the Recruitment Regulations (RRs) for the post of Executive Engineer (Electrical) framed vide Notification No. F.2(277)/73-LSG dated 24.08.1974 issued by Delhi Administration, Delhi (Local Self Govt., Department) reads as follows:-
"11. In case of recruitment by : Promotion :-
promotion/deputation/transfer Assistant Engineer grades from which promotion/ (Electrical) with 5 years deputation/transfer to be made. Service in the grade in the case of those possessing degree in Electrical Engineering and 10 year Service in the grade in the Case of those possessing a Diploma in Electrical Engineering.5 OA No.1848/2023
Item No. 39 (C-3) Transfer/deputation:Officers holding analogous post in Central Public Works Department or in any other Central Govt., Department. (Period of deputation-
ordinarily not exceeding 3 years)."
4. The learned counsel of respondent no. 1 - MCD argued that in the light of the above RRs dated 24.08.1974 and the ratio given in following Hon'ble Apex Court Judgments :-
(i) N. Suresh Nathan & Another vs. Union of India & Ors. CA No. 004542/1991 ;
(ii) R. Prabhadevi and Others vs. Union of India and others [1985] 2 SCC 468 and
(iii) K. K. Dixit & Ors. Etc. vs. Rajasthan Hosing Board & Anr. etc., (2015) The Govt. officer who is recruited on the basis of 'Diploma' but later acquires the qualification of 'Degree' is not entitled to count his experience of service prior to acquisition of Degree or promotion to the next post. In order to claim promotion the five years experience of service must be acquired after obtaining the qualification of degree ; that the applicant after obtaining the degree of Bachelor of Engineering in Electrical from Jamia Millia University in 2012 ; and after completion of 5 years of 6 OA No.1848/2023 Item No. 39 (C-3) service became eligible for consideration in year 2017 and therefore was considered for promotion in the year 2018. The applicant's contention that his eligibility may be counted for the vacancy year 2012-2013 or 2013-2014 is not tenable as the requisite length of service i.e., 5 years cannot be counted prior to 2012.
5. The ratio given by the Apex court in case of N. Suresh Nathan & Another vs. Union of India & Ors. (Supra) is as follows :-
"In our opinion, this appeal has to be allowed. There is sufficient material including the admission of respondents Diploma-holders that the practice followed in the Department for a long time was that in the case of Diploma- holder Junior Engineers who obtained the Degree during service, the period of three years' service in the grade for eligibility for promotion as Degree-holders commenced from the date of obtaining the Degree and the earlier period of service as Diploma-holders was not counted for this purpose. This earlier practice was clearly admitted by the respondents Diploma-holders in para 5 of their application made to the Tribunal at page 115 of the paper book. This also appears to be the view of the Union Public Service Commission contained in their letter dated December 6, 1968 extracted at pages 99-100 of the paper book in the counter affidavit of respondents 1 to 3. The real question, therefore, is whether the construction made of this provision in the rules on which the past practice extending over a long period is based is untenable to require upsetting it. If the past practice is based on one of the possible constructions which can be made of the rules then upsetting the same now would not be appropriate. It is in this perspective that the question raised has to be determined. The Recruitment Rules for the post of Assistant Engineers in the P.W.D. (Annexure-C) are at pages 57 to 59 of the paper book. Rule 7 lays down the qualifications for direct recruitment from the two sources, namely, Degree-holders and Diploma-7 OA No.1848/2023
Item No. 39 (C-3) holders with three years' professional experience. In other words, a Degree is equated to Diploma with three years' professional experience. Rule 11 provides for recruitment by promotion from the grade of Section Officers now called Junior Engineers. There are two categories provided therein
- one is of Degree-holder Junior Engineers with three years' service in the grade and the other is of Diploma holder Junior Engineers with six years' service in the grade, the provision being for 50% from each category. This matches with Rule 7 wherein a Degree is equated with Diploma with three years professional experience. In the first category meant for Degree-holders, it is also provided that if Degree- holders with three years' service in the grade are not available in sufficient number, then Diploma-holders with six years' service in the grade may be considered in the category of Degree-holders also for the 50% vacancies meant for them. The entire scheme, therefore, does indicate that the period of three years' service in the grade required for Degree-holders according to Rule 11 as the qualification for promotion in that category must mean three years' service in the grade as a Degree holder and, therefore, that period of three years can commence only from the date of obtaining the Degree and not earlier. The service in the grade as a Diploma-holder prior to obtaining the Degree cannot be counted as service in the grade with a Degree for the purpose of three years' service as a Degree holder. The only question before us is of the construction of the provision and not of the validity thereof and, therefore, we are only required to construe the meaning of the provision. In our opinion, the contention of the appellants Degree- holders that the rules must be construed to mean that the three years' service in the grade of a Degree holder for the purpose of Rule 11 is three years from the date of obtaining the Degree is quite tenable and commends to us being in conformity with the past practice followed consistently. It has also been so under-stood by all concerned till the raising of the present controversy recently by the respondents, The tribunal was, therefore, not justified in taking the contrary view and unsettling the settled practice in the Department."
