Central Administrative Tribunal - Delhi
Vinod Kumar Garg vs New Delhi Municipal Council on 12 January, 2024
1
O.A. No.18/2020
Item No.12
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.18/2020
Order reserved on 02nd January, 2024
Order pronounced on 12th January, 2024
Hon'ble Ms. Harvinder Kaur Oberoi, Member (J)
Hon'ble Dr. Anand S Khati, Member (A)
1. Vinod Kumar Garg, aged about 72 years
Retired as Executive Engineer (Civil)
Group 'A'
New Delhi Municipal Council
r/o R-6/5CC, Raj Nagar
Ghaziabad, Uttar Pradesh-201002
2. Chander Mohan Oberoi, aged about 70 years
Retired as Executive Engineer (Civil)
Group 'A'
New Delhi Municipal Council
r/o 1602/Tower-7,
Vipul Belmonte
Sector 33, Gurgaon 122011
3. Pravesh Kumar Chugh, aged about 66 years
Retired as Executive Engineer (Civil)
Group 'A'
New Delhi Municipal Council
r/o 1210, Mukherjee Nagar, Delhi 110 009
4. Krishan Lal Suri, aged about 70 years
Retired as Executive Engineer (Civil)
Group 'A'
New Delhi Municipal Council
r/o B-73, NDMC Employee Co. Group Housing
Society, H-3 Block Vikaspuri,
New Delhi - 110 018
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O.A. No.18/2020
Item No.12
5. Rakesh Kumar Kapoor, aged about 66 years
Retired as Executive Engineer (Civil)
Group 'A'
New Delhi Municipal Council
r/o WZ-97, Street No.7
Virender Nagar, Janakpuri,
New Delhi - 110 058
6. S K Lamba, aged about 64 years
Retired as Executive Engineer (Civil)
Group 'A'
New Delhi Municipal Council
r/o BB-24 D, Janakpuri, New Delhi - 110 058
7. C M Narang, aged about 72 years
Retired as Executive Engineer (Civil)
Group 'A'
New Delhi Municipal Council
r/o C-249, Golf View Apartment
Saket, New Delhi - 110 017
8. Arjun Kumar Bhambani, aged about 70 years
Retired as Executive Engineer (Civil)
Group 'A'
New Delhi Municipal Council
r/o CSC/10-B, Janakpuri,
New Delhi - 110 058
9. R K Singh, aged about 68 years
Retired as Executive Engineer (Civil)
Group 'A'
New Delhi Municipal Council
r/o Flat No.164, Srivinayak Apartment
Plot No.5 C, Sector 22,
Dwarka, New Delhi - 110 077
10. D K Girotra, aged about 69 years
Retired as Executive Engineer (Civil)
Group 'A'
New Delhi Municipal Council
r/o C-22, Dayanand Colony,
New Delhi - 110 024
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O.A. No.18/2020
Item No.12
11. Man Mohan Singh Chawla, aged about 70 years
Retired as Executive Engineer (Civil)
Group 'A'
New Delhi Municipal Council
r/o AD-36 A, Shalimar Bagh
Delhi - 110 088
12. Gajinder Singh Kohli aged about 67 years
Retired as Executive Engineer (Civil)
Group 'A'
New Delhi Municipal Council
r/o H. No.4667, Sector 23 A
Gurgaon, Haryana - 122 001
13. Beni Krishan Gupta, aged about 68 years
Retired as Executive Engineer (Civil)
Group 'A'
New Delhi Municipal Council
r/o 59, Geeta Apptt. Colony
Delhi - 110 031
14. R K Theraja, aged about 69 years
Retired as Executive Engineer (Civil)
Group 'A'
New Delhi Municipal Council
r/o 26/171, West Patel Nagar
New Delhi - 110 008
15. Balvir Singh, aged about 67 years
Retired as Executive Engineer (Civil)
Group 'A'
New Delhi Municipal Council
r/o A-172, Sector 31, Noida 201301
16. P K Bajaj, aged about 69 years
Retired as Executive Engineer (Civil)
Group 'A'
New Delhi Municipal Council
r/o 2/31, Sarvapriya VIhar, New Delhi - 110 016
17. Rakesh Kumar, aged about 67 years
Retired as Executive Engineer (Civil)
Group 'A'
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O.A. No.18/2020
