Central Administrative Tribunal - Delhi
Naveen Verma vs The Municipal Corporation Of Delhi on 15 May, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA 392/2012
MA 946/2012
New Delhi, this the 15th day of May, 2012
HONBLE MRS. MEERA CHHIBBER, MEMBER (J)
HONBLR MRS. MANJULIKA GAUTAM, MEMBER (A)
Naveen Verma
S/o Late Sh. Ram Nath Verma
R/o D-94, Vikas Puri, New Delhi-18 Applicant
(Through Mr. Atul Nanda, Sr. Advocate with Sh. M.K. Bhardwaj and Shri Khalid Arshad)
Versus
The Municipal Corporation of Delhi
1. Through its Commissioner
Municipal Corporation of Delhi
Civic Centre, Minto Road,
New Delhi.
2. Additional Commissioner (Est.)
Municipal Corporation of Delhi
Civic Centre, Minto Road,
New Delhi.
3. The Director (Pers.)
Municipal Corporation of Delhi
Civic Centre, Minto Road,
New Delhi.
4. Sh. Pradeep Bansal
Supdt. Engineer
Narela Zone, MCD, Delhi. .Respondents
(Through Sh. Rajinder Khatter, for official respondents and
Ms. S. Janani, for private respondents)
ORDER
MRS. MANJULIKA GAUTAM, MEMBER (A):
This OA has been filed seeking the following reliefs:
(i) to quash and set aside the impugned order dated 01.2.2012.
(ii) to declare the action of respondents in promoting ineligible persons to the post of Chief Engineer (Civil) on current duty charge by ignoring the rules and procedures.
(iii) to quash and set aside the promotion of Respondent No. 4 being illegal and arbitrary.
(iv) to direct the respondents to consider the applicant for promotion to the post of Chief Engineer on current duty charge/adhoc promotion without any delay and promote him with all consequential benefits including arrears of pay.
(v) to allow the OA with exemplary cost.
2. The impugned orders dated 1.02.2012 are regarding current duty charge to the post of Chief Engineer (Civil) made as a stop gap arrangement up to 16.05.2012 or till the posts are filled on regular basis. By the order aforesaid, three Superintending Engineer (Civil) who are presently working on ad hoc basis, have been assigned current duty charge to the post of Chief Engineer (Civil). The applicant in the OA has challenged these orders on the ground that the Superintending Engineer at serial number 2, Shri Pradeep Bansal has been irregularly assigned current duty charge and that the applicant who is next in seniority in the list of ad hoc Superintending Engineers should have been considered.
3. It is seen that there are 14 posts of Chief Engineer (Civil) in MCD out of which 11 are filled and 3 are vacant. The impugned orders have been passed with a view to make stop gap arrangement on these three vacant posts by giving current duty charge. According to the recruitment rules for the post of Chief Engineer (Civil), notified on 27.02.1984, it is stipulated that Superintending Engineer (Civil) with seven years of regular service in the grade are eligible for promotion to the post of Chief Engineer (Civil). Due to non-availability of any SE (Civil) fulfilling this requirement of seven years regular service, it has been decided by the MCD to fill the vacancies by giving current duty charge. Provisions regarding current duty charge are contained in circular dated 14.12.1973 (Annexure A-2), which read as follows:
It has been observed that the different departments have been following different norms while recommending order for current charge appointment to higher posts. In order to streamline the procedure relating to such appointments, the following principles are laid down for strict compliance by all concerned.
(i) Current charge arrangements should be made only in the order of seniority subject to the condition that the official/officer being otherwise fit with reference to service character rolls and clearance reports from the DOV/DOI.
(ii) Current charge arrangements should not be made of and otherwise suitable person senior to the incumbent is available except where the Current Charge arrangement is for such a short period that it will not be in the administrative interest to disrupt the eligible person from his existing assignment.
(iii) Current Charge arrangements should cease forthwith when an official/officer being eligible for ad-hoc/regular appointment to the post. Cases for ad-hoc/regular appointments are to be initiated simultaneously while making Current Charge arrangements.
