Central Administrative Tribunal - Delhi
Shri N.C.Joshi vs The Chairperson on 21 December, 2012
Central Administrative Tribunal Principal Bench New Delhi O.A.No.6/2012 Order reserved on 24.07.2012 Order pronounced on 21.12.2012 Honble Shri G. George Paracken, Member (J) Honble Shri Sudhir Kumar, Member (A) Shri N.C.Joshi F-5 Golf Link Sadan NDMC Flats New Delhi 110 003. Applicant (By Advocate: Shri S.K.Bhattacharya) Versus The Chairperson New Delhi Municipal Council Palika Kendra Parliament Street New Delhi 110 001. The Secretary New Delhi Municipal Council Palika Kendra Parliament Street New Delhi 110 001. The Director (Education) New Delhi Municipal Council Palika Kendra Parliament Street New Delhi 110 001. Respondents (By Advocate: Ms. Ritika Chawla for Shri Arun Bhardwaj) O R D E R By Sudhir Kumar, Member (A):
The applicant of this OA is aggrieved by the respondents having rejected his numerous representations for consideration of his name for promotion to the post of Vice Principal/District Education Officer stating through the impugned order dated 08.06.2011 that his request cannot be acceded to as he has not completed the required qualifying service in the capacity of the post of Post Graduate Teacher, and that his name will be considered only on completion of the required qualifying service as PGT, and his position in the seniority list.
2. The grounds taken by the applicant are that such action of the respondents is illegal, and violative of his fundamental rights under Articles 14 and 16 of the Constitution of India, and he has prayed for the following relief(s), including the interim relief:
8. Relief(s) sought:
Declare that the action of the respondent in not considering the name of the petitioner in the panel of candidates for selection to the post of vice principal is wholly illegal and violative of article 16 of the Constitution of India.
Issue a writ of mandamus directing the authorities to consider the case of the petitioner for selection to the post of vice principal Issue a writ of certiorari quashing the letter dated 8.06.2011 as being illegal null and void.
Issue rule nisi commanding the respondents as to why the writ as prayed for should not be granted.
Pass any such or further orders as this Honble Court may deem fit and necessary under the facts and circumstances of this case.
9. Interim order, if any prayed for.:
Pending disposal of the application the petitioner most respectfully prays that this Honble Court may graciously be pleased to;
Grant stay of all proceedings relating to appointment of the Vice principal till the pendency of the proceedings before this Honble Tribunal.
Pass such further or other orders as may be deemed fit and proper in the facts and circumstances of the case.
3. The interim relief was never granted in the case before the case came to be finally heard on merits, and reserved for orders.
4. The applicant was appointed as a Trained Graduate Teacher (TGT, in short) in the New Delhi Municipal Corporation, Department of Education, Government of NCT of Delhi, in the year 1988. In the year 1997, applications were invited to fill up the headquarters level post of Assistant Education Officer (Midday Meals Scheme) [in short AEO (MMS)]. This being a headquarters level post, the retirement age in the case of the post was 58 years, which was lesser than that in respect of the teaching posts under the Directorate of Education with retirement age of 60 years, and as is apparent from the file notings dated 20.11.1997 onwards, filed by the respondents along with the counter reply, the Director of Education had stated that TGTs may perhaps not like to join the post of AEO (MMS) on absorption basis, on account of the lower retirement age. It was, therefore, suggested in the file notings that the post of AEO (MMS) may be made as a tenure post, for a tenure period of three years, which tenure can be extended at the discretion of the Chairman, NDMC, but that even the extended tenure will expire at the age of 57 years, in any case, so that the incumbent concerned may then come back in the teaching cadre, and avail the benefit of higher retirement of age of 60 years in the teaching field. This proposal was approved by both the Secretary, NDMC, and Chairman, NDMC through their orders dated 28.11.1997 and 10.12.1997 respectively.
5. Thereafter, applications were invited for the single tenure post of AEO(MMS) as per the draft recruitment rules prepared for that post, by way of promotion from amongst TGTs having 5 years regular service in the grade, on the basis of seniority cum option. As is apparent from the minutes of the DPC held on 08.06.2001 in the chambers of Secretary, NDMC, to select the candidate for the post of AEO(MMS), out of the 7 candidates who had applied for the tenure post for a period of 3 years, only 2 were found eligible, and after examining the ACRs and service records of the 2 TGTs concerned, the DPC recommended the name of the applicant to be selected as AEO (MMS) which post he joined for a period of 3 years tenure initially.
6. However, on 18.07.2001, in pursuance of order dated 17.07.2001(Annexure P/4), the applicant was allowed the option for fixation of his pay under FR 22(I)(a)(i), as the post of AEO was higher than the post of Science Teacher (TGT) which he was occupying earlier. Though it was mentioned in the order dated 17.07.2001 that the applicant will be on probation for a period of one year, he not only finished his three years tenure in full, but actually continued to serve as AEO (MMS) for nearly 8 years till 16.11.2009, without any orders of confirmation on completion of period of probation ever being issued.
