Central Administrative Tribunal - Delhi
Shri Ravi Kant Bhatia vs New Delhi Municipal Council on 15 May, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA 4043/2013
MA 3075/2013
MA 3917/2014
MA 503/2015
MA 1817/2014
New Delhi this the 15th day of May, 2015
Honble Mr. V. Ajay Kumar, Member (J)
Honble Mr. P.K. Basu, Member (A)
1. Shri Ravi Kant Bhatia
S/o Shri K.L. Bhatia
R/o RA 36, Inderpuri
New Delhi-110012
2. Shri Rajesh Kumar Tanwar
S/o Shri Hari Singh Tanwar
R/o B-193, Naraina Vihar
New Delhi-110028
3. Shri Sanjeev Kumar Sharma
R/o Shri R.R. Sharma
R/o 249, Deepali, Pitampura,
Delhi-110034 Applicants
(Through Shri Pramod Gupta with Ms.Yogyata Verma and Ms. Priyanka Ghosh, Advocates)
Versus
1. New Delhi Municipal Council
Through its Chairperson,
Palika Kendra, Sansad Marg
New Delhi-110001
2. Mohar Singh Meena
Aged 47 years
s/o late Shri S.L. Meena
Working as Assistant Engineer (Civil)
NDMC, New Delhi
3. C.L. Meena
Aged 47 years
s/o late Shri Bishan Lal Meena
Working as Assistant Engineer (Civil)
NDMC, New Delhi
4. Battu Lal Meena
Aged 51 years
S/o S.R. Meena,
Working as Assistant Engineer (Civil)
NDMC, New Delhi
5. L.P. Toppo
Aged 46 years
S/o Late Jucius Toppo
Working as Assistant Engineer (Civil)
NDMC, New Delhi
6. Harkesh Meena
Aged 39 years
S/o Late S.L. Meena,
Working as Assistant Engineer (Civil)
NDMC, New Delhi Respondents
(Through Shri Rajeev Kumar for respondent 1
Mrs. Harvinder Oberoi for respondents 2 to 6)
ORDER
Mr. P.K. Basu, Member (A) The applicants are degree holder Junior Engineer (JE) (Civil) with the respondent New Delhi Municipal Council (NDMC). The next higher post to which the applicants are entitled to be promoted is of Assistant Engineer (AE) (Civil). According to the Recruitment Rules (RRs), 25% posts of AE (Civil) are to be filled up by direct recruitment and 75% by departmental promotion i.e. by promotion from amongst JE (Civil). Of the 75% promotion quota, 25% is earmarked for degree holder JEs (as per amendment in RRs in 1990) and balance 50% for diploma holder JEs. Diploma holder JEs require eight years of service in the grade to become eligible for promotion to the post of AE (C) while degree holder JEs require four years service in the grade to become AE. JEs who acquire degree during the course of service need to have only three years service after passing of the degree or five years service whichever is more beneficial to the officer. On 17.08.1990, a separate seniority list was drawn up for filling up the posts only of degree holders within the said degree holder quota. In the said list, the JEs are listed with reference to the date of acquiring degree i.e. the person who acquired the degree earliest was placed at serial number 1 and those acquiring degree subsequently were placed after him. There was a series of litigation. The Honble High Court of Delhi in W.P. (C) 18471-73/2004, Ravi Kant Bhatia & ors. Vs. N.D.M.C. directed as follows:
The petitioners have already been waiting for almost five years for their promotions and it would be a travesty of justice if it is delayed any further. As on date there are twelve vacancies to the post of Assistant Engineer (Civil), the Respondents are accordingly directed to promote the twelve senior-most eligible persons in the List dated 1.01.2002 and/ or the proposed List of 22.03.2005 since there is no change in either of them, on adhoc basis within fifteen days from today.
2. Out of 12 litigants in that Writ Petition, Shri Ravi Kant Bhatia and other two are applicants in this case. The respondents vide office order dated 26.04.2005 granted ad hoc promotion to those 12 JEs to the post of AE with effect from 26.04.2005 in which the present applicants namely Shri Ravi Kant Bhatia, Shri Rajesh Kumar Tanwar and Shri Sanjeev Kumar Sharma are at serial number 1, 8 and 10 respectively. However, it was made clear that these ad hoc promotions were subject to final outcome of LPA No.280/1997, W.P. No.18471-73/04 in the High Court of Delhi and Civil Appeal No.2219-2222/2002 in Supreme Court of India. The Writ Petition No. 18471-73/04 before the High Court of Delhi was later transferred to this Tribunal and registered as T.A.1078/2009. Vide order dated 20.04.2012, the said T.A. stood disposed off. It is pertinent to quote relevant paras of the judgment below:
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.
