Central Administrative Tribunal - Delhi
Ram Jeevan Meena vs New Delhi Municipal Council on 8 September, 2011
Central Administrative Tribunal Principal Bench OA No.1714/2009 New Delhi this the 08th day of September, 2011. Honble Mr. M.L. Chauhan, Member (J) Honble Mrs. Manjulika Gautam, Member (A) Ram Jeevan Meena, S/o Shri Dhammalee Meena, R/o 38, Palika Gram, NDMC Flats, Sarijani Nagar, New Delhi. -Applicant (By Advocate Shri A.K. Trivedi) -Versus- 1. New Delhi Municipal Council, Through its Chairman, Palika Kendra, New Delhi-110001. 2. The Dy. Director (Health), New Delhi Municipal Council, Health Establishment-III, Palika Kendra, New Delhi. 3. Shri Ram Kishore, Sanitary Inspector, Employee Code No.192500, Health Department NDMC, Palika Kendra, Sansad Marg, New Delhi-110001. -Respondents (By Advocate Shri Karan Minocha for Ms. Kanika Agnihotri, Advocate, Respondent No.3 in person) O R D E R Mr. M.L. Chauhan, Member (J):
This is the second round of litigation. Earlier the applicant has filed OA No.820/2009, which was dismissed as withdrawn, with liberty to the applicant to file fresh OA on 31.03.2009, enabling the applicant to challenge promotion of respondent No.3 (R-3). Now the applicant has filed this OA, thereby making an additional prayer in clause 8 (b) that the respondents may be directed to convene a fresh DPC for promotion to the post of Sanitary Inspector (SI) against ST vacancy. At this stage, it will be useful to quote the reliefs sought by the applicant in this OA, which thus read:
(a) Quash/set aside the Impugned order dated 05/09/2008, 07/10/2008 and promotion order dated 30/10/2008 in respect of respondent No.3 declaring as illegal, unjust, arbitrary, against the rules and judicial pronouncement on the subject.
(b) Direct the respondents to convene a fresh DPC for promotion to the post of Sanitary Inspector against ST vacancy lying vacant since the year 2003 and prepare year wise panel and to consider the name of the applicant in the DPC and if the applicant is found fit, he may be promoted to the post of Sanitary Inspector against the vacancy of the year 2003 with all consequential benefits accruing therefrom.
(c) Any other relief which this Honble Tribunal may deem fit and proper in the facts and circumstances of the case.
(d) Award Costs.
2. Briefly stated, facts of the case insofar as relevant for the decision of the case are that the applicant joined the New Delhi Municipal Council as an Assistant Sanitary Inspector (ASI) on 17.02.2000 pursuant to his selection by Delhi Subordinate Services Selection Board, Delhi against the ST category. The next promotional avenue for this post was to the post of Sanitary/Surveillance Inspector. As per the recruitment and promotion rules to the post of Sanitary/Surveillance Inspector the promotion was to be made from the qualified ASIs and Surveillance Workers in the ratio of the strength of these two posts in each calendar year. The educational qualification for the said post was diploma in Sanitary Inspector course with minimum qualifying service of 5 years in the feeder cadre. As can be seen from the prayer clause, grievance of the applicant is regarding promotion of R-3, namely Shri Ram Kishor as SI vide impugned order dated 30.10.2008 against the ST quota (Annexure A-3) and orders dated 05.09.2008 and 09.10.2008 (Annexure A-1 and A-2 respectively), whereby representation of the applicant was rejected on the ground that the prescribed eligibility service of 5 years has already been included in the recruitment rules with the approval of the Chairman, NDMC and the name of applicant does not figure in the extended zone of consideration as per present vacancies. He has to wait for promotion on his own turn. Further the applicant has also made a grievance for granting him promotion to the post of SI against the ST vacancy lying vacant since 2003.
3. Notice of this application was given to the respondents, who have filed their reply, wherein they have not disputed that the applicant was appointed on 17.02.2000 as ASI against the ST point sponsored by DSSSB Delhi and as on date his seniority is appearing at serial No.50. Respondents have further stated that the sanctioned strength of SI is 43 and 2 ST posts out of 3 were filled in the year 1998. It is further stated that the 3rd ST post was carried forward for 5 consecutive years, i.e., upto the year 2003 and in the year 2003 the authority decided to fill the carried forward post of ST from a SC candidate after temporary de-reservation of S.T. point. Accordingly, DPC was held and the ST post was filled up resulting in no vacancy in SI cadre. It is further stated that no vacancy arose in the years 2004, 2005 and 2006, hence the question of year wise DPC did not arise. Respondents have further stated that vacancies arose in the years 2007 and 2008 the NDMC processed the case for promotion to the post of SI. Accordingly, the roster for ST/SC reservation was got verified from the Director (Liaison) and the same is reproduced by the respondents in the reply-affidavit, which thus reads:
S/C S/T U/R TOTAL Required 6 3 34 Working 5 2 34 41 Short fall 01 01 Nil 02
4. Respondents have further stated that against the short fall vacancies of ST category one post of ST category as per seniority list in the cadre of ASI the following candidates were available:
Name Seniority No. Date of appointment Sh. Mool Chand 01 11.06.1982 Sh. Babu Lal 36 25.01.1996 Sh. Ram Kishor 37 25.01.1996 Sh. Ram Jeevan Meena (applicant) Sh. Harchan Das Meena 55 31.10.2000.
