Central Administrative Tribunal - Delhi
H.C. Sharma vs Lt. Governor on 30 April, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. 838/2008
M.A.941/2008
M.A.1741/2008
New Delhi this the 30th day of April, 2009
Honble Mr. Justice M. Ramachandran, Vice Chairman (J)
Honble Mr. Shailendra Pandey, Member (A)
1. H.C. Sharma,
S/o late J.R. Sharma
2. Rajender Singh Samant,
s/o late Diwan Singh Samant
3. Magan Lal
S/o Shri Sant Lal
4. Surinder Sharma
s/o late Gian Chand
5. Ramesh Chand Arora
s/o late Shoba Ram Arora
6. Ashok Sharma
S/o late Tilak Raj Sharma
7. P.S. Sharma
S/o Shri Pyare Lal Sharma
8. Tej Pal Singh
s/o Shri Nepal Singh
9. S. Siva Ramakrishnan
S/o S. Shen Baga Raman
10. Umesh Kumar
s/o late H.P. Tyagi
11. Bharat Singh Bisht
s/o late Khushahal Singh
12. Nandan Singh
s/o late Firoj Singh
13. Pramod Kumar Sharma
s/o Shri G.S. Sharma
14. Pawan Kumar Sharma
s/o Late Hira Mani Sharma
15. S.K. Dikshit
s/o Late M.R. Dikshit
16. Sunil Kumar Sinha
s/o late S.N. Sinha
17. Rattan Lal
s/o Shri Chuni Lal
18. Mani Ram Badgujar
s/o late Budh Ram Badgujar
19. Uday Bhan
s/o Sh. Mohkam Singh
(All the applicants working as UDCs
in Delhi Development Authority, Vikas
Sadan, INA, New Delhi). Applicants.
(By Advocate Shri A.K. Bhat)
Versus
1. Lt. Governor,
Govt. of NCT of Delhi,
New Delhi through Vice Chairman, DDA,
Vikas Sadan, INA, New Delhi.
2. Delhi Development Authority,
through its Vice Chairman,
Vikas Sadan, INA,
New Delhi.
3. Commissioner (Personnel),
Delhi Development Authority,
Vikas Sadan, INA,
New Delhi.
4. Shri Ram Singar,
S/o Shri Shanta Ram
5. Shri B.L. Gupta,
S/o late Shri Bhagwat Sarup
6. Sh. Kundan Singh Shah,
S/o Shri Raje Singh Shah
7. Shri Bal Kishan,
S/o Shri Ram Chander
8. Shri Dinesh Singh,
s/o Shri Umesh Singh
9. Shri Prem Ballabh Tiwari,
s/o Shri Dhani Ram Tiwari
10. Shri Chander Mohan Grover,
s/o Late Shri K.C. Grover
11. Shri K.C. Sharma,
s/o Shri J.P. Sharma
12. Shri Ram Nihor Pal,
s/o late Shri Raghunandan Pal
13. Shri Krishan Lal,
s/o Shri Bahadur Chand
14. Shri Thakur Prasad Pandey,
S/o Shri Satya Narayan Pandey
15. Shri Harjeet Singh,
S/o Late Sh. Mohinder Singh
16. Smt. Shashi Negi,
w/o Shri Prakash Negi
17. Shri Vinay Kumar,
s/o late Shri H.K. Sharma
18. Shri Kamal Kishore,
S/o Shri Ameer Nath
19. Shri Om Praksh Harit
s/o late Shri Bijay Singh
Respondent Nos. 4 to 19 working
as UDCs/promoted as Assistants
in DDA, Vikas Sadan, INA, New Delhi.
Service to be effected through
Respondent No. 3. Respondents.
(By Advocates Shri Rajinder Khatter for official respondents, Shri
Manjeet Singh Reen for private respondents)
O R D E R
Honble Mr. Justice M. Ramachandran, Vice Chairman (j).
