Central Administrative Tribunal - Delhi
A.K.Awasthi vs Govt. Of Nct Of Delhi & Anr. Through on 7 September, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No. 2181/2010
MA 1749/2010
MA 2172/2010
New Delhi this the 7th day of September, 2010
Honble Mr. Justice V.K. Bali, Chairman
Honble Mr. L.K. Joshi, Vice Chairman (A)
1. A.K.Awasthi,
R/o F-24, House No. 135,
Sector-7, Rohini, Delhi.
2. S.C. Vashisht,
S/o Sh.S.N. Sharma,
R/o GD-120, Pitampura, Delhi.
3. Bir Singh
S/o Sh. Phool Singh,
R/o H-241, Ashok Vihar, Phase-1,
New Delhi.
4. R.P. Singh,
S/o Shri Kalu Ram,
R/o 56-D, GH-10, Sunder Apartments,
Paschim Vihar, New Delhi.
5. A.K.Arora,
S/o Shri Rajinder Pal,
R/o 2518, Gali No. 11,
Bihari Colony, Shahadara, Delhi.
6. A.K. Aggarwal,
S/o Sh. N.M.Aggarwal,
R/o C-2, 186, Ist Floor, Janakpuri,
New Delhi-110058
7. Ashok Kumar Choudhary,
S/o Sh. Sube Singh Choudhary,
R/o 2/2, Jaidev Park, New Delhi.
8. Jagdish Arora,
S/o Late Shri G.R. Arora,
R/o BE-86, Janakpuri,
New Delhi-58 Applicants
(By Advocate Shri M.K.Bhardwaj )
VERSUS
Govt. of NCT of Delhi & Anr. through:
1. The Chief Secretary,
Delhi Secretariat, Players Building, ITO,
New Delhi.
2. Chief Executive Officer,
Delhi Jal Board, Varunalay, Phase-II,
New Delhi.
3. Member (Administration),
Delhi Jal Board, Varunalya, Phase-II,
Jhandewala, Karol Bagh, New Delhi.
4. Uttam Kumar S/o Lal Chand,
Serving as EE (E&M),
Bhagirathi Water Treatment Plant,
Delhi Jal Board, Gokulpuri, Delhi.
5. Sh. V.P. Gunjiyal (ST),
S/o Late Sh. Padam Singh,
Serving as EE (E&M, EO to CE (WW)-I,
Delhi Jal Board, Chandrawal Water Works-I,
Civil Lines, Delhi.
6. Sh. D.K. Vaishya,
S/o Sh. Devi Prasad,
Serving as EE (E&M) W&S (South-West),
Delhi Jal Board, D-Block,
Janakpuri, Delhi. Respondents
(By Advocates Shri Ankit Jain and Shri Jitendra Kumar for DJB,
Shri Ram Prakash Gupta for R-5 and Shri Sant Lal for R-4)
O R D E R
Mr. L.K. Joshi, Vice Chairman (A):
Sh. A K Awasthi and others, the Applicants herein are assailing the seniority list of the Executive Engineers issued on 9.07.2010 on the ground that SC /ST, who have migrated from other States and are not in the list of SC/ST of Government of NCT of Delhi have been given accelerated promotions and placed above them. The placement of the fourth, fifth and sixth Respondents above the Applicants has been challenged.
