Delhi High Court
Dda(Slum) Sc/St Engineers Assoc. ... vs Dda & Ors. on 21 December, 2012
Author: Suresh Kait
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P (C) No. 3126/1992
% Judgment reserved on: 13.09.2012
Judgment delivered on: 21.12. 2012
DDA(SLUM) SC/ST ENGINEERS
ASSOC. & ORS. ..... Petitioners
Through: Mr. R.R. Kishore,
Adv.
versus
DDA & ORS. ..... Respondents
Through: Mr.Arun Birbal and
Mr. Paramhans, Advocates for
Respondent DDA.
Ms. Mini Pushkarna, Standing
Counsel with Mr. S. Tyagi,
Advocate for Respondent MCD.
Mr.Jagat Rana, Advocate for
Respondents No.6 & 7 / Delhi
Urban Shelter Improvement
Board.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J.
1. Vide the instant petition, initially the petitioners had sought the
following reliefs:-
"(i) That the act of non-consideration of the petitioner 2
to 5 and other similarly placed persons in the Cadre of
J.E.(Civil) for promotion to the post of Asstt. Engineer
(Civil) under Respondents 2 against the reserved posts of
A.E.(Civil) for SC/ST candidates by the Respondents 1&2
is arbitrary, illegal, discriminatory and consequently
further declaration that the petitioners and other similarly
placed persons are entitled for being considered for
promotion to the posts of A.E.(Civil) under Respondent 2
against 14 posts reserved for SC/ST category.
(ii) That the proposed act of the Respondent for de-
reserving the 14 posts of A.E.(Civil) or any other posts
reserved for SC/ST category of candidates is arbitrary,
discriminatory and illegal.
(iii) That act of Respondent 1&2 appointing the
J.E.(Civil) as A.E.(Civil) as on current basis and non grant
of pay based on equal pay for equal work and other
consequential relief.
(iv) Direction/order against all the Respondents and in
particular 1 to 4, restraining them from de-reserving the
14 posts or any other posts for A.E.(Civil) arbitrarily and
without following the due procedure on the subject.
(v) Direction, order against Respondent 1&2 directing
them to consider the plaintiffs and other similarly placed
J.E.s (Civil) for promotion to the 14 posts of A.E.(Civil)
against the reserved posts for SC/ST category and further
direction to give them consequential benefits therefore
within the stipulated period by holding special D.P.C.
(vi) Costs of the petition in favour of the petitioners and
against the Respondents be also granted.
(vii) Any other relief or reliefs as be deemed fit and
necessary in the facts and circumstances of the case be
also granted in favour of the petitioners and against the
Respondents to meet the ends of justice."
2. Thereafter, the instant petition was amended vide which the
following were the respondents as per the amended memo of parties:-
"1. Municipal Corporation of Delhi,
Town Hall,
Delhi
Through Commissioner.
2. Commissioner (Slum - I )
Delhi Development Authority, now under M.C.D.
Vikas Bhawan Annexee,
New Delhi.
3. Director (A & V) Slum Wing)
Delhi Development Authority, now under M.C.D.
Vikas Kutir,
I.T.O.
New Delhi-110 002.
4. Union of India
M/o Urban Development,
Nirman Bhawan, New Delhi
Through Secretary.
5. Union of India
Min. of Personnel, Public
Grievances and Pensions,
Department of Personnel & Trg.
North Block, New Delhi
Through Secretary.
6. The National Commission of SC & ST,
5th Floor, Lok Nayak Bhawan,
New Delhi-110 003.
Through Chairman ...........Respondents."
3. Subsequently, the instant petition was further amended and
respondent No.7 and 8 were impleaded as respondents as under:-
"7. Delhi Urban Shelter Improvement Board, through
their Chairman, Govt. of NCT of Delhi, A-Wing, Delhi
Secretariat, I.P. Estate, New Delhi-110002.
8. Chief Executive Officer, Delhi Urban Shelter
Improvement Board, Govt. of NCT of Delhi, Puranvas
Bhava, I.T.O, I.P. Estate, New Delhi-110002."
4. The facts of the case are that the petitioner No.1 is the registered
Association of Engineers belonging to Scheduled Castes/Scheduled
Tribes category under the then Respondent No.2, presently under the
Respondent No.7, has been espousing the cause of Engineers
belonging to the SC/ST categories including the petitioners No. 2 to 5
herein under the Respondent mentioned above. The details of the
petitioners No. 2 to 5 is as under:-
Name Date of joining Educational
Qualification
1. Phool Singh, 10.08.1981 Diploma Holder
petitioner No.2 working as Assistant
Engineers(Civil) w.e.f.
05.02.1991 on current
/ad-hoc basis
2.Dori Lal, 20.04.1983 Diploma Holder
Petitioner No.3
3. Ram Dass, 04.06.1984 Degree Holder
petitioner No.4 working as Assistant
Engineers(Civil) w.e.f.
05.02.1991 on current
basis
4.Ravinder 20.09.1983 Diploma Holder
Kumar, petitioner
No.5
5. The then respondent No.2 was the official head of the Slums
Wing of Respondent No.1. The Slum Wing of the Delhi Development
Authority was having its separate entity for the purpose of its
establishment. However, from 1982 onwards the DDA (Salaries,
Allowances and Conditions of Service) Regulations, 1961 were
extended to the employees of Slum Wing without disturbing its
establishment/separate entity. As such, all appointments, promotions,
regularisations etc. in the Slum Wing as based upon the practice and
rules adopted in the DDA as per Annexure P-1.
