Delhi District Court
Sh. Mukesh Kumar vs Bses Yamuna Power Ltd on 25 August, 2012
IN THE COURT OF SH. SAURABH KULSHRESHTHA:
CCJ:ARC(EAST):KARKARDOOMA COURTS: DELHI
Civil Suit no:672/07
ID NO.02402C0172852006
Sh. Mukesh Kumar
S/o Late Sh. R.S. Chauhan
R/o B-134, East Vinod Nagar, Delhi-110091.
.... Plaintiff
Versus
1. BSES Yamuna Power Ltd.
Shakti Kiran Building
Karkardooma Courts, Delhi.
2. Sh. Sanjay Kumar,
Legal Assistant,
Operations &Maintenance Department,
Shakti Kiran Building,
Karkardooma, Delhi.
Service also to be effected through
A.P.O (B), Trans-Yamuna
Shakti Kiran Building,
Karkardooma, Delhi.
.... Defendants
SUIT FOR DECLARATION AND MANADATORY INJUNCTION
Date of institution of the Suit : 21.03.2006
Date on which judgment was reserved : 27.07.2012
Date of decision : 25.08.2012
Decision : Suit decreed.
JUDGMENT
This is a suit for declaration and mandatory injunction.
Civil Suit no:672/07 Page No: 1/20 The defendant no. 1 BSES is the successor of erstwhile DVB previously known as DESU. The plaintiff was appointed as Junior Clerk with the predecessor of defendant no.1 on 06.06.1994. The plaintiff while in service completed his LLB in the year 2001. After the unbundling of DVB the plaintiff no.1 was absorbed in the defendant no.1 company.
2. It is further the case of the plaintiff that as per the policy of DVB the plaintiff was eligible for promotion to the post of legal assistant after a period of 8 years of service as junior clerk as he possessed an additional qualification i.e. a law degree.
3. It is further the case of the plaintiff that he was transferred to the legal department on the date of coming into existence of the defendant no.1 and was assigned the job to look after the work of Consumer Disputes Redressal forums. On 17.07.2002, the defendant no. 1 through its Chief Executive Officer executed a power of attorney in favour of the plaintiff authorizing the plaintiff to perform all acts for the smooth conduct of the legal proceedings on behalf of the defendant no. 1 in various courts. The plaintiff was entrusted the the same functions which are performed by the legal assistants and legal officers of Civil Suit no:672/07 Page No: 2/20 defendant no.1 company. On 21.06.05 again the plaintiff's authority was certified by the then CEO.
4. It is further the case of the plaintiff that the plaintiff performed all the tasks mentioned in the GPA dated 17.07.2002 and the certificate of authorization dated 21.06.2005 and also provided legal opinions to various departments of the defendant no.1. The plaintiff performed his work with utmost sincerity and honesty and he was also praised by the then OSD, legal department of the defendant no.1.
5. The grievance of the plaintiff is that despite the fulfillment of the requirements for the post of legal assistant the plaintiff was not promoted as legal assistant by the defendant no.1 company. On the contrary the defendant no.2 who was junior to the plaintiff was promoted to the post of legal assistant with effect from 01.12.2005 from the post of Junior Clerk by the defendant no. 1 and the plaintiff was kept on the same post of Junior Clerk on account of extraneous reasons. The plaintiff has further pleaded that despite promotion to the post of legal assistant the defendant no. 2 has not been doing the work of legal assistant whereas the plaintiff continued to perform legal work. Various Civil Suit no:672/07 Page No: 3/20 representations were made by the plaintiff however they were not considered by defendant no.1.
6. The plaintiff has pleaded that the action of the defendant no.1 in not promoting the plaintiff to the post of legal assistant and promoting his junior is illegal, arbitrary and violative of the equality principle.
