Central Administrative Tribunal - Delhi
Mr.Ajay Kumar vs The Chief Executive Officer on 4 July, 2014
CENTRAL ADMINSITRATIVE TRIBUNAL PRINCIPAL BENCH O.A.NO. 669 OF 2013 New Delhi, this the 4th day of July, 2014 CORAM: HONBLE SHRI ASHOK KUMAR, ADMINISTRATIVE MEMBER AND HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER .. Mr.Ajay Kumar, Executive Engineer (Civil), Delhi Jal Board, Presently posted at OHT Ashok Vihar, North West III, S/o Sh.Sunahri Lal, R/o A-71, Priyadarshani Vihar, New Delhi 92 .. Applicant (By advocate : Shri V.C.Gautam) Vs. 1. The Chief Executive Officer, Delhi Jal Board, Varunalaya Phase II, New Delhi. 2. The Asst. Commissioner (T), Delhi Jal Board & Others, Varunalaya Phase II, Karole Bagh, New Delhi .. Respondents (By advocate: Shri N.K.Pandey) . ORDER SHRI RAJ VIR SHARMA, MEMBER(J):
In this Original Application, the applicant has prayed for the following relief:
i) To set aside the order dated 16/01/2013 & 29/01/2013 issued by the Assistant Commissioner and direct the respondent(s) to reckon the promotion of the applicant and seniority with consequential benefits since 26/05/1997 in order to secure and protect the natural law of justice.
To allow the O.A. with compensation in favour of the applicant.
To grant any other relief which this Honble Court deems fit and proper in the facts and circumstances of case may be given in favour of applicant and against the respondent(s).
2. Brief facts of the applicants case, as projected in the O.A., run thus: The applicant, who belongs to Scheduled Caste category, was appointed as Assistant Engineer (Civil) on 4.8.1989 in DWS & SDU (MCD) and thereafter he was continued to work in Delhi Jal Board. On some vague and frivolous allegations, a charge sheet was issued to him on 26.10.1994. During pendency of the disciplinary proceeding, two junior most officials, namely, S/Shri Vijay Singh and Mool Chand were given current duty charge of the post of Executive Engineer (Civil), vide office order No.166, dated 2.9.1996 (Annexure A). The applicant was fully exonerated of the charge, vide order No.83, dated 6.9.1996 (Annexure B). Some Assistant Engineers (Civil), belonging to General Category, filed WP(C ) No.3482 of 1996 before the Honble High Court of Delhi questioning promotion of SC/ST category Assistant Engineers (Civil) to the post of Executive Engineer (Civil) in excess of the quota meant for them. The Honble Court, vide interim order dated 13.9.1996 (Annexure C), directed that till the next date of hearing(13.11.1996), the respondents shall not make any promotion/appointment in the cadre of Executive Engineer (Civil) in excess of the quota prescribed for SC and ST categories under the rules/instructions issued by the Government from time to time.
2.1 The respondents, vide order dated 16.6.1997 (Annexure D), promoted 12 Assistant Engineers (Civil), all belonging to General Category, to the post of Executive Engineer (Civil) on ad hoc basis and granted them financial benefits with effect from 26.5.1997.
2.2 The applicant made representation dated 19.6.1997 (Annexure J) to the respondents, wherein he pointed out that according to 40-point roster, 1 SC and 1 ST candidates should have been promoted to the post of Executive Engineer (Civil) on ad hoc basis and thus, he should have so been promoted against one SC quota vacancy and granted consequential financial benefits w.e.f. 26.5.1997.
2.3 The applicant was given current duty charge of the post of Executive Engineer (Civil) on 3.1.1997, vide order No.02 dated 3.1.1997 (Annexure G). But the respondents, vide order dated 10.1.1997 (Annexure H) kept the said order dated 3.1.1997 in abeyance.
2.4 The applicant was again given current duty charge of Executive Engineer (Civil) on 4.8.1997. He was promoted to the post of Executive Engineer (Civil) on ad hoc basis with effect from 13.11.2001 and to the post of Executive Engineer (Civil) on regular basis with effect from 4.7.2003.
2.5 The applicants grievance is that he should have been promoted to the post of Executive Engineer (Civil) on ad hoc basis with effect from 26.5.1997. In support of his claim, the applicant has stated that two junior officials, namely, S/Shri R.S.Negi and S.L.Meena were given promotion to the post of Executive Engineer (Civil) w.e.f 3.6.1999, vide order dated 24.7.2006.
2.6 With reference to the applicants representation dated 11.10.2010 for advancement of his ad hoc promotion from 13.11.2001 to 26.5.1997, the respondents, vide communication dated 27.10.2010 (Annexure L), rejected his claim.
