Central Administrative Tribunal - Delhi
Ashok Kumar Gupta vs North Delhi Municipal Corporation on 9 January, 2025
Item No.51 (Court - 3) O.A. No.200/2018
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.200/2018
Reserved on: 20.12.2024
Pronounced on:
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S Khati, Member (A)
Sh. Ashok Kumar Gupta, S/o Sh. Raj Kishor Gupta,
Aged about 57 years, R/o R-98,
R 98, 2nd Floor,
Model Town-III,
Town Delhi-110009,
Post: Upper Division Clerk (UDC), Group:C.
...Applicant
(By Advocates:
Advocate : Mr. Anuj Aggarwal with Ms. Tanya Rose and
Mr. Shubham Bahl)
Versus
1. North Delhi Municipal Corporation,
Through its Commissioner (North), Dr.
S.P.M. Civic Centre, Minto Road, New
Delhi
Delhi-110002.
2. South Delhi Municipal Corporation,
Through its Commissioner (South), 23rd
Floor, Civic Centre, Minto Road, New
Delhi
Delhi-110002.
3. East Delhi Municipal Corporation,
Through its Commissioner (East), Udhyog
Sadan, Patparganj Industrial Area, Delhi
Delhi-
110095.
...Respondents
(By Advocates:
Advocate : Mr. Subodh Kumar Jha with Mr. Charu Jha)
----
Page 1 of 17
Item No.51 (Court - 3) O.A. No.200/2018
ORDER
Hon'ble Mr. Manish Garg, Member (J):
(J):-
1. Highlighting the facts of the case, learned counsel for the applicant submitted as under :-
1.1 The applicant joined Municipal Corporation of Delhi (MCD) as a Daily Wage/Muster Roll Belder in the year 1978 and was regularized on the said post w.e.f 01.04.1982. Thereafter, he was appointed as a LDC on 08.11.1988. Vide office order dated 21.06.2006, the service of the applicant was terminated by the MCD. Being aggrieved, the applicant preferred an Industrial Dispute before the Industrial Adjudicator with ID No.77 No.77/08. The said Industrial Dispute (ID No.77/08) was decided vide award dated 24.05.2011, whereby where the applicant was held entitled to the relief of reinstatement in service, continuity of service, full back wages, with all other consequential benefits. For th the sake of better appreciation, the award dated 24.05.2011 is reproduced herein below:
"23. Since, the enquiry conducted, against the workman has been vitiated and no opportunity can be given to the management to lead further evidence to prove the alleged m misconduct against the workman, the alleged misconduct remains un un-established. Therefore, it is held that penalty of removal from services imposed upon workman Sh. Ashok Kumar Gupta is illegal and unjustified. Hence, the workman is entitled to be reinstated with full back wages and continuity of services along with all other consequential benefits."
1.2 Subsequently, the said award dated 24.05.2011 was Page 2 of 17 Item No.51 (Court - 3) O.A. No.200/2018 implemented by the respondents vide order dated 14.03.2012 and the applicant was reinstated w.e.f. 12.03.2012.
1.3 During the pendency of the dispute in the year 2007 During 2007, several juniors to the applicant were promoted from the post of LDC to UDC, whereas the the candidature of the applicant was not considered for promotion by the MCD as he was not in service (i.e., terminated terminated from service) during the said period. It is also submitted that one Mr. Balbir Singh (Seniority No.LDC 1580) was promoted vide office order dated 16.10.2007 16.10.2007, who is junior to the applicant (Seniority No. LDC 1579).
1.4 It has been further submitted by the applicant's counsel that vide office order dated 18.02.2013, the UDC UDCs were given Non-
Functional Selection Grade (NFSG). The applicant was also entitled to the NFSG NFS but since he was not promoted in the year 2006 to the post of UDC, he was not given the ben benefit of NFSG.
Subsequently, vide office o order dated 05.06.2013, final Seniority List of UDC promoted up to November, 2009 on regular basis basis, was circulated by the respondents.
