Central Administrative Tribunal - Delhi
D.S. Mehra vs Chief Executive Officer on 7 March, 2014
Central Administrative Tribunal Principal Bench OA No.498/2013 Order reserved on: 13.01.2014. Pronounced on:07.03.2014 Honble Mr. V.N. Gaur, Member (A) Honble Mr. Raj Vir Sharma, Member (J) D.S. Mehra, R/o AG-1/63-B, Vikas Puri, New Delhi. -Applicant (By Advocate Shri M.K. Bhardwaj) -Versus- 1. Chief Executive Officer, Delhi Jal Board, Varunalaya Building-II, Jhandewalan, New Delhi. 2. The Member (Administration), Delhi Jal Board, Varunalaya Building-II, Jhandewalan, New Delhi. -Respondents (By Advocate Shri N.K. Pandey) ORDER
Mr. V.N. Gaur, Member (A) The applicant in this case was appointed to the post of Head Mechanic vide office order no.185 dated 10.12.1982 which was later designated as Foreman. According to the notified Recruitment Rules (RRs), there is no promotional avenue in the category of Foreman. The applicant has been representing to the respondents since 1997 as his is an isolated post and there being no promotional avenue, he may be either re-designated as Sub Engineer (Civil) or promotion may be given personal to him, as was done in the cases of Shri H.L. Bharija and Shri K.C. Batra. His request, however, has not been considered. The applicant has filed this OA with the following prayers:
(i) To direct the respondents to hold Comprehensive Cadre Review for creating enough promotional avenues to remove the stagnation among Foreman by creating new posts.
(ii) To direct the respondents to consider for creating at least two promotional avenues for applicant/ Foreman.
(iii) To direct the respondents to grant designation of Sub-Engineer (Civil) to applicant on personal basis.
(iv) To allow the OA with exemplary costs.
2. The learned counsel for the applicant submitted that the applicant has been submitting his representations from time to time and got favourable assurances that the authorities will consider his request sympathetically. On his representation dated 16.12.2011 the CAO, Delhi Jal Board (DJB) has written we should have promotional avenues for Dip. holders Foreman as AE. On his representation dated 09.01.2012 the CAO had remarked they be included in feeder cadre for A.E. 5% reservation. However, the department has not examined the matter properly, taking into account the hardship undergone by the applicant because of non-promotion since 1982. It was incumbent upon the respondents to have undertaken a cadre review, as is done for other cadres to remove this stagnation for the isolated post of Foreman. He further submitted that the nature of duties of J.E. (Civil) and Foreman were same and, therefore, the applicant should have been considered for promotion as A.E. (Civil) by amending the RRs of A.E. suitably or by creating promotional post for Foreman on the same analogy on which promotional avenues were created in the cadre of J.E. According to the learned counsel the respondents have violated Articles 14 and 16 of the Constitution of India, as they have created promotional avenues for all technical and non-technical cadres in DJB except the cadre of Foreman for no justifiable reasons. In support of his submission the learned counsel relied on the following judgments:
i) U.T. Chandigarh & Ors. v. Avtaar Singh & Ors., (2002) 10 SCC 432;
ii) Council of Scientific and Industrial Research and Anr. V. K.G.S. Bhatt and Anr., (1989) 4 SCC 635;
iii) Dr. O.Z. Hussain v. Union of India, 19990 Supp. SCC 688.
iv) A. Satyanarayana & Ors. v. S. Purshottam & Ors., (2008) 5 SCC 416; and
v) Vasudev Singh v. Union of India, (2006) 12 SCC 753.
vi) Food Corporation of India and others v. Parashotam Das Bansal and others, (2008) 5 SCC 100.
3. The learned counsel for the respondents, on the other hand, denied that the duties of Foreman were similar to J.E. He admitted that the post of Foreman was an isolated post and there was no promotional avenue in the RRs. However, the Government in order to take care of such situations had introduced the Scheme like ACP, which has been later on converted into MACP, giving at least three financial upgradations during the career of a Government employee. Therefore, there should be no cause of complaint in this regard. He further denied that there was any post of Sub-Engineer in DJB. He also submitted that the applicant had filed a misleading representation to the CEO of DJB by saying that he was preparing estimate of works, maintaining MBs, muster rolls, water emergency services, water supply etc. whereas there was no administrative order for the applicant to do such type of work. With regard to the case of Shri H.L. Bharija it was submitted that his case was different from the case of applicant and, therefore, could not be compared. The learned counsel submitted that the respondents had given due consideration to the representations of the applicant but did not find it possible to include Foreman in the feeder cadre of A.E. (Civil). The respondents have relied on the decision of the Honble Apex Court in P.U. Joshi and others v. Accountant General, Ahmedabad and others, (2003) 2 SCC 632. The learned counsel has also submitted that the case-laws relied upon by the applicant is not applicable to the present case.
4. Rebutting some of the points raised by the learned counsel for the respondents, the learned counsel for the applicant referred to Delhi Jal Board Schedule of Establishment 2013-2014 to prove that the post of Sub-Engineer in the scale of Rs.6500-10500 with revised pay of Rs.9300-34800+4200 PB 2 still existed. He also tried to establish with the help of various documents enclosed as annexure RJ-II. (Colly.) to the rejoinder that the services of the applicant had been used by the respondents inter-changeably with J.E (Civil) and the applicant was entrusted with other duties which are normally performed by J.E. He also submitted that with a view to remove stagnation the respondents have carried out re-structuring or created posts for many other cadres as shown in page-74 of the Schedule of Establishment 2013-2014 annexed to the rejoinder filed by him, but they had singled out the cadre of Foreman for a different treatment.