Item No.12
New Delhi Municipal Council
r/o RZ/532, Dwarkapuri, Vijay Enclave
New Delhi - 110 045
18. D P Singh aged about 67 years
Retired as Executive Engineer (Civil)
Group 'A'
New Delhi Municipal Council
r/o G-24, Sector 56, Noida
Uttar Pradesh - 201301
.Applicants
(Ms. Akanksha Choudhary, Advocate)
Versus
1. New Delhi Municipal Council
Through Chairman
Palika Kendra
Parliament Street, New Delhi - 110 001
2. Chairman
New Delhi Municipal Council
Palika Kendra
Parliament Street, New Delhi - 110 001
3. Director (Personnel)
New Delhi Municipal Council
Palika Kendra
Parliament Street, New Delhi - 110 001
...Respondents
(Ms. Sriparna Chatterjee, Advocate)
ORDER
Ms. Harvinder Oberoi:
Succinctly, the facts of the case are that the applicants joined New Delhi Municipal Council (NDMC) as Junior Engineers (Civil) in the years 1971 to 5 O.A. No.18/2020 Item No.12 1976 and later on promoted to the next post of Assistant Engineer (Civil) in the pay scale of Rs.6500-10500.
Vide office order dated 06.04.1999, the NDMC took a decision to extend the benefit of Time Bound Promotional Scales (TBPS) to the employees, who are being covered under Shiv Shankaran (SS) pay scales in accordance with Delhi Vidyut Board (DVB)'s office order dated 23.07.1997, which stipulates that the employees were eligible for 1st time bound promotion on completion of ten years and second time bound promotion on completion of eighteen years of service from the date of appointment on regular basis, subject to the condition that the appointment on regular basis has been done as per the Recruitment Rules.
2. As per the Resolution No.3 (xviii) dated 27.08.2002 along with subsequent amendment to Resolution dated 19.04.2006, the Assistant Engineer (Electrical) was to be granted the Delhi Transco Limited (DTL) pay scales of Rs.7750-14500 w.e.f. 01.01.1996, which was confirmed vide office order 6 O.A. No.18/2020 Item No.12 dated 14.10.2002. The applicants came to be promoted to the post of Executive Engineer (Civil) on ad hoc basis as per the new Recruitment Rules notified on 15.09.2004.
3. The NDMC implemented the DTL pay scales while providing TBPS, but it failed to grant the same at the time of promotion. It is the case of the applicants that though they had become eligible for promotion as Executive Engineer (Civil) on completion of eight years of regular service as Assistant Engineer (Civil) and thereafter as Superintendent Engineer (Civil), they were not granted the same on regular basis by convening the meeting of Departmental Promotion Committee (DPC) in time. Due to this, no DPC could be convened since 2005.
4. Further, the Bharat Bhushan Committee in the year 2009 recommended that those employees, who have been left out of the benefit of SS scales, were to be granted 1st time bound promotion on completion of ten 7 O.A. No.18/2020 Item No.12 years, 2nd time bound promotion on completion of 18 years and 3rd time bound promotion on completion of 26 years of qualifying service. Accordingly, vide Resolution dated 22.07.2009 issued by the NDMC, it was resolved that those employees, who have been left out of the benefit of SS pay scales, will also be provided the benefit of the same. Based upon this, the SS pay scales were granted to all left out categories of employees of NDMC w.e.f. 01.04.1998, vide office order dated 02.0.2014, which included the applicants.
