Central Administrative Tribunal - Delhi
Bangali Babu Agarwal vs Mcd & Ors. Through on 24 April, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA No. 2449/2012
MA No.2033/2012
Reserved on: 24.10.2013
Pronounced on: 24.04.2014
Honble Shri Sudhir Kumar, Member (A)
Honble Shri Raj Vir Sharma, Member (J)
1. Bangali Babu Agarwal,
S/o Shri Late Shri Ganga Charan Agarwal
18, Rail Vihar, Pitampura, Delhi-110034.
2. Rahul Saraswat,
S/o Shri Shiv Chanarn Sharma
65-B, Pocket-B, Dilshad Garden,
Delhi-110095. Applicants.
(By Advocate: Shri M.K.Bhardwaj)
Versus
MCD & Ors. through
1. The Director, Local Bodies,
Delhi Secretariat,
IP Estate, New Delhi.
2. The Commissioner,
North Delhi Municipal Corporation,
Civic Centre, New Delhi.
3. The Commissioner,
South Delhi Municipal Corporation,
Civic Centre, New Delhi.
4. The Commissioner,
East Delhi Municipal Corporation,
Udyog Bhawan, Patparganj,
New Delhi.
5. The Director (Personnel)
North Delhi Municipal Corporation
22nd Civic Centre, Minto Road,
New Delhi-110002.
6. Director of Personnel
South Delhi Municipal Corporation
22nd Civic Centre, Minto Road,
New Delhi.
7. Shri N.C.Meena S/o M.L.Meena
R/o 1225-A, Gali No.1,
Bhola Nath Nagar, Shahdra, Delhi
Represented through Commissioner,
South Delhi Municipal Corporation. Respondents.
(By Advocate: Shri Arun Bhardwaj for R-1 to 6 and
Shri Rajeev Sharma for R-7)
ORDER
Shri Sudhir Kumar, Member (A):
MA 2033/2012 This MA, filed by the two applicants, praying for permission for joining together in filing this OA, is allowed.
OA 2449/2012APPLICANTS CASE & GROUNDS
2. The two applicants of this OA are Executive Engineers (EE, for short) with the (now trifurcated) Municipal Corporation of Delhi (MCD, for short), who were initially appointed as direct recruit Assistant Engineers (AEs, for short) when the Honble Delhi High Court had, through its order dated 30.05.1997 in the case of S.A. Ansari & Others. vs. M.C.D. & Others, ordered the then unified MCD to fill up the vacant posts falling in the quota for direct recruit AEs within a period of six months from that date. The Recruitment Rules (RRs, for short) to the post of AE (Civil), as approved by the then unified MCD, vide its Resolution No.97 dated 04.05.1970, and notified in the Delhi Gazette Notification vide Notification dated 26.06.1970, had provided for appointment of AEs of MCD 50% by way of promotion, and 50% by way of Direct Recruitment, in a 1:1 ratio, the channel for promotion being from the two feeder cadres of (a) Junior Engineers (Civil)/Overseers with a Degree in Civil Engineering, with two years experience in the grade, and (b) those with a Diploma in Engineering, with seven years experience in the grade of JEs/Oversears.
3. Within around 8 to 9 years of their entering their services, vide office order dated 24.11.2006, the applicants were promoted to the posts of E.Es. in the unified MCD, on look after charge basis, which was done in compliance of the interim orders dated 07.11.2006 of the Honble Delhi High Court in WP (C) No.4123-26/2005 in the case of Sandeep Malhotra and Others vs. MCD & Others. That bunch of cases was later transferred to this Tribunal by the orders of the Honble High Court dated 27.01.2009, numbered in the Tribunal as TA No.327/2009 and decided through order dated 24.05.2011, which was a common order passed in TA No.243/2009 Jagdish Prasad vs. MCD & Ors. with TA No.327/2009 Sandeep Malhotra & 3 Ors. vs. MCD & Ors, with TA No.395/2009 Ramesh Kumar & 3 Ors vs. MCD & Ors. The common judgment & order in these three TAs, was once again carried before the Honble High Court in WP(C) No.6568/2011 Jagdish Prasad vs. MCD & Ors. with WP(C) No.293/2012Ramesh Kumar & Ors. Vs. M.C.D. & Ors. along with WP (C) No.8724/2011 Sandeep Malhotra & Ors. vs. MCD & Ors. It was argued before us that since there had been no subsequent final orders passed by the Honble High Court, its earlier interim orders dated 07.11.2006 in Sandeep Malhotra and Others vs. MCD & Others (supra), are still operative. However, it was not truthfully pointed out before us that even before the present O.A. had been argued & had been reserved on 24.10.2013, the Honble High Court has already disposed off the three connected WP (C) Nos. 6568/2011 Jagdish Prasad vs. MCD & Ors., WP(C) No.293/2012 Ramesh Kumar & Ors. Vs. M.C.D. & Ors. and WP (C) No.8724/2011 Sandeep Malhotra & Ors. vs. MCD & Ors. through its final orders dated 05.08.2013, and had set aside the order dated 24.05.2011, and remanded those cases back to this Tribunal for a fresh adjudication, and that these three T.As had already been listed before this very Bench on 10.10.2013, without either side pointing out the connection with those three T.As. during the detailed arguments in the present case on 24.10.2013.
4. Therefore, the applicants had submitted in their OA and later during the arguments advanced on their behalf that the Private Respondent R-7 was promoted to the cadre of AE in 1998 only in pursuance of the orders of the Honble High Court in the case of S.A. Ansari and Others (supra), and thereafter he was further promoted to the post of EE on look after charge basis in 2007 in pursuance of the interim orders of the Honble Delhi High Court dated 07.11.2006 in the WP(C) No.4123-26/2005 in the case of Sandeep Malhotra and Others vs. MCD & Others (supra). The erstwhile MCD used to follow the system of the charge of higher duties being assigned to incumbents first on look after charge basis, then on adhoc promotion basis, and then finally to be followed by substantive promotion. The Applicant No.1 before us has claimed that he was given adhoc promotion to the post of EE in 2008. However, the Applicant No.2 could not be given such adhoc promotion at that point of time, as he was under a cloud, which allegedly was the position in respect of the Private Respondent R-7 also. The applicants have produced a copy of the Minutes of the Meeting held for this purpose on 05.12.2008 through Annexure A-3 at pages 81 to 85 of the Paper Book.
5. The applicants have alleged that the Private Respondent R-7 thereafter filed OA No.2605/2009 before this Tribunal, without giving the complete facts and circumstances of the case, and without making them as party respondents in that OA, and even the official respondents also did not bring the complete facts and circumstances of the case before this Tribunal, which resulted in passing of final orders dated 28.09.2010 by a Coordinate Bench, which was produced as Annexure A-1 at pages 65 to 76 of the Paper-Book of this OA.
6. The applicants have further submitted that thereafter, in some other parallel proceedings, the Honble High Court had passed orders dated 22.11.2005 in WP(C) No.5838/1998 in the case of O.P.Mittal vs. MCD., and on the basis of the directions contained in that order, a review DPC was held on 24.04.2006. Thereafter an order came to be passed, promoting 50 persons as AE (Civil) on regular basis in the pay scale of Rs. 2000-3500 (pre-revised), i.e. of Rs. 6500-10500/-(revised), with effect from the dates mentioned against their names, through the office order dated 08.05.2006 (Annexure A-4). The applicants have alleged that the name of the Private Respondent R-7 did not figure in that list of 50 candidates, since he was a promotee AE of 1998, and those orders dated 08.05.2006, at Annexure A-4, had covered only the people up-to the year 1997, flowing from the Honble High Courts directions in O.P.Mittals case (supra).
7. It has been further submitted by the applicants that later on, through office order dated 15.12.2008, issued in compliance of the Honble High Courts interim directions dated 07.11.2006 in the case of Sandeep Malhotra and Others vs. MCD & Others (supra), all the vacant posts in the cadre of EEs were filled, and promotions to the SC/ST candidates were also given, as per the reservation rule, and the candidates of SC/ST categories were thereby duly represented in the cadre of EEs.
8. The applicants have submitted that when the Private Respondent R-7 filed his OA No.2605/2009 before this Tribunal, it was not brought to the notice of this Tribunal that these decisions had been taken in the past as per the orders of the Honble High Court, and that promotions had thereafter been made as per the rules, and as per the directions of the Honble High Court of Delhi. The applicants have submitted that no review of such promotions could have been made since those promotions themselves had been made under the directions of the Honble High Court. The applicants have also further submitted that it was not brought to the notice of this Tribunal by the Private Respondent R-7 in his OA No.2605/2009 that in view of the decision of the Honble Apex Court in the case of M.Nagraj & Others vs. Union of India & Others (2006) 8 SCC 212, no benefit of promotion could have been claimed by him on the basis of reservation, and that the applicant in OA No.2605/2009, the Private Respondent R-7 in the present OA, had no right to claim for seeking directions of this Tribunal for change in the zone of consideration for promotions, only because he belongs to ST category.
9. The applicants have sought shelter behind the DoP&Ts instructions issued through OM dated 10.04.1989 which state that while holding a review DPC, the zone of consideration cannot be changed, and even the gradings, as given by the earlier original DPC, cannot be altered, which aspect would have been considered by the Coordinate Bench of this Tribunal, if either the official respondents, or the Private Respondent R-7/applicant therein in OA No. 2605/2009, had brought this fact to the notice of this Tribunal. The applicants thereafter actually assailed the very order passed by the Coordinate Bench on 28.09.2010 in the said OA No. 2605/2009 N.C.Meena vs. MCD and Others, praying that this Bench should differ with the findings of the earlier Coordinate Bench of this Tribunal, and submitted that if the official respondents are now allowed to hold a review DPC, in the guise of the implementation of the order passed on 28.09.2010 in the OA No.2609/2009, filed by the Private Respondent R-7, it would run contrary to the law, as laid down by the Honble Apex Court in the case of M.Nagaraj (supra), and a catena of other cases. Citing different case laws, and the Constitution (Seventy Seventh) Amendment Act, 1995, the applicants had assailed the very policy of reservation in promotions being sought to be applied. They had placed reliance on the following case laws:
1) Indra Sawhney vs. Union of India: AIR 1993 SC 477: (1992) Supp(3) SCC 217.
