Central Administrative Tribunal - Delhi
Shri Bhagirath Sharma vs Delhi Development Authority on 17 July, 2012
Central Administrative Tribunal Principal Bench OA No.472/2010 With OA No.430/2011 & OA No.431/2011 Order reserved on: 16.07.2012 Pronounced on:17.07.2012 Honble Mr. M.L. Chauhan, Member (J) Honble Mrs. Manjulika Gautam, Member (A) OA No.472/2010 1. Shri Bhagirath Sharma, UDC in ND-5, DDA, Kesav Puram, Delhi-110035 Aged about 56 years 2. Shri Satish Kumar, UDC in E.D-IV, Madhuban Chowk, Delhi - 110 085, Aged about 53 years 3. Shri Mahavir Prasad Rohilla, UDC in HAU-8, Rohini, Delhi - 110 085 Aged about 56 years 4. Shri Sukhpal Singh, UDC in the Office of Respondent A Block, Vikas sadan, COM-LD, New Delhi, Aged about 59 years -Applicants (By Advocate: Shri Malaya Chand) Versus Delhi Development Authority Through its Vice Chairman, Vikas Sadan, INA, New Delhi -Respondent (By Advocate: Shri Karunesh Tandon with Shri Dhanesh Relan) OA No.430/2011 Brahm Dutt, Retd. UDC, Delhi Development Authority, SED-IV, Sarita Vihar, Aged about 64 years, New Delhi. -Applicant (By Advocate: Shri Malaya Chand) Versus Delhi Development Authority Through its Vice Chairman, Vikas Sadan, INA, New Delhi -Respondent (By Advocate: Shri Karunesh Tandon with Shri Dhanesh Relan) OA No.431/2011 1. Hari Shankar, Retd. UDC, R/o C-163 A, Hari Nagar, Clock Tower, New Delhi Last worked in: Delhi Development Authority, Horticulture Division-3, Janakpuri, Aged about 60 years, New Delhi. 2. Pratap Chand, S/o late Sh. Saligram, Asst. LM/E-2, Barrack No.6, Vikas Kuter, New Delhi-2. -Applicants (By Advocate: Shri Malaya Chand) Versus Delhi Development Authority Through its Vice Chairman, Vikas Sadan, INA, New Delhi -Respondent (By Advocate: Shri Karunesh Tandon with Shri Dhanesh Relan) O R D E R Mr. M.L. Chauhan, Member (J):
By way of this common order, we propose to dispose of all these OAs, as similar question of law is involved.
2. The question, which requires our consideration is whether the persons who are appointed as class IV employees (guard/mali/beldar) in the Department were subsequently appointed/promoted as LDC, their appointment/promotion to the posts of LDC has to be treated as direct recruitment or the promotion for the purpose of granting the benefit of second ACP under the Assured Career Progression (ACP) Scheme?
3. It may be stated that in OA-472/2010 this Tribunal vide order dated 22.07.2010 allowed the OA without examining the core issue whether such appointment/promotion has to be treated as promotion for the purpose of ACP or the same has to be treated as direct recruitment for the purpose of extending the benefit under the ACP Scheme. It may also be stated that the judgment of this Tribunal was challenged before the High Court of Delhi by filing Writ Petition (Civil) No.7688/2010 and the High Court vide order dated 04.04.2011 set aside the judgment of this Tribunal and remanded the matter for fresh adjudication with respect to the point in issue and decide the same with reference to the pleadings and annexures. That is how this OA has been listed for hearing.
4. Insofar as other two OAs are concerned, applicants therein are also group D employees, seeking the same benefit on the basis of the order of this Tribunal in OA-472/2010, which decision has already been set aside by the High Court. As such, applicants cannot draw any assistance from the said judgment of this Tribunal. In any case the core issue to be decided by this Tribunal, as formulated above, is the same.
