Central Administrative Tribunal - Delhi
Smt. Nirmala vs . Commissioner, North Municipal ... on 31 July, 2013
Smt. Nirmala Vs. Commissioner, North Municipal Corporation of Delhi IN THE CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH New Delhi this the 31st day of July, 2013 MA 1893/2012 CP 563/2010 TA 116/2009 Present : Shri Jagdish Prasad, counsel for applicant.
Shri Arun Bhardwaj with Shri Umesh Joshi counsel for MCD.
Shri Naresh Kaushik, counsel for respondent (UPSC) Transfer Application Nos.115 and 116/2009 were disposed of by a common order dated 06.05.2009 with a direction to the concerned respondents to recast the final seniority list of AEO (Phy) in the light of the observations made in the order. A further direction was issued for holding a review DPC and to consider the applicant herein for promotion to the post of DEO (Phy) and in case of being found fit, to give her seniority from the date of vacancy. For easy reference, para 19 of the order is extracted hereinbelow:-
In the light of the above discussion, the final seniority list of AEO (Phy) dated 17.05.2006 is quashed and set aside with directions to recast in the light of our observations above. The Respondents are also directed to hold a review DPC and consider the applicant for promotion to the post of DEO (Phy). If the Applicant is found fit for promotion, his/her seniority would be fixed from the date of vacancy on notional basis. We, however, make it clear that the Applicant would not be eligible for back wages. Although the fourth and the fifth Respondents have not filed any reply in this OA, yet in view of the fact that they are also before the Honourable Delhi High Court in some writ petition, we would leave it to the first Respondent to decide their continuation as ad hoc DEO (Phy). The above directions shall be complied with as expeditiously as possible but not later than four months from the date of receipt of a certified copy of this order. Alleging disobedience of the aforementioned order, the petitioner/applicant filed Contempt Petition No. 563/2010. With the consent of counsels for the parties, the same was adjourned sine die with MA 1893/12 liberty to apply. For easy reference, order dated 9.11.2010 passed in CP is extracted hereinbelow:-
Counsel for the parties are ad idem that his matter needs to be heard after final decision is recorded by Division Bench of this Tribunal in TA No. 154/2009 This matter is adjourned sine die with liberty to apply. TA No. 154/2009 could finally be disposed of by the Full Bench of this Tribunal vide order dated 18.10.2010 with a view that the Division Bench ought to have explored the possibility other than referring the matter to Full Bench. Nevertheless, finally the TA was considered by a Five Members Bench of the Tribunal and by a majority decision ( 4:1), the same was allowed with a direction to respondent No.1, i.e. MCD to convene with consultation of UPSC, a DPC for the post of AEOs by earmarking the vacancies year-wise and consider only those who were within the zone of consideration. The issue before the five Members Bench of the Tribunal ( as captioned in the order of Honble High Court in W.P ( C) 2215/2012) was as under:-
(i) Whether AEO (Physical) in Education Department of MCD could have been promoted on regular basis as DEO (Physical) in 2007 when neither any post of DEO (Physical) was ever created nor were they in the feeder category for promotion to the post of DEO ( which posts were created) and were governed by the notified RRs, without carrying out amendment in the notified RRs simply on the basis of an administrative decision which is contrary to the statutory rules, that too by ignoring AEOs who were indeed in the feeder category for promotion to the post of DEO as per the notified RRs and had joined the service much earlier than R-3 & R-4.