6. The ratio given by the Apex Court in case of R. Prabhadevi and Others vs. Union of India and others (supra) is as follows :-
"Seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfils the 8 OA No.1848/2023 Item No. 39 (C-3) eligibility condition prescribed by the relevant rules. A person must be eligible for promotion having regard to the qualifications prescribed for the 158 post before he can be considered for promotion. Seniority will be relevant only amongst persons eligible. Seniority cannot be substituted for eligibility nor it can over-ride it in the matter of promotion to the next higher post."
7. The ratio given by the Apex Court in case of K. K. Dixit & Ors. Etc. vs. Rajasthan Hosing Board & Anr. etc., (Supra) is as follows :-
"34. In the light of aforesaid discussions, we find merit in these appeals and they are accordingly allowed to the extent of reversing the views of the High Court in respect of Question no.2 as noted by the Division Bench in the common judgment under appeal. We hold that the Project Engineers (Junior) recruited on the basis of diploma, upon their acquiring the qualification of 'AMIE', are not entitled to count their experience of service prior to acquisition of such qualification for the purpose of eligibility for promotion to the post of Project Engineer (Senior) against the 20% quota fixed for promotion of degree holder Project Engineers (Junior). In order to claim promotion against such 20% quota the three years' experience of service must be acquired after obtaining the qualification or degree of AMIE.
35. We direct the Board and its authorities to treat the writ petitions filed in the High Court as disposed of in the light of our aforesaid views and to determine the controversies raised in the writ petitions in that light by granting relief to the eligible persons expeditiously and preferably within 4 months, without upsetting the transactions which had taken place earlier and were not under challenge in the writ petitions. In other words, the regular promotions made in the past prior to 1992, which were not subject matter of writ petitions filed in 1992 will not be re-opened on account of views expressed in this judgment.
36. In the facts and circumstances of the case, there shall be no order as to costs."9 OA No.1848/2023
Item No. 39 (C-3)
8. The learned counsel of respondent no. 2 - UPSC also made his averments on the lines of counsel of respondent - 1 - MCD, Delhi and relied upon the ratio given in Apex Court Judgment of N. Suresh Nathan & Another vs. Union of India & Ors. (supra) :-
"....In our opinion, the contention of the applicants Degree- holders that the rules must be construed to mean that the three years' service in the grade of a Degree holder for the purpose of Rule 11 is three years from the date of obtaining the Degree is quite tenable and comments to us being in conformity with the past practice followed consistently. It has also been under-stood by all concerned till the raising of the present controversy recently by the respondents. The tribunal was, therefore, not justified in taking the contrary view and unsettling the settled practice in the Department.
Consequently the appeal is allowed. The impugned order of the Tribunal is set aside resulting in dismissal of the respondents application made in the Tribunal The Department will now consider the question of promotion in accordance with this decision. No costs."
9. He further pleaded that respondent no. 2 - UPSC should be removed from the array of respondents as UPSC had only limited role in the instant OA.