6. The posts of Assistant Engineer (Civil) under the Respondent
No.2 carries the pay scale of Rs.2,000-3,500. The educational
qualification for the said post was Diploma in Civil Engineering or
Graduate in Civil Engineering. 50% posts of Assistant Engineer
(Civil) were to be filled through direct recruitment or deputation and
50% seats were to be filed by promotion from amongst the eligible
Junior Engineers(Civil). For being considered for promotion as
Assistant Engineer(Civil), a Junior Engineer(Civil) should be graduate
in Engineering with 3 years service; or Diploma in Engineering with 8
years service who were permanent Junior Engineers(Civil) as per
Annexure P2 of the petition.
7. However, the then Respondents No.1&2 decided to
abandon/waive the provision for filling up of seats through direct
recruitment and had been following the procedure for filling up the
posts of Assistant Engineers(Civil) through promotion on hundred
percent basis. Meaning thereby, the said recruitment rules
prescribed 50% through direct recruitment or deputation was
completely discarded by the respondents. The post of Junior
Engineer(Civil) under the Respondent No.2 was the feeder cadre for
appointment to the post of Assistant Engineer(Civil). The respondent
No.2 had accordingly promoted 68 departmental Junior
Engineers(Civil) to the post of Assistant Engineer(Civil) against the
sanctioned 68 posts of Assistant Engineers(Civil) so far. However, the
respondents No.1&2 had allowed only 7 promotions as Assistant
Engineers(Civil) from Junior Engineers(Civil) from amongst the
SC/ST candidates as against their justified quota of 16%.
8. The respondents were required to maintain the 40 point Roster
in employment in prescribed proforma to give proper effect to the
reservation policy of Respondent No.5. Principle and Procedure of
Rosters have been given in Chapter 4 at page 22 in the Brochure of
Reservation of SC/ST in Services, 1987 edition published by
respondent No.5. The same is annexed as Annexure P3 to the writ
petition.
9. It is further stated that there was clear and specific policy of the
Government that de-reservation of the posts under reserved category
could only be done in unescapable circumstances when the eligible
candidates were not found fit from the category of SC/ST employees
after making all serious and bonafide efforts and that too only after the
prior permission and consultation with respondents No. 4 to 6 who
were also required to examine the proposal to the effect of de-
reservation with open mind and not mechanically.
10. It is pointed out by the ld. Counsel for petitioners that the
respondents No. 1&2 have failed to implement the policy of
reservation effectively and thus given promotions to Junior
Engineers(Civil) under SC/ST categories to the post of Assistant
Engineers(Civil) against 7 posts only as against their justified quota
of 16 as per 40 point model roster. As such 9 posts of Assistant
Engineer(Civil) for SC/ST quota candidates were still due to be filled
amongst the SC/ST Junior Engineers(Civil) as backlog vacancy.
Further 18 posts of Assistant Engineer(Civil) were still vacant under
Respondent No.2. As per the 40 point model Roster, 5 posts should
have gone to SC/ST category of Junior Engineers(Civil).
11. Learned counsel appearing on behalf of the petitioners submitted
that if the 40 point Roster was applied properly and reservation policy
implemented effectively, 14 posts of Assistant Engineers(Civil) should
have gone to the SC/ST quota. There were sufficient number of Junior
Engineers(Civil) with Respondent No.2 under the SC category, in
addition to the petitioner 2 to 5 who were eligible and entitled for being
considered for the post of Assistant Engineers(Civil). If the
respondents did not have malafide and were willing to implement the
policies of the Government, the said 14 seats could be filled up from
amongst the reserved category of Junior Engineers(Civil).
12. It is pertinent to mention here that the respondents No.1 & 2
never made bonafide efforts to fill up the vacant posts of Assistant
Engineers(Civil) from amongst the eligible and available working
qualified Junior Engineers(Civil) with ulterior motives. It is further
submitted that during 1989-92, there had been special drive/policy of
the Government to fill up the vacant posts of SC/ST category in its
organization establishments with a view to provide the proper
representation to the SC/ST as envisaged in the Constitution.
However, the Respondents No.1&2, despite the said special drive and
clear instructions of the Government of India as regards reservation
policy, never intended nor does ever now intend to fill up the vacant
posts of Assistant Engineers(Civil), who were already working for
years without any complaint.
13. Learned counsel for the petitioners further submitted that there
were arbitrariness and favouritism, nepotism under Respondents 1&2
with the view to give promotion to relatives of its officers directly
attached to him and particularly relatives of Deputy Director( Co-
ordination) and Director(A&V) and deprive the eligible candidates
from amongst the petitioners and other Junior Engineers(Civil) of SC
category their rightful claim for being considered for promotion under
reservation policy of the Government of India and hold DPC to
consider the general candidates for filling up 14 posts of Assistant
Engineers(Civil) after de-reserving the said posts arbitrarily. It is
asserted that the respondents No.1&2 did not follow the procedure of
de-reservation of posts properly and the de-reservation was obtained by
suppression of material facts and non-application of mind by
respondents No. 1 to 6, who exercised their authorities arbitrarily and
mechanically instead of judiciously.
14. He further submitted that the petitioners No. 1&3 are already
working as Assistant Engineers (Civil) and discharging the duties of
Assistant Engineers (Civil) sincerely and satisfactorily since
05.02.1991. However, the respondents No.1&2 as regards
promotion to the post of Assistant Engineer(Civil) on ad-
hoc/temporary basis also, had been adopting arbitrary practice by
terming the Assistant Engineers(Civil) promoted on ad-hoc basis;
as on current basis and putting the arbitrary clause like, that such
promoted Assistant Engineers(Civil) would not be entitled for
regularization, seniority, scale etc.