1.5 It has been further highlighted by the learned counsel for the applicant that vide vid Office Order rder dated 29.12.2015, the juniors of the applicant, who were promoted as Upper Division Clerk (UDC) in the year 2007, were granted another promotion to the post of Head Clerk. However, the applicant was promoted to the Page 3 of 17 Item No.51 (Court - 3) O.A. No.200/2018 post of Upper Division Clerk Clerk (UDC) vide office order dated 14.03.2016 with immediate effect. The said office order dated 14.03.2016 contains a declaration which reads as under:
"However, National Seniority in respect of Left Out cases (up to Sty. No. 1812) shall be fixed w.e.f. th the date of promotion of their juniors subject to their Vigilance Clearance/Grading of ACRs for the relevant period."
1.6 In the aforesaid backdrop, backdrop the applicant seeks ante ante-dating of the promotion to the post of Upper Division Clerk (UDC) w.e.f.
16.10.2007 with all consequential benefits including grant of Non Functional Selection Grade (NFSG). It has also been highlighted that vide office office order dated 25.07.2017, NDMC again promoted 67 UDCs UDCs to the post of Head Clerk (now call called Assistant Section Officer), however, however, again juniors of the applicant were promoted but not him.
him 1.7 Being aggrieved, the applicant made several representations to the concerned Municipal Municipal Corporation, but to no avail till date. Even he sent a Legal Notice dated 20.11.2017 through his couns counsel but no response to the said Legal Notice has been received till date.
1.8 Consequent upon the aforesaid aforesaid, the applicant filed the present O.A. and seeking the following relief(s):
"(i) Set aside the impugned Office Order No. F.13(346)/CED/DA F.13(346)/CED/DA-
IV/NDMC/2016/574 dated 14.03.2016 to the extend it fails to IV/NDMC/2016/574 promote the applicant to the post of Upper Division Clerk (UDC) retrospectively w.e.f. 16.10.2007 with all consequential benefit (monetary as well as nonmonetary), including Non Functional Selection Grade (NFSG);
(NFSG
(ii) Direct the Respondents to promote the applicant to the post of Upper Division Clerk (UDC) w.e.f 16.10.2007 with all Page 4 of 17 Item No.51 (Court - 3) O.A. No.200/2018 consequential benefits (monetary as well as nonmonetary), including grant of Non Functional Selection Grade (NFSG), etc;
(iii) Direct the Respondents to grant Non Functional Selection Grade (NFSG) to the applicant w.e.f. 14.02.2014 and pay to the applicant the arrears of difference of salary on account of upup- gradation of pay scale;(iv) Direct the Respondents to promote the applicant to the post of Head Clerk (now nomenclated as Assistant applicant Section Officer) w.e.f. 29.12.2015 with all consequential benefits (monetary as well as non monetary) thereof;
(v) issue any appropriate order or direction as this Hon'ble Tribunal may deem fit and proper in the interest of justice and in the favour of the applicant; and
(vi) allow the present application with cost in favour of the applicant."
2. The sum and substance of the argument of the learned counsel for the applicant is as follows:
2.1 Since there was a direction in the award dated 24.05.2011 for continuity of service, the applicant is entitled to the relief of ante-dating dating of the promotion to the post of Upper Division Clerk (UDC) w.e.f. 16.10.2007 with all consequential benefits including grant nt of Non Functional Selection Grade (NFSG).
2.2 One Mr. Balbir Singh (Seniority No. LDC 1580), who is immediate junior to the applicant was also promoted to the post of UDC. However, the case of the applicant with Seniority No. LDC 1579 was not considered for promotion.
