Central Administrative Tribunal - Chandigarh
Unknown vs Union Of India Through Secretary To ... on 24 April, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH OA No. 060/01038/2016 Date of order:24.04.2017 CORAM: HONBLE MR.JUSTICE M.S. SULLAR, MEMBER (J) HONBLE MR.UDAY KUMAR VARMA, MEMBER (A) Mukesh Kumar Kapoor, aged 57 years S/o Sh. Rajender Kumar Kapoor, Sub Divisional Engineer, Public Health, Sub Division No. 4, Sector 9, Chandigarh with additional charge as Executive Engineer, Public Health, Division No. 8, Sector 9, Chandigarh. .Applicant Argued by: Mr. R.K. Sharma, Advocate VERSUS 1. Union of India through Secretary to Government of India, Ministry of Urban Development, Nirman Bhawan, New Delhi 110 011. 2. Union Territory, Chandigarh through its Administrator, UT Chandigarh. 3. Finance Secretary-cum-Secretary, Engineering Department, Union Territory, Chandigarh Administration, UT Secretariat, Sector 9, Chandigarh. 4. Secretary, Department of Personnel, Union Territory, Chandigarh Administration, UT Secretariat, Sector 9, Chandigarh. 5. Chief Engineer, Union Territory, Chandigarh Administration, UT Secretariat, Sector 9, Chandigarh. Argued by: Mr. Ram Lal Gupta Advocate for respdt.No.1. Mr. Arvind Moudgil, Advocate for respdts. No. 2-5. ..Respondents ORDER
HONBLE MR. UDAY KUMAR VARMA, MEMBER (A): -
1. This OA has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief(s):-
(i) Quash Circular dated 14.06.2010 including letter dated 01.09.2016 as conveyed to the applicant vide Memo No. A-2/2016/7700 dated 15.09.2016 (Annexure A-1 colly.) whereby it denies the benefit of experience towards eligibility for promotion to the higher post which is Executive Engineer in the present case and denies the benefit for the period from 04.08.2008 to 26.12.2011 rendered by the applicant as Sub Divisional Engineer, though nomenclature as Additional Charge but in fact he performed the full duties and shouldered all the responsibilities of the post of Sub-Divisional Engineer, his ACRs were written as Sub Divisional Engineer and he also performed the functions and other administrative duties including writing of the ACRs of his subordinates, in derogation of the law laid down by the Apex Court as well as by the Jurisdictional High Court and it having not been issued by the competent authority.
(ii) Issue directions to the respondents to consider the claim of the applicant alongwith others who are eligible for promotion from the post of Sub Divisional Engineer to that of Executive Engineer Public Health from the date applicant has been given additional charge of the post of Executive Engineer i.e. 15.01.2016 in accordance with Punjab Service of Engineers (Civil Wing), Department of Public Works (B & R) Branch, Group A Service Rules. 2005 or Punjab Water Supply and Sanitation (Engineering Wing) Group A Service Rules 2007 and to consider all those who are eligible including applicant, by counting service rendered by him as additional charge for the period from 04.08.2008 to 26.12.2011 by treating him eligible in view of the law laid down by the Jurisdictional Punjab and Haryana High Court in D.P. Mehta Vs. PGI, 1997(1) RSJ 503 coupled with the judgement rendered by this Tribunal in OA No. 912/CH/2011 titled Prem Paul Sharma and Anr. Vs. UOI & Ors., upheld upto the Apex Court with all consequential benefits if required by repatriating the deputationists who have no right to hold the post in the Union Territory, Chandigarh being in violation of the Recruitment Rules.
2. The issue involved in the present case is whether the experience of working as Sub-Divisional Engineer on Current Duty Charge/Additional Charge is to be counted towards experience for the next higher post of Executive Engineer in terms of Punjab Service of Engineers (Civil Wing), Department of Public Works (B and R Branch) Group A Service Rules, 2005 and Punjab Water Supply and Sanitation (Engineering Wing) Group A Service Rules, 2007 and whether the respondents are required to consider all those who are eligible including applicant, by counting service rendered by him as additional charge for the period from 04.08.2008 to 26.12.2011. Further, whether his eligibility gets established in view of the law laid down by the Honble Punjab and Haryana High Court in D.P. Mehta Vs. PGI, 1997(1) RSJ 503 coupled with the judgement of this Tribunal in OA No. 912/CH/2011 titled Prem Paul Sharma & Ant. Vs. UOI & Ors. upheld upto Apex Court.
