Central Administrative Tribunal - Delhi
Shiv Charan Prasad T.No.3715 vs Union Of India Through on 1 March, 2011
Central Administrative Tribunal Principal Bench, New Delhi T.A.No.1427/2009 New Delhi, this the 1st day of March 2011 Honble Dr. K.B.S. Rajan, Member (J) Honble Dr. Veena Chhotray, Member (A) Shiv Charan Prasad T.No.3715 s/o Shri Shambhu Prasad r/o Flat No.14, Plot No.47 Punchmahal Apartment I P Extension Patparganj, Delhi-92 ..Applicant (By Advocate: Shri N L Bareja) Versus Union of India through 1. The Secretary to the Govt. of India Ministry of Tourism Transport Bhawan, Sansad Marg, New Delhi-1 2. The Chairman-cum-Managing Director (CMD) ITDC, 5th Floor, Scope Complex Lodhi Road, New Delhi-3 3. The Deputy General Manager (Personnel), Ashoka Hotel, 50B, Chankyapuri New Delhi-21 ..Respondents (By Advocate: Shri Arvind Kumar) O R D E R
Dr. K.B.S. Rajan:
The issue involved in this case could be congealed in a nutshell as hereunder:-
2. Under the administrative control of the India Tourism and Development Corporation (ITDC), is functioning Hotel Ashoka at Delhi. In the Food and beverage services, the non executive cadre consists, inter alia, of Utility Worker (by Direct Recruitment), Commis de Rang Gr. I(50% by promotion from below and 50% by Direct Recruitment), Sr. Commis de Rang (By time bound promotion), Demi Chef de Rang (by promotion) and Chef de Rang (or Steward) [50% by promotion and 50% by direct recruitment]. The applicant initially called for selection to the post of Steward in 1972 was however offered the post of Plate Boy and on his acceptance of the same, was imparted training followed by regular appointment as Plate Boy in the scale of Rs.160-310 w.e.f. 15-08-1975 and later on was promoted as Waiter (Commis-de-Rang) w.e.f. 17-11-1978.
3. When another Hotel by name Akbar Hotel was to be wound up sometimes in 1986, the ITDC had accommodated the employees of erstwhile Akbar Hotel in Ashok Hotel and without at the same time affecting the prospects or promotion/elevation of the existing employees. Such of the employees of the Ashok Hotel, who were eligible for automatic elevation would be elevated w.e.f. the date of their eligibility and they would rank senior to the ex employees of Akbar Hotel appointed afresh in that particular level provided their date of elevation is anterior to the date of induction of the Akbar Hotel employees. The Akbar Hotel staff were accommodated against supernumerary posts.
4. The Respondents notified certain vacancies of Chef de Rang to be filled up from out of the departmental candidates for which the eligibility condition is 8years satisfactory service as Sr. Commis De Rang. According to the applicant, his candidature was not considered. Again, in 1996 such a notification was issued and according to the applicant he was not considered.
5. In January, 1996, vide Annexure P-7 an updated seniority list was published wherein the names of various erstwhile Akbar Hotel employees figured in, and the Union had represented against the same, vide annexure P-8, as the understanding at the time of induction of the ex Akbar Hotel Employees was that the seniority of the Ashok Hotel Employees would not be disturbed. However, there appears no action taken in pursuance of the appeal of the Union.
6. Notification inviting applications from the departmental candidates for appointment to the post of Chef de Rang was again issued twice, once in January, 1996 and another in November, 1998 (Annexure P-6 and P-9 respectively) and it is on the issue of the notification in 1998 that the applicant had moved the High court in C.WP. 6072 of 1998 seeking the following relief(s):-
for a writ of mandamus directing the respondents to the extent that the petitioner be declared to have been promoted to the post of Sr. Commis De Rang in the year 1984 when he became entitled to such automatic elevation in terms of R & P Rules;
for a writ of mandamus directing the respondents to effect modification in the seniority list issued in 1996 based on the representation made by the applicant and others to ensure that the inducted Akbar Hotel employees having been given fresh appointment did not rank senior to the employees of Ashok Hotel;
For a writ of mandamus directing the respondents to consider the name of the petitioner for the post of Chef De Rang in the year 1992 or thereafter 1996 when the posts were available which were consumed by appointing the ex-employees of the Akbar Hotel.
