Central Administrative Tribunal - Delhi
Ramesh Kumar Tomar vs Delhi Development Authority Delhi on 3 October, 2016
Central Administrative Tribunal
Principal Bench
New Delhi
O.A.No.2380/2014
Order Reserved on: 24.08.2016
Order pronounced on 03.10.2016
Hon'ble Shri V. Ajay Kumar, Member (J)
Hon'ble Dr. Birendra Kumar Sinha, Member (A)
1. Sh. Ramesh Kumar Tomar
Aged about 51 years
S/o Sh. O.P.Tomar
R/o H.No.110A, Street No.19
Molarband Extension,
New Delhi - 44.
2. Sh. Subhash Chander
Aged about 51 years
S/o Sh. Jai Narain
R/o Flat No.23C, Vikas Niketan
DDA Staff Quarters
Behind IDPL Society, Pitampura
Delhi - 110 034. ... Applicants
(By Advocate: Shri S.K.Gupta)
Versus
Delhi Development Authority through
1. Vice Chairman
Delhi Development Authority
Vikas Sadan, INA
New Delhi - 110 023.
2. Dy. Director (P)-I
Delhi Development Authority
O.A.No.2380/2014
2
Vikas Sadan, INA
New Delhi - 110 023.
3. Dy. Director (P)-II
Delhi Development Authority
Vikas Sadan, INA
New Delhi - 110 023.
4. Dy. Director (CR)/DDA
Delhi Development Authority
Vikas Sadan, INA
New Delhi - 110 023.
5. Sh. Bal Kumar (SC)
Asstt. Director (Survey)
O/o HUPW, Vikas Minar
New Delhi - 110 002.
6. Sh. Rajbir Singh (SC)
Asstt. Director (Survey)
O/o LSB (Residential)
Vikas Sadan, New Delhi - 23.
7. Sh. Ramdhari Rathi (SC)
Surveyor
O/o Survey Unit
Area Planning, 3rd Floor
Vikas Minar
New Delhi - 110 002.
8. Sh. Gaya Prasad (SC)
Surveyor
O/o Dwarka Project, DDA, Manglapuri
Palam
New Delhi.
9. Sh. Jagdish Prasad Meena
S/o Birja Ram Meena
Asstt. Director (Survey)
O/o Enforcement Lands
O.A.No.2380/2014
3
Vikas Sadan,
New Delhi.
10. Sh. Kailash H.Neemjee (ST)
Surveyor
O/o Survey Unit
UC Cell, 12th Floor, Vikas Minar
New Delhi - 110 002.
11. Sh. Vinod Kumar Wakodikar (ST)
Surveyor
S&S II, 3rd Floor, A-Block, INA
Vikas Sadan Office, New Delhi -23
12. Sh. Chhaju Ram (SC) (Retired),
13. Sh. I.S.Dhama (General),
Surveyor
O/o Rohini Project, DDA Office Building
Madhuban Chowk, New Delhi - 85.
14. Sh. Anil Kumar Pubby (General),
Surveyor
O/o Dwarka Project, DDA, Manglapuri
Palam, New Delhi.
15. Sh. Dinesh Chauhan (SC)
Surveyor
O/o Rohini Project, DDA Office Building
Madhuban Chowk, New Delhi-85.
16. Sh. Harish Kumar (SC)
Surveyor
O/o Survey Unit
UC Cell, 12th Floor, Vikas Minar
New Delhi - 110 002. ... Respondents
(By Advocate: Ms. Sriparna Chatterjee for R-1 to R-4, None
for R-5 to R-16)
O.A.No.2380/2014
4
ORDER
By V. Ajay Kumar, Member (J):
The applicants, two in number and working as regular Surveyors, in the respondent-Delhi Development Authority (in short, DDA), filed the OA, mainly seeking to quash and set aside the Annexure A1-Seniority List of Surveyors, and to declare their seniority w.e.f. 10.01.1991, on which date they were declared to be regular Work Charged Surveyors, and thereby to place them above the private respondents, who were recruited as Surveyors on regular basis after following procedure such as age, qualification, selection process etc., as per the Recruitment Rules after the said date but before 04.06.2009, i.e., the date of appointment of applicants as Surveyors on regular basis in relaxation of rules, in the seniority, and for other consequential reliefs.