2) R.K.Sabharwal vs. State of Punjab, 1995 (2) SCC 745: AIR 1995 SC 1371.
3) Union of India vs. Virpal Singh Chauhan 1995 (6) SCC 684
4) (Ajit Singh-I) Ajit Singh Januja vs. State of Punjab, 1996 (2) SCC 715.
5) Ajit Singh-II vs. State of Punjab (1999) 7 SCC 209
10. The applicants have explained that since they are aggrieved by the order passed by the Coordinate Bench of this Tribunal, in terms of the law as laid down by the Honble Apex Court in the case of K. Ajit Babu & Others vs. Union of India & Others (1997) 6 SCC 473, in order to seek remedy against an order affecting them which had been passed behind their backs, the only remedy available to them was by way of filing a fresh OA, which they have done by filing the present O.A.
11. Thereafter, relying upon the aforesaid decisions of the Honble Apex Court, the applicants have pleaded that the reservation in the matter of promotion could be applied by the State only after conducting an exercise of collecting quantifiable data, showing backwardness of the class concerned, and inadequacy of the representation of that class in public employment, since otherwise the benefit in the matter of reservation would result in 100% occupation of the seats in the higher cadre by reserved categories, due to their separate zone of consideration and consequential seniority. The applicants have submitted that they had, through Annexure A-7 dated 14.06.2012, made a detailed representation to the official respondents, praying for not holding any review DPC, and not to implement the decision of this Tribunal dated 28.09.2010 in OA 2605/2009 in the case of N.C.Meena (supra), as it was per incuriam, for want of proper consideration of the law of the land, but the respondents had not heeded to their request so far. They had further submitted that Honble Apex Courts ratio in the case of M.Nagaraj (supra) has since been reiterated by the Honble Apex Court in (i) Anil Chandra vs. Radha Krishan Gaur, (ii) Bimlesh Tanwer vs. State of Haryana (iii) AIIMS Students Union vs. AIIMS (iv) Suraj Bhan Meena and Another vs. State of Rajasthan (2011) 1 SCC 467, apart from the principles emanating from the cases already cited above. The applicants had further stated that a Single Bench of the Honble Punjab and Haryana High Court had also, in the matter of Pritpal Singh vs. State of Punjab and Others {CWP No.1960 of 2008}, decided on 09.09.2009, held that inter se seniority among the general category candidates and reserved category candidates would continue to be determined in view of the judgment in Ajit Singh Januja & Others (Ajit Singh-I) vs. State of Punjab & Other (1996) 2 SCC 715:AIR 1996 SC 1189.
12. It was further submitted that even this Tribunal had also considered the same issue while deciding another OA No.2211/2008, holding that the SC/ST cannot be entitled for accelerated seniority till such time when the pre-conditions necessary for operation of Article 16 (4A) of the Constitution have been complied with.
13. Therefore, the applicants have submitted that the decision of this Tribunal in OA 2605/2009 dated 28.09.2010 in N.C.Meena (supra) obtained by the Private Respondent R-7, without making them as parties respondent, should not be acted upon by the official respondents, and the respondents cannot be allowed to hold the review DPC in respect of the original DPC, which was held in 2008, in which all the eligible candidates as on that date were promoted, as per the reservations rules and OMs, just because the Private Respondent No.R-7, being junior, wants to gain a march over them, on account of his being a SC/ST candidate.
14. It was further submitted that in the State of Delhi, neither have any castes been identified as Scheduled Castes, nor are there any identified Scheduled Tribes present, and nor any attempt or efforts have been made to identify the class or classes of posts for which the reservation has to be provided in promotions, nor any exercise has been done to quantify the extent of any such required reservations in promotions. The applicants further submitted that adequate reservation does not mean proportional representation, and without any such proper quantification, the structure of equality of opportunity in Article 16 would collapse.
15. The applicants have further submitted that though the reservation may be justified as an exception, but for discharging the burden of providing justification that the quantum of reservation should not be excessive or injurious to the society, the aspect which has to be taken into account is as to whether the character and quantum of such reservation would stall or accelerate the administration. They had, therefore, prayed that the official respondents ought to undertake to complete the exercise of collection of quantifiable data, and comply with the requirements of the numerous judgments of the Honble Apex Court on this aspect, before resorting to providing for the reservations in promotions, and advancement of individuals in the seniority list, when they have not yet applied their minds even to ascertain as to whether the pre-conditions for operation of Article 16 (4A) of the Constitution have been complied with.
16. They had submitted that in the case of State of UP vs. Brij Bhushan Sharma & Others, decided by the Allahabad High Court on 04.01.2011, reservation in promotions had been quashed, and, consequently, all the seniority lists based on such reservation have been declared unjustified, and the same view was taken by the Honble Apex Court also in the case of UP Power Corporation Limited vs. Rajesh Kumar & Ors. C.A.No.2608/2011 and related cases, dated 27.04.2012 : 2012 (4) SCALE 687.
17. The applicants have further taken the ground that when at the time of conducting the original DPC in 2008, the zone of consideration was only upto the seniority No.320, and the Private Respondent R-7 was at seniority no.431, and as per the DoP&T OM dated 10.04.1999, while conducting the review DPC, zone of consideration cannot be changed than what it was at the time of the original DPC, which aspect was not brought to the notice of this Tribunal when the orders were passed on 28.09.2010 in OA 2605/2009 in N.C. Meena (supra), and since the Tribunal had, even thereafter, only directed for consideration of the case of the applicant therein/Private Respondent R-7 before us, the official respondents were required to take into account the said directions in the correct spirit, instead of initiating the process for holding review DPC, by totally ignoring the law of the land. The applicants have also submitted that they were totally in the dark about the order of this Tribunal dated 28.09.2010 in OA No.2605/2009 having been passed, and had come to know about the said decision only in April 2010, when, through letter dated 11.04.2012 (Annexure A-2), the process for conducting of the review DPC was initiated.
18. They had also submitted that against the orders of the Honble High Court passed on 23.04.2009 in WP(C) No.356/2008, Union of India and Others vs. Gopal Meena and Others, the Union of India had since preferred a Special Leave Petition (SLP) before the Honble Apex Court, challenging the said judgment, and hence that judgment of the Honble High Court could not have been said to have attained finality, and in the said case of Gopal Meena (supra), the then unified MCD was not a party, and no OM has been issued by the DoP&T regarding the date of applicability of that judgment of the Honble High Court, as also no amendment of the rules also has been made. Therefore, it was submitted that the judgment of the Honble High Court in Gopal Meena (supra) could not have been applied retrospectively, and in view of the decisions of the Honble Apex Court, the applicability of a separate zone of consideration for SC/ST reservations in the matter of promotion cannot be considered, without first complying with the conditions, as laid down by the Honble Apex Court in the case of M.Nagaraj (supra).
19. Reiterating that the Private Respondent No.R-7 had obtained the orders in his OA No.2605/2009 behind their back, the applicants had sought shelter behind the Honble Apex Courts judgment in State of Bihar vs. Kameshwar Prasad Singh, (2000) 9 SCC 94, in which the Honble Apex Court had held that in the absence of the persons likely to be affected by the relief, as prayed for, the case should normally have been dismissed, unless there existed specific reasons for non-impleadment of the likely to be affected persons.
20. Another ground taken by the applicants was that while holding the review DPC in respect of a particular year, the law as prevailing as at that time (of the original DPC) will only be the criteria for conducting the review, and the subsequent developments/ laws/rules should not be taken into account, for benefiting any individual, and cannot be made the basis for a review DPC, which was being tried to be done by the official respondents. They had, therefore, submitted that the case concerned the erstwhile unified MCD in particular, and it is trite that the position of vacancies, as was considered by the original DPC, held in 2008 by the erstwhile unified MCD, should alone be considered, in any review DPC, if and when it is held.
21. Re-wording the same submissions, as described in detail above, the applicants had raised in their OA the grounds from A to Z and then AA, and had expressed their grievance against the judgment of the Coordinate Bench dated 28.09.2010 in OA No. 2605/2009 N.C.Meena (supra), and had submitted that the subsequent decision dated 22.12.2010 by the Full Bench of this Tribunal in OA 2211/2008 ought to have been applied instead. In the result, the applicants had prayed for the following relief:
(b) To declare that order dated 28.09.2010 passed by the Honble Tribunal in OA No.2605/2009 is not binding being contrary to law laid down by the Honble Supreme Court in the case of M.Nagraj (supra) vs. Union of UOI or set aside the same being contrary to law laid down in the said case.
22. When the case was listed before the Bench on 26.07.2012 for admission for the purpose of issuance of notices, after issuing the notices to the respondents returnable on 09.08.2012, interim relief as prayed for by the applicants had also been granted, and it was directed that the Respondents shall not hold review DPC as proposed in the impugned order till the next date of hearing. This Interim Relief was, thereafter, continued on the subsequent dates of hearing also.
MAINTAINABILITY ISSUE
23. After issuance of the notices in the OA, the Private respondent No.R-7 came before the Tribunal by filing of MA 2412/2012, questioning the maintainability of this OA itself, which MA was decided by another Coordinate Bench on 18.10.2012, through a speaking order, after having taken note of the Honble Apex Courts judgment in K. Ajit Babu (supra). Thereafter, the case continued with the filing of the counter reply on behalf of the MCD on 04.09.2012, and another counter reply to the OA filed by the Private Respondent R-7 on 11.04.2013, and the rejoinder thereafter filed by the applicants on 29.04.2013. Even after the case had been heard in detail, and reserved for orders on 24.10.2013, the learned counsel for the applicants had still filed a further compilation of relied upon case law, and our attention had also been drawn by him to the fact that, in the meanwhile, another Coordinate Bench of this Tribunal had passed two orders on a parallel subject, in OA 2434/2012 on 15.12.2013, and in OA 2029/2013 on 24.12.2013, and we have had the benefit of perusing those orders also.