15. Thus, the respondents No.1&2 had been promoting only the
eligible Junior Engineers(Civil) to the post of Assistant Engineer(Civil)
on current/ad-hoc basis after due consideration of their length of
service record. However, the Junior Engineers(Civil) including the
petitioners 1 & 3 were being discriminated by the respondents no.1&2
by denying them the equality in pay similar to the regularly appointed
Assistant Engineers(Civil), regularization and seniority with the date of
their appointment as Assistant Engineers(Civil) on current basis. Thus,
the respondents discriminated the petitioners and violated their
fundamental rights under Article 14 and 16 of the Constitution besides
being violative of the law laid down by the Apex Court.
16. He further submitted that despite various representations by the
Association/petitioner No.1, espousing the cause of the petitioners No.
2 to 4 and similarly placed persons, the respondents No. 1 to 4 were
failed to consider the rightful and justified claims of the petitioners and
similarly placed Junior Engineers(Civil).
17. Ld. counsel further submitted that had the respondents No.1&2
maintained the said 40 point model Roster, the SC/ST category of
employees were entitled for 16 posts of Assistant Engineers(Civil) out
of which only 7 posts had been given to this category till date and
there remains 9 posts vacant as backlog. Further, 18 seats/posts of
Assistant Engineers(Civil) had also fallen vacant out of which by
applying the percentage of reservation for the SC/ST employees, the
reserved quota comes to 5 nos. As such 14 posts should be filled up
only amongst the eligible category of SC/ST Junior Engineers(Civil)
who were available and eligible for the post of Assistant
Engineers(Civil).
18. He submitted that the respondents were duty bound to exercise
their supervisory powers in the matter of implementation of reservation
policy judiciously and effectively as the petitioners No. 2 to 4 were
discharging the same duties of Assistant Engineers(Civil) regularly
appointed/promoted under respondent No.2 and possesses the same
qualification and experience of the regularly appointed Assistant
Engineers(Civil). Besides, they were properly screened, considered for
the promotional posts and, therefore, the petitioners No.2 and 4 and
other similarly placed Assistant Engineers(Civil) termed as on current
basis by the respondent 1&2 were entitled for equal pay for equal work
and other consequential benefits.
19. In the counter affidavit filed by the respondents, it is admitted
that the position of direct recruitment of Assistant Engineers(Civil) in
Slum & JJ Department could not be strictly observed in accordance
with the Recruitment Rules of DDA till 1989. During the year 1989, 2
posts of Assistant Engineer(Civil) were filled up through direct
recruitment from ST category and there is a proposal to fill up 5 vacant
posts of Asstt. Engineers(Civil) through direct recruitment by inviting
application from the eligible candidates. The vacancies of SC/ST were
also filled up on deputation from other departments, about 10 in
number.
20. It is further stated that 48 Junior Engineers were promoted as
Assistant Engineers(Civil) and 2 ST candidates were directly recruited.
In all, 15 roster points which were to be filled up by SC/ST candidates
during the years 1974 to 1987, could be filled up to 66 roster points.
Out of these 15 roster points, only 5 roster points have been filled up
through promotions of 5 Diploma holder Junior Engineers belonging to
SC categories as Asstt. Engineer(Civil) up to 1987 remaining the
backlog of 10 points.
21. As regards de-reservation of reserved posts, it is stated if no
suitable candidates were available in reserved category, the said
reserved posts were de-reserved as per the instructions of Government
of India relating to SC/ST category before the said vacancies were
filled up by the candidates of General category and the reservations
carried over to subsequent years. However, after three recruitment
years, if no SC/ST candidate is available in consideration zone, the
vacancies for SC/ST lapse therein.
22. It is further submitted that the reservations were carried over to
subsequent years and have lapsed after three recruitment years for want
of availability of eligible SC/ST candidates. As per Roster Register the
number of reservations carried over as on 01.01.1988 was 3 for SC and
2 for ST with lapse of reservations in respect of 2 points of 1984 of SC
and 3 points of 1974, 1979 and 1984 for ST.
23. Therefore, there was a proposal to hold a meeting of the review
DPC to consider the cases of Junior Engineers for their promotion as
Asstt. Engineers as per the Recruitment Rules to maintain parity
between Degree Holders and Diploma Holders.
24. It is further added that to keep proper watch on reservation
points, an officer of reserved category has been nominated as
representative of SC/ST category in the said Review DPC as per the
instructions of the Government of India in this regard. Out of 68
sanctioned strength 38 posts were purely temporary. No suitable
eligible SC/ST candidates were available up to recruitment year 1989.
25. Thereafter, the department was transferred from MCD to DDA
in 1974 and in the recruitment year 1974 to 1988 none of the
petitioners became eligible for consideration for promotion as Asstt.
Engineers (Civil). However, in 1981, 3 eligible SC candidates and in
1986, 2 SC eligible candidates were promoted as Asstt. Engineers
(Civil) against the reserved SC/ST quota.
26. It is also admitted in the counter affidavit that there were
sufficient number of Diploma Holders belonging to SC category who
became eligible for their promotion to hold the post of Asstt. Engineer
(Civil) in August, 1989 and onwards while no DPC meeting could be
materialised after 1987 due to administrative reasons.
27. It is further submitted that as and when the DPC meeting would
take place, the SC/ST candidates will also be considered for promotion
to the post of Asstt. Engineer(Civil) as per rules.
28. Further, it is submitted that as per orders dated 05.03.1991
passed in CW 250/1990 „Slum Wing, DDA Graduate Engineers
Association vs. DDA‟ parity between Degree Holders and Diploma
Holders 50:50 has to be maintained as far as possible. None of the
petitioner is eligible for consideration against Degree Holders quota of
50% for promotion. As such diploma holders Junior Engineers could
not be considered against the Graduates quota as their promotion
against graduates quota would be in contravention of the orders passed
by this Court in the aforesaid writ petition.