7. The plaintiff has prayed for a declaration declaring that the plaintiff is entitled to promotion to the post of legal assistant w.e.f. 01.12.2005 alongwith all consequential benefits i.e. seniority, increments, allowances, pension benefits, etc. The plaintiff further prayed for a declaration that the plaintiff is also entitled to the salary, allowances and other benefits of the post of legal assistant w.e.f. 17.07.2002 as he has been discharging the functions of a legal assistant since 17.07.2002. The plaintiff has further prayed for a mandatory injunction directing the defendant no. 1 to provide the difference of the salary, allowances and other benefits of the period for which the plaintiff was discharging the functions of a legal assistant.
Civil Suit no:672/07 Page No: 4/20
8. The defendant no.1 filed its separate written statement and pleaded that the post of legal assistant is required to be fulfilled by transfer or deputation on transfer and it is not a promotional post as per the notified R & P Regulations and hence the present suit is liable to be dismissed. The defendant no. 1 denied that the plaintiff is eligible for the post of legal assistant. The defendant no. 1 denied that the plaintiff is entitled to wages at par with other legal assistants. The defendant no.1 further stated that plaintiff was working as AG-III and the salary of AG- III was being paid to him.
9. The defendant no. 1 further denied that the plaintiff was not promoted as legal assistant despite the fact that he fulfilled all the requirements. The defendant no.1 denied that the plaintiff's junior was promoted and the plaintiff was kept on the same post of junior clerk in order to harass and victimize him. The defendant no. 1 denied that after promotion to the post of legal assistant the defendant no. 2 is not doing the work of legal assistant. The defendant no.1 prayed for dismissal of the suit.
10. The defendant no. 2 filed his separate written statement Civil Suit no:672/07 Page No: 5/20 and pleaded that the defendant no.2 had completed his LL.B in the year 1996 and he had joined the legal department on 31.10.2000. The defendant no.2 further stated that as per the letter dated 28.08.2000 six vacancies were notified in the grade of legal assistant and six persons applied including the defendant no. 2 but only two were appointed.
11. The defendant no.2 further pleaded that he was transferred in the legal cell as Junior clerk on 31.10.2000 and worked there upto 13.03.2001 and afterwards he was transferred to the construction wing due to the illness of his mother who later on expired on 06.04.2002. The defendant no.2 made a representation vide letter dated 22.05.2002 for being appointed as legal assistant and he was recommended by AGM (Admn.) and on 01.12.2005 he was given the scale of legal assistant. The defendant no.2 denied the other allegations of the plaintiff and prayed for dismissal of the suit.
12. The Plaintiff filed replication and denied the averments of the written statements of the defendants and simultaneously reiterated and reaffirmed the contents of the plaint.
Civil Suit no:672/07 Page No: 6/20
13. Vide order dated 11.10.2006, on the basis of the pleadings of the parties the following issues were framed in this case:
1. Whether the plaintiff has not come before the court with clean hands and suppressed the material facts? OPD
2. Whether the plaintiff is entitled to decree of declaration? OPP
3. Whether the plaintiff is entitled to decree of mandatory injunction as prayed for? OPP
4. Whether the post of legal assistant is a transfer post or a deputation post? OPD1
5. Relief
14. In order to prove his case the plaintiff examined himself as PW-1 and deposed on the lines of the plaint. On the other hand the defendant no. 1 examined Sh. S.C. Talwar, OSD (HR) of the defendant no. 1 company as DW-1. The defendant no.2 examined himself as D2W1.
15. I have heard the Counsel for the parties and have given due consideration to the contentions and carefully perused the record. My issue-wise findings are as follows:
Civil Suit no:672/07 Page No: 7/20 Issue no.2 and 4
16. The question to be answered is as to whether the plaintiff is entitled to the relief of declaration as prayed for.
17. PW-1 has deposed on the lines of the plaint. PW 1 has deposed that plaintiff is that the plaintiff had joined the predecessor of the defendant no. 1 as a junior clerk on 06.06.1994 and during his service he completed his LL.B. with due permission. PW 1 has further deposed that a GPA dated 17.07.02 was executed for facilitating his appearance on behalf of the defendant no.1 in the courts and the duties mentioned in the said GPA were in fact the duties which were normally assigned to legal assistants. The said GPA is Ex. PW-1/1. On 21.06.2005 a certificate of authorization which is Ex. PW-1/2 was again issued in favour of the plaintiff to facilitate the performance of legal work. The plaintiff has contended that he was discharging his duties with utmost sincerity and to the satisfaction of his superiors. Various documents such as e mails, court orders, opinions, diary etc. which are Ex. PW ¼ to Ex. PW 1/10 have been placed on record by the plaintiff to establish that he was performing legal work in the defendant no. 1 company and was appearing before the courts.