7. The applicant has submitted that after 5 years in the post as AEO, he had become eligible for promotion to the post of Vice Principal/DEO, for which the recruitment rules prescribed the requirements as below:
6. Educational & other qualifications required ESSENTIAL Masters Degree from a recognized University/Institution with degree in Teaching from recognized University/Institution with 5 years regular service in the feeder cadres mentioned in Ch1 no,10. However the qualification of degree or Diploma in teaching is relaxable in cases of those promoted or appointed on the feeder cadre having no such degree. 9. Method of rectt. whether by direct rectt. or by promotion/or by deputation/transfer & percentage of the vacancies to be filled by various method. By promotion
10. In case of rectt. by Promotion/deputation/transfer grades from which promotion in the grades from which promotion in the grade deputation to be made. From amongst the following categories as per inter se seniority in their cadre
1. A.E.O. ) with 5 years
2.Post ) regular Graduate )service in the Teachers ) respective cadre
3. H.Ms ) Middle ) Schools )
8. However, while the respondents circulated the seniority lists of PGTs, like the one produced by the applicant at Annexure P/6 dated 26.05.2006, and Annexure P/7 dated 14.01.2009, they did not circulate any such seniority list of AEOs, even while the applicant continued to function as AEO against the single post in that Cadre. Thereafter, it was only through Annexure P/8 dated 16.11.2009, the necessary orders promoting the applicant as PGT/Lecturer (Maths) were issued, substantively promoting him to the pay scale of Rs.6500-10500, which pay scale he was already enjoying from 18.07.2001 as AEO (MMS).
9. The applicant has decried the actions of the respondents in not having placed him on the seniority list of AEOs as he was sole incumbent in that cadre, and had to be ranked as No.1 in the Cadre. He has also denounced the actions of the respondents in having promoted, in the meanwhile, 5 persons to the posts of Vice Principals in the year 2007, vide Annexure P/9 dated 05.09.2007. The applicant represented against such perceived discrimination through his representation dated 22.07.2008 addressed to Director of Education, NDMC, vide Annexure P/10 (Colly.), praying that his services as AEO may be treated at par with Head of the Middle School Lecturer, and thus his candidature may be considered for the departmental promotion for the post of Vice Principal/DEO. Through the same Annexure A/10 (Colly.) representation dated 12.05.2011, the applicant re-emphasized that his seniority has to be considered from the date of his promotion as AEO (MMS) w.e.f. 19.07.2001 for the purpose of promotion to the posts of Vice Principal/DEO, but the respondents did not oblige, and have ultimately issued the impugned reply dated 08.06.2011.
10. It is submitted by the applicant that in the seniority list of Lecturer/PGTs circulated by the respondents through Annexure P/11 dated 06.07.2011, the applicant has been shown to have been appointed in the cadre of Lecturer/PGT w.e.f. 18.11.2009, and placed at Sl. No.34, disregarding his services as AEO (MMS). Therefore, he has submitted that the action of the respondents is bad in law in not having considered his service against the post of AEO (MMS), as it was one of the feeder cadres for the post of Vice Principal, and not considering his name in the panel of selection to the posts of Vice Principals is wrong, illegal, arbitrary, and in violation of his rights under Articles 14 and 16 of the Constitution of India, and also in violation of statutory Recruitment Rules, and has submitted that denial of the post of Vice Principal to him till date is per se illegal and discriminatory, and violative of his rights under Article 14 of the Constitution of India, and that the respondents have failed to take into account that his name in the seniority list of PGTs should have ranked higher than that of his other colleagues, as his services as AEO have not been taken into consideration, and, as a result, inter se seniority determined between the various categories have not been taken into account, rendering the entire process of selection of Vice Principals as arbitrary, and devoid of reasonings. Hence, he has sought reliefs as prayed in the OA, as produced above.
11. The respondents filed their reply on 23.02.2012. They first took the preliminary objection of limitation, and stated that the applicant cannot be aggrieved of his not having been promoted as Vice Principal, since he was promoted as PGT only on 16.11.2009. If the applicant had felt that he is eligible to be promoted as Vice Principal and not PGT, he should have approached this Tribunal at that stage only, and, therefore, on account of delay of more than 2 years till the date of his filing of the OA on 23.12.2011, the OA is liable to be rejected on this count alone.