OFFICIAL RESPONDENTS CASE
24. In their short reply filed on behalf of the official respondents on 04.09.2012, it was submitted that prior to 2009, the Honble High Court had in its order in C.P.No.489/2007 in Writ Petition No.12134/2006 in the case of Anil Tyagi vs. MCD and Others (a copy of which was filed at Annexure R-1), directed the respondents, the then unified MCD, to hold a DPC to the grade of EE (Civil). In obedience thereof, the DPC was held in the month of July/August 2008, for the period 1997 and onwards, on the basis of the then available seniority list dated 15.02.1999, and in pursuance of which, an office order dated 08.09.2008, at Annexure R-2, was issued.
25. It was submitted by the Official Respondents that the Private Respondent R-7 had in his OA 2605/2009 prayed for quashing of the said Office order dated 08.09.2008, (Annexure R-2), in which the above-mentioned order dated 28.09.2010 came to be passed by a coordinate Bench. It was also mentioned that in another OA No.2740/2010 Dalbir Singh vs. MCD & Others, vide order dated 08.04.2010, this Tribunal had directed the MCD to send the proposal to UPSC within four weeks for conducting a review DPC for the post of EE (Civil) for the years 1994 to 1997, which direction had also already been complied with, and the respondent-MCD had already sent the proposal to UPSC on 06.08.2012 for convening the review DPC for the post of EE (Civil).
26. It was submitted that the seniority lists of AE cadre were under dispute, and they were finalized only on 18.07.2011, with the issuance of latest final Seniority List of AE (Civil), in which the names of the applicants figure at Sl.No.421 (General) and 411 (General) respectively, whereas the name of the Private Respondent R-7 figures at Sl.No.337 (ST). It was further submitted that in terms of the directions issued now by this Tribunal, through its order in O.A. 2605/2009 on 28.09.2010, the respondent-MCD was to send a proposal to the UPSC for conducting a review DPC of the original DPC of 2008, fully in compliance with, and on the basis of the guidelines issued by the Central Government/ DoP&T from time to time, and since the names of the applicants of this OA had not figured in the original DPC of 2008, they have no right to raise an objection in respect of the review DPC of the original DPC of 2008, which was now proposed to be held. It was further pointed out that the applicants have in this OA neither challenged the original DPC of 2008, nor do they have any right to challenge the review of the original DPC of 2008, and, therefore, it was prayed that the order of Interim Relief dated 26.07.2012 granted to the applicants at the stage of admission itself may be recalled, and the official respondents may be allowed to hold the review DPC in terms of the directions already issued by this Tribunal earlier on 28.09.2010 in its order in OA 2065/2010 in the case of N.C.Meena (supra).
PRIVATE RESPONDENTS CASE
27. In his counter reply, the Private Respondent R-7 had submitted that the case of Indra Sahwney (supra) was in the context of reservations for the OBCs, and it cannot be applied to the cases of the SC/ST in any manner, which has been specifically provided for in Articles 341 and 342 of the Constitution of India. It was further submitted that the Constitution Bench of the Honble Apex Court had, in the case of E.V.Chinnaiah vs. State of Andhra Pradesh & Ors: 2005 (3) SLR 363, had held as follows:-
The Constitution provides for declaration of certain castes and tribes as Scheduled Castes and Scheduled Tribes in terms of Articles 341 and 342 of the Constitution of India. The object of the said provisions is to provide for grant of protection to the backward class of citizens who are specified in the Scheduled Castes Order and Scheduled Tribes Order having regard to the economic and educationally backwardness wherefrom they suffer. The President of India alone in terms of Article 341(1) of the Constitution of India is authorized to issue an appropriate notification therefore. The Constitution (Scheduled Castes) Order, 1950 made in terms of Article 341(1) is exhaustive.
xxxxxx xxxxxxxx Article 366(24) defines "Scheduled Castes" means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purposes of this Constitution. This would go to show that by virtue of the Notification of the President the Scheduled Castes come into being as one class of persons regardless of members drawn from castes, races or tribes etc. They attain a homogeneous group by virtue of the Presidential Notification.
In Indra Sawhney and Ors. v. Union of India and Ors. 1992 Supp(3) SCC 217 this Court observed at page 725(SCC) that the discussion of creamy layer is confined to other backward classes only and has no relevance in the case of Scheduled Castes and Scheduled Tribes.
In the case of State of Maharashtra v. Milind and Ors. (2001) 1 SCC 4, it was pointed out by the Constitution Bench of this Court at page 15 SCC:- "By virtue of powers vested under Articles 341 and 342 of the Constitution of India, the President is empowered to issue public notification for the first time specifying the castes, races or tribes or part of or groups within castes, races, or tribes which shall, for the purposes of the Constitution be deemed to be Scheduled Castes or Scheduled Tribes in relation to a State or Union Territory, as the case may be. The language and terms of Articles 341 and 342 are identical. What is said in relation to Article 341 mutatis mutandis applies to Article 342. The laudable object of the said articles is to provide additional protection to the members of the Scheduled Castes and Scheduled Tribes having regard to social and educational backwardness from which they have been suffering since a considerable length of time. The words "castes" or "tribes" in the expression "Scheduled Castes" and "Scheduled Tribes" are not used in the ordinary sense of the terms but are used in the sense of the definitions contained in Articles 366(24) and 366(25)."
Thus, the pious object for issuing the Presidential Notification is to afford them special protection having regard to social and educational backwardness. The Presidential Notification under Article 341 of the Constitution as well as the benefits of reservation of appointments or posts which in the opinion of the State, is not adequately represented in the services under the State, is afforded to a class of persons specified in Presidential Notification under Article 341 of the Constitution. The backward class of citizens enshrined in Article 16(4) of the Constitution includes Scheduled Castes and Scheduled Tribes. The whole basis of reservation is to provide additional protection to the members of the Scheduled Castes and Scheduled Tribes as a class of persons who have been suffering since a considerable length of time due to social and educational backwardness.
28. It was further submitted that the case of M.Nagaraj (supra), again decided by a Five Judges Constitution Bench, was also applicable in the case of OBCs only. It was further submitted that the question of reservations in promotions was once again considered by the Honble Apex Court in Para 293 in the judgment in the case of Ashok Kumar Thakur (8) vs. Union of India: (2007) 4 SCC 361: (2007) 5 JT 276; whereby it was clarified that though in M.Nagarajs case (supra), some observations of general nature have been made in so far as the applicability of the principle of reservation in promotions to the SCs/STs was concerned, but that case really did not concern the SCs/STs. Further shelter had been sought behind the ratio in regard to interpretation of Statutes as laid down by the Honble Apex Court in Special Land Acquisition Officer vs. Karigowda & Ors.: (2010) 5 SCC 708, and, in particular, paragraphs 26,30,35 & 36 of that judgment, as well as the law of precedents, as laid down in para 105 of that judgment, as pointed out during the arguments.
29. It was further submitted that the case of the applicants is based on a wrong premise, as even in their representation dated 14.06.2012, and also in the present OA, the applicants have actually concealed the fact that in the latest applicable seniority list dated 18.07.2011, the Private Respondent R-7 is senior to both the applicants, and that the seniority list dated 18.07.2011 is not under challenge in the instant case. It was further submitted that both the applicants do not come in the zone of consideration in view of their seniority position, and, therefore, their OA is not maintainable.
30. It was further submitted that the original DPC of 2007-2008 in July/August 2008 was convened in obedience of the directions of the Honble High Court issued in Writ Petition No.12134/2006, on 22.03.2007, and which direction was in the context of convening the DPC for the years 1997-1998 to 2007-2008. It was submitted that at time of original DPC, one ST officer, named Shri Swaroop Lal Meena, was wrongly considered on each occasion, against the ST vacancies of different years, and since disciplinary cases were pending against him, his case was kept in a sealed cover against the vacancy of each year, and, therefore, the case of the Private Respondent R-7, who was eligible for filling up of that ST vacancy, was not considered by an oversight.
31. It was further submitted that the Tribunals order dated 28.09.2010, which the applicants have tried to assail by placing reliance upon the judgment of Division Bench of the Honble Delhi High Court in Union of India vs. Gopal Meena (supra), delivered on 23.04.2009, and non-compliance of the orders passed on 22.03.2007 and 23.04.2009 in their favour by this Tribunal, would also mean non-compliance of the orders passed by the Honble High Court dated 22.03.2007 in Writ Petition No.12134/2006, in the case of Anil Tyagi (supra), and in the case of Gopal Meena (supra) on 23.04.2009.
32. It was further submitted by the Private Respondent R-7 that the Constitution Bench judgment of the Honble Apex Court in the case of R.K. Sabharwal (supra) had held that the post based roster system should be followed, but it was not implemented by the official respondents, and, in the normal course, as per law, his name could have been considered in the original DPC itself, which is not under challenge in the present OA.
33. It was further submitted that it is not in dispute that the five vacancies against the quota of Scheduled Castes category were available for the years 1997-98 to 2007-08. Inadequate representation of Scheduled Tribes in the present case is also not in dispute. It was further submitted that the case law mentioned by the applicants in the OA, is not applicable in the instant case, because the respondents have neither exceeded the ceiling limit of 50%, nor any orders, as prayed for by the applicants, can be passed, since the applicants have not made the State/Union as a party respondent, because of which the OA itself is not maintainable.
34. In response to Para 4.3 of the OA, it was denied by the Private Respondent R-7 that his case was considered earlier, and that he was not given promotion, as he was under a cloud either at the time of holding of the original DPC, or the date of issuance of the earlier promotion order dated 15.12.2008. He had, therefore, prayed that the OA deserves to be dismissed, with exemplary costs.
