Central Administrative Tribunal - Delhi
Tarun Kapoor vs The Lt. Governor Of Delhi on 10 November, 2014
Central Administrative Tribunal
Principal Bench
OA No. 3121/2011
Reserved On:20.08.2014
Pronounced on:10:11.2014
Honble Sh. G. George Paracken, Member (J)
Honble Sh. Shekhar Agarwal, Member (A)
1. Tarun Kapoor
S/o Shri N.C. Kapoor
Pollution Control Officer,
Transport Department,
Government of NCT of Delhi,
5/9, Under Hill Road, Delhi-54
R/o BH-69, Poorvi Shalimar Bagh,
Delhi.
2. Subodh Kumar
S/o Shri Jagdish Prasad
Pollution Control Officer,
Transport Department,
Government of NCT of Delhi,
5/9, Under Hill Road, Delhi-54
R/o D-7/32, Dayalpur,
Shahdara, Delhi-94.
3. Gurmit Singh
S/o Capt. Narinder Singh
Pollution Control Officer,
Transport Department,
Government of NCT of Delhi,
5/9, Under Hill Road, Delhi-54
R/o CU-90, Vishaka Enclave,
Pitampura, Delhi-34.
4. Chandre Shekhar Nawani
S/o Shri J.N. Nawani
Pollution Control Officer,
Transport Department,
Government of NCT of Delhi,
5/9, Under Hill Road, Delhi-54
R/o 20-A, MIG Flats,
Gulabi Bagh,
Delhi-07. Applicants
(By Advocate: Shri M.L. Sharma)
Versus
1. The Lt. Governor of Delhi,
Govt. of NCT of Delhi,
Raj Niwas Marg,
Delhi.
2. Union Public Service Commission
Through its Secretary,
Dholpur House,
Shahjahan Road,
New Delhi.
3. Govt. of NCT of Delhi
Through its Chief Secretary,
Delhi Secretariat,
I.P. Estate,
New Delhi.
4. The Principal Secretary-cum-Commissioner
(Transport),
Transport Department,
Govt. of NCT of Delhi,
5/9, Under Hill Road,
Delhi-110054.
5. Commissioner of Police,
Delhi Police Head Quarters,
I.P. Estate,
New Delhi.
6. P.S. Behl
S/o Shri S.K. Behl
Dy. Commissioner (Transport),
Transport Department,
Government of NCT of Delhi,
5/9, Under Hill Road, Delhi-54
R/o 21/39-B, Tilak Nagar,
New Delhi-110018. Respondents
7. Technical Executive Officers Association
(Regd.)
Transport Department,
Government of NCT, Delhi,
Through its authorized Member
Mr. Sant Ram
S/o Late Shri Hukum Chand,
Presently working as MLO,
West Zonal Office,
Transport Department,
Government of NCT of Delhi,
Janak Puri,
Delhi to represent our Association
Technical Executive Officers Transport
Department,
Govt. of NCT of Delhi presently
Office at A-305, Defence Colony,
New Delhi-110024.
8. Mr. Rajesh Kumar
S/o Late Ram Prashad
Presently working as MLO, West Zone-II,
Transport Department,
GNCTD of Delhi,
Raja Garden,
New Delhi. .Respondents
(By Advocate: Mrs. Renu George for Respondents 1, 3 &
4.
Ms. Bindra Rana for Respondent No.2.
Shri Kumardeb Sen Gupta for Mrs. Rashmi Chopra for Respondent. No.5.
Shri Ajesh Luthra for Respondent No.6.
Shri H.B. Mishra for Respondents No.7 & 8).
O R D E R
Sh. G. George Paracken, Member (J):
The Applicants in this Original Application are Pollution Control Officers (PCOs for short) belonging to the Transport Department, Government of NCT of Delhi. Their grievance is mainly against the orders of the Respondent No.4-Transport Department of the Government of NCT of Delhi fixing seniority of Respondent No.6-Shri P.S. Behl in the grade of Enforcement Officer (EO for short) and his subsequent promotion as Deputy Commissioner. They have, therefore, challenged (i) order of the Respondent No.5-Delhi Police dated 31.05.2004 admitting him to Promotion List F (Executive) with effect from 12.08.1994 and promoting him to the rank of Inspector (Executive) in the scale of pay of Rs.2000-3200 with retrospective effect from 18.08.1994, under Next Below Rule, (ii) order of Respondent No.4-Tansport Department dated 22.06.2004 granting him the benefit of notional seniority in the post of EO with effect from the date of his promotion as Inspector (Executive) in Delhi Police, i.e., 18.08.1994, (iii) letter dated 27.01.2010 of Respondent No.4 including him in the eligibility list of officers for promotion to the post of Deputy Commissioner (Transport) and showing his date of promotion as EO w.e.f. 18.08.1994, (iv) order of the Respondent No.4 dated 02.06.2011 promoting Respondent No.6 to the post of Deputy Commissioner (Transport) subject to outcome of W.P (C ) No.8314/2010 (supra) and (v) order of the Respondent No.4 dated 10.05.2011 allocating the work of Deputy Commissioner (Enforcement) to Respondent No.6 and sought the following reliefs:-
(i) To set aside and quash the order dated 02.05.2011 qua respondent No.6 whereby the Respondent No.6 along with the others has been promoted to the post of Deputy Commissioner (Transport) by the Respondent Nos. 1 to 4.