This is a joint application submitted by 19 officers working as Upper Division Clerks in the Delhi Development Authority. As per the governing rules, they could have aspired for promotion to the posts of Assistant. A copy of the Recruitment Rules is Annexure A. Part-II Section 3 thereof deals with the finer details concerning the Recruitment Regulation for the posts of Assistant. The method of recruitment is shown as promotion, and the vacancies are to be filled up 50% by promotion and 50% by way of departmental examination. It is also clarified that 50% by way promotion is from Upper Division Clerks having five years of service and 50% by way of departmental examination from UDCs with five years of service. It is possible to note that the Regulation as above forms part of the revised regulations issued by the Delhi Development Authority, in exercise of powers conferred on it by Section 57 of the Delhi Development Act, 1957 read with Rule 4 of the Delhi Development (Miscellaneous) Rules, 1959. The regulations were issued superseding Notification dated 23.09.2005.
2. Respondents 1 to 3 represent the second respondent Delhi Development Authority. The first and third respondents, respectively, are (1) Lt. Governor (2) Commissioner of Personnel. At the time when the Original Application had been filed, select list of persons who were to be promoted had come, and 16 persons, who were nominated, have been impleaded as respondents 4 to 19. Learned counsel appearing for the applicant submits that there was no transparency in the matter of selection, and the conferment of benefits on the private respondents is pure arbitrariness and it could not at all be considered a selection on merits as alone might have been contemplated by the rules. As interim measure, Tribunal had passed an order that any appointments made from the select list will be subject to further orders, which are to be passed in the Original Application.
3. We had heard Shri A.K. Bhat, counsel for the applicant and Shri Khatter, counsel appearing for the official respondents. Mr. Manjeet Singh Reen entered appearance on behalf of the private respondents. It is revealed that a written test had been held duly on 14.07.2007. There was practical test in the matter of computer affinity and equal opportunity had been given to the participants to acclimatize themselves with the computers. Tests have been held on various dates. According to the applicants, 232 candidates had been called up to sit for the test but even after months, results were not coming which had necessitated a complaint to be lodged in the matter. But all of a sudden on 29.02.2008, an order had been issued by the Commissioner of Personnel, notifying as, The following Upper Division Clerks are declared successful in the written departmental examination to the post of Assistant held on 14.7.2007 taking into consideration the date of their seniority in the present grade. Their empanelment/promotion will be considered only in the event of clear VCR. In other words, no disciplinary proceedings/ACB/CBI/criminal cases should be pending against them to be eligible for empanelment/promotion. This is Annexure `H. Names of respondents 4 to 19 had been given in the order, who were to secure appointment, against 50% quota reserved for promotion by way of departmental examination.
4. It is the case of the applicants that after participating in the test they were expecting to get promotion in view of the good performance given. But they found to their dismay that senior colleagues alone had been promoted. This had created a ruffle, and it is stated that representations had been submitted pointing out to the irrationality in the approach. Applicants felt that a competitive test is held as per the Recruitment Regulations, for selecting persons who were more meritorious, and the element of seniority has no relevance. According to them, that is the principle indulging LDCE. The Original Application has been filed urging that the parameters now employed do not conform to principles of equality or equity. The relief prayed for is to quash Annexure `H list, referred to earlier, and also to set aside the promotion order Annexure `J which had been issued in line with Annexure `H. Further, directions prayed for were that the respondents were to arrange the names of the successful candidates in the order of merit and for promoting the persons on the basis of merit and not on the basis of seniority.
5. Respondents have filed counter affidavit pointing out the request as above urged, cannot have any legal basis. Mr. Khatter submits that the respondents have taken notice of the scope as well as purport of the Regulation and had approached the issue dispassionately in line with the procedure that was generally followed in matters of promotion. Applicants, therefore, could not have any legal claims for upsetting the selection nor the promotion. They have hardly any cause of action. The private respondents also had supported the official respondents, pointing out that the matter has been duly approached as per the norms in force following the guidelines of the Regulation and, therefore, the Original Applications were misconceived.