2.7 In the meantime, WP (C ) No.3482 of 1996 was transferred from Honble High Court of Delhi to this Bench of the Tribunal and registered as TA No.752 of 2009 (S.K.Bansal and others v. DJB/MCD). Recording the submission of the learned counsel appearing for the applicants that in view of the Honble Supreme Courts decision in M.Nagaraj v. UOI, 2010(12) SCC 826 the TA became infructuous, this Tribunal dismissed the same as having become infructuous.
2.8 The applicant made further representation dated 29.8.2011 (Annexure N) claiming promotion, seniority and consequential benefits with effect from 26.5.1997. The respondents, vide order dated 16.1.2013 (Annexure O), reiterated their decision rejecting the applicants claim. Hence the applicant has filed the present O.A.
3. Opposing the O.A., the respondents have filed a counter reply. It is stated by the respondents that the applicant raised the issue of retrospective promotion on ad hoc basis after a gap of approximately 10 years, i.e., on 11.10.2010 and therefore, his claim for granting him ad hoc promotion w.e.f. 26.5.1997 to the post of Executive Engineer (Civil) is barred by limitation. As per the post based roster, out of 53 posts of Executive Engineer (Civil), 07 posts went to the SC quota, whereas 10 posts were filled by SC candidates and had an excess representation of 03 SC candidates at the relevant time. There was no post available in SC quota for effecting ad hoc promotion at the relevant point of time and therefore, the applicant could not be promoted against SC quota on ad hoc basis. It is also stated by the respondents that none of the juniors of the applicant was promoted on ad hoc or regular basis bypassing the applicant. It is further stated that the applicant was promoted as and when vacancies arose and that the applicant was not deprived of his legitimate right because on availability of the posts earmarked for SC candidates, the applicant was duly promoted as Executive Engineer (Civil) on ad hoc basis with effect from 13.11.2001 and on regular basis with effect from 04.07.2003. As per the instructions of the DoP&T, vide Annexure R-1, the promotions will have only prospective effect even in the cases where the vacancies relate to earlier years. It is further stated that even though only 10 roster points (7 for SC and 3 for ST) were earmarked for reserved category candidates as per the reservation policy enforced at that time, there were 10 Executive Engineers (C),belonging to SC category, working on regular basis, and 2 SC and 2 ST candidates were working on ad hoc basis. The post based roster was implemented from 13.9.1996 although specific O.M. was issued by the DoP&T on 2.7.1997. It is further stated that S/Shri R.S.Negi and S.L.Meena were ST candidates and were promoted to the post of Executive Engineer (Civil) on regular basis against the posts earmarked for ST candidates with effect from 3.6.1999 and therefore, the claim of the applicant that he being senior to the said S/Shri Negi and Meena, should have been given ad hoc promotion w.e.f. 26.5.1997, is untenable.
4. The applicant has filed a rejoinder reply refuting the stand taken by the respondents. It is asserted by the applicant that the respondents only for the first time communicated their decision on 27.10.2010 rejecting his claim for promotion with effect from 26.5.1997 and therefore, the O.A. is not barred by limitation in as much as the cause of action arose only on 27.10.2010. He has filed note sheets of the relevant files dated 10.1.1997, 23.12.1996, 31.12.1996, 6.1.1997 and 18.3.1997, along with his rejoinder as Annexures A1 (Colly.) and A2, in support of his claim that he should have been granted ad hoc promotion against the available vacancy for SC in terms of 40-point roster while the respondents issued order dated 16.6.1996 granting ad hoc promotion to 12 Assistant Engineers (Civil) to the post of Executive Engineer (Civil) on ad hoc basis.
