Central Administrative Tribunal - Delhi
Jagpal Singh vs Municipal Corporation Of Delhi on 31 May, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI O.A. No. 2601/2010 New Delhi, this the 31st day of May 2011. HONBLE MRS. MEERA CHHIBBER, MEMBER (J) HONBLE DR. A.K. MISHRA, MEMBER (A) Jagpal Singh S/o Shir Stya Pal, House No.E-123, MCD Colony, Azadpur, Delhi-110 033. ..Applicant By Advocate: Shri K.G. Sharma. Versus 1. Municipal Corporation of Delhi Through its Commissioner, Town Hall, Chandani Chowk, Delhi. 2. The Commissioner Municipal Corporation of Delhi Town Hall, Chandani Chowk, Delhi. 3. Director (Horticulture) Municipal Corporation of Delhi Old Tourist Camp Site, J.L. Nehru Marg, Delhi. 4. Additional Deputy Commissioner (Horticulture) Municipal Corporation of Delhi Old Tourist Camp Site, J.L. Nehru Marg, Delhi. ..Respondents By Advocate: Shri R.K. Jain along with Shri S.S.Khandpal, Director Horticulture). ORDER (ORAL)
Mrs. Meera Chhibber, Member (J) Applicant has sought a direction to the respondents to promote him from the date on which other 55 candidates were promoted to the post of Chaudhary as per the combined merit list prepared on the `basis of performance in the trade test.
2. It is submitted by the applicant that he was initially appointed as Mali in the Horticulture Department of MCD on 01.04.1990. He was made Acting Chaudhary with effect from 01.01.1994 and since then he has been working in the same capacity. Grievance of the applicant is that in 2005, a trade test was conducted, wherein he was placed at Sl.No.55 in the combined merit list. Though 56 candidates were offered appointments on the basis of aforesaid tests but the applicant has been left out even though he ranked at Sl.No. 55. He has thus filed the present OA for the relief mentioned above.
3. Respondents have opposed this OA. They have stated that the applicant has not come up before the Honble Court with the clean hands and has suppressed the real facts of the matter before the court. It is submitted that the post of Garden Chaudhary has to be filled up as per the recruitment regulations and only the candidates possessing essential qualification of Matric/High School with the Agriculture as one of the subject and 8 years of regular service experience as Mali, can be considered. It is further submitted that passing of the trade test is one of the essential conditions for promotion to the post of Garden Chaudhary. It is further submitted that the last trade test was held on 27.3.2005 for promotion for 55 posts. However 5 posts were kept vacant vide orders dated 12.4.2005 by the Honble High Court of Delhi in Writ Petition ( C) No.5209/2005 in case titled Bir Pal Singh & Others Vs. MCD. Accordingly, the promotion letters were issued to 50 candidates only who had taken over the charge of Garden Chaudhary. 5 posts were kept vacant in terms of the court order. They had thus prayed that the OA may be dismissed.
4. They have admitted that the name of Shri Jagpal Singh appeared at Sl.No.55 of the combined merit list of 419 candidates but he was not found eligible for promotion from Mali to Chaudhary as he could not obtain sufficient marks in the said trade test and his name was not included in the final merit list consisting of 55 candidates prepared by the aforesaid agency. The applicant was not included among the 55 short listed candidates, therefore, his name was not considered for appointment to the post of Chaudhary. As and when the trade test is conducted, again applicant can appear in the same and his name shall be considered, if he is found eligible.
5. It is stated by the respondents that the facts of Chiman Singh are slightly different and not applicable to the present case, inasmuch as Shri Chiman Singh had obtained more marks in the trade test than the applicant. Shri Jagpal Singhs name was not included in the final merit list of 55 candidates short listed for promotion to the post of Chaudhary.
6. They have explained that the process of promotion including the interview and written test of the eligible candidates, (2500 in number) was assigned to a professional organization of Government of India, namely, Educational Consultants of India Limited, which is an autonomous body fully owned by the Government of India under the Ministry of Human Resources Development, which is renowned for its various activities like appointments, recruitments, admission tests for various reputed educational institutions.
7. Subsequently, respondents had filed additional affidavit explaining therein as follows:
(i) Hem Raj Singh and Others had filed Writ Petition ( C) No.6572/2002 before the Honble High Court challenging an office order dated 19.2.2002 issued by the respondents for promotion to the post of Chaudhary.
(2) That vide order dated 26.2.2004, the Honble High Court was pleased to quash the office order dated 19.2.2002 and directed the respondents to initiate the process of promotion and identify the year-wise vacancies for the post of Chaudhary and to fill the same.
(3) That on 13.4.2005, the respondents issued the year-wise vacancies position of the post of Chaudhary to be filled up through promotion.
(4) That the applicant has become eligible only in the year 1998 for consideration for promotion to the post of Chaudhary as he had completed 8 years of service in the year 1998 and he belongs to general category.