6. Although Mr. Khatter had raised a preliminary objection that the applicants were incompetent to file the writ petitions, after having taken part in the selection on the strength of certain decisions starting from Madan Lal & Ors. Vs. State of J&K (1995 (2) SCC 486) as well as University of Cochin Vs. N.S. Kanjoon Jamma and Ors. (1997 (2) SLR 606), we do not think the principles as highlighted in the above decisions have any application here. Even after participating in the selection process, it would have been possible for the applicants to challenge the final outcome or to contend that the selection was not carried out as envisaged by the Regulations and such rights could not have been possible to be denied to them. In fact, only the applicants and participants to the selection could have had any such rights at all, as a third party could not have had any locus standi to challenge the selection as anybody else would have been rank outsiders, unconcerned or unaffected by the selection.
7. Although preliminary objection as above is to be overruled, we do not think the respondents have committed any error in coming up with the rank list as has now been published and later put to operation. It is evident that what has been done is to prescribe a cut off in marks, by classifying persons who participated in the selection to two categories i.e. a group who had passed and the group which had failed to secure the minimum marks. After preliminary weeding the respondents have arranged the names of those who have passed the test on the basis of their substantial seniority. Appointment had been given to the senior most persons, also taking notice of the requirement for accommodating SC and ST candidates. The applicants may be justified in contending that a person, who had obtained lesser marks in the test, now stands conferred with selection overlooking another who had secured higher marks. But this by itself would not have rendered the exercise arbitrary or violative of the equality clauses.
8. We may closely look into the Regulations once again in this context. The stipulation in the Regulation is that 50% of the posts available are to be filled up exclusively by promotion. This position is not difficult to be comprehended since the promotion is to be conferred on the basis of seniority. The next 50% posts are to be filled up by way of departmental examination. The rule provides nothing more by way of guidance. It is neither stated that promotion is on the basis of the rank secured by the participants nor is it stated that promotion would be given to persons who had secured the minimum benchmark prescribed by the appointing authority, but who were seniors. Insofar such details had not been prescribed by the Regulations, we do not think it would have been possible for applicants to contend that there was arbitrariness by the appointing authority by adopting the latter course, viz by prescribing cut off marks for adjudging a pass in the departmental examination and thereafter going for arranging the name of persons on the basis of their seniority position in the feeder category.
9. So long as the applicants cannot point out that the rule unambiguously stipulated for promoting persons who participated in the selection on the basis of the rank list prepared on the basis of the performance, it may not be possible for us to enforce their rights as highlighted.
10. It has been clarified by the respondents that by Resolution No. 48 of 2005, a criterion had been prescribed for preparing result of departmental examination. Of course, it was in the matter of selection pertaining to the post of Assistant Director. The criterion though not drafted in a satisfactory language, we would extract the stipulation, which has been pressed into service as following:
The seniority of the pass candidates in the Assistant Director grade will be fixed among the passed candidates and then their names will be placed after the last Assistant Director promoted earlier.
11. Learned counsel for the respondents submits that the above stipulation in fact meant that the select list is to be prepared taking notice of the element of seniority. This has been decided to be followed by the competent authority. The meaning of the expression in the Regulation was that only a cut off mark had been prescribed and the candidates who got across were to be arranged on the basis of their position of seniority. For one thing at least, it is suggested that consistency is attempted to be followed by the Institution.
12. On our direction, the Standing Counsel for the respondents had made available the basic files relating to selection. It is seen that acceptable level of care and caution has been taken by the respondents in the matter of prescribing the test with reference to the parameters to be employed. There do not appear to be any motives for overreaching the applicants, and they have been denied opportunity of promotion only for the reason that they are juniors as between persons who had passed in the selection. On the terms of regulation, we feel, it would not have been possible for the applicants to press a contention that the selection should have been on the basis of the merit that was adjudged in the selection. Seniority-cum-merit is not altogether a newly introduced concept.
13. Resultantly, the OA is dismissed. Interim orders should be read in line with the above. Accordingly, MA 941/2009 and MA 1741/2008 will stand disposed of. We make no order as to costs.
(Shailendra Pandey) (M Ramachandran) Member (A) Vice Chairman (J) `SRD