Delhi High Court
Sushil Kumar vs Government Of Nct Of Delhi And ... on 22 March, 2010
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No.1969/2010
% Date of Decision: 22.03.2010
Sushil Kumar .... Petitioner
Through Mr.Shyam Babu, Advocate for the
Petitioner.
Versus
Government of NCT of Delhi and others .... Respondent
Through Mr.V.K.Tandon and Ms.Mamta Tandon,
Advocates for the respondents.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether reporters of Local papers may be YES
allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported NO
in the Digest?
ANIL KUMAR, J.
*
The petitioner has challenged the order dated 20.11.2008
passed by the Central Administrative Tribunal, Principal Bench, New
Delhi in O.A No.2470/2008, tilted as 'Sh. Sushil Kumar v. Government
of NCT of Delhi and others' dismissing his original application, seeking
direction to the respondent for relaxation of the rule, and consequent
thereto change of his cadre from the driver to that of Operation Theatre
Assistant.
The brief facts to comprehend the controversies are that the
petitioner was initially appointed as Nursing Orderly on 17th April,
2000, and he worked on the said post till 5th November, 2004. He was
promoted as Staff Car Driver w.e.f. 6th November, 2004 and his cadre
was changed.
For promotion to Operation Theatre Assistant, petitioner required
5 years experience. Since he did not have 5 years experience and
promotion also required changing petitioner's cadre from Staff Car
Driver, he made a representation to the concerned authorities, which
was rejected by order dated 26th June, 2007.
On rejection of the representation, the petitioner had filed an
Original Application No.1948/2007, which was disposed of by order
dated 22th April, 2008 directing the respondents that competent
authority should decide the relaxation sought by the petitioner. The
competent authority was Lieutenant Governor, and therefore, the plea
of the petitioner for relaxation for promotion to the post of Operation
Theatre Assistant was considered to be considered by the Lieutenant
Governor.
The request of the petitioner for relaxation for promotion to the
post of Operation Theatre Assistant was thereafter considered by the
Lieutenant Governor, and rejected by order dated 18th July, 2008. The
Lieutenant Governor also did not agree to change of cadre of the
petitioner. According to petitioner, he was not given any reason for
relaxing the eligibility criteria for promotion, and therefore, he sought
information under 'Right to Information Act, 2005.' The petitioner
thereafter, challenged the order dated 18th July, 2008 declining the
request of the petitioner for relaxation in the eligibility criteria for
promotion, and also relied on the Office Nothings regarding relaxations
which were obtained by the petitioner under 'Right to Information Act
2005.
The Tribunal has considered the pleas and contentions of the
petitioner including the copies of the Office Noting which were obtained
by the petitioner under the 'Right to Information Act 2005'. It was held
that the post of Staff Car Driver is not the feeder post for promotion to
the post of Operation Theatre Assistant. The Tribunal also noticed that
the writ petitioner had earlier changed his cadre from Nursing Orderly
to the staff Car Driver on account of availing higher scale, and he again
wanted to go to other cadre by shortening and circumventing the
eligibility rules, and in the circumstances, the decision of the
authorities not to grant him age relaxation was not found to be illegal or
irregular under and rules and regulations.
The Tribunal also noted that the relaxations were granted only
with a view to accommodate certain dependants/children of the
deceased employee in various departments as suitable post were not
available, and the post available in the hospital required experience of
certain years. Apparently, the petitioner cannot compare himself with
those who had been considered on humanitarian grounds as some of
them were appointed on the compassionate ground after the demise of
sole bread earner in their family.
Learned counsel for the petitioner has not been able to establish
that the petitioner has a right to change his cadre from the Driver to
that of Operation Theatre Assistant. It is noted that the petitioner had
not been permitted to change his cadre nor not allowing petitioner to
change cadre can be construed to illegal and unlawful.
In fact, since the petitioner wanted to avail higher scale, he had
changed his cadre from Operation Theatre orderly to that of the Driver
which was higher scale. The petitioner in order to cut short the avenues
of promotion as a right cannot claim that his cadre should be changed
again and he should also be granted relaxation which is 5 years for
promotion to the post of Operation Theatre Assistant. Since the
relaxation and change of cadre is within the discretion of the
respondent, the petitioner cannot claim the same as a matter of right.
Though the discretion is also to be exercised by the respondent
within certain norms, however, the learned counsel for the petitioner
has failed to make out any such case which will require any
interference by this court to direct the respondent to exercise the
discretion for change of cadre, and for relaxation of rules for promotion
in favour of the petitioner.
In the facts and circumstances, this Court does not find any such
illegality or irregularity in the order of the Tribunal which will
necessitate any interference by this Court in exercise of its jurisdiction
under Article 226 of the Constitution of India.
The writ petition, therefore, is without any merit, and it is
dismissed.
ANIL KUMAR, J.
MARCH 22, 2010 MOOL CHAND GARG, J.
'VK'
