Central Administrative Tribunal - Delhi
Coram vs Chairman on 8 April, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A.NO.2305 OF 2012 New Delhi, this the 8th day of April,2015 CORAM: HONBLE SHRI ASHOK KUMAR, ADMINISTRATIVE MEMBER & HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER Sh.Gauri Shankar, S/o late Sh.Karam Chand, R/o 2594, B Bock, SGM Nagar, Faridabad .. Applicant (By Advoate: Mr.M.L.Chawla) Vs. 1. Chairman, DJB through Chief Secretary, GNCT of Delhi, Raj Niwas, Rajpur Road, New Delhi. 2. Assistant Commissioner (D) through Commissioner, Delhi Jal Board, Govt. of NCT of Delhi. 3. The Member (Administration), Delhi Jal Board, Govt. of NCT of Delhi, Varunalaya Comp,lex, Jhandewalan, New Delhi 4. The Chief Executive Officer, Delhi Jal Board, Varunalaya Complex, Phase II,Karoll Bagh, New Delhi 110005 5. The Director (A&P), Delhi Jal Board, Varunalaya Complex, Phase II, New Delhi .. Respondents (By Advocate: Mr.Pratap Shankar) . ORDER Raj Vir Sharma, Member(J):
The applicant is a physically handicapped person. He was initially appointed as a Peon/Assistant Meter Reader-cum-Bill Distributor on 28.12.1983. He earned promotions to the post of LDC and then to the post of UDC. Thereafter, he was promoted to the post of Junior Accountant with effect from 29.1.1997. According to the applicant, in the year 2002 he became eligible for promotion to the post of Accountant in terms of the Recruitment Rules. The representations made by the applicant on 11/15.2.2002, 16.5.2005 and 28.10.2005, seeking consideration of his case for promotion to the post of Accountant against 3% PH quota were turned down by the respondents, vide letter dated 22.2.2006 on the ground that as per rules there was no reservation quota for PH employees for promotion in Groups A and B posts. The applicants further representation dated 20.06.2007 was also rejected by the respondents, vide letter dated 12.11.2007. Thereafter, the applicant made two more representations on 5.10.2009 and 25.1.2010/3.2.2010. There being no response, the applicant filed OA No.2800 of 2010 seeking a direction to the respondents to grant him promotion to the post of Accountant against 3% PH quota in the said post with retrospective effect from the date when he became due for such promotion, with all consequential benefits.
2. The Tribunal, vide order dated 16.10.2010, disposed of the said OA No.2800 of 2010. The Tribunal examined the provisions of DoP&Ts O.Ms. dated 18.2.1997, 16.1.1998 and 29.12.2005 and observed in paragraph 5 of the order dated 16.12.2010 (ibid) as follows:
On a plain reading of the above OM dated 29.12.2005, it is clear that there is to be a reservation of 3% of the vacancies in Group A,, B, C & D posts for persons with disabilities in case of direct recruitment and that there will be a 3% reservation in case of promotion to Group C and D posts in which the element of direct recruitment does not exceed 75%. However, there is no mention of reservation in case of promotion to Group A and B posts. Thus, the applicant would not be able to get the benefit of reservation for Physically Handicapped in promotion to the post of Accountant as this post is a Group B post and the OM dated 29.12.2005 has been issued in supersession of all earlier instructions on the subject. Again, the Tribunal, after examining the procedure to be followed for reservation to the PH in case of promotion prescribed in the DoP&Ts O.M. dated 16.1.1998, observed, in paragraph 7 of the order dated 16.12.2010, as follows:
From the above, it would appear that while filling up of any post by promotion, by selection, if adequate number of physically handicapped candidates of the appropriate category of handicap are not available within the normal zone, the zone of consideration may be extended to five times the normal size and the physically handicapped persons falling within the extended zone may be considered. While the respondents have categorically stated that the applicant did not make it to the zone of consideration/extended zone of consideration which goes up to 10 numbers and that the applicant stands at Sl.No.24/98 only, it has not been explained on what basis and in terms of which instructions they have calculated the extended zone of consideration to be only 10. It would be necessary for the respondents to cite the relevant instructions in terms of which they have arrived at the extended zone of consideration. Accordingly, while disposing of O.A.No.2800 of 2010, the Tribunal issued the following direction:
9. In view of the discussion in para 7 above, we are of the considered opinion that the interest of justice would be met if the present OA is disposed of by directing the respondents to verify whether the extended zone of consideration, in the case of the applicant, has been arrived as per the instructions contained in the OM of 16.01.1998, referred to above, as well as the then extant rules on the subject. After such re-verification, a clear detailed speaking order should be passed by the respondents in the matter and the same should be communicated to the applicant. This exercise shall be completed within a period of six weeks from the date of receipt of a copy of this order. The OA is accordingly disposed of. No costs.
