Central Administrative Tribunal - Delhi
Manohar Lal vs North Delhi Municipal Corporation ... on 22 March, 2021
1
O.A No. 2267/2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A No. 2267/2015
Reserved on : 27.02.2020
Pronounced on : 22.03.2021
Hon'ble Mrs. Justice Vijay Lakshmi, Member (J)
Hon'ble Ms. Aradhana Johri, Member (A)
Manohar Lal,
Retired as Draftsman Grade-II
S/o. Late Sh. Uttam Chand,
R/o. 812, Sector-7 (Extension),
Urban Estate, Gurgaon, Haryana,
Group B, Aged around 62 years, ....Applicant
(By Advocate : Mr. Sourabh Ahuja)
Versus
1. North Delhi Municipal Corporation (NDMC)
Through its Commissioner,
9th Floor, Dr. SPM Civic Centre,
Pandit Jawahar Lal Nehru Marg,
Minto Road, New Delhi - 110 002.
2. South Delhi Municipal Corporation (SDMC)
Through its Commissioner
9th Floor, Dr. SPM Civic Centre,
Pandit Jawahar Lal Nehru Marg,
Minto Road, New Delhi - 110 002.
3. Additional Commissioner (Engineering)
South Delhi Municipal Corporation
(erstwhile MCD)
9TH Floor, Dr. SPM Civic Centre, New Delhi.
4. Chief Town Planner
Head of Department
Town Planning Department, SDMC
13th Floor, Civic Centre,
Opposite New Delhi Railway Station,
Delhi. ...Respondents
2
O.A No. 2267/2015
(By Advocate : Mr. M. S. Reen for respondent no. 1, Mr. R.
K. Jain with Ms. Neha Bairagee for respondents no. 2, 3
and 4)
ORDER
Ms. Aradhana Johri, Member (A) :
The applicant was appointed as Draftsman Grade II with the respondents-organisation MCD on 24.03.1977. Subsequently, he was given promotion to the rank of Draftsman Grade II on ad hoc basis. After much litigation and orders dated 23.01.2013 of this Tribunal in O.A No. 1759/2012, he was promoted. In compliance of order dated 23.01.2013 passed in O.A No.1759/2012, respondent no. 1 passed office order no. G-IV/Estt./ENGG.HQ/2014- 15/138 dated 29.05.2014 (Annexure 1). Vide this order the applicant was promoted to Draftsman Grade II with effect from 20.06.2001 instead of 05.03.2010 as ordered earlier. The applicant has been agitating with the respondents to give him consequential promotion to the post of Draftsman Grade I and thereafter to Architectural Assistant.
2. It is the contention of the applicant that as per the aforementioned orders of this Tribunal dated 23.01.2013 and the subsequent orders of respondent no. 1 he should get all consequential benefits according to the notified recruitment rules and availability of vacancies in the next 3 O.A No. 2267/2015 cadre. His claim is that he would complete 5 years as Draftsman Grade II in 2006 and would be eligible for promotion to Draftsman Grade I with effect from 28.06.2006. He has stated that he would complete a requisite period for Draftsman Grade I on 20.06.2009 and be eligible for the post of Architectural Assistant. Therefore, the DPC should be conducted to determine his fitness on these relevant dates. He has cited several examples wherein backdated and consequential promotions have been done in the cadres of Assistant Chief Accountants, Accountants and Junior Accountants. He has made the following specific prayers :-
"(a) Direct the respondents to conduct yearwise regular DPC for the post of Draftsman Grade-I w.e.f., 2006 onwards and consider the name of the Applicant for the said post and if the applicant is adjudged "FIT" by the DOC then he may kindly be granted promotion to the post of Draftsman Grade-I w.e.f. 28.06.2006 or from the date when regular vacancies of Draftsman Grade-I earmarked for departmental candidate arise with all consequential benefits viz. seniority, promotion, difference in pay, re-fixation of pay/pension etc and
(b) Direct the respondents to conduct the regular DPC for the post of Architectural Assistants w.e.f. 28.06.2009 onwards and consider the name of the applicant for the said post and if the applicant is adjudged "FIT" by the DPC, then he may kindly be granted promotion to the post of Architectural Assistant w.e.f. 28.06.2009 or from the date when regular vacancies of Architectural Assistants earmarked for departmental candidate arise with all consequential benefits viz. seniority, promotion, difference in pay, re-fixation of pay/pension etc. and
(c) Award cost in favour of the applicant and against the respondents and /or 4 O.A No. 2267/2015
(d) Pass any further order, which this Hon'ble Tribunal may deem fit, just and equitable in the facts and circumstances of the case."