7. Respondents have contested the petition. Certain preliminary objections have been raised by them and succinctly, the same are as under:-
The petition suffers from the vice of inordinate delay and laches. In this regard, they have also referred to certain decisions of the Apex court [vide P.S. Sadasivaswamy vs State of Tamil Nadu (AIR 1974 SC 2271), B.S. Bajwa and Anr vs State of Punjab and others reported in 78 FLR 560 SC, P. Venkataswamy vs Karnataka State Road Transport Corporation, (57 FLR 22)] Non maintainability on account of non impleadment of necessary party i.e. those who would be affected in case the petition is allowed and the seniority list of such persons would be revised to their detriment;
The petitioner being a workman, should have approached the labour court where alternative efficacious remedy is available [vide State of M.P.vs Bhailal Bhai (1964 SC 1006) and Basant Kumar Sarkar vs Eagle Rolling Mills (AIR 1964 SC 1260), Than Singh Nathmal vs Superintendent of Taxes (AIR 1964 Sc 1419), T.K. Rabari vs State of Gujarat reported in 1989 II LLJ 98] As regards the merit of the matter, the respondents have contended that the petitioner was never eligible for promotion to the post of Chef De Rang, a selection post, in his career in the hotel.
8. The respondents, on merit, contended that though the applicant had put in the requisite experience, he could not be accommodated as there was no available post in the higher scale of Sr. Commis de Rang. The interest of the petitioner was never harmed because of appointment of some employees of erstwhile Akbar Hotel in Ashok Hotel. In respect of notification of 1996, for the post of Chef De Rang, the applicant could not fulfill the requisite eligibility condition. As regards the seniority list, the list showed only the actual seniors to the applicant as senior to him and no junior had been reflected as senior to him in the seniority list.
9. In his rejoinder, the petitioner rebutted all the contentions of the respondents. As regards delay, the petitioner contended that a continuous right in regard to fixation of seniority and promotion; as regards non-joinder, it is contended that the TA does not suffer the vice of non-joinder of parties; as regards alternative remedy, it has been stated that the Apex court has held that the I.D. Act does not apply to the Central Public Sector Undertakings. The hotel being directly controlled by the Tourism Ministry, writ jurisdiction is fully available. As regards the last preliminary objection, the petitioner submitted that his claim has never been for direct appointment as Chef De Rang but only as a Sr. Commis De Rang followed by appointment as Chef De Rang.
10. The case, on having been transferred has been registered in the Tribunal as a Transfer Application.
11. Counsel for the applicant gave the entire history of the case and submitted that the applicant who was to have been considered for the post of Sr. Commis De Rang at the relevant point of time had not been considered and those inducted ex Akbar Hotel Staff who should not have been made senior to the applicants have been shown as senior. Thus, the twin mistakes committed by the respondents has resulted in violation of their own commitment as contained in Annexure P-5.
12. Counsel for the respondent himself was not available but his proxy was present. His request for an adjournment was not acceded to in view of the fact that the case being of 1998 and transferred in 2009, there was no justification in getting the case adjourned. However, the counter filed by the respondents being available, the same had been thoroughly to be gone into.
13. Arguments were heard and documents perused. As regards delay and laches, it is to be stated that the applicant did question at the relevant point of time itself, about the unintended benefit afforded to the inducted employees by assigning higher seniority in the 1996 seniority list. Again, the union had also represented against the same. No action was taken by the respondents. In 1998 once again, there was a notification inviting application from the Sr. Commis De Rang, wherein the name of the applicant was not found. It was at this time that the applicants grievance aggravated as his entitlement was ignored and those of the inducted employees with higher seniority would be the beneficiaries. It is at this juncture that the applicant had moved the High court under Art. 226. Thus, there cannot be said to be any delay in the applicants approaching the Court. As regards the non joinder, the applicants grievance is on the ground that the respondents have ignored their own commitment that in the induction of the ex Akbar hotel employees, the career prospects of the Ashok Hotel Employees would not be affected at all and all those who were at the relevant point of time in their respective position would be treated as senior to the inducted employees. A policy having been decided for a challenge against non implementation, there need not be any necessity to implead those who are the beneficiaries of such inaction. This was the argument advanced by the counsel and it does have substance.
