Central Administrative Tribunal - Delhi
M.S. Narwal S/O Sh. M.R. Narwal vs Govt. Of Nct Of Delhi Through on 13 September, 2013
Central Administrative Tribunal
Principal Bench
O.A. No.1467/2012
Order reserved on: 08.08.2013
Order pronounced on: 13-.09.2013
Honble Mr. V. Ajay Kumar, Member (J)
Honble Mr. V.N. Gaur, Member (A)
M.S. Narwal S/o Sh. M.R. Narwal,
R/o H.No. 117-A, Block GH-10,
Sunder Apartments, Paschim Vihar,
New Delhi -110 087. -Applicant
(By Advocate: Dr. K.S. Chauhan with Shri Ajit Kumar Ekka)
Versus
1. Govt. of NCT of Delhi through
Chief Secretary,
New Secretariat, Players Building,
IP Estate, New Delhi-110 002.
2. Govt. of NCT of Delhi through
Secretary,
Department of Irrigation and Flood Control,
5/9, Under Hill Road,
Delhi -110 054.
3. Union Public Service Commission,
Through its Secretary,
Dholpur House, Shahjahan Road,
New Delhi -110 069.
-Respondents
(By Advocate: Mrs.Sumedha Sharma for Govt. of NCT of Delhi-R-1&R-2 and Shri Rajender Nischal for UPSC-R-3)
O R D E R
Mr. V.N. Gaur, Member (A):
In brief, the undisputed facts of the case are that the applicant was promoted to the post of Executive Engineer in the Department of Irrigation and Flood Control, Government of NCT of Delhi with effect from 14.09.2011 after a DPC meeting held in UPSC on 04.08.2011 for a vacancy pertaining to the year 2007-2008. The applicant has made a prayer for directing the respondents to promote him on notional basis with effect from 2007-2008, the year when the vacancy arose. The applicant has been demanding promotion to the next level for quite some time. His name was considered by the UPSC for the vacancy year 2006-2007 but rejected on the ground that he had not completed the required number of years in the existing grade for being considered for the post of Executive Engineer. As the next DPC was getting delayed, the applicant approached the National Commission for Scheduled Castes where in a meeting held on 24.11.2009 the Respondent no.2 informed that as the Department had already sent the proposal for convening DPC for the year 2007-2008 vide letter dated 21.10.2009 the matter will be resolved positively. Seeing no progress in the matter the applicant along with another approached this Tribunal through OA-3361/2010 wherein the following order was passed on 22.07.2011:
4. In the context of the facts and circumstances of the case as mentioned above, we hereby direct respondent No.1 to complete all the formalities as mentioned in UPSCs letters dated 27.01.2011 and 28.02.2011 within a period of three weeks from today. Once all the formalities are completed by respondent No.1, respondent No.2-UPSC shall constitute a DPC for the year 2007-2008 to consider the case of the applicant for promotion on the post of Executive Engineer, within six weeks thereafter. The respondents held the DPC on 04.08.2011 and issued order for his promotion with immediate effect on 14.09.2011. The applicant once again filed a Contempt Petition No.84/2012 which was dismissed on 06.03.2012 with liberty to the applicant to agitate the issue of retrospective seniority through a fresh O.A.
2. The learned counsel of the applicant in his submission pointed out that the respondents had delayed the DPC without any valid reason for nearly 04 years and when they issued the promotion order, they denied the promotion with effect from the vacancy year. He further stated that the principle of retrospective seniority in such cases has already been settled through the verdict of this Tribunal in OA No.2140/2006 H.S. Bhardwaj v. Govt. of NCT of Delhi, OA No.2757/2010 O.P. Srivastava & Ors. V. Govt. of NCT of Delhi and O.A. No.1563/2011-P.K. Ugata & Ors. v. Union of India. He further informed that the respondents have already given retrospective seniority to the applicants in OA-2140/2006 and OA-2757/2010 in which the applicants belong to the same department as the applicant in this OA. Similar antedating of seniority has been ordered in respect of Shri Vijay Kumar Jain and Shri Narender Kumar Sharma both Executive Engineers in the same department following the order of this Tribunal in OA No.2584/2010. The learned counsel for the applicant submits that not considering the request of the applicant in the same manner as other similarly placed persons amounts to discrimination.