(5) That the respondents have short-listed the candidates against the year-wise vacancies and promoted the eligible candidates against the year-wise vacancies considering the minimum 8 years of their service as per the RRs and their respective merit position.
(6) That the applicant had become eligible for consideration for promotion to the post of Chaudhary only in the year 1998. There were 4 general posts of Chaudhary. The persons, namely, Mehender Pal Singh, Satender Kumar, Brijeer, Pramod Kumar were promoted as they were higher in the merit list than the applicant.
(7) That against the 2 General vacancies of the year 1999, persons, namely, Mukesh Kumar and Suresh Kumar were promoted as they were higher in the merit list than the applicant.
(8) That against the 3 General vacancies of the year 2000, persons, namely, Ramji Lal, Silochand & Bijender were promoted as they were higher in the merit list than the applicant.
(9) That against the 2 General vacancies of the year 2001, persons, namely, Inderpal Sharma & Sukhpal were promoted as they were higher in the merit list than the applicant.
(10) That against the 2 General vacancies of the year 2002, persons, namely Mahesh Chand & Ranbir were promoted as they were higher in the merit list than the applicant.
(11). That against the 4 General vacancies of the year 2003, persons, namely Birpal Singh, Nandkishore, Kishapal & Kalu Ram were promoted as they were higher in the merit list than the applicant.
(12) That against the 3 General vacancies of the year 2004, persons, namely, Chhiman, Rishiraj & Mahipal Singh were promoted as they were higher in the merit list than the applicant.
8. They had thus stated that the applicant has not been discriminated against in as much as none below the applicant had been promoted.
9. We have heard both the counsel and Shri S.S.Khandpal, Director Horticulture, who was present in court. He informed us that respondents are processing the case for creation of 213 more posts of Chaudhary, therefore, the 8 vacancies, which had arisen from 2005 to 2010, namely one for 2005, one for 2008, two for 2009 and four for 2010 would also be filled up after the posts are created and the trade test which is mandatory as per the recruitment rules is held. Counsel for the respondents submitted since holding of trade test involves lot of expenditure, respondents are not holding trade test every year. He also informed us 5 persons have been promoted now in 2010 after the interim order has been vacated.
10. In view of the explanation given above, we are satisfied that applicant could not have been promoted in 2005 because only 50 persons were promoted who were all above the applicant in the short listed list. 5 posts were directed to be kept vacant, so naturally they could not have been filled. However, we were informed that after 2005 also 8 vacancies have become available in the post of Chaudhary but they are not being filled up. When we asked the Director Horiculture, Sh. S.S. Khandpal to explain what steps have been taken by the respondents to fill up these vacancies, he informed us that further promotions would be made only after the trade test is held and after the post of Chaudhary are created. This explanation is not justifiable for the simple reason that if Malis are awaiting their promotion and vacancies are available, they cannot be made to await indefinitely on the ground that the trade test would be held only after sufficient vacancies are available. Creation of posts may take a long time. Admittedly, 1 vacancy for 2005, 1 for 2008, 2 for 2009 and 4 vacancies for 2010 total 8 vacancies are available. It is not disputed by the respondents that the applicant is senior-most Mali awaiting his promotion. Perusal of the recruitment rules show that the posts of Chaudhary is to be filled by way of promotion by selection after holding a trade test. It is therefore necessary to hold the trade test before regular promotions can be made as it has to be made on the basis of merit. The question is, in case creation of posts is taking time and respondents feel trade test can be held only when sufficient number of vacancies are available, should it mean that the person who are senior enough should await indefinitely till the trade test is conducted. We do not think that is a good justification for denying promotion to the persons, who are in the feeder category. After all, if the vacancies are available naturally those who are aspiring for promotion have legitimate expectations of being considered for promotion.
11. In these circumstances, we had given one suggestion to the Director Horticulture to consider the persons, who are due for promotion on ad hoc basis as per their seniority subject to their suitability by making it clear in the order that they would not have any right to claim a regular promotion on the basis of such promotion as their promotion would be dependant on the merit list to be prepared by the respondents on the basis of trade test to be conducted later. The officer accepted the suggestion provided the above clarifications are noted in the order.
12. In view of above, though the relief as claimed by the applicant cannot be granted, we direct the respondents to consider the applicant and others who are in the feeder category and senior enough for promotion to the post of Chaudhary on ad hoc basis as per their seniority subject to their suitability by making it clear in the order itself that this is going to be a stop gap arrangement till regular promotions are made after the trade test is conducted. We also make it clear that this ad hoc promotion would not give any right to such persons to claim regular promotion, as that would depend on the merit list to be prepared by the respondents as per merit after conducting the trade test.
13. With the above directions this OA stands disposed of. No order as to costs.
(DR. A.K. MISHRA) (MRS. MEERA CHHIBBER)
MEMBER (A) MEMBER (J)
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