(ii) To pass orders directing the Respondents No.1 to 4 to consider the case of Applicant No.1 for promotion to the post of Deputy Commissioner (Transport) w.e.f. 02.05.2011 and thereafter the cases of Applicants No.2 to 4 to be considered for promotion to the post of Deputy Commissioner (Transport) in accordance with the RRs.
(iii) To set aside and quash the orders dated 31.05.2004 and 22.06.2004 and all the consequential orders thereto with regard to the grant of notional seniority granted to Respondent No.6 w.e.f 18.08.1994 as an Enforcement Officer in the Transport Department holding the said orders as illegal, violative and contrary to the provisions of law.
(iv) To pass appropriate and necessary orders putting back the Respondent No.6 to the post of Enforcement Officer which he held prior to the promotion to the post of Deputy Commissioner (Transport).
(v) To set aside and quash the eligibility list forwarded to Respondent No.2 by the Respondent No.4 vide letter dated 27.01.2010 qua the Respondent No.6.
2. Brief facts: The 6th Respondent, Shri P.S. Behl was a Sub Inspector (Executive) in Delhi Police. He came on deputation to Respondent No.4, i.e., Transport Department under the Respondent No.3, i.e., Government of NCT of Delhi as an Inspector (Enforcement) with effect from 22.06.1992 in the pay scale of Rs.1600-2600. Later on, he was absorbed on that post, vide order dated 18.05.1994 stating therein that he could keep his lien for two years (i.e. up to 18.05.1996) in his parent office with the option to revert back. Thereafter, a DPC was held for promotion to the post of EO w.e.f. 22.06.1996 but he was not considered. According to him, he was the senior-most Inspector (Enforcement) and, therefore, his name should have been considered but the Respondents contention was that he was under suspension at the relevant time and hence he could not be considered. He has, therefore, filed OA No.2407/1996 before this Tribunal and it was disposed of on 23.07.1997 with the direction to the Respondent No.4 herein to consider him in accordance with the Recruitment Rules notified on 13.07.1959. As the said Respondent did not comply with the aforesaid order, he filed CP No.115/1990 in OA No.2407 (supra). Thereafter, a DPC was held on 27.11.1997 for his promotion to the post of Enforcement Officer but he was not promoted. His contention was that he was eligible and entitled to be considered for promotion to the aforesaid post w.e.f. 22.06.1996 against an unreserved vacancy. As his aforesaid contention was not accepted, he filed OA No.681/1999 before this Tribunal wherein Shri Kuljit Singh, Enforcement Officer was respondent No.4. During the pendency of the said OA, Shri Behl was promoted as Enforcement Officer in the pay scale of Rs.6500-10500 with effect from 15.10.1999 on the recommendation of DPC, subject to the outcome of aforesaid OA. Later on, this Tribunal disposed of the said OA, vide order dated 09.03.2001, with the direction to the Respondent-Transport Department to hold the Review DPC, if the post in question belonged to general category and as per the aforesaid order, a review DPC was held and on recommendation, vide order dated 05.07.2001, he was promoted to the post of Enforcement Officer w.e.f. 02.07.1997. Shri Behl (the 6th Respondent herein) filed C.W.P. No.5671/2001. His limited grievance in the said Writ Petition was that the post of Enforcement Officer available in 1996 for promotion was to be treated as General Category but the Respondents have treated it as a reserved category post. While the said Writ Petition was pending, the Delhi Police, vide its order dated 33677-710 dated 31.05.2004, promoted Shri Behl notionally to the rank of Inspector (Executive) w.e.f. 18.08.1994 (back date) under Next Below Rule 4 in the pay scale of Rs.2000-3200 (pre-revised) (duly approved by review DPC and published in Delhi Police Gazette). In terms of aforesaid order, the Transport Department granted him the benefit of notional seniority as EO w.e.f. 18.08.1994 vide order No.F.3(17)/Admn./Tpt./1531-50 dated 22.06.2004. Shri Kuljit Singh, EO made representation against the aforesaid orders dated 31.05.2004 and 22.06.2004 on 30.06.2004 and the Transport Department considered it in consultation with the Services Department and on their advice it was held that the aforesaid notional promotion granted to Shri Behl under NBR by the Delhi Police vide its order dated 31.05.2004 on the basis of his extended lien at the time of his absorption 18.08.1994 was unjustified. Thereafter, Shri Behl filed CM No.9881/2004 in CWP-5671/2001 (supra) for taking on record of his seniority order as granted by Transport Department w.e.f. 18.08.1994 on the basis of Delhi Police order dated 31.05.2004, whereas in the said case Shri