Central Administrative Tribunal - Delhi
Sh. Mahender Singh vs Delhi Jal Board on 15 December, 2009
Central Administrative Tribunal Principal Bench TA 684/2009 New Delhi, this the 15th day of December, 2009 Honble Shri L.K. Joshi, Vice Chairman (A) Honble Dr. K.B. Suresh, Member (J) Sh. Mahender Singh S/o Shri Nathu Singh, R/o H.No.400, Than Singh Nagar, Ghati Road, Anand Parbat, New Delhi-110005 . Applicant (By Advocate : Shri Pradeep Kumar) Versus 1. Delhi Jal Board, Through its Chairperson, Varunalaya Phase-II, Jhandewalan, Near Karol Bagh Terminal New Delhi-110005 2. The Chief Executive Officer, Delhi Jal Board, Varunalaya Phase-II, Jhandewalan, Near Karol Bagh Terminal New Delhi-110005 3. Shri A.K. Kumar, Superintending Engineer (E & M), Water Works-II, Haiderpur Water Treatment Plant, Delhi-110042 4. Shri M.P. Sharma, Superintending Engineer (E & M), W & S-I, Ring Road Sewage Pumping Station, Opposite Maharani Bagh, Near DESU Colony, New Delhi 5. Shri V.K. Sabherwal, Superintending Engineer (E & M), Water Works-I, Chandrawal Water Works No.1, Near Old Secretariat, Civil Lines, Delhi-110054 6. Shri S.S. Ahluwalia, Superintending Engineer (E & M), Water Works-III, Bhagirathi Water Treatment Plant, Opposite Yamuna Vihar, Gokul Puri, Delhi 7. Shri P.M. Nagar, Superintending Engineer (E & M), SDW-II, Rithala Sewage Treatment Plant, Delhi Jal Board, Sector-11, Delhi-110085 8. Shri A.K. Jain, Chief Engineer (E & M), Sewage Disposal Works, Kilokri Pumping Station, Near Jal Vihar Terminal, Lajpat Nagar, New Delhi-110024 9. Shri S.C. Goyal, Superintending Engineer (E & M), WC Chandrawal Water Works, Near Old Secretariat, Civil Lines, Delhi-110054 10. Shri Prabhat Shekhar, Superintending Engineer (E & M), CSE-II, Lucknow Road, Timarpur, Delhi 11. Shri I.S. Tossaria, Superintending Engineer (E & M), CSE Planning, Lodhi Road Pumping Station, Near Mehar Chand Market, New Delhi 12. Shri Ranbir Yadav, Superintending Engineer (E & M), SDW-IV Okhla Sewage Treatment Plant, Near Central Road Research Institute, Mathra Road, New Delhi 13. Shri A.P. Gupta, Superintending Engineer (E & M), W&S-II, E-39, Connought Place, Delhi Jal Board Office, New Delhi-110001 Respondents. (By Advocate : Shri Nisha Kant Pandey) O R D E R
Mr. L.K. Joshi, Vice Chairman (A) Sh. Mahender Singh, the Applicant herein, is aggrieved that in spite of his plea of promotion from the date the person junior to him was promoted, i.e., from 17.02.1983, being considered favourably by the learned single Judge and learned Division Bench of the Honourable High Court of Delhi and by the Honourable Supreme Court in SLP, he has been promoted with effect from 2.07.1990 by the Respondent, Delhi Jal Board (DJB). The following relief has been asked for:
(a) To direct the respondents to consider the case of the petitioner to regularise his ad-hoc promotion to the post of Executive Engineer (E&M) with effect from due date i.e., 1.6.82, the date from which he has been actually working against a permanent and regular vacant post though shown ad-hoc or atleast from the date his immediate juniors stood regularized i.e., 17.2.83, instead of 2.7.90, with appropriate seniority accordingly and grant all consequential benefits including consideration of his case for further promotion on regular basis to the post of Superintending Engineer (E&M) and Chief Engineer (E&M) from due dates (the dates his immediate juniors stood promoted) with all attendant benefits with full pay and allowances.
