Central Administrative Tribunal - Delhi
Shri Ashok Kumar vs Union Of India Through on 10 May, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.1164/2011 Orders reserved on: 07.05.2012. Orders Pronounced on:10.05.2012. Honble Mr. M.L. Chauhan, Member (J) Honble Mr. Shailendra Pandey, Member (A) 1. Shri Ashok Kumar, S/o Late Shri Ramkishan R/o 132, Janhitkari Apartment, Sector-6, Vasundhra, Ghaziabad, Uttar Pradesh. 2. Shri Abraham, O.V. S/o Late Shri O.T. Verghese, R/o Flat No.1, Type IV, Auto Workshop, Mandir Marg, New Delhi-110001 3. Shri R.P.Tripathi, S/o Late Shri S.B. Tripathi, R/o Flat No. 2, XY Block, Sarojini Nagar,New Delhi. Applicants (By Advocate Shri S.S. Nehra) VERSUS 1. Union of India through Secretary, Ministry of Home Affairs, South Block, New Delhi. 2. New Delhi Municipal Council through its Chairman, Palika Kendra, Sansad Marg, New Delhi110001. 3. Shri Virender Kumar Gupta 4. Shri Rakesh Kumar 5. Shri Vinod Kumar 6. Shri Sanjeev Kumar Singh 7. Shri Surendra Kumar 8. Shri Khalid Iqbal 9. Shri Mithlesh Kumar Poddar 10. Shri Dinesh Respondents (Respondents No. 3 to 10 to be served through Respondent No.2 ) (Ms. Kanika Agnihotri with Mr. Vaibhav Agnihotri, counsel for respondent No.2, Shri S.M. Arif with Shri J.N. Prasad, counsel for R-3-10, none for R-1). O R D E R Mr. M.L. Chauhan, Member (J):
This is the second round of litigation. Earlier the applicants had filed OA-2441/2009 before this Tribunal, whereby the applicants had made a grievance regarding ad hoc promotions made vide the impugned order dated 240.07.2009 against direct recruitment quota. The said OA along with OA No.2098/2009 was disposed of by this Tribunal on 2nd July, 2010 by a common judgment. At this stage, it will be useful to quote paras 5&6 of the said judgment, which thus read:
5. At this stage in the arguments, the learned counsel for the Respondent-NDMC has made the following statement at the Bar:
(a) the promotion made in the impugned order dated 24.07.2009 are against the direct recruitment quota;
(b) these promotions have been made in the exigency of the Commonwealth Games to be hosted in Delhi in October 2010; and
(c) ad hoc promotees would not be regularized. She has further stated that after the Games are over, the matter regarding promotion would be taken up as per Rules.
The statement stands recorded.
6. In view of the above statement made by the learned counsel for Respondent-NDMC, we are of the considered opinion that it may not be necessary for us at this stage to further consider the case. We are, therefore, at this stage disposing of the case on the basis of the statement made by the learned counsel for the respondent-NDMC, leaving all the questions of law and facts open, with liberty to Applicants to raise these questions, if need arises in fresh proceedings. This is especially important, not to disturb the promotions, in view of the preparation for the Commonwealth Games, looming large on the horizon. OAs are disposed of. There will be no order as to costs.
2. Now the applicants have filed this OA, whereby the applicants have made grievance regarding the same order dated 24.07.2009, whereby the promotions were granted by respondent No.2 to various persons, including the promotions to respondents No.3-11 to the posts of Assistant Engineer (Electrical) (AE (E), for short) on the ground that they were juniors to them in terms of the seniority list circulated by the respondents and against the instructions issued by the Government of India. The challenge has also been made on the ground that these vacancies have arisen prior to 12.05.2008, as such these posts should have been filled up in accordance with the rules, which were in vogue prior to 12.05.2008. At this stage, it will be useful to quote the relief clause, which thus reads:
a) Quash the Office Order dated 24.7.2009 to the extent that the persons junior to the applicants have been promoted to the post of Assistant Engineer (Elecl.), as being illegal;
b) direct the Respondents to convene the DPC meeting and consider the cases of the applicants for promotion to the post of Assistant Engineer (Elecl.) against the vacancies accrued prior to 12.5.2008 under the rules in vogue on the date when the vacancies have arisen, will all consequential benefits;
c) Without prejudice and in the alternative direct the Respondents to promote the applicants to the post of AE (Elecl.) on ad-hoc basis on the basis of the seniority list circulated in the years 1993 and 2006 in accordance with the OM dated 30.3.1988 of the DOP&T with all the consequential benefits;
d) declare that since the applicants have acquired degree, the applicants as such are eligible for being considered and promoted to the next higher post of Assistant Engineer (Elecl.) as Graduate Engineer in terms of seniority list prior to the Respondents 3 to 10 and date of acquiring degree is not material;
e) pass such further order(s) and/or give direction(s) as deemed fit and proper in the facts and circumstances of the case.