(iv) At the time of assessing the official/officer for appointment in current charge basis, single warning or adverse remarks in his CRs for the last three years should not be the only guiding factor for determination of his suitability, but the CRs for the last three to five years should form the basis of assessment.
(v) Only cases of such official/officer for appointment on current charge basis should be considered who have rendered 2/3rd of the service prescribed who have for purpose of regular appointment. In cases, where RRs have been notified for posts the same would be followed. In case, there is difference in the recruitment regulations as approved by the Commissioner; and those approved by the Standing Committee/Ad-hoc Committee/Corporation specific orders of the Commissioner should invariably be obtained as to the criteria to be in filling up the post.
2. This issues under the orders of the Commissioner.
4. According to this circular, officials having 2/3rd service in feeder grade were eligible for current duty charge on the next post. The minimum required service for promotion to Chief Engineer (Civil) is seven years, therefore, a minimum of five years service as ad hoc Superintending Engineer was necessary for being given current duty charge on that basis.
5. The applicant in this OA was promoted as SE on ad hoc basis vide order dated 30.11.2006. Respondent no.4, who is placed at serial number 2 in the impugned orders, was facing two disciplinary proceedings and thus was not promoted as SE on ad hoc basis at that time. It is only after the punishment of two censures was awarded to him in the above mentioned disciplinary proceedings that respondent no.4 was promoted as SE (Civil) on ad hoc basis on 4.02.2009. Thus, respondent no.4 did not fulfill the eligibility criteria of five years of regular service as SE or even ad hoc basis at the time when the matter of current duty charge was under consideration. The applicant in the OA made representations dated 19.01.2012 (Annexure A-7) and 20.01.2012 (Annexure A-8) stating the above facts. It has been stated by the applicant that he has reliably come to know that the Screening Committee for promotion to the grade of CE (Civil) did not find respondent no. 4 eligible for consideration as he had not completed 2/3rds length of service in the grade of SE (Civil) but subsequently on the recommendations of Director (Personnel), who made out a strong case on the ground that respondent no. 4 is senior to Shri P.K. Khandelwal and others that the impugned orders were issued. The matter was put up to Commissioner, MCD through Additional Commissioner (Estt) and the Commissioner, MCD, agreeing with the views of the Director (Personnel), sent the recommendations for three SEs including respondent no.4 for approval of Mayor. After approval of the Mayor, the impugned orders were issued. Thus, according to the applicant, by issuing the impugned orders, the respondents have promoted an ineligible person in a malafide manner. It is also the contention of the applicant that when three posts were to be filled, vigilance clearance in respect of only three SEs was called for whereas at least ten names should have been considered. It is also stated that the Screening Committee had categorically stated that respondent no.4 was ineligible for the post but in spite of that his name has been included in the orders which have been issued, ignoring the circular dated 14.12.1973 (Annexure A-2).
6. In the counter affidavit filed by respondent no.4, it has been stated that he was fully eligible to be considered for current duty charge for the post of CE (Civil). He had been appointed SE on current duty basis on 7.07.2004. In July, 2006, he was issued a charge sheet and in 2008, the penalty of censure was imposed. After the disciplinary proceedings had been completed and punishment of censure imposed, respondent no.4 was promoted as SE on ad hoc basis on 4.02.2009. Therefore, he has been working as SE since 2004 and has sufficient years of service in the grade as SE. According to respondent no.4, seniority is the main criteria in making current duty charge arrangement and he is undoubtedly senior to applicant in the OA. He has also given examples of several persons who were appointed as Civil Engineers without having necessary experience in the feeder post. He has also mentioned two RDAs and two FIRs registered against the applicant and has stated that the record of the applicant is not blemish free.