3. In compliance with the above direction of the Tribunal, the respondents passed an order dated 3.12.2010, which reads as follows:
The DoP&T O.M.No.36035/7/95-Estt.(SCT), dated 16.1.98 says that where adequate number of physically handicapped candidates of the appropriate category handicap are not available within the normal zone, the one of consideration may be extended to give time the normal size and the physically handicapped persons falling within the extended zone may be considered.
There were two vacancies in the cadre of Accountant under promotion quota in the year 2000 and as per DOP&T O.M.No.22011/1/90-Estt.(D), dated the 12th October, 1990 and 22nd April, ,1992, the extended zone of consideration for two vacancies is 10. In the year 2001 there was one regular vacancy of Accountant which was available, the extended zone of consideration was five. In the year 2002 & 2003 one vacancy in each year was available in the cadre of Accountant and both the years the extended zone of consideration could be taken up to five. In the year 2005, 02 vacancies were available in the cadre of Accountant for which extended zone could be considered up to 10. The name of Sh.Gauri Shankar stood at Srl.No.24/98 and in none of the vacancy years he could be considered for promotion even in the extended zone of consideration.
4. In spite of the above order dated 3.12.2010 being passed by the respondents in compliance with the Tribunals direction, the applicant complained of non-implementation of the Tribunals order and filed MA No.241 of 2011 purportedly under Section 27 of the Administrative Tribunals Act, 1985. The Tribunal, by order dated 22.2.2011, disposed of the said MA No.241 of 2011. In paragraphs 6 and 7 of the order dated 22.2.2011, the Tribunal observed thus:
6. It is noticed that the speaking order passed by the respondents talks of give times the normal size (which makes no sense) instead of five times the normal size. If this is a typographical error (which presumably it is), the same would need to be corrected. While doing so it would also be necessary to specify what was the normal zone of consideration in each of the years (referred to above) and whether five times this normal zone was made the extended zone of consideration.
7 Keeping in mind the fact that the grievance relates to a physically challenged person and in view of the interest of justice and transparency, we dispose of the MA by directing the respondents to pass a fresh speaking order clarifying the issues mentioned in para 6 above. The issues raised by the applicant in paras 7 & 8 of his MA may also be addressed in the speaking order. The revised order should be issued and communicated to the applicant within three weeks from the date of receipt of a copy of this order.
5. In compliance with the Tribunals order dated 22.2.2011 passed in MA No.241 of 2011, the respondents issued office order dated 14.9.2011. The applicant, being still dissatisfied with the said order dated 14.9.2011, once again filed MA No.1567 of 2011. The Tribunal, vide order dated 23.1.2012, disposed of the said MA No.1567 of 2011. In paragraphs 9 and 11 of the order dated 23.1.2012, the Tribunal observed that the respondents have dealt with the issue of zone of consideration as well as preparation of seniority list after deleting retired/resigned/promoted officials from the list as well as issue of reservation applicable for promotion from Group C to Group B posts; that the order in OA stood duly complied with; that in case the applicant has any further grievance, the proper remedy would be to seek redressal of his grievance in the fresh proceeding in the original side; and that he cannot have fresh proceeding through Misc. Application seeking implementation of the order in the OA.. Accordingly, MA No.1567 of 2011 was disposed of by the Tribunal.
