Mr. Krishan Lal & Ors. vs The Chairperson & Anr.

Hon’ble Mr. Mohd. Jamshed, Member (A):

The applicant in this OA is seeking regularization of his ad hoc promotion to the post of Executive Engineer (EE) (Mechanical). The applicant joined as Junior Engineer (JE) (Auto) in New Delhi Municipal Council (NDMC) on 04.10.1979 and was subsequently promoted as Assistant Engineer (AE) (ENM) Class-II on 28.07.1986 and AE (Mechanical) Class-I on 29.03.1993. The applicant was assigned current duty charge for the post of EE (Mechanical) vide order dated 19.04.2010. He continued to work on current duty charge basis and was promoted as EE (Mechanical) on ad hoc basis vide order dated 01.10.2014. The applicant made several representations seeking regularization of his promotion as EE (Mechanical). However, no action was taken by the respondents. This OA was filed by the applicant prior to his superannuation. He superannuated on 31.01.2017 and passed away on 09.06.2021. He was accordingly substituted in this OA by his legal heirs as allowed by this Tribunal vide order dated 22.09.2021 in MA No. 2043/2021. The applicant was aggrieved by the denial of regular promotion to the post of EE (Mechanical) and had made several representations seeking redressal of his grievances. The present OA was filed by the applicant seeking the following relief(s):

It is the contention of the applicant that other similarly placed AEs were granted regular promotion as EEs in his department, whereas the same has been denied to him. He is seeking that his regular promotion be made from the date of existence of vacancies in 2010-12 and/or from the date of convening of Departmental Promotion Committee (DPC) in September, 2014. His claim is primarily based on the fact that the respondents cannot deny him the promotion on the pretext that the recruitment rules have not yet been finalized. He contends that in case revised recruitment rules under the New Delhi Municipal Council (NDMC) Act, 1994 have not been finalized, the old rules shall be applicable and, therefore, he should be granted regular promotion as was done in the case of two other AEs.

The respondents have filed counter affidavit opposing the OA. It is submitted that after the notification of NDMC Act, 1994, the service conditions of the employees working in NDMC is to be regulated in terms of the provisions of Section 33 to 43 of the Act. Section 40 of the NDMC Act provides that all appointments of Category ‘A’ posts are to be made after consultation with UPSC and as the process of finalization of recruitment rules in consultation with UPSC has not yet been completed hence, the regular promotions have not been made. It is also submitted that the case quoted by the applicant of other AEs are prior to 1994 notification and, therefore, the same cannot be compared with the situation prevailing post 1994. It is also submitted that the applicant’s case was, however, considered by the DPC and ad hoc promotion was granted to him vide order dated 01.10.2014 along with corrigendum issued on 21.10.2014, no financial loss has been caused to the applicant as he was granted the stipulated grade on ad hoc promotion.

We heard Ms. Rashmi Chopra, learned counsel for the applicant and Ms. Sriparna Chatterjee, learned counsel for the respondents and perused the pleadings.

The applicant joined NDMC as JE (Auto) on 04.10.1979. He was promoted as AE (Mechanical) Class-I on 29.03.1993. Thereafter, he was assigned current duty charge of EE (Mechanical) on 19.04.2010 vide office order dated 19.04.2010 without any monetary benefit. He continued to work as EE (Mechanical) on current duty charge basis and was promoted as EE (Mechanical) vide order dated 01.10.2014 on ad hoc basis vice vacancy. A corrigendum dated 21.10.2014 was issued subsequently and his pay scale was corrected to be Rs. 19000-39100 + Grade Pay of Rs. 7600/-. The applicant continued to make representations seeking regularization of his promotion as EE (Mechanical). However, no further action was taken by the respondents in this regard. The applicant has also enclosed a copy of internal communication from Joint Director (Electrical) to Director (Vigilance) and Director (Transport) dated 26.07.2016 seeking his work conduct report, vigilance clearance and ACR in connection with grant of regular promotion. The applicant contends that this internal communication in itself indicates that the process for his regular promotion has already begun by the respondents. The applicant retired w.e.f. 31.01.2017. This OA was filed by him primarily seeking directions to the respondents to grant him regular promotion from the date of existence of vacancies in 2010-12 and/or from the date of convening of Departmental Promotion Committee (DPC) in September, 2014. He has also sought regularization of his ad hoc promotion at par with two other AEs who have been regularly promoted as EE, namely Mr. A.K. Vashisht and Mr. A.K. Goel. The claim of the applicant is also based on his contention that not only there were two vacancies prior to his consideration for ad hoc promotion but that both these EEs were given regular promotion much before him against these posts. The applicant also claims that he was eligible in terms of his qualification and experience for promotion as EE (Mechanical).

