Central Administrative Tribunal - Delhi
Kuldeep Singh Yadav vs Municipal Corporation Of Delhi Through ... on 6 May, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Transferred Application No.320/2009 with Transferred Application No.371/2009 This the 6th day of May, 2010 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) T.A. NO.320/2009 Kuldeep Singh Yadav, Additional Deputy Commissioner, Municipal corporation of Delhi, Old Hindu college Building, Kashmere Gate, New Delhi-110006. Applicant ( By Shri Keshav Kaushik, Advocate ) Versus 1. Municipal Corporation of Delhi through its Commissioner, Town Hall, Chandni Chowk, Delhi-110006. 2. National Commission for SCs/STs through its Chairman, Lok Nayak Bhawan, Khan Market, New Delhi. 3. Shri R. S. Meena s/O Mam Raj Meena, Addl. Dy. Commissioner/Joint A&C, C/O M.C.D., Town Hall, Chandni Chowk, Delhi-110006. Respondents ( By Shri Himanshu Upadhyaya with Shri Nitish Kumar and Ms. Ruby Sharma, for MCD; Shri L. R. Khatana for Respondent No.3, Advocates ) T.A.NO.. 371/2009 1. Sangeeta Bansal w/o Pankaj Bansal, D-2/37D, Keshavpuram, New Delhi-110035. 2. Alka R. Sharma w/o Rajeev Sharma, R/O C-39, Lajpat Nagar-II, New Delhi-110024. Applicant ( By Mrs. Anjana Gosain, Advocate ) Versus 1. Municipal Corporation of Delhi through its Commissioner, Town Hall, Chandni Chowk, Delhi-110006. 2. Shri R. S. Meena s/O Mam Raj Meena, Addl. Dy. Commissioner/Joint A&C, C/O M.C.D., Town Hall, Chandni Chowk, Delhi-110006. Respondents ( By Shri Himanshu Upadhyaya with Shri Nitish Kumar and Ms. Ruby Sharma, for MCD; Shri L. R. Khatana for Respondent No.2, Advocates ) O R D E R Justice V. K. Bali, Chairman:
By this common order, we propose to dispose of two connected Transferred Applications, as common questions of law and facts arise in both the matters. Learned counsel representing the parties also suggest likewise. The bare minimum facts as may need necessary mention have been extracted from T.A. No.320/2009 in the matter of Kuldeep Singh Yadav v Municipal Corporation of Delhi & others. The applicant filed Writ Petition bearing WP(C) No.12781/2004 before the Honble High Court of Delhi seeking to quash and set aside order dated 8.4.2004, vide which, in compliance of the orders/directions of the National Commission for SCs/STs in the matter of representation from Shri R. S. Meena, 3rd respondent arrayed in the present Application regarding his promotion as per reservation policy, the matter was reviewed, and he was regularized on the post of Assistant Labour Welfare Officer w.e.f. 1.1.1990 instead of 19.8.1991. Consequent upon revision of regular appointment as Assistant Labour Welfare Officer, the 3rd respondent, who was then working as Assistant Commissioner/Factory on ad hoc basis, was promoted on the post of Assistant Commissioner/Deputy Assessor & Collector on ad hoc basis in the pay scale of Rs.10000-15200 w.e.f. 1.3.1996 instead of 4.9.1997, and also promoted on the post of Addl. Dy. Commissioner/Joint Assessor & Collector on ad hoc basis against a supernumerary post of ADC/Jt.A&C created in that regard with approval of Chairman, Standing Committee and the Mayor.
