Central Administrative Tribunal - Delhi
Shri Ravi Kant Bhatia vs New Delhi Municipal Council on 20 April, 2012
Central Administrative Tribunal Principal Bench, New Delhi T.A.No.1078/2009 (WP (C) Nos.18471-73/2004) Friday, this the 20th day of April, 2012 Honble Shri M.L. Chauhan, Member (J) Honble Dr. Veena Chhotray, Member (A) 1. Shri Ravi Kant Bhatia s/o Shri K L Bhatia r/o RA-36, Inderpuri, New Delhi-12 2. Shri Sanjeev Kumar Sharma s/o Shri R P Sharma r/o 249, Deepali Pitampura, Delhi-34 3. Shri Prem Pal Sharma s/o Shri Vishnu Dutt Sharma r/o RZ 20/91, Gali No.2 East Sagarpur, New Delhi-46 .. Applicants (By Advocates: Shri Pramod Gupta and Shri Udit Gupta along with Applicants) Versus New Delhi Municipal Council Through its Chairperson Palika Kendra Sansad Marg, New Delhi ..Respondent (By Advocate: Smt. Harvinder Oberoi) O R D E R (ORAL)
Shri M. L. Chauhan:
The applicants, three in number, have originally filed WP (C) Nos.18471, 18472 and 18473 of 2004 before the High Court of Delhi, thereby praying for issuance of the writ of mandamus directing the respondent-New Delhi Municipal Council (NDMC) to forthwith promote them to the post of Assistant Engineer (Civil) in the quota of degree holders in terms of the recruitment rules with effect from the year 2000, with consequential benefits. These aforementioned writ petitions were subsequently transferred to this Tribunal when the jurisdiction in respect of cases pertaining to NDMC was conferred upon this Tribunal and was registered as TA No.1078/2009.
2. Before adverting to the main issue involved in this case, relevant facts may be noticed. The applicants were initially appointed as Junior Engineer (C), i.e., applicant on 15.7.1981 and applicant Nos. 2 and 3 on 28.6.1991. They were further entitled for promotion to the post of Assistant Engineer (C). It may be stated here that prior to amendment carried out to the recruitment rules for the post of Assistant Engineer (C) by the NDMC vide resolution No.44 dated 17.8.1990, the recruitment to the post of Assistant Engineer (C) was to be made from two sources, namely, (i) 25% from graduate engineer by way of direct recruitment and (ii) 75% to be filled in by way of promotion from amongst Junior Engineers possessing degree/diploma. However, in terms of the aforesaid amendment carried out in the recruitment rules in the year 1990, 75% promotion quota meant for departmental Junior Engineers belonging to the cadre of degree and diploma holders was further bifurcated and same was meant to be filled in 50% diploma holder and 25% from graduate engineers. Since prior to the amendment carried to the recruitment rules for the post of Assistant Engineer 75% promotion quota was available to both for degree and diploma holders, promotion was being made in terms of the common seniority list circulated on 10.9.1986. However, since in the year 1990 separate promotion quota was earmarked for diploma and degree holder Junior Engineers and in order to give effect to the amended recruitment rules, seniority list of Junior Engineer was revised by the respondent with reference to the date of acquiring of degree, i.e., persons who acquired degree earliest was placed serial No.1 and those acquired degree subsequently were listed after him and promotions were made in the said degree holder quota on the basis of the said list so prepared. It may also be stated here that the validity of the said seniority list dated 17.8.1990 was challenged by certain degree holders by filing CWP No.1570/1992, thereby contending that their seniority in the original list has been disturbed and the persons shown junior to them in the original seniority list dated 10.9.1986 have stolen a march over them as per 1990 seniority list merely because those persons had acquired degree earlier. However, the said writ petition was allowed by the single Judge of the High Court vide order dated 12.11.1997 and the seniority list dated 17.8.1990 was set aside. It was further directed that the promotion of the petitioner in the said writ petition would be made as per rules keeping in view the seniority as on 31.7.1986. It may be pertinent to submit here that the judgment rendered by the single Judge of the High Court was challenged by the degree holder aggrieved by the said order by filing LPA No.280/1997. The grievance raised by the applicants in this TA is that the respondent-NDMC have promoted the departmental holder Junior Engineer (C) to the post of Assistant Engineer (C) based upon the existing/amended recruitment rules vide order dated 30.8.2004, whereas applicant No.1, who was granted promotion to the post of Assistant Engineer (C) on ad hoc basis with immediate effect vide order dated 29.7.2002, was declined the said promotion on the next day by keeping the said order in abeyance. It is further averred that the said promotion order has been kept in abeyance on account of the pendency of LPA No.280/1997, whereas, according to the applicants, there was no such order passed in the LPA not to make promotion or promotion made be kept in abeyance. The applicants herein have also placed on record the representation dated 8.9.2004 and another representation as Annexure P-17 (pages 86-A and 86-B of the paper book) whereby the grievance has been made by the applicants that promotion to graduate Junior Engineer against 12 vacant posts of Assistant Engineer (C) be made as per existing recruitment rules and seniority list updated in the year 2002 on the same parity, as has been granted to the Junior Engineer diploma holder based upon the seniority list prepared in the year 1990, as subsequently updated in the year 2002.