3. Thus, as can be seen from the relief clause, as reproduced above, and in the light of the decision rendered by this Tribunal in OA-2441/2009, relevant portion of which has been extracted in the earlier part of the order, and also the contentions raised by the applicants in the earlier OA, which judgment has been placed on record as Annexure A-12, it is evident that applicants are seeking the same reliefs, which they sought in the earlier OA and also the challenge made to the impugned order is on the same grounds, which they had canvassed before this Tribunal in the earlier OA.
4. When the learned counsel of the applicants was confronted as to how second OA for the same relief is maintainable, learned counsel for the applicants stated that this Tribunal in the earlier OA of the applicants (vi. OA No.2441/2009) had left all the questions of law and fact open. However, instead of answering further queries in this regard, he sought adjournment of the case. Since we had heard parties at length and also in view of the fact that the controversy involved in this case has also been settled by the Delhi High Court in LPA No.280/1997, decided on 19.10.2011, we have reserved the order.
5. According to us, the present OA is is not maintainable. From the judgment rendered by this Tribunal in earlier OA, relevant portion of which has been extracted in the earlier part of the judgment, it is evident that this Tribunal did not quash the impugned order dated 24.07.2009, as such, according to us, this OA for challenging the validity of the order dated 24.07.2009, is not permissible. Since the Tribunal had disposed of the earlier OA on the basis of an undertaking that after the Games are over the matter regarding promotion would be taken up as per Rules, there were two courses of action open to the applicants, i.e., either to challenge the judgment of this Tribunal before the higher forum or to file a review application in case the undertaking given by the respondents on the basis of which earlier OA was disposed of, was not honored and thereby praying for recalling the order and hearing the matter on merit. Thus, we are of the view that the present OA is required to be rejected on this ground.
6. That apart, from the portion as quoted above, it is evident that the ad hoc promotions made vide order dated 24.07.2009 were against the direct recruitment quota. It may be relevant to state here that as per the Recruitment and Promotion Rules for the post of A.E. (E) prior to the amendment of the Rules for the said post, which were published in May, 2008, recruitment to the post of A.E. (E) was to be made from two sources, 50% by direct recruitment and 50% by departmental quota. Out of 50% from departmental quota, 70% of the posts were required to be filled in from amongst Superintendent possessing degree/diploma. However, in terms of the amendment carried out in the year 2008, 70% of the quota meant for departmental candidates (Junior Engineers) belonging to the cadre of degree and diploma holders was further bifurcated and the same was meant to be filled in 50% from the departmental diploma holders of JE having 8 years regular service in the grade and 20% from degree holders JE with 5 years regular service in the grade. Since prior to the amendment carried out to the recruitment rules for the post of AE (E) 70% promotional quota was available to both degree and diploma holders, the promotion was being made in terms of the common seniority list. However, after amendment of the recruitment rules there were separate quota for degree and diploma holders JEs and the respondents have issued two different seniority lists of the JE (E), one based upon the seniority list of J.E. (E) based upon their entry in service (Annexure R-3) and seniority list of degree holders JE on the basis of the acquiring degree (Annexure R-4). Since in terms of the 2008 rules separate promotion quota has been earmarked for diploma and degree holders JEs and in order to give effect to the amended recruitment rules and the fact that the posts against which promotion has been made does not fall in the seniority quota/promotion quota but the vacancies against which promotion has been made on ad hoc basis vide the impugned order has been made against the vacancies in the direct recruitment quota, we see no infirmity in the action of the respondents whereby they have resorted to give promotion against the said vacancies in terms of the seniority list (Annexure R-4), which seniority list has been prepared on the basis of acquiring degree by the JE and not based upon the length of service in the cadre. Further, as can be seen from the stand taken by the official respondents the issue regarding preparing of seniority of degree holders is being maintained on the basis of their date of acquiring degree. For that purpose respondents have placed reliance upon order dated 13.01.2005 of the Division Bench of the Delhi High Court, which order is based upon the order passed by the Apex Court on 01.11.2004 in CA No.2219-2222/2002 wherein it has been held that the experience gained by diploma holders prior to their obtaining a degree cannot be counted. Their seniority must necessarily start from the date the degree is obtained. Respondents have annexed copy of the order of the Delhi High Court with the reply as Annexure R-I. At this stage, it will be useful to quote order dated 13,01.2005, passed in LPA No.280/1997 by the High Court of Delhi (Annexure R-I), which thus reads:
Our attention has been brought to the orders passed by the Full Bench in S.P. Dubey Vs. MCD. That judgment is relied upon by the respondent. Mr. Sethi, learned counsel appearing for the appellant has contended that that judgment was stayed by the Supreme Court on 15.32002. Thereafter in CA Nos.2219-2222/2002 on 6.5.2002 Supreme Court further modified the orders passed earlier in the SLP on the following effect:
Pending the disposal of the appeals, the interim order passed on 15th March 2002 shall continue to operate. However, it is clarified that the order giving effect to 1987 seniority list for the purpose of promotion shall not in any be affected by our interim order.
