Delhi Transport Corporation vs K.C. Anand
2007 Latest Caselaw 1825 Del

JUDGMENT

Mukundakam Sharma, C.J.

1. While filing the present appeal there appears to be inordinate delay. The impugned judgment and order which is under challenge in this appeal was delivered by the learned Single Judge on 11.3.2004 Along with the memorandum of appeal filed in the present case, an application is also filed for condensation of delay of 149 days in filing the appeal. The aforesaid appeal was returned to the appellant under office objection. There was again a delay of about 579 days in refiling the appeal. Consequently, another application seeking condensation of delay in refiling the appeal is filed by the appellant. The impugned judgment was pronounced on 11.3.2004 and admittedly the same was received in the head office of the appellant on 12.4.2004 The appeal, however, came to be filed in the Court on 9.8.2004 As to how time was spent and what steps were taken during the period 12.4.2004 to 9.8.2004 has been stated in para 2,3 and 4. A perusal of the same would indicate that as to what had happened between the period 12.4.2004 to 26.4.2004, when for the first time a legal opinion was asked for from the counsel by the law department, is not stated in the application. The said legal opinion was furnished by the counsel on 9.5.2004 Time was taken thereafter for processing the matter and ultimately the same was entrusted to the counsel under letter dated 23/24.6.2007. Even thereafter, it took almost 1' months for the appellant to prepare the memorandum of appeal and for filing the same in the court. No reasonable explanation of the delay is given in the application.

2. The appeal filed was also returned to the appellant under office objection and the appellant thereafter took 579 days to remove the objections. There is negligence and lack of diligence on the part of the appellant in preferring and prosecuting the aforesaid appeal at every stage.

3. However, in order to show that the appellant had a very strong case on merit, counsel for the appellant drew our attention to the impugned judgment and order. On his persuasion we also looked into the judgment and order passed by the learned Single Judge as also the other records. Since extensive arguments were made by the counsel for the appellant we propose to deal with the merit of the present appeal also.

4. The respondent joined Delhi Transport Corporation (in short DTC - earlier called DTU) as a Section Officer (Civil) on 25.3.1963. He went on deputation to ITDC as a Junior Engineer which post was re-designated as Assistant Engineer. He accordingly worked as an Assistant Engineer in ITDC while retaining his lien to the post of Section Officer (Civil) with the appellant-DTC. The respondent was finally reverted back on 24.10.1972 as an Assistant Engineer (Civil) to the DTC. On 5.5.1975 the respondent was posted in the stores and purchase department as Assistant Engineer(Civil) to look after the purchase work. The purchase department of the DTC has a cadre and there was a post of Deputy Purchase Officer, which was lying vacant. In January, 1977 the respondent made a representation that he be promoted to the said post. W.e.f. 17.3.1977 the respondent was granted ad-hoc promotion to the post of Deputy Purchase Officer which was in the pay scale of Rs. 700-1300. However, the respondent was reverted back to the post of Assistant Engineer(Civil) on 3.6.1978. The promotion of the respondent to the post of Deputy Purchase Officer was ad hoc. He was not made permanent against the said post and was reverted back to the post of Assistant Engineer. The lien of the respondent to the post of Assistant Engineer continued when he worked in ad hoc capacity as Deputy Purchase Officer.

5. In the meantime a post of Executive Engineer (Civil) in DTC fell vacant. The said post was a selection post and the method of recruitment was by promotion from Assistant Engineers. When the respondent was functioning as Deputy Purchase Officer on ad hoc basis, the appellant considered the cases of the eligible candidates waiting for promotion to the said post of Executive Engineer(Civil).

6. However, the case of the respondent was not considered for promotion on the ground that he did not meet the eligibility criteria. It is the case of the appellant that the respondent did not meet the eligibility criteria for being considered for promotion to the said post as he had not completed 5 years service in the grade. The fact, however, remains that the appellant joined as Assistant Engineer(Civil) on 24.10.1972 and in the due course i.e. on 24.10.1977 would have become eligible for being considered to the post of Executive Engineer (Civil) as by the said date he would have completed 5 years' of experience in the grade. The stand of the appellant is that since the respondent was posted as Deputy Purchase Officer w.e.f. 17.3.1977 and then again he was reverted back to the post of Assistant Engineer(Civil) on 3.6.1978, the said period cannot be counted as a period spent in the grade as the respondent was not working as an Assistant Engineer. On the aforesaid ground the appellant did not consider the case of the respondent for promotion to the post of Executive Engineer.