7. When respondents had entered appearance, we had directed the respondents counsel to take instructions, why regular promotions are not being resorted to and why are they still resorting to ad hoc promotions and current duty charge etc. which is leading to avoidable litigation. At this stage, another counter was filed by official respondents i.e. MCD, in which it has been stated that due to operation of stay on the seniority list of Executive Engineers (Civil), it was not possible to fix the seniority of Superintending Engineers (Civil) and, therefore, regular appointment to the post of CE (Civil) could not be made. When Writ Petition No. 4337/2010 filed by Shri Pradeep Bansal was withdrawn, the MCD decided to fill up three vacancies on the post of CE (Civil) by assigning current duty charge. The circular of the MCD dated 14.12.1973 (Annexure A-2) has already been referred to earlier. The Recruitment Rules for the post of CE (Civil) stipulated seven years service in the grade of SE, therefore, in case of current duty charge, 2/3rd of seven years i.e. five years of regular service was required. According to official respondents MCD, seniority of officers under consideration was also of primary concern. It has been stated that the Screening Committee recommended only two SEs, who fulfilled the conditions stipulated in the aforesaid guidelines for assignment of current duty charge. The Personnel Department held that current duty charge is not a promotion and, therefore, the principle of seniority would be binding. Accordingly, respondent no.4 was found eligible and orders were issued.
8. We have heard both the learned counsel and perused the record on file including the record of the MCD regarding promotion to the post of Chief Engineer (Civil).
9. We have also perused in detail the minutes of the meeting of the Screening Committee on 23.01.2012 who had observed as follows:
10. The Committee also observed that Shri Pradeep Bansal, SE/Civil (Adhoc) does not fulfill the requirement of the circular dated 14.12.1973 for assignment of CDC to the grade of the Chief Engineer (Civil) as he has not completed 2/3rd length of the service in the grade of SE (Civil) prescribed for regular promotion to the grade of CE (Civil). Further, he is falling short by more than 2 years of qualifying service for this promotion. Therefore, his case for assigning CDC of CE (Civil) cannot be considered. meaning thereby that the suitability of applicant was not considered because he was found ineligible.
10. Subsequently, the Director (Personnel), who is junior to the members of the Screening Committee, has made several observations on the recommendations of the Screening Committee stating that the current duty charge is not a promotion but it only entails shouldering of higher responsibilities without higher salary. Referring to circular dated 14.12.1973 (Annexure A-2), he has emphasized clause (1) of the Circular which reads:
Current Charge arrangements should be made only in the order of seniority subject to the condition that the official/ officer being otherwise fit with reference to service character rolls and clearance reports from the DOV/DOI. According to Director (Personnel), Shri Pradeep Bansal could not have been overlooked for current duty charge as he was senior to Shri P.K. Khandelwal. The Director (Personnel) also noted that Shri Pradeep Bansal had been appointed on ad hoc basis to the post of SE (C) on 4.02.2009 but on current duty charge basis, he had been looking after the duties of SE ) since 2004. He had also given a list of officers who had been given current duty charge but were having less experience than required as per the aforesaid Circular. He had also noted that if only two officers are given current duty charge, Shri Pradeep Bansal may go to Court and challenge the decision.
11. When this note was put up to the Additional Commissioner, he had observed that the Director (Personnel) had no authority to question the wisdom of the Screening Committee and that he should have simply placed the matter for decision by the higher authorities. It is relevant to note that the Additional Commissioner had specifically noted that in MCD, current duty charge lasts for a long period and the officer given such charge exercises all administrative, financial and statutory powers of the higher post. He has also clarified that clause (1) of the Circular dated 14.12.1973 regarding seniority depends on clause 5 of the same Circular. The two read and interpreted together mean that an officer has to fulfill the eligibility criteria and then only the seniority will come into play. It has also been clarified that the period spent on current duty charge is not counted or considered eligibility for further promotion. It is also stated by the Additional Commissioner that the court case filed by Shri Pradeep Bansal was withdrawn by him in his own interest and that there was no bargaining that if he withdraws his case, he will be given promotion. It is also recorded that every officer is free to approach the Court of Law. The Additional Commissioner had thus submitted the matter to the Commissioner, MCD for taking appropriate view. Orders of the Commissioner, MCD are reproduced below:
I have perused the minutes of the Screening Committee placed on file. I have also perused the notes of Director/ Personnel and Addl. Commissioner/ CED. In the facts and circumstances of the matter I am inclined to agree with the views of Director/Personnel in as much as that there is a need to follow a uniform policy in this regard. It is therefore proposed that current duty charge (without promotion) of the post of Chief Engineer (Civil) may be allowed to be assigned to Sh. Naurang Singh SE/Civil Sh. Pradeep Bansal SE/Civil Sh. P.K. Khandelwal SE/Civil The position which emerges thus is as follows.