Civil Suit no:672/07 Page No: 8/20
18. The plaintiff has pleaded that as per the policy of DVB the plaintiff was eligible for promotion to the post of legal assistant after 8 years of service as Junior Clerk since he possessed a law degree. The grievance of the plaintiff is that the defendant no. 2, who was junior to the plaintiff was promoted as legal assistant w.e.f. 01.12.2005 while the plaintiff was not at all considered.
19. On the other hand the defendant no. 1 has contended that the post of legal assistant is not a promotional post as per the applicable R & P Regulations and the said post is required to filled by transfer on deputation/transfer. DW-1 deposed in this respect in his examination in chief.
20. Therefore the question to be answered is as to whether the post of legal assistant was a promotional post and the plaintiff was wrongly not considered for promotion to the said post by the defendant no. 1.
21. DW 1 admitted in his cross examination that the letter Civil Suit no:672/07 Page No: 9/20 dated 01.03.2007 issued to the plaintiff mentioned the subject as " promotion to the post of legal assistant" . The said letter is Ex. PW 1/11. It is clearly reflected from the said letter that the defendant no. 2 was promoted to the post of Legal assistant w.e.f. 01.12.2005 on the recommendations of the DPC. DW 1 also stated that the work of the plaintiff and the defendant no.2 had been assessed by the Departmental Promotion Committee. He further stated that the defendant no. 2 was recommended for promotion for the post of legal assistant by the Departmental Promotion Committee. He further stated that he is not aware as to how many employees were considered by the DPC which recommended the defendant no.2 for promotion to the post of legal assistant.
22. The material on record further shows that the pay scale of legal assistant was greater than that of a junior clerk/AG-III as the pay scale of Legal assistant was Rs. 6,500 - Rs.10,900. In these facts and circumstances, and considering the fact that the post of legal assistant carried a higher pay scale and the recommendations to the post of legal assistant were to be made by Departmental Promotion Committee, the inevitable conclusion is that the post of legal assistant was in substance a Civil Suit no:672/07 Page No: 10/20 promotional post and was in fact being treated as a promotional post.
23. It has also been categorically admitted by the DW-1 in his cross examination that the defendant no.2 was recommended for promotion to the post of legal assistant by the Departmental Promotion Committee. No evidence has, however, been brought on record by defendants to establish that the plaintiff was also considered by the said Departmental Promotion Committee. The defendant no. 1 was in possession of the said record however since the same has not been produced by the defendant no. 1 therefore adverse inference ought to be drawn against the defendant no. 1 on that count. Thus there is no evidence on record to show that the plaintiff was considered and found not suitable for promotion by the Departmental Promotion Committee.
24. There is no dispute about the fact that on the basis of length of service the plaintiff was senior to the defendant no. 2. It is therefore clear that the plaintiff who was admittedly senior to the defendant no. 2 on the basis of his length in service as a junior clerk and who also possessed law degree was entitled to be considered by the Departmental Promotion Committee in case the defendant no.2 was Civil Suit no:672/07 Page No: 11/20 considered for the same.
25. There is no evidence as to the incompetence of the plaintiff. In fact his competence is established from the fact GPA dated 17.07.2002 Ex. PW-1/1 was executed in favour of the plaintiff authorizing him to discharge certain duties which are normally assigned to legal assistants even though he was only a clerk. DW-1 has admitted in his cross examination that since the date of execution of GPA Ex. PW-1/1 the plaintiff has been doing the tasks as mentioned in the said GPA and at the time of issuance of the said GPA the plaintiff was having LL.B. degree and further that the duties mentioned in the GPA Ex. PW-1/1 are the duties of a legal assistant. Thus, the plaintiff has been consistently performing the duties in terms of the GPA Ex. PW-1/1 in the legal department.