According to the respondents since R-3 was the only senior-most qualified person being diploma holder, he was promoted to the post of SI in terms of the recruitment rules against the ST point. Thus, according to the respondents, applicant has got no case whatsoever.
5. Respondents have further categorically stated in the reply that the applicant could not have been promoted in the year 2003, as he was not possessing the requisite experience of 5 years against the vacancy meant for ST, as such the same was de-reserved and the vacancy meant for ST category was filled in from SC category candidate.
6. Applicant has filed the rejoinder. The fact that applicant was not possessing 5 years experience in the year 2003 has not been categorically denied by the applicant and the applicant has only made a vague allegation that he was eligible in the year 2003. Further the applicant has placed reliance on the information sought by him under the Right to Information Act, 2005 vide letter dated 07.08.2008 (Annexure A-12), whereby he was informed that one post of ST category is being carried forward since 2003 due to non availability of ST candidates and no general category candidate was promoted against ST point. A perusal of this letter also reveals that the amendment dated 13.05.1994 has already been incorporated in the recruitment rules.
7. We have heard the learned counsel of the parties and gone through the material placed on record. In this case dispute is regarding filling up one post of ST category in the cadre of SI. From the facts, as stated above, it is evident that the cadre of SI consists of 43 posts, out of which only 03 were meant for ST category. It is also not disputed that the 02 posts in the said cadre stood already filled prior to joining of the applicant in the department. Thus, only one post was required to be filled in from ST category as per cadre strength. The respondents have categorically stated in the reply-affidavit that ST post was carried forward for 05 consecutive years, i.e., upto 2003 but since no ST eligible candidate was available in the feeder category, as such the post was de-reserved and the same was filled in from SC category. Respondents have also categorically stated that thereafter post in the cadre of SI became available in the years 2007-2008, as such R-3, who was inducted in the feeder cadre on 25.01.1996 and was senior to applicant, who admittedly was inducted in the feeder cadre on 17.02.2000, was promoted against the one post of SI. Thus, in view of this specific stand taken by the respondents and the fact that applicant is not controverting the appointment of R-3 as ASI in 1996, who admittedly belongs to ST category, we see no infirmity in the action of the respondents, whereby R-3 has been promoted as SI, vide impugned order dated 30.10.2008 (Annexure A-3). Further, it is admitted position that seniority of the applicant in the feeder cadre was at serial No.50. Vide impugned order 10 persons have been promoted; including one each post meant for SC and ST categories. Admittedly, applicant did not fall in the zone of consideration insofar as to the post of general category is concerned. Even otherwise, it is not the case of the applicant that he should be promoted against the post meant for general category and thus has not made any grievance regarding the other 09 candidates promoted vide impugned order dated 30.10.2008. Thus, in view of what has been stated above, applicant is not entitled to any relief.
8. Now let us consider the second grievance raised by the applicant, i.e., regarding convening a fresh DPC for promotion to the post of SI against ST vacancy lying vacant since 2003. Applicant is claiming this relief on the basis of the un-amended rules for the post of Sanitary/Surveillance Inspector notified vide resolution No.23, dated 26.06.1985. Applicant has also placed on record a copy of the recruitment rule, which was supplied to him under RTI Act, 2005 vide letter dated 30.06.2008 (Annexure A-10). Perusal of column 7 of the said recruitment rule makes it clear that for the purpose of promotion persons in the feeder grade must possess the following educational and other qualification, which thus reads:
1. Diploma in Sanitary Inspector Course.
2. Promotion to the post of Sanitary/Surveillance Inspector be made both from qualified Asstt. Sanitary Inspectors and Surveillance Workers in the ratio of the strength of these two posts posts in each calendar yr.
3. Minimum Qualifying service 5 yrs.
9. As can be seen from the letter dated 07.08.2008 (Annexure A-12) the amendment, whereby minimum qualifying service of 5 years was prescribed, has been incorporated by the amendment dated 13.05.1994, which condition was not there in the earlier rule. Thus, admittedly in the year 2003 applicant did not possess the requisite experience of 5 years on the post of ASI, as he joined the said post on 17.02.2000. Thus, even if the vacancy of ST category was available in the year 2003, as contended by the applicant, and the same was not carried forward/de-reserved for ST category, even then the applicant could not have been promoted as SI in the year 2003. As such, the relief sought by the applicant for convening a fresh DPC for promotion to the post of SI and to promote him against the vacancy of the year 2003, cannot be acceded to. Besides the grievance raised by the applicant for his promotion against the vacancy of ST for the year 2003 has been agitated before this Tribunal by filing OA in the year 2009. As such, the same is hopelessly time barred. Be that as it may, we are of the firm view that the applicant was not entitled for promotion to the post of SI against the vacancy of ST in the year 2003, as he did not possess the requisite experience of 5 years. Even as per the own showing of the applicant R-3 has completed the SI diploma in the year 2006 and when his case was considered in the year 2008 he possessed not only the essential qualification of diploma in Sanitary Inspector but also R-3 was senior to applicant and also possessed the requisite experience of 05 years on the post of ASI. As such, according to us, R-3 was rightly promoted to the post of SI.
10. Thus, viewing the matter from any angle, we are of the view that the applicant has not made out any case for grant of relief. Accordingly, OA is dismissed, as devoid of merit, with no order as to costs.
(Smt. Manjulika Gautam) (M.L. Chauhan) Member (A) Member (J) San.