Delhi High Court
P.C. Gupta vs New Delhi Municipal Council & Ors. on 16 September, 2014
Author: S.Ravindra Bhat
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C) 2014/2014
Date of decision: 16.09.2014
P.C. GUPTA ..... Petitioner
Through: Mr. Ashish Deep Verma,
Advocate.
versus
NEW DELHI MUNICIPAL COUNCIL & ORS. .. Respondents
Through: Mr. Arun Bhardwaj, Addl.
Standing Counsel for NDMC.
CORAM:
MR. JUSTICE S. RAVINDRA BHAT
MR. JUSTICE VIPIN SANGHI
% MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)
1. The petitioner in these proceedings under Article 226 of the
Constitution of India, challenges an order of the Central
Administrative Tribunal (hereafter referred to as "CAT") dated
27.02.2013 dismissing his application - OA 279/2012. The petitioner
was aggrieved by his non-selection to a vacancy in the cadre of Junior
Engineer (JE), in the New Delhi Municipal Council (hereafter referred
to as "NDMC").
2. The brief facts are that the petitioner was appointed by NDMC
on 09.12.1993 as a Sub-Station Apprentice; he was later promoted as
Shift-in-Charge on 3.11.2000. The existing Recruitment Rules
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dealing with recruitment of Junior Engineer (Electrical) (hereafter
"JEE") were amended on 27.11.2007 which resulted in a change in the
cadre strength. As a result, the NDMC had to fill 27 vacancies in the
post of JEE. Apparently, by Circular dated 13.12.2008, the NDMC
decided not to conduct any trade test or interview; at the same time it
decided to give preference to degree holders as against the diploma
holders, and further decided to maintain the inter se seniority in terms
of the pay scale in the feeder cadre. The Selection Committee, after
considering the service records of 37 employees, recommended the
names of 26 as against 27 vacancies. The petitioner's name which
figured at Sl.No.28 of the seniority list was not reflected in the select
list. Apparently, all the posts earmarked for Scheduled Castes (SC)
candidates were filled and the lone vacancy earmarked for Scheduled
Tribe (ST) candidates remained unfilled, since the concerned
incumbent in the feeder category was found unfit. The petitioner felt
aggrieved and after exhausting departmental remedies, approached the
CAT by filing OA 3279/2011. This application was disposed of on
12.09.2011 by which the respondents were asked to consider the
petitioner's representations. Accordingly, he represented again; this
representation was rejected on 16.01.2012. He, therefore, approached
the CAT once again by filing OA 279/2012, which was rejected by the
impugned order.
3. It is argued by Mr. Ashish Deep Verma, learned counsel that the
denial of promotion to the petitioner proceeds on a fundamental error
of the CAT which rejected his application. It was urged that the
petitioner never sought a direction for de-reservation of the ST
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vacancy. On the contrary, his claim was always that 22 posts had
been earmarked for open merit (unreserved) candidates and that, as
against this, only 21 were filled. On the other hand, as against 4
vacancies reserved for SC candidates, 5 were selected and later
appointed. The approach adopted by the respondent NDMC,
therefore, was both arbitrary and discriminatory. It was emphasized
that the Supreme Court has repeatedly held that adequate promotional
opportunities have to be afforded to the public employees to
incentivize their performance and that the denial of promotion to the
petitioner is iniquitous and unjust.
4. Whilst the CAT, in its impugned order, no doubt recorded that
the plea for de-reservation cannot be accepted, the impugned order
also reveals that there was application of mind to the fact that the
service records of 37 employees in the feeder category were
considered. It is doubtless that only 21 unreserved category
candidates were recommended in the select list as against a possible
22. At the same time, the procedure adopted by the Selection
Committee which prepared the seniority list based panel can hardly be
faulted. The seniority list is a part of the record. It shows that the first
two candidates at Sl.Nos.1 and 2 are degree holders; the rest, from
Sl.Nos.3-37 are diploma holders. In the select list, which was also
drawn up on the basis of seniority, 5 'Shift-in-Charge' employees
figured at positions above the petitioner (Sl. Nos. 8, 12, 18, 24 & 25).
They were reserved category (SC) employees, senior to him. The
petitioner's position in the seniority list was at Sl. No. 28. In these
circumstances, it cannot be said that since the selection was based
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upon qualifications and seniority, the denial of promotion to him was
arbitrary. There is no rule or guideline which states that if, on the
basis of selection criteria - which in a given case is seniority based -
more than the earmarked number of candidates in a particular reserved
category are found fit for promotion, the State or its agency can fairly
deny them that benefit. In other words, if a reserved SC candidate is at
a position higher than an unreserved one, in a seniority based
promotion process, he cannot be denied promotion in favour of a
junior unreserved category candidate.
5. As a result, the NDMC, in this Court's opinion, did not act in a
discriminatory or arbitrary manner in filling the 26 vacancies, in the
manner that it did. As far as the ST vacancy was concerned, the extant
guidelines and rules do not permit conversion and consequent
diversion, at least in favour of the unreserved category candidates.
6. For the forgoing reasons, this Court holds that the petition has
to fail and is accordingly dismissed without any order as to costs.
S. RAVINDRA BHAT, J
VIPIN SANGHI, J
SEPTEMBER 16, 2014
/vikas/
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