Central Administrative Tribunal - Delhi
Bhim Singh vs Commissioner Of Mcd on 27 May, 2011
Central Administrative Tribunal Principal Bench OA No.2338/2010 New Delhi, this the 27th day of May, 2011 Honble Mrs. Meera Chhibber, Member (J) Honble Dr. A.K. Mishra , Member (A) Bhim Singh S/o Shri Amar Singh R/o H.No. 610-611, Bankner, Narela, Delhi-110040 D.O.A. 21.1.1984 School Name-Narela Colony-II. ..Applicant By Advocate: Shri B.S. Chowdhary. Versus 1. Commissioner of MCD Town Hall, Chandini Chowk, Delhi-110 006. 2. Director of Education Municipal Corporation of Delhi, Nigam Bhavan, Kashmere Gate, Delhi-110006. 3. Additional Commissioner of Education, Municipal Corporation of Delhi, Nigam Bhavan, Kashmere Gate, Delhi-06. 4. Dy. Education Officer (Administration) Municipal Corporation of Delhi, Nigam Bhavan, Kashmere Gate, Delhi-06. ..Respondents By Advocate: Shri R.K. Jain. ORDER
Mrs. Meera Chhibber, Member (J) Applicant has challenged the recommended seniority list dated 12.11.2009 and sought a direction to the respondents to consider him (Physical Education Teacher) for the post of Principal, Primary School.
2. It is submitted by the applicant that he was appointed as a Physical Education Teacher (hereinafter referred to as PET) as per the proposed amendment (page 32) in the post of Headmaster/Headmistress re-designated as Principal (Primary School) in Education Department of Municipal Corporation of Delhi. PETs are also included in the feeder cadre for promotion. However, by ignoring the said amendment, respondents have issued promotion order on dated 12.11.2009 whereby number of teachers have been promoted as Principals but none of the PETs have been included in the said list.
3. Counsel for the applicant invited our attention to page 19 wherein under Right to Information Act he was informed that as many as 57 PETs have been promoted to the post of Principal (Primary School) on the basis of amended RRs even though the RRs have not yet been notified. He thus submitted that since respondents have already promoted PETs to the post of Principal (Primary School), there is no justification to deny the promotion to the applicant on the basis of proposed RRs. Counsel for the applicant strenuously argued he cannot be discriminated against.
4. Respondents on the other hand have stated the post of Teacher (Primary) and Physical Education Teacher have separate RRs, sanctioned strength and promotional avenues. The Physical Education Teacher can be promoted as (a) School Inspector (Physical) and (b) Assistant Education Officer (Physical) whereas a Teacher (Primary) can be promoted as (a) Principal (Primary School)/Headmaster (b) School Inspector (General) and ( c) Assistant Education Officer (General) as per the existing RRs. The PETs are not in the feeder category. They have admitted that as many as 57 PETs were promoted as Principals (Primary School) on the basis of proposed amendment in the Rules. However, 2 Assistant Teachers had challenged the said action of the respondents by filing Writ Petition in the Honble High Court of Delhi which was transferred to this Tribunal and renumbered as TA 233/2009. According to the respondents Tribunal vide its order dated 14.5.2009 had given the following directions:-
We now direct them to reconsider the issue whether they can bring an Assistant Teacher as feeder category to the post Principal, redesignated as Headmaster/Headmistress when that category has their own avenue of promotion. It is also to be reconsidered that ad hoc promotion given to them when RRs were not final and published, should they be continued in consonance with law or not.
It is in compliance with the above judgment that respondents did not consider the other categories of teacher for promotion except those who were in the feeder category as per the existing RRs. They have further explained the department is in process to redraft the RRs of Headmaster/Headmistress, School Inspectors and Teachers as per the recommendations of 6th Pay Commission. They are also considering whether a post could have two promotional avenues. Since PET is not in the feeder category, they cannot be considered to the post of Principal (Primary Schools)/Headmaster/Headmistress. They have thus prayed that the OA may be dismissed.
5. We have heard both the counsel and perused the pleadings as well.
6. Respondents have annexed the existing RRs for the post of Headmaster/Headmistress in the Education Department of Municipal Corporation of Delhi. According to it, only Assistant Teacher/Assistant Teachress with 7 years service in the grade after appointment thereto on regular basis is eligible to be considered for the post of Headmaster/Headmistress. PET is not in the feeder category (page 53). It is also an admitted position that proposed amendments have not yet been notified, therefore, even if in the proposed amendment in the RRs of Headmaster/Headmistress the post of PET has been included in the feeder category, it cannot be given effect to unless those amendments are notified. Simply because at an earlier point of time some PETs were promoted as Principal (Primary School) on the basis of proposed amendments, it would not give any legal right to the applicant to claim the same benefits particularly when we are informed by the respondents that those proposed amendments have not yet been notified.
7. At this juncture it would be relevant to refer the judgment of Honble Supreme Court in the case of State of Bihar and Others Vs. Kameshwar Prasad and Others reported in 2000 (9) SCC 94 wherein it has been held that the concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals, others cannot claim the same illegality or irregularity on ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits.
8. In view of above, applicants claim for a direction to the respondents to consider him for the post of Principal (Primary School) cannot be acceded to because proposed amendments have not yet been notified. Even otherwise, it is seen that the amendment of the Recruitment Rules for the post of Headmaster/Headmistress wherein PET, Assistant Teachers (Music) and (Drawing) were brought within the feeder category was challenged by an Assistant Teacher (General) in TA No.233/2009 wherein the Tribunal was pleased to give certain directions to the respondents to reconsider whether they can bring an Assistant Teacher as a feeder category when they have their own avenue of promotion and whether ad hoc promotion given to them when RRs were not finalised and published should be continued in law or not. Pursuant to the above directions, it is stated by the respondents that they are in the process of redrafting the RRs to the post of Headmaster/Headmistress as per the recommendations of the Sixth Pay Commission meaning thereby that till date the proposed amendment has not yet been finalized or notified. In the absence of Notification of the amended RRs, no direction can be given to the respondents to implement the proposed RRs as it is the prerogative of the Department to decide how the RRs are to be amended, which process is stated to be going on.
9. In view of above, relief as sought by the applicant cannot be granted. The OA is accordingly dismissed. No costs.
( Dr. A.K. Mishra) ( Mrs. Meera Chhibber)
Member (A) Member (J)
Rakesh