Kuljit Singh was also Respondent No.4. During the course of hearing, the High Court asked Respondents to file the reply/objections, if any. Shri Kuljit Singh, being Respondent No.4, did not file any reply to the aforesaid CM. The High Court passed order dated 08.02.2006 in the said CM stating therein the application was considered and was disposed off by order dated 22.09.2004 by allowing the application. Accordingly, the said order dated 31.05.2004 has been kept on record of the court. Thereafter, Respondent-Transport Department issued a tentative seniority list of E.Os. was circulated on 13.03.2009 in which Shri Behl was shown senior to Shri Kujit Singh and Shri Kuljit Singh made a representation dated 15.09.2009 against it. But the Respondents issued the final seniority list of Enforcement Officers as on 01.01.2010 vide letter dated 12.01.2010 wherein Shri Behl was shown senior to Shri Kuljit Singh. Shri Kuljit Singh raised objection to the aforesaid list assigning seniority to Shri Behl, above him. His contention was that Shri Behl could not have been promoted as EO on 18.08.1994, i.e., within two years of his absorption in the Transport Department because as per the Recruitment Rules of the Department, he could have been promoted only after four years of regular service in the post of EO. He has, therefore, filed OA No.364/2010 and it was allowed vide order dated 01.12.2010 having its operative part as under:-
7. In the instant case also, although the fifth Respondent could have claimed the seniority of the year 1994, yet he would be eligible for promotion only from 1996 after completing four years in the grade of Inspector (Enforcement), as per the recruitment rules. It is clear that which ever is the year of seniority of the fifth Respondent, he would be eligible for promotion only from the year 1996, subject to the availability of vacancies in that year. The promotion of the fifth Respondent with effect from 18.08.1994 is against the rules as he was not eligible for promotion in the year. In the result the seniority of the fifth Respondent above the Applicant, which is a consequence of the order dated 20.06.2004, by which the fifth Respondent has been promoted from the above date, also cannot be sustained. The impugned seniority list of 12.01.2010 is quashed to the extent that the fifth Respondent has been shown above the Applicant. The second Respondent is directed to redraw the seniority list of the Enforcement Officers of the Transport Department, wherein the Applicant would be shown senior to the fifth Respondent. These directions would be complied with within eight weeks of receipt of certified copy of this order. No costs.
3. The Respondent No.6 herein challenged the aforesaid order before the Honble High Court of Delhi vide Writ Petition (Civil) No.8314/2010 and vide order dated 14.12.2010 the High Court stayed the same as an interim measure. Thereafter, the Respondents held DPC on 25.04.2011 and promoted the Respondent No.6 as Deputy Commissioner (Transport) vide order dated 02.05.2011. Consequently, the Respondents No.6 sought withdrawal of the said Writ Petition making a statement before the High Court that he will seek review of the order dated 01.12.2010 in OA No.364/2010 (supra) on the ground that the said OA was barred by limitation and the said plea taken by him was not considered by this Tribunal. The High Court, vide order dated 11.09.2011, allowed his aforesaid request and further directed that the interim relief granted vide order dated 14.12.2010 and any relief availed by the petitioner consequent to it shall be continued for another four weeks. The aforesaid order of High Court dated 11.08.2011, is reproduced as under:-
1.After some arguments, learned counsel for the petitioner on instructions from the petitioner, who is present, seeks to withdraw the petition with liberty to approach the Tribunal to seek review of impugned order dated 1st December, 2010 with regard to his plea that the original application of the respondent No.5 was barred by time, as the said plea was taken as preliminary objection and was also canvassed before the Tribunal. However, the Tribunal had not decided the same.
2. The writ petition is dismissed as withdrawn with the liberty as prayed for, without prejudice to the other grounds and contentions raised by the petitioner in the writ petition which will be open for challenge.
3.The interim order granted by this Court by order dated 14th December, 2010, and any relief availed by the petitioner on account of interim order, however, shall continue for another four weeks. For period after four weeks, it will be open to the petitioner to approach the Tribunal for continuation of interim order and any relief availed by him, in accordance with law.
