Central Administrative Tribunal - Delhi
Gyan Prakash vs Delhi Transport Corporation, Govt. Of ... on 1 August, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No.1680/2016
With
O.A. No.1681/2016
New Delhi, this the 1st day of August, 2016
Hon'ble Mr. Justice M. S. Sullar, Member (J)
Hon'ble Mr. V. N. Gaur, Member (A)
OA No.1680/2016
Shri Gyan Prakash (Bach No.21927,
Token No.63888)
S/o Shri Khilan Anuragi
Aged about 34 years
R/o D-49, DTC Colony,
Shadipur,
New Delhi-110008. ...Applicant
OA No.1681/2016
Shri Kesha Ram (Batch No.22888,
Token No.64845)
S/o Shri Naina Singh
R/o G-126, DTC Colony,
Shadipur, New Delhi. ..Applicant
(Argued by: Shri Ashok Gupta)
Versus
1. The Chairman,
Delhi Transport Corporation (HQ),
Indrapastha, I.P. Estate,
New Delhi-110002.
2. Depot Manager,
DTC (Govt. of NCT of Delhi),
Millennium Depot-4,
New Delhi. ...Respondents
(By Advocate: Ms. Ruchira Gupta)
ORDER (ORAL )
Justice M. S. Sullar, Member (J):
As common questions of law and facts are involved, we propose to dispose of the above mentioned Original Applications 2 O.A 1680/2016 and connected case (OAs) by means of this common decision, in order to avoid repetition of facts.
2. The sum and substance of the facts and material, relevant for deciding the instant OAs, exposited from the record, are that the applicants were working as Drivers in Delhi Transport Corporation (DTC). The India Trade Promotion Organisation (ITPO), advertised the post of Drivers through the medium of advertisement dated 24.10.2015. Subsequently, applicants requested the Depot Manager of DTC to issue "No Objection Certificate" (NOC) for applying for the post of Drivers in ITPO. The DTC issued NOC to the applicants on 19.11.2015 (Annexure- E).
3. The DTC has also issued certificate dated 19.11.2015 (Annexure-F) for submission to the ITPO certifying therein that they are the bona fide employees of the Corporation and working in the capacity of Drivers. On this assurance and in pursuance of NOC, they applied for the post of Drivers in ITPO and were duly selected by ITPO.
4. As a consequence thereof, ITPO issued a letter dated 11.03.2016 (Annexure-G) requesting the DTC to release the applicants, as early as possible and to send their Vigilance/Police Clearance, ACR and medical fitness report. The ITPO again issued reminder dated 31.03.2016 (Annexure-H) in this regard, but the respondents refused to relieve them. It necessitated the applicants to challenge the impugned action of the respondents 3 O.A 1680/2016 and connected case in the instant OAs, invoking the provisions of Section 19 of the Administrative Tribunals Act, 1985, on the following grounds:-
"5.1. Because, the action of the respondents is illegal, arbitrary, unjust and discriminatory which is violative of Articles 14 & 16 of the Constitution of India.
5.2. Because the applicants applied for the post of Driver in ITPO after issuing No Objection Certificate by the competent authority.
5.3. Because competent authority issued No Objection Certificate on 19.11.2015 in favour of applicant for applying to the post of Driver in ITPO.
5.4 Because competent authority issued certificate for submission in office to ITPO.
5.5. Because competent authority cannot deny to relieve the applicant on deputation basis along with all the required documents in pursuance of NOC dated 16.11.2015.
5.6 Because competent authority (Depot Manager) is duty bout to follow NOC dated 19.11.2015.
5.7. Because respondents (sic) have not complied with (sic) letters (sic) dated 11.03.2016 and 31.03.2016 till date.
5.8. Because applicant was (sic) duly selected by ITPO as Driver. 5.9. Because no disciplinary and (sic) criminal proceedings are pending against the applicants.
5.10. Because applicants are (sic) harassed by the respondents (sic) till date.
5.11 Because the competent authority allowed to apply against the post of Driver to the applicant".
5. According to the applicants, the impugned action of the respondents is illegal, arbitrary and discriminatory. On the strength of the aforesaid grounds, the applicants sought quashing of the impugned action of the respondents, in the manner indicated, hereinabove.
6. The respondents refuted the claim of the applicants, filed their reply, wherein it was pleaded that the cases of the applicants for temporarily relieving from service to enable them to join ITPO, was rejected by the competent authority, vide letter dated 13.05.2016 (Annexure R-1). They cannot be relieved from their 4 O.A 1680/2016 and connected case duties, due to shortage of line duty Drivers in the DTC. However, the issuance of NOC (Annexure-E) and verification certificate (Annexure-F) was admitted. According to the respondents, issuance of NOC, does not confer any legal right on the applicants to be relieved from their present duties in DTC.
7. Virtually acknowledging the factual matrix and reiterating the validity of the impugned action, the respondents have stoutly denied all other allegations and grounds contained in the OAs and prayed for their dismissal.
8. At the very outset, the learned counsel has contended with some amount of vehemence that NOC and verification certificate were duly issued to the applicants before applying on the post of Drivers in ITPO, now the DTC cannot deny to relieve the applicants. In support of the contention, he has placed reliance on the judgment of Hon'ble High Court of Delhi in case of Shashi Kant Singh Vs. U.O.I & Others 2011 LawSuit (Del) 2775 and order of this Tribunal in OA No.1097/2012 titled as Ratnesh Kumar Dubey Vs. U.O.I. & Others decided on 10.12.2012.