2.3 Learned counsel for the applicant, in support of the claim of Learned the applicant, relied upon the decision rendered by the Hon'ble High Court in W.P.(C) 7911-12/2004 7911 12/2004 in the matter of S.C. Bhagat and Ors. Vs. Union Of India and Ors. decided on 26.07.2012. The Page 5 of 17 Item No.51 (Court - 3) O.A. No.200/2018 relevant para of the said judgment is reproduced herein below:
"8. We are afraid that judgment is of no assistance to the respondents. That was a case under the U.P. Industrial Disputes Act, 1947 and the Court described the powers of the Labour Court / Industrial Tribunals under the said Act insofar as issue of grant of relief comes up for consideration after the termination is held to be illegal and unjustified. The entire judgment proceeds to discuss this aspect and in that context, the Supreme Court clarified that even when the termination is held to be illegal reinstatement does not follow as a matter of routine and would dependent upon various other circumstances; likewise even when reinstatement is directed, it is not necessary that that same would be coupled with continuity of service or consequential benefit or award of back wages and that would again depend upon various other factors which are explained by the Apex Court in the said judgment in detail. Merely because the expression ''consequential benefit' is used separately from 'back wages' would not mean that 'consequential benefit' would not include 'back wages'. Such an inference cannot be drawn from this judgment which neither discusses nor explains what the term 'consequential' would mean nor was there any case. On the other hand, as mentioned above, we have a direct judgment of the Supreme Court touching this aspect in the case of Commissioner, Karnataka Housing Board (supra). We accordingly hold that the petitioners are entitle entitled to arrears of pay with effect from 28.11.1986 when their services were regularized. The impugned order of the Tribunal is set aside and the respondents are directed to calculate the arrears of salary payable for the intervening period and pay the same to the petitioners within eight weeks."
3. Opposing the grant of relief, learned counsel for the respondents relied upon the averments contained in the counter affidavit and submitted that the present Original Application itself is time barred and the applicant applicant is raising a stale claim of the year 2007 in the year 2018. This dis-entitles dis entitles him to invoke the jurisdiction of the Tribunal under Section 19 of the Appellate Tribunals Act, 1985.
3.1 It has been further averred by the learned counsel for the respondents that the applicant was initially appointed to the post respondents Page 6 of 17 Item No.51 (Court - 3) O.A. No.200/2018 of LDC in the erstwhile MCD on regular basis after passing the Limited Departmental Competitive Examination on 08.11.1988 under the UR Category. He was allotted Seniority No.1579 in the Seniority List List of LDC. As per the RRs to the post of UDC, the method of Recruitment is 75% by promotion on Seniority Seniority-cum-
fitness and 25% by Limited Departmental Competitive Examination. For the purpose of regular promotion to the post of UDC under 75% promotion quota, a DPC was convened on 08.10.2007 wherein the candidature of the applicant was also considered for regular promotion along with his juniors. However, he was not given regular promotion to the post of UDC as his ACRs during the period 2002-2007 2002 2007 were not ava available, there was an order for removal from service issued against him and an RDA No.3/125/2005 was shown pending and a Charge Sheet was issued to him.
him 3.2 Thereafter, the applicant was again considered for regular promotion to the post of UDC in the DPC held on 10.03.2016 and as per the recommendations of the said DPC, he was promoted to the post of UDC vide CED Office Order No F.13(346)/CED/DA F.13(346)/CED/DA-
IV/NDMC/2016/574 dated ated 14.03.2016.
3.3 It is further submitted by the respondents' counsel that the answering respondent has adopted the grant of Non Functional Selection Grade (NFSG) on the analogy of the Central Government. As per the guidelines contained therein, the NFSG is Page 7 of 17 Item No.51 (Court - 3) O.A. No.200/2018 to be given to the 30% senior most UDCs after they complete 5 years of regular service. However, since the applicant was promoted to the post of UDC w.e.f. 10.03.2016, he has not been given NFSG.
3.4 In support of his contentions, the the learned counsel for the respondents relied upon the decision rendered by the Hon'ble Supreme Court in the matter m of P.S. Sadashivaway vs. State of Tamil Nadu. The relevant portion of the same is reproduced herein below:
"23(2). A Person aggrieved by and order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion........... But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extra ordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand tand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters."
3.5 Learned counsel for the respondents further submitted that a Learned DPC for regular promotion to the post of UDC was convened on 08.10.2007 8.10.2007 in which the candidature of the applicant was also considered along with his juniors. However, he was not assessed fit for promotion to the post of UDC.
