Central Administrative Tribunal - Delhi
Sunil Kumar Agarwal S/O Satish Chander ... vs New Delhi Municipal Council Through on 3 June, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI T.A. NO.362/2009 (W.P.(C) NO.349/2002) This the 3rd day of June, 2009 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) Sunil Kumar Agarwal S/O Satish Chander Agarwal, R/O 438/5A, Bhola Nath Nagar, Shahdara, Delhi-110032. Applicant ( By Shri Sarvesh Bisaria, Advocate ) Versus 1. New Delhi Municipal Council through Chair Person/Secretary, Town Hall, Palika Kendra, New Delhi. 2. Shri Vijay Singh S/O Shiv Charan Sharma, 1/4533, Ram Nagar Extension, Mandoli Road, Shahdara, Delhi-110032. Respondents ( By Ms. Jyoti Singh, Advocate for Respondent No.1; Shri M. S. Saini, Advocate for Respondent No.2 ) O R D E R Justice V. K. Bali, Chairman:
Pleading similarity of his case for promotion on the post of Assistant Engineer with that of Rakesh Sharma, the applicant seeks a writ in the nature of mandamus directing the respondent New Delhi Municipal Council to consider his case as per current recruitment rules for promotion as Assistant Engineer (E&M) Class II, and also as per consideration in the DPC held on 19.12.2001. It appears that during pendency of this case before the High Court, Vijay Singh came to be arrayed as respondent no.2 on the application made by him for the purpose.
2. The facts as projected in the Application reveal that the applicant was appointed as Junior Engineer on 10.8.1987 and was confirmed from the said date vide order dated 9.2.1988. He is a degree holder and the relevant rules, insofar as promotion of Junior Engineer to the post of Assistant Engineer is concerned, would provide three years experience (after graduation) in the supervisory scale of not less than Rs.1400-2300 for degree holders. Insofar as, promotion of Junior Engineer holding the qualification of diploma is concerned, he has to have eight years experience in similar scale of pay. It is the case of the applicant that in 1994, one Junior Engineer, namely, Rakesh Sharma, who was a degree holder like the applicant, was promoted to the post of Assistant Engineer. His promotion was challenged by Vijay Singh (2nd respondent herein) who is only a diploma holder, before the Delhi High Court. His writ petition was dismissed vide order dated 21.2.1995. It is the case of the applicant that Vijay Singh acquired eligibility in December, 1992 only, whereas Rakesh Sharma had acquired eligibility in March, 1990, and the applicant acquired the same in August, 1990. After decision of the Division Bench of the Delhi High Court, the case of the applicant was to be considered for promotion to the post of Assistant Engineer (E&M), and the matter came up for consideration before the Law Department, NDMC and other concerned departments. The Law Department relied on the recruitment rules and the stand of NDMC in para 14 of the counter affidavit filed by NDMC before the High Court, and gave the opinion that NDMC is bound by the Division Bench judgment as also the pleadings in para 14 of the counter affidavit filed by NDMC in the High Court. The Law Department opined as follows:
In para 14 of the said counter affidavit it is stated that since the post of Asstt. Engineer (E&M) is Class-II selection post and the selection is to be made from amongst the candidates who fulfill the requisite qualification (Educational/Technical) prescribed in the R.R.s for departmental candidates holding the post in supervisory scale of not less than Rs.1400-2300, other than Jr. Engineer (M) also, it is immaterial to consider merely the seniority of the candidates falling within the consideration for the said post. Hence the claim of the petitioner for his selection merely on seniority basis is not tenable. Moreover, the petitioner became eligible to be considered for the post of Asstt. Engineer (E&M) later than the respondent No.2 as already stated. After the Law Department gave its opinion, the applicant made a representation for consideration of his case for promotion on the post of Assistant Engineer. The DPC was held on 19.12.2001, in which there was consideration of five Junior Engineers, namely, S/Shri S. K. Agarwal (the applicant), Vijay Singh (2nd respondent), S. N. Bhardwaj, S. K. Gupta and Vijay Pal Singh. The name of the applicant was placed at serial no.1 in the seniority list. The applicant has annexed notes of the DPC meeting as Annexure P-7. It is the case of the applicant that it would be clearly made out from the said notes that he was eligible for promotion and was at the top of all in the seniority list for consideration, and that there was nothing against him. A vacancy was available on retirement of Shri P. P. Garg, AE (E&M) on 31.8.2001. Despite clearance of the name of the applicant for promotion, it is his case, the respondents would not actually promote him, even though his case was exactly as of Rakesh Sharma.
3. Respective and separate replies on behalf of both the respondents have been filed. The applicant has also filed rejoinder. The matter has come on transfer from the High Court under the provisions of Section 29(2) of the Administrative Tribunals Act, 1985 and has been re-numbered as TA No.362/2009.
4. We have heard the learned counsel representing the parties and with their assistance examined the records of the case.