12. There were three vacant posts of CE (Civil) in MCD, which could not be filled by regular promotion as no officer was fulfilling eligibility criteria of seven years regular service as SE. MCD decided to fill the posts on the basis of current duty charge, which is not in the category of promotion but it entails shouldering of higher responsibility and exercising of all administrative and financial powers of the higher post without availing of higher pay scale. The circular dated 14.12.1973, which has been reproduced earlier in this order is the guiding policy with regard to the current duty charge. As stated in the circular, consideration for current duty charge will be made on the basis of seniority but it is also stated very clearly in Clause 5 of this circular that only those officers could be considered for current duty charge who have rendered 2/3rd of the service prescribed for purpose of regular appointment. As we have seen, the applicant was promoted on ad hoc basis to the post of SE) in the year 2006 whereas respondent no.4 was promoted on ad hoc basis to the said post only in the year 2009. It is thus seen that though respondent no.4 fulfills the seniority criteria but when it comes to clause 5 of the circular, he falls short by almost two years of the required length of service of five years.
13. Respondents have tried to state that respondent no.4 has been looking after the work of the post of SE on current duty basis since 2004 and, therefore, has the necessary experience. They have also taken the stand that in earlier precedents, persons not having required length of service have been given current duty charge by the MCD. However, we are not convinced by this argument. In clause 5 of the circular of MCD dated 14.12.1973, the words should be considered have been used. The fact that this provision has not been adhered to by MCD earlier would not justify the present position, which is certainly not in accordance with rules. They could have gone by the seniority, if there were no guidelines but once guidelines were issued, they ought to have been followed. This fact has been adequately highlighted by the Screening Committee in its meeting held on 23.01.2012, which has been quoted earlier. In fact, the suitability of respondent no. 4 has not even been assessed by the Committee as he was not eligible. When the circulars and instructions regarding assigning current duty charge are in existence in MCD, there is no reason why they should not be adhered to. We have also noted that respondent no.4, who was holding current duty charge of SE since 2004, was not found suitable for ad hoc promotion as SE in 2006. It is only when punishment had been imposed upon him in 2009 that he could get ad hoc promotion in 2009. Thus the question is when a person was not found suitable for grant of even ad hoc promotion can the same period be taken into consideration for holding next rank even if on current duty charge. Moreover if current duty charge could be given only on the basis of seniority, there was no need to constitute Screening Committee. The purpose of constituting Screening Committee is to assess the suitability of persons for next post and for this purpose sufficient names should be placed before the Selection Committee.
14. On the basis of above observations, we are of the view that impugned orders dated 1.02.2012 with regard to respondent no. 4 are not in accordance with the circular dated 14.12.1973. However, we notice that in the impugned orders, the arrangement for current duty charge has been made up to 16.05.2012 or till the posts are filled on regular basis. We, therefore, do not wish to disturb the arrangement made till 16.05.2012. We direct the respondents to refer the matter to the Screening Committee with sufficient number of S.E. so that their suitability may be assessed and after that fresh orders should be passed in accordance with the provisions of circular dated 14.12.1973 in letter and spirit to be operative from 17.05.2012. This exercise should be completed within one week to avoid any further litigation. The OA is accordingly disposed of with directions mentioned above.
(Manjulika Gautam) (Meera Chhibber) Member (A) Member (J) /dkm/