Central Administrative Tribunal - Delhi
Sh. Yogesh Kumar vs M.C.D. And Other Through on 11 February, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 3719/2009 New Delhi, this the 11th day of February, 2011 HONBLE SHRI JUSTICE S.D.ANAND, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) 1. Sh. Yogesh Kumar, S/o Sh. Atar Singh, R/o H.No.A-526/1, Gali No.1, South Gamri Extension, 4th Pusta, Delhi-110053. 2. Sh. Manoj Kumar S/o Lt. Sh. Om Prakash R/o H.No.5430, New Chandrawal, Delhi-110007. 3. Sh. Virender Punia S/o Sh. R.K.Punia R/o H.No.AA-84, Shalimar Bagh, Delhi-88. 4. Sh. Sanjay Rai, S/o Sh. Amrit Rai Luhera, R/o H.No.C-4/C, IInd Floor, Avantika Enclave, Rohini, Delhi-110085. 5. Sh. Lokesh S/o Sh. Sulan Singh R/o H.No.733A, Gaushala Road, Najafgarh, New Delhi-110043. 6. Sh. Sunder S/o Sh. Ramphal R/o C-2/5, Sultan Puri, Delhi-110085. 7. Sh. Dinesh Kumar, S/o Sh. Bir Singh R/o H.No.F-72, Budh Nagar, Inderpuri, Delhi-12. 8. Sh. Yatinder Kr. Kanwar S/o sh. Ramdhan R/o H.No.K-1, Extension 27/A, Mohan Garden, Uttam Nagar, New Delhi-110059. 9. Sh. Naresh Kumar S/o Sh. Ramdass R/o D-210, Dashrath Puri, Gali No.16, Dabri Palam Road, New Delhi-110045. 10. Sh. Mahesh Kumar S/o Sh. Neksaram R/o L-233, J.J.Colony, Wazirpur, Delhi-52. 11. Shri. Brij Bhushan S/o Sh. M.R.Paliya F-282, Lado Sarai, P.O.Mehrauli, New Delhi-110030. 12. Sh. Akhilesh S/o Sh. Tara Chand R/o H.No.69-B, Kundan Nagar, G.No.5, Near Bank Enclave, Laxmi Nagar, Delhi. Applicants (By Advocate: Sh. M.K.Bhardwaj) V E R S U S M.C.D. and other through 1. The Commissioner, Municipal Corporation of Delhi, Town Hall, Delhi. 3. The Chairman, Delhi Subordinate Services Selection Board, Karkardooma Delhi-92. Respondents (By Advocate: Sh. Ram Kawar for respondents No.1 & 3 Ms. Anju Bhushan for respondent No.2) O R D E R (ORAL)
Justice S.D.Anand:
1. It is apparent from a conjunctive perusal of the pleadings raised by the parties that the actual appointment of the applicants (in pursuance of their conceded selection) came to be impeded by pendency of a Writ Petition (Civil) No. 5661/2001 in Kunwar Pal & Others v. Govt. of N.C.T. of Delhi & Another that they came to be appointed much later than their batch mates from the general category.
2. Applicants have applied for a declaration that they are entitled to seniority with effect from the date they were selected by the DSSSB (hereinafter referred to as the Board).
3. The respondent No.1, (Municipal Corporation of Delhi) has averred that the appointments are made on the recommendation of the Board and on receipt of the Dossiers from the latter. The plea raised in the context is that the applicants having joined in the year 2005 cannot be allowed to claim seniority over the candidates who had already joined in the year 2003. The plea raised is that the seniority of applicants would be counted with effect from the date of joining and not with effect from the date they were selected by the Board.
4. The Board, by means of an independent counter, raised a plea that the examination for the relevant post was held on 11.08.2002, that the results of this particular category were declared on 4.2.2003 (in respect of OBC category, the result was kept pending for want of clarification regarding nativity. Later on in the year 2004, the result in respect of SC/OBC of Delhi was declared.)
5. A similar controversy came up before this Tribunal for adjudication in OA-133/2009 in Dr. Pawankumar N. Mali & Others v. The Secretary, Ministry of Health and Family Welfare Department, Govt. of NCT of Delhi and a Coordinate Bench of this Tribunal, vide order dated 02.02.2010, held as under:
6. In the light of the above discussion, we direct that the Applicants would be eligible for appointment to the post of Medical Officer (Ayurvedic) from the date three other persons selected along with the Applicants were appointed. They will not be entitled for back wages but the period will be counted for increments and their pay will be fixed at the time of joining by adding the increment they would have earned, had they joined their service from the retrospective date. It would also count towards seniority of the Applicants.
6. Our attention has not been invited to any law contrary to the judgment aforementioned. Further, it is not even the averment that the judgment aforementioned has been quashed in judicial review or by the Apex Court.
7. Even otherwise, we are of the view that the plea raised by the applicants is in order, it being in accord with the principles of fair play and natural justice. In this case, concededly the issuance of appointment letters in favour of applicants came to be withheld on account of the pendency of a Writ Petition (Civil). It is not a case where the applicants were not willing to join the Department. It is a pure and simple case wherein the applicants were disabled by the pendency of the Writ Petition aforementioned from joining. They cannot be made to suffer for the loss of foregoing seniority for no fault of theirs.
8. We would, accordingly, allow the OA and uphold the entitlement of applicants to seniority with effect from the date their batch mates came to be appointed. Though the applicants would not be entitled to back wages, the period aforementioned shall be counted for purposes of increments and this aspect shall also be retained in view at the time of fixture of the salary. In the circumstances of the case, appointment of applicants aforementioned shall be notional in character.
9. The parties shall bear their own costs of the cause in the circumstances of the case.
10. Disposed of accordingly.
(Justice S.D. Anand) Member (J) (Dr. Veena Chhotray) Member (A) San.