2. The facts of the case, which are necessary for adjudication of this OA, have been narrated hereafter.
3. The Applicants are Executive Engineers (E&M) with the Delhi Jal Board, the second and the third Respondents herein. The Applicants had been appointed as Assistant Engineers (E&M) between the years 1983 to 1989. A copy of the final seniority list of Assistant Engineers dated 01.01.2008 has been placed at Annex-A-2. While the fourth Respondent is junior to five Applicants, the fifth and the sixth Respondents are juniors to all the Applicants. A provisional seniority list of the Executive Engineers was issued on 27.03.2009. The Respondents were given seniority over the Applicants by giving them the benefit of SC and ST categories. The Applicants made a representation against the seniority list dated 27.03.2009. The Applicants brought to the notice of the Respondents the legal position that the SC and the ST belonging to other States, cannot be treated as SC and ST in Delhi unless they are so notified by the Government of NCT of Delhi. It was pointed out that the Respondents were not notified in the above categories in the Government of NCT of Delhi. The judgement of the Honourable Supreme Court in Subhash Chandra and another Vs. Delhi Subordinate Services Selection Board and others, (2009) 15 SCC 458 was also cited in support of their arguments. The representations have been annexed at Annex-A-3. Since the representations did not bear any fruit, the Applicants gave further representations on 22nd of April 2010 and 11th May 2010. This also did not have any effect. The Applicants made yet another representation on 18.05.2010 in which the Applicants reiterated their arguments that the Respondents could not have been placed above them because they could not have been treated as belonging to SC or ST categories because they were migrant SC and ST. The Applicants approached this Tribunal through OA number 1981 of 2010. The contention of the Applicants was that after considering the representations of the Applicants against the seniority list of 27.03.2009, the Respondents had reissued the same list without any change on 18.05.2010. This was also treated as a provisional list and objections were invited. Their grievance was that the Respondents were not deciding the representations. The following directions were given in the aforesaid OA:
4. In view of the above, let the respondents, who have called for the objections with reference to the provisional seniority list dated 18.05.2010, take into account the objections at Annexure A-5 and also treat the grounds taken in this OA as constituting objection as well, while finalizing the seniority list. The applicants may be communicated a copy of the finalized seniority list within a reasonable period of time. Liberty is granted to the applicants to seek redressal, should they be aggrieved upon operation of the provisional seniority list dated 16.5.10 before consideration of their objections thereon. Let the respondents also inform the decision taken on the objections to the applicants within a period of two months. However, the Respondents issued the final seniority list on 9.07.2010. In the Office Memorandum dated 9.07.2010 the following observations, inter alia, were made:
1. That UPSC held/conducted the DPC on 20-02-09 and on this date the reservation benefits were available to SC/ST candidates. The judgment by Apex Court was pronounced on 04-08-09 and therefore UPSC has given the reservation benefits to SC/ST candidates, as per reservation rules, prevailing as on 20.02.09.
2. That the necessary UPSC advice was taken into the matter and in terms of DOP&T O.M. No. 22011/4/91-Estt(A) dated 14-09-92 & No. 36012/2/96-Estt (Res) dated 02.07.97, the final seniority list is being issued with the required correction & consequential amendments, with the approval of Competent Authority; and
3. That the said final seniority list will be further the subject to review after receipt of advice of DOPT & the final decision in pursuance of Supreme Courts order, if any.
4. The learned counsel for the Applicants would contend that the above final seniority list has been issued without considering the representations of the Applicants. It was argued that the issues raised by the Applicants had not been considered at all and the order regarding the final seniority list had been issued on irrelevant grounds. It is vehemently contended that the observation in the impugned order that on 20.02.2009 the benefit of reservation was available to the Respondents is totally without any basis. The Honourable Supreme Court had held in its judgement in Subhash Chandra (supra) that migrant SC and ST could not be given the benefit of these categories if they were not recorded as SC and ST categories in the State in which the selection for the posts was being made. It is contended that the argument of the Respondents in the counter affidavit that the application of the aforesaid judgement of the Supreme Court is prospective is completely misplaced. Advertence has been made to the judgement of this Tribunal in OA number 677 of 2010, Hariom Chauhan Vs. Government of NCT of Delhi and Others decided on 7.07.2010, in which in an identical matter the issue relating to the prospective operation of the aforesaid judgement was considered and it was held that the judgement would apply retrospectively and its prospective application was in peculiar facts and circumstances mentioned in the judgement. In this context our attention has been drawn specifically to the following paragraph in the judgement in OA number 677 of 2010:
Subsequently, however, the GNCTD had approached the Apex Court for a clarification/direction as to whether the aforesaid decision would also be applicable in case of migrant ST students who had already been selected for academic session 2009-10 which had commenced w.e.f. 3.8.09, before the date of the judgment in Subhash Chandras case. Considering the facts of the case at length, the Apex Court had clarified about such students not being affected by the decision. The following relevant extracts from their order dated 13.11.2009 are reproduced below:-
Having considered the submissions made on behalf of the parties, it should first be clarified that we are only considered whether the judgment and order passed in the Civil Appeal intended to cover even those Scheduled Tribes candidates who had not only participated in the selection process but had also been selected for counseling prior to the delivery of the said judgment. We are of the view that this does not entail invocation of our power under Article 142 of the Constitution and, accordingly, Mr. Goburdhans submission has no merit.