UDC Further, it is submitted that the applicant has not been given NFSG as he was promoted to the post of UDC w.e.f. 10.03.2016, whereas NFSG is given to the UDC after completing the 5 years regular service.
4. We have gone through the records of the case and heard the respective counsel at length.
Page 8 of 17 Item No.51 (Court - 3) O.A. No.200/2018
5. ANALYSIS
5.1 In Om Pal Singh vs Disciplinary Authority decided on 14 January, 2020 ( AIR 2020 SUPREME COURT 1920, AIRONLINE 2020 SC 36), the Hon'ble Apex Court observed as under :-
"11.
11. In J.K. Synthetics Ltd. v. K.P. Agrawal & Anr. , this Court dealt with the issue regarding the entitlement of a delinquent to claim continuity of service and consequential benefits in all cases of reinstatement as follows:
"17. There is also a misconception that whenever reinstatement ment is directed, 'continuity of service' and 'consequential benefits' should follow, as a matter of course. The disastrous effect of granting several promotions as a 'consequential benefit' to a person who has not worked for 10 to 15 years and who does nonot have the benefit of necessary experience for discharging the 6 (2007) 2 SCC 433 higher duties and functions of promotional posts, is seldom visualized while granting consequential benefits automatically. Whenever courts or Tribunals direct reinstatement,, they should apply their judicial mind to the facts and circumstances to decide whether 'continuity of service' and/or 'consequential benefits' should also be directed. We may in this behalf refer to the decisions of this Court in A.P.S.R.T.C. v. S. Narasa Goud [2003 (2) 2) SCC 212], A.P.S.R.T.C. v. Abdul Kareem [2005 (6) 6) SCC 36] and R.S.R.T.C. v. Shyam Bihari Lal Gupta [2005 (7) SCC 406]."
5.2 We observe that the issue involved in the present Original Application is no longer res integra in light of decision rendered by the Apex Court in State Of Haryana & Ors. Etc vs O.P. Gupta Etc decided on 12 January, 1996 ( reported in JT 1996 (3), 141 1996 SCALE (1)602, AIR 1996 SUPREME COURT 2936), wherein it has been held as under:-
under:
"Having Having regard to the above contentions, the question arises: whether the respondents are entitled to the arrears of salary? It is Page 9 of 17 Item No.51 (Court - 3) O.A. No.200/2018 seen that their entitlement to work arises only when they are promoted in accordance with the Rules. Preparation of the seniority list under Rule 9 is a condition precedent for consideration and then to pass an order of promotion and posting to follow. Until that exercise is done, the respondents cannot be posted in the promotional posts. Therefore, their contention that though they were willing to work, they were not given the work after posting them in promotional posts has no legal foundation. The rival parties had agitated their right to seniority. Ultimately, this Court had directed the appellant to prepare the seniority list strictly in accordance with Rule 9 untrammeled by any other inconsistent observation of the Court or the instructions issued in contravention thereof. Since the order had become final in 1990, when the appeal had been disposed of by the Court by the above directions, the State in compliance thereof prepared the seniority list in accordance with the Rules and those directions and promotions were given to all eligible persons and postings were were made accordingly on December 1, 1992. In the interregnum some had retired. As stated earlier, though the deemed date has been given as 1.1.1983, the respondents cannot legitimately claim to have worked in those posts for claiming arrears and, as a fact, they did not work even on ad hoc basis.
