Central Administrative Tribunal - Delhi
Nathi Ram Chaudhary vs (A) North Delhi Municipal Corporation on 5 December, 2014
Central Administrative Tribunal
Principal Bench
New Delhi
T.A.No.1028/2009
Order Reserved on: 11.09.2014
Order pronounced on 05.12.2014
Honble Shri V. Ajay Kumar, Member (J)
Honble Shri P. K. Basu, Member (A)
1. Nathi Ram Chaudhary,
S/o Shri Gugan Singh,
Aged 55 years,
U.D.C., Working under MCD,
Town Hall, Delhi-110006.
House No.560, Village Rangpuri,
New Delhi-110037.
2. Jai Chand,
S/o Shri Ram Swaroop,
Aged 43 years,
U.D.C., Working under MCD,
Town Hall, Delhi-110006.
House No. 1863, Kotla Mubarakpur,
New Delhi-110003.
3. Ramesh Kumar,
S/o Shri R.R. Singh,
Aged 47 years,
U.D.C., Working under MCD,
Town Hall, Delhi-110006.
House No.AG-54/D, Vikas Puri,
New Delhi-110018.
4. Om Prakash Tanwar,
S/o Shri Nathi Singh,
Aged 52 years,
U.D.C., Working under MCD,
Town Hall, Delhi-110006.
House No.628, Sector-8,
Faridabad, Haryana.
5. Smt. Nirmal Hans,
W/o Shri Sudershan Hans,
Aged 52 years,
U.D.C., AC (Engg.),
18-A, Sujan Singh Park,
Sonepat, Haryana.
6. Vinod Pande,
S/o Late Shri B.D. Pande,
Aged 54 years,
U.D.C., CED Town Hall,
Pocket-B, SFS,
DDA Flat No.7, Sukhdev Vihar,
New Delhi-110025.
7. Jagdish Chand,
S/o Late shri Jandu Ram,
Aged 47 years,
U.D.C., Addl. MHO (M&CW) Town Hall,
C-87, Pandav Nagar,
Delhi-110092.
8. Hori Ram,
S/o Late Shri Hardwari Ram,
Aged 55 years,
U.D.C., ACA Central Zone, Lajpat Nagar.
3/206, Dakshin Puri Extn.,
New Delhi-110062.
9. Jeet Kumar,
S/o Shri Balandu Ram,
Aged 48 years,
U.D.C., EE-IV Defence Colony,
New Delhi-110024.
C-6, MCD Flat,
New Delhi-110017.
10. Nanna Percy,
S/o Late Shri E. Thomas,
Aged 53 years,
U.D.C., CED Town Hall,
342-A, Second Floor,
Hari Nagar Ashram,
New Delhi-110014.
11. Smt. Poonam,
W/o Shri R. Chandel,
Aged 51 years,
U.D.C., GPF Kaccha Bagh,
Town Hall, Delhi-110006.
C-58/14, Nirupam Vatika,
Sector-62, Noida (U.P.).
12. Mange Lal,
S/o Shrij Gyarsi Lal,
Aged 52 years,
U.D.C., GPF Kaccha Bagh, Town Hall .
C-356, Nanakchand Basti,
Kotla Mubarakpur,
New Delhi-110003.
13. Satbir Singh,
S/o Shri Rati Ram,
Aged 53 years,
U.D.C., GPF Kaccha Bagh, Town Hall.
V & PF Dulehra, The. Bahadurgarh,
Distt. Jhajjar, Haryana.
14. Smt. Neelam Lowe,
W/o Shri Umakant,
Aged 52 years,
U.D.C., Addl. Commissioner, Headquarter,
Town Hall.
C-3/71, Keshav Puram, Delhi.
15. Smt. Chanderkanta,
W/o Shri R.K. Goel,
Aged 52 years,
U.D.C., Land & Estate Deptt., Town Hall.
3289, Aryapura, Subjimandi,
Delhi-110007.
16. Smt. Savita Munjal,
W/o Shri Rajeev Munjal,
Aged 52 years,
U.D.C., Land & Estate Deptt.,
Town Hall, Delhi.
D-372, Anand Vihar, Delhi.
17. Yudhvir Singh,
S/o shri Kishan Chand,
Aged 53 years,
U.D.C. , Executive Engg.XII,
MCD, Delhi.
House No.20, Gurunanak Marg,
Keval Park, Delhi-110033.
18. Smt. Chetna Chanana,
W/o Shri J.P. Chanana,
Aged 51 years,
U.D.C. , E-VII, Engg. Deptt.,
MCD, Delhi.
WZ-906 A, Rani Bagh,
Delhi-110034.
19. Anil Kumar Goel,
S/o Shri Hari Mohan Goel,
Aged 53 years,
U.D.C., Vigilance Deptt., Civil Line Zone,
16, Rajpur Road, Delhi.
20. Braham Vir Singh,
S/o Shri Jagiram,
Aged 54 years,
U.D.C., Care Taker Deptt.,
Town Hall, MCD, Delhi.
31, Amla Enclave,
Sec-9, Rohini.
21. Khazan Singh,
S/o Shri Dharam Singh,
Aged 53 years,
U.D.C., Hackney Carriage Deptt.,
MCD, Delhi.
D-77, MCD Colony, Azadpur.
22. Shailender Jain,
S/o Shir P.S. Jain,
Aged 53 years,
U.D.C., A & C Deptt.,
MCD, Delhi.
C/o D-77, MCD Colony, Azadpur.
23. Mahender Mumar Bhardwaj,
S/o Shri Badri Prasad Bhardwaj,
U.D.C., Education Headquarter,
Kashmere Gate, Delhi-110006.