3. The facts as brought out in the OA are that the applicant, a qualified Diploma holder in Civil Engineering, was initially appointed as Junior Engineer Public Health on 16.03.1982. During his employment, he qualified both Sections A and B of AMIE by December, 1982. The applicant was transferred to Municipal Corporation on 19.05.1996 and was designated as Sub Divisional Engineer in his own pay scale being the senior most AMIE vide letter dated 17.04.2000 (Annexure A-2) and thereafter worked as OSD to Chief Engineer, Municipal Corporation, Chandigarh from 27.09.2000 to 13.06.2001 vide order dated 27.09.2000 (Annexure A-3). Vide order dated 15.02.2002 (Annexure A-4), the applicant was conferred Class II Gazetted status with designation of Assistant Engineer on completion of 16 years service. The next channel of promotion from the post of Assistant Engineer is to the post of Sub Divisional Engineer. For promotion to the the post of Sub Divisional Engineer, Punjab Service of Engineers (Civil Wing), Department of Public Works (B and R Branch) Group A Service Rules, 2005 (Annexure A-5) are being followed. The eligibility criteria for promotion to the post of Sub Divisional Engineer is same in both Public Health Rules or B&R Rules.
4. It is averred in the OA that as convening DPC for the purpose takes longer time, UT Chandigarh is in the practice of offering higher post by way of current duty charge or additional charge as per the seniority and eligibility of the officers and in case some officer is undergoing disciplinary proceedings or otherwise, the person next to him is given the charge of the next higher post. The applicant, being senior most was given the charge of Sub Divisional Engineer on 04.08.2008 and was transferred from SDE Water Supply Sub Division No. 4 to SDE Supply No. 6 as SDE and continued there upto 26.12.2011 (Annexure A-6 to Annexure A-8). The applicant fully performed the duties and exercised powers of SDE and during his continuation as such, he was also released ACP in the higher grade w.e.f. 01.12.2011 in the Pay Band of Rs. 15600-39100 with Grade Pay of Rs. 6600. Subsequently, on the convening of DPC, the applicant was promoted as regular SDE w.e.f. 27.12.2011 and cleared his DPE vide notification dated 05.10.2012 (Annexure A-9 to Annexure A-11) and continued performing as such till 15.01.2016 when he was given the additional charge of the post of Executive Engineer as per his seniority on 15.01.2016 ignoring senior most Sub Divisional Engineer Sh. Rajesh Bansal who was facing disciplinary proceedings at that point of time. This period of holding additional charge of Executive Engineer was extended upto 19.10.2016 vide order dated 21.07.2016.
5. It is further averred that there were four posts of Executive Engineers and the working experience required for promotion from the post of Sub Divisional Engineer to the post of Executive Engineer is eight years. The plea of the applicant is that out of these four posts, three are filled by deputation which is a totally stop-gap arrangement as there is no provision in the rules to fill the post of Executive Engineer on deputation and as and when a person from the feeder cadre becomes eligible, then these deputationists have to make a room for him. Thus as and when UT cadre employees become eligible for promotion against higher post, they must be preferred over deputationists. As the inter-se position of the applicant in the cadre of Sub Divisional Engineer is second, first being held by Sh. Rajesh Bansal who is facing disciplinary inquiries, he requests that he may be considered for the post of Executive Engineer and he has no problem if Sh. Rajesh Bansal, being senior to him, may also be considered for the post of Executive Engineer as there is no dearth of vacancy for the post of Executive Engineer. In the Rules for recruitment to the post of Executive Engineer, only eight years experience is required and the applicant being eligible, made a representation dated 14.07.2016 to the authorities concerned which was rejected without application of mind. To support his claim, the applicant relied on several judicial pronouncements and hence, he is before us.
6. The respondents contested the claim of the applicant by filing a written statement and stated that as per the provisions of Punjab Water Supply & Sanitation (Engineering Wing) Group A Service Rules, 2007 as notified by the Punjab Government vide notification dated 20.06.2007(Annexure R-I), for promotion to the post of Executive Engineer, an experience of working for a minimum period of eight years as Sub Divisional Engineer is mandatory and only regular service in the cadre of Sub-Divisional Engineer is being taken into consideration for eligibility for further promotion to the post of Executive Engineer (Civil). It is stated that in view of the specific instructions issued by the Chandigarh Administration on the subject of assigning of Current Duty Charge and counting of such service for further promotion, the claim of the applicant that he is eligible for further promotion to the post of Executive Engineer (Civil) is not sustainable.
7. It is further stated that the applicant who is otherwise 2nd senior most Sub Divisional Engineer in the seniority, has not completed the requisite length of eight years regular service required for promotion to the post of Executive Engineer (Public Health), yet the respondents have granted him additional charge of the post of Executive Engineer (Public Health) vide order dated 15.01.2016 (Annexure A-13) purely as a stop gap arrangement in the interest of official work against the leave vacancy of Er. Naveen Verma, Executive Engineer who was on maternity leave and thereafter on child care leave. Thus, the OA is devoid of merits and is liable to be dismissed.
