Shri Maru Singh And Ors. vs D.T.C. And Ors.
2006 Latest Caselaw 1294 Del

JUDGMENT

Vipin Sanghi, J.

1. This petition under Article 226 of the Constitution of India which has come up for final hearing after issuance of "Rule" has been filed by two individuals. The Petitioners joined the Respondent Delhi Transport Corporation as conductors in the year 1962. Respondents No. 3 to 9 who are private respondents also joined the Respondent Corporation in the same post in the year 1967 and thereafter. The Petitioners were promoted to the post of Assistant Traffic Inspector in December, 1979 whereas Respondents No. 3 to 9 were promoted to the said post in the year 1982. Next promotion post was that of Traffic Inspector. Respondents No. 3 to 9 came to be promoted as Traffic Inspector on 18.2.1987 whereas the Petitioners were promoted as Traffic Inspectors on 5.2.1992.

2. The Ministry of Personnel, Public Grievances and Pension (Department of Personnel and Training), Government of India issued an office Memorandum bearing No. 20011/1/96-Estt. (D) dated 30.1.1997 which was circulated to the Respondent Corporation for information, guidance and strict compliance vide a communication dated 23.4.1997 (Annexure P1). This Office Memorandum dated 30.1.1997 was issued in consequence of the decision of the Hon'ble Supreme Court dated 10.10.1995 in the case of Union of India v. Virpal Singh Chauhan etc. .

3. It appears that prior to the said judgment being rendered, the seniority of all the promotees in the promoted post was fixed on the basis of their respective dates of promotion. However, the Hon'ble Supreme Court in the said decision held as follows:

Even if a Schedule Caste/Scheduled Tribe candidate is promoted earlier by virtue of rule of reservation/roster than his senior general candidate and the senior general candidate is promoted later to the said higher grade, the general candidate regains his seniority over such earlier promoted Scheduled Caste/Scheduled Tribe candidate. The earlier promotion of the Scheduled Caste/Scheduled Tribe candidate in such a situation does not confer upon him seniority over the general candidate even though the general candidate is promoted later to that category.

4. In consequence of the said decision of the Hon'ble Supreme Court, the Government of India modified the existing policy of fixing seniority on promotion and introduced a proviso to its earlier office Memoranda dated 22.12.1959 and 3.7.1986.

The said proviso reads as follows:

Provides that if a candidate belonging to the Scheduled Caste or the Scheduled Tribe is promoted to an immediate higher post/grade against a reserved vacancy earlier than his senior general/one candidate who is promoted later to the said immediate higher post/grade, the general/one candidate will regain his seniority over such earlier promoted candidate of the Scheduled Caste and the Scheduled Tribe in the immediate higher post/grade.

5. I may notice that the aforesaid decision of the Supreme Court since has been reaffirmed in Ajit Singh and Ors. (II) v. State of Punjab and Ors. by a Constitution Bench. As a result of the issuance of the said office Memorandum dated 30.1.1997, it appears that the Respondent recasted the seniority in the post of Traffic Inspector which included the Petitioners and Respondents No. 3 to 9. This position is recorded in para 5 of the counter affidavit of the Respondent affirmed by Sh. L.C. Goyal, Deputy CGM (P & C) dated 6.5.2000. The effect of the aforesaid office Memorandum was that the Petitioners came to be ranked senior to Respondents No. 3 to 9 in the post of Traffic Inspector, even though they had been promoted to the said post only in the year 1992, while Respondents No. 3 to 9 had been promoted to the said post in the year 1987. This was so because the Petitioners were inducted in the feeder post as conductors in the year 1962, while Respondents No. 3 to 9 had been inducted as conductors in the year 1967-1971.

6. The Petitioners filed the present writ petition since Respondents/DTC issued an order dated 4.9.1998 (Annexure P-4)whereby Respondents No. 3 to 9 were promoted to officiate as Traffic Supervisor w.e.f 9.9.1998. It may be stated that the post of Traffic Supervisor is the next promotion post from the post of Traffic Inspector, on which the Petitioners and Respondents No. 3 to 9 were working prior to the promotion of Respondents No. 3 to 9 on 4.9.1998 w.e.f. 9.9.1998. The Petitioners have challenged the promotion orders in respect of Respondents No. 3 to 9 to the post of Traffic Supervisor on the ground that their candidature has been by-passed even though they rank senior to Respondents No. 3 to 9 by virtue of the office Memorandum dated 30.1.1997 referred to above. The Petitioners also relied on an order dated 13.5.98 passed by this Court in W.P (C ) No. 4974/97 (Annexure P-3), wherein this Court had, while dealing with the said OM dated 30.1.97 stated that "I have no hesitation in my mind that the respondents would abide by and/or comply with the directions as contained in instructions dated 30.1.1997 and 23.4.1997 by which the respondent No. 1 is bound. The respondent No. 1 has categorically asserted in the counter affidavit that the instructions contained in those memorandums are being complied with and would be followed.

7. The Respondents in their counter affidavit have not denied the applicability of the OM dated 30.1.97, but have sought to explain their action by stating in para 13 as follows: "the Petitioners are not deprived off their any right because of the fact that at the time selection of Scheduled Caste candidates vacancy based reservation roster was in existence".