358, Arjun Gali, Daribapan,
Paharganj, New Delhi-110055.
24. Ms. Mridula Sarpal,
D/o Shri D.C. Sarpal,
Aged 55 years,
U.D.C., P & M Deptt.,
Town Hall, Delhi.
C-4/4, Yamuna Vihar,
Delhi-110053. .. Applicants
(By Advocate : Shri Raman Duggal with Shri S.M. Arif)
Versus
1(a) North Delhi Municipal Corporation,
Thru Commissioner,
Civic Centre, J.L. Nehru Marg,
New Delhi.
1(b) East Delhi Municipal Corporation,
Thru Commissioner,
Udyog Bhawan,
Patparganj Industrial Area,
New Delhi-110092.
1(c) South Delhi Municipal Corporation,
Thru Commissioner,
Civic Centre, J.L. Nehru Marg,
New Delhi.
2. Smt. Santosh Kumari
3. Valayudhan E.R.
4. Hari Prasad P.D.
5. Sunil Srivastava
6. Sateesh B. Pillai
7. Rahendran T.K.
8. Balbinder Singh
9. Hareendra Nath R.
10. Babu Kurian
11. Ganesh K. Iyer
12. K.Y.V.V. Subba Rao
13. N.K. Kaushik
14. Raveendra Nath K.
15. Dinesh Kumar Pathak
16. Sushil Kumar Sachdeva
17. Sunil Sabiki
18. Prema Rajan N.
19. A. Sabastian
20. Bhagat Singh
21. Lekh Raj
22. Gopi Nathan T.K.
23. B.P. Sudhakar
24. Shailesh Kumar Sharma
25. K.A. Anto
26. Hemant Kumar
27. Susheel Kumar Sharma
28. Susheel Chand Rastogi
29. Virender Gulati
30. Mukund Khanta
31. Khazan Chand Bhardwaj
32. Ram Bahadur Puri
33. P.K. Dhyani
34. Ashok Kumar Verma
35. Ajay Kumar Gupta
36. Laxman Singh Negi
37. Nirdesh Kumar
38. Anant Singh Rana
39. S.S. Nazeer Jain
40. Mukesh Kumar Aggarwal
41. Ravi Bhushan Prashad
42. Anil Kumar
43. Pratap Singh
44. Rekha Ramela
45. Jeewan Singh
46. Rajesh Kumar Madaan
47. Yudhister Lal
48. Rajinder Singh Rawat
49. Harish Chandra Upreti
50. Shiv Kumar S.
51. Smt. Rekha Sharma
52. Smt. Geeta Daisy Samuel
53. Pushpi Lal M.G.
54. Jawahar Lal Kathuria
55. Smt. Suman Narula
56. Parmanand
57. Kulwant Singh
58. Pradeep Kumar Sharma
59. Hari Dutt Bhardwaj
60. Sanjay Gupta
61. Naresh Tanwar
62. Pradeep Kumar Mitra
63. Parmod Kumar Tyagi
64. Rakesh Rawat
65. Mohd. Zaki Anwar
66. Kawal Kapoor
67. Ms. Jyoti Singh
68. Bishwa Jeet Roy
69. Ravi Goyal
70. Smt. Monalisa Banerjee
71. Rajesh Kumar Asija
72. Nand Kishore Singh
73. Banarsi Dass
74. Devender Prakash Sharma
75. Hemand Kumar
76. Devkinandan Kand Pal
77. Gorakh Nath
78. Smt. Swaran Kumari
79. Smt. Chitra
80. Arjun Bhardwaj
81. Ashok Kumar
82. Sanjay Sharma
83. Ms. Sushma Rani
84. Kanhiya Lal Kaushik
85. Vinod Kumar
86. Jitender Kumar
87. Rajesh Kumar
88. Ms. Latha Mani S.K.
89. Krishan Kumar R.
90. Manoj Kumar Dhyani
91. Smt. Anju Bhutani
92. Chander Mohan Sharma
93. Smt. Sheeba S. Nair
94. Dinesh Sharma
95. Ms. M. Parvahty Kutty
96. Pritpal Singh
97. Smt. Manju Tejwani
98. Sanjay Kumar
99. Sushil Kumar Sharma
100. Pawan Jolly
101. Ashok Kumar Gupta
102. Rakesh Kumar
103. Feroz Khan
104. Karan Singh
105. Gauri Shankar
106. Piyush Bajpai
107. Smt. Sunita Yadav
108. Smt. Meena Mathur
109. Rajesh Dogra
110. Rakesh Kumar
111. Smt. Suma Ravindram
112. Sobastian P.M.
113. Smt. Neeta Bhatnagar
114. Jagdish Mitter Dum
115. Prem Chand Sharma
116. Rajesh Kumar
117. Vijay Kumar
118. K. Shri Ram
119. Surender Singh
120. Chander Kakkar
121. T.K. Suresh
122. Smt. Poonam Gulati
123. A. Kartikeyan
124. Vineet Kumar Bagai
125. G. Ramesh
126. Lalit Kumar Gupta
127. Sanjay Chahuan
128. Anil Kumar
129. Rajesh Kumar Jain
130. Nag Raj N.
131. Izhar Ahmed
132. Ram Charan
133. Smt. Mridu Sharma
134. Veer Singh
135. Bhagwan Dass Mehra
136. Smt. Rashmi Kapila
137. Dalip Singh
138. Smt. Krishna Devi
139. Naresh Kumar
140. Chander Pal
141. Bal Kishan
142. Ramesh Kumar
143. Vimal Kumar Biswas
144. Dharam Raj
145. Bhola Ram
146. Sushi Kumar
147. Ramesh Chander
148. Rajesh Kumar
149. Hari Ram
150. Harish
151. Rajinder Kumar
152. Rambir Singh
153. Braham Prakash Madhur
154. Dinesh Chander
155. Sunrise Singh
156. Kamal Kumar Burman
157. Rakesh Kumar Respondents
(By Advocate : Shri Rajinder Khatter for R-1(a) to R-1(c) (MCD)
and Shri M.K. Bhardwaj for some of the private
respondents)
O R D E R
By V. Ajay Kumar, Member (J):
Both the applicants and private respondents were originally appointed in the respondent-Municipal Corporation of Delhi, as Lower Division Clerks on various dates.