3. A DPC was held on 6.08.2013, and DPC desired that before regularization of the ad hoc promotions of AE (Civil), the vacancy position and working position may be brought on record of required representation of SC, ST, UR and rota quota system so that excess promotions can be adjusted in the right way. A DPC was again held on 3.09.2013 and considered the vacancy position of 31.12.2003, 31.12.2004, 31.12.2005, 31.12.2006, 31.12.2007, 31.12.2008, 31.12.2009, 31.12.2010, 31.12.2011, 31.12.2012 and 31.12.2013. The DPC found Shri Ravi Kant Bhatia eligible for departmental quota for vacancy as on 31.12.2009 and Shri Rajesh Kumar Tanwar and Shri Sanjeev Kumar Sharma for departmental quota as on 31.12.2011. They were promoted vide office order dated 12.09.2013 in which Shri Ravi Kant Bhatia is at serial number 15, Shri Rajesh Kumar Tanwar at serial number 40 and Shri Sanjeev Kumar Sharma at serial number 52. The applicants are aggrieved by this order and have prayed for the following reliefs:
(i) Direct the respondent to regularize the promotions of the applicants as AE (C) NDMC w.e.f. 26.04.2005 as has been directed in the judgment dated 20.04.2012 in TA No. 1078 of 2009 and grant them all the consequential benefits thereof, and to that extent set aside the impugned Order dated 12.09.2013; and
(ii) Initiate appropriate action against the responsible officers of the NDMC, who have failed to comply and flouted the judgment of this Tribunal dated 20.04.2012 in TA No.1078 of 2009.
4. The argument of the applicants is that in WP (C) 18471/2004, in its order dated 12.04.2005, the Honble High Court had directed that twelve vacancies in the post of AE be filled up by promotion of twelve senior most eligible persons on ad hoc basis within fifteen days. The respondents did so vide office order dated 26.04.2005 by promoting them from 26.04.2005. Thereafter, in TA 1078/2009, this Tribunal gave a direction in their favour to treat them as regular with effect from 26.04.2005. This was in the background that they had been given ad hoc promotion after following all due procedure and consideration by a DPC as observed by the Tribunal in para 6 of its order in the aforesaid TA. The ad hoc promotions were granted as the matter was sub judice and for that reason alone. Therefore, all what the respondents had to do was to confirm the ad hoc promotion given from 26.04.2005. Instead of that, the respondents clubbed all the vacancies arising in different years and held a fresh DPC on 3.09.2013 giving them promotion with effect from 3.09.2013, which is illegal as the respondents had not challenged the Tribunals order in TA 1078/2009, which attained finality.
5. The learned counsel for the applicants also referred to several file notings through which he tried to demonstrate that internally the department was of the view that their ad hoc promotion was to be confirmed but a decision was taken at a higher level to club all vacancies etc. However, it is settled law that we cannot go into file notings and, therefore, this has to be ignored. The applicants also tried to prove that the DPC held on 3.09.2013 was not as per rules and there were several deviations and errors in the matter of yearwise zone of consideration and calculation of vacancies. However, as pointed out by the respondents, the applicants in their prayer clause have not challenged the DPC proceedings and only sought implementation of the order of the Tribunal in TA 1078/2009 and to that extent set aside the impugned order dated 12.09.2013 as if they are given promotion from 26.04.2005.
6. In our view, the stand of the respondents is valid as indeed the prayer is only for consideration of implementation of the orders of this Tribunal in TA 1078/2009 and to that extent amending the impugned order. Since the DPC minutes have not been challenged, the learned counsel for the applicants cannot take up the issue at this stage. Moreover, several others would be affected who are not even parties before us. Therefore, the simple issue to be decided is whether the respondents were justified in holding a fresh DPC and not simply confirming the ad hoc promotions vide order dated 26.04.2005.
