Central Administrative Tribunal - Delhi
Daryao Singh vs Municipal Corporation Of Delhi on 1 November, 2011
Central Administrative Tribunal Principal Bench TA No.87/2010 New Delhi this the 1st day of November, 2011. Honble Mr. M.L. Chauhan, Member (J) Honble Mrs. Manjulika Gautam, Member (A) Daryao Singh, S/o Shri Tikka Ram, R/o WZ-334, Naraina Village, New Delhi-110 028. -Applicant/Plaintiff (By Advocate Shri R.K. Pandit) -Versus- Municipal Corporation of Delhi Through Commissioner Town Hall, Chandani Chowk, Delhi. 110 006. -Respondent/Defendant (By Advocate Shri Hari Nath Ram) O R D E R Mr. M.L. Chauhan, Member (J):
Applicant in this TA had filed Civil Suit No.308/1997 before the Court of Civil Judge, Delhi, thereby praying that decree of mandatory injunction may be passed in favour of applicant/plaintiff and against the defendant, thereby directing the defendant to promote the plaintiff as UDC with full benefits, including back wages w.e.f. 10.1.1996. The relief was sought on the premise that applicant has been in the service of the defendant as junior clerk-cum-cashier since 13.12.1983. It was further pleaded that he was initially employed as peon and later on promoted to the post of LDC-cum-Cashier vide circular No.F-5/7/88-CED(C)/456 dated 5.12.1988. Copies of appointment letter as cashier-cum-clerk and that of promotion circular have been exhibited as PW-1/1 and PW-1/2 respectively. It is further pleaded that since the applicant was not promoted to the next post he filed a suit for declaration of mandatory injunction. However, during the pendency of the suit the applicant was promoted as LDC-cum-cashier w.e.f. 15.2.1979. Subsequently, the said suit was decreed in favour of applicant vide judgment and decree dated 16.11.1994, exhibit PW-1/4. Applicant further averred that vide office order dated 10.1.1996 (Exhibit PW-1/4) the respondents promoted 70 LDCs as UDCs but for the reasons best known to the respondent the applicant was not promoted. It is further averred that the defendant subsequently again issued promotion order of 7 LDCs to the posts of UDC, vide office order dated 15.3.1996 (Exhibit PW-1/5). Even in the said office order, name of the applicant was not included. Applicant further stated that being aggrieved by the office order dated 10.1.1996 he filed representation to the defendants on 18.1.1996 (Exhibit PW-1/6), followed by representations dated 12.3.1996, 9.5.1996 and 7.6.1996 but the defendant failed to give reply to the said representations. Applicant has also placed on record the final seniority list of LDCs dated 13.3.1992, as listed document, which was exhibited as PW-1/7. On the basis of this seniority list it has been averred that the name of the applicant should have been listed at serial No.470/470A. However, juniors to the applicant were promoted as UDCs, i.e., from serial No.470-503, but the applicant had not been promoted. It is stated that the applicant had also issued a legal notice to the respondents on 17.12.1996 but the respondent failed to give reply. Thus, according to the applicant cause of action arose on 10.1.1996 when 70 LDCs were promoted to the post of UDCs even juniors to him and again on 15.3.1996 when 7 more LDCs were promoted to the post of UDCs but the applicant was not promoted. It is on the basis of these facts applicant had filed the Civil Suit for declaration of mandatory injunction.
2. The defendant has filed written statement, in which it has been categorically stated that the applicant was not appointed as LDC but appointed in the ex-cadre department as LDC-cum-cashier. Thus, according to the respondent applicant has no lien in the cadre of LDC and had lost his lien in the LDC cadre by virtue of accepting the appointment as LDC-cum-Casher. It is further stated that promotion of applicant was possible on the post of UDC-cum-cashier and there was no vacancy available at that time so his promotion was not possible as UDC-cum-cashier. The respondent has further stated that the defendant is trying to intermingle the issue, as LDC-cum-cashier and LDC are two different cadres.
3. The applicant has filed replication, thereby reiterating the submissions made in the Suit. The applicant has filed affidavit by way of evidence as also he was examined as PW-1 in the Trial Court and his statement was recorded. Since on behalf of the defendant one Shri M.K. Bhardwaj, Administrative Officer appeared as DW-I, examination-in-chief and part of cross-examination of DWs was recorded and for further cross-examination, matter was adjourned from time to time and ultimately the matter was transferred to this Tribunal.