5. Vide office order dated 05.09.2016 issued by the NDMC, it was reiterated that DTL pay scales are to be granted to the left out categories of NDMC employees, as had been recommended. However, the NDMC continued to delay the implementation of the same without any plausible reason. Subsequently, during 2016-17, the NDMC improperly granted SS/DTL scales to the applicants by not granting 2nd TBP w.e.f. 01.04.1998 or subsequently 3rd TBP w.e.f. 01.07.2006, which was their rightful claim. Dissatisfied, the similarly situated employees filed O.A. No.4057/2016 8 O.A. No.18/2020 Item No.12 before this Tribunal, wherein vide order dated 08.12.2016, the respondents were directed to revise the pension of the applicants by giving all benefits pertaining to pay fixation and revised pension along with other similarly placed persons as per the chronology of the date of their retirement.
6. Subsequent to this, an office order dated 17.03.2017 was passed by the NDMC, wherein the pay scale of Assistant Engineer (Electric) was revised to Rs.7750-14500 w.e.f. 01.01.1996 while giving the rationale that the pay scale of this post should be brought in parity with the pay scale of Assistant Engineer (Civil). Vide order dated 23.03.2017, the NDMC clarified that no case of TBPS/ACPs/MACPs will be reopened in cases where pension has already been settled.
7. An office order dated 13.09.2017 was passed by the NDMC wherein grant of 3rd TBPS was approved to only those Junior Engineers, who have been appointed 9 O.A. No.18/2020 Item No.12 on regular basis as per Recruitment Rules to the second promotional grade of Executive Engineer, while ignoring the earlier recommendations of Bharat Bhushan Committee and the directions of this Tribunal in O.A. No.4057/2016. Since the implementation of directions in O.A. No.4057/2016 was restricted to only aggrieved officers, who were before the Tribunal, some of the applicants filed O.A. No.3735/2017. This O.A. was disposed of vide order dated 27.10.2017 directing the respondents to take decision on the representations of the applicants, keeping in view the pay fixation order dated 16.09.2016, order passed in O.A. No.4057/2016 and implementation thereof as also other related factors by passing a reasoned order.
8. Since the aforesaid order of the Tribunal was not implemented by the respondents, the applicants filed C.P. No.156/2018, which was disposed of on 19.11.2018 directing the NDMC to complete the process of implementation of DTL scales within two months. However, the MACP benefits, which were granted to most of the applicants, were withdrawn in 2018-19 10 O.A. No.18/2020 Item No.12 while simultaneously denying them the right of 3rd TBPS w.e.f. 01.07.2006. It is the case of the applicants that while the MACP benefits had been granted to them, as if they were in regular service under 6th CPC but when the opportunity to grant them the 3rd TBPS in DTL scales arose, the same has been denied to them on the pretext that they were ad hoc.
9. In March, 2019, the applicants preferred the representations to NDMC, stating that due to arbitrary implementation of office orders granting 2nd TBPS w.e.f. 28.01.2002 in an illegal manner, the arrears have been reduced, despite there being directions issued by this Tribunal. Thereafter, various representations have been preferred by the applicants but none of them have been decided by the respondents. Hence, the present O.A. seeking the following reliefs:-
"a) That this Hon'ble Tribunal be pleased to direct the Respondents to place all the relevant records pertaining to the present Original Application before the Hon'ble Tribunal in the interest of justice.11 O.A. No.18/2020
Item No.12
b) That this Hon'ble Tribunal be pleased to implement 2nd TBPS w.e.f. 01.04.1998 and 3rd TBPS w.e.f. 01.07.2006 or from the date of adhoc promotion on the post of Executive Engineer for all the Applicants along with other retirement / pensionary benefits and financial dues;
c) That this Hon'ble Tribunal may be pleased to quash and set aside recommendations of Screening Committee which held that the Applicants should be granted 2nd TBPS w.e.f. 28.01.2002 as per scales in terms of Office Order dated 13.09.2017;
d) That this Hon'ble Tribunal be further pleased to grant the benefits long with 18% interest thereon;
e) That the litigation costs and other miscellaneous costs of this Application amounting to Rs.1,00,000 be provided for;
f) Any other and further orders as this Hon'ble Tribunal may deem fit in the nature and circumstances of the case be granted."