7. On this issue, the learned counsel for the applicants stated that since ad hoc promotions were held after holding a DPC on 26.04.2005, following due procedure, there was no need to hold a fresh DPC and only confirmation was required. In fact, copy of the Minutes of the DPC held on 26.04.2005 has been filed from which it would appear that the DPC considered the ACRs of twelve officers after examining their service records. On this, there seems to be no dispute.
8. The learned counsel for the applicants also cited the following judgments:
(i) Jagdish Prasad Vs. State of Rajasthan and others, (2011) 7 SCC 789, where the Honble Supreme Court observed as follows:
At the very outset we may refer to the relevant part of the Division Bench judgment dealing with the subject in question and issuing the directions which reads as under:
"There cannot be any dispute and as has been decided by the Apex Court that clubbing of vacancies could be made only for the purpose of direct recruitment. However, promotions have to be made on the basis of year wise determination of vacancies to the candidates eligible for the particular year who come in the zone of consideration for the particular year as also been referred above. In the present case, it appears that State Government had given a complete go-bye to the provisions of the relevant Rules and while clubbing the vacancies from 1983-84 fill 1993-94, the promotions have been made accordingly. The clubbing of vacancies for more than 10 years have not only created complications so far as reservation of the posts as per relevant roster are concerned, but entire procedure of zone of consideration for each year have been disturbed. Merely deletion of the condition of qualifying examination in the year 1992 will not justify the action of the State government in clubbing all the vacancies of more than 10 years and give promotions to persons making a new zone of consideration and reservation also accordingly. On the face of it the whole action of the State Government cannot be sustained in the eyes of law. More so when it is also not a case of one time promotion which also require a special notification and amendment in the Rules.
(ii) Shailendra Dania and others Vs. S.P. Dubey and others, (2007) 5 SCC 535. The Honble Supreme Court observed as follows in the cited case:
28. From the aforesaid, it is clear that the Court was considering the experience/qualifying service of eight years and twelve years amongst the diploma-holder Sub-Engineers and not vis-a-vis the degree-holder Sub-Engineers. The reduction of the qualifying service from twelve years to eight years simply accelerated the entitlement to promotion for the post of Assistant Engineer by Sub-Engineers from twelve years to eight years. The qualifying service which was required to be considered under the rule was that of diploma-holder Sub-Engineers. The qualifying service has no relation with the Degree of Engineering and it is said by the judgment in N. Suresh Nathan's case (supra) that the rule does not contemplate any equivalence of any period of service with the qualification of acquiring Degree of Graduation in Engineering. xxxx xxxx xxxx 37. The only question involved in these appeals and transferred cases can be stated thus : Whether a diploma-holder Junior Engineer, who obtains a degree while in service, becomes eligible for promotion to the post of Assistant Engineer on completion of three years of service after he obtained the Engineering Degree or on completion of three years of service prior to obtaining the Degree in Engineering.
xxxx xxxx xxxx 42it is clear to us that the classification was upheld between diploma-holder and graduate Engineers on the basis of the requirements of the promotional posts and in the interest of the efficiency of the service. While referring to experience required for promotion, the Court has specifically said that eligibility determination was made by a cumulative criterion of a certain educational qualification plus a particular quantum of service experience. Thus, as per the Court, the requirement for promotion is the educational qualification plus a particular quantum of service experience. The Court further observed that if the educational qualification by itself is the only criterion conferring eligibility for promotion, then the superimposition of further conditions such as a particular period of service, selectively, on the diploma-holders alone, to their disadvantage, might become discriminatory, but as it is the eligibility criteria it cannot be held as a discrimination. The Court has made distinction between the service rendered as diploma-holder and graduate Engineer and thus has not found any discrimination in different period of experience provided for promotion for degree-holder and diploma-holder. Degree and a diploma with different period of service is held to be a valid classification whereby a different period of service has been made eligibility criteria along with educational qualification for promotion to the higher post.