9. On the contrary, learned counsel for respondents has vehemently urged that, no doubt, NOC and verification certificate were issued, but still DTC has a right to deny to relieve the applicants. She has relied upon the observations of this Tribunal in cases Dr. Dilip Kumar Vs. U.O.I. & Another 2010 SCC OnLine CAT 910 and Shri Gurbaksh Kumar Vs. U.O.I. & Others 2007 SCC OnLine CAT 2509.
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O.A 1680/2016 and connected case
10. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after considering the entire matter, we are of the firm view that the instant OAs deserve to be accepted for the reasons mentioned, hereinbelow.
11. We have gone through the judgments of this Tribunal. In Dr. Dilip Kumar's case (supra), the Controller General of Accounts (Department of Expenditure), issued instructions to prohibit an employee to be sent on deputation, if he is facing disciplinary proceedings, wherein charge sheet has also been framed. Similarly, in Shri Gurabaksh Kumar's case (supra), the applicant (therein) pleaded discrimination against the policy made by the department. He miserably failed to prove the discrimination, as the specific stance taken by the respondents was that, no employee had been spared to join the post on deputation after the policy was made in 2006.
12. On the peculiar facts and in the special circumstances of those cases, the plea of discrimination was held to be not proved, in view of the pointed policy, and it was observed that deputation is a tripartite agreement or arrangement between the borrowing and the lending departments as also the employee concerned.
13. Possibly, no one can dispute with regard to the aforesaid observations, but the same would not come to the rescue of the respondents in the instant controversy, because neither the DTC has framed any such policy prohibiting the employee to work on 6 O.A 1680/2016 and connected case deputation post nor applicants are facing any disciplinary proceedings.
14. As is evident from the record that applicants were working on the post of Drivers with DTC. The ITPO, issued advertisement dated 24.10.2015 (Annexure-D) to fill the post of Drivers. In pursuance thereto, applicants applied and the DTC issued NOC dated 19.11.2015 (Annexure-E). Not only that, the DTC has also issued verification certificate dated 19.11.2015 (Annexure-F) to the applicants. In pursuance of this assurance and NOC, they applied and were duly selected as Drivers in ITPO. After their selection, ITPO issued a letter dated 11.03.2016 (Annexure-G) requesting the DTC to immediately relieve the applicants to join in ITPO along with their service record, but it failed to relieve the applicants despite, reminder dated 31.03.2016 (Annexure-H) by the ITPO.
15. The only ground pressed into service, not to relieve the applicants is that, there is a shortage of Drivers in DTC. This stand of the respondents is untenable at this stage. In case, there was a shortage of Drivers, then the DTC ought to have not issued NOC (Annexure-E) and verification certificate (Annexure-F). Once NOC and verification certificates were duly issued and the applicants exercised their options, applied and duly selected on the post of Drivers in ITPO, then indeed the DTC is estopped from, and cannot and should not be heard to say subsequently that the applicants could not be relieved on account of shortage of Drivers, as urged on their behalf.
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O.A 1680/2016 and connected case
16. It is not a matter of dispute that the pay scale is higher on the post of Drivers in ITPO than that of the pay scale in DTC, which the applicants are getting. The applicants are entitled to avail equal opportunity in the matter relating to appointment on higher grade. If they are denied their legitimate benefit, not only that it would be contrary to equality of opportunity of employment as enshrined under Article 16 of the Constitution of India, but at the same time, it will be against the principles of natural justice, which is not legally permissible. This right cannot legitimately be denied to the applicants in the garb of shortage of drivers.
17. Moreover, the ITPO was deprived from the services of the Drivers (applicants) in pursuance of the advertisement dated 24.10.2015 till today, on account of the unsustainable objection of the DTC. If the applicants are not relieved by the respondents, then it may take long period to readvertise the post of Drivers and it will not only inculcate and perpetuate injustice to the applicants, but it will also cause irreparable loss to the ITPO as well. The mere issuance of NOC (Annexure-E) and verification certificate (Annexure-F), is sufficient to infer that the DTC has agreed to the deputation of the applicants in the borrowing organisation (ITPO).
18. Almost an identical issue came to be decided in Shashi Kant Singh's case (supra) by the Hon'ble High Court, wherein it was observed that while applying to the post the petitioner got his application forwarded through the competent authority under whom he was serving and the requirement of manpower had to be 8 O.A 1680/2016 and connected case considered at that stage by the competent authority and not at a later stage. Once the application has been forwarded unconditionally, and the person concerned is offered the post applied for, he should be relieved of his duty to join the new post, is a matter of course, particularly when the competent authority granted the NOC. It was further observed that public interest, i.e., retention of the Government servant in the parent service has to be considered at the stage when No Objection Certificate is sought and not if the person obtains employment to another civil post. Similar view was taken in Ratnesh Kumar Dubey's case (supra) by this Tribunal.
19. Therefore, the ratio of law laid down in the judgments in Shashi Kant Singh's case (supra) and Ratnesh Kumar Dubey's case (supra), is mutatis mutandis applicable to the facts of the present case, and is a complete answer to the problem in hand. Hence, the impugned action of the respondents is arbitrary, illegal and is liable to be set aside.
20. In the light of the aforesaid reasons, the OAs are accepted. The order dated 13.05.2016 (Annexure R-1) is set aside. The respondents are directed to relieve the applicants forthwith, to enable them to join on the post of Drivers in the borrowing organisation, i.e., ITPO in accordance with law. However, the parties are left to bear their own costs.
(V. N. Gaur) (Justice M. S. Sullar)
Member (A) Member (J)
01.08.2016
Rakesh
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Vide separate order of even date, rendered in OA No.1680/2016 titled as Gyan Prakash Vs. DTC and Another, the OA has been accepted, with no order as to costs.
(V. N. Gaur) (Justice M. S. Sullar) Member (A) Member (J) Rakesh Ist day of August, 2016