APPLICANTS REJOINDER
35. The applicants had filed their rejoinder on 29.04.2013, more or less reiterating their contentions, as already made out in the OA. They had also taken an objection to the interpretation given by the Private Respondent R-7 in his counter reply to the Honble Apex Courts judgments relied upon by them. It was submitted that the benefit sought to be given by the official respondents to the Private Respondent R-7 is the benefit of reservation in promotion, by extending the zone of consideration of the original DPC, by holding a review DPC, just in order to give benefit to him and to other candidates, who were even more junior to him. It was submitted that it cannot be said that merely because the original DPC had not been challenged in this OA, the subsequent action of the respondents for now holding review DPC cannot be objected to by the applicants, since they have challenged in this O.A. the entire action of the official respondents in giving benefit of reservation in promotions, whether it was given in the original DPC, or was to be given in the subsequent review DPC. It was submitted that once the reservation in promotions itself cannot be given, there is no question of calculating the vacancies of SC/ST in giving promotions, by making the same as the basis to plead that there is inadequate representation of the reserved category candidates, while in fact there is inadequate representation of the General category candidates against the promotional posts, as all the top posts are already occupied by the reserved category candidates of SC/ST, who have an excess representation in all levels of the promotional posts.
36. It was further submitted by the applicants that the Division Bench judgment of the Honble High Court dated 23.04.2009 in Union of India & Ors. vs. Gopal Meena & Ors (supra) has not even dealt with the issue of reservation in promotion by taking note of the Honble Apex Courts decision in the M.Nagaraj (supra), and therefore, the said decision of the Honble High Court is per incuriam, and has rightly been challenged before the Honble Apex Court by an S.L.P. being filed by the Union of India, and cannot be treated as a binding precedent. It was further denied that the judgment in Indra Sawhney (supra) had dealt with only OBC reservation, and it was submitted that the case of M.Nagraj (supra) is fully applicable to the facts of the case. It was further submitted that the ratio and doctrine of M.Nagraj (supra) have since been followed by the Honble Apex Court in the subsequent cases of Suraj Bhan Meena (supra) in 2010, and in UP Power Corporation (supra) in 2012. It was further submitted that in the case of Ashok Kumar Thakur (8) (supra), it has been specifically held by the Honble Apex Court that any privilege given to a class should not lead to inefficiency in administration.
37. It was further submitted by the applicants that the Seniority List dated 18.07.2011 had not been concealed, but that the said Seniority List was contrary to the directions of the Honble High Court, and in view of the interim orders/directions of the Honble High Court dated 20.04.2005 and 07.11.2006 in WPC No.4123-26/2005, Sandeep Malhotra (supra), that list was null & void ab-initio. It was further alleged that even the Department had never disclosed their intentions to hold a meeting of 2nd review DPC, which amounted to material concealment and Contempt of Court.
38. Thereafter, the applicants had again reiterated the facts of the case, as already discussed in great detail above, and had reiterated their claim that the applicants were at a higher seniority position than the Private Respondent R-7 in the Seniority List of 2005. It was further submitted that the review DPC, if it is now held, cannot be based upon the Seniority List dated 18.07.2011, as that list was not even in existence when the OA No.2605/2009 filed by the Private Respondent R-7 was decided initially on 28.09.2010, and that if the promotions in the AE grade are made strictly in the ratio of 1:1 from amongst the direct recruits and the promotees, the Private Respondent R-7 would come much below than the applicants.
39. The applicants had then again assailed the action of the respondents in having followed the law of the Honble High Court judgment in the case of Gopal Meena (supra) with regard to the Private Respondent R-7, rather than following the Honble Apex Courts judgment in M.Nagaraj (supra). They had further objected to the ratio in the case of Gopal Meena (supra) being considered to be applicable retrospectively from the year 1991, as his Writ Petition was decided by the Honble High Court only in the year 2009, and an SLP is still pending before the Honble Supreme Court. It was further submitted that the Writ Petition No. 12134/2006, Anil Tyagi vs. MCD & Ors (supra), had been filed by the General Category candidates on a different issue altogether, and since there was neither any provision of having a separate zone of consideration for SC/ST cases, nor reservation in promotion can be made available, as held by the Honble Apex Court, therefore, Private Respondent R-7 is not justified in claiming promotion by way of reservation, that too by asking for holding a review DPC.
40. It was further submitted that the Private Respondent R-7 was not even in the zone of consideration for DPC of July/August 2008, because the zone of consideration had at that time extended only up to the seniority level No.320. Once again reiterating their stand taken in the rejoinder that the decision of the Honble High Court in the case Gopal Meena (supra) was per incuriam, the applicants had relied upon the Honble Apex Courts ratio in the case of Sundarjas Kanyalal Bhathija and Others vs. The Collector, Thane, Maharashtra and Others (1989) 3 SCC 396, wherein the Honble Apex Court had ruled that it is the duty of the judges of the superior Courts and Tribunals to make the law more practicable and effective as a guide to behaviour, and that in the case of Bharat Petroleum Corporation Ltd. Vs. Mumbai Shramik Sangla & Others (2001) 4 SCC 448, it had been held that the judgment of the Constitution Bench binds a Bench of two learned Judges, and judicial discipline obliges them to follow it, regardless of their doubts, if any, about its correctness. The applicants had also cited the following cases in support of their above contentions:
1) Assistant Collector of Central Excise, Chandan Nagar, West Bengal vs. Dunlop Indian Ltd. & Others 1985 (1) SCC 260.
2) Cassell & Company Ltd. vs. Broome, 1972 AC 1027.
3) Director of Settlement, AP & Others vs. M.R. Apparao & Anr. (2002) 4 SCC 638.
4) Ballabhdas Mathurdas Lakhani and Others vs. Municipal Committee, Malkapur: (1970) 2 SCC 267
5) Chandra Prakash & Others vs. State of UP. & Anr. (2002) 4 SCC 234.
41. It was, therefore, submitted by the applicants that since the Honble Apex Court has held that the reservation cannot be made applicable in the matter of promotion, the roster point required for giving benefit of reservation in promotions has become irrelevant. It was further reiterated that the seniority list dated 18.07.2011 could not be considered to be operational, since in view of the judgment and orders of the Honble High Court dated 16.01.2012 in Writ Petition No.293/2012, where Private Respondent R-7 was also a party, the official respondents had been directed to prepare a fresh seniority list, before making promotions for the post of EE in the ratio of 1:1. Their further submission was only that as per the orders of the Honble High Court, Private Respondent R-7 had reached far below position in seniority than the applicants, and respondents have wrongly assumed that the seniority list dated 18.07.2011 is operational.
42. Once again, the facts of the case had been reiterated to submit that firstly the judgment in the case of Gopal Meena (supra) of the Honble High Court cannot be applied in view of the ratio in M.Nagaraj (supra), and, secondly, that the ratio of that case of Gopal Meena (supra) cannot in any case be applied retrospectively, either from 1997, or prior to 1997, without any OM/specific direction being issued in this regard. In sum and substance, the applicants had, through their rejoinder, submitted that since the Honble High Courts judgment in the case of Gopal Meena (supra) has been challenged before the Honble Supreme Court, and has thus not yet attained finality, its dictum or ratio cannot be applied, and it certainly cannot be applied retrospectively since 1997, for giving benefit of separate zone of consideration to a person who was promoted on look after charge basis in the year 2007, against the vacancies of reserved category. It was submitted that Private Respondent R-7 cannot be allowed to jump over his compatriots in the guise of implementing a separate zone of consideration from 1997, since any order cannot be given retrospective applicability without any specific direction of the court regarding its retrospective applicability, giving the date of applicability/OM in this regard.
43. Coming to the guidelines issued for conduct of DPC, it was submitted by the applicants that a review DPC is required to consider the case before it only with reference to technical and factual mistakes, as committed earlier, and that a review DPC should neither change the grading of an officer without any valid reason, nor change the zone of consideration. Taking shelter behind Para 3 of the DoP&T OM dated 03.03.2008, it was mentioned that the appointees, either by direct recruitment or by promotion, should get the seniority of the year in which they are appointed on substantive basis, and since, in the instant case, the Private Respondent R-7 was promoted only on an ad-hoc basis from 15.12.2008, he cannot be given seniority/promotion from an antedate, or by creating a separation zone of consideration since 1997. It was further submitted that the document dated 08.05.2006, now commented upon by the Honble High Court in respect of promotion of AEs, is itself the outcome of the review DPC held in 1997, in compliance of the High Courts order in WPC No.5838/2008. It was, therefore, prayed that the OA may be allowed and the reliefs, sought for in the OA, may be granted.
DISCUSSION OF THE ARGUMENTS/SUBMISSIONS
44. Heard. The case was argued vehemently by both the sides, and voluminous written submissions were filed on behalf of the applicants on 29.10.2011, after the case had been reserved for orders, through which our attention was drawn to the Honble Apex Courts observations in Ajay Kumar Bhuyan & Ors. vs. State of Orissa & Ors. (2003) 1 SCC 707, in which the Honble Apex Court has taken a strong view of the matter that the Tribunals and the High Courts were passing orders by ignoring the law of the land laid down by the Honble Apex Court. We bow down before these observations of the Honble Apex Court, and would confine ourselves to the law as laid down, as it is understood by us.
45. It was submitted in written submissions that the main issue raised in the OA pertains to grant of benefits of reservation in the matter of promotions and fixation of seniority in the grade of EEs, which is being sought to be done by the Official Respondents by ignoring the law as laid down by the Honble Apex Court in M. Nagaraj (supra) & in Suraj Bhan Meena (supra). It was submitted that while deciding OA No.2605/2009 filed by the Private Respondent No.R-7 N.C. Meena (supra) on 28.09.2010, the applicability of these Apex Courts judgments had not been appreciated by the Tribunal. It was submitted that the Honble Apex Court has in M. Nagraj (supra) held that the concerned State will have to show in each case the existence of compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency, before making any provision for reservation, and that the State is not bound to make reservation for SC/ST in the matter of promotions, for which there is only an enabling provision, which should not be made operative unless the State has collected quantifiable data showing backwardness. It was submitted that this ratio in M. Nagraj (supra) was followed by the Honble Apex Court in Suraj Bhan Meena (supra) and in U.P. Power Corporation (supra) and again in Lachhmi Narain Gupta & Ors. vs. Jarnail Singh & Ors. by the Punjab and Haryana High Court at Chandigarh while deciding CWP No.1328/2009 on 15.07.2011. It was, therefore, submitted in the written submissions that when there is no provision for automatic reservations in promotions, the Official Respondents cannot extend the scope of the provision for reservations in promotions by providing a separate zone of consideration. Shelter was sought behind the Honble Apex Courts ratio in Special Land Acquisition Officer vs. Karigowda & Ors. (supra) to state that the law as laid down by the Honble Apex Court shall have to be followed by this Tribunal.
