Central Administrative Tribunal - Delhi
J.P.S. Rana vs Govt. Of Nct Of Delhi Through Its Chief ... on 29 July, 2010
Central Administrative Tribunal Principal Bench OA No.1181/2009 New Delhi this the 29th day of July, 2010. Honble Mr. Shanker Raju, Member (J) Honble Dr. (Mrs.) Veena Chhotray, Member (A) J.P.S. Rana, G-3, MCD Colony Hospital, Kalkaji, New Delhi. -Applicant (By Advocate Ms. Avnish Ahlawat) -Versus- 1. Govt. of NCT of Delhi through its Chief Secretary, Indra Prastha Sachivalaya, I.P. Estate, New Delhi. 2. The Principal Secretary-cum-Director (Technical Education) Directorate of Training & Technical Education, Muni Maya Rain Marg Pitampura, Delhi. 3. The Principal, G.B. Pant Polytechnic, Okhla, New Delhi. 4. UPSC, through its Chairman, Shajahan Road, Delhi. 5. Shri Has Raj (F.I. Production Engineering) through: Principal Aryabhat Polytechnic G.T. Karnal Road. 6. Ved Prakash (WSI), Carpenter (through Principal G.N.D. Polytechnic) Sectors-14-15, Rohini, Delhi. 7. Mahesh Pal (WSI), Sheet Metal (through Principal Pusa Polytechnic Okhla, New Delhi. 8. Shashi Bhushan (F.I. Mechanical Engineering), through G.B. Pant Polytechnic, Okhla, New Delhi. 9. Virender Singh (WSI), Welder (through Principal Pusa Polytechnic), Pusa, New Delhi. -Respondents (Official respondents through Advocate Shri Vijay Pandita) (Private Respondents through Advocate, Shri Ajesh Luthra) O R D E R Honble Mr. Shanker Raju, Member (J):
Applicant through this OA has assailed respondents order dated 30.4.2007, whereby pursuant upon decision of the Tribunal in OA-188/2007 his claim against seniority list of Workshop Instructors/Instrument Repairer of various trades of Polytechnic under the Government of National Capital Territory of Delhi has been turned down. Also assailed is the seniority list issued on 16.03.2007, which has become final. Applicant has also sought correct fixation of seniority on combined panel and consideration through review DPC for promotion to the post of Foreman Instructor after finalization of seniority list. Promotion of respondents No.5 and 8 has also been assailed being ineligible.
2. At the outset, we do not adjudicate on promotion of respondents No.5 and 8 and the challenge made thereto. As such the OA is restricted to determination of seniority and consequent promotion to the applicant.
3. It is trite in law that seniority being a civil right can only be infringed by valid rules, as held by the Apex Court in State of U.P. v. Dinkar Sinha, (2008) 1 SCC (L&S) 38. It is also held that in the matter of seniority the same would operate for career progression if settled under statutory rules governing it, by the Apex Court in Md. Raisul Islam & Ors. v. Gokul Mohan Hazarika & Ors., 2010 (6) SCALE 643.
4. Applicant on notification of vacancies for the post of Workshop Instructor in Refrigeration got his name forwarded through employment exchange on fulfilling the eligibility condition appeared for interview on 20.7.1995. The selection Board met from 1.8.1995 to 5.8.1995 for preparing select panel and waiting list meant for different trades to the post of Workshop Instructor. Applicant on the basis of a panel was sponsored on 8.12.1995 to G.B. Pant Polytechnic but the post was not offered to him. However, on 1.1.1996 offer of appointment was issued to the applicant. Thereafter he was medically examined and ultimately joined as Workshop Instructor (Refrigerator) on 8.1.1996. The next promotional post is Foreman Instructor for which applicant fulfilled the eligibility criteria. The feeder categories which are eligible are Instructors/Instrument Repairer/Mechanic/Motor Mechanic, Electrician, Skilled workers/Lab. Technician and Workshop Technician with 11 years of service in the grade. A tentative seniority list was issued on 14.12.2004, against which objections were sought. Applicant on the basis that as per Delhi Administration Seniority Rules, 1965 the seniority should be assigned on the basis of a consolidated order of merit. The seniority when not settled led to filing of OA-188/2007, which was disposed of with direction to make representation. However, keeping in light that seniority was not settled in respect of applicant and a DPC was to be held in February 2007, led to OA-486/2007, which was dismissed as withdrawn with an observation that in case representation is disposed of, the same can be challenged. As the final seniority list was issued on 15.3.2007 and the representation of the applicant was turned down on 30.4.2007 led to challenge in OA-985/2007. However, during the course of arguments when the seniority issue came into being, with liberty to the applicant to rely upon seniority rules, OA was withdrawn.
