Central Administrative Tribunal - Delhi
Ms. Prerna Lakra vs Govt. Of Nct Of Delhi on 2 November, 2011
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-3190/2010
New Delhi this the 2nd November, 2011.
Honble Mr. G. George Paracken, Member (J)
Honble Dr. A.K. Mishra, Member (A
Ms. Prerna Lakra,
W/o Sh. Sanjay Subash Kumar,
R/o Flat No.458/C, Divya Jyoti
Apartment, Sector-19, Rohini,
Delhi-85. .. Applicant
(through Ms. Jasvinder Kaur, Advocate)
Versus
1. Govt. of NCT of Delhi
Through Chief Secretary,
Delhi Secretariat,
I.P. Estate, Delhi-2.
2. Principal Secretary (Home)
Govt. of NCT of Delhi
Delhi Secretariat,
I.P. Estate, Delhi-2.
3. Director,
Forensic Science Laboratory,
Govt. of NCT of Delhi,
Madhuban Chowk,
Sector-19, (Outer Ring Road),
New Delhi. . Respondents
(through Sh. N.K. Singh for Mrs. Avnish Ahlawat, Advocate)
O R D E R
Dr. A.K. Mishra, Member (A) The applicant seeks the following reliefs:-
(i) to declare the action of the respondents in not holding the DPC for the purposes of filling up vacancies by un-amended rules as illegal and the impugned order dated 25.08.2010 may be quash and set aside;
(ii) to direct the respondents to fill up the existing vacancies in accordance with the Recruitment Rules dated 19.12.1997 which were in force and were applicable on the date the said vacancies occurred/created and consider the case of the applicant for promotion to the post Senior Scientific Assistant (Ballistics) and, if the applicant is found fit, she may be promoted;
(iii) to pass such other and further orders as deem fit and proper.
2. The brief facts of the present case are as follows:-
The applicant was initially appointed as Laboratory Assistant (Group-C) on 21.09.1999. She was promoted to the rank of Scientific Assistant (Ballistics) w.e.f. 08.07.2005 (A-3). It is her case that on the basis of Recruitment Rules (RRs), 1997 meant for the next higher post of Sr. Scientific Assistant she became eligible for promotion on completion of 3 years regular services as Scientific Assistant. The RRs were amended on 29.09.2008 prescribing for six years of experience for eligibility. According to her, since vacancies existed, she should have been considered under the old Rules and DPC should have been held in the month of July, 2008 and she, being the only eligible candidate available for promotion, should have been given the promotion immediately thereafter.
2.1 She filed OA-1816/2008 seeking the promotion; it was rejected on 23.09.2009 on the ground that she had not challenged the new RRs and the order dated 29.08.2008 which had rejected her claim. The Review Application No. 192/2009 filed by her was also dismissed. However, it stated that the Tribunal had not gone into the merit of the case and had given liberty to the applicant to challenge the new RRs and the order of the respondents dated 29.08.2008.
2.2 She filed a fresh representation on 25.05.2010 claiming the same relief; it was again rejected on the ground that she did not satisfy the eligibility criteria as prescribed under the new Rules.
3. At the time of hearing, learned counsel for the applicant submits that the new Rules will apply prospectively from the date of promulgation on 29.09.2008. For filling up vacancies which existed earlier, the promotion will be guided by the previous Rules of 1997. She places reliance on the judgment of Honble Supreme Court in the case Union of India and others Vs. N.R. Banerjee and others, AIR 1997 SC 3761 in support of her contention. The applicant has also cited the following judgments:-
(i) Y.V. Rangiah Vs. J. Sriniwas Rao, AIR 1983 SC 852
(ii) B. S. Gupta Vs. UOI (OA-3346/2002-CAT-PB)
(iii) R.P. Nautial & Ors. Vs. GNCTD & Ors., (WP(C) No. 3586/2008 & Others decided on 24.11.2010.
(iv) UOI & Anr. Vs. R.K. Trivedi (WP(C) No. 665/2011 decided on 04.08.2011.