4. Dasti.
4. Consequent to the aforesaid order of the Honble High Court dated 11.08.2011, Shri P.S. Behl filed Review Application No.279/2011 along with M.A. Nos. 2253 & 2254/2011 in OA No.364/2010 but the said RA was dismissed vide order dated 23.09.2011. Thereafter, the Respondent issued the order dated 16.12.2011 modifying its earlier order dated 02.05.2011 making the date of promotion of Respondent No.6 as Dy. Commissioner effective from 01.12.2006 instead of 02.05.2011. But Respondent No.6 challenged the aforesaid order dated 23.09.2011 vide W.P. ( C) No. 7316/2011 and the High Court disposed of it along with W.P. ( C) No. 5617/2011 on 26.08.2013 and the operative part of the said order reads as under:-
22. On consideration of the aforesaid submissions of the learned counsel for the parties the only question which falls for our consideration in WP(C) No.5617/2001 is whether the petitioner is entitled to be considered for the post of Enforcement Officer with effect from June 22, 1996 or July 02, 1997. It is an accepted position that the Supreme Court in R.K.Sabharwal"s case (supra) and J.C.Malik"s case (supra) has held that the reservation has to apply to posts and not to vacancies the earlier instructions on roster issued have become unoperational in view of the judgment of the Supreme Court in R.K.Sabharwal"s case (supra). The department of Personnel & Training, Government of India has to formulate a new roster. So the post of Enforcement Officer could not have been filled by reserved candidate but by a general candidate. In fact this aspect gets reinforced by the O.M. dated July 02, 1997 issued by the Department of Personnel & Training, Government of India. It so happened that pursuant to the judgment of the Supreme Court in R.K.Sabharwal"s case (supra) and J.C.Malik"s case (supra) the Department of Personnel & Training, Government of India could issue the instructions only on July 02, 1997 and not before that. Merely because the Department of Personnel & Training had issued instructions only on July 02, 1997, whether the promotion to the post of Enforcement Officer should be given from that date only the answer would be clearly NO in the facts of this case. This we say so because the petitioner had in his favour directions from the Tribunal in Original Application No.2487/1996 wherein the Tribunal had directed for considering his case for the post of Enforcement Officer with effect June 22, 1996.
23. We could have agreed with the submissions of the learned counsel for the department justifying the promotion of the petitioner with effect from July 02, 1997, if there were no directions from any Court of law directing the consideration from a date prior to July 02, 1997. That is not the case here. The petitioner already had directions in his favour from the Tribunal in the Original Application referred to above. A clear distinction has to be made where there were no directions for consideration from a date prior to July 02, 1997 and a case wherein such directions exist. This case falls in the latter category. The effect of the promotion given to the petitioner with effect from July 02, 1997 would mean that the earlier directions of the Tribunal had been made redundant by the respondents by prescribing a different date not prescribed by the Tribunal while disposing of Original Application No.2487/1996. This is clearly untenable.
24. This peculiar position has arisen because of the O.M. dated July 02, 1997 has been given effect from the said date only. We are also conscious of the fact that the dicta of the Supreme Court in R.K.Sabharwal"s case (supra) could not be given effect to without formulating/amending the already existing roster. The amendments to the roster point having taken place only on July 02, 1997 the same was given effect from that date but without examining what would happen to those cases which became ripe for promotion between February 10, 1995 and July 02, 1997. Any observation by us against the fixing of the cut-off date of July 02, 1997 would lead to litigation at this point of time. We refrain from saying any further except that the case in hand where the petitioner has already had directions in his favour to consider his case for the post of Enforcement Officer with effect from June 22, 1996 in Original Application No.2487/1996, which has not been challenged by the respondents No.1 and 2 and which direction in a way reiterated by the Tribunal in the impugned order dated March 09, 2001 we hold in the peculiar facts of this case without forming a precedent, the petitioner is entitled to be promoted as Enforcement Officer with effect from June 22, 1996 as nothing adverse has been shown to us against the petitioner on that day.
25. In view of our reasoning above and the direction issued in paragraph 24 it has to be held that the decision by the Tribunal in the order dated December 01, 2010 dismissing OA No.364/2010 and its decision to dismiss RA No.279/2011 seeking review of the order dated December 01, 2010 as per the order dated September 23, 2011 declining petitioner right to be promoted as an Inspector and hence seniority reckoned with effect from August 18, 1994 is correct.
26. Accordingly, both writ petitions stand disposed of directing the department to promote petitioner as an Enforcement Officer with effect from June 22, 1996 and reckon his seniority with effect from said date and work out the inter se seniority between the petitioner and respondent No.4 in accordance with the applicable rule and instructions within a period of 3 months from today.
27. No costs.
5. The petitioner filed Review Petition No.481/2013 in the Writ Petition No.7316/2011 (supra) but it was dismissed vide order dated 25.09.2013 and its relevant part is as under:-
4. This review petition has been filed by the petitioner inter alia praying that he may be granted relief in terms of para (iii) of the writ petition. For the sake of convenience we reproduce para (iii) of the prayer clause which reads as under:-
issue a Writ of Mandamus or any other appropriate Wirt, Order or Directing any other writ, order or direction directing the respondent No.1, 2 and 3 to restore the seniority list as on 01.01.2010 pertaining to the enforcement officers of the Transport Department, Government of NCT of Delhi issued on 12.01.2010 and further to take appropriate action for continuing the promotion of the petitioner to the post of Deputy Commissioner (Transport).
5. A perusal of the prayer would reveal that in effect the petitioner is seeking his seniority over and above respondent no.4 (Respondent No.5 in WP( C) No.7316/2011) who was shown senior to him. By this prayer the petitioner is effectively re-arguing his case contrary to what was represented before us when the writ petitions were argued. In any case we have in para 26 of our order dated August 26, 2013 directed the department to promote the petitioner as Enforcement Officer with effect from June 22, 1996 and W.P. ( C) 7316/2011 reckon the seniority with effect from the said date and work out inter se seniority between the petitioner and respondent No.4 in accordance with the instructions.