10. However, the learned counsel of the applicant vociferously argued that the applicant had a deserving case as the RRs of 24.08.1974 were silent on the provision as to from which date the period of 5 years experience should be considered - from the year he acquired the 'degree' of Electrical 10 OA No.1848/2023 Item No. 39 (C-3) Engineering in 2012 or from the year 2007 when he was promoted as Assistant Engineer (Electrical) on regular basis. Nowhere has it been mentioned in RRs that minimum of 5 years experience should be counted from the year of acquisition of degree. He also relied on the following Apex Court judgments :-
(i) M. B. Joshi and others vs. Satish Kumar Pandey and others in Civil Appeal No. 4255 of 1992 with Ram Sharan Gupta and Others vs. State of M.P. and others in Civil Appeal No. 4256 of 1992 and N N Asthana and Another vs. Harish Kumar Ahuja and Others in Civil Appeal No. 4257 of 1992 dated 15.10.1992 ;
(ii) D. Stephen Joseph vs. UOI and others in Civil Appeal No. 3118 of 1997 and
(iii) T. Valsan (dead) Through Legal representatives and Others vs. K. Kangaraj and others in Civil Appeal No. 3466-68 of 2023 dated 08.05.2023.
The counsel of the applicant quoted paras 1, 2 and 13 of the judgment in M. B. Joshi and others (supra) :-
"The Tribunal was wrong in determining the seniority from the date of acquiring degree of engineering. It ought to have been determined on the basis of length of service on 11 OA No.1848/2023 Item No. 39 (C-3) the post of Sub-Engineer as was done by the State Government. Determination of seniority from the date of acquiring the degree would defeat the very scheme and the purpose of giving incentive of adding educational qualification by diploma-holders while continuing in service. The Rules do not contemplate any equivalence of any period of service with the qualification of acquiring degree of graduation in engineering as was provided in express terms in N. Suresh Nathan case. The Government itself has been adopting the practice and making promotion by taking into account entire period of service as Sub-Engineer. In N. Suresh Nathan case also the Court had upheld the practice followed by the Government. It is also a well-settled principle of service jurisprudence that in the absence of any specific rule, the seniority amongst persons holding similar posts in the same cadre has to be determined on the basis of the length of service and not on any other fortuitous circumstances.
2. All the above appeals are disposed of by a common order, as identical questions of law are involved in these cases. For the purpose of understanding the controversy raised in all these cases, we are stating the facts of appeal arising out of special leave petition No. 2507 of 1992. The appellants and the private respondents were Sub Engineers in Public Health Engineering Department of Government of Madhya Pradesh. They are governed by Madhya Pradesh Public Health Engineering (Gazetted) Service Rules 1980 (hereinafter referred to as 'the Rules'). Under Schedule IV of the Rules, the next higher post for promotion from the post of Sub-Engineers in Civil or Mechanical is the post of Assistant Engineers. The minimum period for Sub Engineer to qualify for promotion to the post of Assistant Engineer is 12 years for diploma-holders and 8 years for such Sub- Engineers who obtain degree of graduation in the course of service. Earlier 60 per cent quota for the posts of Assistant Engineers was fixed by direct recruitment and 40 percent by promotion from the Sub-Engineers, Draftsman and Head Draftsman. By and executive order dated 7.2.1989, quota of direct recruitment was reduced to 50 percent and the quota by promotion increased to 50 per cent. This 50 per cent quota by promotion with which we are concerned in the above cases has been sub-divided in the following manner:-
(i) Diploma holder Sub-Engineers completing 12 years of service - 35%
(ii) Draftsman & Head Draftsman completing 12 years of service - 5%
(iii) Graduate Sub-Engineers completing 8 years of service -
10% 12 OA No.1848/2023 Item No. 39 (C-3)
13. If we accept the contention of Mr. Ashok Sen, it would defeat the very scheme and the purpose of giving incentive of adding educational qualification by diploma-holders while continuing in service in case the period of 8 years' is counted from the date of obtaining graduate degree in engineering. It may be noted that no such argument was raised even from the side of the respondents before the Tribunal. If such interpretation as now sought to be advanced by Mr. Ashok Sen, learned senior counsel is accepted, no relief could have been granted to the respondent Satish Kumar Pandey. We would illustrate the above position on admitted facts that Shri Satish Kumar Pandey had joined as Sub-Engineer on 23.8.1980, but had acquired the degree of engineering in May, 1987. In that situation, Mr. Satish Kumar becomes eligible only in May 1995 and he could not be considered as eligible in December 1989 when these Sub-Engineers were considered for promotion as Assistant Engineers. Even otherwise, if this period of 8 years is counted from the date of acquiring degree then this incentive of adding the qualification during the continuation of service and getting the advantage of acceleration in promotion in 8 years would for all practical purposes become nugatory and of no benefit." This judgment distinguishes the judgment given in N. Suresh Nathan vs. UOI (supra).