46. Once again coming to the aspect of positions in Seniority List, it was submitted that as per the last Seniority List dated 15.02.2005, which had been relied upon by the Private Respondent No. R-7 also in OA No.2605/2009, the applicant No.1 was at seniority position No.400, the applicant No.2 was at seniority position No.388 while the Private Respondent No.R-7 was at seniority position No.431, as already evidenced through Annexure A-10 of the OA. It was further submitted that both the interim orders of the Honble Delhi High Court dated 07.11.2006 and 16.01.2012 had only spoken about the outcome of the first review DPC in respect of the year 1997 held in the year 2006 for the post of A.E, and in respect of 50 AEs promoted up to 31.12.1997. It was submitted that as per this Seniority List, the Private Respondent No.R-7 further goes down, and his position in Seniority List would be 456 if the Seniority List is prepared according to the orders of the Honble Delhi High Court. It was argued that the Private Respondent No.R-7 has wrongly put forward his case before this Tribunal on the basis of Seniority List dated 18.07.2011, which was not in operation at the time of the original DPC and is not in operation even now, as it stands suspended by the orders of the Honble Delhi High Court dated 05.08.2011 in WP (C) No.293/2012. Once again reiterating the contentions, as raised in the pleadings, as well as during the arguments, it was submitted that the original DPC was not under challenge, and, therefore, it was not permissible to hold a review DPC by making a separate zone of consideration, which was not the subject matter in the original DPC. It was further submitted that the Private Respondent No.R-7 cannot be allowed to plead that as per the minutes of the DPC meeting, the vacancies for SCs/STs were still existing, and to further plead that the Honble Apex Courts ratio in M. Nagaraj (supra) has not barred the reservations in promotions in any manner. It was reiterated that without an exercise being conducted as laid down by the Honble Apex Court in M. Nagaraj (supra) and in Suran Bhan Meena (supra), and in U.P. Power Corporation (supra), there cannot be a computation of vacancies on a mechanical basis for applying the percentage quota for SCs/STs in the aspect of promotions.
47. In regard to the plea raised by the Private Respondent No.R-7 that the Honble Apex Court judgment in M. Nagaraj (supra) delivered in the year 2006 cannot be applied retrospectively prior to 2006, it was submitted that this judgment was regarding the 85th Amendment of the Constitution, which became applicable on 17.06.1995, and hence the law declared by the Honble Apex Court has to be deemed to be applicable from the date of inception of the Constitutional Amendment.
48. In regard to the plea raised by the Private Respondent No.R-7 regarding the judgment in the case of Gopal Meena (supra), it was submitted that the law as laid down in M. Nagaraj (supra) was not followed by the Honble High Court in deciding the case in Gopal Meena (supra). Thereafter, point by point rebuttal of the arguments advanced and grounds raised by Private Respondent No.R-7, already described in detail above, were countered in the written submissions. It was further submitted that the case of Dalbir Singh vs. MCD (supra), directing for conduct of review DPC for the years 1994 to 1997, is not concerned with the instant case, because the issue involved in the present O.A. is for the review DPC being held in respect of the original DPC held in July 2008. It was submitted that both the official respondents and the Private Respondent R-7 are trying to mislead this Tribunal in order to be able to avoid the main issue, which is reservations in promotions, and as to how such reservation in promotions is not permissible without the State first conducting the exercise as per the law laid down by the Honble Apex Court. It was submitted that the Honble Punjab and Haryana High Court has in the case of Lachhmi Narain Gupta & Ors. (supra) already held that once reservation in promotion is not permitted in view of the decision of the Honble Apex Court in M. Nagaraj (supra), all other issues are irrelevant. It was, therefore, reiterated that the OA filed by the applicants may be allowed with directions to the respondents not to apply reservation in promotions.
DISCUSSION ON THE GROUNDS AND ISSUES
49. As we have noted in the beginning paragraphs itself, cases organically related to the instant case had reached the Honble Delhi High Court in WP (C) No.293/2012 Ramesh Kumar & Ors (supra), and WP (C) No.6568/2011 Jagdish Prasad (supra) with WP (C) No. 8724/2011 Sandeep Malhotra and Ors. (supra) in the second round of litigation before the Honble High Court. The three Writ Petitions came to be disposed of together through the Honble High Courts orders dated 05.08.2013, restoring the TAs No. 243/2009, 327/2009 & 395/2009 before this Tribunal for fresh adjudication. While passing the said order, the Honble High Court had on 05.08.2013 noted the following issues and directions, as paraphrased below:-
The three Writ Petitions arising from the three TAs as mentioned above had raised two-fold issues:-
(1) Seniority being assigned to directly recruited Assistant Engineers within the same merit list with reference to the fact that some of those direct recruits had joined beyond a period of six months of the date when the select panel was prepared and the inter-se dispute of seniority within direct recruits was as to whether the seniority had to be fixed inter-se-seniority as per the merit position in the select list, or those who had joined beyond six months time of the select panel had to be placed en block junior.
(2) Inter-se-seniority of promotees and direct recruits with reference to the fact that the process of appointment by direct recruitment was alleged to have been unduly delayed, because of which DPCs were held for promotees before direct appointments could be made, and the concept of continuous officiation came up for consideration in the context of the applicability of the rota-quota rule.
(3) It was further noticed by the Honble High Court that the TAs had been decided by the Tribunal overlooking the fact that the persons who were likely to be adversely affected by the decision were not even impleaded as respondents before it. The Honble High Court had held that it was primarily the duty of the Tribunal to have decided the matters after ensuring that all the necessary parties were before it, which, in the context of a seniority dispute inter-se direct recruits and promotees, as described above, would be all those who would be affected by the proposed decision.
50. The Honble High Court had thereafter directed for the three matters to be remanded back to this Tribunal, for the three T.As being decided afresh, after impleading persons whose seniority was being questioned. Since in the meanwhile the MCD had re-drawn a Seniority List, as per the impugned common decision in those three TAs, the Honble High Court had, while restoring the TAs, suspended the operation of the Seniority List re-drawn by the MCD in terms of the impugned common order.
51. It was also noted by the Honble High Court that some interim orders had existed till the disposal of the three TAs, and since the TAs were being restored for adjudication afresh, the Honble High Court had ordered for such interim orders also to be revived afresh. These three TAs are still pending adjudication, before another Bench, and had been listed for hearing on 16.04.2014, and have now been postponed for further hearing on 02.05.2014. However, even in the present O.A. before us, we are bound by certain portions of the order passed by the Honble High Court in those cases on 05.08.2013, namely:-
i) The Seniority List as was re-drawn by the MCD in terms of the impugned common orders of the Tribunal in the three TAs has now been suspended;
ii) The interim orders passed in the three TAs when they were Writ Petitions before their transfer to this Tribunal have been revived, after restoration of those TAs for adjudication afresh.
52. As a result, all the averments of the learned counsel for the applicants, trying to draw sustenance from the common orders of the Tribunal as passed in the cases of Sandeep Malhotra and Ors T.A. No.327/2009 (W.P. (C) No.4123-26/2005, and 8724/2011), Ramesh Kumar and Ors T.A. No.395/2009 (W.P. (C)No.6495-98/2005 and 293/2012), and Jagdish Prasad T.A. No.243/2009 (W.P.(C) No.4906/2005, and 6568/2011) do no longer bind us while determining this case.
53. Our task has been made easier by the detailed order passed by a Coordinate Bench of this Tribunal on 18.10.2012 while dismissing the MA No.2412/2012 filed in the present OA, on the point of maintainability of this O.A., praying for dismissal of this OA at the threshold itself, in limine. The Coordinate Bench had, while passing this order dismissing the MA, identified the following four strands of legal arguments, which were found by it to be germane for the purpose of arriving at a conclusion before deciding the present OA:-
i) Non-compliance of the orders of the Honble Delhi High Court passed in the earlier Writ Petition No.12134/2006 and in the case of Gopal Meena & Ors. (supra).
ii) Non-challenge to the original DPC
iii) Alleged factually incorrect averments
iv) The averments of the applicants not being within the consideration Zone
54. Confining ourselves to these issues, which were very appropriately distilled by the Coordinate Bench on 18.10.2012, in regard to the first of the above four issues, we find that this Tribunal cannot be asked to interfere with compliance of the orders of the Honble High Court passed earlier in the Writ Petition No.12134/2006 Anil Tyagi (supra) or in the case of Writ Petition No. 356/2008 Gopal Meena and Ors. (supra). If either the applicants, or the Private Respondent No.R-7, are aggrieved by these orders of the Honble High Court, the remedy lies elsewhere, and not with this Tribunal, since the Honble High Court is a superior Court. Also, the Honble High Courts judgment in the case of Gopal Meena (supra) has already been challenged by the Union of India by filing a S.L.P. before the Honble Apex Court.
55. As regards the second issue is concerned, it is obvious from the discussion of the facts as above that the applicants have not laid a challenge to the original DPC held in the year 2008, and, therefore, a review DPC, which is held only for the purpose of a review of the decisions taken in the original DPC, cannot be challenged without laying a challenge to the original DPC. However, it may be pointed out here that the review DPC could not be convened so far, because of the interim orders passed by the Tribunal on 26.07.2012, while admitting the case for issuance of notices to the Respondents.
56. As regards the third issue is concerned, the Private Respondent No.R-7 had submitted that the applicants had made factually incorrect averments in their OA, particularly in Para 4.4 of the OA. We find that one portion of the paragraph states as follows, which was specifically pointed out to be untrue:-
4.4..Thereafter the Executive Engineer promoted on look after basis were given adhoc promotion vide office order No.F.7(11)/CED(III)/96/pt. 10/25/23787 dt. 15.12.08, however respondent no.7 as well as applicant No.2 could not be given adhoc promotion being under cloud..