This Court in Paluru Ramakrishnaiah & Ors. vs. Union of India & Anr. [(1989) 2 SCR 92 at page 109] considered the direction issued by the High Court and upheld that there has to be "no pay for no work", i.e., a person will not be entitled to any pay and allowance during the period for which he did not perform the duties of higher post, although after due consideration, he was given a proper place in the gradation list list having been deemed to be promoted to the higher post with effect from the date his junior was promoted. He will be entitled only to step up the scale of pay retrospectively from the deemed date but is not entitled to the payment of arrears of the salary. The same ratio was reiterated in Virender Kumar vs. Avinash Chandra Chadha [(1990) 3 SCC 482] in paragraph 16. It is true, as pointed out by Sri Hooda, that in Union of India vs. K.V. Jankiraman [AIR 1991 SC 2010] this Court had held that where the incumbent was willing to work but was denied the opportunity to work for no fault of him, he is entitled to the payment of arrears of salary. That is a case where the respondent was kept under suspension during departmental enquiry and sealed cover procedure was adopted because of the pendency of the criminal case. When the criminal case ended in his favour and departmental proceedings were held to be invalid, this Court held that he was entitled to the arrears of salary. That ratio has no application to the cases where the claims for promotion are to be considered in accordance with the rules and the promotions are to be made pursuant thereto."
5.3 In Appeal (civil) 7953 of 2004 State of Kerala & Ors.
VS E.K. Bhaskaran Pillai decided on 17/04/2007 17/04/2007, the Apex Court held as under :-
:Page 10 of 17
Item No.51 (Court - 3) O.A. No.200/2018 "Sometimes in the matter when the person is superseded and he has challenged the same before Court or Tribunal and he succeeds in that and direction is given for reconsideration of his case from the date persons junior to him were appointed, in that case the Court may grant sometime full benefits with retrospective effect and sometimes it may not. Particularly when the administration administration has wrongly denied his due then in that case he should be given full benefits including monetary benefit subject to there being any change in law or some other supervening factors. However, it is very difficult to set down any hard and fast rule. The principle 'no work no pay' cannot be accepted as a rule of thumb. There are exceptions where courts have granted monetary benefits also.
However, so far as present case is concerned, as per directions given by the Court, petitioner's case was considered considered and it was found that persons junior to him were appointed and he was wrongly denied. Therefore, the petitioner was promoted from retrospective effect i.e. 15.9.1961 but he was not paid the benefit of promotion in terms of arrears of salary. Therefore, T he approached the Court and learned Single Judge did not give him the monetary benefit of the promotional post from retrospective effect in terms of arrears of salary. In the review application, the benefit was given from the date he filed O.P. No. 585 of 1975 i.e. 15.6.1972. This appears to be reasonable. The petitioner did not approach the Court for the back wages from 15.9.1961 but he filed a petition dated 15.6.1972 and the Court granted the benefit from the date of filing of the petiti petition before the Court i.e.15.6.1972.The incumbent in the meanwhile has retired on 31.7.1980.Therefore, looking to the facts and circumstances of the case, the view taken by the High Court appears to be justified and there is no ground to interfere in it. The appeal is accordingly dismissed with no order as to costs."
5.4 The Apex Court in Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and others others, further analysed various other decisions on this issue, including J.K. Synthetics Ltd. Vs. K P Agarwal and Another and culled out the position of law as under:
"33. The propositions which can be culled out from the aforementioned judgments are:
i). In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
ii). The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of of misconduct, if any, found proved against the employee/workman, the financial condition of Page 11 of 17 Item No.51 (Court - 3) O.A. No.200/2018 the employer and similar other factors. XXX
iv). The cases in which the Labour Court/Industrial Tribunal exercises power Under Section 11- 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back proved, wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be be ample justification for award of full back wages.
v). The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court victimizing or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrong doings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.
vi) In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays.
Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustiinjustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the empl employer is in an advantageous position vis-à-vis vis vis the employee or workman.
He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with ccertain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra).
Page 12 of 17 Item No.51 (Court - 3) O.A. No.200/2018
vii) The observation made in J.K. Synthetics Ltd. v. K.P K.P.
Agrawal (supra) that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to herein above and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an judgment employee/workman."