2. The Regulations made by the Municipal Corporation of Delhi under Section 91 of the Delhi Municipal Corporation Act, 1957 in connection with recruitment to the post of Upper Division Clerks, a category `C post, (Annexure P2) read as under:
NOTIFICATION No.F.9/3/80-LSG dated 4.6.1981: The regulations made by the Municipal Corporation of Delhi under Section 91 of the DMC Act, 1957 (16 of 1957) vide their decision No.391/GW/Corp dated 5.9.80 in connection with recruitment to the post of Upper Division Clerks in pursuance of the provisions of sub-Section 2 of Section 480 of the said Act, read with the Government of India, Ministry of Home Affairs Notification No.3/6/66-Delhi dated 19.10.1966 are hereby published in the Scheduled annexed.
SCHEDULE Recruitment Regulations for the post of Upper Division Clerks
1. Name of post Upper Division Clerks
2. No. of posts 6:3 [sic 653]
3. Classification Category `C
4. Scale of pay Rs.330-10-380-EB-12-
500-EB-15-560/
5. Whether selection Partly selection and partly post or non selection non-selection as indicated in column II.
6. Age limit for direct recruits N.A. A. Whether benefits of Added years of service admissible under the N.A. rule 30 of CCS Pension Rules, 1972.
7. Education and other qualification required for N.A. direct recruits
8. Whether age and educational qualifications prescribed for the direct recruits will apply in the case of promotees.
9. Period of probation if any 2 years
10. Method of recruitment, whether By promotion direct recruitment or by promotion or by deputation/ transfer and percentage of the vacancies to be filled by various methods.
11. In case of recruitment by promotion/deputation/transfer Promotion:
grades from which promotion filled by various methods.
(i) 75% on the basis of seniority-
cum-fitness from amongst LDCs with 8 years regular service in the grade
(ii) 25% by selection on the basis of a limited Departmental competitive examination from amongst Lower Division Clerks with 5 years regular service in the Grade.
12. If a DPC exists what is Group `C departmental its composition promotion committee.
13. Circumstances in which Consultation with the UPSC UPSC is to be consulted in necessary while amending making recruitment relaxing any of the regulations provisions of these regulations.
3. The applicants though became eligible for promotion to the post of UDC under 75% quota, i.e., on seniority cum fitness basis, during the years 1985-1990, as no DPC was convened, they were not promoted as UDCs, till 1995. However, Respondent-MCD promoted the applicants to the post of UDC, on ad hoc basis, vide Office Orders dated 27.07.1995, 15.11.1995 and 10.01.1996 (Annexure P3 Colly.), under 75% seniority cum fitness quota.
4. The private respondents were also promoted to the post of UDCs, on being successful in the Limited Departmental Competitive Examination (LDCE), i.e., under 25% Limited Departmental Competitive Examination quota, vide Office Order dated 20.05.1997 (Annexure P4), also on ad hoc basis only. However, the private respondents, who were initially promoted under 25% LDCE quota, on ad hoc basis, were treated to be promoted as regular UDCs retrospectively from various dates of the year 1997 vide Office Order dated 30.12.1997.
5. The Respondent-MCD, after conducting a Departmental Promotion Committee in the year 2003, for the applicants, under 75% seniority cum fitness quota, regularized them as UDCs, however, with immediate effect only, i.e., prospectively, vide Office Order dated 09.06.2013.
6. The Respondent-MCD after calling for objections on the provisional seniority list of UDCs, appointed on regular basis after 24.04.1992 to 31.12.2003, issued the final seniority list of UDCs vide impugned Circular dated 10.02.2005 (Annexure P8). Though the applicants were promoted as UDCs, on ad hoc basis, earlier in time to the private respondents, the Respondent-MCD in the impugned final seniority list of UDCs placed all the private respondents en-bloc above the applicants, basing on the dates of regular promotion.
7. Aggrieved by the impugned final seniority list dated 10.02.2005 (Annexure P8) the applicants filed Writ Petition (C) No.6659 of 2005 and batch, before the Honble High Court of Delhi, seeking the following reliefs:
(i) Issue a writ of Certiorari or any other appropriate writ or order or direction quashing the Final Seniority List dated 10.02.2005 (Annexure P/8) issued by the Respondent No.1-MCD.
(ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the Respondent No.1-MCD to give due seniority to the Petitioners from the date of their actual promotion to the post of UDC;
(iii) pass any other such order(s) as this Honble Court may deem fit and proper in the facts and circumstances of the present case;
(iv) Award the costs and exemplary damages in view of the exceptional circumstances of the present case. The Honble High Court, while issuing notices in the said Writ Petitions on 19.04.2005, ordered that all promotions will be subject to the outcome of the Writ Petitions.
8. In pursuance of the Notification issued by the Government of India on 01.12.2008, the said Writ Petitions were transferred to this Tribunal by the Honble High Court of Delhi vide its Order dated 06.03.2009, and one of the said Writ Petition is numbered as the present TA No.1028/2009. Before the High Court and after transfer of the Writ Petition, before this Tribunal, number of persons were impleaded both as applicants and also as respondents. After the trifurcation of respondent-MCD, the official respondents were also amended, accordingly.