5. We have perused the pleadings and heard the learned counsel appearing for the parties.
6. As the respondents have raised the question of limitation, we have to first deal with and decide the same before proceeding to consider other issues involved in the O.A. It is seen from office order no.95 dated 16.6.1997 (Annexure D) that 12 Assistant Engineers (Civil) were promoted to the post of Executive Engineer (Civil) on ad hoc basis for a period of one year in the first instance or till such time the posts were filled on regular basis through UPSC. Being aggrieved thereby, the applicant made representation dated 19.6.1997 (Annexure J) to the respondents, wherein he pointed out that according to 40-point roster, 1 SC and 1 ST candidates should have been promoted to the post of Executive Engineer (Civil) on ad hoc basis and thus, he should have so been promoted against one SC quota vacancy and granted consequential financial benefits w.e.f. 26.5.1997. If the respondents failed to decide his claim as raised in the representation dated 19.6.1997 (Annexure J) within a period of six months from the date of the said representation, the applicant should have approached the Tribunal within a period of one year from the date of expiry six months from the date of the said representation dated 19.6.1997. But the applicant did not approach the Tribunal. The applicant was given current duty charge of Executive Engineer (Civil) on 4.8.1997. He was promoted to the post of Executive Engineer (Civil) on ad hoc basis with effect from 13.11.2001 and on regular basis with effect from 4.7.2003. It transpires from the order dated 27.10.2010 (Annexure L) that the applicant, vide his representation dated 11.10.2010 claimed ad hoc promotion to the post of Executive Engineer (Civil) with effect from 26.5.1997 against a reserved vacancy and the respondents rejected his claim by the said order dated 27.10.2010. The applicant has not filed copy of his representation dated 11.10.2010(ibid). Here if the applicant had any grievance against the said order dated 27.10.2010 (Annexure L), he should have approached the Tribunal within a period of one year from 27.10.2010. But instead of doing that, the applicant once again made a representation dated 29.8.2011 (Annexure N) claiming ad hoc promotion to the post of Executive Engineer (Civil) w.e.f. 26.5.1997. The respondents, vide communication dated 16.1.2013 (Annexure O), once again rejected the applicants claim. Similar communication was also issued by the respondents to the applicant, vide letter dated 29.1.2013 (Annexure P). On the basis of these communications dated 16.1.2013 and 29.1.2013 (ibid), the learned counsel for the applicant submits that the cause of action arose on 16.1.2013 and 29.1.2013 and the OA filed on 21.2.2013 is within the period of limitation prescribed under the Administrative Tribunals Act, 1985.
7. In S.S.Rathore v. State of Madhya Pradesh, AIR 1990 SC 10, the Honble Supreme Court held thus:
We are of the view that the cause of action shall be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority where a statutory remedy is provided entertaining the appeal or representation is made and where no such order is made, though the remedy has been availed of, a six months' period from the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have first arisen. We, however, make it clear that this principle may not be applicable when the remedy availed of has not been provided by law. Repeated unsuccessful representations not provided by law are not governed by this principle. It is appropriate to notice the provision regarding limitation under S. 21 of the Administrative Tribunals Act. Sub-section (1) has prescribed a period of one year for making of the application and power of condonation of delay of a total period of six months has been vested under sub-section (3). The Civil Court's jurisdiction has been taken away by the Act and, therefore, as far as Government servants are concerned, Article 58 may not be invocable in view of the special limitation. Yet, suits outside the purview of the Administrative Tribunals Act shall continue to be governed by Article 58. It is proper that the position in such cases should be uniform. Therefore, in every such case only when the appeal or representation provided by law is disposed of, cause of action shall first accrue and where such order is not made, on the expiry of six months from the date when the appeal was filed or representation was made, the right to sue shall first accrue. Submission of just a memorial or representation to the Head of the establishment shall not be taken into consideration in the matter of fixing limitation. ..
8. In Union of India and others Vs. A.Durairaj (dead) by LRs, (2010) 14 SCC 389, the Honble Supreme Court, in paragraphs 13,14 and 16 held thus:
13. It is well settled that anyone who feels aggrieved by non-promotion or non-selection should approach the court/tribunal as early as possible. If a person having a justifiable grievance allows the matter to become stale and approaches the court/tribunal belatedly, grant of any relief on the basis of such belated application would lead to serious administrative complications to the employer and difficulties to the other employees as it will up set the settled position regarding seniority and promotions which has been granted to others over the years. Further, where a claim is raised beyond a decade or two from the date of cause of action, the employer will be at a great disadvantage to effectively contest or counter the claim, as the officers who dealt with the matter and/or the relevant records relating to the matter may no longer be available. Therefore, even if no period of limitation is prescribed, any belated challenge would be liable to be dismissed on the ground of delay and laches.
14. This a typical case where an employee gives a representation in a matter which is stale and old, after two decades and gets a direction of the Tribunal to consider and dispose of the same; and thereafter again approaches the Tribunal alleging that there is delay in disposal of the representation (or if there is an order rejecting the representation, then file an application to challenge the rejection, treating the date of rejection of the representation as the date of cause of action).
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16. We are therefore of the view that the High Court ought to have affirmed the order of the Tribunal dismissing the application of the respondent for retrospective promotion from 1976, on the ground of delay and laches.
9. Keeping in mind the law laid down by the Honble Supreme Court in the above cases, we have considered the rival contentions, and we are of the view that the present O.A. is barred by limitation.
