Central Administrative Tribunal - Delhi
O. P. Srivastava S/O R. D. Srivastava vs Government Of Nct Of Delhi Through Its on 18 April, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.2757 of 2010 M.A. Nos.2152/2010, 468/2011 This the 18th day of April, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) 1. O. P. Srivastava S/o R. D. Srivastava, R/o 550-A, Kanishka Residency, Sector 35, Faridabad. 2. Sanjay Saxena S/o R. M. Saxena, R/o EA-383, Maya Enclave, Hari Nagar, New Delhi. Applicants ( By Shri Ashish Nischal, Advocate ) Versus 1. Government of NCT of Delhi through its Chief Secretary, Players Building, Delhi Secretariat, IP Estate, New Delhi-110002. 2. Department of Irrigation and Flood Control through its Principal Secretary, 5/9 Underhill Road, Delhi-110054. 3. Union Public Service Commission through its Secretary, Dholpur House, Shahjahan Road, New Delhi-110069. 4. Vijay Kumar Jain S/o S. S. Jain, R/o 112, Ashirwad Apartments, Plot No.11, Sector-12, Dwarka, New Delhi-110075. 5. Narinder Kumar Sharma S/o H. R. Sharma, R/o C-16, Dayanand Colony, Lajpat Nagar-IV, New Delhi. 6. Pati Ram Singh, Executive Engineer (Civil), O/o Chief Engineer, Zone-1, Department of Irrigation and Flood Control, 4, ISBT, Delhi. Respondents ( By Ms. Pratima Gupta for Respondents 1 & 2; Mrs. B. Rana for Respondent No.3, Advocates ) O R D E R Justice V. K. Bali, Chairman:
O. P. Srivastava and another, the applicants herein, have been promoted on the post of Executive Engineer (Civil) with effect from 26.2.2009. The Grievance of the applicants is that even though, in view of the provisions contained in the rules governing their promotion from the post of Assistant Engineer to Executive Engineer they were eligible and the vacancies in the post of Executive Engineer were available in the year 2006-07, the respondents would, however, hold the DPC only on 26.2.2009, without there being any reason whatsoever for delay. It is the case of the applicants that if there be no reasons whatsoever for the respondents to delay holding of DPC, then on whatever date the DPC may be held and promotions made, the same would relate to the years when the vacancies were available, and they were eligible under rules for promotion. It is urged by the learned counsel representing the applicants that even though, an employee may not have a fundamental right of promotion and such right may be only of consideration for promotion, but if the vacancies in the promotional post are available and there are no reasons whatsoever not to hold DPC, the applicants cannot be made to suffer.
2. The plea raised by the applicants in this Original Application filed under Section 19 of the Administrative Tribunals Act, 1985 stems from the undisputed facts that whereas, O.P. Srivastava, the 1st applicant, joined the respondent no.1 organisation as Assistant Engineer (Civil) on 16.3.1992 as a direct recruit, Sanjay Saxena, the 2nd applicant, joined on the said post on 1.4.1992, also as a direct recruit. In view of the recruitment rules for the post of Executive Engineer (Civil), both the applicants became eligible for promotion on the said post in the year 2000 after completing eight years of regular service as Assistant Engineer. They were promoted to the post of Executive Engineer (Civil) on current duty charge in the year 2004. On 26.2.2009, the 1st respondent, on the recommendation of the DPC, promoted the applicants on the post of Executive Engineer (Civil) on officiating basis w.e.f. 26.2.2009. The applicants were in the zone of consideration and were eligible for consideration for promotion as Executive Engineer (Civil), and the vacancies were also available in the year 2006-07, yet, they were promoted only with effect from 26.2.2009. As per Government of India instructions contained in OM No.22011/9/8-Estt(D) dated 8.9.1998 read with OM of even number dated 13.10.1998 and OM dated 14.12.2000, it is incumbent upon the Government to hold year-wise DPCs, which was not done. There were no reasons whatsoever with the respondents to delay holding of the DPC. As a result, the applicants were denied promotion on the post of Executive Engineer (Civil) against the vacancies of the year 2006-07. The applicants for the reliefs asked for, rely upon a decision of this Tribunal in ON No.2140/2010 in the matter of H. S. Bhardwaj v Government of NCT of Delhi & others, decided on 1.10.2008, and yet another decision in OA No.280/2008 in the matter of Y. S. Chaudhary & others v Ministry of Railways, decided on 29.1.2010.
3. Pursuant to notice issued by this Tribunal, two separate replies one on behalf of the respondents 1 and 2 and another on behalf of respondent no.3, have been filed. The reply filed on behalf of the 3rd respondent, UPSC, is formal and there would be no need to refer to the pleadings made therein. We may, however, mention that it has been mentioned in the reply that the order of this Tribunal in OA No.2140/2006 has since been implemented. Insofar as, the reply filed on behalf of respondents 1 and 2 is concerned, all that requires to be mentioned is that the factual aspect of the case has not been disputed. While, however, opposing the cause of the applicants, all that has been averred is that although DPC was held on 19.1.2009 and the applicants were found fit for promotion for the panel year 2006-07, yet as per DOP&T instructions dated 1.4.1989, promotion to them could be given from the date of holding DPC. In other words, promotion, it is pleaded, could not be given to the applicants retrospectively.
4. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. There would be no need to delve on the issue involved in the present case, as, in our view, the matter is squarely covered in favour of the applicants by decision of this Tribunal in OA No.2140/2006 in the matter of H. S. Bhardwaj (supra) which pertains to the same very department. We referred to the instructions and the case law in all its minute details, and while granting relief to the applicant, relied upon number of judicial precedents of the Tribunal, High Court and the Honble Supreme Court. The views taken in the judicial precedents have also been mentioned. Pertinent reliance was placed upon the decision of the Tribunal in OA No.2041/2003, wherein the applicant Shri S. N. Dixit had challenged the order dated 16.10.2002 rejecting his representation dated 22.7.2002 seeking promotion to the grade of Senior Research Officer (Scientific) from the date of vacancy caused on 9.2.1999. The Tribunal, relying upon the judgment of the Supreme Court in Union of India & others v Vipinchandra Hiralal Shah [(1996) 6 SCC 721], allowed the OA and set aside the order dated 16.10.2002, declaring the applicant to be entitled to grant of promotion notionally with effect from 15.8.1999. Reliance was also placed upon the judgment of the Apex Court in Secretary-cum-Chief Engineer v Hari Om Sharma & others [(1998) 5 SCC 87]. In fact, the entire case law on the subject was referred to and, therefore, as mentioned above, there would be no need to delve into the issue on law in all its minute details. It is not disputed during the course of arguments that the judgment of this Tribunal in OA No.2140/2006 has since been implemented.
5. For parity of reasons given by us in our order dated 1.10.2008 in the matter of H. S. Bhardwaj (supra), this Original Application is allowed. A direction is thus given to the respondents to convene review DPC for considering the promotion of the applicants when the vacancies on the post of Executive Engineer (Civil) arose in the year 2006-07. The records of the applicants as may be relevant, shall be taken into consideration and based thereon, a decision will be taken as to whether the applicants were fit for promotion in the year 2006-07. If the applicants are found fit, they shall be promoted on the post of Executive Engineer (Civil) from the year 2006-07, even though notionally. There shall be no order as to costs.
6. Before we may part with this order, we may mention that by virtue of the order passed by us today, the applicants will not be able to seek seniority over and above those who may be senior to them on the post of Assistant Engineer and in whose cases as well the DPC may have been delayed.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/