14. As regards the merits of the matter, the respondents have contended that the applicant has never become eligible for the post of Chef De Rang. In fact, in the rejoinder, the applicant has clearly stated that his claim is first to be promoted as Sr. Commis De Rang which is a time bound promotion and as such, the respondents were under the misconception that the claim of the applicant is directly to the post of Chef De Rang (Steward). Their contention must be on the basis of the fact that the petition has been filed at a time when the notification was issued for selection for the post of Steward. But the petition clearly maintains that the first claim of the applicant is for automatic elevation to the post of Sr. Commis De Rang. Thus, the view that the applicants claim is for promotion as steward direct has to be dispelled.
15. Insofar as his claim to the said post of Sr. Commis De Rang is concerned, it has to be seen whether the applicant is entitled to and even if he is so entitled to, whether there is any legal obstacle in grant of relief.
16. The Recruitment Rules are specific that the post of Sr. Commis De Rang is filled up by what is called, automatic elevation. If so, the question of availability of post or not does not arise as the same is a time bound promotion. As such, when admittedly the applicant had been promoted to the post of Waiter (Commis-de-Rang) as early as in 1978 and six years experience in that post would make the individual eligible for higher post of Sr. Commis De Rang. As such, the applicant is right that from 1984 itself he ought to have been considered for the post of Sr. Commis. De Rang. This was not done. The applicant had, vide para 14 of the petition contends, Have the petitioner been elevated to the post of Sr. Commis De Rang in the year 1984, he would have been also promoted to the post of Demi Chef De Rang in the year 1992 and would have been eligible for consideration for promotion to the post of Chef De Rang in 1996 when 10 posts were filled. By not implementing the circular dated 1986 placed at Annexure P-5 in letter and spirit and the fact that the ex employees of the Akbar Hotel have been shown senior to the employees of the Ashok Hotel, the petitioner as well as similarly situated employees of the Ashoka Hotel had been made to suffer in the past as also are going to meet the same fate in future The primary responsibility in respect of consideration of the applicant for time bound promotion to the post of Sr. Commis. De Rang is of the respondents, which they had failed to consider. The respondents had not considered the case of the applicant when he applied for the post of Chef De Rang in 1992. So was the case in 1996, and it was in 1996 when the seniority list was published and the applicant through the Union but of no avail. The spirit manifested by the respondents in entertaining the outsiders i.e. the employees of Akbar Hotel which reflects the care for the welfare of the low paid employees with the assurance to the Ashoka Hotel employees that the same would not be detrimental to their career prospects certainly would have raised the hope of the applicant that the legitimate dues of the applicant through time bound promotion would have been duly considered and when things did not so happen, he did expect that the omission would have been made good by considering the case for higher post to which he would have been eligible had the applicant been considered for the time bound promotion.
17. Notwithstanding the above, the fact that claiming in 1998 for the post of Sr. Commis De Rang due in 1984 cannot but be branded as a belated claim. But mechanically, the case cannot be dismissed on account of such delay. The limitation law does apply when the claim not made at the appropriate time, entails certain indefeasible right to any other which would, if the stale claim is granted, be hampered. In this regard, the decision of the Apex Court has, in the case of Union of India v. Tarsem Singh,(2008) 8 SCC 648, relating to the limitation aspect held as under:-
7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.
18. In the instant case, under the normal circumstances, the case of the applicant would have been rejected on the ground of limitation or laches as the applicant did not come forward to claim his time bound promotion. In other words, his claim should not affect the interest of other Ashoka Hotel Employees. However, this case is to be viewed slightly from a different angle; The induction of Akbar Hotel made the case of the applicant slightly different. The matter has to be handled in the same fashion as in the case of P.P.C. Rawani (Dr) v. Union of India, (1992) 1 SCC 331. That was a case where while certain medical officers duly appointed through UPSC were having their own seniority certain medical officers not appointed through normal mode of selection but on ad hoc basis and continued for a long time wanted regularization which if so allowed would have unduly affected the seniority and promotion chances of the regularly appointed medical officers. As such, a via media was worked out and the Apex Court held inter alia that there shall be a separate seniority list for the ad hoc medical officers whose appointment would be against supernumerary posts only and their channel of promotion would not in any way affect that of the other regularly appointed medical officers. The directions inter alia are as under:-
(1) xxxx (2) In order to ensure that there is no disturbance of the seniority and the promotional prospects of the regularly recruited doctors there will be a separate seniority list in respect of the appellants and their promotions (about which directions are given below) shall be regulated by such separate seniority list and such promotions will only be in supernumerary posts to be created as mentioned below.
