Central Administrative Tribunal - Delhi
Kimti Lal S/O Madan Mohan Sharma vs Delhi Jal Board Through Its on 6 October, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.1349/2010 Misc. Application No.1127/2010 This the 6th day of October, 2010 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) 1. Kimti Lal S/O Madan Mohan Sharma, R/O 5339 Kolhapur Road, Sabzimandi, Delhi-110007. 2. Smt. Vimla Joshi W/O Suresh Chand Joshi, R/O D-5 Type IV, Delhi Jal Board Quarters, Aram Bagh, Paharganj, Delhi. 3. Ram Niwas S/O Daleep Singh, R/O A-19 Suraj Park, Delhi-42. 4. Smt. Usha Rani W/O Hukam Singh Sharma, R/O QU 238, Peetam Pura, Delhi. Applicants (By Shri S. R. Mittal, Advocate ) Versus Delhi Jal Board through its Chief Executive Officer, Varunalaya Phase II, Jhandewalan, Karol Bagh, New Delhi. Respondent ( By Shri Nishakant Pandey, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Kimti Lal and three others were admittedly appointed as Technical Assistants and Adrema Machine Operators in the Adrema section, but on the said section of the respondent Delhi Jal Board having become redundant, they were re-deployed in the cadre of UDCs and LDCs. The only question that is debated in the present Original Application is as to whether the seniority on the basis of which they were re-deployed would count from the date of their re-deployment or from their initial date of appointments on the posts of Technical Assistant/Adrema Machine Operator.
2. Facts on which there is hardly any dispute reveal that the applicants were initially appointed as Adrema Machine Operators vide order dated 18.4.1975. Their initial appointments were made in the erstwhile Delhi Water Supply and Sewage Disposal Undertaking, a wing of the Municipal Corporation of Delhi. Prior to the year 2000, manual bills of water charges were being issued to registered consumers through Adrema section where different categories of technical staff, such as Incharge Adrema, Technical Assistant and Adrema Machine Operators were posted for embossing printing of manual bills, etc. In view of computerization of the entire billing system, services of the staff posted in Adrema section were being utilized for clerical works. As per the case set up by the applicants, they had been representing for merging their seniority in the seniority list of UDCs/LDCs, as there were no promotional avenues available in their channel of service. On the Adrema section having become redundant, employees of the said section were re-deployed in the cadre of UDCs/LDCs in the pay scale of `4000-100-6000 (pre-revised) and `3050-75-3950-80-4590 (pre-revised) respectively. It is the case of the applicants that their representation that their seniority on merger in the cadre of UDCs/LDCs should be such that they should be treated to have been appointed in the said posts from their initial dates of appointment, was accepted by the respondent Jal Board, as may appear from the order dated 20.11.2006, which came to be passed by way of modification/addition in the final seniority list of LDCs appointed between 1.1.1964 to 31.12.1982 and 1.1.1983 to 31.1.1990. In the order aforesaid it is mentioned that consequent upon computerization of water billing system in Delhi Jal Board, the Adrema section had been rendered surplus, and that the technical staff and AMOs of the said section had been merged in the cadre of UDCs and LDCs vide office order dated 21.4.2006. The first applicant was shown at serial number 97-A of the proposed seniority list, while the other applicants were shown at numbers 97-B, 97-D and 97-E respectively. Their names were interpolated in the seniority list between serial numbers 97 and 98. It is the case of the applicants that under pressure from the clerical cadre, the respondent retracted from its stance making a volte face and circulated a seniority list of clerical cadre on 21.1.2009, wherein the position of the applicants has been relegated from serial numbers 97-A, 97-B, 97-D and 97-E to 1159, 1160, 1162 and 1163 respectively. Aggrieved of the seniority list dated 21.1.2009, the applicants made representation and when the same brought no tangible results, they filed OA No.2921/2009 before this Tribunal, which was disposed of vide order dated 11.11.2009, directing the respondents to decide the representation of the applicants within four weeks and pass speaking and reasoned order thereon, with liberty to the applicants that if their grievance may still survive, they could take appropriate remedy in that regard. Before the representation of the applicants could be disposed of pursuant to orders referred to above, the applicant filed the present OA. As would be clear from the facts as mentioned above, the prayer of the applicants is that their seniority having been fixed correctly by interpolating their names in the seniority list of LDCs dated 20.11.2006 in the manner mentioned above, there could be no occasion for the respondents to change the same, and, therefore, they should be continued to be shown at seniority positions as mentioned in the order dated 20.11.2006.