5. If the applicant may have parity on facts and law for his promotion to that of Rakesh Sharma, naturally the decision of the Division Bench of the High Court in WP(C) No. 580/1994 would be binding upon this Tribunal. On scrutiny of the facts and law, we, however, find that the issue involved for debate and adjudication before the High Court was entirely different than the one involved in the present case. Vijay Singh had challenged the selection of Rakesh Sharma to the post of Assistant Engineer on the basis of his being senior by counting his ad hoc service. Vijay Singh was employed as an ad hoc employee on a consolidated salary w.e.f. 4.3.1983 and his ad hoc appointment continued and ultimately, vide order dated 10.8.1984 he was regularized in the post of Junior Engineer (Mechanical) and was put in the pay-scale of Rs.425-700, which was revised to Rs.1400-2300 w.e.f. 1986. On the facts as mentioned above, it was observed by the Honble Division Bench that Vijay Singh did have eight years experience in the relevant pay scale, but the same would be from the date he became a regular employee. The plea of the petitioner was that his experience ought to have been counted from the date he became an ad hoc employee. This plea was rejected by the High Court. The judgment of the Honble Supreme Court in Narender Chadha & Others v Union of India & Others [AIR 1986 SC 638] holding that in case a person is officiating in a particular post and has been regularized subsequently, his regularization ought to be from the date he officiated in the said post, was distinguished by the High Court by observing that This judgment would not be applicable to the facts of the present case because here the petitioner was given an ad hoc employment and moreover the experience which has been made incumbent for the promotion is the experience in a particular post carrying a particular scale of pay. As per the record, the petitioner did not enjoy the benefit of equivalent pay-scale in which the experience was required to be obtained as qualification for the higher post. In the present case, the applicant himself pleads that Vijay Singh had acquired eligibility in the year 1992. It is no doubt his case that he acquired eligibility earlier to that of Vijay Singh. It is not in dispute that insofar as the seniority of Junior Engineers is concerned, Vijay Singh is senior to the applicant. The applicant, however, would claim seniority as he acquired eligibility prior to Vijay Singh. This was, as mentioned above, not an issue at all before the High Court in WP (C) No.580/1994.
6. Having given our considered thought to the situation as in hand, we are of the opinion that the applicant cannot claim to be senior to Vijay Singh (2nd respondent) only because he acquired eligibility for promotion earlier in point of time from that of Vijay Singh. If on a date when vacancy may arise, both the applicant and Vijay Singh are eligible, they have to be considered for promotion, and the seniority on the post of Junior Engineer shall hold the field. May be, in a situation where a vacancy may arise at a time when a diploma holder is not eligible having not put in eight years of experience, obviously different parameters would follow, as surely, no one can be promoted without acquiring eligibility. Surely, in that case a degree holder who may have acquired eligibility, shall have to be preferred. However, as mentioned above, when both degree and diploma holders are eligible having three years and eight years experience respectively on the post of Junior Engineer, and a vacancy then arises, the person having a longer service on the post of Junior Engineer would be senior. The 2nd respondent has annexed a copy of seniority list of Junior Engineers dated 1.3.1998 as Annexure RA-1, and that does show that the applicant is junior to the 2nd respondent. Confronted with the position aforesaid, counsel representing the applicant would base his case exclusively on the recommendations of the DPC dated 19.12.2001. Before we may refer to the same and subsequent DPCs adverted to during the course of arguments, we may mention that we required the respondents to produce records and in particular, the recommendation of DPC dated 19.12.2001, when the applicant was recommended for promotion to the post of Assistant Engineer. Ms. Jyoti Singh, learned counsel representing the respondent NDMC would urge that the said record has not been maintained as the recommendation of the DPC favouring the applicant for promotion to the post of Assistant Engineer was not accepted by the competent authority. We are of the view that even if the recommendation of the DPC was not accepted, which indeed is so, the respondents ought to have kept the said record. This matter, however, may not detain us any further as it is admitted position that the applicant was indeed recommended for promotion to the post of Assistant Engineer by the DPC held on 19.12.2001. The applicant has himself placed on records the office notings. It does appear from the same that the DPC had recommended the case of the applicant for promotion. However, on the same very day, i.e., 19.12.2001, the competent authority recorded the following order:
A DPC was held this morning to fill up one vacant post of Asstt. Engineer (E&M) class-II in the scale of Rs.6500-10500. The vacancy has arisen on account of the retirement of Sh. P.P. Garg who was posted in Auto Workshop. A.E. (E&M) class-II is a cadre of 4 posts 2 for Compost Plant, one for Auto workshop and one for the Water Supply Division. The feeder cadre of the post of J.E.(E&M) in the Auto workshop/Compost Plant in the Electricity Department and Water Supply Division in the Civil Engineering Department. The post is to be filled 100% by promotion failing which by direct recruitment. The educational and other qualification required for departmental promotion is as under:
Degree holders in Automobile/Mech. Engg. with 3 years experience (after graduation) in Supervisory scale of not less than Rs.1400-2300 (IVth CPC);
Degree holder in Automobile/Mech. Engg. having a total experience of at least 6 years in Supervisory scale of not less than Rs.1400-2300 (IVth CPC) for the candidates who attained the degree qualifications while in service but are not covered by (a) above;
Diploma in Auto/Mech. Engg. with 8 years experience in the Supervisory scale of not less than Rs.1400-2300 (IVth CPC).