10. Per contra, the respondents have filed a detailed counter reply. They have taken a preliminary objection that the O.A. is barred by law of limitation. It is submitted that the NDMC vide order dated 02.062014, in pursuance to its Resolution dated 22.07.2009, granted the DTL pay scales to all the employees of the left out categories of NDMC. Accordingly, the cause of action for the first time arose in favour of the applicants 12 O.A. No.18/2020 Item No.12 on 16.09.2016 when their pay was fixed in terms of DTL pay scales. However, the applicants chose not to challenge these provisions till they ensured that they have received the entire payments under the DTL pay scales after fixation of pay and pension.
11. On facts, the respondents have submitted that that for grant of 2nd TBPS after completion of 18 years, it was necessary that in case of class 1 officer, 2nd TBPS would be given to such officers, who have been appointed on regular basis as per the Recruitment Rules in their own right to the 1st promotional grade. The other condition was that TBPS would be allowed under the scheme to the next higher scale available as per the channel of promotion or in case where there is a selection or trade test provided as a condition precedent to promotion, then the next available scale shall be at the time of TBPS of that category. It is submitted that the benefit of the TBPS shall be given to the employees of NDMC on the pattern of DVB placed in identical scales whether in Ministerial/subordinate cadres or Group 'A'.
13O.A. No.18/2020 Item No.12
12. It is further submitted that the hierarchy of the cadres in the electrical establishment and civil engineering department are different. In the former establishment, the Junior Engineers would be promoted to the next higher post of Superintendent Technical till 2002. The promotional post to the post of Superintendent Technical was Assistant Engineer, which as abolished w.e.f. 28.01.2002 by merging the same with the post of Assistant Engineer. However, in the latter establishment, the next promotional post to the post of Junior Engineer was Assistant Engineer. The pay of the applicants, who were civil engineers in the civil engineering department, were fixed in the pay scale of Executive Engineer by way of granting 2nd TBPS w.e.f. 28.01.2002.
13. The applicants were granted the CPC pay scales, however, litigations were filed before the Hon'ble High Court, seeking parity and grant of DTL pay scales. In terms of the decisions of Hon'ble Supreme Court, the NDMC vide order dated02.06.2014 decided to grant DTL pay scales to all the left out categories of NDMC, 14 O.A. No.18/2020 Item No.12 including the civil engineers. Even the applicants filed O.A. No.3735/2017, claiming the same. Therefore, they cannot turn around and contend that the benefits of MACPs were more advantageous, as compared to the 3rd TBPS under the DTL pay scale.
14. Learned counsel for the applicants argued that the NDMC having failed to fulfil its obligation to convene timely DPC, it cannot be contended that the applicants should be deprived of the benefits, which they had earned because of having worked on the post of Executive Engineer for a number of years, which, admittedly, was the first promotional post.
15. Learned counsel for the applicants also argued that the ad hoc promotion was granted to the applicants after fulfilling all the requisite requirements like preparation of seniority list, zone of consideration, vigilance clearance, ACRs of the preceding five years and their work and conduct report. Mere use of the word 'ad hoc' cannot be used as a tool by the 15 O.A. No.18/2020 Item No.12 respondents, who itself is at fault, to deprive the applicants of their due entitlement.
16. Learned counsel for the respondents, on the other hand, argued that the Tribunal, in an earlier round of litigation, had noticed the scheme under order dated 06.04.1999 and had not at all tinkered with the provisions of the same; hence, it would not be open for this Tribunal to direct grant of relief, which was contrary to the scheme, as there was no denial to the fact that the applicants had not been granted regular promotion to the 1st promotional scale of Executive Engineer (Civil).