2. The facts, as are necessary for the resolution of this issue, are narrated hereafter. The Applicant belongs to S.C. category. He was appointed under the first Respondent, i.e., Delhi Jal Board (DJB) as Assistant Engineer (AE) (E & M) on 22.09.1978 as a direct recruit. The Recruitment Rules for the Electrical and Mechanical (E & M) cadre in the DJB provided for filling up the post of Executive Engineer (EE) (E&M) by promotion from A.E. (E&M) failing which by transfer/deputation and failing both by direct recruitment. The Applicant was promoted to the post of EE on current duty charge basis with effect from 1.06.1982 by an office order of the same date. This was treated as ad hoc with effect from 1.06.1982 with the approval of Delhi Water Supply Committee by resolution number 312 dated 7.12.1983. A seniority list was issued on 30.04.1985 by the Respondent DJB, in which the Applicant was placed at serial number 15. The Respondents from serial number 3 to 12 were placed below the Applicant in the seniority list as follows:
S. No.
------- Name
-------
Seniority Position
--------
(i) Sh. A.K. Kumar (respondent no. 3) 16
(ii) Sh. M.P. Sharma (respondent no. 4) 17
(iii) Sh. V.K. Sabherwal (respondent no. 5) 19
(iv) Sh. S.S. Ahluwalia (respondent no. 6) 20
(v) Sh. P.M. Nagar (respondent no. 7) 21
(vi) Sh. A.K. Jain (respondent no. 8) 22
(vii) Sh. S.C. Goyal (respondent no. 9) 23
(viii) Sh. Prabhat Shekhar (respondent no. 10) 25
(ix) Sh. I.S. Tossaria (respondent no. 11) 27
(x) Sh. Ranbir Yadav (respondent no. 12) 29
(xi) Sh. A.P. Gupta (respondent no. 13) 34 A Departmental Promotion Committee (DPC) met in June 1990 to consider the case of Assistant Engineers for regularization to the post of Executive Engineers. The name of the Applicant was, however, kept in sealed cover on the ground that disciplinary proceedings were pending against him in June 1990, on the date of meeting of the DPC. The Memoranda of charge had been issued to the Applicant on 10.03.1986 and 20.02.1990 and there inquiries were pending at the time of the meeting of the DPC. On the recommendation of the DPC, officers junior to the Applicant were regularized to the post of Executive Engineer by order dated 2.07.1990. Third, fourth, sixth and eighth Respondents, who were junior to the Applicant, were regularized as Executive Engineers with effect from 17.02.1982, when they were appointed as Executive Engineers on ad hoc basis. The two disciplinary proceedings adverted to above culminated in exoneration of the Applicant vide order dated 11.05.1992 and 18.02.1994 respectively. Period of his suspension was also ordered to be treated as spent on duty by order dated 18.02.1994. When, in spite of the exoneration in the departmental proceedings, the sealed cover was not opened, the Applicant approached the Honourable High Court of Delhi in May, 1997 through Writ Petition (C) number 2865/1997. The learned single Judge allowed the Writ Petition on 18.11.1999 [reported in 2000 (52) DRJ 109] and directed the Respondent to open the sealed cover and in case the Applicant had been recommended by the DPC for promotion, he would be recommended by the DPC for promotion, he would be promoted with all consequential benefits. The L.P.A. preferred by the Respondents was dismissed by the learned Division Bench of the Honourable Delhi High Court vide its order dated 27.03.2000. The SLP, preferred by the Respondents, was also dismissed by the Honourable Supreme Court by order dated 1.09.2000 [reported in 87(2000) D.L.T. 535 (SC)]. Following these directions, the DJB opened the sealed cover by its resolution number 731/DJB and approved the regular promotion of the Applicant to the post of Executive Engineer, but only with effect from 2.07.1990, i.e., the date from which Sh. Ranbir Yadav, the 12th Respondent, junior most in the list of promotion was promoted. He was placed above Sh. Ranbir Yadav at serial number 15-A in the seniority list. In the seniority list, issued on 8.10.2001, placed at page 54 of the paper book, the Applicant was placed below the private respondents mentioned in the list below:
1. Sh. M.P. Sharma (respondent no. 4) (S.No. 9)
2. Sh. A.K. Kumar (respondent no. 3) (S. No. 10)
3. Sh. V.K. Sabherwal (respondent no. 5) (S. No. 11)
4. Sh. P.M. Nagar (respondent no. 7) (S.No. 12)
5. Sh. A.P. Gupta (respondent no. 13) (S. No. 13)
6. Sh. S.C. Goyal (respondent no. 9) (S.No. 14) The applicant had expected that he would be placed above the fourth Respondent, Sh. M.P. Sharma, who was immediate junior to the Applicant in the seniority list of 30.04.1985, placed at pages 32 to 39 of the paper book and already adverted to above. Aggrieved by this, the Applicant made representations to the authorities, copies of which have been placed at annexes P-12 to P-15. The Respondents did not respond to the representations of the Applicant. Meanwhile, some of juniors of the Applicant were promoted as Superintending Engineers and the eighth Respondent had been given the current duty charge of the Chief Engineer also. The Applicant was given current duty charge of the post of Superintending Engineer on 28.02.2003 on the eighth Respondent vacating the post on current charge as Chief Engineer.