6. In view of the observation of the Tribunal contained in the order dated 23.1.2012 passed in MA No.1567 of 2011, the applicant has filed the present O.A.No.2305 of 2012 seeking the following reliefs:
8.1 To quash and set aside the impugned order dated 14-09-2011 (A-1), considering the facts, grounds and circumstances;
8.2 To direct the respondents to investigate the obdurate attitude and willful postponement of promotion without recommending the name of the applicant for consideration by the DPC held from the year 2002 onward till date;
8.3 To summon the record of promotion file of the applicant together with the policy which the respondents have been following in order to unearth the truth concealed beneath;
8.4 To direct the respondents to grant promotion to the applicant with retrospective effect from the date when the applicant became due for promotion with all consequential benefits;
8.5 To grant arrears of pay and allowances with penal interest in the event of success in this matter;
8.6 To pass any other order or orders, direction or directions as deemed fit in the facts and circumstances of the case;
8.7 To allow this OA with heavy cost because the applicant has been dragged into avoidable litigation.
7. Opposing the O.A. the respondents have filed a counter reply. The applicant has also filed a rejoinder reply to the respondents counter reply.
8. We have perused the pleadings and have heard Mr.M.L.Chawla, learned counsel appearing for the applicant, and Mr.Pratap Shankar, learned counsel appearing for the respondents.
9. During the course of hearing, Mr.M.L.Chawla, learned counsel appearing for the applicant filed copy of a news clipping about the decision of the Honble Supreme Court upholding the judgment of the Honble Bombay High Court which laid down three percent reservation for disabled persons in all categories of Government jobs including appointment and promotion to IAS. He also filed a copy of the judgment dated 4.12.2013 passed by the Honble Bombay High Court in PIL No.106 of 2010 (National Confederation for Development of Disabled and another v. Union of India and others). He invited our attention to paragraphs 11 and 12 of the judgment of the Honble High Court of Bombay. The said paragraphs 11, 12 and 13 of the judgment read thus:
11. In view of the aforesaid decision of the Supreme Court, it is clear that reservation has to be computed with reference to total number of vacancies in the cadre strength and, therefore, no distinction can be made between the posts to be filled in by direct recruitment and by promotion. Total number of vacancies in the cadre strength would include the vacancies to be filled in by nomination and vacancies to be filled in by promotion.
12. The Supreme Court has given following directions to the Government of India to ensure proper implementation of the reservation policy for the disabled and to protect their rights.
54. In our opinion, in order to ensure proper implementation of the reservation policy for the disabled and to protect their rights, it is necessary to issue the following directions:
(i) We hereby direct the appellant herein to issue an appropriate order modifying the O.M. dated 29.12.2005 and the subsequent O.Ms. consistent with this Courts order within three months from the date of passing of this judgment.
(ii) We hereby direct the appropriate Government to compute the number of vacancies available in all the establishments and further identify the posts for disabled persons within a period of three months from today and implement the same without default.
(iii) The appellant herein shall issue instructions to all the departments/ public sector undertakings/ Government companies declaring that the non-observance of the some of reservation for persons with disabilities should be considered as an act of non-obedience and Nodal Officer in department/ public sector undertakings/ Government companies, responsible for the proper strict implementation of reservation for person with disabilities, be departmentally proceeded against for the default.
13. In view of the above directions, it is clear that the respondents will have to give benefits of reservation to persons with disabilities in the matter of promotion to posts in the Indian Administrative Services by applying the Office Memorandum dated 29 December 2005 and subsequent Office Memorandum consistent with the aforesaid judgment dated 8 October 2013 of the Supreme Court and accordingly give benefits of the reservation with effect from the date of issuance of the said Office Memorandum dated 29 December 2005. A copy of the DoP&Ts O.M. dated 6/7.1.2015, printed in Swamynews February 2015, was also filed during the course of hearing. The said O.M. dated 6/7.1.2015 reads thus:
GI, Dept. of Pers. & Trg. O.M. No.36035/4/2015-Estt.(Res), dated 6/7.2015.
Amendment in Para 15(i) of OM dated 29.12.2005 Department of Personnel & Training vie O.M.No.36035/3/2004-Estt.(Res.) dated 29.12.2005 (Sl.No.106 of Swamys Annual, 2005) had issued consolidated instructions with regard to reservation for persons with disabilities in posts and services of the Government of India, superseding all previous instructions issued on the subject.