6. We do not see any infirmity in our order dated August 26, 2013.
7. The review petition is dismissed.
6. Meanwhile, the Respondent No.3 (Government of NCT of Delhi), vide its Annexure P-3 letter No.F.4(1)/97/Admn/Tpt/610-11 dated 27.01.2010, forwarded the authenticated seniority list of EOs/MLOs/ TOs/PCOs etc. as on 01.01.2010 issued on 12.01.2010 to Respondent No.2 (UPSC). Based on the said seniority list, the Respondent No.6 was further promoted to the post of Deputy Commissioner with immediate effect, vide Annexure P-4 order dated 02.05.2011 of Respondent No.4 and vide its Annexure P-5 order dated 10.05.2011, assigned him the work of the said post.
7. According to the Applicants, the Respondent No.4 has completely ignored the entire records related to Respondent No.6 maintained by it while granting him the notional seniority. The Respondent No.4, has, thus, passed erroneous orders causing administrative complications and anomalies in the cadre of Enforcement Officers ignoring the legal position that after the Respondent No.6 was permanently absorbed in the Transport Department, he was governed by the Recruitment and Promotion Rules of that Department and as such he was required to be promoted from Inspector (Enforcement) to the post of Enforcement Officer in accordance with the Recruitment Rules which were required to be rectified in terms of the advice of the Services Department of the Government of NCT of Delhi. They have also alleged that the Respondent No.4 did not circulate the final combined eligibility and seniority lists of the officers holding the feeder posts to the post of Deputy Commissioner (Transport) thus deprived them from furnishing their objections; wrongly and illegally acted upon the order dated 31.05.2004 issued by the Respondent No.5 misinterpreting the relevant provisions of lien, absorption and pro-forma promotion under the Next Below Rule in his case while passing order dated 22.06.2004 and thereby committing serious error and granting notional seniority to the Respondent No.6 w.e.f. 18.08.1994 and acted in hot haste in holding the DPC, recommending his case for promotion and further issuing the order promoting him to the post of Deputy Commissioner (Transport) w.e.f. 02.05.2011 whereas it is an admitted position that Respondent No.6 joined the Transport Department as Inspector (Enforcement) on 23.06.1992 and was absorbed in the post w.e.f. 18.08.1994 and for promotion to the post of Enforcement Officer, he was required to render at least four years regular service in the grade of Inspector (Enforcement) in Transport Department. Even with his alleged notional seniority in the grade of Inspector (Enforcement) w.e.f 18.08.1994, he was not eligible for consideration for promotion to the post of Enforcement Officer. According to the Recruitment Rules for promotion from the post of Inspector (Enforcement) to the post of Enforcement Officer in the Transport Department, the incumbent is required to render four years regular service in the grade in Transport Department for promotion whereas the Respondent No.6 was given only the notional seniority w.e.f. 18.08.1994 and he had rendered only two years service. Further, the principle of Next Below Rules was not applicable in his case as he has already been permanently absorbed in Transport Department on 18.05.1994 and thus his name was struck off from the strength of Delhi Police. Therefore, there was no question of giving him any officiating promotion in Delhi Police after 18.05.1994 or any proforma promotion under Next Below Rule in the Transport Department with effect from the same date. He was entitled to be granted seniority as an Enforcement Officer only w.e.f. 02.07.1997 whereas the services of the Applicant No.1 as Pollution Control Officer was regularized from an earlier date, i.e., w.e.f. 10.01.1995. Consequently, the Applicant No.1 ought to have been promoted to the post of Deputy Commissioner (Transport) w.e.f. 02.05.2011 and thereafter the other Applicants subject to the availability of posts.
8. The learned counsel for the Applicants has relied upon the judgment of the Supreme Court in the case of N.R. Prabha Devi and Others Vs. Government of India and Others 1988 (2) SCC 233 wherein it has held that rule prescribing the minimum length of service is to be fulfilled in all cases. Further, the question of seniority for the purpose of promotion will be considered only amongst eligible candidates. In other words, mere seniority will not entitle one for promotion. The relevant part of the aforesaid judgment reads as under:-
15. The rule-making authority is competent to frame rules laying down eligibility condition for promotion to a higher post. When such an eligibility condition has been laid down by service rules, it cannot be said that a direct recruit who is senior to the promotees is not required to comply with the eligibility condition and he is entitled to be considered for promotion to the higher post merely on the basis of his seniority. The amended rule in question has specified a period of eight years' approved service in the grade of Section Officer as a condition of eligibility for being considered for promotion to Grade I post of C.S.S. This rule is equally applicable to both the direct recruit Section Officers as well as the promotee Section Officers. The submission that a senior Section Officer has a right to be considered for promotion to Grade I post when his juniors who have fulfilled the eligibility condition are being considered for promotion to the higher post, Grade I, is wholly unsustainable. The prescribing of an eligibility condition for entitlement for consideration for promotion is within the competence of the rule-making authority. This eligibility condition has to be fulfilled by the Section Officers including senior direct recruits in order to be eligible for being considered for promotion when qualifications for appointment to a post in a particular cadre are prescribed, the same have to be satisfied before a person can be considered for appointment. Seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfills the eligibility condition prescribed by the relevant rules. A person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be considered for promotion. Seniority will be relevant only amongst persons eligible. Seniority cannot be substituted for eligibility nor it can override it in the matter of promotion to the next higher post. The rule in question which prescribes a uniform period of qualified service cannot be said to be arbitrary or unjust violative of Arts. 14 and 16 of the Constitution. It has been rightly held by the Tribunal:
"When certain length of service in a particular cadre can validly be prescribed and is so prescribed, unless a person possesses that qualification, he cannot be considered eligible for appointment. There is no law which lays down that a senior in service would automatically be eligible for promotion. Seniority by itself does not outweigh experience."