8. The applicant has filed the rejoinder controverting the stand of the respondents and reiterating the averments made in the OA. For clarifying the term Experience, the applicant also referred to the judgement in OA No. 19-CH-2010 decided on 15.03.2010 which attained finality upto the Apex Court. Thus, the claim of the applicant is squarely covered by the ratio of law laid down by this Tribunal, the Honble High Court as well as the Apex Court.
9. We have heard the learned counsel for the parties and have carefully gone through the pleadings on record.
10. The respondents stand for denying the consideration of the promotion of the applicant is essentially based on the provisions of the Punjab Water Supply and Sanitation (Engineering Wing) Group A Service Rules 2007 which prescribe the following requirement for promotion to the post of Executive Engineer:-
From amongst the Sub Divisional Engineers, who have an experience of working as such for a minimum period of eight years. The contention of the respondents is that the applicant was promoted as Sub-Divisional Engineer on regular basis on 01.06.2013 and cleared his probation period as Sub Divisional Engineer on 01.06.2014 and, therefore, he did not fulfil the requirement of having worked as Sub Divisional Engineer for a minimum period of eight years at the time of consideration of his promotion.
11. This provision of having an experience of working as Sub Divisional Engineer has to be looked at very carefully and thoroughly. Nobody disputes the fact that the applicant held an additional charge of the post of Sub Divisional Engineer from 04.08.2008 to 26.12.2011. This additional charge was given to him on account of his seniority and his efficiency. There is no assertion to the fact that while discharging the additional responsibility of Sub Divisional Engineer, the respondents had in any way curtailed or restricted his functioning as Sub Divisional Engineer only because it was an additional charge. As a matter of fact, even though it was an additional charge, the applicant discharged the functions of Sub Divisional Engineer in a full fledged manner. It is also to be noted that not only he was given the additional charge of Sub Divisional Engineer earlier, i.e. from 04.08.2008 to 26.12.2011, even after becoming of a regular Sub Divisional Engineer, he was also given additional charge of Executive Engineer which, indeed, reflects on his suitability for the post. The respondents have also admitted that at the time when he was given the additional charge of Sub Divisional Engineer, there was a likelihood of DPCs being delayed and therefore, this arrangement was made. This implies that if the DPCs were held in time, the applicant may perhaps have become a regular Sub Divisional Engineer much earlier.
12. As is evident from the record and the pleadings of both the parties, the applicant has discharged the functions of Sub Divisional Engineer between 04.08.2008 to 26.11.2011 in a full-fledged manner without in any way, getting restricted or circumscribed in terms of the authority and powers of Sub Divisional Engineer. In other words, his working in this additional charge was as good as a regular charge. We are, therefore, unable to understand the reservation on the part of the respondents to consider his additional charge experience as the required experience. The wording of the Rule also does not rule out an interpretation that an additional charge or a current duty charge cannot be taken as the required experience. The learned counsel for the applicant has placed before us the judgement of the Jurisdictional High Court namely D.P. Mehta (Dr.) Vs. PGI and its Governing Body, RSJ 1997(1) 503 to buttress his case. This judgement fairly and squarely covers this matter. Here, the respondent PGI and its Governing Body had disregarded the claim of the petitioner for promotion to the post of Joint Medical Superintendent and taken recourse to direct recruitment on the ground that the petitioner did not fulfil the required experience of regular five years as Deputy Medical Superintendent. The fact in this case was that the petitioner was given the additional charge of Deputy Medical Superintendent and had worked on that post for more that required number of years to make him eligible for consideration for promotion to the post of Joint medical Superintendent. The facts and circumstances of this care are almost identical and the decision of the High Court in this case can be very fairly and rightly applied to this case as well.
13. Given the above discussion, we have no doubt in our mind that the stand of the respondents that the experience acquired by the applicant when he was in additional charge of Sub Divisional Engineer, is not proper experience, is neither correct nor legally sustainable and therefore, the Circular dated 14.06.2010 and the letter dated 01.09.2016 are hereby quashed. The respondents are directed to consider the applicants case of promotion for the post of Executive Engineer taking into account as legitimate experience the work done by him as Sub Divisional Engineer from 04.08.2008 to 26.11.2011. During the course of arguments, it was submitted by the learned counsel for the applicant that the applicant is going to retire in the month of August, 2017 and therefore, the respondents be directed to hold the DPC before his retirement. Ordinarily, there is no necessity to issue a specific direction to hold the DPC within a specified period of time as the timing of the promotion is largely the prerogative of the employer. However, given the facts of this case, while we will like to stop short of issuing a specific direction, we certainly expect the respondents to be fair in this matter and hold the DPC as soon as possible and certainly before the applicant retires even without a specific direction from us.
14. For the aforestated reasons, the OA is allowed. There shall, however, be no order as to costs.
(UDAY KUMAR VARMA) MEMBER (A)
(JUSTICE M.S. SULLAR)
MEMBER (J)
Dated: 24.04.2017
ND*
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O.A.060/01038/2016