(Emphasis supplied)
57. On a verification of the Annexure A-6 Page-94, which was pointed out to us by the learned counsel for the Private Respondent No.R-7, it is seen that in the case of R-7 Shri N.C. Meena, at Sl. No.49, the only remark made against his name was that he is a promotee, and it is not as if he had not been given adhoc promotion through the Office Order dated 15.12.2008. Of course, the name of applicant No.2 does not find a mention in the list, as produced by the applicants themselves. Therefore, the submission made in Para-4.4 is incorrect in so far as Private Respondent No.R-7 is concerned, but is correct in so far as the applicant No.2 himself is concerned.
58. The Coordinate Bench had framed the fourth issue regarding the averments of the applicants not being within the consideration zone, but it is seen that the case of applicant No.1 was very much considered, and also that he was promoted through orders dated 15.12.2008 at Annexure A-6, and, therefore, this issue also does not fall for any further consideration.
59. The applicants had relied upon the Office Order dated 06.04.2011 (Annexure A-VIII) by which the review DPC was held for the DPCs held earlier on 09.12.1997, on 14.05.1998, on 25.01.2002 & on 23.03.2006. It is seen that these review DPCs were held in compliance of the orders of this Tribunal in TAs No.890/2009, 986/2009, 706/2009, 697/2009, 707/2009, 708/2009, 124/2010, 125/2010 etc. It is not clear from this Office Order, and its proceedings, as to whether these three TAs No.243/2009, 327/2009 & 395/2009, the common orders passed in which have since been set aside by the Honble High Court, were also included along with the TAs No. 890/2009, 986/2009, 706/2009, 697/2009, 707/2009, 708/2009, 124/2010, 125/2010 etc., though it does not appear to be so. In such circumstances, prima-facie it appears that the Office Order dated 06.04.2011 (Annexure A-8) derives its sustenance from such orders of this Tribunal which have remained unchallenged, and have therefore become final, and thus the Office Order would remain valid and cannot be challenged obliquely in the present proceedings, in this manner, by way of its being filed as an Annexure, without a separate challenge having been laid against it, for adjudication.
60. While ordering the three TA cases to be restored for fresh adjudication by this Tribunal, the Honble High Court had ordered that interim orders are operating in some of these TAs, which would stand revived. In view of these specific orders of the Honble High Court, we have called for and gone through the three concerned TA files also. It is seen that in TA No.243/2009 (WP(C ) Nos. 4906/2005 and 6568/2011) in Jagdish Prasad vs. MCD & Ors., no interim orders had ever been passed by the Honble High Court, or later by this Tribunal, and so no interim orders are operating as on today. However, in TA No.327/2009, (WP (C) No.4123-26/2005 and 8724/2011), even when the Writ Petitions No. 4123-26/2005 were pending before the Honble High Court itself in the first round, several interim orders had been passed. The first such detailed order dated 25.04.2005 in WP (C) No.4123-26/2005 Sandeep Malhotra & Ors. vs. MCD & Ors. was passed by the Single Bench of Honble Mr. Justice Vikramajit Sen, as His Lordship then was, in which the controversy before the Court had been recognized to have been adjudicated earlier also by the Division Bench of the Honble High Court in S.A. Ansari and Others vs. MCD, CW No.2897/95 and C.Ms. 4650/96, 289/97 and 564/97, decided on 30.05.1997, in which a detailed judgment and order had been passed. Thereafter the Single Bench had gone on to pass the following orders:-
Learned counsel for the Petitioner relies on State of Maharashtra and Another A.W. Dhope and Others vs. Sanjay Thakre and Others, 1995 Supp (2) SCC 407 and Sanjiv Mahajan and Others vs. Union of India and Ors., 2002 (65) DRJ 803 (DB).
Learned counsel for the Respondent relies on Suraj Prakash Gupta and Ors. etc. etc. vs. State of Jammu and Kashmir and Ors., 2001(1) AISLJ 179, A.N. Pathak and Others vs. Secretary to the Government, Ministry of Defence and Another, 1987 (Supp) SCC 763 and N.K. Chauhan and Others vs. State of Gujarat and Others, (1977) 1 SCC 308. The controversy which has arisen before this Court had been adjudicated by the Hon'ble Division Bench in S.A. Ansari and Others vs. Municipal Corporation of Delhi decided on 30.5.1997. The following directions had been passed:
In these circumstances, the only direction which deserves to be issued in this Writ Petition, amongst the aforementioned in the preceding paragraph are and which we hereby issue to the respondent is to proceed ahead forthwith to fill up the posts falling in the quota for direct recruits within a period of six months from today, by which date the post held on current duty charge and look after charge basis shall automatically stand vacated. In order to fill up of the posts, the respondent will first identify the posts, which have not regularly been filled up and will work out the vacancy position. The current duty, look after basis, and other posts, which are not regularly filled up (excluding 25 posts for which circular has already been issued) will be treated as vacant and all vacant posts thus identified will be filled up, 50% by direct recruitment and 50% by promotion within a period of six months.
So far as 44 promotions are concerned these appear to have been given effect to on 30.12.1997 although the Order of the Hon'ble Division Bench was that the Direct Recruitment as well as Promotion was to take place within six months. An application was thereafter filed seeking extension of time for effecting the 50 per cent Direct Recruitments and time was extended till 5.3.1998. The grievance of the Petitioner is that 44 promotees have been given seniority effective from 30.12.1997, and the Petitioners, who were direct recruits, have been granted seniority with effect from the date of their appointment thereby making them junior to the promotees. Prima facie, this is contrary to the intendment of the Hon'ble Division Bench. This was obviously the understanding of the Respondents since they moved an application for extension of time. Therefore, for inaction on the part of the Respondents the Petitioners should not be made to suffer. There is no impediment in giving a notional seniority in respect of the Direct Recruitments with effect from 30.12.1997 so that the Judgment of the Hon'ble Division Bench can be fairly and equitably applied to all concerned.
Rule.
Counter Affidavit, however, be filed within eight weeks from today. Rejoinder be filed within four weeks thereafter.
CMs No.3039/2005 and 4554/2005 The impugned Seniority List be not given effect to till orders to the contrary. Applications stand disposed of.
(Emphasis supplied).
61. Therefore, it is seen that on the one hand notional seniority was directed to be given effect to for the Direct Recruits w.e.f. 30.12.1997, so that the Honble Division Bench judgment in S.A. Ansari & Ors (supra) could be fairly and equitably applied to all concerned, and further orders were also passed that the Seniority Lists impugned in the Writ Petitions No.4123-26/2005 should not be given effect to till further orders to the contrary (as ordered while disposing of Civil Miscellaneous Petitions No.3039/2005 and 4554/2005). Thereafter, on 05.04.2006 another Single Bench, chaired by Honble Mr. Justice S. Ravindra Bhat, had allowed the Civil Miscellaneous Petition No.14821/2005, which was a petition filed by six Assistant Engineers praying for being impleaded as party respondents in the Writ Petition Nos. 4123-26/2005 filed by Sandeep Malhotra and Ors. The petitioners of that Civil Miscellaneous Petition No.14821/2005 had prayed before the Honble High Court that if the Writ Petition Nos.4123-26/2005 are accepted without their being made a party, the writ petitioners will steal a march over the applicants of the Miscellaneous Petition in the Seniority List, even though the Seniority List concerned had already been stayed by the Single Bench through orders passed in Civil Miscellaneous Petition No. 3039/2005 and 4554/2005, on 25.04.2005, till orders to the contrary are passed.
62. The contention of the applicants of the Civil Miscellaneous Petition No.14821/2005 was that the effect of the stay order (already reproduced above) granted by the Single Bench of the Honble High Court on 25.04.2005 was such that the applicants of that Civil Miscellaneous Petition, whose petition was allowed, and, thereby, who were allowed to be impleaded as party-respondents, would not have been promoted to the next higher post of EE (Civil), and the stay granted on 25.04.2005 was actually becoming injurious to them, as they would retire in the near future, because they were Diploma holders, and as far as length of service in the respondent Corporation was concerned, they were much senior to the petitioners of the Writ Petition No.4123-26/2005 Sandeep Malhotra & Ors. It had further been stated by the six petitioners of Civil Miscellaneous Petition No. 14821/2005 that they had been promoted by the regular DPC held in the year 1997, while, on the other hand, the writ petitioners Sandeep Malhotra & Ors. were appointed for the first time in the respondent Corporation against the Direct Recruitment Quota in the year 1998, and while granting the Stay Order dated 25.04.2005 the Honble High Court should have considered as to whether those who were not even in service, can claim seniority over officers who were appointed to the relevant post almost a year prior to them. It had been submitted by them that the Honble Single Judge had, at the time of passing of the said order dated 25.04.2005, not considered the fundamental question as to whether the writ petitioners Sandeep Malhotra & Ors. can claim seniority over and above the applicants of the Civil Miscellaneous Petition, when the Rule in this regard is that if certain number of vacancies of Direct Recruits had remained unfilled after following the ratio of 1:1 for promotion by seniority between the promotees and Direct Recruits, then such vacancies will have to be carried forward for the next recruitment years, and, subsequently, when seniority will be determined between Direct Recruits and promotees, the Direct Recruits selected against the carried forward vacancies of the previous year would be placed en bloc below vis-`-vis the last promotee.
63. After the Civil Miscellaneous Petition No.14821/2005 of these six petitioners had been allowed, and they had been allowed to be impleaded as parties, and amended Memo of Parties had been allowed to be filed through orders dated 05.04.2006, as stated above, the earlier orders dated 25.04.2005 stood modified and partially overturned. On 19.07.2006, it was noticed by the Single Bench of the Honble High Court that a Letters Patent Appeal (LPA, in short) had been decided that day, which obviously must have had some relevance for the Writ Petitions concerned, No.4123-26/2005, though even the LPA number has not been noted in the order sheet dated 19.07.2006 of the Honble High Court. We are, therefore, not able to decipher the full significance and the import of the order recorded that day. However, the Honble Single Bench had noted that the orders dated 22.11.2005 stand complied with in respect of the promotee engineers. A careful perusal has revealed that this reference was in respect of another (fourth) batch of Writ Petition, in WP (C) No.5838/1998 O.P. Mittal vs. MCD & Ors., through which orders of Honble Mr. Justice S. Ravindra Bhat, a direction had been issued to the MCD to hold a Review DPC in respect of each of the years 1991 to 1997. Therefore, very rightly so, the Honble Single Bench had on 19.07.2006 noted that the first thing to be considered was as to whether the Writ Petitions No.4123-26/2005 can be heard and decided, and as to what would be the impact of the order passed that day in the LPA, and the parties were allowed to address the Court on these questions.