9. This TA was earlier allowed by this Tribunal by its Order dated 02.09.2009. The MA No.2354/2009 and RA Nos.246/2009 and 247/2009 were dismissed and the CP No.241/2010 in TA No.1028/2009 was disposed of. The Writ Petition (C) No.6924/2010, filed by the respondents, against the aforesaid orders of this Tribunal was finally disposed of on 29.04.2013 by setting aside the order of this Tribunal dated 02.09.2009 in TA No.1028/2009 and order dated 20.09.2010 in RA No.247/2009 in TA No.1028/2009 and by restoring the TA 1028/2009 for fresh hearing. The relevant paragraphs of the said Order, passed in WP (C) No.6924/2010, read as under:
15. It is seen that the primary claim of the respondents No. 2 to 25 before the Tribunal has been that the period of adhoc officiation put in by them must be reckoned for the purpose of seniority. When such a question is raised, many aspects have to be seen keeping in view the law that has been laid down by the Supreme Court and this Court. They are like (i)whether the promotions have been made in terms of the rules; (ii) whether the vacancies existed in the respective quota for making promotions; (iii) whether the incumbents, who have been given promotions have the eligibility required for consideration/ promotion; (iv) whether DPC has been constituted in terms of the rules; (v) whether, seniority of the feeder cadre is not in dispute; (vi) whether there was a restraint order by court from making regular promotions etc.
16. The pleadings of the parties has been very sketchy and vague. The respondent Nos. 2 to 25 in their petition basically averred the factual aspect of the case and not the aspects which have been reflected above by us. The possible reason can be that they were not privy to such information. They may be right in saying so. Regrettably the reply of the MCD is as vague as possible without dilating on the issues like (i) reasons for making adhoc promotion only and not regular; (ii) whether DPC in terms of the rule has been constituted for making such promotions; (iii) whether the vacancies existed against the respective quotas, on the dates when promotions were made on adhoc basis.
17. During the course of the hearing of the T.A, the Tribunal passed a specific order directing the MCD to show as to what was the reason to promote the applicants on adhoc basis. Unfortunately, no such information was forthcoming. The Tribunal was required to insist upon such information be given to it so that there is a proper adjudication of the issue raised in the petition. The Tribunal instead proceeds with the case and decides in the manner as reflected in the impugned order. Regrettably the Tribunal except referring to the judgments cited by the learned counsel for the respondents No. 2 to 25 did not opine on their applicability. The applicability would be clear if the facts relevant are on record. In the absence of the facts, the applicability of the judgment is in doubt. The judgment should be understood in the context of the service rules, the facts pleaded. Further it is seen, reference to the judgment of the Supreme Court reported as (2009) 1 SCC L & S 790, Union of India vs. Dharampal was totally wrong as the Supreme Court in the Dharampals case (supra) has held as under:
The policy decision taken by Railway Authorities to regularise services of MCCs appointed on ad hoc basis was a one-time measure. It was not be followed as a precedent and therefore it was not necessary to follow it subsequently. Inter se seniority of direct recruits and promotes is regulated by Rule 302 of the Indian Railway Establishment Manual. An employee appointed to a post according to rules is entitled to seniority from the date of his appointment and not from the date of confirmation. However, where initial appointment is ad hoc and not according to rules and the appointment is made as a stopgap arrangement, period of officiation does not count for seniority. When ad hoc appointment is made, the same should be done according to rules. If mandatory provisions of the rules are not complied with, the period does not count for seniority. It is one thing to say that appointment is made on ad hoc basis but it is another thing to say that inter se seniority would be determined on the basis laid down in another rule.
The conclusion of the Supreme Court is opposite to the proposition advance on behalf of respondents no. 2 to 25.
18. In the R.A, the petitioners had submitted that the promotions of the respondent Nos. 2 to 25 was in excess of the quota meant for promotion (i.e. beyond 75%). The promotion was also without holding any DPC and under such circumstances, the adhoc officiation could not have been counted for the purpose of seniority. It is a trite law that any promotion made on adhoc basis dehors the rules would not reckon for the purpose of seniority.
19. The seniority, which has a bearing on the carrier prospects of an employee and to which an immense sanctity is attached, is required to be decided by calling upon the parties, specially the MCD, to produce record consisting of required information necessary for the purpose of adjudication. Instead the Tribunal decided the same in a cryptic manner, which may not be a correct approach.
20. Even the attempt of the petitioners, in the R.A, to contend that the promotions of the respondent Nos. 2 to 25 was beyond quota and dehors the rules, as no DPC was constituted, was brushed aside by the Tribunal only on the premise that an attempt is being made to reagitate the issue. Surely, if on such enquiry, if the review application was found to be frivolous, the Tribunal was not powerless to dismiss such a petition with stringent terms.
21. We are of the view that the petition is liable to be remanded back to the Tribunal, directing the Tribunal to adjudicate the issue of seniority afresh by calling for the records from the MCD and also permitting the MCD to file additional affidavit, keeping in view our observations in Para No.15 above. A response be also permitted to be filed by the petitioners and the respondents No. 2 to 25 herein to the additional affidavit. (Emphasis supplied)
10. After the TA is remanded back to this Tribunal, as aforesaid, the Respondent-MCD filed an additional affidavit, in terms of the observation of the Honble High Court. They have also produced the departmental record for our perusal.
11. Heard Shri Raman Duggal with Shri S.M.Arif, the learned counsel for the applicants and Shri Rajinder Khatter and Shri M.K.Bhardwaj, the learned counsel for MCD and for some of the private respondents respectively, and have perused the pleadings on record, including the departmental record.