29. The respondents have further stated in the counter affidavit that
the DPC meetings were convened on 22.10.1990, 01.05.1991,
05.07.1991 and 08.10.1992 to fill up the vacant posts of Asstt.
Engineers(Civil) by promoting Junior Engineer (Civil) wherein
candidates of reserved category were also considered, but due to
various orders of this Court in various cases, the same could not be
materialised. In February, 1991 to cope up with the work the current
duty charge of the post of Asstt. Engineer (Civil) was given to 7 Junior
Engineers (Civil) in addition to belonging to SC category.
30. The petitioners filed rejoinder to the counter affidavit filed by
the respondent wherein it is stated that so far as the authority of
appointment related to Assistant Engineer (Civil) was concerned, the
same rested with the Vice-Chairman, D.D.A. prior to the transfer of
respondent No.2 under MCD and subsequent to transfer, the authority
of appointment has also been transferred to the MCD through the
Commissioners.
31. It is further submitted that the appointment of 2 ST candidates
as Assistant Engineer (Civil), as stated in the counter affidavit of the
respondents No. 1&2, could not be said as appointment against
promotional quota from the feeder cadre of Junior Engineers (Civil).
Since the post of Assistant Engineer (Civil) had been made
promotional by conduct and decision of the D.D.A. earlier, the
Respondents cannot deviate from the said policy decision without any
justifiable reasons. The said posts were promotional posts and should
have been allowed to go to SC category in terms of the policy of the
Government of India as contained in Chapter 11 at page 185-199 of
the Brochure on Reservation for SC & ST in service, 7th edition of
1987.
32. However, instead of making sincere and conscious efforts as
provided in the instructions of the Department of Personnel and
Training, the respondents No. 1& 2 have ordered promotion of 16
posts vide its letter dated 22.03.1993 arbitrarily and in violation of the
rules/instructions as regards reservation/concession to SC/ST category
of employees.
33. It is further stated in the rejoinder that as regards filling the post
of Asstt. Engineer(Civil) on deputation basis, the respondents have
tried to mislead this Court by not putting the correct facts. The
deputationists have no right to be regularised against the promotion
quota. Moreover, there were no deputationists working as Asstt.
Engineers (Civil) with the respondents No.1&2.
34. It is asserted that up to 1989, the respondents had made 68
recruitments to the posts of Asstt. Engineer(Civil) and on 22.03.1993,
16 posts and further on 30.04.1993, 01 post, by way of promotion.
Details of promotion/recruitment made by the respondents No.1&2
during 1974 to 1993 and representation given by them to SC/ST
category of employees were as under:-
Recruitment Promotion Posts Posts Posts
year made required given to carried
to go to SC/ST forward
SC/ST as
per
present
Model
Roster
SC ST SC ST SC ST
1974 11 2 1 - - 2 1
1975 3 1 - - - 3 1
1979 4 - 1 - - 3 2
1981 9 1 - 3 - 2 1
1984 14 3 1 - - 5 2
1985 14 2 1 - - 7 3
1986 3 - 1 2 - 5 4
1987 8 1 - - - 6 4
1989 2 1 - - 2 7 2
Carry forwarding upto 1993: 7 + 2=9
posts as backlog.
35. Ld. Counsel for the petitioner has further stated that as
mentioned above, 7 posts as „backlog‟ for SC and 2 posts for ST
remained to be filled in by adopting carry forward principle in
promotion as stipulated in the Brochure on Reservation for SC/ST in
service upto 1989. In the year 1993 as per existing vacancy of 5 posts
of SC, the SC/ST categories of Junior Engineer (Civil) were entitled
for promotion against more 5 posts. Thus, upto 1993, the SC/ST
category of Junior Engineer(Civil) were entitled for promotion against
9 posts as backlog and 5 posts afresh. There were sufficient members
of SC/ST candidates who could and should have been considered for
promotion against the reservation quota.
36. The extract from seniority list issued vide
No.GA/1020/6/84/2485 dated 29.07.1987/30.07.1987 showing
eligibility for promotion against reserved for SC/ST is as under:-
Sl. Name Date of Senio- Qualifi- Remarks
No. joining rity No. cation
1 Shri Phool 11.08.81 36 Diplo- Eligible
Singh s/o ma in in
Shri Ram Civil August
Swarup Engg. 1989
2 - - - - -
3 - - - - -
4 - - - - -
5 - - - - -
6 - - - - -
7 - - - - -
8 - - - - -
9 - - - - -
10 Shri Dori 20.04.83 73 Diplo- Eligible
Lal ma in in April
Civil 1991
Engg.
11 - - - - -
12 - - - - -
13 - - - - -
14 - - - - -
15 - - - - -
16 - - - - -
17 Shri 20.09.83 89 Diplo- Eligible
Ravinder ma in in Sept.
Kumar Civil 1991
Engg.
18 Shri Ram 04.06.84 104 Degree Degree
Dass holder comple-
ted on
31.08.87
37. Ld. Counsel for the petitioner submitted that the officers at serial
No.1, 10, 17 and 18 were eligible candidates available but the
respondent arbitrarily denied their claim of promotion and issued
arbitrary promotion order dated 22.03.1993.