9. He has also relied upon the judgment of the Apex Court in the case of Amarjeet Singh and Others Vs. Devi Ratan and Others 2010 (1) AD (SC) 207 wherein it was held as under:-
15. No litigant can derive any benefit from mere pendency of case in a Court of Law, as the interim order always merges in the final order to be passed in the case and if the writ petition is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrongs by getting interim order and thereafter blame the Court. The fact that the writ is found, ultimately, devoid of any merit, shows that a frivolous writ petition had been filed. The maxim "Actus Curiae neminem gravabit", which means that the act of the Court shall prejudice no-one, becomes applicable in such a case. In such a fact situation the Court is under an obligation to undo the wrong done to a party by the act of the Court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralised, as institution of litigation cannot be permitted to confer any advantage on a suitor from delayed action by the act of the Court.
10. The Respondents No.3 and 4 (Government of NCT of Delhi ) filed their reply rebutting the contentions raised by the Applicants.
11. The Respondent No.5 in its reply has not disagreed with the factual position as narrated earlier. However, it stated that it has been wrongly impleaded as a Respondent as none of the Applicants are directly or indirectly serving under it. However, they have justified their action in grating proforma promotion to Shri Behl. They have referred to FR 14-A(d) which provides that a government servants lien on a post shall stand terminated on his acquiring a lien on another post (whether under the Central Government or State Government) outside the cadre on which he is borne. According to the said Rule, his lien was to be terminated on the day he acquired lien in Transport Department. He was absorbed in Transport Department on 18.05.1994 as Inspector (Enforcement) and he was given proforma promotion to the rank of Inspector (Executive) w.e.f. 18.08.1994 under NBR. His status as on 18.08.1994 was governed by the Government of Indias order (2) below FR-13 which is reproduced below:-
In the case of permanent Government servants, their lien may be retained in the parent Department/Office for a period of two years. They should either revert to the parent Department/Office within that period of resign from the parent Department/Office at the end of that period. An undertaking to abide by these conditions may be taken from them at the time of forwarding the applications to other Department/Office.
12. The Respondent No.6 in its reply has submitted that the Applicants, the Technical Executive (Anti-Pollution) Welfare Association, Registered and the Technical Executive Officers Association (Regd.) are distinctively different associations with respect to their service and cadres. They have been recruited under Anti Pollution Scheme which was introduced by the Ministry of Environment, Government of India and in the Delhi Administration, they were placed under the Development Commissioner. After their recruitment as Pollution Level Test Inspectors (PLTIs), they were assigned to the Transport Department, Government of NCT of Delhi for their work. Later on, for them, a Cell was created for checking pollution of Motor vehicles and it was put under the Central Pollution Control Board headed by the Development Commissioner. They have their separate existence, functions and original departmental establishments with separate Recruitment Rules and seniority list. After induction in the Transport Department, they were promoted to the post of Pollution Control Officers on ad hoc basis as no Recruitment Rules for the said post were framed. Later on, they were regularized in the said post with effect from 19.01.1995. In para 5.19 of the OA 1851/2007, they have specifically mentioned that One of the 2 Enforcement Officers has been subsequently given proforma promotion with effect from 18.08.1994 by the Transport Department, GNCT of Delhi even though he had been promoted to the post of Enforcement Officer with effect from 02.07.1997 and Services Department, GNCTD has taken a serious objection to it. The said OA was dismissed by the Tribunal vide order dated 15.12.2008. Later on, they were made eligible for promotion to the post of Deputy Commissioner (Transport) in Transport Department, GNCTD as per Recruitment Rules which were finalized and notified vide Notification No.F.1(3)Admn./TPT/P.File/04/7713 dated 06.12.2005. Prior to that date, they were not eligible for considering their names for promotion to the post of Deputy Commissioner (Transport). The ante-dating of the promotion of Respondent No.6 for the post of Enforcement Officer was ordered vide order dated 22.06.2004, i.e., much before the above mentioned Recruitment Rules were notified. As such Applicants have no locus standi in the eyes of law to challenge the promotion order dated 22.06.2004 and 31.05.2004. He has also stated that he was permanently absorbed in the Transport Department only after they have obtained his written willingness and the consent of the Delhi Police. In this regard, he has referred to the letter dated 13.05.1994 of the Transport Department by which the Commissioner of Police, Delhi was intimated as under:-
Shri Prem Sagar Behl, Sub-Inspector, No.D-1659 has been working in the Department of Transport since 23.06.1992 on deputation basis as Inspector (Enforcement). He has now requested for his absorption in the Transport Department.
