Delhi High Court
Raj Pal & Ors. vs Delhi Transport Corpn. & Ors. on 22 March, 1999
Equivalent citations: 1999 IIAD Delhi 785, 79 (1999) DLT 319, 1999 (49) DRJ 339
Author: K Ramamoorthy
Bench: K Ramamoorthy
ORDER
K. Ramamoorthy, J.
1. The two writ petitioners have prayed for the following reliefs:-
"It is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to hold:
a) that action of the respondents in denying promotion to the petitioners to the post of Fitter in the scale of Rs.950-1500 is illegal, invalid, improper, arbitrary and discriminatory.
b) call upon the respondents to consider and promote the petitioners to the post of Fitter with effect from 26.7.1989 and place them at the appropriate position in the seniority list of Fitters from July 1989 itself above their juniors and also pay all other incumbents junior to the petitioners have been so promoted against the post of Fitters."
2. The facts are very simple. The petitioners joined the service of the DTC in 1978.In 1981, they were promoted as Asstt. Fitters, as evidenced by proceedings dated 29.10.1981 which is filed as Annexure P-8. The next higher post is the post of Assistant Fitter on the scale of Rs.950-1500. On the 26th of July, 1989 the DTC promoted 67 persons to the post of Fitters on officiating basis. The petitioners were not promoted. The petitioners came to know about the promotion in 1995. Petitioner No.1 had made a representation on the 14th of August, 1995. In reply thereto, the first respondent stated that no person junior to petitioner No.1 had been promoted. The petitioner No.2 also made a representation to the respondent. His representation also was rejected. Therefore, the petitioners had approached this Court praying for the reliefs aforementioned.
3. The petitioners belong to the Scheduled Caste category is not in dispute.
4. In reply to the case of the petitioners, the stand taken by the first respondent is that the petitioners are guilty of latches. In the year 1986, a seniority list in the lower cadre was prepared and pasted on the notice board in the office of the first respondent. In that seniority list, the petitioners were not shown belonging to the Scheduled Caste. That was an error committed by the first respondent. The petitioners must have been aware of this and could have filed the objections to the seniority list. They did not do it. Now, long after 1989, in 1997, the petitioners cannot come out with the grievance that their claims were not considered while passing the order on the 25th of July, 1989.
5. There is some slight difference in the case of the petitioner from the case of the first petitioner. The first petitioner was continuously in service, and, therefore, about his service no further details would be required for the purpose of considering the question. The second petitioner was dismissed from service in 1988 and later on, on the 14th of February, 1990 the DTC directed the employees engaged in the strike to be reinstated in service and the employees were taken back in service on the same position and on the same pay drawn by them at the time of dismissal. The second petitioner was taken in service back and, therefore, he is also deemed to have been in continuous service. This became necessary in view of the stand taken by the first respondent that the second petitioner did not have continuous service and, therefore, he cannot come forward with the case that he should also be promoted in 1988.
6. In view of the fact that the second petitioner was reinstated without any condition, he is also deemed to be in continuous service.
7. The learned counsel for the petitioner, Mr.B.S.Charya, submitted that the petitioners are the Scheduled Caste candidates and the first respondent, while issuing the promotion order in 1989, ought to have given promotion to the petitioners also and all the persons promoted who are shown below the petitioners in the list also belonged to Scheduled Caste category. Therefore, the petitioners are entitled to the reliefs prayed for in the writ petition.
8. Mr.D.K.Nag, the learned counsel for the DTC, submitted that in 1986 the seniority list was published and, as I had noticed above, the DTC did not notice the fact that the petitioner belonged to the Scheduled Caste category and, therefore, they were not given promotion. According to Mr.D.K.Nag, the learned counsel for the DTC, the petitioners must have been aware of the fact that their colleagues were working on the promotion posts and the petitioners have slept over the rights. According to the learned counsel for the DTC, Mr.D.K.Nag, the seniority list prepared in 1986 was pasted on the notice board in the office of the first respondent and that was official notice to the persons whose names were found in the seniority list and, therefore, the writ petition is liable to be rejected on this sole ground.
9. The petitioners are seeking to enforce their rights under the Constitution of India. Therefore, when the first respondent issued the seniority list in 1986, it should have given notice to the petitioners and also to all the persons in the list. Pasting a notice on the notice board in the office of the first respondent is not notice in the eyes of law. When issuance or preparation of seniority list involves civil consequences and the first respondent is dealing with the Fundamental Rights of the employees, the first respondent was under obligation, in law, to issue notice to all the persons found in the list. The fact that the petitioners were not shown as belonging to the Scheduled Caste in 1986 seniority list would affect their rights in the Constitution. It is no answer to their case now that they had kept quite for a considerable length of time and they are guilty of latches. When the first respondent had failed to act in accord-
ance with the provisions of the Constitution, the seniority list prepared in 1986 cannot, in law, be put against the petitioners. Article 46 of the Constitution of India imposes duty on State to promote with a special care the education and economic interest of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes.
10. Therefore, the petitioners are right in submitting that their nonpromotion in 1989 was wholly unjustified, and they are entitled to be promoted w.e.f.25.7.1989 and get their position fixed accordingly in the seniority list.
11. The first respondent shall issue orders promoting the petitioner as Fitters on the scale of Rs.950-1500 w.e.f.25.7.1989 granting them all consequential benefits on or before the 31st of May, 1999.
12. With reference to the backwages payable from 25th of July, 1989 up to the date of the order to be passed by the first respondent, the amount of arrears shall be credited to the provident fund accounts of the petitioners and the petitioners shall be entitled to draw the same from the provident fund account as per the rules relating to the provident fund. With refernce to the salary in future, the petitioners shall be put on the increased scale of pay as revised by the first respondent subsequently. The writ petition stands allowed in the above terms.
13. There shall be no order as to costs.