5. We have heard the learned counsels from both the sides and perused the material placed on record. The applicant has not received a single promotion since the time he joined the service in DJB, which is nearly 32 years ago. While the respondents case is that the post of Foreman is an isolated post, which the applicant joined knowing that there was no promotional avenue in this cadre and, therefore, the respondents cannot do any thing at this stage, except giving him financial upgradations as per the Government policy under ACP/MACP. From the replies contained in the counter-affidavit filed by the respondents it is clear that the representations or the prayers of the applicant have been treated apparently in a mechanical manner. Since there is no promotional avenue in the cadre of Foreman the applicant has been submitting his representations from time to time and it is also observed from the endorsement made by the senior officers of DJB that there was an intention to ameliorate the hardship faced by the applicant. However, the same did not result into any concrete action except reiterating the factual position that Foreman was an isolated post. The applicant has brought to our notice the instructions issued by the Department of Personnel and Training, Government of India (such as No.I-11011/1/2009-CRD dated 12.12.2010) stipulating that a cadre review should take into account inter alia the issue of career progression. Apparently, the respondents have not made any effort in that direction to address the problem of stagnation being faced by the applicant ever since his joining DJB. From the record placed before us it is seen that the qualification of Foreman is diploma in Engineering, which is also the qualification for J.E. cadre. It is beyond comprehension as to why the respondents cannot integrate the post of Foreman with the cadre of J.E. when, as demonstrated by the applicant through documents, the services of the Foreman are being used interchangeably with the J.E. in DJB. In this context we may refer to the decision in Avtar Singh (supra) where the Honble Supreme Court has observed It may be borne in mind that stagnation in service for an unduly long period without having an avenue for promotion is not in the interest of administration.
6. In Parashotam Das Bansal (supra) the Honble Supreme Court has held that an employee of a State has no fundamental right of promotion but has a right to be considered therefor. Promotion is a normal incidence of service and the Court can direct creation of avenues for promotion in their absence. In K.G.S. Bhatt (supra) while holding that promotion granted to respondent by CAT even though erroneous not to be interfered with the Honble Supreme Court, observed as follows:
9. That then is the scope of bye-law 71(b)(ii). But that does not mean that we should interfere with the relief granted to respondent 1. By pointing out the error that crept into the decision of the Tribunal, we need not take to its logical end which will defeat justice. Respondent I is not a lay-man. He is a highly qualified engineer. Although joined service with a diploma in Engineering, he later passed Bachelor of Engineering (B. E)' and also acquired M.Tech. degree and one, more diploma (D.P.M.). He was, however, left without opportunity for promotion for about twenty years. This is indeed a sad commentary on the appellant's management. It is often said and indeed, adroitly, an organisation public or private does not 'hire a hand' but engages or employs a whole man. The person is recruited by an organisation not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personnel development as well. (See: Principles of Personnel Management by Flipo Edwin. B.4th Ed. p. 246). Every management must provide realistic opportunities for promising employees to move upward. "The organisation that fails to develop a satisfactory procedure for promotion is bound to pay -a severe penalty in terms of administrative costs, misallocation of personnel, low morale, and ineffectual performance, among both non-managerial employees and their supervisors.", (See: Personnel Management by Dr. Udai Pareek p. 277). There cannot be any modern management much less any career planning, man-power development, management development etc. which is not related to a system Of promotions. (See: Management of Personnel in Indian Enterprises by Prof. N. N. Chatterjee, Chap. 12, p. 128). The appellant appears to have overlooked this basic requirement of management so far as respondent I was concerned till N. R. and A. S. were introduced.
7. With regard to the case of P.U. Joshi (supra) relied upon by the respondents it is observed that the facts of that case are different from the present one, as in that case the Section Officers and Supervisors formed part of a common seniority list notified by the Government and the Cuttack Bench of this Tribunal had allowed the OA filed by the Supervisors for granting promotion.
6. From the foregoing discussion, it is therefore clear that there exists a policy of the Government to undertake cadre restructuring that should take into account inter alia the issues like stagnation and lack of promotional avenues in various cadres. The respondents have while undertaking such exercise for other cadres not taken any step to carry out a cadre re-structuring in respect of the isolated post of Foreman possibly because the lone member of that cadre was not able to exert enough pressure on the decision makers. The respondents have also failed to point out any reason that would come in the way of undertaking such an exercise or why such exercise is not feasible or desirable. They have also not been able to establish as to why a person with the qualification of diploma in Engineering, which is the same as prescribed for the post of J.E., cannot be considered for lateral movement or be made part of a larger cadre of persons with similar qualification, especially when the work being taken from the applicant as Foreman is similar to the job being done by the J.E.
7. Considering the entire conspectus of the case, the decisions of the Honble Supreme Court quoted above and from the aforesaid reasons, we direct the respondents to undertake cadre restructuring for the cadre of Foreman with a view to remove stagnation, including the feasibility of integrating it with any other cadre with similar qualification in DJB like that of J.E. This exercise shall be undertaken within a period of three months from the date of receipt of a copy of this order. The OA is allowed in the aforesaid terms. No costs.
(RAJ VIR SHARMA ) (V.N. GAUR)
Member (J) Member (A)
San.