After considering the work and conduct of Shri P.S. Behl, it has been decided to absorb him permanently in the Transport Department. Since Shri Behl is a permanent employee of Delhi Police and is having lien in that Department, I shall be grateful if you could kindly issue No Objection Certificate to this Department to enable us to process the case of Shri Behl for his permanent absorption in the Transport Department. It is thereafter that he was permanently absorbed as Inspector (Enforcement) in the pay scale of Rs.1640-2900 vide letter F.No.3(1)87-Admn./Tpt.-Pt.File/3226, dated 18.05.1994 with immediate effect. It has been specifically mentioned in the said letter that his inter-se-seniority will be decided on the basis of the date of his appointment in Delhi Police. It was also specifically mentioned in the said letter that he will have the option to revert back to his parent office within a period of 2 years from the date of absorption. During the period of his lien, the Sub-Inspectors in Delhi Police who were juniors to him were promoted as Inspector (Executive) w.e.f. 18.8.1994 but unfortunately he was not given promotion despite the fact that his service particulars were called by the Delhi Police Headquarters for consideration of his promotion also. Had he been consequently promoted, he also would have been promoted as Enforcement Officer in the pay scale of Rs.2000-3200 (Revised pay scale Rs.6500-10500) as the three officers junior to him as Inspector (Executive) in Delhi Police were given promotions on the basis of their promotion in the parent department. However, they were repatriated to their parent department, i.e., Delhi Police. His lien in his parent department was also terminated with effect from 18.05.1996 vide PHQs Order No.22498-520/CB-VI dated 20.05.1996. Finally, his parent department granted him his due promotion in the rank of Inspector (Executive) with effect from 18.08.1994 under Next Below Rule in the pay scale of Rs.2000-3200 vide Notification No.33677-710/CB-1 dated 31.05.2004 issued by the Respondent No.5 wherein it was mentioned that since he was already permanently absorbed in the Transport Department w.e.f. 18.05.1994, he was to be accommodated in the said Department against the post equivalent to the status of Inspector in the pay scale of Rs.2000-3200 (pre-revised). Accordingly, the Transport Department granted him the benefit of notional seniority as Enforcement Officer with effect from the date of his promotion as Inspector (Executive) in Delhi Police, i.e., 18th August, 1994 vide order No.F.3(17)/Admn./Tpt./1531-50 dated 22.06.2004.
13. He has further submitted that the Applicants, till their promotion as Pollution Control Officer, have no relation with the seniority of Enforcement Officer in Transport Department. While the Seniority List of Pollution Control Officers of Transport Department as on 01.01.2009 was circulated by the Transport Department vide Circular dated 26.11.2009, the final seniority of Enforcement Officers (EO) as on 01.01.2010 was issued by them vide their Circular F.No.1(29)/2006/Admn./Tpt./Part-IV, dated 12.01.2010. As such Applicants have no legitimate right or locus standi to challenge his promotion as Enforcement Officer made in the year 2004.
14. He has also submitted that the duly constituted DPC by the UPSC considered the names of eligible officers of Transport Department for promotion to the post of Deputy Commissioner (Transport) and recommended his name and those of three other officers for promotion. Accordingly, 4 eligible officers mentioned in the eligibility list sent by the Transport Department to UPSC were promoted to the pot of Dy. Commissioner (Transport) vide order No.F-4(1)/97/Admn./Tpt./2771-99 dated 02.05.2011. He has further submitted that he and other officers as mentioned in the said order were eligible for promotion to the post of Dy. Commissioner (Transport) from retrospective dates as per provision of Recruitment Rules. Accordingly, all these 4 officers were given ante-dated promotion notionally in the post/rank of Dy. Commissioner (Transport) w.e.f. 01.06.2005 onwards vide order F.4(1)/97/Admn./Tpt./8436-56 dated 16.12.2011 by amending order dated 02.05.2011. He was accordingly promoted notionally as Dy. Commissioner (Transport) w.e.f. 01.12.2006 vide order dated 16.12.2011.
15. The Respondents No.7, namely, the Technical Executive Officers Association (Regd.) and the Respondent No.8 Mr. Rajesh Kumar have filed written arguments. According to them, the Applicants have no locus standi to file this Original Application. They have stated that the merger of the cadres of MVI and PLTI are out of question as the same has already been refused by this Tribunal in its order dated 17.07.1996 in OA No.2193/1991 and reiterated in its another order dated 15.12.2008 in OA No.1851/2007.