12. Shri Raman Duggal, the learned counsel for the applicants in support of the T.A. pleadings would, inter alia, contend as under:
i) Both the applicants, who were promoted as UDCs under 75% seniority cum fitness quota, and the private respondents who were promoted as UDCs under 25% LDCE quota were initially promoted on ad hoc basis only, however, the respondents while granting regular promotions, promoted the private respondents retrospectively from the date of their ad hoc promotion whereas promoted the applicants prospectively. The said action is illegal, arbitrary, amounting to invidious discrimination and violative of Articles 14 and 16 of the Constitution of India.
ii) The applicants continuously worked as UDCs without any break from the date of their ad hoc promotion till the date of their regular promotion and hence, they are entitled to be promoted on regular basis from the date of their initial ad hoc promotion.
iii) The respondents who are under obligation to conduct the DPC regularly for each year having failed to conduct the same till the year 2003 cannot deprive the applicants from getting the regular promotion with effect from their ad hoc promotion, as on the said date sufficient vacancies were existing under 75% seniority cum fitness quota, and that the applicants were fully qualified and eligible even prior to the said date, and that their ad hoc promotion is followed by selection by DPC.
iv) As per the settled law, an ad hoc promotion followed by selection by a duly constituted DPC should be regularized with effect from the date of ad hoc promotion itself, if the vacancies were available.
v) As per the recruitment regulations for the post of UDC, the rota and quota between the seniority-cum-fitness category and LDCE category was fixed as 75% and 25% respectively. Hence, the applicants who belongs to the 75% quota of seniority-cum-fitness, should be placed above the 25% quota of LDCE in the seniority list. Further, the applicants were promoted as UDCs, against the vacancies meant for 75% quota, earlier to the private respondents.
vi) The learned counsel for the applicant placed reliance on the following Judgments:
a) Direct Recruit Class-II Engineering Officers Association and others v. State of Maharashtra and others, AIR 1990 SC 1607 [Para 44].
b) State of W.B. & Ors. v. Aghore Nath Dey & Ors., (1993) 3 SCC 371 [Paras 21 to 26].
c) N.K.Chauhan & Ors. v. State of Gujarat, AIR 1977 SCC 251[Paras 30 to 32 & 40].
d) S.B.Patwardhan v. State of Maharashtra, (1977) 3 SCC 399 [Paras 39 and 51].
e) Baleshwar Das v. State of U.P., (1980) 4 SCC 226 [Paras 30 to 36].
f) A. Janardhan v. Union of India, (1983) 3 SCC 601 [Paras 38 and 34].
g) B.S.Mathur & Anr. v. Union of India, (2008) 10 SCC 271 [Paras 12, 39, 40, 49 to 52].
h) Sunil Kumar Mehra v. M.C.D. & Anr., W.P.(C) No.2059/2012 of Delhi High Court[Paras 31 to 34].
13. Shri Rajinder Khatter, the learned counsel for the official respondent-MCD, while denying the claim of the applicants as untenable, through the additional affidavit, filed in pursuance of the aforesaid specific observation of the Honble High Court in its order dated 29.04.2013 at para 15, basing on the available record, submitted as under:
(i) As per records the Promotions were made in terms of rules i.e. after completing all the formalities required therefore and after finding that the applicants herein are fully eligible for appointment/promotion to the post of UDCs. However, formal DPCs were not conducted while making promotions of the Applicants herein. As such the respondents could not promote the Applicants herein on a regular basis on that date. However, no reason have been recorded for not hold the DPC. A copy of noting leading to the issuance of orders of promotion of the applicants in two batches is annexed herewith as Annexure R-1 (Colly.).
(ii) The records, starting from 21.07.1995, submitted herewith as Annexure-R-1 shows that the proposal for promotion was initiated under circumstances of accumulation of around 180 vacancies in the post of UDC, out of which 123 number of vacancies were shown earmarked for filling in by way of Limited Departmental Competitive Examination (i.e. LDCE), including backlogs, and 57 vacancies were earmarked for filling up by way of Promotion by Seniority-cum-fitness basis (i.e. Seniority Promotion), against which the present applicants were promoted in separate batches during the years from 1995 to 1997. However, the said calculation is not reliable in as much as nothing is on record to support the claim that there was a backlog of 104 vacancies earmarked for promotion through LDCE, whereas the list of officials working against the post of UDCs as on the said date, (i.e. the seniority list of UDCs) as on the said date, (i.e. the seniority list of UDCs) does not support the said claim/statement of backlog. As such, applying the provision of RRs for the post of 75% is to 25%, it can be assumed that necessary vacancies existed in the respective quota for making promotions on seniority cum fitness basis.
(iii) As per records available, all the incumbents, who have been given promotion did posses the eligibility required for consideration/promotion.
(iv) As per records, DPCs could not be constituted in terms of rules.
(v) The available records do not show any dispute in the Seniority of the feeder cadre.
(vi) As per records, there were no restraint order by any court from making regular promotions.
It is further submitted that due to the various changes, of serious nature, in the position and authority of the respondents took place as aforesaid the respondents are unable to place a more reliable record in regard to the exact position of vacancies existed as on the date of promotion of the applicants as well as the private respondents herein.
14. The learned counsel for the official respondents would contend that the ad hoc promotion of the applicants was not in pursuance of the recommendations of any DPC, and hence, they are not entitled for regular promotion with effect from the date of their ad hoc promotion. In support, he placed reliance on Union of India v. Shiela Rani, (2007) 15 SCC 230. He also placed reliance on the Judgement of the Honble Apex Court in State of Uttaranchal and Another v. Dinesh Kumar Sharma, (2007) 1 SCC 683. The learned counsel further submits that in view of the above, there is no illegality or irregularity in preparing the impugned final seniority list, and accordingly prayed for dismissal of the OA.