11. The counsel of the applicant further distinguished the judgment given in N. Suresh Nathan vs. UOI (spura) by quoting para 5 of the judgment in D. Stephen Joseph (supra) which reads as under :-
"5. It appears to us that the State Government is labouring under a wrong impression as to the applicability of the past practice as indicated in Suresh Nathan case. This Court in the said decision, has only Indicated that past practice should not be upset provided such practice conforms to the rule for promotion and consistently for some time past the rule has been made applicable in a particular manner. In our view, the decision in Nathan case only indicates that past practice must be referable to the applicability of the rule by Interpreting it in a particular manner consistently for some 13 OA No.1848/2023 Item No. 39 (C-3) time. Any past practice dehors the rule cannot be taken into consideration as past practice consistently followed for long by interpreting the rule. It may be indicated here that a similar question also came up for consideration before this Court in M.B. Joshi v. Satish Kumar Pandey. The decision in Suresh Nathan case was distinguished in the facts of that case and it was indicated that when the language of the rule is quite specific that if a particular length of service in the feeder post together with educational qualification enables a candidate to be considered for promotion, it will not be proper to count the experience only from the date of acquisition of superior educational qualification because such interpretation will violate the very purpose to give incentive to the employee to acquire higher education."
12. The counsel of the applicant quoted the following paras from the judgment of Hon'ble Apex Court in T. Valsan vs. K. Kanagaraj & Others :-
"9. The High Court held in favour of the respondents by allowing the writ petition while relying on the judgment in D. Stephen Joseph case. In this behalf, the judgment in M.B. Joshi v. Satish Kumar Pandey was also relied upon by the High Court, which had been cited in D. Stephen Joseph case qua the aspect of interpretation of service rules. The said case opined that when a Rule is quite specific, it would not be proper to count the experience only from the date of acquisition of the superior educational qualification because such an interpretation will violate the purpose to incentivise the employee to acquire higher education. The relevant past practice followed by the Department being to the same effect, the practice of considering the tenure of a Junior Engineer as a whole was said to have acquired the status of a Rule of the Department.
25. In our view, one of the important aspects is the wording of the Rule itself. According to the Rules, 50% of the promotion quota is from Junior Engineers with three years of regular service in the grade "and" possessing a degree in Electrical Engineering. The Rule does not say from which date the time period of regular service has to be counted, but there is a twin requirement of three years of regular service as also a degree. As against this, the second scheme of 50% promotion from Junior Engineers uses the word "with" seven years of regular service in the grade and possessing a diploma in Electrical Engineering. Thus, the 14 OA No.1848/2023 Item No. 39 (C-3) distinction is between the diploma holder and the degree holder and the period of service rendered as a Junior Engineer without any distinction between the years served prior to or after having obtained the degree. Accepting the plea of the appellant would amount to insertion into the requirement of the Rules, which is not stipulated. Further, this is how the Rule has been understood by the Department, the framers of the Rules, and accordingly, the Rules have been uniformly implemented in the Electricity Department over a period of time. In view of the above, due weightage must be given to the view of the framers of the Rules.
Conclusion
26. In view of the aforesaid, we uphold the view taken by the High Court opining that there is no distinction between the time period served before or after the acquisition of the degree so long as the degree is acquired and is the basis for consideration of the promotion. We are, thus, of the view that for all the aforesaid reasons for the Department in question, the view taken in D. Stephen Joseph² is held to be applicable law, and we answer the reference accordingly,
27. The appeals are accordingly dismissed."
This judgment distinguished the judgment given in Shailendra Denia vs. S. P. Dubey (2007) and K. K. Dixit & Ors. vs. Rajasthan Housing Board (2014).
13. Heard the learned counsel of the parties ; examined the documents on record and perused the relevant judgments of the Hon'ble Apex Court.