2. In accordance with the directions of the Honble Supreme Court in its judgment, dated 8.10.2013, in the matter of Civil Appeal No.9096 of 2013 (arising out of SLP (Civil) No.7541 of 2009) titled Union of India and another v. National Federation of the Blind and others, Para 14 of the said O.M. dated 29.12.2005 was amended to the following extent:-
Reservation for the persons with disabilities in Group A or Group B posts shall be computed on the basis of total number of vacancies occurring in direct recruitment quota in all the Group A posts or Group B posts respectively in the cadre.
3. The National Federation of Blind approached the Honble Delhi High Court through Civil Miscellaneous Appeal No.230/2014 stating that the Department of Personnel & Training did not implement the direction of the Honble High Court of Delhi in WP (C) No.15828/2006 and Honble Supreme Court in Civil Appeal No.9096/2013. On this appeal, the Honble Delhi High Court in its judgment, dated 17.7.2014 had directed that further modifications in Para 15 of the OM dated 29.12.2005 has to be carried out so that the directions of the Honble Supreme Court to compute 3% of reservation on total number of vacancies in the cadre strength can be implemented in accordance with these directions. Para 15(i) of the said OM dated 29.12.2005 is amended to the following extent:-
Reservation for persons with disabilities in Group A and Group B posts shall be computed on the basis of total number of vacancies occurring in direct recruitment quota in all the Group A posts or Group B posts respectively, in the cadre. Separate rosters for Group A posts and Group B posts in the establishment shall be maintained.
4. All the Ministries/Departments are requested to bring the above instructions to the notice of all Appointing Authorities under their control.
10. It is pertinent to mention here that the learned counsel appearing for the applicant has not produced a copy of the judgment of the Honble Supreme Court, which is referred to in the news clipping filed by him during the course of hearing. It transpires from the DoP&Ts O.M. dated 6/7.1.2015, as reproduced above, that the DoP&T, while issuing the said O.M., has not taken into account the judgment of the Honble High Court of Bombay in National Confederation for Development of Disabled & another v. Union of India & others, which, according to the applicant, has been upheld by the Honble Supreme Court. As the learned counsel for the applicant has filed the copy of the judgment of the Honble Bombay High Court, and copy of the news clipping, which states that the judgment of the Honble Bombay High Court has been upheld by the Honble Supreme Court, only at the stage of hearing, this Tribunal, without affording an opportunity to the respondents of putting forth their plea in that behalf, finds it difficult to examine and express any opinion as to whether, or not, the principle laid down by the Honble Bombay High Court, which, according to the applicant, has been upheld by the Honble Supreme Court, is to have retrospective application, more so when in the judgment of the Honble Bombay High Court it has not been expressly directed that the principle laid down therein will have retrospective application, and when the DoP&T is yet to issue necessary instructions by way of amendment in its O.M. dated 29.12.2005 in compliance therewith. The cardinal principle of construction of a statute is that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. Moreover, in the present O.A., the issues which arise for our consideration are as to whether the respondents have acted in accordance with the DoP&Ts O.Ms. dated 18.2.1997 and 16.1.1998, and whether the office order dated 14.9.2011(Annexure A/1) issued by the respondents is fraught with any illegality thereby warranting interference of this Tribunal. In this view of the matter, the judgment of the Honble High Court of Bombay, the news clipping, and the DoP&Ts O.M. dated 6/7.1.2015 are of no avail to the applicant.