38. It is further asserted that the power to de-reserve the post does
not empower the respondents or any other authority to exercise its
power arbitrarily. It is submitted that „recruitment year‟ means a
calendar year and for the purposes of three years limit for carry
forward of reserved vacancies means the year in which the recruitment
is actually made. The recruitment year has been defined and clarified
in the Brochure on Reservation for SC/ST 1987 edition page 185
Chapter 11. Explanation and relevant instructions cited in pages 189 to
199. There was no recruitment by way of promotion after 1987 and
thereafter numerous Junior Engineers (Civil) were eligible for
promotion against the reserved vacancies of Assistant Engineer(Civil)
for SC/ST category. The respondents from the period 1974 till date
never bothered to fill in the vacancies reserved for SC/ST candidates.
Besides, the respondent Department also did not follow the requisite
procedure meant for ensuring the achievement of the Constitutional
objective and cannot be allowed to discriminate petitioners on arbitrary
grounds in mechanical manner.
39. It is further asserted that the entire DPC proceedings were unfair
and illegal. No agenda of the DPC was fixed nor was the DPC
properly constituted. The DPC meeting was stated to had been held on
22.03.1993, on the same day the Select List was prepared and without
approval of the appointing authority, promotion orders had been issued
with the ulterior motives on the same day at late hours in the night by
the respondent No.2 in order to deprive the right of the bonafide
candidates for being considered for promotion. Subsequent to the
transfer of Slum and JJ Wing of the DDA under respondent No.1, the
respondent No.1 became the appointing authority. Therefore, any
promotion order issued on the basis of Select List which has no
approval of the appointing authority was arbitrary and illegal.
40. Moreover, the Degree holder and Diploma Holder Junior
Engineers were part of the same Cadre of Junior Engineer (Civil)
which has been the feeder cadre for the post of Asstt. Engineer (Civil).
They could not be considered for promotion separately against the
promotional post. The said four candidates from SC/ST category were
eligible for promotion in the year 1989, as mentioned above, as per
extract of seniority list cited above.
41. Counsel for the petitioner further submitted that the respondents
had tried to mislead this Court by stating that none of the petitioners
were entitled for promotion against 50% quota of Degree Holders. It is
submitted that after having been appointed as Junior Engineer(Civil)
and made permanent, all such Junior Engineers(Civil) form a class. As
per recruitment rules, for being considered for promotion as Assistant
Engineer(Civil), a Junior Engineer(Civil) should be graduate in
Engineering with 3 years service or Diploma Holders with 8 years
service who were permanent Junior Engineers. Having acquired the
said qualification, there was no point of discrimination between Degree
Holder and Diploma Holder. The posts were promotional which were
to be filled on the basis of seniority-cum-fitness. There was no quota
rule for Degree Holder nor is there speaking order in the CW(P)
No.250/1990 passed by this Court. Even otherwise, denial of
promotion to Diploma Holders SC/ST candidates after acquiring
sufficient service prescribed under the Recruitment Rules against
reserved promotion post of Asstt. Engineer(Civil) would be
discriminatory.
42. It is pertinent to note that the Slum & JJ Department of MCD in
the minutes of meeting on Review DPC held on 28.01.2010, after due
deliberations, resolved as under:-
"(i) Shri Ram Dayal Ram and Shri D.K. Singh, SC
candidates had already been promoted to the post of
AE(Civil) w.e.f. 5.9.2002. As regards backlog cases of
four candidates of SC category, a review DPC was
constituted for filling up the backlog vacancies but, the
Hon‟ble High Court had passed an interim order in
WP(C) No.16955-960 of 2004 titled „Braham Pal Singh
& Ors. vs. MCD‟ on 11.10.2006 to the effect that "till the
final disposal of the writ petition, no further promotion of
AE will take place." To vacate the stay orders, the
department has also moved an application in Hon‟ble
High Court. Since, there are stay orders this department
could not proceed further to take action as per the
directions of the National Commission for Scheduled
Castes and Scheduled Tribes.
(ii). In 1993, as per High Court orders, to bring parity
between Degree Holders and Diploma Holders, year
wise DPC was held on 01.01.1989, 01.01.1990,
01.01.1991 and 01.01.1992 and only degree Holder JEs
were promoted as AE(Civil). During these years only
one SC Degree Holder could be promoted as no other SC
candidate having degree qualifications was eligible.
Diploma Holder SC candidates were eligible and
available but could not be promoted due to the above
reason.
(iii) Since 1974, the posts of AE(Civil) had been filling
up 100% by promotion except the direct recruitment
made in 1989 under special drive.
(iv) As per vacancy based roster upto 1996, 15 SC
points & 8 ST points become available against which 12
SC points were filled up. Later on, with a view to clear
the backlog of SC, 4 SC candidates were granted relate
back promotion from 1996. Thus in total 16 SC points
were filled up. One more point of SC became available
before 2.7.1997. In total against 16 points of SC & 8
points of ST, only 16 candidates were promoted thus
leaving backlog of 8 points.
(v) No doubt there is stay orders with regard to
promotion of JEs to AEs in the case of Shri Braham Pal
Singh but as per findings of the National Commission for
STs, Shri V.S. Fonia, AE(Civil)-ST has been granted
notional promotion w.e.f. 1997, the date he became
eligible for promotion against ST point vide O.O. dated
24.10.2007 i.e. after the "stay orders" and in this regard
no orders against this, has been passed by the Hon‟ble
Court as it was not a fresh promotion. On the same
analogy, the case of the above mentioned AEs of SC
category, can be considered for granting notonal
seniority from the dates of availability of reserved points,
provided they became eligible on that date.
(vi) Sh. Suresh Kumar was promoted in his own
seniority and Sh. C.P. Singh, AE who was reverted back
to the post of JE(C), has again been granted current duty
charge of the post of AE(C) w.e.f. 7.03.06. Besides above,
under special drive for SC/ST, 2 ST candidates was
appointed directly as AE(Civil) in 1989-90.