5. Learned counsel of applicant stated that the only rules which determine the seniority in Workshop Instructor cadre are Delhi Administration Seniority Rules, 1965 and as per Rule-5 the relative seniority of all direct recruits shall be determined by the order of merit and if the initial appointment is on temporary basis, confirmation would determine the seniority. However, learned counsel of applicant on the basis of RTI information, served upon others, stated that a consolidated merit list has been prepared by the respondents but the document is now missing, clearly indicates that the seniority rules were followed for preparing the consolidated list, yet have not been given effect to while preparing the seniority list. However, Rule 9 of the seniority rules has been relied upon to contend that relative seniority of persons appointed to various posts in the same grade requiring different qualifications is by a consolidated order and shall be determined by the consolidated order of merit drawn up and in such an event it is stated that keeping in light the merit position of the applicant seniority shall have to be reckoned from the date of merit, irrespective of the date of joining, which makes applicant eligible for the post of Foreman Instructor and non-consideration on eligibility the stand taken by the respondents contravenes Fundamental Right of applicant for being considered for promotion and is in violation of Articles 14 and 16 of the Constitution of India.
6. On the other hand, respondent No.5 against which ineligibility has been alleged in promotion, when the relief has not been pressed, we are not adjudicating on this issue.
7. However, learned counsel of official respondents Shri Vijay Pandita has rebutted the contentions and took a preliminary objection of plural remedies under Rule 10 of the Central Administrative Tribunal (Procedure) Rules, 1987. Learned counsel contends that as per recruitment rules the seniority of applicant was settled after expert advice of the DoP&T insofar as methodology of appointment on interview on the basis of sequence to prepare seniority list and wait listed candidates have been placed below these candidates. It is stated that length of service is also material in such a case, which has been followed as a methodology for determination of seniority.
8. Learned counsel would also contend that applicant who joined much later than others on 8.1.1996, having not completed statutory eligibility service under the rules, has not been found fit to be considered for promotion.
9. We have carefully considered the rival contentions of the parties and perused the material on record. Without going into the contentious issue whether the information sought by applicant on RTI is forged or manipulated one, we straightway come to the principle of determination of seniority, which cannot be de hors the rules. The seniority has to be assigned as per the statutory rules. The stand of the respondents that the DoP&T has been approached for seeking advice on sequence of interview and length of service being the principle adopted seniority is in accordance with rules, cannot be countenanced.
10. Applicants consistent claim in this OA is for determination of seniority in his cadre and other trades as well for the common post of Workshop Instructor in different disciplines. The Delhi Administration Seniority Rules, 1965 would have application, which has not been specifically rebutted by the respondents. In such an event when statutory rules are in vogue and govern determination of seniority with apt methodology provided under the rules DoP&T advice was unwarranted except when there is some difficulty in interpreting the Rules. The act of the respondents whereby without adhering to the Rules the DoP&T was approached to devise methodology for determining the inter-se-seniority on different trades in common post of Workshop Instructor is illegal.
11. As per the rules for direct recruit on temporary appointment confirmation is the initial point from which seniority is to be reckoned but otherwise relative seniority of direct recruit shall be determined by the order of merit in which they are selected for such appointment. However, present is a case where the post of Workshop Instruction operates in different fields and trades for which selection committees meetings were held from 1.8.1995 to 5.8.1995 and a panel was drawn with waiting list. In such an event, Rule 9 would come into operation and the relative seniority of person selected to various grades requiring different qualifications would have to be determined by the consolidated order of merit drawn up by the selecting authority and thereafter the same would be on the basis of merit. In the instant case we find on record consolidated order of merit prepared by the respondents but has been questioned by them. These documents have been procured by another employee on RTI, leaves no doubt in our mind that principle of seniority has not been adhered to by the respondents. The applicant, who took this objection right from the onset of tentative seniority list having not been acceded to and rather rejecting the representation of applicant on the ground that the applicant had joined on 8.1.1996 whereas the others have joined earlier the basic issue, having not been considered there has been non-application of mind. It is trite that seniority being a civil right has to be operated in accordance with the recruitment rules. As the rules provide a different methodology than what has been adopted by the respondents in preparing the seniority list of Workshop Instructor and Instrument Repairer on various trades on DoP&T advice but not in accordance with the rules, the final seniority list is not sustainable in law, as against the Rules. However, we find that on the basis of the seniority list persons have been promoted, acting to their detriment in the promotional post would be an injustice to them.
12. In the result, for the foregoing reasons, balancing the equation, we partly allow this OA by setting aside the office order dated 30.4.2007 and final seniority list of Workshop Instructor/Instrument Repairer dated 16.03.2007, we direct respondents to re-determine the seniority on the basis of principle laid down under Rule 9 of the Seniority Rules and thereafter on assigning seniority to applicant as per principle culled out therein, consider his case for promotion by a review DPC and be accorded promotion with all consequences from the date the immediate junior has been promoted as Foreman Instructor. It goes without saying that despite revision of seniority the promotion already made shall not get affected and in such an event, law shall take its own course. No costs.
(Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) San.