xxxx xxxx xxxx 43In the given case, can it be said that a diploma-holder who acquired a degree during the tenure of his service, has gained experience as an Engineer just because he has acquired a Degree in Engineering. That would amount to say that the experience gained by him in his service as a diploma-holder is qualitatively the same as that of the experience of a graduate Engineer. The rule specifically made difference of service rendered as a graduate Junior Engineer and a diploma-holder Junior Engineer. Degree-holder Engineer's experience cannot be substituted with diploma-holder's experience. The distinction between the experience of degree-holders and diploma-holders is maintained under the rules in further promotion to the post of Executive Engineer also, wherein there is no separate quota assigned to degree-holders or to diploma-holders and the promotion is to be made from the cadre of Assistant Engineers. The rules provide for different service experience for degree-holders and diploma-holders. Degree-holder Assistant Engineers having eight years of service experience would be eligible for promotion to the post of Executive Engineer, whereas diploma-holder Assistant Engineers would be required to have ten years' service experience on the post of Assistant Engineer to become eligible for promotion to the higher post. This indicates that the rule itself makes differentia in the qualifying service of eight years for degree-holders and 10 years' service experience for diploma-holders. The rule itself makes qualitative difference in the service rendered on the same post. It is a clear indication of qualitative difference of the service on the same post by a graduate Engineer and a diploma-holder Engineer. xxxx xxxx xxxx 44Educational qualification along with number of years of service was recognized as conferring eligibility for promotion in the respective quota fixed for graduates and diploma-holders. There is watertight compartment for graduate Junior Engineers and diploma-holder Junior Engineers. They are entitled for promotion in their respective quotas. Neither a diploma-holder Junior Engineer could claim promotion in the quota of degree-holders because he has completed three years of service nor can a degree-holder Junior Engineer make any claim for promotion quota fixed for diploma-holder Junior Engineers. Fixation of different quota for promotion from different channels of degree-holders and diploma-holders itself indicates that service required for promotion is an essential eligibility criterion along with degree or diploma, which is service rendered as a degree-holder in the present case. The particular years of service being the cumulative requirement with certain educational qualification providing for promotional avenue within the specified quota, cannot be anything but the service rendered as a degree-holder and not as a diploma-holder. The service experience as an eligibility criterion cannot be read to be any other thing because this quota is specifically made for the degree-holder Junior Engineers. xxxx xxxx xxxx
45. As a necessary corollary, we are of the view that the diploma holder Junior Engineers who have obtained a degree in Engineering during the tenure of service, would be required to complete three years' service on the post after having obtained a degree to become eligible for promotion to the higher post if they claim the promotion in the channel of degree-holder Junior Engineer, there being a quota fixed for graduate Junior Engineers and diploma-holder Junior Engineers for promotion to the post of Assistant Engineers.
46The writ petitions shall now be decided by the Division Bench of the High Court in accordance with law laid down herein. The writ petitions which were transferred to, and registered as Transferred Cases in, this Court, shall also be sent back to the High Court for their decision in accordance with law.
(iii) Union of India Vs. Dharam Pal and others, (2009) 4 SCC 170, where it was held as follows:
24. It is now a well-settled principle of law and in respect whereof there is absolutely no quarrel that in view of the decision of this Court in Direct Recruit Class-II Engineering Officers' Association vs. State of Maharashtra [(1990) 2 SCC 715] an employee appointed to a post according to rules would be entitled to get his seniority reckoned from the date of his appointment and not from the date of his confirmation.
9. Respondents state that the applicants had filed a representation against the recommendations of the DPC held on 3.09.2013 and this representation was disposed off vide letter dated 17.02.2014 addressed to Shri R.K.Tanwar and others informing that the department, prima facie, found no merit in their representation. It is stated that the applicants have not challenged this order and, therefore, their prayer is not sustainable.
10. Ms. Harvinder Oberoi appearing on behalf of private respondents 2 to 6 pointed out that the DPC of 26.04.2005 did not look at reservation or ratio between degree holders and diploma holders while making recommendations. In this regard, she drew our attention to the Minutes of the DPC held on 10.01.2007 for ad hoc promotion to the post of AE (Civil) and specifically to para 4, quoted below, which indicates that the DPC held on 26.04.2005 had failed to consider SC/ST representations while deciding the matter:
4. A DPC was held on 26.4.2005 under the directions of Honble High Court dated 12.4.2005 in case of Ravi Kant Bhatia & Ors. Vs. NDMC filed by degree holder JEs of the department. The directions of Honble Court are as under :-
As on date there are 12 vacancies to the post of Asstt. Engineer (Civil), the respondents are accordingly directed to provide the twelve senior most. In compliance to the orders of the Honble Court, the DPC promoted 12 senior most degree holder JEs to the post of AE (Civil). In the above DPC the representation of SCs & STs were not considered. The SCs & STs representation in this promotion was in short by 4 and 5 numbers respectively. However, immediately after this 2 STs were promoted by a DPC held on 29.12.2005.