(vii) The following AE (Civil) of reserved category are
working in this department at present,
Sr. Name SC/ST Remarks
No.
1 Sh. Ved Prakash ST On ad-hoc basis
2 Sh. Amar Singh SC Presently looking
as EE on CDC
3 Sh. Chattar Pal SC Presently looking
Singh as EE on CDC
4 Sh. Ram Dass SC Presently looking
as EE on CDC
5 Sh. P.D. Ashok SC Presently looking
as EE on CDC
6 Sh. Phool Singh SC
7 Sh. Kamaljeet Singh SC
8 Sh. Mangoo Singh SC
9 Sh. Vijay Pal Singh SC
10 Sh. Rajender Singh SC
11 Sh. Amar Nath SC
12 Sh. K.L. Maurya SC
13 Sh. Dori Lal SC
14 Sh. Suresh Kumar SC
15 Sh. Anil Kumar SC
16 Sh. V.S. Fonia ST
17 Sh. D.K. Singh SC
18 Sh. Ram Dayal Passi SC
19 Sh. C.P. Singh SC Retired on
31.12.09.
(viii) After examining/analyzing the above stated facts,
the Review DPC observed and recommends for the
action for giving relate back promotion from the post of
JE(C) to AE (C) to the following officials of SC/ST
category, as mentioned against each, at the respective
roster points, hereunder:-
Reserved points Filled up by Should Remarks
became in the year had been
available (on roster filled up as
point) per Roster
Point of
SC/ST (on
roster
point)
SC-1/1974 Sh. Amar
Singh
C1/21
ST-4/1974 Sh. Om
Prakash
C1/22
SC-8/1974 Sh. C.P.
Singh
C1/23
SC-14/1975 Sh. Ram
Saran
C2/17
ST-17/1979 Sh. Shanti
Swaroop
C2/18
SC-22/1981 C/F No
SC/ST
eligible
SC-28/1984 C/F No
SC/ST
eligible
ST-31/1984 C/F No
SC/ST
eligible
SC-36/1984 C/F No
SC/ST
eligible
SC-1/1984 C/F No
SC/ST
eligible
ST-4/1985 C/F No
SC/ST
eligible
SC-8/1985 C/F No
SC/ST
eligible
SC-14/1985 C/F No
SC/ST
eligible
ST-17/1986 C/F No
SC/ST
eligible
SC-22/1987 C/F No
SC/ST
eligible
SC-28/1988 C/F No
SC/ST
eligible
ST-31/1988 C/F No
SC/ST
eligible
1989 Phool Against
Singh SC-22/81
(11.8.89)
C2/27
1989 Kamaljeet Against
Singh SC-28/84
(13.8.89)
C2/28
1989 Mangoo Against
Singh ST-31/84
(11.8.89)
C2/29
1989 C.P. Singh Against
(01.10.89) SC-36/84
C2/30
C/F SC-36/1990 Ram Dass Against
(31.8.90) SC-1/84
C2/31
1991 Vijay Pal Against
Singh ST-4/85
(14.1.91)
C2/32
1991 Rajender Against
Singh SC8/85
(25.1.91)
C2/33
1991 Amar Nath Against
(14.1.91) SC-14/85
C2/34
1991 K.L. Against
Maurya ST-17/86
(8.4.91)
C2/35
1991 Dori Lal Against
(24.8.91) SC-22/87
C2/36
1991 D.K. Singh Against
(4.4.91) SC-28/88
C2/37
1991 Suresh Against
Kumar ST-31/88
(30.9.1991)
C2/38
1991 Ram Dayal Against
Ram SC-36/90
(19.9.91)
C2/39
SC-1/1992 Rajender Against
Kumar JE SC-1/92
(20.9.91)
C3/1
ST-4/1996 Balraj ST Against
(Resign) ST-4/96
C3/4
SC-8/1996 P.D. Ashok Against
(11.1.93) SC-1/92
C3/8
SC-14/1996 V.S. Against
Mehra, JE SC-8/96
(20.9.91)
C3/14
ST-17/1996 V.K. Against
Bharti, JE ST-17/96
(20.9.91)
C3/17
SC-22/1997 Ravinder Against
Kumar, JE SC-22/97
(20.9.91),
C3/22
(ix) If the above said JEs/AEs (C) of reserved category
may be given relate back notional promotion at the point,
as stated above, when the reserved points became
available, the Review DPC also observed that there will
be the following repercussions:-
(a) The above position may be appraised to the Hon‟ble
High Court of Delhi, Central Administrative
Tribunal and National Commission for the SCs as a
number of court cases are pending for adjudication.
(b) If the above recommendations are implemented by
the Department, then the same shall be subject to the
outcome of the various Court cases filed by various group
of engineers and are pending for adjudication in the
Hon‟ble High Court of Delhi and Central Administrative
Tribunal.
(c) Some degree Holder AEs promoted in 1988, 1989
and 1990, who have recently been assigned Current Duty
Charge of the post of EE(C), will be reverted back to the
post of AE(C), as the same was assigned as per orders of
H.C. of Delhi in C.C.P. in CWP No. 250/00.
(d) Sh. P.D. Ashok of SC category having Degree
qualifications will be placed below the Diploma Holder
SC Candidates who became eligible prior to Sh. P.D.
Ashok.