All the promotions made will be subject to the result of the appeals.
Liberty to mention is granted.
On the basis of the aforesaid order, it was contended that the order giving effect to 1987 seniority list for the purpose of promotion has not been effected in any way by Sh. Kaushik. On the other hand, Mr. Sethi has contended that this order was further modified by the Supreme Court on 1.11.2004 to the following effect:
We have heard Mr. G.D. Gupta, learned senior counsel appearing on behalf of the Applicant at great length. As the impugned order has been stayed it necessarily means that, for the present, the experience gained by the diploma holder prior to their obtaining a degree cannot be counted. Their seniority must necessarily start from the date that the degree is obtained. By our order dated 6th May, 2002 we have clarified that the order giving effect to 1987 seniority list would not be affected. The order giving affect to seniority list of 1987 clarifies that only those persons who are eligible can be promoted. If therefore, in the 1987 seniority list a person is not eligible then he obviously cannot be promoted till he becomes eligible. (Emphasis supplied) Accordingly, the Application stands dismissed.
In view of the aforesaid order passed by the Supreme Court, the appeal is adjourned sine die to await the decision of the SLP.
7. According to the respondents the aforesaid order passed by the Division Bench of the High Court formed basis for issuing the impugned order dated 24.07.2009 whereby ad hoc promotion was granted and it was also clearly indicated in the said order that the said ad hoc promotion shall not confer any right to continue in the grade indefinitely or for inclusion in the regular panel and the said order was also made subject to the outcome of the pending court cases. The judicial notice can be taken of the fact that the controversy in the matter has been settled by the Delhi High Court finally by allowing the aforesaid appeal and setting aside the judgment of the learned Single Judge vide its judgment dated 19.10.2011, whereby the Delhi High Court in para 35-38 of the judgment has held as under:
35. No doubt the earlier norms being adopted as per an affidavit filed by respondent No.1 was of seniority having precedence but then that was not when this rule providing for accelerated possibility of promotion to the diploma holders on acquiring a degree was in question. The promotion rules were amended in pursuance to the representations received from the diploma holders who wanted to shift the stream by acquiring a degree and thus a quota was carved out for them. If they want to get promotion through this quota then their seniority in his quota would alone be the criteria, the date of acquiring the degree and not the period rendered in service as a diploma holder. This is why some period of service has to be post acquiring the degree.
36. We are, thus, of the considered view that the impugned judgment of the learned single Judge cannot be sustained in view of the aforesaid legal position and more specifically in view of the pronouncements in Shailendra Dania & Ors. case (supra).
37. The impugned order is set aside and the modified seniority which has now been made applicable in terms whereof the appellants are senior to respondents 2 & 3 are upheld, the date of acquiring the degree being the material date with requisite period of service post acquiring the degree.
38. The appeal is accordingly allowed leaving the parties to bear their own costs.
8. Thus in view of the law laid down by the Delhi High Court in the aforesaid LPA, whereby similar provision in the recruitment rules pertaining to the same Department was under consideration with the only difference that in the case before the High Court the recruitment rules to the post of AE (C) was involved, whereas in the case before us we are concerned with the recruitment rules for the post of AE (E), we are of the view that that applicants have not made out any case for grant of relief. The Action of the respondents in making promotions to the post of AE (E) based upon seniority list (Annexure R-4), which seniority list is based upon the date of acquiring degree and not the period rendered in service of a diploma holder, the action of the respondents cannot be faulted as the promotion is being made against the vacancies meant for direct recruitment, which vacancies have to be filled in from candidates possessing degrees.
9. In the result, for the foregoing reasons, we are of the view that the applicants have not made out any case for grant of relief. Accordingly, the OA is dismissed, without, however, any order as to costs.
10. Before parting with the matter we wish to observe that since the judgment in the LPA has been rendered by the High Court of Delhi on 19.10.2011, as such it was also not permissible for the respondents to make regular promotion to the post of AE (E) in terms of the undertaking given by the respondents before this Tribunal in the earlier OA, as the matter was sub-judice and not attained finality.
(Shailendra Pandey) (M.L. Chauhan) Member (A) Member (J) San.