15. Shri M.K.Bhardwaj, the learned counsel appearing for some of the private respondents, would, inter alia, contend as under:
i) the cause of action for the OA arose when the applicants were promoted on regular basis, on the recommendation of the DPC, prospectively to the post of UDC, vide Office Order dated 09.06.2003 (Annexure P5). The impugned final seniority list of UDCs dated 10.02.2005 is only consequential to their promotion on regular basis. Hence, the OA is hopelessly time barred.
ii) The present dispute is not a dispute between the direct recruits and promotees. On the other hand, both the applicants and private respondents are promotees only. The 75% quota of seniority-cum-fitness was never affected regularly and hence, the principle of rota and quota has no application to the facts of the present case.
iii) The seniority of a Government servant in a post is based on the date on which he was promoted to the said post on regular basis. The applicants were promoted to the post of UDC on regular basis by Office Order dated 09.06.2003 prospectively. The applicants having not questioned the said action of the respondents in promoting them prospectively, instead of from the date of their ad hoc promotion as claimed by the applicants, cannot question the consequential impugned seniority list.
iv) The private respondents, on their successful completion of the LDCE, were promoted as UDCs against the existing 25% LDCE quota, initially on ad hoc basis, vide Order dated 20.05.1997 (Annexure P4), and later on regular basis vide Order dated 30.12.1997, with retrospective effect. However, the applicants initial promotion as UDCs on ad hoc basis under 75% seniority-cum-fitness quota was without there being any DPC. They were promoted on regular basis after the DPC is conducted in the year 2003, rightly with prospective effect. Hence, the applicants cannot compare them, with the private respondents, as their ad hoc promotion was not as per rules.
v) There were no pleadings by the applicants about the availability of vacancies under 75% seniority cum fitness quota in the year 1995-1996, i.e., at the time of promotion of the applicants on ad hoc basis.
vi) The learned counsel for the private respondents placed reliance on the following Judgments:
a) Baldeo Prasad & Ors. v. Akhouri Sachindra Nath & Ors., (1991) 2 SCC (Suppl.) 336.
b) M.S.L.Patil, Asstt. Conservator of Forests, Solarpur (Maharashtra & Ors. v. State of Maharashtra & Ors., SLP No.17913/1996.
c) Khagesh Kumar & Ors. v. Inspector General of Registration & Ors, AC SLJ 1996 (1) 23.
d) Chief Naval Staff & Anr. v. G. Gopalkrishna Pillai & Ors., (1996) 1 SCC 251.
e) Union of India v. S.S.Uppal & Ors., SLR 1996 (1) 671.
f) V.P.Shrivastava vs. State of M.P., JT 1996 (2) 374.
g) Gudur Kishan Rao & Ors. v. Sutirtha Bhattacharya & Ors. SC SLJ 1998 (2) 90.
h) K. Malalaimuthu & Anr. V. State of Tamil Nadu & Ors., JT 2006 (6) 190.
i) Uttaranchal Forest Rangers Assn. v. State of U.P. & Ors., (2006) 10 SCC 346.
j) Union of India & Others v. Sheela Rani, (2007) 15 SCC 230.
k) Nani Sha & Ors. v. State of Arunachal Pradesh & Ors., (2007) 15 SCC 406.
l) Nirmal Chandra Sinha v. Union of India & Others, (2008) 14 SCC 29.
m) Customs Appraising Officers Ass. v. Union of India, C.A.No.3630/2008.
n) Union of India v. Dharam Pal etc. C.A.No.948/2009.
o) Ch. Narayana Rao v. Union of India & Ors., C.A.No.7903/2010.
p) Shiba Shankar Mohapatra v. State of Orissa, (2010) 12 SCC 471.
q) Pawan Pratap Singh v. Reevan Singh (2011) 2 Scale 327.
r) Central Council for Research in Homeopathy v. Bipin Chandra Lakhera (2011) 5 Scale 124.
s) State of Haryana & Ors. v. Vijay Singh & Ors., C.A.No.5947/2012, dated 22.11.2012.
t) P.Sudhakar Rao & Ors. v. U.Govinda Rao & Ors, C.A.No.1712-1713/2002.
u) D.C.S.Negi v. Union of India & Ors., CC No.3709/2011, decided on 07.03.2011.
16. As pointed out by the Honble High Court, while remanding the TA for fresh hearing, the primary claim of the applicants herein is that the period of ad hoc officiation put in by them must be reckoned for the purpose of seniority. The Honble High Court has also pointed out at paras 15 and 16 of its order the aspects to be examined for deciding the claim. The Honble High Court, after noticing that the reply of the MCD does not contain the details and answers for the required aspects, directed the Tribunal to adjudicate the issue of seniority afresh by calling for the records from the MCD and also permitting the MCD to file an additional affidavit keeping in view its observations in Para No.15 of the said WP. Accordingly, the MCD, after serious pursuation by this Tribunal, filed an additional affidavit answering all the aspects pointed out by the Honble High Court and for easy understanding of the same, the aspects pointed out by the Honble High Court and the summary of answers given by the MCD have been indicated as under:
Sl.No. Aspects pointed out by the Honble High Court Summary of the answers given by the MCD
i)
ii)
iii)
iv)
v)
vi)
vii) whether the promotions have been made in terms of the rules?
whether the vacancies existed in the respective quotas for making promotions on the dates when promotions were made on ad hoc basis?
whether the incumbents, who have been given promotions have the eligibility required for consideration/promotion?
whether DPC has been constituted in terms of the rules?
whether, seniority of the feeder cadre is not in dispute?
whether there was a restrained order by Court from making regular promotions, etc.?
reasons for making ad hoc promotion only and not regular.