3. The learned counsel for the Applicant has lucidly contended that once the Applicant was exonerated in the two disciplinary proceedings, he had to be considered for promotion from the date his immediate junior was promoted. The Honourable Supreme Court, in the Applicants case, Delhi Jal Board Vs. Mahinder Singh, 87 (2000) DLT 535(SC) has succinctly summed up the ratio thus:
5. The right to be considered by the Departmental Promotion Committee is a fundamental right guaranteed under Article 16 of the Constitution of India, provided a person is eligible and is in the zone of consideration. The sealed cover procedure permits the question of his promotion to be kept in abeyance till the result of any pending disciplinary inquiry. But the findings of the Disciplinary Enquiry exonerating the officer would have to be given effect to as they obviously relate back to the date on which the charges are framed. If the disciplinary inquiry ended in his favour, it is as if the officer had not been subjected to any Disciplinary Enquiry. The sealed cover procedure was envisaged under the rules to give benefit of any assessment made by the Departmental Promotion Committee in favour of such an officer, if he had been found fit for promotion and if he was later exonerated in the disciplinary inquiry which was pending at the time when the DPC met. The mere fact that by the time the disciplinary proceedings in the first inquiry ended in his favour and by the time the sealed was opened to give effect to it, another departmental enquiry was started by the department, would not, in our view, come in the way of giving him the benefit of the assessment by the first Departmental Promotion Committee in his favour in the anterior selection. There is, therefore, no question of referring the matter to a Larger Bench. The learned Counsel would further contend that the Applicant belonged to the S.C. Category and was entitled to reservation in promotion also. There was no reason why the Applicant should not have been promoted from the date Sh. A. Kumar, the third Respondent and his immediate junior, was promoted. It is further contended that the Respondent DJB was inclined to re-consider the matter and an item number 20 (Annex P-16) was also placed for consideration before the Delhi Jal Board on 27.03.2002, but the result of that has not been disclosed to the Applicant.
4. Unfortunately not much assistance was given by the Respondents, though the learned counsel for the Respondents vehemently opposed the cause of the Applicant. The first contention of the learned counsel is that the order dated 20.12.1983, by which the Applicant was promoted on ad hoc basis clearly mentioned that it shall not entail any benefit of seniority. The Applicant, therefore, cannot claim seniority. Second, it is contended that the seniority of the Applicant was fixed by the Union Public Service Commission, which is not a party before this Tribunal. Third, it is vehemently denied that any such item number 20, as placed at Annex. P-16, was placed before the Respondent DJB. The learned counsel would castigate the Applicant for placing on record an unsigned document like Annex. P-16. It is further contended that the Recruitment Rules for the post of Executive Engineer were framed in 1985, which provided for eight years regular service in the Assistant Engineers cadre for promotion to the post of Executive Engineer. The Applicant would thus not be eligible for promotion in 1983.
