Central Administrative Tribunal - Delhi
Budh Prakash vs Dtc on 10 October, 2012
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.967/2012 Order reserved on 4th October, 2012 Order pronounced on 10th October, 2012 Honble Shri Sudhir Kumar, Member (A) Honble Shri A.K. Bhardwaj, Member (J) Budh Prakash s/o Shri Hira Lal r/o C-262, LIG Flat, East of Loni Road Shahdara, Delhi-93 .. Applicant (By Advocate: Shri Ravindra S Garia) Versus DTC Its CMD Delhi Transport Corporation DTC HQ IP Estate, New Delhi-2 ..Respondent (By Advocate: Shri J S Bhasin) O R D E R
Shri A.K. Bhardwaj:
For foiling the attempt to robbery in the DTC bus in which he was deployed as Conductor on 8.9.1998, the applicant was granted cash reward / advance increment. Remaining dissatisfied, he filed writ petition before the Honble High Court claiming out of turn promotion with effect from the date of promotions of Ram Mehar Singh and Satish Tyagi, Drivers. Honble Single Judge allowed the said writ petition filed by the applicant and directed the Corporation to grant him out of turn promotion to the post of ATI with effect from the date of incident. Said order was upheld by the Honble Division Bench. Thus the applicant as well as the concerned Driver were given out of turn promotion w.e.f. 9.9.1998 by the DTC Board vide its Resolution No.62/2011 in special circumstances. Since the promotion of the applicant as ATI given w.e.f. 12.5.2005 was antedated to 9.9.1998, he became entitled for being considered for promotion to the post of Traffic Inspector and was considered by the DPC held during September-October 2011 for such promotion. Being found fit for such promotion, he was promoted as TI w.e.f. 28.11.2011. Now he has filed the present original application seeking promotion as Traffic Supervisor.
2. Learned counsel appearing for the applicant contended that since the employees promoted as ATI w.e.f. 4.6.1999 got promotion as Traffic Supervisor w.e.f. 10.10.2011, he should also be considered for such promotion.
3. Shri J S Bhasin, learned counsel appearing for the respondents submitted that in terms of memorandum of settlement dated 22.5.1979, the candidates who complete three years service in the next lower category on the date of review and who fulfill the qualification for the higher post shall be considered eligible for the next higher post and since the applicant got promotion as TI only w.e.f. 28.11.2011, he does not fulfill such eligibility condition. Paragarph 3 of said memorandum of settlement reads as under:-
3. Eligibility: All candidates who complete 3 years service in the next lower category (s) on the date of review and who fulfil the qualification for the higher post, shall be considered eligible for promotion to the next higher post. However, all benefits established procedures, relaxation in educational/technical qualifications and experience etc. available to the employees as on the date of signing this agreement shall remain in tact provided the same are not inconsistent with the terms of this agreement.
4. We have heard the learned counsel appearing for the parties and perused the material placed on record.
5. As has been held by the Honble Supreme Court in the case of R. Prabhadevi v. Union of India & others, 1998 SCC (L&S) 475, which judgment has bee circulated by the Ministry of Personnel, Public Grievances and Pension to different Departments on 22.5.1998, seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfills the eligibility condition prescribed by the relevant rules. A person must be eligible for promotion having regard to the qualifications prescribed for the post before he could be considered for promotion. Seniority cannot be substituted for eligibility nor can it override in the matter of promotion to the next higher post. The said view was followed by the Cuttack Bench of this Tribunal in Sri R.K. Satapathy v. Union of India & others (OA-293/2009 with other connected matters) decided on 8.12.2010. The relevant excerpt of the said order passed by this reads as under:-
The Honble Supreme Court in A.P. State Electricity Board and others v. R.Parthasarathi and others, 1998 SCC (L&S) 1195, held as follows:
3. It appears to us that it has not been indicated in the service regulation that such experience of ten years must be in the service of the State Electricity Board of Andhra Pradesh. In our view, if an employee of the Andhra Pradesh Electricity Board has obtained total experience of ten years by serving partly in the State Government and partly in the Andhra Pradesh State Electricity Board, such employee fulfils the criterion of eligibility for being considered for promotion to the said post of Assistant Executive Engineer. It may be indicated that there is no dispute to the fact that when an employee is permanently absorbed in the service of the A.P.State Electricity Board, his seniority will be fixed below junior Assistant Engineers already working in the Electricity Board. Such inter se seniority will be a relevant factor when a number of employees come in the zone of consideration on the basis of ten years experience for being considered for promotion to the post of Assistant Executive Engineer. Mere