The Roster Registers have been scrutinized by the Liaison Deptt. and currently there is a shortfall of 04 SC and 03 ST candidates Due to this promotion, degree holders JE were promoted in excess by 12 in numbers.
11. It was further argued that in its order in TA 1078/2009, the Tribunal had directed the respondents to consider the case of the applicants for promotion to the post of AE and final direction was to look into this aspect and in case the respondent-NDMC regularizes the services of the applicants as AE (Civil) with effect from 26.04.2005 as regular promotion for all intents and purposes, the respondents shall pass an appropriate order qua this aspect. Therefore, the respondents in the light of this judgment, took up the matter of promotion to the post of AE of the applicants in that case as well as others looking into SC/ST reservation as well as degree/diploma holders ratio. This would be apparent from the Minutes of the DPC held on 3.09.2013 in which the department has taken total sanctioned posts, direct quota, departmental quota, ratio of degree and diploma holders and then depending upon the shortfall/excess, promotions were made. On account of reservation for ST, the ST candidates came up in the list.
12. The learned counsel for respondents also relied on Shipping Corporation of India Ltd. Vs. Machado Brothers and others, (2004) 11 SCC 168. In para 21 of the judgment, the Honble Supreme Court held as follows:
21. In the instant case, the appellant contends that during the pendency of the first suit, certain subsequent events have taken place which has made the first suit infructuous and in law the said suit cannot be kept pending and continued solely for the purpose of continuing an interim order made in the said suit. The contention of the learned counsel was that the order of the Honble High Court dated 12.04.2005 in WP (C) 18471/2004 was an interlocutory order and once a final order has been passed in TA 1078/2009, its significance lapses.
13. Heard the learned counsel for the parties, gone through the pleadings available on record and perused the judgments cited.
14. The final order passed by the Tribunal in TA 1078/2009 is the basis of claim by the applicants as also the order of the Honble High Court dated 12.04.2005 and order dated 26.04.2005 of the respondents giving them ad hoc promotion.
15. We accept the contention of the learned counsel for the private respondents that we have to consider the final order passed in Writ Petition No.18471-73/04, which later came to be transferred to this Tribunal and registered as T.A.1078/2009. Therefore, a careful look at the order of the Tribunal in TA 1078/2009 is necessary. A careful reading of the order in the said TA makes it clear that the Tribunal had expressed an opinion that the applicants had a case to get promotion from 26.04.2005. In the penultimate paragraph, the direction to the respondents is to look into this.
16. It is apparent from the facts narrated above that after the order of the Honble High Court in WP No.18471-73/04, the respondents held a DPC, did not go into reservation or rota-quota and in order to implement the High Courts order, gave the twelve petitioners ad hoc promotion. Now when the Tribunal in TA 1078/2009 directed the respondents to look into their case, the respondents could not do so in isolation and straightaway confirm their promotion as regular promotion from 26.04.2005 because that would not have been as per rules and the department had to consider all such cases together, look at the vacancies, work out the reservation quota and degree/ diploma ratio and then only fill up the vacancies. As stated earlier, since the DPC proceedings are not challenged before us, we have not gone into it. What is before us is whether the respondents have implemented the order of this Tribunal in TA 1078/2009.
17. In our considered opinion, the Tribunal had only directed that the respondents will look into their case. The language of the Tribunals order is crystal clear and the respondents have, within the framework of rules and regulations, looked at their claim and given them promotion from the date they became eligible as per their category i.e. UR degree holders and vacancies available in that category. In our view, no irregularity has been committed in doing so. In fact, the applicants had filed a representation against the DPC, which was disposed off vide order dated 17.02.2014.
18. In view of the above, we see no reason to interfere with the impugned order dated 12.09.2013 and the OA is, therefore, dismissed. No costs.
( P.K. Basu ) ( V. Ajay Kumar ) Member (A) Member (J) /dkm/