Ajay Kumar vs The Chief Executive Officer, ...
2014 Latest Caselaw 4720 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                       Date of Decision: 23.09.2014

%                           W.P.(C) 6444/2014

      AJAY KUMAR                                      ..... Petitioner
                         Through:     Mr. Arvind Singh & Mr. Vipin
                                      Kumar Raghav, Advocates.

                         versus

      THE CHIEF EXECUTIVE OFFICER,
      DELHI JAL BOARD & ANR                    ..... Respondents

Through: Mr. Suresh Tripathy, Advocate.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE VIPIN SANGHI

VIPIN SANGHI, J. (OPEN COURT)

1. The petitioner assails the order dated 04.07.2014 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (CAT/ Tribunal) in O.A. No.669/2013 dismissing the same. The petitioner had preferred the said Original Application to assail the orders dated 16.01.2013 and 29.01.2013 - issued by the Assistant Commissioner, Delhi Jal Board (DJB) rejecting the petitioner's claim, and; to seek a direction that the petitioner's promotion to the post of Executive Engineer (Civil) be reckoned from, and his seniority be reckoned with effect from 26.05.1997. The petitioner also sought consequential relief and compensation.

2. The petitioner belongs to the Scheduled Caste (SC) category. He was appointed as Assistant Engineer (Civil) on 04.08.1989 in DWS & SDU (MCD), whereafter he continued to work in the DJB. The petitioner was chargesheeted in disciplinary proceedings. However, the same resulted in his exoneration vide order dated 06.09.1996.

3. The petitioner claimed that two of his juniors, namely, S/Shri Vijay Singh and Mool Chand were, in the meantime, given current duty charge of the post of Executive Engineer (Civil) vide office order dated 02.09.1996. The petitioner stated that he was given current duty charge of the said post on 03.01.1997. However, vide order dated 10.01.1997, the said order dated 03.01.1997 was kept in abeyance.

4. The petitioner claimed that vide order dated 16.06.1997, twelve Assistant Engineers (Civil), all belonging to General Category, were promoted on ad hoc basis to the post of Executive Engineer (Civil) and were granted financial benefits with effect from 26.05.1997. The petitioner stated that he made representation on 20.01.1997 claiming promotion against a reserved SC vacancy in the cadre of Executive Engineer (Civil) on ad hoc basis, by claiming that one vacancy for SC candidate existed in the said cadre.

5. The petitioner was given current duty charge as Executive Engineer (Civil) on 04.08.1997 and was promoted to the post of Executive Engineer (Civil) on ad hoc basis with effect from 13.11.2001. He was promoted to the said post on regular basis with effect from 04.07.2003.

6. The petitioner claimed in his Original Application that he should have been promoted on ad hoc basis to the post of Executive Engineer (Civil) with effect from 26.05.1997. He claimed that two of his juniors namely, S/Shri R.S. Negi and S.L.Meena were promoted to the said post with effect from 03.06.1999 vide order dated 24.07.2006. The petitioner made a representation raising his grievance on 11.10.2010, which was rejected on 27.10.2010.

7. At this stage, we may also notice that W.P. (C.) No.3482/1996 had been preferred by general category Assistant Engineers (Civil) before this Court questioning promotion of SC/ST category Assistant Engineers (Civil) to the post of Executive Engineer (Civil) in excess of their quota. This Court passed an interim order on 13.09.1996, wherein it was directed that the respondents shall not make any promotion/ appointment in the cadre of Executive Engineer (Civil) in excess of the quota prescribed for SC & ST categories under the rules/ instructions issued by the Government from time to time. This writ petition was transferred to the Tribunal and registered as TA No.752/2009 (S.K. Bansal and Others Vs. DJB/MCD). However, this transfer application was dismissed as infructuous in view of the judgment of the Supreme Court in M. Nagaraj Vs. UOI, 2010 (12) SCC 826.

8. Reverting back to the facts of this case, the petitioner made a further representation on 29.08.2011 claiming the same relief. However, the same was rejected on 16.01.2013 leading to filing of the Original Application. The Original Application was opposed by the respondents, firstly, on the ground of the same being barred by limitation, and, secondly, on merits.

After hearing learned counsel, the Tribunal accepted both the contentions of the respondents.

9. The Tribunal observed that the petitioner had made a representation dated 19.06.1997 against his not being promoted on ad hoc basis along with twelve other Assistant Engineers (Civil) vide order dated 16.06.1997. The same was not favourably considered by the respondents. However, the petitioner chose to initiate no action within the period of limitation, i.e. within eighteen months of the making of the representation dated 19.06.1997. The Tribunal also observed that though the petitioner's representation dated 11.10.2010 was rejected on 27.10.2010, he did not approach the Tribunal within the period of one year from 27.10.2010. He continued to make representations to the respondents. Merely because once again his representation was rejected on 16.01.2013, the petitioner did not get a fresh cause of action for filing the Original Application on 21.02.2013. The Tribunal referred to and relied upon the judgments of the Supreme Court in S.S.Rathore Vs. State of Madhya Pradesh, AIR 1990 SC 10; and Union of India and others Vs. A.Durairaj (dead) by LRs, (2010) 14 SCC 389, to conclude that the application was barred by limitation.