3. The respondent-NDMC have filed reply. Facts, as stated above, have not been disputed. It has been further stated that since the controversy involved in this case is an issue raised in LPA No.280/1997, this TA may also be decided after the decision in the said case. In view of this specific stand taken by the respondent in the reply affidavit, this Tribunal vide order dated 18.11.2010 adjourned the case sine die awaiting the decision in LPA No.280/1997 filed before the High Court. However, learned counsel for applicants, by way of filing MA No.405/2012, have placed on record the copy of the judgment dated 19.10.2011 rendered by the Division Bench of the High Court in the said LPA. Along with MA, a prayer has also been made that the present TA be revived/restored to its original number. This Tribunal vide order dated 14.3.2012 allowed the said MA and thereafter the matter was listed for hearing.
4. We have heard the learned counsel for the parties and perused the material placed on record. Since the matter in controversy stands settled by the judgment rendered by the Division Bench of the High Court in the aforementioned LPA and the judgment of the Single Judge of the High Court has been set aside whereby promotion to the post of Assistant Engineer (C) was to be made in terms of the seniority list in the cadre of Junior Engineer as issued on 31.7.1986 and not on the basis of the seniority list dated 17.8.1990 prepared in terms of the amended recruitment rules, the action of the respondent to make promotion to the post of Assistant Engineer (C) based upon the seniority list prepared in the year 1990 and subsequently updated in the year 2002 cannot be found fault with. At this stage, it will be useful to quote paragraphs 35 to 38 of the judgment dated 19.10.2011 in LPA No.280/1997, which thus read:-
35. No doubt the earlier norms being adopted as per an affidavit filed by respondent No.1 was of seniority having precedence but then that was not when this rule providing for accelerated possibility of promotion to the diploma holders on acquiring a degree was in question. The promotion rules were amended in pursuance to the representations received from the diploma holders who wanted to shift the stream by acquiring a degree and thus a quota was carved out for them. If they want to get promotion through this quota then their seniority in his quota would alone be the criteria, the date of acquiring the degree and not the period rendered in service as a diploma holder. This is why some period of service has to be post acquiring the degree.
36. We are, thus, of the considered view that the impugned judgement of the learned single Judge cannot be sustained in view of the aforesaid legal position and more specifically in view of the pronouncements in Shailendra Dania & Ors. case (supra).
37. The impugned order is set aside and the modified seniority which has now been made applicable in terms whereof the appellants are senior to respondents 2 & 3 are upheld, the date of acquiring the degree being the material date with requisite period of service post acquiring the degree.
38. The appeal is accordingly allowed leaving the parties to bear their own costs.
5. Accordingly, the applicants herein have made out a case for grant of their promotion in terms of the seniority list dated 17.8.1990 prepared pursuant to the amended recruitment rules and in the light of the findings recorded by the Division Bench of the High Court in the aforesaid LPA, relevant portion of which has been reproduced hereinabove. The respondent-NDMC are, thus, directed to consider the case of the applicants herein for promotion to the post of Assistant Engineer (C).
6. Learned counsel for applicants on instructions from his clients, submits that the applicants have been granted promotion on ad hoc basis as Assistant Engineer (C) w.e.f. 26.4.2005 along with other persons and these ad hoc promotions have been made subject to the final outcome of LPA No.280/1997, WP Nos.18471-73/2004 in the High Court and Civil Appeal Nos.2219 & 2222/2002 in the Apex Court and argued that his clients will be satisfied in case the ad hoc promotions so granted vide Order No.SC (CE-II)/2508/SAG-I dated 26.4.2005 are treated as regular promotions for all intents and purposes and the applicants are not pressing their claim for promotion from back date, as prayed for in the TA. We see substance in the submissions made by the learned counsel for applicants. From the perusal of the office order dated 26.4.2005, which has been placed on record, it is evident that ad hoc promotions were granted to the applicants and other persons mentioned in the said order, as the matter was sub judice, although such promotions were made by the competent authority on the recommendations of the DPC. Since the controversy in the matter has been put at rest by the judgment rendered by the Division Bench of the High Court in LPA No.280/1997 thereby setting aside the judgment of the single Judge, we see no impediment as to why the services of the applicants cannot be treated as regular w.e.f. 26.4.2005.
7. The respondent-NDMC are accordingly directed to look into this aspect and in case the respondent-NDMC regularize the services of the applicants as Assistant Engineer (C) w.e.f. 26.4.2005 as regular promotion for all intents and purpose, the respondent shall pass an appropriate order qua this aspect. In that eventuality, the directions given by us in the earlier part of the judgment for granting relief to the applicants from due date shall not be given effect to.
8. The TA shall stand disposed of accordingly. No costs.
( Dr. Veena Chhotray ) ( M. L. Chauhan ) Member (A) Member (J) /sunil/