We clarify that the judgment delivered in C.A. No.5092/2009 was intended to take effect prospectively and it was not the intention of the Court that the students who had already applied and had been selected for counseling should also be covered by the same. Our attention has also been drawn to paragraphs 5.3 and 6 of the aforesaid order, which are extracted below:
5.3. In the WPC 1378/09 and CM Nos.1554-67, Naraish Kumar & Ors. Vs. GNCTD & Anr., decided recently by the Delhi High Court vide its order dated 11.12.2009, the similar issue again came for consideration of the Honble High Court. The petitioners in this case were challenging their non-selection as Asstt. Teacher Primary under the GNCTD in a selection process initiated in 2008 under the SC reserved category. The respondents case was that since these petitioners were migrant SC from other States, as per the decision of the Apex Court in Subhash Chandras case, they were not eligible for appointment under the reserved category in the GNCTD. The plea of the petitioners was that such a stipulation of issuance of caste certificate by the competent authorities under the GNCT alone had been emphasized in the advertisement notification only in respect of OBC candidates and hence could not be an impediment in their case. Rejecting the claim of the petitioners, the Honble High Court did not find anything arbitrary in the respondents action and observed the following:
The Supreme Court has in the aforesaid judgment in Subhash Chandras case relying upon an earlier Constitution Bench decision in Marri Chandra Shekhar Rao Vs. Dean, Seth G.S. Medical College and Ors., JT1990(2) SC 285, held that a person who has been held to be a member of the Scheduled Caste in the State cannot be treated as such in another State and it has also been held that that is constitutionally impermissible.
Since in the present case, the respondents are following the decision of the Supreme Court in declining the appointments to the petitioners on the ground that they possess caste certificates issued by other States, it cannot be said that they are acting arbitrarily giving cause to the petitioners to invoke the writ jurisdiction of this Court for enforcement of their rights, which really do not exist.
6. It is settled that the law propounded by the Apex Court would have a retrospective effect unless directed otherwise. Regarding the contention of the learned counsel for the applicant regarding the decision in Subhash Chandras case being prospective in nature; as said to be borne out by the directions in the clarification petition; we do not find the same as tenable. As the above recounting of facts would show the prospectively in this case was in a very specific context and hence the direction to make the order prospective was in persona, rather than in rem. We also find a merit in the contentions of the respondents counsel regarding the law on the subject having been initially laid down by the five-Member Constitution Bench of the Apex Court in Marri Chandra Shekhar Raos case. This is further borne out by the decision of the High Court in Naraish Kumar & Ors. as cited before us. It is contended that the Honourable Supreme Court had earlier considered the same issue in Marri Chandrashekhar Rao Vs. Seth G S Medical College, (1990) 3 SCC 130. In paragraphs 38, 39 and 40 of Subhash Chandra (supra) the Honourable Supreme Court observed thus:
38. With the aforementioned backdrop in mind, we may notice a few decisions of this Court. A Constitution Bench of this Court in Marri Chandra Shekhar Rao had the occasion to consider the question as to whether a member of Gouda community which is recognized as `Scheduled Tribe' in the Constitution (Scheduled Tribes) Order, 1950 would be entitled to admission in a medical institution situated in the State of Maharashtra.
39. This Court noticed the fact that the father of the petitioner in Marri Chandra case was an employee in Fertilizer Corporation of India, a public sector undertaking, in the Scheduled Tribes quota and thereafter in Rashtriya Chemicals and Fertilizers Limited, a Government of India undertaking under the quota reserved for Scheduled Tribes whereafter he was stationed at Bombay. The petitioner therein came to Bombay at the age of nine years. He completed his studies in Bombay; he submitted an application for his admission in the medical institutions run by Bombay Municipal Corporation which was denied in view of Circular dated 22-2-1985 issued by the Government of India. The Circular dated 22-2-1985 issued by the Government of India, inter alia, read as under :
"It is also clarified that a Scheduled Caste/Tribe person who has migrated from the State of origin to some other State for the purpose of seeking education, employment etc. will be deemed to be a Scheduled Caste/Tribe of the State of his origin and will be entitled to derive benefits from the State of origin and not from the State to which he has migrated."