2. The primary contention raised in support of the Transferred Application is that the impugned order that came to be passed on the orders/directions of the National Commission for SCs/STs, would be wholly without jurisdiction. The said Commission, it is urged, has no jurisdiction to issue directions in respect of service matters, and, inasmuch as the impugned order has been passed exclusively on the basis of directions issued by the Commission, the same has to be set aside. In the context of the only controversy that has been raised, it may not be necessary to give facts in detail. The relevant facts which may still need a mention reveal that the applicant was appointed with the respondent Corporation on 1.12.1986 on the post of Labour Welfare Superintendent, whereas the 3rd respondent was appointed on 1.1.1987. Provisional seniority list on the post of Labour Welfare Superintendent came into being on 28.8.1989, wherein the seniority position of the applicant was at no.11 and that of the 3rd respondent was at no.13. Vide office order dated 19.8.1991, the applicant along with four others was promoted to the post of Assistant Labour Welfare Officer on ad hoc basis. He was further promoted to the post of Assistant Commissioner/Deputy Assessor & Collector vide order dated 8.1.2002. He was shown in the seniority circulated on 18.7.2002 at serial no.11, whereas the 3rd respondent was shown at serial no.13. On 30.7.2002 final combined seniority list was drawn in which the applicant was shown at serial no.10 as against that of the 3rd respondent at no.12. On 20.9.2003 the applicant and the 3rd respondent, along with other officers were regularized on the post of Additional Labour Welfare Officers w.e.f. 2.9.2003 after holding review DPC by the respondent Corporation. Seniority of the applicant vis-`-vis the 3rd respondent on different dates stood, thus:
S. No. Dt. of appointment Seniority list dt. 28.08.89 Office orders dt. 18.7.02 Final combined seniority list dt. 30.7.02
1. Pet. 01.12.1986 Resp.No.3. 01.01.1987 11 13 11 13 10 12 After the impugned order, the seniority of the applicant vis-`-vis the 3rd respondent stands as follows:
S. No. Date Seniority list as on 30.7.02 Present seniority list after 8.4.04
1. Pet. 01.12.1986 Resp.No.3. 01.01.1987 10 112 4 1 [ It would appear from the records of the case that the 3rd respondent had made a complaint to the National Commission for SCs/STs with regard to wrong assignment of seniority to him. The respondent belongs to Scheduled Tribe category and it has been his case that in a 40-point roster, point no.22 is reserved for ST category candidate. A vacancy in the said category fell vacant in 1988, and that being so, it is the case of the said respondent, he was entitled for promotion from the said date, particularly when he was having the eligibility of requisite number of years of qualifying service on the post of Labour Welfare Superintendent. It would further appear that since his request was not being acceded to by the respondent Corporation, he filed Writ Petition bearing WP(C) No.2187/2003 before the Honble High Court of Delhi. The order impugned in the present Application came to be passed during the pendency of the writ petition aforesaid. That being so, the applicant filed civil misc. application bearing CM No.2305/2004 in the said writ petition seeking to withdraw his petition. On 25.2.2004, the said writ petition was dismissed as withdrawn by recording the following order:
CM. 2305/2004 in WP(C) No.2127/2003 Petitioner no.1 states that relief has enured to him in terms of the orders passed by the National Commission for SC and ST dated 28.1.2004 and in view of the said order he does not wish to pursue with the writ petition. Writ petition qua petitioner No.1 is accordingly dismissed as not pressed. The applicant takes serious exception to the impugned order, not only on the ground that no directions could at all be issued by the National Commission for SC/ST in service matters, and that the order impugned has been passed simply obeying the directions of the said Commission, but also that the change brought about in long standing seniority between the applicant and the 3rd respondent has been worked to the disadvantage of the applicant without even hearing him in the matter. The 3rd respondent would, however, in his endeavour to uphold the impugned order, contend that under provisions of Article 338 of the Constitution of India, the Commission would have jurisdiction to deal with the matter, and further that it was only a case of correcting an apparent mistake to give reserved roster point 22 to the 3rd respondent in the 40-point roster. When this matter came up for hearing before us on 11.12.2009, we recorded the following order:
The impugned order has primarily been challenged on the ground that the same came to be passed on the directions issued by National Commission for Scheduled Tribes which shall have no authority or jurisdiction to give directions in compliance whereof the impugned order could be passed.
We have heard learned counsel for the parties at some length. We will go into the issue raised in this Original application. We may also call upon the parties to address on merits of the controversy of this case in case the plea raised by the applicant is not accepted.
Counsel for the applicant, at this stage, states that in view of the observations made above today, the applicant be permitted to file an additional affidavit. Request is granted. Let additional affidavit be filed on behalf of the applicant before the next date of hearing.