14. We have observed that the Recruitment Rules (RRs) for the post Executive Engineer (Electrical) framed vide Notification No. F2(277)/73-LSG dated 24.08.1974 issued by Delhi 15 OA No.1848/2023 Item No. 39 (C-3) Administration, Delhi (Local Self Government Department) vide para 11 reads as follows :-
"11. In case of recruitment by : Promotion :-
promotion/deputation/transfer Assistant Engineer grades from which promotion/ (Electrical) with 5 years deputation/transfer to be made. Service in the grade in the case of those possessing degree in Electrical Engineering and 10 year Service in the grade in the Case of those possessing a Diploma in Electrical Engineering.
Transfer/deputation:Officers holding analogous post in Central Public Works Department or in any other Central Govt., Department. (Period of deputation-
ordinarily not exceeding 3 years)."
From a plain reading of the above, it is abundantly clear that they are silent on the cut off date as to from where the period of 5 years experience would be counted - from the year the applicant acquired the degree of Electrical Engineering in 2012 or from the year 2007 when he was promoted as Assistant Engineer (Electrical) on regular basis. It is seen that no where it has been mentioned in RRs that minimum of 5 years experience should be counted from the year of acquisition of degree in Electrical Engineering. Also the ratio given in the following Apex Court judgments :-
16 OA No.1848/2023
Item No. 39 (C-3)
(iv) M. B. Joshi and others vs. Satish Kumar Pandey and others in Civil Appeal No. 4255 of 1992 with Ram Sharan Gupta and Others vs. State of M.P. and others in Civil Appeal No. 4256 of 1992 and N N Asthana and Another vs. Harish Kumar Ahuja and Others in Civil Appeal No. 4257 of 1992 dated 15.10.1992 ;
(v) D. Stephen Joseph vs. UOI and others in Civil Appeal No. 3118 of 1997 and
(vi) T. Valsan (dead) Through Legal representatives and Others vs. K. Kangaraj and others in Civil Appeal No. 3466-68 of 2023 dated 08.05.2023.
quoted by the counsel for the applicants, have overridden the ratio given in the following Apex Court judgments in :-
(i) N. Suresh Nathan & Another vs. Union of India & Ors.
CA No. 004542/1991 ;
(ii) R. Prabhadevi and Others vs. Union of India and others [1985] 2 SCC 468 and
(iii) K. K. Dixit & Ors. Etc. vs. Rajasthan Hosing Board & Anr. etc., (2015) quoted by the counsel for the respondents. The decisions given in M. B. Joshi, D. Stephen Joseph and T. Valsans' case 17 OA No.1848/2023 Item No. 39 (C-3) (supra) have distinguished the decisions given in N. Suresh Nathan, R. Prabhadevi and K. K. Dixits' case (supra).
15. In the light of the above, we are of the firm conviction that when language of the rule is quite specific that if a particular length of service in the feeder post together with educational qualification enables a candidate to be considered for promotion, it will not be proper to count the experience only from the date of acquisition of superior educational qualification because such interpretation will violate the very purpose to give incentive to the employee to acquire higher education.
16. The applicant was promoted as Assistant Engineer (Electrical) on regular basis in the year 2007. He later earned a degree in Electrical Engineering from Jamia Millia University in 2012. His minimum of 5 years experience should rightfully be counted from 2007 and not from 2012. If his minimum of 5 years experience is counted from 2012 than this interpretation would be prejudicial to him and de motivate him to earn superior higher degree.
17. Accordingly with the balance of convenience clearly in favour of the applicant and the instant OA having merit, the OA 18 OA No.1848/2023 Item No. 39 (C-3) is allowed. We hold that the applicant has been wrongly assigned empanelment year 2018 for promotion to the post of Executive Engineer (Electrical) whereas he is entitled to early vacancy years i.e., 2012-13/2013-14. We, therefore, direct the respondents to hold a review DPC and assign appropriate vacancy year for purposes of regular promotion to the post of Executive Engineer (Electrical) and modify the order dated 11.04.2023. There shall however be no order as to costs.
(Dr. Sumeet Jerath) (Harvinder Kaur Oberoi)
Member (A) Member (J)
/Mbt/