OA No. 2449/2012 and MA No. 2033/2012. Case: Bangali Babu Agarwal and Rahul Saraswat Vs MCD & Ors. through The Director, Local Bodies, Delhi Secretariat and Others. Central Administrative Tribunal

Case NumberOA No. 2449/2012 and MA No. 2033/2012
CounselFor Appellant: Shri M.K. Bhardwaj, Advocate and For Respondents: Shri Arun Bhardwaj, Advocate for R-1 to 6 and Shri Rajeev Sharma, Advocate for R-7
JudgesSudhir Kumar, Member (A) and Raj Vir Sharma, Member (J)
IssueConstitution of India - Articles 16, 16(4), 16(4A), 341, 341(1), 342, 366(24), 366(25)
Judgement DateApril 24, 2014
CourtCentral Administrative Tribunal

Order:

Sudhir Kumar, Member (A), (Principal Bench, New Delhi)

MA 2033/2012

  1. This MA, filed by the two applicants, praying for permission for joining together in filing this OA, is allowed.

    OA 2449/2012

    Applicants Case & Grounds

  2. The two applicants of this OA are Executive Engineers (EE, for short) with the (now trifurcated) Municipal Corporation of Delhi (MCD, for short), who were initially appointed as direct recruit Assistant Engineers (AEs, for short) when the Hon'ble Delhi High Court had, through its order dated 30.05.1997 in the case of S.A. Ansari & Others. vs. M.C.D. & Others, ordered the then unified MCD to fill up the vacant posts falling in the quota for direct recruit AEs within a period of six months from that date. The Recruitment Rules (RRs, for short) to the post of AE (Civil), as approved by the then unified MCD, vide its Resolution No. 97 dated 04.05.1970, and notified in the Delhi Gazette Notification vide Notification dated 26.06.1970, had provided for appointment of AEs of MCD 50% by way of promotion, and 50% by way of Direct Recruitment, in a 1:1 ratio, the channel for promotion being from the two feeder cadres of (a) Junior Engineers (Civil)/Overseers with a Degree in Civil Engineering, with two years experience in the grade, and (b) those with a Diploma in Engineering, with seven years experience in the grade of JEs/Overseers.

  3. Within around 8 to 9 years of their entering their services, vide office order dated 24.11.2006, the applicants were promoted to the posts of E.Es. in the unified MCD, on look after charge basis, which was done in compliance of the interim orders dated 07.11.2006 of the Hon'ble Delhi High Court in WP (C) No. 4123-26/2005 in the case of Sandeep Malhotra and Others vs. MCD & Others. That bunch of cases was later transferred to this Tribunal by the orders of the Hon'ble High Court dated 27.01.2009, numbered in the Tribunal as TA No. 327/2009 and decided through order dated 24.05.2011, which was a common order passed in TA No. 243/2009 Jagdish Prasad vs. MCD & Ors. with TA No. 327/2009 Sandeep Malhotra & 3 Ors. vs. MCD & Ors, with TA No. 395/2009 Ramesh Kumar & 3 Ors vs. MCD & Ors. The common judgment & order in these three TAs, was once again carried before the Hon'ble High Court in WP(C) No. 6568/2011 Jagdish Prasad vs. MCD & Ors. with WP(C) No. 293/2012 Ramesh Kumar & Ors. Vs. M.C.D. & Ors. along with WP (C) No. 8724/2011 Sandeep Malhotra & Ors. vs. MCD & Ors. It was argued before us that since there had been no subsequent final orders passed by the Hon'ble High Court, its earlier interim orders dated 07.11.2006 in Sandeep Malhotra and Others vs. MCD & Others (supra), are still operative. However, it was not truthfully pointed out before us that even before the present O.A. had been argued & had been reserved on 24.10.2013, the Hon'ble High Court has already disposed off the three connected WP (C) Nos. 6568/2011 Jagdish Prasad vs. MCD & Ors., WP(C) No. 293/2012 Ramesh Kumar & Ors. Vs. M.C.D. & Ors. and WP (C) No. 8724/2011 Sandeep Malhotra & Ors. vs. MCD & Ors. through its final orders dated 05.08.2013, and had set aside the order dated 24.05.2011, and remanded those cases back to this Tribunal for a fresh adjudication, and that these three T.As had already been listed before this very Bench on 10.10.2013, without either side pointing out the connection with those three T.As. during the detailed arguments in the present case on 24.10.2013.

  4. Therefore, the applicants had submitted in their OA and later during the arguments advanced on their behalf that the Private Respondent R-7 was promoted to the cadre of AE in 1998 only in pursuance of the orders of the Hon'ble High Court in the case of S.A. Ansari and Others (supra), and thereafter he was further promoted to the post of EE on look after charge basis in 2007 in pursuance of the interim orders of the Hon'ble Delhi High Court dated 07.11.2006 in the WP(C) No. 4123-26/2005 in the case of Sandeep Malhotra and Others vs. MCD & Others (supra). The erstwhile MCD used to follow the system of the charge of higher duties being assigned to incumbents first on look after charge basis, then on ad hoc promotion basis, and then finally to be followed by substantive promotion. The Applicant No. 1 before us has claimed that he was given ad hoc promotion to the post of EE in 2008. However, the Applicant No. 2 could not be given such ad hoc promotion at that point of time, as he was under a cloud, which allegedly was the position in respect of the Private Respondent R-7 also. The applicants have produced a copy of the Minutes of the Meeting held for this purpose on 05.12.2008 through Annexure A-3 at pages 81 to 85 of the Paper Book.