7. The learned Single Judge before whom the aforesaid writ petition was filed by the respondent held that the aforesaid stand taken by the appellant was wrong inasmuch as when the respondent was working as Deputy Purchase Officer on ad hoc basis, he was holding his lien in the post of Assistant Engineer(Civil) and, therefore, the service rendered by the respondent as Deputy Purchase Officer from 17.3.1977 to 3.6.1978 would have to be counted as service rendered by the appellant in his substantive post, i.e., the post of Assistant Engineer(Civil). The writ petition was accordingly allowed with the following directions:

Mandamus is issued to the DTC to convene a review DPC as on the date DPC met and considered promotions to the post of Executive Engineer (Civil) from the post of Assistant Engineer (Civil) resulting in the promotion of respondents No. 3 and 4. Needful be done within a period of 8 weeks from today. If the DPC holds that the petitioner was to be promoted and the placement of the petitioner in the select list renders him senior enough for being promoted to fill up the vacancies which were then available, promotion be effected in favor of the petitioner w.e.f. the date respondents 3 and 4 were promoted. In such eventuality, petitioner would be entitled to be placed in the pay scale applicable. Petitioner would be entitled to have the seniority reckoned w.e.f. the said date. If the petitioner is to be promoted, arrears would be paid within a period of 6 weeks together with interest @ 6% p.a. from the date payment became due till date of payment. Petitioner would also be entitled to the benefit of consequential promotions reckoning his promotion to the post of Executive Engineer (Civil) w.e.f. the date respondents 3 and 4 were promoted.

8. The issue that is raised before us is as to whether the aforesaid findings of the learned Single Judge could be said to be legal and valid - Mr. Vinay Sabharwal, learned Counsel appearing for the appellant submitted that since the respondent was holding a post of Deputy Purchace Offier outside the cadre of Assistant Engineer for more than one year and was not working as Assistant Engineer in the Corporation, therefore, the respondent did not meet the eligibility criteria for being considered for said promotion to the post of Executive Engineer and accordingly his case was left out from consideration.

9. We are, however, unable to accept the aforesaid contentions of the learned Counsel appearing for the appellant for the simple reason that when the respondent was functioning as Deputy Purchase Officer on ad hoc basis from 17.3.1977 to 3.6.1978, he was holding his lien in the substantive post of Assistant Engineer (Civil) in his own department and, therefore, the period of service rendered by him in the said post would be deemed to be appellant's service rendered in the post of Assistant Engineer. Under no circumstance and ground the respondent can be denied the benefit of the aforesaid services. The respondent was working on ad hoc basis against the post of Deputy Purchase Officer which was a post not within his avenue of promotion and once he is reverted back he has to be reverted back to his substantive post, which is the post of Assistant Engineer wherein he will get the benefit of services rendered by him. The respondent was not appointed in substantive capacity as Assistant Engineer, as if he was on deputation within the appellant organisation itself. That service cannot be taken away from the service period of the respondent, otherwise prejudice shall be caused to the respondent. The other persons who were junior to the respondent were considered and promoted. Although the respondent was eligible for such promotion, he was not considered for such position and promotion. The appellant acted illegally and without jurisdiction in not considering the case of the respondent for promotion to the post of Executive Engineer. We, therefore, do not find any infirmity in the findings and conclusions arrived at by the learned Single Judge. There is no merit in this appeal and the same is dismissed accordingly. The respondent shall be entitled to relief in terms of the order of the learned Single Judge.

10. It is unfortunate that this matter was kept pending in the High Court before the learned Single Judge for 25 years when finally it was disposed of in the month of March, 2004 Even thereafter the appeal came to be listed before this Court only on 23rd March, 2007 as the appellant took almost two years in refiling the appeal. With these observations the appeal is disposed of. There shall be no order as to the cost.