List the matter again for hearing on 15.01.2010. Additional affidavit has been filed by the applicant to which the 3rd respondent has even filed reply as well. Having heard the learned counsel representing the parties, we are, however, of the view that if the argument of the learned counsel for the applicant with regard to the impugned order being without jurisdiction is to be accepted, it would not be appropriate for us to examine the matter on merits, as that, in the first instance, has to be done by the respondent. We find considerable merit in the contention raised by the learned counsel for the applicant that the impugned order is without jurisdiction. Learned counsel for the respondents, as mentioned above, would, however, contend that under Article 338 of the Constitution, the National Commission for Scheduled Castes and Scheduled Tribes has power to investigate and monitor all matters relating to the safeguards provided for SC/ST under the Constitution or under any other law for the time being in force or under any order of the Government, as also to inquire into specific complaints with respect to the deprivation of rights and safeguards of SC/ST. Pertinent reference in that connection has been made to clauses (5) (a) and (b) of Article 338, which read as follows:
(5) It shall be the duty of the Commission
(a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes and Scheduled Tribes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards;
(b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes and Scheduled Tribes; We would have delved over the issue in all its finer and minute details, but inasmuch as, the matter is not res integra and rather stands clinched by an authoritative pronouncement of the highest Court of the land, it would be unnecessarily burdening the judgment to enter into the said exercise. In All India Indian Overseas Bank SC and ST Employees Welfare association & Others v Union of India & Others [(1996) 6 SCC 606], while dealing with an interim order passed by the National Commission for SC/ST directing the respondent Bank to stop the promotion process pending further investigation into and final verdict therein by the Commission, the Honble Supreme Court held as follows:
10. .All the procedural powers of a civil court are given to the commission for the purpose of investigating and inquiring into these matters and that too for that limited purpose only. The powers of a civil court of granting injunctions, temporary or permanent, do not inhere in the Commission nor can such a power be inhered or derived from a reading of clause (8) of article 338 of the Constitution.
11. The Commission having not been specifically granted any power to issue interim injunctions, lacks the authority to issue an order of the type found in the letter dated 4-3-1993. The order itself being bad for want of jurisdiction, all other questions and considerations raised in the appeal are redundant. The High Court was justified in taking the view it did. The appeal is dismissed.
3. Confronted with the law laid down by the Honble Supreme Court, Shri L. R. Khatana, learned counsel representing the 3rd respondent, would contend that the impugned order has not been passed pursuant to directions issued by the Commission and it is the respondent Corporation which has passed the order, and further that after all, it is only a case of correction of an apparent mistake. The counsel does not appear to be right. A bare perusal of the impugned order would manifest that the same came to be passed in compliance of the orders/directions of the Commission. We may reproduce the very first para of the order dated 8.4.2004, which reads as follows:
In compliance of the orders/directions of National Commission for SCs/STs in the matter of representation from Shri RS Meena regarding promotion as per the reservation policy, the matter has been reviewed. It is while reviewing the matter that the 3rd respondent has been given promotions on various posts from earlier dates, as has already been mentioned. In the counter reply filed on behalf of the respondent Corporation in paragraph 14 it has not been denied that the impugned order came to be passed on the directions of the Commission. It has rather been pleaded that in reply to this para it is submitted that in compliance of proceedings/findings/orders dated 12.02.2004 of National Commission for SC/ST (Respondent No.2 in this case), Sh. R. S. Meena, Respondent No.3 has been regularized to the post of Asstt. Labour Welfare Officer (ALWO) in the pay scale of Rs.6500-10500/- w.e.f. 1.01.1990 instead of 19.08.1991. Insofar as, the plea raised by Shri Khatana that it is merely correction of an apparent mistake, is concerned, the applicant would have serious dispute on the issue. We need not, however, go into this issue, as in our considered view, this matter may need to be gone into in the first instance by the respondent Corporation, being totally uninfluenced of the orders issued by the Commission. The 3rd respondent has been clamouring for his right of reservation against roster point 22 for a long time. He also filed a writ petition in that regard, but the relief was ultimately granted to him by the respondent Corporation on the directions of the Commission. He would not know that the Commission had no jurisdiction to entertain and adjudicate upon such matters. He may have thus bona fide thought that the relief had been given to him by the competent authority, and in wake of relief having been granted to him, he withdrew his writ petition. His plea for reservation against the roster point cannot go abegging; it has to be addressed and properly adjudicated by the respondent Corporation, but for that, surely, the applicants or any others who may be adversely affected, shall have to be heard. Concededly, the applicants, before passing the impugned order dated 8.4.2004 were not heard in the matter. Assigning seniority to the 3rd respondent over and above the applicants would certainly affect their rights adversely and, therefore, they had to be heard. The impugned order needs to be set aside on that count as well.
4. In view of the discussion made above, we allow these Transferred Applications. Impugned order dated 8.4.2004 is quashed and set aside. Seniority of the applicants vis-`-vis the 3rd respondent shall be restored, but in the facts and circumstances of the case, we feel it equitable to order that the respondent Corporation would go into the issue and determine the matter at its own end by taking into consideration the defence that may be projected by the applicants and all others who may be adversely affected because of assigning seniority to the 3rd respondent against roster point 22. Since considerable time has already gone by, and the inter se seniority dispute between the applicants and the 3rd respondent is lingering on, we order that the Corporation would deal with the matter expeditiously and would pass final orders preferably within a period of two months after putting the applicants and others to notice. There shall be no order as to costs.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/