Central Administrative Tribunal - Delhi
Prem Chand Gupta (Shift Incharge Gr-Ii) vs New Delhi Municipal Council on 3 May, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI OA No.1450 of 2013 This the 3rd day of May, 2013 Honble Dr. Dharam Paul Sharma, Member (J) Honble Shri Sudhir Kumar, Member (A) Prem Chand Gupta (Shift Incharge Gr-II) s/o Shri Dwarka Prasad, R/o 641, Pocket-3, Sector-19, Dwarka, New Delhi-75. Applicant (By Advocate Shri P.C. Mishra ) Versus 1. New Delhi Municipal Council, Through its Secretary, Palika Kendra, Parliament Street, New Delhi-01. 2. Director (Personnel), NDMC, Palika Kendra, Parliament Street, New Delhi. Respondents O R D E R (ORAL) Dr. Dharam Paul Sharma, Member (J) :
By way of this Application, the applicant is seeking directions to the respondents to promote him to the post of Junior Engineer (Electrical) w.e.f. 7.1.2009 against general post of 22 with consequential benefits.
2. On 21.11.2007, the recruitment rules for the post of Junior Engineer (Electrical) were amended vide Council Resolution No.6 (H-12) and as a result of which, 27 posts of Junior Engineer from outside quota were transferred to departmental quota. The bifurcation of 27 posts is as follows: General - 22, SC 4 & ST 1. On 22.12.2008, the Selection Committee after consideration of service records of 37 candidates recommended 26 candidates against 27 vacancies. One post of ST was kept vacant for non-availability of ST candidates. The posting slip dated 7.1.2009 promoting 26 persons whose names are mentioned therein to the post of Junior Engineer (Electrical) with immediate effect is at Annexure-1. The applicant made a number of representations to the respondent Council for promoting him for he being next in number to the post of Junior Engineer (Electrical) as one out of 27 vacancies has been kept vacant for ST candidates for which no eligible candidate having prescribed qualification was available. Having failed to receive any favourable response from the respondents to his representations, the applicant filed OA No.3279/11. While observing that so long as vacancy reserved for ST candidate was not de-reserved, the said vacancy could not be filled up from general community, the said OA was disposed of vide Order dated 12.9.2011 with the directions to the applicant to submit his representation within the stipulated period which would be disposed of by the appropriate authority by passing a reasoned and speaking order. In compliance of these directions, the respondents passed order dated 16.1.2012, as at Annexure-6, whereby the applicants request for de-reserving the post reserved for ST candidate and to promote him thereagainst to the post of Junior Engineer (Electrical) could not be accepted. It will be relevant to note in this regard that while passing the said order, the respondents have, inter alia, observed that the Selection Committee dated 22.12.2008 after going the service records of 37 candidates recommended 26 candidates (21 UR and 5 SC) be placed in the panel for the post of Junior Engineer (Electrical). This order dated 16.1.2012 was challenged by the applicant in OA No.279/2012 wherein he prayed that the respondents be directed to consider him for promotion to the post of Junior Engineer (Electrical) from the departmental quota from the date when the counterparts of the applicant were promoted with all consequential benefits. The said OA was dismissed as lacking in merit vide Order dated 27.2.2013.
3. The applicant has now filed the present Application seeking directions to the respondents to promote and post him w.e.f. 7.1.2009 as Junior Engineer (Electrical) on the plea that there is one post vacant for General category candidate by respondents own admission in terms of their Order dated 16.1.2013 wherein it has been submitted that Selection Committee dated 22.12.2008 recommended 26 candidates (21 UR and 5 SC). A number of post of UR being 22, there is one vacant post against which the applicant being next in number should be appointed.
4. The applicant, however, cannot resile from the stand that he has been taking consistently throughout that out of 27 vacancies that were created as a result of amendment of the Recruitment Rules in 2007, 22 were meant for General; 4 for SC and 1 for ST and the Selection Committee recommended 26 persons, i.e., 22 General and 4 SC and only 1 post meant for ST candidate was kept vacant for want of non-availability of suitable candidate. The applicant himself has been seeking de-reservation of this post meant for ST whereupon he could be appointed to the vacancy so de-reserved. He also failed to explain as to how 5 SC candidates could be appointed against 4 posts meant for SC candidates. The order dated 16.1.2012 was subject matter of challenge by the applicant in the OA No.279/2012 filed by him. The applicants counsel failed to explain as to why he has not taken up this point in the said OA. The said OA was dismissed on 27.2.2013 as referred to above. The claim of the applicant herein is hit by principles of constructive res judicata in terms of Explanation IV of Section 11 of the Code of Civil Procedure, 1908, so as to say that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. As stated earlier, the said OA was dismissed as lacking any merit vide Order dated 27.2.2013.
5. In the facts and circumstances of the case and for the reasons stated above, the applicant has failed to make out a prima facie case for the grant of relief prayed for by him in this Application. The Application is accordingly dismissed in limine.
(Sudhir Kumar) (Dr. Dharam Paul Sharma) Member (A) Member (J) /ravi/