10. Coming to the merits of the case, it is asserted by the respondents that in view of the judgment of the Honble Supreme Court, the erstwhile DWS & SDU implemented the post based rosters from 13.9.1996. As per the post based roster, out of 53 posts of Executive Engineer (Civil), 07 posts went to the share of SC whereas 10 posts were filled by SC candidates and thus there was an excess representation of 03 by SC candidates at that time. It is further asserted by the respondents that even though 10 roster points (7 for SC and 3 for ST) were earmarked for reserved category candidates as per reservation policy in force at the relevant time, there were 10 Executive Engineers (Civil), belonging to SC category, working on regular basis, and 2 SC and 2 ST candidates were working on ad hoc basis and therefore, there was no post available in SC quota at the relevant time for giving ad hoc promotion to the applicant. Though the applicant has refuted these assertions of the respondents, yet he has failed to demonstrate as to how one post of Executive Engineer (Civil) was available for giving him ad hoc promotion. It is the contention of the applicant that when 12 Assistant Engineers (Civil) were promoted to the post of Executive Engineer (Civil) on ad hoc basis, vide order dated 16.6.1997, the 40-point roster scheme was in force and therefore, the applicant should have been so promoted inasmuch as the post based roster came into force w.e.f. 2.7.1997.
11. In R.K.Sabharwal and others v. State of Punjab and others, AIR 1995 SC 1371 (decided by the Constitution Bench of the Honble Supreme Court on 10.2.1995), the Honble Apex Court held that the reservation of jobs for the backward classes SC/ST/OBC should apply to posts and not to vacancies. The Honble Court further held that the vacancy based rosters can operate only till such time as the representation of persons belonging to the reserved categories, in a cadre, reaches the prescribed percentages of reservation, and thereafter the rosters cannot operate and vacancies released by retirement, resignation, promotion, etc., of the persons belonging to the general and the respective categories are to be filled by appointment of persons from the respective category so that the prescribed percentage of reservation is maintained. The law declared by the Honble Supreme Court is the law of the land and is binding on all courts within the territory of India.
12. Based on the decision in R.K.Sabharwals case (supra), the DoP&T, however, issued O.M. dated 2.7.1997 replacing the vacancy based rosters by post based rosters although the said decision was rendered by the Honble Apex Court on 10.2.1995. The contention of the applicant is that as on 16.6.1997 the vacancy based roster was in force and therefore, when 12 Assistant Engineers (Civil), belonging to general category, were promoted to the post of Executive Engineer (Civil) on ad hoc basis, vide order dated 16.6.1997, the applicants claim for ad hoc promotion to the post of Executive Engineer (Civil) with all consequential benefits, should not have been rejected by the respondents, more particularly when filling up of two vacancies meant for SC category was kept in abeyance due to the interim order passed by the Honble High Court. The respondents have explained in their counter reply that two SC category candidates, namely, Sh. Sher Singh and Sh.Bhagmal Singh were promoted as Executive Engineer (Civil) from the post of Assistant Engineer (Civil), vide office order No.201 dated 17.10.1996 against vacancies reserved for SC/ST, in which one post was reserved for SC category candidate and the other post was reserved for ST category.Due to non-availability of ST candidate even in the extended zone of consideration, the ST vacancy was inter-changed by SC category candidate and hence 2 SC category candidates were promoted against the said two vacancies. The said two SC category candidates were much senior to the applicant. Their positions in the seniority list were at sl.nos. 23 and 24 respectively, whereas the applicants position was at sl.no. 62. Except making a bland denial of these assertions, the applicant has not placed before this Tribunal any material in support of his plea. In this view of the matter, we do not find any substance in the said contention of the applicant.
13. The next contention of the applicant is that he was entitled to be promoted to the post of Executive Engineer (Civil) with effect from 26.5.1997 because two of his juniors, namely, S/Shri R.S.Negi and S.L.Meena were promoted to the post of Executive Engineer (Civil) with effect from 3.6.1999, vide order dated 24.7.2006 (Annexure K). The respondents, on the other hand, have contended that the said S/Shri Negi and Meena, who belong to ST community, were promoted to the post of Executive Engineer (Civil) against the two posts earmarked for ST category. The applicant has not specifically denied the said assertion of the respondents that S/Shri Negi and Meena, belonging to ST category, were promoted against the vacancies earmarked for ST category. In view of this, we do not find any merit in the said contention of the applicant.
14. In the light of the above discussions, the inescapable concussion that could be arrived at is that the present Original Application not only suffers from delay and laches, but also sans merit. In the circumstances, the O.A. is dismissed. No costs.
(RAJ VIR SHARMA) (ASHOK KUMAR) JUDICIAL MEMBER ADMINISTRATIVE MEMBER AN