Central Administrative Tribunal - Delhi
Shiv Charan vs Govt. Of Nctd on 8 March, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No. 2008/2014
MA 3172/2014
New Delhi this the 8th day of March, 2016
Hon'ble Mr. A.K.Bhardwaj, Member (J)
Hon'ble Mr. V.N.Gaur, Member (A)
1. Shiv Charan s/o Lt.Sh.Ved Parkash
R/o Flat No.15, Bank Apartments,
Sector-4, Plot No. 22, Dwarka,
New Delhi and working as Accounts Officer
(Naj.Zone).
2. Vijay Sharma S/o SH.K.D.Sharma,
R/o F-2, New Municipal Double Storey
Market, Lodhi Colony, New Delhi-110003
and working as Accounts Officer (Health
and Planning), South Delhi Municipal
Corporation. ... Applicants
(By Advocate Mr.Satya Mitra Garg)
VERSUS
1. Director Local Bodies,
Govt. of NCT of Delhi,
9th Level, C-Wing, Delhi Sachivalaya,
Delhi.
2. Commissioner,
South Delhi Municipal Corporation,
Dr. S.P.M.Civic Centre, 9th Floor,
Minto Road, New Delhi-110002
3. Commissioner
North Delhi Municipal Corporation
Dr. S.P.M.Civic Centre, 9th Floor,
Minto Road, New Delhi-110002
4. Shri S.K.Sachdeva,
S/o Late Sh. K.L.Sachdeva,
R/o 2/214 (GF)
Old Rajinder Nagar, New Delhi
Working as A.O, 12th Floor,
Civic Centre, Minto Road, New Delhi.
5. Ms. Jyoti Chauhan
W/o Sh.Ashok Kumar Chauhan,
R/o B-21A (GF), M.P.Enclave,
Pitampura, Delhi-110034
2 OA2008/2014
Working as A.O,
14th Floor, Civic Centre,
Minto Road, New Delhi.
6. Shri Girish Wadhwa,
S/o Sh L.R.Wadhwa
R/o B-1/10, Mianwali Nagar,
New Delhi-110087
Working as A.O
Hindu Rao Hospital, Rajpura Road,
Delhi.
7. Mrs. Mamta,
W/o Shri Sumeer Kakkar,
R/o 13/7, Railway Colony,
Kishanganj, Delhi-110007
Working as AO,F& G, NDMC
Ist Floor, Civic Centre, Minto Road,
Delhi.-110002 ... Respondents
( By Advocates: Ms. Rashmi Chopra with Ms Neetu Mishra
for Respondent No.1, Mrs Anupama Bansal for Respondent
No.2, Shri R.N.Singh for respondent No.3 and Shri A.S.Singh
for respondents 4 to 7)
ORDER
Hon'ble Mr.A.K.Bhardwaj, Member (J) :
At the time of its trifurcation, the applicants herein were employed as Accountants in the Municipal Corporation of Delhi (MCD). In the final seniority list of Accountants dated 21.02.2012, they were placed at serial number 56 (Vijay Sharma) and 68 (Shiv Charan) respectively. The trifurcation of the Corporation could take place w.e.f 13.01.2012 and three different Corporation viz., North Delhi Municipal Corporation (NDMC), East Delhi Municipal Corporation (EDMC) and South Delhi Municipal Corporation (SDMC) emerged. By Circular No. DCA/F&G/ SMC/2013/163 dated 09.09.2013, a final seniority list of Accounts Officers was circulated by North Delhi Municipal Corporation. Being aggrieved by the act of 3 OA2008/2014 respondents of not separating the seniority list of Accounts cadre of South Delhi Municipal Corporation, the applicants filed the present OA, praying therein:-
''(a) call for the records of the case;
(b) pass an order directing the respondents to trifurcate the seniority list of Accounts cadre of erstwhile Corporation into the seniority lists for respective Corporations;
(c) pass orders directing respondents to make promotion in the Accounts cadre of SDMC from amongst the employees/officers allocated in the feeder cadres of SDMC only;
(d) declare that all inter Corporation transfers in the Accounts cadre after 02.05.2012 are illegal;
(e) pass such other order(s) which this Hon'ble Tribunal deems fit and proper in the facts and circumstances of the case.''