26. On the contrary the defendant no. 2 who was promoted to the post of legal assistant w.e.f. 30.11.2005 has categorically admitted in his cross examination that since April 2001 till 30.11.2005 he had not worked in the legal department. He further stated that even after being promoted as legal assistant w.e.f. 01.12.2005 he never appeared before Civil Suit no:672/07 Page No: 12/20 any court and he had been working in the operations and maintenance department till date.
27. The net result is that the post of legal assistant was in substance and was being as such treated as a promotional post. The plaintiff was entitled to be considered by the Departmental Promotion Committee which recommended the promotion of the defendant no.2. The plaintiff was however not considered by the said Departmental Promotion Committee although the plaintiff was eligible for being promoted as legal assistant alongwith the defendant no.2 and was admittedly senior to the defendants no. 2 on the basis of length of service. There is nothing on record to establish that the plaintiff was found not competent or not suitable for being promoted as Legal Assistant. On the contrary the plaintiff has been discharging the duties which are normally looked after by Legal Assistants.
28. Article 14 of the Constitution of India embodies the constitutional guarantee of equality. Article 16(1) of the Constitution of India specifically provides that there should be equality of opportunity for all persons in matters relating to employment or appointment to any Civil Suit no:672/07 Page No: 13/20 post under the State. The matters relating to employment or appointment to any post are wide enough to include matters of promotion and inequality of opportunity for promotion as between citizen's in the same grade may therefore be an infringement of Article 16. In this respect reference may be made to the judgment titled as Kishori Mohanlal Bakshi v. Union of India, AIR 1962 SC 1139. The defendant no. 1 is also obliged to follow this equality principle.
29. In this respect reference may be made to the judgment of the Hon'ble Supreme Court titled as State of Haryana v. Rameshwar Dass reported as (2009) 7 SCC 400 wherein it was held:
" .......15. It was also observed by this Court in the case of Brooke Bond India (P) Ltd. v. Workmen, (1963) 1 LLJ 256, that at a given time, if more than one person are eligible for promotion, seniority should be taken into account and should prevail unless the eligible persons are not equal in merit. ......"
" .....17. This Court in the case of State of U.P. v. Dinkar Sinha, (2007) 10 SCC 548, held that the seniority may not be a fundamental right, but is a civil right. Infringement of the said right would be permissible only if there exists any rules validly framed under a statute and/or the proviso Civil Suit no:672/07 Page No: 14/20 appended to Article 309 of the Constitution of India.
18. The respondent in the present case was in no way at fault. He had served faithfully in various capacities without any blemish from 27.7.1984. The treatment meted out to the respondent can be characterized as discriminatory. Thus, appellants should have promoted the respondent before promoting other employees according to the seniority of the employees........" .
30. Reference may also be made to the judgment titled as Raghubir Singh v. Union of India reported as 2007 II AD (Delhi) 534 (DB) in this respect. In the said case the contention of the petitioner was that even though he was eligible, his case was not considered by the DPC and his juniors were promoted. The Hon'ble High Court of Delhi held that the DPC prepared the selection panel contrary to law and procedure and held that the petitioner was also meritorious in comparison with those promoted. The Hon'ble High Court of Delhi directed the respondents to promote the petitioner and grants him consequential benefits including arrears of pay.
31. Thus as far as the contention of the plaintiff that he is Civil Suit no:672/07 Page No: 15/20 entitled to be promoted to the post of legal assistant w.e.f. 01.12.2005 there is substance in his contention. The plaintiff was equally eligible for being promoted to the post of legal assistant w.e.f. 01.12.2005 when his junior was promoted to the said post. Nothing has been established by the defendant no.1 to establish the incompetence of the plaintiff. Infact after final arguments the defendant no.1 placed on record a document which shows that now the plaintiff has been promoted to the post of Assistant legal officer. This shows that there is no issue with respect to the efficiency and competence of the plaintiff. The net result is that the plaintiff was also entitled to be promoted along with his junior namely the defendant no. 2 w.e.f. 01.12.2005. The suit is within limitation.