YES YES YES YES YES NO NOT AVAILABLE
17. A bare perusal of the above clearly indicate, as per the available records, that sufficient vacancies were existing under the 75% quota of seniority cum fitness meant for the applicants, and that they were fully qualified and eligible for promotion to the post of UDC as on the date of their ad hoc promotion. Though there were no restraint orders by any Court for making regular promotions, and though regular DPC was required to be conducted, no DPC was conducted and that no reasons have been recorded for the same. There was no dispute in the seniority of the feeder cadre. The promotions were made in terms of rules, i.e., after completing all the formalities required therefor, and after finding that the applicants are fully eligible for appointment/promotion to the post of UDCs.
18. In view of the above categorical reply by the respondent-MCD, the only question remained to be answered is that, in the aforesaid fact scenario, whether the claim of the applicants to reckon the period of ad hoc promotion for the purpose of counting their seniority, is legal, valid and supported by the settled dicta of the land?
19. In Sunil Kumar Mehra v. M.C.D. & Anr., WP(C) No.2059/2012, decided on 08.05.2013, by the Honble High Court of Delhi (supra), a vacancy to the post of Additional Town Planner, arose on 01.07.1996. The Petitioner was promoted to the said post on ad hoc basis on 07.01.1998 since he was the seniormost officer working as Junior Town Planner and was eligible to be promoted to the said post. When the Department did not convene a DPC for a considerable period, the Petitioner therein submitted various representations. On 06.09.2006, the Director (Personnel), MCD sent a note for convening the DPC. Thereafter, the MCD sent the proposal to convene a DPC for promotion to the post of Additional Town Planner on regular basis to UPSC, which examined the proposal and sought certain clarification from MCD, and after obtaining clarifications on 21.11.2007, the DPC met and recommended the name of the Petitioner to be promoted to the post of Additional Town Planner in respect of the vacancy year 1997-1998, which recommendation was approved by UPSC on 23.11.2007 and finally on 26.02.2008 the Petitioner was promoted to the post of Additional Town Planner on regular basis. In the year 2011, MCD issued a provisional seniority list of Additional Town Planners, in which the date of promotion of the Petitioner was shown as 26.02.2008 and his seniority reckoned therewith. The representation of the Petitioner for reckoning his seniority from 07.01.1998, i.e., the date of his ad hoc promotion, was rejected and a final seniority list was issued on 25.05.2011.
20. When a OA was filed, this Tribunal formulated two questions, namely, (a) whether applicant can be promoted on regular basis with retrospective effect from the date of availability of vacancy?, and (b) whether ad hoc service rendered by applicant could be counted as regular service? Following the decisions in Baij Nath Sharma v. Honble Rajasthan High Court at Jodhpur & Anr., 1987 (7) SCC 44, Union of India & Others v. Sheela Rani, (2006) 13 SCALE 394, Dr. M.S.Patil v. Gulbarga University & Others, JT 2010 (9) SC 312, C.H.Narayan Rao v. Union of India & Others, JT 2010(9) SC 346 and Central Council for Research in Homeopathy v. Bipin Chandra Lakhera and Others, (2011) 5 SCALE 124, the Tribunal held against the Petitioner in respect of both the said questions.
21. The Honble High Court, after considering the decisions in K.Madhavan and Anr. v. Union of India & Others, (1987) 4 SCC 566, Union of India & Others v. K.K.Vadera & Others, (1989) Supp.2 SCC 625, Vinod Kumar Sangal v. Union of India & Others, (1995) 4 SCC 246, Baij Nath Sharma v. Honble High Court at Jodhpur and Others, (1998) 7 SCC 44, P.N.Prem Chandran v. The State of Kerala & Others, AIR 2004 SC 255, Sanjay K. Sinha & Others v. State of Bihar & Others, AIR 2004 SC 3460, State of Uttaranchal & Others v. Dinesh Kumar Sharma, (2006) 13 SCALE 246, Nirmal Chandra Sinha v. Union of India & Others, (2008) 14 SCC 29, Union of India & Anr. v. Hemraj Singh Chauhan, (2010) 4 SCC 290, S.R.Venkataraman v. Union of India, AIR 1979 SC 49, and also its own decision dated 12.04.2013 in Union of India & Anr. v. K. L. Taneja & Anr., WP(C) No.8102/2012, allowed the Writ Petition by holding that the date of promotion of the Petitioner to the post of Additional Town Planner be treated as 07.01.1998, i.e., the date when the Petitioner was promoted to the said post on ad hoc basis, and the seniority of the Petitioner on the said post should be reckoned from the said date, by treating the ad hoc service as regular service.
22. With profit, we quote the relevant paragraphs of the said Judgment, as under:
21. The Bench had held that the cornucopia of case law noted above brings out the position:-
(i) Service Jurisprudence does not recognize retrospective promotion i.e. a promotion from a back date.
(ii) If there exists a rule authorizing the Executive to accord promotion from a retrospective date, a decision to grant promotion from a retrospective date would be valid because of a power existing to do so.
(iii) Since mala fides taints every act, requiring a person wronged to be placed in the position but for the mala fide or tainted exercise of power, promotion from a retrospective date can be granted if delay in holding DPC is attributed to a mala fide act i.e. deliberately delaying holding DPC with the intention to deprive eligible candidates the right to be promoted.