12. It was further submitted that since in 2009 the applicant had accepted his promotion as PGT without any protest, therefore, he is now estopped from laying a claim for promotion to the post of Vice Principal. It is further submitted that it had been clearly stipulated in the Circular dated 23.01.1998, in response to which the applicant had applied, that the post of AEO (MMS) is a tenure post, for a period of three years, and as it was a single post only, it was not a substantive post, and it was only administrative in nature, which does not involve any teaching duties. Further, they submitted that it was clear that when for the post of AEO (MMS) the method of recruitment was selection-cum-option, which is similar to deputation, the incumbent had maintained a lien in his parent cadre, as, throughout his period of working as AEO (MMS) for 8 years, his substantive post has remained as TGT, and at any point of time he could have given an option to return back to the parent cadre of TGT.
13. It was submitted that the applicant was duly promoted as PGT, in normal course only, on 16.11.2009, and that promotion order was even accepted by the applicant, without any challenge in any Court of law. It was further explained that while the minimum qualifying service required for appointment to the post of Vice Principal/DEO was 5 years in the post of AEO or PGT, since there was a contradiction in the Recruitment Rules of Vice Principal, the Recruitment Rules have since been revised vide NDMC Resolution dated 23.12.2011, and the post of AEO, being only a tenure post, now does not form the feeder cadre for promotions to the posts of Vice Principal/DEO. It was submitted that the applicant has wrongly relied upon the redundant Recruitment Rules for the post of Vice Principal, as they stood prior to their revision. It was submitted that the applicant has mistakenly claimed his appointment as AEO, as having been against a regular post, while it was only made for a tenure period of 3 years, which came to be continued for a longer period, and throughout this period his substantive post was that of TGT, and not AEO, and the petitioner never objected to his placement in the seniority list of TGTs throughout these years of his deputation as AEO. In support of this contention, the respondents had filed the inter-se final seniority list of TGTs by way of Annexure VI, in which the name of the applicant appeared at Sl. No.38, which had not been challenged by the applicant at the time of issuance of the said seniority list.
14. It was also submitted that since AEO (MMS) was a single tenure post, and nobody, including the applicant, had been substantively appointed as AEO (MMS), there was no need for the respondents to issue a separate seniority list of AEOs. It was also submitted that the applicant had never objected at the relevant point of time about non publishing of a separate seniority list for AEOs, all throughout the period of 8 years of his tenure as AEO (MMS), when he was holding the substantive post of TGT, and his name was reflected at the appropriate position in the seniority list of TGTs.
15. The respondents also justified the promotions given by them to various persons as TGT/Headmaster (Middle) in the year 2007, and submitted that the applicant had unnecessarily raised this issue after nearly 5 or 6 years, since he had never worked as PGT/HM (Middle) prior to the year 2007, and even if he had felt aggrieved by the said promotions during the year 2007 to the posts of Vice Principals, he should have challenged such an order at that point of time, and he cannot now be allowed to oppose the said selection list, without making the concerned persons as party to the present proceedings. It was also submitted that all persons who had been promoted as Vice Principal/DEO were senior to the applicant, and, therefore, the claim of the applicant is not fair and justified. They had also justified the impugned reply issued to the applicant since he had not yet completed 5 years regular service on the post of PGT, which is required for the purpose of promotion to the post of Vice Principal as per Recruitment Rules, and no person junior to the applicant has been considered for the post of Vice Principal. It was, therefore, prayed that the applicant cannot be allowed to combine the seniority of a substantive post with his experience of a tenure post for the purpose of seeking promotion, and, therefore, the OA deserves to be rejected.
16. The applicant field a rejoinder on 16.04.2012, more or less reiterating his contentions as raised in his OA. Denying the contentions of the respondents that he was not properly selected and promoted in a substantive capacity as AEO, he submitted that the records filed by the respondents themselves show that the DPC meeting was held, wherein the applicant was selected as AEO out of seven persons, and, therefore, it was submitted that since it was a promotion post, any contentions raised by the respondents now to the contrary are incorrect.
17. It was also submitted that the contention of the respondents that AEO is a tenure post is misconceived, when the rules itself clearly show that he could have held the post till reaching the age of 57 years, and when once the residency in a tenure post is extended till the age of 57 years, it loses the character of a tenure post, and that the question of his coming back to the parent post would be only for the purposes of extension of age of retirement. He also submitted that the Office Order dated 17.07.2001 issued to him did not state that his promotion as AEO was against a tenure post, and he was also but on probation for a period of one year, after having been placed in the list of panel as AEO. It was also submitted that the amendments to the Recruitment Rules for the posts of Vice Principal/DEO are only proposed Recruitment Rules, and no resolution of NDMC has been annexed, and, in any case, these rules cannot be given retrospective effect. He, therefore, prayed that his eligibility has to be seen from the date he became eligible, as the amended Recruitment Rules cannot be applied respectively.