32. However, the plaintiff cannot be said to be entitled to the salary and other allowances of a legal assistant from 17.07.2002 as he has been discharging the functions which might be assigned to legal assistants. The fact of the matter is that the plaintiff was working as AG-III in the legal department and he was never directed to officiate as a legal assistant. Merely because he was discharging some functions which are also discharged by legal assistants he cannot be said to be Civil Suit no:672/07 Page No: 16/20 entitled for the salary and allowances admissible to a legal assistant. There is no bar in directing a person serving as AG III to appear before the court for representing the defendant no. 1 company. Despite the fact that certain functions may overlap still the hierarchy of posts is to be maintained. The plaintiff is therefore entitled to the salary and allowances of the post which he held during this period.
33. The plaintiff is therefore entitled to a declaration that he was entitled to be promoted to the post of legal assistant in the pay scale Rs. 6,500 - Rs.10,900 w.e.f. 01.12.2005 with all other consequential benefits i.e. seniority, increments, difference of salary and pension benefits.
34. This issue is therefore decided in favour of the plaintiff and against the defendants in these terms.
Issue No. 3
35. I have already held that the plaintiff is entitled to a declaration that he was entitled to be promoted to the post of legal assistant w.e.f. 01.12.2005 with all other consequential benefits i.e. Civil Suit no:672/07 Page No: 17/20 seniority, increments, difference of salary and pension benefits. After promotion to the post of legal assistant w.e.f. 01.12.2005 the plaintiff would be necessarily entitled to the benefits attached to the said post.
36. In this respect reference may be made to the judgment of the Hon'ble Supreme Court titled as Haryana Vidyut Parsaran Nigam Limited v. Gulshan Lal reported as (2009) 13 SCC 354.
37. The plaintiff is therefore also entitled to a mandatory injunction directing the defendant no.1 to promote the plaintiff to the post of legal assistant w.e.f. 01.12.2005 and give and pay all consequential benefits of increments, seniority, difference of salary on account of higher pay scale, etc. to the plaintiff.
38. This issue is therefore decided in favour of the plaintiff and against the defendants.
Issue no.1
39. The onus to prove this issue was upon the defendant. There is no evidence on record to show that the plaintiff has not come before Civil Suit no:672/07 Page No: 18/20 the court with clean hands or has suppressed material facts. In fact the claim of the plaintiff has been found to be a genuine claim.
40. Hence this issue is decided in favour of the plaintiff and against the defendants.
RELIEF
41. A decree of Declaration is granted in favour of the plaintiff and against the defendants declaring that the plaintiff was entitled to be promoted to the post of legal assistant in the pay scale Rs. 6,500 - Rs. 10,900 w.e.f. 01.12.2005 with all other consequential benefits i.e. seniority, increments, difference of salary and pension benefits. A decree of mandatory injunction is further passed in favour of the plaintiff directing the defendant no. 1 to promote the plaintiff to the post of legal assistant w.e.f. 01.12.2005 and give and pay all consequential benefits of increments, seniority, difference of salary on account of higher pay scale, etc. to the plaintiff.
42. The suit of the plaintiff is decreed in aforesaid terms against the defendant no. 1. The plaintiff shall also be entitled for costs Civil Suit no:672/07 Page No: 19/20 of the suit from the defendant no. 1. Decree Sheet be accordingly prepared. File be consigned to Record Room thereafter.
Announced in the open (SAURABH KULSHRESHTHA)
Court on 25.08.2012 CCJ/ARC(East)
(Judgment contains 20 pages.) KARKARDOOMA COURTS,
DELHI
Civil Suit no:672/07 Page No: 20/20