4. We have heard the learned counsel of the parties and gone through the material placed on record. From the facts, as stated above, it is clear that the applicant was initially appointed as peon and he was promoted as cashier purely on ad hoc basis vide order dated 12.12.1983 (Exhibit PW-1/2, page 69 of the paper-book). At this stage, it will be useful to quote this order, which thus reads:
Shri Daryao Singh Peon, School Medical Scheme, Jawaharlal Nehru Marg, is promoted as Cashier on purely ad-hoc basis in the pay scale of Rs.260-400 plus usual allowances and is posted in Treasury (HQ) against vacant post of LDC-Cashier.
This appointment is subject to following conditions:-
1. That this is purely a stop gap arrangement and Shri Daryao Singh will not have any claim over the post.
2. This arrangement can be terminated at any time without any notice to Shri Daryao Singh.
3. These orders are also subject to the decision to be taken on appointment of Class IV employees as Cashiers.
These orders are issued with the prior approval of D.C. (C).
5. As can be seen from the aforesaid order the applicant was promoted as cashier on ad hoc basis against the post of LDC-Cashier. Further, as can be seen from para-3, this order was made subject to the decision to be taken on the appointment of class IV employees as casher. This order was followed by another order dated 5.12.1988, Exhibit PW-1/1, which thus reads:
With the approval of Dy. Commissioner (A), Shri Daryao Singh, LDC-Cashier is given promotion to the post of LDC-Cashier on ad hoc basis w.e.f. 15-2-79, i.e. the date when his juniors were promoted, on the terms and conditions as contained in office order No.F.5/7/83-CES(C)/332 dated 12-12-83, restricting financial benefits under FR-17.
6. Thus, from the reading of these orders it is clear that the applicant was given promotion to the post of LDC-Cashier on ad hoc basis w.e.f. 15.2.1979 on the terms and conditions mentioned in the order dated 12.12.1983. Since the applicant was granted promotion during the pendency of the Suit the suit was decreed in favour of applicant and against the defendant vide judgment dated 16.11.1994 thereby declaring that the plaintiff/applicant shall be entitled for his difference of salary from the post of peon to the post of Jr. Clerk/Jr. Cashier w.e.f. 15.2.1979 to 13.12.1983 with further direction that the defendant shall work out the difference in the pay-scales and pay the difference thereof to the plaintiff within three months.
7. Thus, from the reading of the documents at Exhibit PW-1/1 and PW-1/2 and the declaration given by the Trial Court, it is evident that the applicant was granted promotion to the post of cashier-cum-LDC and not as LDC. Thus, the contention of the applicant that he was granted promotion to the post of LDC cannot be accepted. Even the applicant in his subsequent representation, which has been placed on record, has shown his designation as LDC/Cashier (Accounts). The respondents have categorically stated that the applicant was appointed as LDC-Cashier in the ex-cadre department, which appointment he had accepted. As such, he can be promoted to the post of UDC-cashier. It is further stated that there was no vacancy available at the relevant time. As such, the applicant could not be promoted. It may be stated that the applicant has retired on superannuation on 31.12.1997 and the grievance of the applicant raised for the period w.e.f. 10.1.1996 to 31.12.1997 when his so called junior were promoted pursuant to the final seniority list issued vide circular dated 27.03.1992. It may be stated that so called juniors were promoted pursuant to the final seniority list dated 27.03.1992, Exhibit PW-1/7. As can be seen from the circular that this seniority list was made final after inviting objections from the concerned officials to the provisional seniority list of LDCs appointed in the year 1979 and onwards, as circulated vide letter dated 2.2.1990. Admittedly, in the final seniority list name of the applicant did not figure. It is this seniority list which formed basis for granting promotion to the posts of UDC in terms of the order dated 10.1.1996. Admittedly, applicant has not made any grievance regarding this seniority list at any stage till his superannuation on 31.12.1997. Thus, we are of the view that the applicant has not made out any case for the grant of relief, inasmuch as the promotion was granted only to those persons who belong to the cadre of LDC. Applicant was promoted against the post of cashier-cum-LDC. It has come in the cross-examination of PW-1 that written test is compulsory for promotion to the post of LDC from class-IV employees. Admittedly, applicant has not qualified the written examination.
8. Thus, in view of what has been stated above, we are of the view that applicant has failed to prove his case that he was appointed against the post of LDC and thus entitled to promotion to the post of UDC w.e.f. 10.01.1996, when his juniors were so promoted. Accordingly, TA is found bereft of merit, which is accordingly dismissed, with no order as to costs.
(Manjulika Gautam) (M.L. Chauhan) Member (A) Member (J) San.