The respondents on the other hand have relied upon the notification of NDMC Act, 1994 and the provision of this Act that the services conditions of the employees working in NDMC are to be regulated in terms of the provisions of Section 33 to 43 of the Act. They have also indicated that Section 40 of the NDMC Act provides that all appointments of Category ‘A’ post are to be made after consultation with UPSC.

On the other hand, the applicant has relied upon Resolution dated 17.02.2008 for grant of regular promotion for category ‘A’ and ‘B’ employees. This Resolution is in connection with grant of regular promotion and/or regularization of ad hoc promotion granted to eligible employees of Group ‘A’ and ‘B’ categories subsequent to enactment of NDMC Act, 1994 and prior to notification of recruitment rules for the respective posts. This Resolution has also taken note of the judgments of the Hon’ble Supreme Court and the Hon’ble High Court of Delhi. The recommendations, draft Resolution and the Council’s decision are extracted below:

Reliance has also been placed by the applicant on the same judgments quoted in 2008 Resolution. It is also stated that in the same department, one Mr. A.K. Goel, AE was appointed as EE (Mechanical) on 22.05.1990 on ad hoc basis and, thereafter, regularized vide order dated 30.10.1990. Another AE, namely, Mr. A. K. Vashisht was appointed on ad hoc basis vide order dated 15.10.1990 and, thereafter, regularized vide order dated 16.10.1991. These two EEs retired subsequently in 2009 and 2012. It is evident that there were two posts of EE one of which fell vacant on 31.12.2009 on superannuation of Mr. A. K. Goel and the other on 31.05.2012 on superannuation of Mr. A. K. Vashisht. The respondents have considered the case of the applicant and assigned him current duty charge of the post of EE (Mechanical) against the post falling vacant due to retirement of Mr. A. K. Goel, EE (Mechanical) vide order dated 19.04.2010. The applicant has continued to work as EE (Mechanical) on current duty charge basis during the period 2010-14.During this period, the applications were invited from amongst the departmental candidates for formation of panel of EE (Mechanical) in the scale of pay of Rs. 19000-39100 + Grade Pay of Rs. 7600/- vide circular dated 30.06.2011. The respondents formed a panel and subsequently vide posting order dated 01.10.2014, promoted the applicant as EE (Mechanical) from the approved panel on ad hoc basis in the pay scale of Rs. 19000-39100 + Grade Pay of Rs. 7600/-.

It is evident that the promotion of the other two AEs as EE (Mechanical) was made prior to notification of NDMC Act, 1994. The NDMC Act, 1994 provided that the service conditions of the employees working in NDMC is to be regulated in terms of the provisions of Section 33 to 43 of the Act. It is also indicated in Section 40 of the NDMC Act that all appointments of Category ‘A’ post are to be made after consultation with UPSC. As per Section 416 of the NDMC Act, 1994 any notification or rule or bye-law under the Punjab Municipal Act, 1911 i.e. not inconsistent with the provisions of NDMC Act, 1994 will prevail. Section 43 (1) (c) of the NDMC Act, 1994 states that the Council may make regulations with regard to the qualifications of the candidates and the manner of selection for appointment to Category ‘A’ and ‘B’ post in consultation with the UPSC. The respondents have submitted that the recruitment rules for various posts made earlier by the Committee under the Punjab Act, 1911 were not done in consultation with the UPSC or with the approval of Central Government as this was not required under the then Act. It is considered that the erstwhile recruitment rules under the Punjab Act, 1911 have become redundant and, therefore, no promotion can be made under the said recruitment rules.

It has been repeatedly mentioned in the counter affidavit submitted by the respondents that new recruitment rules are in the process of being made in consultation with the UPSC and, therefore, till these recruitment rules are finalized, regular promotion of EE (Mechanical) were not being made. However, the ad hoc promotion was granted in the prescribed grade to the applicant as EE (Mechanical). The judgments relied upon would be applicable in case, the applicant had not been granted the ad hoc promotion. In the instant OA, the applicant was selected on the basis of approved panel formed by the respondents for the post of EE (Mechanical) in terms of the applications invited and subsequently promoted as EE (Mechanical) on ad hoc basis in the specified pay scale. The applicant superannuated on 31.01.2017. As advised, he has passed away on 09.06.2021 and has been substituted in the OA by his legal heirs. Regularization of promotion to the post of EE (Mechanical) has obviously been held back by the respondents as the recruitment rules in consultation with the UPSC and the Government have not yet been finalized. There was a case for intervention of the Tribunal if, the applicant had not been granted even the ad hoc promotion to EE (Mechanical) despite a vacancy. However, it is evident that the respondents have called for applications for forming the panel from the eligible departmental candidates for the promotion of EE (Mechanical) and subsequently the applicant has been promoted as EE (Mechanical) on ad hoc basis in the specified pay scale. We are of the view that the action taken by the respondents does not suffer from any illegality or infirmity and the claim of the applicant is not tenable.

In view of the above mentioned, the OA being devoid of merit is, accordingly, dismissed. There shall be no order as to costs.