3. Pursuant to notice issued by this Tribunal, the respondent has entered appearance and by filing its counter reply contested the cause of the applicants. It has inter alia been pleaded that the OA deserves to be dismissed for non-joinder of necessary parties whose seniority may be affected if the relief asked for by the applicants is granted. The broad facts as have been referred to above are not in dispute. However, it is significant to mention that the initial appointment of the applicants was made in the erstwhile Delhi Water Supply & Sewage Disposal Unit, a wing of MCD, which subsequently became part of the respondent Jal Board w.e.f. 1.4.1998. Services of the staff posted in the Adrema section, including the applicants, were rendered redundant and surplus. Staff members of the said section were re-deployed in the cadre of UDCs/LDCs, with the stipulation that their seniority would be reckoned in terms of DOP&T instructions dated 2.12.1998, which clearly provide that the past service does not count for seniority in respect of re-deployed surplus staff. Accordingly, as per policy decision taken with regard to these surplus staff, the respondent vide letter dated 10.2.2006 directed all the concerned redundant and re-deployed staff including the applicants, to submit their willingness to join the new cadre in terms of DOP&T instructions dated 2.12.1998, and all the applicants vide their consent letters gave their willingness to join the new cadre in terms of the said DOP&T instructions. These facts, it is stated, have been concealed by the applicants. We may at this very stage refer to order dated 10.2.2006, vide which, after the Adrema section was rendered redundant, the applicants and others in the said section were re-deployed. The same, insofar as is relevant, reads as follows:
Consequent upon computerization of water billing system in Delhi Jal Board, the Adrema section in DJB has been rendered redundant. The Technical Assistants and AMOs of Adrema sections are being redeployed in the cadre of UDCs and LDCs in the pay scale of Rs.4000-100-6000 and Rs.3050-75-3950-4590 respectively. The seniority of the redeployed staff shall be reckoned in terms of DOP&T O.M. No.15/3/98-CS-III dated 02/12/1998. Finance has concurred to the proposal on 17/11/2005.
The following Technical Assistants and Adrema Machine Operators are therefore directed to submit his/her willingness or otherwise to join the new cadre in terms of DOP&T O.M. No.15/3/98-CS-III dated 02/12/1998 within 30 days of the issue of this order. Available on records are also separate willingness given by all the applicants with reference to order dated 10.2.2006 adverted to above. The fixing of seniority of the applicants vide order dated 20.11.2006 by interpolating their names in the seniority list at serial numbers 97-A, 97-B, 97-D and 97-E is not in dispute. However, the said seniority list was subject to objections, if any, to be filed within sixty days. We may refer to the part of the order dated 20.11.2006 as mentioned above, which reads, Objections if any may be filed with the undersigned within 60 days. It is the case of the respondents emanating from the order dated 21.4.2010 that came to be passed during pendency of the present OA in consequence of directions issued by this Tribunal, and has been annexed with the counter reply, that number of affected officials raised objections against the seniority list dated 20.11.2006, and that the ministerial cadre association had also filed objection for interpolating the names of Technical Assistants and AMOs from the date of their initial appointment on the ground that the DOP&T OM dated 2.12.1998 says that no change is contemplated in the present policy that the past service rendered prior to re-deployment should not be counted towards seniority in the new post which the surplus employees may join on re-deployment. It is in acceptance of the objections raised by the concerned officials and the ministerial cadre association that order dated 21.4.2010 came to be passed, wherein it has been ordered that seniority of re-deployed officials would be reckoned from the date of their re-deployment in the new cadre. DOP&T instructions dated 2.12.1998 relied upon by the respondent, reads as follows:
11.0 Benefit of Past Service after Redeployment/Readjustment, as the case may be 11.1 No change is contemplated in the present policy that the past service rendered prior to redeployment should not count towards seniority, in the new organization/new post which a surplus employee joins after he is redeployed. The same rule will also have to be applied in the case of those readjusted after redeployment.
4. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. We may mention at the very outset that the order dated 21.4.2010 that came to be passed during the pendency of the present OA has not been challenged even though, a rejoinder has been filed by the applicants, wherein it has been pleaded that the respondent has tendentiously used the word redeployed in respect of the applicants, whereas, in fact their cadre was merged in the clerical cadre and their inter se seniority fixed in the cadre on the basis of their initial appointment. The guidelines relied upon by the respondent, it is the case f the applicants, are being misread, misconstrued and misinterpreted. The applicants have indeed raised the plea as regards their seniority, which, according to them, should be fixed as initially done, and non-applicability of the DOP&T instructions relied upon by the respondent, but there is no challenge to the order dated 21.4.2010. We may, however, not dismiss this Application on the ground that the order dated 21.4.2010 has not been challenged. The plea raised by the respondent as regards the Application requiring dismissal for non-joinder of necessary parties, however, appears to be correct. Surely, if the applicants are to be assigned seniority as mentioned in the order dated 20.11.2006, number of employees in the LDC and UDC cadre would become junior to them. The applicant ought to have joined at least some of them as party respondents in a representative capacity. However, the plea raised in the rejoinder as regards non-joinder of necessary parties, is that the respondent itself issued the order dated 21.1.2009 whereby the applicants have been relegated from their seniority at serial numbers 97-A, 97-B, 97-D and 97-E to much inferior positions at numbers 1159, 1160, 1162 and 1163, i.e., they have been superseded by about 1160 persons who were junior to them, and that since the respondent is taking care of the interests of the affected persons, there was hardly any need to implead a wilderness of 1160 persons individually. It is also pleaded that the order in OA No.2921/2009 dated 16.11.2009 was passed by the Tribunal in the presence of counsel for the respondent and nothing prevented the counsel from raising this issue at that time. We do not find the plea raised by the applicants to be valid. In our considered view, if the applicants may succeed in this OA, number of persons would become junior to them, and such persons as regards their seniority have individual rights, and without hearing them in the matter, their rights could not be adversely affected. Even on merits of the case, we do not find that the applicants may have a case. The order dated 10.2.2006 in clear terms stipulates that the seniority of the re-deployed staff would be reckoned in terms of DOP&T OM dated 2.12.1998. In the very order re-deploying the applicants, the manner in which their seniority would be fixed, has been clearly mentioned. The applicants were asked to give their willingness for their re-deployment. They gave their willingness in terms of the order dated 10.2.2006 within stipulated period. Having done so, it would not be open for the applicants to question the applicability of DOP&T OM dated 2.12.1998. If the applicants were not to accept the terms of the order dated 10.2.2006, they would have been out of employment. It is too well established a proposition of service jurisprudence that in case a post is abolished, the person occupying the said post would have no right. However, considering the hardship that an employee may have to go through because of abolition of a post, the Government has framed scheme for re-deployment, but surely, it is up to the concerned employee to opt for re-deployment or to quit the job. If he may, however, choose to give his willingness for a re-deployment post, the same has to be on the terms and conditions as may be offered to him. Further, the applicants suppressed the material fact of their giving willingness to join the posts of UDCs/LDCs in terms of order dated 10.2.2006, and would thus not be entitled to any discretionary relief from this Tribunal. The instructions dated 2.12.1998 are absolutely clear and we do not find any merit in the plea raised by the applicants that it was a case of their absorption in the cadre of UDCs/LDCs. There are some pleadings raised in the Application and the rejoinder as regards discrimination, but nothing in that regard has been urged during the course of arguments. The only contention raised by the learned counsel representing the applicants that once, the respondent had assigned to the applicants seniority by incorporating their names at serial numbers 97-A, 97-B, 97-D and 97-E in the seniority list dated 20.11.2006, it cannot turn around now to change its stand, in the facts and circumstances of the case, does not appear to be correct. It may be recalled that while interpolating the names of the applicants in the seniority list at serial numbers 97-A, 97-B, 97-D and 97-E, objections were invited. Objections were indeed filed, and it is in consequence of the objections received by the respondent that the order dated 21.4.2010 has come to be passed. Seniority list dated 20.11.2006, in the circumstances as mentioned above, cannot be said to be final. In any case, it is not the case of the applicants that they have not been heard with regard to objections raised by others against the seniority list dated 20.11.2006.
5. In view of the discussion made above, we find no merit in this Original Application and thus dismiss the same, leaving, however, the parties to bear their own costs.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/