11. It has been contended by the applicant that having been promoted to the post of Junior Accountant with effect from 29.1.1997, he became eligible for promotion to the post of Accountant in 2002, and that the respondents filled up 8 vacant posts of Accountant in the year 2000 and 13 vacancies in the post of Accountant in the year 2001, without carrying forward the vacancies meant to be filled up by way of promotion of PH candidates against the 3% quota reserved for them. Thus, the sum and substance of the arguments of the applicant is that the respondents have not acted in accordance with the policy of reservation for PH and therefore, the impugned office order dated 14.9.2011 is liable to be quashed and appropriate direction issued to the respondents, as prayed for in the O.A.. For considering the applicants contentions, it would be necessary to extensively quote the office order dated 14.9.2011 (ibid) as follows:
Honble Central Administrative Tribunal in the case of MA No.1567/11 in OA No.2800/10 of Shri Gauri Shankar v/s Delhi Jal Board on 23.08.2011 directed to pass a fresh order in detail wherein the correction with regard the TA No.679/09 in terms of para 7 has to be made. The order has also to be given in detail as to how and why applicant is at serial No.24 in the Seniority list instead of at serial no.18.
In compliance to the direction of Honble Tribunal and in partial modification of Office Order No.92 (Min) dated 26.04.2011, the detailed speaking order is as under:-
Para No.7 In terms of para 7, a decision has been arrived by the Honble Central Administrative Tribunal in the cases of TA Nos. 679/2009, 522/2009 and 521/2009 in the case of Sh.Vir Singh Lehra & Others V/s DJB, Sm. Usha Chaudhary & others V/s DJB and Sh. D.S.Rawat v/s DJB on 04.03.11 as under:-
(a) TA No.679/2009: The Honble Tribunal dismissed this TA as being without merit because it is clear from the clarification given by the Government of NCT of Delhi that there would be no limit to the validity of the list of selected candidates and it would continue to remain in operation till the last person selected was appointed.
(b) TA No.521/2009: The Honble Tribunal opined that the applicant D.S.Rawat was correctly appointed and that his reversion was unwarranted. In view of this we quash and set aside the impugned order dated 20.09.2002.
(c ) TA No.522/2009: The only relief claimed by the applicants in TA number 522/2009 is that they should be given the benefit of appointment from the date of occurrence of vacancies.
Para No.8 The DOP&T OM No.36035/7/96-Estt. (SCT) dated 16.01.08 says that where adequate number of physically handicapped candidates of the appropriate category of handicap are not available within the normal zone, the zone of consideration may be extended to five times the normal size and the physically handicapped persons falling within the extended zone may be considered.
Year wise vacancies of Accountants from 2000 onwards is as under:-
2000 02 2001 01 2002 01 2003 01 2004--2005 02
Shri Gauri Shankar was promoted as Junior Accountant on 29.01.1997 and as per Recruitment Rules he was eligible for promotion as Accountant on 01.01.2003 i.e. after completion of 05 years of regular service and was eligible for consideration for the vacancies of 2002-03. As per final seniority list of Junior Accountants issued on 26.03.1992 and further on 31.10.2011, the name of Shri Gauri Shankar Stood at serial No.24 out of 35 after deleting retired/resigned/promoted officials from the list. As such, against the 02 vacancies of 2002-03, the normal zone is 08 and the extended zone will be 10. Hence, his name did not come even in the extended zone of consideration.
Further, it is added that as per DOP&T OM No.36035/1/89-Estt.(SCT) dated 20.11.89 reservation for promotion in Physically Handicapped category is applicable (i) within group D (ii) from group D to Group C and (iii) within Group C, reservation will be provided for the three categories of the physically handicapped persons, namely, the visually handicapped, hearing handicapped and the orthopaedically handicapped. Another order of DOP&T dated 16.01.1998 envisages the procedure to be followed for reservation to the PH in cases of promotion that (ii) the existing policy of reservation for SCs/STs, including for the physically handicapped in promotion in all Groups is applicable to all grades and services, where the element of direct recruitment does not exceed 75%. Further, in the same order at (2), it is also clarified that the manner of calculation of the vacancies for the physically handicapped shall be as laid down in this departments O.M.No.36035/8/89-Estt.(SCT) dated 20.11.1989 so far as Group C and D posts are concerned. As such, this OM has re-iterated the orders of Non-application of reservation for PH candidates for promotion from Group C posts to Group B posts and within Group B posts. This was also clarified in DOP&T OM No.36035/4/2003-Estt.(res) dated 8th July 2003 and later on vide DOP&T OM No.36035/3/2004-Estt.(res) dated 29th December 2005.