seniority in the cadre will not enable an employee to be considered for such promotion if he lacks experience of ten years as indicated. The High Court, in our view, has misread the said Regulation 14 by taking into consideration clause (h) of the conditions of absorption in the service of the State Electricity Board. Such clause (h) has nothing to do with the question of promotion under Regulation 14 of the Service Regulation Act. In the aforesaid circumstances, the impugned order of the Division Bench of the High Court cannot be sustained and the same is set aside. In the light of the above judgments of the Honble Supreme Court, we have to consider whether the verdict in Leelamma Jacobs case (supra) is applicable to the case in hand or not. That was a case where both the Tribunal as well as the Honble Apex Court considered the question of seniority of the officials in Grade II who had earned promotion under the statutory rules on the basis of departmental examination in 1981 and their claim for promotion to Grade III under the BCR Scheme introduced by the P & T Department, Telecommunication Branch, with effect from the date their juniors in Grade I were promoted to Grade III. Promotion of the juniors of the Respondent-officials on the basis of their having completed the requisite period of service prescribed under the BCR Scheme over the head of their seniors, thereby obliterating the promotions earned by the seniors under the statutory rules, was held unsustainable by the Tribunal as well as the Honble Supreme Court and thus was the reason for interference by the Tribunal as well as Honble Apex Court, whereas the applicants herein claim that since the 4th Respondent being junior is getting higher pay, their pay should be stepped up at par with that of the 4th Respondent. In this connection, we may add that an employee may receive higher pay on various reasons, such as, due to counting his previous service in other Department or advance increments, etc., but that by itself cannot be a reason for counting his seniority in the Department as a whole. The TBOP and BCR Schemes stipulate that seniority position of the employees will not change even if any employee is given the benefit under the Scheme. Viewed from this, extension of benefit under the TBOP and BCR Schemes in favour of an incumbent is purely personal without having regard to the principle of seniority. However, we have gone through the decisions cited by the learned counsel for the applicants and found that in none of the decisions it has been held that the senior officials in the basic grade of PA have a right to get his pay stepped up at par with that of his junior officials in the basic grade with effect from the date of placement of the junior officials in the higher pay scale under the TBOP or BCR Scheme, as the case may be. In the instant case, the 4th Respondent on his redeployment as LDC in the S.B.C.O., Postal Department, was entitled to get his pay fixed at a higher stage in the time scale than that of the applicants, although he was placed below the applicants in the seniority list of the cadre. As per the decisions of the Honble Supreme Court in Dwijen Chandra Sarkars case and the order passed by this Tribunal, the 4th Respondent was granted the benefits under the TBOP and BCR Schemes before such benefits could be granted to the applicants and this cannot be held a basis for stepping up pay of the applicants at par with that of the 4th Respondent. The ratio of the decisions cited by the applicants having emerged from different and distinct facts and circumstances unlike the present O.As., in our considered view, will be of no help to the applicants.
11. Having regard to what has been discussed above, we would answer the points in issue in precise terms that (1) grant of financial benefit/upgradation and/or placement under the TBOP/BCR Scheme in favour of a junior having completed the requisite years of service cannot form the basis for extending such benefits in favour of an employee who is senior but has not completed the period of service fixed under the said Schemes as such conferment is purely personal and is not dictated by the principle of seniority, and (2) in effect the applicants though senior have no right to get their pay stepped at par with that of the private Respondent No.4 and others who are their juniors.
6. In view of the aforementioned judgment of the Honble Supreme Court, which has been followed by this Tribunal, since the applicant has not yet completed three years service from the date of his promotion as TI (eligibility condition) merely on the basis of his seniority and promotion of his juniors as Traffic Supervisor, he would not be entitled to promotion to the said post. The applicant may work out his right for promotion on completing required length of service as TI. It is not his case before us that his promotion as T.I. should be antedated to the dates of promotion of his juniors (T.I.s). In the present OA he has sought promotion as T.S. for which he is ineligible.
7. OA is devoid of merits and is accordingly dismissed. No costs.
( A.K. Bhardwaj ) ( Sudhir Kumar ) Member (J) Member (A) /sunil/