8. Counsel for the Petitioner states that the aforesaid averment of the Respondents was made without any basis. The Respondents have not filed the roster to indicate as to how Respondents No. 3 to 9 were promoted and fitted against reserved vacancies. Counsel has referred to the affidavit in rejoinder wherein the Petitioners have denied the claim of the Respondents that the selection of Scheduled Castes candidate was made against reservation based vacancy in the roster. Counsel for the Petitioner has also argued that a bare perusal of the impugned promotion orders dated 4.9.1998 shows that the promotion of Respondents No. 3 to 9 was not against reserved vacancies. Had Respondents No. 3 to 9 been promoted against reserved vacancies, the same would have been indicated in the impugned order.

9. After having heard the learned Counsel for the Petitioner, and in the absence of any assistance from the side of the Respondent, in my view there is merit in the argument of the counsel for the Petitioners.

10. The explanation furnished by the Respondents DTC as extracted herein above is totally vague and, therefore, cannot be accepted. Apart from stating that at the relevant time the vacancy based reservation roster was in existence, the Respondent has not cared to explain, as it was obliged to, as to how Respondents No. 3 to 9 came to be fitted against vacancies which were claimed as following within the reserved quota. The Respondents have not even clearly stated that Respondent Nos. 3 to 9 were promoted against the existing reserved vacancies in the post of Traffic Supervisor. To say that at the relevant time the vacancy based reservation roster was in existence cannot be taken to mean that, in fact, the promotion of Respondent Nos. 3 to 9 was made as per the said roster against vacancies falling in the reserved quota, particularly when the Respondents have not even produced any material to substantiate their claim. It was for the Respondents to have produced the roster position at the relevant time and to explain as to how the private Respondents have been fitted against the vacancies. Moreover, the promotion orders dated 4.9.1998 are also absolutely silent on this aspect and do not indicate that these promotions of Respondents No. 3 to 9 were being made against reserved vacancies. I, therefore reject the vague and incomplete averments made by the Respondent DTC.

11. In their Counter Affidavit, the Respondent DTC has made reference to some instructions issued vide OM dated 2.7.1997. It is claimed that by that Office Memorandum, "the vacancy based roster has been changed to post based roster", and according to those instructions "it was ordered that the selection made on or before that date should not be disturbed and the necessary adjustment may be made in future". The Petitioners have denied the said averments in their Rejoinder. It is claimed that "it was ordered" that selection made on or before that date should not be disturbed. It is not even stated, by whom or when the order was passed. Nothing has been placed on record. The averments are as vague as they could be. It is also difficult to believe that selections had been made before 2.7.1997, when the impugned promotion order was issued on 4.9.1998 i.e. fourteen months later. I, therefore, reject this explanation of the Respondent DTC to deny timely promotion to the Petitioners. In respect of vague and incomplete averment the Supreme Court, in the case of Bharat Singh v. State of Haryana has stated as follows:

In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it.

Following the said principle laid down by the Supreme Court, I do not accept the defense set up by the Respondent DTC in its counter affidavit.

12. Since the Petitioners ranked senior to Respondents No. 3 to 9 in the post of Traffic Inspector, it is clear that the Petitioners ought have been promoted to the post of Traffic Supervisor when the Respondent DTC promoted the private Respondents on 4.9.1998.

13. Learned Counsel for the Petitioner has stated, and this is also recorded in the earlier orders passed in this case, that in the meantime the Petitioners have retired from service. It is also stated by the learned Counsel that the Petitioners had also been promoted as Traffic Supervisor during the pendency of the writ petition and the Petitioners have retired from service as Traffic Supervisor.

14. The Petitioners have prayed for the following two reliefs in this writ petition.

(a) A writ of Certiorari quashing the impugned order dated 4th September, 1998 of the Respondent No. 1 & 2;

(b) A writ of Mandamus directing the respondent No. 1 & 2 to act in terms and in accordance with law to consider the petitioner's candidature for being promoted as Traffic Supervisors w.e.f. from 4th September, 1998.

15. In view of the facts and circumstances of the aforesaid in my opinion the Petitioners are entitled to the grant of second relief since they appear to have been wrongly deprived of their promotion to the post of Traffic Supervisor while their juniors were promoted vide communication dated 4.9.1998 w.e.f. 9.9.1998. It is not the Respondents stand in the Counter Affidavit that the Petitioners were not eligible to be considered for promotion when Respondent Nos. 3 to 9 were promoted on 4.9.1998. In fact they say that "the Petitioners are likely to be promoted in due course".

16. I, therefore, allow this writ petition and direct that the Petitioners should be treated as having been promoted as Traffic Supervisor w.e.f 9.9.1998, on which date their juniors were granted promotion.

17. Since the Petitioners have retired from service in the meantime the Respondents should grant the consequential benefits of revision of pay and other allowances admissible to them under their service conditions and, if necessary, recalculate their pensionary benefits, gratuity etc. as per the rules.

18. The Respondents should comply with the aforesaid directions within two months of the receipt of certified copy of this judgment.

19. No order as to costs.