10. Even on merits, the Tribunal found against the petitioner. The Tribunal noticed that the roster based reservation was implemented from 13.09.1996. As per the said post based roster, out of 53 posts of Executive Engineer (Civil), 07 posts were reserved for SC category candidates. However, 10 posts were already filled by SC category candidates. Thus, there was excess representation of 03 SC category candidates at that time. Three posts were reserved for ST category candidates. Thus, cumulatively

10 posts were reserved for SC & ST category candidates in the cadre of Executive Engineer (Civil). Moreover, one SC and one ST category candidates were working on ad hoc basis. There was no post available in the SC category quota in the cadre of Executive Engineer (Civil) at the relevant time for giving ad hoc promotion to the petitioner.

11. The Tribunal rejected the petitioner's submission that the vacancy based roster was in operation as on 16.06.1997 by referring to the judgment of the Supreme Court in R.K. Sabharwal and Others Vs. State of Punjab and Others, AIR 1995 SC 1371, decided on 10.02.1995, wherein the Supreme Court held that the reservation for SC/ST/OBC should apply to posts, and not to vacancies. Thus, when twelve Assistant Engineer (Civil) belonging to general category were promoted on ad hoc basis vide order dated 16.06.1997, the petitioner had no right to claim reservation in any of the vacancies, as the SC category candidates were already occupying the reserved vacancies.

12. The Tribunal also took note of the fact that Sh. Sher Singh and Sh.Bhagmal Singh, who were promoted vide order dated 17.10.1996 were SC category candidates and were much senior to the petitioner. Their position in the seniority list was at Sl.Nos. 23 and 24 respectively, whereas the petitioner's position was at Sl.No. 62. In fact, one of these posts was reserved for ST category candidates. However, since ST category candidate was not available, both these posts were filled up by SC category candidates.

13. The petitioner's claim that two of his juniors namely, S/Shri R.S. Negi and S.L. Meena were promoted on 03.06.1999 vide order dated 24.07.2006

was also rejected, upon finding that both were ST category candidates and were promoted against posts earmarked for ST category.

14. Learned counsel for the petitioner has sought to urge the same submissions before this Court as well, as advanced before the Tribunal. It is contended that the Tribunal erred in holding that the Original Application was barred by limitation. Learned counsel submits that his representation was rejected in the year 2013, and consequently, a fresh cause of action arose in his favour. He further submits that the petitioner ought to have been promoted in the year 1997 on ad hoc basis when twelve other general category Assistant Engineers (Civil) were so promoted to the post of Executive Engineer (Civil).

15. Having heard learned counsel for the petitioner and perused the impugned order, we are of the view that there is absolutely no merit in this petition. In our view, the Tribunal has, in depth, examined not only the aspect of limitation but also the claim of the petitioner on merits. We agree with the findings of the Tribunal on both these issues.

16. Admittedly, the representation of the petitioner was rejected, firstly, on 27.10.2010. If the petitioner was so aggrieved, his cause of action arose at the relevant time - assuming that the cause of action did not arise earlier in the year 1997 itself when his earlier representation dated 19.06.1997 remained unresponded. Merely because the petitioner made further representations, which were rejected on 16.01.2013 and 29.01.2013, it does not follow that a fresh cause of action arose in favour of the petitioner. His grievance related back to his not being promoted on ad hoc basis as

Executive Engineer (Civil) when twelve other general category candidates were so promoted.

17. Even on merits, we find that the petitioner has no case at all. The petitioner has not been able to point out any error in the factual findings returned by the Tribunal, which clearly show that his not being promoted on ad hoc basis to the post of Executive Engineer (Civil) in the year 1997 was completely justified, since there was no reserved vacancy in the SC category at the relevant time, and subsequently, two SC category candidates were promoted, who were senior to him and the two other candidates whose promotion was cited by the petitioner, and who were junior to him, were ST category candidates and occupied the slots meant for them. The promotion of these junior Assistant Engineers (Civil) had no relevance to consider the claim of the petitioner.

18. For the above reasons, this Court finds no ground to interfere with the order of the Tribunal. The writ petition is, accordingly, dismissed.

VIPIN SANGHI, J.

S. RAVINDRA BHAT, J

SEPTEMBER 23, 2014 B.S. Rohella