5. In reply, the learned counsel for the Applicant would contend that those officers who were promoted before the year 1985, were considered to have been promoted as Executive Engineer notwithstanding the fact that they had not completed eight years in the grade of A.E. The private Respondents in the OA were similarly situated as the Applicant and got their regular promotion from the date of their ad hoc promotion. It would be in gross violation of Article 14 of the Constitution of India, contends the learned counsel.
6. We have given our utmost consideration to the rival contentions and have perused the record placed before us, including the file number DJB/AC(T)90-2000 of the Respondent DJB titled D.P.C. considering Appointment of EE (E&M) May 1990 in UPSC.
7. The issue involved is simple. It is by now a well established principle of administrative jurisprudence that if an employee of the Government is exonerated in departmental proceedings, sealed cover regarding consideration by the DPC for promotion would be opened and if the Government employee has been recommended for promotion by the DPC, he/she would be promoted from the date his/her immediate junior was promoted. The Honourable Supreme Court has clearly articulated this in the judgement in Delhi Jal Board Vs. Mahinder Singh (supra). The contention of the Respondents that the Recruitment Rules of 1985 had contemplated promotion after eight years of regular service in the grade of A.E. is totally unsatisfactory. This rule cannot be applied only to the Applicant, while similarly situated employees, junior to him on the basis of the record have been promoted. This is a clear case of discrimination and violation of Article 14 of the Constitution. The contention that the letter of promotion on ad hoc basis mentioned that the Applicant could not claim seniority on its basis is also in the nature of hair splitting. This argument cannot be advanced solely in the case of the Applicant, when others, similarly situated, have been given the same advantage, which is denied to the Applicant. It is unfortunate that the learned counsel for the Respondents should have denied the existence of item number 20, dated 27.03.2002 (Annex. P-16) with such asperity, though the self same item is placed in the file DJB/AC(T)90-2000, given by the Respondents to us, at least at a half-a-dozen places in the file. This item is in fact a reproduction of a detailed note, from page 24 to 27 of notes portion of the file, written by the Member (Administration), Sh. A.K. Paitandy, dated 24.03.2002 in which it was proposed thus:
In the ultimate analysis the immediate action to be approved is for conversion/treatment of Shri Mahinder Singhs posts of EE (E&M) as that of SE (E&M) for justified administrative relief to individual.
This was placed in the 47th meeting of the DJB held on 08.05.2002, under the Chairpersonship of the Chief Minister of Delhi. This item was deferred because report of CVC was not available. Later a decision was taken on 3.05.2002, placed at page 113 of the file, to withdraw this note. The argument regarding the decision about seniority being taken by UPSC is totally misplaced. It is not in the domain of the UPSC to fix seniority in any cadre and there is nothing on record to show that seniority has been fixed by the UPSC. We are getting the impression that somehow the Respondents want to deny to the Applicant his due by means fair or foul.
8. In the result, on the basis of the above discussion the OA succeeds. We quash and set aside the order dated 11.12.2000 (Annex. P-10) to the extent that the Applicant has been shown to have been promoted on 2.07.1990 and placed below Shri I.S. Tossaria and order dated 8.10.2001 by which the Applicant has been placed at serial number 15-A in the seniority list of Executive Engineer (E&M). We direct that the Applicant should be regularized for promotion to the post of Executive Engineer (E&M) with effect from 17.02.1983 when his immediate junior Shri A.K. Kumar, the third Respondent herein was regularized to the post of Executive Engineer. His seniority in the seniority list of 8.10.2001 (Annex. P-11) would be suitably re-adjusted as to be above all persons who were junior to him in the seniority list at Annex P-3. He would be eligible for all consequential benefits for promotion to the higher posts and payment of arrears of pay and allowances, as would have been due to him on such promotion. As the Applicant has unnecessarily been forced into litigation, he has to be awarded the cost of litigation, which we compute as Rs. ten thousand. These directions would be complied with as expeditiously as possible but not later than three months from the date of receipt of a copy of this order.
( Dr. K.B. Suresh ) (L.K. Joshi) Member (J) Vice Chairman (A) /dkm/