17. Learned counsel for the respondents refuted the argument put-forth by learned counsel for the applicants regarding pendency of representation preferred by the applicants. It is argued that repeated representations will not create a fresh cause of action for a stale claim. The applicants did not seek 2nd TBPS from 01.04.1998 in O.A. No.3735/2017, hence; they are 16 O.A. No.18/2020 Item No.12 stopped from raising any such contention in the present O.A. On the contrary, the applicants accepted the fixation of pay wherein 2nd TBPS was decided to be granted to the applicants from 28.01.2002.
18. We have heard the extensive arguments put-forth by learned counsel for the respective parties and perused the material placed on record.
19. The facts of the case are not complicated. On 06.04.1999, the NDMC introduced the benefit of TBPS for granting financial upgradation to its employees under the SS pay scales on the pattern that existed in DVB (now DTL). It is the admitted case of the parties that this office order, introducing the TBP scheme, was introduced only due to the stagnation of employees at various levels and the primary conditions laid down in the office order dated 06.04.1999 read as under:- 17 O.A. No.18/2020
Item No.12 "i) All the employees / officers of New Delhi Municipal Council covered under S.S. Scale shall be entitled for the first time-bound promotional scale on completion of 10 years regular service be he a subordinate / ministerial staff member of a group 'A' Officer.
ii) The second time-bound promotional scale shall be given on completion of further 8 years of service i.e. 18 years of service in all from the date of induction of an official/officer at the base level on regular basis subject to the condition that in the case of class-I officer, second time-bound promotional scale shall be given to such of the officer who have been appointed on regular basis as per Recruitment Rules in their own right to the first promotional grade."
20. In accordance with the aforesaid scheme, the applicants, who, despite being eligible, had not earned any regular promotion even after 18 years of service, were given both the first and second TBP upgradations as per the SS scales. They continued to draw the benefit of both the financial upgradation as per the TBP scheme. However, when the same benefits were withdrawn by the NDMC, one William Parashar along with others approached the Tribunal by filing O.A. No.1366/2016, which was disposed of vide order dated 16.02.2017, with a direction to the respondents to 18 O.A. No.18/2020 Item No.12 reconsider the case of the applicants. This order was challenged by the NDMC before the Hon'ble High Court of Delhi by filing W.P. (C) No.5139/2017. Vide order dated 27.07.2017, the Hon'ble High Court, finding no error in the Tribunal's order dated 16.02.2017, dismissed the W.P.
21. In this case also, the applicants have raised an issue of non-convening of regular DPC, which has marred their right for further promotions. Had the respondents held DPC in time, the applicants would have got the benefit of 2nd TBP even according to the interpretation given by the NDMC itself.
22. We find that there is merit in the submissions made by learned counsel for the applicants that since the lapse of not holding timely DPC is squarely attributable to the respondents and the applicants were admittedly working on the promotional post in a regular manner, albeit on ad hoc basis, it would be most unfair and arbitrary on the part of the 19 O.A. No.18/2020 Item No.12 respondents to deprive the applicants of the benefits under the TBPS.
23. Once the findings in this regard have already been given by the Hon'ble High Court of Delhi in William Parashar's case (supra), upholding the decision of this Tribunal rendered in O.A. No.1366/2016, it would be apt in law to follow the dictum. The representations of the applicants have also not been decided by the respondents.
24. In this conspectus, we deem it appropriate to dispose of the O.A. with a direction to the respondents to have a relook in the matter and decide the claim of the applicants, in terms of the directions of the Hon'ble High Court of Delhi, referred to above, by passing a reasoned and speaking order within a period of three months from the date of receipt of a copy of this order. 20 O.A. No.18/2020 Item No.12
25. Pending M.A., if any, shall stand disposed of. No costs.
( Anand S Khati ) ( Harvinder Kaur Oberoi )
Member (A) Member (J)
/sunil/