2. Mr.S.M.Garg, learned counsel for the applicants espoused:-
. After 07.05.2012, the distribution and allocation of the employees working in various wards, zonal areas and at Headquarter level of MCD amongst NDMC, SDMC and EDMC is absolute and final in terms of Section 90A of the Delhi Municipal Act, 1957 ( hereinafter referred to as 'DMC Act, 1957). . On distribution and allocation of various officers and employees to the three Corporations, as per the mandate of Section 90A and 92 of the DMC Act, 1957, the officers and employees are required to be dealt with only by the Commissioner of the 4 OA2008/2014 respective Corporation in all the matters pertaining to their service.
. The three Corporations should maintain the seniority list of their own employees in various grade in different cadres separately and further promotion should take place within the respective Corporation.
. The final seniority list of Accounts Officer dated 9.09.2013 issued by NDMC is contrary to Section 90A and 92 of DMC Act, 1957.
. The continuance transfer of the employees from one Corporation to another, jeopardize the future prospects of the employees so transferred.
. The promotion orders of the employees of SDMC issued by NDMC is violative of Section 90A and 92 of DMC Act, 1957.
3. In the detailed counter reply filed on behalf of NDMC it has espoused the following preliminary objections:-
. As per the decision of Government of NCT of Delhi, certain subjects are being maintained centrally for all the three Corporations under the control of Director of Local Bodies, i.e. Toll Tax, Information Technology, Printing, Stationery and Election 5 OA2008/2014 Office. The staff/officers are part of all the Corporations and their common seniority is still maintained and promotions are being made accordingly.
. The applicants have no locus standi to challenge the seniority list in all the grades of Accounts cadre.
. The applicants have sought restraint against the official respondents from making promotion in Accounts cadre without even disclosing the grade to which promotion is sought to be stayed.
On merits, the Corporation (NDMC) has put forth that:-
(i) To comply with the provision of Section 90 (A) of DMC Act, the Govt. of NCT of Delhi through its Cabinet decision dated 16.03.2012 approved that the existing staff may be distributed among three Corporations as per their option, thus the options for change of Corporation were invited online from all the employees through their respective Bio Metric ID and the option once excised by the employee was treated as irreversible.
(ii) Even after trifurcation the promotions in respect of employees of three Corporations in different cadres are being made by the North Delhi Municipal Corporation on the basis of common 6 OA2008/2014 seniority and Group 'A' employee are still transferable to any of the Corporations.
(iii) To run all the three Corporations, meetings with the Principal Secretary, Director of Local Bodies and all the Commissioners are being held from time to time.
(iv) The Cabinet vide its decision no. 1874 dated 16.03.2012 approved setting up a joint cadre for the Group 'A' officers and making Director, Local Bodies as its Cadre Controlling Authority, thus a Committee was set up to suggest an administrative mechanism for governing the matters like promotion, maintenance of inter-se-seniority and the transfer of officers from one Municipal Corporation to another and also to make suitable recommendations for consideration of the Government. The Committee discussed and agreed that consequent upon trifurcation of the MCD, the matters relating to promotion in Group-A cadre, maintenance of a common seniority list and transfer from one Corporation to another as well as such administrative matters cannot be handled by one Corporation and promotion to Group 'A' services cannot be resorted to in total disregard to the existing seniority list. Nevertheless, in appreciation 7 OA2008/2014 of the difficulty, a decision could be taken that the promotions would be made by the NDMC.
(v). From the combined seniority list of Accounts Officer, promotion to the post of Deputy Controller of Accounts has been made only upto serial no 27 in general category and serial no. 37 in SC/ST category and the applicants herein who was at serial no 58 and 66 of the seniority list cannot have any grievance against the promotion of their seniors.
(vi) There are various judicial orders passed by various Courts including Hon'ble High Court which need to be implemented with reference to a common seniority list. The Fourth Coordination meeting of Director of Local Bodies with the Commissioners of the MCD was held on 02.06.2012 on the subject of filling up the post of Additional Commissioner, Dy. Commissioners and HODs by promotion or by transfer on deputation in which a decision could be taken that all works related to the direct recruitment would be looked after by SDMC, the subject promotion would be looked after by the NDMC and the matter related to filling up the post by transfer on deputation should be handled by each Corporation individually except in respect of the 8 OA2008/2014 post of CA-cum FA and Assessor & Collector which was left to the SDMC.