18. Heard. The case was argued vehemently by both the parties. The learned counsel for the applicant relied heavily upon the Judgement of the Honble Apex Court in Y.V.Rangaiah & Others v. J.Srinivasa Rao & Others, AIR 1983 SC 852, to submit that any vacancy which had occurred prior to the amended Recruitment Rules, would be governed by the old rules, and not by the new rules or amended rules.
19. On the other hand, the learned counsel for the respondents (who has submitted a written brief also) argued that while inviting the applications from the departmental candidates for the post of AEO (MMS) on 30.10.2000, it had been made quite clear that the post of AEO was a tenure post for a period of three years, and that the incumbent can go back to his parent post after expiry of three years, or upon reaching the age of 57 years, whichever is earlier. It was also reiterated that it has all through been in the applicants knowledge that he was retaining his lien in the parent cadre post of TGT, and had the applicant not been promoted to the post of PGT on 16.11.2009, even in that case, he would have been reverted to the parent cadre of TGT on attaining the age of 57 years. It was further argued that it is settled law that a tenure post cannot be a feeder cadre for any promotional post, and it was only because of this reason that the applicant had, with all his satisfaction, accepted his promotion to the post of PGT on 16.11.2009, for which post the feeder cadre is TGT only. It was, therefore, reiterated that the reply issued by the respondents is correct, and the applicants case can only be considered for the post of Vice Principal in his own turn, on the basis of his seniority in the feeder cadre of PGT w.e.f. 16.11.2009, and that no TGT junior to the applicant has so far been considered for promotion as Vice Principal. Accordingly, it was reiterated that the OA deserves to be dismissed.
20. We have given our anxious consideration to the facts of the case. It is quite clear that the applicant was fully in the knowledge that he is applying for the post of AEO(MMS) in the Headquarters for the administrative functions of supervising MMS Scheme, and that it was a tenure post. Since he was occupying the supervisory post having jurisdiction over the whole of the organization of NDMC, the applicant chose to continue to remain on such deputation against the tenure post of AEO (MMS). It was also not denied by the applicant either in his oral arguments, or through his rejoinder, that all through this period of 8 years, he was fully aware that even when he was serving as AEO (MMS) his seniority was being counted in his substantive capacity as TGT. The applicant has never challenged the inclusion of his name in the seniority list of TGTs in the whole period of 8 years when he was occupying the administrative post of AEO (MMS), and did not perform the teaching duties as TGT. Also, when his turn came in the regular course, he also availed of the promotion due to him as PGT, along with his counterparts, without any protest, and knowing fully well that the only feeder cadre to the posts of PGTs is the cadre of TGTs, and if he had denied his seniority being counted in the TGTs, he would not have been held to be eligible for promotion as PGT.
21. Having pocketed his promotion, as due, to the post of PGT, without any protest, the applicant cannot now be allowed to turn around and state that all through the period of 8 years, when he was performing the administrative functions of AEO (MMS), he did not enjoy his lien and substantive appointment against the post of TGTs, which made him eligible for the promotion granted to him on 16.11.2009 to the post of PGT. We also find merit in the contention of the respondents that the seniority list of AEOs was never issued in all this period of 8 years of the applicant occupying the post of AEO on tenure basis, since he was never substantively appointed to the post of AEO, and there being no person substantively appointed in the cadre of AEO, no seniority list was required to be issued by the respondents in respect of that cadre, without such a substantive appointee. In case the applicant was, all through this period of eight years, under the impression that his appointment as AEO (MMS) was in substantive capacity, as he has now pleaded through this OA, he should have challenged the non-issuance of the seniority list of AEOs at the appropriate time, at any time during all the eight years when he was occupying the post of AEO (MMS), which he did not do.
22. Even if we apply the ratio in the case of Y.V.Rangaiah (supra), we can only hold that AEOs holding substantive appointment, and seniority of 5 years as such substantive appointee, have to be held to be eligible for appointment as Vice Principal/DEO, along with PGTs with five years of seniority. When there was no substantively appointed AEO, the eligibility subset of AEOs with substantive appointment of 5 years seniority was a nullity. Just because the applicant was occupying the post of AEO as a tenure post, and not in a substantive capacity, he cannot be allowed to plead for his 8 years of tenure posting as AEO to be counted as 5 years substantive appointment as AEO, and be counted among those who could have formed the part of the set to be in the zone of consideration for appointment as Vice Principal/DEO. Therefore, with or without amendment of the Recruitment Rules for the posts of Vice Principal/DEO, the applicant before us cannot be allowed to claim the eligibility for appointment to the posts of Vice Principal/DEO, when he was not occupying the post of AEO in substantive capacity all these years. Therefore, the benefit of the Honble Apex Court judgment in Y.V.Rangaiah(supra) cannot be made available to the applicant, and the OA is, therefore, dismissed. But there shall be no order as to costs.
(Sudhir Kumar) (G. George Paracken) Member (A) Member (J) /nsnrsk/