(ii) Whether petitioners have any right to claim direction to the respondents to hold year-wise DPC for respective posts as per the statutory rules. The order was challenged before Honble High Court in W.P (C) 2215/2012 (ibid) which has since been disposed of in terms of judgment dated 31.05.2013. In the said judgment, the Honble High Court viewed MA 1893/12 that the executive instructions cannot over ride the statutory rules and Resolution dated 31.1.1997 not be ground to grant promotion to the petitioner and respondent No.10 by excluding the respondent Nos. 3 to 9. The order of the Tribunal was finally affirmed. In the order disobedience of which has been alleged in CP Nos. 562 and 563/2010 (sought to be revived by way of present MA), it is noted that in another letter dated 2.03.2007 ( Pages 181-182 of the paper book), two vacancies of Deputy Education Officer (Phy) had been shown, as 15 posts of Deputy Education Officer were to be filled up in the ratio of 75:15:10:5 from amongst AEO (General), AEO (Phy), AEO (Science) and AEO (Nursery) as per the resolution of first respondent, i.e. MCD. For easy reference, relevant excerpts of the judgment read as under:-
In another letter dated 2.03.2007 placed at pages 181-182 of the paper book, two vacancies of the aforesaid posts have been shown. It is also stated that 15 posts of DEO (Phy) were to be filled up in the ratio of 70:15:10:5 for AEO (General), AEO (Physical), AEO (Science) and AEO (Nursery) respectively as per the resolution of the first Respondent. The aforesaid resolution is placed at pages 109 to 113 of the paper book). The resolution as referred to by the Tribunal (ibid) is one which has been noted and commented upon by Honble High Court (ibid). For easy reference, para 5 of the order of the Tribunal of which disobedience is alleged and para 21 of the judgment of Honble High Court are extracted hereinbelow:-Para 5 TA 116/2009
5. There were 15 posts of DEO at the relevant time, to be filled up on promotion from the feeder post of AEO (General), AEO (Phy), AEO (Science) and AEO (Nursery) in the ratio of 70:15:10:5, as per the Resolution of the first Respondent, passed in 1977. Subsequently 15 posts of DEO were increased to 17 posts in 2006-07. Para-21 21. The aforesaid conclusion of the Tribunal is correct in as much as it cant be said that the Rules have been amended as amendment has necessarily to be carried out in terms of the MA 1893/12 prescribed procedure. Further, the Rule of 1976 are holding the field for promotion to Deputy Education Officer, the increase in the number of posts with a changed nomenclature and new feeder categories necessarily must be incorporated in the regulations. The judgments relied upon by Mr. Duggal are in peculiar facts of the case where the Supreme Court has held pending notification by the Central Government, drafts rules can regulate the service conditions; till statutory rules are framed Government can issue administrative instructions; there is no bar for making appointments under the States Executive Powers without framing statutory rules. The aforesaid position of law was in the context where there are no statutory rules holding the field but where the Regulations exist holding the field, the Regulations are required to be followed scrupulously. If the scope of the Regulations have to be expanded, the same has to be by way of an amendment as per procedure so as to include the increased posts, change of nomenclature and the newly created feeder posts etc. Suffice would it be to state that the executive instructions or decisions taken, which does not have the effect of regulations cannot over ride validly made regulations. We agree with the submission of Mr.Garg that executive instructions cannot over ride statutory rules. The Resolution dated January 31, 1997 cannot be a ground to grant promotion to the petitioner and respondent No.10 by excluding the respondent Nos 3 to 9. In fact, promotional avenue was created for the AEO (Phy) only by way of said resolution. Once the Five Member Bench of the Tribunal has viewed that such avenues cannot be created by way of resolution but only by amending the regulation/rules and the view is upheld by the Honble High Court, it may not be viewed that by not considering the applicant (AEO (phy) for her promotion to DEO, the respondents willfully disobeyed the order of the Tribunal. In fact, in view of the order of Full Bench of this Tribunal in TA No. 154/2009 upheld by Honble Delhi High Court, the respondents are under command to not consider AEOs (Phy) for their promotion to DEO (Phy). Even on 9.11.2010, counsel for petitioner in CP No. 563/2010 and also in present CP conceded that the fate of Contempt Petition would depend on the fate of outcome of TA No. 154/2009. In M.A. No. 1893/2012 filed by the applicant, a prayer has been made for granting the relief prayed in the MA 1893/12 CP 563/2010 and to punish the official of UPSC including contemnor No. 2 for committing breach of their own undertaking dated 01.03.2012 and for convening a review DPC. It is also prayed by the applicant that contemnor No.1 be directed to pay to the applicant full salary from the date of vacancy i.e. 01.01.2002 as Deputy Education Officer with annual increments since she had been declared entitled to seniority from the date of vacancy, based on the view taken and the order passed by this Tribunal on 6.05.2009 in TA No.116/2009. Such view and order is in direct conflict of the view taken in the majority order of the Full Bench confirmed by the Honble Delhi High Court.
2. We are conscious that unless and until the said order is assailed and upset, the respondents would be bound by the same. Nevertheless, on 9.11.2011, counsel for the petitioner himself accepted that the fate of the order passed in TA Nos. 115 and 116/2009 would depend upon the fate of TA No. 154/2009 and preferred to await the outcome of said TA. Normally, the order passed in any proceeding may not have effect of reversing the order not specifically questioned therein and technically the beneficiary of the order can always seek execution of the same. However, in CP No 562/2010 wherein disobedience of the order dated 6.05.2009 was alleged the parties subjected the fate of the said order to the outcome of TA No. 154/2009, order in which has been finally affirmed in WP (C ) No. 2215/2012.
3. In the circumstances, we would be bound by the view taken in the said WP (C) (ibid). Accordingly MA is disposed of with a direction to respondents to take a final view in the matter, keeping in view the order in TA No.154/2009 as affirmed by Honble High Court, within a period of eight weeks.
( A.K.Bhardwaj) ( Sudhir Kumar ) Member (J) Member (A) sk sk