The last DPC held on 1994 had considered and selected a degree holder candidate with 3 years experience in preference to equally eligible diploma holders without considering their inter-se seniority. The decision to select an eligible degree holder out of a common seniority list of eligible candidates without considering their inter-se seniority does not appear to be based on any logic.
Sh. Vijay Singh Sharma one of the eligible diploma holder candidate who appeared before me has pointed out that the eligible candidates should be considered in order of their inter-se seniority and not by giving preference to the degree holders in Mechanical Engineering. It was further pointed out that in the last DPC held in 1994 although he was eligible since his date of appointment in the cadre was 21.12.84 he was not selected. The candidate selected was Sh. Rakesh Sharma whose date of appointment in the cadre was 24.3.87 and had acquired degree in Mechanical Engineering in the year 1983. As the DPC did not consider his case as per guidelines prescribed he approached the Delhi High Court. His case, however, stands rejected.
I have gone through the opinion of the Law Officer on page 185-187/N who has observed that the selection of Sh. Rakesh Sharma was as per R.Rs and that Sh. S.K. Agarwal has been rightly considered for promotion to the post of Asstt. Engineer in accordance with the policy and stand of NDMC taken in such matters. We cannot agree with the views of the Law Officer as the recruitment rules do not prescribe any provision regarding giving preference to degree holders vis-`-vis diploma holders for changing their inter-se seniority. Sh. Vijay Singh Sharma is a diploma holder and has completed 8 years of service on 21.12.92 is an eligible candidate and should be considered senior to Sh. S. K. Agarwal whose date of appointment is 10.8.87. The matter, therefore, requires to be re-discussed before the minutes of the DPC are issued. Chief Engineer (Elect.), Transport Controller, Director (Coord.) and DLO may also be called. We may at this stage itself, also refer to minutes of the meeting of the DPC held on 10.1.2002 when the 2nd respondent came to be promoted on the post of Assistant Engineer. Relevant part of the same, also produced on records by the applicant, reads, thus:
The DPC was informed that as per the above R.Rs eligible candidates whether from degree-holder or diploma-holder are to be considered in order of their inter-se seniority. The recruitment rules did not prescribe any provision so that any preference could be given to degree-holder vis-`-vis diploma-holders, in violation of their inter-se seniority. As per inter-se seniority list circulated in 1998 Sh. V. S. Sharma is at Sr. No.1. The ACRs in respect of Sh. V.S. Sharma is not available and the same may be collected and placed before the DPC.
The DPC meeting again held on 16.01.2002 after receipt of ACRs in respect of Sh. Vijay Singh Sharma and taking into consideration the ACRs, no inquiry report, vigilance clearance and the inter-se seniority of the eligible candidates as per R.Rs, was of the view that Sh. Vijay Singh Sharma was the senior most diploma-holder having joined service in 1984. The DPC, therefore, recommends that Sh. Vijay Singh Sharma the senior most eligible candidate be selected and promoted to the post of A.E. (E&M) class-II. The order dated 19.12.2001 passed by the Director (P) not giving effect to the recommendations of the DPC, in our view, is unassailable. We have already held that when a vacancy may be available and both the degree and diploma holders may be eligible for promotion under rules, seniority in feeder cadre would govern the field. There is, however, merit in the submission made by the learned counsel representing the applicant that seniority was not the only criteria; it was a selection post, and as per the procedure adopted through out, five persons in seniority, as per rules and other criteria, had to be considered for promotion, whereas in the present case only the case of Vijay Singh came to be considered for promotion. Minutes of the DPC meeting dated 10/16.1.2002 would certainly reveal that only the case of Vijay Singh came to be considered for promotion. Ms. Jyoti Singh, counsel representing the 1st respondent and Shri M. S. Saini, counsel representing the 2nd respondent, could not controvert the plea raised by the counsel representing the applicant, as mentioned above.
7. In view of the facts as fully detailed above, we are of the view that the interest of justice would be served if we direct the 1st respondent to re-consider the promotion of the applicant and four other seniors, of course, including the 2nd respondent, once again by a review DPC. The post of Assistant Engineer, as mentioned above, is admittedly a selection post, and indeed, the respondents have been considering five eligible senior most officers for one post. We order accordingly.
8. Before we may part with this order, we may mention that the recommendation of the DPC favouring the applicant for promotion was turned down by the competent authority. The same also cannot be given effect, as surely, in the said consideration the DPC found the applicant to be senior most, which is not correct. Insofar as, the pleadings made in para 14 of the counter affidavit submitted before the High Court in WP (C) No.580/1994 is concerned, surely, the same being a question of law, if shown to be erroneous, cannot be binding upon the 1st respondent. Since the matter has already been delayed, much too much, we order that the directions as mentioned above, be complied with within a period of six weeks from today.
9. This Application is disposed of in the manner indicated above. In the peculiar facts of the case, there shall be no order as to costs.
( Dr. Ramesh Chandra Panda ) ( V. K. Bali ) Member (A) Chairman /as/