5.5 The decisions in J.K. Synthetics (supra) and Deepali Gundu (supra) were considered in two decision of the Division Bench of the Hon'ble High Court of Delhi in Mahabir Prasad v. DTC, (2014) 144 DRJ 422 and Jagdish Chander v. DTC DTC, 2020 LLR 754, wherein in the facts of the said case (Mahabir Prasad v. DTC case) reinstatement was directed by the Labour Commissioner, with continuity of service but without back wages. Thereaf Thereafter, DTC reinstated the workman without any back wages and without any benefits on notional pay fixation, promotion, ACP, increments and withheld pension and terminal benefits also. Challenging the said decisions, the Workman claimed that since "continuity of service"
decisions, was directed, he would be entitled to pension and other terminal benefits. In this case, the Division Bench of the Hon'ble High Court observe as under:
observed "20. The above discussion reveals that there appeared to be no standard pattern of directing directing how a reinstated employee is to be given the benefit after reinstatement. In Deepali Gundu Surwase(supra), for the first time, the restitutionary principle underlying reinstatement and other benefits was spelt out and a semblance of uniformity was attempted.
attempted. If that is to be kept in mind, what is apparent in this case is that the petitioner had to battle for over a decade and a half to secure justice. The Labour Court held that that the enquiry against him illegal; went into the material an found that the the charge of misconduct was baseless. It consequently directed reinstatement without back wages. Whilst the denial of back wages is not in question, the Award directed continuity of service. If DTC's contention were to be accepted, the petitioner would st stand doubly penalized for the delay in securing justice, plainly for no fault of his. The denial of 15 years' salary would result in his denial of pension, or at least a vastly diminished pension, gratuity and other terminal benefits. If these benefits are denied, the direction to grant continuity of service would be a hollow relief. Furthermore, to restore him in the pay scale at the stage of his termination would be to freeze him in a pay scale that is no longer existent, or at least Page 13 of 17 Item No.51 (Court - 3) O.A. No.200/2018 unrecognizable. It is pertinent that a withholding of 2 increments for two years, with cumulative effect has been held to be a major penalty (imposable only after an enquiry) since the increments "would not be counted in his time-scale time scale of pay" in perpetuity. In other words, the clock would be set back in terms of his earning a higher scale of pay, by two scales. See Kulwant Singh v. State of Punjab 1991 Supp (1) SCC 504. Keeping this in mind, if the petitioner were to be restored in the pay scale at the stage of his termination, it would amount to withholding several increments, and thus be equivalent to imposing a compounded major penalty. 21. Consequently, it is held that the direction to grant continuity meant that the petitioner had to be given notional increments for the duration duration he was out of employment, in the grade and the equivalent grade which replaced it later, till he reached the end of the pay scale. Since there is no direction to give consequential benefits, the petitioner cannot claim promotion as a matter of right; it would have to be in accordance with the rules. ACP benefits however, should be given. The notional pay fixation would also mean that he would be entitled to reckon the period between his removal and reinstatement as having been in employment for pension, pension, gratuity, and contributions to provident fund etc. This Court directs the DTC to issue an order extending these benefits to the petitioner for the 15 year period between his dismissal in 1995 and his eventual reinstatement in 2011, within eight weeks fr from today. The writ petition is allowed in these terms; there shall be no order as to costs."
5.6 In the case of Jagdish Chander (supra) (supra), reinstatement was directed with full back wages. Upon challenge, the Hon'ble High Court in an LPA had modified this order to deny back wages, but DTC had agreed not to challenge reinstatement, to grant the benefit of continuity of service and to compute pension accordingly. Thereafter, the Workman was not given ACP benefits and var various other benefits. Since the Division Bench in LPA had recorded that it was upholding the award on the basis of DTC's assurance that continuity of service would be given, the Court directed the Workman's pay scale to be fixed by notionally granting him increments ncrements and benefits under the ACP scheme, held as under ::-
"28. Therefore, what becomes clear from a perusal of the judgment in Mahabir Prasad (supra) is that reinstatement with continuity of service is the norm. While in Mahabir Prasad (supra) the Labour Court had ordered reinstatement with continuity but without back wages, in the present case the Labour Court ordered both reinstatement and full back wages. The DB of this Court modified the Award only to the extent of denying the Petitioner full back wages but acknowledged that the intent of the Award was to grant grant the Petitioner continuity of service. This is plain from the Page 14 of 17 Item No.51 (Court - 3) O.A. No.200/2018 operative portion of the order of the DB partly allowing DTC's LPA. It explained the rationale for denial of full back wages as follows: "In our considered opinion, when the corporation has agr agreed not to challenge the order of reinstatement, extend the benefit of continuity of service and compute the pension on the said factual backdrop. The CAT, in the impugned order, erred in denying the Petitioner the benefit of continuity in service upon reinstatement reinstatement and in applying the law as explained in Mahabir Prasad (supra) that while this would not entitle him to promotions, the Petitioner would upon reinstatement be entitled to the increments on the pay scale he was drawing at the time of termination of his services and further that for the purpose of gratuity and pension he would be treated as having been in service throughout.