(e) The position as admitted vide letter No. D-
935/AD(Admn.)S&JJ/06 dt. 28.7.06 issued under the
signatures of the then Dy. Dir.(Admn.) regarding backlog
of 4 number of vacancies in the promotion from JE(C) to
AE(C) shall be given effect only after the stay is vacated
in the case titled as "Braham Pal Singh & Ors. Vs. MCD
& Ors., presently pending in the CAT as TA from the
Hon‟ble High Court of Delhi. Similarly, the cases of Shri
V.S. Fonia (ST-diploma holder), promoted as AE(C) on
27.10.97 and Shri Anil Kumar (SC-degree holder)
promoted as AE(C) on 5.9.2002, will be adjusted in the
post based roster as they became eligible in their
respective category after 1.7.97 i.e, the date from which
the post based roster becomes operational.
(f) The JEs of ST category who are now eligible for
promotion will be promoted after promotion of SC
Candidates.
The above recommendation of the review DPC may
please be placed before the Competent Authority for
consideration for passing appropriate orders."
43. After hearing, ld. Counsel for the parties, it is established that
the Recruitment Rules of the respondent Department are clear
regarding the promotion to the post of Assistant Engineers (Civil). The
promotion has been made from the feeder category of Junior
Engineers. The particular feeder category consists of Junior Engineers
having qualification of Graduation in Civil Engineering or Diploma in
Civil Engineering. The Recruitment Rules further prescribed that
diploma holder having 8 years experience and degree holder having 3
years experience are entitled to get promoted to the post of Assistant
Engineer (Civil). Thus, the feeder category of Junior Engineers forms a
distinct class in respect of the educational qualifications, but based on
the experience.
44. In the present case, the petitioners no. 2, 3 & 5 are diploma
holders and joined in the respondent department as Junior Engineers
(Civil) on 10.08.1981, 20.04.1983 and 20.03.1983 respectively. All of
them became eligible for promotion to the post of Assistant Engineer
(Civil) on 10.08.1989, 20.04.1991 and 20.03.1991 respectively. The
petitioner no. 4, degree holder joined in service as Junior Engineer and
became eligible to get promoted to the post of Assistant Engineer
(Civil) on 04.06.1987 as per the policy prescribed in the recruitment
rules.
45. The peculiar fact that is emerging regarding the date of
eligibility of the petitioners to get promoted to the post of Assistant
Engineers falls during the period from 1987 to 1991. As stated in the
counter-affidavit by the respondents that the promotion had been
carried out during the years 1974 to 1987. During the said period, the
roster points earmarked for SC / ST were 15, out of which 5 roster
points had been filled from the SC / ST category and 10 points
remained as backlog.
46. The petitioners have established the claim to get promotion on
the basis of non-compliance in the process of de-reservation of posts
reserved for SC / ST candidates because of the fact that the
respondents have stated in their counter affidavit that the roster points
could not be filled up even in the 3rd recruitment year, due to non-
availability of eligible SC / SC candidates, were lapsed as per rules.
Moreover, to watch all these things, an official of SC / ST category
was nominated as member / representative of SC / ST in DPC.
47. However, the respondents have not followed the procedure
prescribed by Department of Personnel and Training, DOP&T, Govt.
of India in O.M. No. AB 14017/30-89-Estt. (RR) dated 10.07.1990
wherein it is stated that the recommendation has been examined and it
has been decided that where recruitment to a grade is made both by
promotion and direct recruitment i.e. where separate quotas for
promotion and direct recruitment are prescribed in the recruitment
rules, reserved vacancies falling in the promotion quota which cannot
be filled due to non-availability of eligible persons belonging to
Scheduled Castes and Scheduled Tribes in the feeder cadre may be
temporarily diverted to the direct recruitment quota and filled by
recruitment of candidates belonging to Scheduled Castes or Scheduled
Tribes as the case may be in accordance with the provisions relating to
direct recruitment contained in the recruitment rules. In the subsequent
year (s) when reserved vacancies in the direct recruitment quota
become available they may be diverted to the promotion quota to make
up for the vacancies diverted earlier and filled from Scheduled Caste /
Scheduled Tribe candidates in the feeder cadre who might by now have
become eligible for promotion. The exchange of vacancies in this
manner will ensure that the structure and composition of the cadre
remain unaffected over a period.
48. In respect of Group A and Group B posts, the concurrence of the
Department of Personnel and Training, Govt. of India and the Union
Public Service Commission is essential. The respondents fail to
establish that they took the concurrence from the DOP&T on de-
reserving the quota meant for the reserved category. Thus it
establishes that the point of non-compliance of mandatory provision
has not been followed by the respondent department prior to the
decision of de-reservation of reserved posts. Therefore, it is
clear that respondent department has not followed the due procedure
for the de-reservation of posts.
49. As admitted by the respondents in Para 11 of their counter-
affidavit that there were sufficient number of diploma holders
belonging to SC Category who became eligible to get promoted to the
posts of Assistant Engineer (Civil) in 1981. Moreover, respondents
further admit that subsequent to 1987, DPC meeting could not be
materialized due to administrative reasons. Consequently, respondent
department could not identify the persons eligible for considering in
the promotion zone and to give effect to the promotion in respect of
persons, who qualifies.
50. Subsequent to 1987, the Department had conducted DPC on
22.10.1990, 01.05.1991, 05.07.1991 and 08.10.1992 to fill up the
vacant posts of Assistant Engineers by promoting the Junior Engineers
(Civil) wherein the candidates belonging from reserved category were
also considered and same could not be materialized because of the
various orders that has been passed by this Court. It is admitted by the
respondents that the criterion followed in DPC for the promotion to the
post of Assistant Engineers (Civil) was to bring a parity between the
degree holders and diploma holders whereas the recruitment rules
formulates the Junior Engineers as a distinct class.
