Central Administrative Tribunal - Delhi
Raj Kumar vs In This Original Application on 27 March, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A.NO.857 OF 2013
New Delhi, this the 27th day of March, 2014
CORAM:
HONBLE SHRI ASHOK KUMAR, ADMINISTRATIVE MEMBR
AND
HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER
.
1. Raj Kumar, Conductor, B.No.15495, NND,
s/o late Sh.Sewa Ram,
r/o D-1/535, Gali No.13,
Ashok Nagar, Shahdra,
Delhi 110093
2. Main Pal Singh, Conductor, B.No.15854, NND,
s/o Sh.Tarif Singh,
r/o village Gopal Pur, G.O.Gopal Puri,
C-75, Shahdra,
Delhi 110094
3. Mukesh Pal Singh, Conductor, B.No.15878, NND,
s/o late Sh.Omvir Singh,
r/o 1449/100, Gali No.4,
100 Foot Road, Shahdra,
Delhi 110093 . Applicants
(By Advocate: Shri Anil Mittal)
Vrs.
Delhi Transport Corporation,
I.P.Estate,
New Delhi 110002,
(through Chairman-cum-Managing Director).. Rspondent
(By Advocate: Mrs.Manisha Tyagi)
..
ORDER
Raj Vir Sharma, Member(J):
In this Original Application, the applicants have prayed for the following relief:
(i) Quash letter dt.20.2.2013 (Annexure A-1) and letter dt.20.2.2013 (Annexure A-2);
direct the respondent to hold promotions as per letter dt.14.8.2012 (Annexure P-3.)
2. Brief facts of applicants case run thus: Applicants, belonging to General Category, were initially engaged by the respondent-DTC as Conductors on daily wage basis in March and June 1982 and were brought on to monthly rates of pay in September and December 1982. They are presently working as Conductor in D.T.C.(respondent). The Manager (Personnel), D.T.C., vide O.M. No.PLD-III/280/281)/2012/2491, dated 14.8.2012 (Annexure A-3) requested the concerned Unit Officers, under whom Conductors and Drivers were working, to send Service Books and ACR files for the years 2009-10, 2010-11 and 2011-12 of Conductors, belonging to General Category and Scheduled Caste, who were brought on monthly rates of pay on or before 31.12.1982 and of Scheduled Tribes who had completed at least 3 years regular service as Conductor for consideration of their case for promotion to the post of Assistant Traffic Inspector. Accordingly, Service Books and ACRs of applicants and others were sent by the concerned Unit Officers to the Manager (Personnel), D.T.C.. After more than six months of issuance of the said O.M dated 14.8.2012 (Annexure A-3), the Manager (Personnel), D.T.C., vide O.M. No.PLD-III/(280/281)/2013/536, dated 20.2.2013 (Annexure A-1) changed the eligibility criterion and called for Service Books and ACRs of Conductors belonging to General Category who were brought on to monthly rates of pay on or before 30.6.2012 without assigning any reason whatsoever. So far as Conductors belonging to Scheduled Caste were concerned, in the said O.M. there was no change in the eligibility criterion. The Manager (Personnel), D.T.C., vide another O.M.No.PLD-III/(280/281)/2013/526, dated 20.2.2013 (Annexure A-2) also changed the eligibility criterion in respect of Conductors belonging to Scheduled Caste and intimated the concerned Unit Officers to send Service Books and ACRs of Conductors belonging to Scheduled Caste, who were brought on to monthly rates of pay on or before 30.6.1983. It is mainly contended by the applicants that the respondent, having changed the cut-off date for eligibility to their disadvantage without assigning any reason, has acted arbitrarily and illegally.
3. A counter reply has been filed by the respondent refuting the claim made by the applicants. In the counter reply, it is stated that none of the applicants has approached the respondent about their purported grievance prior to filing of the instant Original Application. The respondent has referred to DoP&Ts O.M. No. 36012/2/96-Estt.(Res) dated 2.7.1997 (Annexure A) issued in compliance with the judgment of the Honble Supreme Court in R.K.Sabharwal v. State of Delhi regarding applicability of post-based roster point; and O.M. No.36028/17/2001-Estt.(Rs) dated 11.7.2002 and O.M. No.36028/17/2001-Estt.(Res) dated 31.1.2005 (Annexures B and C) regarding the effect of promotion of SC/ST candidates on their own merit. They have also referred to the order of the Madras Bench of the Tribunal in OA No.900 of 2005(S.Kalugasalamoorthy v. Union of India and others) setting aside the DoP&Ts O.M. dated 31.1.2005, and to the decision of the Honble Madras High Court upholding the said order of the Tribunal. It is also stated by the respondent that in compliance with the aforesaid order passed by the Madras Bench, which was upheld by the Honble Madras High Court, the Government of India, Department of Personnel & Training, vide O.M.No.36012/45/205-Estt.(Res) dated 10.8.2010, withdrew the O.M. No.36028/17/2001-Estt.(Res) dated 31.1.2005 and clarified that SC/ST candidates appointed by promotion on their own merit and seniority and not owing to reservation or relaxation of qualification would be adjusted against the unreserved points of reservation roster, irrespective of the fact whether the promotion was made by selection method or non-selection method. The said clarification was also directed to be effective from 2.7.1997, i.e., the date on which the post-based reservation was introduced. It is further stated that taking into consideration the provisions contained in O.M. dated 31.1.2005(ibid), the promotions, on the basis of seniority-cum-fitness were being made in various categories of posts in the Corporation and the SC/ST candidates promoted on their own turn/merit were being treated as SC/ST. As a result, SC candidates could not be considered for promotion against the reserved points for a long intervening period. Consequent upon withdrawal of the O.M. dated 31.1.2005(ibid), roster has been re-casted from 2.7.1997 onwards and a major part of SC candidates whosoever promoted during these years have now been treated as promoted on their own turn. Therefore, in order to give adequate representation to SC candidates against the reservation quota of 15%, the service records were called for, vide O.M. dated 20.2.2013.
