Central Administrative Tribunal - Delhi
Tecnical Excutive Officers Aasn vs Govt. Of Nctd on 12 February, 2024
1
OA No.4344/2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No.4344/2015
Order reserved on 08.01.2024
Order pronounced on 12.02.2024
Hon'ble Mr. Anand Mathur, Member (A)
Hon'ble Mr. Manish Garg, Member (J)
1. Technical Executive Officers Association
Through its President
Sh. S.K. Mishra
Motor Licensing Officer
Transport Department of GNCT
S/o Late Sh. K.D. Mishra
Aged about 56 years
R/o A-305, Defence Colony
New Delhi-110024.
2. Sh. Sant Ram
Motor Licensing Officer, Janakpuri
S/o Sh. Hukum Chand
Aged about 56 years, R/o E-39 & 40
Village Manglapuri
Palam Colony, New Delhi-110045.
....Applicants
(By Advocate : Mr. Nilansh Gaur)
Versus
1. Lt. Governor of Delhi
Govt. of NCT of Delhi
Raj Niwas Marg, New Delhi-110054.
2. Union Public Service Commission
Through its Secretary
Dholpur House, Shahjahan Road
New Delhi.
3. Govt. of NCT of Delhi
Through Principal Secretary-cum
Commissioner(Transport)
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OA No.4344/2015
5/9 Underhill Road, Delhi-110054.
4. Sh. Tarun Kumar Kapoor
Pollution Control Officer
Headquarter.
5. Sh. Sanjay Dewan
Pollution Control Officer
Headquarter
6. Sh. Subodh Kumar
Pollution Control Officer
Headquarter
7. Sh. Gurmeet Singh
Pollution Control Officer
Headquarter.
8. Sh. Chandrashekhar Nawani
Pollution Control Officer
Headquarter.
9. Sh. Ajay Memoriya
Pollution Control Officer
Headquarter.
10. Sh. Subhash Chandra
Pollution Control Officer
Headquarter.
11. Sh. Vikas Jain
Pollution Control Officer
Headquarter
(Respondent Nos.4 to 11 are to be served through
respondent No.3)
...Respondents
(By Advocate: Ms. Sangeeta Rai)
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OA No.4344/2015
ORDER
Hon'ble Mr. Anand Mathur, Member (A) The present OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:-
"8.1 Set aside the impugned order dated 19.10.2015 (Annexure A-1).
8.2 Declare Clause 12 of the Recruitment Rules for the post of DC (Transport) in so far as it includes the post of PCO as feeder category (Annexure A-2).
8.3 Direct the respondents to consider the statutory cadre of the applicants including all the posts for promotion as DC (Transport) only with all consequential benefits and restrain the respondents for further granting an advantage to the PCOs for any cadre post on the cadre of the applicants;
8.4 Restrain the respondents from considering PCO for the promotion post of DC (Transport)."
2. Applicant No.1 is Association of Technical Executive Officers in Transport Department of Govt. of NCT of Delhi, whereas applicant No.2, namely Sh. Sant Ram, has joined in individual capacity.
3. Brief facts of the present case as mentioned in the OA and argued by learned counsel for the applicants are that the members of the applicants' Association who have been working as Motor Vehicle Inspectors(MVI) belonging to a separate, distinct, linear and statutory cadre under Section 213 of the Motor Vehicle Act, 1988, are aggrieved by the 4 OA No.4344/2015 impugned order dated 19.10.2015 issued by the respondent (Transport Department, Govt. of NCT of Delhi), whereby service particulars of the private respondents- Pollution Control Officers(PCO) have been called for consideration for promotion to the post of Deputy Commissioner (Transport).
3.1 The subject matter of challenge in the OA is clause 12 of the Recruitment Rules for the post of Deputy Commissioner(Transport), as amended on 06.12.2005, whereby PCOs have been included as a feeder category for promotion to the post of Deputy Commissioner (Transport) in contravention of the Order passed by this Tribunal in OA No.2193/1991 decided on 07.07.1996 and the judgment dated 10.03.1997 rendered by of the Hon'ble Apex Court in SLP(c) Nos.22909-11/1996 wherein it has been held as under:-
"It would be seen that admittedly, members of the appellant-Association are Technical Anti-Pollution Level Test Inspectors. Under the Motor Vehicles Act, the cadre of Motor Vehicle Inspectors has statutory base and, therefore, the Motor Vehicle Inspectors are distinct from T.A.P.L.T. Inspectors represented through the appellant- Association.
