Surinder Pahwa vs Municipal Corporation Of Delhi ...
2001 Latest Caselaw 1950 Del

JUDGMENT

Dr. Mukundakam Sharma, J.

1. The writ petition is filed by the petitioner seeking for quashing of the circular dt. 1.12.95 by which the respondent-corporation published the final seniority list of Assistant Director (Community Service) as illegal and arbitrary. The petitioner also seeks for a further direction to the respondent-corporation to promote the petitioner to the post of Deputy Director with all consequential benefits.

2. The petitioner was initially appointed as Community Organiser on 16.5.66.

The petitioner was thereafter regularised in the said post w.e.f. 1.11.82 by an order passed by the respondent-corporation on 13.11.82. It is stated in the petition that respondents 3 to 5, who belong to the reserved category, were appointed as Community Organisers after the petitioner was so appointed on 1.11.82. The records also disclose that the petitioner was promoted to the post of Assistant Director on 24.8.92 on ad hoc basis whereas respondents 3 to 5 were promoted to the said post on 31.1.94. It is, however, to be noted that the aforesaid promotion of respondents 3 to 5 to the post of Assistant Director was on regular basis.

The petitioner being aggrieved by the aforesaid order passed by the respondent-

corporation promoting respondents 3 to 5, on regular basis overlooking the claim of the petitioner, filed a representation to the respondent-corporation on 11.2.94.

The said representation was considered. By an order dt. 8.8.95, the petitioner was promoted to the post of Assistant Director (Community Services), on regular basis. Even after that a provisional seniority list was published by the respondent-

corporation wherein the name of the petitioner was shown at Sr. No. 7 whereas the names of respondents 3 to 5 were shown at Sr. Nos. 3 to 5. The petitioner made a representation as against the aforesaid alleged wrong showing of his name against Sr. No. 7 in the provisional seniority list. The said representation, as it appears, was rejected and the respondent-corporation published a final seniority list on 1.12.95 wherein the name of the petitioner continued to be shown at Sr. No. 7 whereas the names of respondents 3 to 5 were shown at Sr. Nos. 3 to 5. Being aggrieved by the said action, the petitioner submitted a further representation, which was, however, not accepted. Hence, the present petition is filed hi this court seeking for the aforesaid reliefs.

3. I have heard the learned counsel appearing for the parties and have also perused the records placed before me.

4. The issue that arises for my consideration is whether the petitioner, who was subsequently promoted to the post of Assistant Director, on regular basis, on 8.8.95, would be entitled to get restoration of his seniority back and get his position in the seniority list re-cast in accordance with law. In support of the said contention, counsel appearing for the petitioner relies upon the decision of the Supreme Court in Ajit Singh and Others v. State of Punjab and Others, . In the said decision, the Constitution Bench of the Supreme Court held thus:-

"We, therefore, hold that the roster-point promotees (reserved category) cannot count their seniority in the promoted category from the date of their continuous officiation in the promoted post, - vis-a-vis the general candidates, who were senior to them in the lower category and who were later promoted. On the other hand, the senior general candidate at the lower level, if he reaches the promotional level later but before the further promotion of the reserved candidate - he will have to be treated as senior at the promotion level, to the reserved candidate even if the reserved candidate was earlier promoted to that level. We shall explain this further under Point 3. We also hold that Virpal (2) and Ajit Singh (i) have been correctly decided and that Jagdish Lal (3) is not correctly decided. Points 1 and 2 are Point (3)."

5. In my considered opinion, the ratio of the aforesaid decision of the Constitution Bench of the Supreme Court is squarely applicable to the facts of the present case.

6. The petitioner was senior to respondents 3 to 5 in the cadre of Community Organiser and even in the post of Assistant Director as the petitioner was appointed to the said post, on ad hoc basis, on 24.8.92. Respondents 3 to 5 were promoted on regular basis as Assistant Directors, on 31. 1.94. In the counter affidavit filed by the respondent-corporation it is clearly indicated that respondents 3 to 5 were granted regular promotion to the post of Assistant Director w.e.f. 31.1.94 under the reservation roster made for SC/ST candidates.

7. It is also stated in the said counter affidavit that the aforesaid three officers were SC/ST candidates whereas the petitioner is a general candidate and she (petitioner) was granted regular appointment in the grade of Assistant Director w.e.f. 8.8.95. It is contended on behalf of the respondent-corporation that the seniority of an incumbent in a particular grade is to be determined on the basis of the regular promotion on a particular post in the light of the relevant instructions prevalent at that point of time, which provides that the date of regular promotion/appointment be visualised to determine the seniority.

8. Counsel appearing for the respondent-corporation has also raised a preliminary objection regarding maintainability of the writ petition on the ground of delay and laches. However, I am not convinced by the said arguments advanced on behalf of the respondent-corporation and I am not inclined to dismiss the writ petition on the ground of delay and laches. The provisional seniority list was published by the respondent-corporation on 6.10.95, as against which the petitioner submitted his representation challenging the seniority position ascribed to him. Even after the final seniority list was published, the petitioner submitted representation and when the said representation was rejected, the petitioner approached this court in the year 1998. Therefore, in my considered opinion, the petition has approached this Court with due diligence was that there is no delay and laches involved.

9. Respondents 3 to 5 were promoted to the post of Assistant Director, on regular basis, as they belong to reserved categories whereas the petitioner was a general candidate. After the petitioner was promoted to the said post of Assistant Director, on regular basis, on 8.8.95, she became entitled to have her seniority counted in terms of the ratio of decision in Ajit Singh (supra).

10. In that view of the matter and following the ratio of the decision of the Supreme Court in Ajit Singh's case (supra), a direction is issued to the respondent-corporation to re-cast the seniority position of the petitioner vis-a-vis respondents 3 to 5 and issue a fresh seniority list in terms of those directions as contained in Ajit Singh's case (supra), within four weeks from today. It is also observed that in view of the aforesaid re-casting of the seniority list, if the petitioner is entitled to any consequential benefits including promotion to the post of Deputy Director, she shall be so considered in accordance with law and in terms of the extant rules and she shall be given promotion to the said post, on notional basis, it the same becomes due to the petitioner under the extant rules and in accordance with law.

11. It is stated by the counsel appearing for the petitioner that with retirement of Sh. S.P. Dabas, who was placed in the seniority list above the petitioner, from the post of Deputy Director, on 31.1.98, the said post was vacant and, therefore, the case of the petitioner could and should have been considered by the respondent-corporation as against the said vacancy.

12. If the aforesaid contention is factually found to be correct by the respondent-corporation and if the petitioner is entitled under the law and in terms of the extant rules, to be considered as against the aforesaid vacancy, her case shall be so considered in terms of the aforesaid observations and directions and necessary orders thereof shall be published and communicated to the petitioner within eight weeks from the date of receipt of a copy of this order. If any promotion order is passed in favor of the petitioner in spite of her retirement from service, the petitioner shall be given national promotion in the said post in accordance with law and in terms of the extant rules.

13. With the aforesaid observations and directions, the writ petition stands disposed of.