4. In the rejoinder reply, the applicants have controverted the stand taken by the respondent in the counter reply. It is stated by the applicants that as per order dated 24.6.2013 (Annexure A-4 to the rejoinder) issued by the respondent, out of total 561 promoted candidates, 349 General Category candidates have been promoted and 212 Scheduled Caste candidates have been promoted. Thus, according to the applicants, almost 38% of the total promotional posts have been occupied by the Scheduled Caste candidates as against the quota of 15%.
5. We have perused the records and heard the learned counsel appearing for the parties.
6. In paragraph 6 of the O.A. the applicants declare that they have availed of all the remedies available to them. In reply thereto, it is stated in the counter reply that none of the applicants has approached the respondent about their purported grievance. The applicants have not refuted this assertion of the respondent. The two O.Ms. dated 20.2.2013 (Annexures A-1 & A-2) and the O.M. dated 14.8.2012 (Annexure A-3) were issued by the Manager (Personnel), D.T.C. If at all the applicants felt aggrieved by the change of cut-off date for eligibility, they should have approached the Chairman-cum-Managing Director, which authority, according to the applicants themselves, represents the respondent-Corporation. Section 20(1) of the Administrative Tribunals Act, 1985 mandates that a Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him. The applicants herein have not shown any reason as to why they did not make any representation to the Chairman-cum-Managing Director of the Corporation against the two O.Ms. dated 20.2.2013 (Annexures A-1 and A-2). The applicants are rather found to have made a false declaration in the Original application. In the above view of the matter, the instant Original Application being hit by Section 20(1) of the Administrative Tribunals Act, 1985, is liable to be rejected, as being not maintainable.
7. The applicants have not produced any material to show that all those persons belonging to Scheduled Caste community, who were mentioned in the order dated 24.6.2013 (Annexure A-4 to the rejoinder), were not recommended for promotion to the post of Assistant Traffic Inspector against roster points reserved for them. The applicants have also not produced any material to show the total number of posts of Assistant Traffic Inspector in the respondent-organization and further to show that the percentage of representation of the Scheduled Caste candidates in the grade of Assistant Traffic Inspectors exceeds the 15% quota of the total posts of Assistant Traffic Inspector in the respondent-organization, if the number of Scheduled Caste candidates recommended for promotion, vide order dated 24.6.2013, is added to the number of Scheduled Caste candidates already promoted prior thereto. Besides, the said order dated 24.6.2013 (Annexure A-4) contains the names of Conductors and Drivers belonging to all categories who have been found suitable for promotion to the post of Assistant Traffic Inspector by the Departmental Promotion Committee, which apparently met after the issuance of both the O.Ms. dated 20.2.2013 (ibid). Therefore, reference to the said order dated 26.4.2013 (Annexure A-4 to the rejoinder) by the applicants in support of their plea is wholly misplaced. We, therefore, hold that the plea taken by the applicants about more percentage of representation of Scheduled Caste candidates than 15% in the grade of Assistant Traffic Inspector has not been substantiated by the applicants.
8. Considering the averments contained in the counter reply and the decisions of the Government of India referred to by the respondent in the counter reply, we find that for cogent and convincing reasons, the respondent changed the cut-off date for eligibility both in respect of Conductors belonging to General Category and Conductors belonging to Scheduled Caste community, vide the two O.Ms. dated 20.2.2013 (Annexures A-1 and A-2). In the above view of the matter and in the light of instructions of the Government of India contained in the Department of Personnel & Trainings O.M. No.36012/2/96-Estt.(Res) dated 2.7.1997 and O.M. No.36012/45/205-Estt.(Res) dated 10.8.2010, to which reference has already been made in this order, we do not find any ground to interfere with both the impugned O.Ms. dated 20.2.2013 (Annexures A-1 and A-2). Consequentially, the applicants prayer to direct the respondent to consider the Conductors belonging to all categories for promotion, as per the letter dated 14.8.2012 (Annexure A-3) has no merit.
9. In the light of the above discussions, we hold that the O.A. is devoid of merit, besides being not maintainable. Accordingly, the O.A. is dismissed. No costs.
(RAJ VIR SHARMA) (ASHOK KUMAR) JUDICIAL MEMBR ADMINISTRATIVE MEMBER AN