40. The question which was posed in Marri Chandra case was the effect of specification by the President of the Scheduled Castes or Scheduled Tribes, as the case may be, for the State or Union territory or part of the State. Noticing that the specification was "for the purposes of this Constitution", it was found to be necessary to determine what the expression in relation to that State seeks to convey. This Court noticed not only the various provisions of the Constitution but also the earlier decisions governing the field as well as the views of Dr. B.R. Ambedkar in the Constituent Assembly, to hold:
"22. In that view of the matter, we are of the opinion that the petitioner is not entitled to be admitted to the medical college on the basis of Scheduled Tribe certificate in Maharashtra. In the view we have taken, the question of petitioner's right to be admitted as being domicile does not fall for consideration."
It is also noteworthy that in paragraph 37 of the aforementioned judgement it was observed thus:
37. No Scheduled Tribe has been identified in the Union Territory. The Presidential Order in regard to the Scheduled Castes speaks of the residents of Delhi alone. Some of the Castes identified as Scheduled Castes in some other States also find place in the Presidential Order issued for Delhi. What would be the effect is the question. The learned counsel for the Applicants would contend that in view of the above it would be wholly erroneous view of the Respondents that the judgement in Subhash Chandra (supra) would have prospective application. It is also contended that there is no ST category identified in the Government of NCT of Delhi.
5. It is also argued that the Respondents have taken recourse to subterfuge by mentioning the following in the impugned order:
3. That the said final seniority list will be further the subject to review after receipt of advice of DOPT & the final decision in pursuance of Supreme Courts order, if any. It is contended that it is a clever ploy to prevent the Applicant from approaching the Tribunal by making it out that the final order has not been passed, as indeed has been stated by the Respondents in their counter affidavit.
6. It has also been argued that under Article 341 of the Constitution the SC category is for a particular State or Union territory. The aforesaid Article has been extracted below:
341. Scheduled Castes.- (1) The President [may with respect to any State [for Union territory], and where it is a State, after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State [or Union territory, as the case may be]. It is further contended that ST category has not been identified in the Government of NCT of Delhi. In view of this, it is argued that the Respondents numbers 4 to 6, who are migrant SC and ST cannot be treated as SC and ST by the Government of NCT of Delhi.
7. The Respondents have opposed the cause of the Applicants. The second, third and the fifth Respondents have filed counter affidavits. The Respondent DJB has raised the first objection regarding maintainability of the OA before this Tribunal in paragraph 4 of the counter affidavit, which reads thus:
4. It is most respectfully submitted that the present petition is not maintainable as the relief which is sought in present petition, is against the action/inaction of the GNCTD and/ or the DOPT (Department of Personnel and Training), Government of India in adding/ amending the rules pertaining the promotions/ reservation. The reliefs sought in the present petition is outside the scope and jurisdiction of the Administrative Tribunals Act, as it is in essence would tantamount to claiming a relief in nature of a mandamus sought against the DOPT/ GNCTD, which cannot be prayed for before this Honble Central Administrative Tribunal. This argument is baseless in as much as the challenge in the OA is to the seniority list of Executive Engineers on the ground that fourth, fifth and sixth Respondents have been shown above the Applicants on the basis of belonging to Scheduled Caste and Scheduled Tribe categories. The aforesaid Respondents would not come in the Scheduled Caste and Scheduled Tribe categories in the light of the law laid down by the Honourable Supreme Court in Subhash Chandra (supra) and Marri Chandrashekhar Rao (supra). It is further contended that the existing Statute provides for consideration of the fourth to sixth Respondents as belonging to Scheduled Caste and Scheduled Tribe categories and the judgement of the Honourable Supreme Court would be applicable to them as and when incorporated in the Statute by the appropriate Government. It has been stated that:
The answering respondents have clearly taken a stand that it is acting as per the prevailing statute and the judgement of the Honble Supreme Court as and when incorporated in the Statute by the appropriate government GNCTD and /or the DOPT/ Government of India. The same would then be applicable to the respondent organization. The answering respondents have also clearly stated that even in the interregnum, whatever action is being taken as an administrative action is being done subject to the rule position/ applicable law, which may likely/ shortly be passed in this regard by GNCTD/DOPT/ Government of India. This argument is also completely fallacious. Articles 15 (4), 15 (5), 16 (3), 16 (4) and 16 (4) (a) of the Constitution of India provide for reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes. However, the issue in the instant OA is regarding who would