64. After the above order was passed on 19.07.2006, arguments were heard in part on 10.08.2006. That day the Honble Single Bench of the Delhi High Court noted that the preliminary question that has cropped up is as to whether all the necessary parties have been impleaded in the case, since seniority of 44 promotees, and corresponding number of Direct Recruits is involved, but 44 promotees were not respondents before the Honble High Court. Therefore, when the next effective hearing in WP (C) Nos.4123-26/2005 took place on 30.10.2006, the Single Bench of the Honble High Court passed the following orders:-
The question heard today is whether the Engineers, who are not parties in the writ petitions but would be affected if the writ petitions are allowed, should be parties before the Court. It is contended on behalf of the petitioners that this Court is called upon to decide only a question of principle and, therefore, the presence of MCD, who has made the promotions and recruitments and has issued the seniority list, need to be made party. Reference is made to the Supreme Court judgments in the cases of Col. D.D.Joshi and Others Vs. Union of India & Ors., (1983) 2 SCC 235; V.P.Shrivastava and Ors. Vs. State of M.P. and Ors., (1996) 7 SCC 759; and A.Janardhana Vs. Union of India and Others, AIR 1983 SC 769. On behalf of the respondents reliance is placed on the judgment of the Supreme Court in the case of State of Bihar and Others Vs. Kameshwar Prasad Singh, (2009) 9 SCC 94. According to the respondents, all the Engineers, who were promoted prior to the appointment of the petitioners but whose seniority are now challenged, should be parties before this Court.
This writ petition is at the very preliminary stage of admission. Seven of the promotees, whose seniority are likely to be affected by the decision in the writ petition, are already parties before the Court in writ petitions, bearing WP ) 4123-26/2005 titled Sandeep Malhotra & Ors. Vs. MCD. These promotees had themselves applied for being impleaded as parties and their application was allowed. There can be no dispute that the promotees, who are likely to be affected by the decision in these cases, are proper parties. Therefore, all the promotees promoted in December, 1997 are proper parties and are required to be impleaded. It is pointed out that 10 out of 44 have by now retired from service and 2 have expired. None of these 12 persons had been given any promotion and, therefore, their interest is not involved in any way in the decision of these writ petitions. The others be now impleaded as respondents.
Appropriate memos of parties be now filed. All the newly added respondents will be served through the MCD/respondent no.1. This exercise be done within a month.
List these writ petitions before the Registrar for conclusion of service and pleadings on 14.12.2006.
CM 8984/06 in WP (C) 6495-98/05 Issue notice to the non-applicants. Reply be filed within four weeks.
RA No.115/2006 in WP (C) No.5838/1998 Mr. Sethi, learned senior counsel mentions that in the case of O.P.Mittal Vs. MCD & Ors., being WP (C) 5838/1998, the applicants, namely, Manoj Kumar and Others, were adversely affected by the judgment as they were not parties before the Court at that time and the operation of the judgment in WP (C) 5838/1998 dated 22.11.2005 be stayed. It is submitted on behalf of the MCD that the judgment has already been implemented and an office order dated 8.5.2006 has already been passed.
In this view, no interim orders can be passed today. However, this prayer is not disposed of today and will be considered after all the proper parties have been served.
(Emphasis supplied)
65. On the next date of hearing, on 07.11.2006, the Honble Single Bench recorded the following further orders, reference to which had been made by the applicants before us in the present O.A., as recorded by us in para 3,4 & 7/above:-
The prayer in this application is for vacating the order of stay dated 25th April, 2005. It is contended that on account of the Supreme Courts directions requiring commercial premises in residential areas to be sealed and in respect of other works required to be done by MCD under various order of this Court, the work load has increased manifold and unless the Engineers are allowed to be promoted, the MCD is finding it difficult to discharge its duties.
Mr. Sandeep Sethi, Sr. Advocate appearing for the petitioner contends that the stay order may be modified by allowing the respondent to make promotions subject to the outcome of the writ petition provided the respondent/MCD is willing to appoint the direct recruits and promotees in the cadre of Junior Engineer in the ratio of 1:1.
Ms. Amita Gupta, Advocate appearing for the respondent/MCD says that MCD actually intends to carry out promotions in this manner.
In view of the above, the order of 25th April, 2005 is modified to the extent that subject to the outcome of the writ petition the MCD may appoint Executive Engineers by promotion and direct recruitment on 1:1 basis.
It is clarified further that the two categories from which promotions are required to be made are the direct recruit Assistant Engineers of May, 1998 and promotee Assistant Engineers from 30th December, 1997 starting from Ram Niwas Gupta which is shown at Sty. No.163 in the document dated 8th May, 2006.
The application stands disposed of.
Copy of this order be given Dasti to the counsel for the respondent/MCD.
(Emphasis supplied).
66. These orders of the Honble High Court stood operative on 27.01.2009, when the Writ Petitions were ordered to be transferred to this Tribunal, and were thereafter listed as TA No.327/2009. They had modified the first orders of stay passed by Honble Mr. Justice Vikramajit Sen, as His Lordship then was, on 25.04.2005, which have been reproduced in part in para 60/above.
67. The effect of these two interim orders dated 30.10.2006 and 07.11.2006 passed by the Honble Single Bench of the Delhi High Court, in W.P. (C) Nos.4123-26/2005 with WP (C) Nos. 6495-98/2005, but not in WP (C) No.4906/2005, as we understand, was as follows:-
1) All the promotees who were promoted in December 1997 were held to be proper parties, and were required to be impleaded in the concerned Writ Petitions. After noting that six had already applied for and had become party respondents, it was noted that 10 out of 44 had by then retired from service, and two had expired, and none of those 12 persons had been given any promotion, and, therefore, it was noted that their interest is not involved in any way in the decision on these Writ Petitions, however, the other 26 out of the 32 persons still surviving, and in service were ordered to be impleaded as party-respondents and proper Memo of Parties was ordered to be filed.
2) While considering RA-115/2006 in WP (C) No.5838/1998 O.P. Mittal vs. MCD & Ors., filed against the orders passed on 22.11.2006 by Honble Mr. Justice S. Ravindra Bhat, which had already been reported to have been implemented also, it was ordered that the review applicants Manoj Kumar and Others were adversely affected by the judgment, as they were not parties before the Honble High Court at that time, and when it was prayed that the operation of the judgment in WP (C) No.5838/1998 dated 22.11.2005 be stayed, while on behalf of MCD it was submitted that the judgment had already been implemented and an office order dated 08.05.2006 had already been passed, thereafter, though the Single Bench had declined to pass any interim orders, the prayer made in the RA No.115/2006 had not been disposed of, and it was ordered to be considered after all the proper parties had been served. Therefore, the issue as decided on 22.11.2005 in WP (C) No.5838/1998 O.P. Mittal (supra) stood thereby reopened, for determination through the Review Application No.RA-115/2006.
iii) The stay order dated 25.04.2005 passed by the Single Bench of Honble Mr. Justice Vikramajit Sen, as his Lordship then was, stood modified to the extent that subject to the outcome of the Writ Petition Nos.4123-26/2005, the MCD was permitted to appoint EEs by promotion and direct recruitment on 1:1 basis.
68. It had been made further clear by the Honble Single Bench in its order dated 07.11.2006 that the two categories from which promotions to EEs level were required to be made on 1:1 basis were as follows:-
a) The Direct Recruit Assistant Engineers of May 1998, and
b) The promotee Assistant Engineers from 30.12.1997 starting from Ram Niwas Gupta whose name was shown at Seniority No.163 in the document dated 08.05.2006.
69. With these interim orders, the Civil Miscellaneous Petition No.13611/2006 filed in the said Writ Petitions had been disposed of, and these interim orders now stand revived by the specific orders passed by the Honble High Court on 05.08.2013 through Para-6 of the judgment dated 05.08.2013 in WP (C) 6568/2011 Jagdish Prasad, and WP (C) 293/2012 Ramesh Kumar & Ors, and WP (C) 8724/2011 Sandeep Malhotra & Ors. vs. MCD & Ors. as already mentioned above.
70. WP (C) No.6495-98/2005 Ramesh Kumar & Ors. numbered as TA No.395/2009 has also been remanded back to this Tribunal for re-adjudication. It is seen that in this bunch of Writ Petitions also, on 25.04.2005, similar interim stay orders had been passed by the Single Bench of Honble Mr. Justice Vikramajit Sen, as His Lordship then was, as has already been mentioned above, in the context of the Writ Petitions No.4123-26/2005 covered in TA No.327/2009. Even the orders of Honble Single Bench dated 30.10.2006 was the same in this bunch of four Writ Petitions (Civil) 6495-98/2005, but no order had been passed on 07.11.2006 in that bunch of Writ Petitions, as can be seen from the file received from the Honble High Court. However, read together, the impact of the interim orders passed by the Honble High Court in the two bunches of Writ Petitions would remain the same, and both the sets of interim orders of the Honble High Court dated 30.10.2006 and 07.11.2006 now stand revived.
71. The impact of this revival of the two interim orders passed by the Honble High Court on the instant case before us appears to be two fold. Firstly, since the RA No.115/2006 in WP (C) No.5838/1998 O.P. Mittal vs. MCD & Ors. could have been decided only by the Honble High Court, and this Tribunal being a Court subordinate to the Honble High Court as per L. Chandra Kumar vs. Union of India & Ors. AIR 1997 SC 1125, cannot decide a Review Application filed praying for a review of the orders of the Honble High Court passed in Writ Petition (C) No.5838/1998 O.P. Mittal vs. MCD & Ors. Therefore, the prayer of Manoj Kumar & Ors in RA No.115/2006 in WP (C) No.5838/1998 still survives adjudication by the Honble High Court, in view of the specific orders dated 30.10.2006 reproduced by us in para 64/above.