2. Brief facts, as narrated in the OA, are that the applicants No.1 and 2, who were originally working on daily wage basis, were brought on the work charged establishment vide Establishment Order No.3976, dated 19.09.1989 and accordingly, appointed as Work Charged Surveyors in the respondent-DDA vide Annexure 4A (Colly.) w.e.f. 25.10.1989 and 13.10.1989 respectively. Thereafter, they were declared as part of the regular Work Charged Establishment vide E.O.No.130 dated 10.01.1991 along with other work charged employees and O.A.No.2380/2014 5 accordingly they become the regular Work Charged Surveyors w.e.f. 10.01.1991 (Annexure A/2 to counter of DDA). While they were working as such, the respondent-DDA vide Circular dated 15.01.2007, called for applications for selection to the post of Surveyors on regular basis from departmental candidates who are working on regular/Work Charged/Work Charged regular, who possesses the required qualifications. In pursuance of the selection thereto, the applicants were appointed as Surveyors on regular basis vide EO No.1230 dated 04.06.2009 (Annexure A7) and were placed on probation for a period of two years and on successful completion of the period of probation, they were made permanent regular Surveyors.
3. Heard Shri S.K.Gupta, the learned counsel for the applicants and Ms. Sriparna Chatterjee, the learned counsel for the respondents 1 to 4, and perused the pleadings on record.
4. Both the counsels advanced their extensive arguments and taken us to various documents, to buttress their respective contentions, however, in our considered view, this OA can be disposed of without delving upon those contentions.
5. Admittedly, all the private respondents were selected and appointed as per the prevailing Recruitment Rules for the post of Surveyor prior to 04.06.2009, i.e., the date on which the applicants were appointed as regular Surveyors. O.A.No.2380/2014 6
6. Further, as submitted by the applicants themselves and as admitted by the respondent-DDA that as per the Recruitment Rules 100% of the vacancies of Surveyor posts are required to be filled up by direct recruitment only. The age limit is prescribed between 18 to 25 years. There is no provision for recruitment by any other method. But the respondent-DDA, in view of the long standing of the applicants as daily wage Surveyors and Work Charged Surveyors, by way of one-time relaxation and by relaxing the age limit, and instead of written examination, considering the performance report of the applicants, appointed them as regular Surveyors w.e.f. 04.06.2009.
7. The seniority and other rights of the private respondents were settled as on the date of appointment as regular Surveyors, which was done, strictly as per the Recruitment Rules. The applicants who were appointed, in relaxation of the Recruitment Rules, as regular Surveyors, subsequent to the appointment of the private respondents, cannot steal a march over the private respondents.
8. It is the settled principle of law that the persons who were appointed to a particular post, in relaxation of rules, cannot get seniority over the persons who were recruited as per the rules.
9. In K. Balarama Raju & Others v. Ch. V. Subrahmanya Sarma, (2011) 13 SCC 574, the appellants were not possessing the requisite qualification of P.G.Diploma in Computer O.A.No.2380/2014 7 Application/Programming as on the qualifying test for promotion to Computer Operators. Ch. V. Subramanya Sarma was possessing the same . However, the appellants were permitted to write exam along with the said Ch. V. Subramanya Sarma and on the basis of marks obtained in test, the appellants were shown as senior to the said Ch. V. Subramanya Sarma in Computer Operator post and that the appellants were permitted to pass the PGDCA within 2 years and that they passed. The Hon'ble Apex Court held that the respondent was fully qualified as on the date of the test, and that the applicants who got relaxation of rules due to administrative exigencies cannot be shown as seniors to the respondents. The Hon'ble Apex Court held as under:
"32. .....................It is settled law that one should have the qualifications on the date when the applications are invited. Any such relaxation to permit unqualified candidates cannot be to the prejudice of the qualified candidates. They can be taken into the service but cannot steal a march over the qualified and the selected candidates."
10. In State of Gujarat v. C.G.Desai, (1974) 1 SCC 188, it was held:
"16. If a person, like any of the respondents, to avoid the long tortuous wait leaves his position in the never ending queue of Temporary Officiating Deputy Engineers etc, looking for promotion, and takes a short cut through the direct channel, to Class II Service, he gives up once for all, the advantages and disadvantages that go with the channel of promotion and accepts all the handicaps and benefits which attach to the group of direct recruits. He cannot, after his direct recruitment claim the benefit of his pre-selection service and thus have the best of both the worlds......."O.A.No.2380/2014 8
11. The contentions of the applicants that the respondents having granted the ACP/MACP benefits and fixed the pay by considering their service rendered as regular work charged employees, cannot deny the seniority, is unsustainable, in view of the aforesaid settled position of law.
12. It is not the case of the applicants that the private respondents were appointed as Surveyors on regular basis, in relaxation of the rules. Hence, the applicants who were appointed as Surveyors on regular basis, in relaxation of the Recruitment Rules, cannot march over the private respondents who were recruited as Surveyors on regular basis, as per Rules.
13. In the circumstances and for the aforesaid reasons, we do not find any merit in the OA and accordingly, the same is dismissed. No costs.
(Dr. Birendra Kumar Sinha) (V. Ajay Kumar)
Member (A) Member (J)
/nsnrvak/