(3) xxxxxx (4) In order that there may be no conflict or any possibilities of reversion, the post to which an appellant will be promoted (whether as Senior Medical Officer or Chief Medical Officer or on further promotion therefrom) should only be to a supernumerary post. Such number of supernumerary posts should be created by the government as may be necessary to give effect to the above directions. No promotion will be given to any of the appellants in the existing vacancies which will go only to the regularly appointed doctors.
19. The spirit in the above directions is that by way of induction of the ad hoc officers, there shall be no depletion in the career prospects of the regularly appointed doctors. A parallel drawn on the above lines would mean that the Akbar Hotel staff on induction would have their career prospects in such a way that the same should not affect the prospects of those who had been already in service (like the applicant) in Ashoka Hotel. The omission to consider the applicant for automatic elevation to the post of Sr. commis De Rang telescopically resulted in the applicant being deprived of the higher post of Chef De Rang as well. This injustice to the applicant could well be removed by considering the applicant for the said post w.e.f 1984 i.e. 6 years after his having been promoted on regular basis as Commis De Rang in 1978 and further promotion could well be after he has put in the requisite years of service as Sr. Commis De Rang and subject to fulfillment of other conditions of selection.
20. The question then is how about remuneration. Should it be No work no pay or his not having been promoted is not due to his fault and hence he is entitled to arrears of pay and allowance? In Punjab National Bank v. Virender Kumar Goel,(2004) 2 SCC 193 the Apex Court negated the prayer of the Bank for invoking the doctrine of No work no pay, stating as under:-
The applicants were out of their jobs for no fault of theirs. Even otherwise, party in breach of contract can hardly seek for any equitable relief.
21. In the instant case also, we find that there has been a breach on the part of the respondents in not ensuring that the seniority and service conditions of Ashoka Hotel employees though committed by them. The delay in approaching for redressal of grievance should however, be considered while considering the entitlement to the payment of back wages. It is not known whether the applicant was, in the later part, promoted to the post of Sr. Commis De Rang and further, and if so, his entitlement should be worked out as under:-
Notional promotion to the post of Sr. commis De Rang from 17-11-1984 (the date he completed six years of service as commis De Rang ie. 17-11-1978) till the date the applicant had been promoted to the post of Sr. Commiss De Rang.
Promotion on actual basis with pay and allowances from the date he had been promoted to the above post.
Notional promotion from the date the applicants junior (who had been promoted as Sr. Commis. De Rang) till the date of the applicants having become chef De Rang (Steward) Promotion on actual basis from the date he has been holding the post of Steward; in case the applicant had not been promoted to this post at all, then half the arrears of pay and allowances from the date of promotion to the post of Steward from the date till date.
22. In order to accommodate the applicant as Steward, the respondents could allot one of the posts of Chef De Rang available in the Ashoka Hotel and if the same results in reversion of any of the individuals, it is left to the department to create supernumerary post. Such a creation of supernumerary post having already been created when the respondents accommodated the Akbar Hotel staff, there should be no problem in the creation of such post.
23. The TA is allowed on the above terms. This order shall be complied with, within a period of forty-five days from the date of communication of this order.
24. In that event, he be not paid any higher salary as he was not holding the higher post. The promotion be notional in the level of Sr. Commis De Rang and his entitlement to the post of Chef De Rang be made and if required, supernumerary post should be created in the grade of Chef De Rang to accommodate the applicant subject to his fulfilling the conditions for such promotion. No costs.
( Dr. Veena Chhotray ) ( Dr. K.B.S. Rajan ) Member (A) Member (J) /sunil/