51. It is important to note that on 28.01.2000, respondent Slum and
JJ Department of Municipal Corporation of Delhi held a review
meeting on Minutes of DPC, which was held in 1993 and 1996
wherein the subject matter was regarding the promotion to the post of
Assistant Engineers from the category of SC / ST during the period
from 1988 to 1992. Para 6 of the same is reproduced as under:
"The main reason for not filling up the backlog vacancies
is that as per RRs of DDA as followed in this department
and the High Court Orders dated 05.03.1991, to bring
parity between degree holders and diploma holders. The
Hon‟ble Supreme Court of India vide its order dated
17.04.2007 has also decided that there is water tight
compartment. Accordingly, neither the degree holders
can go in the row of diploma holders nor the diploma
holders can go in the row of degree holders. Now in DDA
also it has been decided, later on as conveyed vide letter
of DD(P)-II dated 29.05.2008 that the DDA has followed
to divert the post of AE (C) meant for degree holders
reserved for SC category to diploma holders belonging to
SC category due to non-availability of adequate number
of degree holders of SC candidates in the feeder cadre of
JE (Civil)."
52. It is further recorded that since there was a stay order in the
Brahmpal‟s case, the department could not proceed further to take
action as per the directions of the National Commission for SC / ST.
However, the same review meeting noted the fact that the Department
has followed the directions of the National Commission for SC / ST in
case of V.S. Fonia, who was granted notional promotion as Assistant
Engineer w.e.f 1997 and came to a specific conclusion that the
promotion in relation to V.S. Fonia was not a fresh promotion.
53. From the above, it is established that the Department could have
taken the same analogy with respect to the Junior Engineers who
belongs to SC / ST category for granting the notional promotion from
the date of availability of reserved points.
54. The review DPC of the respondent, as mentioned above, also
came to a specific observation as regards the promotion of Junior
Engineers who are diploma holders. In 1983, to bring the parity
between degree holders and diploma holders, year-wise DPC was held
relating to 1988, 1989, 1990, 1991 and 1992. During these periods,
one degree holder Junior Engineer who belongs to SC category got
promoted to the post of Assistant Engineer and made it clear that the
Junior Engineers (Civil) having the qualification of diploma, who are
belonging to SC category were available to get promoted. Thus, it
signifies the claim of the petitioners who are diploma holders.
Importantly there were no court orders prior to 05.03.1991.
55. Undisputedly, since 1974, the Posts of AE (Civil) had been filled
up by way of promotion except the direct recruitment made in 1989.
From the year 1974 to 01.07.1997, the scheme of reservation had been
regulated in accordance with the vacancy based roster. As per the
vacancy based roster, the review committee of the respondent
recommended the notional promotion for SC / ST category including
the petitioners. Thus the respondent department also clearly admits the
claim of the petitioners in respect of the promotion to the post of
Assistant Engineers (Civil).
56. It will not be out of place to mention, what has been recorded
by the review DPC in its meeting as per the Table in Para 42 above,
that if the above JEs/AEs (C) of reserved category may be given relate
back notional promotion at the point, as stated above, when the
reserved points became available, the Review DPC also observed that
there will be the following repercussions:
(a) The above position may be appraised to the Hon‟ble
High Court of Delhi, Central Administrative
Tribunal and National Commission for the SCs as a
number of court cases are pending for adjudication.
(b) If the above recommendations are implemented by
the Department, then the same shall be subject to the
outcome of the various Court cases filed by various
group of engineers and are pending for adjudication
in the Hon‟ble High Court of Delhi and Central
Administrative Tribunal.
(c) Some degree Holder AEs promoted in 1988, 1989
and 1990, who have recently been assigned Current
Duty Charge of the post of EE(C), will be reverted
back to the post of AE(C), as the same was assigned
as per orders of High Court of Delhi in C.C.P. in
CWP No. 250/00.
(d) Sh. P.D. Ashok of SC category having Degree
qualifications will be placed below the Diploma
Holder SC Candidates who became eligible prior to
Sh. P.D. Ashok.
57. In view of the above, the admitted fact is that the petitioners are
entitled to get promotion to the post of Assistant Engineers as per the
vacancy based roster, which was prevalent at that time. Subsequent to
1987, the scheme of reservation for the special class under the
Constitution is implemented in the nature of post-based roster system.
During the pendency of this Writ Petition, the policy of reservation has
been changed from the nature of vacancy-based roster system to post-
based roster.
58. The petitioners, herein witnessed both the systems,
unfortunately, the respondent Department could not place the
petitioners as per the reservation scheme in the promotion. The instant
petition was filed in the year 1992, taking into consideration all the
developments in the last 20 years, and in view of the equity, I direct the
respondent department as under:
1. The petitioner nos. 2, 3, 4 & 5 be given notional
promotion w.e f. 1989, 1991, 1987, 1991 respectively by
placing all the petitioners in the respective roster point.
2. They shall be entitled to get consequential benefits as per
the rules.
3. Respondent department shall take further steps to
rearrange the seniority list as per the recruitment rules in
force for the purpose of promoting the reserved category
Junior Engineers (Civil) to the post of Assistant Engineers
(Civil) without following the parity principle between
degree holder and diploma holder Junior Engineers.
This is so required, because after some years of service, it
became the one category i.e. the feeder category.
4. The respondents are hereby directed to convene a DPC
meeting within two months after the date of receipt of the
judgment and the aforesaid directions shall be
implemented within two months thereafter.
59. Instant petition is allowed in the above terms with no order as to
costs.
CM Nos. 5811/1992 (for ex-parte ad interim relief) &
687/1994 (u/O 6 R17 r/w S.151 CPC)
In view of the above, instant applications become infructuous
and disposed of as such.
SURESH KAIT, J
DECEMBER 21, 2012
RS/jg