3. The sole ground taken by the learned counsel for the respondents No.1 and 2 for denying the retrospective seniority to the applicant with effect from the vacancy year 2007-2008 is the following observation in the forwarding letter of the UPSC dated 05.08.2011:
3. Attention of Ministry/Department is also invited to the instructions contained in para 6.4.4 of the DOP&T O.M. No.22011/5/86-Estt.(D) dated 10th April, 1989, which provide that promotions will have only prospective effect even in cases where the vacancies relate to earlier year(s). Para 17.11 of the said O.M. further provides the date from which the promotion should take effect. These instructions may be kept in view by the Ministry/Department while implementing the recommendations of the DPC, unless otherwise prescribed in the statutory RRs or directed by the Court of Law or in case of Review DPC.
4. In the counter-reply in para-4.11 it has been stated that the representation dated 26.09.2011 regarding ante-dating of seniority was examined and considered by the competent authority and the same was rejected vide letter dated 23.11.2011 on the ground of DoP&T OM dated 10.04.1989, as pointed out by the UPSC. The UPSC, respondent No.3 have, in their reply, stated as follows:
8.2 That with regard to the issue of giving retrospective promotions to some officers by the Department, the same might have been given by the Department on the court directions or on some specific situations, for which the reply submitted by the Department in this regard may kindly be referred to.
5. We have gone through the submissions made by both the sides. The applicant was working as Executive Engineer on current charge basis with effect from 09.06.2005 till the date of regular promotion 14.09.2011. He was considered for promotion for the vacancy year 2007-2008 for degree holders in DPC held on 04.08.2011. The respondents have not even attempted to give reason for the delay of nearly 04 years in holding the DPC. On the other hand, it will not be without substance to conclude that the applicants active pursuit to expedite the process by first approaching the National Commission for SC in 2009 and later this Tribunal in 2010 through OA-3361/2010, was largely responsible for getting the DPC organized on 04.08.2011. In such circumstances the candidate can justifiably claim that he not be penalized for the failure on the part of the department in not holding DPC in time in contravention of the DoPT instructions contained in OMs dated 08.09.1998 and without any justifiable reason (P.N. Premachandran v. State of Kerala; (2004) 1 SCC 245).
6. Here, we would also like to comment on the plea taken by the respondents regarding the advice of the UPSC to keep in view the DoP&T OM of 10.04.1989 which provides that all promotions will have only prospective effect. This instruction of DoP&T is to be seen alongwith various other instructions/ guidelines of the same department where the importance of timely holding of DPCs has been emphasized. In this context the DOP&T OM dated 8.9.1998 is specially relevant since it lays down a calendar for convening DPCs. The purpose of this calendar is to ensure that the panel for the anticipated vacancies for a year should be ready even before the start of the vacancy year. If DPC is held according to this model calendar, an occasion for the officers to claim retrospective seniority may not arise.
7. Given this background we find that this case is squarely covered by this Tribunals order in OA No.2140/2006 which was a precursor to the orders by this Tribunal in many cases subsequently particularly OA No.2757/2010 and OA No.2584/2010 which pertain to similarly situated persons in the same department. The applicant in the present OA cannot now be discriminated against by not applying the same principle.
8. In view of the above, it is ordered that seniority of the applicant will be fixed on notional basis with effect from 2007-2008, the year when the vacancy arose, without back wages but the period would count for increments, promotion and pension. This exercise will be completed within a period of 03 months from the date of receipt of a certified copy of this order. The OA is allowed. No costs.
(V.N. Gaur) (V. Ajay Kumar) Member (A) Member (J) San.