Therefore, they cannot have any parity with a statutory cadre officers. It would be for the appropriate Govt. to take policy decision. The Tribunal is not competent to give directions to lay down the policy or to issue directions to create promotional avenues. Such a direction would amount to entrenching upon area of policy making which is exclusively within the purview of the appropriate 5 OA No.4344/2015 Government. The Tribunal, therefore, was right in rejecting the application and holding that there was no contempt.
The appeal is accordingly dismissed. No costs."
3.2 Learned counsel for the applicants submitted that the Hon'ble Supreme Court and this Tribunal have already ruled that the cadre of MVI and PLTI are distinct and separate cadres with different duties as well as functions. However, in contravention of the judgment of the Hon'ble Apex Court, the respondents included PCOs as feeder category to the post of Dy. Commissioner(Transport). 3.3 OA No.2519/2012 seeking merger of PCOs with MVIs was also dismissed by this Tribunal vide Order dated 04.10.2012, the operative portion of which reads as under:-
"10...What we find instead is an attempt to re-agitate the issue of merger by back door, which certainly cannot be a ground for judicial intervention in the transfer order. The decision of the Coordinate Benches of the Tribunal cited on behalf of the applicant, were factually distinguishable and cannot be cited as precedents. Accordingly the OA is found to be devoid of merit and dismissed hereby with no order as to costs."
The request of PLTIs to merge them with MVI cadre has already been dismissed by the respondents vide order dated 27.07.2012.
6OA No.4344/2015 3.4 Learned counsel for the applicants further submitted that OA No.3121/2011 filed by the PCOs seeking promotion as Deputy Commissioner(Transport) had also been rejected by this Tribunal vide Order dated 10.11.2014 by directing consideration of PCOs for promotion on consideration of their eligibility but not for promotion to the post of Deputy Commissioner(Transport), however, to the post of DC (Enforcement). The said Order passed by this Tribunal has attained finality since the same was not challenged by the PCOs.
3.5 It is further stated that the PCOs have two promotional channels as a result of the impugned clause 12 of the amendment notification dated 06.12.2005, as is evident from the fact that most of the members of the applicants' association have retired without promotion, as MVIs, whereas the private respondents have been promoted as DC (Transport). Thus, the respondents by acting upon the amended RRs have overreached the findings and binding precedents of the judicial fora, in operating the additional channel of promotion for the private respondents i.e. the PCOs. Hence, this OA. 7 OA No.4344/2015
4. The respondents have filed the counter affidavit rebutting the averments made in the OA. It has been stated that the applicants are challenging the Recruitment Rules which is a policy decision of the Government. The respondents have followed due procedure of law required to frame the recruitment rules and after concurrence of UPSC, the RRs were notified vide notification dated 06.12.2005.
4.1 Promotion to the post of DC(Transport) is being processed as per notified RRs as per directions of this Tribunal passed in OA No.3121/2011 vide Order dated 10.11.2014.
4.2 The issue of judicial review of a government policy is no more res-integra. The Hon'ble Supreme Court in Film Festivals & Ors. vs. Gaurav Ashwin Jain & Ors. (2007) 4 SCC 737 has held as under:-
"14. The scope of judicial review of governmental policy is now well defined. Courts do not and cannot act as Appellate Authorities examining the correctness, suitability and appropriateness of a policy. Nor are courts Advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground 8 OA No.4344/2015 that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review."
4.3 Thus, it is well established that the courts cannot interfere with policy matters either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the soundness of the policy, is subject to judicial review.
5. We have heard learned counsel for both the parties and perused the pleadings on record.
6. The crux of the issue is avenues of promotion provided to RTOs vis-a-vis PCOs. We are fully aware of the fact that fixing of an avenue for promotion is purely a policy matter and judicial forums should refrain from giving any direction as to which policy is to be followed. However, the facts brought out above also includes certain decisions made by Co-ordinate Benches of this Tribunal as well as Hon'ble Apex Court. We, therefore, direct the competent authority amongst the respondents to review the whole policy and arrive at a decision keeping all these judgments/decisions as well as the averments made in this OA in view within a period of eight weeks from the date of receipt of a certified copy of this order. The case of the 9 OA No.4344/2015 applicants be reviewed in light of the fresh policy, so formulated. The decision so arrived at be also communicated to the applicants.
7. With this, the OA stands disposed of. No order as to costs.
(Manish Garg) (Anand Mathur) Member (J) Member (A) /vb/