In view of the above, it is concluded that there is no reservation applicable for promotion from Group C to group B posts since 1989 onwards and no benefit of reservation for PH is available for Shri Gauri Shankar for promotion to the post of Accountant which is a Group B post.
This order is issued in compliance of Central Administrative Tribunal directions dated 23.08.2011 and in partial modification to Office Order No.92 (Min.) dated 26.04.2011.
Further, this order is also issued with the approval of Competent Authority. Admittedly, the applicant was promoted to the post of Junior Accountant with effect from 29.1.1997. Thus, he cannot be said to have completed five years service in the grade of Junior Accountant on 1.1.2002 to become eligible to be considered for promotion to the post of Accountant on 1.1.2002. If at all the respondents filled up 8 vacant posts of Accountant in the year 2000, and 13 vacancies in the post of Accountant in the year 2001, without carrying forward the vacancies, if any, meant to be filled up by way of promotion of PH candidates against the 3% quota reserved for them, and the applicant felt aggrieved thereby, he ought to have made appropriate representation to the departmental authorities agitating his grievance within a reasonable period thereafter and sought redressal of his grievance in Court/Tribunal within the prescribed period of limitation. It is the case of the applicant that the representations made by him in 2002 and 2005 were rejected by the respondents in 2006, and his further representation dated 27.6.2007 was also rejected by the respondents, vide their letter dated 12.11.2007. It is pertinent to mention here that the applicant has not furnished the copies of the said representations along with the present O.A. Instead of approaching the Court/Tribunal either in 2006 or in 2007, when his representations were rejected by the respondents, within a reasonable period thereafter or within the prescribed period of limitation, the applicant made further representations dated 5.10.2009 and 25.1.2010/3.2.2010, and thereafter approached the Tribunal in OA No.2800 of 2010. Thus, it is clear that the issue raised by the applicant in the earlier OA No.2800 of 2010 was a dead and/or stale one. The question of delay & laches on the part of the applicant was neither raised nor decided by the Tribunal while disposing of the said O.A. No.2800/10, vide order dated 16.10.2010 (ibid). The office order dated 14.9.2011 (Annexure A/1), which is impugned by the applicant in the present O.A., has been passed by the respondents after considering the case of the applicant in compliance with the direction issued by the Tribunal in OA No.2800 of 2010. In Union of India & ors v. M.K.Sarkar, (2010) 2 SCC 59, the Honble Supreme Court, after referring to C.Jacob v. Director of Geology & Mining and another, (2008)10 SCC 115, has ruled that when a belated representation in regard to a stale or dead issue/dispute is considered and decided, in compliance with direction by the court/tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the dead issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a courts direction. Neither a courts direction to consider a representation, nor a decision taken by the Department in compliance with such direction, will extend the limitation, or erase the delay and laches. After considering the facts and circumstances of this case, in the light of the principles laid down by the Honble Supreme Court, we are not inclined to entertain the issue as raised by the applicant in the present O.A. This apart, one more aspect to be taken note of is that while questioning the decisions taken in 2000 or 2001 by the respondent-Department in the present O.A., the applicant has neither challenged the appointments of the officials to the post of Accountant made during the said years, nor has he impleaded the said officials as party-respondents in the present O.A. After going through the impugned office order dated 14.9.2011, we have found that after the applicant became eligible for being considered for promotion to the post of Accountant, he could not come in the extended zone of consideration in the year 2003 when one vacant post of Accountant was filled up and in the year 2005 when two vacant posts of Accountant were filled up by the respondents. The applicant has neither challenged the appointments of the officials to the post of Accountant made during 2003 and 2005, nor has he impleaded the said officials as party-respondents in the present O.A. In the above view of the matter, we find no scope to interfere with the impugned office order dated 14.9.2011 (Annexure A/1) and to grant other reliefs as claimed by him in the present O.A.
12. In the light of the above discussions, we hold that the applicant has not been able to make out a case for any of the reliefs claimed by him, and that the O.A. is liable to be dismissed. Accordingly, the O.A. is dismissed. No costs.
(RAJ VIR SHARMA) (ASHOK KUMAR) JUDICIAL MEMBER ADMINISTRATIVE MEMBER AN