Central Administrative Tribunal - Delhi
New Delhi Municipal Council Through Its ... vs Om Prakash Dabas on 23 September, 2010
Central Administrative Tribunal Principal Bench, New Delhi T.A.No.5/2010 New Delhi this the 23rd day of September 2010 Honble Shri Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A New Delhi Municipal Council through its Chairman, Palika Kendra, Parliament Street, New Delhi-110001. -Applicant (By Advocates: Ms. Shikha Tandon and Ms. Kanika Agnihotri) -Versus- Om Prakash Dabas, S/o Shri Sumar Singh, R/o Village Rani Khera, Delhi. ..Respondent (By Advocate: None) O R D E R
Shri Shanker Raju:
On jurisdiction to deal with this issue under Section 29 (4) of the Administrative Tribunals Act, 1985, we proceed to dispose of this TA, which is an appeal preferred against the judgment decree of the learned Senior Civil Judge passed on 10.10.2008, wherein the claim of respondent for regularization w.e.f. 22.02.1994, i.e., the date when he had passed the trade test for the post of Light Motor Vehicle Driver (LMV Driver, for short) has been allowed with all consequences.
2. Respondent, who was engaged on muster roll as Driver on 27.05.1985 was taken on regular muster roll on 05.02.1987 as Heavy Vehicle Motor Driver. Thereafter, pursuant upon the direction of the High Court with relaxation in age respondent was regularized w.e.f. 16.06.1997 as LMV Driver-cum-Fitter. The claim before the learned Senior Civil Judge was regularization from 1994, when despite passing trade test respondent has been deprived of regularization, whereas juniors had been accorded the same.
3. Earlier, respondent had approached in a Suit, which pursuant upon the decision of the High Court was withdrawn with liberty to file a fresh Suit.
4. The learned Senior Civil Judge framed the issue as to the entitlement of respondent to regularization as LMV Driver with all consequential benefits w.e.f. 05.02.1987, which was decided on the basis of evidence and non-production of record by the applicant in this TA, without leading any evidence to hold that when the educational qualification was not an impediment, which was uniformly followed by the applicant in this TA, then age relaxation, which was subsequently accorded, has been rightly given and would have to be given to the respondent when, he had qualified the trade test in 1994. Accordingly, it was held that respondent is entitled to be regularized with effect from 1994.
5. This is sought to be challenged by the applicant in TA on a preliminary objection of Order 2 (2) of the Code of Civil Procedure stating that in the earlier Suit when respondent had confined his relief to permanent injunction, which was withdrawn, the same holds a bar for further proceedings. It is also stated that once the regularization was made as per the direction of the High Court, respondent should have gone for any other relief to the High Court. It is stated that regularization was made only in 1997, which cannot hold good for the year 1994. It is also stated that the learned Senior Civil Judge should not have granted back wages and regularization to respondent from 1994, as difference of pay from 1994 to 1997. He should have gone for age relaxation before the High Court. Applicant in appeal states that the judgment of the learned Senior Civil Judge was erroneous and is liable to be set aside. A prayer has been made by the applicant to transfer this case to the Central Administrative Tribunal, which has accordingly come to us.
6. As none appeared for the respodent, we resort to Rule 16 of the Central Administrative Tribunal (Procedure) Rules, 1987, as the only issue before us is whether the judgment and decree passed by the learned Senior Civil Judge in Suit No.717/2006 suffers from any legal infirmity. Insofar as maintainability of the Suit is concerned, earlier the issue raised by the respondent by way of permanent injunction was withdrawn with liberty, as he was regularized, does not mean that he has foregone his right to seek regularization from a retrospective date, which was left open, can be adjudicated in the Suit and was rightly adjudicated and decided by the learned Senior Civil Judge.
7. Insofar as age relaxation is concerned, as it transpired from the record that the Lieutenant Governor was approached for relaxation pursuant upon selection held in 1994 as well as in 1997, deeming this regularization as one of the modes of promotion, for which age is not a criterion, it is very illogical that once despite being over-aged respondent was regularized from 1997, the same decision holds good for 1994 also. As such, this age relaxation is to be deemed and would not be an impediment for consideration of respondent for regularization in 1994, as the qualification of 8th passed had not become an impediment for others as well as applicant in a subsequent selection as a policy decision on a statement made in the Suit would hold good for 1994 selection. There is no valid reason for the applicant to have denied regularization to respondent from the year 1994 when he had qualified the trade test. As such, his regularization through judgment and decree by the learned Senior Civil Judge does not suffer from any legal infirmity. The grounds taken in appeal are misconceived and are rejected. Accordingly, this TA fails and is accordingly dismissed. Applicant shall now comply with the orders passed by the learned Senior Civil Judge as per the apt legal methodology. No costs.
(Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) San.