be considered to be belonging to Scheduled Caste and Scheduled Tribe categories in a particular State. The castes, races or tribes etc., which could be deemed to be Scheduled Caste is decided as per Article 341 of the Constitution, which has been quoted above. This is specified by public notification in relation to a particular State or Union Territory. The Honourable Supreme Court has laid down the law that a category of Scheduled Caste or Scheduled Tribe specified in a particular State cannot be counted as such in another State or Union Territory unless it is so notified by a public notification in the other State or Union Territory, as the case may be. It is also argued that the Respondent-DJB cannot alter the terms and conditions of service to the disadvantage of an officer or employee under the rules. However, this argument is also completely irrelevant as there is no question of altering the terms and conditions of service of any employee involved in this case. It is further contended that the impugned seniority list shall be reviewed when advice of DOP&T, which has been sought by the Respondent-DJB is available regarding applicability of the judgment of the Honourable Supreme Court. All we can say about this argument is that there is no need for seeking advice of the DOP&T or any other agency in so far as the applicability of the judgment of the Honourable Supreme Court is concerned. It is trite that the law declared by the Honourable Supreme Court is binding on all. Another contention, which has been raised in the counter affidavit, is that the OA is barred by res judicata because the Applicant had already approached this Tribunal in OA 1981/2010 for the same cause of action. This argument is completely specious because challenge in the present OA is to the order of the Respondent DJB finalizing the seniority list of Executive Engineers, which is in pursuance of the directions given in the aforementioned OA. It is a fresh cause of action and, therefore, the Applicants are justified in challenging the order in this OA.
8. The 5th Respondent, who is a non official Respondent, has challenged the maintainability of the OA on the ground that it is not maintainable against first to third Respondents, who are official Respondents, because as per Section 52 of the Government of National Capital Territory of Delhi Act, 1991, the Government of Delhi should have been sued through Government of India. Section 52 of the aforesaid Act reads thus:
52. Contracts and suits For the removal of doubts it is hereby declared that
(a) all contracts in connection with the administration of the Capital or contracts made in the exercise of the executive power of the Union; and
(b) all suits and proceedings in connection with the administration of the Capital shall be instituted by or against the Government of India. We reject this argument first on the ground that the non-official Respondents could not have taken this objection when the official Respondent- DJB or Government of Delhi have not taken any objection in this regard. Government of NCT of Delhi has not even filed counter affidavit in the OA. Second, the DJB has been brought under the jurisdiction of the Central Administrative Tribunal under Section 14(2) of the Administrative Tribunals Act, 1985 by Notification No. SO 2824(E) dated 1.12.2008. Therefore, this Tribunal has jurisdiction to hear and decide this OA. It has also been argued that the Honourable Supreme Court of India did not consider the issue with reference to the rule making powers of Delhi Municipal Corporation, of which the DJB was a part. It is contended that in this view of the mater, the issue as involved in the present case never came up before the Honourable Supreme Court and there was thus no question of deciding such issues. The argument is entirely tangential and has no substance. It is to be reiterated that the issue is regarding whether the fourth to sixth Respondents would come under the category of Scheduled Caste or Scheduled Tribe in the NCT of Delhi. It is well settled that no Scheduled Tribe category has been identified in the Government of NCT of Delhi. Therefore, the fifth Respondent, namely, Shri V.P. Gunjiyal could not be considered as Scheduled Tribe for the purposes of accelerated promotion above the Applicants. The fourth and sixth Respondents have not filed any counter affidavit to challenge the contention of the Applicants that they do not belong to Scheduled Caste category in Delhi. Indeed, the fifth Respondent has also not contested that he does not belong to Scheduled Tribe category in Government of NCT of Delhi.
10. On the basis of above, we are of the considered opinion that the fourth, fifth and sixth Respondents, who were junior to the Applicants in the seniority list of Assistant Engineer (E&M) could not be given advantage of accelerated promotion, available only to Scheduled Caste and Scheduled Tribe categories and could not be placed above the Applicants in the seniority list of Executive Engineers. The OA succeeds and the seniority list of Executive Engineers (E&M) issued vide order dated 9.07.2010 is quashed and set aside with the direction that this should not be acted upon for any further promotion to higher posts and that the aforesaid seniority list should be recast keeping our observations in mind. The new seniority list should be issued within three months from the date of receipt of a certified copy of this order. No costs.
( L.K. Joshi ) ( V.K. Bali ) Vice Chairman (A) Chairman /dkm/