30. The CAT erred in referring to the decision of the Supreme Court in S. Narsagoud (supra) which has been squarely dealt with and rejected by a subsequent decision of the Supreme Court in Deepali Gundu Surwase (supra). In fact, the CAT failed to take notice of the aforesaid judgments in spite of the Petitioner raising this specific point in his RA No. 39/2016. 31.
For the aforementioned aforementioned reasons, the impugned orders of the CAT are hereby set aside. The Respondent/DTC is directed to: i. Fix the Petitioner's pay scale by notionally granting him the increments and benefits under the ACP Scheme to which he now stands entitled."
5.7 Applying the above ratio laid down by decisions as stated, we Applying observe that the case of the applicant falls within the four corners of the decision rendered in Deepali Gundu Surwase (supra).
5.8 We find that the he applicant made several representations to the concerned Municipal Corporation. However, no reply to the said representations has ha been received till date. Even the applicant sent a Legal Notice dated 20.11.2017 through his counsel but no response to the said Legal Notice has been received till date and as such issue of making delay and laches cannot come into the way of the applicant for being granted the benefit on notional basis. It is also submitted that a DPC for regular promotion to the post of UDC was convened on 08.10.2007.
5.9 We also find that in the DPC meeting, the candidature of the applicant was also considered along with his juniors. However, he Page 15 of 17 Item No.51 (Court - 3) O.A. No.200/2018 was not assessed fit for promotion to the post of UDC as his ACRs during the period 2002-2007 2002 2007 were not available available. Further, it is submitted that the the applicant has not been given NFSG as he was promoted to the post of UDC w.e.f. 10.03.2016, whereas, NFSG is given to the UDC after completing the 5 years regular service.
6. We find that once the applicant was reinstated with directi directions for continuity in service, the applicant's 's case ought to have been considered by conducting Review DPC as it was found that person junior to him were appointed and he was wrongly denied benefit of continuity in service.
service Therefore, the petitioner ought to be accorded the benefits on notional basis.
Accordingly, we are of the view that that, for no fault on the part of applicant, his genuine claim cannot be denied.
7. CONCLUSION 7.1 In view of the above detailed ana analysis, we allow the present OA and set set aside the impugned Office Order No. F.13(346)/CED/DA IV/NDMC/2016/574 dated 14.03.2016 to the F.13(346)/CED/DA-
extent it fails to promote the applicant to the post of Upper Division Clerk (UDC) retrospectively w.e.f. 16.10.2007 and direct the respondents espondents to promote the applicant to the post of Upper Division Clerk (UDC) w.e.f 16.10.2007 with all consequential benefits (monetary as well as nonmonetary), including grant of Non Functional Selection Grade (NFSG) w.e.f. 14.02.2014.
Page 16 of 17 Item No.51 (Court - 3) O.A. No.200/2018
7.2 Further, we direct
d the respondents
pondents to promote the applicant to
the post of Head Clerk (now nomenclated as Assistant Section Officer) w.e.f. 29.12.2015 with all consequential benefits benefits. All pending applications, if any, any, shall also stand disposed of. No costs.
(Dr. Anand S Khati) (Manish Garg)
Member (A) Member (J)
/sb/
Page 17 of 17