  5. The applicants have alleged that the Private Respondent R-7 thereafter filed OA No. 2605/2009 before this Tribunal, without giving the complete facts and circumstances of the case, and without making them as party respondents in that OA, and even the official respondents also did not bring the complete facts and circumstances of the case before this Tribunal, which resulted in passing of final orders dated 28.09.2010 by a Coordinate Bench, which was produced as Annexure A-1 at pages 65 to 76 of the Paper-Book of this OA.

  6. The applicants have further submitted that thereafter, in some other parallel proceedings, the Hon'ble High Court had passed orders dated 22.11.2005 in WP(C) No. 5838/1998 in the case of O.P. Mittal vs. MCD., and on the basis of the directions contained in that order, a review DPC was held on 24.04.2006. Thereafter an order came to be passed, promoting 50 persons as AE (Civil) on regular basis in the pay scale of Rs. 2000-3500 (pre-revised), i.e. of Rs. 6500-10500/- (revised), with effect from the dates mentioned against their names, through the office order dated 08.05.2006 (Annexure A-4). The applicants have alleged that the name of the Private Respondent R-7 did not figure in that list of 50 candidates, since he was a promotee AE of 1998, and those orders dated 08.05.2006, at Annexure A-4, had covered only the people up-to the year 1997, flowing from the Hon'ble High Court's directions in O.P. Mittal's case (supra).

  7. It has been further submitted by the applicants that later on, through office order dated 15.12.2008, issued in compliance of the Hon'ble High Court's interim directions dated 07.11.2006 in the case of Sandeep Malhotra and Others vs. MCD & Others (supra), all the vacant posts in the cadre of EEs were filled, and promotions to the SC/ST candidates were also given, as per the reservation rule, and the candidates of SC/ST categories were thereby duly represented in the cadre of EEs.

  8. The applicants have submitted that when the Private Respondent R-7 filed his OA No. 2605/2009 before this Tribunal, it was not brought to the notice of this Tribunal that these decisions had been taken in the past as per the orders of the Hon'ble High Court, and that promotions had thereafter been made as per the rules, and as per the directions of the Hon'ble High Court of Delhi. The applicants have submitted that no review of such promotions could have been made since those promotions themselves had been made under the directions of the Hon'ble High Court. The applicants have also further submitted that it was not brought to the notice of this Tribunal by the Private Respondent R-7 in his OA No. 2605/2009 that in view of the decision of the Hon'ble Apex Court in the case of M. Nagraj & Others vs. Union of India & Others (2006)8 SCC 212, no benefit of promotion could have been claimed by him on the basis of reservation, and that the applicant in OA No. 2605/2009, the Private Respondent R-7 in the present OA, had no right to claim for seeking directions of this Tribunal for change in the zone of consideration for promotions, only because he belongs to ST category.

  9. The applicants have sought shelter behind the DoP & T's instructions issued through OM dated 10.04.1989 which state that while holding a review DPC, the zone of consideration cannot be changed, and even the gradings, as given by the earlier original DPC, cannot be altered, which aspect would have been considered by the Coordinate Bench of this Tribunal, if either the official respondents, or the Private Respondent R-7/applicant therein in OA No. 2605/2009, had brought this fact to the notice of this Tribunal. The applicants thereafter actually assailed the very order passed by the Coordinate Bench on 28.09.2010 in the said OA No. 2605/2009 N.C. Meena vs. MCD and Others, praying that this Bench should differ with the findings of the earlier Coordinate Bench of this Tribunal, and submitted that if the official respondents are now allowed to hold a review DPC, in the guise of the implementation of the order passed on 28.09.2010 in the OA No. 2609/2009, filed by the Private Respondent R-7, it would run contrary to the law, as laid down by the Hon'ble Apex Court in the case of M. Nagaraj (supra), and a catena of other cases. Citing different case laws, and the Constitution (Seventy Seventh) Amendment Act, 1995, the applicants had assailed the very policy of reservation in promotions being sought to be applied. They had placed reliance on the following case laws:

    1) Indra Sawhney vs. Union of India: AIR 1993 SC 477: (1992) Supp (3) SCC 217.

    2) R.K. Sabharwal vs. State of Punjab, 1995(2) SCC 745: AIR 1995 SC 1371.

    3) Union of India vs. Virpal Singh Chauhan 1995(6) SCC 684

    4) (Ajit Singh-I) Ajit Singh Januja vs. State of Punjab, 1996(2) SCC 715.

    5) Ajit Singh-II vs. State of Punjab (1999)7 SCC 209

  10. The applicants have explained that since they are aggrieved by the order passed by the Coordinate Bench of this Tribunal, in terms of the law as laid down by the Hon'ble Apex Court in the case of K. Ajit Babu & Others vs. Union of India & Others (1997)6 SCC 473, in order to seek remedy against an order affecting them which had been passed behind their backs, the only remedy available to them was by way of filing a...

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