5. In order to decide the aforesaid issue, the facts, as mentioned in OA-472/2010 along with the statutory provisions, may be noticed. The applicants initially joined as work-charged group D employees and were subsequently appointed as LDC and then promoted as UDC. The grievance projected by the applicants in the said OA was that their appointment as LDC cannot be treated as promotion and has to be treated as direct recruitment and since they have been promoted as UDC and have earned only one promotion during their entire service career, as such they are entitled to the second ACP in terms of the ACP Scheme. However, the stand taken by the respondents was that the applicants were promoted as LDC from group D post and were further granted second promotion as UDC, as such they are not entitled to second ACP. For that purpose, respondents have placed reliance on the provisions of the Promotion Rule for the post of LDC, as prevalent in the year 1979-1980, which was in the following terms:
a. Matriculation/High School/Higher Secondary with 1st Division or graduate with second division.
b. In case of the SC/ST Matriculate/High School/High Secondary with second division or Graduate with 3rd division.
6. It has further been stated that the ratio of filling up of the vacancies of LDC was 75% by direct recruitment from open market, 15% by promotion from group D employees through departmental test and 10% by promotion from class IV on seniority basis. As can be seen from the stand taken by the respondents in the reply-affidavit it is clear that the applicants have passed the matriculation/higher secondary examination in third division. The respondents have also placed on record copy of the requisition as Annexure B. It is further stated that the applicants applied for the said post as a departmental candidates under 15% test quota for promotion and they could not have competed as a direct recruit candidate as they were not possessing first division certificate. The respondents have placed on record copy of the marks-sheets in respect of the applicants (Annexure C colly.) in order to show that they have passed matriculation/higher secondary examination in third division and not in first division, thus could not have been selected against direct recruitment quota for want of educational qualification and they were rightly considered under 15% promotion quota meant for departmental candidates.
7. Similarly, regarding applicants in OA-431/2011 Hari Shankar and Pratap Chand, it has been stated that they have passed the high school examination in second division, inter second division and B.A. in 3rd division, thus were not eligible to compete as direct recruits for the purpose of appointment to the post of LDC. To the same effect is the averments made in respect of applicant Brahm Dutt in OA-430/2011 and it has been categorically stated that the applicants were promoted as LDC against 15% promotion quota meant for departmental candidates.
8. We have heard learned counsel of the parties and gone through the material placed on record. From the material placed on record it is evident that the applicants were promoted to the posts of LDC under the 15% departmental promotion quota and they could not have been treated as direct recruits as they did not fulfill the essential educational qualification, as stipulated in the recruitment rules for the purpose of their selection to the post of LDC. Thus, we see no infirmity in the action of the respondents whereby the promotion of the applicant to the post of LDC was treated as promotion and not as direct recruitment.
9. Further the DoP&T has also issued a clarificatory Office Memorandum dated 10.02.200o, which stipulates that the appointment of Group D employees as LDC on the basis of the limited departmental competitive examination has to be counted as promotion for the purpose of ACP.
10. At this stage, it will be useful to quote item No.8 of the aforesaid clarificatory Office Memorandum, which thus reads:
8. Appointment on the basis of limited departmental examination by which an employee joined a new service should be treated as promotion or not. For example, in case of Group D employees appointed as LDCs or Grade D Stenographers appointed from amongst LDCs should be treated as direct recruits or not in the respective higher grades. If the relevant Recruitment Rules provide for filling up of vacancies of Stenographers by direct recruitment, induction of LDCs to the aforesaid grade through Limited Departmental Competitive Examination may be treated as direct recruitment for the purpose of benefit under ACPS. However, in such cases service rendered as a lower pay scale shall not be counted for the purpose of benefit under ACPS. The case of Grade D employees who become LDCs on the basis of departmental examination stand on different footing. In their case, relevant Recruitment Rules prescribe a promotion quota to be filled up on the basis of departmental examination. Therefore, such appointments shall be counted as promotion for the purpose of ACPS. In such situations, past regular service shall also be counted for further benefits, if any, under the Scheme. (Emphasis Supplied)
11. The aforesaid clarification issued by the DoP&T is squarely applicable in the facts and circumstances of this case. In this case the applicants, who were Group D employee, were appointed on the basis of the limited departmental competitive examination in terms of the recruitment rules against 15% promotion quota from group D employees on the basis of the departmental examination. Thus, such appointment to the post of LDC has to be counted for the purpose of ACP.
12. In the result, for the foregoing reasons, OAs are found bereft of merit, which are accordingly dismissed without any order as to the costs.
13. Let a copy of this order be kept in each case.
(Manjulika Gautam) (M.L. Chauhan) Member (A) Member (J) San.