4. Respondents have taken preliminary objection on the grounds of res-judicata and non-joinder of necessary parties. As noted earlier, this Tribunal itself had stated that the merits of the case had not been gone into either in OA-1816/2008 or in RA-192/2009. As such, the objection on res-judicata is clearly misplaced. As regards the other candidates the applicant has mentioned that they belonged to other disciplines and were not candidates for the post of Sr. Scientific Asstt. (Ballistics). Therefore, it was not necessary to implead them as parties. We agree with the applicant and over-rule the preliminary objections and proceed to examine the merits of the case.
4.1 The respondents have stated that, pursuant to the direction of the Honble High Court in the matter, 3 new posts were created on 03.05.2007. Keeping that fact in view the Govt. went for amendment of the RRs and referred the proposed Rules to the UPSC. On getting the concurrence of UPSC, the new Rules were notified in the month of September, 2008. At the beginning of 2007, there was only one post, which had been filled up by promotion of a senior candidate. By the time, the applicant was to be considered, the new Rules had come into effect. The judgment in N. Banerjees case (supra) made in a different factual context, it is contended, was not relevant to the present case. In this connection, the decision in the case Y.V. Rangiah (supra) was in the context that a panel had to be prepared according to RRs every September. In the present case, there was no prescription under the Rules. The judgment in the case B.S. Gupta (supra) was in different context in which it was held that the respondents had to take into account the vacancies which were likely to arise on account of retirement and promotions. The judgment in the case R.P. Nautial & Ors. (supra) are also factually distinguishable. The judgment in the case R.K. Trivedi (supra) also deals with the question of a vacancy year. It says that when the post was available in a specific year it means that a vacancy for the post is to be considered in the next subsequent year. It is the ruling in N. Banerjees case (supra) which is of relevance for our purpose and it had been discussed. The Honble High Court has discussed the judgment of the Honble Supreme Court in the case Dr. K. Ramulu where it was held that after a conscious decision was taken not to fill up the vacancies particularly when the existing rules were under amendment, it was justified for the respondents to keep the matter pending till amendment took place. This proposition is squarely against the claim of the applicant here. Honble High Court had followed the proposition of law emanating from the decision of the Honble Supreme Court in Dr. K. Ramulus case, which does not support the applicants case.
5. Along with the rejoinder the applicant has filed a copy of order dated 13.11.2007 of the respondents by which candidates in other Disciplines were promoted to the post of Senior Scientist Asstt. W.e.f. 07.11.2007 and it is argued that similar consideration should have been made in her favour.
6. The short point is whether the applicant could have been considered in the month of July,2008 immediately after she completed the prescribed period of three years experience. We do not have the facts relating to other candidates, the dates of their eligibility. But it is seen that they were promoted in 2007; whereas, the applicant got eligibility only in July, 2008. Therefore, she could not have been considered along with others in November, 2007.
6.1 The judgment of Honble Supreme Court in the case of N. Banerjee (supra) was made in the context of applicability of the year of ACRs of candidates for consideration by DPC. It also mentions that DPC for a year should be preferably held on a fixed date. It indicates Ist of April or Ist May of a year for that purpose (vide observations in paragraph-6). Even if we follow these guidelines, by Ist April or Ist May of 2008, the applicant was not eligible. Therefore, there was no question holding DPC either in the beginning of 2008, or on Ist April or on Ist May, 2008 when there was no eligible candidate to be considered on that date, even though vacancy existed on account of creation of additional posts in 2007. It is only in the beginning of 2009 that the applicant had a valid claim to be considered. By then, unfortunately for her, the RRs had been amended. No doubt, the amended RRs do not have retrospective operation. But, by the time, the applicant was to be considered, the RRs had changed and she had to satisfy the new eligibility criteria. She cannot possibly claim that the Rules applicable in 2007 when she was not eligible would govern her case in 2009 by which time the amended Rules had come into effect. Therefore, clearly, the validity of her claim is unsustainable.
7. For the foregoing reasons, we do not see any infirmity in the impugned order dated 25.08.2010. The O.A., accordingly, fails; hence, dismissed.
(Dr. A.K. Mishra) (G. George Paracken)
Member (A) Member (J)
/vinita/