(vii). In the Cabinet decision no. 1874 dated 16,03,2012 circulated vide No.F.3/2/2011-GAD/CN-1158-1169 dated 19.03.2012 a decision was taken that in respect of category B, C and D posts, individual Corporation would be the Cadre Controlling Authority and in respect of category-A posts, a Joint Cadre may be maintained under Joint Cadre Controlling Authority provided, it is permissible under the existing provisions of DMC Act as amended (in particular Section 89 and 92 of the Act). The issue has been referred to the Services and Law Department of GNCTD and is separately under examination.
4. The learned counsel for respondent No.1 made reference to various provisions of DMC Act and submitted that there are provisions contained in Section 98, 484 (A) (ii) and 482 of the DMC Act and Regulations issued thereunder and the services of the employee of the Corporations, need to be dealt with according to the provisions thereof. Certain private respondents who got themselves impleded later on filed their reply to oppose the OA.
5. Respondent No. 2 filed its separate reply through Mrs Anupama Bansal, Advocate. According to said respondent, as per Section 484- A of DMC Act, it is for Director of Local Bodies to discharge functions 9 OA2008/2014 enumerated in the Section and in terms of provisions of Section 90A of DMC Act, the SDMC has approved its own Establishment Schedule ( 2013-14). The respondent No.2 has already sent the proposal to respondent No.1 regarding the cadre trifurcation between three Corporations and preparation of separate seniority of the employees of Accounts cadre of SDMC as now all the three Corporations are separate entity and the employees of the erstwhile Corporation are now dealt with by the respective Corporations as per the amended provisions of the DMC Act. Para 4 (xii) of the reply read thus:-
"xii. That in response to the contents of the para, it is hereby submitted that since March 2013, the answering respondent has already sent the proposals to the respondent No.1 regarding the cadre trifurcation between three corporations and preparation of the separate seniority of the employees of Accounts cadre of the SDMC as now the all three corporations are separate entity and the employees of the erstwhile corporation are now the employees of the respective corporations as per the amended provisions of the DMC Act, but no reply/communication has been received till date from the respondent No.1. The true copies of the proposals sent to respondent No.1 are annexed herewith as Annex-R.4"
Ex-facie, the respondent No.2 has supported the cause of the applicants.
6. We heard counsel for parties and perused the record. Indubitably, the applicants herein had joined the services in the MCD and in the unified seniority list of the Accounts Officer, their seniority position is 58 and 66. The individuals promoted as Deputy Controller of Accounts even from reserved category are much seniors to them. None of the legitimate expectation of the applicants far less any of 10 OA2008/2014 their individual legal rights have been infringed. In the OA filed by them they have espoused the general issue. In the counter reply filed on behalf of respondent no. 1, it has been categorically stated that the issue regarding application of Section 89 and 92 by DMC Act, 1957 is under examination. Para 17 of the reply read thus:-
"17. That in the Cabinet Decision No.1874 dated 16.03.2012 circulated vide No.F.3/2/2011-GADF/CN- 1158-1169 dated 19/03/2012 it was decided as '' it has been further proposed that in respect of category-B and Category-C (Group & Group D) posts, individual Corporation will be the Cadre Controlling Authority and in respect of Category-A posts, a Joint Cadre may be maintained under a Joint Cadre Controlling Authority provided, it is permissible under the existing provisions of the DMC Act ( as amended in particular Section 89 and 92 of the Act). This issue has been referred to the Services and Law Department of GNCTD and is separately under examination''. The matter is still under examination and has not been finalized."
7. In view of the stand taken by respondents in para 17 of the reply, the OA is disposed of with direction to respondents to take a final view regarding application of Section 89 of DMC Act, as expeditiously as possible, preferably within six months. While taking such decision, they should give due regard to the stand taken by respondent No.1 and 2 in their counter reply. The decision should be taken by a Committee comprising of Director of Local Bodies and Commissioner of all the three Corporations as well as such other members as decided by the Lt. Governor. Nevertheless, in view of the order passed by this Tribunal on 12.08.2015, the new mechanism, if 11 OA2008/2014 any, introduced on the basis of legal advice referred to in para 17 and the decision of the Committee would not nullify the past promotions. The OA stands disposed of. No costs.
(V.N.Gaur) (A.K.Bhardwaj) Member (A) Member (J) 'sk'