3. The claims of the applicant have been denied by the respondents. They have stated that this O.A is not maintainable on the ground of mis-joinder of necessary parties. They have stated that the applicant has sought that year-wise DPC be conducted for the post of Draftsman Grade I with effect from 2006 onwards and in case he is declared fit to be granted promotion as Draftsman Grade I, on the posts earmarked for departmental candidates. He has further prayed for similar DPCs to the post of Architectural Assistant. As per respondents, this would affect the rights of various parties as it would involve changes in the seniority list. They have cited ruling of the Hon'ble Apex Court in the case of Rajan Kumar & Ors. Vs. State of Bihar and Ors., 2015 (2) SCC (L & S 532) wherein the Hon'ble Apex Court has clearly held that no adverse orders can be passed against those who have not been made parties to the litigation. The respondents have further stated that with the trifurcation of the MCD some vacancies have also been abolished in the Draftsman cadre. As per their contention, DPC can be conducted only after finalisation of the seniority list of Draftsman Grade II. It is 5 O.A No. 2267/2015 also contended by the respondents that regular service of 5 years in the post of Draftsman Grade I is necessary for Architectural Assistant whereas, as per the applicant himself he would have only three years of regular service for the same if he is treated as promoted in 2006 to Draftsman Grade I.
4. Respondents have cited three judgments, namely Union of India & Ors. Vs. K. K. Vadera & Ors. in 1989 Supp (2) SCC 625, OA No. 812/2014 in Shishu Pal Singh Vs. Medical Superintendent Safdarjung Hospital & Ors. and O.A N. 4085/2015 in Smt. Manju Seth Vs. UOI & Ors.
5. Heard Mr. Sourabh Ahuja, learned counsel for applicant and Mr. M. S. Reen for respondent no. 1, Mr. R. K. Jain with Ms. Neha Bairagee for respondents no. 2, 3 and perused the records.
6. The first point to be considered is whether all necessary parties have been impleaded. Respondents have raised the objection that if year wise DPCs are conducted for promotion of the applicant with backdate, then, the seniority list at respective levels will have to be revised. This will impact several persons who may be above the applicant in terms of seniority. None of these have been 6 O.A No. 2267/2015 impleaded as parties. In the case of Rajan Kumar & Ors. Vs. State of Bihar and Ors., (supra), the Hon'ble Apex Court has clearly ruled that no adverse orders can be passed against those who are not made parties. On this ground alone, this O.A is liable to be dismissed.
7. Even on consideration of the merit of the matter, there are holes in the applicant's case. For example, on the date on which he desires promotion to Architectural Assistant i.e., from 28.06.2009, he would even, as per his own contention, complete only three years in Draftsman Grade I whereas in the service rules that have been filed, regular service of five years as Draftsman Grade I has been clearly provided.
8. Respondents have also stated that after trifurcation of the MCD several vacancies are abolished. Therefore, RTI information regarding availability of vacancies being prior to that would not hold good.
9. In O.A No. 4085/2015 Smt. Manju Seth, IFS Vs. Union of India & Ors., this Tribunal vide its order dated 14th November, 2019 clearly held the following :-
"6. The question as to whether a retired employee can be promoted with effect from an earlier date, is no longer res integra. In Union of India and Others vs. K.K. Vadera and Others, 1989 Supp (2) SCC 625, the 7 O.A No. 2267/2015 Hon'ble Supreme Court categorically held that promotions can only be prospective in operation. The only exception carved out is where the employee was superseded by his junior on account of pendency of disciplinary or other similar proceedings and, at a later stage, he was exonerated of the same. In such a case, the employee, even if retired, is entitled to be extended the benefit of promotion, on par with his junior. This again is subject to the condition that the junior should have been promoted with effect from a date, that is earlier to the date of retirement of such employee. In the instant case, the applicant did not state that any junior to her was promoted, before her retirement.
7. The inclusion of a retired employee in the zone of consideration is only to ensure that (a) the exclusion shall not result as a wind fall for those who are otherwise outside it, and (b) shall not expose the officers, who were otherwise in the zone of consideration, to face the competition from those, who were not eligible for consideration, but for the retirement of the employee. This has been explained, time and again, in the official memoranda as well as judgments."
10. The same point was also made in OA. No. 812/2014 wherein this Tribunal held the following :-
"6. It is fairly well settled that the promotion can be only prospective in effect. The same is evident from the judgment of the Hon'ble Supreme Court in Union of India and Others vs. K. K. Vadera and Others, 1989 Supp (2) SCC 625. The only exception is where a sealed cover procedure is adopted on account of pendency of any disciplinary proceedings and the employee is exonerated of the charges. Even if he retired from service, the employee is entitled to be promoted on notional basis with effect from the date, on which his junior was promoted, if he was exonerated. This again is subject to the rider that the promotion of the junior was from a date, before the date of retirement of the concerned employee. None of the circumstances exist in the instant case."
11. It is therefore well settled that a retired employee is entitled to be promoted on notional basis with effect from the date on which his junior is promoted. Further rider is that a junior should have been promoted from the date 8 O.A No. 2267/2015 before the date of retirement of the concerned employee. These contentions do not hold good in the present case.
12. In light of the above, this O.A is dismissed as being devoid of merit. No order as to costs.
(Aradhana Johri) (Justice Vijay Lakshmi)
Member (A) Member (J)
/Mbt/