16. We have heard the learned counsel for the parties. We have also gone through the entire proceedings. Considering the reliefs sought by the Applicants in this OA in chronological order, it is seen that the first prayer is to quash and set aside the orders dated 31.05.2004 and 22.06.2004 and all other consequential orders by which the 6th Respondent was granted notional seniority as Enforcement Officer w.e.f. 18.08.1994. The order dated 31.05.2004 was passed by the Respondent No.5-Dehli Police admitting the Respondent No.6 (Shri Behl) who was Sub-Inspector (Executive) on deputation to the Respondent No.3-Transport Department as Inspector (Enforcement) in the same scale with effect from 23.06.1992 and permanently got absorbed there with effect from 18.05.1994, to Promotion List F (Executive) 12.08.1994 on the basis of a Review DPC. By the same order, he was promoted to the rank of Inspector (Executive) w.e.f. 18.08.1994 under Next Below Rule, as he has a lien with Delhi Police. Delhi Police had, therefore, requested the Transport Department to accommodate him in a post equivalent to that of Inspector. The order dated 22.06.2004 is the consequential order issued by the Transport Department granting him the equivalent post of Enforcement Officer with the notional seniority w.e.f. 18.08.1994. Thereafter, the Respondent-Transport Department placed him above Shri Kuljit Singh, EO in the seniority list as on 01.01.2010. Shri Kuljit Singh has challenged the aforesaid Seniority List in OA No.364/2010 (supra). In the said OA, vide order dated 01.12.2010 held that the promotion of the 5th Respondent (Shri Behl) as Enforcement Officer w.e.f. 18.08.1994 was wrong. Shri P.S. Behl challenged the aforesaid order before the Honble High Court of Delhi vide W.P. (C ) No.8314/2010 and the High Court vide its order dated 14.12.2010 stayed it. Therefore, during the pendency of the said Writ Petition, Shri Behl was promoted as Dy. Commissioner, Transport w.e.f. 02.05.2011. However, Shri Behl argued that the claim of Shri Kuljit Singh in OA No.364/2010 was time barred and he will file a Review Petition in it. Accordingly, the Honble High Court of Delhi vide its order dated 11.08.2011 allowed the aforesaid interim order dated 14.12.2010 to be continued for another four weeks and given liberty to file a Review Petition before this Tribunal. Accordingly, he has filed RA No.279/2011 in the said OA before this Tribunal but it was dismissed vide order dated 23.09.2011. Respondent No.6 has again challenged both the aforesaid orders dated 01.12.2010 in OA No.364/2010 (supra) and order dated 23.09.2011 in RA No.279/2011 vide CWP No.7316/2011. The High Court, vide its order dated 03.10.2011 in the said Writ Petition stayed both the orders dated 01.12.2010 in OA No.364/2010 (supra) and order dated 23.09.2011 in RA No.279/2011 (supra) therein. Finally, vide order dated 26.08.2013, the High Court disposed of the W.P. ( C) No.7316/2011 holding that Shri Behl was entitled to be promoted as Enforcement Officer w.e.f. 22.06.1996 and reckon his seniority in the said post with the same date and to work out the inter-se seniority between Shri Behl and Shri Kuljit Singh. Later on, Shri Behl filed RA No.481/2013 in W.P. ( C) No. 7316/2011 and it was dismissed vide order dated 25.09.2013 Shri Behl challenged both the aforesaid orders dated 26.08.2013 and 25.09.2013 before the Supreme Court vide SLP (C ) Nos. 33591-33592 of 2013 and it wad disposed of without going into the controversy involved and the factual matrix. The Supreme Court, vide order dated 19.09.2014, recognized the fact that there was some dispute regarding seniority between Shri Behl and Shri Kuljit Singh. But considering the fact that Shri Behl has already retired from service w.e.f. 30.06.2014 as Deputy Commissioner, he was allowed to retire from the said post itself. Therefore, we are of the considered view that the Applicants 3rd prayer to set aside the orders dated 31.05.2004 and 22.06.2004 has become infructuous and it is rejected accordingly. Consequently, the next two prayers of the Applicants, namely, (iv) to pass appropriate and necessary orders putting back the Respondent No.6 to the post of Enforcement Officer which he held prior to the promotion to the post of Deputy Commissioner (Transport) and (v) to set aside and quash the eligibility list forwarded to Respondent No.2 by the Respondent No.4 vide letter dated 27.01.2010 qua the Respondent No.6 have also become infructuous and they are also rejected. For the same reason, the first prayer of the Applicants in the OA, namely, to set aside and quash the order dated 02.05.2011 qua respondent No.6 whereby the Respondent No.6 along with the others has been promoted to the post of Deputy Commissioner (Transport) by the Respondent Nos. 1 to 4 and the second prayer, namely, To pass orders directing the Respondents No.1 to 4 to consider the case of Applicant No.1 for promotion to the post of Deputy Commissioner (Transport) w.e.f. 02.05.2011 also would not survive and they are rejected. Thereafter, the cases of Applicants No.2 to 4 to be considered for promotion to the post of Deputy Commissioner (Transport) in accordance with the RRs. However, it is well settled that right of consideration for promotion in accordance with the rule cannot be denied to an employee. We, therefore, dispose of this OA with the direction to the Respondents to consider the cases of the Applicants for eligibility for promotion to the post of Deputy Director (Enforcement) against further vacancies in accordance with the Recruitment Rules and to take appropriate decision at the earliest under intimation to them. No costs.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
Rakesh