(iv) If due to administrative reasons DPC cannot be held in a year and there is no taint of malice, no retrospective promotion can be made.
xxx x x x x x x x x x x x x x x
23. What is meant by malice?
24. Malice is of two kinds one, Malice in Fact and two, Malice in Law. Malice in fact is ill-will or spite towards a party and any indirect or improper motive in taking an action. Legal Malice or Malice in Law means something done without lawful excuse. In other words, it is an act wrongfully done without reasonable or probable cause, and not necessarily an act done from ill-will or spite. (See the decision of the Supreme Court reported as S.R. Venkataraman vs. Union of India AIR 1979 SC 49).
x x xxxx x x x x x x xxxxxx
26. From the above-noted cauldron of facts, one question which stares us in the face is that: What was the MCD doing regarding convening of DPC for making promotion to the post of Additional Town Planner for the vacancy year 1997 for the period from July 01, 1996 i.e. the date when the vacancy had arisen till September o6, 2006 when the Director (Personnel), MCD prepared a note for convening a DPC?
27. The reply filed by the MCD is stunningly silent. In spite of copious pleadings made by the petitioner that in spite of various representations sent by him and there being no impediment, officers of MCD kept on sleeping and thereby deprived him the benefit of a regular service as an Additional Town Planner, nothing in word has been spoken of by MCD, except that there were administrative reasons for the delay, an expression used by the Corporation in its letter dated August 21, 2007, but what were the facts constituting the administrative reasons have not been stated.
28. MCD was under a legal duty to convene a DPC to make promotion to the post of Additional Town Planner in respect of the vacancy year 1997 because a vacancy arose on July 01, 1996 when Mr.Ashok Kumar Khanna superannuated a day prior. MCD did not do the needful but waited for 9 long years to convene the DPC in question. The action of MCD of delaying the convening of DPC in question for a period of 9 long years without there being any lawful excuse for same amounts to Malice in Law.
xxx x x x x x x x x x x xx
30. There is another side to the present matter.
31. It is well settled legal position that where an incumbent is initially appointed to a post as per the applicable Rules, whether on ad-hoc basis or otherwise and is later on regularly promoted to said post, his seniority to the said post has to be reckoned from the date of his initial appointment and not from the date of his confirmation/regularization. However, where the initial appointment is not made as per the Rules but is only a stop-gap arrangement, the period of officiation in such post cannot be taken into account for determination of seniority.
32. In the instant case, it is not in dispute that the ad-hoc promotion of the petitioner to the post of Additional Town Planner was in terms of the applicable Recruitment Rules. In view of above legal position, it has to be held that the seniority of the petitioner on the post of Additional Town Planner has to be reckoned from the date of his ad-hoc appointment to the said post. As a necessary corollary thereof, the ad-hoc service rendered by the petitioner on the post of Additional Town Planner shall be counted towards his regular service on the said post.
23. In our considered view, the facts of the present case are similar to the facts of the aforesaid case decided by the Honble High Court. Further, the official respondents in this TA and in the said WP, are the same, i.e., MCD. In this view of the matter, and in view of the fact that the Honble High Court has considered most of the decisions cited by either side in this OA, before allowing the WP, we are not proposing to burden this Judgment by discussing about the same, again.
24. It is relevant to state here that while the Honble High Court setting aside the earlier orders of this Tribunal, by its Order dated 29.04.2013, observed that the pleadings on both sides were incomplete, and accordingly it directed both sides to file additional affidavits on the aspects pointed by it. Hence, the observation made by the Honble High Court in its Order dated 29.04.2013 that the conclusion in Union of India v. Dharam Pal (supra) is opposite to the proposition advanced by the applicants, should be considered to have been made basing on the facts available at that time. Since, after the remand, the official respondents by way of additional affidavit, submitted various new facts, which answers the aspects pointed out by the Honble High Court, positively, supporting the case of the applicants, we are of the view that the said observation can have any bearing now.
25. In view of the fact that there were sufficient vacancies meant for 75% seniority cum fitness quota were in existence, and that the applicants were fully qualified and eligible in terms of the recruitment rules, and that there was no dispute about the seniority in the feeder category at the time of ad hoc promotion, and that there was no justifiable explanation for not conducting the DPC from 1995 to 2003, and that the promotions have been made in terms of the rules and that there were no restrain orders from any Court for making regular promotions, etc., we are of the view that the decision in Sunil Kumar Mehra (supra) squarely applicable to the facts of the present case.
26. Though the applicants were promoted as UDCs, on regular basis, prospectively vide Order dated 09.06.2003, but their claim to reckon their ad hoc period of promotion was rejected by way of issuing the impugned final seniority list on 10.02.2005. Since the WP (C) No.6659/2005 was filed on 11.04.2005, which was later transferred as the present TA, the contention of the private respondents that the TA is barred by limitation is untenable. Further, since the applicants sought for a direction to reckon their seniority from the date of their ad hoc promotion, their contention that the applicants have not questioned the action of the respondents in promoting them prospectively is also unacceptable.
27. Since the various decisions, which were not considered by the Honble High Court in Sunil Kumar Mehra (supra), on which the respondents have placed reliance, does not laying down any different law from that of the decisions which were considered in Sunil Kumar Mehra (supra), there is no necessity to go in detail with the same.
28. In the peculiar circumstances of the case and for the aforesaid reasons, the TA is allowed and the impugned seniority list dated 10.02.2005 (Annexure P8) is quashed, and the respondents are directed to redraw the seniority list of the UDCs by reckoning the period of ad hoc promotion of the applicants as regular service from their respective dates of ad hoc promotion, with all consequential benefits. This exercise shall be completed within a period of three months from the date of receipt of a copy of this order. No order as to costs.
Registry is directed to return the departmental record to the counsel for the official respondents.
(P. K. Basu) (V. Ajay Kumar) Member (A) Member (J) /nsnrvak/