72. Secondly, in view of the same interim orders dated 30.10.2006, which now stand revived, in view of the continuing pendency of the RA No.115/2006 in WP (C) No.5838/1998, till today, Honble Mr. Justice S. Ravindra Bhats judgment dated 22.11.2005 in the said Writ Petition, which had ostensibly been implemented also by the M.C.D. through the Office Order dated 08.05.2006, is still not final, till the Honble High Court disposes of the Review Application No.115/2006, which it does not appear to have done so far. It may be noted here that while the WP (C) No.4123-26/2005, WP (C) No.6495-98/2005 and WP (C) No.4906/2005 had stood transferred to this Tribunal through the Honble High Courts orders dated 27.01.2009, the file relating to RA No.115/2006 in WP (C) No.5838/1998, which could never have been so transferred for adjudication by this Tribunal, as it is impossible, was never transferred, and those records must still have been retained by the Honble High Court itself for disposal of the said Review Application.
73. A search of the website of the Honble Delhi High Court has since revealed that that RA No.115/2006 in WP (C) No.5838/1998 has perhaps not yet been disposed of by the Honble High Court. Therefore, no finality can be said to have been attached to the judgment dated 22.11.2005 in the said Writ Petition (C) No.5838/1998, O.P. Mittal vs. MCD & Ors, even though the orders passed that day by the Honble High Court had already been implemented by the MCD through Office Order dated 08.05.2006, because the RA No.115/2006 had not been disposed of by the Honble High Court on 30.10.2006, when it was last considered as per the records available with us. This renders the finality of all the Review DPCs for the years 1991 to 1997 itself being still open for adjudication by the Honble Delhi High Court, and, therefore, suspect. And, if the Review DPCs of the years 1991 to 1997 have themselves not yet become final, the issue of finality of the subsequent DPCs for the years 1998 onwards cannot be decided by us in the present O.A., without a determination of year-wise vacancies for all the years.
74. Returning to the esoteric arguments advanced before us, the learned counsel for the applicants had submitted that a Coordinate Bench of this Tribunal has in its order dated 05.12.2013 in OA No.2434/2012, and in order dated 24.12.2013 in OA No.2009/2013, directed that the principles as laid down by the Honble Apex Court in the case of M. Nagaraj (supra), and in Suraj Bhan Meena (supra) have to be applied by the State of Govt. of NCT of Delhi while giving promotions in the cadres of Nurses in the first case, and by the Ministry of Home Affairs of the Union of India in the case of Delhi Police Sub-Inspectors of 1996 Batch in the second case. It was submitted that these orders of Coordinate Bench are binding upon us, with which submission we agree. Copies of these orders were handed over by the learned counsel for the applicants in the month of January 2014. While we are bound to follow the orders of a Coordinate Bench, as per the law clearly laid down by the Honble Apex Court in SI Roop Lal and another Vs. Lt. Governor through Chief Secretary, Delhi & others (2000) 1 SCC 644, we may only place our submissions in this regard as below.
75. While it is true that the Honble Apex Court has in a catena of judgments, in M. Nagaraj (supra), Suraj Bhan Meena (supra) and UP Power Corporation (supra), held that the State cannot keep on providing reservation, and fixing percentages for reservation quotas without undertaking the exercise for determination of backwardness of the concerned backward classes and SC/STs, as laid down by the Honble Apex Court in the case of M. Nagaraj (supra), and repeated in the later judgments, the ambit or scope of such an exercise has not been held, or decided, or laid down by the Honble Apex Court in any particular judgment so far. It is clear that if, and as and when, such an exercise has to be undertaken, that exercise would have to relate to the Union of India, and the individual States, by taking all the services of the Union, or State, as a whole, and all services, of all cadres, of all departments of the State Governments, covered by the Presidential Orders/Orders issued by the Governor of the State, as a whole.
76. No where, in any of its judgments, the Honble Apex Court has held that such an exercise will have to be broken up, and conducted separately for separate services, or separate cadres, or separate departments, or separate Organizations, though they would all be covered by the same Presidential Orders/Orders issued by the Governor of the State concerned. Thus, to our mind, the scope of such an exercise was always meant by the Honble Apex Court to be a macro exercise, and such a mandated exercise cannot be a micro or split-up exercise, applicable to individual departments, or organizations, or cadres, or services, of the Union of India, or of the State concerned. What the Honble Apex Court has held is that over all representation by way of reservation of the backward classes, including SC and ST, should not be disproportionate to their strength in numbers, and also that any such reservation should not exceed the maximum limit of 50% in the State concerned. But neither of these two propositions have been directed by the Honble Apex Court to be applied to an individual organization, or cadre, or service, in the Union of India, or the State concerned. To our mind, such directions have also been issued by the Honble Apex Court only to the Union of India, and the States individually, and cannot be deemed to have been addressed to a Municipal Body like the M.C.D., to undertake such an exercise to its own, on a micro level.
77. It is clear that in the stream of the ratio as laid down by the Honble Apex Court in the above cited landmark judgments, the spirit of Article 16(4) and Article 16-(4A) would be satisfied only if the over all representation by way of reservation is fulfilled on a macro scale, within the Union, or the State concerned, covered by a Presidential Order/Order issued by the Governor of the State concerned.
78. It cannot be anybodys case that such an exercise would have to be necessarily broken up into a micro-level exercise, by examining each service, and cadre separately. It is quite possible that the reservation of SCs & STs in a particular State in a particular department, or service, or cadre may be more, and, in another department of the same State, such reservation may be lower, but both put together may over all bring the reservation within the limits as envisaged in the exercise to be conducted by the State under the directions of the Honble Apex Court in M. Nagaraj (supra), Suraj Bhan Meena (supra) and UP Power Corporation (supra).
79. Therefore, to our mind, it cannot lie for any particular employee to plead that such an exercise should be conducted by a Municipal Body, and not the State, or the Union of India, and should be conducted independently of the other services, and cadres, and departments, and organizations, in respect of his organization alone, since the constitutional requirement will be fulfilled if the reservation overall is fulfilled, though on a micro level in some departments, the reservation may be more, and in some other departments and cadres, the reservation may be less. The Coordinate Bench could issue directions regarding such an exercise being undertaken, because Union of India was a party, or was represented, in both the O.A. No.2434/2012 and OA No.2009/2013. That is not the case before us in the instant case, where only M.C.D. is a party respondent, and both the Union of India and the State Govt. of NCT of Delhi are absent from the array of party-respondents. Therefore, we do not feel bound down to issue the same directions as were issued by the Coordinate Bench on 05.12.2013 in OA No.2434/2012, and on 24.12.2013 in OA No.2009/2013.
80. Therefore, we have no hesitation in rejecting outright the contention of the applicants that the official respondent-MCD, since trifurcated, cannot apply the already laid down and announced and publicly known principles and percentages for providing reservations within their own organization, as per the extant Rules, and already in vogue, till the overall macro exercise, as envisaged by the Honble Apex Court in the catena of cases starting from M. Nagaraj (supra) has been completed by the Union of India, or by the State Govt. of NCT of Delhi. To our mind, the two exercises have to go entirely independently of each other, and, therefore, the respondents are fully bound by the Rules already framed by them in this regard, and the Recruitment Rules already notified, and they are bound to advice the UPSC to hold the Departmental Promotion Committees and the Review Departmental Promotion Committees, if any, in accordance with the already notified and existing Rules as on today, even though the overall macro exercise, as envisaged by the Honble Apex Court in M. Nagaraj (supra), Suraj Bhan Meena (supra) and UP Power Corporation (supra), may not yet have been even commenced by the Union of India, or the State Govt. of NCT of Delhi, what to talk of such an exercise to be undertaken at a macro level, having been completed.
81. The role of this Tribunal is to interpret the Rules and Regulations as flow from the Acts, various enactments of Subordinate Legislations, and the Constitution, and the law as laid down by the Honble Apex Court in various cases. To our mind, it is clear that the law as laid down by the Honble Apex Court in the cases cited by the applicants does not, as on today, prohibit either the erstwhile unified MCD, or now trifurcated MCD, to follow the Rules already notified as on today, till those Rules are amended, after the over all macro exercise in respect of the entire State has been conducted, as per the law laid down by the Honble Apex Court in the above cited landmark cases.
82. Thus, having held that at the micro level, in an independent organization like MCD, or the trifurcated MCDs, the ratio of the Honble Apex Court in M. Nagaraj (supra), Suraj Bhan Meena (supra) and UP Power Corporation (supra) cannot be invoked to stop or stall the laid down and prescribed procedures for the purpose of granting promotions, which may flow from the already notified Rules and Regulations and Recruitment Rules in this regard.
83. The applicants of this O.A. have prayed for us to declare the Honble High Courts judgment in the case of Gopal Meena (supra) as per incuriam, but we are obviously not empowered to do so in this Tribunal. An SLP is already pending before the Honble Apex Court, and the Honble Apex Court will decide as to whether the Honble High Courts judgment in the case of Gopal Meena (supra) had laid down the correct law or not. Secondly, the applicants of this OA have prayed for us to disagree with the Coordinate Bench judgment in N.C. Meena (supra) in OA No. 2605/2009, and issue some contrary directions, which also we cannot do, in view of the law as laid down by the Honble Apex Court in SI Roop Lal (supra). In the result, the present O.A. does not have any merit, and is, therefore, rejected.
84. However, the Official Respondents would do well to seek the necessary permission before hand from the Honble Delhi High Court before holding any DPC or Review DPC, for any year whatsoever, in view of the pendency still of the R.A. No.115/2006 in WP (C) No.5838/1998, which the Honble High Court only has to decide one way or the other, and, in the absence of which, all the DPCs/Review DPCs for the years 1991 to 1997 are also still tentative and open, whereby no purpose would be served by holding any review DPCs in respect of the subsequent years also, as pointed out by us in para 73/above also.
(Raj Vir Sharma) (Sudhir Kumar) Member (J) Member (A) cc.